Editor’s note : Corrigendum released October 20, 2005. Original judgment has been corrected accordingly.

DATE: 20051018

DOCKET: C40860

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and – GANESHRAM RAGHUNAUTH (Appellant)

BEFORE:

LABROSSE, SHARPE and GILLESE JJ.A.

COUNSEL:

Russell Silverstein

for the appellant

David Finley

for the respondent

HEARD:

October 13, 2005

On appeal from the conviction imposed by Justice Robert F. Scott of the Superior Court of Justice, sitting with a jury, dated June 5, 2003.

E N D O R S E M E N T

[1] The appellant appeals his conviction of June 5, 2003, by a court composed of a judge and jury, for the first-degree murder of his wife.

[2] The autopsy and toxicological tests indicated substantial amounts of benzodiazepine Temazepam and cyanide in his wife who died on May 14, 2000. The cause of death was determined to be cyanide poisoning.

[3] The theory of the Crown was that the appellant had introduced Temazepan into his wife’s system and later added the cyanide when she was incapacitated by the effect of the sedative. The Crown alleged that the appellant was engaged in extra-marital affairs and wished to begin a new life with another woman. It also alleged that the appellant was in a precarious financial situation and needed the proceeds of a mortgage insurance policy on his wife’s life.

[4] The appellant testified and denied poisoning his wife. It was the appellant’s position that his wife was driven to suicide by new evidence of his infidelity.

[5] The appellant raises only one issue on this appeal: whether the trial judge erred in admitting the evidence of the appellant’s fraudulent behaviour in defrauding a former employer of approximately $33,000 in the spring of 1999 and in stealing some $4,500 from a customer of another employer in April 2000. The appellant does not challenge any other aspect of this fourteen-week trial.

[6] The respondent submits that the evidence was properly admitted, but essentially rested its case before us on the application of the curative proviso, s. 686(1)(b)(iii) of the Criminal Code, R.S.C. c.C.-46, as amended.

[7] In our view, the admissibility of the impugned evidence of bad character was borderline at best. However, we agree with the respondent that this is an appropriate case to apply the proviso.

[8] The appellant submits that as he testified, the case essentially turned upon his credibility and whether his evidence was capable of raising a reasonable doubt in the mind of the jury. Reliance is placed upon R. v. Dunn (1993), 82 C.C.C. (3d) (Ont. C.A.), citing R. v. B (F.F.) (1993), 79 C.C.C. (3d) 112 (S.C.C.): “The evidence in this case appears very strong against the appellant, but the verdicts rest solely on credibility. I cannot say that the result was inevitable had the charge been proper and complete.”

[9] We agree that caution should be exercised before applying the proviso in cases resting solely upon credibility. However, we do not agree that there is a rule excluding the proviso in cases turning upon credibility. Rather, in every case, the applicability of the proviso must depend upon careful consideration of the particular facts and circumstances.

[10] We apply the proviso in the present case for the following reasons.

[11] First, the evidence forms an overwhelming case against the appellant. It includes: the evidence of motive to kill, the inquiries by the appellant on the poison cyanide, the improbability of suicide, the forensic evidence and the improbability of the appellant’s explanation for his wife’s suicide. This case did not solely depend on credibility and the significance of the appellant’s fraudulent conduct paled into insignificance in the face of the Crown’s case.

[12] Second, there was other evidence, the admissibility of which is not challenged, that showed the appellant to be a cheat and a liar, as conceded by the appellant’s trial counsel. In our view, there is no reasonable possibility that the evidence of the appellant’s fraud tipped the balance and led the jury to convict.

[13] Third, the jury was cautioned seven times during the trial and four times in the charge about the improper use of such evidence. As we accept that a properly instructed jury will not misuse evidence, it is reasonable to conclude that this jury did not make improper use of the evidence or punish the appellant for his fraudulent conduct by convicting him of first degree murder.

[14] To paraphrase Binnie J. in R. v. Jolivet (2000), 2000 SCC 29, 144 C.C.C. (3d) 97 at para. 46, the evidence against the appellant was powerful and there is no realistic possibility that a new trial would produce a different verdict. It follows that this is an appropriate case to apply the proviso.

[15] Accordingly, the appeal is dismissed.

“J.M. Labrosse J.A.”

“Robert Sharpe J.A.”

“E.E. Gillese J.A.”