DATE: 20000329
                                                   DOCKET: C29343
 
                   COURT OF APPEAL FOR ONTARIO
 
              LASKIN, MOLDAVER and MacPHERSON JJ.A.
 
BETWEEN:                    )
                                   )    Gregory Brodsky, Q.C.,
HER MAJESTY THE QUEEN              )    Paul Burstein,
                                   )    James Stribopoulos and
               Respondent          )    Anthony Bryant
                                   )    for the appellant
- and -                            )
                                   )    James Ramsay, Shawn Porter
PAUL KENNETH BERNARDO              )    and Michal Fairburn
                                   )    for the respondent
               Appellant           )
                                   )
                                   )
                                   )    Heard:  March 27, 2000
                                   )
On  appeal from conviction by P. LeSage A.C.J.S.C., with a  jury,
dated September 1, 1995.
 
BY THE COURT:
 
[1]  After a trial before Associate Chief Justice LeSage and a
jury, the appellant Paul Bernardo was found guilty of the first
degree murders of Leslie Mahaffy and Kristen French.  He was also
found guilty of having kidnapped, unlawfully confined and
sexually assaulted each of the two young girls, and of having
offered an indignity to the dead body of Leslie Mahaffy.
[2]  The appellant appeals his convictions on all nine counts but
asks for a new trial only on the two counts of first degree
murder.  He admits, as he did at trial, that he kidnapped these
two teenage girls, and then confined them in his house while he
brutally sexually assaulted and humiliated them.  He maintains,
however, that he did not murder them, that Karla Homolka alone
was the murderer.  He says that he is guilty only of
manslaughter.  He argues that he was deprived of a fair trial on
the only real issue in this case:  whether the Crown had proved
beyond a reasonable doubt that he murdered or was a party to the
murders of Leslie Mahaffy and Kristen French.
[3]  The appellant submits that he was deprived of a fair trial
because of errors made by the trial judge in his rulings on
evidence, in his charge to the jury, and in the jury selection
process.  The appellant’s grounds of appeal may be summarized as
follows:
 
(a)              Alleged Evidentiary Errors:




1.  The trial judge erred in admitting as similar fact evidence the appellant’s use of a ligature during sexual intercourse with J.G.
 
2.  The trial judge erred in permitting the Crown to lead expert evidence on the “battered woman syndrome” and he compounded this error by failing to instruct the jury adequately on the limited use of this evidence.
  
3.  The trial judge failed to tell the jury that the Crown had improperly cross-examined the appellant on s. 13 of the Charter.
     
     (b)  Alleged Errors in the Charge to the Jury:




          1.  The trial judge misdirected the jury on the burden 
          of proof on the pivotal issue of who killed the girls.




          2.  The trial judge erred in leaving the Crown’s secondary
          theory of liability with the jury.




          3.  The trial judge failed to give a proper W.(D.) 
          instruction.   




          4.  The trial judge failed to adequately warn the jury 
          about the improper use of Homolka’s plea agreement.
     
     (c)  Alleged Error in the Jury Section Process:




          The trial judge did not follow the procedure for 
        challenges for cause and peremptory challenges, prescribed
        in s. 635(1) of the Criminal Code.




[4]  We found no merit in any of these grounds of appeal and
therefore we did not call on the Crown.  Here are our brief
reasons on each of the appellant’s submissions.




     (a)  The Evidentiary Issues




          1.  Similar fact evidence of J.G.




[5]  The trial judge permitted the Crown to call, as similar fact
evidence, the evidence of J.G., one of the appellant’s former
girlfriends.  J.G. began dating the appellant in 1984 when she
was 16 and he was 20 years old.  She testified about an incident
in the summer of 1986 when they were in the appellant’s parked
car.  She said the appellant demanded that she go into the back
seat, get on her knees and arch her back.  After she did so, the
appellant vaginally and anally raped her.  She testified that
while this took place the appellant put a twine around her neck
and pulled on it.  Although the appellant did not try to choke
her with the twine, J.G. said that it felt uncomfortable.  In his
evidence, the appellant insisted that the entire incident was
consensual and that he stopped using the twine when J.G. told him
that it hurt.
[6]  The trial judge permitted the Crown to lead this evidence to
support Homolka’s testimony about the appellant’s use of a
ligature on both Leslie Mahaffy and Kristen French.  He concluded
that the probative value of this evidence outweighed its
prejudicial effect.
[7]  In this court the appellant submitted that the evidence was
highly prejudicial and because it was not probative of who killed
the two girls it should not have been admitted.
[8]  In determining the admissibility of similar fact evidence, a
trial judge must balance the probative value of the evidence
against its prejudicial effect.  For that reason appellate courts
show “a high degree of deference” to the trial judge’s
determination.  See R. v. B. (L.); R. v. G. (M.A.) (1997), 116
C.C.C. (3d) 481 at 505 (Ont. C.A.).  In the light of that
deference we are not persuaded that the trial judge erred in his
ruling.
[9]  The evidence of J.G. had some probative value, admittedly
limited, in that it supported the evidence of Homolka that the
appellant used a ligature on Kristen French during his last
sexual assault of her before he killed her.  Against its
probative value the prejudicial effect of J.G.’s evidence was
minimal at best.  Indeed, looked at from a different perspective,
the evidence supported the appellant’s defence because he did not
use the ligature to kill J.G.
[10] In disposing of this ground of appeal, two other
considerations are important.  First, even if the appellant’s
conduct towards J.G. was not consensual, that conduct was far
less serious than that with which he was charged, much of which
he admitted at trial.  Thus, the evidence of J.G. would have had
little effect on the jury’s deliberations.  As the Crown wrote in
its factum, it was a minor feature of an overwhelming case
against the appellant.
[11] Second, the trial judge accurately instructed the jury on
the limited use of J.G.’s evidence, even telling the jury to
disregard whether the incident was consensual or not consensual.
[12] For these reasons we find no merit in this ground of appeal.




          2.  Expert evidence on the battered woman syndrome




[13] The trial judge ruled that the Crown could lead the evidence
of two expert witnesses, Dr. Jaffe and Dr. Hatcher, to explain
the battered woman syndrome and the associated post-traumatic
stress disorder.  The appellant submits that the trial judge
erred in permitting this evidence to be led and then compounded
his error by failing to properly instruct the jury on how they
could use the evidence.  We disagree.
[14] The trial judge’s ruling should be put in context.  The
Crown brought a broad ranging application to admit psychiatric
evidence concerning its main witness, Karla Homolka.  The trial
judge held that most of the expert evidence the Crown sought to
lead was inadmissible.  He did, however, permit the Crown to call
evidence about the battered woman syndrome and post-traumatic
stress disorder.  In the trial judge’s view, this evidence would
help the jury assess Homolka’s evidence and thus ultimately help
them decide who killed Leslie Mahaffy and Kristen French.
[15] In ruling the evidence admissible, the trial judge applied
the criteria in R. v. Mohan (1994), 89 C.C.C. (3d) 402 (S.C.C.).
He found the evidence relevant, necessary in the sense that the
evidence went beyond the ordinary experiences of jurors, and not
precluded by any exclusionary rule.  The defence conceded that
the two experts were properly qualified to give this evidence.
[16] Having ruled that the evidence was admissible, the trial
judge strictly limited the scope of the experts’ testimony.  He
precluded them from expressing an opinion on whether Homolka did
suffer from the battered woman syndrome or from post-traumatic
stress disorder.  It was for the jury to decide whether this
syndrome was valid, and even if it was, whether Homolka suffered
from it, and if so, what effect it had on her evidence.  We note
that both experts acknowledged that some of Homolka’s conduct
suggested that she was malingering.
[17] The appellant submits, however, that the trial judge should
not have admitted this evidence.  He argues that it amounted to
oath-helping, and that no expert testimony was needed to explain
Homolka’s conduct because she herself testified why she acted as
she did.  We do not accept this submission.  The battered woman
syndrome is a recognized psychiatric condition and expert
evidence explaining this syndrome has been admitted by many
courts since the decision of the Supreme Court of Canada in R. v.
Lavalee (1990), 55 C.C.C. (3d) 97.  The expert evidence in this
case would have helped the jury to determine whether there was an
explanation for what might be regarded by the average person as
conduct by Homolka that was inconsistent with that of a truthful
witness.  The syndrome explained how some people react to certain
experiences.  The jury would have had the benefit of this
explanation, among a host of other relevant considerations, in
assessing Homolka’s credibility.
[18] This expert evidence did not amount to oath-helping and
indeed, as we have said, the trial judge precluded the experts
from giving an opinion on whether Homolka suffered from this
syndrome.  We recognize that the effect of this expert evidence,
if the jury accepted the validity of the syndrome and that
Homolka suffered from it, might bolster her credibility.  As the
Supreme Court of Canada pointed out in R. v. Marquard (1993), 85
C.C.C. (3d) 193 at 229, that does not make the evidence any less
admissible.  The evidence was relevant not because it amounted to
an opinion on whether Homolka was telling the truth but because
it might explain her behaviour.
[19] Having admitted the evidence, the trial judge properly
instructed the jury on its use, both when the evidence was first
called and later in his charge.  We find no error in these
instructions.  Therefore, we do not give effect to this ground of
appeal.




          3.  Improper cross-examination of the appellant




[20] The appellant testified about an incident in 1991, when he
had released a hitchhiker after kidnapping and sexually
assaulting her.  In cross-examination the Crown suggested that
the appellant’s evidence was false and then asked the appellant
whether he knew that his evidence about this incident could not
be used against him at a subsequent trial because of s. 13 of the
Charter.
[21] In his factum the appellant submits that the Crown’s cross-
examination was improper and prejudicial.  He argues that the
trial judge should have instructed the jury that they could not
infer the appellant’s evidence was influenced by s. 13 of the
Charter.  Defence counsel at trial did not request this
instruction.
[22] Even if the Crown should not have questioned the appellant
about s. 13, his doing so caused no prejudice.  The incident with
the hitchhiker was inconsequential in this trial.  Moreover, in
the brief exchange between Crown counsel and the appellant on the
incident, the appellant said he did not even know about s. 13 of
the Charter and the trial judge said for the benefit of the
appellant and the jury, “It doesn’t matter.”  This ground of
appeal fails.




     (b)  Charge to the Jury




        1.  Misdirection on the burden of proof on the pivotal
            issue




[23] It was the appellant’s position at trial that he did not
kill Leslie Mahaffy or Kristen French.  To the contrary, he
claimed that both girls died while in the sole custody of
Homolka.  Whether the killings were intentional or the product of
misadventure, he could not say.  Regardless, it was never his
intention to kill the girls and he had no reason to believe that
Homolka would do so.  He did, however, concede that in the
circumstances, the essential elements of unlawful act
manslaughter had been made out in relation to each of the girls,
and defence counsel invited the jury to return verdicts of
manslaughter on both counts of first degree murder.
[24] The Crown, on the other hand, took the position that the
appellant killed both girls and that he was guilty of first
degree murder as a principal.  In the alternative, the Crown
maintained that if Homolka killed the girls, she was guilty of
first degree murder as a principal and the appellant was guilty
as a party to her offences pursuant to ss. 21(1)(b) and (c) of
the Criminal Code.
[25] Bearing in mind the position of the parties, in order to
determine the basis of the appellant’s liability, the jury was
initially required to determine whether the appellant was a
principal or party to the killings.  If the former, first degree
murder verdicts were inevitable.  If the latter, verdicts of
second degree murder and manslaughter were possibilities.
[26] In view of this, the appellant submits that the jury should
have been told that if they believed or had a reasonable doubt
that he was not the principal, then, depending upon their
findings, the jury could acquit him of first degree murder and
find him guilty of the lesser and included offences of second
degree murder or manslaughter.  As it is, the appellant submits
that the trial judge left the jury with the erroneous impression
that in order to find him not guilty of first degree murder, they
had to be satisfied beyond a reasonable doubt that Homolka was
the principal.
[27] In our view, there is no merit in this submission.  Although
it certainly would have been open to the trial judge to instruct
the jury along the lines suggested by the appellant, he was not
obliged to follow that course.  The trial judge chose a different
route to convey precisely the same message.  In essence, the
trial judge told the jury that if they were not satisfied beyond
a reasonable doubt that the appellant killed the girls, he could
only be convicted of first degree murder if the jury was
satisfied beyond a reasonable doubt that Homolka killed the
girls, that the killings amounted to first degree murder, and
that the appellant did what was necessary to make him a party to
first degree murder under ss. 21(1)(b) and (c) of the Code.
[28] The trial judge then explained how the appellant could be
found guilty as a party to second degree murder.  He told the
jury that in order to find the appellant guilty as a party to
second degree murder, they would have to be satisfied beyond a
reasonable doubt that Homolka killed the girls, that the killings
were intentional, and that the appellant did what was necessary
to make him a party to second degree murder under ss. 21(1)(b)
and (c) or s. 21(2) of the Code.
[29] Finally, the trial judge told the jury that if they were not
satisfied beyond a reasonable doubt that the appellant was guilty
as a party to second degree murder, he could nonetheless be found
guilty of manslaughter.  In our view, the trial judge’s
instructions on manslaughter, while correct, were really of no
moment in view of the appellant’s concession that he was guilty
of manslaughter.
[30] The instructions to which we have been referring are found in
a segment of the charge in which the trial judge, after taking
mid-charge objections, revisited his earlier legal instructions
and replaced them with a clear and comprehensive road map
covering all the possible bases on which the appellant could be
found liable.  Notably, in oral argument, Mr. Burstein, on behalf
of the appellant, conceded that he could find no fault with these
instructions.  In support of his submission that the trial judge
shifted the burden of proof on the pivotal issue of who killed
the girls, he referred to an earlier passage in the charge to
illustrate the alleged error:




If the situation occurred as the other scenario, as 
the accused has expressed, or if you are left on a 
reasonable doubt in that issue, then you would consider 
whether the accused is guilty of any offence.  You would 
consider whether or not the accused, if he tied her, 
according to the testimony that he gave, to the hope 
chest, which would be an unlawful act of confinement and 
assault, whether or not there would be a reasonable
forseeability that leaving Kristen French in that position 
would cause, could cause bodily harm that is neither 
transitory or trivial.  If that were the case you are 
satisfied of that beyond a reasonable doubt, he would be 
guilty of manslaughter.




[31] Mr. Burstein submits that the last sentence in this passage
supports his position that the jury was erroneously led to
believe that they could only find the appellant guilty of
manslaughter if they were satisfied beyond a reasonable doubt
that Homolka killed Kristen French.
[32] In our view, far from supporting the appellant’s position,
the passage in question belies it.  In effect, the trial judge
told the jury that if they believed or had a reasonable doubt
that the appellant did not kill Kristen French, they could find
him guilty of manslaughter only if they were satisfied, beyond a
reasonable doubt, that the essential elements of unlawful act
manslaughter had been made out against him.  That instruction
fully complies with the approach endorsed by the appellant.
[33] In sum, we are satisfied that the jury was properly
instructed on the burden of proof on the pivotal issue and we
would not give effect to this ground of appeal.


        2.  Was there an evidentiary basis for the Crown’s
            secondary theory of liability?




[34] The appellant argues, for the first time on appeal, that
there was no evidentiary basis for the Crown’s secondary theory
of liability.  Accordingly, he submits that it was improper for
Crown counsel to invite the jury to act on a theory that
contradicted the evidence of its main witness Homolka and that it
was also wrong for the trial judge to leave the secondary theory
of liability with the jury.
[35] We see no merit in these submissions.  Leaving aside the
direct evidence of Homolka and Bernardo, there was ample
circumstantial evidence from which the jury could infer that the
two were acting in concert when the girls were killed, either as
co-principals or as a party to the other’s offence.  Indeed, in
one of his objections to the charge, defence counsel recognized
that it was open to the jury to draw this very inference:




DEFENCE COUNSEL:  What if the jury finds that they both 
did one or both of the killings?  In other words, that it 
wasn’t just the accused who was strangling.  It was maybe 
Miss Homolka was holding the legs or vice versa of Leslie 
Mahaffy.  There isn’t any direct evidence of that, but 
let us assume for the moment that they infer from all the 
circumstances that they’re two equal partners who are 
participating in the causing of the death and so forth.




        3.  The W. (D.) instruction




[36] After reminding the jury that the onus of proof rested on
the Crown throughout, the trial judge instructed the jury in
accordance with the principles enunciated in R. v. W. (D.)
(1991), 63 C.C.C. (3d) 397 (S.C.C.) as follows:
          
          The onus is on the Crown to establish its 
        case beyond a reasonable doubt.  If you accept 
        the evidence of the accused, then obviously you 
        would not find him guilty of first degree murder. 
        … Even if you don’t accept the evidence of the 
        accused, and there is no onus on him to establish 
        anything, even if his evidence simply raises a 
        doubt in your mind on the issues that the Crown 
        must establish, the essential elements of the crime,
          then he is entitled to a benefit of that doubt.
          
          The third stage of it is this, that even
          if you not only did not accept the evidence
          of the accused, his evidence didn’t raise a
          reasonable doubt in your mind, that doesn’t
          answer the questions you have to answer.  You
          must look at the evidence you did accept, and
          ask yourself:  On the evidence I do accept,
          am I satisfied beyond a reasonable doubt that
          the Crown has proved the essential elements
          of the crime?  It’s a way of expressing the
          fact that there’s no onus on an accused to
          prove anything.  The onus is on the Crown.


[37] The appellant submits that segments one and two of this
instruction were wrong because the jury was led to believe that
they should look at the appellant’s evidence in isolation in
deciding whether it was believable or raised a reasonable doubt.
[38] We disagree.  The instructions given by the trial judge were
precisely those suggested by Cory J. in W. (D.).  While recent
authorities have refined those instructions to make it clearer
that the jury should consider the whole of the evidence that
favours the accused in deciding whether his or her testimony is
believable or raises a reasonable doubt, the trial judge can
hardly be faulted for using the very language endorsed by the
Supreme Court of Canada.  Moreover, when the instructions are
considered as a whole, the jury would not have been misled into
thinking that they could only look at the appellant’s evidence in
isolation in deciding whether it raised a reasonable doubt.
Accordingly, we would not give effect to this ground of appeal.




        4.   Failure to adequately warn the jury about the
             improper use of Homolka’s plea agreement




[39] In examination-in-chief, Crown counsel reviewed with Homolka
the details of the plea agreement negotiated on her behalf.  On
consent, the agreement was made an exhibit.
[40] Several of the clauses in the agreement required that
Homolka provide a full and truthful account of her involvement in
the deaths of Leslie Mahaffy, Kristen French and Tammy Homolka,
failing which she could be prosecuted for various criminal
offences.  In addition, clause (A)8 of the agreement read as
follows:




If the authorities learn through any means that 
your client has caused the death of any person, 
in the sense of her stopping life, any proposed 
resolution will be terminated at the suit of the 
Crown, regardless of the state the process is at.




[41] In his charge, the trial judge referred to the agreement as
perfectly valid and legitimate but he warned the jury that it
could not be used to bolster Homolka’s credibility:
          
The plea agreement had a number of components
to it including that, that part of which was that 
Miss Homolka would testify at trial.  If you look
at that plea agreement it says in a number of
places that she will be truthful, that she will
tell the truth, that she will testify and be
truthful, et cetera.  You can’t use that agreement
to therefore say therefore she’s, she’s credible
because she agreed to be credible.  That, that’s not
logical.
          
Disregard those words in assessing her credibility.  
You’ll decide and assess her credibility on the 
evidence that she gave here and your assessment of 
her, and how that fits in to the whole scenario of 
events that you have as you find them to be.




[42] The appellant takes no issue with this instruction.  He
maintains, however, that the trial judge should have gone further
and told the jury that they could not use clause (A)8 or the
other clauses in the agreement that addressed sanctions for not
telling the truth “as a signal of the Crown’s apparent
satisfaction that Homolka had not caused the death of any person,
in the sense of her stopping life.”
[43] We disagree with this submission.  Although Crown counsel
presented Homolka as a truthful witness in support of its primary
theory that Bernardo strangled both girls, the Crown’s secondary
theory was premised on a finding that Homolka was the person who
“stopped the life” of the two girls.  This can hardly be
characterized as improper vouching on the Crown’s part.
[44] Moreover, in his closing address, Crown counsel sought to
distance himself from the plea agreement.  He went so far as to
tell the jury that on her own evidence, Homolka was guilty of
first degree murder.  He then continued:




CROWN COUNSEL:  You can see from the evidence the 
police had little more than Homolka on which to base 
murder charges against the accused at that time.  
There were no videotapes then.  They were hidden.
Had the videotapes been available to the authorities 
then, don’t you think that Homolka would be in that
box with him today?  This situation has changed 
drastically since and in its course.




[45] As this passage illustrates, far from putting a personal
stamp of approval on the contents of clause (A) 8 of the
agreement, Crown counsel resiled from it.  Accordingly, we would
not give effect to this ground of appeal.




     (c)  Jury Selection Issue




[46] The appellant contends that the trial judge misinterpreted
and misapplied s. 635(1) of the Criminal Code during the jury
selection process.  Section 635(1) reads:




635.(1)  The accused shall be called on before the
prosecutor is called on to declare whether the accused 
challenges the first juror, for cause or peremptorily, 
and thereafter the prosecutor and the accused shall be 
called on alternately, in respect of each of the 
remaining jurors, to first make such a declaration.




[47] The appellant submits that the plain meaning of this section
is that both parties must exhaust both challenges - for cause and
peremptory - with alternating prospective jurors before the other
side is called upon to make its declaration.  Thus, in this case,
once the trial judge had approved of the accused’s proposed
questions for a challenge for cause of prospective jurors, the
appellant’s position is that the Crown should have been required
to make its decision, with respect to alternating prospective
jurors, on whether to challenge peremptorily before the challenge
for cause took place.
[48] The trial judge stated that the accused’s interpretation of
s. 635(1) of the Code was “not illogical nor without merit”.
However, he indicated that this interpretation was contrary to
the practice of other trial judges in Ontario, who accepted and
applied the interpretation of s. 635(1) articulated by Adams J.
in R. v. Aguilera (1993), 87 C.C.C. (3d) 474 (Ont. Gen. Div.).
He also pointed out that he was not aware of any court elsewhere
in Canada which had interpreted s. 635(1) in the fashion
suggested by the accused.  Thus, the trial judge concluded:




The challenge for cause will follow the same procedure 
as has been followed in this province for many years.  
The Crown and defence will be asked to use their 
peremptory challenges after each prospective juror is 
challenged for cause.




[49] We agree with the trial judge’s interpretation of s. 635(1)
for the following reasons.
[50] First, the wording of s. 635(1) supports the trial judge’s
interpretation.  Although the appellant’s interpretation is not
without merit, the use of the word “or” between the words “for
cause” and “peremptorily” coupled with the words “a declaration”
[our emphasis] at the end of the provision suggest that the
challenge for cause procedure should proceed first and continue
until it is completed for each prospective juror before either
party is required to decide whether to exercise a peremptory
challenge.  We also suggest that this interpretation is
supported, admittedly in a minor way, by the fact that the words
“for cause” precede the word “peremptorily” in s. 635(1).
[51] Second, there is a fundamental difference between a
challenge for cause and a peremptory challenge.  The former
relates to a process, initiated by one of the parties, to obtain
an impartial jury, i.e. a jury composed of persons who are
qualified to be jurors.  The latter relates entirely to the
discretion of the parties.  A challenge for cause is designed to
remove from the jury panel those individuals who, for this trial,
should not be permitted to serve on the jury.  They are people
who the parties and the court would not regard as qualified to
serve.  As expressed by McLachlin J. in R. v. Williams (1998),
124 C.C.C. (3d) 481 at 488 (S.C.C.):




The prosecution and the defence are entitled to 
challenge potential jurors for cause on the ground 
that “a juror is not indifferent between the Queen 
and the accused”.  Lack of “indifference” may be 
translated as “partiality”, the term used by the 
Courts below. “Lack of indifference” or “partiality”, 
in turn, refer to the possibility that a juror’s 
knowledge or beliefs may affect the way he or she 
discharges the jury function in a way that is improper 
or unfair to the accused.  A juror who is partial or 
“not indifferent” is a juror who is inclined to a certain 
party or a certain conclusion.




[52] A peremptory challenge, on the other hand, is exercised on
an entirely different basis.  The result of a peremptory
challenge is that a prospective juror who the court and one party
might regard as impartial and, therefore, well-suited to serve on
the jury will in fact not serve because of the other party’s
exercise of its discretion.
[53] In our view, given the crucial difference between the two
categories of challenge, it is desirable to deal with the
challenge for cause first (to remove ‘partial’ prospective
jurors) before proceeding to the peremptory challenge (where
impartial jurors might be excluded through the exercise of one
party’s discretion).
[54] Third, Mr. Bryant commenced his submission on this issue by
stating that a fundamental goal of the rules of the jury
selection process is that they apply equally to both sides.  We
agree.  He further submitted that in a case where the accused was
permitted to challenge for cause and the Crown did not seek to
challenge for cause, the Crown would receive an unfair advantage
because it would have additional information from the accused’s
challenge for cause which it could use in deciding whether to
make a peremptory challenge.
[55] We agree with Mr. Bryant’s factual statement but not with
the conclusion he seeks to draw from it.  It is true that the
Crown will possess more information about the prospective jurors
before it makes its decision whether to exercise a peremptory
challenge.  However, so will the accused.  Indeed, the accused
will possess precisely the same additional information about
prospective jurors.  In short, the challenge for cause
proceedings will provide both the Crown and the accused with
identical additional information, which they can use as they turn
to the peremptory challenge component of the jury selection
process.
[56] Fourth, counsel on the appeal was unable to cite any
reported case in Canada that has adopted the appellant’s
suggested interpretation of s. 635(1).  It seems clear that the
long-standing practice of Canadian trial courts is consistent
with the manner in which the trial judge in this case conducted
the jury selection process.
[57] For these reasons, we are satisfied that the trial judge
correctly interpreted s. 635(1) of the Criminal Code.
Conclusion
[58] The nature of the crimes and evidence probably made this one
of the most difficult jury trials in Canadian legal history.  The
nature of the evidence made this a wrenching and draining
experience for counsel, court staff, the trial judge and jurors
and, especially, the families of the two young victims.
[59] In our view, the trial judge presided over this difficult
trial with great skill and fairness.  We are convinced that the
appellant received a fair trial.
[60] The appeal is dismissed.
                                               “J.I. Laskin J.A.”
                                             “M.J. Moldaver J.A.”
                                             “J. MacPherson J.A.”

Released:  March 29, 2000