COURT OF APPEAL FOR ONTARIO
DOHERTY, SHARPE and JURIANSZ JJ.A.
B E T W E E N :
P. Andras Schreck and
HER MAJESTY THE QUEEN
Jennifer Trehearne
for the appellant
Respondent
- and -
John Corelli and
RICHARD RAYMOND BABINSKI
Kim Crosbie
for the respondent
Appellant
Heard: November 19, 2004
On appeal from the conviction entered by Justice Eugene Ewaschuk of the Superior Court of Justice, sitting with a jury, on February 11, 2000 and the sentence imposed dated March 6, 2000.
DOHERTY J.A.:
I
Background
1Eva Marie Mead (“Ms. Mead”) disappeared on October 19, 1988. Her body was found seven months later on May 19, 1989. The appellant was charged with first degree murder. He has gone through three trials. He was acquitted in 1990. This court ordered a new trial in 1991 (67 C.C.C. (3d) 187) and that order was affirmed by the Supreme Court of Canada in 1992 (1992 44 (SCC), 76 C.C.C. (3d) 286). The appellant was convicted of first degree murder at his second trial in 1993. In 1999, this court ordered a new trial (1999 3718 (ON CA), 135 C.C.C. (3d) 1). In February 2000, after his third trial, the appellant was convicted of second degree murder. He appeals from that conviction.
2Counsel for the appellant, in their able submissions, contend that the trial judge erred in admitting a tape recording of a conversation between Ms. Mead and the appellant on the day she disappeared. That conversation had been tape recorded by the police with Ms. Mead’s consent, but without the appellant’s knowledge or consent. Counsel also submit that the trial judge made three errors in his instructions to the jury that taken together constitute reversible error.
3I would dismiss the appeal. The tape recording of the conversation between the appellant and Ms. Mead contravened the appellant’s rights under s. 8 of the Charter. The trial judge, however, correctly held that the evidence should not be excluded under s. 24(2) of the Charter. I also find no reversible error in the trial judge’s instructions to the jury.
II
Overview
4It was the theory of the Crown that the appellant was infatuated with Ms. Mead. On October 19, 1988, he found out where she worked and abducted her shortly after she left work. The Crown contended that the appellant forcibly confined Ms. Mead and strangled her later that evening. The Crown argued that the appellant murdered Ms. Mead while forcibly confining her, thereby committing first degree murder.
5It was the position of the defence that the appellant had nothing to do with the disappearance or death of Ms. Mead. The appellant testified and described his movements in the hours prior to and after the disappearance of Ms. Mead. On his evidence, he was travelling north towards Huntsville, Ontario and sleeping in his car near Huntsville throughout the late afternoon and evening of October 19, as well as the early morning hours of October 20, 1988. The defence also argued that the Crown could not prove beyond a reasonable doubt that Ms. Mead had been killed before the afternoon of October 20. The appellant was arrested on October 20 and was in custody from that point forward. He could not have killed Ms. Mead if she died later than the afternoon of October 20.
III
The Evidence
6The appellant and Ms. Mead first met in 1986. Ms. Mead was married. After her husband died in 1987, the appellant wanted a romantic relationship with Ms. Mead. She was not interested. In March 1988, the appellant was charged with sexually assaulting Ms. Mead and was released on bail. His bail conditions required that he not communicate with Ms. Mead.
7In the early morning of Sunday October 16, 1988, the appellant, in breach of his bail order, broke into Ms. Mead’s apartment and waited for her in the dark. When Ms. Mead arrived home, the appellant insisted that they discuss the outstanding sexual assault charges. Eventually, Ms. Mead managed to convince the appellant to leave the apartment. She fled to a neighbour’s apartment and then to her boyfriend’s residence.
8Ms. Mead went to the police on Tuesday, October 18, 1988. She spoke with Officer Gadson, who testified that Ms. Mead was terrified of the appellant. Ms. Mead described the events of the previous Sunday and told Officer Gadson that the appellant had said that he would call her on Tuesday evening. Officer Gadson wanted to charge the appellant with break and enter. Gadson asked Ms. Mead if she would consent to the recording of the telephone conversation with the appellant hoping that the appellant would incriminate himself in the break and enter. Following the accepted practice at the time, Gadson obtained Ms. Mead’s written consent to the interception of the anticipated conversation with the appellant. When the appellant did not call, Ms. Mead, at Gadson’s request, tried unsuccessfully to contact the appellant by telephone.
9Gadson returned to Ms. Mead’s apartment the next day, Wednesday, October 19, 1988 during her lunch break. At his request, she telephoned the appellant at about 12:30 p.m. This conversation was tape recorded by the police with Ms. Mead’s consent. During the conversation, Gadson suggested to Ms. Mead that she make certain comments to the appellant in the hope that he would admit that he had broken into her apartment. The strategy worked and the appellant acknowledged that he had broken into Ms. Mead’s apartment. Also during the conversation, Ms. Mead, on her own initiative, told the appellant where she worked.
10After the conversation was completed, Ms. Mead returned to the bank where she worked. The police went looking for the appellant, intending to arrest him on a break and enter charge. They could not find him.
11Ms. Mead left work at about 5:00 p.m. She was on her way to her mother’s home to pick up her seven year old son for his hockey game. She never arrived. Ms. Mead was last seen at about 6:00 p.m. getting gas at a station north of Toronto. There was a male passenger in the car.
12Mr. Radzikowski, a co-worker of the appellant, testified that the appellant arrived at the factory where they worked at about midnight on October 19, 1988. He asked Radzikowski to tell their boss that he had seen the appellant in the parking lot at about 3:30 that afternoon and that the appellant had said he was not coming to work. The appellant also asked Radzikowski to telephone him and tell him if the police came around the factory asking questions.
13In his initial statement to the police, Radzikowski did not mention seeing the appellant at around midnight on the night Ms. Mead disappeared. He made a second statement in which he gave that information to the police. Radzikowski testified that he did not initially tell the truth because in the society where he grew up the police were feared. He also did not want to incriminate the appellant. It was the appellant’s position that Radzikowski lied in his testimony and that his first statement was true.
14The police went to the appellant’s home on the morning of October 20. He was in the apartment, but when he saw that the police were at the door he did not open it. He was arrested later that day and has been in custody ever since.
15Ms. Mead’s badly decomposed body was found seven months after she disappeared in a creek bed running through a field behind the factory where the appellant worked. She was naked and ligatures were found around her ankles and left forearm. The pathologist determined that Ms. Mead had been strangled. He could not determine the time of death. The wire ligatures found on her wrists and ankles bore the brand name “Pirelli”. This brand of wire is imported from Italy and is the same kind of wire that had been removed from a machine in the factory where the appellant worked. The appellant had access to both the machine and the wire.
16The appellant testified. He acknowledged breaking into Ms. Mead’s apartment on October 16, 1988. He said that he wanted to straighten out the “misunderstanding” that had led to the sexual assault charge. He testified that on October 18, 1988, the day before Ms. Mead disappeared, he purchased a used car in Scarborough. He left his old car at the vendor’s residence. The used car did not work properly so the appellant decided to return it. He drove to Scarborough on the afternoon of October 19, 1988. The vendor refused to refund the purchase price, but did try to repair the vehicle for the appellant. At about 3:30 or 4:00 p.m., the appellant left the vendor’s residence in Scarborough in his old car indicating to the vendor that he was in a hurry. He was scheduled to begin work at 3:30 p.m. At about 3:30 p.m., he called his employer and said that he would be late or may not be into work at all that day.
17The appellant testified that he was upset about the car he had purchased and decided on the spur of the moment to buy a bottle of rum and drive to his uncle’s home near Huntsville for a visit. He consumed the rum as he drove northward on Highway 400. Just before he reached Huntsville, he was intoxicated and so tired that he stopped at the side of the road and went to sleep. He woke up in the middle of the night and decided that it was too late to visit his uncle. He drove back to Toronto. The appellant arrived home at around 2:00 a.m. on October 20, 1988.
18The appellant testified that the police knocked at his door on the morning of October 20. He decided not to answer the door when he saw that it was the police. He telephoned his uncle and asked his uncle to provide him with a false alibi for the night of October 19 and a false alibi for the time of the break and enter at Ms. Mead’s apartment on October 16. The appellant testified that he asked his uncle to lie for him because he was afraid that he would charged with breaching the terms of his bail order.
IV
The admissibility of the intercepted conversation between Ms. Mead and the appellant
19The Crown tendered a tape recording of the conversation between Ms. Mead and the appellant on October 19, 1988. In the course of the conversation, the appellant admitted that he had broken into Ms. Mead’s home earlier that week. The Crown also relied on the contents of the conversation to fix the appellant with knowledge of where Ms. Mead worked.
20The conversation was intercepted and recorded by Officer Gadson with the express written consent of Ms. Mead, one of the participants to the conversation. Obviously, the appellant, the other participant, was unaware that the police were intercepting and recording the conversation.
21The interception of the conversation with the consent of Ms. Mead, one of the participants, was lawful and in accord with the provisions of the Criminal Code as they existed in October 1988. Those provisions permitted the interception of a private communication where one of the parties to the communication consented to that interception before it was made: Criminal Code R.S.C. 1970, c. C-34, s. 178.11(2)(a). Also, when the police intercepted Ms. Mead’s conversation with the appellant, this court had held that consensual interceptions did not violate the privacy rights of the non-consenting party to the conversation: R. v. Sanelli (1987), 1987 175 (ON CA), 38 C.C.C. (3d) 1 (Ont. C.A.).
22About 15 months after the police intercepted and recorded Ms. Mead’s conversation with the appellant, the Supreme Court of Canada reversed the decision of this court and held that interceptions made with the consent of one party to the communication, but without prior judicial authorization, could infringe the privacy right protected by s. 8 of the Charter of the non-consenting party: R. v. Duarte (1990), 1990 150 (SCC), 53 C.C.C. (3d) 1 (S.C.C.). LaForest J. said at p. 21:
A conversation with an informer does not amount to a search and seizure within the meaning of the Charter. Surreptitious electronic interception and recording of a private communication does. Such recording, moreover, should be viewed as a search and seizure in all circumstances save where all parties to the conversation have expressly consented to its being recorded. Accordingly the constitutionality of “participant surveillance” should fall to be determined by application of the same standard as that employed in third party surveillance, i.e., by application of the standard of reasonableness enunciated in Hunter v. Southam Inc. [(1984), 1984 33 (SCC), 14 C.C.C (3d) 97]. By application of that standard, the warrantless participant surveillance engaged in by the police here was clearly unconstitutional [emphasis in original].
23In light of the holding in Duarte, it was common ground at trial and on appeal that the interception of the appellant’s conversation with Ms. Mead on October 19, 1988, contravened the appellant’s right to privacy under s. 8, despite Ms. Mead’s consent to the interception. Counsel for the appellant argued at trial that the intercepted communication should be treated as conscriptive evidence for the purposes of s. 24(2) of the Charter. He contended that if the evidence was so characterized it must be excluded. I do not understand the appellant to have argued at trial or on appeal that if the intercepted communication was not conscriptive evidence, it should still have been excluded under s. 24(2).
24At trial, and again on appeal, counsel argued that the recording of the intercepted communication was conscriptive evidence because Ms. Mead had acted as a police agent in the course of the conversation. Counsel emphasized Ms. Mead’s initiation of the conversation and her efforts, at the direction of Officer Gadson, to direct the conversation towards obtaining an admission from the appellant that he had broken into her home.
25The trial judge rejected this argument and concluded that the recording of the conversation was not conscriptive evidence. He held that while Ms. Mead’s role in the conversation would be relevant had the appellant been under detention at the time of the conversation, it had no relevance in the circumstances of this case.
26I agree with the trial judge’s conclusion. The admissibility of the recording of the appellant’s conversation with Ms. Mead stands on exactly the same footing as the admissibility of the intercepted communications in Duarte. In both cases, the police acted under the entirely reasonable belief that interceptions made with the consent of one of the participants were lawful and constitutional. In ruling that the recorded conversations should be admitted in Duarte despite the s. 8 violation, LaForest J. referred to the s. 24(2) analysis announced in R. v. Collins (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1 (S.C.C.) and identified trial fairness as “of cardinal importance”. He then said at p. 23:
Undoubtedly, the breach infringed upon an important Charter right, and the evidence could have been obtained without breaching the Charter. But what strikes one here is that the breach was in no way deliberate, wilful or flagrant. The police officers acted entirely in good faith. They were acting in accordance with what they had good reason to believe was the law – as it had been for many years before the advent of the Charter. The reasonableness of their action is underscored by the seriousness of the offence. They had reasonable and probable cause to believe the offence had been committed, and had they properly understood the law, they could have obtained an authorization under the Code to intercept the communication. Indeed, they could have proceeded without resorting to electronic surveillance and relied solely on the evidence of the undercover officer or the informer. In short, the Charter breach stemmed from an entirely reasonable misunderstanding of the law by the police officers who would otherwise have obtained the necessary evidence to convict the accused in any event. Under these circumstances, I hold that the appellant has not established that the admission of the evidence would bring the administration of justice into disrepute.
27Counsel attempts to distinguish Duarte on the basis that Ms. Mead played an active role at the behest of the police in obtaining incriminating evidence from the appellant during the conversation. There is no reason to assume, as counsel for the appellant does, that the police agents involved in the conversation in Duarte played a passive role. The reasons of LaForest J. contain no reference to the role played by the state agents involved in the conversation. In describing that conversation, LaForest J. said at p. 5:
As a result of the operation, the undercover officer met a man named Paul Vidotto. Some days after the meeting, Vidotto, the appellant Mario Duarte and two others attended at the apartment and discussed a cocaine transaction with the undercover officer and the informer. The undercover officer made notes of these and a subsequent conversation which he acknowledged were based upon a review of the tapes of the conversations.
28I cannot accept that the classification of the intercepted communications as conscriptive or non-conscriptive turned on the role played by the state agents in the conversation when LaForest J. saw no need to even refer to that role. I take the absence of any such reference to mean that the role played by the state agents in the conversation was irrelevant to whether the evidence was conscriptive or non-conscriptive and irrelevant to the ultimate admissibility of the intercepted communications under s. 24(2) of the Charter.
29The appellant’s position when he spoke to Ms. Mead cannot be equated with that of an accused who while in custody makes a statement that is elicited by an undercover state agent. In that circumstance, an accused’s right to silence under s. 7 of the Charter and the right to counsel under s. 10(b) of the Charter are engaged: R. v. Hebert (1990), 1990 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.); R. v. Broyles (1991), 1991 15 (SCC), 68 C.C.C. (3d) 308 (S.C.C.). Cases like Hebert and Broyles turn on the presumptively coercive nature of state detention and its impact on a detained person’s right to choose whether to speak to the authorities, and the right of a detained person to the assistance of counsel. Neither consideration has application in this case. The appellant was under no form of state coercion and was not subjected to any state inducement when he chose to speak to Ms. Mead. Nor did he have a constitutional right to counsel: R. v. Sobotiak (1994), 1994 ABCA 177, 155 A.R. 16 at 21 (C.A.).
30Authorities decided subsequent to Duarte offer strong support for the Crown’s contention that communications of an accused intercepted in violation of his s. 8 rights do not amount to conscriptive evidence for the purposes of s. 24(2) of the Charter. None of these cases suggest that the degree to which the state agent solicited the incriminating statements is relevant to the determination of whether the intercepted communications constituted conscriptive evidence: R. v. Wijesinha (1995), 1995 67 (SCC), 100 C.C.C. (3d) 410 at 428 (S.C.C.); R. v. Wong (1990), 1990 56 (SCC), 60 C.C.C. (3d) 460 at 486-88 (S.C.C.); R. v. Solomon (1997), 1997 329 (SCC), 118 C.C.C. (3d) 351 (S.C.C.); R. v. Pope (1998), 1998 ABCA 267, 129 C.C.C. (3d) 59 at 62-64 (Alta. C.A.); R. v. Rendon (1999), 140 C.C.C. (3d) 12 at 47-48 (Que. C.A.), aff’d (2001), 2001 SCC 34, 156 C.C.C. (3d) 222 (S.C.C.); R. v. Mooring (2003), 2003 BCCA 199, 174 C.C.C. (3d) 51 at 59-60 (B.C.C.A.).
31R. v. Fliss (2002), 2002 SCC 16, 161 C.C.C. (3d) 225 (S.C.C.), although a very different case factually, also assists in determining whether the role played by the state agent is relevant to whether intercepted communications constitute conscriptive evidence.
32Fliss confessed to murder to an undercover police officer who was wearing a body pack. The confession was precipitated by an elaborate ruse whereby the undercover officer, posing as a criminal, offered to make available to Fliss someone who was dying of cancer who would be prepared for an appropriate fee to confess to the murder that Fliss was suspected of having committed. The undercover officer told Fliss that the arrangement could proceed only if Fliss could provide sufficient details of the murder to make the false confession credible. When Fliss proceeded to give those details to the undercover officer, they were recorded with the body pack.
33The trial judge held that the authorization relied on to permit the interception of Fliss’s communications was unlawful and that the interceptions violated his rights under s. 8. The trial judge ruled that the tape recordings were inadmissible. He did, however, allow the undercover officer to testify as to the contents of the conversation. In doing so, the officer virtually read into the record the transcript of the intercepted communication. He had no independent recollection of some parts of that conversation.
34In the Supreme Court of Canada, Binnie J., for the majority, held at pp. 245-46 that the use of the parts of the transcript of which the officer had no independent recollection violated the accused’s rights under s. 8 of the Charter. Binnie J. then went on to consider whether the officer’s evidence, insofar as it did not flow from his own recollection of the conversation, should have been excluded under s. 24(2). He first held that the admission of that part of the officer’s evidence would not undermine trial fairness, declaring at p. 248:
The proper focus at this stage is therefore on the actions involved in obtaining the evidence rather than on the form in which the evidence exists.
Applying the above principles to this case, it is clear that the appellant was not detained nor was he compelled to confess to the murder. Instead, the confession was freely volunteered to someone the appellant thought was just another influential crook. The Charter breach (the secret recording) neither caused nor contributed to the appellant’s statements [emphasis added].
35The analysis in Fliss is inconsistent with the submission advanced by counsel for the appellant. The strategy employed by the police in Fliss was intended to and did in fact elicit incriminating statements from the accused. Without that strategy, Fliss would not have provided the details. However, as the strategy in no way compelled the accused to incriminate himself, it had no relevance to whether the statements made by Fliss should be regarded as conscriptive for the purposes of s. 24(2) of the Charter.
36The trial judge’s finding that the tape recording of the conversation was not conscriptive evidence is also consistent with the description of conscriptive evidence provided in the leading case of R. v. Stillman (1997), 1997 384 (SCC), 113 C.C.C. (3d) 321 at 353-59 (S.C.C.). According to Stillman, conscriptive evidence has three characteristics:
it must emanate from the accused;
the accused must be compelled to participate in the creation or discovery of the evidence; and
the compulsion must be in violation of an accused’s Charter rights.
37The statements made by the appellant in the tape recorded conversation certainly emanated from him. However, nothing in the circumstances in which the statement was made, or in the conversation itself, could possibly constitute state compulsion. Ms. Mead merely directed the conversation in a way that was intended to elicit admissions concerning the break and enter. She in no way coerced or otherwise pressured the appellant to speak about the break and enter. The appellant was under no compulsion to speak to Ms. Mead and nothing she said compelled him to make the statements that he made.
38The fact that the appellant did not know that the police were intercepting and recording the conversation was relevant to whether the appellant’s privacy right was infringed. The surreptitious recording of the conversation denied the appellant the ability to choose his audience, an integral aspect of personal privacy: Duarte, supra, at p. 16. The fact that the appellant was denied his right to choose his audience does not mean that what he said to Ms. Mead was compelled. The surreptitious recording did not compel or coerce the appellant to speak. The recording was not conscriptive evidence in the sense described in Stillman.
39In concluding that the evidence is not conscriptive, I have considered the passage in Duarte, supra, at p. 17 where, in the context of describing the infringement of the s. 8 right, LaForest J. describes a person who does not choose the audience to which he speaks as being “compelled” to speak to that audience. As I read the entirety of that passage, LaForest J. meant only to convey the notion that individuals have a right to choose to whom they speak and that surreptitious recording, even where consented to by one party, strips the individual of that right. Surely, had LaForest J. intended to use the word “compelled” in the way that it has come to be used in s. 24(2) analysis, he would have made some reference to conscription in his analysis of the admissibility of the evidence. His s. 24(2) analysis refers to trial fairness as of prime importance, but does not suggest that the admission of the tape recordings could adversely affect trial fairness. His s. 24(2) analysis is inconsistent with the contention that LaForest J. viewed the tape recordings as compelled self-incriminatory evidence.
40The intercepted communication was non-conscriptive evidence and was properly admitted by the trial judge.
V
The alleged errors in the charge to the jury
(i) The manslaughter instruction
41It was the position of the Crown that whoever killed Ms. Mead was guilty of murder and that there was no air of reality to a manslaughter verdict. In the pre-charge discussions, counsel for the appellant took the position that while manslaughter was no part of the defence position, it was open to the jury on the evidence to have a reasonable doubt as to whether the killer had the requisite intent for murder. Counsel took the position that as a matter of law, manslaughter should be left with the jury.
42On appeal, no issue is taken with the trial judge’s legal instructions on manslaughter. However, counsel contend that the trial judge repeatedly and improperly described the potential verdict of manslaughter as a secondary position taken on behalf of the appellant. Counsel submits that in doing so, the trial judge undermined the credibility of the accused’s denial of any involvement in Ms. Mead’s death, the only defence advanced on his behalf. Counsel submit that the instruction made the trial unfair and resulted in a miscarriage of justice.
43When the trial judge’s instructions are read as a whole, they make it abundantly clear to the jury that the appellant’s defence was that he had nothing to do with Ms. Mead’s death. The trial judge provided a detailed summary of the appellant’s evidence concerning his whereabouts at the relevant times on more than one occasion in the course of his instruction. On two occasions, however, the trial judge did refer to the possible verdict of manslaughter as a “secondary” or “alternative” position advanced by the defence. For example, the trial judge said:
The accused respectfully submits he’s not guilty of second degree murder on those 2 grounds. The primary ground is on the basis that the Crown has failed to prove beyond a reasonable doubt the accused was the person who killed Eva Marie Mead. The alternative ground is on the basis that the Crown failed to prove beyond a reasonable doubt that the killer of Eva Marie Mead had either intent requisite for the crime of second degree murder [emphasis added].
44Counsel for the appellant at trial objected to the charge on exactly the grounds advanced in this court. Counsel contended that manslaughter should not have been described as a position taken by the defence, but rather as a verdict open to the jury on the evidence. The trial judge declined to re-charge the jury. He observed that since the defence wanted manslaughter left with the jury, that verdict had to be associated with the position of the defence in the jury instructions.
45In a murder case, a trial judge is obliged to instruct the jury on the possibility of a conviction on the included offence of manslaughter if on all of the evidence there is an air of reality to a finding that the Crown had not proved beyond a reasonable doubt that the killer had either of the requisite intents required for murder: R. v. Aalders (1993), 1993 99 (SCC), 82 C.C.C. (3d) 215 at 234-35 (S.C.C.). A trial judge is also obliged to fully and fairly put the position of the defence to the jury in his instructions.
46Where the included offence of manslaughter is available on the evidence, but is inconsistent with the position advanced by the defence, the trial judge must leave the possibility of a verdict of manslaughter with the jury in a way that does not undercut the position taken by the defence. The trial judge may accomplish this task by putting manslaughter to the jury as a possible verdict in law without in any way connecting that possibility to the defence position. The trial judge may also go a step further and instruct the jury that while manslaughter is available as a matter of law, it is not any part of the defence position that the jury should return a manslaughter verdict.
47In choosing between these alternatives, a trial judge must understand that the formulation of the defence position lies at the very core of counsel’s responsibility at trial. It is not the responsibility of the trial judge. Subject to ensuring the legal tenability of the defence position, the existence of an appropriate evidentiary basis for that opinion, and the comprehensibility of that position as framed by counsel, the trial judge should put the defence to the jury in a way that is consistent with and reflects the position taken on behalf of the accused by counsel.
48Prior to instructing the jury, a trial judge should determine defence counsel’s position both with respect to the legal availability of a manslaughter verdict and with respect to the role, if any, that the potential verdict of manslaughter plays in the position of the defence. If manslaughter is legally available, but counsel wants the jury told that a manslaughter verdict is no part of the defence position, the trial judge should make it clear to the jury that while manslaughter is legally available on the evidence, it is not part of the defence position that the jury should return a verdict of manslaughter: R. v. Tombran (2000), 2000 2688 (ON CA), 142 C.C.C. (3d) 380 and 396-98 (Ont. C.A.); R. v. Diu (2000), 2000 4535 (ON CA), 144 C.C.C. (3d) 481 at 531-33 (Ont. C.A.).
49The trial judge was wrong in describing the possibility of a manslaughter verdict as part of the position of the defence. As this court has indicated in the past, counsel’s contention that manslaughter is available on the evidence does not mean that the possibility of that verdict should be described as a position of the defence: Tombran, supra; Diu, supra. The verdicts that are available on the evidence and the position advanced by the defence are two separate matters.
50The trial judge’s description of the possible verdict of manslaughter as a secondary position advanced by the defence does not amount to an error in law. The description constitutes reversible error only if it rendered the trial unfair by deprecating the actual position of the defence taken at trial. In evaluating the effect of the trial judge’s mis-description of the defence position, the entirety of the charge must be considered. The evaluation should be made from the vantage point of jurors who will be less sensitive to legal phraseology like “the position of the defence” than are those who are regularly involved in the process. On my reading of the charge, the defence position, that is that the appellant had nothing to do with the disappearance or death of Ms. Mead, was forcefully and repeatedly put to the jury. I do not think that the references to the possible verdict of manslaughter would have detracted from those instructions. I think the jury would have understood the manslaughter references as an indication that even if they found against the appellant on his defence, they still had to address the question of whether the Crown had proved either of the intents necessary to constitute murder. The trial judge’s erroneous description of the possible verdict of manslaughter as a position of the defence did not render this trial unfair or result in a miscarriage of justice.
(iii) The false alibi instruction
51The appellant admittedly attempted to solicit his uncle’s assistance in establishing a false alibi for his whereabouts on the evening of October 19 and the early morning of October 20 when Ms. Mead disappeared. That false alibi was circumstantial evidence that the jury could consider in deciding whether the Crown had proved that the appellant abducted and killed Ms. Mead.
52The appellant offered an innocent explanation for the attempt to procure a false alibi. He testified that he was afraid that he would be charged with violating his bail terms and asked his uncle to lie for him.
53The appellant does not take exception to the substance of the false alibi instructions. Those instructions alerted the jury to the inference urged by the Crown, and the countervailing defence explanation. The trial judge told the jury that the evidence could assist the Crown only if the jury rejected the defence explanation for the false alibi. Indeed, the trial judge went further and cautioned the jury that evidence such as the false alibi was generally not considered to be compelling evidence. The substance of the trial judge’s instructions were consistent with binding authorities: R. v. White (1998), 1998 789 (SCC), 125 C.C.C. (3d) 385 (S.C.C.); R. v. Peavoy (1997), 1997 3028 (ON CA), 117 C.C.C. (3d) 226 (Ont. C.A.).
54Counsel for the appellant submits, however, that the instruction was improper in that the trial judge referred to the false alibi evidence as potential evidence of “consciousness of fault”. Counsel contends that this phrase carries the same danger of misleading the jury as the now discredited phrase “consciousness of guilt”: White, supra, at 398. Crown counsel argues that the phrase “consciousness of fault” does not undermine the presumption of innocence in the same way as the phrase “consciousness of guilt”.
55I see no value or purpose in using either phrase. The false alibi is a piece of circumstantial evidence. The significance to the jury is its relevance to a fact in issue. In this case, the false alibi, assuming the jury rejected the defence explanation for it, had relevance to the identification of the appellant as the person who abducted and killed Ms. Mead. Its potential significance is best explained simply by reference to the material fact to which it is relevant without resort to any catch phrase. The trial judge did this:
It is, however, important to note that in this case you may also use the accused’s phonecall [sic] to his uncle as evidence that he was the killer of Eva Mead, but only if he intended his uncle to fabricate the alibi, not for the purposes of covering up his failure to comply with bail undertakings, but for the purpose of accounting for his absence from Toronto when Mrs. Mead was abducted and killed.
56The phrase “consciousness of fault” does not add to a jury’s understanding of the potential value of this evidence and is consequently best avoided. Its use here, however, did not amount to an error of law and did not occasion any unfairness to the appellant.
(iv) The trial judge’s reference to the “likely” time of death
57During his instructions, and in the course of referring to the appellant’s testimony as to his whereabouts at the time Ms. Mead disappeared, the trial judge indicated that Ms. Mead was “likely killed” and left where she was eventually found some time during the evening of October 19 or the early morning of October 20. The medical evidence could not offer any firm estimate as to the time of death because of the body’s advanced state of decomposition. On the medical evidence, it was possible that Ms. Mead was killed after the appellant’s arrest on the afternoon of October 20.
58The appellant contends that the trial judge’s opinion as to the likely time of death effectively neutered the defence contention that he could not be convicted as the Crown could not prove beyond a reasonable doubt that Ms. Mead was killed before the appellant was arrested on October 20. He remained in custody from that time forward.
59I see no merit to this submission. First, the trial judge’s expression of his opinion as to the likely time of death was in no way binding on the jury and this was made clear to them in the trial judge’s instructions. Second, the trial judge did expressly tell the jury that if the Crown did not prove beyond a reasonable doubt that Ms. Mead was killed before the appellant was arrested, that the appellant must be acquitted:
Finally, I note that the accused was arrested around 4:00 p.m. on Thursday, October 20th, 1988, and was still in custody when Eva Mead’s body was found on May 19th, 1989, several months later.
Thus, the Crown must satisfy you beyond a reasonable doubt that Eva Mead was killed before the accused was placed in custody. Otherwise, the accused has an indisputable valid alibi after that point in time, after he was arrested by the Police.
60I have no doubt that the jury fully appreciated the self-evident proposition expressed by the trial judge in the instructions quoted above.
VI
Conclusion
61I would dismiss the appeal.
RELEASED: “DD” “JAN 20 2005”
“Doherty J.A.”
“I agree Robert J. Sharpe J.A.”
“I agree Russell G. Juriansz J.A.”