R. v. Kociuk (R.J.), 2011 MBCA 85

Citation: R. v. Kociuk (R.J.), 2011 MBCA 85 Date: 20111021 Docket: AR 10-30-07346 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Richard J. Chartier Madam Justice Holly C. Beard B E T W E E N : HER MAJESTY THE QUEEN ) L. J. W. Tailleur ) for the Appellant Respondent ) ) E. A. Thomson - and - ) for the Respondent ) ROBERT JOSEPH KOCIUK ) Appeal heard: ) March 10, 2011 (Accused) Appellant ) ) Judgment delivered: ) October 21, 2011 TOP CHARTIER J.A. INTRODUCTION AND ISSUES 1 This was a “cold case” murder that was revived through DNA technology.

In 1984, a jogger discovered a body in a bush area. The deceased was Beverly Anne Dyke (the victim). The autopsy report revealed that the cause of death was multiple stab wounds, with evidence of recent sexual intercourse. Back then, DNA profiling was only experimental. However, the diagnostic examination of blood serum (serology) was available. 2 When technology allowed for DNA profiling, the material used in 1984 to swab parts of the victim’s body for the serology analysis was utilized to extract DNA. The DNA analysis matched the DNA of the accused.

The accused was arrested in 2005 and charged under s. 231(5) of the Criminal Code (the Code ), which deems a murder, which occurs while committing sexual assault to be first degree murder irrespective of whether the murder was planned and deliberate.

Following a trial, the jury convicted the accused of first degree murder. 3 Although a number of grounds of appeal are raised, the accused’s three principal arguments are: that the verdict was unreasonable; that a new trial is required because prejudicial comments made by the Crown during its closing address were not sufficiently cured by the trial judge’s instructions to the jury; and lastly, that the accused was unable to make full answer and defence because of missing evidence. 4 The missing evidence relates to four items that were either destroyed, lost or used up since the 1984 murder.

These items are: 1) the swab material used in 1984 for the serology analysis which was completely used up in 2005 to extract the DNA (the swabs); 2) the knife that had been found near the scene of the murder (the knife); 3) records of the halfway house where the accused was living at the time of the murder (the halfway house records); and 4) police surveillance notes which were created during their

investigation of the accused for bank robberies in 1984 (the surveillance records). STANDARD OF REVIEW 5 The test for unreasonable verdict is whether the verdict was one that a properly instructed jury acting judicially couldreasonably have rendered (see R. v. Yebes, (SCC), [1987] 2 S.C.R. 168; and R. v. Biniaris, 2000 SCC 15, [2000] 1S.C.R. 381). 6 The decision by a trial judge as to whether proper jury instructions can cure any potential prejudice to an accused isan exercise in judicial discretion.

Assuming the trial judge did not err in law or on the facts, that decision is entitled to significantdeference and should not be overturned unless it was so clearly wrong as to amount to an injustice (see R. v. Lamirande (S.C.) et al., 2002MBCA 41 at para. 126, 163 Man.R. (2d) 163; and R. v.

Grant (I.M.), 2009 MBCA 9 at para. 69, 236 Man.R. (2d) 54). 7 A trial judge’s decision to refuse to grant a stay on a lost evidence motion is also an exercise of discretion andappellate intervention will only be justified if there is misdirection on the part of the trial judge or if the decision is so clearly wrong as toamount to an injustice (see R. v. Carosella, (SCC), [1997] 1 S.C.R. 80 at para. 48; and R. v. Bjelland, 2009 SCC 38 atpara. 15, [2009] 2 S.C.R. 651). THE FACTS 8 On May 17, 1984, the victim’s body was found in the bush near Saskatchewan Avenue and Moray Street inWinnipeg.

There was no clothing on her body below her waist, and her bra was stretched upward, revealing her breasts. Her pantieswere found nearby on the ground. The following day, an autopsy was performed. It reported that the victim had 15 different stabwounds on her body, and that three stab wounds into her lungs and two in the abdomen were all potentially fatal. She also had bruisingon the posterior vaginal wall. Her genitalia contained a whitish fluid, where non-motile sperm was identified. Four swabs were takenfrom her vagina and rectum.

The autopsy revealed that the 48-year-old victim died of multiple stab wounds, with evidence of recentsexual intercourse. The evidence established that the death had occurred at least 24 hours earlier and that May 15, 1984, could not beexcluded as the time of death. 9 Around this time, the accused had been under surveillance by police because of his suspected involvement in severalbank robberies. It is uncontested that at around noon on May 16, 1984, the police observed the accused in a green, 1967 Chevrolet Novaparked on Moray Street, about 200 yards south of Saskatchewan Avenue.

He appeared to be searching for something on the westboulevard of Moray Street. On May 17, 1984, at around 1:00 p.m., the accused was arrested in the course of a bank robbery anddetained in custody. 10 During the months of April and May of 1984, the accused had access to another vehicle: a blue, two-door 1978 DatsunB210 that belonged to his girlfriend, Lorna Wilson. On May 15, 1984, at approximately 8:30 p.m., a witness saw a two-door car similarin size, colour and shape to the Datsun driving in the area where the victim’s body was found.

That witness also said he saw a man and awoman in the car. 11 On May 21, 1984, a neighbour of the victim, Greg Kalen, gave a statement to police. He said that on May 16th, from1:00 to 2:00 p.m., he saw the victim walking back and forth from the front doorstep of her house to the curb.

He said he was quite certainof the date because it was his day off, but on cross-examination, he did allow that he was not 100 per cent sure of the date that he saw herand that there was a very slight chance he had the wrong date. 12 On May 25, 1984, a person found a knife in a sheath on the ground on the west side of Moray Street about 200 to 300 yards south of Saskatchewan Avenue, which was in the same area where the accused had been seen on May 16, 1984 (see para. 9above). This person took the knife home and later turned it over to the police. The knife and sheath were photographed.

Between thetime it was found and the investigation was reopened over 20 years later, the knife was lost by the police. 13 On May 26, 1984, the police interviewed the accused with respect to why he was on Moray Street at noon on May 16,1984. He first replied that he was collecting salvage. He was then informed that they were investigating a homicide. He deniedcommitting the murder. He was asked again why he was there. He then stated: “No bullshit now …. I drove down Saskatchewan ontoMoray. I was waiting for my contact to get my piece.

It’s his spot, not mine.” He told the police that he knew they were watching him,so he started picking up pop cans. He said he then got nervous and left. The police eliminated him as a suspect, stating in their reportthat “his explanation is plausible, and the time factor eliminates him.” The time factor is in reference to Greg Kalen’s statement that hesaw the victim in front of her house from 1:00 to 2:00 p.m. on May 16th. 14 In 1988, the police were advised that Leonard White, an inmate, claimed to have committed this homicide. He was interviewed on November 7, 1988.

He stated he was responsible for the murder of a woman on May 17 to 18, 1984, out by the airport, inthe bush near Whytewold Park. This is in the proximate area of the murder scene. He described his victim as a white woman, late 30’sor early 40’s, with kind of brownish, short hair. He said she was raped by a “Ricky Morris” while he waited in the car. He then said hekilled her after the rape by stabbing her three or four times. Police were never able to locate anyone by the name of Ricky Morris andconcluded that no such person existed.

Their investigation also revealed that the accused had never used that name as an alias. 15 White was never charged with the murder because the police had concerns about the reliability of his confession. Theyfelt that he was not familiar with the kinds of details that only the killer would know, such as the kind of knife used and where it wasdiscarded. They were of the view that much of the detail he offered was the same as that provided to the media. In short, the police didnot believe he was the killer. In 1998, White provided a sample of his blood for DNA testing.

He was excluded as the contributor to theDNA found in the victim and from a tissue also found at the scene. By the time this matter came to trial, Leonard White had died. Hisevidence was presented through the testimony of two civilian witnesses who testified about certain comments White made to them. Inaddition, three police officers testified with respect to statements White gave them in 1988 and 1998.

16 On March 21, 2005, the DNA extracted from the sperm found in the victim’s vagina and rectum was matched to theaccused’s DNA that was stored in the National DNA Data Bank. As a result, police obtained a warrant for the accused’s DNA. He wasinterviewed on video on April 21, 2005. During the interview, he repeatedly denied knowing the victim. He did agree that the knife andsheath found in the bush were “similar” to a knife he used to carry on his person. He was charged with first degree murder on November18, 2005. He was again interviewed on that date. He continued to deny knowing the victim.

At trial, however, he admitted, by way ofan admitted fact, that the DNA found in the victim’s vagina was his and that he had had sex with her. ANALYSIS

i) The missing evidence 17 Following arraignment, the accused moved for a judicial stay of proceedings pursuant to s. 24(1) of the Canadian Charterof Rights and Freedoms (the Charter) in relation to four items arising from the 1984 murder investigation which were no longeravailable. The accused alleged that this missing evidence infringed on his s. 7 Charter right to make full answer and defence. It is well-known that a request for a judicial stay of proceedings is the ultimate remedy and is appropriate only “in the clearest of cases” (seeCarosella; R. v. La, (SCC), [1997] 2 S.C.R. 680; R. v.

Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; and R. v. Taillefer; R.v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307). 18 The trial judge, after a comprehensive and considered review of the law and the evidence, found that this was not one ofthose “clearest of cases” justifying the stay remedy. He dismissed the accused’s application for a stay (2009 MBQB 154, 241 Man.R.(2d) 155). However, the trial judge did advise counsel that he would be providing specific instructions to the jury in the final charge toaddress the evidentiary failings with respect to the missing items.

These instructions were as follows: There is indeed evidence on which you can find that some exhibits may have been lost. You should consider first whether those exhibitshave in fact been lost. To decide this question, you should take into account all of the circumstances surrounding the unavailability ofthose exhibits and how they came to be lost. Take into account as well any explanation, if given, for the loss of this evidence.

If you find that those items have in fact been lost or were otherwise not preserved, and that the explanation for their unavailability isinadequate, then you may find that this evidence would not support the case of the Crown. The effect that the unavailability of thisevidence may have on the obligation of the Crown to prove the case against [the accused] beyond a reasonable doubt will be for you tosay. 19 The accused recognizes that a judge’s decision on remedy is an exercise in discretion.

He also agrees that, because thetrial judge did not err on the law or the facts, appellate intervention will only be justified if the decision on remedy is so clearly wrong asto amount to an injustice (see Carosella at para. 48).

The accused’s submission on appeal is that, although the trial judge did not err inrefusing to grant the stay, his decision to refuse to give any remedy with respect to the missing swabs and reports and to refuse to excludeall of the evidence relating to the existence of the knife is so clearly wrong as to amount to an injustice. 20 Let me first make clear that it is not correct to say that the trial judge refused to grant any remedy with respect to themissing or lost evidence.

He did provide specific instructions to the jury in the final charge to address these shortcomings in theevidence. 21 The law with respect to a lost evidence motion is uncontroversial. Not every loss of relevant evidence will necessarilyinfringe on an accused’s right to make full answer and defence. As recognized by the Supreme Court of Canada in La, “owing to thefrailties of human nature, evidence will occasionally be lost” (at para. 20).

When evidence is lost or missing, the Crown has anobligation to explain that loss and satisfy the trial judge that it was not due to unacceptable negligence or an abuse of process. Where theCrown has satisfactorily explained the loss, the onus shifts to the accused who, in order to be successful, “must establish actual prejudiceto his or her right to make full answer and defence” (at para. 25).

Sopinka J., for the majority, also explained in La that the principalconsideration, in relation to whether the explanation of the Crown is satisfactory, “is whether the Crown or the police (as the case maybe) took reasonable steps in the circumstances to preserve the evidence” (at para. 21). 22 In the instant case, the accused alleges that four items of missing evidence, either separately or collectively, infringed onhis right to make full answer and defence.

a) The Swabs 23 The swabs were used in 1984 for the serology analysis. Unfortunately, the totality of the swab material was then used upin 2005 to extract the DNA. The accused submits that because the evidence was dissipated, he did not have the option of obtaining anindependent DNA analysis of the swabs. He argues that the trial judge’s refusal to grant a remedy was so clearly wrong as to amount toan injustice. 24 In my view, there is no merit to this argument. The explanation for the unavailable swabs is reasonable: they were usedup to conduct the different tests.

It is not incumbent on the police to preserve evidence for a test (the DNA analysis) that was notavailable at the time (see La at para. 21 and R. v. Larsen (A.), 2003 BCCA 18 at para. 44, 176 B.C.A.C. 245). In addition, there was noevidence of unacceptable negligence or abuse of process. 25 On the question of whether the accused suffered actual prejudice, had the accused wished to explore issues pertaining tothe DNA analysis, all of the records, findings, assessments and analysis of the DNA were available to him. In addition, each person whotested and examined the swabs was available to testify.

Moreover, and significantly, prior to the trial, the accused conceded that theDNA found on the victim’s body was his.

b) The Knife

26 When the knife was found, it was tagged and stored. The evidence was that it was at one point photographed, taken out of storage and sent to the RCMP for forensic analysis (fingerprinting and serology). The RCMP then returned the knife to the Winnipeg Police Services. According to the police’s evidence control log, the last person to have possession of the knife was the designated exhibit officer on May 29, 1984. Sometime between then and when the case was reopened over 20 years later (in 2005), it was lost. The police are unable to explain how that occurred.

The police testified they followed procedures and, despite significant effort to try and find the knife over a two-week period, were unable to locate it. 27 The accused argued at trial for a stay as well as for an order excluding any reference to the knife. On appeal, counsel for the accused candidly acknowledges that the request for a stay was “too strong,” but submits that the judge’s refusal to exclude any reference to the knife was so clearly wrong as to amount to an injustice. I reject the accused’s submission. 28 The trial judge’s decision on remedy is entitled to significant deference.

In his reasons, the trial judge referred to the La case. In that case, the police were unable to explain how they had lost an important piece of evidence, a taped statement of the sexual assault victim. The evidence was that, although the police had taken care to preserve the tape, they were unable to find it after having searched for it. The majority of the Supreme Court of Canada concluded that the tape had been lost through “innocent inadvertence” (at para. 1).

They held that, as there was no evidence of unacceptable negligence and the police had “not [failed] to take reasonable steps in the circumstances to preserve the tape” (at para. 29), the Crown’s explanation was satisfactory. 29 The trial judge noted that the La case had “particular resonance” to the case at hand (at para. 39). As in La , the police testified they had followed standard procedure with respect to the storing of the knife and, in the end, were unable to explain the loss.

The trial judge found that there was no evidence to suggest an abuse of process and held that, even if a degree of carelessness could be imputed to the police, it did not amount to unacceptable negligence. He determined that there was nothing on the evidence before him to suggest that the loss was caused by anything other than the combination of human frailty and the lapse of a lengthy period of time (over 20 years).

He found that the Crown had satisfactorily explained the loss. 30 In the end, although the manner of the knife’s disappearance remains unknown, I would not interfere with the judge’s ruling, which is entitled to deference. He found that the police did take reasonable steps to preserve the knife. The police also took the necessary steps to preserve the image of the knife by photographing it and conducted the appropriate forensic analysis (which was available at the time) of any evidence that was on the knife.

Finally, after realizing that the knife could not be found in storage, the police conducted a rigorous two-week search for the missing item. I am of the view that, on this evidentiary record, the trial judge’s acceptance of the Crown’s explanation for the loss was reasonable. 31 On the question of actual prejudice, the accused argues that the trial judge erred in failing to find that the accused suffered prejudice because he could not test the lost knife for any substances that might eliminate it as a possible murder weapon. The Crown argues that the accused did not suffer actual prejudice.

If anything, it submits that the loss of the knife inured to the accused’s benefit because there was no opportunity for the Crown to establish, through DNA testing, that the human blood found on the knife in 1984 was that of the victim. 32 When considering the question of whether the accused has established “actual prejudice” to his right to make full answer and defence, it is necessary to do so in the context of the other available evidence surrounding the lost knife which was adduced at trial. The Crown filed as exhibits two clear and large photographs of the knife.

A ruler had been placed below the knife when it was photographed, allowing anyone looking at the photographs to know the dimensions of the knife. Although witnesses did not have the actual knife before them, they were provided with the next best evidence.

The evidence relating to the knife that was presented at trial and that formed part of the final charge to the jury was the following: 1) the knife and sheath were tested for fingerprints before they went missing, however no viable fingerprints were found; 2) the human blood sample taken from the knife in 1984 could not be sent for DNA testing in 2005 because it no longer existed.

The sample had been consumed, or used up, for the blood-typing analysis; 3) unknown or foreign matter found on the knife was sent for DNA testing, but no DNA profile could be developed as there was an insufficient amount to meet minimum standards for testing; 4) the stab wounds found on the victim’s body were consistent with the sort of knife that was depicted in the photographs of the knife; 5) when the accused viewed the photograph of the knife, while acknowledging a general similarity, he said there were differences between the knife shown in the photograph and the knife he acknowledges having possessed; and 6) when Lorna Wilson, the accused’s girlfriend, viewed the photograph of the knife, while acknowledging a general similarity, she said there were differences between the knife shown in the photograph and the knife she remembers the accused having possessed. 33 From the above, it is clear that had the knife still been available in 2005, more forensic testing could have yielded additional information with respect to points 1), 2) and 3).

These results may have come back neutral, may have assisted the accused or they may have gone to his detriment. As the trial judge held, no one knows, and to go any further would be to speculate. 34 As to points 4), 5) and 6), the trial judge found that the accused failed to satisfy him that he suffered actual prejudice because of the missing knife.

He was evidently not persuaded, in light of the existence of the photographs, that the actual presence of the knife at trial would have materially changed the evidence with respect to those points. 35 As previously stated, once the loss of the missing evidence was satisfactorily explained to the trial judge, the onus shifted to the accused to demonstrate that actual prejudice resulted from the loss. In the end, the trial judge found that the loss of the knife provided but a speculative basis for prejudice and remained unconvinced that the accused had met his onus.

He rejected the request for a stay, as well as an earlier request to exclude from the evidence any reference to the knife. I have not been persuaded that the trial judge

in any way erred in the exercise of his discretion.

c) The Halfway House Records 36 The halfway house where the accused was living at the time of the murder was operated in 1984 by the Salvation Armyunder the auspices of the Correctional Service of Canada. The Salvation Army is required to maintain its records for seven years. In thecircumstances of this case, there was no reason for either the Salvation Army or the Correctional Service to have kept these records afterthe seven-year period. The police had not asked them to keep the records as the accused did not become a suspect in this murder until2005.

Furthermore, while the police have a duty to disclose to the Crown the fruits of their investigation, these records were not createdby the police, nor were they in the control of the police or the Crown. Once again, I see no error in the trial judge’s decision. 37 On the question of actual prejudice, I will consider the matter at the same time as I examine that issue with respect to thesurveillance records.

d) The Surveillance Records 38 These missing records relate to the notes taken by the police in 1984 when they had the accused under surveillance forsuspected involvement in several bank robberies. When the accused attended near the scene of the murder on May 16, 1984, the policewere unaware that the murder had occurred. The victim’s body was only discovered on May 17, 1984. Coincidentally, on the same dateas the discovery of the body, the accused was arrested on robbery charges. He was subsequently convicted and sentenced for the 1984robbery.

These surveillance notes remained with the robbery investigation; they did not follow the murder file. Indeed, at the time these1984 surveillance notes were made, the accused was not a murder suspect. He only became a suspect in 2005 when DNA technologylinked him to the victim. 39 When this murder case was reopened in 2005, the police no longer had their notes regarding the accused’s surveillance onthe robbery investigations. However, they still had their notes with respect to this murder investigation.

Those notes revealed that theaccused was interviewed on May 26, 1984, to ascertain why he had been in the vicinity of the murder scene. The evidence before thecourt shows that following that interview, the accused was eliminated as a murder suspect. 40 The trial judge was satisfied with the explanation offered for the missing surveillance notes. Those missing notes werenot taken during the course of investigating the accused for this murder and it was understandable and reasonable, once he was found notto be a suspect in the murder, that the surveillance notes would follow the robbery file, not the murder file.

The trial judge accepted thatthere was no longer any reason for the police to still have those notes 20 years later. Again, I see no error in the trial judge’s ruling. 41 On the issue of any actual prejudice arising from the missing halfway house records and surveillance records (the missingrecords), the accused argues that he suffered prejudice because the missing records may have assisted him in his ability to present alibievidence. It should be noted that an alibi was never advanced by the accused.

He contends that those records were a potential source ofinformation to refresh his memory as to where he was in May of 1984. 42 The trial judge found that there was no evidentiary basis to conclude that the missing records may have assisted theaccused in establishing an alibi.

He observed the following: ... the foundational evidence on this motion is without any sort of testimony from the accused or any indication as to how the lost itemsin question otherwise prejudice his ability to make an alibi or to claim alibi. 43 In the end, the trial judge found that the missing records may or may not have given the accused the information toadvance an alibi. The evidentiary foundation was lacking and the nature of the accused’s prejudice was conjectural at best.

Once more, Ihave not been persuaded that the trial judge erred in finding that the accused had not met his onus of establishing actual prejudice or inrefusing to grant the stay. 44 The accused also submits that the trial judge erred in failing to order, as an appropriate remedy, that the police evidenceabout the accused’s presence in the vicinity of the murder scene on May 16, 1984, be excluded. Let me start off by pointing out that attrial, the accused was asking for a judicial stay of proceedings. He never sought to exclude the police evidence relating to the fact thathe was seen near the scene of the crime.

It is difficult to conclude that a judge errs in not granting a specific remedy when he or she wasnever asked to consider such a remedy (see R. v. Glasgow (1996), (ON CA), 110 C.C.C. (3d) 57 at 60 (Ont. C.A.)). However, as this supplementary argument goes to an issue that was raised at trial (a remedy request arising from missing evidence), Iwill consider it. 45 On appeal, the accused submits that there were two elements of evidence in the police records which actually gave analibi for May 15, 1984.

First, he says that an alibi was indirectly advanced by a friend of the accused who had not testified at trial, butwho had been interviewed by police.

Second, by stating in his May 26, 1984 statement that he was aware that he was under policesurveillance, he was in effect confirming that he would not have been involved in a murder. 46 This is contrary to the position taken by different counsel for the accused at trial, who said that, had the missing recordsbeen available, they “may very [well] have provided [the accused] with a full and complete alibi.” In any event, if the accused now says,on appeal, that there was documentation available to him (through the police reports and his own statement to police) to advance an alibi,then it is difficult to accept his argument that he suffered prejudice because the missing records may have assisted in his ability to presentalibi evidence.

I would not give effect to this ground of appeal.

e) The Cumulative Effect of the Missing Evidence

47 The accused also argues that, while any piece of missing evidence in isolation may not be sufficient to justify the remedyhe seeks, when viewed cumulatively, he says the loss of these four items does infringe his s. 7 Charter rights. 48 The trial judge found the conduct that led to the missing, destroyed or dissipated evidence to be neither the result ofunacceptable negligence nor through conduct which was conceived and executed for the purpose of defeating the Crown’s obligation todisclose.

However, he did recognize and appreciate “that the cumulative prejudicial effect of all of the lost, destroyed or unpreservedevidence, might be potentially greater than in some cases” (at para. 46). 49 In the end, while the trial judge did not grant the remedy the accused was seeking, he did decide that a remedy wasrequired to address the cumulative effect of these evidentiary failings. He therefore gave the jury the specific instructions found at para.18 above.

In my view, that decision is a reasonable exercise of judicial discretion and I would not interfere with it. ii) Unreasonable verdict 50 The accused argues that the verdict was unreasonable because of three unique aspects of this case: first, another person,Leonard White, confessed to the murder; second, the accused was under police surveillance during the time the murder was committed;and third, a neighbour of the victim testified that he saw the victim alive at a time when the accused was in custody on unrelated robberycharges.

I would not accede to this argument as it fails to recognize two important pieces of the evidence before the jury that are inconflict with those three features. 51 First, DNA evidence relating to the sperm found in the victim’s body was matched to the accused’s DNA. Whenconfronted with this evidence, the accused, in two video statements to police, not only denied knowing the victim, he stated that it was“impossible” that it could be his DNA in the sperm found in the victim’s body. Yet the evidence established otherwise and, in the end,the accused conceded that it was his sperm.

The evidence before the jury also excluded White as a contributor of the DNA found in thevictim as well as from a tissue found at the scene of the murder. 52 Second, there was evidence placing the accused in the vicinity of the murder scene around the time of the murder. OnMay 16, 1984, the accused was seen near the murder site and in an area close to where a knife and sheath, similar to one that he carried,were located. That knife had human blood on it. The accused acknowledged in a video statement to police that he was in fact there onthat date, but denied any knowledge of a murder.

He said he was told to attend at that location and wait for his contact to deliver aweapon to him for use in a bank robbery. In addition, on May 15, 1984, a car was seen near the scene of the crime. The accused hadaccess to a car similar in appearance to the one seen on the 15th. 53 It is always open to a jury to accept or reject, in full or in part, the testimony of witnesses they had the advantage to seeand assess. The evidence of the neighbour, Greg Kalen, was that he was not 100 per cent certain of the date he last saw the victim alive.

With respect to White’s confession, the jury heard the concerns raised about its reliability. It is clear from the verdict that the jury choseto reject the neighbour’s evidence as well as White’s confession. It was open to them to do so. 54 In addition, before the Crown had closed its case, it had been established that it was the accused’s sperm in the victim’sbody. Although the presence of the incriminating evidence cried out for an explanation, the accused did not testify. Once the Crown’sevidentiary foundation reaches that level, the accused faces a crucial decision on whether to testify.

As I recently explained in R. v.Oddleifson (J.N.), 2010 MBCA 44, 255 Man.R. (2d) 68, leave to appeal to S.C.C. denied, [2010] S.C.C.A. No. 244 (QL) (at para. 26): ... [O]nce the Crown had closed its case, ... [i]t cried out for an explanation. At that point, the accused had a choice. As was stated byL’Heureux-Dubé, J. in R. v. Cook (D.W.), (SCC), [1997] 1 S.C.R. 1113; 210 N.R. 197; 188 N.B.R. (2d) 161; 480A.P.R. 161, at para. 39, “... Once this threshold has been surpassed, however, it is up to the accused to call evidence or faceconviction. ...” Unlike the co-accused, the accused chose not to lead evidence.

It is trite to say that the accused’s failure to testifycannot be used as a sword: it cannot be used to infer guilt. However, as a practical matter, that failure to testify equates to an absence ofevidence, evidence which could have been used to help support the accused’s argument that the Crown has not met its burden and thatthe accused, like the co-accused, may have also been a dupe.

Although the accused had the right not to testify, that decision carried therisk of not providing the trial judge with the necessary evidentiary foundation which, if accepted, could have precluded the inference ofpossession from being drawn. Arbour, J.A. (as she then was), said it best in this often-cited passage found in R. v. Johnson (P.D.)(1993), (ON CA), 61 O.A.C. 189; 12 O.R. (3d) 340; 79 C.C.C. (3d) 42 (C.A.), “...

It is not so much that the failure totestify justifies an inference of guilt; it is rather that it fails to provide any basis to conclude otherwise ...” (at para. 27). 55 The accused’s sperm found its way into the victim’s body in one of two ways: either with her consent or forcefully. TheCrown’s theory was that the victim had been the victim of a sexual assault, and that this assault and the murder formed part of acontinuous series of events.

The evidentiary basis for its theory was, first, the position and state of undress of the victim’s body when itwas found (lying on her back with her legs spread out, no clothing below her waist, her bra stretched upward and over her breasts and herpanties found on the ground nearby), and, second, the testimony of Dr.

Markesteyn, the chief medical examiner, that: 1) no sperm wasfound on her panties; 2) he did not have to go too far into the victim’s vagina to obtain a sample of the sperm; 3) there was no leakage ofsperm from the vagina, which, common sense would suggest, normally occurs when a woman stands up and puts on her panties; and 4)common sense would also indicate that the fact sperm was found in her vagina but not on her panties meant that it was not likely that shewas wearing the panties after the sperm was in her vagina, yet her panties had been removed and were found on the ground near herbody. 56 This significant body of evidence had to be contrasted with the only evidence which might have supported the accused’sposition that the sex had occurred outside of the murder incident: Dr.

Markesteyn’s neutral evidence (in the sense that it is notincompatible with the Crown’s theory) that non-motile sperm can exist in a vagina for up to four to five days. The Crown’s case criedout for an explanation. Given the state of the evidence, the accused’s failure to testify “fail[ed] to provide any basis to conclude” that thesexual intercourse occurred at a time or place other than as part of a continuous series of events surrounding the murder.

57 Furthermore, there was circumstantial evidence of lack of consent (see above at para. 55). It was open to the jury to infer from all of that evidence, including the stabbing, that the victim did not consent. As stated earlier, the accused did not testify and the defence called no evidence of any prior sexual encounter.

In actual fact, in the accused’s own statements to the police, he firmly denied any such encounter. 58 Moreover, on appeal, the accused’s failure to testify, or more accurately, the absence of an innocent explanation by the accused, can also be considered as a factor in assessing the reasonableness of the guilty verdict ( Oddleifson at para. 27) . In my view, given the evidence, the verdict reached by the jury was certainly one that a properly instructed jury acting judicially could reasonably have rendered.

I would not accede to this ground of appeal. iii) Whether proper instructions cure potential prejudice 59 The accused argues that a new trial is required because the prejudice caused by two comments made by the Crown during its closing address was not cured by the trial judge’s instructions to the jury. He submits that the Crown misstated or disregarded two previous rulings of the trial judge. 60 The first ruling dealt with fabrication. The accused had given four different explanations as to why he had been near the scene of the crime on May 16, 1984.

Two explanations were found in his 1984 statement to the police. The trial judge ruled that the Crown could ask the jury to consider fabrication and possible consciousness of guilt arising from fabrication surrounding only the two explanations advanced by the accused in his May 26, 1984 statement. In its closing address to the jury, the Crown referred to all four different explanations and invited the jury to consider fabrication and possible consciousness of guilt. The Crown stated: Perhaps Shakespeare said it best when he said, oh what tangled webs we weave when first we practice to deceive.

And [the accused] having given those two explanations on the 26th of May, being questioned some years later, 2005, about the same event, of course he couldn’t remember his original explanations, they weren’t true. The truth is immutable, there is but one truth, and yet [the accused], in answer to the same question as to why he was there, has given no less than three answers, a possible fourth, I was picking up salvage, I was waiting for my piece, I was buying weed, if I was there I was lost and getting my bearings. And from that, ladies and gentlemen, I suggest you can deduce and infer fabrication.

And fabrication, as I expect His Lordship will instruct you, can be, if you accept, evidence of a guilt (sic) mind, evidence of a consciousness of guilt. 61 The second ruling of the trial judge prevented the Crown from making any suggestion of arson with respect to a fire that destroyed Lorna Wilson’s car. There was evidence that a car similar to her car was seen being driven in the bush area where the victim’s body was found. It was later destroyed by fire. There was however no forensic evidence of arson.

In its closing address to the jury, the Crown stated the following: In the November statement you’ll read that [the accused] says that his associate Bobby Ives -- and my recollection of Lorna Wilson’s evidence is Bobby Ives lived in the same, same apartment block as did she, that [the accused] in November statement says that his associate, Bobby Ives, told him, you’ll never believe what happened and the accused replied, good news or bad news? And Bobby Ives told him Lorna’s car had burned.

Left unexplained as (sic) whether this is good news or bad news, but [the accused] in his statement says that’s the question he put to Bobby Ives before being told the car had burned. 62 After the Crown had finished its address, the trial judge excused the jury and, without delay, admonished counsel for the Crown, stating that he had “misstated and completely distorted” his ruling on fabrication. The trial judge also voiced his concern about how the issue with respect to the burnt car had been left with the jury.

After hearing from counsel, he immediately gave the following jury mid-trial instructions: Thank you, ladies and gentlemen, I know it’s been a long day, just a couple of matters. Just arising out of the address given by [the Crown], two matters. At one point [the Crown] submitted to you that I would be providing you instruction and you would be permitted to consider various inconsistent explanations that [the Crown] identified as evidence about which you might draw inferences concerning [the accused’s] consciousness of guilt.

In stating that and then explaining what I would do, [the Crown] overstated what you can do and what I will do in instructing you. I will in fact be instructing you, as I’ll tell you in a moment, about two identified explanations, if you so find them, on May 26th, that you may, after you follow my specific instruction, make inferences with respect to [the accused’s] awareness or consciousness of … his involvement in [the victim’s] death.

However, those are the only two, only two explanations and they relate to what he said about collecting salvage and then the subsequent further explanation concerning the meeting of a person for the purposes of collecting a piece.

In my instruction to you, I will tell you, as I’ll tell you know (sic), that it’s open to you to determine that there are no inconsistent explanations and that there are no differences or you may determine that there are differences and that there is a fabrication, one or more, but for the purposes of my instruction to you right now, [the Crown] was overstating what I would be instructing you on.

You will not be permitted to draw the type of inference that I’m suggesting you will be instructed on except in respect of those two specific portions of the May 26th, 1984 conversation that [the accused] had with [the two police officers], all right? And I’ll provide you more instruction on that when I, when I give you my, my general instructions, but I didn’t want you leaving today believing that you would be receiving more than, more than that with respect to that subject. The second matter relates to the portion of [the Crown’s] address where he invoked the conversation that took place between Mr.

Ives and the accused, … on the subject of Lorna Wilson’s burnt car. Let me just tell you now, as I have told you before, there is no forensic

evidence of arson in this case and neither is there adequate evidence in this case with respect to the date of the fire upon which you caninfer arson, okay?

So those are two matters I wanted you to hear immediately, even prior to my, my instruction. 63 The trial judge did provide more instruction on both of these matters in his final charge to the jury, adding, on the issue offabrication, that the Crown “was not correct and his related comments should be disregarded.” On the arson issue he stated “[t]here is noforensic evidence establishing arson.” This was his third instruction on that point. 64 The law is clear. When counsel make erroneous comments in their jury addresses, the trial judge must correct themisstatement (see R. v.

Romeo, (SCC), [1991] 1 S.C.R. 86 at para. 95; and R. v. Rose, (SCC), [1998]3 S.C.R. 262 at paras. 126 and 127). A mid-trial instruction to disregard can effectively correct any concern that a jury might misuse theinformation when rendering its verdict, if it is given promptly and is accompanied by an explanation of why that information should becompletely disregarded (see R. v.

Normand (D.G.), 2002 MBCA 95 at para. 20, 166 Man.R. (2d) 179). 65 In this case, the trial judge found the Crown’s comments inappropriate and decided that immediate mid-trial instructions,as well as additional final instructions, were needed to remedy the situation. He also forcefully and directly explained the reason for hiscorrections. The trial judge was of the view that this remedial action was sufficient to cure any potential prejudice caused by theCrown’s comments.

I also note that counsel for the accused neither moved for a mistrial when this issue arose at trial nor complained asto the adequacy of the additional remedial instructions. 66 I see no error in the manner in which the trial judge chose to deal with the situation. He exercised his discretionreasonably. His decision was certainly not wrong, let alone so clearly wrong, as to amount to an injustice.

In the result, I would notaccede to this ground of appeal. iv) New issue raised on appeal 67 At the appeal hearing, my colleague Beard J.A. raised an issue which had not been raised by counsel at trial or newcounsel on appeal. The parties requested additional time to respond. That issue was subsequently put to paper and sent to the parties. Itreads as follows: ... [W]hether the way in which the evidence was related to the elements of the offences of murder and sexual assault in the jury chargemay not have fairly left the theory of the defence with the jury.

In other words, in explaining the elements of murder and sexual assault, was the evidence of the two events linked throughout the charge(i.e. often referring to the jurors considering “the circumstances of the murder/crime scene”) without explaining that the evidence of oneevent may not be relevant to the other event? For some examples of the evidence referred to in the jury charge, see the following pagesof the transcript of the charge: pp. 62, ll. 4-7; 66, ll. 12-14; 69, ll. 1-13; 70, ll. 11-27; 72, ll. 23-33; and 73, ll. 26-28.

The position of the defence, as set out in the jury charge, was as follows: That Leonard White killed the deceased; that the accused hadsex with the deceased, but it is not known when or in what manner that occurred; that Dr. Markesteyn stated that sperm can remain in thevagina for up to five (5) days before they begin to deteriorate; and that the crown did not prove that the sex was non-consensual.

For example, should the jury have been told that the DNA evidence may not be of assistance in determining the identity of the murdererif the jury concluded that the sexual assault occurred on another occasion than the murder?

Also, should the jury have been told that the evidence of the stabbing and related wounds may not be relevant to the sex, or the use of theweapon in relation to the sex, if the sex and the stabbing occurred on two different occasions or were two consecutive but discrete events,those being that the perpetrator had consensual sex followed by the stabbing? 68 When stripped to its bare essence, the critical issue raised by my colleague is whether the theory of the defence wasadequately put to the jury. I have had the opportunity of reading the dissenting reasons of my colleague.

Respectfully, I must disagreewith them. For the reasons that follow, I am of the view that the theory of the defence was adequately before the jury. 69 Before addressing the issue raised by my colleague, I wish to underscore that appellate courts review decisions for allegederrors raised by counsel. Typically, our role is to review for error. Judges have to be careful not to search for error. Dickson J. (as hethen was), in Vézeau v. The Queen, (SCC), [1977] 2 S.C.R. 277, stressed the importance of not dissecting a charge (atp. 285):

A jury charge should not be anatomized, cut in pieces and examined part by part, as though it were a plant or animal in a laboratoryexperiment. The charge must be read as whole, together with all of the evidence at trial. …. See also, Watt J.A., who recently explained in R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, that (at para. 71): Appellate courts are to read jury instructions as a whole. We are not forensic pathologists dissecting the corpus of a charge in search of adisease process, much less to assay its effect on the survival of the body.

Our task is to administer justice, to deal with valid objectionsand to determine whether those claims have led to a miscarriage of justice: R. v. Cohen and Bateman (1909), 2 Cr.App.R. 197 (C.C.A.),at p. 207. 70 But I also recognize, as stated by the Supreme Court of Canada in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, that alldefences that have an air of reality are to be put to the jury, even if not raised by counsel. 71 When assessing a jury charge, our role is to review on a functional approach. The reason for using this approach wasexplained by Steel J.A. in R. v.

Korski (C.T.), 2009 MBCA 37, 236 Man.R. (2d) 259, as follows (at para. 102): .... The appellate role in reviewing a jury charge is to use a functional approach to avoid the danger of setting an impossible standard fortrial judges. So, the appellate review is an assessment to determine whether the accused, based on a review of the whole charge, has hada fair trial and must not be an examination to find minute error. See R. v.

Jacquard (C.O.), (SCC), [1997] 1 S.C.R.314; 207 N.R. 246; 157 N.S.R. (2d) 161; 462 A.P.R. 161. 72 As a result, when assessing the adequacy of the instructions to the jury, appellate courts will review the charge using afunctional approach, as opposed to one that is formulaic, to ensure “that the jurors would adequately understand the issues involved, thelaw relating to the charge the accused is facing, and the evidence they should consider in resolving the issues” (R. v. Cooper, (SCC), [1993] 1 S.C.R. 146 at 163).

This assessment will also involve a consideration of the nature of the evidence beforethe trial court, the live issues raised, the position of the parties on those issues and the addresses of counsel (see R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314 at para. 33). Again, what matters most, in relation to any issue, is the general message that wasin all likelihood left with the jury by the charge as a whole, not the “particular words used, or the sequence followed,” (R. v.

Daley, 2007SCC 53 at para. 81, [2007] 3 S.C.R. 523) which remain firmly embedded within the trial judge’s discretion. 73 The accused was charged with first degree murder pursuant to s. 231(5). The trial judge’s instructions included adetailed review of the evidence with respect to each essential element of that offence. His instructions included the following: In this case, the Crown says that [the accused] is guilty of first degree murder on the basis of Section 231(5) of the Criminal Code. …. [The trial judge then read that section] …..

Now, the Crown, in the present case, is alleging [the accused]’s guilt for first degree murder on the basis of having murdered [the victim]and sexually assaulted her with a weapon as part of the same series of events. …..

For you to find [the accused] guilty of first degree murder as charged, pursuant to Section 231(1) of the Criminal Code, the Crown mustprove each of these essential elements beyond a reasonable doubt: (1) that [the accused] caused the death of [the victim]; (2) that [the accused] caused the death of [the victim] unlawfully; (3) that [the accused] had the state of mind required for murder; (4) that [the accused] did something that was an essential, substantial and integral part of the killing of [the victim];

(5) that [the accused] committed a sexual assault with a weapon on [the victim]; and (6) that the sexual assault with a weapon and the murder of [the victim] were part of the same series of events. 74 After reviewing the evidence for each of the first four of these six elements, the trial judge instructed on the fifth element by reviewing the essential elements of the offence of sexual assault with a weapon and reviewed the evidence relating thereto.

He explained the following: Now for you to find that [the accused] committed a sexual assault with a weapon on [the victim], Crown counsel must prove each of the following essential elements beyond a reasonable doubt: (1) that [the accused] intentionally applied force to [the victim] ; (2) that [the victim] did not consent to the force that [the accused] applied; (3) that [the accused] knew that [the victim] did not consent to the force that [the accused] applied; (4) that a weapon, in this case a knife, was involved; and finally (5) that the force that [the accused] applied took place in circumstances of a sexual nature. 75 The trial judge then reviewed the evidence with respect to each of these essential elements.

After reviewing the evidence with respect to the fifth element of the offence of sexual assault with a weapon, he instructed as follows: If you are not satisfied beyond a reasonable doubt that [the accused] intentionally applied force to [the victim] in the context of the allegation constituting the essential element of sexual assault with a weapon, then you must find [the accused] not guilty of first degree murder, but guilty of second degree murder. …..

If you are satisfied beyond a reasonable doubt that [the accused] applied force to [the victim] in circumstances of a sexual nature, you must go on to consider the last essential element the Crown must prove to establish the offence of first degree murder charged in this case. It is important that you remember that for you to find [the accused] guilty of first degree murder in this case, you must be satisfied that the Crown has established not only the elements of the offence required for murder, but also those essential elements that I just listed, which make up the offence of sexual assault with a weapon.

If you are not satisfied beyond a reasonable doubt that [the accused] committed a sexual assault with a weapon on [the victim], you must find [the accused] not guilty of first degree murder, but guilty of second degree murder. If you are satisfied beyond a reasonable doubt that [the accused] committed a sexual assault with a weapon on [the victim], you must go on to the next question.

Were the sexual assault with a weapon and the murder of [the victim] part of the same series of events? 76 The trial judge, after returning to the sixth and final element of first degree murder and explaining what is meant by “part of the same series of events,” proceeded to review the evidence with respect to that last essential element. He closed his instructions with respect to this part of his charge as follows: To answer this question you have to consider all the available evidence of what happened.

In this case, that evidence is circumstantial as it relates to the physical evidence at the crime scene, the evidence respecting the time of death and the evidence relating to the sperm inside [the victim]’s vagina. That evidence may show that the murder and the sexual assault with a weapon were all part of a continuous series of events that was really a single ongoing transaction. On the other hand, the evidence may indicate otherwise, but it is for you to say. Use your good common sense. …..

If you are not satisfied beyond a reasonable doubt that the sexual assault with a weapon and the murder of [the victim] were part of the same series of events, … you must find [the accused] not guilty of first degree murder, but guilty of second degree murder.

If you are satisfied beyond a reasonable doubt that the sexual assault with a weapon and the murder of [the victim] were part of the same series of events, … you must find [the accused] guilty of first degree murder. [emphasis added] 77 It is clear from a review of the transcripts that the defence, the Crown, and the trial judge were very much alive to the issues regarding the manner in which the sexual intercourse occurred (by consent or non-consensual) and when that act may have occurred.

On the issue of consent, it must be remembered that at one point during the trial, the accused advanced the position that the sexual intercourse was consensual. The Crown took exception, submitting that there was no evidence, direct or circumstantial, of consent. It pointed to the fact that the accused had failed to provide an innocent explanation for the reason his sperm was found in the victim’s body. It will be recalled that the accused was interviewed twice by the police and was unwavering in his denials of any knowledge of or any sexual contact with the victim.

The accused stated it was “impossible” that it could be his sperm in her body. 78 The defence argued vigorously against the Crown being allowed to mention to the jury the accused’s failure to provide an innocent explanation. T he trial judge ruled that he would only permit the Crown to invoke this failure if the accused raised the possibility that he and the victim had had consensual sex. The following day, shortly after confirming this ruling, the trial judge asked for the position of the defence for his charge. The accused’s position was not that he had had consensual sex with the victim.

Rather, it was that the Crown had not proven beyond a reasonable doubt, first, that the accused had had non-consensual sex with the victim and/or, second, that the sexual act and the murder occurred as part of a continuous series of events. 79 When the trial judge instructed the jury on the elements of the sexual assault offence and the evidence relating thereto, he did not mention the accused’s failure to provide an innocent explanation for the presence of his sperm in the victim’s body when interviewed by the police on two separate occasions. This was what defence counsel wanted.

He appropriately relied on the defence position to craft his charge. 80 On the issue of when the sexual act may have occurred, t here was significant evidence that it was part of the same transaction as the murder (see para. 55 above). The only evidence that might have supported the accused’s position that the sex had occurred at another time was Dr. Markesteyn’s testimony that non-motile sperm can exist in a vagina for up to four to five days. This was clearly stated to the jury. The trial judge instructed as follows: It is the position of the defence that [the accused] had intercourse with [the deceased].

It is not known, however, when or in what manner this intercourse occurred. Based upon Dr. Markesteyn’s evidence that non-motile sperm can remain within the vagina for five days, it is the position of the defence that the Crown had not proven that [the accused] had non-consensual sex beyond a reasonable doubt. 81 As already stated, the principal issue raised by my colleague is whether the theory of the defence was adequately put to the jury. In my opinion, it was. The critical principle is not whether particular words are used or the order in which the general message is conveyed in the jury charge.

Reasonable people can always disagree on that. A jury charge is to be reviewed on a standard of adequacy, not perfection. See Jacquard at para. 2 ; and Daley (at paras. 30-31 ): When considering the adequacy of a trial judge’s charge on these elements, it is important for appellate courts to keep in mind the following. The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of

the jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case. In determining the general sense which the words used have likely conveyed to the jury, the appellate tribunal will consider the charge as a whole. The standard that a trial judge’s instructions are to be held is not perfection. The accused is entitled to a properly instructed jury, not a perfectly instructed jury: see Jacquard , at para. 2 .

It is the overall effect of the charge that matters. [emphasis added] 82 In my view, after having heard the charge as a whole, the jury would have been satisfactorily informed about the relevant issues and the theory of the defence. The only evidence that might have suggested that the accused had had sexual intercourse with the victim at a time other than as part of the same murder transaction was clearly stated to the jury.

Moreover, and contrary to what is stated in my colleague’s dissent, the jury was explicitly instructed that it could find that the sexual intercourse and the murder were not part of the same series of events. Obviously, the jury was convinced beyond a reasonable doubt that it was the accused, not White, who committed the murder. The jury then had to decide whether the sexual assault offence occurred and, if so whether it formed part of the same transaction as the murder.

In my view, the jury charge adequately conveyed to the jury when it would have had to return a verdict of second degree murder, as opposed to first degree murder. 83 The short answer to my colleague’s dissent, with respect, is that, having identified the evidence that supported the theory of the defence, t he trial judge instructed the jurors no less than six times that, if they were not satisfied beyond a reasonable doubt as to any of the essential elements of the sexual assault with a weapon and that the assault and the murder were part of the same series of events, they were to find the accused not guilty of first degree murder, but guilty of second degree murder. 84 My colleague, in her dissenting reasons, says that the trial judge erred by failing to put to the jury factual situations raised by the evidence or lack thereof, not put forward by the accused, which, if believed, would raise a reasonable doubt regarding an element of an offence.

Trial judges are often faced with the delicate balancing that occurs between charging on available defences or fact scenarios, even though not raised by counsel, and giving appropriate deference to counsel’s trial strategy. I am not prepared to interfere with the trial judge’s discretionary decision in this case. Here, the accused chose to put forward as his primary defence that it was White, not he, who killed the victim. Putting to the jury the fact scenarios, as my colleague advocates, would have, in effect, weakened this considered choice.

If the jury had been charged as outlined by my colleague, the accused no doubt would argue on appeal that any resulting conviction was founded on a set of facts not advocated by counsel at trial. I have not been persuaded that the trial judge erred by deferring to counsel’s trial strategy and by not putting them forward to the jury. 85 Moreover, I say, with the greatest of respect, that the fact scenarios, set out by my colleague in her dissent at paragraph 119, are speculative.

These scenarios are, first, that the accused had had sex with the victim up to five days prior to the murder; and she was, sometime later, taken to the murder site, stabbed and left in the state she was found (see para. 55 above) or, second, that the accused had had sex with the victim on the same occasion as, but before, the murder and then killed her and that the Crown failed to prove beyond a reasonable doubt that the sex was non-consensual. These scenarios are, in my respectful view, “fanciful or far-fetched” (see Cinous at para. 48 ).

Putting them to the jury would, in effect, be asking the jury to engage in speculation. That is why the trial judge was correct for not having done so. 86 As a final point, when the trial judge invited counsel to raise their concerns with respect to the jury charge, counsel for the accused did not advise they felt the theory of the defence had not been fairly set out in the charge. As was recently stated by the Supreme Court of Canada in R . v.

S.G.T ., 2010 SCC 20 , [2010] 1 S.C.R. 688 (at para. 36 ) “ In an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel ….” Likewise, new counsel on appeal did not raise such a fundamental and vital issue as a ground of appeal. The accused was represented at trial by two skilled and experienced counsel, whose competence has not been impugned by equally competent new counsel on appeal.

W hile not determinative of the issue, the fact that experienced counsel at trial, and on appeal, were of the view that it was not sufficiently important to warrant an objection at trial or to be a ground on appeal is not an irrelevant consideration. Not only does it speak to the overall satisfactoriness of the jury charge on this issue, it also says something about the gravity of any omissions in the eyes of defence counsel (see Jacquard at para. 38 ). 87 In the end, I am of the opinion that, in this case, the trial judge’s charge left the jury with an adequate understanding of the defence position.

In the result, I am not prepared to intervene. CONCLUSION 88 I would dismiss the appeal. J.A. I agree: J.A.

BEARD J.A. (dissenting) I. NEW ISSUE RAISED ON APPEAL 89 The new issue that was raised on appeal is set out at para. 67 of the reasons of the majority. II. THE LAW 90 There are four legal principles related to jury instructions and appellate review of jury instructions that are relevant tothis issue, being: (

i) appellate courts must adopt a functional approach to reviewing jury charges, which should be considered as a whole, because thepurpose of such review is to ensure that juries are properly, not perfectly, instructed; (ii) an accused is entitled to receive a fair and balanced charge, one that states the legal factors correctly and that fairly reviews theevidence, including how the evidence relates to the issues and the law; (iii) a trial judge must put to the jury all alternative bases of defence for which a realistic factual basis exists; and (iv) a trial judge should avoid putting non-issues to the jury as this will only serve to deflect the jury from the real issues. (

i) Functional Approach 91 I agree with my colleagues regarding the need to take a functional approach to reviewing jury charges. As they havenoted, the requirement that an appellate court take a functional approach to reviewing jury charges and not insist on perfection wasmandated by the Supreme Court of Canada in R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314 at para. 62, in a statementthat has been repeated on numerous occasions by many courts, including this court.

I agree that a court of appeal must not parse everyword, look for minute errors or insist on the use of a particular formula, sequence or specific words. The appellate tribunal is to look atthe words in the context of the charge as a whole, as it is the overall effect of the charge that matters. See, for example, R. v. Daley, 2007SCC 53 at paras. 30-31, [2007] 3 S.C.R. 523; R. v. Coutu (K.S.), 2008 MBCA 151 at para. 98, 231 Man.R. (2d) 275; and R. v.

Korski(C.T.), 2009 MBCA 37, 236 Man.R. (2d) 259. (ii) Reviewing the Evidence 92 Much has been written about the trial judge’s obligation to explain how to relate the evidence to the law. The seminalcase setting out this obligation is Azoulay v. The Queen, (SCC), [1952] 2 S.C.R. 495, in which Taschereau J. (as he thenwas), for the majority, stated (at pp. 497-98): ….

The rule which has been laid down, and consistently followed is that in a jury trial the presiding judge must, except in rare caseswhere it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that theymay appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them. (Spencer v. AlaskaPa[c]kers [(1904), (SCC), 35 S.C.R. 362]). As Kellock J.A. (as he then was) said in Rex v.

Stephen et al [ (ON CA), [1944] O.R. 339 at 352]: “It is not sufficient that the whole evidence be left to the jury in bulk for valuation.” The pivotalquestions upon which the defence stands must be clearly presented to the jury’s mind. Of course, it is not necessary that the trial judgeshould review all the facts, and that his charge be a minute record of the evidence adduced, …. 93 The scope of this requirement was reviewed by Fraser C.J.A. in R. v. Karaibrahimovic (J.J.), 2002 ABCA 102, 303A.R. 181.

Speaking for the majority, she noted the above principle in Azoulay, referred to several cases in which that principle had beenapplied, and concluded as follows (at paras. 36-37): Further, even where a trial judge has reviewed the evidence, an appellate court may still take the position that, given the breadth of theAzoulay rule, the review was not thorough or specific enough. And yet inadequate review of the evidence should not be used as an opensesame key to a new trial simply because an appellate court disagrees with the conclusion of the trier of fact.

Nevertheless, the breach of the Azoulay rule will almost invariably lead to a new trial. …. 94 Further on, she stated as follows (at para. 47):

However, whatever reservations there may be about the present jury system in Canada, the law on the need for trial judges to review theevidence and relate it to the issues in dispute, even in truncated form, remains binding on Canadian courts: R. v. Malott, [ (SCC), [1998] 1 S.C.R. 123]; R. v. Jacquard, supra. Therefore, a trial judge’s failure to review the evidence in a jury trial in thecontext of the live issues constitutes grounds for appellate reversal unless the case falls into the “rare” category where the review wouldbe “needless”. …. 95 Her decision was adopted by this court in Coutu at para. 177.

See also this court’s decision in R. v. Prince (C.L.), 2007MBCA 15 at paras. 49-68, 212 Man.R. (2d) 204. 96 I can explain this duty no better than did Freedman J.A., for this court, in Prince, wherein he stated as follows (at para.64): The judge must ensure that the jury has an opportunity to understand how the evidence relates to the applicable law.

In this case, thatmeans that the judge had to identify the evidence, or at least the most important parts of it, that spoke to the issue of the intent of theaccused, not only in relation to murder but also to manslaughter, in order to ensure that the jury clearly understood that manslaughter wasa viable outcome. ….

The jury is entitled to know, and the accused is entitled to a jury that understands, how the evidence relates to thelegal issues. [emphasis added] (iii) Judge’s Duty to Review Alternative Bases of Defence 97 It is clear from the case law that a trial judge has an obligation to put to the jury all alternative bases of defence forwhich a realistic factual basis exists, whether or not raised by the defence. This principle was explained by Viscount Simon L.C. in aunanimous decision in Mancini v.

Director of Public Prosecutions, [1942] A.C. 1 (H.L. (E.)), as follows (at pp. 7-8): Although the appellant’s case at the trial was in substance that he had been compelled to use his weapon in necessary self-defence – adefence which, if it had been accepted by the jury, would have resulted in his complete acquittal – it was undoubtedly the duty of thejudge, in summing up to the jury, to deal adequately with any other view of the facts which might reasonably arise out of the evidencegiven, and which would reduce the crime from murder to manslaughter.

The fact that a defending counsel does not stress an alternativecase before the jury (which he may well feel it difficult to do without prejudicing the main defence) does not relieve the judge from theduty of directing the jury to consider the alternative, if there is material before the jury which would justify a direction that they shouldconsider it. Thus, in Rex v.

Hopper [[1915] 2 K.B. 431 (C.C.A.)], at a trial for murder the prisoner’s counsel relied substantially on thedefence that the killing was accidental, but Lord Reading C.J., in delivering the judgment of the Court of Criminal Appeal, said [at p.435]: “We do not assent to the suggestion that as the defence throughout the trial was accident, the judge was justified in not putting thequestion as to manslaughter.

Whatever the line of defence adopted by counsel at the trial of the prisoner, we are of opinion that it is forthe judge to put such questions as appear to him properly to arise upon the evidence, even although counsel may not have raised somequestion himself.

In this case, it may be that the difficulty of presenting the alternative defences of accident and manslaughter may haveactuated counsel in saying very little about manslaughter, but if we come to the conclusion, as we do, that there was some evidence – wesay no more than that – upon which a question ought to have been left to the jury as to the crime being manslaughter only, we think thatthis verdict of murder cannot stand.” [emphasis added] 98 The same position was set out by the Supreme Court of Canada in Wu v. The King, (SCC), [1934]S.C.R. 609.

Lamont J. (as he then was), in a unanimous decision, stated as follows (at pp. 616-17): There is no doubt that in the trial court an accused person is ordinarily entitled to rely upon all alternative defences for which afoundation of fact appears in the record, and, in my opinion, it makes no difference whether the evidence which forms that foundationhas been given by the witnesses for the Crown or for the accused, or otherwise. What is essential is, that the record contains evidencewhich, if accepted by the jury, would constitute a valid defence to the charge laid.

Where such evidence appears it is the duty of the trialjudge to call the attention of the jury to that evidence and instruct them in reference thereto. …. The rule, therefore, that an accusedperson at trial is entitled to have the jury pass upon all his alternative defences is limited to the defences of which a foundation of factappears in the record. …. 99 Lamont J. continued by noting the following exception to that rule (at p. 617):

…. Even then the rule, in my opinion, is not without exception, and one exception is, that it has no application where the accused, by thedefence which he sets up at the trial, has negatived the alternative defence for which he afterwards seeks a new trial. . . . . . …. The defence that the accused was in Victoria at the time of the shooting was not only inconsistent with, but negatived the defencenow sought to be set up.

Under these circumstances I fail to see how any duty could rest on the trial judge to instruct the jury to consideran alternative defence which the accused, by the defence he did set up, declared had no foundation in fact. See also R. v. Squire, (SCC), [1977] 2 S.C.R. 13; R. v. Faid, (SCC), [1983] 1 S.C.R. 265 at 274; R. v.Parnell (1983), (ON CA), 9 C.C.C. (3d) 353 at 364 (Ont. C.A.); R. v. Bernier (1993), (QC CA), 20C.R. (4th) 353 at 360-62 (Qc. C.A.); R. v. Wobbes, 2008 ONCA 567, 235 C.C.C. (3d) 561; and Von Starck v.

The Queen, [2000] UKPC5 at para. 12, [2000] 1 W.L.R. 1270 at 1275. 100 This issue was considered by the Ontario Court of Appeal in R. v. Murray (1994), (ON CA), 20 O.R.(3d) 156. In that case, defence counsel told the trial judge during the precharge conference that he did not seek and did not want a chargeon intoxication. Osborne J.A., in a unanimous decision, stated the law to be as follows (at p. 171): …. As I have said, there was an evidentiary basis for charging the jury on intoxication. The appellant’s ingestion of alcohol wasrelevant to the issue whether he formed the intent required for murder.

Although I do not view intoxication as a “defence” it is,nonetheless, an aspect of the evidence which, along with other evidence going to the issue of intent, should have been left to the jury withthe appropriate guidance as generally set out in R. v. MacKinlay (1986), (ON CA), 28 C.C.C. (3d) 306, 53 C.R. (3d)105 (Ont. C.A.).

In my opinion, the fact that the appellant’s trial counsel took the position he did should be taken into account inassessing the gravity of the trial judge’s failure to charge the jury on intoxication, but in these circumstances I do not think it should beviewed as being determinative: see R. v. Chambers, (SCC), [1990] 2 S.C.R. 1293, 59 C.C.C. (3d) 321. [emphasis added] 101 This principle has been stated by the Supreme Court of Canada more recently in R. v. Cinous, 2002 SCC 29, [2002] 2S.C.R. 3.

McLachlin C.J.C. and Bastarache J., for the majority, stated as follows (at paras. 51-52): The basic requirement of an evidential foundation for defences gives rise to two well-established principles. First, a trial judge must putto the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused. Where there is an air ofreality to a defence, it should go to the jury. Second, a trial judge has a positive duty to keep from the jury defences lacking an evidentialfoundation. ….

It is trite law that the air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive. …. [emphasis added] 102 The test adopted by the majority in Cinous is that of an “air of reality,” which was defined as follows (at para. 82): We conclude that the authorities after Pappajohn [ (SCC), [1980] 2 S.C.R. 120] continue to support a two-prongedquestion for determining whether there is an evidential foundation warranting that a defence be put to a jury.

The question remainswhether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to betrue. The second part of this question can be rendered by asking whether the evidence put forth is reasonably capable of supporting theinferences required to acquit the accused. This is the current state of the law, uniformly applicable to all defences. 103 Finally, this issue has been dealt with by the Supreme Court of Canada most recently in R. v. Pickton, 2010 SCC 32,

[2010] 2 S.C.R. 198. Charron J., speaking for the majority, stated as follows (at para. 27): Regardless of counsel’s joint position, the trial judge should not have agreed to include this instruction in the charge. Discussionsbetween counsel and the trial judge about the content of the charge can provide invaluable assistance in crafting correct jury instructionsand, as such, should be encouraged. However, it is the trial judge’s role to instruct the jury on all relevant questions of law that arise onthe evidence.

In some cases, these instructions will not accord with the position advanced by counsel for the Crown or the defence. See also R. v. Kent, Sinclair and Gode (1986), (MB CA), 40 Man.R. (2d) 160 at paras. 4-9 (C.A.). 104 While reference is often made to “defences,” it is clear that the same principles apply whether the defence at issue is atrue defence or a factual situation based on the evidence or lack of evidence which, if believed, would raise a reasonable doubt regardingan element of an offence.

Provocation and self-defence are common examples of the former, while intoxication and mental illness thatare not sufficient to constitute true defences, but could raise a reasonable doubt about the ability to form the intent necessary for theoffence, are examples of the latter. 105 In this case, the issue is not whether the trial judge charged, or adequately charged, on a defence, but rather on a factualsituation arising from the evidence and lack of evidence which, if believed, would raise a reasonable doubt regarding certain essentialelements of the offence of sexual assault with a weapon. (iv) Use of Pattern Jury Charges and Charging on Non-Issues 106 The organization of a jury charge is left largely to the trial judge, and it is clear that reasonable people may, and oftenwill, disagree on how best to formulate a charge.

However it is done, it is important to keep the charge focussed on the live issues andnot to clutter it with instructions on matters that are not at issue, thereby risking confusion on the part of the jurors. This was expressedby the Ontario Court of Appeal in Murray, wherein Osborne J.A. stated that “[r]eferences in a charge to non-issues will tend to deflectthe jury from considering the real issues raised by the evidence” (at p. 168). 107 This issue, and that of the use of pattern jury charges, was again addressed by the Ontario Court o

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