Regina v. Tombran [Indexed as: R. v. Tombran]

47 O.R. (3d) 182

[2000] O.J. No. 273

No. C28995

Court of Appeal for Ontario

Carthy, Charron and Sharpe JJ.A.

February 9, 2000

*Application for leave to appeal to the Supreme Court of Canada was dismissed November 30, 2000 (L'Heureux-Dubé, Bastarache and LeBel JJ.). S.C.C. File No. 27969. S.C.C. Bulletin, 2000, p. 2173.

Criminal law -- Charge to jury -- Evidence -- Circumstantial evidence -- Accused charged with murder and case entirely circumstantial -- Trial judge not required to explain to jury difference between direct and circumstantial evidence -- Jury properly instructed regarding reasonable doubt -- Trial judge telling jury what inferences they were asked to draw from evidence and that they must acquit if they had reasonable doubt arising from any inferences they were asked to draw -- Jury instructed that they could only convict if accused's guilt was only reasonable inference from evidence -- Appeal from conviction dismissed.

Criminal law -- Trial -- Charge to jury -- Reasonable doubt -- Trial judge instructing jury pre-Lifchus that phrase "reasonable doubt" be given "ordinary and natural meaning" -- Trial judge failing to use words later mandated in Lifchus -- Instructions about reasonable doubt sufficient as jury could not have been left in any doubt that burden was on Crown to prove each element of offence beyond reasonable doubt.

Criminal law -- Trial -- Conduct of Crown -- Crown should not present speculative propositions unsupported by evidence -- Conduct of Crown not sufficiently prejudicial to warrant new trial.

The accused was charged with murder. The Crown's case was entirely circumstantial. The victim and the accused had taken out joint policies of life insurance for $400,000 each. The accused was the sole beneficiary of the victim's policy. The victim was strangled. Her body had several stab wounds, including mutilation of her vagina. Semen was found in her vagina. The accused initially denied that he and the victim had a sexual relationship. The accused's DNA matched that of the semen found in the victim's vagina. The accused then admitted a sexual relationship with the victim and said that he had had intercourse with her in his car on the morning of her death. The victim's sister testified that on the day of her death the victim told her that she had loaned money to the accused, that she was having difficulty getting it back, that she was to go to the accused's store on the day of her death to pick up the money and that she was afraid to do so. The sister had not told the police about this conversation until nine weeks before the commencement of the trial. The accused was convicted of second degree murder and was sentenced to life imprisonment with no eligibility of parole for 16 years. The accused appealed.

Held, the appeal should be dismissed.

The trial judge did not err in failing to explain to the jury the difference between direct and circumstantial evidence. The rule in Hodge's Case is not an inexorable rule of law. Trial judges are not required to deliver abstract lectures to juries on the differences between direct and circumstantial evidence. They are not required to adopt any specific language or wording, provided the charge conveys to the jury in a clear fashion the central point, namely, the necessity to find the guilt of the accused beyond a reasonable doubt. In this case, the trial judge charged the jury in accordance with the traditional language of proof beyond a reasonable doubt. He carefully charged the jury on the inferences they were being asked to draw from the evidence and instructed them to acquit the accused if any of those inferences gave rise to a reasonable doubt. He clearly instructed the jury that in order to convict, they had to be satisfied beyond a reasonable doubt that the guilt of the accused was the only reasonable inference to be drawn from the facts.

The trial took place before the Supreme Court of Canada handed down its decision in R. v. Lifchus. In charging the jury on reasonable doubt, the trial judge stated that he used the words in their "ordinary natural meaning". In Lifchus, the Supreme Court of Canada disapproved of explaining reasonable doubt in those terms. However, while trial judges are now expected to follow the Lifchus model charge, failure to do so in cases tried before Lifchus does not constitute reversible error if the charge conveys to the jury the special meaning attached to reasonable doubt. Failure to direct the jury on the difference between the civil balance of probability standard and the criminal standard of proof beyond a reasonable doubt is not necessarily fatal. In this case, in the context of the charge as a whole, the jury could not have been left with any doubt that the burden was on the Crown to prove every element of the offence beyond a reasonable doubt rather than on a mere balance of probabilities. The jury was given an adequate explanation of the meaning of proof beyond a reasonable doubt.

The Crown put forth purely speculative suggestions to the accused in cross-examination and to the jury in his closing address. It is wrong for the Crown to present speculative propositions, unsupported by the evidence, in an attempt to explain away gaps in the Crown's case or inconsistencies in the evidence. There was some evidence, albeit weak, to support some of the Crown's suggestions. The assertion by the Crown that the accused borrowed a car to dispose of the deceased's body had no evidentiary foundation. However, the Crown did not pursue this in his address to the jury. Considering the entire trial, the conduct of Crown counsel in this case was not sufficiently prejudicial to warrant a new trial.

The trial judge clearly instructed the jury that they had to assess the victim's sister's credibility in light of her admitted bias against the accused and in light of her failure to tell the police about the victim's alleged statements until 19 months after the victim's death. That warning was adequate.

APPEAL from a conviction for second degree murder.

R. v. Cooper, 1977 CanLII 11 (SCC), [1978] 1 S.C.R. 860, 74 D.L.R. (3d) 731, 14 N.R. 181, 34 C.C.C. (2d) 18, 37 C.R.N.S. 1; R. v. Fleet (1997), 1997 CanLII 867 (ON CA), 36 O.R. (3d) 542, 120 C.C.C. (3d) 457 (C.A.), apld R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, 157 D.L.R. (4th) 603, 224 N.R. 120, 123 C.C.C. (3d) 225, 15 C.R. (5th) 1; R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, 118 Man. R. (2d) 218, 150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218, [1997] 10 W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1; R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620, 117 C.C.C. (3d) 226, 9 C.R. (5th) 83 (C.A.), consd Other cases referred to R. v. A. (S.) (1992), 1992 CanLII 7517 (ON CA), 11 O.R. (3d) 16, 76 C.C.C. (3d) 522, 17 C.R. (4th) 233 (C.A.); R. v. Arsenault, [1997] O.J. No. 3977 (C.A.); R. v. Atkinson, [1997] O.J. No. 4788 (C.A.); R. v. Barnes (1999), 1999 CanLII 1355 (ON CA), 117 O.A.C. 371, 39 M.V.R. (3d) 256 (C.A.); R. v. Boyer, [1998] O.J. No. 1501 (C.A.); R. v. John, 1970 CanLII 199 (SCC), [1971] S.C.R. 781, 15 D.L.R. (3d) 692, [1971] 3 W.W.R. 401, 2 C.C.C. (2d) 157, 15 C.R.N.S. 257; R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, 41 O.A.C. 353, 113 N.R. 53, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1; R. v. Mitchell, 1964 CanLII 42 (SCC), [1964] S.C.R. 471, [1965] 1 C.C.C. 155; R. v. Nugent (1995), 1995 CanLII 8927 (ON CA), 24 O.R. (3d) 295, 100 C.C.C. (3d) 89 (C.A.); R. v. Russell (1998), 1998 ABCA 184, 62 Alta. L.R. (3d) 87, [1999] 1 W.W.R. 684 (C.A.); R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302; R. v. Walker (1994), 1994 CanLII 8725 (ON CA), 18 O.R. (3d) 184, 90 C.C.C. (3d) 144 (C.A.)

James Lockyer, for appellant. Michael Bernstein, for respondent.

The judgment of the court was delivered by

[1] SHARPE J.A.: -- The appellant was convicted of second degree murder. The Crown's case was entirely circumstantial. The appellant raises a number of grounds of appeal against conviction. The primary ground is that the trial judge erred in failing to instruct the jury on the difference between direct and circumstantial evidence and in failing to explain the appropriate method of reasoning to be applied to circumstantial evidence.

Overview

[2] The body of Mala Devi Lachman was found on the morning of November 15, 1994 in the Old Mill River in Toronto. She had been strangled and her body had several stab wounds, including mutilation of her vagina. Semen was found in her vagina.

[3] In July 1994, Ms. Lachman and the appellant took out joint policies of life insurance for $400,000 each. The appellant was the sole beneficiary of the deceased's policy. The life insurance policies aroused police suspicions. When questioned by the police, the appellant denied any involvement in the death of the deceased. He also denied any sexual relationship with her. He agreed to provide the police with bodily samples. The appellant's DNA matched that of the semen found in the vagina of the deceased. The appellant then admitted a sexual relationship with the deceased and said that he had had intercourse with her in his car on the morning of her death. However, he denied any involvement in her death.

[4] The appellant was arrested and charged with first degree murder. The Crown's theory was that the appellant was in financial difficulty and that he murdered Ms. Lachman to secure the insurance money. The appellant testified at trial and denied any involvement in the death of Ms. Lachman. He testified that the mutual life insurance had been purchased at the suggestion of the deceased as they had planned to go into business together and he was significantly older.

[5] After a 14-day trial, the appellant was acquitted of first degree murder but convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 16 years.

Issues

1. Should the trial judge have explained to the jury the difference between direct and circumstantial evidence and should he have instructed the jury as to the appropriate method of reasoning to be applied to circumstantial evidence?

2. Did the trial judge err in his direction on reasonable doubt?

3. Was the appellant unfairly prejudiced by speculative positions taken by the Crown and by the failure of the trial judge to deal properly with those positions?

4. Did manner in which the trial judge left manslaughter as a possible verdict unfairly prejudice the appellant?

5. Did the trial judge fail to deal adequately with the evidence of Deonarine Ramrattan as to statements made by the deceased prior to her death?

6. Did the trial judge misstate a material item of evidence by suggesting that the appellant had changed his story during cross-examination?

Facts

[6] Mala Lachman was 26 years of age and lived with her parents. Ms. Lachman and her family had immigrated from Guyana and, at the time of her death, she was planning to return to Guyana to get married. She had booked an airplane ticket to leave Toronto November 22, 1994 and, on the weekend prior to her death, she moved luggage and other belongings to the residence of her sister, Deonarine Ramrattan, in Mississauga.

[7] The deceased's sister, Deonarine Ramrattan, gave evidence as to certain conversations she had with the deceased which were ruled admissible pursuant to R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, 59 C.C.C. (3d) 92. Ramrattan testified that her sister told her about a business deal she had with a Guyanese man to run a grocery store on Queen Street when she returned from her wedding trip to Guyana. The deceased had told her sister that she had co-signed a $400,000 loan at the man's request. Ramrattan further testified that the deceased told her two weeks before her death that she had lent the man $2,000 for new shelves for his store. The deceased told her that she was having difficulty getting the money back and that she needed the money to pay for her ticket to Guyana. When she left Ramrattan's apartment on the day of her death, the deceased told Ramrattan that she was to go to his store to pick up her money but that she was very scared and upset and that she was afraid of meeting him because he had been asking her many times to come to the store and she could not understand why. She told her sister that the man had explained to her that he did not have the money and that it would be necessary to travel to Mississauga to meet someone and to get the money.

[8] Ms. Ramrattan's evidence was strongly challenged by the appellant at trial. Ms. Ramrattan had given several statements to the police but it was not until July 23, 1996, nine weeks before the commencement of the appellant's trial, that she told the police of the conversations referred to above. Several statements made by Ms. Ramrattan as to what her sister had told her were contradicted by earlier statements she had given to the police. She specifically told the police that her sister had never spoken to her about going into business or about a bank loan. Ms. Ramrattan admitted that she had lied to the police in certain respects. Her explanation was that she felt guilty at what had happened to her sister and started blaming herself as her sister had asked her to accompany her to collect the $2,000 loan on the night of her death.

[9] A cashier at the Dufferin Mall saw the deceased between 6:00 and 7:00 p.m. on November 14, 1994. Ms. Lachman's body was found on the morning of November 15, 1994 at about 7:30 a.m. The body was naked and lying in a small pool of water underneath a bridge. The deceased's blood was found on the cement cap at the top of the bridge railing. The deceased died as a result of strangulation. She also had other injuries including blunt force lacerations on her scalp, a fractured left ankle, knife wounds on both her hands consistent with having defended herself against a knife attack and a stab wound 7.5 centimetres long extending from her vagina into her anal canal. She also had abrasions on her shoulder and leg consistent with having been dragged over a concrete cap. Semen was found in the deceased's vagina. DNA analysis indicated that the semen was that of the appellant.

[10] Deonauth Persaud, an insurance agent, gave evidence as to the placement of the $400,000 life insurance policy. He was contacted by the appellant. They later met at a public library. The deceased was not with the appellant. The appellant told Persaud that he had been operating a business for two and one- half years and that the deceased was his partner. Persaud met the appellant and the deceased in June 1994 when arrangements for the life insurance were made. Both the appellant and the deceased filled out applications.

[11] When Persaud learned of the death of Ms. Lachman from a television news report, he called the appellant. Persaud explained that he had an obligation to report the death to the insurance company. Persaud testified that the appellant asked him if he could hold off in the hope that the perpetrators of the crime might be caught, so that he would avoid potential police harassment or questions. Persaud explained that he had a duty to inform the insurer of the death and the appellant appeared to understand. On November 25, 1994, Persaud sent a proof of claim to the appellant. The appellant did not submit the proof of claim nor did he make any claim under the policy.

[12] It was the appellant's evidence that the deceased had approached him in early 1994 about going into business together. He testified that she told him she was marrying a doctor in Guyana who would supply her with some money and that she thought that insurance should be obtained because of the appellant's greater age. He obtained both policies from Persaud in July 1994. He kept the deceased's policy in his store at her request and made payments on both policies pending the deceased's return from her wedding trip to Guyana.

[13] The appellant testified that he had met the deceased when she came to his store as a customer. He stated that, after discussing the projected business partnership and obtaining life insurance, they became physically attracted to each other and a sexual relationship began in September 1994.

[14] It was the appellant's evidence that on November 14, he took his daughter to school, bought some merchandise from a wholesaler, and then met the deceased at about 9:00 a.m. He testified that they had sex in his car and that he dropped her off before returning to his store at 9:40 or 10:00 a.m. He testified that the deceased came to his store twice during the afternoon. She came first about 1:00 p.m. to buy some groceries. She returned later between 5:30 and 5:45 p.m. After making some small purchases, she rushed out and told the appellant she was going to the Dufferin Mall and then to her sister's apartment in Mississauga. The cash register tapes from the store indicated it was closed at 8:33 p.m. The appellant arrived home at about 10:00 p.m. His wife noted no marks or stains on him or on his clothing.

[15] Lee Richmond and Gerrald McCaffery lived in an apartment one floor above ground level beside the appellant's store. Ms. Richmond testified that on the evening of November 14, 1994, she saw a man placing a body in the trunk of a car at the rear of the appellant's store. She said she could see the whole body and that the person was a woman. She described the man as being not white with dark hair, small to medium build, wearing neutral coloured slacks and a light coloured suit. She said that the woman was middle-aged with olive skin and dark, medium length hair, wearing black slacks and a light-coloured buttoned shirt. Other witnesses, namely, the deceased's sisters and a friend, described her as wearing cream-coloured clothing on that day.

[16] Ms. Richmond testified that the man appeared to have difficulty putting the body into the trunk and that she reported her observations to Mr. McCaffery. McCaffery looked and saw a man standing beside a car struggling to put a carpet into the trunk. McCaffery thought that this had occurred between 8:00 p.m. and midnight, perhaps 11:00 p.m. Richmond estimated the time to be 11:00 p.m. McCaffery told Richmond he thought she was mistaken and she returned to the verandah. At that time she saw a man putting a beige rug into his trunk. Both describe the car as being large and light-coloured, possibly white. The appellant owned several cars but none matched this description. Richmond was vigorously cross- examined. She admitted that at the time she was reading a book called The History of Surrealism and that she had "seen images".

[17] Considerable evidence was led concerning the financial circumstances of the appellant. In 1994, the appellant was married with two children, an 11-year-old daughter and a 25- year-old son. He immigrated to Canada from Guyana in 1981 and acquired the Jameson Market on Queen Street West in 1990. His wife was employed as a trust company mortgage renewal officer. The appellant testified that he had substantial investments in Guyana. The matrimonial home was jointly owned and subject to two mortgages which were current. The appellant had acquired two other properties jointly with his sister-in- law but mortgage payments had been allowed to go into default. A second rental property was similarly abandoned when his sister-in-law decided to cease making payments.

[18] The Jameson Market was acquired for $65,000. The appellant's brother lent him money to finance the purchase. The Jameson Market operated from rented premises and conducted a combined retail and wholesale business. The evidence suggested that the business was a marginal one, but the appellant insisted that the income was not accurately reflected by the books and cash register tapes which were seized by the police and that other records had been lost. The appellant put the business up for sale in September 1994 but he denied at trial that he was in serious debt or in any kind of financial difficulty.

Analysis

Issue 1: Should the trial judge have explained to the jury the difference between direct and circumstantial evidence and should he have instructed the jury as to the appropriate method of reasoning to be applied to circumstantial evidence?

[19] The trial judge did not explain to the jury the difference between direct and circumstantial evidence. After directing the jury on the presumption of innocence and the burden on the Crown to prove the guilt of the accused beyond a reasonable doubt (the adequacy of which I will discuss below), the trial judge gave the jury the three part instruction mandated by R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 and then stated as follows:

In this case the Crown's case is completely circumstantial. There is no direct evidence that the accused killed Ms. Lachman. No one saw the accused kill Ms. Lachman, and he never admitted that fact. Thus, you must be satisfied that on the basis of the circumstantial evidence that you do accept as credible and reliable, that the only rational and logical conclusion is that the accused is guilty.

In other words the Crown must have proven the accused's guilt beyond a reasonable doubt which, conversely put, means the absence of any reasonable doubt whatsoever. The key words of course are "reasonable doubt", not conjectural or speculative doubt.

[20] There is no other specific reference to the words "circumstantial evidence" in the trial judge's charge. While he cautioned the jury against making speculative findings, the trial judge did not specifically instruct the jury on the reasoning process it should follow in assessing circumstantial evidence. The appellant's trial counsel objected to this aspect of the charge and urged the trial judge to instruct the jury on the distinction between direct and circumstantial evidence and the drawing of inferences. The trial judge refused this request.

[21] While the trial judge did not go into the difference between direct and circumstantial evidence, he did review the evidence in detail. He set out in very clear and precise terms the respective positions of the Crown and the appellant as to the conclusions the jury ought to draw.

[22] It is submitted by the appellant that as the Crown's case was entirely circumstantial, the trial judge's treatment of circumstantial evidence amounted to a reversible non- direction. The appellant contends that the trial judge ought to have first explained to the jury the difference between direct and circumstantial evidence, and then to have directed the jury to follow a two-step process of reasoning in relation to the evidence. First, they should decide what evidence they believed and, second, they should determine what inferences should be drawn from that evidence.

[23] It is common ground that the modern starting point on the law relating to circumstantial evidence is R. v. Cooper, 1977 CanLII 11 (SCC), [1978] 1 S.C.R. 860, 34 C.C.C. (2d) 18. In Cooper, Laskin C.J.C., referred to the court's earlier judgments in R. v. Mitchell, 1964 CanLII 42 (SCC), [1964] S.C.R. 471, [1965] 1 C.C.C. 155 and R. v. John, 1970 CanLII 199 (SCC), [1971] S.C.R. 781, 2 C.C.C. (2d) 157 as attenuating adherence to the so-called "rule in Hodge's Case" and went on to state (at p. 22):

The time has come to reject the formula in Hodge's Case as an inexorable rule of law in Canada. Without being dogmatic against any use of the formula of the charge in Hodge's Case I would leave the matter to the good sense of the trial Judge . . . with the reminder that a charge in terms of the traditional formula of required proof beyond a reasonable doubt is the safest as well as the simplest way to bring a lay jury to the appreciation of the burden of proof resting on the Crown in a criminal case.

[24] While Laskin C.J.C. was dissenting in the result, the court was unanimous on this point. In his majority judgment, Ritchie J. stated that in a case based upon circumstantial evidence (at p. 33):

It is enough if it is made plain to the members of the jury that before basing a verdict of guilty on circumstantial evidence they must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. In this regard it will be seen that I agree with the Chief Justice in his rejection of the Hodge formula as an inexorable rule of law in Canada.

[25] In R. v. Fleet (1997), 1997 CanLII 867 (ON CA), 120 C.C.C. (3d) 457 at pp. 464-65, this court reviewed the jurisprudence on circumstantial evidence and stated as follows:

We read the object of both judgments in Cooper to be the eradication of any formulaic approach to such cases so long as the jury is clearly made aware of the necessity to find the guilt of the accused to be established beyond a reasonable doubt. This object may be achieved in more ways than one. Thus, the trial judge, reviewing the evidence and setting out the position of the defence and relating the substantial parts of the evidence to that position, may frame the requisite instruction in the manner he or she considers most appropriate in the circumstances, for example, by:

(a) charging the jury in accordance with the traditional language of proof beyond a reasonable doubt (per Laskin C.J.C. in Cooper);

(b) charging the jury in accordance with that language and pointing out to the jury the other inferences that the defence says should be drawn from the evidence and the necessity to acquit the accused if any of those inferences raises a reasonable doubt (as the trial judge did in Cooper in the final portion of his recharge); or

(c) charging the jury that it must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts (per Ritchie J. in Cooper and Dubin J.A. in Elmosri).

The essential requirement is to impress upon the jury the need to find guilt proven beyond a reasonable doubt and to make plain to them the manner in which such a doubt can arise in the context of a case of proof of identity by circumstantial evidence.

[26] In my view, the trial judge's instruction to the jury in the case at bar met the requirements of Cooper, supra, and satisfied the standard set out by this court in Fleet, supra. Indeed, the trial judge instructed the jury in each of the three ways suggested in that case. First, he charged the jury in accordance with the traditional language of proof beyond a reasonable doubt. Second, he carefully charged the jury on the inferences it was being asked to draw from the evidence and instructed them to acquit the accused if any of those inferences gave rise to a reasonable doubt. Third, he clearly instructed the jury that in order to convict, it must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the facts.

[27] The appellant contends that despite Cooper, supra, and Fleet, supra, the appropriate instruction to be given to the jury in a case based upon circumstantial evidence must now be reassessed in the light of the Supreme Court of Canada's judgment in R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, 123 C.C.C. (3d) 225. I disagree. In Charemski, the court dealt with the test to be applied on a motion for a directed verdict. The accused was charged with murder. The Crown's case was entirely circumstantial. At the conclusion of the Crown's case, the accused moved for a directed verdict on the ground that there was no evidence on the issue of causation. The trial judge granted the motion and directed a verdict of acquittal. This court allowed the Crown's appeal and set aside the directed verdict. That decision was upheld on appeal to the Supreme Court of Canada. The appellant submits that the effect of the judgment is to resurrect the "rule in Hodge's case" and, by implication, the need to explain the nature of circumstantial evidence and the drawing of inferences from such evidence. Particular reliance is placed on the following passages from the majority judgment of Bastarache J. at pp. 684 and 690 S.C.R., pp. 230 and 234-35 C.C.C.:

Where the evidence is purely circumstantial, this Court made it quite clear, [in R. v. Monteleone 1987 CanLII 16 (SCC), [1987] 2 S.C.R. 154] at p. 161, that the issue of whether the standard set in Hodge's Case has been met is a matter for the jury, and not the judge: "The question of whether circumstantial evidence meets the requirement of the so-called rule in Hodge's Case . . . is for the jury to determine. This was settled in Mezzo [Mezzo v. R., 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802]" (emphasis added). In other words, whether or not there is a rational explanation for that evidence other than the guilt of the accused, is a question for the jury. To my mind, this view is dispositive of this case and the Court need go no further than to rely on this authority.

In my view, the trial judge should have directed the jury according to the requirement that a finding of guilt could only be made where there was no other rational explanation for the circumstantial evidence but that the defendant committed the crime (John v. The Queen, 1970 CanLII 199 (SCC), [1971] S.C.R. 781 at pp. 791-92; R. v. Cooper, 1977 CanLII 11 (SCC), [1978] 1 S.C.R 860 at p. 881; Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802 at p. 843). Making that finding is essentially a factual matter arising from an evaluation of the evidence. That assessment is properly left to the jury. Judges should not be hasty to encroach on that time-honoured function, particularly where well-established principles articulated in this Court provide clear guidance on the circumstances in which a question may be withheld from the jury.

[28] These passages should not be taken out of context. The issue before the court was the respective roles of judge and jury in relation to circumstantial evidence and whether the trial judge was entitled to take the case away from the jury. The entire thrust of the decision is that it is the jury's preserve to draw the appropriate inferences, not the trial judge. The issue presented in the case at bar, namely, the appropriate instruction in law to be given the jury in a case resting upon circumstantial evidence, was not before the court in Charemski, supra. It is true that in the second passage quoted above, Bastarache J. referred to the appropriate direction, but in doing so, he specifically cited R. v. Cooper, supra, as a governing authority. In light of that reference, and in light of the actual issue presented in the case, I cannot read Charemski, supra, as reversing or disturbing what was decided in Cooper, supra. Nor do I read the decision as requiring trial judges to deliver abstract lectures to juries on the differences between direct and circumstantial evidence. Moreover, as I have already noted, in the present case, the trial judge did instruct the jury in language very similar to that suggested by Bastarache J. In my view, Charemski, supra, does not assist the appellant.

[29] The submission advanced by the appellant on this point runs counter to the steady and unrelenting stream of jurisprudence on circumstantial evidence over the past thirty years. The modern approach to the problem of circumstantial evidence, enunciated clearly in Cooper, supra, and reiterated and reinforced by Fleet, supra, is to reject a formulaic approach and to deal with all the evidence in terms of the general principles of reasonable doubt. Trial judges are given a degree of latitude to formulate the appropriate instruction as befits the circumstances of the case. Trial judges are not required to adopt any specific language or wording, provided the charge conveys to the jury in a clear fashion the central point, namely, the necessity to find the guilt of the accused beyond a reasonable doubt. In particular, trial judges are not required to deliver to the jury a general, abstract lecture on the nature of circumstantial evidence or on the steps of logic to be fo llowed in assessing circumstantial as distinct from direct evidence. An academic exercise along those lines may well confuse rather than assist the jury. Trial judges are entitled to conclude that the essential message of the need to establish guilt beyond a reasonable doubt can be better conveyed in other ways.

[30] The trial judge's instruction in the case at bar conveyed to the jury in clear and unambiguous terms the respective positions of the Crown and the defence as to the possible inferences to be drawn from the evidence. In his review of the evidence and the possible inferences to be drawn, the trial judge repeatedly conveyed to the jury the need to find that the evidence proved the guilt of the appellant beyond a reasonable doubt. Accordingly, I would dismiss this ground of appeal.

Issue 2: Did the trial judge err in his direction on reasonable doubt?

[31] The trial took place before the Supreme Court of Canada handed down its decision in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1 in which the court clarified how trial judges should explain to juries proof beyond a reasonable doubt. The appellant contends that by using the following language, commonly found in pre-Lifchus charges, the trial judge fell into reversible error:

When I speak of reasonable doubt, I use the words in their ordinary natural meaning, not as a legal term having some special connotation. Reasonable doubt is essentially self- defining. Thus, reasonable doubt is an honest and fair doubt, based upon reason and common sense after having considered all of the evidence as a whole. It is a real doubt. Not an imaginary or frivolous doubt born out of sympathy or prejudice. Reasonable doubt must not be based upon conjecture or speculation.

(Emphasis added)

[32] In Lifchus, supra, at p. 330 S.C.R., p. 9 C.C.C., Cory J. disapproved of explaining reasonable doubt as an "ordinary concept". The appellant also objects to the trial judge's use of the words "honest", "fair" and "real" as synonyms for "reasonable".

[33] The appellant also submits that the trial judge erred in failing to distinguish between the civil burden of proof on a balance of probabilities and the criminal burden of proof beyond a reasonable doubt and in failing to instruct the jury that a finding that the appellant probably killed the deceased did not amount to proof beyond a reasonable doubt. In Lifchus, supra, at p. 334 S.C.R., p. 12 C.C.C., Cory J. stated that as jurors may have heard of the civil "balance of probabilities" standard, they should be told not to apply that standard in a criminal case.

[34] In my view, these departures from what the Supreme Court held to be appropriate in Lifchus do not warrant a new trial. As this court and other courts have repeatedly stated, a jury charge has to be read as a whole. In reviewing the evidence and the elements that the Crown must establish, the trial judge instructed the jury several times in terms of the three-part R. v. W. (D.), supra, formulation. He cautioned the jury against engaging in an "either or" analysis and also cautioned against engaging in speculation. As already indicated, he instructed the jury that they should only convict if "the only rational and logical conclusion is that the accused is guilty".

[35] While trial judges are now expected to follow the Lifchus model charge, failure to do so in cases tried before Lifchus, supra, does not constitute reversible error if the charge conveys to the jury the special meaning attached to reasonable doubt: R. v. Arsenault, [1997] O.J. No. 3977 (C.A.); R. v. Russell, 1998 ABCA 184, [1999] 1 W.W.R. 684, 62 Alta. L.R. (3d) 87 (C.A.). It has been specifically held by this court that the use of the phrase "ordinary natural meaning" is not necessarily fatal: R. v. Boyer, [1998] O.J. No. 1501 (C.A.); R. v. Atkinson, [1997] O.J. No. 4788 (C.A.). Similarly, failure to direct the jury on the difference between the civil balance of probability standard and the criminal standard of proof beyond a reasonable doubt is not necessarily fatal: R. v. Barnes (1999), 1999 CanLII 1355 (ON CA), 117 O.A.C. 371, 39 M.V.R. (3d) 256.

[36] In my view, reading the charge as a whole, this jury could not have been left with any doubt that the burden was on the Crown to prove every element of the offence beyond a reasonable doubt rather than on a mere balance of probabilities. Nor do I think it possible, reading this charge as a whole, to find any basis for saying that the jury was not given an adequate explanation of the meaning of proof beyond a reasonable doubt.

Issue 3: Was the appellant unfairly prejudiced by speculative positions taken by the Crown and by the failure of the trial judge to deal properly with those positions?

[37] Mr. Lockyer argues that on a number of occasions the Crown put purely speculative suggestions to the appellant in cross-examination and to the jury in his closing address. It is further submitted that the trial judge failed to give adequate direction to the jury with respect to these speculative positions.

[38] Certain of the deceased's injuries appeared to be more consistent with a sexual assault than with a murder for gain. This aspect of the evidence was inconsistent with the Crown's theory that the accused had murdered the deceased to collect on the insurance policy. Evidence was led of discussions the police had with the appellant relating to the murders of several prostitutes in the Parkdale area of Toronto at around the same time as the death of Ms. Lachman. On cross- examination, the appellant admitted that he had heard of these murders. Crown counsel then suggested that the appellant had mutilated the body of the deceased to make it look like she was another victim of the same sex killer who had murdered the prostitutes. The accused denied the suggestion. Neither counsel referred to this in closing argument. Nonetheless, the trial judge related in his charge to the jury that it was the Crown's position that the accused had mutilated the deceased's sexual organs and dumped her nude body into the river in an attempt to simulate a copycat killing of a Parkdale prostitute.

[39] The appellant submits that this theory was entirely speculative and unsupported by the evidence, and that it was used as a device by the Crown to explain away a weakness in the case, namely, that the circumstances of the death of Ms. Lachman did not fit the Crown's overall theory of the case.

[40] Another point along the same lines relates to the appellant's car. Lee Richmond and Gerald McCaffery, the nearby tenants who testified that they saw a man putting either a body or a rug into a car behind the appellant's store, described the car. The appellant did not own a car that matched their description. Again, in the submission of the appellant, the Crown employed the tactic of making an entirely speculative suggestion in an attempt to explain away the difficulty this evidence posed. In cross-examining the appellant, Crown counsel suggested that the appellant extended credit to some needy customers and that they would have returned the favour by lending him their car. The appellant denied that he had borrowed a car.

[41] Further instances of the Crown's speculative propositions include the suggestion that the accused had made up a story that the deceased had been robbed prior to her murder. During his charge to the jury, the trial judge referred to the Crown's position that the appellant had spread a false story of the deceased having been robbed. The Crown suggested that the deceased was murdered in the appellant's store. Crown counsel reiterated this point in his closing address, as did the trial judge in his charge to the jury. The appellant contends that there was no evidence to support that proposition either.

[42] I agree with the proposition advanced by Mr. Lockyer that it is wrong for the Crown to present speculative propositions, unsupported by the evidence, in an attempt to explain away gaps in the Crown's case or inconsistencies in the evidence: see R. v. Nugent (1995), 1995 CanLII 8927 (ON CA), 24 O.R. (3d) 295 at p. 299, 100 C.C.C. (3d) 89 at p. 94 (C.A.); R. v. Walker (1994), 1994 CanLII 8725 (ON CA), 18 O.R. (3d) 184 at pp. 195-96, 90 C.C.C. (3d) 144 at p. 154 (C.A.). I am not satisfied that anything done by Crown counsel in this regard was sufficient to vitiate the trial.

[43] With regard to the sexual mutilation, the suggestion that the murder was linked to the murders of the Parkdale prostitutes was presented by the defence. The body of the deceased had been sexually mutilated and given the defence position that the death could be one of a series of sex-related killings, it was open to the Crown to test the accused's denial of guilt with the proposition that there was a possible reason for him to have mutilated the body. In my view, on this point Crown counsel did not cross the line of fairness by testing the defence being advanced.

[44] I view the suggestion that the accused had borrowed a car on the night of the murder to dispose of the body as being very close to, if not over, the line. There was no evidence to support the proposition and despite the appellant's denials, Crown counsel persisted with the proposition at some length. However, I am not persuaded that this vitiates the trial. The Crown did present evidence, however tenuous, that a man was seen putting a body in the trunk of a car at the rear of the appellant's store. The Crown was certainly entitled to put it to the appellant that he was the man disposing of the body. The jury would be fully aware that the accused had several vehicles, none of which matched the description of the car offered by Richmond and McCaffery. Given the adamant denials of the appellant that he borrowed cars from his customers, the fact that this proposition was not pursued by Crown counsel in his closing address and, in view of the overall context of the trial, I am not satisfied that the conduct of the Crown was sufficiently prejudicial to warrant a new trial.

[45] In my view, there is no merit in the final two points raised by the appellant. The robbery story was introduced by the defence and the Crown was entitled to test the truth of the story. As for the suggestion that the murder occurred in the appellant's store, there was some foundation in the evidence, namely, the evidence that the deceased had been in the store during the evening, and the evidence that the accused had asked her to come to the store on that day.

Issue 4: Did the manner in which the trial judge left manslaughter as a possible verdict unfairly prejudice the appellant?

[46] The appellant submits that his primary defence that he had nothing to do with Ms. Lachman's death was unfairly undermined by the manner in which the trial judge instructed the jury with respect to a possible verdict of manslaughter.

[47] In his charge to the jury, the trial judge introduced manslaughter as an included offence and possible verdict with these words:

The accused also asks that you consider the following scenario on the question of murderous intent. It is reasonably possible that the killer was having sexual intercourse with Ms. Lachman when he began to strangle her and in that excited state of mind there may be a reasonable doubt whether the killer meant to cause Ms. Lachman's death or meant to cause her bodily harm that he knew was likely to cause her death and was reckless whether death ensued or not. Thus the killer would not be guilty of second degree murder, but only of manslaughter.

(Emphasis added)

[48] At trial, the appellant did not resist manslaughter being left with the jury. Before this court, the appellant more or less concedes that it was open to the trial judge to conclude that he was required to put manslaughter to the jury as a possible verdict. However, the appellant's trial counsel did not present the scenario described by the trial judge in the above quoted passage. The appellant submits that the trial judge was in effect telling the jury that the appellant was putting forth an alternative defence by suggesting that he was presenting manslaughter at the request of the accused. Accordingly, the appellant contends that this was damaging as it unfairly undermined the defence he did present, namely, that he had nothing to do with the killer.

[49] Mr. Lockyer urges this court to consider this submission in the context of the charge as a whole. The trial judge structured the charge by dealing first with the legal elements of second degree murder, then with the elements of first degree murder on the basis of planned and deliberate murder, followed by the elements of first degree murder committed in the course of sexual assault and, finally, the trial judge dealt with manslaughter. At each stage, and on each issue, the trial judge presented the respective positions of the Crown and the defence. The result was that the jury was told first: "The accused . . . respectfully submits the Crown has failed to prove that the murder was planned and deliberate"; then that "the accused respectfully submits that the Crown has failed to prove beyond a reasonable doubt that the sexual assault took place during the murder"; and finally, as quoted above, that it was the accused who asked the jury to consider a possible manslaughter verdict. The appellant posits tha t by making it appear to the jury that he was presenting a series of alternative defences, the jury was led to doubt the credibility of the case the appellant actually presented and wanted the jury to consider, that he had nothing to do with the death of Ms. Lachman.

[50] Mr. Lockyer relies on R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620, 117 C.C.C. (3d) 226 (C.A.) where the accused advanced self-defence to a charge of murder and, over the objection of the accused, the trial judge left provocation with the jury. This court stated at p. 632 O.R., p. 242 C.C.C.:

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.

[51] These comments must be read in context. In Peavoy, supra, defence counsel did not want the trial judge to put forth the defence of provocation. Although this court stated that the trial judge ought to have explained to the jury that the issue of provocation was not presented by the defence but that it was a defence the judge was obliged to put to the jury as a matter of law, his failure to do so did not constitute a reversible error.

[52] In the present case, defence counsel argued in his closing address to the jury that the Crown had failed to prove that the murder was planned and deliberate or that the murder was committed during the course of a sexual assault. As counsel for the appellant did not advance the "scenario" that the trial judge used to explain a lack of murderous intent, the trial judge should not have attributed it to the appellant. In my view, however, this slip was relatively innocuous. In the suggested scenario, the reference is to "the killer", not the appellant and I do not think that the jury would understand the trial judge to be suggesting that the appellant was backing away from his central and basic position that he was not the killer.

[53] Defence counsel at trial agreed during a pre-charge hearing that manslaughter should be left with the jury. In view of these submissions, and in light of the innocuous nature of the trial judge's reference to "the killer", it is my view that the trial judge did not err in the manner in which he presented the possible verdict of manslaughter to the jury. The trial judge carefully explained each element of each offence. He articulated in clear language the respective positions of the Crown and the accused. Reading the charge as a whole in light of the way the trial proceeded and in view of counsels' closing arguments, it is my view that the jury could not have had any doubt that the position of the appellant was that he had nothing to do with the killing. The trial judge was obliged to explain the elements of the various offences and the evidence pertaining to each element. In my view he did so without detracting from or undermining the appellant's essential defence.

[54] I note as well that the appellant's trial counsel did not raise an objection to this aspect of the charge. While this is not fatal to a submission advanced on appeal, failure to object may be considered in assessing an argument that the manner in which the case was left with the jury created an unfair impression. In the present case, trial counsel's failure to object in conjunction with his submissions to the trial judge and his closing address to the jury, supports the respondent's argument that the trial judge essentially repeated to the jury the arguments advanced by counsel. Accordingly, I would reject this ground of appeal.

Issue 5: Did the trial judge fail to deal adequately with the evidence of Deonarine Ramrattan as to statements made by the deceased prior to her death?

[55] The deceased's sister, Deonarine Ramrattan, gave evidence as to statements made by the deceased prior to her death. This evidence was admitted on the authority of R. v. Khan, supra. The statements were damaging to the appellant. In particular, Ramrattan testified that the deceased told her she had lent money to the appellant and that she was having difficulty getting paid, that the appellant had telephoned her several times on the day of her disappearance and that she was afraid to meet with him. The appellant submits that the trial judge failed to warn the jury adequately of the danger of accepting the evidence of Ramrattan because her trial evidence was seriously at odds with several statements she had made to the police.

[56] I do not accept this submission. The trial judge clearly instructed the jury that they had to assess Ramrattan's credibility "in light of her admitted bias against the accused and in light of her failure to tell the police about the statements until 19 months after her sister's death. The defence alleges she fabricated statements out of whole cloth." Later in his charge, the trial judge returned to this aspect of Ramrattan's evidence:

You will recall that Ms. Ramrattan spoke to the police on many occasions about her sister's homicide, but did not mention anything about her sister's relationship with Mr. Tombran until July 23, 1996. Specifically the police had repeatedly asked her if her sister had any problems with anyone. Ms. Ramrattan said nothing about her sister's relationship with Mr. Tombran until July 23rd, 1996, despite numerous opportunities to do so.

Please carefully assess the credibility and reliability of Ms. Ramrattan's evidence in light of her admitted bias against the accused Tombran, in light of her repeated statements that she knew no one with whom her sister was having problems. It is clearly open to you to find her evidence not to be credible and reliable because of her repeated prior inconsistent statements.

[57] In my view, these warnings were adequate.

[58] The appellant also complains that the trial judge failed to warn the jury of the danger of accepting the truth of the statements of the deceased as she could not be cross-examined and as the jury did not have the opportunity to observe her demeanour: see R. v. A. (S.) (1992), 1992 CanLII 7517 (ON CA), 11 O.R. (3d) 16 at pp. 21-22, 76 C.C.C. (3d) 522 at pp. 527-28 (C.A.). The trial judge did make brief reference to this point:

In the end, it is open to you to act on the deceased's alleged statements despite her unavailability to testify at trial under oath and be cross-examined, only if you find that from the deceased's perspective the statements were both credible and reliable, and only if you find the evidence of Ms. Ramrattan as to the statements is also credible and reliable.

[59] As R. v. A. (S.), supra, makes clear, it will often be necessary to give a stronger caution with respect to an out-of- court statement. However, in the present case the real issue for the jury to consider was whether Ramrattan was a reliable witness and whether or not the deceased made the statements, rather than whether the statements were true if made. I am not persuaded that the charge was significantly deficient on this point.

Issue 6: Did the trial judge misstate a material item of evidence by suggesting that the appellant had changed his story during cross-examination?

[60] In the course of his directions to the jury, the trial judge stated as follows:

As for the accused's identity as the murderer, the Crown relies on the following. The accused had motive to kill Ms. Lachman. He needed money to cover his failing financial endeavours. He was not making money. And that stung his arrogant pride. He even agreed initially in cross-examination that he was badly in debt, although he resiled from that later.

(Emphasis in original)

[61] The appellant claims that he did not resile from an admission that he was badly in debt and there was no basis in the evidence for the reference to "arrogant pride".

[62] In my view, the trial judge did not misstate the evidence which includes the following exchange during the appellant's cross-examination:

Q. There's no question that you were badly in debt by the fall of 1994, is there?

A. No, sir.

[63] While perhaps this question was ambiguous, the questions that follow go on to explore the appellant's various bad investments that were declining in value. Later on, the appellant denied that he was in financial difficulty. In my view, the trial judge did not misstate the evidence on this point. The reference to "arrogant pride" was unfortunate, but it was clearly put as the position of the Crown, not the opinion of the judge, and it falls well short of reversible error.

Conclusion

[64] For these reasons, I would dismiss the appeal.

Appeal dismissed.