R. v. Hibbert, [2002] 2 S.C.R. 445,
2002 SCC 39
Kenneth Roydon Hibbert Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Hibbert
Neutral citation: 2002 SCC 39.
File No.: 28021.
2001: October 10; 2002: April 25.
Present: McLachlin C.J. and L’Heureux‑Dubé,
Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for british columbia
Criminal law – Evidence – Identification – Alibi –
Accused convicted of attempted murder – Trial judge erring in instructing jury
that they could infer guilt from disbelieved alibi – Whether Court of Appeal
erred in applying curative proviso – Whether Court of Appeal erred in finding
no reversible error in trial judge’s instructions on issue of identification —
Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (b)(iii).
A real estate agent was a victim of a brutal attack
while she was holding an open house. In the course of touring the house, a man
provided the victim with numerous personal details. The victim took the man
into the garage. When she went to plug in a light, the man struck her from
behind, beat her, and strangled her until she was unconscious. The Crown’s
case against the accused was based largely on circumstantial evidence and
essentially rested on the victim’s knowledge of the personal details of the
accused’s life; on the in‑court identification of the accused by the
victim and a neighbour who saw the assailant leaving the residence; on DNA
evidence that linked both the accused and the victim to a cap found hanging in
a tree on the assailant’s escape route; and on various other pieces of
circumstantial evidence that cumulatively point to the accused as the assailant.
In his first trial, the accused was convicted of attempted murder by a jury,
but the Court of Appeal set aside the conviction and ordered a new trial. In a
second jury trial, the subject of this appeal, the accused was again
convicted. He appealed that conviction, again alleging weaknesses in
identification evidence and errors in the instructions to the jury about the
evidence of identification. In addition, he alleged that the trial judge erred
in telling the jury they could infer guilt from a disbelieved alibi when there
was no extraneous evidence of fabrication or contrivance. The Crown conceded
that the trial judge’s instructions on alibi were in error but the Court of
Appeal applied the curative proviso of s. 686(1) (b)(iii) of the Criminal
Code and dismissed the appeal.
Held (L’Heureux‑Dubé
and Bastarache JJ. dissenting): The appeal should be allowed and a new trial
ordered.
Per McLachlin C.J.
and Gonthier, Iacobucci, Major, Binnie, Arbour and LeBel JJ.: The trial
judge’s directions to the jury on identification evidence were not so deficient
as to constitute an error of law. In the circumstances of this case, however,
the trial judge should have cautioned the jury more strongly that the
identification of the accused in court was highly problematic as direct
reliable identification of the perpetrator of the offence. It is important to
remember that the danger associated with eyewitness in‑court
identification is that it is deceptively credible, largely because it is honest
and sincere. The dramatic impact of the identification taking place in court,
before the jury, can aggravate the distorted value that the jury may place on
it. The instruction to the effect that such identification should be accorded
“little weight” does not go far enough to displace the danger that the jury
could still give it weight that it does not deserve. In this particular case,
it would have been prudent to emphasize for the benefit of the jury the very
weak link between the confidence level of a witness and the accuracy of that
witness. Moreover, it should also have been stressed that the impact of the
victim having seen the accused arrested by the police as her alleged assailant
could not be undone. Nor could she be expected to divorce her previous recollection
of her assailant from the mental image that she formed after having seen the
accused on television.
The Crown properly conceded that the trial judge’s
instructions on alibi were in error in the absence of evidence that the accused
was implicated in putting forward a fabricated alibi. The law with respect to
the rejection of a defence of alibi may be summarized as follows. In the
absence of evidence of concoction (deliberate fabrication) an alibi that is
disbelieved has no evidentiary value. A disbelieved alibi is insufficient to
support an inference of concoction or deliberate fabrication. There must be
other evidence from which a reasonable jury could conclude that the alibi was
deliberately fabricated and that the accused was involved in that attempt to
mislead the jury. It is the attempt to deceive, and not the failed alibi, that
supports an inference of consciousness of guilt. In appropriate cases, for
instance if there were multiple accused, the jury should be instructed that the
fabricated alibi may be used to place the accused at the scene of the crime,
but may fall short of directly implicating him in its commission. When there
is evidence that an alibi was fabricated, at the instigation or with the
knowledge and approval of the accused, that evidence may be used by the jury to
support an inference of consciousness of guilt. In cases where such an
inference is available, the jury should be instructed that it may, not must, be
drawn. A fabricated alibi is not conclusive evidence of guilt.
The curative proviso cannot be used to overcome the
erroneous instructions on the defence of alibi in this case. The error was not
a trivial error nor one that would be unlikely to have had any effect on the
verdict. The trial judge’s erroneous instructions implied that the jury could
find evidence of concoction allowing them to infer that the accused was
guilty. This is a serious error that provided the jury with a direct route to
guilt. Despite the circumstantial evidence that points to the accused, it
cannot be confidently said that a conviction is a foregone conclusion in the
sense that any other reasonable jury would inevitably convict.
Per L’Heureux‑Dubé
and Bastarache JJ. (dissenting): The trial judge’s directions to the jury on
identification evidence did not constitute an error of law. Moreover, her
warning in this regard was adequate. The trial judge’s direction to the jury
pointed out the general and specific problems with the identification evidence
while at the same time respecting the role of the jury to weigh the evidence
that was properly before it. With regard to the in‑court identification
of the accused, the trial judge clearly explained to the jury the possibility
that the witnesses recognized the accused from their memory of the photographic
line‑up or newscast rather than from the scene of the crime. She
instructed the jury that for this reason the in‑court identification was
entitled to little weight. This instruction was appropriate because it pointed
out to the jury the weaknesses associated with the evidence without encroaching
on the jury’s essential function as the trier of fact. Whether the victim was
able to identify the accused as her assailant, or whether she was merely
identifying him as the man she saw being arrested and at previous hearings, was
ultimately a question for the jury to answer.
The question to be asked when considering the
application of the proviso is whether there is any reasonable possibility that
the verdict would have been different had the error at issue not been made. In
answering this question, the strength of the Crown’s case, otherwise stated as
“the legally admissible evidence untainted by the error”, is one factor to be
considered, along with the seriousness of the error in question and the effect
it likely had upon the jury’s inference‑drawing process. The Crown’s
case was a strong one. More importantly, the trial judge mitigated the
seriousness of the error contained in the then standard jury instructions by
tailoring the instruction to the particular circumstances of the case. The
trial judge instructed the jury that they could draw an inference of guilt if
they concluded that the alibi put forward by the accused was false and was put
forward to deceive them, an instruction that was erroneous in the absence of
independent evidence of fabrication or concoction. She nevertheless went on to
remind the jury that the Crown did not suggest concoction or fabrication. The
trial judge in effect neutralized the impact of the error by immediately
withdrawing it from the jury’s consideration. When the error in the trial
judge’s instructions on alibi is considered in the context of the charge as a
whole and against the background of the entire trial, it is evident that there
was no reasonable possibility that the error would have impacted upon the
reasoning process of the jury. Given the trial judge’s charge in its entirety
and the circumstances of this particular case, the danger of a miscarriage of
justice arising from the trial judge’s misdirection on alibi was more
theoretical than real. The test for the application of the proviso is not
whether it is in theory possible that the verdict would have been different had
the error not be made, but rather whether there is a reasonable possibility
that the verdict would have been different taking into account the background
of the whole trial. Applying the proviso in the circumstances of this trial
even though it was not applied in the first trial creates no inconsistency.
Having determined that there was no real possibility that the error in question
affected the reasoning process of the jury, it is only logical to conclude that
the accused was convicted because the evidence against him was overwhelming.
Cases Cited
By Arbour J.
Referred to: R. v.
Tessier (1997), 113 C.C.C. (3d) 538; R. v. Davison (1974), 20 C.C.C.
(2d) 424; R. v. Witter (1996), 105 C.C.C. (3d) 44; R. v. Coutts
(1998), 16 C.R. (5th) 240, leave to appeal dismissed, [1999] 1 S.C.R. xii; R.
v. Krishantharajah (1999), 133 C.C.C. (3d) 157; R. v. Carey (1996),
113 C.C.C. (3d) 74; R. v. Michaud, [1996] 2 S.C.R. 458; R. v. Hibbert
(1996), 78 B.C.A.C. 277; Colpitts v. The Queen, [1965] S.C.R. 739; Wildman
v. The Queen, [1984] 2 S.C.R. 311; R. v. B. (F.F.), [1993] 1 S.C.R.
697; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. Charlebois, [2000] 2
S.C.R. 674, 2000 SCC 53; R. v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86.
By Bastarache J. (dissenting)
Mezzo v. The Queen,
[1986] 1 S.C.R. 802; R. v. Turnbull, [1976] 3 All E.R. 549; Canning
v. The Queen, [1986] 1 S.C.R. 991; R. v. Gagnon (2000), 136 O.A.C.
116; R. v. Charlebois, [2000] 2 S.C.R. 674, 2000 SCC 53; R. v.
Edwardson (1993), 77 B.C.L.R. (2d) 362; R. v. Bevan, [1993] 2 S.C.R.
599; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Jolivet, [2000] 1
S.C.R. 751, 2000 SCC 29; R. v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86; Mahoney
v. The Queen, [1982] 1 S.C.R. 834; R. v. Tessier (1997), 113 C.C.C.
(3d) 538; R. v. Krishantharajah (1999), 133 C.C.C. (3d) 157; R. v.
Demeter (1975), 25 C.C.C. (2d) 417; R. v. Hibbert (1996), 78
B.C.A.C. 277.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (b)(iii) [am. 1991, c.
43, s. 9 (Sch., item 8)].
Authors Cited
Cory, Peter deCarteret. The
Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and
Consideration of Entitlement to Compensation. Winnipeg: Manitoba Justice,
2001.
Ferguson, Gerry A., and John
C. Bouck. Canadian Criminal Jury Instructions, vol. 2, 2nd ed.
Vancouver: Continuing Legal Education Society of British Columbia, 1989
(loose-leaf updated November 1993).
APPEAL from a judgment of the British Columbia Court
of Appeal (2000), 134 B.C.A.C. 281, [2000] B.C.J. No. 392 (QL), 2000 BCCA 144,
dismissing the accused’s appeal from his conviction for attempted murder.
Appeal allowed and new trial ordered, L’Heureux‑Dubé and Bastarache JJ.
dissenting.
J. M. Peter Firestone and Catherine Tyhurst, for the appellant.
Kate Ker, for the
respondent.
The judgment of McLachlin C.J. and Gonthier,
Iacobucci, Major, Binnie, Arbour and LeBel JJ. was delivered by
Arbour J. —
I. Introduction
1
The appellant appeals his conviction by a jury on a charge of
attempted murder. The principal issue in this appeal is the application of s.
686(1) (b)(iii) of the Criminal Code,
R.S.C. 1985, c. C-46 (the proviso). The Crown concedes
that the trial judge erred in her instructions to the jury on the defence of
alibi. The question is whether that error, in itself, or combined with other
errors alleged by the defence, necessitates a new trial, or whether, as the
Court of Appeal found, the Crown’s case was so strong that the jury would
inevitably have convicted had the error not been made.
2
In my view, s. 686(1) (b)(iii) cannot be applied in this case to
preserve the conviction and the verdict of the jury must be set aside. As is
common in these types of cases, the evidence must be reviewed in some detail in
order to assess the nature and likely impact of the errors in the charge.
II. Overview
3
On October 24, 1993, Janet McLeod, a real estate agent, was a victim of
a brutal attack while she was holding an open house at 151 Campbell Street in
Duncan, British Columbia. A man she described as wearing a felt-type English
driving hat (described in other evidence as an “Andy Capp” style hat) arrived
by himself to visit the house at approximately 3:00 p.m. In the course of
touring the house, the man provided Mrs. McLeod with numerous personal details,
including that he lived nearby on Trunk Road with his wife and two daughters
aged 13 to 15, that he had moved to Duncan from Ontario, and that he was
waiting for a military pension to be issued. Mrs. McLeod took the man into the
garage to explain how it could be converted into an extra bedroom. When she
went to plug in a light, the man struck her from behind, beat her, and
strangled her until she was unconscious. Mrs. McLeod was severely beaten with
a blunt object swung with tremendous force. The evidence suggested that after
the beating, the assailant left the garage to clean himself in the house, and
then returned and tied an electrical cord around her neck. She was found in a
pool of blood by neighbours who heard the commotion. The attack was vicious
and Mrs. McLeod’s injuries were life threatening.
4
The appellant, Mr. Hibbert, was interviewed by the police on the morning
of November 3, 1993. He was arrested that same day and a warrant to search his
residence was executed. He was released and then arrested a second time on
December 14, 1993. He has been in custody since that time.
5
On December 20, 1994, Mr. Hibbert was convicted of attempted murder by a
jury in a trial presided by Hutchison J. of the Supreme Court of British
Columbia. Mr. Hibbert appealed the conviction on the grounds that the trial
judge failed to charge the jury properly on weaknesses in the identification
evidence and on the significance of the alibi evidence. The appeal was
allowed, and the British Columbia Court of Appeal declined to apply s. 686(1) (b)(iii)
of the Criminal Code to cure the error. The court set aside the
conviction and ordered a new trial.
6
In a second jury trial before Dorgan J. in March of 1997, Mr. Hibbert
was again convicted. He appealed that conviction, again alleging weaknesses in
identification evidence and errors in the instructions to the jury about the
evidence of identification. In addition, he alleged that the trial judge erred
in telling the jury they could infer guilt from a disbelieved alibi when there
was no extraneous evidence of fabrication or contrivance. The Crown conceded
that the trial judge’s instructions on the latter point were in error but the
Court of Appeal applied the curative provision of s. 686(1) (b)(iii) and
dismissed the appeal: (2000), 134 B.C.A.C. 281, 2000 BCCA 144. Mr. Hibbert
appeals that decision to this Court on the grounds that the Court of Appeal
erred in failing to find a reversible error in the trial judge’s charge to the
jury on identification, and, having found that there was an error in the alibi
jury instruction, in deciding to apply the curative proviso.
III. The
Evidence
7
The Crown’s case was largely based on circumstantial evidence. No
motive was ever advanced for this unprovoked and sudden attack. In essence,
the strength of the Crown’s case rested on the victim’s knowledge of the
personal details of the appellant’s life; on the in-court identification of the
appellant by Mrs. McLeod and a neighbour who saw the assailant leaving the
residence; on DNA evidence that linked both the appellant and the victim to a
cap found hanging in a tree on the assailant’s escape route; and on various
other pieces of circumstantial evidence that cumulatively point to the
appellant as the assailant. However, Mr. Hibbert put forward explanations,
some stronger than others, for each piece of evidence presented by the Crown.
I will now review this evidence in more detail.
A. Identification
Evidence
(1) The Victim — Janet McLeod
8
Mrs. McLeod could barely speak when she arrived at the hospital on the
afternoon of October 24th. She related a description of the man who assaulted
her and the personal details he shared with her to the attending doctor. A
nurse in attendance recorded her description on the hospital record. The
description was of a 55-year-old male, five feet eight inches tall, 180 pounds,
with grey hair and a grey sweater who told Mrs. McLeod that he had a wife, two
girls, lived on or near Trunk Road, came from Ontario, and had a military
background. Mrs. McLeod also provided a physical description of her assailant
to a constable who came to see her in the treatment room on the afternoon of
October 24, 1993. She described her assailant as a 55-year-old Caucasian male without
an accent, five feet eight inches tall, 180 pounds with grey hair, bushy
eyebrows with some grey in them, a brown felt-type English driving hat, brown
sweater with possibly a white shirt underneath, and dark brown pants. Mrs.
McLeod also gave a physical description to another constable on October 28,
1993 describing the assailant as a male 55 years or older, five feet eight
inches tall, stocky build, round face, wearing a brown “Andy Capp” style hat,
large hands and fingers, brown jacket or sweater, with no recollection of
whether he had an accent. On October 31, 1993, soon after the bandages were
removed from her eyes, Mrs. McLeod and a police sketch artist prepared a
composite sketch. She rated the composite a 6 or 7 out of 10 for accuracy.
9
On November 4, 1993, while still in hospital, Mrs. McLeod was shown an
eight-person photo line-up which included the appellant. Mr. Hibbert’s
photograph was number 7. Mrs. McLeod did not positively identify anyone and
she wrote nothing on her ballot sheet. While viewing the line up, she
expressed that she thought that she had seen the person in picture number 7
before, and said “I feel like I’ve had a conversation with him”. She also
indicated that it might not have been on the day of the attack, and could have
been some time before. On the day of the photo line-up, Mrs. McLeod was tired,
in a great deal of pain, and under the effects of morphine.
10
At the time of Mr. Hibbert’s second arrest on December 14, 1993, a local
news station showed footage of him being escorted by sheriffs into the
courthouse in handcuffs.
11
After being alerted by a television news station that there was an
arrest in her case, Mrs. McLeod and her husband watched the early evening
television news footage which showed Mr. Hibbert at the courthouse in police
custody. Mrs. McLeod asked her husband to tape the nightly news segment with
the same footage. The next morning they watched the tape together and
freeze-framed and studied the shot of Mr. Hibbert under arrest. That same
morning, one of the police constables on the case called the McLeods to update
them on the status of the case and learned they had seen and taped a news film
clip of the arrest. Mrs. McLeod told him they had “got the right man”. The
constable came to the McLeods’ house and watched the tape with them. He then
seized the tape.
12
Mrs. McLeod identified Mr. Hibbert in court, both at the preliminary
hearing and at the first trial, as her assailant. At the second trial, she was
asked if she was able to recognize the man who assaulted her as being a person
in the courtroom. Crown counsel added: “It’s important for the jury to know,
Mrs. McLeod, whether or not you are able to identify your attacker and not
someone that you have seen subsequently, do you understand?” Mrs. McLeod
identified the appellant.
(2) Witness — Carol Baker
13
Carol Baker lived immediately next door to the open house residence that
was the site of the attack. At approximately 3:00 p.m., while outside, she
heard a voice calling for help from the direction of the open house and what
sounded like thumping on the garage door. She went inside her own house to
investigate further by looking from her house window into the garage window at
151 Campbell. She made eye contact with a man in the garage. She testified
that he “stared her down”. He went out of sight but she saw him again through
the window shortly after. That afternoon, Mrs. Baker provided police with a
description of the man she saw, describing him as between five feet eight and
five feet ten inches tall, white skinned, approximately fifty-ish years old, of
medium build, and wearing a tan “tam-like” hat. Mrs. Baker subsequently
referred to the hat as an “Andy Capp” hat after the police officer she was
talking to described it as an “Andy Capp” hat. On cross-examination, Mrs.
Baker admitted that her estimate of the man’s height was a wild guess since she
saw only a portion of his body through the windows.
14
The day after the attack, Mrs. Baker worked with a police sketch artist
(a different artist than the one who subsequently worked with Mrs. McLeod) on a
head-on and profile composite drawing of the assailant. She assessed the
composite sketches as, at best, a 5 out of 10 for accuracy of likeness to the
man she saw.
15
On November 4, 1993, Carol Baker was shown the same eight-person photo
line-up as Janet McLeod. She noted on the ballot that the appellant’s
photograph resembled the person she saw but she could not be positive. While
at the photo line-up, Mrs. Baker was asked, “if you saw the person do you think
you would be able to recognize him for sure, I mean if you saw a photograph
similar to these of the person, would you be able to recognize him?” She
replied: “I don’t know if I could or not, I might be able to.”
16
Mrs. Baker also saw the news footage of Mr. Hibbert in handcuffs at the
time of his arrest. She positively identified him at the preliminary inquiry,
and at the first trial, as the man she saw on the day of the attack. As with
Janet McLeod, at the second trial she was specifically asked if she recognized
the person she saw that day not as someone she had seen in photographs, on
television news, or at any other time, but as the man she saw on the day of the
attack. Mrs. Baker stated she recognized the appellant, “I recognize him in
the box”.
(3) Witness — Heather Visscher
17
Heather Visscher was walking with her parents along a dyke close to the
open house and noted a man, walking a street width away, who she thought was
out of place because he seemed “less friendly” than other walkers that day. At
one point, the man passed ten feet from her and turned onto Trunk Road. She
described the man as being in his fifties, approximately five feet ten inches
or five feet eleven inches tall with a broad face, a “good head” of black and
greying hair, and bushy eyebrows. She did not recall him as having eyeglasses
or any head gear but did state his clothes were wet, consistent with him
sweating, and that he had a jacket tied around his waist. She was not certain
of the time but set it between 2:30 and 3:30 p.m.
18
When shown the photo line-up, she marked the appellant’s photograph on
her ballot as the best likeness of the man and wrote in the comment section:
“I came to this conclusion by process of elimination. I am not 100% sure that
this is the man I saw, but he most closely resembles the picture I have in my
mind of the man I saw that day. The complexion & eyebrows & general
shape of his face was what made me think it was him.”
19
At the trial, Ms. Visscher was asked if she thought she would be able to
recognize the man she saw on the dyke that day if she saw him again. She
responded that she thought so. When asked if she could identify anyone in the
courtroom as the man she saw that day she responded that she could not. When
defence counsel pointed to Mr. Hibbert in the prisoner’s dock and asked her if
that was the person she saw when she was on the dyke, she stated, “I don’t
really think so.”
(4) Witness — Bobby Johnson
20
Bobby Johnson lived at 147 Campbell Street and was working on his truck
in his driveway when he saw a man running from the vicinity of the open house
holding something up against his stomach. He then saw the man jump over a
fence. He described the man as six feet tall, 170 to 180 pounds, greyish hair,
wearing a tan short-sleeved dress shirt and grey dress pants with reddening on
the back of the calves. He put the time at 1:00 to 1:30 p.m. He was not,
however, wearing a watch. He could not make an identification at trial.
(5) Position of the Defence on Identification Evidence
21
It was the position of the defence, largely accepted by the courts
below, that the identification evidence had very little probative value because
it had been contaminated by the news broadcast, but also because of the
unreliability of this kind of evidence in general.
22
The defence pointed out that Mr. Hibbert had a noticeable facial scar.
No witness ever described a scar on the assailant’s face. Defence counsel
sought and got a re-charge by the trial judge reminding the jury that no one
mentioned a scar in their descriptions. Furthermore, Mr. Hibbert testified
that he regularly wore glasses. His wife testified that he wore them around 75
percent to 98 percent of the time. He was wearing glasses at the time of his
arrest. The descriptions of Mrs. McLeod and Mrs. Baker did not mention
glasses.
(6) Others Matching the Appellant’s
Description
23
Once the police had a composite picture, the picture was distributed
widely to local newspapers and to local realtors. There were several dozen tip
files created during the course of the investigation. Not one person called
the police to say that the appellant matched the composite. Many of the tip
files contained information from persons who identified an individual who
looked like the composite, or who fit the description, and had just arrived
from Ontario. In no case was the appellant identified. A defence witness
testified that he had called the RCMP to say that the composite picture was a
“dead ringer” for a man he had seen walking on the dyke five or six times over
a period of six or seven months up to September 1993. He had conversed with
the man who said he was on leave of absence from the dockyard, was with the
fire department, and lived in Duncan close to the dyke. According to the
witness, the RCMP constable who took his call “didn’t put too much credence in
what I was telling him because he said people can look at these composite
pictures and see different faces there, and so it was pretty well left at
that”.
B. Circumstantial
Evidence
24
The Crown’s case rested on a combination of the identification evidence
described above and various items of circumstantial evidence linking the
appellant to the attack.
(1) Personal Knowledge
25
The investigation which originally led the RCMP to the appellant was
based on information that Mrs. McLeod said was communicated to her by her
assailant just before the attack. She told the police that the man who
attacked her had given her several specific personal details, including that he
lived on Trunk Road, that he was retired from the military and waiting for a
pension, that he had just moved from Ontario and that he had two daughters aged
13 to 15. At the time of the attack, all of these details were also true of
the appellant.
26
However, Mrs. McLeod was asked in examination-in-chief whether she had
ever met her assailant before the day of the attack. She said:
Um, excuse me, no, I hadn’t seen him before, but he mentioned to me
that he was from Ontario and waiting for his military pension to come in before
he could buy something, and I kind of looked at him because I had spoken to
this lady on the phone that was from Ontario with her family and they were
waiting for some money to come the following year before they could purchase
anything. So -- and then they came to an open house that I had. I had a
little house open on Marchmount Road, and, um, I just -- when I heard this
fellow was from Ontario, I just kind of looked at him again to see if it was
the same person that had come to my open house and realized that it wasn’t
because the man that I had met from the open house was a very, very small man
and this man was quite a bit bigger.
It is
therefore clear from her evidence that the personal information from her
assailant reminded her of another man she had met a few weeks earlier at
another open house who had a similar background. Both Mr. and Mrs. Hibbert
testified that they had attended an open house held by Mrs. McLeod on
Marchmount Road a few weeks before the attack, and that Mrs. Hibbert had
provided the realtor with the information in question about their background.
(2) Shoes
27
Bloody footprints were found at the site of the attack. A police
footwear expert gave his opinion that the crime scene shoe impression was
similar in gross characteristics, including tread pattern, to the “Venture”
running shoe, a brand name of the Zellers department store. The impression at
the crime scene was from a size eleven shoe. Mr. Hibbert had owned a pair of
black “Venture” brand running shoes purchased at Zellers and had purchased
several pairs of Zellers shoes over the years. He wore shoe sizes ranging from
size eleven to twelve; his wife testified that he wore size eleven and a half to
twelve. At the trial, he wore size twelve shoes. Both Mr. and Mrs. Hibbert
testified that his “Venture” running shoes had been thrown away a few weeks
before the attack. One of the appellant’s stepdaughters thought the shoes were
thrown out shortly after they arrived in Duncan, claiming the “toe was coming
off one foot and the heel was coming off the other and they were just ready to
go”. The Crown was not able to link the shoe print to any shoe owned by the
appellant. The actual footwear that created the specific foot impression at
the scene was not discovered during the course of the police investigation.
28
An expert testified at trial that with department store athletic
footwear (that is, an economical brand and not a name brand shoe such as Nike
or Reebok) foreign manufacturers, primarily in developing countries, make a
large quantity of generic soles that are sold and then assembled to the upper
part of the shoe by another manufacturing facility which could be in a
different country. On cross-examination, the expert noted that he was unable
to trace the manufacturer of the sole and could not be sure that this
particular sole was not sold as an in-store brand for other companies.
Further, unlike the well-known shoe brand companies whose soles are a
distinctive part of their branding, with department store shoes such as the
“Venture”, the same brand running shoe could change its tread pattern every
year.
29
The footprints suggested that someone tripped or lost his balance on the
steps leading into the house. Mr. Hibbert stated on cross-examination that he
twisted his knee the morning of October 24, 1993.
(3) Bite Marks
30
Mrs. McLeod testified that she bit the assailant “hard” on his hand.
Mr. Hibbert had small marks on his hands at the time of his arrest. A dentist
called by the Crown was unable to identify those marks as consistent with a bite
mark.
(4) DNA
31
On October 24, 1993 an RCMP officer’s tracking dog found a fresh
scent on a blue “Andy Capp” style hat in a tree branch, off the dyke, close to
the site of the assault. The officer who seized the cap testified that the cap
had two small reddish spots that looked like blood spots. On cross-examination,
the officer admitted she did not make a note of the two spots of blood when she
seized the hat. The hat was forwarded to a forensic lab on November 2,
1993. Forensic analysis of the cap identified two small areas of blood spots
on the outside crown area of the hat. The DNA expert testified that in his
expert opinion one of the blood spots matched the DNA profile of Mrs. McLeod
and the other matched the DNA profile of the appellant.
32
Mr. Hibbert testified that he had owned such a cap. Both he and his
wife testified that the hat was thrown out with a box of other discarded old
clothes in September 1993 when they were unpacking from the move from Ontario.
The cap found in the tree branch near the dyke had a piece of masking tape
inside with “25 cents” written on it. Both Mr. and Mrs. Hibbert testified that
this sticker was not on the cap when it was discarded.
33
Mr. Hibbert testified that he suffers from a form of dermatitis
condition causing dry chapped skin on his hands to open and bleed. He offered
that as an explanation for some of the small abrasions on his hands at the time
of his arrest, as well as the presence of the small amount of his blood on the
hat.
34
In her charge to the jury, Dorgan J. stated that the exhibit officer
failed to note either the blood stains or the sticker in her notebook. The
defence argued that the exhibit officer was new and had failed to carefully
handle the exhibits so that they were subject to contamination, and pointed out
that there were mistakes in the log. The defence suggested that the victim’s
blood on the hat could have been transferred from other clothing seized by the
police at the hospital or from the hands of the investigating officers who
handled the evidence.
(5) Hair
35
The cap also had several hairs that a hair comparison expert examined.
The hair comparison expert examined six hairs taken from the cap (four hairs
and two hair fragments). She testified that one of the hair fragments found in
the cap was consistent with having originated from the appellant, with a 5
percent chance of coming from another source. Two hairs were inconsistent with
Mr. Hibbert’s and he was eliminated as a source for them. Four hairs were not
consistent with having originated from either the appellant or Mrs. McLeod but
because of some similarities to the appellant’s hair sample, he could not be
eliminated as a source. The cap also contained six non-human hairs indicative
of having originated from a member of the dog family and two non-human hairs
indicative of having originated from the rabbit family.
C. Crime
Scene Evidence
36
No forensic evidence was found at the crime scene at 151 Campbell Street
linking the appellant to the location. No forensic evidence was found at Mr.
Hibbert’s residence, or on any of his clothes, linking him to Mrs. McLeod and
the crime. There was a copious amount of blood at 151 Campbell Street, none of
which belonged to Mr. Hibbert. The blood at the crime scene matched Mrs.
McLeod’s DNA profile. Blood was on the bathroom tub faucets and spout, door
lock and door frame, and there were bloody footsteps from the garage, up the
steps and to the laundry. There was blood in the sink traps at 151 Campbell
Street consistent with the attacker washing at the scene. The taps were
running when the police arrived.
D. Evidence
of the Appellant
37
Mr. Hibbert retired as a Master Corporal in 1993, after 26 years of
military service. At the time of the attack he was on his unused sick and
vacation leave until his pension was to begin in March 1994. He had no
criminal record and no military disciplinary record. The Hibberts moved to
Duncan from Ottawa (the location of his last posting) in August 1993 and rented
a house on Trunk Road. Trunk Road is about a 10-minute walk from the crime
scene. The appellant had two teenage stepdaughters. Mr. and Mrs. Hibbert
attended a number of open houses in September and October 1993. Both Mr. and
Mrs. Hibbert testified that they attended an open house hosted by Janet McLeod
in September 1993. As indicated earlier, Mrs. McLeod’s evidence confirms that
a couple matching some of the Hibberts’ personal characteristics visited that
open house in September.
38
Mr. Hibbert contends that on the morning of October 24, 1993, he drove
his wife to a course she was taking and came home. He testified that he was
wearing grey slacks, a green golf shirt and hiking boots. In the afternoon, he
drove and accompanied his stepdaughters to a cadet flag-raising ceremony. The
ceremony started at 1:30 p.m. After the ceremony, Mr. Hibbert waited while the
cadets mingled and talked. He accompanied his stepdaughters on a 10-minute
trip to the cadet hall barracks so one of his daughters could be measured for a
uniform and issued gear by the training officer. Mr. Hibbert estimated that he
and his stepdaughters either returned home at 2:30 p.m. or left the cadet hall
at that time. The cadet training officer estimated that Mr. Hibbert and his
stepdaughters arrived at the cadet hall between 2:15 p.m. and 2:20 p.m. and
left 10 to 20 minutes later. Rachel Edwards, the appellant’s stepdaughter,
said that they arrived at the cadet hall at 2:15 p.m., stayed 20 minutes and
arrived home at 2:45 p.m. It is a 10-minute drive from the hall to their
residence on Trunk Road. The appellant testified, and his stepdaughter Rachel
confirmed, that upon returning home he prepared dinner and worked on carving a
walking stick. Rachel conceded that since she was babysitting a little girl
that day, she was not in constant contact with the appellant throughout the
afternoon. At 5:00 p.m., Mr. Hibbert picked up his wife. Mrs. Hibbert
testified that his demeanor was normal, that he was wearing the same clothing
as when he dropped her off in the morning, and that his clothes were orderly.
Mrs. Hibbert also testified that he wore hiking boots when he dropped her off
in the morning and he had the same boots on when he picked her up.
39
The appellant’s alibi was corroborated in part by his wife, his
stepdaughters, and by other witnesses for the defence, such as the cadet
trainer. His stepdaughter, Rachel Edwards, said that the appellant was inside
the house during the period between arriving back from the cadet trip and
leaving to pick up his wife, with the exception of 10 minutes when he was on
the front step working on his walking stick. Ms. Edwards testified that she
recalled seeing him on the step at 3:15 p.m. and him coming back into the house
10 minutes later. At trial the stepdaughter said she would have heard the
appellant leave. In cross-examination, she stated that she did not wear a
watch. However, in November 1993, Ms. Edwards told police that she was playing
Nintendo and had music on the day of the assault and that it was possible her
father could have left without her knowing. At trial she explained this
inconsistency by stating that she was “tired and upset” when she spoke to the
police. The other witnesses could not place Mr. Hibbert at home during the
period between his arrival home from the cadet ceremony and the time he left to
pick up his wife but their testimony was consistent with the defendant’s
account of his day. The family acknowledged discussing the times of his
whereabouts on the day of the attack after his arrest.
40
When Mr. Hibbert was initially arrested, he cooperated with police, gave
a two-and-one-half-hour tape recorded statement, was fingerprinted,
photographed, and voluntarily provided hair for DNA testing.
IV. The
Issues
41
The appellant frames the issues on appeal the following way:
Did the Court of Appeal for British Columbia err in law by imposing the
curative provision, s. 686(1) (b)(iii) of the Criminal Code of
Canada after concluding that the trial judge had erred in law in instructing
the jury that they could infer guilt from a false alibi?
Did the Court of Appeal for British Columbia err in finding no
reversible error in the trial judge’s instructions to the jury on the issue of
identification?
V. Relevant
Statutory Provisions
42
Criminal Code, R.S.C. 1985, c. C-46
686. (1) On the hearing of an appeal
against a conviction . . . , the court of appeal
(a) may allow the appeal where it is of the opinion that
.
. .
(ii) the judgment of the trial court should be set aside on the ground
of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;
(b) may dismiss the appeal where
.
. .
(iii) notwithstanding that the court is of the opinion that on any
ground mentioned in subparagraph (a)(ii) the appeal might be decided in
favour of the appellant, it is of the opinion that no substantial wrong or
miscarriage of justice has occurred . . . .
VI. Analysis
43
In order to properly address the central issue of the application of the
proviso, I find it preferable first to address the adequacy of the trial
judge’s charge on the issue of identification, then to examine the nature and
effect of the conceded error in the judge’s charge on the defence of alibi and
finally to examine the strength of the Crown’s case within the proper framework
of s. 686(1) (b)(iii).
A. The
Charge on Identification
44
The appellant argues that the trial judge’s directions to the jury on
identification evidence were inadequate. This was the basis on which the
appeal in the first trial was successful. In this case, however, the
directions on identification evidence were not so deficient as to constitute an
error of law. That being said, I will take the opportunity to highlight the
problems with the identification evidence in this trial and the dangers of
identification evidence in general.
45
The evidence of identification was both direct and circumstantial. The
concerns expressed by the appellant are addressed to the direct evidence and,
in particular, to the alleged insufficiency of the charge with respect to the
in-court identifications.
46
As pointed out by the Court of Appeal, it is true that the trial judge
addressed the frailties of the identification evidence. In the middle of a
passage which highlighted several potential grounds for suspicion about the
reliability of eyewitness identification, the trial judge said:
However, you must consider the possibility that
Mrs. McLeod identified the accused in court from her memory of either the
photograph in the line up or the television newscast instead of from her memory
of the person she saw at 151 Campbell Street on October 24, 1993. You must also
consider the same possibility in respect of Mrs. Baker’s in court
identification of the accused.
I also remind you that both Mrs. McLeod and Mrs.
Baker positively identified the accused for the first time when each was asked
to identify him in the courtroom at the preliminary hearing and at the first
trial and at this trial and the law provides that the identification of the
accused for the first time in the courtroom after a failure to positively
identify him from a photo line up is to be accorded little weight.
47
The appellant argues that this instruction was insufficient to diffuse
the psychological impact on the jury of the identification of the accused in
open court by the victim of a life-threatening, vicious, unprovoked beating.
The defence objected to the Crown asking Mrs. McLeod whether the accused was
really the perpetrator of the attack “and not someone that you have seen
subsequently”. The trial judge, in reviewing the evidence, pointed out the
occasions that Mrs. McLeod had had to see the appellant before the trial (on
television when he was arrested, at the preliminary inquiry and at the first
trial) and reminded the jury that her evidence was that the appellant was her
attacker and not simply the man she had seen on these previous
occasions.
48
The appellant argues that by asking Mrs. McLeod and Mrs. Baker to make
such a distinction, the Crown was asking the impossible: the witnesses simply
could no longer tell where their recognition of the appellant originated from.
Furthermore, the appellant argues, after so much exposure to the appellant,
whom neither witness had positively identified prior to the television newscast
of his arrest, their in-court identification should be accorded no weight
whatsoever.
49
One might ask, if that were the case, why the in-court identification
should be permitted to occur. In this case, as in most, it of course served to
confirm that the accused was, in the opinion of Mrs. McLeod and Mrs. Baker, the
same man they saw throughout the chain of events (from arrest through to the
second trial). In that sense, despite its almost total absence of value as
reliable positive identification, the evidence of the witnesses may be given
some weight at least for that purpose. In addition, generally, a jury might be
concerned if a witness was not asked to identify an accused in court as the
perpetrator and might draw an unjustified adverse inference against the Crown
if the question was not asked. Moreover, the inability of a witness to
identify the accused in court as the perpetrator is entitled to some weight.
This in fact happened here in the case of Ms. Visscher who, as the trial judge
reminded the jury, was unable to identify the accused in court as the man she
saw on the dyke.
50
I am of the view that, in the circumstances of this case, the trial
judge should have cautioned the jury more strongly that the identification of
the accused in court, by Mrs. McLeod and Mrs. Baker, was highly problematic as
direct reliable identification of the perpetrator of the offence. I think it
is important to remember that the danger associated with eyewitness in-court
identification is that it is deceptively credible, largely because it is honest
and sincere. The dramatic impact of the identification taking place in court,
before the jury, can aggravate the distorted value that the jury may place on
it. I am not persuaded that the instruction quoted above, to the effect that
such identification should be accorded “little weight”, goes far enough to
displace the danger that the jury could still give it weight that it does not
deserve.
51
The danger of wrongful conviction arising from faulty but apparently
persuasive eyewitness identification has been well documented. Most recently
the Honourable Peter deC. Cory, acting as Commissioner in the Inquiry regarding
Thomas Sophonow, made recommendations regarding the conduct of live and photo
line-ups, and called for stronger warnings to the jury than were issued in the
present case (Peter deC. Cory, The Inquiry Regarding Thomas Sophonow: The
Investigation, Prosecution and Consideration of Entitlement to Compensation
(2001) (“Sophonow Inquiry”), at pp. 31-34).
52
While it is unnecessary to consider these recommendations in detail, I
share the concern expressed by the Commissioner and, in this particular case, I
think it would have been prudent to emphasize for the benefit of the jury the
very weak link between the confidence level of a witness and the accuracy of
that witness (Sophonow Inquiry, at p. 28). Moreover, here it should also have
been stressed that the impact of Mrs. McLeod having seen the appellant arrested
by the police as her alleged assailant could not be undone. Nor could she be
expected to divorce her previous recollection of her assailant from the mental
image that she formed after having seen the appellant on television.
53
What will be required to displace the danger that the jury will give an
eyewitness identification weight that it does not deserve will vary with the
facts of individual cases. Here, at a second trial, and in light of the
identification history, I think a stronger warning would have been appropriate.
B. The
Instructions on Alibi
54
A few days before the trial judge completed her instructions to the jury
in this case, the B.C. Court of Appeal handed down its decision in R. v.
Tessier (1997), 113 C.C.C. (3d) 538, in which it held that an instruction
to the jury virtually identical to the one given in the present case was
wrong. In light of that decision, the Crown concedes that the instructions
here were defective.
55
The first part of the trial judge’s instructions as to how to approach
the evidence tendered in support of the defence of alibi was correct:
Keep in mind three things, that if you accept the
evidence in support of the defence of alibi, you must return a verdict of not
guilty if you find that these times just do not allow for this accused to have
committed the acts alleged. If you do not accept the evidence in support of
the defence of alibi, but you are left in a reasonable doubt about it, you must
return a verdict of not guilty. Even if you are not left in a reasonable doubt
by the evidence in support of the defence of alibi, you must still go on to
determine whether or not on the basis of all the evidence the accused is
guilty.
56
The trial judge then proceeded to give the then standard instruction,
suggested in a criminal jury instructions manual at the time (G. A. Ferguson
and J. C. Bouck, Canadian Criminal Jury Instructions (2nd ed.
(loose-leaf)), vol. 2, at pp. 8.04-1 to 8.04-4) as follows:
If on the other hand you determine beyond a
reasonable doubt that the alibi is false and was put forward to deceive you,
this allows you to draw if you wish the inference that the accused is guilty.
By itself a false alibi is not conclusive evidence of guilt. You have to
examine all the evidence when you are deciding whether the alibi is merely
untruthful or was fabricated or concocted in a way designed to hide guilt.
Keep in mind that a person may tell an untrue story for reasons other than for
trying to hide guilt, that the Crown here is not suggesting to you that the
times as they relate to the defence of alibi are concocted. Rather the Crown
is suggesting that the times testified to have been reconstructed through
conversations among and between the accused, Mrs. Hibbert and the daughters.
The Crown is therefore arguing the weight and encouraging you not to give it
much weight, that is the evidence of specific times as testified to by the
accused and family members. [Emphasis added.]
57
The Court of Appeal in Tessier held that in the absence of some
evidence of concoction, a disbelieved alibi has no evidentiary value and cannot
constitute positive incriminating evidence. This accords with the position
taken also by courts of appeal in Quebec and in Ontario (R. v.
Davison (1974), 20 C.C.C. (2d) 424 (Ont. C.A.); R. v. Witter (1996),
105 C.C.C. (3d) 44 (Ont. C.A.); R. v. Coutts (1998), 16 C.R. (5th) 240
(Ont. C.A.), leave to appeal dismissed, [1999] 1 S.C.R. xii; R. v.
Krishantharajah (1999), 133 C.C.C. (3d) 157 (Ont. C.A.); R. v. Carey
(1996), 113 C.C.C. (3d) 74 (Que. C.A.)). As I discuss in more detail below, in
this case there is no evidence of concoction. As a result, according to these
authorities, the underlined passage in the above charge would constitute an
error.
58
The early leading authority on the subject was Davison, supra.
Martin J.A., at p. 428, expressed the principle clearly as follows:
The inference to be drawn from the fabrication of a
false alibi does not, however, arise from the mere rejection by the jury of the
evidence with respect to alibi.
In my view the principle is correctly stated in Wigmore
on Evidence, 3rd ed. (1940), vol. 2, at p. 126:
In particular, the failure to establish an alleged alibi is to
be distinguished from the use of perjury or subornation in an unsuccessful
attempt to prove the ‘alibi’; the latter admits of the usual broad inference
from fraud, but the former amounts to nothing more than an inability to prove
the specific fact of ‘alibi’.
Mere disbelief of the alibi advanced does not
constitute proof that it was false in the sense of being fabricated. [Italics
in original.]
This position
was consistently followed in the cases cited above and the only doubt cast on its
correctness comes from a short sentence in the oral judgment of this Court in R.
v. Michaud, [1996] 2 S.C.R. 458. In the course of upholding a judgment of
the New Brunswick Court of Appeal on other grounds, Sopinka J. noted a
concession by the respondent that the Court of Appeal had erred on an unrelated
matter, and then added: “We find no error in the charge in respect of this
ground nor in the charge relating to the alibi evidence” (para. 3
(emphasis added)). It is this last passage that has created some uncertainty
in that the Court of Appeal had ruled in Michaud that the trial judge’s
instruction on alibi, cast in the standard terms also used in this case, was
erroneous. Courts of appeal have commented on the effect of Michaud,
noting that Sopinka J.’s comment was obiter (Krishantharajah, supra,
per Carthy J.A., at pp. 164-65), and that the Supreme Court may have
been of the view that there was sufficient evidence of concoction in that case
to permit the instruction (Tessier, supra, per Rowles J.A.,
at p. 551, per Ryan J.A., at pp. 555-56; Krishantharajah, per
Carthy J.A., at p. 165, who added that the comment might otherwise have been per
incuriam).
59
Michaud should not be taken as a departure from the well‑established
position expressed and followed by the courts of appeal in the cases cited
above. It is unnecessary in this case to determine the nature and scope of
evidence necessary to show concoction so as to permit the instructions inviting
the inference of consciousness of guilt. Suffice it to say that the cases have
consistently pointed out that there must be evidence linking the accused to
fabrication and that such evidence cannot emerge from a mere rejection of the
alibi tendered. Many have spoken of the need for independent evidence of fabrication
above and beyond a finding that the alibi is false. (See Ryan J.A. in Tessier,
supra, at p. 556.)
60
The Crown concedes that at trial it did not put forward a suggestion
that the alibi had been concocted. It also concedes, as it did before the
Court of Appeal, that the trial judge’s instructions were in error in the
absence of evidence that the accused was implicated in putting forward a
fabricated alibi.
61
These concessions were appropriate. A defence of alibi may be
disbelieved, particularly in the face of an overwhelming case for the
prosecution, merely on the basis that the witnesses who testified in support of
the alibi were imprecise or inconclusive, that their recollection was
unreliable, or that they simply were mistaken. In such cases their evidence
must be discarded, without more.
62
Even if an alibi is advanced by the accused himself and is rejected, the
finding that the alibi is untrue cannot serve to corroborate or complement the
case for the prosecution, let alone permit an inference that the accused is
guilty.
63
If the alibi witnesses were found to be deliberately untruthful, their
attempt at deceiving the jury could not be visited upon the accused unless he
or she participated in the deceit. If, on the other hand, there was evidence
that the accused attempted to put forward a fabricated defence, that effort,
akin to an effort to bribe or threaten a witness or a juror, could be tendered
as evidence of consciousness of guilt.
64
In this case, the Crown concedes that there was no evidence of
concoction. Apart from the fact that the appellant, his wife and his
stepdaughters had discussed his whereabouts on the afternoon of the crime after
his arrest, there was no evidence that the appellant was party to an effort to
fabricate an alibi or that he enlisted members of his family to testify falsely
about the issue.
65
On the other hand, Crown counsel at trial suggested — to Mrs. Hibbert in
particular — that she attempted to assist her daughters and her husband in
reconstructing the time frame of their respective activities on the afternoon
of the attack. In light of the erroneous instructions, the jury could have
assumed, wrongly, that this was evidence of concoction which would allow them
not only to reject the alibi evidence but to draw an inference of guilt from
its rejection. The fallacy, and the danger, with that reasoning was well expressed
by Ryan J.A. in Tessier, supra, at p. 556, where she said:
It seems to me that the reason we look for
independent evidence that the accused fabricated his story is two-fold. In the
first place as my colleague Rowles J.A. has pointed out the reasoning is
circular if there is no independent proof: “The weight of the Crown’s evidence
admits of no doubt therefore the accused is not telling the truth. The accused
is not telling the truth therefore the Crown’s case admits of no doubt.” In
the second place, because the evidence that the accused has fabricated a story
can be used as part of the Crown’s case against him, care must be taken in
finding that the alibi was concocted. There must be a solid evidentiary base
of fabrication. It is not unreasonable to demand that this evidence be found
independently of the other evidence of the proof of the crime.
If evidence of fabrication need be found only in
the evidence which proves the offence then in every case where the accused
testifies (alibi or not) there would be no reason not to permit a jury to use
their finding that the accused has been untruthful as part of the Crown’s case
against him. That does not accord with any articulation of the law that I know
of.
66
This highlights the seriousness of the erroneous instruction on the
defence of alibi in the present case. It provided the jury with a direct, and
incorrect, route to guilt. It implied that the jury could find evidence of
concoction, which it could not on this record, and it then allowed the jury, if
it rejected the alibi, to infer that the accused is guilty.
67
Before turning to the application of the proviso in light of the above,
it may be useful to summarize briefly the state of the law with respect to the
rejection of a defence of alibi.
-- In the absence of evidence of concoction
(deliberate fabrication) an alibi that is disbelieved has no evidentiary value.
-- A disbelieved alibi is insufficient to
support an inference of concoction or deliberate fabrication. There must be
other evidence from which a reasonable jury could conclude that the alibi was
deliberately fabricated and that the accused was involved in that attempt to
mislead the jury. It is the attempt to deceive, and not the failed alibi, that
supports an inference of consciousness of guilt.
-- In appropriate cases, for instance if there
were multiple accused, the jury should be instructed that the fabricated alibi
may be used to place the accused at the scene of the crime, but may fall short
of directly implicating him in its commission.
-- When there is evidence that an alibi was
fabricated, at the instigation or with the knowledge and approval of the
accused, that evidence may be used by the jury to support an inference of consciousness
of guilt.
-- In cases where such an inference is
available, the jury should be instructed that it may, not must, be drawn.
-- A fabricated alibi is not conclusive
evidence of guilt.
C. The
Application of Section 686(1)(b)(iii)
68
This brings me to the principal ground of appeal. On appeal from the
first trial in this case, the Court of Appeal held that the instructions to the
jury had not adequately dealt with the weaknesses in the identification
evidence and the court declined to apply the proviso. Legg J.A., for the
court, noted that the error on the identification instructions was serious but
the circumstantial evidence tendered by the Crown was strong. He concluded,
however, that a properly instructed jury might have been left with a reasonable
doubt (R. v. Hibbert (1996), 78 B.C.A.C. 277).
69
In this appeal, the Court of Appeal concluded otherwise and applied the
curative proviso despite the erroneous instructions on the effect of a rejected
alibi.
70
In my view, and with the greatest respect for the contrary opinion of
the Court of Appeal in the present appeal, the proviso cannot be used to
overcome the instructions on the inference of guilt arising from the rejected
alibi which erroneously provided the jury with a direct route to conviction.
71
The proper test for the application of the proviso has been
enunciated by this Court on a number of occasions (see Colpitts v. The Queen,
[1965] S.C.R. 739; Wildman v. The Queen, [1984] 2 S.C.R. 311; R. v.
B. (F.F.), [1993] 1 S.C.R. 697; R. v. Bevan, [1993] 2 S.C.R. 599; R.
v. Charlebois, [2000] 2 S.C.R. 674, 2000 SCC 53). It is the task of this
Court to determine whether there is “any reasonable possibility that the
verdict would have been different had the error at issue not been made” (Bevan,
supra, at p. 617). The application of the proviso was
recently reviewed in R. v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86. As I
indicated in that case, the case law distinguishes between trivial errors, or
errors that had no effect on the verdict, and serious errors of law which could
have tainted the conviction. In the former case, the proviso can readily be
applied. In the latter, it should not be applied unless the evidence of guilt
is so overwhelming that any other reasonable jury would inevitably convict.
72
The Crown concedes that the trial judge’s instructions were in error.
The error in this case was not a trivial error nor one that would be unlikely
to have had any effect on the verdict. As stated above, the trial judge’s
erroneous instructions implied that the jury could find evidence of concoction
allowing them to infer that the accused was guilty. This is a serious error
that provided the jury with a direct route to guilt. Despite the
circumstantial evidence that points to the accused, I do not think that one can
confidently say that a conviction is a foregone conclusion in the sense that
any other reasonable jury would inevitably convict. The jury deliberations
were long in both trials. In the present appeal, the jury deliberated for
several days.
73
It is obvious that the jury needed proper guidance after a trial that
was not an open and shut case. Not only is it possible that the erroneous
alibi instructions played a part in the conviction, but without the benefit of
actually hearing the evidence and assessing the credibility of the witnesses
for the defence, it is not in my view possible to conclude that any other
reasonable jury would also inevitably convict.
74
In order to convict, the jury has to overcome some of the troubling
features of the case: the absence of motive; the limited opportunity, even if
the evidence of alibi is in part disbelieved; and the absence of any evidence
linking the appellant to the scene of the crime. The jury will also have to
overcome the strange confirmation by the victim, herself, that she in fact had
met a man, at a previous open house, who shared many of the personal
characteristics of the appellant — he and his family had recently arrived in
Duncan from Ontario, he was looking for a house as he was waiting for his
pension — in fact, their personal details had struck her as sufficiently
similar that she wondered if it was the same man the minute her assailant
conveyed that information to her. She concluded that it was not. Of course
she could be mistaken, in which case such a mistake would cast serious doubt on
the accuracy of all of her identification evidence. On the other hand, if she
is right, this is an exculpatory coincidence that is potentially as cogent as
some of the inculpatory ones. Innumerable details will have to be factored
into the ultimate conclusion of the jury — the frequency of the appellant
wearing glasses, the prominence of the scar on his face that was not noted by
the identification witnesses, the 25-cent sticker on the “Andy Capp” hat, Mrs.
McLeod’s consistent description of the hat worn by the assailant as brown while
the hat found on the dyke was blue, and the hairs on that hat that did not
belong to the appellant. In order to convict, a reasonable jury will have to
address these matters in light of its appreciation of the credibility of the
witnesses, including the appellant, who himself testified.
75
These are all matters properly decided by the jury.
VII. Disposition
76
I would therefore allow the appeal and order a new trial.
The reasons of L’Heureux-Dubé and Bastarache JJ. were delivered by
77
Bastarache J. (dissenting)
— Though I agree that the trial judge did not err in her instructions to the
jury on identification evidence, I disagree that a stronger warning was
appropriate in the circumstances of the case. In addition, I find that the
error in respect of the trial judge’s instructions on alibi was not so serious
as to preclude the Court of Appeal from applying s. 686(1) (b)(iii) of
the Criminal Code, R.S.C. 1985, c. C-46 (the “proviso”), to cure the
error. These two issues are discussed in turn below.
I. Adequacy
of the Trial Judge’s Warning on Identification Evidence
78
I agree with my colleague that the trial judge’s directions to the jury
on identification evidence did not constitute an error of law. Moreover, I
find that the trial judge’s warning in this regard was adequate. This Court has
recognized the frailties of identification evidence. Yet it has also
acknowledged that to take from the jury direct evidence of identification where
the quality of that evidence is questionable risks obliterating the clear line
separating the functions of the judge and jury. As stated by McIntyre J. in Mezzo
v. The Queen, [1986] 1 S.C.R. 802, at p. 844, “[q]uestions of
credibility and the weight that should be given to evidence are peculiarly the
province of the jury.” In my view, the trial judge’s direction to the jury
pointed out the general and specific problems with the identification evidence
while at the same time respecting the role of the jury to weigh the evidence
that was properly before it.
79
The trial judge clearly discharged her obligation to highlight the
inherent frailty of identification evidence and to explain the factors
underlying its frailty: see Mezzo, supra, at p. 845, citing R.
v. Turnbull, [1976] 3 All E.R. 549; see also Canning v. The Queen,
[1986] 1 S.C.R. 991. In this respect, she provided the following general
caution:
I am going to give you a special warning about the
evidence of eye witnesses. As you know, it is such a major issue here, the
issue of identity. Every once in a while in our courts a person is convicted of
an offence even though she or he is innocent, and when this does happen it is
often because a mistake has been made by one or more eye witnesses. It is easy
to see how this can happen. You no doubt have had experience yourself where you
think you have recognized someone and then found out that the person you
thought it was is not the person you thought it was. An eye witness can be very
convincing when that witness honestly believes that the accused person is the
person she or he saw. Observation and memory can be unreliable when it comes to
identification of people because people make honest mistakes. So when
considering the evidence of the eye witnesses, it might be helpful for you, and
I urge you to use the following guidelines paying particular attention to each
eye witness’ opportunity to observe the person being described or identified.
80
The trial judge then went on to identify with reference to the facts
several factors including the length of time the witness observed the person
being identified, the distance from which the observation was made, the lighting
conditions and the presence of obstructions, the time that had elapsed since
the time the person was identified, the eyesight and memory of the witnesses,
and consistencies and inconsistencies between the testimonies given by the eye
witnesses. Following this, she added an additional caution:
Bear in mind that although identification by one
witness can support that of the other, even a number of honest witnesses can be
mistaken.
81
In Canning, supra, this Court confirmed that in addition
to providing a general caution regarding the frailties of identification
evidence, the trial judge must also relate the need for caution to the
particular facts of the case. In my view, the trial judge adequately provided
this aspect of the required warning. Specific vulnerabilities in the
identification evidence were identified by the trial judge and discussed in
considerable detail. The trial judge raised the question: “Did the eye witness
see a photograph of the person described before making the identification?” In
answer to this she reviewed the following evidence:
In this case you have evidence that both Mrs.
McLeod and Mrs. Baker saw a photograph of the accused in the photographic line
up prior to identifying the accused in court. Ms. Visscher did as well, and she
was unable to identify the accused in court as the man she saw on the dike.
Both Mrs. McLeod and Mrs. Baker had seen news coverage on television of the
accused leaving the courthouse after he was charged. As well you have the
evidence of Janet McLeod that she watched the television newscast three times,
and that in so doing the television picture of the accused was stopped. The
freeze frame photo has been referred to. She said she watched the news on
December 14, 1993 to make sure it is the right person. Those were her words.
She and her husband froze the picture of the accused in the newscast and she
looked at it and she said then and she says now that the accused is the right
person.
82
The trial judge proceeded to provide the jury with a clear explanation
of the significance of the above evidence:
. . . you must consider the possibility that Mrs. McLeod identified the
accused in court from her memory of either the photograph in the line up or the
television newscast instead of from her memory of the person she saw at 151
Campbell Street on October 24, 1993. You must also consider the same
possibility in respect of Mrs. Baker’s in court identification of the accused.
I also remind you that both Mrs. McLeod and Mrs.
Baker positively identified the accused for the first time when each was asked
to identify him in the courtroom at the preliminary hearing and at the first
trial and at this trial and the law provides that the identification of the
accused for the first time in the courtroom after a failure to positively
identify him from a photo line up is to be accorded little weight.
83
After providing specific cautions regarding the possibility that the
in-court identification was tainted and was in any event entitled to little
weight given the inability of witnesses to pick the accused out of a photo
line-up, the trial judge summed up her instruction on identification evidence
as follows:
It is open to you to find that the Crown’s case on
visual identification evidence is vulnerable for some of the reasons that have
been outlined and applying the guidelines I have given you.
84
The appellant argues that the trial judge should have instructed the
jury that Mrs. McLeod’s and Mrs. Baker’s in-court identification should be
accorded no weight whatsoever given the possibility that these witnesses were
basing their identification on subsequent observations of the appellant (on
television, at the preliminary hearing at the first trial) rather than on their
recollection of the appellant at the scene of the crime. He further asserts
that the failure of the witnesses to positively identify him prior to seeing
him on television and in court strengthens the argument that the in-court
identification should be given no weight.
85
My colleague rejects the appellant’s argument that the trial judge
should have instructed the jury to accord no weight to the in-court
identification. She is of the opinion that the in-court identification was
entitled to some weight. She notes in this respect that the in-court
identification served to confirm that the accused was, in the opinion of Mrs.
McLeod and Mrs. Baker, the same man they saw through the chain of events (from
arrest through to the second trial). In addition, she notes that a jury may be
concerned if a witness was not asked to identify an accused in court as the perpetrator
and might draw an adverse inference against the Crown if the question was not
asked. Moreover, in-court identification serves some purpose since the inability
of a witness to identify the accused in court as the perpetrator is
entitled to some weight.
86
While she would not require the trial judge to instruct the jury that
the in-court identification was entitled to no weight, she would have
preferred the trial judge to instruct the jury that they could not rely on the
in-court identification as direct reliable identification of the perpetrator of
the offence. For the reasons discussed below, it is my opinion that a warning
of that nature was neither necessary nor desirable.
87
The first problem I have with the instruction suggested by my colleague
is that it appears inconsistent and therefore risks confusing the jury. On the
one hand, the jury is told that in-court identification has some purpose and in
particular can be used to refute the Crown’s theory that the accused is the
perpetrator if the witness is unable to identify the accused as the perpetrator
in court. On the other hand, they are told that a positive in-court
identification of the accused as the perpetrator should not be relied upon as
direct reliable evidence of the identification of the perpetrator. In my view,
a jury would find these two views confusing and inconsistent and would tend to
disregard in-court identification for any purpose. The approach of the trial
judge in this case was preferable. Rather than instructing the jury to
disregard the identification of the accused in court, she warned the jury that
this evidence was entitled to little weight and accompanied this warning with a
clear explanation as to why the evidence was entitled to little weight given
the particular circumstances of the case.
88
Perhaps a more significant problem with the instruction suggested by my
colleague is that it encroaches upon the jury’s essential function as the trier
of fact. Once the decision has been made to allow evidence to be put before the
jury, it is ultimately up to the jury to determine what weight to attribute to
that evidence. Though this Court recognizes that there are certain frailties
associated with identification evidence that must be brought to the attention
of the jury, properly admitted identification evidence should not be
effectively removed from the jury’s consideration by means of the trial judge’s
instruction. As was stated by Weiler J.A. in R. v. Gagnon (2000), 136
O.A.C. 116, at para. 91:
The trial judge was correct that the generally
accepted state of the law is that, where evidence is tainted, either because
identification was suggested by the accused’s presence in the prisoner’s box or
as a result of inappropriate police procedures, the evidence is not thereby
rendered inadmissible. Rather, the evidence of tainting is a factor going to
the weight of the evidence which is exclusively the province of the jury.
See R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1; 43 Man. R. (2d) 161; 27
C.C.C. (3d) 97; R. v. Miaponoose (A.) (1996), 93 O.A.C. 115; 110
C.C.C. (3d) 445, at p. 458 (C.A.); R. v. Buric (G.J.) et al.
(1996), 90 O.A.C. 321; 106 C.C.C. (3d) 97, at p. 112 (C.A.), per Labrosse, J.A,
whose reasons were affirmed at (1997), 209 N.R. 241; 98 O.A.C. 398; 114 C.C.C.
(3d) 95 (S.C.C.). [Emphasis added.]
In this case,
it was open to the jury to determine that Mrs. McLeod and Mrs. Baker were able
to identify the accused in court because they recognized the accused as the
perpetrator of the crime. The trial judge cautioned the jury regarding the
dangers associated with drawing this conclusion without unduly impinging upon
the jury’s function to weigh the evidence.
89
The final problem that I have with the instruction suggested by
my colleague is that it seems to create a spectrum of warnings from which the
trial judge must choose when instructing a jury regarding in-court
identification. While in some cases it may be appropriate for the trial judge
to instruct the jury to accord "little weight" to the in-court identification,
in other cases the trial judge must instruct the jury that in-court
identification should not be used as evidence of "direct reliable
identification", a standard which presumably lies
somewhere in between “little weight” and “no weight”. In my view, creating a
myriad of appropriate cautions ranging from “little weight” to “no weight” is
unnecessary and confusing and will have the undesirable effect of spawning a
new ground for appeal.
90
Furthermore, where the Court concludes that the warning provided by the
trial judge was adequate taking into account the circumstances of the case, it
is unnecessary to suggest an alternative preferable method of cautioning the
jury. As I stated in R. v. Charlebois, [2000] 2 S.C.R. 674, 2000 SCC 53,
at para. 24:
Even if the trial judge could have expressed himself more clearly, “a
standard of perfection is not the test when an appellate court reviews a jury
charge” (R. v. Malott, [1998] 1 S.C.R. 123, at para. 15). In R. v.
Jacquard, [1997] 1 S.C.R. 314, our Court recognized at para. 2 that while
there is an entitlement to a properly instructed jury, “(t)here is . . . no
requirement for perfectly instructed juries” (emphasis deleted). One must
accept that it is not incumbent on the trial judge to make an argument for the
defence or to fashion the most favourable charge to the defence; see R. v.
Dickhoff (1998), 130 C.C.C. (3d) 494 (Sask. C.A.).
91
The above principle, which eschews a formulaic approach to the trial
judge’s charge to the jury, was echoed in the specific context of the trial
judge’s instructions on identification evidence in R. v. Edwardson
(1993), 77 B.C.L.R. (2d) 362, a decision of the British Columbia Court of
Appeal, at paras. 39 to 41:
As I have noted, there has been a reluctance on the
part of this and other appellate courts to adopt a general rule such as that
found in the Turnbull case. The reason for that is undoubtedly the fear
that in some cases a special instruction on the inherent frailties of
eyewitness identification will induce juries to reject accurate identifications
and acquit where they should convict.
But that concern can be met by casting the special
instruction in language appropriate to the case. The precise point which has
been made time and again is that there is no rigid formulation for such
instruction. Each should be designed with specific reference to the
evidence which either supports or casts doubt on the eyewitness identification.
. . .
In all cases the jury should be told that they
ought not to resile from acting upon an eyewitness identification if, after
taking into account the various weaknesses which have been pointed out to them
by both the judge and counsel, and exercising the required caution, they are
nonetheless satisfied beyond a reasonable doubt that it is an accurate
identification. [Emphasis added.]
92
For the reasons expressed above, I also think that the suggestions put
forward by my colleague at para. 52 are unnecessary, and in some instances,
undesirable. My colleague suggests that the trial judge should have emphasized
“the very weak link between the confidence level of a witness and the accuracy
of that witness”. In my view, the trial judge communicated that idea to the
jury when she explained that an eyewitness can be very convincing when he or
she honestly believes that the accused person is the person she or he saw, but
that “[o]bservation and memory can be unreliable when it comes to identification
of people because people make honest mistakes.”
93
In the same paragraph (para. 52), my colleague says that the trial judge
should have stressed that Mrs. McLeod could not have divorced her previous
recollection of the assailant from the mental images she formed after having
seen the appellant arrested by the police on television. I disagree that a
caution of this nature should have been given by the trial judge. As I
discussed above, whether Mrs. McLeod was able to identify the accused as her
assailant, or whether she was merely identifying him as the man she saw being
arrested and at previous hearings, was ultimately a question for the jury to
answer.
II. Application
of the Proviso to the Trial Judge’s Erroneous Instruction on Alibi
94
This Court has established that the question to be asked when
considering the application of s. 686(1) (b)(iii) of the Criminal Code
is whether there is any reasonable possibility that the verdict would have
been different had the error at issue not been made: R. v. Bevan, [1993]
2 S.C.R. 599, at p. 616; R. v. Jacquard, [1997] 1 S.C.R. 314, at para.
58; Charlebois, supra, at para. 11; R. v. Jolivet, [2000]
1 S.C.R. 751, 2000 SCC 29, at para. 48; R. v. Khan, [2001] 3 S.C.R.
823, 2001 SCC 86, at para. 28.
95
In answering the above question, the strength of the Crown’s case,
otherwise stated as “the legally admissible evidence untainted by the error”,
is but one factor to be considered along with the seriousness of the error in
question and the effect it likely had upon the jury’s inference-drawing process
(Jolivet, supra, at para. 54). I agree with the Court of Appeal
that the Crown’s case was a strong one. However, in my view, it is the latter
two factors that are dispositive of this case. The trial judge mitigated the
seriousness of the error contained in the then standard jury instructions by
tailoring the instruction to the particular circumstances of the case. When the
error in the trial judge’s instructions on alibi is considered in the context
of the charge as a whole and against the background of the entire trial, it is
evident that there was no reasonable possibility that the error would have
impacted upon the reasoning process of the jury.
96
I agree with my colleague that case law applying the proviso
distinguishes between trivial errors, or errors that had no effect on the
verdict, and serious errors of law which could taint the conviction. Where the
error is determined to be “serious”, the proviso should not be applied unless
the evidence of guilt untainted by the error is so overwhelming that any other
reasonable jury would inevitably convict (Khan, supra, at para.
26). My colleague suggests that the error made in this case was, by its very
nature, serious. In my view, there is no independent yardstick by which to
gauge the seriousness of the error. As McIntyre J. remarked in Mahoney v.
The Queen, [1982] 1 S.C.R. 834, at p. 852, “[t]he Court of Appeal must
consider the errors against the background of the whole trial.” Whether an
error is considered “trivial” or whether it is “serious” depends on the extent
to which it can be said to have affected the jury’s determination.
97
Whether or not the error was in this case “serious” necessitates an
examination of the nature of the error and the likely effect it had on this
jury’s reasoning process. The trial judge’s error consisted of giving the
standard instruction concerning false alibi as contained in G. A. Ferguson and
J. C. Bouck, Canadian Criminal Jury Instructions (2nd ed. (loose-leaf)),
vol. 2, at pp. 8.04-1 to 8.04-4. Those instructions were found to be in error
in R. v. Tessier (1997), 113 C.C.C. (3d) 538 (B.C.C.A.), a decision
which the trial judge did not have the benefit of when charging the jury. Tessier
holds that in the absence of some evidence of actual concoction, a
disbelieved alibi has no evidentiary value and cannot be placed on the scales
to contribute to a finding of guilt. It is therefore an error to instruct the
jury that they can draw an inference of guilt from a disbelieved alibi in the
absence of independent evidence of fabrication. The error is described in the
following terms in R. v. Krishantharajah (1999), 133 C.C.C. (3d) 157
(Ont. C.A.), at pp. 163-64:
This court has consistently held that in the
absence of evidence of concoction, (there is no suggestion by the Crown that
such exists in this case), an alibi that is disbelieved has no evidentiary
value. It should not be added to other evidence to contribute to a finding of
guilt. . . . As explained by Doherty J.A. in Coutts, this cannot be
justified by pure logic because in many cases the inference of concoction, and
thus consciousness of guilt, may flow naturally from disbelief. However, the
safeguard is necessary to prevent the jury from short-circuiting the Crown’s
obligation to prove guilt beyond a reasonable doubt by moving directly from
disbelief of an alibi to a finding of guilt.
98
The trial judge in this case instructed the jury: “If . . . you
determine beyond a reasonable doubt that the alibi is false and was put forward
to deceive you, this allows you to draw if you wish the inference that the
accused is guilty.” To have acted impermissibly on this instruction, the jury
would have had to have made an initial determination that the accused’s alibi
was concocted. In addition, the jury would have had to have applied the
inference to go directly to a finding of guilt without examining the whole of
the evidence. For the reasons discussed below, I think that it is highly
improbable that the jury reasoned in this way.
99
If the jury heeded the trial judge’s instructions they would have been
unlikely to reach the conclusion that the accused’s alibi was concocted. In the
portion of the instructions immediately following the erroneous instruction on
alibi, the trial judge gave the following caution:
You have to examine all the evidence when you are deciding whether the
alibi is merely untruthful or was fabricated or concocted in a way designed to
hide guilt. Keep in mind that a person may tell an untrue story for reasons
other than for trying to hide guilt, that the Crown here is not suggesting
to you that the times as they relate to the defence of alibi are concocted.
Rather the Crown is suggesting that the times testified to have been
reconstructed through conversations among and between the accused, Mrs. Hibbert
and the daughters. The Crown is therefore arguing the weight and encouraging
you not to give it much weight, that is the evidence of specific times as
testified to by the accused and family members. [Emphasis added.]
I agree with
the respondent that this passage “could only have served to neutralize the
effect of the erroneous passage of the instruction because it immediately
withdrew it from the jury’s consideration”.
100
My colleague states that despite the trial judge’s clear instruction
that the Crown was not suggesting that the alibi was concocted, the jury might
nonetheless have reached that conclusion from the Crown’s cross-examination of
Mrs. Hibbert. I find no suggestion in the Crown’s cross-examination of Mrs.
Hibbert that the witnesses were lying. In cross-examination of Mrs. Hibbert,
the Crown merely suggests that Mrs. Hibbert assisted the family members to
remember the times of things that occurred on the day of the crime. In doing
so the Crown puts forward the suggestion that there was “some confusion”
regarding the times. Nor did the Crown’s closing argument suggest a concocted
or false alibi.
101
Even in the unlikely event that the jury did conclude that the alibi was
concocted, it seems improbable that the jury would have applied the inference
to proceed directly to a finding of guilt without examining the whole of the
evidence. Immediately preceding the erroneous instruction, the trial judge
provided the jury with the following comprehensive instructions:
It is open to you to consider what effect if any
the conversations among and between the various family and the accused have on
the various times testified to, and it is for you to decide what weight you
attribute to the evidence of the timing of the various events. Clearly the
defence of alibi and issues of credibility are intertwined, and you must know
that the Crown must prove beyond a reasonable doubt that the defence of alibi
cannot succeed. The accused does not have to prove anything.
Keep in mind three things, that if you accept the
evidence in support of the defence of alibi, you must return a verdict of not
guilty if you find that these times just do not allow for this accused to have
committed the acts alleged. If you do not accept the evidence in support of the
defence of alibi, but you are left in a reasonable doubt about it, you must
return a verdict of not guilty. Even if you are not left in a reasonable
doubt by the evidence in support of the defence of alibi, you must still go on
to determine whether or not on the basis of all the evidence the accused is
guilty. [Emphasis added.]
In my view,
the jury would likely take these comprehensive instructions as their guide to
assessing the alibi evidence as opposed to drawing an inference of guilt based
on a theory of concoction that was, as the trial judge carefully reminded, not
before them.
102
My colleague submits that the case was by no means “open and shut” and
notes that the jury deliberated for several days (paras. 72-73). In my view,
the fact that the jury deliberated for several days indicates that they did not
proceed on the erroneous basis that they could move directly from a rejection
of the accused’s alibi to guilt. Perhaps more significant is that after three
days of deliberations the jury asked the trial judge to read back the charge on
circumstantial evidence. The jury’s request to have the direction on circumstantial
evidence repeated suggests that the jury, having rejected the defence of alibi,
went on to determine whether the accused was guilty on the basis of the
circumstantial evidence adduced by the Crown. Had the jury found the alibi to
be concocted and followed the erroneous instruction that they could infer guilt
on this basis alone, they would have required no further clarification on the
distinction between direct and circumstantial evidence.
103
Given the trial judge’s charge in its entirety and the circumstances of
this particular case, I conclude that the danger of a miscarriage of justice
arising from the trial judge’s misdirection on alibi was “more theoretical than
real” (Tessier, supra, at p. 562). The test for the application
of the proviso is not whether it is in theory possible that the verdict would
have been different had the error not been made, but rather whether there is a
reasonable possibility that the verdict would have been different taking into
account the background of the whole trial. As the Ontario Court of Appeal once
observed, “[t]here will probably never be a perfect charge or one that
cloistered appellate counsel cannot find objectionable after minute scrutiny” (R.
v. Demeter (1975), 25 C.C.C. (2d) 417, at p. 436). Though the test for the
application of the proviso is strict, it nonetheless recognizes that while the
accused is entitled to a properly instructed jury he or she is not entitled to
a perfectly instructed one (Jacquard, supra, at para. 2).
104
My colleague notes that on appeal from the first trial in this case, the
Court of Appeal held that the instructions to the jury had not adequately dealt
with the weaknesses in the identification evidence and the court declined to
apply the proviso to cure this error (see para. 68, citing R. v.
Hibbert (1996), 78 B.C.A.C. 277). In my view, applying the proviso in the
circumstances of this trial even though it was not applied in the first trial
creates no inconsistency. In the first trial the Court of Appeal commented at
length upon the seriousness of the trial judge’s failure to give an adequate
warning on identification evidence at para. 63:
The case for the Crown against the appellant was
indeed a strong circumstantial case and the address of counsel for the
appellant at trial had stressed the weakness of the identification evidence
shortly before the judge gave his charge. However, in my view, it was important
that the judge deal with the weaknesses in the identification evidence and
avoid giving the jury the impression that Mrs. McLeod and Mrs. Baker had
identified the appellant as the man who committed the assault. This was
particularly important in the case under appeal because the appellant had
testified, supported by his wife and two stepdaughters, that he was not the
person who had entered the house and assaulted Mrs. McLeod. There was the
possibility that Mrs. McLeod was confused in her evidence over when she had
learned of the military background of the appellant. Further, there was no
evidence that the appellant had any motive for committing the assault on Mrs.
McLeod. The appellant’s credibility and the credibility of Mrs. Hibbert and the
two daughters were significant matters for the jury to consider and weigh with
the weaknesses in the evidence of identification in deciding whether it was
convinced beyond a reasonable doubt that the appellant was the person who
committed the crime. If the learned judge had warned the jury of the
weaknesses in the identification evidence, the jury might have been left with a
reasonable doubt that the Crown had proved that it was the appellant who
committed the assault. [Emphasis added.]
105
Whereas the Court of Appeal concluded that the error made by the trial
judge in the first trial was a serious one, I conclude that the error that was
made by the trial judge in the second trial was not, in all the circumstances,
serious. In my view, there is a compelling rationale underlying the rule that
when applying the proviso, the court looks to the error and whether that error
might have affected the jury. If the court were to look only to the case as a
whole and whether it was overwhelming for any jury, the result would be that
trials would be held over and over again as long as the trial judge’s charge
contained some error, no matter how minute.
106
As I stated at the outset, I am of the view that the proviso should be
applied in this case for the reason that the trial judge’s error was not, in
the circumstances, serious and was unlikely to have affected the jury. This
conclusion is nonetheless inextricably linked to a finding that the weight of
the Crown’s evidence was overwhelming and I do not reject the Court of Appeal’s
conclusion in this regard. Having determined that there was no real possibility
that the error in question affected the reasoning process of the jury, it is
only logical to conclude that the accused was convicted because the evidence
against him was overwhelming.
107
I would therefore apply the curative provision of s. 686(1) (b)(iii)
and dismiss the appeal.
Appeal allowed and new trial ordered, L’Heureux‑Dubé and Bastarache JJ. dissenting.
Solicitors for the appellant: Firestone & Tyhurst,
Victoria.
Solicitor for the respondent: The Ministry of Attorney
General, Vancouver.