R. v. Terceira (J.), (1998) 107 O.A.C. 15 (CA)

• Judge: Brooke, Finlayson and McKinlay, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 02, 1998
• Jurisdiction: Ontario
• Citations: (1998), 107 O.A.C. 15 (CA);1998 CanLII 2174 (ON CA);38 OR (3d) 175;123 CCC (3d) 1;15 CR (5th) 359;[1998] OJ No 428 (QL);107 OAC 15

R. v. Terceira (J.) (1998), 107 O.A.C. 15 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. MR.014

Her Majesty the Queen (respondent) v. John Terceira (appellant)

(C15459)

Indexed As: R. v. Terceira (J.)

Ontario Court of Appeal

Brooke, Finlayson and McKinlay, JJ.A.

February 9, 1998.

Summary:

The accused was convicted of first degree murder and sentenced to life imprisonment with minimum parole eligibility after 25 years. The accused appealed from his con­viction.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 4352.2

Procedure - Charge or directions to jury - Scientific evidence - DNA evidence - An accused appealed his first degree murder conviction, asserting that the trial judge erred in instructing the jury on DNA evi­dence - The accused asserted that the trial judge should have directed the jury that "if the experts are in a quandary and the jury is in a quandary then they are simply to set it aside" - The Ontario Court of Appeal rejected the assertion - See para­graphs 62, 63 - The court stated that the trial judge should advise the jury in the normal way as to the limits of the expert evidence and the use to which it can be put - Additional­ly, in the case of DNA evidence, the judge would be well advised to instruct the jury not to be overwhelmed by the aura of scientific infallibility asso­ciated with scien­tific evidence - The judge should tell them to use their com­mon sense in their as­sessment of all of the evidence on the DNA issue and determine if it is reliable and valid as circumstantial evidence - See paragraph 65.

Criminal Law - Topic 4516

Procedure - Trial - Special duties of Crown - Splitting Crown's case - An ac­cused was charged with first degree mur­der - The defence asserted that the victim suffered an epileptic seizure trig­gered by a sexual assault and a preexist­ing head injury - A Crown pathologist testified that the injury was not related to the preexist­ing injury - He was cross-examined and re-examined respecting the link between head injuries, epileptic seiz­ures and asphyxia - The defence subsequently called another pathologist who testified that the preexist­ing injury could have triggered an epileptic seizure which might have caused asphyxia - The trial judge permitted the Crown to call reply evidence - The Ontario Court of Appeal affirmed the decision - The Crown did not split its case - The Crown was not changing its position, but maintaining it by reacting to a defence witness who sug­gested a different cause of death - See paragraphs 83 to 93.

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - An accused was charged with first degree murder - Police advised a witness of errors in her memory and ar­ranged for her to be hypnotized - The accused objected to the admissibility of the witness's evidence - The focus of a voir dire was on the police advising the witness of the errors in her memory - The trial judge admitted the evidence - The accused appealed his subsequent conviction, chal­lenging the admissibility of hypnotically refreshed testimony - The Ontario Court of Appeal rejected the challenge - Defence counsel did not question the reliability of the hypnosis, but chose to vigorously cross-examine the witness and had the trial judge instruct the jury that special caution should be exercised in assessing the evi­dence - Accordingly, the effect of hypnosis was a matter going to weight to be decided by the jury - See paragraphs 74 to 82.

Criminal Law - Topic 5202.1

Evidence and witnesses - General - Admissibility - Burden of proof - An accused was charged with first degree murder - The trial judge held a voir dire to determine the admissibility of DNA evi­dence - DNA profiling was, at the time, a novel scientific technique - On appeal from conviction, the issue arose as to the ap­propriate standard of proof on the voir dire - The Ontario Court of Appeal held that the trial judge correctly applied the stand­ard of a balance of probabilities to findings of facts - The issue of reliabil­ity respecting novel scientific theory or technique related strictly to a question of the admissibility of evidence where proof on a balance of probabilities was an acceptable standard - See paragraph 45.

Criminal Law - Topic 5203

Evidence and witnesses - Admissibility of exculpatory evidence - An accused sought to introduce into evidence an exculpatory statement made to police upon arrest - The accused asserted that the statement was a continuation of earlier statements; part of the "res gestae"; required to rebut the Crown's anticipated allegation of recent fabrication; a prior consistent statement; and required to make full answer and defence - The Ontario Court of Appeal affirmed the refusal to admit the statement - The statement was one of a number of exculpatory statements - No new or help­ful information would be provided - Too much time had elapsed to support a sug­gestion that it was part of a continuum of statements - The accused never accepted the invitation to revisit the ruling if the Crown raised the issue of recent fabrica­tion - The accused did not object to the line of questioning nor did it ask to re-examine on the statement - See paragraphs 67 to 73.

Criminal Law - Topic 5214.9

Evidence and witnesses - Admissibility and relevancy - Voir dire - General - [See Criminal Law - Topic 5202.1 ].

Criminal Law - Topic 5583

Evidence and witnesses - Scientific and medical evidence - Standard of proof - [See Criminal Law - Topic 5202.1 ].

Criminal Law - Topic 5585

Evidence and witnesses - Scientific and medical evidence - DNA evidence - An accused appealed his conviction for first degree murder, asserting that the trial judge failed to properly determine, as a preliminary matter, the admissibility of DNA evidence proffered by the Crown -DNA profiling was, at the time, a novel scientific technique - The accused asserted that the trial judge failed to make findings as to the reliability of the Crown's expert and the weight to be given to her evidence - The Ontario Court of Appeal rejected the assertion - The trial judge was not obliged to be satisfied beyond a reasonable doubt that the expert's testimony was reliable - Given that the technology existed and was generally accepted in the scientific com­munity, the contest as to the validity of its application to the case was a matter for the jury to assess - See para­graphs 31, 32.

Criminal Law - Topic 5585

Evidence and witnesses - Scientific and medical evidence - DNA evidence - An accused appealed his conviction for first degree murder, asserting that the trial judge failed to properly determine, as a preliminary matter, the admissibility of DNA evidence proffered by the Crown -DNA profiling was, at the time, a novel scientific technique - The accused, relying on R. v. Mohan (S.C.C.), asserted that before a jury can be permitted to hear the evidence of the DNA testing, the trial judge was required to conduct a "Mohan type hearing" to satisfy himself or herself beyond a reasonable doubt as to the relia­bility of the evidence - The Ontario Court of Appeal rejected the assertion - Mohan did not introduce, as a precondition to admissibility, a new standard of proof in the scrutiny of opinion evidence respecting novel scientific theory or technique - See paragraphs 19, 20 and 45 to 54.

Criminal Law - Topic 5585

Evidence and witnesses - Scientific and medical evidence - DNA evidence - A voir dire was held to determine the admis­si­bility of DNA evidence - The trial judge qualified a witness as an expert and dealt with challenges to her evidence on the basis that they went largely to weight and interpretation and not admissibility - The Ontario Court of Appeal affirmed the decision - The trial judge's scrutiny was limited to satisfying himself that the evi­dence was sufficiently reliable and should be received - Whether the conclusions were reasonable was a matter for the jury -See paragraph 36.

Criminal Law - Topic 5585

Evidence and witnesses - Scientific and medical evidence - DNA evidence - An accused was charged with first degree murder - The trial judge admitted DNA evidence - On appeal from conviction, the accused asserted that opinion of the Crown's expert witness on DNA evidence, was inadmissible because the Crown did not call as witnesses the technicians and other persons upon whose research and reports the expert witness relied - The Ontario Court of Appeal rejected the asser­tion - To the extent that her opinions could be criticised for reliance upon other per­sons' work, it was only the sufficiency of her testimony that was engaged, not its admissibility - See paragraphs 37 to 40.

Criminal Law - Topic 5585

Evidence and witnesses - Scientific and medical evidence - DNA evidence - An accused appealed his conviction for first degree murder, asserting that the trial judge failed to properly determine, as a preliminary matter, the admissibility of DNA evidence - DNA profiling was, at the time, a novel scientific technique - At issue was whether the trial judge satisfied him­self that the DNA evidence (accepting it as novel) met a basic threshold of relia­bility -In dismissing the appeal, the Ontario Court of Appeal stated that the process of ar­riving at the point where a trial judge is satisfied as to the threshold of reliability for novel scientific theory or technique should be flexible - While the standard of scrutiny varies depending upon how close the evidence approaches an opinion on an ultimate issue, the evalu­ation is particular to the case - DNA matches do not decide an ultimate issue, but are a significant piece of circumstantial evidence - See paragraph 60.

Criminal Law - Topic 5585

Evidence and witnesses - Scientific and medical evidence - DNA evidence - An accused was charged with first degree murder - The trial judge admitted DNA evidence into evidence - At the time, DNA profiling was a novel scientific tech­nique -On appeal from conviction, the accused asserted that the probative value of num­bers reflecting the statistical rarity of a match in the general population was out­weighed by its potential for unfair preju­dice - The Ontario Court of Appeal held that there should not be an absolute prohi­bition against the introduction of specific match figures - The matter should be left to the discretion of the trial judge in the particular case - In this case it was justifi­able to admit the evidence - See para­graphs 41 to 43.

Criminal Law - Topic 5585

Evidence and witnesses - Scientific and medical evidence - DNA evidence - [See Criminal Law - Topic 5202.1 ].

Evidence - Topic 507

Presentation of evidence - Failure to object - Effect of (incl. judge's duty) - [See Criminal Law - Topic 5203 ].

Evidence - Topic 515

Presentation of evidence - Reply to rebut­tal evidence - [See Criminal Law - Topic 4516 ].

Evidence - Topic 1031

Relevant facts, relevance and materiality - Admissibility - Prior consistent statements - [See Criminal Law - Topic 5203 ].

Evidence - Topic 1130

Relevant facts, relevance and materiality - Relevance of evidence offered - Prior consistent statements - [See Criminal Law - Topic 5203 ].

Evidence - Topic 1176

Relevant facts, relevance and materiality - Res gestae (incl. narrative) - General - [See Criminal Law - Topic 5203 ].

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - The Ontario Court of Appeal affirmed a trial judge's ruling that a witness qualified as an expert - The trial judge was only required to be satisfied that the witness possessed suffi­cient skill, knowledge or experience con­cerning the subject matter of her expertise and that the proffered opinion would likely aid the trier of fact in reaching a just determination - The condition was sat­isfied if the witness possessed special knowledge "going beyond that of the trier of fact" - The witness's curriculum vitae supported such a finding - See paragraph 35.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - In the context of a criminal case, the Ontario Court of Appeal stated proof on a balance of prob­abilities applied to the qualification of an expert witness even where the science was novel - See paragraphs 46, 47.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - [See first and third Criminal Law - Topic 5585 ].

Evidence - Topic 7010.1

Opinion evidence - Expert evidence - General - Evidence of new medical or scientific doctrines - [See Criminal Law - Topic 5202.1 , second and fifth Criminal Law - Topic 5585 and second Evidence - Topic 7001 ].

Evidence - Topic 7012

Opinion evidence - Expert evidence - General - Basis for opinion - [See fourth Criminal Law - Topic 5585 ].

Evidence - Topic 7016

Opinion evidence - Expert evidence - General - Admissibility v. weight - [See first and third Criminal Law - Topic 5585 ].

Evidence - Topic 7058

Opinion evidence - Expert evidence - Particular matters - DNA evidence - [See Criminal Law - Topic 5202.1 and first, second, third, fourth, fifth and sixth Crim­inal Law - Topic 5585 ].

Cases Noticed:

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 114 D.L.R.(4th) 419; 89 C.C.C.(3d) 402; 29 C.R.(4th) 243, consd. [para. 16].

Frye v. United States, 293 F. 1013 (U.S. Sup. Ct.), refd to. [para. 17].

R. v. Johnston (1992), 69 C.C.C.(3d) 395 (Ont. Gen. Div.), refd to. [para. 17].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30; [1983] 1 W.W.R. 251; 39 B.C.L.R. 201; 29 C.R.(3d) 193; 68 C.C.C.(2d) 394; 138 D.L.R.(3d) 202, refd to. [para. 21].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293; 36 C.C.C.(3d) 481; 60 C.R.(3d) 1; 43 D.L.R.(4th) 641, refd to. [para. 22].

R. v. Melaragni (1992), 73 C.C.C.(3d) 348 (Ont. Gen. Div.), refd to. [para. 25].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; [1990] 4 W.W.R. 1; 55 C.C.C.(3d) 97; 76 C.R.(3d) 329, refd to. [para. 37].

R. v. Scardino (1991), 46 O.A.C. 209; 6 C.R.(4th) 146 (C.A.), refd to. [para. 40].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385; 64 C.R.(3d) 1; 28 B.C.L.R.(2d) 145, refd to. [para. 42].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257; 19 C.R.(4th) 1, refd to. [para. 45].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81; 82 C.C.C.(3d) 193; 103 D.L.R.(4th) 678; 21 C.R.(4th) 186; 15 C.R.R.(2d) 193; 45 M.V.R.(2d) 161, refd to. [para. 45].

R. v. Parsons, Charette et al. (1977), 33 N.R. 161; 37 C.C.C.(2d) 497 (Ont. C.A.), refd to. [para. 50].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321; 101 C.C.C.(3d) 97, refd to. [para. 51].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81; 44 C.C.C.(3d) 193; 66 C.R.(3d) 1, refd to. [para. 63].

R. v. Campbell (1977), 38 C.C.C.(2d) 6 (Ont. C.A.), refd to. [para. 71].

R. v. Storey (Stephanie); R. v. Anwar (Rashid) (1968), 52 Cr. App. Rep. 334 (C.A.), dist. [para. 72].

R. v. Melnichuk (L.), [1997] 1 S.C.R. 602; 209 N.R. 321; 99 O.A.C. 218; 114 C.C.C.(3d) 503, reving. (1995), 87 O.A.C. 336; 104 C.C.C.(3d) 160 (C.A.), refd to. [para. 89].

R. v. Biddle (E.R.), [1995] 1 S.C.R. 761; 178 N.R. 208; 79 O.A.C. 128; 96 C.C.C.(3d) 321; 36 C.R.(4th) 321, not appld. [para. 93].

R. v. White (R.G.) and Côté (Y.) (1996), 91 O.A.C. 321; 108 C.C.C.(3d) 1 (C.A.), refd to. [para. 94].

R. v. Court (G.R.) and Monaghan (P.D.) (1995), 81 O.A.C. 111; 99 C.C.C.(3d) 237 (C.A.), refd to. [para. 94].

Authors and Works Noticed:

Matthews, Kenneth, Pink, Joel E., Tupper, Allison, and Wells, Alvin, The Expert: A Practitioners Guide (1995 Looseleaf), vol. 1, c. 12, p. 12-1 [para. 14].

Sopinka, John, Lederman, Sydney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), p. 359 [para. 52].

Counsel:

Russell Silverstein and David M. Tanovich, for the appellant;

Carol A. Brewer, Michal Fairburn and Shawn Porter, for the respondent.

This appeal was heard on November 17, 18 and 19, 1997, before Brooke, Finlayson and McKinlay, JJ.A., of the Ontario Court of Appeal.

Finlayson, J.A., delivered the following judgment for the court on February 2, 1998.