R. v. Pomeroy

91 O.R. (3d) 261

Court of Appeal for Ontario,

Weiler, Simmons and Cronk JJ.A.

June 27, 2008

Charter of Rights and Freedoms -- Right to counsel -- Detention -- Police asking accused to come to police station to provide them with information in early stages of murder investigation -- Police not informing accused of right to counsel before interview -- Fact that police had reasonable grounds to arrest accused for breach of probation before interview and decided not to do so until after the interview not leading to conclusion that accused was detained at time of interview -- Accused not suspect and evidence not establishing that accused felt he had no choice but to give statement -- Accused not detained -- Accused's right to counsel not violated -- Canadian Charter of Rights and Freedoms, s. 10(b).

Charter of Rights and Freedoms -- Fundamental justice -- Self-incrimination -- Right to remain silent -- Police asking accused to come to police station to provide them with information in early stages of murder investigation -- Police not informing accused of right to remain silent before interview -- Accused not detained at time of interview -- Interview not constituting functional equivalent of detention -- Accused's right to silence not engaged -- Canadian Charter of Rights and Freedoms, s. 7.

Criminal law -- Charge to jury -- Position of defence -- Trial judge not failing to adequately review position of defence address that were based on speculation -- Trial judge not obliged to review alleged gaps in Crown's case where gaps were either speculative or did not relate to what the Crown was required to prove.

Criminal law -- Charge to jury -- Post-offence conduct ("consciousness of guilt") -- False statement to police during investigation -- Accused convicted of first degree murder and sexual assault -- Accused giving detailed statement to police early in investigation in which he admitted meeting deceased briefly but denied knowing her -- Evidence existing that statement was fabricated -- Circumstances calling for fabrication instruction to jury and trial judge failing to give such instruction -- Omission of fabrication instruction not affecting verdict. [page262]

The accused was convicted of first degree murder and sexual assault. In the early stages of the investigation, the accused was asked to come to the police station to provide the police with whatever information he might have. The interviewing officer was aware that the accused had been drinking alcohol on the day of the murder, contrary to the terms of a probation order, but decided not to charge him with breach of probation until after the interview. The accused was not cautioned or informed of his right to counsel before the interview. He told the officer that he had gone to the deceased's apartment building with a friend who lived in the building, that the deceased spoke to his friend and gave the accused a glass of water after he vomited, that he did not know the deceased, had not "partied with her" and that he went home immediately after that encounter. A month later, the police received the result of a DNA test showing the accused's semen in the victim's mouth and stomach, and the accused was arrested. The accused appealed the conviction.

Held, the appeal should be dismissed.

The trial judge did not err in ruling that the accused's statement to the police was admissible. The fact that the police have reasonable grounds to arrest a person and have formed the intention to do so does not necessarily lead to a conclusion that the person is detained. The question of whether or not a person is detained requires a contextual analysis. There was no evidence in this case that the police gave the accused any demand or direction, or that he believed he had no choice but to comply with their request to speak to him. The fact that they planned to arrest him for breach of probation after the interview was irrelevant to whether he made an informed choice to talk to them about the deceased. At the time of the interview, the accused was not considered to be a suspect. The interview was conducted to gain general information as part of the investigation and not for the purpose of obtaining incriminating statements from the accused. The accused was not detained for the purpose of s. 10(b) of the Canadian Charter of Rights and Freedoms at the time of the interview.

The police did not violate the accused's right to silence under s. 7 of the Charter by obtaining a statement from him without advising him of his true status. The right to silence may be extended to cases where the accused is not in detention if the accused is under the control of the state in circumstances functionally equivalent to detention. In this case, the police interview was not the functional equivalent of a detention. The accused was aware that he was speaking with police officers when he provided the statement, and he wanted to be cooperative. He was not a suspect and was not detained. The concerns respecting abuse of police power and vulnerability that normally support the provision of the right to silence were not engaged.

As the Crown sought to adduce evidence that the accused's statement to the police was fabricated and the accused did not testify, the judge should have made a preliminary finding that there was independent evidence of fabrication before permitting the Crown to prove that the statement was false. No such preliminary finding was sought or made but this omission did not matter in this case. There was evidence that the accused's statement to the police was fabricated and a fabrication instruction should have been given to the jury. In particular, the jury should have been cautioned that mere disbelief of the statement did not entitle them to infer that the accused was guilty of the crimes with which he was charged unless they were satisfied that there was independent evidence of fabrication and that the accused made up his version of events because he was aware that he had done what was alleged. However, the verdict would inevitably have been the same had the trial judge charged the jury on fabrication. [page263]

The trial judge did not err in failing to instruct the jury that the accused's false statement could only serve to identify him as being involved in a sexual assault and that it could not be used in relation to whether he was involved in the murder. In the circumstances, the jury was entitled to consider the statement on the question of motive, as the person who committed the sexual assault had a motive to kill in order to cover up the sexual assault.

The jury was entitled to take the false statement into account, along with the other evidence, in determining whether the accused acted with the requisite intent for murder.

The trial judge did not fail to adequately review the position of the defence in his charge to the jury. He reviewed the evidence on which the foundation of the defence rested, namely, the accused's statement and the alibi evidence of his mother. The trial judge's omission to review other parts of the defence closing address suggesting that the Crown had not proven its case beyond a reasonable doubt was not an error because those submissions were based on speculation. Similarly, the trial judge was not obliged to review the alleged gaps in the Crown's case because they were either speculative or did not relate to what the Crown was required to prove. When considered as a whole, the charge was not substantively unfair to the accused because it allowed the jury to appreciate the issues and the defence presented.

The trial judge did not err in not putting the defence of intoxication to the jury. The accused's trial counsel chose not to raise the defence of intoxication so as not to prejudice the main defence, which was alibi. Considering that position, along with the limited evidence respecting the accused's alcohol consumption and the fact that it is obvious that a person unable to move will drown when placed face down in water, as the deceased was, the trial judge was not obliged to charge the jury on advanced intoxication.

While the trial judge gave the jury a "timid juror" instruction, the use of that instruction did not compromise the jury's understanding of reasonable doubt.

APPEAL from a conviction entered by Kealey J. for first degree murder and sexual assault.

Cases referred to R. v. Figueroa, [2008] O.J. No. 517, 2008 ONCA 106, 233 O.A.C. 176, 232 C.C.C. (3d) 51, 77 W.C.B. (2d) 806; R. v. O'Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263, [2002] O.J. No. 4410, 166 O.A.C. 202, 170 C.C.C. (3d) 365, 7 C.R. (6th) 205, 100 C.R.R. (2d) 164, 56 W.C.B. (2d) 61 (C.A.); R. v. Osmar (2007), 84 O.R. (3d) 321, [2007] O.J. No. 244, 2007 ONCA 50, 220 O.A.C. 186, 217 C.C.C. (3d) 174, 44 C.R. (6th) 276, 150 C.R.R. (2d) 301, 73 W.C.B. (2d) 98 [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 157], consd R. v. Voss, 1989 CanLII 7167 (ON CA), [1989] O.J. No. 1124, 33 O.A.C. 190, 50 C.C.C. (3d) 58, 71 C.R. (3d) 178, 7 W.C.B. (2d) 303 (C.A.), distd Other cases referred to R. v. Anderson, 2003 CanLII 31748 (ON CA), [2003] O.J. No. 3922, 179 C.C.C. (3d) 11, 19 C.R. (6th) 152, 59 W.C.B. (2d) 489 (C.A.); R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5, 111 D.L.R. (4th) 48, 162 N.R. 280, J.E. 94-241, 69 O.A.C. 26, 87 C.C.C. (3d) 289, 27 C.R. (4th) 1, 22 W.C.B. (2d) 144; R. v. Archer, 2005 CanLII 36444 (ON CA), [2005] O.J. No. 4348, 203 O.A.C. 56, 202 C.C.C. (3d) 60, 34 C.R. (6th) 271, 67 W.C.B. (2d) 790 (C.A.); R. v. B. (O.), 1995 NSCA 220, [1995] N.S.J. No. 499, 146 N.S.R. (2d) 265, 103 C.C.C. (3d) 531, 45 C.R. (4th) 68, 29 W.C.B. (2d) 208 (C.A.); R. v. Bazinet (1986), 1986 CanLII 108 (ON CA), 54 O.R. (2d) 129, [1986] O.J. No. 187, 25 C.C.C. (3d) 273, 51 C.R. (3d) 139, 14 O.A.C. 15, 16 W.C.B. 164 (C.A.); R. v. Caputo, 1997 CanLII 1636 (ON CA), [1997] O.J. No. 857, 98 O.A.C. 30, 114 C.C.C. (3d) 1, 34 W.C.B. (2d) 54 (C.A.); [page264] R. v. Carrière, 2001 CanLII 8609 (ON CA), [2001] O.J. No. 4157, 151 O.A.C. 115, 159 C.C.C. (3d) 51, 51 W.C.B. (2d) 372 (C.A.); R. v. Cooper, 1979 CanLII 63 (SCC), [1980] 1 S.C.R. 1149, [1979] S.C.J. No. 139, 110 D.L.R. (3d) 46, 31 N.R. 234, 51 C.C.C. (2d) 129, 13 C.R. (3d) 97, 18 C.R. (3d) 138, 4 W.C.B. 284; R. v. 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(3d) 103, 13 N.R. 592, [1977] 2 W.W.R. 628, 33 C.C.C. (2d) 473, 37 C.R.N.S. 60, 1 W.C.B. 195; R. v. McKinnon, 1989 CanLII 9924 (ON CA), [1989] O.J. No. 609, 33 O.A.C. 114, 70 C.R. (3d) 10, 7 W.C.B. (2d) 333 (C.A.); R. v. Miller (1991), 1991 CanLII 2704 (ON CA), 5 O.R. (3d) 678, [1991] O.J. No. 2010, 50 O.A.C. 282, 68 C.C.C. (3d) 517, 9 C.R. (4th) 347, 14 W.C.B. (2d) 366 (C.A.); R. v. Moran, 1987 CanLII 124 (ON CA), [1987] O.J. No. 794, 21 O.A.C. 257, 36 C.C.C. (3d) 225, 2 W.C.B. (2d) 347 (C.A.); R. v. Murray (1994), 1994 CanLII 1692 (ON CA), 20 O.R. (3d) 156, [1994] O.J. No. 2099, 73 O.A.C. 321, 93 C.C.C. (3d) 70, 24 W.C.B. (2d) 625 (C.A.); R. v. Olsen, 1999 CanLII 1541 (ON CA), [1999] O.J. No. 218, 116 O.A.C. 357, 131 C.C.C. (3d) 355, 22 C.R. (5th) 80, 41 W.C.B. (2d) 60 (C.A.); R. v. Rajaratnam, [2006] A.J. No. 1373, 2006 ABCA 333, [2007] 2 W.W.R. 222, 67 Alta. L.R. (4th) 22, 397 A.R. 126, 214 C.C.C. (3d) 547, 43 C.R. (6th) 280, 148 C.R.R. (2d) 172, 71 W.C.B. (2d) 655; R. v. Reynolds, 2003 CanLII 660 (ON CA), [2003] O.J. No. 569, 169 O.A.C. 26, 172 C.C.C. (3d) 559, 56 W.C.B. (2d) 638 (C.A.); R. v. Singh, [2007] S.C.J. No. 48, 2007 SCC 48, 285 D.L.R. (4th) 583, 369 N.R. 1, [2008] 1 W.W.R. 191, J.E. 2007-2037, 73 B.C.L.R. (4th) 1, 225 C.C.C. (3d) 103, 51 C.R. (6th) 199, 249 B.C.A.C. 1, 75 W.C.B. (2d) 420, EYB 2007-125351, 163 C.R.R. (2d) 280; R. v. Squire, 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13, [1976] S.C.J. No. 50, 69 D.L.R. (3d) 312, 10 N.R. 25, 29 C.C.C. (2d) 497; R. v. Teske, 2005 CanLII 31847 (ON CA), [2005] O.J. No. 3759, 202 O.A.C. 239, 32 C.R. (6th) 103, 66 W.C.B. (2d) 658 (C.A.); R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652, [1987] S.C.J. No. 22, 39 D.L.R. (4th) 275, 75 N.R. 198, [1987] 4 W.W.R. 193, 57 Sask. R. 113, 32 C.C.C. (3d) 481, 57 C.R. (3d) 97, 2 W.C.B. (2d) 314; R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30, 18 D.L.R. (4th) 655, 59 N.R. 122, [1985] 4 W.W.R. 286, 38 Alta. L.R. (2d) 99, 40 Sask. R. 122, 18 C.C.C. (3d) 481, 45 C.R. (3d) 97, 13 C.R.R. 193, 32 M.V.R. 153, 14 W.C.B. 190; R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640, [1988] S.C.J. No. 31, 84 N.R. 347, J.E. 88-582, 27 O.A.C. 85, 40 C.C.C. (3d) 411, 63 C.R. (3d) 1, 32 C.R.R. 257, 4 M.V.R. (2d) 185, 4 W.C.B. (2d) 125; R. v. Varcoe, 1996 CanLII 1129 (ON CA), [1996] O.J. No. 334, 88 O.A.C. 127, 104 C.C.C. (3d) 449, 30 W.C.B. (2d) 21 (C.A.); R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277, J.E. 91-603, 46 O.A.C. 352, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302; R. v. White (1998), 1998 CanLII 789 (SCC), 39 O.R. (3d) 223, [1998] 2 S.C.R. 72, [1998] S.C.J. No. 57, 161 D.L.R. (4th) 590, 227 N.R. 326, J.E. 98-1546, 112 O.A.C. 1, 125 C.C.C. (3d) 385, 16 C.R. (5th) 199, 38 W.C.B. (2d) 442; R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, [1999] S.C.J. No. 28, 174 D.L.R. (4th) 111, 240 N.R. 1, J.E. 99-1222, 123 B.C.A.C. 161, 135 C.C.C. (3d) 257, 24 C.R. (5th) 201, 63 C.R.R. (2d) 1, 42 M.V.R. (3d) 161, 42 W.C.B. (2d) 391; R. v. Zebedee (2006), 2006 CanLII 22099 (ON CA), 81 O.R. (3d) 583, [2006] O.J. No. 2628, 212 O.A.C. 23, 211 C.C.C. (3d) 199, 71 W.C.B. (2d) 134 (C.A.); Reference re Motor Vehicle Act (British Columbia) S. 94(2), 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, 24 D.L.R. (4th) 536, 63 N.R. 266, [1986] 1 W.W.R. 481, J.E. 86-99, 69 B.C.L.R. 145, 23 C.C.C. (3d) 289, 48 C.R. (3d) 289, 18 C.R.R. 30, 36 M.V.R. 240, 15 W.C.B. 343 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 10, (b), 24(2) Criminal Code, R.S.C. 1985, c. C-46, s. 655 [page265] Authorities referred to Hogg, Peter W., Constitutional Law of Canada, looseleaf, vol. 2 (Scarborough, Ont.: Carswell, 2002) Watt, David, Watt's Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005)

Timothy E. Breeni, for appellant. Lucy Anne Cecchetto, for respondent.

The judgment of the court was delivered by

WEILER J.A.: -- I. INTRODUCTION

[1] The appellant was convicted of first degree murder and sexual assault on June 3, 2004. He appeals both convictions and seeks a new trial on both.

[2] The appellant's grounds of appeal fall into two groups. First, he challenges the trial judge's evidentiary ruling admitting into evidence a statement given by him to police officers investigating the death of Ms. Jennifer Boczylo. On this point, the appellant submits that the trial judge erred in ruling that he was not detained when he made the statement and that there was no violation of his rights under s. 10 of the Canadian Charter of Rights and Freedoms. Second, the appellant alleges that the trial judge erred in his instructions to the jury. Specifically, he submits that the trial judge erred in his instructions as to the use that could be made of his statement, failed to adequately state the position of the defence, failed to charge the jury respecting intoxication in relation to first degree murder and erred in instructing the jury on reasonable doubt.

[3] For the reasons that follow, I would dismiss the appeal. II. BACKGROUND

[4] Ms. Jennifer Boczylo lived alone in apt. #6 at 19 Front St., Trenton, a commercial building with apartments on the second floor. She was last seen alive in the common hallway of her apartment building around midnight on Thursday, August 1, 2002. Frazier Frackleton, who occupied apt. #4, testified that he heard someone being sick outside his apartment. Shortly after, he heard raised voices. He last saw Ms. Boczylo when she intervened in an argument between himself and [page266] Michael Enright, a friend of the appellant who lived in apt. #5. She appeared to be trying to calm Enright down. After five or ten minutes, Frackleton closed his door. About a half hour later, Frackleton heard music come on in Enright's apartment. After the music stopped at 12:00 or 12:30 a.m., Frackleton did not hear anything.

[5] On Friday, August 2, 2002, Ms. Boczylo's friend, Amanda Peever, attended Ms. Boczylos's apartment and found that the door had apparently been kicked open. Parts of the lock were on the floor and there was a partial footwear impression on the door. There was no evidence of any robbery. Ms. Boczylo's purse and personal effects were in the apartment as was her cell phone. Ms. Boczylo was absent. Ms. Peever reported Ms. Boczylo missing to the police.

[6] Around noon on Saturday, August 3, 2002, Ms. Boczylo's body was found floating face down in the Trent River, approximately 200 yards upriver from the foot of the rear stairway to her apartment building.

[7] The post-mortem examination conducted the next day identified drowning as the cause of death associated with blunt force injury to the head. In addition to the extensive blunt force trauma to her head, Ms. Boczylo's shoulders showed extreme and deep haemorrhaging consistent with her arms being pulled backward and forced up above her head. Although the post-mortem indicated Ms. Boczylo was alive when she entered the water, it could not reveal whether she was conscious or unconscious. Her hands had injuries consistent with offensive wounds received in fighting off an attacker and not consistent with having been sustained as a result of being in the river after her death by drowning. The case became an investigation of a "suspicious death". The police interviewed a number of persons who knew Ms. Boczylo or had had contact with her, including the appellant. No arrests were made.

[8] Just over a month later, on September 13, 2002, the police received the result of the DNA test, showing the appellant's semen in Ms. Boczylo's mouth and stomach as well as in vomit collected from the catwalk at the rear of the apartment building. They arrested the appellant and charged him with Ms. Boczylo's murder.

[9] At trial, the Crown's case depended to a significant degree on three pieces of circumstantial evidence:

-- Expert evidence that the shoeprint on the door of the deceased's apartment was similar to that made by a Wilson S7100 shoe owned by the appellant. A security video from [page267] Shopper's Drug Mart showed the appellant wearing the shoes on August 1, 2002 at 1:25 p.m. In addition, the Crown led evidence that only 60 pairs of the S7100 shoe, ranging between size 9 and 12, were sold in the Belleville area.

-- Expert evidence that a drinking glass, found in the kitchen sink, had on it a fingerprint identified as coming from the appellant's left middle finger.

-- Semen found in Ms. Boczylo's mouth and stomach that matched the appellant's DNA profile.

[10] When the trial began, the identity of the person who had had sexual contact with Ms. Boczylo was not admitted. Causation of death and, if the death was a homicide, the identity of the killer were in issue. The appellant did not testify. In oral submissions at the end of trial, the appellant's counsel admitted the appellant had had oral sex with the deceased on the night in question but submitted the Crown had failed to prove the sex was non-consensual or that there was any link between the sex that had occurred and Ms. Boczylo's death. The appellant's counsel also relied on the fact that the body was found in the river upstream from the deceased's apartment building and the absence of injury to the lower part of the deceased's body to suggest that she was not forcibly dragged from her apartment building into the water.

[11] The appellant's mother, Ms. Pomeroy, testified that her son returned to their home shortly after 12:00 a.m. on August 2. In cross-examination, she stated that the time could not have been any later than 12:30 or 12:45 a.m. The defence relied on her evidence to suggest that the appellant would not have had time to commit the crimes alleged and put the body in the water. Although the appellant's statement made to police on August 4, 2002 was introduced into evidence by the Crown over the objection of the defence, the defence also relied on that statement as proof that the appellant had returned home around 12:30 a.m. while his mother was still up and would not have had time to commit the murder. III. THE GROUNDS OF APPEAL A. Whether the Trial Judge Erred in Admitting the Appellant's Statement to the Police

[12] The appellant submits that he was physically detained at the time he gave his statement to the police and, as his rights under s. 10 of the Charter were violated, his statement should have been excluded. [page268] (a) Evidence on the voir dire

[13] P.C. Wilton testified that he telephoned the appellant at 1:35 p.m. on August 4, 2002. He told the appellant that the police were investigating the death of a girl and that his name had come up in speaking with people in and around the building at 19 Front St. He asked the appellant to attend at the police station, "to give any possible information that he knew about people and things happening around the building". The appellant was very cooperative. He stated that he would be right over.

[14] Shortly after the phone call, the appellant walked to the police station and was taken to an interview room equipped with video recording equipment. The interview commenced at 1:43 p.m. and ended at 2:32 p.m. Wilton acknowledged that he did not "caution" the appellant prior to the interview or inform him of his right to counsel.

[15] From speaking to Enright and one Ron Harpell, P.C. Wilton was aware, prior to the interview, that the appellant had been drinking alcohol with them at the Sherwood, a local bar, on the evening of August 1, 2002. Wilton was also aware that the appellant had a criminal record involving offences of violence and was bound by a probation order that included a term he not consume alcohol. The police decided to put the appellant, Enright and Harpell under surveillance on August 3 after the body of Ms. Boczylo was found. However, because the Quinte Police Force was a small force with only one officer available for surveillance, the police placed the appellant under surveillance on the morning of August 4, just prior to the police interview. Two days later, when the Quinte police force received assistance from neighbouring police forces, surveillance began on Enright and Harpell.

[16] Sgt. Rene Menard testified that prior to the interview, he and Wilton had discussed arresting the appellant for failing to comply with his probation order. Wilton testified that the fail to comply offence "was far from being the number one reason" for the police requesting the appellant to attend the station. Wilton also testified that, in the course of the interview at about 2:13 p.m., he left the room to consult with Menard. He stated that during this discussion it was agreed that the appellant should be arrested for failing to comply with his probation. Menard had no recollection of any such discussion. He testified that it was entirely Wilton's decision to arrest the appellant [at] the conclusion of the interview.

[17] The appellant did not testify on the voir dire as to the admissibility of his statement. [page269] (b) The statement

[18] In the interview at the police station, the appellant was questioned about his movements on Thursday, August 1, 2002. The appellant stated that he and Ron Harpell went to the Sherwood at around 12:30 p.m. Harpell was buying drinks. They were joined during the evening by Michael Enright. Enright was drunk and was cut off by the bouncer. They left around midnight and stopped to get some pizza. The appellant declined to say whether he had been drinking or not, stating: "oh I can't say whether I drank or not like, I'm not, I'm not allowed to drink, know what I mean?" The appellant stated that he accompanied Enright to 19 Front Street. He stated that Enright was arguing with a neighbour about walking on his ceiling. The appellant stated that a short blonde girl was also arguing with Enright. The girl was dressed in a white terry cloth robe. The appellant stated that he became sick and vomited. After being sick, he spoke to the girl and she gave him a glass of water. He stated that he did not go into the girl's apartment, but that he was familiar with the girl, having seen her in the building. He informed the police that he did not know her name and had "never partied with her". After he had the glass of water, he told P.C. Wilton that he left the building and returned home, arriving around 12:30 a.m. P.C. Wilton testified there were no visible injuries on the appellant at the time of the interview. (c) The trial judge's ruling

[19] In ruling on the application for Charter relief, after referring to the factors set out in R. v. Moran, 1987 CanLII 124 (ON CA), [1987] O.J. No. 794, 36 C.C.C. (3d) 225 (C.A.), the trial judge stated [at paras. 6-9]:

Even though the police ultimately intended to arrest and detain Mr. Pomeroy on his breach of probation, was he detained within the meaning of s. 10 of the Charter before 2:30 p.m. on August 4, 2002? More specifically was he detained between 13:43 and 14:30 on the said date when he spoke with the officers in response to their inquiries pertaining to the suspicious death of Ms. Boczylo? In my opinion he was not.

It is important to remember at this juncture of the police investigation they had no reason to consider Mr. Pomeroy a suspect, and except for an apparent breaking and entry at Ms. Boczylo's apartment there was no basis for any investigation other than the suspicion which surrounded Ms. Boczylo's death. The manner in which the interview of Mr. Pomeroy was undertaken obviates the aforesaid and demonstrates that the whole thrust of the police effort was to gather as much detail as to Mr. Pomeroy's activities, as well as the names or descriptions of other witnesses he was able to provide, and who may or may not have been able to shed light on the matter. [page270]

Undoubtedly it was the officers' intention and duty to arrest Mr. Pomeroy and detain him due to the likely breach of his terms of probation, as disclosed by his two friends, Enright and Harpell, in their description of the drinking spree at the Sherwood Hotel on August 1 involving themselves and Mr. Pomeroy. However, the primary reason for meeting with Mr. Pomeroy at the time and place in question was a suspicious death under investigation, and to me it was obvious the breach of probation charge was very secondary. In these circumstances it was not incumbent on the officers to prioritize the secondary reason to meet Mr. Pomeroy so as to require his s. 10 rights in relation to the breach of probation charge to be dealt with immediately. To have done so may have compromised, diminished or eliminated the willingness Mr. Pomeroy had demonstrated in cooperating as to the foremost concern of the police at the time. In my view delaying the formal arrest and detention of Mr. Pomeroy for breach of probation was not a violation of his Charter protection, whereas the officers may have jeopardized the full, free, complete and willing exculpatory remarks received from Mr. Pomeroy concerning the suspicious death which was paramount, if they had done otherwise.

The objective of s. 10 is to assure trial fairness and eliminate any disadvantage to a citizen subjected to the direction or control of law enforcement personnel in relation to charges or potential charges against them. Of course, in the discharge of their duties the police may interview anyone while investigating a matter. When someone voluntarily, freely and willingly meets with and provides information to the police in the circumstances disclosed here, the obligations of the police set out in s. 10 regarding an outstanding ancillary offence are not triggered immediately and are properly adhered to when the formal arrest and detention takes place. On the record before me there is no suggestion of compulsion, concern for freedom or unfairness of any kind to Mr. Pomeroy as to his engagement with the investigating officers in receiving the exculpatory statement he provided.

(d) Analysis

[20] The appellant submits that an individual in the company of the police is physically detained where police have reasonable grounds to arrest him and the police have formed an intention to arrest him. I would reject the appellant's submission for two reasons.

[21] First, this court has already refused to extend the concept of detention to situations in which the police have authority to detain an individual in their company but have not yet exercised that authority: see R. v. Hall, 2004 CanLII 46216 (ON CA), [2004] O.J. No. 5007, 193 O.A.C. 7 (C.A.), at para. 22.

[22] Second, the appellant's submission seeks to adopt too narrow an approach to the determination of detention. The appellant focuses on only one criterion used to determine whether a detention exists, namely, whether the appellant was free to leave at the end of the interview. This approach ignores the vast body of jurisprudence which requires a contextual analysis and consideration of all the circumstances in determining whether a detention [page271] exists. Further, the case law submitted by the appellant in support of his submission that he was detained is not applicable to the facts of this case. (i) Detention and police authority to detain an individual

[23] In R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, [1985] S.C.J. No. 30 and R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640, [1988] S.C.J. No. 31, the Supreme Court of Canada identified three situations that give rise to a detention: (1) where there is a deprivation of liberty by physical constraint; (2) when the police assume control over the movement of a person by a demand or direction which may have significant legal consequences and which prevents or impedes access to counsel; and (3) in situations where the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist (i.e., psychological detention). It is the second situation that the appellant alleges gave rise to the detention in this case.

[24] The facts in Hall are instructive in assessing the alleged detention in this case. The police obtained judicial warrants compelling the appellant to provide DNA samples and an impression of his hands but, rather than executing these warrants and compelling his attendance, the officers asked if he would agree to come to the station for an interview and provide the necessary samples. The police hoped that by keeping their relationship with Hall on a voluntary basis, he might provide further information that would assist them in their investigation. After waiting for him to finish work the police accompanied him to the station. On the voir dire the appellant said that he understood he had a choice whether to accompany the police or not and knew he could refuse to speak with them.

[25] Doherty J.A. rejected the appellant's submission that he was detained simply because the police had the authority to detain him by virtue of the warrants and intended to exercise that authority if the appellant refused to cooperate. At para. 22, he noted:

I see no reason in policy or logic to extend the concept of detention to situations in which the police have the authority to detain an individual, choose not to exercise that authority, and instead permit an individual to choose whether to voluntarily accede to a request from the police. If detention is to have any meaning, it must involve the exercise of some power by a state authority over an individual's liberty, or the reasonable apprehension of the exercise of such power. Here, for tactical reasons, the police deliberately chose not to exercise that power . . . .

[26] Doherty J.A. further held that the fact that the police would have executed the warrants if the appellant had refused to [page272] cooperate was irrelevant to whether his decision to cooperate was an informed one. This was largely because the police had told the appellant en route to the station that he was a suspect, that he had the right to remain silent and that he had a right to counsel: see Hall, at para. 23.

[27] In this case, while the interview took place in the police station, it is important to note that, prior to giving his statement, the appellant was not deprived of his liberty by physical restraint in the sense that he was neither handcuffed nor placed in a cell; nor was he subject to any form of direction by the police. The police allegedly made a decision to arrest the appellant but did not act on that decision in the hope that by keeping the relationship on a voluntary basis as long as possible, he might provide information to assist them in their investigation. There is no evidence that the police gave him any demand or direction. There is no evidence that the appellant believed he had no choice but to comply with the police request to speak with them or that he believed his freedom had been restrained; the appellant concedes this. As indicated by Wilton, the appellant wanted to be "cooperative".

[28] The appellant understood that he could refuse to answer questions put to him and exercised that right at one point during the interview, refusing to answer whether he had been drinking on the night of August 1, 2002.

[29] The trial judge viewed the videotape and found that the appellant was well aware of his rights; that the thrust of the interview was to gather as much detail as to the appellant's activities as he was able to provide, as well as the names or descriptions of other witnesses; and that all those associated with the building were interviewed. The fact that the police planned to arrest the appellant for breach of probation after the interview was irrelevant to whether he made an informed choice to talk to them about Ms. Boczylo.

[30] The appellant submits that the evidence does not support a distinction between the questioning in relation to the murder and the breach of probation because his movements on August 1, 2002 and association with Enright and Harpell were relevant to both. I disagree with this view. At the time, there was no evidence to link the offence of breach of probation, for which the appellant was going to be arrested, and the suspicious death with respect to which he was being questioned. Further, as in Hall, the execution of the process authorized had not taken place at the time of the questioning. The appellant has not provided any basis to discount his earlier decision to voluntarily cooperate with the police in their murder investigation simply because the police [page273] formed an intention to detain him at a later time on a comparatively minor matter. There is always the possibility that the police may have changed their mind about arresting him for breach of probation. A physical detention does not depend on the intention of the police but on their action in directing or taking control of a person. (ii) Detention as a contextual analysis

[31] An additional pitfall in the appellant's argument is that he limits the analysis of whether there has been a physical detention to the single criterion of whether the appellant was entitled to leave at the end of the interview. As a result, the detention analysis turns entirely on the knowledge or intention of the police. While this is a factor that should be considered in the detention analysis, it should not form the entirety of the analysis.

[32] The analysis of whether an individual is detained is a contextual one. In R. v. Rajaratnam, 2006 ABCA 333, [2006] A.J. No. 1373, 214 C.C.C. (3d) 547 (C.A.), at paras. 13-14, the court held that a trial judge has a duty to take into consideration all the circumstances in determining whether a person is detained when questioned by the police. This approach was also advanced in Moran. While that decision concerned an alleged psychological detention, the factors relevant to a contextual analysis remain relevant, as here, where an alleged physical detention is involved. In this case, whether the appellant was escorted by a police officer or came himself in response to a police request is a consideration relating to physical detention, as is the question of whether the police gave a direction or assumed control over the appellant. The stage of the investigation, the nature of police questioning and whether the police had reasonable and probable grounds to believe that the individual had committed the crime being investigated are also relevant factors for consideration in any detention analysis.

[33] The absence of any "compulsion or coercion" by the police, such as a demand or direction, that could be said to constitute an interference with the appellant's liberty or freedom of action during the course of the interview is a central factor supporting the conclusion that at the time of the interview the appellant was not detained: see R. v. Therens, at p. 642 S.C.R.; R. v. Bazinet (1986), 1986 CanLII 108 (ON CA), 54 O.R. (2d) 129, [1986] O.J. No. 187, 25 C.C.C. (3d) 273 (C.A.), at p. 284 C.C.C. Even if, in a broad sense, the appellant may have been a suspect at that time, that fact alone is not determinative of the question of whether he was detained: see Moran, at p. 260 C.C.C. The rights conferred by s. 10 are not possessed by the [page274] individual who voluntarily chooses to cooperate with police: see Peter W. Hogg, Constitutional Law of Canada, looseleaf, vol. 2 (Scarborough, Ont.: Carswell, 2002), at 47-2.

[34] The rights of a person upon arrest or detention under s. 10 of the Charter address specific aspects of the right not to be deprived of liberty and security of the person as protected by s. 7: Reference re Motor Vehicle Act (British Columbia) S. 94(2), 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73. The broader principle in s. 7 also requires a contextual analysis and further supports my conclusion that, irrespective of the type of detention alleged, a contextual analysis is required. For example, in R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, [1999] S.C.J. No. 28, Iacobucci J. held, at para. 45:

The principle against self-incrimination demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue. (Emphasis added)

[35] Here, the trial judge did conduct a contextual analysis that involved consideration of all the circumstances in coming to his conclusion and he was right to do so.

[36] At the time of the interview, the police were still in the early stages of their investigation. The DNA, footprint and fingerprint analyses were still unavailable. While the appellant was a person of interest to the police, they had no basis for considering him to be a suspect or for telling him that he was one. In fact, according to P.C. Wilton, at that time there was "absolutely no information to implicate anyone as being a suspect", nor was there evidence to support the conclusion that a crime had even occurred.

[37] The focus of the interview was to gain general information as part of the investigation of the "suspicious death"; the questioning was not conducted for the purpose of obtaining incriminating statements from the appellant. In many ways, the nature of the questioning was similar to that in R. v. Caputo, 1997 CanLII 1636 (ON CA), [1997] O.J. No. 857, 114 C.C.C. (3d) 1 (C.A.), at pp. 11-12 C.C.C., in which Rosenberg J.A. upheld the trial judge's determination that the appellant had not been detained in violation of his s. 10(b) rights when he made a statement to the police. As in that case, the questioning here appears to have been general in nature and directed toward obtaining a witness statement from the appellant. At no point during the interview did the police confront the appellant with evidence pointing to his guilt for sexual assault or murder.

[38] To summarize, in assessing when a detention has occurred for the purpose of the Charter, the focus cannot be limited simply [page275] to the time at which the police make a decision to deprive the individual of his or her liberty. That approach improperly limits the entire focus to the perception or intention of the police. Rather, as in Moran, a broader contextual analysis that accounts for all relevant factors is required to ascertain whether an individual was detained. Thus, even if, as Wilton testified, the police decided to arrest the appellant midway through the interview for breach of probation, they did not exercise their power of arrest at that time. A contextual analysis leads me to conclude that the appellant was not detained during the interview. (iii) The jurisprudence relied on by the appellant does not apply to this case

[39] The appellant relies on R. v. Voss, 1989 CanLII 7167 (ON CA), [1989] O.J. No. 1124, 50 C.C.C. (3d) 58 (Ont. C.A.), in support of his submission that he had the right to be advised of his right to counsel as required by s. 10(b) and that this right was violated.

[40] In Voss, the accused had been in the company of the police officers for a number of hours and had given an exculpatory statement. The court held that the case was not one of mere questioning by the police in fulfillment of their duties; rather, the accused was detained when the investigation changed from one of trying to determine the cause of death to one of trying to acquire incriminating statements from him. In those circumstances, Tarnopolsky J.A. held that the individual's s. 10(b) Charter rights must be extended to him. However, Tarnopolsky J.A. characterized the initial part of the police interview as an instance of mere questioning by the police, in which case there was no requirement to inform the person being questioned of a right to counsel: see Voss, at p. 73 C.C.C.

[41] In this case, the nature of the police investigation did not change during the course of the police interview from one that involved mere questioning to acquire information about the suspicious death of Ms. Boczylo to one that became adversarial in nature. When the atmosphere is adversarial in nature, the person involved is placed under emotional or psychological pressure: see R. v. White, at para. 56. That was not the situation here. In such circumstances, the police had no obligation to extend to the appellant his s. 10(b) Charter rights. The decision in Voss is distinguishable.

[42] In advancing his s. 10(b) argument, the appellant also relies on R. v. Miller (1991), 1991 CanLII 2704 (ON CA), 5 O.R. (3d) 678, [1991] O.J. No. 2010 (C.A.), a decision in which the accused's employer assisted [page276] the police in using a trick to obtain handwriting samples from the accused. The question was whether the conduct of the police unfairly deprived the suspect of the right to choose whether to speak to the police and the court held it did not. Here, the only "trickery" alleged is that the police proposed to arrest the appellant for breach of probation after they had questioned him. This is not a case of the police making a misrepresentation to a suspect or of detaining an individual on a relatively minor offence and using it as a pretext to question the individual about a serious one without giving him his rights before doing so. (iv) Violation of the appellant's right to silence

[43] In the alternative, the appellant submits that the conduct of the police in obtaining a statement from him without advising him of his true status contravened his right to silence. It is well established that "the residual protection afforded to the right to silence under s. 7 of the Charter is only triggered upon detention": see R. v. Singh, 2007 SCC 48, [2007] S.C.J. No. 48, 285 D.L.R. (4th) 583, at para. 32. See also R. v. Osmar (2007), 2007 ONCA 50, 84 O.R. (3d) 321, [2007] O.J. No. 244 (C.A.), at paras. 42-45, discussing R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64. As noted in Singh, at para. 32, "the suspect's situation is much different after detention" [emphasis in original] in that the suspect is more vulnerable and there is a heightened risk of abuse of power by the police.

[44] The appellant submits that Osmar leaves the door open to engaging the right to silence short of detention. In Osmar, although Rosenberg J.A. [at para. 42] recognized that the right to silence may be extended to cases where the accused is not in detention, he confines this to situations in which the accused "was nevertheless under the control of the state in circumstances functionally equivalent to detention and equally needing protection from the greater power of the state". It should be noted that in Osmar, the appellant's statements were made in the context of an undercover police operation when the appellant was a suspect in two murders.

[45] In this case, the circumstances do not support the conclusion that the police interview constituted the functional equivalent of a detention. The appellant was clearly aware that he was speaking with police officers when he provided his statement, he was not, at that time, a suspect and he wanted to be cooperative. Most significantly, he was not detained at the time he provided the statement. Thus, the concerns respecting abuse of [page277] police power and vulnerability that normally support the provision of the s. 7 right were not engaged. In the circumstances, it is not open to this court to reject the detention requirement before requiring the police to inform the appellant of his s. 7 right to silence. (e) Conclusion on admission of appellant's statement

[46] The appellant has not demonstrated any basis upon which this court can interfere with the trial judge's ruling that he was not detained during the interview with P.C. Wilton between 1:43 p.m. and 2:32 p.m. on August 4, 2002. The appellant's statement was properly admitted and I would not give effect to his Charter argument.

[47] In view of my conclusion that the appellant's rights under s. 10 of the Charter were not breached, I need not address his argument that the statement should be excluded pursuant to s. 24(2). B. Alleged Errors in the Charge to the Jury

[48] The errors alleged by the appellant in relation to the trial judge's charge to the jury are that he: (1) failed to properly charge the jury with respect to the use it could make of the appellant's statement; (2) failed to adequately review the position of the defence and the evidence in support of it; (3) erred in not putting the defence of intoxication to the jury; and (4) erred in charging the jury on reasonable doubt. (a) Did the trial judge fail to properly charge the jury with respect to the use it could make of the appellant's statement? (i) The pre-charge conference and closing submissions

[49] Before discussing this submission, it is necessary to have regard to the pre-charge conference. The pre-charge conference informs the trial judge's instructions to the jury and is an important aspect of counsel's conduct of the trial.

[50] There was some confusion during the pre-charge conference. A number of times defence counsel focused on the evidence of the appellant's mother, Ms. Pomeroy, and stated that there should be no charge in respect of fabrication in relation to her statement. The Crown agreed and indicated that he was simply going to suggest that her alibi evidence was false.

[51] The trial judge clarified that his main concern was the use that the jury could make of the appellant's statement. If the jury came to the conclusion that the appellant's statement was made [page278] to fabricate or mislead, he was uncertain whether the jury should be charged on the law relating to fabrication.

[52] The Crown suggested that a fabrication instruction was appropriate. This is indicated at two points within the pre- charge conference. The Crown enunciated the following position in reference to the appellant's statement:

If in fact it was an alibi which was fabricated to mislead the police, then I think you can give them the fabrication instruction -- the standard fabrication instruction. Subsequently, the Crown seems to have reinforced this position:

I'd agree with what Your Honour said initially about the statement. That would be our submission in a nutshell. If he's making it up to say, "I didn't know her", to distance himself from the offence, when clearly we can establish that he did have contact with her by virtue of the DNA, then in my respectful submission the jury would be entitled to conclude that evidence was fabricated. And it's tantamount to alibi evidence. He's saying "I didn't know her".

[53] The defence asked the trial judge to tell the jury that it could choose to believe some, part or none of the appellant's statement and also asked the trial judge to give the standard charge as established by the Supreme Court in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, in relation to the statement.

[54] At the end of the pre-charge conference, the trial judge stated that he would leave the issue of fabrication for consideration after closing submissions.

[55] In his closing statement to the jury, the Crown made a number of references to the appellant's semen found in Ms. Boczylo's mouth and stomach. He connected this evidence to the appellant's statement to emphasize that the appellant had lied to conceal his guilt. For example, at one point in his closing, Crown counsel stated:

If Mr. Pomeroy had consensual sex with Jennifer Boczylo as is now being suggested may have been the case because we didn't prove otherwise, then why did he lie to the police?.... He lied to the police about that because he didn't know that science would prove him wrong. Watch that video again knowing now what you know about his semen in her mouth and body.

He made those statements to the police because it was extremely important for him to distance himself from Jennifer. He wanted to actively mislead the police in their investigation into the death of this young girl. He wanted to shield himself from the police's scrutiny. He wanted the police to focus on someone other than him. And he wanted all of that because he's guilty.

[56] After closing submissions, the trial judge provided a copy of his charge to the defence and Crown. That copy, like his charge, did not contain an instruction on fabrication as the [page279] Crown had requested in the pre-charge conference. The Crown did not follow up on his request that the trial judge include the fabrication instruction in the charge. Nor was the issue of what use the jury could make of the appellant's statement revisited prior to the trial judge's charge to the jury. (ii) Charging the jury on fabrication

[57] Watt's Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005) contains a suggested general instruction on the use of evidence of post-offence conduct and on fabricated explanations. Watt states that the post-offence conduct "General Instruction 27-A" should be used when the evidence on which the Crown relies is not a false alibi or other false inculpatory statement. Where, as here, it is then based on this court's decisions in R. v. O'Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263, [2002] O.J. No. 4410, 170 C.C.C. (3d) 365 (C.A.) and R. v. Reynolds, 2003 CanLII 660 (ON CA), [2003] O.J. No. 569, 172 C.C.C. (3d) 559 (C.A.), the instruction on fabricated explanations called "Final 27-B" is to be given.

[58] After reviewing the accused's statement, the trial judge ought to tell the jury what the effect of the statement is and then give the jury a W. (D.)- type instruction.

[59] Next, the trial judge ought to tell the jury that there is evidence upon which it may, but does not have to, find that the accused has fabricated or made up his statement and outline for the jury what that evidence is.

[60] The trial judge must warn the jury that there is a big difference between disbelief of a version of events and fabrication, explain the difference, and tell the members of the jury that if they merely disbelieve the statement they are to ignore it and consider the rest of the evidence in deciding the case. However, if they are satisfied on the basis of the independent evidence that the evidence was not just false but was actually fabricated, the members of the jury should be told to consider the reason why the accused fabricated his statement.

[61] If they conclude that the statement was fabricated because the accused was conscious that he did what was alleged, they are told they may take that finding into account, along with the rest of the evidence, in deciding whether Crown counsel has proven the guilt of the accused beyond a reasonable doubt. On the other hand, if they do not find that the accused fabricated his statement because he was aware that he did what was alleged, the members of the jury are again told that they are not entitled to use the evidence in deciding the guilt of the accused. [page280] (iii) Jury charge in relation to the appellant's statement

[62] The trial judge told the jury that the appellant's statement could be both evidence for and against him and that it, together with the whole of the evidence, was relevant to each element of sexual assault and murder.

[63] In summarizing the Crown's position for the jury, the trial judge essentially repeated the Crown's suggestion that the jury should reason that the appellant lied to the police because he knew he was guilty:

[The appellant] lied to the police about the sexual contact because it was not consensual, and because he wanted to distance himself from the murder investigation. He wanted to mislead the police in their investigation into the death of this young woman. He wanted to shield himself from their scrutiny. He wanted them to focus on someone other than him.

[64] The trial judge concluded his charge by saying:

In this case Mr. Pomeroy in his statement to the police has given you an explanation of the events which, if accepted, would result in a verdict of not guilty. And it is not a question when such is the case that you can simply choose the Crown's version of what happened or the version given by the defence. You must approach the issue in this way: He then followed this with the W. (D.) instruction. Finally, the trial judge cautioned the members of the jury against considering individual pieces of evidence in isolation and told them that the Crown would not have discharged its burden of proof unless they were satisfied beyond a reasonable doubt that the appellant's guilt was the only rational conclusion to be drawn from the evidence.

[65] Following the charge, defence counsel, who is not counsel on this appeal, did not submit that an instruction was required to correct what the Crown had said in closing or that the trial judge had erred in his charge with respect to the appellant's statement. (iv) The trial judge's failure to instruct the jury on fabrication in relation to the appellant's statement

[66] The appellant submits that because the Crown relied upon the appellant's statement as positive evidence of guilt in his closing address the trial judge was obliged to give the fabrication instruction.

[67] The appellant's submission requires me to address two separate questions:

(1) Was there evidence that the appellant's statement was fabricated? [page281]

(2) What is the effect of the trial judge's omission to charge the jury on fabrication?

[68] There was evidence that the appellant's statement was fabricated and the circumstances warranted a fabrication instruction. However, on the particular facts of this case, the trial judge's omission to provide such instruction does not lead me to conclude that the appeal should be allowed on this basis and a new trial ordered. I elaborate on my conclusion below. (1) Was there evidence that the appellant's statement was fabricated?

[69] The decision in O'Connor sets out the current position of the law with respect to fabrication. When the accused does not testify, and the Crown seeks to introduce evidence to demonstrate that the accused's statement was fabricated, the trial judge must make a preliminary determination that there is evidence of fabrication that, if accepted, could reasonably support a finding of fabrication. If an inference of fabrication is not available, there is no purpose in the Crown proving that the accused made a false statement. A preliminary determination of fabrication was not sought or made in this case. However, because I am of the opinion that such evidence did exist, the omission of the Crown to seek such a determination is of no import.

[70] For policy reasons, a finding of fabrication must be founded on evidence that is independent of the evidence discrediting the accused's statement: see O'Connor, at para. 21. Evidence discrediting the accused's statement that he went home and had nothing to do with Ms. Boczylo after she gave him a glass of water is the evidence that the appellant's DNA profile matched the DNA evidence found in Ms. Boczylo's mouth and stomach. Thus, evidence of fabrication in this case is required to be evidence separate from the DNA evidence. In O'Connor, at paras. 31 and 35, the court held that where an accused person does not testify at his or her trial and has made an out-of-court statement that is found to be untrue, the jury may consider the circumstances in which the false statement was made and the detailed nature of the statement as evidence of fabrication.

[71] In this case, as in O'Connor, the appellant's statement to the police was made at a time when the police did not suspect the appellant and the appellant did not have reason to believe that he was a suspect. The police were questioning all those who had seen the appellant the night before Ms. Boczylo disappeared. The appellant's statement proffered an alibi that, if true, would [page282] lead the police to conclude that he had not been involved with Ms. Boczylo after he saw her in the hallway. That statement also contained very precise detail: Ms. Boczylo gave him a glass of water while he stood in the hallway; he told her not to worry as Enright was just drunk; after listening to the argument about two minutes, he said he was going home and did so; he arrived home at about 12:30 a.m. while his mother was still up.

[72] If the jury disbelieved the appellant's statement, they could ask themselves why the appellant would tell such detailed and specific lies to the police investigating her death. The fact the statement was made in circumstances prior to the appellant being aware he was a suspect and its specific reference to time is evidence from which a jury could draw an inference that the appellant fabricated his statement in order to mislead the police and to divert suspicion from himself. Thus, the preliminary requirement for allowing the Crown to introduce the statement into evidence was met. (2) What is the effect of the trial judge's omission to charge the jury on fabrication?

[73] Given the Crown's closing and the trial judge's repetition of it in his charge, the circumstances warranted an instruction on fabrication. In particular, the members of the jury should have been cautioned that mere disbelief of the appellant's statement did not entitle them to infer that the appellant was guilty of the crimes with which he was charged without first being satisfied of two things: independent evidence of fabrication and a finding that the appellant made up his version of events because he was aware he had done what was alleged.

[74] Having regard to the fact that the trial judge did not charge on fabrication, the trial judge no doubt thought he did not have to clearly set out the difference between evidence leading only to disbelief of the accused's statement (i.e., the DNA evidence concerning the appellant's semen) and the evidence capable of constituting independent evidence of fabrication (i.e., the fact that the accused was not a suspect at the time he gave the statement and the detailed nature of the statement respecting time). As Doherty J.A. observed in R. v. Teske, 2005 CanLII 31847 (ON CA), [2005] O.J. No. 3759, 202 O.A.C. 239 (C.A.), at para. 84, Canadian courts alone have developed an elaborate and confusing set of instructions to be given to juries when charging on "consciousness of guilt".

[75] I would also note that since O'Connor, the Supreme Court of Canada has rendered its decision in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, [2006] S.C.J. No. 57. In that case, Charron J. held [page283] that in deciding whether a hearsay statement should be admitted for the truth of its contents, the relevant factors in determining admissibility should not be categorized in terms of threshold and ultimate reliability, nor should the presence of corroborating evidence be restricted only to circumstances surrounding the making of the statement. Instead, both the circumstances existing at the time the statement is made and any other indicators of reliability should be considered. One reason she gave, at para. 100 of her reasons, is this: "It has proven difficult and at times counterintuitive to limit the inquiry to the circumstances surrounding the making of the statement." In addition, she rejected the rationale that it would involve "bootstrapping" to admit the statement based on other evidence that was shown to be reliable.

[76] During oral argument in this appeal, the appellant's counsel was asked whether the rationale articulated in Khelawon meant that the rules respecting fabrication should be reconsidered. Counsel chose not to address that issue and it was not pursued. Thus, I leave that issue for another day. For purposes of this appeal, the trial judge was not excused from explaining to the jury the requirement of independent evidence of fabrication and that, although it was for the members of the jury to decide, such evidence could be found in the circumstances surrounding the making of the statement.

[77] The trial judge also had to instruct the jury it must find the appellant made up his version of events because he was aware of doing what was alleged. In this regard, the trial judge's W. (D.) instruction and his repeated instruction to the members of the jury that they must consider all of the evidence goes some way to attenuating his omission in this regard.

[78] More recently, in R. v. Figueroa, 2008 ONCA 106, [2008] O.J. No. 517, 233 O.A.C. 176 (C.A.), Doherty J.A. expanded on the role of post-offence conduct and the inferences that the trier of fact may draw in relation to such evidence at paras. 33-34:

Post-offence conduct, including lies to the police, is a kind of circumstantial evidence. The jury is asked to infer the existence of a fact in issue, e.g. the identity of the perpetrator, from post-offence conduct committed by the accused, e.g. lies to the police. The inference is permissible only if, based on human experience and common sense, that inference is a reasonable one. . . .

As a matter of human experience and common sense, Figueroa's lies to the police were reasonably capable of supporting the inference that he was criminally involved in Mrs. Wong's death. A reasonable jury could infer that Figueroa lied to the police as to his whereabouts on February 11 because he was involved in Mrs. Wong's death. . . . [page284]

[79] So too, here, as a matter of human experience and common sense, the appellant's lies to the police were reasonably capable of supporting the inference that he was involved in criminal activity respecting Ms. Boczylo. While the appellant's statement, when considered with the rest of the Crown's case, cried out for an explanation, none was forthcoming. Rather, the defence position was at least partly maintained by the appellant's mother's evidence at trial. The combined effect of the Crown evidence created a powerful inference that Ms. Boczylo did not engage in consensual sex with the appellant: the expert evidence concerning the shoeprint, the fingerprint evidence, the DNA evidence, the evidence in the 39-year-old appellant's statement to the police that he and the 18-year-old victim were bare acquaintances and the unlikelihood that an interloper severely beat Ms. Boczylo on the very same night. That inference, in turn gave rise to a compelling inference of a motive for murder.

[80] Accordingly, while it would clearly have been preferable for the trial judge to charge the jury on fabrication, I am of the view that the verdict would inevitably have been the same. I would not give effect to this ground of appeal. (vi) The application of the appellant's statement to identify him as being involved in the murder

[81] The appellant also submits that the trial judge was obliged to instruct the jury that the appellant's false statement could only serve to identify him as being involved in a sexual assault and the trial judge was required to instruct the jury that it could not be used in relation to whether he was involved in Ms. Boczylo's murder.

[82] In Figueroa, at paras. 35-37, Doherty J.A. observed that there are occasions when post-offence conduct may reasonably support an inference that an accused was involved in criminal conduct but may provide no reasonable inference as to the nature of that conduct or the accused's state of mind at the relevant time. He noted that in R. v. White (1998), 1998 CanLII 789 (SCC), 39 O.R. (3d) 223, [1998] 2 S.C.R. 72, [1998] S.C.J. No. 57, Major J. described the circumstances in which the jury should be told that the accused's after-the-fact conduct has no probative value as to the nature of his participation or state of mind. Those circumstances are most likely to arise when, as in R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, [1994] S.C.J. No. 5, the accused admits committing the actus reus of a criminal act but has denied a specific level of culpability for that act or has denied committing some related offence arising from the same set of facts. In those [page285] cases, the participation of the accused in the culpable event is not in issue. Rather, it is the legal significance of that participation that is in issue.

[83] In this case, the participation of the appellant in Ms. Boczylo's death was always in issue. The appellant never formally admitted having sexual relations with Ms. Boczylo pursuant to s. 655 of the Criminal Code, R.S.C. 1985, c. C-46 although his counsel, in oral submissions at trial, did suggest that consensual sexual relations had taken place. In this context, the jury was entitled to consider the appellant's statement on the question of motive. The person who committed the sexual assault had a motive to kill in order to cover-up the sexual assault and prevent Ms. Boczylo from going to the police. The identity of the person who committed the sexual assault and the person who killed Ms. Boczylo were also linked by proximity in time.

[84] I would reject the appellant's submission that his statement could not be used as a piece of circumstantial evidence with respect to the identity of the person who killed Ms. Boczylo. (vi) The relevance of the appellant's statement to the issue whether he acted with the requisite intent for murder

[85] The appellant's last submission in relation to the manner in which the trial judge dealt with the appellant's statement in his charge is that the existing jurisprudence required the trial judge to instruct the jury that the appellant's false statement was of no relevance on the issue whether he had acted with the requisite intent for murder. As discussed in Teske, at para. 85, "[s]ome after-the-fact conduct will, as a matter of common sense and human experience, when viewed in the context of the entirety of the evidence, be reasonably capable of supporting an inference as to an accused's state of mind at the time of the homicide in issue" (citations omitted).

[86] Here, the evidence of Ms. Boczylo's injuries, particularly the evidence that the haematoma on her head was inconsistent with being left in the water, the placement of her body face down in the water with the result that she drowned, and the leaving of it there to decay, would, as a matter of common sense, lead to the reasonable inference that the person who did so meant to cause her death. This evidence, together with the appellant's false statement, were relevant considerations for the jury in assessing whether the appellant acted with the requisite intent for murder. Also, this evidence goes to motive, which can also be used as evidence of intent. [page286]

[87] For all these reasons, I would not give effect to the appellant's submission that the trial judge erred in his charge to the jury respecting the use it could make of the appellant's statement. (b) Did the trial judge fail to adequately review the position of the defence?

[88] The trial judge provided counsel with an outline of his charge prior to delivering it. Despite an invitation to do so, defence counsel did not provide the trial judge with a summary of his position.

[89] On appeal, defence counsel advanced the following three main arguments in support of his position that the appellant had not received a fair trial because of the trial judge's failure to adequately review the defence position:

(1) The trial judge failed to identify the pieces of evidence supporting the defence position;

(2) the trial judge failed to express in plain language that the defence position was essentially that there was an absence of evidence to make out the Crown's case; and

(3) the trial judge improperly relied on defence counsel's failure to submit a detailed position to avoid responsibility to fully and fairly review that position.

[90] In brief, my response to these arguments is as follows:

(1) Reversible error based on the omission of the trial judge to review the evidence in his charge occurs, ". . . only where the single item of evidence in question is the foundation of the defence": see R. v. Daley, 2007 SCC 53, [2007] S.C.J. No. 53, 226 C.C.C. (3d) 1, at para. 55. Here, the trial judge did review the evidence on which the foundation of the defence rested, namely, the evidence of Ms. Pomeroy and the appellant's statement. The trial judge's omission to review other parts of the defence closing suggesting that the Crown had not proven its case beyond a reasonable doubt was not an error because those submissions were based on speculation.

(2) Similarly, the trial judge was not obliged to review the alleged gaps in the Crown's case because they were either speculative or did not relate to what the Crown was required to prove. The trial judge's repeated instruction to [page287] consider all the evidence and to consider it as a whole was sufficient to suggest that the absence of evidence had to be factored into the reasonable doubt assessment: see R. v. Archer, 2005 CanLII 36444 (ON CA), [2005] O.J. No. 4348, 202 C.C.C. (3d) 60 (C.A.), at para. 40.

(3) Trial judges are entitled to expect the assistance of counsel. Counsel's lack of assistance does not, of course, absolve the trial judge of the duty to present the defence position to the jury. An appellate court's assessment of the fairness of the charge is not, however, restricted to what the trial judge said about the defence position. It is the charge as a whole that must be considered. When considered as a whole, despite its manifest facial imbalance, the charge was not substantively unfair to the appellant because it allowed the jury to appreciate the issues and the defence presented. I will elaborate. (i) Did the trial judge fail to identify a piece of evidence that was the foundation for the defence position?

[91] Case law has established that, while the trial judge's charge must be balanced, even-handed and present fairly the positions of the Crown and defence, no set format is required as to how that is accomplished: see R. v. Varcoe, 1996 CanLII 1129 (ON CA), [1996] O.J. No. 334, 104 C.C.C. (3d) 449 (C.A.), at p. 453 C.C.C. Thus, simply because the trial judge did not specifically review the evidence in support of the defence position when outlining that position in the charge does not render the charge imbalanced. It is the charge as a whole that must be considered.

[92] The foundation of the defence position was the evidence of Ms. Pomeroy and the appellant's statement. While the trial judge did not review this evidence when setting out the defence position, he did refer to it numerous times in his charge. For example, he referred to the appellant's statement and the evidence of Ms. Pomeroy when instructing the jury on whether the appellant caused Ms. Boczylo's death unlawfully. Reference to this evidence was repeated when the trial judge reviewed the state of mind required for murder and when he reviewed the evidence of whether the appellant committed a sexual assault on Ms. Boczylo. The trial judge also reviewed the evidence of Ms. Pomeroy in detail in his seriatim review of the evidence at trial.

[93] I turn now to the position of the defence respecting the absence of evidence. In his closing, defence counsel made much of [page288] the fact that P.C. Wilton observed no bruising or scratches on the appellant when he gave his statement. He emphasized that such injuries would have been obvious to an experienced investigator such as Wilton, particularly since the appellant was in shorts and a t-shirt when he arrived at the police station. If this evidence had been reviewed with the jury, its effect would likely have been substantially weakened for the defence. For example, after reviewing this point with the jury, the trial judge would also have had to draw the jury's attention to the absence of evidence in respect of the appellant's attire on the night in question. He could have been wearing long sleeves, which would have protected him from receiving bruises or scratches from the deceased. The trial judge would also have been required to identify any evidence describing the height and weight differential between the parties. In any event, the trial judge's failure to review this is insufficient on its own to set aside the convictions, particularly since this point had already been stressed to the jury during the defence closing.

[94] The same can be said of Ms. Pomeroy's evidence that the appellant was not wet when he returned home. This evidence was also stressed to the jury during the defence closing. In addition, the strength of this submission is negligible since Ms. Boczylo's body was found in shallow water and there was no evidence as to why the appellant could not simply have removed his shoes and socks and rolled up his pant legs when putting the body in the water.

[95] Moreover, the defence closing was largely founded on speculative theories: (a) the presence of sperm in Ms. Boczylo's stomach indicated that the sexual contact was consensual; (b) Harpell as an alternative perpetrator; (c) death by drowning was due to suicide; and (d) cause of death from "immersion syndrome". If the trial judge had reviewed these speculative theories with the jury, he would have likely confused the jury about the standard of proof beyond a reasonable doubt, which is to flow from the presence or absence of evidence, and cannot be based on something else, such as speculation: see R. v. Carrière, 2001 CanLII 8609 (ON CA), [2001] O.J. No. 4157, 159 C.C.C. (3d) 51 (C.A.), at para. 35. I will elaborate below.

[96] Presence of sperm in the stomach: At the end of trial, faced with the DNA evidence of the appellant's semen in Ms. Boczylo's mouth and stomach, defence counsel submitted to the jury that the appellant had had consensual sex with her. The basis for his submission was that, as Ms. Boczylo had the appellant's semen in her mouth and stomach, she had swallowed it, that any swallowing was done voluntarily and she had therefore consented to [page289] oral sex. There is no evidentiary support, medical or otherwise, for the proposition that if all semen has not been spit out consensual oral sex has occurred.

[97] Harpell was the perpetrator: In his address to the jury, defence counsel pointed to Harpell as an individual who might have been responsible for Ms. Bocyzlo's death. He mentioned that Harpell committed suicide in February 2004 and asked whether the timing of the suicide might be related to the prosecution. However, given that there was no evidence connecting Harpell in any way to the death of Ms. Boczylo, it would have been inappropriate for the trial judge to review this defence theory with the jury.

[98] Death by suicide: On numerous occasions during his closing argument, defence counsel emphasized his position that the Crown had failed to prove Ms. Boczylo's death resulted from being intentionally drowned. In particular, defence counsel relied on the absence of injuries below Ms. Boczylo's waist or on her neck, stating that if she had been dragged or pulled, she would normally have had bruises on those parts of her body. There was also an absence of any evidence of screams heard by anyone in the surrounding area. Further, the evidence was that her injuries were not so serious that they would have required hospitalization. Lastly, he suggested that the set of keys located in the pocket of the deceased's track pants suggested that she voluntarily chose to leave the apartment that night for some reason and lock the door behind her. In essence, defence counsel relied on this evidence to argue that Ms. Boczylo voluntarily entered the water on the evening in question and drowned herself.

[99] This position stands in stark contrast to the evidence provided by Dr. Hunt, who testified that the cause of death was drowning associated with blunt-force trauma. The blunt-force trauma was characterized by the doctor as "significant", being present in the upper part of the body, the head area and on the joints of the shoulders. He also observed bruising to Ms. Boczylo's face and significant abrasions and bruising on the back of the left arm and some of her fingers, consistent with offensive wounds received in fighting off her attacker. Dr. Hunt confirmed that the wounds and injuries to Ms. Boczylo's body were not consistent with having been sustained as a result of being in the river after her death by drowning. These were not self-inflicted injuries. The defence failed to acknowledge such evidence, which established overwhelmingly that the death by drowning was intentional.

[100] Vagal reflux: Defence counsel also advanced the position that Ms. Boczylo's death may have been the result of "immersion syndrome", involving vagal stimulation which can cause the [page290] heart to simply stop. He suggested that this might be a plausible explanation for how she drowned in shallow water. He also suggested that this reaction might arise from extreme fright, which also causes a vagal reflux. There was no evidence that Ms. Boczylo was conscious when she entered the water. If she was, defence counsel's submissions implicitly raised the question, "Who caused the extreme fright?"

[101] The position advanced by the defence on these points was entirely speculative. In such circumstances, the trial judge was not obliged to review defence counsel's submissions with the jury. For these reasons, it is my view that the trial judge did not fail to identify a piece of evidence that was the foundation of the defence position. (ii) Did the trial judge fail to express in plain language that the defence position was essentially that there was an absence of evidence to make out the Crown's case?

[102] If this is not a situation where the trial judge failed to identify evidence, the appellant submits that the trial judge omitted to emphasize for the jury the absence of evidence to make out the Crown's case. I would reject this submission for four reasons.

[103] First, in reviewing the position of the defence, the trial judge did tell the jury that the defence position was that the Crown had not established each essential element of the offence of first degree murder beyond a reasonable doubt. He also alluded to this position in other parts of the charge. For example, at one point the trial judge noted: "There is no statement, written record or witnesses who state that Mark Alan Pomeroy intended to kill Jennifer Boczylo or cause her bodily harm that he knew was likely to cause her death, and whether death ensued or not."

[104] Second, the absence of evidence relied upon by the defence was either speculative or did not represent an essential element of the case that the Crown was required to prove. I have already discussed most of the alleged omissions in the charge respecting the defence position above. Other evidence that the appellant submits is a gap in the Crown's case does not form part of the essential elements of the case or relate to the issue of identity and, therefore, cannot be considered a gap.

[105] For example, the appellant points out that the trial judge did not tell the jury, as defence counsel did in his address, that Ms. Boczylo's body was found 200 yards upstream from the rear of her apartment complex and did not have any injuries to the lower part of her body, making it unlikely that she had been [page291] dragged to the water. This "gap" dealt with the absence of any explanation of how Ms. Boczylo's body got into the water. It related to the submission that she voluntarily entered the water and killed herself. As noted, on any realistic view of the evidence, the medical evidence as to the nature and number of the injuries sustained by the deceased, particularly the blow to the head, virtually ruled out the possibility of suicide. Otherwise, the alleged gap in the Crown's case served no function in that it did not relate to what the Crown was required to prove, namely, the identity of the murderer and the essential elements of the offence. As a result, the trial judge had no obligation to review this evidence in the charge.

[106] Third, the trial judge's repeated direction to the jury to consider all the evidence may be relied upon as an instruction to the jury to account as well for the absence of evidence available to make out the offence. In Archer, Doherty J.A. determined that the trial judge did not commit reversible error by failing to tell the jury that reasonable doubt could arise from the absence of evidence. Rather, he found that the trial judge's reference to "the evidence considered as a whole" was sufficient to suggest that gaps and silences in the evidence must be factored into the reasonable doubt assessment: see Archer, at para. 40. Similarly, in this case, the trial judge instructed the jury on multiple occasions to consider all the evidence, or the "cumulative effect" of the evidence, when reviewing each element of the offence. Moreover, in his recharge to the jury the trial judge stated that the omission of evidence could give rise to a reasonable doubt; that charge must be considered as a whole.

[107] Fourth, the trial judge told the jury that they were to rely on their own recollections in deciding the case. These instructions further temper concerns about omissions from the summary of evidence for the defence: see Daley, at para. 80.

[108] For these reasons, the trial judge's omission to refer to these aspects of the defence submissions did not constitute an error. The cumulative effect of defence counsel's submissions and the trial judge's instructions were sufficient to convey to the jury that gaps and silences in the evidence must be factored into their assessment. (iii) Did the trial judge abdicate his responsibility to fully and fairly review the position of the defence?

[109] As noted, the trial judge requested that the Crown and defence submit their positions in writing in advance of the charge. Defence counsel declined to comply with this request, [page292] stating simply that it was his position that the Crown had failed to prove the case beyond a reasonable doubt. Crown counsel quite clearly provided a detailed position which was subsequently reviewed with the jury by the trial judge in the charge.

[110] The trial judge's charge respecting the position of the defence was as follows:

The defence position simply put is that the Crown has not met the onus upon it in that it has not established beyond a reasonable doubt each of the essential elements of the offence to enable you to reach a verdict of guilty on either of the charges against Mr. Pomeroy as described in Counts 1 and 2. He went on to refer to the appellant's statement in which he indicated that he was home by midnight or shortly thereafter and provided a W. (D.) pattern instruction. He concluded by emphasizing that the burden was on the Crown to prove that the appellant had committed the offences beyond a reasonable doubt. Finally, the trial judge cautioned the members of the jury they should not consider individual pieces of evidence in isolation and told them that the Crown would not have discharged its burden of proof unless they were satisfied beyond a reasonable doubt that the guilt of the appellant was the only rational conclusion to be drawn from the evidence.

[111] After the trial judge's charge to the jury, defence counsel complained that although the trial judge had referred to all the evidence in support of the Crown's position, the trial judge had failed to summarize the evidence in support of the defence position, "that would make it unlikely or inconsistent that it was an intentional killing or the reasons why it would be unlikely to have been a non-consensual sexual assault". Defence counsel did not assist the trial judge by specifying what aspects of the evidence in support of the defence position the trial judge had failed to summarize. The trial judge declined to recharge the jury. However, he later recharged the jury that the omission of evidence could also give rise to a reasonable doubt.

[112] The appellant submits that the trial judge failed to account for the perceived imbalance that would be created by reviewing, in great detail, the evidence supporting the Crown's position and, following that, by defining the defence position as simply that the Crown had failed to prove its case beyond a reasonable doubt.

[113] The trial judge has a general obligation in giving the charge to fairly and adequately outline the theories or positions of each party: see R. v. Cooper, 1979 CanLII 63 (SCC), [1980] 1 S.C.R. 1149, [1979] S.C.J. No. 139. The practice of requiring counsel to submit their theories in writing to the trial judge in advance of their [page293] addresses to the jury has received judicial approval: see R. v. B. (O.), 1995 NSCA 220, [1995] N.S.J. No. 499, 103 C.C.C. (3d) 531 (C.A.), at p. 551 C.C.C. Generally, the trial judge should ensure that his descriptions of the competing theories at trial are of approximately the same length so there is no perceived imbalance: see B. (O.), at p. 551 C.C.C. However, where the case for the Crown is more complex and the defence is simple, it is inappropriate to measure the fairness of the charge by reference to quantity: see R. v. Olsen, 1999 CanLII 1541 (ON CA), [1999] O.J. No. 218, 131 C.C.C. (3d) 355 (C.A.), at para. 22.

[114] The fact that the trial judge spends "more time" in reviewing the evidence of the Crown will not compromise the fairness of the charge where the Crown has called more witnesses: see R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652, [1987] S.C.J. No. 22. In Thatcher, the Supreme Court rejected the appellant's submission that the trial judge's charge was unfair as it failed to adequately summarize the defence position. At pp. 702-703 S.C.R., the court stated:

The defence evidence was simple, however, and the Crown's case was complex, relying on circumstantial evidence from a large number of witnesses. It is simply inappropriate to try to measure the fairness of the charge by reference to quantity. . . . . .

In my view, the trial judge gave a fair picture of the defence. As Lord Goddard C.J., in R. v. Clayton-Wright (1948), 33 Cr. App. R. 22 at p. 29, states, a trial judge is not required "to paint in the details or to comment on every argument which has been used . . . .".

[115] In this case, as in Thatcher, the case for the Crown relied on circumstantial evidence from a number of witnesses. In contrast, the position of the defence was straightforward and the evidence in support of it limited to calling one relatively brief witness, the appellant's mother. As a result, the perceived imbalance in the charge was more of a quantitative imbalance than a qualitative one.

[116] Appellate courts must adopt a functional approach to reviewing jury charges. The purpose of such review is to ensure that juries are properly -- not perfectly -- instructed. In conducting an appellate review, the Supreme Court emphasizes in Daley, at para. 57:

The extent to which the evidence must be reviewed "will depend on each particular case. The test is one of fairness. The accused is entitled to a fair trial and to make full answer and defence. So long as the evidence is put to the jury in a manner that will allow it to fully appreciate the issues and the defence presented, the charge will be adequate". (Citations omitted) [page294]

[117] The functional approach also requires the appellate court not to divorce the jury charge from the greater context of the trial. The comments of counsel during their addresses, including comments on legal issues should also be considered in assessing whether the charge is adequate: see Daley, at para. 58. Here, despite its facial imbalance, the trial judge's charge to the jury, when considered together with the closing addresses of counsel, provided the jury with an appreciation of the factual issues to be resolved, the evidence relating to the issues, the proper law to be applied and the positions of the parties.

[118] In addition, the Crown's evidence at trial established a compelling circumstantial case against the appellant. The fact that the appellant did not testify left unexplained a number of incriminating circumstances, including a shoe print on the broken door to Ms. Boczylo's apartment which was consistent with shoes worn by the appellant and the injuries to her mouth and body indicating that the sexual contact was not consensual nor caused by being in the water. The trial judge's charge to the jury on the defence position was circumscribed by the appellant's failure to point to any evidence explaining much of the incriminating evidence tendered by the Crown. Defence counsel's address skilfully attempted to raise a reasonable doubt but, as I have indicated, involved a great deal of speculation.

[119] Overall, in the context of the trial, the charge was not unfair. (c) Did the trial judge err in not putting the "defence" of intoxication to the jury?

[120] Intoxication would not be relevant to constructive first degree murder. Thus, the question of whether intoxication should have been put before the jury as a defence is only relevant insofar as there was a burden on the Crown to prove the intent for murder. If the jury had been charged on intoxication, and assuming that it had found the appellant was the person who applied blunt-force trauma to the victim's head and placed her face down in the water, it would have had to determine whether the appellant was so intoxicated that he could not foresee that she would drown. If the jury had had a reasonable doubt on this issue it could only have found the appellant guilty of manslaughter.

[121] The position of counsel for the appellant is that the trial judge erred in failing to instruct the jury respecting intoxication because there was considerable evidence from which the jury could infer that the appellant was intoxicated, including:

-- the appellant told police he was at a bar for approximately 12 hours; [page295]

-- the appellant did not deny he had been drinking;

-- the appellant's mother had cashed his welfare cheque and given him money that day but he had to borrow $40 from her the next day;

-- the appellant's friend, Enright, was drunk when he returned home with the appellant; and

-- the appellant vomited after arriving at 19 Front Street.

[122] At the pre-charge conference the defence asked that the instruction that a sane and sober person intends the consequence of his acts be removed. The trial judge softened his charge in this regard.

[123] The defence chose not to raise the weaker alternative defence of intoxication so as to not prejudice his main defence, which was that of alibi. There should typically be reluctance to "look at defence counsel's tactical trial decisions through the rear view mirror of appellate review and in doing so second guess the appellant's trial counsel, unless there are compelling reasons to do so": see R. v. Murray (1994), 1994 CanLII 1692 (ON CA), 20 O.R. (3d) 156, [1994] O.J. No. 2099, 93 C.C.C. (3d) 70 (C.A.), at pp. 84-85 C.C.C. Further, as stated in R. v. Leary, 1977 CanLII 2 (SCC), [1978] 1 S.C.R. 29, [1977] S.C.J. No. 39, at p. 60 S.C.R., it would not be consistent with the proper administration of justice to allow a new trial for the purpose of making it possible to raise an alternative ground as a defence.

[124] A further question is whether an evidentiary basis existed to put the defence of intoxication to the jury. An evidentiary basis is critical because it makes no sense for a trial judge to invite the jury to consider defences for which there is no evidence or that cannot reasonably be inferred from the evidence: see R. v. Squire, 1976 CanLII 26 (SCC), [1977] 2 S.C.R. 13, [1976] S.C.J. No. 50, at p. 19 S.C.R. There is, to some degree, an evidentiary burden imposed on the accused in this respect. As noted by Finlayson J.A. in R. v. McKinnon, 1989 CanLII 9924 (ON CA), [1989] O.J. No. 609, 33 O.A.C. 114 (C.A.), at para. 24:

While it is clear that the burden of proving guilt beyond a reasonable doubt always rests on the Crown, there must be some point in a trial where absent any evidence in the existing trial record, the accused must submit evidence to form some factual basis for a defence of diminished capacity or capability based on intoxication. This is an evidentiary burden . . . . It is not the responsibility of the trial judge to conjure up defences which have no basis in fact in the evidence. (Citations omitted) [page296]

[125] In Daley, at para. 44, Bastarache J., speaking for the majority, identified the "threshold" for instructing juries on the intoxication defence as follows:

The threshold for instructing juries on intoxication was set out in Robinson, at para. 48: "[B]efore a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that its effect might have impaired the accused's foresight of consequences sufficiently to raise a reasonable doubt" (emphasis deleted). This is the threshold for instructing juries on advanced drunkenness.

[126] In speaking of intoxication that impairs the accused's foresight of the consequences of his or her act sufficiently to raise a reasonable doubt as to whether an accused had the mens rea necessary for a specific intent offence, Bastarache J. observed, at para. 42:

It is important to recognize that the extent of intoxication required to advance a successful intoxication defence of this type may vary, depending on the type of offence involved . . . .

[F]or certain types of homicides, where death is the obvious consequence of the accused's act, an accused might have to establish a particularly advanced degree of intoxication to successfully avail himself or herself of an intoxication defence of this type.

[127] The evidence provided by P.C. Wilton and Sgt. Menard was that the appellant had been at the Sherwood drinking on the date in question. This information came from statements provided by the appellant's companions Enright and Harpell. Neither Enright nor Harpell testified at trial and the statements they provided to the police were not introduced as evidence. None of the employees or management at the Sherwood testified respecting the amount of alcohol consumed by the appellant. Neither Wilton nor Menard were able to provide any information respecting the quantum of alcohol consumed by the appellant on the date in question.

[128] Frazier Frackleton, a tenant in the same apartment building as Ms. Boczylo at the time of her death, testified that at approximately 10:00 or 10:30 on the evening of August 1, 2002, he heard someone vomiting in the neighbouring apartment. He further testified that, at approximately 11:00 p.m., he confronted his neighbour, Enright, who had been making noise outside his apartment door. He stated that Enright "was drunk" at this time.

[129] Ms. Pomeroy testified that she had cashed the appellant's welfare cheque in the amount of approximately $140 that afternoon because he owed her $100. She gave the appellant the balance before he went out for the evening around 7:00 p.m. She stated that he had to borrow $40 from her the next day.

[130] Upon his return home shortly after midnight, Ms. Pomeroy testified that she had a conversation with the appellant for [page297] approximately ten minutes, in which they discussed what he does with his money. He went to the fridge to get a drink. He indicated to her that he was "sick". When asked whether she thought the appellant had been drinking, she responded by stating: "I was so mad I couldn't smell anything, because I don't ... I broke my nose. I don't have a good sense of smell, and I don't know. I was too mad to smell his breath anyway."

[131] In his statement to the police, the appellant testified that he had spent approximately 12 hours in the bar, arriving there at 12:30 p.m. in the afternoon. He indicated that Harpell was "buying drinks" but later stated that he could not drink because he was on probation.

[132] This is the totality of the evidence that the trial judge would have had before him in considering the defence of intoxication.

[133] I am not satisfied that this limited evidence on intoxication was such that it could support the inference that the effects of alcohol consumption might have impaired the appellant's foresight of consequences sufficiently to raise a reasonable doubt. No one testified as to the amount of alcohol that had been served to the appellant. There was no suggestion that the appellant's memory of the events of that evening was impaired. To the contrary, in his statement, the appellant recalled that Enright had been cut off by the bouncer at the bar and he related the events at the apartment building afterwards with precise detail. Although the appellant's mother testified that she could not say whether her son's breath smelled of alcohol or not because she had broken her nose, she did not testify that he exhibited other classic signs of alcohol impairment, such as slurred speech, glassy eyes, or difficulty walking. Rather, she testified that upon his return home the appellant appeared normal. While she said that the appellant had indicated to her that he was "sick", she did not suggest that it was due to alcohol consumption. There was also no evidence to link the spending of the appellant's money to the consumption of alcohol.

[134] Considering defence counsel's position at trial, the fact that it is obvious a person unable to move who is placed face down into water will drown, and the limited evidence respecting the appellant's alcohol consumption, I would conclude that the trial judge was not obliged to charge the jury on advanced intoxication. (d) Does the trial judge's error in the charge on reasonable doubt warrant a new trial?

[135] The appellant points out that the trial judge gave the jury the "timid juror" instruction and that decisions of this court have disapproved of this instruction in numerous cases: [page298] see R. v. Karthiresu, 2000 CanLII 6008 (ON CA), [2000] O.J. No. 309, 129 O.A.C. 291 (C.A.), at para. 8; R. v. Anderson, 2003 CanLII 31748 (ON CA), [2003] O.J. No. 3922, 179 C.C.C. (3d) 11 (C.A.), at paras. 8 and 9; R. v. Zebedee (2006), 2006 CanLII 22099 (ON CA), 81 O.R. (3d) 583, [2006] O.J. No. 2628 (C.A.), at para. 52.

[136] While the trial judge's charge contained the disapproved instruction that reasonable doubt "must not be a doubt conjured up in the mind of a timid or irresponsible juror to avoid doing their duty", he further instructed them:

When the totality of the evidence that you find credible convinces your mind and satisfies your conscience, and you are sure of the guilt of the accused, you should convict because proof beyond a reasonable doubt has been achieved. But if the totality of the evidence falls short of such a persuasion in any way, then proof beyond a reasonable doubt has not been made out and you must acquit.

If on the whole of the evidence you believe the accused is probably or likely guilty, that is not sufficient, and in such circumstances proof beyond a reasonable doubt has not been established and you must acquit.

[137] A fair reading of the charge demonstrates that it communicated to the jury the meaning of reasonable doubt. The use of the timid juror instruction did not compromise the jury's understanding of reasonable doubt in this case. IV. DISPOSITION

[138] For the reasons I have given, I would dismiss the appeal.

Appeal dismissed.