A. OVERVIEW

[1] The two accused, Dellen Millard and Mark Smich (hereinafter, Millard and Smich) were tried on an Indictment charging them with the first degree murder of Laura Babcock. Pre-trial Motions began in late March 2017 and concluded in early October 2017. Jury selection commenced on October 12, 2017, the Crown opened to the jury on October 23, 2017, evidence was called for six weeks, and on December 5 and 6, 2017 the parties made their closing addresses. I charged the jury for three and a half days and on December 12, 2017 the jury began deliberating. On December 16, 2017 the jury returned verdicts of guilty of first degree murder against both accused.

[2] On the third day of my Charge to the jury, December 11, 2017, Millard filed two Motions in writing. The Motions sought two significant new instructions to the jury. I had circulated drafts of my Charge to the Jury, both prior to the parties’ closing addresses (on the evening of December 1, 2017) and at various intervals while the Charge was being delivered (between December 6 and 12, 2017).

[3] In brief summary, the jury instructions sought by Millard in the two Motions concern the following: first, an instruction to disregard certain evidence given by the Crown witness Matthew Ward-Jackson (hereinafter, Ward-Jackson) to the effect that Millard had shown some interest in firearms prior to his purchase of a .32 calibre revolver on July 2, 2012; and second, an instruction that the jury should consider the Crown’s failure to call Christina Noudga, Millard’s girlfriend at the time of the alleged murder, as one of the “gaps in evidence” in the case which were said to provide a basis for reasonable doubt. Counsel for the co-accused Smich did not join in the first Motion but did join in the second Motion.

[4] I heard oral argument on the two Motions on December 12, 2017, at the end of the Charge to the Jury. I treated the two Motions as a submission requesting further instructions to the jury in the nature of a Re-Charge. At the end of submissions from all three parties I dismissed both Motions and held that I would not instruct the jury in the manner requested. I indicated that my Reasons for dismissing the two Motions would be released as soon as they were written. These are my Reasons for dismissing the two Motions.

[5] I should note that Millard has represented himself throughout the trial, with logistical assistance from a young lawyer named Rebecca Sherman. However, Millard was represented by counsel on most of the pre-trial Motions and he repeatedly stated during the trial that he was seeking advice from counsel at various times when we were not in court and when he needed counsel’s assistance. It is apparent that the second Motion (concerning Ms. Noudga) was drafted by a lawyer as there is considerable analysis and discussion of the relevant case law. Millard argued both Motions on his own behalf.

B. FACTS

(i) The first Motion: an instruction to disregard certain evidence of Ward-Jackson

[6] The facts relating to the Motion concerning the witness Ward-Jackson arose late in the trial, on November 22 and 23, 2017, when he testified as one of the last witnesses called by the Crown and prior to the defence case. Ward-Jackson’s evidence concerned a gun trafficking transaction between himself (as vendor) and Millard (as purchaser) on July 2, 2013. The murder was alleged to have taken place the next day, on the night of July 3/4, 2012.

[7] The Crown proved the gun sale transaction to a certain extent through text messages which had been forensically extracted by the police from a “back-up” of Millard’s iPhone. The “back-up” was stored on Millard’s desk-top computer at his home. The text messages showed that Millard was interested in contacting Ward-Jackson in late January and early February of 2012. Millard asked Smich, who knew Ward-Jackson, to arrange a phone call or a meeting because “I want to talk about tools”. According to Sgt. Jansz’ expert evidence about street slang and codified language, the word “tools” means firearms. Further text messages between June 30 and July 3, 2012, together with cell tower evidence, inferred that Ward-Jackson sold a .32 calibre revolver to Millard on July 2, 2012. The key text message on July 1, 2012 described the subject matter of their discussions as, “.32… a really nice nice compact piece… been prohibited for 30 yrs”. A further text message on July 3, 2012 referred to the fact that “it says ‘32 long’ on the side of it”. This latter message was sent in the course of a discussion about “domes”. Sgt. Jansz testified that the word “domes” means ammunition.

[8] Ward-Jackson’s testimony resolved any ambiguity about the meaning of the above text messages. He acknowledged that he sold a .32 calibre Smith and Wesson revolver to Millard on July 2, 2012, acting as a middle man and making a profit of $800. He had pleaded guilty to a firearms trafficking charge relating to this transaction and he was awaiting sentencing. The police seized a .32 calibre Smith and Wesson revolver from Millard’s home in late 2012. It had the words “.32 long ctg” stamped on the barrel. Ward-Jackson identified the gun as the one that he sold to Millard.

[9] The relevance of Ward-Jackson’s evidence about selling a gun to Millard on July 2, 2012 is that the deceased Laura Babcock disappeared on the night of July 3/4, 2012, apparently after meeting up with Millard and while at his home in Etobicoke. The Crown alleged that she was murdered that night, which was 24 hours after Millard had obtained the gun. Her body has never been recovered and there is no crime scene so the Crown cannot prove the means by which the alleged murder was committed. In particular, there is no evidence that she was killed by some means that involved use of the .32 calibre gun. Its relevance is that Millard began communicating frequently with Ms. Babcock on June 30 and continued communicating with her from July 1 to 3, 2012, at the same time as he was communicating with Ward-Jackson about purchasing the gun. Millard had a motive to kill Ms. Babcock and the Crown alleges that motive, opportunity, and acquisition of the means to kill Ms. Babcock all came together in this brief time period in late June and early July of 2012. In other words, acquisition of the gun was relevant to both intent to kill and planning to kill, regardless of whether the gun was ultimately used on the night of July 3/4, 2012 (which the Crown could not prove without the deceased’s body or a crime scene).

[10] I had ruled that the acquisition of the gun was admissible for the above purposes after hearing a pre-trial Motion in September 2017. See: R. v. Millard and Smich, 2017 ONSC 5928 at paras. 17-32. At the same time, I excluded evidence that Ward-Jackson had previously sold Millard another handgun (a Walther PPK 9 mm). This earlier gun trafficking transaction took place on February 10, 2012, some five months before Ms. Babcock’s disappearance. The purchase of this earlier handgun appeared to be related to a different and broader criminal conspiracy between Millard and Smich. It was highly prejudicial, inferring that the two accused were engaged in other serious criminal activities in addition to the Babcock murder. Its legitimate relevance to the Babcock murder was that it showed that Millard and Ward-Jackson already had an established gun trafficking relationship at the time when Millard tried to contact Ward-Jackson on June 30, 2012. This was also the time when Millard was about to meet up with Ms. Babcock. Accordingly, the inference that Millard was looking for a murder weapon was an issue of some importance. However, this legitimate probative value was outweighed by the prejudicial effect of Millard’s and Smich’s broader criminal activities and, in the result, the evidence of the earlier gun sale was excluded. See: R. v. Millard and Smich, supra at paras. 33-38.

[11] In cross-examination of the witness Ward-Jackson, Millard sought to establish that he had contacted Ward-Jackson on June 30, 2012 in order to purchase cocaine and that it was Ward-Jackson who then initiated or took the lead in proposing a gun sale. Ward-Jackson did not agree with the former suggestion about a cocaine sale but he did agree with the latter suggestion as to who likely initiated the gun sale. He testified that he “imagines” it was himself who had initiated the transaction because “there had not been any previous interest in firearms by Mr. Millard”.

[12] This latter evidence was demonstrably false as Ward-Jackson had sold Millard the Walther PPK handgun on February 10, 2012 (which was the evidence that I had excluded on the pre-trial Motion). Text messages proved this prior gun sale and Ward-Jackson had pleaded guilty to a gun trafficking count relating to the sale of the Walther PPK to Millard. However, the Crown could not re-examine Ward-Jackson about this prior sale, to prove the falsity of his testimony in cross-examination, because of my pre-trial ruling excluding evidence of the earlier gun trafficking transaction.

[13] At the conclusion of Ward-Jackson’s testimony, the Crown applied to call evidence of the Walther PPK sale, in effect seeking re-consideration of my pre-trial ruling on the basis of the conduct of the defence at trial. I declined to re-consider the pre-trial ruling and affirmed my reasons for excluding evidence of the earlier February 10, 2012 gun sale. However, I granted a narrower remedy and allowed the Crown to re-examine Ward-Jackson. On a voir dire in the absence of the jury, I reminded Ward-Jackson of the earlier sale of the Walther PPK to Millard and asked him to clarify his evidence in cross-examination to the effect that Millard had not shown any “previous interest” in firearms. Ward-Jackson explained that Millard had shown an “interest”, in the sense that they had previously “discussed” the purchase and sale of firearms, but that it was Ward-Jackson who always initiated these prior discussions. I allowed the Crown to ask Ward-Jackson one question in re-examination, namely, whether Millard had previously shown an “interest” in purchasing firearms by “discussing” that subject with Ward-Jackson. He then testified before the jury that Millard had previously shown an interest in this sense, by discussing the purchase of firearms. I directed the Crown not to ask, and directed the witness not to testify, about any actual completed sale of a gun on a prior occasion. In particular, I instructed the Crown and the witness that the Walther PPK transaction on February 10, 2012 was not to be mentioned. The Crown and the witness complied with my order.

[14] It is in relation to this evidence elicited in re-examination that Millard now seeks an instruction to the jury, directing them to disregard it.

(ii) The second Motion: an instruction concerning the Crown’s failure to call Ms. Noudga

[15] Christina Noudga was Millard’s girlfriend at the time of the relevant events in July 2012. She was available to be called as a witness but none of the three parties chose to call her. Her role in the case, and any relevant evidence she could have provided, related to two separate issues. First, she figured in the alleged motive for the murder as there were extensive text messages in April 2012 between her and Millard in which they discussed Ms. Babcock in disparaging terms, expressing an intent to “hurt” her, to “make her leave”, and to “remove her from our lives”. A number of witnesses, as well as text messages between Millard and Ms. Babcock, provided evidence about the background to this alleged motive. There was “friction” and “bad blood” between Ms. Noudga and Ms. Babcock, due to sexual jealousy, according to these witnesses and texts. Ms. Babcock had an earlier relationship with Millard and she remained infatuated with him. It appears from all the evidence that Ms. Babcock and Ms. Noudga were competing for Millard’s attentions and that Ms. Babcock had become a significant irritant in Millard’s relationship with Ms. Noudga.

[16] The second issue in which Ms. Noudga figured is certain post-offence conduct. Millard had been arrested in Hamilton for the murder of Tim Bosma in May 2013. While in custody awaiting trial on that charge, and while subject to an order not to communicate with Ms. Noudga, Millard had managed to send her a number of letters (with the assistance of intermediaries). These letters discussed, amongst other things, a renewed Toronto police investigation relating to the earlier disappearance of Ms. Babcock in July 2012. In these letters, Millard made certain damaging admissions implying that on “the night Laura disappeared” she was at his home in Etobicoke. He sought Ms. Noudga’s assistance in exculpating himself and in shifting the blame to Smich. The letters are open to the inference that Millard was attempting to obstruct justice with Ms. Noudga’s assistance. The letters were seized with a search warrant from Ms. Noudga’s home in April 2014. Millard and Smich were charged that same day with the murder of Ms. Babcock. Ms. Noudga was charged with being an accessory after the fact in relation to the murder of Tim Bosma. The letters were admitted at the present trial through the seizing police officer, together with Millard’s admission that he was their author.

C. ANALYSIS

(i) The first Motion

[17] In my view, Millard’s first Motion is badly misconceived. He seeks an instruction to the jury to completely disregard Ward-Jackson’s evidence, elicited in re-examination, to the effect that Millard had shown a “previous interest” in firearms in the sense that they had prior “discussions” on this topic.

[18] The instruction sought by Millard, if granted, would leave Ward-Jackson’s evidence in cross-examination unchallenged to the effect that Millard had not previously shown any interest in the purchase of firearms. Ward-Jackson volunteered this evidence as the basis for his belief that it was he who had initiated the July 2, 2012 sale of the .32 calibre Smith and Wesson revolver. Disregarding the re-examination, would leave the jury with a false and misleading picture, as it is a known fact that Millard had previously shown a significant interest in purchasing a firearm from Ward-Jackson, indeed, he had completed such a purchase and sale on February 10, 2012. It would also be unfair to the Crown as the question of who initiated the June 30th to July 3, 2012 discussions about acquiring the .32 calibre revolver was a disputed and important fact in issue at trial. The Crown’s position was that Millard initiated this request for a gun, as part of his plan to kill Ms. Babcock. The position advanced by Millard was that he was looking for cocaine, that Ward-Jackson initiated the discussions about the gun, that the acquisition of the gun was simply an unforeseen opportunity that arose, and that it had nothing to do with his upcoming meeting with Ms. Babcock. If Millard’s requested instruction was granted, the jury would be asked to resolve this important factual dispute on the basis of an incomplete and false evidentiary record. Needless to say, this was not an attractive proposition.

[19] Millard submits that the lesser remedy I granted, allowing the Crown to ask one question concerning whether there were any prior “discussions” about the purchase and sale of a firearm, was misleading and unfair to him for two reasons. First, it could leave the impression that the prior “discussions” were about the .32 calibre revolver when, in fact, they were about the Walther PPK handgun. Second, it could leave the impression that Ward-Jackson had now reversed his position as to who initiated the discussions about purchasing a gun in late June and early July of 2012. In support of this latter point, Millard notes that Ward-Jackson had not reversed his position. In fact, he continued to insist during his voir dire testimony that it was he who initiated both the earlier Walther PPK transaction in February and the later Smith and Wesson transaction in July.

[20] The answer to Millard’s two concerns is two-fold. First, it was Millard who chose to raise the issue with Ward-Jackson in cross-examination as to who initiated the gun sale in late June and early July of 2012. This was a dangerous area to enter. Ward-Jackson was a witness with significant challenges to his credibility and reliability. Furthermore, the topic of who initiated the discussions about a gun sale inevitably leads to questions about their pre-existing relationship, which was a gun trafficking relationship. In short, having chosen to enter into this risky area in cross-examination, Millard cannot now insulate the false evidence that emerged from any correction during re-examination.

[21] The second answer is that I gave Millard the tactical option of surrebuttal, if he wished to question Ward-Jackson further about the prior “discussions”, for example, in order to elicit evidence to the effect that these “discussions” were not related to the .32 calibre revolver transaction and/or to the effect that Ward-Jackson had initiated the prior “discussions” (about the Walther PPK). I had prevented the Crown from bringing out evidence about the prior gun transaction because it was prejudicial evidence that related to significant prior criminal misconduct by both Millard and Smich. This ruling did not prevent Millard from tactically choosing to bring out the evidence himself. I note, however, that Ward-Jackson’s evidence on the voir dire, to the effect that he was the one who initiated the Walther PPK gun sale on February 10, 2012, appears to be false and this may help to explain why Millard chose not to ask further questions in this area. The text messages at that time infer that it was Millard who was persistently trying to contact Ward-Jackson, in late January and early February 2012, because “I want to talk about tools”. Ward-Jackson agreed with Sgt. Jansz that the word “tools” refers to firearms.

[22] Millard chose not to take up my offer of further cross-examination of Ward-Jackson, in surrebuttal, and chose not to re-call him as a defence witness. In the result, Ward-Jackson’s testimony in cross-examination, to the effect that he “imagines” it was he who initiated the sale of the .32 calibre revolver, remained before the jury and was included in my Charge (at p. 236). However, the stated basis for Ward-Jackson’s belief, namely, that no prior interest had been shown by Millard in such a purchase, was corrected by the evidence elicited in re-examination (which was also left to the jury at p. 236 of the Charge). In my view, this was a fair and reasonable way in which to leave the evidence on this point. It corrected the part of Ward-Jackson’s testimony that was false and misleading and it did so without prejudicing either Millard or Smich by testimony about the February 10, 2012 gun trafficking transaction.

[23] For all these reasons, the first Motion was dismissed.

(ii) The second Motion

[24] The second Motion is more legally and factually complex than the first Motion. Both Millard and Smich conceded that the Crown’s decision not to call Ms. Noudga as a witness cannot give rise to an “adverse inference”. However, they both submitted that it does give rise to a “gap in the evidence” that could form the basis for reasonable doubt as to guilt. Furthermore, they submitted that my instructions to the jury about the former legal principle (no “adverse inference”) may have detracted from the latter legal principle (a “gap in the evidence” as the basis for reasonable doubt). My instructions to the jury on this point were given in the middle of the parties’ closing addresses and were briefly referred to again in the Charge to the Jury.

[25] It can be seen that this second Motion requires consideration of two distinct legal principles as well as some analysis of what happened during the closing addresses. Beginning with this latter issue, Millard addressed the jury first. Amongst his submissions was an argument to the effect that the failure to call Ms. Noudga as a witness meant that there was “an absence of evidence” because “she didn’t come here to explain these text messages” relating to the motive issue. Millard further submitted that the post-offence letters to Ms. Noudga were “of minimal evidentiary value because we haven’t heard from Christina to tell us what it means… we haven’t heard any explanation from Christina as to what it means… At its highest its talking about trafficking in drugs.” See: Transcript, December 5, 2017 at pp. 59, 74 and 79.

[26] Mr. Dungey, counsel for Smich, addressed the jury next. Early in his closing address, Mr. Dungey picked up on and amplified Millard’s point about the failure to call Ms. Noudga in order to testify about the motive issue. He submitted as follows:

An interesting factor here is that a Crown – we’ve gone through weeks and weeks of text messages, and I’m not going to go through all of these text messages… But this love triangle, I’m sure you, ladies and gentlemen, and I know myself, and I’m sure a great deal of the public were anticipating hearing from Christine Noudga, because Christine Noudga is the person that is the cause, one of the causes allegedly of the death of Laura Babcock. Only natural, only naturally would we expect Christine Noudga to be called. The Crown – the onus is on the Crown. They did not call her. … The one person that could have assisted this Court, could have told us was there a love triangle, was there such a hatred that would inspire Mr. Millard to kill someone, surely you’re entitled to hear that, but you didn’t hear it.

Now, His Honour will tell you the Crown has the discretion, only the Crown. A judge can’t tell a Crown, defence counsel cannot tell the Crown who to call. The Crown makes the determination who to call and who not to call. They make the determination. It’s their onus and we say they failed. They failed you, the members of this jury, because what they’re doing in effect, they’re saying, hey, you decide, you live with it for the rest of your life as to whether or not Mr. Smich is guilty or not guilty, and they walk away after the trial and you’re stuck with it for the rest of your life. Are you going to be satisfied in making a decision where you haven’t heard the main component? How could you be? How could you possibly be satisfied when the main component has not been called, you’ve not heard from her? How could that not raise doubt in your eyes, in your minds. [Emphasis added].

See Transcript, December 6, 2017 at pp. 5-6.

[27] Mr. Dungey returned to the theme of the Crown’s failure to call certain witnesses later in his closing address. He quite properly raised issues as to the credibility and reliability of two Crown witnesses, Desi Liberatore and David Cronin, who had testified about certain incriminating statements made by Smich that were allegedly about the murder of Ms. Babcock. He then referred to a third person, one James Lewis, who may also have been present in Smich’s garage at the time when these statements were allegedly made but who was not called to testify. Mr. Dungey submitted as follows:

But there’s another aspect to the puzzle here. Another aspect to it that’s very, very important. There were three young boys in the garage according to Liberatore and Cronin. Three. James Lewis.

James Lewis. Was there a James Lewis that came up and testified? Did the Crown call James Lewis? No James Lewis testified. He didn’t testify. He wasn’t called by the Crown. I’m going to repeat: The Crown does not have to put all the evidence they – in. They chose what evidence to call. We saw that with Dave Austerweil [a defence witness]. They didn’t call him. It didn’t help their case.

Well, you can infer that they didn’t call Lewis because it wouldn’t help their case. And why can you infer that? I can tell you why you can infer that. Because Liberatore told us that Lewis said that he thought he had – didn’t have any time for this garage discussion. Didn’t have any time for it. Right? Well, shouldn’t you have been able to have him on the stand? Shouldn’t the Crown put him on the stand? So he’s not there for you. Oh, the question is: Then you can call him, Mr. Defence Counsel. You can call. Sorry, the system don’t work like that, folks. We’ve got the best system in the world. Proof beyond a doubt. Onus of innocence. We do not charge someone and that person then have to prove his innocence. That’s why when you look around the world, almost all of the great democracy still exists, is under Bristish common law. Not to say all of them, but a great number of them because of the system we have. The state charges you, the state has to prove your guilt beyond a reasonable doubt. But the irony of it, the state doesn’t have to call evidence that doesn’t assist them. It’s their choice. That’s the way it works. [Emphasis added].

See: Transcript, December 6, 2017 at pp. 49-50.

[28] The Crown objected to the closing addresses, in particular to Mr. Dungey’s address. Amongst other objections, the Crown sought an instruction concerning the inferences that can and cannot be drawn from the Crown’s decision not to call Christina Noudga and James Lewis. The Crown advised the Court that Mr. Lewis had refused to give a statement to the police about Smich’s alleged statements made in the garage. Mr. Dungey acknowledged that there was no statement from Mr. Lewis. As for Ms. Noudga, it is apparent that she actively obstructed justice together with Millard after the murder of Tim Bosma. In fact, she pleaded guilty to this offence. She also responded to Millard’s letters, including referring to him as a “sweet serial killer” in one letter that she apparently decided, on further reflection, not to send. I instructed the jury that there was “no basis for any adverse inference to be drawn” from the Crown’s decision not to call these two witnesses.

[29] The law in this area, in criminal cases, is settled by a strong line of authority. It is only in very limited circumstances that a trier of fact, whether judge or jury, can draw an “adverse inference” from a party’s decision not to call a particular witness. The rationale for this cautious approach to the issue is that there are often good reasons for not calling a particular witness and so the “adverse inference” is simply not justified in many cases. A secondary rationale for this cautious approach is that the judge or jury is rarely in a position to assess the validity of the requested “adverse inference”. The witness’ prior statement or statements, the witness’ prior character and antecedents, and counsel’s tactical considerations are generally not known or available to the trier of fact. They are generally kept confidential in counsel’s brief. As a result, the judge or jury are not institutionally capable or equipped to decide whether the “adverse inference” is justified, absent some inquiry into counsel’s brief. See: R. v. Zehr (1980) 1980 2964 (ON CA), 54 C.C.C. (2d) 65 (Ont. C.A.); R. v. Koffman and Hirschler (1985) 1985 3640 (ON CA), 20 C.C.C. (3d) 232 (Ont. C.A.); R. v. Rooke (1988) 1988 2946 (BC CA), 40 C.C.C. (3d) 484 (B.C.C.A.); R. v. Jolivet (2000) 2000 SCC 29, 144 C.C.C. (3d) 97 (S.C.C.).

[30] Brooke J.A. gave the authoritative explanation for the above two part rationale in R. v. Zehr, supra at pp. 68-69, speaking for the Court in a case where the trial judge had instructed the jury that an “adverse inference” was available:

I think the trial Judge erred in making this comment and giving this instruction to the jury in this case. While permissible in some cases, comment on the failure to call a witness should only be used with great caution. This kind of comment from a trial Judge can seriously affect what might otherwise be the jury’s assessment of the credibility of those who do testify and perhaps, more importantly the integrity of the case. Such comment and instruction whether referable to the prosecution or the defence is really a comment on the conduct of the case and the instruction gives it some evidentiary significance. There are many reasons why counsel may choose not to call a witness, and our Courts will rarely question the decision of counsel, for the system proceeds on the basis that counsel conducts the case. Often a witness is not called, and if the reason was known it would not justify an instruction that an adverse inference might be drawn from the witness not being called. Of importance under our system, counsel in not called upon, or indeed permitted, to explain his conduct of a case.

[31] Neither Millard or Smich questions the above line of authority and both concede that there was no proper basis in this case for drawing an “adverse inference” from the Crown’s decision not to call Christina Noudga or James Lewis. Their submission is that the closing addresses, summarized above, were not suggesting any “adverse inference” but were merely pointing to a “gap in the evidence” as a basis for reasonable doubt. This submission raises the question of what is meant by an “adverse inference” being drawn from a party’s failure to call a particular witness.

[32] The most common “adverse inference”, in cases where a party fails to call a witness, “is that the jury may infer that if the witness were called his testimony would be unfavourable”, as Martin J. A. put in in Koffman, supra at p. 238. Brooke J.A. referred to the “adverse inference” in Zehr, supra at p. 68 as an instruction that gives “some evidentiary significance” to the failure to call a witness. Binnie J. took a flexible or contextual approach to the meaning of “adverse inference” in Jolivet, supra at pp. 110-111:

One must also be precise about the exact nature of the “adverse inference” sought to be drawn. In J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 297, para. 6.321, it is pointed out that the failure to call evidence may, depending on the circumstances, amount “to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it” (emphasis added), as stated in the civil case of Murray v. Saskatoon, 1951 202 (SK CA), [1952] 2 D.L.R. 499 (Sask. C.A.), at p. 506. The circumstances in which trial counsel decide not to call a particular witness may restrict the nature of the appropriate “adverse inference”. Experienced trial lawyers will often decide against calling an available witness because the point has been adequately covered by another witness, or an honest witness has a poor demeanour, or other factors unrelated to the truth of the testimony. Other jurisdictions also recognize that in many cases the most that can be inferred is that the testimony would not have been helpful to a party, not necessarily that it would have been adverse: United States v. Hines, 470 F.2d 225 (3rd Cir. 1972), at p. 230, cert. denied, 410 U.S. 968 (1973); and the Australian cases of The Duke Group Ltd. (in Liquidation) v. Pilmer & Ors, [1988] A.S.O.U. 6529 (QL), and O’Donnell v. Reichard, [1975] V.R. 916 (S.C.) at p. 929.

An adverse inference occurs when the trier of fact draws a conclusion about what the testimony of an uncalled witness would have been, to the extent that the trier of fact infers that the evidence would have been detrimental to, or at least would not have assisted, the case of the party who fails to call the witness.

[33] In my view, Mr. Dungey’s closing address undoubtedly asked the jury to draw an “adverse inference” from the Crown’s failure to call James Lewis. He explicitly stated: “you can infer that they didn’t call Lewis because it wouldn’t help their case”. In relation to Christina Noudga, both Millard and Mr. Dungey were more subtle as to the inference they sought from the Crown’s decision not to call her. However, it was implicit that Ms. Noudga’s evidence could have assisted the defence because, as Millard put it, she could “explain these text messages” relating to motive and she could “tell us what it means” and provide an “explanation… as to what it means” in relation to the post-offence letters. Or as Mr. Dungey put it, Ms. Noudga was “the main component” in the case and “only naturally would we expect [her] to be called” but the Crown “did not call her… The one person that could have assisted this Court, could have told us was there a love triangle”.

[34] In my view, the above closing addresses on behalf of Millard and Smich, viewed realistically in their entirety, submitted to the jury that the evidence of James Lewis and Christina Noudga could have assisted the defence and that the Crown’s decision not to call them as witnesses should be viewed in this light. These submissions sought an “adverse inference”, as that term has been understood in the case law summarized above, because the defence sought to gain some “evidentiary significance” from the Crown’s decision-making in the case. The submissions were unjustified as there were sound reasons for not calling Mr. Lewis and Ms. Noudga. Furthermore, there was no basis to imply or infer that their evidence could have been favourable to the defence or helpful to the Court, aside from speculation. As Martin J.A. put it in Koffman, supra at p. 237, they were witnesses “whom neither the Crown nor the defence, understandably, might wish to call” as they both appeared to be unreliable, unpredictable, and unnecessary.

[35] In these circumstances, I decided that a correcting instruction was required. As Binnie J. explained, speaking for the Court in Jolivet, supra at p. 114:

Nevertheless, cases calling for judicial comment will arise. Here, for instance, if defence counsel had not been content to pick holes in the prosecution’s case and had gone further to suggest that an adverse inference could appropriately be drawn that Bourgade’s evidence, if called, would have supported the respondent, a correcting instruction would have been warranted. An inappropriate comment by Crown counsel on a missing defence witness would similarly warrant a judicial correction: R. v. Dupuis (1995), 1995 1543 (ON CA), 98 C.C.C. (3d) 496 (Ont. C.A.).

Binnie J.’s reference to R. v. Dupuis (1995) 1995 1543 (ON CA), 98 C.C.C. (3d) 496 (Ont. C.A.) is to the statement of Osborne J.A., as he then was, at p. 507 C.C.C., speaking for the Court:

If the trial judge concluded that the failure to call the witnesses was not capable of supporting such an adverse inference, he should have plainly told the jury that, as a matter of law, it was not open to it to draw any adverse inference at all from the appellant’s failure to call the witnesses referred to by Crown counsel.

[36] The instruction that I gave to the jury, immediately after Mr. Dungey’s closing address and during the Charge to the Jury, was consistent with the one recommended by Osborne J.A. in Dupuis, namely, that there was no proper basis in law “for any adverse inference to be drawn” from the Crown’s decision not to call Ms. Noudga and Mr. Lewis.

[37] The only remaining issue is whether this correcting instruction somehow went further and not only told the jury that there was no basis to draw an “adverse inference” but also told them that the Crown’s decision not to call Ms. Noudga could not amount to a “gap in the evidence” and could not provide a basis for reasonable doubt. Both Millard and counsel for Smich made this submission in seeking a further jury instruction explicitly stating the following: that “along with other gaps in the evidence, the jury can consider the failure to call Ms. Noudga in assessing whether the Crown has proved the case beyond reasonable doubt”. Neither Millard nor counsel for Smich made a similar submission in relation to the Crown’s decision not to call James Lewis as a witness, apparently conceding that this latter decision could not amount to a “gap in the evidence”.

[38] There are three reasons why this submission cannot succeed and why the requested instruction was unwarranted. First, there can be no suggestion that my correcting instruction to the jury could be construed as an instruction about “gaps in the evidence” and about their impact on the Crown’s burden to prove guilt “beyond reasonable doubt.” The correcting instruction was short and it never used this language or referred to these concepts. It dealt exclusively with the Zehr line of authority and stated that the issue being addressed was “what inferences you should or should not draw from the Crown’s decision not to call… Christina Noudga and James Lewis.” It instructed the jury, consistent with Zehr and Koffman, that “there may well be very, very good reasons for not calling particular witnesses and our law does not require the parties to explain why they did not call a particular witness.” It acknowledged that there are cases “where it has been held proper to draw an inference from the failure to call a particular witness” but it then instructed the jury, consistent with Jolivet and Dupuis, that “this is not one of those cases where the decision not to call Ms. Noudga or the decision not to call Mr. Lewis could ever possibly give rise to an inference”. The correcting instruction concluded by stating, “There is simply no basis for any adverse inference to be drawn from the decisions not to call [these] particular witnesses”.

[39] In my view, there can be no realistic suggestion that the above correcting instruction would be misconstrued as one about the impact of “gaps in the evidence” on the Crown’s burden to prove guilt “beyond reasonable doubt”. It exclusively addressed the issue of drawing adverse inferences from the Crown’s decision not to call Ms. Noudga and Mr. Lewis.

[40] The second reason why there was no risk that the correcting instruction would be misconstrued, in the manner suggested, is that the Charge to the Jury repeatedly followed the model instructions in R. v. Lifchus (1997) 1997 319 (SCC), 118 C.C.C. (3d) 1 at p. 14 (S.C.C.) to the effect that reasonable doubt is “logically derived from the evidence or absence of evidence” [emphasis added]. Early in the Charge (at pp. 8-9) the jury was told that reasonable doubt “logically arises from the evidence, from a conflict in the evidence, or from a lack of evidence.” The concluding sentence in this part of the Charge (at p. 10) repeated this reference to “the lack of evidence” stating: “If, at the end of the case, based on all of the evidence or the lack of evidence, you are not sure that Mr. Millard or Mr. Smich committed a particular offence, you should find him not guilty of that offence”. In the next section of the Charge (at pp. 10-11), the same point was emphasized: “In determining whether the Crown has proved its case, you must assess the evidence or lack of evidence cumulatively and as a whole, before arriving at your verdict.” In the critically important instruction on circumstantial evidence (at p. 21 of the Charge), there was a further reference to a “lack of evidence” as follows: “Of course, a finding that the accused is not guilty can be based on any reasonably possible, non-speculative and logical inference that arises from the evidence or lack of evidence”.

[41] Finally, at the end of the Charge, when putting the positions of the Crown and the defence, it was repeatedly stressed that Millard’s defence relied on a number of “gaps in the evidence”: in relation to the absence of phone records for Megan Orr, Bradley Dean, and Dr. Khattak (at p. 323 of the Charge); in relation to the failure to call Julia Trippel as a witness (at pp. 323-324 of the Charge); in relation to the absence of evidence concerning Ms. Babcock’s planned trip to Montréal (at p. 324 of the Charge); in relation to the failure to ask the Rogers company to run a search for Ms. Babcock’s phone, utilizing her hand-set serial number (at p. 325 of the Charge); in relation to the failure to call Christina Noudga as a witness (at p. 325 of the Charge); and in relation to the totality of the evidence (at p. 329 of the Charge).

[42] It can be seen that the Charge to the Jury stressed a “lack of evidence” as the basis for reasonable doubt on four separate occasions, when instructing the jury on the burden of proof and the degree of proof early in the Charge. It then referred to “gaps in the evidence” on six separate occasions late in the Charge when putting the position of the defence. Included in these latter references was one that expressly referred to Millard’s position that the failure to call Christina Noudga as a witness was “another important gap in the Crown’s case” (at p. 325 of the Charge). In the concluding instruction concerning Millard’s position (at p. 329 of the Charge), I stated the following:

Mr. Millard relies on the legal principle that any rational, innocent inference, any reasonable, non-speculative possibility, is enough to raise a reasonable doubt. He submits that this case is full of reasonable doubt, that gaps in the evidence can lead to reasonable doubt, and that the Crown’s case is full of gaps in the evidence. He concludes that the Crown has not met their burden of proof and is not entitled to a conviction. He asks that you not ignore the evidence of people who testified they saw or heard from Laura further into 2012, after the night of July 3, 2012. Weigh all of the evidence and weigh the lack of evidence, as it too relates to reasonable doubt. This decision is in your hands and Mr. Millard asks you to return a verdict of not-guilty. [Emphasis added].

[43] The above concluding instruction, with its repeated references to “gaps in the evidence” and to “the lack of evidence”, was delivered on the morning of December 12, 2017, shortly before the jury retired to begin deliberating. My earlier correcting instruction to the jury, immediately after Mr. Dungey’s closing address, was delivered on December 6, 2017, that is, a full six days before the final instructions. There is no realistic possibility that the jury would have deliberated in this case on the basis of some misconception concerning “gaps in the evidence” and “reasonable doubt”, derived from my December 6, 2017 correcting instruction, after they had heard my December 12, 2017 concluding instructions, as set out above.

[44] The third and last reason why I rejected the defence request for a further instruction to the jury, concerning “gaps in the evidence” and “reasonable doubt” in relation to the decision not to call Ms. Noudga, is that Ms. Noudga’s missing testimony is not a “gap in the evidence”, as that term is understood in the case law.

[45] The principle stated in Lifchus, that reasonable doubt can be derived from an “absence of evidence”, is not a novel proposition. Ten years earlier, in R. v. Yebes (1987) 1987 17 (SCC), 36 C.C.C. (3d) 417 at pp. 433-434 (S.C.C.), one of the grounds of appeal concerned the Crown’s failure to call the accused’s wife as a witness in a case involving the murder of the couple’s two adopted boys. McIntyre J. gave the unanimous judgement of the Court and stated the following:

The remaining ground that the Crown failed to call a witness, Mrs. Yebes, essential to the unfolding of the narrative, must also fail in my view. The Crown has a discretion as to which witnesses it will call in presenting its case to the court. This discretion will not be interfered with unless the Crown has exercised it for some oblique or improper reason: see Lemay v. The King, supra. No such improper motive is alleged here. While the Crown may not be required to call a given witness, the failure of the Crown to call a witness may leave a gap in the Crown’s case which will leave the Crown’s burden of proof undischarged and entitle the accused to an acquittal. It is in this sense that the Crown may be expected to call all witnesses essential to the unfolding of the narrative of events upon which the Crown’s case is based. [Emphasis added].

[46] Ten years later, in R. v. Cook (1997) 1997 392 (SCC), 114 C.C.C. (3d) 481 at pp. 492-493 (S.C.C.), in another unanimous judgement, L’Heureux-Dubé J. quoted the above passage from Yebes with approval and added the following:

In my view, the reasoning in this passage is abundantly clear. “Essential to the… narrative” does not mean, as many have attempted to suggest, that all witnesses with relevant testimony have to be called by the prosecution. On the contrary, it refers solely to the Crown’s burden of proof in a criminal proceeding. Where the “narrative” of a given criminal act is not adequately set forth, elements of the offence might not be properly proven, and the Crown risks losing its case. [Emphasis added].

[47] The principle that emerges from Yebes and Cook is that the Crown need not call all relevant witnesses but that the Crown “risks losing its case” where “the failure… to call a witness may leave a gap in the Crown’s case… essential to the unfolding of the narrative of events upon which the Crown’s case is based.” As Binnie J. put it in Jolivet, supra at p. 106, after referring to Yebes and Cook, “the Crown is under no obligation to call a witness it considers unnecessary to the prosecution’s case.” In deciding whether the witness in question (Ms. Noudga in the present case) is, in fact, “essential to the unfolding of the narrative of events” and whether her absence has, in fact, left “a gap in the Crown’s case”, or whether she was “unnecessary to the prosecution’s case”, the facts of both Yebes and Cook are helpful. In Yebes, supra at p. 434, McIntyre J. flatly rejected the suggestion that the failure to call Mrs. Yebes had left such a “gap”. He reasoned as follows:

It was argued for Yebes in this Court that Mrs. Yebes had a greater motive than Yebes to commit the crime, and also the opportunity. She should have been called to properly complete the narrative.

It seems to me that this argument is predicated upon pure speculation. It suggests that Mrs. Yebes should have been called to complete the narrative of events which occurred in the town house that evening when there is no evidence whatever that she was present or possessed any knowledge of what occurred. The assumption that she had something to say to complete the narrative is not based on evidence and rests on nothing more than speculation.

What could Mrs. Yebes add to the narrative? The whole tragic history of these children and this family was put before the court by other witnesses. The facts leading up to the dinner on February 23rd were all before the court as were Mrs. Yebes' concerns and attitudes, clearly expressed by Yebes and the other witnesses, including medical and social welfare officials. Her only contribution to the narrative would be related to what happened after her departure from the home at 8:00 p.m. and there is no evidence, or any suggestion that she was present, when the deaths occurred and would have any knowledge on that subject. In the end, all that she could have contributed was the bald assertion that she did not kill the boys. [Emphasis added].

Much the same could be said about Ms. Noudga in the present case.

[48] In Cook, supra at p. 503, L’Heureux-Dubé J. similarly rejected the submission that the failure of the Crown to call one Dorbyson (who was the victim of a serious assault by the accused while wielding a machete), had resulted in a failure of proof. The Crown had proved the assault by calling an eye witness, certain crime scene evidence, and medical evidence concerning Dorbyson’s injuries. L’Heureux-Dubé J. reasoned as follows:

I cannot say that the trial judge erred in deciding not to call the witness. My conclusion is strengthened in this regard by the fact that defence counsel at trial made several references in his closing address to Dorbyson’s failure to testify, and he exploited this factor to its utmost in urging the jury to find a reasonable doubt. In my view, this bolsters the conclusion that the respondent, in truth, suffered no prejudice from the Crown’s failure to call the witness. Additionally, for the reasons set out above, there was no need for the trial judge to inquire into the Crown’s motivations for not calling Dorbyson.

Finally, the respondent has argued, although not particularly strenuously, that the Crown’s failure to call Dorbyson as a witness resulted in an “unsafe verdict” in that the “whole of the story” was not put before the jury. Essentially, he contends that this decision not to call Dorbyson makes it impossible to conclude that the Crown actually proved its case, and that the jury’s verdict to the contrary was an unreasonable one. I am unable to agree with this submission. After a review of the material which was admitted in this case, I am of the view that there was a great deal of evidence upon which a reasonably instructed jury could conclude that the respondent had committed the crime for which he was charged.

[49] In my view, Ms. Noudga was a potential witness much like Mrs. Yebes and Dorbyson in Yebes and Cook. She had relevant evidence to give in relation to the issues of motive and post-offence conduct but she was far from an “essential” witness whose absence left a “gap” in the Crown’s proof. Indeed, she was an “unnecessary” witness. The best evidence of the motive and the best evidence of the post-offence conduct was in the text messages and in the letters. Ms. Noudga appeared to be an unreliable individual of poor character who would be giving self-serving evidence about her own role in that motive and in that post-offence conduct. Deciding not to call this kind of evidence, and relying on the contemporaneous best evidence found in documents like the text messages and letters, hardly leaves a “gap” in the Crown’s proof. I allowed Millard to make this argument, and I included it in the Charge to the Jury (as set out above) but it was a weak argument that deserved to be summarily dismissed (and it appears that the jury did dismiss it).

[50] The cases where there have been genuine “gaps” in the evidence, for example, due to a police failure to properly preserve evidence or to properly investigate (R. v. Bero (2000) 2000 16956 (ON CA), 151 C.C.C. (3d) 545 at pp. 563-564 (Ont. C.A.)), or due to the absence of any evidence relating to an essential element like possession of the stolen goods from a robbery (R. v. Tebo (2003) 2003 43106 (ON CA), 175 C.C.C. (3d) 116 at pp. 119-121 (Ont. C.A.)), are easily distinguishable from the present case. There was abundant evidence of the motive and of the post-offence conduct, without calling Ms. Noudga, and there was no police negligence. Indeed, the police seizure of the letters from Ms. Noudga’s home and the forensic extraction of the text messages from Millard’s computer, all by means of search warrants, were the product of excellent investigative work. Also see R. v. Stark (2000) 2000 3503 (ON CA), 145 C.C.C. (3d) 129 at pp. 138-140 (Ont. C.A.) and R. v. Hassanzada (2016) 2016 ONCA 284, 335 C.C.C. (3d) 1 at paras. 71 and 107 (Ont. C.A.) where it was held that the absence of forensic evidence linking an accused to a crime scene will vary in significance from one case to the next.

[51] In my view, the instruction at the end of the Charge to the Jury, which left the failure to call Ms. Noudga for the jury’s consideration as a possible “gap in the evidence”, was overly generous to Millard. She was a witness who neither the Crown or the defence wanted to call for good reason. The Crown did not need to call her and she was unreliable and unpredictable. The defence could not risk calling her because she could testify that the account in Millard’s letter was untrue concerning “the night Laura disappeared.” That letter attempted to place Ms. Noudga at Millard’s house in Etobicoke, at the time of the homicide, when all the reliable evidence at trial indicated that she was not present. The decision not to call her did not leave a “gap in the evidence” as she was far from an essential witness or a reliable witness. Furthermore, she was a witness who could have harmed the defence.

[52] In the result, I dismissed the second Motion.

D. CONCLUSION

[53] For all the above reasons, the two Motions seeking further instructions to the jury concerning the Crown witness Ward-Jackson and concerning the failure to call Ms. Noudga were both dismissed.

M.A. Code J.

Released: December 22, 2017

CITATION: R. v. Millard, 2017 ONSC 7584

COURT FILE NO.: CR-15-50000474-0000

DATE: 20171222

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DELLEN MILLARD and MARK SMICH

REASONS FOR JUDGMENT

on TWO MOTIONS

BROUGHT AT THE END OF

THE JURY CHARGE

M.A. Code J.

Released: December 22, 2017

R. v. Millard, 2017 ONSC 7584

Case Summary

A. OVERVIEW

B. FACTS

(i) The first Motion: an instruction to disregard certain evidence of Ward-Jackson

(ii) The second Motion: an instruction concerning the Crown’s failure to call Ms. Noudga

C. ANALYSIS

(i) The first Motion

(ii) The second Motion

D. CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Legal Tests 2