R. v. Van, 2009 SCC 22, [2009] 1 SCR 716

                                                 SUPREME COURT OF CANADA

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.

______________________________

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 unreasonable verdict, or a miscarriage of justice. In this case, it is not disputed that the failure to give a limiting instruction is an error of law that falls within s. 686(1) (a)(ii) and that the appeal could therefore have been allowed.  However, it still falls to this Court to determine whether the convictions can be upheld despite the existence of an error, with resort to s. 686(1)(b)(iii) of the Code. Under this provision, a conviction can be upheld providing that the error has not resulted in a substantial wrong or a miscarriage of justice.  The Crown bears the burden of showing the appellate court that the provision is applicable, and satisfying the court that the conviction should stand notwithstanding the error.  To do so, it must establish that the error of law falls into one of two categories.  First, that it is an error so harmless or minor that it could not have had any impact on the verdict.  In the second category are serious errors that would otherwise justify a new trial or an acquittal, but for the fact that the evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain:  Khan; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239.

[35]       In Khan, this Court reviewed these two categories of error and explained the basis for upholding convictions in the face of these errors.  An error falling into the first category is an error that is harmless on its face or in its effect.  The proviso ensures that an appellate court does not need to overturn a conviction solely on the basis of an error so trivial that it could not have caused any prejudice to the accused, and thus could not have affected the verdict.  Indeed, it would detract from society’s perception of trial fairness and the proper administration of justice if errors such as these could too readily lead to an acquittal or a new trial (e.g. Chibok v. The Queen (1956), 24 C.R. 354 (S.C.C.), at p. 359).  This is consistent with Lamer C.J.’s pronouncement in R. v. Jacquard, [1997] 1 S.C.R. 314, that, in respect of errors in a trial judge’s charge to the jury, “accused individuals are entitled to properly instructed juries. There is, however, no requirement for perfectly instructed juries” (para. 2 (emphasis in original)).  Thus, a slight deviation from the standard of a perfect jury charge is likely to constitute a harmless error that could justify upholding a conviction.  Errors might also be characterized as having a minor effect if they relate to an issue that was not central to the overall determination of guilt or innocence, or if they benefit the defence, such as by imposing a more onerous burden on the Crown (Khan, at para. 30).  The question of whether an error or its effect is minor should be answered without reference to the strength of the other evidence presented at trial.  The overriding question is whether the error on its face or in its effect was so minor, so irrelevant to the ultimate issue in the trial, or so clearly non-prejudicial, that any reasonable judge or jury could not possibly have rendered a different verdict if the error had not been made.

[36]       An appellate court can also uphold a conviction under s. 686(1)(b)(iii) in the event of an error that was not minor and that cannot be said to have caused no prejudice to the accused, if the case against the accused was so overwhelming that a reasonable and properly instructed jury would inevitably have convicted (Khan, at para. 31).  The ability to uphold a conviction in the face of a serious error at trial was aptly expressed by Sopinka J. in R. v. S. (P.L.), [1991] 1 S.C.R. 909, who wrote that “depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction” (p. 916, affirmed in Khan, at para. 31).  The high standard of an invariable or inevitable conviction is understandable, given the difficult task for an appellate court of evaluating the strength of the Crown’s case retroactively, without the benefit of hearing the witnesses’ testimony and experiencing the trial as it unfolded (Trochym, at para. 82).  It is thus necessary to afford any possible measure of doubt concerning the strength of the Crown’s case to the benefit of the accused person.  The rationale for upholding a conviction in these circumstances is persuasive; in the words of Binnie J. in R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 46: 

Where the evidence against an accused is powerful and there is no realistic possibility that a new trial would produce a different verdict, it is manifestly in the public interest to avoid the cost and delay of further proceedings. Parliament has so provided.

This reasoning was echoed in my concurring reasons in Khan (at para. 90).  Thus, an appellate court is justified in refusing to allow an appeal against a conviction in the event of minor errors that could not possibly have affected the verdict and more serious errors that were committed in the face of an overwhelming case against the accused, since the underlying question is always whether the verdict would have been the same if the error had not been committed: R. v. Bevan, [1993] 2 S.C.R. 599.

D.     Application to This Case

[37]       In this appeal, the error lies in the trial judge’s failure to include a limiting instruction in his charge to the jury concerning the permissible use of Det. Sgt. Nealon’s testimony.  I believe that while this error might not seem trivial when considered in isolation, its effect was sufficiently harmless in context that no prejudice was caused to the accused and the verdict would necessarily have been the same absent the error.

[38]       First, the majority of the hearsay evidence that was introduced through Det. Sgt. Nealon’s testimony was properly before the jury through the direct, admissible evidence of other witnesses.  Most of Det. Sgt. Nealon’s references to statements made by Mr. Kong, for example, were matched by Mr. Kong’s direct testimony at trial.  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.  For instance, the respondent seeks to impugn Det. Sgt. Nealon’s statements regarding the notes he received from the officers who had initiated the investigation, his communications with Mr. Kong’s sisters, and his interviews with employees of Casino Niagara and an Ontario Provincial Police officer stationed at that casino.  However, none of this evidence was controversial or contested by the defence at trial, and none pointed to the guilt or innocence of the accused.  It simply formed part of the narrative of the investigation, and the jury’s knowledge of these events could not have caused any prejudice to the accused.  The lack of centrality of the otherwise inadmissible hearsay evidence introduced through Det. Sgt. Nealon’s testimony in the absence of a limiting instruction points to the error’s minor effect.

[39]       Second, it must be conceded that Det. Sgt. Nealon’s statement of his opinion of the respondent’s guilt was unwarranted and clearly foreclosed by the jurisprudence, due to the danger of the jury uncritically accepting the witness’s opinion without drawing their own conclusions about the evidence (e.g. R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 49).  However, the expression of this opinion in the absence of a limiting instruction likely had an insignificant impact on the verdict in the context of Det. Sgt. Nealon’s testimony and the trial as a whole.  Detective Sergeant Nealon 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 Mr. Van.  In so doing, it would be natural for him to suggest that he believed he was pursuing the appropriate leads by investigating Mr. Van.  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.  I trust that they would have understood their role as primary fact finders at trial.

[40]       My colleague suggests that Det. Sgt. Nealon’s testimony was of particular importance in the trial and states at para. 53 of his reasons that “the case, as left to the jury, in effect pitted the opinion of an experienced and respected police officer against the testimony of the accused”.  I do not believe that one clear statement of the officer’s opinion and one ambiguous statement of opinion made in the course of a 17-day trial are sufficient to completely alter the nature of the trial as suggested.  While Det. Sgt. Nealon 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.  I cannot accept that the jury would have attributed such significant weight to Det. Sgt. Nealon’s testimony, regardless of his years of experience or his seat at the counsel table in the courtroom.  Again, I by no means wish to be understood as condoning the use of opinion statements in circumstances such as these.  However, I fail to see how this particular statement of the officer’s opinion could possibly have affected the verdict when viewed in context.

[41]       Third, I respectfully disagree with the majority of the Court of Appeal’s conclusion that Det. Sgt. Nealon’s reference to “information that I received” could have led the jury to believe that he was in possession of inculpatory evidence not presented at trial (para. 31).  It is only when read in isolation that Det. Sgt. Nealon’s reference to information he received might have been understood to refer to evidence that was not before the jury.  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. Again, the jury were properly instructed on numerous occasions to rely only on evidence presented at trial and not to engage in speculation.  For instance, the trial judge stated in his charge to the jury:

You are entitled to come to some common sense conclusions based on the evidence that you accept, but you must not speculate about what evidence there might have been, or permit yourselves to guess or make up theories without evidence to support them. [A.R., at pp. 1180-81]

Thus, I concur with Winkler C.J.O., dissenting at the Court of Appeal, that it is highly unlikely that the jury would have understood Det. Sgt. Nealon’s statement to refer to undisclosed sources, or that they would have relied on this inference in their deliberations.    

[42]       As for the Crown’s question to Det. Sgt. Nealon 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”, I believe that her choice of words was, while misguided, of little consequence and would not have caused any real prejudice to the accused.  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 Det. Sgt. Nealon had recounted previously could go to the ultimate issue of guilt is unfounded.  Even taken together with the other troubling aspects of Det. Sgt. Nealon’s testimony, the lack of a limiting instruction on this issue would not have made any significant difference to the jury’s perception of Det. Sgt. Nealon’s testimony.

[43]       It should be noted that defence counsel failed to object to many of the questions put to Det. Sgt. Nealon, whose answers are now the subject of appeal, and that counsel registered no complaint following the trial judge’s charge to the jury in which a limiting instruction was notably absent.  A failure to object to an error may suggest that the error was not serious or that it did not result in an unfair trial (Jacquard, at para. 38; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58).  That said, an error might still be considered serious despite the absence of an objection at trial (R. v. Arcangioli, [1994] 1 S.C.R. 129, at p. 143; R. v. Chambers, [1990] 2 S.C.R. 1293, at pp. 1319-20).  In this case, the appellant suggests that defence counsel’s failure to object may have been tactical, as the defence would not have wanted to further confine the use to which the officers’ testimony, so central to the defence, could be made.  However, the majority of the Court of Appeal questioned the logic of this submission, since the trial judge had cautioned the jury about the shortcomings of the defence’s loan-shark theory.  Accordingly, a limiting instruction with respect to the officers’ testimony could not have done any further harm to the defence theory.  I am inclined to this view myself, and believe that 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. 

[44]       While this case did involve a contest of credibility between the parties, there were no serious credibility issues raised by the defence evidence.  For example, the respondent seeks to impugn Mr. Kong’s credibility by pointing to his inability to accurately describe his injuries in a manner consistent with the medical records.  The respondent notes that Mr. Kong did not testify that he had been stabbed on the left chest as well as the right, and did not say that he had been stabbed in the abdomen causing harm to his intestines. The medical evidence, however, clearly showed that these injuries had occurred.  With respect, I must confess that I find this argument bordering on absurd.  Regardless of whether Mr. Kong was fully aware of the extent of his injuries, the injuries themselves are not contested.  Moreover, one would not expect the victim of an attack so severe as this to be cognizant of each and every injury he sustained.

[45]       For these reasons, I conclude that the trial judge’s error in failing to give a limiting instruction on the permissible use of the investigative police evidence was minor.  It was unlikely to have caused any real prejudice to the accused and would not have had any effect on the jury’s verdict.

E.      The Scope of This Appeal

[46]       The appellant asks this Court to provide guidance on the difficult question of “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” (Dhillon, at para. 46).  This defence strategy certainly has potential to derail the trial process or even to cause irremediable prejudice to the accused.  In Dhillon, for instance, the Ontario Court of Appeal held that the Crown’s introduction of bad character evidence of the accused and his family to rebut the defence allegation of inadequate investigation so thoroughly tainted the proceedings that it ordered a new trial.  Similarly, in anticipation of the defence’s attack on the integrity of the police investigation in Mallory, the Crown led a substantial amount of highly prejudicial hearsay evidence, including evidence of a prior conviction, admissions by the accused and otherwise inadmissible police intelligence information.  Of course, the potential for this defence to spiral out of control does not mean that a trial can never function effectively when it is raised by the defence: see Lane, at paras. 40-50.  But we must remain aware that this defence has the potential to divert criminal trials into blind alleys or to introduce side issues that may prove irrelevant to the central issue of the guilt or innocence of the accused.

[47]       In this case, the trial judge’s decision to admit evidence pertaining to the allegation of inadequate investigation was not challenged in the courts below, and the question of its admissibility was not developed by the parties in the current appeal.  For these reasons, this is not an appropriate case in which to provide the parameters for the defence’s use of investigative hearsay evidence to support an allegation of inadequate or defective investigation.

V.     Conclusion

[48]       In sum, the trial judge’s error in failing to provide the jury with a limiting instruction concerning the lead investigator’s testimony had a sufficiently minor effect that it could not possibly have affected the verdict.  Applying s. 686(1)(b)(iii) of the Criminal Code , I would allow the appeal and restore the respondent’s convictions.

[49]       The respondent had also appealed his sentence at the Court of Appeal. The majority did not need to address this issue in light of their decision to stay the proceedings. Given this Court’s decision to restore the convictions, however, the matter of the sentence appeal must be remitted to the Court of Appeal for full consideration.

The reasons of Binnie, Fish, Charron and Cromwell JJ. were delivered by

Cromwell J. (dissenting) —

I.       Introduction

[50]       There is no doubt that the victim, Mr. Kong, was viciously attacked.  At issue at trial was whether his assailant was the respondent Mr. Duc Van.   He testified and called other evidence to support his position that he was not Mr. Kong’s attacker.  Credibility was thus a critical issue at trial.

[51]       The Crown’s case included testimony from a senior police officer that, in his opinion, the accused was guilty. The officer’s testimony also implied that his opinion was based in part on facts which corroborated Mr. Kong’s version of events but which were not before the jury.

[52]       It is common ground that the trial judge erred in law by failing to give the jury proper instructions about the very limited use they could make of this evidence. There is no dispute between the parties that this was no mere minor or trivial error on its face and that the evidence against the accused was not overwhelming.  The Crown maintains, however, that this error should be overlooked because there is no reasonable possibility that it made any difference in the jury’s decision to convict.    I cannot accept this contention. 

[53]       In a case in which the respondent’s and Mr. Kong’s credibility was front and centre, the case, as left to the jury, in effect pitted the opinion of an experienced and respected police officer against the testimony of the accused in a way not permitted by law.  The key question at trial was whether there was a reasonable doubt on all of the evidence.  In my opinion, it cannot be said in that context that it was a harmless error to leave the officer’s opinion to the jury without telling them they should give it absolutely no weight.  With great respect for those of a contrary view, I would affirm the decision of the majority of the Court of Appeal to that effect and dismiss the appeal.

II.      What Is in Issue and What Is Not

[54]       The way in which the case comes to us and the Crown’s position significantly narrow the issues.  It is therefore helpful at the outset to clarify what is and what is not before us for decision. 

[55]       There is no dispute that the trial judge made a legal error by failing to give the jury instructions required by law about the limited use they could make of the officer’s testimony.  The sole issue raised by the Crown’s appeal as of right is the one on which Winkler C.J.O. dissented in the Court of Appeal: whether the trial judge’s erroneous failure to give the required instructions to the jury occasioned no substantial wrong or miscarriage of justice as set out in s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 .

[56]       There is also no dispute about the legal principles governing the application of this section of the Code, which is often called the proviso.  It is common ground that the proviso may be applied only if the error was harmless in the sense that even without the error, there is no reasonable possibility that the verdict would have been different: see e.g. R. v. Bevan, [1993] 2 S.C.R. 599.  There are two types of situations in which an error may be said to have had no effect on the verdict.   The first includes both an error that is trivial or minor on its face or minor in its effect, and the second includes cases against the accused that are so overwhelming that any other verdict but a conviction would be impossible.  The Crown concedes, and rightly so in my view, that this is neither a case where the error itself was minor on its face, nor one where the evidence was overwhelming.

[57]       The issue for us in this case is whether the error, while not minor on its face, is nonetheless harmless because there is no reasonable possibility that it made a difference: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 30; R. v. Rockey, [1996] 3 S.C.R. 829, at para. 2.  The Crown’s position is that this is the only basis on which the error here may be said to be harmless. As Crown counsel put it in both his oral submissions and in his factum, we are here concerned with an error that is not minor on its face which the Crown submits had minor effects (transcript, at p. 27; A.F., at para. 33). 

[58]       The parties agree that this error cannot be said to be harmless because it was trivial.  Trivial errors are so minor in themselves that they can be said not to have affected the result: see e.g. Khan, at paras. 29-30.  The  Crown not only concedes that the error here was not minor on its face, but submits that that position cannot reasonably be argued.  As the Crown put it in its factum (at para. 33): “Because the instruction was omitted entirely, it cannot be reasonably argued that the error was minor on its face.”  (Emphasis added.)

[59]       The Crown does not contend that the evidence of the respondent’s guilt was overwhelming.  Where there is overwhelming evidence, an error is harmless because, even without it, any verdict other than a conviction would have been impossible in the face of that overwhelming evidence: Khan, at para. 31.  That, however, is not this case.  As Crown counsel conceded during oral submissions and in his factum, “ this is not an overwhelming case” and “I don’t argue that it’s an overwhelming case in the sense that even a serious error with serious effects could be cured.  It’s not that kind of a case” (transcript, at pp. 6 and 26 (emphasis added); A.F., at para. 46).  In my view, this concession was properly made, given the serious credibility issues raised by the defence evidence: see e.g. 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.

[60]       The issue for us to resolve is therefore a narrow one: May the trial judge’s failure to give the required instructions be found to have been harmless because there is no reasonable possibility that it had any effect on the verdict?

[61]       To explain why I conclude that this is not the case, I will first place the error in the context of this trial, briefly review the relevant legal principles and then explain why, in my view, there is a reasonable possibility that the wrongly omitted instructions had some effect on the outcome of the trial.

III.    The Error in Context

1.      The Factual Context at Trial

[62]       The respondent was convicted of attempted murder, robbery and forcible confinement after a 17-day jury trial.  Not in dispute was that there had been a vicious attack on the victim, Mr. Kong, an attack that he was fortunate to have survived.  In issue, however, was whether the respondent was the attacker.  Mr. Kong had initially been unable to communicate effectively with the police, who suspected that the crime might have been connected to the collection of debts associated with Mr. Kong’s illegal gambling activities.  Mr. Kong subsequently identified the respondent as his attacker.

[63]       The  case therefore turned on credibility: Mr. Kong and the respondent put to the jury two different versions of the events leading up to and including the assault. 

[64]       Mr. Kong testified that on the night before the assault, he and the respondent had gone to Casino Niagara together in the respondent’s van.  On the return trip in the early hours of the morning, Mr. Kong testified that the respondent hit him on the head with a hammer but had claimed it was an accident.  Later that day, he was stabbed in his apartment and robbed of a substantial quantity of cash.  He recounted the assault in great detail, identifying the respondent as the assailant. 

[65]       The respondent testified and called evidence.   His fundamental position was that he had not been the attacker.  He admitted to having gone to a casino with Mr. Kong the day before and to having delivered food to him at his apartment on the day of the attack, but he denied any involvement in the crime.  His defence suggested that the police had been too hasty in rejecting their initial suspicion that the attack on Mr. Kong was by someone trying to collect gambling debts (the so-called loanshark theory).  The respondent also introduced evidence as to his whereabouts on December 21 that contradicted certain aspects of Kong’s evidence as to the events that transpired on the day of the crime.

[66]       Thus, credibility and existence of reasonable doubt on all of the evidence were the key issues before the jury: Mr. Kong gave one version of the facts and the respondent gave a markedly different version.

2.      The Problematic Evidence

[67]       The problematic evidence in the case was given by Det. Sgt. Dan Nealon. As set out by Sharpe J.A., writing for the majority of the Court of Appeal (2008 ONCA 383, 92 O.R. (3d) 462, at paras. 21‑28),  Det. Sgt. Nealon, then a 19‑year veteran of the Toronto Police Service, led the investigation together with Det. Craig Morton.  Detective Sergeant Nealon’s position before the jury was prominent. As the lead investigator assisting the Crown, he was exempted from the order excluding witnesses and, for most of the trial, he sat with the Crown at the counsel table. Detective Sergeant Nealon testified after all but one of the other police officers had given their evidence and immediately before Mr. Kong testified. Detective Sergeant Nealon’s evidence added little to the testimony of the other police officers or to the direct evidence of Kong that would follow. The purpose of his evidence appears to have been to explain the steps the police had taken to investigate the attack, and to satisfy the jury that the crime had been properly and thoroughly investigated.

[68]       Detective Sergeant Nealon testified that he had reviewed the notes of the other officers involved in the investigation and described the various steps he took to find information about Mr. Kong through Mr. Kong’s family, through inquiries at the casino, and through a search for the respondent’s van. He explained that, as there initially had been some thought that the attack might have been gang‑related, a police guard had been placed at Kong’s bedside “in the off‑chance that whoever it was that committed this crime had wanted to finish the job off”.  Detective Sergeant Nealon testified that he spoke to an Ontario Provincial Police (“OPP”) officer at the casino who shared “intelligence information” which “more or less corroborated what the victim was telling [him]”.

[69]       Significant aspects of Det. Sgt. Nealon’s evidence as to how the investigation proceeded were based upon hearsay or unidentified sources. At several points, although he was cautioned not to give hearsay evidence, he related what he had done as a result of obtaining information from various sources, including Mr. Kong. Detective Sergeant Nealon related his efforts to obtain information from Casino Niagara that showed the respondent’s history there. He also testified that a police officer had traced the ownership of the respondent’s van. He related a second‑hand hearsay description of the respondent given to another police officer by a witness.

[70]       As he narrated the events of the investigation, Det. Sgt. Nealon indicated that as the various bits of information — some of which he described and some of which the Crown conceded were hearsay and which the jury was told it could not receive —  were assembled, the investigation was “looking significantly better” as he and his team honed in on the respondent as Mr. Kong’s assailant. At various points in his evidence, Det. Sgt. Nealon offered his personal opinion as to the respondent’s guilt: “It was my intention [sic] at that point [following an interview with Mr. Kong] that the man responsible for this attack on [Mr. Kong] was a person known as Duc Van, driving a 1987 Dodge Caravan, red in colour, with that licence plate.”

[71]       When defence counsel’s cross‑examination of Det. Sgt. Nealon began probing his investigation and knowledge of Mr. Kong’s involvement in illegal gambling and Asian gangs, Crown counsel objected to the potential introduction of hearsay evidence. As a result, defence counsel agreed to restrict his questions to the witness’s suspicions about Asian gangs and the steps he took to investigate such suspicions.  Detective Sergeant Nealon agreed that one of the photo line‑ups shown to Mr. Kong included a man suspected of being a collector for loansharks and a potential suspect in the case and that one avenue the investigation had followed was the possibility that Mr. Kong had a gambling debt. He agreed that he had received information regarding a story in a Chinese‑language newspaper that had caused Mr. Kong fear because it identified him as a victim and published his name and address. Detective Sergeant Nealon also agreed that once Mr. Kong identified the respondent as his assailant, all other investigation stopped and the police focussed on finding the respondent and evidence to corroborate his guilt.

[72]       The trial judge permitted Crown counsel to revisit on re‑examination the reasons for the investigation’s focus on the respondent:

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 to not to put too fine a point 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 . . . and information that I received. [Emphasis added; A.R., at pp. 306-7.]

Detective Sergeant Nealon’s evidence, in chief and in re-examination, included both hearsay and police opinion evidence and suggested that his opinion was not based solely on information otherwise before the jury and that such information corroborated Mr. Kong’s version of the events.

3.      The Legal Framework

[73]       The Court of Appeal unanimously found that this investigative hearsay and police opinion testimony required limiting instructions.  As Sharpe J.A. put it on behalf of the majority (and the dissenting judge, Winkler C.J.O., did not disagree on this point), the trial judge should have cautioned the jury “that this evidence was to be used only as narrative to explain how the investigation had proceeded and that the hearsay and the sources undisclosed to the jury that were used by Nealon to further the investigation, as well as Nealon’s opinion, were otherwise inadmissible and did not amount to evidence the jury could use to find that the appellant was guilty of the offences” (para. 30).

[74]       Without these instructions, there were two related dangers that would go unaddressed:  first, that the jury would improperly use the so-called “investigative hearsay” evidence as evidence of its truth and, second, that the jury would wrongly attach weight to the officer’s personal opinion that the respondent was guilty. 

[75]       In combination, these two problematic aspects were of more concern than either might have been on its own.  Each reinforced the other.   Detective Sergeant Nealon’s opinion likely bolstered Mr. Kong’s credibility, as did the implication that Det. Sgt. Nealon relied in forming that opinion on material not before the jury but which corroborated Mr. Kong’s evidence. As Sharpe J.A. put it, at para. 31:

Especially troubling is the suggestion created by Nealon’s evidence as a whole — and in particular by what he said in re‑examination — that as a result of a body of information not disclosed to the jury, he had formed the opinion that the appellant was guilty. Repeated references to information that “unfolded” and to “information that I received” could well have been taken by the jury to suggest that this senior and respected police officer had evidence inculpating the appellant that had not been presented at trial. The jury should have been warned against drawing that inference.

4.      The Possible Impact on the Verdict

[76]       As noted, the respondent testified and denied being the attacker.  He also called evidence that supported certain aspects of his version of events and was inconsistent with certain aspects of Mr. Kong’s testimony. The jury was properly instructed that even if it did not believe the respondent’s evidence, he should be acquitted if his testimony left them with a reasonable doubt about his guilt or if they entertained a reasonable doubt on the evidence as a whole.  Thus, in attempting to determine the effect of the error, one must bear firmly in mind that the question is whether, even had proper instructions been given, there is no reasonable possibility that the jury would have had a reasonable doubt about the respondent’s guilt.

IV.    Analysis of the Crown Submissions

[77]       Demonstrating that there is no reasonable possibility of a jury having a reasonable doubt in the face of conflicting evidence is no mean feat.  But that is what the Crown must do to succeed on this appeal.  It attempts to discharge this burden by making five main points.  In my respectful view, they do not persuade.

[78]       First, the Crown says, in effect, that if proper instructions had been given, they would have been more harmful to the defence than was the omission of the instructions which constitute the error.  If this were accepted, it would be concluded that the omission was harmless because proper instructions would have been even less favourable to the defence.

[79]       Respectfully, this is no answer to the judge’s failure to tell the jury to ignore Det. Sgt. Nealon’s opinion that the respondent was guilty. The Crown concedes that one aspect of proper instructions in these circumstances should have brought it home to the jury that the Detectice Sargeant’s opinion that he arrested the guilty party was not evidence of anything and must be disregarded.  This instruction would not have undercut the defence in any respect or been less favourable to the defence than was its omission.

[80]       Next the Crown says that the officer’s opinion testimony was harmless because the jury would have assumed in any event that he thought the accused was guilty.  This argument, in my respectful view, is contrary to long-settled, basic legal principles and in fact underlines the need for the omitted instruction.

[81]       The Crown position in my view overlooks a good deal of learning about the dangers of evidence put in the form of opinions.  As LeBel J. points out in his reasons at para. 39, the officer’s “statement of his opinion of the respondent’s guilt was unwarranted and clearly foreclosed by the jurisprudence, due to the danger of the jury uncritically accepting the witness’s opinion without drawing their own conclusions about the evidence”.  This view is supported, among many authorities, by what Major J. said in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275:

A basic tenet of our law is that the usual witness may not give opinion evidence, but testify only to facts within his knowledge, observation and experience.  This is a commendable principle since it is the task of the fact finder, whether a jury or judge alone, to decide what secondary inferences are to be drawn from the facts proved. [para. 49]

[82]       It is worth remembering that there are at least three dangers in receiving opinion evidence of the sort the officer gave in this case.  First, it usurped the function of the jury by drawing critical inferences — a conclusion about the respondent’s guilt — from the facts known to the witness.  Second, it obscured the factual basis for the conclusions reached. In this case, it was at best unclear and at worst a likely inference that the officer’s opinion was based on evidence other than that which had been admitted before the jury.  Finally, there was a danger that, given the long experience and excellent career history of Det. Sgt. Nealon, the jury would attach undue weight to his opinion: see, for example, Graat v. The Queen, [1982] 2 S.C.R. 819, at pp. 839-40. 

[83]       This final point is particularly important in this case. There was a real risk that  jurors would put more credence in the improperly offered opinion simply because it came from an experienced and respected police officer.  In other words, there is a legitimate concern that the “jury might forego independent analysis of the facts and bow too readily to the opinion of an expert or other influential witness”: McCormick on Evidence (6th ed. 2006), vol. 1, at § 12. While of course this opinion was not presented as expert opinion evidence, the dangers noted by Major J. in D.D. at para. 53 in that context were also present here:

The primary danger arising from the admission of any opinion evidence is that the province of the jury might be usurped by that of the witness.  This danger is especially prevalent in cases of expert opinion evidence.  Faced with an expert’s impressive credentials . . ., jurors are more likely to abdicate their role as fact‑finders and simply attorn to the opinion of the expert in their desire to reach a just result.

[84]       As underscored by Sharpe J.A., at the time of the investigation, Det. Sgt. Nealon was a 19‑year veteran of the Toronto Police Service.  He led the investigation with Det. Morton.  Detective Sergeant Nealon testified after all but one of the other police officers and immediately before Kong.  He was exempted from the order excluding witnesses and, for most of the trial, he sat with the Crown at the counsel table.  His special role in the prosecution and his testimony about the thoroughness of the investigation and how he often worked overtime on this case would have contributed to his credibility before the jury.  The jury may well have attached special importance to his evidence.  That would also serve to bolster the credibility of the victim, Mr. Kong, and to undermine the credibility of the respondent. 

[85]       In short, the risks of the jury attaching undue weight to the officer’s opinion have long been recognized in the jurisprudence and, on the facts of this case, there was at the very least a reasonable possibility of these risks materializing, absent proper limiting instructions.

[86]       Moreover, the Crown’s assertion that the jury likely assumed that the investigating officer thought the respondent was guilty serves to underline the need for the limiting instructions rather than to provide an excuse for their omission.  The opinions of the police on the question of an accused’s guilt have no place in the jury’s deliberations.  The proposition that the jury would assume the police think that the accused is guilty underlines the need for a limiting instruction, particularly where the police view is presented as opinion evidence.

[87]       It is impossible, in my view, to determine the impact of the Detective Sergeant’s opinion that the respondent was guilty. And this is all the more true where, as here, the respondent testified, denied his involvement and called evidence in his defence.  It is also impossible to know what impact the required instruction to entirely disregard the officer’s opinion would have had on the jury.  Respectfully, it cannot be said that there is no reasonable possibility that the absence of the instruction affected the outcome of the trial.

[88]       Detective Sergeant Nealon’s testimony in effect conveyed to the jury that he, an experienced and respected police officer, believed Mr. Kong over the respondent. We cannot, in my respectful view, conclude that there is no reasonable possibility that the omitted instructions had no impact on the ultimate determination of guilt.

[89]       As a third point, the Crown submits that the concerns of the majority of the Court of Appeal about the officer’s evidence being based on material not before the jury were misplaced.  The argument is that the jury would have recognized that the officer was simply referring to matters that were in evidence and would not have thought that his opinion was based on material not otherwise before them.  Respectfully, I cannot accept this submission.

[90]       Detective Sergeant Nealon referred in his evidence to several sources of information that were not otherwise before the jury.  He testified, for example, that he reviewed the notebooks of the officers involved up to the point that he took over the investigation.  Some of these officers were named, others were not and none of them testified at trial.  He testified about his interviews with Mr. Kong’s three sisters, none of whom testified.  His evidence was that he did this to “get some information about [Mr. Kong] and his background, and any information . . . with respect to [the] offence.”  He referred to his conversation with an OPP intelligence officer at the casino whose information “more or less corroborated what the victim was telling [him]”.  He referred to interviews with eight unnamed casino employees and to a videotaped statement he took from Mr. Kong.  None of this material was otherwise before the jury. His testimony also included references to a “lot of information”, and his opinion that the respondent was the guilty party was based on all of his investigation.  His evidence gave the impression that all of the information he received from all of these sources corroborated Mr. Kong’s version of the events.  The re-examination evidence, which I set out earlier, demonstrates the likelihood that the jury would have understood the officer’s opinion to be based on everything he had done, including many things that were not in the evidence. His evidence was, in effect, that the officer’s opinion that the respondent was guilty was based, as he put it, on “[his] investigation . . . and information that [he] received”.

[91]       I respectfully agree with the majority of the Court of Appeal that the officer’s testimony created the impression that his personal opinion about the respondent’s guilt was based in part on a body of information not disclosed to the jury. I would add that some of this information (such as from the OPP intelligence officer) was expressly represented to the jury as corroborating Mr. Kong’s version of events while it was implicit in the officer’s testimony that other information also had this effect, as for example, the interviews with the three sisters and the eight casino employees.

[92]       I conclude that the jury would have had the impression that Det. Sgt. Nealon’s opinion about the respondent’s guilt and about the credibility of Mr. Kong 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 his opinion should be given no weight.

[93]       Fourth, the Crown submits that the impact of the failure to give the proper limiting instructions was mitigated in this case by other instructions given by the judge.  These instructions consist of a single, brief mid-trial instruction given during Det. Sgt. Nealon’s testimony in relation to his use of Det. Morton’s notes and several instructions that the jury must decide the case on the evidence it saw and heard in the courtroom. 

[94]       These instructions, in my view, did not mitigate the impact of the error in this case at all.  Detective Sergeant Nealon’s evidence was of course evidence that the jury saw and heard in the courtroom and fell within the judge’s repeated admonition to the jury to consider all of the evidence in reaching their decision.

[95]       Finally, the Crown argues that the failure of defence counsel to object should persuade us that the omission of the instruction had no impact on the outcome of the case. I do not accept this view.

[96]       The failure to object is, of course, a relevant consideration in assessing the importance of a legal error as seen in the concrete reality of the trial.  Thus, as this Court has held, defence counsel’s failure to comment at the trial is worthy of consideration: R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 38; see also R. v. Arcangioli, [1994] 1 S.C.R. 129, and R. v. Chambers, [1990] 2 S.C.R. 1293.  The failure to object may inform a court’s conclusion on both the overall accuracy of an instruction and the seriousness and likely impact of the error.  It is, however, only one consideration.

[97]       The omission of the limiting instructions was a mistake, and there is no plausible argument, in my view, that the substance of the required instructions was addressed in other aspects of the charge.  The failure to object, therefore, is of no assistance in determining the overall accuracy of the judge’s directions.  All other considerations, in my respectful view, support the Crown’s concession that this error was serious and, in my view, there are strong reasons to think that the omission had a direct impact on the critical issue of the credibility of the respondent and Mr. Kong.  So it becomes a question of whether the failure to object, on its own, should persuade us that there is no reasonable possibility that the error had any impact. 

[98]       In my respectful view, it should not.  The inferences to the contrary are too compelling to allow this one factor to tip the balance.

[99]       Of course, appellate courts will not look favourably upon counsel who deliberately fail to object to the charge for tactical reasons.  However, there is nothing in the record here to indicate that the failure to object was a deliberate strategy.  Like Sharpe J.A., for the majority in the Court of Appeal, and LeBel J. in his reasons in this Court,  I do not think that the failure to object in this case may reasonably be viewed as a tactical decision by the defence.  The trial judge had already cautioned the jury that they were not to use speculation to accept the defence’s loanshark theory.  A limiting instruction would not have further undermined the position of the defence.  And a limiting instruction about the officer’s opinion would not have in any respect undermined the defence. 

[100]   In my opinion, defence counsel’s failure to object at trial in this case 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.

[101]   To conclude, the omission of limiting instructions about the officer’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 respondent but of Mr. Kong.  This 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.  Like the majority of the Court of Appeal, I would conclude that the Crown has not discharged its heavy onus of showing that there is no reasonable possibility that the omitted instruction would have made no difference to the outcome of the case.

V.    Conclusion

[102]   I would dismiss the appeal. 

Appeal allowed, Binnie, Fish, Charron and Cromwell JJ. dissenting.

Solicitor for the appellant:  Attorney General of Ontario, Toronto.

Solicitor for the respondent:  Joseph S. Wilkinson, Toronto.