Her Majesty the Queen v. Badgerow
[Indexed as: R. v. Badgerow]
Ontario Reports Court of Appeal for Ontario Hoy A.C.J.O., Doherty and Zarnett JJ.A. May 8, 2019
146 O.R. (3d) 35 | 2019 ONCA 374
Case Summary
Criminal law — Appeal — New argument on appeal — Trial judge at accused's second and third trials ruling that statements attributed to now-dead witnesses in police occurrence report were not admissible under principled approach to hearsay — Those trials ending in hung juries — Defence counsel at fourth trial not seeking to rebut presumption in s. 653.1 of Criminal Code that evidentiary rulings made at prior aborted trial are binding at retrial — Accused arguing on appeal that evidence from occurrence reports should have been admitted and that he should be permitted to raise issue on appeal since foreclosed from challenging prior ruling at trial due to s. 653.1 — Section 653.1 only creating presumption prior ruling correct, not barring rebutting presumption — Having chosen not to challenge ruling at fourth trial accused not permitted to do so on appeal — Criminal Code, R.S.C. 1985, c. C-46, s. 653.1.
Criminal law — Trial — Charge to jury — Evidence — Hearsay — Accused convicted of first degree murder — Victim sexually assaulted and strangled — Police receiving anonymous 911 call two days later from person with knowledge of details of homicide — Crown leading evidence purporting to trace 911 call to phone booth located about 100 feet from accused's workplace — Bell Telephone employee testifying as to how call tracing system worked and describing mechanical portion of tracing process as 99.9 per cent accurate — Trial judge admitting call tracing evidence under principled approach to hearsay — Trial judge's charge to jury on tracing evidence adequate and not leaving jury with impression that human component of process was 99.9 per cent accurate — Trial judge adequately alerting jury to hearsay dangers associated with tracing evidence.
Criminal law — Trial — Charge to jury — Evidence — Identification — Nine witnesses at trial identifying speaker on 911 call as accused and nine others testifying that speaker was not accused — Trial judge instructing jury to be very cautious about relying on voice identification evidence to support Crown's case and telling them that honest people make mistakes and that apparently convincing witness can be mistaken — Trial judge's instruction on frailties of voice identification evidence adequate — Trial judge not erring in telling jury to use their common sense and experience in assessing voice identification evidence.
Facts
The accused was charged with first degree murder. The victim was sexually assaulted and strangled. Semen found in her vagina and on her jeans came from the accused. The accused was convicted at his first trial. His appeal was allowed and a new trial was ordered. Second and third trials ended in hung juries. At the commencement of the fourth trial, the trial judge entered a stay of proceedings on the basis that holding a fourth trial would constitute an abuse of process. The Court of Appeal allowed the Crown's appeal, holding that the Crown had not had a full opportunity to present its case as evidence relating to tracing the location of a 911 call proffered by the Crown at the first, second and third trials had been improperly excluded. The anonymous 911 call was made two days after the homicide by a person with knowledge of details of the homicide. The call was traced to a phone booth at a steel mill where the accused was employed. The accused worked about 100 feet from the phone booth, and the call was made at a time when he was on his lunch break at work. The call tracing evidence was admitted at the accused's fourth trial under the principled exception to hearsay. The witnesses who were actually involved in the tracing of the 911 call testified as to their actions, and a Bell Canada employee explained how the tracing system worked and described the mechanical portion of the tracing process as 99.9 per cent accurate. The Crown also led evidence from witnesses who identified the accused's voice on a recording of the 911 call and the defence lead evidence from an equal number of witnesses denying that it was his voice. The accused was convicted. He appealed.
Held, the appeal should be dismissed.
The trial judge adequately charged the jury on the call tracing evidence. He was not obliged to review the tracing evidence in detail. Some of the Bell Canada employee's evidence was detailed and technical, but that detail was not essential to an understanding of how the system worked or, more significantly, to the position of the defence with respect to the reliability of the tracing process, which focused on the possibility of human error, not on the technicalities of the mechanical tracing process. The trial judge did not fail to put the defence position with respect to the tracing evidence forward. The charge would not have left the jury with the impression that the human component of the process was 99.9 per cent accurate. The trial judge properly alerted the jury to the hearsay dangers associated with the evidence. There was no doubt that a jury, having heard the evidence and the arguments and the cautions in respect of the reliability of the tracing evidence, would fully appreciate the specific areas in which the defence claimed that cross-examination could have exposed the unreliability of the tracing evidence. In addition, had the trial judge provided more detailed instructions about the tracing evidence he very likely would have linked it to the DNA evidence. Noting that the call was traced to 100 feet from where a person whose DNA was found inside the deceased would not have assisted the defence.
Nine witnesses identified the speaker on the 911 call as the accused, and nine other witnesses testified that the speaker was not the accused. The trial judge provided full instructions on the dangers inherent in voice identification evidence. He told the jury to be very cautious about relying on voice identification evidence to support the Crown's case, that honest people make mistakes and that an apparently convincing witness can be mistaken. That instruction was adequate. The trial judge did not commit a reviewable error in telling the jury to use their common sense and experience in assessing the voice identification evidence.
At the two mistrials, the defence had attempted to lead evidence of police occurrence reports that contained statements that police officers attributed to two witnesses, who had died by the time the second trial began. The trial judge at the second and third trials ruled that the occurrence reports were not admissible for the truth of their contents under the principled approach to hearsay. The accused did not attempt to have the occurrence reports admitted at the fourth trial. He submitted on appeal that s. 653.1 of the Criminal Code foreclosed raising the admissibility of the witness statements at the fourth trial, so that he had to be allowed to raise the admissibility of the evidence on appeal, and that he was entitled to a new trial because the evidence was improperly excluded at the second and third trials. However, s. 653.1 did not preclude the accused from relitigating the evidentiary rulings made at a prior trial. It only created a rebuttable presumption that evidentiary rulings made at a prior aborted trial were binding at the retrial unless the accused satisfied the trial judge that if it would not be in the interests of justice to preclude relitigation of the issue. The accused chose not to contest the admissibility of the statements, and could not now assert that the conviction had to be set aside by virtue of the failure to admit evidence he did not seek to have admitted during his fourth trial.
Judgment
APPEAL by the accused from the conviction entered by P.J. Flynn J. of the Superior Court of Justice, sitting with a jury, on December 1, 2016.
Counsel:
- Ingrid Grant and Jeff Marshman, for appellant
- Jamie Klukach and Davin Garg, for respondent
The judgment of the court was delivered by
I. Overview
1Diane Werendowicz's body was found on June 20, 1981. She had been strangled and sexually assaulted. The appellant was charged with her murder about 17 years later when advances in DNA testing allowed the police to establish that semen found in the victim's vagina and on her jeans came from the appellant.
2The appellant was convicted at his first trial. This court ordered a new trial: R. v. Badgerow, 2008 ONCA 605, 237 C.C.C. (3d) 107 ("Badgerow #1"). A second and third trial ended in "hung" juries. At the commencement of the fourth trial, the trial judge entered a stay of proceedings, holding that a fourth trial would constitute an abuse of process. The Crown appealed. In 2014, this court held that certain evidence proffered by the Crown had been improperly excluded. The court concluded that the Crown had not had a full opportunity to present its case, set aside the stay and ordered a fourth trial: R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 399 ("Badgerow #2"). The appellant was convicted of first degree murder at that trial. He appeals.
3I would dismiss the appeal.
II. The Evidence
4Most of the evidence led at the fourth trial had been led at the earlier trials and is summarized in the reasons of Strathy J.A. (as he then was) in Badgerow #2. A brief summary of the evidence will suffice for present purposes.
5On June 20, 1981, Ms. Werendowicz went to a bar with some friends. She left alone shortly before midnight intending to walk the short distance home. Her body was found in a nearby ravine lying in a creek, partly covered with a tire. Ms. Werendowicz had been sexually assaulted and strangled. She died from a combination of strangulation and drowning. Her jeans were undone and her underwear was found nearby. Forensic investigators found semen in Ms. Werendowicz's perianal area and vagina and on her jeans.
6The police obtained a sample of the appellant's DNA in 1998. His DNA matched the DNA taken from the semen found in the victim. At trial, the defence admitted that the appellant was the source of the semen.
7Two days after the homicide in June 1981, someone anonymously made a 911 call to the Hamilton Police Department. The caller claimed to have information about the murder. Among other things, he indicated that the victim had been raped, strangled with the strap of her purse and left face down in a "crick". All of these details were accurate. The Crown asserted that the caller's knowledge of the facts showed that he was involved in the homicide.
8The Crown led evidence purporting to trace the 911 call. That evidence placed the call as having been made from a phone booth just outside of Gate 6 at Dofasco. The appellant worked in the hot mill about 100 feet from the phone booth. The call was made at a time when the appellant was at work, and on his lunch break.
9The tracing evidence had been excluded at the earlier trials. This court held that it should have been admitted and directed a new trial on that ground. The jury at the fourth trial was the first jury to hear this evidence.
10As Strathy J.A. observed in Badgerow #2, at para. 175, the evidence concerning the tracing of the 911 call and the DNA evidence had to be considered in combination. He described the effect of that evidence, at para. 175:
The 911 call resulted in the dispatch of police to a location within 100 feet of the workplace of a man whose DNA was later discovered in and on the victim. That man subsequently admitted to intercourse with the victim on the night she was killed. Independent triangulation of the DNA evidence and the 911-trace evidence located someone with unique and intimate knowledge of the victim on the night she died. This was powerful corroboration of the reliability of the evidence [the tracing evidence], because the possibility of coincidence is highly unlikely.
11In addition to the tracing evidence and the DNA evidence, the Crown led evidence from several witnesses who identified the appellant's voice on a recording of the 911 call.
12The appellant testified. He indicated that he had met Ms. Werendowicz in the parking lot of the bar after she left the bar. They had no prior connection with each other. After smoking some marijuana, they had consensual sexual intercourse in the back of the appellant's truck. Ms. Werendowicz then went on her way, presumably headed for home. The defence argued that Ms. Werendowicz must have been attacked, sexually assaulted and murdered by an unknown assailant a very short time after she had consensual sexual intercourse with the appellant, a complete stranger.
13The defence also led evidence pointing to a person named Brian Miller as the potential perpetrator of the homicide. Mr. Miller, a sexual predator, lived in Ms. Werendowicz's apartment building. There was other evidence potentially connecting him to the homicide. I need not detail that evidence. The trial judge gave the jury a "third party suspect" instruction. There is no objection to that part of the charge.
14The defence also challenged the voice identification evidence. Nine witnesses testified that the voice on the 911 call was not the appellant. Two witnesses identified the caller as Brian Miller.
III. The Grounds of Appeal
15Most of the grounds of appeal arise out of the trial judge's instructions to the jury. In oral argument, counsel focused on the instructions relating to the evidence tracing the 911 call. In these reasons, I will also focus on the grounds of appeal arising out of those instructions. I will refer briefly to the other grounds of appeal.
16Before addressing the specific arguments raised in respect of the instructions on the tracing evidence, I will briefly reiterate the approach that appeal courts take in assessing the adequacy of jury instructions.
17Appellate review of the adequacy of a jury instruction requires a functional assessment. The court asks whether the charge, read as a whole in the context of the specific case, properly equipped the jury to decide the case based on the application of the applicable legal principles to the evidence: see R. v. Calnen, 2019 SCC 6, at paras. 5-9.
18The context of the case includes the evidence, the positions of the parties, the closing arguments, the submissions of counsel in advance of the charge and any objections taken to the charge. In this case, counsel made detailed submissions in response to a draft charge prepared by the trial judge. The trial judge made modifications to the charge in response to those comments. The trial judge's modifications included the insertion of certain instructions that tracked very closely a draft prepared by defence counsel. Those instructions spoke directly to the manner in which the jury should address the reliability of the tracing evidence.
19A proper functional assessment of the adequacy of a jury instruction, particularly one pertaining to how the jury should approach and assess certain evidence, must give significant weight to the position advanced by counsel at trial. To the extent that the instruction tracks that position, it is likely to properly serve its functional purpose: see R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 97.
20Jury instructions are not inadequate or unfair because they do not include everything that could properly have been said about certain evidence or certain arguments advanced in respect of that evidence. It would be a rare charge that could not, upon critical review in the unhurried calm of the appeal court, be improved or clarified. The jury instruction must be legally correct and fair, not perfect: see Calnen, at para. 9; R. v. Huard, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 52; R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 13.
21Nor is the trial judge required to marshal the evidence and arguments for either side as counsel might do. Instead, the trial judge must ensure that the jury appreciates the respective positions of the parties having regard to the evidence and the applicable legal principles. In doing so, the trial judge need not repeat, much less try to improve upon the way counsel argued the case to the jury in their closing submissions.
A. The Instructions on the Tracing Evidence
(i) The Evidence
22The evidence relied on by the Crown at trial to trace the 911 call to the phone booth 100 feet from where the appellant worked was described to some extent in Badgerow #2, at paras. 28-51. The evidence fell into two broad categories. There was evidence from persons who were actually involved in the effort to trace this 911 call (e.g., Constable Davis). There was also evidence from persons who had no involvement in the tracing of this particular call, but who were familiar with the tracing system in place at the relevant time (e.g., Mr. Johnston). These witnesses described how the system was designed to allow the police, with the assistance of Bell employees, to quickly trace a 911 call to a specific location. The ability to do so accurately was, in some situations, a matter of life and death.
23The witnesses involved in the tracing of the 911 call testified that when the 911 call was received by the police, they immediately "locked" the line, thereby keeping the line open even if the caller hung up. There was evidence that when this 911 call was received, the police locked the line and requested a trace by Bell. About ten minutes later, a Bell Canada telephone tester called the police communications centre. Three minutes later, the police called the Dofasco security office with a request to secure the phone booth outside of Gate 6 at Dofasco. A few minutes later, the police arrived at the phone booth. There was no one on the phone.
24Many of the police personnel and Bell Canada employees involved in the tracing of the 911 call were either unknown or unavailable to testify at trial. There were no records made of some of the relevant events and other records were no longer available. For example, Mr. Johnston testified that certain tests could be done to verify the correctness of the trace as it was being made. There was no evidence whether or not those tests were done in this case.
25Mr. Johnston, the Bell Canada employee who explained how the tracing system worked, described a two-part system. First, the Bell employees determined the phone number for the line that had made the 911 call and was being held open by the police. Second, Bell traced their records to connect that telephone number to a specific location.
26In his examination-in-chief, Mr. Johnston described the 911 tracing system as 99.9 per cent accurate. In cross-examination, he acknowledged that his estimate referred to the mechanical portion of the tracing process and not to the overall accuracy of that process. Overall accuracy had to take into account the possibility of human error at various stages of the process, especially the second stage.
27In Badgerow #2, this court characterized the tracing evidence as an implied assertion from an unidentified person at Bell Canada that the call had been traced to the payphone at Gate 6 outside of Dofasco: Badgerow #2, at para. 94. After a careful analysis, the court held that the implied assertion was admissible under the principled approach to hearsay evidence: Badgerow #2, at paras. 96-185. The trial judge admitted the evidence on that basis.
(ii) The Appellant's Arguments
28The appellant submits that this court's recognition of the tracing evidence as hearsay underscores the need for a full and careful instruction to the jury on how it should assess that evidence. He contends that it was essential that the trial judge clearly instruct the jury on the content of the tracing evidence, the risks associated with relying on that evidence, the position of the defence, and at least some of the specific evidence which tended to undermine the reliability of the tracing evidence. I would organize the submissions into three categories.
29First, the appellant argues that the trial judge failed to adequately review the tracing evidence. The appellant maintains that the evidence was technical and complicated. By failing to adequately review the evidence, the trial judge left the misleading impression that the evidence was much more straightforward than it was. In addition, to the extent that the trial judge did review some of the tracing evidence, he made material factual errors.
30Second, the trial judge failed to properly put the position of the defence with respect to the reliability of the tracing evidence to the jury and failed to adequately relate the evidence to that position. The appellant contends that the defence focused very much on the human and not the mechanical component of the tracing process. The defence maintained that the unavailability at trial of almost everyone involved in the tracing process, along with almost all of the records, made it impossible for the jury to properly probe the reliability of the tracing process. The appellant argues that instead of putting the defence properly, the trial judge repeatedly treated Mr. Johnston's reference to the process as "ninety-nine-point-nine percent accurate" as referable to the tracing process as a whole. In doing so, the appellant submits the trial judge effectively ignored the thrust of the defence attack on the reliability of the tracing evidence.
31Third, the appellant argues that while the trial judge made generic comments about reliability concerns associated with hearsay evidence, he did not relate those concerns to specific parts of the evidence adduced in this case. The appellant submits that the trial judge never came to grips with the reliability concerns arising from the hearsay nature of this evidence that were specific to this case.
(iii) Analysis
(a) The Adequacy of the Review of the Evidence
32The appellant is correct that the trial judge did not review the tracing evidence in detail. Nor was he obliged to do so. Some of Mr. Johnston's evidence describing the tracing system was detailed and technical. However, that detail was not essential to an understanding of how the system worked or, more significantly, the position of the defence with respect to the reliability of the tracing process.
33The defence focused on the possibility of human error, not on the technicalities of the mechanical tracing process. The defence argued that because significant parts of the process depended upon whether individuals properly followed procedures and accurately recorded and reported data, the accuracy of the system could not be properly assessed, absent both evidence from those individuals and the relevant records. The jury did not need a detailed explanation of the tracing process to properly understand the thrust of the "human error" arguments advanced on behalf of the appellant.
34The trial judge could have gone into the details of the evidence. Some trial judges would have done so. In those cases, this court might be hearing an argument about the confusion created by an unnecessarily detailed summary of evidence that had little to do with the defence challenge to the reliability of the evidence. The trial judge's decision to give a general but even-handed summary of the tracing evidence did not amount to an error in law. Nor did it render the instructions unfair.
35The specific factual inaccuracies alleged by the appellant are more in the nature of incomplete descriptions of the evidence. In my view, none are significant and none would have misled the jury on the substance of the tracing evidence or the defence position in respect of that evidence.
(b) The Review of the Defence Position
36I must also reject the argument that the trial judge failed to adequately put the defence position with respect to the tracing evidence forward and instead wrongly suggested to the jury that the evidence established that the process was almost always accurate. While the appellant is correct that the trial judge made two references to Mr. Johnston's evidence that the tracing process was 99.9 per cent accurate, the jury could not, in the context of this case, have understood the trial judge to be referring to both the mechanical and human components of the tracing process. It was made clear in cross-examination that Mr. Johnston could not speak to the accuracy of the human component of the process. In closing submissions, counsel made the same point in referencing Mr. Johnston's evidence:
The tracing procedure falls into two basic categories: mechanical steps and human steps. The mechanical steps are indeed highly reliable, and that's what Mr. Johnston meant when he talked about the tracing being ninety-nine-point-nine percent accurate. I asked him. I said, "You're talking about what the machines do." He said, "That's right." "You're not talking about what the humans do." He said, "No."
37The trial judge also distinguished between the technical and mechanical components of the tracing process and the human elements in that process in his instructions to the jury. For example, after referring to Mr. Johnston's evidence, the trial judge said:
You must remember that Mr. Johnston was giving his opinion on the technical aspects of the operation of the 9-1-1 system in place in Hamilton in June 1981, including the tracing of the origin of this call.
38The trial judge went on to remind the jury that there were "a lot of human links in the tracing chain that weren't before us", and that the absence of evidence from those "human links" rendered the evidence "less reliable" than it would have been had those persons been available.
39The appellant next argues that the trial judge's reference to the many people involved in the tracing of the 911 call who were not available as witnesses did not properly alert the jury to the risk of human error in the tracing process. I cannot accept this argument. I have no doubt the jury would understand that the witnesses' absence was significant because it prevented defence counsel from exploring the possibility of human error with the people actually involved in the tracing.
40The appellant also refers to specific parts of the evidence which he contends the trial judge had to refer to in his instructions and relate to the position of the defence. Counsel referred to these parts of the evidence in his closing argument. He did not ask the trial judge to specifically refer to the evidence in his instructions and did not suggest that any of this evidence was crucial to an understanding of the defence position.
41The instructions equipped the jury with the ability to relate the evidence to the issues. They had heard counsel's submissions about the significance of certain parts of the evidence. It was for the jury to determine whether those arguments should be accepted. This was not a case in which the trial judge selectively referred to evidence relating to the various issues in a way that could be said to have pointed the jury in a particular direction and rendered the trial unfair. By and large, the trial judge left it to the lawyers to argue their respective cases and marshal the evidence.
42I think it is significant, as argued by Crown counsel on appeal, that the trial judge chose not to connect the reliability of the tracing evidence to the uncontradicted evidence that the appellant's DNA was found in the victim. As observed in Badgerow #2, the DNA evidence potentially provided powerful circumstantial evidence of the tracing evidence's reliability. It will be recalled that the tracing evidence placed the call as originating from a phone booth located 100 feet from the workplace of the person whose DNA was found in the victim: Badgerow #2, at para. 175. Had the trial judge chosen to go down the road of providing a detailed recitation of the evidence tending to confirm or contradict the tracing evidence, the trial judge would have no doubt referred to the DNA evidence. That reference could only have hurt the defence.
(c) The Hearsay Dangers
43This submission comes down to a claim that the trial judge did not properly alert the jury to the hearsay dangers associated with the specific evidence led in this case. The appellant maintains that his failure to do so left the jury unable to properly consider the reliability of the tracing evidence.
44To properly assess this submission, one must appreciate how the jury instructions came to be worded as they were. The trial judge provided counsel with a draft jury charge. Counsel for the appellant took strong exception, expressed over some 17 pages of transcript, to the proposed instructions on the tracing evidence. He objected to certain specific comments, but also argued that the overall thrust of the instructions missed the position of the defence and failed to address the concerns relating to the reliability of the tracing evidence. After hearing counsel's objections, the trial judge asked defence counsel to draft a "caution" in respect of the hearsay evidence for possible inclusion in the final instructions.
45Defence counsel provided the trial judge with a draft "caution". Most of that draft found its way into the jury instructions. Some of it was repeated verbatim, including the instruction that the absence of an opportunity to cross-examine the individuals involved in the tracing rendered the evidence "less reliable". This was the key feature of the defence attack on the reliability of the evidence.
46The defence did not object to the revised version of the instructions that the trial judge gave to the jury in respect of the tracing evidence. Nor did counsel suggest that there was any substantive difference between his draft "caution" and the caution ultimately delivered by the trial judge.
47In my view, the trial judge, by repeating parts of counsel's proposed draft and paraphrasing other parts, brought home to the jury the direct connection between the inability to cross-examine persons involved in the tracing, or to examine records relevant to the tracing, and the reliability of the claim that the call could be traced to the phone booth outside of Gate 6 at Dofasco. The trial judge said:
But, at the same time, because most of the individuals involved in the trace did not testify, and because none of the records created by Bell employees or police were available, you must realize your own disadvantage in assessing the reliability of the steps taken and the results obtained.
None of this evidence has been tested by cross-examination and the absence of any opportunity to cross-examine the individuals involved in tracing this 9-1-1 call renders the trace evidence less reliable than would be the case, had cross-examination occurred.
48Counsel on appeal describes the above-quoted instructions as a "generic legal warning". She submits that the jury should have been pointed to the specific issues in respect of which cross-examination would have been important. For example, had the witnesses been available, they could have been cross-examined about whether they followed the various procedures available for testing the accuracy of a purported trace.
49I have no doubt that the jury, having heard the evidence and the arguments and the cautions in respect of the reliability of the tracing evidence, would fully appreciate the specific areas in which the defence claimed that cross-examination could have exposed the unreliability of the tracing evidence. The trial judge's obligation to alert the jury to the reliability concerns associated with the tracing evidence did not go so far as to require him to provide specific examples of the areas of cross-examination that may have proved fruitful for the defence. He could have given that kind of instruction, but his failure to do so does not, in my view, render the instructions wrong in law or otherwise inadequate or unfair.
B. The Other Grounds of Appeal
(i) The Admissibility of the Statement "Gate 6, Terry Speaking"
50As part of the tracing evidence, the Crown led evidence that after the police had received certain information from the Bell personnel concerning the results of their tracing, Edward Lum, a police cadet, called Dofasco and asked the operator to connect him with security at Gate 6. A few seconds later, a woman came on the line and said, "Gate 6, Terry speaking". She confirmed that there was a payphone right behind Gate 6. Cadet Lum asked her to secure the phone until the police arrived.
51Cadet Lum's evidence was part and parcel of the tracing evidence that had been ruled admissible by the Court of Appeal. The defence, however, argued that the phrase "Gate 6, Terry speaking" should be excluded from evidence as it may be misconstrued by the jury as evidence that "Terry" was located in the guard shack immediately beside the payphone. For reasons I need not detail, the defence argued that if the jury were to find that "Terry" was in the guard shack, as opposed to some other locale near Gate 6, this finding could hurt the defence argument that the 911 call did not come from the payphone beside the guard shack.
52I agree with the appellant that the phrase "Gate 6, Terry speaking" could not be taken as evidence that "Terry" was speaking from the guard shack. She may well have been speaking from one of many locations in or around Gate 6, some of which were inside and some of which were outside.
53The potential hearsay use of the phrase "Gate 6, Terry speaking" as evidence that the speaker was in the guard shack was a minor evidentiary point in a lengthy trial. The trial judge made no reference one way or the other to the comment as evidence of "Terry's" specific location. I think his failure to specifically caution the jury against using that comment as evidence that "Terry" was in the guard shack, could not, in the overall context of the evidence, have prejudiced the appellant.
(ii) The Voice Identification Evidence Instructions
54Nine witnesses identified the speaker on the 911 call as the appellant. Nine different witnesses said the speaker was not the appellant. Two of those nine identified the speaker as Mr. Miller. Given these diametrically opposed opinions, the dangers inherent in relying on voice identification evidence to identify the speaker as the appellant must have been self-evident to the jury.
55The trial judge provided full instructions in respect of the dangers inherent in voice identification evidence. He told the jury to be "very cautious" about relying on voice identification evidence to support the Crown's case. He further told the jury that "honest people do make mistakes", and that "an apparently convincing witness can be mistaken". Finally, he reminded the jury that from their own experience, they no doubt understood that one could easily be wrong about a voice identification. The trial judge directly connected the risk of mistaken voice identification to the possibility of a miscarriage of justice, instructing the jury, "miscarriages of justice can occur on the basis of mistaken voice identification". Any jury hearing these instructions would understand that it must proceed very cautiously before relying on voice identification evidence to support the Crown's case.
56The appellant submits that the instructions were inadequate because the judge did not tell the jury that the certainty with which a witness expressed an opinion about voice identification could not be taken as any indication of the accuracy of that belief. In other words, the jury should have been told that there was no correlation between a witness' certainty and the accuracy of that witness' voice identification.
57I am fully satisfied that the jury would understand from the instructions that a witness's degree of certainty in his or her voice identification is not necessarily indicative of the accuracy of that identification. I see no material difference between an instruction that a witness's confidence does not necessarily equate with accuracy and an instruction that confidence should not be taken as a reliable indicator of accuracy. Both versions of the instruction make the same point. The thrust of that instruction is made all the more clear by the trial judge's instructions that there were very real possibilities of errors relating to voice identification, even when the identification was given by honest and credible witnesses.
58The appellant next argues that the trial judge committed a reversible error in telling the jury to "use your common sense and experience" in assessing the voice identification evidence. The appellant argues that common sense has no role to play in voice identification evidence because contrary to one's "common sense", mistakes about voice identification, even by witnesses who are honest and confident about their evidence, are quite common.
59I would be reluctant to hold that it is a reversible error to tell a jury to use its "common sense." In any event, the trial judge's reference to "common sense and experience" was a direct reference to his earlier instructions in which he referred to the common experience of the jurors and others that honest and confident voice identifications often prove to be wrong. By urging the jurors to use their common experience and common sense, the trial judge was reinforcing his instructions that the evidence of voice identification should be approached cautiously.
60Finally, the appellant submits that the trial judge erred in reviewing the voice identification evidence in detail. He submits that by reviewing the evidence, which in some instances included statements by the witnesses about the degree of confidence they had in their identification, the trial judge "encouraged" the jury to consider the witnesses' own estimations of their certainty as evidence of the reliability of their identification.
61I would make no connection between the trial judge's review of the substance of the evidence given by the various voice identification witnesses and the extent to which a witness' degree of certainty was relevant to the reliability of that witness' evidence. The review of the evidence, including the evidence supporting the defence, was even-handed. Nothing said by the trial judge about the substance of the evidence in any way undermined his instructions that the jury must take a very cautious approach to the voice identification evidence relied on by the Crown.
62I see no error in the voice identification instructions.
(iii) The Instructions on the Wedding Video
63The Crown cross-examined several defence voice identification witnesses about a video of the appellant making a speech at his 1982 wedding. The admissibility of the evidence was not challenged, although the defence argued that the Crown should not be allowed to invite the jury to compare the voice on the video with the voice on the 911 call. The defence submitted that the video had not been adequately authenticated. At the same time, however, the defence argued that the jury could listen to the video for the purpose of supporting the evidence of some defence witnesses that the voice on the video was different from the voice on the 911 call.
64The trial judge told the jury that they should be "very cautious about using the audio on this video to convict Robert Badgerow". The trial judge pointed out that there was no evidence that the video accurately depicted the appellant's voice as it was in 1982. Having cautioned the jury, but only against using the evidence to convict the appellant, the trial judge went on to tell the jury that they could compare the voice on the 911 call with the voice in the wedding video. The defence had argued to the jury that a comparison of the two supported those witnesses who said that it was not the appellant making the 911 call.
65Mr. Badgerow was sufficiently identified as the speaker in the 1982 video to permit comparison of his voice in the video with the voice on the 911 call. There were unknown factors that made the comparison potentially of little value. The trial judge adequately cautioned the jury against using the video evidence to incriminate the appellant. At the same time, he left the evidence with the jury as something it could use, if it saw fit, to assist in determining whether the appellant was the 911 caller. The instructions were appropriate.
(iv) The Other Alleged Errors in the Jury Instructions
66The appellant's factum sets out four additional alleged errors in the instructions. He submits that, considered in combination, they render the instructions "inaccurate and unbalanced". Two relate to the trial judge's treatment of the evidence of two witnesses, a toxicologist and the former boyfriend of Ms. Werendowicz. Two focus on comments made by the trial judge, which the appellant alleges amounted to unfair and unwarranted expressions of opinion by the trial judge on matters that were for the jury to decide.
67I would reject these arguments. The boyfriend's evidence was of little moment. The review of that evidence was deservedly cursory. The review of the toxicologist's evidence was accurate and balanced.
68One of the two comments made by the trial judge concerned the strength of the inference that whoever killed Ms. Werendowicz had the required intention for murder under s. 229(a) of the Criminal Code, R.S.C. 1985, c. C-46. I think the trial judge's observation that the necessary intent seemed an obvious inference from the surrounding circumstances was fully warranted. Ms. Werendowicz had been sexually assaulted, strangled and left lying face down in a creek. An effort had been made to hide the body. In those circumstances, there is little, if any, air of reality to the suggestion that whoever killed Ms. Werendowicz did not have the mens rea for murder.
69The trial judge's second comment concerned the possibility that the 911 caller, despite his apparent knowledge of detailed circumstances surrounding the homicide, may not have been involved in the homicide. The trial judge told the jury to ask themselves whether "an uninvolved person" would "know enough to say" the things that were said by the caller. The rhetorical question posed by the trial judge does not suggest an answer. The contents of the 911 call suggested the answer. The trial judge's instructions simply told the jury to focus on what was said in the 911 call when deciding what inference could be drawn about the connection of the speaker to the homicide.
(v) The Admissibility of the Bittorf Statements
70At the two mistrials, the defence had attempted to lead evidence of police occurrence reports that purportedly contained statements made by Mr. and Mrs. Bittorf to police officers. The police officers spoke to the Bittorfs when canvassing residents of the area near the ravine where Ms. Werendowicz's body was found. According to the occurrence reports, the Bittorfs had reported hearing screams coming from the area where the body was found. The defence maintained that the Bittorfs placed the screams at a time that was considerably later than the Crown's theory of the time of death, but consistent with the defence position.
71The Bittorfs were deceased by the time the second trial began. The defence argued that the occurrence reports were admissible for the truth of their contents under the principled approach to hearsay. The trial judge at the two earlier proceedings -- the second and third trials -- rejected this argument and ruled the evidence inadmissible.
72At this trial, the defence did not seek to have the occurrence reports admitted into evidence. There was nothing said about the admissibility of the occurrence reports at this trial.
73On appeal, counsel argues that the appellant is entitled to a new trial because the evidence of the statements allegedly made by the Bittorfs to the police was improperly excluded from evidence at the earlier trials. Counsel contends that the failure to seek the admission of the evidence on this trial does not prevent the appellant from raising the admissibility of the evidence on this appeal. Counsel submits that as neither the law nor the circumstances relevant to the admissibility of the evidence had changed materially since the earlier rulings, s. 653.1 of the Criminal Code effectively precluded the appellant from raising the admissibility of the statements at this trial. Counsel argues that as s. 653.1 foreclosed raising the admissibility of the statements at this trial, the appellant must be entitled to raise the admissibility of the evidence on appeal.
74Section 653.1 reads in part:
653.1 In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial[.]
75Section 653.1 does not prevent relitigation of evidentiary rulings made at a prior trial. Instead, it creates a "presumption" that evidentiary rulings made at a prior aborted trial are binding at the retrial, unless the trial judge is satisfied that "it would not be in the interests of justice" to preclude relitigation of the issue. Section 653.1 gives the trial judge a discretion. He or she must exercise that discretion, having regard to all of the circumstances, including whether there have been any material changes in the circumstances relevant to the admissibility of the evidence: see R. v. Victoria, 2018 ONCA 69, 359 C.C.C. (3d) 179.
76Section 653.1 did not prevent the appellant from raising the admissibility of the Bittorfs' statements at this trial, just as he had on two previous occasions. The appellant chose not to contest the admissibility of the statements. He cannot now assert that the conviction must be set aside by virtue of the failure to admit evidence he never sought admitted.
77In holding that the appellant could have sought the admissibility of the statements allegedly made by the Bittorfs at this trial, I acknowledge that the appellant may have had a tough row to hoe. Had he raised the issue, he would have been met squarely with the "presumption" in s. 653.1. Unless counsel could point to some material change relevant to the admissibility of the evidence, the trial judge may well have exercised his discretion against permitting relitigation of the issue.
78In that circumstance, it would have been appropriate for counsel to seek the admissibility of the statements, acknowledge the presumption in s. 653.1, and the difficulty in overcoming that presumption. Had counsel followed that course, the admissibility of the evidence at this trial would have been in issue and counsel would have preserved the right to raise the issue on appeal. He could have challenged both the exercise of the trial judge's discretion under s. 653.1 and the ultimate admissibility of the evidence.
79Experienced counsel at trial, no doubt for good reasons, chose not to make the admissibility of the Bittorfs' alleged statements an issue in this trial. Counsel cannot raise the issue for the first time on appeal. I need not address the merits of the admissibility argument.
IV. Conclusion
80I would dismiss the appeal.
Appeal dismissed.
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