Her Majesty the Queen v. Bradey
[Indexed as: R. v. Bradey]
Ontario Reports
Court of Appeal for Ontario,
Weiler, Watt and G.J. Epstein JJ.A.
November 3, 2015
127 O.R. (3d) 721 | 2015 ONCA 738
Case Summary
Criminal law — Evidence — Production of third party records — Accused and B involved in circumstances leading to victim's death — B pleading guilty to criminal negligence causing death and testifying as Crown witness at accused's murder trial — B stating at trial that she had told her prison psychologist entire truth about victim's death — Accused applying unsuccessfully for production of B's psychological records — Trial judge erring in ruling that records did not meet "likely relevance" threshold — Trial judge improperly considering factors which were only relevant at second stage of O'Connor/McNeil analysis — Appellate court reviewing records — Error having no impact on accused's conviction as production would not have been ordered had trial judge reached second stage of analysis.
Criminal law — Trial — Charge to jury — Fabricated evidence — Accused charged with murder — Crown leading evidence of pre-arrest statements made by accused to his insurer and police about cause of fatal house fire — Trial judge adequately instructing jury on how to approach question of whether statements were fabricated.
Criminal law — Trial — Charge to jury — "Vetrovec" warning — Accused charged with murder — S pleading guilty to second degree murder and B pleading guilty to criminal negligence causing death arising out of victim's death — S and B testifying as Crown witnesses at accused's trial — Trial judge instructing jury that it would be dangerous to act on unconfirmed evidence of S and B — Vetrovec caution not diluted by trial judge's mistaken instruction that there is presumption that witnesses will testify — Appeal from conviction for first degree murder dismissed.
The accused was convicted of first degree murder, arson and rendering an indignity to the victim's body. It was the position of the Crown at trial that the accused and S killed the victim by severely burning her with a blowtorch while they unlawfully confined her in the basement of their residence, then left her without medical treatment and burned down the house in order to conceal the crime. Before the accused's trial, S pleaded guilty to second degree murder, and another occupant of the residence, B, pleaded guilty to criminal negligence causing death. S and B testified as Crown witnesses at the accused's trial. During her examination-in-chief, B was asked whether she had ever told anybody the whole truth about the events leading to the victim's death before she gave evidence before the jury. She replied that she had told her psychologist the whole truth. The defence then made an unsuccessful mid-trial application for production of B's psychological records in the hands of the penitentiary where B was serving her sentence. The trial judge found that the records did not meet the "likely relevance" threshold. The accused appealed, arguing that the trial judge erred in his ruling on the third party records application and in his charge to the jury regarding the Vetrovec warning regarding S and B and in the instructions regarding fabricated evidence. [page722]
Held, the appeal should be dismissed.
The trial judge erred in finding that the third party records did not meet the "likely relevance" threshold. In reaching that conclusion, he improperly considered factors which are relevant only at the second stage of the O'Connor/McNeil analysis, and appeared to confuse B's expectation of privacy in the records with the question of likely relevance. Moreover, he treated as dispositive of the issue of likely relevance B's assertion that she had said the same thing to her psychologist as she had said at trial, and found that the records would therefore not be useful in impeaching B's credibility. However, the error had no impact on the accused's conviction, as a review of the records on appeal established that the application would have been dismissed had the trial judge proceeded to the second stage of the O'Connor/McNeil analysis. Any reference in the records to what happened was brief, generalized and not inconsistent with B's trial testimony. The production of the records would not have furthered the accused's ability to make full answer and defence. Moreover, it was a relevant consideration at the second stage that the records originated in a therapeutic context. Such records have been held to be inherently unreliable, they pertained to a collateral issue and any alleged statement they included would have been inadmissible hearsay.
The trial judge gave the jury an adequate Vetrovec caution with respect to the evidence of S and B, instructing them that it would be dangerous to act on their unconfirmed evidence. The trial judge's instruction that witnesses are presumed to be truthful but when considered as a whole the jury would not have been prejudiced by this error. Nothing in the substance of the Vetrovec instruction or the other alleged errors diluted the force of the instruction that the jury should be cautious about the evidence of S and B. The caution provided contained the characteristics outlined in Khela, making it generally adequate. The jurors could not have failed to appreciate the need for careful scrutiny of their evidence before placing reliance on it.
The trial judge did not mislead the jury in his instruction about how to approach the question of whether pre-arrest statements made by the accused to his insurer and the police about the cause of the house fire were fabricated. He listed six appropriate factors emerging from the circumstances in which the allegedly fabricated statements were made as a basis to find fabrication. It would be preferable to avoid the use of the term "independent" when listing conditions that pertain to the circumstances surrounding how the disbelieved and allegedly fabricated statement was made. The term "independent evidence" should be reserved for cases in which what is relied upon as proof of fabrication is evidence extrinsic to the circumstances of the making of the statement. However, the trial judge's use of the word "independent" to describe those factors would not have confused the jury or compromised unfairly an otherwise correct instruction.
R. v. McNeil, [2009] 1 S.C.R. 66, [2009] S.C.J. No. 3, 2009 SCC 3, 246 O.A.C. 154, 238 C.C.C. (3d) 353, EYB 2009-153175, J.E. 2009-174, 301 D.L.R. (4th) 1, 383 N.R. 1, 62 C.R. (6th) 1; R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1, 29 W.C.B. (2d) 152, apld
Other cases referred to
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Statutes referred to
Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 10(1), 11
Criminal Code, R.S.C. 1985, c. C-46, s. 683(1)(a) [page724]
APPEAL by the accused from the conviction entered on July 31, 2009 by Stong J. of the Superior Court of Justice, sitting with a jury.
John Norris and Meara Conway, for appellant.
Roger A. Pinnock and Sean Doyle, for respondent.
The judgment of the court was delivered by
[1] WATT J.A.: — Paul Bradey, Susanna Balogh and Matthew Sitte had a problem. In the basement of the house they shared near Midland. For them, Katlin Cousineau was the problem. She was dead on the basement floor. With burns all over her body. From a blowtorch.
[2] Bradey, Balogh and Sitte were each in their own way responsible for Katlin Cousineau's death. None of them wanted to take the blame for what they had done. So they devised a plan. And the purpose of the plan was to destroy any evidence about how Katlin Cousineau died and who was involved in her death.
[3] The plan involved a fire. A blaze that would completely destroy the house and any evidence about how Katlin Cousineau died. And maybe Bradey, who owned the house, would be able to collect the proceeds of the fire insurance policy he had placed on the house.
[4] The fire had to look accidental. And so it was that a yarn was to be spun about a cooking accident and a "threesome" involving Sitte and two girls. The story would serve two purposes. It would characterize the fire as accidental in origin. And it would provide an explanation for the absence of Bradey and Balogh from the house when the fire started.
[5] The house burned down. But the story about the origins of the fire was soon extinguished. Bradey, Balogh and Sitte got arrested. Each was charged with offences arising out of the fire and unlawful killing of Katlin Cousineau.
[6] Matthew Sitte pleaded guilty to second degree murder.
[7] Susanna Balogh pleaded guilty to criminal negligence causing death.
[8] Paul Bradey had a trial. Susanna Balogh and Matthew Sitte testified for the Crown. The jury found Bradey guilty of first degree murder, arson and rendering an indignity to the body of Katlin Cousineau.
[9] Paul Bradey appeals. He says the trial judge made mistakes in failing to order production of some psychological records [page725] about Susanna Balogh and in his instructions to the jury on two issues involving the assessment of evidence given at trial.
[10] These reasons explain why I would dismiss the appeal.
The Background Facts
The principals and their relationship
[11] Susanna Balogh and Katlin Cousineau were neighbours in Waubaushene. Katlin Cousineau lived with her husband, Philip St. Amand. Cousineau was 23 years old but developmentally delayed. Susanna Balogh lived with her children, and Michael John with whom she was in a relationship.
[12] Katlin Cousineau and Philip St. Amand separated. Cousineau moved into the Balogh/John home. Susanna Balogh began an affair with Paul Bradey in the summer of 2004. When Michael John discovered the affair, he ended his relationship with Balogh.
[13] Susanna Balogh moved in with Paul Bradey at his house in Waubaushene. Katlin Cousineau joined them.
[14] In October 2005, Paul Bradey bought a house at [number omitted] County Road 93 near Midland. Shortly before Bradey, Balogh, Cousineau and the other occupants of the Waubaushene home moved to Midland, Balogh's sister and a friend, Matthew Sitte, came to Waubaushene for a visit and stayed to help with the move to Midland. Sitte spent his days drinking and getting high with Susanna Balogh. Balogh's sister left. Sitte stayed.
The house on County Road 93
[15] Among the occupants of the new house on County Road 93, only Paul Bradey had a job. Susanna Balogh was on public assistance. Matthew Sitte lived on an inheritance. Katlin Cousineau received disability allowance. The house, home to a large number of pets, was described as "a pigsty". Balogh "home schooled" her children. They played videogames. Susanna Balogh and Matthew Sitte remained at home during the day when Paul Bradey was at work. They "had fun" and played games.
[16] Katlin Cousineau lived in the basement of the Midland house. She slept on the concrete floor with a sheet, comforter and pillow. She was not allowed to use the toilet, only a bucket that was left in the basement.
The treatment of Katlin Cousineau
[17] Paul Bradey and Matthew Sitte abused Katlin Cousineau. To some extent, Susanna Balogh also participated in the abuse. Katlin Cousineau was kicked, punched and struck with [page726] a two-by-four. Sometimes, she was handcuffed to the rafters to facilitate a beating. On at least one occasion, a broomstick was inserted in Cousineau's anus.
[18] Katlin Cousineau's presence in the house was a source of concern for Paul Bradey. From time to time, he suggested that Katlin Cousineau be thrown in a bog or dropped off at a mental hospital. When Cousineau got out of hand, Bradey would crush Balogh's medication -- Epival and lorazepam -- and put it in Cousineau's food without her knowledge. The medication would cause Cousineau to fall asleep.
The death of Katlin Cousineau and the fire on County Road 93
[19] The events that culminated in the death of Katlin Cousineau and the fire that destroyed the Bradey home spanned a four-day period in November 2005.
The "first" blowtorch incident
[20] Sitte testified that on Thursday, November 10, 2005, Balogh's children complained about Katlin Cousineau's smell. At Balogh's direction, Sitte gave Cousineau a shower. Sitte turned the water to hot. Cousineau reacted and broke the shower rod. According to Sitte, Paul Bradey continued this treatment, turning the water to hot, then to cold. Bradey then got a blowtorch and threw "fireballs" onto Cousineau's body. After turning the propane off, Bradey burned Cousineau's vagina with the nozzle of the blowtorch. Bradey then turned the propane back on and ran the flame over Cousineau's arms, chest, stomach and legs. Sitte recalled that Balogh turned the water on the areas of Cousineau's body on which Bradey had put the "fireballs".
[21] Balogh testified that Bradey obtained visitation rights with his daughter at his parents' cottage on November 10, 2005. Cellphone records showed contact between the cellphones of Bradey and Sitte during the afternoon of that day. Sitte maintained his position that the blowtorching (first) occurred on that day. Balogh recalled no such incident.
The "second" blowtorch incident
[22] Sitte testified that when Paul Bradey returned home on November 11, 2005, he smelled the odour of marijuana wafting upstairs from the basement. He blamed the odour on Katlin Cousineau. Bradey, with Sitte's help, blowtorched Cousineau on the shoulders, breasts, stomach, arms, legs and back while Sitte restrained her.
[23] After the blowtorching ended, Bradey and Sitte left Katlin Cousineau in the basement without medical attention. Sitte [page727] noticed that Cousineau's body was severely burned; her breathing, shallow.
[24] Despite having testified earlier that these events had occurred on the following day (November 12, 2005), Sitte insisted that Bradey blowtorched Cousineau on November 11, 2005. He admitted that he had lied at the preliminary inquiry when he said Balogh had also participated in the blowtorching.
[25] Balogh said the blowtorching did not occur until the evening of Saturday, November 12, 2005. She recalled having heard screaming from the basement. When she investigated, she saw Paul Bradey burning Cousineau with the blowtorch. Matthew Sitte joined the abuse, making "fireballs" by throwing rubbing alcohol on Cousineau's body. After going upstairs to see her children, Balogh returned to check on Cousineau. Cousineau was sitting on the floor "humming", the burns on her breasts, legs, arms, face and back visible.
The death of Katlin Cousineau
[26] Matthew Sitte said he went to the basement to check on Cousineau on November 12, 2005. He found her burned, but alive.
[27] Both Sitte and Balogh testified that they went to a pharmacy to buy supplies to treat Cousineau's burns. Sitte testified that this happened on November 12, 2005. Balogh recalled that they did not go to the pharmacy until the following day (November 13, 2005). They purchased and applied topical treatments. Cousineau hummed and was unresponsive. She appeared to be in pain. Balogh and Sitte left Cousineau in the basement.
[28] At around 8:00 a.m. on Sunday, November 13, 2005, Balogh and Sitte checked on Cousineau's condition. Balogh testified that she saw that Cousineau was alive. She spoke to Bradey on the telephone and told him Cousineau needed help. Bradey told Balogh to leave Cousineau alone and that he would return from his parents' cottage shortly. When he returned, Bradey went to the basement. He told Balogh that Cousineau would be "fine". Sitte recalled that Cousineau was dead when he checked on her in the morning.
The plan to set a fire
[29] When Bradey, Balogh and Sitte discovered that Katlin Cousineau was dead, they discussed what they should do. Dump her body in a swamp? Cut up her body and dump her body parts in different places?
[30] Paul Bradey suggested that they set a fire and burn the house down. Before learning of Cousineau's death, Bradey had [page728] explained that the fire would have to be set before Cousineau died so that she would have soot in her lungs. Susanna Balogh and Matthew Sitte agreed with Bradey's proposal. Balogh showed Bradey and Sitte how a few potato chips on the stove could start a grease fire.
[31] While Paul Bradey was away from the house during the day, Matthew Sitte concocted a story to explain how the fire started and why Balogh and Bradey were not home at the time. Sitte would say that he was planning to have a "threesome" with two women that night. To afford him privacy for his venture, Bradey, Balogh and the children would spend the night at a motel. Sitte would tell investigators that he had left a pot of pasta cooking on the stove unattended. A fire had started. He had been unable to reach Cousineau either because of the smoke or because of the locked basement door.
Preparations for the fire
[32] Paul Bradey returned home later on November 13, 2005. He and the others began preparations to set the house on fire. They bought gasoline and splashed it and some paint thinners around in the basement, including on and around Cousineau's prone body. Matthew Sitte either agreed or proposed to set the fire. He originally claimed he agreed to do so because he did not want Balogh to lose custody of her children. He later added that he also did not want Paul Bradey to lose his recently granted access to his daughter. Paul Bradey told Sitte to wait 20 minutes before lighting the fire in the basement.
The motel
[33] Bradey, Balogh and her children checked into a nearby motel at 11:51 p.m. on November 13, 2005. Bradey and Balogh then left the children at the motel and went over to a nearby Tim Hortons to await Sitte's call about the fire. Some police officers were also in the coffee shop when Bradey and Balogh entered.
The fire
[34] Matthew Sitte opened the doors of the house and rushed the dogs outside. He started a fire in the kitchen by dumping bags of potato chips on an element and turning on the burner. In the basement, he lit a matchbook and tossed it into some gasoline near Katlin Cousineau's body.
[35] Sitte waited until the house was "seriously engulfed" by the fire before he called 911. He called Susanna Balogh at 12:02 a.m. to tell her that the fire had been set. His call to 911 was received at 12:03 a.m. [page729]
The emergency response
[36] Fire and police services, including the officers who had been at Tim Hortons, responded immediately to the 911 call. When they arrived two minutes later, the house was fully engulfed. A rescue attempt was impossible.
[37] Matthew Sitte told different stories to different police officers who had responded to the 911 call. To one, he said that he had fallen asleep and was awakened by the fire. To another, he maintained the tale about the "threesome" and the cooking accident. In the 911 call, Sitte said that someone could still be inside the house. He told the officer at the fire scene that he had last seen Katlin Cousineau earlier that day.
The arrival of Bradey and Balogh
[38] Paul Bradey counselled Susanna Balogh to feign upset as he also would when they returned to their home. The couple arrived between 12:30 and 12:40 a.m. Bradey hurried out of their vehicle, raced towards the house and ignored commands to stay back.
[39] Balogh and Sitte told one of the investigators at the fire scene that Katlin Cousineau slept in the basement of the home. Balogh explained that she, Bradey and the children were staying at a motel to afford Sitte some privacy to entertain two girls. Sitte confirmed the plan and explained that the fire started when a pot he was using to prepare pasta boiled over and oil in the water spilled onto the stove.
The insurance claim
[40] About four hours after the fire was reported, Paul Bradey called his home insurer to commence a claim under his fire insurance policy. He told the insurer's representative that Katlin St. Amand died in the fire. About four months later, Bradey told another representative of the insurer that he did not learn of the deceased's death until four or five days after the fire.
[41] When Paul Bradey first called his insurer to start his claim for proceeds under his fire insurance policy, Katlin Cousineau's body had not been found. It was found later, nude, in the basement. [page730]
The cause of death
[42] The pathologist who conducted the post mortem on the body of the deceased could not determine the precise cause of death. It was clear, however, that Cousineau had died before the fire started. Her lungs revealed no signs of smoke inhalation. Her blood disclosed low levels of carbon monoxide and no signs of cyanide.
[43] The pathologist did find "leopard skin spots" on the mucosal lining of Cousineau's stomach. These spots suggested hypothermia, stress and significant physiological shock had occurred in the days or hours prior to death. The body displayed no signs of soft tissue injuries.
The cause of the fire
[44] Gasoline was used to start the fire. Traces of it were found in the basement and on the surface of the rear deck.
The pre-arrest statements of Paul Bradey
[45] The Crown introduced evidence of several statements Paul Bradey made to police and to an insurance adjuster after the fire, but before his arrest.
[46] In general terms, Paul Bradey maintained that he, Balogh and the children had gone to the motel because Sitte wanted to have a "threesome" and he (Bradey) did not want the children to see this ménage à trois. Bradey wanted to be nice to Sitte, who had helped with the move from Waubaushene. Balogh's children were also excited about staying in a motel. Bradey said he first learned about the fire and how it had started when Sitte phoned to report it.
[47] The Crown relied on inconsistencies and falsehoods in Bradey's statements. Inconsistencies about his contact with Katlin Cousineau on November 13, 2005. Falsehoods about the furnishings in the basement where Cousineau lived. And statements that made little sense in the circumstances. Like the presence of gasoline and paint thinners in the basement when the fire was alleged to have started with a cooking accident upstairs in the kitchen. And his description of his treatment of Cousineau before he was considered a suspect in her death.
The positions of the parties at trial
[48] The Crown contended that Bradey and Sitte killed the deceased by severely burning her with a blowtorch while they unlawfully confined her in the basement, then leaving her without medical treatment. When they discovered that Cousineau [page731] had died, they fabricated a story about the origins of the fire Sitte deliberately set after both Bradey and Sitte had spread gasoline as an accelerant. The story assigned an accidental cause for the fire -- a cooking accident -- and also provided an explanation for the absence of Bradey, Balogh and the children from the home -- the ménage à trois involving Sitte. The purpose of the fire was to destroy the evidence of any involvement of Bradey, Sitte and Balogh in the unlawful death of Cousineau.
[49] At trial, Paul Bradey denied any role in the unlawful killing of Katlin Cousineau. It was his position that Matthew Sitte and Susanna Balogh killed Cousineau on November 13, 2005 while he, Bradey, was visiting his daughter at his parents' cottage. He relied on his statements to representatives of his insurer and to the police in support of his position. Paul Bradey did not testify at trial.
The Grounds of Appeal
[50] In this court, Bradey advances four grounds of appeal. The first claims a mistake in rejection of an application for production of third party records. The remaining three allege errors in the substance and manner of the trial judge's charge to the jury.
[51] I would paraphrase the grounds of appeal as alleged errors
(i) in failing to find psychological records relating to Susanna Balogh in the custody of the Grand River Institution "likely relevant" on an application for their production at trial;
(ii) in failing to properly instruct the jury in connection with the evidence of Susanna Balogh and Matthew Sitte whose evidence was subject to a Vetrovec warning at trial;
(iii) in failing to properly instruct the jury about an allegedly fabricated statement of Bradey introduced at trial; and
(iv) in failing to provide the jury with properly balanced final instructions.
Ground #1: The third party records application
[52] This ground of appeal questions the correctness of the trial judge's decision to reject a mid-trial application for production of psychological records relating to a witness for the Crown -- Susanna Balogh. The records were in the possession of the Correctional Service of Canada at Grand Valley Institution, a federal penitentiary for women where Balogh was serving her [page732] sentence on her conviction of criminal negligence causing death arising out of the unlawful killing of Katlin Cousineau.
[53] Some additional background is necessary to appreciate the circumstances in which production was sought and the application dismissed.
The first application
[54] During sentencing proceedings following Susanna Balogh's plea of guilty to and conviction of criminal negligence causing death, a psychological report about her was filed as an exhibit. Trial counsel for Bradey sought production of this material in advance of trial. Balogh consented to the application. The Crown agreed. The records were produced and available for the purposes of cross-examination.
The application at trial
[55] During examination-in-chief by the trial Crown, Susanna Balogh was asked whether she had ever told anybody the whole truth about the events leading to Katlin Cousineau's death before she (Balogh) gave evidence before the jury. Balogh responded: "No, except for my psychologist." Further questioning established that the psychologist was at Grand Valley Institution and that the relationship was an ongoing one. Balogh explained that she had received "a lot of help" during her imprisonment at Grand Valley.
[56] Trial counsel sought production of the psychological materials at Grand Valley so that he could use them in his just-begun cross-examination of Balogh. Balogh resisted the application as did Crown counsel. The trial judge appointed counsel to represent Balogh's interest.
[57] Counsel and the trial judge agreed that the application could be argued without a formal written application as would usually be required. Counsel for Bradey said he sought statements Balogh had made
(i) about the offence;
(ii) about her relationship with Paul Bradey; and
(iii) about her plea of guilty to the lesser offence of criminal negligence causing death.
Counsel proposed to use the statements to challenge Balogh's claim that she had told the jury the whole truth as she had done with her psychologist at Grand Valley. [page733]
[58] On the application, Crown counsel called Dr. Janice Cutler, the chief psychologist at Grand Valley. Dr. Cutler was not the psychologist with whom Balogh was dealing. She was, however, familiar with Balogh's file and had read most of it in preparation for her testimony.
[59] Dr. Cutler explained that a psychologist's notes are to include the date of an interview, who was interviewed and a general account of what occurred during the interview. The amount of detail varies but the clinician is under no obligation to note exactly what was said or to have the patient verify the accuracy of the notes. Dr. Cutler said that she, and perhaps others, might take notes of any details of the offence that the patient disclosed.
[60] Dr. Cutler expressed some concerns about production of the notes. Release could damage the therapeutic relationship and impede the inmate's rehabilitation. Some of the notes, for example, those reflecting psychological history, might require interpretation by a psychologist. Third party privacy interests might be implicated.
The ruling of the trial judge
[61] The trial judge dismissed the application on the ground that Bradey had failed to establish the "likely relevance" of the records to an issue at trial, including the testimonial competence or credibility of Susanna Balogh.
[62] The trial judge relied on several factors in support of his conclusion that no case of likely relevance had been established:
(i) the mere fact that a witness has spoken to a counsellor about matters touching the issues at trial does not make a record of those observations "likely relevant to a fact in issue or the witness' credibility";
(ii) the records only pass the likely relevance threshold if there is some basis to conclude that the statements have the potential to provide an accused with some added information not already available to him or to have some impeachment potential;
(iii) confidentiality is paramount in the relationship and a high expectation of privacy attaches to the records with the result that unsupported, at large assertions of likely relevance fail to meet the threshold standard for review; and
(iv) the witness' statement about the consistency between the account to her psychologist and that provided to the jury demonstrates no inconsistency. [page734]
The arguments on appeal
The "likely relevance" test
[63] Bradey says that the trial judge erred in failing to hold that the records sought were "likely relevant" to an issue at trial. The "likely relevant" standard is not onerous. It is satisfied where an applicant demonstrates that there is a reasonable possibility that the records contain information logically probative of an issue at trial, including the credibility of a witness. The information sought here would meet the Stinchcombe standard for disclosure if it (the information) were in the possession of the Crown.
[64] Bradey submits that the trial judge made four discrete errors in deciding that the materials sought did not satisfy the likely relevance threshold.
[65] First, the trial judge mischaracterized the significance of the evidence of Susanna Balogh that she told her psychologist "the whole truth". This evidence may not have been elicited by the Crown as a prior consistent statement to bolster her credibility, but the jury may have seen or taken it that way. The implication was that counselling had helped her to arrive at the truth, a subject that the defence should have been entitled to explore.
[66] Second, Bradey says, the trial judge failed to appreciate the impeachment value of the psychological records. Instead of considering Balogh's claim of consistency as dispositive, the trial judge should have considered that claim in the context of the evidence as a whole. After all, Balogh was a self-admitted and confirmed liar.
[67] Third, Bradey contends that the trial judge overemphasized Balogh's privacy interest in the psychological records. Balogh's privacy interest was significantly reduced. She was a perpetrator of an offence, not a victim or other stranger to the litigation. She had previously signed a consent permitting the Crown to access all her medical records. The failure of the Crown to do so did not diminish the already reduced expectation of privacy. And in the end, Balogh was in jail, a place of reduced expectation of privacy not only for inmates, but also for the records about them.
[68] Fourth, the trial judge failed to balance Balogh's privacy interest against the appellant's right to make full answer and defence.
[69] The Crown resists any suggestion of error in the trial judge's analysis. [page735]
[70] The Crown says that the mere fact that Balogh made statements to a psychologist about an offence does not meet the standard required to establish likely relevance. Such statements only pass the likely relevance threshold if there is some basis for concluding that the statements have some potential to provide the appellant with some additional information not already available to the defence or have some impeachment value. That case has not been made out here.
[71] In the end, the Crown submits, the trial judge recited and applied the proper principles. He did not, as Bradey suggests, misapprehend the evidence. His decision is entitled to deference. And what is more, he got it right.
Production of the records
[72] In accordance with the subpoena duces tecum to which she responded, Dr. Cutler had brought with her to the hearing of the O'Connor application at trial the Grand Valley records. Unfortunately, however, the sealed records were not then made a lettered exhibit at the hearing, as they should have been, and thus were not part of the record forwarded to this court on the hearing of the appeal. They remained in the court file.
[73] Neither party to the appeal applied to the panel to invoke s. 683(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 to order production of the records as "any writing . . . or other thing connected with the proceedings". As a result, the senior legal officer of this court wrote to counsel, seeking their written submissions in answer to this question:
If the court is of the view that the trial judge erred in his ruling on the likely relevance of the Grand Valley Institution's records for Ms. Balogh, should we invoke our jurisdiction to order their production from the court file under s. 683(1)(a) of the Criminal Code, consider the records and decide whether some, none or all should have been disclosed to defence counsel at trial?
[74] Counsel on the appeal agreed that, if we were of the view the trial judge erred in this regard, we should obtain the Grand Valley records, review them and conduct the second stage of the O'Connor/McNeil analysis to determine what, if any, portion of those records should have been produced to trial counsel for the appellant.
The governing principles
[75] The principles that control the determination of this ground of appeal are those elucidated in R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98. And that is so, the parties agree, because the records sought are in the possession and control of a third party, a stranger to the litigation, Grand Valley [page736] Institution. They relate to an inmate, a person convicted of criminal negligence causing death as a result of her involvement in the unlawful death of another. The inmate was a witness for the Crown in the prosecution of another for his role in the same unlawful killing.
[76] Some basic principles that emerge from O'Connor and its offspring are critical to a correct disposition of this ground of appeal.
[77] First, the O'Connor principles apply but are not confined to medical or therapeutic records in the custody or control of a third party. The principles extend not only to third party records to which a reasonable expectation of privacy attaches, but also to those to which no such expectation adheres: O'Connor, at para. 99; R. v. McNeil, [2009] 1 S.C.R. 66, [2009] S.C.J. No. 3, 2009 SCC 3, at para. 11. Said otherwise, the common law regime put in place by O'Connor provides a general mechanism for production of any record beyond the possession or control of the prosecuting Crown.
[78] The operation of this regime is not premised on the existence of a reasonable expectation of privacy: McNeil, at para. 11. It would seem logically to follow that the reduced expectation of privacy in a penitentiary does not render the O'Connor regime inapplicable to prison records: R. v. Major, 2004 12791 (ON CA), [2004] O.J. No. 2651, 186 C.C.C. (3d) 513 (C.A.), at para. 35.
[79] Second, under O'Connor, production does not issue as of right upon application. After all, these records are in the hands of a third party, a stranger to the litigation. They are not part of a "case to meet" or in the possession or control of the prosecutorial authority. So the applicant bears an onus of establishing a basis for production. An applicant must establish a basis that could enable the presiding judge to conclude that there is actually further material in existence that may be useful to the applicant in making full answer and defence, in the sense that the material is logically probative: O'Connor, at para. 138.
[80] Third, since the records have been created by a third party for a purpose unrelated to the investigation or prosecution of the offence, we cannot assume that the records are likely to be relevant. And so we impose a burden on the applicant to demonstrate the likely relevance of what is sought: O'Connor, at para. 141.
[81] Fourth, the burden on an applicant to demonstrate likely relevance is a significant but not onerous one: O'Connor, at para. 24; McNeil, at para. 29. The burden is significant because it must play a meaningful role in screening applications to weed out speculative, fanciful, disruptive, unmeritorious and [page737] time-consuming requests for production: McNeil, at para. 29; O'Connor, at para. 24. For example, an unsupported assertion that prior inconsistent statements might be unearthed or that psychological counselling implies unreliability is inadequate to establish likely relevance: O'Connor, at paras. 142-43.
[82] Fifth, an applicant must satisfy the court that information contained in the records is likely relevant to an issue in the proceedings or to the competence of a witness to testify: O'Connor, at para. 138. An issue in the proceedings includes substantive issues, the credibility of the witness and the reliability of other evidence in the case: O'Connor, at para. 22; McNeil, at para. 33; and R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321, [2000] O.J. No. 2184 (C.A.), at paras. 53, 64.
[83] Further, the mere fact that the witness said something about relevant events or about something that could affect her credibility is not sufficient to pass the likely relevance standard: Batte, at paras. 70-71. Where confidential records are shown to contain statements made by a witness to a therapist on issues potentially relevant to the witness' credibility, the records will pass the likely relevance threshold only if there is some sound basis for concluding that the statements have some potential to provide the accused with some additional information not already available to the accused, or have some impeachment value: Batte, at para. 72.
[84] The likely relevance stage cannot require a demonstration of the precise manner in which the documents could be used at trial. The reason is simple: at this stage, the accused has not seen the documents: McNeil, at para. 33.
[85] Sixth, if the records are found to be likely relevant, the inquiry shifts to a consideration of whether production should be ordered. This requires a case-specific consideration and balancing of myriad factors.
[86] After review of the records, production should only be ordered in respect of those records, or parts of records, that have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice or by the harm to the privacy rights of the witness or to any claim of privilege: O'Connor, at para. 155.
[87] Relevant factors include, but are not limited to,
(i) the extent to which the record is necessary for the accused to make full answer and defence;
(ii) the probative value of the record; [page738]
(iii) the nature and extent of the reasonable expectation of privacy vested in the record;
(iv) potential prejudice to the dignity, privacy or security of the person of the individual who is the subject of the record; and
(v) the effect on the integrity of the trial process of producing or failing to produce the record: O'Connor, at paras. 31, 156; McNeil, at para. 35.
The principles applied
[88] As I will explain, I agree with the appellant that the trial judge erred in holding that the appellant had failed to meet the "likely relevance" threshold in connection with the Grand Valley records. That said, a review of the records satisfies me that their production would not have been ordered had the trial judge reached the second stage of the O'Connor/McNeil analysis.
The "likely relevance" test
[89] At the outset, it is essential to keep at the forefront what was sought, in respect of whom, and for what purpose.
[90] The records sought were parts of a psychological file created for an inmate at Grand Valley Institution, a federal penitentiary for female offenders. What was sought were those parts of the file in which the inmate, Susanna Balogh, described to a staff psychologist the circumstances of the unlawful killing of Katlin Cousineau, Balogh's relationship with the appellant and the circumstances surrounding Balogh's plea of guilty to criminal negligence causing death. The relationship between Balogh and the psychologist was a therapeutic, not an investigative, one.
[91] There was no direct evidence about the contents of the notes, in particular, the inclusion or completeness of any statements regarding the subjects about which the information was sought. The only evidence was that the practice of noting statements varies from one clinician to another. About the inclusion of statements. And about the completeness of them. Psychologists are under no obligation to record statements, much less to record them accurately or completely. The inmate is not shown the notes, and thus does not verify their accuracy.
[92] No one testified about any institutional use of the notes. In view of the setting, however, it is a reasonable inference that the notes could be used to inform decisions about classification, programming and parole. Doubtless, the parties considered the relationship a confidential one of a therapeutic nature. [page739]
[93] The witness whose records were sought is one who was particeps criminis in the unlawful killing of Katlin Cousineau. She was not a victim of a crime nor a stranger who happened by when an offence was underway. She was one of two former co-accused who testified for the Crown against the appellant.
[94] At trial, the testimony of Susanna Balogh was the subject of a Vetrovec caution. She had a history of drug abuse. She acknowledged that in the past she and the truth were not good friends. She lied to investigators about the origins of the fire and the reason she, Bradey and the children went to the motel. She had given several statements that were inconsistent with each other and with what she said at trial. She denied the suggestion that her evidence at trial was the first time she had told the truth. She testified at trial that she had told the same thing to her psychologist at Grand Valley Institution.
[95] Counsel for the appellant at trial vigorously challenged the credibility of Susanna Balogh and the reliability of her evidence. He sought the psychological records to put the lie to her claim that her testimony at trial was not the first time she had told the truth about relevant events. Without the Grand Valley records, counsel argued, he could not put the lie to her claim.
[96] In my respectful view, the reasons of the trial judge rejecting the application for production on the ground that the applicant failed to satisfy the "likely relevance" test are marred by several flaws.
[97] First, the trial judge appears to have treated as dispositive of the issue of likely relevance the witness' own assertion that what she told the psychologist and what she said at trial were the same thing. Put differently, according to the witness, the accounts were consistent. On this basis, the trial judge concluded that the purpose of seeking production -- to obtain material for impeachment -- could not be achieved.
[98] The witness' characterization of the statements to the psychologist as congruent with her trial evidence was not dispositive of the application. If it were otherwise, all applications on this basis would fail on the ipse dixit of the witness whose credibility is impugned. The inquiry into likely relevance cannot be decided on the witness' say-so.
[99] Second, under the regime applicable here, the confidential nature of the relationship during which the sought-after records were created affords no basis upon which to deny likely relevance. The person whose records are sought will often have a reasonable expectation of privacy in the records. The O'Connor/McNeil procedure provides a general mechanism for ordering production of any record beyond the control of the [page740] prosecuting Crown. It applies where the relationship is a confidential one, but equally where it is not. It applies whether the record gives rise to a reasonable expectation of privacy or fails to do so. The relevance of these issues seems more suited to the second stage of the O'Connor/McNeil analysis, not to the first or "likely relevance" threshold.
[100] Third, the trial judge appears to have placed undue emphasis on the lack of reliability of the records based on the absence of any obligation to record statements accurately or completely, or have them verified by their author. Although relevant, these factors are not dispositive of the "likely relevance" stage of the O'Connor/McNeil analysis. The applicant proposed to use the statements to test the credibility of the witness and the reliability of her testimony, not to introduce them for substantive purposes. Confirmation that they were made and differed from the witness' evidence at trial could also be used to demonstrate the falsity of her claim that she told the truth to both the psychologist and the court.
[101] Fourth, the trial judge appears to have intermingled or confused the concepts of an expectation of privacy and likely relevance. A record to which a high expectation of privacy attaches may contain information that satisfies the likely relevance threshold. Likely or probable relevance refers to a relationship, based on logic and common sense, between the information sought and an issue in the proceedings. A reasonable expectation of privacy refers to an expectation that the record fosters.
[102] Finally, the witness acknowledged that she spoke to her psychologist at Grand Valley about the relevant events. This would seem to provide some basis for concluding that the records might contain some notes of what was said.
[103] In the result, I am satisfied that the records sought satisfied the likely relevance test and that the trial judge erred in holding otherwise.
Production of the records
[104] Based on the above conclusion, and counsels' agreement that we should receive the documents in question, we have reviewed the records.
[105] In general terms, the records consist of clinical progress notes created by psychologists at Grand Valley. They describe various interactions between Balogh and a psychologist at the institution in what is plainly a therapeutic relationship. Included is an informed consent for individualized psychotherapy or treatment that characterizes the relationship and describes [page741] it as confidential but includes certain exceptions, among them production under a subpoena.
[106] The notes contain summaries of the interaction between Balogh and her psychologist about Balogh's experiences in Grand Valley, including her involvement with other inmates and her functioning within institutional rules. The notes contain no information about the circumstances of her guilty plea or relationship with the appellant. Any reference to what happened is brief, generalized and not inconsistent with her trial testimony.
[107] The principal purpose for which the records were sought was to impeach Balogh's credibility and the reliability of her evidence on the basis of statements inconsistent with her trial testimony. At trial, she was cross-examined for several days. A prominent feature of the cross-examination was her impeachment by statements made elsewhere -- to investigators and at the preliminary inquiry -- relative to, but said to be inconsistent with, her trial testimony. These statements were accurately recorded and, in some instances, under oath. Her testimony at trial was the subject of a Vetrovec caution.
[108] In light of this, it is difficult to see how the production of these records would have furthered the appellant's ability to make full answer and defence. That difficulty is compounded as the casual reference to relevant events in summary form in a single document affords no basis for cross-examination under s. 10(1) or, for that matter, under s. 11 of the Canada Evidence Act, R.S.C. 1985, c. C-5.
[109] Moreover, the records are sought in relation to collateral issues -- the credibility of Balogh and the reliability of her evidence. Information relating to collateral issues, more accurately, failure to direct its production, does not impair an accused's right to make full answer and defence: O'Connor, at para. 161.
[110] At the second stage, it is a relevant consideration that the records originated in a therapeutic context. Such records, it has been said, are inherently unreliable: O'Connor, at para. 165. Nothing indicates preparation contemporaneous with any statements that may have been made by Balogh. There was no requirement that the notes accurately record any statements. Anything contained in the record was not verified by Balogh. As substantive evidence, any references to things said on interview would be inadmissible hearsay.
[111] Nor can it be said that no privacy interest attaches to the records. Despite the reduced expectation of privacy inherent in the correctional context, the clinical progress notes originated in a therapeutic relationship. Disclosure of information revealed in [page742] that relationship may be injurious to the relationship and stunt its rehabilitative purpose.
[112] As a result, I would not order production of any of the Grand Valley records. Consequently, the demonstrated error about "likely relevance" has no impact on the appellant's conviction.
Ground #2: Inadequate instructions on assessing the evidence of Susanna Balogh and Matthew Sitte
[113] This ground of appeal focuses on the trial judge's final instructions about the manner in which jurors were to assess the testimony of Susanna Balogh and Matthew Sitte. The grievance is twofold. The Vetrovec caution was inadequate. And its inadequacies were exacerbated by other portions of the charge which diluted the caution even further.
[114] The nature of the argument advanced renders unnecessary any further recital of the substance of the testimony of Balogh and Sitte but does warrant a brief overview about some features of the charge to the jury.
The charge to the jury
[115] In his Vetrovec caution, the trial judge
(i) identified Balogh and Sitte as the witnesses whose evidence was subject to a special instruction;
(ii) described the reasons for the instruction;
(iii) cautioned the jury about the danger of acting on the evidence of Balogh and Sitte in the absence of confirmation from some other source, but advised the jury that it could act on their evidence without confirmation if they believed it was true; and
(iv) instructed the jury that it should look for confirmation of their evidence from other sources.
[116] In his charge, the trial judge also instructed the jury that there is a presumption that witnesses give their honest recollection of events when testifying. In his description of what constituted "evidence" on which jurors could make their findings of fact, the trial judge distinguished between questions asked, or more accurately suggestions made to a witness, and the witness' answers. The latter were evidence, the former not, unless the witness agreed with the suggestion of the questioner. The trial judge also reminded jurors that they were not required to be [page743] unanimous about their views on individual pieces of evidence or the basis of liability. Unanimity on proof of the essential elements of the offence, however, was required to find the appellant guilty of an offence.
[117] The trial judge provided two deliberation aids to the jury in addition to a written copy of his final instructions. One of the documents was a decision tree,2 in standard form. The trial judge explained its use to jurors.
The arguments on appeal
[118] The appellant contends that the Vetrovec caution provided by the trial judge was not sufficiently robust to bring home to the jury the frailties of the evidence of Balogh and Sitte and the dangers of acting upon it.
[119] The appellant acknowledges that the trial judge told the jury that it was dangerous to act on the unconfirmed evidence of Balogh and Sitte. But, the appellant says, this language was watered down by the more tepid phrase, "feeling of skepticism", and the invitation to found a conviction based on their testimony if the jurors believed they were telling the truth. The instructions implicitly endorsed the credibility of these witnesses and unduly emphasized the jurors' right to act upon it. Further, the trial judge failed to expressly point out that the admitted involvement of both Balogh and Sitte in the relevant events allowed them to manufacture details about the appellant's involvement that could not be contradicted.
[120] To make matters worse, the appellant continues, the inadequate Vetrovec caution was further weakened by several other instructions the trial judge included in his charge. The erroneous assertion of a presumption that witnesses are truthful. The repeated reference to the non-evidentiary use of questions or suggestions put to the witnesses without adoption of their contents in the witnesses' answers. The repeated reference to the lack of any requirement of unanimity on individual items of evidence and the failure to link the differences in recollections by Balogh and Sitte about important events (like the blowtorching) to the principle of reasonable doubt. And the failure to include in the decision tree, or in the instructions about its use, a reference to the consequences of uncertainty about the adequacy of the Crown's proof. [page744]
[121] The respondent rejects any suggestion that the Vetrovec caution was substandard or its adequacy was diminished by any of the specific complaints advanced by the appellant.
[122] The respondent says that the Vetrovec caution contained the four essential components required by the jurisprudence. The language used, including the term "dangerous", faithfully tracks that jurisprudence. Absent some other deficiency, a caution that contains these prescribed components is adequate. And even if the charge does not properly track the prior jurisprudence, there is no mandatory formula, rather a healthy margin for language choice and entitlement to deference on appellate review.
[123] The respondent notes that the reference to a "feeling of skepticism" was immediately followed by a reference to "dangerous to convict". It was not improper to refer to the witnesses' claims to be speaking the truth, or to remind the jury of its undoubted right to found a conviction on the unconfirmed testimony of the tainted witnesses. Taken as a whole, the instructions adequately reviewed the witnesses' history of lying and did not enhance their credibility. They rather left it to the jury to sort out as it was right to do. The frailties associated with these witnesses and their evidence were self-evident and required no further elaboration.
[124] The respondent accepts that the trial judge was wrong in instructing the jury about the presumption of truthfulness for witnesses. But when the instructions are considered as a whole, especially those that focused on the danger of acting on the unconfirmed evidence of Balogh and Sitte, the erroneous instruction caused the appellant no prejudice. In a similar way, the legally correct distinction between an examiner's questions and a witness' answers did not diminish the force of the Vetrovec caution. In the end, the jurors understood what was and what was not evidence and that, even if a witness adopted a suggestion put by counsel, it was for the jury to say to what extent they would accept and act upon that evidence.
[125] The respondent submits that the instructions about unanimity, more particularly the absence of any requirement of unanimity for individual items of evidence or the legal basis of liability, were neither wrong nor compromising of the Vetrovec caution. The trial judge did relate reasonable doubt to the contradictions between Balogh and Sitte about the date of the blowtorching and provided a W. (D.) instruction about evidence that the appellant was at his parents' cottage when the blowtorching occurred. [page745]
[126] The respondent contests the appellant's submission about the inadequacy of the decision tree. This deliberation aid must be considered along with the specific instructions given about its purpose and use, as well as the instructions given about proof of the essential elements of the offence reflected in the decision tree. A "yes" answer requires proof beyond a reasonable doubt of each element. Uncertainty or a reasonable doubt about the adequacy of proof is not proof beyond a reasonable doubt and results in a "no" answer with specified verdict consequences.
The governing principles
[127] Several principles contribute to an assessment of the validity of this ground of appeal. Some remind us of the standard we are to apply when reviewing alleged errors in jury instructions. Others relate to the essential components of Vetrovec cautions. Still others govern the specific complaints the appellant makes about the presumption of truthfulness, questions and answers as evidence, Thatcher-type instructions about requirements of unanimity, and the form and use of decision trees.
Appellate review of jury instructions
[128] In a criminal prosecution before a jury, the parties, including but not only the person charged, are entitled to a properly, but not a perfectly, instructed jury: R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, [1997] S.C.J. No. 21, at para. 2; R. v. Daley, [2007] 3 S.C.R. 523, [2007] S.C.J. No. 53, 2007 SCC 53, at para. 31.
[129] Appellate courts take a functional approach to claims of inadequacy in jury instructions. We test the instructions as a whole against their ability to achieve their purpose -- to equip the decision maker to decide the case they have been chosen to try. We do not test the instructions according to the extent to which they adhere to or depart from some predetermined pattern or formula: Jacquard, at para. 14; R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146, [1993] S.C.J. No. 8, at p. 163 S.C.R.; R. v. John, 1970 199 (SCC), [1971] S.C.R. 781, [1970] S.C.J. No. 100, at pp. 792-93 S.C.R.; R. v. Khela, [2009] 1 S.C.R. 104, [2009] S.C.J. No. 4, 2009 SCC 4, at para. 47.
[130] In our review of the adequacy of jury instructions, we must bear in mind that a jury charge does not take place in splendid isolation; rather, the context of the trial as a whole, the evidence adduced and the positions advanced are also important in our review: Jacquard, at paras. 33, 35; Daley, at para. 58; R. v. Royz, [2009] 1 S.C.R. 423, [2009] S.C.J. No. 13, 2009 SCC 13, at para. 3. [page746] We must also recognize that the words used or sequence followed by a trial judge in final instructions is largely a matter left, and rightly left, to the sound discretion of the trial judge in the circumstances of the case: Daley, at para. 30.
[131] A final point. It is not misdirection to fail to tell the jury everything that could be said about a particular subject. Non-direction only becomes misdirection when something left unsaid makes wrong something that was said, or where what was left unsaid is essential to an accurate instruction on the subject.
The Vetrovec instruction
[132] A Vetrovec instruction consists of four foundational elements:
(i) identification of the evidence or witness whose testimony requires special scrutiny;
(ii) an explanation of the reasons why the evidence is subject to special scrutiny;
(iii) a caution that it is dangerous to act on the unconfirmed evidence of the witness, but that the jury is entitled to do so if satisfied that the witness is telling the truth; and
(iv) an explanation that, in determining the veracity of the suspect evidence, the jury should look for evidence from another source tending to show that the witness is speaking the truth: Khela, at para. 37; R. v. Kehler, [2004] 1 S.C.R. 328, [2004] S.C.J. No. 1, 2004 SCC 11, at paras. 17-19; R. v. Sauvé, 2004 9054 (ON CA), [2004] O.J. No. 248, 182 C.C.C. (3d) 321 (C.A.), at para. 82.
These elements should guide trial judges in their formulation of a Vetrovec caution, although they are not to be applied in a rigid and formulaic way: Khela, at para. 38. That said, where a caution has these elements, absent some other flaw, it is generally adequate: Khela, at para. 44.
[133] Like other aspects of a jury charge, we review the adequacy of a Vetrovec caution in the context of the entire charge, not in splendid seclusion from it: R. v. Harriott (2002), 2002 23588 (ON CA), 58 O.R. (3d) 1, [2002] O.J. No. 387, 161 C.C.C. (3d) 481 (C.A.), at para. 37; R. v. Winmill (1999), 1999 1353 (ON CA), 42 O.R. (3d) 582, [1999] O.J. No. 213, 131 C.C.C. (3d) 380 (C.A.), at p. 405 C.C.C.; R. v. Crick, 2005 12679 (ON CA), [2005] O.J. No. 1490, 197 O.A.C. 33 (C.A.), at para. 9; R. v. Rochon, 2003 9600 (ON CA), [2003] O.J. No. 1155, 173 C.C.C. (3d) 321 (C.A.), at para. 75. [page747] The nature and strength of the caution is very much a matter for the discretion of the trial judge: Rochon, at para. 75.
[134] When the complaint about a Vetrovec caution is that it was not "strong" or "detailed" enough, judicial restraint is a necessary ingredient in our assessment. Otherwise, we may slip back into the "blind and empty formalism" and "ritualistic incantation" talismanic of the pre-Vetrovec era that Vetrovec rejected: R. v. Zebedee (2006), 2006 22099 (ON CA), 81 O.R. (3d) 583, [2006] O.J. No. 2628 (C.A.), at paras. 80-81; see, also, R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811, [1982] S.C.J. No. 40, at p. 823 S.C.R. Where a Vetrovec caution has been given, appellate intervention is justified only where an appellant can show that, in all the circumstances, the warning as formulated failed to convey to the jury the appropriate degree of caution required for the witnesses whose testimony is subject to the caution: Zebedee, at para. 84.
[135] The word choice for the caution rests with the sound discretion of the trial judge. Provided the discretion is expressed reasonably, appellate courts should not interfere: Zebedee, at para. 92. Sometimes, one formulation is the functional equivalent of another: Zebedee, at para. 92.
[136] Where an appellant claims that a Vetrovec caution is deficient because a trial judge failed to provide an exhaustive catalogue of the reasons for the caution, we should consider whether the characteristics omitted were latent or self-evident. The latter are unlikely to elude a 21st century jury: Zebedee, at para. 95; R. v. Saleh, [2013] O.J. No. 5554, 2013 ONCA 742, 303 C.C.C. (3d) 431, at para. 108; R. v. Linklater, [2009] O.J. No. 771, 2009 ONCA 172, 246 O.A.C. 303, at para. 10.
The presumption of truthfulness
[137] No presumption of honesty or truthfulness accompanies the witness to the witness box. It follows that an instruction that such a presumption applies is legally wrong: R. v. Luciano, [2011] O.J. No. 399, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 147; R. v. Thain, [2009] O.J. No. 1022, 2009 ONCA 223, 243 C.C.C. (3d) 230, at para. 32. Whether inclusion of such an instruction is fatal to the validity of a conviction will depend on the circumstances: Luciano, at para. 149.
Questions, answers and evidence
[138] It is uncontroversial that it is open to counsel in cross-examination to put good faith suggestions to witnesses to seek their response. It is equally uncontroversial, however, that it is the witness' response, not the cross-examiner's question, that constitutes the witness' evidence on the issue. If the witness [page748] adopts the cross-examiner's question as truthful, the adoption becomes the witness' evidence on the point. But the trier of fact, whether judge or jury, is not bound to accept the witness' adoption as true. As with any other piece of evidence, the trier of fact is free to accept or reject it, in whole or in part. If the witness does not adopt the cross-examiner's suggestion as his or her own, the suggestion is not evidence nor is disbelief of the answer given by the witness evidence of the contrary upon which the trier of fact can act.
[139] An instruction that explains that answers not questions constitute "evidence" is routinely provided to jurors in this province and elsewhere to explain what constitutes evidence based on which jurors can make their findings of fact.
The Thatcher instruction
[140] In R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652, [1987] S.C.J. No. 22, the Crown at trial relied on two alternative bases to prove Thatcher was guilty of first degree murder. The first, that Thatcher was the perpetrator, required proof of Thatcher's presence at the time his ex-wife was shot and killed. The second, that Thatcher aided or abetted another who actually killed the deceased, did not require Thatcher's presence at the time and place of the killing.
[141] The Supreme Court decided that, assuming an evidentiary predicate for these alternative routes to liability, an accused could be found guilty provided all jurors were satisfied, on one basis or the other, that the accused committed the offence. Put differently, the law does not require jury unanimity as to the particular nature of an accused's participation in the offence: Thatcher, at pp. 698-99 S.C.R. Since the evidence supporting one basis of liability would not necessarily be the same as that supporting another, it necessarily follows that jurors need not be unanimous upon the evidentiary predicate on which each relies to reach his or her verdict. Nor do individual items of evidence need to meet the criminal standard of proof: R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, [1988] S.C.J. No. 80, at pp. 354-55 S.C.R.; R. v. Ménard (1998), 1998 790 (SCC), 39 O.R. (3d) 416, [1998] 2 S.C.R. 109, [1998] S.C.J. No. 56, at para. 23.
The decision tree
[142] A decision tree is not a jury instruction. It is a deliberation aid that assists jurors in organizing their deliberations in the same sequence as the step-directions provided in the charge. The questions posed in the charge and those depicted in the decision tree are the same. The charge also makes it clear that [page749] the burden of proving the element referred to in each question rests upon the Crown and the standard of proof required for each is proof beyond a reasonable doubt.
[143] In R. v. Sparvier, [2006] S.J. No. 785, 2006 SKCA 139, 215 C.C.C. (3d) 555, the Saskatchewan Court of Appeal suggested "a notation clarifying and confirming the burden and standard of proof would have been helpful" in a decision tree provided to jurors: Spanvier, at para. 41. The court went on to conclude, however, that the instructions of the trial judge, which stressed the requirement that the Crown had to prove each essential element, reflected in the questions posed in the decision tree, beyond a reasonable doubt, would not have left the jury under any misapprehension about either the burden or standard of proof: Spanvier, at para. 42.
The principles applied
[144] I would not give effect to this ground of appeal. I am not persuaded that either the substance of the Vetrovec instruction or the other alleged errors said to dilute its force failed to convey to the jury the appropriate degree of caution required for the testimony of Balogh and Sitte.
[145] I will begin with the complaint about the substance of the Vetrovec instruction. I would reject this claim of deficiency for several reasons.
[146] First, the instructions contain the essential ingredients identified by the authorities. They identified the witnesses to whom the "special instruction" applied and listed the reasons underlying the need for special scrutiny, most of which would have been obvious to the jury. The caution referred to the "danger" in finding guilt based on the unconfirmed testimony of the witnesses. The inclusion of the reference to the authority of the jurors to find guilt established on the unconfirmed evidence of those witnesses is at once legally correct and part of the foundation elements approved in Khela, at para. 37. The caution concluded with an instruction that jurors should look for evidence from other sources tending to show that the untrustworthy witnesses were telling the truth about the guilt of the appellant.
[147] Second, the authorities make it clear that, absent some flaw, a caution with the characteristics approved in Khela and present here, is generally adequate.
[148] Third, the language used and the nature and strength of the warning are matters within the discretion of the trial judge and are entitled to substantial deference. Nothing said or left unsaid in the caution resulted in any failure to convey the [page750] appropriate degree of caution required for the testimony of either witness.
[149] Fourth, the assessment of the adequacy of the caution is not limited to the bare words of the caution itself. The context of the evidence as a whole and the trial itself are also important. The central focus of the trial and counsel's submissions (quite properly) was the credibility of these witnesses and the reliability of their evidence. The jurors could not have failed to appreciate the need for careful scrutiny of their testimony.
[150] Fifth, our precedents counsel restraint when the essence of the complaint about a Vetrovec caution is that it was not strong or detailed enough. While undoubtedly accurate in some cases, such a complaint misses the mark in many others and risks a return to the ritualistic incantation approach abandoned in Vetrovec.
[151] Finally, an essential feature of appellate scrutiny is a healthy appreciation of the scope of appellate review. Functional, not mechanistic. Substance, not form. Message, not medium. Proper, not perfect. This Vetrovec instruction was adequate to the task undertaken.
[152] I am not persuaded that the specific complaints advanced as dilutants of the Vetrovec caution render it inadequate.
[153] The instruction about the presumption of truthfulness or honesty among witnesses was wrong. We recognize no such presumption. Indeed, experience teaches otherwise. But, as in Luciano, the balance of the instruction focused correctly on the credibility of the main witnesses and the reliability of their evidence. A few words at the beginning of a sentence about a presumption of honesty would be long forgotten in the face of a protracted discussion of the lies told by those whose testimony was central to the demonstration of guilt and whose honesty was under attack.
[154] Second, the instruction that distinguished between the evidentiary value of questions and answers was legally correct and essential in a case such as this in which several suggestions were put (not at all improperly) to Balogh and Sitte, but denied by each of them. Perhaps a case may arise in which frequent or constant reference to this distinction dilutes the force of a Vetrovec caution or otherwise causes unfairness, but that is not this case. Neither the fact nor frequency of such references ascends to that level here. Nor did it attract an objection at trial by very experienced trial counsel.
[155] Third, the complaint about the effect of the legally correct Thatcher-like instruction also falls on barren ground. The jurors were properly apprised of the issues on which unanimity [page751] was and those on which unanimity was not necessary. This distinction was legally correct and did not compromise the force of the Vetrovec instruction.
[156] Fourth, the decision tree provided as a deliberation aid for jurors, and the instructions about its use, and the requirements of proof, did not compromise the Vetrovec caution. The jurors were clearly instructed about the obligation of the Crown to prove each essential element, as replicated in the questions posed during the charge and repeated in the decision tree. The consequences of a reasonable doubt on each issue, as well as the absence of a reasonable doubt on the same issue, were clearly explained. To include additional references such as "uncertain" or "unable to decide" in a decision tree, in light of the instructions given about their use and the burden and standard of proof, misunderstands the purpose of decision trees. Decision trees are not jury instructions or their surrogates. Jurors consider the instructions and decision trees as part of a package.
Ground #3: The instruction on fabricated evidence
[157] The appellant advances a further complaint about the substance of the trial judge's charge to the jury. Its focus is what the trial judge told the jury about how they could use evidence of a fabricated statement to support an inference of guilt.
[158] The instruction has its genesis in exculpatory statements made by the appellant to representatives of his insurer and to the police about the origins of the fire that destroyed his home and impeded some aspects of the investigation into the unlawful death of Katlin Cousineau. The Crown tendered these exculpatory statements as part of its case-in-chief and sought to establish that they had been fabricated to divert or deflect suspicion from the appellant in the unlawful killing of the deceased.
[159] At trial, experienced defence counsel agreed that an instruction on fabricated evidence was appropriate, but he objected to the substance of the instruction that was ultimately given.
The issue at trial
[160] The real issue at trial was whether there was any independent evidence to establish that the statements were fabricated as opposed to statements that the jury might simply disbelieve.
The jury instruction
[161] In his charge to the jury, the trial judge invited the jury to consider several factors as capable of furnishing the [page752] independent evidence of fabrication required to determine whether the statements were fabricated. The trial judge said:
If you are satisfied that Paul Bradey's statements and assertions are false you must then decide whether the statements and assertions that you find to be unbelievable are fabricated. You may consider the following factors which are capable of furnishing the independent evidence of fabrication to determine whether he was fabricating those statements:
(1) All of Paul Bradey's statements and assertions in them were voluntary;
(2) Consider whether what he said in his statements and assertions was the result of his own initiative, or whether it was the result of an inquiry focused to elicit information from him and designed to confirm known or suspected facts;
(3) Consider whether his statements contained precise details and specifics or whether his assertions were vague generalities;
(4) Consider whether he had time to think and make up a concocted story, or whether he had opportunity to change his story over time to meet new developments as they came to light;
(5) Consider whether he was aware that he was a suspect at the time he made the statement;
(6) Consider whether he included in his statement facts that the police did not know or had not yet discovered.
If the answers to all, one, or any combination of these factors enable you to find that he was fabricating his statements, then you must next go on to consider the reason why he fabricated the evidence. You must then determine whether he fabricated his statements because he knew he was involved in the unlawful death of Katlin and he was attempting to avoid detection.
[162] The trial judge then continued to review six other areas of the appellant's statements that could be disbelieved because they were contradicted by other evidence.
The arguments on appeal
[163] The appellant says that the trial judge properly distinguished, as the authorities require, between disbelief of an exculpatory statement and proof that the statement was fabricated. He recognized that to establish fabrication of a statement required independent evidence, but the evidence to which he referred the jury could not be characterized as independent. Further, the trial judge failed to clearly instruct the jury that if they disbelieved the statements and found them to have been fabricated on their consideration of "independent evidence", such as the voluntariness of the statements, they could consider the substance of the statements themselves to determine whether they provided positive evidence of guilt. [page753]
[164] The respondent contends that it was common ground at trial that if the jury disbelieved the out-of-court statements, they could go on to consider whether the appellant had fabricated the statements because he had participated in the offence charged. Fabrication, everyone agreed, could only be established by independent evidence. In other words, something beyond mere disbelief was required. The respondent acknowledged an error, or at least confusion, in the reference to "independent evidence" in the original charge, but says this was cleared up in the re-charge. In every event, it was made clear that use of this evidence was contingent on proof of fabrication, not simply disbelief. On these facts, that was enough.
The governing principles
[165] Evidence of what an accused has said or done after an offence has been committed is often a vital part of the case for the Crown. This is circumstantial evidence that looks backward from what happened later to something that occurred before.
[166] The subsequent conduct may take several forms. Flight. Destruction of evidence. Change of appearance. Recruitment of others to provide a false alibi. Much of the evidence that describes what an accused has said or done after an offence has been committed enters a trial without objection as an essential part of the narrative of relevant events: R. v. White, [2011] 1 S.C.R. 433, [2011] S.C.J. No. 13, 2011 SCC 13, at para. 140.
[167] Sometimes, as here, Crown counsel will introduce, as part of the Crown's case-in-chief, evidence of exculpatory statements made by an accused after the offence. The recipients vary. The Crown does not suggest that the statements are true. Quite the opposite. The Crown invites the trier of fact to conclude not only that the statements are false, but also that they were fabricated by the accused in an effort to avoid culpability and thus constitute circumstantial evidence of guilt: R. v. Coutts (1998), 1998 4212 (ON CA), 40 O.R. (3d) 198, [1998] O.J. No. 2555 (C.A.), at para. 13. We distinguish between an exculpatory statement that is disbelieved, and thus rejected by the trier of fact, and one that can be found to have been fabricated, concocted to avoid culpability: Coutts, at para. 13; R. v. O'Connor (2002) 2002 3540 (ON CA), 62 O.R. (3d) 263, [2002] O.J. No. 4410 (C.A.), at para. 17 (later "O'Connor (2002)").
[168] The distinction between exculpatory evidence that is disbelieved, on the one hand, and exculpatory evidence that is found to have been fabricated or concocted, on the other, often arises where the exculpatory explanation is an alibi. But the distinction extends to any exculpatory statement: O'Connor (2002), at para. 18. [page754]
[169] An alibi or other exculpatory statement that is disbelieved is not and does not become an item of evidence that adds to the strength of the case for the Crown: O'Connor (2002), at para. 17. On the other hand, where the Crown adduces evidence from which the trier of fact can infer that the exculpatory explanation has been fabricated, that evidence is capable of supporting an inference of guilt: O'Connor (2002), at para. 17; Coutts, at para. 13.
[170] If the disbelieved statement is not an alibi, we must consider the content of what it is that is disbelieved and the connection of the disbelieved statement to the offence charged: O'Connor (2002), at para. 18.
[171] In many, if not most, cases, a trier of fact may logically infer fabrication from disbelief. But the policy that underpins the distinction between disbelief and fabrication sets its face against using disbelief to infer fabrication. Instead, to establish fabrication, we insist on evidence that is independent of the evidence that contradicts or discredits the exculpatory explanation: O'Connor (2002), at para. 21; Coutts, at para. 16.
[172] Evidence of fabrication may emerge from the circumstances in which the disbelieved out-of-court statement was made: O'Connor (2002), at para. 24. For example, the circumstances in which a false statement was made may show an intent to mislead the police or others or an intent to deflect suspicion from the maker of the statement or towards others: O'Connor (2002), at para. 26.
[173] The decision in O'Connor (2002) affords some examples of circumstances in which a statement was made that might assist in proving that the statement was fabricated:
(i) the timing of the statement, for example, that the accused provided the statement at a time when the police did not suspect or have any reason to suspect the involvement of the accused;
(ii) the scope of the exculpation provided by the statement; and
(iii) the degree of detail provided in the statement: O'Connor (2002), at para. 31.
[174] Where a judge concludes that there is independent evidence of fabrication of an exculpatory out-of-court statement, the judge should instruct the jury that it is open to them to find that the accused fabricated the exculpatory explanation because he or she was conscious of having done what it is alleged and that they may use that finding together with other evidence in [page755] deciding whether the Crown has proven an accused guilty beyond a reasonable doubt: O'Connor (2002), at para. 37.
The principles applied
[175] I would not give effect to this ground of appeal. Despite some faults in the charge, I am satisfied that jurors were not misled on this issue.
[176] It was common ground at trial that a fabricated evidence instruction was appropriate and required in connection with the appellant's pre-arrest but post-offence statements to representatives of his insurer and to the police. He was not a suspect at the time of the statements nor did the police have reasonable and probable grounds to suspect his involvement.
[177] It was also common ground at trial that the evidence that could support a finding that the exculpatory statements were fabricated and not simply false was evidence of the circumstances in which the statements were made. The appellant acknowledges that the six factors listed by the trial judge in his final instructions, as circumstances about the making of the statements that were relevant to establish that the statements were fabricated, were correct.
[178] The principal complaints about the instructions on this issue appear to be that the use of the term "independent" in relation to the origin of evidence to demonstrate fabrication was confusing when the source was the circumstances surrounding the statements themselves. And that some of the evidence mentioned showed no more than that the statements were false, unworthy of belief.
[179] The term "independent" designates a quality items of evidence are to have to permit their use by the trier of fact in making a finding that an item of exculpatory evidence the trier has found to be untrue has been fabricated. In cases in which the evidence relied upon to establish fabrication originates in a source extrinsic to the circumstances in which the statement was made, the use of "independent" is apt. Where the evidence to establish fabrication originates in the circumstances surrounding the disbelieved and allegedly fabricated statement, however, it might be better to avoid the term "independent" in final instructions in favour of a simple recital of the relevant circumstances.
[180] In this case, where the trial judge listed six admittedly appropriate factors emerging from the circumstances in which the disbelieved and allegedly fabricated statements were made as a basis to find fabrication, I am satisfied that the added [page756] descriptive "independent" would not confuse the jurors or compromise unfairly an otherwise correct instruction.
[181] Further, despite the later erroneous evidentiary references, to which no objection was taken at trial, I am satisfied that, read as a whole, the instructions did not whittle down the requirement that the jury find that any exculpatory statements they disbelieved were fabricated before they could use the evidence in finding guilt established.
Ground #4: An unbalanced charge
The arguments on appeal
[182] The final ground of appeal alleges that the charge to the jury was unbalanced, reflecting the trial judge's thinly veiled view about the appellant's guilt. The appellant made no submissions in oral argument in connection with this ground, simply relying on his factum. The respondent did likewise.
[183] In general terms, the appellant recycles his complaints about the inadequacies of the instructions on the credibility of the witnesses Balogh and Sitte and adds complaints about inferences the trial judge suggested could or could not be drawn from the telephone records filed as exhibits and the manner in which the trial judge treated some submissions made by trial counsel in his closing address to the jury.
The governing principles
[184] It is well established that a jury charge should be even-handed, the instructions fair and balanced. A jury charge should not be a partisan broadcast: R. v. Huard, [2013] O.J. No. 4912, 2013 ONCA 650, 302 C.C.C. (3d) 469, at para. 69; R. v. Largie (2010), 101 O.R. (3d) 561, [2010] O.J. No. 3384, 2010 ONCA 548, at para. 127; R. v. Baltovich (2004), 2004 45031 (ON CA), 73 O.R. (3d) 481, [2004] O.J. No. 4880 (C.A.), at paras. 117-18. The purpose of a jury charge is to educate the decision-maker so that it will make an informed decision, not to tell the decision-maker what decision to make.
[185] Further, although it is open to a trial judge to outline inferences that may or may not be available from some circumstantial evidence adduced at trial, no obligation is imposed on a trial judge to catalogue all available inferences from each piece of evidence: Huard, at para. 71.
[186] Finally, although failure to object to a jury charge on a ground later said to amount to a fatal flaw is not dispositive on appeal, the failure to object affords some evidence that trial counsel, an ear and eyewitness to the trial proceedings, [page757] including the charge to the jury, did not consider the charge unfair, incomplete or unbalanced as later alleged: Huard, at para. 74; Jacquard, at paras. 35-37. It is especially so where counsel has had ample opportunity to review drafts of proposed instructions and ample time to offer suggestions for inclusions, deletions and improvements to ensure fairness and even-endedness: Huard, at para. 74.
The principles applied
[187] In my respectful view, the appellant's submissions on this ground fall well short of what is required to justify our intervention. The instructions, taken as a whole and in the context of the trial, did not depart from what is required to the extent necessary to warrant our intervention.
Conclusion
[188] For these reasons, I would dismiss the appeal.
Appeal dismissed.
APPENDIX A
DECISION TREE
CONSTRUCTIVE FIRST DEGREE MURDER
[Editor's Note: This table could not be reproduced online.]
[page758]
Notes
1 Katlin St. Amand was Katlin Cousineau's married name.
2 I have attached the decision tree as Appendix A.
End of Document