R. v. Hall, 2010 ONCA 724

CITATION: R. v. Hall, 2010 ONCA 724

DATE: 20101029

DOCKET: C46090 & C45057

COURT OF APPEAL FOR ONTARIO

Feldman, Simmons and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

And

Carl Hall

Appellant

Delmar Doucette and Joanne McLean, for the appellant

Lucy Cecchetto and Joanne Stuart, for the respondent

Heard: April 12-14, 2010

On appeal from the conviction entered by Justice Jane A. Milanetti of the Superior Court of Justice, sitting with a jury, on February 18, 2006.

Feldman and Simmons JJ.A.:

I. Overview

[1] The appellant appeals from his conviction for the first degree murder of Jacqueline McLean. Ms. McLean was 37 years old when she was found dead after an evening of partying with a group of friends and acquaintances. The group, which included the appellant, consumed substantial quantities of alcohol and crack cocaine during the evening.

[2] Ms. McLean’s body was discovered in a vacant apartment in the former Sandbar Hotel in Hamilton at about 2:30 a.m. on August 20, 2001. She had been bludgeoned to death by approximately six blunt force blows to the head, any one of which would have incapacitated her. Her body, naked from the waist down, was found at the top of a set of stairs that led to a loft within the vacant unit. Her top and bra were pushed up, exposing her breasts. Her running shoes, jeans and underwear were beside her. The underwear had been torn into two pieces. Subsequent DNA analysis revealed that the appellant’s semen was located in her vagina, on her body, and on the outside of the larger of the two portions of her underwear.

[3] At trial, the Crown submitted that the appellant killed the deceased during the course of a sexual assault and was therefore guilty of first degree murder. The Crown was permitted by the trial judge to introduce a videotaped statement that the appellant gave to the police following his arrest in which he told the police that he had consensual intercourse with Ms. McLean on the night in question, but that afterwards, they got dressed and returned to a party in another apartment in the same building.

[4] To support its theory that the appellant killed Ms. McLean in the course of a sexual assault, the Crown relied on the semen evidence, as well as on blood spatter evidence indicating that the deceased was wearing her underwear and jeans when she sustained the blunt force injuries and that the underwear had been intact and flat when blood droplets were deposited. In addition, the Crown relied on forensic evidence that no semen was found on the crotch area of the deceased’s underwear or on her jeans. Based on expert opinion evidence that semen normally leaks out of the vagina if a woman stands up following intercourse, the Crown submitted that the absence of semen in these locations demonstrated that the deceased did not stand up after intercourse. The Crown’s position was that the only possible explanation for the physical evidence found at the scene was that the deceased was wearing her underwear when the appellant inflicted the various blows to the head. The Crown argued that it was only after the final blow that the appellant removed the underwear, tearing them in two in the process. He then had intercourse with the victim and wiped his semen on the larger torn fragment of her underwear.

[5] In his closing address, the trial Crown alleged that the appellant fabricated his statement to the police and relied on such fabrications, as well as statements the appellant made to his girlfriend, as evidence of post-offence consciousness of guilt.

[6] The appellant did not testify at trial. However, in the videotaped statement that he gave to the police, he denied killing or sexually assaulting Ms. McLean. In his statement, he said that Ms. McLean was a prostitute and, over the course of the evening in question, he and another party-goer, Barry Lane, enlisted her services at a bar to buy crack cocaine for them. After partying at the bar, they went to an apartment at the former Sandbar Hotel to smoke crack. At one point, the appellant and Ms. McLean went to a vacant apartment unit upstairs at the Sandbar where they smoked crack and had consensual sexual intercourse.

[7] The appellant claimed that, at Ms. McLean’s request, he withdrew during intercourse and ejaculated into her underwear, which had been torn off or otherwise removed in the heat of passion. Following this brief liaison, the appellant and Ms. McLean returned to the party at the downstairs apartment. Later, the appellant left the party to meet his girlfriend, who proceeded to break up with him. After that, he went to a detox centre.

[8] Initially in his statement to the police, the appellant said that Ms. McLean left her underwear behind in the vacant apartment and just wore her pants. However, later in his statement, he acknowledged that he did not see her get dressed after they had intercourse – giving rise to a potential inference that she had put her underwear back on.

[9] In addition to his statement to the police, the appellant relied on the expert evidence of a gynaecologist to support his account of consensual intercourse. The gynaecologist’s evidence addressed the significance of the absence of injuries to the deceased arising from intercourse, as well as the possibility that semen leakage may not occur following intercourse, depending on the amount of semen deposited.

[10] Finally, the defence submitted that Barry Lane could have been the killer. In support of this theory, defence counsel at trial pointed to evidence of motive (another witness testified about the deceased’s habit of hiding crack in her vagina and defence counsel suggested that Lane, a regular crack user, may have killed the deceased and disrobed her to search for drugs); opportunity; and apparent falsehoods in Lane’s trial testimony.

[11] For the reasons that follow, we would allow the appeal, set aside the verdict and order a new trial. Before explaining this result, we will describe the evidence adduced at trial in some detail to provide the necessary factual backdrop to the central issues in this case, namely: i) did the trial judge err in failing to properly describe the position of the defence and the evidence capable of supporting it; and ii) did the trial judge err in his instructions to the jury concerning post-offence conduct?

II. Background

a) The Events of August 19-20, 2001

i) Events prior to the party at the former Sandbar Hotel

[12] On August 19, 2001, the appellant was staying at a youth drop-in centre and hostel in Hamilton known as the Wesley Centre with his girlfriend, Crystal McLean (no relation to the deceased), and his acquaintance, Barry Lane. In the early afternoon, the appellant and Lane went shopping with a third man, Ken Makhan.

[13] The three men returned to the Wesley Centre with cigarettes, alcohol and new clothes. The appellant was wearing a new, dark gray Adidas shirt and new black Champion tear-away pants. Lane was wearing a new white t-shirt with shoulder epaulets and new dark pants. All three men spent time selling cigarettes to people on the street and at the Centre to make money to buy crack. Accompanied by Crystal, they later went to the apartment of a person known as “Newf”. When the men began to smoke crack, Crystal became upset and returned to the Centre.

[14] The appellant, Lane, and Makhan eventually left Newf’s apartment and went downtown, where they continued to sell cigarettes to get money to buy crack. That evening, the three men spent time at Big Lisa’s, a downtown bar with a reputation for crack trafficking. While at the bar, both the appellant and Lane spoke to a server named Sheila Banach who worked at Big Lisa’s. According to her, the men already looked “strung out”, and both wanted to buy more crack. She also saw them speaking to the deceased and Virginia Barberiz, both of whom worked as prostitutes.

[15] Banach first saw the deceased with the appellant and Lane between 7:30 and 8 p.m. On separate occasions, the deceased and Barberiz assisted the appellant, Lane, and Makhan to obtain crack, either from within the bar itself or at the next door convenience store where a crack dealer operated. After helping him once, Barberiz refused to help Lane anymore because of his behaviour towards her.

[16] According to Banach, the deceased had two separate arguments in Big Lisa's that evening. The first was with the appellant, who told the deceased that he had better get the crack for which he had paid. The second argument was between the deceased and Lane. Although she could not tell what the argument was about, Banach saw Lane yelling at the deceased.

[17] According to Banach, the deceased obtained crack for Lane and the appellant, but less than expected (apparently because of a debt she owed to the seller). Barberiz testified that Lane yelled at the deceased, “why did you do that to me”, and said that he had been “ripped [off] by a nigger already.”

[18] According to Barberiz, the deceased and the three men left the bar together, walking in the direction of the Sandbar Hotel. Barberiz left separately, and eventually returned to the Sandbar, where she lived.

ii) The former Sandbar Hotel

[19] By all accounts, the former Sandbar Hotel in Hamilton was a crack house with apartments on the second and third floors. The apartments relevant to this appeal are as follows:

• Unit 3 on the third floor: Barberiz rented this unit

• Unit 4 on the third floor: Banach had arranged to rent this unit, but had not yet moved in. Banach testified that “the girls” sometimes used the unit to turn tricks. On August 19, 2001, she told the deceased that she could use it. The deceased's body was found in this unit

• Unit 7 on the third floor: Michael Cameron, a friend of Banach, rented this unit

• Unit 8 on the second floor: Gordon “Butch” Stadnik rented this unit and he hosted the August 19, 2001 party in this unit

iii) The party in Stadnik’s apartment

[20] By the late evening of August 19, 2001, the appellant, Lane, Makhan, Barberiz and the deceased were all reportedly in Stadnik's apartment smoking crack. However, the witnesses to the events in the apartment were all using crack, and they all had different recollections about who was at the apartment, how they got there, how long they stayed, who left, when they left, and who returned.

[21] According to Stadnik, Barberiz came to his apartment at approximately 10 or 11 p.m. with her boyfriend and two other men, whom she introduced as “Carl” (the appellant) and “Barry” (Lane). Barberiz then went and got some crack for the group. Afterwards, the appellant and Lane went to get more crack, and later returned to his apartment with some other people, including the deceased.

[22] Barberiz denied having brought the appellant and Lane to Stadnik's apartment. She testified that she was in and out of Big Lisa’s and in and out of her apartment throughout the evening. She claimed that, on one occasion, when she was returning to the Sandbar, she stopped in at Stadnik's apartment where she saw the appellant, Lane, Makhan, the deceased, and Stadnik. The appellant and the deceased were laughing, “sitting beside each other all happy.” Barberiz did not stay at Stadnik's apartment, but returned to her own apartment where she and her boyfriend smoked crack.

[23] Lane testified that he and the appellant encountered Barberiz and Stadnik on the street. The appellant took him to Stadnik's apartment while Barberiz went down the street to get crack. Contrary to the evidence of the other witnesses, Lane claimed the deceased was not present at Stadnik's apartment. Moreover, apart from acknowledging that she might have served him a drink, Lane also denied any contact with the deceased at Big Lisa’s.

iv) The appellant's description of his sexual encounter with the deceased

[24] On March 16, 2002, the appellant was arrested and charged with the murder of Ms. McLean. In a videotaped statement to the police given on that date, the appellant said that he and the deceased hit it off at Stadnik’s apartment and went upstairs to the vacant apartment for “a bit of fun.”

[25] According to the appellant, he and the deceased each smoked a “couple stones” of his crack and then had sex, which he paid for by sharing his crack. The deceased fellated him to get him erect. They then removed their lower clothing and had sex standing up, with the deceased bent over the railing of the loft and the appellant entering her from behind. The appellant claimed that in order to enter the deceased, he moved her underwear to the side and he said, “[i]n the heat of it ... her panties end up coming off, like there was one tear at the side and we, you know, heated up, kind of tore ‘em off.” The appellant said that the deceased asked him not to ejaculate inside her, so he withdrew and ejaculated into her underwear. He later said he could not tell if any went in her, but “it wasn’t supposed to.”

[26] Initially, the appellant said that when the deceased got dressed, she left her underwear behind:

Appellant: ...She got dressed, she wasn't even wearing them [her underwear] when she got dressed and then we went downstairs.

Officer: Okay.

Appellant: She just wore pants. A lot of the girls just wear pants.

Officer: So she pulls her, her panties off and throws them aside.

Appellant: Yeah.

Officer: Pulls up her jeans.

Appellant: Yeah and I got dressed.

[27] However, in response to further questions, the appellant indicated that he did not watch the deceased get dressed and he only assumed that she left her underwear behind:

Officer: When, when she left and came back downstairs, her, she pulled her jeans up, you said.

Appellant: Yeah.

Officer: And her uhm, underwear were where?

Appellant: Well, we left them in the room cause they were like ripped off of her from the side, you know what I mean.

Officer: Right.

Appellant: So, she just left them there. Ah, ha, she left them I assume, unless she put them in her pocket.

Officer: Did, did you see...

Appellant: She might have had them...

Officer: ... them on the floor up there?

Appellant: ... no, she might have had them in her pocket. I don't know. She could have had them in her pocket, but I can't see why after they were tore. Like I'm not, I didn't pay attention to these little details and things, you know what I mean.

Officer: Okay. Uhm, you said that uh, you tore Jackie's underwear or she did?

Appellant: Uh, I did and she tore them the rest of the way. That's it. It's kind of like in the heat of the moment, I was, you know what I mean, still in her.

Officer: Yeah.

Appellant: You know, oh fuck, it was good, but I remember, quick, but you know what I mean, it was like.

Officer: So are they are in one piece. Is there more than one piece when you leave?

Appellant: One piece I think. I don't know.

Officer: And you don't know if she’s...?

Appellant: Like she, I know I tore ‘em, she tore them the rest of the way off of her, I know that. I'm not even sure if they all came off her or she slid down her leg and took them off. I don't know. I didn't watch her get dressed.

[28] According to the appellant, he and the deceased were away from Stadnik’s apartment for only 5 to 10 minutes. After they returned to Stadnik’s apartment, Barberiz left to pick up more crack and everyone went outside. The appellant and the deceased sat on the side of the street with her on his knee. After Barberiz returned with some crack, they went back to Stadnik's apartment to smoke it. Half an hour later, the appellant left to meet his girlfriend at the Wesley Centre.

v) Other descriptions of the deceased’s whereabouts after the party

[29] According to Stadnik, when Barberiz left his apartment for the last time, the appellant said he was going home and the deceased said that she was going “to make some money”. On Stadnik's evidence, the appellant and the deceased left essentially at the same time, leaving Stadnik in his apartment with only Lane.

[30] Banach testified that she and her friend Michael Cameron left Big Lisa’s to go to the Sandbar at 11:50 p.m. She believed that the appellant and Lane were both still at the bar at that time. While on the way, a few doors from Big Lisa's, she saw the deceased coming from the direction of the Sandbar. Banach went into her apartment to change and then went to Cameron's apartment. She was in bed in Cameron's apartment by 12:05 a.m. She knew the time because she recalled looking at a VCR or a clock as she went to bed.

[31] Tamara Burbank, a Big Lisa's regular, said she recalled seeing the deceased in Big Lisa's when she left the bar between 12:30 and 1:00 a.m.

vi) Lane's actions after the party

[32] According to Stadnik, in order to get Lane out of his apartment after the others had left, he told Lane he was going out. Lane went upstairs and knocked on Barberiz’s door looking for crack. When Barberiz did not open the door, Lane came back to Stadnik's apartment and Stadnik told him to “get lost”.

[33] Stadnik testified that 20 minutes to an hour after Lane left his apartment, Lane returned to the Sandbar on a bicycle. The shirt Lane had been wearing earlier was slung over his shoulder. Lane wanted to exchange the bike for crack and asked Stadnik where Barberiz was. The bike had in fact been stolen and, at Lane's sentencing for possession of stolen property, his lawyer submitted that Lane stole the bicycle in the dramatic aftermath of seeing a dead body. However, at the appellant's trial, Lane claimed that he saw the body only after he returned on the bike.

[34] Lane testified that he planned to return to the Wesley Centre after the appellant left because he had no money, alcohol or crack. He met Barberiz when he went downstairs. She gave him some crack, rubbed up against him, took him back to Stadnik's apartment and told him to wait there while she got more crack. He said he was alone in Stadnik's apartment for at least an hour, with Barberiz making repeated visits to give him crack and to encourage him to stay.

[35] Like Stadnik, Barberiz contradicted Lane’s story. She testified that she was in and out of her apartment, turning tricks and getting crack. Once, on her way out, she noticed Lane “lurking” in the third floor hallway, near unit 4. He was wearing a white T-shirt and black track pants. She did not speak to him. She went out, turned a trick, got some crack and returned home. As she went up the stairs, she saw Stadnik and Lane standing at Stadnik's apartment door. They asked her to come in and talk, but she refused. Later, she went out again and once more saw Lane lurking in the hallway, this time wearing track pants but no shirt. After he knocked on her door several times and referred to a dead body, she called the police, telling them “some strange weirdo” was trying to come into her apartment.

vii) The discovery of the body

[36] At approximately 2:30 a.m. on August 20, 2001, Jeorge Tselepakis, a cook at Big Lisa’s, went to the Sandbar to pick up Banach so that she and her boyfriend could stay at his house. He opened the door of unit 4 and saw blood. After walking into the apartment and halfway up the stairs to the loft, he saw a woman's body and assumed it was Banach. He ran out of the apartment and knocked on Barberiz's door shouting, “somebody killed Sheila.” Suddenly, Lane appeared behind him, wearing pants but no shirt, and asked Tselepakis what he wanted.

[37] Tselepakis told Lane there was a body in unit 4 in the loft. Lane went into the apartment and upstairs to the loft. He lifted the body and shook it even though Tselepakis told him not to do so.

[38] A police dispatcher confirmed receiving a call from Barberiz at approximately 2:35 a.m. about a suspicious person knocking at her door. Between 2:40 and 2:49 a.m., a group, including Lane, flagged down two police officers and alerted them to the discovery of the body.

viii) The appellant's whereabouts after leaving the Sandbar

[39] In his statement to the police, the appellant said that after he left the Sandbar, he walked to the Wesley Centre to look for Crystal. He said that he could not find her, and walked in and out of the building and around outside looking for her for about 20 minutes. He found her on the street sitting on a curb and they talked for “over an hour”. Crystal broke up with him, and, after wandering the streets for a while, he went to the Men’s Detox Centre.

[40] Surveillance tapes at the Wesley Centre, which were introduced in evidence by the Crown, showed the appellant’s meeting Crystal there at 12:42 a.m. Contrary to the appellant’s statement to police, the tapes did not show him entering the building to look for her. The tapes showed the couple parting company at 1:32 a.m.

[41] At 3:19 a.m., shortly after the appellant arrived at the Detox Centre, someone at that facility called a taxi to take the appellant to Holmes House, a rehabilitation facility in Simcoe. He arrived there at 5 a.m. and was observed to be in the early stages of crack-cocaine withdrawal, but was lucid and coherent.

[42] The Wesley Centre is .9 kilometres from the Sandbar. A private investigator walked the route and found it took him 8 minutes and 20 seconds to get from the Wesley Centre to the Sandbar and 21 minutes and 53 seconds to walk from the Wesley Centre to the Men's Detox Centre.

[43] Crystal McLean testified at the trial about her interaction with the appellant on the evening in question and about a conversation she had within him several months later at the behest of the police. She explained that earlier in the afternoon of August 19, 2001, she and the appellant as well as Lane and Makhan were at the Wesley Centre. The three men went shopping and returned with new clothes, shoes, liquor and cigarettes. She left when they went into a bathroom where she believed they were smoking crack. She was fed up with the appellant’s drug use.

[44] Later that evening, she believed at around 2 a.m., the appellant returned to the Wesley Centre. They talked for about an hour. His clothes were not dirty, but looked worn for a day. In Crystal’s opinion, he smelled “like a whore”. He told her that he had done something bad, that he didn’t want to explain it to her and that he wanted to talk about their leaving together for the west. However, she broke up with him and he left.

[45] Crystal went on to testify that in March 2002, she visited the appellant in Midland for about one half hour, telling him that the police had been coming to her home and asking her about that night. She asked him what she should tell them. At the request of Crown counsel, she read parts of their conversation from a transcript. In cross-examination, she read other parts. At one point, the appellant told her to tell the police nothing, and at other points he told her to tell them everything that happened. He also said at one point that they were together for over an hour and she corrected him and said it was for 45 minutes.

b) The Forensic Evidence

i) The cause of death

[46] Dr. Chitra Rao performed the autopsy on the deceased's body and determined that she had suffered approximately six blunt force blows to the head. The blows were each substantial enough to cause multiple skull fractures, and together, they made death inevitable. Any one of the blows would have disabled the deceased. Bruises and abrasions on the body were consistent with dragging.

ii) The police and Dr. Rao examine unit 4

[47] Along with two detectives, Dr. Rao observed the body at the scene at around 8:20 a.m. on August 20, 2001. The deceased's body was clothed in only a shirt and bra, which had been pushed up around her neck, and a pair of white socks. The deceased's jeans, running shoes, and underwear were beside her. The underwear had been torn in two and an additional tear ran from the waistband to one of the leg holes. The officers believed that a steel bar against the wall in the loft was the probable murder weapon.

iii) DNA analysis of the blood stains on the deceased's underwear

[48] Four significant bloodstains were found on the deceased's underwear. Two of the bloodstains matched her DNA profile: a large stain on the back of the underwear that corresponded to a similar bloodstain on the rear of her jeans, and a smaller blood stain on a portion of the crotch panel of the underwear. A third, tiny bloodstain was found near the front right hip of the underwear. Analysis showed that it contained a mixture of DNA profiles from three persons, at least one of whom was male. Neither the deceased nor the appellant could be excluded as contributors to this stain. The genetic material from the third person was too small for comparative analysis. A fourth bloodstain was found near the waistband of the underwear. The genetic material in it was also too small for comparative analysis.

iv) The blood spatter evidence

[49] Detective Constable Craig Moore was qualified to give blood spatter evidence. He drew the following conclusions from his examination of the blood spatter, smears and pools found in unit 4:

• the deceased was hit at least once near the apartment door;

• she was probably carried from the door to the middle of the living room floor, where pooled blood was found on the carpet;

• she was dragged by her arms or shoulders, wearing her jeans and underwear (which were both saturated with blood on the rear) to the inner edge of the staircase leading up to the loft, as evidenced by two smaller pools of blood at the base of the loft stairs;

• she was dragged feet first up the stairs, which left transfer marks from her head on each step of the stairs;

• she was repositioned in the loft and, given the pattern of a pool of blood, it was quite possible that her head had been moved;

• she was hit at least once in the loft while already bleeding and lying on the floor; and

• she was struck at least once while still wearing her underwear, but after it had been exposed.

[50] Typical of wounds to the head, the deceased bled profusely. The first blow to the head would not have caused blood spatter, but subsequent blows to the head would have.

[51] In Detective Constable Moore's opinion, the blood spatter pattern on the deceased's underwear showed that her jeans were down but her underwear was still on and intact when at least one of the blows was struck. The pattern of blood droplets found on the front of the underwear showed that it had been intact and flat (as when worn) when the droplets were deposited. Detective Constable Moore also noted that there was a spatter pattern from the mid-thigh to the knee on the right leg of the deceased's jeans that did not appear on the left leg of the jeans. One possible explanation for this difference was that the assailant had straddled the deceased's left leg before striking the final blow or blows.

[52] Detective Constable Moore also made the following observations, which suggested that the assailant may well have got blood on himself or his clothing: there was a transfer stain on the wall at the bottom of the stairs that was likely from the assailant; there were three similar transfer stains on the wall on the way up the stairs that were likely from the assailant; and there were transfer stains on the deceased's socks, which may have been caused by the assailant dragging her up the stairs by her ankles. As well, there was a large transfer stain on the wall between the apartment door and the bathroom that could have come from the assailant.

[53] Detective Moore testified that if the steel bar was indeed the murder weapon, given the length of the bar and the direction of the blood spatter, the bar would have had a shielding effect. However, the lower portion of the killer’s feet or lower leg might have been hit by blood.

v) The bloodstain footprints

[54] Detective Constable Moore also found bloodstain footprints on the carpet near the bottom of the stairs to the loft. In his opinion, someone had stepped in a pool of blood at the base of the stairs and had then transferred it onto the carpet as he walked away from the stairs towards the living room or towards the door of the apartment. Several shoes, including Lane's, were seized and analyzed. In Detective Constable Moore's opinion, Lane's shoes could have caused the footprints. When Lane's left shoe was tested, DNA analysis showed that the deceased's blood was on it.

vi) The autopsy evidence relevant to sexual assault

[55] Several swabs were taken during the autopsy. Subsequent analysis showed that the appellant's sperm was present in small quantities on swabs taken in the high vaginal area (near the cervix), in the low vaginal area (near the vulva), and on two swabs taken in the buttocks area. An initial test showed there was a single sperm present on an oral swab, but there was not enough genetic material to allow DNA testing. Analysis of the stains found on the deceased's underwear showed the appellant's semen was present in one stain on the larger portion of the underwear. His DNA was not detected in the smaller stains. No semen stains were found on the smaller fragment of the underwear. Tests conducted on the inside and outside of the deceased’s jeans did not detect semen.

[56] As for the physical examination of the deceased, Dr. Rao found there was not a large amount of semen in the high vaginal area. She also found “absolutely no injury” to the vulva and “no bruise, no tear, [and] no abrasion” to the vaginal canal near the cervix. Dr. Rao explained that the absence of injury did not rule out sexual assault. However, she agreed that the absence of injury was also entirely consistent with consensual intercourse.

[57] Dr. Lawrence Komer, a gynaecologist called by the defence, explained that in his experience, consensual intercourse is less likely to cause injury because it usually involves better lubrication. On the other hand, non-consensual intercourse usually results in some damage, even if it is minor. However, he agreed that the literature suggests that visible injuries are observed in only a minority of cases.

vii) The semen leakage evidence

[58] Dr. Rao testified that if a woman had sexual intercourse, dressed and walked around, one would expect to see semen staining on her clothing and on the exterior of the body (including the vulval and anal areas) caused by the leakage of semen from her vagina. She acknowledged that at the preliminary inquiry, she had testified that there was “a possibility” of such leakage. At trial, she said, “I think it normally happens ... Maybe I shouldn't have said it ‘can’. It will happen.”

[59] Dr. Rao acknowledged she had done no studies of semen or its flow from the vagina. Moreover, she agreed that the articles she had read since the preliminary inquiry did not provide her with any additional information.

[60] In addition to being qualified as an expert in gynaecology, Dr. Komer was qualified to give opinion evidence regarding the properties of seminal fluid and its interface with the vagina. He testified that the average healthy male ejaculates between two to five cubic centimetres of semen. In his opinion, the large stain on the deceased’s underwear would represent a fair portion of the semen from a normal ejaculation.

[61] In response to a hypothetical question, Dr. Komer agreed that the amount of semen he saw on the deceased's underwear would be consistent with the appellant's description of his interaction with the deceased. He also agreed that there could still have been some semen available to be deposited into the vagina. Dr. Komer testified that the more semen that is deposited in the vagina, the more likely it is to leak out. Depending on how much semen is in the vagina, there may not be a sufficient amount available to leak out. However, he was unable to say how small that volume would need to be. Moreover, leakage would depend on the individual case and he acknowledged he had never examined the appellant.

III. Issues

[62] The appellant raises the following main issues on appeal:

• Did the trial judge err in permitting Dr. Rao to give expert evidence on semen leakage and did she err in her instructions to the jury on the semen leakage issue?

• Did the trial judge err in her instructions to the jury by improperly revealing that the appellant had a criminal record?

• Did the trial judge err by failing to properly set out the position of the defence and by failing to direct the jury’s attention to the evidence that supported the defence position?

• Did the trial judge err in her instructions to the jury concerning post-offence conduct of the appellant?

• Did the trial judge err in failing to instruct on post-offence conduct in relation to Barry Lane?

[63] For the reasons that follow, we would not give effect to the grounds of appeal related to the trial judge’s handling of the expert evidence or to the alleged revelation of the appellant’s criminal record by the trial judge to the jury. After explaining why we reject the appellant’s position on these issues, we consider the grounds of appeal to which we would give effect.

IV. Analysis

1. Did the trial judge err by permitting Dr. Rao to give expert evidence on semen leakage and further err in her instructions to the jury concerning the semen issue?

[64] The appellant submits that the trial judge made several errors in relation to the semen leakage evidence. First, the trial judge erred in permitting Dr. Rao to give opinion evidence on semen leakage, a subject that was beyond her expertise as a forensic pathologist. Second, the trial judge failed to instruct the jury on the effect of Dr. Rao’s inconsistent opinion given at the preliminary inquiry. Third, the trial judge minimized the fact of the inconsistent opinion in her review of Dr. Rao’s evidence. Fourth, the trial judge erred in failing to instruct the jury on how to weigh conflicting expert opinion.

[65] We do not accept any of these submissions.

i) The evidence given by Dr. Rao concerning semen leakage was not beyond her field of expertise

[66] The substance of Dr. Rao's evidence on this issue was that seminal fluid deposited inside the vagina can flow out of the vagina due to gravity. Seminal fluid can flow out of the vagina and stay on “exterior surfaces of the body”. It can also stain the anal and vulval area, and it can stain clothing. Moreover, one would expect leakage of deposited semen to occur following intercourse if the woman was up and walking around.

[67] In cross-examination, Dr. Rao expressed the view that this leakage “normally happens”. Dr. Rao also testified that it is possible for seminal fluid that is on an exterior surface of the body to flow into the interior area of the vagina if the person is lying on her back.

[68] We reject the appellant’s submission that the trial judge erred by failing to instruct the jury to disregard Dr. Rao's evidence on semen leakage because it was outside her area of expertise.

[69] Dr. Rao is a forensic pathologist and was qualified to offer opinions in the areas of the observation, investigation, interpretation and causation of injury to human beings. During a voir dire related to this specific line of questioning, Dr. Rao testified that, as part of her training and education as a forensic pathologist, she was trained to investigate, collect and detect evidence of sexual assault. This training included education on the movement of semen, how long semen can survive in the vaginal canal and in the cervix, and how long it can remain in a dead person.

[70] In our opinion, Dr. Rao was qualified by virtue of her training and experience to give opinion evidence on this subject and the matters being raised on appeal go to the weight to be afforded to her evidence rather than to its admissibility based on her expertise. Finally, we note that although defence counsel at trial initially objected to the Crown pursuing this line of questioning with Dr. Rao, ultimately he abandoned his objection.

ii) The trial judge did not err in failing to give a specific instruction relating to Dr. Rao's prior inconsistent opinion

[71] The trial judge gave the jury standard instructions relating to “prior inconsistent statements of a non-accused witness”. On appeal, the appellant contends that those instructions were inadequate to deal with Dr. Rao’s evidence for two reasons. First, because the standard instructions were given well after the trial judge reviewed Dr. Rao's evidence. Second, because the instructions referred to inconsistencies in a witness’s “version of events” as opposed to inconsistencies in a witness’s opinion.

[72] We would not give effect to these arguments. We have no reason to believe that the jury would have approached the trial judge's instructions in a piecemeal fashion or that it would have failed to take account of general instructions addressing the jury's approach to evidence because they were given after the trial judge reviewed some of the evidence.

[73] Further, although the trial judge's instructions referred in places to a witness’s “version of events”, the instructions about inconsistencies began with this important proposition: “When a witness says one thing in the witness box but has said something quite different on an earlier occasion, your common sense tells you that the fact that the witness has given different versions may be important in deciding how much or whether you believe or rely on that witness’s testimony.”

[74] In addition, the instructions reminded the jury that several witnesses were examined about differences between their trial testimony and their preliminary inquiry testimony. When the trial judge reviewed Dr. Rao’s evidence, she referred specifically to the fact that Dr. Rao was cross-examined about “an inconsistency between her trial testimony and that provided at an earlier preliminary hearing.”

[75] In the circumstances, we see no air of reality to the suggestion that the jury would not have applied the prior inconsistent statement instruction to Dr. Rao’s evidence.

iii) The trial judge did not minimize the effect of the inconsistency in Dr. Rao’s opinion evidence

[76] Following the trial judge’s charge, defence counsel at trial objected to the fact that the trial judge told the jury that Dr. Rao testified in re-examination that she had read some additional material when preparing to testify at trial but failed to remind the jury that Dr. Rao acknowledged that the additional material did not add anything to what she knew previously. The trial judge declined to re-charge on this point.

[77] On appeal, the appellant renews his objection, arguing that the trial judge’s summary of Dr. Rao’s evidence minimized the effect of the alleged inconsistency in her evidence.

[78] Although we agree that it might have been preferable had the trial judge re-charged as requested, we are satisfied that the trial judge’s instructions alerted the jury to the alleged inconsistency in Dr. Rao’s evidence. Moreover, the instructions also made it clear that it was the jury’s recollection of the evidence that was important, not the trial judge’s. In this instance, the Crown asked Dr. Rao two questions in re-examination, both related to the same issue. It is difficult to conceive how the jury would have missed the bottom-line of the evidence given in re-examination, namely, that the additional articles Dr. Rao had read did not provide her with any further information.

[79] Re-charging to expand on the trial judge’s summary of the evidence is always a difficult problem because the parties almost inevitably disagree on what should be included in the re-charge. In the circumstances of this case, we are not persuaded the trial judge erred by failing to re-charge as requested.

iv) The trial judge did not err in failing to instruct the jury on how to weigh conflicting expert opinions

[80] After reviewing the opinion evidence given at trial, the trial judge gave the jury the following instruction:

The opinions of experts are just like the testimony of any other witnesses. Just because an expert has given an opinion does not require you to accept it. You may believe or rely upon the opinion as much or as little as you see fit. You should consider the education, training and experience of the expert, the reasons given for the opinion, the suitability of the methods used and the rest of the evidence in the case when you decide how much or how little to rely on the opinions. It is up to you to decide.

[81] During pre-charge discussions, the Crown submitted that it was unnecessary to give an instruction from Watt J.A.'s Ontario Specimen Jury Instructions (Criminal) (Toronto: Thomson Carswell, 2002), regarding a conflict in expert opinions because the only potential conflict was between the evidence of Drs. Rao and Komer, and there was no real disagreement between their opinions. Defence counsel at trial agreed.

[82] On appeal, the appellant submits that because the opinions of the two experts diverged on a key issue, it was incumbent on the trial judge to further assist the jury concerning how to weigh the competing opinions.

[83] We do not accept this submission. Like the trial judge and counsel present at the trial, we see no basis for concluding that the opinions of Drs. Rao and Komer were clearly conflicting.

[84] Although Dr. Rao testified that semen leakage normally happens due to gravity, she did not unequivocally disavow her evidence at the preliminary inquiry that leakage might not occur if “ejaculation is high into the canal”:

Defence Counsel: ...Would you agree that your answers appeared to admit the possibility that seminal fluid that had been deposited in the vagina would not necessarily have leaked, so as to leak out and thereby necessarily get on garments that would be in contact with the vagina?

Dr. Rao: That's what I said, yes.

Defence Counsel: And … I hear your evidence that doesn’t sound like you’re admitting that possibility right now. Would you admit that possibility right now?

Dr. Rao: I suppose since I committed, it can; but most of the time, again, if there’s been an ejaculation into the vaginal area and if there is movement, the position changed from horizontal to vertical there can, through gravity, there can be some leakage.

[85] Moreover, the focus of Dr. Rao's evidence at trial was not about the possibility that leakage would not occur depending on the amount of semen deposited. Read together, we see no significant difference between her evidence and that of Dr. Komer, who testified that if only a small amount of semen is deposited, semen may not leak out as a result of gravity.

[86] In any event, this aspect of the evidence of both doctors strikes us as being, to a large extent, a matter of common sense that did not require complex instructions.

[87] In all the circumstances, we conclude that it was unnecessary for the trial judge to provide the jury with additional instructions concerning how to approach the expert evidence.

2. Did the trial judge err in her instructions to the jury by improperly revealing that the appellant had a criminal record?

[88] The trial judge gave the jury a standard instruction concerning how to approach prior convictions of non-accused witnesses. In the course of doing so, she told the jury that the instruction applied to a specific list of witnesses “who admitted that they have previously been convicted of various criminal offences.” The trial judge then said, “[This instruction] does not apply to [the appellant].”

[89] The appellant submits that this instruction had the effect of conveying to the jury that the appellant had a criminal record and that the instruction was both improper and prejudicial.

[90] We do not accept this submission. The trial judge began this instruction with the following words: “Let's talk a bit about previous convictions of non-accused witnesses. That is, the criminal records that were introduced.” She then set out the list of witnesses to whom the instruction applied and made the impugned comment, “It does not apply to Carl Hall.”

[91] Read fairly, the trial judge was doing no more than making it abundantly clear to the jury that the instruction did not apply to the appellant. Further, no suggestion was made at the trial that the appellant had a criminal record. Moreover, the jury was given standard instructions to act only on the evidence led and not to speculate. In all the circumstances, we cannot agree with the suggestion that the jury would have leapt to the conclusion that the appellant had a criminal record.

[92] Having explained why we reject these grounds of appeal, we now turn to the grounds of appeal to which we would give effect.

3. Did the trial judge err by failing to properly set out the position of the defence and by failing to direct the jury’s attention to the evidence that supported the defence position?

i) Background

[93] During the course of the trial, the trial judge asked counsel to provide her with brief synopses of their respective positions to assist in preparing her jury charge. Trial counsel made their closing addresses on Wednesday, February 15, 2006 and undertook to provide their synopses first thing the following morning.

[94] Crown counsel apparently did not receive the defence synopsis until the evening of Thursday, February 16, 2006. On Friday, February 17, 2006, just before the trial judge was about to begin her jury instructions, Crown counsel objected to the defence synopsis, claiming that it was an attempt to reply to the Crown's jury address. The trial judge suggested that counsel attempt to resolve the matter as the day progressed and proceeded with her instructions to the jury.

[95] At the lunch break, the trial judge agreed it was inappropriate for counsel to attempt to enlarge on their closing addresses in their synopses, and once again encouraged counsel to resolve the matter. When that did not occur, the trial judge set out the position of the Crown and the defence in brief compass in her jury charge as follows:

The theory of the Crown is that they have proven their case against Mr. Hall beyond a reasonable doubt. They suggest that the expert evidence that you have heard proves such sufficiently so as to leave you with no doubt. Crown points to the inconsistencies in Mr. Hall's [statement to the police] and his conversation with Ms. McLean, subsequently, as demonstrative of Mr. Hall's attempts to distance himself from the murder.

In a nutshell, the theory of the defence case is that the Crown has not proven beyond a reasonable doubt that Carl Hall killed Jackie McLean … As you will recall, Carl Hall indicates that he did not kill her but, rather, he indicates that it is Barry Lane who did so. The defence say that Mr. Lane had the motive, robbery, and the opportunity to kill Ms. McLean and that Mr. Hall had neither. Most particularly, based on the evidence of the witnesses, the defence position is that he had insufficient time to do what was alleged. Counsel, in a similar fashion to the Crown, relies on the weaknesses of Barry Lane's story. His inconsistencies and failure to admit ever having anything to do with Ms. McLean over the course of that night is demonstrative of his attempts to distance himself from the murder.

[96] In a brief re-charge at the request of defence counsel, the trial judge clarified that, although it was the defence position at trial that Lane was the killer, Mr. Hall did not suggest that Lane was the perpetrator in his statement to the police.

ii) The appellant's position on appeal

[97] The appellant contends that the trial judge erred in setting out the defence position by focusing on counsel's alternative suspect argument and ignoring the primary defence, namely, that the appellant had consensual sexual intercourse with the deceased but did not kill her. Moreover, the trial judge failed to direct the jury’s attention to important aspects of the evidence that supported the defence position.

iii) Discussion

[98] As Sharpe J.A. wrote in R. v. Mahalingan (2006), 2006 CanLII 12957 (ON CA), 80 O.R. (3d) 35 (C.A.), at para. 15: “[T]here is no simple template that can be uniformly applied when instructing a jury and no simple formula by which an appellate court can assess the adequacy of a jury charge.” Despite this, there are some elements that must be present in order for a charge to the jury to be adequate. In R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.), at para. 27, Doherty J.A. explained that by the end of a trial judge’s jury instruction, the jury must understand:

• the factual issues which had to be resolved;

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

• the positions of the parties; and

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

[99] The following statement of Taschereau J. in Azoulay v. The Queen, [1952] S.C.R. 495, at pp. 497-98, has often been cited in reference to this point:

The rule which has been laid down, and consistently followed is that in a jury trial the presiding judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them.

[100] In this case, the primary defence position at trial was simple. The appellant acknowledged having consensual sexual intercourse with the deceased but maintained that he did not kill her. Further, the defence submitted that Barry Lane could well have been the killer.

[101] However, while the primary defence position at trial was simple, it consisted of several elements, some of which were nuanced and therefore required explanation. In the circumstances, it was necessary that the trial judge refer to the evidence in some detail for the defence position to be understood.

[102] The Crown’s expert evidence about the blood spatter on the deceased’s underwear stood essentially unchallenged and created an overwhelming inference that the deceased was wearing her underwear when she was killed. Although the appellant said initially in his statement to the police that the deceased left her underwear in the room after they had consensual intercourse, later in his statement, he indicated that he did not watch the deceased get dressed. He also said the deceased’s underwear was “in one piece I think.”

[103] Accordingly, the primary defence position at trial was premised, at least in part, on the jury drawing an inference that the deceased put her underwear back on following intercourse. Moreover, for the jury to appreciate the availability of this inference, it was necessary to draw its attention to the latter portion of the appellant’s statement.

[104] Further, contrary to the Crown’s position that the expert evidence undermined the appellant’s version of events as set out in his statement to the police, the defence maintained that the weight of the evidence at trial was consistent with the appellant's version, namely, that he attempted to withdraw during consensual intercourse and that he did not watch the deceased get dressed afterwards, leaving open the possibility that the deceased put her underwear back on following intercourse.

[105] Examples of such evidence were, first, that Dr. Rao found no injury to the deceased's vulva or vagina. Dr. Komer testified that non-consensual intercourse usually results in some damage, even if it is minor. Dr. Rao agreed that the absence of injury was entirely consistent with consensual intercourse.

[106] Further, Dr. Komer’s evidence was capable of supporting the appellant’s description of attempting to withdraw before ejaculating and ejaculating into the deceased’s underwear, and his remark to the effect that he may have started to ejaculate before he could withdraw completely. In response to a hypothetical question at trial, Dr. Komer confirmed that the amount of semen on the deceased’s underwear was consistent with the male attempting to withdraw at the time of ejaculation. Also potentially consistent with the appellant’s version of events, Dr. Rao found only a small amount of semen in the high vaginal area. Moreover, Dr. Komer testified that, depending on how much semen is in the vagina, none may be available to leak out. Dr. Rao's evidence did not address, and therefore did not contradict, this specific point.

[107] Further evidence capable of supporting the defence position was that neither Crystal nor the people at the Detox Centre who dealt with the appellant observed blood on his clothing or any injuries on his body. Forensic evidence at the scene suggested that the killer would have had blood on his clothing or on his body.

[108] An additional element of the defence position as articulated in defence counsel’s closing was that the Crown failed to elicit direct evidence from its experts that would have supported key aspects of its case. In particular, the Crown adduced no direct evidence to support its position that if the victim put on her underwear and jeans after intercourse with the appellant, semen would necessarily transfer from the deceased's underwear to her jeans.

[109] In all the circumstances, a cursory description of the defence position that failed to even mention the theory of consensual intercourse and that also failed to describe the evidence capable of supporting that theory was simply not adequate to fairly present the position of the defence.

[110] As Doherty J.A. explained in MacKinnon, at para. 29, the trial judge should provide “references to the evidence which are sufficient in the context of the case and the entirety of the charge to alert the jury to the particular parts of the evidence which are significant to particular issues and to the positions taken by the parties on those issues.”

[111] In contrast with the approach described in MacKinnon, in this case, the trial judge recited the evidence of the witnesses without explaining how that evidence connected to the appellant’s consensual intercourse theory.

[112] Further, when setting out the position of the defence, the trial judge did not direct the jury’s attention to some of the important evidence that was capable of supporting the appellant’s claim that Barry Lane was the killer.

[113] For example, the trial judge did not direct the jury’s attention to the evidence about Lane’s continuing presence at the Sandbar Hotel after the party; about him “lurking” in the third-floor hallway; about his presence and strange behaviour soon after the deceased’s body was found; about the fact that he was not wearing a shirt after the murder; that his bloody footprints were found in the apartment leading away from a pool of the deceased’s blood; or that the victim’s blood was found on the bottom of Lane’s shoes, on the side of the sole and on one of the shoelace eyelets. Similarly, the trial judge did not remind the jury that a third person’s DNA was found on the deceased’s underwear.

[114] Although we have no doubt that the jury was well aware that the appellant claimed he had consensual sexual intercourse with the deceased but did not kill her, in the circumstances, we conclude that the trial judge erred in law by failing to fully explain the position of the defence and to outline the evidence that was capable of supporting it.

[115] We appreciate that the trial judge in this case was put in a difficult position because of the eleventh hour dispute between counsel about the defence position as articulated in the defence synopsis. In our view, the practice adopted by many trial judges of asking counsel to submit a brief statement of their respective positions to assist with preparation of the jury charge is a good one. Nonetheless, it remains the trial judge’s obligation to ensure that the positions of the parties and the evidence supporting their respective positions are properly explained to the jury.

4. Did the trial judge err in her instructions to the jury concerning the appellant’s post-offence conduct?

[116] In his closing, Crown counsel referred to three conversations that the appellant had following the murder: two with his girlfriend, Crystal McLean, and one with the police following his arrest. The trial judge identified the two conversations with Crystal as possible examples of post-offence conduct and instructed the jury on them accordingly. In closing submissions, the Crown pointed to the appellant’s statement to the police as a fabricated statement and as evidence of a fabricated alibi. In the charge, the trial judge referred in passing to the Crown’s suggested interpretation of the statement to police.

[117] In our view, the trial judge’s instructions on the post-offence conduct evidence relied on by the Crown – the appellant’s conversations with Crystal and his statement to the police – were flawed in several respects. In addition, the appellant’s statement to the police was admitted as an alleged fabricated exculpatory statement without proper regard to the legal principles governing its admissibility as such, and without charging the jury on the proper approach to the use of the statement. Taken together, these flaws constitute reversible error.

[118] We first explain the deficiencies in the charge related to the appellant’s statements to Crystal and then discuss the errors related to the treatment of the appellant’s statement to the police.

i) The appellant’s conversations with Crystal

[119] The first conversation between the appellant and Crystal that the Crown relied on as post-offence conduct evidence occurred at the Wesley Centre on the night of the murder. Crystal testified that when the appellant arrived at the Wesley Centre, he told her that he had done something bad, and he “didn’t want to explain anything to me.” She also testified that the appellant said that he wanted to leave with her for the west, as they had previously discussed. However, she broke up with him and he left.

[120] The second conversation tendered by the Crown between the appellant and Crystal occurred some 8 months later, on March 8, 2002 when, at the behest of the police, Crystal visited the appellant where he was incarcerated at Penetanguishene, near Midland. The fact of his incarceration was not disclosed to the jury. She told the appellant that the police were asking her questions about him and about the night they split up. The Midland conversation lasted approximately 30-minutes and was audio-recorded and transcribed by police.

[121] At trial, Crystal was asked by both Crown counsel in examination in chief and by defence counsel in cross-examination to read aloud various portions of the Midland conversation to the jury. The Crown asked her to read out some seven extracts from this conversation. For present purposes, it is only necessary to give examples of the extracted passages.

[122] In the first portion of the conversation elicited by the Crown, the appellant told Crystal to tell the police nothing. He immediately went on to tell her to tell the police “[t]hat you seen me, I don’t know. Tell them everything that happened. I’ve got nothing to hide. Like I don’t know what this is about... I’ve got nothing to hide. Tell them whatever. That you seen me and me and you broke up....” He went on to ask Crystal to “keep avoiding them, do me that favour... [T]ell them... that I was with you that night. We argued, but I was with you for a good hour.”

[123] In a later passage elicited by the Crown, Crystal asked the appellant if she should tell police that he was with her “the whole night”. The following exchange ensued:

Appellant: With you for a couple of hours.

Crystal: During what time frame?

Appellant: I don’t know.

Crystal: Say midnight till three or 11 till three or something?

Appellant: Before that, yeah, whatever, I don’t – I don’t know – whatever.

Crystal: You were with me the whole night.

Appellant: Basically, just about, yeah.

Crystal: All right.

Appellant: After I left, say he was with Barry for a little bit split up with him and he was with me.

[124] In the next reference elicited by the Crown, the appellant said to Crystal that he was with her “for a while”. She said maybe for “like 45 minutes.” He replied: “Over an hour.” She responded: “Like 45 minutes.”

[125] The last exchange relied on by the Crown was as follows:

Crystal: So you just want me to tell them you were with me most of the night?

Appellant: Yeah.

Crystal: All right I can do that.

Appellant: Tell them nothing though, if you can, you know what I mean?

[126] In cross-examination, defence counsel asked Crystal to read portions of the conversation that had occurred either soon before or after the passages elicited by the Crown. For example, in a passage that came before the first extract read in chief, Crystal told the appellant that the police wanted to talk to her about him and asked what he wanted her to say. He replied: “Whatever.” She asked him what had happened that night and he replied: “Nothing happened that night. What are you talking about?”

[127] The defence also had Crystal read a passage that followed the first extract elicited by the Crown. Crystal told the appellant that he should let her know what to tell police before she tells them something and “our stories don’t match up.” He responded: “[T]ell them I was with you that night for a little while. We argued. That’s it. What else can you tell them, what else can you?”

[128] In his closing address, Crown counsel suggested to the jury that in the Midland conversation, the appellant was trying to provide himself with a false alibi. Crown counsel stated:

Here again, Mr. Hall is purposefully, purposefully trying to expand the amount of time that he spent with Crystal at a very crucial time in the evening. He’s very much trying to provide himself with an alibi. You might very well ask yourself why an innocent man would tell a witness, a witness to his whereabouts at that very crucial point in time: a) avoid the police; b) tell them nothing; or, failing the above, c) tell them she was with him for most of the night.

[129] In her charge, discussed below, the trial judge referred to both conversations with Crystal under the heading of post-offence conduct.

ii) The law on post-offence conduct evidence

[130] The significance of post-offence conduct evidence and the proper approach to such evidence by a jury, including the rejection of the traditional label, “consciousness of guilt”, was explained by the Supreme Court of Canada in R. v. White (1998), 1998 CanLII 789 (SCC), 125 C.C.C. (3d) 385. The court adopted the following succinct explanation of the logical significance of post-offence conduct by Weiler J.A. from R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 117 C.C.C. (3d) 226 (Ont. C.A.):

Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.

[131] However, the problem with post-offence conduct evidence is that it is often at best equivocal, and as the court stated in White at para. 22, “susceptible to jury error”. Evidence of post-offence conduct is not evidence of the commission of a crime or its planning, which a jury can assess to determine the facts of an event and the identity of the perpetrator. Rather, it is evidence of what someone did after an event, which proves nothing directly, but from which the jury is asked to conduct a psychological analysis of what a person logically would or might do in given circumstances.

[132] The court in White observed that the label “consciousness of guilt” should not be used for two reasons. First, the label reflects a conclusion of guilt before any analysis or weighing of the available inferences from the conduct. Second, it suggests that this evidence is a special category, rather than just a piece of circumstantial evidence to be weighed with all of the other evidence.

[133] The Supreme Court in White went on to reject the defence position that the criminal standard of proof beyond a reasonable doubt, which applies to the ultimate verdict, should also be applied to evidence of post-offence conduct. The court reiterated the basic proposition that the criminal standard of proof applies only to the final determination of guilt or innocence and not to individual items of evidence, including post-offence conduct evidence. Therefore, the jury does not first determine beyond a reasonable doubt whether the Crown’s interpretation of the impugned post-offence conduct is the correct one before considering that evidence in the context of all the other evidence. It may be only in the latter context that the jury can fully and properly assess the significance of the accused’s conduct. As stated by the court at para. 57, it is “preferable simply…to leave evidence of flight or concealment evaluated, but somewhat at large until the final stage of putting all the evidence together and seeing if it proves the case beyond a reasonable doubt.”

[134] The court explained, at para. 54, that applying the criminal standard of proof to post-offence conduct would “set the deliberation process backwards”:

[I]nstead of directing the jury to use the evidence of post-offence conduct in their determination of guilt or innocence, it would require them to decide the ultimate issue as a predicate to using the evidence in the first place. It would collapse the entire jury deliberation into an analysis of the significance of a single act of the accused, and would make all the other evidence in the case merely supportive of that determination. Such an instruction would have the perverse effect of transforming any piece of evidence of after-the-fact conduct, no matter how minor in the scheme of the Crown’s case, into crucial evidence.

[135] The court did not articulate specific language to be used in instructing juries on how to assess and approach evidence of post-offence conduct. However, in the course of deciding the issue of the standard of proof that should be applied by the jury to post-offence conduct evidence, the court suggested a number of explanations and cautions that a trial judge should give to the jury as part of the charge.

[136] The trial judge must provide a clear cautionary instruction to the jury against drawing incriminating inferences from post-offence conduct without considering alternate explanations for the impugned conduct. The trial judge must also instruct the jury that “they should reserve their final judgment about the meaning of the accused’s conduct until all the evidence has been considered in the normal course of their deliberations”: White, at para. 57.

[137] As noted by the court at para. 21, post-offence conduct evidence is like other pieces of circumstantial evidence that may be subject to competing interpretations. To meet the circumstantial evidence test, “[it] must be weighed by the jury, in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion.”

[138] However, it is unlike other pieces of circumstantial evidence in a very significant way. Other circumstantial evidence, such as the classic example of wet ground in the morning, need only be consistent with a conclusion that a certain fact occurred, e.g., that it rained overnight. That fact might be an important piece of the Crown’s case. But it is just one piece that, together with others, may prove guilt beyond a reasonable doubt. The difference with post-offence conduct circumstantial evidence is that, to be evidence that meets the circumstantial evidence test, it must be consistent only with the ultimate conclusion of guilt. It is the requirement of meeting the test for circumstantial evidence that creates the impression of a tautological analytical exercise by the jury. That is why it is so important for the jury to assess the post-offence conduct only as part of its ultimate assessment in weighing all of the evidence at the stage of determining whether guilt has been proved beyond a reasonable doubt, rather than treating it as a separate category.

[139] Having set out the applicable law, we now assess the appellant’s objections to the trial judge’s instructions on the use the jury could make of the appellant’s conversations with Crystal as possible post-offence conduct evidence.

iii) The appellant’s objections to the charge on post-offence conduct related to the conversations with Crystal

[140] In her charge on post-offence conduct related to the appellant’s two conversations with Crystal, the trial judge provided the jury with the warnings and cautions required by the Supreme Court in White. First, she warned the jury not to jump to the conclusion from the conversations with Crystal that the appellant was conscious of committing the offence charged. Second, she told the jury that there could be other explanations for his conduct. She also told the jury that they must not use the evidence of what the appellant said or did afterwards in deciding or helping decide that he committed the offence unless they rejected any other explanation for it.

[141] The appellant asserts two objections to the charge on post-offence conduct. The appellant’s first objection is to the concluding paragraph of the trial judge’s post-offence conduct instruction:

If you do not or cannot find that Carl Hall did or said those things because he was conscious of having done what is alleged against him, you must not use this evidence in deciding or helping you decide that Carl Hall committed the offence charged. On the other hand, if you find that anything Carl Hall did or said afterwards was because he was conscious of having done what is alleged against him, you may consider this evidence together with all of the other evidence in reaching your verdict.

[142] The appellant submits that this wording invited the jury to engage in the tautological reasoning that the Supreme Court disapproved of in White, namely, requiring them to determine whether the appellant was conscious that he committed the offence before they could use the post-offence conduct evidence to decide if he committed the offence.

[143] We share this concern. This instruction directed the jury to decide whether the appellant engaged in the post-offence conduct because he was conscious that he committed the offence. The jury was thus invited to jump directly to the issue of guilt as a precondition to deciding the use they would make of the post-offence conduct evidence; that is, conducting the deliberation process backwards as described in White, albeit not beyond a reasonable doubt as in that case.

[144] Counsel for the appellant acknowledges that the wording for the trial judge’s charge in this case is based on Watt J.A.’s Ontario Specimen Jury Instructions (Criminal): 2005 Supplement (Toronto: Thomson Carswell, 2005) at p. 72. The template for the above paragraph from the 2005 Supplement revises the wording that appeared in the 2002 edition of the Specimen Jury Instructions. It appears that the purpose of the revised wording in the model charge is to benefit the accused by ensuring that a jury will use post-offence conduct as a piece of circumstantial evidence only if it is consistent with guilt and nothing else. However, the wording of the charge is such that the jury is asked to decide if the accused acted in the way he did because he is conscious that he committed the offence. This direction runs afoul of the holding in White that the jury is not to treat post-offence conduct evidence as a special category of circumstantial evidence, but rather is only to weigh the post-offence conduct evidence together with the rest of the evidence when deciding the issue of guilt or innocence.

[145] To be consistent with White and the context in which the jury is to properly assess post-offence conduct evidence, the jury should instead be instructed along the lines suggested by the Supreme Court in R. v. Menard (1998), 1998 CanLII 790 (SCC), 125 C.C.C. (3d) 416, at para. 24. Adapting the language used in Menard to the facts of this case, the last paragraph of the charge on post-offence conduct evidence could have read:

Whether Mr. Hall’s statements to Crystal, either at the Wesley Center or in Midland, are attempts by him to conceal his role in the murder is for you to decide. Remember that you must look at this matter in light of all the evidence and it is on a consideration of all the evidence that you decide whether the Crown has proven his guilt beyond a reasonable doubt.

[146] Standing on its own, this flaw in the charge would not constitute reversible error. Indeed, we note that this specific objection to the charge was not raised by defence counsel at trial. However, there were other deficiencies in the charge on post-offence conduct in this case that, taken together, amount to legal error.

[147] These deficiencies relate to the trial judge’s failure to articulate the theory of why the appellant’s Midland conversation should be linked with guilt, and her failure to fully and fairly summarize this body of evidence and to explain to the jury possible alternative and innocent explanations for his statements to Crystal.

[148] The Crown presented the Midland conversation as evidence that the appellant was trying to get Crystal to expand the time they were together in order to provide him with a false alibi. However, his statements in their totality can be viewed as quite equivocal. For example, although at one point the appellant tells her to tell the police nothing, in the next breath he tells her to tell them “everything that happened, I’ve got nothing to hide.” At various points in the conversation, the appellant asked Crystal to tell police that they were together “a little while”, or for “a good hour” – in other words, timeframes that would not provide him with a complete alibi. While it is true that at other points in the conversation, the appellant agreed that Crystal should tell police they were together the whole night, he did so only after Crystal repeatedly suggested to him that she should tell the police this.

[149] Also of concern is that Crystal’s evidence of her conversation with the appellant at Midland came out in a disjointed manner at trial. Crown counsel highlighted seven areas that he asked her to read out. In cross-examination, defence counsel asked her to read other portions, some of which either temporally preceded or came after the sections she had read in chief. It would have been difficult for the jury to follow how the conversation actually unfolded. Rather than assist the jury to sort out the meaning of this entire conversation in the charge, the trial judge recited only from the sections of the conversation that were elicited by the Crown.

[150] Although the trial judge warned the jury that it was particularly important to consider evidence of any other explanations for the appellant’s conduct, she did not suggest to them what other possible explanations there were. One alternative was that the appellant was not trying to establish a false alibi, but was essentially telling Crystal to tell the police what she knew. He initially requested that she tell the police that she had seen him that night “like for a good hour”, which was not far from the time established by the surveillance cameras at the Wesley Centre. While he later agreed with Crystal’s suggestion that she tell police they were together the whole night, a jury might conclude that it was actually Crystal who was suggesting the false alibi on her own initiative and not at the appellant’s behest.

[151] In pre-charge submissions, the appellant’s trial counsel objected to the characterization of the Midland conversation as post-offence conduct evidence. In our view, there was merit to that objection. Indeed given the highly equivocal nature of the Midland conversation, before allowing the Crown to tender this conversation as post-offence conduct evidence, it was incumbent on the trial judge to decide its admissibility as such. Having admitted the conversation, it was particularly important for the trial judge to review its contents in an even-handed manner and to set out to the jury the possible alternative interpretations that were consistent with innocence.

[152] Regarding the appellant’s conversation with Crystal at the Wesley Centre on the night of the murder, the trial judge failed to tell the jury that it was only available as possible post-offence conduct if the conversation occurred after the offence was committed. Otherwise, of course, the conversation could not support an inference that the conduct reflected a consciousness of having committed the offence.

[153] The Crown had two alternate theories for the timing of the offence. One was that the murder took place before this conversation, while the alternate theory was that the appellant committed the murder after Crystal broke up with him at the Wesley Centre and before he went to the Detox Centre. If the conversation occurred before the murder, then the content corroborated the appellant’s story to police that he had consensual sex with the victim. His reference to having done something bad could be about having sex with a prostitute, and Crystal’s comment that he “smelled like a whore” could support his story to the police.

[154] Instead of pointing out this alternative explanation for the first conversation with Crystal, which would have supported the defence theory of the case, the trial judge permitted the jury to assume that this conversation occurred after the offence.

[155] The cumulative effect of the deficiencies in the charge regarding the use to be made of the appellant’s conversations with Crystal was to leave the jury without the tools to properly analyze and weigh the significance of these conversations as post-offence conduct, with the result that the jury may have given that evidence much more prejudicial significance than was warranted. The effect of these deficiencies in the charge on post-offence conduct related to the conversations with Crystal was compounded by the trial judge’s treatment of the appellant’s statement to the police.

iv) The appellant’s statement to the police following his arrest

[156] The week before the appellant’s arrest on March 16, 2002, the police took a DNA sample from him. When they matched it with the semen found at the scene of the murder, they arrested the appellant and conducted an interview where he gave the exculpatory statement explaining the DNA match by saying that he had had consensual sex with the victim that evening and left her alive at the apartment party.

[157] The Crown wanted to introduce the statement, apparently in order to argue that the appellant concocted a false explanation for his semen at the scene and that he was giving a false alibi to the police, while the defence objected to its introduction. A voir dire was held where the two issues were voluntariness and right to counsel. No issue was raised nor was any ruling made on the admissibility of the statement as a fabricated exculpatory statement.

[158] In his closing address to the jury, Crown counsel suggested five times that the appellant had fabricated his story of consensual sex in his statement to the police in order to provide an innocent, but false, explanation for his semen at the scene. To that end, Crown counsel told the jury that the appellant purposely lied about two subjects: the romantic nature of the time he spent with the deceased to support the consensual nature of the intercourse; and the amount of time he spent with Crystal in order to try to give himself an alibi. After elaborating on these two themes with details from the evidence, the Crown linked the police statement with the Midland conversation, from which he picked out only the portions where the appellant said to tell the police nothing, or that she was with him most of the night. The Crown told the jury that the appellant was again purposefully lying to give himself an alibi.

[159] The trial judge did not give the jury an instruction on the law regarding false alibi or on the distinction between evidence by an accused that is disbelieved and evidence that is concocted, nor was she asked by counsel to do so.[^1]

[160] The law regarding false alibi was discussed by O’Connor A.C.J.O. in R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.), at para. 17:

It is well settled that there is a distinction between an alibi that is disbelieved and, therefore, rejected and an alibi that is found to be concocted or deliberately fabricated. The former has no evidentiary value; the latter can constitute evidence from which an inference of guilt may be drawn: R. v. Hibbert (2002), 2002 SCC 39, 163 C.C.C. (3d) 129 at pp. 148-52 (S.C.C.); R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 126 C.C.C. (3d) 545 (Ont. C.A.) (leave to appeal dismissed, [1998] S.C.C.A. No. 450 (QL)); and R. v. Blazeiko (2000), 2000 CanLII 14726 (ON CA), 145 C.C.C. (3d) 557 (Ont. C.A.). In R. v. Hibbert, Arbour J. made it clear at p. 151 that, “[e]ven if an alibi is advanced by the accused himself and is rejected, the finding that the alibi is untrue cannot serve to corroborate or complement the case for the prosecution, let alone permit an inference that the accused is guilty”. However, where the Crown adduces evidence from which it can be inferred that an accused fabricated an alibi, that evidence is capable of supporting an inference of guilt.

[161] O’Connor A.C.J.O. also confirmed at para. 18 that the need for independent evidence of fabrication applies not only to disbelieved alibis, but to disbelieved exculpatory statements generally. Only where the Crown adduces evidence from which it can be adduced that the accused fabricated the exculpatory statement can an adverse inference be drawn from it.

[162] In R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 126 C.C.C. (3d) 545 (Ont. C.A.), Doherty J.A. explained the rationale for the distinction between a disbelieved exculpatory statement of the accused and a concocted statement of the accused and the need for independent evidence of concoction, at pp. 551-52:

If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused’s version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown’s obligation to prove an accused’s guilt beyond a reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused’s version of events. [References omitted.]

[163] In O’Connor, as in this case, the accused’s exculpatory statement to police was admitted following a voluntariness and Charter voir dire, with no consideration of or ruling on the effect of the Crown’s allegation of fabrication. This was an error because, if there was no independent evidence that the exculpatory statement was concocted, it had no evidentiary value and should not have been admitted into evidence. Quoting again from O’Connor, at para. 30:

When the Crown seeks to introduce evidence to show that an accused has fabricated out-of-court statement[s], the judge should determine at that stage whether there is sufficient evidence of fabrication, independent of the evidence tending to show the falsity of the statements, which if accepted could reasonably support a finding of fabrication. If there is not sufficient evidence to support a finding of fabrication, then the Crown should not be permitted to call the evidence showing the accused’s statements were false. There would be no purpose in the Crown proving that the accused made a false statement if the inference from a conclusion of fabrication is not available. To call the evidence showing an accused’s statement is false in that circumstance could only tend to confuse the trier of fact and possibly unfairly prejudice the accused.

[164] In O’Connor, the court set out the procedure to be used when the Crown seeks to have the jury draw an inference against the accused based on fabrication. At the admissibility stage, the court must address whether there is sufficient evidence, independent of the falsity of the statements, to demonstrate fabrication. As pointed out by Doherty J.A. in Coutts at para. 16: “Evidence that supports the case for the Crown, which if accepted would result in the rejection of the accused’s evidence as unworthy of belief, should not be equated with evidence of concoction.” At the admissibility stage, the trial judge must be careful not to treat evidence that demonstrates the falsity of the accused’s statement as independent evidence of fabrication. As this court explained in R. v. Baltovich (2008), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481, at para. 99:

It is axiomatic however, that evidence capable of showing an alibi to be false does not automatically translate into evidence capable of showing that it has been fabricated. Were it otherwise, there would be no need for the stringent test that must be met before a finding of fabrication, as opposed to falsity, can be made. Having relied upon certain evidence to find that an alibi is false, the jury cannot, as a matter of course, turn around and use the same evidence to find that the alibi was fabricated. That would constitute impermissible bootstrapping and it would effectively nullify the time-honoured distinction between a false alibi, which has no evidentiary value, and a fabricated alibi, which can be used as circumstantial evidence of guilt.

[165] Examples of evidence capable of constituting independent evidence of fabrication are provided in Baltovich, in R. v. Pollock (2004), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213 (Ont. C.A.), and in O’Connor. In Baltovich, this court described the only possible item of independent evidence of fabrication on the trial record as a witness’s testimony indicating that the accused had attempted to have the witness falsify his evidence as to the time he saw the accused on the evening in question. In Pollock, the independent evidence of fabrication was provided by a witness who testified that the accused had asked her to give a misleading version of his whereabouts to the police on the night of the murder. In O’Connor, the police interviewed the accused before any charges were laid, when he was only a witness and not a suspect, and he gave a very detailed, demonstrably false account of his whereabouts. The court held that these two factors constituted the independent evidence of fabrication.

[166] If the trial judge concludes that there is sufficient independent evidence of fabrication and the alibi or exculpatory evidence is admitted, then, as explained in O’Connor at para. 34, the judge must provide a Parrington charge. A Parrington charge is, in effect, a W.(D.) charge that relates specifically to the alibi evidence: R. v. Parrington (1985), 1985 CanLII 3610 (ON CA), 20 C.C.C. (3d) 184 (S.C.C.); R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). The trial judge should direct the jurors that if they do not believe the alibi or exculpatory statement, or if they are not left with a reasonable doubt by it, they must disregard that evidence and decide the case based only on the balance of the evidence. If they are satisfied that the accused fabricated the alibi or exculpatory evidence as post-offence conduct, then they are entitled to use the finding of fabrication as a piece of evidence in determining guilt or innocence, that is, as circumstantial post-offence conduct evidence that must be weighed together with all the other evidence.

[167] The court in O’Connor recognized at para. 38 that the distinction between disbelieving an alibi and finding deliberate fabrication is an extremely difficult concept. As a result, it is critical for the trial judge to clearly explain the difference between the two types of evidence and what evidence is capable of being independent evidence of fabrication. It is also essential for the trial judge to identify the evidence in the record that could constitute the independent evidence of fabrication.

v) Application of the O’Connor principles to the appeal

[168] As in O’Connor, the trial judge failed to canvass the issue of the existence of independent evidence of fabrication at the admissibility stage. The accused’s exculpatory statement to police was therefore put before the jury by the Crown without any consideration of whether it was open to the jury to find that the statement was concocted. Although the Crown was entitled to qualify the statement as voluntary and Charter-compliant, the out-of-court statement could only be used for purposes of cross-examining the appellant, unless the trial judge was satisfied that there was sufficient independent evidence to support a finding that the statement was concocted.

[169] On this record, there is little evidence that could be considered independent evidence of concoction. Crown counsel in his closing made much of the appellant’s memory of various details of the empty apartment where the crime occurred, suggesting that a person would not remember such details if all that occurred in the apartment was a sexual encounter of the nature described by the appellant. However, the details recounted by the appellant were not proved to be inaccurate ones that could demonstrate a lie, and therefore are not the type of evidence referred to in O’Connor as being capable of providing independent evidence of fabrication.

[170] Nor can the circumstances of the interview with police be considered as any independent evidence of fabrication. Unlike in O’Connor, where the police interview occurred before the accused was even a suspect, in this case, the police interviewed the appellant following his arrest, during which he was told that his semen was found in and around the deceased. Because the appellant was interviewed not as a mere witness but as the person charged with the crime, the circumstances of the interview cannot be considered as any independent evidence of fabrication. Thus, this is not a case like R. v. Polimac, 2010 ONCA 346, where the court was satisfied that the O’Connor criteria for independent evidence of fabrication were clearly met even though the trial judge did not directly consider the issue.

[171] Had the trial judge been asked to consider the issue of independent evidence of fabrication at the admissibility stage, a possible item of such evidence may have been the Midland conversation with Crystal. It would have been necessary to assess whether that evidence could reasonably support a finding that the appellant was asking Crystal to provide him with a false story about his whereabouts and, if so, whether that request could somehow constitute independent evidence of concoction in relation to his statement to police. Because we are of the view that a new trial should be ordered, we refrain from expressing a conclusion on the independent evidence of concoction issue.

[172] The trial judge also did not consider at the admissibility stage whether the Crown could properly tender the statement, as it related to the appellant’s story about going to see Crystal at the Wesley Centre on the night of the murder, as evidence of a false alibi. The Crown’s position was that the appellant was trying to mislead police by expanding the time he was with Crystal by stating they argued “for over an hour” and through his story that he looked for Crystal inside the Wesley Centre for 20 minutes before finding her sitting outside. According to the Crown, the video surveillance tape footage showed that the appellant was only at the Wesley Centre for 50 minutes in total, and that he was lying to the police about having gone into the Wesley Centre for 20 minutes before finding Crystal outside. The Crown’s false alibi position rested on these inaccuracies in the appellant’s description of his whereabouts on the night of the murder.

[173] However, even if the appellant lied about being with Crystal for “over an hour”, or about looking inside the Wesley Centre for Crystal for 20 minutes before finding her outside, he was not giving himself a complete alibi by providing this information. He did not try to suggest to police that he was with Crystal for a time period that would have made it impossible for him to commit the murder. Indeed, on the Crown’s theory of the case, the murder may have happened after the appellant left Crystal. Moreover, the video surveillance footage relied on by the Crown could not constitute independent evidence of fabrication, but would merely be evidence tending to show the falsity of these aspects of his statement.

[174] In the charge to the jury, the trial judge did not give any instruction on what evidence, if any, the jury could consider as independent evidence that the appellant’s exculpatory statement to the police following his arrest was fabricated. Nor was the jury told that there is a difference between disbelieving an exculpatory statement of the accused, in which case, that evidence is to be ignored, versus a finding of fabrication, which can permit the statement to be used to determine guilt or innocence. Nor was a Parrington charge given with respect to the appellant’s statement.

[175] When the trial judge gave the jury her brief summary of the Crown’s position, she referred to two things: the expert evidence as well as the inconsistencies in the appellant’s story in his conversations with Crystal and with the police “as demonstrative of Mr. Hall’s attempts to distance himself from the murder.” Rather than addressing the factual shortcomings of the Crown’s false alibi allegations and without giving the jury the law on false alibi or the use of fabricated exculpatory statements of the accused, the trial judge left the position of the Crown on fabrication with the jury to use without the clear guidance specified in O’Connor.

[176] These were very serious omissions in a case where the evidence was entirely circumstantial and where the Crown relied heavily on the allegation of fabrication as part of its case to the jury. Defence counsel had objected to the trial judge’s characterization of the Midland conversation as post-offence conduct given its equivocal nature, but the trial judge’s charge did not adequately reflect this legitimate concern.

[177] The trial judge was not asked by the parties to assess the admissibility of the appellant’s exculpatory out-of-court statement to the police for the purposes the Crown sought to make of it. Her failure in this regard is thus understandable. However, having admitted the statement, it was incumbent on the trial judge to give an instruction on the use of this statement that reflected the requirements set out by this court in O’Connor. Unlike in Polimac, it cannot be said that the trial judge fairly and fully explained to the jury how the appellant’s statement to the police could support the defence’s theory of the case: see Polimac at paras. 105-106. We are thus of the view that the failure to give this instruction prejudiced the appellant’s right to a fair trial in the circumstances of this case.[^2]

5. Did the trial judge err in failing to instruct on post-offence conduct in relation to Barry Lane?

[178] At defence counsel’s request, the trial judge ruled that the defence could point to Barry Lane as an alternate suspect for the commission of the crime. Both the Crown and the defence relied on Lane’s conduct following his discovery of the victim’s body. The Crown’s position was that he was co-operative with the police, which indicated innocence, while the defence pointed to all of the lies he told about his whereabouts and his interactions with various people that night, including the victim, as well as the blood on his shoe, the fact that he took off his shirt, and other conduct that could indicate that he was the perpetrator.

[179] The appellant raises two related issues regarding the trial judge’s charge with respect to Lane. First, by not giving any instruction regarding Lane’s alleged inculpatory post-offence conduct and by only giving an instruction on the appellant’s post-offence conduct, the jury was left with an unbalanced picture of the post-offence conduct evidence that favoured the Crown’s case.

[180] Second, the trial judge failed to instruct the jury that Lane’s post-offence conduct could be used, in the context of weighing all of the evidence, in determining whether the jury had a reasonable doubt that the appellant was the killer. According to the appellant, the trial judge added to this error in her brief summary of the positions of the Crown and defence by equating the Crown’s theory that the appellant was attempting “to distance himself from the murder” with the defence theory that Lane’s post-offence conduct reflected his attempt to distance himself from the murder. The trial judge ought instead to have explained to the jury that the appellant’s conduct could be circumstantial evidence used to determine guilt beyond a reasonable doubt, whereas Lane’s conduct was circumstantial evidence that could be used to find a reasonable doubt.

[181] In response, the Crown points to the fact that the issue of Lane as the alternative suspect was squarely before the jury, that defence counsel did not request this instruction at trial, and that any such instruction would have required the judge to outline in detail the aspects of Lane’s conduct that the Crown said showed his innocence.

[182] We agree with the Crown that the trial judge did not err by not giving a post-offence conduct charge in regard to Lane’s conduct as an alternate suspect for the murder. However, we agree with the appellant that the jury was left with no legal context in which to analyze Lane’s conduct after the deceased was discovered, in contrast to the post-offence conduct instruction in relation to the appellant’s statements.

[183] What was required from the trial judge was an instruction that if the evidence of Lane’s post-offence conduct left the jury with a reasonable doubt that the appellant was the killer then they must acquit.

[184] Nor did the W.(D.) instruction by the trial judge assist in minimizing the magnitude of the error, because the W.(D.) instruction related specifically to what the trial judge referred to as the “testimony” of the appellant and not to any other evidence that was favourable to him.

[185] Therefore, other than the instructions regarding the need for proof beyond a reasonable doubt, there was no instruction that could assist the jury with the concept that if the evidence regarding whether Lane was the perpetrator left them with a reasonable doubt about the appellant’s guilt, they should acquit.

V. Conclusion

[186] This is not a case for the application of the proviso. Considering that the evidence against the appellant was wholly circumstantial, we cannot say that absent the errors in the jury charge, the verdict would inevitably have been the same.

[187] In our view, based on the trial judge’s errors in her articulation of the defence position and in her treatment of the post-offence conduct evidence of both the appellant and Lane, we would allow the appeal, set aside the verdict and order a new trial.

Signature: “K. Feldman J.A.”

“Janet Simmons J.A.”

“I agree Gloria Epstein J.A.”

RELEASED: “KF” October 29, 2010

[^1]: In the pre-charge submissions, defence counsel did refer to the issue of deliberate fabrication and the need for a special charge, but his submission was in relation to the Midland conversation, not his statement to the police following his arrest.

[^2]: The issue of the treatment of a concocted alibi and a concocted exculpatory statement and the need for an O’Connor charge was not raised directly by the appellant on the appeal, but was thoroughly canvassed with Crown counsel at the hearing of the appeal.