R. v. Hall (C.), (2010) 269 O.A.C. 199 (CA)

• Jurisdiction: Ontario
• Judge: Feldman, Simmons and Epstein, JJ.A.
• Neutral Citation: 2010 ONCA 724
• Citation: (2010), 269 O.A.C. 199 (CA),2010 ONCA 724,263 CCC (3d) 5,[2010] OJ No 4603 (QL),269 OAC 199,269 O.A.C. 199,[2010] O.J. No 4603 (QL),(2010), 269 OAC 199 (CA)
• Date: 29 October 2010
• Court: Court of Appeal (Ontario)

R. v. Hall (C.) (2010), 269 O.A.C. 199 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. NO.002

Her Majesty the Queen (respondent) v. Carl Hall (appellant)

(C46090; C45057; 2010 ONCA 724)

Indexed As: R. v. Hall (C.)

Ontario Court of Appeal

Feldman, Simmons and Epstein, JJ.A.

October 29, 2010.

Summary:

The Ontario Superior Court convicted the accused of first degree murder. He appealed.

The Ontario Court of Appeal allowed the appeal, ordering a new trial.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - The victim died after a night of partying with Hall and others - DNA analysis revealed Hall's semen in the victim's vagina and on the outside of her underwear - The Crown's theory was that Hall had killed the victim during a sexual assault - Hall asserted that he had consensual sex with the victim, had ejaculated into her underwear (that she had removed) at her request and that, afterward, they had returned to a party - Alternatively, Hall asserted that Lane, who was also present at the party, was the murderer - Hall was convicted by a jury of first degree murder - He appealed, asserting, inter alia, that the trial judge had erred by failing to properly set out the defence position and to direct the jury's attention to evidence that supported that position - The Ontario Court of Appeal allowed the appeal, ordering a new trial - While the primary defence position was simple, it consisted of several elements, some of which were nuanced, and required explanation - A cursory description that failed to even mention the theory of consensual sex and that also failed to describe the evidence capable of supporting that theory was simply not adequate to fairly present the defence position - The trial judge recited the witnesses' evidence without explaining how that evidence connected to the defence's theory - Further, she failed to point out the evidence supporting the theory that Lane was the killer - The trial judge erred in law by failing to fully explain the defence's position and to outline the evidence that was capable of supporting it - See paragraphs 93 to 115.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - The victim died after a night of partying with Hall and others - DNA analysis revealed Hall's semen in the victim's vagina and on the outside of her underwear - The Crown's theory was that Hall had killed the victim during a sexual assault - Hall asserted that he had consensual sex with the victim, had ejaculated into her underwear (that she had removed) at her request and that, afterward, they had returned to a party - Alternatively, Hall asserted that Lane, who was also present at the party, was the murderer - Hall was convicted by a jury of first degree murder - He appealed, asserting, inter alia, that the trial judge had erred by (1) not giving any instruction regarding Lane's alleged inculpatory post-offence conduct and only giving instruction on Hall's post-offence conduct, leaving the jury with an unbalanced picture; and (2) failing to instruct the jury that Lane's post-offence conduct could be used in determining whether the jury had a reasonable doubt that Hall was the killer - The Ontario Court of Appeal allowed the appeal, ordering a new trial - The trial judge had not erred in not giving a post-offence conduct charge in regard to Lane's conduct as an alternate suspect - However, the jury was left with no legal context in which to analyze Lane's conduct in contrast to the post-offence conduct instruction related to Hall - What was required was an instruction that, if the evidence of Lane's post-offence conduct left the jury with a reasonable doubt that Hall was the killer, then they had to acquit - See paragraphs 178 to 185.

Criminal Law - Topic 4365

Procedure - Charge or directions - Jury or judge alone - Directions regarding expert evidence - The victim died after a night of partying with Hall and others - DNA analysis revealed Hall's semen in the victim's vagina and on the outside of her underwear - The Crown's theory was that Hall had killed the victim during a sexual assault - Hall asserted that he had consensual sex with the victim, had ejaculated into her underwear (that she had removed) at her request and that, afterward, they had returned to a party - A Crown expert provided semen leakage evidence, stating that normally there would have been leakage from the victim's vagina into the inside of her underwear if she had walked upright after sex - There were some inconsistencies between the expert's evidence at trial and her evidence at the preliminary inquiry - Hall was convicted by a jury of first degree murder - He appealed, asserting, inter alia, that the trial judge had erred in permitting the expert to give the evidence on semen leakage and in her instructions to the jury on this issue - The Ontario Court of Appeal rejected this ground of appeal - The evidence was not a subject beyond the expert's expertise as a forensic pathologist - The trial judge gave standard instructions relating to "prior inconsistent statements of a non-accused witness" - There was no air of reality to the suggestion that the jury would not have applied those instructions to the expert's evidence - Nor had the judge erred in refusing to re-charge the jury on this issue as requested or in failing to instruct the jury on how to weigh conflicting expert opinions - See paragraphs 64 to 87.

Criminal Law - Topic 4372

Procedure - Charge or directions - Jury or judge alone - Directions respecting alibi evidence or explanation by accused - The Ontario Court of Appeal discussed the distinction between a disbelieved exculpatory statement by an accused and a fabricated statement and the need for independent evidence of fabrication - Evidence that, if accepted, would result in the rejection of the accused's evidence as unworthy of belief was not to be equated with evidence of fabrication - If the trial judge concluded that there was sufficient independent evidence of fabrication and the alibi or exculpatory statement was admitted, then the judge had to provide a "Parrington" charge (R. v. Parrington (1985 Ont. C.A.)) - A Parrington charge was, in effect a "D.W." (R. v. D.W. (1991 S.C.C.)) charge that related specifically to alibi evidence - The trial judge had to direct the jurors that if they did not believe the alibi or exculpatory statement, or if they were not left with a reasonable doubt by it, they had to disregard that evidence and decide the case based only on the balance of the evidence - If they were satisfied that the accused fabricated the alibi or exculpatory evidence as post-offence conduct, then they were entitled to use the finding of fabrication as a piece of evidence in determining guilt or innocence, that is, as circumstantial post-offence conduct evidence that had to be weighed together with all of the evidence - As the distinction between disbelieving an alibi and finding deliberate fabrication was a difficult concept, it was critical for the trial judge to clearly explain the difference and to identify what evidence was capable of being independent evidence of fabrication - See paragraphs 156 to 167.

Criminal Law - Topic 4372

Procedure - Charge or directions - Jury or judge alone - Directions respecting alibi evidence or explanation by accused - The victim died after a night of partying with Hall and others - DNA analysis revealed Hall's semen in the victim's vagina and on the outside of her underwear - Hall gave a statement to police, asserting that he had consensual sex with the victim on the evening of her death and that he had left her alive at a party - Hall was charged with murder - At trial, the Crown suggested that Hall had fabricated his story in order to provide an innocent, but false, explanation for his semen's presence - The Crown linked the police statement to a conversation that Hall had with his ex-girlfriend where he asked her to tell the police that he was with her for the entire night - The Crown told the jury that Hall was lying to give himself an alibi - Hall was convicted of first degree murder - The Ontario Court of Appeal allowed Hall's appeal, ordering a new trial - Hall's statement to police was admitted as an alleged fabricated exculpatory statement without regard to the legal principles governing its admissibility as such and without charging the jury on the proper approach to its use - Taken together with errors in the trial judge's instructions regarding evidence of post-offence conduct, these were reversible errors - The trial judge failed to give any instruction on what evidence, if any, the jury could consider as independent evidence that Hall's exculpatory statement was fabricated - Nor was the jury told that there was a difference between disbelieving an exculpatory statement, in which case that evidence was to be ignored, versus a finding of fabrication, which could permit the statement to be used to determine guilt or innocence - Nor was a "Parrington" charge (R. v. Parrington (1985 Ont. C.A.)) given - Rather than addressing the factual shortcomings of the Crown's false alibi allegations and without giving the jury the law on false alibi or the use of fabricated exculpatory statements, the trial judge left the Crown's position on fabrication to the jury to use without the clear guidance required - These were very serious omissions where the evidence was entirely circumstantial and where the Crown relied heavily on the fabrication allegation - See paragraphs 168 to 177.

Criminal Law - Topic 4375.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding exculpatory statements by accused - [See both Criminal Law - Topic 4372].

Criminal Law - Topic 4375.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior inconsistent statements - The trial judge gave the jury a standard instruction concerning how to approach prior convictions of non-accused witnesses - She told the jury that the instruction applied to a specific list of witnesses "who admitted that they have previously been convicted of various criminal offences" - The trial judge then said, "[This instruction] does not apply to [the accused]" - The accused was convicted of first degree murder - He appealed, asserting, inter alia, that this instruction had the effect of conveying to the jury that the accused had a criminal record and that the instruction was both improper and prejudicial - The Ontario Court of Appeal rejected this ground of appeal - The trial judge began this instruction with the following words: "Let's talk a bit about previous convictions of non-accused witnesses. That is, the criminal records that were introduced" - She then set out the list of witnesses to whom the instruction applied and made the impugned comment, "It does not apply to [the accused]" - Read fairly, the trial judge was doing no more than making it abundantly clear to the jury that the instruction did not apply to the accused - Further, no suggestion was made at the trial that the accused had a criminal record - Moreover, the jury was given standard instructions to act only on the evidence led and not to speculate - The jury would not have leapt to the conclusion that the accused had a criminal record - See paragraphs 88 to 92.

Criminal Law - Topic 4375.5

Procedure - Charge or directions - Jury or judge alone - Directions re prior misconduct or convictions - [See Criminal Law - Topic 4375.2].

Criminal Law - Topic 4382

Procedure - Charge or directions - Jury or judge alone - Misdirection - What constitutes - [See both Criminal Law - Topic 4357, second Criminal Law - Topic 4372 and second Criminal Law - Topic 4399.9].

Criminal Law - Topic 4391

Procedure - Charge or directions - Jury or judge alone - Redirection or further direction - [See Criminal Law - Topic 4365].

Criminal Law - Topic 4392

Procedure - Charge or directions - Jury or judge alone - Directions re inferences of guilt (incl. consciousness of guilt) - [See second Criminal Law - Topic 4399.9].

Criminal Law - Topic 4399.1

Procedure - Charge or directions - Jury or judge alone - Directions re false statements by accused - [See both Criminal Law - Topic 4372].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The Ontario Court of Appeal summarized the law regarding the significance of post-offence conduct - Evidence of post-offence conduct was not evidence of the commission of a crime or its planning, which a jury could assess to determine the facts of an event and the identity of the perpetrator - Rather, it was evidence of what someone did after an event, which proved nothing directly, but from which the jury was asked to conduct a psychological analysis of what a person logically would or might do in given circumstances - Post-offence conduct was like circumstantial evidence that might be subject to competing interpretations - However, it was unlike circumstantial evidence in a very significant way: "Other circumstantial evidence, such as the classic example of wet ground in the morning, need only be consistent with a conclusion that a certain fact occurred, e.g., that it rained overnight. That fact might be an important piece of the Crown's case. But it is just one piece that, together with others, may prove guilt beyond a reasonable doubt. The difference with post-offence conduct circumstantial evidence is that, to be evidence that meets the circumstantial evidence test, it must be consistent only with the ultimate conclusion of guilt. It is the requirement of meeting the test for circumstantial evidence that creates the impression of a tautological analytical exercise by the jury. That is why it is so important for the jury to assess the post-offence conduct only as part of its ultimate assessment in weighing all of the evidence at the stage of determining whether guilt has been proved beyond a reasonable doubt, rather than treating it as a separate category" - See paragraphs 130 to 149.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The victim died after a night of partying with Hall and others - DNA analysis revealed Hall's semen in the victim's vagina and on the outside of her underwear - The Crown's theory was that Hall had killed the victim during a sexual assault - Hall asserted that he had consensual sex with the victim, had ejaculated into her underwear (that she had removed) at her request and that, afterward, they had returned to a party - Hall was convicted by a jury of first degree murder - He appealed, asserting, inter alia, that the trial judge had erred in her instructions regarding certain evidence of post-offence conduct (two conversations that the accused had with his ex-girlfriend) - The Ontario Court of Appeal allowed the appeal, ordering a new trial - The instruction directed the jury to decide whether Hall had engaged in the post-offence conduct because he was conscious that he had committed the offence - The jury was thus invited to jump directly to the issue of guilt as a precondition to deciding the use that they would make of the post-offence conduct evidence - The instruction ran afoul of the ruling in R. v. White (R.G.) and Côté (Y.) (1998 S.C.C.) that the jury was not to treat post-offence conduct as a special category of circumstantial evidence, but rather was only to weigh the post-offence conduct evidence together with the rest of the evidence - Standing on its own, this flaw was not reversible error - However, there were other deficiencies related to the trial judge's failure to articulate the theory of why the second of the accused's conversations should be linked with guilt and to explain to the jury possible alternative and innocent explanations for the accused's statements - The jury was left without the tools to properly analyze and weigh the significance of the conversations as post-offence conduct - See paragraphs 140 to 155.

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See both Criminal Law - Topic 4357, second Criminal Law - Topic 4372 and second Criminal Law - Topic 4399.9].

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - [See first Criminal Law - Topic 4399.9].

Criminal Law - Topic 5313

Evidence and witnesses - Inferences - Of consciousness of guilt - From falsehoods - [See both Criminal Law - Topic 4372].

Evidence - Topic 336

Circumstantial evidence - Evidence of consciousness of guilt - [See first Criminal Law - Topic 4399.9].

Cases Noticed:

R. v. Mahalingan (R.) (2006), 209 O.A.C. 198; 80 O.R.(3d) 35 (C.A.), refd to. [para. 98].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd. [para. 98].

R. v. Azoulay, [1952] S.C.R. 495, refd to. [para. 99].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1; 125 C.C.C.(3d) 385, refd to. [para. 130].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226 (C.A.), refd to. [para. 130].

R. v. Ménard (S.) (1998), 228 N.R. 100; 111 O.A.C. 1; 125 C.C.C.(3d) 416 (S.C.C.), refd to. [para. 145].

R. v. O'Connor (P.) (2002), 166 O.A.C. 202; 62 O.R.(3d) 263 (C.A.), refd to. [para. 160].

R. v. Coutts (S.) et al. (1998), 110 O.A.C. 353; 126 C.C.C.(3d) 545 (C.A.), refd to. [para. 162].

R. v. Baltovich (R.) (2004), 192 O.A.C. 366; 73 O.R.(3d) 481 (C.A.), refd to. [para. 164].

R. v. Pollock (R.) et al. (2004), 188 O.A.C. 37; 187 C.C.C.(3d) 213 (C.A.), refd to. [para. 165].

R. v. Parrington (1985), 9 O.A.C. 76; 20 C.C.C.(3d) 184 (C.A.), refd to. [para. 166].

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397 (S.C.C.), refd to. [para. 166].

R. v. Polimac (M.) (2010), 262 O.A.C. 91; 2010 ONCA 346, dist. [para. 170].

Authors and Works Noticed:

Watt, David, Ontario Specimen Jury Instructions (Criminal) (2005), generally [para. 81]; p. 72 [para. 144].

Counsel:

Delmar Doucette and Joanne McLean, for the appellant;

Lucy Cecchetto and Joanne Stuart, for the respondent.

This appeal was heard on April 12-14, 2010, by Feldman, Simmons and Epstein, JJ.A., of the Ontario Court of Appeal. On October 29, 2010, Feldman and Simmons, JJ.A., released the following judgment for the court.