Her Majesty the Queen v. Snow [Indexed as: R. v. Snow]
73 O.R. (3d) 40
[2004] O.J. No. 4309
Court of Appeal for Ontario,
Doherty, Goudge and Sharpe JJ.A.
October 26, 2004
Criminal law -- Evidence -- Similar fact evidence -- Accused convicted of murdering couple after husband surprised accused who was squatting at couple's rural property -- Trial judge not erring in admitting evidence tending to show that accused had broken in and taken up residence in other rural properties prior to murders and evidence of abductions and sexual assaults of women in British Columbia shortly following murders -- Much of that evidence being admissible as part of narrative that directly linked accused to murders -- Evidence of accused's descent into criminality in weeks before and after murders demonstrating existence of behavioural characteristics that significantly narrowed likelihood that anyone but accused murdered victims -- Appeal from conviction dismissed.
Criminal law -- Trial -- Conduct of trial judge -- Defence counsel bringing application for mistrial on basis of alleged out-of-court contacts between trial judge and jury -- Trial judge erring in dismissing [page41] application summarily rather than conducting proper judicial inquiry and giving defence counsel opportunity to make submissions -- Where inappropriate jury contact is so serious that it destroys appearance of justice and fairness, no inquiry into whether accused suffered actual prejudice being required -- Where inappropriate jury contact is not so egregious as to undermine appearance of trial fairness, inquiry into prejudice being necessary -- Contact in this case falling into second category -- Accused suffering no prejudice from jury contact or from trial judge's conduct and inquiry into allegations -- Accused's appeal from conviction for first degree murder dismissed.
Criminal law -- Trial -- Improper interference by trial judge -- Accused alleging trial judge improperly curtailing cross- examination, making derogatory remarks about defence counsel and interrupting his opening and closing addresses -- Defence counsel frequently ignoring rulings -- Many interventions by trial judge appropriate as clarifying evidence or preventing introduction of inadmissible evidence -- Trial judge entitled to manage the trial and control procedures but preferable if does not rise to bait from difficult counsel -- Opening and closing address introducing extraneous matters and closing by defence counsel amounting to all-out attack on judge -- Defence counsel's conduct inviting interruption of addresses -- Trial judge repeatedly instructing jury that difficult relationship with defence counsel irrelevant to their deliberations -- Appeal from conviction dismissed.
Criminal law -- Evidence -- Production of third party records -- accused charged with murder -- While awaiting trial accused allegedly made incriminating statements to fellow inmate, M -- Accused seeking M's records from provincial and federal custodial institutions -- Trial judge did not err in ordering production only of provincial records -- M having no contact with accused while M in federal institution and accused's request for federal records based on pure speculation.
Criminal law -- Evidence -- Hearsay evidence -- Accused seeking admission of statement from witness who died prior to trial -- Statement not taken under oath -- Statement not videotaped and witness not advised of need to tell truth and possible sanctions for failing to do so -- Witness allegedly saw truck parked at deceased's farm property but uncertain regarding date -- Trial judge holding accused establishing necessity but not satisfied about reliability of statement and refusing to admit statement -- No basis to interfere with discretionary decision regarding admission of hearsay evidence -- Appeal from conviction dismissed.
The accused was charged with first degree murder in the death of a married couple. The Crown alleged that the male victim surprised the accused at the couple's farm, where the accused had been squatting, and then the accused lured the female victim to the farm, forced the male victim to drive him to Toronto, murdered the victims and left their bodies in the trunk of the female victim's car outside their Toronto residence. The female victim appeared to have been hog-tied and dragged while in that state, and might have been sexually assaulted. Handwritten pages on military themes, written in the distinctive form of small block printing used by the accused, were found at refuse sites near the victim's farm. The Crown adduced evidence that the accused had left similar writings at other nearby rural properties where he had broken in and taken up [page42] residence in the weeks preceding the murders and that he had stolen firearms from a neighbouring farm. The Crown also led evidence that the accused had abducted another couple from their cottage several weeks before the murder, robbed them and forced them at gunpoint to drive him to Toronto. The day after the murders, the accused purchased a train ticket for Vancouver in Toronto. In British Columbia, the accused committed a series of unlawful confinements and sexual assaults over a span of 12 days. Those crimes involved the use of stolen guns, hog-tying, robbery and sexual assault of the female victim. At the moment of his arrest, he was strangling the last of his victims.
The Crown also led evidence of a statement made by the accused following his arrest to a fellow prisoner, M, who had a lengthy and serious criminal record. The accused told M that he had murdered an elderly couple and that he had raped and strangled the woman and smothered the man by placing a bag over his head. The accused was convicted. He appealed, submitting that the trial judge interfered unduly in the presentation of the case and unfairly curtailed the cross-examination of Crown witnesses, that the trial judge had out-of-court contact with the jury that breached his right to a fair trial, and that he failed to deal appropriately with a motion for a mistrial on that ground. He also argued that the trial judge erred by admitting similar fact evidence, by refusing to require the production of certain prison records of M, and by refusing to admit an out-of-court statement from a deceased witness.
Held, the appeal should be dismissed.
The trial judge's interventions during defence counsel's cross-examination of witnesses did not curtail the accused's right to a fair trial or reveal a reasonable apprehension of bias. The trial judge was entitled to curtail questions by defence counsel that were irrelevant, prolix and repetitive, and to intervene to cut off editorializing and argumentative questions and to ensure that there was a good faith basis for putting certain questions. Defence counsel frequently refused to abide by rulings and this understandably provoked further interventions from the trial judge. The trial judge's interruptions during defence counsel's opening and closing addresses were practically invited by defence counsel, who attempted to introduce irrelevant matters in his opening address and who engaged in an all-out attack on the trial judge in his closing address. However, the trial judge erred in summarily disposing of defence counsel's application for a mistrial on the basis of the trial judge's alleged out-of-court contact with the jury. If established in fact, the trial judge's out-of-court contact with the jury would be sufficient to create a danger that the fairness of the trial was compromised. Where there are allegations of improper contact with the jury during the course of a criminal trial, the trial judge is required to conduct a proper inquiry to determine whether the fairness of the trial has been compromised. The inquiry is part of the trial and the accused must be present. The defence should have been given a reasonable opportunity to call evidence and make submissions. The trial judge's failure to conduct a proper judicial inquiry amounted to an error of law.
The case law has divided problems arising from inappropriate jury contact into two broad categories. The first category includes contact that is so serious that it destroys the appearance of justice and fairness of the trial. In cases falling within this first category, there is no need to inquire into whether the accused suffered actual prejudice. The second category includes cases of jury contact that is inappropriate, but not so egregious as to undermine the appearance of trial fairness. In these cases it is necessary to inquire whether the accused suffered prejudice as a result of the contact. This case fell into the second category. In the [page43] course of a lengthy trial, it is almost inevitable that there will be some innocent out-of-court contact between the trial judge and the jury. In a long trial, trial judges need to develop and maintain a certain rapport with the jury. This rapport should be developed in the courtroom, but there are bound to be occasions when the judge and jury find themselves in close proximity in the corridor. A few friendly words from the judge to keep up the jury's morale are natural and acceptable. Moreover, virtually all of the cases finding an impairment of the appearance of fairness sufficient to give rise to a miscarriage of justice have involved improper contact during the jury's deliberations. Here, the complaint related to contact during the trial itself.
Nor did the accused suffer any prejudice from the fact that the trial judge failed to conduct a proper inquiry. First, it was abundantly clear from the remarks he made when dismissing the motion for a mistrial how the trial judge would have decided any inquiry on the basis of the evidence that was before him. Second, the accused insisted on having the mistrial application heard one week after it was presented. The trial judge required that it be heard immediately and only dismissed the application after defence counsel refused to proceed. The trial judge was entitled to refuse to allow the accused's serious allegations to cloud the trial for as long as a week. On the basis of the record, which the accused had not attempted to supplement on appeal, there was no basis to interfere with the trial judge's summary determination that nothing improper occurred and that the mistrial application should be dismissed.
While the trial judge may have made sarcastic and demeaning remarks about defence counsel to the jury, there was a great deal of animosity between the trial judge and defence counsel during the trial, and the trial judge's opinion of defence counsel and the way in which he was conducting the case would have been apparent to the jury from what had transpired in the courtroom. The trial judge gave a strong mid-trial direction cautioning the jury not to be influenced by the difficulties he was having with defence counsel. This strong warning provided a complete answer to the accused's concern that he suffered prejudice because the trial judge had curried favour with the jury.
In response to a request by defence counsel for M's complete prison records, the trial judge ordered disclosure of M's provincial correctional records but refused to order disclosure of the federal prison records, holding that those records were not probative to a material issue at trial. M had no contact with the accused in a federal institution. The trial judge did not err in refusing to order production of the federal records as the request was based on pure speculation.
The trial judge refused to admit into evidence a statement made to a police officer by a witness who died before the trial. The witness allegedly saw a truck at the deceaseds' farm in late March or early April. (They were last seen alive on April 7.) The statement was not taped, no oath was administered and the witness was not warned as to the potential sanctions for an untruthful statement. The trial judge ruled that although the accused has satisfied the necessity requirement, he failed to show that there were sufficient guarantees of its reliability. The trial judge did not err in ruling that the statement should not be admitted under the R. v. B. (K.G.) exception to the hearsay rule.
The trial judge did not err in admitting similar fact evidence which tended to show that the accused had broken in and taken up residence in other rural or cottage properties prior to the murders and similar fact evidence of abductions and sexual assaults of women in British Columbia shortly following the murders. Much of the evidence was admissible as part of the narrative that directly linked [page44] the accused to the murders, including items that were stolen from the deceased. Guns stolen from one of the Ontario break-ins was used in the sexual assaults in British Columbia and likely during the abductions and murders for which he was being tried. To the extent that the evidence did not form part of the narrative, the evidence of the accused's extraordinary descent into criminality in the weeks before and after the murders was nevertheless admissible as it demonstrated the existence of behavioural characteristics that significantly narrowed the likelihood that anyone but the accused committed the murders. The similar fact evidence indicated a distinctive pattern of conduct that so closely paralleled the behaviour of the victims' murderer that it was not likely the product of chance or coincidence. Finally, the trial judge gave a strong limiting instruction respecting the use of the similar fact evidence.
APPEAL from a conviction for first degree murder returned by a jury at a trial presided over by Ewaschuk J. of the Superior Court of Justice dated July 17, 1997.
Cases referred to Arizona v. Fulminante, 499 U.S. 279 (Supreme Ct. 1991); Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, 201 Nfld. & P.E.I.R. 1, 267 N.R. 386, 605 A.P.R. 1; R. v. Afghanzada, [2000] O.J. No. 4425, 149 C.C.C. (3d) 349 (C.A.); R. v. Arsenault (1956), 115 C.C.C. 400 (N.B.C.A.); R. v. B. (K.G.), [1993] 1 S.C.R. 740, 148 N.R. 241, 79 C.C.C. (3d) 257, 19 C.R. (4th) 1; R. v. Cameron (1991), 2 O.R. (3d) 633, 44 O.A.C. 278, 64 C.C.C. (3d) 96 (C.A.); R. v. Carpenter (No. 2) (1982), 142 D.L.R. (3d) 237, 1 C.C.C. (3d) 149, 31 C.R. (3d) 261 (Ont. C.A.); R. v. D. (G.N.), [1993] O.J. No. 722, 81 C.C.C. (3d) 65 (C.A.); R. v. Dietrich, [1970] 3 O.R. 725, 1 C.C.C. (2d) 49 (C.A.); R. v. Felderhof (2003), 68 O.R. (3d) 481, 235 D.L.R. (4th) 131, 180 C.C.C. (3d) 498, 17 C.R. (6th) 20, [2003] O.J. No. 4819 (C.A.); R. v. Friesen, [1964] 3 C.C.C. 54, 44 D.L.R. (2d) 274 (B.C.C.A.); R. v. G. (A.), 2000 SCC 17 [2000] 1 S.C.R. 439, 184 D.L.R. (4th) 238, 252 N.R. 272, 143 C.C.C. (3d) 46, 32 C.R. (5th) 45, affg 1998 7189 (ON CA), [1998] O.J. No. 4031, 130 C.C.C. (3d) 30, 21 C.R. (5th) 149 (C.A.) (sub nom. R. v. A.G.); R. v. Gilson, [1965] 2 O.R. 505, [1965] 4 C.C.C. 61 (C.A.); R. v. Gumbly (1996), 1996 NSCA 213, 155 N.S.R. (2d) 117, 457 A.P.R. 117, 112 C.C.C. (3d) 61 (C.A.); R. v. Hertrich, Stewart and Skinner (1982), 137 D.L.R. (3d) 400, 67 C.C.C. (2d) 510 (Ont. C.A.); R. v. Horne (1987), 1987 ABCA 108, 35 C.C.C. (3d) 427, 78 A.R. 144 (C.A.); R. v. Labelle (1981), 63 C.C.C. (2d) 403 (Ont. C.A.); R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, 235 D.L.R. (4th) 244, 316 N.R. 52, 115 C.R.R. (2d) 172, 180 C.C.C. (3d) 476, 17 C.R. (6th) 1, [2004] S.C.J. No. 8; R. v. Masuda (1953), 106 C.C.C. 122, 17 C.R. 44 (B.C.C.A.); R. v. O'Connor, [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, 33 C.R.R. (2d) 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1 (sub no . R. v. O'Connor (No. 2)); R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1; R. v. Valley, [1986] O.J. No. 77, 13 O.A.C. 89, 26 C.C.C. (3d) 207 (C.A.); Rushen v. Spain, 464 U.S. 114 (Supreme Ct. 1983)
Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(a)(iii)
Sheldon Goldberg, for appellant. Carol Brewer and Alexander Alvaro, for respondent. [page45]
BY THE COURT: --
OVERVIEW
1David Alexander Snow appeals his conviction for first degree murder in the deaths of Ian and Nancy Blackburn.
2The Blackburns lived in Toronto and also owned a 50-acre farm in Caledon, Ontario. They were last seen alive on April 7, 1992. Their bodies were found on April 13, 1992 in the trunk of Mrs. Blackburn's car, parked at their Toronto home. Autopsies showed death from strangulation and suffocation and that both had been bound. Mrs. Blackburn was wearing no clothes and appeared to have been hog-tied and dragged while in that state. She might have been sexually assaulted. Mr. Blackburn was fully clothed. Both had apparently been robbed as no banknotes were found in Mr. Blackburn's wallet or in Mrs. Blackburn's purse.
3The Crown's theory was that on April 7, 1992, Mr. Blackburn drove from his Toronto real estate office to his Caledon farm where he encountered the appellant who had taken up residence there after breaking in a few days earlier. The Crown alleged that the appellant lured Mrs. Blackburn to the farm, forced Mr. Blackburn to drive him to Toronto, murdered the Blackburns and left their bodies in the trunk of Mrs. Blackburn's car.
4The Crown presented a strong case identifying the appellant as the Blackburns' killer. Among the significant elements of the Crown's case pointing to the appellant as the Blackburns' killer are the following:
-- A tissue found in Mrs. Blackburn's car was stained with the appellant's blood.
-- There was strong evidence to show that the appellant had been at or near the Blackburns' farm property at around the time of the murders. Handwritten pages on military themes, written in the highly distinctive form of small block printing used by the appellant, were found at refuse sites near the Blackburn property. The appellant left similar writings at other nearby rural properties where he had broken in and taken up residence in the days or weeks preceding the Blackburn murders.
-- At one refuse site near the Blackburn property, the police found items stolen from the Neilson farm located nearby. Guns stolen from the Neilson home were found to have been in the appellant's possession either when he was captured or shortly before his capture. [page46]
-- The appellant was also in possession of Mr. Blackburn's cameras and camera equipment that was likely taken from their Toronto home.
-- On April 8, the day after the murders, the appellant purchased a train ticket for Vancouver proving his presence in Toronto the day after the murders. The train ticket provided evidence of opportunity as well as evidence of flight.
-- After his arrest, the appellant confessed to a fellow prisoner that he had sexually assaulted and strangled a woman in Ontario, and that he had smothered her husband by placing a bag over his head.
The appellant did not testify.
5The appellant raises a number of issues on appeal. Those issues fall into two broad areas. The first area concerns the conduct of the trial judge. The appellant submits that the trial judge interfered unduly in the presentation of the case and unfairly curtailed the cross-examination of Crown witnesses. The appellant argues that the trial judge had out- of-court contact with the jury that breached his right to a fair trial and failed to deal appropriately with a motion for a mistrial on this ground. The second area relates to several evidentiary rulings at trial. The appellant submits that the trial judge erred (a) by admitting similar fact evidence, (b) by refusing to require the production of certain prison records of an informant and (c) by refusing to admit an out-of-court statement from a deceased witness.
6For the reasons that follow, we dismiss the appeal.
FACTS
7On April 7, 1992, Ian Blackburn travelled from Toronto to his Caledon farm to check out a problem with the plumbing. He had not been to the farm for three weeks. Neither Ian nor Nancy Blackburn was seen alive after April 7.
8On April 8, an O.P.P. police officer, curious about the Blackburn farm property, saw [Mr.] Blackburn's maroon Cadillac in the driveway with a can of German beer sitting on the front fender on the driver's side. The car was locked. She knocked on the farmhouse door three times but there was no answer. The Osbornes, neighbours at the Caledon farm, saw Mr. Blackburn's Cadillac parked in the driveway on April 10. It was not where he normally parked his car. The Blackburns had been invited to a party at the Osborne's on April 12. They did not appear. The Osbornes entered the Blackburn farmhouse. It was cold inside and [page47] a number of items were out of place. Concerned friends also entered the Blackburns' Toronto residence. The cat appeared upset and had been left with no food or water. There was an accumulation of flyers and newspapers on the veranda and mail in the mailbox going back to April 7. On April 13, the Blackburns' bodies were found in the trunk of Mrs. Blackburn's car parked in the driveway of the Toronto residence.
9Post-mortem examination did not determine a precise time of death but was consistent with the Blackburns having died on April 7 or 8. The cause of Mrs. Blackburn's death was strangulation. She had suffered a number of injuries occurring before death, including blunt force injuries. Ligature marks and other injuries suggested that she had been hog-tied, carried and moved, striking hard objects. Mr. Blackburn died of asphyxia. There were signs of manual pressure on the neck. The pathologist could not rule out that a bag might have been placed over Mr. Blackburn's head. There were ligature marks consistent with him having been bound but left sufficiently mobile in order to operate a motor vehicle. Blunt force injuries to his face, neck and under his chin were consistent with having been caused by the muzzle or barrel of a gun.
10A civilian witness found a bloodstained tissue in Mrs. Blackburn's car at the time the bodies were discovered. The DNA profile of the blood matched that of the appellant.
11The appellant was an antiques dealer who operated an antiques store in various locations in Orangeville, Ontario and travelled around acquiring antiques to sell to collectors. He was also involved in the reconstruction of old buildings. In July or August 1990, the appellant and his business partner noticed the distinctive barn on the Blackburn property and met with the Blackburns to discuss the possibility of purchasing the barn for the purpose of moving it but the deal never materialized.
12The appellant disappeared in September 1991 after his business deteriorated. The Crown alleged that at this point he descended into a state of lawlessness that spiralled down to break-ins, abductions, murders and sexual assaults.
13The police investigation revealed evidence that someone had been living in the Blackburns' farmhouse, primarily in the main floor bedroom. Items of garbage left around the farmhouse (tea packages and crumpled tissues) were linked to the other cottages alleged to have been entered by the appellant. Feces were found at one of the refuse sites wrapped in pages of the December 27, 1991 edition of the Toronto Star. A copy of that same newspaper missing those pages was found in the Blackburns' farmhouse. A hair, consistent with that of the appellant, was also found at [page48] one of the refuse sites. There was evidence that the appellant was in the habit of writing on military themes using a distinctive form of small block printing in columns. Police investigators found pages containing such writings at refuse sites near the Blackburn property.
14The Crown adduced evidence of break-ins at three other cottages in which the appellant was alleged to have lived during the winter of 1991-92. In each cottage, the police found pages with handwriting in the distinctive form of small block printing in columns used by the appellant together with other items leading to a strong inference that the person who broke into and lived in the cottages was the same person who broke into and lived in the Blackburn Caledon farmhouse.
15The Crown led evidence that the appellant abducted Mr. and Mrs. Appelton from their cottage on March 18, 1992. The appellant had taken up residence in the cottage and confronted Mr. Appelton when he entered the cottage. The appellant robbed both Mr. and Mrs. Appelton and forced them at gunpoint to drive him to Toronto.
16The Crown also led evidence that the appellant broke into the Neilson farm located about a mile and a half from the Blackburn farm. Items stolen from the Neilson farm were found at refuse sites near the Blackburn residence and at a campsite in British Columbia [where] the appellant confined and sexually assaulted L.R. following his flight from Ontario. The appellant had guns stolen from the Neilson farm when he was arrested and other guns also stolen from Neilson were linked to other confinements and sexual assaults committed by the appellant in British Columbia.
17The Crown led evidence that on April 8, the appellant purchased a Via Rail "Canrail" pass and that he left Toronto for Vancouver using that pass on April 9. In British Columbia, the appellant committed a series of confinements and sexual assaults over a span of 12 days. These crimes involved the use of the guns stolen from the Neilson farm, hog-tying, robbery and sexual assault of the female victims consisting of fellatio, digital penetration and fondling, attempted vaginal and anal intercourse with an inability to maintain an erection or ejaculate. At the moment of his arrest, the appellant was strangling the last of his victims who almost certainly would have died but for the intervention of the police.
18The Crown also led evidence of a statement made by the appellant following his arrest to F.M. at the Vancouver Pretrial Detention Centre. F.M. had a lengthy and serious criminal record. The appellant told F.M. that the police were trying to pin [page49] two murders on him but that they were not smart enough to get him. However, he told F.M. that he had murdered an older couple for antiques or for money; that he had raped and strangled the woman, and that he had smothered the man by placing a bag over his head. He told F.M. that watching a person's expression when they were being choked turned him on. He also told F.M. that he had put the bodies in the trunk of a car. F.M. denied receiving any favour from the authorities for giving evidence of the appellant's statement. He admitted that he had previously given the police a statement implicating two prisoners in the murder of a third prisoner, and that as a result he had been beaten and labelled a "rat".
19The appellant did not testify, but the defence called a number of witnesses in an effort to establish that other people and vehicles may have been at or around the Blackburn farmhouse in April 1992, and that someone other [than] the appellant had the opportunity to commit the murders.
ANALYSIS
1. Conduct of the Trial
20The appellant makes a number of complaints with regard to the conduct of the trial judge. The appellant submits that the trial judge exhibited bias favouring the Crown to the appellant's prejudice and denied the appellant's right to a fair trial. In particular, the appellant submits that:
(a) the trial judge interfered unduly with the cross- examination of witnesses;
(b) the trial judge improperly interrupted and interfered with the defence opening and closing addresses;
(c) the trial judge met with the jury outside the courtroom and in the absence of the appellant and further, erred by denying counsel the right to make submissions on a motion for a mistrial on this issue.
21This was a long, complex trial, involving detailed circumstantial evidence and a large number of exhibits. The defence put the Crown to strict proof of every detail. The trial judge played an active role in the proceedings. An unfortunately acrimonious relationship between the trial judge and defence counsel developed. Many of the trial judge's interventions and comments could hardly be described as models of judicial decorum. However, after reviewing the interventions complained of, we are not persuaded [page50] that the trial judge crossed the line and interfered to such an extent as to deny the appellant his right to a fair trial.
(a) Examination of witnesses
22Many of the interventions complained of by the appellant were entirely innocuous and appropriate. The trial judge frequently interjected during examination-in-chief and cross- examination of witnesses to clarify ambiguous questions and ensure that he and the jury understood the evidence. Many of his interventions were to ascertain the relevance of evidence and to ensure that inadmissible evidence was not adduced.
23It is apparent from the transcript that the trial judge at times became very frustrated with what he regarded as the truculent and obstreperous conduct of defence counsel, an assessment that certainly could not be described as ill- founded. Some of the trial judge's comments could only be described as insulting and demeaning. While one can appreciate the trial judge's annoyance with defence counsel's conduct, it would have been preferable had he not risen to the bait. However annoying or irritating counsel may become, the trial judge at all times should control proceedings with judicious demeanour.
24On the other hand, a trial judge is certainly entitled to control the proceedings and to intervene when counsel fail to follow the rules or abide by rulings. A trial judge is not a mere observer who must sit by passively allowing counsel to conduct the proceedings in any manner they choose. It is well recognized that a trial judge is entitled to manage the trial and control the procedure to ensure that the trial is effective, efficient and fair to both sides: see R. v. Felderhof (2003), 68 O.R. (3d) 481, 180 C.C.C. (3d) 498 (C.A.) at paras. 36-47, 53; R. v. Valley, [1986] O.J. No. 77, 26 C.C.C. (3d) 207 (C.A.) at pp. 230-32 C.C.C.; R. v. G. (A.), [1998] O.J. No. 4031, 130 C.C.C. (3d) 30 (C.A.) at paras. 41-54. We agree with the submission of the Crown that when viewed in the context of the proceedings as a whole, the trial judge did not cross "the difficult line between unnecessary, discourteous or erroneous interventions, and interventions that destroy the appearance of fairness": see R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, 180 C.C.C. (3d) 476, at paras. 44-52.
25We do not agree that the trial judge's numerous interventions during defence counsel's cross-examination of defence witnesses curtailed the appellant's right to a fair trial or revealed a reasonable apprehension of bias. The trial judge was entitled to curtail questions by defence counsel that were irrelevant, prolix and repetitive. The trial judge was also entitled to intervene to [page51] cut off editorializing and argumentative questions and to ensure that there was a good faith basis for putting certain questions. Defence counsel frequently refused to abide by rulings and this understandably provoked further interventions from the trial judge.
(b) Opening and closing addresses
26The appellant complains of the trial judge's interruptions during defence counsel's opening and closing addresses. Ordinarily, counsel will be permitted to make opening and closing addresses without interruption. Most trial judges are disinclined to interrupt opening or especially closing addresses to the jury. The tendency, perhaps, is to cut counsel considerable slack. However, whatever the usual practice, it remains that a trial judge is entitled to intervene once counsel crosses the accepted limits of what is permitted.
27In his opening address, defence counsel more or less invited interruption from the trial judge. He attempted to introduce an extraneous matter into the trial by insisting upon referring to the proceedings of the Morin Inquiry, a topic the trial judge had already excluded. Furthermore, defence counsel dealt at length with the persons ineligible for participation on a jury pursuant to the Juries Act, another matter that had no bearing on the issues. Defence counsel also criticized the conduct of the trial judge and linked it to the length of the trial. These comments were improper and the trial judge did not err in intervening to correct or curtail them.
28When we come to the closing address, it is even more difficult to resist the inference that counsel was inviting a rebuke from the trial judge. Counsel engaged in what basically amounted to an all-out attack on the trial judge and his conduct of the trial. Counsel insisted upon referring to matters that were not in evidence and deliberately flouted one the trial judge's ruling as the admissibility of certain evidence.
(c) Improper contact with the jury and mistrial application
29The complaint that gives us the most difficulty is the contention that the trial judge failed to deal appropriately with the allegation that he had engaged in improper contact with the jury outside the courtroom and in the absence of the appellant and defence counsel. Late in the trial, defence counsel presented to the trial judge a written application for a mistrial and for the extraordinary remedy of either prohibition or mandamus on the basis of alleged communications between the trial [page52] judge and the jurors. The application was supported by an affidavit from the appellant alleging that the trial judge regularly engaged in conversation with the jurors in the corridor behind the courtroom. We will return to this affidavit and its shortcomings below.
30When the application was presented, defence counsel indicated his intention to argue it in a week's time. The trial judge insisted that he proceed with the motion then and there. Defence counsel refused to do so and the trial judge ruled: "Then it's dismissed. It's insulting." When defence counsel pressed the point and suggested that the trial judge had not read the material, the trial judge stated that he had read it and repeated that he found it "insulting". The trial judge added: "Unless there's some evidence I have been talking to the jury about the facts of this case and directing them in some way, that's the only way you're entitled to a mistrial." The trial judge pointed out that an application for prohibition or mandamus was misconceived. When defence counsel stated that he was "very disturbed about the inability of counsel to make submissions", the trial judge replied: "When they're nonsensical, that's what happens."
31One week later, on July 2, 1997, defence counsel renewed the application, indicating his personal belief in the truth of the information contained in his client's affidavit. The trial judge stated that he had read the materials, found "just about everything in the affidavit . . . inaccurate" and dismissed the application out-of-hand.
32The appellant submits that the trial judge erred by failing to give him an opportunity to argue the mistrial motion and by failing to conduct a proper judicial inquiry into the trial judges's improper contact with the jury.
33The appellant's affidavit, filed in support of the mistrial application, was deficient in many respects. Several allegations were inadmissible hearsay (paras. 9, 30, 33, 42 and 43). Several paragraphs make allegations about what the judge said or what the jury heard that are speculative in nature (paras. 21, 28, 33, 35, 41). Many of the allegations concern communications between the trial judge and other persons not on the jury (17, 20, 26, 27, 28, 29, 31, 35, 36, 40, 41). Finally, the appellant deposed that at a certain point in the trial, he documented his observations by taking notes; yet, the version of his notes attached as an exhibit to the affidavit fails to support the substance of his allegations.
34However, when stripped of the allegations infected by these deficiencies and limited to the allegations based on the appellant's first-hand observations, there was admissible evidence of the following allegations: [page53]
(1) On many occasions, the trial judge chatted to the jury in the hallway during short breaks ranging from a few minutes to 15 minutes. The trial judge made no attempt to disguise or hide what he was doing and could be heard from within the courtroom. Nothing is revealed about what he said to the jury except one completely innocuous comment about the length of the lunch break.
(2) On several occasions, the trial judge stood outside the courtroom door discussing the case with the court staff in a loud voice. The trial judge made disparaging comments about defence counsel. Some of these comments were made immediately outside the door to the jury room. Others were made in the hallway where the jury might or might not have been able to overhear what the trial judge said.
(3) On two occasions, the appellant swears that he saw the trial judge in the jury room or at the door of the jury room speaking to the jurors. There is nothing in the affidavit regarding the content of those conversations.
35These allegations suggest that the trial judge had repeated contact with the jury outside the courtroom and that the jury was likely exposed to the trial judge's demeaning comments about defence counsel. If established in fact, the trial judge's out-of-court contact with the jury could be sufficient to create a danger that the fairness of the trial was compromised.
36Where there are allegations of improper contact with the jury during the course of a criminal trial, the trial judge is required to conduct a proper inquiry to determine whether the fairness of the trial has been compromised. The inquiry is part of the trial and the accused must be present: R. v. Hertrich, Stewart and Skinner (1982), 67 C.C.C. (2d) 510, 137 D.L.R. (3d) 400 (Ont. C.A.) at p. 540 C.C.C. per Martin J.A. An inquiry is required to deal with what the British Columbia Court of Appeal described in R. v. Masuda (1953), 106 C.C.C. 122, 17 C.R. 44 (B.C.C.A.) at p. 123 C.C.C., as the "taint of suspicion of prejudice to the fair trial of the accused". That taint must be dealt with and removed, either by a judicial determination that there is no merit to the allegations or by the declaration of a mistrial. As recently explained by Blair J. (ad hoc) in R. v. Afghanzada, [2000] O.J. No. 4425, 149 C.C.C. (3d) 349 (C.A.) at p. 355 C.C.C.:
Both the fact of a fair trial and the appearance of fair trial are essential to the administration of justice. In my view, the inquiry into the incident which was alleged to have occurred here was not adequate to remove that "taint of [page54] suspicion of prejudice to the fair trial of the accused" and thus the taint of prejudice to the public administration of justice.
37These cases involve allegations of improper contact between the jury and third parties, witness, court officials or counsel. Special problems arise where it is alleged that the trial judge is implicated in the impropriety. However, we see no reason not to apply the general rule that a proper inquiry into the allegations is required. The obvious difficulty of the trial judge inquiring into his own conduct is also encountered in other contexts, for example, on a motion for recusal of the [trial] judge on grounds of bias. A judge faced with such an allegation is to conduct an inquiry, setting out the applicable law, reviewing any evidence presented and applying the law to the facts in order to determine whether the allegations meet the necessary standard for recusal: see Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, 201 Nfld. & P.E.I.R. 1. Simply put, where there are allegations giving rise to a reasonable concern that the fairness of the trial might have been compromised, an inquiry is called for in order to clear the air. The accused should have been given a reasonable opportunity to call evidence and make submissions. An inquiry would have the advantage of establishing a clear factual record to clear the air and to permit meaningful appellate review.
38Here, the trial judge chose to dismiss the allegations summarily. His failure to conduct a proper judicial inquiry amounted to an error of law. The more difficult question is whether, in the circumstances of this case, that error amounted to a miscarriage of justice as defined by s. 686(1)(a)(iii) [Criminal Code, R.S.C. 1985, c. C-46] so as to entitle the appellant to a new trial.
39The case law has divided problems arising from inappropriate jury contact into two broad categories. The first category includes conduct that is so serious that it destroys the appearance of justice and fairness of the trial. In cases falling within this first category, there is no need to inquire into whether the accused suffered actual prejudice. As explained by Labrosse J.A. in the leading case, R. v. Cameron (1991), 2 O.R. (3d) 633, 64 C.C.C. (3d) 96 (C.A.), at p. 638 O.R., p. 102 C.C.C., where the allegations of interference with the jury "are so serious as to affect the administration of justice . . . the focus turns upon the justice system". Public confidence in the administration of justice "is equally shaken by the appearance as by the fact of an unfair trial". In Cameron, the sequestered jurors were taken to a local restaurant were they were joined by several unsworn [page55] constables and a uniformed police officer who was related to the victim. Labrosse J.A. concluded at p. 639 O.R., p. 103 C.C.C. that although no actual prejudice had been established, the appearance of unfairness was "incontrovertible" and a new trial was ordered. Similarly, in R. v. Masuda, supra, three police officers that had testified as Crown witnesses joined the jurors for dinner during the trial. The trial judge conducted an inquiry to determine whether any impropriety had occurred that would warrant a mistrial. The police officers and all the jurors swore that they had not discussed the case and the trial judge refused to grant a mistrial. The British Columbia Court of Appeal reversed and ordered a new trial. In an oft-quoted passage, Sloan C.J.B.C. stated at p. 124 C.C.C.: "[N]othing must occur during the trial of a case from which a suspicion may arise that any taint attaches to the proper and meticulous fairness which must always surround the administration of public justice."
40The second category includes cases of jury contact that is inappropriate, but not so egregious as to undermine the appearance of trial fairness. In these cases it is necessary to inquire whether the accused suffered prejudice as a result of the contact. For example, in R v. Labelle (1981), 63 C.C.C. (2d) 403 (Ont. C.A.), the foreman of the jury asked a constable a question regarding evidence at the trial. The constable, after consulting with the Crown, told the jury that the evidence had not been admitted. When the trial judge learned of this incident, he conducted an inquiry and examined the constable under oath. The trial judge allowed the juror to continue in his duties. On appeal, Martin J.A. held that the key question to be determined was whether or not there had been a miscarriage of justice. He concluded at p. 408 C.C.C. "that this irregularity did not result in a miscarriage of justice". Similarly, in R. v. Horne (1987), 1987 ABCA 108, 35 C.C.C. (3d) 427, 78 A.R. 144 (C.A.), the court ruled that the accused suffered no prejudice from a brief conversation in an elevator between three jurors and a key Crown witness. R. v. Gumbly (1996), 1996 NSCA 213, 112 C.C.C. (3d) 61, 155 N.S.R. (2d) 117 (C.A.), involved a conversation about the case, during the trial, between a juror and her husband. The court applied the "real danger" test, asking itself whether the facts showed that there was a real danger of bias on the part of the juror. The court emphasized at p. 82 C.C.C. that "any communications during the course of a trial, between a juror and any person, other than a member of the jury, respecting trial issues, are to be condemned." However, the court concluded that the information placed before it showed neither "incontrovertible" evidence of [page56] an appearance of unfairness, nor that the confidence of the public would be shaken. The appeal was dismissed. See also R. v. Gilson, [1965] 2 O.R. 505, [1965] 4 C.C.C. 61 (C.A.) and R. v. Arsenault (1956), 115 C.C.C. 400 (N.B.S.C.) for examples of improper jury contact found not to result in any miscarriage of justice requiring a new trial.
41These cases deal with interference with the jury by witnesses, counsel or third parties. We were not referred to any Canadian case involving allegations of impropriety by a trial judge. However, there is support in American cases for requiring a showing of prejudice where the error does not create fundamental unfairness: Arizona v. Fulminante, 499 U.S. 279 (1991). In Rushen v. Spain, 464 U.S. 114 (1983), a case involving a murder prosecution against an alleged member of the Black Panthers, the United States Supreme Court applied the doctrine of "harmless error" to an out-of-court communication between a juror and the trial judge. The juror revealed to the trial judge that her friend had been murdered by a Black Panther, but assured him that she could judge the case fairly. None of this information was revealed to counsel or to the appellant. The Supreme Court held that the error was harmless, and that the accused's rights had not been violated. In particular, the court held, at p. 118, that as the conversation between the juror and the trial judge did not involve facts or law at issue in the case, it was innocuous:
The Constitution "does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote." There is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. The lower federal courts' conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores these day-to-day realities of courtroom life and undermines society's interest in the administration of criminal justice.
(Citations omitted, emphasis added)
42For the reasons that follow, we conclude that the present case falls into the second category and that the nature of the contact between the trial judge and the jury was not so egregious as to undermine the fairness of the trial absent a showing of prejudice.
43The appellant's allegations relate to the conduct of a judge who cannot be equated with Crown counsel, the police, or some witness who is obviously adverse in interest to the accused. Trial judges should, of course, avoid out-of-court contact with jury [page57] members. On the other hand, in the course of a lengthy trial, it is almost inevitable that there will be some innocent out-of-court contact between the trial judge and the jury and this plainly will not undermine the fairness of the trial. As the British Columbia Court of Appeal stated in an analogous context in R. v. Friesen, [1964] 3 C.C.C. 54, 44 D.L.R. (2d) 274 (B.C.C.A.) at p. 62 C.C.C.: "casual meetings and social greetings between jurors in crowded corridors and courtrooms, while undesirable, are unavoidable, especially where these people are brought into close contact many times during a long trial."
44In a long trial, the trial judge needs to develop and maintain a certain rapport with the jury. The jury needs to be encouraged from time to time and it helps to make them aware that the judge, as the personification of the administration of justice, recognizes their sacrifice of time and appreciates their burden as individuals called upon to perform an onerous task. In our view, this rapport can and should be developed in the courtroom, but there are bound to be occasions when the judge and jury find themselves in close proximity in the corridor. A few friendly words from the judge to keep up the jury's morale are natural and acceptable.
45Another factor to consider is the timing of the inappropriate contact between the judge and the jury. Virtually all of the cases finding an impairment of the appearance of fairness sufficient to give rise to a miscarriage of justice have involved improper contact during the jury's deliberations. Here, the complaint relates to contact during the trial itself and this contact was followed, and in our view remedied, by the strong warning referred to below.
46Accordingly, we are of the view that, in the circumstances of this case, the contact between the trial judge and the jury was not so egregious as to undermine the fairness of the trial absent a showing of prejudice.
47The appellant submits that he suffered prejudice because of the unusual animosity between the trail judge and defence counsel. The appellant argues that the trial judge was obviously at odds with defence counsel and that the trial had degenerated into an unseemly battle between the two of them. Even if the trial judge merely engaged in friendly banter with the jury in the corridor, that banter was sprinkled with sarcastic and demeaning remarks about defence counsel. It is submitted that by ingratiating himself through out-of-court contact with the jury, the trial judge might have "won them over" to his side to the prejudice of the appellant, who would naturally be associated in the minds of the jurors with his counsel. [page58]
48We do not accept this submission. While there was an unfortunate level of animosity between the trial judge and defence counsel, the trial judge's opinion of defence counsel and the way in which he was conducting the case would have been apparent to the jury from what had transpired in the courtroom. We are not persuaded that even if the jury did hear similar out-of-court comments, the situation was made worse. Moreover, the trial judge recognized the need to caution the jury on his relationship with defence counsel and to impress upon the jury the importance of deciding the case solely on the basis of the evidence. The trial judge gave a strong mid-trial direction cautioning the jury not to be influenced by the difficulties he was having with defence counsel.
It is obvious that Mr. Goldberg and I have had differences of opinion on various matters during this trial. Mr. Goldberg is fearless and relentless in discharging his duty to defend his client. This is quite proper.
What I would like to remind you is the following: This case must be decided on a reasonable and objective assessment of the evidence. It must not be decided on the basis of the personalities of the judge or Crown or defence counsel. You have a sworn duty to render a true verdict based solely on the evidence. It would be most unfair and improper should you not decide the case solely on the evidence. You must put personalities aside.
49In his charge, the trial judge gave a strong warning to the same effect.
There have been obvious differences between Mr. Goldberg and me during this trial. Mr. Goldberg is a fearless and tireless advocate who left no stone unturned in defending his client. He was both exhaustive and exhausting in his tireless efforts to discover the truth of the case. However, at times it was evident that Mr. Goldberg and I did not agree on various matters. Mr. Goldberg did not like to be told that he erred in a particular situation and often continued before you to argue after the ruling or simply ignored it and persisted in his unswerving efforts to defend his client. He was discourteous and at times insolent and down right rude. In turn, at times I was less than courteous to Mr. Goldberg. For that I apologize.
The point to be made here is that Mr. Goldberg is not the accused David Snow. Mr. Snow has a constitutional right to a fair trial and in particular is entitled to an honest, reasoned and objective assessment of the evidence devoid of any bias you may harbour against his lawyer. I repeat that Mr. Snow is entitled to a fair trial in an unbiased evaluation on your part of the evidence. You must render a true verdict devoid of bias and prejudice and must put aside the personality of the accused's lawyer. Mr. Snow is not Mr. Goldberg and must be judged on a fair and objective assessment of the evidence and not on the basis of Mr. Goldberg's personality. That is an accused's constitutional right and you are duty-bound to afford him that right. [page59]
50In our view, these strong warnings provide a complete answer to the appellant's concern that he suffered prejudice because the trial judge had curried favour with the jury.
51Nor are we persuaded that the appellant suffered any prejudice from the fact that the trial judge failed to conduct a proper inquiry. First, it is abundantly clear from the remarks he made when dismissing the motion for a mistrial how the trial judge would have decided any inquiry on the basis of the evidence that was before him and that is now before us. The appellant made it clear at trial that he wanted the trial judge to conduct the inquiry. He did not resile from that position on appeal.
52Second, the appellant insisted on having the mistrial application heard one week after it was presented. The trial judge required that it be heard immediately and only dismissed the application after defence counsel refused to proceed. In our view, the trial judge was entitled to refuse to allow the appellant's serious allegations to cloud the trial for as long as a week. The appellant raised the point and, given the nature of the application, we can see no reason why he should not have been ready to proceed with it expeditiously. We would add, however, that had the appellant requested a reasonable delay to allow for proper preparation, it should have been granted.
53Third, the appellant has not attempted to supplement the record on appeal. We have already indicated the weaknesses in the appellant's affidavit. While the affidavit provided a sufficient basis to trigger an inquiry, certainly, it was far from compelling. Many of the appellant's allegations are based on observations he says he made from the dock in the courtroom. If that were the case, many others would have been aware of what was going on; yet, no objection was raised prior to the mistrial application and no other evidence was offered in support of the allegations. It is also noteworthy that the source given for three paragraphs (33, 42 [and] 43) was the defence counsel who was hardly reticent to complain about the trial judge's conduct; yet, he failed to object to these alleged improprieties at the time. It is significant that the appellant has not supplemented that record with any further evidence in this court. We are left with the trial record and all of its deficiencies. On the basis of that record, we see no basis to interfere with the trial judge's summary determination that nothing improper occurred and that the mistrial application should be dismissed.
54Accordingly, we would not give effect to this ground of appeal. [page60]
2. Evidence Rulings
(a) Disclosure of prison records
55The appellant sought the complete prison records of F.M., who testified that the appellant had confessed to him that the appellant had murdered two elderly people and left their bodies in the trunk of their car. Defence counsel wanted to know if F.M. had acted as an informer on other occasions. The trial judge ordered disclosure of F.M.'s provincial correctional records but refused to order disclosure of the federal prison records. In his full reasons for the ruling, the trial judge found that with respect to the federal prison records, the appellant failed to satisfy the first stage of the test mandated by R. v. O'Connor, [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1. The appellant was seeking no more than "a licence to fish within the federal records" and, in the view of the trial judge, those records were "not probative to a material issue at trial or to the witness' credibility in respect of competency". F.M. had no contact with the appellant in a federal institution and the records sought were "discretely separated in time and place from [F.M.]'s association with Snow at the Vancouver Remand Centre in the summer and fall of 1992". As "the federal records may disclose, at most, matters tenuously related to general credibility on a time frame well outside the witness' association with the accused", the trial judge ruled that the appellant had "failed to establish the reasonable possibility that disclosure of the federal records may impede his right to full answer and defence".
56The appellant submits that the trial judge erred in refusing to order production of the federal records. We see no merit in this submission and did not call on the respondent to respond to it. The appellant's submission is based upon pure speculation as to what the federal records might contain and he has failed to demonstrate any error that would justify interference with the ruling of the trial judge.
(b) Statement of Gilbert McMurtrie
57The appellant sought to have admitted into evidence a statement of Gilbert McMurtrie made to a police officer in May 1992. Mr. McMurtrie had died before the trial. He had told the police officer that he had seen a white truck in the Blackburn property sometime in late March or early April and that he saw Mr. Blackburn's Cadillac in the driveway of the farmhouse on April 11. The interview was not videoed or audiotaped, no oath was administered, and Mr. McMurtrie was not warned as to the [page61] potential sanctions for an untruthful statement. The trial judge ruled that the statement should not be admitted as an exception to the hearsay rule under R. v. B. (K.G.), [1993] 1 S.C.R. 740, 79 C.C.C. (3d) 257 and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 147 C.C.C. (3d) 449. The trial judge found that while the appellant satisfied the necessity requirement, there were "no circumstantial guarantees of trustworthiness to overcome the traditional hearsay dangers" and that "the relevancy of the evidence is tenuous at best." The trial judge observed that McMurtrie was unsure of the dates and the fact that a white truck may have been at the farm long before the murders proved little.
58We did not call upon the respondent to address this issue as the appellant has failed to advance any argument that would justify us to interfere with the trial judge's ruling to exclude the hearsay statement.
(c) Similar fact evidence
59The appellant submits that the trial judge erred with respect to the admission of "similar fact" evidence. That evidence fell into two broad categories. First, the Crown tendered evidence to show that the appellant had broken in and taken up residence in other rural or cottage properties prior to the Blackburn murders. Second, the Crown tendered evidence of abductions and sexual assaults of women in British Columbia shortly following the Blackburn murders. The appellant argues that the trial judge erred both with respect to the procedure he followed to determine the admissibility of this evidence and with respect to the ruling he made.
60At trial, the appellant asked the trial judge to require the Crown to call viva voce evidence with respect to each incident being tendered as similar fact evidence on a voir dire before ruling on the admissibility of the evidence. The trial judge refused and proceeded on the basis of the evidence of the appellant's guilty pleas to several of the charges and on the basis of the evidence led at the preliminary inquiry. The trial judge did, however, permit the accused to call any witnesses he thought significant. The accused refused that offer and insisted that he had the right to cross-examine all similar fact witnesses before the ruling as to admissibility.
61The appellant submitted before this court that the procedure adopted by the trial judge constitutes an error of law. We did not call upon the respondent on this ground of appeal as, in our view, it is without merit. The procedure adopted by the trial judge was appropriate in the circumstances of this case. This was not evidence (for example, a statement by the accused) where the [page62] Crown was required to prove certain facts (voluntariness) as a prerequisite for admissibility. In the circumstances of this case, admissibility of the similar fact evidence did not require the testing of circumstances surrounding the evidence, nor was there uncertainty about what the witnesses might say. The trial judge was entitled to adopt a more expeditious procedure that was entirely adequate to test the admissibility of the similar fact evidence: R. v. D. (G.N.), [1993] O.J. No. 722, 81 C.C.C. (3d) 65 (C.A); R. v. Carpenter (No. 2) (1982), 1 C.C.C. (3d) 149, 142 D.L.R. (3d) 237 (Ont. C.A.); cf. R. v. Dietrich, [1970] 3 O.R. 725, 1 C.C.C. (2d) 49 (C.A.), at p. 738 O.R., p. 62 C.C.C.
62We are not persuaded that the trial judge erred in admitting this evidence. First, much of it was admissible as part of the narrative that directly linked the appellant to the Blackburn murders. When the appellant was arrested in British Columbia, he had in his possession items that linked him directly to the [Neilson] burglary. Items directly linking the appellant to the Blackburn homicides were left by the appellant in the automobile of one of the British Columbia sexual assault victims. L.R., one of the sexual assault victims, testified that the appellant had camera equipment similar to that stolen from the Blackburns' residence. The appellant told L.R. that he had killed someone and was on the run from the police. The appellant left a camera bag and camera equipment belonging to Mr. Blackburn in the car of one of his sexual assault victims, together with the Canrail pass he had used to travel to Vancouver from Toronto. Discarded items found at the B.C. campsite linked the appellant to break-ins at the Neilson residence as well as the refuse sites near the Blackburn farm. Guns stolen from the Neilson residence were used in the sexual assaults in British Columbia and likely during the abduction and murder of the Blackburns.
63To the extent that the evidence did not form part of the narrative, the appellant has failed to demonstrate any error on the part of the trial judge that would justify the intervention of this court. We agree with the submission of the respondent that, especially when viewed cumulatively, the evidence of the appellant's extraordinary descent into criminality in the weeks before and after the Blackburn murders demonstrated the existence of behavioural characteristics that significantly narrowed the likelihood that anyone but the appellant murdered the Blackburns. The similar fact evidence indicated a distinctive pattern of conduct that so closely paralleled the behaviour of the Blackburns' murderer that it was not likely the product of chance or coincidence. [page63]
64Discarded items, the appellant's fingerprints and the distinctive writings provided compelling evidence linking the appellant to break-ins at the other cottages and to the campsite in British Columbia where one of the sexual assaults was committed. This linkage, in turn, provided compelling evidence to support the Crown's theory that the person who murdered the Blackburns had likely broken into and occupied the Caledon farmhouse in a similar fashion. The abduction of the Appeltons, similarly, provided strong evidence in support of the Crown's theory that Mr. Blackburn had stumbled upon the appellant at the farmhouse and had been forced to drive the appellant to Toronto.
65The significant features of the sexual assaults in British Columbia, especially the hog-tying of victims (also a feature of the robbery of a video store) and moving victims while hog-tied, were also features of the attack on Mrs. Blackburn as revealed by the forensic evidence. Other similarities -- the robbery of victims, the use of hand guns, the use of gags and head coverings on victims -- while perhaps not unusual in isolation, when viewed cumulatively with the other evidence of misconduct, did point directly to the appellant as the Blackburns' murderer. Simply put, it was highly unlikely that there was another suspect who was breaking into and living in unoccupied cottages, leaving behind a trail of distinctive writings and who liked to hog-tie women for the purpose of sexually assaulting them. We agree with the respondent that the inference permitted by the accumulation of these unique characteristics was far more powerful than any conclusion arising from impermissible propensity reasoning.
66Finally, we note that the trial judge gave a strong limiting instruction respecting the use of the similar fact evidence:
You must, of course, first determine whether the accused is factually connected or linked to the other [similar fact] incidents. It seems to me in this case that identity is not in issue. Assuming that you find as fact that the accused is connected or linked to these incidents, you must not use this evidence to infer that the accused is a person disposed to committing crime in general, that would be an impermissible and totally improper inference. Furthermore, this evidence must not inflame your passions and give rise to prejudice or bias against the accused. Instead, you must consider the similar fact evidence in a rational, dispassionate manner on the question of whether its commission was likely done by the same person who committed the crimes charged before the court.
You must determine whether there are features or characteristics common to more than one of the incidents which are so sufficiently similar as to lift the incidents from the level of merely being general in nature to the level of being distinctive in nature, thereby warranting the drawing of the inference that all such incidents or a number of those incidents were likely committed by the same person and that it would be an affront to common sense that the [page64] similarities are due to mere coincidence or chance. I repeat. You must determine whether there are features or characteristics common to more than one of the incidents which are so sufficiently similar as to lift the incidents from the level of merely being general in nature to the level of being distinctive in nature, thereby warranting the drawing of the inference that all such incidents or a number of those incidents were likely committed by the same person and that it would be an affront to common sense that the similarities are due to mere coincidence or chance.
67We would not give effect to this ground of appeal.
CONCLUSION
68Accordingly, the appeal is dismissed.
Appeal dismissed.
