COURT OF APPEAL FOR ONTARIO
CARTHY, MOLDAVER and MacPHERSON JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
–and–
NEIL ROGER KRUGEL
Appellant
J. Sandy Tse
for the respondent
David M. Tanovich and
P. Andras Schreck
for the appellant
Heard: December 9 and 10, 1999
On appeal from conviction by Weekes J. with a jury, dated
July 8, 1995.
MOLDAVER J.A.:
1On March 17, 1993, three days after Wendy Carnochan had
broken off her relationship with Neil Krugel, the police
discovered her lifeless body on the floor of her trailer home.
She had died from a gunshot wound to the head. Krugel was
arrested the next day and charged with first degree murder.
2On July 8, 1995, after a 12-week jury trial, Krugel was
found guilty of second degree murder. On September 8, 1995, he
was sentenced to life imprisonment and ordered to serve ten years
before being eligible for parole.
3Krugel appeals his conviction. He raises three grounds of
appeal, one relating to the jury selection process, the others to
alleged deficiencies in the charge to the jury. Because the
grounds in question are narrow and self-contained, I do not
propose to review the evidence at trial in detail, except where
necessary to flesh out a particular ground. In the
circumstances, a brief overview of the events leading to Ms.
Carnochan’s death will suffice.
OVERVIEW
4The appellant and the deceased resided in Lindsay, Ontario.
The deceased worked as a secretary at the Moose Lodge, a local
social club, and the appellant ran a successful painting
business. The deceased and the appellant became acquainted
through the lodge and they began to date in November 1992. The
appellant, then aged 56, had recently lost his second wife to
cancer. The deceased, who was in her early 30s, had just
separated from her abusive husband.
5The relationship intensified quickly and, in late December
1992, the appellant moved out of his home and took up residence
with the deceased. It was around this time that the deceased and
the appellant started to receive threatening phone calls from
persons unknown. As a result of these calls, and the deceased’s
fear of her ex-husband, she told the appellant that she would
feel safer if there was a gun around. The appellant obliged and
provided her with a shotgun that he had lawfully purchased from a
friend in the early part of November 1992.
6The appellant and the deceased continued to reside together
until March 1993. At that time, the deceased began having second
thoughts about the relationship and at the beginning of March,
she asked the appellant to leave, only to invite him back the
next day. On March 14, she asked him to leave again and he
complied, removing some of his clothing and the shotgun from the
trailer.
7Upon returning home, the appellant lapsed into a state of
severe depression, something he had experienced several times in
the past when confronted with problems in his personal life. On
this occasion, in contemplation of suicide, he sawed off the
barrel of the shotgun and pointed it at his chin, only to desist
at the last moment.
8The next day, out of concern for the deceased’s safety, the
appellant drove to her trailer and returned the shotgun. He
stayed for lunch and dinner and he and the deceased made plans to
meet for dinner on the evening of March 17.
9On Wednesday, March 17, the appellant spent the better part
of the day drinking beer with his friend, Grant Harrison.
Harrison described the appellant as being depressed and somewhat
incoherent. On several occasions, the appellant spoke of
“blowing himself away” and, although he could not be certain,
Harrison also thought the appellant had threatened to kill the
deceased if he found her “fooling around”.
10After leaving Harrison at around 3:00 p.m., the appellant
went to a series of bars and continued to drink. At 7:00 p.m.,
he left for the Moose Lodge to meet the deceased. When he
arrived, he found her seated at a table with Steven Gorrill.
Gorrill bought the appellant a drink and the three chatted
briefly. When Gorrill went to the washroom, the deceased told
the appellant that she had forgotten their dinner date and had
made other plans. Feeling depressed and upset, the appellant
left the lodge and drove to the deceased’s trailer with the
intention of procuring the shotgun, returning home and killing
himself. Once there, he located the gun but instead of returning
home, he sat on the couch, gun in hand, and began to ruminate.
11According to Gorrill, he and the deceased left the lodge
about twenty minutes after the appellant. Although they each had
separate cars, by chance, they met up at a nearby service
station. Gorrill learned that the deceased was having car
trouble and offered to follow her home. When they arrived, the
deceased asked Gorrill to come in. He stood on the doorstep as
she unlocked the door. She called her dog and told Gorrill not
to let the dog get out. Gorrill crouched down and took hold of
the dog. In the meantime, the deceased, who was attempting to
tie the dog with a rope, suddenly fell backwards onto the floor.
At this point, Gorrill saw the appellant pointing a shotgun at
him. He turned and, as he ran off, he heard the deceased
shouting “What the hell are you doing in my house? Get the fuck
out of my house.” He left and later that evening said that he
called 9-1-1 and reported the incident to the police. At the
time, he said he was unaware that the deceased had been shot and
killed.
12The appellant provided a very different version of events.
He claimed that while sitting on the couch, he heard someone
trying to open the door. He got up and as he opened the door,
the deceased, who had been leaning against it, fell backwards,
landing on the floor. When she stood up, she asked the appellant
what he was doing with the gun. The appellant responded that he
was going to shoot himself. He denied pointing the gun at
Gorrill.
13According to the appellant, the deceased then grabbed the
muzzle of the gun and began to struggle with him. Gorrill, who
was still there, took hold of the appellant’s left shoulder from
behind and then let go. This resulted in the appellant falling
on the deceased, at which point the gun accidentally discharged,
killing her.
14When the appellant stood up Gorrill had gone. The appellant
left the trailer and drove home. On the way, he threw the
shotgun into a ditch. The next day, he was arrested by the
police.
Position of the Parties at Trial
15At trial, the appellant maintained that the killing was
accidental. He denied having any motive to kill the deceased,
claiming instead that he was deeply in love with her and that he
had no intention of harming her. In support of his position that
the gun discharged accidentally, he led evidence from a
pathologist who testified that the forensic evidence was not
inconsistent with his version of the events surrounding the
killing.
16The Crown, on the other hand, took the position that the
killing was not only intentional but planned and deliberate. In
short, the Crown maintained that on the night in question, the
appellant, enraged by jealousy, waited for the deceased to come
home and, after scaring off Gorrill, he shot her in cold blood.
In support of its theory, the Crown relied on a substantial body
of evidence showing that the appellant was not only jealous of
the deceased but obsessed with her to the point that if he could
not have her, nobody would. Additionally, the Crown relied on
the evidence of several forensic experts who testified that the
deceased was not shot at close range but at a distance and that
the gun was in a horizontal position when fired. This evidence,
if accepted, rebutted the appellant’s testimony that the gun
accidentally discharged while he and the deceased were
struggling.
17By its verdict, it is clear that the jury rejected the
defence of accidental discharge, finding instead that the
killing, though not planned and deliberate, was intentional.
GROUND 1 – THE JURY SELECTION ISSUE
Overview of Appellant’s Position
18This ground of appeal concerns the interpretation of s. 633
of the Criminal Code, which reads as follows:
- The judge may direct a juror whose name
has been called pursuant to subsection 631(3)
to stand by for reasons of personal hardship
or any other reasonable cause.
19The appellant submits that the trial judge committed
jurisdictional error when, at the outset of the jury selection
process, he stood aside a number of prospective jurors who, by
virtue of their connection with one or more prospective
witnesses, were potentially partial. The appellant contends that
juror partiality is a subject that falls outside the ambit of s.
633 and that the trial judge accordingly had no authority to
stand jurors aside on the basis of suspected partiality.
20According to the appellant, the error was fatal for two
reasons. First, it tainted the entire jury selection process and
deprived him of his right to trial by a lawfully constituted
jury. Second, it impinged on his ability to exercise his
peremptory challenges in an informed manner. To be precise, the
appellant submits that prior to being called upon to exercise his
peremptory challenges, he was entitled to have the suspect jurors
excused or left in the jury pool. Had this been done, he would
not have had to reserve peremptory challenges for the stand aside
jurors in the event their recall proved necessary.
21The appellant also raises a subsidiary argument concerning
the timing of the stand asides. Specifically, he submits that on
the plain wording of s. 633, the trial judge had no authority to
stand jurors aside during the initial screening process but only
after their names had been drawn from the drum. In the final
analysis, however, the appellant accepts that this error was not
fatal.
22To place these issues in their proper perspective, I find it
necessary to review the jury selection process in this case in
some detail. Before doing so, the relevant Code provisions are
provided:
Relevant Code Provisions
631.(3) Where
(a) the array of jurors is not challenged, or
(b) the array of jurors is challenged but the
judge does not direct a new panel to be
returned,
the clerk of the court shall, in open court,
draw out the cards referred to in subsection
(1), one after another, and shall call out
the name and number on each card as it is
drawn, until the number of persons who have
answered to their names is, in the opinion of
the judge, sufficient to provide a full jury
after allowing for orders to excuse,
challenges and directions to stand by.
- The judge may, at any time before the
commencement of a trial, order that any juror
be excused from jury service, whether or not
the juror has been called pursuant to
subsection 631(3) or any challenge has been
made in relation to the juror, for reasons of
(a) personal interest in the matter to be
tried;
(b) relationship with the judge, prosecutor,
accused, counsel for the accused or a
prospective witness; or
(c) personal hardship or any other reasonable
cause that, in the opinion of the judge,
warrants that the juror be excused.
- The judge may direct a juror whose name
has been called pursuant to subsection 631(3)
to stand by for reasons of personal hardship
or any other reasonable cause.
641.(1) Where a full jury has not been sworn
and no names remain to be called, the names
of those who have been directed to stand by
shall be called again in the order in which
their names were drawn and they shall be
sworn, unless excused by the judge or
challenged by the accused or the prosecutor.
The Jury Selection Process
23At the outset of the trial, after the appellant had been
arraigned before the panel at large, the trial judge called upon
Crown counsel to read out the witness list and he instructed the
prospective jurors to stand up and identify themselves if they
were “…closely connected with the accused, the alleged victim,
Wendy Carnochan, or any of the police involved, or the other
witnesses whose names are read out….”
24Of the 97 persons comprising the panel at large, 32
identified themselves. Each was called forward and briefly
questioned by the trial judge about his or her connection with
the accused or prospective witnesses. Depending on the response,
the trial judge either excused the juror or directed him/her to
stand aside.
25Of the 32 candidates who came forward, 10 provided responses
that led the judge to excuse them from jury duty on account of
obvious partiality pursuant to s. 632(b) of the Code. As for the
remaining 22 candidates, the trial judge exercised his discretion
under s. 633 of the Code and directed that they stand aside,
subject to recall if necessary. He did so on the basis that
although their responses did not disclose obvious partiality,
they nonetheless raised a realistic prospect of partiality.
26At this juncture, defence counsel [not Mr. Tanovich or Mr.
Schreck] raised no objection and the jury selection process
proceeded with the registrar drawing 15 names from the drum.
Pursuant to an earlier ruling made by the trial judge, the
defence was permitted to challenge each prospective juror for
cause on the basis of pre-trial publicity and possible
affiliations with the Moose Lodge. Of the initial 15 candidates,
9 found to be impartial by the triers of fact were challenged
peremptorily, 7 by the defence and 2 by the Crown; 3 found to be
partial by the triers were excused; 2 were excused by the trial
judge for reasons of personal hardship and 1 was sworn as a
juror.
27At this stage, the court recessed for lunch. Upon resuming
at 2:00 p.m., counsel for the defence raised, for the first time,
an objection concerning the 22 prospective jurors who had earlier
been stood aside. In particular, he submitted that the trial
judge had no authority under s. 633 to stand jurors aside who, by
reason of their connection with the accused or prospective
witnesses, might be partial. Rather, their names should have
been left in the jury pool. The trial judge then asked if the
appellant had been prejudiced by the impugned procedure, to which
defence counsel replied:
Well, it may result in the defence, or indeed
the Crown, I suppose, being in a position
where by the time we reach the stand asides,
peremptory challenges have already been
spent, and those people who are stood aside
because of potential close connection, but
not quite enough to make them disqualified in
the first instance, those are the persons you
would be most likely wanting to exercise or
may be wanting to exercise peremptory
challenges.
28The trial judge refused to give effect to these submissions.
His brief reasons are reproduced in part below:
Notwithstanding those arguments, I am
satisfied that Parliament expressly gave the
power to a trial judge in the situation that
I’m in to stand aside a member of the jury
panel for reasonable cause, and I interpret
that to include connections with witnesses
but not so close as to justify an automatic
excusing of the juror.
29The jury selection process then continued as it had prior to
the objection and eleven jurors were sworn before the panel was
exhausted. The trial judge then expressed his intention to have
the stand-by jurors recalled, one at a time, in the order in
which they had been stood aside. At this point, Crown counsel
observed that pursuant to s. 641 of the Code, the stand-by jurors
were to be recalled in the order in which their names had been
drawn and since the instant jurors had been stood aside during
the screening process, he suggested that their cards be placed in
the drum for random selection. Both the trial judge and defence
counsel agreed with this suggestion.
30Before the selection process commenced, defence counsel
sought permission to expand the challenge for cause process to
question the stand-by jurors about their connection with the
case. The trial judge acceded to this request and he directed
the registrar to return the stand-by juror cards into the drum
and select 15 names.
31Following a brief recess, Crown and defence counsel advised
the trial judge that as a result of discussions, they were in
agreement that four of the stand-by jurors should be excused by
reason of their connection with the case. The trial judge
complied and the four were excused. Counsel then invited the
trial judge to put further questions to seven of the remaining
stand-by jurors concerning their connection with the case. The
trial judge agreed and the questioning took place in the absence
of the eleven jurors who had already been sworn. As a result,
counsel asked that two of the seven be excused and the trial
judge complied.1
32The jury selection process then resumed. The first two
stand-by jurors were excused by the trial judge for reasons of
personal hardship. The next juror was found to be partial by the
triers of fact due to her connection with the case and she was
excused. The fourth, found to be impartial by the triers, was
selected as the twelfth juror. At this point, the defence had
used 19 of its 20 peremptory challenges.
ANALYSIS
The Timing Issue
33Under s. 632 of the Code, jurors can be excused from jury
service at any time before the commencement of the trial, whether
or not their names have been called pursuant to s. 631(3). By
contrast, s. 633 states that jurors can be stood aside once their
names have been called pursuant to s. 631(3).
34A comparison of the two provisions leads me to conclude that
in the case of stand asides, trial judges must wait until the
juror’s name has been drawn before the juror can be directed to
stand aside. This conclusion is reinforced by s. 641(1) of the
Code which mandates that stand-by jurors be recalled in the order
in which their names have been drawn in the event the panel is
exhausted before twelve jurors have been sworn.
35In enacting ss. 632 and 633, Parliament clearly saw fit to
distinguish the time frame within which jurors can be excused
from that within which they can be stood aside. No doubt in
drawing this distinction, Parliament had in mind the need to
preserve the integrity of the trial by ensuring randomness in the
jury selection process. Randomness in the selection process is
of course one of the hallmarks of the jury trial system. In the
case of jurors who are excused, randomness is irrelevant because
such persons stand no chance of forming part of the petit jury.
The same, however, does not hold true for stand-by jurors. They
do stand a chance of becoming part of the petit jury and as such,
the integrity of the process requires that they, along with the
other prospective jurors, be selected at random.
36It follows, in my view, that the procedure adopted by the
trial judge of standing jurors aside before their names had been
drawn was wrong. Had the stand-by jurors been called back in the
order in which they had been stood aside, this would have
resulted in a breach of the random selection requirement. As it
is, I am satisfied that the effect of the error was cured when,
at the last moment, the decision was made to return the names of
the stand-by jurors to the drum for random selection. In view of
this, and Mr. Tanovich’s candid concession in oral argument that
the appellant suffered no prejudice as a result of the timing
error, I would not give effect to this branch of the argument.
The Partiality Issue
37Under s. 633, jurors can be directed to stand aside for
reasons of personal hardship or any other reasonable cause. The
appellant submits that the trial judge erred in concluding that
the words “any other reasonable cause” include the subject of
juror partiality. Rather, it is his position that they were
intended to cover matters akin to personal hardship such as
illness, physical or mental infirmity, incompatible religious or
other beliefs and the like. In support of his position, the
appellant makes three points.
38First, he submits that in order to determine what the words
“other reasonable cause” in s. 633 were meant to include, s. 633
must be read in conjunction with s. 632, a “related” provision in
which the issue of juror partiality is specifically addressed.
The appellant bases this submission on the fact that both
provisions were enacted pursuant to Bill C-70, an Act to Amend
the Criminal Code (jury),2 as part of a package of reforms
designed to bring the jury selection process into conformity with
the Charter. Accordingly, Parliament must be taken to have
intended that the two sections be read and interpreted
consistently.
39The appellant submits that when the two provisions are
compared, it becomes apparent that Parliament did not intend to
include juror partiality as a reason for standing jurors aside
under s. 633. Taking s. 632 as a starting point, he points out
that whereas subsections (a) and (b) of that provision speak
specifically to the issue of juror partiality, subsection (c)
does not. Turning to s. 633, he emphasizes that the language in
that provision tracks only subsection (c) of s. 632, not
subsections (a) and (b). From this, the appellant reasons that
if Parliament had intended to include the subject of juror
partiality in s. 633, it would have harmonized the two provisions
by framing s. 633 in the same terms as s. 632. The fact that it
did not provides conclusive proof that the subject of juror
partiality was not meant to be included in s. 633.
40The appellant’s second point derives from the House of
Commons debates on the occasion of the second reading of Bill C-
70 on May 5, 1992. At that time, Mr. Rob Nicholson,
Parliamentary Secretary to the Minister of Justice and Attorney
General of Canada, referred to ss. 632 and 633 in these terms:
It [section 632] would permit the judge to
excuse a prospective juror from jury duty if
the juror has essentially a conflict of
interest or on grounds of personal hardship
or, for that matter, any other reasonable
cause.
It [section 633] would permit the judge to
stand by a prospective juror on grounds of
personal hardship.
41The appellant submits that these remarks support his
position that unlike s. 632, s. 633 was not meant to deal with
the subject of juror partiality but only personal hardship and
other related difficulties.
42The appellant bases his third and final point on caselaw
existing prior to the enactment of ss. 632 and 633.3
Specifically, he submits that the trial judge erred in failing to
interpret s. 633 in accordance with the principle expressed at
pp. 210-211 of R. v. Sherratt (1991), 1991 86 (SCC), 63 C.C.C. (3d) 193 (S.C.C.)
that a trial judge’s power to pre-screen jurors for partiality
extends only to cases of obvious partiality:
… [S]ome words of caution are in order as to
the nature of the pre-screening that can be
legitimately engaged in by trial judges….
The initial procedure … goes only to such
clear-cut cases of partiality that … the
consent of counsel is and can be presumed.
Once out of obvious situations of non-
indifference … the procedure takes on a
different colour: consent can no longer be
presumed and the procedure must conform to
that which is set out in the Criminal Code.
There is absolutely no room for a trial judge
to increase further his/her powers and take
over the challenge process by deciding
controversial questions of partiality . …
[T]he threshold pre-screening mechanism is a
poor, and more importantly, an illegal
substitute in disputed areas of partiality….
43Had the trial judge approached s. 633 from this perspective,
as the appellant submits he should have, he would not have
interpreted it to mean that he had jurisdiction to pre-screen
jurors who, by reason of their connection with prospective
witnesses, might be partial. Rather, in conformity with
Sherratt, he should have found that s. 633 did not expand his
jurisdiction to pre-screen jurors for partiality and that his
authority in this regard continued to extend only to cases of
obvious partiality.
44The resolution of this issue turns on the proper
construction of the words “any other reasonable cause” in s. 633.
The trial judge interpreted those words to include the subject of
juror partiality and the appellant submits that he was in error.
He does not, however, go on to suggest that if the trial judge
had the necessary jurisdiction to stand aside jurors because of
partiality, he erred in exercising his discretion as he did.
Accordingly, if the trial judge was correct in his interpretation
of s. 633, that ends the matter.
45I begin my analysis by observing that the words “any other
reasonable cause” are certainly wide enough to include the
subject of juror partiality. Indeed, that is precisely the
construction they received in R. v. Holcomb (1973), 15 C.C.C.
(2d) 239 (S.C.C.), affirming (1973), 1973 1428 (NB CA), 12 C.C.C. (2d) 417
(N.B.S.C., App. Div.) and R. v. Betker (1997), 115 C.C.C. (3d)
421 (Ont. C.A.), leave to appeal to S.C.C. refused 121 C.C.C.
(3d) vi.
46At issue in Holcomb was whether the trial judge had
jurisdiction to discharge two jurors who had come into contact
with the accused during the course of the trial. The relevant
provision of the Code, s. 573(1) (now s. 644(1)), read as
follows:
- (1) Where in the course of a trial the
judge is satisfied that a juror should not,
because of illness or other reasonable cause,
continue to act, the Judge may discharge the
juror. [Emphasis added.]
47On his appeal from conviction to the Court of Appeal for New
Brunswick, the appellant submitted that the trial judge had no
jurisdiction to discharge the two jurors in question on the basis
of suspected partiality because properly construed, the words
“other reasonable cause” were not meant to include the subject of
juror partiality. Rather, they were to be read ejusdem generis
with the word “illness.” Speaking for the court, Limerick J.A.
rejected this submission. At p. 422, he said:
The present provision empowers a Judge to
discharge a juror where he decides the juror
should not continue to act ‘because of
illness or other reasonable cause’. The
quoted words are not ejusdem generis with
‘illness’ but mean any cause which the Judge
deems reasonable in the conduct of a trial
which requires a competent and impartial
jury. A reasonable cause might include
misconduct on the part of a juror or such
interference with a juror as to suggest that
he may have been interfered with whether or
not there has been any intentional
wrongdoing. Association by a juror with an
accused during the course of a trial is
unseemly and likely to give rise to suspicion
of a juror’s impartiality as is also the
association of jurors with witnesses.
[Emphasis in original.]
48On further appeal to the Supreme Court of Canada, Fauteux
C.J.C. delivered the following brief oral judgment on behalf of
the court:
It will not be necessary to hear counsel for
respondent. We are all of the opinion that
the Court of Appeal for New Brunswick did not
err in its interpretation of s. 573(1) … of
the Criminal Code of Canada. The appeal is
dismissed.
49Likewise, in Betker, a case dealing primarily with the right
of an accused to challenge prospective jurors for cause based on
the nature of the offence, this court found that the words “any
other reasonable cause” in s. 632(c) of the Code were wide enough
to include matters of obvious juror partiality not mentioned
specifically in subsections (a) and (b) of that provision. The
relevant passage is found at p. 449:
Under s. 632, trial judges are empowered to
excuse prospective jurors for matters of
obvious partiality referred to in subsections
(a) and (b). In addition, s. 632(c) provides
trial judges with a residual discretion to
excuse prospective jurors for ‘any other
reasonable cause’. In my view, the words
Qany other reasonable cause’ are wide enough
to include matters of obvious partiality not
mentioned specifically in subsections (a) and
(b).
50Although helpful in the broad sense, these authorities are
by no means dispositive of the issue at hand. The fact that the
words “other reasonable cause” have been found in other contexts
to include the subject of juror partiality does not mean that
they must receive that construction in s. 633. Whether s. 633
bears that construction is a matter of legislative intent. The
question that must be asked is this: in enacting s. 633, did
Parliament intend to include juror partiality as a reason for
standing jurors aside or was s. 633 meant to be confined to cases
of personal hardship and other like difficulties? The answer, I
believe, derives in large part from the legislative history of
Bill C-70 and specifically, the mischief it was intended to
redress.
51Bill C-70 was enacted in response to R. v. Bain (1992), 69
C.C.C. (3d) 481 (S.C.C.). At issue in Bain was the constitutional
validity of the jury selection process, then governed in part by
ss. 633 and 634 of the Code. The problem, in a nutshell, was
that s. 633 restricted an accused to 4, 12 or 20 peremptory
challenges, depending on the crime charged, whereas s. 634
allotted to the Crown 48 automatic stand asides and 4 peremptory
challenges.
52Speaking for the majority, Cory J. found that s. 634 was
inconsistent with the accused’s right to a fair trial by an
impartial jury under s. 11(d) of the Charter. At p. 512, he
explained why the existing regime was offensive:
A petition is frequently made that we not be
led into temptation. The impugned provision
of the Criminal Code provides the tempting
means to obtain a jury that appears to be
favourable to the Crown. The section is so
heavily weighed in favour of the Crown that
viewed objectively it must give that legal
fictional paragon, the reasonable person,
fully apprised of the manner in which a jury
may be selected, an apprehension of bias.
This must be so since the jury, as a result
of the selection process, would appear to be
favourable to the Crown. It seems to me that
so long as this provision exists it may be
used and on occasion will be used to select a
jury that appears to be favourable to the
Crown.
53As this passage illustrates, Cory J. was not impressed by
the argument that as quasi-judicial officers, Crown attorneys
could be trusted to always act fairly in the selection of a jury.
He returned to this subject at the bottom of p. 512:
Unfortunately, it would seem that whenever
the Crown is granted statutory power that can
be used abusively then, on occasion, it will
indeed be used abusively. The protection of
basic rights should not be dependent upon a
reliance on the continuous exemplary conduct
of the Crown, something that is impossible to
monitor or control. Rather the offending
statutory provision should be removed.
54In view of his conclusion that the integrity of the jury
selection process ought not to be left to the good graces of
Crown counsel, Cory J. found it unnecessary to trace the history
of stand asides or to comment on their utility in the context of
the modern-day criminal jury trial. That analysis was, however,
undertaken by both Stevenson J. in his separate concurring
reasons and Gonthier J. in his dissenting opinion.
55In his concurring reasons at pp. 523-531, Stevenson J.
engaged in an extensive review of the history and purpose of
stand asides. Of particular importance for present purposes is
his discussion at p. 525 of R. v. Mason, a 1981 decision of the
English Court of Appeal:
In R. v. Mason, [1981] Q.B. 881 (C.A.), the
history of stand-bys was considered. At pp.
889-90 Lawton L.J. refers to a quotation from
Lord Campbell C.J. that a stand-aside is the
equivalent of a peremptory challenge which
could be exercised until the whole panel had
been called. This right may be exercised
without valid proveable objection. At p.
888, the court gives as an example of the use
of the stand-by an instance where a poacher
might properly be stood by where the charge
involves wounding a gamekeeper while
poaching. The court noted that this juror is
unlikely to be impartial. So it is clear
that ‘partiality’ may be considered in
exercising the power. [Emphasis added.]
56Having concluded that juror partiality “could be considered
in exercising the power,” Stevenson J. turned his attention to
the primary submission put forward by the Crown in support of its
position that the existing regime did not offend s. 11(d) of the
Charter. At pp. 526-527, he framed that submission as follows:
The Crown also claims it acts in its quasi-
judicial role and uses the stand-by to
exclude those people who are inappropriate
but whose objectionability neither fits
within the boundaries of s. 567 (now s. 638)
[challenge for cause] nor is egregious enough
to warrant the utilization of a peremptory
challenge. It also argues that the modern
justification for its power to challenge is
to provide a balanced selection of jurors.
The Crown claimed it uses the challenges only
within its quasi-judicial role: it seeks only
to secure an impartial jury and not one
predisposed towards the Crown’s case.
[Emphasis added.]
57Stevenson J. refused to give effect to this argument. As
the following excerpts at p. 527 indicate, although he thought it
proper for the Crown to use the stand-by power to remove jurors
who might be partial to the accused he, like Cory J., was not
prepared to leave the integrity of the jury selection process to
the Crown:
While I agree that the stand-by may be used
beneficially I do not think we can rely on
professed good intentions to uphold such a
disparity. … It is not unreasonable to think
that there are times when the Crown
challenges or stand-bys are motivated by an
anxiety to secure a conviction rather than a
strictly quasi-judicial interest in the
fairness of the trial. It is, indeed, proper
for the Crown to use the process to put aside
potential jurors who may be partial to the
accused. In the context of the jury trial
“impartial” means “indifferent” and the
peremptory powers enable the parties a
limited power to exercise subjective
assessments of that indifference. What
cannot be justified to the observer of the
process is granting the Crown a greater
opportunity to carry these assessments into
the selection process. [Emphasis added.]
58In attempting to discern whether Parliament intended the
words “any other reasonable cause” in s. 633 to include the
subject of juror partiality, Stevenson J.’s opinion is helpful
because it underscores the fact that historically, one of the
recognized functions of the stand-by was to put aside jurors who
might be partial.
59While Stevenson J. touched on the functional utility of the
stand-by in the jury selection process, it was Gonthier J. who
fully developed the subject in his dissenting reasons at pp. 489-
60Unlike his colleagues, Gonthier J. approached the
constitutional issue from the point of view that as public
officers, Crown attorneys can be trusted to act fairly in the
selection of a jury (pp. 495-497). Their role in the jury
selection process under the existing regime, he observed, was to
ensure that the 12 persons chosen to act as jurors embodied the
three prerequisites of a properly constituted jury –
impartiality, representativeness and competence (p. 499). To
fulfil its role, Gonthier J. considered it essential that the
Crown have available to it a considerable degree of flexibility
in the jury selection process. Unlike the United States and the
United Kingdom where the element of flexibility was to be found,
at least in part, in the discretion given to trial judges to
excuse, the same did not hold true for Canada. In Canada, the
element of flexibility was found in the Criminal Code and as
Gonthier J. explained at p. 449, the means was the stand aside
provision:
In the Code, not only is there a list of
grounds for challenge for cause in s. 567(1)
of the Criminal Code, but this list is closed
by s. 567(2) of the Code. The scope for
challenges for cause is therefore limited,
unlike in American law. Furthermore, pre-
screening of prospective jurors through
direct questioning from the judge is confined
to obvious cases where consent of counsel can
be presumed, following the strand of case-law
culminating in Sherratt, supra. Canadian law
does not give the trial judges powers to
excuse of the same breadth as in the United
States or the United Kingdom. It does not put
this necessary element of flexibility, in
dealing with particular prospective jurors in
particular cases, in the hands of the court
or of court officers.
Whereas the United States and the United
Kingdom rely on the trial judge’s discretion
or extensive challenge for cause procedures,
the Canadian solution to this problem is to
allow the Crown, through means put at its
disposal, to exclude a prospective juror from
the jury. Therein lies the role of the Crown
in the Canadian jury selection process.
Through this role, in conformity with its
general duties, the Crown addresses the need
to be able to exclude prospective jurors who
would not fall under any of the statutory
grounds of exclusion but whose presence on
the jury would nevertheless impair its
impartiality, its representativeness or its
competence. It provides the element of
flexibility.
The means provided by the Code for the
exercise of Crown duties during jury
selection is s. 563, where the prosecutor
receives powers of peremptory challenge and
stand-by. As mentioned previously, it is
significant that Parliament, when it last
addressed the issue of stand-bys in 1917, did
not choose to abolish them but rather to
establish a uniform limit in numbers beyond
which judicial authorization is required.
Crown stand-bys (the same reasoning can be
applied to peremptory challenges) had then
and still have a function and an importance
of their own in the jury selection process.
[Emphasis added.]
61In my view, Gonthier J.’s analysis is instructive for two
reasons. First, it legitimizes the use of the stand-by power as
a means of putting aside jurors whose presence on the jury might
impair its impartiality. Second, it identifies the stand-by as
the mechanism chosen by Parliament to provide the important
element of flexibility in the jury selection process.
62Significantly, as a result of Bain, the problem confronting
Parliament was not its choice of mechanism but its choice of
messenger. Parliament had been told that the integrity of the
jury selection process could not be left to the good intentions
of Crown counsel. Having identified the problem, the Supreme
Court left it to Parliament to find the solution.
63Manifestly, Parliament had a number of options available to
it. Had it been of the view that there was little modern
justification for the continued existence of the stand-by power,
it could have abolished it. Instead, it chose to preserve it,
largely I believe, for the reasons enunciated by Gonthier J. in
Bain, supra. Like Gonthier J., Parliament recognized that the
stand-by provides the element of flexibility needed to ensure an
impartial, representative and competent jury. At the same time,
Parliament realized that the power to stand aside had to be
removed from the Crown and placed in the hands of a neutral
arbiter. In choosing to enact what is now s. 633 of the Code, it
achieved both goals.
64Given my conclusion that the stand-by was retained to
provide the element of flexibility in the jury selection process
and bearing in mind that one of its recognized uses was to put
aside jurors who might be partial, if Parliament had intended to
eliminate juror partiality as one of the “reasonable causes” for
which jurors can properly be stood aside, I am satisfied that it
would have said so expressly. The fact that it did not leads me
to believe that the words “any other reasonable cause” in s. 633
include the subject of juror partiality.
65I find support for this conclusion in the June 22, 1992
minutes of the Standing Senate Committee on Legal and
Constitutional Affairs. Appearing before the Committee on behalf
of the Department of Justice, Criminal Law Policy Section were
Mr. Michael Zigayer and Ms. Heather Holmes.
66The minutes reflect a full discussion of Bill C-70. Of
particular importance are the following excerpts referable to s.
633:
Senator Neiman: … Does the judge have any
role to play at all in the selection of a
jury?
Mr. Zigayer: Yes, and the judge will have a
larger role as a result of some of these
amendments. The provision that the Supreme
Court struck down as perhaps giving an
appearance of unfairness in the fashioning of
a jury was that which gave the prosecutor the
right to stand aside up to forty-eight
prospective jurors.
Senator Neiman: I see.
Mr. Zigayer: That power to stand prospective
jurors aside is now being given to the judge.
…
Senator Hastings: With respect to s. 633
where the judge can now direct a prospective
juror to standby for reasons of personal
hardship or any other reasonable cause … are
there any guidelines as to what constitutes
personal hardship or reasonable cause? Is
that in the hands of the judge?
Ms. Holmes: There are no guidelines set out
in the Bill. It would be left to the judge
to make the decision…
The whole notion of a judge being given the
discretion to excuse or stand a juror aside
is an attempt to fill the void that is
created by the repeal of the Crown’s stand-
aside power, which traditionally has been
exercised almost always in a completely
beneficial way, rather than in an abusive
way.
…
Mr. Zigayer: …I would expect that judges
would invite the persons from the jury panel
to indicate right at the outset, before we
start the selection of a jury, if any of them
had any problems with serving. For example,
the case I raised earlier about the person
just having finished a week of jury duty on
another case, he might want to get back to
his business and give someone else the
opportunity to sit on a jury.
Senator Hastings: You are saying that the
judge might invite responses to that sort of
question before they ever start empanelling
the jury. It is up to the prospective juror
to make his cause known, is it?
Mr. Zigayer: At that point?
Senator Hastings: At that point.
Mr. Zigayer: Yes. For example, one would
also expect the judge to invite anyone on the
panel who has some relationship with any of
the witnesses of the Crown or the accused to
identify themselves right at the outset, so
that they can be excused or stood aside.
Then we proceed with those who really are
eligible candidates. [Emphasis added.]
67I cite these excerpts from the Senate Committee fully
mindful of their limited value in cases such as this where the
issue is legislative intent.4 That said, I note that in the
second of his two examples, Mr. Zigayer envisaged the use of
stand-bys for precisely the reason given by the trial judge in
this case – to put jurors aside who have some relationship with
the Crown witnesses or the accused. To the limited extent that
this type of evidence can be used to discern Parliament’s intent,
I find Mr. Zigayer’s comments far more complete and more
instructive than those of Mr. Rob Nicholson relied on by the
appellant at para. 41 above.
68In reaching my conclusion, I have not ignored the
appellant’s submission that the trial judge erred in failing to
interpret s. 633 in conformity with the principles enunciated in
Sherratt, supra. In my view, that submission is without merit.
69At the time Sherratt was decided, the Criminal Code was
silent on the right of trial judges to excuse jurors for any
reason. Nonetheless, it was accepted at common law that trial
judges had the authority to excuse jurors who were obviously
partial. Sherratt affirmed this principle while at the same time
making it clear that under the existing statutory regime, the
trial judge’s right to pre-screen jurors for partiality extended
only to cases of obvious partiality.
70Significantly, in Sherratt, the Supreme Court did not
suggest that Parliament could not broaden the right of trial
judges to pre-screen jurors for partiality if it saw fit to do
so. For reasons already outlined, I am satisfied that in
enacting s. 633, Parliament intended to do just that. It
follows, in my view, that Sherratt is not decisive of the issue
at hand.
71I have also taken into account the appellant’s submission
that if Parliament had intended to include the subject of juror
partiality in s. 633, it would have framed s. 633 in terms
identical to s. 632. To give effect to this argument, I would
have to be satisfied that in enacting s. 633, Parliament made a
conscious decision to scrap the time-honoured “beneficial” use of
stand asides as a means of putting aside jurors whose presence on
the jury might impair its impartiality. Considering that the
important function of standing aside jurors whose presence on the
jury might impair its impartiality had been entrusted by
Parliament to the Crown since 1892,5 I see no reason to think
that in enacting s. 633, Parliament, in an about face, chose to
remove that power from the hands of the trial judge.
72In choosing to spell out two specific forms of partiality
for which jurors could be excused under subsections (a) and (b)
of s. 632, Parliament was not adding a new dimension to the
powers of a trial judge to pre-screen jurors for partiality. It
was simply codifying the existing common law. By contrast, in
shifting the power to stand jurors aside from the Crown to the
trial judge, Parliament intended to add a new dimension to the
role of trial judges in the pre-screening process. Trial judges
became empowered to use the stand-by power for reasons considered
beneficial in the past, one being to stand aside jurors whose
presence on the jury might impair its impartiality.
73The one remaining matter that I feel I must address is the
issue of prejudice. The appellant takes the position that the
procedure adopted by the trial judge was prejudicial because it
impinged on his ability to exercise his peremptory challenges in
an informed manner. Had the suspect jurors been left in the jury
pool, as the appellant submits should have been the case, he
would not have had to reserve peremptory challenges in the event
their recall proved necessary.
74If the appellant is right in this, then I have misconstrued
s. 633. In keeping with the presumption of interpreting
legislation in compliance with constitutional norms, Parliament
cannot be taken to have intended the words “other reasonable
cause” to include juror partiality if to do so would occasion
prejudice to the accused, or for that matter the Crown. For
reasons which will become apparent however, I am of the view that
the appellant’s concerns are groundless.
75The appellant submits that the procedure adopted by the
trial judge impinged on his ability to exercise his peremptory
challenges in an “informed” manner. I see no merit in this
submission. If by “informed,” the appellant is referring to
information about a prospective juror that might prove helpful in
deciding whether to use a peremptory challenge, the impugned
procedure had no bearing on this whatsoever. Had the trial judge
left the suspect jurors in the jury pool, the appellant would
have had precisely the same information then as he had later.
76The appellant’s real complaint, as I perceive it, is that
the procedure in question resulted in his having to save some
peremptory challenges for the stand-by jurors that he might have
used to remove other unwanted jurors. In my view, this argument
suffers from a number of flaws.
77First, the concern raised is not created by the procedure
adopted by the trial judge. The potential recall of jurors who
were stood by for reasons of suspected partiality dates back to
1892 when the power to stand jurors aside was conferred on the
Crown. However, prior to this case, I am unaware of any
complaint that the process was unfair or prejudicial to the
accused. Accepting the appellant’s submission would thus call
into question the integrity of every jury trial conducted in this
country for the past century, a troublesome result to say the
least.
78Second, the appellant’s argument creates a no-win situation.
Had the trial judge left the suspect jurors in the jury pool, the
appellant could just as easily have argued that this was unfair
because it put him in the position of having to use his
peremptory challenges on the suspect jurors as opposed to other
unwanted jurors.
79Third, if choosing to preserve peremptory challenges for
jurors yet to be called results in prejudice, then the entire
jury selection process is flawed. Much as counsel might like to
have an unlimited number of peremptory challenges, such is not
the case. Counsel are given free rein to use their allotted
peremptory challenges whenever they wish. If they choose to
exhaust them at the outset of the jury selection process, that is
their business. On the other hand, if they decide to preserve
them for jurors yet to come, they may do so. There is nothing
unfair or prejudicial about this. Both sides are in the same
boat. The rules that apply to one apply equally to the other.
80It follows, in my view, that the procedure adopted by the
trial judge occasioned no prejudice to the appellant.
Accordingly, I would not give effect to this branch of the
argument.
ALLEGED ERRORS IN THE CHARGE TO THE JURY
81The appellant raises the following two complaints about the
trial judge’s charge:
(a) in the context of his instructions on motive, the trial
judge failed to give a limiting instruction on the use
the jury could make of evidence that portrayed the
appellant as a person of bad character; and
(b) having instructed the jury to proceed with caution
before accepting the testimony of Steven Gorrill, the
trial judge erred in identifying as “potentially
confirmatory” items of evidence that were at best
neutral.
(a) Failure to give a limiting instruction
82As indicated, in support of its position that the appellant
intended to kill the deceased, the Crown relied on a substantial
body of evidence from which the jury could find that the
appellant was jealous of the deceased and obsessed with her to
the point that if he could not have her, nobody would. This
evidence took various forms, including threats to kill the
deceased if he could not have her, enlisting the services of a
friend to “spy” on the deceased; and checking up on the deceased
at her place of employment.
83The trial judge properly instructed the jury that this body
of evidence went to the issue of motive and that it could be
considered, along with all of the other evidence, in determining
whether the killing was intentional. He did not, however, warn
the jury against using it to infer that the appellant was a
person of bad character and therefore more likely to have
committed the offence of murder. The appellant submits, for the
first time on appeal, that this non-direction constituted
reversible error. I disagree.
84Contrary to the submission of the Crown, I accept that the
evidence in question tended to portray the appellant as a person
of bad character. The picture that emerges is that of a man
literally consumed with jealousy and obsessed with the deceased
to the point that he would see her dead before losing her. Even
if I am wrong in including his excessive jealousy and
possessiveness in the mix, there is no getting around the fact
that the death threats against the deceased, in and of
themselves, constitute evidence of bad character.
85That said, the law in this province is clear that where
evidence of disreputable conduct relating directly to the victim
is admissible as evidence of motive, the need to give the usual
limiting instruction does not arise. Two authorities from this
court are directly on point, the first being R. v. Jackson
(1980), 1980 2945 (ON CA), 57 C.C.C. (2d) 154, the second R. v. Merz, [1999] O.J.
No. 4039.
86In Jackson, the accused was charged with murdering his wife.
The Crown led evidence from the deceased’s mother that Jackson
had threatened to kill the deceased on two occasions. Speaking
for the court, Martin J.A. found, at p. 167, that this evidence
was properly admitted as evidence of motive. He further held, at
pp. 168-169:
We are also of the view that where evidence
of threats against the victim are admissible
on the issue of motive, there is no
requirement that the trial Judge should
direct the jury that they are not to infer
from the threats that the accused is a person
who, from his criminal character or conduct,
is likely to have committed the crime with
which he is charged. Evidence of motive is a
circumstance to be considered along with all
the other circumstances. [Italics in
original. Emphasis added.]
87In Merz, supra, the appellant was charged with first degree
murder in connection with the shooting death of his estranged
spouse. On the night in question, he and his sixteen-year-old son
met the deceased and her twelve-year-old daughter at a
restaurant. After a long discussion, the deceased, who was said
to be visibly shaken, got up to leave. The appellant was then
heard to say, “Well, fuck you bitch” at which point the deceased
was shot three times.
88The appellant’s defence at trial was that his son fired the
first, and fatal shot. In an effort to protect his son, he
picked up the gun and fired two more shots into the deceased.
The Crown on the other hand, maintained that the appellant was
responsible for all three shots and that the murder was planned
and deliberate. In support of its position, the Crown relied in
part on the evidence of two witnesses who testified that the
deceased had told them that the appellant had made death threats
against her on two occasions in the months before her death.
Over the objection of defence counsel, the trial judge admitted
this testimony as evidence of motive and he instructed the jury
accordingly. He did not, however, provide a limiting
instruction.
89The appellant was convicted of first degree murder and on
appeal, he submitted that the trial judge should have told the
jury that they could not use the previous threats to infer that
he was a violent person and therefore more likely to have
murdered the deceased. Speaking for the court, Doherty J.A.
rejected this submission. At para. 59, after referring to
Jackson, supra, he stated:
I agree with the view expressed in Jackson.
The evidence of the threats made by the
appellant was evidence of motive which, in
turn, constituted circumstantial evidence of
identity and intent. I see no reason to warn
the jury against using the evidence to infer
propensity and hence to infer that the
accused committed the crime when the more
direct and powerful inference to be drawn
from that evidence is that the accused had a
motive to kill Ms. Murray. The trial judge
properly instructed the jury as to how they
could use evidence of motive. The limiting
instruction normally given when evidence of
prior bad acts by the accused is placed
before the jury would make no sense in the
context of evidence of motive. An
instruction like that called for by the
appellant could only serve to confuse the
jury. [Emphasis added.]
90In my view, Jackson and Merz are dispositive of the issue at
hand. The evidence of disreputable conduct related directly to
the deceased and was admissible to prove motive. It follows that
the trial judge was not required to give the usual limiting
instruction. Accordingly, I would not give effect to this ground
of appeal.
(b) Evidence capable of confirming the testimony of Stephen
Gorrill
91Gorrill was admittedly an important Crown witness. If
believed, his evidence undermined the appellant’s version of the
events surrounding the killing.
92As might be expected, Gorrill was subjected to a vigorous
and exacting cross-examination. Defence counsel mounted a full
scale attack on his character and challenged virtually every
aspect of his testimony in the time frame surrounding the
killing. Without going into detail, suffice it to say that the
cross-examination exposed numerous inconsistencies in Gorrill’s
evidence and showed him to be a person of disreputable character
and a self-confessed perjurer.
93In view of this, the trial judge considered it appropriate
to warn the jury to proceed with caution before relying on his
testimony to convict the appellant. After summarizing the
evidence which portrayed Gorrill as a person of disreputable
character, the trial judge instructed the jury as follows:
It would be dangerous to accept the evidence
of this witness unless there is some evidence
which you find to be supportive of his story.
I will point out some of the evidence which
you may find to be supportive. Again, in
considering whether to accept it as being
supportive you should ask yourselves whether
the evidence strengthens your belief that he
is telling the truth. If it does not satisfy
that test it is not supportive of his story.
The trial judge followed up this instruction by reminding the
jury of the inconsistencies in Gorrill’s testimony. He then
identified eleven items of evidence that the jury “might find to
be supportive of his story.” The items of evidence are
summarized in the factums submitted by the parties and I do not
propose to repeat them. Suffice it to say that in the main, they
involve the testimony of various witnesses who lent support to
salient features of Gorrill’s testimony in the time frame
surrounding the killing.
94By way of example, several witnesses who either saw or spoke
to Gorrill shortly after the shooting testified that he was
asking if they knew the whereabouts of the deceased. One
witness, Paul Flaherty, testified that Gorrill called him at
about 8:20 p.m. on the night of the shooting, stating that the
appellant had just pointed a gun at his head and wondering
whether the appellant would shoot someone. Other witnesses
testified that the deceased was having car trouble in and around
March 17th and two police officers testified to seeing a dog
running loose on the front lawn of the deceased’s trailer.
95The appellant submits that the various items of evidence
were incapable of confirming Gorrill’s testimony because they did
not lend support to the critical aspect of his evidence, namely,
that he ran from the trailer before the shooting. Rather, they
related to portions of his testimony that were at best neutral
and as such, they did not meet the test for confirmatory
evidence.
96I disagree with this submission. In my view, it is a
misguided attempt to turn back the hands of time and revert to an
era when trial judges were plagued with the difficult, if not
impossible task, of determining whether a particular item of
evidence was or was not capable of constituting corroboration.
In accordance with the rule in R. v. Baskerville, [1916] 2 K.B.
658, to be corroborative, the supporting evidence had to
implicate the accused in a material particular and trial judges
were required to warn jurors that it would be dangerous to
convict on the basis of accomplice evidence unless the supporting
evidence met the test for corroboration.
97As is well known, that era came to an end with the Supreme
Court’s landmark decision in R. v. Vetrovec (1982), 67 C.C.C.
(2d) 1. Speaking for the court, Dickson J. took direct aim at
“the rule in Baskerville.” Referring at p. 6 to the law of
corroboration as “one of the most complicated and technical areas
of the law of evidence”, Dickson J. believed that the time had
come to wipe the slate clean and start afresh with what he
described as a “common sense” approach to the evidence of suspect
witnesses. Part of that approach meant doing away with the
notion that corroboration could only be found in evidence
directly implicating the accused in a material particular. As he
explained at pp. 13-14, this was the most serious difficulty
associated with the Baskerville rule:
The third and perhaps most serious difficulty
associated with the Baskerville definition is
that the definition itself seems unsound in
principle. Prior to the judgment of Lord
Reading, there had been controversy over
whether corroborative evidence must implicate
the accused, or whether it was sufficient if
it simply strengthened the credibility of the
accomplice. Lord Reading settled the
controversy in favour of the former view.
With great respect, on principle Lord
Reading’s approach seems perhaps over-
cautious. The reason for requiring
corroboration is that we believe the witness
has good reason to lie. We therefore want
some other piece of evidence which tends to
convince us that he is telling the truth.
Evidence which implicates the accused does
indeed serve to accomplish that purpose but
it cannot be said that this is the only sort
of evidence which will accredit the
accomplice. This is because, as Wigmore
said, the matter of credibility is an entire
thing, not a separate one (ibid., p. 424):
… whatever restores our trust in him
personally restores it as a whole; if we
find that he is desiring and intending
to tell a true story, we shall believe
one part of his story as well as
another; whenever, then, by any means,
that trust is restored, our object is
accomplished, and it cannot matter
whether the efficient circumstance
related to the accused’s identity or to
any other matter. The important thing
is, not how our trust is restored, but
whether it is restored at all.
[Emphasis added.]
98In light of Vetrovec, there is only one question that must
be asked in deciding whether evidence is capable of being
confirmatory – does the evidence strengthen our belief that the
suspect witness is telling the truth?: see Vetrovec at p. 18.
For the most part, I am satisfied that the evidence identified by
the trial judge meets this test. No doubt, some of the items
referred to are of questionable value. By the same token, the
trial judge did not refer the jury, as he might have, to the
strong forensic evidence led by the Crown; nor did he mention
Sergeant Payne’s evidence that Gorrill appeared visibly shaken
upon learning of Ms. Carnochan’s death.
99If, as a result of the supporting evidence, the jury was
satisfied that Gorrill was telling the truth about salient
matters in the time frame surrounding the killing, then the jury
was entitled to take this into account in deciding whether his
description of the events at the trailer could safely be relied
upon to find the appellant guilty of murder. In my view, that is
precisely the “common sense” approach to confirmatory evidence
that Dickson J. had in mind in Vetrovec.
100Accordingly, I would not give effect to this ground of
appeal. That said, I do not wish to be taken as endorsing the
evidentiary review undertaken by the trial judge.. Speaking for
the majority in R. v. Bevan (1993), 1993 101 (SCC), 82 C.C.C. (3d) 310 (S.C.C.),
Major J. pointed out at p. 325 that this type of exhaustive
review is neither required nor appropriate:
The extent to which the trial judge should
refer to potentially corroborative evidence
depends upon the circumstances of the case,
although it is obviously not required, nor
would it be appropriate, that the potentially
corroborative evidence be reviewed
exhaustively. [Emphasis added.]
101In this case, the trial judge set out the test the jury
was to apply in deciding whether the evidence was supportive. He
explained that to be supportive, the evidence had to strengthen
the jury’s belief that Gorrill was telling the truth. If it did
not satisfy that test, then it was not supportive. In accordance
with Bevan, supra, to the extent the trial judge deemed it
appropriate to make some reference to evidence that might be
supportive of Gorrill’s testimony, he should have restricted his
review to a few pertinent examples.
CONCLUSION
102I see no merit in any of the grounds of appeal raised.
I would dismiss the appeal against conviction.
Released: February 16, 2000
“M.J. Moldaver J.A.”
“I agree: J.J. Carthy J.A.”
“I agree: J.C. MacPherson J.A.”
1 Defence counsel made it clear, for the record, that he had
entered into these procedural agreements mindful of his duty to
obey the court’s ruling but that he was not to be taken as
resiling from his original objection.
2 Bill C-70 was enacted as 1992, c. 41, s. 2.
3 The appellant also made reference to a subsequent decision, R.
v. Church of Scientology (1997), 1997 16226 (ON CA), 116 C.C.C. (3d) 1 (Ont. C.A.)
and in particular, Rosenberg J.A.’s comment at p. 47 that jurors
coming forward may be “directed to stand-by for reasons of
personal hardship … under s. 633.” Contrary to the submission of
the appellant, I am not at all persuaded that this passing remark
made in an unrelated context lends support to his position that
s. 633 relates only to matters of personal hardship.
4 In this context, parliamentary debates may be used to determine
the mischief sought to be redressed by the legislation under
consideration. See for example Thomson v. Canada, [1998] 3 F.C.
108 at 134-5 (F.C.A.); Morguard Properties Ltd. et al. v. City of
Winnipeg (1983), 1983 33 (SCC), 3 D.L.R. (4th) 1 at 4 (S.C.C.); R. v. Vasil
(1981), 1981 46 (SCC), 121 D.L.R. (3d) 41 at 55 (S.C.C.) and R. v. Proulx
(unreported decision of the Supreme Court of Canada, January 31,
2000 at pp. 14 and 21).
5 Section 668(9) of the Criminal Code, S.C. 1892, c. 29 granted
the Crown an unlimited power to stand jurors aside. Eventually,
this was reduced to 48 stand asides pursuant to An Act to amend
the Criminal Code (respecting jurors) S.C. 1917, c. 13, S. 1.
