Her Majesty the Queen v. Baltrusaitis [Indexed as: R. v. Baltrusaitis]

58 O.R. (3d) 161

[2002] O.J. No. 464

Docket No. C25746

Court of Appeal for Ontario

Moldaver, Feldman and Cronk JJ.A.

February 12, 2002

Criminal law -- Charge to jury -- Consciousness of guilt (after-the-fact conduct) -- Accused charged with first degree murder of brother -- Trial judge leaving evidence of accused's demeanour and failure to ask questions when told of brother's death as evidence of consciousness of guilt -- Probative value of demeanour evidence highly suspect and easily misinterpreted -- Jury should have been told to disregard evidence of demeanour -- Not appropriate case for application of curative proviso -- New trial ordered.

Criminal law -- Trial -- Charge to jury -- Reasonable doubt -- Pre-Lifchus charge to jury indicating reasonable doubt having no special legal connotation and self-defining -- Implication of instructions that probability of guilt or something similar would suffice for conviction -- Correct instructions regarding reasonable doubt and circumstantial evidence but Crown's case including direct evidence of jailhouse informant that accused confessed -- Charge not otherwise free from error -- Charge on reasonable doubt inadequate -- New trial ordered.

Criminal law -- Charge to jury -- Consciousness of innocence -- Trial judge leaving evidence of consciousness of guilt (after-the-fact conduct) including accused's lie to police about owning shotgun -- Accused admitting animosity towards deceased, leaving gun paraphernalia for police to discover and volunteering bodily samples -- If trial judge instructing jury about possible inferences of guilt based on accused's post- offence conduct then judge should also instruct jury regarding accused's conduct consistent with innocence.

Criminal law -- Trial -- Charge to jury -- Vetrovec warning -- Accused charged with first degree murder of his brother -- Jailhouse informant testified that accused told him that he killed his brother -- Informant had very serious credibility problems -- Informant's evidence was only direct evidence implicating accused as killer -- Trial judge erred in not providing jury with Vetrovec warning with respect to informant's evidence -- Not appropriate to apply curative proviso -- New trial ordered.

The accused was charged with the first degree murder of his brother. The case against him rested largely, but not entirely, on circumstantial evidence. A jailhouse informant provided the evidence needed to plug potential cracks in the Crown's circumstantial case, testifying that in the course of two meetings with the accused while the latter was in custody awaiting trial, the accused told him that he had killed his brother, that the police and the Crown would have a hard time proving the case because there was no forensic evidence linking the accused to the murder scene and he would make it look like the deceased was killed by his wife, and that the police did not find the murder weapon because he discarded it before they searched his camper. The accused was convicted. He appealed.

Held, the appeal should be allowed.

The trial judge erred in failing to provide a Vetrovec warning to the jury with respect to the evidence of the jailhouse informant. A Vetrovec warning was required because the informant's testimony suffered from serious credibility problems and, although his evidence was perhaps not crucial to the Crown's case, it was very important to it. The informant's credibility was inherently suspect because he was a young man with a substantial criminal record; many of his convictions involved offences of dishonesty and untrustworthiness; he had shown in the past that he was willing to sacrifice the interests of a good friend to further his own self-interest; his motivation for contacting the authorities and cooperating with them was based entirely on his own self-interest; he gave evidence at trial that was inconsistent with his initial statement to the police; and he attributed information to the accused that was clearly incorrect. His credibility problems were extremely serious, if not overwhel ming. As for the importance of his testimony, it was the only direct evidence implicating the accused as the killer. This was not an appropriate case for the application of the curative proviso. Despite the Crown's arguments to the contrary, the independent evidence capable of confirming the jailhouse informant's evidence was not so compelling that a jury would inevitably have accepted it even had a Vetrovec warning been given, nor can it be said that the strong circumstantial evidence was so overwhelming that, even without the evidence of the informant, the verdict would inevitably have been the same.

The trial judge erred in his instructions to the jury on the after-the-fact conduct of the accused. In his charge to the jury, under the heading of "Consciousness of Guilt", the trial judge left to the jury as evidence capable of supporting an inference of guilt the accused's apparent lie to the police about never owning a shotgun, his calm demeanour upon learning of his brother's death, his failure to ask any questions about the timing or circumstances of the death and his failure to inform the police that he had recently met with his brother and that his brother appeared well. The latter three items of evidence should not have been left to the jury as after-the- fact evidence capable of supporting an inference of guilt because the probative value of this type of evidence is highly suspect and easily misinterpreted. Perceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and, in any event, the significance of the reaction will often be equivocal. Rather than leaving the impugned items of evidence to the jury as evidence capable of supporting an inference of guilt, the trial judge should have told the jury to ignore them.

The permissible consciousness of guilt evidence in this case was weak. However, if the trial judge was going to leave it with the jury, he ought to have drawn to their attention that some of the accused's conduct after the offence was consistent with his innocence. This included the evidence that he admitted his animosity toward the deceased, he left gun paraphernalia for police to discover and he volunteered bodily samples.

The trial judge misdirected the jury on the meaning of reasonable doubt. The charge was given before the judgment of the Supreme Court of Canada in R. v. Lifchus. The instructions did not include a statement or suggestion that more was required than proof that the accused was probably guilty, and the trial judge stated that the words "reasonable doubt" were used in their ordinary, natural meaning, not as a term having some special connotation. The trial judge instructed the jury that, before basing a verdict of guilty on circumstantial evidence, they had to be satisfied beyond a reasonable doubt that the guilt of the accused was the only reasonable inference to be drawn from the proven facts. The special instruction on reasonable doubt pertaining to circumstantial evidence was not sufficient to overcome the deficiencies in the charge. That special instruction did not apply to the evidence of the informant. Accordingly, the jury would have approached his evidence with no special requirements in min Crown had proved its case to the requisite standard. The charge was not otherwise error-free. In cases such as this, where identity is in issue and where the case for the Crown readily surpasses the civil standard of proof, it is especially important that trial judges locate for the jury the reasonable doubt standard above the probability standard.

APPEAL from a conviction for first degree murder.

R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, 182 D.L.R. (4th) 513, 250 N.R. 103, 141 C.C.C. (3d) 321, 30 C.R. (5th) 201; R. v. Levert (2001), 2001 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.); R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1; R. v. Thompson (2001), 2001 24187 (ON CA), 52 O.R. (3d) 641, 152 C.C.C. (3d) 527 (C.A.), apld R. v. Nguyen (2002), 2002 44910 (ON CA), 57 O.R. (3d) 589, [2002] O.J. No. 3 (C.A.), distd Other cases referred to R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, 195 Nfld. & P.E.I.R. 338, 192 D.L.R. (4th) 596, 262 N.R. 96, 586 A.P.R. 338, 149 C.C.C. (3d) 77, 38 C.R. (5th) 26 (sub nom. R. v. Avetysan (A.)); R. v. B. (S.C.) (1997), 1997 6319 (ON CA), 36 O.R. (3d) 516, 119 C.C.C. (3d) 530, 10 C.R. (5th) 302 (C.A.); R. v. Broyles, 1991 15 (SCC), [1991] 3 S.C.R. 595, 84 Alta. L.R. (2d) 1, 131 N.R. 118, [1992] 1 W.W.R. 289, 8 C.R.R. (2d) 274, 68 C.C.C. (3d) 308, 9 C.R. (4th) 1; R. v. Cooper, 1977 11 (SCC), [1978] 1 S.C.R. 860, 37 C.R.N.S. 1, 34 C.C.C. (2d) 18, 14 N.R. 181, 74 D.L.R. (3d) 731; R. v. Court (1995), 1995 1741 (ON CA), 23 O.R. (3d) 321, 29 C.R.R. (2d) D-1, 99 C.C.C. (3d) 237 (C.A.); R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 118 Man. R. (2d) 218, 150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218, [1997] 10 W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1; R. v. Miller (1991), 1991 2704 (ON CA), 5 O.R. (3d) 678, 68 C.C.C. (3d) 517, 9 C.R. (4th) 347 (C.A.); R. v. Rhee, 2001 SCC 71, 2001 S.C.C. 71, 158 C.C.C. (3d) 129; R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731, 87 Alta. L.R. (3d) 1, 192 D.L.R. (4th) 585, 261 N.R. 339, [2001] 2 W.W.R. 407, 149 C.C.C. (3d) 66, 38 C.R. (5th) 1 (sub nom. R. v. Russell (M.E.)); R. v. Schell (2000), 2000 16917 (ON CA), 148 C.C.C. (3d) 219, 38 C.R. (5th) 165 (Ont. C.A.); R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, 39 O.R. (3d) 223n, 161 D.L.R. (4th) 590, 227 N.R. 326, 125 C.C.C. (3d) 385, 16 C.R. (5th) 199 Statutes referred to Canadian Charter of Rights and Freedoms, s. 7 Authorities referred to Cory, P., "Report on the Inquiry Regarding Thomas Sophonow" (September, 2001)

Paul Slansky, for appellant. Susan Ficek, for respondent.

The judgment of the court was delivered by

[1] MOLDAVER J.A.: -- The appellant appeals from his conviction for first degree murder. He raises numerous grounds of appeal in support of his submission that the conviction should be quashed and an acquittal entered or, alternatively, that a new trial be ordered.

[2] For reasons that follow, I am satisfied that as a result of three errors in the charge to the jury, the conviction cannot stand and a new trial must be ordered. In so concluding, I reject the appellant's submission, advanced in the final paragraph of his factum, that the direct and circumstantial evidence implicating him as the person responsible for his brother's death is so lacking in probative value that "it is inevitable that, given a fair retrial, the appellant will be acquitted." On the contrary, I am satisfied that apart from the direct evidence of the jailhouse informant, the circumstantial evidence implicating the appellant as the killer, taken alone, is very strong and warrants a new trial.

Overview of the Case

[3] The appellant is the brother of the deceased, Kestutis Baltrusaitis. On September 7, 1994, Kestutis was found dead in the living room of his home at Inverhuron, Ontario. He had been shot six times at close range with a shotgun, once to the head, once to the wrist and four times to the body. Although the pathologist who performed the autopsy could not ascertain the exact time of death, the state of decomposition of the body led him to conclude that death could have occurred as early as the night of September 4th and as late as September 6th.

[4] Although Kestutis was legally married to Elizabeth McBean at the time of his death, he had recently separated from her after learning that she had been intimate with a former boyfriend who had been living with the couple at their home. Various witnesses testified that Kestutis was angry and upset about his wife's infidelity, that he had been referring to her publicly as a "slut" and a "whore", and that he was planning to cut her out of his will and pay her as little financial support as possible.

[5] At trial, there was no dispute that Kestutis had been murdered. The two live issues for the jury were whether the appellant committed the murder and, if so, whether the murder was planned and deliberate.

The Circumstantial Case Against the Appellant

[6] The Crown's case against the appellant rested largely, although not entirely, on circumstantial evidence. Various witnesses attested to the long-standing rift between the appellant and his brother dating back to their mother's death in 1983 and the appellant's belief that his brother had cheated him out of his fair share of their mother's estate. Added to this was the fact that Kestutis and the appellant had little in common. As a successful pharmacist living a traditional lifestyle, Kestutis looked upon the appellant's transient lifestyle with disdain.

[7] Other evidence led by the Crown revealed that the appellant's transient lifestyle had landed him in financial hot water in the early 1990s. According to the Crown, this only served to exacerbate his anger towards Kestutis for having cheated him out of his fair share of their mother's estate.

[8] In addition to this body of evidence, which went to the issue of motive, the Crown led evidence of opportunity. In particular, a neighbour of the deceased gave incontrovertible evidence placing the appellant's vehicle in the vicinity of the deceased's home on the morning of September 5th. Other neighbours also observed a vehicle similar to the appellant's that same morning and one reported seeing it at 9:40 a.m., leaving Inverhuron and heading towards Kincardine at a high rate of speed.

[9] As for evidence of planning and deliberation, the Crown relied in part on the testimony of various neighbours of the deceased who reported seeing a vehicle similar to the appellant's vehicle driving in the neighbourhood in the week or so prior to the murder. One such neighbour claimed to have seen the suspect vehicle on six separate occasions and he noticed that it had two aerials attached to it. His evidence dovetailed with evidence from other witnesses who reported that the appellant possessed electronic surveillance equipment, including scanner antennas, which he regularly used to intercept cellular phone calls.

[10] The Crown relied on this evidence, as well as evidence indicating that the appellant had been in Kincardine at the end of August looking for Kestutis at his workplace, to establish that the appellant had been stalking the deceased in the several weeks prior to his death as part of a plan to kill him.

[11] Additional circumstantial evidence implicating the appellant as the killer included shotgun cartridges, found by the police in his camper, which bore the same bunter dye as that used on one of the spent cartridges found at the murder scene. According to Paul Sweeney, a firearms and ballistics expert, the matching bunter dye meant that there was an excellent chance that the cartridges in the camper and the spent cartridge at the scene were produced by the manufacturer in the same production run. Notably, however, he had no information about the length of the particular production run or the number of cartridges produced in it.

[12] Other evidence found in the appellant's camper and car included assault grips used to replace the pump slide on a rifle or shotgun and thus to reduce the size of the weapon, a wooden pump slide and a brown butt stock from a shotgun, reading material relating to shotguns and a piece of paper dated July 4, 1987 regarding the sale of a Winchester model 94, 30-30 rifle.

[13] Finally, the Crown relied on certain after-the-fact conduct related to a statement the appellant made to the police prior to his arrest. In particular, the Crown focused on the appellant's lie to the police about never owning a shotgun, his inappropriate reaction upon being told of his brother's death and his failure to admit to the police that he had met with his brother two weeks before the killing.

Appellant's Reply to the Circumstantial Case

[14] The appellant did not testify at trial. With respect to motive, it was his position, supported by various Crown witnesses, that although he was angry with the deceased for cheating him out of his fair share of their mother's estate, that event had occurred in 1983, 11 years before his brother's death. There was no evidence that he had ever been violent towards his brother in the interim, nor that he had ever threatened him with violence.

[15] As for his lifestyle and precarious financial state in the early 1990s, several witnesses indicated that the appellant was happy with his transient existence and even proud of it. They further testified that he was always able to make ends meet and that he did not appear to be preoccupied with or overly concerned about money matters.

[16] With respect to opportunity, the defence made some attempt to cast doubt on the evidence identifying the appellant's vehicle in the vicinity of the deceased's home on the morning of September 5th. More importantly, the defence focused on the lack of certainty as to the time of death and the fact that the deceased's estranged wife and her boyfriend had a motive to kill the deceased and the opportunity to do so on the night of September 4th. In this respect, the appellant relied on evidence given by neighbours of the deceased who recalled hearing a loud noise that sounded like a rifle shot on the night of September 4th between 10:00 p.m. and 11:00 p.m. He also relied on the fact that the clothing worn by the deceased and the physical evidence in his kitchen were more consistent with the killing having occurred at night than in the morning. [^1]

[17] With respect to the evidence of stalking, some effort was again made to cast doubt on the apparent sightings of the appellant's vehicle by neighbours in the week or so prior to the murder. No effort was made to deny the appellant's interest in electronic surveillance equipment, but some witnesses described this as nothing more than a hobby.

[18] Turning to the gun paraphernalia found in the appellant's camper, the defence conceded that the appellant had an interest in guns. However, the defence emphasized that the appellant was not found to be in possession of the murder weapon and argued that the evidence relating to the shotgun shells and matching bunter dye was of little probative value given Mr. Sweeney's lack of information about the length of the particular production run and the number of shells produced in it. The appellant maintained that, if anything, the cartridges and gun paraphernalia found in his camper pointed more to his innocence than his guilt, because if he had killed his brother, he would have disposed of these items long before the police searched his camper. Along the same lines, the appellant relied on the fact that apart from the inconclusive bunter dye evidence, there was no other forensic evidence linking him to the murder scene.

[19] By way of counterattack, the appellant maintained that the circumstantial evidence implicating the deceased's wife, Elizabeth McBean, as the killer, was as compelling, if not more compelling, than the evidence implicating him. In this regard, he pointed out that:

• unlike himself, she stood to gain a great deal financially from her husband's death;

• she had cause to be angry with her husband after learning, on September 2nd, that he had been publicly portraying her as a slut and a whore;

• her husband's death would avoid unpleasant divorce and child custody proceedings and leave her and her boyfriend free to do as they pleased;

• her alibi evidence for the night of September 4th was not airtight and she and her boyfriend certainly had a window of opportunity to kill the deceased; [^2] and

• she had initially lied to the police, denying the affair with her boyfriend, and her false testimony to explain that lie amounted to after-the-fact conduct consistent with guilt.

Direct Evidence Implicating the Appellant

[20] John Doe, a jailhouse informant, provided the evidence needed to plug potential cracks in the Crown's circumstantial case. In essence, he testified that in the course of two meetings with the appellant while the latter was in custody awaiting trial, the appellant told him that:

• he had killed his brother;

• the police and the Crown would have a difficult time proving the case because there was no forensic evidence linking him to the murder scene and he would make it look like Ms. McBean had killed her husband; and

• the police did not find the murder weapon because he discarded it before they searched his camper.

[21] Of the many grounds of appeal raised by the appellant, I would give effect to only three. The unsuccessful grounds are listed below and addressed summarily.

Unsuccessful Grounds of Appeal

(1) The trial judge erred in ruling that the jailhouse informant, John Doe, did not actively elicit statements from the appellant in violation of the appellant's right to silence under s. 7 of the Canadian Charter of Rights and Freedoms.

[22] On a voir dire held to determine whether John Doe improperly elicited statements from the appellant, the trial judge found as a fact that the appellant was "a loquacious, outgoing person" who "talks freely to everyone, about all manner of subjects", thereby making it unnecessary for Doe to "dig information out of him". The trial judge further found that any questions asked by Doe were not "probing or persistent such that they could be considered inveigling or in the nature of an interrogation". Rather, in his view, the two questions asked by Doe were "innocuous" and consistent with "an average cellmate showing mild interest by asking the occasional appropriate question".

[23] Applying the governing legal principles from R. v. Broyles, 1991 15 (SCC), [1991] 3 S.C.R. 595, 68 C.C.C. (3d) 308 to those findings, the trial judge concluded that the appellant had not made out a s. 7 Charter violation. I see no basis for interfering with that conclusion.

(2) The trial judge erred in admitting the opinion evidence of Mr. Sweeney, the firearms and ballistics expert, regarding the apparent "match" between a shell cartridge found at the murder scene and several cartridges found at the appellant's camper.

[24] The appellant submits that the trial judge should not have admitted the "matching bunter dye" evidence because its prejudicial effect outweighed its probative value. I disagree. It was open to the trial judge to admit the impugned evidence. The expert's lack of knowledge about the length of the production run and the number of cartridges produced in it went to the weight of his opinion, not to its admissibility. The information gap in his testimony was brought to the attention of the jury and its impact would have been apparent to them. This is not a case where the jury was at risk of being overwhelmed by the "mystic infallibility" of the expert evidence.

(3) The trial judge erred in refusing to permit the defence to elicit certain statements made by the deceased to third parties.

[25] The trial judge relaxed the hearsay rule and permitted the defence to elicit a number of statements made by the deceased to third parties that were potentially helpful to the appellant. In particular, he permitted the defence to adduce evidence designed to show that the deceased's wife had at least two strong reasons for wanting to see her husband dead, one relating to her financial interests, the other to her reputation in the community and her anger with her husband for portraying her publicly as a slut and whore.

[26] On appeal, Mr. Slansky conceded that these two matters, which went to the issue of the wife's motive, were of primary interest to the defence and that other statements made by the deceased to third parties, which the trial judge refused to admit, went to peripheral matters of less relevance.

[27] In the circumstances, I see no basis for interfering with the trial judge's decision to admit some but not all of the third party evidence. The trial judge had a discretion to exercise concerning the admissibility of the evidence and, in my view, he exercised it fairly and responsibly.

(4) The trial judge failed to adequately instruct the jury on the frailties of the identification evidence.

[28] This ground relates to the identification evidence given, for the most part, by neighbours of the deceased who purported to identify either the appellant or his vehicle in the week or so prior to September 5th and on the morning of September 5th.

[29] The trial judge carefully instructed the jury about the inherent frailties of eyewitness identification evidence and he warned the jury of the "very special need for caution" before relying upon the "correctness of identification evidence". In addition, he drew the jury's attention to a number of factors to be considered in assessing the worth of identification evidence in general.

[30] In the circumstances, I am satisfied that the instructions were adequate and, although the trial judge could have said more on the subject, his failure to do so did not constitute error.

(5) The trial judge misapprehended the pathologist's evidence relating to the time of death and he failed to alert the jury to certain evidence given by the deceased's wife that damaged her credibility.

[31] Commencing with the pathologist's evidence, I am satisfied that the trial judge did not misdirect the jury on the evidence relating to the time frame within which the death could have occurred. To the contrary, he accurately summarized that evidence.

[32] With respect to the evidence given by the deceased's wife, the appellant contends that her explanation for initially lying to the police about having an affair with her boyfriend amounted to perjury and the jury should have been alerted to this in assessing her credibility. [^3] While it certainly would have been open to the trial judge to alert the jury to Ms. McBean's possible perjury and the implications flowing from it, he was not obliged to do so. Accordingly, I would not give effect to this ground of appeal.

(6) Crown counsel's closing address was improper and it deprived the appellant of his right to a fair trial.

[33] The appellant submits that the Crown's closing address was improper and highly prejudicial. In particular, he alleges that Crown counsel framed the entire address as his personal opinion, misstated the evidence on numerous occasions and persistently invited the jury to engage in speculation.

[34] In my view, this ground of appeal is devoid of merit and it should not have been raised. I have read and reread the closing address given by Mr. Farmer for the Crown. I have done the same with respect to the closing address for the defence given by Mr. T. Zuber. In my view, both addresses were proper. This was not a tea party, it was a murder trial. Counsel were entitled to put their best foot forward and they did. Neither crossed the bounds of propriety.

(7) The trial judge committed the "Miller" error by limiting the jury's assessment of reasonable doubt to evidence found to be both credible and reliable.

[35] At the outset of the charge, under the heading "Instructions as a Whole", the trial judge instructed the jury as follows:

You will base your findings of fact on the evidence heard here and the exhibits introduced. Your acceptance of evidence as truthful and accurate transforms what has been evidence into fact. It is the facts upon which you base your verdict.

(Emphasis added)

[36] The appellant submits that this instruction was erroneous because it led the jury to believe that a finding of 'Not Guilty' must be based on evidence found to be both credible and reliable. According to the appellant, the error was reinforced on several occasions throughout the charge when "the duties of the jury [were] explained in terms of acting on the facts as found by them."

[37] I agree with the appellant that the impugned instruction was wrong and it should not be repeated. Whereas a verdict of 'Guilty' can only be based on evidence found to be both credible and reliable, the same does not hold true for a verdict of 'Not Guilty'. Simply put, while it is perfectly proper to instruct the jury that in order to find an accused guilty of a particular offence, they must be satisfied on the basis of evidence found to be credible and reliable, that each and every essential element of the offence has been proved beyond a reasonable doubt, the same rule does not apply to a finding of 'Not Guilty': see R. v. Miller (1991), 1991 2704 (ON CA), 5 O.R. (3d) 678, 68 C.C.C. (3d) 517 (C.A.).

[38] That said, I would not give effect to this ground of appeal because, apart from the isolated passage quoted above, the remainder of the charge made it clear that the jury was to consider the whole of the evidence in arriving at a verdict and that if, after doing so, they believed that the appellant did not kill his brother or they were left in a state of reasonable doubt about this, they were obliged to acquit. Accordingly, I am not satisfied that the jury was misled into thinking that they could only acquit on the basis of evidence found to be both credible and reliable.

(8) The verdict was unreasonable and unsupported by the evidence.

[39] At the outset of these reasons, I made it clear that, in my view, the verdict in this case was reasonable. Accordingly, nothing more need be said about this ground.

Successful Grounds of Appeal

(1) The trial judge erred in failing to provide a Vetrovec warning to the jury with respect to the evidence of John Doe, the jailhouse informant.

Background

[40] John Doe was 21 years old when he testified at the appellant's trial. Despite his youth, he had already amassed a substantial criminal record consisting of 14 prior convictions. Some of the convictions involved crimes of violence such as assault and uttering threats; others involved crimes of dishonesty and untrustworthiness, including failing to comply, failing to attend, impersonation with intent and obstruct police.

[41] The latter two offences are noteworthy because in each instance, upon being stopped or arrested by the police, Doe falsely identified himself as James A., his personal friend and roommate. Doe misidentified himself because he was concerned that if the police learned his true identity, he would not be released on bail in light of his extensive criminal record. In using A.'s name, Doe knew that when he did not show up in court on the charges, A. would likely be arrested. Nonetheless, he did not hesitate to lie and place his good friend in jeopardy in order to further his own self-interest. Not unexpectedly, his motivation for telling the authorities about the appellant and for cooperating with them throughout was a product of his own self-interest.

[42] Doe's initial involvement with the authorities came in June 1995 when he was being held in custody at the Walkerton jail on charges of impersonation with intent, assault with a weapon and possession of a prohibited weapon. It was there that he met the appellant and, according to Doe, in the course of conversation, the appellant told him the following:

• he [the appellant] was in custody at Walkerton on a first degree murder charge;

• the police had found soil samples at the murder scene that did not match the soil found on his boots and a fingerprint that did not belong to him;

• when the police searched his camper "they found some shotgun shells or bullets of some kind, but he was able to get rid of a gun of some sort prior to the search of the home";

• his parents had passed away, leaving him and his brother an inheritance of some sort over which his brother had control;

• his brother was supposed to give him money all the time or once a month;

• his brother had a will that he was trying to change and that would leave the appellant with nothing;

• the appellant hated his brother;

• the appellant had a person in Windsor who would say that he was baling hay when his brother was killed;

• his brother had been shot five or six times with different shells and bullets;

• the police should be looking for his brother's wife since she stood to gain everything from his death and she had now moved to Alberta; and

• the appellant and his brother had met two weeks before the murder, apparently at the latter's home, and they had argued over the inheritance.

[43] Armed with this information and fearful that he would be "hammered" on the offences he was facing because of their nature and his prior record, Doe asked his lawyer to speak to the Crown with a view to obtaining a reduction in sentence in exchange for information. Upon being told by his lawyer that the Crown was not in a position to make a deal, he pled guilty to the charges and received a sentence of imprisonment totalling 90 days.

[44] According to Doe, the police contacted him shortly thereafter and, on June 27, 1995, they came to see him. At that time, he told the police about his conversation with the appellant because he thought he "could get into trouble for holding it back". In particular, he was worried that he could be charged with an offence for withholding the information from the police because his lawyer had told the Crown that he had information relating to the appellant.

[45] Doe was next approached by the police on August 11, after he had been transferred from Walkerton to the Birch Correctional facility. At that time, he agreed to be transferred to the London jail for a fee of $500, where he would spend the last week of his custodial sentence with the appellant and attempt to obtain further information from him. To that end, on August 14, Doe was taken to the London jail where he spent one day with the appellant. According to Doe, he broke his agreement to stay the week with the appellant because the appellant was in segregation and the living conditions were cramped and smelly. Doe also claimed that he was "a little nervous".

[46] During his one day stay with the appellant, for which he received $100, Doe claimed that the appellant confided in him as follows: "You know I did it. I know I did it. Let's see them fucking well prove that I did it." In addition, according to Doe, the appellant remarked that if the case went to trial, he would "turn it around" and make it look like his brother's estranged wife had committed the murder.

[47] In cross-examination, it was pointed out to Doe that in his initial statement to the police, he reported that the appellant had told him that his parents had died some six years ago and that the deceased had been shot five times. Both pieces of information were clearly incorrect. As well, after being referred to one of his answers at the preliminary hearing, Doe acknowledged that in his initial conversation with the appellant, the appellant had led him to believe that two different guns were used to kill his brother, one a shotgun, the other a rifle. That information was likewise incorrect.

The Crown's closing address

[48] In a 72-page address to the jury, the Crown devoted the last five pages to Doe. He referred to Doe's testimony as "significant", and effectively used it to tie up any loose ends in the circumstantial case against the appellant.

The trial judge's instructions

[49] In his charge, under the heading "Criminal Record of a Witness", the trial judge reviewed Doe's criminal record and he properly instructed the jury on its use in assessing Doe's credibility. Then, after reminding the jury of the nature and number of Doe's convictions, the trial judge told the jury that, in his view, Doe's record was "a significant factor in the determination of his credibility". Having expressed his view, the trial judge quite properly reminded the jury that they could reject his opinion if they did not agree with it.

[50] After completing his instructions on the use of criminal convictions, the trial judge returned to the witness Doe, this time under the heading "Crown Witness -- Prison Inmate". In this portion of the charge, the trial judge reviewed the key aspects of Doe's evidence implicating the appellant as the killer. He then told the jury that when assessing Doe's evidence, in addition to considering his criminal record, they should also consider his motive for giving evidence favourable to the Crown. In this regard, he reminded the jury of the various factors that had caused Doe to seek out and cooperate with the authorities. He also cautioned the jury that because Doe had previously given evidence under oath at the preliminary hearing, changes in his testimony at trial could lead to a charge of perjury. The trial judge then continued as follows:

. . . On the other hand, consider the evidence of Mr. Linkenheld. He says he gave no details of the police investigation to Mr. Doe. Yet Doe related particulars to us that the crown says he could not have known except from Charles Baltrusaitis, for example, the lack of soil samples placing him at the murder scene, the presence of the one unidentified fingerprint, the fact the police found shotgun shells at the scene, but no gun as he was able to get rid of it and most telling, the information that the deceased was trying to change his will leaving the accused with nothing. The defence suggests these particulars were general knowledge which he could have learned from other inmates. He also related particulars that are probably incorrect or are in fact incorrect, for example, that two guns, a rifle and a shotgun were used in the murder; that there were five shots, not six and that Chuck said his parents had died about six years before. However, the crown points out he also referred to two types of shells, which is correct.

All of these matters may be considered by you when deciding whether you accept all or part or none of the evidence of Mr. Doe. It is for you to decide matters of credibility, that is what, if any, of what Mr. Doe told us you accept and what weight to give that which you do accept.

[51] Later in the charge, the trial judge returned to Doe in the context of an overall review of the evidence for and against the appellant. Under the sub-heading "The Accused's Admissions to John Doe", the trial judge instructed the jury as follows:

The crown says the admissions to John Doe on two different occasions are clear confessions of guilt by the accused. John Doe has nothing to gain or lose at this point. He said he does not care if you believe him or not. It is up to you. He has completed all his sentences and is not facing any more charges. Despite his criminal past he was an honest witness worthy of belief. His testimony was a strong piece of evidence identifying the accused as the killer, says the crown.

The defence says the man is an admitted multiple liar who has and will say anything to gain something for himself. With the June 1995 revelations he hoped to get a better deal from the crown on his charges. With the August revelations he hoped to make some money. In any event, after he told his June story, he had to stick to it or risk further charges. Whether he would have been charged or not is not relevant. He thought he could be.

Was it incumbent on the trial judge in these circumstances to provide the jury with a Vetrovec warning?

[52] In R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, 141 C.C.C. (3d) 321, at pp. 269-70 S.C.R., pp. 347-48 C.C.C., Major J., writing for the majority on this issue, identified the two main factors to be considered in determining whether a Vetrovec warning is necessary:

In summary, two main factors are relevant when deciding whether a Vetrovec warning is necessary: the witness's credibility, and the importance of the witness's testimony to the Crown's case. No specific threshold need be met on either factor before a warning becomes necessary. Instead, where the witness is absolutely essential to the Crown's case, more moderate credibility problems will warrant a warning. Where the witness has overwhelming credibility problems, a warning may be necessary even if the Crown's case is a strong one without the witness's evidence. In short, the factors should not be looked to independently of one another but in combination.

[53] Applying those factors to Doe's testimony, I am satisfied that the trial judge should have provided the jury with a Vetrovec warning and that his failure to do so constituted error. In fairness, it should be pointed out that the trial judge did not have the benefit of Brooks, supra, at the time of the charge. Had that decision been available to him, I am confident that given the fair manner in which he conducted the trial, he would have warned the jury to proceed with caution before acting on Doe's evidence to convict the appellant. A Vetrovec warning was required because Doe's testimony suffered from serious credibility problems and, although his evidence was perhaps not crucial to the Crown's case, it was very important to it.

[54] Beginning with credibility problems, in my view Doe's evidence was inherently suspect for the following reasons:

• Doe, at the young age of 21, had amassed a substantial criminal record;

• many of Doe's convictions involved offences of dishonesty and untrustworthiness;

• Doe, on his own evidence, was willing to sacrifice the interests of a good friend to further his own self interest;

• Doe's motivation for contacting the authorities and cooperating with them was based entirely on his own self- interest;

• Doe gave evidence at trial that was inconsistent with his initial statement to the police; and

• Doe attributed information to the appellant that was clearly incorrect.

In sum, I would characterize Doe's credibility problems as extremely serious, if not overwhelming.

[55] As for the importance of Doe's testimony, his was the only direct evidence implicating the appellant as the killer. In that sense, it provided the Crown with the fill needed to plug the potential cracks in its circumstantial case. By way of example, the evidence supporting the appellant's primary defence, namely, that Elizabeth McBean may have killed her husband, was certainly capable of creating such a crack. In that regard, Doe's evidence accomplished two important things for the Crown: (a) it devastated that defence; and (b) it lent support to the Crown's position that the appellant had planned and deliberated his brother's murder. [^4] In sum, although Doe's evidence may not have been crucial to the Crown's case, in my view it was very important and, if accepted, it alone could support a conviction.

[56] Accordingly, I am satisfied that in these circumstances, the trial judge was required to provide the jury with a Vetrovec warning and his failure to do so constituted error. [^5]

Can the proviso be applied to cure the error?

[57] To apply the curative proviso in this case, the Crown must establish that the error was harmless for one of the following two reasons:

• the independent evidence capable of confirming Doe's testimony was so compelling that the jury would inevitably have accepted his evidence, Vetrovec warning or not; or

• the circumstantial case against the appellant was so overwhelming that even without Doe's evidence, the verdict would inevitably have been the same.

[58] Despite Ms. Ficek's able submissions to the contrary, I am not persuaded that either hurdle has been met.

[59] Commencing with the independent evidence capable of confirming Doe's testimony, it will be recalled that in his charge to the jury, the trial judge outlined for the jury some of the particulars provided by Doe that could only have come from the appellant and upon which the Crown relied to show that Doe was being honest. At the same time, the trial judge outlined the defence position regarding particulars offered by Doe that were incorrect. For convenience, I repeat the passage in question:

. . . On the other hand, consider the evidence of Mr. Linkenheld. He says he gave no details of the police investigation to Mr. Doe. Yet Doe related particulars to us that the crown says he could not have known except from Charles Baltrusaitis, for example, the lack of soil samples placing him at the murder scene, the presence of the one unidentified fingerprint, the fact the police found shotgun shells at the scene, but no gun as he was able to get rid of it and most telling, the information that the deceased was trying to change his will leaving the accused with nothing. The defence suggests these particulars were general knowledge which he could have learned from other inmates. He also related particulars that are probably incorrect or are in fact incorrect, for example, that two guns, a rifle and a shotgun were used in the murder; that there were five shots, not six and that Chuck said his parents had died about six years before. However, the crown points out he also referred to two types of s hells, which is correct.

(Emphasis added)

[60] With respect, I am of the view that there are a number of difficulties with this passage, all of which factor into my conclusion that the independent evidence capable of confirming the veracity of Doe's testimony was not so compelling that the jury would inevitably have accepted his evidence, Vetrovec warning or not.

[61] First, the evidence left to the jury as being the "most telling" in terms of its confirmatory value, namely, ". . . the information that the deceased was trying to change his will leaving the accused with nothing" was, in my view, questionable at best. There is no suggestion in this case, apart from Doe's testimony, that the deceased had made out a will leaving anything to the appellant, nor is there any suggestion that the appellant believed otherwise. Accordingly, to the extent that Doe attributed any "change of will -- loss of legacy" statement to the appellant, his information was both incorrect and potentially misleading in that it ascribed to the appellant a motive for the killing that was not borne out by other evidence.

[62] To the extent that the appellant had knowledge of any plans by his brother to change his will, that evidence could be seen as lending support to the Crown's theory that he had been intercepting his brother's phone calls and perhaps stalking him. On the other hand, the appellant may have learned of his brother's plans to change his will from "street talk" following his brother's separation from Elizabeth McBean. Whatever the case, Doe's testimony regarding the "change of will -- loss of legacy" should not have been left to the jury as the "most telling" piece of information capable of supporting the veracity of Doe's testimony because it was not supported by any independent evidence. [^6]

[63] Second, to the extent that Doe provided particulars from the appellant that were incorrect, the jury was entitled to infer that he was either concocting false information or that he was mistaken in his reporting and thus an unreliable historian. In either case, given the false particulars, it is hard to say that a Vetrovec warning would have been meaningless and that the jury would inevitably have accepted Doe's evidence as truthful based on the evidence capable of confirming his testimony.

[64] Finally, having regard to the nature of the confirmatory evidence under consideration, I think that the trial judge should have warned the jury in the strongest of terms that apart from the possibility that Doe may have learned the information from other sources, they should also consider the possibility that Doe may have received innocuous information from the appellant and converted it into inculpatory information. In the passage quoted above, it will be recalled that the trial judge mentioned only the first possibility, referring to it as a suggestion made by the defence. With respect, there are two reasons why in my view that instruction was insufficient in the circumstances.

[65] First, the warning about the possibility of Doe learning information from other sources should have been framed as a direction from the trial judge and not simply as a submission made by the defence.

[66] Second, the trial judge should have warned the jury, by way of direction, of the possibility that Doe received innocent information from the appellant and converted it into inculpatory information. To my mind, this is one of the great dangers associated with the testimony of jailhouse informants and in cases where it conceivably exists, the jury should be alerted to it and told to proceed with extreme caution. (For an insightful and comprehensive discussion of the many dangers associated with the testimony of jailhouse informants, see The Honourable Peter Cory, "Report on the Inquiry Regarding Thomas Sophonow" (2001), at pp. 63-74.)

[67] This case illustrates the point. By way of example, Doe testified that the appellant told him that he disposed of a gun before the police searched his camper. Manifestly, that statement, if made by the appellant, was highly incriminating. But what if the appellant said to Doe: "the police wrongly believe that I got rid of the murder weapon before they searched my camper?" How easy it would be for Doe to twist that into the inculpatory statement attributed to the appellant.

[68] Another example arises from Doe's testimony about the appellant's plan to implicate Elizabeth McBean as the killer. Suppose the appellant told Doe that there was ample evidence implicating Ms. McBean as the killer and that he planned to rely on that evidence as his primary line of defence. Again, how simple for Doe to twist that into the inculpatory version attributed to the appellant.

[69] For these reasons, I am not persuaded that the evidence capable of confirming Doe's testimony was so compelling that the jury would inevitably have accepted his evidence as truthful, Vetrovec warning or not.

[70] With respect to the second hurdle to be met before the curative proviso can safely be applied, namely, that the circumstantial evidence against the appellant was so overwhelming that even without Doe's evidence, the verdict would necessarily have been the same, I am of the view that although the case is a close one, the circumstantial evidence falls just short of reaching the overwhelming mark.

[71] The circumstantial case for the Crown, though strong, had its loose ends. These included:

• the missing murder weapon;

• the evidence pointing to Elizabeth McBean as the possible killer;

• the evidence suggesting that the murder may have occurred at night and not in the morning, including the loud noise heard by neighbours of the deceased on the night of September 4, the deceased's state of dress when discovered and the items found in his kitchen;

• the lack of any compelling forensic evidence tying the appellant to the murder scene; and

• the appellant's apparent willingness to cooperate with the police.

In short, I cannot say with certainty that these and other factors could not have left some of the jurors in a state of reasonable doubt.

[72] Doe's evidence, if believed, provided a complete answer to the evidence favouring the appellant and it was certainly capable of removing any unease the jurors may have been experiencing. It follows, in my view, that this is not a case in which the proviso can safely be applied to cure the error.

(2) The trial judge erred in his instructions to the jury on the after-the-fact conduct of the appellant.

[73] Several days before his arrest, the appellant spoke to the police and provided a statement to them. According to the investigating officer, the appellant appeared calm upon being told of his brother's death. He asked no questions about the timing or circumstances of the death, nor did he indicate that he had recently been to see his brother and that his brother looked well. [^7] In the course of the statement, when he was asked if he had ever purchased a firearm, the appellant stated that he had once owned a 30.06 rifle but that he had sold it two years earlier. He said nothing about having owned or purchased a shotgun. In view of his response, the Crown called evidence to establish that on April 25, 1988, the appellant purchased a 12-gauge single 'defender' shotgun from Canadian Tire.

[74] In his closing address to the jury, Crown counsel invited the jury to consider the appellant's "lie" about the shotgun as after-the-fact evidence indicative of guilt. He also invited the jury to draw the same inference from three additional items of evidence, namely, the appellant's calm demeanour upon learning of his brother's death, his failure to ask any questions about the timing or circumstances surrounding the death and his failure to inform the police that he had recently met with his brother and that his brother appeared well.

[75] In his charge to the jury, under the heading "Consciousness of Guilt", the trial judge left to the jury as evidence capable of supporting an inference of guilt the appellant's apparent lie about never owning a shotgun and the three other items of after-the-fact conduct referred to by the Crown. He then instructed the jury that in order to use the statement as evidence of consciousness of guilt, the jury had to be satisfied beyond a reasonable doubt that the appellant made the statement, that the statement was false or misleading and that the statement was deliberately made by the appellant to conceal his guilt in relation to the murder of his brother. [^8]

[76] The appellant raises the following three complaints with respect to the trial judge's instructions:

(1) The trial judge erred in leaving with the jury the evidence of the appellant's demeanour, his failure to ask questions about the circumstances surrounding his brother's death, and his failure to inform the police of a recent meeting with his brother, as after-the-fact conduct capable of supporting an inference of guilt.

(2) That in deciding whether the appellant's "lie" about owning a shotgun constituted after-the-fact conduct indicative of guilt, the trial judge should have directed the jury to consider possible innocent explanations for the apparent lie.

(3) That in the context of his instructions on after-the-fact conduct capable of supporting an inference of guilt, the trial judge erred in failing to instruct the jury on after- the-fact conduct capable of supporting an inference of innocence.

[77] Commencing with the first concern, I agree with the appellant that the three impugned items of evidence should not have been left to the jury as after-the-fact evidence capable of supporting an inference of guilt because the probative value of this type of evidence is highly suspect and easily misinterpreted. The point was recently addressed by this court in R. v. Levert (2001), 2001 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at p. 81 where Rosenberg J.A. stated as follows:

The probative value of this type of evidence [unusually calm reaction by the accused upon being confronted with an allegation of sexual abuse] is highly suspect. In the two recent cases of Susan Nelles and Guy Paul Morin use of the accused's demeanour was found to have played a part in the wrongful prosecution. The Report of the Commission on Proceedings Involving Guy Paul Morin, (1998), Vol. 2, pp. 1142 to 1150, contains an extensive discussion of the dangers of admitting such demeanour evidence. The expert and other evidence introduced at the Commission strongly suggests that this evidence can be highly suspect and should be admitted at a criminal trial with caution. Perceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal.

(Footnote omitted)

[78] The concerns expressed by Rosenberg J.A. apply with equal force to this case. In my view, rather than leaving the impugned items of evidence to the jury as evidence capable of supporting an inference of guilt, the trial judge should have told the jury to ignore them. With respect, his failure to so instruct the jury constituted error.

[79] Turning to the second concern, the trial judge instructed the jury that in deciding whether or not the appellant's apparent lie about owning a shotgun amounted to "evidence of consciousness of guilt", they should: "[c]onsider all of the evidence and the circumstances surrounding the accused's making it. He was in a police station. He had just been told of his brother's death."

[80] The appellant submits that this instruction was inadequate and that the trial judge should have told the jury that the apparent lie may simply have been the result of "confusion or forgetfulness combined with the anxiety surrounding the police interview".

[81] I would not give effect to this submission. The trial judge instructed the jury to consider the circumstances surrounding the making of the statement. Although he could have gone further and instructed the jury in the manner suggested by the appellant, in my view he was not required to do so and his failure to elaborate further did not constitute error.

[82] With respect to the third concern, it is submitted that certain of the appellant's after-the-fact conduct, such as leaving the gun paraphernalia in his camper for the police to find, volunteering bodily substances for testing and not hiding his animosity towards his brother, constituted evidence pointing to his innocence and that, as a matter of fairness, it should have been left with the jury to counter the after-the- fact conduct pointing the other way.

[83] Since the trial of this matter, this court on at least two occasions has stated that in appropriate circumstances, a trial judge should draw the jury's attention to after-the-fact conduct consistent with innocence. (See R. v. B. (S.C.) (1997), 1997 6319 (ON CA), 36 O.R. (3d) 516, 119 C.C.C. (3d) 530, at pp. 542-43 C.C.C. and R. v. Schell (2000), 2000 16917 (ON CA), 148 C.C.C. (3d) 219, 38 C.R. (5th) 165 (Ont. C.A.), at p. 237. In my view, this was such a case. The after-the-fact conduct of the appellant pointing to guilt was weak and to the extent that the trial judge saw fit to leave it with the jury at all, I believe that he should also have drawn the jury's attention to the after-the-fact conduct pointing to innocence. Accordingly, I would give effect to the appellant's position that the trial judge erred in his instructions on after-the-fact conduct.

(3) The trial judge misdirected the jury on the meaning of reasonable doubt.

[84] The charge in this case was given before the judgment of the Supreme Court of Canada in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1. The trial judge defined the term reasonable doubt for the jury as follows:

When I speak of reasonable doubt, I use the words in their ordinary, natural meaning, not as a legal term having some special connotation. Reasonable doubt is essentially self- defining. Thus, reasonable doubt is an honest and fair doubt, based upon common sense after having considered all the evidence as a whole. It is a real doubt, not an imaginary or frivolous doubt borne out of sympathy or prejudice. Reasonable doubt may arise from the evidence tendered at the trial, particularly from a conflict in the evidence, or from a lack of evidence presented at the trial. However, reasonable doubt must not be based upon conjecture or speculation. Further, it applies only to essential matters. Individual items of evidence need not be proven beyond a reasonable doubt. It may arise because you are unable to determine the credibility or reliability of particular witnesses in relation to essential matters. Finally, keep in mind that it is rarely possible to prove anything with absolute or mathematical certainty. The burden on the Crown is to prove guilt beyond a reasonable doubt, not beyond a shadow of a doubt. The Crown is not compelled to prove guilt to the impossible degree of proof to a certainty. In the end, proof of guilt beyond a reasonable doubt is the same as an absence of a reasonable doubt as to the accused's guilt.

[85] In R. v. Thompson (2001), 2001 24187 (ON CA), 52 O.R. (3d) 641, 152 C.C.C. (3d) 527 (C.A.), a case involving a charge of importing a narcotic, this court had occasion to review the adequacy of the identical instruction given by the same trial judge. The ratio of the decision, authored jointly by Morden and Goudge JJ.A., is found in the following passage at p. 644 O.R.:

In our respectful view, the charge considered as a whole in the overall context of the case does give rise to the reasonable likelihood that the jury misapprehended the requisite standard of proof. We acknowledge, at the outset, that the instructions do contain several of the explanations which Lifchus and Starr said should be included in a charge on reasonable doubt. We need not review them specifically. We note, however, that the instructions do not include a statement, or anything remotely suggesting, that more is required than proof that the accused is probably guilty. We appreciate that this deficiency, in itself, is not necessarily fatal (R. v. Russell, supra), but its absence is combined with instructions, contrary to Lifchus, that the words "reasonable doubt" are to be understood "in their ordinary natural meaning not as a legal term having some special connotation" and that there is an upper bracket of absolute or mathematical certainty. This combination leads to the reasonable interpretation that the jury was not told that probability is not enough but was implicitly told that probability of guilt, or something close to it, would be sufficient.

(Emphasis in original)

[86] Thompson is potentially distinguishable from the case at hand because the sole issue in Thompson was whether the accused was aware that she was transporting narcotics in her suitcase. Although the evidence relating to her knowledge was circumstantial, the trial judge, per R. v. Cooper, 1977 11 (SCC), [1978] 1 S.C.R. 860, 34 C.C.C. (2d) 18, did not provide the jury with any special instruction on the test to be met before relying on circumstantial evidence to convict.

[87] In the present case, because the identity of the killer was a central issue and the case against the appellant rested largely on circumstantial evidence, the trial judge, on more than one occasion, instructed the jury as follows:

Before basing a verdict of guilty on circumstantial evidence, you must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.

[88] In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 147 C.C.C. (3d) 449, at p. 265 S.C.R., p. 543 C.C.C., Iacobucci J. for the majority observed that when appellate courts are called upon to review "a pre-Lifchus jury charge", they ". . . must examine it to make sure that it was in substantial compliance with the principles set out in that case" In R. v. Rhee, 2001 SCC 71, 2001 S.C.C. 71, 158 C.C.C. (3d) 129 at p. 143, a more recent decision of the Supreme Court of Canada, Arbour J. for the majority stated that when a portion of the Crown's case ultimately rests on circumstantial evidence, ". . . accurate instructions on reasonable doubt as it pertains to circumstantial evidence . . .", can be considered in determining whether the substantial compliance test has been met. Along the same lines, in R. v. Nguyen (2002), 2002 44910 (ON CA), 57 O.R. (3d) 589, [2002] O.J. No. 3 (C.A.), a murder case in which the identity of the killer was the only live issue and the case for the Crown rested entirely on circumstanti al evidence, this court held that a pre-Lifchus charge similar to the one in issue met the substantial compliance test because: ". . . as a whole [it] was fair, balanced and otherwise error-free, it properly linked the criminal standard of proof with the presumption of innocence and it contained three separate specific instructions on the high onus the Crown must meet to discharge its burden in a circumstantial case" (at para. 45).

[89] In this case, I am not persuaded that the special instruction on reasonable doubt pertaining to circumstantial evidence was sufficient to overcome the deficiencies identified in Thompson. My concerns are threefold.

[90] First, the special instruction on circumstantial evidence did not apply to Doe's direct evidence. Accordingly, the jury would have approached his evidence with no special requirements in mind. Given the importance of his testimony to the Crown's case, I cannot be certain that the jury did not use his evidence, along with the circumstantial evidence, in concluding that the Crown had proved its case to the requisite standard. To the extent that the jury may have used Doe's evidence for that purpose, I question whether the special instruction on circumstantial evidence was sufficient to cure the deficiencies in the general instruction on the meaning of reasonable doubt.

[91] Second, unlike the situation in Nguyen, the charge in the present case was not otherwise error-free. Having regard to the nature of the other errors, I am concerned that, cumulatively, they may well have had an impact on the jury's assessment of whether a reasonable doubt existed. (See generally R. v. Starr, [supra], R. v. Avetysan, 2000 SCC 56, [2002] 2 S.C.R. 745, 149 C.C.C. (3d) 77 and the specific observations of Iacobucci J. in R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731, 149 C.C.C. (3d) 66 at pp. 76-77.)

[92] Third, I am of the view that in cases such as this, where identity is in issue and where the case for the Crown readily surpasses the civil standard of proof, it is especially important that trial judges locate for the jury the reasonable doubt standard above the probability standard. Unfortunately, that was not done here. Indeed, as this court concluded in Thompson, the instruction in issue implied that probability of guilt or something close to it would suffice for a conviction.

[93] For these reasons, I am of the view that, in the circumstances of this case, the instructions on reasonable doubt were inadequate and constituted reversible error.

Conclusion

[94] The trial judge took great pains to ensure that the appellant received a fair trial. For the most part, the errors in the charge that I have identified arise from changes in or clarifications to the law since the time of trial. Nonetheless, for the reasons given, I am satisfied that the appellant is entitled to a new trial. Accordingly, I would allow the appeal, quash the conviction and order a new trial on the charge of first degree murder.

Appeal allowed.

Notes

[^1]: When found, the deceased was not wearing pajamas or a housecoat but he was fully dressed. There were beer bottles in the kitchen but no evidence of coffee, juice or other items associated with breakfast.

[^2]: At the time of her husband's death, Ms. McBean and her boyfriend were living at a farm owned by Bert Ferris. The farm was located about 15 minutes from the deceased's home in Inverhuron. On the night of September 4th and morning of September 5th, Ms. McBean and her boyfriend attended a party at the Ferris farm. Various guests accounted for their presence throughout most, but not all, of the evening and early morning hours.

[^3]: Ms. McBean testified that in her initial conversation with the police, she lied about having an affair with her boyfriend because at the time she did not know that her husband was dead. Other evidence, including that of her boyfriend, indicated that she was aware of her husband's death when she first spoke to the police.

[^4]: Although Crown counsel on appeal submitted otherwise, Doe's evidence supported the Crown's 'stalking' theory. In addition, his evidence of the appellant's strategy to make Ms. McBean look like the killer lent support to the Crown's theory that the murder was planned.

[^5]: The Crown does not contend that the charge contained the equivalent of a Vetrovec warning.

[^6]: The defence unsuccessfully raised this concern with the trial judge.

[^7]: The only direct evidence of such a meeting came from John Doe, the jailhouse informant. There was also circumstantial evidence on the subject, the probative value of which was modest at best.

[^8]: This aspect of the charge was overly favourable to the appellant. In fairness to the trial judge, the charge was given when the law of this province was governed by R. v. Court (1995), 1995 1741 (ON CA), 23 O.R. (3d) 321, 99 C.C.C. (3d) 237 (C.A.). That decision has since been overruled in R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, 125 C.C.C. (3d) 385.