Court of Appeal for Ontario

Date: 20220110 Docket: C63052 & C63064

Strathy C.J.O., Hourigan and Paciocco JJ.A.

Docket: C63052

Between Her Majesty the Queen Appellant and Elaine Biddersingh Respondent

Docket: C63064

And Between Her Majesty the Queen Respondent and Elaine Biddersingh Appellant

Counsel: Alexander Alvaro, for the appellant (C63052) and respondent (C63064) Paula A. Rochman, amicus, for the respondent (C63052) and appellant (C63064)

Heard: November 25, 2021

On appeal from the conviction entered on June 20, 2016, by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting with a jury.

Hourigan J.A.:

Part I: Overview

[1] In 1991, Melonie Biddersingh came to Canada as a 13-year-old with her brother, 12-year-old Dwayne, and stepbrother, 17-year-old Cleon. She left Jamaica to live with her father, Everton Biddersingh, and her stepmother, the appellant, in hope of a better life with more opportunities. Instead, from the moment she arrived in Canada she endured horrendous abuse.

[2] On September 1, 1994, a York Regional Police officer discovered a fire burning beside a garbage bin in an industrial area of Vaughan. After the fire department was called to extinguish the blaze, the body of what appeared to be a child, or a small adult was located in the ashes inside the remnants of a suitcase. A forensic pathologist determined that the body was that of a severely malnourished female with 21 fractures and a broken pelvis, and that the cause of death or a major contributing factor was drowning. Unfortunately, at the time, the police were unable to identify the victim. As a result, the case remained unsolved for almost two decades. The body was later positively identified as Melonie. [1]

[3] In December 2011, the appellant disclosed to her church pastor the circumstances of Melonie’s death. She advised that her husband had abused Melonie and that her dead body had been put into a suitcase. The appellant admitted that she, Cleon, and Everton had been involved in the disposal of Melonie’s remains. In addition, the appellant disclosed details of Everton abusing her, both around the time of Melonie's death and at the time of the discussion. The pastor then provided this information to the Niagara Regional Police. As a result, the appellant was eventually interviewed by the Toronto police on January 23, 2012, at which point she provided information about the circumstances of Melonie's death and her own safety concerns with respect to Everton.

[4] On March 5, 2012, Toronto police charged Everton and the appellant with failing to provide the necessaries of life (two counts), criminal negligence causing bodily harm, aggravated assault, forcible confinement, and offering an indignity to a dead human body all in relation to their alleged mistreatment of Melonie. They were subsequently charged with first degree murder.

[5] The two accused were tried separately, with Everton's trial proceeding first. The appellant was called as a witness. Prior to the commencement of Everton's trial, the appellant unsuccessfully applied for an order temporarily banning publication of her evidence and the evidence of other witnesses as to what she was alleged to have said or done. The appellant testified at Everton's trial over a period of four days. The position of Everton's counsel was that she was responsible for Melonie's mistreatment and death.

[6] The trial received extensive negative media coverage. On January 7, 2016, Everton was found guilty of first degree murder. Subsequent media coverage outlined some of the evidence that had been ruled inadmissible at trial, including information detailing Dwayne's suspicious death in 1992.

[7] The appellant’s trial for first degree murder arising from Melonie’s death began on April 11, 2016. Before the trial, defence counsel contacted Crown counsel and sought its consent to proceed without a jury, as required under s. 473(1) of the Criminal Code, R.S.C. 1985, c. C-46, in light of the negative publicity surrounding Elaine's evidence at Everton's trial. The Crown refused to consent to proceed without a jury.

[8] Defence counsel then brought an application to permit the appellant to be tried without a jury based on negative pretrial publicity, pointing to several media articles in relation to evidence adduced and not adduced before the jury in Everton's trial. She also relied on the results of a public opinion survey her counsel had commissioned regarding her case.

[9] The trial judge dismissed the defence’s application and the jury convicted the appellant of second degree murder. On her conviction appeal, with the assistance of amicus, the appellant raises the following grounds of appeal:

1. The trial judge erred in dismissing the defence's application for a judge alone trial based on negative pretrial publicity and juror partiality.
2. The trial judge erred in ruling that certain statements made by the appellant were admissible because she was not a suspect at the time they were made, and in ruling that the police did not mislead her about her legal jeopardy.
3. The trial judge erred in refusing to instruct the jury on the intervening act of drowning.

[10] The Crown cross-appeals against the appellant’s acquittal for first degree murder only if the appellant succeeds on her appeal from her conviction for second degree murder. The Crown raises only one ground of appeal: the trial judge erred in law by limiting the route to first degree murder to death caused by drowning.

[11] For the reasons that follow, I would dismiss the appeal. Given this result, it is unnecessary to consider the Crown’s cross-appeal. In summary, I conclude as follows:

• The trial judge was correct in finding that the appellant did not meet her heavy onus of establishing why the Attorney General's consent to a trial by judge alone should be dispensed with in the circumstances of this case. He properly considered the evidence and the general protections in place to ensure fair jury trials.
• Regarding the impugned statements, even if the trial judge’s voluntariness analysis was flawed, there was no prejudice to the appellant. The impugned statements were not introduced into evidence, and the trial judge’s admissibility decision could not have realistically played a role in her decision not to testify.
• Finally, in the circumstances of this case, the trial judge correctly instructed the jury that to be a cause of death, an act or omission by the appellant must be a significant contributing cause. Given this instruction, there was no need for an intervening act instruction.

Part II: Analysis

(1) Jury Trial

(a) The Issue

[12] The appellant brought an application to dispense with the Attorney General’s consent for a trial by judge alone on the basis that her right to a fair trial under s. 11(d) of the Canadian Charter of Rights and Freedoms would be compromised if a judge and jury tried her. In making this submission, she pointed to the negative pretrial publicity about her evidence at Everton's trial and the evidence that came out after the trial regarding Dwayne's death in 1992 that resulted from a fall from the balcony of the family’s apartment. She also relied on a public opinion poll regarding her case, arguing that it showed that she could not impanel an impartial jury.

[13] The trial judge found that the polling evidence filed by the appellant did not support the suggestion that it would be impossible to find 12 impartial jurors. Further, he determined that, contrary to the submissions of defence counsel, the questions to prospective jurors could be devised in a way that would not reveal prejudicial information. The trial judge also noted that the possibility of prejudicial details coming to the jury's attention after they have been selected could be mitigated by the usual safeguards, including instructions to the jury to refrain from attempting to find information about the case.

[14] On appeal, the appellant does not argue that the Crown’s conduct in refusing to consent to a judge alone trial amounts to an abuse of process. Instead, she submits that her right to a fair trial has been violated. Specifically, she argues that there was a sufficient evidentiary basis for the order sought. According to the appellant, the trial judge erred in law by setting the test for an order for a judge alone trial at a level that is impossible to meet.

(b) The Law

[15] There is no dispute between the parties regarding the relevant process and test on an application for a judge alone trial pursuant to s. 473(1) of the Criminal Code. An accused charged with murder must be tried by judge and jury unless the accused and the Attorney General consent to a trial by judge alone. Where the Attorney General does not consent, the accused can bring an application for an order for a judge alone trial.

[16] The test on such an application is difficult to meet. It was described this way in R. v. Khan, 2007 ONCA 779, 230 O.A.C. 174, at paras. 13 to 16:

…In s. 473(1) of the Criminal Code, Parliament has made its intention clear that a person charged with murder, the most serious crime in the Criminal Code, is to be tried by a court composed of a judge and jury absent the consent of both parties. While this provision can be overridden in order to ensure an accused’s right to a fair trial, it should not be interfered with lightly.

In our view, this court’s decision in R. v. Henderson (2001), 145 O.A.C. 150, is dispositive of this ground of appeal. Henderson makes it clear that an accused seeking a judge alone trial in these circumstances must, at a minimum, meet the test required for a change of venue – a test the appellants concede is more stringent than the one they propose. On our view of the record, the appellants fall well short of meeting that test. We are satisfied that their right to a fair trial was adequately protected through well-established procedures, including extensive screening of prospective jurors and challenges for cause.

As Henderson provides a full answer to this ground of appeal, we find it unnecessary to finally determine the test that should be applied when an accused seeks to dispense with the mandatory requirement of trial by jury under s. 473(1). That said, we are inclined to the view that absent consent from the Crown, in order to avoid the requirement of trial by jury under s. 473(1), an accused must show that, on balance, the time-honoured statutory and common law procedures designed to preserve and protect the right of every accused to a fair trial by an impartial tribunal are insufficient in the particular circumstances of his or her case.

Whatever the precise test, it will not be an easy one to meet. That accords with our view that s. 473(1) should only be overridden in the clearest of cases. The test proposed by the appellants falls well short of the mark. If adopted, it would effectively eviscerate s. 473(1).

[17] Based on the foregoing, the issue is whether the trial judge erred in finding that the appellant had not met her onus of establishing that this is one of the clearest of cases where s. 473(1) should be overridden.

(c) The Appellant’s Position

[18] The appellant submits that the publicity surrounding Everton’s trial was widespread. In support of that submission, she notes that during the course of the trial a juror referenced the death of Dwayne in a conversation with another juror. The appellant concedes, however, that the juror receiving the information brought it to the trial judge's attention and was discharged, as was the juror who conveyed the information, albeit for other reasons. The argument regarding these jurors is not raised as an independent ground of appeal. In my view, it is unfair and unhelpful to consider what a juror might have said during the trial in assessing the trial judge's decision regarding the application for a judge alone trial made before the trial. I do not consider that information relevant in determining whether the trial judge erred in refusing the application.

[19] As noted, the appellant's principal argument relates to the sufficiency of the evidence she adduced on the application. She filed affidavits that affixed copies of articles written about her. In addition, she relied on the results of a public opinion telephone survey conducted by Forum Research. Dr. Lorne Bozinoff, the President and CEO of Forum Research, also testified on the application to explain the survey results. Given problems with Dr. Bozinoff's testimony, the appellant did not rely on his expert evidence and instead relied solely on the raw data generated by the survey.

[20] The appellant focuses on a series of questions designed to determine whether the respondents would be prepared to discharge their duties faithfully and properly. The appellant’s view of the data is that an inference could be drawn that some jurors would not follow a judge’s instruction not to seek or receive outside information, that some jurors would engage in their own Internet research about the case and obtain inadmissible information, and that some who received that information would not be able to disabuse themselves of it when performing their duties.

[21] The trial judge rejected that argument, at para. 41 of his ruling, on the basis that it "is founded on an assumption that members of a real jury in a real trial will behave in the same way as random members of the public taking a telephone survey." He observed that even though the survey respondents were asked to assume that a judge had instructed them not to research any details on the case, they were not asked to assume that a Superior Court judge explained to them the importance of the instruction, how it could lead to a miscarriage of justice if they did not follow the instruction, and that they had taken an oath or made a solemn declaration to decide the case solely on the evidence led at trial. Further, the trial judge relied on R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, for the proposition that trial processes are effective in cleansing jurors of influence from emotion, prejudice, or preconception.

[22] The appellant argues that the error in the trial judge's analysis is that if a court can always fall back on the general court process to protect the interests of the accused to a fair trial, then an order for a judge alone trial under s. 473(1) of the Criminal Code will never be granted. In other words, the bar has been set too high.

(d) Discussion

[23] I would not give effect to this ground of appeal. I accept that the impugned part of the trial judge’s analysis regarding the safeguards in the criminal jury system could apply in any case. However, in my view, this part of his analysis was directly responsive to the inferences that the appellant was drawing from the survey data. She put forward the rather general argument that there is a chance that jurors would not abide by a trial judge’s instructions and might conduct their own research. Of course, the same argument could be made in any case. The trial judge quite correctly responded to that submission by observing that the safeguards developed over the centuries have evolved to protect against those possibilities.

[24] Second, the trial judge's analysis was not limited to the general safeguards in the trial process. He considered the circumstances of this case. For example, he noted that the survey results showed that when asked whether they had heard or seen anything in media or the Internet regarding "the death of Melonie Biddersingh [whose] body was found in [a] burning suitcase in 1994 [and whose] remains weren't identified until 2012 when her father and stepmother were charged with murder," 46% of respondents answered no. In addition, he pointed to the result that 74% of respondents had not heard or seen anything about the appellant. The trial judge also placed the coverage of Everton's trial in context, noting that at the time of the trial, there was another high profile case in the news that involved the shooting by a police officer of a member of the public on a streetcar.

[25] In my view, the trial judge properly considered the evidence and the general protections in place to ensure fair jury trials and reached a decision that was free from error. Consequently, I would not give effect to this ground of appeal.

(2) The Appellant’s Statements

[26] The Crown brought a pretrial application for an order that various statements made by the appellant to the police were admissible for the purposes of cross-examining her if she chose to testify. At issue on this ground of appeal is the trial judge's ruling regarding two of the appellant's statements. The first statement was made on January 23, 2012, to Detective Sergeant Steve Ryan of the Toronto Police Service in the course of an interview at the office of the Homicide Squad. The second statement was made on March 5, 2012, to Detective Sergeant Ryan in the course of an interview at 52 Division following her arrest.

[27] Detective Sergeant Ryan testified on the voir dire. The defence called no evidence. The trial judge found that, at the time of the January 23, 2012 statements made to Detective Sergeant Ryan, a reasonably competent investigator would have considered the appellant to be a witness and not a suspect because the investigation was focused on the mistreatment of Melonie and potentially the appellant, and not neglect or inadequate parenting on the appellant’s part. As a result, the confessions rule did not apply and the statement could be used for the purposes of cross-examination.

[28] In the alternative, the trial judge concluded that even if the appellant was a suspect, her statements were nevertheless voluntary. He noted that the statement was videotaped and affirmed and that the officer provided the appellant with the primary and secondary caution. The officer instructed the appellant regarding her right to counsel and gave her the opportunity to speak to a lawyer when she asked. Further, he told the appellant that she could be charged with offences including homicide and warned her of the penalties for lying under oath. All of these steps were consistent with what she would have been told had she been arrested and charged, except that she was informed that she could leave at any time. Thus, the trial judge found that the cautions and warnings given by the officer were more than sufficient to advise the appellant of her right to remain silent. He also held that there was no evidence that Detective Sergeant Ryan misled her.

[29] In addition, the trial judge found that the statement made to Detective Sergeant Ryan after the appellant's arrest during the police interview on March 5, 2012 was voluntary as it was not tainted by references to the January 23, 2012 statement.

[30] Neither of the statements were tendered in evidence at trial, as the appellant elected not to testify.

[31] The appellant submits that the trial judge made three errors in his analysis. First, she argues that he erred in finding that she was not a suspect but a witness at the time of her January 23, 2012 statement. Second, the trial judge is said to have erred in finding that Detective Sergeant Ryan did not mislead her by providing incorrect legal advice regarding her potential jeopardy if she had done nothing to stop the abuse of Melonie. Finally, the appellant submits that her March 5, 2012 statement should also have been ruled inadmissible because it was tainted by references to her January 23, 2012 statement.

[32] In support of her submission, the appellant seeks to adduce fresh evidence on this appeal. The proffered evidence is a CTV news article published on September 10, 2021, in which former Detective Sergeant Ryan – now CP24's Crime Analyst – discussed taking a statement from the appellant and his reaction to her interview. The story was based on a podcast on which the officer appeared. The appellant maintains that the parts of the article demonstrate that Detective Sergeant Ryan misled the court when he testified that he did not believe the appellant to be a suspect.

[33] I am not persuaded that the appellant suffered any prejudice as a consequence of the trial judge’s voluntariness ruling. The impugned statements were not introduced into evidence, and the trial judge’s admissibility decision could not realistically have played any role in her decision not to testify, given that she had conceded the voluntariness of two other statements and would be facing her testimony from Everett’s trial. Further, there is nothing in the impugned interviews that could realistically have altered her testimony.

[34] Given my conclusion that the appellant could have suffered no prejudice from the trial judge’s admissibility ruling, it is unnecessary to consider the fresh evidence application. For these reasons, I would dismiss this ground of appeal.

(3) Intervening Act

[35] The appellant submits that the trial judge erred in failing to instruct the jury on the intervening act of drowning in the context of culpable homicide. The defence requested this instruction in the pre-charge conference. Specifically, it sought an instruction that the jury should consider whether the drowning was an intervening act. The request for an intervening act instruction arose from the theory that Everett may have drowned Melonie on his own, which, if true, could have been an intervening act that broke the chain of causation.

[36] The trial judge rejected that request. Instead, he repeatedly instructed the jury that the appellant’s conduct had to make a “significant contribution” to Melonie’s death to be guilty of culpable homicide. He charged the jury as follows:

[335] Proof that Elaine Biddersingh’s failure to intervene to protect Melonie was an unlawful act is not sufficient to make her guilty of culpable homicide unless it was a cause of Melonie's death. As I have said, to be a cause of death, an act or omission must be a significant contributing cause. It is for you to say whether the defendant’s failure to intervene played a significant role in permitting a course of conduct that led to Melonie's death by drowning to continue. If you have a reasonable doubt concerning whether it played a significant role, then her failure to intervene will not make her guilty of culpable homicide.

[336] As I have said, one of the essential elements that must be proved to make a failure to perform the legal duty to protect Melonie from harm an unlawful act is the objective foreseeability of endangerment of Melonie's life or the risk of permanent injury to her. Objective foreseeability does not require that the specific mechanism of harm that was ultimately “inflicted on Melonie, drowning, have been foreseeable...” What is required, rather, is that a reasonable person would have foreseen that the failure to protect Melonie from the ongoing course of assaultive behaviour would lead to some further assaultive behaviour that would endanger her life or create a risk of permanent injury. Accordingly, if you are satisfied beyond a reasonable doubt that Elaine failed to intervene of protect Melonie, in circumstances that make her failure an unlawful act, that that unlawful act made a significant contribution to Melonie's death, and that it was objectively foreseeable that a failure to intervene would expose Melonie to a danger to her life or the risk of permanent injury, she is guilty of culpable homicide.

[37] I am not persuaded that the trial judge erred in declining to give the intervening act instruction. His significant contribution instruction was entirely consistent with the decision of the Supreme Court in R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at para. 38.

[38] In my view, given the factual circumstances of this case, the significant contribution instruction made an intervening cause direction unnecessary. This can be seen by looking at the material factual scenarios if Melonie drowned:

• Scenario 1: The appellant caused the drowning death of Melonie by actively participating in the drowning as a principal. No intervening act is possible, and no direction is required.
• Scenario 2: The appellant aided or abetted Everett by encouraging him to drown Melonie or by assisting the drowning in some way short of direct participation, with the intention of assisting him. If she intentionally aided or abetted the very act, no intervening act is possible, and no direction is required.
• Scenario 3: The appellant failed to fulfil her duty to protect Melonie from Everett’s abuse in circumstances where it was reasonably foreseeable that Everett would kill Melonie. For there to be causation, the jury would be required to conclude that the appellant’s failure to act was a significant contributing cause to Melonie’s death. The trial judge not only repeatedly told the jury in general terms that to convict the appellant, they had to find that she had to make a significant contribution to Melonie's death, but also directed the jury specifically on this theory of guilt, telling them that they had to find that the appellant’s failure to discharge her duty by intervening had to play a significant role in permitting the course of conduct that led to Melonie’s death. On that scenario, there is no possibility of an intervening act.
• Scenario 4: Everett drowned Melonie on his own, without the appellant’s participation, either unforeseeably or without the appellant having failed to discharge her duty. This would be an intervening act on Everett's part, but if the jury had a reasonable doubt that this may have happened, the judge's direction that to be guilty, the appellant had to make a significant contribution to Melonie's death, would have prevented her conviction.

[39] Based on the preceding analysis, I am of the view that the trial judge did not err in failing to give the requested intervening act instruction. On the contrary, the jury had a functional understanding of their obligations as a consequence of the significant contribution instruction. Therefore, I would dismiss this ground of appeal.

Part III: Disposition

[40] I would dismiss the application for fresh evidence and dismiss the appeal for the foregoing reasons. The cross-appeal was only to proceed if the appellant succeeded in her appeal. Therefore, I would dismiss the cross-appeal as abandoned.

Released: January 10, 2022 “G.R.S.” “C.W. Hourigan J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. David M. Paciocco J.A.”

[1] First names are used in these reasons for clarity and are not intended to show any disrespect to the parties.