DATE: 20060504
DOCKET: C36577
COURT OF APPEAL FOR ONTARIO
LASKIN, GILLESE AND MACFARLAND JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Philip Campbell and Jonathan Dawe for the appellant
Respondent
- and -
MARLON ROWE
Renee Pomerance and Kimberley Crosbie for the respondent
Appellant
Heard: December 14, 2005
On appeal from the conviction entered by Justice Ronald G. Thomas of the Superior Court of Justice, sitting with a jury, dated December 19, 2000.
MACFARLAND J.A.:
[1] The appellant appeals his conviction for first degree murder in the shooting death of Nancy Kidd, which occurred during a violent bank robbery on January 11, 1999.
FACTS
[2] Shortly after noon on January 11, 1999, four balaclava-clad men entered the Toronto-Dominion Bank branch located at 230 Sandalwood Drive, Brampton, Ontario. At least three of the four were armed, one with a shotgun and the others with handguns. The employees and customers of the bank were ordered to lie down on the floor. Three of the bank employees, Manjinder Sihota, Connie Lowry and Joanne Wylie, were forced into the vault by one of the robbers, where they were ordered to open the compartments. All three were, to varying degrees, manhandled and physically brutalized by the robbers.
[3] Mrs. Kidd’s desk was located near the vault entrance. When the robbery began, she was seated at her desk with a customer, Ian Kosher, who was an off-duty police officer. She and Kosher lay on the floor on opposite sides of her desk with Mrs. Kidd on the side closest to the vault.
[4] There were two cameras in the bank and the robbery was recorded on video. The range of the cameras, however, did not reach the interior of the employees’ offices and the areas inside and just outside of the vault. Accordingly, the shooting of Mrs. Kidd and the violence directed against the bank personnel in the vault were not recorded on video.
[5] The robber with the shotgun was inside the vault with Wylie and Lowry, who were trying to open one of the compartments. Sihota was also inside the vault near its entrance, and a second robber was standing beside her.
[6] The third robber stood close to Mrs. Kidd and Mr. Kosher. Kosher observed that this robber’s handgun was about five and one-half inches long with a one and one-half inch barrel. He saw a brass casing in the chamber and observed that the gun was cocked. It appeared to him that the gun had live ammunition and was ready to be fired.
[7] Before Wylie and Lowry succeeded in unlocking the compartment, they heard a popping noise outside the vault, which Lowry recognized as a gunshot. Several witnesses outside the vault also heard this noise, but no one saw the shot being fired and it took place out of the field of view of the security cameras. It was subsequently determined that the shot was fired from a handgun. Only one of the robbers in the vault area was so armed.
[8] Before the shot was fired, and while Lowry was in the vault making efforts to spin her combinations to open the compartment, she testified that the robber who stood by Mrs. Kidd’s desk yelled inside to them: “they don’t think we mean business”; and “you’d better hurry up or your friend out here is going to get it.” Lowry remembers this “distinctly” and she remembered she was “spinning really fast”. About 10 or 15 seconds after that threat, when she got to the last number of the combination, she “distinctly remembers” hearing a “pop” sound. She knew it was from a gun. Shortly after the shot, Lowry heard the same voice (as she had previously heard), again from outside of the vault yelling into them: “tell them I’ve just shot their friend out here.” The robber inside the vault then “repeated or reinforced the shooter’s message” and said: “we’ve just shot your friend out there and you’re all next if you don’t hurry up.”
[9] None of Wylie, Sihota nor Kosher heard any threats uttered before the gunshot. All three heard the threat uttered after Mrs. Kidd was shot.
[10] Lowry and Wylie succeeded in opening the compartment shortly after hearing the shot but it was empty. Soon after, another teller (Sandy Chau) entered the vault and opened a safe deposit box holding about $20,000 cash. The robber with the shotgun took this money and left the vault. All four robbers then left the bank.
[11] Despite the immediate efforts of those in the bank after the robbers left, Mrs. Kidd had no vital signs en route to the hospital and was pronounced dead shortly after her arrival. The cause of her death was exsanguination secondary to a gunshot wound. On the medical evidence, Mrs. Kidd would have died within three to five minutes of being shot.
[12] On January 15th, four days after the robbery, the police found the stolen minivan used in the robbery in the underground parking garage of the apartment building where Jacqueline Thompson lived. The appellant was Thompson’s husband’s former employee, and she had known him for a few years.
[13] On the day of the robbery, the appellant came to Thompson’s apartment with his cousin, Dwayne Lawes, and two other men she did not know. While they were in her apartment, she overheard one of the men say: “the fucking lady didn’t want to open the safe”. At the beginning of her testimony at trial, Thompson attributed this statement to the appellant, but by the end of her cross-examination, she was no longer sure who said this. She asked the appellant what the comment was about, and he told her that: they were in Brampton; they robbed a bank; he shot a lady accidentally, and he hoped she did not die.
[14] When the men arrived at Thompson’s apartment, they had two gym bags with them – one small, one large. Thompson’s young son opened the small bag and, when he did, she could see that there was “crumpled up” money in it. She called two taxis for the four men and they left. Before leaving, the appellant asked Thompson if he could leave the larger bag with her and said that he would come back for it. She later looked in the bag and saw three or four jackets, masks and a “shot – tall gun” that was about three feet long. She got scared and took the bag to the appellant’s grandmother. Neither the bag nor its contents were ever recovered by the police.
[15] At trial, the Crown introduced a statement made by the appellant to Rhyll Carty, a man known to some in the Toronto Jamaican community as “Brother Tony” – a self-styled “spiritualist” and “psychic counsellor”. Carty ran a shop on Davenport Road in Toronto; the sign outside his shop read “O’Shanti’s Herbal Store – Religious Articles – Candles – Herbs”. The sign also advertised counselling services. Some in the community, including Thompson, considered Carty to be a “very religious man” with mystical powers. In the past, for example, she had consulted him about marital and family problems and explained that she “went to see him the same way other people would go see a priest”. Carty’s main business was performing “psychic” or “spiritual” readings for clients from the Caribbean community. He invented mystical rituals, based on things he had read about. While Carty himself denied practising Obeah[^1] and claimed minimal knowledge of Jamaican supernatural beliefs and traditions, the appellant’s aunt Sonia Gallimore, who was a regular client, testified it was understood within the Jamaican community that Carty was an Obeah practitioner. Carty conceded that he knew he had this reputation and did nothing to discourage it. He conceded he had no genuine spiritual powers and that he could be described as a “con man and a charlatan” because he misled his clients into believing otherwise.
[16] A few days after the appellant and his three confederates had visited Thompson (right after the robbery), she sought advice from Carty. She told him about the visit to her apartment shortly after the crime and that she had overheard the appellant tell one of the men, “the fucking woman didn’t want to open the safe”. She also relayed that the appellant told her that the four of them had committed a robbery and that he had accidentally shot a woman. She told him that the men had left a bag at her apartment, which she discovered contained a shotgun with a wooden handle.
[17] About six weeks before the robbery, the appellant and Lawes had been introduced to Carty by their aunt, Sonia Gallimore. Lawes had requested Carty’s “help … doing certain illegal activities” and told Carty that they could make him “a lot of money.” They explained to Carty that they robbed banks and wanted Carty’s protection against apprehension.
[18] A couple of weeks later, the appellant and Lawes again met with Carty at his shop on a Saturday. They told Carty then that they were going to be robbing a bank on the following Tuesday or Wednesday. At this meeting, they described their operation as “bursting in, yelling, shouting, jump over the counter, kind of creating a kind of fear, so to speak, and they do what they do”. Carty never saw any news of a robbery in that following week, and he next encountered the appellant and Lawes on the night of January 10, 1999, at Gallimore’s apartment. The two took Carty aside and told him they were planning to rob a bank in Brampton the next morning and needed some protection. Carty responded by telling them not to do anything “crazy or stupid” and that if anyone was hurt, he would turn them in to the police. It was the very next day that the robbery and murder of Mrs. Kidd took place.
[19] Carty heard about the robbery between 5 and 6 p.m. on the day of the robbery on his car radio as he drove down Highway 10. He said he was shocked but “immediately my mind rushes to what I was told the night before” and he made the link between the robbery and what the appellant and Lawes had said.
[20] Carty testified that he did not immediately go to the police, but took some time to think the situation through. He went to the police on the evening following the robbery and told police what he knew.
[21] After Carty went to the Peel police, he agreed to co-operate with the police and assist them in their investigation. As of January 13, 1999, Carty was considered to be acting as a police agent. He was paid by the police and, in addition, made a claim for the $200,000 reward money offered.
[22] Thereafter, the police obtained an authorization to intercept certain communications. Carty consented to having his phone tapped and to have video- and audio-recording equipment installed in his shop. The police wanted him to set up a meeting with the perpetrators, and he agreed to do so.
[23] On January 16, 1999, at 4:19 p.m., the appellant, in response to an earlier call from Carty, contacted Carty and asked if it was safe for him to leave the country. Carty insisted the appellant come and meet him at the store later that evening. The appellant agreed to do so.
[24] During this conversation, recorded by police, it was learned that Lawes (or “Champ” as he was known), and one of the other robbers had already left the city. Only the appellant and Dain Campbell remained, and both were to meet Carty at his shop at 6:30 p.m. Carty asked the appellant during this conversation if Campbell “[believed] in the things I do” and was assured by the appellant that he did. Both were instructed to place an egg in a black sock and knot the sock twice and bring the socks with them to the meeting. The appellant was instructed not to wear anything black.
[25] Carty met privately with each, first with the appellant and thereafter with Campbell. It is important to note that the first contact between Carty and the appellant after the robbery was initiated by Carty and not the appellant.
[26] He explained to both that in order for him to help them, they would each have to relate to him a detailed account of the robbery events. In doing so, the appellant admitted the robbery, gave the names of the other three participants and said that he had accidentally shot Nancy Kidd.
[27] Carty began his interview with the appellant by telling him that he was willing to help him because the appellant looked like his son. He said he could help the appellant but it was going to cost him because he (Carty) had “to pay a few people still”. Carty took some money from the appellant and told him that he could pay the rest later. When the appellant told Carty that Champ had three thousand dollars for him, Carty responded that he wanted his money because he had earned it.
[28] The appellant told Carty they had used a shotgun and a handgun. He stated: “I just climbed in there. I saw this woman. So I grabbed her … I cocked it and the bullet flew out. I didn’t even know that the safety was off at the time. Then boom the bullet in her in the chest. I got frightened, then boom it was the woman that got killed, I grabbed her and … the gun went boom boom and the woman got killed.” He told Carty he planned to go to Maryland where he had an aunt living. At the conclusion of the interview Carty reminded the appellant that his was not a free business and that he appellant had to pay him money along the way. Some money was placed on the table by the appellant and Carty told him to put a candle on top of it.
[29] After the appellant met with Carty, Dain Campbell met with Carty. During that meeting Campbell asked Carty if he thought he could work again, continuing to rob banks – Carty responded “Yes man, it can happen. Yes, but it will only work if you know that you have to take care of me.”
ISSUES
[30] The appellant raised a number of grounds of appeal. The Crown was called upon to respond to only two of those grounds, namely: the admissibility of the appellant’s statement to Carty on January 16, 1999; and the trial judge’s treatment of Dr. Henry’s evidence in his charge to the jury. Dr. Henry was an expert witness in Caribbean religions, whose written report, originally commissioned by Crown counsel, was filed on the voir dire by the defence and who was called as a defence witness at trial.
- The Statement of the Appellant to Rhyll Carty
[31] The appellant’s position at trial was that his statement to Carty was inadmissible on the basis that it was the product of a “dirty trick”, that it violated s. 2 of the Charter, and that the communication should be protected by religious privilege.
[32] In support of this application, the defence called three expert witnesses on the voir dire to testify and filed the written report of a fourth about their perception and characterization of the recorded interview. Importantly, the appellant did not testify on the voir dire.
i) Father Lynch
[33] Father Thomas Lynch, a Catholic priest and professor of theology at the University of Toronto, testified as an expert in Roman Catholic practices. He described the purpose of the Catholic and Orthodox confessional as a means of helping people overcome their errors by forgiving their sins.
[34] Father Lynch opined that the gestures and rituals Carty performed during his meeting with the appellant suggested a syncretistic religious rite of “undoing” the appellant’s actions, involving “a kind of forgiveness of it”. The presence of symbolic items in the room likened it to a small church or chapel. In his opinion, had Carty and the appellant been Catholics, the confessional seal would have applied to the meeting.
[35] In cross-examination, he agreed certain aspects of the meeting did not possess characteristics akin to a Catholic confessional. As set out in the respondent’s factum, these included:
(a) A Roman Catholic Priest would not offer a citizen protection against arrest for past crimes – the notion of sanctuary was struck down in the middle ages.
(b) Similarly, a priest would not offer protection for future crimes. As put by Father Lynch: “You can never counsel someone to do evil”.
(c) It would fall outside of the usual mandate of a religious priest to counsel or assist a person seeking to flee the jurisdiction after the commission of a crime.
(d) “It goes without saying” that a priest could not rightly or knowingly take possession of the proceeds of crime.
(e) A Catholic priest is not allowed to charge a fee for sacrament. This practice, known as “simony” has been against church law since approximately 1215.
(f) There were few if any signs of “penance” on the tape. Carty did not provide moral guidance to the appellant or advice on how he might make his life better.
(g) The tape disclosed no articulable prayer or appeal to a deity,
(h) The encounter was lacking in the appropriate degree of solemnity that would ordinarily characterize a Catholic confessional.
(i) If the purpose of an encounter was to facilitate future crimes, further the appellant’s “career” as an armed robber, or assist with flight from the jurisdiction, this would generally be seen as an insincere confession.
(j) The encounter between the appellant and Carty was marked by a large secular component.
(k) The Church seeks to protect penitents who are truly seeking forgiveness for their sins. It does not wish to enshrine or protect criminals who are seeking to avoid the consequences of their actions.
ii) Dr. Khan
[36] Dr. Abrahim Khan is a professor of religious studies at the University of Toronto, and he testified as an expert in religious studies with particular emphasis on Caribbean religions. Dr. Khan was of the view that Carty was purporting to practice a form of religion during his meeting with the appellant.
[37] During cross-examination, Dr. Khan was confronted with that part of the meeting where Carty gave advice to the appellant on when to flee the jurisdiction. He was willing to acknowledge only that the exchange “can suggest many things”, one of which might be an offer to protect the client from the police. He stated that his opinion would not be altered by the knowledge that, weeks earlier, the appellant had proposed to the religious advisor that he could make a lot of money if he helped the appellant carry out illegal activities without detection. He conceded that he was unaware of any religion anywhere that would either encourage its members to participate in armed robberies or that would knowingly take a cut of the proceeds of an armed robbery.
iii) Dr. Case
[38] Dr. Frederick Case also testified as an expert in African and Caribbean religions. He said that many of Carty’s actions in the January 16th meeting with the appellant were consistent with Obeah practices, but that others resembled “not so good theatre”. And as he put it:
I would say in terms of whether it was a genuine Obeah session or not from what I saw, if the clients were sufficiently aware of the kind of things that are done commonly in Obeah, they might well be taken in by it.
And later:
It seems to me that the client and the individual that I saw just now believed in what he was going through. I didn’t see any evidence in that, in that tape that the client was reluctant, holding back or just simply antagonistic to what was happening.
[39] It was, he said, important for clients to be truthful with the practitioner lest the practitioner be led “off into a direction that is not warranted, and therefore the effect of what he’s trying to do would not be as great as if he had been told the truth.” Clients generally expect the consultation to remain confidential.
[40] In cross-examination, Dr. Case acknowledged the discussion about robbing banks and providing a percentage of the proceeds to the religious advisor was “outrageous”, “totally profane” and “totally out of bounds”. He agreed there was nothing on the tape which suggested the client was expressing remorse or a desire to be forgiven for the robbery. Indeed, he agreed with Crown counsel’s suggestion that the whole process (recorded on the tape) might have given the client more confidence to go out and rob banks which, he agreed, would outrage most legitimate Obeah practitioners.
iv) Dr. Henry
[41] Dr. Frances Henry is a professor emeritus of anthropology at York University.
[42] Her evidence was provided by way of her written report originally commissioned by Crown counsel but filed by the defence on the voir dire. Her opinion was based entirely on the content of the four video tapes provided to her by the investigating police officers. She had no direct contact with Carty, Rowe or Campbell. She noted particularly that the relationship between Obeah practitioners and their clients is one of trust.
[43] She concluded:
These videos do not contain many ritual behaviours but what can be seen are consistent with the belief and practice of Obeah. I am of the opinion that Mr. Carty did use some real Obeah practices such as the lavish use of oil and water in his encounters with the two men. As well, he gives them sufficient explanation as to how he can help them by ‘reversing’ bad influences around them. He even suggests that he can supply them with physical help in getting out of the country but his primary assistance comes about as a result of his special relationship with supernatural forces. Also evident is a relationship between client and practitioner based on trust, confidentiality and above all, faith in the efficacy of this belief system. All of these factors suggest to me that what happens on these videos, even if ‘staged’ can be interpreted as a form of behaviour that attempts to relate the natural and supernatural worlds.
v) Ruling
[44] In ruling the statement to be admissible, the trial judge made a number of important factual findings:
(a) Although Carty was acting as a state agent at the time of the interceptions on January 16, 1999, Rowe and Campbell were not under the control of the state because they were not detained.
(b) At the time they enlisted the assistance of Carty, the police acted in good faith and did not engage in misconduct.
(c) The appellant’s purpose in meeting with Carty was to obtain his continuing protection to avoid being arrested by police and to seek advice on how and when to flee the country,
(d) The purpose of the meeting was not pastoral counselling or repentance.
(e) The relationship between the appellant and Carty was a corrupt criminal relationship, not a legitimate relationship between a religious practitioner and a penitent.
(f) The communications that were intercepted were criminal in nature and intended to facilitate criminal activities.
(g) During the meeting, the appellant and Campbell demonstrated no intention to repent and/or change their criminal behaviour. To the contrary, Campbell wanted to know if he could continue robbing banks.
vi) Analysis
[45] In my view, the trial judge’s factual findings are amply supported by the evidentiary record, and there is no basis upon which this court could or should interfere with them.
[46] The trial judge concluded that the measures used by the police in intercepting the communications between the appellant and Carty would not shock the conscience of the community and did not amount to a “dirty trick”.
[47] The appellant relies on the judgment of Lamer J. (as he then was) in Rothman v. The Queen (1981), 59 C.C.C. (2d) 30 (S.C.C.). In Rothman, the accused had been arrested on a charge of possession of narcotics for the purpose of trafficking; and he refused to give a statement. He was then put in a cell at the police station. Soon after, a police officer dressed in old clothes was placed in the same cell. The accused told the officer that he thought he was a “narc” but the officer told him he was a fisherman who had been arrested for failing to pay a traffic ticket. The accused then engaged in conversation with the officer and made several inculpatory statements. The trial judge found that the officer was a person in authority, and he excluded the statements since the use of the disguise was an improper way of eliciting the statements. The accused was acquitted, the Crown offering no further evidence. The Crown’s appeal to this court was allowed and a new trial was ordered. The accused’s further appeal to the Supreme Court of Canada was dismissed.
[48] Justice Lamer wrote at pp. 73-75:
Therefore, the rules regarding the admissibility of statements by an accused to persons in authority may be enunciated in the following manner.
A statement made by the accused to a person in authority is inadmissible if tendered by the prosecution in a criminal proceeding unless the Judge is satisfied beyond a reasonable doubt that nothing said or done by any person in authority could have induced the accused to make a statement which was or might be untrue;
A statement made by the accused to a person in authority and tendered by the prosecution in a criminal proceeding against him, though elicited under circumstances which would not render it inadmissible, shall nevertheless be excluded if its use in the proceedings would, as a result of what was said or done by any person in authority in eliciting the statement, bring the administration of justice into disrepute.
I would emphasize that under the above-mentioned second rule the Judge is not exercising a pure discretion to exclude, as is the case under s. 178.16(2) of the Criminal Code, and that his finding is to be dealt with in appeal as any other finding, subject to the differences and limits of the Appeal Court’s jurisdiction as defined by s. 603 [am. 1974-75-76, c. 105, s. 13] and s. 605 [am. 1974-75-76, c.105, s. 15] of the Criminal Code.
I hasten to say also that, if the second portion of the rule is not a true discretion, it is even less a blanket discretion given Judges to repudiate through an exclusionary rule any conduct on the part of the authorities a given Judge might consider somewhat unfortunate, distasteful, or inappropriate. There first must be a clear connection between the obtaining of the statement and the conduct; furthermore that conduct must be so shocking as to justify the judicial branch of the criminal justice system in feeling that, short of disassociating itself from such conduct through rejection of the statement, its reputation and, as a result, that of the whole criminal justice system, would be brought into disrepute.
The Judge, in determining whether under the circumstances the use of the statement in the proceedings would bring the administration of justice into disrepute, should consider all of the circumstances of the proceedings, the manner in which the statement was obtained, the degree to which there was a breach of social values, the seriousness of the charge, the effect the exclusion would have on the result of the proceedings. It must also be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community. That a police officer pretend to be a lock-up chaplain and hear a suspect’s confession is conduct that shocks the community; so is pretending to be the duty legal- aid lawyer eliciting in that way incriminating statements from suspects or accused; injecting pentothal into a diabetic suspect pretending it is his daily shot of insulin and using his statement in evidence would also shock the community; but generally speaking, pretending to be a hard drug addict to break a drug ring would not shock the community; nor would, as in this case, pretending to be a truck driver to secure the conviction of a trafficker; in fact, what would shock the community would be preventing the police from resorting to such a trick.
[49] More recently, the law in this area was summarized by this court in R. v. Miller (1991), 68 C.C.C. (3d) 517 at 525:
Accordingly, evidence procured by means of a mere “trick” will be admissible, whereas evidence obtained by means of a “dirty trick” will not be admissible (citations omitted).
[50] The sole issue for determination is whether the trick employed here was a “dirty” trick within the meaning of Rothman and the subsequent cases. The trial judge ruled that it was not and, for the following reasons, I agree with him.
[51] The appellant was not in custody nor had he been charged at the time he made his statement to Carty. Indeed, until Carty went to the police with his information, the police had very little to go on. They knew that there were four perpetrators who spoke with Jamaican accents. They knew all four perpetrators were masked during the robbery and that no one could identify them. They had been given contradictory information about the general height and build of the perpetrators.
[52] As indicated earlier, this was a particularly brutal and savage robbery. The employees of the bank were physically dragged from one location to another, kicked, shoved and struck with the butt of a gun. Mrs. Kidd was shot and killed.
[53] The appellant’s statement to Carty that he was one of the four perpetrators of the robbery and the one who shot Mrs. Kidd was a key piece of evidence in the prosecution. It was corroborated by the evidence of Thompson in all material aspects.
[54] The appellant relies heavily on one example of a “dirty trick” that is provided by Lamer J. in Rothman: a police officer posing as a lock-up chaplain and hearing a suspect’s confession would shock the conscience of the community.
[55] In my view, there is a very important and key difference between this case and that example.
[56] The example cited in Rothman presumes the sincerity of the religious belief of the penitent: who invokes the confessional after demonstrating, as Father Lynch put it on the voir dire, “expressed or implicit intention … to enter into confession”. The use of the confessional as a means of helping people overcome their errors by forgiving their sins has no application to the facts of this case.
[57] There is no direct evidence of what, if any, religious beliefs the appellant had or has. He did not testify on the voir dire.
[58] He did not approach Carty after the robbery. Carty called the appellant after he (Carty) agreed to help the police. The only approach the appellant made to Carty took place before the robbery when he sought Carty’s assistance to avoid police detection and apprehension in his chosen life’s work – bank robbery. This was the only purpose evident in the video recording following the robbery. It is clear from the tape that the appellant’s sole interest in meeting with Carty was to get his assistance in getting out of town and avoiding police apprehension.
[59] Of all of the so-called “ritualism” emanating from Carty, there is nothing in the appellant’s conduct to suggest that he, in any way, embraces the purported “beliefs” of Carty. There is not even conduct on the appellant’s part from which it might be inferred that he adhered to the religious beliefs of Carty, other than the opinions expressed by the expert witnesses in this regard. He merely followed Carty’s instruction as he was directed to do. There is no evidence that he approached Carty in any religious sense. His only association had a marked secular purpose that was criminal in nature. The entire basis of the relationship was corrupt.
[60] The only clear inference to be drawn from the evidence is that the appellant met with Carty for the express purpose of evading detection by the police and to facilitate flight from the jurisdiction.
[61] As the trial judge put the Crown’s position to the jury in his charge:
Rowe does not go to Carty for any religious purpose such as forgiveness for sinning. Rowe did not confess to any sin. There is no repentance. Carty’s premises are not a church. Rowe does not ask for absolution, he does not ask for forgiveness, he does not ask for spiritual cleansing. He does not even say he is sorry. This is not a religious experience at all.
The defence has stretched the evidence past the breaking point when counsel suggested Rowe was communicating with his God during the meeting. Money, escape and protection are what was on Rowe’s mind.
[62] In my view, the community would be shocked if this evidence were excluded and not the contrary.
[63] I would dismiss this ground of appeal.
- Instruction on Dr. Henry’s Evidence
[64] The Crown originally commissioned a report from York University professor emeritus Dr. Frances Henry on Obeah practices. The report was, at the request of the defence, made an exhibit on the voir dire. At trial, following the trial judge’s decision to admit the appellant’s statement to Carty, the defence called Dr. Henry as its own expert in Obeah. The position of the defence was that the appellant believed Carty possessed supernatural powers and, therefore, the appellant would have been truthful with him, particularly, when telling Carty that his gun fired accidentally. In chief, defence counsel asked:
Q. Is it necessary, in terms of the belief system of Obeah, for the practitioner to help the petitioner, that the petitioner be truthful with the practitioner?
A. Absolutely. The client when he or she comes to a practitioner has to be totally honest and open otherwise the ritual that the practitioner prescribes will not work. Not only will it not work but the client could, in theory, go back to the practitioner and say, look, whatever it is you prescribed for me didn’t work, and the practitioner said, well, maybe you weren’t truthful with me. So the chances are almost 100 percent that an individual will be absolutely truthful to an Obeah practitioner.
[65] In cross-examination, Crown counsel asked Dr. Henry whether she would “go the whole distance then and say that Marlon Rowe was truthful on the tape”. Her response was:
Well, all I can say is that my assessment of what I have seen on the tape is that I believe he is truthful, insofar as I believe any person who confesses … extremely negative things to an Obeah practitioner as being truthful.
[66] The appellant’s complaint in relation to the trial judge’s charge to the jury in respect to Dr. Henry’s evidence is set out in his factum as follows:
The trial judge castigated Dr. Henry repeatedly during his jury instructions for improperly usurping the jury’s fact-finding function, returning to this point on three separate occasions in his charge. Early on, during an overview of the law of opinion evidence, he stated:
… Frances Henry had no business coming in here and stepping into your area and attempting to usurp your function to determine what is the truth. So I am going to go over it in fairness, but she had absolutely no business. She got her Ph.D. in 1958. She knows better and she should not have done it.
Later in his charge, after summarizing Dr. Henry’s evidence-in-chief, the trial judge read a verbatim transcript of virtually the entire Crown cross-examination, interspersed with his own comments. After reading Dr. Henry’s evidence that she “put [the Appellant] in the category of a believer [in Obeah] because he went to see a practitioner for this particular purpose”, the trial judge remarked:
Here is another assumption that she has made. She has just referred to it. He went to see a practitioner for this particular purpose. She put him in the category of believer because he went there for that purpose. Now, where would you get that from? Did you hear anything about that? Another assumption. This woman was off the track, off the wall.
A short while later, he read the following exchange from the transcript:
Q: Don’t you think it would be nice to know what happened inside the bank before pronouncing on whether or not this confession was true?
A. I’m afraid I can’t answer that. I don’t understand the relationship between the two of them.
The trial judge then commented:
“I don’t understand the relationship between the two of them.” What a curious answer. Now, that is my opinion. You do not have to pay attention to it, but a very curious answer coming from a well-educated woman.
The trial judge continued reading the Crown’s cross-examination, until he came to an exchange where the Crown had suggested that Carty was a “criminal” because he had asked for money that he knew was the proceeds of crime, and Dr. Henry had replied:
A. Yes, [Carty] may very well be a criminal but all I was asked to do was judge whether or not he was practising Obeah and whether he was a practitioner.
This prompted the following comment from the trial judge:
That is what she was asked to do. You will ask yourself, where did she go? Did she go from the North to the South Pole?
[67] There can be no doubt that the trial judge’s forceful comments in relation to Dr. Henry’s evidence were ill-advised and unfortunate. Indeed, it appears from his charge that even the trial judge recognized that he had gone too far. When his charge continued after the luncheon break, the trial judge revisited the issue of Dr. Henry’s evidence in the following terms:
Ladies and gentlemen, before we broke for the lunch period, I had reviewed the defence evidence and I dealt with the evidence of Dr. Henry.
Now, it is important that you realize that I went over that testimony and gave you a thorough thumbnail outline of the role of experts in a trial for a reason. I read at length from the questions that were asked by Mr. Midanik and in the cross-examination, because you will understand that no one here, Mr. Sherriff or myself, are suggesting that Mr. Midanik caused this problem and Mr. Sherriff fairly, in his jury address or in comments about it, indicated that he was not suggesting that at all. So I want to make it clear to you that there is no suggestion by me or by Crown counsel that this was intentional. All Mr. Midanik asked was a fairly straightforward question: was the truth an important feature in Obeah? And the answer he got was developed. It was important for you to know that is all he asked, is it important that the petitioner be truthful with the practitioner? And what developed thereafter was what I dealt with, but there is no suggestion that Mr. Midanik did this intentionally or caused it. All he asked was a simple question and the best evidence of that is that, in his jury address—which I am about to deal with now—he simply told you her opinion is inadmissible. I believe he said that it is your job to determine if he was being truthful or if you have a doubt about it, but he told you that her opinion was inadmissible. He made very little use of her testimony. Mr. Sherriff suggested, after dealing with her testimony, that you probably should place very little weight, if any, on any of her evidence and he is entitled to do that. I am not suggesting that to you because I told you before you can select from testimony of a witness what you believe or what you do not believe or you choose to not act upon for whatever reason. That is your role. Mr. Midanik only made reference to her evidence when he was talking about the practice of Obeah and the various features of it. He was attempting to demonstrate for you that in fact his client, Mr. Rowe, believed that Carty was practising Obeah. Mr. Midanik goes further to say that he was, but even if he was not and only pretending to be, his client thought he was and that is an important part of the defence. But, I want to make it clear that it is up to you to use what part of the testimony of Dr. Henry appeals to you. That is your role, but I also should make it quite clear—and to be fair to Mr. Midanik and to Mr. Rowe—that there certainly was no intention of suggesting that this was deliberately caused or in any way should be taken into serious account when you are examining the defence. But you see, in the adversarial system when you call a witness, you call that witness for good or for bad and so that is one of the risks when you are counsel; but I am suggesting to you that you recognize that she was only called as an expert to deal within the field of Obeah and the various concepts that are involved and she straightened that out near the end, but there was quite a flurry in between. She went, in my opinion, far too far. I have made that clear to you. I do not want you to in any way take that as any adverse inference against Mr. Midanik or his client. That happened and it may very well be that Mr. Midanik was surprised by that, I do not know; but I think, in fairness, you should look at it and perhaps decide what weight you will put on her testimony in the context of the manner in which she testified. Did she go too far, was she too zealous and that sort of thing; and decide what weight you will put on. I do not think it should be blown out of proportion from the point of view of the overall defence of Mr. Rowe.
[68] In my view, the trial judge was correct to instruct the jury to disregard Dr. Henry’s evidence that, in her opinion, the appellant was being truthful with Carty during their meeting. In this respect, clearly her evidence usurped the function of the jury and called for a clear warning from the trial judge.
[69] While trial counsel for the defence in his closing address told the jury that Dr. Henry’s opinion in this respect was inadmissible, it was not sufficient, in my view for the trial judge to leave it at that. The jury are told to take the law from the judge and, in my view, this was important evidence which the trial judge was required to address. It was his function to state clearly for the jury what use they could and could not make of it.
[70] Unfortunately, his remarks went well beyond what was required. His personal attack on the witness’s integrity was uncalled for. While Dr. Henry possesses impressive and extensive credentials in her area of expertise, she is the equivalent of a layperson, however, in terms of the admissibility of evidence. The evidence, which motivated the trial judge’s rebuke, was elicited by Crown counsel in cross-examination. She was asked by Crown counsel whether in this case she would “… go the whole distance and say that Marlon Rowe was truthful on the tape …” to which she responded that from what she had seen on the tape she believed he was being truthful. In so doing she merely responded to the questions put to her and, as such, was quite undeserving of the castigation she received in the trial judge’s charge. It would have been sufficient for the trial judge to point out that it was not for Dr. Henry to express an opinion on who was being truthful, that this is the sole function for the jury, and that they must ignore her evidence in this respect. Because the entire defence (once the statement to Carty was admitted) was that the shooting was accidental, it was particularly important for the trial judge to exercise caution in his remarks.
[71] Dr. Henry’s evidence, along with that of Dr. Case, was of vital importance to the defence. Essentially, that evidence was that, from their observations of the tapes: Carty was practising Obeah; that the appellant appeared to believe in Obeah; and it was important for the believer to be truthful with the practitioner or else there would be, in effect, no benefit to the believer. The appellant told Carty that the shooting was accidental. If the jury accepted that the appellant was truthful when he made this statement, or even that it raised a reasonable doubt in that regard, the jury would have been obliged to acquit him of the murder charge.
[72] I am satisfied, however, that the trial judge’s remarks after the luncheon recess went a long way to ameliorating his criticisms of Dr. Henry.
[73] Importantly, the trial judge stressed that while Dr. Henry had overstepped her bounds, this was neither the fault of nor contemplated by defence counsel. As the trial judge noted:
She went, in my opinion, far too far. I have made that clear to you. I do not want you to in any way take that as any adverse inference against Mr. Midanik or his client.
[74] In addition, the defence also had the benefit of Dr. Case’s evidence, which was essentially the same as Dr. Henry’s, namely that, from his observations: Carty was practising Obeah; the appellant appeared to be a believer; and it was of the utmost importance for the believer to be truthful with the practitioner. In his charge to the jury the trial judge referred to Dr. Case’s evidence in some detail including Dr. Case’s expert opinion that “it would be impossible for a practitioner to help a client if the client does not tell the truth.” The trial judge’s fair and detailed treatment of Dr. Case’s evidence, which was so similar to that of Dr. Henry, was an effective antidote to the denigration of Dr. Henry. Ultimately the defence position in relation to the expert evidence was fairly put to the jury. The defence also had the non-expert evidence of Thompson, who reported that the appellant had told her on the very day of the killing and robbery that he had “accidentally” shot Mrs. Kidd and that he was remorseful.
[75] The importance of the appellant’s belief in Carty and whether he was truthful in everything he said to Carty was also brought home for the jury in the recharge:
Now, there is one point that I actually had clearly intended to tell you and I did not; and I slipped up for sure, but it is a point that should have been made in the context just like any other point. When you are considering the position of the defence and the question of whether the Crown has proved beyond a reasonable doubt that the shooting was not an accident and you are looking at Mr. Rowe talking to Carty … you should realize that the fact that the accused man might have been there for the purpose of getting protection for escape, the fact that it even could be a conversation that has criminal connotations and could be described as a criminal conversation, does not mean that he did not believe in Carty. It is Mr. Rowe’s belief system at the time. When he was talking to Mr. Carty, was he such a believer of Obeah—believing in the experience from what you viewed on the tape—that he would be telling the truth to Mr. Carty? The fact that there might have been criminal implications or he might be devising a plan to escape or protection to assist him to escape within the Obeah spiritual world does not matter. What you are looking at is, does what Mr. Rowe told Mr. Carty raise a reasonable doubt in your mind as to whether or not the shooting was intentional? Was Rowe telling the truth to Carty or are you left in a state of reasonable doubt about that? The fact that they are talking about escape or when it is safe to leave, money and all of these other things is not prohibitive or is not determinative of the issue; and that is, was Rowe telling the truth or are you left in a state of reasonable doubt as to whether he was telling the truth and therefore left in a state of reasonable doubt on the question of whether the shooting was accidental? Knowing that the Crown must prove that the shooting was not an accident.
Now, there is one other point in connection with this. You remember how Mr. Midanik sort of apologized, but went through—and carefully—how the 25 areas mentioned in the statement are confirmed by other evidence. He went through it and showed you. I did not list all 25 like Champs going to Jamaica and on and on. The point of doing that was to show you that he was telling the truth. It can be independently established by other evidence—and it was—that, on 25 points in this session, he was telling the truth to Carty. Therefore, why wouldn’t he be telling him the truth about how the shooting occurred? That is the point of that. I did not go through all 25 and I do not intend to. You will remember when he did and you have got the transcript, you will be looking at the tape and you will be able to remember, from your recollection of the evidence, the items in the statement that were proved by other evidence in the case to be reliable and trustworthy. That was the point of that.
[76] In conclusion, I am satisfied that at the end of the day, the jury understood clearly the position of the defence and that, ultimately, it was put fairly to them by the trial judge.
[77] While it would have been preferable had the trial judge addressed the difficulty with Dr. Henry’s evidence in less forceful terms, in all of the circumstances, I am not persuaded that the defence was either denigrated or devalued by his comments such that the trial was rendered unfair. I would give no effect to this ground of appeal.
- Other Grounds of Appeal Raised
[78] As I indicated, the appellant raised a number of other grounds of appeal. The court did not call on the Crown to deal with any of them.
i) Refusal to Permit the Defence to Question Prospective Jurors about Religion and “Witchcraft”
[79] Before the jury was selected, the appellant applied to challenge prospective jurors for cause pursuant to section 638(1)(b) of the Criminal Code. One of the proposed questions (the form of which was agreed to by the Crown) read:
There is evidence in this case which involved the defendant participating in witchcraft or the occult or its mixture with organized religion including Christianity. Knowing that, would you be able to judge this case without bias, prejudice or partiality?
[80] The trial judge disallowed this question and properly so in my view. Here, the defence did not meet its burden of showing an “air of reality” to its assertion that the appellant’s apparent or professed belief in Obeah had the realistic potential or possibility for partiality against him. There was no evidentiary foundation for the assertion, nor was there any reasonable basis upon which to take judicial notice of what was asserted. I would dismiss this ground of appeal.
ii) Instructions to the Triers on the Challenge for Cause
[81] As this court noted in R. v. McLean (2002), 170 C.C.C. (3d) 330 at 333, trial judges have a wide discretion in matters involving the challenge for cause process and, as such, “a highly rigid, technical approach” in assessing the adequacy of instructions given to the triers should be avoided. Instead, the correct approach is to consider whether, “viewed in their entirety, the instructions provided [the triers] with an adequate understanding of the nature of their task and the procedure they were to follow in order to select an impartial jury”. In R. v. Brown (2005), 194 C.C.C. (3d) 76 at 85 Simmons J.A. of this court noted:
[T]he fact that a trial judge may not have recited the precise words used in Hubbert, or may have omitted one or more of its recommended elements, does not necessarily give rise to reversible error. Rather, the issue to be determined is whether the circumstances of the particular case reveal a reasonable likelihood that the triers misunderstood the nature of their task and the procedure they were to follow.
[82] While the trial judge did not instruct the triers that they were to determine whether a prospective juror was indifferent between the accused and the Crown on the balance of probabilities and that they could retire to the jury room to deliberate if necessary, when his instructions are reviewed in their entire context, I am not persuaded that there is any real likelihood that they misunderstood their task, the procedure they were to follow, or the importance of the process in which they were engaged. I would give no effect to this ground of appeal.
iii) Instruction on the Evidentiary Value of Threats Uttered By Other Robbers
[83] The appellant acknowledges that the trial judge correctly directed the jury that utterances made in furtherance of the robbery were admissible against the appellant. The complaint here, not the subject of an objection at trial, is that the trial judge erred in failing to tell the jury that the utterances of other robbers had “absolutely no probative value as evidence of whether or not the appellant had fired his gun accidentally”. In essence, the complaint is that the co-conspirators’ utterances had no probative value on the issue of intent.
[84] I accept the Crown’s submission in response to this complaint that the defence of accident had to be considered within the context of the robbery as a whole and, most importantly, the events that occurred immediately before and after the shooting. Further, while the weight to be attached to the evidence was for the jury to determine, a “no probative value” instruction would, in the circumstances of this case, have amounted to reversible error. I would dismiss this ground of appeal.
iv) Misstatements of the Evidence in the Jury Charge
[85] The appellant complains that, when reviewing the evidence bearing on the issue of intent, the trial judge erroneously told the jury that Sihota and Wylie confirmed Lowry’s evidence about the threats uttered by the robber outside the vault (presumably the appellant) after the shooting. It is the appellant’s position that these witnesses, in reality, contradicted Lowry’s evidence and that, in telling the jury they corroborated her evidence, the trial judge erred in law.
[86] In my view, it is clear from a reading of this section of the charge as a whole, that the trial judge made it perfectly clear to the jurors that Lowry was the only one who heard the threat uttered by the appellant before the shot was fired and the only one who heard the appellant say, immediately after the shot was fired: “tell them I’ve just shot their friend out here”.
[87] The trial judge did not tell the jury that Sihota and Wiley actually heard the utterances made by the appellant from outside the vault. It is clear that the only utterances they heard were from inside the vault. I accept the Crown’s submission on this point that the effect of their evidence was to confirm that a message had been relayed from one robber to the other and then passed on to the captives. There was no misstatement of the evidence, and I would dismiss this ground of appeal.
v) Instruction on First Degree Murder and Forcible Confinement
[88] The appellant accepts the Crown’s position that in view of this court’s decision in R. v. Kimberley (2001), 157 C.C.C. (3d) 129, leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 29 the jury would have had to conclude, in the circumstances of this case, that the appellant was guilty of first degree murder, and any challenge advanced against the trial judge’s charge could not prevail. I agree. This ground was advanced principally to preserve the right of the appellant to advance it in the event of further appeal to the Supreme Court of Canada.
CONCLUSION
[89] For these reasons, I would dismiss the appeal.
RELEASED: May 4, 2006 “JL”
“J. MacFarland J.A.”
“I agree John Laskin J.A.”
“I agree E.E. Gillese J.A.”
[^1]: OBEAH is a form of spirituality or religion practised throughout the Caribbean, likened by some to witchcraft and/or black magic.