R. v. Bernardo (P.K.), (2000) 130 O.A.C. 388 (CA)

• Judge: Laskin, Moldaver and MacPherson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 27, 2000
• Jurisdiction: Ontario
• Citations: (2000), 130 O.A.C. 388 (CA)

R. v. Bernardo (P.K.) (2000), 130 O.A.C. 388 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. MR.075

Her Majesty The Queen (respondent) v. Paul Kenneth Bernardo (appellant)

(C29343)

Indexed As: R. v. Bernardo (P.K.)

Ontario Court of Appeal

Laskin, Moldaver and MacPherson, JJ.A.

March 29, 2000.

Summary:

The accused was convicted of, inter alia, two counts of first degree murder following the kidnapping, confinement, sexual assault, torture and murder of two young women. At trial, the accused admitted participating in the abduction, confinement and sexual as­sault, but submitted that his accomplice, Homolka, had murdered the women when he was not present. The accused appealed.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: for related cases see 77 O.A.C. 20, [1997] O.A.C. Uned. 150, 105 O.A.C. 244, 108 O.A.C. 93 and 108 O.A.C. 97.

Civil Rights - Topic 4401

Protection against self-incrimination - Self-incriminating testimony - General - [See Criminal Law - Topic 4961 ].

Criminal Law - Topic 1266

Offences against person and reputation - Murder - Jury charge - Included or alterna­tive offences - Bernardo was convicted of, inter alia, two counts of first degree mur­der - The Crown's theory was that he was guilty as a principal - Alternatively, if Homolka (Bernardo's alleged accomplice) had been the principal, Bernardo was still guilty as a party to her offences - If Ber­nardo was a party to the killings, verdicts of second degree murder and manslaughter were possibilities - Bernardo appealed arguing, inter alia, that the trial judge left the jury with the erroneous impression that in order to find him not guilty of first degree murder, they had to be satisfied beyond a reasonable doubt that Homolka was the principal - He argued that they should have been told that if they believed or had a reasonable doubt that he was not the principal, then, depending upon their findings, the jury could acquit him of first degree murder and find him guilty of the lesser and included offences of second degree murder or manslaughter - The On­tario Court of Appeal rejected the argu­ment - The trial judge chose a different route than that suggested by Bernardo but conveyed precisely the same message - See paragraphs 23 to 33.

Criminal Law - Topic 4316

Procedure - Jury - General - Challenges for cause - An accused argued that the plain meaning of s. 635(1) of the Criminal Code was that both parties must exhaust both challenges - for cause and peremptory - with alternating prospective jurors before the other side was called upon to make its declaration - Therefore, once the trial judge had approved of the accused's pro­posed questions for a challenge for cause of prospective jurors, the Crown should have been required to make its decision, with respect to alternating prospective jurors, on whether to challenge peremptori­ly before the challenge for cause took place - The trial judge stated that the ac­cused's interpretation of s. 635(1) was "not illogical nor without merit" but ordered that the challenge for cause follow the same procedure as had been followed in Ontario for many years - The Crown and defence would be asked to use their peremptory challenges after each prospec­tive juror was challenged for cause - The Ontario Court of Appeal agreed with the trial judge's interpretation of s. 635(1) - See paragraphs 46 to 57.

Criminal Law - Topic 4316

Procedure - Jury - General - Challenges for cause - The Ontario Court of Appeal re­viewed the difference between a challenge for cause and a peremptory challenge - See paragraphs 51 to 53.

Criminal Law - Topic 4320

Procedure - Jury - General - Peremptory challenges - [See both Criminal Law - Topic 4316 ].

Criminal Law - Topic 4351

Procedure - Jury directions - Directions regarding burden of proof and reasonable doubt - [See Criminal Law - Topic 1266 ].

Criminal Law - Topic 4354

Procedure - Jury directions - Directions regarding pleas of witnesses, co-accused or accomplices - Bernardo was convicted of, inter alia, two counts of first degree mur­der - He argued at trial that his ac­complice, Homolka, had murdered the victims - Homolka was the Crown's main witness - In its examination-in-chief, the Crown reviewed Homolka's plea agree­ment and entered it as an exhibit - Several clauses required that Homolka provide a full and truthful account of her involve­ment in the murders, failing which she could be prosecuted for various criminal offences - A clause also provided that the Crown could terminate the agreement if it learned that she caused the deaths of any person - Bernardo appealed, arguing, inter alia, that the trial judge should have told the jury that they could not use the clauses in the agreement that addressed sanctions for not telling the truth as a signal of the Crown's satisfaction that Homolka had not caused any deaths - The Ontario Court of Appeal rejected the argument - There was no improper vouching on the Crown's part - Moreover, Crown counsel had sought to distance himself from the agreement and had told the jury that, on her own evi­dence, Homolka was guilty of first degree murder - See paragraphs 39 to 45.

Criminal Law - Topic 4357.2

Procedure - Jury directions - Directions re letters of immunity - [See Criminal Law -Topic 4354 ].

Criminal Law - Topic 4961

Appeals - Indictable offences - New trials -Grounds - Abusive or improper cross-examination by Crown - Bernardo was convicted of, inter alia, two counts of first degree murder following the kidnapping, confinement, sexual assault, torture and murder of two young women - At trial, he testified about an incident where he had released a hitchhiker after kidnapping and sexually assaulting her - In cross-examina­tion the Crown suggested that his evidence was false and then asked him whether he knew that this evidence could not be used against him at a subsequent trial because of s. 13 of the Charter - Bernardo appealed, arguing, inter alia, that the Crown's cross-examination was improper and prejudicial and the trial judge should have instructed the jury that they could not infer that his evidence was influenced by s. 13 of the Charter - The Ontario Court of Appeal rejected the argument - The cross-examina­tion caused no prejudice where the incident was inconsequential to this trial - See paragraphs 20 to 23.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - Bernardo was convicted of, inter alia, two counts of first degree murder - The Crown called evidence from former girl­friend (JG) who alleged that while Bernar­do raped her, he had placed a twine around her neck and pulled on it - The trial judge permitted this evidence to support testi­mony from Homolka, Bernardo's alleged accomplice, about Bernardo's use of a ligature on the murder victims - He con­cluded that the probative value of the evidence outweighed its prejudicial effect -Bernardo appealed, arguing, inter alia, that this evidence was highly prejudicial and was not probative of who killed the vic­tims and should not have been admitted - The Ontario Court of Appeal rejected the argument - The evidence had some proba­tive value and its prejudicial effect was minimal - Bernardo's conduct towards JG was far less serious than that with which he was charged and would have had little effect on the jury's deliberations - The trial judge adequately instructed the jury on the limited use of the evidence - See para­graphs 5 to 12.

Evidence - Topic 4023

Witnesses - General - Credibility - Oath-helping - Bernardo was convicted of, inter alia, two counts of first degree murder - The trial judge permitted the Crown to call expert psychiatric evidence concerning its main witness, Homolka (Bernardo's al­leged accomplice) - It explained the bat­tered woman syndrome and the associated posttraumatic stress disorder - Bernardo appealed arguing, inter alia, that this evi­dence should not have been admitted be­cause it amounted to oath-helping and no expert testimony was needed to explain Homolka's conduct because she herself testified why she acted as she did - The Ontario Court of Appeal rejected the argu­ment - The expert evidence helped the jury to determine whether there was an ex­planation for what might be regarded as conduct by Homolka that was inconsistent with that of a truthful witness and helped them assess her credibility - The expert evidence might have bolstered Homolka's credibility but that did not make it evi­dence any less admissible - See paragraphs 13 to 19.

Evidence - Topic 4023

Witnesses - General - Credibility - Oath-helping - [See Criminal Law - Topic 4354 ].

Evidence - Topic 5206

Witnesses - Corroboration - General prin­ciples - Similar fact evidence as cor­roboration - [See Criminal Law - Topic 5213 ].

Evidence - Topic 7054

Opinion evidence - Expert evidence - Particular matters - Battered wives - [See first Evidence - Topic 4023 ].

Cases Noticed:

R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 116 C.C.C.(3d) 481 (C.A.), refd to. [para. 8].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402, refd to. [para. 15].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97, refd to. [para. 17].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 85 C.C.C.(3d) 193, refd to. [para. 18].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 36].

R. v. Aguilera (1993), 87 C.C.C.(3d) 474 (Ont. Gen. Div.), refd to. [para. 48].

R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1; 124 C.C.C.(3d) 481, refd to. [para. 51].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 635(1) [para. 46].

Counsel:

Gregory Brodsky, Q.C., Paul Burstein, James Stribopoulos and Anthony Bryant, for the appellant;

James Ramsay, Shawn Porter and Michal Fairburn, for the respondent.

This appeal was heard on March 27, 2000, before Laskin, Moldaver and MacPherson, JJ.A., of the Ontario Court of Appeal, who released the following decision on March 29, 2000.