COURT OF APPEAL FOR ONTARIO
FINLAYSON, CARTHY and O'CONNOR JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
(Respondent)
Anil K. Kapoor
for the appellant
–and–
PETER STARK
(Appellant)
Susan L. Reid
for the respondent
Heard: April 10 and 11, 2000
On appeal from his conviction of first degree murder on December
1, 1994 following his trial before Glithero J., sitting with a
jury.
FINLAYSON J.A.:
1Peter Stark appeals his conviction on December 1, 1994, following a trial before the Honourable Mr. Justice Glithero and a jury, of the murder in the first degree of Julie Stanton.
Overview of the facts
2On April 16, 1990, at approximately 2:00 p.m., 14 year-old Julie Stanton was seen getting into the appellant’s car. She was never seen alive again and her body was not found until after the appellant’s conviction.
3Up until about one week before the jury was selected, the appellant denied to the police that he was with Julie that day. At the opening of the trial, however, he made the following formal admission:
....at approximately 2 p.m. on Monday April 16, 1990, he [the appellant] picked up Julie Stanton on Lynn Heights drive at the corner of Maury Crescent in Pickering, Ontario. Mr. Stark admits that he was driving a 1979 gray Monte Carlo with a defective exhaust system. Peter Stark admits that he lied to his wife, the Stantons and the Authorities about having met Julie Stanton on April 16, 1990.
4The appellant was the 47 year-old father of one of Julie Stanton’s friends, Kim Stark. He had apparently arranged to meet Julie for lunch that day in Pickering to talk about Kim. He maintained in statements to family that he dropped her off in Pickering before returning to his boat at 1:00 p.m. He said he fell asleep on his boat until 4:00 p.m. and then left to pick-up his wife Alison at work in Toronto. He had to stop on the side of Highway 401 because the catalytic converter fell off his car. The Crown called extensive evidence to demonstrate that the appellant lied about his whereabouts and his activities that day, in a variety of ways, to his family, to his friends, to the Stantons, and to the police.
5The appellant explained his lateness in picking up his wife from work on the evening of April 16th, the presence of eight scratches on his back, and the dirt on his clothes, as having been caused by his attempts to fix the catalytic converter on his car after it had fallen off. The Crown called evidence to demonstrate that his car did not have a catalytic converter.
6There was other after-the-fact conduct capable of supporting the inference that the appellant had a guilty mind besides the appellant’s lies about his activities on April 16. For example, he uncharacteristically showered that evening. Also, early the next morning, he laundered only the clothes he had been wearing the day before and then threw them out because he said he could not get them clean.
7The Crown called similar fact evidence of a previous incident from which the jury could conclude that the appellant had a sexual interest in Julie Stanton. In the summer of 1989, he asked Julie to meet him on his boat alone to talk about Kim (the same purpose he gave for the 1990 meeting). Five hours later, Julie turned up, sitting on a friend’s steps, incoherent, with her pant zipper undone, having urinated in her pants, with no memory of anything after drinking a blue drink given to her by the appellant. The appellant acknowledged that he had given Julie a cooler, and subsequently put her in a cab. There was evidence that the appellant had been prescribed Halcion (a small blue pill) and he admitted that he had liquefied Halcion in his possession that summer, for which he could offer no reason when asked by the police. Expert evidence was called to confirm that Julie’s behaviour was consistent with the ingestion of Halcion.
8The appellant also made a number of statements to his wife, his daughter, a friend, and to a jailhouse informant (Gerald Udall) about finding Julie’s body, that there would be an axe there with his finger prints on it, that he killed her with an axe, or that the police would make sure that his teeth marks would be “in her ass”. According to Udall’s testimony, he also told Udall that he drugged and raped Julie Stanton and provided other details about the events.
9The appellant did not testify nor did he call any defence evidence.
10The theory of the Crown was that the appellant had a romantic interest in the victim, that he invited her for lunch on the pretext of discussing problems he was having with his daughter, that he instead sexually assaulted her after picking her up in his car, and that he killed her to prevent her from complaining. There was also some suggestion that he had drugged her.
11The theory of the defence was that, after having lunch with Julie Stanton that day, the appellant dropped her off outside the Pickering Town Centre and never saw her again.
12As indicated, the body of Julie Stanton had not been found at the time of the trial. Accordingly, there was no crime scene evidence placed before the jury, nor any other forensic evidence establishing a connection between the appellant and Julie Stanton. The case against the appellant was entirely circumstantial except for the statements the appellant allegedly made to Gerald Udall, the jailhouse informant. The primary pieces of evidence connecting the appellant to the disappearance of Julie Stanton were the appellant’s admission that he had picked her up, his lies about his activities on the day in question, and his subsequent conduct.
13The remains of Julie Stanton were found on June 27, 1996, about a year and a half after the appellant’s conviction, the remains of Julie Stanton were found. The appellant seeks leave to have certain evidence relating to the location and forensic examination of the remains admitted on this appeal, including an agreed statement of fact that sets out the non-contentious narrative facts. Issues
14While a number of grounds of appeal were argued by the appellant, the court called on the Crown with respect to the following two issues:
The admissibility of the evidence of the jailhouse informant.
The admissibility of the fresh evidence relating to the discovery of the body of Julie Stanton.
Issue 1. The jailhouse informant
15At the time of trial, the jailhouse informant, Gerald Udall, had 39 convictions, most involving acts of dishonesty. Like the appellant, he was on the protective custody range of the Whitby Jail. He had acted as a police informant in the past. The appellant’s alleged jailhouse confessions to Udall took place in two stages.
16Period of September 10 – 24, 1992. During this period, the appellant allegedly told Udall, upon questioning by the latter, that he had killed Julie by chopping her up with an axe. Udall elicited this information from the appellant after having a brief meeting, on September 10, with police Detective Mercier. The meeting with Mercier was initiated by Udall who offered to provide information about two persons in custody other than the appellant. He had nothing that interested Mercier. However, Mercier, who was not involved in the police investigation respecting the disappearance of Julie Stanton, asked Udall whether he knew the appellant and said: “we’re very interested, the community, Durham Region, the public, her family, … in finding out where the body is”. The detective did not, however, do or say anything further to enlist Udall’s assistance, nor offer him any reward for information. The subsequent conduct of Udall that resulted in eliciting the alleged confession, was not, in the findings of the trial judge, infra, in any way the result of the control or manipulation of the police. Udall did not go back to Mercier with his information about the appellant but made arrangements to meet with the officer in charge of the Stanton investigation, Detective Curwain. He provided a statement in return for an undertaking from the Crown regarding his outstanding charges and his pending release. Udall’s testimony was admitted at the appellant’s trial after the trial judge held in a voir dire that Udall was not acting as a police agent when the appellant’s statements were made since Mercier had not intended to recruit him as an agent.
17Period of October 2-16, 1992. During this period, in tape recorded conversations with Udall, the appellant allegedly referred to his earlier confession when he told Udall that he would never have been arrested if he had stayed in Florida during a recent visit. Udall was careful not to take any action that was designed to elicit incriminating remarks. The appellant simply disputes the police identification of his voice on the tapes.
18It was agreed at trial and on appeal that the significant period to examine to determine the admissibility of this evidence is the first stage, during which Udall met with Detective Mercier. It is agreed that the appellant’s right to silence was not violated by the manner in which the statements were made during the second stage to Udall who by then was admittedly a police agent. See R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.).
19However, with respect to the admissions made in the first period, the appellant submits that the trial judge erred in failing to find that his right to silence guaranteed under s. 7 of the Canadian Charter of Rights and Freedoms (“Charter”) was not violated by the admission of his jailhouse statements. He argues that these statements should have been ruled inadmissible pursuant to R. v. Broyles (1991), 1991 CanLII 15 (SCC), 68 C.C.C. (3d) 308 (S.C.C.), since Udall elicited the statements from him and was acting as a police agent at the time. The appellant does not take issue with the trial judge’s finding that no agreement or promise of any benefit was made to Udall in exchange for his statements. Instead, the appellant argues:
In principle, all that is necessary to create a state agency relationship is for the police to specifically direct a motivated informant to the desired police target such that the resulting contact with the accused would not have occurred but for the police direction.
20Broyles, supra, is the leading case on when a prisoner becomes a state agent for the purposes of an analysis under s. 7 as to whether a fellow prisoner’s right to silence has been violated. Here, Iacobucci J., for the Court, at pp.317-19, held that the right to silence is triggered when the accused is subjected to the coercive powers of the state through his detention. It may be violated not only by the conduct of an undercover police officer but also by the conduct of any agent of the state. In deciding whether or not a person, such as a fellow prisoner, is an agent of the state, it is appropriate to focus on the effect of the relationship between the informer and the authorities, and on the particular exchange or contact with the accused. Iacobucci J. stated at p.319:
I would, accordingly, adopt the following simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?
21The ruling of the trial judge is very detailed and not uncritical of Udall. It is also critical of Mercier because of the detective’s failure to take notes of his meeting with Udall. However, the trial judge found that Udall was not a police agent when he obtained a series of inculpatory statements from the appellant, and later relayed these statements to Detective Curwain. I rely particularly on the following findings:
In the case before me, I think the following facts are important: The inmate Udall was obviously of a mind to be an informant in exchange for any benefit he could get. In fact, he offered information about three people on September 10, 1992. It was Udall who initiated the contact with the police on September 10, 1992. On that date, I find he was given no instructions or information in respect of the Stark case. The police did not in any way control or manipulate the informant’s dealings with Stark. Udall was already on the same range as the accused and the police did nothing to facilitate contact between Udall and Stark. While I am satisfied that Udall hoped to gain an advantage for himself by informing on other inmates, I am also satisfied that there was no promise of any benefit to him or requested by him when he met with Mercier. When Udall made the report to the police of the alleged admissions, it was he who initiated the further contact with the police on September 24, 1992. In making that request, Udall asked to speak to the investigating officer in the Stark case rather than asking to speak to Mercier, which one might expect to have been more natural if indeed he had struck any sort of arrangement with Mercier during the earlier meeting. There was no follow-up contact between Mercier and Udall after September 10, 1992. Mercier did not intend to elicit Udall as an agent, nor did Mercier believe what he had said to Udall to have had that effect. Udall did not understand Mercier to be recruiting him as a police agent, nor did Udall seek to offer his services as such in respect of Stark.
In my view, the highest the defence position can be legitimately placed is that the Mercier-Udall conversation on September 10, 1992 had the effect, whether intended or not, of focusing or directing Udall’s attention to the accused. Udall was obviously a person willing to exchange information on other inmates for his own benefit. I accept that Udall knew nothing of the accused’s case as of September 10, 1992. What he did learn on that date is that the police were interested in information about the whereabouts of a missing body. Later, when he observed the accused reading the newspaper story about his own case, Udall learned that the Stark case involved a missing body. I am satisfied that, being as shrewd as I view him to be, he would have connected, at that time, the two pieces of information. I am satisfied that Udall then realized the potential for converting this opportunity to his own advantage. He was experienced enough to realize the probability that some material advantage could be obtained as a result of bartering the information. Thereafter, Udall set about, on his own initiative and by his own design, to gain inculpatory admissions from Stark. The steps Udall took were entirely of his own formulation and free of police suggestion or direction.
Accordingly, I find that Udall was not a state agent when he allegedly received the admissions from the accused. While he elicited the information from the accused, he did so at a time when he was operating independently of the police. In my view, there was, accordingly, no violation of s. 7 of the Charter and the defence application will be dismissed. The evidence of Udall in respect of admissions by the accused between September 10 and 24, 1992 may be led before the jury.
22The appellant seizes upon one of the trial judge’s statements as being incompatible with the “but for” test in Broyles, supra. The trial judge said: “A mere expression of interest which is not accompanied by the development of any form of relationship between police and informant is, in my view, generally not sufficient”. This short statement, taken out of context, does not accord with the spirit of Broyles and in a different fact situation might be an error in law. However, the statement is preceded by:
In my view, all the circumstances of the police-informant contact must be considered. What is really at issue is whether the state has intervened in such a way as to conscript the informant to obtain for the state that which the accused had chosen not to give the state voluntarily.
23It is to be noted that Iacobucci J., in Broyles, specifically addressed the scenario where a police officer had made contact with a cellmate of the accused prior to the cellmate approaching the accused. He observed as follows at p.319:
I would add that there may be circumstances in which the authorities encourage informers to elicit statements without there being a pre-existing relationship between the authorities and individual informers. For example, the authorities may provided an incentive for the elicitation of incriminating statements by making it known that they will pay for such information or that they will charge the informer with a less serious offence. The question in such cases will be the same: would the exchange between the informer and the accused have taken place but for the inducements of the authorities? [Emphasis added.]
24Accordingly, there is no presumption in law that “a mere expression of interest” by the police officer constitutes the informant as a police agent. The trial judge must simply take this into consideration, along with all the evidence, in determining whether in fact the informant became a police agent. In the case in appeal, the trial judge could have concluded otherwise, but his conclusion is a finding of fact that merits deference on appeal. I think the comments of Rosenberg J.A. of this Court in R. v. McInnis (1992), 1999 CanLII 2671 (ON CA), 134 C.C.C. (3d) 515 at p. 532 are apt:
In this case, there is evidence from which the trial judge could have found that the exchange between the appellant and Doe [the jail house informant] was conducted differently because of the police intervention. I note in particular the statement by Sergeant Crosby to Doe on October 4, 1988 that a simple admission from the appellant that he killed Coté was “not enough”. However, the trial judge found otherwise and I cannot say that this finding is unreasonable, or that he otherwise erred in principle in concluding that the appellant’s rights under s. 7 were not violated. Accordingly, Doe’s evidence was properly admitted.
25Accordingly, I would not give effect to this ground of appeal.
Issue 2. The fresh evidence
26On June 27th, 1996, a Mr. Jansen was working on his property, located 35 kilometers north of where the appellant lived at the time of Julie Stanton’s disappearance, when he discovered human remains. That same day, the police were notified and performed a search of the area. Detective Ginn of the Ontario Provincial Police and Detective Curwain of the Durham Regional Police Force conducted a follow-up police investigation. On June 30th, Dr. Crook, after reviewing dental records, identified the remains as those of Julie Stanton.
27The remains were examined on behalf of the Crown by Dr. Chiasson, the Chief Forensic Pathologist, Office of the Chief Coroner of Ontario, and by Dr. Melbye, a forensic anthropologist from the Centre of Forensic Science (CFS). Dr. Melbye also attended at the scene and supervised the dig of the remains site. Further, Dr. Mayer, a toxicologist and Head of the toxicology section of the CFS, conducted tests on the bone marrow to determine if Halcion had been ingested by Julie Stanton. Finally, Dr. Jaffe, a forensic pathologist and former Medical Director at the CFS, conducted a post-mortem examination of the remains on behalf of the defence.
28The appellant submits that this fresh evidence should be admitted as it meets the criteria established by Palmer and Palmer v. The Queen (1979), 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193 at 205 (S.C.C.), namely:
The evidence could not have been adduced at trial by due diligence;
the evidence is relevant;
the evidence is credible; and
the evidence is such that it could reasonably be expected to have affected the result.
29The Crown concedes that only the last criterion is in issue. As to this criterion, the appellant submits that: (1) the absence of indications on the remains of axe blows could provide a jury with a basis upon which to reject Mr. Udall’s evidence that the appellant killed Julie by chopping her body up with an axe; (2) the absence of forensic evidence of a sexual assault throws doubt on the theory of the Crown that the victim was sexually assaulted before being killed; (3) the absence of any trace of Halcion in the remains undermines the theory of the Crown that the victim was drugged; and (4) the fact that there was no forensic connection between the crime scene and the appellant is a significant fact that could affect the jury’s conclusion.
30I think that the last three points can be disposed of in short order. As to the fourth point, the fact that the site does not furnish any evidence directly connecting the appellant to the killing is of no significance given the years of exposure to the elements. On the other hand, the remoteness of the location provides further evidence of the efforts made to conceal the body. While the soil samples do not directly connect the appellant’s car to the site of the remains, they provide some confirmation of the trial evidence with respect to the dark soil and leaves observed by Alison Stark on the appellant’s hands and clothes on the night in question.
31As to the second and third points, regarding the absence of forensic evidence of sexual contact or drugs, this is hardly surprising, and of little probative value, given the state of the remains and the length of time that had elapsed. All soft tissue, organs, hair, fingernails, and toenails were missing. Only 60% of the skeletal remains were found, scattered over an area 79 meters by 51 meters, together with much of the clothing and personal effects. Many long bones from limbs or the torso were missing. Most of the bones were severely damaged by animal chewing.
32Accordingly, it is not surprising that the toxicologist Dr. Mayer was unable to detect Halcion in the bone marrow. In any event, Dr. Mayer stated that there was no scientific basis for determining how long it would take Halcion to reach bone marrow. He could only state that it would take longer (perhaps several hours) than the absorption rate of Halcion into the blood, which itself takes as long as two hours, depending on the contents of the stomach. Consequently, the Halcion might never get to the bone marrow, depending on the time of death relative to the time of ingestion. Further, Dr. Mayer stated that it is also possible that the Halcion was degraded from the six years of exposure. As a result, the test results neither confirm nor exclude the presence of Halcion.
33There is, however, new evidence arising out of the investigations which provides additional support for the allegation of sexual assault. Dr. Melbye observed that the clothing appeared not to be on the lower half of the body at the time the body was deposited at the site. There were no bones in the clothing from the lower half of the body, while there were bones in the shirt. Further, the hip joint was in place, suggesting that animals had not removed the clothing after death. Dr. Melbye was of the opinion that it was unlikely that animals could remove the clothing over the legs, had the body not yet decomposed. Had the clothing been removed after the body had decomposed, Dr. Melbye was of the opinion that this would have dislodged the hip joint.
34The real force of the appellant’s submissions was directed towards the first point: the doubt created by the post-mortem that the appellant used an axe to dismember the body of the victim. In addressing this point, it is necessary to recall that there is nothing in the first degree murder theory of the Crown that is dependent upon the dismemberment of the body, much less by an axe. Rather, the Crown relies upon forcible confinement, sexual assault, and an intentional killing of the victim to ensure her silence. The use of an axe simply adds colour to the Crown’s theory. Its genesis lies in the appellant’s jailhouse confession to Udall.
35The appellant submits that the post-mortem is fatal to the credibility of Udall in that it demonstrates that the appellant could not have described the murder of Julie Stanton in the manner in which Udall said he did. As the appellant puts it in his factum:
It is respectfully submitted that the fresh evidence in this case satisfies the test for admission and provides a basis upon which Mr. Stark should be granted a new trial. The discovery of the remains furnishes Mr. Stark with an evidentiary foundation to defend himself in a manner which was not possible before. In particular, it furnishes good reason to doubt the veracity of Mr. Udall's evidence of Mr. Stark’s confession. This, in turn, affects the jury's assessment of the whole of the evidence as it relates to the use of an axe. When one considers the fact that the site of the remains is not forensically connected to Mr. Stark, the fresh evidence gains additional cogency. This fresh evidence pertains to and adversely affects the reliability and credibility of important evidence relied upon by the Crown to prove that Mr. Stark killed Julie Stanton. As a result a new trial should be ordered.
36However, Dr. Jaffe was the only expert who was prepared to testify affirmatively that the use of an axe was “highly unlikely” given the condition of the bones that were found.1 He said that the cause of death could not be determined, but that the bones revealed no evidence of pre-death injury. The fact that Dr. Jaffe was prepared to be so positive in the absence of 34 of the 54 bones of the upper limbs of the victim, and 45 of the 52 bones from the lower limbs, is somewhat surprising. The missing bones included the right radius and ulna, the left femur, and the left tibia. Further, the Crown justifiably pointed out Dr. Jaffe’s limited experience in examining skeletal remains. I think the evidence of Dr. Melbye is to be preferred.
37On July 4, 1996, Dr. Melbye attended at the scene of the remains and determined that a further search using anthropology students would be advisable. He organized and personally supervised the subsequent search which took place July 15-19, 1996. Also, together with Dr. Chiasson, he conducted a personal examination of the skeletal remains on July 23 and 24, 1996. After the examination, Dr. Melbye prepared a report in which he concluded that, due to the extensive post-mortem damage and scattering by various animals, nothing could be said about post- mortem damage.
38Given the state of the remains, Dr. Melbye concluded that he could neither exclude nor confirm the use of an axe. He noted that, with the exception of the skull, which was intact, many of the bones had suffered extensive post-mortem damage caused by the gnawing of rodents, which could have obliterated any evidence of blows from a hatchet. He stated that:
It is an axiom of scavenged bodies that any trauma that breaks the skin is an open invitation to animals who are attracted to the area of trauma first. As a result one can see greater post mortem damage to the skeletal remains at the initial site of trauma.
39Accordingly, one can deduce that, had there been any trauma to a particular bone, this would have attracted the very intrusion by animals that would in all likelihood have obliterated evidence of the source of the original trauma.
40Accordingly, having read the fresh evidence, I think the fairest conclusion is that, because of the state of the remains of Julie Stanton, the possibility that an axe was used to inflict some injury to the body cannot be excluded. This result cannot be treated as contradicting the appellant’s version of the killing as reported by Udall. However, even if the court were to accept the evidence of Dr. Jaffe that the use of an axe was unlikely, this limited conclusion would not affect the credibility of Udall. He was merely recounting what the appellant told him.
41More importantly, the appellant made other references to an axe to persons whose credibility was never in issue. First, Alison Stark testified that the appellant told her that an axe was missing from the boat, that Pat Stanton [Julie’s mother] had stolen it, and that she would plant it with the body. The missing axe had a 12" handle and was normally stored on the back deck on a shelf. Alison Stark confirmed that it had not been seen since the boat was brought up from New York the summer before. Second, the appellant told his daughter, Kim Stark, that the axe would probably be placed with his fingerprints on it with the body.
42Besides his statements about the axe, the appellant made other statements that tend to corroborate Udall’s report of his confession. According to Alison Stark, from the time when the appellant’s mother Emily called Alison (on April 17, 1990), to the time the boat was searched (in late April, 1990), the appellant believed that Julie was dead. He told Alison that “he hoped, for his own sake, that they didn’t find the body”. When Alison responded that they did not even know if she was dead, he said again: “If she is dead, I hope they don’t find the body”. Finally, the appellant told Allan Whitaker that when they found the body they would make sure it had his teeth marks in her ass.
43In overview, it is obvious to me that the fresh evidence, far from casting doubt on the guilt of the appellant, adds additional support for the theory of the Crown. One of the critical hurdles the Crown had at trial was to prove beyond a reasonable doubt that Julie Stanton was dead. As the trial judge instructed the jury, if they had a reasonable doubt on that issue, “you need not go any further in your deliberations”. The Crown proceeded to meet this burden by relying on both circumstantial and direct evidence. The circumstantial evidence consisted of testimony relating to Julie’s personality and lifestyle, and evidence showing that she had not been heard from in four years and that extensive searches for her had been unsuccessful. The direct evidence was that of Udall. He provided the only affirmative explanation of what happened to Julie Stanton. Once the body was found, half buried in a bog, there was no longer any doubt that she was dead and that she died as a result of some unlawful means. The fresh evidence thus starkly confirms the theory of the Crown that Julie Stanton had not simply disappeared. The admission of the appellant that he picked the victim up on April 16, 1990, coupled with the evidence that he was the last person to see her alive, went a long way to wrapping up the circumstantial case against the appellant.
44At the end of the day, the appellant’s counsel conceded that, effectively, the significance of the fresh evidence was limited to the credibility of the testimony of Udall. It is therefore useful to note what else the appellant is alleged to have said to Udall and what confirmation there is of it.
45Gerald Udall, the informant, testified that the Appellant told him, while they were in the Whitby jail together in September, 1992, that:
He killed Julie Stanton.
He raped Julie Stanton.
He wanted to fuck her; she wouldn’t go for it and started crying. He got scared that she was going to run to her parents and that’s when he chopped her. He chopped her up with an axe.
He was meeting her weekly.
He drugged her with Valium/Diazepam.
He wore surgical gloves so there were no fingerprints.
He went to Florida and shouldn’t have come back; he wouldn’t have been arrested.
He was asked where the body was and said not to ask him that. Without the body they couldn’t convict him.
He knew the police were following him and he would take a ride “out there”. He was playing games with them.
On that day he went to a muffler shop and he got his haircut.
He was changing his clothes that day so he couldn’t be placed in one spot or another.
There was rust on the doorframe or bottom of his car.
He got three scratches from her but the police couldn’t prove it because he was in the hospital at the time.
46Apart from the location of the body, obviously the subject of foul play, there is other confirmatory evidence supporting significant details in what the appellant told Udall. There is evidence that the appellant bought a pair of “dentist” gloves to use while working on his boat, that he had scratches that he could not explain, that he had bought Halcion that was prescribed for him, that he was seen to have changed clothes on the day in question, that there was rust on his car, and that he had taken the car to a muffler shop on April 16, 1990. Later, as tape recorded in conversations between Udall and the appellant, he said he knew that he had told Udall “I did it”. He also said, as recorded, that if he got 25 years he would come out after 5 years and confess to what he did.
47This appeal as it respects fresh evidence related to the evidence of a jail house informant is somewhat unique. We do not have a purported recantation to place against the testimony of the informant at trial as was the case in R. v. Babinski (1999) 1999 CanLII 3718 (ON CA), 44 O.R. (3d) 695 (C.A.) and R. v. Kelly (1999), 1999 CanLII 1968 (ON CA), 135 C.C.C. (3d) 449 (C.A.). We have credible, albeit somewhat conflicting, opinion testimony about the state of the remains of the deceased that was unavailable to the jury at trial. Even if the court was to order a new trial, the fresh evidence cannot be used to confront the informant because he is dead. At the option of the Crown, his evidence on the first trial could probably be read in pursuant to s. 715 of the Criminal Code. If the Crown elected to do so, the opinion evidence as to the lack of affirmative evidence of axe blows to the remains of the deceased does not mean that the appellant did not make the statements attributed to him by Udall. In point of fact, the fresh evidence does not affect the credibility of any Crown witness. The evidence of what the appellant said to Udall is uncontradicted by the appellant who did not testify. Indeed it finds support in the fresh evidence and in other statements attributed to the appellant by witnesses whose credibility is not in issue.
48Accordingly, I am of the opinion that the fresh evidence, if it had been available at trial, would not have affected the result.
49For the reasons set out above, I would dismiss the appeal.
Released: MAY 01 2000
Signed: “G.D. Finlayson J.A.”
GDF
“I agree J.J. Cart hy J.A.”
“I agree Dennis O’Connor J.A.”
1 Dr. Chiasson gave the opinion that it was “unlikely that death was the result of multiple axe blows”. However, he also concluded that the possibility that an axe was used to inflict some injury to the body cannot be excluded.
