DATE: 19980923
DOCKET: C18884
McKINLAY, CATZMAN and ROSENBERG JJ.A.
BETWEEN: )
) James Lockyer,
HER MAJESTY THE QUEEN ) for the appellant
)
(Respondent) )
) Michael Bernstein and
and ) Earl M. Fruchtman,
) for the respondent
KULDIP SINGH SAMRA )
)
(Appellant) )
) Heard: March 3 and 4, 1998
)
ROSENBERG J.A.:
[1] On March 18, 1982, the appellant armed himself with a revolver and a quantity of ammunition and entered Courtroom 4 at Osgoode Hall in Toronto. Although the appellant would later claim that he came to the courtroom to commit suicide, he was observed to walk deliberately towards the front of the courtroom where he shot and killed two men and seriously wounded a third. The appellant left the courtroom and ultimately left Canada. He was eventually arrested in India in 1990 and extradited to Canada in 1992.
[2] Upon his return to Canada the appellant stood trial on two counts of first degree murder and one count of attempted murder. The appellant chose to represent himself on the trial for these most serious of offences. The various judges of the Ontario Court General Division who dealt with the appellant, including the trial judge, Then J., were concerned that the appellant should receive a fair trial. They also wished to ensure that the legal issues that might arise would be properly argued so that the trial was conducted according to law. Accordingly, prior to trial, a lawyer who had briefly acted for the appellant was appointed amicus curiae. As well, the trial judge permitted two lawyers to act as legal advisers to the appellant. These lawyers gave him advice throughout the trial, argued some of the legal issues, and conducted parts of the defence, including the closing jury address.
[3] Notwithstanding this array of legal advice and the elaborate steps taken by the trial judge to ensure a fair trial conducted according to law, the appellant now argues that he was deprived of a fair trial because the court appointed his former lawyer as amicus curiae. The appellant also complains about the conduct of Crown counsel in cross-examining an important defence expert witness and the charge to the jury on reasonable doubt.
[4] In my view, the appellant received a fair trial untainted by any reversible error and I would dismiss this appeal.
THE FACTS OF THE OFFENCES
[5] Only a very brief summary of the facts of the offences is necessary in view of the grounds of appeal. In January and February 1982, disputes arose in the Shromani Sikh Society in Toronto relating to the voting registration process to elect the executive for the Temple. The election was scheduled for March 1982 and the appellant was a candidate for an executive position. The appellant alleged that there were various irregularities in the process for registering voters. The appellant believed that Amarjit Singh Tatla was responsible for these irregularities. The appellant retained counsel who obtained an ex parte interim injunction on March 8, 1982 to enjoin the election until a proper voters’ list was prepared. The case was to return to court on March 18, 1982 to determine whether the injunction should be continued. Prior to March 18, 1982, the appellant had discussions with Tatla and others and there was evidence that he believed the issue had been settled. In fact, there was no settlement and a hearing commenced the morning of March 18th before the Honourable Mr. Justice Osler.
[6] The appellant was not in the courtroom when the hearing began. Just prior to the lunch break, Osler J. suggested that the parties attempt to settle the case over the lunch hour. The appellant came to the courthouse in response to a call from his lawyer and met briefly with his lawyer. He appeared agitated and seems to have gained the impression that the case was not going well. The parties, including the appellant, re-entered the courtroom shortly after 2:00 p.m. and the hearing proceeded. At some point in the proceedings, the appellant left the courthouse and went to his car where he retrieved a revolver and ammunition. He returned to the courtroom and as soon as the judge gave judgment dissolving the injunction, the appellant shot and wounded Tatla and shot and killed Oscar Fonseca, Tatla’s lawyer, and Bhupinder Singh Pannu, an associate of Tatla’s.
[7] As indicated, it was the appellant’s evidence that he had originally returned to the courtroom with the intention of committing suicide. There was evidence that the appellant was under a great deal of pressure as a result of a number of personal problems. The appellant had recently been fired from his job. He was under considerable financial pressure. The appellant was active within the community helping Sikh refugee claimants and his wife believed that he was spending too much time on this work and not devoting enough time to his family. He testified that on the morning of the shooting, his wife had given him an ultimatum that he must either spend more time with his family or she would divorce him.
[8] The defence argued that at the time of the shootings the appellant was in an altered state of mind and was incapable of planning and deliberation. The defence also argued that the defence of provocation was available to the appellant as a result of an alleged insulting gesture made by Tatla towards the appellant in the courtroom. The defence called a psychologist and psychiatrist to provide evidence about the appellant’s state of mind. The psychiatrist, Dr. Cooper, testified that the appellant had a history of depression and suffered from a personality disorder, a combination of a paranoid personality and a borderline personality. Dr. Cooper testified that a person with a borderline personality could have “breaks with reality” as the stresses increased. Dr. Malcolm, a psychiatrist retained by the Crown, agreed that the appellant suffered from a personality disorder but it was his opinion that the appellant was capable of planning and deliberation and knew what he was doing.
[9] The appellant was convicted of two counts of first degree murder and one count of attempted murder.
THE AMICUS CURIAE ISSUE
The Facts
[10] The appellant was represented by counsel, Mr. Roach, at his preliminary inquiry. However, on a motion by the Crown, Mr. Roach was ordered removed from the record because he had a conflict of interest. The ground of appeal concerning appointment of amicus curiae arises from the appointment of Mr. Christopher Black as amicus curiae. The circumstances leading to his appointment are as follows.
[11] Following the preliminary inquiry, the appellant appeared without counsel in the Ontario Court (General Division) on March 24, 1993 and stated his intention to defend himself. He was strongly urged by the presiding judge to retain counsel. On June 3, 1993, Mr. Black appeared with the appellant before Watt J. At that point, the trial was scheduled to begin on June 14, 1993. Mr. Black explained to Watt J. that he had been retained for only a short time and that his retainer was limited to assisting the appellant with the defence. Mr. Black originally stated that while he was to cross-examine all the witnesses, make all legal arguments and address the jury, the appellant wished to reserve the right to also cross-examine witnesses. However, as Watt J. probed further in an attempt to clarify the exact scope of Mr. Black’s retainer, it became clear that the division of responsibilities between Mr. Black and the appellant in the conduct of the trial was vague and that the appellant claimed the right to conduct most of the trial himself. For example, when Watt J. attempted to determine who would conduct the jury selection, the appellant said,
Whenever I feel any necessity to take advice from Mr. Black I will take his advice. But I still intend to do most of the trial myself.
[12] After further discussions, Watt J. adjourned the case to June 9th. On that date, Mr. Black applied to be removed from the record and stated that the appellant wished to represent himself. Mr. Black explained that he could not continue to act on the basis of the limited retainer. In his view, such an arrangement was “totally unworkable” and he could not serve a useful purpose. Crown counsel then raised the possibility of Mr. Black being appointed to act as amicus curiae. Mr. Black stated that he was prepared to accept such an appointment and that his relationship with the appellant continued to be a good one and that the appellant had confidence in him. The appellant accepted this arrangement. Mr. Black stated that the appellant was willing to have him act as amicus curiae “as long as he gets to make the final decisions” and to “run the show his way”. Accordingly, Watt J. appointed Mr. Black as amicus curiae and adjourned the case for trial to June 14, 1993.
[13] On June 14, 1993, the parties appeared before German J. The trial did not proceed at that time. The appellant raised a complaint about disclosure from the Crown and in passing stated that he did not need Mr. Black’s assistance. He did not explain this comment. He did not ask that Mr. Black be discharged as amicus curiae.
[14] The trial began on September 27, 1993. At that time, the appellant appeared with Mr. Hamalengwa, a lawyer the appellant described as his legal advisor. The trial judge agreed to allow Mr. Hamalengwa to assume this role. The appellant stated that he was unsure of Mr. Black’s role in the proceedings and at one point indicated that he did not wish Mr. Black to remain. The appellant never explained why he did not wish Mr. Black to continue as amicus curiae and Mr. Hamalengwa was of the view that Mr. Black should remain. Following further discussions on that day and the next, the appellant accepted Mr. Black’s role. Then J. explained the role of amicus curiae in these terms:
THE COURT: Mr. Samra, the amicus curiae role that Mr. Black is presently adopting is not in a capacity of being a legal advisor to you. You are the counsel of record. You are your own counsel and you are defending yourself. You have decided to do that and you’ve explained why you’ve decided to do that. Your advisor in this case is Mr. Hamalengwa and whoever else you feel that you are to obtain legal advice from and we’ve also gone through that. The role that Mr. Black assumes in this proceeding, as I understand it, is because you are unrepresented and you are representing yourself, albeit you are receiving legal advice from Mr. Hamalengwa. The court, in that circumstance, would find it advantageous to have representations made on legal points or other points that arise that touch your interest on your behalf. Because, it might happen that because you’re unrepresented and perhaps even with legal advice that some matters that might be favourably mentioned on your behalf, might fall through the cracks, and Mr. Black’s role is to make sure that everything that can be said on your behalf is said. I hope I have explained it adequately. He is not your legal advisor. He is not your lawyer. What he is is a person who is here to help the court make sure that everything that can be said in your favour is said or done. So, I hope that I’ve done that in a way that you can understand so you can appreciate what Mr. Black’s role here is. Does that clear it up for you?
THE ACCUSED: Yes, your honour, it is clear to me.
THE COURT: All right.
THE ACCUSED: I accept that.
[15] In the course of the ensuing lengthy trial, the appellant’s acceptance of Mr. Black’s role wavered. At some points he appeared quite content to have Mr. Black present and even consulted with him at times. However, on at least two occasions the appellant applied to have Mr. Black discharged as amicus curiae. The only reason given by the appellant for this change is that he perceived that on occasion Mr. Black made submissions on legal issues that did not support the position he was attempting to put forward and he had lost confidence in him. The trial judge refused to remove Mr. Black and the trial proceeded.
The Issue
[16] In his careful submissions, Mr. Lockyer took the court through virtually all of the interventions by Mr. Black. His position, as I understand it, is that it was not open to the court to appoint Mr. Black as amicus curiae because, as the appellant’s former lawyer, Mr. Black was in a conflict of interest. Mr. Lockyer submits that the appearance of a fair trial was destroyed. Alternatively, he argues that the appellant was actually prejudiced by the presence of Mr. Black who made legal submissions contrary to the best interests of the appellant and disclosed confidential information from the appellant.
[17] In my view, the issues concerning Mr. Black’s appointment as amicus curiae raise the following three questions:
1. Did the trial judge err in law in appointing Mr. Black, a former counsel of the appellant, as amicus curiae?
2. If not, did the trial judge err in law in refusing to discharge Mr. Black when asked to do so by the appellant in the course of the trial?
3. In any event, did a miscarriage of justice occur because of Mr. Black’s interventions in the course of the trial?
Analysis
Question One: Appointment of Mr. Black as amicus curiae
[18] It was not argued, nor could it be, that a superior court has no power to appoint amicus curiae at the trial of an unrepresented accused. The appellant’s argument therefore must be that the court erred in appointing Mr. Black as amicus curiae because of a potential or actual conflict of interest.
[19] I have already indicated that when Watt J. first appointed Mr. Black, the appellant did not allege any conflict of interest. Nor was any such allegation made when Then J. confirmed Mr. Black’s role at the outset of the trial. In my view, the mere fact that Mr. Black had previously been retained by the appellant in this matter did not preclude his appointment as amicus curiae. The problem of conflict of interest has usually arisen because counsel has been retained to act for a client opposed in interest to the former client. Sopinka J. expressed the test for a disqualifying conflict of interest in MacDonald Estate v. Martin (1990), 77 D.L.R. (4th) 249 at 267 (S.C.C.) as follows:
[t]he test must be such that the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur. That, in my opinion, is the overriding policy that applies and must inform the court in answering the question: Is there a disqualifying conflict of interest? In this regard, it must be stressed that this conclusion is predicated on the fact that the client does not consent to but is objecting to the retainer which gives rise to the alleged conflict.
Typically, these cases require two questions to be answered: (1) Did the lawyer receive confidential information attributable to a solicitor-and-client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client? [Emphasis added.]
[20] Sopinka J. dealt with the second question, whether there is a risk that that confidential information will be used to prejudice the client, at p. 268:
The second question is whether the confidential information will be misused. A lawyer who has relevant confidential information cannot act against his client or former client. In such a case the disqualification is automatic. No assurances or undertakings not to use the information will avail. The lawyer cannot compartmentalize his or her mind so as to screen out what has been gleaned from the client and what was acquired elsewhere. Furthermore, there would be a danger that the lawyer would avoid use of information acquired legitimately because it might be perceived to have come from the client. This would prevent the lawyer from adequately representing the new client. Moreover, the former client would feel at a disadvantage. Questions put in cross-examination about personal matters, for example, would create the uneasy feeling that they had their genesis in the previous relationship. [Emphasis added.]
[21] Inasmuch as the appellant did not initially object to the appointment of Mr. Black as amicus curiae because he had a conflict of interest, the stringent test enunciated by Sopinka J. may not be fully applicable. Moreover, the appellant provided no information either to Watt J. or Then J. from which they could have concluded that Mr. Black would be in a conflict of interest if he were appointed as amicus curiae. The appellant and Mr. Black appeared to be on good terms and the appellant at least initially had confidence in him. The only reason given for the termination of Mr. Black’s retainer was his reluctance to fulfil the legal advisor role as envisaged by the appellant. It is apparent that Mr. Black considered that role unworkable because it was inconsistent with what he perceived to be the role of defence counsel. While I think it is fair to assume that Mr. Black had relevant confidential information, there was no reason for either Watt J. or Then J. to believe that he would use that information to the prejudice of the appellant.
[22] Further, in my view, appointment of Mr. Black as amicus curiae in these circumstances did not mean that he would be acting “against” his former client, the appellant. There is no precise definition of the role of amicus curiae capable of covering all possible situations in which the court may find it advantageous to have the advice of counsel who is not acting for the parties. It seems to me, however, that the role of amicus curiae in this case is similar to the description given by Ferguson J. in Grice v. The Queen (1957), 11 D.L.R. (2d) 699 at 702 (Ont. H.C.J.):
In its ordinary use the term implies the friendly intervention of counsel to remind the Court of some matter of law which has escaped its notice and in regard to which it is in danger of going wrong.
[23] It may be that since the appellant was without counsel, it was envisaged that the interventions by the amicus curiae would more often be in favour of the appellant’s position. However, amicus curiae is not a party to the action but a friend of the court. Mr. Black’s role was not to simply adopt or parrot the submissions of the appellant or his advisors. Moreover, Mr. Black’s role was limited. He was to advise or make suggestions. He would not be cross-examining or examining any witnesses nor making submissions in the presence of the jury. It was expected that he could provide the trial judge with legal submissions that would be of assistance.
[24] Given the appellant’s initial position with respect to Mr. Black, his appointment as amicus curiae would appear to be appropriate. The trial judge was about to embark on a lengthy and complex case with an unrepresented accused. The fact that Mr. Black had some familiarity with the case as a result of his prior retainer would have been seen as an advantage. The trial judge was concerned that the appellant’s rights be protected and that the potential legal issues be properly argued. The trial judge was in the best position to determine whether Mr. Black could adequately fill the role. I would not second-guess the trial judge, particularly in the absence of an express objection at the time on the basis of conflict of interest.
[25] Mr. Black’s prior retention as counsel for the appellant was not inconsistent with his assuming the different and limited role of amicus curiae. Neither Watt J. nor Then J. erred in law in appointing him as amicus curiae.
Question Two: Failure to discharge Mr. Black during the trial
[26] It is also my view that the trial judge did not err in refusing to discharge Mr. Black when he was asked to do so by the appellant in the course of the trial. With the exception of one objection near the end of the trial concerning the appellant’s former wife, the appellant’s objections to Mr. Black’s continuing participation in the trial were grounded not in a disqualifying conflict of interest on the part of Mr. Black but a misapprehension of the role of defence counsel and the role of amicus curiae. It was never suggested that because of his earlier involvement in the case Mr. Black made use of confidential information except for the incident concerning the appellant’s former wife. I will deal with that incident when I deal with question three. On the whole and for most of the trial, the appellant’s position at trial concerning Mr. Black’s role was at worst ambivalent. At different times he even consulted with Mr. Black and obtained advice from him.
[27] The thrust of the appellant’s objection to Mr. Black’s participation in the case was that on occasion he made submissions that the appellant perceived as contrary to his position. The following statement by the appellant is an example:
Your honour, right at the very beginning of the trial I have made a motion. I had given a wide explanation why I had fired Mr. Black, why I wanted him not to be in the court every time. He has given his opinion. His opinion has been against me. I made a mistake. If felt a sort of—some kind of feeling of I would offend the court if I insisted further, so that’s why I had taken my application back.
I want to make an application now that Mr. Black be removed, because I had—he had lost my confidence. His opinion every time has been going against me. His presence in the court is very, very prejudicial to my case…
[28] The trial judge dealt with the application by the appellant at that time in these terms:
I do not intend at this time to ask Mr. Black to absent himself as amicus curiae. In my view, Mr. Black to date has discharged his responsibility to the court in an exemplary manner in respect of legal submissions in the absence of the jury.
While his submissions have not always coincided with that of Mr. Samra or Mr. Hamalengwa on legal issues, Mr. Black’s submissions cannot, in my view, be said to have been in any way antagonistic to the best interests of Mr. Samra. Moreover, there is nothing to suggest that because of his past involvement with Mr. Samra, the nature and quality of the submissions made by Mr. Black to the court have in any way been compromised.
[29] In my view, the trial judge properly dealt with the appellant’s motion at that time and on other occasions when it was raised. He was presented with a difficult and unusual situation. It was apparent that Mr. Hamalengwa and another lawyer who also became the appellant’s legal advisor, Mr. Bonzi-Simpson, were not retained as, and were not acting as, defence counsel. Although they gave advice to the appellant and made submissions to the court on legal issues, they were not exercising any independent judgment. It seems that they had retained the appellant’s confidence by doing his bidding. I make no comment on whether they or any counsel should accept such a limited retainer. I merely point out that such is not the role of properly retained defence counsel.
[30] There is an erroneous premise underlying the appellant’s submissions in this case—that defence counsel is but a mouthpiece for his client. His argument must be that counsel is bound to make submissions no matter how foolish or ill-advised or contrary to established legal principle and doctrine, provided that is what the client desires. It is upon this premise that the appellant builds his argument that since Mr. Black made submissions in his role as amicus curiae with which the appellant disagreed, the trial judge erred in failing to discharge him.
[31] The mere fact that Mr. Black made legal submissions to the trial judge that did not coincide with what the appellant desired did not place Mr. Black in a disqualifying conflict of interest nor compromise the fairness of the trial. G. Arthur Martin, Q.C., in an address to The Advocates’ Society entitled “The Role and Responsibility of the Defence Advocate” and which is reported at (1970) 12 Crim. L.Q. 376 at 382, gave this explanation of the role of defence counsel:
The defence counsel is not the alter ego of the client. The function of defence counsel is to provide professional assistance and advice. He must, accordingly, exercise his professional skill and judgment in the conduct of the case and not allow himself to be a mere mouthpiece for the client.
[32] Arthur Maloney Q.C. took a similar view in “The Role of the Independent Bar”, 1979 Law Society of Upper Canada Special Lectures 49 at 61-2. After stressing the importance of the Bar’s independence from government, Mr. Maloney turned to the relationship with the client:
Of at least equal importance is the lawyer’s duty to remain independent of his own client. It is clear that there are some decisions that the client must make—such as whom to hire and what to plead. However, a lawyer must never allow himself to become a mere mouthpiece of his client.
[33] Had Mr. Black remained as counsel for the appellant he would have been entitled to make the legal submissions that he did, even over the objections of his client, and his conduct would not have compromised the fairness of the trial nor placed him in a conflict of interest. The fact that he made such submissions in his role as amicus similarly could not affect the fairness of the trial. The fact that the appellant had lost confidence in Mr. Black because his submissions did not coincide with the appellant’s wishes did not prevent Mr. Black from continuing to act as amicus curiae. The test is not whether the appellant believes he received an unfair trial but whether a reasonable bystander or observer would have that opinion: Hinchey v. The Queen (1996), 111 C.C.C. (3d) 353 at 403 (S.C.C.). A reasonable observer informed of the role of defence counsel and of amicus curiae would not consider that the submissions made by Mr. Black compromised the fairness of the trial. The trial judge did not err in law in dismissing the appellant’s applications to discharge Mr. Black as amicus curiae.
Question Three: Miscarriage of justice
[34] The final question is whether, even if the trial judge did not err in appointing Mr. Black and in dismissing the applications to discharge him, the appellant has shown that a miscarriage of justice resulted. The burden is on the appellant to demonstrate that he is entitled to a new trial on the ground that there was miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code. See R. v. Morrissey (1995), 97 C.C.C. (3d) 193 at 219 (Ont. C.A.).
[35] In dealing with this aspect of the appeal I consider it appropriate to attach some weight to the appellant’s failure to allege a conflict of interest when the question of Mr. Black’s appointment was raised. He was aware of the principle of conflict of interest because his first lawyer, Mr. Roach, was removed from the case for that very reason. Since the appellant did not allege a conflict of interest when the appointment was made, for the appellant to show a miscarriage of justice now, it is not sufficient that he point to a potential conflict or an appearance of a conflict. He must also show a conflict of interest and that his interests were adversely affected by Mr. Black’s conduct during the trial.
[36] In R. v. W. (W.) (1995), 100 C.C.C. (3d) 225 (Ont. C.A.), Doherty J.A. dealt with the submission that there had been a miscarriage of justice because two jointly indicted accused were represented by the same lawyer. While the issue was therefore different from the issue presented by this case, the nature of appellate review in the two cases is similar. He held as follows at pp. 238-39:
It is important to distinguish between the respective functions of a trial judge and an appellate court when faced with a conflict of interests claim. Where the issue is raised at trial, the court must be concerned with actual conflicts of interests and potential conflicts that may develop as the trial unfolds. In deciding whether counsel should be permitted to act for co-accused, trial judges must to some degree, speculate as to the issues which may arise and the course the trial will take. The trial judges' task is particularly difficult since they cannot be privy to the confidential discussions which may have passed between the clients and counsel and which may reveal the source of potential conflicts. Given those circumstances, trial judges must proceed with caution and when there is any realistic risk of a conflict of interests they must direct that counsel not act for one or perhaps either accused.
Where the allegation of a conflict of interests is raised for the first time on appeal, the perspective is very different. The appellate court looks backward at the completed trial. The court has the full trial record and may have further material detailing the circumstances surrounding the joint representation and the effects of that representation on counsel's ability to defend the appellant. Unlike the trial court, the appellate court is not concerned with prophylactic measures intended to avoid the potential injustice which may flow from compromised representation. Instead, the appellate court must determine whether counsel's representation was in fact compromised in such a way as to result in a miscarriage of justice. The concern on appeal must be with what happened and not with what might have happened. It makes no more sense to find ineffective representation, based on the possibility of a conflict of interest, than it does to find ineffective representation based on the mere possibility of incompetent representation.
…
The approach developed in Silvini, [R. v. Silvini (1991), 68 C.C.C. (3d) 251 (Ont. C.A.)] requiring that an appellant demonstrate an actual conflict of interests which produced some adverse effect on counsel's representation of that appellant, offers full protection against ineffective representation flowing from counsel's divided loyalties. In my view, Silvini is a correct statement of the applicable law. [Emphasis added.]
[37] Mr. Lockyer attempted to meet that burden by reference to many of the interventions by Mr. Black during the trial. He focused particularly on twelve instances where he submits there was either actual prejudice to the appellant or the appearance of unfairness. I need not deal with the instances where there was the mere appearance of unfairness. Those examples rest on the proposition that because Mr. Black made legal submissions opposed to the appellant’s apparent wishes there was an appearance of unfairness. I have already indicated why, in my view, merely making legal submissions did not undermine the fairness of the trial. Those submissions did not create any disqualifying conflict of interest nor have an adverse effect on the appellant.
[38] Of the occasions on which the appellant alleges that there was actual prejudice to his interests, in my view, only two need to be dealt with. The two instances concern the cross-examination of the Crown psychiatrist, Dr. Malcolm, and a problem with disclosure of a statement given by the appellant’s former wife. The other examples provided were patently harmless and in no way prejudiced the appellant’s interests. They represent nothing more than occasions where Mr. Black made submissions that supported the Crown’s position on an objection and the trial judge ruled in favour of the Crown. None of these rulings led to the wrongful introduction of evidence that prejudiced the appellant or prevented the appellant from leading admissible evidence.
i. Cross-examination of Dr. Malcolm
[39] As set out above, the appellant relied upon expert evidence to support his defence of lack of intent. The defence alleged that the appellant was in a depressed state and at the time of the shootings was in an altered state of mind to the point where it was doubtful that he knew what he was doing and in any event was incapable of planning and deliberating the killings. The defence called Dr. Long, a psychologist, and Dr. Cooper, a psychiatrist, to support the defence. Cross-examination of Dr. Cooper on a newspaper article constitutes a separate ground of appeal and I will elaborate on that evidence below.
[40] In reply to the defence evidence of the appellant’s mental state, the Crown called Dr. Andrew Malcolm. It was Dr. Malcolm’s opinion that the appellant probably suffered from a personality disorder, but that while he was under stress at the time of the shootings he would have been able to think clearly and was capable of planning and deliberation.
[41] The defence objected that Dr. Malcolm was not qualified and a voir dire was conducted in the presence of the jury concerning Dr. Malcolm’s qualifications. The appellant’s advisor, Mr. Bondzi-Simpson wished to cross-examine Dr. Malcolm on statements he had made in an article. In the article, Dr. Malcolm described the jury system as absurd and irrational and the jury trial as preposterous, archaic, hopelessly mystical, “an invention of soaring genius”. Crown counsel objected to the cross-examination on the basis that it was irrelevant to Dr. Malcolm’s qualifications and was calculated to annoy the jury. Mr. Black supported the Crown’s position. He submitted that the proposed cross-examination might not only inflame and insult the jury but also could “jeopardize the whole process” and precipitate an application for a mistrial. This led the trial judge to make these comments:
… I hadn’t thought of it in that light, but if you say that if the jury paradoxically enough accepted this man’s expertise and accepted also his evaluation of what it was that the jury had to decide here in terms of very issues of psychiatric evidence, and if they said that this expert thinks that we’re engaged in an exercise of absurdity, then far from protecting the interests of the accused, they may just say, well, a position on all these psychiatrists, they will be simply not helpful and the only contribution they may take from Dr. Malcolm, disregard the psychiatric evidence altogether, in which case out goes the evidence of Dr. Cooper and everybody else.
[42] The trial judge ultimately held that he would not permit the cross-examination. He considered that the excerpt from the article was irrelevant to Dr. Malcolm’s qualifications as an expert or “to any other issue in this trial which I can discern”. That was sufficient to dispose of the issue. The trial judge, however, went on to say that there was some danger that the jury, “if not offended by the views of Dr. Malcolm, may nevertheless be undermined in their confidence to discharge their function to deal with issues of mental disorder. And this, in turn, as Mr. Black has pointed out, may prejudice the position of the accused.” Following the ruling, the defence conceded that Dr. Malcolm was qualified.
[43] In my view, Mr. Black’s intervention did not prejudice the appellant nor lead to an unfair trial. The ruling with respect to Dr. Malcolm came near the end of this very lengthy trial. The trial judge had seen the two defence experts testify and was in a good position to determine whether the proposed cross-examination of Dr. Malcolm might prejudice the accused’s psychiatric defence. The appellant’s advisors argued otherwise and ordinarily a great deal of weight must be given to this kind of tactical decision by defence counsel. However, Mr. Hamalengwa and Mr. Bonzi-Simpson were not defence counsel. They were merely advising the appellant and taking instructions from him. It was certainly open to the trial judge to take the view that the course proposed by the appellant and his advisors was an ill-advised one and could in the result redound to the prejudice of the defence. The trial judge had a duty to ensure that the appellant received a fair trial notwithstanding the submissions of his advisors: R. v. Osolin (1993), 86 C.C.C. (3d) 481 at 524 (S.C.C.).
[44] In presenting the view of the case that he did, amicus was merely performing the role entrusted to him. His submissions did not make use of confidential information nor in any other way represent a conflict of interest. In his submissions, amicus presented a more objective view of the merits of the course proposed by the defence.
[45] The appellant’s submissions on this and several other of the objections really come to this: without Mr. Black’s interventions the trial judge might well have ruled the other way and since an appellate court has no way of knowing whether this is so, prejudice to the defence is established. I do not agree. The appellant’s argument confuses two different issues. If the trial judge erred in law in his ruling, this can be a distinct ground of appeal. No such argument was made in this case.
[46] In the alternative, the defence could argue that the process by which the decision was made was unfair. However, there is nothing unfair in amicus curiae making submissions that are of assistance to the court. The process followed by the trial judge was entirely fair and open. Thus, for example, with respect to the cross-examination of Dr. Malcolm, after Mr. Black made his submissions Mr. Hamalengwa was permitted to respond and did so. The principles of natural justice were protected by the procedures adopted by the trial judge. Mr. Black did not make use of confidential information and for the reasons already expressed, the fact that his submissions did not coincide with the appellant’s wishes was not unfair nor did it constitute prejudice.
ii. Disclosure concerning the appellant’s former wife
[47] Mr. Black’s submissions with respect to the appellant’s former wife raise a different issue. Mr. Lockyer submits that there was an actual conflict of interest in that Mr. Black disclosed confidential information that he had acquired when he was acting for the appellant. The problem developed in the following way.
[48] As noted earlier, in the weeks prior to the shooting, the appellant’s relationship with his wife was under considerable strain. It was the appellant’s evidence that on the morning of the shooting his wife issued him an ultimatum: he must either give up his community work and spend more time with his family or she would divorce him. It was the theory of the defence that this event contributed to the appellant’s altered mental state at the time of the shooting later in the day. By the time of the trial, the appellant and his wife were divorced. The appellant proposed to call his former wife as a defence witness after he had testified.
[49] In the course of the appellant’s examination-in-chief, the defence brought an application for a stay of proceedings as a result of non-disclosure by the Crown. It was alleged that the Crown had failed to disclose a number of items, including the notes of an interview by the police of the appellant’s former wife a few hours after the shooting. Mr. Hamalengwa learned of this interview for the first time when he interviewed Mrs. Samra prior to calling her as a witness. At this point, neither the defence nor Crown counsel had the notes of this interview. In the course of his submissions on the application for a stay of proceedings, Mr. Hamalengwa stated that the defence had proposed to call Mrs. Samra in the hope that she would support the appellant’s testimony. However, if she did not, the defence would have applied to treat her as a hostile witness.
[50] The trial judge pointed out that he had some difficulty seeing how the defence was irreparably prejudiced. Mrs. Samra had not yet testified and it was uncertain whether she would testify. The defence would have the notes of her interview before they had to decide whether to call her as a witness. Crown counsel also made it clear that he had no intention of calling Mrs. Samra, and since he had never seen the notes himself he had not made any use of them in the course of the trial. The trial was then briefly adjourned to give the police an opportunity to see if they could find the notes of the interview.
[51] Following the adjournment, a number of police reports were found and disclosed. As it turned out, there was nothing in these reports of any substance, except for one brief reference by Mrs. Samra to troubles with the marriage. Mr. Hamalengwa, however, submitted that the defence would have been conducted in an entirely different manner had this report been disclosed. The trial judge had considerable difficulty with this submission, especially since Mrs. Samra had not yet testified. I agree with the trial judge. The submission is patently without substance. Further, Mr. Hamalengwa also stated the following:
And we had difficulty in getting Mr. Samra’s former wife here because, after eleven years, we didn’t even know what she was going to say. We didn’t know whether she was going to acknowledge there was problems in the marriage. She might come here and say, “Our marriage was made in heaven. Don’t blame me for all these problems,” but had we had that statement, I asked for an adjournment. [Emphasis added.]
[52] Mr. Hamalengwa went on to say that the defence would have been “more forceful” in attempting to secure Mrs. Samra’s attendence had they known about the notes. These submissions too seem misconceived and without substance. The trial record demonstrates that prior to receiving this latest disclosure, the defence had taken the necessary steps to compel Mrs. Samra’s presence at the trial. Based on the record of proceedings to that point, the trial judge was bound to dismiss the motion to stay the proceedings, at least as it was based on the late disclosure of the police notes respecting Mrs. Samra.
[53] The difficulty arises from the submissions that Mr. Black then made. He disclosed that he was aware that Mr. Roach had hired a private investigator who spoke to Mrs. Samra and “her position was known”. Mr. Black stated that perhaps Mr. Hamalengwa was unaware of this.
[54] The appellant then made submissions seeking a mistrial on the basis of the delayed disclosure and what he alleged was a continuing failure to make full disclosure. He also stated that while he knew an investigator had attempted to talk to Mrs. Samra, he was unaware of the fruits of that investigation. The appellant stated that if Mr. Black had any other information it was obtained “in the light of the solicitor-client relation” and the appellant applied to have Mr. Black discharged as amicus curiae.
[55] At that point, the trial judge made it clear that he was not going to make any use of the information conveyed by Mr. Black and that he considered any of the results of the private investigator’s interviews were protected by solicitor-client privilege. The appellant then stated that he was "fully satisfied" that Mr. Black's comments would not have influenced the trial judge. That statement is very telling on the question of prejudice to the appellant.
[56] The trial judge in his ruling on the application to discharge Mr. Black said the following:
Mr. Black, in the context of this debate, stated that private investigators hired by the defence had approached Mrs. Samra. He did not state the nature of their communication with Mrs. Samra. It is Mr. Samra’s position that Mr. Black should not have divulged that fact, the knowledge of which was acquired while Mr. Roach represented the accused. For this reason, and for reasons previously expressed by him, he invites the court to remove Mr. Black as amicus curiae.
In ruling on the motions for a mistrial and a stay of proceedings, which were both based on a lack of disclosure by the Crown, I wish to state emphatically for the record that my decision to dismiss those motions did not depend in any way whatever on the fact that the defence had interviewed Mrs. Samra, because, as must be obvious, the contents of the interview have not been revealed and are privileged. In my opinion the referral to the fact that investigators were hired and approached Mrs. Samra by Mr. Black has not in any way prejudiced the position of the accused.
Accordingly, in my view there is nothing which requires me to discharge Mr. Black as amicus curiae. I am confident he will continue to provide the court with submissions on legal issues which support the positions advanced by the accused to the best of his ability. The application accordingly is dismissed.
[57] It seems to me that this incident raises two questions. First, was the appellant prejudiced by the disclosure of confidential information? Second, did the trial judge err in refusing to discharge Mr. Black in light of that disclosure?
[58] I have no difficulty with the first question. The trial judge did not make use of this information, nor did Crown counsel. The course of the trial was not influenced by the disclosure. The appellant himself acknowledged at the trial that he was not prejudiced by the disclosure of this information by Mr. Black. The trial judge was correct in dismissing the application for a mistrial or a stay of proceedings and it was not argued otherwise on this appeal. The delayed disclosure of the police interviews was explained by Crown counsel and the delay did not prejudice the defence case in any way. There was no possible basis for either a mistrial or a stay of proceedings. See R. v. Dixon (1998), 122 C.C.C. (3d) 1 (S.C.C.).
[59] As to the second question, I am not satisfied that the trial judge erred in failing to discharge Mr. Black from his duties as amicus curiae. It would seem from the dialogue between Mr. Black and the trial judge that he assumed Mr. Black believed he was bound to disclose the information as an officer of the court because Mr. Hamalengwa was misleading the court about what the defence knew about Mrs. Samra. As noted above, Mr. Hamalengwa had said, “we didn’t even know what she was going to say”.
[60] Just before making this statement, Mr. Hamalengwa had also expressly accused the Crown of a “cover-up” and of deliberately suppressing this and other evidence. He suggested that the Crown was guilty of an attempt to obstruct justice. These allegations by Mr. Hamalengwa were entirely without any foundation and should not have been made. They do, however, shed some light on why Mr. Black took the step of informing the court of the true state of affairs, as he believed them to be.
[61] I do not suggest that Mr. Hamalengwa’s improper conduct justified Mr. Black's breaching solicitor-client privilege, if he did so. I also need not decide whether, by making the submissions he did, Mr. Hamalengwa waived solicitor-client privilege with respect to this issue. That issue was not argued before us. Mr. Hamalengwa was not the appellant’s counsel and it is not entirely clear whether he had the authority to waive privilege.
[62] However, in the circumstances I have not been persuaded that the trial judge erred in refusing to discharge Mr. Black. This was the first and, as it turned out, the only time that an actual conflict of interest might have arisen and where possibly confidential information was disclosed. However, as I have said there was no adverse effect on the appellant’s defence as a result of that conflict of interest. The trial judge was satisfied that Mr. Black could still be of assistance and that his continued presence would not prejudice the appellant’s defence. In my view, he was entitled to come to this conclusion. As pointed out, the incident that lead to the disclosure by Mr. Black was unusual and precipitated by unfounded allegations by one of the appellant’s advisors. On this record, I do not think that any reasonable person fully informed would think there was an appearance of unfairness to the appellant or that there had been any miscarriage of justice.
[63] In light of that conclusion I need not decide whether Mr. Black actually was in a conflict of interest. I would, however, point out that it is not at all obvious that he was. It was not alleged that Mr. Black was in a conflict because of his duties to his former client and a new client but in a conflict because of his duties to the appellant and his duties to the court. That alleged conflict arose because of the, presumably innocent, misrepresentation made by Mr. Hamalengwa that the defence had no idea what Mrs. Samra would say. Even apart from the question of whether the appellant implicitly waived privilege, I have considerable doubt that this conflict between Mr. Black’s duty to his former client and his duty to the court was a disqualifying conflict of interest. It is not unusual that counsel may find themselves in a conflict between their duty to the client and their duty to the court. It has never been suggested that when such a conflict arises counsel is always disqualified from continuing to act in the case.
[64] In Demarco v. Ungaro et al. (1979), 21 O.R. (2d) 673 at 684-85 (H.C.J.) Krever J. referred to the following statement of a barrister’s duty to his client as explained by Lord Reid in Rondel v. Worsley, [1969] 1 A.C. 191 at 227–28:
Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. And by so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him. [Emphasis added.]
[65] Although Krever J. ultimately came to a different conclusion than did the House of Lords in Rondel v. Worsley concerning a barrister’s immunity from action by a client for negligence, I do not understand him as disagreeing with this statement, thus see p. 694 of DeMarco. Further, at p. 63 in the article previously referred to, Mr. Maloney adopted Lord Reid’s statement as a correct view of the duty “which in the interest of the proper administration of justice every counsel must discharge to the court”.
[66] I do not say that had Mr. Black remained silent in the face of the untrue representation made by the appellant’s agent he would necessarily have been in breach of his duty to the court. That is a difficult issue that was not argued here or in the trial court. I simply point out that in the peculiar circumstances of this case, the fact that Mr. Black made the disclosure did not preclude the trial judge from concluding that Mr. Black’s continued presence at the trial in his role as amicus curiae would not unfairly prejudice the appellant.
[67] I would not give effect to this ground of appeal.
THE CROSS-EXAMINATION OF DR. COOPER
The Facts
[68] As noted earlier, the defence called two experts: Dr. Allan Long, a psychologist, and Dr. Jerry Cooper, a psychiatrist. These experts were called to support the defence theory that the appellant was in an altered mental state at the time of the shootings and was incapable of formulating a plan to kill. As well, the defence contended that the appellant was in a such a distraught and depressed state and his thinking so confused that he might have mistaken a harmless gesture by Mr. Tatla and been provoked into shooting him and the other victims.
[69] It is unnecessary to set out the evidence of the experts at length. Suffice it to say that although Dr. Cooper’s evidence was subject to serious frailties,[1] it was important for the defence.
[70] The impugned cross-examination occurred at the beginning of Dr. Cooper’s testimony when the defence attempted to qualify him as an expert. Crown counsel challenged Dr. Cooper’s expertise and was permitted to cross-examine him in front of the jury on the contents of a newspaper article. The following portions of the article were read to Dr. Cooper:
[According to Dr. Andrew Malcolm] Some of my colleagues have apparently decided to play the game and become courtesans, court prostitutes, experts of easy virtue. In that case, let themselves be employed by either one of the adversaries and then pack a pile of lies on top of their genuine credentials for all the world to see.
…
It is hard to find a more flexible expert witness than Toronto psychiatrist Jerry Cooper, who, unlike many of his colleagues who seem to testify with great reluctance, loves the battle as no other.
He says candidly, “When I look at a case, I always ask the lawyer what he wants. When a lawyer is happy and his client is happy, then I’m happy.”
But he shudders when it is suggested that that sounds like ammunition for the hired gun theory.
…
Mr. Greenspan says he has noted an “institutional bias”: Psychiatrists who work in the world of the mentally ill have a tendency to see mental illness in various degrees wherever they look.
Dr. Cooper appears to give him credence when he says, “Depending on the defence (a lawyer wishes to offer), I can find anyone insane.
[71] Dr. Cooper testified that the comments in the article attributed to him came from a two-hour interview with the reporter in which he was attempting to be very candid. However, the reporter misinterpreted or misunderstood many of the things Dr. Cooper was saying. Dr. Cooper denied saying that he could find anyone insane. He provided several examples where, because of the opinion that he had given to defence counsel, he was not called to testify for the defence.
[72] Crown counsel justified this line of cross-examination before the trial judge on the theory that whether or not Dr. Cooper admitted that the statements attributed to him were true, his reputation had been sullied by the article. Since he did not sue for libel, that could only be because the statements were justified and therefore “that man is not worthy to be called an expert”.
[73] The appellant submits that this cross-examination was insulting and sarcastic. It is argued that much of the contents of the article were the opinions of other persons and simply inadmissible. Accordingly, the cross-examination improperly undermined Dr. Cooper’s credibility. The appellant also complains about the treatment of this evidence in the charge to the jury. The trial judge fairly and fully reviewed Dr. Cooper’s evidence and in the course of that review stated the following:
You will recall that Dr. Cooper was cross-examined as to his alleged views expressed in the Globe and Mail article. You will also recall he stated he was misquoted in respect of the quote attributed to him, namely, “depending on the defence the lawyer wishes to offer, I can find anyone insane.” The Globe and Mail did not print his request for retraction nor were there further steps taken by Dr. Cooper. It will be for you to assess the evidence of Dr. Cooper. Bias on the part of any witness may affect the weight which you attach to that witness. It will be for you to say if there is bias in this case, and if there is, what effect any such bias will have on the weight of any witness as a result.
[74] Mr. Lockyer argues that this direction was in error and that once Dr. Cooper denied making the “I can find anyone insane” statement that was the end of it and the jury should have been instructed to disregard the cross-examination.
Analysis
[75] I agree with the appellant that portions of the cross-examination should not have been permitted. The opinions of Dr. Malcolm and Mr. Greenspan about some psychiatrists were inadmissible hearsay. Dr. Cooper did not accept Dr. Malcolm’s opinion as true or as applying to him and in my view the fact that he did not sue the newspaper for libel cannot fairly be taken as an implied admission that the statement was true. The comment was inflammatory and should not have been put before the jury. The comment attributed to Mr. Greenspan is of a different nature and I did not understand Dr. Cooper to disagree with the opinion. The reference to that opinion was, in the context of the balance of the cross-examination, harmless.
[76] With respect to the comments attributed directly to Dr. Cooper, in my view, this cross-examination was proper. As I read that cross-examination, Dr. Cooper did not deny making the statement: “When I look at a case, I always ask the lawyer what he wants. When a lawyer is happy and his client is happy, then I’m happy.” To the contrary, he seems to concede that he did say it, although the reporter may have taken the comment out of context. This is how Dr. Cooper explained the comment:
As a doctor, I was going to say when you see a person and he’s a patient, you help the patient. You feel good about it. If a lawyer contacts me and I can assist, he is like the patient, I must admit that I feel I have helped the man, that is why you are in medicine, not to hurt people, to help people. So if you want to interpret that as being biased or you’re a hired gun, fine, that’s your interpretation of it. All I can state is that the reporter had the interview with me. I was being very candid. I thought he could understand what I’m saying. … As far as that is concerned, I feel quite comfortable in my statement. I agree, when you are able to assist someone who is a patient, whether it’s a lawyer, anyone, you feel better about it. There is no more fun in having spent a lengthy time saying to the lawyer, “I’m sorry, can’t be of assistance,” and what he does, he does hire, no doubt about it. There is the thing, they don’t get the opinion they want, they go to another doctor. [Emphasis added.]
[77] Further, while Dr. Cooper denied making the “I can find anyone insane” statement, when his testimony is viewed as a whole, it was open to the jury to find that he said something very much like that to the reporter, although again it may have been taken out of context. This is a part of his explanation:
Basically, I give an honest report, and what I have to say I say in terms of the report misinterpreting – insanity is a legal term, diseases of the mind is a legal term. It is the court and the jury who decides whether a person is mentally ill, not me. I’m asked directly – when I was making a comment anybody can mentally – nothing to do with insanity, I was saying that in a statistical manual in 1981 they even had normal personality. That sounds fine to clarify to the reporter. And this what he took out of it. But as I said, that I don’t have any problems with this [testifying in court]. I can deal with it. [Emphasis added.]
[78] I do not agree with Mr. Lockyer’s submission that the jury should have been instructed that since Dr. Cooper denied making the statements they should be ignored. Although Crown counsel did not call the reporter to prove the statements, it was open to the jury to find that Dr. Cooper admitted making the statements. It was then for the jury to determine whether those comments represented Dr. Cooper’s true point of view and the effect, if any, on Dr. Cooper’s credibility. As the trial judge told the jury, the comments appeared to indicate that Dr. Cooper had a bias in favour of the party who sought out his opinion and called him as a witness.
[79] Although I have found that the opinion attributed to Dr. Malcolm should not have been put before the jury I am satisfied that no substantial wrong or miscarriage of justice was occasioned. That comment merely set the stage for the balance of the cross-examination, which I have found to be proper. It was not referred to again in the charge to the jury. Dr. Cooper’s own admissions were far more damaging to his credibility than the somewhat inflammatory comment attributed to Dr. Malcolm. I would not give effect to this ground of appeal.
THE CHARGE TO THE JURY ON REASONABLE DOUBT
[80] The final ground of appeal concerns the trial judge’s charge to the jury with respect to reasonable doubt. On three occasions the trial judge told the jury that they were to look at all of the evidence and extract from it what they believe and accept and then make their findings. The appellant takes particular objection to the following portion of the charge dealing with the appellant’s state of mind:
You have to draw on inferences as to the state of a person’s mind and the state of his knowledge at any particular time. You draw inferences about the state of an individual’s mind from what he does what he says and how he acts in the existing circumstances as you find them to be. You look at all of that evidence, and you extract from it what you believe and accept, and then you make your findings as to what he did and how he behaved. [Emphasis added.]
[81] The appellant submits that the trial judge made the same error that this court identified in R. v. Miller (1991), 68 C.C.C. (3d) 517. In Miller, the trial judge by way of a graphic example instructed the jury to proceed by separate stages. The jury was told to consider all of the evidence as if it were in one big pile. They were then to go through the pile and determine those parts of the pile they accepted as “true and reliable”. This part of the pile was then removed from the larger pile. This second smaller pile became the facts or the source from which the jury made their judgment as to what the facts of the case were.
[82] This court found the example, and the numerous instances where the jury was told to confine themselves to evidence accepted as true and reliable, to be misdirection. The court held as follows at p. 543:
In the present case, the impugned direction did not instruct the jury to apply proof beyond a reasonable doubt in two stages. In our opinion, however, it was a misdirection to instruct the jury to examine the evidence in a first stage, to eliminate all evidence except that which the jurors accepted as true and reliable (a lower standard than proof beyond a reasonable doubt), and then to consider only the residual in arriving at their verdict. This involved the injection of artificial rules for the jury and constituted ''an intrusion into the province of the jury''. We believe it is wrong and prejudicial to confine the jury, in their initial findings of fact, to evidence accepted as true and reliable; evidence which is neither rejected nor accepted should survive to the final stage of the jury's determination on the crucial application of reasonable doubt.
In a case where credibility is vital, the jury should be told clearly what to do in the event of a reasonable doubt about credibility. Here, the jury was invited to proceed to their findings of fact on the basis of evidence accepted as true and reliable, and to exclude from their consideration evidence which they rejected.
[83] Counsel for the Crown conceded that the passage quoted above in this case amounted to misdirection. However, he invites the court to find that the error was harmless when the charge to the jury is considered as a whole. In Miller, this court was unable to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code by reference to the balance of the charge. The court reasoned as follows at p. 544:
In our opinion, the misdirection cannot be cured by a reading of the charge as a whole. As pointed out earlier, the jury was invited to consider in two stages the evidence favourable to the defence, including the appellant's statement and the evidence of the appellant's mother relating to an alibi, as well as the evidence relied on by the prosecution. We are of the view that a proper general direction as to the burden of proof on the Crown, as to reasonable doubt, and as to the presumption of innocence, cannot correct or neutralize a colourful but erroneous specific direction on the two-stage process which would strike the imagination of the jury. The apparent inconsistencies between the two directions would have been confusing at best, probably misleading the jury into thinking that reasonable doubt came into play only at the second stage of the deliberations, when considering evidence which they had not rejected at the first stage.
Although the learned trial judge, elsewhere in his charge, correctly instructed the jury on the doctrine of reasonable doubt and, in accordance with R. v. Challice (1979), 45 C.C.C. (2d) 546 at p. 557 (Ont. C.A.), instructed that unanimity was only required on their ultimate verdict and not on the findings of fact, we are satisfied that the confusing intrusion into the jury's fact-finding function was serious and that the verdict of the jury may well have been affected by it.
[84] In my view, assuming there was misdirection, this is a proper case to apply the proviso in s. 686(1)(b)(iii). The jury was instructed on more than one occasion that they were required to look at the whole of the evidence in making their findings of fact. The following is an example:
Findings of fact of necessity engage an examination of the whole of the evidence. As you appreciate having listened to and watched the evidence as it unfolded, evidence comes in various shapes and assorted sizes as it may appear in the sworn testimony of witnesses whose credibility you shall assess. You may believe some, none or all of the evidence of each and every witness who has here testified. Evidence may also appear in the form of physical exhibits or, for example, photographs, articles of clothing. These exhibits shall be furnished for your examination in your jury room, and you may assign as well such weight to them as you feel they deserve.
…
It is rather the total and cumulative effect of the evidence that must be compared to the burden of proof that the Crown is obliged to satisfy to determine whether the case against the accused has been proven beyond a reasonable doubt. It is only in the event that the totality of the evidence is considered that a proper and just conclusion may be reached. It is only in the event that the total and cumulative effect of the evidence, often greater than the sum of its individual parts, satisfies you beyond a reasonable doubt, that the guilt of the accused is the only reasonable inference from the proven facts that you can find the accused to whom such evidence relates guilty of the offence which has been so proved.
Whether your findings be based on direct evidence, on circumstantial evidence, or upon both types of evidence considered in combination, you must not make a finding in connection with any offence unless you are satisfied upon the whole of the evidence that the essential elements of such offence have been established beyond a reasonable doubt.
[85] The core of the error in Miller is that it is wrong and prejudicial to confine the jury, in their initial findings of fact, to evidence accepted as true and reliable. In my view, when the charge is read as a whole, the jury would have understood that they must consider all of the evidence, including the defence evidence, in making any of the critical findings of fact. Assuming the impugned instructions constituted misdirection, I am satisfied that no substantial wrong or miscarriage of justice resulted.
[86] The trial judge repeatedly and accurately instructed the jury as to the burden of proof beyond a reasonable doubt and that there was no burden on the defence to prove anything. For example, after instructing the jury that the Crown must prove each element of the offence beyond a reasonable doubt, the trial judge instructed the jury as follows:
If you should entertain a reasonable doubt about the proof of one or more of these essential elements, then you must find the accused not guilty of such offences as the Crown has failed to meet the legal burden cast upon it.
There is also, perhaps, a natural inclination to think that when mention is made, for example, of the defence of provocation, that since it is described as a defence, there rests upon the accused some onus or obligation of proof in connection with that defence. You must clearly understand that no such obligation or onus rests upon the accused in respect of any defence or any other issue. The obligation quite plainly runs the other way around. It falls to the Crown to prove beyond a reasonable doubt that the accused was not acting under provocation as our law describes those matters.
[87] Further, in relation to a conflict between the Crown and defence experts, the trial judge instructed the jury as follows:
In the final analysis it is for you to determine which expert evidence you accept and what weight you wish to attach to it. You ought not, however, simply cast aside the expert evidence without some cogent reason, particularly in cases where that evidence is not the subject of dispute between the parties in this case. If, however, there is a conflict between the expert called by the Crown and that called by the defence, as, for example, the difference in opinion between Dr. Long and Dr. Cooper on behalf of the defence and Dr. Malcolm on behalf of the Crown, as to whether the accused was capable of planning and deliberation, despite the effect of certain stressors or his personality disorders, a further instruction is required. Before you accept the opinion of Dr. Malcolm, called by the Crown, that the accused was capable of planning and deliberation, that he was thinking clearly, despite the effect of certain stressors or his personality disorders, you must feel sure that Dr. Malcolm’s opinion is correct beyond a reasonable doubt.
[88] Unlike Miller, the charge to the jury in this case did not contain the colourful but misleading example that would have led the jury to consider the evidence in two stages and reject all evidence at this first stage that was not true and reliable. On at least twenty-eight occasions the jury was told to look at all of the evidence in reaching their verdict. The portions of the charge about which the appellant complains are very similar to directions that the Supreme Court of Canada found to be free from error in R. v. Thatcher (1987), 32 C.C.C. (3d) 481. In that case, at pp. 515-6, Dickson C.J.C. dealt with a ground of appeal very similar to the argument made in this case:
The appellant also argues that the trial judge erred in putting the jurors to a choice between accepting the evidence of some witnesses or accepting the evidence of Thatcher, thereby reducing the burden of proof. This submission is based on this court's decision in Nadeau v. The Queen (1984), 15 C.C.C. (3d) 499 at p. 501, 14 D.L.R. (4th) 1 at p. 3, [1984] 2 S.C.R. 570 at pp. 572-3 where Lamer J., states:
The accused benefits from any reasonable doubt at the outset, not merely if "the two versions are equally consistent with the evidence, are equally valid". Moreover, the jury does not have to choose between two versions. It is not because they would not believe the accused that they would then have to agree with Landry's version. The jurors cannot accept his version, or any part of it, unless they are satisfied beyond all reasonable doubt, having regard to all the evidence, that the events took place in this manner; otherwise the accused is entitled, unless a fact has been established beyond a reasonable doubt, to the finding of fact the most favourable to him, provided of course that it is based on evidence in the record and not mere speculation.
The trial judge, during his charge to the jury, made specific references to the conflict between the evidence given by Thatcher, and that of Anderson, Mendell and Collver. He stated the following:
The final witness for the defence was the accused, Colin Thatcher. Both his examination-in-chief and cross-examination were very lengthy. I have been talking almost too long as it is and I do not propose to review his evidence in detail. Much of it related to the tape recording to which he admitted he was a party and you will determine whether you accept his version of the meaning to be attributed to the conversation he had with Gary Anderson.
Thatcher denies that he had anything to do with either of the two shootings of his wife and you will weigh his testimony against the other evidence before you and particularly I suggest against the evidence of Lynn Mendell and Anderson and Wilde.
The evidence of Thatcher is also in direct contradiction to that of Dick Collver with respect to the hiring of the hit man and it will be up to you to decide whose evidence you accept.
The Crown, quite properly, concedes that the passage, if it stood alone, would be bad in law as violating the principle in Nadeau. It submits, however, that such remarks have to be looked at in their context within the whole of the charge to the jury. More specifically, the Crown argues that the charge as a whole made it clear that the jury was not obliged to take a binary view of the evidence (accept or reject it) but had to give effect to reasonable doubt.
By my count, the trial judge correctly stated the reasonable doubt principle on at least 11 occasions during his charge to the jury. One such occasion was directly preceding the offending passages relied upon by the appellant. He said:
I must tell you that as a matter of law that it is not incumbent upon the accused to adduce evidence to satisfy you that an alibi has been proven. If evidence as to alibi raises a reasonable doubt as to the presence of Thatcher at the scene when the murder was committed you must give him the benefit of that doubt and conclude he was not there.
Moreover, early on in his charge he stated: “It is up to you to weigh the evidence of each witness, one against the other, and determine what you find to be true and reject what you do not believe” (emphasis added). When the offending passages are read with the above and subsequent admonitions, it is clear -- and, I believe, must have been clear to the jury -- that the trial judge means "accept beyond a reasonable doubt" when he refers to "accepting" Crown evidence, and means "accept as raising a reasonable doubt" when he refers to "accepting" defence evidence. I believe there was no error made when the charge is read as a whole. It is therefore unnecessary to deal with the Crown's submissions with respect to s. 613(1)(b)(iii) of the Code. [Italics in original; Underlining added.]
[89] It would have been preferable if the trial judge in this case had avoided instructing the jury to “extract from [all the evidence] what you believe and accept”. However, I am satisfied that when the charge is considered as a whole, the jury understood the burden and onus of proof and how it applied to the fact-finding process. I would not give effect to this ground of appeal.
DISPOSITION
[90] Accordingly, I would dismiss the appeal.
RELEASED: September 23, 1998
[1] Dr. Cooper acknowledged that he was at a significant disadvantage because he saw the appellant for the first time over a decade after the shootings. Throughout his testimony, Dr. Cooper suggests that the appellant is a very different person from the man who did the shootings. Dr. Cooper also acknowledged that his opinion was dependent on the accuracy of the appellant’s description of events and his thought processes at the time.