W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order* restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:

(a) any of the following offences:

(i) offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

*The order mentioned was made in relation to the identity of one witness who was not referred to in these reasons. (2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

CITATION: R. v. Randall, 2007 ONCA 40

DATE: 20070125

DOCKET: C39681

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – JAMES ROBERT VERNON RANDALL (Appellant)

BEFORE:

CATZMAN, MACPHERSON and GILLESE JJ.A.

COUNSEL:

Joseph Di Luca and J. Scott Cowan

for the appellant

Shawn Porter

for the respondent

HEARD:

January 23, 2007

On appeal from the conviction entered on February 14, 2003 by Justice Terrance P. O’Connor of the Superior Court of Justice, sitting with a jury.

E N D O R S E M E N T

[1] The appellant, James Randall, was tried by Justice Terrance O’Connor, sitting with a jury. On February 14, 2004, he was convicted of first degree murder in relation to the death of his common law partner, Jennifer Zumach, and sentenced to life imprisonment.

[2] The appellant appeals from his conviction on three grounds: (1) the trial judge erred by failing to give a limiting instruction with respect to one aspect of the testimony of the witness Sylvia Girolamo; (2) the trial judge’s limiting instruction relating to the testimony of an expert witness, Dr. Toby Rose, was inadequate; and (3) the jury’s verdict of first degree murder was unreasonable because there was insufficient evidence of planning and deliberation.

[3] The appellant asks that this court quash his conviction for first degree murder and order a new trial on a charge of second degree murder. In the alternative, he requests that a new trial be ordered on a charge of first degree murder.

(1) Sylvia Girolamo’s testimony

[4] The appellant contends that Sylvia Girolamo’s testimony that the appellant told her on January 19, 1999 that Ms. Zumach had been missing since Friday or “somewhere between the 9th, 12th “and “it was probably Monday, the 11th” was clearly inaccurate (in her statement to the police on January 19 she said that her conversation with the appellant took place “last Friday” which would have been January 15) and therefore should have attracted a limiting instruction from the trial judge.

[5] We disagree. Ms. Girolamo’s testimony about both the actual date and the day of the week was, on its face, confusing. Defence counsel chose not to cross‑examine her on this point. Later, when he expressed concern about the possible confusion he was told he could recall Ms. Girolamo; he chose not to do so. The Crown’s reference to Ms. Girolamo’s testimony in her closing address was brief and included the comment “You may well think that Ms. Girolamo was just, is just wrong on her timing of events.” Defence counsel said nothing about this issue in his closing address. The trial judge showed a draft of his jury charge to counsel. He proposed to say nothing about Ms. Girolamo’s testimony. Defence counsel did not object. Crown counsel did request a reference to Ms. Girolamo’s testimony; the trial judge did not accede to the request. Finally, there was a good deal of evidence that Ms. Zumach was alive on the weekend of January 9‑10 and some evidence that she was alive as late as January 13.

[6] Combining these factors, we can see no error in the trial judge’s decision to say nothing about the component of Ms. Girolamo’s testimony relating to the date of her conversation with the appellant. This is especially so in light of the fact that trial judges, who are on the front line in difficult criminal trials, are entitled to “considerable latitude in fashioning a jury charge that is appropriate to the particular circumstances of the case”: R. v. Mahalingan, 2006 CanLII 12957 (ON CA), [2006] O.J. No. 1619 at para. 15 (C.A.).

(2) Dr. Toby Rose’s testimony

[7] Dr. Rose, a forensic pathologist, testified for the Crown. During her examination-in-chief, she testified that, in her opinion, the cause of death was a “blunt force head injury”, caused by “being struck in the head by a hammer”. However, she noted that there was no way to determine medically whether the skull fracture that she observed during the autopsy occurred before or after death.

[8] During cross-examination, Dr. Rose admitted that “one of the reasons” she concluded the skull fracture occurred before death was the fact that the appellant had attempted to cover up and hide the body. Later, she agreed with defence counsel’s statement that it was the “only” reason. When asked, Dr. Rose admitted that she had no expertise in forensic psychiatry or human behaviour.

[9] The trial judge’s charge to the jury with respect to Dr. Rose’s evidence was as follows:

Although she acknowledged the depressed fracture could have been caused after death, she said it was more likely caused before death because Mr. Randall’s conduct of hiding the body supports this conclusion. Innocent people who kill someone accidentally would not hide the body. They would report the accident to the authorities, she presumed. Although she said earlier in her evidence that there were other reasons she could conclude the blow came before death, she later agreed with the position put to her by Defence Counsel that “… the only reason why you would say that one is more likely than the other is because of the actions of the person covering up the body”. She replied “yes”.

However, Dr. Rose also admitted she was not a forensic psychiatrist and has no particular expertise in human behaviour. Therefore, ladies and gentlemen, I would instruct you she cannot give expert opinion evidence as to how a person would react after a traumatic death. You should disregard her opinion that the fracture more likely occurred before death, if you find she based it only on the hiding of the body. Consider all her testimony on this point and all the other evidence bearing on it. Use your common sense. [Emphasis added.]

[10] The appellant contends that the trial judge erred in the emphasized passage: instead of the instruction “only on the hiding of the body”, the jury should have been instructed to disregard Dr. Rose’s evidence to the extent that it was based on the evidence relating to the body. To our eyes this is a semantic distinction without a difference. In our view, the trial judge’s instruction “to disregard her opinion” if “she based it only on the hiding of the body”, coupled with the review of Dr. Rose’s testimony immediately above this instruction, was entirely correct.

(3) Unreasonable verdict

[11] The appellant submits that the jury verdict of guilty of first degree murder was unreasonable.

[12] We disagree. The legal test on this issue is whether a reasonable jury, properly instructed in the law and acting judicially, could have concluded that the murder was planned and deliberate: see R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.).

[13] We conclude that the jury was properly instructed in the law. On the evidentiary point, in our view the Crown tendered a substantial body of circumstantial evidence relating to the appellant’s conduct both before and after Ms. Zumach’s death that served as a proper foundation for the jury’s verdict.

[14] The appeal is dismissed.

“M. A Catzman J.A.”

“J. C. MacPherson J.A.”

“E. E. Gillese J.A.”```