COURT OF APPEAL FOR ONTARIO
DATE: 20000214
DOCKET: C30011
ABELLA, LASKIN and FELDMAN JJ.A.
B E T W E E N : )
) Michelle K. Fuerst
HER MAJESTY THE QUEEN ) for the appellant
)
Respondent )
)
- and - ) M. David Lepofsky and
) Greg Tweney
LORIE FERGUSON ) for the respondent
)
Appellant )
)
Heard: May 12, 1999
On appeal from the judgment of The Honourable Mr. Justice Hurley
with a jury dated May 23, 1998.
ABELLA J.A.:
[1] Lorie Ferguson was found guilty by a jury of second degree
murder in the shooting death of her spouse David Rick Horne. The
only issue at trial was intent. The Crown’s case on that issue
was entirely circumstantial. Ms. Ferguson testified that the
death was an accident. A previous trial had resulted in a hung
jury.
[2] Although other grounds of appeal were raised, in my view the
disposition of this appeal turns on whether the trial judge was
correct in acceding to the jury’s request during its
deliberations for a copy of the Crown’s closing submissions.
Background
[3] Ms. Ferguson and Mr. Horne had lived together for 14 years.
By all accounts, the relationship was warm and affectionate.
They had two daughters, Jennifer, born in 1983, and Simone, born
in 1989.
[4] Ms. Ferguson, who gave evidence at the trial, stated that
the relationship was an excellent one. The only serious argument
they ever had occurred in the early 1990s while the family was
living in British Columbia. Mr. Horne had forced Ms. Ferguson
out of their home, causing her to sleep in the car overnight.
They reconciled the next day. In addition, Mr. Horne had slapped
her on two occasions years earlier, but after the second time,
she told him that if he ever hit her again, she would leave him.
He never did.
[5] The couple owned four hunting rifles, which they kept in a
locked gun cabinet in their basement. The ammunition case was
also locked. One of the guns belonged to Ms. Ferguson, a .303
calibre sporting rifle which had been modified for her. Both Mr.
Horne and Ms. Ferguson had the proper gun licences and, although
Ms. Ferguson was not as adept at using her rifle as Mr. Horne,
both of them knew how to use the guns.
[6] The most pressing family problem was financial. Both Ms.
Ferguson and Mr. Horne drank heavily, drinking a total of 24-36
beers daily. This represented a monthly expense of around $800,
which affected their ability to keep up payments on debts such as
their mortgage.
[7] Mr. Horne was the only one who had paid employment. As a
result of Mr. Horne’s death, Ms. Ferguson lost her home, her car,
and became dependent on social assistance.
[8] Mr. Horne was taking amitriptyline, a medication his doctor
prescribed to counteract bouts of depression.
[9] Sunday, June 16, 1996 was Father’s Day. Ms. Ferguson and
Mr. Horne spent the day at the home of their friends, Dan Gorman
and Angie Wilson. Their daughters remained at home.
[10] They arrived at the Gorman/Wilson home at 10:30 a.m. and
remained until around 4:30 p.m. Ms. Ferguson had 4 or 5 beers in
the course of the day. Mr. Horne had 7 or 8, and smoked some
hashish oil.
[11] Ms. Ferguson had originally planned to cook a roast for
dinner, but when it appeared that she and Mr. Horne would not be
home in time, she called her daughter Jennifer and asked her to
put the meat back in the refrigerator.
[12] Back at their own residence, Ms. Ferguson and her daughters
planted some flowers she had bought earlier in the day. Mr.
Horne drank at least one more beer. After the planting, Mr.
Horne got angry at Ms. Ferguson because she was not cooking the
roast for dinner. Ms. Ferguson’s assertion that it was too late
for her to cook it, led to an argument during which Mr. Horne
complained about Ms. Ferguson not having a job. In the course of
the argument, he called her a “lazy bitch”.
[13] Ms. Ferguson interrupted the argument to feed their
daughters, who then took showers in the basement and went to bed
around 7:30 p.m.
[14] After the girls went to bed, Ms. Ferguson and Mr. Horne sat
on the couch drinking beer, and continued the argument about the
roast and Ms. Ferguson not having a job.
[15] At around 8:00 p.m., Mr. Horne went upstairs to the bedroom.
Ms. Ferguson followed, carrying the two glasses of water she
brought to the bedroom nightly so they would have water to drink
during the night to alleviate the dehydration caused by the
amount of beer they drank daily.
[16] The argument continued briefly in the bedroom. Ms. Ferguson
said that she and Mr. Horne usually slept in the nude, and that
she was therefore surprised to see him suddenly leave the bedroom
without any clothes on, something he never did. He returned,
according to her evidence, with a rifle which he aimed at her,
telling her to get out. Ms. Ferguson told him she would leave
the next day. The rifle Mr. Horne was holding belonged to Ms.
Ferguson. There was no dispute that it was the first gun visible
when the gun cabinet in the basement was opened.
[17] Ms. Ferguson testified that he came towards the bed with the
gun. It never occurred to her that the gun was loaded. She and
Mr. Horne were then both kneeling on the bed, facing each other.
She pushed him and tried to knock the rifle out of his hand. A
struggle ensued and a shot was fired. Ms. Ferguson said that she
found herself holding the gun, but did not know how the gun was
fired or who fired it.
[18] She called the police immediately, who arrived within
minutes. She sat in the police cruiser talking to a police
officer for about 25 minutes. She was crying and visibly shaken.
She told the police that she and Mr. Horne had argued; that Mr.
Horne had gone downstairs and returned to the bedroom with a gun,
telling her to leave or he would kill her; that they had fought
on the bed over the gun; and that she did not know how the gun
discharged.
[19] The next day, June 17th, she received a call asking her and
her daughters to come to the police station. At the station, Ms.
Ferguson was cautioned and told that she had the right to call a
lawyer. She declined the offer and proceeded voluntarily to give
a 3-hour videotaped statement to the police, which was not
introduced at trial.
[20] At trial, the older daughter, Jennifer, testified that she
could tell the difference between her parents’ footsteps, and
that the last footsteps she heard going down to the basement and
then back up to the bedroom on June 16th, were those of her
father. When questioned by police the day after the shooting, she
told them that she had heard a bang, but did not mention hearing
her father’s footsteps going down to the basement. When asked
at trial why she did not give this information to the police on
June 17, 1996, she said that nobody had asked her about it and
that she did not know it was important information.
[21] Jennifer had a good relationship with both of her parents,
but was closer to her father.
[22] Footprint evidence was gathered in the basement, but
resulted in only 10 footprint imprints being found, most of them
identified as belonging to Ms. Ferguson. None of them belonged
to Mr. Horne or Simone, despite uncontradicted evidence that all
four members of the family had been in the basement on June 16th.
Jennifer Horne said that she and her sister Simone went to the
basement 10 or 15 times that day.
[23] In his charge, the trial judge told the jury to disregard
the evidence of the footprint expert because it was of doubtful
probative value given how few footprints were taken and that
there was no way to determine how old they were.
[24] No fingerprints were found on the gun or in the house.
[25] William Robinson, the forensic toxicologist, found that Mr.
Horne had 254 mg of alcohol per 100 ml of blood in his system at
the time of his death, the equivalent of 10 » beers, plus some
amitriptyline and some tetrahydrocannabinol (THC), the active
ingredient in marijuana or hashish. His evidence was that as a
result, Mr. Horne probably had impaired judgment and
coordination.
[26] The defence expert in toxicology, Dr. Harold Kalant,
testified that the combination of alcohol, hashish and drugs had
an additive effect, with each component enhancing the effect of
the other. The additive effect meant that Mr. Horne’s level of
intoxication would have resembled 280 or 300 mgs of alcohol per
100 ml of blood in his system.
[27] Expert evidence was led at trial about how the bullet
entered Mr. Horne’s body. But the experts called on behalf of the
Crown acknowledged on cross-examination that it was not
inconceivable that the death could have occurred accidentally in
the way the defence suggested. Specifically, the experts could
not rule out the possibility that there had been a struggle on
the bed, with Mr. Horne falling backwards and hitting the
mattress just as the bullet was discharged from the gun.
[28] The Crown’s closing statement was a reiteration of all of
the evidence supporting its theory that Ms. Ferguson intended to
shoot and kill Mr. Horne. He reviewed the evidence and invited
the jury to infer that Ms. Ferguson went to the basement, took
out the gun, loaded it, took it upstairs, and shot Mr. Horne as
he was sleeping. Because that was the only reasonable inference
the Crown felt the jury could draw from the evidence at trial,
all of its arguments in the closing statement reinforced that
theory.
[29] In his closing statement, counsel for Ms. Ferguson referred
to the Crown’s evidence and tried to persuade the jury that it
was equally consistent with Ms. Ferguson’s defence that the death
of Mr. Horne was an accident. He pointed out that the couple had
enjoyed a close relationship, and that Ms. Ferguson had no motive
to kill her spouse - her closest companion and the sole
breadwinner in the family.
[30] About 2 and a half hours after retiring to deliberate, the
jury asked for a transcript of that part of the judge’s charge
relating to manslaughter. Two hours later, the jury asked for a
transcript of the Crown’s closing statement.
[31] The exchange that took place between the trial judge and
both counsel indicates that the request for a copy of the Crown’s
jury address appeared to have been treated by all of them as an
uncontroversial one. While it is true that the trial judge did
not, strictly speaking, seek to canvass the opinions of counsel
but put it to them as a fait accompli, it is also true that there
is no indication that defence counsel had any concern about
complying with the jury’s request, as the following exchange
reveals:
THE COURT: Gentlemen, I have a message
from the jury. “Dear Judge: We would like
the transcript of the Crown’s closing
statement.” I’ve just spoken to Mrs. Ellis,
and she says that it would take her two hours.
And looking at that transcript, how long do
you expect it would take you to read it.
THE REPORTER: Quicker than Mr. Woods
gave it.
THE COURT: Mrs. Ellis says it would
take an hour and a half to two hours to
transcribe that, and of course it would take
a good deal less to read it. What do you
suggest we do? May I suggest that, should we
speak to the jurors and ask them which they
want, give[n] Mrs. Ellis’ estimates?
Crown counsel: I’m quite content
with that, Your Honour.
Defence counsel: Yes, Your Honour.
THE COURT: And in either case we’ll
accede to their request. Is that agreed?
[Emphasis added.]
[32] There is no suggestion that there was anything in any way
inappropriate in the Crown’s closing statement.
[33] The charge to the jury was fair and balanced.
[34] In total, the jury deliberated for 9 hours.
[35] The appellant’s position is that the trial judge erred in
giving the jury only the Crown’s closing submission. While a
trial judge clearly has a duty to assist jurors with questions
they may have in the course of their deliberations, this
assistance, the appellant argues, must be rendered in a way which
safeguards the fairness of the trial. In a case such as this,
where the Crown’s case is based on inferences rather than direct
evidence, the trial judge ought to have refused the jury’s
request, or at least arranged to have the closing statement of
the defence also read or given to the jury. Given the
circumstantial nature of the evidence, the appellant argued, it
could not be said that leaving only the Crown’s closing statement
with the jury caused no prejudice to the accused.
[36] The Crown, on the other hand, argued that the trial judge
was entitled to respond to the jury’s request in a complete way,
since jury questions reflect a problem the jury is having and
therefore require a careful and full response. Although when a
transcript of some of the evidence is requested by the jury, the
trial judge is generally required to give both the direct
examination and the cross-examination of the witness on that
point, this does not mean that the trial judge is prohibited from
providing the jury with a transcript of only one counsel’s
closing address.
[37] Moreover, the Crown argued, there was no prejudice to the
accused in this case for the following reasons:
(a) At trial, defence counsel did not object to complying
with the jury’s request, nor did he ask that his closing
address also be given to the jury.
(b) The defence theory was simple and straightforward, and
the jury would have been familiar with it. The fact that
the jury did not ask for a copy of the defence counsel’s
closing statement is an indication that it was, or felt
itself to be, sufficiently familiar with the defence’s
arguments not to require that its memory be refreshed.
(c) The trial judge’s charge was extremely fair and
reviewed the defence arguments carefully. It made
particular reference to the obvious weaknesses in the
Crown’s case, including the lack of motive, the inadequacy
of the footprint evidence, the concession by the Crown’s
experts that the defence counsel’s version of events was
possible, the fact that Ms. Ferguson’s explanation of what
happened never wavered, and the fact that Jennifer Horne’s
explanation for not mentioning her father’s footsteps to the
police was a reasonable one.
(d) The defence counsel’s closing statement itself made
consistent references to the Crown’s theory of the case and
the evidence upon which the Crown was relying. The jury,
therefore, would in any event have been reminded of the
Crown’s theory if it had re-read the defence’s closing
statement.
(e) The Crown’s closing statement was brief and consistent
with the theory it had promoted throughout the trial.
(f) The fact that the jury continued to deliberate that
evening and into the next morning after receiving the
Crown’s closing address, demonstrates that it gave careful
consideration to the evidence and was not immediately
persuaded by re-examining the Crown’s jury address.
(g) There is no guarantee that providing the jury with the
defence’s closing statement would have meant that the jury
would have read it. It was more likely that the jury would
only have read what it asked to see.
(h) The requirement to give the jury all aspects of an
evidentiary point when it requests a portion of a witness’s
evidence, the Crown argued, reflects the need to ensure that
the jury’s decision is based on all the relevant evidence.
The requirement that the entire portion, not just the
requested part, be given to the jury when it asks a question
about a legal point in the judge’s charge, stems from the
requirement that the jury receive all relevant assistance
about the law in making its deliberation. The Crown’s
closing address, however, is neither evidence nor law; it
is merely argument.
Analysis
a) Failure to object
[38] The failure of defence counsel to object, while a factor to
consider, is not a bar to consideration of an issue on appeal.
(See R. v. Cullen, 1948 13 (ON CA), [1949] O.R. 10 (C.A.); R. v. Lomage (1991), 2
O.R. (3d) 621 (C.A.); R. v. G.D.D., [1998] O.J. No. 4846 (C.A.)
(Q.L.); R. v. Ramos (1997), 1997 1425 (ON CA), 101 O.A.C. 211; R. v. Corriveau
(1985), 1985 3550 (ON CA), 19 C.C.C. (3d) 238; R. v. Mullins-Johnson (1996), 31
O.R. (3d) 660 (C.A.), appeal dismissed, 1998 831 (SCC), [1998] 1 S.C.R. 977; and
R. v. J.F.A. (1993), 1993 14667 (ON CA), 82 C.C.C. (3d) 295 (Ont. C.A.); R. v.
Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314; R. v. Arcangioli, [1994] 1 S.C.R.
129).
[39] Nor does the failure to object relieve the trial judge from
overall responsibility for ensuring a fair trial. As Justice
L’Heureux-Dub‰ said in R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449:
Notwithstanding this responsibility borne by the
accused [and the accused’s counsel to competently
make tactical decisions and responsibly represent
the client’s best interests], a trial judge still
has the basic duty of ensuring the fair conduct
of a criminal trial apart from lapses of counsel.
(at p. 509)
[40] In this case, it cannot be said that defence counsel’s
failure to object represented a tactical decision. It was, in my
view, more in the nature of the kind of “lapse” referred to in
the above-quoted passage from Hodgson, and cannot insulate from
review a significant decision by the trial judge affecting the
fairness of the trial.
b) Providing the jury with the Crown’s closing address
[41] The importance of a closing statement cannot be
underestimated. As the Supreme Court stated in R. v. Rose,
1998 768 (SCC), [1998] 3 S.C.R. 262:
… few would deny the powerful persuasive force
which well-crafted and skillfully presented
submissions may have in a jury trial. … (at p. 320)
… Although not all jury addresses are, in actuality,
either logically or rhetorically persuasive, there
can be no denying the role of a party’s persuasive
skill in influencing the result in some jury trials.
… (at p. 322)
[42] In their closing submissions, the Crown and defence marshal
the evidence and the arguments which support their respective
theories. Each tries to persuade the jury to find in their
favour based on the evidence, and reinforces these evidentiary
arguments with rhetorical ones.
[43] Although the Rose decision dealt with the constitutionality
of a requirement that the defence make its closing statement to
the jury first if it has called evidence, much of the analysis
dealt with the significance of closing statements to the jury.
As Rose common sensically confirms, a closing statement is
intended to have, and may very well have, persuasive effect.
[44] The closing statement of the defence , as Rose states,
serves a distinct purpose:
… The defence jury address is both a response to the
Crown’s evidence and a defence against the argument
and persuasion to be contained in the Crown jury
address. (at p. 319)
[Emphasis in original.]
[45] Given that the defence’s closing statement is both “a
response to the Crown’s evidence and a defence against the
argument and persuasion” contained in the Crown’s closing
statement, it seems logical to conclude that maintaining a
balanced deliberative process includes giving the jury the same
access to the defence’s closing statement that it has to the
Crown’s closing statement.
[46] The principle is well established that the jury should have
complete information in response to its questions. (See R. v.
M‰nard, 1998 790 (SCC), [1998] 2 S.C.R. 109; R. v. Keegstra (1994), 92 C.C.C.
(3d) 505 at 561 (Alta. C.A.), per Foisy J.A., dissenting,
affirmed, 1996 221 (SCC), [1996] 1 S.C.R. 458; Olbey v. The Queen, [1980] 1
S.C.R. 1008 at 1026-30; R. v. Ostrowski, 1990 116 (SCC), [1990] 2 S.C.R. 82 at
83, per Cory J.; R. v. Daly (1992), 57 O.A.C. 70 (C.A.) at 76;
R. v. Thomas (1987), 1987 2528 (BC CA), 20 B.C.L.R. (2d) 241 at 251-53 (B.C.C.A.),
per Lambert J.A.; R. v. D.D. (1998), 1998 14607 (ON CA), 129 C.C.C. (3d) 506 (Ont.
C.A.).
[47] In my view, there is no conceptual distinction between
giving the jury the benefit of all relevant, related aspects of a
witness’s evidence or of a judge’s charge despite its request for
only a portion, and giving the jury the benefit of all relevant,
related sides of the closing advocacy. If it is a requirement
that any portion of the evidence requested by the jury be
presented in a balanced way by the trial judge, then surely the
same duty should apply if it is one party’s version of the whole
of the evidence that is requested. Giving the jury only the
Crown’s version of relevant information without also giving the
defence’s responsive version could, without doubt, cause
prejudice to the accused.
[48] The following comments by Estey J. in Cathro v. The Queen,
1955 46 (SCC), [1956] S.C.R. 101, are analytically transferable to the issue in
this case, notwithstanding that they were made about a request
for a portion of the judge’s charge to the jury:
It may be that a section of the Code, or even a
small passage of a learned trial Judge’s charge,
with the consent of counsel concerned, may be
handed to the jury, but even then the question
must remain whether, in the circumstances, there
has been prejudice or miscarriage of justice.
Where, however, as here, the transcribed part of
the charge contains important references to the
evidence and contentions made on behalf of the
Crown, and but slight reference to the evidence
and none of the contentions on behalf of the
defence, there can be no doubt but that the
giving of such portion to the jury ought not to
be permitted. (at p. 115) [Emphasis added.]
(See also R. v. Hajian (1998), 1998 12685 (QC CA), 124 C.C.C. (3d) 440 (Que. C.A.);
R. v. Khela (1991), 1991 3117 (QC CA), 68 C.C.C. (3d) 81 (Que. C.A.); and R. v.
C.(R.A.) (1990), 1990 11039 (BC CA), 57 C.C.C. (3d) 522 (B.C.C.A.).
[49] The Crown’s closing statement to the jury in this case was
not a balanced review of the evidence, nor was it required to be.
Its purpose was to emphasize the evidence that supported the
Crown’s position that Ms. Ferguson should be found guilty of
murdering her husband. It was, therefore, as it was entitled to
be, an exercise designed to persuade the jury that, based on the
evidence available, it ought to infer Ms. Ferguson’s guilt.
[50] The issue, it seems to me, is not the content of the Crown’s
closing submission nor even its effectiveness. It is the reality
of its inevitably partisan character that is at issue, namely, a
final reminder to the jury of why the accused should be found
guilty as charged beyond a reasonable doubt. This, it seems to
me, argues for the countervailing balance of a refutation of
these arguments so that in a case such as this, the jury is
assisted as fully and fairly as possible in its deliberations.
The importance of maintaining not only the fact of a balance but
also its appearance, was stressed in Rose:
In the course of correcting the addresses of
counsel, the trial judge should deal in a fair
and balanced fashion with both sides of the case.
The curative instructions should not indicate that
the judge is favouring the arguments of one party
over another … (at p. 332)
[51] Far from interfering with the judge’s responsibility to
assist the jury by answering its questions fully and fairly,
providing the jury with both the defence and the Crown’s closing
statements complies with and enhances, rather than detracts from
this responsibility. The failure, on the other hand, to provide
the jury with the defence’s answers to the Crown’s arguments
risks, in this case, both an imbalance in the deliberative
process and the serious possibility of prejudice to the accused.
[52] In the case before us, the impact of providing only the
Crown’s closing statement to the jury was clearly prejudicial to
the appellant, especially given that the case turned on competing
inferences rather than direct evidence. Because the jury had a
copy of only the Crown’s closing statement and nothing from the
defence, the appellant lost an opportunity to which she was
entitled, to defend herself against the Crown’s case.
[53] One side argued forcefully that an accident occurred, and
the other alleged that there was an intention to kill. Given the
history of the relationship between the parties, the shooting
represented what appeared to be an anomalous event. The jury had
to weigh conflicting theories about what happened in the absence
of clear evidence or motive. For every argument the Crown made –
and effectively made - in its closing statement, the defence was
able in his closing address to provide a realistic explanation
and counter theory. It seems to me that in these circumstances,
it was imperative that the jury be left with both sets of
arguments.
[54] This is not a case where the proviso can be applied. The
error in giving the jury only the Crown’s closing address
affected the fairness of the trial, and it cannot, therefore, be
said that there was no substantial wrong or miscarriage of
justice.
[55] Based on the prejudice to the accused flowing from
permitting the jury to review a copy of only the Crown’s closing
statement, I would allow the appeal, set aside the conviction,
and order a new trial.
Released: February 14, 2000
“RSA”
“R.S. Abella J.A.”
“I agree K. Feldman J.A.”
LASKIN J.A. (dissenting):
[56] Abella J.A. concludes that giving the jury a transcript of
the Crown’s closing address affected the fairness of the trial.
In her view the jury also should have been given a copy of the
defence’s closing address. Abella J.A. would therefore set aside
the appellant’s conviction for second degree murder and order a
new trial.
[57] I disagree with my colleague’s conclusion. The jury asked
only for the Crown’s closing; they did not ask for the defence’s
closing. Both counsel, Crown and defence, agreed that the jury
should be given what they had asked for and nothing more. The
Crown’s closing address was quite short, it was not inflammatory,
indeed it was not even overly partisan. I am not persuaded that
giving the jury only the Crown’s address caused a miscarriage of
justice in this case.
[58] Although the effect of giving the jury a copy of the Crown’s
closing was the main ground of appeal, the appellant also argued
five other grounds of appeal. They were:
the verdict was unreasonable;
the trial judge erred in permitting the Crown to
lead the evidence of an expert on footprints
without first holding a voir dire;
- the trial judge erred in failing to admit a
videotaped statement made by the appellant;
- the trial judge erred in refusing to admit the
evidence of a defence expert on memory; and
- the trial judge erred in his instruction to the
jury on credibility.
I would not give effect to any of these additional grounds of
appeal. I would therefore dismiss the appellant's appeal from
her conviction. I will deal with these other grounds of appeal
before discussing the appellant’s main submission.
First Issue: Was the verdict unreasonable?
[59] Abella J.A. has adequately summarized the factual
background. As my colleagues would order a new trial, I will say
little more about the facts. The case focused on whether the
appellant or her husband David Rick Horne retrieved the rifle
from the basement, and on what happened in the bedroom during the
evening of Sunday, June 16, 1996. The defence’s theory was that
Mr. Horne went and got the rifle, and that the appellant
accidentally shot him with it during a struggle between the two
of them. The Crown’s theory, accepted by the jury, was that the
appellant went down to the basement, got the rifle, and took it
into the bedroom, where she deliberately shot her husband while
he lay in bed, likely asleep.
[60] To make out an unreasonable verdict the appellant must show
that no properly instructed jury could reasonably have convicted
her.1 The appellant argues that because the evidence of motive
was weak and because none of the Crown’s experts could rule out
her version of what happened, the verdict was unreasonable.
[61] I do not agree with the appellant’s submission. Although
the evidence of motive was weak the Crown otherwise presented a
strong case against the appellant. Not only were the Crown’s
experts very skeptical of the appellant’s explanation, their
testimony provided ample evidence on which a properly instructed
jury could convict the appellant.
[62] The following evidence supports the reasonableness of the
verdict: the rifle was in the appellant’s hands when it went
off; she owned the rifle and had been trained in how to use it;
the rifle could not discharge on its own; for the rifle to go off
5.5 lbs. of pressure had to be applied to the trigger and only
the appellant could have pulled the trigger; when Mr. Horne was
shot he was lying on his right side, or on his back, on the bed;
the amount of alcohol he had consumed – showing 254 mg of alcohol
in 100 ml of blood when he died – would have left him unsteady,
clumsy, uncoordinated and without fine motor skills, if not
asleep; yet for the appellant’s explanation to be true, Mr.
Horne, in just a few minutes, would have had to walk down two
flights of stairs, unlock the gun cabinet, take out the rifle,
unlock the ammunition drawer, load a single bullet into the
rifle, unlock and remove the trigger lock from the rifle, and
return up two flights of stairs; although the footprint evidence
was inconclusive, one thing was clear: none of the footprints was
made by Mr. Horne; when Mr. Horne was intoxicated and depressed,
as he was the evening he was killed, he was ordinarily “really
really quiet,” never violent. All of this evidence shows that
the conviction was reasonable. I would therefore dismiss this
ground of appeal.
Second Issue – Did the trial judge err in permitting the Crown to
lead the evidence of an expert on footprints without holding a
voir dire?
[63] The Crown led the evidence of an expert on footprints,
Sergeant Kennedy, to show that the appellant, not her husband,
retrieved the rifle from the basement of their home. Sergeant
Kennedy examined ten footprints in the basement area. He
concluded that neither Rick Horne nor his daughter made any of
the footprints. The appellant likely made three of the
footprints, could have made one other, and could not be ruled out
from having made the other six.
[64] The appellant submits that the trial judge erred in
admitting Sergeant Kennedy’s evidence without holding a voir dire
into his qualifications and into whether footprint analysis was a
recognized field of expertise. The appellant concedes that
defence counsel at trial did not object to the admissibility of
Sergeant Kennedy’s evidence, but argues that the trial judge
nonetheless should have scrutinized the evidence to ensure its
admission would not distort the jury’s fact finding process.
[65] I find no merit in this submission. Although no formal voir
dire was held, Sergeant Kennedy testified regarding his
qualifications and the international recognition accorded
footprint analysis and comparison as a field of expertise. This
evidence showed that since 1968 footprint analysis has been the
subject of expert opinion evidence in countries throughout the
world, including the United States and Canada, and that Sergeant
Kennedy is one of the Canadian experts in the field.
[66] Defence counsel asked Sergeant Kennedy no questions about
either his qualifications or his being able to express an opinion
on the ten footprints in question. Instead, in response to the
Crown’s request that Sergeant Kennedy “be allowed to give his
opinion evidence in the field of bare foot comparison,” defence
counsel said “I have no questions of this witness about his
qualifications, nor any argument to make.” Defence counsel, in
my view, recognized that Sergeant Kennedy’s opinion evidence met
the criteria for admissibility established by the Supreme Court
of Canada in R. v. Mohan.2 Indeed, two other appellate courts
have already accepted footprint analysis as an appropriate
subject for expert evidence.3
[67] Moreover, I have little concern that Sergeant Kennedy’s
evidence would have distorted the jury’s fact finding
deliberations. The evidence itself was inconclusive and the
trial judge suggested to the jury that it was “of questionable
significance.” I would not give effect to this ground of appeal.
Third Issue – Did the trial judge err in failing to admit a
videotaped statement made by the appellant?
[68] The appellant submits that the trial judge erred by allowing
the Crown to lead evidence of her statement to the police on the
evening of Mr. Horne’s death, without also requiring the Crown to
put in evidence the videotaped statement she gave the following
day. The appellant argues that the two statements were linked,
that they formed one narrative. If one went in, the other had to
go in too.
[69] The trial judge applied the proper principle in rejecting
this argument. He concluded, “[t]he two statements were not part
of one continuous statement. They were separated by time and
they were made in different circumstances. The second statement
was not related to the first. It was not so closely related to
the first as to form part of it.”4
[70] This conclusion is supported by the record. There was a
material gap in time between the two statements. The first was
made on the night of the shooting; the second was made the next
day. The intervening period gave the appellant adequate time for
reflection and preparation for her second interview. The two
statements were made in different places. The first was made at
the appellant’s home, the second at the police station. And the
two statements were made under different circumstances. When she
gave the first statement the appellant was not a target of the
investigation. By the time she gave the second statement, she
was a target and was therefore cautioned under s. 10(b) of the
Canadian Charter of Rights and Freedoms. For these reasons the
two statements did not form one narrative. Thus it was not
unfair to permit the Crown to introduce only the first statement.
[71] In this court the appellant made an alternative argument for
admitting her videotaped statement. She claimed that admitting
the statement would have given the jury an opportunity to assess
her explanation and her demeanor closer to the time of the
shooting, and therefore could have favourably affected the jury’s
assessment of her credibility. The appellant argued that because
she testified and could have been cross-examined on the
statement, no prejudice would have been caused by its admission.
As the Crown pointed out, however, this alternative argument for
admitting the statement offends the well-established rule against
using an accused’s previous consistent statement to bolster
credibility at trial. The rationale for the rule, applicable
here, is that the previous statement lacks probative value
because her explanation is not made more probable or trustworthy
by having repeated it..5 I would not give effect to this ground
of appeal.
Fourth Issue – Did the trial judge err in refusing to admit the
evidence of a defence expert on memory?
[72] When Crown counsel cross-examined the appellant he tried to
cast doubt on her credibility by showing that she could not
remember how she and her husband were positioned on the bed just
before the shooting. To rebut the Crown’s cross-examination, the
defence tried to lead the opinion evidence of a psychologist, an
expert on human memory. The psychologist’s proposed evidence was
that highly charged or emotional events may not be remembered
clearly or in detail. The trial judge, however, ruled the
evidence inadmissible, relying on this court’s decision in R. v.
McIntosh,6 and concluding that the psychologist’s proposed
evidence “is not outside the normal experience of jurors.”
[73] In my view, the trial judge’s ruling was reasonable. His
ruling turned on one of the Mohan criteria for the admissibility
of opinion evidence, “that the opinion be necessary in the sense
that it provides information which is likely to be outside the
experience and knowledge of a judge or jury.”7 The
psychologist’s proposed expert evidence did not meet this
criterion. The appellant did not suggest that she had any
unusual difficulty in remembering past events. The inability to
recall details of highly charged incidents is something we all
experience. Indeed, the trial judge so charged the jury, in
terms favourable to the appellant:
If they were struggling over the gun, it may be
that you may not find it surprising that Miss
Ferguson cannot recite every minute detail of
the incident. If it occurred as she said it did,
would it not be, for her, stunning and shocking?
Such a state of mind may not be conducive to a
precise recall of all of the details, particularly
if she had been drinking before the incident occurred.
I would not give effect to this ground of appeal.
Fifth Issue – Did the trial judge err in his instruction to the
jury on credibility?
[74] The appellant submits that the trial judge left the jury
with the erroneous impression they could convict her even if they
believed her version of what occurred. In support of this
submission the appellant relies on the following passage in the
trial judge’s charge:
Whether or not you believe Miss Ferguson, it is
only after you review all of the evidence and
conclude that the Crown has proved to you beyond
a reasonable doubt that Mr. Horne’s death was not
the result of an accident, that you will then
consider whether the Crown has proved that Miss
Ferguson had the intent which is an essential
element in a conviction for murder …
[75] This instruction is not obviously wrong. How the jury
interpreted it likely depends on the way the trial judge said the
words. What he undoubtedly intended to tell the jury was that
even if they did not believe the appellant, they could convict
her only if on their review of the evidence the Crown had proved
its case beyond a reasonable doubt.
[76] However, even if this passage might have been clearer, the
rest of the charge contains numerous correct references to the
burden on the Crown. To take but two examples, early in his
charge the trial judge accurately instructed the jury how they
must deal with the appellant’s evidence and the Crown’s burden of
proof:
In connection with the evidence given by Miss
Ferguson I charge you in this way. She is in
the same position as any other witness in the
matter of credibility. If you believe her
evidence that she did not commit the offence,
or if her evidence standing alone or together
with the other evidence, leaves you in a state
of doubt, you must acquit her. But if upon a
consideration of all of the evidence, the
arguments of counsel and these remarks of mine
you believe that Miss Ferguson has been proven
guilty beyond a reasonable doubt as I have
defined it to you, it is your duty to convict
her.
This instruction complied with the Supreme Court of Canada’s
directive in R. v. W.(D.).8
[77] Then, near the end of his charge the trial judge properly
warned the jury against convicting the appellant simply because
it preferred the Crown’s version of what occurred:
What happened in the bedroom is decisive. Counsel
have placed the case before you with clarity and
with imagination. The issues are clearly drawn.
However, where the Crown argues that a certain
thing or series of things occurred, and the accused
argues that something completely different occurred,
there is a tendency to say or think, “which one do
I prefer”, as if your verdict depended on that
answer. Because this is a criminal case, and the
onus is on the Crown to prove its case beyond a
reasonable doubt, that is not the correct approach.
In this case, as in any criminal case, the only
correct approach in question form is this. Has the
Crown proved its case beyond a reasonable doubt?
If it has, you will convict Miss Ferguson. If it
has not, you must acquit her.
I would not give effect to this ground of appeal.
Sixth Issue – Did the trial judge err by giving the jury a copy
of the Crown’s closing address?
[78] The appellant’s main submission is that the trial judge
erred by giving the jury a transcript of the Crown’s closing
address. Either the trial judge should have refused the jury’s
request for the transcript or he should have given the jury a
transcript of both the Crown’s closing and the defence’s closing.
Giving the jury only the Crown’s closing, the appellant submits,
was so prejudicial that it resulted in a miscarriage of justice.
[79] To put this submission in context I will briefly outline
what occurred. The trial judge completed his charge at noon on
May 22, 1998, and the jury retired. Both counsel made brief
submissions on the charge and the trial judge then said that he
was not going to re-charge the jury. At 2:40 p.m. the jury asked
for a copy of the trial judge’s instructions on manslaughter.
Both counsel agreed that the jury should have these instructions
in writing and the court reporter was asked to prepare the
transcript.
[80] At 4:33 p.m. the jury asked for “the transcript of the
Crown’s closing statement.” The trial judge then spoke to the
reporter, who said preparing the transcript would take one and
one-half to two hours. The trial judge observed that reading the
Crown’s closing would take much less time. He suggested to
counsel that the jury be asked whether they wanted the transcript
or just wanted the closing read to them. Both counsel agreed
that the jury should be given the choice. The trial judge then
said, “and in either case we’ll accede to their request. Is that
agreed?” Each counsel expressly said “yes.” Neither counsel
suggested that the jury also be read or be given a copy of the
defence’s closing address. The jury retired and returned in a
few minutes to say that they wished the transcript. The court
reporter was asked to prepare it and the jury took their dinner
break.
[81] The court reconvened at 7:45 p.m. Each juror was given a
copy of the trial judge’s instructions on manslaughter and the
Crown’s closing address. The jury then deliberated until 9:30
p.m. but could not reach a verdict. They continued their
deliberations the following morning just after 9:00 a.m. Again,
neither counsel, nor for that matter the trial judge, raised any
concern about the jury having only the Crown’s closing. The jury
deliberated until 11:40 a.m., when they announced they had
reached their verdict convicting the appellant.
[82] I begin my discussion of the appellant’s submission with
four propositions, which I do not believe are controversial.
First, the trial judge was obliged to assist the jury in response
to their request for the Crown’s closing. He would have
committed a reversible error had he ignored their request.9
[83] Second, although the trial judge could have read the closing
address to the jury or reviewed it with them, he did not err in
law by giving them a transcript. In both R. v. Cathro10 and R. v.
Menard,11 the Supreme Court has recognized that giving the jury
transcripts, though raising concerns in some cases, is not in
itself an error, particularly where, as in the present case,
counsel consent.
[84] Third, when the jury asks for one counsel’s closing address
the trial judge is not required in law to give the jury the
closing addresses of other counsel, even if there is more than
one accused on trial. I expect that many trial judges, if faced
with the request from the jury made to the trial judge in this
case, would have given the jury copies of both closings or at
least canvassed with counsel the desirability of doing so.12 It
may well have been preferable had this trial judge done so.
Nonetheless, he did not err in law by giving the jury only the
Crown’s closing, even acknowledging that the position of the
Crown and the defence are not always identical because of our
concern for the rights of the accused.
[85] In R. v. Khela and Dhillon13 two accused were charged with
conspiracy to commit murder. After hours of deliberation, the
jury asked to listen to the addresses of Crown counsel and
counsel for one of the accused. The trial judge refused the
jury’s request. The Quebec Court of Appeal held that the trial
judge erred in doing so. Proulx J.A. wrote at p. 95:
The jury, having specifically asked for only one
of the two summations of defence counsel, showed
their preoccupation on certain aspects of the case
and their need for assistance. Perhaps it was a
device to refresh their memory, to clarify confusion
or to better understand some of the issues. The trial
judge’s role, at this stage, was to give assistance to
the jury in order to facilitate its task in the
determination of the proper verdict. Counsel’s
addresses are an important part in the trial process
and, with due respect, I see no reason why such a
request from a jury should not be granted unless it
is not feasible. Judges themselves, sitting without
a jury, do often request counsel to repeat some parts
of their summation or even order that counsel’s
summations be transcribed though they take notes
during the hearing of the summations; why then would
the summation not be made available to a jury who
demands it?
He therefore concluded, “that as a matter of principle, a
counsel’s submission may be read back at the request of the jury,
within the limits of reasonableness and feasibility.” Proulx
J.A. recognized that the jury had asked only to listen to the
Crown’s closing and the closing of one of the defence counsel but
not the other. He saw nothing necessarily wrong with complying
with the jury’s request:
In such a situation … the trial judge could have
granted that request or, depending on the
circumstances of the case, ordered that the
other defence counsel’s summation also be read
back to the jury.14
In short complying with the jury’s request for a copy of one
side’s closing is not an error of law.
[86] Fourth, however, giving the jury one side’s closing, in a
particular case, may be so unfair or may create a sufficient
appearance of unfairness that it results in a miscarriage of
justice under s. 686(1)(a)(iii) of the Criminal Code. The
important point is that whether there is a miscarriage of justice
is a fact-driven inquiry. The court must examine the
considerations relevant to each case to decide whether a
miscarriage has occurred.
[87] Did giving the jury a transcript of the Crown’s closing
cause a miscarriage of justice in this case? I do not think that
giving the jury the transcript caused any unfairness. The trial
judge could have simply reviewed the closing with the jury
instead of giving them a transcript of it.15 But the jury asked
specifically for the transcript and both counsel agreed that they
should have it. The appellant did not put forward, either at
trial or on appeal, any cogent reason for refusing their request.
[88] The important question, therefore, is whether failing to
give the jury a transcript of the defence’s closing as well,
caused a miscarriage of justice. As I said earlier it might have
been preferable had the trial judge given the jury a copy of the
defence’s address. In my view, however, his failure to do so was
not so unfair that it caused a miscarriage of justice. I rely on
the following seven considerations in support of my view.
[89] First, giving the jury the Crown’s closing responded
directly and completely to the jury’s request. I do not think
the court should readily assume that the jury would read material
they did not ask to see. In a judge alone trial, trial judges
are entitled to review their notes or obtain the transcript of
one side’s closing only.16 When the jury is the trier of fact,
jurors should be able to obtain the same assistance.
[90] Second, although closing addresses are undeniably an
important part of a jury trial,17 they are not evidence. Yet,
even when the jury asks for a review of evidence, the kind of
balance argued for by the appellant is not ordinarily required.
Take a case, for example, in which the Crown and the defence both
called a ballistics expert. If the jury asks for a review of
certain points in the evidence in-chief of the Crown’s expert,
the trial judge ordinarily is required to review the cross-
examination on those points to ensure that the jury is given all
the evidence of the witness on the points they wanted reviewed or
clarified. But the trial judge is not ordinarily required to
review the competing evidence of the defence expert.18
[91] Third, although important, closing addresses of counsel
cannot be equated with instructions from the trial judge.
Because the trial judge occupies a special position of authority
in a jury trial, appellate courts insist that the charge to the
jury be fairly balanced and that any review of a part of the
charge requested by a jury be similarly balanced. The trial
judge’s position of authority and neutrality goes a long way to
explain Estey J.’s observation in Cathro, relied on by Abella
J.A. Moreover, in Cathro, Estey J. had two concerns not present
in the case before us: in Cathro, the instructions on the law,
which the trial judge gave the jury, were both incomplete and
inaccurate, and the contentions of the Crown and evidence
supporting those contentions, which were given to the jury, were
not even asked for by them. Abella J.A. states that Estey J.’s
comments may be applied to this case. I disagree. We expect a
judge’s charge to be correct, complete and balanced. We expect
counsel’s closing address to be partisan and the jury would
recognize it to be so. Indeed, the trial judge instructed the
jury that “[i]f you do not agree with counsel’s comment on a
fact, disregard that comment. Counsel’s belief about the facts
is irrelevant. If counsel has inadvertently given you his
opinion, you must ignore that opinion.”
[92] Fourth, the position of defence counsel at trial provides an
important barometer of the extent of any prejudice. Here,
defence counsel did not merely fail to object. He expressly
agreed to giving the jury only the Crown’s closing. The
appellant does not suggest that her trial counsel was either
incompetent or inexperienced. I recognize even the most
experienced trial counsel may, in the heat of the moment,
overlook something that in retrospect counsel should have raised
at the time. In this case, however, defence counsel had
overnight to reflect on his position, and still did not insist or
even ask that the jury be given a copy of his closing. Of
course, defence counsel’s failure to intervene at trial is not
fatal on appeal. But a failure to intervene takes on greater
significance when the point in issue is not a misdirection in
law, or an inaccurate or incomplete review of the evidence. In
the dynamics of this trial, defence counsel did not regard
complying with the jury’s request as being unfair. Nor did the
trial judge, who is both very experienced and highly regarded.
[93] Fifth, this was a circumstantial case, which in large part
turned on an assessment of the expert evidence. Thus a reliable
verdict depended on the jury being able to appreciate fully the
position of the Crown and the defence. The defence theory was
simple: the appellant accidentally shot her husband during a
struggle. In defence counsel’s lengthy closing he reviewed in
great detail the evidence supporting this theory. The trial
judge, too, summarized for the jury the main points for the
defence, noting as well several weaknesses in the Crown’s case –
the weak motive, the inconclusive footprint evidence, and the
concession by the Crown’s experts concerning the defence theory.
It seems to me we should assume that the jury understood the
defence theory and the evidence in support of it. We do not know
why the jury asked for a copy of the Crown’s closing, but likely
they needed to refresh their memory on some aspect of the Crown’s
position or they needed to clarify a point on which they were
uncertain. They obviously needed no further assistance in
appreciating the defence position.
[94] Sixth, the Crown’s closing address was quite brief,
occupying only 20 transcript pages. It was not inflammatory, nor
indeed overly partisan, but instead was a straightforward review
of some of the evidence supporting the Crown’s theory that the
appellant intentionally shot her husband. Having the transcript
of the Crown’s closing was not suddenly and immediately
conclusive for the jury, who deliberated another four hours,
including the evening they received it and the following morning,
before reaching their verdict.
[95] Seventh, insisting that the jury be given a copy of the
defence’s closing address when they did not ask for it, is, in my
view, an affront to their common sense. Time and again judges
pronounce that the strength of our criminal justice system rests
on the intelligence and common sense of the ordinary juror. For
example, in R. v. Corbett,19 Dickson C.J.C., in discussing the
jury’s use of an accused’s criminal record, wrote:
In my view, it would be quite wrong to make too much
of the risk that the jury might use the evidence for
an improper purpose. This line of thinking could
seriously undermine the entire jury system. The
very strength of the jury is that the ultimate issue
of guilt or innocence is determined by a group of
ordinary citizens who are not legal specialists and
who bring to the legal process a healthy measure of
common sense. The jury is, of course, bound to
follow the law as it is explained by the trial judge.
Jury directions are often long and difficult, but
the experience of trial judges is that juries do
perform their duty according to the law.
[96] If we judges are going to pay more than lip service to
these pronouncements, then it seems to me in a case like this we
should trust that the jury knows what they are doing when they
ask for one side’s closing, but not the other side’s. This is
not a case in which the jury was misdirected on the law or given
an inaccurate review of the evidence. Nor is this a case where
the defence requested that their closing be placed before the
jury. I do not understand how an otherwise error-free trial can
become irretrievably tainted because the trial judge, in the
exercise of his discretion, and with counsel’s consent, complied
with the jury’s request for assistance.
[97] I conclude therefore that neither the fairness nor the
appearance of fairness of this trial was so compromised that a
miscarriage of justice occurred. I would not give effect to this
ground of appeal.
CONCLUSION
[98] I would dismiss the appellant’s appeal from her conviction
for second degree murder.
“John Laskin J.A.”
1 R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168.
21994 80 (SCC), [1994] 2 S.C.R. 9.
3 See R. v. Neilson and Stolar (1984), 1984 40 (MB CA), 16 C.C.C. (3d) 39 (Man.
C.A.); and R. v. Legere (1994), 1994 3851 (NB CA), 95 C.C.C. (3d) 139 (N.B.C.A.), in
which Sergeant Kennedy was an expert witness.
4 See R. v. Jackson (1980), 1980 2945 (ON CA), 57 C.C.C. (2d) 154 (Ont. C.A.); and
R. v. Bihun, 1965 788 (MB CA), [1965] 4 C.C.C. 45 (Man. C.A.).
5 See R. v. Campbell (1978), 17 O.R. (2d) at 685-686 ( C.A.).
6 (1997), 1997 3862 (ON CA), 35 O.R. (3d) 97 (C.A.)
7 supra, at p. 23.
81991 93 (SCC), [1991] 1 S.C.R. 742.
9 See R. v. S. (W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521 at 528-531.
10 1955 46 (SCC), [1956] S.C.R. 101.
11 1998 790 (SCC), [1998] 2 S.C.R. 109 at 125.
12 See R. v. Smith, Sauve and George (1975), 1975 1384 (BC CA), 25 C.C.C. (2d) 270
(B.C.C.A.) and R. v. C.(R.A.) (1990), 1990 11039 (BC CA), 57 C.C.C. (3d) 522
(B.C.C.A.).
13 (1991), 1991 3117 (QC CA), 68 C.C.C. (3d) 81 (Que.C.A.); appeal on other grounds
allowed in part 1995 46 (SCC), [1995] 4 S.C.R. 201.
14 See also R. v. Hajian (1998), 1998 12685 (QC CA), 124 C.C.C. (3d) 440 (Que. C.A.)
and R. v. Tremblay, [1997] A.Q. No. 2905 (C.A.).
15 See R. v. A. (J.) (1996), 1996 1201 (ON CA), 112 C.C.C. (3d) 528 (Ont. C.A.) where
Labrosse J.A. observed that although the trial judge must assist
the jury, the form of assistance is within the judge’s
discretion.
16 See for example R. v. Corriveau (1985), 1985 3550 (ON CA), 19 C.C.C. (3d) 238
(Ont. C.A.); and R. v. A. (J.), supra.
17 R. v. Rose, 1998 768 (SCC), [1998] 3 S.C.R. 262, referred to by Abella J.A. in
her reasons.
18 See R. v. Callaghan (1991), 1991 7234 (ON CA), 9 C.R. (4th) 264 (Ont. C.A.); and
R. v. Pelletier (1986), 1986 1179 (BC CA), 29 C.C.C. (3d) 533 (B.C.C.A.).19 [1988]
1 S.C.R. 670 at 692.