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

73 O.R. (3d) 481

[2004] O.J. No. 4880

Docket: C12090

Court of Appeal for Ontario

Moldaver, Sharpe and Gillese JJ.A.

December 2, 2004

Criminal law -- Evidence -- Identification evidence -- Post- hypnosis evidence -- Accused convicted of murder -- Accused arguing evidence of identification witnesses whose memories were enhanced following hypnosis should be inadmissible as unreliable -- Before hypnosis P stating saw deceased with other people but didn't know who they were -- After hypnosis P providing more detail about persons present with deceased and later identifying accused from photographic line-up -- Trial judge finding that hypnotist complying with current law and finding probative value of identification evidence outweighing prejudicial effect -- Trial judge not erring in admitting evidence of post-hypnosis identification -- No blanket exclusionary rule against hypnotically enhanced evidence -- Trial judge's factual findings entitled to appellate deference and no basis to interfere with ruling.

Criminal law -- Trial -- Charge to jury -- Alibi -- Crown alleging accused's alibi for murder fabricated -- Trial judge instructing jury that could infer guilt if they concluded alibi fabricated or concocted -- Trial judge erring in failing to instruct jury that independent evidence, apart from evidence showing alibi false, required before they could draw inference of guilt from alleged fabrication of alibi -- Trial judge failing to instruct jury what could constitute independent evidence -- Particularly significant error as single piece of independent evidence -- Instructions may have led jury to conclude that they were to consider only evidence he reviewed not entire body of evidence when assessing strength of the alibi -- Serious misdirection going to heart of defence -- Not appropriate to apply proviso -- New trial ordered.

Criminal law -- Trial -- Charge to jury -- Identification evidence -- Trial judge giving standard warning on dangers of identification evidence and extensively repeating witnesses' evidence -- Significant frailties identification evidence requiring specific direction regarding its weaknesses -- Witnesses' descriptions and level of detail changed over time -- Some features of D's description arguably inconsistent with accused's appearance and D's description of person's clothing changed considerably among his statements and evidence -- D had brief glimpse of stranger -- P saw photograph of accused in newspaper before made identification and provided almost no details when describing persons she saw with deceased until after hypnosis -- P expressed lack of certainty when selecting accused from photographic line-up -- N having brief view of stranger's profile through partially obstructed view at night -- Police showing N single photograph of deceased which she identified as woman she sa w -- N said memory somewhat improved following hypnosis -- Trial judge's failure to craft warning to highlight specific frailties in identification evidence constituting serious error that may have affected verdict -- Accused's appeal from conviction for murder allowed and new trial ordered. [page482]

Criminal law -- Appeals -- Fresh evidence -- Accused convicted of murder -- Accused seeking acquittal -- Accused seeking to adduce fresh evidence regarding another suspect, newly disclosed material allegedly undermining the credibility of some witnesses and allegedly demonstrating either consciousness of innocence or undermining some aspect of Crown's case regarding motive -- Fresh evidence justifying acquittal must meet high standard of being clearly decisive of innocence -- Assuming proposed evidence admissible, fresh evidence not meeting that threshold considered singly or cumulatively -- Acquittal not appropriate -- New trial ordered on other grounds.

Criminal law -- Appeals -- Procedure -- Stay of proceedings -- Accused seeking stay of proceedings for first time during oral argument -- Court noting without notice containing some specifics of alleged harm occasioned to accused Crown could not properly respond to stay application -- Accused neither providing Crown with notice nor details of specificity as to basis for stay -- Nothing in record to justify granting stay of proceedings even if notice and detail have been provided by accused -- No evidence of police or prosecutorial conduct justifying stay of proceedings -- Any prejudice occasioned by newly disclosed material could reasonably be removed by ordering new trial at which fuller record would be available to trier of fact -- Application for stay of proceedings dismissed and new trial ordered.

Criminal law -- Trial -- Charge to jury -- Fairness and balance -- Trial judge's charge to jury in murder case unduly promoting Crown's case and had effect of denigrating case for defence -- Instructions lacking objectivity to assist jury in reaching true verdict -- Tone used in rhetorical questions and lengthy dissection of marginal aspect of defence holding defence up to ridicule and contempt -- Review of evidence of motive barely mentioning evidence relied upon by defence to counteract Crown theory -- Significant errors in law in charge regarding identification evidence and fabricated alibi -- Not appropriate case for application of proviso -- New trial ordered.

Criminal law -- Trial -- Competence of defence counsel -- Accused arguing on appeal that trial counsel incompetent in murder trial -- Deceased's body never recovered -- Counsel at trial not conceding that missing girlfriend of accused was dead -- Counsel alternatively arguing that deceased might have committed suicide -- By end of trial evidence overwhelming that victim was dead and that she was murdered -- Defence counsel spending little time in closing address on either theory -- Counsel at trial not shown to lack competence even if didn't pursue best trial strategy, accused not satisfying high threshold needed to prove counsel incompetent.

Criminal law -- Appeal -- Grounds -- Unreasonable verdict -- Accused convicted of murder of girlfriend whose body was never located -- Crown's case entirely circumstantial including evidence of motive, opportunity and consciousness of guilt (post-offence conduct) -- Accused arguing identification evidence weak and evidence left as consciousness of guilt not capable of supporting that inference -- Some evidence contradicting Crown's case regarding motive and some evidence said to demonstrate consciousness of innocence -- Sufficient evidence for trier of fact to convict depending on what inferences drawn [page483] from conflicting evidence -- Verdict not unreasonable -- New trial ordered on other grounds.

The accused was convicted of the second degree murder of his girlfriend. The position of the Crown was the accused killed the victim on the evening of June 19, 1990 between the hours of 5:40 p.m. and 7:00 p.m. because of the victim's decision to terminate their relationship, and that he moved her body from the park where she was killed to Lake Scugog by car a few days later and disposed of it in a place that was still unknown. The Crown's case was entirely circumstantial. It consisted of three bodies of evidence: opportunity, motive and after-the-fact conduct indicative of guilt. The evidence of two eyewitnesses was particularly important: P's, regarding the accused's opportunity to commit the murder and D's, with respect to the allegation of after-the-fact conduct (consciousness of guilt) that the accused drove the deceased's car a few days after her disappearance in the Lake Scugog area to dispose of her body.

P testified that she saw the accused seated beside the victim between 5:40 and 5:45 p.m. on the day she disappeared. She was initially unable to identify, or provide more than a very general description of, the man she saw with the victim. She later read a newspaper article about the victim's disappearance which strongly suggested that the accused was a suspect and which included a photograph of the accused. P underwent hypnosis about a month after seeing the victim and the man together. While under hypnosis, she elaborated significantly on her original descriptions of the victim's clothing and the man seated beside her. Following hypnosis, she identified the accused from a photo line-up as "looking like" the man she had seen seated next to the victim but she said that she wasn't completely certain. At trial, the Crown maintained that the man seated beside the victim was her killer, and the defence did not suggest otherwise.

D testified that he saw the accused driving the victim's car near Lake Scugog early in the morning on July 22. D first spoke with a police officer by telephone on July 1. Some aspects of that description arguably were not consistent with the accused's appearance at that time. D wasn't interviewed in person until several months later. There were some differences between those two statements and more between them and his evidence at the preliminary hearing. At the preliminary hearing D said for the first time that the person he saw had a beard. Before that evidence he had been shown a photograph of the accused taken when the accused hadn't shaved for several days.

A third witness, N, provided part of the Crown's case regarding motive. The night before the deceased's disappearance, N saw a woman and man arguing outside her house. She only saw the profile of the woman but identified the woman as the deceased from the single photograph that the police showed her. Her view was partially obstructed by trees. She was also hypnotized and her recollection of the car she saw that night was somewhat enhanced following hypnosis. She could not identify the man. This evidence, if accepted, contradicted the accused's statements to the police that he and the victim made love on the evening of June 17 and that their relationship was strong.

The accused did not testify at trial. His claims that his relationship with the victim was strong before her disappearance and that he was at home with his family at 5:40 p.m. on June 19 were conveyed to the jury through a series of pre-arrest statements made to the police and others which were introduced into evidence by the Crown. Defence counsel at trial did not concede that the missing woman was dead and suggested that if she was, she might have committed suicide. Members of the accused's family testified in support of his alibi. His mother [page484] also testified that he was at home during the hours that D made his observations of a man driving the deceased's car a few days after her disappearance. The accused appealed his conviction.

The accused argued that P's hypnosis-enhanced evidence should have been excluded as unreliable, that charge to the jury was unfair and unbalanced, that the charge to the jury regarding identification evidence and the allegedly fabricated or concocted alibi was in error, that his trial counsel were incompetent, and that newly disclosed evidence demonstrated his innocence. He also argued that even without the fresh evidence the verdict was unreasonable. During the appeal it was submitted for the first time that the proceedings should be stayed as an abuse of process, if an acquittal was not entered.

Held, the appeal should be allowed.

The trial judge did not err in admitting P's evidence. There is no blanket exclusionary rule with respect to post-hypnosis evidence. During a voir dire challenging the admissibility of P's hypnosis-enhanced evidence, the trial judge heard from defence and Crown experts regarding the appropriate use of hypnosis to enhance a witness' recollection. The experts agreed that hypnosis could be helpful if done properly and did not find fault with the technique used in this case. The trial judge found as a fact that the technique used was appropriate and that it complied with the requirements set out in current case law. The trial judge found that the hypnotist had followed appropriate procedures. His factual findings and his conclusion that the probative value of P's evidence outweighed its prejudicial effect were entitled to deference.

Juries must be cautioned about the risk of error inherent in eyewitness identification evidence. The trial judge in this case gave the jury a general, standard form "boilerplate" warning on the dangers inherent in eyewitness identification. In some cases, a general warning will suffice. However, the evidence of P, D and N contained significant frailties, and it was incumbent upon the trial judge to caution the jury as to those specific frailties. Furthermore, in the case of P, the trial judge should have cautioned the jury that P was only able to identify the accused after hypnosis, and he should have linked hypnosis with the potentially tainting factors which existed. The trial judge's failure to give the jury adequate instructions with respect to the eyewitness identification evidence of P, D and N constituted an error of law that could have affected the verdict.

The trial judge correctly told the jury that if they did not accept the accused's alibi or if it did not raise a reasonable doubt in their minds, they were to put it aside and consider the rest of the evidence. He correctly warned the jury that rejection of the accused's alibi did not mean that he was automatically guilty. However, after telling the jury that a fabricated alibi could be used as positive evidence of guilt, he made no mention of the fact that independent evidence was needed to ground a finding of fabrication; nor did he point out that the requirement for independent evidence meant evidence apart from evidence showing the alibi was false. His failure to include those instructions constituted error. Those deficiencies were compounded by the trial judge's further failure to identify for the jury the evidence that was capable of constituting independent evidence of fabrication, which was particularly important as there was only one such piece of evidence.

The trial judge misdirected the jury as to the manner in which alibi evidence was to be assessed. He erroneously restricted the jury to the evidence "touching and regarding the question of alibi" in deciding whether they could act on alibi evidence to acquit. In assessing the accused's evidence, the jury was entitled to [page485] consider and weigh this evidence in the context of all of the evidence. This misdirection to the jury was serious because it went to the heart of the accused's defence and it could not be said that the verdict would necessarily have been the same had the jury been properly instructed.

The trial judge's charge to the jury lacked fairness and balance. Read as a whole, it unduly promoted the Crown's case and denigrated the defence's case. For example, the trial judge engaged in rhetorical questions which, taken cumulatively, indicated his contempt for the defence position. He reviewed in painstaking detail the evidence that supported the Crown's position on motive, and virtually ignored the evidence supportive of the accused's position that his relationship with the victim was far from over. His instructions on consciousness of guilt were entirely one-sided. The charge compromised the accused's right to a fair trial. This was not a case in which the curative proviso could be applied to uphold the conviction.

The accused argued that his trial counsel were incompetent because they refused to concede that the missing woman was dead and argued alternatively that she may have committed suicide. Defence counsel gave these arguments little emphasis in the closing address. Although these arguments may not have been the best tactical choices, this conduct did not demonstrate the high threshold required to prove incompetence of counsel.

The accused argued that the verdict was unreasonable as he challenged the inferences the Crown sought to draw from evidence regarding motive, opportunity and after-the-fact (consciousness of guilt) evidence and relied on other evidence that support the defence position that he did not kill his girlfriend and the significant frailties associated with evidence of the eyewitnesses P and D. However, it is for a new jury to determine what inferences are to be drawn from the conflicting evidence and it would go well beyond the proper scope of appellate review to conclude that this was an unreasonable verdict: there was evidence upon which a properly instructed jury could convict.

The accused sought to have admitted as fresh evidence affidavits indicating that there had been non-disclosure of a number of pieces of evidence or statements. It must be recalled that this trial took place only weeks after the disclosure rules had been significantly altered by Stinchcombe and that all of the pre-trial disclosure was made under the previous law and practices. The accused also sought to adduce evidence implicating Paul Bernardo as an alternative suspect. Assuming that the fresh evidence was admissible and considering it together with the trial record, this is not a case in which the accused's fresh evidence has met the high threshold of demonstrating decisively that the accused is innocent. Therefore a new trial rather than an acquittal is the appropriate remedy to the accused.

For the first time, during the argument of the appeal, the accused sought a stay of proceedings as alternative relief. The harm allegedly justifying a stay was not specifically enunciated. The Crown argued that the lack of notice of this argument prevented it from putting an evidentiary record before the court upon which to make a just determination of the stay application. The accused failed to give the Crown adequate notice of this argument nor sufficient specifics to respond fully. However, even if notice was not an issue, there is nothing in this record to justify the draconian remedy of a stay of proceedings. To the extent that the accused was prejudiced by the non-disclosure, a new trial will provide a sufficient remedy.

APPEAL by the accused from the conviction for second degree murder by O'Driscoll J. of the Superior Court of Justice dated March 31, 1992.

[Table of contents omitted. Please see original source] [page487]

Cases referred to People v. Shirley, 723 P.2d 1354 (Cal. 1982); R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15, 184 D.L.R. (4th) 193, 252 N.R. 204, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1; [page486] R. v. Brand (1995), 1995 1540 (ON CA), 98 C.C.C. (3d) 477, 40 C.R. (4th) 137 (Ont. C.A.); R. v. Canning, 1986 20 (SCC), [1986] 1 S.C.R. 991, 74 N.S.R. (2d) 90, 30 D.L.R. (4th) 767, 68 N.R. 80, 180 A.P.R. 90, 27 C.C.C. (3d) 479; R. v. Clark (1984), 1984 1177 (AB KB), 32 Alta. L.R. (2d) 163, 10 D.L.R. (4th) 303, 13 C.C.C. (3d) 117, 40 C.R. (3d) 183 (Q.B.); R. v. Fengstad (1994), 1994 240 (BC CA), 27 C.R. (4th) 383, [1994] B.C.J. No. 80 (C.A.); R. v. H. (R.T.) (2001), 2001 14562 (ON CA), 56 O.R. (3d) 119, 159 C.C.C. (3d) 180 (C.A.); R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, 157 N.S.R. (2d) 161, 143 D.L.R. (4th) 433, 207 N.R. 246, 462 A.P.R. 161, 113 C.C.C. (3d) 1, 4 C.R. (5th) 280; R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128, 20 D.L.R. (4th) 651, 61 N.R. 159, [1985] 6 W.W.R. 127, 21 C.C.C. (3d) 7, 47 C.R. (3d) 193; R. v. Keane (1977), 65 C R. App. R. 247 (C.A.); R. v. Leduc (2003), 2003 52161 (ON CA), 108 C.R.R. (2d) 337, 176 C.C.C. (3d) 321, 18 C.R. (6th) 167, [2003] O.J. No. 2974 (C.A.); R. v. O'Connor (2002), 2002 3540 (ON CA), 62 O.R. (3d) 263, 100 C.R.R. (2d) 164, 170 C.C.C. (3d) 365, 7 C.R. (6th) 205, [2002] O.J. No. 4410 (C.A.); R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, 50 C.C.C. (2d) 193; R. v. Proulx (1992), 1992 3362 (QC CA), 11 C.R.R. (2d) 298, 76 C.C.C. (3d) 316 (Que. C.A.); R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, 4 O.R. (3d) 383n, 48 O.A.C. 81, 83 D.L.R. (4th) 193, 128 N.R. 81, 6 C.R.R. (2d) 35, 66 C.C.C. (3d) 321, 7 C.R. (4th) 117; R. v. Stinchcombe, 1995 130 (SCC), [1995] 1 S.C.R. 754, 96 C.C.C. (3d) 318, 38 C.R. (4th) 42; R. v. Stolar, 1988 65 (SCC), [1988] 1 S.C.R. 480, 52 Man. R. (2d) 46, 82 N.R. 280, [1988] 3 W.W.R. 193, 50 C.R.R. 397n, 40 C.C.C. (3d) 1, 62 C.R. (3d) 313 (sub nom. R. v. Nielson and Stolar); R. v. Taillefer (1995), 1995 4592 (QC CA), 100 C.C.C. (3d) 1, 40 C.R. (4th) 287 (Que. C.A.) [Leave to appeal to S.C.C. refused ( 1996), 199 N.R. 80n]; R. v. Taillefer, [2003] 3 S.C.R. 307, 313 N.R. 1, 114 C.R.R. (2d) 60, 2003 SCC 70, [2003] S.C.J. No. 75; R. v. Trochym (2004), 2004 1262 (ON CA), 71 O.R. (3d) 611, 188 O.A.C. 330, 186 C.C.C. (3d) 417, 24 C.R. (6th) 388, [2004] O.J. No. 2850 (C.A.); R. v. Turnbull, [1976] 3 All E.R. 549, [1976] 3 W.L.R. 445 (C.A.); R. v. Young (1984), 1984 2145 (ON CA), 46 O.R. (2d) 520, 3 O.A.C. 254, 10 C.R.R. 307, 13 C.C.C. (3d) 1, 40 C.R. (3d) 289 (C.A.); State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981), modifying 173 N.J. Super 333, 414 A.2d 291 (1980); United States v. Valdez, 722 F.2d 1196 (5th Cir. 1984). Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(d) Authorities referred to Strong, J.W., et al., McCormick on Evidence, 5th ed. (St. Paul: West Publishing, 1999)

James Lockyer, Brian H. Greenspan, Joanne McLean, Sharon Lavine, for appellant. Brian McNeely, John Corelli, Gillian Roberts, Howard Leibovich, for respondent.

BY THE COURT

I. INTRODUCTION

[1] Robert Baltovich appeals from his conviction for second degree murder in connection with the death of Elizabeth Bain. He submits that his conviction constitutes a miscarriage of justice and [page488] that it should be overturned. Of the many grounds of appeal that he has raised, some relate to errors made at trial and some are tied to fresh evidence that he seeks to have admitted.

[2] Overall, Mr. Baltovich contends that he did not receive a fair trial and that he was wrongfully convicted. He asks us to right that wrong by overturning the verdict of the jury as unreasonable and substituting a verdict of acquittal. Alternatively, he submits that we should enter a judicial stay of proceedings and spare him the ordeal of a second trial. Finally, as a last resort, he asks that we quash his conviction and order a new trial.

[3] For reasons that follow, we agree with the appellant that he did not receive a fair trial. Our chief concern in that regard lies with the trial judge's charge to the jury. Unfortunately, it lacked fairness and balance. Read as a whole, it unduly promoted the Crown's case and effectively ignored and denigrated the case for the defence. Additionally, the charge contained significant errors of law that were prejudicial to the appellant. This is not a case in which the curative proviso can be applied to sustain the conviction. Accordingly, the conviction cannot stand.

[4] With respect to remedy, the appellant has not persuaded us that he is entitled to an acquittal. In so concluding, we have tested the verdict against both the trial record and the enhanced record on appeal. We also reject the appellant's alternative submission that a judicial stay of proceedings should be ordered. The record does not support that exceptional remedy. In all of the circumstances, we are satisfied that a new trial is the proper remedy and the one to which the appellant is entitled. Accordingly, we would allow the appeal, set aside the conviction and order a new trial.

II. OVERVIEW

[5] In view of our conclusion that there must be a new trial, we have kept our review of the evidence to a minimum. Details are provided only where necessary to flesh out a particular ground of appeal.

[6] On Tuesday, June 19, 1990, Elizabeth Bain went missing. She has not been heard from since and her body has never been found. Although not conceded at trial, the appellant now acknowledges that Ms. Bain is dead and that she died as a result of a culpable homicide. He further accepts that she was murdered. Accordingly, the identity of her killer is the sole issue of concern.

1. Position of the Crown

[7] The Crown has consistently maintained that the appellant killed Ms. Bain on the evening of Tuesday, June 19, 1990 between [page489] the hours of 5:40 p.m. and 7:00 p.m. He did so because of Ms. Bain's decision to terminate their relationship which, by that time, had been ongoing for about a year and a half. Obsessed with Ms. Bain and driven by a belief that if he could not have her, nobody would, the appellant killed her in a state of jealous rage. Thereafter, in the days and weeks that followed, he took various measures designed to mislead the police and shield himself from detection. Foremost among them was his activity in the early morning hours of Friday, June 22. It was then, according to the Crown, that he retrieved Ms. Bain's body from Colonel Danforth Park [See Note 1 at the end of the document] where he killed her, and moved it to Lake Scugog, a distance of about 45 minutes by car. There, he disposed of her body in a place that to this day remains a mystery.

[8] The Crown's case against the appellant was entirely circumstantial. It consisted of three bodies of evidence: opportunity, motive and after-the-fact conduct indicative of guilt. Within that mix, the evidence of two witnesses took on special significance -- Ms. Marianne Perz with respect to opportunity and Mr. David Dibben with respect to after-the-fact conduct.

[9] Commencing with opportunity, Perz testified that on June 19 at 5:40 p.m., she saw the appellant and Ms. Bain seated together at a picnic table near the tennis courts at the Scarborough campus. The appellant denied being with Ms. Bain at that time. He claimed that he was at home with his family.

[10] At trial, the Crown maintained that the man seated beside Ms. Bain was her killer. The defence did not suggest otherwise. Thus, if accurate, Perz's evidence virtually sealed the appellant's fate.

[11] Secondary evidence of opportunity was provided by Mr. Kaedman Nancoo, a student who attended the Scarborough campus and who knew the appellant and Ms. Bain. Nancoo testified that on June 19 between 5:00 p.m. and 5:30 p.m., he observed the appellant in the weight room at the Scarborough campus. If Nancoo's testimony was accurate, his evidence lent credence to Perz's testimony and contradicted the appellant's evidence that he was at home with his family.

[12] On the question of motive, there was evidence from which the jury could find that the appellant was jealous, possessive and controlling and that he killed Ms. Bain because of her decision to end their relationship. The evidence took various forms, including entries in Ms. Bain's diary, testimony from various witnesses [page490] describing Ms. Bain's hostile attitude towards the appellant and her desire to end their relationship, and first-hand observations of angry confrontations between the appellant and Ms. Bain on the weekend preceding her disappearance.

[13] With respect to after-the-fact conduct, David Dibben testified that early in the morning of Friday, June 22, he observed the appellant driving Ms. Bain's car at a location near Lake Scugog. At that time, Ms. Bain had been missing for several days and the appellant had consistently denied knowing of her whereabouts or the whereabouts of her car. Later that day, at about 2:30 p.m., Ms. Bain's car was discovered on Moorish Road in Scarborough. In it, the police found bloodstains matching Ms. Bain's blood. The pattern of staining revealed that a body had been dragged into the car through the passenger door. In the circumstances, if Dibben's evidence was accurate, it too virtually sealed the appellant's fate.

[14] In addition to Dibben's evidence, there was other evidence of after-the-fact conduct tending to show the appellant's guilt. For example, depending on the jury's assessment of it, there was evidence that the appellant secreted or destroyed evidence, that he attempted to have Kaedman Nancoo falsify his testimony and that he had knowledge of material facts that would only have been known by Ms. Bain's killer.

[15] Without elaborating further, it is fair to say that in assessing the strength of the Crown's case, the evidence of Perz and Dibben took on special significance. That said, the overall strength of the Crown's case did not hinge upon the jury's assessment of their evidence in isolation. Rather, it depended on the jury's assessment of their evidence in the context of the whole of the evidence, including a host of facts and circumstances that individually and collectively pointed to the appellant as Ms. Bain's killer.

2. Position of the Appellant

[16] The appellant has consistently denied any involvement in Ms. Bain's disappearance or her death. Although he did not testify at trial, his position was conveyed to the jury through a series of pre-arrest statements made to the police and others. Those statements were introduced into evidence by the Crown and they form part of the trial record.

[17] On the issue of opportunity, the appellant maintained that he was not the one who killed Ms. Bain because at 5:40 p.m. on June 19 (when she was seen by Marianne Perz with the man said by the Crown to be her killer) he was at home with his family. His evidence to that effect was confirmed by several family members. [page491]

[18] On the issue of motive, the appellant claimed that prior to her disappearance, he had no reason to believe or even suspect that Ms. Bain had decided to terminate their relationship. On the contrary, while their relationship may have had its ups and downs, on balance, he had no reason to doubt her love for him. Indeed, he firmly believed that some day they would marry. To the extent that her diary entries, particularly the last one dated June 16 [See Note 2 at the end of the document], seemed to suggest otherwise, he had no knowledge of such entries prior to her disappearance. Moreover, taken at their highest, they showed that Ms. Bain's feelings towards him vacillated throughout their relationship, sometimes for the better, sometimes for the worse.

[19] As for the witnesses who described angry confrontations between him and Ms. Bain on the weekend before her disappearance, they were simply mistaken in their identification. No such incidents occurred.

[20] The appellant also pointed to a number of witnesses who supported his belief that Ms. Bain loved him and had no intention of terminating their relationship. For example, Ms. Bain's mother, Julita, testified that prior to Elizabeth's disappearance, she had no reason to doubt the soundness of her daughter's relationship with the appellant. She could tell that her daughter and the appellant were very much in love. Arlene Coventry, one of Elizabeth's best friends, also testified that she had no reason to doubt the integrity of Elizabeth's relationship with the appellant.

[21] In short, the appellant denied having a motive to kill Ms. Bain. He loved her very much and the thought of harming her was the furthest thing from his mind.

[22] On the subject of after-the-fact conduct, the appellant sought to counter the Crown's allegations by pointing to his co-operation with the police and his efforts to find Ms. Bain. Far from trying to mislead the authorities, he had done everything he could to assist them. As well, he denied attempting to influence witnesses or conceal evidence. Those who claimed otherwise were mistaken in their recollection.

[23] So too were the authorities mistaken in their belief that he had moved Ms. Bain's body to Lake Scugog in the early morning hours of Friday, June 22. To the extent that David Dibben claimed otherwise, he was mistaken in his identification. If Ms. [page492] Bain's car was in the Lake Scugog area, which it may well have been, it was there on Wednesday morning June 20, not Friday morning June 22. That is what John Elliott, another Crown witness, recalled after having his memory enhanced through hypnosis. That evidence, along with Julita Bain's evidence confirming that she spoke to the appellant at his home on Wednesday morning at about 6:30 a.m., meant that he could not have been the person driving Ms. Bain's car when it was spotted near Lake Scugog.

[24] In sum, the appellant maintained that he was innocent and that the Crown's case against him rested on tenuous evidence that could not possibly support a conviction.

[25] Against that backdrop, we begin by addressing several grounds of appeal that require brief comment only. They involve the reputations of trial counsel and certain evidence that the appellant submits should not have been left to the jury as after-the fact conduct capable of establishing guilt.

III. MISCELLANEOUS GROUNDS OF APPEAL

[26] First, the appellant submits that Crown counsel's closing address was improper. We disagree. In our view, apart from the odd slip in which he may have expressed a personal opinion, used emotive language, or inadvertently misstated the evidence, Mr. McMahon's address did not exceed the bounds of propriety.

[27] Second, we reject the submission that defence counsel at trial (Mr. Engel and Mr. Gatward) were incompetent for failing to concede that Ms. Bain was dead and that she had been murdered. Evidence led at trial indicated that she might still be alive or that she might have taken her own life. Leaving it to the jury to decide those issues may not have been the best tactical decision, but not every tactical mistake translates into incompetence. Notably, in his closing address, Mr. Gatward did not stress either issue. Rather, he focused almost exclusively on the identity of Ms. Bain's killer. In the end, any harm flowing to the appellant from trial counsels' tactical decision would have been minimal. Accordingly, this ground fails.

[28] Third, we feel obliged to comment on the appellant's challenge to the trial judge's instructions on after-the-fact conduct. Of particular concern is his claim that much of the evidence left for the jury's consideration was not after-the-fact conduct capable of establishing guilt. As will be seen, we largely disagree with that submission.

[29] On the record at trial, we believe that there were only two items of evidence that should not have been left to the jury as after-the-fact conduct capable of establishing guilt. They are: [page493]

(1) the haircut that the appellant received in jail while his preliminary hearing was ongoing; and

(2) the telephone call made by the appellant's brother Paul to the police in the early morning hours of Monday, June 25.

[30] In our view, those items of evidence could not be used to infer guilt. The first was tenuous at best and the second was not linked to the appellant. Accordingly, they should not have been left for the jury's consideration.

[31] Before leaving this matter, we note that the law on after-the-fact conduct has changed considerably since the trial of this matter in 1992. The presiding judge at the new trial will, of course, be guided by the principles that have since been enunciated by this court and the Supreme Court of Canada. He or she will also decide what evidence the jury can properly consider as after-the-fact conduct capable of establishing guilt.

[32] We now turn to the issues arising from the eyewitness identification evidence and the trial judge's charge to the jury.

IV. EYEWITNESS IDENTIFICATION EVIDENCE

[33] The Crown led the evidence of several witnesses who identified the appellant or Ms. Bain at crucial times. As already mentioned, the two most important identification witnesses were Marianne Perz and David Dibben. Perz testified that she saw the appellant seated beside Ms. Bain at a picnic table near the tennis courts between 5:40 and 5:45 p.m. on Tuesday, June 19, 1990, the day Elizabeth disappeared. In his statements to the police, the appellant denied seeing Ms. Bain on June 19. Dibben testified that he saw the appellant driving Ms. Bain's car early in the morning on Friday, July 22 at the intersection of Highways 12 and 7A. The appellant denied driving Ms. Bain's car after her disappearance.

[34] Another witness, Suzanne Nadon, testified that in the early morning hours of Monday, June 18, she saw and heard Ms. Bain having an argument with an unidentified male. If accepted, Nadon's evidence contradicted the appellant's statements to the police that he and Ms. Bain made love on Sunday evening and that their relationship was strong. Nadon's evidence supported the Crown's theory that Ms. Bain had decided to break up with the appellant, thereby providing a motive for her murder.

[35] The appellant submits that the trial judge erred in admitting the evidence of Perz and that he erred in failing to give the jury an adequate warning with respect to certain frailties in the eyewitness identifications of Perz, Dibben and Nadon. The appellant raises a number of additional issues as to the treatment of [page494] eyewitness identification evidence, but in light of the conclusion we have reached with respect to the issues just identified, we find it unnecessary to address those additional issues.

1. Post-hypnosis Evidence

[36] The appellant argues that the evidence of Marianne Perz was inadmissible because it was hypnotically induced. For the reasons that follow, we find that this ground of appeal is without merit. First, however, we will set out the details surrounding Perz's evidence.

(a) Evidence of Marianne Perz

[37] In the summer of 1990, Perz was employed as a tennis instructor at the Scarborough College Tennis Club. Perz described Ms. Bain, whom she had known for ten years, as a good acquaintance. Perz did not know the appellant and had never seen him prior to June 19, 1990. On Saturday, June 23, after learning that Elizabeth had disappeared, Perz remembered seeing her on Tuesday, June 19. She realized that she might have been the last person to see Elizabeth alive. Perz contacted the police and gave a statement to Detective Anthony Warr. In her statement, Perz said that she had seen Elizabeth on Tuesday sitting at a picnic table near the tennis courts sometime between 5:30 and 6:15 p.m.:

I have known Lisa [Elizabeth] for years -- I am sure it was her -- I am very positive. She was wearing pants -- she was not wearing shorts -- she had dark colours on -- nothing bright -- her hair was back -- it was not in her face . . . There were other people at the table -- she was sitting on the near side of the table facing the courts between two other people, and there was at least one other person on the other side of the table.

[38] Perz described the woman on Elizabeth's right as being a white female. She had a very limited memory of the person sitting on Elizabeth's left: "The one on the left could have been the [sic] man -- he had dark hair -- I believe he was white -- I don't remember what he was wearing . . .". Perz added that the two females were "very plain looking", that the group seemed to be university students and to be together, but that they were not talking, just watching. She told the police: "I think I could recognize one or more of these people if I saw them again. I have never seen any of them there before. That's the first time I've seen Lisa all year."

[39] Perz was unable to provide any further details about the man sitting beside Elizabeth. On July 1, 1990, Perz read an article about Elizabeth's disappearance in the Toronto Sun. The article strongly [page495] suggested that the appellant was a suspect in Ms. Bain's disappearance and included a photograph of the appellant. During the period after Elizabeth's disappearance, Perz had also been speaking to members of the Bain family. She knew that they viewed the appellant as a suspect and that he was under surveillance.

[40] Perz spoke to the police again on July 8. She provided a more precise time when she had seen Elizabeth: "I now remember it was exactly 5:40 p.m." However, Perz was unable to provide any further details describing the man who had been sitting beside Elizabeth. She added: "I am not sure if I would recognize a picture of the man sitting with her. He was on her left side." Perz made no reference to the Toronto Sun photograph.

[41] On July 10, Perz agreed to be hypnotized by Dr. George Matheson. Detective Warr drove her to the hospital for the hypnosis session, a trip that took 40 minutes. Detective Warr had the July 1 Toronto Sun article with the appellant's photograph in the car. At trial, there was evidence that Perz saw this photograph on her way to Dr. Matheson's office, however, that fact is disputed in fresh evidence led by the Crown on appeal.

[42] Under hypnosis, Perz elaborated significantly on her descriptions of Elizabeth's clothing and the man seated beside her. She described the man as having short, straight dark hair and looking at Elizabeth:

Q. What do you notice about his face as he looks at her?

A. He's got something funny with his eyes. There's something about his eyes.

Q. What?

A. They're just. Small. I can't. There's something strange about them.

[43] Perz described the man as being "very white" and a little taller than Elizabeth. His face was unfriendly while Elizabeth looked happy. Initially, Perz could not remember the man's clothing but then, after further questioning, she provided further details:

Q. Is he dressed for class? Or dressed for tennis?

A. Not for tennis. Just regular type of running shoes sort of thing. He's wearing shorts. That's why she sticks out in my mind because she was wearing pants. Because he, I think he's wearing shorts. Somebody's wearing shorts. Uhm. She looked really friendly. She was really happy to see me. More than usual.

[44] Perz saw "a few dark colours" in the man's clothing"but there is a little bit of light, white colour in his clothes I think". He looked "just sort of mediocre weak". For the first time, she expressed "this feeling" that he was with Elizabeth "because he's [page496] so close". As the hypnosis progressed, Perz became more certain that Elizabeth was with the man. She continued: "He might be a little bit stocky in the legs. Just a little bit. Not too much. But he's short. He's not great looking. He's got these funny eyes. It's like I remember. I'm thinking. I'm trying." She also recalled for the first time that there were four other women near Elizabeth.

[45] Dr. Matheson told Perz at the end of the hypnosis session:

But even when your eyes are open and even when we are through, later on if you want to remember what he looked like or she looked like, all you have to do is close your eyes and look carefully and you'll be able to remember seeing both of them.

[46] After the hypnosis session, Detective Warr showed Perz a photo line-up comprised of 12 images. He produced his notes of the photo line-up:

Stated she believes she could pick out a photo of the man with Lisa.

[Warr]: Do you know Rob?

[Perz]: I have never met him. I saw a picture of him in the paper.

[Warr]: If I show you a group of photos, would you be able to pick out the man who was with Lisa [Elizabeth], if his photo is there? Rob's [Baltovich's] photo is in the group.

(Emphasis added)

[47] Perz pointed to photographs one and six and said: "These are the eyes." She then pointed to photograph number six, the appellant's photograph, but according to Warr's notes: "She didn't want to say for sure . . . . "

[48] Detective Warr then drove Perz to 42 Division where she gave a further taped interview. Previously, she had remembered Elizabeth's clothing as being dark colours. She now remembered Elizabeth was wearing a blouse with a pattern on it with some beige colouring. She described the man as seeming very gentle. Detective Warr asked her: "Was [the appellant] the man sitting on the picnic table with Lisa?" Perz hesitated and then responded: "It looked like it." She then told Detective Warr that photograph "6 is the closest".

[49] At trial, Perz testified that she had settled on photograph six by a process of elimination. She also stated that she recognized the appellant's photograph in the line-up from the Toronto Sun photograph, although she described the newspaper photograph as a "foggy sort of image of him".

[50] At trial, Perz gave a more complete description of Elizabeth's clothing:

In terms of what she was wearing, she was wearing dark pants, black shoes, a top that seemed to have a floral pattern, beige with some kind of a pattern [page497] print, it was to her elbows. And that seemed unusual to me, because it was such a hot day she would be wearing long pants, and the people around her were wearing shorts and T-shirts.

[51] Perz also testified than she thought Elizabeth might have been crying because she had no eye make-up and, for the first time, mentioned the possibility that Elizabeth might have had a barrette in her hair.

When I walked up, I noticed Elizabeth sitting there. The first thing that struck me is that Elizabeth sat up and smiled, and with her eyes really lighting up to me as if she was extremely happy and content to see me. It was a little unusual because Elizabeth is a very -- rather introverted, and very quiet, and obviously wouldn't be so aggressive per se and she smiled. I looked over and mouthed the words "hello".

And I noticed her hair was back, and I would have inferred from this it would have been held up in a barrette. She was sitting among people. There was a male on her left hand side, there were females on her right hand side.

[52] Perz testified that the man was "[c]lose enough they could have been touching, but certainly close enough that I interpreted that my feeling was that they were together, my gut feeling when I saw them".

[53] The man did not look at Perz. She believed he was wearing shorts. She thought there might have been four people altogether sitting at the table, including Elizabeth and the man beside her. At trial, Perz described the man seated beside Elizabeth in much the same way as she had under hypnosis although, for the first time, she added that he was "in his 20's". She agreed that she could be mistaken that the man was the appellant and explained in re-examination:

Well, you see, when I measure doubt, it is because I am measuring it against my identification of Elizabeth. I am one hundred percent sure because I knew Elizabeth before, so when I saw her I recognized her, and it was very different. And I can't give that same degree of accuracy to the person sitting beside her because I didn't know who that person was before, and the reason I can't do that, and in all honesty to Mr. Baltovich I am expressing that there must exist some uncertainty because I didn't know him before.

(b) Admissibility of Marianne Perz's evidence

[54] The appellant submits that the trial judge erred in admitting Perz's evidence. The appellant contends that her evidence should have been excluded on the ground that she was only able to identify the appellant after undergoing hypnosis.

[55] Perz was one of four Crown witnesses (the others being Kaedmon Nancoo, Suzanne Nadon and John Elliott) who were hypnotized with a view to enhancing their memories and whose evidence was canvassed on appeal. The issue of admissibility was [page498] addressed on a voir dire with respect to Perz's evidence. The trial judge's ruling that her evidence was admissible was then applied to the evidence of other witnesses who had been hypnotized. The jury was told that these witnesses had been hypnotized but the jury heard no expert evidence regarding post-hypnosis evidence. On the voir dire, Dr. Matheson (who had conducted the hypnosis sessions of all four witness) testified for the Crown. The defence called Dr. Peter Rowsell. Both witnesses testified that, if properly conducted, hypnosis is a scientifically valid procedure for attempting to refresh memory. Both experts also testified that, if not done properly, hypnosis could increase the danger of (1) confabulation (providing inaccurate details to fill in minor gaps in memory) and (2) susceptibility to suggestion. Dr. Rowsell also testified about "memory hardening", which occurs when a person has more confidence in a memory because of some intervening influence.

[56] The trial judge found as a fact that Dr. Matheson had followed appropriate procedures in conducting the hypnosis session in compliance with the standards set out in a leading American case, State v. Hurd, 173 N.J. Super 333, 414 A.2d 291 (1980), modified on reh'g, 86 N.J. 525, 432 A.2d 86 (1981), and adopted in R. v. Clark (1984), 13 C.C.C. (3d) 117, 10 D.L.R. (4th) 303 (Alta. Q.B.), at p. 125 C.C.C.:

1. The person conducting the hypnotic interview should be a qualified professional with training both in the use of hypnosis and expertise in psychiatry or clinical psychology.

2. The hypnotist must be independent of the party who requires his services. That is, he must be free to conduct the hypnotic interview in accordance with his professional standards rather than in concert with the party who employs him.

3. The hypnotist should be given only the minimum amount of information necessary to conduct the interview. This information should be communicated solely in written form.

4. The entire interview between the hypnotist and the potential witness should be recorded preferably on video- tape, but there should at least be a complete audio record.

5. The interview should be conducted with only the hypnotist and the subject present. If the party who employs the services of a hypnotist (whether the police or defence counsel), wishes to observe the interview, then arrangements will have to be made so that the interview can be viewed from another room by virtue of closed circuit television or whatever other mechanism is available.

6. Prior to the actual hypnosis of the subject, the hypnotist should conduct a lengthy interview of the subject to determine his medical history including information about the present or past use of drugs. The judgment and intelligence of the subject should be evaluated. [page499]

7. Prior to hypnosis, the hypnotist should elicit from the subject a detailed description of the facts surrounding the subject-matter of the hypnosis session as the subject is able to recall them at that point in time.

8. The hypnotist should pay careful attention to the form and manner of his questions, the choice of his words and the avoidance of body language so that he is not either intentionally or inadvertently providing the subject with information.

[57] The trial judge found further that, as appropriate procedures had been followed, the risks associated with memory recall had not been increased by Perz having undergone hypnosis and accordingly admitted her evidence. The trial judge concluded that the problems that may be associated with post- hypnosis evidence and the possibility that Perz's evidence was tainted should not prevent the jury from hearing the evidence as courts often admit evidence from witnesses whose recollection may not be entirely pristine. The trial judge held that it was for the jury to decide how much weight to give post-hypnosis memories as compared to other statements. As a result, the trial judge did not find "any unfairness" in allowing Perz to testify. Although the issue was framed in terms of the prejudicial effect "substantially" outweighing the probative value of the evidence, the trial judge's reasons demonstrate that he did not impose a higher standard for exclusion than that mandated by R. v. Seaboyer, [1991] 2 S.C.R. 577, 83 D.L.R. (4th) 193.

[58] In his factum, the appellant urges us to adopt a blanket exclusionary rule with respect to post-hypnosis evidence. However, shortly before this appeal was heard, a different panel of this court rejected that same argument: R. v. Trochym (2004), 71 O.R. (3d) 611, [2004] O.J. No. 2850 (C.A.). The appellant did not abandon the submission that there should be a blanket rule excluding post-hypnosis evidence, but he recognized that Trochym was binding on us and he framed his oral submissions accordingly. In light of Trochym, we would not give effect to the appellant's first argument.

[59] We turn to the appellant's alternative submission that Perz's evidence should have been excluded because its prejudicial effect outweighed its probative value. The appellant relies upon both American and Canadian authorities that point to the weaknesses and dangers of post-hypnosis evidence. By way of example, he cites: R. v. Taillefer (1995), 100 C.C.C. (3d) 1, 40 C.R. (4th) 287 (Que. C.A.), at pp. 21-22 C.C.C., Proulx J.A; John W. Strong et al., McCormick on Evidence, 5th ed. (St. Paul: West Publishing, 1999), vol. 1 at pp 771-76; People v. Shirley, 723 P.2d 1354 (Cal. 1982); and United States v. Valdez, 722 F.2d 1196 (5th Cir. 1984), at p. 1203. [page500]

[60] The dangers referred to in these authorities are well documented. As previously mentioned, these dangers have been identified as confabulation, susceptibility to suggestion and memory hardening. Expert testimony on the voir dire alerted the trial judge to those dangers and he considered them in arriving at his decision to admit Perz's post-hypnosis evidence.

[61] Manifestly, there are dangers associated with post- hypnosis evidence. The Seaboyer approach recognizes this and requires trial judges to carefully assess the value of such evidence, having regard to the facts and circumstances of each case. Where the evidence is important to the Crown's case and it involves an area such as eyewitness identification evidence that poses its own difficulties, added care will be in order to ensure that the proposed evidence is sufficiently reliable to warrant its reception.

[62] On the record before him, the trial judge was satisfied that the probative value of Perz's evidence outweighed its prejudicial effect. The trial judge's factual findings on the voir dire and his weighing of the probative value and prejudicial effect of the evidence must be accorded deference on appeal. We are not persuaded that there are grounds for appellate interference with his ruling to admit Perz's evidence.

[63] That said, it is apparent from the positions taken before us that at the new trial, the admissibility of the post- hypnosis recollections of Perz and others will be contested. If that occurs, it will be for the trial judge to assess the question of admissibility afresh having regard to the evidence called and the applicable legal principles.

[64] The appellant has brought a motion to admit fresh evidence regarding post-hypnosis evidence. In our view, this evidence fails to meet the test from R. v. Palmer, [1980] 1 S.C.R. 759, 50 C.C.C. (2d) 193. The evidence could have been adduced at trial if the defence had been duly diligent. The defence was familiar with the dangers associated with post- hypnosis evidence, and could have made efforts to find expert witnesses willing to testify that the hypnosis interview of Perz was too problematic to be reliable. The defence chose to call Dr. Rowsell, a recognized expert with an excellent reputation, on the recommendation of another experienced defence attorney. The appellant cannot justify introducing fresh evidence on appeal simply because Dr. Rowsell's evidence turned out to be disappointing. Furthermore, the fresh evidence proffered by the appellant is contradicted by the Crown's fresh evidence. Thus, when read as a whole, we cannot say that the fresh evidence on this point would have been determinative. [page501]

2. Jury Charge

[65] The appellant also submits that the trial judge's charge did not adequately warn the jury about the frailties in the eyewitness identification of Marianne Perz, David Dibben and Suzanne Nadon.

(a) Evidence of David Dibben

[66] Dibben first contacted the police on July 1, 1990 to say that he had seen Ms. Bain's car in the area of Manchester near Lake Scugog early on the morning of Friday, June 22, 1990. The police initially discounted his claim, but months later, when they obtained evidence that Ms. Bain's car might have been moved on Thursday evening, the police took Dibben's evidence more seriously.

[67] At trial, Dibben testified that between 6:00 and 6:10 a.m. on Friday, June 22, he was being driven to work by a fellow employee. Dibben and his friend stopped at a traffic light and a small, silver Toyota Tercel pulled up ahead on their left side. Dibben noticed a set of artificial fingers hanging out of the passenger door and mentioned this unusual feature to his driver [See Note 3 at the end of the document]. He identified a photograph of Ms. Bain's car as looking "very much the same" as the one he saw on June 22. Dibben, who had been ten to 12 feet from the driver of the silver Toyota, could see the driver from the side and from behind"more or less to the side, more to the side than to the rear" from "just below the shoulders up". He testified: "I wasn't really paying attention to him, just basically looking, looking around" but that his eyes met those of the driver "for a split second".

[68] The police officer who took Dibben's statement on July 1 recorded his description of the driver as "male white, 24-25, blonde hair, semi-receding wearing white fluorescent T-shirt; also driver had blonde moustache and was thin-faced". When Dibben was first interviewed in person by the police on November 15, 1990, he described the driver as follows: "The driver was a guy 25-28 years old, thin face, dirty blonde hair just below the earlobe and a moustache the same colour as his hair. He was wearing a T-shirt, grey I think, with something colourful on the front." Dibben was presented with a photo line-up. He identified as the driver of the car a photograph of the appellant taken on Sunday, June 24, just before midnight when the appellant appeared not to have shaved for one or two days. [page502]

[69] At the preliminary hearing, Dibben's description of the driver changed. He testified: "I would say he was a white male with medium to light brown hair, a beard growth. He hadn't shaved for two or three days. A bit of a moustache. The same type of thing. Maybe he hadn't shaved in two or three days. He was wearing a black T-shirt or dark T-shirt, something bright in front, I am not sure what it was, but it was something bright in the front." This was the first time he had mentioned a beard.

[70] At trial, Dibben was asked if he could identify the appellant in the dock as the man he had seen driving on June 22, 1990. He answered: "I would say so, yes, except for the fact that he looks thinner and the hair is neater, shorter, clean shaven." He testified that it was "mostly the eyes" that enabled him to identify the appellant. Dibben described the moustache as "quite prominent, it wasn't a full moustache though". He thought that the moustache might have been a week old and that it was longer than the beard. He was certain that the driver's hair descended to, or below, the earlobe. Dibben agreed that the colour photograph of the appellant showed that he had dark hair, not blonde or dirty blonde hair.

[71] Various witnesses testified as to the appellant's appearance in late June and early July 1990. Detective Warr described him as "male, white, 5 foot 8 inches tall, with an athletic build, dark brown hair, straight, combed back, wet look". Other witnesses confirmed that the appellant kept his hair cut short, above his ears, with a jelled or wet appearance that made it look darker. The appellant did not have a receding hairline. The appellant never had a beard or moustache. However, there was evidence that he had appeared unshaven during some of the searches for Ms. Bain. During his interview with the police late on Thursday, June 21, the appellant was unkempt and unshaven, with perhaps a day or a day and a half's growth of beard. In addition, one witness, Arlene Coventry, also described his hair colour as "dirty blonde".

[72] At trial, Dibben took issue with the record of the description he had given on July 1. He testified that he told the officer that the man had dirty blonde or light brown hair; he agreed that "I may have described [the hairline] wrong" and that he "didn't really mean" that the driver had a receding hairline, only that he could see the driver's forehead and that he did not think that he had described the moustache as blonde but that he had said the moustache was the same colour as the hair, or possibly darker.

(b) Evidence of Suzanne Nadon

[73] Nadon lived near the Scarborough Campus of the University of Toronto. At about 12:30 a.m. on Monday June 18, Nadon [page503] heard a man and a woman arguing on the street outside her house. She got out of bed to look. Her view was obstructed by some bushes. She heard a car door slam and caught a glimpse of the car as it drove away but could not see the driver. Nadon then saw a girl walking along the side of the gravel road in the direction in which the car had gone. A few days later, Nadon heard about the disappearance of Ms. Bain and saw a poster with her photograph asking: "Have You Seen Liz or Her '81 2-door Silver Toyota???" At trial, Nadon testified that when she saw the poster, she thought it looked like the girl she had seen but added: "Mind you, I didn't see her full view like the picture was, but she looks very similar to that girl." On July 5, Nadon called TIPS to report what she had seen. She described the woman as "5 foot 3 to 5 foot 4, average build, long hair, wavy, frizzy, wearing a mini-skirt and top" and the car (which had been described in newspaper reports) as "similar to a Toyota, silver in colour, with a black strip on the side, small auto".

[74] On July 18, 1990, Nadon was interviewed by the police. She reported that she did not "actually catch the conversation" between the man and woman and that she had observed the woman for six to ten seconds as she walked away: "I only saw her from her right side and from the rear. I never saw her face on." She described the woman as being in her early 20's, white, 5'3', small build with brown hair to her shoulders, wearing a dark mini-skirt or loose shorts, with a lighter coloured top, and dark shoes. Nadon was shown a single photograph of Ms. Bain but could not identify her as the woman she had seen on June 18: "I can't say for sure. If I saw one showing her from the side I could maybe tell better. But this picture is straight on, and I never saw her straight on. I only saw her from the right side and from the rear."

[75] Nadon described the car as having a single black stripe about six inches wide and could not recall any stickers and did not mention any plastic fingers on the car she saw. When shown a photograph of the car showing its six black stripes she stated: "Yes this is definitely the car. Now that I see the picture I remember the wheels looked like they had spokes and that the stripe was a broken stripe."

[76] On August 30, 1990, Nadon was hypnotized by Dr. Matheson. Under hypnosis, she related for the first time some distinct words of the argument. She recalled that the girl said: "No, I don't want to". The man said: "Why?" The girl said: "No. I just don't want to". Nadon also heard the words "forget it". She recalled the girl's hair as being dark. Under hypnosis she remembered for the first time seeing a sticker on the licence plate. (At her July 18 interview she had been shown a photograph of the rear of the car showing a CAA sticker.) On July 18, [page504] she had reported: "[The driver] didn't pull off real fast, no squealing tires and I didn't hear any gears change." Under hypnosis, Nadon said she may have heard gears grinding: "I think I heard a grind. I think. Yeah . . . . Could be a gear." Nadon expanded on this at trial: " . . . when it first pulled out, I heard gears grinding, when you start from first to second and you don't have the clutch down enough, like that." [See Note 4 at the end of the document] When interviewed by the police after hypnosis Nadon remembered a sticker in the trunk area of the car: "I also remember a round thing or oval thing, possibly a sticker on the trunk lid or above the tail lights on the passenger side."

(c) Jury charge on eyewitness identification evidence

[77] The trial judge gave the jury a general, standard form "boilerplate" warning on the dangers inherent in eyewitness identification evidence. At trial, defence counsel did not object to the trial judge's instructions in this area. Indeed, defence counsel praised the trial judge's "very full and ample" identification instructions. However, before us, the appellant submits that the trial judge's charge was seriously deficient with respect to all three eyewitness identification witnesses.

[78] Of the three eyewitness identification witnesses in question, there can be no doubt that Marianne Perz and David Dibben gave evidence that was central to the Crown's case against the appellant. Their evidence, along with that of Suzanne Nadon, exhibited frailties that we identify below. It is settled law that juries must be cautioned about the risk of error inherent in eyewitness identification evidence. In some cases, a general warning as to the dangers of eyewitness identification evidence will suffice and trial judges must be given considerable latitude in deciding how to address the issue. However, we agree with the submission of the appellant that the evidence of these three witnesses contained significant frailties and that it was incumbent upon the trial judge to caution the jury as to these specific frailties and not rely upon a general "boilerplate" instruction.

[79] The need for a direction warning the jury of any specific weaknesses has long been recognized. In R. v. Turnbull, [1976] 3 All E.R. 549, [1976] 3 W.L.R. 445 (C.A.), at p. 552 All E.R., the English Court of Appeal stated: "Finally, [the judge] should [page505] remind the jury of any specific weaknesses which had appeared in the identification evidence" (emphasis added). Similarly, in R. v. Keane (1977), 65 Cr. App. R. 247 (C.A.), at p. 248 Cr. App., Scarman L.J. held as follows:

It would be wrong to interpret or apply Turnbull (supra) inflexibly. It imposes no rigid pattern, establishes no catechism, which a judge in his summing-up must answer if a verdict of guilty is to stand. But it does formulate a basic principle and sound practice. The principle is the special need for caution when the issue turns on the evidence of visual identification: the practice has to be a careful summing-up, which not only contains a warning but also exposes to the jury the weaknesses and dangers of identification evidence both in general and in the circumstances of the particular case.

Unfortunately, the summing-up in this case falls short of the requirements of sound practice. The warning is muffled and confused: the weaknesses in the evidence are not fully exposed: and some comments are definitely misleading.

(Emphasis added)

[80] In R. v. Canning, [1986] 1 S.C.R. 991, 27 C.C.C. (3d) 479, at p. 991 S.C.R., pp. 479-80 C.C.C., the Supreme Court of Canada set aside a conviction that rested upon eyewitness identification evidence where the trial judge failed to relate the need for caution to the specific facts of the case:

We are all of the view that while there was some evidence of identification of the accused, and while the trial judge did instruct the jury that caution should be exercised in approaching the identification evidence, he did not relate that need to the facts of this case. The result is that his charge on the issue of identification was inadequate -- particularly with regard to the identification procedures adopted at the detention centre.

(Emphasis added)

[81] Similarly in R. v. Brand (1995), 98 C.C.C. (3d) 477, 40 C.R.R (4th) 137 (Ont. C.A.), at p. 479 C.C.C., this court stated:

In the circumstances, we think the trial judge ought to have carefully instructed the jury on the dangers inherent in eyewitness identification and, in addition, he should have reviewed the evidence and related it to that instruction. The judge did charge the jury on eyewitness identification, the effects of colour, light and memory. The respondent contends that considered as a whole the charge adequately deals with this issue and that this is evident from the failure of defence counsel to make any objection. We do not agree. We think on the evidence the issue was raised and had to be squarely dealt with as eyewitness identification of the most credible witnesses may be fraught with the danger of mistake.

(Emphasis added)

[82] The same point was made by the British Columbia Court of Appeal in R. v. Fengstad (1994), 27 C.R. (4th) 383, [1994] B.C.J. No. 80 (C.A.), at pp. 396-97 C.C.C.: [page506]

Thus it appears that it is now settled in England, Ontario and Manitoba that in cases such as this one, it is necessary for the trial judge to remind the jury of specific weaknesses in the Crown's identification evidence. In our judgment, this cannot be done by a mere recitation of the evidence as was done in this case.

[83] See also R. v. Proulx (1992), 76 C.C.C. (3d) 316, 11 C.R.R. (2d) 298 (Que. C.A.), at p. 350 C.C.C.:

. . . it is not sufficient that the trial judge instruct the jury that caution should be exercised in approaching the visual identification evidence. It is also necessary that the jury relate "that need to the facts of the case" (Canning, supra), drawing the jury's attention in particular to any significant thing affecting the visual witnesses' observations or memory, as well as any irregular identification procedures which may affect the result. The weight of visual identification evidence may be partially or wholly destroyed by the use of any prejudicial identification methods . . . The use of such methods in the present case required an appropriate warning on the part of the judge.

(i) Marianne Perz

[84] There were elements of Perz's identification that could not have been derived from the Toronto Sun photograph and that supported her identification of the appellant: the look of his eyes, his stocky legs and that fact that he was wearing shorts. However, in view of the well-known risks posed by eyewitness identification evidence, the jury should have been directed to consider the following factors in relation to Perz's identification of the appellant as the man seated on the picnic table beside Ms. Bain:

-- in her original statement to the police, Perz was unable to describe any features or characteristics of the man, except that she believed he was white;

-- the man was a stranger to her and at the time she saw him, her attention was focused on Elizabeth;

-- her memory of the man noticeably improved and, to some degree, changed as she made further statements;

-- she saw the July 1, 1990 Toronto Sun article identifying the appellant as a suspect and showing his photograph and she knew from her discussions with the Bain family that the appellant was a prime suspect;

-- she may have seen the Toronto Sun article again on July 10 in a police car while on her way to her hypnosis session;

-- it was only after she had seen the photograph and been hypnotized that she was able to provide any detailed features or characteristics of the man she had seen; [page507]

-- she agreed that her memory had become an amalgamation of pre-hypnosis and post-hypnosis memories and described her trial memory as "a flashback";

-- Detective Warr told her that "Rob's photo is in the group" when he invited her to view the photo line-up; and

-- she remained tentative and stated that the appellant "looked like" the man but she "didn't want to say for sure".

[85] The Crown submits that the appellant made a critical tactical decision at trial to embrace the value of hypnosis in order to bolster the evidence of John Elliot who, after being hypnotized, recalled that the day he saw Ms. Bain's car near Lake Scugog was Wednesday, and not Friday as stated by Dibben. At trial, once the trial judge determined that the post- hypnosis recollections of the witnesses would be admitted, the defence decided to try to turn that ruling to their advantage. No evidence was led before the jury as to the dangers of post-hypnosis evidence and defence counsel did not ask for a warning to the jury on the use of post-hypnosis evidence as that might have undermined Elliot's evidence.

[86] We agree that in these circumstances, if the issue could be reduced to one of hypnosis alone, the trial judge could not be faulted for failing to give a specific direction regarding the dangers of post-hypnosis evidence. However, the issue that concerns us relates to the well-known dangers of eyewitness identification. Hypnosis certainly represents part of eyewitness identification in this case, as it was only through hypnosis that Perz was able to identify the appellant. By contrast, Elliot's post-hypnosis evidence pertained to the timing of his observations, not to his identification of the appellant. In our view, despite the position taken by the defence at trial with respect to hypnosis generally, the trial judge should have cautioned the jury that Perz was only able to identify the appellant after hypnosis, and he should have linked hypnosis with the potentially tainting factors we have identified above. While the failure of trial counsel to object to the charge is an important factor to consider on appeal, it is not fatal where the error in the charge amounts to a fundamental legal error.

(ii) David Dibben

[87] Dibben's identification of the appellant as the driver was also problematic for several reasons, including the following:

-- he had a limited opportunity to view the driver, as he "wasn't really paying attention" to the driver and his view was limited to a right side profile from behind; [page508]

-- the driver was a stranger to him;

-- his initial description provided no details of the appellant other than sex, race and approximate age, and other details provided by him were arguably at odds with the appearance of the appellant with respect to hair colour, hair length, hair line, and moustache;

-- his descriptions of the driver and of the driver's clothing changed significantly over time; and

-- he was less than certain about the identification.

[88] In view of the fact that Dibben's original description of the driver arguably rested on features that did not match the appellant's appearance, the trial judge should have drawn that fact specifically to the attention of the jury in his instructions on the need to proceed with caution.

(iii) Suzanne Nadon

[89] Nadon's identification of Ms. Bain also exhibited certain frailties, including the following:

-- the woman was a stranger to her;

-- her view was at night and through trees and other foliage;

-- she only caught a brief glimpse of the woman and only saw her right side profile from behind and did not see the woman's face;

-- when questioned by the police she was shown a single photograph of Ms. Bain for identification purposes; and

-- her memory of the woman's description was improved to some extent during hypnosis.

[90] The trial judge erred by failing to give the jury any warning regarding Nadon's evidence as he did not include her evidence in his general "boilerplate" warning as to the dangers of eyewitness identification evidence. In view of the importance of Nadon's identification of Ms. Bain as the woman involved in an argument more or less at the same time the appellant claimed he and Ms. Bain were making love, a caution dealing with the specific frailties we have identified was required.

[91] In our view, the trial judge's failure to give the jury adequate instructions with respect to the eyewitness identification [page509] evidence of Marianne Perz, David Dibben and Suzanne Nadon constitutes an error of law that could have affected the verdict.

V. INSTRUCTIONS TO THE JURY ON ALIBI

[92] It will be recalled that at trial, Crown counsel took the position that the killer was the man seen by Marianne Perz sitting next to Ms. Bain at the picnic table at 5:40 p.m. on June 19. It followed that if the appellant was at home with his family at that time, as he claimed, he could not, on the Crown's theory, have been the killer.

[93] In view of the Crown's position, it was agreed that the appellant's evidence as to his whereabouts at 5:40 p.m. would be treated as alibi evidence. The trial judge instructed the jury accordingly.

[94] In his instructions, the trial judge correctly told the jury that if they did not accept the appellant's alibi or if it did not raise a reasonable doubt in their minds, they were to "put it aside and consider the rest of the evidence". Immediately thereafter, he correctly warned the jury that rejection of the appellant's alibi did not mean that he was automatically guilty. The trial judge worded the caution as follows:

What you cannot say is this: Well, we don't believe the alibi and it doesn't raise a reasonable doubt, therefore, we automatically find him guilty. You can't say that.

The trial judge then made it clear that in order to convict the appellant, the jury had to be satisfied, on evidence they accepted, that the appellant's guilt had been proved beyond a reasonable doubt.

[95] As indicated, the foregoing instructions were legally correct. Unfortunately, they were accompanied by two significant legal errors.

1. Non-direction on the Issue of Fabrication

[96] The trial judge told the jury on more than one occasion that if they not only disbelieved the appellant's alibi but were further "satisfied [that it] was given to deceive the police", they could use that finding as evidence "capable of supporting the identification" evidence given by witnesses such as Marianne Perz. In other words, a fabricated or concocted alibi designed to deceive could be used as positive evidence of guilt.

[97] In so instructing the jury, the trial judge made no mention of the fact that independent evidence was needed to ground a finding of fabrication; nor did he point out that the requirement for independent evidence meant evidence apart from evidence [page510] showing the alibi to be false. His failure to include those instructions constituted error. See R. v. O'Connor (2002), 62 O.R. (3d) 263, 170 C.C.C. (3d) 365 (C.A.), at paras. 38 and 42.

[98] Those deficiencies were compounded by the trial judge's further failure to identify for the jury the evidence that was capable of constituting independent evidence of fabrication. In this case, that deficiency was particularly serious. On the trial record, there was only one possible item of independent evidence that the jury could consider in deciding whether the appellant's alibi evidence for 5:40 p.m. was the product of fabrication. That evidence came from Kaedman Nancoo. To use his evidence in that fashion, it would have been necessary for the jury to find that the appellant had attempted to have Nancoo falsify his evidence as to the time he apparently saw the appellant in the weight room (between 5:00 and 5:30 p.m.) on the evening of June 19. Failure to point this out meant that the jurors were given a free hand to rummage through the evidence and select any items that, in their opinion, went to show that the appellant's alibi evidence for 5:40 p.m. was a product of fabrication.

[99] As indicated, leaving the jury to rummage about the evidence in that fashion was particularly perilous in this case. Depending on the jury's view of it, there was ample evidence from which they could conclude that the appellant's alibi evidence for 5:40 p.m. was false. Indeed, the whole of the Crown's case could be used for that purpose. It is axiomatic however, that evidence capable of showing an alibi to be false does not automatically translate into evidence capable of showing that it has been fabricated. Were it otherwise, there would be no need for the stringent test that must be met before a finding of fabrication, as opposed to falsity, can be made. Having relied upon certain evidence to find that an alibi is false, the jury cannot, as a matter of course, turn around and use the same evidence to find that the alibi was fabricated. That would constitute impermissible bootstrapping and it would effectively nullify the time-honoured distinction between a false alibi, which has no evidentiary value, and a fabricated alibi, which can be used as circumstantial evidence of guilt.

[100] Given the significance of Marianne Perz's identification evidence, it was essential that the jury be properly instructed on the stringent test that must be met before they could find fabrication and use the appellant's alibi evidence for 5:40 p.m. as positive evidence supportive of her testimony. The trial judge's failure to so instruct the jury amounted to error. [page511]

2. Misdirection Relating to Assessment of Alibi Evidence

[101] After completing his instructions on suicide, the trial judge told the jury that if they were satisfied beyond a reasonable doubt that Ms. Bain did not commit suicide, they should "go on to consider the next question and that is alibi". He then introduced the topic as follows:

Counsel for the accused, Robert Baltovich, raises the defence of alibi. That is, the plea that when the alleged offence took place the person was elsewhere.

There is no duty, there is no obligation, upon the accused to prove anything.

However, if you believe the alibi evidence, or if it raises a reasonable doubt in your mind, then once again you must say "not guilty".

[102] As indicated, based on the position of the parties at trial, it was agreed that if, contrary to Marianne Perz's evidence, the jury believed or had a reasonable doubt that the appellant was not the man seated beside Ms. Bain at the picnic table at 5:40 p.m., then the appellant was entitled to be acquitted.

[103] With that in mind, having introduced the topic of alibi, the trial judge spent the next 98 pages of his charge reviewing in painstaking detail the evidence of every witness who had anything to say about the whereabouts of the appellant and Ms. Bain on Tuesday, June 19, the day Ms. Bain went missing. The review included the appellant's version of the day's events based upon his statements to the police. It also included an extensive review of the evidence given by the appellant's family placing him at home at 5:40 p.m., and an equally extensive review of Perz's evidence placing him at the picnic table beside Ms. Bain at that time.

[104] After concluding the evidentiary review, the trial judge continued as follows:

Ladies and gentlemen of the jury, after being taken through -- I must say laboriously, undoubtedly tediously -- all of that evidence about and touching upon alibi, how say you:

Does the evidence of alibi persuade you that Robert Baltovich was elsewhere and could not have been the person on the picnic table beside Elizabeth Bain?

Does the evidence dealing with alibi raise a reasonable doubt in your mind?

If you accept the evidence of alibi as set out in the statements of Robert Baltovich, and the evidence of his mother, his brother, his sister-in-law, if you accept that evidence of alibi or it raises a reasonable doubt, then you must say "not guilty".

(Emphasis added)

[105] The trial judge then identified the competing positions of the Crown and the defence, following which he reminded the jury [page512] of the pitfalls and perils of eyewitness identification evidence and the "special need for caution before convicting in reliance upon the correctness" of that identification. He then continued as follows:

If after a careful examination of the evidence, in light of all of the circumstances, with due regard to all the other evidence in the case, you are satisfied beyond a reasonable doubt that the accused committed the offence based on the identification, then you will find him guilty.

If after you carefully review all of the evidence touching and regarding the question of alibi, you may say: I believe the alibi, or you may say: the alibi evidence creates a reasonable doubt in your mind, then in either case you must say "not guilty" and your deliberations would end.

(Emphasis added)

[106] The second paragraph of that passage causes us concern. Unlike the first paragraph, where the trial judge correctly instructed the jury that they were to consider "all of the circumstances" and "all of the other evidence" in deciding whether they could safely act on the identification evidence to convict, in the second paragraph, he restricted the jury to "the evidence touching and regarding the question of alibi" in deciding whether they could act on the alibi evidence to acquit.

[107] Significantly, the words "touching and regarding the question of alibi" found in the second paragraph are virtually identical to the words used by the trial judge following his extensive review of the "alibi evidence" where he said: "after being taken through . . . all of that evidence about and touching upon alibi".

[108] Our concern with the second paragraph is that it may have left the jury with the impression that in assessing the worth and strength of the appellant's alibi evidence, they could only look to the evidence that the trial judge had reviewed as opposed to the evidence as a whole.

[109] If the jury was left with that impression, it was clearly erroneous. In assessing the worth of the appellant's alibi evidence, the jury was entitled to consider and weigh it in the context of the whole of the evidence, including other evidence favourable to the appellant that the trial judge did not mention in his summary of the "evidence touching and regarding the question of alibi".

[110] To take but one example, in assessing the appellant's alibi for 5:40 p.m. on June 19, the jury was entitled to consider John Elliott's testimony in which he placed (with 80 per cent certainty) Ms. Bain's car in the Lake Scugog area on Wednesday morning, June 20, at a time when the appellant was almost certainly at home in bed. Elliott's evidence did not form part of the evidence [page513] reviewed by the trial judge "touching and regarding the question of alibi". Nonetheless, it was important for the jury to know that they could consider it, along with any other evidence favourable to the appellant, in assessing the worth of his 5:40 p.m. alibi evidence.

[111] In our view, the error in question was serious. It went to the heart of the appellant's defence. In the circumstances, we cannot say that the verdict would necessarily have been the same had it not been made.

V. FAIRNESS OF JURY CHARGE

[112] The appellant submits that the charge to the jury was unfair in many respects and that it "effectively sealed [his] fate". Specifically, he complains that it was "overwhelmingly supportive of the Crown's position" and that "the trial judge's own opinion of [his] guilt could not have been left in doubt for the jury".

[113] In addressing this ground, we do not find it necessary to review all of the alleged failings and deficiencies raised by the appellant. In sum, for reasons that follow, we are satisfied that the charge lacked fairness and balance and that it compromised the appellant's right to a fair trial. Read as a whole, it unduly promoted the case for the Crown and effectively ignored and denigrated the case for the defence. The examples that we have chosen to illustrate this are not meant to be exhaustive. Rather, they represent some of the more telling features of the charge that speak to its overall lack of fairness and balance.

[114] Before reviewing those features, we think it important to underscore the significance of the charge to the jury and the need for trial judges to be fair and balanced in their recitation of the evidence and their review of the position of the parties.

[115] The charge to the jury is a central feature in any jury trial. In the context of our adversarial process, its strength lies in its objectivity. In an otherwise partisan atmosphere, the jury is entitled to look to the charge to guide it safely through its deliberations and assist it in arriving at a true verdict according to law.

[116] Much has been said in recent years about the complexity of jury charges and the need to simplify them. Trial judges face a difficult task in this regard, especially when it comes to explaining complicated issues of law. In R. v. Jacquard, [1997] 1 S.C.R. 314, 113 C.C.C. (3d) 1, at para. 2, Chief Justice Lamer observed that while "accused individuals are entitled to properly instructed juries", there is "no requirement for perfectly instructed juries". Those words are as true today as they were then. No one expects perfection in a jury charge. Mistakes are bound to occur. [page514]

[117] But not all mistakes are alike. Some can easily be avoided. Failing to provide the jury with a fair and balanced charge is one of them. There is no justification for jury charges that are not even-handed.

[118] We cannot stress enough the importance of a fair and balanced charge. A charge that meets those requirements is much more likely to withstand appellate review than one that does not: See Jacquard, supra, at para. 56. In practical terms, this may mean the difference between dismissing the appeal, and ordering a new trial with all of its attendant costs and hardships. Our system of justice is already overburdened. We do not need to add to this problem with new trials that could have been avoided. Further, s. 11(d) of the Canadian Charter of Rights and Freedoms provides that every person charged with an offence has the right to a fair trial. This is a fundamental right. Unfair and unbalanced charges undermine this right.

[119] With those observations in mind, we return to the trial judge's charge and commence our fairness analysis with the trial judge's treatment of the issue of suicide.

1. The Issue of Suicide

[120] By the end of the trial, the issue of suicide remained a live issue, but just barely.

[121] In his closing address, which spanned over 100 pages of transcript, defence counsel spent about a page-and-a-half on the subject. He reminded the jury of Ms. Bain's suicidal tendencies, her writings on the subject, her previous feigned suicidal gestures and her hidden emotional and psychological difficulties. Notably, however, he did not suggest that Ms. Bain had actually committed suicide, nor did he urge the jury to consider suicide as a viable possibility. Indeed, immediately following the portion of his address to which we have just referred, he continued as follows:

What we come to though is the defence theory, which I told you earlier, we hope, is going to show you not only the evidence here doesn't point to Robert Baltovich, but it may very well point to somebody else being responsible for this young lady's disappearance.

(Emphasis added)

[122] That statement accurately identified the defence position. A review of the defence closing address attests to this. Most of this address was taken up with an attack on the main Crown witnesses. It was designed to show that the Crown's case was weak and that the evidence fell short of establishing that the appellant was the person who killed Ms. Bain. The last part of the address focused on the defence position that someone other [page515] than the appellant likely killed her. In short, by the end of the closing address, if suicide played any role at all in the defence case, it was a modest one at best.

[123] The defence position was not lost on the Crown. In his closing address, Crown counsel noted that defence counsel had only suggested "a little bit in his closing either this was suicide or a disappearance, if the Crown had proved she is dead . . . she might have killed herself or it may be suicide" (emphasis added). Crown counsel then spent the next two and a half pages debunking the notion of suicide. As for the other 93 pages of his address, 89 of them were devoted to what he knew to be the only real issue at trial, namely, whether the appellant was the person who murdered Ms. Bain.

[124] Against that backdrop, we do not understand why the trial judge felt the need to devote 25 pages of his charge to the issue of suicide. His treatment of the matter was, to say the least, unfortunate. If not by design, it certainly had the effect of devaluing the appellant's primary defence by conveying the impression that in staying with the defence of suicide, the defence was grasping at straws. Moreover, the trial judge, on his own motion, effectively converted the appellant's initial belief that Ms. Bain may have committed suicide into evidence of after-the-fact conduct indicative of his guilt. That inference was one that even Crown counsel did not ask the jury to draw, and rightly so. In our view, it was not available on the evidence.

[125] In the course of his 25 pages of instructions, the trial judge referred the jury to virtually every piece of evidence given by every witness on the subject of suicide. Much of this involved a comprehensive review of every comment made by the appellant to the police and others in which he mentioned suicide as a possibility. Following that review, the trial judge launched into the following series of rhetorical questions:

Ladies and gentlemen, who was it from 6:30 on June 20th, 1990 onwards who appears to have been pushing the idea of suicide? Who seems to be promoting the idea?

You may ask yourself: why would Robert Baltovich want to go about telling everyone that "his suicidal girlfriend had gone missing"?

Does Robert Baltovich have a better understanding and knowledge of Elizabeth than her parents, her physician, her siblings and her best girlfriend?

Does Robert Baltovich have a self-interest in promoting the idea of Liz's suicide?

Were the Bain's engaged in some kind of a hush-up to prevent the police from knowing that Elizabeth Bain was a suicide waiting to happen? [page516]

[126] The tone and content of the rhetorical questions leave little doubt as to where the trial judge stood on the matter. Not only did he hold the defence of suicide up to contempt and ridicule, he also conveyed a less than subtle message to the jury that the appellant was "promoting the idea" to throw the police off track and shield himself from detection. In other words, the jury could use the appellant's stated belief that Ms. Bain might have committed suicide as after-the-fact conduct indicative of his guilt.

[127] In our view, it was wrong and unfair for the trial judge to give the issue of suicide the extensive treatment he did, only to demean it in the end. Moreover, in instructing the jury, there was no need to detail what the appellant may have said to the police and others about the matter. Based on Ms. Bain's diary entries, her conversations with others and her attempts (feigned or otherwise) to harm herself in the past, there was certainly a basis for thinking, at least initially, that she may have taken her own life. In view of that, to take the appellant's so-called "promotion" of the evidence and convert it into after-the-fact conduct indicative of guilt was to put the cart before the horse. It only worked if one assumed his guilt. Circular reasoning of that sort is impermissible. Perhaps that is why Crown counsel did not invite the jury to engage in it. Regrettably, the trial judge left the jury with a different impression that was erroneous.

[128] In sum, we believe that the trial judge's treatment of the subject of suicide was unfair and prejudicial to the appellant.

2. The Issue of Motive

[129] At the conclusion of his instructions on alibi, the trial judge told the jury that if they were to reject the appellant's alibi evidence, they had to then go on and decide whether on the balance of the evidence the Crown had proved its case against him beyond a reasonable doubt. He then instructed the jury on the law of murder and manslaughter, following which he turned to the linchpins of the Crown's case -- opportunity, motive and after-the-fact conduct indicative of guilt -- and proceeded to review the evidence relied upon by the Crown to establish each. He commenced that portion of his instructions as follows:

What evidence has the Crown presented that Robert Baltovich caused the death of Elizabeth Bain in circumstances that amount to manslaughter or murder?

(Emphasis added)

[130] The trial judge first addressed the issue of opportunity. In the space of one page, he reminded the jury of the witnesses whose evidence he had already reviewed in the context of the [page517] appellant's defence of alibi. Foremost among them was Marianne Perz, who had placed the appellant with Ms. Bain at the picnic table at 5:40 p.m. on June 19.

[131] The trial judge next turned to the issue of motive. After instructing the jury on the applicable law, he commenced his review of the evidence as follows:

What is the motive that the Crown alleges in this case?

Crown counsel alleges that:

(a) the romantic relationship between Elizabeth Bain and Robert Baltovich had been severed by Elizabeth Bain.

(b) that Robert Baltovich is a very jealous, possessive man.

(c) that Robert Baltovich decided that "if I couldn't have Elizabeth Bain, no one would", and in order to accomplish that purpose, he murdered her.

What is the evidence that the relationship had been terminated, or was terminally ill, or was stuck on some big rocks?

[132] The trial judge then spent the next 41 pages reviewing in painstaking detail the evidence that supported the Crown's position. Throughout the entire 41 pages, apart from one or two sentences, he virtually ignored the evidence supportive of the appellant's position that his relationship with Ms. Bain, though not perfect, was far from over.

[133] By way of example, Ms. Bain's mother, Julita, testified that in the week prior to her daughter's disappearance, she saw no problems in the relationship. She further stated that Elizabeth always wore the ring that she had received from the appellant. From her perspective, it was apparent that her daughter and the appellant were very much in love. She also testified that ten days before her disappearance, Elizabeth gave the appellant several graduation presents consisting of a watch, flowers and a poem.

[134] Arlene Coventry, one of Ms. Bain's closest friends, testified that in May 1990, one month before her disappearance, Elizabeth confided in her that she was adamant about continuing her relationship with the appellant and that she wanted to marry him. She also told Ms. Coventry about a wonderful romantic weekend that she and the appellant had spent in Niagara Falls several weeks earlier. Finally, she recalled speaking to Elizabeth on the Sunday night prior to her disappearance. At that time, Elizabeth appeared to be happy and seemed fine.

[135] Jim Isaacs, a friend of both the appellant and Ms. Bain, testified about a letter that he received from Elizabeth in April 1990 in which she complained about her relationship with the appellant and spoke of a desire to leave him. After receiving the letter, Isaacs spoke to Elizabeth on several occasions. From his [page518] conversations with her, he believed that she had overcome her problems. She and the appellant were "dating again regularly . . . and things seemed to be getting better, the idea of breaking up was not there". Isaacs further testified that he spoke to Elizabeth a week or two prior to her disappearance. At that time, she told him that things were fine between her and the appellant.

[136] Laura Pallone, a friend of Ms. Bain's, received a letter from Elizabeth dated June 18, 1990, the day before her disappearance. The letter was happy in tone and content. In it, Elizabeth advised Pallone for the first time of her relationship with the appellant. She explained that she had not mentioned the appellant before because in the spring, when she and Pallone had met, she was "going through a major downer time with him". The letter continued:

And you were so happy with Erminio. I just love to hear you talk about him because it made you glow! And that happy feeling kind of affected me in a good way too.

(Emphasis added)

[137] These examples serve to illustrate that there was evidence favourable to the appellant on the issue of motive. And yet, in 41 pages of instruction, the jury heard virtually none of it. At that stage of the charge, the jury was being asked to consider whether the case for the Crown was sufficient to convict. Motive was one of the linchpins of the Crown's case. To the extent that there was evidence favourable to the appellant on the subject, he was entitled to have it placed before the jury. The trial judge's failure to include such evidence resulted in a review that was unfair, unbalanced and prejudicial to the appellant.

[138] Before leaving the issue of motive, we wish to comment briefly on one aspect of the trial judge's legal instruction. The trial judge instructed the jury on the use they could make of Ms. Bain's diary entries and her comments to others about the state of her relationship with the appellant. In effect, he told the jury that that evidence was relevant to Ms. Bain's state of mind and attitude towards the appellant and to the issue of motive. Unfortunately, however, he neglected to tell the jury that in assessing the weight to be ascribed to that evidence, the credibility and reliability of the witnesses who testified about what Ms. Bain may have told them was something they should take into account. He also failed to make it clear that the evidence was not admissible for the truth of its contents. While not fatal, it would have been preferable had the jury received this additional legal instruction. [page519]

3. Instructions on After-the-fact Conduct

[139] After completing his instructions on motive, the trial judge turned to the third branch of the Crown's case namely, evidence of consciousness of guilt (now referred to as after- the-fact conduct indicative of guilt). The trial judge commenced this portion of the charge with a brief statement of the applicable legal principles [See Note 5 at the end of the document]. He then began a review of various "matters . . . relied upon by the Crown to show consciousness of guilt".

[140] The first such matter centred on the Crown's theory that in the early morning of Friday, June 22, the appellant moved Ms. Bain's body from Colonel Danforth Park to Lake Scugog. On any view of the case, that was surely one of the most devastating items of after-the-fact conduct put against the appellant. If proved, it virtually sealed his fate. The inferences flowing from it were as obvious as they were unanswerable.

[141] It was therefore essential that the jury be equipped with the tools needed to make that crucial factual determination. On this record, that meant the need for special care in assessing the evidence of David Dibben. Without question, his eyewitness identification of the appellant as the driver of Ms. Bain's car on Friday, June 22, was of particular importance to the Crown. Similarly, John Elliott's evidence was of particular significance to the defence. It too required special care.

[142] As previously discussed, the trial judge did not adequately equip the jury to deal with these witnesses. In the case of Dibben, the trial judge's general instructions on the dangers of eyewitness identification were insufficient. In the case of Elliott, it was important for the jury to understand that in assessing his evidence, while they should look to all of the frailties associated with it, they were not to approach it from the point of view that it would be dangerous to rely on his evidence to acquit the appellant.

[143] As it is, the trial judge merely engaged in an extensive recital of the evidence of Dibben and Elliott. At the end of the review, which included a review of other testimony bearing on the matter, the trial judge posed the following question to the jury:

Does all that evidence persuade you that Robert Baltovich was the driver of Elizabeth Bain's car, the one that Mr. Dibben saw on June 22nd, and the same date or another date that Mr. Elliott saw the car, at about 6:00 o'clock in the morning? The same car that was put back at the Three-R Auto Body Shop and, so-to-speak"discovered" on the same Friday afternoon.

(Emphasis added) [page520]

[144] Pausing there, we note that the question was worded in a manner that was unfair to the appellant. Whether by design or effect, it conveyed the erroneous impression that little turned on the timing of Elliott's reported sighting of Ms. Bain's car. That, of course, was not the case. In his testimony, Elliott claimed that he was 80 per cent sure that he had seen Ms. Bain's car on Wednesday morning, June 20, not Friday morning, June 22. If his Wednesday recollection was accurate, then it is a virtual certainty that the appellant was home in bed at the time.

[145] Having framed the crucial question unfairly, the trial judge followed up with a series of rhetorical questions that admitted to only one answer and could only have served to prejudice the appellant in the eyes of the jury and diminish his defence. The questions are reproduced below:

If Robert Baltovich is the driver of that car, where is he coming from at that hour in that car?

Does Robert Baltovich's presence in that car explain his reason for not returning Eric Genuis's telephone calls of late Thursday night and early Friday morning? You recall that Robert Baltovich left 42 Division at 12:50 a.m. after Exhibit 98 had been completed. He didn't call Eric Genuis, he didn't return the calls that night although the requests left by Eric Genuis was "call any time".

If Robert Baltovich was driving at 6:00 o'clock in the morning at Highways 7 and 12 on June 22nd, where was he coming from?

Was he returning from the Lake Scugog area, a marshy area, which it is apparent from the evidence he knows well from his days as a YMCA voyageur senior counsellor?

What was he returning from doing?

If this is the car, and he is the driver -- this is the car that has the DNA and the blood in the back, as you see in the photos.

[146] Rhetorical questions of that nature may have a place in the Crown's closing address. They should be avoided in the jury charge, lest the trial judge be seen as taking up the Crown's cause and casting off the mantle of objectivity.

[147] The above example is but one illustration of the trial judge's improper use of rhetorical questions. Many are found in the remainder of his "consciousness of guilt" instructions. We see no need to detail them. Suffice it to say that taken cumulatively, they indicate the trial judge's contempt for the defence position. In our opinion, that view would not have been lost on the jury.

[148] Apart from the unfairness already identified, the trial judge's instructions on consciousness of guilt were entirely one-sided. [page521] Depending on their view of it, there was evidence from which the jury could conclude that the appellant was legitimately co-operating with the police and doing everything in his power to locate Ms. Bain. None of that evidence was mentioned to the jury as a counterweight to the Crown's allegations. In fairness, it should have been.

VII. CONCLUSION ON JURY CHARGE

[149] The charge to the jury was unfair and unbalanced. It also contained significant errors of law that were prejudicial to the appellant. This is not a case in which the curative proviso can be applied to uphold the conviction. The appellant's conviction for second degree murder must accordingly be set aside.

VIII. REMEDY

[150] The appellant asks this court to allow the appeal, quash the conviction and enter an acquittal. Alternatively, he submitted for the first time in oral argument that we should grant a stay of proceedings. As the final alternative, he submits that the conviction should be quashed and a new trial ordered.

[151] On the basis of the legal errors and the overall unfairness of the charge, we have determined that the appeal should be allowed and the conviction quashed. However, after careful consideration of the evidence at trial and the enhanced record on appeal, we are not persuaded that an acquittal is appropriate given that we are satisfied that there is evidence upon which a properly instructed jury, acting judicially, could reasonably convict. We further conclude that this is not one of those "clearest of cases" in which a stay is warranted. Consequently, we are of the view that the proper disposition is to order a new trial.

[152] In view of this determination, as indicated, it would be inappropriate to engage in a detailed review of either the trial evidence or the fresh evidence. Thus, in setting out our reasons for rejecting the appellant's request for an acquittal or a stay of proceedings, we have purposefully kept our discussion of the evidence to a minimum.

1. Acquittal Based on Unreasonable Verdict

[153] The appellant submits that the jury's verdict was unreasonable because it depended on shaky eyewitness identification evidence and a Crown theory that was fanciful and contrary to evidence supportive of his innocence.

[154] The test to be applied in determining whether a verdict is unreasonable is clear. The appellate court is to independently [page522] examine and assess the evidence and decide whether, on a totality of the evidence, a properly instructed jury, acting judiciously, could have convicted. See, for example, R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 143 C.C.C. (3d) 1.

[155] In R. v. H. (R.T.) (2001), 56 O.R. (3d) 119, 159 C.C.C. (3d) 180 (C.A.), at para. 31, this court explained the test in these terms:

[T]he question to be asked when determining whether a verdict is unreasonable or unsupported by the evidence is whether a properly instructed jury, acting judicially, could reasonably have rendered the verdict. This appellate function requires that this question be asked through the lens of experienced jurists and it requires that the conclusion reached not conflict with the bulk of judicial experience. It is imperative that the court of appeal articulate the basis upon which it concluded that the jury reached an unreasonable verdict; it is insufficient for the court to simply express that there is a "lurking doubt". While vague unease or a lingering doubt may be a signal that the verdict was reached in a non-judicial manner, the court must proceed with an analysis of the evidence to justify interfering with the conviction.

(a) The trial evidence

[156] As indicated, the Crown relied upon evidence of opportunity, motive and after-the-fact conduct indicative of guilt to prove its case. We have already outlined in general terms the nature of that evidence and we see no need to repeat it.

[157] The appellant challenged each branch of the Crown's case and depending on the jury's assessment of it, there was evidence supportive of his position that he had no hand in Ms. Bain's killing. We have taken that evidence into account in our assessment. We have also considered the frailties associated with two of the more significant Crown witnesses, Marianne Perz and David Dibben.

[158] That said, it is trite law that fact-finding is properly the domain of the jury. To acquit the appellant, we would have to weigh the evidence to a far greater degree than permitted. The conflicting evidence raises questions that are factual in nature and therefore best dealt with by a jury. In our view, the outcome of this case rested largely on the jury's assessment of a myriad of facts and circumstances that had to be weighed and considered. Depending on the jury's view of it, we believe that had they been properly instructed, there was evidence upon which they could reasonably convict.

(b) The fresh evidence

[159] The appellant's trial began ten weeks after the Supreme Court of Canada delivered its judgment in R. v. Stinchcombe, [1995] 1 S.C.R. 754, 96 C.C.C. (3d) 318. The Crown made pre- trial [page523] disclosure based on pre-Stinchcombe practices. In 1999, counsel for the appellant undertook a post- conviction Stinchcombe process and discovered materials that fall into five categories:

(1) the appellant's attendance at Ms. Bain's classroom on the night of her disappearance;

(2) an undisclosed statement of Cathy Bain;

(3) missing pages from Ms. Bain's diary;

(4) the "Dear John" letter the appellant supposedly received from Ms. Bain but that in fact was her diary entry for September 16, 1988; and

(5) the police search of Old Kingston Road.

[160] The appellant asks that this previously "undisclosed" evidence be admitted [See Note 6 at the end of the document]. In addition, the appellant seeks to introduce fresh evidence linking Paul Bernardo to Ms. Bain's disappearance. For convenience, the previously "undisclosed" evidence and the fresh evidence will be referred to together as the "fresh evidence".

[161] The appellant asks this court to consider the reasonableness of the trial verdict after taking into account all grounds of appeal as well as the fresh evidence. While we have dealt with the grounds of appeal separately, we accept that we are to consider the fresh evidence in the context of the whole of the appeal.

[162] The test for ordering an acquittal based on fresh evidence is high; the evidence must be "clearly decisive" of innocence. See R. v. Stolar, [1988] 1 S.C.R. 480, 40 C.C.C. (3d) 1. For the purposes of deciding this question, we have assumed that all of the fresh evidence is admissible. Even on that basis, we are of the view that the fresh evidence, whether considered on an item-by-item basis or in its totality, is not "clearly decisive" of the appellant's innocence. Thus, an acquittal is not warranted.

(i) The appellant's attendance at the classroom

[163] The appellant told the police in several interviews that on Tuesday, June 19, 1990, the day that Ms. Bain disappeared, he went to find her at 9:00 p.m. when her Abnormal Child Psychology class ended. He said that when he arrived at the class, he saw a man standing outside the classroom. Thinking that the man might [page524] be there to meet Ms. Bain, he hid himself on a balcony above the classroom from where he could watch the students leave.

[164] At trial, the Crown led evidence that suggested that the appellant may not have gone to the classroom as he maintained. Two witnesses now support the appellant's statements. Mr. Naz Tonbazian knew the appellant from the campus weight room and recalled seeing him arrive at the classroom and stand at the top of the stairs overlooking the classroom exit on the evening in question. Ms. Roula Mandas, Tonbazian's girlfriend at the time and a member of the Abnormal Psychology class, confirmed that Tonbazian met her after class that night. The police located and interviewed Tonbazian in the summer of 1990 but that fact was not communicated to defence counsel and they were unaware of it at the time of trial.

[165] The appellant argues that his attendance at the classroom "should be decisive of his appeal and, in the context of the whole case surrounding Elizabeth Bain's murder as it is now known, his innocence".

[166] We do not see this evidence as conclusive of the appellant's innocence. We accept that the evidence shows that the appellant was telling the truth when he said he had gone to Ms. Bain's classroom at 9:00 p.m. on the night in question and that a jury might consider it as evidence pointing to his innocence. We do not, however, accept that it proves he was innocent.

[167] There are a number of inferences that can reasonably be drawn from the appellant's attendance at the classroom that night. For example, if he did believe that Ms. Bain was seeing another man, he may have gone to the classroom after killing her and secreted himself away to see if she had arranged to meet someone else. Another possible inference is that he wanted to know if people in the class were aware that Ms. Bain was missing. If he had killed Ms. Bain, he would have wanted to know whether a search for her was likely to begin that evening or whether he had additional time to deal with her car and body. While this fresh evidence may strengthen the appellant's credibility (we emphasize the word "may" because the evidence of Tonbazian raises other questions about the appellant's credibility that the triers of fact will have to sort out), it does not diminish any of the essential aspects of the Crown's case in respect of motive, opportunity and after-the-fact conduct described above.

(ii) Cathy Bain's prior statement

[168] Cathy Bain testified about her sister's relationship with the appellant. Among other things, she testified about an incident [page525] on Thursday evening, June 16, five days before Elizabeth's disappearance, in which her sister had said "Rob is such an asshole." This testimony is consistent with Cathy Bain's statements to the police that were disclosed to the appellant prior to trial. However, the appellant has now discovered that Cathy Bain gave a statement to the police in which she said that this incident occurred the night before her sister disappeared, not five days earlier. The appellant submits that this confusion around dates could have been used to "completely undermine" Cathy Bain's credibility.

[169] Even if we were to accept the appellant's argument on this point, there was other evidence that the appellant's relationship with Ms. Bain was strained and on the verge of collapsing. Thus, this fresh evidence does little, if anything, to diminish the Crown's case on motive.

(iii) Missing diary pages

[170] With permission, the appellant took some of the pages of Ms. Bain's diary from her parents' home the day after she disappeared. Cathy Bain testified that he did not return all of the diary pages. The fresh evidence suggests that she may have been in error in that regard. However, it is by no means clear that all of the diary pages were returned. Assuming that they were, this can scarcely be said to be conclusive of innocence. At most, it could be used to bolster the appellant's credibility and cast further doubt on Cathy Bain's credibility.

(iv) The Dear John letter

[171] The appellant told Ms. Bain's father and the police that on Saturday, June 16, 1990, she gave him an entry from her diary that was dated September 16, 1988. The appellant said that he gave the document to Ms. Bain's father after she disappeared but Mr. Bain denied receiving it. The Crown pointed to the evidence of Alan Heys, a friend of the appellant, to argue that what the appellant had received was a "Dear John" letter. The Crown relied on this portrayal of the letter as circumstantial evidence relating to motive.

[172] The appellant contends that he has now discovered, in the trial Crown's file, a document that he claims is the diary entry that he received from Ms. Bain. He suggests that the police must have seized the document from the Bain residence.

[173] The message in the diary entry is confusing. It is not a "Dear John" letter, in that it does not say that Ms. Bain is ending her relationship with the appellant, but neither is it an [page526] affirmation of her love for him. It is not clear what Ms. Bain meant to signify by giving the diary entry to the appellant. Again, while this evidence may show that the appellant was truthful in his account of the diary entry and what he did with it, it cannot be said to be conclusive of innocence. At most, it weakens the Crown's theory that Ms. Bain was attempting to break off her relationship with the appellant in the days shortly before her disappearance. However, there was other evidence from which the jury could make that determination.

(v) The police searches of Old Kingston Road

[174] As indicated, it was the Crown's position at trial that the appellant moved Ms. Bain's body from Colonel Danforth Park to Lake Scugog in the early morning hours of Friday, June 22, 1990. The appellant now advances fresh evidence that the police searched Colonel Danforth Park on June 21 and did not locate the body. The appellant argues that had the defence been in possession of this information, the jury would have been alerted to a weakness in the Crown's case.

[175] In our view, this evidence is of little significance in the overall scheme of things. The fact that police officers went through the park was relevant information for the jury. However, it cannot be said to be conclusive. Its significance is limited, given the nature and extent of the search. A search of footpaths by two officers can hardly be equated with the full-scale search that was planned for Saturday June 23, 1990, and it was the Crown's position that it was this full-scale search that motivated the appellant to move the body.

(vi) The Bernardo evidence

[176] The appellant sought to introduce a body of fresh evidence to connect Paul Bernardo with the disappearance of Ms. Bain. This evidence established the following:

-- Bernardo was in Scarborough during the days prior to and immediately following her disappearance.

-- Bernardo was very familiar with the Scarborough campus and Colonel Danforth Park.

-- In the late afternoon of the day that Ms. Bain disappeared, a man who looked strikingly like Bernardo was seen in the Humanities Wing of the campus.

-- Bernardo had once met Ms. Bain. [page527]

-- Various pieces of the circumstantial evidence connecting the killer with Ms. Bain and her vehicle were consistent with Bernardo but not with the appellant.

The Crown challenges the worth of this evidence and submits that it is virtually valueless.

[177] Both parties agree that admissibility of such evidence is to be determined by application of the test in R. v. Palmer, supra. Assuming without deciding that the evidence meets that test, the appellant fairly acknowledges that it is not "clearly decisive" of his innocence and that it is principally directed towards the issue of a new trial. We agree with that assessment. It will be for the presiding judge at the new trial to determine whether the evidence should be admitted having regard to the governing principles.

2. Stay of Proceedings

[178] For the first time in oral argument, the appellant asked for a stay of proceedings as an alternative form of relief. The grounds, he argued, were the weakness of the case against him, the volume of new or undisclosed evidence, and the amount of time that he had already served in custody.

[179] The Crown argues that the request caught it by surprise and that it was prejudiced as a result. The Crown points out that a stay is warranted when no other remedy can rectify the harm that has occurred, but the appellant failed to specify the alleged harm. Without knowing the specific harm, the Crown says that it lost the opportunity to create an evidentiary record to counter such allegations.

[180] The question of adequacy of notice was recently canvassed by this court in R. v. Leduc (2003), 176 C.C.C. (3d) 321, [2003] O.J. No. 2974 (C.A.). At para. 72, Laskin J.A. observed that an accused who applies for a stay of proceedings has an obligation to give the Crown reasonable notice of the application and the grounds for it. At para. 73, he stated: "The obvious purpose of notice is to give the Crown a fair opportunity to respond to the application."

[181] Although Leduc considered the question of a stay within the context of an alleged Charter violation, in our view the same requirements apply to stay applications in general. A stay is a draconian remedy. For a court to be in a position to fairly adjudicate on an application for a stay, it must be assured that it has the requisite evidence and record before it. Notice is the mechanism to ensure that such a record exists. While a court may dispense with the notice requirement where the circumstances warrant, absent such dispensation, reasonable notice must be [page528] given. Reasonable notice entails both advising the Crown in a timely fashion that a stay is being sought, and providing the Crown with a sufficient degree of specificity as to the harm alleged to have been suffered so that the Crown has a meaningful opportunity to respond.

[182] In our view, the appellant satisfied neither of these two notice requirements. First, given that the first mention of a stay was during oral argument, it cannot be said that notice was given in a timely fashion. Second, the appellant did not refer to specific harm and the grounds upon which he did base his submission were so general that the Crown was denied a fair opportunity to respond.

[183] In any event, quite apart from the issue of notice, we do not agree that a stay is warranted in this case. While it is difficult to know precisely the harm upon which the appellant founds his request for a stay, it is clear to us that this is not one of those "clearest of cases" that warrants making such an order.

[184] The right of a trial judge to direct a stay was conclusively established by the Supreme Court of Canada in R. v. Jewitt, [1985] 2 S.C.R. 128, 20 D.L.R. (4th) 651. At para. 25, Dickson C.J.C. writing on behalf of the court, adopted what this court said in R. v. Young (1984), 46 O.R. (2d) 520, 13 C.C.C. (3d) 1 (C.A.) about when a stay can be granted in these terms:

[T]here is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings.

Dickson C.J.C. concluded by stating: "I would also adopt the caveat added by the Court in Young that this is a power that can be exercised only in the clearest of cases."

[185] In R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, 114 C.R.R. (2d) 60, Lebel J. writing for the court, reviewed the principles governing the power of the courts to direct a stay of proceedings noting, at para. 117, the draconian nature of a stay and reiterating that it is appropriate only in the "clearest of cases". In para. 118, Lebel J. confirmed the need for a careful and balanced analysis of the interests of the accused and the interest of the public in crime being punished and in criminal cases being diligently prosecuted. He concluded by stating that a stay of proceedings is appropriate and fair where: "(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice." [page529]

[186] After a full examination of the facts of this case and assuming the admissibility of all of the fresh evidence, we have concluded that there is nothing in what transpired that warrants a stay. The fact that the case against the appellant was circumstantial does not and cannot amount to prejudice. There is no evidence that the appellant suffered irreparable prejudice due to the alleged non-disclosure, much less prejudice that will be manifested or aggravated by the conduct of a new trial. There is also no evidence that the Crown was responsible for the lengthy delay in bringing on this appeal. Finally, we note that the appellant (having abandoned the appeal against sentence) would have a further nine years in custody to serve before he would be eligible for parole.

[187] As was the case with the one appellant in R. v. Taillefer, 2003 SCC 70, supra (S.C.C.), we are of the view that it would be premature to order a stay of proceedings. It is stating the obvious to say that the charge of murder is extremely serious. Much of the fresh evidence is in written reports or diary entries, documents that are available to the appellant. No evidence has been lost. Memories can be refreshed through statements given to the police and the transcripts from the preliminary inquiry. Indeed, a new trial will provide the opportunity for both sides to deal with the fresh evidence with the result that the jury will have the benefit of more complete evidence upon which to make the necessary and critical factual determinations. In that sense, the remedy of a new trial appears reasonably capable of removing any prejudice suffered. The comments of the Supreme Court of Canada in Taillefer, supra, at para. 122, are appropriate in this regard:

[A]t this stage in the case, we can only speculate as to the prejudice that the accused would suffer by reason of the impeachment of the witnesses' credibility and the loss of opportunities for investigation. The trial judge will be in a better position to observe and assess the hurdles that the accused will have to surmount and to determine whether his right to make full answer and defence and to a fair trial is jeopardized by holding a new trial. It will be up to that judge to monitor the conduct of the new trial closely, and if necessary to assess the consequences of the passage of time and of the prosecution's conduct in the overall fairness of the proceeding being held before him or her.

[188] Little need be said in relation to abuse of process as there is no evidence and no allegation to this point that the actions of the Crown or police in this case amounted to deliberate wrongdoing or prosecutorial misconduct. This is not a case in which the Crown's conduct disentitles it to a new trial.

[189] In short, it cannot be said that this is one of those "clearest of cases" in which ordering a new trial would violate the [page530] community's sense of fair play or bring the administration of justice into disrepute.

IX. CONCLUSION

[190] In the result, the appeal is allowed, the conviction is quashed and a new trial is ordered.

Appeal allowed.

Notes

Note 1: Colonel Danforth Park is a wooded are south of Old Kingston Road in Scarborough, Ontario. It is close to the University of Toronto, Scarborough Campus where the appellant and Ms. Bain attended as students.

Note 2: In her June 16 diary entry, among other things, Ms. Bain wrote that she "wanted to put a bullet through [the appellant's] head, that he was "becoming a pest", that she had "to break free and be alone" and that the appellant was a drain on her.

Note 3: Elizabeth Bain drove a small silver car distinctively decorated with artificial fingers apparently caught in the car door.

Note 4: Elizabeth Bain's car had a manual transmission. In the out-of-court statements introduced at trial, the appellant first took the position that he could not drive a car with a manual transmission and subsequently, that he could do so if he had to but only with difficulty.

Note 5: As indicated, the legal instruction is outdated but we see no need to dwell on the particulars. The current law will guide the presiding judge at trial.

Note 6: The Crown took the position that all of the evidence in question had been properly disclosed. Our analysis does not require us to finally determine the disclosure issues.