Her Majesty the Queen v. Rybak, 2008 ONCA 354

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

90 O.R. (3d) 81

Court of Appeal for Ontario,

Cronk, Juriansz and Watt JJ.A.

May 5, 2008

Charter of Rights and Freedoms -- Interpreter -- Accused speaking English but not fluent -- Accused requesting interpreter's assistance only if he indicated that he had difficulty -- Interpreter assigned to accused for his murder trial not accredited despite coordinator of interpreters assuring judge that interpreter was accredited -- Accused not objecting to quality of interpretation during trial and not indicating that he did not understand anything -- Interpreter's lack of accreditation not equivalent to lack of competence -- Accused seeking to adduce fresh evidence about general issues regarding quality of interpreters -- No link established between fresh evidence gathered in another case about interpreters and whether accused's s. 14 right under the Charter was violated -- Accused adducing no evidence on how often he sought assistance of interpreter or whether he failed to understand her -- Accused not meeting burden to show that he was denied effective assistance of interpreter -- Canadian Charter of Rights and Freedoms, s. 14.

Criminal law -- Evidence -- Identification evidence -- Charge to jury -- Trial judge adequately instructing jury on frailties of identification evidence in general and in-dock identification in particular and pointing to specific frailties in witness' identification of accused -- Charge adequate -- Existence of one dissimilarity between description given by witness and accused's appearance not requiring trial judge to instruct jury that witness' evidence was no evidence of identification.

Criminal law -- Evidence -- Post-offence conduct -- Trial judge not giving jury traditional instruction about post- offence conduct and instead leaving evidence of post-offence conduct to jury as circumstantial evidence that tended to link accused to killing -- Accused not objecting to charge -- Although trial judge could have given the standard instruction on post-offence conduct accused not being prejudiced by its absence.

Criminal law -- Murder -- Mens rea -- Trial judge referring in part of his instructions on mental element for murder under s. 229(a)(ii) to foresight of danger of death following from bodily harm and not to foresight of likelihood of death ensuing from bodily harm -- "Danger" and "likelihood" reflecting risks of different magnitude -- Trial judge correctly instructing jury on mental element required to establish murder under s. 229(a)(ii) in other parts of charge before and after impugned instruction -- Accused's appeal dismissed -- Criminal Code, R.S.C. 1985, c. C-46, s. 229(a)(ii).

Criminal law -- Trial -- Witnesses -- Trial judge not erring in refusing to direct Crown to call witness whom defence counsel wished to cross-examine -- Crown not having oblique motive in deciding not to call witness -- Crown not required to call every witness who has relevant testimony when evidence not essential to unfolding case or proof of Crown's case -- Trial judge did not err in refusing to call witness himself for [page82 ]accused to cross-examine -- Accused not establishing high threshold mandating trial judge to exercise discretion to call witnesses.

The accused was convicted of the second degree murder of his girlfriend. The Crown's case was circumstantial, including evidence of motive, opportunity and post-offence conduct. The accused was born in Poland and had been in Canada for five or six years at the time of the trial. He spoke English, but was not fluent. According to his lawyer, he had difficulty with certain words or when someone spoke too quickly. He was provided with a Polish-language interpreter at trial, and he was told by the trial judge to speak up if he was having trouble understanding anything. The accused indicated that he and the interpreter had an "exceptionally good" arrangement and asked that she remain for the remainder of the trial. At no time during the trial did the accused complain about the competence of the interpreter. The trial proceeded without complaint from the accused. On appeal from his conviction, he argued that his right to the assistance of an interpreter under s. 14 of the Canadian Charter of Rights and Freedoms was violated. He introduced fresh evidence that his interpreter at trial was not accredited as well as evidence gathered in another trial about general complaints about the quality of interpreters in unrelated proceedings. He also argued that an expert provided evidence about fingerprints that was outside of his area of expertise and that the expert's demonstration should not have been permitted. The accused argued that the Crown should have been required to make a witness who testified at the preliminary hearing available for the accused to cross- examine or, alternatively, that the trial judge should have called the witness. He complained about the adequacy of the instructions on the identification evidence, the mens rea for murder and the absence of an instruction on post-offence conduct.

Held, the appeal should be dismissed.

The right to interpreter assistance under s. 14 of the Charter is neither automatic nor absolute. Where an accused asserts an infringement of s. 14, the onus is on him or her to demonstrate, on a balance of probabilities, not only that he or she needed interpreter assistance, and that the assistance received fell below the constitutionally guaranteed standard, but that this shortfall occurred as the case was being advanced. Competence and accreditation are not co-extensive. In the absence of universally acceptable standards for assessing interpreter competence, neither presence nor absence of accreditation can be considered dispositive of the issue of competence. The trial record in this case was utterly barren of any suggestion of incompetence or other interpretation deficiency. To the contrary, when the interpreter issue was first bruited during pre-trial motions, the accused supported the assignment of the interpreter in question, and sought assurances from the trial judge that she would remain throughout his trial. What was missing from the fresh evidence introduced by the accused was a nexus between the systemic and accreditation flaws identified in the materials filed and the interpreter assistance provided in this case. The accused failed to establish that his rights under s. 14 of the Charter were infringed.

A witness testified at trial that he saw a man leave the deceased's apartment building with a German shepherd on a leash around 1:00 a.m., and that he had seen this man, whom he identified at trial as the accused, on several earlier occasions, with the deceased and the same dog. The witness was never shown a photographic line-up. The trial judge instructed the jury on the frailties of eyewitness identification evidence, and made specific reference to the in-dock nature of the identification. The defence made no objection to the charge at trial, nor did they seek to exclude the evidence on the basis that its prejudicial effect outweighed its probative value. The instructions were adequate. The fact that the witness [page83 ]described the man as having shoulder-length hair while the accused's hair was short did not oblige the trial judge to instruct the jury that the witness' evidence was no evidence of identification. The trial judge did not err in instructing the jury that if they found that the dog the witness saw belonged to the deceased, they could consider that as evidence on the issue of whether the witness saw the accused.

In his instructions to the jury on the mens rea of murder under s. 229(a)(ii) of the Criminal Code, the trial judge referred to an intention "to cause bodily harm of such a grievous and serious nature that the defendant knew it was likely to cause death, coupled with recklessness as to its consequences. In this context, recklessness involves awareness of the danger of the consequences from prohibited conduct, but a persistence nonetheless with knowledge of the risk". He did not specifically state that an accused must foresee a likelihood that death will follow from the bodily harm. The terms "danger" and "likelihood" reflect risks of different magnitudes. However, the error was sandwiched among several correct instructions on the mens rea for murder as per s. 229(a)(ii). In addition, the deceased died from manual strangulation. Given the evidence regarding the nature and extent of force required to kill in that manner, the instructions under s. 229(a)(ii) were of lesser significance.

The jury heard evidence that the accused left the deceased's apartment in her car, drove to a nearby ATM and made three withdrawals from her bank account, and then travelled at an excessive speed, was involved in a single-vehicle accident, gave a false name to the police and told them that someone else had been driving the car. The trial judge did not give the jury the usual post-offence conduct instruction about that evidence, and instead left the evidence as circumstantial evidence for the jury to consider on the issue of whether or not the accused was the perpetrator. Counsel were advised during the pre-charge conference that the judge was not going to give the instruction. The accused objected neither at that time nor after the charge to the jury was given. The accused was not prejudiced by the omission of the traditional post-offence conduct instruction.

The trial judge did not err in his instructions on the accused's intoxication. The accused did not raise the defence of intoxication, and instead claimed that the deceased was murdered by someone else. However, the evidence adduced at trial lent an air of reality to the issue of intoxication which engaged the trial judge's obligation to submit the issue to the jury for its determination. The trial judge committed no error in describing intoxication as a factor for the jury to consider, along with the rest of the evidence, in deciding whether the prosecution had proven that the accused had the intent for murder.

The trial judge did not err in refusing to direct the Crown to call a particular witness whom defence counsel wished to cross-examine. The Crown called the witness at the preliminary hearing. She gave evidence-in-chief that contradicted her prior statement to police. The Crown successfully applied during the preliminary hearing to cross-examine the witness on her prior statement but chose not to call her at trial. The Crown is not required to call all witnesses who have relevant testimony. The Crown explained why it was not calling the witness, and had no oblique motive in making that decision. The trial judge did not err in refusing to call the witness himself to make the witness available for cross-examination by the accused. A judge should rarely interfere with a party's right to choose which witnesses to call. The accused did not establish that this was one of the rare cases in which the judge had an obligation to call the witness himself. [page84 ]

The trial judge did not err in permitting a witness who was qualified as an expert witness in iodine silver plate processing for fingerprints to give an opinion on and demonstrate the "directionality" of a fingerprint. The accused did not object that the proposed evidence was outside of the expert's area of expertise and the demonstration was uncomplicated and not confusing.

APPEAL from a conviction for second degree murder entered by R.G. Thomas J. of the Superior Court of Justice on November 1, 2004, sitting with a jury.

The judgment of the court was delivered by

Cases referred to

Chartier v. Quebec (Attorney General), 1979 17 (SCC), [1979] 2 S.C.R. 474, [1979] S.C.J. No. 56, 104 D.L.R. (3d) 321, 27 N.R. 1, 48 C.C.C. (2d) 34, 9 C.R. (3d) 97, [1979] 2 A.C.W.S. 109; R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723, 190 O.A.C. 1, 189 C.C.C. (3d) 199, 24 C.R. (6th) 152 (C.A.) [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 502, 195 C.C.C. (3d) vi]; R. v. Latoski (2005), 2005 30697 (ON CA), 77 O.R. (3d) 505, [2005] O.J. No. 3565, 202 O.A.C. 102, 200 C.C.C. (3d) 361, 66 W.C.B. (2d) 423 (C.A.); R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951, [1994] S.C.J. No. 16, 117 D.L.R. (4th) 7, 170 N.R. 81, 133 N.S.R. (2d) 81, 92 C.C.C. (3d) 218, 32 C.R. (4th) 34, 23 C.R.R. (2d) 32, 24 W.C.B. (2d) 308, consd

Other cases referred to

Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, 11 D.L.R. (4th) 641, 55 N.R. 241, [1984] 6 W.W.R. 577, J.E. 84-770, 33 Alta. L.R. (2d) 193, 55 A.R. 291, 27 B.L.R. 297, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1, 41 C.R. (3d) 97, 9 C.R.R. 355, 84 D.TC. 6467; Martins v. Texas, 2001 Tex. App. LEXIS 5096, 52 S.W.3d 459 (2001); Mohammadi c. R., [2006] Q.J. No. 6809, 2006 QCCA 930, J.E. 2006-1463, EYB 2006-107565, 71 W.C.B. (2d) 800; R. v. Boucher, 2000 3270 (ON CA), [2000] O.J. No. 2373, 134 O.A.C. 82, 146 C.C.C. (3d) 52, 46 W.C.B. (2d) 460 (C.A.); R. v. Cinous, [2002] 2 S.C.R. 3, [2002] S.C.J. No. 28, 2002 SCC 29, 210 D.L.R. (4th) 64, 285 N.R. 1, J.E. 2002-576, 162 C.C.C. (3d) 129, 49 C.R. (5th) 209, 52 W.C.B. (2d) 368; R. v. Cook, 1997 392 (SCC), [1997] 1 S.C.R. 1113, [1997] S.C.J. No. 22, 146 D.L.R. (4th) 437, 210 N.R. 197, J.E. 97-921, 188 N.B.R. (2d) 161, 114 C.C.C. (3d) 481, 7 C.R. (5th) 51, 34 W.C.B. (2d) 285; R. v. Demeter, 1977 25 (SCC), [1978] 1 S.C.R. 538, [1977] S.C.J. No. 60, 75 D.L.R. (3d) 251, 16 N.R. 46, 34 C.C.C. (2d) 137, 38 C.R.N.S. 317, affg (1975), 1975 685 (ON CA), 10 O.R. (2d) 321, [1975] O.J. No. 2648, 25 C.C.C. (2d) 417 (C.A.); R. v. Figueroa, [2008] O.J. No. 517, 2008 ONCA 106, 233 O.A.C. 176; R. v. Gedi, [1997] E.W.J. No. 2959 (C.A. (Crim. Div.)); R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, 110 N.R. 1, [1990] 5 W.W.R. 1, J.E. 90-990, 47 B.C.L.R. (2d) 1, 57 C.C.C. (3d) 1, 77 C.R. (3d) 145, 49 C.R.R. 114, 10 W.C.B. (2d) 435; R. v. Hibbert, [2002] 2 S.C.R. 445, [2002] S.C.J. No. 40, 2002 SCC 39, 211 D.L.R. (4th) 223, 287 N.R. 111, J.E. 2002-801, 165 B.C.A.C. 161, 163 C.C.C. (3d) 129, 50 C.R. (5th) 209, 53 W.C.B. (2d) 69; R. v. Holmes (2002), 2002 45114 (ON CA), 62 O.R. (3d) 146, [2002] O.J. No. 4178, 165 O.A.C. 307, 169 C.C.C. (3d) 344, 7 C.R. (6th) 287, 55 W.C.B. (2d) 513 (C.A.); R. v. Howard, 1983 3507 (ON CA), [1983] O.J. No. 13, 3 C.C.C. (3d) 399, 9 W.C.B. 100 (C.A.); R. v. Lessey (2006), 2006 11847 (ON CA), 80 O.R. (3d) 186, [2006] O.J. No. 1476, 209 O.A.C. 6, 208 C.C.C. (3d) 186, 69 W.C.B. (2d) 196 (C.A.); R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, 108 D.L.R. (4th) 47, 159 N.R. 81, J.E. 83-1778, 66 O.A.C. 161, 85 C.C.C. (3d) 193, 25 C.R. (4th) 1, 21 W.C.B. (2d) 184; R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, [1988] S.C.J. No. 80, 88 N.R. 161, J.E. 88-1374, 30 O.A.C. 81, 44 C.C.C. (3d) 193, 66 C.R. (3d) 1, 5 W.C.B. (2d) 309; R. v. Peavoy (1997), 1997 3028 (ON CA), 34 O.R. (3d) 620, [1997] O.J. No. 2788, 101 O.A.C. 304, 117 C.C.C. (3d) 226, 9 C.R. (5th) 83, 35 W.C.B. (2d) 375 (C.A.); R. v. Portillo, 2003 5709 (ON CA), [2003] O.J. No. 3030, 174 O.A.C. 226, 176 C.C.C. (3d) 467, 17 C.R. (6th) 362, 58 W.C.B. (2d) 561 (C.A.); R. v. Rajalinkham, [2005] O.J. No. 2240, 65 W.C.B. (2d) 426 (C.A.); R. v. Reale, 1974 23 (SCC), [1975] 2 S.C.R. 624, [1974] S.C.J. No. 118, 58 D.L.R. (3d) 560, 5 N.R. 169, 8 N.R. 164, 22 C.C.C. (2d) 571, affg 1973 55 (ON CA), [1973] 3 O.R. 905, [1973] O.J. No. 2111, 13 C.C.C. (2d) 345 (C.A.); R. v. Roy, 2003 4272 (ON CA), [2003] O.J. No. 4252, 180 C.C.C. (3d) 298, 15 C.R. (6th) 282, 112 C.R.R. (2d) 297, 59 W.C.B. (2d) 253 (C.A.); R. v. Sellars, 1980 166 (SCC), [1980] 1 S.C.R. 527, [1980] S.C.J. No. 9, 110 D.L.R. (3d) 629, 32 N.R. 70, J.E. 80-122, 52 C.C.C. (2d) 345, 20 C.R. (3d) 381, 4 W.C.B. 421, affg 1978 2534 (QC CA), [1978] C.A. 469, 44 C.C.C. (2d) 448, 5 C.R. (3d) 47 (Que. C.A.); [page85 ]R. v. Singh, [2007] 3 S.C.R. 405, [2007] S.C.J. No. 48, 2007 SCC 48, 285 D.L.R. (4th) 583, 369 N.R. 1, [2008] 1 W.W.R. 191, J.E. 2007-2037, 73 B.C.L.R. (4th) 1, 225 C.C.C. (3d) 103, 51 C.R. (6th) 199, 249 B.C.A.C. 1; R. v. T. (V.), 1992 88 (SCC), [1992] 1 S.C.R. 749, [1992] S.C.J. No. 29, 134 N.R. 289, [1992] 3 W.W.R. 193, J.E. 92-516, 7 B.C.A.C. 81, 67 B.C.L.R. (2d) 273, 71 C.C.C. (3d) 32, 12 C.R. (4th) 133, 15 W.C.B. (2d) 546; R. v. Tebo, 2003 43106 (ON CA), [2003] O.J. No. 1853, 172 O.A.C. 148, 175 C.C.C. (3d) 116, 13 C.R. (6th) 308, 57 W.C.B. (2d) 588 (C.A.); R. v. Ungvari, [2003] E.W.J. No. 4217, [2003] E.W.C.A. Crim 2345 (C.A. (Crim. Div.)); R. v. Watson (1996), 1996 4008 (ON CA), 30 O.R. (3d) 161, [1996] O.J. No. 2695, 92 O.A.C. 131, 108 C.C.C. (3d) 310, 50 C.R. (4th) 245, 31 W.C.B. (2d) 469 (C.A.); R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51, 43 D.L.R. (4th) 424, 78 N.R. 351, [1987] 6 W.W.R. 97, J.E. 87-995, 17 B.C.L.R. (2d) 1, 36 C.C.C. (3d) 417, 59 C.R. (3d) 108; Reference re R. v. Coffin, 1956 94 (SCC), [1956] S.C.R. 191, [1956] S.C.J. No. 1, 114 C.C.C. 1, 23 C.R. 1; Seneviratne v. R., 1936 396 (UK JCPC), [1936] 3 All E.R. 36 (P.C.); State v. Pham, 879 P.2d 321, 75 Wn. App. 626 (1994)

Statues referred to

Canada Evidence Act, R.S.C. 1985, c. C-5, s. 9(2) [as am.] Canadian Charter of Rights and Freedoms, ss. 7, 14, 24(1), 27 Criminal Code, R.S.C. 1985, c. C-46, ss. 229(a)(ii), 625.1(2) [as am.], 650(1) [as am.], (2) [as am.]

Joseph Wilkinson and Philip Norton, for appellant. Leslie Paine and Daniel Guttman, for respondent.

1WATT J.A.: -- Several motorists driving north on Highway 400 Extension north of Barrie early in the morning of October 29, 2000, noticed an Oldsmobile Aurora in the median between the northbound and southbound lanes. The car was upside down, resting on its roof.

2A few drivers stopped their vehicles and approached the overturned car. They noticed one man staggering around near the Oldsmobile. The man said that his name was Mark. He claimed that another person, John, had been driving the car, but John had disappeared. The man who said that his name was Mark was Janusz Rybak (the appellant).

3Shortly after police arrived at the accident scene, an officer arrested the appellant for public intoxication. The appellant became belligerent and was promptly handcuffed.

4A vehicle registration check revealed that the owner of the upturned car was Eva Papousek (the deceased) who lived in Mississauga. When local police went to Ms. Papousek's address at around 7:30 a.m. on October 29, 2000, they found her body. Someone had strangled her to death. About four hours later, [page86 ]investigators from Peel Regional police arrested the appellant for the murder of the deceased.

5After a seven-week trial, the jury found the appellant guilty of second degree murder. The trial judge imposed the mandatory sentence of imprisonment for life and fixed the parole ineligibility period at the statutory minimum of ten years.

6The appellant appeals his conviction on the principal ground that the state failed to provide him with the interpreter assistance to which he was constitutionally entitled as a person who did not understand the language in which trial proceedings were conducted -- English. He also asserts error in the reception and handling of certain evidence admitted at his trial, and alleges several shortcomings in the trial judge's final instructions to the jury.

I. The Facts

7The prosecution's case against the appellant was circumstantial, including evidence of motive, opportunity and post-offence conduct. The appellant, who did not testify or adduce evidence, denied participation in the death of the deceased and suggested that some third party, not further identified, caused her death.

The relationship between the principals

8During the fall, 2000, the appellant and deceased were living together in an apartment that the deceased rented in Mississauga. She owned a burgundy-coloured Oldsmobile Aurora that she parked in space number 15 of a surface lot adjacent to the apartment building.

9From time to time, the deceased earned money as an exotic dancer. She also tried her hand at selling real estate, but had little success. Unfortunately, the deceased was a frequent and overindulgent drinker whose character changed substantially when she drank to excess.

The unravelling of the relationship

10Ruby Marcus, a former exotic dancer, was a good friend of the deceased. The two women talked frequently, often about relationships with men.

11On the evening of October 27, 2000, the deceased told Ms. Marcus that she (the deceased) was unhappy in her relationship with the appellant, who took more money from their account than he deposited. The deceased had another romantic interest and wanted to rid herself of the appellant. [page87 ]

12In his lengthy videotaped interview by investigating officers, the appellant denied any fissures in his relationship with the deceased. According to him, the couple planned to marry and raise a family.

The evening of October 28, 2000

13The deceased was home during the evening of October 28, 2000. She talked to her ex-husband on the telephone around 10:00 p.m. about their son who was returning to live with his father, contrary to the deceased's wishes. The appellant was there during their conversation.

14Several residents of the apartment building where the appellant and deceased lived reported having heard a barking dog and loud music coming from the couple's apartment at various times during the evening of October 28, 2000, and into the early morning of the following day. Some recalled a man and woman arguing and the [woman] yelling "fuck you", or something like that.

The departure from the apartment

15The appellant admitted to investigators that he and the deceased were together in their apartment during the evening of October 28, 2000. He said he left in the deceased's car after midnight, more likely around 1:00 a.m. on October 29, 2000.

16Another apartment resident, Lee Barnes, said he saw a man with a German Shepherd dog on a leash at around 1:00 a.m. on October 29, 2000. He had seen this man, whom he identified at trial as the appellant, on several earlier occasions, with the deceased and the same dog. A woman also walked the dog. She drove a burgundy-coloured Aurora car and parked it in spot number 15. When Barnes saw the appellant walking the dog, the engine of the Aurora was running and its lights were on.

17Lee Barnes was never shown a photographic line-up. He described the man as six-feet tall with shoulder-length dark hair and a "scruffy" or "rocker" look about him. The description Barnes provided differed from the appellant's appearance, at the very least in the length of his hair.

The cash stop

18On October 28, 2000, the appellant had received $915 in cash for roofing work he had completed earlier that day. At 1:27 a.m. on October 29, 2000, the appellant made three separate withdrawals from the deceased's bank account. Each transaction was for $100 and was processed at an ATM machine at a plaza [page88 ]about two kilometres away from the apartment building where the appellant and deceased lived.

The motor vehicle accident

19At around 3:00 a.m. on October 29, 2000, the appellant was involved in a single-car motor vehicle accident on the 400 Extension north of Barrie. The car, the deceased's Oldsmobile Aurora, ended up on its roof after rolling over. An accident reconstruction expert testified that the car was traveling at 143 kilometres per hour when the driver failed to negotiate a slight right curve.

20Scattered around the scene of the car accident were several items of the deceased's property, including credit cards, jewellery, a purse and a pager.

21A blood sample taken from the appellant at a local hospital at 5:15 a.m. on October 29, 2000, contained 154 milligrams of alcohol in 100 millilitres of blood. By extrapolation, the appellant's blood alcohol levels at the time the accident occurred would have been between 170 and 180 milligrams of alcohol in 100 millilitres of blood. At the accident scene, the appellant lied about his name and claimed that there had been another person in the car with him, its driver, John. The appellant had been the driver and sole occupant of the vehicle.

The finding of the deceased

22Shortly after 7:00 a.m. on October 29, 2000, police officers arrived at the door of the apartment where the appellant and deceased lived. The door was locked. No signs of forced entry were apparent. Inside the apartment, the officers found the body of the deceased, lying on her back with her arms extended. The position of the body was consistent with having been moved to or repositioned in its final place of rest. The telephone in the apartment was unplugged, the exterior door to the balcony open, and the interior door propped open. All the entertainment equipment was silent.

The cause of death

23The deceased died from strangulation, likely manual strangulation. Force had been applied directly to her neck and sustained for a period of two or three minutes. The examining pathologist could not rule out the application of an object across the front of her neck. No injuries to the side of the deceased's neck were obvious.

24When the deceased died, her blood alcohol concentration was 189 milligrams of alcohol in 100 millilitres of blood. [page89 ]

The appellant's version of events

25The appellant chose not to testify or call witnesses, relying on a lengthy videotaped interview entered as part of the prosecution's case to support his denial of guilt.

26The appellant admitted that he was in the apartment with the deceased from about five o'clock in the evening of October 28, 2000, until midnight or 1:00 a.m. the following day. He drank about eight beers before he left to play pool. He would not tell investigators whether anyone else was in the apartment with him and the deceased. The couple played music on the stereo and danced. The deceased, who was also drinking, fell down briefly while they were dancing. The dog was there and barked from time to time.

27The appellant denied arguing with the deceased and insisted that he did not kill her. He mentioned that another person was driving the car when it left the travelled road surface of Highway 400 en route to Rama. He acknowledged using the deceased's bank card, but pointed out to investigators that it was not unusual for him to do so. He explained that the deceased often left things, including money and jewellery, in her car, thus its presence on the ground at the accident scene.

28Some further references to the evidence adduced at trial on various procedural steps taken there is necessary to elucidate and determine the grounds of appeal raised, but can conveniently await that discussion.

II. The Grounds of Appeal

29The appellant's first and chief complaint is that, as a party who did not understand English, the language of trial, he did not receive the full measure of interpreter assistance to which s. 14 of the Canadian Charter of Rights and Freedoms entitled him.

30The appellant further argues that the trial judge failed to properly instruct the jury about the limited use they could make of the evidence of Lee Barnes and of certain post-offence conduct of the appellant, about the mental element required for murder under s. 229(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, and the relevance of evidence of intoxication to its proof, and that the trial judge failed to properly relate various pieces of evidence introduced at trial to the presumption of innocence and the prosecutor's obligation to prove the appellant's guilt beyond a reasonable doubt.

31The appellant also contends that the trial judge erred in failing to require the prosecutor to call, or in failing to call as the judge's own witness, Tammy Watson, a witness the prosecutor [page90 ]had called at the preliminary inquiry, and further erred in permitting a prosecution witness, Norman Sneddon, to give an opinion and demonstrate the "directionality" of a fingerprint. The appellant claims yet another error in the reception of the appellant's videotaped interview by police.

III. Analysis

A. Interpreter assistance

1. The background

32Critical to an understanding of the appellant's complaint of constitutionally inadequate interpreter assistance is a brief resumé of some preliminary proceedings and various trial incidents that provide essential context for the grievance.

The accident investigation and police interview

33In October 2000, the appellant was almost 25 years old. He had come to Canada from Poland about five or six years earlier. He did not attend any schools in Canada. In his work as a roofer, he spoke both English and Polish.

34Motorists and police officers first came into contact with the appellant on the median of Highway 400 Extension north of Barrie shortly after 3:00 a.m. on October 29, 2000. The appellant spoke in English with an accent. His speech was slurred and he may have stuttered. Some had trouble understanding what he said. He uttered profanities at the police officer who arrested him for public intoxication.

35The appellant was arrested by Peel Regional police officers on a charge of first degree murder shortly before 1:00 p.m. on October 29, 2000. He was told about his right to retain and instruct counsel without delay and read both the primary and secondary police caution. Within one and one-half hours of his arrest, the appellant had spoken with two duty counsel, one of whom, at his request, spoke Polish.

[36] Before homicide investigators returned with the appellant to Peel Region, they attempted to determine the appellant's facility in English. Typical of the appellant's responses, which were all spoken in English, are these: -- I don't understand like the hard words . . . -- When I'm gonna talk to someone just like this, so it's fine, but when someone is telling me about, you know, some . . . difficult words for me, like hard words, I don't understand so . . . like this is no problem. [page91 ]

37The appellant was interviewed for a period of about seven hours at a police station in Mississauga. The interview, which was conducted entirely in English, was videotaped. At one point fairly early in the interview, the appellant mentioned the possibility of having a translator present:

Because you know plus you see I'm very tired, this, this and that you see and for me the best thing will be a translator okay to exactly understand the words and all this and that because if I will understand something, some words a little bit differently than I should and whatever I will say some word and this and that, you see in Polish we can talk no, no problem, I understand this language okay, the English I'm not so good, I never go to the school for English, nothing, I just, I just learned the English like this okay, by myself, by hearing, by this, by this, I didn't go to the school. No efforts were made to obtain an interpreter and the appellant made no further requests for one.

38The appellant challenged the admissibility of the videotaped interview at trial and has renewed that controversy here. In neither place is the challenge rooted in any claim of want of linguistic understanding.

The preliminary inquiry

39The appellant's preliminary inquiry took place in October 2001, almost a year after his arrest. As the preliminary inquiry began, both the appellant and his (then) counsel made clear the nature and the extent of the interpreter assistance the appellant wanted and required:

MR. O'BRIEN: Yes, Your Honour, I've spoken to Mr. Rybak about this matter and I've spoke to the interpreter. It was thought that, at the time that this matter was set, there were some deficits in Mr. Rybak's language, but the deficits are not severe. I've spent most of my time communicating with him in English and in my view his English is fairly solid, but the odd time he'll run into a problem with a word or phrase, but it -- it's rare. So my thought was, rather than have the whole proceedings interpreted to him, which will take some time, that we could move along in English and if something comes up -- and it may not -- then the interpreter's here to assist. . . . . .

Maybe we can see how it goes for a day, and then re-evaluate it after that, as to whether or not we need to keep her in the courtroom, and she can maybe move on to other tasks.

THE COURT: All right.

MR. O'BRIEN: If -- if --

THE COURT: Mr. Rybak, would you stand up, sir.

ACCUSED, JANUSZ RYBAK: Yes.

THE COURT: Is that agreeable with you, sir? [page92 ]

ACCUSED, JANUSZ RYBAK: Yes, okay.

THE COURT: If there is anything in this proceeding that occurs today that you don't understand or you're having any difficulty in understanding the witnesses who testify and you feel you need the assistance of the interpreter, let us know right away. You understand that?

ACCUSED, JANUSZ RYBAK: Yes, sir.

THE COURT: And you can do that by speaking to your lawyer and getting his attention, and he'll bring that problem to my attention --

ACCUSED, JANUSZ RYBAK: Yes, sir.

THE COURT: -- okay?

ACCUSED, JANUSZ RYBAK: Yes.

The pre-trial motions

40At the pre-trial conference required by s. 625.1(2) of the Criminal Code for jury trials, counsel for the appellant does not appear to have asked that an interpreter be provided for the appellant's trial.

41Pre-trial motions began on June 16, 2003 with a voir dire to determine the admissibility of various responses made by the appellant to police officers, as well as a lengthy videotaped interview hours later after the appellant had spoken with counsel and had returned to Mississauga.

42Immediately after arraignment, defence counsel (who had not been counsel at the preliminary inquiry and was not counsel on the appeal) raised the need for an interpreter to assist the appellant in understanding the language at trial. Counsel said:

Mr. Rybak can get by today without one. It would be preferable from our perspective if the court would consider ordering a Polish interpreter. Much of what transpires is completely comprehensible to Mr. Rybak; if things go quickly and certain words are used, it would be difficult for him to understand. I am quite sure we could proceed today but . . .

43The trial judge then spoke directly to the appellant:

THE COURT: That if you have some problems you let Mr. Goldman or Mr. Boni know through one of the constables, or one of the security officers who are right beside you, and they could then indicate -- or you could whisper to Mr. Goldman -- that you're not following, then we'll have something repeated if that's necessary. I'll make certain that the witnesses don't carry on at break-neck speed either, because I don't appreciate that either, all right. So we'll take care of that. But if there's any problem, you let us know and then we'll deal with it, because I don't want you sitting there missing something. On one or two of these hearings that are going to take place -- or motions -- your input in this is going to be very important to your lawyers and to your position, so this isn't a situation that we can take any chances with. So if you're having trouble, let him know and then we'll go about it. I know that you're quite fluent in English, aren't you? [page93 ]

ACCUSED, JANUSZ RYBAK: Kind of, yes.

THE COURT: Well how long -- you've been in this country quite a while, haven't you?

ACCUSED, JANUSZ RYBAK: Yes. Eight -- eight years, I believe, yes.

THE COURT: Yes.

MR. GOLDMAN: I think we can move along with this, Your Honour.

44The trial judge spoke directly to the appellant about his (the appellant's) willingness to begin proceedings on the first day without an interpreter. The appellant confirmed what his counsel had said a few moments earlier: he was willing to proceed that day without an interpreter. The following exchange occurred:

THE COURT: -- I mean we won't begin without it. But you feel you can start and go ahead without any problem, is that right?

ACCUSED, JANUSZ RYBAK: Yes.

45As proceedings began on the afternoon of the first day of pre-trial motions, defence counsel advised the trial judge that the appellant "would feel significantly better" with a Polish interpreter. When defence counsel mentioned to the trial judge that the appellant had comprehended "the gist" of what was going on, the trial judge interjected, immediately with an offer to start proceedings "all over again" by requiring the witnesses who had testified to return to repeat the evidence they had given that morning with an interpreter repeating in Polish for the appellant the proceedings conducted in English. Defence counsel expressly declined the offer as unnecessary. After further consultation with the appellant, defence counsel explained to the trial judge what was required commencing the following day:

MR. GOLDMAN: Yes, it -- it's as we thought, Your Honour, it's -- it's -- it's -- there are specific -- specific words that are used and said that -- that he doesn't understand; it's not that he doesn't comprehend what's going on or understand the nature of the proceedings by -- by reason of the language difficulty. It -- it comes down to specific words or phrases --

THE COURT: Uh-huh.

MR. GOLDMAN: -- so that in the -- in the circumstance I -- I'd just ask Your Honour -- we would confirm our request to have an interpreter available.

46The trial judge directed the prosecutor to contact the Coordinator of Interpreters and obtain "their best Polish interpreter" for the following morning. The trial judge offered to re-commence the voir dire when the interpreter was provided, but defence counsel did not take him up on the offer. [page94 ]

47Later in the afternoon of the first day of pre-trial motions, the trial judge inquired of the Coordinator of Interpreters about the availability of "a first-rate interpreter" for the following day and the remainder of the trial proceedings. The coordinator assured the trial judge that all the interpreters were "first-rate; they are all accredited by the Ministry of the Attorney General". The trial judge was somewhat sceptical (not to mention prescient) about the abilities of some interpreters. He insisted on a proper interpreter for the trial proceedings.

The selection and instruction of the interpreter

48The trial judge rejected the first interpreter who appeared the following morning. Another interpreter, Diana Zywulko, appeared. The interpreter and appellant confirmed their understanding of each other. The trial judge then instructed the interpreter about her duties and confirmed the appellant's understanding:

THE COURT: Now I'm told by his counsel and by him he's been in this country eight years, he speaks English rather well, I think, but he has trouble with some phrases, so I'm going to leave it up to you. I don't think you need to interpret everything that's going on in the trial. But you work out your own arrangement, all right -- that would be a big help to all of us. I don't think you have to be continually going, but you -- I know you've done this before. I don't think I've had the pleasure of working with you but I'm not -- I don't think so. But in any event you two can work it out together, all right. In other words, he'll let you know by eye contact, or whatever -- whatever arrangement you make -- that he's having some difficulty, and then you can jump right in there. And if you need it to be slowed down a bit, you can let me know. All right. Now do you understand what I've just said?

ACCUSED, JANUSZ RYBAK: Yes, sir.

THE COURT: So you two work it out together, all right. I don't want you missing anything, but you've got a professional interpreter now and she'll work with you, and there's no need for her to be going on and on about that. Is that satisfactory to you?

ACCUSED, JANUSZ RYBAK: Yes, sir. Thank you very much.

49Three days later, the appellant indicated through his counsel that the interchange with the interpreter "is exceptionally good" and sought to have Ms. Zywulko continue as the interpreter (as she did) throughout the trial.

The trial proceedings

50Trial proceedings began in late September 2003. The jury returned its verdict on November 1, 2003. The trial record contains no complaint about the competence of the interpreter, nor of the manner in which the interpretation was provided. At no point [page95 ]did the appellant claim any lack of understanding of the proceedings or of the interpreter.

The fresh evidence on appeal

51To support his claim of constitutionally inadequate interpreter assistance, the appellant sought leave to introduce fresh evidence on the hearing of the appeal. The respondent offered no resistance. The evidence consists of transcripts of testimony given by persons responsible for the assignment and supervision of interpreters in the Regional Municipality of Peel at various times, including fall 2003 when the appellant's trial took place. The testimony was originally given during a wide-ranging inquiry in an unrelated proceeding conducted by a judge of the Superior Court of Justice sitting as a summary conviction appeal court.

52Present purposes do not command a forced march through the minutiae of the fresh evidence, nor a lecture to those in charge of courts administration about the deficiencies in the testing, assignment and supervision of court interpreters. No such issues are ripe for determination on this appeal.

53When interpreter assistance is required in a criminal trial, interpreter coordinators are to assign an accredited interpreter to the task. Unaccredited interpreters may only be used in situations of extreme urgency. Where an accredited interpreter cannot be found, the coordinator must notify the prosecutor, defence counsel and presiding judge of this unavailability. Extreme urgency refers to last minute calls.

54Diana Zywulko, the Polish interpreter provided by the interpreter coordinator in this case, was not an accredited interpreter. She failed Ministry testing twice and withdrew from the testing on a third occasion. She failed the memory section (in English), hence her performance in Polish was not evaluated.

55Forouz Masrour was the interpreter coordinator who assigned Diana Zywulko to the appellant's trial. Ms. Masrour was well aware that Ms. Zywulko was not an accredited interpreter. Far from advising the trial judge of Ms. Zywulko's lack of accreditation, as was her duty, Ms. Masrour conveyed the impression to the trial judge that Ms. Zywulko was in fact properly accredited.

56Forouz Masrour knew that Diana Zywulko had served as a court interpreter in Peel Region for many years. Ms. Masrour considered that Ms. Zywulko had a proven command of both English and Polish, despite her failures to achieve accreditation, deficiencies that Ms. Masrour assigned to health problems and nervousness about the manner in which the testing was [page96 ]conducted. Shamia Jhoofy, an accredited interpreter, described Diana Zywulko as "one of our best Polish interpreters", despite her lack of accreditation.

57The fresh evidence lacks a nexus to the proceedings at the appellant's trial, more particularly to his understanding of them. We lack an independent record of the interpreter's words, thus the wherewithal to make an ex post facto evaluation of the accuracy of the interpretation provided. Did the appellant understand the interpreter? Did the appellant seek the interpreter's assistance about the evidence or other trial events? How often? About what? Was there something about the interpreter's version that the appellant did not understand? Nothing.

58Trial counsel made no objection to the manner of interpretation provided, nor did they draw to the trial judge's attention any difficulty with the interpreter so that the trial judge could undertake an inquiry and take any corrective action considered necessary in the circumstances.

2. The complaint

59The appellant says that, as a person who did not understand the language in which trial proceedings were conducted, he was guaranteed the assistance of an interpreter under s. 14 of the Charter. Despite some facility in the language of trial, the appellant was entitled to all the Constitution guarantees: continuous, precise, impartial, competent and contemporaneous interpretation of the trial proceedings. And what happened here fell short of what the Constitution demands and guarantees.

60Several factors contributed to the constitutional default here. The trial judge's instructions to the interpreter and appellant, essentially that they work out between them what was to be interpreted, meant that the interpretation lacked continuity, precision and contemporanity. No one inquired about the competence of the interpreter. In the result, an unaccredited and presumptively incompetent interpreter provided interpretation, doubtless equally flawed. The appearance of a fair trial was inevitably compromised giving rise to a miscarriage of justice.

61The appellant contends that the Charter does not make fine distinctions among the myriad degrees of language deficiency. Once a deficit is made to appear in an accused's understanding of the language of trial proceedings, that accused is entitled to his or her full constitutional entitlement. It is of no constitutional moment by how much the accused's understanding misses the mark, only that it does. [page97 ]

62The need for interpretation was plainly established here. The appellant was entitled to the full constitutional response, absent informed waiver, not half-measures. There was neither informed waiver, nor constitutional compliance. A new trial should follow.

3. Discussion

The guarantee of interpreter assistance

63The constitutional guarantee invoked by the appellant, s. 14 of the Charter, is in these terms:

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

64When the language of s. 14 is unpacked, it reveals three elements: (i) Standing: "[a] party or witness in any proceedings"; (ii) Language deficiency: "who does not understand or speak the language in which the proceedings are conducted"; and (iii) Entitlement: "the right to the assistance of an interpreter".

65As an accused in a criminal trial, the appellant has standing to invoke the entitlement, provided he can establish the necessary deficiency. The controversy here has to do with the scope of the entitlement in light of the extent of the appellant's linguistic deficiency.

The purpose of the guarantee

66The proper approach to the interpretation of the right delineated in s. 14 is purposive. In the result, it is necessary first to specify the purpose underlying the provision: said differently, to delineate the nature of the interests it is meant to protect (Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, 14 C.C.C. (3d) 97, p. 106 C.C.C.).

67The guarantee in s. 14 serves several important purposes. It ensures that a person charged with a crime hears the case against him or her, and is furnished with a full opportunity to answer it. The right touches on the very integrity of the administration of justice in the country and is intimately related to our basic notions of justice, including the appearance of fairness. Likewise, the right displays an affinity for our claim of [page98 ]multiculturalism, partially demonstrated by s. 27 of the Charter (R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951, [1994] S.C.J. No. 16, 92 C.C.C. (3d) 218, at pp. 977-78 S.C.R., p. 240 C.C.C.).

The principle underlying the guarantee

68The interests protected by the right to interpreter assistance guaranteed by s. 14 are in service of the underlying principle of linguistic understanding (Tran, at pp. 977-78 S.C.R., p. 240 C.C.C.).

69Linguistic understanding, like physical and intellectual presence, is an aspect of the requirement in s. 650(1) of the Criminal Code that an accused, other than an organization, "shall be present in court during the whole of his or her trial", apart from certain exceptions in s. 650(2) none of which apply here (R. v. Reale, 1973 55 (ON CA), [1973] 3 O.R. 905, [1973] O.J. No. 2111, 13 C.C.C. (2d) 345 (C.A.), at p. 914 O.R., p. 354 C.C.C., affd 1974 23 (SCC), [1975] 2 S.C.R. 624, [1974] S.C.J. No. 118, 22 C.C.C. (2d) 571).

70The principle of linguistic understanding is reflected in the unqualified language of s. 14 of the Charter, and forms an integral part of the presence requirement of s. 650(1) of the Criminal Code. In these circumstances, it should scarcely surprise that the level of understanding protected by s. 14 is, of necessity, high (Tran, at pp. 977-78 S.C.R., p. 240 C.C.C.).

71The substance of the guarantee in s. 14 ensures that a party has the same basic opportunity to understand and be understood as if she or he were conversant in the language of the proceedings. That said, the principle of linguistic understanding is not to be elevated to the point where those with difficulty communicating in or understanding the language of proceedings are given, or are seen to be given, unfair advantage over those fluent in the language of proceedings. In the end, the purpose of the right to interpreter assistance is to create a level and fair field of play, not to provide some individuals with more rights than others (Tran, at pp. 978-79 S.C.R., p. 241 C.C.C.).

The need for an interpreter

72A claimant of the right to interpreter assistance must demonstrate that she or he satisfies (or satisfied) the conditions precedent to entitlement to the right. In the language of s. 14, the claimant, like this appellant, must demonstrate that he does "not understand or speak the language in which the proceedings are conducted".

[73] The right to interpreter assistance is neither automatic nor absolute. That said, Tran, at pp. 979-82 S.C.R., pp. 242-43 C.C.C., [page99 ]teaches that, as a general rule, an interpreter should be appointed to assist an accused where: (1) it becomes apparent to the judge that an accused is, for language reasons, having difficulty expressing him or herself or understanding the proceedings and that the assistance of an interpreter would be helpful; or (2) an accused (or counsel for the accused) requests the services of an interpreter and the judge is of the opinion that the request is justified.

74Trial judges are to approach questions of the need for an interpreter with a measure of sensitivity and understanding. Judges should not be too quick to draw adverse inferences where the claimant, such as an accused at a criminal trial, has some facility with the language of the proceedings. After all, some persons may be able to communicate in a language for general purposes but not have sufficient comprehension or fluency to face a trial with its onerous consequences without the assistance of a qualified interpreter (Tran, at pp. 980-83 S.C.R., pp. 243-44 C.C.C.).

75While each participant in a criminal trial -- prosecutor, judge and defence counsel -- has an obligation to be vigilant about an accused's need for interpreter assistance, it is defence counsel who is most likely to have the greatest contact with the accused, thus the person who is in a preferred position to offer assistance on the issue of the nature and extent of the accused's need of interpreter assistance.

76Sometimes, a reminder about the self-evident is helpful. Language facility is a variable, not a constant. Some persons communicate in a language better than others. The same may be said of language comprehension. These observations apply as much to persons charged with and on trial for alleged crimes as they do to others who are neither accused nor witnesses in criminal proceedings.

77Some persons accused of crime are simply incapable of understanding and making themselves understood in the language of the trial without interpreter assistance. Others function tolerably well for the most part, but need help with some words or phrases, especially language not used in everyday social intercourse.

78Variances in the nature and extent of understanding of the language of trial proceedings bespeak corresponding variances in the nature and extent of interpreter assistance required to fulfill the purpose that underlies the guarantee of s. 14. Said in another way, what it takes in individual cases to restore a language-deficient accused to the standard set by s. 14, the same basic opportunity to understand and be understood as if she or he were conversant in the language of trial proceedings, is also variable, not fixed. [page100]

The standard of interpreter assistance

79Section 14 guarantees "the right to the assistance of an interpreter". The standard imposed by the unadorned words of the guarantee is high, but does not rise to the unattainable -- perfection (Tran, at pp. 985-86 S.C.R., p. 246 C.C.C.).

80Under Tran, the standard of interpretation for which s. 14 provides is defined by reference to several criteria. These criteria help to ensure that persons with language deficiencies have the same opportunity to understand and be understood as if they were conversant in the language in which trial proceedings are being conducted (Tran, at pp. 985-986 S.C.R., p. 246 C.C.C.).

81The Tran court identified several criteria as inclusive, but not exclusive: continuity, precision, impartiality, competency, contemporaneity (Tran, at pp. 985-86 S.C.R., p. 246 C.C.C.).

82Continuity ensures that interpretation is continuous, without breaks or mere summaries of evidence or other aspects of the proceedings. Precision does not require perfection. Interpretation involves a lower standard than translation. Impartiality ensures that the interpretation provided is objective and unbiased (Tran, at pp. 985-988 S.C.R., pp. 246-48 C.C.C.).

83The criterion of competence insists upon an interpretation of sufficiently high quality to ensure that justice is and appears to be done. We lack universally acceptable standards for the assessment of competency, although we do require an interpreter to take an oath or make a solemn affirmation before beginning any interpretation of the proceedings. Competence inquiries are mandated where there are legitimate reasons to doubt an interpreter's competence (Tran, at pp. 987-90 S.C.R., pp. 248-49 C.C.C.).

84Competence and accreditation are not co-extensive. In the absence of universally acceptable standards for assessing interpreter competency, neither presence nor absence of accreditation can be considered dispositive of the issue of competence (Tran, at pp. 987-90 S.C.R., pp. 248-49 C.C.C. See also, State v. Pham, 879 P.2d 321, 75 Wn. App. 626 at 326 (1994), at p. 326 P.2d; R. v. Ungvari, [2003] E.W.J. No. 4217, [2003] E.W.C.A. Crim 2345 (C.A. (Crim. Div.)), at para. 23; and Martins v. Texas, 2001 Tex. App. LEXIS 5096, 52 S.W.3d 459 (2001), at pp. 473-74 S.W.3d).

85Interpretation must occur contemporaneously with the proceedings being interpreted. The preferable method of achieving contemporaneity is to have consecutive, rather than simultaneous interpretation.

86It is not every deviation from the procedural standard of interpretation that offends s. 14. Some do. Others do not. A party who claims a s. 14 breach must demonstrate that the lapse in [page101] interpretation that occurred had to do with the proceedings themselves, and thus with the vital interests of the accused, not merely with collateral or extrinsic matters like scheduling or something similar (Tran, at pp. 990-91 S.C.R., p. 250 C.C.C.).

The role of prejudice

87Where the conditions precedent of the section are satisfied, the guarantee of s. 14 to interpreter assistance is unqualified. In the result, an assessment of whether the right has been breached invites no consideration of actual prejudice as a result of the infringement. Denial of proper interpretation when the case is being advanced is inherently prejudicial. Proof of actual prejudice falls to be assessed and accommodated under the remedial provisions of s. 24(1) of the Charter (Tran, at pp. 995-96 S.C.R., p. 254 C.C.C.).

Waiver

88A person entitled to claim interpreter assistance may waive the right conferred by s. 14, but the threshold for waiver is very high. To be effective, the waiver must be clear and unequivocal, be made with full knowledge of both the rights the procedure was enacted to protect and the effect the waiver will have on those rights, and be made personally by the accused, if necessary after inquiry (Tran, at pp. 996-97 S.C.R., p. 255 C.C.C.).

The onus of proof

89A party who claims an infringement of a Charter right or freedom must establish the infringement, along with entitlement to any consequential relief sought, on a balance of probabilities. Where the claim asserts an infringement of s. 14, it falls to the applicant to demonstrate, on a balance of probabilities, not only that she or he needed interpreter assistance, and that the assistance received fell below the constitutionally guaranteed standard, but also that this shortfall occurred as the case was being advanced (Tran, at pp. 997-98 S.C.R., p. 256 C.C.C.). It is worth reminder that, despite the rigour of the constitutional standard it erects, Tran itself acknowledges limited allowable departures, and recognizes that not every deviation from the standard constitutes a Charter violation (Tran, at pp. 990-91 S.C.R., p. 250 C.C.C.).

The principles applied

90Language facility, thus language deficiency, is variable. It necessarily follows that what may be required to remedy a language deficiency, to bring it up to a defined standard, will [page102] vary from one person to the next, whether accused or witness, likewise comprehension or expression.

91In practical terms, the primary source of information about the existence, nature and extent of a language deficiency is the person who suffers it. As Leggatt L.J. observed in R. v. Gedi, [1997] E.W.J. No. 2959 (C.A. (Crim. Div.)) [at para. 11], a case that involved provision of a stand-by interpreter when the appellant testified on his own behalf:

But in practice a defendant knows whether he is following a question put to him or needs assistance by way of translation before he can do so, and he certainly knows whether he is being able to express himself satisfactorily in the foreign language or whether he needs the help of an interpreter. In our judgment there was no objection that could usefully be made to the course that is commonly adopted and was adopted here.

92It is a fact of everyday life in the trial courts of this and other provinces that many persons charged with crime whose first language is not the language of trial do not require continuous interpretation of every syllable uttered during proceedings that affect their vital interests. Some require more than others to ensure that they have the same opportunity to understand and be understood as if they were conversant in the language used in the proceedings.

93In Tran itself, the appellant neither spoke nor understood the language of trial. Despite instructions from the trial judge to fully translate his (the interpeter's) testimony as he gave it, the interpreter answered all questions asked of him in English, and only summarized his evidence at the end of his examination-in-chief, and again at the end of cross- examination. An exchange between the interpreter and the trial judge was not interpreted at all to Tran. What was required to bring Tran's language deficit up to the required level -- to understand as if he were conversant in the language of trial -- was vastly different from what the appellant asked for and required here.

94It falls to the appellant to demonstrate, on a balance of probabilities, that the interpreter assistance provided here came up short of the constitutionally guaranteed benchmark.

95Despite express invitation from the trial judge to alert him to any difficulties encountered by the appellant with the interpreter, or with the interpretation, the trial record is eerily silent, utterly barren of any suggestion of incompetence or other interpretation deficiency. To the contrary, when the interpreter issue was first bruited during pre-trial motions, the appellant supported the assignment of Ms. Zywulko as the interpreter, and sought assurances from the trial judge that she would remain throughout the trial. His request was honoured. [page103]

96The imposition of an onus on a party who advances constitutional infringement as the foundation for particular relief, here a new trial, carries with it the obligation to discharge the onus by some form of proof. Proof of infringement is a condition precedent to entitlement to a remedy. Said another way, the remedy is not for the asking, only upon the showing.

97The appellant's proof consists of fresh evidence culled from another and later proceeding. It shows that the interpreter supplied here was not accredited by the Ministry of the Attorney General (she failed the accreditation test twice and withdrew a third time). She was put forward by the interpreter coordinator, whether knowingly or unwittingly, as accredited. She had served as an interpreter in the courts in Peel Region for a decade. According to one accredited interpreter, Ms. Zywulko was one of the best interpreters available, accredited or not.

98What is lacking in the appellant's fresh evidence materials, is a nexus between the systemic and accreditation flaws identified in the materials filed, and the interpreter assistance provided in this case: no affidavit or other evidence from the appellant, none from trial counsel and deafening silence in the trial record. Something supportive of this claim of constitutional infringement is necessary, but lacking (Pham, at paras. 5-6; and Mohammadi c. R., 2006 QCCA 930, [2006] Q.J. No. 6809, 2006 QCCA, at para. 36).

99The appellant urges a bright line rule that essentially proceeds from any showing of a need for interpreter assistance to provision of continuous, precise, impartial, competent and contemporaneous interpretation as the only means of ensuring that the language deficient have the same opportunity as those conversant in the language of trial. Such a rule would render the procedure followed here per se constitutionally flawed.

100In my respectful view, the teachings of Tran are that the interpretation provided must be sufficient to ensure that the language deficient have the same opportunity as the language proficient to understand and be understood in the proceedings. Some require more than others, as in Tran, to reach the required level of understanding. Tran recognizes allowable departures from its general, though not unremitting rule (Tran, at pp. 990-91 S.C.R., p. 250 C.C.C.). This appellant had difficulty with certain words. He was offered and accepted a method of interpretation that serviced his language deficiency. He made no complaint about any inadequacies at trial and has introduced no evidence on appeal indicative of any deficits.

101It is plain from what happened on the first day of pre- trial motions that the appellant fully understood the trial judge's direction that he (the appellant) was to speak up or indicate to [page104] his counsel whenever something was said or done that he did not understand or wanted repeated. He made no such request either of his counsel or of the trial judge at any time during the several weeks of trial proceedings. Indeed, even with a transcript of trial proceedings available for painstaking review, the appellant offers nothing to ground his claim that he did not have the required understanding of the evidence adduced or proceedings conducted that he sought and to which he was constitutionally entitled.

102I would not give effect to this ground of appeal.

B. Alleged Errors in Jury Instructions

103Several grounds of appeal allege deficiencies in the trial judge's final instructions to the jury. Each requires separate consideration and decision.

1. The identification evidence of Lee Barnes

Background

104Lee Barnes gave evidence about having seen a man leaving the apartment building at 275 North Service Road late in the evening of October 28, 2000 or early the following morning. The man had a large German Shepherd dog on a leash with him. Barnes had seen the man about six times before, and associated him with a blonde woman who drove a burgundy or maroon-coloured Oldsmobile Aurora car. As Barnes left the apartment building, he saw the Aurora in the parking lot, lights on and motor running.

105Lee Barnes described the man with the dog as "grubby" or "rocker" looking with shoulder-length dark hair. He did not pay much attention to the man's face or clothing. Barnes never saw a photo line-up. He identified the appellant at trial as the man with the dog.

106Defence counsel did not object to the introduction of evidence of Barnes' dock identification of the appellant at trial. Nor did defence counsel complain about how the trial judge handled Barnes' evidence in his final instructions.

The complaints

107The complaints advanced on appeal are essentially twofold. The trial judge erred in law by failing to instruct the jury expressly that Barnes' in-dock identification was entitled to no weight (in satisfying the prosecutor's burden) and was, in fact, exculpatory of the appellant. The trial judge was also wrong to instruct the jury that Barnes' identification of the German [page105] Shepherd dog was either independent evidence of identification or, at the least, capable of supporting Barnes' evidence identifying the appellant as the man with the dog.

108The appellant says that Barnes' evidence reduces to an in-dock identification unsupported by any pre-trial identification procedures and at odds with vital features of the appellant's physical appearance, including his height and hair length. These discrepancies leave Barnes' evidence as evidence of resemblance only, not identification, and the jurors should have been told to ignore this evidence, or to treat it as exculpatory.

109The appellant submits that the reference to the dog exacerbated the error about Barnes' evidence. Barnes' reference to the dog did not strengthen this identification; to the contrary, if anything, it weakened it, because Barnes assumed the person with the dog was the same person he had seen with the dog on other occasions.

The instructions

110In final instructions, the trial judge reviewed the essential features of Barnes' testimony. His rendition eschewed non-essentials and offered jurors a balanced account, including the most important points developed in cross-examination.

111The trial judge instructed the jurors at length about the eyewitness identification evidence of Lee Barnes. Among other things, he pointed out: (i) the need to be very cautious about relying on eyewitness testimony to find guilt; (ii) the link between wrongful convictions and eyewitness identification evidence; (iii) the absence of any real reason for Barnes to recall the incident, essentially an observation of a man walking a dog; (iv) the absence of any meaningful detail in Barnes' description of the man walking the dog; (v) the inconsistency between Barnes' description of the man's hair length and the appearance of the appellant a short time later at a nearby ATM, as revealed by a photograph filed as an exhibit; and (vi) the absence of any real evidentiary value from the in-dock identification. [page106]

112Later in his final instructions, the trial judge discussed the defence position in connection with the evidence of Lee Barnes:

He asks you to look closely at the evidence of Lee Barnes -- there are problems, inherent problems because of the in- dock identification which the defence suggests is really worthless and would only amount to anything if you were satisfied of the certainty of the underlying circumstances of that identification. He points out that those circumstances should make you shudder -- although he did not use those words, but that is what he meant I would think -- that those circumstances are such that you should conclude that his evidence is unreliable because of the discrepancies in the testimony. He points out that Rybak does not have shoulder-length dark hair. There is no description of his face or clothing that is worth any weight at all. There is absolutely no description of the face of the person. He asks 'Why didn't the police assemble a photo line-up?' -- put a dozen photographs together of individuals having some features like Mr. Rybak and put those 12 together and see if this witness could pick out Rybak as the person he saw walking the dog at the material time. Mr. Goldman called this a 'shocking failure' by the police. He says that Barnes' observation of the man likely occurred at 1:30 a.m., and of course at that time you know that he was at the ATM machine. He tells you that there was no mention of the Aurora car in the lot, in the October 29th statement; just mentioned in the November 5th statement. He is an unreliable witness.

Discussion

113Defence counsel did not seek to exclude evidence of Barnes' in-dock identification of the appellant as the man with the dog at 275 North Service Road, on the ground that the prejudicial effect of the evidence overbore its probative value (R. v. Holmes (2002), 2002 45114 (ON CA), 62 O.R. (3d) 146, [2002] O.J. No. 4178, 169 C.C.C. (3d) 344 (C.A.), at para. 40; R. v. Tebo, 2003 43106 (ON CA), [2003] O.J. No. 1853, 175 C.C.C. (3d) 116 (C.A.), at para. 20).

114The circumstances of the in-dock identification of the appellant in this case obligated the trial judge to strongly caution the jurors about the dangers inherent in this superficially cogent evidence. As Arbour J. pointed out in R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, [2002] S.C.J. No. 40, 163 C.C.C. (3d) 129, at para. 50:

I think it is important to remember that the danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it. I am not persuaded that the instruction quoted above, to the effect that such identification should be accorded "little weight", goes far enough to displace the danger that the jury could still give it weight that it does not deserve.

115In this case, as part of his instructions about the frailties of eye witness identification evidence, the trial judge made specific reference to Barnes' in-dock identification of the appellant: [page107]

It is true the identification in court, 'Oh, that's the man', that really is not what we are looking at. When he says 'Well that's the man. That's the man I saw' I would not pay too much attention to that. You have got to look at what is behind all this.

116The adequacy of instructions to alert jurors to the frailties associated with evidence of an in-dock identification will depend on the circumstances revealed in individual cases. What is adequate to the task in one instance may well be deficient in another.

117Acceptance of Barnes' testimony that it was the appellant he saw with the German Shepherd dog late in the evening of October 28, 2000, or early the following morning, provides a circumstantial link between the appellant and the deceased's apartment, as well her car. The appellant acknowledged in his police interview that he had been with the deceased at the apartment until late in the evening of October 28, 2000. He was at a nearby bank machine early the following morning, and about two hours later, was involved in a motor vehicle accident with the deceased's car north of Barrie.

118In these circumstances, especially in the absence of any objection about the extent of the caution provided concerning the evidentiary value of the in-dock identification, I am not persuaded that the caution provided was inadequate. The trial judge's instructions on Barnes' evidence tracked clearly the appellant's position about the grounds upon which this evidence was unreliable and should be rejected by the jury.

119In Chartier v. Quebec (Attorney General), 1979 17 (SCC), [1979] 2 S.C.R. 474, [1979] S.C.J. No. 56, 48 C.C.C. (2d) 34, the plaintiff brought a petition of right in the Superior Court claiming damages for, among other things, unlawful arrest. The Superior Court dismissed the petition. The Quebec Court of Appeal affirmed. Critical to the appellant's claim for damages was a submission that the trial judge had misapprehended certain evidence given at trial, in effect considering it evidence of identification (thereby justifying the appellant's arrest) when it was exculpatory because it included a feature, grey hair, that was dissimilar to the appellant's appearance. For the majority, Pigeon J. said at p. 494 S.C.R., p. 52 C.C.C.:

Regardless of the number of similar characteristics, if there is one dissimilar feature there is no identification. The majority considered that the evidence did not amount to an identification, rather was evidence only of resemblance.

120The appellant urges the application of the excerpted remarks of Pigeon J. to the circumstances of this case with the result that the trial judge should have told the jury that the [page108] discrepancies about hair length and the man's height meant that Barnes' evidence was no evidence of identification.

121The existence of a dissimilar feature between a description provided by a witness and an accused may reduce what is said to be evidence of identification to evidence of a resemblance. As a general rule, a resemblance, without more, does not amount to an identification. But the combined force of evidence of a resemblance and other inculpatory evidence may assist in completion of the prosecution's proof (R. v. Boucher, 2000 3270 (ON CA), [2000] O.J. No. 2373, 146 C.C.C. (3d) 52 (C.A.), at para. 19). It simply goes too far to say that evidence of a resemblance is of no value in identifying the person responsible for certain conduct.

122The trial judge did not instruct the jurors that, if they found that the dog was the deceased's dog, they could conclude that the appellant was the person who was walking it. There was nothing wrong with leaving the presence of the dog to the jury as an item of evidence for them to consider on the issue of whether it was the appellant who was the person that Barnes saw.

123I would not give effect to any ground of appeal alleging error in the jury instructions on the evidence of Lee Barnes.

2. The instructions on the mental element in murder

Background

124Despite several correct statements of the mental or fault element contained in the definition of murder for which s. 229(a)(ii) of the Criminal Code provides, the trial judge on one occasion said what follows:

Under the second branch of the definition of murder the essential mental element is an intention to cause bodily harm of such a grievous and serious nature that the defendant knew it was likely to cause death, coupled with recklessness as to its consequences. In this context recklessness involves awareness of the danger of the consequences from prohibited conduct, but a persistence nonetheless with knowledge of the risk. Recklessness is the attitude of one who was aware of the danger that the prohibited conduct could bring but nevertheless persisted in the conduct despite knowledge of the risk. Recklessness is the attitude of one who simply does not care. He knows the risk of carrying on with the prohibited conduct but is indifferent to the consequences -- he simply does not care. In order to find the accused guilty of murder you must be satisfied beyond a reasonable doubt that he had one of the two specified specific intents.

The complaint

125The appellant says that it is not enough under s. 229(a)(ii) that an accused foresees simply a danger of death, rather she or he must foresee a likelihood that death will follow from the bodily [page109] harm that she or he is causing the victim. The instructions given, in the only extended discussion of the mental element in s. 229(a)(ii), left the jurors to determine guilt on a basis that was too expansive. An error of this kind warrants a new trial since the jurors may well have decided the appellant's guilt on this erroneous basis.

Discussion

126In the excerpted passage, the trial judge began his instructions with a reference to the mental element in s. 229(a)(ii). Apart from the compendious references to recklessness "as to its consequences", rather than to the full statutory terms, "reckless whether death ensues or not", the instruction is accurate. The phrase "its consequences", which is repeated later as "the consequences", refers grammatically to the consequences of the bodily harm earlier described as death.

127In an attempt to help the jury to understand the notion of recklessness, the trial judge referred to an awareness of the danger of certain consequences following from the prohibited conduct. And it is in his description of the degree of foresight required that the trial judge slipped into error.

128In R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723, 189 C.C.C. (3d) 199 (C.A.), leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 502, 195 C.C.C. (3d) vi, a decision not rendered until about 11 months after the trial judge had charged the jury in this case, this court held that it was not sufficient that an accused foresee simply a danger of death following from the bodily harm inflicted to satisfy the standard set by s. 229(a)(ii). An accused must foresee a likelihood of death ensuing from the bodily harm she or he has inflicted on the victim. The terms "danger" and "likelihood" reflect risks of different magnitudes.

129It is worth reminder that in Czibulka the substitution of "danger" for "likelihood" was not the only error made in connection with the mental element in s. 229(a)(ii). The consequences of which foresight is required were described as "bodily harm", rather than "bodily harm likely to cause death", or, said another way, the likelihood of death as a consequence of the bodily harm. The flawed instructions in Czibulka were repeated, along with the correct instructions, in response to a question by the jury.

130The Czibulka court found it unnecessary to decide whether the errors made in explaining the mental element in s. 229(a)(ii) to the jury in that case were sufficiently serious to warrant a new trial.

131In R. v. Latoski (2005), 2005 30697 (ON CA), 77 O.R. (3d) 505, [2005] O.J. No. 3565 (C.A.), the trial judge had also provided an erroneous [page110] definition of recklessness when instructing jurors on the mental element in murder under s. 229(a)(ii). This court assessed the error in the context of the entire instructions on the mental element in murder. There, as here, the trial judge had correctly recited the mental element for murder several times, both before and after the misdirection. The court rejected the complaint of prejudicial misdirection. See also, R. v. Lessey (2006), 2006 11847 (ON CA), 80 O.R. (3d) 181, [2006] O.J. No. 1476, 208 C.C.C. (3d) 186 (Ont. C.A.).

132In this case, as in Latoski, the error was sandwiched among several correct instructions. In passages both before and after the admitted misdirection on the meaning of "reckless" in s. 229(a)(ii), the trial judge repeatedly and unerringly recited the mental element required to establish murder under the subparagraph. The jurors asked no questions about this subject. Defence counsel made no objection to the instructions on this issue.

133The expert evidence of the examining pathologist assigned manual strangulation as the cause of the deceased's death. In practical terms, when the nature and extent of the force required to cause death by this mechanism is considered, the significance of the definition of murder in s. 229(a)(ii) to the appellant's liability for murder fades into the background.

134I would not give effect to this ground of appeal.

3. Instructions on evidence of post-offence conduct

Background

135The jury heard evidence from several witnesses about the appellant's activities from the time he left the deceased's apartment until his arrest on public intoxication charges several hours later. He left the deceased's apartment in her car, drove to a nearby ATM and made three withdrawals from her bank account before heading north. Travelling at an excessive speed, he failed to properly negotiate a curve in the road and rolled the car over on the median of a controlled access highway. He lied to the police about the identity of the car driver, among other things.

The complaint

136The appellant's complaints are of non-direction on evidence of post-offence conduct. Nothing was said about the importance of consideration of alternative explanations for the conduct or the process of inferring guilt from this evidence.

137The appellant says that the jury was left essentially untutored about the use it could make of evidence of the appellant's post-offence conduct. The traditional instructions were not provided. Nothing was said about the role of alternative [page111] explanations for the conduct, which could have related to the appellant's impaired operation of the deceased's car, or of the need to exercise caution in inferring guilt of the offence charged from such conduct. The jury was not told that it could infer guilt only after rejecting any alternative explanations and, at all events, that the conduct had only an indirect bearing on guilt.

Discussion

138During the pre-charge conference, the trial judge advised counsel that he did not propose to give the usual post- offence conduct instruction about evidence of the appellant's flight and related activities. Instead, he proposed to leave this evidence as circumstantial evidence for the jurors to consider "on the issue of whether he is the perpetrator". Defence counsel indicated that he was content that the judge deal with this evidence in the manner he had suggested.

139The trial judge's instructions on circumstantial evidence included the following passages:

However, where the evidence is wholly circumstantial there is also the uncertainty as to whether the correct inference has been drawn from the proven facts. Circumstantial evidence should be scrutinized carefully with this in mind. You must be satisfied that the inference you propose to make is the only reasonable inference to be drawn from the proven facts.

In the case you are dealing with, the Crown's case against the defendant Janusz Rybak is almost entirely based on circumstantial evidence. In such a case an accused should only be found guilty when you are satisfied that the guilt of the accused person Janusz Rybak is the only reasonable conclusion to be drawn from the whole of the evidence. The only reasonable conclusion to be drawn from the whole of the evidence.

140Towards the end of the main charge, the trial judge returned to the subject of circumstantial evidence:

Now there is another point that I must remind you of and this is very important because this is a case of circumstantial evidence. You know that; there is no doubt about that, and it is very important that you understand that in a case when you are dealing with circumstantial evidence and that the case for the prosecution is based entirely on circumstantial evidence, an accused person should only be found guilty when you are satisfied that the guilt of the accused is the only reasonable conclusion to be drawn from the whole of the evidence. The only reasonable conclusion or inference to be drawn from the proven facts. That is another point that you should keep uppermost in your mind when examining this case.

141As a fact in issue, the complicity of an accused in the crime charged may be proven by direct evidence, by circumstantial evidence, or by the two kinds of evidence in combination.

142Evidence of post-offence conduct is a kind of circumstantial evidence that involves retrospectant use: from later conduct, [page112] the trier of fact is invited to infer prior participation in a crime, a fact in issue. The inference is permissible if, but only if, based on human experience and common sense, the inference is reasonable. R. v. Figueroa, [2008] O.J. No. 517, 2008 ONCA 106, at para. 33.

143Evidence that an accused is in possession of a deceased's property shortly after the death of the deceased may provide a circumstantial link between the accused and the death of the deceased (R. v. Sellars (1978), 1978 2534 (QC CA), 44 C.C.C. (2d) 448, [1978] C.A. 469 (Que. C.A.), at pp. 459-62 C.C.C., affd 1980 166 (SCC), [1980] 1 S.C.R. 527, [1980] S.C.J. No. 9, 52 C.C.C. (2d) 345; Reference re R. v. Coffin, 1956 94 (SCC), [1956] S.C.R. 191, [1956] S.C.J. No. 1, 114 C.C.C. 1, at pp. 14-15 C.C.C. and pp. 36-67 C.C.C.; and R. v. Portillo, 2003 5709 (ON CA), [2003] O.J. No. 3030, 176 C.C.C. (3d) 467 (C.A.), at para. 54).

144The manner in which the trial judge left the appellant's post-offence conduct to the jury, as circumstantial evidence that tended to link him to her unlawful killing, was at once proper and as the defence wished it. That the trial judge could have gone further and given the traditional post- offence conduct instruction seems beyond controversy. But absence of this further instruction can scarcely be characterized as an omission prejudicial to the appellant. After all, the appellant's explanations for the conduct were left to the jury and the claim of an alternative explanation, impaired driving, had nothing to do with any post-offence conduct except the lie about the mystery driver, John.

145I would not give effect to this ground of appeal.

4. The instructions on intoxication

Background

146The trial judge instructed the jury on intoxication. According to the appellant, the instructions given contained two serious flaws: failure to relate the evidence of intoxication to proof of the mental element required to make an unlawful killing murder, and treatment of intoxication as a discrete defence, rather than as a factor relating to the adequacy of the prosecution's proof of the mental element required to make an unlawful killing murder.

147The appellant did not expressly advance the intoxication issue at trial since it was incompatible with the denial of complicity urged by trial counsel on his behalf. That said, the trial judge was required to instruct on the issue because the appellant's statement about alcohol consumption on the night of October 28, 2000, coupled with the toxicological evidence extrapolating back from later blood alcohol concentrations, provided an air of reality to the issue. [page113]

The complaint

148The allegations of error the appellant now advances are threefold. The trial judge denigrated the importance of intoxication by telling the jury that the appellant had not raised the issue and did not rely upon it. The trial judge treated intoxication as a separate defence, rather than simply relating it and the supportive evidence to the essential mental element in murder. And the trial judge undermined the effect of the toxicological evidence of Dr. Langille by characterizing it as unsatisfactory.

Discussion

149The position advanced by defence counsel at trial was a denial of participation in the unlawful killing of the deceased. When the appellant left their apartment, the deceased was alive and well. The couple had not quarrelled. The appellant was going out with some friends.

150Evidence of self-induced intoxication, more particularly the effects of self-induced intoxication on the mental processes of one charged with murder, is relevant for the trier of fact to consider, along with other evidence, in deciding whether an accused had either mental state required by s. 229(a) to make that person's unlawful killing of another murder. The "defence" of intoxication, as it is usually designated, is generally advanced by those who acknowledge an unlawful killing. It is not compatible with a denial of participation: "I am not the man." Defence counsel do not address juries with an argument "I didn't do it, but I was drunk."

151Sometimes, however, as here, the evidence adduced at trial lends an air of reality to an issue not expressly raised by defence counsel and inconsistent with the position advanced by counsel. This air of reality engages the trial judge's obligation to submit the issue to the jury for its determination, the position of defence counsel notwithstanding (R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, [2002] S.C.J. No. 28, 162 C.C.C. (3d) 129, at p. 156 C.C.C.).

152In this case, the parties agreed that there was an air of reality to warrant submission of the issue of intoxication to the jury. But it was important for the appellant that he not be seen as the party raising the intoxication issue, since it was incompatible with his claim of non-involvement.

153In R. v. Peavoy (1997), 1997 3028 (ON CA), 34 O.R. (3d) 620, [1997] O.J. No. 2788, 117 C.C.C. (3d) 226 (C.A.), defence counsel did not want the trial judge to instruct on provocation because counsel was of the view that to do so would undermine the justification of self-defence that was being expressly advanced at trial. The trial [page114] judge left provocation to the jury despite defence counsel's objection. The jury convicted of murder. Weiler J.A. offered this advice to trial judges confronted with the tension between their obligations to instruct on issues about which there is an air of reality and the incompatibility of those issues with the defence advanced by counsel at trial [at paras. 36-37]:

The trial judge charged the jury on provocation. On the appellant's evidence that Mr. George became belligerent, attacked him, knocking him over the table, and then attacked him with a knife while he was attempting to fix it, there was some basis in the evidence for the defence to be left to the jury.

A trial judge is required to leave every defence to the jury for which there is an air of reality on the evidence. In his instructions, it would have been highly preferable for the trial judge to explain to the jury that provocation was not a position being advanced by the defence but one about which he felt he was required to charge them. . . .

154In this case, the trial judge discharged his obligations in connection with intoxication consistent with the advice of Weiler J.A. in Peavoy. He did so in conformity with the request of trial counsel for the appellant at the pre- charge conference, and without compromising the integrity of the position being advanced on behalf of the defence.

155Far from leaving intoxication as a stand-alone "defence", the trial judge began and concluded his instructions on intoxication by describing it as a "factor" for the jury to consider, along with the rest of the evidence, in deciding whether the prosecution had proven that the appellant had either of the two intents required to make an unlawful killing murder. He committed no error in doing so.

156In his canvas of the essential features of the evidence of Dr. Langille, the trial judge conveyed his impression of the manner in which the evidence had been introduced and of some of its shortcomings. The observations the trial judge offered to the jury, as he pointed out, were his own. They were firmly rooted in the evidence given at trial and not expressed in such a way that, either by their nature or their effect, they would compromise the independent decision-making authority of the jury.

157The grounds of appeal relating to the trial judge's treatment of the issue of intoxication fail.

5. Failure to relate evidence to the presumption of innocence

Background

158The final complaint of error in connection with the trial judge's final instructions to the jury is that he failed to relate several items of evidence to the presumption of innocence and the burden of proof. [page115]

The complaint

159The appellant points to several items of evidence, each exculpatory of him, that the trial judge failed specifically to relate to the presumption of innocence and the burden of proof. These items of evidence include, but are not limited to: (i) evidence of intoxication; (ii) evidence of an unidentified fingerprint on the deceased's neck; (iii) evidence of Lee Barnes' identification of someone other than the appellant with the deceased's dog around the time of her death; (iv) evidence of the appellant's limited opportunity to commit the offence; (v) evidence that other men were involved in the deceased's life; (vi) evidence of the presence of long black hairs on the deceased's bed; and (vii) the absence of any forensic evidence linking the appellant to the death of the deceased.

160At the very least, the appellant says, the trial judge should have related the substance of the appellant's statement, a denial of guilt, to the presumption of innocence and the burden of proof.

Discussion

161An assessment of the substance of this complaint requires a brief return to basic principles.

162A judge presiding in a criminal trial is under no obligation to repeat for jurors in final instructions every morsel of evidence adduced at trial. Non-direction on items of evidence is not misdirection. Non-direction on items of evidence only becomes misdirection when a single item of evidence to which reference is not made is the foundation for a defence, justification or excuse advanced by an accused (R. v. Demeter (1975), 1975 685 (ON CA), 10 O.R. (2d) 321, [1975] O.J. No. 2648, 25 C.C.C. (2d) 417 (C.A.), at pp. 340-41 O.R., pp. 436-37 C.C.C., affd on other grounds 1977 25 (SCC), [1978] 1 S.C.R. 538, [1977] S.C.J. No. 60, 34 C.C.C. (2d) 137).

163It is fundamental that a trier of fact should not be instructed to subject individual items of evidence to the criminal standard of proof beyond a reasonable doubt. Determination of [page116] the adequacy of the prosecution's proof is made on the basis of the evidence as a whole, not by subjecting each individual item to a comparison with the ultimate standard of proof (R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, [1988] S.C.J. No. 80, 44 C.C.C. (3d) 193).

164Any complaints of non-direction must also be assessed in the light of the defence position at trial: that the appellant did not kill the deceased. The evidence was uncomplicated, the issues straightforward. The several items of evidence about which the appellant now complains were mentioned during final instructions. Some, at least, were related to the defence position, a denial of participation. The failure of further mention of them was not thought sufficiently important by experienced defence counsel to warrant an objection.

165This ground of appeal fails.

C. The Admissibiilty of Evidence

1. The evidence of Tammy Watson

Background

166The prosecutor called Tammy Watson as a witness at the appellant's preliminary inquiry. She gave evidence inconsistent with a prior statement she had made to investigators about the parking spot where the deceased parked her car. The prosecutor successfully applied under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 to cross-examine her on the subject-matter of her inconsistency.

167Defence counsel, with the benefit of cross-examination at the preliminary inquiry, wanted to adduce evidence from Ms. Watson that she had seen the deceased in the company of young men, other than the appellant, at times not far removed from the deceased's death. Of particular interest to trial counsel was a man with black hair, since black hair, plainly not that of the appellant, was found among the clothing on the deceased's bed.

168The prosecutor indicated that he would not be calling Tammy Watson as a prosecution witness. He advised the trial judge that he did not consider Ms. Watson's evidence essential to the unfolding of relevant events or to the proof of the prosecution's case.

169Defence counsel for the appellant at trial asked the trial judge to direct the prosecutor to call Tammy Watson as a prosecution witness, or in the alternative, to call Ms. Watson as the court's witness so that defence counsel could cross- examine her. The trial judge dismissed both applications. [page117]

The complaint

170The appellant says that the trial judge applied the wrong test in rejecting the application to compel the prosecutor to call Tammy Watson as a witness. This was a tactical decision by the prosecutor about the conduct of the prosecution's case. The decision is subject to judicial review in accordance with the trial judge's inherent jurisdiction to control the process of the court. The trial judge's standard, a requirement that the appellant demonstrate that the failure to call the witness amounted to an abuse of process, imposed an unduly rigid and erroneous standard. The result was the exclusion of evidence supportive of the defence position that someone other than the appellant unlawfully killed the deceased.

Discussion

171Consistent with the prevailing authorities, the trial judge recognized the considerable degree of discretion residing in the prosecutor in connection with the myriad facets of the criminal justice system (R. v. T. (V.), 1992 88 (SCC), [1992] 1 S.C.R. 749, [1992] S.C.J. No. 29, 71 C.C.C. (3d) 32, at pp. 757-64 S.C.R., pp. 38-42 C.C.C.) Well within the reach of this discretion is the authority to decide who shall be witnesses for the prosecution (R. v. Cook, 1997 392 (SCC), [1997] 1 S.C.R. 1113, [1997] S.C.J. No. 22, 114 C.C.C. (3d) 481, at pp. 1122-26 S.C.R., pp. 488-90 C.C.C.).

172As a general rule, we leave to the parties the decision about which witnesses to call in support of their case. The prosecutor is no exception: the witnesses to be called by the prosecution are those essential to the unfolding of the narrative of events (Seneviratne v. R., 1936 396 (UK JCPC), [1936] 3 All E.R. 36 (P.C.), at pp. 48-89; Cook, at pp. 1125-26 S.C.R., p. 490 C.C.C.). The requirement, "essential to the unfolding of the narrative", means no more nor less than that the prosecutor must put forward enough witnesses to adequately establish the essential elements of the offence charged (R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, [1987] S.C.J. No. 51, 36 C.C.C. (3d) 417, at pp. 433-34 C.C.C.). The requirement does not impose upon the prosecutor an obligation to call all witnesses who have relevant testimony (Cook, at pp. 1127-29 S.C.R., p. 492 C.C.C.).

173The complaint that the appellant would lose the right to cross-examine the witness, as well to address the jury last, unless the trial judge ordered the prosecutor to call the witness, or called the witness himself, cannot prevail. Each argument was raised and rejected in similar circumstances in Cook, at pp. 1132-37 S.C.R., pp. 495-98 C.C.C.

174In this case, the prosecutor explained why he would not be calling Tammy Watson to testify at trial. The reasons [page118] advanced related to the substance of the witness' evidence, as well as her inconsistent accounts about the same subject-matter at the preliminary inquiry. Inconsistent accounts are a relevant consideration (Cook, at pp. 1130-32 S.C.R., p. 494 C.C.C.). Nothing of an oblique motive emerges in this case.

175The trial judge was right not to compel the prosecutor to call Tammy Watson as a witness. The circumstances did not reveal any abuse of discretion sufficient to warrant judicial intervention (Cook, at pp. 1140-42 S.C.R., pp. 501-02 C.C.C.).

176In a criminal case, a trial judge has a discretion to call witnesses not called by either party. It is a discretion that is rarely exercised since we generally leave the conduct of the litigation, including the calling of witnesses, to those most familiar with the case: the parties. The reasons advanced here are the same as those offered in support of the application to compel the prosecutor to call Tammy Watson as a witness and they are equally unpersuasive to obtain the alternative remedy.

2. The evidence and demonstration of Norman Sneddon

Background

177Norman Sneddon is a civilian member of the Ontario Provincial Police assigned to the Forensic Identification Service. He is a senior analyst who was qualified at trial as an expert witness in iodine silver plate processing for fingerprints. He gave evidence about a print he found on a silver plate that he had placed on the deceased's body. In the result, for reasons he explained, Sneddon concluded that the print had been placed there by a direct touch by someone who had contaminated the plate. The print did not come from the deceased's body.

178One reason why Sneddon concluded that the print was a contaminant was its "directionality". The direction revealed by the print on the plate surface was inconsistent with the position of a finger on the neck of the deceased who had been manually strangled. Sneddon demonstrated the orientation of the print to the jury to support his conclusion. Despite the absence of any objection to Sneddon's evidence and demonstration at trial, the appellant now asserts prejudicial error in the reception of his evidence about "directionality", inconsistency with strangulation and a demonstration before the jury.

The complaint

179The appellant contends that the reach of Sneddon's evidence exceeded the grasp permitted by his expertise. He was entitled to testify that the appearance of the print was not as [page119] one would expect to find if its source were a print on the deceased's skin, rather than a direct touch on the surface of the plate itself. That said, he was not entitled to say or show anything about body or hand position and its compatibility or otherwise with a hand on the neck or throat of the deceased in a strangulation attempt. And besides, the trial judge should have instructed the jury to disregard that portion of his evidence that exceeded his qualifications.

Discussion

180When an expert witness ventures an opinion that extends beyond an area of expertise in which she or he has been qualified, it falls to opposing counsel to object. The objection may be made at the time that the witness is being qualified by the party who has called him or her, or during the witness' evidence as it appears that the witness' evidentiary reach exceeds or is about to exceed his or her grasp (R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, 85 C.C.C. (3d) 193, at p. 225 C.C.C.). In the absence of timely objection, the evidence given beyond the witness' expertise should form no part of the decision-making process and, in a jury trial, jurors should be told to disregard it (Marquard, at p. 225 C.C.C.).

181On general principle, at least as it seems to me, an examiner of fingerprints should be permitted to offer an opinion about the orientation, said more technically "directionality", of a fingerprint. In some instances, the print characteristics may not be sufficiently defined to permit such an opinion, but where the necessary definition is present in the print itself, no overarching principle should prevent a qualified witness from proffering an opinion. Indeed, the decision in R. v. Rajalinkham, [2005] O.J. No. 2240, 65 W.C.B. (2d) 426 (C.A.), at paras. 5-7 would seem to permit such evidence to be given.

182Courtroom demonstrations, including re-enactments, can be problematic. They may be misleading, as for example where they are not a faithful replication of prior events. Appellate review of their propriety is difficult, sometimes impossible, because of an incomplete or otherwise inadequate record of what was done or shown. It is best left to the trial judge to determine whether the potential gain from the demonstration exceeds any risks inherent in it (R. v. Watson (1996), 1996 4008 (ON CA), 30 O.R. (3d) 161, [1996] O.J. No. 2695, 108 C.C.C. (3d) 310 (C.A.), at pp. 184-85 O.R., p. 336 C.C.C.; and R. v. Howard, 1983 3507 (ON CA), [1983] O.J. No. 13, 3 C.C.C. (3d) 399 (C.A.), at p. 416 C.C.C.).

183The demonstration here was uncomplicated. It did not require any lengthy hypothetical question as a precursor. It [page120] presented no degree of confusion. The trial judge was right to permit it without objection, and did not misstate its relevance in his final instructions.

3. The admissibility of the appellant's videotaped statement

Background

184Police arrested the appellant for the murder of Eva Papousek shortly before 1:00 p.m. on October 29, 2000, immediately advised him of his Charter rights, and then administered the primary and secondary cautions, which informed him of his right to remain silent. The appellant exercised his right to counsel, first speaking to duty counsel and then, at his request, to a criminal lawyer who spoke Polish.

185Investigators transported the appellant by police cruiser from Barrie, where he had been arrested, to Mississauga, where he would be questioned. The interview, which lasted about seven hours, was videotaped in its entirety and transcribed.

186At trial, the appellant challenged the admissibility of the videotaped interview on voluntariness and constitutional grounds. At the conclusion of the voir dire, the trial judge was satisfied that what the appellant said was, at once, voluntary and untainted by any infringement of the right to counsel or the right to silence. He admitted the record of the interview, subject to editing.

The complaint

187The appellant says that the trial judge erred in admitting the videotaped record of interview. The length of the interview, seven hours, as well the appellant's steadfast assertion of the right to silence, commanded close judicial scrutiny of the admissibility issue, indeed provided strong prima facie evidence that the statement was not the product of the appellant's free choice.

188As the appellant sees it, the trial judge failed to appreciate that the appellant's response to some police questions afforded no evidence that the answers given to others (or all) were the product of an informed choice to speak. Continued police questioning in the face of assertions of the right to silence compromises voluntariness and the right to silence itself. Further, police repeatedly told the appellant that, if he didn't provide a statement to them, his silence would be turned against him in later proceedings. This incorrect statement of the law undermined the advice the appellant had received from counsel, and further compromised the appellant's ability to make an informed decision about whether to speak or to remain silent. [page121]

Discussion

[189] In this case, the trial judge concluded that police conduct did not compromise the appellant's right of choice. Investigators repeatedly told the appellant that it was his choice whether to speak with them, and nothing the questioners did or said could take away from that statement. Nowhere did any officer tell the appellant that his (the appellant's) silence could be used against him. Any implicit message to a similar effect did not compromise the appellant's freedom to choose. The common law recognizes an individual's right to remain silent, but the right to remain silent does not include or extend to the right not to be spoken to by state authorities (R. v. Singh, [2007] 3 S.C.R. 405, [2007] S.C.J. No. 48, 2007 SCC 48, at para. 39). Likewise, the right to silence contained within the s. 7 Charter guarantee does not prohibit police from questioning a detainee. Police persuasion, which falls short of denying the detainee the right to choose or of depriving him or her of an operating mind, does not breach the right to silence (Singh, at para. 46; and R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, at p. 184 S.C.R.).

190A lengthy interview, coupled with repeated refusals to answer some questions without first speaking to a lawyer, mandate close judicial scrutiny of the admissibility of the record of interview (R. v. Roy, 2003 4272 (ON CA), [2003] O.J. No. 4252, 180 C.C.C. (3d) 298 (C.A.), at pp. 303-04 C.C.C.). In the end, what must be decided is whether the conduct of the state authorities denied the appellant the right to choose speech or silence, or deprived him of an operating mind (Hebert, at p. 184 S.C.R.; Singh, at para. 46).

[191] In this case, defence counsel expressly disavowed any challenge to admissibility grounded on the absence of an operating mind. The trial judge, in a fact-specific application of the correct legal test, concluded that the appellant freely chose those questions he would answer, and those queries he would deflect. This finding of voluntariness extinguishes the appellant's s. 7 Charter claim as well (Singh, at para. 37).

IV Conclusion

192I would dismiss the appeal.