Her Majesty the Queen v. Vanezis

[Indexed as: R. v. Vanezis]

83 O.R. (3d) 241

Court of Appeal for Ontario,

Moldaver, Sharpe and Juriansz JJ.A.

November 10, 2006

Criminal law -- Evidence -- Character evidence -- Accused's defence to murder charge that victim was murdered by her boyfriend -- Both accused and boyfriend having violent criminal records -- Accused seeking to cross-examine deceased's boyfriend (H) about his confession to killing and about his prior violence against deceased relevant to his motive to kill her -- Defence undertaking not to explore boyfriend's general propensity for violence -- Crown taking position that it needed to explore H's general propensity for violence in order to undermine his credibility and that accused's general propensity for violence should also be put before jury to avoid leaving lopsided impression -- Trial judge erring in permitting Crown to adduce highly emotive and strongly prejudicial evidence of accused's bad character and to question him on facts underlying his prior convictions for violence -- Crown's strategy of placing boyfriend's general propensity for violence before jury unfair to accused -- Crown presenting strong case but improper admission of bad character evidence may have led to jury's rejection of evidence regarding other suspect -- Curative proviso not applicable -- New trial ordered.

Criminal law -- Evidence -- Opinion evidence -- Police officer testifying in murder trial that he used software to perform audit on case and excluded all suspects but accused as victim's murderer -- Evidence inadmissible -- Evidence irrelevant -- Accused not attacking police investigation -- Trial judge should have instructed jury to ignore evidence -- If had been only error would have applied proviso as would be obvious police thought Crown prosecuting correct person and jury would not have placed reliance on officer's opinion -- Evidence constituting impermissible opinion evidence.

Criminal law -- Appeals -- New trial versus acquittal -- Accused tried for murder for third time -- First trial resulting in mistrial due to juror's inability to agree -- Conviction in second trial overturned on basis of fresh evidence later shown to be insignificant -- Conviction in third trial overturned on basis of improper admission of evidence of accused's bad character -- Depending on credibility assessment by jury Crown's very strong -- Appropriate to order new (fourth) trial rather than acquittal.

The accused was charged with second-degree murder. The victim was murdered in the accused's apartment. The accused's position was that he did not know the victim, that he was away from his apartment on the night of the murder, and that the victim was murdered by her boyfriend H. This "alternate suspect" defence was available to the accused on the evidence that implicated H as the victim's killer. Therefore, in order to convict the accused, the jury initially had to be satisfied beyond a reasonable doubt that H did not kill the victim. Both the accused and H had criminal records for offences involving violence and dishonesty. Defence counsel sought a ruling from the trial judge that would have permitted her to lead evidence from H of his threats and acts of violence towards the victim but no one else. She made it clear that it was her intention to show not that H was the kind of person likely to kill the victim, but that he was in fact the [page242] person who did so. She was anxious not to put H's general disposition and propensity for violence in issue, as that would open the door for the Crown to lead evidence of the accused's general disposition and propensity for violence. Defence counsel undertook not to question H about the details of his prior convictions for violence against third parties. The Crown, based on the fact that the accused intended to rely on H's "confessions" to other people that he had killed the victim, wanted to be able to explore the details of H's violent conduct towards third parties in order to show that he was a disreputable character and that the jury should give no credence to his confessions. Because H's general propensity for violence would be exposed to the jury, Crown counsel argued that the accused's general propensity for violence should also be before the jury, to avoid leaving the jury with a lopsided view of the case. The trial judge ruled that the threats and acts of violence attributed to H constituted evidence of propensity no matter how defence counsel might choose to present them, and that fairness dictated that the Crown should be able to respond in kind. The Crown was permitted to tender evidence of the accused's bad character and to question the accused on the facts underlying his prior convictions for violence. The accused was convicted. He appealed.

Held, the appeal should be allowed.

The trial judge erred in permitting the Crown to lead evidence of the accused's general disposition for violence. On the approach proposed by the defence, H's general propensity for violence was essentially a non-issue. It only became an issue because of the approach proposed by the Crown. It was difficult to understand how H's violence towards third parties was likely to assist the jury in deciding whether his confessions were true or not. In any event, it was unfair that the defence should be called to account for a strategy pursued by the Crown that placed H's general propensity for violence squarely before the jury when the defence sought to keep that evidence away from the jury. The Crown's strategy enabled it to lead evidence of H's general disposition for violence and then cry foul because the jury did not have comparable evidence in respect of the accused. The trial judge's ruling resulted in the admission of a significant body of strongly emotive bad character evidence. It was highly prejudicial and likely to have been used by the jury as a basis for rejecting the "alternate suspect" defence. Moreover, it resulted in detailed instructions on propensity evidence and the use the jury could make of it. Those instructions were unnecessary and may well have deflected the jury's attention from the task at hand. In the circumstances, the curative provision in s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 could not be applied to sustain the conviction.

The officer in charge of the case testified at trial that he used state-of-the-art computer software to perform an audit on the case in order to determine whether any of five possible suspects could be excluded as the victim's possible killer, and that he was able to exclude all of the suspects except the accused. That evidence was inadmissible for two reasons: first, it was irrelevant, as the defence had not attacked the police investigation; and second, it constituted impermissible opinion evidence. The trial judge should have instructed the jury to ignore it. However, had this error stood alone, the curative proviso would have been applied and the conviction would have been upheld.

This was the accused's third trial. The first jury could not agree and a mistrial was declared. The conviction registered in the second trial was overturned on appeal based on fresh evidence, shown later to be apparently worthless. Following the conviction at the third trial being overturned, the accused argued that he [page243] should be acquitted, as he had already faced three trials for this 1995 murder. Depending on what view the jury took of credibility, the Crown's case was potentially very strong, although not overwhelming. The appropriate result was to order a new trial and leave it to the discretion of the Crown whether to proceed with a fourth trial.

APPEAL from a conviction by Gordon J. of the Superior Court of Justice, sitting with a jury, dated December 6, 2003, on a charge for second degree murder.

Cases referred to R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609, [1999] O.J. No. 688, 169 D.L.R. (4th) 639, 132 C.C.C. (3d) 97, 23 C.R. (5th) 37 (C.A.); R. v. G. (S.G.), 1997 311 (SCC), [1997] 2 S.C.R. 716, [1997] S.C.J. No. 70, 148 D.L.R. (4th) 423, 214 N.R. 161, [1997] 7 W.W.R. 629, 116 C.C.C. (3d) 193, 8 C.R. (5th) 198; R. v. J.C., [2002] O.J. No. 5263, [2002] O.T.C. 1056, 57 W.C.B. (2d) 198 (S.C.J.); R. v. MacDonald, 1974 1641 (ON CA), [1974] O.J. No. 721, 20 C.C.C. (2d) 144, 27 C.R.N.S. 212 (C.A.); R. v. Misir, 2001 BCCA 202, [2001] B.C.J. No. 499, 86 B.C.L.R. (3d) 332, 153 C.C.C. (3d) 70 (C.A.); R. v. Vanezis, 2002 11051 (ON CA), [2002] O.J. No. 994, 156 O.A.C. 143, 53 W.C.B. (2d) 129 (C.A.); R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811, [1982] S.C.J. No. 40, 136 D.L.R. (3d) 89, 41 N.R. 606, [1983] 1 W.W.R. 193, 67 C.C.C. (2d) 1, 27 C.R. (3d) 304 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii) [as am.]

Philip Campbell and Michael Dineen, for appellant. Jamie Klukach, for respondent.

The judgment of the court was delivered by

[1] MOLDAVER J.A.: -- Pamela Bonn was murdered on the night of May 23, 1995. Within a week of her death, the appellant was arrested and charged with second-degree murder.

[2] On December 6, 2003, some eight and one-half years later, the appellant was found guilty as charged following his trial before the Honourable Mr. Justice D.J. Gordon and a jury. The lengthy delay is explained by the fact that this was the appellant's third trial. At his first trial, the jury could not agree and a mistrial was declared; at his second trial, the jury found him guilty as charged but on appeal, this court set aside the conviction and ordered a new trial. Hence, the third trial and the ensuing conviction from which the appellant now appeals.

[3] The appellant seeks to have his conviction set aside on the basis of three alleged errors at trial. Specifically, he contends that:

(1) the trial judge erred in permitting the Crown to lead evidence of his general disposition for violence; [page244]

(2) the trial judge erred in permitting the Crown to lead inadmissible opinion evidence from the officer in charge of the case; and

(3) the trial judge erred in failing to give the jury a Vetrovec warning in respect of two witnesses who gave important evidence for the Crown.

[4] For reasons that follow, I am satisfied that there is merit in the first two grounds of appeal. As between the two, the second ground causes me little concern. Had it stood alone, I would have applied the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 to sustain the conviction.

[5] The first ground, however, is another matter. It resulted in the wrongful admission of bad character evidence that portrayed the appellant as a man of violence. As such, it was highly prejudicial and likely to have been used by the jury as a basis for rejecting the appellant's "alternate suspect" defence. (The appellant's defence was that Ms. Bonn was killed by her boyfriend Jeffrey Hertel.) In a case as close as this one, where the evidence going to the identity of Ms. Bonn's killer was finely balanced and where the verdict could realistically have gone either way, there was unfortunately no room for an error of this nature. I say "unfortunately" because the trial was a difficult one and, apart from the one error of substance, the trial judge conducted the proceedings in an exemplary fashion. His charge to the jury was a model of clarity and balance and he made every effort to ensure that both sides received a fair trial. Ironically, it was in that context -- ensuring fairness to the Crown -- that he admitted the impugned bad character evidence. With respect, I believe that he erred in doing so and that the error does not lend itself to the application of the curative proviso. Accordingly, I would allow the appeal, set aside the conviction and order a new trial.

Background Facts and Positions of the Parties

[6] Because I have determined that there must be a new trial, I do not propose to detail the evidence except where necessary to flesh out a particular ground of appeal. The salient facts will become apparent as I review the positions of the parties.

[7] Pamela Bonn was beaten to death sometime between the hours of 9:00 p.m. on Tuesday, May 23 and 2:00 a.m. on Wednesday, May 24, 1995. She was killed in apartment 13 at 105 Mausser Avenue in the City of Kitchener. That was the appellant's apartment and it is where he lived in the several months leading up to the homicide. [page245]

[8] Ms. Bonn's body was found in Mausser Park on Thursday, May 25. The park is located a short distance from the appellant's apartment building. In the early morning hours of May 25, several witnesses observed a man pushing a recycling bin to and from the direction of the park. After the appellant's arrest on May 26, a recycling bin belonging to his apartment building was searched and various items containing his fingerprints were found in it. The Crown took the position at trial that the appellant was the man seen pushing the bin and that he used it to transport Ms. Bonn's body from his apartment to the park where she was eventually found.

[9] While no one disputed that Ms. Bonn was killed in the appellant's apartment, the appellant claimed that he was not at his apartment on the night of the murder. He testified instead that earlier that evening, he turned his apartment over to a prospective new tenant by the name of Lou De Paepe. He did so because he was in the process of being evicted and De Paepe mentioned that he would be interested in taking over the unit. As a result, De Paepe made arrangements to meet with the appellant's landlady later that evening and the appellant decided to leave to avoid a confrontation with her. According to the appellant, he spent the night of May 23 and the following night at 78 Waterloo Street with some friends and he did not return to his apartment until the morning of Thursday, May 25. Hence, he denied having anything to do with Ms. Bonn's murder. Indeed, he claimed that as of May 23, he did not even know Ms. Bonn.

[10] The same could not be said for Jeffrey Hertel. He was Ms. Bonn's boyfriend in the year or so preceding her death and there was evidence that their relationship was a stormy one and that he regularly threatened and beat her. As such, he was the one who had a motive to kill Ms. Bonn, not the appellant. In the several weeks before her death, Ms. Bonn confided to some of her friends that she was afraid of Hertel and that he had threatened to kill her once he was released from prison. On the day of her murder, she told a friend that Hertel (who by now was out of prison) was "after her" and she asked her friend not to disclose her whereabouts to him. In the same conversation, she told her friend that she was on her way to see the appellant at his apartment on Mausser Avenue. (As will be seen, despite the appellant's evidence to the contrary, five Crown witnesses testified that the appellant did know Ms. Bonn.)

[11] As indicated, it was the appellant's position that Ms. Bonn was killed by Hertel. In addition to evidence of motive, he also relied on the fact that De Paepe and Hertel were close friends and that he had left De Paepe alone in his apartment on the [page246] night of Ms. Bonn's murder. Further support for his position came from a witness who observed two men in the early morning hours of Thursday, May 25, "carrying something heavy wrapped in a blanket" on a path leading to the park where Ms. Bonn's body was discovered later that day. That, of course, fit with the appellant's position that Hertel had killed Ms. Bonn, either alone or in the company of De Paepe, and that De Paepe had assisted him in disposing of the body and then removing from the apartment any evidence that might link them to the scene.

[12] The appellant gained added support for his position from several witnesses who overheard Hertel saying that he (Hertel) had killed Ms. Bonn and that the police had "got the wrong guy". Hertel's attempt to set up a false alibi for the night of the murder and his "disappearance" for two weeks after the event provided the appellant with further evidence implicating Hertel as the killer.

[13] In sum, without wishing to overstate the appellant's case, there was a credible body of evidence that pointed towards Hertel (and away from the appellant) as the person responsible for killing Ms. Bonn.

[14] Having acknowledged the legitimacy of the appellant's "alternate suspect" defence, the strength of the Crown's case against him must also be considered. In that regard, while the case for the Crown was not overwhelming, it was potentially quite strong depending on the jury's assessment of certain of the Crown witnesses. (I include Hertel in this category even though he was called by the defence.)

[15] By way of example, five Crown witnesses testified that the appellant knew Ms. Bonn. Some gave evidence from which it could be inferred that she and the appellant were involved in a relationship at the time of her death. Other evidence suggested that they may have been planning to live together. That body of evidence stood in stark contrast to the appellant's assertion that he did not know Ms. Bonn. A finding against him on that issue would have been highly damaging to his position.

[16] Several other examples come to mind. De Paepe and Hertel testified and denied having anything to do with Ms. Bonn's death. De Paepe insisted that he had never been at the appellant's apartment on Mausser Avenue. If believed, their evidence effectively nullified the appellant's "alternate suspect" defence.

[17] Another example comes from the evidence of Police Constable Vicki MacDonald. She spoke to the appellant at his apartment on the morning of Thursday, May 25, in the course of investigating an incident, reported earlier that morning, of a man wheeling a recycling bin to and from the direction of Mausser [page247] Park. According to the officer, when she asked the appellant whether he had been walking with the bin that morning, he replied, "no, I just got up". The appellant denied saying those words. He claimed, instead, that he replied, "no, I just got back". It was his evidence that he had returned to his apartment that morning to retrieve some medication. That of course, coincided with his position that he had not slept at his apartment on either Tuesday night or Wednesday night of that week, the time frame within which Ms. Bonn was killed. The officer's evidence of the conversation belied the appellant's version. If accepted, it severely weakened his defence.

[18] A final example comes from the forensic evidence located at the appellant's apartment and on the body of Ms. Bonn. Of particular note, the appellant's DNA was located on a pink, white and grey ladies' shirt that almost certainly belonged to Ms. Bonn. The shirt was found on the kitchen table of the appellant's apartment. A further "partial incomplete" DNA profile was obtained from a saliva deposit located on Ms. Bonn's left nipple. Although consistent with the appellant's profile, a determinative match could not be made due to the minimal amount of DNA obtainable from the sample. Another item located at the scene was a pair of men's underwear. On examination, they revealed blood from Ms. Bonn and DNA from the appellant.

[19] Other items that tended to link the appellant to the murder were found in the apartment and in the recycling bin belonging to the apartment, as well as on Ms. Bonn's body. The Crown of course relied on these items to identify the appellant as Ms. Bonn's killer. Although not determinative, they were problematic for the appellant, especially since there was virtually no forensic evidence linking De Paepe or Hertel to the scene.

[20] The examples that I have used to demonstrate the strength of the Crown's case are not exhaustive. They simply illustrate that the case against the appellant, though not overwhelming, was potentially quite strong depending on the jury's assessment of the forensic evidence and the evidence of certain of the Crown witnesses and Hertel.

[21] In sum, this was a case with a lot of twists and turns. Many of the critical witnesses for both sides came from difficult and troubled backgrounds and their credibility and reliability were very much matters for the jury. The case was uniquely suited for a jury but given the conflicting evidence as to the identity of Ms. Bonn's killer, there was little room for error.

[22] It is against that backdrop that I turn to the grounds of appeal. [page248]

Analysis

Issue one -- Bad character evidence

(i) Background facts and positions of the parties

[23] As indicated, the appellant defended the charge on the basis that he did not kill Ms. Bonn; rather, she was murdered by Jeffrey Hertel. That defence, commonly referred to as the "alternate suspect" defence, was certainly available to the appellant on the evidence that implicated Hertel as Ms. Bonn's killer. That being so, in order to convict the appellant, the jury initially had to be satisfied beyond a reasonable doubt that Hertel did not kill Ms. Bonn. If they believed or had a reasonable doubt that he did, then the appellant was entitled to be acquitted.

[24] In reality, as Mr. Campbell for the appellant submitted, the outcome of the case hinged on the jury's determination of that issue. If the jury was satisfied beyond a reasonable doubt that Hertel was not the killer, then viewed realistically, the appellant's fate was sealed.

[25] Both Hertel and the appellant had serious criminal records for offences involving drugs, dishonesty and violence. Hertel's record contained 59 convictions from 1975 to 2002. Most of his convictions involved crimes of dishonesty, while others related to violence and drugs. The appellant's criminal record consisted of 45 convictions from 1983 to 2002. Like Hertel, most of his convictions involved crimes of dishonesty while others related to violence and alcohol.

[26] On the subject of violence, apart from their criminal convictions for violence, both sides had witnesses who were prepared to testify to other acts and threats of violence committed by Hertel and the appellant against third parties. Unquestionably, both Hertel and the appellant were predisposed to violence and had the appellant chosen to do so, he could have put Hertel's general disposition and propensity for violence in issue before the jury. That, however, is not the strategy he wished to pursue. He knew that if he did, it would likely open the door for the Crown to lead evidence of his general disposition and propensity for violence and that is something he wanted to avoid.

[27] At the same time, it was essential to his defence that he be able to lead evidence of Hertel's prior threats and acts of violence towards Ms. Bonn. There was a considerable body of such evidence and it formed one of the mainstays of his "alternate suspect" defence. Specifically, it showed that Hertel had a motive to kill Ms. Bonn and motive was a factor that the jury could consider in determining the identity of her killer. In that regard, as [page249] between the appellant and Hertel, the appellant came out ahead. The Crown had no similar evidence to offer in relation to the appellant.

[28] That is the backdrop against which defence counsel, Ms. Tuck-Jackson, sought a ruling from the trial judge that would have permitted her to lead evidence from Hertel of his threats and acts of violence towards Ms. Bonn but no one else. In other words, even though Hertel had assaulted and threatened other people and even though the details of those threats and assaults could be brought out in cross-examination, defence counsel undertook that she would refrain from doing so. (As indicated, Hertel was called as a defence witness but it was agreed that he was hostile and that the defence could cross- examine him at large.)

[29] In approaching the matter that way, defence counsel made it clear that it was not her intention to show that Mr. Hertel was "the kind of person" likely to kill Ms. Bonn but that he was "in fact" the person who did so. The essence of her submissions are captured in the following passages from her argument:

So assuming then that Mr. Hertel qualifies in law as an alternate suspect, I am seeking to tender evidence of Mr. Hertel's acts of violence and threats of violence towards only, and I want to underline triplicate, only, Pamela Bonn.

As your Honour heard in the pre-trial applications, there is other evidence out there that Mr. Hertel has engaged in acts of violence, even similar to the manner in which Ms. Bonn met her untimely death. And that's in relation to third parties. Your Honour may recall a gentleman by the name of Leo Gagliano in relation to which I filed an occurrence report. I'm not seeking to tender any of that evidence. I am only seeking to tender evidence in relation to acts of violence and threats of violence relating solely to Pamela Bonn.

THE COURT: I hate to interrupt. Just so I do not lose this thought. Does that mean that you would not be questioning Mr. Hertel about those other alleged acts?

MS. TUCK-JACKSON: Most definitely, I would not.

THE COURT: And what does that mean if you seek to question him about his criminal record?

MS. TUCK-JACKSON: I . . . and I'll address it with Your Honour now, as a matter of fact. If I wasn't alleging that Mr. Hertel was an alternate suspect, as Your Honour well knows, I would be entitled to cross-examine Mr. Hertel on the underlying acts of all of his convictions. And as Your Honour knows, he does have convictions for violence.

I would be undertaking to my friend and to the court that I would not be questioning him about any of the convictions, the underlying acts for convictions of violence. [page250]

In my respectful submission, I would still be entitled to cross-examine him about the underlying acts of his convictions for dishonesty because that goes purely to the . . . the issue of credibility.

Now my respectful submission, if I tender evidence of his acts of violence and threats of . . . of violence towards Ms. Bonn, in the context of this case, that does not amount to evidence of propensity.

And it doesn't amount to evidence of propensity because I am not tendering it for the purpose of showing that he is the kind of person who would kill Pamela Bonn. I am tendering it for the purpose of showing that he was the person who killed Pamela Bonn and, of course, the flip side of that is that I am tendering it for the purpose of raising a doubt that Mr. Vanezis killed Pamela Bonn.

And that's a very important distinction, in my respectful submission, because clearly if I was tendering it to show that he was the kind of person to kill Pamela Bonn, then clearly that would be propensity evidence and the decisions of our Court of Appeal in McMillan [(1975), 1975 43 (ON CA), 23 C.C.C. (2d) 160 (Ont. C.A.)] and Scopelliti [(1981), 63 C.C.C. (2d) 48 (Ont. C.A.)] tell us that that creates the potential for an unbalanced impression with the jury.

And I entirely agree that if Your Honour concludes that what I'm trying to tender here is propensity evidence, then indeed I have opened up my client's character at large and the Crown would be entitled to tender evidence in reply and . . . and I don't mean in reply in a legal sense of the word, but . . . but in my respectful submission, this isn't propensity evidence.

Clearly, the identity of the killer in this case is a material issue and the evidence that I'm seeking to tender is probative of that material issue.

(Emphasis added throughout)

[30] In support of her position, defence counsel referred the trial judge to a number of authorities that drew a distinction between bad character evidence that was relevant to a material issue in the case and bad character evidence that merely showed a general propensity to engage in certain types of conduct. In particular, she focused on the distinction between bad character evidence that showed a specific propensity to do a particular criminal act and bad character evidence that showed a general propensity to act in a certain way. (See R. v. G. (S.G.), 1997 311 (SCC), [1997] 2 S.C.R. 716, [1997] S.C.J. No. 70, 116 C.C.C. (3d) 193, per Cory J., at p. 747 S.C.R., p. 217 C.C.C.; R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609, [1999] O.J. No. 688, 132 C.C.C. (3d) 97 (C.A.), at pp. 613-19 O.R., pp. 103-08 C.C.C.; R. v. Misir, 2001 BCCA 202, [2001] B.C.J. No. 499, 153 C.C.C. (3d) 70 (C.A.), at pp. 72-76 C.C.C.; R. v. MacDonald, 1974 1641 (ON CA), [1974] O.J. No. 721, 20 C.C.C. (2d) 144 (C.A.), at pp. 150-53 C.C.C.). Counsel also referred the trial judge to the case of R. v. J.C., [2002] O.J. No. 5263, [2002] O.T.C. 1056 (S.C.J.) in which Archibald J., in circumstances similar to those in the case at [page251] hand, ruled that the defence could lead evidence of an alternate suspect's motive to kill the deceased, consisting of prior acts of violence towards the deceased, without putting the defendant's general disposition for violence into play.

[31] Crown counsel (not Ms. Klukach) balked at the approach suggested by the defence. In his view, while it was fine for defence counsel to undertake not to cross-examine Hertel on the details of his violent conduct towards third parties, he (Crown counsel) wanted to be able to do so. Why? Because the appellant, as part of his "alternate suspect" defence, was going to rely on Hertel's "confessions" to other people that he (Hertel) had killed Ms. Bonn. That being so, Crown counsel wanted to be able to explore Hertel's entire past, including the details of his violent conduct towards third parties, to show that he was a disreputable character and that the jury should give no credence to his confessions. On that approach, Hertel's general propensity for violence would be exposed to the jury. It followed, according to Crown counsel, that the appellant's general propensity for violence should also be before the jury; otherwise, the jury would be left with a lopsided view of the case. In other words, to level the playing field, the Crown should be permitted to lead evidence of the appellant's violent conduct towards third parties.

[32] In a similar vein, i.e., that the jury would inevitably be exposed to Hertel's general propensity for violence, Crown counsel referred to one of Hertel's "confessions", allegedly made to his ex-girlfriend Gayle Snow. According to Ms. Snow, in September 1996, Hertel threatened to kill her just like he had killed his last "old lady" Pam. Specifically, he told her that, "he was going to rape and strangle [her] . . . and kill [her] and put [her] in a bin". According to Crown counsel, Hertel's threat to Ms. Snow opened the door to his general propensity for violence and entitled the Crown to respond in kind. Moreover, Crown counsel made it known that he intended to challenge Ms. Snow's credibility on the basis that she disliked Hertel because he had regularly beaten and threatened her during their relationship. Hence, the jury would be exposed to even more of Hertel's general propensity for violence.

(ii) Trial judge's ruling

[33] In the end, the trial judge sided with the Crown. In his view, the threats and acts of violence attributed to Hertel constituted evidence of propensity no matter how defence counsel might choose to present them. Hence, fairness dictated that the Crown should be able to respond in kind: [page252]

In my view, defence counsel is optimistic in proposing to avoid propensity evidence. Mr. Hertel's record alone demonstrates a criminal pattern of violence. Ms. Snow's evidence as to Mr. Hertel's confession is tied into his violence towards her. No matter how skilful counsel will be in the examination of the witnesses, the jury will be presented with a picture of Mr. Hertel which involves considerable violence. Can my instructions to them overcome any obstacles created by such evidence or impressions? I have great difficulty in expecting such instructions to be successful on this issue.

The proposed evidence is evidence of propensity, no matter how limited the questioning may be. If this evidence will be tendered, Crown counsel may offer character evidence with respect to Mr. Vanezis.

[34] That ruling effectively opened the door to propensity evidence being led in respect of both Hertel and the appellant. As against the appellant, Crown counsel tendered a highly emotive body of bad character evidence from his former common law spouse, Heather Moorehead. Among other things, Ms. Moorehead testified about the appellant's drug use, his unprovoked attack on an elderly woman with a heart condition and his acts of violence and threats of violence towards her (including threats to kill her), sometimes carried out in the presence of their distraught infant children. As well, Crown counsel was permitted to question the appellant on the facts underlying his prior convictions for violence.

[35] In his charge to the jury, the trial judge reviewed the propensity evidence as it related to Hertel and the appellant and he explained its limited use. In particular, he cautioned the jury that the evidence had been permitted "for the sole purpose of allowing [the jurors] as the judges of the facts, to determine who is more likely to have killed Ms. Bonn, Mr. Vanezis or Mr. Hertel". He further told the jury that they could not use the propensity evidence "as evidence of Mr. Vanezis's guilt of the offence charged" or "as evidence that Mr. Vanezis is a bad person", nor could they use it to "punish him for past acts of discreditable conduct by finding him guilty of this offence".

[36] The appellant takes no issue with the trial judge's "propensity" instructions; rather, he submits that the trial judge should not have permitted the Crown to introduce propensity evidence against him.

(iii) Analysis

[37] The issue facing the trial judge was by no means a simple one. Not unlike the evidence in the case, it had a number of twists and turns. The trial judge was alive to this. As he observed in his ruling: "there is considerable merit in the positions presented by [page253] both the defence and the Crown". In the end, however, he accepted the Crown's position. With respect, I believe that he erred in doing so.

[38] The appellant's sole defence was that he did not kill Ms. Bonn; rather, it was Hertel who killed her. The two strongest features of that defence were Hertel's motive to kill Ms. Bonn and his confessions to others that he had in fact done so. If the defence had any chance of success, it was essential that those two items of evidence be presented to the jury. That was not a tactical decision; it was the only one open to the defence in the circumstances.

[39] As regards the two items of evidence, the issue of Hertel's general propensity for violence arose only in the context of his confession to Ms. Snow; it did not arise on the evidence pertinent to his motive to kill Ms. Bonn. As defence counsel quite properly pointed out, Hertel's previous threats and act of violence towards Ms. Bonn were not being led to show that he was the kind of person likely to have killed her but that he was in fact the person who killed her.

[40] As for Hertel's criminal record and his prior convictions for violence against third parties, defence counsel's undertaking that she would not question him on the details of those convictions was significant. It meant that in instructing the jury on the use they could make of Hertel's prior convictions for violence, the trial judge was free to treat Hertel as though he were an accused who had not put his character in issue. In other words, he could have instructed the jury that they were only entitled to use Hertel's prior convictions for violence against third parties to assess his credibility and for no other purpose. That instruction would have prevented the jury from using them as evidence of his general propensity for violence.

[41] Thus, to recapitulate, apart from any inference that might arise from Hertel's confession to Ms. Snow, his general propensity for violence formed no part of the appellant's case. As for the confession, it involved a single isolated threat of violence towards Ms. Snow. In my respectful view, standing alone, it did not justify opening the door to evidence of the appellant's general propensity for violence. To the extent that it posed a concern, the trial judge could have told the jury that Hertel's threat to Ms. Snow was something that they could consider in assessing her credibility (i.e., she disliked him and therefore had a motive to harm him), and for no other reason.

[42] All of this is to say that on the approach proposed by the defence, Hertel's general propensity for violence was essentially a non-issue; it only became an issue because of the approach proposed by the Crown. [page254]

[43] For reasons already mentioned, it was the Crown who wished to expose the jury to Hertel's prior acts of violence towards third parties. In that regard, while it is not for me to say, it is difficult to understand how Hertel's violence towards third parties was likely to assist the jury in deciding whether his confessions were true or not. To the extent that Hertel's credibility mattered, the Crown was of course at liberty to cross-examine him in detail on all of his prior convictions for dishonesty. In that regard, there was no shortage of ammunition. Hertel had no less than 37 such convictions. In the end, Crown counsel did not seek to discredit Hertel. Instead, he invited the jury to accept, as truthful, Hertel's denial that he had made the confessions attributed to him.

[44] Be that as it may, it hardly seems fair that the defence should be called to account for a strategy pursued by the Crown that placed Hertel's general propensity for violence squarely before the jury when the defence sought to keep that evidence away from the jury. By any measure, the effect of the Crown's strategy was insidious and unfair to the appellant. It enabled the Crown to lead evidence of Hertel's general propensity for violence and then cry foul because the jury did not have comparable evidence in respect of the appellant.

[45] As for Hertel's alleged confession to Ms. Snow, apart from the threat to her contained within the confession itself, I can well understand why Crown counsel would want to expose other threats or acts of violence towards her by Hertel. Arguably, such conduct would provide her with a motive to give false evidence against him. Accepting that, as I have already pointed out, the trial judge could have told the jury that Hertel's prior acts of violence towards her could only be used to assess her credibility and for no other reason. Indeed, although somewhat unorthodox, he could have gone further and told the jury that they were not to use the evidence of Hertel's violence towards third parties to infer that he was the sort of person likely to have murdered Ms. Bonn. Unorthodox or not, defence counsel invited the trial judge to give just such a limiting instruction to the jury.

[46] For these reasons, I am respectfully of the view that the trial judge erred in permitting the Crown to lead evidence of the appellant's propensity for violence towards third parties. At very least, he should have given defence counsel a chance to pursue the strategy that she proposed, i.e., one that would have steered clear of Hertel's general propensity for violence. If this proved impossible, the trial judge could have revisited the ruling. [page255]

[47] The impugned ruling resulted in the admission of a significant body of bad character evidence that portrayed the appellant as a man of violence. It was highly prejudicial and likely to have been used by the jury as a basis for rejecting his "alternate suspect" defence. As well, it resulted in detailed instructions on propensity evidence and the use the jury could make of it. Those instructions were unnecessary and they may well have deflected the jury's attention away from the task at hand.

[48] In the circumstances, Ms. Klukach for the Crown fairly concedes that the curative proviso in s. 686(1)(b)(iii) of the Code cannot be applied to sustain the conviction. I agree. It follows, in my view, that the appeal must be allowed and the conviction set aside.

Issue two -- The impermissible opinion evidence

[49] Detective Sergeant Tout was the officer in charge of the case. He was called as a Crown witness. In response to questions put to him by the Crown, he testified that with the aid of state-of-the-art computer software called "Powercase", he performed an audit on the case in 2002 in which he focused on five possible suspects: i.e., the appellant, Hertel, De Paepe and two others. His purpose in doing so was to determine, with the aid of "Powercase", whether any of the five suspects could be excluded as Ms. Bonn's possible killer. He then proceeded to explain, in some detail, how he had managed to exclude all of the suspects except the appellant as the murderer. At that point, defence counsel objected to the line of questioning and Crown counsel moved on to a different area.

[50] Faced with that evidence, defence counsel asked the trial judge to tell the jury to ignore it. In her view, it was impermissible opinion evidence and it should not have been led by the Crown. Crown counsel disagreed but suggested that if the trial judge was concerned, he should simply remind the jury that it was their opinion, not Detective Tout's that mattered.

[51] The trial judge opted for the Crown's suggestion. In his charge to the jury, under the heading "Presumption of Innocence", he admonished the jury as follows:

The fact that Mr. Vanezis was arrested and charged with an offence in 1995, or that Detective Sergeant Tout has caused an investigation and pursued this prosecution, is in no way an indication of guilt.

[52] The trial judge then reminded the jury that the appellant was presumed to be innocent, that there was no burden on him to prove anything and that the onus rested with the Crown throughout to prove his guilt beyond a reasonable doubt. [page256]

[53] On appeal, the appellant renews his submission that Detective Sergeant Tout's evidence concerning the five suspects and his reasons for excluding all of them, except the appellant, was improper opinion evidence. I agree. The defence made no attack on the police investigation. Accordingly, there was no basis for the kind of evidence given by Detective Sergeant Tout. In my view, the impugned evidence was inadmissible for two reasons: first, it was irrelevant; second, it constituted impermissible opinion evidence. The Crown should not have led it and the jury should not have heard it.

[54] In the circumstances, I am not persuaded that the trial judge's "curative" instruction was adequate. In my respectful view, he should have told the jury to ignore Detective Sergeant Tout's evidence, as defence counsel had requested.

[55] Be that as it may, had this error stood alone, I would have applied the curative proviso and upheld the conviction. The Detective Sergeant's belief that the Crown was prosecuting the right man would have come as no surprise to the jury and I doubt that this would have influenced the jury in its decision- making process. Those who believe otherwise have less faith in the jury system than I.

Issue three -- The Vetrovec warning

[56] The appellant submits that the trial judge erred in failing to warn the jury to proceed with caution before acting on the evidence of De Paepe and Hertel, without more, to convict him. (See R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811, [1982] S.C.J. No. 40, 67 C.C.C. (2d) 1.) In support of his submission, he stresses the importance of their evidence to the Crown's case and the several factors that served to undermine their credibility, including their lengthy criminal records, their unsavoury lifestyles, their motive to save themselves at his expense and the internal and external inconsistencies in their testimony.

[57] The appellant's submission has some force. Ultimately, however, I would not give effect to it. By that, I do not mean to suggest that it would have been improper had the trial judge given a warning along the lines requested; he could have done so. In my view, however, it was not essential.

[58] The trial judge provided the jury with thorough and detailed instructions on the factors they should consider in assessing the worth of De Paepe and Hertel's evidence. In particular, he alerted the jury to their extensive criminal records and the use the jury could make of them in assessing credibility; he instructed the jury on the impeachment value of their prior inconsistent statements; and, he told the jury, albeit in [page257] general terms, to consider whether a witness had "an interest in the outcome of the case, or any reason to give evidence that is more favourable to one side than to the other". Here, the incentive for Hertel and De Paepe to falsely implicate the appellant was obvious and the jury would have intuitively understood the need to assess their evidence with care before acting on it, without more, to reject the appellant's "alternate suspect" defence.

[59] Moreover, had the trial judge given a Vetrovec warning, he likely would have alerted the jury to various items of evidence that tended to confirm De Paepe and Hertel's evidence, including the absence of noticeable facial hair on the man pushing the recycling bin (Hertel had a very long beard at the time) and the virtual absence of any evidence connecting De Paepe or Hertel to the crime scene in the appellant's apartment. This instruction would not have enured to the appellant's benefit.

[60] I am also influenced in my conclusion by the fact that Ms. Tuck-Jackson, who defended the appellant with great skill and ability, did not object to the trial judge's charge even though it did not contain the Vetrovec warning that she had requested. To me, that suggests that she was satisfied with the instructions the jury received.

[61] Accordingly, I would reject this ground of appeal.

Remedy

[62] The appellant seeks an acquittal as his remedy of choice. Alternatively, he requests that a new trial be ordered.

[63] In support of his bid for an acquittal, he does not suggest that ordering a new trial would amount to an abuse of process. Rather, he points out that this was his third trial, that he has served more than ten years in custody and that the case against him is "shaky" at best.

[64] With respect, I do not believe that a case has been made out for acquittal. In my view, the proper result is to order a new trial and leave it to the Crown to decide whether to proceed.

[65] In so concluding, I have considered the nature and seriousness of the charge and the overall strength of the Crown's case. While the Crown's case is not overwhelming, it is potentially quite strong depending on the jury's assessment of certain key witnesses. Without seeing those witnesses, I am not in a position to assess the worth of their evidence.

[66] As for this being the third trial, I note that this court overturned the appellant's conviction after his second trial because of fresh evidence that seemed significant at the time, but now appears to be all but worthless. (See R. v. Vanezis, 2002 11051 (ON CA), [2002] O.J. No. 994, 156 O.A.C. 143 (C.A.).) [page258]

[67] In the result, I would allow the appeal, set aside the conviction and order a new trial.

Appeal allowed.