Her Majesty the Queen v. Hunter
[Indexed as: R. v. Hunter]
54 O.R. (3d) 695
 O.J. No. 2388
Docket No. C30902
Court of Appeal for Ontario
Rosenberg, Moldaver and Goudge JJ.A.
June 21, 2001
Charter of Rights and Freedoms–Fundamental justice–Right to remain silent–Trial judge invited jury to use fact that accused did not ask why he was being arrested as evidence of consciousness of guilt–Trial judge impermissibly undermined accused’s right to remain silent–Conviction quashed.
Charter of Rights and Freedoms–Remedies–Stay of proceedings –Accused convicted of serious offences following fourth trial–Accused’s appeal allowed–Putting accused in jeopardy again would violate his rights under s. 7 of Charter and would constitute abuse of process–Stay of proceedings granted –Canadian Charter of Rights and Freedoms, s. 7.
Criminal law–Evidence–Admissions–Accused allegedly pulled gun and tried to shoot police officer–Passer-by claimed to have heard accused tell his lawyer “I had a gun, but I didn’t point it” on day of preliminary inquiry–Trial judge erred in admitting utterance as admission–Context of utterance unknown –Probative value of statement tenuous but highly prejudicial–In absence of context properly instructed jury could not conclude that utterance constituted admission –Conviction quashed.
The accused was charged with attempted murder, use of a firearm while committing an indictable offence, aggravated assault and possession of a prohibited weapon after allegedly pulling out a gun and attempting to shoot a police officer. His first three trials ended in mistrials. At his fourth trial, the trial judge permitted the Crown to call evidence that a passer- by heard the accused tell his lawyer, “I had a gun, but I didn’t point it” on the day of his preliminary inquiry. The context of the utterance was unknown. The trial judge found that the statement was “relevant and probative to a fact in issue. It is really an admission.” In his charge to the jury, the trial judge commented on the accused’s failure to ask why he was being arrested, stating, “. . . why not ask, ?Why am I being arrested?’ if you had done nothing?” The accused was acquitted of attempted murder and convicted of the other three charges. He appealed.
Held, the appeal should be allowed.
There was no context for the accused’s utterance to his lawyer. Without the surrounding words, it would be impossible for a properly instructed jury to conclude that the utterance was an admission, or perhaps even what it meant. Since its meaning was highly speculative, its probative value was correspondingly tenuous. However, its prejudicial effect was substantial. The trial judge erred in admitting the utterance.
The fact that the accused did not ask the reason for his arrest could not be used as positive evidence of guilt and certainly not on the basis that if he was innocent he would have asked why he was being arrested. Following his arrest, the accused was not obliged to make any statement. The trial judge’s comments expressly invited the jury to use the accused’s exercise of his right to silence as consciousness of guilt. The trial judge impermissibly undermined the accused’s right to remain silent.
Putting the accused in jeopardy with respect to serious charges for a fifth time would constitute a breach of s. 7 of the Canadian Charter of Rights and Freedoms and an abuse of process. The Crown’s case was not overwhelming, and the accused had spent almost seven months in pre-trial custody and had served over three-and-one-half years of his sentence. The accused was entitled to a judicial stay of proceedings under s. 24(1) of the Charter.
R. v. Ferris,  3 S.C.R. 756, 174 N.R. 158, 34 C.R. (4th) 26, affg (1993), 27 C.R. (4th) 141 (Alta. C.A.); R. v. Jack,  2 S.C.R. 334, 118 Man. R. (2d) 168, 214 N.R. 294, 149 W.A.C. 168, 117 C.C.C. (3d) 43, apld
Other cases referred to
R. v. Melaragni (1992), 75 C.C.C. (3d) 546 (Ont. Gen. Div.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 24(1)
APPEAL from a conviction for aggravated assault, using a firearm in the commission of an indictable offence and possession of a prohibited weapon.
David M. Tanovich, for appellant. Lisa Joyal, for respondent.
The judgment of the court was delivered by
 GOUDGE J.A.:–In the early evening of January 26, 1995, three plainclothes police officers investigated a disturbance outside a restaurant in the Bloor and Lansdowne area of Toronto. A chase ensued in which the appellant allegedly pulled out a gun and attempted to shoot at one of the officers. However, the gun did not fire, and the appellant was apprehended. He was charged with attempted murder, use of a firearm while committing an indictable offence, aggravated assault in that he endangered the life of the officer and possession of a prohibited weapon.
 On October 14, 1997, the appellant’s fourth trial on these charges commenced before Hamilton J. and a jury. On October 22, 1997, he was acquitted of attempted murder, but convicted of the other three charges. On October 30, 1997, he was sentenced to eight years’ imprisonment.
 Mr. Hunter appeals both his conviction and his sentence. In attacking his conviction, the appellant raises a number of grounds. For the reasons that follow, I have concluded that two of these have merit: first, that the trial judge erred in admitting an utterance (“I had a gun, but I didn’t point it”) purportedly made by the appellant to his lawyer and overheard by a passerby; second, that the trial judge made certain comments in his charge to the jury that impermissibly undermined the appellant’s right to remain silent. The appellant’s conviction must therefore be set aside. In light of the relevant considerations in this case, I would enter a stay of proceedings rather than direct a new trial. In the circumstances, I do not think it necessary to address the other grounds of appeal from conviction or the appeal from sentence.
 The case for the Crown centred on the evidence of the three police officers, Constables Demkiw, Robinson and Brosnan. They testified that on January 26, 1995, they were working together in plainclothes. At approximately 7:35 p.m., they happened to be driving by Luckey’s Restaurant when a disturbance broke out just outside. On exiting their vehicle, Constable Brosnan saw the appellant with a gun tucked into his jeans and advised Constable Demkiw of this. When Demkiw approached the appellant and ordered him not to move, the appellant fled. Constable Demkiw pulled out his own gun and gave chase along with Constable Robinson. Constable Brosnan returned to the car in order to pursue the appellant, but made no attempt to call for backup because he said he did not know where the police radio was located in the unmarked vehicle.
 The appellant ran into a narrow passageway no more than six feet wide. Constable Demkiw took out his flashlight and shone it down the passageway. He saw the appellant crouching on his knees and pointing a gun at him. Constable Demkiw heard a clicking noise, but the gun did not fire and the appellant turned to run. Constable Demkiw told Constable Robinson who had just caught up with him that the appellant had a gun but did not say that he had attempted to fire it. Without drawing his own gun, Robinson ran past Demkiw and grabbed the appellant in a bear hug. The two officers dislodged the gun from the appellant and arrested him. Constable Robinson made no mention of seeing a gun in his notes and no fingerprints were found on the gun. The evidence of the officers was that on arrest the appellant was advised of his rights but simply said “I’m sorry. I’m sorry.”
 The Crown sought to call Lorenzo DiCecco whose evidence was that on the day of the appellant’s preliminary hearing he was walking past the appellant and his lawyer, Mr. Rusonik, who were standing together in an open area of the Old City Hall. Mr. DiCecco said that he overheard the appellant say “I had a gun, but I didn’t point it.” He acknowledged that he just caught that part of the conversation. He agreed that there might have been conversation between the appellant and Mr. Rusonik both before and after the overheard utterance. He could not give the court the context of the utterance. The Crown took the position that this evidence was very critical to its case, given the defence position of police brutality and the possible planting of evidence on the appellant.
 After a voir dire the trial judge held this evidence to be admissible. He found that the words before and after the overheard utterance were not before the court. He reiterated this in his charge, telling the jury that the overheard utterance was something taken out of context. However, he said that he could not think of any words that might have prefaced the overheard utterance that would give that utterance a meaning other than the meaning it appears to have standing on its own. Hence he found that a jury could determine the meaning of the overheard words. He concluded his ruling as follows:
I find the words are capable of giving a meaning if the jury so choose to give it. It is for them to decide if it was made by the accused and what value is to be given to it. I find the statement as said is relevant and probative to a fact in issue. It is really an admission. That is still up to a jury.
I am finding it is voluntary and admissible.
 The trial judge then went on to find that the statement was not protected by solicitor-client privilege.
 The appellant gave evidence in his own defence. He said that he came upon the disturbance which was going on outside the restaurant and that when a marked police cruiser arrived someone shouted that someone was going to get arrested. The appellant fled along with everyone else. He separated from the others and was taken down by two police officers. He denied having a gun but alleged that the police had assaulted him on his arrest, although there was no medical evidence to corroborate this. He denied ever telling his lawyer that he was in possession of the gun. Mr. Rusonik’s evidence was to the same effect.
 The appellant’s conviction on October 22, 1997 came at the end of his fourth trial on these charges. His first trial in the fall of 1996 took six days. The Crown did not seek to call the DiCecco evidence. The appellant testified in his own defence. After ten hours of deliberation, the jury advised that they were deadlocked on all charges and a mistrial was declared.
 Prior to the appellant’s second trial, the Crown indicated its intention to call the DiCecco evidence, forcing Mr. Rusonik to remove himself as defence counsel. The appellant was unrepresented at his second trial, having been refused an adjournment to retain counsel. After seven days of trial, a mistrial was declared when the trial judge became concerned about the appellant’s self-representation.
 The third trial commenced on October 6, 1997, and after seven days of trial the trial judge discharged a juror who was having difficulty with the English language. This left only ten jurors and rather than continue the trial judge decided to order a mistrial and begin again immediately with 12 jurors.
 Thus the fourth trial began on October 14, 1997. When sentence was passed on October 30, 1997, the appellant had been in pre-trial custody for almost seven months. He has remained in custody for three and one-half years since then.
 The appellant’s first ground of appeal is that the trial judge erred in admitting the evidence of the appellant’s utterance overheard by Mr. DiCecco. Relying on R. v. Ferris,  3 S.C.R. 756, 34 C.R. (4th) 26, affirming (1993), 27 C.R. (4th) 141 (Alta. C.A.), the appellant argued that the utterance cannot meet the threshold of relevance required for admissibility because its meaning cannot be determined without its context or alternatively its meaning is so speculative that it ought to have been excluded because its prejudicial effect outweighed its tenuous probative value. I agree.
 The facts in Ferris closely parallel this case. The accused was arrested for murder and taken into police custody. He was permitted to telephone his father from the police station. A police officer walked past the accused on two occasions while he was on the phone. On the first occasion the accused was overheard to say “I’ve been arrested” and on the second occasion, shortly thereafter, “I killed David.” The police officer heard the appellant talking before, after and in between the two sets of words but, apart from the quoted utterances, he could not tell what was said. The trial judge ruled that the officer could give evidence of the two overheard utterances.
 Conrad J.A., writing for the majority in the Alberta Court of Appeal, turned first to whether, in the circumstances, it was possible to ascertain the meaning of these words so that they could be said to meet the relevance requirement for admissibility. She pointed out that the only possible relevance of these words was if they could be found to constitute an admission by the accused that he killed David. However, the Crown had no evidence of the words preceding or following the overheard phrases and Conrad J.A. cited examples of possible surrounding words that would make the full statement innocuous rather than an admission of guilt and hence not probative of any fact in issue. Given that there was a verbal context for the overheard phrases but no evidence of what that context was, Conrad J.A. found that a properly instructed jury could not determine from the fragmented utterance which was overheard the meaning either of the whole thought or of the overheard words themselves. Hence she concluded that t hese words could not be said to be probative of a fact in issue and were therefore irrelevant and inadmissible.
 Conrad J.A. went on to find that since the utterance “I killed David” had no probative value (given that the court did not know the words surrounding it) and since the utterance was extremely prejudicial its exclusion must be favoured. On this basis as well she found that the overheard words should not have been admitted.
 The Supreme Court of Canada dismissed the appeal from this judgment. The reasons of the court by Sopinka J. are as follows:
In our opinion, with respect to the evidence that the respondent was overheard to say “I killed David”, if it had any relevance, by reason of the circumstances fully outlined by Conrad J.A. [reported at (1994), 27 C.R. (4th) 141 (Alta. C.A.)], its meaning was so speculative and its probative value so tenuous that the trial judge ought to have excluded it on the ground its prejudicial effect overbore its probative value.
The appeal is therefore dismissed.
 In my view, Sopinka J.’s reasoning is anchored in the important role that context can play in giving meaning to spoken words. Where an overheard utterance is known to have a verbal context, but that context is itself unknown, it may be impossible to know the meaning of the overheard words or to otherwise conclude that those words represent a complete thought regardless of context. Even if the overheard words can be said to have any relevance, where their meaning is speculative and their probative value therefore tenuous yet their prejudicial effect substantial, the overheard words should be excluded.
 When the principles derived from Ferris are applied to this case, I think the evidence must be excluded as it was in Ferris. The only possible relevance of the overheard utterance is if it could be found to constitute an admission by the appellant that he had a gun. Here, as in Ferris, the trial judge found that the overheard utterance had a verbal context, which is unknown and that it was part of a fuller statement. That statement may have been a statement such as “I could say I had a gun, but I didn’t point it, but I won’t because it is not true” or “What if the jury finds I had a gun but I didn’t point it — is that aggravated assault?” Neither would constitute an admission. Indeed, given the reasoning of the trial judge, had these possibilities been pointed out to him he might well have reached a different conclusion.
 In my view, without the surrounding words, it would be impossible for a properly instructed jury to conclude that the overheard utterance was an admission or perhaps even what it meant. Clearly its meaning remains highly speculative. The trier of fact would have to guess at the words that came before and after to fix on a meaning. Since its meaning is highly speculative, its probative value is correspondingly tenuous. However, the substantial prejudicial effect is obvious. This balance clearly favours exclusion of the overheard utterance and, as in Ferris, that should have been the result.
 I would therefore conclude that the trial judge erred in admitting the overheard utterance by the appellant. As a result, I need not decide whether he also erred in determining that the utterance was not protected by solicitor-client privilege.
 The Crown argued that even if the overheard utterance was admitted in error, it resulted in no substantial wrong or miscarriage of justice. I do not agree. The Crown characterized this evidence as very critical. Moreover, in the appellant’s first trial where the one significant difference appears to be that this evidence was not called by the Crown, the result was a deadlocked jury and a mistrial. I do not think it can be said that without this evidence the verdict would necessarily have been the same.
 Turning to the second ground of appeal that I propose to deal with, the appellant argued that two passages in the charge to the jury impermissibly undermined his right to silence. I agree. In reviewing the evidence for the jury, the trial judge said this:
The accused indicated he was never advised of his rights at the scene, and you heard him indicate he has been arrested before. If you have been arrested before and you are walking up to Bloor Street and you have done nothing, you may want to ask, “What am I being arrested for?” You may want to ask yourself that question. You heard how long this run was along the laneway down to Marguerita Street and the walk back up Marguerita to go to Lucky’s [sic]. If you have done nothing and you have been pinched and arrested before, you might say, “What are you arresting me for?” You may ask that. He said there was no conversation to that effect. “I wasn’t told why I was arrested by Robinson.”
 Further on in the same section of his charge, the trial judge repeated this thought:
I say to you you may want to ask yourself on the way up to Bloor Street why not ask, “Why am I being arrested?” if you had done nothing.
 In my view, this was an error. On the narrow question of the appellant’s credibility with respect to whether the appellant had been informed of his rights and made the statement attributed to him, it may have been permissible to consider the appellant’s admission that he did not ask why he was being arrested. I need not express a final conclusion on that issue since the trial judge did not limit the use of the evidence to that narrow issue. The fact that the appellant did not ask the reason for his arrest could not be used as positive evidence of guilt and certainly not on the basis that if he was innocent he would have asked the reason for his arrest. Following his arrest, the appellant was not obliged to make any statement. The trial judge’s comments expressly invited the jury to use the appellant’s exercise of his right to silence as consciousness of guilt.
 Moreover, there is nothing in the charge read as a whole that can be said to neutralize this error. The Crown points to an earlier passage in the charge where the jury was instructed that they should not draw an adverse inference from the appellant saying at the conclusion of a later interview at the police station with Detective Pasini that he did not want to answer any more. While the trial judge instructed the jury at that point that the appellant was entitled not to talk, this instruction was narrowly focused on the evidence of what the appellant said at the end of his interview with Detective Pasini. It was not enough in my view to displace the implicit suggestion made to the jury by the trial judge himself that if the appellant were innocent he would have asked why he was being arrested.
 In summary, the error in admitting the overheard utterance of the appellant and the error in inviting an infringement of the appellant’s right to silence require that the appellant’s conviction be set aside.
 In considering whether a new trial should be ordered or a judicial stay of proceedings imposed under s. 24(1) of the Canadian Charter of Rights and Freedoms, the following considerations are relevant:
(1)If a new trial were ordered it would constitute the appellant’s fifth trial based on these allegations. In R. v. Jack,  2 S.C.R. 334, 117 C.C.C. (3d) 43, the Supreme Court of Canada approved the statement by the Manitoba Court of Appeal that it would be a very rare case indeed, where putting an accused in jeopardy with respect to a serious charge for a fourth time would not constitute a breach of s. 7 of the Charter and an abuse of process sufficient to warrant a judicial stay of proceedings under s. 24(1) of the Charter. In my view, there is nothing that would put this into that very limited class of cases.
(2)The Crown’s case was not overwhelming. The fact that the first jury to hear the case was deadlocked reflects this. The Crown’s case relied significantly on the evidence of the three plainclothes officers. However, that evidence included evidence that they had given chase to an armed man without calling for backup, that the officer fired at had not warned the others of this and that the officer who finally approached and grabbed the appellant did not draw his own gun or make a note that the appellant had a gun. Apart from the impugned evidence of the overheard utterance, there was little other evidence to support the Crown’s case.
(3)The appellant spent almost seven months in pre-trial custody and has served over three and one-half years since his sentence was pronounced on October 30, 1997.
(4)At the hearing of this appeal the question arose as to whether the appropriate charge on these facts was not aggravated assault (endanger life), but the lesser charge of assault with a weapon. Suffice it to say that I have serious reservations as to whether on the facts of this case a charge of aggravated assault could be made out: R. v. Melaragni (1992), 75 C.C.C. (3d) 546 (Ont. Gen. Div.) at p. 552.
 Taking these circumstances together, it is my view that to put the appellant on trial for a fifth time would constitute an abuse of process warranting a judicial stay of the proceedings against him.
 In summary, for the reasons I have given, I would allow the appeal, set aside the conviction and impose a stay of proceedings.