R. v. Mallory, 2007 ONCA 46
[85] Unfortunately, the parties and the trial judge did not have the benefit of this court’s judgment in R. v. Dhillon (2002), 2002 CanLII 41540 (ON CA), 166 C.C.C. (3d) 262 (Ont. C.A.), which considered the issue of investigative hearsay. At para. 51 of their reasons, Laskin and Goudge JJ.A. offered the following “general observations about investigative hearsay evidence led to address a defence contention of an inadequate police investigation”:
(a) The risks of an accused advancing this kind of defence are all too apparent.
(b) If an accused intends to claim that a police investigation was inadequate, it may well be safest for the trial judge to conduct a full voir dire before ruling. In a voir dire, the trial judge can more precisely balance the probative value and prejudicial effect of the proposed evidence and need not rely on counsel’s broad representations about the evidence. Moreover, the accused’s decision about whether to pursue this line of questioning can then be made with fuller information about its potential impact.
(c) If the defence seeks to cast doubt on the adequacy of the investigation of other possible suspects, in principle we see no reason why the Crown is necessarily precluded from leading evidence about the police investigation of the accused, provided that evidence is relevant to the adequacy of the investigation. With limited resources, police decisions about investigating other suspects may well depend on their knowledge of the accused and his activities.
(d) If evidence of the police investigation is admissible and is pursued, its limited use must be made clear to the jury. See R. v. Starr, 2000 SCC 40 (CanLII), [2000] 2 S.C.R. 144, 147 C.C.C. (3d) 449 at para. 184. In the course of instructing the jury on the permissible uses of this evidence, the trial judge would be wise to highlight specifically those parts of the investigation that would otherwise be inadmissible as either hearsay or police opinion.
[86] This case demonstrates the wisdom of these general guidelines.
[87] First, the decision by an accused to attack the integrity of the investigation is a permitted but risky strategy. The risk is that the accused will make relevant and admissible evidence that the Crown could not ordinarily lead. In this case, a considerable volume of what would otherwise have been inadmissible hearsay relating to the decisions made by the investigative team and the progress of the investigation became admissible because of the defence strategy. The problem escalated when, during Lamarche’s cross-examination, the defence introduced the “other suspects” issue over the Crown’s objection. The trial judge made a ruling permitting the appellants to cross-examine Lamarche on that issue and that ruling was not challenged on this appeal. Accordingly, like the court in R. v. Dhillon, supra, at para. 46, we conclude that this is not the proper case to decide “when, if ever, the defence should be permitted to introduce investigative hearsay evidence to support an allegation that the police investigation of other leads was inadequate” and we should not be taken as endorsing the trial judge’s ruling in this case. We observe, however, that by raising the “other suspects” issue, the defence invited a response that included damaging hearsay evidence, much of it led in reply, as to what the police did and why they did it.
[88] Second, the history of this case demonstrates the wisdom of confronting the issue as early as possible in the trial, whether following a voir dire or otherwise, to obtain a clear ruling to define the parameters and limits on this type of evidence and to ensure that the evidence will be led in an orderly manner that is fair to both sides.
[89] The problem began when the Crown introduced the issue in its opening and then in direct examination of Lamarche in an attempt to bolster Gaudreault as a witness. The issue of the integrity of the investigation was one for the defence to raise, not for the Crown to anticipate. Unless and until the defence introduced the issue, the Crown should have avoided it. A defence attack on the investigation may well have appeared inevitable, but in our view the Crown should have left the issue alone and done nothing that could be seen as forcing the defence’s hand. We deal below with other problematic aspects of the Crown’s opening which have at their core the same common element: rather than present an outline of the case it intended to lead, the Crown used the opening to argue the case.
[90] We certainly do not say that the unsatisfactory manner in which this issue unfolded was entirely attributable to the Crown. The defence attacked the investigation and that attack invited a response. The defence’s introduction of the “other suspects” issue mid-way through Lamarche’s cross-examination had a cascading impact resulting in Lamarche testifying over several days in re-examination. This produced the unfortunate result of the Crown leading a highly contentious body of damaging hearsay evidence in circumstances offering the defence little or no chance to challenge it. Clearly, it would have been preferable had the entire issue been confronted at the outset to enable the trial judge to fashion a ruling that would permit the fair and orderly presentation of any proper evidence relating to the integrity of the investigation.
[91] Third, there are limits to the evidence the Crown can lead in response to a defence attack on the integrity of the investigation. The Crown’s evidence must be relevant to the attack: see R. v. Dhillon, supra, and the discussion of the Sauvé manslaughter conviction, below. The trial judge must precisely balance the probative value and prejudicial effect of the proposed evidence. In our view, the evidence led through Lamarche of information received from unnamed confidential informants the Crown did not call implying that Sauvé and Trudel had confessed to the crime was obviously suspect on that score.
[92] Fourth, as stated in R. v. Dhillon, supra, a careful instruction to the jury as to the limited permissible use of the hearsay evidence is required. As we have already indicated, the trial judge did provide a general limiting instruction, but unfortunately, when it came to summarizing the evidence, he included some elements of the investigative hearsay evidence. It would be asking too much to expect the jury to apply the general instruction, especially as the trial judge himself appears to have overlooked the hearsay quality of this evidence.
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