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

72 O.R. (3d) 135

[2004] O.J. No. 3228

Docket No. C35309

Court of Appeal for Ontario,

Weiler, Cronk and Gillese JJ.A.

July 30, 2004

Criminal law -- Mental disorder -- Protected statements -- Accused introducing his statements made during court-ordered assessment pursuant to Criminal Code to determine whether he was criminally responsible at the time of the offence -- Accused calling doctor who did [page136] assessment as defence witness -- Crown cross-examined accused about statements made during assessment without voir dire and without defence objection -- By placing statements before jury accused waived limits afforded to "protected statement" pursuant to s. 672.21 of Criminal Code -- Any privilege regarding statements to doctor was waived by calling doctor as defence witness -- Appeal from conviction dismissed -- Criminal Code, R.S.C. 1985, c. C-46, ss. 672.11, 672.21.

Criminal law -- Trial -- Evidence -- Credibility -- Disbelief of accused's claim of amnesia about events surrounding death of two deceased -- Crown's closing address stating that if jury disbelieved accused about amnesia they could conclude he lied to hide involvement in deaths -- No error in failing to instruct jury that lying wasn't proof of guilt as jury would not have concluded based on closing that if he lied about amnesia that amounted to circumstantial proof of guilt -- Defence did not object to the charge to the jury -- Dispute between Crown and defence pertaining to motive for accused's admitted lies rather than whether statements false -- Crown's address noting that some doctors concluded accused malingering and unreliable -- Trial judge not required to caution jury not to rely on doctor's opinions when assessing accused's credibility -- Appeal from conviction dismissed.

The accused was charged with two counts of first degree murder. The Crown's case was based on a substantial body of circumstantial evidence. The accused conceded that he was at the scene of the crime, that he had contact with both victims and that he had oral sex with one of them. He alleged that he suffered from post-traumatic stress disorder and amnesia as a result of the incident and had no memory of the events. The defence called evidence about the effects of a serious head injury which the accused suffered in 1996. The court had ordered an assessment under s. 672.11 of the Criminal Code to determine whether the accused could be exempted from criminal responsibility as a result of mental disorder pursuant to s. 16 of the Criminal Code. The accused was assessed by Dr. B, who concluded that he was not suffering from a mental disorder that would render him not criminally responsible. While he was undergoing assessment, the accused initially provided a detailed account of his movements o n the night of the murders, but later claimed to have a "blank in his memory". He explained his inconsistent statements by saying that, when he first arrived at the hospital, he tried to make sense of what had happened on the night in question by accounting for the time gaps based on his ordinary routine. These statements were introduced as defence evidence at trial, and Crown counsel cross-examined the accused extensively on them. No voir dire was held at trial to determine the extent of the cross- examination that would be permitted on the accused's statements; nor was a voir dire conducted to determine the voluntariness of the statements. Defence counsel did not object to the Crown's questions on the statements during cross- examination. Dr. B was called as a defence expert, and testified that the accused's tests seemed to show memory problems, but added that the test scores suggested that the accused was faking memory problems, that there was evidence of symptom magnification, and that t he accused's story was inconsistent with the evidence. The accused was convicted. He appealed.

Held, the appeal should be dismissed.

The trial judge did not err by failing to caution the jury that it would be improper to use disbelief of the accused's claim of amnesia as circumstantial evidence of guilt. When a trier of fact disbelieves an exculpatory statement made by [page137] the accused, it is proper for the trier of fact to infer that the accused's statement is false. However, unless there is evidence of fabrication, it is improper for a trier of fact to infer from disbelief of the accused's statement that the accused is guilty. Crown counsel's closing stated that if the jury was satisfied beyond a reasonable doubt that the accused was lying when he said he did not remember the events surrounding the victims' deaths, then "you can be sure that the reason he is lying about that is to hide his involvement in the deaths of these two young women". The trial judge did not explain to the jury that it would be improper to use disbelief of the accused's claim of amnesia as circumstantial evidence of guilt. The impugned statements were mad e in the context of a dispute between counsel over the accused's motive for lying in prior statements. In context, the jurors would not have understood that they could use the "amnesia lie" as a separate piece of circumstantial evidence of guilt. Defence counsel did not object to the charge to the jury and did not ask the trial judge to instruct the jury not to infer the accused's guilt from their disbelief of his evidence. That was significant, given that in pre-trial discussions, the trial judge and counsel explicitly discussed the merits of including an instruction on "consciousness of guilt" in the charge to the jury.

The trial judge did not err with respect to the use of protected statements as defined by s. 672.21 of the Criminal Code. The statements made by the accused while on the court- ordered assessment were deemed to be protected statements by operation of s. 672.21. Section 672.21(2) deems inadmissible any statements made by an accused to the persons conducting the assessment, unless the accused consents to the admission of the statements or the statements are tendered for a purpose enumerated in s. 672.21(3). In this case, the accused himself placed his statements before the jury both through his own evidence and the evidence of Dr. B. By doing so, he consented to their admission and waived the protection provided by s. 672.21. It was unnecessary to hold a voir dire to determine if the statements were voluntary. The accused never suggested that his statements were made involuntarily, but rather that they were "made up" to fill in the gaps in his memory. The accused's testimony also made it un necessary to hold a voir dire to determine whether the statements were inconsistent in a material particular, since he admitted that they were. The accused's submission that the statements could only be used as prior inconsistent statements and that the trial judge had to instruct the jury accordingly also failed. Having placed the statements in evidence himself, the limited admissibility permitted by s. 672.21(3)(f), to challenge the accused's credibility, no longer applied. The Crown had to be allowed to ensure that the jury received a balanced view of the evidence, and once the accused placed the statements in evidence, it was not open to him to pick and choose what portions to disclose to the jury.

If there was independent evidence that the accused's statements to the doctors were fabricated, the statements could be considered as evidence of the accused's culpability, in the particular circumstances of this case.

Crown counsel cross-examined Dr. B whether there was evidence of unreliability and malingering when the accused was assessed. In his closing address, Crown counsel referred to the evidence concerning the accused's assessment, and pointed out that various doctors, including Dr. B, had concluded that the accused was unreliable. The trial judge did not err by failing to instruct the jury not to rely on third party opinions of the accused's truthfulness when assessing his credibility at trial. Dr. B and the other doctors whose tests he relied upon expressed no opinions concerning the accused's general credibility, or his truthfulness or reliability outside the parameters of the tests. Crown counsel's statements to the jury simply recited the conclusions of the assessors in respect of the accused's claim of mental illness triggering amnesia, and did not invite the jury to rely on [page138] the doctors' opinions for its ultimate conclusion as to the reliability or truthfulness of the accused. In any event, the

jurors were instructed by the trial judge that it was for them alone to determine the credibility of a witness based on the evidence at trial together with their experience and common sense. They were also told that it was up to them to decide how much weight should be given to an expert opinion and that they were free to reject the testimony of any of the expert witnesses. In the face of those instructions, there was no basis upon which to suggest that the jury was misled into simply relying on the opinions of experts concerning the reliability of the accused.

APPEAL by the accused from convictions entered by LaForme J., sitting with a jury, dated July 13, 2000, for first degree murder.

Cases referred to R. v. Blazeiko (2000), 2000 14726 (ON CA), 48 O.R. (3d) 652, 145 C.C.C. (3d) 557 (C.A.); R. v. Coutts (1998), 1998 4212 (ON CA), 40 O.R. (3d) 198, 126 C.C.C. (3d) 545, 16 C.R. (5th) 240 (C.A.) [Leave to appeal to S.C.C. refused (1999), 239 N.R. 193n]; R. v. G. (B.), 1999 690 (SCC), [1999] 2 S.C.R. 475, 174 D.L.R. (4th) 301, 240 N.R. 260, 63 C.R.R. (2d) 272, 135 C.C.C. (3d) 303, 24 C.R. (5th) 266 (sub nom. R. v. Grégoire); R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, 108 D.L.R. (4th) 47, 159 N.R. 81, 85 C.C.C. (3d) 193, 25 C.R. (4th) 1; R. v. O'Connor (2002), 2002 3540 (ON CA), 62 O.R. (3d) 263, 100 C.R.R. (2d) 164, 170 C.C.C. (3d) 365, 7 C.R. (6th) 205, [2002] O.J. No. 4410 (C.A.); R. v. Pollock, 2004 16082 (ON CA), [2004] O.J. No. 2652, 188 O.A.C. 37, 187 C.C.C. (3d) 213 (C.A.); R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290, 173 D.L.R. (4th) 66, 239 N.R. 201, 63 C.R.R. (2d) 43, 134 C.C.C. (3d) 353, 24 C.R. (5th) 1; R. v. Trochym (2004), 2004 1262 (ON CA), 71 O.R. (3d) 611, [2004] O.J. No. 2850, 188 O.A.C. 330, 186 C.C.C. (3d) 417 (C.A.); [ cf2]R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 229, 672.11, 672.21

Michael W. Lacy, for appellant. Rosella Cornaviera, for respondent.

BY THE COURT: --

Overview

1This is an appeal from conviction, imposed by a jury sitting with LaForme J. of the Superior Court of Justice in Toronto on July 13, 2000, for two counts of first-degree murder, contrary to s. 229 of the Criminal Code, R.S.C. 1985, c. C-46. The appellant, Carol Cronton Edwards, was convicted of killing two teenage girls, Isha Cleverdon and Cheri Doucette, in the early morning of April 4, 1998. He was sentenced to life imprisonment on July 13, 2000.

2The Crown's case was based on a substantial body of circumstantial evidence that placed the appellant at the scene of the crime at a time proximate to when the victims were killed. At trial, the Crown also established that the victims were in the [page139] appellant's company prior to being killed and that the appellant had engaged in sexual contact with at least one of the victims.

3The appellant conceded that he was at the scene of the crime, that he had contact with both girls, and that he had oral sex with one of them. The defence theory, however, was that while the appellant was with the victims, they were set upon by one or more assailants who killed the girls. DNA evidence was introduced at trial to support the theory that other males may have had sexual contact with the victims close to the times of their deaths. There was also evidence that suggested that at least two knives could have been used to inflict the victims' wounds. At trial, the appellant testified that he suffered from post-traumatic stress disorder and amnesia as a result of the incident and claimed that he had no memory of the events in question.

4Generally, this appeal raises the following three issues:

(1) Whether the trial judge erred by failing to caution the jury that it would be improper to use disbelief of the appellant's claim of amnesia as circumstantial evidence of guilt;

(2) Whether the trial judge erred with respect to the use of protected statements as defined by s. 672.21 of the Criminal Code; and

(3) whether the trial judge erred by failing to instruct the jury not to rely on third party opinions of the appellant's truthfulness when assessing his credibility at trial.

Facts

The Crown's evidence

5According to the Crown's evidence, Cleverdon and Doucette telephoned Kayla McAlmont to tell her to meet them at Eddie Emily's residence on the evening of April 3, 1998. Although Cleverdon called Emily's home at 11:43 p.m. to say that they would arrive within 30 minutes, Cleverdon and Doucette never arrived at Emily's residence. Cleverdon's 11:43 p.m. phone call was made from the appellant's cell phone.

6Cleverdon's and Doucette's bodies were found the next morning at 9 a.m. in an industrial area of Toronto with slashed throats and a number of stab wounds. Blood spatters and other evidence suggested that there had been a struggle, and that Doucette and Cleverdon had tried to escape in different directions before death. The blood trails indicated that Doucette ran west, away from the appellant's car, while Cleverdon ran north. Evidence seized from the crime scene included sliced clothing of the [page140] two victims and two knives. One of the knives had a broken blade and was bloody. This knife, which was later identified as a "Cobra" knife, did not have a serrated blade and was the same brand of knife as those found in the appellant's home. The second rusted knife was not believed to have been used in the killings. There were no fingerprints on either knife.

7Videotape evidence from a security camera mounted above a garage door in the area showed that the appellant's vehicle entered the parking lot of the scene of the crime at approximately 11:55 p.m. on April 3, 1998. At 12:25 a.m., the appellant was shown on the videotape running in full stride from an easterly to westerly direction. Approximately 40 seconds after the appellant's first appearance on the videotape, the videotape again showed the appellant running, this time in the opposite direction across the screen. The Crown suggested that these depictions of the appellant showed him running first from Cleverdon's position (north), to Doucette's position (west), and then running east from Doucette's location back towards his car. Finally, the videotape showed the appellant leaving the scene in his car two minutes later. The videotape did not show the appellant committing the crimes, nor were the victims seen on the videotape.

8The videotape also showed another vehicle entering the area nine minutes before the appellant arrived. This second unidentified vehicle circled the area twice. It left before the appellant's vehicle arrived.

9Dr. Rose, a forensic psychologist, examined the bodies of the victims on April 5, 1998. According to Rose, the cause of Doucette's death was a large wound to her neck that extended into the right jugular vein. This wound was most likely caused by someone facing the victim. In addition to this fatal injury, Doucette had another smaller wound to her neck; a laceration to her scalp; abrasions to her torso, left arm and both legs; and defensive wounds to her left hand. Cleverdon's body also revealed severe wounds to the neck, including an unusual "hole" injury to her jugular vein. Cleverdon had a total of nineteen wounds, which included four stab wounds to her body, six stab wounds to her back, and defensive wounds to her right arm and right hand.

10Rose testified that Cleverdon's wounds appeared to have been caused by a knife with a smooth edge. In cross- examination, Rose agreed that while a wound to Doucette's neck and a wound to Cleverdon's arm could have been inflicted by a serrated knife, a smooth-edged blade could have also left the same markings. In addition, Rose acknowledged that it was possible that two different knives were used to inflict the injuries. [page141]

11Detective Davis first contacted the appellant on April 5, 1998 via telephone. During that initial conversation, the appellant told the officer that he had been in his residence most of the previous night. In response to Davis' indication that he wished to meet with the appellant to talk to him about an "incident" that occurred "the other night", the appellant agreed to meet.

12Following this conversation, the police obtained a search warrant for the appellant's vehicle and residence. During the execution of the search warrant, the police seized an off-white canvas top, a pair of canvas pants, a black leather jacket, dress shoes, boots, a knife block, a set of "Cobra" kitchen knives, the appellant's cell phone, and the appellant's vehicle. Small blood smears and droplets were found on the inside and outside of the vehicle. The appellant was arrested for the murders on the same day, and a DNA profile of the appellant was generated.

13Brenda Burton, a forensic evidence specialist qualified in the examination of "trace materials", examined some of the evidence for the Crown. Burton found that one piece of glass from the appellant's boots shared the same refractive index as glass found near Cleverdon's body. She also testified that the refractive index of the latter type of glass is fairly common.

14Gavin Edmonstone, a forensic chemist, testified for the Crown concerning the Cobra knife. Edmonstone stated that it was not possible to express an opinion as to whether the knife found at the crime scene came from the same set of knives found in the appellant's home.

15Johanne Almer, a forensic biologist, testified with respect to hair and trace fibres. She stated that three body hair fragments were found on a swab taken from Doucette's vagina. The first fragment had similar characteristics to Cleverdon's pubic hair. The second hair fragment did not have similar characteristics to either victim's hair. The third hair fragment was also unlike either victim's hair and DNA analysis indicated that it came from either a black man or woman.

16Dr. Cecilia Hagemen was called by the Crown as an expert witness in the areas of DNA analysis, blood fluid identification and bloodstain pattern identification. Her investigation indicated that the blood on the blade and handle of the Cobra knife, and on the interior and exterior of the appellant's car, had DNA that matched both victims. The DNA on a marijuana cigarette found in the appellant's car ashtray also matched the DNA of both Doucette and the appellant. However, the DNA from Cleverdon's vaginal swabs revealed a mixture of Cleverdon's DNA, as well as DNA from two other unknown sources, at least one of which was a male. Similarly, DNA found on Doucette's vaginal swabs also [page142] contained DNA from a male who was not the appellant. Finally, oral swabs taken from Doucette were found to contain DNA that matched the appellant's DNA. Hagemen was of the opinion that semen found in the vagina remain intact for approximately two to seven days, while semen in the mouth would be present for only one day.

The defence evidence

17The defence called Dr. David DiCecco to testify about the impact of a serious work-related accident suffered by the appellant in October 1996. This accident split open the appellant's skull. As a result, the appellant became depressed, had recurrent thoughts about the accident and experienced dreams that involved people chasing him with a knife and attacking him. DiCecco also noted that a report prepared by a doctor at a head injury clinic suggested that the appellant was developing post-traumatic stress disorder.

18The appellant testified in his own defence. At the time of the trial, the appellant was 35 years old with no criminal record. He had immigrated to Canada from Jamaica, his place of birth. As a result of his work-related accident, the appellant was unable to return to work and suffered from permanent head damage. At the time of the offences, the appellant was living with his mother.

19According to the appellant, he woke up on April 3, 1998 with a headache that plagued him throughout the day. That night, the appellant went to his sister's residence at about 6:00 p.m., and left for home at approximately 8:00 or 9:00 p.m. The appellant confirmed that on that night he wore the white suit and black leather jacket that were later seized by the police. The last thing the appellant remembered of the evening was his mother telling him that she was going to bed. The appellant did not recall leaving his home, and indicated that he must have "blacked out" for the rest of the evening. This blackout started sometime between 9:00 and 10:00 p.m. and continued through to the next morning.

20The appellant testified that he had "blacked out" on several previous occasions. In October 1997, for example, he blacked out while driving his vehicle on the highway, and ultimately drove into a ditch. He testified that he reported that incident to DiCecco, but DiCecco was unable to confirm the report.

21The appellant testified that when he woke up on April 4, 1998, he thought that he had been in an accident during the night. He had urinated in his clothing and there was a spot on his shirt that looked like ejaculate or nasal discharge. For the rest of [page143] the day, the appellant stayed home and attempted to wash out the stains in his clothing. He also discovered that the $600 that he normally kept in the glove compartment of his car was missing. He had no recollection of where the money went.

22The appellant confirmed that he received a telephone call from a police officer on April 5, 1998. He testified that the officer told him that he was investigating a possible hit and run accident and questioned the appellant about his cell phone. The appellant confirmed the type of vehicle that he drove. He also told the officer that he was free to come and look at his vehicle. After an audiotaped statement of the conversation between the officer and the appellant was played at trial, the appellant admitted that the officer had not asked him about a car accident. The appellant also admitted that when the officer asked to come over and talk about an "incident" that happened "the other night", he had indicated that he knew what the officer was talking about.

23The appellant also acknowledged during his testimony that he falsely told the officer that on the afternoon of April 4 he had been out at a radio station doing an interview. The appellant explained this inconsistency by saying that he had made a number of stupid statements to the officer as a result of being in a "dazed situation".

24In addition to the appellant and DiCecco, the defence also called Dr. James Perper, a psychiatrist and a forensic pathologist and crime scene analyst. Although not trained formally in forensic psychiatry, Perper was prepared to testify that the appellant did not fit the profile of someone who would have committed the offences. The trial judge allowed Perper to testify except with respect to issues of forensic psychiatry.

25Perper testified that although he could not rule out that there may have been only one killer, his review of the material suggested that it was likely that there was more than one perpetrator of the crimes. Based on the types of injuries sustained by the victims, Perper also suggested that it was very likely that a second serrated knife was used in the killings. In addition, Perper testified as to his belief that the appellant was not the perpetrator given the small amount of blood detected on his clothing. In Perper's opinion, had the appellant been responsible for killing one or both of the victims, considerably more blood would have been present on his clothing. Finally, based on his review of the security videotape from the crime scene, Perper concluded that the vehicle that had exhibited "searching behaviour", by circling the parking lot twice before the appellant arrived at the parking lot, could have been present at about the same time that the appellant was at the crime scene. [page144]

26In addition to these witnesses, the defence called several witnesses at trial who testified concerning the appellant's good character.

Statements made while under court-ordered assessment

27The court ordered an assessment under s. 672.11 of the Criminal Code to determine whether the appellant could be exempted from criminal responsibility as a result of mental disorder. The appellant was assessed by Dr. Bradford at the Royal Ottawa Hospital between June 3, 1999 and August 3, 1999. Bradford concluded that the appellant was not suffering from a mental disorder that would render him not criminally responsible.

28While he was undergoing assessment, the appellant made various statements with respect to the events of April 3, 1998. Initially, he gave the doctors a detailed account of his movements on the night of April 3. In a later interview with Bradford, however, the appellant claimed to have a "blank in his memory" from the time he left his sister's home to the time he woke up the next morning. The appellant explained his inconsistent statements by saying that when he first arrived at the hospital, he tried to make sense of what happened on the night in question by accounting for the time gaps based on his ordinary routine. These statements were introduced as defence evidence at trial, and Crown counsel cross-examined the appellant extensively on them.

29In particular, Crown counsel cross-examined the appellant on a series of interviews conducted at the hospital. During several of the interviews, the appellant provided detailed accounts of his movements on the night of the homicides that were inconsistent with his assertion that he did not remember what occurred. No voir dire was held at trial to determine the extent of the cross-examination that would be permitted on the appellant's statements; nor was a voir dire conducted to determine the voluntariness of the statements. Counsel for the appellant did not object to the Crown's questions on the statements during cross-examination. In his closing address, Crown counsel invited the jury to conclude that the appellant had lied to the staff and doctors at the hospital in order to conceal his involvement in the murders.

30Bradford was called at trial as a defence expert in forensic psychiatry. He testified that the appellant tested with memory problems and confirmed that a CT scan of the appellant's brain suggested possible brain dysfunction. However, Bradford also noted that an MRI test did not support the CT scan results; that the appellant's test scores suggested that he was faking memory problems; that there was evidence of symptom magnification; and that the appellant's story was inconsistent with the evidence. [page145]

31Bradford also acknowledged that the appellant might have suffered from post-traumatic stress disorder, a condition that could lead to memory blackouts if the appellant experienced circumstances beyond the realm of normal human experience. According to Bradford, however, such memory blackouts would normally occur immediately before and after the traumatic events at issue. In contrast, lengthier blackouts, such as the one the appellant described, are rare.

32During cross-examination of Bradford, the Crown proved the appellant's prior inconsistent statements by reviewing with Bradford the interviews that he and another doctor had conducted with the appellant while at the hospital.

Analysis

Issue #1: The appellant's claim of amnesia

33The first issue on this appeal concerns the inferences that may be drawn when a trier of fact disbelieves an exculpatory statement made by the accused. In such circumstances, it is proper for a trier of fact to infer that the accused's statement is false. However, unless there is evidence of fabrication, it is improper for a trier of fact to infer from disbelief of the accused's statement that the accused is guilty. As this court stated in R. v. Blazeiko (2000), 2000 14726 (ON CA), 48 O.R. (3d) 652, 145 C.C.C. (3d) 557 (C.A.) at para. 7"[a] false explanation, even a deliberately false explanation, cannot, without extrinsic evidence of concoction or fabrication, provide circumstantial evidence of an accused's guilt."

34In R. v. O'Connor (2002), 2002 3540 (ON CA), 62 O.R. (3d) 263, 170 C.C.C. (3d) 365 (C.A.) at paras. 19-21, O'Connor A.C.J.O. explained why a trier of fact may only make a finding of fabrication on the basis of evidence that is independent from the evidence that contradicts or discredits the accused's exculpatory statement:

The distinction between mere disbelief and a finding of fabrication has regard to the fundamental principle that the onus of proof remains on the Crown throughout a criminal trial and helps ensure that the trier of fact properly applies the burden of proof in cases where statements of an accused are tendered or an accused testifies. The distinction reduces the risk that a trier of fact may blur the need for the Crown to prove the offence charged beyond a reasonable doubt with the failure of the accused to provide a credible defence. The distinction also recognizes the danger that a trier of fact may attach undue weight to the rejection of an accused's explanation and may move too readily from mere disbelief to a finding of guilt. As was pointed out by Gibbs J. in Steinberg v. Com'r of Taxation (Cwth.) (1975), 134 C.L.R. 640 (Aus. H.C.) at p. 695, cited in R. v. Tessier (1997), 1997 3475 (BC CA), 113 C.C.C. (3d) 538 (B.C.C.A.) at p. 553: "The fact that a witness [even the accused] is disbelieved does not pr ove the opposite of what he asserted." [page146]

In [R. v. Coutts (1998), 1998 4212 (ON CA), 126 C.C.C. (3d) 545 (Ont. C.A.)], Doherty J.A. explained the rationale underlying the rule as follows at pp. 551-52:

If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused's version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown's obligation to prove an accused's guilt beyond a reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused's version of events.

[References omitted]

Despite the fact that in many cases an inference of fabrication will flow logically from disbelief of an accused's statement, the policy underlying the distinction between disbelief and the finding of fabrication militates against using disbelief to infer fabrication. The courts have, therefore, attached the requirement that a finding of fabrication must be founded on evidence that is independent from the evidence which contradicts or discredits the accused's version of events: R. v. Hibbert [(2002), 2002 SCC 39, 163 C.C.C. (3d) 129 (S.C.C.)] at p. 15; R. v. Coutts, supra, at p. 552; and R. v. Tessier, supra, at p. 556.

35The appellant's argument on the first issue is based on the following comments made by Crown counsel in his closing address to the jury:

The position of the Crown in this case really comes down to this: If you are satisfied beyond a reasonable doubt that the accused is lying when he tells you that he does not remember the events surrounding the death of Isha Cleverdon and Cheri Doucette, if you are satisfied that he's lying about that, then you can be sure that the reason he is lying about that is to hide his involvement in the deaths of these two young women. In addressing this central issue you should examine all of the evidence in the case.

When you consider the linchpin of the defence in this case, remember if you will, that it's not just grounded in the proposition that I was a victim and therefore I don't remember, or more correctly, I don't remember so I must have been a victim. When you consider this matter in the light of all the evidence in this case, please bear in mind that it -- in addition to everything else, the accused's amnesia, which is supposed to, on my friend's theory, amount to disassociation, this amnesia that he tells you, that it goes back beyond a triggering event and is said to encompass the very unusual circumstance of retrograde amnesia. And not only that, but his victimization on this scene at 355 and 375 Champagne Drive, his victimization is said to encompass the rare situation of a bisexual rapist. As I say, members of the jury, if you are satisfied that Mr. Edwards lied to you about not remembering what happened, then you can be sure -- you can be sure that he does so in order to conceal his involvement[c

1].

(Emphasis added) [page147]

36The appellant submits that in the two italicized comments, the Crown instructed the jurors that if they were satisfied that the appellant was lying about his amnesia, then it was appropriate to infer that he was guilty of the murders. The trial judge did not refer to the impugned statements in his charge to the jury; nor did he explain to the jury that it would be improper to use disbelief of the appellant's claim of amnesia as circumstantial evidence of guilt. The appellant submits that the trial judge's failure to correct the alleged instruction in the Crown's address to the jury amounts to a reversible error.

37The Crown argues that the impugned comments did not amount to an instruction to the jurors that if they disbelieved the appellant's claim of amnesia such disbelief could be used as circumstantial evidence of guilt. We agree. Read in context, in our view it is clear that the jurors would not have understood that they could use the "amnesia lie" as a separate piece of circumstantial evidence of guilt.

38We begin by considering the language of the two impugned comments. On their face, the words used by the Crown do not purport to instruct the jurors on how they might use the appellant's evidence of amnesia if they found it to be false. Furthermore, defence counsel, Crown counsel and the trial judge all explicitly told the jurors that they should take their instructions on the law from the trial judge. In the defence's address to the jury, defence counsel told the jurors that: "You are the judges of fact. His Honour is the judge of law. You must take your law from him." In the Crown's address to the jury, Crown counsel told the jurors that: "His Honour, and only His Honour, will give you the law that applies to this case." In the charge to the jury, the trial judge explained that:

At the outset, it is important that I make two points clear and you have heard these several times. Firstly, I am the sole judge of the law. That means you are to accept from me any statement of what the law is and be guided by the directions I give you when you consider your verdict.

39Next, we consider the context in which the impugned statements were made. The appellant's motive for making prior inconsistent statements concerning his memory of the night of April 3, 1998 was discussed in both addresses to the jury. Defence counsel addressed the jury first and offered explanations for the statements made by the appellant in a telephone conversation with Detective Davis on April 5, 1998 and the statements made by the appellant to the doctors at the Royal Ottawa Hospital.

40He told the jury that the appellant invented "a normal day" in his conversation with Detective Davis on April 5, 1998 because the appellant believed that if he told Detective Davis [page148] that he had amnesia, he would be arrested and would lose his driver's licence.

41Defence counsel also told the jury that the appellant did not tell Bradford and the other doctors about his amnesia when he first arrived at Royal Ottawa Hospital because he was insulted by the manner in which he was initially treated at the hospital. The appellant told the doctors about his amnesia once "Dr. Bradford stopped treating him like a criminal and started treating him like a patient."

42In addition, defence counsel attempted to explain that the appellant had not reported a previous blackout in October 1997, during which he purportedly lost control of his car, on the basis that he was afraid he would be uninsurable and unable to continue to drive.

43Crown counsel responded, arguing that the proffered explanations were not credible and suggesting that the reason that the appellant lied in his prior statements about the events of April 3 was in order to conceal his involvement in the deaths of Doucette and Cleverdon.

44In relation to the statements to the doctors, Crown counsel said this:

Now, Mr. Edwards would have you believe that when he woke up the morning of Saturday, April the 4th to find this goo on his lapel, he saw only specs of blood in that area and urine on his pants. . . . And how come nobody at the Royal Ottawa Hospital heard about the goo on his lapel or the urine on his pants until long after he had left there, until long after he had given up the idea of insisting he wasn't at the scene and turned to the idea of not remembering? Does it sound to you like the idea of amnesia and the idea of urinating on himself and the idea of being ejaculated upon came together in an attempt to provide himself with a defence? Yet not one word at the Royal Ottawa Hospital other than the amnesia. . . .

Mr. Carter [defence counsel] tries to excuse his [the appellant's] lying to the medical doctors at the Royal Ottawa Hospital because he was offended. He was offended by their approach to him. Give me a break. Give me a break. He fakes test after test, even though he told you he was trying to co- operate with the testing. And how come when he finally comes to trust them, as he tells you, he leaves out the most important thing -- the goo?

(Emphasis added)

45In relation to the alleged prior blackout, Crown counsel posed this question in his address to the jury:

And why didn't Edwards tell his trusted doctor, Dr. DiCecco, about that accident if indeed he did black out driving a car? He said in his testimony before you that it wasn't because he thought someone would take his licence away and yet this morning, this morning his counsel tried to give you that reason. Is this being made up as it goes along?

(Emphasis added) [page149]

46It is apparent that the impugned comments were made in the context of a dispute between counsel over the appellant's motive for lying in prior statements. In his comments, Crown counsel invited the jurors to disbelieve the appellant's statements on amnesia and offered a reason for disbelief. We conclude that the jurors could not reasonably have understood the impugned comments to mean that, if they were satisfied that the appellant was lying about his amnesia, they could infer that he was guilty of the murders.

47There was no danger that the jurors would use their disbelief of the appellant's evidence that he could not remember as evidence of his guilt in isolation and convict him. We note here that the trial judge explicitly gave an instruction along the lines of R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397. He told them:

First, if you believe the evidence of Mr. Edwards obviously you must acquit him; second, if you do not believe the evidence of Mr. Edwards but you are left in reasonable doubt by it, you must acquit; and third, even if you are not left in reasonable doubt by the evidence of Mr. Edwards you must ask yourself whether on the basis of the evidence that you do accept you are convinced beyond a reasonable doubt by that evidence of the guilt of Mr. Edwards.

48In coming to our conclusion, we note also that defence counsel did not object to the charge to the jury nor did defence counsel request that the trial judge instruct the jurors not to infer the appellant's guilt from their disbelief of his evidence. The failure by defence counsel to request such an instruction is significant in the context of this case because, in pre-charge discussions, the trial judge and counsel explicitly discussed the merits of including an instruction on "consciousness of guilt" in the charge to the jury. The following exchange between the trial judge and counsel took place during the pre-charge discussions:

THE COURT: All right. What else, then, would counsel be interested in putting forward as part of the charge? Consciousness of guilt on the false statements, Mr. Armstrong? Post-defence conduct, sorry, I'm using a dated and improper term.

MR. ARMSTRONG [Crown counsel]: I'm not sure that -- I leave that in Your Honour's hands. I recognize the difficulty that courts often have with the concept and --

THE COURT: Thank you.

MR. ARMSTRONG: -- therefore, I invite you only to deal with it in the safest possible manner.

THE COURT: And it seems to me that in that regard, the safest possible manner, is to let the evidence speak for itself. The charge ought to be D.W. or W.D. in all its clarity [see R. v. W. (D.), supra].

MR. ARMSTRONG: Well, I better review --

THE COURT: That is simply, Mr. Armstrong, it's if you believe Mr. Edwards you acquit. You don't believe Mr. Edwards but you are left in reasonable [page150] doubt you acquit. You are not left in reasonable doubt but you still have to look for all the evidence that's proffered by the Crown in order to find it beyond a reasonable doubt. That's it. It's three paragraphs.

MR. ARMSTRONG: Put that way I agree.

THE COURT: Mr. Carter?

MR. CARTER [defence counsel]: My friend would like to canvass some issues tonight and perhaps speak to Your Honour with better information tomorrow with respect to some of these potential issues.

MS. JOHANNESSON-GRUZUK [defence counsel]: Maybe a little bit on consciousness of guilt and I have a case on lack of motive . . . .

THE COURT: Well, I'll hear it. I have a tough time with it. You get into the whole issue, for example, the issue of the post-defence conduct and it starts getting really -- it's always a preference of mine not to deal with that issue, post-defence conduct. You start talking about it and the Crown's entitled to have, in my view at least, if they find that Mr. Edwards' comments to both Dr. Bradford and other doctors at the hospital and to Detective Davis are fabrications, that's post-defence conduct, that they may consider. But my sense right now is I prefer not to do that and I'm content that -- and I'm pleased Mr. Armstrong took the position that he did. I'll deal with that.

(Emphasis added)

49The following day, as the pre-charge discussions continued, defence counsel did not request an instruction on the use that could be made of evidence contradicting or discrediting the appellant's exculpatory statements. Defence counsel, however, did draw the trial judge's attention to R. v. Coutts (1998), 1998 4212 (ON CA), 40 O.R. (3d) 198, 126 C.C.C. (3d) 545 (C.A.). That case stands for the proposition that the instruction that an accused person's statement is concocted and therefore capable of constituting circumstantial evidence should only be given where there is some evidence of actual concoction.

50Although it appears that the trial judge was of the view that he would be justified in instructing the jurors that it was open to them to make a finding of fabrication, Crown counsel did not request such an instruction and the trial judge did not give one. The record suggests that defence counsel did not request an instruction concerning the proper evidentiary basis for a finding of fabrication because a charge that contained such an instruction would have been less favourable to the appellant than the charge that was given. The discussion to which we have referred and defence counsel's lack of objection in the circumstances reinforces our conclusion that the first ground of appeal should be rejected. [page151]

51Having thus concluded, it is unnecessary to consider the Crown's alternative argument, namely, that if the Crown's comments amounted to an invitation to infer guilt if the appellant was lying, the jury was entitled to consider the appellant's statements as circumstantial evidence of his guilt because there was sufficient independent evidence of fabrication. The Crown's alternative submission, however, does have a bearing on the appellant's second ground of appeal, which we address next.

Issue #2: Protected statements under s. 672.21

52As part of the second ground of appeal, the appellant submits that the trial judge erred in not instructing the jury on the limited use that could be made of the appellant's statements to Bradford. The thrust of the appellant's submission is that if his statements made at the hospital were admissible, the trial judge was obliged to tell the jury that it could only use the statements to assess the appellant's credibility and that the statements could not be used as evidence of the appellant's culpability.

53Section 672.21 of the Criminal Code provides that:

672.21(1) In this section"protected statement" means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person's direction.

(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.

(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of

(a) determining whether the accused is unfit to stand trial;

(b) making a disposition or placement decision respecting the accused;

(c) finding whether the accused is a dangerous mentally disordered accused under section 672.65;

(d) determining whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child;

(e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict; [page152]

(f) challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously; or

(g) establishing the perjury of an accused who is charged with perjury in respect of a statement made in any proceeding.

54The statements made by an accused while on a court- ordered assessment are deemed to be "protected" statements by operation of s. 672.21 of the Criminal Code. The objects of the provisions are to provide a degree of confidentiality to an accused ordered to undergo a psychiatric assessment and to respect the search for the truth: R. v. G. (B.), 1999 690 (SCC), [1999] 2 S.C.R. 475, 135 C.C.C. (3d) 303, at paras. 36-39. In accordance with these objects, s. 672.21(2) deems inadmissible any statements made by an accused to the persons conducting the assessment, unless the accused consents to the admission of the statements or the statements are tendered for a purpose enumerated in s. 672.21(3).

55The appellant submits that the trial judge erred in allowing the Crown to cross-examine him on "protected" statements that he made to medical personnel and staff without first holding a voir dire concerning their voluntariness and to determine if the appellant's evidence was inconsistent in a material particular as contemplated under subpara. (f) of s. 672.21(3).

56We cannot agree with the appellant's submissions. The appellant himself placed his statements before the jury both through his own evidence and the evidence of Bradford. By doing this, the appellant therefore consented to their admission and waived the protection provided by s. 672.21.

57Furthermore, it was not necessary to hold a voir dire in this case to determine if the statements were voluntary. The appellant never suggested that his statements were made involuntarily. Rather, he explained his earlier inconsistent statements by saying they were "made up" to fill in the gaps in his memory. This explanation suggested that the appellant, in fact, had made the inconsistent statements freely during the assessment.

58The appellant's testimony also made it unnecessary to hold a voir dire to determine whether the statements were inconsistent in a material particular. By the appellant's own admission, the statements were inconsistent. The fact that the appellant admitted they were inconsistent does not remove the inconsistency.

59Finally, because the defence chose to introduce the statements made by the appellant while he was in the hospital, we do not find it necessary to rule on the issue of whether the confessions rule applies directly to a psychiatric assessment ordered under s. 672.11 and whether a psychiatrist is a person in authority in [page153] this case. We note here that in G. (B.), supra, at para. 46, the Supreme Court of Canada left open the question of whether a doctor performing a court- ordered assessment was a person in authority such that the confessions rule applied. G. (B.), supra, does not decide this issue and leaves the question open for consideration in a future appropriate case.

60The appellant's submission that the statements could only be used as prior inconsistent statements by the jury and that the trial judge had to instruct the jury accordingly also fails. Having placed the statements in evidence himself, the limited admissibility permitted by s. 672.21(3)(f) to challenge the appellant's credibility no longer applied. Because the Crown must be allowed to ensure that the jury received a balanced view of the evidence, once the appellant placed the statements in evidence it was not open to him to pick and choose what portions to disclose to the jury. Indeed, once Bradford gave evidence on behalf of the appellant, it was necessary that the Crown have access to the evidentiary foundation for Bradford's opinion and the appellant's utterances, so that it could test Bradford's opinion. See by analogy R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290, 173 D.L.R. (4th) 66, at paras. 98-99.

61This brings us to the question of the use the jury could make of the statements. If there was independent evidence that the statements were fabricated, the statements could be considered as evidence of the appellant's culpability, in the particular circumstances of this case.

62As the passage from O'Connor, supra, cited above demonstrates, the concern is that the jury will find that a false statement has been fabricated simply because the false statement is disbelieved. Therefore, there must be evidence "that is independent from the evidence which contradicts or discredits the accused's version of events" (para. 21 O'Connor). As stated in R. v. Pollock, 2004 16082 (ON CA), [2004] O.J. No. 2652, 187 C.C.C. (3d) 213 (C.A.) by Rosenberg J.A., at para. 155"[t]here is no requirement, however, that the evidence of fabrication must itself be independently confirmed or independently proved."

63In Pollock, the appellant was charged with murder. Pollock's girlfriend gave evidence that he told her to tell anyone who asked, that he was with her at home throughout the evening watching a movie. Rosenberg J.A. held at para. 155 that"[t]hat evidence did not require independent confirmation to constitute evidence of an attempt to fabricate an alibi and thus consciousness of guilt".

64Similarly, in R. v. Trochym (2004), 2004 1262 (ON CA), 71 O.R. (3d) 611, [2004] O.J. No. 2850 (C.A.), the Crown alleged that the appellant [page154] returned to the deceased's apartment approximately 12 hours after murdering her to "stage" the scene of the crime to make it look like the victim had been sexually assaulted. The Crown led evidence from three witnesses who testified that they saw the appellant in the apartment building before 3:00 p.m. on the day after the murder. In response, the appellant contended that he was at his job at Canada Post during this time and had only gone to the apartment building later that afternoon. He produced records that showed he was logged onto his computer at work during this time and called a security guard for Canada Post who testified that he saw the appellant at work at 4:00 p.m. that day. Defence counsel contended that the Crown's closing address contained inappropriate speculation about the evidence concerning the appellant's activities because the Crown suggested that the appellant had returned to the deceased's apartment "under cover of work" on the afternoon following the murder "hoping to have an alibi" for his activities in the apartment. This court upheld the admissibility of the evidence of the Crown's witnesses as circumstantial evidence relating to post offence conduct that the jury was free to accept or reject.

65So too, in this case, the evidence of Bradford that the appellant initially told the professionals at the hospital that he was home all evening on the night of the murder, could be considered by the jury as evidence of fabrication by him and as post offence conduct. This evidence was independent from the substantial body of evidence that placed the appellant at the scene of the crime and independent from the appellant's evidence that he was unable to recall what happened on the Friday night of the murder until he awoke Saturday morning.

66Insofar as fabrication is concerned, this was not a case where the trial judge was required to instruct the jury that mere disbelief that the accused had not been home all evening on the night of the murder could not be used as circumstantial evidence of his guilt. The issue was not whether the appellant's earlier statements were fabricated; the issue was the appellant's motivation in making the statements. At the end of the appellant's stay at the hospital, he told Bradford that he had no memory of what occurred between Friday night and Saturday morning, and that he had tried to fill in the gaps in his memory by talking about what he usually did on Friday nights. The trial judge fully and fairly put the appellant's explanation to the jury in his charge, and the jury was entitled to consider the appellant's statements that he was at home on the night of the murder, together with his explanation that he was suffering from amnesia, in deciding whether the appellant was guilty of murder. If the jury rejec ted the appellant's explanation, it was entitled to consider his [page155] admittedly fabricated statement as an item of post offence circumstantial evidence, along with all the other evidence, to determine whether the Crown had proven that the appellant committed the murders.

67Accordingly, for the reasons given, we conclude that the appellant's second ground of appeal fails.

Issue #3: Third party opinions of the appellant's truthfulness

68The final issue on this appeal also arises from comments made by Crown counsel during his closing address to the jury and from the trial judge's instructions in respect of those comments.

69As we have previously indicated, while undergoing assessment at the Royal Ottawa Hospital, the appellant was interviewed and tested by Bradford and other health care professionals. Given the defence claim that the appellant suffered from post-traumatic stress disorder, which allegedly gave rise to retrograde or dissociative amnesia, the Crown cross-examined Bradford at trial on whether there was evidence of unreliability and malingering when the appellant was assessed.

70During his closing address to the jury, Crown counsel referred to the evidence concerning the appellant's assessment. He stated:

Is it really so that with Carol Edwards what you see is what you get? Is that what Dr. Bradford really said? Certainly the doctors trusted by Dr. Bradford to complete the testing did not think so. Dr. Koranyi, the specialist in neuropsychiatry, professor emeritus, concluded that Mr. Edwards was probably malingering. Dr. Michelle Gagnon, the neuropsychologist reported gross faking of the malingered memory test. She also said that the measures of symptom magnification revealed a high probability of exaggeration. You don't probably have to be a psychologist to conclude that Mr. Edwards operates well above the borderline or impaired levels suggested by the tests that Mr. -- or that Dr. Gagnon conducted.

Dr. Firestone, professor of psychology at the University of Ottawa reported that Mr. Edwards may have been attempting to mislead on the M.M.P.I. The results have to be interpreted with caution, that his emotional responses are likely to be over-controlled and that periodic angry outbursts may occur. Dr. Firestone suggested that Mr. Edwards might be viewed as attempting to avoid responsibility and/or being manipulative through the expression of his physical symptoms.

Dr. Bradford himself says he discounted the psychotic symptoms that Mr. Edwards was endorsing as being untrue. Dr. Bradford concluded that Mr. Edwards is at the very least unreliable and so is the information that is forthcoming in the history that he gives. And I guess the only thing really baffling to an experienced psychiatrist like Dr. Bradford would be why this man would persistently deny the obvious. Because when he said he was baffled in his report of August the 21st, and even though at that point, Edwards had turned to not remembering, that was not -- that was not one of the three possibilities Dr. Bradford considered as being possible.

(Emphasis added) [page156]

71Subsequently, towards the end of his closing address, Crown counsel returned to the subject of the assessment of the appellant at the Royal Ottawa Hospital, saying:

The accused put his character into issue by calling evidence from persons who told you about his reputation in the community for honesty and peacefulness. You should give that evidence very careful consideration. But you should weigh it in the light of all of the evidence which you have heard including that from the Royal Ottawa Hospital about the lies and deceptions that he carried out there and also of course the evidence regarding personality.

(Emphasis added)

72The appellant submits that, by these comments, Crown counsel invited impermissible reasoning by the jury in two respects: (i) the first quoted statements by Crown counsel indicated that the jury could rely on the opinions of third party experts (concerning the appellant's truthfulness) in determining the credibility of the appellant at trial; and (ii) the second quoted statements by Crown counsel were an effort by the Crown to rebut the defence evidence of the appellant's good character by inviting the jury to use the same third party opinions to assess the appellant's credibility.

73The appellant further argues that, as a result of these allegedly improper statements by Crown counsel, it was incumbent on the trial judge to provide the jury with a caution regarding the permissible uses of the third party opinion evidence and that his non-direction on this issue constitutes reversible error.

74In addition, the appellant contends that the prejudicial effect of this error was compounded by the trial judge in his charge to the jury when he summarized the Crown's position without commenting upon it unfavourably, in this fashion:

Regarding Mr. Edwards' truthfulness, [Crown counsel] submits that you should consider seriously the views of other professionals at the Ottawa Hospital. Recall, he says, that he was variously described as faking, misleading or untruthful and that he appeared to be a malingerer. Also, he says the assessments of Mr. Edwards' assessments shows that he does not have the proper symptoms of advanced forms of memory loss.

75We would not give effect to the appellant's submissions for the following reasons.

Crown's closing address

76Bradford was a defence witness. He was called on behalf of the appellant to provide evidence that the appellant suffered from post-traumatic stress disorder that led to amnesia. In his testimony, Bradford described the results of the various tests and interviews of the appellant that suggested that the appellant was [page157] unreliable and malingering. As counsel for the appellant candidly acknowledged before this court, it was clearly open to Crown counsel to cross-examine Bradford on the results of the appellant's assessment and on the basis for Bradford's opinion concerning the appellant's asserted illness, including on the question of whether the assessment provided evidence of unreliability and malingering by the appellant. It was also open to Crown counsel to refer in his closing address to Bradford's evidence concerning the nature and the results of the tests and interviews as relied upon by him in formulating his opinion concerning the appellant's mental health.

77Bradford and the other doctors whose tests he relied upon expressed no opinions concerning the appellant's general credibility, or his truthfulness or reliability outside the parameters of the tests conducted at the Royal Ottawa Hospital. The initial statements by Crown counsel in his closing address concerning these opinions, which we have set out above, simply recited the conclusions of the assessors in respect of the appellant's claim of mental illness triggering amnesia, based on the tests and interviews of the appellant that formed part of his assessment. These statements by Crown counsel did not invite the jury to rely on the doctors' opinions for its ultimate conclusion as to the credibility or truthfulness of the appellant. Accordingly, they required no correcting instruction by the trial judge: see R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, 85 C.C.C. (3d) 193.

78In any event, the jurors were instructed by the trial judge that it was for them alone to determine the credibility of a witness based on the evidence at trial together with their experience and common sense. They were also told by the trial judge that it was up to them to decide how much weight should be given to an expert opinion and that they were free to reject the testimony of any of the expert witnesses. In the face of these instructions, there is no basis upon which to suggest that the jury was misled into simply relying on the opinions of experts concerning the credibility of the appellant.

79We also do not agree that a cautionary instruction to the jury was required because of Crown counsel's subsequent statement in his closing address that the jurors should consider "all of the evidence which [they] heard including that from the Royal Ottawa Hospital" when assessing the appellant's good character evidence. During the course of his charge to the jury, the trial judge addressed the good character evidence given by the appellant and his witnesses. He instructed the jury:

Now, you will recall that five different people gave evidence in this trial and testified that Mr. Edwards is a person who had a good reputation for honesty [page158] and morality in the neighbourhood where he was known at the time of the commission of the offences. This evidence was introduced so that you might infer that Mr. Edwards is not the type of person who would likely have committed the offences of murder. If the testimony of these witnesses raises a reasonable doubt in your minds that he committed the offences you would then find him not guilty. It is for you to decide how much weight you will give to this evidence of good character. You should consider this evidence along with all of the other evidence when you decide whether the Crown has proved its case beyond a reasonable doubt.

Because Mr. Edwards gave evidence, you may also use his testimony of his good character to assess his credibility or truthfulness as a witness. In this regard, you should consider the possibility that a person of good character is more likely to tell the truth. Again, however, this is simply evidence you should consider when you decide what facts have been proved. The final decision is yours.

(Emphasis added)

80This instruction was favourable to the appellant. It correctly indicated that the jurors should consider all the evidence at trial when determining whether the Crown's case had been made out and in assessing the appellant's credibility as a witness. It also emphasized that "the final decision" was that of the jury. In light of this instruction, it is our view that the jurors would not have been misled into substituting the opinion of the Royal Ottawa Hospital doctors concerning the appellant's truthfulness for their own assessment of the evidence adduced by the appellant.

81We also observe that it is telling, although not dispositive of this ground of appeal, that defence counsel at trial did not object to those parts of Crown counsel's closing address that are now challenged on this appeal.

Trial judge's impugned statement

82Finally, we also reject the appellant's assertion that the trial judge's instruction with respect to the Crown's position on the opinions of the experts from the Royal Ottawa Hospital heightened the possibility that the jurors would rely on the experts' opinions to control their assessment of the appellant's truthfulness at trial.

83The challenged passage from the jury charge, quoted above, formed part of a lengthier summary by the trial judge of the Crown's position at trial. It must be considered in the context of the following comments by the trial judge:

[Crown counsel] says that the evidence proves beyond a reasonable doubt that Mr. Edwards is lying to cover up his guilt. He says that you should consider the following:

[Crown counsel] submits that Mr. Edwards attempted to and believed he had washed all the blood out of his pants. DNA, he says, testing indicated [page159] otherwise. The fact that there was blood under the dashboard of his car proves that there was blood on his pants and it can't be true when he says he awoke and found only urine on them.

Furthermore, you should find that his amnesia only arises after the evidence mounts against him. That is very telling that he never told anyone at the hospital about finding what [Crown counsel] described as goo on his jacket. That the only evidence that the goo he says he found on his jacket was sperm comes from Mr. Edwards and he should not be believed.

In the end, [Crown counsel] asserts that there is simply no note of truth to the amnesia assertion by Mr. Edwards. [Crown counsel] says that further evidence that Mr. Edwards is fabricating his amnesia is connected with the pride he takes in his car. Don't believe, he says, that Mr. Edwards would wake up to find his pants stained with urine and clean up his mother's sofa but not check his car for similar stains.

[Crown counsel] submits that you should not believe there was not blood on Mr. Edwards' hands. He says there was blood in many places in and about his car and there had to be blood on his hands and he adds if Mr. Edwards, seen running in the surveillance video, was concerned for and looking out for the welfare of the two young women, why would he not simply use his cell phone and call 911?

84Thereafter, the trial judge stated:

Regarding Mr. Edwards' truthfulness, [Crown counsel] submits that you should consider seriously the views of other professionals at the Ottawa Hospital. Recall, he says, that he was variously described as faking, misleading or untruthful and that he appeared to some as a malingerer. Also, he says the assessments of Mr. Edwards' assessment shows that he does not have the proper symptoms of advanced forms of memory loss.

(Emphasis added)

85When read in this context, it is clear that the impugned statement by the trial judge did not relate to the general assessment of the appellant's credibility. Rather, it concerned the Crown's position on whether the appellant was fabricating his claim of amnesia. In the paragraphs from the jury charge that precede the paragraph challenged by the appellant, the trial judge expressly refers on three occasions to the Crown's theory that the appellant's amnesia claim was fabricated. In addition, in the concluding sentence of the challenged paragraph of the charge, the trial judge again expressly refers to "advanced forms of memory loss", that is, to amnesia.

86In our view, in summarizing the Crown's position on this issue, the trial judge did not exhort or reiterate an invitation to the jurors to rely on the opinions of third parties in assessing the appellant's overall credibility. To the contrary, the quoted passages from the trial judge's charge focused the jurors' attention on the nature of the Crown's theory regarding the appellant's claim that he could not remember the events in question because [page160] he suffered from a memory-impairing illness. It was neither inappropriate nor an error for the trial judge to do so.

Disposition

87Accordingly, for the reasons given, we reject the appellant's grounds of appeal from his convictions. The appeal is dismissed.