R. v. Carrière, 2004 CanLII 34707 (ON CA)

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

72 O.R. (3d) 767

[2004] O.J. No. 4363

Docket: C37316

Court of Appeal for Ontario,

Abella, Simmons and Lang JJ.A.

October 29, 2004

Criminal law -- Trial -- Charge to jury -- Reasonable doubt -- Pre-Lifchus charge including instruction that "reasonable doubt" to be given ordinary meaning not special legal connotation -- Jury told to employ value judgments as they would in their lives -- Charge to jury as whole adequately conveying proper standard of proof and no reasonable possibility jury was misled into thinking standard of proof required closer to balance of probabilities than absolute certainty -- Appeal from conviction dismissed.

Criminal law -- Evidence -- Consciousness of guilt (after the fact conduct) -- Trial judge did not err in admitting evidence that accused violently resisted when police tried to seize his clothes -- Accused asserting only involved in disposing of body as forced to do so -- Accused didn't contest admission of evidence of his involvement in disposing of victim's body parts and his efforts to avoid detection -- Evidence of struggling over clothing removal capable of supporting inference of consciousness of guilt and relevant to whether accused forced to act as did or was willing participant -- Appeal from conviction dismissed.

Criminal law -- Trial -- Conduct of crown -- Abusive cross- examination and improper address to jury -- Accused convicted of first degree murder after allegedly killing criminal associate to stop him from talking about their involvement in prior robbery/murder in convenience store -- Accused testifying that present when victim killed and helped to dispose of remains and to destroy evidence -- Crown counsel improperly engaging in sarcastic and abusive cross-examination including repeated references to the accused's criminal past and his violent character -- Trial judge did not err in refusing application for mistrial after Crown referred to accused's conviction for second degree murder in convenience store killing after undertaking not to do so -- Crown's misconduct not intimidating accused or hampering him in presenting his defence -- Trial judge instructing jury that Crown counsel's statements not evidence and giving standard instruction about permissible use of accused's criminal record -- Crown's misconduct serious but did not impair accused's right to a fair trial -- Appeal from conviction for first degree murder dismissed.

Criminal law -- Trial -- Charge to jury -- "Vetrovec" warning -- Trial judge failing to give sufficiently strong warning regarding two unsavory witnesses -- Preferable if trial judge had not included accused in warning -- Hard-fought trial with competing allegations of violent behaviour and dishonesty -- If stronger warning given trial judge would have also instructed jury regarding evidence capable of supporting credibility of unsavory witnesses -- Verdict would necessarily have been the same had proper "Vetrovec" warning been given -- Appeal from conviction for first degree murder dismissed. [page768]

The accused was charged with first degree murder. At trial, it was common ground that the accused and the victim committed a robbery of a convenience store several weeks before the victim's death during which the proprietor was shot and killed; that the accused was present when the victim was murdered and dismembered; that he was involved in disposing of the victim's remains and tried to destroy evidence of the victim's murder and that he tried unsuccessfully to flee from the community where the victim's body was discovered. The Crown alleged that the accused murdered the victim with the assistance of his girlfriend because he was afraid the victim would expose him to the police for his involvement in the convenience store robbery. The accused claimed that the victim and another man, D, were jointly involved in the drug trade, that the victim sold drugs for D, that D killed the victim over a drug debt, and that D forced the accused and his girlfriend to assist in disposing of the victim's body. The def ence applied unsuccessfully for a mistrial after the Crown cross-examined the accused on his conviction for second degree murder in connection with the convenience store robbery after undertaking not to do so. The accused was convicted of first degree murder. He appealed.

In addition to arguing that the Crown misconduct deprived him of a fair trial, he submitted that the trial judge, in his pre- Lifchus charge to the jury on reasonable doubt, misdirected the jury by describing reasonable doubt as an ordinary concept by instructing the jury to apply an everyday standard of decision-making and by suggesting that reasonable doubt involves a choice between conflicting stories and making value judgments on those stories. In addition, the accused submitted that the trial judge omitted at least two essential instructions: an instruction that reasonable doubt requires more than proof on a mere balance of probabilities and that it is closer to absolute certainty than to probable guilt; and an instruction that reasonable doubt is logically connected to the evidence and can arise from the evidence or the absence of evidence. The accused also argued that the trial judge erred by admitting evidence of the accused's failure to cooperate with the police and leaving it with the jur y as evidence of consciousness of guilt and by failing to provide a proper Vetrovec warning regarding the evidence of D and another unsavoury witness.

Held, the appeal should be dismissed.

The trial judge's instructions on reasonable doubt were adequate and there was no real possibility that the jury was misled concerning the standard of proof. He instructed the jury that the criminal standard of proof is closer to certainty than to a balance of probabilities and that the jury was not required to choose between conflicting evidence. He adequately conveyed to the jury that reasonable doubt can arise from evidence that is not accepted. In the face of an instruction that evidence that they did not believe could give rise to reasonable doubt, the jury would have understood not only that they were not obliged to choose between conflicting evidence, but also that they could not simply choose the more likely version of events.

The categories of trial Crown misconduct relied on by the accused included: presenting himself as an officer of the court in both his opening and closing addresses to the jury and then expressing opinions concerning the accused's credibility and guilt; asking sarcastic and abusive questions of the accused during cross-examination; accusing the accused of being a manipulative liar; exceeding the scope of a Parsons ruling and making repeated references during cross-examination and in his closing address to evidence of the accused's criminal antecedents and bad character; referring to the Court of Appeal's view on the impact of crimes of dishonesty on an accused person's credibility; breaching his undertaking not to cross-examine [page769] the accused on his conviction for the convenience store murder; telling the jury that, at another trial, he and his co-counsel had already proven that the accused was the shooter in the convenience store robbery, thereby removing the issue from the jury; and making inappropriate suggestions to the jury, including asking the jury to personalize their assessment of the accused's conduct and credibility and suggesting that it would be an "unfortunate result" if the accused were acquitted.

In rejecting the defence request for a mistrial, the trial judge noted that the subject matter of the case was difficult; not only was the evidence gruesome and inflammatory, but the lifestyle of some of the witnesses was "on the edge". Moreover, there were competing allegations of untruthfulness. The trial judge ruled that the Crown may have gone too far in his closing remarks to the jury, especially in relation to the accused's criminal record, but indicated that it was appropriate to credit the jury with a certain amount of common sense and that he planned to give them various special instructions to balance matters. The trial judge did not err in failing to declare a mistrial as the Crown's alleged misconduct did not irreparably prejudice the accused's right to a fair trial. This was not a trial in which it was likely that the jury would be either easily inflamed or improperly influenced by the sarcastic and abusive questions and remarks by Crown counsel, by his suggestions that the accused was a manipu lative liar, or by his repeated references to the accused's criminal antecedents and his violent character. As the trial judge pointed out, the very subject matter of the trial was gruesome and the criminal lifestyle of many of the witnesses was far removed from that of ordinary citizens. The Crown's misconduct did not hamper the accused in presenting his defence. The accused was not intimidated during cross-examination and was not shaken from the position being advanced in his defence. Importantly, the trial judge instructed the jury that counsel's statements were not evidence. He also gave the jury a standard instruction concerning the permissible use of the accused's criminal record, restricting it to credibility. In relation to the conviction for the convenience store murder, the trial judge told the jury that if the accused had not mentioned it, the Crown would not have been entitled to refer to it at all and that specifically, in his view, that conviction was not of much probative value in judging the a ccused's credibility. He cautioned the jury against propensity reasoning in strong and understandable language.

As for the accused's submission that the Crown exceeded the scope of a Parsons ruling in asking questions relating to the accused's criminal antecedents and bad character, it was noteworthy that, apart from his abusive questions, the Crown likely would have been granted permission to ask the impugned questions had he sought a further ruling. While it may have been preferable for the trial judge to have told the jury explicitly that, in determining the identity of the convenience store shooter, they could draw no conclusions from the accused's prior conviction, that would have been obvious to the jury based on the instructions the trial judge gave. The jury deliberated for 15 hours and asked pertinent questions. Clearly, the members of the jury were perceptive about the events at trial and they seriously considered the testimony they heard, the credibility of the witnesses and the live issues for determination. The Crown's misconduct did not prejudice the accused's right to a fair trial.

The trial judge did not err in admitting testimony that the accused violently resisted police efforts to seize his clothing as evidence of after-the-fact conduct. The accused's active resistance was part of a pattern of hiding evidence and was, moreover, relevant to his claim that he only participated because D forced him to do so.

The trial judge erred in failing to give a stronger caution in respect of the testimony of D and another unsavoury witness, but the verdict would not have been [page770] different had the trial judge given a proper Vetrovec warning. In the context of the charge as a whole, the jury could have been under no misapprehension that they were to approach the evidence of the two men with caution. Moreover, if a stronger Vetrovec direction had been given, the trial judge would also have to review evidence that could confirm the testimony of the unsavory witnesses. There was a considerable body of such evidence. Moreover, the case against the accused was overwhelming. He did not dispute that he was present when the victim was murdered and dismembered, that he participated in placing the victim's body parts in garbage bags and scattering them on the back roads in the surrounding area, that he tried to destroy evidence of the victim's murder, and that the same gun that was used to kill the victim was used 13 days earlier in a convenience store robbery that he and the victim committed, in the course of which the proprietor was killed. There was compelling evidence that the accused unsuccessfully tried to run from the area by asking residents to call a taxi, that he lied to the police about having car trouble and being beaten by two strangers, and that he was the shooter in the convenience store robbery and had maintained control of the gun ever since. While there was also clear evidence pointing to D's involvement in the killing, it did not displace the strong evidence implicating the accused, but rather suggested only that D may also have been involved.

APPEAL by the accused from a conviction for first degree murder entered on December 19, 1996 by Roy J. of the Superior Court of Justice sitting with the jury.

Cases referred to R. v. Armstrong (2003), 2003 29258 (ON CA), 179 C.C.C. (3d) 37, [2003] O.J. No. 3610 (C.A.) [Leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 554]; R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599, 13 O.R. (3d) 452n, 104 D.L.R. (4th) 180, 154 N.R. 245, 82 C.C.C. (3d) 310, 21 C.R. (4th) 277 (sub nom. R. v. Griffith); R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, 182 D.L.R. (4th) 513, 250 N.R. 103, 141 C.C.C. (3d) 321, 30 C.R. (5th) 201; R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, 28 B.C.L.R. (2d) 145, 85 N.R. 81, [1988] 4 W.W.R. 481, 34 C.R.R. 54, 41 C.C.C. (3d) 385, 64 C.R. (3d) 1; R. v. Feeley, [2003] 1 S.C.R. 64, 301 N.R. 115, 171 C.C.C. (3d) 353, 2003 SCC 7, [2003] S.C.J. No. 6, affg (2001), 2001 105 (ON CA), 55 O.R. (3d) 481, 156 C.C.C. (3d) 449 (C.A.); R. v. Hennin, [1993] O.J. No. 1420 (C.A.) [Leave to appeal to S.C.C. refused [1993] S.C.C.A. No. 299]; R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 118 Man. R. (2d) 218, 150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218, [1997] 10 W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1; R. v. Parsons (1993), 1993 3428 (ON CA), 15 O.R. (3d) 1, 17 C.R.R. (2d) 104, 84 C.C.C. (3d) 226, 24 C.R. (4th) 112 (C.A.); R. v. Phillips, 2001 24121 (ON CA), [2001] O.J. No. 83, 154 C.C.C. (3d) 345 (C.A.); R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811, 136 D.L.R. (3d) 89, 41 N.R. 606, [1983] 1 W.W.R. 193, 67 C.C.C. (2d) 1, 27 C.R. (3d) 304, affg (1980), 1980 310 (BC CA), 58 C.C.C. (2d) 537 (B.C.C.A.); 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.

Carol Brewer and Riun Shandler, for respondent. James Lockyer, for appellant.

The judgment of the court was delivered by

1SIMMONS J.A.: -- The appellant appeals against his conviction for the first degree murder of Marc Dubois. Although there has been an eight-year delay in bringing this appeal, appellant's counsel advised that he did not receive authorization to proceed [page771] with it until the appellant's appeal of an earlier murder conviction was completed.

I. Overview

2Shortly after noon on January 20, 1994, the police found Marc Dubois's car burning in an Orleans parking lot. They subsequently determined that Dubois had been shot in the back of the head while seated in the driver's seat of his car and that his body had been dismembered with a chainsaw on a farm owned by Michel Deslauriers. Police found Dubois's torso on January 25, 1994, and additional body parts over the course of the next four months. They also discovered a .357 magnum revolver hidden in the barn on Deslauriers's farm.

3On January 20, 1994, the police arrested the appellant in a residential neighbourhood in the vicinity of Dubois's burning vehicle and charged him with various offences unrelated to Dubois's murder. They noted that the appellant's boots were splattered with blood and that he smelled of gasoline. Subsequent DNA testing revealed that Dubois's body tissue and blood were on the appellant's boots.

4It was common ground at trial that:

-- the appellant was present when Dubois was murdered and dismembered;

-- the appellant was involved in disposing of Dubois's remains;

-- the appellant tried to destroy evidence of Dubois's murder;

-- the appellant attempted unsuccessfully to flee from Orleans where Dubois's burning car was discovered;

-- on January 7, 1994, the appellant and Dubois had robbed a convenience store, during the course of which the proprietor, Mr. Dai, was shot and killed; and

-- the .357 magnum revolver found on the Deslauriers farm was used in both the Dubois and Dai killings.

5At trial, the Crown alleged that the appellant murdered Dubois with the assistance of his girlfriend, Lisa Brown, because the appellant was afraid Dubois would expose him to the police for his involvement in the convenience store robbery. However, the appellant testified at trial and claimed that Deslauriers and Dubois were jointly involved in the drug trade, that Dubois sold drugs for Deslauriers, that Deslauriers killed Dubois over a drug [page772] debt and that Deslauriers forced him and Brown to assist in disposing of Dubois's body.

6The appellant was tried before Roy J. sitting with a jury. After five weeks of trial and two days of deliberations, the jury returned a verdict of guilty of first degree murder.

7The appellant raises several grounds of appeal [See Note 1 at the end of the document]:

i. the trial judge erred in his instructions to the jury on reasonable doubt;

ii. the appellant's trial was rendered unfair by the misconduct of the trial Crown;

iii. the trial judge erred by failing to declare a mistrial after the trial Crown cross-examined the appellant on his conviction for second degree murder in connection with the convenience store robbery;

iv. the trial judge erred by admitting evidence of the appellant's failure to cooperate with the police and leaving it with the jury as evidence of consciousness of guilt;

v. the trial judge erred by failing to provide a proper Vetrovec [See Note 2 at the end of the document] warning regarding the evidence of two unsavoury witnesses, Yves Charbonneau and Deslauriers;

vi. the trial judge erred in leaving the jury alone in the courtroom with the court reporter to play back tape-recorded evidence;

vii. the trial judge erred by failing to provide a proper limiting instruction to the jury concerning the use they could make of Deslauriers's evidence that the appellant told Deslauriers that he (the appellant) had killed and dismembered another man.

8The court did not call on the Crown to address the ground of appeal relating to leaving the jury alone in the courtroom with the court reporter to play back tape-recorded evidence. Although I agree that it was an error for the trial judge to proceed in this fashion, in light of the fresh evidence adduced by [page773] the Crown relating to this issue, I am satisfied that the appellant suffered no prejudice as a result and that, accordingly, no substantial wrong was occasioned. In my view, this ground of appeal is governed by this court's decision in R. v. Hennin, [1993] O.J. No. 1420 (C.A.), leave to appeal refused [1993] S.C.C.A. No. 299. I reject the appellant's submission that the court should revisit it.

9For the reasons that follow, I would dismiss the appeal.

II. Background

10The Crown's case at trial consisted of several components: (a) evidence that the appellant was the shooter in the convenience store killing, that he retained control of the .357 magnum revolver following the convenience store killing, and that the .357 magnum revolver found at Deslauriers's farm was the gun used in the convenience store killing; (b) evidence that the appellant thought Dubois was talking too much following the convenience store killing and that the appellant was nervous about him; (c) evidence that the appellant and Brown discussed killing Dubois; (d) forensic evidence linking the appellant to Dubois's body; and (e) evidence that the appellant attempted to destroy evidence and to withhold evidence from the police following Dubois's murder.

11The evidence that the appellant was the shooter in the convenience store killing was relevant to the issues of motive and access to a gun. Following the appellant's testimony, that evidence was also significant to the appellant's credibility. Moreover, the evidence relating to the .357 magnum revolver took on an added significance because the appellant's testimony confirmed that it was very likely the murder weapon.

12I will briefly review the main components of the Crown's case and the appellant's testimony at trial to provide a context for the issues raised on appeal. I will deal more fully with the evidence relating to the issues on appeal when considering those issues.

(a) Evidence that the appellant was the shooter in the convenience store killing, that he retained control of the .357 magnum revolver following the convenience store killing, and that the .357 magnum revolver found at Deslauriers's farm was the gun used in the convenience store killing

13Derrick Day testified that, on Friday, January 7, 1994, he was working in the convenience store where his father was killed. At approximately 9:45 p.m., two men came into the store. [page774] Their faces were covered with scarves. The first man, who was carrying a gun, pursued Mr. Dai into a small office behind the cigarette counter. The second robber, who was unarmed, took up a position just behind the front counter and stayed in place until after the fatal shots were fired. Day said the second robber was larger than the first, and had brown eyes. The evidence at trial indicated that the appellant was larger than Dubois and had brown eyes, whereas Dubois had blue eyes. However, the appellant's blood was found in the office area of the convenience store and on the cigarette display. Moreover, the trial Crown attributed Day's testimony concerning the difference in size to the fact that Dubois was wearing a parka during the robbery, while the appellant was wearing a sweater.

14Police recovered three bullets arising from the convenience store killing: one from the ceiling, one from Mr. Dai, and one in fragments on the floor in the vicinity of an ice cream machine. The bullet recovered from the ceiling had the appellant's blood on it, suggesting that it had passed through the appellant (but not through Mr. Dai).

15Following the robbery, the appellant and Dubois returned to the appellant's Richelieu Street apartment. Ulrica Belanger, a friend of Brown's, was at the apartment. According to Belanger, the appellant told Brown to dispose of the bullets and clean the gun. Brown put the bullets in a beer bottle. Belanger also testified that the appellant had injured his finger and that Dubois took him to the hospital. Dubois later returned to the apartment, following which Belanger and Dubois spent several nights together.

16Police found three cartridge casings in the garbage outside the appellant's apartment. Forensic testing confirmed the likelihood that all three cartridges were fired from the same gun, namely, the .357 magnum revolver found at the Deslauriers farm.

17Yves Charbonneau gave evidence about seeing Dubois soon after the convenience store robbery, and about an alleged admission by the appellant. Charbonneau was a friend of Marc Dubois, having met him in prison. In early January 1994, Dubois introduced Charbonneau to the appellant. Shortly thereafter, Charbonneau sublet the Richelieu Street apartment to the appellant and Brown.

18Charbonneau testified that on January 7, 1994, at about 10:30 p.m., Charbonneau was at a friend's apartment when Dubois arrived with blood on his clothing. Dubois changed his clothes and he and Charbonneau left. Charbonneau said that he did not see Dubois with a gun at that time. [page775]

19In addition, Charbonneau said that after hearing about the convenience store robbery, he asked the appellant to leave the Richelieu Street apartment. He went to speak to the appellant at the apartment and during this conversation the appellant told him that, after accidentally shooting his own finger, he shot Mr. Dai with his own gun.

20Deslauriers also gave evidence about an alleged admission by the appellant concerning the convenience store killing. Deslauriers testified that he grew marijuana at the farm where Dubois's body was dismembered. He acknowledged cultivating and dealing in marijuana but denied knowing Dubois. Deslauriers and the appellant met in jail. The appellant was living at Deslauriers's farm in late 1993. Around December 28, 1993, Deslauriers decided to close the farm, so he drove the appellant and Brown to Ottawa. On two occasions a short time later, he visited the appellant and Brown at the Richelieu Street apartment. Deslauriers said that, on the first occasion, he asked the appellant how he injured his finger. The appellant explained that he was robbing a convenience store when he was attacked, so he shot back and shot off his finger. The appellant also stated that he shot the Chinese proprietor of the convenience store.

(b) Evidence that the appellant thought Dubois was talking too much following the convenience store killing and that the appellant was nervous about him

21Charbonneau and Deslauriers both gave evidence to the effect that following the convenience store killing, the appellant was nervous about Dubois because he thought Dubois was talking too much.

22In particular, Charbonneau testified about a conversation with the appellant on January 9, 1994, in which the appellant said Dubois was "too nervous" and "talking too much". Deslauriers testified that the appellant said his new partner (Dubois) was with him and witnessed the murder; he described the appellant as being very nervous about Dubois because Dubois was edgy and not himself.

(c) Evidence that the appellant and Brown discussed killing Dubois

23Deslauriers testified that he heard the appellant and Brown discuss killing Dubois on both occasions that he visited them at the Richelieu Street apartment. He said the first time he went to the Richelieu Street apartment, both the appellant and Brown were talking about killing Dubois and were arguing [page776] between themselves about who was going to kill him. When Deslauriers returned to their apartment later that week, he heard "more serious talk about killing . . . Dubois". The appellant and Brown indicated they had to kill Dubois that week because Dubois had to go and get fingerprinted by the RCMP. Deslauriers said the appellant was very concerned about Dubois being fingerprinted.

(d) Forensic evidence linking the appellant to Dubois's body

24As already noted, DNA testing established that flesh particles and bloodstains found on the appellant's boots and clothing were from Dubois. Moreover, bloodstains and flesh particles found in Dubois's car and in Deslauriers's barn were consistent with Dubois having been shot in the car and his body dismembered in the barn. Straw similar to that found in the barn, and Dubois's blood and tissue, were also found in the trunk of Dubois's car.

(e) Evidence that the appellant attempted to destroy evidence and to withhold evidence from the police following Dubois's murder

25As already noted, the appellant was arrested attempting to flee from the location where he had doused Dubois's bloodstained vehicle in gasoline and set it on fire. After leaving Dubois's vehicle, the appellant began knocking on doors in the local neighbourhood, asking the residents to call him a taxi. When approached by police, the appellant claimed he had car trouble at a nearby plaza and that he was beaten by two strangers. Police found the appellant's leather jacket, which had Dubois's blood on it, buried in the snow near one of the houses where the appellant had asked the residents to call him a taxi. The appellant was arrested initially for attempted breaking and entering and being intoxicated in a public place. Two officers gave conflicting evidence concerning whether the appellant co-operated in the removal of his boots.

26Following the appellant's initial arrest, the police established a link between the appellant and Dubois's burning car, and re-arrested the appellant, this time for arson and theft. After the second arrest, the appellant refused to co-operate with the removal of the remainder of his clothing, some of which was soaked with Dubois's blood.

(f) The appellant's testimony at trial

27The appellant testified that on Friday, January 7, 1994, he and Dubois had been drinking heavily and decided to "boost" [page777] some cigarettes from the convenience store. He did not have a gun and did not know that Dubois was armed. Dubois entered the convenience store first and the appellant followed. The appellant walked towards the cigarette counter. He saw Derrick Day, told him to lie down, and started putting cigarettes into a bag. He heard a noise from behind the counter and saw that Dubois was down on his back and that Mr. Dai was about to strike him with a piece of wood. The appellant tried to put his hand on the wood to block the blow, but while he was doing this Dubois accidentally shot him in the finger. The appellant left the store, taking the cash register with him. Dubois drove the getaway car. The appellant was weak and dizzy, half of his finger was dangling from his hand, and he was bleeding profusely.

28Dubois drove the appellant to the Richelieu Street apartment. Brown and Belanger were there. The appellant washed his finger in the sink and convinced Dubois to drive him to the hospital. The appellant did not recall telling Brown to clean the gun and dispose of the bullets.

29The appellant also denied that he made any of the statements about his role in the robbery as alleged by Charbonneau and Deslauriers. He admitted that, shortly after the convenience store robbery, Charbonneau told him to find a new place to live, but he denied any discussion of the robbery or Dubois at any time.

30The appellant had known Deslauriers for many years. Deslauriers was a drug dealer. The appellant lived at Deslauriers's farm outside of Ottawa from October to December 1993, and helped Deslauriers to cultivate and process marijuana. The appellant testified that Dubois also worked for Deslauriers selling marijuana. The appellant denied ever discussing the robbery or Dubois with Deslauriers.

31The appellant claimed that Deslauriers had advanced 1.5 kilograms of marijuana to Dubois in late 1993. Dubois spent the money from the sale of the marijuana on cocaine and, as a result, owed Deslauriers over $5,000. On January 20, 1994, Deslauriers, Dubois, the appellant and Brown drove to Deslauriers's farm in Dubois's car. The appellant understood that Deslauriers was going to provide Dubois with additional marijuana to sell so Dubois pay off his debt. Dubois asked the appellant and Brown to come with him because he did not want to go alone. As the car approached the farm, Deslauriers started to "freak out", and shot Dubois in the back of the head.

32Deslauriers initially instructed the appellant to place Dubois's body in the trunk of Dubois's car. Early the next morning, Deslauriers forced the appellant to help him carry the body [page778] from the car into the barn where Deslauriers cut it up with a chainsaw. The appellant and Brown placed the body parts in plastic bags and put them in the trunk of Dubois's car. After the body parts were placed in the trunk, Brown called a tow truck to pull the car out of a snow bank. Subsequently, Deslauriers drove the car across the road where he, Brown and the appellant burned Dubois's clothing, the appellant's bloodstained jeans, and Dubois's identification. Deslauriers then drove along some back roads, stopping periodically so they could throw the bags of Dubois's body parts into the snow. They then returned to the farm and Deslauriers told the appellant and Brown to take Dubois's car and "get the hell out of here". The appellant said he assisted Deslauriers because he was frightened for his and Brown's li ves. The appellant explained that he resisted police efforts to seize his clothing because he wanted to call his lawyer.

III. Analysis

(i) Did the trial judge err in his instructions to the jury on reasonable doubt?

33The appellant raises several issues concerning the trial judge's instructions to the jury on reasonable doubt [See Note 3 at the end of the document], which predated the Supreme Court of Canada's decision in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1. First, the appellant asserts that the trial judge misdirected the jury in a number of important respects: by describing reasonable doubt as an ordinary concept; by instructing the jury to apply an everyday standard of decision-making; by suggesting that reasonable doubt involves a choice between conflicting stories and making value judgments on those stories; and by giving the jury a variant of a "timid juror" instruction.

34In addition, the appellant submits that the trial judge omitted at least two essential instructions: an instruction that reasonable doubt requires more than proof on a mere balance of probabilities and that it is closer to absolute certainty than to probable guilt; and an instruction that reasonable doubt is logically connected to the evidence and can arise from the evidence or the absence of evidence. The appellant contends that, in light of these errors, there is a real possibility that the jury may have been misled as to the proper standard of proof. [page779]

35After reviewing the charge as a whole, I am satisfied that the trial judge's instructions were adequate and I reject the appellant's contention that there is any real possibility that the jury was misled concerning the standard of proof.

36In particular, I note that the trial judge commenced his charge with a careful explanation to the jury of their two-fold duty of protecting individuals from unjust convictions and of safeguarding the community by making findings of guilt against persons who have committed crimes. He also linked the burden of proof to the presumption of innocence and explained in clear language that these are principles that distinguish Canada from other countries, making it clear to the jury that the exercise they were engaged in was something more than everyday decision-making. Importantly, after giving his initial instructions on reasonable doubt, the trial judge repeatedly emphasized this concept and, in doing so, gave instructions indicating that the criminal standard of proof is closer to certainty than to a balance of probabilities, and that the jury was not required to choose between conflicting evidence.

37For example, when instructing the jury on aiding and abetting, the trial judge equated reasonable doubt to not being sure, making it clear that the criminal standard of proof approaches certainty. The trial judge said:

In this case, if you look at the evidence, it would be open for you to say, well I'm not sure or I can't be satisfied beyond a reasonable doubt that the accused committed the crime . . .

(Emphasis added)

38Further, on several occasions, the trial judge gave instructions similar to the following:

And I repeat again, if you accept his evidence or are left in some -- with a reasonable doubt, even if you don't believe his evidence, then he is entitled to be acquitted.

39Although the instruction set out above does not replicate the second branch of W. (D.) [See Note 4 at the end of the document] precisely, because the trial judge gave the instruction without the first and third branches of the W. (D.) instruction, I am satisfied that it conveyed to the jury the same meaning as the second branch of the W. (D.) instruction, namely, that reasonable doubt can arise from evidence that is not accepted.

40In the face of an instruction that evidence that they did not believe could give rise to reasonable doubt, the jury would [page780] have understood not only that they were not obliged to choose between conflicting evidence, but also that that they could not simply choose the more likely version of events.

41In my view, the combination of all of the foregoing instructions would have made it clear to the jury that the standard of proof beyond a reasonable doubt requires a degree of proof far greater than that required for everyday decision-making and one that is closer to absolute certainty than to a balance of probabilities.

42In addition, I note that in his closing address to the jury, defence counsel told the jury that they could not convict the appellant if they thought he was probably guilty, and he described proof beyond a reasonable doubt as requiring a "moral certainty" that is higher than the standard used in daily affairs. While defence counsel's comments cannot be used to bolster the trial judge's instructions, they indicate that he was alive to the issues relating to a proper reasonable doubt instruction. In these circumstances, I am satisfied that his failure to object to the trial judge's charge demonstrates he was satisfied that the charge adequately conveyed the proper standard of proof. See R. v. Phillips, 2001 24121 (ON CA), [2001] O.J. No. 83, 154 C.C.C. (3d) 345 (C.A.).

43I do not think that the trial judge's charge included a "timid juror" instruction. The language used by the trial judge is akin to that used in R. v. Feeley (2001), 2001 105 (ON CA), 55 O.R. (3d) 481, 156 C.C.C. (3d) 449 (C.A.), affd 2003 SCC 7, [2003] 1 S.C.R. 64, 171 C.C.C. (3d) 353, and does not carry the same connotation as a "timid juror" instruction.

44Finally, I think the trial judge's analogy to a puzzle in the early part of his charge was sufficient, to the extent that it was necessary on the facts of this case, to alert the jury to the fact that an absence of evidence can give rise to a reasonable doubt.

(ii) Was the trial rendered unfair by the misconduct of the trial Crown?

(iii) Did the trial judge err by failing to declare a mistrial after the trial Crown cross-examined the appellant on his conviction for second degree murder in connection with the convenience store robbery?

45I will deal with the second and third grounds of appeal together because, in my view, they are related.

46The appellant submits that his right to a fair trial was prejudiced by numerous acts of deliberate Crown misconduct. In [page781] addition, he contends that the trial judge erred in failing to grant the defence request for a mistrial made at the conclusion of the trial Crown's closing address, and that the trial judge's attempt to provide a remedy through his jury instructions failed to overcome the serious prejudice flowing from the trial Crown's repeated improprieties. Finally, the appellant contends that the trial judge erred by failing to declare a mistrial after the trial Crown cross-examined the appellant on his conviction for second degree murder in connection with the convenience store robbery, and that the trial judge's jury instructions concerning this issue failed to alleviate the prejudice arising from this transgression.

47The Crown on appeal concedes that the trial Crown conducted himself inappropriately in a number of respects. She argues, however, that this court should determine this ground of appeal by considering whether the trial judge erred in refusing to grant the defence request for a mistrial. Viewed in this light, she submits that the trial judge did not err in the exercise of his discretion by refusing to grant a mistrial, and further, that the trial judge's instructions to the jury corrected any harm occasioned by the trial Crown's misconduct.

48To assess this ground of appeal, it will be helpful to review the appellant's submissions. The trial Crown's misconduct began in his opening address to the jury, continued in his cross-examination of the appellant and culminated in his closing address. The appellant contends that the flagrant and repeated nature of the trial Crown's transgressions demonstrates their deliberate character.

49The categories of trial Crown misconduct cited by the appellant include the following: presenting himself as a officer of the court in both his opening and closing addresses to the jury and then expressing opinions concerning the appellant's credibility and guilt; asking sarcastic and abusive questions of the appellant during cross-examination; accusing the appellant of being a manipulative liar; exceeding the scope of a Parsons [See Note 5 at the end of the document] ruling and making repeated references during cross-examination and in his closing address to evidence of the appellant's criminal antecedents and bad character; referring to the Court of Appeal's view on the impact of crimes of dishonesty on an accused person's credibility; breaching his undertaking not to cross-examine the appellant on his conviction for the convenience store murder; telling the jury that, at another trial, he and his co-counsel had already [page782] proven that the appellant was the shooter in the convenience store robbery, thereby removing the issue from the jury; and making inappropriate suggestions to the jury, including asking the jury to personalize their assessment of the appellant's conduct and credibility, and suggesting that it would be an "unfortunate result" if the appellant were acquitted.

50In order to illustrate the level of the trial Crown's misconduct, I will set out some of the most egregious examples on which the appellant relies. However, it is important to note that these are but examples of the misconduct that occurred:

(i) Excerpts from the trial Crown's opening address to the jury

I've personally been involved in this case for at least close to three years, since the actual murder of Marc Dubois. And the same pretty well applies to my colleague . . . So you wouldn't be surprised to hear that we have certain views about the case, that I formulated various opinions in regards to the evidence . . . Our purpose as Crowns is strictly to help you understand what this case is all about and hopefully again guide you to what we feel is the just and proper verdict.

I'm confident that once you know what we know about the case, you will be convinced that [the appellant] participated in planning the death of Marc Dubois and in the actual murder of Marc Dubois.

(Emphasis added)

(ii) Excerpts from the trial Crown's cross-examination of the appellant

(a) Accusations that the appellant was lying and manipulating the jury

Q. Are you sure that this isn't what you're trying to do? Trying to dupe these people to my right . . . with your stories?

Q. . . . Do you begin to understand now why I'm suggesting to you that you're pretty good when it comes to playing little games and telling lies like that?

Q. Are you telling us a lie here . . . or is this the truth?

(b) the appellant's criminal antecedents and bad character

Q. . . . Out of respect for Mr. Dubois, can I ask you to relate to us today where you would have placed his head . . . [page783]

Q. . . . Because -- do you remember having photographs in your possession, all of the photographs showing Mr. Dubois' decapitated body, in your cell at a certain point in time in Ottawa?

Q. Do you remember making jokes about that . . .?

Q. . . . but did you not spend a good part of your life in jail?

Q. And I believe that you took some courses while you are in jail. There are courses offered in prison?

Q. And I understand it one of the courses offered was the butcher's course. Do you recall that?

Q. And that entailed decapitating animals, right?

Q. You didn't have a problem with doing an armed robbery. That wasn't something new for you.

Q. And you drank all afternoon because you commit robberies when you drink, right?

(iii) Excerpts from the trial Crown's closing address to the jury

(a) Accusations that the appellant was lying and manipulating the jury

He can pretend all he wants; he can lie all he wants the truth betrays him.

Now I didn't mean to be offensive to the reality of the matter that Mr. Dubois' head, as you've heard, was never found. If [the appellant] was so respectful of Marc Dubois, he would have told the police something . . . His little show of emotion . . . that part about a good friend Marc Dubois out of respect I want the truth to come out. That was planned. That was faked. It was obviously a ploy to manipulate you, to manipulate your emotions. [The appellant] is fundamentally a dishonest person.

How can [the appellant] dare tell us that he's so sorry for what happened to poor old Mr. Dai.

Now some of the things [the appellant] says may be true but it's twisted by him. That's his game to twist the truth to his advantage. Hopefully again you've seen through that. [page784]

(b) The appellant's criminal antecedents and bad character

Good morning. Now within a span of two weeks back in January 1994, the accused who stands before you, [the appellant] took away two lives . . . His guilt is crystal clear and his guilt should be crystal clear in your mind at this point . . .

[The appellant] is a violent person. I think we've shown that. He's not only capable of doing such gruesome acts but he had a motive to do it and he had also the means to do it.

(c) The trial Crown's personal opinion on the appellant's guilt and credibility

You now know everything that we know about what [the appellant] did to Marc Dubois. I guess that if you're not convinced by now with everything that you've heard and seen then I doubt that I have the skills or the ability to convince you otherwise. You have been presented with what I consider to be overwhelming evidence of guilt.

Now is the accused a credible person? Is he someone that can [be] believe[d]? I've already told you my view of [the appellant] and I think that this view, the Crown's view of [the appellant] is clearly supported by what we've heard and what we've seen in this courtroom.

(d) Comments suggesting that an acquittal would be an unfortunate result

If you conclude in your minds that [co-counsel] and I have failed in our task to convince you that this person is guilty then you will be bound by this unfortunate result.

(e) Personalizing the appellant's conduct

[Obstructing police] means that one is dishonest with a police officer. Have you been dishonest with a police officer lately?

(f) Examples of other improper suggestions to the jury

. . . I don't know what you're thinking. For all I know you may be thinking the Crown is stupid to think [the appellant] is guilty. But if I . . . was able to convince . . . one person that [the appellant] is guilty beyond a reasonable doubt and you are so convinced then I would ask . . . this person or these persons to maintain their position. I would ask you not to cave into the pressure of your colleagues who . . . bought into this theory that Deslauriers did this. But the ones who have been convinced may have to show a great deal of courage in their conviction that [the appellant] is guilty. The bottom line is that I'm asking you not to collapse under the pressure of the majority if that's the case.

51Turning to the issue of the trial Crown cross-examining the appellant concerning his conviction for second degree murder in relation to the convenience store robbery, the trial Crown [page785] agreed during the course of a Corbett [See Note 6 at the end of the document] application that he would not refer to this conviction. However, during the course of cross-examination, the following exchange occurred:

Q. . . . if I understand your story correctly . . . on January 7, 1994, you run into a corner store, not knowing that Mr. Dubois is armed, that your blood is found two to three feet from the victim, Mr. Dai's feet. You run away from there. And two weeks later, Mr. Dubois is shot with the same gun, if I understand correctly, and then you run away from the vehicle that was used -- in which Mr. Dubois was killed. You have Mr. Dubois' flesh on your boots, his blood is on your underwear but you have nothing to do with this, is that it?

A. I was sentenced to life imprisonment for my involvement in the corner store matter; a life sentence with eligibility after 23 years. I didn't shoot Mr. Dai. Marc shot him. This is what I testified to at the trial in Ottawa.

52Later, when cross-examining the appellant on the facts of the convenience store robbery, the trial Crown cross-examined the appellant on the murder conviction:

Q. Okay. You're the one that told us earlier on -- you indicated that you'd been convicted in Ottawa for Mr. Dai's murder, right?

A. Yes sir.

Q. But that wasn't --

A. I was convicted for having taken part in the murder, the -- the theft.

53At the conclusion of his cross examination, the trial Crown asked the following question:

Q. Thank you . . . I only have one last question that I'd like to ask you if you'll allow me to do so.

The Court: Yes.

Q. You attempted sir, to -- you're the one that opened the door leading to your conviction in Ottawa. I didn't talk about it; you chose to talk about it, sir. I have a copy of the charge for which you were found guilty of. You said that you were found guilty for having taken part in what had occurred. I'm going to read out what you were accused of: "[The appellant] stands charge that he . . . did commit second-degree murder on the person of [Mr. Dai] contrary to section 235(1) of the Criminal Code of Canada". That's what you were found guilty of, right?

Defence Counsel: Your Honour, if he could read the second indictment too because in light of the response that the witness gave, I think it's only fair. [page786]

Q. You were found guilty of robbery, sir, of the armed robbery and of Mr. Dai's murder, right? That was in front of twelve people in Ottawa, right?

A. I was found guilty.

54During his closing address to the jury, the trial Crown said the following:

. . . I truly don't have to convince you that [the appellant] shot and killed Mr. Dai. As you know from the accused [co-counsel] and I have already done that in Ottawa in another trial. But obviously the events in Vanier are important for this trial. It is a big piece of this huge puzzle that we have to deal with.

55As already noted, following the trial Crown's closing address, defence counsel moved for a mistrial. He submitted that the trial Crown's extensive references to the appellant's criminal record amounted to character assassination. In addition, he objected to the trial Crown referring to the appellant's conviction for the convenience store murder, saying that he did not know how the trial judge could correct the risk of propensity reasoning arising from the trial Crown's remarks. Finally, he objected to the trial Crown expressing opinions concerning the appellant's credibility and guilt and referring to the appellant as a manipulator.

56The trial judge rejected defence counsel's request. He noted that the subject matter of the case was difficult; not only was the evidence gruesome and inflammatory, but the lifestyle of some of the witnesses was "on the edge". Moreover, there were competing allegations of untruthfulness. In his ruling, the trial judge said that he felt that the trial Crown may have gone too far in his closing remarks to the jury, especially in relation to the appellant's criminal record. However, he indicated that it was appropriate to credit the jury with a certain amount of common sense and that he planned to give them various special instructions to balance matters.

57The appellant contends that the trial judge erred in failing to grant the defence application for mistrial. He submits that the trial judge's comment to the effect that "there might have been some excess" betrays the trial judge's failure to comprehend the extent of the trial Crown's deliberate misconduct. Further, he contends that the trial Crown's misconduct was so serious that it was incapable of remedy and that, in any event, the trial judge's remedial instructions were simply not strong enough. Finally, the appellant submits that the trial judge's instructions failed to [page787] address many aspects of the trial Crown's misconduct, which I have catalogued above.

58Although I agree that the Crown's misconduct was serious, I am not persuaded that the trial judge erred in failing to declare a mistrial or that the trial Crown's misconduct irreparably prejudiced the appellant's right to a fair trial in this case for eight reasons.

59First, in my view, this was not a trial in which it was likely that the jury would be either easily inflamed or improperly influenced by the sarcastic and abusive questions and remarks by Crown counsel, by his suggestions that the appellant was a manipulative liar, or by his repeated references to the appellant's criminal antecedents and his violent character.

60As the trial judge noted during the mistrial application, the very subject matter of the trial was gruesome and the criminal lifestyle of many of the witnesses was far removed from that of ordinary citizens. Prior to the commencement of jury selection, the trial judge alerted potential jurors to the nature of the trial and invited individuals who believed that they would be unable to render an impartial verdict because of anything they had read, seen or heard about Dubois's death and the dismemberment and distribution of his body parts to say so.

61Further, this was a hard fought trial involving competing allegations of violent behaviour and dishonesty. The defence included an aggressive attack on Deslauriers's character and credibility. In order to present Deslauriers as the real perpetrator of the murder and to support the defence of duress, defence counsel cross-examined Deslauriers extensively about his propensity for violence. The subject matter of Deslauriers's cross-examination included his business as a drug dealer, the "lethal" and "vicious" nature of the drug trade, his nickname of "Psycho Mike", his possession and use of guns, his cocaine and alcohol abuse and their impact on his behaviour, his anger management problems, and specific acts of violence directed against four individuals. In addition, defence counsel cross-examined Deslauriers extensively on prior inconsistent statements and, on several occasions during his closing address to the jury, suggested that Deslauriers was a liar.

62Finally, I note that for the most part, experienced defence counsel at trial did not object to the trial Crown's misconduct until after the trial Crown's closing address.

63This first factor is in no way intended to excuse the serious misconduct by the trial Crown. However, it is relevant to the potential prejudice arising from his misconduct. Viewed in context, I consider that it would have been obvious to this jury that [page788] the trial Crown was conducting himself in an adversarial manner and that the jury would have assessed his comments and remarks with that in mind.

64Second, although I agree that the trial Crown posed questions to the appellant in cross-examination that were clearly improper, and that it would have been preferable had the trial judge intervened immediately to stop him, I do not consider that the trial Crown's misconduct hampered the appellant in presenting his defence.

65On my review of the record, the appellant was not intimidated during cross-examination, but rather maintained his composure, rejected the trial Crown's inappropriate suggestions, and was not shaken from the position being advanced in his defence. Importantly, the trial judge instructed the jury that counsel's statements are not evidence. The abusive questions comprise no more than about 12 pages of transcript spread out over a 132-page cross-examination. Once again, I do not refer to this factor to in any way minimize or excuse the trial Crown's misconduct, but I do consider it relevant in assessing the potential prejudice arising from the trial Crown's misconduct.

66Third, although defence counsel at trial did not raise all of the instances of Crown misconduct on the mistrial application that have been raised on appeal, the trial judge had the advantage of seeing the events at trial as they unfolded and assessing their impact on the jury. Accordingly, he was in the best position to determine whether a mistrial was warranted. While I consider that it would have been preferable for the trial judge to have intervened at an earlier stage to curtail the trial Crown's misconduct, as already noted, this was a hard fought trial and, for the most part, experienced defence counsel at trial did not object to the trial Crown's misconduct until after the trial Crown's closing address.

67Despite the trial judge's language to the effect that the trial Crown may have gone too far, the essence of the trial judge's ruling was that the trial Crown had gone too far but that the prejudice created could be remedied through appropriate instructions. In the circumstances, I see no basis to interfere with the trial judge's exercise of discretion in refusing to grant a mistrial.

68Fourth, I am satisfied that, in his opening remarks to the jury, in his mid-trial instructions, and in his charge, the trial judge adequately addressed the potential harm arising from the issues which have been raised on appeal. In particular, the trial judge reminded the jury on several occasions that the Crown's opinion was irrelevant and that the jurors were the sole judges of [page789] the facts. He did so not only in his opening remarks, but also in an additional instruction given to the jury immediately following the trial Crown's opening address, as well as in his final instructions [See Note 7 at the end of the document]. In his final instructions, the trial judge also repeatedly told the jury that they were to decide the case based only on the evidence that was presented to them.

69In addition, the trial judge gave the jury a standard instruction concerning the permissible use of the appellant's criminal record, restricting it to credibility. In relation to the conviction for the convenience store murder, the trial judge told the jury that if the accused had not mentioned it, the Crown would not have been entitled to refer to it at all and that specifically, in his view, that conviction was not of much probative value in judging the appellant's credibility. Finally, the trial judge discussed the trial Crown's references in his closing address to the appellant's criminal record and cautioned the jury against propensity reasoning in strong and understandable language [See Note 8 at the end of the document].

70Although the trial judge may not have addressed in his instructions every individual issue raised by the appellant on appeal, in my view, many of the individual issues not addressed are subsumed within two broad categories, namely, the trial Crown expressing his personal opinion and the trial Crown making repeated references to the appellant's criminal record and bad character.

71For example, I consider that the issues relating to the trial Crown presenting himself as an officer of the court and expressing his opinion concerning the credibility of the accused are subsumed within the broad issue of the trial Crown expressing his opinion. Although the trial judge's instructions focused on the trial Crown expressing his opinion concerning the appellant's guilt, I see no realistic possibility that the jury would not have related this instruction to the trial Crown's expressions of opinion concerning the appellant's credibility. Further, given the instruction that the trial Crown's opinion was irrelevant, the fact that the trial Crown presented himself as an officer of the court would not have led the jury to afford it additional weight.

72I reach a similar conclusion concerning the trial Crown's statements in his closing address that the appellant is a violent man and that he took away two lives within a span of two weeks [page790] in January 1994. In my view, the trial judge properly cautioned the jury against propensity reasoning in clear terms and in a manner that was sufficient to offset the prejudice arising from these improper remarks.

73Finally, in my view, the jury would have understood that the trial judge's clear and forceful caution against propensity reasoning applied to the appellant's conviction for second degree murder in connection with the convenience store robbery.

74Fifth, as for the appellant's submission that the trial Crown exceeded the scope of a Parsons ruling in asking questions relating to the appellant's criminal antecedents and bad character, I note that, apart from his abusive questions, the trial Crown likely would have been granted permission to ask the impugned questions had he sought a further ruling. As already noted, the defence in this case involved an aggressive attack on Deslauriers's character as evidence that he was the real perpetrator of the murder, and to support a defence of duress. In light of this attack, the appellant had placed his character in issue and was open to a similar line of questioning. In any event, apart from his caution against propensity reasoning, the trial judge never explained to the jury the use they could make of the Parsons evidence. In the circumstances, I consider that the trial judge's non-direction on this issue inured to the appellant's benefit.

75Sixth, I reject the appellant's submission that the trial judge's instructions were not strong enough to offset the potential prejudice arising from the trial Crown's misconduct. The trial judge was in the best position to determine how to communicate remedial instructions to the jury. In his jury charge, the trial judge took a common sense approach and adopted a tone of moderation and restraint. Given the nature of the trial, I am satisfied that this approach presented an appropriate example of proper conduct to the jury and further, that the instructions were adequate to offset the potential prejudice arising from the trial Crown's misconduct.

76Seventh, I note that, in the course of their discussions following the trial Crown's closing address, neither defence counsel nor the trial judge turned their attention to the possibility raised on appeal that the trial Crown's cross-examination and closing remarks concerning the appellant's conviction for the convenience store murder effectively removed from the jury's consideration the issue of the identity of the shooter in the convenience store murder. On the contrary, during colloquy, the trial judge indicated that, in cross-examining the appellant as he did, the trial Crown rightly corrected any suggestion that the appellant was merely a party to the earlier killing. [page791]

77However, the trial judge did not instruct the jury along those lines. Rather, as already noted, he told the jury that, if the accused had not mentioned the convenience store conviction, the Crown would not have been entitled to refer to it and that, in his view, that conviction was not of much probative value in judging the appellant's credibility [See Note 9 at the end of the document]. In addition, the trial judge told the jury that the evidence relating to the convenience store murder was relevant to the question of motive. While it may have been preferable for the trial judge to have told the jury explicitly that, in determining the identity of the convenience store shooter they could draw no conclusions from the prior conviction, in my view, that would have been obvious to the jury based on the instructions the trial judge gave.

78Eighth, the jury deliberated for 15 hours and asked pertinent questions, including requesting an explanation for why Lisa Brown did not testify and asking for evidence read-backs concerning the following issues: the identity of the shooter in the convenience store murder, the appellant's version of what happened when Dubois was shot, and Deslauriers's evidence about finding and disposing of the chainsaw. In my view, it is clear that the members of the jury were perceptive about the events at trial, and that they seriously considered the testimony they heard, the credibility of the witnesses, and the live issues for determination.

79In the circumstances, I do not accept the appellant's submission that the trial Crown's misconduct prejudiced his right to a fair trial and I would not give effect to this ground of appeal.

(iv) Did the trial judge err by admitting evidence of the appellant's failure to cooperate with the police and leaving it with the jury as evidence of consciousness of guilt?

80In the context of the many post-offence acts of the appellant, I see no error in the trial judge's decision to admit testimony that the appellant violently resisted police efforts to seize his clothing as evidence of after-the-fact conduct. On appeal, the appellant takes no issue with the legality of the police conduct in seizing the appellant's clothing. The appellant's other post-offence acts included: disposing of Dubois's body parts; burning Dubois's identification papers; burning Dubois's vehicle; running away from the scene of the arson; making misleading statements [page792] to various homeowners in Orleans; and hiding his bloodstained leather jacket in the snow.

81Seen against this background, the appellant's violent resistance to the lawful request that he remove his clothing was properly admitted as evidence of after-the-fact conduct. The active resistance was part of a pattern of hiding evidence and was, moreover, relevant to his claim that he only participated because Deslauriers forced him to do so.

(v) Did the trial judge err by failing to provide a proper Vetrovec warning regarding the evidence of Charbonneau and Deslauriers?

82The trial judge cautioned the jury in the following terms concerning the evidence of Charbonneau and Deslauriers:

I mention these -- what is commonly referred to as, sort of unsavoury witnesses. You know, people, and I just mention two for instances. Mr. Charbonneau who talked about his life in and out of prison in his arrest and so on. He recalled the conversation that he had with the accused. We've heard as well of Mr. Deslauriers who readily admitted that, yes he had a farm up there and he was growing marijuana and he was in the business of -- what he said, selling marijuana and so on. And their regular habits were, you know, drinking beer and smoking or taking coke or whatever else. It's quite a lifestyle. At the same time as the [sic] drawing their welfare cheques and cheques for taxes. So, what is commonly referred to as characters, or you know, unsavoury witnesses.

Obviously when you have that type of witness, you've got to exercise a bit more caution in looking at their evidence. Often the courts say that it's juries and judges when they're looking at evidence of people like that, they appreciate having or they take some comfort in having what is called corroborative evidence. Evidence to corroborate or sustain their evidence. In other words, what I mean by corroboration is that corroboration means evidence that is independent of the witness. You know, evidence that is coming independent of the witness. And it must as well implicate the accused . . .

For instance some of the more obvious evidence is that, for instance, the accused said that the victim Marc Dubois was shot in the motor vehicle. Well, there is a lot of corroborative evidence of that when you look at the forensic evidence which identified the victim's blood all over the motor vehicle. And in fact you recall the evidence that there was -- it appeared to be the type of blood spatter spread out on the windshield which was indicative of a gunshot or high velocity projectile going through the head of the victim and making his blood spatter pattern on the windshield. That is corroborative evidence which corroborates certain evidence, for instance of the accused in this case.

So what I'm saying to you is that when you're looking at evidence of people like that, you would look at or take comfort -- it's not necessary, it's not obligatory, but often judges and juries take comfort in the fact that there is some corroborative evidence of such individuals. That's all I'm going to say [page793] to you about this because I just wanted to basically explain to you the question of corroboration.

83The appellant raises two issues concerning this instruction. First, he contends that it was incumbent upon the trial judge to provide a strong Vetrovec warning concerning both Charbonneau and Deslauriers and to instruct the jury that it would be dangerous to convict based on their unconfirmed evidence. Second, he submits that the trial judge committed a reversible error by including the appellant as an example of the type of witness whose evidence should be approached with caution and supported by confirmatory evidence.

84In order to assess this ground of appeal, it is necessary to review briefly the evidence relating to the circumstances in which Charbonneau and Deslauriers provided statements to the police incriminating the appellant.

85In cross-examination, Charbonneau agreed that he told the police that he did not know anything about the convenience store robbery when they questioned him initially on January 24, 1994. However, he claimed that, on January 25, 1994, the police confined him in a cold cell for three hours, banged his head against the wall, roughed him up and threatened to charge him with being an accessory to Mr. Dai's murder. Following these events, Charbonneau gave a second statement to the police in which he implicated the appellant in the convenience store robbery and the death of Mr. Dai. The statement was written out in English although Charbonneau testified that he could only read English "un peu".

86Deslauriers testified that, about a week after he heard the appellant and Brown talking about killing Dubois, he saw a television news report showing a woman running from a burning car. He recognized the woman as Lisa Brown and the car as belonging to Dubois [See Note 10 at the end of the document]. A few days later, he discovered some of Brown's belongings in a snow bank outside the back door of his farm and his chainsaw "shined up like a brand-new chainsaw". Deslauriers said that he assumed that the appellant and Brown had used the chainsaw to dismember Dubois and therefore he subsequently hid the chainsaw in a snow bank at his grandmother's farm.

87On January 27, 1994, the police came to see Deslauriers at his girlfriend's home. They asked him some questions about Brown, and Deslauriers told them that Brown had left some [page794] possessions at his farm. Deslauriers went with the police to the farm. On January 28, 1994, the police arrested Deslauriers at his grandmother's home and charged him with possession of the .357 magnum revolver that they found at his farm. After being told that the police could help him if he was not involved in Dubois's killing, Deslauriers provided statements to the police implicating the appellant in both the Dai and Dubois killings.

88While I acknowledge that trial judges have a broad discretion to decide whether a Vetrovec warning is required and to determine the form any warning should take, I accept the appellant's submissions that, at least with respect to Deslauriers, a stronger warning was required. Deslauriers's evidence was central to the Crown's position that Dubois's murder was planned and deliberate. It was also important to the Crown's position concerning the appellant's role in the convenience store killing and his motive to kill Dubois. Those factors, combined with his admitted role in hiding evidence relating to the Dubois murder, the circumstances surrounding his statement to the police, and inconsistencies between his trial evidence and his statements to the police made a stronger warning mandatory: see R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599, 82 C.C.C. (3d) 310; R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, 141 C.C.C. (3d) 321; and R. v. Armstrong, 2003 29258 (ON CA), [2003] O.J. No. 3610, 179 C.C.C. (3d) 37 (C.A.), leave to appeal refused [2003] S.C.C.A. No. 554. Such an instruction would have included language indicating that it was dangerous to act on Deslauriers's unconfirmed evidence and would have referred to the matters set out above, which gave rise to the danger.

89However, although I have concluded that the trial judge erred in failing to give a stronger caution, I am satisfied, for three reasons, that the verdict would not have been different had the trial judge given a proper warning.

90First, reading the charge as a whole, I am satisfied that the jury could have been under no misapprehension that they were to approach Deslauriers's and Charbonneau's evidence with caution. In addition to the warning referred to above, the trial judge provided the jury with standard instructions on assessing credibility, including considering any interest that a witness may have in the proceedings, and he reviewed the circumstances of their respective arrests when summarizing the evidence. He also referred to defence counsel's cross-examination of Deslauriers concerning the inconsistencies between his trial evidence and his statements to the police relating to the chainsaw.

91Second, had the trial judge given the jury a stronger warning, he no doubt also would have reviewed some, if not all, of the [page795] potentially confirmatory evidence that could have restored the jury's confidence in Charbonneau's and Deslauriers's evidence: see R. v. Armstrong, supra. Such a review would have included the following evidence, which, in my view, would have buttressed the witnesses' accounts:

-- Charbonneau and Deslauriers both testified that they did not know each other;

-- Charbonneau and Deslauriers both testified that they saw the appellant with an injured finger after the convenience store robbery;

-- Charbonneau and Deslauriers both testified about conversations with the appellant concerning how he injured his finger in which the appellant acknowledged that he was the shooter in the convenience store robbery;

-- Derek Day testified that the second robber took up a position just behind the front counter and stayed in place until after the fatal shots were fired. This evidence and the forensic evidence concerning the bullet lodged in the ceiling that had traces of the appellant's blood supported Charbonneau's and Deslauriers's testimony concerning the appellant's admission;

-- Charbonneau and Deslauriers both testified that the appellant was worried about Dubois because Dubois was nervous and talking too much; and

-- Deslauriers testified about a conversation between the appellant and Lisa Brown in which they said they had to kill Dubois that week because Dubois was supposed to be fingerprinted by the R.C.M.P. Dubois's employer confirmed that Dubois was working at R.C.M.P. headquarters in Ottawa moving furniture and that some of the workers had to undergo a security clearance. The appellant acknowledged that he was aware that Dubois was going to be fingerprinted.

92Third, this was an overwhelming case against the appellant. The appellant did not dispute that he was present when Dubois was murdered and dismembered, that he participated in placing Dubois's body parts in garbage bags and scattering them on the back roads in the surrounding area, that he tried to destroy evidence of Dubois's murder, and that the same gun that was used to kill Dubois was used 13 days earlier in a robbery [page796] that he and Dubois committed, in the course of which the proprietor was killed. Moreover, there was compelling evidence that the appellant unsuccessfully tried to run from Orleans by asking two residents to call a taxi, that he lied to the police about having car trouble and being beaten by two strangers, and that he was the shooter in the convenience store robbery and had maintained control of the gun ever since.

93While I agree that there was also evidence (including the appellant's evidence) pointing to Deslauriers's involvement in the killing, in my view, it did not displace the strong evidence implicating the appellant, but rather suggested only that Deslauriers may also have been involved.

94Given all of these facts, I conclude that the verdict would necessarily have been the same had a stronger Vetrovec warning been given.

95Turning to the appellant's submission that the trial judge committed reversible error by including the appellant as an example of the type of witness whose evidence should be approached with caution and supported by confirmatory evidence, I agree that it would have been preferable had the trial judge not referred to the appellant during the course of this instruction. However, I do not accept the appellant's submission that the trial judge included the appellant as an example of the type of witness whose evidence should be approached with caution. Rather, the trial judge referred to the appellant's evidence as an example to illustrate the principle of corroboration. Particularly when read in the context of the entire charge, which included clear instructions concerning the presumption of innocence, I see no realistic possibility that the jury would have concluded that they should look for corroboration concerning the appellant's evidence.

96I would not give effect to this ground of appeal.

(vi) Did the trial judge err by failing to provide a proper limiting instruction to the jury concerning the use they could make of Deslauriers's evidence that the appellant told Deslauriers that he (the appellant) had killed and dismembered a man?

97The appellant concedes that Deslauriers's evidence that the appellant told him he had, on an earlier occasion, killed and dismembered another person, was properly admissible to permit Deslauriers to explain why he disposed of the chainsaw. Neither the Crown nor the defence urged the jury to use this evidence for an impermissible purpose. While it may have been preferable for [page797] the trial judge to have given a specific limiting instruction with respect to this evidence, the trial judge's strong caution against propensity reasoning was adequate for this purpose, and the jury would have understood from those cautions that they could not rely on this evidence for an improper purpose.

98I would not give effect to this ground of appeal.

IV. Disposition

99Based on the foregoing reasons, I would dismiss the appeal.

Appeal dismissed.

APPENDIX A

. . . Keep in mind as well, that it is rarely possible to prove anything with absolute certainty. So the burden on the Crown is only to prove guilt beyond reasonable doubt. You know, this is not a question -- you'll never get a case, you know, in the real world, where you say two plus two is four. That's not the way it works in a trial and that's not the way it works in real life and yet, society functions and you function all of your life. You're experienced people by making value judgments on evidence. And nobody has come up to you every time and say this is failsafe, you know, it -- this is for sure. You listen to the evidence. You hear one side of the story. You hear the other side of the story. And then, you make value judgments.

When I spoke of reasonable doubt, I use the words in their ordinary natural meaning and not as legal terms having some special connotation. A reasonable doubt is an honest and fair doubt based upon common sense. It is a real doubt and not something that is imaginary or frivolous, you know. You've got to be careful that you don't get into the area of imaginary and start fantasizing or being frivolous about certain areas of doubt. You know -- and I'm sure that this is not going to be the case here. But you don't want people getting into areas of frivolous doubt which sometimes are conceived by jurors who are trying to avoid their duty. I'm sure this is not going to be the case here.

Basically when you're looking at these various principles, presumption of innocence, burden of proof, reasonable doubt, what it boils down to basically is this. If you believe the accused, then you must acquit. If you don't believe the accused and are still left with a reasonable doubt, then you must acquit as well. It is only if you disbelieve the accused and you're satisfied on the Crown's evidence beyond reasonable doubt, that you convict. So, basically that's the step that you go through.

APPENDIX B

Instructions concerning the trial Crown expressing his opinion

(a) The trial judge's opening remarks

You're the sole judges of the facts. You're supreme as far as the facts and the evidence is concerned. That means that your interpretation, what you decide [page798] on the evidence, when I talk about evidence I'm talking about what goes on from witnesses that are called here in this courtroom and the credibility, whatever witnesses you accept, or the credibility of witnesses, it's going to be up to you, not mine, or not that of counsel in this particular case.

Now the purpose of that opening is just to outline what the case will be. What he says, or what any counsel say, or what I say is not evidence. Keep that in mind. The evidence has got to come from the witnesses, or from other exhibits. There will be other exhibits here. But that's basically -- when we talk about evidence, that's what we're talking about. What counsel and what I say about the evidence is not evidence.

(b) The trial judge's comments that followed the trial Crown's opening address

THE COURT: Now I just want to repeat again to you, you heard the opening address by the Crown. Keep in mind, and he's mentioned that and I mention it to you again, what the Crown says to you about the opening is intended to be an outline. It is not evidence. And he said it to you and I emphasize it again to you. What the Crown has said to you is not evidence. He [sic] the Crown has the onus of calling evidence, which will support of course the comments and the allegations that he has made in his opening address. The evidence is going to come from witnesses and not from the mouth of the Crown or from any other counsel. So that -- just keep that in mind that first of all what he said about the case is to help you follow the series of events. As you can see there are certain complications; you know, they're somewhat complicated events that have taken place in this case and he's outlined this to you. But what he said is not evidence. The onus is on the Crown to prove to y ou beyond a reasonable doubt of the events as he has explained them to you through the mouth of witnesses. The witnesses will be putting the pieces together. That is evidence. Not what the Crown or what any witnesses or what I say about the evidence. Okay.

(c) The trial judge's jury charge

. . . remember my views as to the significance of various parts of the evidence is in no way binding upon you. Nor is the opinion of counsel . . . What counsel says is not evidence -- or their opinion is not evidence. I will have something to say about that as we move along in this charge to you.

Now, as an example about opinions, we've had -- you've heard [the trial Crown] express an opinion. And this was done in different ways about the guilt of the accused. Well, basically it is not his opinion, like I say, or my opinion or the opinion of counsel. In fact, that is irrelevant. It is your opinion. You know, it is your function. Your opinion. Your decision on the verdict that is important and not the opinion of counsel. And by and large, if Crown counsel has expressed an opinion as to the guilt of the accused [page799] or said the accused is guilty it's my opinion that is irrelevant for you. That is something -- it's your decision. It's your decision on the fact whether this accused -- that is your job. You know, just like if we brought in an expert over here and there's a lot of people, you know, who today, sometimes some of these trials, it seems to be a battle of experts. You bring an expert and they try to tell us they're experts on this and that and that. And if we brought in an expert to tell us if on this evidence, he felt that the accused was guilty, well that is totally irrelevant to us. It's your job. That is why this accused has picked a jury. He wants to be judged by the community.

APPENDIX C

The next matter I want to discuss with you, principles of law and I've already touched upon it at an earlier time in the trial and that is -- you've heard evidence of criminal records of both the accused and certain witnesses and in fact the criminal record of the victim. But as far as a criminal record of an accused and witnesses are concerned, that can be considered by you for only one purpose and that is to judge the credibility or the truthfulness of the accused as a witness or of the other witnesses as a witness. The fact that such a conviction does not necessarily destroy or impair his or her credibility but it may indicate a lack of moral responsibility to tell the truth. It is simply one of the circumstances that you may take into consideration in weighing his or her trustworthiness as a witness. Obviously, you should consider the nature and the date of the conviction. Convictions relating to dishonesty tend to bear more directly upon the accused's credibility than do convictions for crimes not re lated to dishonesty. Similarly older convictions may have less bearing on the accused's testimony than recent convictions.

Finally, and I say this again and I intend to say a bit more about it later, I must warn you that you must not use the prior convictions as evidence that the accused committed the crime which he is now charged. You must not conclude that because [he] has been convicted of other crimes, that he is disposed or has a propensity to commit further crimes. The law does not permit you to do so. You can only consider the prior convictions, as I've said, in deciding the credibility of the accused and you will decide what weight if any should be given for the prior record of the accused on that matter.

You've heard as the evidence was called, you heard -- the evidence of the criminal record of the accused was brought out by his counsel . . . He went through the various -- then in cross-examination, you heard [the trial counsel] question him on his criminal record as well. And the accused in fact went on to mention about the conviction for the offence, the first offence in the store, the robbery and the murder of Mr. Day [sic] in the store. He mentioned that himself.

I must warn you about that because this is obviously extremely prejudicial to the accused. Generally speaking, had the accused himself not mentioned this, the Crown would not have been entitled to mention that conviction for those offences, the ones that took place just a few months ago. And the law -- you know, in an attempt to be fair, the law is very strict on that. They say that evidence which is extremely prejudicial and has no probative value or very little probative value or the prejudicial effect far outweighs the probative value, generally is not admissible in a case. So that, by and large, even though the accused mentioned it, I don't think it's something that basically [page800] for purposes of judging his credibility, is of much probative value in this case here. The Crown, . . . during his closing address, spent some time talking about the criminal record. He talked about certain aspects of it were crimes of dishonesty. He talked about theft and fraud and so on. Then, he talked about the fa ct that there were crimes here involving violence and so on. It's possible that unwillingly he may have left the impression with you that because of his -- the accused's criminal record, that he was dishonest, that he was a thief, that he was not to be believed or that he had a propensity for violence, et cetera. The reason our law and the approach that we take on these various serious criminal offences is that we want you to judge the accused on the evidence, on what is called here, not on his background. Otherwise, you know, what we would do, we'd do like in some countries. Let's say you got a criminal record or you've been convicted of such and such an offence, you're not entitled to a trial. You're obviously guilty of this offence. You committed here, therefore you must have committed this or you committed a crime four years ago, you must have committed this crime here. We don't do that. We proceed. And I've explained to you the question of presumption of innocence applies to an accused whethe r he's got a criminal record or not, the burden of proof, reasonable doubt, he's entitled to all of those things.

What I'm saying to you basically is that this accused, and the law is very clear on that, this accused must be judged on the evidence that you've heard in the witness box, the exhibits and so on, and not judged and say, well he committed an offence on another occasion, therefore he must have committed it here. I'm not saying that you can't look at the criminal record to judge whether you believe him in certain areas or others on the question credibility. That's okay. But what you must not do is conclude that he has a propensity and therefore because he committed a crime here, he must have committed a crime elsewhere. I think I'm clear on that. That the law does not permit you to do that.

Notes

Note 1: The appellant abandoned a ground of appeal relating to the trial judge's failure to admit evidence of the criminal records of Charbonneau and Deslauriers after those two witnesses had testified.

Note 2: R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811, 67 C.C.C. (2d) 1.

Note 3: The trial judge's specific instructions on reasonable doubt are set out in Appendix A.

Note 4: R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397.

Note 5: R. v. Parsons (1993), 1993 3428 (ON CA), 15 O.R. (3d) 1, 84 C.C.C. (3d) 226 (C.A.).

Note 6: R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, 41 C.C.C. (3d) 385.

Note 7: See Appendix B.

Note 8: The trial judge's instructions on these issues are set out in Appendix C. However, I note that there appear to be errors in the transcript.

Note 9: The trial judge's instructions on this issue are set out in Appendix C.

Note 10: Although Deslauriers testified that he did not know Dubois, he did say that he had seen him on one occasion at his farm.