r v. R., 2015 NBCA 7

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 161-12-CA FREDERICK BERNARD ANTHONY PROSSER APPELLANT FREDERICK BERNARD ANTHONY PROSSER APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Prosser v. R., 2015 NBCA 7 Prosser c.

R., 2015 NBCA 7 CORAM: The Honourable Justice Larlee The Honourable Justice Deschênes The Honourable Justice Bell CORAM : l’honorable juge Larlee l’honorable juge Deschênes l’honorable juge Bell Appeal from a decision of the Court of Queen’s Bench: December 4, 2012 Appel d’une décision de la Cour du Banc de la Reine : le 4 décembre 2012 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: September 23, 2014 Appel entendu : le 23 septembre 2014 Judgment rendered: January 29, 2015 Jugement rendu : le 29 janvier 2015

Reasons for judgment by: The Honourable Justice Deschênes Motifs de jugement : l’honorable juge Deschênes Concurred in by: The Honourable Justice Larlee The Honourable Justice Bell Souscrivent aux motifs : l’honorable juge Larlee l’honorable juge Bell Counsel at hearing: For the appellant: James J. Matheson For the respondent: Cameron H. Gunn, Q.C. and Kathryn Gregory Avocats à l’audience : Pour l’appelant : James J. Matheson Pour l’intimée : Cameron H. Gunn, c.r., et Kathryn Gregory THE COURT The appeal against conviction is dismissed. LA COUR L’appel de la déclaration de culpabilité est rejeté.

The judgment of the Court was delivered by DESCHÊNES, J.A. I. Introduction [ 1 ] The appellant was convicted on December 4, 2012 of first degree murder ( s. 235(1) of the Criminal Code ), sexual assault causing bodily harm ( s. 272(1) (c)) and sexual assault ( s. 271 (a)) by a court composed of a judge and jury. [ 2 ] Both parties acknowledge the DNA evidence proffered by the Crown on the identity issue was important. It purported to “connect” the appellant with the violent death of the victim, his girlfriend of many years and mother of their two children.

The victim, Sabrina Patterson, died of strangulation and was partially wrapped in a garbage bag dropped on the side of a secondary rural road in a wooded area a few kilometers from the appellant’s residence. [ 3 ] The DNA evidence established, with a very high degree of certainty, that the victim’s blood was found on the bed liner and tailgate of the appellant’s truck and on his pants. The DNA evidence also established that the appellant’s semen was present in the victim’s vaginal and rectal area and around her neck. It is not necessary to discuss in any detail the additional circumstantial evidence.

In general terms, it consisted of a difficult relationship between the victim and the appellant, and of highly incriminatory pre-incident statements threatening to inflict upon the victim the kind of injuries that eventually caused her death. The Crown also relied on post-incident conduct and inconsistent statements.

[4] The dominant issues before us revolve around the trial judge’s instructions to the jury relatingto the DNA evidence and the fact that the transcript of the evidence is replete with missing portions identified as “inaudible”. Thegrounds of appeal are as follows:

a) The learned trial judge erred in law in failing to provide directions to the jury as to forensic DNA evidence in keeping withR. v. Terceira, (SCC), [1999] 3 S.C.R. 866;

b) The learned trial judge erred in law in providing inadequate directions to the jury that the expert DNA opinion evidencecarried little or no weight, as the facts upon which that opinion was based were not proved in evidence at all, based upon R. v. Abbey, (SCC), [1982] 2 S.C.R. 24, R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852 and R. v. Terceira, (SCC), [1999] 3 S.C.R. 866; and

c) The inability to prepare a complete and accurate transcript of the trial proceedings in this matter has resulted in a“miscarriage of justice”, as per R. v. Hayes, (SCC), [1989] 1 S.C.R. 44. II. Analysis [5] It should be noted here that grounds of appeal (

a) and (

b) deal with alleged errors of law of twodifferent kinds: one characterized as a non-direction or lack of proper instructions concerning the use and limitations of DNA evidence(ground of appeal (a)), and the other with the lack of a proper instruction as to the weight to be attributed to the DNA evidence in view ofthe absence of a supporting evidentiary foundation (ground of appeal (b)). A. The ground of appeal related to “inaudible” references (ground c) [6] It is appropriate to start with the third ground of appeal as success on this ground wouldobviate the need to deal with the other grounds.

The appellant, relying on R v. Hayes, (SCC), [1989] 1 S.C.R. 44,[1989] S.C.J. No. 1 (QL), argues the absence of a complete and accurate record of the proceedings has resulted in a miscarriage ofjustice. [7] The respondent admits there are 611 “inaudible” references in the entire transcript, whichcontains more than 165,000 words. The “inaudible” words consist of single words dispersed throughout the transcript and represent lessthan 0.5% of the entire transcript. None of these numbers have been challenged by the appellant. In any event, the number of “inaudible”references is not determinative of the issue.

What is of significance is whether the state of the transcript is such that it “prevents theappellant from pursuing a meaningful appeal” (R. v. Paul, 2009 ONCA 443, [2009] O.J. No. 2184 (QL), at para. 41, leave to appealrefused [2009] S.C.C.A. No. 450 (QL). See also Roy and Léger v. Assumption Mutual Life Insurance Co., 2003 NBCA 21, 258 N.B.R.(2d) 310, at para. 9; and Dykeman v. Dykeman, 2007 NBCA 40, 314 N.B.R. (2d) 80, at para. 8). As pointed out by the respondent in itswritten submission, R. v. Le, 2011 MBCA 83, [2011] M.J. No. 319 (QL), at para. 278, leave to appeal refused [2011] S.C.C.A.

No. 526(QL), provides a useful

summary of the important factors to consider in determining whether a miscarriage of justice has resulted from agap in a transcript: In

summary, in order to determine whether a gap in the transcript results in a miscarriage of justice, the court must consider the effect ofthe gap in relation to any possible prejudice to an appellant’s ability to appeal.

The court may consider matters such as the notes of thetrial judge, whose evidence is missing, the extent of the missing evidence, the relevant issues at trial, the closing addresses by counsel,the judge’s final instructions and whether there is any evidence available which suggests that there was anything of significance saidduring the gap. [para. 278] [8] In the matter before us, the grounds of appeal relate to alleged errors in the trial judge’sinstructions to the jury.

There are neither “inaudible” words nor any gaps in those instructions. [9] The appellant also points out that there are more than one hundred “inaudible” words in thetranscription of the testimony of one of the Crown’s main witnesses, Ms. Joy Kearsey, a forensic biologist at the RCMP forensic lab in

Halifax. It is alleged the missing portions of the transcript are “problematic” as they go “to the very root of the appellant’s grounds ofappeal”. With respect, this contention is without merit for at least two reasons: one, Ms. Kearsey’s report was admitted by consent andher testimony merely explained in more comprehensive language the substance of her report; and two, the other grounds of appeal havenothing to do with the content of the DNA experts’ reports.

On the contrary, as pointed out by the respondent, the grounds of appeal takeissue with the adequacy of the trial judge’s instructions to the jury. [10] In my view, this ground of appeal is without merit: the appellant has failed to demonstrate thatthere is a serious possibility that the omissions have deprived him of a ground of appeal, the very principle adopted in Hayes upon whichhe relies (see paragraph 10 of Hayes). B.

The ground of appeal alleging non-direction with respect to forensic DNA evidence (ground a) [11] The first ground of appeal alleges the trial judge failed to properly instruct the jury as to thelimits of the DNA evidence and the use to which it could be put, as suggested in R. v. Terceira, (SCC), [1999] 3 S.C.R.866, [1999] S.C.J. No. 74 (QL), affirming (ON CA), [1998] O.J. No. 428 (C.A.) (QL). [12] In Terceira, the Supreme Court was in substantial agreement with the comments of FinlaysonJ.A. and the cautious approach taken by Campbell J.’s instructions to the jury with respect to DNA evidence.

Finlayson J.A.’s relevantcomments are contained in para. 65: At the conclusion of the evidence, the trial judge in his instruction should advise the jury in the normal way as to the limits of the expertevidence and the use to which it can be put. Additionally, in the case of DNA evidence, he or she would be well advised to instruct thejury not to be overwhelmed by the aura of scientific infallibility associated with scientific evidence.

The trial judge should tell them touse their common sense in their assessment of all of the evidence on the DNA issue and determine if it is reliable and valid as a piece ofcircumstantial evidence. [para. 65] Finlayson J.A. also reproduced portions of Campbell J.’s instructions to the jury: The DNA tests in this case were conducted soon after The Centre of Forensic Labs opened itself for DNA case work. And there isevidence that challenges the conduct of the DNA tests and evidence that challenges the results.

These are reasons for you to take a goodclose look at the DNA evidence, yourself, all the evidence you’ve heard from the Crown and the defence, and scrutinize it to see if youconsider it reliable as a piece of circumstantial evidence. You have obviously followed it closely, spent a lot of time in court looking atthe autorad projections, various aspects of the bands and their measurement and

interpretation. You’ve seen those from both sides. I don’tintend to repeat all of that. You have part of it, or small parts of it, anyway, in some of the material in front of you. You followed it veryclosely. I am confident you will use your common sense, you won’t be overwhelmed by any aura of scientific authority advanced by anyof the DNA witnesses. The assessment of the evidence really does boil down to a common sense assessment of the evidence, of thevarious opinions that you have heard, your assessment. […] I turn to DNA as circumstantial evidence. Remember it’s only one form of circumstantial evidence.

You do not apply the standard ofproof beyond a reasonable doubt to the individual pieces of circumstantial evidence upon which the Crown relies. I say it again.

I willsay it at least one more time: Don’t get bedazzled or unduly swayed by some of the large numbers used in the DNA evidence.Remember, also, the burden of proof is always on the Crown, the burden never shifts, there is never any obligation on the defence toprove anything. [paras. 57 and 62] [13] In essence, the appellant’s contention is that DNA evidence, particularly the potentialprejudicial effect of evidence related to probability statistics, necessitates an instruction in relation to its use and limitations.

Relyingmainly on Terceira, the appellant contends that the jury should have been instructed as follows, and the failure to do so amounts to anon-direction that constitutes an error of law sufficient to warrant a new trial: a. The jury should be generally instructed on the use and limits of DNA evidence.

b. The jury should be admonished against becoming overwhelmed by the aura of scientific infallibility associated with thisclass of evidence which are no more than the product of mathematical and scientific testing and theory, not concrete facts. c. The jury should be told to use common sense in their assessment of all of the evidence of the DNA issue. d. That DNA is just one piece of circumstantial evidence of the Crown’s case to prove identity; it is not, in itself, a predictor ofguilt. [14] At first blush, the appellant’s position as to the inadequacy of the instructions on DNA evidenceis attractive.

One could understandably prefer a more robust charge on DNA evidence to decant and simplify the evidence of the DNAspecialists. As suggested in Terceira, one might prefer stronger language to ensure that the jury had a good grasp of the use andlimitations of the evidence on “matches” and population genetics. [15] However, a review of some of the principles involved in assessing a jury charge, or a partthereof, to determine its adequacy indicates more than a first impression is required. R. v. Jacquard, (SCC), [1997] 1S.C.R. 314, [1997] S.C.J.

No. 21 (QL), is perhaps where one should start: Having read and reread the charge, I have no doubt that the jury was properly instructed on the meaning, scope, and effect of “plannedand deliberate”. Moreover, I cannot emphasize enough that the right of an accused to a properly instructed jury does not equate with theright to a perfectly instructed jury. An accused is entitled to a jury that understands how the evidence relates to the legal issues. Thisdemands a functional approach to the instructions that were given, not an idealized approach to those instructions that might have beengiven.

Using such a functional approach, I find added support for the conclusion that the jurors were properly instructed in this case.[para. 32] [16] A useful guide for appellate review based on the principles enunciated in Jacquard is set out inO’Brien v. R., 2003 NBCA 28, 257 N.B.R. (2d) 243, at paras. 25-26 (per Drapeau C.J.N.B.) and applied in Cormier v. R., 2012 NBCA76, 393 N.B.R. (2d) 118, at paras. 19-23 (per Bell J.A.), leave to appeal refused [2012] S.C.C.A. No. 562 (QL). Those principles havebeen summarized correctly by the respondent as follows: (

i) a jury charge must be considered in totality, as well as contextually; (ii)appellate review is driven by case-specific considerations of substance, not form; (iii) the reviewing court should apply a functionalapproach; (iv) a charge will be adequate if it features instructions that enable the jurors to understand the case before them and to fulfilltheir adjudicative mandate; and (

v) flawlessness in a charge to the jury is neither expected nor required. These guidelines are meant to beapplied when the adequacy of instructions as a whole is being examined, but they are also useful when one or more portions of a chargeto the jury are being challenged as to adequacy. [17] Applying those principles, I find the jurors were properly instructed despite the lack ofinstructions by the trial judge on the use and limitations of DNA evidence.

My reasons, with respect to this ground of appeal inparticular, are based on a review of the “context” that undoubtedly brought the trial judge to instruct the jury as he did on DNA evidence.Much of what is discussed as “context” is also of utmost importance with respect to the second ground of appeal, which allegesinadequacies in the jury charge on the issue of the lack of evidentiary foundation to support the opinions of the DNA experts.

(1) The context and the trial [18] Before dealing with the merits of the first ground of appeal (inadequacies in the instructions onthe use and limitations of DNA evidence), important points must be made. First, it must be remembered that, in Terceira, the trial judgewas dealing with what was considered at the time to be a “novel” science. The DNA evidence being proffered by the Crown faced aserious challenge by defence experts relating both to the process and protocol at the laboratory level and to reliability.

To a large extent,the debate was about the methodology used to determine a match and to calculate the statistical likelihood of another person having thesame DNA pattern as that of the suspect. In addition, much of the discussion on appeal in Terceira revolved around the “threshold test ofreliability” to be applied by trial judges when confronted with novel scientific theory or technique. [19] In this case, the qualifications of the DNA experts were never in issue and the admissibility ofthe DNA opinion evidence adduced was never contested.

No one suggested, at trial or on appeal, that the opinions being expressed bythe DNA experts dealt with a novel science. In fact, the reports of the two experts on DNA evidence were introduced as exhibits with the

consent of experienced defence counsel. Of course, it became obvious during the trial that although the reports had been admitted by consent, the accused had reserved the right to challenge the reliability of the opinions being expressed therein. However, the reliability issue did not relate to the experts’ qualifications or to the “science” itself. The reliability issue related to the lack of an evidentiary foundation to support the opinions by reason of the Crown’s failure to call as witnesses the actual technicians who performed the DNA testing.

More will be said on this last point later when the second ground of appeal is discussed.

In other words, it is clear that the methodologies used to obtain a match, and the evidence about the statistical likelihood of another person having the same DNA pattern as that of the appellant or the victim, were not challenged either by way of cross-examination or by expert evidence adduced by the appellant. [ 20 ] I am cognizant of the fact defence counsel emphasized, on cross-examination and in his address to the jury, that no one could give an opinion as to when the victim’s blood on the appellant’s pants and truck’s box liner and tailgate, or the appellant’s semen in the victim’s genital area and on her neck, had been deposited.

He argued that, considering the lengthy ongoing relationship between the appellant and the victim, the DNA evidence did not have any significance in terms of identifying the perpetrator of this crime. In other words, her blood and his semen could have been deposited quite some time before the victim was killed. That argument, of course, has nothing to do with the methodology used to obtain the DNA evidence. [ 21 ] Numerous witnesses testified concerning various items, including swabs, taken from the appellant and the victim.

The items were tested by members of the Identification Team for the possible presence of substances, such as blood, that could lead to further testing for DNA evidence. These items were handed over to an exhibit person and eventually made their way to the RCMP Forensics Laboratory Services to be examined. The tests performed by the analysts at the RCMP laboratory produced data that was turned over to the forensic DNA specialist of the RCMP laboratory, Joy Kearsey, in electronic form. Ms. Kearsey’s opinions and conclusions were drawn from this raw electronic data.

She did not see any of the exhibits used by the laboratory analysts nor did she supervise their work. The second DNA expert who testified at trial, Curtis Hildebrandt, an analyst and reporting officer at Warnex Pro-DNA Services, also did not see the exhibits used by the analysts nor did he supervise their work. The appellant takes no issue with the admissibility or continuity of the DNA samples handed over to the laboratory.

The focus of his concerns relates to what may have taken place in the laboratory, and the Crown’s choice not to call as witnesses the technicians involved in producing the data in order to provide an evidentiary foundation for the proffered expert opinions. [ 22 ] Despite these concerns, and after cross-examination with respect to the experts’ qualifications, defence counsel at trial (not counsel on appeal) consented to the admissibility of the two experts’ curriculum vitae and reports as exhibits.

The trial judge, with the consent of defence counsel, qualified both Joy Kearsey and Curtis Hildebrandt as forensic DNA specialists capable of giving the opinion evidence contained in their reports, and accepted the reports as exhibits for the jury’s consideration. [ 23 ] In general terms, the DNA evidence provided by the experts was used for two purposes. The first use was to provide evidence that the appellant’s DNA “matched” the DNA in semen found in the victim’s genital areas and on her neck, and that the DNA found in blood on Mr.

Prosser’s jeans and his truck’s box liner and tailgate “matched” the victim’s DNA. The second branch of the reports involved the application of population genetics where probability statistics are used to give some enhanced meaning to the “matches”. In other words, the purpose is to show the statistical likelihood that another person would have the same DNA pattern as that of the appellant and the victim. [ 24 ] As mentioned, neither Ms. Kearsey nor Mr. Hildebrandt had direct input into the raw electronic data provided or any supervisory role over the RCMP laboratory technicians.

However, the respondent has, in its written submission, provided a useful

summary of Ms. Kearsey’s evidence on the important “reliability” issue raised by the appellant. Her testimony provides some background as to why she felt comfortable providing her opinions despite the fact that no technician from the RCMP laboratory involved in providing the data testified. [ 25 ] I take the liberty of reproducing verbatim the Crown’s

summary, which I found to be accurate upon verification of Ms. Kearsey’s testimony: (

i) She first joined the RCMP lab in May of 1997 and was first employed as a technologist in the laboratory. (ii) The tests which produced the data from which she drew her conclusions were based upon the work of several other people working a collaborative approach at the RCMP Forensic Laboratory. (iii) The Laboratory works on standard operating procedures and policies for every step in the process which policies and procedures

are available to her. (iv) If anything would happen that’s outside of that standard policy, that information would be made available to her. (

v) That there are both positive and negative controls so if anything was incorrect or if there’s any concern with any controls, that information would also be made available to her. (vi) That there was no indication of any problem. (vii) There is a very detailed chain of custody report for each exhibit, each having been obtained from the exhibit or each DNA abstract and that all exhibits were returned to the Codiac RCMP with the exception of some exhibits which were forwarded to a private laboratory. [ 26 ] As is now the practice adopted by some trial judges in this province, the proposed instructions to the jury were put in written form and provided to counsel for input before being delivered to the jury as a tool to assist them in their deliberations.

In this case, counsel were provided with a rough draft of the proposed instructions long before the final draft. [ 27 ] Defence counsel stated his position early on concerning the expert opinions of Ms. Kearsey and Mr. Hildebrandt on DNA evidence. Even at that stage, however, counsel’s position was not that the jury must be instructed to give no weight whatsoever to the expert DNA evidence.

His position was articulated as follows: The factual underpinning of the DNA evidence has not been adduced in evidence and thus [the DNA opinion evidence] has no weight or minimal weight and the jury must be so instructed. [Emphasis is mine.] [ 28 ] The prosecutor’s short reply, at that point, was that “the report got in by consent so the results are admissible” and that “the weight to be attributed to the DNA opinion evidence would be a matter for the jury to decide”. [ 29 ] Three days later, on December 3, counsel were provided with another draft purporting to contain the instructions the jury would eventually consider.

A further discussion took place before the final version was adopted by the trial judge. It should be noted here that the proposed instructions were scrutinized in their entirety and that, at one point, the trial judge inquired about the necessity of entering into a more detailed analysis of the DNA evidence. No one took issue with his decision to avoid a repetition of the DNA evidence which the jury had just heard over many hours.

After all, both parties had outlined their respective views on how the DNA evidence should impact on the issue of identity and the appellant had clearly brought home to the jury his message about the limitations of the DNA evidence on identity, a view that was repeated when the trial judge outlined the defence’s position for the jury. [ 30 ] It is instructive at this point to set out some of the pre-charge discussions in connection with the grounds of appeal being raised as they shed some light on the position of defence counsel at trial and the argument of counsel on appeal: MR.

FOWLER : I have some comments with respect to page 15, I guess it goes into 16, My Lord. THE COURT : Okay. MR . FOWLER : Generally with respect to paragraphs three on page 15,…

THE COURT : Okay. MR . FOWLER : …four and five on page 16. THE COURT : Sure. MR . FOWLER : I don’t think the jury fully appreciates the underpinning the facts in which Joy Kearsey and Curtis Hildebrandt provide their opinion have not been proven whatsoever. I was – the charge to me equivocates with respect to this.

I think it must be pointed out to the jury that the Crown chose not to call the individuals who comply – compiled the DNA evidence so that the factual basis on which they base their opinion haven’t been proven, and I would hope that words to that effect could be inserted perhaps at the end of… THE COURT : Probably, the place where that would go if… MR . FOWLER : If, if – I think it would probably be – go in paragraph three on page 15 at the end of the sentence “…compiled by others.” I suggest which the Crown did not call the factual burs--…basis for the expert opinion has not been proven by the Crown.

THE COURT : Okay. Do you have an opinion with respect to that? MS . ST-JACQUES : The Crown had no obligation to prove what the technician does or not. This is – and I think you addressed that issue on paragraph two when you explained that they base their opinion on (Inaudible) recorded their findings,…” at just the end of your second paragraph. THE COURT : Yeah, and I did find some authority in the authorities you gave me, Mr.

Fowler, to the effect that, that if they follow what is common practice, which is what she testified to, that you, you point that out, and that’s why I used the words that, “…the weight of the opinion may recede…” MR . FOWLER : I understand that, but I don’t believe that Joy Kearsey – Curtis Hildebrandt certainly didn’t testify to that. THE COURT : No. MR . FOWLER : And, Joy Kearsey, if she testified to that, it was by way of hearsay evidence. She cannot comment on other people’s testing procedures.

THE COURT : What she commented on, to my recollection which we can check, what she said is, “Our practice is as follows:” And she went through what their practice was, and then she went a step further and said if there was something that diverged from the practice, that would be noted in the report that she was to analyze and would deal with whatever that might be. That’s my recollection of the evidence. MR . FOWLER : But the fact of the matter is without the calling of that particular evidence, we don’t know about contamination. We don’t know anything about that. And, I… THE COURT : Yeah. No… MR .

FOWLER : I understand Your Lordship, what Your Lordship is saying, and I understand what the authorities say.

THE COURT : Yeah. MR . FOWLER : With respect to para… THE COURT : What, what wording would you like? MR . FOWLER : Well… THE COURT : Something like… MR . FOWLER : So that – I think I’ve done – there’s – as we go into page 16… THE COURT : Yeah. MR . FOWLER : “But when an opinion based on second-hand information is admitted, and the second-hand information is not established before the trier of fact,…” I think it must be pointed out, “as in this case” should be inserted. THE COURT : Yeah, I could, I could live with that. MR . FOWLER : Okay. MS . ST-JACQUES : Yes.

THE COURT : So, that would be just starting on second-hand, and the second-hand information is, is not otherwise established before the trier of fact, as, as occurred in this case? MR . FOWLER : Yes. MS . ST-JACQUES : That’s fine. THE COURT : As occurred in this case. Then, the weight of the opinion may recede accordingly. MR . FOWLER : Or be given no weight whatsoever. I know the Crown is not gonna(ph) agree with that, but if I had my choices, that’s what I’d like to see. THE COURT : Yeah. MR . FOWLER : The next… THE COURT : Are you gonna(ph) agree to that?

MS. ST-JACQUES : No. MR . FOWLER : Surprise. I do not – I don’t know if the next sentence is necessary, but if it is necessary, the word “must” has to be changed to “may”. THE COURT : Okay, let’s see. Okay, I don’t have a problem with that. Because we kind of agreed the other day that this would all go to weight in any event, so may rather than must… MR. SAVOIE : It all makes sense with the context of the… THE COURT : Yeah, okay. MR . FOWLER : Those are my comments with respect to that portion. THE COURT : Okay, so we’ll make those changes.

So, 16 with the changes […] [ 31 ] Most of the changes suggested by defence counsel are reflected in the trial judge’s instructions to the jury as follows: I want to give you some general instructions with respect to Expert witness: Sometimes, knowledge of a technical subject may help jurors decide a case. Persons who are qualified in that subject, by education, training or experience may state their opinions about it. They may also give the reasons for their opinions. In this matter there were 3 experts: Dr. Halman Protzner, the pathologist, Joy Kearsey and Curtis Hildebrandt both gave evidence on DNA.

The opinions of experts are just like the testimony of any other witnesses. Just because an expert has given an opinion does not require you to accept it. You may believe or rely upon the opinion as much or as little as you see fit. You should consider the education, training and experience of the expert, the reasons given for the opinion, the suitability of the methods used and the rest of the evidence in the case when you decide how much or little to rely on the opinion. It is up to you to decide. With respect to Ms. Kearsey and Mr. Hildebrandt’s evidence.

It must be mentioned that they relied on evidence developed and analyzed by others. As Ms. Kearsey stated, others did the actual analysis, recorded their findings, which digital record was subsequently interpreted and analyzed by Ms. Kearsey. Experts usually form their opinions by applying their training, education and experience to a number of facts that the expert assumes or relies on as the basis for his or her analysis. In this case, the DNA evidence was compiled by others. It is well established that, as a general rule, an expert may base his or her opinion on second-hand information.

But when an opinion based on second-hand information is admitted, and the second-hand information is not otherwise established before the trier of fact, as occurred in this case, the weight of the opinion may recede accordingly. However, where the expert arrives at his or her opinion on the basis of forms of enquiry and practice that are accepted means of decision making within that expertise, weight may be given to their evidence. What an expert assumes or relies on as a fact for the purpose of offering his or her opinion may be the same as what you find as facts from the evidence introduced in this case.

Or it may be different. To the extent that the facts you find are different from the facts assumed or relied upon by the expert in reaching his or her conclusion, you may consider the expert’s opinion less helpful to you in deciding this case. How much or little you believe of or rely upon and expert’s opinion is entirely up to you. [ 32 ] The instructions chosen by the trial judge closely mirror those suggested in The Honourable

Justice David Watt’s Ontario Specimen Jury Instructions (Criminal) (Toronto: Thomson Carswell, 2005) at 112-113. They do not contain words the appellant considered necessary to avoid an error of law (see paragraph 13 herein). The appellant argues the instructions required a discussion on the use and limitations of DNA evidence, an admonishment against becoming overwhelmed by the aura of scientific infallibility and a clear statement that DNA was just one piece of circumstantial evidence of the Crown’s case to prove identity of the perpetrator and that it was not, in itself, an indicator of guilt.

The necessary instruction, as advocated by the appellant, is the one suggested in Gerry A. Ferguson, The Honourable Mr. Justice Michael R. Dambrot, and The Honourable Madam Justice Elizabeth A. Bennett, Canadian Criminal Jury Instructions , 4th ed. (Vancouver, B.C.: CLE BC, 2005) (loose-leaf updated 2014), ch. 4 .59, entitled DNA Identification, where instructions regarding the nature of DNA Genetic Profile (para. 4.59.2), the Accuracy of DNA Genetic Profile (para. 4.59.3) and Use of DNA evidence (para. 4.59.4) are set out.

The appellant maintains these instructions are necessary to avoid the danger inherent in DNA evidence, and a failure to give such an instruction amounts to a non-direction of such magnitude as to warrant a new trial. [ 33 ] In my view, the context in which the trial judge prepared his instructions is determinative of this first ground of appeal and, at the risk of failing to mention other important contextual facts, I would summarize it as follows: (

i) The appellant did not challenge the admissibility of the DNA evidence.

He did not object to the capacity of the experts to give opinion evidence as to all matters covered in their reports, subject to his argument on reliability anchored to the lack of an evidentiary foundation. (ii) By consenting to the admissibility of the DNA evidence, it is a reasonable inference the appellant is conceding the opinion evidence is relevant to a material issue, the witness is qualified to give opinion evidence relating to the subject matter of opinion evidence sought to be admitted and finally, the proposed opinion does not run afoul of any exclusionary rule.

Of course, consent to the admissibility of opinion evidence does not relieve the trial judge of his function as “gatekeeper”. Thus, the primary responsibility to ensure that the pre-conditions to admissibility exist rests with the trial judge ( see R. v. Abbey, 2009 ONCA 624 , [2009] O.J. No. 3534 (QL) , at paras. 79-80 , leave to appeal refused [2010] S.C.C.A. No. 125 (QL)). (iii) However, the consent to admissibility has an impact on the issue being discussed.

Recall the appellant is arguing that the necessity to instruct the jury as he suggests emanates from the danger inherent in DNA evidence on the issue of identity. However, the accuracy of the DNA evidence was not challenged except by the appellant’s speculation that contamination was a possibility as the laboratory technicians did not testify. Finally, the DNA evidence was not challenged or opposed by other experts and was admitted without opposition. In that context, it is somewhat difficult to conclude that the trial judge’s warning was not sufficient.

After all, although he did not use words like “overwhelming”, he did make it clear that it was entirely up to the jury to decide who to believe and what to accept as evidence, despite the impressive credentials of the DNA experts. He ended his instructions on DNA evidence with the following words: How much or little you believe of or rely upon an expert’s opinion is entirely up to you. This is as close as one can get to warning the jury not to be “overwhelmed” by the opinion of the DNA experts without using the word itself.

In my view, there is merit in the respondent’s argument that “the warning alerted the jury sufficiently to the danger in circumstances where there was no real danger”. (iv) Defence counsel’s perceived “danger” of the DNA evidence (reflected in his address to the jury, and in the formulation of the defence position produced for the trial judge, which found its way into the latter’s instructions) is important. The “danger” perceived by defence counsel had nothing to do with the qualifications of the experts or the DNA science or the possibility of contamination.

The “danger” lay in the fact that no one knew when the DNA was “deposited” on the victim’s body and on the appellant’s pants and truck liner and tailgate. What follows is how defence counsel explained it to the jury: It is no surprise that her DNA would have been found anywhere with anything that Fred [the appellant] or they utilized. DNA is usually used in situations where people don’t have relationships. If my DNA was found in something belonging to Sabrina Patterson [the victim], that would be one thing, but if someone has a relationship with her and DNA is found, that’s quite different.

Remember we don’t know how long it was there. We don’t know when it was deposited. (

v) Both parties had considerable input in the formulation of the trial judge’s instructions. They accompanied him in a paragraph-by- paragraph scrutiny. They were asked their views as to whether more should be said on DNA evidence apart from what the judge proposed. Except with respect to the issue of reliability, which was raised as a result of the absence of the laboratory technicians as witnesses, the appellant did not ask that the instructions contain what is now advocated on appeal. More specifically, there was no

mention by anyone that the trial judge should discuss the process involved in DNA typing and profiling. Of course, the ultimateresponsibility to deliver proper instructions rests with the trial judge. On the other hand, what defence counsel has to say in the course ofa pre-charge conference may be of the utmost importance. As the Supreme Court put it in R. v. Royz, 2008 SCC 13, [2009] 1 S.C.R. 423:“[t]rial counsel are well situated to assess whether the judge has given the jury an adequate review of the evidence for the purpose of thedefence theory being pursued” (para. 3).

There was no reason in this case to second-guess the position adopted by experienced defencecounsel. He may well have been harboring the fear that a request for more comments on DNA evidence in the judge’s instructions mightwork against the appellant.

He may also have been of the view the best strategy in this case was not to challenge the experts and thescience, but to attack the results of the DNA tests by focusing on the reliability issue grounded on the lack of an evidentiary foundationand the experts’ incapacity to put a time frame on when the DNA evidence was “deposited”. (vi) In view of the position on appeal as opposed to the position adopted by counsel at trial, I find it instructive to reproduce some ofthe comments of Doherty J.A. in R. v. Polimac, 2010 ONCA 346, [2010] O.J. No. 1983 (QL), at paragraphs 96-97, leave to appealrefused [2010] S.C.C.A.

No. 263 (QL): […] Counsel’s duty to assist the court in fulfilling its obligation to properly instruct the jury, referred to by Fish J. in R. v. Khela, 2009SCC 4 , [2009] 1 S.C.R. 104 at para. 49, takes on added significance where counsel has been given a full copy of the proposedinstructions and an ample opportunity to vet them, and has engaged in a detailed pre-trial dialogue with the trial judge.

In thosecircumstances, counsel’s position at trial becomes very important when evaluating complaints, raised for the first time on appeal, thatmatters crucial to the defence were not properly addressed by the trial judge in her instructions. Counsel’s position at trial is of course not determinative when misdirection or non-direction is raised as a ground of appeal. A legal errorremains a legal error even if counsel does not object or even supports the erroneous instruction: see R. v. Wright (2009), 2009 ONCA 623, 98 O.R. (3d) 665 (C.A.) at para. 27; R. v. Van, 2009 SCC 22 , [2009] 1 S.C.R. 716 at para. 43.

Jury instructions,particularly about the manner in which juries may consider parts of the evidence, are not, however, designed to formulate legal principlesfor the jury or offer abstract verbalizations of those principles. Jury instructions about the evidence must ensure the following: first, thatthe jury understands how the evidence can and cannot be used in the context of the particular case; and second, that the jury understandsthe positions taken by the defence and Crown with respect to that evidence.

Counsel’s considered position after examining the proposedinstruction sheds valuable light on whether that proposed instruction met those two goals. This instruction did. [paras. 96-97] [34] For all these reasons, my view is that the first ground of appeal has no merit. C.

The ground of appeal related to the lack of evidentiary foundation and the trial judge’s instructions to the jury (ground b) [35] The essence of the appellant’s position on appeal is that because the DNA experts relied on dataprovided to them by technicians in the RCMP laboratory, over which they had no supervision and who were not called as witnesses, thetrial judge had an obligation to warn the jury that such data was not proof of the underlying facts and that no weight could accordinglybe given to the opinions. The appellant relies on R. v. Abbey, (SCC), [1982] 2 S.C.R. 24.

I have already indicated this isnot exactly the position adopted by defence counsel at trial (see para. 27). Trial counsel took the position that the trial judge had anobligation to instruct the jury as follows: in view of the lack of evidence from the laboratory technicians, the jurors had to give “noweight” or “minimal” weight to the evidence. [36] The respondent offers an excellent

summary, which I endorse, of the evolution that has takenplace with respect to the admissibility of expert evidence. Almost 50 years ago, the Supreme Court established an expert’s opinion isadmissible even if founded on hearsay evidence with the ultimate question being one of weight: Saint John (City) v. Irving Oil Co., (SCC), [1966] S.C.R. 581. The issue of the admissibility of expert opinion based on unproven hearsay evidence resurfaced inR. v.

Abbey, (SCC), [1982] 2 S.C.R. 24, where the opinion of a psychiatrist regarding the accused’s sanity was basedupon bizarre and unstable conduct and hallucinations related to him by the accused who did not testify. It is in that context that DicksonJ. for the Supreme Court stated “[b]efore any weight can be given to an expert’s opinion, the facts upon which the opinion is based mustbe found to exist” (page 46). [37] R. v. Abbey was the subject of much attention some eight years later in R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852, [1990] S.C.J. No. 36 (QL).

Wilson J., for the Court, reiterated the principles to be derived fromAbbey, namely: (

a) expert opinion is admissible, if relevant, even if based on second-hand evidence; (

b) hearsay evidence is admissible,not as evidence going to prove the existence of the facts, but to indicate the basis for the opinion evidence; (

c) where the opinion is basedon hearsay evidence, the problem is the weight to be attributed to the opinion; and (

d) before any weight can be given to an expert’sopinion the facts upon which the opinion is based must be found to exist (see paragraph 66). In paragraph 74, however, Justice Wilsonlaid to rest some of the misconceptions held by many about Abbey:

If the majority of the Court of Appeal is suggesting that each of these specific facts must be proven in evidence before any weight couldbe given to Dr. Shane’s opinion about the accused’s mental state, I must respectfully disagree. Abbey does not, in my view, provide anyauthority for that proposition. The Court’s conclusion in that case was that the trial judge erred in treating as proven the facts upon whichthe psychiatrist relied in formulating his opinion. The solution was an appropriate charge to the jury, not an effective withdrawal of theevidence.

In my view, as long as there is some admissible evidence to establish the foundation for the expert’s opinion, the trial judgecannot subsequently instruct the jury to completely ignore the testimony. The judge must, of course, warn the jury that the more theexpert relies on facts not proved in evidence the less weight the jury may attribute to the opinion. [para. 74] [38] The concurring reasons of Sopinka J. in Lavallee are of considerable importance in addressingthis ground of appeal.

They deal with some of the problems created by Abbey, while providing insight to what I consider is a balancedapproach, which is the one applied by the trial judge in his instruction regarding the failure to call the technicians as witnesses: Abbey has been roundly criticized: see, e.g., Schiff, Evidence in the Litigation Process, vol. 1 (3rd ed. 1988), at pp. 473-76; and Delisle,Evidence: Principles and Problems (2nd ed. 1989), at pp. 477-79. The essence of the criticism is that Abbey sets out more restrictiveconditions for the use of expert evidence than did previous decisions of this Court (i.e., City of St.

John v. Irving Oil Co., (SCC), [1966] S.C.R. 581; Wilband v. The Queen, (SCC), [1967] S.C.R. 14; and R. v. Lupien, (SCC),[1970] S.C.R. 263). Upon reflection, it seems to me that the very special facts in Abbey, and the decision required on those facts, havecontributed to the development of a principle concerning the admissibility and weight of expert opinion evidence that is self-contradictory. The contradiction is apparent in the four principles set out by Wilson J. in the present case, at pp. 893, which I reproducehere for the sake of convenience: 1.

An expert opinion is admissible if relevant, even if it is based on second-hand evidence. 2. This second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidencegoing to the existence of the facts on which the opinion is based. 3. Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion. 4. Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist.

The combined effect of numbers 1, 3 and 4 is that an expert opinion relevant in the abstract to a material issue in a trial but based entirelyon unproven hearsay (e.g., from the mouth of the accused, as in Abbey) is admissible but entitled to no weight whatsoever. The questionthat arises is how any evidence can be admissible and yet entitled to no weight.

As one commentator has pointed out, an expert opinionbased entirely on unproven hearsay must, if anything, be inadmissible by reason of irrelevance, since the facts underlying the expertopinion are the only connection between the opinion and the case: see Wardle, “R. v. Abbey and Psychiatric Opinion Evidence:Requiring the Accused to Testify” (1984), 17 Ottawa L. Rev. 116, at pp. 122-23.

The resolution of the contradiction inherent in Abbey, and the answer to the criticism Abbey has drawn, is to be found in the practicaldistinction between evidence that an expert obtains and acts upon within the scope of his or her expertise (as in City of St. John), andevidence that an expert obtains from a party to litigation touching a matter directly in issue (as in Abbey). In the former instance, an expert arrives at an opinion on the basis of forms of enquiry and practice that are accepted means of decisionwithin that expertise.

A physician, for example, daily determines questions of immense importance on the basis of the observations ofcolleagues, often in the form of second- or third-hand hearsay. For a court to accord no weight to, or to exclude, this sort of professionaljudgment, arrived at in accordance with sound medical practices, would be to ignore the strong circumstantial guarantees oftrustworthiness that surround it, and would be, in my view, contrary to the approach this Court has taken to the analysis of hearsayevidence in general, exemplified in Ares v. Venner, (SCC), [1970] S.C.R. 608. In R. v.

Jordan (1984), (BC CA), 39 C.R. (3d) 50 (B.C.C.A.), a case concerning an expert’s evaluation of the chemical composition of an alleged heroinspecimen, Anderson J.A. held, and I respectfully agree, that Abbey does not apply in such circumstances. (See also R. v. Zundel (1987), (ON CA), 56 C.R. (3d) 1 (Ont.

C.A.), at p. 52, where the court recognized an expert opinion based upon evidence “...of a general nature which is widely used and acknowledged as reliable by experts in that field.”) Where, however, the information upon which an expert forms his or her opinion comes from the mouth of a party to the litigation, or

from any other source that is inherently suspect, a court ought to require independent proof of that information. The lack of such proof will, consistent with Abbey , have a direct effect on the weight to be given to the opinion, perhaps to the vanishing point. But it must be recognized that it will only be very rarely that an expert’s opinion is entirely based upon such information, with no independent proof of any of it. Where an expert’s opinion is based in part upon suspect information and in part upon either admitted facts or facts sought to be proved, the matter is purely one of weight.

In this respect, I agree with the statement of Wilson J. at p. 896, as applied to circumstances such as those in the present case: ... as long as there is some admissible evidence to establish the foundation for the expert’s opinion, the trial judge cannot subsequently instruct the jury to completely ignore the testimony. The judge must, of course, warn the jury that the more the expert relies on facts not proved in evidence the less weight the jury may attribute to the opinion. [paras. 80-84] [ 39 ] In this case, the RCMP laboratory technicians provided the data upon which the opinions were based.

They did not testify. Ms. Kearsey acknowledged her opinions (the same considerations apply to Mr. Hildebrandt) were based upon the data provided by those technicians. As mentioned in paragraphs 24 and 25, she explained why she could rely upon the data provided even in the absence of the testimony of those who provided it and the lack of personal supervision of their work. It is worth summarizing what she said. She had personal knowledge of the processes and protocol imposed upon the technicians in the collection and analysis of the samples, having been a technician herself at that laboratory.

She testified about the processes and protocol, and the fact that the technicians would report any anomalies encountered and that none had been reported. There is no question that her evidence provided some “circumstantial guarantee of trustworthiness” of the data provided. [ 40 ] It is convenient to repeat what the trial judge said in his charge to the jury: It is well established that, as a general rule, an expert may base his or her opinion on second-hand information.

But when an opinion based on second-hand information is admitted, and the second-hand information is not otherwise established before the trier of fact, as occurred in this case, the weight of the opinion may recede accordingly. However, where the expert arrives at his or her opinion on the basis of forms of enquiry and practice that are accepted means of decision-making within that expertise, weight may be given to their evidence. [ 41 ] The trial judge’s instruction was fashioned to some extent to give effect to the concerns expressed by defence counsel.

The words “as occurred in this case” were added to make it clear the jury was dealing with a case where the opinions were based, at least to some extent, on hearsay evidence. In effect, the trial judge told them that under such circumstances, the weight of the opinions could “recede accordingly”. That was a clear indication the jury could attribute no weight whatsoever to the DNA opinion evidence. One could argue the appellant may have gotten more than he asked for. [ 42 ] Whether or not the evidence provided by Ms.

Kearsey was sufficient to establish that she had arrived at her opinion on the basis of forms of enquiry and practice that are accepted means of decision-making within her expertise is debatable. Some might argue that her evidence should be looked upon as an expression of confidence in the RCMP forensic science laboratory as a substitute for reliability. On the other hand, defence counsel did not object to that part of the instruction. In fact, he suggested the word “must” should be replaced with the word “may”, which the trial judge accepted.

There is no question there was some admissible evidence to establish the foundation for the expert’s opinion and the trial judge could not instruct the jury to completely ignore the testimony as suggested by the appellant. The approach taken by the trial judge was balanced and fair under the circumstances. [ 43 ] For those reasons, I am of the view the second ground of appeal has no merit. [ 44 ] I would dismiss the appeal against conviction. ____________________________________ ALEXANDRE DESCHÊNES, J.A.

WE CONCUR: ___________________________________ M.E.L. LARLEE, J.A. ___________________________________ B. RICHARD BELL, J.A.