Citation: R. v. Roulette (K.T.

), 2015 MBCA 9

Date: 20150126
Docket: AR13-30-08071

IN THE COURT OF APPEAL OF MANITOBA

Coram:

Mr. Justice Alan D. MacInnes

Madam Justice Holly C. Beard
Mr. Justice Marc M. Monnin

BETWEEN:
HER MAJESTY THE QUEEN

Respondent
- and KENNETH TOBY ROULETTE

(Accused) Appellant

)
)
)
)
)
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)
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)
)
)
)

G. G. Brodsky, Q.C.
for the Appellant
D. L. Carlson and
A. Y. Kotler
for the Respondent
Appeal heard:
October 15, 2014
Judgment delivered:
January 26, 2015

MacINNES J.A.
[1]

The accused appeals his conviction on two counts of first degree

murder.
[2]

He raises a number of issues on appeal. These include alleged

infringement of his ss. 7 and 11 Charter rights related to delayed disclosure

(see the Canadian Charter of Rights and Freedoms (the Charter)), and the
failure of the judge to order a stay of proceedings under s. 24(1) of the
Charter by reason of the alleged infringement; the admission of preliminary
inquiry testimony from a deceased witness; the instruction to jurors that they
could not draw an adverse inference from the Crowns failure to call certain
witnesses, thus reversing the burden of proof onto the accused; the

See: 2013 MBQB 156, 298 Man.R. (2d) 12; 2013 MBQB 232, 298 Man.R. (2d) 83

Page: 2

admission of prejudicial evidence against the accused; and the Crowns

failure to call or produce certain witnesses at trial.
[3]

As will be seen from the reasons that follow, I am not persuaded

that the judge erred in respect of any of the issues, and accordingly, I would
dismiss the accuseds appeal.
Facts
[4]

On January 31, 2009, Jesse Henderson (Henderson) and Dennis

Baptiste (Baptiste) were found beaten and stabbed to death in Baptistes

suite at 729 Maryland Street in Winnipeg.
[5]

Approximately one year later, two individuals, Russell Glow

(Glow) and Philip Asham (Asham), separately contacted the police with
information pertaining to the killings. At the time Glow and Asham did so,
they were each in custody on unrelated charges and provided the information
in the hope that, in exchange, the charges against them would be dropped.
[6]

In fact, Glow entered into, and testified under, an immunity

agreement.

The charges outstanding against him were stayed and he

received some compensation from the government for witness protection

expenses.
[7]

As regards Asham, no immunity agreement was executed, but the

charges against him were stayed (although he disputes that that occurred in
exchange for his evidence).
[8]

Following receipt of information from Glow and Asham, the

Page: 3

accused was arrested on March 3, 2010, and charged with first degree
murder in respect of the deaths of Henderson and Baptiste. In the course of
the trial, forensic evidence was introduced which linked the accused to the
murders in several ways. As well, there was evidence that the accused made
statements to each of Glow and Asham in which he admitted killing the two.
He told Glow that he was starting a business of murder for hire, that these
were his first job and that if Glow, or anyone Glow knew, needed such
work done, he was available. The accused telephoned Asham shortly after
the killings and told Asham that he had just murked i.e., murdered, two
guys.
[9]

There was also evidence from other witnesses at trial whose

testimony was consistent in various respects with the evidence of Glow

and/or Asham regarding material facts pertaining to the murders.
[10]

By reason of the criminal records and lifestyles of Glow and

Asham, they were treated as Vetrovec witnesses. Thus, instructions were

given by the judge to the jury to consider the evidence of each with
skepticism and concern, as it would be dangerous to rely upon their
evidence. The jury was instructed to look to other evidence which could
corroborate or confirm the evidence of each of Glow and Asham, so as to
give the jury some comfort in relying upon their evidence should it choose to
do so.
[11]

The accused alleges incomplete and late disclosure of relevant

information from the Crown concerning the Crowns case and of undue
delay in bringing the matter to trial. Ultimately, the accused moved to have

Page: 4

the charges stayed by reason of the imperfect disclosure and the delay.
Although the judge agreed that there had been some delay attributable to the
Crown, he dismissed the accuseds application for a judicial stay.
[12]

As well, while Glow testified at the accuseds preliminary inquiry,

he died prior to trial. The Crown sought admission of Glows preliminary

inquiry evidence at trial, a motion the accused opposed. After consideration,
the judge admitted the evidence, but gave the jury a series of warnings about
its potential shortcomings.
[13]

The jury, following completion of the evidence, the submissions of

counsel and the judges charge to the jury, and after deliberation, convicted
the accused of both counts.
Grounds of Appeal
[14]

The accused asks that this court set aside the conviction in respect

of both counts and order a new trial. He raises eight issues, which can be
condensed to five, for consideration on the appeal, namely:
1. Did the judge err in failing to find a breach of Charter ss. 7

and/or 11(b) on the basis of delayed or incomplete disclosure,

and in failing to order a stay of proceedings under Charter
s. 24(1) as a result?
2. Did the judge err in admitting the preliminary inquiry testimony
of Glow?
3. Did the judge err in instructing the jurors that they could not

Page: 5

draw an adverse inference from the Crowns failure to call

certain witnesses and did that instruction reverse the burden of
proof?
4. Did the judge err by allowing the introduction of evidence that
the accused had been in custody, had the number 187 tattooed
on his arm and was involved in drug trafficking?
5. Did the Crown act contrary to law by not producing certain
witnesses at the trial?
Standard of Review
[15]

The accused argues that the issues on appeal raise questions of law

and thus, the standard of review with respect to each is that of correctness.
[16]

The Crown asserts that, with respect to issue number one, the

standard of review is one of significant deference. It submits that, to the

extent the accuseds arguments are based on Charter breaches, he must
demonstrate an error of law or that the judges finding was unreasonable.
The Crown says that a judges decision, balancing prejudice to the accused
with societys interest in having a trial on the merits, is one entitled to
significant deference. See R. v. Byron (M.C.), 2001 MBCA 81 at para. 10,
156 Man.R. (2d) 154; and R. v. Evans (E.D.), 2014 MBCA 44 at para. 3, 306
Man.R. (2d) 9.
[17]

As well, the Crown argues that, to the extent the accused seeks a

stay of proceedings based on abuse of process, appellate intervention is

warranted only where a judge misdirects him or herself in law, commits a

Page: 6

reviewable error of fact, or renders a decision that is so clearly wrong as to

amount to an injustice. See R. v. Babos, 2014 SCC 16 at para. 48, [2014] 1
S.C.R. 309.
[18]

As to issue number two, the Crown argues that both the application

of s. 715(1) of the Criminal Code (the Code), and the decision whether to
admit hearsay evidence for its truth, are issues within the discretion of the
judge. Absent an error in principle, the decisions are entitled to deference.
[19]

The Crown agrees with the accused that the third and fifth issues

on appeal raise a question of law for which the standard of review is

correctness.
[20]

The Crown submits that the fourth issue on appeal involves the

balancing by the judge of probative value and prejudicial effect in the

circumstances of the particular case. Being an exercise of discretion by the
judge, the standard of review is highly deferential.
[21]

In my view, the Crowns position (and that of the accused

regarding issues three and five) is correct as regards the standard of review
pertaining to each of the issues on appeal.
[22]

1.

I turn then to consider the issues on appeal.

Did the judge err in failing to find a breach of Charter ss. 7 and/or

11(b) on the basis of delayed or incomplete disclosure, and in failing to

order a stay of proceedings under Charter s. 24(1) as a result?
[23]

The accused asserts that the Crowns delay in providing disclosure,

Page: 7

and the incompleteness of the disclosure, deprived him of the ability to make
full answer and defence to the charges. This delay, he says, was contrary to
the principles of fundamental justice and contributed to the trial not being
conducted within a reasonable time in breach of his rights under ss. 7 and
11(b) of the Charter. In the result, the accused submits that a judicial stay of
proceedings ought to have been entered under s. 24(1) of the Charter.
[24]

Alternatively, the accused submits that the preliminary inquiry

evidence of Glow ought to have been excluded at trial.

[25]

The accused argues that implicit within the foregoing arguments

are concerns traditionally raised under the common law doctrine of abuse of
process and says that there is no distinction at law between the common law
doctrine of abuse of process and Charter requirements regarding abusive
conduct.
[26]

The accused refers to Babos, wherein the court said that there are

two categories of state conduct that warrant a stay of proceedings; namely,

the main category, being conduct affecting the fairness of an accuseds
trial, and the residual category, being conduct that risks undermining the
integrity of the judicial process.
[27]

The accused refers to the three-step test enunciated in Babos for

determining whether a stay of proceedings is warranted; namely (at

para. 32):
.
(1)

[P]rejudice to the accuseds right to a fair trial or to the

integrity of the justice system that will be manifested,

Page: 8

perpetuated or aggravated through the conduct of the trial,

or by its outcome ;
(2)

[N]o alternative remedy capable of redressing the

prejudice; and

(3)

Where there is still uncertainty over whether a stay is

warranted the court is required to balance [an accuseds]
interests in favour of granting a stay against the interest
that society has in having a final decision on the merits
.

The accused argues that both the main and the residual categories are
engaged in this case.
[28]

The accused submits that, on a balance of probabilities, he has

been prejudiced in, or has suffered an adverse effect on, his ability to make
full answer and defence by the delayed and incomplete disclosure.
[29]

This deficient disclosure, says the accused, impaired his ability to

effectively challenge on cross-examination the witness Glow, and other

witnesses, at the preliminary inquiry. He argues that because Glow died
after the preliminary inquiry and before trial, he was never able to fully and
effectively cross-examine him, notwithstanding subsequent disclosure by the
Crown of material which it had in its possession but had not disclosed prior
to the preliminary inquiry.
[30]

The prejudice, says the accused, was so severe that the only

remedy was either a stay of proceedings or the refusal of the judge to admit
Glows preliminary inquiry evidence at the trial.
[31]

As well, the accused submits that although the judge found that the

Page: 9

Crown was responsible for significant delay and held that the delay, in
particular, the late disclosure, was conduct for which the Crown should not
be proud (at para. 83), he erred in not appropriately considering step two of
the test by failing to turn his mind in any meaningful way to the
consideration of an alternative remedy capable of redressing the prejudice.
[32]

The Crown argues that the accuseds assertion that his s. 11(b)

right to trial within a reasonable time had been infringed is premised

principally upon the argument that, with proper and timely disclosure, the
preliminary inquiry could have been scheduled earlier.
[33]

This argument, says the Crown, was accepted by the judge, who

found that there had been four months of excessive delay in the period
leading up to the scheduling of the preliminary inquiry and that the Crown
was responsible for three of those four months.

Notwithstanding, he

concluded that, given the serious nature of the charges and the societal
interest in criminal prosecutions being decided on their merits, the delays did
not warrant the remedy of a stay of proceedings. His decision, submits the
Crown, is entitled to considerable deference.
[34]

As regards the accuseds argument that he is entitled to a stay of

proceedings for abuse of process under ss. 7 and 24(1) of the Charter
because the alleged disclosure deficiencies compromised trial fairness and
undermined the integrity of the judicial process, the Crown asserts that the
accuseds arguments before the judge were not framed in abuse of process
and says that the accused is thus attempting to raise a Charter argument not
made at trial. Such an argument, says the Crown, should only be allowed in

Page: 10

exceptional circumstances, where a miscarriage of justice would

otherwise result.
[35]

The Crown submits that the judge concluded that, although late,

for the most part the disclosure was received by the accused well before the
trial and that his right to full answer and defence had not been prejudiced.
The Crown says that that conclusion was amply supported by the evidence.
[36]

The Crown submits, in all of the circumstances, the judges

conclusion that the accuseds ability to defend himself had not been
prejudiced was not unreasonable. Moreover, a stay of proceedings is an
extraordinary remedy only granted in the clearest of cases. The Crown
argues that the judges finding that this was not such a case is entitled to
deference. Further, as regards the accuseds attempt to advance a new
Charter argument on appeal, the Crown asserts that he has not demonstrated
an exceptional circumstance where such a new argument need be entertained
in order to avoid a miscarriage of justice.
Analysis
[37]

The judge heard the accuseds motion for judicial stay on

June 10, 2013. He reserved his decision, which was delivered June 25,
2013. The judges reasons for decision are very thorough and demonstrate
clearly that he was completely alive to the evidence submitted on the motion
and to the relevant issues and the law as argued by counsel before him.
[38]

While concluding that the Crowns disclosure was tardy and

piecemeal, the judge found that, for the most part, it had been provided to

Page: 11

defence counsel prior to the preliminary inquiry and certainly prior to the
commencement of trial. Ultimately, the judge concluded that the accused
had not shown that his right to make full answer and defence had been
detrimentally impacted and thus denied the accuseds request for relief on
the ground that his s. 7 Charter rights had been infringed.
[39]

As regards the accuseds assertion that the Crowns late and

imperfect disclosure had resulted in a delay of the proceedings such that the
accused was deprived of his right to be tried within a reasonable time, the
judge thoroughly considered the timelines of the proceedings from March 3,
2010, the date of the charge, until June 10, 2013, the date the motion was
argued (contemplating that the trial would commence on September 9, 2013,
which it did).
[40]

The judge concluded that there were four months of excessive

delay caused principally by the Crowns dilatory disclosure. He attributed

three months of that delay to the Crown and one month to the accused. As a
result of this excessive delay, he went on to consider whether the delay
violated the accuseds s. 11(b) Charter right to be tried within a reasonable
time.
[41]

In so doing, the judge addressed the need to balance the accuseds

interests in granting a stay against societys interests that criminal

prosecutions, particularly prosecutions involving serious charges, ought to
be decided on their merits after trial. Ultimately, he concluded that in all of
the circumstances, although there have been delays, especially in regards to
late disclosure for which the Crown should not be proud, in the context of

Page: 12

these charges, they do not warrant a stay of proceedings (at para. 83). He
therefore dismissed the accuseds claim under s. 11(b) of the Charter.
The standard of appellate review is one of significant deference

[42]

with regard to the judges decisions respecting alleged breaches of the

accuseds ss. 7 and 11(b) Charter rights and the alleged abuse of process, as
well as his refusal to grant a judicial stay of proceedings under s. 24(1) of
the Charter.
I am not persuaded that the judge committed any error of law, or

[43]

that his finding was unreasonable. As well, his decision, in my opinion, is

not wrong, and certainly is not so clearly wrong as to amount to an injustice.
There is no basis for appellate intervention in respect of those decisions.
As part of issue number one, the accused argued, as an alternative

[44]

remedy, that the judge should refuse to admit the preliminary inquiry
evidence of Glow. The judge did not do so, but instead deferred that request
to trial. As will be seen in issue number two, the judge did deal at trial with
the admissibility of Glows preliminary inquiry evidence. There was no
error in deferring that matter to the trial.
2.

Did the judge err in admitting the preliminary inquiry testimony of

Glow?
[45]

The accused says that the judge erroneously ruled that the Glow

evidence was admissible under s. 715(1) of the Code.

[46]

He argues that he did not have full opportunity to cross-examine

Glow because he did not have important disclosure upon which to challenge

Page: 13

Glow, disclosure that was in the possession of the Crown before the
preliminary inquiry.
[47]

The accused submits that s. 715(1) is concerned with the

opportunity to cross-examine, not just that there was cross-examination. He

says that opportunity to cross-examine is denied or restricted when the
intention to pursue certain questions is frustrated.
[48]

The accused argues that the language of s. 715(1) confers on the

judge a discretion to exclude previous testimony in circumstances that would

operate unfairly to the accused. Such discretion may be exercised both
where there is unfairness in the way in which the evidence was obtained, and
where its admission would affect the fairness of the trial itself.
[49]

The accused says that the dilatory disclosure by the Crown resulted

in the accused being unaware of several relevant facts resulting in a denial of

his right to make full answer and defence. He argues that this should have
resulted in the judge ruling that Glows evidence was inadmissible under
s. 715(1).
[50]

In addition, the accused asserts that the judge erred in admitting

Glows evidence under the principled exception to the hearsay rule. In so

arguing, he acknowledges that the reliability concern necessary for
admissibility under the principled exception to the hearsay rule is that of
threshold reliability, not ultimate reliability.

He submits that Glows

evidence did not meet the requirement of threshold reliability and says that
much of his testimony was inconsistent with the evidence of other witnesses.

Page: 14

[51]

He asserts that these inconsistencies went to the heart of threshold

reliability: Glow had a motive to lie; his testimony was given in exchange
for a stay of his charges and those of his girlfriend, Delores Saari (Saari);
and that certain information was not disclosed to the accused until moments
before the testimony of Saari at trial. These factors, says the accused, go to
threshold reliability, not ultimate reliability.
[52]

The accused also argues that, despite the fact Glows evidence was

taken under oath, it was not demonstrated to be truthful. It was relatively

untested due to the dilatory and incomplete disclosure by the Crown and,
thus, it should not have been ruled admissible at the trial.
[53]

The Crown argues that incomplete disclosure to the accused at the

time of the preliminary inquiry does not result in a finding of a lack of full
opportunity to cross-examine a witness.
[54]

It says the law is well settled that an accuseds ignorance of

potentially useful information does not deprive him of full opportunity to

cross-examine the witness within the meaning of s. 715(1).
[55]

The Crown argues that where counsel is actually prevented from

cross-examination (for example, because the judge terminated the

examination for some reason) an accused can argue that the requirement was
not satisfied, but incomplete information does not give rise to such
an argument.
[56]

Moreover, the Crown submits that the decision whether or not to

admit evidence under s. 715(1) remains a discretionary decision on the part

Page: 15

of the judge.

It asserts that the judge dealt fully with the accuseds

argument. He noted that the purported differences in the information to be

used on cross-examination as argued by the accused were either immaterial
or not even articulated in the police information. Further, he noted that most
or all of the information contained in the police notes, which the accused
complains were not received, was located in other material that had been
disclosed. In sum, says the Crown, there was no basis to conclude that this
was one of the relatively rare circumstances in which evidence meeting
the requirements of s. 715(1) should be excluded.
[57]

Moreover, the Crown argues that if the evidence should not have

been admitted under s. 715(1) of the Code, it certainly should have been
admitted under the principled exception to the hearsay rule.
[58]

The Crown submits that there were no significant inconsistencies

between the testimony of Glow and the evidence of other witnesses and that
the judge, in fact, listed a number of areas where Glows testimony was
consistent with that provided by other witnesses.
[59]

While

the

judge

acknowledged

that

there

were

some

inconsistencies, that, says the Crown, is not determinative of the test for
threshold reliability.
[60]

The Crown disputes the accuseds allegation that Glow had a

motive to lie because his testimony was being given in exchange for the
staying of his charges and those of Saari. As regards the latter, the Crown
asserts that there was no evidence whatsoever that Saaris charges had
anything to do with Glows decision to cooperate with the police. In fact,

Page: 16

the evidence, including undisputed testimony from the prosecutor of Saaris

charges, was entirely to the contrary.
[61]

Moreover, the extent to which Glows motive to co-operate with

the authorities may have coloured his evidence was thoroughly canvassed in
his cross-examination at the preliminary inquiry and was, therefore,
available for the jurys review at trial. The Crown asserts that Glows
motive to co-operate with the authorities did not preclude the admission of
his preliminary inquiry testimony, particularly given the extensive additional
circumstantial guarantees of trustworthiness attached to the preliminary
inquiry proceeding.
Analysis
[62]

In the course of the trial, the Crown moved for admission of the

preliminary evidence of Glow under s. 715(1) of the Code and for leave to
play to the jury an audiotape of Glows preliminary inquiry testimony.
[63]

Section 715(1) of the Code provides:

Evidence at preliminary inquiry may be read at trial in
certain cases
715. (1) Where, at the trial of an accused, a person whose
evidence was given at a previous trial on the same charge, or
whose evidence was taken in the investigation of the charge
against the accused or on the preliminary inquiry into the charge,
refuses to be sworn or to give evidence, or if facts are proved on
oath from which it can be inferred reasonably that the person
(a) is dead,
(b) has since become and is insane,

Page: 17

(c) is so ill that he is unable to travel or testify, or

(d) is absent from Canada,
and where it is proved that the evidence was taken in the
presence of the accused, it may be admitted as evidence in the
proceedings without further proof, unless the accused proves that
the accused did not have full opportunity to cross-examine the
witness.
[64]

As well, the Crown sought admission of the evidence under the

principled exception to the hearsay evidence rule.

[65]

The judge granted the Crowns motion and admitted as evidence at

the trial both the preliminary inquiry testimony of Glow and the audiotape of
his testimony.
[66]

It is clear from the judges reasons that he considered the accuseds

arguments that, because he had not received full disclosure from the Crown
at the time Glow testified at the preliminary inquiry, he did not have full
opportunity to cross-examine Glow, thus, the admission of his evidence at
trial would be unfair to him.
[67]

The judge concluded that, as a matter of law, the lack of complete

disclosure complained of by the accused did not result, in the circumstances

of this case, in the accused not having full opportunity to crossexamine Glow.
[68]

The judge referred to the case of R. v. Lewis (I.A.), 2009 ONCA

874, 256 O.A.C. 268, where the court wrote (at para. 68):
The better approach, in my view, is to limit consideration of the

Page: 18

full opportunity requirement to cases where, for example, a

witness refuses to answer questions in cross-examination, a
witness dies or disappears in the midst of cross-examination, or
where the presiding judge curtails cross-examination by
imposing improper limitations or restrictions. It should not apply
where the failure to cross-examination stems from an accused
persons ignorance of potentially useful information, no matter
the cause or reason. Those situations, in my view, are best dealt
with under trial fairness, where, as I have indicated, the reason
for the missing information can properly be taken into account as
a factor.
[69]

The determination of trial fairness falls to the discretion of the

judge, and that is so even if all of the criteria set forth in s. 715(1) have been
met. In R. v. Potvin, [1989] 1 S.C.R. 525, Wilson J. cautioned that the
circumstance which would give rise to the exercise of discretion to exclude
will be relatively rare and that the discretion to prevent unfairness is not a
blanket authority to undermine the object of s. 643(1) [now s. 715(1)] by
excluding evidence of previous testimony as a matter of course (at p. 548).
[70]

It was with that in mind that the judge then embarked upon a

consideration of the specific complaints advanced by the accused concerning

his alleged inability to cross-examine. After so doing, he concluded that the
deficient disclosure of information was either not material in terms of the
issues in the case, or was available in other material which had been
disclosed as to provide defence counsel with sufficient information to crossexamine on the particular points of which he complained.
[71]

I have reviewed the judges reasons for admission of the evidence

and the underlying evidence. I see no error in his conclusions that the
complaints did not warrant a finding of trial unfairness.

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Moreover, the decision whether to admit the evidence in question

[72]

was one involving the exercise of discretion by the judge. As such, the
standard for appellate intervention is very high. I see no reversible error on
fact or law in the decision of the judge. In my view, his decision is correct
and certainly not so clearly wrong as to amount to an injustice. There is no
basis for appellate intervention.
As a result, I need not deal with the argument pertaining to

[73]

whether or not the evidence is admissible under the principled exception to

the hearsay rule. I will say, however, that had I been required to address this
issue, I would have concluded that the judge committed no error in his
decision in that regard.
3.

Did the judge err in instructing the jurors that they could not draw an

adverse inference from the Crowns failure to call certain witnesses and did
that instruction reverse the burden of proof?
[74]

The accused argues that the judge instructed the jury that they

could draw no inference from the Crowns decision not to call certain
witnesses. This argument is advanced in respect of a number of witnesses,
particularly, Black John, Steve, Sean Sorenson (Sorenson), and Kevin Huber
(Huber).
[75]

The accused says that the first three witnesses could have given

evidence pertaining to the sale by Glow of the television set stolen from
Baptistes apartment at the time of the murders, which evidence may or may
not have supported Glows evidence concerning the sale.

Page: 20

[76]

As for the witness Huber, who was with Asham at the time Asham

says he received a phone call from the accused, the accused argues that he
may or may not have supported Ashams evidence that the accused told him
that he had just murked, i.e., murdered, two guys.
[77]

Further, the accused says that the judge did not instruct the jury

that they could not draw an adverse inference against the accused from the
accuseds decision not to call certain witnesses, nor did he remind the jury
that the accused was not required to call evidence to prove his innocence.
[78]

The accused acknowledges that the Crown has broad discretionary

powers in presenting its case, that this discretion lies at the heart of the
adversarial process and that it is rare for a court to interfere. But, argues the
accused, when the Crown elects not to call a witness, particularly one the
accused needs the jury to hear in order to make full answer and defence, and
who the jury was told would be called, the accused is put in an untenable
position, because, if he is required to call a witness, he loses his ability to
cross-examine and his right to argue last.
[79]

As a result, submits the accused, while the courts ability to

interfere with the Crowns discretion not to call an important witness is

restricted, the court may tell the jury that they can draw an adverse inference
and that, in the circumstances of this case, the judge erred in not doing so.
[80]

Further, the accused asserts that, in directing the jury to ignore

defence counsels submission that an adverse inference could be drawn from

the fact that the Crown did not call certain witnesses, the judge created an
inference that the accused should have done so and, thus, erroneously shifted

Page: 21

the onus from the Crown having to prove guilt to the accused having to
prove innocence.
[81]

The Crown argues that, at the pre-charge conference, defence

counsel explicitly stopped short of requesting an instruction that an adverse

inference could be drawn from the Crowns failure to call certain witnesses
and acknowledged that the law did not support an instruction that such an
inference could be drawn. However, in his closing submission, defence
counsel encouraged the jury to draw such an inference.
[82]

The Crown says that, at a post-submissions meeting thereafter and

before the judges charge, the judge advised defence counsel that a
correcting instruction would be necessary and defence counsel replied, I
anticipated that. Defence counsel, submits the Crown, now argues that, by
giving this correcting instruction, the judge reversed the burden of proof and
required the accused to establish his innocence.
[83]

The Crown asserts that, as a general rule, the failure of a party to

produce a witness does not support the drawing of an adverse inference.

Absent something more, for example, a prior announcement by the party in
opening statements that the witness would be called or reference in the
course of the case as to what such a witness would be expected to say when
called, the drawing of an adverse inference is not justified.
[84]

The Crown argues that the judge was correct in his observing that,

where neither side chooses to call a witness, the jury is not to speculate as to
what that witness might have said had he or she been called, but rather must
decide the case on the basis of the evidence that has been presented. The

Page: 22

Crown says there is no reversal of the burden of proof in such a situation.

[85]

The Crown asserts that modern disclosure rules put both Crown

and accused in essentially the same position to assess the relative merits of
presenting certain witnesses. It says the law is well settled. The fact that the
calling of a witness by the accused might restrict his ability to cross-examine
or remove his ability to argue last is of no moment.
[86]

The Crown says the accused could have called whatever evidence

he thought appropriate in this case. However, it was not open to the accused
to decline to do so and then invite the jury to speculate that, had a witness
been called, his/her evidence would have been beneficial to the accused.
[87]

There was no error on the part of the judge here.

Analysis
[88]

As a general rule, the failure of a party to call a witness at trial

does not support an adverse inference and, as such, it is improper for counsel
to invite the jury to do so. Nor, generally, should the judge do so.
[89]

This was made clear in R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R.

751, where, after referring to other cases which caution against so

commenting to a jury, Binnie J. wrote (at para. 39):
It is clear from these authorities that it will rarely be
appropriate for the trial judge to comment on the failure of the
Crown to call a particular witness, and even more rare to do so
with respect to the defence. As Brooke J.A. went on to say in
Zehr [(1980), 54 C.C.C. (2d) 65 (Ont. Sup. Ct.)], at pp. 68-69:
There are many reasons why counsel may choose not to call a

Page: 23

witness, and our Courts will rarely question the decision of

counsel, for the system proceeds on the basis that counsel
conducts the case. Often a witness is not called, and if the
reason was known it would not justify an instruction that an
adverse inference might be drawn from the witness not being
called. Of importance under our system, counsel is not called
upon, or indeed permitted, to explain his conduct of a case [to
the jury].
.

There are exceptions to the general rule, but none apply in this case.
[90]

Moreover, in this case, defence counsel raised the adverse

inference issue at the pre-charge conference, but acknowledged that the

jurisprudence did not support the drawing of an adverse inference.
[91]

Nevertheless, in his closing submission, he encouraged the jury to

do so.
[92]

Following counsels submissions to the jury, a post-submissions

meeting was held and the judge advised that a correcting instruction would
be necessary and given in his jury charge. He then did so, as follows:
I do, however, wish to make some comments about some of the
matters which were made during the course of yesterdays
submissions.
During his submission, [defence counsel] made mention of the
fact that Black John or Steve or [Sorenson], the individuals,
according to Mr. Glow and/or Ms. Saari, who had involvement in
the sale of the TV, were not called as witnesses, perhaps inviting
you to infer that they would not have supported the evidence of
Mr. Glow and Ms. Saari about a TV in their home. You cannot
make such an inference. Who knows what these people would
have said? They may have supported Mr. Glow or they may

Page: 24

have not supported Mr. Glow. To infer anything about what they
may have said would be speculation. Remember that I told you
that although you may wish the evidence was more complete in
certain areas, you will have to reach verdicts on the evidence as it
stands. You should not speculate about what others may have
said if they had been called as witnesses.
The same applies to Mr. Huber. [Defence counsel] noted that he
was not called. Again, you can make no inference unfavourable
to the Crown based upon Mr. Hubers absence. By so doing, you
are speculating that Mr. Huber would not support Mr. Asham and
you cannot speculate.
[Defence counsel] also made mention that there might have been
a number of people that evening who saw [the accused] and no
one came to give evidence to say that [the accused] was wearing
a jacket that was found in the dumpster. The absence of such
people again does not allow you to infer that [the accused] was or
was not wearing that jacket. You must draw any inference from
the evidence. It is up to you whether you conclude that the DNA
evidence regarding that jacket, coupled with other evidence that
you heard, is enough to convince you that [the accused] was
wearing that jacket on that occasion or not. But you cannot use
the fact that no evidence was called from people who actually
saw [the accused] wearing that particular jacket to come to your
conclusion on that issue.
A similar point can be made about [defence counsels] reference
to the lack of wiretaps and blood spatter evidence. You cannot
draw any inferences against the Crown from the lack of such
evidence because you again would be speculating what that
evidence would be. In addition, you cannot presume that such
evidence or indeed other investigative techniques would have
been reliable or even appropriate in the first place. No evidence
was led as to what proper investigation practice is and you should
not assume that you know what it is and what it is not and what
such a technique, even if its available, would have yielded. You
must make your decision on the evidence given to you in this
case.

Page: 25

Finally, one further matter. [defence counsel] mentioned the

possibility that Ms. Merrick might have come back to her
apartment at some point after the murders and obtained
information at the crime scene which she could have imparted to
others. You cannot draw that inference. Unlike the absence of
witnesses about which I have just talked, Ms. Merrick was a
witness. The suggestion that she might have come back after the
fact and learned about the details of the crime is not something
you can consider since she was not given the opportunity to
comment upon it while she was on the witness stand. Not only
would an answer to that question be speculation, she was here
and no one felt it important enough to ask her about it. That
suggestion should not be considered by you.
Remember, you must decide only on the evidence before you.
You can draw inferences but only from the evidence before you.
.
[93]

Further, there is no basis to suggest that in so commenting the

judge created any inference that the accused should have called the
witnesses in question. Nor did the judge shift the onus of proof from the
Crown to the accused.

Almost immediately after giving the correcting

instruction, the judge charged the jury as follows:

Let me say a few words about the burden of proof. [The
accused] does not have to present evidence or prove anything in
this case, and in particular he does not have to prove that he is
innocent of the crimes charged.
From start to finish, it is Crown counsel who must prove [the
accused] guilty beyond a reasonable doubt. It is Crown counsel
who must prove [the accuseds] guilt beyond a reasonable doubt,
not [the accused] who must prove his innocence. You must find
[the accused] not guilty of an offence unless Crown counsel
satisfies you beyond a reasonable doubt that he is guilty of it.

Page: 26

[94]

The judge committed no error in respect of his instruction

regarding adverse inferences or burden of proof.

4.

Did the judge err by allowing the introduction of evidence that the

accused had been in custody, had the number 187 tattooed on his arm
and was involved in drug trafficking?
[95]

The accused argues that the judge erred in allowing the admission

of certain evidence from the witness Asham before the jury.

[96]

That evidence was that Asham had met the accused while they

were both in custody at the Headingley Correctional Centre, had knowledge

of the accuseds tattoo of the number 187 and knew that the tattoo
represented a murder-for-hire gang of which the accused was the leader.
[97]

The accused says the Crown wanted this information before the

jury to establish that the murders were planned and were therefore first
degree murder, and to support its application to have Glows evidence
admitted at trial.
[98]

The accused submits that while the judge gave the jury a limiting

instruction as to the use the jury could make of this evidence, the limiting
instruction was insufficient. It was given only once at the conclusion of the
Crowns direct examination of Asham and was not repeated during the
judges charge to the jury.
[99]

In addition, the accused argues that no limiting instruction, or any

instruction at all, was given by the trial judge when other impermissible
character evidence was given before the jury. Specifically, he says that

Page: 27

when Glow testified that the accused was a member of a murder-for-hire

gang and involved in the drug trade, and when Saari testified that the
accused was involved in the drug trade, there was no instruction by the judge
to the jury as to how that evidence could be used.
[100]

The accused submits that the jury was not aware that they could

not use this bad character evidence from Glow and Saari about the accused
to determine whether the accused was more likely to have committed the
crimes charged. As well, that the lack of instruction as to how the evidence
could be used was even more problematic in this case because the jury was
warned to be careful of the testimony of the unsavoury witnesses Glow and
Asham.
[101]

Thus, asserts the accused, the judge erred in allowing the

admission of this impermissible character evidence and erred in his

instruction or lack of instruction as to how the jury could use that evidence
in determining the guilt of the accused.
[102]

The Crown argues that the evidence complained of was relevant in

a number of ways. Firstly, it explained why the accused would be willing to

contact Asham and Glow for assistance after committing the murders;
namely, because the accused knew Asham and Glow as criminals who were
engaged in criminal activity. Thus, arguably he would have felt comfortable
seeking their assistance. Secondly, the fact that Asham was aware of the
accuseds tattoo of the number 187 corroborated Glows evidence and was,
thus, important for that purpose.

Page: 28

[103]

Thirdly, Asham testified that he believed the tattoo represented the

accuseds gang or crew and Glow testified that the accused told him that he
was starting a murder-for-hire operation named either MS13 or 187.
[104]

Thus, this evidence was highly relevant to the issue of planning

and deliberation with Glow testifying that the accused said the murders in
question were his first job.
[105]

The Crown submits that this evidence is not prejudicial in the legal

sense, that is, it did not encourage the jury to draw an inappropriate
inference. Rather, says the Crown, if believed, it would have led to the
entirely legitimate conclusion that the accused had committed the murders as
part of the job to which he referred, and, thus, that they were planned and
deliberate.

Accordingly, the evidence was not impermissible character

evidence.
[106]

Further, the Crown asserts that the judge carefully instructed the

jury as to the use of the evidence. In fact, the judge specifically instructed
the jury that it would be wrong to use that evidence to conclude that the
accused would be more likely to have committed the offences with which he
was charged.
[107]

Not only was that instruction given by the judge in the course of

the trial evidence, but, says the Crown, contrary to the accuseds assertion,
the warning was repeated again in the judges final charge to the jury.
[108]

The Crown asserts, therefore, that there is no basis for belief that

the jury made inappropriate use of the evidence in question.

Page: 29

Analysis
[109]

The evidence of which the accused complains, and describes as

bad-character evidence, was clearly relevant.

[110]

In deciding whether such evidence is admissible, the judge must

balance its probative value against its prejudicial effect. The evidence was
not prejudicial in the legal sense, but its probative value was significant. If
believed by the jury it could lend credence to the evidence of Asham and
Glow. It could explain why the accused was prepared to contact each of
them following the murders, both because the accused knew each of them
and knew that they themselves were involved in criminal activity.
Moreover, it could provide some common-sense explanation as to why the
accused would have been prepared to make the disclosures to them, which
they say he did, concerning his involvement in the murders. The evidence
also could lead the jury to the conclusion that the murders were committed
as part of a job and were therefore planned and deliberate, thus supporting a
conclusion of guilt for first degree murder.
[111]

Having admitted the evidence, the judge appropriately cautioned

the jury as to how the jury was to use the bad-character evidence and, in
particular, as to how it could not use that evidence. He gave a caution in that
regard in the course of the trial and in his charge to the jury at the conclusion
of the trial.
[112]

In my opinion, the judge made no error in admitting the evidence

and his caution to the jury as to how the evidence could be used was clear
and correct. There is no basis here for appellate intervention in respect of

Page: 30

issue number four.

5.

Did the Crown act contrary to law by not producing certain

witnesses at the trial?

[113]

The accused argues that, in order for him to make full answer and

defence, it was necessary that he knew the case that he was required to
answer. He says that he repeatedly requested witness contact information
from the Crown, but that those requests were denied.
[114]

The accused submits that the Crown claimed it had security

concerns respecting the witnesses, but never explained what those concerns
were, nor answered how those unexplained security concerns overrode the
accuseds presumption of innocence.
[115]

The accused asserts that, by reason of the non-production by the

Crown of certain witnesses at trial, he was unable to challenge those

witnesses on their evidence.
[116]

The accused refers particularly to the witness Sorenson, who was

on the witness list read to the jury at the outset of the trial. While the Crown
subpoenaed Sorenson, it did so only a few days before the trial began and
never brought Sorenson to the trial.
[117]

The accused says he was made aware of Sorensons location a

week after the trial had started and that, not only did the Crown refuse to
bring Sorenson to court, it had previously refused to tell the accused where
Sorenson was located.

Page: 31

[118]

Thus, argues the accused, the judge erred in finding that the

accused was responsible for bringing Sorenson to court.

[119]

The Crown argues that, while the accused says his rights were

violated when the Crown failed to call certain witnesses or bring them to
court, the accused sought no relief at trial concerning either complaint. No
motions were made, no evidence was called, no rulings were issued and,
accordingly, there is little for this court to review on appeal.
[120]

The Crown says that the witnesses to whom the accused refers

were tangential at best, that when they were located and/or produced,
defence counsel called none of them and, in some cases, made little effort
even to speak to them. The Crown located Sorenson in a British Columbia
penitentiary on September 13, 2013.

It advised the accuseds counsel

immediately and, six days later, defence counsel had made no attempt to
contact Sorenson, let alone explore ways to bring his evidence to trial.
[121]

The Crown says that many of the witnesses to whom the accused

refers were produced by Crown subpoena pursuant to an arrangement

between Crown and accuseds counsel that had been worked out prior to
trial. Thus, argues the Crown, there is no merit to this ground of appeal.
Analysis
[122]

The law is clear that there is no property in a witness. Either the

Crown or the defence can have access to the witness if the witness is
prepared to give access. Likewise, both are entitled to subpoena the witness.
[123]

There is no obligation upon the Crown to call witnesses in order to

Page: 32

accommodate the accused, nor to bring witnesses to court for the accused.
[124]

It appears that, in this case, the Crown agreed simply that it would

advise defence counsel of any witness it brought to court pursuant to a

subpoena and, if not called as a witness, that it would not send the witness
away without letting the defence know of the witnesss attendance so as to
assist defence counsel in being able to speak to and, if it chose, call such
witness at trial. In fact, defence counsel did speak to and/or interview some
individuals by reason of this arrangement, though he did not call any of them
as a witness.
[125]

The accuseds principal complaint in respect of issue five relates to

the witness Sorenson. The Crown attempted to serve a subpoena upon

Sorenson. Sheriffs officers had been unable to do so, and only at about the
time the trial commenced did they ascertain that he was in custody in British
Columbia. Accordingly, a subpoena could not be served. Rather, a court
order would have to have been obtained and an interprovincial subpoena
issued. The Crown chose not to pursue the matter further, but did advise
defence counsel of that fact and of Sorensons whereabouts.
[126]

This information was conveyed to defence counsel in the early

days of the trial. The trial was scheduled to continue for five weeks. It
would appear that defence counsel did not contact Sorenson for the purpose
of attempting to interview him, nor did he take any steps to attempt to bring
him to Winnipeg to testify at trial. As well, no motions were made by
defence counsel concerning the possible attendance of Sorenson as a
witness, although much allocated trial time remained.

Page: 33

[127]

In any event, it appears that Sorenson was, at best, a tangential

witness. The purpose of his attendance as a witness was to obtain evidence

of his involvement in the purchase from Glow of the television set which the
accused had stolen at the time of the murders and which he had left with
Glow to sell for him, the two of them to divide the proceeds of sale.
[128]

Glow testified that he sold the television between 8:00 and 9:00

a.m. on the morning immediately following the murders, the murders having
occurred about four hours earlier.

Glows evidence at the preliminary

inquiry was that he contacted Black John, a person whom he knew bought
things like this, and that Black John brought a gentleman with him who
looked at the television and then bought it.
[129]

Defence counsel cross-examined Glow at the preliminary inquiry

in connection with the sale of the stolen television. Although he did not
have all of the police notes concerning this at the time of the crossexamination, he did have the note of Constable Reid from the January 6,
2011 interview of Sorenson. In that note was reference to the belief that the
stolen television from the double homicide at 729 Maryland Street on
January 31, 2009, was in Sorensons possession at some point following the
murder (at approximately 9:00 a.m. on January 31, 2009). There was, as
well, reference to the fact that another officer had stated that Glow sold the
television the next morning to Sorenson for $600.
[130]

Thus, by reason of Cst. Reids note, defence counsel was aware at

the time he cross-examined Glow at the preliminary inquiry of the possible

involvement of Sorenson in the sale of the television set, but chose not to

Page: 34

cross-examine Glow with the view of attacking his evidence on that point.
[131]

Glows girlfriend, Saari, did not testify at the preliminary inquiry,

but did testify at trial and was considered a Vetrovec witness for purposes of
her trial evidence. She testified that the television was sold approximately
two days after it was received by Glow to a couple of people who attended
their apartment to make the purchase. Clearly, her evidence was in conflict
with that of Glow as to when the sale occurred.
[132]

Defence counsel argued that he hoped to obtain from Sorenson

evidence consistent with that of Saari and, thus, inconsistent with Glow for
the purpose of using that inconsistent evidence to attack Glows credibility.
Defence counsel acknowledged, however, that, while he wanted Sorenson
produced as a witness, he did not know what Sorenson would actually say
on the issue if called as a witness. It may or may not have supported Glows
evidence.
[133]

Of importance is the fact that, although defence counsel was aware

by reason of Cst. Reids note of the possible involvement of Sorenson at the

time he cross-examined Glow at the preliminary inquiry, he chose not to
cross-examine Glow with the view of attacking his evidence as to the sale of
the television.
[134]

Accordingly, notwithstanding his failure to cross-examine Glow at

the preliminary inquiry despite having Cst. Reids note, in the final result,
defence counsel was able to attack Glows credibility at trial as regards the
sale of the television set based upon the contradictory trial evidence of Saari.

Page: 35

[135]

Lastly, contrary to the accuseds assertion, the jury was not told by

the Crown that Sorenson would be called as a witness at trial.

[136]

In my opinion, there was no obligation upon the Crown to call

Sorenson as a witness or to make him available to the accused. Furthermore,

his evidence on a tangential issue was unknown and, from the accuseds
perspective, might or might not have provided contradictory evidence to that
of Glow on that point beyond the already contradictory trial evidence of
Saari.
[137]

There was no motion made and no order given relative to the

production of the potential witness Sorenson. This court reviews for error.
Here, there is, therefore, nothing to review or with which to interfere, nor is
there any merit to the point argued.
Conclusion
[138]

Having considered the issues raised on appeal by the accused, I am

not persuaded of any error by the judge. There is no basis for appellate
intervention and thus, I would dismiss the appeal.

MacInnes J.A.
I agree:

Beard J.A.

I agree:

Monnin J.A.

Page: 36