R. v. Henderson (W.E.), 2012 MBCA 93

Citation: R. v. Henderson (W.E.), 2012 MBCA 93 Date: 20121010 Docket: AR 09-30-07269 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton Mr. Justice Richard J. Chartier BETWEEN : ) M. D. Glazer HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) C. A. Vanderhooft, ) A. Y. Kotler and - and - ) E. Szach ) for the Respondent ) WILLIAM EDWARD HENDERSON ) Appeal heard: ) October 24 and 25, 2011 (Accused) Appellant ) ) Judgment delivered: ) October 10, 2012 CHARTIER J.A. 1 The accused appeals his conviction for first degree murder.

He has raised 23 grounds of appeal. He also moves for an order to admit fresh evidence pursuant to s. 683(1) of the Criminal Code (the Code ). Background 2 On August 18, 2002, Frehley Glen McKay (the victim) was shot twice in the head outside a house party. The first shot knocked him to the ground, rendering him helpless. The shooter then stood over the victim and fired a second shot, point blank into his head, killing him. 3 Earlier on the night of the shooting, the victim and his girlfriend, Leanne Valiquette, had attended the house party. They stayed in the front yard of the house.

At one point, they started arguing. Other than Karen Hart, a friend of the couple, no one else was with them in the front yard. After about an hour, while the argument was going on, the victim was walking around the front yard. That is when Ms Hart noticed another man (the shooter) walking back and forth in the front yard. 4 Ms Hart said the two men passed each other several times. The victim yelled something to the shooter. She then observed the shooter pull out and point a shiny object towards the victim. This object turned out to be a handgun.

As the victim was walking towards the shooter, she heard two clicks (the gun had misfired) and then saw sparks come out the end of the gun. The victim fell to the ground. She described the gun as an “old western gun” with a long, skinny barrel. 5 When Ms Valiquette heard the bang of the shot, she ran towards the victim. Before she could attend to him, the shooter stood over the victim and shot him in the head as he lay on the ground. At that point she was relatively close to the shooter and recognized him as the man she had seen earlier that evening. The shooter then ran off through the backyard of the house.

Her description of the gun was limited, saying it was not a big gun, that it was a handgun. 6 Ms Hart and Ms Valiquette both testified that the shooter was the accused. 7 Ms Hart was a casual acquaintance of the accused and had known him for a number of years. She knew him as

Willie. She confirmed that he was aboriginal and that he was wearing a white T-shirt with dark pants and oval-shaped glasses on the night of the murder. The photo she selected from the police photo pack (as the man who was the shooter) was the photo of the accused. From the time of the murder to the time Ms Hart gave her statement to police and selected the accused from the photo pack (approximately ten hours), she had not discussed the shooting with anyone. 8 Ms Valiquette had only met the accused earlier on the night of the shooting, when she had attended a nightclub with Ms Hart, the victim and other friends.

She had noticed the accused because he had become involved in an argument with her boyfriend, the victim. She saw the victim step “right up to [the accused’s] face” and push him. The accused did not respond to the push. She was approximately seven feet away from the arguing pair. The dispute lasted roughly one minute, after which the accused and an accompanying male friend left the nightclub. Ms Valiquette described the accused as being aboriginal, with a round face and wearing glasses. She said the accused was wearing a white T-shirt and dark denim jeans.

Like Ms Hart, Ms Valiquette gave a statement, chose the photo of the accused from the police photo pack and had not had occasion to discuss the murder incident with anyone from the time of the shooting to the time she gave her police statement and reviewed the photos (again, approximately ten hours). 9 Melvina Ballantyne, while never having been formally introduced to the accused, knew him from the neighbourhood. She too had been at the nightclub on the night of the shooting and had seen the accused there. She noted that he was wearing a white T-shirt and that he was also wearing oval-shaped glasses.

After leaving the nightclub, her boyfriend drove her and some friends to the house party to drop off one of their friends. Her boyfriend and this friend left the car, which was now parked in the back lane behind the party house. 10 At one point, Ms Ballantyne saw that someone came out from a yard a couple of houses down and walked up to her car. She recognized that person as the accused, and noted that he was still wearing the same clothes as from the nightclub. The accused asked who had been driving the car. No one answered.

From her front passenger seat vantage point she could see the accused’s face and upper body. She found him to be nervous and jittery. She noticed that he was holding an object with his left hand under his T-shirt. The accused then walked in the direction of the yard of the party house. 11 Less than a minute later, she heard gunshots. People were screaming and fleeing out the backyard. Ms Ballantyne testified that one of them was the accused, who ran up to her car. She also testified that, with gun in hand, the accused attempted to open the car door. It was locked. The accused then ran off.

Ms Ballantyne noted the gun was a “silver western-style gun” with a long, skinny barrel. When she was shown a police photo pack, she identified the man with the gun as the accused. 12 A revolver matching the description given by Ms Hart and Ms Ballantyne was located in the yard next to the party house. A swab taken from the butt of the handgun contained the victim’s DNA. The accused’s shoes were seized and found to contain the victim’s blood and DNA. A speckling of fine red dots, sometimes called powder tattooing, was found near one of the entrance wounds in the victim’s head.

An expert in forensic pathology testified that the presence of these fine dots was evidence that the shooter’s gun was no more than three feet away from the victim at the time it was fired. 13 As can be seen from the above, the evidence against the accused was very strong. The accused challenged much of the Crown’s evidence through extensive cross-examination and by testifying. He was the only witness for the defence. While he acknowledged his presence at the nightclub earlier that evening, he denied attending the house party and having any involvement in the murder.

He explained the presence of the victim’s blood and DNA on his shoes, stating that, after he had left the nightclub, he happened upon the victim, who was lying on the ground after a fight with others. He decided to kick the victim in the face as retribution for the incident between the two earlier that evening. 14 The jury found the accused guilty of first degree murder. The accused now appeals against conviction. 15 Before considering the appeal proper, I will consider the fresh evidence motion as, in my view, if the new evidence is admitted, a new trial would have to be ordered.

Fresh Evidence Motion 16 The fresh evidence the accused seeks to introduce is a sworn videotaped statement from a person claiming to have witnessed the murder (the Declarant). That statement came about in a most unusual way, and years after the 2002 murder. The accused was convicted and sentenced on November 19, 2009. On January 25, 2010, seven and one-half years after the murder, and almost ten weeks after the sentencing, the Declarant contacted the Winnipeg Free Press after seeing “an

article on-line” about the accused’s first degree murder conviction, apparently with concerns about the verdict. After contacting the Winnipeg Free Press, he was directed to the accused’s counsel. On January 29, 2010, the Declarant provided a sworn videotaped statement to an investigator hired by counsel for the accused. 17 When the motion first came before this court on June 7, 2011, the Crown requested and was given permission to cross- examine the Declarant. An adjournment was granted for that purpose. The Declarant was commanded to appear on October 24, 2011, by a properly served subpoena.

Two days had been set aside for the fresh evidence motion and the hearing of the appeal on its merits. On the return date, the Declarant failed to appear. The hearing of the motion was stood down until the end of the two-day appeal hearing to allow the Declarant more time to attend. He never did attend, nor did he attempt to contact anyone about his whereabouts.

The fresh evidence motion continued in his absence and without the Crown having had the opportunity to cross-examine him. 18 On November 3, 2011, ten days after the return date on his subpoena, the Declarant attended to the office of the registrar of this court. He advised that he wished to make himself available for cross-examination. He was informed that the fresh evidence hearing proceeded in his absence. He was also told that a warrant had not issued for his failure to appear. The Declarant was asked to provide an explanation for his absence.

He said he had been unable to attend because he had been hospitalized at the time of the fresh evidence hearing. The Declarant was also asked to provide his address and telephone number in case it was necessary to contact him. As he was uncomfortable leaving this information with the court, he provided his mother’s contact information. The registrar’s office then contacted the accused’s counsel, as well as Crown counsel, to advise them of these new developments.

19 On November 7, 2011, given the explanation provided by the Declarant, counsel for the accused requested acontinuation of the fresh evidence motion. Crown counsel was opposed. On November 16, 2011, our registrar informed counsel that thepanel would not consider reconvening unless counsel for the accused provided the Crown with the Declarant’s current address forservice of any subpoena, as well as his recent hospitalization records. Counsel was given two weeks to do so. 20 On November 22, 2011, counsel for the accused requested a one and one-half month extension.

He was advised thatthe panel was not inclined to grant the request and that this matter would proceed in its normal course. He was also informed that shouldthe requested information become available prior to the release of our decision, it was always open to him to ask the panel to considerreconvening. 21 On November 28, 2011, counsel for the accused filed a notice of motion requesting that a single judge of this courtissue a third party subpoena for documents which may shed light on the Declarant’s current address. I was assigned to hear the motion.

On November 30, 2011, minutes before the hearing commenced, the Declarant attended. At the hearing, he provided his address to bothcounsel and advised that, while he had not been in the hospital on the day he had been commanded to attend court, he had indeed beenhospitalized shortly before and was still recovering on the day in question. The Declarant also agreed to sign a hospital waiver formallowing the hospital to release his hospital attendance records to the accused’s counsel. 22 On December 8, 2011, the Declarant’s hospital records were provided.

Contrary to what he had previously indicated,the records showed that the Declarant had not been hospitalized at or around the time he had been commanded to appear in court. In fact,his last attendance to the hospital had been two months earlier, when he visited the emergency department. While no explanation wasgiven for the Declarant’s non-attendance on the subpoena return date, counsel for the accused did advise that the Declarant had told himabout safety concerns arising from his decision to come forward and testify. 23 Counsel for the accused again asked for a continuation of the fresh evidence hearing.

Crown counsel again opposedthe request. In light of the exceptional circumstances involved in this matter (that the accused was convicted of first degree murder andthat the Declarant had now attended to the courthouse twice since the October hearing), the panel agreed to reconvene to allow theCrown to cross-examine him. A continuation hearing was set five days later, on December 21, 2011. 24 On the date fixed for the hearing, the Declarant again failed to attend. The Crown advised that it had attemptedunsuccessfully to serve the Declarant with a subpoena.

We were informed that the police had attended his home and left a note on thedoor. They had also spoken to his mother and left a message with his brother. Counsel for the accused advised that he had sent a letterto the Declarant, by ordinary mail, advising him of the date and that he had also spoken to the Declarant’s mother a number of timesabout the upcoming court date.

As a result of the non-attendance, the fresh evidence continuation hearing was brought to an end. 25 For the sake of completeness, I must add that the next day, December 22, 2011, counsel for the accused wrote to ourregistrar to advise that during the evening of December 21, he was contacted by the Declarant, who informed him that: 1) he had justbeen told by his mother that the police were looking for him; 2) he had not been made aware of the 1:00 p.m. hearing earlier that day;and 3) he was still willing to testify.

As mentioned above, the fresh evidence motion hearing was brought to an end and this court has notsince reconvened. 26 At the outset, two points must be made with respect to any fresh evidence analysis. One is in regard to theadmissibility requirement. The evidence sought to be adduced must be admissible evidence (see R. v. O’Brien, (SCC),[1978] 1 S.C.R. 591 at 602). If that prerequisite has not been met, there is no need to go further. 27 The second point is with respect to what has been described by McIntyre J. in Palmer et al. v.

The Queen, (SCC), [1980] 1 S.C.R. 759, as the “overriding consideration” in any s. 683 analysis. He made clear that it is “the interests of justice”which shall govern whether the fresh evidence will be admitted (at p. 775): Parliament has given the Court of Appeal a broad discretion in s. [683](1)(d).

The overriding consideration must be in the words of theenactment “the interests of justice” and it would not serve the interests of justice to permit any witness by simply repudiating or changinghis trial evidence to reopen trials at will to the general detriment of the administration of justice. …. 28 Those “interests” take in both finality concerns with respect to the trial process and concerns that justice should be donein an individual case (see R. v. 1275729 Ontario Inc. et al. (2005), (ON CA), 205 O.A.C. 359 at para. 20). See aswell, R. v. W.R.B., 2010 MBCA 116 at para. 4, and R. v.

G.D.B., 2000 SCC 22 at para. 19, [2000] 1 S.C.R. 520, where the SupremeCourt of Canada adopted the reasoning of Doherty J.A. in R. v. McBirnie (P.S.) (1992), (ON CA), 59 O.A.C. 1 (atpara. 34): .... The interests of justice referred to in s. 683 of the Criminal Code encompass not only an accused’s interest in having his or her guiltdetermined upon all of the available evidence, but also the integrity of the criminal process. Finality and order are essential to thatintegrity.

The criminal justice system is arranged so that the trial will provide the opportunity to the parties to present their respectivecases and the appeal will provide the opportunity to challenge the correctness of what happened at the trial. Section 683(1)(

d) of theCode recognizes that the appellate function can be expanded in exceptional cases, but it cannot be that the appellate process should beused routinely to augment the trial record. Were it otherwise, the finality of the trial process would be lost and cases would be retried onappeal whenever more evidence was secured by a party prior to the hearing of the appeal. For this reason, the exceptional nature of theadmission of “fresh” evidence on appeal has been stressed: R. v. McMartin, [ (SCC), [1964] S.C.R. 484] at p. 490 ….

[emphasis added] 29 What can be taken from the above is that the admission of fresh evidence on appeal can be considered, but only in exceptional circumstances. See also, R. v. Riley (M.W.) , 2011 NSCA 52 at para. 19 , 303 N.S.R. (2d) 321 . This court’s power to permit the introduction of such evidence is an exercise in judicial discretion and involves the weighing and balancing of different criteria. They are well known and set out in Palmer ( at p. 775):

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases ….

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. 30 Returning to the case at hand, t he crux of the Declarant’s statement is that he was there, seven and one-half years earlier, on the night of the murder; that he witnessed the shooting; and that the shooter was not the accused. The fresh evidence, if admitted, would undermine the description of the shooter provided by the Crown witnesses who had identified the accused as the shooter.

T he Declarant says that there was “no way anybody could have seen the [shooter]’s face” because “he had his shirt pulled over or there was something on his face” and “it was just dark. You couldn’t see nothing.” T here can be no question that the Declarant’s evidence, if it had been tendered at trial, would qualify as admissible evidence and would, therefore, meet the prerequisite admissibility criterion on any fresh evidence motion as per O’Brien . 31 This brings me to the four Palmer criteria. In my view, the admissibility of this fresh evidence turns on the credibility criterion.

It is well understood that this criterion relates to threshold, and not ultimate credibility. As was stated in Palmer , when the fresh evidence raises issues of credibility, this court must assess the credibility to determine whether it meets the required credibility threshold of whether the “evidence [is] possessed of sufficient credibility that it might reasonably [be] believed by the trier of fact” (at p. 776). This analysis necessarily involves a certain weighing or qualitative assessment of the fresh evidence (see R. v.

Reeve (M.) , 2008 ONCA 340 at para. 72 , 236 O.A.C. 92, and Truscott, Re , 2007 ONCA 575 at para. 100 , 226 O.A.C. 200). 32 The threshold credibility analysis will generally involve a review of the fresh evidence to evaluate whether the testimony was given in an honest, forthright way, and whether the evidence of the witness was shaken by cross-examination.

In determining whether the threshold has been met, this court will consider the Declarant’s statement and the circumstances surrounding it (such as the “when” and the “why” it was given), as well as any cross-examination or, in this case, the lack of it. 33 The accused argues that the Declarant’s statement has a ring of truth to it. He says that the statement contains information not published in newspaper articles. He submits that the Declarant knows these unpublished facts because he was there. He gives two examples.

First, the newspaper articles did not report that, at the time of the shooting, the victim had said “What the fuck.” Second, the exact location of the victim, when he uttered those words, was never published. The accused asserts that the Declarant’s correct statement as to those spoken words and where the victim was when he voiced them is consistent with the evidence given at trial. 34 The accused also contends that, because the Declarant’s statement was given under oath and videotaped, this court is better placed to determine threshold credibility than were it not so given.

More will be said on this point below. 35 For its part, t he Crown argues that the Declarant’s statement does not meet the credibility threshold. It says that the Declarant’s criminal record, criminal background and criminal lifestyle should raise serious credibility concerns.

It points first to the Declarant’s criminal record with multiple convictions, and second to the Declarant’s statement in which he professes to have been a gun- carrying gang member who has been involved in assaults, kidnappings, shootings and drug trafficking. 36 The Crown also emphasizes the fact that the Declarant only came forward in 2010 as a witness to the 2002 murder and that he waited close to ten weeks after the conviction before contacting counsel for the accused. It submits that these delays in coming forward are significant and suspect and should set alarm bells ringing.

Finally, the Crown submits that the Declarant’s statement simply does not ring true. It points to inconsistencies which, it says, should raise serious concern as to his credibility. 37 I will at the outset acknowledge and accept the accused’s contention that a court is better positioned to conduct its credibility threshold analysis when it has before it a sworn videotaped statement as opposed to simply a sworn affidavit. The reason for this is clear: in addition to being able to read the words, a court is also able to hear intonation and to see demeanour.

However, that enhanced ability to assess credibility does not mean that the Declarant’s statement has automatically met the credibility threshold. 38 Prior to conducting the credibility threshold analysis, I will deal with the Declarant’s failure to attend for cross-

examination. When fresh evidence is, as in this case, a statement or an affidavit, the party opposed to its admission may or may not attempt to cross-examine a declarant. When a declarant’s credibility is not a concern, there generally would be no reason to test a declarant’s credibility through cross-examination. When it is a concern, a request to cross-examine is often made.

Whether the fresh evidence is challenged or not by cross-examination, a court is entitled to accept all, part or none of that evidence. 39 The question now becomes, what can be made of the fact that the Crown has been unable to test the Declarant’s statement through cross-examination because of the Declarant’s failure to attend? This question becomes important because cross- examination is inextricably linked to credibility and that criterion is of significant concern in this case. As a result of the Declarant’s failure to attend for cross-examination, a valuable credibility assessment tool has been lost.

As explained by the Supreme Court of Canada in R v. Lyttle , 2004 SCC 5 , [2004] 1 S.C.R. 193, cross-examination is “a faithful friend in the pursuit of justice and an indispensable ally in the search for truth” (at para. 1). Not only does cross-examination allow a party to test the credibility of a witness, it also provides a court with invaluable information to assist it in completing the vital task of assessing the witness’s credibility. Sometimes, the cross-examination will discredit a witness, while other times that person’s credibility will be buttressed.

Whatever the outcome, a court will always be better equipped to assess credibility once cross-examination has taken place. 40 As already mentioned, the explanation for the Declarant’s failure to comply with the subpoena (his hospitalization) has proven to be false, and to this day remains unexplained. Counsel for the accused has offered that he may not have attended through fear for his safety, yet I note that this has not prevented him from attending the courthouse on two other occasions.

The fact remains, through no fault of its own, the Crown has not been able to cross-examine the Declarant and will, therefore, be unable to challenge him on what he said in his statement. 41 In this case, after offering a sworn videotaped statement, the Declarant has failed to attend for cross-examination and then lied as to the reason for his non-attendance. The responsibility for the inability to cross-examine lies squarely at the feet of the Declarant.

Given the Declarant’s failure to attend for cross-examination, there can be no doubt that his statement cannot be viewed in the same light as if it had remained unchallenged by the Crown.

In addition, while the Crown’s inability to test the Declarant’s statement does not mean that the Palmer credibility criteria cannot be met, I am of the view that in the circumstances of this case, significantly less weight or credit must be given to any part of his statement which is inexplicably inconsistent with the other evidence adduced at trial. 42 The discovery of inconsistencies does not in and of itself lead to the conclusion that the evidence is not sufficiently credible. Quite the contrary. Inconsistencies with the evidence of Crown witnesses could cast doubt on that Crown evidence.

However, inconsistencies on uncontroversial yet fundamental matters can bring into question the veracity of the statement. In this case there are a number of these types of inconsistencies: 1) On whether the doors to the house were locked: the Declarant says the doors to the house were locked, causing the people who had attended there to remain outside.

This is inconsistent with the clear evidence that, at the time of the shooting, there was a party going on in the house and that people were entering or exiting the house. 2) On the timing of the shooting: the Declarant says that he attended to the house immediately after leaving the bar and that when he and others got there, they waited outside as the doors were locked. He says the shooting occurred within ten minutes of his arrival.

This is inconsistent with the clear evidence at trial that the shooting occurred over an hour after the party had started. 3) On the number of people in the front yard at the time of the shooting: the Declarant says that, other than the shooter, there were “quite a few people … actually, maybe six or seven people” in the front yard at or around the time of the shooting.

This is inconsistent with the clear evidence that there were only three people in the front yard other than the accused: Ms Hart, Ms Valiquette and the victim. 4) On whether the victim was robbed: the Declarant says he was told that the victim was robbed of his gold chain and bracelet after he was shot.

Though this is clearly hearsay, the fact remains this is inconsistent with the evidence that the victim was still wearing his gold bracelet when he died, and that he had given his other jewelry to two people to hold on to earlier in the evening. 5) On the assertion that the shooter was unidentifiable: the Declarant says that “there was no way anybody could have seen the [shooter]’s face” because it was covered by a T-shirt or something similar, and it was dark.

Yet, despite it not being possible to identify the shooter, he insists that “there is no way [the accused] could have done it.” 6) On what happened outside the bar: the Declarant says that during the fight outside the bar, he saw the accused trying to help the victim. This is inconsistent with the accused’s own evidence when he explained that the reason he had the victim’s blood on his shoes was because he had kicked him in the head. 43 As can be seen, t he evidence contained in the Declarant’s statement is not consistent with the evidence given by other witnesses, including the accused himself.

As mentioned previously, that is far from being determinative of the credibility threshold issue in and of itself. However, when the inconsistencies relate to a number of peripheral yet important discrepancies, like 1) to 3) above, they bring into question whether the Declarant was even at the house when he said he was. His evidence is inconsistent with the evidence pertaining to clear, uncontroverted evidence which, while unimportant to the main witnessed event, would be known to any person who had been there.

In my view, it would be unlikely that a truthful witness could be mistaken on such basic background facts relating to his surroundings on the evening of the shooting. 44 That a considerable part of the Declarant’s statement as it related to the shooting proper (what was said by the victim, where the victim was when fatally shot and the size of the gun used by the shooter) was consistent with the evidence at trial does not, in my view, sufficiently tip the credibility threshold scale to counter the above-mentioned inconsistencies.

The Declarant could easily have obtained the information surrounding the shooting through other means. The fact remains that the evidence surrounding peripheral matters would have been known by the Declarant had he been present for the length of time he said he was. 45 In my view, the above inconsistencies, when coupled with the Declarant’s unsavoury background, the timing of his involvement (some seven and one-half years after the shooting), and his failure to attend for cross-examination, all raise significant

credibility concerns. In the end, even with the added benefit of the sworn videotaped statement, I have not been satisfied that the fresh evidence is sufficiently credible to meet the required threshold: that it is reasonably capable of belief.

To use and paraphrase the words of McIntyre J. in Palmer at p. 775: in my view, it would not serve the interests of justice (which include bringing finality to the process) to permit the Declarant, in light of the above-mentioned concerns, to reopen this trial to the general detriment of the administration of justice. 46 I would, therefore, dismiss the motion and not admit the fresh evidence. Issues 47 This trial took 32 court days (13 pre-trial motions days and 19 actual trial days) in the Court of Queen’s Bench, spanning a 22-month period. The first pre-trial motion was heard on January 14, 2008.

The judge delivered his last pre-trial ruling on October 27, 2008. The jury trial commenced on October 19, 2009, and ended with the jury verdict on November 19, 2009. During these proceedings, the judge was called upon to make at least 13 rulings on substantive issues. This included four pre-trial motions dealing with the voluntariness of the accused’s statement, the validity of the search and seizure, the suitability of the photo pack and whether to allow an expert to testify on the frailties of eyewitness identification.

The other nine rulings occurred during the trial proper. 48 T he accused has raised no less than 23 grounds of appeal. In essence, he has appealed all of the above decisions which were not favourable to him. As with all appeals, there are significant restrictions imposed on the parties in terms of the length of the factum.

To circumvent these restrictions, counsel for the accused inserted a phrase numerous times in his factum: for example, at ground 2: “The Appellant relies on his trial submission (Volume 9 p. 3 - 40, 45 - 80, Volume 10 p. 12 - 72) and case law referred to at that time.” He then listed 25 cases, with no mention of the particular paragraph or paragraphs he relies on. Similar wording can be found with respect to nine other grounds.

By proceeding in this fashion, counsel is in effect doing indirectly what he is not allowed to do directly: greatly exceeding the allowable pages for written argument by appended submissions. Need we remind that the Court of Appeal Rules clearly state at Rule 29 that the factum will consist of four parts, each setting out “a concise overview,” “a concise

summary of the facts,” “a concise statement identifying the issues in the appeal and the appellant’s position on each issue,” and “a concise statement of the argument … with particular reference to … the tab number and page in the case book for the authorities relied on” (emphasis added). What counsel for the accused presented was anything but concise.

Not only did it not conform to our rules, it was inappropriate and not particularly helpful. 49 Moreover, the practical effect of raising numerous grounds of appeal will generally result in less expansive arguments (both oral and written) and will almost always deprive the court of the benefit of a more comprehensive argument on the significant issues.

Since the Crown is required to abide by the same restrictions, the court will also almost always of necessity receive from it a less developed argument than would otherwise be the case had fewer grounds been argued by the accused. 50 Courts expect counsel to be of assistance in the appellate process. They expect counsel not to waste the court’s valuable resources by simply dumping the appeal on the court’s lap.

Counsel are expected to have sufficient confidence to prioritize their arguments, to separate the wheat from the chaff and to provide fully developed arguments on what should be the real points for appellate review. Not only is this in the best interests of their clients; it is in the best interests of the administration of justice. 51 While there is no ceiling on the number of grounds an appellant may raise, appellate courts, when faced with a shotgun approach to appellate advocacy, must still focus on those issues which have real substance.

In doing so, a court will ordinarily be assisted by an appellant’s views as to the strength of any particular issue. This strength can sometimes be revealed in an appellant’s factum by the extent of the written submission on any particular ground. Unfortunately that is not apparent here. The accused’s factum essentially apportions each ground equally: for the most part a two to three paragraph allocation to each ground . 52 The accused did however elaborate his arguments in four areas.

They relate to the judge’s refusal to invalidate a search warrant, to declare a mistrial on a conflict of interest, to instruct on certain issues and to grant a directed verdict on first degree murder. 53 At the hearing, counsel for the accused was also invited to argue only those grounds which, in his view, had the most merit. Counsel chose to argue 13 grounds. 54 In my view, out of the accused’s avalanche of grounds, there are only five areas (which include the four issues mentioned above) that warrant consideration by this court.

They can be categorized as follows, whether: 1) the judge erred in finding that a search warrant was valid and that the running shoes were admissible evidence; 2) the judge erred

a) by refusing to order outside counsel to argue the conflict of interest motion; and

b) by not declaring a mistrial and refusing to order outside counsel after finding that a Crown attorney was in conflict; 3) the judge erred by failing

a) to give specific instructions on the frailties of eyewitness identification; and

b) to instruct with regard to the difference between inference and speculation; 4) the judge erred by dismissing the accused’s motion for a directed verdict on the charge of first degree murder; and 5) the verdict was unreasonable. 55 I am of the opinion that, as there is no substance to the other grounds, further comment is unnecessary. Analysis

I: Issues Surrounding the Validity of the Search Warrant 56 A four-day voir dire was held to determine the validity of a search at 427 Pacific Avenue. I

a) Background 57 Some background is required. 427 Pacific Avenue is the home of the accused’s mother. It also served as the residenceof the accused and his girlfriend (Elycia Doolan). The day after the shooting, the accused turned himself in to the police and providedinformational background that he was residing at that address. That same day, the police were directed to pick up the accused’s motherand the accused’s girlfriend and take them to their residence at 427 Pacific Avenue. They were concerned that others may seekretaliation against the accused and wanted to stay elsewhere.

They needed to gather their belongings, but were fearful to attend to thataddress. They requested that the police accompany them to their home to ensure their safety. 58 Sergeant Bradbury, together with Constable Leone and the two women, attended to 427 Pacific Avenue. When in thehome, Sgt. Bradbury followed Ms Doolan, who entered the bedroom she shared with the accused. He entered the bedroom to make sureno one was outside the bedroom window. When crossing the room to get to the window, he noticed a pair of running shoes thatappeared to have blood spots or smears on them.

He asked Ms Doolan who the shoes belonged to. She advised they belonged to theaccused. He also noticed other clothing around the room. At that point he sought the homeowner’s permission (the accused’s mother) tosearch the house without a warrant. She refused, saying “that’s up to [the accused], not me.” A marked police car was called to keepsurveillance on the house. The officers, along with the two women, then left the residence. 59 The police officers also tried to obtain the accused’s consent to a warrantless search. The accused refused to give hisconsent.

At that juncture, the officers applied for a search warrant. In the information to obtain the search warrant (the ITO), the policeincluded the information acquired during their earlier attendance at 427 Pacific Avenue. After obtaining the warrant, the police searched427 Pacific Avenue and seized, amongst other things, the accused’s running shoes. 60 At the end of the voir dire, the judge gave relatively brief reasons, indicating that “full reasons will follow.” Fullerreasons were never given. I

b) Adequacy of Reasons on Search Warrant Voir Dire Decision 61 Included in the accused’s search warrant ground of appeal is the assertion that the reasons are not adequate to allow forappellate review and that, as a result, the judge erred by failing to provide sufficient reasons. Let me deal briefly with this initial issue. An unfulfilled promise to provide fuller reasons does not lead in and of itself to reversible error. As was recently stated in R. v. Czibulka(L.), 2011 ONCA 82, 275 O.A.C. 64, in such situations, an appellate court will “assess whatever reasons have been delivered” (at para.40).

As was explained in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, “[a]n appeal lies from the judgment, not the reasons forjudgment” (at para. 4). The case at bar is not a situation where the judge gave no reasons. The issue here relates to sufficiency.

In R. v.Rocha (S.), 2009 MBCA 26, 236 Man.R. (2d) 213, this court summed up the principles surrounding the issue of whether reasons areadequate (at para. 31): As was recently stated by the Supreme Court of Canada, the reasons will be inadequate if they are found to be insufficient to fulfill theirpurpose “to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal” (see R. v.R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51 at para. 25).

Indetermining whether or not they fulfill their purpose, the reasons must not be reviewed in isolation or on a stand-alone basis, but ratherviewed in their entire context. This includes an appreciation of the live issues that were before the trial judge and the arguments ofcounsel on those issues. The adequacy of the reasons will be gauged using the contextual and functional approach. …. 62 I would not accede to this ground of appeal. I have read the reasons given. They cover three and one-half pages oftranscript.

In my view, the reasons, when read in their entire context, easily fulfill the threefold purpose mentioned above in R. v.R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, by giving the “why” or the basis for the ruling, by providing public accountability and bypermitting meaningful appellate review. I

c) Validity of the Search Warrant 63 I now turn to the issue of whether the judge erred in finding that the search warrant was valid. 64 In his reasons, the judge made certain determinations. He found that the police officers initially entered 427 PacificAvenue with the consent of the homeowner. He accepted the evidence of Sgt. Bradbury, and held that it was reasonable for the officerto have attended the accused’s room to check whether someone was outside the bedroom window.

He found that it was while attendingto that window to address safety concerns that the officer noticed the running shoes with what appeared to be blood on them.

However,he held that, when the officer then “looked at them closely” and asked whose shoes they were, it was at that point “the purpose for beingin the residence took on an element of evidence gathering through visual searching.” 65 The judge concluded that the warrantless visual search of the home had breached the accused’s s. 8 rights under theCanadian Charter of Rights and Freedoms (the Charter) because the police had failed to obtain the mother’s consent to search the housewithout a warrant.

With respect to the search warrant later obtained that day, the judge decided to excise certain information in the ITO,namely paras. 6, 7 and 8. Those paragraphs contained the information obtained as a result of the warrantless search and the informationtaken from the accused’s statement which the judge had earlier ruled to be inadmissible. However, the judge held that the searchwarrant ultimately obtained, even after excising certain information in the ITO, was valid. He then found that “the running shoes wereadmissible under Section 489(2) of the Code.” He also stated that “[b]ecause of the

Section 8 breach, however, an analysis under

Section 24(2) of the Charter is still required.” After completing his s. 24(2) analysis he refused to exclude the shoes as evidence. 66 The accused contends that the judge erred in four ways, namely, in finding that: first, it was reasonable for Sgt.Bradbury to have entered the bedroom; second, it was plainly visible that the running shoes appeared to have blood on them; third, afterexcising certain information, there was sufficient evidence to issue the warrant; and finally, the running shoes need not be excludedunder s. 24(2).

The Crown disagrees with the accused’s contentions and submits that the judge erred in holding that there was a s. 8breach during the initial visit to 427 Pacific Avenue. In light of my conclusions, I will assume, without deciding, that the judge did noterr on his s. 8 finding. 67 I would dismiss the first issue (the finding that it was reasonable for the officer to be in the bedroom) summarily. Thepolice had been invited into the house by the homeowner to address her safety concerns and were therefore lawfully in the home.

MsDoolan went into the bedroom she shared with the accused to collect her personal belongings. In my view, the officer needed to enterthat room in order to properly carry out his duty, namely, to check the window and clear that area of any threat (see R. v. Godoy, (SCC), [1999] 1 S.C.R. 311 at para. 22, and R. v. Farrah (D.), 2011 MBCA 49 at para. 50, 268 Man.R. (2d) 112). In thecircumstances, it was most certainly open to the judge to find that it was reasonable for the officer to have entered the room.

Thisfinding is owed deference, and I have not been persuaded of any error. 68 The second concern raised is not whether the running shoes were in plain sight, because they were clearly visible oncea person entered the bedroom. The issue is whether the judge erred in finding that it was plainly visible that the running shoes appearedto have blood on them. I have not been convinced that the judge committed any palpable and overriding error with respect to thisfinding. There were many items strewn about the floor of the room, especially near the window.

It is not surprising that the officerwould be looking downwards so as not to step on anything when he was making his way to the window. The judge found Sgt. Bradburyto be a credible witness and accepted his evidence. The officer testified that he observed the blood spots on the white running shoeswhen he made his way to the window to address safety concerns. As the Supreme Court of Canada explained in R. v. Law, 2002 SCC 10at para. 27, [2002] 1 S.C.R. 227, observations made through “the unaided use of [the] senses” fall within the plain view doctrine.

Iwould not give effect to this ground. 69 The third area of concern raised by the accused is whether, after excising certain information, there was sufficientevidence to issue the warrant. In this case, a justice of the peace authorized the entrance and search (the authorizing justice). The judgeat trial (the reviewing court) was asked to review the ITO and, based on the redacted ITO, to determine whether the search warrantremained valid. 70 This court is now being asked on appeal to go over the decision of the reviewing court which reviewed the decision ofthe authorizing justice.

Therefore, our examination falls in the category of second-level appeals, and raises the issue of the applicablestandards of review at each level. While mindful that we are in a criminal law setting, the principles set out in Dr. Q v. College ofPhysicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, are applicable. Also see R. v. Shiers (J.G.), 2003NSCA 138 at para. 10, 219 N.S.R. (2d) 196. In essence, the standard by which this court will examine the reviewing court’s decisionwill be governed by the customary principles of appellate deference set out in Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. 71 Therefore, the standard by which to review the decision of a reviewing court will be determined as per the Dr. Qprinciples; i.e., examine the decision to see if the reviewing court selected and applied the correct standard when it reviewed theauthorizing justice’s decision to issue the warrant. In this case, determining whether the correct standard was selected is easilyascertainable. Determining whether the reviewing court incorrectly applied the correct standard entails reviewing the decision to ensurethat it was not arrived at on an erroneous basis.

For example, if the reviewing court correctly selects a deferential standard, but then failsto show the appropriate level of deference, second-level appeal intervention would be justified. 72 Accordingly, if the reviewing court chose the wrong standard of review or incorrectly applied the correct standard ofreview, no deference would be owed to its decision. This court would then stand in the shoes of the reviewing court and assess theauthorizing justice’s decision to issue the warrant in light of the correct standard of review.

However, if the reviewing court selected andapplied the correct standard of review, great deference is owed to the decision and unless the accused demonstrates legal error by thereviewing court, or any palpable and overriding error with respect to the facts and the evidence referred to in the analysis, then appellateintervention would be unjustified (see R. v. Caissey (L.M.), 2007 ABCA 380 at paras. 24-25, 422 A.R. 208, aff’d on other grounds, 2008SCC 65, [2008] 3 S.C.R. 451, R. v. Creelman (P.K.), 2007 NSCA 51 at para. 8, 254 N.S.R. (2d) 155, and R. v.

MacDonald (J.), 2012ONCA 244 at para. 11, 290 O.A.C. 21). 73 This brings me to the question: by which standard should the reviewing court conduct the review of the authorizingjustice’s decision to issue the warrant? That standard was explained by Sopinka J. in R. v. Garofoli, (SCC), [1990] 2S.C.R. 1421 (at p. 1452): The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere. …. [emphasis added] 74 The Supreme Court of Canada also recently reconfirmed and summarized the applicable standard in R. v. Campbell,2011 SCC 32, [2011] 2 S.C.R. 549 (at para. 14):

The relevant legal principles are not at issue in this appeal. Juriansz J.A. correctly followed the approach to reviewing the sufficiency ofa warrant application recently reviewed by this Court in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. In order to comply with s. 8 ofthe Charter, prior to conducting a search the police must provide “reasonable and probable grounds, established upon oath, to believethat an offence has been committed and that there is evidence to be found at the place of the search” (Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 168).

The question for a reviewing court is “not whether the reviewing court would itselfhave issued the warrant, but whether there was sufficient credible and reliable evidence” to permit an issuing justice to authorize thewarrant (Morelli, at para. 40). In conducting this analysis, the reviewing court must exclude erroneous information from the ITO andmay have reference to material properly received as “amplification” evidence (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para.58; Morelli, at para. 41).

The accused bears the burden of demonstrating that the ITO is insufficient (Quebec (Attorney General) v.Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68; Morelli, at para. 131). [emphasis added] 75 See also these recent appellate court decisions, R. v. Dionisi (A.P.), 2012 ABCA 20 at paras. 24-26, 519 A.R. 313, R. v.Pitre (M.S.), 2011 NBCA 106 at paras. 24-36, 381 N.B.R. (2d) 203, and R. v. Savoy (A.) et al., 2012 NBCA 36 at para. 18, 386 N.B.R.(2d) 330. 76 In short, the reviewing court is not to conduct a de novo hearing. It cannot simply substitute its own view for that ofthe authorizing justice.

The reviewing court asks itself “whether there was sufficient credible and reliable evidence” before theauthorizing justice to permit the issuance of the warrant (see R. v. Morelli, 2010 SCC 8 at para. 40, [2010] 1 S.C.R. 253). If thereviewing court determines that some of the information in the ITO needs to be excised or amplified, it will then continue its review ofthe amended ITO on the same standard.

If the authorizing justice could have authorized the entrance and search, deference is owed (seeGarofoli at p. 1452). 77 In this case, the accused has not argued that the judge selected the wrong standard by which to conduct the review ofthe authorizing justice’s decision. Rather, he contends that, based on the amended ITO, there did not remain sufficient credible andreliable evidence to allow the judge to conclude that the authorizing justice could have issued the warrant to search 427 Pacific Avenuefor a T-shirt and jeans.

The judge concluded that even on the redacted ITO, there was sufficient remaining information upon which asearch warrant could have issued. The Crown submits that it was not necessary for the judge to have completely excised paras. 7 and 8. I will assume, without deciding, that the judge did not err with respect to his decision to excise paras. 6, 7 and 8 from the ITO. 78 It is important to recall that there is a presumption that the search warrant has been properly issued, and the accusedbears the burden of proving otherwise (see R. v. Le (T.D.), 2011 MBCA 83 at para. 115, 270 Man.R. (2d) 82).

In my view, the judgewas correct to have concluded that the accused failed to meet this burden. There was sufficient credible and reliable evidence to find thatthe authorizing justice could have granted the warrant based on the redacted ITO. A review of the amended ITO shows that there wasevidence regarding the clothing the accused was wearing the night of the shooting (white T-shirt and blue jeans) in para. 3 of the ITO,and paras. 5 and 9 contain information that the accused might be residing at 427 Pacific Avenue.

These two elements (the “what” andthe “where” to search) made the judge’s conclusion as to the informational sufficiency of the redacted ITO a reasonable one. I

d) Decision not to Exclude the Running Shoes Under s. 24(2) 79 The final point raised by the accused relates to the judge’s decision not to exclude the running shoes under s. 24(2). Itis helpful to recall that the judge found the police had breached the accused’s s. 8 rights when their attendance at 427 Pacific Avenueturned into a warrantless search for evidence against the accused. Again, I will assume, without deciding, that he did not err in thisregard. As a result of this violation, the judge redacted parts of the ITO.

He, however, upheld the validity of the search warrant basedon the redacted ITO. 80 The accused argues that, even if the running shoes were collected under a valid warrant to search, they shouldnonetheless be excluded under s. 24(2) because of the earlier s. 8 breach. The case law establishes that if there is a sufficient temporalconnection between the evidence ultimately unearthed (the running shoes) and the earlier breach (the warrantless search of the home), acourt must still conduct a s. 24(2) analysis even when that evidence was obtained under a valid search warrant (see R. v.

Grant, (SCC), [1993] 3 S.C.R. 223 at 255, R. v. Wiley, (SCC), [1993] 3 S.C.R. 263 at 278, and R. v. Squires (E.),2005 NLCA 51 at para. 22, 249 Nfld. & P.E.I.R. 14). The Crown recognized the sufficiency of the temporal connection during thevoir dire. 81 As a determination to exclude under s. 24(2) requires a judge to exercise some discretion, “considerable deference” isowed to the judge’s assessment when the appropriate factors have been considered (see R. v. Grant, 2009 SCC 32 at para. 86, [2009] 2S.C.R. 353, R. v. Beaulieu, 2010 SCC 7 at para. 5, [2010] 1 S.C.R. 248, R. v.

Côté, 2011 SCC 46 at para. 44, [2011] 3 S.C.R. 215, and R.v. T.W.B., 2012 MBCA 7 at para. 25, 275 Man.R. (2d) 157). 82 For the reasons that follow, I would not accede to this ground of appeal. 83 As the Crown pointed out, the seriousness of the police conduct was considerably mitigated by the fact that the policehad attended the premises at the homeowner’s invitation to address safety concerns and that they discovered the running shoes (whichwere in plain view) when they were discharging their duty of clearing the house of any threat.

The intrusion into the accused’s privacyinterest, in light of the fact that the shoes were in plain view, was relatively minor and not accompanied by conduct that engaged theaccused’s human dignity. Finally, the information of the existence of the running shoes was discovered while the police were lawfullyaddressing safety concerns and provided reliable forensic evidence on a very serious charge of first degree murder, factors which, in my

view, favour their admission in furtherance of society’s interest in adjudication on the merits. II: Conflict of Interest Issues II

a) Background 84 Late in the trial, one of the two Crown attorneys assigned to prosecute the case (Ms Dewar) became aware that, whileshe had been in private practice, her law firm had acted for the accused on unrelated youth matters. She immediately informed counselfor the accused. He, in turn, brought a motion asking for a mistrial, for an order removing both Crown attorneys, and finally, an orderrequiring the Attorney General to assign the case to outside counsel.

A voir dire was held to determine the issues. 85 The evidence showed that Ms Dewar, while working as defence counsel, had occasion to attend two 1999 youthremand dates for the accused. Ms Dewar testified as to her past association with the accused and said she had no recollection of eitherattendance. Her file notes indicate that on the first remand date she received further particulars from the Crown and spoke with theaccused and his mother. On the second remand date, the accused’s appearance was waived. Ms Dewar became a Crown attorney in2000.

The accused’s current charge arose in 2002. 86 The accused did not testify on this voir dire. 87 The Crown conceded that, in light of Ms Dewar’s past association with the accused and his mother, it would notquestion an order removing her from the case. It, however, continued to oppose the request for a mistrial, the removal of the secondCrown attorney (Mr. Bayly) or an outside counsel order. For his part, the accused, while conceding the absence of actual prejudice,maintained that perception of trial fairness required that the orders sought be granted. 88 A preliminary issue was raised by the accused.

He argued that conduct of the voir dire proceedings should be assignedto outside counsel. The judge did not think that the situation required such an appointment and the matter proceeded. He made thefollowing factual findings: the accused suffered no actual prejudice; Ms Dewar’s past association with the accused did not result in herobtaining any confidential information which she could use at the accused’s trial; and Ms Dewar did not share any confidentialinformation she may have gathered with Mr. Bayly. The judge, while ordering the removal of Ms Dewar from the case, refused to grantthe other requested orders.

In arriving at his decision, he focussed on the need for public confidence in trial fairness and also took intoaccount the stage the trial had reached (the Crown had closed its case after several weeks of evidence) and the delay (the charge hadarisen seven years earlier and this was the accused’s third trial). 89 The accused appeals the judge’s ruling, arguing that he erred:

a) by refusing to order outside counsel to argue theconflict of interest motion; and

b) by not declaring a mistrial and refusing to order outside counsel after finding that Ms Dewar was inconflict. He submits that he did not receive a fair trial because of the conflict. He takes the position that the judge should have orderedoutside counsel to argue the conflict of interest issues because a Crown attorney was to appear as a witness at the voir dire. He points toR. v. Kinal (J.), 2007 MBQB 26, 211 Man.R. (2d) 147, as authority. He also submits that the judge’s preoccupation with the trial delayand stage of proceedings factors caused him to neglect the paramount consideration of trial fairness.

He contends that, once it was foundthat one Crown attorney was in conflict, the entire department was tainted by the conflict and thereby disqualified from participating inthe prosecution. He maintains that the judge should have declared a mistrial and ordered the Crown to retain outside counsel for anynew trial. 90 The Crown submits that in the context of criminal prosecutions, which are conducted under the overriding authority ofthe Attorney General, Kinal was wrongly decided. It points out that the Crown attorney who provided the evidence did not function asan advocate during the voir dire.

It also asserts that the institutional character of the Attorney General’s department requires thatconflict of interest issues involving Crown prosecutors be dealt with on a personal, rather than a systemic, level. Finally it argues that thejudge, in taking into account the public interest in the appearance of trial fairness, properly considered the fact that the conflict of interestissues were discovered late in the trial. II

b) Refusal to Order Outside Counsel on the Conflict of Interest Motion 91 I shall first deal with the issue of whether the judge erred by refusing to order outside counsel to argue the conflict ofinterest motion and whether Kinal was wrongly decided. 92 In Kinal, the judge was considering a motion for dismissal due to delay. In response to the motion, an affidavit wasfiled by the Crown attorney who had conduct of the prosecution. Another lawyer from Manitoba Justice was assigned to argue the delaymotion on behalf of the Crown.

As it appeared that the credibility of the deponent would be challenged in cross-examination, theaccused moved for recusal of Crown counsel. At issue was who should represent the Crown on the motion once a Crown attorney’scredibility is contested. 93 The judge in Kinal cited a fundamental rule of practice that a lawyer cannot be both counsel and witness in the samecase. He wrote that this rule also prevents counsel from “conducting a trial in which another lawyer from his or her office, whoseconduct has been called into question, is likely to be a witness in the motion or trial” (at para. 8).

The judge distinguished this court’sdecision in R. v. W.R.D. (1994), (MB CA), 92 Man.R. (2d) 276, on the basis that “the issue there was whether therewas a conflict of interest” (Kinal at para. 17), as opposed to the issue in Kinal, which was “whether the charge should be dismissed fordelay” (at para. 18). He also found that Crown counsel are not exempt from the operation of this rule and ordered that outside counsel beretained to argue the delay motion.

He wrote that such an order was “necessary to protect and preserve the unique role of the legalprofession” (at para. 19). 94 In my view, and with respect, if Kinal ever stood for the proposition that a lawyer from Manitoba Justice can neverrepresent the Crown each time a Crown attorney is required to testify on a defence motion, then it cannot be allowed to stand. Suchsituations can occur regularly; to name a few, on an unreasonable delay motion, on a stay motion resulting from the Crown’s delayeddisclosure, or on a conflict of interest motion, such as the one at hand.

Putting aside the impracticalities of imposing such an absolute

rule on the Attorney General’s department, the parallel reasoning used by the judge in Kinal to simply equate the Attorney General’sdepartment to that of a private law firm is unsound. Support for this conclusion is found in W.R.D. (which the judge in Kinal chose todistinguish), where Huband J.A. stated (at para. 13): The Attorney General is in a unique position, quite unlike that of a member of the private Bar. She is responsible for the prosecution ofcriminal cases within this jurisdiction. She also represents the Government of Manitoba for forensic purposes in civil suits.

It is noanswer, beyond political window dressing, to retain outside counsel. Whoever her agents may be, whether her permanent staff or outsidespecial appointments, they must function under the Attorney General’s direction. And the Attorney General must be allowed to fulfil theresponsibilities of that office unless and until circumstances arise which would compel the Court to interrupt the fulfilment of thoseresponsibilities.

No such case has been made out. [emphasis added] 95 To be clear, while the rule that a lawyer cannot be both counsel and witness in the same hearing is applicable toindividual Crowns, there is no general rule that compels the Crown to retain outside counsel every time Crown counsel is required togive evidence on a defence motion. This general rule is, of course, not absolute. There may be circumstances which will require theappointment of outside counsel. However, all that is generally required in such situations is for another Crown counsel to take conductof the hearing and lead that evidence.

See for example R. v. Leduc (2003), (ON CA), 66 O.R. (3d) 1 at para. 132(C.A.), leave to appeal to S.C.C. denied, [2003] S.C.C.A. No. 411 (QL), and R. v. Fullerton, [1997] O.J. No. 1484 (QL) at para. 18(C.J.). 96 And that is what happened in this case. During the voir dire, Mr. Szach, who at the time worked as Crown counselwith the Constitutional Law Branch of the Manitoba Justice, assumed carriage of the proceedings.

In my view, the judge dealt with thematter appropriately in the circumstances and correctly rejected the accused’s request to order Manitoba Justice to retain outside counselto argue the conflict of interest issues. As this court wrote in W.R.D., to have done so on these facts would have been superficial andserved no principled purpose because it is the Attorney General who bears the responsibility to prosecute offences: “[w]hoever heragents may be, whether her permanent staff or outside special appointments, they must function under the Attorney General’s direction”(at para. 13).

I would not give effect to this ground of appeal. II

c) Refusal to Find that Entire Manitoba Justice was in Conflict 97 The accused also contends that because of Ms Dewar’s conflict, the entire Manitoba Justice was in conflict. Hesubmits that the judge should have declared a mistrial and ordered that the Manitoba Justice retain outside counsel to prosecute the case. In essence, he is arguing that the judge was wrong in confining the conflict of interest to Ms Dewar personally as opposed to theManitoba Justice as a whole. 98 A judge’s refusal to grant a mistrial is an exercise in judicial discretion.

Unless the judge committed a reversible erroron fact or law, the decision is owed deference (see R. v. Oigg (K.D.), 2007 MBCA 34 at para. 3, 212 Man.R. (2d) 306, and R. v. Grant(I.M.), 2009 MBCA 9 at para. 69, 236 Man.R. (2d) 54). I have not been convinced, in the case at hand, that any such error wascommitted. The judge correctly found that, while the public interest in completing the trial of the matter was significant, the primeconcern was the need for public confidence in fairness of the trial. See R. v. Robillard (1986), 14 O.A.C. 314, and R. v. M.Q., 2012ONCA 224 at para. 33, 110 O.R. (3d) 276.

The judge in this case stated that: The overriding concern is trial fairness. The accused argues that it is also the perception of fairness, but I believe that the issue of theperception of fairness must be considered of (sic), in light of what is known at this stage. I am confident that a reasonable person, fully informed of all the facts that are before me, would not conclude that the trial has suddenlybecome an unfair proceeding based on Ms Dewar’s revelation. She has no recall of the earlier representation of the accused. Therepresentation was minor at best.

She did not play a significant role in the accused’ [sic] prior matters and he himself has not alleged thathe gave her confidential information which he is afraid she will use. …. Mr. Bayly, in turn, has not come into any confidential information from Ms Dewar and he himself was not in a personal conflictsituation. 99 As conceded by counsel for the accused, the evidence presented at the voir dire did not disclose any actual prejudice. In addition, there was no evidence that any confidential information had been used by Ms Dewar or shared by her with Mr. Bayly.

Infact, Ms Dewar had no recollection whatsoever of her prior representation of the accused. Obviously, neither did the accused, or hewould have raised this conflict himself. That neither Ms Dewar nor the accused remembered their past dealings is understandable as itwas fleeting and limited to unrelated matters.

100 This is not to say that the judge was wrong to have ordered Ms Dewar’s removal. To the contrary; the fact remains thatMs Dewar did at one time represent the accused and he had the right to her undivided loyalty. As reminded by Goudge J.A. in M.Q., theduty of loyalty encompasses the duty to avoid conflicting interests. He wrote (at paras. 26-27): An accused who is represented by counsel at trial is entitled to the undivided loyalty of that counsel. This principle is deeply embeddedin Canadian law. It has common law, statutory and constitutional roots.

It is an important aspect of the right to effective counsel. It isnot only vital for the client. It is essential to the integrity of the justice system and the confidence of the public in it: see R. v. Widdifield(1995), (ON CA), 25 O.R. (3d) 161, [1995] O.J. No. 2382 (C.A.), at pp. 171-72 O.R. The duty of undivided loyalty has as a central dimension the duty to avoid conflicting interests.

Michel Proulx and David Layton inEthics and Canadian Criminal Law (Toronto: Irwin Law, 2001) describe the duty this way, at pp. 290-91: In criminal cases, the justification for prohibiting counsel from representing an accused while labouring under a conflict takes onconstitutional dimensions. By definition where counsel for the accused has an actual conflict of interest, the client suffers throughrepresentation by an advocate whose loyalty is suspect.

In such circumstances, and no matter how competent the conflicted lawyer, theaccused has not been provided with effective counsel, which is itself a denial of fundamental justice and a violation of the CanadianCharter of Rights and Freedoms. 101 Having correctly concluded that Ms Dewar should no longer participate in the prosecution of the case, I finally turn tothe ground of whether the judge was wrong in confining the conflict of interest to Ms Dewar personally, as opposed to Manitoba Justiceas a whole. Specifically, I will review the judge’s refusal to:

a) remove Mr. Bayly;

b) order a mistrial; and

c) order Manitoba Justice toretain outside counsel for the prosecution of this case. The three matters are interconnected and can be dealt with together andsuccinctly. 102 As already mentioned, counsel for the accused was unable to show that his client suffered any actual prejudice arisingfrom Ms Dewar’s conflict. He was therefore left to argue that the conflict cast a shadow over the fairness of the trial. The judge did notagree. He held that Ms Dewar’s removal would address any concern on that front. He found there was no need to remove Mr. Bayly ordeclare a mistrial.

In my view, on the evidentiary record (that Ms Dewar had neither used any confidential information arising out of herprior representation of the accused, nor shared any such information with Mr. Bayly), the judge was well justified to conclude that Mr.Bayly remained untainted by any conflict of interest. 103 Moreover, on Mr. Bayly’s continuing participation in the case and how it relates to trial fairness and public interest, theSupreme Court of Canada recently reiterated in R. v.

Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, that trial fairness carries twoperspectives: the accused’s and the broader public interest. Rothstein J. wrote (at para. 22): While the accused must receive a fair trial, the trial must be fair from both the perspective of the accused and of society more broadly. InR. v. Harrer, (SCC), [1995] 3 S.C.R. 562, McLachlin J. (as she then was) provided guidance on what is meant by trialfairness. She stated, at para. 45, that: At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community.

A fair trialmust not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, (SCC),[1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldomattained.

A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for theaccused. [Emphasis added.] 104 When considering the concept of trial fairness, the judge can also take into account the contextual realities of the caseand how they relate to “the public interest in getting at the truth” (see R. v. Dew (E.J.), 2009 MBCA 101 at para. 90, 245 Man.R. (2d)211). Here, the judge considered the stage the trial had reached and the trial delay.

As was recently held in M.Q., at paras. 38-40, thestage the trial had reached is a relevant consideration when considering a conflict of interest issue and the trial fairness concern. In thecase at hand, since the trial was near its end, the judge had the added benefit of hindsight to assess whether the conflict of interest issuehad had an impact in any way on the fairness of the trial.

In my view, he correctly found that it had not. 105 The accused also argued that once a Crown attorney is found to be in conflict, the entire Justice Department is taintedand disqualified from participating in the prosecution of the case. He has provided no authority on point. As I mentioned above, theprinciples and practices surrounding conflict of interest issues in private law firms are not readily transferable to the Office of theAttorney General for the simple reason that it is the Attorney General who bears the responsibility to prosecute the offences for whichthe accused is charged.

As this court said in W.R.D. (at para. 13):

…. It is no answer, beyond political window dressing, to retain outside counsel. Whoever her agents may be, whether her permanentstaff or outside special appointments, they must function under the Attorney General’s direction. And the Attorney General must beallowed to fulfil the responsibilities of that office unless and until circumstances arise which would compel the Court to interrupt thefulfilment of those responsibilities.

No such case has been made out. [emphasis added] 106 From the above, it is clear that, in the context of criminal prosecutions, the need to retain outside counsel is subject tounique considerations. The judge was evidently of the view that “[n]o such case has been made out” in this case, and I have not beenpersuaded to interfere with his decision. III: Failure to Instruct on Certain Issues 107 The accused argues that the judge erred by failing:

a) to give specific instructions on the frailties of eyewitnessidentification; and

b) to instruct with regard to the difference between inferences and speculation. 108 It is well established that appellate courts are to review jury instructions on a standard of adequacy, not perfection, usinga functional approach that takes into account the nature of the evidence before the trial court, the live issues that were raised, thepositions of the parties on those issues, and the addresses of counsel (see R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314). III

a) Issues Regarding Frailties of Eyewitness Identification Evidence 109 I will first deal with the failure to give specific instructions on the frailties of eyewitness identification. In situationswhere a jury hears eyewitness identification evidence, it is vital that juries be made aware of the frailties related to this type of evidence. This is generally done through strong jury instructions. In this case, the judge granted the accused’s motion to allow opinion evidence tobe led from an expert in the field of eyewitness identifications.

Coincidentally, one week after he granted the motion, this court, in R. v.Woodard (J.), 2009 MBCA 42, 240 Man.R. (2d) 24, cautioned trial judges against letting expert witnesses appropriate the function androle of the trier of fact.

As I said in Woodard, while the concerns over the frailties of eyewitness identification are real, they aregenerally best addressed through strong jury instructions as opposed to through expert testimony (at paras. 38-39): I note the numerous words of warning from the Supreme Court of Canada which caution against letting expert witnesses appropriate thefunction and role of the trier of fact. The gatekeeper function of the trial judge in regard to the admissibility of expert opinion evidencewas emphasized by Binnie, J., in R. v.

J.-L.J., 2000 SCC 51 , [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, where, afterreferring to McIntosh [(1997), (ON CA), 35 O.R. (3d) 97 (C.A.)], he expressed “the need to draw the line properlybetween the role of the expert and the role of the court” (at para. 26). Major, J., also stated in R. v. D.D. [2000 SCC 43, [2000] 2 S.C.R. 275] that “[t]he primary danger arising from the admission of anyopinion evidence is that the province of the jury might be usurped by that of the witness” (at para. 53).

He further stated (at paras. 67-68): A jury instruction, in preference to expert opinion, where practicable, has advantages. It saves time and expense. But of greaterimportance, it is given by an impartial judicial officer, and any risk of superfluous or prejudicial content is eliminated. In this appeal, the evidence presented by the expert was precisely what the jury would have been instructed by a proper charge.

There isno difference of substance between the two. 110 And, as was so aptly and succinctly stated in his well-reasoned and insightful article, Professor Lee Stuesser, “Expertson Eyewitness Identification: I Just Don’t See It” (2006) 31:3 Man. L.J. 543, stated “[j]udges can remind just as well as experts” (atp. 549). Moreover, as the Supreme Court of Canada explained in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, another consideration isthe concern that arises with respect to judicial economy: “[a] jury instruction … saves time and expense” (at para. 67).

The testimony ofthe expert witness will not only bring additional costs to the parties involved in the trial process, it necessarily takes longer than a strongjury instruction and thereby extends the length of the trial. It also often burdens the jury with unnecessary surplus information. In thiscase, the testimony of the expert, Dr.

Geoffrey Loftus, took one full day and while the judge was not told the exact expenditure figure, hewas advised by counsel for the accused that the cost for bringing in the expert was “about $10,000 and up.” 111 The judge in this case granted the accused’s request for expert testimony. Although the Crown opposed the request,that decision is not under review because this is the accused’s appeal.

What is before this court is whether, in light of the expert’stestimony, the judge was still required to give the usual instruction on eyewitness identification evidence. 112 It is good to recall that, in preparation for his charge to the jury, the judge invited counsel to advise him of the issuesthey would like him to address in the charge. One of the issues raised by counsel for the accused was with respect to the frailties of

eyewitness identification evidence. The judge responded that he would address that issue in his charge. The judge’s initial jury instructions included the following references to certain frailties identified by the expert during his testimony: …. Keep in mind the evidence of Dr. Loftus as to the effect of alcohol consumption on a person’s vision and ability to perceive. You will recall he told you that it affects the vision in two ways in the ability of the eyes to focus and in increased double vision. . . . . . Remember what Dr.

Loftus told you about the impact of darkness, drinking, stress, inattentiveness, emotion, prior contact and weapon focus have on the ability of eyewitnesses to identify individuals. You must consider carefully what he told you about the ability of the witnesses to see what they told you and whether their evidence is reliable. Keep in mind the distinction that Dr. Loftus drew for you between accuracy and reliability and the fact that a witness’s reliability must be determined from the evidence surrounding their ability to observe regardless of the issue of accuracy.

As he told you, even a blindfolded witness can be accurate through guessing, but that does not mean that their evidence is reliable. 113 The next day, after counsel had received his charge, the judge asked counsel to raise any concerns they might have with his charge. Counsel for the accused raised a number of issues. One related to the testimony of Dr. Loftus. As a result of this expression of concern, the following two paragraphs were added: In addition to those errors, I also want to correct an impression that may have inadvertently been created from the Crown’s submission concerning Dr. Loftus.

You will recall that the Crown told you that Dr. Loftus could not say how the el

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