DATE: 20020226
DOCKET: C34371
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) –and– JANOS JOHN SCHAEFLER (Appellant)
BEFORE:
McMURTRY C.J.O., CATZMAN and ABELLA JJ.A.
COUNSEL:
James Lockyer and Leslie Maunder, for the appellant
W. Graeme Cameron, for the respondent
HEARD:
February 14, 2002
On appeal from the conviction imposed by Justice James B. Chadwick, sitting with a jury, dated May 21, 1993.
E N D O R S E M E N T
[1] At the beginning of his able submissions to this court, appellant’s counsel acknowledged that the appellant’s guilt had been established beyond a balance of probabilities but submitted that it fell short of proof beyond a reasonable doubt. We deal below with each of the submissions made on behalf of the appellant.
[2] Counsel for the appellant submitted that the trial judge erred in failing to instruct the jury that counsel’s suggestions to each of two witnesses, Robert Campbell and Theresa Lavergne, were not evidence unless adopted by the witness. It was his submission that the suggestions were so significant that they undermined the appellant’s defence and resulted in an unfair trial. Counsel invited us, in considering this submission, to have reference to three statements of Robert Campbell’s ex-wife and related documents. The Crown agreed that we might refer to this evidence, and reference was made to it by counsel for both the appellant and the respondent in this court.
[3] We do not agree with this submission. During his review of the evidence in his closing address, Crown counsel did not refer to the suggested contradictions. In his charge, the trial judge similarly dealt only with the viva voce evidence given by these two witnesses at the trial. There was no objection to the charge by defence counsel. In the overall context of this six-week trial, we do not consider that any prejudice flowed from these questions.
[4] Counsel for the appellant submitted that the jury was not properly instructed with respect to the burden of proof. It should be noted that this charge was delivered four years prior to the Supreme Court of Canada’s decision in R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1, and seven years prior to its decision in R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449. Throughout the charge, the trial judge emphasized that the burden of proof beyond a reasonable doubt rested with the Crown and never shifted. In our view, the charge, read as a whole, does not give rise to a reasonable likelihood that the jury misapprehended the standard of proof. While the language is not as precise as the Lifchus formulation, the charge complied with the necessary criteria identified in that case, and the jury was not misled as to the correct standard of proof: R. v. Tavernor (2001), 2001 24139 (ON CA), 140 O.A.C. 78 (C.A.).
[5] Counsel for the appellant submitted that the trial judge failed to give a specific Vetrovec warning with respect to two witnesses, Richard Berube and Gerald Gnassi. Defence counsel did not ask for such a warning or object to the failure to give it. Having regard to their conduct during the years that preceded the trial, neither witness fell within the traditional characterization of an unsavoury witness, and we see no error in the failure of the trial judge to give such a warning.
[6] Counsel for the appellant submitted that the trial judge erred in telling the jury that “it would certainly appear to me that the stronger evidence points to the death having occurred in the morning”. This was consistent with the Crown’s theory at trial, but was not unfavourable to the appellant, who adduced evidence of an alibi for his whereabouts that morning. The trial judge, as is customary, made it very clear that the responsibility to find facts was that of the members of the jury, and that they were in no way bound to follow his opinion. In our view, this remark of the trial judge, in the context of his specific cautions to the jury and in light of the weight of the evidence in favour of its accuracy, could not have misled the jury as to its independent duty as finders of fact.
[7] Counsel for the appellant took issue with the reference both by Crown counsel in his closing address and the trial judge in his charge to the jury to a statement of David Kesselring in which he purportedly said that Robert Campbell had told him that the deceased had “been murdered at the ceramic shop and that it was a mess”. We think it is arguable that, in Kesselring’s evidence, he adopted this statement in its entirety, but in any event, in all of the circumstances, we do not accept that the reference to this statement, including the portion that “it was a mess”, created any unfairness in the appellant’s trial.
[8] Counsel for the appellant submitted that the trial judge ought not to have permitted the admission of “grotesque” photographs taken at the scene of the murder or the use by Dr. Lee of projected slides of the crime scene and injury photographs in a darkened courtroom. The trial judge had regard to the appropriate legal test for the admissibility of the photographs and, after considering the submissions of counsel, excluded the photographs on the autopsy table but found that the probative evidentiary significance of the remaining photographs outweighed any potential prejudicial effect. We note that both Crown and defence counsel made use of the probative value of the photographs with reference to the nature of the attack. We see no basis to interfere with the exercise of the trial judge’s discretion with regard to the admission of the photographs in question.
[9] Counsel for the appellant submitted that the trial judge erred in admitting the evidence of David Larche that the appellant asked him, in the summer of 1980, if he knew how he could find anyone who could “get rid of his wife”. In admitting this evidence, the trial judge applied the appropriate governing principle, namely, whether its probative value outweighed its prejudice effect, and we see no error in the exercise of his discretion to admit this evidence.
[10] The appeal is dismissed.
Signed: “R.R. McMurtry C.J.O.”
“M.A. Catzman J.A.”
“R.S. Abella J.A.”```