R. v. Evans, [1993] 2 S.C.R. 629

Barry James Evans Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Evans

File No.: 22929.

Judgment rendered orally: 1993: March 22.

Reasons for judgment rendered: 1993: June 17.

Present: L'Heureux‑Dubé, Sopinka, Cory, Iacobucci and Major JJ.

on appeal from the court of appeal for british columbia

Trial ‑‑ Charge to jury ‑‑ Circumstantial evidence ‑‑ Proof beyond reasonable doubt ‑‑ Whether charge amounted to misdirection on issue of proof beyond reasonable doubt of constituent parts of charge.

Evidence ‑‑ Recall of witness ‑‑ Trial judge refusing to allow the Crown to recall witness to give evidence as to having given name of the accused to the police as matching the police profile of suspect ‑‑ Attempt to recall witness made in response to issue of credibility arising out of cross‑examination ‑‑ Whether or not trial judge erred in refusing to allow Crown to recall witness.

Criminal law ‑‑ New trial ‑‑ New trial warranted only if verdict would have necessarily not have been the same, but for the errors -- Whether new trial warranted ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(4).

Appellant was acquitted of first degree murder. The Crown appealed and the British Columbia Court of Appeal directed a new trial. An appeal to this Court followed. Given that the scheduled date for the new trial was imminent, that no new issues of law were raised here, and that the disposition turned upon the facts of the case and the proceedings at trial, the Court allowed the appeal, set aside the order of the Court of Appeal directing a new trial and restored the acquittal with reasons to follow.

The victim was killed by a gun owned by appellant. Appellant contended that he had flown from Calgary to Vancouver the day the victim was murdered to show the victim's wife, Linda Sample, how to shoot. When she refused to take the afternoon off, he left the gun in her glove compartment and took a cab to visit the victim and from there he walked to the airport for the return flight to Calgary. Appellant and Linda Sample had had some form of relationship which had created tensions in the long friendship between the victim and appellant but these tensions seemed to have been resolved before the murder. Linda Sample testified that she had not seen appellant the day of the murder, that she had been at work and that she had been swimming during her lunch hour.

Three issues were considered here. Did the charge to the jury amount to a misdirection on the issue of proof beyond a reasonable doubt? Did the trial judge err in refusing to allow the Crown to recall Linda Sample to give evidence as to having given the name of the accused to the police as matching the police profile of the suspect, notwithstanding the fact that the issue of her credibility had arisen in cross‑examination? If a misdirection occurred or if the trial judge erred in refusing to recall Linda Sample, would a new trial have been warranted because the verdict would not necessarily have been the same given the errors.

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

Per Sopinka, Cory, Iacobucci and Major JJ.: The charge to the jury was eminently fair and no error was committed in the instructions relating to the manner in which the evidence was to be considered when the charge is looked at as a whole. The jury was instructed to consider the evidence as a whole and not in piecemeal fashion. Indeed in dealing with the circumstantial evidence, the trial judge instructed the jury to consider that evidence in the context of the Crown and defence theories and in relation to the evidence as a whole. The jury was never invited to apply the criminal standard to isolated pieces of evidence or to reach their decision through some sort of two‑step process.

The trial judge erred in refusing to allow the Crown to re‑examine Linda Sample as to whether she had named appellant as a person matching the police profile of the killer. This evidence was admissible as supporting the credibility of Linda Sample on the grounds that she would never disclose the name of the person from whom she got the gun when that would inevitably direct police attention back to her. It was not hearsay: the Crown sought to elicit from a witness evidence not about what was said to her but what she said to the police on an earlier occasion. Generally, the narration by a witness of his or her previous declarations made to others outside of the court should be excluded because of its general lack of probative value and because such a repetition is, as a rule, self‑serving. However, they may be admitted in support of the credibility of a witness in situations where that witness's evidence is challenged as being a recent fabrication or contrivance. The right to re‑examine is confined to matters arising from the cross‑examination.

The Crown, to obtain a new trial, must satisfy the court that the verdict would not necessarily have been the same if the trial judge had properly directed the jury. Appellate courts have always had a healthy respect for and exercised deference to a jury verdict of acquittal. The error on the question of re‑examination did not, in any real way, deprive the jury of decisive evidence. The trial judge's error could not have affected the outcome of the trial.

Per L'Heureux‑Dubé J. (dissenting): A new trial was warranted for the reasons given by the Court of Appeal.

Cases Cited

By Cory J.

Referred to: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345; R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 38 C.C.C. (2d) 6; R. v. Béland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398; R. v. Simpson, [1988] 1 S.C.R. 312; R. v. Moore (1984), 1984 CanLII 3542 (ON CA), 15 C.C.C. (3d) 541; Vézeau v. The Queen, 1976 CanLII 7 (SCC), [1977] 2 S.C.R. 277; R. v. Kirkness, 1990 CanLII 57 (SCC), [1990] 3 S.C.R. 74.

Statutes and Regulations Cited

Crimes Act (N.Z.), R.S. 1961, no. 43, ss. 380, 381, 382(2)(e) as amended by S.N.Z. 1991, no. 106, s. 11.

Criminal Code, R.S.C., 1985, c. C‑46, s. 686(4).

Criminal Code Act, 1924 (Tasmania), R.S. Tas. 1826-1959, vol. 1, ss. 401(2)(b) and 402(5)(b), as amended by Criminal Code Amendment Act, 1975, S. Tas. 1975, no. 74, s. 12, and Criminal Code Amendment Act, 1987, S. Tas. 1987, no. 83, s. 8.

Authors Cited

Archbold, John Frederick. Pleading, Evidence and Practice in Criminal Cases, vol. 1, 43rd ed. By Stephen Mitchell, P. J. Richardson, eds. and D. A. Thomas, sentencing ed. London: Sweet & Maxwell, 1988.

Bishop, John. Criminal Procedure. Sydney: Butterworths, 1983.

Ewaschuk, E. G. Criminal Pleadings & Practice in Canada, 2nd ed. Aurora, Ont.: Canada Law Book, 1987.

Wharton, Francis. Wharton's Criminal Procedure, 13th ed. By Charles E. Torcia. Rochester, N.Y.: Lawyers Co‑operative Pub. Co., 1989.

APPEAL from a judgment of the British Columbia Court of Appeal (1992), 1992 CanLII 741 (BC CA), 70 C.C.C. (3d) 489, 22 W.A.C. 225, allowing an appeal and ordering a new trial from an acquittal by Anderson J. sitting with jury. Appeal allowed, L'Heureux‑Dubé J. dissenting.

Noel C. O'Brien, for the appellant.

William F. Ehrcke, for the respondent.

//L'Heureux-Dubé J.//

The following are the reasons delivered by

L'Heureux-Dubé J. (dissenting) -- I have taken cognizance of the majority opinion and, with respect, I disagree as to their reasons as well as the results they reach.

I entirely agree with the Court of Appeal of British Columbia (1992), 70 C.C.C. (2d) 489, that a new trial is warranted in this case for the reasons expressed by McEachern C.J.B.C. writing for a unanimous court (Wood and Hinds JJA. concurring).

Accordingly, I would dismiss the appeal.

//Cory J.//

The judgment of Sopinka, Cory, Iacobucci and Major JJ. was delivered by

Cory J. -- The appellant Barry Evans was charged with first degree murder. After a three week trial, he was acquitted. The Crown appealed and the British Columbia Court of Appeal directed a new trial. An appeal to this Court followed. During oral argument, the Court was advised that the scheduled date for the new trial was imminent. No new issues of law were raised on this appeal. The disposition turns upon the facts of the case and the proceedings at trial. As a result, at the conclusion of oral submissions, the Court, with L'Heureux-Dubé J. dissenting, allowed the appeal, set aside the order of the Court of Appeal directing a new trial and restored the acquittal with reasons to follow.

Factual Background

So much turns on the facts that they must be set out at some length. For many years, Barry Evans had been a friend of the deceased Rick Sample. They had similar interests, worked together in a company and indeed lived together for some time. About a year and a half prior to the murder of Rick Sample, their friendship had suffered as a result of a relationship which had developed between Rick Sample's wife Linda and Barry Evans. The evidence is confused as to the nature of the relationship between Linda Sample and the appellant. There can be no doubt there was a mutual attraction. The relationship continued from 1987 until the death of Rick Sample.

There was an attempt to resolve the differences caused by this association at a meeting in November 1988. However, tensions rose again a year later. The appellant sent Linda Sample a birthday gift of stuffed animals that Rick Sample judged inappropriate. That December, a few weeks before the homicide, during a ski trip with Rick Sample and some mutual friends, Linda Sample and the appellant, in the back seat of a car, simulated a stroking of each other. At trial, Linda Sample admitted she lied at the preliminary about whether she told her husband about this incident. After the trip, Linda Sample asked for a letter from Evans stating that he loved her. However, in the days prior to the death of Mr. Sample, things seemed to have returned to normal as the appellant sent both Rick and Linda Sample Christmas gifts. By the fall of 1989, Barry Evans was interested in another young woman and Linda Sample was aware of this.

The Crown tendered some evidence which was intended to demonstrate that the appellant wanted to play the role of an assassin and was developing a computer game with this theme. Linda Sample testified that he had said that contracting for a hit man to eliminate rivals at work could be considered an investment in one's future. However, numerous witnesses testified that he was generally known as a gentle, considerate, non-violent person with a sense of humour, an even temperament and one who avoided confrontations.

In the fall of 1989, Evans purchased a second-hand .22 calibre pistol and asked the previous owner how to transport it to Vancouver as he was thinking of moving out there. He joined the Firing Line Gun Club in Calgary where he lived. He applied for and obtained a permit for the gun. The appellant testified that on October 27, he called Linda Sample and told her that he had been to a local gun club. In the course of a telephone call to Linda Sample on December 1, he informed her that he had purchased a gun and, during another call on December 17, he said that he had been at the gun club again.

On December 26, 1989, there was a long conversation between Barry Evans and Linda Sample. The appellant testified that it was during the course of this conversation that Linda Sample suggested in a joking way that he bring the gun to Vancouver so that she could learn to shoot it. Linda Sample testified that this topic had not been discussed and that she had made no such request.

While she had indicated that she did have an interest in shooting a gun, Linda Sample testified that she was unsure about whether Barry Evans owned a gun. She assumed that he was using a club gun. She did not mention the appellant's new hobby during her brief interview with the police on the day of the murder, December 28. But, at the end of the interview of December 30, she did tell them that Evans had joined a gun club. After that interview, Corporal Doige, an investigating R.C.M.P. officer, also noted that Linda Sample thought the appellant might have a gun. However, under cross-examination at trial, he admitted that this might be "a mental note" rather than anything Linda Sample had actually told him. Indeed, on January 3 in a third interview, when asked when she found out the appellant had a gun, she responded that she did not know he had a gun, only that he had joined a gun club.

A friend of Linda Sample who lived in Calgary gave evidence that she saw Evans in Calgary on December 27. She said that he appeared to be in a good mood and there was nothing abnormal about his behaviour. Similarly, Jeannie Tam, the wife of Linda Sample's employer, saw Linda Sample at work the day of the murder and found her to be her "usual self".

On December 28 the appellant took his gun and some ammunition out to the airport. There, he purchased a ticket to Vancouver using the name of Jones. He explained that he used a false name in case there was trouble with the gun which he was illegally transporting as luggage. The flight from Calgary brought him into Vancouver at 10:25 a.m. local time.

He testified that he met Linda Sample at the information booth at Simon Fraser University at noon. Linda Sample told him that she had changed her mind about going shooting and that she was going back to work. Evans was upset that she had brought him all the way out to Vancouver and then refused to take the afternoon off work. After showing her how to operate his gun, he left it in the glove compartment of her car. Evans said they made some tentative arrangements to meet at a restaurant on Granville Island. Linda Sample, in her testimony, denied meeting Evans on that date, receiving the gun from him, or being involved in the death of her husband.

Evans stated that when he left Linda he went to the Sample home by taxi to talk to Rick Sample. They had an argument about the appellant's relationship with Linda Sample. He left the house around 2:30 p.m. He walked to the airport and arrived around 3:30 p.m. or 3:45 p.m. The airline records show that he purchased a ticket at 4:23 p.m. on the 6:00 o'clock flight to Calgary. He paid cash and used the name of Wilson. He made two calls to friends in Calgary before flight time. In the first call, he left the impression that he was in Calgary. In the second, he left a message stating he was in Calgary. Upon his return, the appellant told friends that he had been in Calgary all day and had not been able to meet with them as planned because of a misunderstanding. At trial, he explained that he was embarrassed about having gone out to Vancouver for nothing and that he lied to his friends for social reasons.

The police said that it was possible to walk the 10 kilometres from the Sample home to the airport in 72 minutes by cutting across a field. It was of course impossible for the appellant, who does not drive, to have rented a car because he would have been required to produce a valid driver's licence. Just as there is no record of a taxi taking the appellant to the Sample residence from the university, there is no record of a cab company's picking up a passenger at or near the Sample home and going to the airport. The appellant testified that he could run a 10 kilometre race in 40 to 45 minutes but that he was dressed for work and not for running that day and was carrying a bag.

On December 28 the day of the murder, Linda Sample drove to work arriving around 7:30 a.m. She testified that she later went to the Burnaby aquatic centre where she swam for thirty to forty-five minutes, had lunch and then returned to work. A wet towel was later found in her car. Jeannie Tam stated that Sample was away from the office from 12:30 to 1:30 p.m. Linda Sample stated that she left work about 4:30 p.m. and Ms. Tam heard her leave at that time. She drove directly to her home and arrived around 5:00 p.m. She said traffic was light that day and she might have arrived 10 minutes earlier than that. When she came into the house, she found her husband lying on the floor. She dialled 911 for an ambulance and attempted to administer mouth to mouth resuscitation.

Rick Sample had been shot three times, once in the head and twice in the chest. Although the murder weapon was never found, the shell casings at the scene indicated that the appellant's gun had been used to kill Sample. Expert evidence indicated that death occurred sometime between 12:30 p.m. and 4:30 p.m.

There can be no doubt that Rick Sample was alive at least until 3:30 p.m. Gail Ross, an employee of the University of British Columbia, said that she telephoned and spoke to him between 3:30 p.m. and 4:00 p.m., but closer to 4:00 p.m. as she was preparing to leave work when she called. She said they had a 10 minute conversation about a computer problem that she was experiencing. She said that there was nothing from the telephone conversation to indicate that there was anything wrong with him at that time. Irene Sample, the sister of Rick Sample, testified that she attempted to telephone her brother between 3:30 p.m. and 3:45 p.m. She said she did not receive a busy signal but the telephone was not answered. It is worthy of note that even if the phone calls were made at the earlier time of 3:30 p.m., it might raise at least a reasonable doubt that Evans could have killed Sample, walked to the airport and purchased a ticket by 4:23 p.m. even without allowing any time for lineups.

The appellant initially lied to police about his whereabouts on the day of the murder, saying he was in Calgary. He testified that he lied at that time because he was afraid that Linda Sample had used the gun he had left with her to shoot her husband. After he had been arrested in Calgary, he made a series of statements to police during the flight to Vancouver, that could be read as either incriminatory or as simply expressing regret that Rick Sample had been killed. He later told the police that the murder weapon, which was never recovered, was in a place where it would not hurt anybody. At trial, he explained that at the time he was thinking that Linda Sample either still had the gun or had disposed of it safely.

In any event, after three weeks of trial and hearing 38 witnesses, the jury acquitted Evans.

The Court of Appeal for British Columbia (1992), 1992 CanLII 741 (BC CA), 70 C.C.C. (3d) 489

The Court of Appeal found that the trial judge erred in failing to allow the Crown to re-examine Linda Sample. The Crown wanted to show that she had volunteered the name of the appellant as someone who matched the profile that the police had drawn of the killer of her husband. Since Linda Sample could only have obtained the murder weapon from the appellant, it would be absurd for her to put the police on a lead that would inevitably direct them back to her. Her answer would have supported her credibility in front of the jury. On the same issue, the court found that Corporal Doige's testimony that the appellant's name "came up" during his conversation with Linda Sample, was not sufficient to remedy the ruling prohibiting her re-examination.

The court then considered whether the Crown had met the burden of demonstrating that the verdict would not necessarily have been the same but for this error. At one point, the court indicated at p. 502 that the Crown's case was "very strong . . . almost an unanswerable one", at another point it referred to the case as being "closely balanced". The latter evaluation appears to be the more accurate assessment. In any event, it held that the jury was presented with a choice between the conflicting testimony of the accused and of Linda Sample. Any additional evidence which would furnish a reason why one of them should more likely be believed than the other became highly material.

The Court of Appeal also took issue with one aspect of the charge which dealt with the assessment of circumstantial evidence. It was found that this portion of the charge invited the jury to apply the test of reasonable doubt not only to the essential ingredients or elements of the defence but also to every subsidiary fact. Nonetheless, the court went on to mention that if this was the only error, it was not sufficiently serious to warrant the granting of a new trial. However, when it was considered together with the failure to permit the re-examination of Linda Sample, it constituted a basis for ordering a new trial.

Points in Issue

There are three matters to be considered. First, did the trial judge's instructions to the jury amount to a misdirection on the issue of proof beyond a reasonable doubt? Second, should the trial judge have permitted the Crown to re-examine Linda Sample as to whether she gave the name of the appellant to the police as a person matching the police profile of the killer? Three, if an error was made in either of the above matters, would the verdict have necessarily not been the same, but for the errors.

Analysis

1. The Charge as to Reasonable Doubt

The Crown raised for the first time in the Court of Appeal an objection to the trial judge's charge relating to circumstantial evidence. That portion of the charge reads as follows:

When you are considering direct evidence or circumstantial evidence, you must bear in mind the onus of the Crown to satisfy you beyond a reasonable doubt. In dealing with direct evidence as to facts, you must be satisfied that those facts have been so established. And in dealing with circumstantial evidence you must be satisfied not only that the facts have been established, but also satisfied beyond a reasonable doubt that any inference that you draw from them is a proper one. [Emphasis added.]

At the outset, its worth repeating that a jury charge should not be microscopically examined and parsed. There is no such thing as a perfect jury charge. Rather, the directions to the jury must be looked at as a whole to determine if there has been any error. See, for example, R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 758.

When read as a whole, it can be seen that the charge is eminently fair. Although it is not determinative, it is significant that the Crown made no objection at trial to this aspect of the charge. Indeed, as the Court of Appeal observed it is doubtful that this direction, if it stood alone, would justify the granting of a new trial.

A review of the directions makes it crystal clear that the jury was instructed to consider the evidence as a whole and not in piecemeal fashion. Indeed in dealing with the circumstantial evidence, it is significant that the trial judge instructed the jury to consider that evidence in the context of the Crown and defence theories and in relation to the evidence as a whole. The following are examples of the instructions to the jury which were eminently sound and correct in dealing with the evidence:

(a)"During your deliberations it will be your responsibility to consider the whole of the evidence. You do not consider the evidence piecemeal, you consider it as a whole package."

(b) "And as in every other matter in the trial, it will be for you to determine what weight, if any, you are prepared to give to the evidence in view of all of the circumstances that you have heard and the evidence which has been placed before you."

(c) "Now, it will be up to you to assess the evidence that he has given. You will have to take that evidence as a whole and as part of the evidence that you heard."

(d)"All of his conversation is before you and you will have to consider his words in that conversation and his explanation in light of the whole of the conversation and in the light of the whole of the evidence."

(e) "Now, the Crown further says that you should consider the statements of the accused in a taped interview of December 30^th and the statements to the police officers on January 18^th after he had been arrested and charged with first degree murder in conjunction with all of the evidence before you."

(f) "On all of the evidence the Crown submits that there should be no doubt in your mind that the accused did kill Rick Sample . . . ." [Emphasis added.]

These instructions meet the test laid down in R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 361, where Sopinka J. wrote:

. . . the law lays down only one basic requirement: during the process of deliberation the jury or other trier of fact must consider the evidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt.

And further at p. 362:

The jury should be told that the facts are not to be examined separately and in isolation with reference to the criminal standard.

It is evident that the trial judge followed these directions. The jury was never invited to apply the criminal standard to isolated pieces of evidence or to reach their decision through some sort of two-step process. The nature of the trial itself indicates the relative unimportance of this aspect of the charge. In this case the accused testified. It was admitted that it was his gun that killed Rick Sample. Further, he admitted the statements he gave to the police. In essence, this case turned upon the credibility of the witnesses Linda Sample and Barry Evans.

In sum, when the jury charge is looked at as a whole, it can be seen that there was no error committed in the instructions relating to the manner in which the evidence was to be considered. This cannot be a ground for ordering a new trial.

2. The Ruling of the Trial Judge Prohibiting the Crown from Re-examining Linda Sample

The trial judge refused to permit the Crown to re-examine Linda Sample as to whether she named, during an interview on December 30, the appellant as a person matching the police profile of the killer. On this issue, it was the appellant's position that the judge's ruling on the question the Crown wished to put to Linda Sample was no more than a discretionary decision to refuse to permit re-examination. The Crown on the other hand, argued that it constituted an erroneous ruling on the admissibility of the evidence.

Admissibility of her Statements to Police

In my view, this evidence, which the Crown attempted to introduce in re-examination, was admissible. The Crown sought to use this testimony to support the credibility of Linda Sample on the grounds that she would never disclose the name of the person from whom she got the gun when that would inevitably direct police attention back to her.

Linda Sample's testimony on this aspect of the case would not be hearsay. Hearsay generally involves the repetition by a witness at trial of an earlier declaration by someone who is not a witness. The statement is thus relayed indirectly to the trier of fact. But here, the Crown sought to elicit from a witness evidence not about what was said to her but what she said to the police on an earlier occasion.

Ordinarily, other persons may not be called to testify as to a witness's out of court statements. Nor may a witness repeat, in court, her own earlier statements. Generally, the narration by a witness of her previous declarations made to others outside of the court should be excluded because of its general lack of probative value and because such a repetition is, as a rule, self-serving. However, they may be admitted in support of the credibility of a witness in situations where that witness's evidence is challenged as being a recent fabrication or contrivance. See R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 38 C.C.C. (2d) 6 (Ont. C.A.), at p. 18, per Martin J.A., and R. v. Béland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398, at p. 409.

Further, it has been held that there need not be, in cross-examination, any express allegation of recent fabrication for the prior statements to be admissible. It is sufficient if, in light of the circumstances of the case and the conduct of the trial, the apparent position of the opposing party is that there has been a prior contrivance. In those situations, fairness and ordinary common sense require that the jury receive a balanced picture of the whole of the witness's conduct throughout the police investigation. To demonstrate that the evidence of the witness is not a recent fabrication it may be essential to introduce on re-examination a prior statement which shows the consistency of the witness' testimony. See R. v. Simpson, 1988 CanLII 89 (SCC), [1988] 1 S.C.R. 3, at p. 25.

In this case, it was apparent that it was the position of the defence that Linda Sample had killed her husband and was attempting to blame the appellant for the murder. The nature of the cross-examination involved an attack on the truth of her testimony and of her statements given to the police. In those circumstances, the prior consistent statement made by Linda Sample to the police was admissible.

Should the Question Have Been Permitted on Re-examination

Even though it has been determined that the evidence was admissible, it remains to be seen whether the question should have been permitted on re-examination.

The issue is put very well by E. G. Ewaschuk in Criminal Pleadings & Practice in Canada, 2nd ed., in these words at p. 16.29, para. 16:2510:

Questions permitted as of right on re-examination must relate to matters arising out of the cross-examination which deal with new matters, or with matters raised in examination-in-chief which require explanation as to questions put and answers given in cross-examination. [Emphasis added.]

Generally speaking, the right to re-examine must be confined to matters arising from the cross-examination. As a general rule new facts cannot be introduced in re-examination. See R. v. Moore (1984), 1984 CanLII 3542 (ON CA), 15 C.C.C. (3d) 541 (Ont. C.A.), per Martin J.A. In this case, the cross-examination of Linda Sample referred to her statements to police about the appellant. The police interview of December 30 was specifically alluded to during the cross-examination and had not been dealt with in-chief. It was in response to this cross examination that Linda Sample stated that, from the time of that meeting, she suspected the appellant of committing the crime. It would seem that the Crown had the right to re-examine Linda Sample as to precisely what she told the police at that time with regard to the appellant. It was a subject that had not been raised in the examination in chief but arose from the cross-examination. The trial judge erred in failing to allow re-examination on this point.

3. Has the Crown Established that the Verdict Would not Necessarily Have Been the Same if the Trial Judge Had Properly Directed the Jury?

In Vézeau v. The Queen, 1976 CanLII 7 (SCC), [1977] 2 S.C.R. 277, the basis upon which a Crown can appeal an acquittal pursuant to s. 686(4) of the Criminal Code, R.S.C., 1985, c. C-46, was set out. There is was stated at p. 292, that "it was the duty of the Crown, in order to obtain a new trial, to satisfy the Court that the verdict would not necessarily have been the same if the trial judge had properly directed the jury." This test was re-affirmed in R. v. Morin, supra, at p. 374. There, it was emphasized that the onus resting upon the Crown was a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty that the verdict would not necessarily have been the same. This is a very heavy onus and it is fitting that it should be.

In setting the standard for reversal, it is worth observing that, among the major English-speaking common-law jurisdictions, Canada appears to possess the most liberal provisions for Crown appeals. In some jurisdictions, particularly in the United States, the prosecution is limited to interlocutory appeals from unfavourable rulings made before a verdict is reached. Other jurisdictions permit prosecution appeals in limited circumstances such as where the information is quashed; where the trial is held to be a nullity or where a directed verdict of acquittal is entered. See Wharton's Criminal Procedure, 13th ed., vol. 4, at pp. 836-38; J. B. Bishop, Criminal Procedure (1983), at pp. 294-95; Archbold, Pleading, Evidence and Practice in Criminal Cases, 43rd ed., vol. 1, § 7-132 to § 7-137, at pp. 1042-47. It is only Canada, New Zealand (Crimes Act, R.S.N.Z. 1961, vol. 1, no. 43, ss. 380, 381, 382(2)(e) as amended by S.N.Z. 1991, no. 106, s. 11) and Tasmania (Criminal Code Act, 1924, R.S. Tas. 1826-1959, vol. 1, ss. 401(2)(b) and 402(5)(b) as amended by Criminal Code Amendment Act, 1975, S. Tas. 1975, no. 74, s. 12, and Criminal Code Amendment Act, 1987, S. Tas. 1987, no. 83, s. 8) that permit full Crown appeals after verdicts of acquittal have been rendered on the merits. Of these, only Canada and Tasmania permit the Court of Appeal to substitute a conviction for an acquittal at trial, though in Canada this substitution is not possible after a jury verdict because of s. 686(4)(b)(ii) of the Criminal Code. Finally, only Canada permits Crown appeals, on questions of law, as of right without having to first seek leave or reserve a question of law.

Among appellate courts there has always been a great deal of healthy respect for and deference to a jury verdict of acquittal. This deferential approach is appropriate and correct. The special significance of a verdict of acquittal by a jury has also been recognized by this Court in R. v. Kirkness, 1990 CanLII 57 (SCC), [1990] 3 S.C.R. 74. There on behalf of the majority it was said at p. 83:

The verdict of the jury constitutes, in a very real way, the verdict of the community. Trial by jury in criminal cases is a process that functions exceedingly well and constitutes a fundamentally important aspect of our democratic society. It is not members of the judiciary, but rather the members of the jury, sitting as members of the community, who make decision as to guilt or innocence which is so vitally important both to the individual accused and the community.

It follows that only if there was a significant error made by the trial judge in the course of the charge should the verdict of acquittal be set aside. [Emphasis added.]

It is against this background that the evidence given at the trial of Barry Evans should be considered. In my view the error of the trial judge could not have affected the outcome of the trial. First and foremost, it must be remembered that the very evidence which the Crown sought to introduce through Linda Sample on re-examination was brought before the jury in the testimony of Corporal Doige. In response to Crown questioning as to why he interviewed Linda Sample, the following testimony was elicited from him:

Q. And what was the purpose in your going in, sir, or did you have several, I suppose?

A. I had one in particular. I had formed in my mind the type of person that I would be looking for, and I wanted to present the situation to her so that she could possibly attach a name to the type of person that I was looking for. And that was the main purpose for me taking her to the residence, and I went through the process of showing her exactly what I believed took place and what was taking place before the incident happened, and I had a discussion about much of their lifestyle at that time.

Q. All right. So other than the scenario you were presenting to her, you are also, I take it, extracting further details as best you could to again assist your general knowledge; is that fair?

A. That is right.

Q. Now, ultimately in the course of your discussion with her it's correct to say that the name Barry Evans came up; is that correct?

A. Yes it did. [Emphasis added.]

In this context, the most logical and easiest inference for the jury to draw was that Linda Sample volunteered the appellant's name.

As well, the evidence of Linda Sample in cross-examination referred to her discussions with Corporal Doige. There she stated that, as a result of those discussions, Barry Evans became a suspect in her mind. Thus, once again, the very sort of evidence that the Crown sought to introduce through the proposed re-examination of Linda Sample came out in her cross-examination.

Further, in light of Corporal Doige's testimony, it is clear that Linda Sample would not give as cogent evidence as the Court of Appeal speculated that she would. It is apparent that she did not volunteer the name of Barry Evans as a suspect. In her statement to the police, she said no more than that he would fit the pattern or profile created by Corporal Doige of the murderer. In substance, this very evidence was already before the jury through the testimony of Corporal Doige.

The error on the question of re-examination did not, in any real way, deprive the jury of decisive evidence. It is thus apparent that the Crown has not met the heavy onus which lies upon it to establish that the verdict would not necessarily have been the same.

Disposition

In the result the appeal is allowed, the order of the Court of Appeal directing a new trial is set aside and the verdict of acquittal restored.

Appeal allowed, L'Heureux‑Dubé J. dissenting.

Solicitors for the appellant: O'Brien, Devlin, Markey, MacLeod, Calgary.

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