Her Majesty the Queen v. Poitras [Indexed as: R. v. Poitras]
57 O.R. (3d) 538
[2002] O.J. No. 25
Docket No. C34214
Court of Appeal for Ontario
Doherty, Rosenberg and Borins JJ.A.
January 11, 2002
Criminal law -- Charge to the jury -- After-the-fact conduct (consciousness of guilt) -- Accused charged with first degree murder -- Accused arguing that after-the-fact conduct could not be used to determine level of culpability for murder -- Deceased murdered in own home once shared with spouse and accused -- Spouse leaving deceased and deceased disappearing shortly afterwards -- Accused and deceased's spouse cleaning up signs of killing and cohabiting within days of deceased's disappearance -- Evidence supporting inferences that accused hid parts of deceased's dismembered body to delay its discovery and identification -- Accused told lies that he saw deceased leave town to lessen suspicion arising from living with deceased's spouse shortly after his disappearance -- Such after-the fact conduct could be relevant to whether murder planned and deliberate -- Appeal from conviction dismissed.
Criminal law -- Evidence -- After-the-fact conduct (consciousness of guilt) -- Accused charged with first degree murder -- Accused arguing that after-the-fact conduct could not be used to determine level of culpability for murder -- Deceased murdered in own home once shared with spouse and accused -- Spouse leaving deceased and deceased disappearing shortly afterward -- Accused and deceased's spouse cleaning up signs of killing and cohabiting within days of disappearance -- Evidence supporting inference that accused hid parts of deceased's dismembered body to delay its discovery and identification -- Accused told lies that he saw deceased leave town to lessen suspicion arising from living with deceased's spouse shortly after disappearance -- Such after-the-fact conduct could be relevant to whether murder planned and deliberate -- Appeal from conviction dismissed.
Criminal law -- Murder -- Planned and deliberate murder -- Accused charged with first degree murder of man whose wife accused started living with shortly after deceased's disappearance -- Evidence accused telling lies that deceased left town and disposing of parts of deceased's dismembered body -- After-the-fact conduct may be relevant to whether murder was planned and deliberate -- Appeal from conviction dismissed.
Criminal law -- Trial -- Charge to the jury -- Trial judge giving jury portion of charge in writing -- Jury told that written instructions dealing with only specific issues and to be considered along with rest of charge -- Written materials balanced and complete on particular topics but preferable for written material to have included charge on reasonable doubt and presumption of innocence -- Appropriate to give juries written instructions especially if charge to the jury lengthy and complex -- Appeal from conviction dismissed.
Criminal law -- Admissibility of accused's prior criminal record (Corbett application) -- Accused charged with murder seeking to exclude lengthy criminal record before testifying -- Trial judge excluding weapons and driving offences but not extensive record for offences of dishonesty -- Trial judge holding that accused could not testify about particulars of prior record -- Defence counsel choosing not to lead record during examination-in-chief -- Accused cross-examined about record but prevented from testifying about sentences for past crimes in re-examination to show they were not serious offences -- Trial judge's decision not to exclude offences of dishonesty appropriate but erred in preventing accused from eliciting particulars of past offences -- Jury given proper limiting instruction about use of criminal record when evidence led and directions repeated in charge to jury -- Accused not prejudiced as result of error -- Appeal from conviction dismissed.
Criminal law -- Charge to the jury -- Accused testifying -- Trial judge instructing jury that when assessing credibility of accused's evidence could consider accused's interest in outcome of proceeding -- Jury correctly instructed presumed innocent and bore no onus of proof -- Jury would not have been misled regarding burden of proof nor would direction about accused's interest in proceedings have supplanted correct instruction about presumption of innocence -- Appeal from conviction dismissed.
The accused was charged with first degree murder. He, the deceased and the deceased's common-law wife, N, had been living together. N ended her relationship with the deceased and left the home. The deceased was last seen alive two weeks later. He was shot three times in his home, almost execution style, and the accused's rifle was identified as the probable murder weapon. Parts of his dismembered body were found in various locations. A large quantity of the deceased's blood was found in the back of the accused's truck. A cloth soaked in the deceased's blood was an exact match to cloth seized from the accused's garbage. The accused and N began living together within a week of the deceased's disappearance. The accused used the deceased's credit cards and bank card and forged cheques in his name. He and N did an extensive clean-up of the house where the deceased had been killed. The accused told a friend that he had taken the deceased to the bus station on the day he was last seen alive, and saw him board a bus marked "Timmins". No bus marked "Timmins" left the bus station on that date. It was the theory of the Crown that the accused decided to kill the deceased so that he and N could live together as man and wife.
The accused moved for a directed verdict on the charge of first degree murder at trial, arguing that the after-the-fact conduct potentially attributable to him (e.g. the dismemberment and hiding of the body parts) could not assist the jury in determining his level of culpability. The motion was dismissed. The accused was convicted of first degree murder. He appealed.
Held, the appeal should be dismissed.
The trial judge did not err in refusing to direct a verdict of acquittal on the charge of first degree murder. The relevance of after-the-fact conduct to the issue of whether a murder was planned and deliberate depends on the circumstances of the particular case. If, as a matter of common sense and human experience, the after-the-fact conduct considered in combination with the rest of the evidence is reasonably capable of supporting the inference that the murder was planned and deliberate, then the evidence is relevant to that issue. One could infer from the dismembering and hiding of the parts of the body in different locations that the accused didn't want the body found and wanted people to believe that the deceased left for Timmins. This would allow the accused and N to live together immediately after the deceased disappeared without raising suspicion. This would provide strong evidence of planning and deliberation.
The trial judge did not err in instructing the jury that the accused had an interest in the result and that it could bear that interest in mind in assessing his credibility. A reference to the accused's obvious interest in the outcome of a case is not in and of itself reversible error. The instruction will be fatal to a conviction if it erodes the instruction as to the presumption of innocence and the burden of proof. No such erosion occurred in this case. Immediately after referring to the accused's interest in the result, the trial judge stressed that there was no onus on the accused and repeated the presumption of innocence.
The accused had a lengthy criminal record which included many crimes of dishonesty, two convictions for driving while disqualified and two convictions for carrying a concealed weapon. Apart from the convictions for driving while disqualified, he had never received a jail sentence. Before the accused testified, defence counsel brought a motion to exclude evidence of the criminal record. The trial judge ruled that the convictions for crimes of dishonesty were admissible but that the convictions for driving while disqualified and carrying a concealed weapon would not be admitted. The trial judge did not err in refusing to exclude all of the criminal record. The convictions involving dishonesty had direct relevance to the accused's credibility as a witness. The trial judge did err in ruling that defence counsel could not bring out the specifics of the criminal record during examination-in-chief and in not permitting defence counsel to re-examine the accused to elicit the penalties imposed on the various convict ions for the crimes of dishonesty. However, those two errors did not prejudice the accused.
The trial judge's instructions to the jury fell into three parts. The first part dealt with general matters such as reasonable doubt. The second part addressed the law specifically applicable to the accusations against the accused. The third part dealt with administrative matters such as the selection of the foreman. The jury was provided with a written version of part two of the instructions, covering circumstantial evidence, expert evidence, the essential elements of the charge, the possible verdicts, evidence of motive and opportunity, and evidence of a criminal record. At the end of the written instructions, the trial judge emphasized the presumption of innocence, the burden of proof, the jury's obligation to use its own recollection of the evidence in determining the facts, the circumstantial nature of the Crown's case, and the need to consider the evidence in its totality. Generally, the trial judge did not err in providing written material to the jury. The time has come to embrace the use of written material to enhance juror comprehension of oral instructions, particularly where those instructions must be lengthy and complex. However, if a jury is given written material to assist in recalling and applying the oral instructions, it is only sensible to assume that the jury will rely heavily on that written material during its deliberations. Any inaccuracy or inadequacy in the written material, or any confusion or unfairness created by that material is likely to have a serious impact on the validity of any verdict returned by the jury. The procedure followed by the trial judge in this case provides valuable guidance to judges who are disposed to provide written material to a jury. He vetted the material with counsel on two occasions and made several changes to the material in response to counsel's submissions. He alerted the jury at the outset to the fact that they would receive written instructions. The document he gave to the jury was very "reader friendly" and presented a balanced and accurate statement of the applicable legal principles. The trial judge was not required to provide the jury with his entire charge in writing. However, if a jury is to receive a transcript of the instructions on the applicable legal principles, that transcript must include all of the instructions referable to those principles and not just part of the instructions. If a trial judge decides to give a jury a written copy of part of the instructions, he or she should clearly identify the topics to be addressed in the written material and ensure that the written material contains a complete and balanced instruction on those topics. As long as the jury understands that the written material relates to a specific part of the instruction and that it is to be considered along with the rest of the instructions, there is no danger that the jury will be misled simply because they were not provided with a written copy of every word of the trial judge's charge.
In this case, part one of the trial judge's instructions, dealing with the presumption of innocence and reasonable doubt, should have been included in the written material given to the jury. However, the failure to do so did not prejudice the accused. The oral instructions on the presumption of innocence and reasonable doubt were not challenged on appeal. The written material contained a strong reminder of the importance of those principles. Finally, the fact that the jury asked the trial judge to repeat the definition of reasonable doubt indicated that it appreciated the significance of the reasonable doubt instruction and knew how to access that instruction if the need arose in the course of its deliberations.
APPEAL from a conviction on a charge of first degree murder.
R. v. Cathro, 1955 46 (SCC), [1956] S.C.R. 101, 22 C.R. 231, 113 C.C.C. 225, 2 D.L.R. (2d) 270, revg (1955), 1955 451 (BC CA), 22 C.R. 77, 112 C.C.C. 154, 15 W.W.R. 541 (B.C.C.A.); R. v. Ménard, 1998 790 (SCC), [1998] 2 S.C.R. 109, 39 O.R. (3d) 416n, 161 D.L.R. (4th) 621, 228 N.R. 100, 125 C.C.C. (3d) 416, 16 C.R. (5th) 226, affg (1996), 1996 685 (ON CA), 29 O.R. (3d) 772, 108 C.C.C. (3d) 424 (C.A.), consd Other cases referred to R. v. Allen (1999), 1999 BCCA 117, 122 B.C.A.C. 286, 200 W.A.C. 286 (C.A.); R. v. Boyce (1975), 1975 569 (ON CA), 7 O.R. (2d) 561, 23 C.C.C. (2d) 16, 28 C.R.N.S. 336 (C.A.); R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, 28 B.C.L.R. (2d) 145, 85 N.R. 81, [1988] 4 W.W.R. 481, 34 C.R.R. 54, 41 C.C.C. (3d) 385, 64 C.R. (3d) 1; R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378, 132 C.C.C. (3d) 545 (C.A.); R. v. McKenna (2001), 2001 BCCA 2, 151 C.C.C. (3d) 63 (B.C.C.A.); R. v. Ramos-Paz (1998), 1998 7053 (BC CA), 118 B.C.A.C. 309, 192 W.A.C. 309 (C.A.); R. v. S. (W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, 119 D.L.R. (4th) 464, 171 N.R. 360, 93 C.C.C. (3d) 1, 34 C.R. (4th) 1; R. v. St. Pierre (1974), 1974 874 (ON CA), 3 O.R. (2d) 642, 17 C.C.C. (2d) 489 (C.A.); R. v. Stewart (1991), 43 O.A.C. 109, 62 C.C.C. (3d) 289 (C.A.); R. v. Trombley, 1999 681 (SCC), [1999] 1 S.C.R. 757, 238 N.R. 95, 134 C.C.C. (3d) 576, affg (1998), 1998 7128 (ON CA), 40 O.R. (3d) 382, 126 C.C.C. (3d) 495 (C.A.); R. v. Wong, 1978 2367 (BC CA), [1978] 4 W.W.R. 468, 41 C.C.C. (2d) 196 (B.C.C.A.); R . v. Zurmati, [1993] O.J. No. 1520 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46 Authorities referred to "Annotation, Propriety and Prejudicial Effect of Sending Written Jury Instructions with Retiring Jury in Criminal Case", 91 A.L.R. 3d 382 (1997) Bouck, J.C."Criminal Jury Trials: Pattern Instructions and Rules of Procedure" (1993), 72 Can. Bar Rev. 129 Dann, B.M."Learning Lessons and Speaking Rights: Creating Educated and Democratic Juries" (1993), 68 Ind. L.J. 1229 Ferguson, G., and J.C. Bouck, Canadian Criminal Jury Instructions, 3rd ed. (Vancouver: Continuing Legal Education Society of British Columbia, 1994- ) Law Reform Commission of Canada, The Jury in Criminal Trials (Working Paper 27) (Ottawa: Law Reform Commission of Canada, 1980) Lieberman, D. and B.D. Sales"What Social Science Teaches Us About the Jury Instruction Process" (1997), 3 Psychology, Public Policy, and Law 589 Nathanson"Strengthening the Criminal Jury Trial: Long Overdue" (1996), 38 Crim. L.Q. 217 National Judicial Institute"Report on the Jury Instructions Symposium", Criminal Jury Trials (Toronto: March, 1997) Sand and Reiss"A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit" (1985), 60 N.Y.U. Law Rev. 427 Schwarzer, W."Reforming Jury Trials" (1991), 132 F.R.D. 575 Watt"The Education of Criminal Jurors: Plain Talk and Jury Aids" (1998), Proceedings of the Ontario Court (General Division) Spring Education Seminar, National Judicial Institute.
Norman Boxall, for appellant. W. Graeme Cameron, for respondent.
The judgment of the court was delivered by
1DOHERTY J.A.: -- The appellant appeals from his conviction on a charge of first degree murder. Colette Nelson was convicted at the same trial of being an accessory after the fact to that murder. [See Note 1 at end of document] I would dismiss the appeal.
I
2The appellant, the deceased Clifford Blake, and Mr. Blake's common-law wife, Colette Nelson, lived together in September 1995. In early December 1995, Ms. Nelson decided to end her relationship with Mr. Blake, left the home and travelled to Welland, Ontario to stay with her sister.
3The appellant and Ms. Nelson were in close contact in the two weeks following her departure. There was evidence from which it could be inferred that the appellant and Ms. Nelson were romantically involved when she left for Welland. The appellant and Ms. Nelson testified and denied both any romantic involvement prior to late December 1995 and any involvement in Mr. Blake's death.
4Mr. Blake was last seen alive on the evening of December 14, 1995. He was with the appellant. A cloth soaked in Mr. Blake's blood was found on December 22. On January 2, 1996, parts of his dismembered body were found in the bush. Various parts of his body were found in different locations in the following days. The forensic evidence established that Mr. Blake was shot in the head three times in what had all of the appearances of an execution-style killing. The killing occurred in the home that had been shared by the appellant, Mr. Blake and Ms. Nelson. The appellant's rifle was identified as the probable murder weapon. The forensic evidence also revealed that Mr. Blake was lying on the floor of the bedroom in the home when at least one of the three shots was fired into his head. One of those shots came from very close range. Ammunition located in the home was consistent with the ammunition used to fire the fatal shots. A large quantity of Mr. Blake's blood was found in the back of the appellant's truck. The cloth soaked in Mr. Blake's blood that was found on December 22, 1995 was an exact match to cloth seized from the appellant's garbage.
5Within about a week of Mr. Blake's disappearance, Ms. Nelson returned from Welland and she and the appellant began to live together. The appellant used Mr. Blake's credit cards, bank card, and forged cheques in his name on numerous occasions between December 15 and January 3. In the last week of December, the appellant and Ms. Nelson did an extensive clean- up of the house where Mr. Blake had been killed. They cleaned and shampooed the rugs, repainted walls, and reupholstered chairs and a couch. The appellant also pressure cleaned the inside and the outside of his truck, even though it was the dead of winter.
6A few weeks prior to December 14, 1995, the appellant and Ms. Nelson told Mr. Blake's sister that he was planning to go to Timmins and would be gone for good. On December 15, the appellant told a friend that he had taken Mr. Blake to the bus station on the evening of December 14 and saw him board a bus marked "Timmins". There was no evidence that Mr. Blake ever went to Timmins and there was evidence that no bus marked "Timmins" left the bus station on December 14, 1995.
7The circumstantial evidence pointing to the appellant as the killer was overwhelming. There was also ample evidence to support the Crown's theory that the appellant decided to kill Mr. Blake so that he and Ms. Nelson could live together as man and wife. That evidence included the following:
-- Ms. Nelson wanted out of her relationship with Mr. Blake who she knew to be a violent and possessive person.
-- The appellant and Ms. Nelson were romantically involved before Mr. Blake was killed.
-- The appellant and Ms. Nelson spread a false story that Mr. Blake was intending to go to Timmins and the appellant told a friend that Mr. Blake had gone to Timmins on December 14.
-- On the evening of December 14, the appellant spoke with Ms. Nelson twice on the telephone.
-- Within days of the disappearance of Mr. Blake, the appellant and Ms. Nelson were living together.
8The appellant denied that he shot Mr. Blake, and testified that he let him off at the bus station on the evening of December 14, 1995, and never saw him again. He believed that Mr. Blake was going to Timmins, Ontario to live.
II
1. Did the trial judge err in refusing to direct a verdict of acquittal on the charge of first degree murder?
9The appellant moved for a directed verdict on the charge of first degree murder at trial. He argued that the after-the- fact conduct potentially attributable to the appellant (e.g. the dismemberment and hiding of the body parts) could not assist the jury in determining the appellant's level of culpability. He submitted that the evidence of that conduct was equally consistent with second degree murder as with first degree murder and therefore had no evidentiary value on the question of whether the murder was planned and deliberate.
10In rejecting this submission, the trial judge said:
The Crown's theory in this case is that a reasonable inference from all the evidence would be that the accused, Jean-Paul Poitras had planned to murder Cliff Blake to accommodate his future and further involvement with Colette Nelson. The plan included planning [planting] the idea that Cliff Blake had gone to the bush in the Timmins area to visit, or to live. The after-the-fact dismemberment and attempt to hide the body is consistent with and a part of that plan.
In my view, the conduct of Jean-Paul Poitras after the offence, has some relevance to his level of culpability and the jury may draw proper inferences from it when considered together with all the other evidence in their deliberations.
The evidence has or may have utility, quite apart from being an indicator of guilty consciousness, and it is my opinion that it ought not to be taken from the jury, and in view of that and for the reasons that I have stated, the application for directed verdict is dismissed.
11I agree with the trial judge. The relevance of after- the-fact conduct to the issue of whether a murder was planned and deliberate depends on the circumstances of the particular case: R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378, 132 C.C.C. (3d) 545 (C.A.). If as a matter of common sense and human experience, the after-the-fact conduct considered in combination with the rest of the evidence is reasonably capable of supporting the inference that the murder was planned and deliberate, then the evidence is relevant to that issue. For example, evidence that the appellant dismembered the body and hid parts of the body in various locations could support the inference that the appellant did not want the body discovered and wanted people to think that Mr. Blake had left for Timmins. This would allow the appellant and Ms. Nelson to immediately assume cohabitation without attracting suspicion. If the jury drew that inference, it would go a long way toward a finding that the murder was planned and deliberate.
2. Did the trial judge misdirect the jury as to the evidence capable of supporting the inference that the murder was planned and deliberate?
12This argument, like the argument made on the first ground of appeal, was premised largely on the contention that the after-the-fact conduct could not support the inference that the murder was planned and deliberate. For the reasons set out above, I reject that submission. In addition, counsel for the appellant looks at each piece of the evidence referred to by the trial judge as relevant to planning and deliberation in isolation. The evidence must be viewed in its totality.
13In reviewing the evidence relevant to the issue of planning and deliberation, the trial judge highlighted certain "areas in the evidence" which he suggested could assist the jury in determining that issue. All of those areas were logically relevant to the question of planning and deliberation, even though some of the pieces of evidence he reviewed would not, if viewed in isolation, assist on that issue. The trial judge concluded his review of this evidence by saying:
[I]t is the totality of all of the evidence that your memory and your recollection individually and collectively brings you to that must be considered in determining whether the charges have been made out beyond a reasonable doubt . . .
14I see no error in the manner in which the trial judge reviewed the evidence relevant to the question of whether the murder was planned and deliberate.
3. Did the trial judge err in instructing the jury that the accused had an interest in the result and that it could bear that interest in mind in assessing his credibility?
15In assessing the credibility of witnesses, juries are entitled to consider what motive, if any, witnesses, including the accused, have for testifying in a particular way. The motive of the accused is self-evident.
16The trial judge told the jury that it could consider the motives of witnesses in assessing their credibility. Later in his instruction when he dealt specifically with the evidence of the appellant, he said:
Both of the accused gave evidence at this trial. Each was under no obligation to do so. The decision was that of the accuseds. Because an accused takes an oath and testifies, does not mean that you must accept the evidence. As with any witness, you can accept all, part, or none of the accused's testimony. Obviously, an accused person has an interest in the result of the trial. You may fairly bear that in mind in assessing the accused's testimony. There is no onus on the accused to prove anything whether an accused testifies or not. Rejection of an accused evidence is not evidence of guilt. If you disbelieve every word by either of the accused in this case that they have given in the witness box, the onus still remains on the Crown to prove its case beyond a reasonable doubt. Whereas, in this case an accused person has given evidence of the events, which if accepted would result in a verdict of not guilty, it is not simply a question of what version of the facts you prefer. That is, it is not for y ou just to choose between the Crown's version and the version offered by the accused person. You must approach the issue in this way as a matter of law, and do so with respect to each of the accused who have testified. . . .
(Emphasis added)
17The trial judge proceeded to give the jury the three- step approach to the assessment of an accused's testimony set out in R. v. S. (W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, 93 C.C.C. (3d) 1. He immediately repeated that instruction and then said:
The accused person is presumed to be innocent until proven guilty. The burden is on the Crown to prove beyond a reasonable doubt that the offence which you have considered was committed by the accused before a finding of guilt can be made on that charge.
18This court has indicated that trial judges should not isolate the evidence of the accused when instructing juries as to the relevance of motive when assessing the credibility of a witness's evidence. As Carthy J.A. said in R. v. Trombley (1998), 1998 7128 (ON CA), 40 O.R. (3d) 382 at p. 386, 126 C.C.C. (3d) 495 at p. 500 (C.A.), affd 1999 681 (SCC), [1999] 1 S.C.R. 757, 134 C.C.C. (3d) 576:
Isolating the accused in this fashion (as opposed to referring generally to all witnesses) tends to undermine the burden of proof and the presumption of innocence.
19These cases, however, make it clear that a reference to the accused's obvious interest in the outcome of a case is not in and of itself reversible error. The instruction will be fatal to a conviction if it erodes the instruction as to the presumption of innocence and the burden of proof: R. v. Trombley, supra, at p. 386 O.R., p. 500 C.C.C.; R. v. Zurmati, [1993] O.J. No. 1520 (C.A.), leave to appeal to the Supreme Court of Canada refused February 3, 1994, 68 O.A.C. 399.
20I am satisfied that no erosion occurred here. The trial judge instructed the jury on the meaning of reasonable doubt in terms which are not subject to any objection. Furthermore, and immediately after referring to the accused's interest in the result, the trial judge stressed that there was no onus on the accused and repeated the presumption of innocence. He also immediately told the jury how the burden of proof should be applied in considering the evidence of the accused and then repeated that instruction.
21Considered in the context of the entire charge, I am satisfied that the jury would not have taken the trial judge's reference to the accused's obvious interest in the outcome of the trial as somehow diminishing the Crown's burden of proof or supplanting the presumption of innocence.
4. The trial judge's ruling with respect to the admissibility of the appellant's criminal record.
22Before the appellant testified, his counsel brought a motion to exclude evidence of the appellant's criminal record. The appellant had a lengthy criminal record beginning in 1968 and extending through to 1988. His record included many crimes of dishonesty, two convictions for driving while disqualified and two convictions for carrying a concealed weapon. Apart from the convictions for driving while disqualified, the appellant had never received a jail sentence.
23The trial judge ruled that the appellant's convictions for crimes of dishonesty were admissible, but that his convictions for driving while disqualified and carrying a concealed weapon would not be admitted. The trial judge also ruled that defence counsel could ask the appellant during examination-in-chief whether he had a criminal record, but could not bring out the specifics of that criminal record. The trial judge accepted the Crown's argument that as only an edited version of the criminal record was admissible, it should fall to the Crown to decide whether the jury should hear the particulars of that criminal record. In making this ruling, the trial judge appears to have followed rulings made by other trial judges in his district.
24Faced with the trial judge's ruling, defence counsel elected not to ask his client whether he had a criminal record. Counsel was concerned that if he asked the question and the Crown chose not to go into the particulars of that criminal record, the jury would be left to wonder about the exact nature of the record. Crown counsel did cross-examine the appellant on the particulars of his criminal record.
25Defence counsel then sought to re-examine the appellant to elicit the penalties imposed on the various convictions for the crimes of dishonesty. Counsel wanted to lead this evidence because, in his view, the penalties imposed supported the inference that the offences were relatively minor. The trial judge would not permit counsel to ask about the sentences imposed for the convictions.
26On appeal, counsel makes three arguments. He submits that the trial judge should have excluded the entire record. He further contends that if the trial judge correctly ruled that the crimes of dishonesty were admissible, he should have allowed defence counsel to adduce the particulars of those convictions during examination-in-chief. Lastly, he submits that he was entitled to elicit the penalties imposed on the various convictions.
27There is no merit to the argument that the trial judge should have excluded all of the appellant's criminal record. A trial judge should exclude evidence of an accused's prior convictions only where the probative value of that evidence in assessing the accused's credibility is outweighed by the prejudicial effect of the evidence such that the admission of the evidence would undermine the fairness of the trial: R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, 41 C.C.C. (3d) 385 at p. 400. The balancing process described in R. v. Corbett, supra, is first and foremost a function for the trial judge. Appellate courts must show deference to determinations by trial judges as to whether all, some or none of an accused's criminal record will be admitted if the accused testifies.
28The trial judge admitted evidence of prior convictions involving dishonesty. Those convictions have direct relevance to the accused's credibility as a witness. While it is true that those convictions predated the offence by at least some seven years, the number of those convictions and the long time span over which they occurred, gave them sufficient potential probative value on the issue of the appellant's credibility to fully justify the trial judge's ruling.
29I do agree with the submission that the trial judge should have allowed defence counsel to introduce the particulars of the convictions that were ruled admissible during examination-in-chief. The trial judge's ruling that parts of the criminal record would not be admitted did not put the Crown at any disadvantage such that the trial judge was entitled to counter that apprehended disadvantage by limiting defence counsel's examination-in-chief. The ruling simply excluded evidence that did not have sufficient probative value to warrant its admissibility. Once the trial judge ruled that certain convictions were sufficiently probative to warrant their admissibility, it was up to counsel to decide whether to elicit that evidence during examination-in-chief. Many think that there are tactical advantages in doing so: R. v. Stewart (1991), 62 C.C.C. (3d) 289 at p. 316, 43 O.A.C. 109 (C.A.).
30At trial, Crown counsel argued that by "editing" the criminal record, the trial judge put the Crown at a disadvantage requiring that he allow the Crown to decide whether the particulars of the record should be disclosed to the jury. That argument rests on the claim that if the jury heard the particulars of the "edited" criminal record, it could conclude that while the appellant was prone to commit crimes, he was not prone to commit crimes of violence. In short, the jury might decide that the appellant was a fraudsman but not a murderer. Crown counsel at trial argued that given this risk it was appropriate that the trial judge leave it up to the Crown to decide whether the particulars of the criminal record should go before the jury. On appeal, Crown counsel did not advance this argument.
31I cannot accept the argument advanced at trial. It rests on the assumption that the jury would apply propensity reasoning, albeit propensity reasoning favouring the accused, when considering the evidence of the accused's criminal record. A criminal record is admitted because it is assumed that juries will follow the instruction given by the trial judge and use the record only in assessing credibility and not for any other purpose. The argument advanced by the Crown at trial assumes that the jury will misuse the evidence. [See Note 2 at end of document]
32The trial judge's ruling, combined with Crown counsel's refusal to indicate before examination-in-chief whether he would bring out the particulars of the conviction in cross- examination, put defence counsel in a difficult position. No valid purpose was served by imposing this limitation on counsel's examination-in-chief. Once some of the convictions were ruled admissible, they were admissible at the instance of either the Crown or the defence: R. v. St. Pierre (1974), 1974 874 (ON CA), 3 O.R. (2d) 642, 17 C.C.C. (2d) 489 (C.A.).
33The trial judge's ruling that counsel could not elicit the sentences imposed on the convictions is contrary to the decision of this court in R. v. Boyce (1975), 1975 569 (ON CA), 7 O.R. (2d) 561 at p. 581, 23 C.C.C. (2d) 16 at p. 37 (C.A.) where Martin J.A. held that the word "conviction" in s. 12 of the Canada Evidence Act included the adjudication of guilt and the sentence imposed for the prior conviction. In so holding, he said at p. 581 O.R., pp. 36-37 C.C.C.:
Moreover, it might well be in the interest of the accused, as I think it was in this case, to inform the tribunal of fact, of the penalty imposed. In the present case, two of the three convictions proved against the appellant resulted in fines. If the nature of the penalty had not been disclosed, the jury might have assumed that the convictions were more serious than they appear to have been.
34It remains to consider the effect of those two errors outlined above. I do not think they prejudiced the appellant. The trial judge gave a clear, correct and strong instruction to the jury as to the limited use of the evidence of the appellant's criminal record both when the evidence was adduced and in his final instructions to the jury. There is no danger that the jury would have misused the evidence.
35Counsel for the appellant, in his closing address, skilfully turned the ruling by the trial judge that he could not adduce the criminal record during examination-in-chief to his client's advantage. He pointed out to the jury that the accused had willingly taken the witness stand to tell his story knowing full well that he would be faced with his criminal record in cross-examination by Crown counsel. Counsel for the appellant used his client's willingness to testify, although knowing that by testifying he could expose his criminal record on cross-examination, to lend some credence to his client's evidence.
36I am also satisfied that the refusal to allow counsel to lead evidence of the penalties imposed for the various convictions for crimes of dishonesty did not have any prejudicial effect. Evidence of the penalties imposed would not have materially diminished the potential significance of the appellant's criminal record to the assessment of his credibility. That record had potential significance because of the number of prior convictions and the long period of time over which those convictions were entered. Evidence that the appellant repeatedly received relatively minor penalties for his many crimes of dishonesty committed over many years would not have helped the appellant.
37Finally, this was far from a case where the credibility of the accused was matched against the credibility of other witnesses. Instead, this was a case where the accused's bald assertion that he did not murder Mr. Blake stood against a torrent of circumstantial evidence indicating that he did.
5. Did the trial judge err in giving to the jury a written copy of part of his final instructions?
38After the evidence was complete and before counsel addressed the jury, the trial judge convened a pre-charge conference. He told counsel that his instructions would consist of three parts. The first part would deal with general matters such as reasonable doubt. The jury had received instructions on these matters at the outset of the trial. The second part of the instruction would address the law specifically applicable to the allegations against the accused. The third part of the charge would deal with "administrative matters" such as the selection of a foreperson and the procedure to be followed if the jury had questions during its deliberations. The trial judge described part two of his instructions as "the guts of what the case is about . . ." and told counsel that he contemplated giving a typed copy of part two of his instructions to each of the jurors for their use during deliberations. He provided counsel with a draft of part two of his instructions and invited their comments.
39Crown counsel did not suggest that the jury should not receive a written version of part two of the instructions. He made submissions with respect to specific parts of the draft provided by the trial judge. Counsel for the appellant took the position that the jury should not be given anything in writing. Alternatively, he submitted that if the jury was to receive any part of the charge in writing, it should receive the entire charge in writing. Counsel also took exception to many of the specific references in the draft provided by the trial judge.
40After counsel had addressed the jury, the trial judge convened a second pre-charge conference. By this time it was clear that he had decided to give the jury a written copy of part two of his instructions. He provided counsel with a second draft of that part of his charge and invited further submissions. The trial judge's second draft reflected many of the submissions that had been made to him by counsel at the first pre-charge conference. Most notably, he had removed all references to the evidence from the document he planned to give to the jury. Counsel for the appellant did not resile from the positions he took at the first pre-charge conference and he raised specific concerns about parts of the second draft.
41The trial judge instructed the jury on the day following the second pre-charge conference. He began by telling the jury that his instructions would fall into three parts. He described each of the three parts in general terms, referring to part two as relating to the matters that were specific to the charges. He told the jury that a written copy of part two would be provided to each juror when the jury began its deliberations.
42When the trial judge reached part two of his instructions, he reminded the jury that they would receive a copy of this part of his instructions to use during their deliberations. The document provided to the jury consists of some 30 typed pages and contained instructions on the following topics:
-- circumstantial evidence;
-- expert evidence;
-- the essential elements of the charges against each accused;
-- the possible verdicts as against each accused;
-- evidence of motive and opportunity; and
-- evidence of a criminal record;
43The written instructions ended with a heading entitled "Conclusion". Under that heading, the trial judge emphasized the presumption of innocence, the burden of proof, the jury's obligation to use its own recollection of the evidence in determining the facts, the circumstantial nature of the Crown's case, and the need to consider the evidence in its totality. [See Note 3 at end of document]
44Although counsel did not submit that it was wrong to give the jury any written material to use in the course of its deliberations, I will comment in general terms on that practice. Traditionally, Canadian juries have received only oral instructions on the law to be applied by them. While providing jurors with written material was not viewed as in and of itself reversible error, it was described as "a dangerous procedure" to be adopted only in "special circumstances": R. v. Wong, 1978 2367 (BC CA), [1978] 4 W.W.R. 468, 41 C.C.C. (2d) 196 at p. 204 (B.C.C.A.). [See Note 4 at end of document]
45More recently, however, many Canadian judges have come to recognize that written material in various forms can assist juries in their difficult task of understanding, remembering and applying legal instructions. [See Note 5 at end of document] In some Canadian jurisdictions, particularly British Columbia, judges now often provide written materials to juries. [See Note 6 at end of document] This practice has been part of the American criminal trial process for many years and in some states is mandated by statute. [See Note 7 at end of document]
46Judges must explain a variety of legal principles to a jury. Some of these principles are complex, particularly where there are multiple accused, different theories of liability and various defences advanced at trial. Complex instructions will sometimes be lengthy. Any judge who has tried to instruct a jury in a complex criminal case knows how difficult that task can be. Surely, it can be no less difficult for 12 lay people to understand, recall and apply those instructions. Juries need whatever help judges can give them. For many years, educators have accepted as self-evident the proposition that appropriate written material enhances the comprehension of oral instruction. Social science research suggests that this proposition has application to jury instructions. [See Note 8 at end of document]
47The time has come to embrace the use of written material to enhance juror comprehension of oral instructions, particularly where those instructions must be lengthy and complex. There is no legal impediment to the use of written material as an adjunct to oral instructions. While the Criminal Code, R.S.C. 1985, c. C-46 contemplates that trial judges will give closing instructions to the jury (s. 650.1), it says nothing about how those instructions should be given. In R. v. Ménard (1996), 1996 685 (ON CA), 29 O.R. (3d) 772, 108 C.C.C. (3d) 424 at p. 431 (C.A.), affd 1998 790 (SCC), [1998] 2 S.C.R. 109, 125 C.C.C. (3d) 416, Arbour J.A., in this court, accepted that judges could develop new instruction techniques to assist juror comprehension. Major J., for the Supreme Court of Canada, agreed with Arbour J.A., stating at pp. 124-25 S.C.R., p. 430 C.C.C.:
Trial judges should not be discouraged from taking new approaches in an effort to make their instructions more accessible to the jury. What is crucial is that at the conclusion of the charge the members of the jury understand the nature of their task and have the necessary help from the instructions to carry it out.
48R. v. Ménard, supra, does, however, make the point that care must be taken as to the content of any written material given to the jury, its format and the manner in which that material is presented to the jury. If a jury is given written material to assist in recalling and applying the oral instructions, it is only sensible to assume that that written material will be relied on by the jury during its deliberations. Any inaccuracy or inadequacy in the written material, or any confusion or unfairness created by that material is likely to have a serious impact on the validity of any verdict returned by the jury. The high premium placed on ensuring that written material is accurate and fair should not discourage the use of written material but, should encourage careful preparation of any written material that is to be given to the jury.
49The procedure followed by this trial judge provides valuable guidance to judges who are disposed to provide written material to a jury. He vetted the material with counsel on two occasions and made several changes to the material in response to counsel's submissions. The trial judge alerted the jury to the fact that they would receive written instructions. The document he gave to the jury was very "reader friendly". It was well spaced, made extensive use of headings, used straightforward, plain language and simple, declarative sentences. It also presented a balanced and accurate statement of the applicable legal principles. [See Note 9 at end of document] The trial judge obviously worked hard on the written material he gave to the jury. Counsel's detailed submissions enhanced the quality of that material. I have no doubt that this material provided valuable assistance to the jury when it came to apply the relevant legal principles to the evidence it had heard.
50Counsel for the appellant had two specific objections to the written material. Both rely on R. v. Ménard, supra, where Major J. said at p. 125 S.C.R., p. 431 C.C.C.:
Any trial judge adopting such an approach must take care to ensure that the entire charge is provided to the jury in a clear and legible form, and that all members of the jury are capable of reading the materials.
51The trial judge did not specifically ask the jurors whether they could read the written material he was providing to them. It would have been better had he done so and had he told the jurors that if they had any uncertainty as to the meaning of any part of the written material, they should seek clarification from him. The trial judge did, however, tell the jury in general terms that he was available to answer questions if any part of his instructions was unclear. Presumably, the jury would have understood that this included the written instructions which were identical to part of the oral instructions. The jury did not seek clarification of the trial judge's instructions during their lengthy deliberations. The absence of any requests for clarification satisfies me that the members of the jury were capable of reading and understanding the written material provided to them.
52Counsel's second submission emanates from Major J.'s statement that "the entire charge" should be given to the jury. Counsel reads this passage literally and submits that every word of the charge to the jury must be given to the jury in writing if any part of the charge is to be given to the jury in writing.
53I do not think that Major J. meant to impose an all or nothing limit on the use of written material that refers to instructions given in the judge's charge. R. v. Cathro (1955), 1955 451 (BC CA), 112 C.C.C. 154, 22 C.R. 77 (B.C.C.A.), revd 1955 46 (SCC), [1956] S.C.R. 101, 2 D.L.R. (2d) 270, the authority relied on by him, does not hold that it is error to provide the jury with a transcript of only part of a trial judge's instructions. In that case, the trial judge, in response to a jury's question, gave the jury a transcript of part of his earlier instructions concerning the applicable legal principles. The transcript did not contain all of the instructions he had given on those matters. The majority of the British Columbia Court of Appeal upheld the conviction. Davey J.A., in dissent, held that the trial judge had erred in providing the jury with a transcript of part of his instructions. He said at p. 179 C.C.C.:
While, in my respectful opinion, it was unwise to allow the jury to have in writing excerpts from the charge out of their context I would not be disposed to interfere with the verdict if the excerpt in this case had only contained an exposition of the law without reference to the Crown's case or if it had also contained that portion of the charge relating to the defence. But allowing the jurors to take into their deliberations the Crown's case in the form of the printed word while leaving the case for the defence to the jury's memory had the unhappy but unintended result of pushing the defence into obscurity.
54In the Supreme Court of Canada, the conviction was quashed and a new trial ordered. Estey J., for the majority at p. 114 S.C.R., after deciding the appeal on another ground, indicated his agreement with the dissent of Davey J.A. as it related to the giving to the jury of a transcript of part of the trial judge's charge. Estey J. outlined the circumstances in which the jury came to receive the transcript and observed that the transcript did not include all of the instruction on the legal principles referred to in the oral instructions given to the jury. He went on to say at pp. 114-15 S.C.R.:
It is well established that a charge must be considered as a whole. With this in mind, it seems impossible to conclude otherwise than that the jury, in the course of their deliberations, would inevitably give more weight to the portion transcribed than to that part which they had heard but verbally expressed in the courtroom. Moreover, in this particular case there was that portion which counsel for the defence had discussed at the end of the learned trial judge's charge and upon which the learned judge made further comment, which he repeated to the jury as he handed them the typewritten portion. It would, therefore, seem, as a matter of principle, that a part of a charge should not be handed to the jury.
(Emphasis added)
55Read in the context of what happened in that case, I take Estey J. to mean that if a jury is to receive a transcript of the instructions on the applicable legal principles, that transcript must include all of the instructions referable to those principles and not just part of the instructions.
56In any event, Estey J., did not suggest that it was reversible error to provide the jury with a transcript of only part of the entire instructions given to the jury. Like Davey J.A., Estey J. looked to the effect of what was actually given to the jury on the fairness of the trial. He concluded at p. 115 S.C.R.:
Where, however, as here, the transcribed part of the charge contains important references to the evidence and contentions made on behalf of the Crown, and but slight reference to the evidence and none to the contentions on behalf of the defence, there can be no doubt but that the giving of such a portion to the jury ought not to be permitted.
57It is consistent with R. v. Cathro, supra, to read the reference by Major J. in R. v. Menard, supra, to the "entire charge" as meaning all of the instructions on the topic or topics to which the written material is directed. For example, if a judge decides to give a jury a written copy of his instructions relating to the applicable legal principles, that written material should contain all of the instructions referable to those principles. This requirement guards against two dangers. Juries may be misled by written instructions which tell them only part of what they have to know, and incomplete written instructions may be skewed in favour of one side or the other.
58If a trial judge decides to give a jury a written copy of part of his instructions, he or she should clearly identify the topics to be addressed in the written material and ensure that the written material contains a complete and balanced instruction on those topics. As long as the jury understands that the written material relates to a specific part of the instruction and that it is to be considered along with the rest of the instructions, I do not think there is any danger that a jury will be misled simply because they were not provided with a written copy of every word in the trial judge's charge to the jury.
59I see some advantages in being selective about the written material to be given to a jury. Some parts of a judge's instructions will be readily understood by the jury as reasonable, intelligent laypersons. There will, however, be other matters that will be difficult for the jury to understand, recall and apply during their deliberations. The applicable legal principles may well be the most difficult part of the instructions for lay jurors to understand. If the aim of written material is to assist the jury in arriving at a true verdict by improving its comprehension, recall and application of the oral instructions, that aim is best served by targeting for written reproduction those parts of the instructions which will prove difficult for the jury. Giving the jury a written copy of all of the instructions could bury the part of the instructions to which the jury needs to refer in a mass of material that it has no need to make reference to in its deliberations. Selective resort to written material to assist a jury during its deliberations could enhance the educational value of that material. However, in a case where the trial judge provides the jury with a written copy of the applicable legal principles care must be taken to ensure that the written material contains all the instructions referable to those principles including, as discussed subsequently, instructions on the presumption of innocence and reasonable doubt.
60In this case, the trial judge told the jury it would receive a written copy of his instructions relating to the legal matters that were specific to the charges before the jury. The topics addressed in the written material were consistent with that description and with one caveat constituted the "entire charge" on those topics. Nothing said by the trial judge in the rest of his charge qualified or amplified anything contained in the written instructions.
61The one caveat relates to the instructions on the presumption of innocence and reasonable doubt. The trial judge instructed the jury on these issues at the start of the trial and in the first part of his instructions. His instructions on these topics were not included in the written material provided to the jury. Instructions on the presumption of innocence and reasonable doubt are instructions on legal matters specific to the charges. They are indeed the fundamental principles to be applied. I think the instructions on the presumption of innocence and reasonable doubt should have been included in the written material. The absence of the instruction on the meaning of reasonable doubt is perhaps the most significant omission from the written material.
62The merit of including the reasonable doubt instruction is perhaps demonstrated by the sole question asked by the jury during its lengthy deliberations. It asked the trial judge to repeat the definition of reasonable doubt he had given to them in his instructions. Had that definition been included in the written material, presumably the jury would not have needed further instruction.
63Although I think the trial judge should have included instructions on the presumption of innocence and reasonable doubt in the written material given to the jury, I am satisfied that his failure to do so did not prejudice the appellant. The oral instructions on the presumption of innocence and reasonable doubt were not challenged on appeal. The written material provided a strong reminder of the importance of those principles. Finally, as the jury's question demonstrates, it appreciated the significance of the reasonable doubt instruction and knew how to access that instruction if the need arose in the course of its deliberations.
64I would dismiss the appeal.
Appeal dismissed.
Notes
Note 1: Ms. Neslon has not appealed.
Note 2: If the Crown seriously fears that the jury will draw an inference of non-violence from the 'edited" criminal record, its remedy is to invite the trial judge to exclude the entire criminal record.
Note 3: In the course of his oral delivery of part two of his instructions, the trial judge did relate the evidence to the various legal issues. His references to the evidence were not, however, included in the written material he gave to the jury.
Note 4: In 1980, the Law Reform Commission of Canada reported that only 6 per cent of the judges who responded to a questionnaire indicated that they ever gave anything in writing to a jury. The Commission split on whether judges should be allowed to give a copy of their legal instructions to the jury for their own use during deliberations. The Jury in Criminal Trials (Working Paper 27)(Ottawa: Law Reform Commission of Canada, 1980) at pp. 95-98.
Note 5: Nathanson"Strengthening the Criminal Jury Trial: Long Overdue" (1996), 38 Crim L.Q. 517; Bouck"Criminal Jury Trials: Pattern Instructions and Rules of Procedure" (1993), 72 Can. Bar Rev. 129; Watt"The Education of Criminal Jurors: Plain Talk and Jury Aids" (1998), Proceedings of the Ontario Court (General Division) Spring Education Seminar, National Judicial Institute.
In 1997, a conference of some 51 federally appointed judges recommended that trial judges should provide the jury with a written copy of their charge: see National Judicial Institute"Report on the Jury Instructions Symposium", Criminal Jury Trials (Toronto: March, 1997), at p. 28.
Note 6: E.g. see R. v. Ramos-Paz (1998), 1998 7053 (BC CA), 118 B.C.A.C. 309, 192 W.A.C. 309 (C.A.); R. v. Allen (1999), 1999 BCCA 117, 122 B.C.A.C. 286, 200 W.A.C. 286 (C.A.); R. v. McKenna (2001), 2001 BCCA 2, 151 C.C.C. (3d) 63 (B.C.C.A.); Ferguson and Bouck, Canadian Criminal Jury Instructions, 3rd ed. (Vancouver: Continuing Legal Education Society of British Columbia, 1994-), vol. 1, para 4.00.
Note 7: Many of the American authorities are gathered in "Annotation, Propriety and Prejudicial Effect of Sending Written Jury Instructions with Retiring Jury in Criminal Case", 91 A.L.R. 3d 382. There is strong support for the practice. See Schwarzer"Reforming Jury Trials" (1991), 132 F.R.D. 575 at pp. 584-85.
Note 8: Lieberman and Sales"What Social Science Teaches Us About the Jury Instruction Process" (1997), 3 Psychology, Public Policy, and Law 589 at p. 626; Sand and Reiss"A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit" (1985), 60 N.Y.U. Law Rev. 427; Dann"Learning Lessons and Speaking Rights: Creating Educated and Democratic Juries (1993), 68 Ind. L.J. 1229 at p. 1259.
Note 9: The written material did refer to the appellant's interest in the outcome. Counsel argued that this reference amounted to legal error. For the reasons set out in paras. 20 and 21, I have rejected that argument.
