R v Herntier, 2020 MBCA 95

Citation: R v Herntier, 2020 MBCA 95 Date: 20201006 Docket: AR16-30-08636 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Holly C. Beard Madam Justice Diana M. Cameron BETWEEN: her majesty the queen ) M. D. Glazer ) for the Appellant ) Respondent ) A. Y. Kotler and ) J. N. Myskiw- and - ) for the Respondent ) ) Appeal heard:theodore raymond herntier ) November 7, 2019 ) ) Judgment delivered: (Accused) Appellant ) October 6, 2020 On appeal from 2016 MBQB 236 beard JA I.

THE ISSUES [1] The accused is appealing both his conviction by a jury on November 12, 2015, of second degree murder (section235(1) of the Criminal Code) and the parole ineligibility term of his sentence. [2] The accused has raised 19 grounds of appeal. Many are repetitive and overlap, while it is clear, after reviewing therecord, the written submissions of the parties and hearing from counsel, that others lack merit.

In my view, the grounds of appeal thatare appropriate for consideration are: 1. whether the trial judge erred in failing to enforce an undertaking given by Crown counsel as to the alleged date of the murder (seeparas 59-121 herein); 2. whether the trial judge erred in admitting evidence obtained pursuant to search warrants related to the premises at 755 Wall Street(see paras 122-207 herein); 3. whether the trial judge erred in admitting the DNA evidence taken from the hair found on the tape that bound the covering on thedeceased’s body (see paras 208-28 herein); 4. whether the trial judge erred in admitting the “I killed someone” statement allegedly made by the accused (see paras 229-77 herein); 5. whether the trial judge erred in instructing the jury by (

i) giving inadequate and prejudicial instructions regarding the DNA evidencerelated to the hairs (see paras 285-99 herein); (ii) failing to give a W(

D) instruction (see R v W(D), (SCC), [1991] 1 SCR742) regarding defence evidence other than that of the accused (see paras 300-38 herein); (iii) failing to give a bad character limitinginstruction regarding the “I killed someone” statement (see paras 339-50 herein); and (iv) failing to relate the evidence to the issues (seeparas 351-56 herein); 6. whether the verdict was unreasonable (see paras 357-72 herein); and

7. whether the trial judge erred in increasing the period of parole ineligibility by (

i) considering irrelevant information; (ii) taking into account the lack of an explanation and thereby using the accused’s silence against him; and (iii) imposing an unfit sentence that was clearly harsh and excessive (see paras 373-86 herein). [ 3 ] The accused also filed a motion to introduce new evidence and to add a new ground of appeal related to that evidence. That motion was dismissed at the hearing with reasons to follow, which are included here (see paras 19-58 herein). II.

THE FACTS AND BACKGROUND [ 4 ] The following is a brief overview of some of the facts and background to explain generally what this case is about. Further details will be reviewed, as necessary, in relation to the individual grounds of appeal. [ 5 ] The deceased, David Joseph Boulanger (also known as Divas

B) worked in Winnipeg as a transgender sex-trade worker. I will refer to her as “she” and “her”, according to her preference and consistent with the prior proceedings in this matter. Her sister reported her missing to the police on October 18, 2004.

Her naked body was discovered wrapped in plastic shrink wrap and plastic garbage bags, held together with tape, laying in the bushes at a rest stop on Highway 1 to the east of Portage la Prairie on November 3, 2004. [ 6 ] A friend and co-worker of the deceased, Charles Flett (also known as Erin Flett) (Ms Flett), contacted the police in mid-November 2004 with information about the deceased.

Another friend and co-worker, Elijah McIvor (also known as Ilaya) (Ms McIvor), spoke to the police regarding concerns that she had about a man she had been with on approximately six occasions in the previous six months, and she provided a description of this man as being 27 to 34 years of age, Métis with acne on his skin or holes on his face. Ms McIvor told the police that the man drove a small, older truck and gave them the licence plate number. She said that the truck had been grey in the past, but it was black on the night of her last encounter.

She also told the police that she had been with the man at both his residence on Walnut or Hazelnut and at 755 Wall Street. Ms McIvor’s information was provided by way of an agreed statement of facts, and the accused confirmed on the record that this information was correct. [ 7 ] The police determined that the licence plate number provided by Ms McIvor was assigned to a small truck belonging to the accused and, with that information, they began an investigation of the accused. [ 8 ] The police also received information from Ms Flett and another friend, Matthew Berens (formerly known as Dixie) (Mr.

Berens), that, one evening in late September 2004, the deceased was picked up by a small truck while working at the corner of Main Street and Sutherland Avenue, although they were inconsistent with each other as to the date. Ms Flett testified that this occurred late in the evening after they had attended a “Take Back the Night” march (the march), while Mr. Berens said that the deceased was not at the march, and that the deceased got into the truck sometime between mid-September and the end of September 2004. It was an agreed fact that the march took place on September 30, 2004.

Both said that they last saw the deceased getting into an older, small grey truck, but neither could see the driver. Ms Flett stated that one tail light was red and the other was orange. Neither had the licence plate number of that truck. None of the deceased’s other friends, her sister or her Family Services and Housing caseworker saw her after September 29, 2004. [ 9 ] On January 19, 2005, the accused was stopped by police near Swan River, Manitoba, and the officer noted that the tail lights were different colours because one of the tail lights was missing its cover.

On February 17, 2005, the police obtained a general warrant and, on February 21, 2005, they conducted a search of the shop at 755 Wall Street, which had been leased to the accused. There, they found what they believed to be drops of blood. Based on those observations, they obtained a second warrant to conduct a further search the next day, at which time they seized evidence, which turned out to be the deceased’s blood. The accused is challenging the admissibility of this evidence.

The police also found out that the accused’s machining equipment was for sale, so they purchased it and tested it for blood, finding none. When they purchased the equipment, it was wrapped in plastic shrink wrap. [ 10 ] An examination of the plastic covering on the deceased’s body disclosed hairs stuck to the tape.

While expert evidence identified one hair as belonging to the accused, the reliability of that identification is contested by the accused, as is its admissibility. [ 11 ] Evidence obtained from the accused’s cell phone records showed that his phone was in the area of Portage la Prairie, Manitoba, during the evening of September 30, 2004, and that he had made a number of calls to two friends and his niece between just before 9:00 p.m. and just after 11:00 p.m. Two friends testified that the accused had called for assistance as a result of having a flat tire and no spare.

Both witnesses said that the accused advised them that he was at or near a rest stop east of/outside of Portage la Prairie. The accused was looking for a replacement tire, but neither could find one that night. The accused finally called his niece to come and get him, and he returned the next day with a tire to get his truck. [ 12 ] The accused testified, denying that he knew the deceased or that he had killed her. He confirmed that he ran a machine shop at 755 Wall Street and that he moved out on October 15, 2004, because his business was not doing well. His plan was to go to Alberta to work in the oil fields.

He also confirmed that he had lived on Walnut Street. The accused testified that he was going up to Swan River on September 30, 2004, to look after some business regarding a property that he owned there before moving. He said that he got a flat tire near Portage la Prairie, but said that it occurred some distance to the west of the rest stop, and that he had pulled off of the highway and onto a median road to make the calls. He acknowledged that he called his two friends and that, in the end, his niece came to pick him up. [ 13 ] The Crown’s case was circumstantial.

There was no evidence as to the time or date of death, or that the grey truck seen by Ms Flett and Mr. Berens belonged to, or was being driven by, the accused. Further, there was no evidence that the accused and the deceased knew each other. [ 14 ] By the end of the trial, the Crown’s theory was that the accused had picked up the deceased late on September 29, 2004, or in the very early hours of September 30, 2004 (September 29, 2004), and took her to his shop at 755 Wall Street where, for some undetermined reason, he killed her by beating her with an object.

He wrapped her in shrink wrap and plastic, which was then taped together and, the next day, was in the process of disposing of the body when he got the flat tire by the rest stop near Portage la Prairie.

[ 15 ] The defence position was that the accused did not kill the deceased at any time—he had no motive to do so and, in fact, had never met her. The accused argued that, while there was no evidence as to when the deceased was killed, she was, according to Ms Flett, alive on September 30, 2004, because Ms Flett went to the march with her that evening, and she was still alive and with Ms Flett when the accused made his first telephone calls from outside of Portage la Prairie. Thus, he could not have killed her on September 29, 2004, as alleged by the Crown.

The accused called four witnesses who testified to having seen the deceased alive during the month of October 2004, and he argued that the killing occurred at the end of October, after he had moved away from Winnipeg. [ 16 ] The accused’s position was that, if the deceased was killed at 755 Wall Street, it was after he vacated the premises on October 15, 2004. He testified that his machining equipment was large and covered the wall on which the police found the blood drops.

He said that the only way the blood could have sprayed on the wall was after the equipment was removed, and he stated that this is supported by the fact that no blood was found on the equipment. [ 17 ] The accused challenged the

interpretation of the DNA from the hairs, which I will address later. The accused pointed out that, even if the DNA identification evidence was accepted, the presence of his hair on the tape is explained by the fact that he was the tenant in that location for many months. He said that, if someone else killed the deceased at that location after he moved out, it is probable that his hairs were still there from his earlier tenancy. III. STANDARD OF REVIEW [ 18 ] The applicable standard of review is determined by the nature of the issue being reviewed. If the issue is whether the trial judge erred in the application or

interpretation of the law, the question raised is one of law and the standard of review is that of correctness. If the issue is whether the trial judge erred in the facts or the inferences to be drawn from the facts, that raises a question of fact and the standard of review is that of palpable and overriding error.

If the issue is whether the trial judge erred in his application of the facts to the law, which includes the question of whether the facts meet the applicable standard, that raises a question of mixed fact and law and the standard of review, in a criminal case, is that of correctness. (See R v DNS , 2016 MBCA 27 at paras 32-33 ; and R v Fenske (HB) , 2016 MBCA 117 at paras 7-14 .) IV. MOTION TO ADMIT FRESH EVIDENCE 1. Issues and Standard of Review [ 19 ] The accused filed a motion for the following relief as part of this appeal: (

i) to adduce fresh evidence, being the transcript of a juror’s testimony at the juror’s unrelated criminal trial that took place after this trial; (ii) for an order to examine that juror; and (iii) to add, as a new ground of appeal, the allegation that the accused did not receive a fair trial due to a reasonable apprehension of bias on the part of the juror. [ 20 ] This motion raises the following question: under what, if any, circumstances have appellate courts admitted fresh evidence regarding statements by, or conduct of, a juror? [ 21 ] As this issue is being raised for the first time on appeal, there is no decision to be reviewed and, therefore, no applicable standard of review. 2.

Background [ 22 ] About eight months after this trial was completed, one of the jurors was charged with driving over .08. At the curative discharge hearing in that matter, the juror testified as follows: he had been a juror in this matter; he had tried unsuccessfully to get excused from jury duty; he was a transgender male; the trial had a stressful effect on him because it brought back unpleasant memories; the trial had had an effect on him, though he did not think that it would; and he was an alcoholic and drank up to four ounces of alcohol every day after court. 3.

The Parties’ Positions [ 23 ] The accused’s position is that this evidence shows that the juror was not impartial and that he was unfit to sit as a juror due to his alcoholism. As a result, he says that he did not receive a fair trial. He argues that the evidence of alcoholism and the fact that the juror was transgender are extrinsic and, therefore, not prohibited by the jury secrecy rule. [ 24 ] The Crown’s position is that the effect of section 683(1) (

b) of the Criminal Code is that a juror is not compellable to testify at an appeal hearing. As a result, this Court has no jurisdiction to order the examination of the juror. It argues that, even if section 683(1) (

d) of the Criminal Code otherwise applied to permit the examination if the juror agreed, that evidence, whether from the juror or through the transcript, would be prohibited by the jury secrecy rule. Finally, the Crown argues that that evidence does not support a finding that the juror was biased or not able to carry out the duties of a juror due to the use of alcohol, leading to an unfair trial. 4.

Analysis—Fresh Evidence 4.1 Compellability [ 25 ] The first issue relates to the compellability of the juror—can this Court order that the juror be examined? [ 26 ] Section 683(1) of the Criminal Code permits an appellate court to order the production of fresh evidence where “it considers it in the interests of justice.” The relevant parts of that

section are: Powers of court of appeal

683(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice, . . . (

b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial, (

i) to attend and be examined before the court of appeal, or (ii) to be examined in the manner provided by the rules of court before a judge of the court of appeal, or before any officer of the courtof appeal or justice of the peace or other person appointed by the court of appeal for the purpose; . . . (

d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness; . . . [27] The question of compelling a juror to testify at an appeal was considered by the British Columbia Court of Appeal in Rv Budai, 1999 BCCA 501. Mackenzie JA, writing for four judges, reviewed section 683(1) and the related jurisprudence and thenconcluded (at para 16): In my opinion, the language of s. 683(1)(

b) is clear and unambiguous. A witness compellable in this Court must be a compellablewitness at the trial, that is, a witness in the normal adversarial process. A juror exercises a judicial function not as an adversarial witnessand cannot be compelled to take the oath of a witness at the trial.

In my opinion, therefore, [the juror] is not a compellable witness inthis appeal. [28] The Court went on to conclude that the juror was a competent witness and could voluntarily take an oath as a witness,after which she would be subject to examination and cross-examination, with the exception of questions involving the jury’sdeliberations, which would be excluded pursuant to the jury secrecy rule (see paras 20-23). [29] We are of the view that Budai correctly sets out the law in this area.

Applying that decision to this motion, we find thatthis Court has no jurisdiction to compel or order the juror to be examined. 4.2 Test for Admitting Fresh Evidence [30] The test for admitting fresh evidence where the ground of appeal relates to the validity of the trial was set out by thisCourt in R v Richard (DR) et al, 2013 MBCA 105, leave to appeal to SCC refused, 35705 (4 September 2014) (at paras 202-204): Generally, there are two situations that arise where a court of appeal is asked to consider fresh evidence.

The most common kind offresh evidence is where the reliability of a verdict is challenged on the basis that the fresh evidence could render unreliable one of thefindings of fact material to the verdict. In that case, the criteria used to govern the analysis of fresh evidence are those found in Palmer etal. v. The Queen, (SCC), [1980] 1 S.C.R. 759. This type of evidence is aimed at relitigating the matter. The second category, which is the category engaged in this motion, arises in circumstances where the evidence is directed at thefairness of the trial. . . .

Where this type of evidence is accepted by a court of appeal, the conviction is quashed as a miscarriage ofjustice for the reason that a verdict produced by a fatally flawed process is considered unreliable. See Truscott [Truscott (Re), 2007ONCA 575] at para. 85.

When considering evidence directed at the fairness of the trial process, the Palmer criteria do not apply.

Rather, in determiningwhether the “interests of justice” are engaged, the court must conduct “an examination of the grounds of appeal raised, the materialtendered and the remedy sought” which may include “material extraneous to the trial record” so long as it is relevant to the issue, R. v.Widdifield (1995), (ON CA), 25 O.R. (3d) 161 (at pp. 169-70) (C.A.). [31] The fresh evidence must be sufficient to justify the remedy being sought (see United States of America v Shulman, 2001SCC 21 at para 45). [32] Generally speaking, the applicable criteria are that the proposed evidence must be relevant, credible and otherwiseadmissible, in that it complies with the evidentiary rules governing the admissibility of evidence. (See The Queen v O’Brien, (SCC), [1978] 1 SCR 591 at 602; and R v Phillips, 2008 ONCA 726 at para 45.) Applying these criteria, the courts havetailored the admissibility analysis to the relevant issue on appeal. (See, for example, R v Taillefer; R v Duguay, 2003 SCC 70 at paras77-78; Shulman, at paras 44-45; R v W(W) (1995), (ON CA), 100 CCC (3d) 225 at 233 (Ont CA); and R v Dunbar,Pollard, Leiding and Kravit, 2003 BCCA 667 at paras 35-37.) In Richard, Cameron JA, for the Court, considered whether the freshevidence was “sufficient to undermine the reliability of the verdicts” (at para 208). [33] In this case, the Palmer criteria (see Palmer v The Queen, (SCC), [1980] 1 SCR 759) do not applybecause the purpose of the fresh evidence is to impugn the impartiality of the jury, an essential component of trial fairness. (See, forexample, R v Budai, 2001 BCCA 349 at paras 88-89, leave to appeal to the SCC refused, 2002 CarswellBC 238; R v Gumbly, 1996NSCA 213; and R v Sudweeks, 2003 BCSC 1960 at paras 35-36.) [34] Here, because the evidence relates to juror conduct, the evidentiary rule known as the jury secrecy rule is applicable tothe issue of the admissibility of the evidence. 4.3 The Jury Secrecy Rule [35] The law states that evidence that concerns a juror or a jury will not be admissible if it comes within the jury secrecyrule.

The scope of the jury secrecy rule was set out by Arbour J (for the Court), in the seminal decision of R v Pan; R v Sawyer, 2001SCC 42, wherein she stated (at para 77): . . . [S]tatements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of theirdeliberations are inadmissible in any legal proceedings. In particular, jurors may not testify about the effect of anything on their or otherjurors’ minds, emotions or ultimate decision.

On the other hand, the common law rule does not render inadmissible evidence of facts,statements or events extrinsic to the deliberation process, whether originating from a juror or from a third party, that may have tainted theverdict. [emphasis added] [36] Arbour J set out three rationales for this rule: (1) the promotion of full and frank debate by jurors, free from the fear ofpotential public ridicule, contempt or hatred; (2) the assurance of finality and the authority of a verdict; and (3) the protection of jurors’sense of safety, security, and privacy to ensure that they will be willing to discharge their function honestly and honourably (see paras49-52). [37] Arbour J distinguished between extrinsic evidence, which would be admissible, and intrinsic evidence, which would beinadmissible.

She applied this distinction to the proposed evidence relating to a juror’s personal life experiences and concluded that theevidence would be inadmissible even if the juror revealed “some specialized knowledge” related to the trial (at para 61): Jurors are expected to bring to their task their entire life’s experiences. It is on the basis of what they know about human behaviour,knowledge that they have obviously acquired outside the courtroom, that they are requested to assess credibility and to draw inferencesfrom proven facts.

Even though not the object of evidence tendered in the trial, an opinion, a piece of general information, or even somespecialized knowledge that a juror may reveal in the course of the deliberations, is not an extrinsic matter. Typically, such informationwould not be the object of evidence tendered at trial. It would be viewed as either irrelevant, too remote, or as attempting to usurp thefunctions of the jury.

On the other hand, if a juror, or a third party, conveys to the jury information that bears directly on the case athand that was not admitted at trial, by reason of an oversight or a strategic decision by counsel or, worse yet, by operation of anexclusionary rule of admissibility, then it is truly a matter “extrinsic” to the deliberation process and the fact that it was introduced intothat process may be revealed. [emphasis added] [38] The accused in this case argues that the personal memories and experiences of a juror, if they were not discussed withthe jury during deliberations, may fall outside of the scope of the jury secrecy rule.

His position is that “it is necessary in the interests ofjustice to determine what impact the unpleasant memories experienced by the juror in question had on this juror’s ability to remainimpartial at the [accused’s] trial”. [39] We are of the view that the accused’s position on the application of the rule is too narrow. It neither reflects the role ofa juror nor respects the purpose of the rule. In Pan, Arbour J explained the role of a juror as follows (at paras 43-44, 46): . . . In acting as fact-finders in a criminal trial, jurors, like judges, bring into the jury room the totality of their knowledge and

personal experiences, and their deliberations benefit from the combined experiences and perspectives of all of the jurors. . . . . . . [T]he thoughts and discussions of the jurors that occur in the course of their deliberations are not revealed – only the jury’s ultimate verdict is made public. . . . While the jury’s verdict may be challenged through the normal appeal process, the jury’s reasons for arriving at the verdict cannot be inquired into. . . . [emphasis added] [ 40 ] The juror’s role is to deliberate by considering the evidence, arguments and the judge’s instructions.

Some of that deliberation will necessarily be private to the juror and remain so, while some will be shared with the other jurors. Both processes of deliberation are intrinsic to the jury—they occur during the trial without influence or information from outside the trial. There is no principled basis upon which to distinguish the two. [ 41 ] This

interpretation of the jury secrecy rule is the one that is the most consistent with its purpose. Subjecting a juror to questioning about undisclosed personal deliberations would be even more invasive than questioning about matters that had been disclosed to the other jurors. The rule would be considerably weakened if it were limited to protecting a juror’s discussions with other jurors, but did not apply to unexpressed personal thoughts and feelings. This

interpretation is consistent with Arbour J’s reasoning in Pan , as set out above. [ 42 ] In our view, any questioning of this juror for the purposes identified by the accused, whether compelled or voluntary, would breach the jury secrecy rule and the evidence would, therefore, be inadmissible. 4.4 Use of the Transcript [ 43 ] The accused argues that, even without hearing any evidence from the juror, the transcript from the curative disposition hearing should be admitted because it is sufficient to establish that there was a reasonable apprehension that the juror was biased and, therefore, the trial was unfair. [ 44 ] There are a number of cases where extraneous evidence of jurors’ thoughts or feelings, for example, juror letters or juror conversations with a third party, have been the subject of an application to admit the evidence, and those applications have rarely been successful. (See, for example, R v LHS , 1999 BCCA 307 at para 66 ; and R v Lawrence , 2001 NSCA 44 at paras 97 , 123, 128.) In Pan , a second accused had received a telephone call from a juror after the trial, stating that the verdict was “eating her inside” (at para 123), that she had been under undue pressure in coming to the verdict, and that racial slurs were made by some jurors during deliberations.

Arbour J concluded that that evidence was inadmissible as it “fell within the scope of the common law rule of jury secrecy” (at para 123). (See also R v Frebold , 2001 BCCA 205 at paras 28-29 , 40; and R v Ferguson , 2006 ABCA 36 at paras 50 , 52, 55-56.) [ 45 ] The argument for admission in this case is even weaker, as there is no indication that the juror’s feelings and thoughts had any effect on the verdict.

We are of the view that the evidence in the transcript is evidence of the juror’s thoughts and feelings related to the deliberations and, as a result, is inadmissible as it would fall within the jury secrecy rule. 4.5 Bias and Alcoholism [ 46 ] A review of the jurisprudence demonstrates that, even if the transcript was admissible, the evidence therein does not meet the test for establishing a reasonable apprehension of bias on the part of the juror. [ 47 ] In R v Poon , 2012 SKCA 76 , the accused was charged with sexual assault.

During the trial, the court registrar received a message questioning the impartiality of a juror on the basis that the juror had been the victim of sexual abuse as a child and an adult and was currently in an abusive relationship. The trial judge refused to make any inquiries of the juror, and he took no action on the information.

The accused appealed on the basis that there was a reasonable apprehension of bias on the part of the juror and that the trial judge was required to make inquiries of her. [ 48 ] In finding that there was no error, Jackson JA, for the Court, stated (at para 16): The within appeal presents a different sort of dilemma regarding the extent to which the criminal justice system need concern itself with the private life of a sworn juror. In resolving that dilemma, the trial judge mentioned the key factors that set this case apart from the authorities cited by the defence.

First, jurors are expected to bring their entire life’s experiences to the task of judging [citations omitted]. Second, all jurors, including a juror who has been the victim of a crime, are presumed by the process and their oaths to judge impartially [citations omitted]. Third, the Canadian justice system is sensitive to the privacy interests of prospective jurors [citations omitted]. In furtherance of that end, the Canadian [justice] system does not permit the pre-questioning of jurors [citations omitted]. If Dr.

Poon had been aware of the allegations against the juror before she had taken her oath, he would not have been permitted to question her about them or to successfully challenge her for cause on the basis of them. [ 49 ] We agree with these conclusions. [ 50 ] The transcripts do not reveal that the juror in this case was dissatisfied with the verdict, the jury process, or the juror’s treatment while acting as a juror.

While carrying out the duties of a juror was clearly difficult for this juror, this is undoubtedly a common experience for many jurors, as these cases are often difficult and involve troubling evidence. The fact that a juror expresses those feelings does not, on its own, raise a concern that there was a reasonable apprehension of bias.

[ 51 ] The proposed fresh evidence is, likewise, not sufficient to raise any concern about the juror’s ability to perform the duties of a juror due to alcohol consumption. While the juror indicated that he was an alcoholic and consumed up to four ounces of alcohol after court each day, the accused did not point to any evidence that suggested that the juror was ever drunk in court or that alcohol consumption interfered with the ability to carry out the duties of a juror.

There is a strong presumption each juror will follow the oath that he or she took, and the evidence in this case is not sufficient to raise a concern that this juror was not able to do so due to alcohol consumption. 5. Conclusion [ 52 ] This Court has no jurisdiction to require that the juror be examined because to do so would be contrary to section 683(1) (

b) of the Criminal Code . A juror could, however, testify or give evidence voluntarily, provided that the evidence was otherwise admissible. [ 53 ] To be admitted, fresh evidence must be relevant, credible, capable of justifying the order sought and not subject to any exclusionary rules.

Palmer is not applicable to determine the admissibility of fresh evidence directed to the validity of a trial. [ 54 ] In Pan , Arbour J outlined the scope of the common law jury secrecy rule regarding admissibility, which distinguishes between intrinsic evidence (which is inadmissible) and extrinsic evidence (which is admissible). She held that a juror’s personal life experiences are protected by the jury secrecy rule as intrinsic evidence.

Extrinsic evidence would consist of information conveyed to a jury from an external source that is not excluded by the jury secrecy rule. [ 55 ] The transcript should not be admitted as fresh evidence, as it fails to provide any “extrinsic evidence” relevant to an allegation of bias. While the transcript is extrinsic to the juror, the evidence for which it is offered as proof is that of the juror’s thoughts and feelings at the time of the trial.

This is intrinsic evidence that falls within the scope of the jury secrecy rule. [ 56 ] For the same reason, the jury secrecy rule would prevent the juror from voluntarily testifying as to his or her personal experiences related to the trial. [ 57 ] The evidence regarding the juror’s consumption of alcohol did not call into question his ability to carry out the duties of a juror and was not sufficient to raise any concern in that regard.

Thus, we are of the view that it does not meet the test for admissibility as fresh evidence. [ 58 ] For these reasons, we found that the evidence was inadmissible and we dismissed the motion to cross-examine the juror and to add a new ground of appeal. V. GROUNDS OF APPEAL Ground 1: Did the trial judge err in law by failing to enforce the undertaking given by Crown counsel to the effect that the Crown would rely on the offence date of September 30, 2004 at trial? 1. Background [ 59 ] This matter arose on the record during the pre-charge conference on November 6, 2015, rather than by way of a formal motion.

As a result, the parties’ positions and the trial judge’s reasoning are not clearly set out and must be gleaned from those discussions and from the record. [ 60 ] After the defence began calling evidence but before the accused testified, defence counsel received notification that the Crown was changing its theory regarding the date of the murder, taking the position that it occurred late on September 29, 2004, or very early on September 30, 2004 (September 29, 2004), rather than late on September 30, 2004, or very early on October 1, 2004 (September 30, 2004), and that Ms Flett was mistaken in her testimony by one day.

This notification came on November 3, 2015, when the Crown provided its theory of the murder in writing to the trial judge. [ 61 ] Defence counsel argued that the Crown should not be able to change its position because it had given an undertaking, both following the preliminary inquiry in 2012 and again in an email on July 17, 2014, that it would be maintaining its position that the deceased was killed on September 30, 2004. [ 62 ] The accused’s position was that the Crown was ethically bound by its undertaking and that it was unfair and prejudicial to him to permit the Crown to make the change at that late date.

He argued that the trial judge should instruct the Crown that it could not change its theory of the date because that would be a breach of its undertaking. [ 63 ] When asked, the Crown acknowledged that it “gave an undertaking . . . with the incorrect date as to when this, in fact, unfolded”. That the Crown was mistaken is demonstrated by looking at its submissions on the DNA voir dire on May 15, 2015.

In that argument, the Crown stated that the accused made the phone calls regarding his flat tire “about 24 hours after we say that the deceased went missing.” Those phone calls were made on September 30, 2004, so the Crown’s position was that the deceased went missing the day before, which was September 29, 2004. [ 64 ] The trial judge questioned defence counsel as to what prejudice would be caused by this change.

A review of the transcript shows that defence counsel raised several issues: that he had abandoned a motion for particulars after the preliminary inquiry based on the Crown’s undertaking that it would not change its theory from that argued at the preliminary inquiry; that he did not move to quash on the understanding that “on or about” in the indictment (which states “on or about” September 28, 2004) includes September 30, 2004; that the accused did not bring a motion for a directed verdict because they were relying on the Crown’s undertaking; and that the defence of the accused was conducted on the basis of the earlier theory.

[65] The Crown stated that the evidence of the witnesses Ms Flett and Mr. Berens was inconsistent as to when the deceasedgot into the grey truck. The Crown’s position was that Ms Flett was mistaken, that the jury should find that Mr. Berens’ evidence aboutthe date and the march was correct and that, when considered together with the other evidence in this case, the jury could find that themurder occurred on September 29, 2004. [66] The trial judge stated that these positions were both just theories.

He pointed out that there was evidence to supportboth dates, and that it would be for the jury to decide what to make of the evidence. He then said that he did not see where this change inthe Crown’s theory had caused any prejudice to the accused. Defence counsel set out his view of the ways, as noted above, that thedefence had been prejudiced by relying on the Crown’s undertaking as to its theory. After further discussion, the trial judge stated thathe was not going to direct the Crown to change its theory.

While he gave no reasons for so ruling, a fair reading of the transcript leads tothe conclusion that he remained of the view that the undertaking was just the Crown’s theory, that there was circumstantial evidence tosupport that theory, and that the change had not caused any prejudice to the defence case. 2. The Parties’ Positions [67] The accused’s position remains that the Crown gave an undertaking that its theory was and would remain the same as atthe preliminary inquiry.

Defence counsel argues that “an undertaking given by the Crown must be respected and enforced by theCourt.” His position is that an undertaking is different from particulars or the Crown theory, and that, having called it an undertaking, itmust be enforced.

In support of that proposition, he refers to ten cases listed in his factum and R v Hernando, 2009 MBQB 214. [68] Defence counsel also argues that the accused was prejudiced in the following ways: the accused relied on the Crown’stheory to support his alibi for the night of September 30, 2004; he did not bring an anticipated motion to quash the indictment; and he didnot bring an anticipated motion for court-ordered particulars.

He does not, however, explain how these matters prejudiced his client’scase. [69] The Crown’s position on appeal is that there was no agreement as to the exact nature of the undertaking that was given. It points out that the undertaking arose in response to the accused’s request for particulars, which is when the Crown stated that its caseat trial would be the same as that led at the preliminary inquiry. [70] The Crown notes that it called the same evidence at the trial as it called at preliminary inquiry, including thecontradictory evidence of Ms Flett and Mr. Berens.

It argues that it was clear at the preliminary inquiry that the jury would ultimatelyhave to address these contradictions in coming to its verdict. In fact, this was the finding of the preliminary inquiry judge in response tothe accused’s argument for a dismissal of the charges on the basis of his alibi arising from the cell phone records (see 2013 MBPC 15 atpara 93). It takes the position that the accused was not taken by surprise by any of the evidence called at the trial or by the case calledby the Crown, that he was not misled in his defence, and that there was no prejudice to him. 3.

Standard of Review [71] There are three alleged errors related to this issue: - whether the trial judge erred in determining the accused’s motion on the basis of prejudice to the accused; - whether the trial judge erred in determining that the change in the Crown’s position would not cause prejudice to the accused; and - whether the trial judge erred in the exercise of his discretion in dismissing the accused’s motion. [72] The first issue raises a question of law, being the determination of the law and test to be applied to determine themotion, and is reviewed on the standard of correctness.

A trial judge must apply the correct law. The second issue deals with theapplication of the law to the facts and, in the criminal context, is also a question of law that is reviewed on the standard of correctness. The third issue involves the trial judge’s decision as to whether to grant the motion. Assuming that there have been no errors in principleor fact, that decision is discretionary and is reviewed on a deferential standard. 4.

Analysis—Crown Undertaking 4.1 The Accused’s Jurisprudence [73] The accused argues that the Crown was ethically bound by its undertaking as to the date of the offence and should beheld to that undertaking. In my view, none of the cases that he provided support that position in the context of the facts of this case. [74] In some of the cases provided by the defence, the accused therein agreed to, and did, take steps in the proceedings totheir detriment.

When the Crown reneged on its parts of the agreements, the accused were successful on applications for relief on thebasis that the Crown’s actions were an abuse of process. For example, in R v Bursey, 1991 CarswellNS 618 (Co Ct), the accused agreedto, and did, testify in an armed robbery trial in exchange for a promise to stay unrelated fraud charges against him. After he testified andthe accused were convicted, another police officer proceeded with the fraud charges.

The Court stayed the charges on the basis that itwould be an abuse of process to permit the Crown to proceed. (See also Regina v Crneck, Bradley and Shelley (1980), (ON SC), 55 CCC (2d) 1 (Ont H Ct J).) [75] In other of the cases provided, the circumstances of the Crown being held to its undertakings are as follows: an accusedturned over drugs on an undertaking not to be charged and, after doing so, was charged (see Re Smith and The Queen (1974), (BC SC), 22 CCC (2d) 268 (BC SC)); an accused agreed to take sex offender treatment on an undertaking that he would notbe charged with sexual offences and, after completing two years of treatment, was charged (see R v D(LB), 1995 CarswellSask 97 (QB));an accused was charged with assault causing bodily harm that occurred in the course of a postal workers’ strike, when the strikesettlement included a term agreed to by the federal government that no charges would be brought (see Regina v Betesh (1975), (ON CJ), 30 CCC (2d) 233 (Ont Co Ct J)); the accused pled guilty on the basis of the Crown’s undertaking as to the

sentence but, after that sentence was imposed, the Crown appealed the sentence (see Regina v Agozzino (1968), (ONCA), [1970] 1 CCC 380 (Ont CA); and Regina v Brown (1972), (ON CA), 8 CCC (2d) 227 (Ont CA)). [76] In two of the cases, the Court held the Crown to its undertakings to translate documents (see R v Mandate Erectors andWelding Ltd, 1999 CarswellNB 501 (CA)) and to provide disclosure (see R v Watt, 2007 NSSC 20). In Watt, the accused had applied forrelief under

section 7 of the Charter (see the Canadian Charter of Rights and Freedoms (the Charter)), and the Court found that theCrown’s failure to make timely disclosure had impaired the accused’s right to make full answer and was an abuse of process (seepara 64). [77] In R v Horan, 2008 ONCA 589, the accused agreed not to challenge the admissibility of his statement based on theCrown’s undertaking to use it only for cross-examination purposes. Later in the trial, the Crown indicated that it had changed itsposition and wanted to put the statement in as evidence.

The trial judge refused to permit the Crown to change its position.

On appeal,the Court found that the statement was presumptively inadmissible, that the court rules required the Crown to give notice of its intentionto admit the evidence (which it had not done), that it would have been disruptive to change the course of the trial and hold a voir dire atthat stage of the proceedings, that the defence was entitled to conduct its case on the basis of the Crown’s position and that, in light ofthe remaining evidence called by the Crown, it had not shown that the exclusion of the statement could have affected the verdict; thus,there was no prejudice to the Crown. [78] Finally, in Hernando, the Crown took the position that the unlawful act underlying the manslaughter charge waspossession of a weapon dangerous to the public peace.

After calling all of its witnesses, the Crown stated that it was adding analternative predicate offence, one based on assault. The trial judge found that this was the first time that the Crown had indicated analternative mode of committing the offence.

He held that to permit the Crown to add this alternative theory at that stage would result insignificant prejudice and unfairness to the accused, and he refused to permit the Crown to rely on the proposed new predicate offence. [79] In my view, the conclusion to be drawn from these cases is not that the Crown is ethically bound by every undertakingthat it makes but, rather, that there must be prejudice and unfairness to the accused as a result of him or her relying on that undertaking,often determined to be an abuse of process, before the Crown will be bound. [80] This is demonstrated in Crneck.

In that case, there were three accused. One accused agreed to give a statement to thepolice and testify on the Crown undertaking to stay the charges against her. She gave the statement and the Crown decided to proceedagainst only one of the accused. A new Crown attorney took over the file and proceeded against all three accused, so the two applied fora stay of proceedings based on the Crown’s undertaking.

The trial judge stayed the charges against the accused who had provided thestatement on the basis that it would be an abuse of process to permit the Crown to proceed after she carried out her part of the deal, butrefused to do so in relation to the other accused.

He found no abuse of process regarding that accused because there was noconsideration from him for what was a unilateral decision not to continue the prosecution against him; but, rather, that, because theaccused was really only the beneficiary of a unilateral decision by the Crown, it would not constitute an abuse of process to permit theCrown to change its position. 4.2 The Undertaking in This Case [81] During the pre-charge conference, defence counsel stated: . . . A long time ago I indicated I would be bringing a motion for court ordered particulars under Section 587(1)(

f) of the CriminalCode for the Crown to particularize the offence. Crown counsel assured me that their theory would not change and their theory wouldbe identical to what the theory was at the preliminary hearing. Now, this was confirmed by emails. And July 17th [2014] Crowncounsel indicated: Regarding your theory, Crown theory request, I can advise we are providing the Crown’s submissions on committalwhich will serve as particularization of the Crown theory. [82] From this, it is clear that the accused was looking for further particulars, and what the Crown provided was oralparticulars.

There was no undertaking by the Crown beyond the provision of particulars as to the date of the offence and the Crown’stheory of the case, and the accused did not give up anything by not proceeding with his motion for particulars; rather, his motion becameunnecessary—moot—because the Crown provided the requested details on a voluntary basis.

The accused must have been satisfied withthis response because he took no further action. [83] In my view, the Crown was not providing an undertaking in the sense of the cases provided by the accused but, rather,particulars of the date of the offence and the Crown’s theory of the case. 4.3 Principles Regarding Particulars [84] The law regarding the legal effect of particulars is long standing and well known, so I will summarise those parts thatare relevant to this matter: - An indictment or information will be sufficient if it contains the time, place, victim and the nature of the offence, even if it does notdescribe the particular details of the offence. (See Regina v Colgan (1986), (MB CA), 30 CCC (3d) 183 (Man CA) at188-89, aff’d (SCC), [1987] 2 SCR 686; and sections 581(1)-581(3), 583 of the Criminal Code.) - Where a count is sufficient, further details are provided by way of particulars. (See Colgan at p 188; and section 587(1) of theCriminal Code.) - Particulars delivered pursuant to

section 587 form part of the indictment, such that the indictment is to be read as if it had beenamended to conform to the particular. (See section 587(3)(

c) of the Criminal Code.)

- The general rule is that the Crown must prove the material particulars alleged in the count, or the charge will be dismissed for fatalvariance between pleadings and evidence. However, non-essential particulars, e.g. as to time or place, need not be proved with precisionand may be deemed to be surplusage. (See section 601(4.1)(a)-601(4.1)(

b) of the Criminal Code; and EG Ewaschuk, CriminalPleadings & Practice in Canada, 2nd ed (Toronto: Thomson Reuters, 1988) (loose-leaf updated 2020, release 164), pt IV, ch 9 at para9:9010 (online: WLNext Can (date accessed 14 August 2020).) - It is necessary to distinguish between particulars of the essential elements of the charge and particulars of the Crown’s theory as toliability.

It is not necessary for the Crown to prove its theory, so particulars cannot be ordered so as to limit the scope of the accused’sliability for the offence. (See Ewaschuk at paras 9:8065, 9:8090.) - Oral particulars of a charge as stated by the Crown in response to a demand for particulars will, in most cases, constitute particularswithin

section 587 of the Criminal Code and bind the Crown. (See Ewaschuk at para 9:9020.) - Particularization of the Crown’s theory or position does not constitute formal particulars within

section 587, so that the Crown is notbound by particularization of its theory or position as to liability.

As already noted, there is no power to order the Crown to particularizeits theory of liability. (See Ewaschuk at para 9:9030.) - The trier of fact is neither bound by the theory of the Crown nor by the theory of the defence in its consideration of the evidence inrelation to proof of a charge. (See Ewaschuk at para 9:9030.) - The Crown is entitled to revise its theory to accord with the evidence adduced at trial, particularly where the accused elects to testify,so that its theory must be fluid to accommodate changes in the evidence both before and during trial. (See Ewaschuk at para 9:9030.) - If a particular, whether as originally drafted or as subsequently supplied, is not essential to constitute the offence, it will be treated assurplusage, that is, a non-necessary which need not be proved.

Where, however, the accused has relied on the alleged surplusage, theCrown is required to prove it if the lack of proof will prejudice or cause an injustice to the accused. (See sections 601(4)(d)-601(4)(

e) ofthe Criminal Code regarding amendments; and Ewaschuk at para 9:10010.) - A date specified in an indictment has never been held to be a material matter. Thus, the Crown has never been required to prove thealleged date unless time is an essential element of the offence or unless there is a specified prescription period.

However, the Crownmust prove the alleged date where the time of the offence is critical and the accused may be misled by the variance and therebyprejudiced in his defence. (See the Criminal Code at sections 601(4)(d)-601(4.1)(a); and Ewaschuk at para 9:10050.) - Time is generally not material even in respect of an alibi, since the accused must respond to the particular evidence but not to thespecific date in the indictment. The accused has no right to freeze the date in the indictment.

However, time may be material where theCrown has relied on a particularized date as being essential and thereby prejudiced the accused in his or her defence. (See R v P (MB), (SCC), [1994] 1 SCR 555 at 567-68; and Ewaschuk at para 9:10050.) - Where the Crown particularizes matters not essential to the charge, e.g. the means by which the offence was committed, the Crown isnot required to prove such particulars if the offence is otherwise proved. (See Ewaschuk at para 9:10100.) [85] Time/date will be considered an essential element of the offence where there is an applicable limitation period, as withsummary conviction offences (see, for example, section 786(2) of the Criminal Code).

It may also be an essential element of an offencewhere the age of the accused or the complainant is an element, such as sexual interference and invitation to sexual touching (sections151-152 of the Criminal Code), or where the accused is relying on the defence of consent in relation to a sexual offence(section 150.1(1)). (See R v B (G), (SCC), [1990] 2 SCR 30 at 40-54.) [86] Time is not an essential element of the offence of murder. Murder is an offence whenever it is committed, and there isno limitation period in relation to the charge.

The only exception is where the accused is under the age of 12 years at the time of theoffence, because a child under 12 cannot be convicted of any offence (see

section 13 of the Criminal Code). [87] Time will also not be surplusage, such that the Crown must prove the time of the offence as set out in the indictment asparticularized, if the accused may be misled by the variance and prejudiced in his or her defence.

This can only be determined byexamining the evidence called and the positions taken by the Crown and, if disclosed, by the defence, all of which will depend on thestage of the proceedings at which the issue is being determined. 4.4 Application to the Facts [88] As noted earlier, defence counsel was objecting to the change in the Crown’s position regarding the date of the offencefrom September 30, 2004, to September 29, 2004. [89] There is a lack of clarity as to the legal nature of the particulars provided by the Crown, both sides often referring toparticulars of the Crown’s theory.

There may be an argument to be made, as suggested by the Crown, that the particulars and its changein position only related to its theory and, therefore, were not binding on it.

If that were the case, the Court had no power to order it totake any particular position or to advance any particular theory in its submissions to the jury. [90] In light of that lack of clarity on the part of the Crown regarding the legal nature of its undertakings (which the defenceconsidered to be particulars), the fact that notice of the change was given after the Crown had closed its case and the defence had begunto call its evidence, and that the date of the offence was relevant to the alibi defence being advanced by the accused, in my view, thismatter is better resolved by considering whether the accused was misled or prejudiced by the change. [91] The accused argues that his defence was prejudiced in three ways: (

a) he did not bring an anticipated motion forparticulars; (

b) he did not bring an anticipated motion to quash the indictment; and (

c) he relied on the Crown’s theory to support his alibifor the night of September 30, 2004. He had also argued earlier that he did not bring an anticipated motion for a directed verdict.

4.4.1 Motion for Particulars [92] The Crown responded to defence counsel’s indication that he would be bringing a motion for particulars, madefollowing the preliminary inquiry, by stating that it would be relying on its theory as set out at the preliminary inquiry. Defence counselaccepted this and did not proceed with a motion for particulars. [93] It is arguable that the Crown’s reply constituted oral particulars as to the date of the offence.

Even if that were the case,however, the applicable law would be that the time/date of the offence is surplusage and need not be proven unless a variance will causeprejudice to the defence.

I will address the issue of whether there was prejudice later in these reasons. [94] In my view, the trial judge correctly identified that the issue related to the change in the Crown’s position was notwhether the accused had given up the opportunity to proceed with a motion for particulars but whether the change in the date had causedprejudice to him. 4.4.2 Motion to Quash the Indictment [95] While the accused argued at several points that he was prejudiced because he did not proceed with a motion to quashthe indictment, it is unclear as to what the basis for this motion would have been. [96] A motion to quash an indictment may be taken only before the accused enters a plea, and thereafter only with theconsent of the court (see section 601(1) of the Criminal Code).

Lamer J, for the majority, stated in R v Moore, (SCC),[1988] 1 SCR 1097 at para 58, that statutory changes and jurisprudential evolution have led to a shift from requiring judges to quashindictments to requiring them to amend, with the result that “there remains little discretion to quash.” [97] This allegation of prejudice must be considered in the context of defence counsel’s following statement at the pre-charge conference: . . . THE COURT: Well, it was overnight. The Indictment says September 28th on or about. MR. GLAZER: No, I know.

And we, our agreement was we would not move to quash that on the understanding that on or aboutincludes September 30th, and Mr. Bell and I discussed that. MR. BELL: And the 29th. MR. GLAZER: And that’s why we didn’t argue. . . . [98] In my view, the indictment was not insufficient on its face, so there would have been no basis upon which to grant amotion to quash. Further, both the original indictment and the amendment set the date of the offence as being dates that were on orabout the end of September 2004, and that was consistent with the evidence of Mr.

Berens, both at the preliminary inquiry and at thetrial. [99] Thus, in my view, there was no evidence to support a motion to quash the indictment and no basis upon which to findthat the accused was prejudiced by not proceeding with that motion. 4.4.3 Motion for a Directed Verdict (Nonsuit) [100] At the pre-charge conference, defence counsel argued that he had also anticipated bringing a motion for a directedverdict. The only explanation of the basis of this motion is as follows: . . . MR.

GLAZER: I can tell you also we didn’t bring a motion for directed verdict in this case because we were relying on Crowncounsel’s undertaking as well.

THE COURT: You were going to bring a motion for directed verdict? MR. GLAZER: Well, Mr. Bell and I discussed that and I told him I wouldn’t be bringing it under the circumstances and, and he says doyou agree that on or about means September 30th, and includes -- and I said yes. And he says then you won’t bring a motion to direct averdict on that basis and I says I won’t. This is the discussion we had. So we, we’ve been relying – THE COURT: When was this discussion had? MR. GLAZER: Just before the Crown closed its case. Mr. Bell will confirm this discussion happened.

I’m not lying. . . . [101] The test to be applied on a motion for a directed verdict is the same as the test to be applied to determine whether tocommit an accused for trial—that is, the test set out in United States of America v Shephard, (SCC), [1977] 2 SCR 1067. The test is that “[t]he trial judge is not entitled to “withdraw the matter from the jury”, albeit he finds the evidence is manifestlyunreliable or dubious, if there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty”(Ewaschuk, ch 16 at para 16:4025).

In a circumstantial case, the issue is whether guilt could reasonably be inferred from thecircumstantial evidence coupled with the direct evidence. (See R v Arcuri, 2001 SCC 54 at paras 21, 25, 29; and Ewaschuk at paras16:4025-16:4040.) [102] In my view, when the Crown’s evidence is considered as a whole and without making any findings of fact or credibility,there was sufficient evidence from which a reasonable jury could infer that the offence occurred on September 29, 2004, and that theaccused was guilty.

Thus, I am of the view that a motion for a directed verdict, had it been taken, would not have succeeded; therefore,the accused was not prejudiced by not proceeding with the motion. 4.4.4 Prejudice to the Conduct of the Defence [103] Finally, the accused argues that he was prejudiced in the conduct of his defence by his reliance on the Crown’s theorythat the offence occurred on or about September 30, 2004.

Again, he provides neither details nor examples of how his defence wasprejudiced, beyond arguing that he had an alibi defence for September 30, 2004. [104] First, it must be noted that the prejudice and unfairness that are at issue here are not engaged merely because the changein the Crown’s position increases the likelihood of conviction. Rather, what is at issue is trial fairness. This was explained byMcLachlin J (as she then was) in R v Harrer, (SCC), [1995] 3 SCR 562 (at para 45): 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 fairtrial must 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 isseldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness tothe accused. (See also R v Desjarlais (DG), 2016 MBCA 69 at paras 25-26.) [105] The accused argues that the change in the Crown’s position prejudiced his alibi defence.

The Supreme Court of Canadahad occasion to comment on the effect of an alibi defence on the framing of the Crown’s case in P (MB). In that case, the trial judgepermitted the Crown to reopen its case and call further evidence after the defence opened its case and announced that it would be callingthree witnesses, including an alibi witness. The new Crown evidence related to the date of the offence and was in support of its motionto amend the date in the indictment.

While the reasons of the majority focussed on the principles regarding when the Crown can reopenits case, Lamer CJC, for the majority, made the following comments regarding amending the indictment (at p 567): The fact that an accused may have an alibi for the period (or part of the period) described in an indictment does not necessarily orautomatically “freeze” the dates specified in that indictment. That is to say, there is no vested right to a given alibi. Alibi evidence mustrespond to the case as presented by the Crown, and not the other way around. Section 601(4) of the Criminal Code, R.S.C. 1985, c.

C-46 (formerly s. 529(4)), directs a trial judge to consider certain factors in deciding whether to allow an indictment to be amended,including whether an accused has been misled or prejudiced and whether an injustice might result. . . .

. . . Nowhere does s. 601(4) say that inability to rely on a particular defence is co-extensive with irreparable “prejudice” or “injustice”, andnor can this be inferred from the language of the provision. Rather, such matters are properly left to the trial judge to consider in theparticular circumstances of a case. . . . [106] It is helpful to look at a couple of cases in which the Court has found that a change in the date of the offence made duringthe trial was prejudicial to an alibi defence.

In R v Tarnovsky (1995), (ON CA), 98 CCC (3d) 168 (Ont CA), theaccused was a school bus driver, and he was accused of sexually assaulting a student when he was escorting her in an elevator to hergrandmother’s apartment. The complainant was absolutely certain that these events occurred when she was in Grade 4, which was in1988-89. The accused testified and led evidence that he did not drive her bus that year; rather, she had a different driver. The accusedwas convicted following a charge to the jury that time was not essential.

The conviction was overturned on appeal, Doherty JA, for theCourt, finding (at p 175): The language of the indictment, the substance of the complainant’s evidence, and the [accused’s] response to the allegations, madethe time alleged in the charges critical to the case presented by the Crown and crucial to the defence.

By declaring that the time duringwhich the offences occurred was irrelevant for purposes of liability, the trial judge effectively “obliterated” the defence advanced by the[accused], fundamentally altered the nature of the allegation made against the [accused] at a point in time when he had no opportunity torespond, and effectively conscripted the [accused] against himself in support of the allegations as reframed by the trial judge in hisinstructions. [107] In R v Meunier (1999), (QC CA), 135 CCC (3d) 444 (Qc CA), the accused was charged with sexualtouching “on or about September 11, 1991” (at p 445).

In questioning its witnesses, the Crown repeatedly referred to that as being thedate of the offence, and did not argue that the date in the indictment was surplusage. In response to the Crown’s case, the defencewitnesses testified that the offence could not have occurred on that date. Without giving the defence notice, the trial judge found that theoffence occurred on a different date not covered by the alibi and convicted the accused.

The accused’s appeal was granted on the basisthat the Crown’s conduct would have led him to believe that the date was essential and that it was sufficient for him to respond to thatdate for him to be acquitted. In a similar vein, see R v O’Connor (1998), (BC CA), 123 CCC (3d) 487 (BC CA). [108] The facts in the present case are different. The conflicting evidence as to the date of the offence was called at thepreliminary inquiry.

Thus, the accused knew at that time that it would be open to the jury on the evidence to reject Ms Flett’s testimonyregarding September 30, 2004, as the date on which the deceased was picked up, taking away the alibi defence. The same evidence wascalled at the trial. If the jury had accepted Ms Flett’s evidence, then it would have had to address the cell phone alibi evidence, but thatremained available even with the change in the Crown’s position.

Thus, the change in the Crown’s position did not take away the alibifor September 30, 2004—it still remained relevant and responsive to evidence in the case. [109] More importantly, however, a review of the evidence shows that the accused’s only defence was not that the killingoccurred on September 30, 2004, and that he had an alibi that exonerated him. It is clear from the cross-examination of the Crownwitnesses and the evidence led by the defence (even before the Crown changed its theory) that the accused was relying on defences thatexcluded both September dates as the date of the offence.

In particular, he raised the following: a general denial that he killed thedeceased, whenever it happened; that the two Crown witnesses Ms Flett and Mr. Berens were each unreliable and incredible witnessesand their evidence should not be accepted; that the deceased was still alive in late October, so the killing did not take place in September;and that the deceased was killed after the accused left Winnipeg in mid-October 2004, so he could not have killed her.

This lastargument was supported by the defence evidence, including the accused’s testimony, as to the location of the blood splatter on the wallrelative to the placement of his equipment against that wall and the lack of any blood on the equipment, which he moved out onOctober 15, 2004. [110] The accused testified after defence counsel had notice of the change in the Crown’s position, so he had the opportunity torespond to that change. The accused was questioned by both his lawyer and the Crown attorney as to what he was doing on September29, 2004, so he could offer any alibi that he had for that evening.

In response to both lawyers, he denied that he was at the corner ofMain Street and Sutherland Avenue on September 29, 2004. He testified in cross-examination that he could not remember what he wasdoing that evening, but he was probably at home. [111] Although Ms Flett and Mr. Berens testified before the Crown changed its position, defence counsel conducted a lengthyand aggressive cross-examination of Ms Flett to challenge her reliability and her credibility, including many questions about her lifestyle,alcohol and drug use and her criminal record.

Ms Flett gave many answers that could lead to a finding that she was both unreliable andincredible, including that she started to use crack cocaine when she was 15 years old, that crack cocaine use affected her memory, thatthe more she used the worse her memory got and that it made her forget things. She also agreed that, when she spoke to the police inNovember 2004, she could not remember a lot of details. [112] The following exchanges between defence counsel and Ms Flett are particularly significant:

. . . Q Okay. So would you agree that your life was spent a lot of the time back then in the fall of 2004 in a fog? A In a fog? Q Yeah, in a fog induced by alcohol and cocaine? A Yeah. Q Okay. And you didn’t keep track of places you went, right? A No. Q You didn’t keep track of time, correct? A No. Q One day was basically the same as the next day, right? A Yeah. . . . Q Okay. So when the police are asking you questions November 5, 2004 about the truck, you couldn’t remember the day of the week that [the deceased] got into the truck, correct? A Correct.

Q And you, you then gave a second statement to the police six years later, on March 17th, 2010? A Um-hum, yeah. Q This time what you did was you swore on the Bible saying that what you said to them the first time was true, right? A Yeah. Q Okay. And that was the truth when you told the police that you didn’t know the date when you last saw [the deceased] getting into that truck?

A At the time, yeah. . . . Q Okay. But you believed that it was the same night as the Take Back the Night march? A Yes. Q Fair to say? A Yeah. Q Okay. You also agree you told the police that you didn’t know if [the deceased] went to the march or not; is that true? A Yeah. Q Were you telling the truth when you said that? A Yeah. Q Okay. But that’s different from what you told the jury today. You said that she went to the march with you, right? A Um-hum. Q Correct? A Yeah.

Q But back when your statement was made to the police, this was on March 17th, 2010, you told them you didn’t know if [the deceased] went to the march or not, right? A Right. Q You also told the police you weren’t sure when she went missing in relation to the march or what date that happened, right? A Right. . . .

[ 113 ] Defence counsel confirmed Ms Flett’s uncertainty again later, in the following exchange: . . . Q Okay. Now the Take Back the Night march, you said that you were with [the deceased] there – A Yeah. Q -- or at one point you said that and then you said you weren’t sure, right? A Yeah. . . . [ 114 ] It is clear from these questions on cross-examination that the accused was not adopting or relying on Ms Flett’s testimony that the deceased was with her at the march.

By these questions, the defence was making it clear that the testimony was unreliable and the jury could reject it, which would make his alibi for that evening irrelevant. More important to the issue of prejudice and unfairness, defence counsel took full advantage of the opportunity to conduct a full cross-examination of Ms Flett to challenge and attempt to discredit her testimony about the march and the date of the killing that underlay the alibi defence at issue, rather than relying on it to bolster the alibi. [ 115 ] Defence counsel also conducted a full and aggressive cross-examination of Mr.

Berens, including questioning his drug use, memory and his testimony regarding the deceased’s disappearance. Mr. Berens denied being a regular user of cocaine or having any memory problems, and he maintained his position that the deceased was not present at the march in 2004. [ 116 ] One of the main thrusts of the defence was that, even if the deceased may have been picked up as described by Ms Flett and Mr. Berens, the deceased was not killed at that time, but, rather, in mid to late October 2004.

This arose, in part, from the testimony of the four defence witnesses, all of whom stated that they had seen the deceased alive in October 2004. These four witnesses spoke to the police in early November 2004, soon after the deceased’s body had been found on November 3, 2004, while their memories were fresh. There was no suggestion that their memories were affected by alcohol and drugs. This evidence was not affected by the Crown’s change of date. [ 117 ] In terms of timing, defence counsel became aware of the change in the Crown’s position on November 3, 2015.

He took no immediate steps with the trial judge to address that change. At that point, he had begun to call defence evidence and completed his examinations of the four defence witnesses who said that they had seen the deceased, alive, in October. Their evidence was unaffected by this change. The accused testified on November 5, 2015, and he closed his case on November 6, 2015.

It was only after that that defence counsel raised this issue with the trial judge. [ 118 ] When asked what remedy he was seeking, defence counsel did not ask for an adjournment to consult his client, to recall any witnesses for further cross-examination or to call any further evidence. He was able to address the Crown’s new position in his address to the jury.

It is not at all evident that anything in the accused’s case would have changed if the Crown had notified the defence of the change in its position at an earlier date. [ 119 ] Further, the change in the Crown’s theory did not change any of the evidence that it called—its evidence on these issues at the trial was the same as it had been at the preliminary inquiry. In addition, the change did not alter the mode or manner of committing the offence—it remained murder by an unlawful act.

Finally, the accused had the opportunity to, and did, respond to the Crown’s ultimate position that he killed the deceased on that date and defence counsel was able to address the Crown’s new position in its closing to the jury. [ 120 ] In my view, the evidence and the accused’s arguments do not support a finding that the change in the Crown’s position was unfair or prejudicial to the accused’s case, or that it led to an unfair trial. 5.

Conclusion—Crown Undertaking [ 121 ] In conclusion, I am of the view that the trial judge addressed the correct issue, being whether the accused was prejudiced in his defence by the change in the Crown’s position regarding the date of the offence. He was also correct in his determination that there was no prejudice or unfairness to the accused occasioned by the change. Having made that finding, he made no error in exercising his discretion by refusing to direct the Crown to change its position regarding the date of the offence.

I would, therefore, find that the trial judge committed no errors, and I would dismiss this ground of appeal. Ground 2: Did the trial judge err in admitting the evidence obtained pursuant to search warrants related to the premises at 755 Wall

Street? 1. Background and Issues [ 122 ] The police were looking for the location at which the deceased was killed. They identified the premises at 755 Wall Street as the possible location, and they obtained a general warrant to search those premises, including searching for blood. They found projected blood stains on one wall that were identified as being blood from the deceased. [ 123 ] The accused applied, under

section 8 of the Charter , to exclude the evidence that was seized pursuant to the three warrants on the basis that they were defective on the face and invalid, rendering the searches unreasonable. Two warrants, being a general warrant and a search warrant, authorised a search of the premises at 755 Wall Street and the seizure of evidence, and the third authorised a search of cell phone records.

While there were separate motions filed in relation to the Wall Street search and the cell phone search, each motion was based on a sworn information to obtain a search warrant (ITO), sworn by the same police officer, which defence counsel described as being “sworn by the same affiant and basically are identical”. The motions were dismissed by the trial judge and all of the evidence was admitted.

On appeal, the accused is only challenging the admissibility of evidence found in the Wall Street search; there has been no appeal in relation to the admissibility of the cell phone evidence. [ 124 ] There were several issues raised at the pre-trial motion related to the exclusion of evidence seized during the Wall Street search. The accused’s position was that the underlying warrant was defective on its face because it did not contain the required reasonable grounds to justify the issuance of the warrant.

He also filed a motion to cross-examine the affiant of the ITO, arguing that the ITO contained a number of omissions and misstatements of fact that amounted to misleading information which should result in the warrant being quashed. These issues all went to the reasonableness of the search. [ 125 ] The Crown’s position was that the accused lacked standing to bring the motion to exclude the evidence from the Wall Street search. The accused raised two issues concerning the evidence related to standing.

First, he argued that the ITO could not form part of the evidence in that hearing and that standing had to be determined without reference to it. He also argued that the ITO contained inadmissible hearsay from the landlord of the Wall Street premises, Bill Taylor. The accused wanted to challenge the use of that information, so the Crown agreed to call Mr. Taylor to testify at the hearing. Unfortunately, Mr. Taylor died before the hearing, so the Crown applied to have a recorded statement made by Mr.

Taylor to the police admitted as an exception to the hearsay rule. [ 126 ] The trial judge found against the accused on all issues. He found Mr. Taylor’s statement to the police was substantively admissible to determine standing, that the accused lacked standing to challenge the Wall Street warrant and that it was not defective on its face. He dismissed both motions to exclude the evidence that had been seized and determined that the evidence from both searches was admissible. [ 127 ] On appeal, the accused argues that the trial judge erred as follows: (

i) by considering the ITO on the question of standing; (ii) by admitting Mr. Taylor’s statement for proof of the truth of the contents; and (iii) by finding that the accused lacked standing to challenge the warrant. 2. Analysis—Search Warrant Evidence 2.1 The Use of the ITO 2.1.1 Background [ 128 ] The trial judge found, in essence, that the accused had filed one motion to exclude the evidence seized in the Wall Street search on the basis that the warrant was defective, and that the ITO was filed in support of that motion.

He pointed to several cases from other jurisdictions in which the courts referred to information from ITOs in determining the issue of standing, and found that it was open to him to follow that same procedure. He rejected the accused’s position that he should ignore the ITO to determine standing, but consider it on the issue of the validity of the warrant. [ 129 ] On appeal, the accused argues that there were, in essence, two voir dires —one to determine standing and another to determine the validity of the warrant.

He argues that the only evidence that he filed on the issue of standing was his lease related to the Wall Street premises, and that the ITO was filed exclusively in relation to the validity of the warrant. He disputes the applicability of the jurisprudence on which the trial judge relied on the basis that, in each of those cases, the defence had not objected to the use of the ITO to determine standing. [ 130 ] While the Crown does not agree with the accused’s position, it argues that, even if the trial judge erred and should have granted the accused standing to challenge the Wall Street warrant, that chall

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