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COURT OF APPEAL FOR ONTARIO
Between:
HER MAJESTY THE QUEEN
(Respondent)
- and -
ROBERT BALTOVICH
(Appellant)
Heard: September 20-24, and September 27-29,
2004
On appeal from conviction for
second-degree murder by Justice John O’Driscoll of the Superior
Court of Justice, sitting with a jury, dated March 31, 1992.
BY THE COURT:
I. INTRODUCTION
[1]
Robert Baltovich appeals from his conviction for second-degree
murder in connection with the death of Elizabeth Bain. He submits
that his conviction constitutes a miscarriage of justice and that
it should be overturned. Of the many grounds of appeal that he has
raised, some relate to errors made at trial and some are tied to
fresh evidence that he seeks to have admitted.
[2]
Overall, Mr. Baltovich contends that he did not receive a fair
trial and that he was wrongfully convicted. He asks us to right
that wrong by overturning the verdict of the jury as unreasonable
and substituting a verdict of acquittal. Alternatively, he submits
that we should enter a judicial stay of proceedings and spare him
the ordeal of a second trial. Finally, as a last resort, he asks
that we quash his conviction and order a new trial.
[3]
For reasons that follow, we agree with the appellant that he did
not receive a fair trial. Our chief concern in that regard lies
with the trial judge’s charge to the jury. Unfortunately, it
lacked fairness and balance. Read as a whole, it unduly promoted
the case for the Crown and effectively ignored and denigrated the
case for the defence. Additionally, the charge contained
significant errors of law that were prejudicial to the appellant.
This is not a case in which the curative proviso can be applied to
sustain the conviction. Accordingly, the conviction cannot stand.
[4]
With respect to remedy, the appellant has not persuaded us that he
is entitled to an acquittal. In so concluding, we have tested the
verdict against both the trial record and the enhanced record on
appeal. We also reject the appellant’s alternative submission that
a judicial stay of proceedings should be ordered. The record does
not support that exceptional remedy. In all of the circumstances,
we are satisfied that a new trial is the proper remedy and the one
to which the appellant is entitled. Accordingly, we would allow
the appeal, set aside the conviction and order a new trial.
II. OVERVIEW
[5]
In
view of our conclusion that there must be a new trial, we have
kept our review of the evidence to a minimum. Details are provided
only where necessary to flesh out a particular ground of appeal.
[6] On
Tuesday, June 19, 1990, Elizabeth Bain went missing. She has not
been heard from since and her body has never been found. Although
not conceded at trial, the appellant now acknowledges that Ms.
Bain is dead and that she died as a result of a culpable homicide.
He further accepts that she was murdered. Accordingly, the
identity of her killer is the sole issue of concern.
1. Position
of the Crown
[7]
The Crown has consistently maintained that the appellant killed Ms.
Bain on the evening of Tuesday, June 19, 1990 between the hours of
5:40 p.m. and 7:00 p.m. He did so because of Ms. Bain’s decision
to terminate their relationship which, by that time, had been
ongoing for about a year and a half. Obsessed with Ms. Bain and
driven by a belief that if he could not have her, nobody would,
the appellant killed her in a state of jealous rage. Thereafter,
in the days and weeks that followed, he took various measures
designed to mislead the police and shield himself from detection.
Foremost among them was his activity in the early morning hours of
Friday, June 22. It was then, according to the Crown, that he
retrieved Ms. Bain’s body from Colonel Danforth Park
where he killed her, and moved it to Lake Scugog, a distance of
about forty-five minutes by car. There, he disposed of her body in
a place that to this day remains a mystery.
[8]
The Crown’s case against the appellant was entirely circumstantial.
It consisted of three bodies of evidence: opportunity, motive, and
after-the-fact conduct indicative of guilt. Within that mix, the
evidence of two witnesses took on special significance – Ms. Marianne
Perz with respect to opportunity and Mr. David Dibben with respect
to after-the-fact conduct.
[9]
Commencing with opportunity, Perz testified that on June 19 at
5:40 p.m., she saw the appellant and Ms. Bain seated together at a
picnic table near the tennis courts at the Scarborough campus.
The appellant denied being with Ms. Bain at that time. He claimed
that he was at home with his family.
[10]
At trial, the Crown maintained that the man seated beside
Ms. Bain was her killer. The defence did not suggest otherwise.
Thus, if accurate, Perz’s evidence virtually sealed the
appellant’s fate.
[11]
Secondary evidence of opportunity was provided by Mr.
Kaedman Nancoo, a student who attended the Scarborough campus and
who knew the appellant and Ms. Bain. Nancoo testified that on June
19 between 5:00 p.m. and 5:30 p.m., he observed the appellant in
the weight room at the Scarborough campus. If Nancoo’s testimony
was accurate, his evidence lent credence to Perz’s testimony and
contradicted the appellant’s evidence that he was at home with his
family.
[12]
On the question of motive, there was evidence from which
the jury could find that the appellant was jealous, possessive and
controlling and that he killed Ms. Bain because of her decision to
end their relationship. The evidence took various forms, including
entries in Ms. Bain’s diary, testimony from various witnesses
describing Ms. Bain’s hostile attitude towards the appellant and
her desire to end their relationship, and first-hand observations
of angry confrontations between the appellant and Ms. Bain on the
weekend preceding her disappearance.
[13]
With respect to after-the-fact conduct, David Dibben
testified that early in the morning of Friday, June 22, he
observed the appellant driving Ms. Bain’s car at a location near
Lake Scugog. At that time, Ms. Bain had been missing for several
days and the appellant had consistently denied knowing of her
whereabouts or the whereabouts of her car. Later that day, at
about 2:30 p.m., Ms. Bain’s car was discovered on Moorish Road in
Scarborough. In it, the police found bloodstains matching Ms.
Bain’s blood. The pattern of staining revealed that a body had
been dragged into the car through the passenger door. In the
circumstances, if Dibben’s evidence was accurate, it too virtually
sealed the appellant’s fate.
[14]
In addition to Dibben’s evidence, there was other evidence
of after-the-fact conduct tending to show the appellant’s guilt.
For example, depending on the jury’s assessment of it, there was
evidence that the appellant secreted or destroyed evidence, that
he attempted to have Kaedman Nancoo falsify his testimony and that
he had knowledge of material facts that would only have been known
by Ms. Bain’s killer.
[15]
Without elaborating further, it is fair to say that in
assessing the strength of the Crown’s case, the evidence of Perz
and Dibben took on special significance. That said, the overall
strength of the Crown’s case did not hinge upon the jury’s
assessment of their evidence in isolation. Rather, it depended on
the jury’s assessment of their evidence in the context of the
whole of the evidence, including a host of facts and circumstances
that individually and collectively pointed to the appellant as Ms.
Bain’s killer.
2. Position of the
Appellant
[16]
The appellant has consistently denied any involvement in Ms.
Bain’s disappearance or her death. Although he did not testify at
trial, his position was conveyed to the jury through a series of
pre-arrest statements made to the police and others. Those
statements were introduced into evidence by the Crown and they
form part of the trial record.
[17]
On the issue of opportunity, the appellant maintained that
he was not the one who killed Ms. Bain because at 5:40 p.m. on
June 19 (when she was seen by Marianne Perz with the man said by
the Crown to be her killer) he was at home with his family. His
evidence to that effect was confirmed by several family members.
[18]
On the issue of motive, the appellant claimed that prior to
her disappearance, he had no reason to believe or even suspect
that Ms. Bain had decided to terminate their relationship. On the
contrary, while their relationship may have had its ups and downs,
on balance, he had no reason to doubt her love for him. Indeed, he
firmly believed that some day they would marry. To the extent that
her diary entries, particularly the last one dated June 16,
seemed to suggest otherwise, he had no knowledge of such entries
prior to her disappearance. Moreover, taken at their highest, they
showed that Ms. Bain’s feelings towards him vacillated throughout
their relationship, sometimes for the better, sometimes for the
worse.
[19]
As for the witnesses who described angry confrontations
between him and Ms. Bain on the weekend before her disappearance,
they were simply mistaken in their identification. No such
incidents occurred.
[20]
The appellant also pointed to a number of witnesses who
supported his belief that Ms. Bain loved him and had no intention
of terminating their relationship. For example, Ms. Bain’s mother,
Julita, testified that prior to Elizabeth’s disappearance, she had
no reason to doubt the soundness of her daughter’s relationship
with the appellant. She could tell that her daughter and the
appellant were very much in love. Arlene Coventry, one of
Elizabeth’s best friends, also testified that she had no reason to
doubt the integrity of Elizabeth’s relationship with the appellant.
[21]
In short, the appellant denied having a motive to kill Ms.
Bain. He loved her very much and the thought of harming her was
the furthest thing from his mind.
[22]
On the subject of after-the-fact conduct, the appellant
sought to counter the Crown’s allegations by pointing to his
cooperation with the police and his efforts to find Ms. Bain. Far
from trying to mislead the authorities, he had done everything he
could to assist them. As well, he denied attempting to influence
witnesses or conceal evidence. Those who claimed otherwise were
mistaken in their recollection.
[23]
So too were the authorities mistaken in their belief that
he had moved Ms. Bain’s body to Lake Scugog in the early morning
hours of Friday, June 22. To the extent that David Dibben claimed
otherwise, he was mistaken in his identification. If Ms. Bain’s
car was in the Lake Scugog area, which it may well have been, it
was there on Wednesday morning June 20, not Friday morning June
22. That is what John Elliott, another Crown witness, recalled
after having his memory enhanced through hypnosis. That evidence,
along with Julita Bain’s evidence confirming that she spoke to the
appellant at his home on Wednesday morning at about 6:30 a.m.,
meant that he could not have been the person driving Ms. Bain’s
car when it was spotted near Lake Scugog.
[24]
In sum, the appellant maintained that he was innocent and
that the Crown’s case against him rested on tenuous evidence that
could not possibly support a conviction.
[25]
Against that backdrop, we begin by addressing several
grounds of appeal that require brief comment only. They involve
the reputations of trial counsel and certain evidence that the
appellant submits should not have been left to the jury as after-the
fact conduct capable of establishing guilt.
III. MISCELLANEOUS
GROUNDS OF APPEAL
[26]
First, the appellant submits that Crown counsel’s closing
address was improper. We disagree. In our view, apart from the odd
slip in which he may have expressed a personal opinion, used
emotive language, or inadvertently mis-stated the evidence, Mr. McMahon’s
address did not exceed the bounds of propriety.
[27]
Second, we reject the submission that defence counsel at
trial (Mr. Engel and Mr. Gatward) were incompetent for failing to
concede that Ms. Bain was dead and that she had been murdered.
Evidence led at trial indicated that she might still be alive or
that she might have taken her own life. Leaving it to the jury to
decide those issues may not have been the best tactical decision
but not every tactical mistake translates into incompetence.
Notably, in his closing address, Mr. Gatward did not stress either
issue. Rather, he focused almost exclusively on the identity of Ms.
Bain’s killer. In the end, any harm flowing to the appellant from
trial counsels’ tactical decision would have been minimal.
Accordingly, this ground fails.
[28]
Third, we feel obliged to comment on the appellant’s
challenge to the trial judge’s instructions on after-the-fact
conduct. Of particular concern is his claim that much of the
evidence left for the jury’s consideration was not after-the-fact
conduct capable of establishing guilt. As will be seen, we largely
disagree with that submission.
[29]
On the record at trial, we believe that there were only two
items of evidence that should not have been left to the jury as
after-the-fact conduct capable of establishing guilt. They are:
(1)
the haircut that the appellant received in jail while his
preliminary hearing was ongoing; and
(2)
the telephone call made by the appellant’s brother Paul to
the police in the early morning hours of Monday, June 25.
[30]
In our view, those items of evidence could not be used to
infer guilt. The first was tenuous at best and the second was not
linked to the appellant. Accordingly, they should not have been
left for the jury’s consideration.
[31]
Before leaving this matter, we note that the law on after-the-fact
conduct has changed considerably since the trial of this matter in
1992. The presiding judge at the new trial will, of course, be
guided by the principles that have since been enunciated by this
court and the Supreme Court of Canada. He or she will also decide
what evidence the jury can properly consider as after-the-fact
conduct capable of establishing guilt.
[32]
We now turn to the issues arising from the eyewitness
identification evidence and the trial judge’s charge to the jury.
IV. EYEWITNESS IDENTIFICATION
EVIDENCE
[33]
The Crown led the evidence of several witnesses who
identified the appellant or Ms. Bain at crucial times. As already
mentioned, the two most important identification witnesses were
Marianne Perz and David Dibben. Perz testified that she saw the
appellant seated beside Ms. Bain at a picnic table near the tennis
courts between 5:40 and 5:45 p.m. on Tuesday, June 19, 1990, the
day Elizabeth disappeared. In his statements to the police, the
appellant denied seeing Ms. Bain on June 19. Dibben testified
that he saw the appellant driving Ms. Bain’s car early in the
morning on Friday, July 22 at the intersection of Highways 12 and
7A. The appellant denied driving Ms. Bain’s car after her
disappearance.
[34]
Another witness, Suzanne Nadon, testified that in the early
morning hours of Monday, June 18, she saw and heard Ms. Bain
having an argument with an unidentified male. If accepted,
Nadon’s evidence contradicted the appellant’s statements to the
police that he and Ms. Bain made love on Sunday evening and that
their relationship was strong. Nadon’s evidence supported the
Crown’s theory that Ms. Bain had decided to break up with the
appellant, thereby providing a motive for her murder.
[35]
The appellant submits that the trial judge erred in
admitting the evidence of Perz and that he erred in failing to
give the jury an adequate warning with respect to certain
frailties in the eyewitness identifications of Perz, Dibben and
Nadon. The appellant raises a number of additional issues as to
the treatment of eyewitness identification evidence, but in light
of the conclusion we have reached with respect to the issues just
identified, we find it unnecessary to address those additional
issues.
1.
Post-hypnosis Evidence
[36]
The appellant argues that the evidence of Marianne Perz was
inadmissible because it was hypnotically induced. For the reasons
that follow, we find that this ground of appeal is without merit.
First, however, we will set out the details surrounding Perz’s
evidence.
(a) Evidence of Marianne Perz
[37]
In the summer of 1990, Perz was employed as a tennis
instructor at the Scarborough College Tennis Club. Perz
described Ms. Bain, whom she had known for ten years, as a good
acquaintance. Perz did not know the appellant and had never seen
him prior to June 19, 1990. On Saturday, June 23, after learning
that Elizabeth had disappeared, Perz remembered seeing her on
Tuesday, June 19. She realized that she might have been the last
person to see Elizabeth alive. Perz contacted the police and gave
a statement to Detective Anthony Warr. In her statement, Perz
said that she had seen Elizabeth on Tuesday sitting at a picnic
table near the tennis courts sometime between 5:30 and 6:15 p.m.:
I have known Lisa [Elizabeth] for years - I am sure it was her - I
am very positive. She was wearing pants - she was not wearing
shorts - she had dark colours on - nothing bright - her hair was
back - it was not in her face…There were other people at the table
- she was sitting on the near side of the table facing the courts
between two other people, and there was at least one other person
on the other side of the table.
[38]
Perz described the woman on Elizabeth’s right as being a
white female. She had a very limited memory of the person sitting
on Elizabeth’s left: “The one on the left could have been the [sic]
man - he had dark hair - I believe he was white – I don’t remember
what he was wearing…”. Perz added that the two females were “very
plain looking”, that the group seemed to be university students
and to be together, but that they were not talking, just watching.
She told the police: “I think I could recognize one or more of
these people if I saw them again. I have never seen any of them
there before. That’s the first time I’ve seen Lisa all year.”
[39]
Perz was unable to provide any further details about the
man sitting beside Elizabeth. On July 1, 1990, Perz read an
article about Elizabeth’s disappearance in the Toronto
Sun. The article strongly suggested that the appellant was a
suspect in Ms. Bain’s disappearance and included a photograph of
the appellant. During the period after Elizabeth’s disappearance,
Perz had also been speaking to members of the Bain family. She
knew that they viewed the appellant as a suspect and that he was
under surveillance.
[40]
Perz spoke to the police again on July 8. She provided a
more precise time when she had seen Elizabeth: “I now remember it
was exactly 5:40 p.m.” However, Perz was unable to provide any
further details describing the man who had been sitting beside
Elizabeth. She added:
“I am not sure if I would recognize a picture of the man sitting
with her. He was on her left side.” Perz made no reference to the
Toronto Sun photograph.
[41]
On July 10, Perz agreed to be hypnotized by Dr. George
Matheson. Detective Warr drove her to the hospital for the
hypnosis session, a trip that took forty minutes. Detective Warr
had the July 1 Toronto Sun article with the
appellant’s photograph in the car. At trial, there was evidence
that Perz saw this photograph on her way to Dr. Matheson’s
office, however, that fact is disputed in fresh evidence led by
the Crown on appeal.
[42]
Under hypnosis, Perz elaborated significantly on her
descriptions of Elizabeth’s clothing and the man seated beside her.
She described the man as having short, straight dark hair and
looking at Elizabeth:
Q. What do you
notice about his face as he looks at her?
A. He’s got
something funny with his eyes. There’s something about his eyes.
Q. What?
A. They’re just.
Small. I can’t. There’s something strange about them.
[43]
Perz described the man as being “very white” and a little
taller than Elizabeth. His face was unfriendly while Elizabeth
looked happy. Initially, Perz could not remember the man’s
clothing but then, after further questioning, she provided further
details:
Q. Is he dressed
for class? Or dressed for tennis?
A. Not for tennis.
Just regular type of running shoes sort of thing. He’s wearing
shorts. That’s why she sticks out in my mind because she was
wearing pants. Because he, I think he’s wearing shorts.
Somebody’s wearing shorts. Uhm. She looked really friendly. She
was really happy to see me. More than usual.
[44]
Perz saw “a few dark colours” in the man’s clothing, “but
there is a little bit of light, white colour in his clothes I
think.” He looked “just sort of mediocre weak”. For the first
time, she expressed “this feeling” that he was with Elizabeth
“because he’s so close”. As the hypnosis progressed, Perz became
more certain that Elizabeth was with the man. She continued: “He
might be a little bit stocky in the legs. Just a little bit. Not
too much. But he’s short. He’s not great looking. He’s got
these funny eyes. It’s like I remember. I’m thinking. I’m
trying.” She also recalled for the first time that there were four
other women near Elizabeth.
[45]
Dr. Matheson told Perz at the end of the hypnosis session:
But even when your eyes
are open and even when we are through, later on if you want to
remember what he looked like or she looked like, all you have to
do is close your eyes and look carefully and you’ll be able to
remember seeing both of them.
[46]
After the hypnosis session, Detective Warr showed Perz a
photo line-up comprised of twelve images. He produced his notes of
the photo line-up:
Stated she believes she could pick out a photo of the man with
Lisa.
[Warr]: Do you know Rob?
[Perz]: I have never met him. I saw a picture of him in the paper.
[Warr]: If I show you a group of photos, would you be able to pick
out the man who was with Lisa [Elizabeth], if his photo is there?
Rob’s [Baltovich’s] photo is in the group [emphasis
added].
[47]
Perz pointed to photographs one and six and said: “These
are the eyes.” She then pointed to photograph number six, the
appellant’s photograph, but according to Warr’s notes: “She didn’t
want to say for sure....”
[48]
Detective Warr then drove Perz to 42 Division where she
gave a further taped interview. Previously, she had remembered
Elizabeth’s clothing as being dark colours. She now remembered
Elizabeth was wearing a blouse with a pattern on it with some
beige colouring. She described the man as seeming very gentle.
Detective Warr asked her: “Was [the appellant] the man sitting on
the picnic table with Lisa?” Perz hesitated and then responded:
“It looked like it.” She then told Detective Warr that photograph
“6 is the closest”.
[49]
At trial, Perz testified that she had settled on photograph
six by a process of elimination. She also stated that she
recognized the appellant’s photograph in the line-up from the
Toronto Sun photograph, although she described the
newspaper photograph as a “foggy sort of image of him”.
[50]
At trial, Perz gave a more complete description of
Elizabeth’s clothing:
In terms of what she was
wearing, she was wearing dark pants, black shoes, a top that
seemed to have a floral pattern, beige with some kind of a pattern
print, it was to her elbows. And that seemed unusual to me,
because it was such a hot day she would be wearing long pants, and
the people around her were wearing shorts and T-shirts.
[51]
Perz also testified than she thought Elizabeth might have
been crying because she had no eye make-up and, for the first
time, mentioned the possibility that Elizabeth might have had a
barrette in her hair.
When I walked up, I
noticed Elizabeth sitting there. The first thing that struck me
is that Elizabeth sat up and smiled, and with her eyes really
lighting up to me as if she was extremely happy and content to see
me. It was a little unusual because Elizabeth is a very – rather
introverted, and very quiet, and obviously wouldn’t be so
aggressive per se and she smiled. I looked over and
mouthed the words “hello.”
And I noticed her hair was
back, and I would have inferred from this it would have been held
up in a barrette. She was sitting among people. There was a male
on her left hand side, there were females on her right hand side.
[52]
Perz testified that the man was “[c]lose enough they could
have been touching, but certainly close enough that I interpreted
that my feeling was that they were together, my gut feeling when I
saw them.”
[53]
The man did not look at Perz. She believed he was wearing
shorts. She thought there might have been four people altogether
sitting at the table including Elizabeth and the man beside her.
At trial, Perz described the man seated beside Elizabeth in much
the same way as she had under hypnosis although, for the first
time, she added that he was “in his 20’s”. She agreed that she
could be mistaken that the man was the appellant and explained in
re-examination:
Well, you see, when I
measure doubt, it is because I am measuring it against my
identification of Elizabeth. I am one hundred percent sure
because I knew Elizabeth before, so when I saw her I recognized
her, and it was very different. And I can’t give that same degree
of accuracy to the person sitting beside her because I didn’t know
who that person was before, and the reason I can’t do that, and in
all honesty to Mr. Baltovich I am expressing that there must exist
some uncertainty because I didn’t know him before.
(b) Admissibility of Marianne Perz’s
Evidence
[54]
The appellant submits that the trial judge erred in
admitting Perz’s evidence. The appellant contends that her
evidence should have been excluded on the ground that she was only
able to identify the appellant after undergoing hypnosis.
[55]
Perz was one of four Crown witnesses (the others being
Kaedmon Nancoo, Suzanne Nadon and John Elliott) who were
hypnotized with a view to enhancing their memories and whose
evidence was canvassed on appeal. The issue of admissibility was
addressed on a voir dire with respect to Perz’s evidence.
The trial judge’s ruling that her evidence was admissible was then
applied to the evidence of other witnesses who had been hypnotized.
The jury was told that these witnesses had been hypnotized but the
jury heard no expert evidence regarding post-hypnosis evidence. On
the voir dire, Dr. Matheson (who had conducted the hypnosis
sessions of all four witness) testified for the Crown. The
defence called Dr. Peter Rowsell. Both witnesses testified that,
if properly conducted, hypnosis is a scientifically valid
procedure for attempting to refresh memory. Both experts also
testified that, if not done properly, hypnosis could increase the
danger of (1) confabulation (providing inaccurate details to fill
in minor gaps in memory) and (2) susceptibility to suggestion. Dr.
Rowsell also testified about “memory hardening”, which occurs when
a person has more confidence in a memory because of some
intervening influence.
[56]
The trial judge found as a fact that Dr. Matheson had
followed appropriate procedures in conducting the hypnosis session
in compliance with the standards set out in a leading American
case, New Jersey
v. Hurd
414 A.2d 291, modified on reh’g, 432 A. 2d 86, and adopted
in R. v. Clark (1984), 13 C.C.C. (3d) 117 (Alta. Q.B.) at
125:
1) The person conducting the hypnotic interview should
be a qualified professional with training both in the use of
hypnosis and expertise in psychiatry or clinical psychology.
2) The hypnotist must be independent of the party who
requires his services. That is, he must be free to conduct the
hypnotic interview in accordance with his professional standards
rather than in concert with the party who employs him.
3) The hypnotist should be given only the minimum
amount of information necessary to conduct the interview. This
information should be communicated solely in written form.
4) The entire interview between the hypnotist and the
potential witness should be recorded preferably on video-tape, but
there should at least be a complete audio record.
5) The interview should be conducted with only the
hypnotist and the subject present. If the party who employs the
services of a hypnotist (whether the police or defence counsel),
wishes to observe the interview, then arrangements will have to be
made so that the interview can be viewed from another room by
virtue of closed circuit television or whatever other mechanism is
available.
6) Prior to the actual hypnosis of the subject, the
hypnotist should conduct a lengthy interview of the subject to
determine his medical history including information about the
present or past use of drugs. The judgment and intelligence of the
subject should be evaluated.
7) Prior to hypnosis, the hypnotist should elicit from
the subject a detailed description of the facts surrounding the
subject-matter of the hypnosis session as the subject is able to
recall them at that point in time.
8) The hypnotist should pay careful attention to the
form and manner of his questions, the choice of his words and the
avoidance of body language so that he is not either intentionally
or inadvertently providing the subject with information.
[57]
The trial judge found further that, as appropriate
procedures had been followed, the risks associated with memory
recall had not been increased by Perz having undergone hypnosis
and accordingly admitted her evidence. The trial judge concluded
that the problems that may be associated with post-hypnosis
evidence and the possibility that Perz’s evidence was tainted
should not prevent the jury from hearing the evidence as courts
often admit evidence from witnesses whose recollection may not be
entirely pristine. The trial judge held that it was for the jury
to decide how much weight to give post-hypnosis memories as
compared to other statements. As a result, the trial judge did
not find “any unfairness” in allowing Perz to testify. Although
the issue was framed in terms of the prejudicial effect
“substantially” outweighing the probative value of the evidence,
the trial judge’s reasons demonstrate that he did not impose a
higher standard for exclusion than that mandated by R. v.
Seaboyer, [1991] 2 S.C.R. 577.
[58]
In his factum, the appellant urges us to adopt a blanket
exclusionary rule with respect to post-hypnosis evidence. However,
shortly before this appeal was heard, a different panel of this
court rejected that same argument: R. v. Trochym, [2004]
O.J. No. 2850 (C.A.). The appellant did not abandon the submission
that there should be a blanket rule excluding post-hypnosis
evidence, but he recognized that Trochym was binding on us
and he framed his oral submissions accordingly. In light of
Trochym, we would not give effect to the appellant’s first
argument.
[59]
We turn to the appellant’s alternative submission that
Perz’s evidence should have been excluded because its prejudicial
effect outweighed its probative value. The appellant relies upon
both American and Canadian authorities that point to the
weaknesses and dangers of post-hypnosis evidence. By way of
example, he cites: R. v. Taillefer (1995), 100 C.C.C. (3d)
1 at 21-22 (Que. C.A.), Proulx J.A;
McCormick on
Evidence,
5th ed. (St. Paul: West Publishing, 1999), vol. 1 at 771-76;
People v. Shirley, 723 P.2d 1354 (Cal. 1982); and
United States v. Valdez, 722 F.2d 1196 at 1203 (5th
Cir. 1984).
[60]
The dangers referred to in these authorities are well
documented. As previously mentioned, these dangers have been
identified as confabulation, susceptibility to suggestion and
memory hardening. Expert testimony on the voir dire alerted
the trial judge to those dangers and he considered them in
arriving at his decision to admit Perz’s post-hypnosis evidence.
[61]
Manifestly, there are dangers associated with post-hypnosis
evidence. The Seaboyer approach recognizes this and
requires trial judges to carefully assess the value of such
evidence, having regard to the facts and circumstances of each
case. Where the evidence is important to the Crown’s case and it
involves an area such as eyewitness identification evidence that
poses its own difficulties, added care will be in order to ensure
that the proposed evidence is sufficiently reliable to warrant its
reception.
[62]
On the record before him, the trial judge was satisfied
that the probative value of Perz’s evidence outweighed its
prejudicial effect. The trial judge’s factual findings on the
voir dire and his weighing of the probative value and
prejudicial effect of the evidence must be accorded deference on
appeal. We are not persuaded that there are grounds for appellate
interference with his ruling to admit Perz’s evidence.
[63]
That said, it is apparent from the positions taken before
us that at the new trial, the admissibility of the post-hypnosis
recollections of Perz and others will be contested. If that occurs,
it will be for the trial judge to assess the question of
admissibility afresh having regard to the evidence called and the
applicable legal principles.
[64]
The appellant has brought a motion to admit fresh evidence
regarding post-hypnosis evidence. In our view, this evidence
fails to meet the test from R. v. Palmer (1979), 50
C.C.C. (2d) 193 (S.C.C.). The evidence could have been adduced at
trial if the defence had been duly diligent. The defence was
familiar with the dangers associated with post-hypnosis evidence,
and could have made efforts to find expert witnesses willing to
testify that the hypnosis interview of Perz was too problematic to
be reliable. The defence chose to call Dr. Rowsell, a recognized
expert with an excellent reputation, on the recommendation of
another experienced defence attorney. The appellant cannot
justify introducing fresh evidence on appeal simply because Dr. Rowsell’s
evidence turned out to be disappointing. Furthermore, the fresh
evidence proffered by the appellant is contradicted by the Crown’s
fresh evidence. Thus, when read as a whole, we cannot say that
the fresh evidence on this point would have been determinative.
2.
Jury Charge
[65]
The appellant also submits that the trial judge’s charge
did not adequately warn the jury about the frailties in the
eyewitness identification of Marianne Perz, David Dibben and
Suzanne Nadon.
(a) Evidence of David Dibben
[66]
Dibben first contacted the police on July 1, 1990 to say
that he had seen Ms. Bain’s car in the area of Manchester near
Lake Scugog early on the morning of Friday, June 22, 1990. The
police initially discounted his claim, but months later, when they
obtained evidence that Ms. Bain’s car might have been moved on
Thursday evening, the police took Dibben’s evidence more seriously.
[67]
At trial, Dibben testified that between 6:00 and 6:10 a.m.
on Friday, June 22, he was being driven to work by a fellow
employee. Dibben and his friend stopped at a traffic light and a
small, silver Toyota Tercel pulled up ahead on their left side.
Dibben noticed a set of artificial fingers hanging out of the
passenger door and mentioned this unusual feature to his driver.
He identified a photograph of Ms. Bain’s car as looking “very
much the same” as the one he saw on June 22. Dibben, who had been
ten to twelve feet from the driver of the silver Toyota, could see
the driver from the side and from behind, “more or less to the
side, more to the side than to the rear” from “just below the
shoulders up.” He testified: “I wasn’t really paying attention to
him, just basically looking, looking around” but that his eyes met
those of the driver “for a split second”.
[68]
The police officer who took Dibben’s statement on July 1
recorded his description of the driver as “male white, 24-25,
blonde hair, semi-receding wearing white fluorescent T-shirt; also
driver had blonde moustache and was thin-faced.” When Dibben was
first interviewed in person by the police on November 15, 1990, he
described the driver as follows: “The driver was a guy 25-28 years
old, thin face, dirty blonde hair just below the earlobe and a
moustache the same colour as his hair. He was wearing a T-shirt,
grey I think, with something colourful on the front.” Dibben was
presented with a photo line-up. He identified as the driver of the
car a photograph of the appellant taken on Sunday, June 24, just
before midnight when the appellant appeared not to have shaved for
one or two days.
[69]
At the preliminary hearing, Dibben’s description of the
driver changed. He testified: “I would say he was a white male
with medium to light brown hair, a beard growth. He hadn’t shaved
for two or three days. A bit of a moustache. The same type of
thing. Maybe he hadn’t shaved in two or three days. He was
wearing a black T-shirt or dark T-shirt, something bright in front,
I am not sure what it was, but it was something bright in the
front.” This was the first time he had mentioned a beard.
[70]
At trial, Dibben was asked if he could identify the
appellant in the dock as the man he had seen driving on June 22,
1990. He answered: “I would say so, yes, except for the fact that
he looks thinner and the hair is neater, shorter, clean shaven.”
He testified that it was “mostly the eyes” that enabled him to
identify the appellant. Dibben described the moustache as “quite
prominent, it wasn’t a full moustache though”. He thought that
the moustache might have been a week old and that it was longer
than the beard. He was certain that the driver’s hair descended
to, or below, the earlobe. Dibben agreed that the colour
photograph of the appellant showed that he had dark hair, not
blonde or dirty blonde hair.
[71]
Various witnesses testified as to the appellant’s
appearance in late June and early July 1990. Detective Warr
described him as “male, white, 5 foot 8 inches tall, with an
athletic build, dark brown hair, straight, combed back, wet look.”
Other witnesses confirmed that the appellant kept his hair cut
short, above his ears, with a jelled or wet appearance that made
it look darker. The appellant did not have a receding hairline.
The appellant never had a beard or moustache. However, there was
evidence that he had appeared unshaven during some of the searches
for Ms. Bain. During his interview with the police late on
Thursday, June 21, the appellant was unkempt and unshaven, with
perhaps a day or a day and a half’s growth of beard. In addition,
one witness, Arlene Coventry, also described his hair colour as
“dirty blonde”.
[72]
At trial, Dibben took issue with the record of the
description he had given on July 1. He testified that he told the
officer that the man had dirty blonde or light brown hair;
he agreed that “I may have described [the hairline] wrong” and
that he “didn’t really mean” that the driver had a receding
hairline, only that he could see the driver’s forehead and that he
did not think that he had described the moustache as blonde but
that he had said the moustache was the same colour as the hair, or
possibly darker.
(b) Evidence of Suzanne Nadon
[73]
Nadon lived near the Scarborough Campus of the University
of Toronto. At about 12:30 a.m. on Monday June 18, Nadon heard a
man and a woman arguing on the street outside her house. She got
out of bed to look. Her view was obstructed by some bushes. She
heard a car door slam and caught a glimpse of the car as it drove
away but could not see the driver. Nadon then saw a girl walking
along the side of the gravel road in the direction in which the
car had gone. A few days later, Nadon heard about the
disappearance of Ms. Bain and saw a poster with her photograph
asking: “Have You Seen Liz or Her ’81 2-door Silver Toyota???” At
trial, Nadon testified that when she saw the poster, she thought
it looked like the girl she had seen but added: “Mind you, I
didn’t see her full view like the picture was, but she looks very
similar to that girl.” On July 5, Nadon called TIPS to report what
she had seen. She described the woman as “5 foot 3 to 5 foot 4,
average build, long hair, wavy, frizzy, wearing a mini-skirt and
top” and the car (which had been described in newspaper reports)
as “similar to a Toyota, silver in colour, with a black strip on
the side, small auto”.
[74]
On July 18, 1990, Nadon was interviewed by the police. She
reported that she did not “actually catch the conversation”
between the man and woman and that she had observed the woman for
six to ten seconds as she walked away: “I only saw her from her
right side and from the rear. I never saw her face on.” She
described the woman as being in her early 20’s, white, 5’3’, small
build with brown hair to her shoulders, wearing a dark mini-skirt
or loose shorts, with a lighter coloured top, and dark shoes.
Nadon was shown a single photograph of Ms. Bain but could not
identify her as the woman she had seen on June 18: “I can’t say
for sure. If I saw one showing her from the side I could maybe
tell better. But this picture is straight on, and I never saw her
straight on. I only saw her from the right side and from the rear.”
[75]
Nadon described the car as having a single black stripe
about six inches wide and could not recall any stickers and did
not mention any plastic fingers on the car she saw. When shown a
photograph of the car showing its six black stripes she stated:
“Yes this is definitely the car. Now that I see the picture I
remember the wheels looked like they had spokes and that the
stripe was a broken stripe.”
[76]
On August 30, 1990, Nadon was hypnotized by Dr. Matheson.
Under hypnosis, she related for the first time some distinct words
of the argument. She recalled that the girl said: “No, I don’t
want to”. The man said: “Why?” The girl said: “No. I just don’t
want to”. Nadon also heard the words “forget it”. She recalled
the girl’s hair as being dark. Under hypnosis she remembered for
the first time seeing a sticker on the licence plate. (At her
July 18 interview she had been shown a photograph of the rear of
the car showing a CAA sticker.) On July 18, she had reported:
“[The driver] didn’t pull off real fast, no squealing tires and I
didn’t hear any gears change.” Under hypnosis, Nadon said she may
have heard gears grinding: “I think I heard a grind. I think.
Yeah....Could be a gear.” Nadon expanded on this at trial: “...
when it first pulled out, I heard gears grinding, when you start
from first to second and you don’t have the clutch down enough,
like that.”
When interviewed by the police after hypnosis Nadon remembered a
sticker in the trunk area of the car: “I also remember a round
thing or oval thing, possibly a sticker on the trunk lid or above
the tail lights on the passenger side.”
(c) Jury Charge on Eyewitness Identification
Evidence
[77]
The trial judge gave the jury a general, standard form
“boilerplate” warning on the dangers inherent in eyewitness
identification evidence. At trial, defence counsel did not object
to the trial judge’s instructions in this area. Indeed, defence
counsel praised the trial judge’s “very full and ample”
identification instructions. However, before us, the appellant
submits that the trial judge’s charge was seriously deficient with
respect to all three eyewitness identification witnesses.
[78]
Of the three eyewitness identification witnesses in
question, there can be no doubt that Marianne Perz and David
Dibben gave evidence that was central to the Crown’s case against
the appellant. Their evidence, along with that of Suzanne Nadon,
exhibited frailties that we identify below. It is settled law that
juries must be cautioned about the risk of error inherent in
eyewitness identification evidence. In some cases, a general
warning as to the dangers of eyewitness identification evidence
will suffice and trial judges must be given considerable latitude
in deciding how to address the issue. However, we agree with the
submission of the appellant that the evidence of these three
witnesses contained significant frailties and that it was
incumbent upon the trial judge to caution the jury as to these
specific frailties and not rely upon a general “boiler-plate”
instruction.
[79]
The need for a direction warning the jury of any specific
weaknesses has long been recognized. In R. v. Turnbull,
[1976] 3 All. E.R. 549 at 552 the English Court of Appeal stated:
“Finally, [the judge] should remind the jury of any specific
weaknesses which had appeared in the identification evidence [emphasis
added].” Similarly, in R. v. Keane (1977), 65 Cr. App.
R.247 at 248 (C.A.), Scarman L.J. held as follows:
It would be wrong to
interpret or apply Turnbull (supra) inflexibly. It
imposes no rigid pattern, establishes no catechism, which a judge
in his summing-up must answer if a verdict of guilty is to stand.
But it does formulate a basic principle and sound practice. The
principle is the special need for caution when the issue turns on
the evidence of visual identification: the practice has to be a
careful summing-up, which not only contains a warning but also
exposes to the jury the weaknesses and dangers of identification
evidence both in general and in the circumstances of the
particular case.
Unfortunately,
the summing-up in this case falls short of the requirements of
sound practice. The warning is muffled and confused: the
weaknesses in the evidence are not fully exposed: and some
comments are definitely misleading [emphasis added].
[80]
In R. v. Canning (1986), 27 C.C.C. (3d) 479 at
479-480 (S.C.C.), the Supreme Court of Canada set aside a
conviction that rested upon eyewitness identification evidence
where the trial judge failed to relate the need for caution to the
specific facts of the case:
We are all of the view
that while there was some evidence of identification of the
accused, and while the trial judge did instruct the jury that
caution should be exercised in approaching the identification
evidence, he did not relate that need to the facts of this case.
The result is that his charge on the issue of identification was
inadequate - particularly with regard to the identification
procedures adopted at the detention centre [emphasis added].
[81]
Similarly in R. v. Brand (1995), 98 C.C.C. (3d) 477
at 479 this court stated:
In the circumstances, we
think the trial judge ought to have carefully instructed the jury
on the dangers inherent in eyewitness identification and, in
addition, he should have reviewed the evidence and related it to
that instruction. The judge did charge the jury on eyewitness
identification, the effects of colour, light and memory. The
respondent contends that considered as a whole the charge
adequately deals with this issue and that this is evident from the
failure of defence counsel to make any objection. We do not agree.
We think on the evidence the issue was raised and had to be
squarely dealt with as eyewitness identification of the most
credible witnesses may be fraught with the danger of mistake [emphasis
added].
[82]
The same point was made by the British Columbia Court of
Appeal in R. v. Fengstad (1994), 27 C.R. (4th) 383 at 396-7
(B.C.C.A.):
Thus it
appears that it is now settled in England, Ontario and Manitoba
that in cases such as this one, it is necessary for the trial
judge to remind the jury of specific weaknesses in the Crown’s
identification evidence. In our judgment, this cannot be done by
a mere recitation of the evidence as was done in this case.
[83]
See also R. v. Proulx (1992), 76 C.C.C. (3d) 316 at
350 (Que. C.A.):
... it is not sufficient
that the trial judge instruct the jury that caution should be
exercised in approaching the visual identification evidence. It
is also necessary that the jury relate “that need to the facts of
the case” (Canning, supra), drawing the jury’s attention in
particular to any significant thing affecting the visual witnesses’
observations or memory, as well as any irregular identification
procedures which may affect the result. The weight of visual
identification evidence may be partially or wholly destroyed by
the use of any prejudicial identification methods…The use of such
methods in the present case required an appropriate warning on the
part of the judge.
(i) Marianne Perz
[84]
There were elements of Perz’s identification that could not
have been derived from the Toronto Sun photograph
and that supported her identification of the appellant: the look
of his eyes, his stocky legs and that fact that he was wearing
shorts. However, in view of the well-known risks posed by
eyewitness identification evidence, the jury should have been
directed to consider the following factors in relation to Perz’s
identification of the appellant as the man seated on the picnic
table beside Ms. Bain:
·
in her original statement to the police, Perz was
unable to describe any features or characteristics of the man,
except that she believed he was white;
·
the man was a stranger to her and at the time she
saw him, her attention was focused on Elizabeth;
·
her memory of the man noticeably improved and, to
some degree, changed as she made further statements;
·
she saw the July 1, 1990 Toronto Sun
article identifying the appellant as a suspect and showing his
photograph and she knew from her discussions with the Bain family
that the appellant was a prime suspect;
·
she may have seen the Toronto Sun
article again on July 10 in a police car while on her way to her
hypnosis session;
·
it was only after she had seen the photograph and
been hypnotized that she was able to provide any detailed features
or characteristics of the man she had seen;
·
she agreed that her memory had become an
amalgamation of pre-hypnosis and post-hypnosis memories and
described her trial memory as “a flashback”;
·
Detective Warr told her that “Rob’s photo is in the
group” when he invited her to view the photo line-up; and
·
she remained tentative and stated that the appellant
“looked like” the man but she “didn’t want to say for sure”.
[85]
The Crown submits that the appellant made a critical
tactical decision at trial to embrace the value of hypnosis in
order to bolster the evidence of John Elliot who, after being
hypnotized, recalled that the day he saw Ms. Bain’s car near Lake
Scugog was Wednesday, and not Friday as stated by Dibben. At trial,
once the trial judge determined that the post-hypnosis
recollections of the witnesses would be admitted, the defence
decided to try to turn that ruling to their advantage. No evidence
was led before the jury as to the dangers of post-hypnosis
evidence and defence counsel did not ask for a warning to the jury
on the use of post-hypnosis evidence as that might have undermined
Elliot’s evidence.
[86]
We agree that in these circumstances, if the issue could be
reduced to one of hypnosis alone, the trial judge could not be
faulted for failing to give a specific direction regarding the
dangers of post-hypnosis evidence. However, the issue that
concerns us relates to the well-known dangers of eyewitness
identification. Hypnosis certainly represents part of eyewitness
identification in this case, as it was only through hypnosis that
Perz was able to identify the appellant. By contrast, Elliot’s
post-hypnosis evidence pertained to the timing of his observations,
not to his identification of the appellant. In our view, despite
the position taken by the defence at trial with respect to
hypnosis generally, the trial judge should have cautioned the jury
that Perz was only able to identify the appellant after hypnosis,
and he should have linked hypnosis with the potentially tainting
factors we have identified above. While the failure of trial
counsel to object to the charge is an important factor to consider
on appeal, it is not fatal where the error in the charge amounts
to a fundamental legal error.
(ii) David Dibben
[87]
Dibben’s identification of the appellant as the driver was
also problematic for several reasons, including the following:
·
he had a limited opportunity to view the driver, as
he “wasn’t really paying attention” to the driver and his view was
limited to a right side profile from behind;
·
the driver was a stranger to him;
·
his initial description provided no details of the
appellant other than sex, race and approximate age, and other
details provided by him were arguably at odds with the appearance
of the appellant with respect to hair colour, hair length, hair
line, and moustache;
·
his descriptions of the driver and of the driver’s
clothing changed significantly over time; and
·
he was less than certain about the identification.
[88]
In view of the fact that Dibben’s original description of
the driver arguably rested on features that did not match the
appellant’s appearance, the trial judge should have drawn that
fact specifically to the attention of the jury in his instructions
on the need to proceed with caution.
(iii) Suzanne Nadon
[89]
Nadon’s identification of Ms. Bain also exhibited certain
frailties, including the following:
·
the woman was a stranger to her;
·
her view was at night and through trees and other
foliage;
·
she only caught a brief glimpse of the woman and
only saw her right side profile from behind and did not see the
woman’s face;
·
when questioned by the police she was shown a single
photograph of Ms. Bain for identification purposes; and
·
her memory of the woman’s description was improved
to some extent during hypnosis.
[90]
The trial judge erred by failing to give the jury any
warning regarding Nadon’s evidence as he did not include her
evidence in his general “boiler-plate” warning as to the dangers
of eyewitness identification evidence. In view the importance of
Nadon’s identification of Ms. Bain as the woman involved in an
argument more or less at the same time the appellant claimed he
and Ms. Bain were making love, a caution dealing with the specific
frailties we have identified was required.
[91]
In our view, the trial judge’s failure to give the jury
adequate instructions with respect to the eyewitness
identification evidence of Marianne Perz, David Dibben and Suzanne
Nadon constitutes an error of law that could have affected the
verdict.
V. INSTRUCTIONS TO
THE JURY ON ALIBI
[92]
It will be recalled that at trial, Crown counsel took the
position that the killer was the man seen by Marianne Perz sitting
next to Ms. Bain at the picnic table at 5:40 p.m. on June 19. It
followed that if the appellant was at home with his family at that
time, as he claimed, he could not, on the Crown’s theory, have
been the killer.
[93]
In view of the Crown’s position, it was agreed that the
appellant’s evidence as to his whereabouts at 5:40 p.m. would be
treated as alibi evidence. The trial judge instructed the jury
accordingly.
[94]
In his instructions, the trial judge correctly told the
jury that if they did not accept the appellant’s alibi or if it
did not raise a reasonable doubt in their minds, they were to “put
it aside and consider the rest of the evidence”. Immediately
thereafter, he correctly warned the jury that rejection of the
appellant’s alibi did not mean that he was automatically guilty.
The trial judge worded the caution as follows:
What you cannot say is
this: Well, we don’t believe the alibi and it doesn’t raise a
reasonable doubt, therefore, we automatically find him guilty. You
can’t say that.
The trial judge then made it
clear that in order to convict the appellant, the jury had to be
satisfied, on evidence they accepted, that the appellant’s guilt
had been proved beyond a reasonable doubt.
[95]
As indicated, the foregoing instructions were legally
correct. Unfortunately, they were accompanied by two significant
legal errors.
1.
Non-direction on the Issue of Fabrication
[96]
The trial judge told the jury on more than one occasion
that if they not only disbelieved the appellant’s alibi but were
further “satisfied [that it] was given to deceive the police”,
they could use that finding as evidence “capable of supporting the
identification” evidence given by witnesses such as Marianne Perz.
In other words, a fabricated or concocted alibi designed to
deceive could be used as positive evidence of guilt.
[97]
In so instructing the jury, the trial judge made no mention
of the fact that independent evidence was needed to ground a
finding of fabrication; nor did he point out that the requirement
for independent evidence meant evidence apart from evidence
showing the alibi to be false. His failure to include those
instructions constituted error. See R. v. O’Connor (2002),
170 C.C.C. (3d) 365 at paras. 38 and 42 (Ont. C.A.).
[98]
Those deficiencies were compounded by the trial judge’s
further failure to identify for the jury the evidence that was
capable of constituting independent evidence of fabrication. In
this case, that deficiency was particularly serious. On the trial
record, there was only one possible item of independent evidence
that the jury could consider in deciding whether the appellant’s
alibi evidence for 5:40 p.m. was the product of fabrication. That
evidence came from Kaedman Nancoo. To use his evidence in that
fashion, it would have been necessary for the jury to find that
the appellant had attempted to have Nancoo falsify his evidence as
to the time he apparently saw the appellant in the weight room (between
5:00 and 5:30 p.m.) on the evening of June 19. Failure to point
this out meant that the jurors were given a free hand to rummage
through the evidence and select any items that, in their opinion,
went to show that the appellant’s alibi evidence for 5:40 p.m. was
a product of fabrication.
[99]
As indicated, leaving the jury to rummage about the
evidence in that fashion was particularly perilous in this case.
Depending on the jury’s view of it, there was ample evidence from
which they could conclude that the appellant’s alibi evidence for
5:40 p.m. was false. Indeed, the whole of the Crown’s case could
be used for that purpose. It is axiomatic however, that evidence
capable of showing an alibi to be false does not automatically
translate into evidence capable of showing that it has been
fabricated. Were it otherwise, there would be no need for the
stringent test that must be met before a finding of fabrication,
as opposed to falsity, can be made. Having relied upon certain
evidence to find that an alibi is false, the jury cannot, as a
matter of course, turn around and use the same evidence to find
that the alibi was fabricated. That would constitute impermissible
bootstrapping and it would effectively nullify the time-honoured
distinction between a false alibi, which has no evidentiary value,
and a fabricated alibi, which can be used as circumstantial
evidence of guilt.
[100]
Given the significance of Marianne Perz’s identification evidence,
it was essential that the jury be properly instructed on the
stringent test that must be met before they could find fabrication
and use the appellant’s alibi evidence for 5:40 p.m. as positive
evidence supportive of her testimony. The trial judge’s failure to
so instruct the jury amounted to error.
2.
Mis-direction Relating to Assessment of Alibi Evidence
[101]
After completing his instructions on suicide, the trial judge told
the jury that if they were satisfied beyond a reasonable doubt
that Ms. Bain did not commit suicide, they should “go on to
consider the next question and that is alibi”. He then introduced
the topic as follows:
Counsel for the accused,
Robert Baltovich, raises the defence of alibi. That is, the plea
that when the alleged offence took place the person was elsewhere.
There is no duty, there is
no obligation, upon the accused to prove anything.
However, if you believe
the alibi evidence, or if it raises a reasonable doubt in your
mind, then once again you must say “not guilty”.
[102]
As indicated, based on the position of the parties at trial, it
was agreed that if, contrary to Marianne Perz’s evidence, the jury
believed or had a reasonable doubt that the appellant was not the
man seated beside Ms. Bain at the picnic table at 5:40 p.m., then
the appellant was entitled to be acquitted.
[103]
With that in mind, having introduced the topic of alibi, the trial
judge spent the next ninety-eight pages of his charge reviewing in
painstaking detail the evidence of every witness who had anything
to say about the whereabouts of the appellant and Ms. Bain on
Tuesday, June 19, the day Ms. Bain went missing. The review
included the appellant’s version of the day’s events based upon
his statements to the police. It also included an extensive review
of the evidence given by the appellant’s family placing him at
home at 5:40 p.m., and an equally extensive review of Perz’s
evidence placing him at the picnic table beside Ms. Bain at that
time.
[104]
After concluding the evidentiary review, the trial judge continued
as follows:
Ladies and gentlemen of
the jury, after being taken through – I must say laboriously,
undoubtedly tediously – all of that evidence about and touching
upon alibi, how say you:
Does the evidence of alibi
persuade you that Robert Baltovich was elsewhere and could not
have been the person on the picnic table beside Elizabeth Bain?
Does the evidence dealing
with alibi raise a reasonable doubt in your mind?
If you accept the evidence
of alibi as set out in the statements of Robert Baltovich, and the
evidence of his mother, his brother, his sister-in-law, if you
accept that evidence of alibi or it raises a reasonable doubt,
then you must say “not guilty” [emphasis added].
[105]
The trial judge then identified the competing positions of the
Crown and the defence, following which he reminded the jury of the
pitfalls and perils of eyewitness identification evidence and the
“special need for caution before convicting in reliance upon the
correctness” of that identification. He then continued as follows:
If after a careful
examination of the evidence, in light of all of the circumstances,
with due regard to all the other evidence in the case, you are
satisfied beyond a reasonable doubt that the accused committed the
offence based on the identification, then you will find him guilty.
If after you carefully
review all of the evidence touching and regarding the question
of alibi, you may say: I believe the alibi, or you may say:
the alibi evidence creates a reasonable doubt in your mind, then
in either case you must say “not guilty” and your deliberations
would end [emphasis added].
[106]
The second paragraph of that passage causes us concern. Unlike the
first paragraph, where the trial judge correctly instructed the
jury that they were to consider “all of the circumstances” and
“all of the other evidence” in deciding whether they could safely
act on the identification evidence to convict, in the second
paragraph, he restricted the jury to “the evidence touching and
regarding the question of alibi” in deciding whether they could
act on the alibi evidence to acquit.
[107]
Significantly, the words “touching and regarding the question of
alibi” found in the second paragraph are virtually identical to
the words used by the trial judge following his extensive review
of the “alibi evidence” where he said: “after being taken through
… all of that evidence about and touching upon alibi”.
[108]
Our concern with the second paragraph is that it may have left the
jury with the impression that in assessing the worth and strength
of the appellant’s alibi evidence, they could only look to the
evidence that the trial judge had reviewed as opposed to the
evidence as a whole.
[109]
If the jury was left with that impression, it was clearly
erroneous. In assessing the worth of the appellant’s alibi
evidence, the jury was entitled to consider and weigh it in the
context of the whole of the evidence, including other evidence
favourable to the appellant that the trial judge did not mention
in his summary of the “evidence touching and regarding the
question of alibi”.
[110]
To take but one example, in assessing the appellant’s alibi for
5:40 p.m. on June 19, the jury was entitled to consider John
Elliott’s testimony in which he placed (with eighty percent
certainty) Ms. Bain’s car in the Lake Scugog area on Wednesday
morning, June 20, at a time when the appellant was almost
certainly at home in bed. Elliott’s evidence did not form part of
the evidence reviewed by the trial judge “touching and regarding
the question of alibi”. Nonetheless, it was important for the jury
to know that they could consider it, along with any other evidence
favourable to the appellant, in assessing the worth of his 5:40
p.m. alibi evidence.
[111]
In our view, the error in question was serious. It went to the
heart of the appellant’s defence. In the circumstances, we cannot
say that the verdict would necessarily have been the same had it
not been made.
VI. FAIRNESS OF JURY CHARGE
[112]
The appellant submits that the charge to the jury was unfair in
many respects and that it “effectively sealed [his] fate”.
Specifically, he complains that it was “overwhelmingly supportive
of the Crown’s position” and that “the trial judge’s own opinion
of [his] guilt could not have been left in doubt for the jury”.
[113]
In addressing this ground, we do not find it necessary to review
all of the alleged failings and deficiencies raised by the
appellant. In sum, for reasons that follow, we are satisfied that
the charge lacked fairness and balance and that it compromised the
appellant’s right to a fair trial. Read as a whole, it unduly
promoted the case for the Crown and effectively ignored and
denigrated the case for the defence. The examples that we have
chosen to illustrate this are not meant to be exhaustive. Rather,
they represent some of the more telling features of the charge
that speak to its overall lack of fairness and balance.
[114]
Before reviewing those features, we think it important to
underscore the significance of the charge to the jury and the need
for trial judges to be fair and balanced in their recitation of
the evidence and their review of the position of the parties.
[115]
The charge to the jury is a central feature in any jury trial. In
the context of our adversarial process, its strength lies in its
objectivity. In an otherwise partisan atmosphere, the jury is
entitled to look to the charge to guide it safely through its
deliberations and assist it in arriving at a true verdict
according to law.
[116]
Much has been said in recent years about the complexity of jury
charges and the need to simplify them. Trial judges face a
difficult task in this regard, especially when it comes to
explaining complicated issues of law. In R. v. Jacquard
(1997), 113 C.C.C. (3d) 1 at para. 2 (S.C.C.), Chief Justice Lamer
observed that while “accused individuals are entitled to properly
instructed juries”, there is “no requirement for perfectly
instructed juries”. Those words are as true today as they were
then. No one expects perfection in a jury charge. Mistakes are
bound to occur.
[117]
But not all mistakes are alike. Some can easily be avoided.
Failing to provide the jury with a fair and balanced charge is one
of them. There is no justification for jury charges that are not
even-handed.
[118]
We cannot stress enough the importance of a fair and balanced
charge. A charge that meets those requirements is much more likely
to withstand appellate review than one that does not: See
Jacquard, supra at para. 56. In practical terms, this may mean
the difference between dismissing the appeal, and ordering a new
trial with all of its attendant costs and hardships. Our system of
justice is already overburdened. We do not need to add to this
problem with new trials that could have been avoided. Further, s.
11(d) of the Charter provides that every person charged
with an offence has the right to a fair trial. This is a
fundamental right. Unfair and unbalanced charges undermine this
right.
[119]
With those observations in mind, we return to the trial judge’s
charge and commence our fairness analysis with the trial judge’s
treatment of the issue of suicide.
1. The Issue of Suicide
[120]
By the end of the trial, the issue of suicide remained a live
issue, but just barely.
[121]
In his closing address, which spanned over one hundred pages of
transcript, defence counsel spent about a page and a half on the
subject. He reminded the jury of Ms. Bain’s suicidal tendencies,
her writings on the subject, her previous feigned suicidal
gestures and her hidden emotional and psychological difficulties.
Notably, however, he did not suggest that Ms. Bain had actually
committed suicide, nor did he urge the jury to consider suicide as
a viable possibility. Indeed, immediately following the portion of
his address to which we have just referred, he continued as
follows:
What we come to though is
the defence theory, which I told you earlier, we hope, is
going to show you not only the evidence here doesn’t point to
Robert Baltovich, but it may very well point to somebody else
being responsible for this young lady’s disappearance [emphasis
added].
[122]
That statement accurately identified the defence position. A
review of the defence closing address attests to this. Most of
this address was taken up with an attack on the main Crown
witnesses. It was designed to show that the Crown’s case was weak
and that the evidence fell short of establishing that the
appellant was the person who killed Ms. Bain. The last part of the
address focused on the defence position that someone other than
the appellant likely killed her. In short, by the end of the
closing address, if suicide played any role at all in the defence
case, it was a modest one at best.
[123]
The defence position was not lost on the Crown. In his closing
address, Crown counsel noted that defence counsel had only
suggested “a little bit in his closing either this was
suicide or a disappearance, if the Crown had proved she is dead …
she might have killed herself or it may be suicide [emphasis added].”
Crown counsel then spent the next two and a half pages debunking
the notion of suicide. As for the other ninety-three pages of his
address, eighty-nine of them were devoted to what he knew to be
the only real issue at trial, namely, whether the appellant was
the person who murdered Ms. Bain.
[124]
Against that backdrop, we do not understand why the trial judge
felt the need to devote twenty-five pages of his charge to the
issue of suicide. His treatment of the matter was, to say the
least, unfortunate. If not by design, it certainly had the effect
of devaluing the appellant’s primary defence by conveying the
impression that in staying with the defence of suicide, the
defence was grasping at straws. Moreover, the trial judge, on his
own motion, effectively converted the appellant’s initial belief
that Ms. Bain may have committed suicide into evidence of after-the-fact
conduct indicative of his guilt. That inference was one that even
Crown counsel did not ask the jury to draw, and rightly so. In our
view, it was not available on the evidence.
[125]
In the course of his twenty-five pages of instructions, the trial
judge referred the jury to virtually every piece of evidence given
by every witness on the subject of suicide. Much of this involved
a comprehensive review of every comment made by the appellant to
the police and others in which he mentioned suicide as a
possibility. Following that review, the trial judge launched into
the following series of rhetorical questions:
Ladies and gentlemen, who
was it from 6:30 on June 20th, 1990 onwards who appears
to have been pushing the idea of suicide? Who seems to be
promoting the idea?
You may ask yourself: why
would Robert Baltovich want to go about telling everyone that “his
suicidal girlfriend had gone missing”?
Does Robert Baltovich have
a better understanding and knowledge of Elizabeth than her parents,
her physician, her siblings and her best girlfriend?
Does Robert Baltovich have
a self-interest in promoting the idea of Liz’s suicide?
Were the Bain’s engaged in
some kind of a hush-up to prevent the police from knowing that
Elizabeth Bain was a suicide waiting to happen?
[126]
The tone and content of the rhetorical questions leave little
doubt as to where the trial judge stood on the matter. Not only
did he hold the defence of suicide up to contempt and ridicule, he
also conveyed a less than subtle message to the jury that the
appellant was “promoting the idea” to throw the police off track
and shield himself from detection. In other words, the jury could
use the appellant’s stated belief that Ms. Bain might have
committed suicide as after-the-fact conduct indicative of his
guilt.
[127]
In our view, it was wrong and unfair for the trial judge to give
the issue of suicide the extensive treatment he did, only to
demean it in the end. Moreover, in instructing the jury, there was
no need to detail what the appellant may have said to the police
and others about the matter. Based on Ms. Bain’s diary entries,
her conversations with others and her attempts (feigned or
otherwise) to harm herself in the past, there was certainly a
basis for thinking, at least initially, that she may have taken
her own life. In view of that, to take the appellant’s so-called
“promotion” of the evidence and convert it into after-the-fact
conduct indicative of guilt was to put the cart before the horse.
It only worked if one assumed his guilt. Circular reasoning of
that sort is impermissible. Perhaps that is why Crown counsel did
not invite the jury to engage in it. Regrettably, the trial judge
left the jury with a different impression that was erroneous.
[128]
In sum, we believe that the trial judge’s treatment of the subject
of suicide was unfair and prejudicial to the appellant.
2. The Issue of Motive
[129]
At the conclusion of his instructions on alibi, the trial judge
told the jury that if they were to reject the appellant’s alibi
evidence, they had to then go on and decide whether on the balance
of the evidence the Crown had proved its case against him beyond a
reasonable doubt. He then instructed the jury on the law of murder
and manslaughter, following which he turned to the linchpins of
the Crown’s case – opportunity, motive and after-the-fact conduct
indicative of guilt – and proceeded to review the evidence relied
upon by the Crown to establish each. He commenced that portion of
his instructions as follows:
What evidence has the
Crown presented that Robert Baltovich caused the death of
Elizabeth Bain in circumstances that amount to manslaughter or
murder? [emphasis added].
[130]
The trial judge first addressed the issue of opportunity. In the
space of one page, he reminded the jury of the witnesses whose
evidence he had already reviewed in the context of the appellant’s
defence of alibi. Foremost among them was Marianne Perz, who had
placed the appellant with Ms. Bain at the picnic table at
5:40 p.m. on June 19.
[131]
The trial judge next turned to the issue of motive. After
instructing the jury on the applicable law, he commenced his
review of the evidence as follows:
What is the motive that
the Crown alleges in this case?
Crown counsel alleges that:
(a) the romantic
relationship between Elizabeth Bain and Robert Baltovich had been
severed by Elizabeth Bain.
(b) that Robert Baltovich is a very jealous, possessive
man.
(c) that Robert
Baltovich decided that “if I couldn’t have Elizabeth Bain, no one
would”, and in order to accomplish that purpose, he murdered her.
What is the evidence that the relationship had been terminated, or
was terminally ill, or was stuck on some big rocks?
[132]
The trial judge then spent the next forty-one pages reviewing in
painstaking detail the evidence that supported the Crown’s
position. Throughout the entire forty-one pages, apart from one or
two sentences, he virtually ignored the evidence supportive of the
appellant’s position that his relationship with Ms. Bain, though
not perfect, was far from over.
[133]
By way of example, Ms. Bain’s mother, Julita, testified that in
the week prior to her daughter’s disappearance, she saw no
problems in the relationship. She further stated that Elizabeth
always wore the ring that she had received from the appellant.
From her perspective, it was apparent that her daughter and the
appellant were very much in love. She also testified that ten days
before her disappearance, Elizabeth gave the appellant several
graduation presents consisting of a watch, flowers and a poem.
[134]
Arlene Coventry, one of Ms. Bain’s closest friends, testified that
in May 1990, one month before her disappearance, Elizabeth
confided in her that she was adamant about continuing her
relationship with the appellant and that she wanted to marry him.
She also told Ms. Coventry about a wonderful romantic weekend that
she and the appellant had spent in Niagara Falls several weeks
earlier. Finally, she recalled speaking to Elizabeth on the Sunday
night prior to her disappearance. At that time, Elizabeth appeared
to be happy and seemed fine.
[135]
Jim Isaacs, a friend of both the appellant and Ms. Bain, testified
about a letter that he received from Elizabeth in April 1990 in
which she complained about her relationship with the appellant and
spoke of a desire to leave him. After receiving the letter, Isaacs
spoke to Elizabeth on several occasions. From his conversations
with her, he believed that she had overcome her problems. She and
the appellant were “dating again regularly … and things seemed to
be getting better, the idea of breaking up was not there”. Isaacs
further testified that he spoke to Elizabeth a week or two prior
to her disappearance. At that time, she told him that things were
fine between her and the appellant.
[136]
Laura Pallone, a friend of Ms. Bain’s, received a letter from
Elizabeth dated June 18, 1990, the day before her disappearance.
The letter was happy in tone and content. In it, Elizabeth advised
Pallone for the first time of her relationship with the appellant.
She explained that she had not mentioned the appellant before
because in the spring, when she and Pallone had met, she was
“going through a major downer time with him”. The letter continued:
And you were so happy with
Erminio. I just love to hear you talk about him because it made
you glow! And that happy feeling kind of affected me in a good
way too [emphasis added].
[137]
These examples serve to illustrate that there was evidence
favourable to the appellant on the issue of motive. And yet, in
forty-one pages of instruction, the jury heard virtually none of
it. At that stage of the charge, the jury was being asked to
consider whether the case for the Crown was sufficient to convict.
Motive was one of the linchpins of the Crown’s case. To the
extent that there was evidence favourable to the appellant on the
subject, he was entitled to have it placed before the jury. The
trial judge’s failure to include such evidence resulted in a
review that was unfair, unbalanced and prejudicial to the
appellant.
[138]
Before leaving the issue of motive, we wish to comment briefly on
one aspect of the trial judge’s legal instruction. The trial judge
instructed the jury on the use they could make of Ms. Bain’s diary
entries and her comments to others about the state of her
relationship with the appellant. In effect, he told the jury that
that evidence was relevant to Ms. Bain’s state of mind and
attitude towards the appellant and to the issue of motive.
Unfortunately, however, he neglected to tell the jury that in
assessing the weight to be ascribed to that evidence, the
credibility and reliability of the witnesses who testified about
what Ms. Bain may have told them was something they should take
into account. He also failed to make it clear that the evidence
was not admissible for the truth of its contents. While not fatal,
it would have been preferable had the jury received this
additional legal instruction.
3. Instructions on
After-the-fact Conduct
[139]
After completing his instructions on motive, the trial judge
turned to the third branch of the Crown’s case namely, evidence of
consciousness of guilt (now referred to as after-the-fact conduct
indicative of guilt). The trial judge commenced this portion of
the charge with a brief statement of the applicable legal
principles.
He then began a review of various “matters … relied upon by the
Crown to show consciousness of guilt.”
[140]
The first such matter centred on the Crown’s theory that in the
early morning of Friday, June 22, the appellant moved Ms. Bain’s
body from Colonel Danforth Park to Lake Scugog. On any view of the
case, that was surely one of the most devastating items of after-the-fact
conduct put against the appellant. If proved, it virtually sealed
his fate. The inferences flowing from it were as obvious as they
were unanswerable.
[141]
It was therefore essential that the jury be equipped with the
tools needed to make that crucial factual determination. On this
record, that meant the need for special care in assessing the
evidence of David Dibben. Without question, his eyewitness
identification of the appellant as the driver of Ms. Bain’s car on
Friday, June 22, was of particular importance to the Crown.
Similarly, John Elliott’s evidence was of particular significance
to the defence. It too required special care.
[142]
As previously discussed, the trial judge did not adequately equip
the jury to deal with these witnesses. In the case of Dibben, the
trial judge’s general instructions on the dangers of eyewitness
identification were insufficient. In the case of Elliott, it was
important for the jury to understand that in assessing his
evidence, while they should look to all of the frailties
associated with it, they were not to approach it from the point of
view that it would be dangerous to rely on his evidence to
acquit the appellant.
[143]
As it is, the trial judge merely engaged in an extensive recital
of the evidence of Dibben and Elliott. At the end of the review,
which included a review of other testimony bearing on the matter,
the trial judge posed the following question to the jury:
Does all that evidence
persuade you that Robert Baltovich was the driver of Elizabeth
Bain’s car, the one that Mr. Dibben saw on June 22nd,
and the same date or another date that Mr. Elliott saw the car,
at about 6:00 o’clock in the morning? The same car that was put
back at the Three-R Auto Body Shop and, so-to-speak, “discovered”
on the same Friday afternoon [emphasis added].
[144] Pausing
there, we note that the question was worded in a manner that was
unfair to the appellant. Whether by design or effect, it conveyed
the erroneous impression that little turned on the timing of
Elliott’s reported sighting of Ms. Bain’s car. That, of course,
was not the case. In his testimony, Elliott claimed that he was
eighty percent sure that he had seen Ms. Bain’s car on Wednesday
morning, June 20, not Friday morning, June 22. If his Wednesday
recollection was accurate, then it is a virtual certainty that the
appellant was home in bed at the time.
[145]
Having framed the crucial question unfairly, the trial judge
followed up with a series of rhetorical questions that admitted to
only one answer and could only have served to prejudice the
appellant in the eyes of the jury and diminish his defence. The
questions are reproduced below:
If Robert Baltovich is the
driver of that car, where is he coming from at that hour in that
car?
Does Robert Baltovich’s
presence in that car explain his reason for not returning Eric
Genuis’s telephone calls of late Thursday night and early Friday
morning? You recall that Robert Baltovich left 42 Division at
12:50 a.m. after Exhibit 98 had been completed. He didn’t call
Eric Genuis, he didn’t return the calls that night although the
requests left by Eric Genuis was “call any time”.
…
If Robert Baltovich was
driving at 6:00 o’clock in the morning at Highways 7 and 12 on
June 22nd, where was he coming from?
Was he returning from the
Lake Scugog area, a marshy area, which it is apparent from the
evidence he knows well from his days as a YMCA voyageur senior
counsellor?
What was he returning from
doing?
If this is the car, and he
is the driver – this is the car that has the DNA and the blood in
the back, as you see in the photos.
[146]
Rhetorical questions of that nature may have a place in the
Crown’s closing address. They should be avoided in the jury charge,
lest the trial judge be seen as taking up the Crown’s cause and
casting off the mantle of objectivity.
[147]
The above example is but one illustration of the trial judge’s
improper use of rhetorical questions. Many are found in the
remainder of his “consciousness of guilt” instructions. We see no
need to detail them. Suffice it to say that taken cumulatively,
they indicate the trial judge’s contempt for the defence position.
In our opinion, that view would not have been lost on the jury.
[148]
Apart from the unfairness already identified, the trial judge’s
instructions on consciousness of guilt were entirely one-sided.
Depending on their view of it, there was evidence from which the
jury could conclude that the appellant was legitimately
cooperating with the police and doing everything in his power to
locate Ms. Bain. None of that evidence was mentioned to the jury
as a counterweight to the Crown’s allegations. In fairness, it
should have been.
VII.
CONCLUSION ON JURY CHARGE
[149]
The charge to the jury was unfair and unbalanced. It also
contained significant errors of law that were prejudicial to the
appellant. This is not a case in which the curative proviso can be
applied to uphold the conviction. The appellant’s conviction for
second-degree murder must accordingly be set aside.
VIII. REMEDY
[150]
The appellant asks this court to allow the appeal, quash the
conviction and enter an acquittal. Alternatively, he submitted
for the first time in oral argument that we should grant a stay of
proceedings. As the final alternative, he submits that the
conviction should be quashed and a new trial ordered.
[151]
On the basis of the legal errors and the overall unfairness of the
charge, we have determined that the appeal should be allowed and
the conviction quashed. However, after careful consideration of
the evidence at trial and the enhanced record on appeal, we are
not persuaded that an acquittal is appropriate given that we are
satisfied that there is evidence upon which a properly instructed
jury, acting judicially, could reasonably convict. We further
conclude that this is not one of those “clearest of cases” in
which a stay is warranted. Consequently, we are of the view that
the proper disposition is to order a new trial.
[152]
In view of this determination, as indicated, it would be
inappropriate to engage in a detailed review of either the trial
evidence or the fresh evidence. Thus, in setting out our reasons
for rejecting the appellant’s request for an acquittal or a stay
of proceedings, we have purposefully kept our discussion of the
evidence to a minimum.
1. Acquittal Based on Unreasonable
Verdict
[153]
The appellant submits that the jury’s verdict was unreasonable
because it depended on shaky eyewitness identification evidence
and a Crown theory that was fanciful and contrary to evidence
supportive of his innocence.
[154]
The test to be applied in determining whether a verdict is
unreasonable is clear. The appellate court is to independently
examine and assess the evidence and decide whether, on a totality
of the evidence, a properly instructed jury, acting judiciously,
could have convicted. See, for example, R. v. Biniaris
(2000), 143 C.C.C. (3d) 1 (S.C.C.).
[155]
In R. v. H.R.T. (2001), 159 C.C.C. (3d) 180 at para. 31 (Ont.
C.A.), this court explained the test in these terms:
[T]he question to be asked when determining whether a verdict is
unreasonable or unsupported by the evidence is whether a properly
instructed jury, acting judicially, could reasonably have rendered
the verdict. This appellate function requires that this question
be asked through the lens of experienced jurists and it requires
that the conclusion reached not conflict with the bulk of judicial
experience. It is imperative that the court of appeal articulate
the basis upon which it concluded that the jury reached an
unreasonable verdict; it is insufficient for the court to simply
express that there is a “lurking doubt”. While vague unease or a
lingering doubt may be a signal that the verdict was reached in a
non-judicial manner, the court must proceed with an analysis of
the evidence to justify interfering with the conviction.
(a) The Trial Evidence
[156]
As indicated, the Crown relied upon evidence of opportunity,
motive and after-the-fact conduct indicative of guilt to prove its
case. We have already outlined in general terms the nature of
that evidence and we see no need to repeat it.
[157]
The appellant challenged each branch of the Crown’s case and
depending on the jury’s assessment of it, there was evidence
supportive of his position that he had no hand in Ms. Bain’s
killing. We have taken that evidence into account in our
assessment. We have also considered the frailties associated with
two of the more significant Crown witnesses, Marianne Perz and
David Dibben.
[158]
That said, it is trite law that fact-finding is properly the
domain of the jury. To acquit the appellant, we would have to
weigh the evidence to a far greater degree than permitted. The
conflicting evidence raises questions that are factual in nature
and therefore best dealt with by a jury. In our view, the outcome
of this case rested largely on the jury’s assessment of a myriad
of facts and circumstances that had to be weighed and considered.
Depending on the jury’s view of it, we believe that had they been
properly instructed, there was evidence upon which they could
reasonably convict.
(b) The Fresh Evidence
[159]
The appellant’s trial began ten weeks after the Supreme Court of
Canada delivered its judgment in R. v. Stinchcombe, [1995]
1 S.C.R. 754. The Crown made pre-trial disclosure based on pre-Stinchcombe
practices. In 1999, counsel for the appellant undertook a
post-conviction Stinchcombe process and discovered
materials that fall into five categories:
(1)
the appellant’s attendance at Ms. Bain’s classroom on the
night of her disappearance;
(2)
an undisclosed statement of Cathy Bain;
(3)
missing pages from Ms. Bain’s diary;
(4)
the “Dear John” letter the appellant supposedly received
from Ms. Bain but that in fact was her diary entry for September
16, 1988; and
(5)
the police search of Old Kingston Road.
[160]
The appellant asks that this previously “undisclosed” evidence be
admitted.
In addition, the appellant seeks to introduce fresh evidence
linking Paul Bernardo to Ms. Bain’s disappearance. For
convenience, the previously “undisclosed” evidence and the fresh
evidence will be referred to together as the “fresh evidence”.
[161]
The appellant asks this court to consider the reasonableness of
the trial verdict after taking into account all grounds of appeal
as well as the fresh evidence. While we have dealt with the
grounds of appeal separately, we accept that we are to consider
the fresh evidence in the context of the whole of the appeal.
[162]
The test for ordering an acquittal based on fresh evidence is high;
the evidence must be “clearly decisive” of innocence. See R.
v. Stolar, [1988] 1 S.C.R. 480. For the purposes of deciding
this question, we have assumed that all of the fresh evidence is
admissible. Even on that basis, we are of the view that the fresh
evidence, whether considered on an item-by-item basis or in its
totality, is not “clearly decisive” of the appellant’s innocence.
Thus, an acquittal is not warranted.
(i)
The Appellant’s Attendance at the Classroom
[163]
The appellant told the police in several interviews that on
Tuesday, June 19, 1990, the day that Ms. Bain disappeared, he went
to find her at 9:00 p.m. when her Abnormal Child Psychology class
ended. He said that when he arrived at the class, he saw a man
standing outside the classroom. Thinking that the man might be
there to meet Ms. Bain, he hid himself on a balcony above the
classroom from where he could watch the students leave.
[164]
At trial, the Crown led evidence that suggested that the appellant
may not have gone to the classroom as he maintained. Two witnesses
now support the appellant’s statements. Mr. Naz Tonbazian knew
the appellant from the campus weight room and recalled seeing him
arrive at the classroom and stand at the top of the stairs
overlooking the classroom exit on the evening in question. Ms.
Roula Mandas, Tonbazian’s girlfriend at the time and a member of
the Abnormal Psychology class, confirmed that Tonbazian met her
after class that night. The police located and interviewed
Tonbazian in the summer of 1990 but that fact was not communicated
to defence counsel and they were unaware of it at the time of
trial.
[165]
The appellant argues that his attendance at the classroom “should
be decisive of his appeal and, in the context of the whole case
surrounding Elizabeth Bain’s murder as it is now known, his
innocence”.
[166]
We do not see this evidence as conclusive of the appellant’s
innocence. We accept that the evidence shows that the appellant
was telling the truth when he said he had gone to Ms. Bain’s
classroom at 9:00 p.m. on the night in question and that a jury
might consider it as evidence pointing to his innocence. We do
not, however, accept that it proves he was innocent.
[167]
There are a number of inferences that can reasonably be drawn from
the appellant’s attendance at the classroom that night. For
example, if he did believe that Ms. Bain was seeing another man,
he may have gone to the classroom after killing her and secreted
himself away to see if she had arranged to meet someone else.
Another possible inference is that he wanted to know if people in
the class were aware that Ms. Bain was missing. If he had killed
Ms. Bain, he would have wanted to know whether a search for her
was likely to begin that evening or whether he had additional time
to deal with her car and body. While this fresh evidence may
strengthen the appellant’s credibility (we emphasize the word
“may” because the evidence of Tonbazian raises other questions
about the appellant’s credibility that the triers of fact will
have to sort out), it does not diminish any of the essential
aspects of the Crown’s case in respect of motive, opportunity and
after-the-fact conduct described above.
(ii)
Cathy Bain’s Prior Statement
[168]
Cathy Bain testified about her sister’s relationship with the
appellant. Among other things, she testified about an incident on
Thursday evening, June 16, five days before Elizabeth’s
disappearance, in which her sister had said “Rob is such an
asshole”. This testimony is consistent with Cathy Bain’s
statements to the police that were disclosed to the appellant
prior to trial. However, the appellant has now discovered that
Cathy Bain gave a statement to the police in which she said that
this incident occurred the night before her sister disappeared,
not five days earlier. The appellant submits that this confusion
around dates could have been used to “completely undermine” Cathy
Bain’s credibility.
[169]
Even if we were to accept the appellant’s argument on this point,
there was other evidence that the appellant’s relationship with Ms.
Bain was strained and on the verge of collapsing. Thus, this
fresh evidence does little, if anything, to diminish the Crown’s
case on motive.
(iii)
Missing Diary Pages
[170]
With permission, the appellant took some of the pages of Ms.
Bain’s dairy from her parents’ home the day after she disappeared.
Cathy Bain testified that he did not return all of the diary pages.
The fresh evidence suggests that she may have been in error in
that regard. However, it is by no means clear that all of the
diary pages were returned. Assuming that they were, this can
scarcely be said to be conclusive of innocence. At most, it could
be used to bolster the appellant’s credibility and cast further
doubt on Cathy Bain’s credibility.
(iv)
The Dear John Letter
[171]
The appellant told Ms. Bain’s father and the police that on
Saturday, June 16, 1990, she gave him an entry from her diary that
was dated September 16, 1988. The appellant said that he gave the
document to Ms. Bain’s father after she disappeared but Mr. Bain
denied receiving it. The Crown pointed to the evidence of Alan
Heys, a friend of the appellant, to argue that what the appellant
had received was a “Dear John” letter. The Crown relied on this
portrayal of the letter as circumstantial evidence relating to
motive.
[172]
The appellant contends that he has now discovered, in the trial
Crown’s file, a document that he claims is the diary entry that he
received from Ms. Bain. He suggests that the police must have
seized the document from the Bain residence.
[173]
The message in the diary entry is confusing. It is not a “Dear
John” letter, in that it does not say that Ms. Bain is ending her
relationship with the appellant, but neither is it an affirmation
of her love for him. It is not clear what Ms. Bain meant to
signify by giving the diary entry to the appellant. Again, while
this evidence may show that the appellant was truthful in his
account of the dairy entry and what he did with it, it cannot be
said to be conclusive of innocence. At most, it weakens the
Crown’s theory that Ms. Bain was attempting to break off her
relationship with the appellant in the days shortly before her
disappearance. However, there was other evidence from which the
jury could make that determination.
(v)
The Police Searches of Old Kingston Road
[174]
As indicated, it was the Crown’s position at trial that the
appellant moved Ms. Bain’s body from the Colonel Danforth Park to
Lake Scugog in the early morning hours of Friday, June 22, 1990.
The appellant now advances fresh evidence that the police searched
Colonel Danforth Park on June 21 and did not locate the body. The
appellant argues that had the defence been in possession of this
information, the jury would have been alerted to a weakness in the
Crown’s case.
[175]
In our view, this evidence is of little significance in the
overall scheme of things. The fact that police officers went
through the park was relevant information for the jury. However,
it cannot be said to be conclusive. Its significance is limited,
given the nature and extent of the search. A search of footpaths
by two officers can hardly be equated with the full-scale search
that was planned for Saturday June 23, 1990 and it was the Crown’s
position was that it was this full-scale search that motivated the
appellant to move the body.
(vi)
The Bernardo Evidence
[176]
The appellant sought to introduce a body of fresh evidence to
connect Paul Bernardo with the disappearance of Ms. Bain. This
evidence established the following:
·
Bernardo was in Scarborough during the days prior to
and immediately following her disappearance.
·
Bernardo was very familiar with the Scarborough
campus and Colonel Danforth Park.
·
In the late afternoon of the day that Ms. Bain
disappeared, a man who looked strikingly like Bernardo was seen in
the Humanities Wing of the campus.
·
Bernardo had once met Ms. Bain.
·
Various pieces of the circumstantial evidence
connecting the killer with Ms. Bain and her vehicle were
consistent with Bernardo but not with the appellant.
The Crown
challenges the worth of this evidence and submits that it is
virtually valueless.
[177]
Both parties agree that admissibility of such evidence is to be
determined by application of the test in R. v. Palmer,
supra. Assuming without deciding that the evidence meets that
test, the appellant fairly acknowledges that it is not “clearly
decisive” of his innocence and that it is principally directed
towards the issue of a new trial. We agree with that assessment.
It will be for the presiding judge at the new trial to determine
whether the evidence should be admitted having regard to the
governing principles.
2. Stay Of Proceedings
[178]
For the first time in oral argument, the appellant asked
for a stay of proceedings as an alternative form of relief. The
grounds, he argued, were the weakness of the case against him, the
volume of new or undisclosed evidence, and the amount of time that
he had already served in custody.
[179]
The Crown argues that the request caught it by surprise and
that it was prejudiced as a result. The Crown points out that a
stay is warranted when no other remedy can rectify the harm that
has occurred, but the appellant failed to specify the alleged harm.
Without knowing the specific harm, the Crown says that it lost the
opportunity to create an evidentiary record to counter such
allegations.
[180]
The question of adequacy of notice was recently canvassed
by this court in R. v. Leduc (2003), 176 C.C.C. (3d) 321 (Ont.
C.A.). At para. 72, Laskin J.A. observed that an accused who
applies for a stay of proceedings has an obligation to give the
Crown reasonable notice of the application and the grounds for it.
At para. 73, he stated: “The obvious purpose of notice is to give
the Crown a fair opportunity to respond to the application.”
[181]
Although Leduc considered the question of a stay
within the context of an alleged Charter violation, in our
view the same requirements apply to stay applications in general.
A stay is a draconian remedy. For a court to be in a position to
fairly adjudicate on an application for a stay, it must be assured
that it has the requisite evidence and record before it. Notice
is the mechanism to ensure that such a record exists. While a
court may dispense with the notice requirement where the
circumstances warrant, absent such dispensation, reasonable notice
must be given. Reasonable notice entails both advising the Crown
in a timely fashion that a stay is being sought, and providing the
Crown with a sufficient degree of specificity as to the harm
alleged to have been suffered so that the Crown has a meaningful
opportunity to respond.
[182]
In our view, the appellant satisfied neither of these two
notice requirements. First, given that the first mention of a
stay was during oral argument, it cannot be said that notice was
given in a timely fashion. Second, the appellant did not refer to
specific harm and the grounds upon which he did base his
submission were so general that the Crown was denied a fair
opportunity to respond.
[183]
In any event, quite apart from the issue of notice, we do
not agree that a stay is warranted in this case. While it is
difficult to know precisely the harm upon which the appellant
founds his request for a stay, it is clear to us that this is not
one of those “clearest of cases” that warrants making such an
order.
[184]
The right of a trial judge to direct a stay was
conclusively established by the Supreme Court of Canada in R.
v. Jewitt, [1985] 2 S.C.R. 128. At para. 25, Dickson C.J.
writing on behalf of the court, adopted what this court said in
R. v. Young (1984), 46 O.R. (2d) 520 (Ont. C.A.) about when a
stay can be granted in these terms:
[T]here is a
residual discretion in a trial court judge to stay proceedings
where compelling an accused to stand trial would violate those
fundamental principles of justice which underlie the community’s
sense of fair play and decency and to prevent the abuse of a
court’s process through oppressive or vexatious proceedings.
Dickson C.J. concluded by
stating: “I would also adopt the caveat added by the Court in
Young that this is a power that can be exercised only in the
clearest of cases.”
[185]
In R. v. Taillefer, [2003] 3 S.C.R. 307, Lebel J.
writing for the court, reviewed the principles governing the power
of the courts to direct a stay of proceedings noting, at para.
117, the draconian nature of a stay and reiterating that it is
appropriate only in the “clearest of cases”. In para. 118, Lebel
J. confirmed the need for a careful and balanced analysis of the
interests of the accused and the interest of the public in crime
being punished and in criminal cases being diligently prosecuted.
He concluded by stating that a stay of proceedings is appropriate
and fair where: “(1) the prejudice caused by the abuse in question
will be manifested, perpetuated or aggravated through the conduct
of the trial or by its outcome; and (2) no other remedy is
reasonably capable of removing that prejudice.”
[186]
After a full examination of the facts of this case and
assuming the admissibility of all of the fresh evidence, we have
concluded that there is nothing in what transpired that warrants a
stay. The fact that the case against the appellant was
circumstantial does not and cannot amount to prejudice. There is
no evidence that the appellant suffered irreparable prejudice due
to the alleged non-disclosure, much less prejudice that will be
manifested or aggravated by the conduct of a new trial. There is
also no evidence that the Crown was responsible for the lengthy
delay in bringing on this appeal. Finally, we note that the
appellant (having abandoned the appeal against sentence) would
have a further nine years in custody to serve before he would be
eligible for parole.
[187]
As was the case with the one appellant in Taillefer,
supra (S.C.C.) we are of the view that it would be premature
to order a stay of proceedings. It is stating the obvious to say
that the charge of murder is extremely serious. Much of the fresh
evidence is in written reports or diary entries, documents that
are available to the appellant. No evidence has been lost.
Memories can be refreshed through statements given to the police
and the transcripts from the preliminary inquiry. Indeed, a new
trial will provide the opportunity for both sides to deal with the
fresh evidence with the result that the jury will have the benefit
of more complete evidence upon which to make the necessary and
critical factual determinations. In that sense, the remedy of a
new trial appears reasonably capable of removing any prejudice
suffered. The comments of the Supreme Court of Canada in
Taillefer, supra at para. 122, are appropriate in this regard:
[A]t this stage in
the case, we can only speculate as to the prejudice that the
accused would suffer by reason of the impeachment of the witnesses’
credibility and the loss of opportunities for investigation. The
trial judge will be in a better position to observe and assess the
hurdles that the accused will have to surmount and to determine
whether his right to make full answer and defence and to a fair
trial is jeopardised by holding a new trial. It will be up to
that judge to monitor the conduct of the new trial closely, and if
necessary to assess the consequences of the passage of time and of
the prosecution’s conduct in the overall fairness of the
proceeding being held before him or her.
[188]
Little need be said in relation to abuse of process as
there is no evidence and no allegation to this point that the
actions of the Crown or police in this case amounted to deliberate
wrongdoing or prosecutorial misconduct. This is not a case in
which the Crown’s conduct disentitles it to a new trial.
[189]
In short, it cannot be said that this is one of those
“clearest of cases” in which ordering a new trial would violate
the community’s sense of fair play or bring the administration of
justice into disrepute.
IX. CONCLUSION
[190]
In the result, the appeal is allowed, the conviction is quashed
and a new trial is ordered.
Signature: “M.J. Moldaver J.A.”
“Robert J. Sharpe J.A.”
“E.E. Gillese J.A.”
RELEASED: December 2, 2004 “MJM”
Colonel Danforth Park is a wooded area south of Old Kingston
Road in Scarborough, Ontario. It is close to the University of
Toronto, Scarborough Campus where the appellant and Ms. Bain
attended as students.
In her June 16 diary entry, among other things, Ms. Bain wrote
that she “wanted to put a bullet through [the appellant’s] head,
that he was “becoming a pest”, that she had “to break free and be
alone” and that the appellant was a drain on her.
Elizabeth Bain drove a small silver car distinctively decorated
with artificial fingers apparently caught in the car door.
Elizabeth Bain’s car had a manual transmission. In out-of-court
statements introduced at trial, the appellant first took the
position that he could not drive a car with a manual transmission
and subsequently, that he could do so if he had to but only with
difficulty.
As indicated, the legal instruction is outdated but we see no
need to dwell on the particulars. The current law will guide the
presiding judge at trial.
The Crown took the position that all of the evidence in question
had been properly disclosed. Our analysis does not require us to
finally determine the disclosure issues. |
