2013 QCCA 952, 2013 QCCA 952

Unofficial English Translation Delisle c. R. 2013 QCCA 952 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002839-129 (200-01-146883-107) DATE: May 29, 2013 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. ANDRÉ VINCENT, J.A. (AD HOC) JACQUES DELISLE APPELANT – accused v.

HER MAJESTY THE QUEEN RESPONDENT – prosecutrix JUDGMENT [ 1 ] Jacques Delisle appeals his conviction for the first degree murder of his wife Nicole Rainville, following a guilty verdict rendered on June 14, 2012 by a jury of the Superior Court, District of Quebec, after a trial presided by the Honourable Mr. Justice Claude C. Gagnon. *** [ 2 ] On November 12, 2009, at 10:30 a.m., Mr. Delisle called emergency services from his residence. He explained to the operator that he had just come home, that his wife Ms. Rainville, aged 71, had taken her own life, and that he had no idea what had happened.

He told the operator that there was a revolver next to his wife. When the operator asked whether there had been warning signs that Ms. Rainville was suicidal, Mr. Delisle responded that it was a long story, that Ms. Rainville had suffered a stroke in 2007 that had left her paralyzed on her right side and that she had recently been hospitalized for four months with a fractured hip. The operator told him that the ambulance attendants were on their way. [ 3 ] A few minutes later, two police officers arrived at the couple's apartment to find Ms. Rainville inanimate on the living room sofa.

She was lying on her back, her head resting on a bloodstained pillow and tilting slightly to the right, toward the back of the sofa. The sofa was also bloodstained. Ms. Rainville's right arm was folded over her chest, her hand was curled up, and her left arm was hanging off the side of the sofa. A .22 calibre Sterling handgun was found on the floor, level with Ms. Rainville's left arm, next to a firearm magazine. Although the magazine was removed, the gun still had one bullet in it. A wound to Ms. Rainville's left temple was visible. [ 4 ] An officer noted that Ms. Rainville no longer had a pulse.

He put pressure on her rib cage to see whether she would react to the pain; she did not. [ 5 ] The police officers, whose colleagues arrived in the minutes that followed, found a bullet shell casing on a coffee table to the right of the sofa, that is, to the right of Ms. Rainville's body when viewed straight on, and a gun case in the apartment's entryway. [ 6 ] Mr. Delisle told the police officers in his home that Ms. Rainville had shot herself in the head and that her right side was paralyzed because of a stroke. He told them that he was a retired judge.

He confided to one of them how difficult it was to take care of someone who is not fully autonomous and that he had not thought that his retirement would be this way. Mr. Delisle also explained that around 9:00 that morning, he and his wife had argued and he had said, [translation] "Will all this never end?" At that point, around 9:30 a.m., he had left the apartment and gone to the Roset grocery store. He said that when he returned, he found her lifeless body and that he removed the magazine himself to secure the gun and thereby avoid any possibility of it firing accidentally. [ 7 ] Mr.

Delisle told the officers that the gun in question was his. He stated that a friend had given it to him as a gift when he used to hunt migratory birds, many years before. He added that he had kept it in his judge's office until retirement, when he brought it home.

Mr. Delisle explained that the gun had been loaded for years and had been in its case, in the apartment entranceway. He had intended to get rid of it and remit it to the police. He also told them that he had not registered it with the Canadian registry for restricted firearms. [ 8 ] The ambulance attendants sent to the scene took Ms. Rainville's vital signs and observed that she had no pulse and was not breathing. Mr. Delisle asked them on a few occasions not to perform CPR on his wife out of respect for her wishes. [ 9 ] At the suggestion of a police officer, Mr.

Delisle telephoned his daughter from a police cruiser parked outside the building. He told her that there had been a tragedy, that her mother had taken her own life, and that police officers were accompanying him to the hospital. [ 10 ] Mr. Delisle was then driven to the hospital where, at 11:42 a.m., the attending physician informed him that his wife was dead. [ 11 ] That same day of November 12, Denis P. Turcotte, a crime scene technician, went to Mr. Delisle's apartment, where police officers acquainted him with the situation. Later, around noon, he went to the hospital to examine Ms. Rainville's body.

He observed the entrance wound caused by the projectile to the left temporal area. The wound was misshapen and black around the edges. There was no visible exit wound. He noted black smoke residue and gunpowder embedded in the skin of Ms. Rainville's left palm. As an experienced marksman and technician, he could not explain the presence of these markings. He shared his observations with two investigators and, around 1:30 p.m., called the pathologist to find out what measures he should take to avoid altering the stains on Ms. Rainville's left hand. [ 12 ] Two investigators met with Mr.

Delisle, along with his two children and their spouses, in a hospital room. One of them informed Mr. Delisle that he could not return to his apartment for the moment because police officers were carrying out tests there. Mr. Delisle answered that nobody could stop him from returning to his home and that he refused to have any tests carried out in his absence. When warned that he could face charges if he obstructed the work of the police officers, Mr. Delisle told an investigator [translation] "I know what you're thinking, but I did not kill her". Both investigators claimed to be very surprised by his demeanour.

Mr. Delisle called the investigator back in the afternoon, however, authorizing her to search his apartment in his presence. [ 13 ] Ms. Rainville's autopsy was performed on November 17, 2009. Dr. André Bourgault, a forensic pathology specialist, noted that the entry wound in the left temporal area of the head measured about 4 x 3 cm overall. The orifice measured about 1 x 1 cm and was starred in appearance. For Dr. Bourgault, the appearance of both the wound and the cranial fracture suggests that the tip of the barrel was either touching or very close to Ms. Rainville's temple when the firearm was discharged. Dr.

Bourgault also noted that the projectile had not exited the head. An x-ray revealed that it was still lodged in the back right corner of Ms. Rainville's head. He concluded that the projectile [translation] "travelled from left to right in the body, from front to back, in a practically horizontal trajectory". His autopsy report included a drawing of the assumed trajectory of the projectile showing a straight, diagonal line between the projectile's point of entry and its final position. [ 14 ] During his examination of the body, Dr. Bourgault noticed black smoke residue in the front part of Ms.

Rainville's left palm, near the fifth finger joint, as Mr. Turcotte had observed before him. This deposit measured about 2.6 cm by 1.4 cm. In the same area, he noted superficial scratches and powder residue. He also observed a second deposit of black smoke residue near the left thumb that was smaller and less noticeable than the first. Intrigued by these markings, Dr. Bourgault consulted Gilbert Gravel, a ballistics expert working in the same laboratory. Mr. Gravel, who was informed that Ms.

Rainville's right hand was paralyzed, handled the gun in an attempt to reproduce a position consistent with suicide that would leave such traces on the left hand. He came to the conclusion that Ms. Rainville’s wound could not have been self-inflicted. [ 15 ] At the end of the investigation into the circumstances of Ms. Rainville's death, the Crown filed charges of first degree murder against Mr. Delisle. *** [ 16 ] A few days before trial, Mr. Delisle objected to having his out-of-court statements to police officers and evidence of his demeanour toward them filed into evidence.

In an interlocutory judgment rendered on May 4, 2012, the judge dismissed his arguments respecting the admissibility of these statements, except for certain statements protected by his right to silence. The judge also decided to admit the evidence showing that Mr. Delisle's demeanour changed from the moment he met with investigators, while reserving the authority to [translation] "give the necessary warnings to ensure that Mr. Delisle not suffer any undue harm".

The judge also said that [translation] "assessing the weight of such evidence falls entirely to the jurors called on to review it". [ 17 ] Several witnesses were heard at trial, which was held before a jury from May 8 to June 14, 2012. Mr. Delisle did not testify, as was his right. [ 18 ] During the trial, the jurors learned, inter alia , that in April of 2007, Ms. Rainville had suffered a stroke that had left her with a weakened right leg and a completely paralyzed right arm. Her spirits were considerably lower following this incident.

Many people in her entourage claimed to have heard her speak of suicide in the years leading up to her death. [ 19 ] Additionally, in July of 2009, Ms. Rainville broke her hip. She underwent an operation and physiotherapy. According to her physiotherapist, toward the end of her hospital stay, Ms. Rainville could get up by herself with some support and get around with the help of a walker. Her caregivers recommended that she go to an adapted living facility but, after some hesitation, Ms. Rainville ultimately decided that she would return home.

On October 31, 2009, she left the hospital to return to her residence. [ 20 ] The defence called upon Mr. Delisle's family members and friends to testify to present evidence of his good character to the jury. Mr. Delisle's son described his father as being [translation] "above reproach", an [translation] "extraordinary husband", and a [translation] "strict, honest, upright, but also very fair" man. Several witnesses stated that he was attentive to his wife and that his daily support of her was exemplary. [ 21 ] Johanne Plamondon, Mr. Delisle's former secretary, testified about her romantic relationship with Mr.

Delisle that had been ongoing for some years. Their affair began in 2007, a few months before Ms. Rainville suffered her stroke. When questioned about it,

two persons close to Mr. Delisle said they did not know about the affair. Between the time Ms. Rainville returned home on October 31, 2009, and her death on November 12, 2009, Mr. Delisle told Ms. Plamondon that he was looking for an adapted living facility for his wife and raised the possibility of them living together. [ 22 ] The day after Ms. Rainville's death, Mr. Delisle met Ms. Plamondon in the morning at their usual meeting place. Mr. Delisle appeared shaken and told her that his wife had taken her own life.

He told her not to worry but that [translation] "he would not contact her for a little while because there was sure to be an investigation". Some time later, Mr. Delisle explained to Ms. Plamondon that the gun that had caused Ms. Rainville's death had been in a piece of furniture that had been in his office at his law firm and that had followed him to the Superior Court and then to the Court of Appeal. He found the gun when he emptied the piece of furniture before leaving for his retirement. [ 23 ] In the spring of 2010, Mr. Delisle once again asked Ms.

Plamondon to live with him, raising the possibility of her moving into his apartment. He told her that he sought a different life and that he wanted to travel, and spoke of going on a cruise that summer. During the weekend of June 13-14, Ms. Plamondon told her husband that she was leaving him to live with Mr. Delisle. This plan never came to fruition, however, as Mr. Delisle was arrested on June 15. [ 24 ] The Crown also called a notary, Mtre Danielle Beausoleil, to testify on the financial consequences of a divorce between Mr. Delisle and Ms. Rainville. The notary explained that Mr.

Delisle would have had to pay $1,402,901 to Ms. Rainville in the event of a divorce because of the division of the family patrimony and their matrimonial regime of community of property limited to acquests. Instead, following Ms. Rainville's death, Mr. Delisle owned all of the couple's assets as the result of a gift in contemplation of death that was made in the marriage contract. [ 25 ] It should be noted that the defence objected to the filing of the notary's expert report and to her testimony, arguing that there was no connection between her observations and the crime charged.

The judge dismissed the defence's objection on the grounds that [translation] "Mtre Beausoleil's testimony could reasonably allow the jurors to infer that Jacques Delisle had an economic and romantic motive to eliminate his wife". [ 26 ] Two ballistics expert reports were prepared at the Crown's request to determine whether it was possible for a self-inflicted gunshot to leave the markings that were found on Ms. Rainville's left hand, considering that her right hand was paralyzed. The two experts, Gilbert Gravel and André Desmarais, presented the results of their ballistics tests at trial.

Both experts excluded the suicide hypothesis, finding that it would have been impossible for Ms. Rainville to use her left hand to pull the trigger while having the palm of this same hand close enough to the mouth of the barrel for gunpowder and sooty residue to be deposited thereon. They inferred from this that another person had to have pulled the trigger. [ 27 ] In his testimony, Mr.

Gravel also explained to the jury that the gun in question had a [translation] "single-action trigger, that is, the hammer must first be cocked by pulling the bolt to the back and releasing it." Thus, before the gun can be fired by pulling the trigger, a movement that normally requires both hands is necessary. [ 28 ] The defence filed a rebuttal report, which was prepared by the ballistics expert Vassili Swistounoff. Mr. Swistounoff expressed the opinion that it was possible that Ms.

Rainville had put an end to her life by holding the gun in her left hand in an unusual or, in the words used at the hearing, [translation] an "unorthodox" manner, that is, upside down so that the mouth of the barrel was near her palm. According to Mr. Swistounoff, the hypothesis that the shot was self-inflicted is the most consistent with the various markings on Ms. Rainville’s body. [ 29 ] Mr. Swistounoff also presented a video to the jury showing a woman arming the gun with her left hand only by pressing the gun on the corner of a piece of furniture. [ 30 ] Mr.

Swistounoff's expert assessment also included an additional statement by the appellant: Mr. Delisle had told him that the shell casing had been on Ms. Rainville's left breast when he found the body and that in one movement he swept it toward the coffee table. [1] [ 31 ] Other expert witnesses were heard at the Crown's request, including a forensic toxicologist, two forensic biologists, and a chemist. For a proper understanding of this appeal, suffice it to say that one of the forensic biologists sought to determine the exact position of Ms.

Rainville's head at the time of the shot based on the blood spatter found on the sofa. In her report, she concluded that blood spatter indicated that Ms. Rainville's face was facing [translation] "the point of contact of the back and the seat" of the sofa when the shot was fired, indicating that Ms. Rainville's body was turned to the right. The defence contested this conclusion, however, seeking to show on cross-examination that the blood spatter on the sofa could have come from Ms.

Rainville's mouth rather than the entrance wound on her temple. [ 32 ] Finally, the Crown showed that the front door of the building in which Mr. Delisle and Ms. Rainville's apartment was located was secured by access code and there was no indication of any forced entry into the building or the couple's apartment. On this subject, the defence acknowledges in its factum that [translation] "... nobody has ever argued that, if the incident is found not to have been a suicide, Ms. Rainville might have been shot by a mysterious passerby or burglar.

In fact, the evidence categorically and clearly excluded this possibility, and the defence has never in any way suggested it". [ 33 ] On June 14, 2012, the jury rendered a verdict of guilty of first degree murder. Mr. Delisle appeals from that judgment. He raises eight grounds of appeal, which may be considered under three headings: errors committed during the judge's charge, the shortcomings of the Crown's closing address, and the unreasonableness of the verdict of first degree murder. *** 1.

Judge's charge [ 34 ] Before analyzing the criticisms made by the appellant in respect of the judge's charge, it bears recalling the principles that apply

to an appellate review of instructions. [35] It is common ground that the assessment of instructions requires a functional approach rather than a literal one.

In other words,the appellate court must take "a functional approach to the instructions that were given, not an idealized approach to those instructionsthat might have been given".[2] An appellate court must approach the charge as a whole, considering the context of the trial, todetermine not whether the instructions were perfect but whether they were proper in that they enabled the jury to judge the factsaccording to the applicable principles of law.[3] The Supreme Court summarizes these principles in R. v.

Daley:[4] [30] When considering the adequacy of a trial judge’s charge on these elements, it is important for appellate courts to keep in mind thefollowing. The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of thejury that matters, and not whether a particular formula was recited by the judge.

The particular words used, or the sequence followed, is amatter within the discretion of the trial judge and will depend on the particular circumstances of the case. [31] In determining the general sense which the words used have likely conveyed to the jury, the appellate tribunal will consider thecharge as a whole. The standard that a trial judge’s instructions are to be held to is not perfection. The accused is entitled to a properlyinstructed jury, not a perfectly instructed jury: see Jacquard, at para. 2.

It is the overall effect of the charge that matters. [36] Furthermore, the fact that counsel for the defence omitted to identify for the trial judge the parts of the instructions that are nowalleged to be problematic must be taken into account.

Without being determinative, an omission of this sort is certainly significant in thatit suggests that the alleged irregularity is not as serious as the defence would now have us believe.[5] *** 1.1 Should the judge have given a MacKenzie-White instruction to the jury concerning the significance of the Crown's ballisticevidence and informed the jury that this evidence must be believed beyond a reasonable doubt in order for Mr.

Delisle to beconvicted? [37] The appellant first raised this argument in a request made to the judge in the absence of the jury, prior to final instructions: [translation] I would submit that this is a case where a MacKenzie type instruction should be given [R v. MacKenzie, (SCC), [1993]1 S.C.R. 212] with respect to the Crown's ballistics evidence. You will recall that, in MacKenzie, which was cited by White [R. v. White, (SCC), [1998] 2 S.C.R. 72], it was stated that, obviously, reasonable doubt must be considered as against all of thefacts, not any one fact in particular.

It states that there is an exception however when one fact is so significant that, without this fact, theCrown's evidence cannot support a reasonable verdict of guilt. I would suggest that here, without the ballistics evidence, that is to saywithout the scientific evidence that suicide was impossible, or the allegedly scientific evidence, what is left could not support areasonable verdict of guilt.

In such circumstances, I think that it would be appropriate to tell the jurors that, if they do not believe the ballistics evidence beyond areasonable doubt, if they do not believe that suicide was scientifically impossible, then they cannot convict. [38] The appellant acknowledges that the judge informed the jury of the importance of believing the prosecution's ballisticsevidence beyond a reasonable doubt and gave an instruction to this end. He argues, however, that the judge subsequently destroyed theeffect of this instruction when he urged the jury to consider all of the evidence to decide whether Mr.

Delisle had pulled the trigger,without giving any special status to the ballistics evidence. As the appellant argues in his factum, [translation] "There was nothing in therest of the evidence that could have helped to prove or disprove the assertions made by the [prosecution's] ballistics experts and thepathologist ...".

The judge allegedly thereby committed an error of law. [39] The Crown responded that the judge had acted correctly in asking the jury to assess all of the evidence to establish the existenceof an unlawful act, while telling it that the Crown expert evidence had to show beyond a reasonable doubt that this was not suicide, butmurder. [40] How, then, should this issue be decided? [41] It is trite law that the judge must tell the jury to weigh the all of the evidence to determine if it raises a reasonable doubt as tothe offence charged.

The judge must not invite the jury to submit individual pieces of evidence to the reasonable doubt test. As theSupreme Court explains in R. v.

Morin, "[i]t is misdirection to instruct the jury to apply the standard of reasonable doubt to individualpieces of evidence".[6] Later, the Court adds that "the function of a standard of proof is not the weighing of individual items of evidencebut the determination of ultimate issues".[7] [42] There are some exceptional situations, however, where it is appropriate for a trial judge to alert the jury that a specific aspect ofthe evidence should not raise any reasonable doubt in their minds.

The purpose of such an instruction is to prevent the risk of a jurymaking a decision by merely choosing between "two facially inconsistent pieces of evidence going to the crucial issue in the case".[8] [43] In this case, counsel for Mr.

Delisle petitioned the trial judge to include a specific instruction in his charge asking the jury toapply the reasonable doubt test to the conflicting opinions offered by the ballistics experts, so that jurors would understand theimportance of being convinced beyond any reasonable doubt that the Crown experts had been right to rule out the suicide hypothesis.The trial judge acceded to the request and gave the instruction in question in the second part of his charge: [translation] Desmarais and Gravel have expressed the opinion that Ms.

Rainville could not have pulled the trigger herself and that another personshot her. The traces left on her hand were the result of a defensive action on her part when the gun was fired. For his part, Swistounoff

contends that the wound, the distortion of the projectile, and the traces on Ms. Rainville's hand clearly indicate that the shot was self- inflicted and asks you to find as he did, that this was a suicide. You cannot solve this disagreement or these disagreements by merely choosing one opinion over the other. Before accepting the opinion of the Crown's experts on this essential element, that is, whether the shot was self-inflicted or inflicted by another person, you should be convinced beyond any reasonable doubt that the prosecution's experts were right.

If you are not certain that they are right, the Crown has not successfully proved beyond any reasonable doubt the essential element of the alleged offence and you should then acquit. When, as in this case, the evidence of an essential element bears mostly, is supported primarily by the testimony of experts, to pronounce a guilty verdict, you must be convinced beyond any reasonable doubt that, on this issue, the prosecution's experts are right. [ 44 ] Since the ballistics experts gave contradictory opinions on the fundamental issue of whether Ms.

Rainville could have shot herself, it was entirely appropriate to include such a warning in the final charge. It was necessary to prevent the jurors from being tempted simply to choose between the diverging opinions of the ballistics experts. Had they done so, the appellant would have been deprived of his right to the benefit of the doubt.

The judge had to make the jury understand that, to arrive at a guilty verdict of murder, it had to believe beyond any reasonable doubt the opinion of the Crown's experts ruling out the possibility of a self-inflicted shot. [ 45 ] This did not mean that the jury’s decision could be based only on the ballistics expert reports and that they should ignore the rest of the evidence. [ 46 ] First, the ballistics expert reports could not be assessed in a vacuum since the expert opinions of both parties rested on facts that were adduced by other witnesses. Counsel for Mr.

Delisle admitted at the hearing on appeal that the testimony of the pathologist, the blood projection expert, the forensic biologist, and Ms. Rainville's physiotherapists, as well as the evidence of Mr. Delisle having moved the shell casing, were all likely to influence the review of the expert assessments. The jury had to weigh the evidence relevant to the ballistics expert assessments to arrive at an adequate decision in their respect. [ 47 ] Furthermore, the ballistics expert assessments prepared by Mr.

Gravel and Desmarais were only one aspect – a crucial one, but not the only one – of the circumstantial evidence submitted by the Crown to establish that Mr. Delisle shot Ms. Rainville. Certainly, the Crown could have decided to rest its case solely on its expert evidence, along with evidence that only Mr. Delisle had opportunity to commit the crime, but it chose to bring further evidence of motive and of Mr. Delisle's conduct following Ms. Rainville's death.

The defence, sometimes in response to the Crown and sometimes on its own initiative, presented exculpatory evidence beyond that adduced through its own ballistics expert. For example, the defence made an effort to raise a reasonable doubt by submitting evidence of Mr. Delisle's good character, his devotion to his wife, and Ms.

Rainville’s talk of suicide. [ 48 ] In these circumstances, having warned the jury of the dangers of merely choosing between the opposing theories of the ballistics experts, the judge then had the duty to draw the jury's attention to the other evidence of both the Crown and the defence that should be considered when deciding whether Mr. Delisle shot his wife or whether she committed suicide.

The judge did so later in his instructions, when he listed all the evidence that should be taken into consideration to [translation] "decide whether Jacques Delisle committed the unlawful action of discharging the Sterling .22 calibre gun at Ms. Rainville's head". [ 49 ] In his account, the judge included Mr. Delisle's demeanour after the fact and the evidence of motive. Although they are not in of themselves indicative of whether or not Ms. Rainville killed herself, this evidence is relevant with respect to the circumstances of her death.

Indeed this was the judge's finding when he allowed the notary, Mtre Beausoleil, to testify on the financial impact of divorce so as to strengthen the evidence of a motive. Consequently, this evidence had to be submitted to the jury so that it could assess its probative value. The same is true of Mr.

Delisle's multiple exculpatory statements, which could have raised a reasonable doubt in the minds of jurors. [ 50 ] The instruction on the need to consider all of the evidence to determine whether the appellant's guilt had been proved beyond any reasonable doubt completed the initial instruction regarding the conflicting experts.

Read together, as they should be, these two instructions are consistent with the case law [9] and commentary [10] cited by the appellant as well as with the instructions recommended by Justice David Watt in his book Watt's Manual of Criminal Jury Instructions : EXPERT OPINION EVIDENCE (CONFLICT IN OPINIONS) [1] There is a disagreement between (among) the expert opinions of (identify witnesses by name) about (describe briefly subject-matter of dispute) . [2] The issue about which these experts (or, NOW [name of witnesses] ) differ is an essential element of the offence(

s) charged. It is something that Crown counsel must prove beyond a reasonable doubt before you may find (NOA [name of accused]) guilty. You must not decide this issue simply by feeling that you must choose one opinion over the other. (Where proof of essential elements does not depend entirely on expert evidence, add:) [3] Examine the evidence of each expert with equal care and attention, in the way that I have just described.

Consider their evidence together with the other evidence that relates to this issue in describing whether Crown counsel has proven this issue beyond a reasonable doubt. [11] [ 51 ] In other words, the judge's initial instruction, given at the defence's request, did not mean that all the other relevant pieces of evidence should be set aside. To decide whether Mr. Delisle discharged a firearm at Ms. Rainville, the jury had to consider all of the evidence, including the testimony of the ballistics experts.

It is therefore erroneous to say that the judge ruined the effect of his initial instruction by asking the jury to consider all of the evidence rather than just the ballistics evidence. In fact, the jury was asked to take into account all of the evidence to decide this fundamental issue according to the reasonable doubt standard, under applicable law. From this perspective, the judge did not in any way diminish the burden incumbent upon the prosecution.

*** 1.2 Did the judge err by not giving the jury a warning regarding evidence of post-offence conduct discussed in both White judgments? [ 52 ] The appellant submits that the judge committed several errors in the manner he discussed his conduct following Ms. Rainville's death. He criticizes the judge for admitting demeanour evidence, for insufficiently warning the jury of the risks related to the demeanour evidence once admitted, and for failing to warn the jury on the danger of inferring from some of Mr.

Delisle's actions and statements that he was trying to conceal a crime. [ 53 ] The Crown responds that there was no danger in this case that the jury would be tempted to convict the accused too quickly or that the post-offence conduct could be attributed to another crime. In its opinion, the judge's instructions relating to Mr. Delisle's demeanour following the death were sufficient under the circumstances. 1.2.1 Admissibility of evidence of Mr. Delisle's change in demeanour [ 54 ] As we noted above, despite an objection by the defence, the judge allowed evidence that Mr.

Delisle's demeanour shifted between the moment he first encountered police officers in his home and his meeting with the investigators at the hospital. [ 55 ] The appellant renewed his objection to the admissibility of this evidence on appeal. In his view, [translation] "its probative value is null and ... the prejudicial effect is therefore disproportionate to its probative value".

He criticizes the judge for deciding that [translation] "this type of evidence is not in itself inadmissible". [ 56 ] The Court does not share the appellant's view. [ 57 ] Contrary to his submissions, the evidence relative to his shift in demeanour was not without probative value. In R. v. White , [12] Binnie J., dissenting but writing for the majority with respect to the applicable law, presented the reasoning that should guide decisions to admit evidence relating to post-offence conduct: [140] The bulk of evidence of post-offence conduct will simply flow into the record as an unremarkable part of the narrative.

Where it is put forward as an element of the prosecution case, it will, of course, be relevant and admissible where it has some tendency, as a matter of logic, common sense and human experience (as the expression goes) to help resolve a live issue in the case. [ 58 ] It is not contrary to logic, common sense, or human experience to suppose that Mr. Delisle's change in demeanour when he heard that an investigation had been undertaken constituted proof of his state of mind.

This evidence was therefore a priori relevant and admissible. [ 59 ] Once this observation was made, the judge had to decide whether the evidence had a disproportionately prejudicial effect in relation to its probative value. He had to assess whether, because of its uncertain reliability, it risked misleading the jury more than helping it to arrive at an informed decision. [13] Accepting that it was possible to minimize the prejudicial effect by giving the appropriate warning, the judge was of the view that its probative value should prevail over its prejudicial effect.

The Court owes a high degree of deference to the balancing exercise undertaken by the judge, [14] which should not be disturbed in the present case. 1.2.2 Instructions on the evidence of Mr. Delisle's conduct following Ms.

Rainville's death. [ 60 ] The appellant faults the judge for having failed to warn the jury correctly about the inherent fragility of the evidence of post- offence conduct. [ 61 ] For the following reasons, the Court disagrees with the appellant on this point. [ 62 ] The proof of an accused's post-offence conduct, including both admissible statements and conduct, constitutes circumstantial evidence, the utility of which is generally left up to the jury. In R v. White , Binnie J. wrote the following in this regard: [15] [137] ...

The general rule is now, as in the past, that it is for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct put in evidence against the accused is related to the commission of the crime before them rather than to something else, and if so, how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role. [ 63 ] In the main, Mr. Delisle’s statements in the period of time following Ms.

Rainville's death could be construed to his advantage since they tended to corroborate the hypothesis of her suicide. Indeed, Mr. Delisle consistently stated that his wife had committed suicide while he had gone out to run errands. There is no doubt that these statements had to be brought to the attention of the jurors so that they could take them into account during deliberations. [ 64 ] In its closing address, the Crown invited the jury to infer from Mr. Delisle's post-offence conduct that he had committed a murder that he was seeking to disguise as a suicide.

In support of this theory, the Crown mentioned some of Mr. Delisle's actions and statements such as removing the gun's magazine, moving the shell casing, his eagerness to present his version of the facts to police officers, his repeated requests not to administer CPR, and his shift in demeanour observed by the investigators. [ 65 ] It is certainly true that judicial experience has shown that there is a risk that a finding of guilt will be reached too quickly on the basis of post-offence conduct presented as suspicious.

Interpretation of such evidence indeed has many pitfalls. For example, the jurors might disproportionately rely on the subjective perceptions of witnesses who did not know the accused, fail to take into account the traumatizing nature of the situation, or ignore explanations inconsistent with guilt. The trial judge must therefore warn the jurors of the dangers related to such evidence. Here, the judge warned the jury twice during his instructions to be prudent in its consideration of Mr. Delisle's conduct after he discovered his wife's body.

[ 66 ] The judge gave the first warning after recapitulating the evidence relating to Mr. Delisle's conduct following the death. He then made the following remarks to the jury: [translation] Allow me, however, to inform you of a rule of prudence regarding how a person's demeanour may be perceived and described by someone else who does not know them. It must be kept in mind that there is not necessarily one normal way to react to a stressful or traumatizing situation and that our perception of other people's emotions can be misleading.

Prudence dictates that we not give too much significance to a person's demeanour in these circumstances, but it is nevertheless an element you may consider. [ 67 ] At that same time, the judge pointed out to the jury that there may be explanations for Mr. Delisle's conduct other than a blameworthy state of mind: [translation] "if you believe that Jacques Delisle committed certain acts or spoke these words for another reason, you cannot consider this evidence in order to come to your decision".

Finally, the judge once again reminded the jury of the rule of prudence when he presented the evidence that it should consider to determine whether Mr. Delisle had shot a firearm at Ms. Rainville. [ 68 ] The appellant submits that the judge should have warned the jury specifically that his conduct might have sought to dissimulate his having assisted the suicide of a woman who no longer wanted to live by leaving the gun close at hand. A warning was necessary, he argues, because assisted suicide is a different offence than murder. We disagree.

The evidence did not reveal that the appellant assisted suicide in any way whatsoever, as his counsel candidly stated to the jury during his closing address: [translation] I will go further and mention a hypothesis that is not at all at issue, but I will mention it to show you just how little negligence is relevant to this case. I assert that, even if the evidence had been that Mr.

Delisle had left the gun there for her to use, to assist her in committing suicide, evidence of which has not been adduced, this is just a theory, there is no evidence of what I am saying, but I want you to understand to what degree negligence in leaving this loaded gun within Ms.

Rainville's reach is not enough to find him guilty of murder because, even if he had gone to get the gun, loaded it and left it there on purpose for her to use, and even if he had asked her to do it, evidence of which has not been adduced, it would not be enough to find him guilty of murder, in fact, in that case, you would have to acquit him. [ 69 ] No particular instruction was therefore required in this respect. [ 70 ] The jury was well aware of the other explanations that Mr. Delisle had himself submitted to police officers to justify his conduct. Take the example of removing the magazine, which Mr.

Delisle explained by his intention of securing the gun. It was up to the jury to determine the value of the various explanations given. [16] [ 71 ] The instructions and warnings were appropriate. They sufficiently cautioned the jury not to assign too much importance to Mr. Delisle's conduct following the death of his wife by stating that there is no one normal reaction to stressful situations. In these circumstances, the instructions also made the jury adequately aware that there might be reasons other than a blameworthy state of mind to explain the conduct.

In short, the instructions averted the danger that lies in the jury losing sight of the context and drawing negative inferences too quickly from Mr. Delisle’s allegedly unusual conduct. 1.2.3 Instructions on the exculpatory out-of-court statements made by Mr. Delisle [ 72 ] The appellant also faults the judge for his treatment of the appellant's exculpatory extrajudicial statements. In his view, the judge erred by repeating, without any additional remarks, the Crown's assertions that his statements tended to show that he had attempted to disguise a murder as a suicide.

For the appellant, characterizing these exculpatory statements as evidence tending to show guilt, as the judge and the Crown did, is tantamount to adopting circular reasoning – [ translation ] "tautological" to use his word – because these statements only become incriminating when guilt has already been established.

They cannot serve to prove guilt. [ 73 ] Once again, the appellant has not convinced us of the merits of his argument. [ 74 ] In general, when the Crown alleges that an accused knowingly concocted his or her exculpatory statements to hide guilt, the judge must submit these arguments to the jury only if there is independent evidence of fabrication.

The jury must not be told they may infer the guilt of an accused from the mere fact that it does not believe his or her exculpatory out-of-court statements. [17] [ 75 ] The context of an accused's extrajudicial statements, however, may prove his willingness to put the authorities on a false trail; they fulfil the requirement of independent evidence of fabrication. As the Court of Appeal for Ontario wrote in R. v.

O'Connor , "[t]he circumstances in which a false statement is made may show an intent to mislead the police or others or an intent to deflect suspicion and may be evidence of a conscious mind that he or she has committed an offence". [18] If that is the case, it is up to the jury to consider the circumstances in which the statements were made as independent proof that the accused deliberately sought to mislead the authorities. [19] [ 76 ] In the present case, it was possible, as the Crown suggested, for the jury to find that all of the evidence – including Mr.

Delisle moving the shell casing and manipulating the gun and his eagerness to exculpate himself with police officers – tended to suggest that he had fabricated a story out of whole cloth in order to deflect suspicion from himself. The judge then had to draw the jury's attention to the circumstances of the statements so that it could make an informed decision as to whether they were intended to hide the commission of a crime and thus offer proof of Mr.

Delisle's guilt. [20] That is exactly what the judge did in his instructions: [translation] The actions undertaken or words spoken of a person after an offence was allegedly committed can help you decide whether this person is guilty or not of that offence.

Here, the actions and words in question are mainly the following: removing the gun magazine from the gun so that he would not shoothimself accidentally, while leaving a round in the chamber; sweeping away the shell casing from Ms. Rainville's chest with his hand;calling 911; the remarks reported by the police officers, the ambulance attendants; the words... there are also the remarks made to Ms.Plamondon during the meeting on November 13, 2009; and his demeanour when he performed these actions or said these words. Youmust first decide whether Jacques Delisle performed these actions or said these words.

If you do not believe that Jacques Delisleperformed these actions or said these words, you cannot take them into consideration to decide this case. You must first decide that hedid indeed do and say what he is alleged to have done and said. If you find that he did not say these things or did not do those things,well, you do not take them into account. If, on the contrary, you believe that Jacques Delisle did these things or said these words, you must then ask yourselves whether he didand said these things because he committed a murder and was trying to disguise it as a suicide, as asserted by the prosecution.

If youanswer yes to this question, you must consider this evidence and all the other elements of evidence in arriving at your decision. If youbelieve that Jacques Delisle did these things or said these words for another reason, you cannot consider this evidence to make adecision. The conduct or demeanour of Mr. Delisle that occurred after the commission of the unlawful act can be considered during yourdeliberations to decide whether he committed the offence and what his intention was when he committed the said offence.

Allow me, however, to inform you of a rule of prudence regarding how a person's demeanour may be perceived and described bysomeone else who does not know them. It must be kept in mind that there is not necessarily one normal way to react to a stressful ortraumatizing situation and that our perception of other people's emotions can be misleading.

Prudence dictates that we not give too muchsignificance to a person's demeanour in these circumstances, but it is nevertheless an element you may take into account. [77] The judge therefore presented the elements of evidence to the jury that related to the circumstances in which the statementswere made so that the jury could decide whether these statements were exculpatory or misleading.

The risk of tautological reasoning towhich the appellant refers was avoided by the existence of independent evidence of the context in which the statements were made.Consequently, the jury did not have to decide whether the appellant had lied based only on the evidence brought by the prosecution toestablish guilt. The judge's instructions, therefore, are different from those that were criticized in R. v.

Hall,[21] where the trial judge hadlet the Crown argue that the accused's exculpatory extrajudicial statements were evidence tending to show guilt since they had beenfabricated, without referring in his instructions to the independent elements of evidence that were likely to lead to a finding offabrication.[22] [78] We also note that counsel for Mr. Delisle, to whom the judge gave the opportunity to make submissions after addressing thepost-offence conduct, did not object to this.

This silence suggests that the appellant did not consider these instructions to be problematicat the time. [79] The judge's instructions adequately informed the jury of the use that could be made of the post-offence conduct evidence,cautioning them of the dangers inherent in this type of evidence while also indicating the analytical framework to adopt. There are nogrounds for intervention on this matter. *** 1.3 Did the judge err by not summarizing the evidence adequately for the jury? [80] The appellant faults the judge for having failed in his duty to simplify the jury's task in his

summary of the evidence. Moreprecisely, the appellant contends that the judge should have drawn the jury's attention to aspects of the evidence that support thedefence's theory instead of merely repeating all of the evidence. For example, the judge should have clarified the scientific evidence forthe jury by pointing out the flaws in the expert assessments filed by the Crown. [81] We are of the opinion that the judge did not err in the manner he presented his

summary of the evidence to the jury. [82] After the defence's closing address, the judge notified counsel that, after the prosecution’s closing address, he might ask the jurywhether it would like him to summarize the testimony. The defence did not object to this possibility. After the prosecution's closingaddress, the judge told the jurors that in light of the closing arguments, he had decided to give them a

summary of the testimony of eachwitness. He did so in his final charge.

After outlining the applicable law, he reviewed the testimony of each of the witnesses heard at trialand read the summaries of the parties' positions that had been prepared by their respective counsel. [83] The Supreme Court has written that, in a trial before jury, "the presiding judge must, except in rare cases where it would beneedless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciatethe value and effect of that evidence, and how the law is to be applied to the facts as they find them".[23] [84] In this case, it is clear that the judge properly reviewed the evidence when he presented the testimony of different witnesses,thereby meeting his duty to refresh the jury's memory.

Contrary to the appellant's arguments, the judge also took the time to connect thedifferent parts of the evidence, in particular that presented by the defence, to the main issue in dispute, as illustrated by the excerpt fromhis instructions where he lists the evidence that must be considered to determine whether the appellant shot Ms. Rainville. He provided alengthy

summary of the testimony of Mr. Swistounoff, which was the cornerstone of the defence theory, and read the jury the documentdrafted by counsel for the defence to present its position. [85] In essence, the appellant faults the judge mainly for not having detailed and compared the various ballistics expert assessmentsin his instructions, highlighting what the appellant views as the superiority of the defence’s expert assessment over that of theprosecution. The Supreme Court has discouraged judges from undertaking such an

interpretation of the expert evidence for fear of theirusurping the role of the jury: [62] One problem with drawing inferences from expert testimony is that it can leave the jury with the impression that they arerequired to accept this

interpretation. A review of expert testimony should not be presented to the jury in a way that removes thedetermination of facts from their consideration: see Cooper v. The Queen, (SCC), [1980] 1 S.C.R. 1149, at p. 1171.

Thus, it is not advisable for the trial judge to wade into the waters of interpreting expert testimony. If he chooses to do so, he mustexercise great care to impress upon the jury that his

interpretation is only an opinion which they may either accept or reject.[24] [86] The judge's instructions were sufficient for the jury to be well aware of the theory of the defence that the shot was self-inflicted.If this theory had raised a reasonable doubt, the appellant would have benefited from it. It was up to the jury to assess the evidence in thisregard.

In light of the high degree of deference owed to the trial judge in respect of his presentation of the facts[25] and the absence ofcontestation by the defence at trial, this ground of appeal must fail. *** 1.4 Did the judge err by not cautioning the jury that motive in itself was not a solid basis to convict? [87] The appellant argues that the judge erred by failing to mention to the jury that evidence of motive can only complementevidence tending to establish guilt and that it is not sufficient, in itself, to ground a conviction.

Such an instruction was all the morenecessary under the circumstances, he states, since evidence of a motive was in his view extremely tenuous. [88] Conversely, the Crown argues that an instruction to this end was unnecessary since evidence of a motive was not essential to theprosecution's theory of the case. If the jury accepted the evidence of the prosecution's experts showing that Ms. Rainville could not haveshot herself, Mr.

Delisle was the only suspect and had to be convicted, since he was the only one who had an opportunity to kill Ms.Rainville. [89] The Court is of the opinion that the judge did not err in choosing not to offer a special caution as to the motive. [90] Evidence of a motive is part of the circumstantial evidence that can be presented to help a jury determine whether a criminal actwas committed.[26] The way it is addressed in instructions is usually left up to the trial judge, except in certain circumstances, asDickson J. (as he then was), explained in Lewis v.

The Queen:[27] The necessity of charging a jury on motive may be looked upon as a continuum, at one end of which are cases where the evidence as toidentity of the murderer is purely circumstantial and proof of motive on the part of the Crown so essential that reference must be made tomotive in charging the jury. ... At the other end of the continuum, and requiring a charge on motive, is the case where there is provedabsence of motive and this may become of great significance as a matter in favour of the accused.

Between these two end points in thecontinuum there are cases where the necessity to charge on motive depends upon the course of the trial and the nature and probativevalue of the evidence adduced. In these cases, a substantial discretion must be left to the trial judge.

In Imrich [(1974), (ON CA), 6 O.R. (2d) 496, aff'd by (SCC), [1978] 1 S.C.R. 622], for example, the evidence of exclusive opportunitywas such that motive receded into the background. [91] In this case, the judge made the following remarks on the evidence of motive adduced by the prosecution, outlining theelements that were both favourable and unfavourable to the accused: [translation] Motive. Motive is the reason that can move someone to act. Proof of a motive is evidence that you may take into account with all the other piecesof evidence to decide whether or not Jacques Delisle is guilty.

Motive, however, is not an essential element of the offence. The Crowncontends here that the motive that encouraged Jacques Delisle to murder his wife is at once romantic and financial, that is, that he wantedto live with Johanne Plamondon while keeping property that he alone had administered since the beginning of the marriage. It is up toyou to decide whether Jacques Delisle had a motive – that motive – then, to decide the weight that you want to give such evidence todecide this case.

To do so, you can consider the testimony of Johanne Plamondon, the notary Danielle Beausoleil, and with respect to thesearch to find an adapted residence and the wishes of Marie-Nicole Rainville and Jacques Delisle on this issue, you can consider those ofPauline Rainville, the occupational therapist Marie-Josée Tremblay, and the physiotherapist Danielle Marceau.

Regarding JacquesDelisle's conduct with respect to Marie-Nicole Rainville and their opinion of what kind of person the accused is, you may also considerthe testimony of Jean-Louis Baudouin, Jean Delisle, Marcel Carbonneau, Ginette Bruneau-Brossard, Anne-Sophie Morency, MarjolaineCastonguay. [92] The judge also invited the jury to take into account the evidence regarding motive to decide whether someone other than Ms.Rainville had pulled the trigger, and whether that other person was Mr.

Delisle. [93] The appellant maintains that evidence of a motive was so crucial to the prosecution's case that the judge should havespecifically told the jury that motive, without additional evidence, was insufficient to ground guilt. He raises a judgment of the ManitobaCourt of Appeal, R. v.

Khan, where the trial judge was faulted for failing to caution the jury that "without proof of other probative andsignificant facts establishing the commission of a crime, motive by itself is not a proper basis for a conviction".[28] [94] The present case can easily be distinguished from that cited by the appellant, where the motive formed the bulk of theprosecution's case. In R. v. Khan, the jury had to determine whether a woman had died as the result of murder, suicide, or mere accident,based on very tenuous circumstantial evidence.

It did not have any evidence with probative value comparable to the soot stain on Ms.Rainville's hand, which is fundamental to the prosecution's case and relegates proof of motive to a lesser role. [95] In this case, it appears clearly from the entire record that evidence of motive was not essential to convict and only supported thephysical evidence. When he enumerated the evidence that could be taken into consideration to determine whether Ms.

Rainville's deathwas a suicide or a murder, the judge asked the jury to consider [translation] "first" the expert evidence and the evidence relating to Mr.Delisle's post-offence conduct, before saying that it could [translation] "also take into account" Mr. Delisle's motive. Therefore, in thiscase, unlike in R. v. Khan, there were other "probative and significant facts which, together with the evidence of motive, could beaccepted by a jury acting reasonably as proof of the commission of a crime".[29] There was therefore no risk that the jury would convict

Mr. Delisle based solely on motive in the circumstances, and it would have been superfluous to caution the jury in this respect.

The appellant, who did not raise this argument in his remarks on the instructions at trial, has not shown any error in the manner in which the judge addressed the evidence of motive. *** 1.5 Did the judge err by failing to warn the jury of the dangers of speculating on various pieces of evidence and by failing to explain the difference between speculation and drawing logical inferences from the evidence? [ 96 ] Being of the view that the Crown invited the jury to speculate, the appellant faults the judge for failing to explain the difference between speculation and legitimate inference when assessing facts. [ 97 ] The Crown counters that the judge's instructions, when considered in their entirety, adequately cautioned the jury against the dangers of speculation. [ 98 ] We share the Crown's view that the judge's instructions communicated clearly to members of the jury that they should rely only on the evidence and refrain from speculation. [ 99 ] Among the statements in made to the jurors, the judge said, [translation] "you must base yourself on all the evidence adduced at trial and rely solely on this evidence", as well as [translation] "remember that you have sworn or solemnly affirmed to render a fair decision based solely on the evidence", and [translation] "as I told you earlier, to decide the facts of the case, you must examine the evidence that has been presented in the courtroom, the evidence, I will tell you again, is made up of testimony, exhibits filed at trial and admissions".

The judge repeated these warnings when addressing the manner in which the jury should approach the closing addresses of counsel, adding that [translation] "an advocate's enthusiasm may draw you beyond what was proved and encourage you to speculate based on facts that were not proved". [ 100 ] Contrary to the judge's instructions in R. v.

Khan , [30] cited once again by the appellant in support of this ground of appeal, the judge offered two examples of inappropriate speculation drawn from the evidence when he gave a warning in respect of an excerpt of the Crown's closing address: [translation] And to assert the unlikely... the unlikelihood of the suicide theory, the prosecutor asserts that Ms. Rainville could not know and did not know that the gun in her home was loaded. There is nothing in the evidence to suggest this. In fact, the evidence is silent on the subject of what Ms.

Rainville knew or did not know, and if the evidence is silent, it is because none of the witnesses testified as to her degree of knowledge; there is no evidence to show what she knew or did not know. The same can be said of the fact that she thought that her husband had left the home for a few minutes to go to Roset, we do not know what she was thinking then either, the evidence does not show this.

It is, at best, the result of speculation, which is not supported by the evidence and on which you cannot base your verdict. [ 101 ] In evaluating the judge's instructions pursuant to the functional approach adopted by the Supreme Court, we find that they enabled the jury to understand the difference between speculation and inference, while informing it of this risk in its sovereign assessment of the facts. The judge correctly instructed the jurors in this respect. *** 1.6 Did the judge err in his manner of addressing the fact that Mr.

Gravel's team failed to inform the Crown and the defence that they had discovered a position consistent with the suicide theory? [ 102 ] The analysis of this ground of appeal requires some context. [ 103 ] During his examination-in-chief, Mr. Gravel, one of the prosecution's ballistics experts, acknowledged that one of his colleagues had discovered a position for a self-inflicted gunshot that was consistent with the presence of soot on Ms. Rainville's hand. Mr. Gravel rejected it, however, since in this position, Ms.

Rainville's palm would have blocked the ejection of the shell casing so that it could not have landed on the coffee table. Furthermore, Ms. Rainville's thumb would have blocked the bolt, thereby preventing the gun from cycling, which could not have happened on the day of the incident since there was a bullet in the gun's chamber. Consequently, Mr. Gravel decided that there was no reason to mention this position in his reports. [ 104 ] On cross-examination, however, Mr.

Gravel admitted that this position, slightly modified, could be reproduced without the thumb blocking the bolt, although he still maintained that it was not consistent with the presence of a casing on the coffee table. He also explained that he had informed the Crown prosecutor of this position at the start of the week's hearings. The defence was made aware of this information only prior to Mr. Gravel's examination. [ 105 ] In a discussion concerning the final address to the jury, the judge told counsel that he would suggest that the jurors decide whether Mr.

Gravel had withheld information and determine the validity of Mr. Gravel's explanations when assessing the expert’s credibility. Counsel for the appellant agreed with this manner of proceeding. The judge therefore gave the following instruction: [translation] On this subject, I will now tell you that it is true that the Crown – that is, the Crown in the larger sense that includes prosecutors, police officers, State's experts – must disclose all the relevant evidence to the accused prior to the trial, the Crown must disclose to the defence any relevant evidence, be it incriminating or exculpatory.

This is a constitutional obligation. You have been told that Mr. Gravel did not reveal to Mtre Magnan or the investigators information relating to tests that manipulated the gun into a position that I would call unusual, unorthodox, that allowed the gun to shoot differently from the theory he favours. It appears

that he kept this information to himself for the better part of a year, despite Mtre Magnan's requests that he be transparent and tell him everything. Because of the conduct of the Crown's expert witness, Mtre Magnan, through no fault of his own, it should be said, could not disclose the relevant information to the defence completely and in a timely fashion since the expert did not tell him, only told him one or two days before testifying. You can take into account Mr.

Gravel's silence on this aspect to assess his credibility; it is up to you to decide the significance of this fact and its effect on the credibility of the witness. To do so, you may also assess the explanations he gave for acting as he did. Similarly, you may take into account the scientific method used by the experts, their manner of running tests, consigning the results of their experiments and compiling the data, these are means of assessing the credibility of expert witnesses, but they are not the only ones. In the evidence adduced before you, there are contradictions between some of the experts.

Let me give you some examples. [ 106 ] The appellant contends that the judge made a mistake by leaving it up to the jury to determine the sufficiency of the explanations given by Mr. Gravel for his failure to disclose the discovery of a position consistent with the ballistics markings. In the appellant's view, it was up to the judge to assess these explanations and he should have said to the jury that they were without merit. Consequently, the judge should have explained to the jury that the principle of disclosure of evidence to the defence was seriously breached, that Mr.

Gravel was entirely responsible for this, and that his explanations were without merit, thereby necessarily affecting his credibility. [ 107 ] Did the judge err on this matter? [ 108 ] We are of the opinion that he did not. [ 109 ] The judge acknowledged the failure to abide by the constitutional obligation of disclosure and Mr. Gravel's sole responsibility for this, Mtre Magnan having asked him, from the very beginning, to be completely transparent. Having done this, the judge also told the jury that this failure by Mr.

Gravel to disclose his discovery could affect his credibility, and he invited the jury to assess the explanations that were given to decide whether this was the case. [ 110 ] Mr. Gravel testified that he decided not to speak of the unorthodox position that had been discovered because, among other reasons, it was not consistent with the place where the shell casing was found. During his tests, Mr. Gravel did not and could not know that the casing had been moved by Mr. Delisle, as Mr. Delisle himself claimed, and he only found out when he read Mr.

Swistounoff's expert assessment, disclosed to the prosecution shortly before it closed its case. [ 111 ] The appellant asserts that Mr. Gravel's explanation of his silence regarding the unorthodox position he discovered is implausible because the location of the casing on the table to the right of the sofa is not consistent with the position that Mr. Gravel takes in his report. According to the appellant, in any event, the casing was ejected backwards and therefore inevitably some distance from the table. On the basis of this understanding that the appellant argues that the judge should have rejected Mr.

Gravel's explanations and instructed the jury accordingly. [ 112 ] We do not share this point of view. [ 113 ] Contrary to what the appellant claims, the evidence on this aspect was not conclusive and it was necessary that it be left to the jury's appreciation. It was adduced that, with a shot discharged by a third party with the gun at a slight tilt, the casing would eject to the right, but it is very difficult to assess where it would land once ejected since it might bounce and stray from where it fell initially.

Thus, contrary to the appellant's argument, the judge had no reason to rule out the possibility that the casing ended up on the table in the position favoured by Mr. Gravel. The judge could not reject Mr. Gravel's explanation – that he had excluded the unorthodox grip because it was inconsistent with the location of the casing on the table – as misleading or clearly and necessarily unfounded and accept only his own theory. Contrary to the appellant's assertion, these explanations were not without merit. [ 114 ] The judge therefore rightly decided to leave the task of determining the sufficiency of Mr.

Gravel's explanations and his credibility up to the jury. [ 115 ] Mr. Gravel's failure to refer to his discovery in his report had the potential to undermine his credibility as an expert, thereby casting doubt on the completeness of his report and his professional competence. The judge was right to hint at this in his instructions.

The appellant has not shown any error by the judge in this respect, especially since his counsel expressed his satisfaction regarding this manner of proceeding at trial. [ 116 ] We would simply add, in closing, that the information in question was in fact disclosed to the defence, albeit belatedly, and that the appellant has not shown how the timing of the disclosure violated his right to make full answer and defence or compromised the fairness of the trial. *** [ 117 ] To conclude on the judge's charge considered as a whole, the jury was properly instructed on its task of judging the facts in accordance with the evidence and the applicable principles of law. *** 2.

The Crown's closing arguments [ 118 ] The appellant has enumerated a series of criticisms bearing on the Crown's closing address. He faults the Crown for misrepresenting the evidence, inviting the jury to speculate, giving a personal opinion on the credibility of the witnesses, and, in his view, ridiculing the appellant's position. Allegedly, the judge did not adequately remedy these irregularities, thereby compromising the appellant's right to a fair trial.

[ 119 ] The Crown prosecutor responds that he was entitled to argue his case and his role was not limited to summarizing the evidence, as the appellant seems to think. He answers the main criticisms against him, pointing out that he repeatedly reminded the jurors that they should not rely on his opinion and that the task of assessing the facts was theirs to perform.

The prosecution ends by noting that the appellant brought these alleged irregularities to the judge's attention at trial and that the judge corrected some of them but knowingly set aside others, a decision that warrants deference. [ 120 ] Rand J. describes the role of the Crown prosecutor in an oft-quoted excerpt from Boucher v. R. : [31] It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.

Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. [ 121 ] This role limits the Crown's freedom when addressing the jury during its closing arguments.

The Supreme Court set out these limits as follows in Rose : [32] : [107] ... In presenting closing submissions to the jury, Crown counsel must be accurate and dispassionate. Counsel should not advert to any unproven facts and cannot put before the jury as facts to be considered for conviction assertions in relation to which there is no evidence or which come from counsel's personal observations or experiences. ...

Crown counsel is duty bound during its jury address to remain true to the evidence, and must limit his or her means of persuasion to facts found in the evidence presented to the jury: ... [ 122 ] This does not mean, however, that the Crown may not make every effort to convince the jury of its position, as the Court of Appeal for Ontario pointed out in R. v. Daly : [33] A closing address is an exercise in advocacy. It is a culmination of a hard fought adversarial proceeding. Crown counsel, like any other advocate, is entitled to advance his or her position forcefully and effectively.

Juries expect that both counsel will present their positions in that manner and no doubt expect and accept a degree of rhetorical passion in that presentation. [ 123 ] To decide whether this Court should intervene because of an inappropriate submissions by the Crown, both the address and the judge's charge must be considered with the end goal of determining "whether the objectionable comments are seen to have deprived the accused of his right to a fair hearing on the evidence presented at trial". [34] [ 124 ] Is there cause to intervene in the present case? [ 125 ] The appellant submits a long list of criticisms with respect to the Crown's closing address.

At the outset, it must be acknowledged that the Crown's closing address contained irregularities, a point that was conceded by counsel for the respondent at the hearing of the appeal. [ 126 ] The appellant argues that the Crown's closing address rested on the erroneous theory that the defence had the burden of proving that suicide was a possibility.

It is true, as the Crown prosecutor acknowledged before us, that he committed an error at the start by presenting the [translation] "real issue" to the jury in these words: [translation] "is it suicide or murder?" [35] [ 127 ] Obviously, the jury did not have to decide between alternatives whether Ms. Rainville had committed suicide or had been murdered, but whether the Crown had demonstrated beyond a reasonable doubt that Mr. Delisle had killed Ms. Rainville.

The Crown prosecutor corrected himself immediately however: [translation] "and by saying this, I am aware of the burden that is mine and I am also aware that the defence has only to raise a reasonable doubt in your minds". He repeated this at the end of his address: [translation] "I know the burden that is mine or that it is ours, the Crown's, to prove beyond any reasonable doubt and by this, I mean a reasonable doubt that must occupy your minds". [ 128 ] In his instructions, the judge also reminded the jury that the burden of demonstrating Mr.

Delisle's guilt rested entirely on the Crown, as the following excerpts show: [translation] The accused does not have to present evidence or prove anything whatsoever in this case, nor does he have to prove that he is innocent of the charge brought against him. From start to finish, it is the Crown that must prove the accused's guilt beyond a reasonable doubt. This burden never shifts to the accused. You must find Jacques Delisle not guilty of the offence unless the Crown has convinced you of his guilt beyond any reasonable doubt. ...

It is not enough for you to believe that Jacques Delisle is probably or in all likelihood guilty. If that were the case, you would have to acquit him because the Crown would have failed to convince you of his guilt beyond any reasonable doubt. ... In this case, proof of the essential elements is basically circumstantial or indirect.

When proof of an essential element... essential elements of the indictment are circumstantial or indirect, you must apply a rule of law that states that for the accused to be found guilty, you must be convinced beyond any reasonable doubt that the only rational or reasonable outcome that can be inferred from all the evidence is that of guilt. Let me repeat this, to find Jacques Delisle guilty, you must be convinced beyond any reasonable doubt that guilt is the only rational or reasonable outcome that may be inferred from the evidence as a whole.

... You cannot find Jacques Delisle guilty of first degree murder unless the Crown has proved beyond any reasonable doubt that Jacques Delisle is the person who committed the offence on the date, November 12, 2009, and at the place, Quebec City, indicated in the indictment. ... Similarly, if you are not certain whether Ms.

Rainville's death was the result of suicide or the fact that Jacques Delisle shot her with the .22 calibre gun, you must find Jacques Delisle not guilty. [ 129 ] What was important in this case, based entirely on circumstantial evidence, was that the jurors understood that the Crown had the burden of proving Mr. Delisle's guilt beyond any reasonable doubt, that they could not simply choose between the theory of murder and that of suicide, and that to convict Mr. Delisle there had to be no doubt in their minds that the only rational or reasonable outcome was murder.

Despite the error committed by the Crown at the beginning of its closing address, we find that the jury clearly understood this message once the judge had delivered his charge. The judge adequately pointed out to the jury that the theories of murder and suicide were not on an equal footing. It was enough that the theory of suicide – the only alternative to the theory of murder at the end of the trial – raise a reasonable doubt and for Mr. Delisle to be acquitted.

The judge's instructions in this respect adequately corrected the Crown's error. [ 130 ] Other disputable aspects of the Crown's closing address, criticized on appeal, were corrected by instructions by the judge during his final charge. For example, there was the Crown's encouragement to convict Mr. Delisle for first degree murder based only on the placement of the entry-wound and the post-offence conduct.

Unhappy with the Crown's assertions, the judge reacted appropriately by explaining to the jury that the inferences suggested were just as consistent with murder in the second degree as they were with murder in the first degree and cautioned the jury to be prudent. [ 131 ] The judge also commented critically on the Crown method of selecting some of the videos produced by the defence's ballistics expert to prove the difficulty of shooting in the position endorsed by that expert.

The judge recommended that the jury watch all of this expert's videos to form a complete idea. [ 132 ] The appellant's other criticisms of the Crown's closing address were brought to the attention of the trial judge. He decided to respond to some of them in his final charge and to ignore others. We further note that during his final charge the judge also corrected some of the Crown's questionable remarks.

The judge was best placed to decide whether it was necessary to redress the situation, and his decision in this respect warrants the Court's deference. [36] The appellant has not convinced us that the judge was wrong to reject the other irregularities alleged by the defence. The fact of the matter is that many of the appellant's criticisms are clearly without merit. [ 133 ] Some of the appellant's complaints stem from a misreading of the Crown's comments. For example, the appellant maintains that the Crown [translation] "dared to systematically dispute the fact that Ms.

Rainville had often displayed suicidal tendencies". Upon reading the Crown's oral argument, however, it is apparent that the Crown did not deny the comments regarding suicide, conceding that [translation] "it is probably true that Ms. Rainville made this type of comment ... ". The Crown instead cast doubt on the inference that could be drawn from the fact that Ms. Rainville was suicidal by attempting to demonstrate that these remarks were only occasional, that they were spoken well before Ms.

Rainville's death, and that some of the remarks could be interpreted differently from the meaning urged by the appellant. [ 134 ] Another one of the appellant's line of attack is to target the words used by the Crown to present the evidence, seeing therein some objectionable rhetorical flourishes. He faults the Crown for having declared that his affair with his assistant, Ms. Plamondon, started [translation] "well before" Ms. Rainville's stroke, whereas Ms. Plamondon's testimony revealed that their romantic relationship started only a [translation] "few months" before the stroke.

He also faults the Crown for writing in the

summary of its theory of the case that [translation] "Mr. Delisle had a brilliant career that enabled him to live life to the fullest". We have nothing to say about these rhetorical methods, especially since counsel for the defence also used similar techniques in his oral argument, presenting, for example, the relationship between Ms. Plamondon and Mr.

Delisle as a [translation] "late-in-life infatuation" consisting mainly of simple [translation] "innocent kissing". [ 135 ] The appellant also points out that on several occasions the Crown gave its opinion on the credibility of the witnesses, thereby usurping the role of the jury. [37] For example, according to the appellant, the Crown should not have stated with respect to Jean Delisle's testimony that [translation] "if we take

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