R. v. Bomberry, 2010 ONCA 542

CITATION: R. v. Bomberry, 2010 ONCA 542

DATE: 20100804

DOCKET: C47779

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Laskin and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kirsten Gail Bomberry

Appellant

Neil R. Jones and Crystal Tomusiak, for the appellant

Riun Shandler, for the respondent

Heard: May 31, 2010

On appeal from the conviction entered by Justice R. Harris of the Superior Court of Justice, sitting with a jury, dated October 31, 2006 and the sentence imposed on January 18, 2007.

O’Connor A.C.J.O.:

Overview

[1] The appellant was convicted of second degree murder. The deceased, Emil Uiuiu, was found in his car having suffered a fatal stab wound to the chest. It was uncontested that Uiuiu had picked up the appellant, who was a sex trade worker, on the evening of his death and taken her back to his apartment. At some point they had an altercation and the appellant left the apartment. Sometime later, Uiuiu was found dead in the driver’s seat of his car five blocks away from the apartment.

[2] The Crown’s theory was that the appellant had both the opportunity and a motive to kill Uiuiu. Uiuiu had brought the appellant back to his apartment for oral sex. Before completing the sex act, the appellant and Uiuiu had an altercation and the appellant left Uiuiu’s apartment, taking his chef’s knife with her. When Uiuiu drove after the appellant to have her complete the sex act, the appellant got into the car and stabbed him with the knife as he was driving.

[3] The appellant testified and denied killing Uiuiu. She said that he had assaulted her in his apartment during the sex act. She left and did not see him again.

[4] The defence position was that there was ample time after the appellant left the apartment for Uiuiu to have become involved with someone else – perhaps another sex trade worker – who then killed him.

[5] The appellant raises a number of grounds of appeal. I find it necessary to address only three of those grounds in order to dispose of the appeal. The appellant alleges the trial judge erred by:

a) Admitting evidence of the appellant’s bad character and failing to instruct the jury on the limited use that could be made of such evidence;

b) Ruling, pursuant to a Corbett application, that the Crown was permitted to cross-examine the appellant on her criminal record for three convictions of assault causing bodily harm and one conviction of assault; and

c) Failing to adequately instruct the jury on evidence relevant to the positions taken by the appellant.

[6] I accept that the trial judge erred essentially as alleged by the appellant. I do not consider this to be an appropriate case to apply the curative proviso. Accordingly, I would allow the appeal and order a new trial.

Facts

[7] On the night of May 20 and the early morning of May 21, 2004, Uiuiu and John Doepel had gone out drinking together. They left at closing time. Doepel testified that when Uiuiu dropped him off at his home, Uiuiu borrowed money from him to hire a prostitute. Doepel’s evidence was that Uiuiu would have dropped him off between 2:00 and 2:30 a.m. It is uncontested that after Uiuiu dropped Doepel off, he picked up the appellant and took her to his apartment.

[8] Two of Uiuiu’s neighbours, both of whom lived in the same building as he did, testified about hearing an altercation in Uiuiu’s apartment and gave estimates of the time that it occurred. Floyd Helka was awakened by noises that sounded like an altercation shortly after 1:00 a.m. He said that the noise lasted for 15 to 20 minutes. Kenneth Concannon was awakened also by noises, but he believed this occurred around 2:00 a.m. or “two something”. Like Helka, he thought the altercation lasted about 15 to 20 minutes.

[9] At approximately 3:45 a.m., Uiuiu’s car stopped at an intersection about five blocks away from his apartment. The vehicle was half on the road and half on the curb. Uiuiu was in the driver’s seat and had suffered a single stab wound to the chest. Expert evidence indicated he would have died rapidly from the injury. Expert evidence also indicated that he was killed while sitting in the driver’s seat, likely by an assailant sitting in the front passenger seat. There was some evidence to support the conclusion that Uiuiu had left his apartment in a hurry: he was still wearing a condom on his penis, his shirt was only partially buttoned and his underpants were on backwards.

[10] The appellant’s DNA was found under Uiuiu’s right hand fingernail clippings, on the exterior of the condom and on a crack pipe that was found in his kitchen. A strand of her hair was found on the floor on the front passenger side of the car.

[11] The night before he was killed, Uiuiu’s girlfriend had washed his large chef’s knife and put it in the kitchen sink rack to dry. Following the killing, the knife was missing.

[12] A forensic pathologist testified that the wound in Uiuiu’s chest was most likely caused by a knife similar to the one his girlfriend described as missing from the apartment.

[13] On July 11, 2004, six weeks after Uiuiu was killed, the police interviewed the appellant and showed her photographs of Uiuiu, his car and his apartment. At first, she denied having ever seen Uiuiu, his car or his apartment. She also denied having had any “bad dates” in the last couple of months. As the interview progressed, however, the appellant clarified her statement somewhat. She said she did not recognize the man, car or house in the photographs, but stopped short of saying that she had never seen them before.

[14] In August 2004, the appellant was arrested and charged with Uiuiu’s murder.

[15] From November 16 to 19, 2004, two undercover police officers, Detectives Turner and Aherns, were inserted into the Vanier Institution where the appellant was an inmate. Detective Turner testified about several conversations she had with the appellant in which the appellant made statements that could be interpreted as admissions of guilt.

[16] On November 17, for example, the appellant spoke of the charge against her and said, “It was one of those, let’s go and talk. I don’t think so.” At this point, the appellant made a stabbing motion towards her chest and a screeching sound and then said, “And I don’t mean self-defence either.” On other occasions, the appellant said she was going to jail for a long time, that she was not going to confess and that she was not sure if someone ratted on her.

[17] Detective Turner testified that the appellant “had attitude” and that she, Detective Turner, was “scared” of her. The appellant was “intimidating” and tried “to show she was somebody, like a tough person”.

[18] The appellant testified. She admitted she was a prostitute and used crack cocaine on a regular basis. She said that, on the night in question, Uiuiu had flagged her down. She got into his car, put on her seatbelt and removed and then re-secured a rubber band in her hair. She went to Uiuiu’s apartment, started to perform oral sex on his penis, which was covered by a condom, and then stopped when he became aggressive by grabbing her head and pushing her down.

[19] The appellant told Uiuiu she was leaving. He threw her to the ground and started hitting her. She screamed, struggled and eventually got away, but he dragged her back into the kitchen where he choked her. Finally, she fought him off and ran out onto the street. She never saw Uiuiu again. According to the appellant, one of her crack pipes must have fallen out of her pocket during the struggle.

[20] The appellant said she could hardly remember the interview with the police on July 11, 2004. She was under the influence of crack cocaine at the time. She said that she did not recognize Uiuiu because she tended not to look at her dates’ faces.

[21] As for the conversations with Detective Turner in the Vanier Institution, the appellant agreed that many of the conversations recounted by Detective Turner had taken place. However, she said there were a number of inaccuracies or omissions in Detective Turner’s evidence. She explained and clarified some of the comments attributed to her.

[22] The essence of the appellant’s evidence was that she had not killed Uiuiu and she did not admit to Detective Turner that she had.

Issue #1 – Bad Character Evidence

[23] The appellant argues that the trial judge erred in admitting a large amount of evidence of her bad character.

[24] The appellant was a sex trade worker addicted to crack cocaine. The appellant does not object to the admissibility of this evidence – it is an essential part of the narrative of the relevant events – but argues that the trial judge failed to give an adequate limiting instruction to the jury with respect to it. In addition, the appellant objects to the admission of a significant amount of other bad character evidence. This evidence was introduced through Detective Turner (the undercover officer) and included both observations that the Detective made, as well as statements she attributed to the appellant. The evidence tended to paint the appellant as a person who had a propensity for violence and who had little regard for the law. The appellant argues that the evidence was not relevant to any of the issues that the jury was required to decide.

[25] The following is a summary of the evidence in issue:

a) The appellant warned Detective Turner not to get on her bad side. This comment made the Detective, “kind of leery from other comments, like she was kind of tough”;

b) The appellant had attitude which caused Detective Turner “to feel scared of her … like to show that she was somebody, like a tough person”;

c) The appellant tried to “get at” another inmate in the Vanier Institution;

d) The appellant always smuggled drugs into the Institution in her genitals;

e) The appellant had friends who were “crack heads”; and

f) The appellant yelled at someone on the telephone, “Then fuck you and mom”.

[26] Evidence that tends to show bad character or criminal disposition on the part of an accused is inadmissible unless: (i) it is relevant to some other issue beyond disposition or character; and (ii) the probative value of the evidence outweighs its prejudicial effect: R. v. J.D.C. (2003), 2003 CanLII 32895 (ON CA), 172 C.C.C. (3d) 268 (Ont. C.A.) at para. 21.

[27] The Crown argues that the evidence referred to above was admissible because the appellant’s counsel at trial (not Mr. Jones) attacked the accuracy and completeness of Detective Turner’s evidence regarding her conversations with the appellant and her observations of the appellant. That being the case, the Crown says that it was necessary for the jury to hear all of what Detective Turner said occurred in order to fairly weigh Detective Turner’s evidence. Significantly, the appellant’s counsel at trial did not object to any of the evidence now being challenged. Thus, the Crown argues this should be viewed as a case in which trial counsel had a considered strategy in not objecting to this evidence and this court should not now intervene.

[28] Clearly, the impugned evidence was evidence of the appellant’s bad character and was not relevant to the substantive issues of whether the appellant was the person who killed Uiuiu. There was a danger that the jury could misuse the evidence for propensity reasoning.

[29] However, given the approach taken by the appellant’s counsel at trial, I am not persuaded the trial judge erred in admitting the evidence. The trial judge may well have concluded that the appellant wanted Detective Turner’s evidence admitted in its entirety so as to better enable her to challenge that evidence.

[30] Thus, I do not find the trial judge erred in admitting the evidence. That said, I should not be taken to say that all of this evidence should be admitted if there is a new trial. Defence counsel at a new trial may well take a different approach.

[31] That brings me to the trial judge’s failure to give the jury a limiting instruction with respect to the use of the evidence of the appellant’s bad character.

[32] The trial judge did not give the jury a limiting instruction with respect to the evidence that the appellant was a sex trade worker and a crack addict. Nor did he instruct the jury of the limited use that could be made of the bad character evidence that was elicited through Detective Turner, referred to in para. 25 above.

[33] The law is well settled that if evidence of the bad character of an accused is admitted, and that evidence could potentially have a strong prejudicial effect on the jury, a trial judge should instruct the jury as to the limited use that can be made of that evidence. More specifically, the jury should be told not to use the evidence to infer that the accused is the sort of person who is likely to have committed the offence in question: R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697 at pp. 733-35.

[34] In my view, the impugned evidence in this case required a limiting instruction. The impugned evidence showed the appellant to be a person who lived outside the law, had no regard for authority, a quick temper and a potentially violent disposition. There was a significant concern that, absent a clear instruction on the use of this evidence, the jury would engage in unacceptable propensity reasoning. The evidence was prejudicial to the appellant and there was a real risk that it would divert the jury from the task of deciding the case on the basis of the admissible evidence legally relevant to proving the charge the appellant faced.

[35] At trial, the Crown Attorney acknowledged that the trial judge should give a limiting instruction with respect to the evidence of the appellant’s bad character. She said, “Your Honour, I expect, will instruct the jury at the end of the trial that they are not to engage in the impermissible reasoning because Ms. Bomberry is a prostitute and because she’s, they heard she was a crack cocaine user, they are not allowed to conclude that she is the type of person who committed this offence of murder …”

[36] On appeal, counsel for the Crown fairly recognizes that the trial judge ought to have given a limiting instruction. However, he submits that two factors reduce the seriousness of the trial judge’s failure.

[37] First, the Crown points out that the appellant’s trial counsel did not object to the trial judge’s omission to give a limiting instruction. I agree that this is a factor to be considered on appeal. However, defence counsel’s failure to object to a trial judge’s omission to give a limiting instruction for evidence of this type is not always determinative on appeal. An appeal court must look at the whole of the record and determine the impact of the trial judge’s omission on the fairness of the trial. In the end, the trial judge’s duty to charge the jury properly and to ensure that the jury reaches a fair verdict – that is, a verdict not based on improper considerations – is not vitiated by the failure of defence counsel to object at trial: see R. v. J.D.C. at para. 32. I might add that in this case there does not appear to have been a tactical reason for counsel’s failure to object to the omission of a limiting instruction.

[38] Second, the Crown argues that the instructions that the trial judge did give with respect to other evidence presented at trial would help the jury appreciate the limited use they should make of the impugned evidence.

[39] With respect to Detective Turner’s evidence, the trial judge gave instructions, both during the trial and in the charge, regarding the appellant’s utterances to Detective Turner in the Vanier Institution. However, those instructions only addressed the reliability and accuracy of Detective Turner’s evidence and the potential use of the appellant’s statements as admissions. Those instructions did not warn the jury that if they accepted the statements were made by the appellant, they should not be used for propensity reasoning. Moreover, the trial judge’s instructions related only to statements made by the appellant. Some of the most potentially prejudicial evidence from Detective Turner involved her own personal commentary – namely, that she was scared of the appellant because the appellant was a tough person and had attitude.

[40] Finally, although the trial judge instructed the jury, both mid-trial and in his charge, not to use propensity reasoning when considering two other pieces of evidence – specifically, the appellant’s criminal record and her possession of a knife six weeks after Uiuiu was killed – nothing in those instructions suggested to the jury that the same approach should extend to the bad character evidence. Indeed, it is possible that the jury may have taken exactly the opposite message. Having received specific instructions on two occasions about the limited use they could make of the appellant’s criminal record and the knife evidence, the jury may have reasoned that, in the absence of any similar instructions, no such restrictions applied to propensity reasoning based on the bad character evidence.

[41] In the result, I am satisfied that there was a real danger that the jury could have used the evidence of the appellant’s bad character for propensity reasoning. In my view, the trial judge erred in failing to provide the jury with a limiting instruction in relation to the bad character evidence.

Issue #2 – The Corbett Ruling

[42] The appellant argues that the trial judge erred in ruling that the Crown could cross-examine her on her criminal record – specifically, on her three convictions for assault causing bodily harm and her one conviction for assault.

[43] Prior to testifying, the appellant brought an application pursuant to R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, requesting that the trial judge edit her record of criminal convictions for its use under s. 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5.

[44] The trial judge edited the record. He removed all convictions prior to October 2000, which included two assault convictions. He also removed a conviction for carrying a concealed weapon in 2004. The record that remained included convictions for failing to comply with a probation order on two occasions, obstructing a police officer on two occasions, theft over $5,000, possession of goods obtained by crime under $5,000, possession of a scheduled substance, as well as the four assault convictions referred to above.

[45] In making his ruling, the trial judge noted that the Crown was “faced with an attack on the credibility of its witnesses”, in particular Detectives Turner and Aherns, as well as an attack on the character of Uiuiu. In his brief reasons, the trial judge seemed to be concerned that it was necessary to admit the appellant’s record, as he edited it, so that the jury would not be misled into thinking that the Crown witnesses were disreputable and the appellant was of good character. In other words, admitting the record in the edited form was necessary to ensure that there was not an imbalance in favour of the appellant.

[46] The trial judge seemed similarly concerned that because the appellant had brought out some evidence of Uiuiu’s bad character, it was necessary to allow the appellant’s assault convictions to be introduced so as to avoid unfairness in the way the jury would view him and the appellant.

[47] In my view, the trial judge erred in admitting the appellant’s record of convictions for the four assault charges. Those convictions would not add anything to the jury’s analysis of the appellant’s credibility. The balance of the appellant’s criminal record, as edited, together with the other evidence that had been admitted about her background and lifestyle, was more than enough to alert the jurors that they should exercise great caution in assessing the appellant’s credibility.

[48] Not only were the assault convictions unnecessary for the task of assessing the appellant’s credibility, but they were also potentially very prejudicial to her in terms of opening the door to propensity reasoning. Those convictions were close in time to Uiuiu’s death and they portrayed the appellant as a person prone to violence. While the trial judge gave the appropriate limiting instructions to the jury as to the use to be made of the appellant’s criminal record, including the assault convictions created an unnecessary risk that some jurors could use these convictions impermissibly.

[49] Moreover, if the trial judge had removed the assault convictions from the appellant’s record, there would not have been an unfair imbalance in favour of the appellant as compared to the Crown witnesses. As I have noted above, there was plenty of other evidence admitted at trial, including the evidence of Detective Turner, to show that the appellant was not a person of good character. There was no need to add the four assault convictions to what was already a strong body of evidence on this point.

[50] In any event, the appellant’s trial counsel did not challenge the good character of any of the Crown witnesses, including Detectives Turner and Aherns. Defence counsel only challenged the accuracy and reliability of the evidence of the Crown witnesses, not their good character. There is a distinction. Questioning witnesses’ accounts of events and challenging the accuracy of those accounts does not create the potential for the kind of imbalance discussed in Corbett: R. v. W.B. (2000), 2000 CanLII 5750 (ON CA), 145 C.C.C. (3d) 498 at paras. 46-47.

[51] For essentially the same reasons, I do not consider that it was necessary to admit the record of the four assault convictions so as to remove any imbalance that the jury may have perceived between the respective characters of the appellant and Uiuiu.

[52] In summary, I am of the view that, in the context of all of the evidence admitted in this case, the trial judge erred in not excluding the four assault convictions from the appellant’s criminal record.

Issue #3 – The Unbalanced Jury Charge

[53] The appellant argues that the trial judge’s charge to the jury was unfair and unbalanced. The appellant’s complaints fall into two categories:

a) The trial judge failed to summarize, or even refer to, the appellant’s evidence as it related to the issues in the case; and

b) The trial judge’s charge lacked balance when he discussed certain pieces of evidence called by the Crown.

[54] Instructions to a jury need not follow a particular formula. In an often quoted passage from R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.), at para. 27, Doherty J.A. set out the purposes of jury instructions:

By the end of the instructions, whatever approach is used, the jury must understand:

• The factual issues which had to be resolved;

• The law to be applied to those issues and the evidence;

• The position of the parties; and

• The evidence relevant to the positions taken by the parties on the various issues.

[55] The appellant’s complaints are concerned with the fourth purpose of a jury charge referred to in MacKinnon. That is, the trial judge did not provide the jury with the necessary instructions to enable them to understand the evidence relied upon by the appellant in support of her position on important issues in the case.

[56] On appeal, the Crown accepts that the charge is inadequate in that it did not fully convey the evidence relevant to the defence position on a number of points. However, the Crown argues that this non-direction did not amount to an error in law in the circumstances of this case. I will come back to the Crown’s arguments below.

[57] I turn first to the trial judge’s failure to refer to the appellant’s evidence. Early in his charge, the trial judge set out the theory of the Crown. He also set out the theory of the defence in one paragraph. The trial judge then summarized in some detail the Crown’s evidence by recounting the highlights of the evidence of nearly every Crown witness. However, he never summarized the appellant’s evidence. Apart from a couple of small points interspersed with his summary of the Crown’s evidence, he gave no indication of what the appellant’s evidence had been in support of her defence.

[58] For example, other than the one paragraph referring to the theory of the defence, the trial judge did not refer to the appellant’s evidence regarding what happened on the night Uiuiu was killed. He made no mention of the appellant’s evidence about the altercation in Uiuiu’s apartment, which was – at least to some extent – consistent with the evidence of the two neighbours. The appellant’s evidence was that the altercation, which the neighbours heard, resulted from Uiuiu becoming aggressive during the sex act. She said they struggled. Eventually she was able to free herself and run from the apartment to get away from Uiuiu. She left the area and never saw him again.

[59] The appellant was entitled to have her version of those events put to the jury, together with her position that sufficient time elapsed between the time she left the apartment and Uiuiu’s death so as to make it improbable that she was the killer.

[60] The trial judge also did not adequately put the appellant’s evidence about her conversations with Detective Turner to the jury. Detective Turner’s evidence, if accepted, was very damaging to the appellant. The appellant took issue with some of Detective Turner’s accounts of their conversations.

[61] The trial judge summarized those parts of Detective Turner’s evidence that the Crown alleged were admissions made by the appellant. However, with one exception, which I will mention below, he did not refer to the appellant’s evidence about her interactions with Detective Turner.

[62] For example, the trial judge related Detective Turner’s evidence about the stabbing motion conversation, which was very damaging to the appellant. However, he did not set out the appellant’s explanation that she was not talking about the night of the offence during that conversation.

[63] The trial judge also commented that, at least in his view, the appellant’s admissions to Detective Turner seemed to be “free flowing” in that Detective Turner was not prompting the appellant to speak and was responding to things said to her. Although the trial judge said it was up to the jury to decide, he did not mention to the jury the appellant’s evidence that Detective Turner had been a far more active participant in eliciting conversation and in asking the appellant questions. Given the significance of the conversations with Detective Turner, it was important from the appellant’s standpoint that this evidence be left with the jury.

[64] The appellant took issue to some degree with several parts of Detective Turner’s evidence. The trial judge recognized in general terms that there were differences but made only one specific comment on the appellant’s evidence as follows:

Also there are material differences in what was purportedly said. One was ‘and I don’t mean self-defence’. And the accused, Ms. Bomberry said ‘I don’t need self-defence’.

[65] In summary, I am satisfied that the trial judge failed to adequately summarize the appellant’s evidence about what happened on the night of the killing and her evidence with respect to her interactions with Detective Turner.

[66] Further, in commenting on the Crown’s evidence, the trial judge, on occasion, recounted only those aspects of the evidence that were most unfavourable to the appellant. I will give three examples.

[67] The first concerns the evidence of Mr. Doepel, a Crown witness. Uiuiu drove Doepel home the night he was killed and Doepel testified that on the way home Uiuiu picked up a prostitute (who was not the appellant). Shortly after the prostitute was in the car, Uiuiu said to her, “What the fuck happened to your mouth, I think you should get the fuck out.” Uiuiu was rude and the prostitute got out immediately.

[68] This was potentially important evidence for the appellant because it showed a pattern of behaviour by Uiuiu towards a prostitute a short time before the interactions between him and the appellant.

[69] In her closing submission, defence counsel referred to this evidence by saying Uiuiu had thrown the prostitute out of the car because she was too ugly. Defence counsel then mentioned the comments about her teeth and Uiuiu’s statement about getting out of the car.

[70] In his charge, the trial judge referred to defence counsel’s submission and said:

This morning we heard from counsel that she [the prostitute] was thrown out of the car. That is just not so and she got out of the car, after some smart comments, said the witness.

[71] With respect, this comment from the trial judge was unfair. Defence counsel was not suggesting that Uiuiu physically threw the prostitute out of the car. The trial judge’s comment had the effect of both watering down the fair import of the evidence and undermining the credibility of defence counsel with the jury.

[72] A second example has to do with the evidence of the police interview with the appellant on July 11, 2004, six weeks after Uiuiu was killed. In recounting this evidence, the trial judge indicated the appellant had said “no” when asked if she had ever seen Uiuiu, his vehicle or his house. She had also said she had not had a bad date in the past two months. The Crown’s theory was that the appellant lied to the police. However, in the interview with the police, the appellant had explained and qualified her answer to indicate that she had no recollection of having seen Uiuiu, his car or his house, but was not certain that she had never seen them before. She could not say she had never been on a date with Uiuiu in the past. The trial judge did not put the appellant’s qualification to the jury.

[73] A third example relates to the hair evidence. A hair of the appellant was found in Uiuiu’s car. The trial judge reviewed the Crown expert’s evidence saying

This long hair could be removed on the assailant trying to leave the car and being pulled as he or she left, I guess, the assailant.

[74] The trial judge made no mention of the other ways the expert had agreed that the hair could have ended up in Uiuiu’s car. This was despite defence counsel’s submission during the pre-charge discussion about the need to include the other explanations and the trial judge’s assurance that he would mention the more favourable explanations.

[75] The Crown argues that the trial judge’s failures did not prejudice the appellant because the jury had the benefit of a thorough review of the evidence in defence counsel’s closing address. The difficulty with this submission is the lack of balance in the trial judge’s instructions. In some circumstances, counsel’s closing submissions, particularly as to the evidence, may be sufficient to permit the trial judge to set out the position of the parties and then only briefly refer to the evidence relevant to those positions. However, when that approach is adopted, balance is important. The trial judge in this case spent a considerable amount of time outlining the evidence that supported the Crown’s position and almost no time at all with respect to the defence evidence.

[76] The Crown also argues that it would have been detrimental to the appellant if the trial judge had related the evidence supporting her positions because that evidence was so obviously flawed. I do not agree. While there may be problems with parts of the appellant’s explanations, she was nonetheless entitled to have the trial judge relate the evidence that supported her positions and then leave it to the jury to assess the merit of the evidence and her positions.

[77] Finally, the Crown points to the fact that defence counsel did not object to the trial judge’s charge. I agree that the failure to object is a factor that needs to be considered. However, as I said above when discussing the failure to give a limiting instruction in the context of bad character evidence, it is not determinative. The trial judge had a duty to present the case to the jury in a fair and balanced manner. For the reasons indicated above, it is my view that his charge did not meet the requisite standard of fairness.

Issue #4 – The Proviso

[78] The Crown argues that if the trial judge made any of the errors relied upon by the appellant, this court should apply the curative proviso in s. 686(1)(b)(iii) of the Code to uphold the conviction.

[79] I do not think this is a proper case to apply the proviso. I agree that the Crown’s case, which was based on circumstantial evidence, was strong. However, I have concluded that the trial judge made three errors, each of which could potentially result in a new trial. This court must take into consideration the cumulative effect of those three errors. Moreover, in this case the appellant testified and denied guilt. Her credibility was a central issue in the trial. I cannot say that a reasonable jury, properly instructed, would necessarily have convicted the appellant.

Disposition

[80] I would allow the appeal, quash the conviction and order a new trial.

RELEASED: “DOC” “AUG 04 2010”

“Dennis O’Connor A.C.J.O.”

“I agree John I. Laskin J.A.”

“I agree E.E. Gillese J.A.”