R. v. Illes, 2008 SCC 57, [2008] 3 SCR 134

                                                 SUPREME COURT OF CANADA

Between:

Mihaly Illes

Appellant

and

Her Majesty The Queen

Respondent

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ.

______________________________

R. v. Illes, [2008] 3 S.C.R. 134, 2008 SCC 57

Mihaly Illes                                                                                                                        Appellant

v.

Her Majesty The Queen                                                                                                 Respondent

Indexed as:  R. v. Illes

Neutral citation:  2008 SCC 57.

File No.:  31954.

2008:  April 22; 2008:  October 24.

Present:  McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron and Rothstein JJ.

on appeal from the court of appeal for british columbia

Criminal law — Charge to jury — Duncan instruction — Accused tried for first degree murder — Trial judge charging jury that law presumes any incriminating part of accused’s statement likely true, while exculpatory statements carry less weight — Whether direction improper — If so, whether new trial should be ordered.

Criminal law — Evidence — Crown’s failure to disclose — Whether new trial appropriate remedy.

The accused was charged with first degree murder.  The victim was shot in a van and, at the time, the only occupants of the van were three drug traffickers:  the victim, the accused and M.  At trial, M testified that the accused was the shooter.  The accused did not testify, but took the position that M was the killer.  O, a friend of the accused’s then girlfriend, testified that the accused put a bucket with the victim’s severed head in her garage for a day before moving it to another location.  The accused told O that he had shot the victim because he was taking some of the cocaine from deliveries to feed his own habit.  In his account of the events, M denied ever having seen the bucket at his own apartment, but admitted his involvement in disposing of the remains.  The accused was arrested based on information O gave to the police.  While in custody, the accused wrote several letters to his friends.  In his letters, he proclaimed his innocence, implicating at first O, and later M, as the killer.  Although admitting that the letters were a ruse and were intended to be discovered by the police, the defence argued that the expressions of innocence were nonetheless truthful.  The trial judge told the jury that “the statements . . . in the letters . . . contain both admissions, as well [as] excuses which tend to exonerate” the accused and that “[i]n the ordinary course of human behaviour it often occurs that statements of an incriminating nature, such as admissions or confessions, are likely to be true” while “excuses for one’s own behaviour . . . do not necessarily . . . carry the same persuasive weight”.  She also added that “the law presumes any incriminating part of the accused’s statement is likely to be true, otherwise why would an accused say so?”  The jury found the accused guilty.  After the trial, the accused became aware that a confidential informant had told the police during the investigation that shortly after the murder, he met with M, the accused and others at M’s apartment, and that there was a bucket on the balcony with a human head in it.  The police did not provide this information to the Crown until it was requested by the defence after the trial.  The majority of the Court of Appeal upheld the accused’s conviction and dismissed his application to introduce fresh evidence.  The accused appealed to this Court as of right on two grounds:  the trial judge improperly charged the jury and the Crown breached its constitutional duties by failing to disclose relevant evidence.

Held (Deschamps, Charron and Rothstein JJ. dissenting):  The appeal should be allowed and a new trial ordered.

Per McLachlin C.J. and Binnie, LeBel and Fish JJ.:  The trial judge’s instruction (known as a “Duncan instruction”) was improper and the Crown violated its constitutional obligations of disclosure.  Neither error can safely be characterized as harmless and either alone warrants a new trial. [3]

While none of the statements contained in the letters amounted to confessions or admissions, the trial judge’s Duncan instruction specifically referred to admissions and implicitly suggested that some of the statements were incriminating.  The jury may well have understood the instructions to require what the law was said to presume — that more weight should be given to the incriminating inferences that could be drawn from the letters than to the facially exculpatory statements they contained.  The potential for jury confusion warrants a new trial.  The jury deliberated over four days and the trial judge, after receiving a note indicating that they were split on their decision, re‑charged the jury with a portion of the instructions containing the impugned language on the very day that they finally rendered the verdict.  The letters were an important part of the Crown’s case and the evidence at trial was not so overwhelming that the jury would inevitably have reached the same verdict if properly directed in law. [13] [15] [17] [21‑23]

With respect to the Crown’s failure to disclose, the fresh evidence concerning the head in the bucket was significant because it places M and the bucket together at the same time in the apartment and suggests that the head was actively displayed at that time, seriously undercutting M’s core claim that he had no contact at all with the victim’s severed head before the day he helped to dispose of it.  When added to the overall picture of the evidence, there is a reasonable possibility that the informant’s evidence could have created a reasonable doubt in the jury’s mind.  Most importantly, it could have tended to show that M — the only other possible shooter — was continuing to lie at trial and that key parts of his testimony were fabrications intended to frame the accused.  There is also a reasonable possibility that the non‑disclosure affected the overall fairness of the trial process.  The non‑disclosure deprived the defence of the opportunity to impeach M on additional important grounds, and may have affected defence counsel’s trial strategy. [24] [28‑29] [31] [33] [38]

Per Deschamps, Charron and Rothstein JJ. (dissenting):  It is dangerous for a trial judge to instruct the jury in a manner that suggests that inculpatory and exculpatory statements ought to be weighed differently.  The issue of whether a Duncan‑type instruction constitutes misdirection in any given case will depend entirely on the particular words used and their context.  Where, as here, the instruction is couched in terms of a legal presumption, the prejudicial effect may be difficult to overcome.  However, in the circumstances of this case, this unfortunate instruction, although given in error, could not realistically have impacted on the verdict.  The letters contained no admissions in respect of which the impugned instruction could be applied.  The Crown did not rely on anything in the letters as an admission against the accused’s interest.  It relied, rather, on the fact that the accused, by his letters, presented an ever‑changing story, tried to influence witnesses and misled the police in their investigation, and blamed others for his actions, arguing that these were not the actions of an innocent man.  This was a permissible inference to be drawn from the totality of the evidence and one which is not in any way affected by the unfortunate use of the presumptive language in the judge’s instructions.  Nothing in the charge would have prevented the jury from making appropriate use of the protestations of innocence contained in the letters and relied upon by the defence.  The trial judge emphasized to the jury that it was up to them to decide how much weight to give to the statements, and that they could accept all of them, some of them, or none of them.  She also repeatedly told the jury that the accused was entitled to the benefit of any reasonable doubt raised by the evidence, including a reasonable doubt raised by the exculpatory statements in the letters. [57‑60]

With respect to the Crown’s failure to disclose all relevant material, it is appropriate to order a new trial when the accused demonstrates that there is a reasonable possibility that the non‑disclosure affected either (1) the outcome of the trial, or (2) the overall fairness of the trial process.  Here, the accused cannot meet the first branch of the test.  The proposed evidence that the bucket was on M’s balcony at one point in time after the murder does not assist in determining whether M or the accused actually killed the victim.  It is also consistent with the undisputed fact that M was involved in helping to bury the victim’s remains.  Therefore, on its face, the fresh evidence could not realistically have affected the outcome of the trial.  The question whether the evidence could nonetheless have impacted on the verdict can best be answered on the second branch of the test by considering what use could possibly have been made by the defence of the undisclosed information.  In cross‑examination, M agreed that the bucket could have been on his balcony without his knowledge.  It is unrealistic for the accused to suggest that M’s testimony would have been any different if confronted with the undisclosed statement at trial and, in turn, that this additional item of evidence would have added anything of significance.  The theory that M might have been the perpetrator was advanced at trial.  The undisclosed statement would have added nothing significant to this argument.  Further, the defence knew that the author of the undisclosed statement had been present at the apartment, but failed to have him testify, thereby suggesting that he had no helpful evidence to offer. [62] [65‑66] [68‑69]

Cases Cited

By LeBel and Fish JJ.

Referred to:  R. v. Trochym, [2007] 1 S.C.R. 239, 2007 SCC 6; R. v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86; R. v. Charlebois, [2000] 2 S.C.R. 674, 2000 SCC 53; R. v. S. (P.L.), [1991] 1 S.C.R. 909; R. v. Dixon, [1998] 1 S.C.R. 244; R. v. Taillefer, [2003] 3 S.C.R. 307, 2003 SCC 70; R. v. Skinner, [1998] 1 S.C.R. 298.

By Charron J. (dissenting)

R. v. Duncan (1981), 73 Cr. App. R. 359; R. v. David (2006), 213 C.C.C. (3d) 64, 2006 BCCA 412; Vetrovec v. The Queen, [1982] 1 S.C.R. 811; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Rojas, [2008] 3 S.C.R. 111, 2008 SCC 56; R. v. Dixon, [1998] 1 S.C.R. 244; R. v. Chaplin, [1995] 1 S.C.R. 727; R. v. Taillefer, [2003] 3 S.C.R. 307, 2003 SCC 70; R. v. Jack (1992), 70 C.C.C. (3d) 67; R. v. T. (L.A.) (1993), 14 O.R. (3d) 378; R. v. Gagné (1998), 131 C.C.C. (3d) 444; Driskell v. Dangerfield, [2008] 6 W.W.R. 615, 2008 MBCA 60.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , s. 24(1) .

Criminal Code , R.S.C. 1985, c. C‑46 , ss. 686(1) (a)(ii), (b)(iii), (2)(b).

APPEAL from a judgment of the British Columbia Court of Appeal (Rowles, Donald and Chiasson JJ.A.) (2007), 237 B.C.A.C. 231, 392 W.A.C. 231, 217 C.C.C. (3d) 529, 46 C.R. (6th) 1, [2007] B.C.J. No. 364 (QL), 2007 CarswellBC 391, 2007 BCCA 125, upholding the conviction of the accused for first degree murder.  Appeal allowed, Deschamps, Charron and Rothstein JJ. dissenting.

David M. Layton, for the appellant.

W. J. Scott Bell, for the respondent.

The judgment of McLachlin C.J. and Binnie, LeBel and Fish JJ. was delivered by

LeBel and Fish JJ. —                 

I.  Overview

[1]                              With respect for the contrary opinion of Justice Charron, we would allow the appeal and order a new trial.

[2]                              The appellant seeks a new trial on two grounds.  First, that the trial judge improperly charged the jury that “the law presumes any incriminating part of the accused’s statement is likely to be true”, while exculpatory statements or “excuses” carry less weight.  Second, that the Crown breached its constitutional duties by failing to disclose relevant evidence before — and even after — the trial.

[3]                              On the first ground, we agree with Justice Charron that the judge’s direction, known as a “Duncan instruction”, is indeed improper and, accordingly, should not have been included in the judge’s charge.  As to the second, we agree that the Crown violated its Charter  obligations of disclosure.  In short, we agree with Justice Charron that both errors alleged by the appellant were in fact committed; unlike our colleague, however, we find that neither error can safely be characterized as “harmless”.  On the contrary, we believe that either error would alone warrant a new trial and we would in any event, on account of their combined effect, have reached the same conclusion.

[4]                              We will first consider the improper jury instruction and then turn to the Crown’s breach of its constitutional duty of disclosure.  Except as otherwise noted, we accept Justice Charron’s summary of the facts.  Having reviewed the record and concluded that a new trial is necessary, however, we will relate those additional facts that are necessary to support this result. 

II.  The Improper Jury Instruction

[5]                              In July 2001, Melanie Ovalle became the first significant witness to cooperate with the police investigation into the victim’s murder some three months earlier.  On November 2, 2001, Derrick Madinsky, the only person other than the appellant present at the time of the victim’s death, was arrested for the murder.  He was soon released without charge and on November 8, 2001, the police arrested and charged the appellant.  Later in November, Mr. Madinsky provided a “will say” statement to the police giving his account of events, subject to the proviso that neither the statement nor evidence obtained as a result thereof could be used against him.  By the end of February 2002, he had formally agreed to be a Crown witness in exchange for an immunity and witness protection arrangement.

[6]                              The Crown’s case rested largely on the testimony of Ms. Ovalle, Mr. Madinsky, and Garry Favell, another drug associate of the appellant, in addition to six letters that the accused wrote while in jail following his arrest.  The incorrect Duncan instruction at issue here only applied to the contents of these letters.

[7]                              The accused wrote the first two letters, which are known in the record as the Madinsky and Prince George letters, to his associates after he learned that Ms. Ovalle was cooperating with the police but before finding out about Madinsky’s immunity arrangement with the Crown.  In each of the two letters the accused makes only exculpatory statements.  For example, the letters state that Ms. Ovalle is mentally ill and suggests that her account of events, which tended to incriminate the accused, was motivated by jealousy over the amount of time he was spending with Lee-Anne Price, her closest friend. 

[8]                              The letters also claim ignorance of the victim’s fate, speculating that the victim may merely be in hiding, or that he may have been killed by Ms. Ovalle after a lovers’ quarrel.  One letter hypothesizes that blood matching the victim’s, found in Mr. Madinsky’s van, was either not the victim’s at all or that “[the victim] and his boyfriend got into a fistfight in the van and got a bloody nose”. 

[9]                              Finally, the letters urge the accused’s associates “not to confess to anything you haven’t done”; state that “nothing ever happened, so anything anybody makes up is a lie”; accuse the police of using “kgb police trick[s]”; and warn that the police “will try everything to try to build a case, to try to fabricate evidence” (emphasis in original).  While many of these statements are implausible in the context of the other evidence at trial, they are all exculpatory statements on their face.

[10]                          The next four letters — the “Kent letters” — also contain no admissions or confessions, but only statements that, if accepted as factually accurate, would tend to exonerate the accused.  Two of the letters — written on yellow paper — provide instructions from the accused to Ms. Price, who was by then the accused’s wife, and to her uncle Gordon Fleming.  These yellow letters detail a relatively elaborate scheme intended to mislead the police into believing that the other two Kent letters — written on white paper — had been written by the accused several months earlier. 

[11]                          The yellow letters are explicit as to the purpose of this ruse: “There is our defence. The [white] letter says it all.  Who killed, whom, why . . . . It will be like an ace in our pocket.  This could decide the case.  Make it, or brake [sic] it.”

[12]                          The two white Kent letters were written after the appellant learned of Mr. Madinsky’s status as a Crown witness, but were backdated so as to appear to have been written months earlier.  They point the finger at Mr. Madinsky acting at the urging of Mr. Favell.  The appellant claims in these letters that Mr. Madinsky and Mr. Favell are colluding to frame him.  In one of the white letters, addressed to Mr. Madinsky, the appellant describes himself as having “put my ass on the line for you, to help you clean up your mess,” in apparent reference to the victim’s murder.  He suggests that he has no choice but to take the fall for Madinsky and Favell because “[r]otting in jail is still better than a couple of extra nostrils in the back of my head.”

[13]                          As we have already observed — and both parties agree — none of the statements contained in these letters amount, in themselves, to confessions or admissions.  The Crown thus relied on the letters not as admissions, but as post-offence conduct indicative of the accused’s guilt.

[14]                          The defence, on the other hand, argued that the statements in the letters that tended, on their face, to exonerate the accused and incriminate Madinsky were in fact true. The defence further argued that any fabricated statements in the letters were not evidence of guilt, but were rather the conduct of an innocent man, distrustful of police, who was attempting to exonerate himself of the murder charge while not betraying his involvement in other criminal activity.

[15]                          That the letters, on their face, contain only exculpatory statements sits uncomfortably with the trial judge’s Duncan instruction in her jury charge, which specifically refers to admissions contained in the letters and implicitly suggests that some of the statements are incriminating:

In this trial, the statements contained in the letters allegedly written by the accused contain both admissions, as well [sic] excuses which tend to exonerate him.  In the ordinary course of human behaviour it often occurs that statements of an incriminating nature, such as admissions or confessions, are likely to be true, otherwise why say them.

On the other hand, excuses for one’s own behaviour are -- do not necessarily  . . . carry the same persuasive weight. . . .

. . .

If you find it reasonable to believe that the part of Mr. Illes’ statements . . . where he denied committing the offence by offering an innocent explanation, then the statements may raise a reasonable doubt in your mind as to his guilt.  Even if you do not believe that . . . part of Mr. Illes’ statements denying he committed the offence by offering an innocent explanation, it may still raise a reasonable doubt in your mind as to his guilt.

On the other hand, any portion of the statements that tend to incriminate Mr. Illes in the commission of the offence only assist the Crown’s case if you are convinced that portion is true beyond a reasonable doubt.  This is because the law presumes any incriminating part of the accused’s statement is likely to be true, otherwise why would an accused say so.

[16]                          As we understand her reasons, Justice Charron considers that these instructions could only have affected the jury’s assessment of explicit admissions or confessions contained in the letters.  Because the letters contained no such admissions, and because the Crown relied on the contents of the letters only as post-offence conduct consistent with guilt, she finds the impugned instructions harmless.

[17]                          With respect, we disagree.  Faced with a discrepancy between letters that contain no facially incriminating statements and a charge that gives explicit directions relating to “admissions”, “statements of an incriminating nature”, and “statements that tend to incriminate Mr. Illes”, it seems unlikely that the jury would regard these portions of the charge as mere surplusage.  It is at least as plausible to conclude that the jury would understand the ambit of the impugned instruction to include not just “admissions” and “confessions” — of which there were none — but also statements in the letters that tend to incriminate the accused because they appear, in context, to be those of a guilty man.  Put differently, the jury may well have understood the instructions to require what the law was said to “presume” — that more weight should be given to the incriminating inferences that could be drawn from the letters than to the facially exculpatory statements they contained.

[18]                          Indeed, the impugned portions of the jury charge do not make an especially clear distinction between statements that are incriminating on their face (e.g. admissions or confessions) and statements that are incriminating only in context (e.g. the claim that “nothing ever happened”).  As noted above, the instruction refers not only to “admissions”, but also to “statements that tend to incriminate” and “statements of an incriminating nature”.  The latter two formulations could well have been understood by the jury to include statements that tended to incriminate when read in context.

[19]                          The potential for jury confusion on the scope of the Duncan instruction is even more apparent when one appreciates that a single statement can be exculpatory on its face, but inculpatory when regarded in light of other evidence.  Thus, for example, the claim that “nothing ever happened, so anything anybody makes up is a lie” is clearly exculpatory if accepted as literally true.  But when read with other statements in the same letter, such as speculation that Ms. Ovalle may have killed the victim or that the victim was in hiding, the statement might appear disingenuous.  When one considers that the statement was addressed to Mr. Madinsky, the only other person who could have killed the victim, the claim that “nothing ever happened” takes on a decidedly conspiratorial valence.  While it may be possible to parse the jury instructions in such a way that it does not constitute a direction to favour these sorts of incriminating inferences over the exculpatory plain meaning of a statement, it remains entirely possible that the jury did not do so, and perhaps unreasonable to expect that it did.

[20]                          As suggested by Rowles J.A. in her dissenting reasons below ((2007), 237 B.C.A.C. 231, 2007 BCCA 125), when the jury charge is interpreted broadly in the way that we have described, it would appear to instruct the jury to discount the defence theory invoking the truth of some of the facially exculpatory statements in the letters, and to give greater weight to the Crown’s interpretation, which depended on the incriminating inferences that could be drawn from the letters.  This prejudice to the defence is particularly acute when, as here, the instruction was couched in terms of a legal presumption.  Thus, when the judge stated that “the law presumes any incriminating part of the accused’s statement is likely to be true”, the jury may well have understood this to mean that the incriminating inferences urged by the Crown were to be favoured as a matter of law. 

[21]                          The question, then, is whether this potential for jury confusion warrants a new trial.  It is well established that an improper jury instruction constitutes an error of law within the meaning of s. 686(1) (a)(ii) of the Criminal Code , R.S.C. 1985, c. C-46 , and that a new trial may be granted as a remedy under s. 686(2)(b) unless the harmless error proviso of s. 686(1)(b)(iii) applies.  The Court has repeatedly held that the proviso can only be invoked with respect to “errors of a minor nature having no impact on the verdict” or “serious errors which would justify a new trial, but for the fact that the evidence adduced was seen as so overwhelming that the reviewing court concludes that there was no substantial wrong or miscarriage of justice” (R. v. Trochym, [2007] 1 S.C.R. 239, 2007 SCC 6, at para. 81 (Deschamps J., for the majority), quoting R. v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86, at para. 26 (Arbour J., for the majority)).  More succinctly, “the proviso should only be applied where ‘the evidence is so overwhelming that a trier of fact would inevitably convict”’ (R. v. Charlebois, [2000] 2 S.C.R. 674, 2000 SCC 53, at para. 11 (Bastarache J., for the majority), quoting R. v. S. (P.L.), [1991] 1 S.C.R. 909, at p. 916 (Sopinka J., for the majority)).

[22]                          We cannot, of course, peer into the jury room.  The jury’s deliberations remain shrouded in secrecy.  It is nonetheless worth noting that the jury deliberated over four days; that the jurors indicated in a note to the judge on the evening of the first full day of deliberations that they were split on their decision; and that the jury was re‑charged with a portion of the instructions containing the impugned language on the very day that it finally rendered the verdict.  Furthermore, given that the three principal witnesses for the Crown were all subject to strong Vetrovec instructions and that the accused did not testify, the letters, written by the accused himself, were a particularly important part of the Crown’s case.

[23]                          In light of these considerations and those explained above, we cannot agree that the evidence in this case was so overwhelming that the jury would inevitably have reached the same verdict if properly directed in law.  It is at least plausible, perhaps even likely, that the jury was influenced by the impugned Duncan instruction in drawing inculpatory inferences from the letters.  Because the letters were a principal element of the Crown’s case, it cannot safely be said that the impugned instruction constituted harmless error.

III.  The Crown’s Failure to Disclose

[24]                          With respect to the fresh evidence not available to the defence at trial due to the Crown’s failure to disclose, a new trial is the appropriate remedy under s. 24(1)  of the Canadian Charter of Rights and Freedoms  if the accused can show that his right to make full answer and defence was thereby violated.  In order to discharge this burden, the accused can show either “that there is a reasonable possibility the non-disclosure affected the outcome at trial” or that it affected “the overall fairness of the trial process”  (R. v. Dixon, [1998] 1 S.C.R. 244, at para. 34 (emphasis in original)).

[25]                          With respect to the first prong of the Dixon test, it is important to note that the issue here is not whether the undisclosed evidence would have made a difference to the trial outcome, but rather whether it could have made a difference.  More precisely, the issue the appellate court must determine is whether there is a reasonable possibility that the additional evidence could have created a reasonable doubt in the jury’s mind.  See R. v. Taillefer, [2003] 3 S.C.R. 307, 2003 SCC 70, at para. 82.

[26]                          Our unanimous decision in Taillefer directs the court “not to examine the undisclosed evidence, item by item, to assess its probative value”, but rather “to reconstruct the overall picture of the evidence that would have been presented to the jury had it not been for the Crown’s failure to disclose the relevant evidence.  Whether there is a reasonable possibility that the verdict might have been different must be determined having regard to the evidence in its entirety” (para. 82).

[27]                          With respect to the second prong of the Dixon test, an appellant need only establish a reasonable possibility that the overall fairness of the trial process was impaired.  This burden can be discharged by showing, for example, that the undisclosed evidence could have been used to impeach the credibility of a prosecution witness (see Taillefer, at para. 84), or could have assisted the defence in its pre-trial investigations and preparations, or in its tactical decisions at trial (see R. v. Skinner, [1998] 1 S.C.R. 298, at para. 12 (Cory J., for the Court)).

[28]                          The fresh evidence in issue here relates to an interview between the police and Michael Maze.  According to the two withheld police accounts of the interview, Mr. Maze was present at Mr. Madinsky’s apartment at some point in the days following the murder.  While at the apartment, he was shown the head of the victim stored in a white “Home Depot” bucket.  One account of the meeting adds that Mr. Maze saw the bucket located on the balcony and that Mr. Madinsky and Mr. Illes were among the people at the apartment at the time.

[29]                          Mr. Maze’s evidence is significant because Mr. Madinsky claimed that he had no contact with the bucket until the day he travelled with the accused and Mr. Favell to dispose of it.  More to the point, he consistently maintained that the bucket was never  to his knowledge inside his apartment or on the balcony. 

[30]                          His various accounts may charitably be described as a version in progress.  For example, he initially stated that the blinds in his apartment looking out onto the deck “are open, you can see everything” (emphasis added).  Later he said the opposite:  “I like my blinds closed all the time” (emphasis added).  But one thing is certain: At no time did Mr. Madinsky concede that he knew the Home Depot bucket and its gruesome contents were anywhere in his apartment or on his balcony.

[31]                          We disagree with Justice Charron’s view that the Maze evidence would not have added anything of significance (para. 69).  Not only does Mr. Maze’s evidence place Mr. Madinsky and the bucket together at the same time in the apartment, but it suggests that the head was actively displayed at that time.  Given the apparently small size of the apartment, evidence along these lines may have seriously undercut the credibility of Mr. Madinsky’s core claim that he had no contact at all with the victim’s severed head or the bucket in which it was stored — at his apartment or anywhere else — before the day he helped to dispose of it.

[32]                          That said, as Justice Charron correctly notes, details about the bucket’s movements do not bear directly on the question of who shot the victim (para. 66).  Furthermore, the defence was able to impeach Mr. Madinsky’s credibility on several other grounds.  Indeed, Mr. Madinsky admitted at trial to having perjured himself on the details of certain drug transactions. 

[33]                          Nevertheless, when added to the overall picture of the evidence, there is a reasonable possibility that the Maze evidence could have created a reasonable doubt in the jury’s mind.  Most importantly, it could have tended to show that Mr. Madinsky — the only other possible shooter — was continuing to lie at trial.  Mr. Madinsky claimed that his prior perjured statements were made in order to avoid reprisals from drug associates.  The Maze evidence would have undermined this explanation by showing Mr. Madinsky to be lying about the circumstances of Dowling’s murder, not just prior drug transactions.  Furthermore, the defence could have used the inconsistencies between the two accounts as evidence tending to support its theory that key parts of Madinsky’s testimony were fabrications intended to frame the accused for a murder that he himself had committed.

[34]                           It is impossible to know whether any use of the Maze evidence would actually have changed the jury’s verdict.  Fortunately, we need not answer that question.  As noted above, under the first prong of the Dixon test, the appellant must only establish a reasonable possibility that the use of this missing evidence at trial could have raised a reasonable doubt in the jury’s mind.  In light of the considerations just recited, we feel bound to conclude that such a possibility did indeed exist and that the accused is therefore entitled to a new trial.

[35]                          Even if the first prong of the Dixon test were not decisive, the same disposition is even more clearly warranted under the second prong of that governing test, which requires a new trial if there is a reasonable possibility that the overall fairness of the trial process was jeopardized.  In this case, the non-disclosure of the Maze evidence prevented the defence from mounting a more effective attack on Mr. Madinsky’s testimony at trial, as we explained at paras. 27-32.

[36]                          Furthermore, the non-disclosure may have affected the defence’s strategic decisions at trial, another way in which the overall fairness of the trial could have been jeopardized.  In Skinner, this Court held that a new trial was warranted where there was a reasonable possibility that disclosure of a withheld statement could have affected the defence’s decision not to call evidence.  The situation is much the same in this case.  The defence did not call any witnesses.  Had the withheld evidence been available, it may well have chosen to call Mr. Maze to impeach Mr. Madinsky or for other reasons.

[37]                          Unlike Justice Charron, we are not persuaded “that the defence’s failure to seek [Maze] out as a witness suggests that he had no helpful evidence to offer” (para. 69).  Without the benefit of the undisclosed evidence, the defence was in no position to make the informed decision to which it was entitled by law.  In this case, the failure of the defence to approach Mr. Maze is entirely understandable.  Without the undisclosed evidence, the defence had no reason to expect that Maze, a drug trafficker, would testify  truthfully as to the circumstances in which he saw the severed head in the bucket.  Furthermore, the defence and the Crown would both know from the disclosure that Mr. Maze had given some of the relevant evidence as a Crown witness in the R. v. Polo case (see B.C. Court of Appeal judgment, at paras. 106-7).  It seems reasonable to expect that this could well have tempered any concerns the defence might have had that he would become an easy target for impeachment, in view of his criminal past.  Defence counsel’s failure to seek him out may well have reflected these considerations — both of which would have been mitigated had the withheld evidence been disclosed — rather than a determination that Mr. Maze’s evidence would have been unhelpful.

[38]                          Because there is a reasonable possibility that the absence of Mr. Maze’s testimony (i) deprived the defence of the opportunity to impeach Mr. Madinsky on additional important grounds, and (ii) may have affected the defence counsel’s trial strategy, we have concluded that the non-disclosure affected the overall fairness of the trial and that a new trial is warranted under this prong of the Dixon test as well.

IV.   Conclusion

[39]                          For all of these reasons, we believe, as mentioned at the outset, that the appeal should be allowed, the appellant’s conviction should be set aside, and a new trial must be had.

The reasons of Deschamps, Charron and Rothstein JJ. were delivered by 

Charron J. (dissenting) —

1.  Overview

[40]                          Following his trial by judge and jury, the appellant, Mihaly Illes, was convicted of first degree murder in respect of the death of Javan Luke Dowling.  On his appeal from conviction, he argued that the trial judge erred in several respects in her instructions to the jury.  The British Columbia Court of Appeal rejected all his complaints, save for the instruction regarding the weight which should be given to out‑of-court statements made by an accused.  The court concluded that the trial judge erred by saying that “the law presumes any incriminating part of the accused’s statement is likely to be true, otherwise why would an accused say so” (emphasis added).

[41]                          The impugned instruction, albeit without the presumptive language, is modelled on the jury charge recommended by the English Court of Appeal in R. v. Duncan (1981), 73 Cr. App. R. 359.  The Court of Appeal in the case at bar, based on its own decision in R. v. David (2006), 213 C.C.C. (3d) 64, 2006 BCCA 412, concluded that it is dangerous to instruct the jury in a manner that suggests that inculpatory and exculpatory statements ought to be weighed differently, particularly when the instruction is couched in presumptive terms.  The court was divided however on the effect of the impugned instruction in the context of Mr. Illes’s trial.  The majority concluded that the verdict would necessarily have been the same despite the error.  Rowles J.A., dissenting, was of the view that the instruction could not be regarded as a harmless error and, consequently, would have granted a new trial on that ground.

[42]                          Mr. Illes also brought an application to introduce fresh evidence before the Court of Appeal, alleging a material non-disclosure of evidence by the Crown.  The court was divided on the outcome of this application as well.  The majority accepted that the information ought to have been disclosed by the Crown but concluded that even if it had been available to the defence, it could not realistically have made a difference at trial.  The application was therefore dismissed.  Rowles J.A. disagreed.  She would have admitted the fresh evidence and ordered a new trial on that basis as well.

[43]                          Mr. Illes appeals to this Court as of right on both issues.  For reasons that follow, I would dismiss the appeal.

2.  The Facts and Proceedings Below

[44]                          The victim was shot four times in the back of the head.  Mr. Illes was charged with first degree murder in respect of his death.  The defence conceded at trial that the shooting took place in a van and that the only occupants of the van at the time of the shooting were the victim, Mr. Illes and Derrick Madinsky.  All three individuals were involved in the drug trade.  Mr. Madinsky agreed to testify for the Crown at Mr. Illes’s trial in exchange for immunity and witness protection.  Mr. Madinsky admitted that he and another drug associate, Garry Favell, disposed of the deceased’s body but testified that Mr. Illes was the shooter.  Mr. Illes did not testify but took the position at trial that Mr. Madinsky was the shooter.

[45]                          A significant feature of this case is that the victim’s head was severed, kept in a plastic bucket and moved from place to place until it was buried several days later, separate from the rest of the body.  Melanie Ovalle, a friend of Mr. Illes’s then girlfriend and later wife, testified that Mr. Illes put the bucket with the severed head in her garage for a day before moving it to another location.  When she asked why the victim was dead, Mr. Illes said he had to be dealt with because he was taking some of the cocaine from deliveries to feed his own habit.  Mr. Illes had therefore shot him.  In his account of the events, Mr. Madinsky also described the extent and nature of his own connection with the bucket containing the severed head.  In essence, he denied ever having seen the bucket at his own apartment, but admitted his involvement in disposing of the remains. His testimony on this point acquires greater significance in the context of the fresh evidence application, and I will therefore review it in more detail later in these reasons.

[46]                          Mr. Illes was arrested based on information Ms. Ovalle gave to the police. While in custody, Mr. Illes wrote several letters to his friends.  The letters were introduced in evidence by the Crown and their contents are the subject matter of the impugned jury instruction on out-of-court statements.

[47]                          In his letters, Mr. Illes proclaimed his innocence, implicating at first Ms. Ovalle and later Mr. Madinsky as the killer.  It was conceded at trial that the letters were a ruse, as they were intended to fall in the hands of the police and provide a paper defence.  This plan was revealed by one of the letters — not intended to be discovered by the police — in which Mr. Illes gave his girlfriend instructions on how to engineer the discovery of the fake letters by the police.  The Crown relied on the fabrication of the letters as post-offence conduct tending to prove guilt.  Although admitting that the letters were a ruse, the defence argued that the expressions of innocence contained in the letters were nonetheless truthful.

2.1  The Jury Instructions

[48]                          At the conclusion of the trial, the trial judge gave a strong Vetrovec warning in connection with Mr. Madinsky’s testimony (Vetrovec v. The Queen, [1982] 1 S.C.R. 811).  She explained that Mr. Madinsky was an accomplice by virtue of his role in disposing of the victim’s body, and that he had been granted immunity in exchange for testifying at Mr. Illes’s trial.  She also noted that Mr. Madinsky admitted to committing perjury at the preliminary hearing and to lying to both the police and the prosecution.  The trial judge told the jury that, given the many reasons for doubting Mr. Madinsky’s veracity as a witness, it would be dangerous to rely on his evidence in the absence of some confirmation.  Mr. Illes argued in the Court of Appeal, among other things, that the trial judge had erred by pointing out an excessive number of examples of evidence capable of supporting Mr. Madinsky’s testimony.  The court unanimously rejected this ground of appeal, and the correctness of the Vetrovec instruction is no longer in issue.  As it relates to jury instructions, the appeal before this Court is only concerned with the trial judge’s instruction to the jury on the weight they may give to the statements in Mr. Illes’s letters.

[49]                          As stated earlier, the Crown relied on the fabrication of the letters as post‑offence conduct from which guilt could be inferred.  Although the letters were admitted fabrications, the defence argued that the proclamations of innocence contained in the letters were nonetheless true.  The trial judge therefore instructed the jury on the weight to be given to the statements contained in the letters as follows:

When looking at the statements, you should also look to see if there is any evidence that appears to contradict the statements.  When you determine whether the alleged statements of Mr. Illes are true, consider the condition of Mr. Illes at the time he is alleged to have made the statements.  In this trial, the statements contained in the letters allegedly written by the accused contain both admissions, as well [sic] excuses which tend to exonerate him.  In the ordinary course of human behaviour it often occurs that statements of an incriminating nature, such as admissions or confessions, are likely to be true, otherwise why say them.

On the other hand, excuses for one’s own behaviour are ‑- do not necessarily cane ‑- sorry, do not necessarily carry the same persuasive weight.  In the letters allegedly written by Mr. Illes he says a number of things which would suggest he is innocent.  For example, in the Madinsky letter he refers to Melanie’s ‑- and I ‑- in quotes, “bullshit story and this horrible accusation.”  He suggests that Ms. Ovalle killed Mr. Dowling.  In that same letter, he emphasizes, “Nothing ever happened, so anything anybody makes up is a lie.”  In that same letter, he says that he is innocent and the truth will come out.

In the Kent letter, which is on the Crown’s ‑- which on the Crown’s theory was intended to be found by the police, and I’m referring to Tab 3C here, he says that Derrick and Garry wanted him to bite the bullet for them and that they are backstabbing him.  In the second Kent letter, which the Crown says Mr. Illes planned to be seized by the police, again, Tab 3D, the accused says that Madinsky is letting him, and in quotes, “an innocent man rot in jail for something Madinsky and his friend[s] had done.”

You will recall I told you earlier that you do not have to accept or reject everything a witness says.  The same thing applies to these statements of Mr. Illes.  You may believe all of them, or part of them, or none of them.  Please keep in mind that Mr. Illes is entitled to the benefit of any reasonable doubt you have, including a reasonable doubt about the truth of these statements or any part of them.  Part of the statements allegedly made by Mr. Illes is exculpatory in the sense that it denies that he committed the offence, or provides an innocent explanation.

If you find it reasonable to believe that the part of Mr. Illes’ statements were ‑- sorry, if you find it reasonable to believe the part of Mr. Illes’ statements where he denied committing the offence by offering an innocent explanation, then the statements may raise a reasonable doubt in your mind as to his guilt.  Even if you do not believe that that Mr. ‑- part of Mr. Illes’ statements denying he committed the offence by offering an innocent explanation, it may still raise a reasonable doubt in your mind as to his guilt.

On the other hand, any portion of the statements that tend to incriminate Mr. Illes in the commission of the offence only assist the Crown’s case if you are convinced that portion is true beyond a reasonable doubt.  This is because the law presumes any incriminating part of the accused’s statement is likely to be true, otherwise why would an accused say so.

Finally, I want to emphasize that it is up to you to decide how much weight or importance, if any, you should give to the statements, or any part of them, if you decide the statements were made and that they are true. [paras. 64-70]

(Emphasis added.)

[50]                          Counsel at trial did not object to this aspect of the trial judge’s charge.  The jury found Mr. Illes guilty of first degree murder.

[51]                          On appeal to the British Columbia Court of Appeal, Mr. Illes argued that the trial judge erred in instructing the jury that the incriminating aspects of the accused’s statements could be weighed in a way different from the excuses contained in the statements.  The court accepted this argument, stating that, although arguably correct at the time it was given, in light of the court’s later decision in David this type of instruction should no longer be given to juries.  However, while a similar instruction effectively took away the defence in David, Donald J.A., Chiasson J.A. concurring, concluded that the same could not be said in the case at bar.  The majority was of the view that:  “[r]ealistically, the appellant could derive no tangible benefit from his protestations of innocence within the context of so many obvious falsehoods” ((2007), 237 B.C.A.C. 231, 2007 BCCA 125, at para. 20).  Donald J.A. noted that defence counsel made only a passing reference to the exculpatory aspects of the letters in his final address to the jury.  Moreover, there were no inculpatory admissions in the letters upon which the presumption could operate.  Although concluding that the trial judge erred by giving the impugned instruction, the majority applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code , R.S.C. 1985, c. C-46 .

[52]                          Rowles J.A., in dissent, concluded that the trial judge’s erroneous instruction could not be cured by the proviso.  In her view, “the impugned instruction created a presumption of law that the Crown theory of guilt was correct while undermining both the defence theory and the presumption of innocence” (para. 89).  Nor was this a case, in her view, in which it could be said that “the evidence was so overwhelming that the result would inevitably have been the same had the error not been made” (para. 94).  Therefore, she would have allowed the appeal on this ground.

2.2  The Fresh Evidence Application

[53]                          Sometime after his trial, Mr. Illes became aware that a person named Michael Maze had been interviewed by two Vancouver Police Department homicide detectives during their investigation of the Dowling murder.  Mr. Maze told them that shortly after the murder, he met with Mr. Madinsky, Mr. Illes and others at Mr. Madinsky’s apartment, and that there was a bucket on the balcony with a human head in it.  The detectives did not provide this information to Crown counsel because, at the time, Mr. Maze was a confidential informant in respect of another investigation in Alberta and his identity could not be disclosed.  Further, one of the officers stated that he did not believe Mr. Maze at the time.  Although Mr. Maze ceased to be a confidential informant sometime before the trial commenced in this case, the police did not provide Mr. Maze’s statement to the Crown until it was requested by the defence after the trial.

[54]                          Mr. Illes sought to adduce Mr. Maze’s statement to the police as fresh evidence in the Court of Appeal.  He argued that the Crown’s failure to disclose the contents of the interview with Mr. Maze violated his right to make full answer and defence.  In particular, he stated that, given Mr. Madinsky’s evidence that he had not seen a bucket at his apartment and the importance of his credibility in the case against Mr. Illes, the information could have been used at trial to further discredit the witness. He argued that the evidence could also have been used to support the defence theory that the police had “tunnel vision” in pursuing the investigation of Mr. Illes to the exclusion of the other likely suspect, Mr. Madinsky.

[55]                          The Court of Appeal concluded that the evidence met the relevance standard set by R. v. Stinchcombe, [1991] 3 S.C.R. 326, and held that the statements ought to have been disclosed.  However, the majority went on to conclude that, in the context of the evidence at trial, the Maze disclosure could not realistically have made a difference. Donald J.A. reasoned as follows:

It is doubtful in my view that, in the context of all the evidence, confronting Madinsky with evidence that he saw the head in the bucket at his apartment would have had a measurable effect on his credibility or the integrity of the police investigation.  At the preliminary inquiry, he said he did not see it.  In preparation for trial, he modified that by saying the bucket could have been in his apartment without his seeing it, and that was his testimony at trial. Maze’s statement to the police does not say that Madinsky in fact saw it. [para. 37]

In addition, Donald J.A. observed that Mr. Illes’s knowledge of Mr. Maze’s presence shortly after the murder and the fact that Mr. Illes did not pursue him for evidence tended to show that Mr. Maze had nothing to offer the defence.

[56]                          Rowles J.A. disagreed with the majority.  In her view, the possible utility to the defence of the Maze information could not be regarded as a matter of pure speculation or fancy.  It could not be said that the non‑disclosure would not have affected the outcome of the trial or the overall fairness of the trial proceedings.  Consequently, she would have admitted the fresh evidence and ordered a new trial on that basis as well.

3.  Analysis

3.1 The Mixed Statement Instruction

[57]                          The first ground of appeal raises the question whether, when faced with statements by an accused containing both inculpatory and exculpatory elements, a trial judge may, or should, instruct the jury that “the incriminating parts are likely to be true otherwise why say them?”, whereas excuses for one’s behaviour do not necessarily carry the same weight.  As explained more fully in R. v. Rojas, [2008] 3 S.C.R. 111, 2008 SCC 56, released concurrently, the mixed statement instruction originates from the English Court of Appeal’s decision in Duncan.  For reasons stated in Rojas, I agree with the court below that it is dangerous for a trial judge to instruct the jury in a manner that suggests that inculpatory and exculpatory statements ought to be weighed differently.  I therefore conclude that the Duncan instruction should not be adopted by Canadian trial courts.

[58]                          That said, as I explained in Rojas, the issue of whether a Duncan‑type instruction constitutes misdirection in any given case will depend entirely on the particular words used and their context.  The main difficulty in this case is that the trial judge added words suggestive of a legal presumption to the effect that incriminating parts of an accused’s statement are likely to be true.  As stated in Rojas, where a Duncan-type instruction is couched in terms of a legal presumption, the prejudicial effect may be difficult to overcome.  Nevertheless, having regard to the contents of the letters in question, their admitted fabrication by Mr. Illes, the respective use made of the evidence at trial by the Crown and the defence, and the instructions to the jury as a whole, I agree with the majority in the Court of Appeal that this unfortunate instruction, although given in error, could not realistically have impacted on the verdict.

[59]                          Most significantly, the letters contained no admissions in respect of which the impugned instruction could be applied.  The Crown did not rely on anything in the letters as an admission against the accused’s interest.  The Crown relied, rather, on the fact that Mr. Illes, by his letters, presented an ever-changing story, tried to influence witnesses and mislead the police in their investigation, and blamed others for his actions, arguing that these were not the actions of an innocent man.  This was a permissible inference to be drawn from the totality of the evidence and one which is not in any way affected by the unfortunate use of the presumptive language in the judge’s instructions. I respectfully disagree that the impugned instruction could reasonably have been interpreted by the jury as requiring them, as a matter of law, to favour the Crown’s theory of guilt as Rowles J.A. concludes (at para. 89), a view which my colleagues seemingly endorse (para. 20).

[60]                          Further, nothing in the charge would have prevented the jury from making appropriate use of the protestations of innocence contained in the letters and relied upon by the defence.  The trial judge emphasized to the jury that it was up to them to decide how much weight to give to the statements, and that they could accept all of them, some of them or none of them.  The trial judge also repeatedly told the jury that Mr. Illes was entitled to the benefit of any reasonable doubt raised by the evidence, including a reasonable doubt raised by the exculpatory statements in the letters.

[61]                          In the circumstances, I would not give effect to this ground of appeal.

3.2  The Maze Non-Disclosure

[62]                          The Crown’s obligation to disclose all relevant material in its possession under Stinchcombe is subject to claims of privilege.  However, the Crown is not relying on informant privilege in respect of Mr. Maze’s statement to the police.  Although Mr. Maze was a confidential informant at the time he gave the information in question to the police, he had waived his confidential status by the time Mr. Illes’s trial began.

[63]                          While the Crown, in answer to Mr. Illes’s application, explains the circumstances surrounding the non-disclosure, it does not dispute that the proposed fresh evidence meets the Stinchcombe threshold of relevance.  Relevance for the purpose of disclosure is broadly defined and includes any information that could reasonably be used by the accused in making full answer and defence:  R. v. Dixon, [1998] 1 S.C.R. 244, at para. 21, R. v. Chaplin, [1995] 1 S.C.R. 727, at para. 27.  Notably, the Crown’s disclosure obligation extends to relevant information which the Crown does not believe to be credible (Stinchcombe, at p. 346), and evidence which the Crown does not intend to call at trial (R. v. Taillefer, [2003] 3 S.C.R. 307, 2003 SCC 70, at para. 59).  It is also no answer to the Crown’s failure to disclose to say that Crown counsel were unaware of the Maze information because the police did not provide it to them.  The police have a corollary duty to disclose to the Crown the fruits of their investigation:  R. v. Jack (1992), 70 C.C.C. (3d) 67 (Man. C.A.); R. v. T. (L.A.) (1993), 14 O.R. (3d) 378 (C.A.), at p. 382; R. v. Gagné (1998), 131 C.C.C. (3d) 444 (Que. C.A.), at p. 455; and Driskell v. Dangerfield, [2008] 6 W.W.R. 615, 2008 MBCA 60, at para. 17.

[64]                          However, as this Court explained in Dixon, it is not sufficient to show that the accused’s right to disclosure has been breached to upset a verdict.  The question remains whether a new trial is the appropriate remedy (at para. 23):

The right to disclosure of all relevant material has a broad scope and includes material which may have only marginal value to the ultimate issues at trial. It follows that the Crown may fail to disclose information which meets the Stinchcombe threshold, but which could not possibly affect the reliability of the result reached or the overall fairness of the trial process.  In those circumstances there would be no basis for granting the remedy of a new trial under s. 24(1)  of the Charter , since no harm has been suffered by the accused.

[65]                          This Court explained further in what circumstances it would be appropriate to order a new trial.  The onus is on the accused on a balance of probabilities to show that his or her right to make full answer and defence was impaired.  The accused will discharge this burden where he or she demonstrates that there is a reasonable possibility that the non-disclosure affected either (1) the outcome of the trial, or (2) the overall fairness of the trial process (Dixon, at para. 34).  The first inquiry requires the court to consider whether there is a reasonable possibility that the undisclosed evidence, when considered in the context of the trial as a whole, could have impacted on the verdict  (Taillefer, at para. 82).  The second inquiry asks whether there is a reasonable possibility that the undisclosed evidence would have affected the defence’s opportunity to pursue meaningful lines of inquiry with witnesses or gather additional evidence that would have been available but for the non-disclosure.  As Cory J. aptly summarized the test (Dixon, at para. 36):

In short, the reasonable possibility that the undisclosed information impaired the right to make full answer and defence relates not only to the content of the information itself, but also to the realistic opportunities to explore possible uses of the undisclosed information for purposes of investigation and gathering evidence.  [Emphasis in original.]

[66]                          In my view, Mr. Illes cannot meet the first branch of the test.  The proposed evidence that the bucket was on Mr. Madinsky’s balcony at one point in time after the murder does not assist in determining whether Mr. Madinsky or Mr. Illes actually killed Mr. Dowling.  It is also consistent with the undisputed fact that Mr. Madinsky was  involved in helping to bury the victim’s remains.  Therefore, on its face, the fresh evidence could not realistically have affected the outcome of the trial.  The question whether the evidence could nonetheless have impacted on the verdict, having regard to the evidence as a whole, can best be answered on the second branch of the test by considering what use could possibly have been made by the defence of the undisclosed information.

[67]                          Mr. Illes argues that the defence could have called Mr. Maze to testify that the bucket was on Mr. Madinsky’s balcony and could then have used this evidence in cross-examination to challenge Mr. Madinsky’s claim that he had very limited contact with the bucket and its contents.  In the result, it is argued, Mr. Madinsky’s credibility would have been further undermined.  In turn, the evidence suggesting Mr. Madinsky’s greater involvement  in the crime could have bolstered the defence contention that he was the perpetrator.

[68]                          I am not persuaded by Mr. Illes’s arguments.  As for the potential use of the undisclosed statement in cross-examination of Mr. Madinsky, it is noteworthy that the fact that the bucket may have been on his balcony was put to him at trial.  In one of his statements to the police, Mr. Madinsky expressly denied that the bucket was ever in his apartment — he stated that he had no contact with the bucket other than at Ms. Ovalle’s house and during the trip to bury the remains.  At the preliminary hearing, however, he agreed that it might have been possible for Mr. Illes to have brought the bucket into the apartment when he was absent.  Shortly before the trial, he told Crown counsel that while he would have known if the bucket had been in his apartment, it could have been on his balcony without his noticing.  He essentially repeated the same evidence at trial.  When asked on cross-examination if it would be fair to say that he would have seen the bucket had it been in his apartment, Mr. Madinsky responded by saying “No. . . . Well, basically my place was pretty small . . . but we had a -- I think it’s a balcony or a porch, . . . I like my blinds closed all the time because people are always looking in, . . . it could have been there without me knowing, . . . due to the fact it could be on the balcony” (A.R., at p. 364).  Hence, Mr. Madinsky agreed that the bucket could have been on his balcony.  In my view, it is unrealistic for the appellant to suggest that Mr. Madinsky’s testimony would have been any different if confronted with Maze’s statement at trial and, in turn, that this additional item of evidence would have added anything of significance.

[69]                          As for the contention that Mr. Maze’s evidence would have supported the defence theory that the investigators in this case suffered from “tunnel vision”, accepting too easily that Mr. Illes was the shooter and failing to give sufficient consideration to the possibility that Mr. Madinsky might be the perpetrator (A.F., at para. 80), this theory was advanced at trial (A.R., at p. 532).  It is difficult to see how Mr. Maze’s testimony would add anything of significance to this argument.  Further, I agree with the majority below that it is significant that Mr. Maze’s presence at the apartment was known to Mr. Illes and that the defence’s failure to seek him out as a witness suggests that he had no helpful evidence to offer.

[70]                          For these reasons, I would dismiss the appeal.

Appeal allowed, Deschamps, Charron and Rothstein JJ. dissenting.

Solicitors for the appellant:  Ritchie Sandford, Vancouver.

Solicitor for the respondent:  Attorney General of British Columbia, Vancouver.