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

67 O.R. (3d) 1

[2003] O.J. No. 3479

Docket No. C31117

Court of Appeal for Ontario

Charron, Feldman and Simmons JJ.A.

September 12, 2003

Criminal law -- Charge to jury -- Theories of liability -- Trial judge instructing jury on theory of liability not advanced by Crown at trial -- Trial judge entitled to do so in absence of unfairness to accused -- Unfairness occasioned to accused as defence counsel was led to believe that jury would be instructed solely in accordance with two theories advanced by Crown and was therefore deprived of opportunity to address third theory of liability in his closing address to jury.

Trial judge -- Evidence -- Alibi -- Accused charged with murder -- Defence relying on security videotape of accused at shopping mall shortly after time of murders as evidence that accused did not have reasonable opportunity to kill victims -- Crown counsel improperly characterizing this evidence in closing submissions as attempt to fabricate alibi -- No evidence of fabrication existed -- Crown's speculation of false alibi significantly undermining exculpatory value of videotape -- Trial judge instructing jury to disregard Crown's reference to false alibi because accused was not relying on defence of alibi -- Trial judge should have instructed jury to disregard reference because there was no evidence of fabrication attempt -- Trial judge also referring repeatedly to "false alibi" as one item of evidence relied upon by Crown to establish its case -- Accused's appeal from conviction allowed.

Criminal law -- Evidence -- Consciousness of guilt -- Accused charged with murder of ex-girlfriend and her sister -- Trial judge erring in permitting Crown to introduce evidence of accused's pre-arrest trip to Jamaica with his father and his failure to return to Canada with his father as evidence of flight from which jury could infer consciousness of guilt -- Trial judge erring in permitting Crown to introduce evidence of hostile climate towards accused in Jamaica to rebut possible defence argument that accused's surrender to police and return to Canada were voluntary -- Evidence having no probative value and being highly prejudicial -- Trial judge later reversing his ruling and telling jury to disregard this evidence on issue of consciousness of guilt -- Trial judge nevertheless referring to evidence in his charge as circumstantial evidence relied on by Crown to establish consciousness of guilt and not telling jury to disregard it.

Criminal law -- Evidence -- Expert evidence -- "Staging" crime scene -- Criminal profiling -- Accused charged with murder of ex-girlfriend and her sister -- Trial judge permitting Crown to call expert evidence [page2 t]hat crime scene was staged -- Witness' evidence going beyond staging and including inadmissible evidence of criminal profiling -- Trial judge erring in permitting witness to testify as to motivation of killer and killer's personal characteristics -- Scientific reliability of criminal profiling not demonstrated -- Criminal profiling evidence approaching ultimate issue -- Evidence highly prejudicial -- Trial judge failing to properly circumscribe expert evidence in his charge to jury -- Accused's appeal from conviction allowed.

Criminal law -- Evidence -- Identification evidence -- Identification evidence against accused important to Crown's case but very weak -- Trial judge failing to instruct jury on weakness of evidence and presenting evidence in manner which may have bolstered its reliability -- Instructions inadequate.

The accused was charged with the murder of a former girlfriend, M, and M's sister T. It was the Crown's theory at trial that the accused never accepted that his relationship with M was over, that he relentlessly stalked and harassed her, and that he decided to kill her because she was about to leave for the United States. According to this theory, the accused enlisted the help of his cousin K. No forensic evidence was found to link the accused to the crime scene. The victims' house had been ransacked, but only a few items owned by or relating to M were taken. It was the theory of the Crown that the crime scene had been staged to make it appear that a break- in had occurred and to deflect attention away from the likely perpetrator. K was arrested when the police discovered that his DNA profile matched a DNA profile found under M's fingernails. At the time of K's arrest, the accused was in Jamaica. He had travelled there with his father the month before, but had not returned with him as scheduled. The Crown's theory was that the accused's overstay was evidence of flight indicating consciousness of guilt and that he returned to Canada only when he realized that his life was in danger in Jamaica, where members of the victims' extended family were well-known public figures.

K testified for the Crown at the accused's trial and implicated the accused in the murders. The trial judge permitted the manager of the Behavioural Sciences Section of the Ontario Provincial Police to give expert evidence on crime scene staging. The witness' evidence went beyond staging. Despite the Crown's assurance before the trial judge's ruling that he would not elicit evidence relating to motivation, the expert gave her opinion about the motivation of the perpetrator for staging the scene and a description of the most likely suspect as someone who had a particular interest in M.

The Crown also relied on identification evidence of witnesses who testified that they had seen a man in a walkway across the street from the victims' home on the morning that the victims were killed. Two Crown witnesses gave evidence directly implicating the accused as that man. One witness, L, was shown a police photo line-up about a month after the murders. He was 90 per cent sure that the accused's photograph was a photograph of the man he had seen in the walkway and about 30 per cent sure that another man's photograph was of the man in the walkway. He claimed that he would recognize the person again if he saw him in court, but did not identify the accused as that person in court. The other witness, D, picked someone other than the accused in a photo line-up shortly after the murders, yet purported to identify the accused in-dock a year and a half later.

The accused did not testify at trial. The defence theory was that K, a psychopath with a propensity for violence, was the sole killer. The defence relied heavily [page3 o]n a security videotape that showed the accused at a shopping mall minutes after the homicide, arguing that this was extremely compelling evidence that he could not have been present at the victims' home when they were killed. In his submissions to the jury, Crown counsel characterized this evidence as evidence of a "false alibi", arguing that the accused had deliberately created a false alibi by going to the shopping mall minutes after the murders for the purpose of being captured on a security video. The trial judge referred to the Crown's false alibi theory on two occasions during his charge to the jury. He told the jury to disregard the Crown's reference to a possible false alibi as the accused was not relying on the defence of alibi. Notwithstanding this instruction, he repeatedly referred to the "false alibi" as one item of evidence relied upon by the Crown to establish its case.

The Crown at trial relied on two alternative theories of how the accused participated in the murders: either the accused killed both victims himself, with the help of K; or K killed one or both victims, with the accused's help. It was clear from the Crown's conduct of its case throughout the trial that either Crown theory depended on the jury being satisfied that the accused was present in the home when the victims were killed. In addition to these two theories, the trial judge told the jury that they could find the accused guilty even if he was not present in the home, if they were satisfied that the accused aided or abetted K in killing the victims. The trial judge told the jury that it would be critical to their determination that the accused was an aider and abettor for them to find as a fact that the accused had the sole motive to kill M, that K had no motive to kill either sister, and that a false break and enter was staged to divert suspicion from the accused.

The accused was convicted of first degree murder in relation to M and of manslaughter in relation to T. He appealed.

Held, the appeal should be allowed.

The party seeking to introduce expert opinion evidence must meet four criteria: relevance, necessity, the absence of any other exclusionary rule and a properly qualified expert. Even where these requirements are met, the evidence may be rejected if its prejudicial effect on the conduct of the trial outweighs its probative value. There was no reason to interfere with the trial judge's discretion to admit the expert opinion testimony in relation to staging the crime scene evidence had it been properly restricted within that scope. However, the expert's testimony, from the outset, went far beyond the scope of properly admissible evidence and eventually included evidence of criminal profiling pertaining to the perpetrator's likely motives for staging the scene and personal chracteristics, that was clearly inadmissible. Moreover, while the evidence as it related to staging may have met the four criteria set out above, the manner in which that evidence was packaged for the jury may have enhanced the likelihood that the jury would give the expert opinion more weight than it deserved. The description of the expert's field of operation covered some 30 pages of transcript, most of which was unrelated to her opinion that the crime scene was staged and it enhanced the likelihood that the jury would give the expert opinion about staging more weight than it deserved. Further, the expert was permitted to bolster her opinion that the crime scene was staged by stating that she had had her opinion verified by more than ten colleagues similarly trained and experienced in this field. This hearsay evidence was clearly inadmissible.

More importantly, the expert's testimony strayed impermissibly into the field of criminal profiling when she gave her opinions about the perpetrator's likely motivation for staging the crime scene and his characteristics as a person associated with the victims and having a particular interest in M. Expert evidence [page4 a]bout why an offence was committed in a particular manner and who is more likely to have committed the offence has generally not been admitted in Canada or elsewhere. Criminal profiling is a novel field of scientific evidence, the reliability of which was not demonstrated at trial. The expert's criminal profiling evidence amounted to little more than educated guesses and was inadmissible. The criminal profiling evidence also approached the ultimate issue in this case and, hence, was highly prejudicial. That prejudice was further heightened by the limits placed on defence counsel's cross-examination and by the prominence that the trial judge gave to the expert evidence in his charge to the jury.

The trial judge erred in permitting the Crown to introduce evidence about the accused's trip to Jamaica and his overstay as evidence of flight from which the jury could infer consciousness of guilt, and to introduce evidence of the hostile climate of the populace in Jamaica to rebut the possible defence argument that the accused's surrender to the police and return to Canada one month later was voluntary. That evidence had no probative value and was highly prejudicial. The trial judge also erred in his instructions to the jury regarding this evidence. After both counsel had completed their closing addresses to the jury, the trial judge, on his own motion and contrary to his earlier ruling, advised counsel of his intention to tell the jury to disregard the Jamaica evidence as it related to consciousness of guilt. He should have told the jury not to consider this evidence at all. Notwithstanding his instruction to disregard the Jamaica evidence on the issue of consciousness of guilt, the trial judge referred to the evidence towards the end of his charge, referring to the Jamaica trip as one of the aspects of the accused's after-the-fact conduct which the Crown was relying on as reflecting consciousness of guilt.

An attempt by the accused to create a false alibi can constitute an affirmative piece of circumstantial evidence against him or her. However, a jury cannot be so instructed unless there is independent evidence capable of supporting a finding of fabrication. In this case, there was no evidence to support the Crown's theory that the accused had deliberately sought to get himself filmed on the security video in order to create a false alibi and the Crown should not have referred to a false alibi in his closing address. This suggestion was highly prejudicial because of the importance of the videotape evidence to the defence. This evidence provided a basis on which the jury could conclude that the accused did not have a reasonable opportunity to kill the victims. The exculpatory value of the evidence was significantly undermined by the Crown's speculation of false alibi.

The trial judge's instructions to the jury only exacerbated the problem. He repeatedly referred to the "false alibi" as one item of evidence relied upon by the Crown to establish its case. The instruction that the jury was to "disregard the Crown's reference to a possible false alibi" because "the accused is not relying on the defence of alibi" further undermined any exculpatory value of the videotape evidence. Rather, the jury should have been told that the reason that they must disregard this reference was because there was no evidence to support the Crown's theory of an attempt to create a false alibi.

The jury is not bound by the theory of the Crown (or by the theory of the defence) in its consideration of the evidence. In order to provide the jury with the assistance it requires in dealing with the evidence, the trial judge may find it necessary to instruct the jury in a manner that does not accord with the theory advanced by either Crown or defence at trial. However, the trial judge's instruction on a third theory of liability had an adverse impact on the fairness of the trial as defence counsel was led to believe that the jury would be instructed solely in accordance with the theories advanced by the Crown at trial and consequently [page5 w]as deprived of the opportunity to address the third theory of liability in his closing address to the jury. In the circumstances of this case defence counsel should have been put on notice by the trial judge, before the address to the jury, that he intended to put a third basis of liability in his charge to the jury.

The identification evidence was very important to the Crown's case. The evidence of D had no probative value on the question of the accused's identification. L's evidence was very weak. Although the trial judge gave general instructions on the frailties of identification evidence and in particular on the negligible value of in-dock identification, his juxtaposition of L's and D's evidence may have left the jury with the impression that D's evidence had some evidentiary value and that L's evidence was more reliable in conjunction with D's than it was standing alone. Moreover, the trial judge failed to instruct the jury that they were entitled to give some weight to L's failure to identify the accused at trial. The trial judge's repeated reference to L's evidence as "identification" in his instructions to the jury was a dangerous exaggeration of L's description of the man he had seen in the walkway. Finally, the Crown erroneously stated that all but one of the walkway witnesses described the hair of the person seen in the walkway as close cropped and shaved up the sides (like that of the accused at the time of the offences), when in fact only one witness described the man as having the sides of his head shaved bald. This error was repeated by the trial judge. The Crown's claim that L described the man as having a short, shaved haircut was contrary to the evidence. Given the critical importance of L's evidence, this error was not harmless. The instructions to the jury on identification evidence were inadequate and constituted reversible error.

APPEAL from a conviction for first degree murder and manslaughter.

R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, 114 D.L.R. (4th) 419, 89 C.C.C. (3d) 402, 29 C.R. (4th) 243, apld People v. McDonald, 231 A.D.2d 647 (1996); People v. Singh, 37 Cal. App. 4th 1343 (1995); R. v. Gilfoyle, [2001] 2 Cr. App. Rep. 57, [2000] E.W.J. No. 7209 (QL) (C.A.); United States v. Yost, 24 F.3d 99 (10th Cir. 1994), consd Other cases referred to R. v. Clark, [1998] O.J. No. 5590 (QL), 86 O.T.C. 57, 86 O.T.C. 36 (Gen. Div.); R. v. Cousins (1997), 1997 14647 (NL CA), 155 Nfld. & P.E.I.R. 169, 481 A.P.R. 169, 119 C.C.C. (3d) 432 (Nfld. C.A.) [Leave to appeal to S.C.C. refused (1998), 226 N.R. 399n, 165 Nfld. & P.E.I.R. 360n, 509 A.P.R. 360n]; R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275, 191 D.L.R. (4th) 60, 259 N.R. 156, 148 C.C.C. (3d) 41, 36 C.R. (5th) 261; R. v. Gregory (1981), 77 Cr. App. Rep. 41 (C.A.); R. v. Groot, 1999 672 (SCC), [1999] 3 S.C.R. 664, 144 C.C.C. (3d) 287, affg (1998), 1998 2151 (ON CA), 41 O.R. (3d) 280, 129 C.C.C. (3d) 293 (C.A.) [Leave to cross-appeal to S.C.C. refused (1999), 237 N.R. 393n]; R. v. Hibbert, [2002] 2 S.C.R. 445, 2002 SCC 39, 211 D.L.R. (4th) 223, 287 N.R. 111, 163 C.C.C. (3d) 129, 50 C.R. (5th) 209, [2002] S.C.J. No. 40 (QL); R. v. J. (J.-L.), 2000 SCC 51, [2000] 2 S.C.R. 600, 192 D.L.R. (4th) 416, 261 N.R. 111, 148 C.C.C. (3d) 487, 37 C.R. (5th) 203 (sub nom. R. v. J.-L.J.); R. v. Kent (1986), 1986 4855 (MB CA), 40 Man. R. (2d) 160, 21 C.R.R. 372, 27 C.C.C. (3d) 405 (C.A.); R. v. Klymchuk (2000), 2001 28406 (ON SC), 155 C.C.C. (3d) 423 (Ont. S.C.J.); R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, 30 O.A.C. 81, 88 N.R. 161, 44 C.C.C. (3d) 193, 66 C.R. (3d) 1; R. v. Oakwell, [1978] 1 All E.R. 1223, 1 W.L.R. 32, 142 J.P. 259, 122 Sol. Jo. 30, 66 Cr. App. Rep. 174 (C.A.); R. v. Parent, 2001 SCC 30, [2001] 1 S.C.R. 761, 199 D.L.R. (4th) 622, 268 N.R. 372, 154 C.C.C. (3d) 1, 41 C.R. (5th) 199; R. v. Parsons (1996), 1996 11073 (NL CA), 146 Nfld. & P.E.I.R. 210, 456 A.P.R. 210 (C.A.) [Leave to appeal to S.C.C. refused (1997), 161 Nfld. & P.E.I.R. 90n, 497 A.P.R. 90n, 222 N.R. 80n]; R. v. Peavoy (1997), 1997 3028 (ON CA), 34 O.R. (3d) 620, 117 C.C.C. (3d) 226, 9 C.R. (5th) 83 (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; [page6 []cf2]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 Criminal Code, R.S.C. 1985, c. C-46, ss. 22, 587 Authorities referred to Kaufman, F., Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin (Toronto: Queen's Printer for Ontario, 1998) Ormerod, D.C."The Evidential Implications of Psychological Profiling" (1996) Crim. L.R. 863

Michael Bernstein, for respondent. James Lockyer and David M. Tanovich, for appellant.

The judgment of the court was delivered by

CHARRON J.A.: --

I. OVERVIEW

[1] In the morning of August 16, 1995, two teenaged sisters, Marsha and Tamara Ottey, were stabbed to death in their home. The appellant and his cousin, Adrian Kinkead, were jointly charged with their murders. The charges were eventually severed and the two men were tried separately.

[2] Following his trial by a judge and jury, the appellant was convicted of first degree murder in relation to Marsha Ottey and of manslaughter in relation to Tamara Ottey. The appellant was sentenced to life imprisonment on the first charge and to 15 years' concurrent imprisonment on the second charge. He appeals against both convictions.

[3] This court heard the appellant's appeal at the same time as it heard Adrian Kinkead's appeal [Note 1] against his convictions for the murders of Marsha and Tamara Ottey. This judgment deals with the appeal by Mr. Ranger only.

[4] The appellant advances numerous grounds of appeal in support of his overarching contention that his trial was unfair. Some of the grounds relate to the admission of evidence, the more significant relating to expert opinion and after-the-fact conduct. With respect [page7 t]o the first category of evidence, the appellant argues that the trial judge erred in admitting unscientific criminal profiling analysis as expert opinion evidence. He submits that, in the result, the Crown effectively and improperly couched its theory of the case in scientific terms by having an expert link the crime scene, described as a staged break-in, to the appellant.

[5] With respect to the after-the-fact conduct, the appellant submits that the trial judge erred in admitting evidence relating to his trip to Jamaica, months after the events in question, as evidence of flight from which the jury could infer a consciousness of guilt when there was no evidentiary basis to support any such inference. The appellant submits that the prejudicial effect of this evidence was further heightened by the narrative provided by the investigating officer, describing first, how inmates at the prison in Jamaica were shouting at him (after the appellant was taken into custody) that they wanted to kill the appellant to avenge the Ottey sisters, and second, how a mob of 300 to 400 local people had gathered at the airport at the time of their departure from Jamaica shouting "shame" and "you shamed Jamaica."

[6] The other grounds of appeal concern the trial judge's instructions to the jury, the more significant relating to the Crown's theory of false alibi, the theories of liability, and the identification evidence. On the first point, the appellant submits that the trial judge's instructions were inadequate to remedy the prejudice occasioned by the Crown's suggestion to the jury that the appellant attempted to fabricate an alibi when there was no evidence to support such a theory. On the second point, the appellant submits that the fairness of the trial was irremediably undermined when the trial judge, after the addresses of counsel and contrary to the pre-closing submissions and pre-charge discussions, left the jury with an additional theory of liability that the Crown had explicitly disavowed. On the third point, the appellant submits that the trial judge's instructions on identification evidence were inadequate to convey to the jury the danger of accepting the very weak, but critical, evidence of two neighbours who placed the appellant in the walkway across from the Ottey residence either on the morning before, or the morning of, the homicides.

[7] I agree with the position advanced by the appellant on each of the grounds of appeal that I have described so far. There can be no question that the cumulative effect of these errors necessitates a new trial. I would therefore order a new trial.

[8] I will deal in turn with each of the grounds of appeal that I have identified as more significant. In light of my conclusion that there must be a new trial, I will address the other grounds of [page8 a]ppeal raised by the appellant only to the extent that they may impact on the conduct of the new trial.

II. FACTS

[9] At the time of their deaths, Marsha Ottey was 19 years old and Tamara Ottey was 16 years old. They both lived at home with their mother in Scarborough. Marsha Ottey was a gifted athlete and had won a full track and field scholarship to attend Arkansas State University. She was scheduled to leave for university two days after she was killed. Tamara Ottey was a high school student, working during her summer vacation.

[10] Avis Ottey, the mother of Marsha and Tamara Ottey, left for work at about 7:00 a.m. on August 16, 1995. Marsha and Tamara were both at home at the time she left. Tamara was getting ready to go to work herself. Marsha had finished working for the summer and was making final preparations to leave for Arkansas. She was still in bed when her mother left for work.

[11] Avis Ottey returned home later in the day between 5:15 and 5:20 p.m. Once inside, Mrs. Ottey immediately noticed that the furnishings were in a state of disarray and that something appeared to be wrong. She tried to call 911, but could not get a dial tone. She went to the basement, where she saw Marsha lying on the floor. She ran to a neighbour's house to obtain assistance. Mrs. Ottey directed her neighbour to the basement of her home, where the neighbour discovered the dead bodies of Marsha and Tamara.

[12] Emergency crews arrived shortly after. Marsha Ottey was found partially clothed, lying on her stomach. Tamara was found fully clothed, lying on her side. Both sisters had been viciously stabbed and were covered in blood. Autopsies revealed the cause of death for both young women as multiple cut and stab wounds to their neck and chest areas.

[13] Although the house appeared to have been ransacked, nothing was taken other than three items: a gold necklace given to Marsha by the appellant and which she always wore, a videotape of Marsha playing soccer, and Marsha's electronic organizer. Mrs. Ottey did not discover that the videotape and electronic organizer were missing until several months later and there was some dispute at trial whether these items were in fact taken from the home on the day of the homicides. The state of the crime scene was the subject-matter of the expert opinion evidence referred to earlier and more will be said about this evidence later.

[14] The appellant became an immediate suspect in the police investigation into these deaths because of his relationship with Marsha Ottey. Marsha had met the appellant in high school in [page9 1]990. The two began dating in 1991 and were involved in a romantic relationship for about three years. Marsha Ottey ended this relationship in the fall of 1994 because the appellant had become too possessive and controlling. It was the Crown's position at trial that the appellant never accepted that his relationship with Marsha was over and that he had relentlessly stalked and harassed her. The evidence concerning the relationship between Marsha and the appellant included the testimony of 18 Crown witnesses who gave evidence about statements that Marsha Ottey made to them after the break-up of the relationship. Their evidence forms the subject-matter of one of the additional grounds of appeal raised by the appellant that I will deal with at the end of this judgment.

[15] The Crown's theory at trial was that the appellant decided that if Marsha was going to go to the United States and he couldn't have her, then no one would, and that the appellant enlisted Adrian Kinkead to help him kill Marsha. According to the Crown's theory, the appellant stood in the walkway across from the Ottey home on the mornings preceding the homicides, staking out the early morning activities at the Ottey home. On the morning of the homicides, the appellant and Adrian Kinkead returned to the Ottey home. Mr. Kinkead intercepted Tamara Ottey as she walked towards her bus and forced her to return to the Ottey house. The appellant remained in the walkway across the street until Adrian Kinkead and Tamara Ottey were safely inside, and then the appellant also entered the house.

[16] The Crown called five of the Ottey neighbours in support of this theory. The neighbours testified about seeing a man in a walkway across the street from the Ottey home on the mornings preceding, or morning of, August 16, 1995 and about seeing Tamara being led to her house by a man on the morning of August 16. Two of the witnesses gave evidence implicating the appellant as the man seen the mornings before and the morning of the homicides. Their evidence is the subject of appeal and will be described in more detail later.

[17] The police approached the appellant on August 17, 1995, the day after the homicides. The appellant provided the police with a statement and with the clothes that he had been wearing the day of the homicides. The appellant was placed under 24- hour surveillance. During the subsequent investigation, no forensic evidence was found to link the appellant to the crime scene.

[18] The investigation continued for months without any arrest being made. In early January 1996, the police uncovered a central piece of evidence in the case. Concurrent with the Ottey murder investigation, the police were investigating the robbery-murder of a subway attendant and two aggravated sexual [page10 ]assaults that occurred in October 1995. The appellant's cousin, Adrian Kinkead, was a suspect in these investigations. During their investigation into these other crimes, the police discovered that Adrian Kinkead's DNA profile matched a DNA profile found under one of Marsha Ottey's fingernails. The police arrested Mr. Kinkead in February 1996 and charged him with the murders of Marsha and Tamara Ottey, as well as the murder of the subway attendant and the two aggravated sexual assaults. In July 1997, Adrian Kinkead entered guilty pleas to the murder of the subway attendant and to the aggravated sexual assaults. Following a trial by judge and jury, Adrian Kinkead was convicted in June 1999 of the murders of Marsha and Tamara Ottey.

[19] In February 1996, following Adrian Kinkead's arrest for the murders of Marsha and Tamara Ottey, the appellant was arrested and also charged with these murders.

[20] At the time of Adrian Kinkead's arrest, the appellant was in Jamaica. He had travelled there with his father the month before, but had not returned with his father as scheduled. The Crown's theory was that the appellant's overstay was evidence of flight indicating consciousness of guilt and that the appellant only returned to Canada when he realized that his life was in danger in Jamaica. A police officer who went to Jamaica to bring the appellant back to Canada testified about threats made about the appellant in Jamaica in connection with the deaths of Marsha and Tamara Ottey. The evidence relating to the appellant's trip to Jamaica is also the subject of appeal and I deal with it further on.

[21] The appellant and Adrian Kinkead had a very close relationship and spent a lot of time together before August 16, 1995. The records for the appellant's cellular phone established that the appellant telephoned Adrian Kinkead over 100 times between mid-June and mid-July 1995. Surveillance evidence following the deaths of the Ottey sisters showed that the appellant's formerly frequent contacts with Adrian Kinkead came to a complete stop, with one exception that is not relevant to this appeal.

[22] Adrian Kinkead testified for the Crown at the appellant's trial. Mr. Kinkead had previously given the police three versions of events, only one of which implicated the appellant. Mr. Kinkead did not adopt any of these three versions at trial. The trial judge ruled that Mr. Kinkead was an adverse witness and gave the Crown leave to cross-examine him. Mr. Kinkead testified that he, the appellant, and Tamara planned to take Marsha on a surprise farewell outing to Canada's Wonderland on the morning of August 16, 1995. After the appellant and Mr. Kinkead arrived at the house, the appellant and Marsha went to the basement. Mr. Kinkead and Tamara were kissing when they heard a [page11 ]struggle in the basement. They went downstairs to investigate. Mr. Kinkead saw the appellant threatening Marsha with a knife. Tamara fainted when she saw the appellant. Mr. Kinkead testified that he attempted to intervene in the struggle between Marsha and the appellant. This was Adrian Kinkead's explanation of why his DNA evidence was under Marsha's fingernail. Mr. Kinkead fled the Ottey home after the appellant threatened him with a knife. He returned to the house later that morning to see if the appellant was still there and to retrieve his hat. Upon his return to the house, Mr. Kinkead discovered the dead bodies of Marsha and Tamara Ottey. Mr. Kinkead did not call the police, but rather, called the appellant on his cellular phone and arranged to meet him later that day. The appellant told Mr. Kinkead not to talk to anyone about what happened, or else the two of them would spend the rest of their lives in jail.

[23] The appellant did not testify or call any evidence at his trial. The defence theory at trial was that Adrian Kinkead, a psychopath with a propensity for violence, was the sole killer. The appellant relied heavily on a security videotape that showed him at the Scarborough Town Centre minutes after the homicides, arguing that this was extremely compelling evidence that he could not have been present at the Ottey home when Marsha and Tamara were killed. The Crown's closing submissions and the trial judge's charge to the jury regarding this evidence are the subject of appeal and are discussed later in these reasons.

[24] I will now deal with each issue in turn.

III. THE EXPERT OPINION EVIDENCE

A. The Voir Dire on Admissibility

[25] Detective Inspector Kathryn Lines is the manager of the Behavioural Sciences Section of the Ontario Provincial Police. The Behavioural Sciences Section provides the police with specialized investigative support services, including criminal profiling. Criminal profiling involves the analysis of a crime scene and other details about a crime, in conjunction with the analyst's understanding of cases of a similar nature, for the purpose of inferring the motivation for the offence and producing a description of the type of person likely to be responsible for its commission.

[26] Detective Inspector Lines was contacted by the police investigators in the Ottey case in September 1996, several months after the appellant and Adrian Kinkead had been arrested and charged with the murders of Marsha and Tamara Ottey. Detective Inspector Lines reviewed photographs and a videotape of the crime scene and attended at the Ottey home [page12 ]herself. She also received information from the police regarding their investigative findings as well as the post- mortem reports. Based on all the information provided to her, Detective Inspector Lines formed the opinion that whoever killed the Ottey sisters had staged a break-in at the Ottey home, that the perpetrator had staged the scene in order to divert suspicion from himself, and that the perpetrator had a particular interest in Marsha Ottey.

[27] At trial, the Crown sought to call Detective Inspector Lines as an expert witness regarding crime scene staging in order to elicit her opinion that the crime scene in this case had been altered to look like a break-in. The Crown submitted that this evidence was relevant to identity because a staged crime scene is circumstantial evidence that the crime was committed by someone who wants to divert suspicion from himself as a likely suspect, which in this case would include the appellant.

[28] Defence counsel argued that the proposed evidence was not necessary because the jurors did not require the assistance of an expert to determine whether the crime scene appeared staged. In particular, defence counsel noted that the evidence of another police officer, Detective Ian Mann, who identified photographs and a videotape of the crime scene, already provided an evidentiary basis for the jury to conclude on their own that the crime scene was staged.

[29] Based on the submissions of counsel, the trial judge ruled as follows:

I am satisfied that opinion evidence is needed in this case in the sense that it will likely provide information that is outside the experience and knowledge of the jury. The factual issue of whether a break and entry is authentic or staged is not likely to be a subject within the common knowledge of the jurors. This, of course, is subject to the Crown qualifying the proposed expert as an expert in this particular area.

[30] Detective Inspector Lines was then called as a witness in the presence of the jury. Crown counsel questioned the witness at length on her qualifications. In the course of that testimony, she described criminal profiling very broadly as "a behavioural approach to criminal investigation" and gave a number of examples of the kind of services provided by the Behavioural Sciences Section.

[31] Detective Inspector Lines testified that she had done criminal profiling in approximately 1,000 cases, about 500 of which had been homicide investigations. Twenty-five of the cases that she had analyzed had involved crime scene staging, half of which were homicides. In explaining the meaning of "staging", the witness stated that it was an activity that occurs where it appears that the offender intends to misdirect an investigation. [page13 ]

[32] Before cross-examining Detective Inspector Lines on her qualifications, defence counsel sought clarification of the scope of expert qualification sought by the Crown. The Crown replied affirmatively to the trial judge's questions: "I take it you're proffering her as an expert witnesses in the area of staged crimes, are you? And, in particular, as to whether or not there was a staged break and enter in relation to the homicide of the two Ottey sisters?" Defence counsel then cross- examined Detective Inspector Lines on how an opinion that a crime scene was staged could be verified. It appears from the witness's testimony that no independent or objective process exists to verify an analyst's staging opinions. Detective Inspector Lines testified, however, that one project involving the utility and accuracy of criminal profiling was presently under way.

[33] Following Detective Inspector Lines' testimony about her qualifications and her field of expertise, the trial judge invited submissions from counsel in the absence of the jury. Neither the Crown nor defence counsel made submissions about Detective Inspector Lines' qualifications. The trial judge briefly ruled that she was qualified "to give expert opinion as to staged crimes".

[34] Following this ruling, defence counsel expressed concern, and sought clarification, about whether Detective Inspector Lines would be testifying about the motivation of perpetrators. The Crown replied: "I'm not going there at all." The Crown explained that he would show Detective Inspector Lines photographs of the crime scene and "have her tell us by means of the photographs what it is about this scene that tells her that it's a staged scene". A discussion then ensued about whether the Crown could ask Detective Inspector Lines about the only items missing from the Ottey home (a gold necklace, an electronic organizer, and a videotape), which belonged to Marsha Ottey. Defence counsel was concerned that this area of questioning went "into the psychological and psychiatric realm of what would be the motivation of a perpetrator", an area for which the witness was not qualified. The Crown agreed to simply ask Detective Inspector Lines whether the fact that these were the only missing items added to or detracted from her opinion that the crime scene was staged.

[35] As I will describe in more detail later, Detective Inspector Lines' testimony was not confined to the opinion that the crime scene was staged. Notwithstanding the Crown's assurance that he would not elicit evidence relating to motivation, Detective Inspector Lines' examination-in-chief included an opinion about the motivation of the perpetrator for staging the scene and a description of the most likely suspect as someone who had a particular interest in Marsha Ottey. [page14 ]

B. The Issues on Appeal

[36] The appellant submits that the trial judge erred in permitting Detective Inspector Lines to give expert evidence. The appellant makes three arguments in support of this ground of appeal. First, the evidence did not meet the reliability or necessity criteria for admissibility of expert evidence set out in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, 89 C.C.C. (3d) 402. Second, the trial judge improperly restricted defence counsel's cross- examination of Detective Inspector Lines when he sought to establish that her opinion may have been tainted by the opinion of the investigating officers that the appellant was responsible for the murders. Third, the trial judge's charge to the jury about this expert testimony was deficient. Counsel for the appellant takes the position that, if the expert testimony had been admitted, albeit in error, solely on the question whether the crime scene was staged, this may be a case for the application of the curative proviso. However, in light of the wider scope of the opinion evidence, it is submitted that a new trial should be ordered on this ground alone.

[37] The Crown responds to this ground of appeal by arguing that defence counsel did not object at trial to the reliability of the expert evidence, but limited his objections to the necessity of this evidence. With respect to necessity, the Crown argues that the jury likely would not have had any way to assess how burglars typically behave and that Detective Inspector Lines' evidence offered the jury insights into the normal behaviour of burglars, which would have assisted the jury in deciding if the break-in at the Ottey home in fact was staged. The Crown also argues that the trial judge properly restricted defence counsel in his cross-examination when defence counsel attempted to ask Detective Inspector Lines questions beyond her expertise. Last, the Crown submits that the trial judge's charge regarding this expert evidence was fair and adequate, and that the trial judge provided the jury with sufficient warning not to be overwhelmed by the expert evidence and that he properly characterized Detective Inspector Lines' evidence for the jury.

C. The Testimony of the Expert Witness

[38] The Crown questioned Detective Inspector Lines extensively regarding her opinion that the crime scene had been staged to look like the Ottey home had been broken into. Much of the Crown's examination-in-chief of Detective Inspector Lines was spent reviewing numerous photographs of the Ottey home as it appeared after the discovery of the bodies of Marsha and [page15 ]Tamara Ottey, with the witness explaining why, in her opinion, the depicted scenes appeared staged.

[39] As noted earlier, in addition to her evidence that the apparent break-in to the Ottey home had been staged, the trial judge permitted the Crown to elicit opinion evidence from Detective Inspector Lines about the motivations or characteristics of the likely perpetrator. This happened on three occasions during the course of the witness's examination- in-chief.

[40] On the first occasion, the Crown sought to ask Detective Inspector Lines whether the fact that the videotape, but not its case, appeared to be missing affected her opinion that the apparent break-in was staged. Defence counsel objected to this question, arguing that this went beyond the scope of what had been ruled admissible. The trial judge remarked that he had not made any specific ruling with respect to the missing items. After hearing further from Crown counsel, the trial judge observed that what the Crown was really seeking was an ancillary opinion that this evidence suggested that the perpetrator was interested in Marsha Ottey, and not Tamara. Crown counsel agreed with the trial judge's suggestion. Defence counsel objected to this line of questioning, arguing that this required speculation about the perpetrator's psychology, an area beyond the scope of the witness's expertise. The trial judge rejected this position and permitted the Crown to ask the question. Detective Inspector Lines testified that there were two points of interest about the missing videotape. The first was that the person who took the video would know what the contents were because of the label and the second was that, in leaving the case behind, it might not be noticed that the tape was missing.

[41] On the second occasion, at the beginning of the second day of Detective Inspector Lines' testimony, the Crown advised that he intended to elicit Detective Inspector Lines' opinion about the class of persons who normally engage in staging, in addition to eliciting her opinion that the break-in to the Ottey home had been staged. In connection with the issue of the class of persons likely to stage crime scenes, the Crown sought a ruling permitting him to put to Detective Inspector Lines a passage of a book entitled "Crime Classification Manual". The particular passage read as follows:

Staging is when someone purposely alters the crime scene prior to the arrival of police. There are two reasons why someone employs staging: to redirect the investigation away from the most logical suspect or to protect the victim or victim's family. When a crime is staged, the responsible person is not someone who just happens upon the victim. It is almost always someone who had some kind of association or relationship with the victim.

(Emphasis added) [page16 ]

[42] Defence counsel objected to this area of questioning on the basis that the Crown, in essence, was putting its theory that the appellant fit within the class of likely perpetrators through the mouth of the expert witness. Defence counsel argued that this amounted to "dime store psychology" and that it was very dangerous to admit this kind of evidence. The trial judge rejected defence counsel's objection on the basis that the evidence would only go as far as establishing that, if the break-in was staged, the perpetrator likely would have known the victim. The Crown then proceeded to put the passage to Detective Inspector Lines, who adopted its contents.

[43] On the third occasion, the Crown asked Detective Inspector Lines whether she drew any inference from the facts that Marsha Ottey's identification was found outside her wallet on a table top and that the only items missing from the Ottey home belonged to Marsha Ottey. Detective Inspector Lines replied that she drew an inference of "a particular interest in the possessions or things related to Marsha Ottey".

[44] In cross-examination, defence counsel first asked Detective Inspector Lines questions relating to her relationship with the police investigators with whom she worked on this case. Detective Inspector Lines described her role in the following exchange:

Q: So you obviously had discussions with the Crown and the investigators about their theory of this crime, right?

A: Yes, sir, I did.

Q: And you know why you were being asked questions specifically about missing items at the scene, right?

A: Yes, sir.

Q: And you know that the reason for doing that was to attempt to link Mr. Ranger, in the box here, into this crime scene, right?

A: My purpose actually in them bringing this case to me, my understanding was to provide an independent review. The purpose of my review was an exercise to see if it did coincide with those investigators, and it did.

Q: Okay. And their view is that Mr. Ranger committed this crime, right?

A: Yes. He was under arrest at that time.

Q: And your view coincides with the view of the investigators.

A: It would, yes.

[45] The trial judge at this point interrupted defence counsel's cross-examination to remind the jury that it was their opinion that mattered, not the views of Detective Inspector Lines or the [page17 ]police. A discussion followed in the absence of the jury about this line of questioning. The trial judge ruled that any linkage between the witness's opinion and the appellant as a known suspect was a matter for argument only. It is in this respect that the appellant submits that defence counsel's cross-examination was improperly restricted. More will be said about this later.

[46] Following this discussion, defence counsel moved on to a line of questioning intended to show that the staging suggested that the perpetrator did not necessarily have an interest in Marsha Ottey, as the witness had testified but, rather, that he had an interest in Tamara. In this respect, defence counsel questioned Detective Inspector Lines about Tamara Ottey's wallet, which appeared to have been moved during the staging of the crime scene, about items belonging to Marsha Ottey that were not disturbed or taken, and about the fact that Marsha's bedroom was no more in a state of disarray than the other rooms. Defence counsel also questioned Detective Inspector Lines about perpetrators retaining items taken from the crime scene and reviewed with her the fact that none of the items missing from the Ottey home, which all belonged to Marsha Ottey, were found during a search of the appellant's home.

[47] In re-examination, the Crown asked Detective Inspector Lines: "And what else is it, apart from [Marsha Ottey's] belongings if those are excluded, what else is it about this crime scene that tells you that there's an interest in Marsha Ottey?" To which Detective Inspector Lines replied: "The injuries that were inflicted on her." Defence counsel immediately objected to this question and answer, but was overruled by the trial judge on the basis that it was the defence who had opened the area. The Crown further re-examined the witness on a number of matters related to the perpetrator's identity or likely motivations. I note the following by way of example: whether the fact that DNA was left behind by only one person said anything on the question whether that person was the only one in the house at the time of the murders; whether, assuming there was more than one person at the scene at the time of the murders and one left his DNA at the scene, this told the witness anything about who staged the crime scene; and whether, assuming the items were taken by a person having some prior association with Marsha, it would surprise the witness if those items were not found in the possession of that person when his residence was searched. The witness answered all these questions in the negative. With respect to the latter question, she explained that "due to the fact of the connection with -- with staging and someone's potential connection with the crime, it may, in fact, be dangerous to retain such items for any period of time". [page18 ]

D. Analysis

[48] The test for the admissibility of expert evidence is well established and need not be discussed at length here. It was consolidated by the Supreme Court of Canada in R. v. Mohan, supra, and subsequently restated in many other cases. The party seeking to introduce expert opinion evidence must meet four criteria: relevance, necessity, the absence of any other exclusionary rule, and a properly qualified expert. Even where these requirements are met, the evidence may be rejected if its prejudicial effect on the conduct of the trial outweighs its probative value: see R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275, 148 C.C.C. (3d) 41, at para. 11. The first two criteria and the assessment of whether the probative value outweighs the prejudicial effect also include an inquiry into the reliability of the proposed evidence. In the case of novel scientific evidence, this latter inquiry is often critical.

[49] It is also well established that the application of the four Mohan criteria is case-specific. McLachlin C.J.C. (dissenting but not on this point) provided a useful summary of the law relating to the case-specific nature of the test in R. v. D. (D.), supra, at paras. 12-13. She reiterated the principle that the required determinations must be made within the factual context of the trial, having regard to the other evidence, the issues, and the particular jury. She repeated Sopinka J.'s words in R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, 44 C.C.C. (3d) 193, at para. 64, p. 218 C.C.C., that the inquiry into relevance "is very much a function of the other evidence and issues in a case". Similarly, the trial judge is in the best position to determine what are the live issues in the trial and whether the evidence will be necessary to enable the jury to dispose of them. McLachlin C.J.C. stated at para. 12 that:

[t]he point was well put in R. v. F. (D.S.) (1999), 43 O.R. (3d) 609 at p. 625 (C.A.):

The trial judge has the advantage of hearing the evidence in issue, observing the jury and being able to appreciate the dynamics of the particular trial . . . [T]he trial judge may also be in a better position to determine what may come within the normal experience of the average juror in the community in which the case is being tried.

Finally, the trial judge may be in the best position to determine whether the probative value of the evidence is outweighed by its prejudicial effect on the trial. The trial judge knows the issues, the evidence and the jury and is charged with the ultimate responsibility of running a fair trial.

[50] Hence, a trial judge's decision to admit or reject expert evidence is entitled to considerable appellate deference. McLachlin C.J.C. also noted at para. 13 that "the case-specific nature of the [page19 ]inquiry means that an appellate court cannot lay down in advance broad rules that particular categories of expert evidence are always inadmissible."

[51] Before applying the test for admissibility to the evidence in this case, I will deal with the Crown's contention that the appellant is raising some of the issues related to admissibility for the first time on appeal. The Crown submits that the defence's objection to the evidence at trial was based solely on the ground that the necessity requirement was not met and that no issue was raised with respect to the reliability of the proposed evidence. Consequently, the Crown argues that the appellant cannot, on an incomplete record, raise new issues on appeal.

[52] I find no merit to this contention. It is correct that the main focus of the defence argument was on necessity at the time the Crown first sought to introduce the expert opinion evidence. However, on my review of the record, it is clear that the argument was so tailored in response to the Crown's submission that the evidence would be restricted to the opinion that the crime scene was staged and would not include matters related to the motivations or characteristics of the perpetrator. It is also apparent from the record, the salient parts of which I have reviewed earlier, that the defence consistently objected during the course of Detective Inspector Lines' testimony when the Crown purported to present evidence that went beyond the scope as initially defined. Those later objections, without question, were based on issues relating to the lack of reliability and to the prejudicial effect of the evidence. As noted earlier, the scope of the expert opinion evidence expanded during the course of its presentation.

[53] In this case it becomes important in applying the Mohan criteria, to distinguish between, first, the expert witness's opinion that the crime scene appeared staged, and, second, her various opinions on the motivations and characteristic of the likely perpetrator as a person associated with the victims, in particular Marsha. I will refer to the first category as "crime scene evidence" and the second as "criminal profiling". By adopting these labels, I do not intend any suggestion that the question of admissibility can be determined simply by categorizing the proposed evidence. As noted earlier, such an approach would not be consistent with the case-specific nature of the test. I use these labels mainly for convenience and also to assist in identifying the scope of the expert opinion with more precision.

[54] As I will explain, I would have found no reason to interfere with the trial judge's discretion to admit the expert opinion testimony in relation to the crime scene evidence had it been properly restricted within that scope. However, Detective Inspector Lines' [page20 ]testimony, from the outset, went far beyond the scope of properly admissible evidence and, eventually, included evidence of criminal profiling that, in my view, was clearly inadmissible.

[55] I will deal first with the crime scene evidence and consider the Mohan criteria as they relate to the opinion that the crime scene was staged and then I will deal with the criminal profiling evidence.

1. The crime scene evidence

[56] As noted by the Crown at trial, the fact that the crime scene may have been staged to look as if the house had been burglared is a piece of circumstantial evidence that may provide some insight into the perpetrator's motivation and, in turn, his or her identity. No issue has been raised with respect to the relevance of this aspect of the expert evidence. Similarly, no real issue is raised with respect to the reliability of the evidence on this narrow point. The reliability of any opinion that a crime scene was staged would be very much a function of the particular witness's experience with scenes of break and enter. Further, no issue was raised with respect to Detective Inspector Lines' qualifications. The real issue with respect to her staging opinion is whether it is necessary to present this evidence through the mouth of an expert witness with all the associated dangers that this form of evidence presents. That was the crux of the defence's objection at trial. The objection is repeated on appeal.

[57] The appellant argues that expert opinion evidence on staging was not necessary. He submits that there was an evidentiary basis for the jury to conclude on its own that the crime scene was staged. The Crown had introduced photographs and a videotape of the Ottey residence. In addition, Detective Mann, an experienced forensic identification officer who had examined numerous crime scenes, including hundreds of break- ins, had already testified as to many aspects of the crime scene as it compared to the usual appearance of a burglared home. (I note, by contrast, that Detective Inspector Lines had never been personally involved in a break and enter investigation other than through the investigative support services.) For example, Detective Mann had testified about what items are generally attractive to burglars such as jewellery, identification documents such as passports and bank cards, cameras, clock radios, VCRs, and sound equipment. He testified that, in this case, a large number of such valuable and moveable items had been left at the scene. Detective Mann also testified that burglars often use bags or suitcases found at the crime scene to transport the stolen goods and that several bags [page21 ]and suitcases were found in the Ottey home after the homicides. Similarly, he observed that drawers had not been rifled through and that stereo equipment had been moved but the wires had not been disconnected as one might expect in a burglary.

[58] Hence, the appellant submits that it was not necessary to introduce additional evidence in the form of expert opinion testimony in support of the argument that the crime scene had been staged. It would have been open to the jury to draw its own conclusion on the evidence. The Crown concedes that there may have been some evidentiary foundation to suggest that the scene was staged without Detective Inspector Lines' testimony. However, the Crown takes the position that Detective Inspector Lines provided some additional insights into the normal behaviour of burglars and certain aspects of the crime scene, without which there was a significant danger that the jury would not have properly assessed the issue of whether the burglary was staged.

[59] Although the appellant's argument on the issue of necessity is not without merit, I am of the view that it was open to the trial judge to find that it was necessary to admit some form of expert opinion on this issue. As quoted earlier, the inquiry on the question of necessity "is very much a function of the other evidence and issues in a case". The trial judge was in a better position to determine whether the subject matter was one that may come within the normal experience of this jury or whether they were likely to come to a wrong conclusion without expert assistance on the issue of whether the crime scene was staged.

[60] However, the dangers associated with the reception of expert opinion evidence do not disappear simply because the evidence, on its face, meets the four criteria set out in Mohan. As noted earlier, evidence should not be admitted if its prejudicial effect outweighs its probative value. In my view, the manner in which the crime scene evidence was packaged for the jury in this case exemplifies the usual dangers associated with expert opinion evidence. I will review some of those dangers and comment further on the presentation of the crime scene evidence in this case to explain my point.

[61] The Supreme Court of Canada reviewed the dangers associated with expert opinion evidence in Mohan and more recently in R. v. D. (D.), supra. The primary danger is that the evidence may distort the fact-finding process. As stated by Sopinka J. in Mohan (at para. 19):

Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves. [page22 ]

[62] Other significant dangers include the usual resistance of the expert opinion to effective cross-examination and the reliance by the expert on out-of-court material that would be otherwise inadmissible. Finally, the admission of expert opinion evidence often results in significant costs in time and money to the parties and strains upon judicial resources.

[63] Those dangers must be considered in the balancing process that forms part of the test for admissibility. Further, the trial judge's gatekeeper function does not end with the ruling on admissibility. The expert evidence must be carefully constrained in its presentation with a view to minimizing the associated dangers so that, in the end result, the judge is still satisfied that the probative value of the evidence exceeds its prejudicial effect and is properly admissible.

[64] For example, in this case, the inference that the crime scene was staged was neither complex nor particularly sophisticated. While I defer to the trial judge's conclusion that this inference may not have been one that could have been made by the average juror without expert assistance, I am of the view that it was not necessary for the Crown to dress it up, as was done in this case, as a subset of the entire scope of services provided by the Behavioural Sciences Section of the Ontario Provincial Police Investigative Support Bureau. The description of Detective Inspector Lines' field of operation, as elicited by the Crown in examination-in-chief alone, covers some 30 pages of transcript, most of which was unrelated to her opinion that the crime scene was staged. This testimony dealt rather with the broader field of criminal profiling, including specialized training in a wide range of subject matters such as criminal harassment, drug investigation techniques, advanced law enforcement, corporate management investigations, enterprise crimes, micro-computers and child abuse. This lead- up to the presentation of the crime scene evidence, quite apart from the additional criminal profiling opinions that were elicited and which I will discuss later, did nothing to lessen the dangers discussed earlier. Rather, it served to give the staging evidence an omniscient glow that enhanced the likelihood that the jury would give the expert opinion more weight than it deserved.

[65] Further, Detective Inspector Lines was permitted to bolster her opinion that this crime scene was staged by stating that she had her opinion verified by more than ten colleagues, similarly trained and experienced in this field, from Ontario, Manitoba, California, Washington and Virginia who all agreed with her conclusion. This hearsay evidence was clearly inadmissible.

[66] I make the following additional comment about the record in this case to further explain this point on the "packaging" of the [page23 ]crime scene evidence. I agree with the appellant's submission that the factual basis that would support the inference that the crime scene was staged had already been admitted through the testimony of the identification officer, Detective Mann. All that was missing from his evidence was testimony making this specific inference. The Crown was seeking to adduce such testimony through Detective Inspector Lines. Accepting that this additional evidence was necessary, I query whether it might not have been best to present it through Detective Mann by means of a few additional questions. It seems to me that the presentation of the evidence in that form would have served the same purpose without the additional dangers presented by Detective Inspector Lines' testimony. I note in respect of Detective Mann's qualifications that he was qualified by the court to give opinion evidence in the field of forensic identification. The defence did not contest his qualifications, agreeing that Detective Mann was "very competent". Further, there was no objection at trial, or on this appeal, in respect of the numerous opinions that Detective Mann did provide about the appearance of the crime scene as it compared to the usual burglary. Indeed, it would appear from his testimony that he was eminently qualified to give this evidence.

[67] However, because of the manner in which the staging opinion evidence was presented through Detective Inspector Lines, it is my view that the danger that the jury might give the evidence more weight than it deserved far outweighed its probative value. Further, the stage was set for far-reaching opinion evidence on criminal profiling and, unfortunately, Detective Inspector Lines' evidence did include matters that went beyond the permissible scope of admissibility. This leads to the analysis of the criminal profiling evidence elicited from Detective Inspector Lines.

2. The criminal profiling evidence

[68] Earlier in this judgment, I defined criminal profiling as involving the analysis of a crime scene and other details about a crime, in conjunction with the analyst's understanding of cases of a similar nature, for the purpose of inferring the motivation for the offence and producing a description of the type of person likely to be responsible for its commission. This is by no means the only way to describe this technique. Indeed, as noted by one English author, David C. Ormerod, in his article entitled "The Evidential Implications of Psychological Profiling" (1996) Crim. L.R. 863"[d]efinitional difficulties stem from the fact that there is considerable theoretical disagreement about approaches to profiling." He describes the process as follows at pp. 865-66: [page24 ]

The profiler begins by reconstructing how the crime occurred, on which is based an inference as to why the crime happened, and culminates in an educated guess about the characteristics of the offender. This WHAT to WHY to WHO is seen as the nucleus of the criminal profile. Profiles incorporate many factors, including: evaluations of the crime scene and neighbourhood, post-mortem reports, information as to the victim's movements prior to the crime, the suspect's interaction with the victim, etc. Ideally, the resulting profile should include information as to the "age, race, occupational level, marital status, intelligence, educational level, arrest history, military history, family background, social interests, socioeconomic level, residence in relation to the crime and with whom residing, personality characteristics (rigid, passive, manipulative, aggressive), colour, age and description of vehicle, [and] suggested interview techniques for the offender.

(Footnotes omitted)

[69] The author goes on to describe the various uses of criminal profiling by the police as an investigative tool. The Honourable Fred Kaufman in the Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin (Toronto: Queen's Printer for Ontario, 1998) also discusses the use of criminal profiling as an investigative tool used to assist police in directing their investigation. The integrity of the profile used in the investigation of Guy Paul Morin was questioned by the Commission and the Report contains certain recommendations about the use of criminal profiling by the police. These included limitations on the use of criminal profiling such as the following:

Recommendation 110: Limitations upon criminal profiling

Police officers should be trained as to the appropriate use of, and limitations upon, criminal profiling. Undue reliance upon profiling can misdirect an investigation. Profiling once a suspect is identified can be misleading and dangerous, as the investigators' summary of relevant facts may be coloured by their suspicions. A profile may generate ideas for further investigation and, to that extent, it can be an investigative tool. But it is no substitute for a full and complete investigation, untainted by preconceptions or stereotypical thinking.

(Emphasis added)

[70] Accepting that criminal profiling may be a useful, albeit potentially dangerous, aid to police investigations, its use as a means of proof in a courtroom is quite another matter. It becomes important to distinguish between matters related to the description and analysis of a crime scene, the "WHAT" referred to in Ormerod's article, and matters related to the motivation or characteristics of the offender, the "WHY" or the "WHO". All aspects of expert opinion testimony of course must meet the same test for admissibility and I am not suggesting that the simple characterization of the evidence answers the question on admissibility. I am simply observing that expert opinion testimony about "WHY" [page25 ]or "WHO" usually raises more concerns. These concerns relate most frequently to two aspects of the Mohan test for admissibility: the requirement that the evidence be sufficiently reliable to warrant its admission and the requirement that its probative value exceed its prejudicial effect. I note the following examples to explain the difference.

[71] Crime scene analysis (which I find useful to label as the "WHAT" referred to earlier) results in many forms of expert opinion evidence that regularly meets the legal requirements for admissibility. A few examples readily come to mind: an expert's opinion in an arson case that a fire was not accidental but, rather, deliberately set; opinion evidence explaining the significance of blood splatters; a pathologist's opinion about the likely cause of death or of injuries observed on a deceased victim; an expert's opinion on how a motor vehicle accident happened. There are many more examples. This kind of evidence assists the trier of fact in understanding WHAT the crime scene shows. The admissibility of that kind of evidence will usually turn on questions of relevance or the witness's particular expertise. Of course, issues may also arise under any other aspect of the Mohan test. However, the scientific basis for this kind of evidence is usually not contentious.

[72] By contrast, attempts to adduce expert opinion evidence about WHY an offence was committed in a particular manner and, more particularly, about WHO is more likely to have committed the offence, that is, the kinds of evidence that I have labelled more particularly as criminal profiling, have generally not met with success, either in this jurisdiction or elsewhere. I will refer to some American and English jurisprudence later in this judgment. However, in so far as Canadian jurisprudence is concerned, the best example is Mohan itself.

[73] In Mohan, the accused was a pediatrician charged with four counts of sexual assault on four female patients between the ages of 13 and 16. Counsel for the accused sought to call a psychiatrist to testify that, in his opinion, the perpetrator of the alleged assaults was a member of a limited and unusual group of persons, and that the accused's characteristics excluded him from that group. On a voir dire to determine the admissibility of the evidence, the psychiatrist described certain general psychosexual profiles, including those of pedophiles and sexual psychopaths, and explained that persons matching these profiles were members of unusual and limited classes. He then gave his opinion on the psychosexual profile of the perpetrator of each of the alleged assaults. It was also envisaged that his testimony would include his opinion that the accused did not have "the [page26 ]characteristics attributable to any of the three groups in which most sex offenders fall".

[74] The trial judge excluded this evidence, and the Supreme Court of Canada held that he had been correct to do so. Sopinka J. set out the four criteria mentioned above for determining the admissibility of expert evidence. In particular, he observed, at para. 28, that expert evidence that is based on novel science will require "special scrutiny to determine whether it meets a basic threshold of reliability" and necessity. He added the following caution: "The closer the evidence approaches an opinion on an ultimate issue, the stricter the application of this principle."

[75] Turning specifically to expert evidence relating to an accused's disposition, Sopinka J. held that for such evidence to be admissible, there must first be something distinctive about the behavioural characteristics of either the accused or the perpetrator that makes a comparison of the two sets of characteristics helpful in determining innocence or guilt. He then explained (at para. 45) that in making this determination, the trial judge must evaluate the scientific reliability of the expert's opinion as to the behavioural characteristics of the perpetrator:

The trial judge should consider the opinion of the expert and whether the expert is merely expressing a personal opinion or whether the behavioural profile which the expert is putting forward is in common use as a reliable indicator of membership in a distinctive group. Put another way: Has the scientific community developed a standard profile for the offender who commits this type of crime? An affirmative finding on this basis will satisfy the criteria of relevance and necessity.

[76] Sopinka J. ultimately concluded at para. 46 that the psychiatrist's evidence did not meet the required threshold of reliability:

[T]here was no material in the record to support a finding that the profile of a pedophile or psychopath has been standardized to the extent that it could be said that it matched the supposed profile of the offender depicted in the charges. The expert's group profiles were not seen as sufficiently reliable to be considered helpful. In the absence of these indicia of reliability, it cannot be said that the evidence would be necessary in the sense of usefully clarifying a matter otherwise unaccessible, or that any value it may have had would not be outweighed by its potential for misleading or diverting the jury.

[77] The Supreme Court of Canada considered criminal profiling evidence again in R. v. J. (J.-L.), 2000 SCC 51, [2000] 2 S.C.R. 600, 148 C.C.C. (3d) 487. As in Mohan, the accused in J. (J.- L.) sought to adduce the evidence of an expert psychiatrist, who was of the opinion that the perpetrator of the offences in question had a highly distinct personality disorder, and that the accused did not exhibit the traits of someone with that disorder. The evidence [page27 ]was held to be insufficiently reliable to warrant admission. The court emphasized that a profile must be to some degree or another "standardized" if it is to be at all useful for the purpose of demonstrating the distinctiveness of the perpetrator. As Binnie J. states at para. 44:

The requirement of a "standard profile" is to ensure that the profile of distinctive features is not put together on an ad hoc basis for the purpose of the particular case.

[78] The Crown in its factum characterizes Detective Inspector Lines' testimony as "opinion about the motivation of staging behaviour". However, as noted in the excerpts from her evidence described earlier, her opinion on WHY a perpetrator would employ staging ("to redirect the investigation away from the most logical suspect") included and extended to WHO that person would be ("almost always someone who had some kind of association or relationship with the victim"). The Crown states further in its factum that this type of expert evidence has been accepted in Canada and the United States and, in support of this argument, cites the following cases: R. v. Clark, [1998] O.J. No. 5590 (QL), 86 O.T.C. 57 (Gen. Div.); R. v. Klymchuk (2000), 2001 28406 (ON SC), 155 C.C.C. (3d) 423 (Ont. S.C.J.); People v. McDonald, 231 A.D.2d 647 (1996); People v. Singh, 37 Cal. App. 4th 1343 (1995); and United States v. Yost, 24 F.3d 99 (10th Cir. 1994).

[79] The rulings in Clark and Klymchuk were made in the course of trials that have now been completed. An appeal from the resulting conviction in each case is pending before this court. I do not propose to comment on either case. I do wish to note, however, that the American cases relied upon by the Crown did not go so far as to admit criminal profiling evidence. The expert opinion evidence introduced in those three cases was limited, rather, to the opinion that the crime scene had been staged. In any event, it is important to note that, while the American authorities can provide assistance, the comparable rule regarding the admission of expert evidence, although similar, is not the same as that articulated in Mohan.

[80] The English Court of Appeal recently had the opportunity to consider the admissibility of a related kind of evidence in R. v. Gilfoyle, [2001] 2 Cr. App. Rep. 57, [2000] E.W.J. No. 7209 (QL) (C.A.). In Gilfoyle, the accused, who was charged with the murder of his wife, sought to admit fresh evidence before the Court of Appeal from a psychologist who had conducted a "psychological autopsy" of the deceased. Based on his examination of some of the evidence, including the deceased's diary, other documents written by her, and various post-mortem reports by [page28 ]a psychiatrist and a pathologist, the psychologist formed the opinion that the evidence strongly supported a conclusion that the deceased had taken her own life.

[81] The Court of Appeal ruled that the psychologist's opinion was inadmissible as a matter of law for a number of reasons, including that there was no identifiable way to test the reliability of his testimony: "there is no data base comparing real and questionable suicides and there is no substantial body of academic writing approving his methodology." The court made the following comment that is apposite to the evidence in question on this appeal (at p. 68 Cr. App. Rep.):

[Defence counsel] accepted that, if evidence of this kind were admissible in relation to the deceased, there could be no difference in principle in relation to evidence psychologically profiling a defendant. In our judgment, the roads of enquiry thus opened up would be unending and of little or no help to a jury. The use of psychological profiling as an aid to police investigation is one thing, but its use as a means of proof in court is another.

[82] In this case, Detective Inspector Lines' opinions about the perpetrator's likely motivation for staging the crime scene and his characteristics as a person associated with the victims and having a particular interest in Marsha constituted evidence of criminal profiling. Criminal profiling is a novel field of scientific evidence, the reliability of which was not demonstrated at trial. To the contrary, it would appear from her limited testimony about the available verification of opinions in her field of work that her opinions amounted to no more than educated guesses. As such, her criminal profiling evidence was inadmissible. The criminal profiling evidence also approached the ultimate issue in this case and, hence, was highly prejudicial. The prejudice was further heightened by the limits placed on defence counsel's cross-examination and by the prominence that the trial judge gave to Detective Inspector Lines' evidence in his charge. This brings me to the additional grounds of appeal with respect to this evidence. In light of my conclusion on the issue of admissibility, my comments on these additional grounds will be brief.

3. The limits on cross-examination

[83] As noted earlier, the trial judge refused to permit defence counsel to cross-examine Detective Inspector Lines about the possibility that her conclusions were influenced by her involvement with the police investigators and by their belief that the appellant was involved in the crime. The trial judge was of the view that the investigators' belief in the guilt of the appellant was irrelevant and that this was a matter of argument and not [page29 ]cross-examination. The appellant submits that the trial judge erred in his ruling. In support of his contention, he refers to the recommendation from the Kaufman inquiry, referred to earlier, that "profiling once a suspect has been identified can be misleading and dangerous, as the investigators' summary of relevant facts may be coloured by their suspicions".

[84] I agree with the appellant's position on this point. The line of cross-examination was highly relevant and should have been permitted.

4. The trial judge's charge to the jury

[85] The appellant raises several concerns about the trial judge's instructions to the jury on what use they could make of Detective Inspector Lines' testimony. In light of my conclusion that her evidence, at least in part, was inadmissible, I do not find it necessary to deal with the concerns that were raised. It is important to note, however, in relation to this ground of appeal that Detective Inspector Lines' evidence figured prominently in the trial judge's charge to the jury. After reviewing her evidence, the trial judge instructed the jury that this evidence "may be important should you find that Rohan Ranger had a motive to kill Marsha Ottey and would have been considered as an obvious suspect. It may also be important should you find as a fact that Adrian Kinkead had no motive to kill either Ottey sister and therefore was at 88 Valley Road only at the behest of his cousin, Rohan Ranger. Kinkead would have had no need to divert suspicion from himself."

[86] The trial judge also referred to the staging evidence on four occasions while reviewing the Crown's theory for the jury, pointing out that it was the Crown's position that the appellant staged the crime scene in order to divert suspicion from himself as the most obvious or likely suspect and that Adrian Kinkead, who was not an obvious suspect, would not have needed to stage the scene if he was the sole perpetrator.

[87] The trial judge last referred the jury to the staging evidence almost at the very end of his charge, in the context of his instructions about how the jury should approach the evidence. This part of the charge will be discussed in further detail later in this judgment. Of significance in relation to this ground of appeal is the fact that the staging evidence was mentioned specifically in relation to the jury's ultimate determination of the verdict.

[88] The trial judge instructed the jury that finding that the appellant was in or about the Ottey home around the time of the killings "will be a giant step towards your being satisfied beyond a reasonable doubt that the accused unlawfully participated in [page30 ]the killings of the Ottey sisters". He further instructed them that "in making that determination, you must assess the evidence cumulatively and not in piecemeal fashion. Thus the evidence of Victor Lo must not be assessed in isolation but must be weighed together with all the evidence; including the evidence of motive, association death threats, staging and any other evidence you find relevant to this determination" (emphasis added).

[89] The trial judge further instructed the jury that even if they were not satisfied that the appellant was in or about the Ottey home at the relevant time, they could still find the appellant guilty as an aider and abettor, but that it was "critical" in this situation that they find as a fact that the appellant had the sole motive to kill Marsha Ottey and "that Adrian Kinkead had no motive to kill either Ottey sister and that a false break and enter was staged to divert suspicion from Marsha Ottey's ex-boyfriend".

[90] In these circumstances, it cannot be said that the failure to properly circumscribe the expert opinion evidence on this issue occasioned no harm. For these reasons, I would give effect to this ground of appeal.

IV. AFTER-THE-FACT CONDUCT: THE JAMAICA EVIDENCE

[91] In January 1996, the appellant and his father flew to Jamaica with tickets for a one-week round trip. The father returned to Canada a week later but the appellant did not. In February 1996, the police arrested Mr. Kinkead and issued a warrant for the appellant's arrest on charges of murdering Marsha and Tamara Ottey. The appellant agreed to return voluntarily to Canada and to surrender to the police in connection with these charges.

[92] Over the objections of defence counsel, the trial judge permitted the Crown to introduce evidence about the appellant's trip to Jamaica and his overstay as evidence of flight from which the jury could infer consciousness of guilt. The Crown argued that, at the time the appellant left Canada in January 1996, the police had begun to investigate Adrian Kinkead in connection with the deaths of Marsha and Tamara Ottey and, although it could not be proven, it was possible that the appellant had come to know that and that this knowledge was what had precipitated his departure. The trial judge also permitted the Crown to introduce evidence of the hostile climate of the populace in Jamaica to rebut the possible defence argument that the appellant's surrender to the police and return to Canada one month later was voluntary. The trial judge later [page31 ]reversed his ruling and ultimately told the jury to disregard this evidence on the issue of consciousness of guilt.

[93] The appellant argues that the Jamaica evidence was of no probative value, highly prejudicial and, consequently, inadmissible. He submits that the prejudicial effect of the evidence was aggravated by the Crown's use of this evidence in closing submissions to the jury. Finally, he argues that the instructions to the jury were insufficient to remedy the error.

[94] In response to this ground of appeal, the Crown reiterates its position at trial that the Jamaica evidence is evidence of flight, showing that the appellant left Canada once the police began to investigate Adrian Kinkead more seriously in connection with the deaths of Marsha and Tamara Ottey, and also showing that the appellant did not decide to return to Canada until he became concerned about his personal safety in Jamaica.

A. The Jamaica Evidence

[95] Little evidence was called in relation to the plans for the trip to Jamaica other than the testimony of the travel agent who had booked the trip for the appellant and his father. Most of the evidence about the trip to Jamaica related to the circumstances surrounding the appellant's return to Canada.

[96] In this respect, the Crown introduced evidence about discussions relating to the appellant's return to Canada between the appellant's lawyer at the time (who was not defence counsel at trial) and Detective Mendelson, one of the police officers involved in the Ottey investigation. Detective Mendelson testified that two days after the police arrested Adrian Kinkead, and a couple of hours before the police were to hold a press conference announcing the issuance of a warrant for the appellant's arrest for the Ottey murders, he received a voice-mail message from the appellant's lawyer stating that the lawyer would be meeting the appellant's father later that day. The police officer returned the call, and told the lawyer about the press conference. The lawyer said he did not have instructions yet to disclose the appellant's whereabouts, but would call again in two days.

[97] Two days later, the lawyer called Detective Mendelson. Detective Mendelson testified that the lawyer told him in this second telephone conversation that the appellant was in Jamaica but wanted to return to Toronto voluntarily and surrender. Detective Mendelson also testified that the lawyer told him that the appellant was concerned for his personal safety in Jamaica.

[98] Arrangements were made for the police and a defence counsel to fly to Jamaica. The plan was for the appellant to return voluntarily to Toronto with the police and defence counsel, [page32 ]and for the appellant to be arrested once he was on Canadian soil. By the time the police and defence counsel arrived in Jamaica, news of the warrant for the appellant's arrest was already circulating. It appears that the deaths of Marsha and Tamara Ottey received attention in Jamaica because the Otteys' extended family is well-known there. As it turned out, the appellant was already in the custody of the Jamaican police who, for the appellant's own protection, detained him overnight in an office located in a local police station until he was turned over to the Toronto police. Detective Mendelson, defence counsel, and the appellant then flew back to Toronto, where the appellant was immediately arrested.

[99] Detective Mendelson also testified about the public anger towards the appellant in Jamaica. He described walking by a courtyard at the Jamaican police station that housed a makeshift prison cell, and hearing shouts by some of the prisoners, directed at him but in relation to the appellant. Detective Mendelson quoted the following: "Hey, Mr. Canada, bring us the Ranger boy. We kill him. Bring us the fuck, and he drink jail water [explained as meaning urine]. . . . We kill the fuck, Mr. Canada." One voice shouted: "I avenge the Otteys" and then there was a chorus of "Bring us the Ranger fuck."

[100] Detective Mendelson also described the airport departure area in Jamaica when the appellant was scheduled to leave. A group of 300 to 400 people, who were visibly antagonistic toward the appellant, attended the airport when the appellant was scheduled to leave. Detective Mendelson testified that some were shouting but that he could not make out what they were saying other than hearing "shame" a lot and "shame on you" and "you shamed Jamaica." Detective Mendelson had the departure area blocked off because of concerns for their safety.

[101] After Detective Mendelson finished describing the events at the police station and at the airport in Jamaica, the trial judge immediately gave the following instruction to the jury:

All right. Let me give you this instruction. Whatever various members of the Jamaican populace expressed in emotional terms toward Mr. Ranger has nothing to do with the issue of whether Mr. Ranger either killed or participated in the killing of the Ottey sisters. It is relevant only to, and I repeat, it is relevant only to the issue of whether Mr. Ranger surrendered voluntarily to the Toronto Police or whether Mr. Ranger surrendered because of the general hostility of various members of the Jamaican populace toward him.

B. Crown's Closing Submissions Regarding the Jamaica Evidence

[102] As noted by the appellant, the Crown placed much emphasis on this evidence during the course of his final address [page33 ]to the jury. The Crown asked the jury to draw three main inferences from the Jamaica evidence, the gist of which can be described as follows: that the appellant left for Jamaica in a hurry at a time when it could easily have come to his attention that the police investigation into the deaths of the Ottey sisters was continuing; that the appellant's father was aware of a connection between his son and Adrian Kinkead in regard to the deaths of the Ottey sisters and that this led the father to call the lawyer as soon as Adrian Kinkead was arrested; and that the appellant agreed to surrender to the Toronto police only because "the reality in Jamaica was even more daunting and frightening than the reality of being arrested here in Toronto for murder."

C. Trial Judge's Instructions to the Jury Regarding the Jamaica Evidence

[103] After both counsel had completed their closing addresses to the jury, the trial judge, on his own motion and contrary to his earlier ruling, advised counsel of his intention to tell the jury "to disregard the Jamaica evidence as far as consciousness of guilt". The trial judge then raised the Jamaica evidence with the jury on three separate occasions during the course of his charge.

[104] The first time was during the course of his general instructions on after-the-fact conduct. The trial judge first cautioned the jury that "the doctrine of consciousness of guilt is inappropriately titled and should properly be titled consciousness or awareness of fault." This caution was presumably given in an attempt to comply with R. v. Peavoy (1997), 1997 3028 (ON CA), 34 O.R. (3d) 620, 117 C.C.C. (3d) 226 (C.A.) and R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, 125 C.C.C. (3d) 385, where the use of a more neutral label such as "post-offence conduct" was held to be preferable. The trial judge listed five items of circumstantial evidence relied on by the Crown "to establish consciousness of fault". The fifth item listed was the "flight to Jamaica and a voluntary surrender there to Toronto Police". (The fourth item to which I will refer to later was "an attempt to create a false alibi".) The trial judge did not instruct the jury at this point to disregard any part of this evidence. Rather, he continued at some length to give general instructions on the use of this kind of circumstantial evidence.

[105] The second time was after these general instructions on "consciousness of fault", when the trial judge commented specifically on two of the five items of circumstantial evidence relied on by the Crown as evidence of consciousness of guilt. The trial judge stated the following: [page34 ]

Let me address the issue of an attempted false alibi. The accused is not relying on the defence of alibi. Thus you must disregard the Crown's reference to a possible false alibi. Simply disregard it.

Let me then address the matter of Jamaica. When the accused left for Jamaica, there was no warrant for arrest or no warrant imminent for his arrest. He had a legal right to go to Jamaica. As for possible and voluntary surrender, he was under no obligation in a foreign country to surrender to Canadian police. Had he insisted on extradition proceedings, that would have been his legal right. You must also disregard this evidence as to the issue of consciousness of guilt.

[106] Again, I will deal with the question of the attempted false alibi later.

[107] Notwithstanding this instruction to disregard the Jamaica evidence on the issue of consciousness of guilt, the trial judge, during his final review of the Crown's theory towards the end of his charge, referred to this evidence a third time, without telling the jury to disregard it. He stated the following:

The Crown submits that Ranger's after-the-fact conduct is relevant to show that he had a guilty conscience. His conduct indicates that he was aware that he had unlawfully participated in the killing of the Ottey sisters. His sudden rupture of his association with his inseparable cousin, his use of pay phones, his surveillance consciousness, his walks in the parks and open space and his trip to Jamaica all reflect consciousness of guilt.

(Emphasis added)

D. Analysis

[108] In my view, the Jamaica evidence was of no probative value and highly prejudicial to the appellant. In light of the trial judge's later ruling, I do not need to explain why, on this record, the evidence was not probative of flight and should not have been admitted at trial on that basis.

[109] I agree with the appellant's submission that the jury might have inferred guilt from the highly speculative evidence of the appellant's lawyer's discussions with Detective Mendelson, particularly the suggestion that the father had contacted the lawyer immediately after Adrian Kinkead's arrest because, as the Crown put it"everybody seems to know of a connection between [the appellant] and Adrian Kinkead in terms of the murders of these two young women."

[110] I am also of the view that the evidence of the public animosity towards the appellant in Jamaica was highly inflammatory and suggested that anyone who knew anything about the appellant knew that he was responsible for the deaths of the Ottey sisters. This aspect of the evidence was also of no probative value. The appellant aptly puts it in his factum as follows: [page35 ]

It is hard to understand how evidence that local citizens and inmates were shouting at the appellant, after he was taken into custody by the Jamaican authorities, supported the appellant's purported earlier concern about his safety when no one apparently knew that he was in Jamaica until the appellant contacted the police and advised them of his whereabouts.

[111] The trial judge erred in permitting the Crown to call the Jamaica evidence in the first place. Having allowed the evidence in, the trial judge then erred in his instructions to the jury regarding this evidence. Although the trial judge instructed the jury to disregard the Jamaica evidence "in regard to consciousness of fault", he failed to instruct them that they should not consider this evidence at all. Further, having taken the evidence away from their consideration, on the issue of consciousness of guilt at least, the trial judge nonetheless brought the evidence back for the jury's consideration when he later reviewed the Crown's overall position one last time.

[112] For these reasons, I would give effect to this ground of appeal.

V. AFTER-THE-FACT CONDUCT: THE ALLEGED FALSE ALIBI

[113] The appellant relies on the fact that he and a friend, Ricardo Bernardo, were captured on a security video at the Scarborough Town Centre at 8:08 on the morning of the homicides as compelling evidence of innocence. The appellant's position at trial was that the Scarborough Town Centre evidence established that there was an exceptionally small, if not non- existent, window of opportunity for him to have killed or helped to kill Marsha and Tamara Ottey. Taking the evidence at its highest, the appellant would have had between 16 and 26 minutes to enter the Ottey house, kill each sister by stabbing them numerous times, find the personal items of Marsha that were taken, ransack the house, clean himself up from the stabbings, drive to the Scarborough Town Centre, park his car, and make his way to the food court, where he was captured on a security videotape.

[114] The appellant contends that Crown counsel greatly undermined the significance of the Scarborough Town Centre evidence by referring to it in his jury submissions as evidence of a false alibi, and that the trial judge erred in his charge to the jury by failing to correct the damage resulting from the Crown's speculative theory of false alibi. In response, the Crown argues that the trial judge properly instructed the jury to disregard the Crown's reference to a possible false alibi. [page36 ]

A. Crown's Closing Submissions Regarding the Scarborough Town Evidence

[115] The Crown's closing submissions to the jury regarding the Scarborough Town Centre evidence were extensive, covering 20 pages of transcript. During these submissions, the Crown argued that the appellant had deliberately created a false alibi by going to the Scarborough Town Centre minutes after the murders precisely for the sole purpose of being captured on a security video, stating as follows:

. . . [O]ne of the things that people do when they commit murder is they make efforts to ensure that they don't get caught. Well, what's one of the ways that you don't get caught? One of the ways you don't get caught or think you're not going to get caught is if you don't leave any physical traces behind. . . . [B]ut as well as that, it's a very nice thing if you can create an alibi for yourself, so think about it. If you've just come from committing two grievous, awful, gruesome murders and you want to ensure that nobody is going to hold you accountable for them, what better way to give yourself some assurance than to be some place with another person who can vouch for you being there and if you think about it, what better place than a place where there's a camera? . . .

. . . So think about the Scarborough Town Centre. What are these guys doing there at that hour of the morning? . . . He's getting on camera, ladies and gentlemen. He's getting on camera. He's creating an alibi for himself or trying. Well, but what is Mr. Bernardo doing going towards the bank of phones you ask? Well, consider this for a moment. You heard from Mr. Rolland that there's really nothing open in that food court, as I recollect his evidence, at that time of the day, and the only people in there are these mall walkers or whatever they were called and so on, but there's nothing really to do in there except to use the phone. Well, if you wanted to use a phone, but you had no other reason to be there, why would you go to Scarborough Town Centre where the evidence is that you have to go past a security guard . . . and get permission to go in there . . . ? Why would you bother? . . . [T]hey're getting on camera and creating this alibi or what they hope will suffice as an alibi . . .

[116] The Crown also argued that the jury could look to the Scarborough Town Centre evidence as providing an incriminating reason about why the appellant and his friend wanted to use a telephone that early in the morning:

. . . Why do they want to make a phone call? Because they want to phone 88 Valley Stream and they want to see -- remember all that evidence about what happens when the phone's off the hook and when it goes to voice mail and how many rings you get and so on? Well, ladies and gentlemen, what better way, if you've been in this premise at 88 Valley Stream and if you've committed two gruesome murders and if Mr. Rohan Ranger thinks, well, I've been seen by this same pesky guy who goes walking by two days in a row, he keeps staring at me and, you know, you've been seen by at least that person and possibly others and Mr. Kinkead knows that he's been seen by Dwight Powrie . . . what better way to see whether your efforts in the basement of [page37 ]88 Valley Stream have been discovered than to leave the phone off the hook and phone back there at a later time because if you phone back there and all you get is an immediate ring cum voice mail, then you know that the phone is off the hook where you left it. . . .

[117] The Crown reinforced these submissions by alerting the jury to the fact that the Crown had admitted the fact that the appellant was at the Scarborough Town Centre:

The other thing you should understand about admissions is that the defence can only make an admission if the Crown lets it make an admission, so in order for an admission to be put before you and be established as a fact, it requires the consent of the Crown. Well, the Crown consented here, so now it's a fact before you that you must take account of that Mr. Bernard together with Mr. Ranger were at the Scarborough Town Centre at about 8:08 in the morning of the 16th of August of '95.

B. Trial Judge's Instructions to the Jury Regarding the Scarborough Town Centre Evidence

[118] The trial judge referred to the Scarborough Town Centre evidence, in identical terms, in the course of reviewing the defence's position for the jury at the beginning and again towards the end of his charge, stating each time as follows:

The defence then asks you to look at the time available for the killings. It is undisputed that the accused, Ranger, was at the Scarborough Town Centre at around 8:08 a.m. on the morning of Wednesday, August 16, 1995. Thus the window of opportunity for the accused, Rohan Ranger, to have participated in the Ottey killings would have been only perhaps fifteen to twenty minutes. Ranger would have had to have left the Ottey home by 7:50 a.m. at the latest in order to have arrived at the Scarborough Town Centre by 8:08 a.m. By definition, a person cannot be in two places at the same time. Thus the window for the Crown to put the accused at the scene is very limited in time.

[119] The trial judge referred to the Crown's false alibi theory on two occasions during his charge to the jury. As mentioned earlier, when the trial judge listed the five items of circumstantial evidence relied on by the Crown "to establish consciousness of fault", the fourth item listed was "an attempt to create a false alibi". The trial judge then specifically said the following about the issue of attempted false alibi:

Let me address the issue of an attempted false alibi. The accused is not relying on the defence of alibi. Thus you must disregard the Crown's reference to a possible false alibi. Simply disregard it.

[120] Finally, when reviewing the Crown's position almost at the conclusion of his charge to the jury, the trial judge reminded the jury that the Scarborough Town Centre evidence constituted "evidence of opportunity, not evidence of alibi". The trial judge also referred again to the Crown's theory of false alibi, [page38 ]notwithstanding his earlier instruction to the jury to disregard this theory. The trial judge stated as follows:

Had Ranger left the Ottey home by 7:45, he would unquestionably have been at the Scarborough Town Centre by 8:08 a.m., some twenty-three minutes later. Ranger knew that there was a video camera that photographed Bernard and himself. This was the construction of a false alibi. Bernard phoned the house to see if the murders had been discovered.

(Emphasis added)

C. Analysis

[121] An attempt by an accused to create a false alibi can constitute an affirmative piece of circumstantial evidence against him or her. However, a jury cannot be so instructed unless there is evidence capable of supporting a finding of fabrication. In this case, there is no dispute that there was no evidence to support the Crown's theory that the appellant had deliberately sought to get himself filmed on the security video in order to create a false alibi. Hence, there was no basis for Crown counsel to suggest in his closing submissions that this alleged attempt to create a false alibi could be considered by the jury as evidence against the accused. This suggestion was highly prejudicial because of the importance of the Scarborough Town Centre evidence to the defence. This evidence provided a basis on which the jury could conclude that the appellant did not have a reasonable opportunity to kill the Ottey sisters as contended. Hence, in this context, I agree with the appellant's submission that the exculpatory value of the Scarborough Town Centre evidence was significantly undermined by the Crown's speculation of false alibi.

[122] In my view, the trial judge's instructions to the jury did not remove the prejudice created by the Crown's submissions. Rather, they served to exacerbate the problem. First, it was an error for the trial judge to repeatedly refer to the "false alibi" as one item of evidence relied upon by the Crown to establish its case. Second, the instruction that the jury was to "disregard the Crown's reference to a possible false alibi" because "the accused is not relying on the defence of alibi" further undermined any exculpatory value of the Scarborough Town Centre evidence. Rather, the jury should have been told that the reason that they must disregard this reference was because there was no evidence to support the Crown's theory of an attempt to create a false alibi.

[123] Although the matter is of less significance, I also agree with the appellant that the trial judge should have specifically instructed the jury that there was no evidence to support the [page39 ]Crown's speculation that the appellant wanted to phone the Ottey home to see if the phone was still off the hook.

[124] For these reasons, I would give effect to this ground of appeal.

V. THEORIES OF LIABILITY

[125] The Crown at trial relied on two alternative theories of how the appellant participated in the murders: either the appellant killed both Ottey sisters himself, with the help of Adrian Kinkead; or Adrian Kinkead killed one or both sisters, with the appellant's assistance. It is clear from the Crown's conduct of its case throughout the trial that either Crown theory depended on the jury being satisfied that the appellant was present in the Ottey home when Marsha and Tamara Ottey were killed. For example, the Crown called evidence to establish that two black men were seen outside the Ottey home on August 16, 1995 around 7:30 a.m., shortly before the time of the deaths. The Crown also led evidence that the Ottey home had been ransacked to look like a burglary and submitted to the jury that two people could easily have accomplished this ransacking within a short period. Similarly, the Crown's position was that the nature of the killings suggested two perpetrators. Marsha and Tamara Ottey were young, strong, and athletic. The Crown's theory was that the Ottey sisters could not have been stabbed at the same time so viciously by only one person; rather, there must have been two perpetrators, with one perpetrator restraining one of the sisters while the other stabbed the other sister. As well, the Crown never suggested to Adrian Kinkead during his testimony that Mr. Kinkead was by himself in the Ottey home when Marsha and Tamara were killed.

[126] The appellant's position at trial was that Adrian Kinkead was the sole killer and that he was not present in the Ottey home when Marsha and Tamara Ottey were killed. As discussed in the previous section, the defence relied heavily on the Scarborough Town Centre evidence, which placed him away from the scene of the crime minutes after Marsha and Tamara Ottey were killed. The appellant refers to the Scarborough Town Centre evidence as the centrepiece of his defence, relying on it as highly persuasive evidence that he was not present at the Ottey home when Marsha and Tamara were killed.

[127] In addition to the two theories of liability advanced by the Crown, the trial judge left it open to the jury to find the appellant guilty even if he was not present "in or about" the Ottey home, if the jury was satisfied that the appellant aided or [page40 ]abetted Adrian Kinkead in killing the Ottey sisters. The trial judge told the jury that it would be critical to their determination that the appellant was an aider or abettor for them to find as a fact that the appellant had the sole motive to kill Marsha Ottey, that Adrian Kinkead had no motive to kill either sister, and that a false break and enter was staged to divert suspicion from the appellant. The appellant contends that the trial judge erred in leaving this third theory of liability with the jury.

[128] First, the appellant argues that there was no evidentiary basis to support the third theory of liability. The appellant submits that a conviction cannot reasonably be based solely on evidence of motive and association with Adrian Kinkead in the absence of any evidence to suggest that he had asked, or in any way, aided or abetted, Adrian Kinkead to kill Marsha or Tamara Ottey. Second, the appellant submits that it was fundamentally unfair to leave this additional theory with the jury when the Crown had expressly disavowed it and defence counsel had addressed the jury based on the understanding that the trial judge would not charge the jury on this basis. The appellant submits that this third theory, which left it open to the jury to convict him even if they found that he was not in or about the Ottey home at the relevant time, was critical since it could potentially rebut his strongest piece of exculpatory evidence, the Scarborough Town Centre evidence. The appellant notes that the instructions on aiding and abetting were obviously of interest to the jury since they asked a question on the subject-matter during the course of their deliberations. Indeed, the appellant submits that the verdict of manslaughter in respect of the death of Tamara Ottey suggests that the jury may have convicted the appellant on this third theory of liability.

[129] In response to this ground of appeal, the Crown argues that trial judges are duty bound to instruct juries on every basis of liability and on every defence with a sufficient evidentiary foundation, regardless of the position of either counsel for the Crown or the defence. The Crown submits that the evidence in this case could support a conclusion that the appellant had aided or abetted Adrian Kinkead in committing the offences without the appellant being present when the Ottey sisters were killed. The Crown also argues that the trial judge's instructions regarding aiding or abetting did not catch the appellant by surprise. The Crown states that at trial, as well as on this appeal, there was no suggestion that the appellant might have done anything differently had he known that the trial judge would charge the jury as he did. Rather, the appellant would have maintained the same position that he took [page41 ]throughout the trial: that he had nothing to do with any aspect of killing Marsha and Tamara Ottey.

A. The Issues

[130] This ground of appeal raises the following issues:

(a) Was there a sufficient evidentiary basis to leave it open to the jury to convict the appellant even if they were not satisfied that he was in or about the Ottey home on the morning of the homicides?

(b) Assuming that there was a sufficient evidentiary basis, was the instruction on the additional theory of liability unfair in the circumstances of this case?

[131] On the first question, the Crown submits that there was evidence upon which a reasonable and properly instructed jury could conclude that the appellant was a party to the offences while still having a reasonable doubt about whether he was actually present at the Ottey home during the homicides. The appellant submits that there was no air of reality to this third theory of liability.

[132] It is clear that the instruction would constitute reversible error if there were no evidentiary basis to leave the third theory of liability to the jury. However, I do not find it necessary (or advisable since there will be a new trial) to make a final determination on this question since, in my view, this ground of appeal turns on the question of trial fairness. I will therefore address only issue (b) and assume that the instruction on the third theory of liability was supported by the evidence.

[133] As I will explain, it is the trial judge's role to instruct the jury on all relevant questions of law that arise on the evidence. In some cases, these instructions will not accord with the position advanced by counsel for the Crown or the defence. In all cases, however, the trial judge's role will be circumscribed by the need to ensure trial fairness. In the particular circumstances of this case, it is my view that the trial judge's failure to notify counsel of his intention to charge the jury on this additional basis of liability undermined the appellant's ability to make full answer and defence.

B. Analysis

1. The trial judge's role

[134] The underlying question that arises is whether the Crown is bound by the theory that it advances. To put the question in [page42 ]another way, can an accused be convicted on a basis other than that advanced by the Crown? In this respect, it is important to note that there is a distinction between particulars given by the Crown under s. 587 of the Criminal Code, R.S.C. 1985, c. C-46 and the Crown's theory of the case. While the Crown is generally bound to prove formal particulars, it is not bound to prove the theory that it advances in order to secure a conviction. A conviction is based, rather, on proof of the necessary elements of the offence. Hence this court, in R. v. Groot (1998), 1998 2151 (ON CA), 41 O.R. (3d) 280, 129 C.C.C. (3d) 293 (C.A.), affd 1999 672 (SCC), [1999] 3 S.C.R. 664, 144 C.C.C. (3d) 287, rejected the general proposition that once the Crown presented a particular theory it would be unfairly prejudicial to the accused in any case to allow the trier to convict on a different theory. The question turned, rather, on whether the accused, in the particular case under review, was able to present a full and fair defence.

[135] We must therefore start from the premise that the jury is not bound by the theory of the Crown in its consideration of the evidence. Nor is it bound by the theory of the defence. Hence, in order to provide the jury with the assistance that it requires in dealing with the evidence, the trial judge may well find it necessary to instruct the jury in a manner that does not accord with the theory advanced by either Crown or defence counsel at trial.

[136] I did not interpret the appellant's submissions in this case as disputing this general principle. The concern that was raised relates, rather, to its particular application in this case. Indeed, in any case where the trial judge instructs the jury on a material point in a manner that does not accord with the position advanced by either party, a question may arise whether this course impacted on the fairness of the trial. For example, depending on the circumstances, an accused may argue that his or her principal defence was undermined by the manner in which the trial judge left an alternative defence open to the jury. The concern about trial fairness, however, will be greater when the instruction relates to a theory of liability that has not been advanced by the Crown.

[137] In R. v. Gregory (1981), 77 Cr. App. Rep. 41 (C.A.), the precise question was raised whether the trial judge erred in instructing the jury on a new alternative basis of liability without counsel being given the opportunity to comment upon it during their addresses. In the particular circumstances of the case, the English Court of Appeal concluded that the trial judge's failure to notify counsel in a timely manner did not constitute a material irregularity and, even if it did, the court was prepared to apply the curative proviso on the basis that no [page43 ]miscarriage of justice had actually occurred. However, the court commented as follows (at p. 47):

Nevertheless, we think it right to say that it is desirable that counsel should be told by the judge, before speeches begin, of any direction which he proposes to give to the jury which would allow of a conviction upon a basis of which no previous indication had been given during the trial up to that point.

[138] For examples of other cases where the trial judge instructed the jury in respect of a theory of liability that was not advanced by the Crown, see R. v. Kent (1986), 27 C.C.C. (3d) 405, 21 C.R.R. 372 (Man. C.A.); R. v. Cousins (1997), 1997 14647 (NL CA), 119 C.C.C. (3d) 432, 481 A.P.R. 169 (Nfld. C.A.); and R. v. Oakwell, [1978] 1 All E.R. 1223, 1 W.L.R. 32 (C.A.). However, I do not find it necessary for the disposition of this ground of appeal to consider these decisions further. The question whether a trial judge's instruction on an alternate theory of liability had an adverse impact on the fairness of the trial is one that can only be determined on a case-by-case basis.

[139] This ground of appeal therefore turns on the particular circumstances of the case as they relate to this issue.

2. The discussions at trial and the instructions to the jury

[140] I note at the outset that there is no suggestion that the appellant was prejudiced by the introduction of the third theory of liability in the marshalling of the evidence. In other words, the appellant does not argue, and in my view could not argue, that he would have conducted the cross-examination of Crown witnesses differently or that he would have called evidence on his behalf if he had known that this third theory of liability would be left with the jury. Although the theories of the Crown, throughout the trial, were that the appellant himself had killed the Ottey sisters, or that he had assisted Kinkead in killing them, the jury is not bound by those theories and the question of whether the appellant could be found guilty based on some other form of participation remained open to the jury depending on the evidence. The allegation of prejudice in this case is based, rather, on the discussions that transpired after the Crown's case was closed. The appellant submits that he was led to believe that the jury would be instructed solely in accordance with the theories advanced by the Crown and that, consequently, counsel was deprived of the opportunity to address the third theory of liability in his closing address to the jury. It therefore becomes necessary to review some of those discussions in more detail to determine whether the appellant was prejudiced as contended. [page44 ]

[141] The question of whether the appellant could be found guilty if the jury was not satisfied that he was present in the Ottey house at the time of the killings arose several times during discussions among the trial judge, the Crown and defence counsel. The question first arose during a motion for a directed verdict. The matter was also canvassed among the trial judge and counsel at least four times after the appellant elected not to call any evidence and before defence counsel started his closing address to the jury. The question next arose during the pre-charge discussions that followed both counsel's closing addresses. Finally, the issue was raised in defence counsel's objections to the trial judge's charge to the jury.

(a) Motion for a directed verdict

[142] At the conclusion of the Crown's case, the defence moved for a directed verdict of acquittal. It is apparent from the submissions and the exchanges among the trial judge and both counsel on the motion that no one anticipated at that time that the appellant could be found guilty if the jury was not satisfied that he was present in the Ottey house at the time of the killings. The question was simply never raised. In particular, I note the following.

[143] During the course of his submissions, defence counsel stated: "Well, I feel on this evidence here, on this evidence, the Crown has got to prove and put the accused in that house." To which the trial judge responded: "Yes. Oh, no doubt, no doubt." Crown counsel, in responding to the motion, never suggested that the appellant could be found guilty without being at the scene. To the contrary, when asked by the trial judge whether he was going to suggest to the jury that there must have been more than one person involved, the Crown stated: "Yes. Yes, I am, and I'm going to suggest to the jury in due course that indeed there were two people there because of several things." Crown counsel then explained why he thought the evidence supported the theory of two persons being in the house at the time of the killings.

[144] The motion for a directed verdict was dismissed and the defence elected to call no evidence.

(b) Discussions prior to defence counsel's address to the jury

[145] The trial judge, Crown counsel and defence counsel discussed the appellant's liability on the basis that he was not present during the commission of the offences on four occasions after the appellant elected not to call any evidence and before defence counsel started his closing address to the jury. The discussions [page45 ]generally arose in the context of whether the trial judge would charge the jury on the counselling provisions set out in s. 22 of the Criminal Code. The trial judge first raised this possibility when he canvassed counsel prior to their closing addresses proposing a pre-charge conference. The trial judge asked Crown counsel, by way of example, whether the Crown would want the jury instructed on the possibility of convicting the appellant on the basis of counselling, assuming the jury found that Adrian Kinkead went into the house alone and killed the two sisters. Crown counsel stated that he did want this possibility to be left with the jury. Defence counsel objected on the basis that there was no evidence in support of this theory. The matter was left unresolved and the court adjourned.

[146] The discussion resumed two days later when various issues regarding the trial judge's charge were discussed, including whether the jury should be charged in regard to the counselling provisions set out in s. 22 of the Criminal Code. The following exchange took place between the trial judge and the Crown:

The Court: Okay. The counselling would only go on the scenario that Mr. Kinkead alone . . . committed the murders.

Mr. Clark: Yes.

The Court: Do you want that possibility to be put?

Mr. Clark: Yes, if it please the Court . . . you may have one or more jurors who aren't satisfied that Mr. Ranger was there . . .

[147] Very shortly after this exchange, defence counsel stated that he was "very troubled about the fact that there may be a charge on the issue of counselling", given that there was no evidence, according to defence counsel, that Adrian Kinkead committed the murders without the appellant being present. The trial judge, after confirming with the Crown that counselling would be a "tertiary" approach, suggested that the Crown think about his position and stated "if you don't want me to put it to the jury, I won't put it to the jury, but if you end up at that time wanting me to put it to the jury, I'll put it to the jury". At this point, court adjourned until the following Monday, when the Crown was to start his closing address to the jury.

[148] When court next resumed, Crown counsel, just before starting his closing address to the jury, asked the trial judge not to leave counselling with the jury. The relevant exchange was as follows:

Mr. Clark: The first thing is, I've reflected upon this at some length, the question that Your Lordship put last day which is whether [page46 ]the Crown wanted you to leave counselling with the jury. I've decided I'd ask you not to leave it.

The Court: All right. That's fine.

Mr. Charles: What? I didn't hear that.

Mr. Scott: Not leave counselling.

The Court: Not leave counselling, s. 22.

[149] Crown counsel then made his final address to the jury. At no point in his closing address did the Crown even imply that the appellant was not present at the Ottey home when Marsha and Tamara were killed or that the jury could find the appellant guilty if they were not satisfied he was present when the killings took place. To the contrary, when describing who can be a party to an offence, the Crown told the jury:

What does abet mean you ask? Abet is simply a legal word that means encourage or incite if you will. If someone is stabbing another person and I say"Atta boy, give it to him", I'm guilty just as if I were the stabber. Why? Because I've abetted the person, so you have to understand about parties, as I say, because to a certain extent, there will at the end of the day perhaps be in your minds some uncertainty as to exactly how events unfolded in that basement, but so long, ladies and gentlemen, as you're satisfied that Mr. Ranger was in that basement and if he wasn't the stabber, he was certainly doing something to either aid, help, assist, call it what you want, or encourage Mr. Kinkead to do anything, then he's equally guilty, but I'm going to suggest to you at the end of the day that it's obvious that it's this man, Mr. Ranger, who in fact is the stabber for reasons I'll develop in due course.

(Emphasis added)

[150] At a recess during the Crown's closing submissions, the trial judge advised counsel that he had prepared portions of his jury charge. In this context, he stated: "I've got some of the sections done. . . . I'll have to excise counselling to commit an offence."

[151] The following exchange then occurred between defence counsel and the trial judge immediately before defence counsel's closing submissions to the jury:

Mr. Charles: And there is one theory, as I understand the Crown's case, it is that it was Mr. Ranger who killed those two girls.

The Court: It doesn't matter who killed them if there's aiding and abetting. I obviously have to put aiding or abetting.

Mr. Charles: But there is not one scintilla of aiding and abetting, a scintilla of evidence.

The Court: No, if the other person's present in there, that would bespeak greatly of a joint plan to kill, so if there's a joint plan to kill, it's both aiding and abetting. If he's there, he's guilty as either a principal or a secondary offender. [page47 ]

Mr. Charles: The point in this case is has the Crown been able to establish beyond a reasonable doubt that Mr. Ranger was in that house . . . That is the pivotal issue in this case.

The Court: I tend to agree.

Mr. Charles: Yes.

The Court: Do you tend to agree Mr. Clark?

Mr. Clark: Yes, I think that's in some sense fair, yes.

The Court: You want me to put that the Crown has to prove that somehow he was inside the premises.

Mr. Charles: Yes, and the video, which is the most compelling evidence, better than a thousand witnesses, puts him there at Scarborough Town Centre at a certain time.

(Emphasis added)

(c) Defence's closing address

[152] Defence counsel then addressed the jury on the basis that his client could not be found guilty unless the jury was satisfied that he was present when Marsha and Tamara Ottey were killed. For example, at one point defence counsel stated the following:

Now, Mr. Clark makes much of the association between Rohan Ranger and Adrian Kinkead, but a lot of his evidentiary basis for this comes from a tainted source, that being Mr. Kinkead himself. In any event, in this country we cannot be found guilty through association. The association, in my submission to you, of Ranger with Kinkead cannot lead to his guilt unless you conclude beyond a reasonable doubt that they were both at the crime scene, one or the other aiding, either both directly involved or aiding and abetting the other.

(Emphasis added)

[153] In a similar vein, defence counsel, at the close of his jury address, framed the issue for the jury as follows:

The pivotal issue here is this. Are you sure on the evidence before this Court that Rohan Ranger was at 88 Valley Stream in the early morning of August 16, 1995? . . . The evidence points much more strongly to Kinkead being the sole killer of the Ottey sisters and fails to prove Mr. Ranger's guilt by a long measure, never mind a reasonable doubt.

(d) Pre-charge discussion following closing submissions

[154] The pre-charge discussions that followed both counsels' closing submissions included further references to the appellant's liability if he was not at the scene. At one point, the trial judge stated to counsel that in his view there were three scenarios on which the jury could convict, the third being one where "Ranger [page48 ]isn't there and they can only convict on that scenario on the basis that he aids and abets as a positive act in the sense of aiding and abetting." Defence counsel reminded the trial judge at this point about the Crown's request, made before either counsel had made closing jury submissions, that the trial judge not instruct the jury on counselling. The trial judge responded to this by distinguishing between counselling and aiding and abetting and by stating that neither he nor the jury were bound by the Crown's position.

(e) Trial judge's charge to the jury

[155] The trial judge instructed the jury that there were three scenarios according to which they could find the appellant guilty of any offence in respect of the death of Marsha or Tamara Ottey. The first scenario was that the jury was satisfied beyond a reasonable doubt that the appellant actually killed one or both of the Ottey sisters. The second scenario was that they were satisfied beyond a reasonable doubt that Adrian Kinkead actually killed one or both of the Ottey sisters and that the appellant, while in the basement of the Ottey home, aided or abetted him. The third scenario, and the one that is in question on this appeal, was that they were satisfied beyond a reasonable doubt that Adrian Kinkead actually killed one or both of the Ottey sisters and that the appellant aided or abetted him, but in this scenario the appellant was not present in the basement or at the crime scene when he aided or abetted Adrian Kinkead.

[156] During the course of his main charge, the trial judge instructed the jury on five separate occasions that they could convict the appellant, even if he was not present in the basement or at the crime scene at the time that Marsha and Tamara Ottey were killed. One of these instructions was made in the context of explaining the meaning of "abet". The trial judge instructed the jury on this point as follows:

It is necessary to keep in mind that the Crown need not prove that the accused, Ranger, was present in the basement in order to prove beyond a reasonable doubt that the accused, Ranger, aided or abetted Adrian Kinkead in the latter's intentional killings of the Ottey sisters.

Abetting simply means the giving of any form of encouragement. However, the encouragement must have been given by Ranger, the secondary offender, again with the knowledge and the purpose that Kinkead intentionally kill the Ottey sisters.

Assuming you find as a fact that the accused, Ranger, enlisted the aid of his cousin to intentionally kill the Ottey sisters, it is then open to you to be satisfied beyond a reasonable doubt that Ranger is guilty as a secondary party to Kinkead's murders of the Ottey sisters so long as the accused requested the [page49 ]aid of Kinkead with the knowledge and purpose that the Ottey sisters be intentionally killed by Kinkead. A request to kill someone constitutes a positive act of abetting or encouragement. I repeat, a request to kill someone constitutes a positive act of abetting or encouragement.

[157] The final instruction on this issue was given almost at the very end of his charge, when the trial judge summarized for the jury what approach they should take. He told the jury that, first, they must evaluate the evidence in a global fashion in an attempt to determine the truth of the case, and second, they must relate their evaluation of the whole of the evidence to the essential elements that must be proven by the Crown. He then twice repeated the following instruction:

It seems to me that should you find as fact that the accused, Rohan Ranger, was in or about 88 Valley Stream around the time the Ottey sisters were killed, that finding of fact will be a giant step towards your being satisfied beyond a reasonable doubt that the accused unlawfully participated in the killing of the Ottey sisters. In making that determination, you must assess the evidence cumulatively and not in piecemeal fashion. Thus the evidence of Victor Lo must not be assessed in isolation but must be weighed together with all the evidence, including the evidence of motive, association, death threats, staging and any other evidence you find relevant to this determination.

Assuming, however, that the Crown fails to prove to your satisfaction the accused, Rohan Ranger, was in or about 88 Valley Stream around the time the Ottey sisters were killed, it would still be open to you to be satisfied beyond a reasonable doubt that the accused, Rohan Ranger, unlawfully participated in the killing of the Ottey sisters. In making that determination, I again caution you not to fall into the trap of assessing evidence in isolation from all the other evidence relevant to that determination.

However, it will be critical to your determination that the accused, Rohan Ranger, was an aider or abettor that you find as fact that the accused, Rohan Ranger, had the sole motive to kill Marsha Ottey, that Adrian Kinkead had no motive to kill either Ottey sister and that a false break and enter was staged to divert suspicion from Marsha Ottey's ex-boyfriend.

(Emphasis added)

[158] During the course of the deliberations, the jury returned with three questions, including the following: "how does aiding apply to a person who has indirectly caused the death?" After recharging the jury on what a secondary party is and giving examples of aiding and abetting, the trial judge instructed the jury, in the context of manslaughter, that "it is fundamentally important to note, and I think I have mentioned this already, that a secondary party to an offence need not, need not be present at the crime scene in order to be criminally responsible as either an aider or an abettor."

[159] Similarly, the trial judge later stated: "For either second degree murder or a planned and deliberate first degree murder, [page50 ]an accused may be liable as a secondary party by either aiding or abetting the murder and need not have been present when the murder was committed by the principal offender."

[160] The trial judge's entire re-charge, which included the portions just referred to, was typed out later that day and read again to the jury the next day. As well, each member of the jury received a copy of the typed version of the trial judge's re-charge.

(f) Defence counsel's objections to the instructions

[161] At the conclusion of the trial judge's charge to the jury, and again following the trial judge's re-charge, defence counsel objected to the instruction that the jury could find the appellant guilty without being satisfied that he was present at the crime scene. Counsel took the position that the trial judge's instruction to the jury that they could find the appellant guilty of aiding and abetting, without finding him present at the crime scene, was, effectively, the same as the jury finding that the appellant counselled Adrian Kinkead, a matter on which the trial judge had said he would not charge the jury. The trial judge declined defence counsel's request that he re-charge the jury on this issue.

3. Conclusion

[162] It is clear that the trial judge's instructions left it open to the jury to find the appellant guilty, even if they did not accept that the appellant was present at the time of the killings, if they were satisfied that the appellant somehow aided or abetted Adrian Kinkead in killing Marsha and Tamara Ottey. In light of what transpired at trial, it is my view that it was reasonable for defence counsel to have understood from the discussions that preceded his closing address to the jury that the trial judge would not charge the jury on that basis. Independent of any conclusions as to whether the trial judge's instructions were correct in law and whether they were supported by the evidence, in the context of this case, they effectively undermined the essence of the defence's position, that is, that the appellant should be acquitted because the Crown failed to prove that he was at the Ottey home in the early morning of August 16, 1995. In these circumstances, it cannot be said that the appellant was not materially prejudiced by the trial judge's failure to notify counsel of his intention to charge the jury on this additional theory of liability before counsel's final address to the jury.

[163] In the particular circumstances that I have described, I would give effect to this ground of appeal. [page51 ]

VII. THE IDENTIFICATION EVIDENCE

[164] The identification evidence was a very important part of the Crown's case. The Crown called five witnesses who testified about having seen a man in a walkway across the street from the Ottey home around 7:30 a.m. on the days immediately preceding and on the morning that Marsha and Tamara Ottey were killed. Two of those witnesses, Victor Lo and Neville Downes, gave evidence directly implicating the appellant as the person seen in the walkway.

[165] Victor Lo testified that he saw the same man crouching in the walkway around 7:30 a.m. on August 15 and on August 16. Mr. Lo was shown a police photo line-up on September 14, 1995. He was 90 per cent sure that the appellant's photograph was a photograph of the man he had seen in the walkway and about 30 per cent sure that another man's photograph was of the man in the walkway. Mr. Lo answered "yes" to the question: "The person that you saw in the walkway those two days, do you think that you'd recognize that person if you were to see that person again?" Mr. Lo, however, was then unable to identify the appellant as that person in court.

[166] Neville Downes saw a man standing in the walkway shortly before 7:30 a.m. on August 15. Mr. Downes picked someone other than the appellant in a photo line-up shortly after the event, yet he purported to identify the appellant in- dock a year and a half later.

[167] There is no doubt that it would be a critical finding against the appellant if the jury was satisfied beyond a reasonable doubt that the appellant was in the walkway across from the Ottey home, particularly on the morning of August 16. As the trial judge put it in his final instructions, that finding would be "a giant step" towards the jury being satisfied beyond a reasonable doubt that the appellant unlawfully participated in the murders. The critical importance of this evidence was not lost on this jury, as demonstrated by their request during the course of their deliberations that the evidence of all the identification witnesses be read back to them. In these circumstances, it was essential that the trial judge instruct the jury properly in connection with this evidence, most particularly with respect to the evidence of Mr. Lo and Mr. Downes, the two witnesses who directly implicated the appellant.

[168] The appellant raises several concerns with the trial judge's charge to the jury. The gist of the appellant's position on this ground of appeal is that the trial judge's instructions, when considered as a whole and in the light of the Crown's closing [page52 ]submissions, did not effectively convey to the jury the dangers of relying on the evidence of the walkway witnesses. Rather, these instructions may have left the jury with the impression that they could place greater weight on this evidence than it reasonably deserved. I agree with this contention. I will review the most significant features of the charge that lead me to that conclusion.

[169] First, there is no question that Mr. Downes' evidence had no probative value on the question of identification of the appellant. He had not only been unable to pick out the appellant from a photo line-up, but had picked out another person as the person he had seen in the walkway. Nonetheless, Mr. Downes purported to identify the appellant in-dock at the preliminary hearing and at the trial.

[170] Mr. Lo's evidence was also very weak. His identification of the appellant in the photo line-up was, at best, equivocal and at trial, non-existent. Although the trial judge gave general instructions on the frailties of identification evidence and, in particular, on the "negligible" value of in-dock identification, his juxtaposition of Mr. Lo's and Mr. Downes' evidence may have left the jury with the impression that Mr. Downes' evidence had some evidentiary value, and that Mr. Lo's evidence was more reliable in conjunction with Mr. Downes' than it was standing alone. In this respect, I note the following excerpt from the jury charge:

In this case, Neville Downes . . . was unable to identify anyone in the photo line-up, even though the accused's picture was included in the photo line-up. However, Mr. Downes was able to identify the accused much later when he saw him in the flesh at the preliminary inquiry. Conversely, Victor Lo identified the accused from a photo line-up much earlier after the event but was unable to identify him in court at this trial. Inasmuch as Victor Lo identified the accused from a group of twelve more closely to the day when he allegedly saw the accused, his evidence is much more reliable than that of Mr. Downes. After all, Mr. Downes identified the accused much later after the event and did not do so in an objective comparison with others but in a biased setting where it should have been obvious to him who the accused was.

(Emphasis added)

[171] Second, the trial judge failed to instruct the jury that they were entitled to give some weight to Mr. Lo's failure to identify the appellant at trial: see R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, 163 C.C.C. (3d) 129 at para. 49. Rather, he instructed [the] jury as follows:

However, Mr. Lo did not identify the accused in court. Obviously, the accused while in court was wearing a suit and tie, had glasses on and was not wearing a cap as the stranger was on the days in question. The fact that Mr. Lo did not identify the accused in court should not otherwise undermine [page53 ]the reliability of his identification evidence. However, it is for you to determine whether Mr. Lo's evidence is otherwise reliable, keeping in mind the inherent weakness of identification evidence.

(Emphasis added)

[172] Third, when the trial judge's instructions are considered as a whole and in the context of the Crown's theory, I find merit to the appellant's submission that the repeated reference to Mr. Lo's evidence as "identification" was, if not a mischaracterization as contended, certainly a dangerous exaggeration of his description of the man he had seen in the walkway. As noted by the appellant in his factum, Mr. Lo's testimony was referred to as "identification" evidence at least eight times during the course of the trial judge's charge and eighteen times in the Crown's closing submissions.

[173] Finally, I also agree with the appellant's submission that the trial judge's failure to properly instruct the jury on Mr. Lo's evidence was aggravated by the misstatement of the evidence by the Crown concerning a critical part of Mr. Lo's description and the trial judge's repetition of this error in his charge. The Crown argued that it was no coincidence that all but one of the walkway witnesses described the hair of the person seen in the walkway as being "close cropped and virtually shaved up the sides". A photo of the appellant taken on the day after the Ottey sisters were killed showed him sporting a short, shaved haircut. Crown counsel dealt with this evidence in his closing address by stating the following:

Well, look at the big inset, ladies and gentlemen, and look at the haircut on that man. Look at the haircut and recall for yourselves when you look at it, recall the evidence of all those walkway people and I think and I stand to be corrected, but with the exception of Kevin Peters, who is Mr. Downes' stepson, with the exception of Mr. Peters, who as I recollect didn't give an account of what the man at the end of the walkway's hair looked like, the other witnesses all talked about it being close cropped and virtually shaved up the sides. Well, ladies and gentlemen, that's exactly what you've got in Exhibit 236-10. You've got somebody with a shaved haircut. So is it just again one more unfortunate coincidence? Mr. Lo gets the wrong guy out of the picture, so will the defence say, and not only do they get the wrong guy, but they get the wrong guy and describe a man with a short, shaved haircut and, gee whiz, there's Mr. Ranger with a short, shaved haircut. One more unfortunate coincidence. . . .

. . . [W]hen you turn it around, [Mr. Lo's evidence] becomes very powerful identification evidence. A month later he picks out the only guy we know who's connected to that street, describes him having a haircut just like he had. That photograph's taken the very next day, ladies and gentlemen, the very next day. I suggest to you Mr. Lo got it right.

(Emphasis added) [page54 ]

[174] In his charge to the jury, the trial judge reiterated the Crown's description of the evidence in his review of the Crown's position:

Look at Exhibit 236-10 from 330 McCowan taken the next day, on Thursday, August 17, 1995 in which Ranger is not wearing glasses and has close-cropped hair shaven at the sides, exactly as described by the majority of the witnesses.

(Emphasis added)

[175] In fact, of the five witnesses who saw a young black male in the walkway, only Mr. Peters described the man as having the sides of his head shaved bald. The Crown's claim that Mr. Lo described the man as having a "short, shaved haircut" was contrary to the evidence. Mr. Lo testified that he was not sure if the man he saw had any head hair because he had his hat pulled down. Given the critical importance of Mr. Lo's evidence, I cannot agree with the Crown's contention on appeal that this error was "little" or "harmless".

[176] For these reasons, I conclude that the instructions to the jury on identification evidence were inadequate and constituted reversible error.

VIII. OTHER GROUNDS OF APPEAL

[177] In view of my conclusion that there must be a new trial based on the errors discussed above, I will briefly address the other grounds of appeal that may impact on the conduct of a new trial.

A. Leaving Manslaughter as an Available Verdict

[178] It is common ground between the parties that the trial judge erred in leaving manslaughter as an available verdict on the basis that rage could constitute a partial defence to the charge of murder. In a decision released sometime after this trial, the Supreme Court of Canada held that there is no defence of rage reducing murder to manslaughter: R. v. Parent, 2001 SCC 30, [2001] 1 S.C.R. 761, 154 C.C.C. (3d) 1.

[179] The Crown takes the position, however, that this error benefited the appellant. The appellant disagrees, arguing that the manner in which manslaughter was left to the jury undermined his principal defence in this case, which was that he had nothing at all to do with the killing of Marsha and Tamara Ottey.

[180] In light of the fact that there will be a new trial on the charges of first degree murder and manslaughter, it serves no useful purpose to deal with this additional argument. [page55 ]

B. Hearsay Evidence

[181] Eighteen witnesses called by the Crown testified about statements that Marsha Ottey made to them relating to her relationship with the appellant after their break-up. In these statements, Marsha had related that the appellant was making unwanted calls and visits to her, that he was unhappy with her plans to go to school in the United States, and that he had threatened her. Marsha had also described how the appellant was persistent in his obsessive and jealous behaviour towards her, and how she was scared of him.

[182] The trial judge held a voir dire to determine the admissibility of these statements as exceptions to the rule against hearsay. Over the objection of the appellant, the trial judge did not hear oral evidence during the voir dire. Rather, he relied either on transcripts of the evidence that the proposed witnesses gave at the preliminary inquiry or on statements they had given to the police. The voir dire proceeded with the trial judge reviewing each hearsay statement, with defence counsel either conceding or objecting to the admissibility of the statement.

[183] The appellant raises three main concerns with the voir dire procedure followed by the trial judge. First, he submits that it was incumbent upon the trial judge to hear oral evidence on the voir dire to determine whether it was sufficiently reliable to warrant admission at trial. Second, he submits that the trial judge did not make a threshold assessment of the reliability of each individual proposed statement; rather, it appears that he accepted the Crown's argument that this criterion could be met on the basis that Marsha was "a reliable historian". The appellant argues that this approach is improper and contrary to the factors for assessing threshold reliability set out by the Supreme Court of Canada in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 147 C.C.C. (3d) 449. Third, the appellant submits that the trial judge made no inquiry into the necessity of calling all these witnesses, whose evidence was repetitive. He submits that the calling of these witnesses turned the trial, for a large part, into a trial about the appellant's relationship with Marsha.

[184] I would not give effect to this ground of appeal. My reasons with respect to each point can be stated succinctly.

[185] First, I see no reason to interfere with the trial judge's decision to proceed on the basis of transcripts and summaries of the proposed evidence. The question whether oral evidence will be required or not on the voir dire is one to be determined according to the nature of the evidence in question and the issues to be canvassed. I note in this respect that, later in the course of the [page56 ]voir dire, the trial judge modified his ruling and indicated that he would permit either party to call those witnesses who had not testified at the preliminary hearing if they saw fit. Neither party sought to call witnesses at that time. When considered in its entirety, I am not persuaded that the procedure followed did not allow for a full canvassing of the relevant issues.

[186] Second, the trial in this matter occurred two years before the Supreme Court of Canada's decision in R. v. Starr, supra. The Crown concedes that the trial judge referred to factors the Supreme Court later held should not be considered when deciding threshold reliability. The Crown submits, however, that the trial judge's decision that the statements were reliable was inevitable. I do not find it necessary to determine whether the trial judge erred in admitting any of the statements on the basis that he did. In view of the fact that there will be a new trial, this is a matter to be determined in light of the more recent jurisprudence at the new trial.

[187] Third, I see no merit to the appellant's contention that the trial judge erred in failing to consider whether it was necessary to call all of the proposed witnesses. The necessity component of the two-part threshold test for the admission of hearsay evidence does not extend to an assessment of whether the proposed evidence is unnecessary in the sense that it may be repetitious. What, in fact, the appellant is arguing is that there is an overall discretion for the trial judge to exclude evidence that is otherwise relevant and probative, if its prejudicial effect outweighs its probative value. On this point, he relies on the decision in R. v. Parsons (1996), 1996 11073 (NL CA), 146 Nfld. & P.E.I.R. 210, 456 A.P.R. 210 (C.A.), where some 40 witnesses were called to make one point. In the case at bar, however, the hearsay witnesses related different statements made by Marsha Ottey or gave evidence about different events. Further, the record reveals that the trial judge was mindful of the cumulative effect of the admission of all of this evidence. To the extent that the issue was raised at trial, the trial judge dealt with the argument that the evidence would be unduly repetitive. I see no reason to interfere with his decision on this issue.

IX. CONCLUSION

[188] For these reasons, I would allow the appeal and direct a new trial. The Crown has not cross-appealed with respect to the conviction for manslaughter. Therefore, there is to be a new trial on first-degree murder with respect to Marsha and on manslaughter with respect to Tamara.

Appeal allowed.

[page57 ]

Notes

Note 1: R. v. Kinkead (2003), 2003 52177 (ON CA), 67 O.R. (3d) 57 (C.A.), post.