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

65 O.R. (3d) 723

[2003] O.J. No. 2822

Docket No. C29974

Court of Appeal for Ontario

Catzman, Moldaver and Simmons JJ.A.

July 4, 2003

Criminal law -- Evidence -- Bad character evidence -- Accused convicted of second degree murder -- Witness's testimony at trial differing from statement made to police and from her testimony at preliminary inquiry -- Witness explaining her prior inconsistent statements by claiming abuse by accused for years and that she feared him -- Evidence of witness and of nine other witnesses confirming her evidence of abuse properly admitted at trial -- Probative value of evidence outweighing its prejudicial effect -- Evidence going directly to issue of motive and providing Crown with missing link needed to complete compelling circumstantial case against accused -- Appeal against conviction dismissed.

Criminal law -- Evidence -- Credibility -- Witness's testimony at trial differing from statement made to police and from her testimony at preliminary inquiry -- Witness explaining her prior inconsistent statements by claiming abuse by accused for years and that she feared him -- Trial judge permitting Crown to call psychologist to support witness's explanation by referring to Battered Women's Syndrome and Post-traumatic Stress Disorder -- Psychologist's evidence crossing line into impermissible oath-helping as it suggested to jury that witness did suffer from Battered Women's Syndrome as result of abuse by accused which accused denied -- Circumstantial evidence against accused compelling -- Error occasioning no substantial wrong or miscarriage of justice -- Appeal against conviction dismissed.

Criminal law -- Sentencing -- Parole ineligibility -- Murder -- Accused convicted of second degree murder -- Accused killing deceased in jealous rage -- Accused having history of spousal abuse but otherwise having no prior convictions for crimes of violence -- Trial judge failing to give adequate consideration to accused's personal circumstances and prospects for rehabilitation in setting parole ineligibility period at 15 years -- Appeal against sentence allowed -- Parole ineligibility period reduced to 12 years.

Criminal law -- Trial -- Charge to jury -- Reasonable doubt -- Self-defence -- Charge as whole would not have misled jury although one portion potentially confusing jury when viewed in isolation -- Appellate court suggesting improved jury instruction integrating principles set out in R. v. W. (D.) regarding reasonable doubt with directions on self-defence -- Appeal from conviction dismissed. [page724]

The accused was convicted of second degree murder and was sentenced to life imprisonment without eligibility for parole for 15 years. At the time of the offence, the accused was living in a room in the home of G, a former girlfriend who regarded the accused as a non-romantic friend. The victim was visiting G. The accused fractured the victim's skull with a hammer and then stabbed him 20 times in the chest, back and abdomen. There was just one defensive wound on the victim's body, a blunt force injury to his forearm which almost certainly occurred when he was trying to cover his face or chest. There were no defensive wounds linked to the knife attack. The accused claimed that the injuries were inflicted in the course of a life and death struggle with the victim. His sole defence at trial was self-defence. The circumstantial evidence against self-defence was compelling, and the accused's testimony did not hold up against the circumstantial and forensic evidence.

G testified at trial. Her testimony did not accord with the statement which she had given to the police or with her evidence at the preliminary inquiry. The inconsistencies came as no surprise to the Crown or the defence. Prior to trial, G had provided the police with the additional information that formed the basis of her trial testimony, and which she had not disclosed in her statement to the police or her evidence at the preliminary hearing. The Crown made this information available to the defence and advised the defence that G had an explanation for the inconsistencies, that is, her fear of the accused, her mistrust of the system and her feelings of shock and trauma occasioned by the event itself. G claimed that from 1989 to 1994, she had been physically, sexually and psychologically abused by the accused on a regular basis. She was willing to testify to ten or 11 specific incidents which, in combination, portrayed the accused as a man who was given to violence, possessiveness and jealousy and who had a need to dominate and control. It was made known to the defence that nine independent witnesses were available to give evidence that confirmed G's evidence of abuse. The defence was told that Dr. J, a clinical psychologist, had conducted a psychological assessment of G and was prepared to state that G suffered from two conditions, Battered Women's Syndrome and Post-traumatic Stress Disorder, which were capable of explaining the incremental nature of her disclosure. The Crown made it known that it would not seek to lead any of this evidence if the defence agreed not to expose the inconsistencies. The defence refused and chose to expose the inconsistencies. The trial judge ruled that G would be permitted to explain her prior inconsistent statements even though her explanation would result in the disclosure of crimes and other forms of disreputable conduct committed by the accused. He also ruled that Dr. J would be permitted to testify to support G's explanation. The accused appealed the conviction and the sentence.

Held, the conviction appeal should be dismissed; the sentence appeal should be allowed.

The evidence of Dr. J suffered from many flaws, the most egregious being that it exceeded its proper purpose and crossed the line into impermissible oath-helping. Dr. J's evidence was admissible but only for a limited purpose. It should have been restricted to a brief description of the nature and root causes of the conditions known as Battered Women's Syndrome and Post- traumatic Stress Disorder and their possible effects on disclosure patterns. Dr. J's evidence consumed the better part of 100 pages of transcript and responded to improper hypothetical questions by Crown counsel that tracked in detail the various incidents of abuse described by G. Dr. J's evidence, and effectively masked the weaknesses in G's testimony and cloaked it with an aura of scientific reliability. The evidence did not merely have the effect of bolstering G's credibility; it was calculated to achieve that end and, as such, it was improper. The Crown also elicited from Dr. J. the fact that he had assessed G prior to trial and was satisfied that she was suffering [page725] from Battered Women's Syndrome at the time of the homicide and Post-traumatic Stress Disorder thereafter. That evidence was highly improper, especially in light of the fact that the accused denied many of the incidents and portrayed others in a different light than G. The resulting credibility dispute was for the jury to resolve. Dr. J's testimony effectively usurped that function. While much of Dr. J's evidence should not have been presented to the jury, the trial judge did not err in admitting the evidence of nine confirmatory witnesses. The evidence of prior abuse went directly to the issue of motive and provided the Crown with the missing link needed to complete its formidable circumstantial case against the accused. The evidence of prior abuse disclosed the accused's need to dominate and showed him to be a man given to violence, possessiveness and jealousy. Based on this, Crown counsel was entitled to go to the jury and invite them to find that the accused killed the victim not in self-defence but in a fit of jealous rage. The probative value of G's evidence outweighed its prejudicial effect and justified the admission of the evidence given by the nine confirmatory witnesses. Moreover, defence counsel's decision to cross-examine G on her prior inconsistent statements was a tactical one made with full knowledge of the potential consequences.

In instructing the jury on the application of the R. v. W. (D.) principles regarding reasonable doubt, the trial judge stated that "even if you do not find as a fact that the evidence favouring the accused . . . is true, but have a reasonable doubt as a result of it, you may . . . acquit the accused". While in other portions of the charge the trial judge made it clear to the jury that they must acquit if they believed or had a reasonable doubt that the accused was acting in lawful self-defence when he killed the victim, it would have been preferable had that message been brought home in the context of the R. v. W. (D.) instructions. In future cases, when the defence of self-defence is raised and the trial judge believes that an R. v. W. (D.) instruction is warranted, the jury should be instructed along the following lines. "1. If you accept the accused's evidence and on the basis of it, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty. 2. Even if you do not accept the accused's evidence, if, after considering it alone or in conjunction with other evidence, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty". In this case, while the R. v. W. (D.) instruction given by the trial judge was potentially confusing, when it was considered in the context of the charge as a whole the jury would not have been misled into thinking that they could convict even though they believed or had a reasonable doubt whether the accused was acting in lawful self-defence at the time of the killing.

The admission of Dr. J's oath-helping evidence could not have affected the outcome of the trial. The circumstantial case against the accused was so overwhelming that the verdict would necessarily have been the same even if the jury had disbelieved G's brief direct testimony.

In raising the parole ineligibility period from ten to 15 years, the trial judge failed to give adequate consideration to the accused's personal circumstances and characteristics and his prospects for rehabilitation. Apart from the prior abusive conduct towards G, he had no prior convictions for violence. He did not flee the scene of the murder but instead called the police. He was in his early 30s at the time of the offence, had been gainfully employed for most of his adult life and had a very supportive family. The parole ineligibility period should be reduced to 12 years.

APPEAL from a conviction for second degree murder and from sentence.

R. v. Arradi (2003), 224 D.L.R. (4th) 300, 302 N.R. 367, 173 C.C.C. (3d) 1, 2003 SCC 23, 9 C.R. (6th) 207, [2003] S.C.J. No. 22 (QL); [page726] R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609, 169 D.L.R. (4th) 639, 132 C.C.C. (3d) 97, 23 C.R. (5th) 37 (C.A.); R. v. Gauthier, 1975 193 (SCC), [1977] 1 S.C.R. 441, 27 C.C.C. (2d) 14, 64 D.L.R. (3d) 501, 10 N.R. 373, 33 C.R.N.S. 46; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, 185 D.L.R. (4th) 626, 254 N.R. 1, 144 C.C.C. (3d) 97, 33 C.R. (5th) 1; R. v. K. (A.) (1999), 1999 3793 (ON CA), 45 O.R. (3d) 641, 176 D.L.R. (4th) 665, 67 C.R.R. (2d) 189, 137 C.C.C. (3d) 225, 27 C.R. (5th) 226 (C.A.) [Leave to appeal to S.C.C. quashed (2000), 256 N.R.198n]; R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, 108 D.L.R. (4th) 47, 159 N.R. 81, 85 C.C.C. (3d) 193, 25 C.R. (4th) 1; R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22 (sub nom. Palmer and Palmer v. R.); R. v. Rochon (2003), 2003 9600 (ON CA), 173 C.C.C. (3d) 321, [2003] O.J. No. 1155 (QL), 171 O.A.C. 64 (C.A.); R. v. Smith (2001), 2001 20968 (ON CA), 161 C.C.C. (3d) 1 (Ont. C.A.); R. v. Speid (1985), 1985 3480 (ON CA), 9 O.A.C. 237, 20 C.C.C. (3d) 534, 46 C.R. (3d) 22 (C.A.); R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 34(2)

Richard Litkowski, for appellant. David Finley and Sarah Grey, for respondent.

The judgment of the court was delivered by

[1] MOLDAVER J.A.: -- On May 6, 1997, after trial before Justice Paul Hermiston and jury, the appellant was convicted of second degree murder. On May 21, 1997, he was sentenced to life imprisonment and his period of parole ineligibility was increased from ten to 15 years. The appellant appeals from both conviction and sentence. If successful on his conviction appeal, he seeks a new trial. If the conviction appeal fails, he seeks a reduction in the period of his parole ineligibility.

[2] For reasons that follow, I would dismiss the appeal from conviction. With respect to sentence, I would allow the appeal and reduce the period of parole ineligibility from 15 to 12 years.

OVERVIEW

[3] In the early morning hours of June 28, 1995, the appellant killed Daniel Parker. He did so by first striking Parker over the head with a hammer, causing his skull to fracture, and then by stabbing him 20 times in the chest, back and abdomen with a knife. Of the 20 knife wounds, eight penetrated Parker's chest and seven were directed into his back. Parker died from loss of blood. Indeed, when found at the scene by the police and ambulance personnel a short time after the stabbing, he was literally soaked in blood, so much so that his clothing was of no evidentiary value to the forensic blood spatter analyst. [page727]

[4] The pathologist who performed the autopsy found but a single defensive wound on Parker's entire body. It was a blunt force injury to his forearm and according to the pathologist, it almost certainly occurred when Parker was trying to cover his face or chest. Of particular note, the pathologist found no defensive wounds linked to the knife attack.

[5] The appellant did not deny responsibility for the various injuries. On the contrary, he readily admitted that he caused them but claimed that they were inflicted in the course of a life and death struggle with the deceased. His sole defence at trial was self-defence. Manslaughter was left to the jury on the basis of lack of intent but, given the nature and extent of the injuries to the deceased and the appellant's admission that he was aware that the force he was using could cause death or serious injury, it was hardly a viable option. Manslaughter on the basis of provocation was not left to the jury. Defence counsel at trial (not Mr. Litkowski) acknowledged that the evidence did not support that defence and the appellant does not suggest otherwise on appeal.

The Case for Self-defence

[6] The appellant's claim to self-defence rested essentially on his own evidence. He testified that on the night in question, after spending the day and evening with his friend Joan Snider, he returned to his room at Joan Glover's apartment and went to bed. He recounted how, earlier that evening, he and Ms Snider had run into Parker and Ms Glover and that Ms Snider and Ms Glover had engaged in a heated argument about Parker's assaultive behaviour towards women. The appellant had not met Parker previously and by all accounts, he and Parker did not have a problem with each other at that time.

[7] Joan Glover and the appellant had known each other for many years. From 1989 to the summer of 1994, they were involved in a long-term relationship. More will be said about the nature of their relationship in due course. For the moment, it is common ground that at the time of the homicide, Ms Glover was allowing the appellant to use the second bedroom in her apartment until he could get back on his feet. From her perspective, the romantic aspect of their relationship was over.

[8] According to the appellant, after returning home from his evening with Ms Snider, he went to bed and as he was falling asleep, he heard the apartment door open. A few moments later, Ms Glover opened his bedroom door. Their eyes met and she closed the door. He then heard her say "Oh, he is here". A male voice then responded "the sooner we're rid of this bastard, the better". [page728]

[9] That remark made the appellant very nervous. He put on his shorts and went out into the hallway. He saw Parker and told him to "get the fuck out of here". Parker then came at him. Parker was holding a hammer in his right hand. As Parker was about to hit him with the hammer, the appellant caught Parker's wrist and a struggle ensued. During the struggle, a door opened and the appellant heard Ms Glover scream "stop it, stop it". He then heard the front door open with a bang.

[10] The struggle continued and, in the course of it, the appellant acknowledged that the hammer may have bounced off Parker's head a few times. Eventually, he was able to wrestle the hammer from Parker's grip and, with both hands, he struck Parker "quite hard" on the top of his head. Parker then fell backwards and the appellant let go of the hammer. In cross- examination, he agreed that he not only dropped the hammer but that he pushed it away from himself towards Parker.

[11] According to the appellant, moments later Parker was up again attacking him with the hammer. The appellant quickly retreated to his room and retrieved a knife from his toolbox. With the knife in his left hand, he returned to the hall to confront Parker. Parker immediately swung the hammer at him. The appellant caught it with his right hand and the two struggled over it once again. Fearing that Parker was gaining the upper hand, the appellant stabbed him in the side with the knife. According to the appellant, Parker flinched at this point and said "Oh, a knife, eh?" He then renewed his attack on the appellant.

[12] On the first knife thrust, the knife got stuck in Parker's body and the appellant lost control of it momentarily. Upon retrieving it, he plunged it repeatedly into Parker's right side. He had no idea how many times this occurred. He was in a state of panic at the time and he was terrified that he would lose his own life.

[13] Eventually, Parker began to sway on his feet and his blood splashed onto the hardwood floor. Parker then raised his free hand, admitted defeat, and fell on the appellant with all his weight. The appellant then backed him down the hallway into the living room and let go of him. Parker fell to the floor in the living room. That is where he was found shortly afterwards by police and ambulance personnel. He was lying face down in a pool of his own blood. Some of the personnel observed a hammer under his body near his right hand, others claimed that he was actually clutching it in his right hand. Ironically, Parker's parents testified that their son was left-handed and that several years earlier, he had lost two fingers on his right hand. A photograph confirming the loss of the two fingers was made an exhibit at trial. [page729]

[14] Following Parker's collapse, the appellant went to his room to retrieve his cigarettes, lighter, watch and keys. He then called the police and an ambulance. When the police arrived, he took every opportunity to insist that he had acted throughout in self-defence.

The Case Against Self-defence

[15] Apart from a small amount of direct evidence from the witness Joan Glover, the case against self-defence rested on a compelling body of circumstantial evidence. More will be said about the direct evidence of Ms Glover in due course. For the moment, suffice it to say that her evidence and the evidence surrounding it gives rise to the appellant's primary ground of appeal.

[16] As indicated, the case against self-defence rested on a compelling body of circumstantial evidence that told a much different story from the one told by the appellant. Far from confirming his version of a life and death struggle, it painted a picture of a one-sided onslaught.

[17] As I have already pointed out, the deceased suffered massive injuries to his skull and upper body. And yet, apart from one blunt force defensive wound on his forearm, no other defensive wounds were located. The lack of defensive wounds is telling, especially in relation to the knife attack. It supports the inference that before the knife attack, the deceased was in a weakened and vulnerable state from his head injuries and virtually incapable of defending himself. The force of that inference is strengthened by the lack of injuries to the appellant. Apart from a scrape on his shin, no other recent injuries were detected. A yellowish discoloration on his forehead, visible in a photograph taken shortly after the event, was said by the pathologist to be "three to four weeks old". His opinion did not coincide with the appellant's claim that he had received a "glancing blow" to his head from the hammer. According to the pathologist, had the appellant received such a blow, he would have had a mark on his forehead unless he had been hit "absolutely dead flat". The appellant's "glancing blow" injury was called into further question by a police officer who testified that shortly after the appellant's arrest, he touched the appellant's forehead and felt no swelling.

[18] In sum, to the extent that the appellant received any injuries, they hardly attested to the "life and death" struggle he described.

[19] That is not to say that the appellant did not do his best to convince others that the deceased had attacked him in a life-threatening manner. For example, although he denied it, his friend Ms Snider testified that after his arrest, the appellant told [page730] her that Parker had attacked him and hit him repeatedly on his side with a hammer. The appellant made no mention of that at the time of his arrest and no injuries to his side were noticed. According to the pathologist, had the appellant received repeated blows to his side from a hammer, bruising and swelling would have been observable and the appellant might also have sustained bruised or fractured ribs.

[20] Other aspects of the appellant's testimony did not hold up against the circumstantial and forensic evidence. By way of illustration, the appellant's evidence that the deceased collapsed on him at the end of the knife attack was irreconcilable with the small amount of blood found on the appellant's clothing. Likewise, the appellant's testimony that Parker was holding the hammer in his right hand did not accord with the evidence that Parker was left-handed and that he was missing two fingers on his right hand. In turn, that called into question the finding of the hammer in or near Parker's right hand and gave rise to an inference that the appellant planted it there after the event. That inference is supported by the appellant's testimony that after the deceased collapsed on him in the hallway, he backed the deceased into the living room before letting go. On that scenario, unless the deceased was somehow able to keep hold of the hammer after collapsing, the hammer should have been found in the hallway. The fact that it was not supports the inference that the appellant placed it underneath the deceased after he had collapsed on the living room floor; so too does the appellant's comment to the police after his arrest that "he may have moved the hammer".

[21] Other internal and external inconsistencies in the appellant's testimony also call into question the veracity of his evidence. The following three examples are offered by way of illustration.

[22] First, in his testimony at trial, the appellant claimed that Parker attacked him in the hallway after he had come out of his bedroom. And yet, in a post-arrest statement to the police (which the appellant denied), he reported that Parker had attacked him while he was lying in bed.

[23] Second, in his testimony in-chief, the appellant claimed that he was not aware that his defensive actions would kill Parker. In cross-examination, he backed away from that claim and admitted to knowing that Parker could die, both from being struck over the head with a hammer and from the knife attack.

[24] Third, the hammer that was found under Parker belonged to the appellant. Normally, the appellant kept it in his room or car. At trial, in an effort to explain how Parker had obtained it without entering his room, he testified that he had loaned it to [page731] Ms Glover. He conceded however that in his statement to the police, he did not make mention of this. In addition, Ms Glover testified that she had three hammers of her own and she was not asked in cross-examination whether she had borrowed a hammer from the appellant and if so, why.

[25] It is against this backdrop that I turn to the direct evidence of Joan Glover and the legal issues surrounding it.

Direct Evidence of Joan Glover

[26] Ms Glover testified that when she and Parker returned to her apartment, she opened the appellant's bedroom door and observed the appellant in bed. Contrary to the appellant's evidence, she denied making eye contact with him. She did agree that before closing his door, she may have said "Oh, he is here."

[27] Ms Glover then went to the washroom and while there, she heard a loud bang, following which she heard the appellant say "get the fuck out of here". That aspect of her evidence did not conform with her testimony at the preliminary hearing in which she stated that she heard an unrecognizable voice say "what the fuck are you doing?"

[28] In her trial testimony, Ms Glover stated that after hearing the loud bang and the words spoken by the appellant, she left the bathroom and saw the appellant with a hammer in his left hand. He and Parker were standing apart and she saw the appellant hit Parker with the hammer. Parker remained standing and the two men started to struggle. Parker was attempting to grab the hammer but the appellant had the upper hand.

[29] Once again, that aspect of her evidence did not accord with what she had told the police in her statement of June 28, nor did it accord with her evidence at the preliminary hearing. In neither instance had she mentioned that the appellant had a hammer or that he had hit Parker with it. As well, in both instances, she stated that she did not know who had the upper hand.

[30] At trial, Ms Glover testified that when she saw the men begin to struggle, she tried to pull the appellant away from Parker but she was unable to do so. She then fled the apartment and ran to the superintendent's apartment where she called the police. She agreed that, in total, she had witnessed five to ten seconds of the fight.

[31] The inconsistencies in Ms Glover's testimony came as no surprise to the Crown or the defence. Prior to trial, Ms Glover had provided the police with the additional information that formed the basis of her trial testimony, information that she had not disclosed in her June 28 statement to the police nor in her evidence at the preliminary hearing. [page732]

[32] Once in possession of the additional information, Crown counsel made it available to the defence. Thus, prior to commencing the trial, both sides knew that Ms Glover's description of the event was likely to differ from what she had initially told the police and confirmed at the preliminary hearing.

[33] In accordance with its continuing disclosure obligations, the Crown also advised the defence that Ms Glover had an explanation for the inconsistencies. In short, the defence was told that if asked, she would testify that her initial failure to fully disclose what she had observed and heard was due to a number of factors (the effects of which she had not appreciated at the time) including her fear of the appellant, her mistrust of the system, and feelings of shock, trauma and denial occasioned by the event itself.

[34] Beginning with her fear of the appellant and her mistrust of the system, the defence was told that in the course of her enhanced pre-trial disclosure, Ms Glover revealed that from 1989 to 1994, she had been physically, sexually and psychologically abused by the appellant on a regular basis and the system had generally failed to provide her with adequate protection. If need be, she was willing to testify to ten or 11 specific incidents which, in combination, painted a rather bleak picture of the appellant, portraying him as a man given to violence, possessiveness and jealousy and a need to dominate and control. As well, it was made known to the defence that nine independent witnesses were available to give evidence that confirmed Ms Glover's evidence of abuse.

[35] The defence was also told that Dr. Peter Jaffe, a clinical psychologist, had conducted a psychological assessment of Ms Glover. If asked, Dr. Jaffe was prepared to state that Ms Glover suffered from two psychiatric conditions known as Battered Women's Syndrome and Post-traumatic Stress Disorder and that in his opinion, these conditions were capable of explaining the incremental nature of her disclosure.

[36] In sum, the defence was put on notice, well in advance of Ms Glover testifying, that the Crown had in its possession a substantial body of evidence that could reasonably explain the apparent inconsistencies in her evidence if the defence chose to raise them. By the same token, the Crown made it known that it would not seek to lead any of that evidence if the defence agreed not to expose the inconsistencies.

[37] The defence refused the Crown's offer and chose to expose the inconsistencies. Accordingly, Crown counsel brought a pre-trial motion in which he sought permission to bring out, as part of his case in-chief, the inconsistencies arising from Ms Glover's incremental disclosure and the evidence he planned to lead to explain them. That, of course, was the proper procedure to follow. [page733] The proposed explanatory evidence involved evidence of the appellant's bad character and as such, it would normally not be admissible. As well, the opinion evidence was of a type that required judicial screening.

The Trial Judge's Ruling

[38] In accordance with this court's decision in R. v. Speid (1985), 1985 3480 (ON CA), 20 C.C.C. (3d) 534, 46 C.R. (3d) 22 (C.A.), at pp. 546-47 C.C.C., the trial judge ruled that Ms Glover would be permitted to explain her prior inconsistent statements even though her explanation would result in the disclosure of crimes and other forms of disreputable conduct committed by the appellant. Although the trial judge made no mention in his ruling of the nine independent witnesses whom the Crown proposed to call in support of Ms Glover's testimony, that is because the defence did not challenge the admissibility of their evidence. The trial judge did, however, address the admissibility of Dr. Jaffe's evidence. As the record reveals, it was his evidence that the defence was primarily contesting.

[39] In ruling against the defence, the trial judge found that in her enhanced disclosure to the police, Ms Glover linked the inconsistencies in her earlier statements to the appellant's abusive conduct and thus satisfied the connection needed to permit Dr. Jaffe to testify. He further found that Dr. Jaffe's expert opinion would "be helpful to the jury to understand the dynamics of couples and spousal abuse" and that Dr. Jaffe had "the necessary expertise to meet the required threshold of reliability". In accordance with Speid, supra, he was satisfied that the Crown could call Dr. Jaffe to support Ms Glover's explanation of her prior inconsistent statements to the extent that her explanation hinged on the appellant's prior abusive treatment of her. Finally, in ruling Dr. Jaffe's evidence admissible, the trial judge held that his testimony was "relevant and probative to the issue of the credibility of Joan Glover, upon which ultimately the jury will make a finding" and that its probative value would not be overshadowed by its prejudicial effect.

EVIDENTIARY ISSUES

The Explanatory Evidence

[40] On appeal, counsel for the appellant did not challenge the admissibility of Dr. Jaffe's evidence in total. On the contrary, with his usual candour, Mr. Litkowski conceded in oral argument that a brief description of the nature and root causes of the psychiatric conditions known as the Battered Women's [page734] Syndrome and Post-traumatic Stress Disorder and their possible effects on disclosure patterns would have been acceptable. The chief complaint now is that Dr. Jaffe's evidence exceeded the limited purpose for which it was receivable and that it contravened the rule against oath- helping.

[41] Aside from the impermissible aspects of Dr. Jaffe's evidence, Mr. Litkowski raised an overriding concern about the sheer volume of evidence that was led to explain Ms Glover's prior inconsistent statements. In this regard, he drew our attention to the hundreds of pages of transcript devoted to Ms Glover's evidence of prior abuse, and the related evidence of Dr. Jaffe and the nine confirmatory witnesses called by the Crown, and he submitted that the prejudicial effect of that body of evidence far outweighed its probative value.

[42] According to Mr. Litkowski, the prejudice occasioned by that evidence took three forms. First, it portrayed the appellant as an evil man. Second, it placed the appellant in the position of having to defend himself not only against the murder charge but against a series of abuse allegations as well. (The appellant denied many of the allegations of abuse and sought to portray others in a different light than Ms Glover.) Third, given the large number of abusive incidents and the conflicting evidence in relation to them, there was a real risk that the jury's attention would be deflected away from the murder charge and drawn instead to the abuse allegations.

[43] Balancing these concerns against the probative value of the evidence, which according to Mr. Litkowski went solely to Ms Glover's credibility, Mr. Litkowski maintained that the cost of receiving the evidence far outweighed its limited value. In the end, I understood Mr. Litkowski to say that in the interest of trial fairness, it was essential that the explanatory evidence be pared down and limited to its bare essentials. To achieve this, the trial judge should have excluded the evidence of the nine confirmatory witnesses and much of Dr. Jaffe's evidence.

Analysis

[44] I propose to begin my analysis with Dr. Jaffe's evidence. I shall then turn to the appellant's overriding concern about the sheer volume of explanatory evidence and the prejudice occasioned by it.

[45] With respect to Dr. Jaffe, I am of the view that his evidence suffered from many flaws, the most egregious being that it exceeded its proper purpose and crossed the line into impermissible oath-helping. [page735]

[46] In my view, Dr. Jaffe's evidence was admissible but only for a limited purpose. It should have been restricted to a brief description of the nature and root causes of the conditions known as Battered Women's Syndrome and Post- traumatic Stress Disorder and their possible effects on disclosure patterns. Had the evidence been so limited, it could have been given in brief compass. That is what should have occurred (see R. v. K.(A.) (1999), 1999 3793 (ON CA), 45 O.R. (3d) 641, 137 C.C.C. (3d) 225 (C.A.), at p. 689 O.R., p. 278 C.C.C. and R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609, 132 C.C.C. (3d) 97 (C.A.), at p. 618 O.R., p. 109 C.C.C.

[47] As it is, Dr. Jaffe's evidence consumed the better part of 100 pages of transcript. With respect, much of it was taken up with long, drawn-out examples that bore little relationship to the case at hand and rambling unstructured answers that took the form of a lecture. The fault in this regard does not rest entirely with Dr. Jaffe. Defence counsel failed to object and Crown counsel failed to rein Dr. Jaffe in.

[48] Apart from these general concerns, it was highly improper for Crown counsel to put a 16-page hypothetical question to Dr. Jaffe that tracked in detail the various incidents of abuse described by Ms Glover and ended with the question "does that scenario say anything to you?" Not unexpectedly, that question evoked a rambling response that went on for the better part of 12 pages. In it, Dr. Jaffe confirmed that the scenario described had all of the hallmarks of Battered Women's Syndrome and that if he had assessed the hypothetical victim, he would have diagnosed her as "somebody who was suffering from battered wife syndrome".

[49] As if that was not enough, the Crown then proceeded to go through the hypothetical scenario again, this time focusing on particular aspects of the victim's conduct and asking whether they were consistent or inconsistent with someone in an abusive relationship. Not surprisingly, Dr. Jaffe found the various responses of the hypothetical victim to be entirely consistent with a woman caught up in an abusive relationship.

[50] The Crown then followed the same tack with respect to the second psychiatric variant known as Post-traumatic Stress Disorder. He did so by presenting Dr. Jaffe with a hypothetical scenario that tracked the events witnessed by Ms Glover on the night of the homicide and then asking whether the nature of that event, in combination with the violence experienced by the first hypothetical victim, could give rise to Post-traumatic Stress Disorder. Not unexpectedly, Dr. Jaffe answered in the affirmative.

[51] Crown counsel then proceeded to describe, again in the form of a lengthy hypothetical question, the initial disclosure given [page736] by Ms Glover and the enhanced version that formed the basis of her trial testimony. Crown counsel continued by asking Dr. Jaffe whether the pattern of disclosure described was consistent or inconsistent with what he would expect from the hypothetical victim under consideration. As expected, Dr. Jaffe found it to be entirely consistent with someone suffering from Battered Women's Syndrome and Post- traumatic Stress Disorder. In other words, in Dr. Jaffe's opinion, the psychiatric conditions could be looked to as a complete explanation for Ms Glover's prior inconsistent statements.

[52] In my view, the hypothetical questions and answers went far beyond the legitimate purpose for which Dr. Jaffe's expert testimony was receivable. The jury was presented with a neatly wrapped package that effectively masked the weaknesses in Ms Glover's testimony and cloaked it with an aura of scientific reliability. Contrary to the submission of the respondent, I do not accept that Dr. Jaffe's evidence merely had the effect of bolstering Ms Glover's credibility. In my view, it was calculated to achieve that end and as such, it was improper. (See R. v. K. (A.), supra, at pp. 688-89 O.R., pp. 277-78 C.C.C. and R. v. Marquard[copyright]1993 37 (SCC), [1993] 4 S.C.R. 223, 85 C.C.C. (3d) 193, at p. 249 S.C.R., p. 229 C.C.C.

[53] Remarkably, the improper scope of Dr. Jaffe's testimony did not stop there. Before completing his examination-in-chief, Crown counsel elicited from Dr. Jaffe the fact that he had assessed Ms Glover prior to trial and that based on his assessment, he was satisfied that she was suffering from Battered Women's Syndrome at the time of the homicide and Post- traumatic Stress Disorder thereafter.

[54] In the circumstances, that evidence was highly improper. Unquestionably, Dr. Jaffe's opinion was based in part on Ms Glover's description of the appellant's abusive conduct towards her. In concluding that she was suffering from Battered Women's Syndrome and Post-traumatic Stress Disorder, he was effectively telling the jury that in his professional opinion, Ms Glover was telling the truth about the various incidents of abuse attributed to the appellant. Had that aspect of her evidence been uncontested, the harm would have been minimal. As it is, the appellant denied many of the incidents and portrayed others in a different light than Ms Glover. The resulting credibility dispute was for the jury to resolve. Dr. Jaffe's testimony effectively usurped that function.

[55] For these reasons, I agree with the appellant that much of Dr. Jaffe's evidence was inadmissible and it should not have been presented to the jury. That however is where I draw the line. I do not share the appellant's further concern that the trial judge should have excluded the evidence of the nine confirmatory witnesses. Specifically, for reasons that follow, I reject the appellant's [page737] overriding submission that the prejudicial effect of the explanatory evidence overshadowed its probative value.

[56] First, as I have already pointed out, defence counsel did not object to the testimony of the confirmatory witnesses. Accordingly, the trial judge can hardly be faulted for admitting their evidence.

[57] Second, I am of the view that the evidence relating to Ms Glover's prior abuse has far greater probative value than the appellant is prepared to admit. The appellant has attempted to marginalize its value by suggesting that it goes solely to the issue of Ms Glover's credibility. If that were so, I might have been more receptive to his overriding submission that by its sheer volume, the explanatory evidence created a level of prejudice that was unacceptable. That however, is not the case. In addition to being probative of Ms Glover's credibility, the evidence of prior abuse went directly to the issue of motive and provided the Crown with the missing link needed to complete its formidable circumstantial case against the appellant.

[58] To be precise, the evidence of prior abuse was admissible to shed light on the nature of the appellant's relationship with Ms Glover. It disclosed his need to dominate and showed him to be a man given to violence, possessiveness and jealousy. Based on this, Crown counsel was entitled to go to the jury, as he did, and invite them to find that the appellant killed Parker not in self-defence but in a fit of jealous rage. Viewed that way, I am satisfied that the probative value of Ms Glover's evidence outweighed its prejudicial effect and justified the admission of the evidence given by the nine confirmatory witnesses.

[59] Third, although by no means decisive, I am satisfied that defence counsel's decision to cross-examine Ms Glover on her prior inconsistent statements was a tactical one made with full knowledge of the potential consequences. In short, as the record reveals, the defence wanted the best of both worlds. By exposing Ms Glover's prior inconsistent statements, defence counsel hoped to cast doubt on her credibility. As for the evidence of prior abuse, it provided Ms Glover with a motive to fabricate evidence against the appellant because of the suffering he had caused her for so many years. Not unexpectedly, that is precisely the approach taken by defence counsel in his closing address to the jury.

[60] In the end, I would give effect to this ground of appeal but only in so far as it relates to the scope and extent of Dr. Jaffe's testimony.

Reply Evidence

[61] The appellant submits that the trial judge erred in permitting the Crown to lead reply evidence from Police Constable [page738] Kennedy. Constable Kennedy testified about a statement made to him by the appellant shortly after his arrest in which the appellant stated that Parker had attacked him while he was lying in bed.

[62] According to the Crown, Constable Kennedy's evidence took on significance only after the appellant had testified and stated that Parker first attacked him in the hallway after he had come out of his bedroom. In cross-examination, it was put to the appellant that he had told Constable Kennedy that the initial attack had occurred in his bedroom. The appellant denied making any such statement.

[63] In my view, the trial judge did not err in permitting the reply evidence. This is not a case in which the appellant was caught off guard or unfairly trapped by the Crown. Constable Kennedy's "will-say" statement had been disclosed to the appellant and the appellant therefore knew what his evidence would be. The Crown was not required to lead the appellant's statement to Constable Kennedy in-chief. At that stage, it amounted to little more than a self-serving uncorroborated statement of marginal relevance. As the respondent points out, "calling [Constable Kennedy's] evidence in-chief would not have materially advanced the inquiry into how Mr. Parker died". Once the appellant testified however, Constable Kennedy's evidence took on real significance and in my view, it was properly admissible in reply.

[64] In ruling the reply evidence admissible, the trial judge found that because the appellant had admitted the voluntariness of his statements to the police, that admission carried with it a presumption that he had made the various statements attributed to him. In view of that, the trial judge viewed the appellant's denial of having made the statement as a retreat from his earlier concession, something the Crown could not foresee. Accordingly, the trial judge considered the proposed reply evidence to be proper.

[65] The trial judge erred in his analysis. An admission of voluntariness in respect of a statement does not translate into an admission that the statement was actually made (R. v. Gauthier (1975), 1975 193 (SCC), [1977] 1 S.C.R. 441, 27 C.C.C. (2d) 14, at p. 448 S.C.R., p. 20 C.C.C.). In the circumstances, however, the error was harmless. While the trial judge's analysis of the issue may have been wrong, he reached the right conclusion. Accordingly, I would not give effect to this ground of appeal.

ISSUES RELATING TO THE CHARGE

[66] The appellant raised a number of issues relating to the trial judge's charge to the jury. Most can be dealt with in brief [page739] compass. The only one of concern relates to the manner in which the jury was instructed on the principles enunciated in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397. In particular, the question that arises is how those instructions should be framed when the primary defence is self- defence.

The Elements of Self-defence

[67] Commencing with the more straightforward issues, the appellant submitted that in instructing the jury on self- defence under s. 34(2) of the Criminal Code, R.S.C. 1985, c. C-46, the trial judge misled the jury into thinking that the defence would not apply if the appellant knew that the injuries he was inflicting to Parker were likely to kill him. The impugned passage from the charge reads as follows:

The accused man testified in his cross-examination . . . that at the time he hit Parker with the hammer he knew there was a potential to cause Parker serious injury or death. . . . The accused admits that throughout the whole process of stabbing Parker he had knowledge that he could be killing Parker. Ladies and gentlemen, these admissions go directly to the elements of murder and the issue of self-defence.

[68] I would not give effect to this ground. While the instructions on self-defence were not a model of perfection, I am not persuaded that the jury was misled as the appellant suggests. I do not read the impugned passage as speaking to the elements of self-defence. Rather, as the respondent points out, when read in context, it is simply a reference to the appellant's credibility and its importance to the jury in assessing his claim to self-defence.

Reasonable Doubt

[69] The appellant takes issue with the trial judge's instruction on reasonable doubt. Specifically, he submits that the trial judge erred by telling the jury that the words "reasonable doubt" should be given their ordinary meaning and by failing to locate the criminal standard of proof. Bearing in mind this court's recent jurisprudence on the subject (see for example R. v. Rochon, 2003 9600 (ON CA), [2003] O.J. No. 1155 (QL), 173 C.C.C. (3d) 321 (C.A.)), I am satisfied when the charge is read as a whole, that the jury would have understood the correct standard of proof. Accordingly, I would reject this ground of appeal.

The W. (D.) Instruction

[70] The trial judge's instruction on the application of the W. (D.) principles is more troublesome. The impugned passage from the charge reads as follows: [page740]

First, if you accept the evidence favouring the accused, including his testimony on this matter, and find it to be factually true when weighed against the contradictory evidence, you may acquit the accused. Second, even if you do not find as a fact that the evidence favouring the accused in this matter is true, but have a reasonable doubt as a result of it, you may also acquit the accused. Third, even if you do not have a reasonable doubt on this matter as a result of the evidence favouring the accused because you reject that evidence as untrue, you must still determine whether the Crown has convinced you of the guilt of the accused beyond a reasonable doubt on the basis of the evidence which you do accept and find to be factually true.

[71] Although the appellant took issue with several aspects of that instruction, in my view, the only area of concern is the portion in which the trial judge directed the jury that they may acquit if they believe the appellant's evidence or if it leaves them in a state of reasonable doubt.

[72] At one level, that instruction is understandable because the defence of self-defence contains objective components. Accordingly, the defence can fail even if the jury accepts the accused's evidence. The problem with the instruction is that it fails to bring home to the jury the circumstances under which they must acquit. While I am satisfied that in other portions of the charge, the trial judge made it clear to the jury that they must acquit if they believed or had a reasonable doubt that the appellant was acting in lawful self-defence when he killed Parker, I believe that it would have been preferable had that message been brought home in the context of the W. (D.) instructions. Such an approach would avoid the possibility of the jury being misled into thinking that they retained an overriding discretion to convict even though they otherwise believed or had a reasonable doubt that the appellant was acting in lawful self-defence at the time of the killing. To guard against that possibility, I would suggest that in future cases, when the defence of self-defence is raised and the trial judge believes that a W. (D.) instruction is warranted, the jury should be instructed along these lines with respect to the first two principles:

1. If you accept the accused's evidence and on the basis of it, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty.

2. Even if you do not accept the accused's evidence, if, after considering it alone or in conjunction with the other evidence, you believe or have a reasonable doubt that he/ she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty. [page741]

[73] As indicated, the W. (D.) instruction given by the trial judge was potentially confusing. However, when it is considered in the context of the charge as a whole, I am satisfied that the jury would not have been misled into thinking that they could convict even though they otherwise believed or had a reasonable doubt that the appellant was acting in lawful self- defence at the time of the killing. Accordingly, I would not give effect to this ground of appeal.

Instructions Relating to Dr. Jaffe's Evidence

[74] The final two grounds relating to the charge involve Dr. Jaffe's evidence. First, the appellant submits that the trial judge misled the jury as to the content of Dr. Jaffe's evidence on the subject of validity testing that he performed. I do not agree with that submission. In my view, the trial judge accurately recited the evidence and defence counsel at trial did not contend otherwise.

[75] Second, the appellant submits that the trial judge failed to adequately instruct the jury on the permissible and impermissible uses of Dr. Jaffe's testimony. Again, I disagree. The trial judge told the jury that they could use Dr. Jaffe's evidence in deciding whether there was an explanation for the inconsistencies in Ms Glover's testimony. At the same time, the trial judge made it clear that it was for the jury to decide whether or not they accepted the explanations offered by Dr. Jaffe, that they were not required to accept his opinion merely because he was an expert and that it was for them alone to decide whether Dr. Jaffe's opinions were or were not sound. Finally, the trial judge told the jury, in forceful terms, that it was for them to decide whether Ms Glover's allegations of abuse were true and if so, "whether the result of this abuse caused [her] to make her incremental disclosure as she did, as outlined by Dr. Jaffe." The jury was given a similar instruction regarding Ms Glover's evidence "as to what she saw" on the night in question.

[76] Once again, defence counsel at trial raised no objection to this aspect of the trial judge's instructions. In the circumstances, I am satisfied that the instructions were adequate.

FRESH EVIDENCE

[77] The appellant sought to introduce fresh evidence with a view to establishing:

• that Ms Glover may have been suffering from Bipolar Disorder in and around the time of the homicide; [page742]

• that such a disorder may have affected her ability to process information and accurately recollect events;

• that Dr. Jaffe may have missed the diagnosis of Bipolar Disorder in concluding that Ms Glover suffered from Post- traumatic Stress disorder; and

• if Ms Glover was suffering from Bipolar Disorder, the reliability of Dr. Jaffe's opinion would be called into question.

I would not receive the proposed fresh evidence for several reasons.

[78] First, it could have been adduced at trial through due diligence. Second, taken at its highest, it does nothing more than raise the possibility that in the year 2000, five years after the homicide, Ms Glover may have been suffering from Bipolar Disorder. Beyond that, there is no evidence capable of establishing that Ms Glover was suffering from Bipolar Disorder at the time of the homicide in 1995, or at the time of trial in 1997. Accordingly, the proposed evidence lacks the probative value required to meet the fourth test in R. v. Palmer (1979), 1979 8 (SCC), [1980] 1 S.C.R. 759, 50 C.C.C. (2d) 193, at p. 775 S.C.R., p. 205 C.C.C. (See also R. v. Smith (2001), 2001 20968 (ON CA), 161 C.C.C. (3d) 1 (Ont. C.A.), at pp. 24-25). In sum, I am not at all persuaded that the proposed evidence, if believed, could reasonably be expected to have affected the verdict. Accordingly, I would not receive it.

THE CURATIVE PROVISO

[79] On this record, the admission of Dr. Jaffe's oath- helping evidence was the only error of potential consequence. Assuming the worst, the jury would have used it to explain the inconsistencies in Ms Glover's testimony and adopted her trial testimony as truthful [Note 1].

[80] Manifestly, Ms Glover's testimony did not advance the appellant's case of self-defence. By the same token, given the brief time frame within which she made her observations (between five to ten seconds) and bearing in mind the appellant's testimony that the hammer may have glanced off Parker's head in their initial struggle, and that once he got control of it, he struck Parker over [page743] the head with it, there was certainly room for the jury to reconcile Ms Glover's momentary observations with the appellant's testimony. In that event, the harm caused by Dr. Jaffe's impermissible evidence would have been negligible and it would have had no impact on the jury's verdict.

[81] Assuming the worst however, the question that must be answered is whether the verdict would necessarily have been the same had Ms Glover's direct evidence of the fight been rejected. I have framed the matter that way because disbelief of her trial testimony would have left the Crown without direct evidence helpful to its case; it would not have created evidence favourable to the appellant. Viewed that way, I am satisfied that the remainder of the evidence was so overwhelming that the verdict would necessarily have been the same even if the jury had disbelieved Ms Glover's brief direct testimony.

[82] Earlier in these reasons, I outlined the evidence for and against the defence of self-defence. I see no reason to review it. Suffice it to say that in my opinion, the circumstantial case against the appellant, based as it was on a powerful body of forensic evidence, betrayed the appellant's version of the events and painted the picture of a one-sided onslaught. That picture would not change at a new trial. The only possible change would be the scope of Dr. Jaffe's evidence and the impact that might have, if any, on the jury's assessment of Ms Glover's credibility.

[83] In these circumstances, like Arbour J. in R. v. Arradi, 2003 SCC 23, 173 C.C.C. (3d) 1, I would adopt the following statement made by Binnie J. in R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, 185 D.L.R. (4th) 626, at para. 46:

Ordering a new trial raises significant issues for the administration of justice and the proper allocation of resources. Where the evidence against an accused is powerful and there is no realistic possibility that a new trial would produce a different verdict, it is manifestly in the public interest to avoid the cost and delay of further proceedings. Parliament has so provided.

[84] For these reasons, I would dismiss the appeal against conviction.

SENTENCE APPEAL

[85] The trial judge gave brief but succinct reasons for increasing the appellant's period of parole ineligibility from ten to 15 years. In arriving at that figure, he was not guided by the jury. As representatives of the community, they chose to make no recommendation.

[86] In his reasons, the trial judge quite properly emphasized the gravity and seriousness of the appellant's crime. This was a [page744] brutal and senseless homicide born out of misplaced jealousy and rage. The appellant's prior abusive conduct towards Ms Glover was also a serious aggravating feature. In the end, the trial judge was fully justified in increasing the appellant's period of parole ineligibility.

[87] That said, I am of the view that in raising the period from ten to 15 years, the trial judge failed to give adequate consideration to the appellant's personal circumstances and characteristics and his prospects for rehabilitation. Apart from the prior abusive conduct towards Ms Glover, the appellant had no prior convictions for violence. In respect of the crime itself, to his credit, after inflicting the terrible injuries to Parker, the appellant did not flee the scene but instead, he called the police. As well, despite the trial judge's observations that he was without remorse, the appellant did express regret for what had occurred.

[88] Other evidence available at the sentence hearing indicated that the appellant was still a relatively young man (in his early 30s at the time of the homicide) and that he had been gainfully employed for most of his adult life. A number of character letters attested to his prior good character and his family remained very supportive.

[89] Unfortunately, these redeeming features seem to have been ignored by the trial judge. Indeed, in his reasons, the trial judge stated that "there are no redeeming features that I ican discern in your character." That remark confirms my opinion that the trial judge failed to give adequate consideration to the appellant's rehabilitative prospects in imposing the sentence he did.

[90] In all of the circumstances, I am of the view that this case called for an increase in the period of parole ineligibility from ten to 12 years. Accordingly, I would grant leave to appeal the sentence and reduce the period of parole ineligibility to 12 years.

Conviction appeal dismissed; sentence appeal allowed.

Notes

Note 1: To the extent that Dr. Jaffe's evidence may also have improperly bolstered Ms Glover's evidence of prior abuse and thus assisted the Crown on the issue of the appellant's motive, the resulting prejudice would have been minimal since the evidence of prior abuse was confirmed in large part by the independent witnesses and the medical records.