Date:
2010-03-09
File number:
0703-0319-A
Other citations:
477 AR 380 — 252 CCC (3d) 478 —86 WCB (2d) 968 — [2010] AJ No 256 (QL)
Citation:
R. v. Philip, 2010 ABCA 79 (CanLII), <http://canlii.ca/t/2cvbd>, retrieved on 2019-08-20
In the Court of Appeal of Alberta
Citation: R. v. Philip, 2010 ABCA 79
Date: 20100309
Docket: 0703-0319-A
Registry: Edmonton
Between:
Her Majesty the Queen
Respondent
- and -
Jason Steven Philip
Appellant
The Court:
The Honourable Mr. Justice Jack Watson
_______________________________________________________
Appeal from the Conviction by
The Honourable Madam Justice D.A. Sulyma
Sitting with a Jury
Convicted on the 3rd day of October, 2007
_______________________________________________________
_______________________________________________________
The Court:
[1] The appellant challenges his conviction by jury for second degree murder. We allow the appeal and direct a new trial. Three factors result in this outcome.
[2] First, the trial judge’s directions to the jury as to how to approach and evaluate exculpatory statements of the appellant tendered as part of the Crown’s case were flawed. Rightly, she attempted to distinguish between inculpatory statements and exculpatory statements on (a) the degree of proof required as to the content of the statements and (b) the overall effect of the statements upon the proof of the appellant’s guilt arising out of the content of the statements. For inculpatory statements, she told the jury that their testimonial content had to be proven to their satisfaction and, additionally, that they had to decide if they accepted the testimonial content of those proven statements in order to use them as part of the Crown’s case. For exculpatory statements, however, her directions fell short of what was required and contained error. She instructed the jury in a manner which was not consistent throughout her charge and, although sometimes correct, was erroneous more than once. Crucially, she told the jury in summing up the point:
Some or all of Mr. Philip's statements she testified to may help Mr. Philip in his defence. In particular, in earlier conversation, he maintained his innocence and that he had been sleeping. You must consider those statements that may help him along with all of the other evidence unless you conclude that he did not make them. In other words, you must consider all the remarks that might help Mr. Philip even if you are not entirely sure that he said them.
If you decide that Mr. Philip made a statement that may help him in his defence or if you cannot decide whether he made it, you will consider that statement along with the rest of the evidence in deciding whether you have a reasonable doubt about his guilt.
In summary, review each statement made by Mr. Philip individually. Decide if you accept he made that statement. If you do, then decide whether any part of it was true. Then decide what weight to give to the true parts of that statement in coming to your decision. [Emphasis added] [A.B.D. F24/4-22]
[3] The trial judge later carried the same theme forward stating, “[a]s I have cautioned you above, you must go through a process of determining whether you believe that statements attributed to Ms. Willard or Mr. Philip were made by each of them, whether they were true and what weight to attach to any such statements” [A.B.D. F31/43-F32/1]. These instructions are wrong in law as a jury should know that they do not have to be satisfied that the defendant’s statements put in evidence by the Crown were made or are true before they can consider them on doubt: R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 (QL), and R. v. Miller (1991), 1991 CanLII 2704 (ON CA), 68 C.C.C. (3d) 517, [1991] O.J. No. 2010 (QL). These directions were prejudicial because Crown counsel in argument invited the jury to compare the content of the appellant’s statements with other evidence.
[4] Second, the jury was not given the assistance they needed to properly evaluate evidence of the deceased’s statements heard during a 911 call to the police initiated by the appellant, not long prior to the killing, from the residence where the killing occurred. In the call, the appellant said a number of inconsistent things to the police initially about being slashed by a woman and wanting to press charges, and then other versions either alleging or denying violence by a female. During this call, the deceased is also overheard saying that the appellant was acting “weird”, and answering “probably” to an inquiry by the 911 officer about whether she and the appellant had been arguing, and that her knives were all over the floor. The Crown submits that these remarks by the deceased were properly admitted as ‘narrative’. No request was made by the Crown at trial to have her remarks admitted for their testimonial content as hearsay evidence pursuant to R. v. Khelawon,[2006] 2 S.C.R. 787, [2006] S.C.J. No. 57 (QL), 2006 SCC 57 (CanLII). There was no ruling sought nor made as to whether this evidence was more prejudicial than probative. It is clear to us that the jury would take what the deceased was recorded to have said as evidence of the events which they suggested occurred, and not merely as narrative.
[5] The trial judge invited the jury to make use of the deceased’s statements for more than narrative. She told them that they could consider the content of the 911 tape on the topic of motive although she also told them that no other persons “who were partying” saw “fighting or animosity between [the appellant] and [the deceased]” [A.B.D. F24/47-F25/2]. She also instructed the jury that the tape might impact their “assessment of the levels of intoxication” of both the appellant and the deceased, but the instructions did not clearly explain how circumstances such as intoxication might affect the reliability of the evidence. She then described the content of the 911 tape and went on to instruct the jury as follows:
If you find that the audio recording of the 9‑1‑1 call is accurate and that Constable Zaparyniuk has reliably reported what Mary Willard stated to him, you may use those parts of Constable Zaparyniuk's testimony and the audio recording to help you decide the case. Do not use what you conclude Constable Zaparyniuk has not reliably reported or what the audio recording has not accurately recorded. Bear in mind that Mary Willard was not here to be placed under oath. You could not observe her testify and could not be cross‑examined like the other witnesses you heard from, and that this may affect the weight you are able to give to this evidence. Also bear in mind that although someone on the tape clearly asks whose blood is this and requests Mr. Philip to lift his feet, none of the witnesses called could account for those statements being made or could remember there being blood in the house. The statements of the deceased should not be considered in isolation. They are only part of the evidence in this case and is to be taken into account along with other evidence that may make it more or less reliable. [A.B.D. F25/31-F26/4]
[6] In our view, these instructions were not sufficient to convey to the jury the circumspection that they needed to apply in dealing with this evidence. The trial judge received no assistance from the appellant’s counsel on this subject (who was not counsel on appeal), although we are not persuaded that the lapse of counsel was an intentional strategy. The sting is that this evidence was left to support the inference that there had been some form of argument between the deceased and the appellant, that he had been acting in a weird manner and that her knives had been placed on the floor. Unlike other evidence, this was recorded evidence, and the jury might reasonably regard it as powerful. The jury could reasonably have tied that evidence to the fact that some time later the deceased was stabbed to death with over 30 wounds and then her body was dragged behind a basement furnace. The rest of the Crown’s case being circumstantial (but for an alleged statement made to the appellant’s mother which was denied in other statements by the appellant), this evidence could have been highly significant. Assuming admissibility, the jury needed to understand how the circumstances within which the deceased’s remarks came into existence could have a significant impact on the weight of this evidence: see e.g. R. v. Pasqualino (2008), 233 C.C.C. (3d) 319, [2008] O.J. No. 2737 (QL), 2008 ONCA 554 (CanLII) at para. 62. As the appropriate method to convey the right advice to the jury on this topic is context-dependent and resides within the trial-sensitive discretion of a trial judge, we do not purport to instruct the next trial judge as to how to address this evidence. We say only that this evidence was not admitted for its testimonial content and there was no adequate instruction to the jury on how to weigh it.
[7] Third, there was no global or overall instruction to the jury that they should not use evidence that they heard in the trial that cast discredit on the appellant as a reason to think he was more likely to have committed this killing, or that he was in any event deserving of punishment. That type of instruction was possible here because adverse character evidence entered the trial without a specific and admissible character evidence purpose, such as motive, credibility or similar fact. Here some character evidence was incidental (as with respect to the appellant being on bail for something) or seemingly spontaneous (as with a former employer who characterized the appellant as “spooky”) or associated with other relevant evidence (as with the appellant telling the police about his gang markings). Appropriately, the trial judge provided mid-trial instructions about a conversation where the appellant was said to have discussed drug dealing, and she also provided direction in the charge about not speculating about an outstanding warrant for the appellant. But there were other aspects of the evidence which suggested that the appellant was a discreditable person with perhaps strange or violent inclinations for which there was no comment.
[8] We hasten to point out that a trial judge may well conclude that it is better wisdom to refrain from itemizing or addressing all matters suggesting bad character. Therefore we do not propose an iron rule of warning, nor any sort of shopping list instruction. We refer here to the benefit of a global reminder to the jury that they are judges, and that judges think in an objective and fair minded manner, and that judges reason fairly without being influenced by evidence that might lead them to have general unease or distaste for a defendant or to form an impression about the propensities of the defendant. As said, a global reminder is beneficial where the adverse character evidence that arises in the trial is not expressly admitted for a specific legitimate purpose, but emerges, as here, in the narrative. Where character evidence is expressly admitted for a purpose, more specific rules of evidence will be engaged. Again, judicial instruction to a jury on character evidence is context-dependent and resides within the trial-sensitive discretion of a trial judge. Troubling evidence was, unfortunately, simply left with the jury in this case. Were this the only issue of concern in the charge or the trial, we might not have regarded this as reversible error, but when this factor is associated with the others in this case as described above, we cannot find the verdict to be rescued by s. 686(1)(b)(iii) of the Criminal Code.
[9] The appeal is allowed and a new trial is ordered.
Appeal heard on March 2, 2010
Memorandum filed at Edmonton, Alberta
this 9th day of March, 2010
Ritter J.A. Watson J.A. Graesser J.
Appearances:
B.R. Graff
for the Respondent
M.T. Duckett, Q.C.
for the Appellant
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