R. v. Clark, 2004 CanLII 12038 (ON CA)

Her Majesty the Queen v. Clark [Indexed as: R. v. Clark]

69 O.R. (3d) 321

[2004] O.J. No. 195

Docket No. C32246

Court of Appeal for Ontario

O'Connor A.C.J.O., Catzman and Moldaver JJ.A.

January 26, 2004

Application for leave to appeal to the Supreme Court of Canada was dismissed April 6, 2006 (LeBel, Fish and Abella).

Criminal law -- Evidence -- Demeanour of accused -- Accused's girlfriend asking him to look her in eye and tell her whether he committed murder -- Accused denying involvement in murder but not looking her in eye although he customarily did so -- Trial judge did not err in admitting girlfriend's evidence as not within category of demeanour evidence previously disapproved, namely evidence of equivocal conduct or conduct inconsistent with supposed societal norms given by person without special relationship with accused -- Deviation from accused's usual conduct and his failure to comply with girlfriend's request gave evidence sufficient probative value to justify its admission.

Criminal law -- Evidence -- Expert evidence -- Crown calling expert witness to testify that crime scene was staged -- Expert evidence as to staging and as to how murder was probably committed being admissible -- Expert evidence that murderer likely had some relationship with victims and had knowledge of layout of their apartment constituting inadmissible criminal profiling evidence -- Criminal profiling evidence regarding likely characteristics of offender not affecting outcome of trial given overwhelming evidence against accused -- Curative proviso applied -- Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii).

Criminal law -- Trial -- Conduct of Crown -- Crown counsel's cross-examination of accused not inflammatory -- Fact that cross-examination portrayed accused in bad light not making it offensive -- Trial judge intervening quickly on odd occasion when cross-examination crossed line -- Neither cross- examination nor closing address of Crown counsel warranting sanction of appellate court, let alone entitling accused to new trial.

Criminal law -- Evidence -- State of mind of deceased -- Elderly deceased couple lived across hall from accused's grandmother with whom he lived -- Deceased's daughter testified that her father told her shortly before murder that he neither liked nor trusted accused -- Evidence of deceased's state of mind properly admitted to rebut accused's assertion that he was on good terms with deceased and that his statement that he frequently visited their apartment for innocent reasons -- Jury given proper limiting instructions regarding use of evidence.

The accused was convicted of two counts of first degree murder. The elderly victims were stabbed in their sleep and their apartment was ransacked. The police believed that the forced entry into the apartment and the ransacking were staged. The 22-year-old accused lived with his grandmother across the hall from the victims. The victims and the accused's grandmother were close friends. In the weeks leading up to the murders, the accused had purchased items with a credit card that he had stolen from the victims. The accused knew that he was captured on videotape when he used the stolen credit card to buy an engagement ring for his girlfriend. If his use of the card came to light, the victims might take proceedings against him, his grandmother might throw him out and his girlfriend might abandon him. It was the theory of the Crown that [page322] the accused thus had a motive to silence the victims. The accused was shown to have had the opportunity to commit the murders. A pair of bloodstained track pants was found in the accused's grandmother's apartment. When analyzed, the blood turned out to be that of the male victim. According to an undercover officer who was placed in the accused's cell after his arrest, the accused stated that he found it difficult to understand how detectable traces of blood had remained on the pants as he had washed them thoroughly. In the same conversation, the accused stated that he had stabbed the victims through the heart. At trial, the accused testified in his own defence. He tried to pin the murder on another man, M, who had committed suicide. He claimed to have had a good relationship with the victims, which both explained the presence of his fingerprints in their apartment and made it less likely that he would have killed them. Over the objections of defence counsel, the Crown was permitted to call the evidence of the victims' daughter, who testified that shortly before the murders, her father had stated that he did not like or trust the accused. The trial judge also permitted the Crown to lead evidence that the accused had disposed of a gym bag while shopping with his girlfriend the day after the murder. It was the theory of the Crown that the person who killed the victims carried a change of clothing in a rectangular gym bag and changed his clothes after committing the murder. The trial judge permitted the girlfriend to testify that shortly after the murders she had asked the accused to look her in the eye and tell her whether he had committed the murders, and he had replied "No, I did not" but had not looked at her while responding. Finally, the trial judge permitted the Crown to adduce expert crime scene reconstruction evidence through a senior police officer, who testified that the crime scene had been staged to make it appear that a burglary had occurred. The officer also gave evidence as to how she thought the crime had been committed, and testified that the perpetrator was someone who had some knowledge or relationship with the victims and some knowledge of the layout of their apartment. The accused appealed his conviction.

Held, the appeal should be dismissed.

The trial judge did not err in admitting evidence going to the male victim's state of mind. The impugned evidence bore directly on the accused's credibility, both in terms of his asserted "good relationship" with the victims and the frequency of his visits to their apartment for "innocent reasons". The trial judge directed the jury on the limited purpose for which the statement could be used and warned the jury about its misuse.

The evidence pertaining to the use and disposal of the gym bag was properly admitted. While the evidence linking the gym bag to the murders was not overwhelming, when considered as a whole, there was a sufficient body of evidence from which the jury could reasonably infer that the accused used the bag to facilitate the murders in the manner suggested by the Crown and that he discarded it because it contained evidence linking him to the crimes.

The evidence of the accused's demeanour in response to his girlfriend's question about whether he committed the murders was properly admitted. While reliance on demeanour evidence may be dangerous in many cases, in this case the girlfriend had a special relationship with the accused, knew him well enough to know that he always looked at her when he spoke to her, and specifically asked him to look her in the eye. In these circumstances, his failure to follow his normal custom or to comply with her request gave the evidence the added degree of probity needed to justify its reception. If the jury accepted the girlfriend's evidence, they could have used the accused's reaction as after-the-fact conduct of guilt. [page323]

A properly qualified expert in crime scene analysis can offer opinion evidence about what occurred at the crime scene and how the crime was committed ("crime scene reconstruction evidence"). Crime scene reconstruction evidence is potentially admissible. Its ultimate acceptance or rejection will depend on whether it conforms with the rules that govern the admissibility of expert evidence in general. In respect of crime scene reconstruction evidence, the following three areas will generally require close attention: whether the evidence is necessary in the sense that it is likely to fall outside the knowledge or normal experience of the average juror; whether the opinion is reliable in the sense that it is anchored in the evidence and not the product of guesswork or speculation; and whether there is a real danger that the jury will be overwhelmed by the evidence and give it more weight than it deserves. Crime scene reconstruction evidence is to be contrasted with expert evidence offered to explain why the crime was committed in a particular manner (the perpetrator's motivation) and more particularly, who is more likely to have committed the crime ("criminal profiling evidence"). Criminal profiling evidence will generally be inadmissible, as criminal profiling is a novel field of scientific evidence and often appears to be based on nothing more than educated guesses. In this case, the police officer's evidence that the crime scene was staged was properly admitted, as was her evidence as to how the crime was committed. She was qualified to express an opinion about staging, and her evidence fell outside the knowledge and experience of the average juror. Her opinion was reliable in the sense that it was anchored in the evidence and not the product of guesswork or speculation, and the evidence of staging was not so complex or technical that the jury was likely to be overwhelmed by it and give it more weight than it deserved. The officer's testimony as to how the crime was committed was necessary as the average jury could not have drawn the inferences and made the connections that the officer was able to make by virtue of her expertise and training in crime scene analysis, and the officer's opinions were reliable as they were anchored in the evidence and were not the product of guesswork or speculation. The jury would not have been overwhelmed by the officer's testimony to the point of giving it more weight than it deserved. Her opinion evidence was not overly complex or technical and was not resistant to cross- examination. The trial judge instructed the jury that expert evidence, like any other evidence, can be subject to frailties, that it was for them to decide how much weight to give to that evidence, and that they should assess it with care and not be overwhelmed by it. While the officer's testimony may have been significant, it was not dispositive of the ultimate issue. The crime scene reconstruction evidence was properly admitted.

The officer's evidence that the murderer had some knowledge or relationship with the victims and that he or she was familiar with the layout of their apartment constituted criminal profiling evidence and was inadmissible.

The erroneous admission of the small amount of criminal profiling evidence could not have affected the outcome of the trial. This was an appropriate case for the application of the curative proviso. The evidence against the accused was overwhelming and his assertion that M was the killer was preposterous.

The cross-examination of the accused by Crown counsel at trial was not inflammatory or improper. For the most part, it was fair and relevant. On the odd occasion that it crossed the line, the trial judge quickly intervened and put a halt to it. The fact that the cross-examination portrayed the accused in a bad light did not make it offensive. The Crown was entitled to establish that the accused had a powerful motive to kill the victims. This meant leading evidence of the accused's fraudulent use of the victims' credit card and other behaviour on his part that showed him to be crass, self-centred, greedy and cunning. To the extent that the evidence portrayed the accused in a bad light, the trial judge took pains to ensure [page324] that the jury understood how the evidence could and could not be used. Crown counsel's closing address was not unfair or inflammatory. On the one occasion that Crown counsel did inadvertently overstep the mark, the trial judge intervened quickly and took corrective steps to remove any potential prejudice.

APPEAL by the accused from a conviction for first degree murder.

R. v. Ranger (2003), 2003 32900 (ON CA), 67 O.R. (3d) 1, 178 C.C.C. (3d) 375, 14 C.R. (6th) 324, [2003] O.J. No. 3479 (QL), 176 O.A.C. 226 (C.A.), apld Other cases referred to R. v. Baltrusaitis (2002), 2002 36440 (ON CA), 58 O.R. (3d) 161, 162 C.C.C. (3d) 539 (C.A.); R. v. Levert (2001), 2001 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.)

John M. Rosen and C. Anik Morrow, for appellant. Milan Rupic, for respondent.

The judgement of the court was delivered by

[1]

Introduction

MOLDAVER J.A.: -- On December 3, 1998, after an 11-week trial before the Honourable Justice Peter Howden and a jury, the appellant was convicted of two counts of first-degree murder. He appeals against his convictions and seeks a new trial.

2The grounds of appeal raised by the appellant can be conveniently divided into two categories, one relating to evidentiary issues, the other to alleged improprieties by Crown counsel in her cross-examination of the appellant and in her closing address to the jury.

3Under the first category, the appellant has raised four issues, three of which I would characterize as minor. The minor matters involve the admissibility of evidence going to the state of mind of the deceased Mr. Tweed, evidence relating to the use and disposal of a blue gym bag belonging to the appellant, and evidence of the appellant's demeanour when questioned by his girlfriend about the murders. The appellant's chief complaint relates to the expert testimony given by Detective Inspector Kathryn Lines of the Ontario Provincial Police. In particular, he submits that her evidence should have been excluded because it was both unnecessary and unreliable and its prejudicial effect outweighed its probative value. Alternatively, he submits that a significant portion of her testimony constituted improper "criminal profiling" evidence and as such, it should have been excluded in accordance with this court's decision in R. v. Ranger (2003), 2003 32900 (ON CA), 67 O.R. (3d) 1, 176 O.A.C. 226 (C.A.).

4Under the second category, the appellant takes issue with the manner in which Crown counsel cross-examined him and with her closing remarks to the jury. Specifically, he submits that [page325] the cross-examination was inflammatory in that it was designed to demean and humiliate him and portray him as a person of bad character. The appellant further submits that Crown counsel compounded the problem in her closing remarks by inviting the jury to use the evidence elicited in her improper cross-examination to find the appellant guilty as charged.

5For reasons that follow, I would not give effect to any of the minor evidentiary issues raised by the appellant. As for his chief complaint, I am satisfied that the expert testimony given by Detective Inspector Lines was largely admissible and properly received. To the limited extent that it was not, I would apply the curative proviso and sustain the convictions. As for the allegations of impropriety against the Crown, I am satisfied that Crown counsel conducted herself properly throughout and that the appellant's allegations against her are either overstated or unfounded. Accordingly, I would dismiss the appeal.

6Before addressing the various issues raised, I propose to provide an overview of the case for the Crown and the case for the defence. Thereafter, additional detail will be provided as necessary to flesh out a particular ground of appeal.

Overview of the Case for the Crown

[7]

Overview of the Case for the Crown

At around noon-hour on December 26, 1995, William Tweed (age 86) and his wife Phyllis (age 81) were found stabbed to death in the bedroom of their first-floor apartment at 60 Inverlochy Boulevard, Thornhill, Ontario. Investigation of the crime scene and surrounding area led the police to conclude that the Tweeds had been murdered on the morning of the 26th between 4:30 a.m. and 5:45 a.m. as they lay sound asleep in bed. Efforts to make it appear as though entry into the apartment had been forced and the apartment burglarized were determined to be the product of staging. In other words, this was not a burglary gone wrong. Either the Tweeds were the unfortunate victims of random violence or whoever killed them wanted to silence them.

8Random violence aside, the only person who had a reason for wanting to silence the Tweeds was the appellant. In the several weeks leading up to their deaths, the appellant had been purchasing items with a credit card that he had stolen from the Tweeds. One such item, purchased on December 19, was a $2,000 engagement ring that he planned to present to his girlfriend, Shelley Rothauser. To the appellant's knowledge, he was captured on videotape when he made that purchase and it was only a matter of time before he "expected" to be caught. Once that occurred, the consequences for him were potentially disastrous. [page326]

9Aside from any proceedings the Tweeds might initiate, the appellant was sure to incur the wrath of his grandmother, Ruby Hutton. Ms. Hutton, age 78, lived across the hall from the Tweeds and over the years, she and the Tweeds had become close friends. In the two and a half years preceding their deaths, Ms. Hutton had taken the appellant in and allowed him to live with her rent-free. At age 22, with no money, no education to speak of and no job to support himself, being evicted by his grandmother was something the appellant did not need.

10Even more problematic was the impact detection was likely to have on his relationship with his girlfriend, Shelley, especially if her parents were to find out. As it is, Shelley's parents disliked the appellant intensely and they encouraged Shelley to break off her relationship with him. Much as the appellant hoped that their hostile attitude would change in time, he knew that this was not likely to happen if they were to learn of his criminal activity.

11Shelley too would have been annoyed. In early December, the appellant had told her of his use of the Tweeds' credit card to purchase theatre tickets. Shelley was very upset and insisted that he return the card. After that, the appellant made no further mention of the card and Shelley assumed that he had complied with her request. Little did she know of his duplicity.

12On any view of the evidence, the appellant's relationship with Shelley was of singular importance to him. The prospect of losing her was something he was not prepared to accept. Perhaps more than anything else, it provided him with a powerful motive to silence the Tweeds.

13In addition to motive, the Crown relied on evidence of opportunity to prove its case. Although not conceded, the appellant does not seriously dispute the fact that the Tweeds were murdered on the morning of December 26 between 4:30 a.m. and 5:45 a.m. It snowed heavily on the night of December 25 and on the morning of the 26th, at about 4:30 a.m., a security guard patrolling the apartment grounds noticed no disturbances in the snow next to the Tweeds' patio. At 5:45 a.m., a contractor arrived and began snow-ploughing the building parking lot. He completed his task by 7:30 a.m. While he was ploughing, he saw no one cross the parking lot. The police detected a set of footsteps leading from the Tweeds' patio to the edge of the ploughed parking lot. On the combined evidence of the security guard and the contractor, those footsteps could only have been made between 4:30 a.m. and 5:45 a.m. Hence, the Tweeds must have been murdered within that timeframe.

14By his own admission, the appellant had the opportunity to enter the Tweeds' apartment on the morning of the 26th [page327] between 4:30 a.m. and 5:45 a.m. and he had the wherewithal to do so without having to use force. On the latter point, the appellant acknowledged having access to a duplicate key to the Tweeds' apartment that the Tweeds had entrusted to his grandmother in case of emergency. On the former, the appellant confirmed that after spending the night of December 25 with Shelley and some friends, he returned to his grandmother's apartment on the morning of the 26th at about 2:45 a.m. He was met by his grandmother who had waited up for him. After a brief conversation, they both went to bed. According to the appellant, he remained in bed until about 11:00 a.m. when he awoke to the sound of his grandmother taking a shower. Thus, between 4:30 a.m. and 5:45 a.m., he clearly had the opportunity to leave his apartment and enter the Tweeds' apartment.

15The strength of the circumstantial case implicating the appellant as the killer increased dramatically following his arrest on January 10, 1996. It was then that the police discovered a pair of bloodstained track pants in Ruby Hutton's apartment. The pants, which admittedly belonged to the appellant, formed the subject of the following conversation between the police and the appellant several hours after his arrest:

Q. What if I was to tell you that there was blood on those track pants?

A. I don't know how there could be.

Q. You don't know how there could be?

A. They were just washed, this week.

Q. So you don't know how that blood could've got on the track pants?

A. No.

Q. What happens if it's the Tweeds' blood?

A. Well then I guess I have a problem (laughs)

Q. I'll tell you there's blood on them.

A. Obviously I have a problem.

16The appellant's final remark proved prophetic. DNA testing established conclusively that the blood on the pants was that of the deceased, Mr. Tweed.

17Several days later, while in custody, the subject of the track pants arose again, this time in a conversation between the [page328] appellant and Sergeant Ian Matthews, an undercover officer who had been placed in the appellant's cell. According to Sergeant Matthews, the appellant found it difficult to understand how detectable traces of blood had remained on his pants because he had "washed [them] so good" and "blood comes out easy, so it must be minute". In the same conversation, the appellant told the Sergeant that he had stabbed the Tweeds through the heart -- "[i]t was just like sticking a knife in a grapefruit. You know, all the spray, and not one, but two."

18According to Sergeant Matthews, the appellant returned to the subject of the track pants at another point in their conversation. This time, after remarking that "[i]t must be a really small amount of blood they're talking about", he told the Sergeant about a recent visit to his uncle's residence, in which his uncle's black dog "was just licking my legs the whole time I was there. Like I washed, but [he] must still have smelled the blood on my legs."

19In addition to those conversations, the appellant spoke to Sergeant Matthews about his relationship with Shelley and her parents. In particular, he told the Sergeant that Shelley's parents hated him because he was not Jewish and he was not good enough for her. He further stated that it would have been "all over" if her parents had "heard I was charged with credit fraud". As for his feelings towards Shelley, he described her as his "whole world" and stated that he would "do anything for her", including "becom[ing] a Jew just to be with her".

20Motive, opportunity, evidence that the crime scene had been staged and that the Tweeds had been killed in their sleep, blood from the deceased on his track pants and a full confession to Sergeant Matthews -- these were the lynchpins of the Crown's case of first-degree murder against the appellant. Unanswered, they provided powerful proof of his guilt.

Overview of the Case for the Defence

[21]

Overview of the Case for the Defence

The appellant chose to answer the case against him. He testified and denied killing the Tweeds. He admitted to the theft and unlawful use of Mr. Tweed's credit card, but attempted to downplay the consequences of detection. From his perspective, detection would have made things unpleasant for a while, but in the end, everything would have worked out. He would have repaid the Tweeds, his grandmother would not likely have evicted him, Shelley would have forgiven him and in time, her parents would have learned to like him. Accordingly, from his perspective, detection was not a matter of great concern and certainly nothing that would cause him to kill the Tweeds. [page329]

22By the same token, the prospect of being caught was something that he did not particularly relish. Hence, on December 20, 1995, he contacted a little-known acquaintance, known only as Marcel, and he sought Marcel's advice as to how he could deflect attention away from himself as the person responsible for the use of Mr. Tweed's credit card. According to the appellant, after some discussion, Marcel suggested a scheme in which he (Marcel) would use Mr. Tweed's credit card at an automated bank machine monitored by a video camera. Given that Marcel was black and the appellant white, pictures captured on the video would put the police off the appellant's track and cause them to look for a black suspect. To accomplish the scheme, Marcel would need Mr. Tweed's PIN number. The appellant undertook to get it for him.

23In the two and a half years that he had lived with his grandmother, the appellant had performed odd jobs for the Tweeds and he was familiar with the layout of their apartment. In particular, he knew that Mr. Tweed kept his personal papers and bank records in banker boxes stored in the library. Accordingly, he planned to enter the Tweeds' apartment at an appropriate time and search for the PIN number. By December 24 however, he had not been able to find an opportune moment to do so.

24Hence, on December 24, he contacted Marcel again and for a fee of $400, he arranged for Marcel, and perhaps an accomplice, to come to his grandmother's apartment on Christmas day at about 4:00 p.m. He picked that time because he knew that he and his grandmother would be out and the Tweeds would not be home. Marcel was to come to the patio door of his grandmother's apartment (Unit 106) and enter through that door with a key which he would find under the patio mat. Once inside Unit 106, Marcel was to put the patio key back under the mat and then locate an envelope on the humidifier. In it, he would find the duplicate key to the Tweeds' apartment (Unit 107), along with written instructions and a map of Unit 107 prepared by the appellant. Marcel was then to enter Unit 107, follow the map to the library and find Mr. Tweed's PIN number in his personal papers. After doing so, Marcel was to return the duplicate key to his grandmother's apartment and place it on a hook in the kitchen. He was then to return to Unit 107 and leave through the Tweeds' patio door. According to the written instructions, Marcel was to complete his tasks by no later than 6:00 or 7:00 p.m. The appellant picked that time because on Christmas morning, he had overheard the Tweeds telling his grandmother that they "might be [out] late". He interpreted that to mean 9:00 p.m. [page330]

25The appellant testified that when he, Shelley and his grandmother returned home from Christmas dinner at about 8:30 p.m., everything appeared to be in order. The envelope that he had left for Marcel was gone and the duplicate key to the Tweeds' apartment was hanging on its hook. Believing that the plan had succeeded, the appellant left his apartment with Shelley. When he returned home just before 3:00 a.m., he spoke briefly with his grandmother and then retired to bed.

26According to the appellant, he remained asleep until approximately 11:00 a.m. When he awoke, he heard his grandmother taking a shower and he used the opportunity to retrieve the patio key that Marcel had used to gain entry into his grandmother's apartment the day before. When he looked under the patio mat, the key was there, but he noticed that a fob that had been attached to it was missing.

27Fearing that the fob may have come off in the Tweeds' apartment, he looked through the peephole of his apartment door and saw the Tweeds' newspaper lying in the hallway. Taking that as a sign that the Tweeds had not returned home, he retrieved the duplicate key to Unit 107 and opened the door. Upon doing so, he observed that the interior of the apartment had been ransacked. In a state of shock, he entered the apartment and immediately noticed the fob from his key in plain view on the hallway table.

28Curious as to the extent of the ransacking, he entered further into the apartment until he reached the door to the master bedroom. It was then that he saw the body of Mr. Tweed. He approached Mr. Tweed, crouched down and touched him for signs of life. He found none. Although he could not be sure, he assumed that the right knee of his track pants must have come into contact with Mr. Tweed's blood when he crouched down. The appellant then saw Mrs. Tweed but he did not approach her. Instead, he hurried from the apartment and returned to his bedroom where he remained until about 11:30 a.m., when he heard his grandmother voicing concerns about the Tweeds.

29Shortly thereafter, Ruby Hutton entered the Tweeds' apartment and observed the mess. Thinking that the Tweeds had been robbed, she returned to her apartment and called the building superintendent. By now, the appellant had come out of his bedroom. When the building personnel arrived moments later, they observed the appellant and his grandmother in the area of the door to Unit 107. Police and emergency personnel arrived momentarily.

30The appellant testified that on December 27, he spoke with Marcel by telephone and Marcel told him to keep his mouth [page331] shut or his grandmother and girlfriend would be at risk. According to the appellant, he did not see Marcel again until June of 1996 following Marcel's arrest on several offences including sexual assault and assault with a weapon. By chance, Marcel was detained at the Toronto East Detention Centre and he was placed in a cell two doors away from the appellant's cell. In total, the two men spent approximately seven weeks together in custody. During that timeframe, the appellant did not tell the guards that he was in danger from Marcel. Rather, on his version, he and Marcel got along well and they discussed the appellant's case at some length. Marcel even provided him with suggestions as to how to explain the presence of Mr. Tweed's blood on his pants. Finally, the appellant testified that in the summer of 1998, while he was still in custody awaiting trial, he learned of Marcel's death. Other evidence established that Marcel had died from a self- inflicted gunshot wound on October 3, 1996.

31When questioned by the police in the initial stages of the investigation, the appellant said nothing about his use of Mr. Tweed's credit card, nor did he tell the police that he had been in the Tweeds' apartment on the morning of the 26th. Likewise, he made no mention of Marcel, despite his belief that Marcel had been in the Tweeds' apartment on December 25 and his assumption that Marcel had killed the Tweeds. Indeed, the name Marcel Whyte did not come to the attention of the authorities until almost three years later when the appellant, in his examination-in-chief, revealed his story implicating Marcel as the likely killer for the first time. By then, to the appellant's knowledge, Marcel was dead. Nonetheless, in reply, the Crown was able to call Marcel's wife, Rachel, and her friend, Mena Bergantino, a primary school teacher. According to their evidence, Marcel was at home on Christmas day. On Christmas night, Rachel and Mena went to a movie and Marcel stayed home to babysit. When the two women returned home from the movie at about midnight, Marcel was at home and he and Rachel slept together in their bedroom. Mena slept on a couch in the living room near the apartment door. According to both Rachel and Mena, Marcel did not leave the apartment during the night and he and Rachel awoke together the next morning at around 10:00 a.m.

32Returning to the appellant's evidence, having denied the killings, downplayed the evidence of motive, explained how Mr. Tweed's blood may have come to be on his track pants and set up Marcel as the likely killer, the only remaining matter of any concern was his confession to Sergeant Matthews. On that score, the appellant had little difficulty. He agreed that the Sergeant [page332] had accurately reported most of his remarks. It was only the inculpatory statements that he denied making. Those, he claimed, were the product of concoction.

33Against that backdrop, I turn to the grounds of appeal.

Evidentiary Issues

(a) Did the trial judge err in admitting evidence going to the state of mind of the deceased, Mr. Tweed?

[34]

Evidentiary Issues

Some background facts are necessary to appreciate this ground of appeal.

35In a statement made by the appellant following his arrest, he told the police that they would probably find his fingerprints in the Tweeds' apartment because he had been "in every room". At trial, the appellant took the position that his relationship with the Tweeds was a good one and that in the weeks and months preceding their deaths, he had visited their apartment on a regular basis. According to the appellant, the Tweeds frequently asked him to do chores around their apartment and in the fall of 1995, when he briefly returned to school, they permitted him to borrow books to do "extra reading" for his courses. One of those books, he claimed, contained a duplicate credit card in Mr. Tweed's name. That is the credit card that he began to use on December 9, 1995.

36From his statement to the police and his trial testimony, the appellant clearly hoped to accomplish two things. First, he sought to convey the impression that his relationship with the Tweeds was a good one and thus, it was unlikely that he would kill them. Second, he wanted it known that there was an innocent explanation should his fingerprints be found in their apartment.

37With those background facts, I turn to the impugned evidence.

38Over the objection of defence counsel, the trial judge permitted Crown counsel to ask Mr. Tweed's daughter, Shirley Knight, about a statement made by her father in the course of a three-way telephone conversation with Ms. Knight, her father and her stepmother, Phyllis Tweed. According to Ms. Knight, the conversation took place around December 11, 1995, shortly after her father had been treated for a stroke and released from hospital. In the course of the conversation, the appellant's name came up as someone who might be able to assist the Tweeds in the sale of their automobile. It was in that context that Mr. Tweed reportedly said that he did not like or trust the appellant.

39The defence objected to the admissibility of Mr. Tweed's negative remark about the appellant, arguing that its prejudicial [page333] effect outweighed its probative value. The trial judge disagreed. In his view, the statement had "relevance to the likelihood of Mr. Tweed inviting Mr. Clark and thus of Mr. Clark being in their apartment to help them with ordinary everyday tasks as of the time Mr. Tweed made this statement". As for any potential prejudice arising from the statement, the trial judge was satisfied that it could be addressed by way of an appropriate limiting instruction.

40In his charge to the jury, the trial judge dealt with the impugned remark as follows:

At one point Shirley Knight stated her father said he did not like or trust Joel Clark. This was in the context of a three- way telephone call with Mrs. Knight and Mrs. Tweed. And it was said to have been said regarding whether to ask Mr. Clark to get an odometer reading from their car in the parking garage . . . . [I]t must be borne in mind that this evidence is not put in to show that the statement was true but only that it was said by Mr. Tweed at that time, early December, 1995, in relation to whether it was likely for the Tweeds to ask him to do chores for them in December. It must not be used to infer anything about an increased likelihood that Mr. Clark committed the offences charged. There's no direct bearing on the ultimate issues before you.

41I see no basis for interfering with the ruling of the trial judge. The impugned evidence bore directly on the appellant's credibility, both in terms of his asserted "good relationship" with the Tweeds and the frequency of his visits to their apartment for "innocent reasons". The trial judge directed the jury on the limited purpose for which the statement could be used and he warned the jury about its misuse. In doing so, he committed no error. Accordingly, the first branch of the appellant's argument fails.

42In the alternative, the appellant submits that even if the statement was admissible to show Mr. Tweed's state of mind, the trial judge should nonetheless have excluded it on the ground that it was unreliable. In support of his position, he points to the fact that the statement was made shortly after Mr. Tweed's stroke, at a time when his mental acuity may have been suspect. Secondly, he challenges the integrity of Ms. Knight's testimony in view of her relationship with the deceased and the fact that she did not advise the police of her father's remark about the appellant until after the appellant's arrest.

43I would not give effect to the alternative argument. It was not made at trial and it is not borne out by the record. Ms. Knight testified that following her father's release from hospital, he was mentally alert and in full possession of his faculties. Defence counsel at trial took no issue with her evidence on that point, nor did he challenge her credibility at large. In the circumstances, [page334] there is no basis for challenging the threshold reliability of the statement attributed to Mr. Tweed. Accordingly, this ground of appeal fails.

(b) Did the trial judge err in admitting evidence pertaining to the use and disposal of a blue gym bag belonging to the appellant?

[44]

Use and Disposal of the Gym Bag

Once again, additional facts are needed to flesh out this ground of appeal.

45On December 27, 1995, one day after the Tweeds had been murdered, the appellant and Shelley went shopping. When they left the appellant's apartment, the appellant was carrying a blue gym bag. The bag was well known to Shelley. In the fall of 1995, she had enrolled at the University of Western Ontario in London, Ontario, and on his frequent trips to see her, the appellant used the bag to carry his belongings. According to Shelley, the bag was soft-sided and it had a rectangular-shaped base. The appellant did not disagree that the bag was soft- sided but he vehemently denied that it had a rectangular- shaped base.

46In the ten months that she had known the appellant prior to December 27, Shelley could not recall any other occasion when the appellant had taken his gym bag to go shopping. That day, however, he kept it with him until they arrived by subway at the Eaton Centre. It was then that he advised Shelley that he had to go across the street to return a CD player that he had purchased. He told Shelley to wait for him inside the Eaton Centre because it was cold outside. Notably, a review of the items purchased on Mr. Tweed's stolen credit card did not disclose the purchase of a CD player and Shelley had no knowledge of the appellant receiving such a gift for Christmas.

47The appellant left Shelley at the Eaton Centre and returned within 15 minutes. Somehow, during that space of time, he was able to return the CD player even though on his admission, the store in question was so busy that shoppers were lined up onto the street.

48Upon his return, the gym bag was gone. The appellant told Shelley that he had discarded it in an outdoor garbage container because it was ripped. Shelley reminded the appellant that earlier that day, he had purchased a can of deodorant and placed it in the bag. The appellant told Shelley that he was not about to return to the garbage bin and rummage around for the bag. Accordingly, Shelley went outside to the garbage container and after locating the bag, she put her hand into it and retrieved the deodorant. In doing so, she did not check to see if the bag contained [page335] any other items. Significantly, she did not recall seeing any large tears in the bag. Indeed, she testified that to her knowledge, the bag was not ripped at all. Nonetheless, she left the bag in the garbage bin and she and the appellant went on their way.

49According to Sergeant Matthews, several weeks later, on January 13, 1996, while he and the appellant were in custody together, the appellant told him that there was evidence "out there" that "they will never find".

50As might be expected, Crown counsel at trial took the position that the gym bag contained evidence linking the appellant to the murder of the Tweeds. In support of her position, she relied on a body of circumstantial evidence from the crime scene and surrounding area and the interpretation of that evidence provided by Detective Inspector Lines in her capacity as an expert in crime scene reconstruction. More will be said about Detective Inspector Lines when I address the appellant's overriding concern that her evidence should not have been admitted at all. For now, I simply propose to highlight those aspects of her testimony that bear on the blue gym bag and its connection to the murder of the Tweeds.

51The Tweeds were stabbed to death in the master bedroom. While that room was covered in blood, the remainder of the apartment was free of blood, except for a small transfer stain located in the entrance foyer. That incongruity led Detective Inspector Lines to conclude that the killer was wearing different clothing during the murders than after the murders.

52On the patio at the rear of the Tweeds' apartment, the police located a single track of footprints leading from the exterior patio wall to the patio door. At first blush, it appeared from those footprints that entry into the apartment had been gained through the patio door. However, closer inspection revealed that the footprints were caused by someone who had walked backwards out of the apartment and then forward to the patio door, retracing the same footsteps. That conclusion was borne out by other evidence. For example, the bushes on the side of the patio wall opposite the apparent point of entry were not disturbed. That would not have been possible had the apparent point of entry been the actual point of entry. Likewise, the police discovered a fresh tool mark on the frame of the patio door, leading them initially to believe that the door had been pried open. Closer inspection revealed that the mark had been made at a time when the door was already open. That, in turn, explained why the dowel, which the Tweeds normally placed on the interior track of the door to prevent entry, was found undamaged in the den a few feet away from the patio door. [page336]

53Other evidence inside the apartment led Detective Inspector Lines to conclude that the murders had been committed by one person. For example, the rooms in the apartment were ransacked in conformity with a certain pattern. This was especially noticeable in the two bathrooms where the pattern of ransacking was identical. To the Detective Inspector, the detectable pattern showed that the ransacking had been carried out by one person.

54Returning to the area of the patio, on the ground below the west wall of the patio, the police located a single track of footprints leading away from the wall towards the parking lot. Those footprints were different from the footprints found on the patio. Significantly, on the ground near the patio where the second set of footprints commenced, the police observed a rectangular-shaped impression in the snow. That impression, they determined, was not consistent with the size or shape of any object that had been removed from the Tweeds' apartment. It was, however, consistent with the impression one would expect to find if a rectangular-shaped object were thrown over the patio wall to the ground below, a distance of some 11 feet. That is the distance the perpetrator would have had to jump before escaping through the parking lot. In the opinion of Detective Inspector Lines, the rectangular-shaped impression was consistent with something being thrown to the ground before the perpetrator jumped from the patio. That something, she determined, was probably a bag which the perpetrator used to secret clothing that had become bloodied during the killings. It could also have contained the murder weapon and the second pair of shoes that the perpetrator changed into before walking towards the parking lot.

55Against that factual background, the appellant submits that the trial judge erred in permitting the Crown to lead the evidence of his use and disposal of the gym bag on December 27, the day after the murders. In a nutshell, the appellant maintains that there was no evidence linking the blue gym bag to the crime scene and that the Crown's theory regarding its use in facilitating the murders amounted to rank speculation. Accordingly, the evidence surrounding the disposal of the bag should not have been admitted because its prejudicial effect significantly outweighed its probative value.

56With respect, I disagree. Admittedly, the evidence linking the gym bag to the murders was not overwhelming. Nonetheless, when considered as a whole, I am satisfied that there was a sufficient body of evidence from which the jury could reasonably infer that the appellant used the bag to facilitate the [page337] murders in the manner suggested by the Crown and that he discarded it, not because it was ripped, but because it contained evidence linking him to the crimes. The following non-exhaustive list represents some of the more salient items of the evidence that substantiate the Crown's position and remove it from the realm of speculation:

-- Evidence from Detective Inspector Lines that the murders were committed by a single person.

-- Evidence from Detective Inspector Lines that the perpetrator must have worn different clothing during the murders than after the murders.

-- Evidence of a rectangular impression in the snow in the vicinity of the second set of shoe prints leading from the exterior patio wall to the parking lot.

-- Evidence from Shelley Rothauser that the base of the appellant's gym bag was rectangular in shape (something the appellant vehemently denied).

-- The appellant's reason for disposing of the bag (it was ripped) and Ms. Rothauser's evidence to the contrary.

-- The improbability of the appellant's explanation for discarding the gym bag and the unanswered questions associated with it. For example, if the bag was ripped, why did the appellant take it with him on the 27th? Why did he not simply dispose of it at his apartment? Why did he wait to dispose of it in a public trashcan at a location frequented by throngs of people?

-- The improbability of the appellant's evidence concerning the return of a CD player, both in terms of him having such an item to begin with and also the speed with which he was apparently able to complete the task.

-- The appellant's confession to Sergeant Matthews that he had killed the Tweeds and that there was evidence "out there" that "they would never find".

57All in all, this body of evidence was reasonably capable of supporting the inference sought by the Crown. It follows that the trial judge did not err in admitting the evidence pertaining to the appellant's use and disposal of the blue gym bag. I would therefore reject this ground of appeal. [page338]

(c) Did the trial judge err in permitting the Crown to adduce evidence of the appellant's demeanour in response to a question posed by Shelley Rothauser?

[58]

Demeanour of the Accused

This ground of appeal has its genesis in a conversation between the appellant and Shelley Rothauser on the afternoon of December 26, 1995, shortly after the Tweeds had been found murdered.

59Shelley testified that on the afternoon of December 26, she visited the appellant at his apartment and they spoke about the murders of Mr. And Mrs. Tweed. In particular, she recalled raising the subject of the stolen credit card and remarking to the appellant that it was ironic that he had stolen the Tweeds' credit card and now they were dead. The appellant responded, voicing his concern that the police would think that there was a connection between the stolen card and the murders. Shelley replied, stating that she hoped that the appellant had disposed of the card and that it had played no part in the murders.

60According to Shelley, she and the appellant then discussed what they had heard about the murders. The appellant told her that it appeared as though the Tweeds had been the victims of a "robbery gone wrong". She disagreed, stating that from what she had heard on television, the police believed that there were not enough items missing from the apartment for it to be a robbery. The appellant countered, stating that only the Tweeds would know what in fact had been taken. (In his testimony, the appellant denied saying this.)

61According to Shelley, she then asked the appellant to look her in the eye and tell her whether he had committed the murders. She testified that when she posed the question, she and the appellant were about a foot apart and they were facing each other. The appellant replied "no, I did not" but at the moment of his response, he did not look at her.

62Shelley testified that over the course of her ten-month relationship with the appellant, whenever she and the appellant spoke, he would look directly at her. This time, although he did not look away from her, he "didn't focus as he was speaking . . . he just didn't stare [at] me straight on", even though she had asked him to look her in the eye.

63In his testimony, the appellant disputed significant details of Shelley's account. According to his version, when Shelley asked him whether he had committed the murders, they were not standing face to face and she did not tell him to look her in the eye. Instead, he claimed that on one occasion, after December 26, while he and Shelley were sitting side by [page339] side on the couch watching television, she asked him if he had been involved in the murders and he replied "no". The conversation did not seem important to him at the time. He was anxious about the investigation and, in his view, Shelley was merely trying to put him at ease.

64Over the objection of defence counsel, the trial judge ruled that Shelley could testify about the appellant's failure to look her in the eye when she asked him whether he had murdered the Tweeds. In the opinion of the trial judge, the proposed evidence did not amount to impermissible demeanour evidence. Rather, it formed part of a number of conversations, "close in time to the incident . . . that the accused had with somebody very close to him".

65Having admitted the evidence, the trial judge nonetheless viewed it with some skepticism and he instructed the jury accordingly:

I want to turn now just briefly to what's called demeanour evidence. You heard Shelley Rothauser testify that in a course of the conversation about the murders she asked Mr. Clark on December 26th to look at her and tell her if he had committed these murders. She said in-chief that he said, "No", but he wasn't looking at her. She added then that she was not sure where he was looking so it was not as if he suddenly looked away. On cross-examination she agreed that all she recalled was that he did not focus on her eyes.

Now again, it is for you to decide what you make of this exchange. I simply suggest that if you do accept it, remember that Mr. Clark did deny his involvement to her and the fact that he may not have met her eyes as she perceived it should be considered only as one piece of evidence among the rest that you do accept and not as some corner stone with which to ground the finding of guilt. It is not totally free of ambiguity, like much such demeanour evidence. It should be used more to confirm other facts at the most that you may accept than as an independent indicator.

66Defence counsel at trial did not object to that instruction. On appeal, the appellant reasserts his objection to the admissibility of the evidence and also complains, for the first time, that the charge was incorrect and inadequate.

67On the question of admissibility, the appellant relies upon this court's decision in R. v. Levert (2001), 2001 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.). In particular, he submits that the probative value of the impugned evidence was highly suspect because, as Levert points out, at p. 81 C.C.C.: "Perceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal." In the appellant's opinion, Shelley's testimony about his failure to look her in the eye fits squarely within the type of evidence that this [page340] court warned against in Levert. It was highly prejudicial and had little probative value. Hence, it should not have been received.

68As for the charge, the appellant submits that the trial judge failed to direct the jury that they could not use the evidence "to determine what the appellant intended or was demonstrating" and that he further failed to alert the jury to other possible explanations for the appellant's failure to make eye contact, such as his concern about the use of Mr. Tweed's credit card.

69With respect, I would not give effect to either of the appellant's arguments.

70Commencing with admissibility, the evidence in question differs from the type of evidence considered in Levert. At issue in Levert was evidence of equivocal conduct or behaviour, supposedly out of line with societal norms, attested to by an acquaintance with no special relationship to or knowledge of the accused. That is not this case. Shelley had a special relationship with the appellant. She knew him well enough to know that whenever they spoke, he looked directly at her. Moreover, on this occasion, she specifically asked him to look her in the eye when she posed the question. Under those circumstances, his failure in not only following his normal custom, but in failing as well to comply with her request, gave the evidence the added degree of probity needed to justify its reception. To be precise, I believe that if the jury accepted Ms. Rothauser's evidence, they could have used the appellant's reaction as after-the-fact conduct of guilt.

71It follows that the appellant has no cause to complain about the trial judge's instruction. The trial judge could have gone further than he did. As it is, he downplayed the significance of the impugned evidence and left it to the jury in a way that enured more to the appellant's benefit than his detriment.

72Accordingly, I would not give effect to this ground of appeal.

(d) Did the trial judge err in admitting the evidence of Detective Inspector Lines?

[73]

Evidence of Detective Inspector Lines

The admissibility of Detective Inspector Lines' expert testimony formed the centrepiece of the appellant's argument on appeal. Stripped to its essentials, the argument consisted of a two-pronged attack designed to show why the Detective Inspector's evidence should not have been received. First, the appellant maintained that her evidence as a whole was inadmissible because it was both unnecessary and unreliable and its prejudicial effect outweighed its probative value. Second, he submitted [page341] that much of her testimony was impermissible "criminal profiling" evidence and as such, it should have been excluded.

74To address these issues, it will be necessary to provide a brief outline of Detective Inspector Lines' testimony. Before doing so, I think it would be useful to consider the nature of her evidence with a view to distinguishing those aspects of it that were potentially admissible from those that were not. The distinction is relatively straightforward. It has been thoroughly canvassed by my colleague Charron J.A. in Ranger, supra (see generally paras. 68-82). Her scholarly analysis greatly simplifies my task.

75A properly qualified expert in crime scene analysis can offer opinion evidence about what occurred at the crime scene and how the crime was committed (see Ranger, at paras. 68-71). Hereinafter, I shall refer to such evidence as "crime scene reconstruction evidence". Crime scene reconstruction evidence is potentially admissible. Its ultimate acceptance or rejection will depend on whether it conforms with the rules that govern the admissibility of expert evidence in general.

76In respect of crime scene reconstruction evidence, assuming a properly qualified witness, I believe that the following three areas will generally require close attention:

-- Whether the evidence is necessary in the sense that it is likely to fall outside the knowledge or normal experience of the average juror.

-- Whether the opinion is reliable in the sense that it is anchored in the evidence and not the product of guesswork or speculation.

-- Whether there is a real danger that the jury will be overwhelmed by the evidence and give it more weight than it deserves.

77Evidence that a crime scene has been staged, that is, purposefully altered prior to the arrival of the police, is a subset of this type of evidence (see Ranger, at para. 53). Other examples of crime scene reconstruction evidence are referred to in Ranger, at para. 71:

Crime scene analysis (which I find useful to label as the "WHAT" referred to earlier) [reconstructing how the crime occurred per David C. Ormerod in his article entitled The Evidential Implications of Psychological Profiling, [1996] Crim. L. R. 863] results in many forms of expert opinion evidence that regularly meets the legal requirements for admissibility. A few examples readily come to mind: an expert's opinion in an arson case that a fire was not accidental but, rather, deliberately set; opinion evidence explaining the significance of blood spatters; a pathologist's opinion about the likely cause of [page342] death or of injuries observed on a deceased victim; an expert's opinion on how a motor vehicle accident happened. There are many more examples. This kind of evidence assists the trier of fact in understanding WHAT the crime scene shows. The admissibility of that kind of evidence will usually turn on questions of relevance or the witness's particular expertise. Of course, issues may also arise under any other aspect of the Mohan test [1994 80 (SCC), [1994] 2 S.C.R. 9]. However, the scientific basis for this kind of evidence is usually not contentious.

78Crime scene reconstruction evidence is to be contrasted with expert evidence offered to explain why the crime was committed in a particular manner (the perpetrator's motivation) and more particularly, who is more likely to have committed the crime (see Ranger, at para. 72). Hereafter, I shall refer to such evidence as "criminal profiling evidence".

79In Ranger, at para. 82, Charron J.A. held that the criminal profiling evidence given in that case by Detective Inspector Lines was inadmissible because:

Criminal profiling is a novel field of scientific evidence, the reliability of which was not demonstrated at trial. To the contrary, it would appear from her limited testimony about the available verification of opinions in her field of work that her opinions amounted to no more than educated guesses. As such, her criminal profiling evidence was inadmissible.

On this record, those observations apply with equal force to any criminal profiling testimony offered by Detective Inspector Lines.

Testimony of Detective Inspector Lines

[80]

Testimony of Detective Inspector Lines

Detective Inspector Kathryn Lines is the manager of the Behavioural Sciences Section of the Ontario Provincial Police. The Behavioural Sciences Section provides the police with specialized investigative support services, including the reconstruction of crime scenes and criminal profiling.

81Detective Inspector Lines became involved in the present case on January 2, 1996. She was contacted by Detective Mark Tatz of the Homicide Squad and asked to meet with the investigators and attend at the scene. According to Detective Inspector Lines, Detective Tatz wanted an "outsider's view of the crime scene. He was concerned that the crime scene might be staged, but he wanted to get somebody else's opinion on that." To that end, Detective Inspector Lines received photographs and a videotape of the crime scene and she personally attended at the Tweeds' apartment. She also received information from the police regarding their investigative findings as well as the post-mortem reports.

82Based on her independent observations and information provided to her, Detective Inspector Lines formed an opinion [page343] about what had happened at the crime scene and the manner in which the Tweeds had been murdered. Specifically, it was her opinion that a single perpetrator had entered the Tweeds' apartment through the front door; that entry had been gained without force; that the Tweeds were stabbed to death in a blitz-like attack while they lay sound asleep in bed; that the perpetrator was wearing different clothing during the murders and after the murders; that after killing the Tweeds, the apartment was ransacked to make it appear as though a burglary had occurred; that the perpetrator then left through the patio door, threw something over the patio wall to the ground below, jumped off the wall, changed into different footwear and escaped through the parking lot.

83The body of evidence that I have just outlined forms the bulk of Detective Inspector Lines' testimony. It can be conveniently divided into two aspects:

(1) Opinion evidence that the crime scene was staged; and

(2) Opinion evidence as to how the crime was committed.

Whether either aspect of her testimony was admissible remains to be seen. For the moment, suffice it to say that in my view, the two aspects just mentioned constitute crime scene reconstruction evidence, that is, evidence about what occurred at the crime scene and how the crime was committed. As such, for reasons already stated, I believe that it was potentially admissible.

84That body of evidence is to be contrasted with the remainder of the Detective Inspector's evidence, which, though small in proportion, nonetheless constituted impermissible criminal profiling evidence.

85The impermissible criminal profiling evidence took two forms. First, in light of her opinion that the crime scene had been staged and her further opinion that people stage crime scenes to divert suspicion from themselves, Detective Inspector Lines took this to mean that "the person responsible for the deaths of Phyllis and William Tweed would have some knowledge or relationship with them." In accordance with Ranger, that evidence was impermissible because it spoke to the motivation and characteristics of the likely perpetrator (see Ranger, at para. 82). Accordingly, it should not have been received.

86Second, in testifying about a phone that had been taken off the hook and covered with an afghan blanket, Detective Inspector Lines considered it significant that the phone in question was located in the family room "farthest away from where the Tweeds apparently were sleeping or at rest". In her opinion, it seemed apparent that the perpetrator had selected that phone because [page344] the Tweeds would be less likely to hear the beeping noise from it due to its location. Detective Inspector Lines also referred to the lighting conditions in the apartment when the homicide investigators arrived. Initially, she was under the erroneous impression that the lighting was "very low". That being so, Detective Inspector Lines was of the view that, to get to the family room which was at the opposite end of the apartment from the entrance door and remove the phone without being detected, the offender was someone "who moved about this residence with a fair bit of ease and comfort".

87To the extent that the Detective Inspector's evidence about the phone and the lighting may have conveyed the impression that the offender was someone familiar with the layout of the Tweeds' apartment, it was offensive. She was not entitled to testify about the characteristics of the likely offender, characteristics which in this case fit comfortably with the appellant. That constituted criminal profiling evidence. As such, for reasons stated earlier, it was inadmissible and it should not have been received.

88In sum, I have identified two aspects of Detective Inspector Lines' evidence that constituted impermissible criminal profiling evidence. In fairness to the trial judge, I am certain that he would have excluded that evidence had this court's decision in Ranger been available to him. Unfortunately, it was not.

89Having identified those aspects of Detective Inspector Lines' testimony that constituted impermissible criminal profiling evidence, I now turn to the rest of her evidence to see whether it was admissible in whole, or in part, or not at all. As I have already pointed out, most of Detective Inspector Lines' testimony constituted crime scene reconstruction evidence. As such, it was potentially admissible. The question remains -- should it have been admitted?

90Commencing with the first aspect of her evidence, namely, that the crime scene had been staged to make it appear as though a burglary had occurred, in my view, that evidence was properly admitted. In so concluding, I am satisfied that Detective Inspector Lines was qualified to express an opinion about staging; that the evidence given by her fell outside the knowledge and experience of the average juror; that her opinion was reliable in the sense that it was anchored in the evidence and not the product of guesswork or speculation; and that the evidence of staging was not so complex or technical that the jury was likely to be overwhelmed by it and give it more weight than it deserved.

91With respect to the last consideration, which is really just another way of assessing whether the probative value of [page345] the evidence exceeded its prejudicial effect, I have considered whether the evidence of staging could have been given by one or more of the homicide detectives as opposed to Detective Inspector Lines, whose credentials covered the better part of 30 pages of transcript. The concern, identified by Charron J.A. at para. 64 of Ranger, is that in and of itself, the "lead-up to the presentation of the crime scene evidence" may have "served to give the staging evidence an omniscient glow that enhanced the likelihood that the jury would give the expert opinion more weight than it deserved".

92I will have more to say about the Detective Inspector's credentials when I address the second aspect of her crime scene reconstruction evidence, namely, how in her opinion the crimes were committed. For present purposes, I would simply point out that on this record, I am not at all certain that the evidence which she gave about staging could have been given by the homicide detectives. While it is true that Detective Tatz and Constables Charlebois and Lanegraff testified that the scene in the Tweeds' apartment appeared "inconsistent" with other "break and enter" scenes that they had investigated over the years, their opinions on the issue of staging were far more tentative and not nearly as comprehensive as the opinion offered by Detective Inspector Lines.1 Presumably, that is because the officers did not have the same degree of training and expertise in crime scene analysis as Detective Inspector Lines. Otherwise, it is unlikely that Detective Tatz would have needed her assistance in the first place. In sum, I reject the suggestion that the Crown did not need to call Detective Inspector Lines to make out its case of staging.

93The second aspect of Detective Inspector Lines' crime scene reconstruction evidence -- how the crimes were committed -- is admittedly more troublesome. Nonetheless, in the final analysis, I am satisfied that it too was properly admitted.

94The evidence in question relates to various opinions offered by Detective Inspector Lines as to the manner in which the murders were committed. Without going into detail, it includes such things as her opinion that the crimes were committed by a single person; that entry into the Tweeds' apartment was gained through the front door without the use of force; that once inside the apartment, the killer, dressed in clothing that differed from the clothing worn after the murders, carried out a blitz-like attack on the Tweeds, stabbing them to death while [page346] they lay sound asleep in bed; that after killing the Tweeds, the apartment was ransacked to make it appear as though a burglary had occurred, following which the killer left through the patio door, jumped to the ground, changed footwear and escaped through the parking lot.

95In assessing the admissibility of that body of evidence, I have no difficulty in concluding that it was necessary. In short, I do not believe that the average juror could have drawn the inferences and made the connections that Detective Inspector Lines was able to make by virtue of her expertise and training in crime scene analysis.

96The more difficult question is whether the Detective Inspector's opinions were sufficiently reliable to warrant their reception. As indicated, in this case, that depends on whether they were anchored in the evidence or whether they were the product of guesswork and speculation.

97In the end, I am satisfied that all of the opinions offered by Detective Inspector Lines were anchored in the evidence. Manifestly, within the mix, some were more securely anchored than others. None, however, was the product of guesswork or speculation.

98The most significant of the Detective Inspector's opinions are itemized below. Each is accompanied by a brief summary of the supporting evidence.

Opinion 1: Entry to the Tweeds' apartment was gained through the front door, without the use of force.

99The front door of the Tweeds' apartment was unlocked when the police arrived. No damage was done to the door or the locking mechanism. Efforts to make it appear as though the patio door had been pried open were easily detected and determined by the police to be the product of staging.

Opinion 2: The Tweeds were killed in a blitz-like attack while they lay sound asleep in bed. Staging occurred after the killings.

100Mrs. Tweed was found in bed; Mr. Tweed was found beside the bed entwined in bed sheets. Both had been stabbed to death through the heart. Not a single defensive wound was found on either. A telephone and a pair of glasses2 were found on the [page347] nightstand beside Mrs. Tweed. Both were undisturbed. Had the staging occurred before the killings, in all likelihood, the Tweeds would have heard the commotion and confronted the intruder.

Opinion 3: The clothing worn by the perpetrator at the time of the stabbings was different from the clothing worn after the stabbings. The perpetrator was carrying something on leaving the premises.

101The master bedroom was covered in blood. During the stabbings, it is likely that the perpetrator's clothing would have become bloodied. And yet, beyond the bedroom, apart from a tiny transfer stain in the foyer, no blood was located. This was anomalous given the perpetrator's conduct, after the killings, of entering and ransacking every room in the apartment. It follows that the perpetrator must have secreted his bloodied clothing in something and carried it away. The rectangular mark in the snow beneath the patio wall was consistent with an object being thrown over the wall before the perpetrator jumped from a height of 11 feet to the ground.

Opinion 4: The murders were committed by one person.

102In an effort to make it appear as though a burglary had occurred in the Tweeds' apartment, most of the rooms were ransacked. The ransacking in each room conformed to a certain pattern. This was especially noticeable in the two bathrooms, where the pattern of ransacking was identical. Also telling was the similar location and nature of the stab wounds inflicted upon Mr. and Mrs. Tweed. Both victims were stabbed in the chest with a single-edge knife that likely had no hilt. On any standard, that appeared to be the work of one killer.

103In sum, I am satisfied that there was support in the evidence for Detective Inspector Lines' opinion as to how the murders were committed and in view of her qualifications and expertise as a crime scene analyst, I am further satisfied that her opinion evidence was sufficiently reliable to warrant its reception.

104That brings me to what I consider to be the most problematic feature of Detective Inspector Lines' crime scene reconstruction evidence. Stated simply, there is a possibility that the jury may have been overwhelmed by the infallibility of her opinion and given it more weight than it deserved. Two matters in particular give rise to this concern.

105First, as I have already observed, it took the better part of 30 pages of transcript to qualify Detective Inspector Lines. For the most part, the qualifying evidence had little, if anything, to [page348] do with her training and expertise in the field of crime scene reconstruction. Rather, a good 70 per cent of it related to the subject of criminal profiling and her expertise and training in that field. In the result, most of the qualifying evidence was irrelevant and the jury should not have heard it. Having been exposed to her credentials as a criminal profiler, there was an increased risk that the jury would give her crime scene reconstruction evidence more weight than it deserved.

106The second concern relates to the nature and extent of the opinion evidence offered by Detective Inspector Lines. Insofar as her evidence purported to explain what occurred at the crime scene and how the crimes were committed, Detective Inspector Lines provided the jury with an easy-to-follow step- by-step road map that conformed neatly with the Crown's theory of liability against the appellant. Given her impressive credentials, there was a risk that the jury would all too readily follow the Detective Inspector's road map and accept her evidence without subjecting it to the kind of scrutiny it required.

107Combined, these two concerns raise the spectre of trial by expert as opposed to trial by jury. That is something that must be avoided at all costs. The problem is not a new one but in today's day and age, with proliferation of expert evidence, it poses a constant threat. Vigilance is required to ensure that expert witnesses like Detective Inspector Lines are not allowed to hijack the trial and usurp the function of the jury.

108In the present case, I believe that Detective Inspector Lines' testimony came close to doing just that. In the end, however, I am not persuaded that it crossed the permissible line. Specifically, I reject the suggestion that the jury would have been overwhelmed by her testimony and given it more weight than it deserved. On the contrary, for reasons that follow, I am satisfied that the jury would have scrutinized her evidence with care and given it the weight it deserved. In short, I do not see this as a case of an expert witness usurping the function of the jury.

109First, Detective Inspector Lines' opinion evidence was not overly complex or technical. It was relatively straightforward and the jury would have had no difficulty following it or comprehending it. As such, there was less risk of the jury being overwhelmed by its infallibility such that they were likely to give it more weight than it deserved. On the contrary, the jury was well equipped to assess its worth.

110Second, because the opinion evidence was not overly technical or complex, it was not resistant to cross- examination. This is borne out by the record. The cross- examination here was thorough and effective. No constraints were placed on defence counsel [page349] and he fully and ably developed his thesis that the Detective Inspector's evidence was a product of tunnel vision and guesswork and that in arriving at her opinions, she either ignored or conveniently sloughed off inconsistencies in the evidence that diminished her position. Defence counsel also did a capable job of testing the Detective Inspector's qualifications, particularly in the field of criminal profiling. In that regard, as the record shows, he effectively challenged not only the degree and extent of her expertise but the validity of criminal profiling in general. All in all, it is safe to say that this jury was not likely to have been overwhelmed by the Detective Inspector's qualifications or the infallibility of her evidence.

111Any residual doubt in that regard is put to rest by the trial judge's mid-trial and closing instructions to the jury. Immediately after Crown counsel had qualified Detective Inspector Lines, the trial judge provided the jury with the following mid-trial instruction:

Now, I just want to mention, members of the jury . . . you will hear and have heard various experts from various fields, I'll instruct you further at the end of the case in regard to assessing their evidence. But I just want to tell you right now, they're to be treated like any other witness, they are qualified in a particular area merely to give their opinions. The soundness of those opinions is for you to decide and for that you have to listen to, of course, their training, their experience, what they did, did they use assumptions that were wrong, did they use basic information that might have affected their opinion, how reliable is their opinion. All that is for you to find at the end of the day. So, you don't need to treat expert witnesses as anything more than they are, people who are trained but are fallible like anybody else. And so you study their evidence carefully, listen to them in each case and you have the final decision as to whether you accept their opinion or not. Okay. Carry on. And as I say, I'll instruct you further on that later but that's a brief overview. So, don't be overwhelmed by C.V.'s, resumes, courses, lectures, et cetera. You still have to listen to what they say and decide at the end of the day if it's helpful to you. Go ahead.

112In his closing instructions to the jury, the trial judge devoted a good deal of attention to the subject of expert evidence. He told the jury that expert evidence, like any other evidence "can be subject to frailties" and those "frailties can result from faulty observation, bias in the witness, limitations in their training, incomplete testing and ungrounded or unproven assumptions." He further reminded the jury that it was for them to decide "how much weight you give to their opinions" and that experts were allowed to give opinions solely "to help you in deciding the issues in this case". He then continued as follows:

You should, of course, consider carefully the testimony and opinions of the expert witnesses, just as you would consider carefully the evidence of any other witness, particularly their demeanour, their impartiality, whether [page350] their assumptions were based on proven facts and all the limitations which they expressed in their observations and on their opinions. Like any other witness, you must consider their evidence and determine what weight, if any, to give it. Just because they have some specialized knowledge is no reason to accept what they say, unless you find it to be sound and helpful. Do not be overwhelmed by other qualifications. You are not bound to accept the opinions expressed if, in your judgment, they are not sound. You may refuse to accept the opinion of an expert if you find there is evidence which would allow you to reject it or differ from it. In the end, it is your perceptions and conclusions which will determine what, if any, weight or importance to give to the opinion of any of the expert witnesses who testified and the reasons given for their opinions.

113In sum, the trial judge warned the jury in no uncertain terms about the frailties of expert evidence and the need to assess it with care and not be overwhelmed by it. His instructions reinforce my belief that this jury was not overwhelmed by the opinion evidence given by Detective Inspector Lines.

114Finally, in response to the concern that Detective Inspector Lines effectively wrote the script for the jury and thus usurped their function, I would simply observe that while her testimony may have been significant, it was far from dispositive of the ultimate issue. As I shall point out in the next segment, taking her evidence as a whole, including the tiny portion of it that constituted impermissible criminal profiling, the appellant was only one of many people who could have entered the Tweeds' apartment and killed Mr. and Mrs. Tweed.

115In the end, I am satisfied that Detective Inspector Lines' crime scene reconstruction evidence was properly admitted. Accordingly, this ground of appeal fails, except insofar as it relates to those aspects of the Detective Inspector's evidence that constituted impermissible criminal profiling evidence.

Alleged Improprieties on the Part of Crown Counsel

[116]

Alleged Improprieties on the Part of Crown Counsel

The appellant takes issue with the manner in which Crown counsel cross-examined him. He also objects to portions of her closing address. Specifically, he submits that the cross-examination was inflammatory in that it was designed to demean and humiliate him and portray him as a person of bad character. He takes the same stance in relation to the closing address.

117In his factum, the appellant has listed a number of instances which he says support his position that the cross- examination was designed to vilify and humiliate him and portray him as heartless, conniving, greedy, selfish and racist. He has also identified several examples from the closing address which support his claim that Crown counsel mounted a personal attack on his character and held him up to ridicule and scorn. [page351]

118In order to resolve this ground of appeal, I find it unnecessary to address the various examples cited by the appellant on an item-by-item basis. Counsel for the respondent has done so in his factum and his analysis of each complaint is thorough and comprehensive. Given my overall view of this ground of appeal, it would be wasteful to rehash the individual submissions. Suffice it to say that in my view, the respondent has satisfactorily answered all of the complaints levelled by the appellant.

119Given the seriousness of the appellant's allegations, I have read Crown counsel's entire cross-examination of him and her closing address to the jury. Having done so, I am satisfied that most of the allegations raised by the appellant are unfounded and those that are not are significantly overstated.

120The cross-examination of the appellant was lengthy and at times somewhat ponderous. For the most part, however, it was fair and relevant. On the odd occasion that it crossed the line, the trial judge quickly intervened and put a halt to it. The fact that the cross-examination portrayed the appellant in a bad light did not make it offensive. The Crown was entitled to establish that the appellant had a powerful motive to kill the Tweeds. Unfortunately for the appellant, this meant leading evidence of his fraudulent use of Mr. Tweed's credit card and other behaviour on his part that showed him to be crass, self- centred, greedy and cunning.

121To the extent that the evidence portrayed the appellant in a bad light, the trial judge took pains to ensure that the jury understood how the evidence could be used and how it could not be used. Contrary to the submission of the appellant, I think that the trial judge's limiting instructions were exemplary.

122Back to the cross-examination, in my view, it does not warrant the sanction of this court, let alone entitle the appellant to a new trial. In so concluding, I repeat what this court has said before in similar circumstances (see, for example, R. v. Baltrusaitis (2002), 2002 36440 (ON CA), 58 O.R. (3d) 161, 162 C.C.C. (3d) 539 (C.A.), at pp. 170-71 O.R., p. 550 C.C.C.). This was not a tea party. It was a hard-fought murder trial and both sides were entitled to press their case and put their best foot forward. Crown counsel here did just that. Her cross- examination was firm and relentless but fair. When necessary, the learned and experienced trial judge did his job and put a halt to questions which, in his view, were inappropriate. That is how it should be.

123The same holds true for the closing address. It was lengthy, it was hard-hitting and it left no stone uncovered. It was not, however, unfair or inflammatory. On the one occasion that Crown counsel did inadvertently overstep the mark, the trial [page352] judge intervened quickly and took corrective steps to remove any potential prejudice.

124Allegations of the kind made here against Crown counsel are serious. Care should be taken before they are made. Hard- earned reputations for professionalism and integrity are at stake and they can all too easily be unfairly sullied.

125Crown counsel in this case acted properly. The allegations against her are either unfounded or significantly overstated. Accordingly, I would reject this ground of appeal.

The Curative Proviso

[126]

The Curative Proviso

The only error in this case involves the admission of a small amount of impermissible criminal profiling evidence. In particular, the jury may have taken from Detective Inspector Lines' evidence that the perpetrator was someone who had "some knowledge or relationship" with the Tweeds and some knowledge of the layout of their apartment.

127Those characteristics would of course include the appellant. They would also include a host of other people, such as acquaintances and relatives of the Tweeds, residents of the building who knew the Tweeds and generally, anyone who may have had dealings with the Tweeds that involved access to or information about their unit.

128Turning to the proviso, the question that must be asked is whether the verdicts would necessarily have been the same had the jury not heard the impermissible criminal profiling evidence. I would answer that question in the affirmative for two reasons.

129First, I do not believe that the impermissible evidence occasioned any significant harm to the appellant. While it admittedly went to the important issue of identity, it did not single out the appellant or even place him within a small identifiable group. Moreover, given the appellant's position that his friend Marcel Whyte was the likely killer, Whyte too would have shared the characteristics described by Detective Inspector Lines.

130That fact was not lost on the defence. Indeed, in her closing address, defence counsel specifically made use of the "relationship" inference described by Detective Inspector Lines. Here is what she said:

Marcel Whyte went into that apartment on behalf of Joel Clark who knew the Tweeds. Marcel knows Joel knows the people. The theory put forward by the prosecution through Miss Lines applies equally to Marcel.

131To the suggestion that the defence, having failed to exclude the "relationship" evidence, may simply have been trying [page353] to make the best of a bad situation, I would respond that absent fresh evidence from the appellant that he felt compelled to concoct the "Marcel Whyte" scenario to meet the impugned evidence, the argument rings hollow. Manifestly, no such evidence exists.

132The trial judge also recognized that the characteristics referred to by Detective Inspector Lines would include Marcel Whyte. In his charge to the jury, after downplaying some of the Detective Inspector's qualifications as a criminal profiler, the trial judge continued as follows:

She admitted that profiling is not an exact science and it is fallible. For instance, she agreed that it was more correct to say, given the short history of this type of expertise, that the victim is probably known by the offender, it is not a certainty. She agreed there could be other circumstances. In fact, the way she put it in-chief was that the offender would have some knowledge or relationship with the victim.

In this case, that would include not only Mr. Clark but also a scenario such as the very one he suggested, an intruder who had knowledge of the Tweeds and their apartment, supplied by an acquaintance of the Tweeds himself. It was clear that throughout, apart from her staging opinion, Inspector Lines was speaking of probabilities and therefore, her evidence must be approached with that in mind. It should not be taken alone as establishing certainties.

133In all of the circumstances, I am satisfied that the impugned evidence occasioned little if any harm to the appellant and that the verdict would necessarily have been the same had it been withheld from the jury.

134Even if I have misread the degree of prejudice occasioned by the inadmissible evidence, I would still apply the curative proviso because in my view, the case against the appellant was overwhelming and he would surely be convicted again if retried.

135In short, the appellant's evidence about Marcel Whyte's involvement is preposterous. Apart from the fact that he waited almost three years to tell the story when he knew that Marcel was dead and unable to respond, on his own account, Marcel and an accomplice must have returned to the Tweeds' apartment between 4:30 a.m. and 5:45 a.m. on the morning of December 26 and murdered the Tweeds for no apparent reason. Manifestly, Marcel could not have killed the Tweeds earlier, (between 4:00 p.m. and 7:00 p.m. on December 25) when, on the appellant's version, he would have been in their apartment. The Tweeds were away at that time visiting family and according to the undisputed evidence of their daughter Shirley Knight, they arrived home safely at about 9:30 p.m.

136Beyond that, the appellant's story about enlisting Marcel's aid to steal Mr. Tweed's PIN number makes no sense [page354] whatsoever. The appellant knew or at least presumed that he had been captured on videotape when he purchased the engagement ring for Shelley on December 19. On his own evidence, it was just a matter of time before he "expected to be caught". There was nothing that Marcel could do to change that.

137In sum, from beginning to end, the appellant's story about Marcel Whyte's involvement constitutes a web of lies and any jury, acting reasonably, would have rejected it out of hand, along with the remainder of the appellant's exculpatory testimony.

138With the appellant's evidence off the table, the case against him was virtually insurmountable. Opportunity, a powerful motive to kill the Tweeds, Mr. Tweed's blood on his pants, forensic evidence establishing a blitz-like attack on the Tweeds and his confession to Sergeant Mathews -- all of this added up to a formidable case of two counts of first degree murder against the appellant.

Conclusion

[139]

Conclusion

The appellant had a fair trial. The trial judge's charge to the jury was clear, thorough and even-handed. The verdicts rendered by the jury are unassailable, and for reasons stated, I am satisfied that they necessarily would have been the same had the jury not been exposed to the small amount of impermissible criminal profiling evidence.

140In the result, I would dismiss the appeal.