CITATION: R. v. Paul, 2009 ONCA 443
DATE: 20090528
DOCKET: C42878
COURT OF APPEAL FOR ONTARIO
Doherty, Armstrong and Juriansz JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Adrian Paul
Appellant
Keith E. Wright, for the appellant
Alex Alvaro, for the respondent
Heard: May 7, 2009
On appeal from the conviction entered by Justice W.B. Trafford, sitting with a jury, of the Superior Court of Justice dated March 29, 2004.
By-the-Court:
[1] The appellant was charged with first degree murder in 1998. He was convicted in 1999. This court ordered a new trial in 2002: R. v. Paul (2002), 2002 CanLII 13259 (ON CA), 170 C.C.C. (3d) 107. The appellant was convicted of first degree murder on the re-trial in March 2004. He appealed alleging several errors at trial. He also contended that the transcript of the trial proceedings contained so many errors that he was effectively denied a meaningful right of appeal based on a complete trial record.
[2] The court dismissed the appeal at the end of oral argument with reasons to follow. These are those reasons.
[3] Identity was the only issue at trial. Much of the evidence is summarized in the earlier judgment of this court. For present purposes, it is sufficient to outline the case in broad terms. It was the theory of the Crown that the deceased was abducted by the appellant while she was in his apartment building with a co-worker soliciting subscribers for a local daily newspaper. On the Crown’s theory, the appellant sexually assaulted the deceased, strangled her, and at some point later that evening deposited her body in the stairwell several feet from the apartment where he lived. The appellant did not testify.
[4] The Crown’s case relied primarily on expert evidence interpreting DNA samples retrieved from stains containing semen found on two articles of clothing worn by the deceased. The semen samples were very small. According to the expert’s evidence, the appellant’s DNA was a match at six loci and he could not be excluded as a contributor at the remaining three loci tested. The expert opined that he could not exclude the appellant as the donor of the sperm found on either item of clothing. A second expert gave statistical evidence suggesting only a very slight possibility that someone other than the appellant had deposited the sperm.
[5] The Crown also led evidence of a statement made by the appellant to a police officer a few hours after the discovery of the deceased’s body. The police were canvassing the residences in the apartment building hoping to get some information that would assist in the investigation of the homicide. The appellant was shown a picture of the deceased. He told the police officer that he had never seen the deceased before and that she had not canvassed his apartment. The Crown contended that there was circumstantial evidence suggesting that the deceased had canvassed the appellant’s apartment and that the DNA evidence showed that he had been in very close contact with her shortly before she died. The Crown urged the jury to find that the appellant had deliberately lied to the officer investigating the deceased’s death to avoid his own responsibility for the homicide.
[6] The Crown also placed reliance on the location where the body was found. The body was found in the stairwell a very short distance from the appellant’s apartment. The positioning of the body also suggested that the person who had placed the body there had entered the stairwell from the sixth floor or higher. The appellant lived on the sixth floor.
[7] The defence did not call any expert evidence challenging the Crown’s DNA evidence. Defence counsel did, however, vigorously challenge that evidence on cross-examination. The defence contended that the Crown expert had changed important parts of his evidence from his earlier testimony on a voir dire to determine admissibility. The defence also contended that the Crown expert had approached his analysis in a way that gave the Crown the benefit of any doubt the expert had in interpreting the results of the tests. Defence counsel stressed both features of the cross-examination in his closing. No objection was taken on appeal to the manner in which the trial judge put the position of the defence or to his review of the substance of the expert evidence.
THE GROUNDS OF APPEAL
(i) The Corbett Application
[8] At the conclusion of the Crown’s case, the defence brought an application for an order preventing the Crown from cross-examining the appellant on his criminal record should the appellant testify (the “Corbett” application). Counsel indicated that the defence would call the former husband of the deceased to demonstrate that he had a motive and the opportunity to commit the homicide. Counsel did not provide details of the appellant’s proposed evidence except to indicate that the appellant would offer some explanation for the statement he gave to the police officer a few hours after the body was discovered. It would seem that the appellant would admit that he had not been entirely truthful with the police officer but would offer an explanation centered on a mistrust of the police based on his prior experience with the police.
[9] The appellant was convicted of indecent assault in 1981 and received a suspended sentence. He was convicted in August of 1996 of sexual assault, assault causing bodily harm, uttering threats, forcible confinement and overcoming resistance to the commission of a criminal offence. All of the 1996 charges arose out of a single event. The appellant received a sentence of 2 years less a day and 3 years probation. He was released from custody, having completed the custodial portion of his sentence, in December 1997, about 3 months before the murder.
[10] In careful reasons, the trial judge acknowledged his discretion to limit or prohibit entirely cross-examination of the appellant on his prior record. The trial judge recognized that the exercise of that discretion depended on a balancing of the potential assistance cross-examination on the record could provide the jury when assessing the appellant’s credibility against the potential prejudice to the appellant should the jury be informed that he had been convicted in 1996 of serious criminal offences that bore some resemblance to the allegations in this case.
[11] The trial judge examined the relevant authorities from this court and the Supreme Court of Canada, identified the operative principles, reviewed the salient facts and applied the principles to those facts. In oral argument, counsel for the appellant specifically disavowed any claim that the trial judge had misstated the principles or misapprehended the evidence.
[12] The trial judge ultimately held that the Crown could not cross-examine the appellant on his 1981 conviction but that he could cross-examine on the 1996 convictions. The trial judge further held that there could not be any reference to the sexual nature of the 1996 assault and that it should be described only as an assault. The trial judge further held that the Crown could cross-examine on the penalties imposed and on the fact that the appellant was on probation and parole at the time of this homicide.
[13] Absent an error in principle or a misapprehension of material evidence, this court can interfere with a trial ruling based on the exercise of judicial discretion only if that exercise is unreasonable: see R. v. G. (E.P.) (1994), 1994 CanLII 8721 (ON CA), 89 C.C.C. (3d) 176 at 180 (Ont. C.A.). Counsel for the appellant contends that allowing cross-examination of the 1996 convictions was so prejudicial and of so little probative value on the question of the appellant’s credibility that the trial judge’s decision is properly characterized as unreasonable. Counsel contends that the ruling permitting cross-examination, even of the modified record, flung open the door to forbidden propensity reasoning while providing little or no insight into the appellant’s credibility.
[14] We cannot agree with this submission. Cross-examination of a witness, including an accused, on his or her criminal record is presumptively admissible. A judge may, in the exercise of his or her discretion, disallow cross-examination where he or she is satisfied that despite the safeguards available in the trial process, most especially a proper jury instruction, the potential prejudice flowing from that cross-examination is sufficient to justify exclusion of cross-examination on the record. As Dickson C.J.C. observed in R. v. Corbett (1988), 1988 CanLII 80 (SCC), 41 C.C.C. (3d) 385 at 399-401, trial by jury assumes that as a general rule, juries will follow limiting instructions. That assumption must be given due weight when a trial judge is asked to exclude cross-examination in a “Corbett” application.
[15] We also reject the submission that because the criminal record did not involve acts of dishonesty, it could offer little, if any, assistance to the jury in assessing the appellant’s credibility: R. v. Saroya (1994), 1994 CanLII 955 (ON CA), 36 C.R. (4th) 253 at paras. 10-11 (Ont. C.A.). We do at the same time acknowledge that the nature and the timing of the 1997 convictions increased the risk of improper propensity reasoning if the jury was made aware of those convictions.
[16] Counsel also submitted that the decision of this court on the first appeal holding that the events giving rise to the 1997 convictions were not admissible as similar fact evidence should have “informed” the ruling on the “Corbett” application at the retrial. Counsel submits that as this court held that admitting evidence of the events underlying the 1997 convictions as part of the Crown’s case would carry an unacceptable risk of improper propensity reasoning, that cross-examination of the accused on the criminal record arising from those events, should he testify, must carry the same unacceptable risk.
[17] The trial judge was obviously aware of this court’s ruling and referred to it in outlining the relevant history at the outset of his “Corbett” ruling. He made no further reference to the decision in his analysis. This court’s decision on the admissibility of the events underlying the 1997 convictions as similar fact evidence and part of the Crown’s case has little, if anything, to do with the decision on the “Corbett” application. The analyses are quite different. Similar fact evidence is presumptively inadmissible. To be admissible the evidence must provide a circumstantial chain of reasoning relevant to a material issue other than reasoning through general propensity. Cross-examination of an accused who chooses to testify on his prior record is presumptively permitted. The evidence is directly relevant to his credibility as a witness. Nor, of course, does cross-examination on a criminal record permit the Crown to adduce evidence of the events underlying those criminal convictions. The trial judge was acutely aware of the potential prejudice should he permit cross-examination on the criminal record. His ruling reflects that concern. Nothing in this court’s earlier ruling on the admissibility of the similar fact evidence would provide any additional insight into the prejudice that could flow from permitting cross-examination on the 1997 convictions.
[18] The trial judge had a difficult decision to make on this “Corbett” application. While the defence had not attacked the credibility of Crown witnesses, it did propose to point the finger of guilt at a third party. No doubt, the defence would include a vigorous attack on the credibility of that person. In addition, comments made by counsel suggested that the appellant would offer some explanation for his lie to the police which would open the door to questioning on his prior involvement with the criminal justice system.
[19] The trial judge ultimately attempted to preserve the balance of fairness in the trial by permitting cross-examination on a part of the criminal record while forbidding reference to the 1981 convictions and reference to the sexual nature of the 1996 assault. These were clearly the most potentially prejudicial aspects of the appellant’s record. Given the trial judge’s decision and the deference due to it, we do not think he erred in striking the balance as he did.
(ii) The Statement Made by the Appellant to the Police
[20] Shortly after the deceased’s body was found in the stairwell of the apartment building, the police began a canvass of the residences in the building. At about 5:15 a.m., a police officer spoke with the appellant in his apartment. The appellant indicated that he had been home between 3:30 p.m. and 10:30 p.m. the previous day. He told the officer that no one had come to his door selling newspaper subscriptions and he could not identify a picture of the deceased. There was evidence that the deceased had canvassed the apartment next to the appellant’s and that she had told her colleague she would canvass the entire floor.
[21] In the course of his jury instructions on the evidentiary use that could be made of the defendant’s statement, the trial judge said:
… if, in determining what weight you will give to that part of the statement denying any contact with Ms. Ricketts, you are satisfied, on the balance of probabilities, by “other evidence” that the Crown has proven it false, the “proved falsehood” becomes another item of circumstantial evidence to be considered in the context of the evidence as a whole, on the issue of identity.
The “other evidence” relied upon by the Crown to prove the falsity of this part of the statement is the opinion of Jonathan Newman [the DNA expert] concerning the presence of the defendant’s sperm on the deceased’s clothing.
The falsehood is a “proved falsehood” if the Crown satisfies you, on a balance of probabilities, that the statement was deliberately made by the defendant for the purpose of avoiding detection as the murderer. Note, the emphasis on proved falsehood, proved deliberation and proved purpose. They must all be proven on a balance of probabilities by other evidence accepted by you. The mere rejection of a statement, or a material part of it, as false is not in itself a sufficient foundation for such an inference. …
[22] Counsel for the appellant submits that a single piece of evidence can never provide both the basis for a determination that an appellant’s statement was false and for the further determination that it was deliberately fabricated to avoid detection. Counsel submits that as the DNA evidence could not carry the burden of both factual findings, the trial judge erred in instructing the jury that if it concluded, based on the DNA evidence, that the appellant’s statement was false, it could further infer, again based on the DNA evidence, that the false statement was made deliberately by the defendant for the purposes of avoiding detection.
[23] The potential evidentiary value of false statements made by an accused turns on generally applicable principles of relevance and materiality as applied to the circumstances of the particular case. The jurisprudence cannot be read as creating arbitrary or artificial rules of admissibility applicable exclusively where the Crown asserts that a statement made by an accused was not only false but concocted to conceal involvement in the crime: see R. v. Jones (2006), 2006 CanLII 28086 (ON CA), 211 C.C.C. (3d) 4 at para. 6 (Ont. C.A.).
[24] As indicated in the leading case of R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 170 C.C.C. (3d) 365 at 377 (Ont. C.A.), where a trier of fact is satisfied that an out-of-court statement made by an accused is false, the circumstances in which the statement was made and the content of the statement may reasonably permit the trier of fact to conclude that the statement was not only false but was fabricated to conceal the accused’s involvement in the offence. The reference in O’Connor and many cases that have followed it to “independent evidence” of fabrication is intended to emphasize that a finding of fabrication does not flow automatically from a finding that the statement should be rejected as false. There must be something more in the evidence that reasonably justifies the further inference that the false statement was deliberately made for the purpose of concealing the accused’s involvement in the offence: see also R. v. Hazal (2009), ONCA 389 at paras. 11-20 (C.A.).
[25] In this case, the DNA evidence offered a basis upon which the jury could conclude that the appellant lied when he told the police he had not seen the victim. The circumstances in which he told the lie provided a further basis upon which the jury could infer that the appellant lied to cover-up his involvement in the homicide. The police were going door to door soliciting information relevant to the deceased’s murder. The appellant was told the purpose of the questions. He was not a suspect, and he was not detained when questioned. The jury could conclude from the DNA evidence that the appellant had had very close contact with the deceased but that he chose to tell a lie to the officer rather than acknowledge that contact. In these circumstances, it was reasonably open to the jury to infer that the appellant chose to deliberately lie to the police because he wanted to cover-up his involvement in her homicide. There can be no doubt but that the circumstances in which the appellant lied to the police (assuming, of course, the jury found that the appellant lied) reasonably permitted the inference that he lied to mislead the police and divert suspicion from himself.
[26] The trial judge properly left the statement with the jury as evidence from which the jury could infer an intention to mislead the police and, hence, an involvement in the deceased’s murder. As the trial judge made clear in his instructions, it was up to the jury to decide whether the statement was false and, if so, what inference to draw from the making of the false statement.
[27] Counsel for the appellant also submits that the trial judge failed to tell the jury that if it had a reasonable doubt as to the truth of the appellant’s statement to the police, it must acquit the appellant. The trial judge told the jury that if it accepted the exculpatory statement made by the appellant, it must acquit. He certainly could have followed that instruction with a further instruction that if the jury had a reasonable doubt about the truth of the statement, considered in the context of the entirety of the evidence, that reasonable doubt also required an acquittal.
[28] Considering the charge as a whole, however, we are satisfied that the trial judge’s numerous statements to the jury that it must acquit if it had a reasonable doubt based on the totality of the evidence were sufficient to make it clear that a doubt as to the truth of the appellant’s statement to the police would necessitate an acquittal. It is not reversible error to fail to mention the requirement of proof beyond a reasonable doubt at every juncture in the instruction where it could be mentioned.
(iii) The Alleged Unequal Treatment of the Respective Theories of the Defence and the Crown
[29] This argument goes to the fairness of the jury instruction and the ultimate fairness of the trial. Counsel for the appellant submits that the trial judge improperly invited the jury to speculate as to how the appellant and the deceased came to meet in the apartment building prior to her death. Counsel submits that the trial judge offered this speculation to support the Crown’s theory that the appellant was the killer. Counsel for the appellant further argues that in contrast to this approach to the Crown’s case, the trial judge labelled as speculation an innocent explanation for the DNA evidence advanced by the defence in closing argument. Counsel for the appellant candidly acknowledges that there was little, if any, evidence to support the innocent explanation advanced by the defence, but he submits that it was fatally unfair to characterize the defence position as speculation while at the same time inviting the jury to use speculation to fill gaps in the Crown’s theory of the case.
[30] This submission misreads the trial judge’s instructions. The passages in which counsel for the appellant argues that the trial judge invited the jury to speculate in aid of the Crown theory had nothing to do with the Crown’s theory. The trial judge was merely using hypothetical examples to demonstrate the meaning and limits of the requirement of jury unanimity in arriving at a verdict. He used three hypothetical examples, two of which would result in convictions and one of which would result in an acquittal. He made it clear that his examples were given for the purpose of explaining the limits of the unanimity requirement.
[31] The trial judge fully and fairly addressed the positions of the Crown and defence in subsequent parts of his jury instruction. In describing the defence position, the trial judge did indicate that in his opinion, the explanation advanced by counsel in closing argument for the presence of the appellant’s semen on the deceased’s clothing was speculation. We agree. It was speculation.
(iv) The Reasonable Doubt Instruction as it Applied to the DNA Evidence
[32] Counsel for the appellant made several closely linked submissions concerning the DNA evidence and the burden of proof. Ultimately, we understand him to have argued that the jury should have been told that if it had a reasonable doubt as to whether the appellant could be excluded as the donor of the DNA at any of the sites tested, it must acquit the appellant.
[33] The burden of proof applies to the entirety of the evidence and not to individual pieces of evidence unless, of course, proof of an essential element of an offence depends entirely on a single piece of evidence. As important as the DNA evidence was in this case, it did not stand alone on the identity issue. As set out above, the very close proximity of the appellant’s residence to the stairwell where the body was found and his statement to the police provided some support for the Crown’s contention that the appellant was the killer.
[34] While the DNA evidence did not stand alone, it was certainly central to the Crown’s case. It is fair to say that a jury acting reasonably could not have convicted the appellant without accepting the evidence of the Crown expert. The trial judge’s instructions made the importance of the expert DNA evidence crystal clear. There can be no doubt that the jury appreciated the importance of that evidence. We reject the submission that the trial judge was obliged as a matter of law to tell the jury that a doubt about one aspect of the testimony given by the expert, as important as that piece of evidence might have been, would necessitate an acquittal. The jury had to assess the totality of the expert’s evidence and place it in the context of the rest of the evidence. The burden of proof and the appellant’s entitlement to an acquittal if the jury had a reasonable doubt on the totality of the evidence was properly and repeatedly explained to this jury.
[35] Counsel also argued that the trial judge should have instructed the jury that the Crown expert had taken an improper approach in his analysis of the raw data upon which his opinion was based and that it must acquit if the jury believed that the expert had entertained “reasonable doubts” about the interpretation of some of the raw data.
[36] Witnesses, including expert witnesses, are not called upon to apply the burden of proof before giving their testimony. The jury applies that burden to their testimony. A jury could only be confused by instructions that somehow suggested that expert witnesses had to have regard to the burden of proof when formulating their opinions.
[37] More to the point, counsel’s submission assumes that it was common ground that the Crown expert gave the benefit of “reasonable doubts” to the Crown in his preparation. He denied that he did so. This debate over the expert’s approach to the raw data was a central feature of his cross-examination. The respective positions of the parties were fully and fairly dealt with by the trial judge in his instructions. He did not, quite properly, frame the defence submission as a legal proposition compelling an acquittal.
(v) The Errors in the Transcript
[38] Unfortunately, counsel for the appellant encountered many difficulties in perfecting this appeal. Initially, the trial exhibits could not be found. The first version of the trial transcript provided to counsel for the appellant was replete with errors. In his factum, counsel argued that the appellant’s right of appeal was effectively denied by the combined effect of the missing exhibits and the multitude of errors in the transcription of the trial proceedings.
[39] After counsel for the appellant had filed his factum, Crown counsel was able to locate the exhibits. They are now before the court. None were referred to during counsel for the appellant’s two hour oral argument. Crown counsel also obtained a revised version of the trial transcript. Counsel for the appellant concedes that the revised version corrects many of the errors contained in the initial transcript. He argues, however, that there remain literally hundreds of uncorrected errors in the second version of the transcript. Counsel has catalogued all of these errors and placed them in several different categories.
[40] Counsel for the appellant does not point to any error or group of errors that has actually interfered with his ability to advance any of the numerous grounds that he put forward on behalf of the appellant. Nor has counsel suggested that any error or combination of errors has created any genuine uncertainty as to the substance of the testimony of any of the witnesses or the content of the trial judge’s instruction to the jury. Counsel has rested his submission on the proposition that at some point the sheer quantity of errors in the transcript necessitates a quashing of the conviction without any demonstration of actual prejudice flowing from those errors. He contends that prejudice must be assumed from the quantity of the errors.
[41] We cannot accept this argument. Errors or inadequacies in the transcription of the trial proceedings are germane on appeal to the extent that the correction of the errors reveals grounds for appeal, or the state of the transcript prevents the appellant from pursuing a meaningful appeal.
[42] The vast majority of errors uncovered by counsel for the appellant involve one, two or three words in the transcript. In many instances, the errors are obvious as is the necessary correction. Many of the errors appear in parts of the transcript that have virtually no relevance to the prosecution of an appeal from conviction. For example, many errors appear in the transcription of counsel’s submissions in various legal arguments made at trial. None of the errors render the transcript incomplete or misleading in any meaningful way or impede the pursuit of the appeal. In short, the errors are inconsequential to the appeal. There is no merit in this ground of appeal.
CONCLUSION
[43] As indicated at the end of oral argument, the appeal is dismissed.
RELEASED: “DD” “MAY 28 2009”
“Doherty J.A.”
“Robert P. Armstrong J.A.”
“R.G. Juriansz J.A.”