R. v. Van

R. v. Van
Collection
Supreme Court Judgments
Date
2009-05-28
Neutral citation
2009 SCC 22
Report
[2009] 1 SCR 716
Case number
32681
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 32681
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716
Date: 20090528
Docket: 32681
Between:
Her Majesty The Queen
Appellant
and
Duc Van
Respondent
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 49)
Dissenting Reasons:
(paras. 50 to 102)
LeBel J. (McLachlin C.J. and Deschamps, Abella and Rothstein JJ. concurring)
Cromwell J. (Binnie, Fish and Charron JJ. concurring)
______________________________
R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716
Her Majesty The Queen Appellant
v.
Duc Van Respondent
Indexed as: R. v. Van
Neutral citation: 2009 SCC 22.
File No.: 32681.
2009: January 13; 2009: May 28.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for ontario
Criminal law — Trial — Charge to jury — Investigative hearsay and police opinion testimony — Omission of limiting instructions — Application of curative proviso — Accused claiming he was falsely named as attacker — Lead investigating officer providing narrative of investigative process — Officer’s testimony including hearsay and personal opinion — Accused found guilty but convictions set aside on appeal — Whether trial judge erred in failing to provide jury with limiting instruction concerning officer’s testimony — If so, whether conviction can be upheld pursuant to curative proviso — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (b)(iii).
K was stabbed, robbed, and left to die in his apartment but he survived. Initially, the police suspected the crime might have been committed by loan‑shark enforcers. However, when K was able to talk, he identified the accused V, his friend and gambling companion, as his attacker. The police then abandoned the loan‑shark theory. At trial, V claimed K had falsely named him as the attacker and advanced a theory that K, known for his involvement in illegal gambling, had actually been attacked by members of a loan‑sharking organization, and that the police had improperly focused their attention on him when K had named him as the attacker. To support this argument, he relied on the testimony of N, a senior police officer and the lead investigator of K’s case, who testified for the Crown to the steps taken by the police following the attack. In the course of his testimony, N made several statements that constituted hearsay and opinion evidence, including a statement that he believed V to be guilty. He also implied that his opinion was based in part on facts which corroborated K’s version of events but which were not before the jury. The trial judge did not provide the jury with a limiting instruction on the permissible and impermissible uses to which N’s evidence could be put and no objection was made to the lack of limiting instruction on this matter at trial. The jury found V guilty of attempted murder, robbery and forcible confinement. The majority of the Court of Appeal set aside the convictions, concluding that the trial judge’s failure to give a limiting instruction on the permissible use of the officer’s testimony amounted to a serious error that could not be saved by the curative proviso in s. 686(1) (b)(iii) of the Criminal Code . The dissenting judge perceived the error as minor in the context of the charge and the trial as a whole and would have upheld the convictions by resort to the proviso.
Held (Binnie, Fish, Charron and Cromwell JJ. dissenting): The appeal should be allowed and the convictions restored.
Per McLachlin C.J. and LeBel, Deschamps, Abella, and Rothstein JJ.: When investigative hearsay and opinion evidence is introduced pertaining to a defence of inadequate police investigation without a limiting instruction, a jury runs the risk of using the otherwise inadmissible evidence for an impermissible purpose. In this case, the absence of a limiting instruction with respect to the officer’s investigative hearsay and opinion evidence constituted an error of law, but this error was harmless and had no effect on the verdict. Accordingly, despite the error, the convictions can be upheld and must be restored pursuant to s. 686(1) (b)(iii). [3] [33]
The majority of the hearsay evidence that was introduced by means of N’s testimony was properly before the jury through the direct, admissible evidence of other witnesses. The hearsay evidence that was not before the jury through other sources was peripheral to the main issue at trial, and the jury’s use of this evidence for the truth of its contents would not have affected the verdict. The expression of N’s opinion in the absence of a limiting instruction likely had an insignificant impact on the verdict in the context of N’s testimony and the trial as a whole. N was relating to the jury the reasons for which he and his partner changed the focus of their investigation from known loan‑shark enforcers to V. It would be natural for him to suggest that he believed he was pursuing the appropriate leads by investigating V, and it would come as no surprise to a jury that a police officer will investigate the person that he or she thinks is most likely to be guilty. Furthermore, the trial judge had instructed the jury at numerous points in his charge that it was their opinion of the evidence, and only theirs, that mattered. While N was clearly a credible Crown witness, he was not the only Crown witness, nor was he the only police officer who testified to the steps taken during the investigation. [38‑40]
N’s reference to “information that I received” could not have led the jury to believe that he was in possession of inculpatory evidence not presented at trial. This statement was made on re‑examination, after a detailed description of the evidence that had unfolded in the course of the investigation. A reasonable jury would have interpreted his statement to refer not to undisclosed sources, but to the evidence that he had described only moments before, especially given defence counsel’s failure to object to the statement at the time. Counsel’s lack of objection to the errors at trial arose not from a calculated decision, but from the fact that the error was, in the context of the case, not significant. The jury were properly instructed on numerous occasions to rely only on evidence presented at trial and not to engage in speculation. The Crown’s question to N in which counsel asked if there was anything else concerning the investigation that might “assist the jury in determining the guilt or innocence of the accused” was misguided, but of little consequence and would not have caused any real prejudice to V. The jury would have been aware that she was merely seeking to conclude the examination‑in‑chief and to ensure that there was nothing the witness had neglected to mention. The suggestion that the jury would use this statement to infer that everything N had recounted previously could go to the ultimate issue of guilt is unfounded. [41‑43]
With respect to the trial judge’s instruction on the burden of proof and the presumption of innocence as they related to V’s evidence, any deficiency in the W. (D.) instruction was more than compensated for by the rest of the charge. [19] [23]
Per Binnie, Fish, Charron and Cromwell JJ. (dissenting): The trial judge’s omission of limiting instructions about N’s opinion evidence, based in part on a body of information not otherwise before the jury, was a serious error that may well have directly affected the jury’s assessment of the credibility not only of the accused V but of K. Credibility and existence of reasonable doubt on all the evidence were the key issues before the jury. Without the required limiting instructions on investigative hearsay and police opinion testimony, there were two related dangers that would go unaddressed: first, that the jury would improperly use the “investigative hearsay” evidence as evidence of its truth and, second, that the jury would wrongly attach weight to N’s personal opinion that V was guilty. In combination, these two problematic aspects were of more concern than either might have been on its own. Each reinforced the other. N’s opinion likely strengthened K’s credibility, as did the implication that N relied in forming that opinion on material not before the jury but which corroborated K’s evidence. [66] [74-75] [101]
The Crown’s position that N’s opinion testimony was harmless because the jury would have assumed in any event that he thought V was guilty overlooks the dangers of evidence put in the form of opinions: it usurped the function of the jury by drawing critical inferences — a conclusion about V’s guilt — from the facts known to the witness, and it obscured the factual basis for the conclusions reached. It was at best unclear and at worst a likely inference that N’s opinion was based solely on evidence other than that which had been admitted before the jury. Finally, there was a danger that the jury would put more credence in the improperly offered opinion simply because it came from an experienced and respected police officer, thus bolstering K’s credibility while undermining that of V. The Crown’s assertion that the jury likely assumed that the investigating officer thought V was guilty underlines the need for the limiting instructions rather than providing an excuse for their omission. [80-84] [86]
N’s testimony created the impression that his personal opinion about V’s guilt was based in part on a body of information not disclosed to the jury. Some of this information was expressly represented to the jury as corroborating K’s version of events while it was implicit in N’s testimony that other information also had this effect. The jury would have had the impression that N’s opinion about V’s guilt and about K’s credibility was based not only on his long experience as a police officer, but also on a body of information not disclosed to them. This impression compounded the seriousness of the omission of proper instructions that N’s opinion should be given no weight. [91-92]
Defence counsel’s failure to object at trial in this case cannot reasonably be viewed as a tactical decision by the defence and cannot on its own or in combination with other considerations assist the Crown in discharging its burden of showing that this serious legal error could not reasonably have had any impact on the verdict. [99‑100]
The error was not mitigated by other instructions. A proper instruction about this opinion evidence would not have undermined the defence and it is impossible to say what impact a proper instruction would have had on the jury’s deliberations. The Crown has not discharged its heavy onus of showing that there is no reasonable possibility that the omitted instruction would have made a difference to the outcome of this case. [101]
Cases Cited
Cited by LeBel J.
Referred to: R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Dhillon (2002), 161 O.A.C. 231; R. v. Mallory, 2007 ONCA 46, 220 O.A.C. 239; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152; R. v. Lane, 2008 ONCA 841, 243 O.A.C. 156; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239; Chibok v. The Queen (1956), 24 C.R. 354; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. S. (P.L.), [1991] 1 S.C.R. 909; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; R. v. Arcangioli, [1994] 1 S.C.R. 129; R. v. Chambers, [1990] 2 S.C.R. 1293.
Cited by Cromwell J. (dissenting)
R. v. Bevan, [1993] 2 S.C.R. 599; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Rockey, [1996] 3 S.C.R. 829; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239; R. v. Crosby, [1995] 2 S.C.R. 912; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; Graat v. The Queen, [1982] 2 S.C.R. 819; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Arcangioli, [1994] 1 S.C.R. 129; R. v. Chambers, [1990] 2 S.C.R. 1293.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46, ss. 686(1) (a)(ii), 686(1) (b)(iii).
Authors Cited
McCormick on Evidence, vol. 1, 6th ed. By Kenneth S. Broun, General Editor. St. Paul, Minn.: Thomson/West, 2006.
APPEAL from a judgment of the Ontario Court of Appeal (Winkler C.J.O. and Sharpe and Juriansz JJ.A.), 2008 ONCA 383, 236 O.A.C. 219, 92 O.R. (3d) 462, [2008] O.J. No. 1892 (QL), 2008 CarswellOnt 2734, setting aside the accused’s convictions and ordering a stay of proceedings. Appeal allowed, Binnie, Fish, Charron and Cromwell JJ. dissenting.
John McInnes, for the appellant.
Joseph S. Wilkinson and Philip Norton, for the respondent.
The judgment of McLachlin C.J. and LeBel, Deschamps, Abella and Rothstein JJ. was delivered by
LeBel J. —
I. Introduction
[1] Mr. Jack Kong was stabbed, robbed, and left to die in his apartment on the afternoon of December 21, 2000. Despite sustaining massive injuries, he survived and named the respondent, his erstwhile friend and gambling companion Mr. Duc Van, as his aggressor. At trial, Mr. Van claimed that Mr. Kong had falsely named him as the attacker and advanced a theory that Mr. Kong, known for his involvement in illegal gambling, had actually been attacked by members of a loan-sharking organization. This defence was not successful and the jury found him guilty of attempted murder, robbery and forcible confinement.
[2] The majority of the Ontario Court of Appeal allowed Mr. Van’s appeal and set aside the convictions on the grounds that one of the key Crown witnesses, a police officer, had offered his opinion on the accused’s guilt and implied that this opinion was based on information not before the jury at trial. For the majority, the trial judge’s failure to give a limiting instruction on the permissible use of the officer’s testimony amounted to a serious error that could not be saved by the curative proviso in s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C‑46 . Since the accused had already undergone three trials and had served most of his sentence, the majority entered a stay of proceedings. This case was heard as of right due to the dissenting judgment of Winkler C.J.O., who perceived the error as minor in the context of the charge and the trial as a whole. Winkler C.J.O. would have upheld the convictions by resort to the curative proviso.
[3] The appeal should be allowed. While the trial judge did err by failing to give a limiting instruction with respect to the officer’s testimony, this error was harmless and had no effect on the verdict. Accordingly, the convictions must be restored pursuant to s. 686(1) (b)(iii) of the Criminal Code .
II. Factual Background
[4] The respondent and Mr. Kong travelled together to Casino Niagara on December 20, 2000, the night before the attack. They played separate games for most of the evening but convened in the casino coffee shop near the end of the night. Some time between 3:15 and 4 a.m., the two men returned to the respondent’s van and began their trip back to Toronto. Mr. Kong testified that he left the casino holding approximately $6,000 in cash. The first unusual event that night occurred when Mr. Kong and the respondent interrupted their journey home to fix a flat tire. While crouching outside the van changing the tire, Mr. Kong experienced a sharp blow to his head. Mr. Kong testified that the respondent took the blame and apologized for the injury, explaining that a mallet had accidentally slipped from his hand. Mr. Kong said that he accepted his friend’s apology and, head bleeding from the injury, returned to the van. The respondent, however, denied either accidental or intentional involvement in Mr. Kong’s head injury at trial and claimed to have no idea how the injury was caused.
[5] Mr. Kong’s testimony of the subsequent events and the attempt on his life differed markedly from the evidence presented by Mr. Van at trial. Mr. Kong said that, upon their arrival in Toronto, the respondent stopped the van in the city’s waterfront district and got out to urinate in the snow. When he returned to the van, he sat quietly for several minutes and told Mr. Kong to “wait” when asked why they were stopped. After a few minutes, a police car appeared and the respondent resumed driving. The respondent dropped Mr. Kong off at his apartment sometime between 7 and 11 a.m. on December 21, 2000, and returned shortly after with some herbal medicine that he applied to his friend’s head injury. Later in the day, the respondent paid another visit to Mr. Kong’s apartment with some food. At the conclusion of their meal, he offered to apply a further dose of medicine to Mr. Kong’s head.
[6] While Mr. Kong lay face-down on the bed to facilitate the application, he was stabbed three times in the back by the respondent. He claimed that the two men struggled, at which point the respondent held a knife to Mr. Kong’s throat, robbed him, bound his hands and feet with a telephone cord, cut his phone connection and then washed the knife in the sink. Mr. Kong told the respondent to leave, promising not to call the police. At this, the respondent supposedly struck Mr. Kong in the face with a frying pan, shoved a plastic bag in his mouth, smothered his face with a pillow, and said he would not leave until Mr. Kong passed out. Feigning unconsciousness, Mr. Kong lay motionless while the respondent stamped on his groin and kicked him in the knee. The respondent checked Mr. Kong for a pulse and, apparently satisfied with the results, stole a large sum of money from Mr. Kong’s apartment and left him under a mattress on the floor.
[7] Somehow, Mr. Kong survived. After losing consciousness for some time, he staggered into the hallway of his apartment building and was found by a neighbour at around 6:30 p.m. He was treated for two collapsed lungs and stab wounds to the chest, abdomen, liver, back, neck, left arm and right hand, and was not able to speak until January 2, 2001.
[8] The respondent, for his part, claims to have been wrongly accused by Mr. Kong and offered a competing narrative of that day’s events. He denied making any pit-stop in the waterfront district of Toronto on that date, claiming that the innocuous event had actually occurred on a previous trip to the casino with Mr. Kong. He said that he went home after dropping Mr. Kong at the apartment on the morning of the attack, and called Mr. Kong from home to see if he needed to be taken to the hospital for his head injury. Mr. Kong allegedly denied needing to go to the hospital but asked for some food to be brought to him. The respondent testified that after dropping his daughter off at school, he returned to Mr. Kong’s apartment with congee and herbal medicine. Approximately 15 minutes later, the respondent left the apartment to pick up his ex-wife and drive her to an employment resource centre. By 10 a.m. he claimed to have been home in bed. He denied seeing Mr. Kong again that day and disavowed any involvement in the robbery and the assault.
[9] The respondent’s ex-wife, Ms. Le Hoa Du, testified at trial to a series of events that was generally consistent with the respondent’s version of his whereabouts between 7:45 and 10 a.m. The employment centre’s records confirmed that Ms. Du had signed in at the centre at 10:10 a.m. on December 21, 2000. However, her testimony provided no information pertaining to the respondent’s activities after that time.
[10] The respondent’s cellular phone records provide the only glimpse into his whereabouts on the afternoon of the attack and contradict his evidence at trial. According to these records, the respondent called Mr. Kong three times between 8:20 and 8:23 a.m. and called his ex-wife twice at 8:50 a.m., all from a location near the cellular tower at Spadina and Dundas, near Mr. Kong’s apartment. The respondent did not contest this evidence and testified that he had called Mr. Kong to be let into the apartment. More importantly, the records revealed that the respondent placed another call to an unidentified person at 4 p.m. from a location close to the Spadina and Dundas cellular tower. The respondent did not testify to any other circumstance that would have placed him in such close proximity to the scene of the attack about two and a half hours before Mr. Kong was found bleeding in the hallway of his apartment building.
[11] While Mr. Kong recovered in hospital, before he regained his ability to speak, the police began to investigate the attack. Initially they suspected that the crime might have been committed by loan-shark enforcers, since Mr. Kong was known in the Chinatown community for his gambling habits and his involvement in running an illegal cash lottery. When Mr. Kong spoke to the officers on January 2, 2001 and identified the respondent as his attacker, however, the police abandoned the loan-shark theory and focused their investigation exclusively on Mr. Van.
III. Judicial History
A. Ontario Superior Court of Justice
[12] The respondent was convicted of attempted murder, robbery, and forcible confinement by a jury presided over by Brennan J. on April 10, 2003. After crediting Mr. Van for time served, the trial judge imposed an effective sentence of seven years’ imprisonment. The 17-day trial was preceded by two other trials, both of which were declared mistrials due to hung juries.
[13] At trial, the respondent gave evidence in his own defence. He advanced the theory that the attack was more likely carried out either by a jealous husband who learned that his wife had stayed at Mr. Kong’s house after a casino visit, or by people to whom Mr. Kong owed money, such as loan sharks or members of an Asian gang. He alleged that the investigating police had improperly focused their attention on him after he was named by Mr. Kong as the perpetrator of the attack. To support this argument, he relied on the testimony of Crown witness Det. Sgt. Nealon, a 19-year veteran of the Toronto Police Service. Detective Sergeant Nealon was the lead investigator of Mr. Kong’s case, and testified for the Crown to the steps taken by the police following the attack. In the course of his testimony, Det. Sgt. Nealon made several statements that constituted hearsay and opinion evidence. Brennan J., however, failed to provide the jury with a limiting instruction on the permissible and impermissible uses to which Det. Sgt. Nealon’s evidence could be put. No objection was made to the lack of limiting instruction on this matter at trial.
B. Court of Appeal for Ontario, 2008 ONCA 383, 92 O.R. (3d) 462 (Sharpe J.A. for the majority, Winkler C.J.O. in dissent)
[14] The respondent appealed on several grounds, two of which were unanimously dismissed by the court. The first of these concerned the respondent’s submission that the trial judge failed to explicitly refer to the defence evidence in its entirety when instructing the jury on the burden of proof and the presumption of innocence, as mandated by R. v. W. (D.), [1991] 1 S.C.R. 742. While the court did find the instruction “deficien[t]” in this regard, it did not believe that this deficiency amounted to an error (para. 20). Second, the respondent claimed that the trial judge failed to give the usual instruction regarding the permitted use of Mr. Kong’s prior consistent and inconsistent statements. The court held that this failure was not objected to at trial and did not result in any prejudice or harm to the accused. Accordingly, it did not constitute a reversible error.
[15] The Court of Appeal divided on the issue of the trial judge’s failure to give a limiting instruction with respect to the evidence of Det. Sgt. Nealon. Writing for the majority, Sharpe J.A. agreed that Det. Sgt. Nealon’s testimony was admissible for the limited purpose of creating a narrative of the investigation in anticipation of the defence argument that the investigation had been conducted improperly. However, the majority held that the jury should have been instructed in accordance with R. v. Dhillon (2002), 161 O.A.C. 231, and R. v. Mallory, 2007 ONCA 46, 220 O.A.C. 239, that the hearsay and opinion evidence contained in the narrative were not to be used in the overall determination of the accused’s guilt or innocence. The majority was especially concerned with Det. Sgt. Nealon’s statement that he believed the respondent to be guilty, and held that his statements on re-examination suggested that he had formed this opinion based on evidence that was not before the jury.
[16] Sharpe J.A. refused to apply the curative proviso in s. 686(1) (b)(iii) of the Criminal Code to uphold the convictions, as the absence of a limiting instruction with respect to Det. Sgt. Nealon’s testimony was not a minor or harmless error: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823. Neither was the Crown’s case against the accused overwhelming, as evidenced by the two hung juries at the earlier trials. Detective Sergeant Nealon’s suggestion that there was some inculpatory evidence not disclosed to the jury upon which he based his opinion of the accused’s guilt could have influenced the jury such that the verdict would not necessarily have been the same but for the error. The majority allowed the appeal, set aside the convictions and issued a stay of proceedings.
[17] Winkler C.J.O., dissenting, would have dismissed the appeal and upheld the convictions under s. 686(1) (b)(iii) of the Criminal Code . He was satisfied that the error was harmless in the overall context of the evidence and the defence theory presented at trial. Moreover, the evidence against the respondent was compelling: the respondent could not account for Mr. Kong’s head injury suffered on the return trip to Toronto; he could not account for his whereabouts around the time the attack was likely to have occurred; he could not explain the cell phone records that placed him near Mr. Kong’s apartment around the likely time of the attack; and the victim directly identified the respondent as his aggressor. The respondent could not rebut Mr. Kong’s evidence and instead relied on speculation about the alternative loan-shark theory. Given the strong case against the respondent, Winkler C.J.O. was not persuaded that the jury would have relied on Det. Sgt. Nealon’s testimony “for an improper purpose in a way that was prejudicial to the accused” (para. 58). Since a limiting instruction would not have affected the jury’s verdict, Winkler C.J.O. would have dismissed the appeal.
IV. Analysis
[18] The first issue before this Court is whether the trial judge erred in failing to provide the jury with a limiting instruction concerning the testimony of Det. Sgt. Nealon. Should this failure constitute an error of law, the next question is whether the conviction can still be upheld pursuant to the curative proviso in s. 686(1) (b)(iii) of the Criminal Code . I believe that the Court of Appeal correctly identified an error in the trial judge’s charge to the jury, but I disagree that the curative proviso has no application.
[19] The respondent also raises one of the issues unanimously disposed of at the Court of Appeal, concerning the adequacy of the trial judge’s instruction on the burden of proof and the presumption of innocence as they related to the respondent’s evidence. The respondent claims that the Court of Appeal found an error in the trial judge’s failure to explicitly draw the jury’s attention to the defence evidence other than the accused’s own testimony in his instruction on the burden of proof, and that the court should have considered this error in its application of the curative proviso. This issue can be resolved at the outset.
A. The W. (D.) Instruction
[20] In W. (D.), this Court held that a jury should be instructed that they must acquit if (1) they believe the evidence of the accused, (2) they do not believe the accused’s testimony but are left in reasonable doubt as a result of it, or (3) they do not believe the accused’s testimony but still have reasonable doubt as to the accused’s guilt based on the balance of the evidence as a whole (p. 758). This instruction is particularly important when the credibility of the accused is pitted against the credibility of a Crown witness, as in this case. The charge as a whole must be considered in order to determine whether the jury were properly instructed; the wording from W. (D.) must not be followed to the letter.
[21] The trial judge delivered the following instruction to the jury regarding the application of the burden of proof to the respondent’s evidence:
If you believe Mr. Van’s evidence that he did not commit the offences charged, you must find him not guilty.
Even if you do not believe Mr. Van’s evidence, if it leaves you with a reasonable doubt about his guilt or about an essential element of the offence charged, you must find him not guilty.
Now even if Mr. Van’s evidence does not leave you with a reasonable doubt of his guilt or about an essential element of the offence charged, you may convict him only if the rest of the evidence that you do accept proves his guilt beyond a reasonable doubt. I think you heard that same instruction from both counsel . . . but keep in mind that what it does, it embodies the presumption of innocence and the burden of proof that are at the backbone, the underlying safety of our system of criminal justice. [A.R., at pp. 1195-96]
[22] The respondent maintains that the trial judge’s reference to “Mr. Van’s evidence” was insufficient and that the instruction should have specifically referred to the other defence evidence, such as the cell phone records and Ms. Du’s testimony. However, I agree with the Court of Appeal’s conclusion that this deficiency did not rise to the level of a reversible error.
[23] The purpose of the W. (D.) instruction is to ensure that the jury know how to apply the burden of proof to the issue of credibility. The jury must be cautioned that a trial is not a contest of credibility between witnesses, and that they do not have to accept the defence evidence in full in order to acquit (W. (D.), at p. 757; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9). If there is an error in the charge on this issue, the fact that it is correctly related at other points in the charge suggests that the jury were properly instructed (W. (D.), at p. 758). I am satisfied in this case that the jury would have understood how to apply the presumption of innocence and the burden of proof to all the evidence presented at trial. At numerous points in his charge to the jury, the trial judge clearly conveyed that the Crown always bears the burden of proof and that if the jury had any reasonable doubt based on the evidence as a whole, they must acquit. The jury would not have been misled by the judge’s instruction into thinking that they were required to accept all the other evidence called by the defence in order to acquit, as submitted by the respondent. I believe that any deficiency in the W. (D.) instruction was more than compensated for by the rest of the charge.
B. Detective Sergeant Nealon’s Testimony
[24] The main issue in this appeal concerns the permissible and impermissible uses of Det. Sgt. Nealon’s testimony, and whether the absence of a limiting instruction on this matter constitutes an error that can be cured by the remedial provision in s. 686(1) (b)(iii) of the Criminal Code . I will first examine the alleged error in the proceedings concerning Det. Sgt. Nealon’s testimony.
[25] The respondent crafted a defence of defective investigation. He claimed that the investigating police officers improperly focused their attention on him once Mr. Kong had named him as the aggressor, to the exclusion of all other avenues of investigation. In particular, the respondent claimed that the investigating officer’s initial suspicion that the crime was related to Mr. Kong’s gambling activities (the “loan-shark theory”) was disregarded without sufficient reason once Mr. Kong identified the respondent. Lower courts have held that when the defence advances a theory of inadequate police investigation, the trial judge may rule that investigative evidence including hearsay is admissible for the purpose of creating a narrative of the investigation. As the Ontario Court of Appeal pointed out in Mallory, however, the risk in this defence strategy is inherent in the fact that the Crown is then entitled to lead evidence of the police investigation that is relevant to the line of attack (para. 87; see also R. v. Lane, 2008 ONCA 841, 243 O.A.C. 156). That is, the Crown might be permitted to lead investigative hearsay and opinion evidence that would be otherwise inadmissible but for its part in the narrative of the investigation.
[26] Lower courts have also decided that a trial judge who admits evidence of this kind must provide the jury with a limiting instruction as to its permissible and impermissible uses. The jury must be informed that they can only use evidence of this type for the limited purpose of setting out a narrative of the procedures that were followed in the investigation. They must be cautioned against relying on hearsay and opinion evidence that would be otherwise inadmissible in their determination of the guilt or innocence of the accused (Dhillon, at para. 51; Mallory, at para. 92).
[27] In this case, the Crown called several witnesses to demonstrate the adequacy of the police investigation and the reasonable basis upon which the officers shifted their attention from Asian gangs and loan-sharking organizations to the respondent, Mr. Van. Detective Sergeant Nealon testified for the Crown and provided a complete narrative of the steps he took as lead investigator once he and his partner Det. Morton, a member of the Special Task Force on Asian Organized Crime, were assigned to Mr. Kong’s case. He explained that the two of them followed tenuous leads based on the notes provided to them by the officers who had first been assigned to the case, and that while Mr. Kong remained unable to communicate with them, they formed a working theory that the attack was connected with loan sharks or Asian gangs.
[28] Detective Morton testified that he initially suspected the involvement of loan sharks because of the fact that the victim’s hand had been “almost severed”, which to him indicated the assailant’s desire to send a clear warning to the victim and to the community that the money must be repaid. Detective Morton testified that this act is typical of loan sharks, as they do not usually kill their debtors. In his words, “[d]ead men don’t pay” (A.R., at p. 731). Following this lead, Det. Morton compiled a number of photographs of possible suspects and brought them to the hospital on the day of the fruitful interview with Mr. Kong on January 2, 2001. The photographs were never shown to Mr. Kong, however, as the officers’ working theory was abandoned when the victim promptly identified his attacker as “Man Tak”, that person being the respondent Mr. Van. At that time, Det. Morton also discovered that the wound on Mr. Kong’s hand was simply a result of Mr. Kong’s attempt to defend himself during the stabbing, which further eroded the basis for the loan-shark theory. Detective Sergeant Nealon also provided detailed testimony of the officers’ subsequent attempts to locate Mr. Van and to obtain corroborating evidence of Mr. Kong’s story.
[29] Throughout his testimony, Det. Sgt. Nealon made a number of statements that helped to create a coherent narrative of the investigative process, but that amounted to hearsay. While certain lines of questioning were not permitted by the trial judge, much hearsay evidence ended up before the jury in this way. Over and above the problem with hearsay, the Court of Appeal found two aspects of Det. Sgt. Nealon’s testimony particularly troubling. First, Crown counsel concluded her examination-in-chief with the following question:
Q. Anything else involved in the investigation that you can think of right now that might assist the jury in determining the guilt or innocence of the accused? I think we covered everything. [A.R., at p. 282]
In so doing, the Court of Appeal held that the Crown ran the risk of suggesting to the jury that Det. Sgt. Nealon’s testimony was to be used not only to prove the adequacy of the investigation, but as direct evidence of the accused’s guilt.
[30] The second significant problem with Det. Sgt. Nealon’s testimony concerns the following exchange between the officer and Crown counsel upon re-examination:
Q. Why did the information from Mr. Kong narrow your search?
A. Following that interview with Mr. Kong and the information that he did give me, over the next twenty hours a lot of information unfolded that allowed me the only path to take, and as a result of all the information that unfolded, and it seemed to me the other paths would be negligible to follow, because as far as I was concerned I was being led down the proper path for this from the information from Jack Kong.
Q. All right.
Then I guess, just not to put too fine a pint [sic] on it, but the follow-up question, why didn’t you continue looking at gangs or loans or loansharks, why didn’t you continue down that path?
A. Because, in my opinion, Duc Van is the one that is responsible for this act.
Q. Based on?
A. My investigation --
Q. Okay.
A. -- and information that I received. [Emphasis added; A.R., at pp. 306-7.]
[31] In this exchange, Det. Sgt. Nealon not only professed his personal opinion as to the respondent’s guilt, but also left open the possibility that this opinion was formed on the basis of information that may not have been before the jury at trial. The Court of Appeal held that the jury might have inferred from this statement that the officer had access to inculpatory evidence that was not presented at trial.
[32] The trial judge did not include a limiting instruction with respect to the officer’s testimony in his charge to the jury. Notably, defence counsel did not object to the troubling portions of the officer’s testimony at the time the statements were made and did not make any submissions on this issue during post-charge objections. (The consequences of this failure to object will be considered at greater length in these reasons.) Regardless, the Court of Appeal was unanimous in finding that the judge’s failure to limit the use of investigative hearsay and opinion evidence for narrative purposes constituted an error, a conclusion conceded by the appellant.
[33] I agree with the Court of Appeal on this point; indeed, it would be difficult to conclude otherwise. The law is clear: when investigative hearsay and opinion evidence is introduced pertaining to a defence of inadequate police investigation without a limiting instruction, a jury runs the risk of using the otherwise inadmissible evidence for an impermissible purpose: Dhillon and Mallory. My colleague and I are in agreement that, in this case, the absence of a limiting instruction with respect to the officer’s investigative hearsay and opinion evidence constituted an error of law. I will now consider whether the conviction can be upheld despite the error. In my opinion, it can.
C. The Curative Proviso: Section 686(1) (b)(iii) of the Criminal Code
[34] It is worthwhile taking one small step back for a moment to acknowledge that not every error in a criminal trial warrants appellate intervention. Under s. 686(1)(a) of the Criminal Code , an appeal against a conviction may be allowed only in the event of an error of law, an unreasona