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

77 O.R. (3d) 784

[2005] O.J. No. 5095

Docket: C38935

Court of Appeal for Ontario,

McMurtry C.J.O., Laskin and Lang JJ.A.

November 30, 2005

Criminal law -- Evidence -- After-the-fact conduct ("consciousness of guilt") -- Accused convicted of murdering his estranged girlfriend -- Trial judge not erring in admitting evidence of accused's after-the-fact demeanour -- Accused not only showing no interest in victim's disappearance but telling others of his lack of interest -- Evidence relevant to rebut defence position that accused remained friendly with victim after their break-up -- Trial judge emphasizing caution about use of demeanour evidence in his charge to jury -- Admission of evidence not unfair to accused.

Criminal law -- Evidence -- Character -- Accused convicted of murdering his estranged girlfriend -- Trial judge properly admitting evidence that accused showed romantic interest in another woman shortly after victim's disappearance -- Evidence went to accused's motive and rebutted defence position that accused continued friendship with victim after their separation -- Trial judge erring in admitting evidence that accused demonstrated to other woman most effective way to cut her wrists, that other woman feared accused after she terminated her relationship with him and that he had told her that he had learned how to be vindictive -- That evidence not relevant to relationship between accused and victim -- Crown counsel exacerbating problem in closing submissions by referring to those pieces of "bad character" evidence when reviewing accused's after-the-fact conduct -- Evidence against accused so overwhelming that [page785] verdict would inevitably have been same had errors not been made -- Curative proviso applied -- Appeal from conviction dismissed -- Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b) (iii).

Criminal law -- Evidence -- Hearsay -- Crown referring in closing address to hearsay evidence that had been ruled inadmissible with respect to accused's work schedule on day of murder -- Other admissible evidence establishing accused's failure to work on day of murder -- Defence using evidence to its advantage in closing address -- No defence objection at trial -- Accused not prejudiced by Crown's error.

The accused was convicted of the first degree murder of his estranged girlfriend. The victim had ended the relationship and had asked the accused to leave their apartment when she disappeared. Her friends and landlord were concerned about her, but the accused showed no interest in her absence and expressed that lack of interest to the victim's landlord and one of her friends. He was the prime suspect in the victim's disappearance, but was not charged with her murder until two years later, when G, a friend of his, took the police to the location of the victim's remains. G testified at trial that the accused called him on the evening of the victim's disappearance, told him that he had killed her by suffocating her with a cloth sprayed with Quickstart and dismembered her body in their apartment bathtub, using a hacksaw, and asked for his help. G testified that he and the accused disposed of the victim's body parts. G had a lengthy criminal record and was facing six counts of sexual assault. He had a history of lying to the police. At the accused's trial, G denied receiving any consideration for his co-operation with the police, but acknowledged that the Crown had agreed to seek no more than the one-year sentence he received as an accessory in disposing of the victim's remains. G's girlfriend at the time of the murder, C, also testified, stating that she recalled G receiving a phone call that night and telling her he was going out with the accused to "take care of business", and that he took gloves, a shovel and garbage bags with him when he left. In light of G's dubious credibility, the trial judge gave a strong and thorough unsavoury witness caution, instructing the jury that they could not rely on G's testimony unless they found confirmatory evidence. The accused appealed his conviction.

Held, the appeal should be dismissed.

While the Crown in her closing address referred to hearsay evidence concerning the accused's work schedule on the day of the murder which had been ruled inadmissible, and the trial judge did not correct the Crown's error, the error did not affect other admissible evidence that established the accused's failure to work later that day, as he had apparently planned to do. There was admissible evidence before the jury of direct communication between the accused and the owner of the taxi which the accused drove about the accused's unusual behaviour in not showing up for work that day. Moreover, there was admissible evidence that the taxi owner tried to find the accused three times that afternoon. The Crown's error did not result in any unfairness to the accused.

The trial judge did not err in admitting evidence of the accused's after-the-fact demeanour. He was alert to the problems surrounding the use of after-the-fact evidence, and restricted the Crown's introduction of the accused's after- the-fact demeanour to: the accused's lack of interest in the victim's disappearance; his failure to notify anyone about her disappearance; his failure to assist in searching for her; and his failure to make direct inquiries as to the status of the police investigation into her disappearance. The accused's apparent uninterested demeanour was confirmed by his express acknowledgement of that lack of interest to the victim's landlord and one of her friends. The jury was not asked to weigh the appropriate or [page786] "normal" range of reaction for the accused when confronted with his girlfriend's disappearance. Moreover, this evidence was directly relevant to rebut the defence position that the accused remained friendly with the victim even after she asked him to leave the apartment. Accordingly, the evidence of the accused's conduct following the victim's disappearance was relevant to the state of that relationship at the time of the victim's disappearance. Nonetheless, the trial judge emphasized caution about that evidence in his charge to the jury, warning the jury that the conduct was subject to different interpretations and characterizing some of the evidence as "ambiguous". He reminded the jury that the victim's landlord had admitted that he did not know the accused well and would not know his range of behaviour. He cautioned the jury that the accused's demeanour could be explained by his exhaustion, or his break-up with the victim. It was clear to the jury that the accused offered an innocent explanation for his lack of interest, and they would have considered the after-the-fact conduct in that context. There was no unfairness to the accused.

The trial judge admitted evidence from B about the accused's initiation of a romantic relationship with her only 37 days after the victim's disappearance and his giving her a ring shortly thereafter, not as evidence of after-the-fact conduct, but to rebut the defence position that the accused continued a social friendship with the victim after their separation. The trial judge ruled the evidence relevant to motive. He gave an appropriate limiting instruction about the amorous relationship. The trial judge was correct that the evidence about the accused's amorous interest in B was relevant to motive. However, evidence was also admitted that, after B attempted suicide, the accused demonstrated to her the most effective way to cut one's wrists. B was also permitted to testify that, after she terminated her relationship with the accused, she feared him, and that he told her that he distinguished between friends and enemies and that he had learned how to be vindictive. That evidence could not relate to the state of the relationship between the accused and the victim. The trial Crown exacerbated the problem in her closing submissions by referring to the two pieces of "bad character" evidence when she reviewed the accused's after-the-fact conduct. There was a risk that the jury would have concluded that the accused was a bad person, and therefore that he must be guilty. However, this was an appropriate case for the application of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, as the evidence was so overwhelming that the verdict would inevitably have been the same had the prejudicial "bad character" evidence not been admitted. The error occasioned no substantial wrong or miscarriage of justice.

APPEAL from the conviction for first degree murder entered by Lally J. of the Superior Court of Justice, sitting with a jury, on February 9, 2002.

Cases referred to R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5, 111 D.L.R. (4th) 48, 162 N.R. 280, 87 C.C.C. (3d) 289, 27 C.R. (4th) 1; R. v. Baltrusaitis (2002), 2002 36440 (ON CA), 58 O.R. (3d) 161, [2002] O.J. No. 464, 162 C.C.C. (3d) 539 (C.A.); R. v. Bennett (2003), 2003 21292 (ON CA), 67 O.R. (3d) 257, [2003] O.J. No. 3810, 179 C.C.C. (3d) 244, 19 C.R. (6th) 109 (C.A.), leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 534; R. v. Diu (2000), 2000 4535 (ON CA), 49 O.R. (3d) 40, [2000] O.J. No. 1770, 144 C.C.C. (3d) 481, 33 C.R. (5th) 203 (C.A.); R. v. Edelenbos (2004), 2004 875 (ON CA), 71 O.R. (3d) 698, [2004] O.J. No. 2810, 187 C.C.C. (3d) 465, 23 C.R. (6th) 350 (C.A.), supp. reasons 2004 48159 (ON CA), [2004] O.J. No. 5141, 191 C.C.C. (3d) 575 (C.A.); R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, 207 D.L.R. (4th) 289, 279 N.R. 79, [2002] 3 W.W.R. 1, J.E. 2002-24, 160 Man.R. (2d) 161, 160 C.C.C. (3d) 1, 47 C.R. (5th) 348; R. v. Levert, 2001 8606 (ON CA), [2001] O.J. No. 3907, 150 O.A.C. 208, 159 C.C.C. (3d) 71 (C.A.); R. v. Trotta[ cf1], 2004 34722 (ON CA), [2004] O.J. No. 4366, 191 O.A.C. 322, 190 C.C.C. (3d) 199 (C.A.); R. v. W. (L.K.), 1999 3791 (ON CA), [1999] O.J. No. 3575, 126 O.A.C. 39, 138 C.C.C. (3d) 449 (C.A.), leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 383; R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, [1998] S.C.J. No. 57, 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 [page787] Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)[as am.] Authorities referred to Ontario, Report of the Commission on Proceedings Involving Guy Paul Morin (Toronto: Ontario Ministry of the Attorney General, 1998)

Leslie Paine, for respondent. Allan G. Letourneau, for appellant.

The judgment of the court was delivered by

[1] LANG J.A.:-- The appellant, James Wall, appeals from his conviction for the first degree murder of Jutta Weber. The appellant challenges aspects of the jury charge, the admissibility of certain evidence, and the trial Crown's characterization of that evidence during her closing submissions. For the reasons that follow, I would dismiss the appeal.

Facts

[2] Ms. Weber was the appellant's former girlfriend. The two shared an apartment in Kingston, Ontario. Ms. Weber ended the relationship in the summer of 1997, and gave the appellant until mid-August to move out of the apartment. At trial, the Crown alleged that on Thursday, August 7, 1997, the appellant murdered Ms. Weber.

[3] Ms. Weber was last seen leaving her employment at Wal- Mart on Wednesday, August 6 at 10:00 p.m, when a co-worker saw her drive her GMC Jimmy truck out of the Wal-Mart parking lot heading towards her apartment. Ms. Weber was not seen again. Her remains were found two years later.

[4] Donald Gazley's evidence was central to the Crown's case. Gazley and the appellant were described as best friends. Gazley testified that the appellant called him about 6:00 p.m. that Thursday. At about 11:00 p.m., the appellant picked Gazley up in the Jimmy truck and told him he had killed Ms. Weber by suffocating her with a cloth sprayed with "Quickstart" and then had dismembered her body in their apartment bathtub, using a hack saw. When the appellant picked Gazley up, he had Ms. Weber's remains in garbage bags in the back of the Jimmy truck.

[5] The appellant and Gazley drove to a swampy area outside Kingston where the appellant unloaded the garbage bags. Gazley [page788] left with the Jimmy truck and returned later to pick up the appellant. In this way, the Jimmy truck could not be later identified as parked in the area.

[6] Gazley gave further evidence going to the appellant's intent. He recalled a conversation earlier in 1997 in which the appellant questioned him about the toxicity of Quickstart. Gazley also testified that the appellant had told him that, before he killed Ms. Weber, he had purchased a hack saw, blades and cleaning supplies at a Canadian Tire store.

[7] Friends testified that they looked for Ms. Weber on the Thursday, because she had made arrangements with them for various activities on that day, which was her day off. By the weekend, the concern of Ms. Weber's friends and her landlords increased. They went to her apartment. The appellant, who was in the apartment, appeared to be disinterested in Ms. Weber's absence and expressed his disinterest. The concern of Ms. Weber's friends and landlords further increased when they found Ms. Weber's handbag, shoes, and a locket she always wore still in the apartment.

[8] Although the appellant was the prime suspect in Ms. Weber's disappearance, he was not charged with her murder until two years later, in January of 2000, after Donald Gazley took the police to the location of Ms. Weber's remains.

[9] To explain his knowledge about Ms. Weber's remains and their location, Gazley admitted his complicity in the disposal of the remains. He minimized, however, the extent of his involvement. He told the police about the appellant's various admissions about killing Ms. Weber. Two days later, the appellant was arrested and charged with Ms. Weber's murder.

[10] At the time, Gazley, who already had a lengthy criminal record, was facing six counts of sexual assault. At the appellant's trial, Gazley denied receiving any consideration for his co-operation with the police, including any consideration on the sexual assault charges. He acknowledged, however, that the Crown had agreed to seek no more than the one-year sentence he received as an accessory in disposing of Ms. Weber's remains.

[11] The Crown alleged that the appellant killed Ms. Weber because she had ended their relationship and had demanded that the appellant vacate the apartment. While the defence conceded that Ms. Weber had ended the romantic relationship, it elicited evidence from Ms. Weber's friends that the appellant and Ms. Weber maintained a friendship after their break-up, including attending family gatherings and other events together.

[12] Donald Gazley's evidence was suspect for a number of reasons. His lengthy criminal record included many convictions for offences of dishonesty. In addition, he admitted perjuring himself [page789] in various trials and in several of his sworn videotaped police statements. He admitted that he had told lies, even lies that he promised were true "on his own son's life". In cross-examination at trial, he admitted that he lied to the police during the Jutta Weber investigation.

[13] Gazley's girlfriend at the time of the murder, Kelly Cedarwall, also testified. She recalled Gazley receiving a phone call that night and telling her that he was going out with "John" to "take care of business". When Gazley left that evening, he took with him gloves, a shovel and garbage bags. At trial, Gazley denied any reference to going out with "John" to "take care of business", and he denied that he left with either a shovel or garbage bags. He did admit taking gloves with him at the appellant's request.

[14] The Crown called scientific evidence. A forensic odontologist testified that the skull found near Kingston was that of Ms. Weber. Katherine Gruspier, a forensic anthropologist, testified that Ms. Weber's femur had been cut by a sharp straight-edged instrument having a width of less than 1.1 millimetres. She also referred to the properties of a hack saw, which gives rise to one of the issues on this appeal. The Crown's D.N.A. expert testified about blood found in the apartment and in the Jimmy truck. The blood evidence gives rise to another ground of appeal.

[15] The defence at trial did not take the position that Gazley was responsible for Ms. Weber's death. Instead, the defence took the position that Gazley was a liar who identified the appellant as the killer because he wanted to avoid a potential dangerous offender application and to obtain low sentences on his outstanding charges.

[16] In light of Gazley's dubious credibility, the trial judge gave a strong and thorough unsavoury witness caution, instructing the jury that they could not rely on Gazley's testimony unless they found confirmatory evidence. As confirmatory evidence, the Crown relied on the appellant's motive (including his subsequent relationship with one Debra Brooks, which began shortly after the disappearance of Ms. Weber); Gazley's leading the police to Ms. Weber's remains; Cedarwall's evidence about Gazley's statements and actions that night; the police's recovery of garbage bags and a shovel near Ms. Weber's remains; Ms. Weber's blood in the Jimmy truck; the blood in the apartment; the appellant's uncharacteristic behaviour in not showing up for work on the Thursday evening; and the appellant's after-the-fact conduct showing his lack of interest in Ms. Weber's disappearance.

Issues

[17] The appellant raises the following issues: [page790]

(1) Did the trial judge err in his charge to the jury:

(i) in his instruction about the blood found in the apartment;

(ii) in failing to correct the trial Crown's closing address about blood located in the shop vac in the apartment; and

(iii) in advising the jury that the anthropologist's evidence could confirm Gazley's evidence that a hack saw had been used to dismember the body?

(2) Did the trial judge err first in allowing the trial Crown to adduce hearsay evidence about the appellant's work schedule, and then in not correcting the trial Crown's use of that evidence in her jury address?

(3) Did the trial judge err in allowing the trial Crown to adduce after-the-fact evidence with respect to the appellant's demeanour and conduct?

(4) Did the trial judge err in failing to advise the jury that, contrary to the remarks of the trial Crown in her closing address, there was no evidence that the appellant took Ms. Weber's computer when he left their apartment?

(5) Did the trial judge err in admitting evidence of the appellant's subsequent relationship with Debra Brooks?

1. Errors in the charge to the jury

(i) Blood in the apartment

[18] During their investigation, the police sprayed the apartment with Luminol to disclose potential blood stains. They located two small stains on the bathroom floor and particles in the shop vac found in the apartment. Using Kastle-Meyer testing, the stains and particles were identified as blood. However, the testing was inconclusive as to whether that blood was human or animal. In her evidence, the Crown's expert, Monica Sloan, was clear that the stains in the apartment and the particles in the shop vac were blood, but testified that they could not be identified as human blood, let alone Ms. Weber's blood.

[19] In his charge, the trial judge cautioned the jury"there was no human blood in Jutta's apartment". Later, the judge told the jury: [page791]

In respect of the apartment, two small stains, one the size of a quarter, the other the size of a "loonie", were tested, and the Crown expert could say that the stains contained blood.

[20] The appellant objects to this later part of the charge arguing that the trial judge ought to have specified that the blood was not identified as human blood.

[21] This ground of appeal cannot succeed.

[22] The trial judge told the jury that the apartment blood was not human. Since there was no evidence whether the blood was human or animal, this was not accurate, however, it operated to the appellant's advantage. When the judge later referred to blood in the apartment, the jury would have been alert to this and would not have been misled.

[23] Further, any remote possibility of a misapprehension on the jury's part would have been corrected later in the charge when the trial judge reviewed the defence's primary position: the appellant did not kill Ms. Weber; Gazley lied to the police; and there was no evidence of blood in the apartment.

(ii) The trial Crown's address on the shop vac

[24] When discussing the shop vac in her closing submissions, the trial Crown said that the expert "found indications of blood in the intake of the motor, and at the bottom of the motor, but nothing in the hose" and, as well, that "there were chemical indications of blood found in the canister".

[25] The appellant argues that the trial judge err in failing to clarify this by telling the jury that there was no evidence of human blood in the shop vac.

[26] However, the trial judge had already told the jury that "there was no human blood in Jutta's apartment". If anything, this mischaracterization of the evidence would have benefited the appellant. Further, any possible misconception was amply forestalled when the trial judge later reviewed the defence position that there was no blood in the apartment and that the appellant had not killed Ms. Weber.

[27] Although the expert evidence could not prove the apartment blood to be human, it did establish that the blood in the Jimmy truck was not only human, but that it was Ms. Weber's. The appellant raised the concern that if the jury accepted that evidence, then when combined with other evidence, the jury could infer that the apartment blood was also human blood and that it was Ms. Weber's blood. In my view, this evidence was properly before the jury and its use was for the jury to decide.

[28] Accordingly, the trial judge did not err in failing to repeat for the jury that which was already abundantly clear: the scientific [page792] evidence could not establish whether the apartment blood was human or animal.

(iii) The hack saw evidence

[29] In his charge, the trial judge told the jury:

Mr. Gazley said that Mr. Wall told him he had used a hack saw to cut up Jutta, that it surprised him it took so long, and that he went through a lot of blades. Kathy Gruspier, the forensic anthropologist, gave evidence that could confirm the use of a hack saw -- at least from her examination of the right femur.

[30] Since the Crown called no evidence in addition to that of Gruspier to prove that a hack saw had been used to dismember Ms. Weber's body, the appellant argues that the trial judge erred in instructing the jury that Gruspier's reference to a hack saw could confirm Gazley's evidence.

[31] Gruspier began this part of her testimony saying only that a saw with a straight thin blade of less than 1.1 millimetres was used to cut the femur in four different places. She continued, however, to describe such a saw. In doing so she gave evidence that she had used a hack saw to cut bones in Third World countries, where surgical saws were not available. She explained that she used "hack saw" as a general term, and continued that: "a hack saw works quite well because it has a thin blade".

[32] In my view, Gruspier's evidence about the thickness of the blade used on Ms. Weber's body, and her evidence of the properties of a hack saw for cutting bone, were more than sufficient to ground the trial judge's carefully worded instruction that this evidence "could confirm the use of a hack saw".

[33] While it is not determinative, I note that the defence did not object to the trial judge's charge on this issue, an indication that the defence did not then consider the issue to be one of significance.

2. The work schedule hearsay evidence and the trial Crown's use of that evidence

[34] On Thursday, August 7, 1997, sometime between 4:30 and 5:00 a.m., the appellant finished his shift and turned the taxi over to its owner, Mr. Letourneau. It was the Crown's position at trial that the appellant intended to work that evening and failed to show up for work, which was unusual behaviour for the appellant.

[35] Indeed, Letourneau testified that he expected to meet the appellant at 5:30 p.m. that Thursday to turn over the taxi and that the appellant, who was a reliable worker, did not show up.

[36] In addition to that evidence, however, the Crown sought to call evidence through Letourneau about additional unusual behaviour by the appellant that day. The Crown wanted to establish that, [page793] in three conversations, the appellant had told the taxi dispatcher that the appellant wanted to meet Letourneau at three specific locations that afternoon. Further, the Crown wanted to establish through Letourneau that the dispatcher had relayed this information to Letourneau and that Letouneau had looked for the appellant unsuccessfully three times and eventually stopped looking.

[37] The trial judge ruled that what the taxi dispatcher told Letourneau was inadmissible but that Letourneau could testify about the steps he took as a result of the dispatches. In the result, Letourneau testified that he received three dispatches and that, as a result of those dispatches, he looked for the appellant in three locations and then stopped looking. He also testified that this was unusual behaviour on the appellant's part. He did not, subject to the following exchange with the trial Crown, purport to give evidence about the content of those dispatches:

Q: Okay. Now, had this ever happened before -- that Jim . . . where you had an expectation, and . . . ?

A: Well, if you mean, did he ever want to start a little early and, and me give up the car early . . . ? Yes, um, that . . . that had happened before.

Q: Okay. What about the situation, starting . . . wanting to start early, and then not showing up?

A: No, that was . . . that was unusual. Yeah. Jim was pretty dependable.

[38] While that evidence verges on hearsay, the real problem is not with that evidence but with the trial Crown's use of that evidence in her closing address when she said:

Thursday afternoon, Mr. Wall was scheduled to work at 5:30, and he never showed up for work.

First, he called Mr. Letourneau to pick him up at 4:00 p.m., but he wasn't where Mr. Letourneau thought he was to meet him.

[39] The appeal Crown concedes that the trial Crown was not entitled to tell the jury about the content of any conversation between the appellant and the dispatcher without calling the dispatcher as a witness. Thus, the trial Crown ought not to have suggested that the appellant called the dispatcher hoping to start work early on Thursday. The appellant takes particular exception because, if accepted, the evidence of the calls to the dispatcher might have been used by the jury as evidence that the appellant wanted to work that evening, which finding would have been prejudicial to the appellant in light of other evidence that it was unusual for him not to show up for work.

[40] In his charge, the trial judge did not correct the trial Crown's error. [page794]

[41] The error, however, did not affect other admissible evidence that established the appellant's failure to work later that Thursday. Letourneau also testified that, the Saturday following Ms. Weber's disappearance, the appellant apologized to him for not working the Thursday night. Accordingly, there was admissible evidence before the jury about direct communication between Letourneau and the appellant about the appellant's unusual behaviour in not showing up for work Thursday.

[42] Moreover, there was admissible evidence from Letourneau that, as a result of the dispatches, he had tried to find the appellant three times Thursday afternoon. This evidence would have been before the jury irrespective of the Crown error.

[43] Although the reference to the content of the dispatches may have been improper, and while the trial Crown ought not to have referred to that evidence in her closing submissions, the defence in the end used the dispatch evidence to its advantage. In his closing submissions, defence counsel implied that, if the Crown had called the dispatcher, the dispatcher would have shown that Letourneau had been mistaken in thinking (after dropping off the appellant on Thursday morning) that the appellant intended to work later that evening.

[44] The absence of any defence objection at the time the evidence was given, or to the trial Crown's closing, suggests the defence did not consider this to be a matter of concern. In all the circumstances, it cannot be said that this evidence and the Crown's error resulted in any unfairness to the appellant.

3. After-the-fact evidence

[45] On this issue, the appellant challenges both the admissibility and the use made of the appellant's after-the- fact demeanour as well as an alleged error made by the trial judge in his caution about this evidence.

[46] In a pre-trial ruling, the trial judge restricted the Crown's introduction of the appellant's after-the-fact demeanour to the following four areas: the appellant's disinterest in Ms. Weber's disappearance; his failure to notify anyone about her disappearance; his failure to assist in searching for her; and his failure to make direct inquiries as to the status of the police investigation into her disappearance.

[47] The trial judge was alert to the issues surrounding after-the-fact conduct discussed in R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, [1998] S.C.J. No. 57, 125 C.C.C. (3d) 385. In addition, the trial judge was made aware of the recommendations of the Report of the Commission on Proceedings Involving Guy Paul Morin [page795] (Toronto: Ontario Ministry of the Attorney General, 1998) and the dangers of this type of evidence, although the trial judge noted that the Report was not the law.

[48] The trial judge was not referred to and did not consider this court's decision in R. v. Levert, 2001 8606 (ON CA), [2001] O.J. No. 3907, 159 C.C.C. (3d) 71 (C.A.) decided three months earlier. In Levert, Rosenberg J.A. considered the admissibility of evidence about an individual's demeanour when confronted about a crime or potential crime. In recognizing that the prejudicial effect of such evidence could outweigh its probative value, he said (at para. 27):

The expert and other evidence introduced at the Commission strongly suggests that this evidence can be highly suspect and should be admitted at a criminal trial with caution. Perceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal.

See also R. v. Baltrusaitis (2002), 2002 36440 (ON CA), 58 O.R. (3d) 161, [2002] O.J. No. 464, 162 C.C.C. (3d) 539 (C.A.), at para. 77 (C.A.) and R. v. Bennett (2003), 2003 21292 (ON CA), 67 O.R. (3d) 257, [2003] O.J. No. 3810, 179 C.C.C. (3d) 244 (C.A.), leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 534.

[49] Concerns about the value of demeanour evidence are based on two assumptions that are now known to be questionable. First, the reception of such evidence is based on the invalid assumption that an individual confronted with allegations will react in a "normal" manner. Second, it wrongly assumes that an individual's outward reaction accurately reflects his or her inner emotional reaction.

[50] Because these assumptions are dangerous, demeanour evidence will only be admitted with caution, and only if its probative value outweighs its potential prejudice. The evidence must be sufficiently clear to render its admission of value. As Doherty J.A. said in R. v. Trotta, 2004 34722 (ON CA), [2004] O.J. No. 4366, 190 C.C.C. (3d) 199 (C.A.), at para. 41:

The circumstances surrounding the proffered evidence must be such as to make that evidence sufficiently unambiguous and demonstrative of a relevant state of mind so as to overcome concerns that a trier of fact may too easily equate what is perceived to be an "unusual" reaction with a guilty mind.

[51] In this case, the trial judge ruled that the trial Crown could tender the appellant's demeanour and conduct as after- the-fact evidence. In her closing address, the Crown contrasted the appellant's reaction with that of Ms. Weber's former husband who, despite his estrangement from Ms. Weber, expressed his hope that she was all right. She said the appellant's conduct "points to his [page796] intent and his guilty mind" and concluded that the appellant's "incriminating conduct is largely unexplained". The appellant objects to this as impermissible use of demeanour evidence.

[52] In this case, the appellant's apparent disinterested demeanour was confirmed by his express acknowledgement of that disinterest to Ms. Weber's friend, Erika Frank, and to Ms. Weber's landlord, Alvin Marks. In this situation, the jury was not asked to weigh the appropriate or "normal" range of reaction for the appellant when confronted with his girlfriend's disappearance. Rather, the appellant expressly stated that he was not concerned, and did not care, about Ms. Weber's disappearance. It was for this reason that he did not assist in investigating her disappearance.

[53] Moreover, the evidence was directly relevant to rebut the defence position that the appellant remained friendly with Ms. Weber even after she asked him to leave the apartment. Accordingly, the evidence of the appellant's conduct following Ms. Weber's disappearance was relevant to the state of that relationship at the time of Ms. Weber's disappearance.

[54] Nonetheless, the trial judge emphasized caution about that evidence in his charge to the jury and canvassed the appellant's possible innocent explanation. He warned the jury that the conduct was subject to different interpretations, and characterized some of the evidence as "ambiguous". When reviewing the evidence relating to the appellant's apparent disinterest when confronted by Ms. Weber's friends and landlords, the trial judge reminded the jury "to remember that he had been operating a cab from 2:00 a.m. Saturday morning, and he had worked for 26 hours" and "to remember that he and Jutta were in the process of separating, and Jutta had given him until the middle of August to get out of her apartment".

[55] This caution was repeated when the trial judge reviewed the defence position:

After-the-fact behaviour -- the words and demeanour of James Wall, can be ambiguous, and caused, in some instances, by lack of sleep, the emotional makeup of James Wall and the deteriorating relationship between him and Jutta. So, this evidence may be of little assistance to you, in determining the ultimate issue: has the Crown proved beyond a reasonable doubt that James Wall murdered Jutta Weber?

[56] Significantly, the appellant also raised the issue of his after-the-fact conduct at trial. Specifically, the defence relied on Letourneau's evidence that the appellant's behaviour was normal both on the morning of the murder and the Saturday after the murder. Letourneau testified on cross- examination as follows:

Q: And I take it sir, you didn't notice anything out of the ordinary?

A: No, I didn't. No. [page797]

Q: No. He [the appellant] was just his usual self?

A: Yes.

[57] Finally, on this issue, the appellant points to the trial judge's failure to end his admittedly otherwise complete caution in accordance with R. v. Diu (2000), 2000 4535 (ON CA), 49 O.R. (3d) 40, [2000] O.J. No. 1770, 144 C.C.C. (3d) 481 (C.A.), at para. 121:

The trial judge should also instruct the jury that the evidence of the accused's after-the-fact conduct can only be used to support an inference of guilt where they have rejected any innocent explanation for the conduct.

[58] In this case the trial judge told the jury this evidence was "a piece of circumstantial evidence, and is subject to different interpretations". He reminded the jury of the cross- examination of Ms. Weber's landlord relating to the appellant's demeanour in which the landlord admitted that he did not know the appellant well, and would not know his range of behaviour. The trial judge also cautioned the jury that the appellant's demeanour could be explained by his exhaustion, or his break-up with Ms. Weber. He specifically said that "the evidence may be of little assistance to you". From this, the jury would know that the appellant proffered an innocent explanation for his lack of interest and would have considered the after-the-fact conduct in that context. The trial judge immediately followed this with a reminder to the jury of the Crown's onus to prove the offence beyond a reasonable doubt.

[59] While the caution may not have been in the precise words recommended by Diu, the message conveyed was sufficient to meet any concern about unfairness to the appellant.

4. The computer evidence

[60] The appeal Crown acknowledges that the trial Crown was incorrect to suggest during her closing address that there was evidence that the appellant had taken Ms. Weber's computer, particularly in the face of the trial judge's ruling that this evidence was inadmissible. While the trial Crown improperly referred to the computer, the jury heard no evidence about the computer. The computer was a trivial issue when the evidence is considered as a whole. The trial Crown's misstatement, while unfortunate, would not have prejudiced the appellant.

5. Debra Brooks' evidence

[61] In a pre-trial motion, the Crown sought leave to adduce evidence from Debra Brooks about the appellant's initiation of a romantic relationship with her only 37 days after Ms. Weber's [page798] disappearance and his conduct in giving Brooks a ring shortly thereafter.

[62] The trial Crown characterized this evidence as after- the-fact conduct. The defence objected. The trial judge held the evidence was not admissible as after-the-fact conduct, but that it was admissible to rebut the defence position that the appellant continued a social friendship with Ms. Weber after their separation. Thus, the trial judge ruled the evidence relevant to motive.

[63] There are two aspects to the Brooks' evidence. First, there is the evidence indicating the appellant's amorous interest in Brooks. Second, there is evidence concerning the appellant's conduct towards Brooks in two instances, which the appellant characterizes as bad character evidence.

[64] The primary focus of Brooks' evidence was that the appellant's amorous conduct towards her initiated within a few weeks of Ms. Weber's disappearance. Although the appellant knew Brooks only casually, when he learned that she was hospitalized for depression, he brought her roses. In the days that followed, his visits increased in frequency and length as he attempted to initiate first a romance and then a sexual relationship. Within days he offered Brooks a ring, a replacement for a ring that the appellant had bought for Ms. Weber and which she had rejected.

[65] The appellant demonstrated compassion to Brooks over her situation by responding in a caring manner to her requests. He brought her gifts. Although likely irrelevant, except as part of the narrative of an amorous relationship, this evidence could have left the jury with a favourable impression of the appellant.

[66] The trial judge gave an appropriate limiting instruction about the amorous relationship, tying it to the live issue of the state of the relationship between the appellant and Ms. Weber at the time of her disappearance:

There was evidence that Mr. Wall, soon after Jutta's disappearance, became romantically involved with Debra Brooks, to the point that he even gave her the ring that, previously, through a convoluted process, he gave to Jutta. It certainly can be used by you to support a finding that, at least in August, 1997, James Wall did not have much love for Jutta Weber.

[67] He also cautioned the jury not to use the evidence as after-the-fact conduct capable of showing that the appellant had a guilty mind:

However, you cannot use his amorous advances on Debra Brooks ... to support a finding that Mr. Wall murdered Jutta Weber. You might think that protocol might suggest that he wait a little longer before dating. However, the most that evidence can support is that Mr. Wall, in August, 1997, had little love for Jutta Weber. [page799]

[68] In my view, the trial judge was correct that the evidence about the appellant's amorous interest in Brooks was relevant to motive. This evidence was not admitted as after- the-fact conduct.

[69] The appellant also takes issue with the "bad character" evidence given by Brooks. This evidence, which was neither discussed nor contemplated in the judge's pre-trial ruling, was limited to two particular incidents. First, after Brooks' in-hospital suicide attempt, the appellant, while expressing his concern for her welfare, also demonstrated to her the most effective way to cut one's wrists. Second, Brooks was allowed to testify that, after she terminated her relationship with the appellant, she feared him, and that he told her both that he distinguished between friends and enemies and that he had learned how to be vindictive.

[70] The Crown on appeal conceded that this evidence cannot relate to the state of the relationship between the appellant and Ms. Weber. The issue is whether the admission of this "bad character" evidence, unaccompanied by a caution, unfairly prejudiced the appellant because the jury may have thought that the appellant's conduct showed him to be a vindictive person and, perhaps, even capable of murder.

[71] The trial Crown exacerbated this problem in her closing submissions by referring to the two pieces of "bad character" evidence when she reviewed the appellant's after-the-fact conduct. She did not, however, include that evidence when she told the jury that the circumstantial evidence was buttressed by "Mr. Wall's conduct after the fact, which points to his intent, and his guilty mind." Nonetheless, Brooks' evidence relating to the appellant's wrist slashing demonstration and his comment about vindictiveness risked prejudice: The appellant's behaviour and comments show that he is a bad person, and therefore may be guilty.

[72] Although not fatal, the defence did not object to this evidence. See R. v. Edelenbos (2004), 2004 875 (ON CA), 71 O.R. (3d) 698, [2004] O.J. No. 2810, 187 C.C.C. (3d) 465 (C.A.), at para. 19. Further, the failure of the defence to request that the jury be cautioned on its relevance does not detract from its potential prejudice. See R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5, 87 C.C.C. (3d) 289. Apparently, no objection was taken to this evidence because the defence may not have wanted to highlight it and it was seen simply as part of the evidence of the appellant's amorous relationship with Brooks.

[73] On reading Brooks' evidence as a whole, the references to these two instances of "bad character" were only fleeting. The focus of her evidence was that the appellant pursued her romantically shortly after Ms. Weber's disappearance and that, on reflection, his behaviour caused her sufficient concern that she [page800] brought it to the attention of the police. In hindsight, however, it is evident that this evidence, particularly when examined in isolation from the balance of Brook's evidence, could cause potential prejudice. This risk was heightened when the trial Crown used the evidence improperly in her closing submissions and the trial judge did not correct her in his charge.

The Proviso

[74] In these circumstances, the question arises whether a new trial is required, or whether this is an appropriate case to apply the curative proviso of s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 because this court is "of the opinion that no substantial wrong or miscarriage of justice has occurred".

[75] In my view"the evidence is so overwhelming that the verdict would inevitably have been the same had the jury been properly instructed": R. v. W. (L.K.), 1999 3791 (ON CA), [1999] O.J. No. 3575, 138 C.C.C. (3d) 449 (C.A.), at para. 95, leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 383. See also R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, 160 C.C.C. (3d) 1.

[76] As I indicated at the beginning, even though Gazley was an acknowledged and persistent liar, his evidence was amply supported by other evidence, including the appellant's motive; the discovery of the body where indicated by Gazley; the presence of garbage bags and a shovel at the site of Ms. Weber's remains; Ms. Weber's blood identified in the Jimmy truck; the appellant's access to the apartment; the appellant's knowledge of Ms. Weber's work schedule; the appellant's access to and use of the Jimmy truck and its various locations after the murder; and the blood (human or animal) in the apartment.

[77] Accordingly, assuming that the trial had proceeded without the admission of the prejudicial "bad character" evidence, it is my view that the Crown has demonstrated that the remainder of the evidence was so overwhelming that any new trial would inevitably result in the same conviction. In those circumstances, the error occasioned no substantial wrong or miscarriage of justice. The proviso applies.

Conclusion

[78] For these reasons, I would dismiss the appeal.

Appeal dismissed.