DATE: 20010117

DOCKET: C13744

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., CHARRON AND MacPHERSON JJ.A.

BETWEEN: )

HER MAJESTY THE QUEEN ) Christopher Hicks and

) Carol Cahill

(Respondent)) for the appellant

and )

MARK EDWARD GEORGE WELLS ) Renee M. Pomerance and

) John Hanbidge

(Appellant) ) for the Respondent

) Heard: November 2

) and 3, 2000

On appeal from the conviction dated October 24, 1991 of Justice John McGarry, sitting with a jury, and the sentence dated November 12, 1991.

McMURTRY C.J.O.:

OVERVIEW

[1] The appellant was convicted on October 24, 1991 of two counts of first degree murder and two counts of second degree murder by McGarry J. sitting with a jury.

[2] The convictions related to the murder of four people on June 15, 1990 in Woodstock, Ontario. The first offence involved the murder of Christine Tansley in her home and the other offences related to the murders of Annette Norman and her two children in their home.

[3] The body of Christine Tansley was found at 8:30 a.m. on June 15, 1990. The bodies of Annette Norman and her two children were found on June 16, 1990 at approximately 8:30 a.m.

[4] On June 14, 1990, the appellant told two of his friends that he was angry and upset with his girlfriend and that “he felt like killing someone”.

[5] It was the theory of the Crown that the appellant attended at Christine Tansley’s home in the early morning hours of June 15, 1990 and demanded sex. The sexual advances of the appellant were resisted and as a result, Ms. Tansley was beaten and ultimately strangled.

[6] It was also the Crown’s theory that following the murder of Christine Tansley, the appellant was desperate to obtain money so that he could leave Woodstock. He attended at Annette Norman’s residence, tied her up and sexually assaulted her. The two young sons (“the Norman Boys”) of Ms. Norman came home during the attack and they were brutally murdered.

[7] The Crown introduced evidence to the effect that the appellant had told two prostitutes that he had “killed two women ‘cause they were stupid bitches’… and that he had sliced the two boys” throats because they had seen him kill their mother. An Inspector with the Woodstock Police Department who was in charge of the release of information surrounding the appellant’s case testified that the only information with respect to the death of the Norman Boys released to the public was that they died of stab wounds. No mention was ever made to the effect that their throats were slashed or where the stab wounds were located.

[8] The appellant was arrested in Calgary on June 22, 1990 and questioned by two Ontario police officers. The appellant voluntarily provided the officers with samples of hair and blood. The appellant submitted on the appeal that his statements and the forensic evidence related to his bodily substances should not have been admitted at trial. There were various witnesses who were able to establish a relationship between the appellant and the deceased Christine Tansley and the appellant and the deceased Annette Norman and her children at times prior to the murders.

[9] The appellant did not testify.

FORENSIC EVIDENCE

[10] There was forensic evidence admitted at the trial linking the appellant to both of the crime scenes as follows.

(i) Murder of Christine Tansley

[11] The appellant’s finger prints and palm prints were detected on a Labatt’s Blue beer box which was located in the deceased’s kitchen. In addition, the appellant’s palm print was found on one of the empty beer bottles. Prints in respect of four of the appellant’s fingers were detected on a potato chip bag in the kitchen.

[12] There were two sources of blood on the deceased’s jeans, one of which was consistent with that of the deceased and the other of which was consistent with having come from the appellant. The blouse believed to have been worn by the deceased at the time of her murder contained a blood sample which was consistent with the blood type of the appellant and inconsistent with that of the deceased. Furthermore, there was a blood stain on a post outside of the deceased’s apartment which was consistent with having come from the appellant. Various individuals who saw the appellant after the homicide testified that they had observed a relatively fresh injury on the appellant’s hand. It was the theory of the Crown that the appellant had been injured during the course of a struggle with the deceased Christine Tansley.

[13] When the appellant left Woodstock, he left a number of items behind in the hotel room which had been his residence. One of the items was a T-shirt which was found to contain blood stains consistent with the blood of the deceased Tansley and inconsistent with that of the appellant. DNA testing revealed that the stains on the T-shirt matched the DNA of the deceased at three probes. In addition, a pair of blue jeans with blood consistent with that of the deceased, Christine Tansley, was found.

(ii) The Norman Murders

[14] A beer bottle was discovered underneath the leg of Annette Norman and two of the appellant’s fingerprints were found on the outside of the bottle. A witness who lived with the Normans testified that when she left the residence on June 15, 1990 there were no beer bottles in the bedroom where the body of Annette Norman was discovered. Furthermore, the evidence established that the beer in question was not manufactured until May 1990 and therefore the fingerprints could not have been placed by the appellant at the time that he suggested in his statement to the police.

[15] A foreign pubic hair was detected on the right front thigh of Annette Norman’s body which was found to be consistent with having come from the appellant. A number of blood stains in the Norman bathroom were found to be consistent with having come from the appellant and inconsistent with that of any of the three deceased Normans. There was also a DNA analysis of a white blood stained towel found at the foot of Annette Norman’s bed which matched the appellant’s DNA at four probes.

THE QUESTIONING BY THE POLICE

[16] When the appellant was arrested at the Greyhound bus station in Calgary, he was cautioned by one of the arresting officers as follows:

You are under arrest for first degree murder. Do you wish to say anything in answer to the charge. You are not obliged to say anything unless you wish to do so, but whatever you do say may be given in evidence. Do you understand that?

[17] The appellant was then advised of his right to counsel as follows:

Q. Mark, you have the right to retain and instruct legal counsel without delay. You can call any lawyer you want or you can call Legal Aid. Do you understand that.

A. Yeah.

Q. Do you know what Legal Aid is.

A. Yeah.

[18] Upon arrival at the police station, the appellant asked to speak to a lawyer. He was provided with a list of lawyers provided by the Legal Aid Society of Alberta who are on call 24 hours a day for consultation in criminal cases. When the appellant indicated that he did not know any of the lawyers on the list, he was advised by one of the officers that he recognized the name of one lawyer who was a former Crown prosecutor. The appellant stated, “that’s who I want. If he’s ex-Crown he must be good”. The appellant was then permitted to call the lawyer in private and shortly after advised one of the police officers that he had spoken with counsel.

[19] Shortly thereafter, two police officers arrived from the Woodstock Police Department. About an hour later, the following recorded exchange took place between the appellant and the interrogating officer:

L.(Officer Lee): Now Mark, we’ve just arrived from Ontario.

W. (Wells): Um Hm.

L. and regardless of anything that has occurred to you today, I want you to understand this, you are under arrest for two counts of murder in the first degree (Wells exhales) and two counts of murder in the second degree. (Wells grunts.) The first degree murder counts involve the deaths (Wells exhales) of Annette Norman and Christine Tansley, late of the City of Woodstock in Ontario, the second degree murder counts involve the deaths of Richard and Christopher Norman, late of Woodstock, Ontario. Mark, you are charged with first degree murder, two counts, and second degree murder, two counts. It’s my duty to inform you that you have the right to retain and instruct counsel without the [sic] delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid plan for legal assistance. Do you understand those Rights?

W. Yes sir.

L. What do you think those Rights entitle you to do Mark?

W. To keep my mouth shut before I talk to a lawyer.

L. Do you wish to call a lawyer now?

W. There’s only one a [sic] know and I called one today and he said for me to wait until I got back to Ontario and see my lawyer in Ontario. That’s what I wish to do before I make any statements.

L. Do you wish to call a lawyer now?

W. No sir.

L. You are not obliged to say anything unless you wish to do so.

W. No sir.

L. But whatever you say will be taken down in writing and may be given in evidence. Do you understand the charge?

W. Yes sir.

L. The caution that I gave you, what does it mean to you?

W. It means I’m entitled to an attorney to be present during questioning.

L. You realize that you are not obliged to say anything unless you wish to do so.

W. Yes sir.

L. But whatever you say will be taken down in writing and may be given as evidence. Do you understand that?

W. Yes sir.

L. What does that mean?

W. That means that if I say anything to you it will, it could be ah put in the court as evidence.

L. You understand that?

W. Yes sir.

L. If you have spoken to any police officer or to any one with authority, or if any such person has spoken to you in connection with this case, I want it clearly understood that I do not want it to influence you in making any statements. Do you understand the Secondary Caution?

W. Yes sir.

L. And what does that mean?

W. Ah nobody’s talked to me about anything except when I was arrested at the bus depot, they read me my rights, that was all.

L. Do you understand that I do not want that conversation to influence you in making any statements?

W. Yes sir.

L. And do you know what I mean when I say that?

W. Ah whatever they said to me it’s not supposed to make me say anything, or do anything I do not want to.

[20] The appellant was then told by one of the officers that they wished to ask him a number of questions about the murders and the appellant replied “no comment” on thirteen occasions. The tape recorder was then turned off. According to evidence by one of the officers, the appellant appeared more relaxed and less stressed once the tape recorder was turned off. A general discussion continued for about half an hour and then the appellant was asked if he would voluntarily provide hair samples to the officers.

[21] When one of the officers put on a pair of plastic gloves for the purpose of collecting hair from the appellant, the appellant grabbed a handful of hair from the right side of his head. He was then asked if he would provide a sample of hair from the left side of his head and the appellant collected a sample and put it in the collection bag. The same procedure led to the collection of a hair sample from the back of the appellant’s head. When the appellant was asked for a sample of pubic hair, he obtained the samples without any interaction by either of the police officers. The appellant also agreed to provide a blood sample for the officer.

[22] Approximately an hour after the hair and blood samples were provided, the officers returned to the interview room with the tape recorder and embarked upon a further conversation with the appellant. The circumstances of the police investigation were explained and the appellant appeared to get more and more agitated as the discussion focussed on the details of the murders. The appellant again expressed a desire to speak with a lawyer during the following exchange:

Q. (Sigh) Mark tell me why you killed Christine Tansley.

A. Conversation stops there until I see a lawyer.

Q. Would you like to see a lawyer.

A. I gonna have to now.

Q. Would you like to call one?

A. Sure.

Officer: I don’t mind.

Appellant: Cause I co-operated all the way up to now, no more, not, not when you throw shit like that around.

Officer: Alright wait, we’ll get you a list and a telephone.

[23] The officers took the appellant to a private room and permitted him to call a lawyer in private which he did. After the appellant’s phone call with a Calgary lawyer, the officers attempted to continue the interviews with the appellant. Throughout this particular period, the appellant was quite adamant that he did not wish to co-operate in any fashion until he had an opportunity to speak with his lawyer in Ontario.

[24] During the voir dire at the trial, one of the officers was asked why he had continued to question the appellant when he knew that the appellant wanted to wait until he got back to Ontario and saw his Ontario lawyer. The officer replied that “I accept that he didn’t wish to speak with me, but I wanted to speak with him”.

[25] It was also elicited from the officers during the voir dire that a consent form had been prepared but the appellant was not asked to sign the form prior to the taking of the samples. At a later time, the appellant was asked to sign the consent form but he refused stating “No, I want to speak to my Ontario lawyer. I want to speak to John Park”.

[26] The appellant did not testify during the voir dire.

[27] On the voir dire, the Crown adduced evidence that the appellant had had prior experiences as a participant in the criminal investigative process. In 1979 the appellant was investigated in connection with a robbery, rape and attempted murder. On that occasion, he gave three statements following his arrest, provided hair and saliva samples for comparison purposes and after the forensic analysis he pled guilty to the charges. On another occasion, in 1989, the appellant was arrested on other charges, cautioned and advised of his right to counsel.

RULING ON VOIR DIRE

[28] The trial judge held that the interviews conducted by the police in Calgary did not breach any of the appellant’s Charter rights prior to the final interview. However, McGarry J. held that the actions of the officers in continuing the interview after the appellant had adamantly expressed the view that he did not wish to co-operate in any fashion until he had an opportunity of speaking with his lawyer in Ontario violated s. 7 of the Charter. The trial judge’s ruling with respect to this final interview is not in issue on this appeal.

[29] With respect to the bodily samples, the trial judge held that “s. 8 of the Charter had not been contravened and that the warrantless seizure of the samples took place with the full consent of the accused”.

SEARCH AND SEIZURE

[30] At trial, counsel for the appellant did not challenge the validity of the search of the appellant’s hotel room. Accordingly, there was no voir dire directly dealing with this issue.

[31] The appellant was a resident of the Oxford Hotel from December 1989 until June 1990. On June 17, 1990, the police attended at the Oxford Hotel in search of the appellant. The hotel manager opened the door to the room that had been occupied by the appellant and no one was there. A pair of jeans and a T-shirt, that had blood on them, were observed. On June 18, 1990, the police again attended the hotel room without a warrant. They again entered the room and again nothing was disturbed. Later the same day the police returned to the hotel room and it was agreed with the hotel manager that the police could rent the hotel room. The items in the hotel room were collected which included the T-shirt and the pair of jeans that had blood on them. It was only after the police had brought the items to the police storage area that a search warrant was obtained.

[32] During the course of the appellant’s submissions, counsel conceded that Charter arguments could not be raised for the first time on appeal particularly where such issues require a proper evidentiary and factual basis. Counsel advised the court that for the purposes of this appeal the validity of the search was raised as being relevant to the appellant’s allegation that he had ineffective assistance of counsel at trial as counsel should have objected at trial to the admissibility of the items seized from the hotel room.

ISSUES RAISED BY THE APPELLANT

[33] The appellant raised the following six grounds of appeal against the conviction:

i) that the trial judge erred in finding that there was no breach of the appellant’s ss. 8 and 10(b) Charter rights in relation to the appellant’s statement to the police in Calgary and in relation to the seizure of bodily samples;

ii) that the trial judge’s charge to the jury on reasonable doubt was inadequate, in view of the recent judgments of the Supreme Court of Canada in R. v. Lifchus (1997), 118 C.C.C. (3d) and R. v. Starr, 2000 SCC 40, [2000] S.C.J. 40;

iii) that the trial judge should have severed the counts;

iv) that the incompetence of counsel resulted in a violation of the appellant’s rights to the effective assistance of defence counsel as guaranteed under ss. 7 and 11(d) of the Charter;

v) that the trial judge erred in not charging the jury as to similar fact evidence; and

vi) that the trial judge failed to give a Vetrovec warning with respect to the evidence of the jailhouse informant.

THE LAW

(i) SECTION 10(b) AND SECTION 8 OF THE CHARTER

[34] The appellant was promptly informed of his right to counsel and consulted with counsel shortly after his arrival at the Calgary police station. He was again advised of his right to counsel at the outset of his interview with the officers from Woodstock, Ontario. He was told “you have the right to telephone any lawyer you wish”. The appellant was then asked “Do you want to call a lawyer now” and replied “No sir”.

[35] The appellant submits that the police were obliged to refrain from questioning him until such time as he was returned to Ontario and was given the opportunity to speak with a lawyer in that province.

[36] The purpose and scope of the right to counsel at the time of detention was described by McLachlin J. in R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) 1 (S.C.C.) at p. 35:

The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is the right to silence. The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtain appropriate advice with respect to the choice he faces: Read together, ss. 7 and 10(b) confirm the right to silence in s. 7 and shed light on its nature.

The guarantee of the right to consult counsel confirms that the essence of the right is the accused’s freedom to choose whether to make a statement or not. The state is not obliged to protect the suspect against making a statement; indeed it is open to the state to use legitimate means of persuasion to encourage the suspect to do so. The state is, however, obliged to allow the suspect to make an informed choice about whether or not he will speak to the authorities. (emphasis added)

and at p. 41:

First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence.

[37] In R. v. Mayo (1999), 1333 C.C.C. (3d) 168, this court held that the passage cited above from Hebert stands for the proposition that the Charter does not guarantee an adult offender the right to have a lawyer present during questioning. Justice Rosenberg held at p. 176:

Since the appellant did not have the right to have counsel present during questioning, the officer was not obliged to cease questioning the appellant in the face of such a request. Accordingly, the appellant’s rights were not infringed merely because the officer continued to question the appellant.

[38] It is a reasonable inference to assume that the Calgary lawyer had advised the appellant that he had the right to remain silent. There is ample evidence to demonstrate that the appellant understood his rights and that he made an informed and conscious decision to co-operate with the police during the initial interview and request for bodily substances.

[39] At the outset of his interview with the Ontario officers, the appellant was asked what he thought his rights entitled him to. He responded “To keep my mouth shut before I talk to a lawyer”, and “it means that I’m entitled to an attorney to be present during questioning”. When asked if he understood the secondary caution, he responded “whatever they said to me it’s not supposed to make me say anything, or do anything I do not want to”.

[40] The appellant was well aware of his right to refuse to co-operate and replied “no comment” on thirteen occasions in response to police questioning.

[41] With respect to the providing of the bodily samples, the appellant offered the samples to the officers immediately upon request. The transcript of the conversation with the appellant (after he supplied the hair and blood samples) included the following exchange:

Q. You have no objection to pulling your hair out for us.

A. No.

Q. Or giving us your blood.

A. No.

[42] The police interview with the appellant continued after the taking of the bodily samples and concluded with these exchanges between the appellant and the officers:

Q. Tell me why you killed Christine Tansley.

A. Conversation stops there till I see a lawyer.

Q. Would you like to see a lawyer.

A. I gonna have to now.

Q. Would you like to call one.

A. Sure. Cause I co-operated all the way up to now, no more, not, and when you want to throw shit like that around.

[43] It is abundantly clear that the appellant was co-operating with the police both during the interviews and the provision of the bodily samples. Furthermore, this co-operation was an informed, conscious and deliberate choice. The appellant was aware that he could refuse to co-operate at any time. At all material times, the appellant was given a reasonable opportunity to consult counsel. The police were not obliged to importune the appellant to call a lawyer particularly when he wanted to wait until he got back to Ontario to see particular legal counsel. In the circumstances, the police were not required to defer their investigation of the appellant until they all returned to Ontario.

[44] With respect to the bodily samples, it is clear that the appellant not only knew that he had the right not to do anything that he did not want to do, he also appreciated the potential consequences of providing such samples. He was fully aware of the jeopardy which he faced. During his discussion with the police officers, he was told that various items had been found at the crime scenes. Particularly in light of his previous experience in other proceedings, there is no basis to suggest that he failed to appreciate the potential consequences of furnishing bodily samples.

[45] It follows therefore that I can find no basis for finding that either the appellant’s s. 10(b) or s. 8 Charter rights had been breached and this ground of the appeal must therefore fail.

(ii) REASONABLE DOUBT

[46] The appellant submits that the trial judge failed to adequately instruct the jury with respect to reasonable doubt in accordance with the decision of the Supreme Court of Canada in R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.) and R. v. Starr, 2000 SCC 40, [2000] S.C.J. 40. The instructions to the jury were given, of course, before either the Lifchus or the Starr decisions.

[47] The instructions to the jury by the trial judge in this appeal were as follows:

The first basic principle that must underlie and form the basis of everything that you consider in this case is the presumption of innocence. There is a fundamental principle of law that the accused is presumed to be innocent until the Crown has proven his guilt beyond a reasonable doubt. The Crown must prove the guilt of the accused, not just on the mere balance of probabilities, but must prove it beyond a reasonable doubt. The accused does not have to prove or demonstrate anything with respect to his innocence. If the Crown fails to prove guilt beyond a reasonable doubt, then you must find the accused not guilty of the offence with which he is charged, as there is a reasonable doubt.

What is meant by proof beyond a reasonable doubt? It has been said that the words explain themselves. All I can tell you is that proof beyond a reasonable doubt has been achieved when you as jurors feel sure of the guilt of the accused. Proof beyond a reasonable doubt is that degree of proof which convinces your minds and satisfies your conscience as conscientious jurors that you feel bound and compelled to act upon that degree of proof. You must be able to say to yourself, to be convinced on proof beyond a reasonable doubt, “He is really guilty; of that, I am morally certain”. Remember, we are talking about moral certainty, not mathematical certainty.

On the other hand, if the evidence you have heard leaves you, as a responsible member of the jury, with some lingering or nagging doubt with respect to proof of some essential element of the offence with which the accused is charged, to the extent that you are unable to say that the Crown has proven the guilt of the accused in respect of such offence beyond a reasonable doubt, your duty is to find the accused not guilty in respect of the offence about which you have a reasonable doubt. A doubt, to be a reasonable doubt, has to be reasonable. It has to be based on the evidence that you have heard. It cannot be speculative. It cannot be fanciful. It cannot be an imaginary or illusory doubt which is conjured up in the mind of a timid juror so that he or she may avoid his or her plain duty. It must be with regard to an essential element of the offence, as I shall later describe, not in respect of an unessential matter. [emphasis added]

[48] In Starr, Iacobucci J. commented on the adequacy of the trial judge’s instructions in that case at paragraph 239 as follows:

The key difficulty with this instruction is that it was not made clear to the jury that the Crown was required to do more than prove the appellant’s guilt on a balance of probabilities. The trial judge told the jury that they could convict on the basis of something less than absolute certainty of guilt, but did not explain, in essence, how much less. In addition, rather than telling the jury that the words “reasonable doubt” have a specific meaning in the legal context, the trial judge expressly instructed the jury that the words have no “special connotation” and “no magic meaning that is peculiar to the law”. By asserting that absolute certainty was not required and then linking the standard of proof to the “ordinary every day” meaning of the words “reasonable doubt”, the trial judge could easily have been understood by the jury as asserting a probability standard as the applicable standard of proof.

and at para 241:

As was emphasized repeatedly in Lifchus and again in Bisson, a jury must be instructed that the standard of proof in a criminal trial is higher than the probability used in making everyday decisions and in civil trials.

[49] It should be emphasized that in this appeal the trial judge specifically instructed the jury that “the Crown must prove the guilt of the accused, not just on the mere balance of probabilities, but must prove it beyond a reasonable doubt”. Furthermore, the trial judge did not instruct the jury that the term reasonable doubt should be given an “ordinary everyday” meaning.

[50] Following the Starr decision, the Supreme Court of Canada in a trilogy of cases, R. v. Avetysan, 2000 SCC 56, [2000] S.C.J. 57; R. v. Beauchamp, 2000 SCC 54, [1999] S.C.J. 71 and R. v. Russell, 2000 SCC 55, [2000] S.C.J. 56 confirmed that appellate courts are to decide whether there is substantial compliance with the principles set out in Lifchus. Appellate courts must ask, “Does the charge, read as a whole, give rise to a reasonable likelihood that the jury misapprehended the correct statement of proof. If not, the charge is adequate”. (Russell at para. 22, Avetysan at para. 12, and Beauchamp at para. 17.)

[51] In my view, the instructions to the jury were in “substantial compliance” with the principles set out in Lifchus and this ground of the appeal must therefore fail.

(iii) SEVERANCE

[52] The appellant submits that in the absence of a motion for severance the trial judge on his own motion should have ordered severance.

[53] The courts have consistently affirmed that an appellate court should be most reluctant to interfere with the discretion of a trial judge. In this appeal, the counts encompassed separate transactions but the temporal and factual nexus between them was overwhelmingly strong and it, in my view, would have been highly impractical to have severed the evidence pertaining to the respective counts. In fact, if there had been separate trials, each of the juries would have had to hear evidence related to all four murders given the inextricable links between the murders.

[54] A motion to sever under s. 591(3)(a) of the Criminal Code must be brought by the accused who bears the onus of establishing on a balance of probabilities that the interests of justice require an order for severance. (R. v. Arp (1998), 1998 CanLII 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.)) In the absence of a motion by the accused to sever the counts it would be a rare and unusual case in which the severance should be made on the judge’s own motion which certainly was not the situation in this trial.

[55] The ground of appeal related to severance must fail.

(iv) INEFFECTIVE ASSISTANCE OF COUNSEL

[56] It is submitted on behalf of the appellant that:

(a) the conduct of counsel fell below professional standards of competence; and

(b) the conduct of counsel resulted in a miscarriage of justice.

[57] In the Supreme Court of Canada decision of R. v. B. (G.D.) (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 (S.C.C.) Major J. (writing for the majority) held at p. 297:

The value of effective assistance of counsel is apparent, but was fully explained by Doherty J.A. in R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.) at p. 57:

The importance of effective assistance of counsel at trial is obvious. We place our trust in the adversarial process to determine the truth of criminal allegations. The adversarial process operates on the premise that the truth of a criminal allegation is best determined by “partisan advocacy on both sides of the case”. U.S. v. Cronic, 104 S. Ct. 2039 (1984), per Stevens J. at p. 2045. Effective representation by counsel makes the product of the adversarial process more reliable by providing an accused with the assistance of a professional trained in the skills needed during the combat of trial. The skilled advocate can test the case advanced by the prosecution, as well as marshal and advance the case on behalf of the defence. We further rely on a variety of procedural safeguards to maintain the requisite level of adjudicative fairness in that adversarial process. Effective assistance by counsel also enhances the adjudicative fairness of the process in that it provides to an accused a champion who has the same skills as the prosecutor and who can use those skills to ensure that the accused receives the full benefit of the panoply of procedural protections available to an accused.

Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage of justice.

and at p. 298:

Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.

and at p. 299:

Where, in the course of a trial, counsel makes a decision in good faith and in the best interests of his client, a court should not look behind it save only to prevent a miscarriage of justice. While it is not the case that defence lawyers must always obtain express approval for each and every decision made by them in relation to the conduct of the defence, there are decisions such as whether or not to plead guilty, or whether or not to testify that defence counsel are ethically bound to discuss with the client and regarding which they must obtain instructions. The failure to do so may in some circumstances raise questions of procedural fairness and the reliability of the result leading to a miscarriage of justice.

[58] The appellant made submissions alleging ineffectiveness of counsel with respect to the following matters.

(a) Alibi Evidence

[59] It is submitted on behalf of the appellant that there were witnesses who should have been called on behalf of the appellant to establish an alibi.

[60] I find no merit in this submission. The value of these potential witnesses was extremely limited. The first witness was mentally incompetent and conceded that she could not tell the time. She also had seen the appellant wash his clothes in the middle of the night in her bathtub which evidence would probably have been supportive of the Crown’s case even though she did not see any blood. The second alleged alibi witness could not testify as to the period of time in which she was in the appellant’s presence and her evidence would not have affected the fact that the appellant would still have had ample opportunity to commit the murders.

[61] The failure of the appellant to testify would have further weakened the alibi evidence if not rendering it absolutely useless. Furthermore, trial counsel obtained written instruction from the appellant in which he agreed that defence evidence should not be called after being fully informed of the “pros” and “cons” of calling defence evidence.

[62] It was held by Sopinka J. in R. v. Noble (1997), 1997 CanLII 388 (SCC), 114 C.C.C. (3d) 385 (S.C.C.) that in the limited case of an alibi, the failure of the accused to testify and expose him or herself to cross-examination on the alibi defence may be used to draw an adverse inference about the credibility of the defence. In this case, the adverse inferences flowing from the silence of the appellant, particularly in the absence of proper notice to the Crown would have potentially been highly damaging to the appellant if the alibi evidence had been called.

(b) Third Party Suspects

[63] The appellant submits that there were other individuals whom counsel should have pursued as “third party suspects”. In my opinion, having regard to the whole of the evidence, the suggestion of “third party suspects” has no “air of reality” and it was certainly not unreasonable for the counsel at trial not to have pursued the so-called third party suspects.

(c) Ligature Expert

[64] The appellant contends that trial counsel were incompetent because they failed to call a witness who was a “knot and ligature analyst” to testify about how likely it was that the appellant bound Annette Norman’s hands before she was murdered. A report from the witness was actually obtained by the Crown and disclosed to the defence. While the witness was not called by the defence, trial counsel did explore the issue while cross-examining the Crown pathologist. The pathologist expressed the view that “knotology” was not a credible science and in my opinion it was not unreasonable for counsel to determine that this evidence would not assist the appellant.

(d) Challenge For Cause

[65] The appellant asserts that trial counsel ought to have applied for a challenge for cause of prospective jurors. There is nothing on the record to demonstrate that there was a realistic potential for partiality. The fact that trial counsel in these circumstances did not conduct a proper challenge for cause did not adversely affect the fairness of his trial.

(e) Search and Seizure

[66] As mentioned earlier, counsel made a decision not to challenge the admissibility of the evidence gathered by the police from the appellant’s room at the Oxford Hotel.

[67] In my view, the evidence reasonably supported the conclusion that, in his haste to leave the jurisdiction, the appellant abandoned the items left in his hotel room. Furthermore, the appellant was delinquent in his rental payments and he probably was not maintaining any further lawful possession interest in his personal belongings in the hotel room.

[68] The police lawfully rented the room from the manager of the hotel, packed up the appellants belongings in boxes, stored the boxes and then obtained a search warrant before opening the boxes and subjecting the contents to forensic examination.

[69] I agree with the submissions of the Crown that the evidence seized was non- conscriptive, was acquired in good faith and was otherwise discoverable. Accordingly, even in the event of a s. 8 breach, the evidence would most probably have been admitted under s. 24(2) of the Charter. It was therefore not unreasonable for trial counsel not to have sought to exclude from evidence the items of the appellant found in the hotel room.

(f) Severance

[70] It is submitted that trial counsel should have brought a motion for severance of the counts of the indictment.

[71] For the reasons outlined earlier, it was not unreasonable of counsel for the appellant to not have requested severance of the counts.

(g) Remaining Submissions

[72] The appellant also raised in his factum issues related to the following matters:

(a) The failure of the trial counsel to request that the trial judge review other evidence in addition to the trial judge’s review of the evidence in relation to the question asked by the jury.

(b) The failure of trial counsel to object to evidence introduced at trial concerning the altercation between the appellant and the deceased Tansley a month before her murder.

(c) Inadequate cross-examination by defence counsel relating to the testimony of the prostitutes to whom the appellant had confessed in Toronto.

(d) Failure of counsel to seek to introduce a tape recording of the conversation between the appellant and Brenda Mitchell.

[73] These issues were not pursued in oral argument and none of them raise a serious issue as to the competency of trial counsel.

[74] The record discloses that trial counsel took numerous steps to competently and professionally represent the appellant at trial. The evidence against the appellant was extremely, if not overwhelmingly, strong and the avenues that it is suggested should have been pursued by counsel were undoubtedly rejected for tactical reasons.

[75] In any event, it is my view that none of the issues that have been raised on this ground of appeal, if dealt with differently, would have affected the outcome of the trial.

[76] It is my view the issues raised on this ground of appeal in relation to the alleged inadequacy of counsel are ill-conceived and amount to nothing more than “Monday-morning quarterbacking”. This ground of appeal is being raised with increased frequency in this Court often without a proper foundation. While there is nothing that I would wish to state that would in practical terms eliminate this ground of appeal in our Court, I would like to emphasize that an allegation in relation to incompetence of trial counsel is a very serious allegation indeed and should only be made after very careful reflection. In my view, there was no basis for raising the issue in this appeal.

(v) “SIMILAR FACT” EVIDENCE

[77] It is submitted on behalf of the appellant that he was prejudiced by the absence of an instruction to the jury that the evidence of each murder could not be used to support the evidence of any of the other murders.

[78] It is apparent from the record that the Crown did not seek to have the evidence on one count admitted as similar fact evidence on the other counts. Furthermore, the trial judge did not instruct the jury that they could use the evidence in this manner. The jury were specifically and clearly instructed that they “must consider each charge separately and apply the evidence to each charge” and to “treat each case independently”. The instructions reviewed in the context of the charge as a whole adequately conveyed to the jury the need to assess each of the counts separately and to isolate the evidence relating to each of the offences.

[79] This ground of appeal is without merit.

(vi) VETROVEC WARNING

[80] It was submitted on behalf of the appellant that the trial judge failed to adequately instruct the jury with respect to the jail house informant witness who was identified as Mr. X.

[81] It is well settled law that where a Vetrovec type caution is appropriate the words appropriate to convey the caution will vary from case to case.

[82] In the present case, the trial judge made the following comments with respect to the evidence of Mr. X:

The fact that a witness has been convicted of a crime is relevant to his or her trustworthiness as a witness.

With respect to Mr. “X”, I would suggest that you use some caution in dealing with his evidence. You will recall from the evidence of Mr. “X” that he is currently serving time in prison for the offences of break and enter, theft over $1,000, and escape lawful custody. And he was sentenced in November 1990 to two years less a day. He also has an outstanding parole application as a result of his testimony. I think you should consider those factors when reviewing Mr. “X”’s testimony.

[Mr. Williams] reviewed the evidence of the prostitutes and Mr. “X” and refers to them as being totally disreputable persons and they should not be believed. In particular, he says that “X” knows that he will be entitled to favourable treatment from the Parole Board as a result of giving evidence in a murder trial.

[83] The trial judge made it clear to the jury that Mr. X was not to be treated like the other witnesses and that there was a need for special caution in assessing the credibility of Mr. X’s evidence. In my view, the caution was proper and adequate and this ground of appeal cannot succeed.

CONCLUSION

[84] For the reasons above, I would dismiss the appeal with respect to the appellant’s convictions on two counts of first degree murder and two counts of second degree murder.

“R. Roy McMurtry C.J.O.”

“I agree. Louise Charron J.A.”

“I agree. J. C. MacPherson J.A.”

Released: January 17, 2001

“RRM”