R. v. Howard, [1989] 1 S.C.R. 1337

Murray John Howard Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. howard

File No.: 19982.

1988: May 19; 1989: May 18.

Present: McIntyre, Lamer, Le Dain[^1], La Forest and L'Heureux-Dubé JJ.

on appeal from the court of appeal for ontario

Evidence -- Expert opinion -- Testing of expert evidence -- Opinion as to footprints -- Expert for defence to testify that footprints not those of co-accused -- Co-accused pleading guilty and statement of facts indicating that footprints those of co-accused -- Evidence of co-accused's plea not admissible -- Whether or not trial judge should permit question to expert querying if opinion would have been influenced by statement relating to co-accused.

Appellant and a co-accused had been tried jointly by judge sitting with jury and found guilty of first degree murder. The Court of Appeal found that the trial judge had erred in some respects and ordered a new trial. The co-accused, however, pleaded guilty to second degree murder prior to the second trial. The facts of the case were read and the Crown, while giving no explicit account of co-accused's presence at the scene of the crime, stated the footprints near the victim's body had been made by the co-accused's shoes. At the first trial, both the Crown and defence called experts on footprints to seek to establish or disprove respectively that the footprints found by the body of the victim were made by the co-accused. At the second trial, the Crown experts again testified in similar terms. Before the defence expert was to testify, however, the Crown sought and was granted permission to ask him whether or not the fact that the co‑accused had subsequently pleaded guilty to the murder and had accepted a statement of facts that put him at the scene of the crime would change his opinion as given at the first trial. The defence accordingly chose not to call its footprint expert. The Court of Appeal dismissed appellant's appeal from conviction and his appeal in this Court was by leave. The issues before this Court were: (1) whether or not Crown counsel was entitled to refer to the guilty plea entered by the co-accused in the cross-examination of the expert witness for the defence; (2) whether or not the charge was adequate with respect to planning and deliberation; (3) whether or not the verdict of first degree murder was unreasonable; (4) whether or not the trial judge adequately put forward the defence theory.

Held (L'Heureux-Dubé J. dissenting): The appeal should be allowed.

Per McIntyre, Lamer and La Forest JJ.: Only the first issue needed be addressed. The fact that the co-accused had pleaded guilty and had acknowledged the footprint as his was not a fact adduced, or intended to be adduced, in evidence when the Crown sought to put the question. The examiner or cross‑examiner cannot put as a fact, or even a hypothetical fact, what is not and will not become part of the case as admissible evidence. The Crown's proposed question should have been denied on this ground alone.

An expert cannot take into account facts that are not subject to his professional expert assessment as they are irrelevant to his expert assessment. A fortiori, the expert should not be told of and asked to take into account a fact that is corroborative of one of the alternatives he is asked to scientifically determine as that could inject bias into the application of his expertise. A cross‑examination may be conducted to determine whether what the expert considered was relevant, whether there were matters relevant that were not considered, and whether the expert might have arrived at his conclusion as a result of considerations irrelevant to his particular expertise. It is not relevant to the validity of his opinion, however, that the expert had not considered an irrelevant matter. The proposed cross‑examination would establish no more than that he had not considered an irrelevant matter and therefore would not impugn the validity of his opinion.

At the next trial, if the Crown should choose to call the co-accused to testify to the facts that would tend to prove that the conclusions of the defence expert wrong, these facts are for the consideration of the jury and not of the defence expert, except perhaps for the very limited purpose of testing with the expert the degree of certainty to be given to his conclusions.

Per L'Heureux-Dubé J. (dissenting): The trial judge enjoys some measure of discretion in controlling cross-examination which, in the case of expert testimony, involves certain special considerations. Experts are mainly called to give their opinion, which may be based in whole or in part upon facts not otherwise admissible as evidence at trial. The underpinnings of an expert opinion are thus generally admissible as going to the expert's credibility. It does not follow, however, that when the expert discloses these underlying facts they are proven or must otherwise be taken as representing the truth. It is the duty of the trial judge to give directions to the jury on this point.

If the cross-examination were to be limited to the facts which will "become part of the case as admissible evidence", then it would become all but impossible to cross-examine an expert witness as to the basis of his opinion. Such an inflexible approach is not warranted. The greater latitude allowed to an expert in examination-in-chief involves a correlative latitude in cross-examination as to the basis of the expert's opinion.

The charge was adequate with respect to planning and deliberation. The trial judge did not err when he instructed the jury to rely on the evidence that the murder was intentional on the part of the co-accused in order to find planning and deliberation on the part of the appellant. Much of the evidence of planning and deliberation overlapped with the evidence of intent on the part of the co-accused. The trial judge was not under a duty to repeat all the specific elements of evidence already outlined in connection with his instructions relating to aiding and abetting. The charge left no room for any possibility that the jury could have found first degree murder on something less than planning and deliberation with respect to murder, i.e. planning and deliberation with respect to robbery. The trial judge's instructions with respect to the significance of alcohol consumption in relation to planning and deliberation were sound. The trial judge properly instructed the jury that the accused's drunkenness fell short of incapacity to form the intent to kill and so negated planning and deliberation. He was not required to instruct them further that the accused may have acted impulsively because of alcohol consumption and there was little likelihood that a reasonable jury would have reached such a conclusion.

Appellant did not discharge the burden of proving that the verdict was not one that a properly instructed jury, acting judicially, could have rendered.

The trial judge reviewed in great detail the evidence given by the accused and the theory and evidence of the accused were adequately put to the jury.

Cases Cited

By Lamer J.

Referred to: R. v. Turner, [1975] Q.B. 834; State v. Smallwood, 548 P.2d 1346 (1976); R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168.

By L'Heureux-Dubé J. (dissenting)

Bleta v. The Queen, 1964 CanLII 14 (SCC), [1964] S.C.R. 561; R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 R.C.S. 24; R. v. Nielsen and Stolar (1984), 1984 CanLII 40 (MB CA), 16 C.C.C. (3d) 39; R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652; R. v. Mitchell, 1964 CanLII 42 (SCC), [1964] S.C.R. 471; R. v. Howard and Trudel (1983), 1983 CanLII 3507 (ON CA), 3 C.C.C. (3d) 399; R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168.

Authors Cited

Wigmore, John Henry. Wigmore on Evidence, vol. 5. Revised by James H. Chadbourn. Boston: Little, Brown & Co., 1974.

APPEAL from a judgment of the Ontario Court of Appeal (1986), 1986 CanLII 4725 (ON CA), 29 C.C.C. (3d) 544, dismissing an appeal from a conviction by Craig J. sitting with jury. Appeal allowed, L'Heureux-Dubé J. dissenting.

Chris Paliare and Janet Mosher, for the appellant.

Michael F. Brown, for the respondent.

//Lamer J.//

The judgment of McIntyre, Lamer and La Forest JJ. was delivered by

LAMER J. -- The appellant Howard was indicted and convicted by a jury of the first degree murder of a taxi driver near London, Ontario. His appeal to the Ontario Court of Appeal was dismissed and is now in appeal in this Court pursuant to leave. He raises four grounds of appeal. As one of those grounds should in my view succeed and there need not be a determination of the others, I shall limit my narration of the facts in evidence and my summary of the proceedings below to what is necessary to that ground only.

The Facts

On Saturday, October 20, 1979, an abandoned About Town station wagon taxi was found in a field southwest of London, Ontario, near the town of Lambeth. The bludgeoned body of the driver was found a day later about five miles away. Near the driver's body was the murder weapon, a short steel stake from a construction site. The driver's wallet was not found until April, 1980 at a third location about 2.4 miles from where the body was found. The wallet contained no money, although it was estimated that the driver would have collected about $95 in fares during the shift.

On Friday, October 19, the appellant and his co‑accused Trudel were drinking in the Brunswick Hotel from 7:00 p.m. until 1:30 a.m. Saturday. While there they met a couple named Frank and Nancy Katool. Frank Katool was a contractor who offered the appellant employment as a labourer. He wrote out his name, address and phone number and told the appellant to call him "tomorrow or some time or other". Frank Katool stated in evidence that he did not invite the appellant back to his house nor did he expect the appellant to phone him that night. Nancy Katool gave the appellant directions to their home, which was in north London, but stated that she did not invite the appellant or Trudel to their home that night, and likewise did not expect them to attend. The Katools lived on Sharon Drive in north London, but there was also a Sharon Road southwest of London, near Lambeth.

The Katools went home to bed about 1:00 or 2:00 a.m. and at some point after that but before 5:00 a.m. received a phone call from the appellant asking if the job offer was serious. The appellant was told to call back in the morning.

During the evening of drinking at the Brunswick Hotel the appellant had asked another patron who was an acquaintance for a ride home, but had subsequently stated that he no longer needed a ride as he had something else to do. After the Hotel stopped serving alcohol, the appellant and Trudel asked the bartender if "the cabdriver would come in" or "... whether they would have to wait outside".

At 2:16 a.m. the deceased cab driver radioed his dispatcher that he had found a fare. He was in the area of the Brunswick Hotel at the time. The deceased did not respond to further radio communication which the dispatcher found unusual. At 2:20 a.m. a witness observed an About Town station wagon taxi in front of the Brunswick Hotel with its fare light off, indicating that it had been hired. In front of the Hotel the City of London had been replacing the sidewalks, and this involved the use of short steel stakes such as the murder weapon. These stakes were left on the construction site during the night of October 19‑20. It was established in cross examination that identical stakes were also in use at various other construction sites across the city.

In the early morning hours of October 20, a resident of the area where the taxicab was later found awoke to see a taxi in his lane way with its lights out. There was a commotion heard, with doors opening and closing and the taxi eventually drove away, in a jerky fashion as if the driver were not used to the vehicle. The spot where the taxi was later found is about 20 to 24 miles from the Brunswick Hotel, and the taxi meter indicated that the cab had travelled about 22 miles during its last trip.

At 4:49 a.m. on October 20, the appellant and Trudel called for a U‑Need-A‑Cab from a phone booth near Lambeth, Ontario. They asked the driver about a "Shaun" Road, which he was unable to find, so he took them to the premises of a bootlegger at 141 Waterloo Street in London. A resident of 141 Waterloo Street who was an alcoholic and blind in one eye, saw two men arrive in a U‑Need‑A‑Cab and sit in an enclosed veranda drinking beer and dividing a sum of money.

The appellant, a London native, gave a number of statements to the police and also testified at trial. His testimony was consistent with the prior statements. He stated that Nancy Katool included in her directions to her home reference to a restaurant in north London called the Knotty Pine, and a place called Ritchie's. There is a Ritchie's in north London and south London, although not in the town of Lambeth. He testified that he left the Brunswick Hotel after it closed, and that although he was "feeling good" he was under control. He stated that he and Trudel hitchhiked out to Lambeth, and wandered about for some two hours looking for a "Sharon" or "Shaun" Avenue in an attempt to find the Katool residence, because when they were at the Brunswick Hotel Nancy Katool had invited them to drop in for breakfast. They could not find the street despite Lambeth's being at the time a small place with 12 or 13 streets in total and despite having the Katools' name, address and phone number with them. After unsuccessfully attempting to hitchhike, they called the U‑Need‑A-Cab.

Judgments

The Trial Court

This is Howard's second trial. At his first trial, Trudel was his co‑accused. At the first trial, both the Crown and defence had called experts on footprints to seek to establish or disprove respectively that the footprints found by the body of the victim were made by the co‑accused Trudel. At the second trial, before Craig J., the Crown experts again testified in similar terms. Before the defence expert was to testify, the Crown sought permission to ask him whether or not the fact that the co‑accused Trudel, whose alleged footprints were in issue, had subsequently pleaded guilty to the murder and had accepted a statement of facts that put him at the scene of the crime, would change his opinion as given at the first trial. Precisely, the intended question was described by the Crown as follows:

... I would put to him that Mr. Trudel has, since the last time he gave his opinion, pleaded guilty in a judicial proceeding to murdering Gregory McCart and was present with counsel when facts were produced or adduced before the court indicating those footprints were his. And I would ask him whether the fact that since he last testified that person has admitted to the killing and has admitted, through counsel, at least, to those footprints being his. Whether that changes his opinion.

The trial judge ruled on this request as follows:

In my opinion, it may be that the putting of the questions would be very prejudicial; but the evidence of the expert, Dr. Watt, is not put forward by the Crown but rather by the defence. When an expert witness enters the witness box, it is quite clear that he can state either in examination‑in‑chief or in cross‑examination the basis for his opinion.

If called as a witness, Dr. Watt may say that this additional information put to him in cross-examination does not change his opinion; but in deciding what weight to attach to an opinion the jury is entitled to consider the basis for the opinion, and whether the expert has rejected relevant considerations before expressing the opinion. The Crown is in a position to prove the accuracy of the suggestions to be made by Dr. Watt if he is called. In my opinion, the Crown cannot be prevented from conducting cross‑examination to show, or attempt to show, that the opinion of an expert is unsound, or that the witness has failed to consider relevant matters. [Emphasis added.]

As a result of this ruling by the trial judge, the defence chose not to call its footprint expert, Dr. Watt.

The Court of Appeal

After having addressed other grounds of appeal, the Court next addressed the argument of the appellant that the trial judge erred in permitting the Crown to put the co‑accused's apparent admission to the defence footprint expert: see (1986), 1986 CanLII 4725 (ON CA), 29 C.C.C. (3d) 544. The Court acknowledged that the Crown could not put Trudel's guilty plea into evidence as part of its case. Nor, as a general rule, could the Crown be permitted to do indirectly what it cannot do directly. However, in deciding that Trudel's apparent admission to being present at the scene of the crime could be put to the defence footprint expert, the Court reasoned in this way at pp. 558-59:

Many factors will be taken into account by an expert in reaching his conclusions. It is appropriate and proper to cross-examine an expert as to those factors which he has considered and those which he has not. It would be difficult to imagine questions more pertinent than those which sought to ascertain whether the expert had taken into account the apparent admissions of Trudel that he was in the field with the victim and that the footprints near the body were his. These are questions that would go to determining whether the expert had considered all relevant aspects of the situation. More importantly, they would be pertinent to a consideration of the credibility of his evidence. If Dr. Watt had continued in the face of Trudel's guilty plea, as he had proposed, to declare that the footprint in the field could not have been Trudel's, his testimony might well have been considered suspect by the jury.

There is a little of Alice in Wonderland in the position of the appellant. He has put forward an expert to substantiate his defence that he was not at the scene of the murder, yet he objects to the cross‑examination of that expert as to whether or not he had taken into account what to most laymen would appear to be a vitally important factor. [Emphasis added.]

The Issue

The issue in this Court is:

Did the Ontario Court of Appeal err in upholding the trial judge's ruling that Crown counsel was entitled to adduce through the defence expert, evidence relating to the plea of the co‑accused?

In support of this ground, the appellant advances the following proposition:

1. Since a guilty plea does not amount in law to an admission of the facts read in at such a plea, there were no facts concerning the footprints at the scene of the crime being Trudel's for the Crown to put to the defence footprint expert.

2. Even if Trudel's position at his guilty plea constitutes an admission of the fact that the footprints at the scene of the crime were his, such an admission is inadmissible in evidence. Only Trudel could give the necessary first hand evidence that he made the footprints in issue, and he was not called by the Crown.

3. In any event, the fact of Trudel's admission is irrelevant to the opinion of an expert, as the proper parameters for the basis of such opinions are governed by the prevailing professional standards of the particular expertise.

4. In the alternative, if the admission is relevant, it is inadmissible. The real object of the proposed line of questioning was not to assess the reliability of the expert opinion, but rather to establish the truth of the matters put to the expert. Since the predominant effect of the proposed questions would be to introduce inadmissible hearsay which could be potentially misused by a jury, the questions should be disallowed. Further, the prejudicial effect of the evidence so introduced would far outweigh its probative value because the Crown could not prove the guilty plea from whence it came.

5. A limiting instruction would be insufficient in this case as the jury would be incapable of accepting the evidence as applicable solely to the basis for the expert's opinion and not applicable to its own truth.

The Crown argues that the intended question was relevant because the trier of fact is entitled to know the basis of an opinion advanced by an expert in order to assess its probative value.

The Crown relies on, amongst others, R. v. Turner, [1975] Q.B. 834, in which Lawton L.J. speaking for the English Court of Appeal, stated at p. 840 that the party calling an expert was obliged to put the basic facts for that opinion before the trier of fact.

Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. [Emphasis added.]

Respondent argues that:

If Dr. Watt were to be called to express his opinion, Crown counsel was entitled to fully explore the method by which the opinion was formed, and to review matters not considered by the witness. The proposition also finds support in decisions of several American State Courts. See, e.g. State v. Smallwood, Or.App., 548 P. 2d 1346, at 1350, (1976); State v. Hull, Or.App., 578 P. 2d 434, at 437‑438 (1978); State v. Turner, N.Mex., 468 P. 2d 421 at 427 (1970); People v. Alward, Colo. App., 654 P. 2d 327 at 331 (1982). Gardner v. State, Ind., 419 N.E. 2d 749, at 753 (1981).

In State v. Smallwood, 548 P.2d 1346 (Or. 1976), Fort. J. in a somewhat different context, stated:

The jury is as entitled to know what relevant information was not available to or considered by an expert in arriving at his opinion as it is to know what the expert did consider. It is relevant in determining his competency as an expert and also the weight to be accorded his opinion. . . . The trial of an issue of fact is not a game; it is a search for the truth." [Emphasis added.]

Analysis

The fact that Trudel had pleaded guilty and had acknowledged that the footprint was his was not at the time the question intended to be put[^2] to the expert, and was not going to become, a fact adduced in evidence; nor was it a fact that could fairly be inferred from the facts in evidence. It is not open to the examiner or cross‑examiner to put as a fact, or even a hypothetical fact, that which is not and will not become part of the case as admissible evidence. On this ground alone, the question should have been denied.

The only ground upon which I can see the question's being properly put would be to determine whether the expert took into account facts irrelevant to his expertise.

Experts assist the trier of fact in reaching a conclusion by applying a particular scientific skill not shared by the judge or the jury to a set of facts and then by expressing an opinion as to what conclusions may be drawn as a result. Therefore, an expert cannot take into account facts that are not subject to his professional expert assessment, as they are irrelevant to his expert assessment; a fortiori, as injecting bias into the application of his expertise, he should not be told of and asked to take into account such a fact that is corroborative of one of the alternatives he is asked to scientifically determine. If the Crown experts had been told by the police when they were retained that Trudel had in fact confessed and that he acknowledged facts that established that it was his footprint, we would be left in doubt as to whether their conclusion is a genuine scientific conclusion. This is so because their expertise does not extend to Trudel's credibility, and what he admits to is totally irrelevant to what they were asked to do to help the Court, that is apply their scientific knowledge to the relevant "scientific facts", i.e., the moulds, etc.

I have underlined in Lawton L.J.'s judgment in R. v. Turner, supra, and Fort J.'s judgment in State v. Smallwood, supra, the word relevant. Indeed I agree with those judgments as they support the proposition that a cross‑examination may be conducted to determine whether what the expert considered was relevant, whether there are matters relevant that were not considered and, of course, whether the expert might have arrived at his conclusion as a result of considerations irrelevant to his particular expertise. An expert may obviously be cross‑examined to that effect, that is whether relevant facts were ignored or disregarded, and whether irrelevant facts were taken into account, but only irrelevant facts supportive of the conclusion arrived at. As put by the appellant in his factum

Evidence establishing that an expert had failed to form his opinion on a proper scientific basis and had considered irrelevant matters is relevant to the validity of that opinion. However, it is not relevant to the validity of that opinion that the expert had not considered an irrelevant matter. The proposed cross‑examination of Dr. Watt would establish no more than that he had not considered an irrelevant matter and therefore would not impugn the validity of his opinion.

I agree and find the question and answer thereto inadmissible. This is sufficient to dispose of the matter. However, as this case is to be retried, I should add a comment. At the next trial Trudel may be called, if the Crown so chooses, to testify to these facts that would tend to prove that Dr. Watt was wrong in his conclusion. They are facts for the jury's consideration, not for Dr. Watt, except maybe for the very limited purpose of testing with the expert the degree of certainty to be given to his science of which he will have testified.

Disposition

The appellant is asking us to acquit or, if ordering a new trial, that the charge be reduced to second degree murder.

I have read evidence and have come to the conclusion that a verdict of first degree murder "is one that a properly instructed jury acting judicially could reasonably have rendered" (per McIntyre J. for the Court in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185).

I would therefore allow the appeal and order a new trial on the charge of first degree murder.

//L'Heureux-Dubé J.//

The following are the reasons delivered by

L'HEUREUX-DUBÉ J. (dissenting)

In the early morning hours of October 20, 1979, nearly ten years ago, Gregory McCart was driving a taxicab in the area of the Brunswick Hotel in the City of London. Shortly after 2:00 a.m., he informed his dispatcher that he had found a fare. This was his last communication with the dispatcher. Later that morning, McCart's lifeless body was found in a corn field ten miles southwest of the city. McCart had been brutally beaten to death with a steel stake. The circumstances of the killing are set out in full in the judgment of the Court of Appeal below and need not be repeated here.

The appellant was charged together with Michael Trudel in connection with the killing on the following indictment:

MICHAEL ALEXANDER TRUDEL AND MURRAY JOHN HOWARD STAND CHARGED THAT on or about the 20th day of October, 1979 at the Township of Delaware, in the County of Middlesex, they did kill Gregory Michael McCart and thereby commit first degree murder, contrary to Section 218(1) of the Criminal Code of Canada.

Trudel and the appellant were tried jointly and on November 15, 1980, a jury returned a verdict of guilty as charged against each of the co-accused. This conviction was appealed and in January of 1983, the Court of Appeal found that the trial judge had erred in some respects and ordered a new trial. Prior to the commencement of the appellant's second trial, Trudel entered a plea of guilty to second degree murder. This plea was accepted by the Crown. Counsel for the Crown then read the facts of the case and, while counsel gave no explicit account of Trudel's presence at the scene of the crime, he did say that Trudel's shoes "were identified as having made the footprints near the body in the field". Counsel for Trudel made no objection to the Crown's statement of the facts nor did he object to the Crown's recommended sentence. Trudel was sentenced to life imprisonment without eligibility for parole for a period of twelve years.

The appellant for his part entered a plea of not guilty. His sole defence was in the nature of an alibi, namely, that at all relevant times he was with Trudel and that neither Trudel nor he were at the scene of the murder. Giving testimony at his second trial, the appellant acknowledged being at the Brunswick Hotel with Trudel until closing time, though he denied getting a cab there. The appellant testified that he and Trudel walked and eventually hitched a ride to Lambeth in the middle of the night. There, they wandered around for some two hours before calling a cab which picked them up at approximately 5:00 a.m. Together with Trudel, the appellant said he then proceeded to a bootlegger's home in London where both of them drank beer with another person until 7:00 a.m. During cross-examination, the appellant stated that he did not know what had happened to McCart.

In support of his defence, the appellant called two experts on footprints, Dr. Morton and Dr. Watt. Dr. Morton was called to give evidence only at the appellant's second trial. He testified that on the basis of the data in the record, he could not come to any conclusion as regards the footprints found near McCart's body. For his part, when testifying at the appellant's first trial, Dr. Watt had said that the same data did not establish any link between the footprints and Trudel's shoes. Before Dr. Watt took the stand at the appellant's second trial, the Crown sought a ruling on a question it proposed to address to him in cross-examination. The question was whether Dr. Watt would change his opinion in light of the information that, since he initially testified in the accused's first trial, Trudel pleaded guilty to murdering McCart and thereby apparently admitted that the footprints were his. The Crown did not seek to confront Dr. Morton's evidence with the same cross-examination.

The trial judge ruled that he would allow the proposed question. The appellant then elected not to call Dr. Watt. On November 30, 1983, a jury returned a verdict of guilty of first degree murder against the appellant. On an appeal against this conviction, a unanimous Court of Appeal (Cory J.A., as he then was, Zuber and Grange JJ.A.) dismissed the appeal: see (1986), 1986 CanLII 4725 (ON CA), 29 C.C.C. (3d) 544. The appellant came before this Court by leave.

Issues

The issues which are before this Court are:

1. Did the Ontario Court of Appeal err in upholding the trial judge's ruling that Crown counsel was entitled to refer to the guilty plea entered by Trudel in the cross-examination of Dr. Watt?

2. Did the Ontario Court of Appeal err in holding that the charge of the trial judge with respect to planning and deliberation was adequate?

3. Was the verdict of first degree unreasonable and unsafe in light of all the circumstances?

4. Did the trial judge err in failing to adequately put forward the theory of the defence and the evidence relevant thereto?

As I do not agree with my colleague Lamer J.'s reasons regarding the first issue, it is necessary to consider all four issues.

Proposed Cross-Examination of Appellant's Expert

In the voir dire held on the admissibility of the proposed cross-examination, the appellant's counsel informed the Court that, since giving evidence in the first trial, Dr. Watt had in fact been made aware of Trudel's plea of guilty prior to the commencement of the second. Counsel further stated that Trudel's plea was "an important factor" upon which Dr. Watt's opinion would have been based:

HIS LORDSHIP: It [the question] may be prejudicial, but here you have two experts -- I don't know what they are going to say, but they are basing their opinion on certain criteria. Now, if they know -- well, let me put it this way. Certainly it's relevant to their opinion whether they did know whether Trudel did plead guilty. Isn't that an important factor, or one important factor upon which they based their opinion?

MR. KLUWAK: Yes, my Lord. And my friend has already asked them, informally, that question and he's been told that they were informed fully of the facts that have taken place in this case to this point. . . .

HIS LORDSHIP: . . . You say that Dr. Watt now knows that Trudel has pleaded guilty.

MR. KLUWAK: Yes.

In the Crown's submission, the proposed question is permissible on two grounds. First, the Crown contends that the purpose of the proposed question was not to adduce evidence relative to the appellant's guilt, but rather that it was exclusively intended to attack Dr. Watt's credibility in his capacity as expert witness. In the first trial, Dr. Watt had conceded in cross-examination that the "science" of footprint expertise was simply "an exercise in common sense". The Crown submitted that it was consequently open to it to ask the expert whether, "as a matter of his exercise in common sense", it would help or influence him to know that the person who was wearing the shoe pleaded guilty to murder. Crown counsel stated:

. . . since what we are dealing with, in Dr. Watt's own words, is a matter of common sense, I think the jury are entitled to hear that this expert, who regards this as a matter of common sense, does or doesn't think that the fact that Mr. Trudel has, since his last opinion, admitted to killing Mr. McCart is relevant to his opinion. I think that's very significant on the question of whether his opinion is to be accepted, whether he is a man of common sense, which is what he tells us is the important thing in this area.

Had Dr. Watt answered the proposed question in the negative and claimed that the plea of guilty was not material to his scientific opinion, then, according to the Crown, "that would [have been] the end of it".

Second, the Crown expresses concern that the unchallenged credibility of Dr. Watt could have misled the jury. In the circumstances of the case, in the Crown's contention, the administration of justice would have been impeded if the jury had been allowed to attach untested weight to a scientific opinion which in all likelihood was mistaken as to what really happened:

Further, in my submission, it is crucial that I be allowed to ask this question if the process is regarded at all and, in my submission, it is in part, at least, a search for the truth and a search for what actually happened. If two experts are allowed to get in the stand and say there is no way that print two inches from the head is Mr. Trudel's and at the same time this jury can never be made aware of the fact that Mr. Trudel has in effect admitted that he killed Mr. McCart in that field, then, in my submission, we come dangerously close to turning this whole process into a travesty.

The trial judge was favourably impressed by both submissions. Giving his decision to allow the Crown's question in cross-examination, the trial judge said:

In this case the Crown simply proposes to cross-examine to show that the basis for his opinion is or may not be sound, and not for the purpose of introducing prejudicial evidence.

In this respect, I find it significant that the Crown never sought to refer to Trudel's plea in the cross-examination of Dr. Morton. His opinion was not contrary to the apparent admission by Trudel that the footprints were his. Consequently, the credibility of Dr. Morton could not have been tested by his being confronted with the plea. The same can hardly be said, however, for the credibility of Dr. Watt.

During the voir dire, the trial judge had made some remarks indicating he thought it "may be a travesty of justice" for the Crown to be prevented to attack the basis of Dr. Watt's opinion in the circumstances. These remarks were reiterated in the reasons for his decision to allow the proposed cross-examination:

If called as a witness, Dr. Watt may say that this additional information put to him in cross-examination does not change his opinion; but in deciding what weight to attach to an opinion the jury is entitled to consider the basis for the opinion, and whether the expert has rejected relevant considerations before expressing the opinion. The Crown is in a position to prove the accuracy of the suggestions to be made to Dr. Watt if he is called. In my opinion, the Crown cannot be prevented from conducting cross-examination to show, or attempt to show, that the opinion of an expert is unsound, or that the witness has failed to consider relevant matters. It seems to me that if the Crown were to be restricted in cross-examination, as requested by Mr. Kluwak, it would bring the administration of justice into disrepute. [Emphasis added.]

The Court of Appeal upheld the trial judge's ruling. In delivering the reasons for the Court, Cory J.A. acknowledged the rule that evidence of a co-accused's plea of guilty is inadmissible to establish the other accused's guilt. Nevertheless, in Cory J.A.'s opinion, it was open to the Crown to use the same plea in cross-examination for the limited purpose of attacking the expert's credibility. Cory J.A. wrote at pp. 558-59:

It is true that the Crown could not put Trudel's plea of guilty in evidence as part of its case. Nor, as a general rule, can the Crown be permitted to do indirectly what it is prohibited from doing directly . . . .

Many factors will be taken into account by an expert in reaching his conclusions. It is appropriate and proper to cross-examine an expert as to those factors which he has considered and those which he has not. It would be difficult to imagine questions more pertinent than those which sought to ascertain whether the expert had taken into account the apparent admissions of Trudel that he was in the field with the victim and that the footprints near the body were his. These are questions that would go to determining whether the expert had considered all relevant aspects of the situation. More importantly, they would be pertinent to a consideration of the credibility of his evidence. If Dr. Watt had continued in the face of Trudel's guilty plea, as he had proposed, to declare that the footprint in the field could not have been Trudel's, his testimony might well have been considered suspect by the jury.

There is a little of Alice in Wonderland in the position of the appellant. He has put forward an expert to substantiate his defence that he was not at the scene of the murder, yet he objects to the cross-examination of that expert as to whether or not he has taken into account what to most laymen would appear to be a vitally important factor. [Emphasis added.]

These propositions of the trial judge and of the Court of Appeal find, in my view, firm support in the law.

It is commonplace that the judge presiding over a criminal trial held before a jury may assist the jury in its fact-finding mission. The judge determines which evidence as long as it is relevant can be put to the jury, having regard to the applicable legal rules of evidence. Once the evidence has been allowed, it is then incumbent upon the jury to attach weight or probative value to the various elements adduced at trial. The judge assists the jury by determining the extent to which the evidence can be confronted by the opposing party, which, in the case of testimonial evidence, often takes the form of cross-examination as to credibility.

In controlling cross-examination, the trial judge enjoys some measure of discretion. In my view there are no inflexible rules prescribing the exact scope of allowable cross-examination in each particular case. An undue restriction on cross-examination may prevent the jury from gauging all the elements relative to the weight of the allowable evidence. Conversely, an overly lenient allowance of cross-examination may distract the jury's focus from the questions of fact it must address. A delicate balance must be struck between the different interests at stake given that arriving at the truth remains a central premise of the administration of criminal justice. Such interests include, among others, the extent to which the credibility of witnesses may be impeached as against the possible risks of encroachment upon the fairness of the trial, including the accused person's right to present a full defence, and the degree of prejudice suffered by the accused.

The balance hinges in great part on the trial judge's assessment of the context of the case, the seriousness of the offence, the nature of the defence and the "atmosphere of the courtroom", that is, the demeanour of witnesses, conduct of counsel and ability of the jury to make a fair assessment of the weight of the evidence discussed or introduced at trial. The case of Bleta v. The Queen, 1964 CanLII 14 (SCC), [1964] S.C.R. 561, illustrates this discretion in the context of the admissibility of expert testimony. A psychiatrist had expressed his opinion as to the state of mind of an accused on the basis of evidence which he had heard at the accused's trial three months after the murder giving rise to the charge. In upholding the trial judge's decision to allow the psychiatrist's testimony to be put to the jury, this Court said at pp. 567-68:

As has been indicated, the decision as to whether a sufficient basis has been laid for the admission of an expert opinion rests in each case in the discretion of the trial judge, the exercise of which is dependant upon many factors, all of which may not be fully appreciated by a court of appeal which is confined to the printed record of the proceedings in its reconstruction of the atmosphere existing at the trial.

These comments apply equally in my view to appellate review of a trial judge's discretionary control of the scope of allowable cross-examination.

In the case of expert testimony, the proper control of cross-examination involves certain special considerations. Specifically, in giving evidence, expert witnesses benefit from a degree of freedom not enjoyed by ordinary witnesses. Experts are mainly called to give their opinion, which is a type of evidence inadmissible when offered by ordinary witnesses. An expert opinion may be based in whole or in part upon facts not otherwise admissible as evidence at trial. For instance, the opinion may be based on hearsay: "an expert opinion based on second-hand evidence is admissible, if relevant" (R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 R.C.S. 24, at p. 43, per Dickson J. (as he then was) for the Court). The underpinnings of an expert opinion are thus generally admissible as going to the expert's credibility. It does not follow, however, that when the expert discloses these underlying circumstances they are proven or must otherwise be taken as representing the truth. It is the duty of the trial judge to give directions to the jury on this point: "Once such testimony is admitted, a careful charge to the jury by the judge or direction to himself is essential" (R. v. Abbey, supra, at p. 44).

In R. v. Abbey, the accused was charged with importing cocaine into Canada and possession of cocaine for the purpose of trafficking. His sole defence was that he was insane at the material time, suffering from hypomania. He led evidence through a psychiatrist who testified as to various delusions, visions and hallucinations which the accused had experienced in the months preceding his arrest. Several incidents of bizarre conduct on the part of the accused were also recounted by the psychiatrist. The trial judge adopted as evidence of the truth of its content the hearsay evidence given by the psychiatrist in respect of the delusions, hallucinations and bizarre conduct of the accused. In concluding that it was an error for the trial judge to do so, Dickson J. wrote at p. 46:

It was appropriate for the doctors to state the basis for their opinions and in the course of doing so, to refer to what they were told not only by Abbey but by others, but it was error for the judge to accept as having been proved the facts upon which the doctors had relied in forming their opinions . . . . Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist. [Emphasis added.]

As noted in R. v. Abbey at p. 42, "the [expert] opinion more often than not will be based on second-hand evidence". The circumstances upon which an expert opinion is grounded almost inevitably involve hearsay and evidence otherwise not admissible at trial. If, as the reasons given by my colleague Lamer J. suggest, the cross-examination was to be limited to the facts which will "become part of the case as admissible evidence", then it would become all but impossible for the accused as well as the Crown to cross-examine expert witnesses as to the basis of their opinion. I do not believe that such an inflexible approach is warranted. The greater latitude allowed to an expert in examination-in-chief involves in my view a correlative latitude in cross-examination as to the basis of the expert's opinion.

In R. v. Nielsen and Stolar (1984), 1984 CanLII 40 (MB CA), 16 C.C.C. (3d) 39 (Man. C.A.), the accused were tried jointly on a charge of murder. Certain shoe marks were found at the scene of the crime. During a voir dire, the Crown sought to get permission to introduce opinion evidence from a footprint expert that these shoe marks connected Stolar to the scene of the crime. In delivering the majority decision, Huband J.A. discussed as follows the scope to which the expert could be examined and cross-examined (at p. 70):

In particular, Dr. Robbins was asked to express her view as to the physical characteristics of the person wearing a shoe which would leave the markings found at the murder scene. The learned trial judge concluded that this opinion evidence was conjectural rather than scientific, and he ruled such evidence should not go to the jury.

Counsel for the accused, Nielsen, then wished to cross-examine Dr. Robbins on this opinion evidence -- not for the purpose of implicating Stolar, but rather in an attempt to discredit the testimony of Dr. Robbins on this point, thereby reflecting adversely on her credibility in other areas. The learned trial judge ruled that the proposed cross-examination would not be allowed because it might be prejudicial to Stolar.

If this had been a trial involving the accused, Nielsen, alone, it would have been open to Nielsen's counsel to cross-examine Dr. Robbins in this area. But given the joint trial of the two accused, the learned trial judge made a reasonable ruling to forbid the proposed line of cross-examination. [Emphasis added.]

I refer to these words simply to illustrate that courts recognize a discretion in the trial judge to allow cross-examination of expert witnesses on some aspects which do not necessarily form part of the body of admissible evidence to be ultimately put to the jury.

In the present case, this latitude in the cross-examination of expert witnesses was also emphasized in the Court of Appeal (at p. 559):

He [Dr. Watt] was going to give an opinion based upon his scientific knowledge. His opinion would have been to the effect that the footprints in the field could not have been made by Trudel's shoe. It was thus open to the Crown and perhaps incumbent upon the Crown to cross-examine Dr. Watt as to the basis of his opinion. During the course of that cross-examination it would have been of great importance in assessing the weight of Dr. Watt's opinion to determine whether or not he had taken into account the apparent admission of Trudel that the footprints found in the field were indeed his. The ability to cross-examine a witness as to the basis for his opinion and the factors which he has taken into account and those which he has omitted can be relevant, pertinent and indeed vital to testing that opinion . . . . [Emphasis added.]

Wigmore has noted that cross-examination is "beyond any doubt the greatest legal engine ever invented for the discovery of truth" (5 Wigmore, Evidence no. 1367 [p. 32] (Chadbourn rev. 1974)). One cannot over-emphasize the commitment of courts of justice to the ascertainment of the truth. The just determination of guilt or innocence is a fundamental underpinning of the administration of criminal justice. The ends of the criminal process would be defeated if trials were allowed to proceed on assumptions divorced from reality. If a careless disregard for the truth prevailed in the courtrooms, the public trust in the judicial function, the law and the administration of justice would disappear. Though the law of criminal evidence often excludes relevant evidence to preserve the integrity of the judicial process, it is difficult to accept that courts should ever willingly proceed on the basis of untrue facts.

In allowing the proposed cross-examination in the case at bar, the trial judge did not ignore the conflict between, on the one hand, the prejudice caused to the accused by the mention of Trudel's guilty plea, and, on the other, the rule allowing the credibility of an expert witness to be tested on the basis of the expert's opinion. In exercising his discretion to determine the propriety of the question sought to be put to Dr. Watt, the trial judge gave in my view due heed to the interests of the accused and to those of the judicial process as well. He was not blind to the fact that Dr. Watt's evidence would not be put forward as a result of his ruling. He was aware that his ruling left the appellant with a single expert witness instead of the two he had expected to rely upon in support of his defence. But in his discretion the trial judge found that there would be no unduly prejudicial effect on the accused in the circumstances of this case. In the judge's assessment, if the evidence of Dr. Watt were put forward by the defence, it would be necessary to allow the jury to be in a position to attach the appropriate weight to his testimony. On the whole, I agree with this assessment and I am of the view that the trial judge committed no reversible error of law, having exercised his discretion judicially and judiciously.

Charge Respecting Planning and Deliberation

With respect to the second issue, the appellant makes a threefold submission. First, he submits that the trial judge erred in incorporating by reference, as evidence relevant to planning and deliberation on the part of the appellant, the judge's general review of the Crown's evidence, including evidence that the murder was intentional on the part of Trudel. Second, the appellant also contends that the trial judge erred in failing to point out to the jury that the facts were equally consistent with a planned and deliberate robbery as with a planned and deliberate murder. The error, in this view, lies in the possibility that there was a planned and deliberate robbery, but not a planned and deliberate murder. Third, the appellant argues that the trial judge failed to properly instruct the jury with respect to the significance of alcohol consumption in relation to planning and deliberation. Specifically, he contends that the trial judge should have instructed the jury to consider that the accused may have acted compulsively because of alcohol consumption.

The first submission is without merit. In this case, much of the evidence of planning and deliberation overlapped with the evidence of intent on the part of Trudel. Indeed, as noted by the trial judge in his charge:

You will remember my instructions on aiding or abetting. I have reviewed some of the evidence with you from which planning and deliberation may be inferred on the part of both Trudel and the accused, and I don't propose to repeat the events at the Brunswick Hotel, for example, and following.

Then there is evidence from which it can be inferred that the crime was committed seven miles or better from downtown London, depending upon the route that you follow, and it took place at the dead end of the Town Line Road, in a fairly secluded area.

It does not follow, however, that the trial judge is under a duty to repeat all the specific elements of evidence already outlined in connection with the instructions respecting aiding and abetting. The evidence could equally give rise to an inference that the accused planned and deliberated the murder with Trudel. For instance, the evidence adduced by the Crown tended to show that after taking a steel stake from a construction site near the Brunswick Hotel, the accused together with Trudel got into the taxicab driven by McCart. Such evidence is consistent with either a finding that the accused aided or abetted Trudel or that the accused planned and deliberated the murder with Trudel. As noted by Dickson C.J. in R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652, at p. 689:

Much of the Crown evidence was consistent with either Crown theory . . . . It is not incumbent on a trial judge to go through the evidence in a repetitive fashion which could only have bored the jury. Nor do I think we should assume jurors are so unintelligent that they will fail to see the obvious . . . . [Emphasis in original.]

Turning now to the second submission, like the Court of Appeal, I believe that, with respect to first degree murder, the charge makes it "clear that the planning and premeditation must relate to the intentional killing and not just to the robbery." The following portion of the charge illustrates this point very well:

For the purpose of this case, murder is first degree murder only if it is planned and deliberate. The Crown must satisfy you beyond a reasonable doubt both that the murder was planned and that it was deliberate on the part of both Trudel and the accused before it is first degree murder.

The Crown must satisfy you that the accused intended to aid or abet the commission of a planned and deliberate murder as distinct from having an intention to aid or abet only murder.

By way of summary, on first degree murder, before you can convict the accused of first degree murder, you must be satisfied beyond a reasonable doubt of the following:

2. That the accused and Trudel planned and deliberated to kill a taxi driver, which turned out to be McCart.

These instructions leave no room for any possibility that a reasonable jury could have found first degree murder on something less than planning and deliberation with respect to murder.

The third and final submission, regarding the significance of alcohol consumption in relation to planning and deliberation, is also without merit. In the trial judge's charge, the evidence of alcohol consumption was properly brought to the jury's attention:

I would like to deal now with the question of drunkenness. Evidence has been given that the accused and Trudel had consumed alcoholic beverages at the Brunswick Hotel commencing, I believe, at about 7:00 in the evening and continuing until the early hours of October 20th. There is not much direct evidence relating to Trudel's condition as a result of drinking. As to Howard, Henry, the witness, Henry, said that "Howard was in as good a shape as I was and appeared to be or was aware of what was going on".

The witness, Katool, was drinking as well, of course. He testified that the accused was drinking steadily but did not have any difficulty in understanding what was being said.

On October the 29th, Howard, the accused, gave a statement to O.P.P. officer, McCurdy, to the effect that he was intoxicated that night, and he also informed his parole officer that he was intoxicated. Howard testified on this point, said he was drinking all evening and was feeling good but he was able to control himself, and that in cross-examination he said that he was responsible for what he did and was aware of what was going on around him.

Later in his charge, the judge instructed the jury as to what degree of drunkenness was relevant in assessing planning and deliberation:

In considering whether the murder was planned and deliberate, you should consider all the circumstances, not only the actions of the accused and Trudel, but the question, again, of drunkenness. Planning and deliberation may be negatived [sic] by drunkenness that falls short of the incapacity to form the intent required to constitute murder on the part of both Trudel and [Howard]. That is, a lesser degree of drunkenness may negative [sic] planning and deliberation.

I am satisfied that these instructions were sound. On the evidence as summarized by the trial judge, there is no likelihood that any reasonable jury could have found that the state of drunkenness of the accused was such that he may have acted compulsively because of alcohol consumption. In pointing out to the jury that drunkenness falling short of the incapacity to form the intent to kill might negate planning and deliberation, the trial judge satisfied the main requirement defined by this Court in R. v. Mitchell, 1964 CanLII 42 (SCC), [1964] S.C.R. 471, at pp. 476-77. I fully concur with the findings of the Court of Appeal in this respect and would adopt as my own the following words of Cory J.A. (at pp. 557-58):

Certainly if the trial judge did instruct the jury that drunkenness may render the accused incapable of planning and deliberating then he must take the second step. He should continue and advise the jury that even if they are satisfied beyond a reasonable doubt that the accused was capable of the requisite planning and deliberation, the consumption of alcohol must still be taken into account as a relevant factor in determining whether or not the accused did, in fact, plan and deliberate the killing.

Where, as here, the evidence from the accused as well as other witnesses indicated that although he was "feeling good" he was in full control, there could not be any question that the consumption of alcohol rendered him incapable of planning and deliberation. It was therefore necessary to direct the jury only that the consumption of alcohol along with all the other surrounding circumstances was to be taken into account in determining whether or not the accused did in fact plan and deliberate upon the killing of the victim. It was also necessary for the trial judge to point out that a lesser degree of drunkenness than might be required to negative [sic] the intent to kill may negative [sic] planning and deliberation. The charge here complied with these requirements. The instructions set out earlier constituted a clear direction to the jury with regard to the effect the accused's alcohol consumption might have upon the aspect of planning and the deliberation of the killing. [Emphasis in the original.]

Reasonableness of the Verdict

This issue was not argued forcefully by the appellant in his pleadings before us. In allowing the appeal from the appellant's conviction of first degree murder in his first trial with Trudel, the Court of Appeal, in a judgment delivered by Howland C.J.O., dealt with an identical argument in the following way (R. v. Howard and Trudel (1983), 1983 CanLII 3507 (ON CA), 3 C.C.C. (3d) 399, at p. 405):

It was contended by counsel for Howard that the verdict of the jury was unreasonable and was not supported by the evidence. In my opinion, after reviewing all the evidence, it could not be said that the verdict was one that a properly instructed jury acting judicially could not reasonably have rendered. In reaching this conclusion I have particularly borne in mind the following facts:

(a) The appellants were admittedly together from the time when they left the Brunswick Hotel until after 5:00 a.m. in October 20, 1979.

(b) There was expert evidence which, if accepted, identified footprints where the body was found as those of Trudel.

(c) The appellants were seen counting and dividing money about 5:00 a.m. on October 20, 1979.

There, as here, it was incumbent upon the appellant to establish that the verdict is not "one that a properly instructed jury acting judicially, could reasonably have rendered" (R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185). In my view, having regard to the facts set out in the judgment of the Court of Appeal, the appellant has failed to discharge this burden.

Failure to Put the Theory of the Defence to the Jury

The theory of the defence was outlined at the outset of the charge to the jury:

I have stated the theory of the Crown. The theory or position of the defence is that he did not, and by inference neither did Trudel because Trudel was with him at all times, that he did not, nor did Trudel, participate in any way in the killing of McCart. That is, they were together at the Brunswick Hotel and thereafter. It is the position of the defence that they were together at all times at Lambeth or going from Lambeth to London. And, of course, I will deal with that more fully later.

Later in the charge, the trial judge stated once again the position of the defence:

Now it is the position or theory of the accused that he was somewhere else at the time this offence was committed and, therefore, it could not have been him that did it and that he did not participate in any way in the killing of McCart. It was what is called an alibi defence. I want to instruct you that there is no onus on the accused to establish this defence. Rather, the burden is on the Crown to prove to your satisfaction beyond a reasonable doubt that the accused was a party to the killing of McCart and that he committed the offence which is alleged, or one of the included offences. So, when I am discussing the defence of alibi, I want you to keep in mind that the accused is not required to come into this court and establish that defence. If, after a consideration of all the evidence you have a reasonable doubt whether or not the accused was a party to the killing of McCart, you must find him not guilty.

The trial judge then reviewed in great detail the evidence given by the accused. I am satisfied that the theory and evidence of the defence were adequately put to the jury.

Conclusion

In the result, I would dismiss the appeal.

Appeal allowed, L'HEUREUX-DUBÉ J. dissenting.

Solicitors for the appellant: Gowling & Henderson, Toronto.

Solicitor for the respondent: The Ministry of the Attorney General, Toronto.

[^1]: Le Dain J. took no part in the judgment.

[^2]: See Erratum [2004] 1 S.C.R. iv