R. v. Wristen

R. v. Wristen Collection Decisions of the Court of Appeal Date 1999-12-06 Docket numbers C23265 Judges Abella, Rosalie Silberman; Laskin, John Ivan; Rosenberg, Marc Subject Criminal Decision Content DATE: 19991206 DOCKET: C23265 COURT OF APPEAL FOR ONTARIO ABELLA, LASKIN and ROSENBERG JJ.A. BETWEEN: ) ) Brian H. Greenspan, HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) - and - ) Alexander Alvaro, ) for the respondent ANDREW NORMAN WRISTEN ) ) Appellant ) ) Heard: June 10, 1999 ) On appeal from his conviction by Mr. Justice W. T. Stayshyn, sitting with a jury, on June 27, 1995 LASKIN and ROSENBERG JJ.A.: [1] Andrew Norman Wristen appeals from his conviction for second degree murder of his wife Penny and from the period of parole ineligibility of seventeen years. The Crown relied entirely upon circumstantial evidence to prove that an offence was in fact committed and that the appellant committed the offence because Penny Wristen’s body has never been found. It was the theory of the Crown that the appellant killed his wife in the matrimonial home sometime on Wednesday, August 4, 1993. After that date, Mrs. Wristen was never seen again by any of her friends or relatives. She never contacted her family, including her two young children to whom she was devoted. It was the theory of the defence that Penny Wristen had voluntarily left the home and if she disappeared thereafter, it was not because of any misconduct by the appellant. To support this theory, the defence called four independent witnesses who testified that they had seen a woman they believed was Penny Wristen after August 4, 1993. The principal ground of appeal concerns the trial judge’s treatment of the evidence of these four witnesses in his charge to the jury. The appellant also argues that the trial judge misdirected the jury on the burden of proof, consciousness of guilt, and the position of the defence. Finally, the appellant appeals from the period of parole ineligibility of seventeen years. For the following reasons, we would dismiss the appeal from conviction and from the period of parole ineligibility. THE FACTS The disappearance [2] The appellant married Penny Wristen in 1984. This was a second marriage for the appellant. The couple lived with their two children in Hamilton. Penny was very close to the children and to other members of her family. There was evidence that for several years prior to Penny’s disappearance the marriage was an unhappy one. On different occasions, Penny had left the home. Witnesses reported that in 1990, 1992 and 1993, the appellant made threats to kill his wife. In 1992, the appellant was convicted of assaulting his wife. In June and July 1993, Penny began making plans to leave the appellant. She set up a separate bank account and consulted a lawyer. She told friends that she wanted the appellant to leave the home and leave her with custody of the children. The appellant told a friend that he too had consulted a lawyer about a separation but decided it was too expensive. He told several people that he wanted to kill her. He told one couple that he would take her to Niagara Falls and throw her over; and that if could not do it himself, he would get an “Indian friend” to do it. The couple thought the appellant was joking; the appellant said: “Well, I’m not.” In mid-July, the appellant and his wife went on a trip to Nashville. When he returned from the trip, the appellant told a friend that the trip was a waste and “maybe I should have had her done or I should do it myself”. [3] Penny Wristen was last seen by her friends and relatives in the early morning hours of August 4, 1993. Up to about 1:30 a.m. she was at her brother’s home. From about 2:00 a.m. to 5:00 a.m., she was at the home of a very close friend and neighbour. This friend testified that at 4:45 a.m. and again at 5:00 a.m. the appellant called the house because he wanted his wife to come home and look after the children so that he could go to work. Penny left her friend’s home at about 5:00 a.m. No one who knew Penny Wristen ever heard from her or saw her again. [4] Although the appellant had wanted his wife to come home so that he could go to work, neighbours saw his van in the driveway at 5:45 a.m. and again at 12:00 p.m. The appellant was a baker and ordinarily worked between 5:00 a.m. and noon. According to his employer, on August 3rd and 4th the appellant worked briefly and left between 9:00 and 10:00 a.m. to arrange for a babysitter. The appellant came in to work on August 5th and again asked to leave early. At his employer’s suggestion the appellant took the rest of the week off. During this week the appellant was seen to have a disheveled appearance. [5] The Crown led cogent evidence to show Penny Wristen did not leave home voluntarily. Her friends and relatives testified that it was out of character for Penny Wristen to leave and not contact her family or her children. She had also left the home without her purse, her wallet and her medication for allergies. She had no alcohol, drug, medical or psychological problems that might explain her disappearance. [6] Circumstantial evidence after August 4 showed the appellant knew his wife was dead and pointed to him as the killer. The appellant gave conflicting accounts of when and why Penny Wristen left the home. He told members of the family she had left him, giving the impression that they had separated. But he told others she had gone to a mall in Hamilton and had not returned, and when he told that story, he gave conflicting times for when she left, telling various people she went to the mall at 1:30 p.m., 3:00 p.m. and 5:00 p.m. He first told the police he was at work when his wife left. In a later statement, he told the police he was home when she left. On September 7, 1993, over a month after his wife disappeared, he told the police officer that she had only been missing for two weeks. He never told his employer that she was missing. [7] Nor did the appellant ever a file a missing person’s report. Instead, he told several people she was returning home during the day while he was at work. He told a number of people that his wife was menstruating and that she had left her “bloody” or “soiled” underwear in the house. He told a female friend with whom he had sex at their home not to worry because “Penny was never coming back”. He told police that a “friend” of his saw Penny Wristen at the Jockey Club sometime in September. But when questioned by the police, he claimed not to know the name of the friend. He told a reporter that a “friend”, again unnamed, had seen Penny Wristen on a country line dancing show on the Nashville Network. He told his oldest son and a friend that he had gone to Nashville in December and found Penny, but that she had refused to return. [8] After Penny Wristen disappeared, the appellant used her credit and debit cards and cashed cheques made out to her. But he told a friend that Penny had returned to the house to pick up the cheques. Then he told the police he had not cashed her cheques or used her credit or debit cards. [9] Forensic evidence supported the Crown’s theory that Penny Wristen was killed in her home. Forensic experts found approximately 100 areas of blood staining in the home. The stains were concentrated in the kitchen. All but one of the eighteen samples taken confirmed the stains to be human blood. Most of the stains were “projected” droplets, signifying that they were generated by multiple blows struck by one person against another person who was already bleeding. A blood stain found on the dishwasher was Penny Wristen’s; the other stains likely were hers as well. [10] To meet this powerful Crown case, the appellant led the evidence of four witnesses who said they saw Penny Wristen alive after August 4, 1993. The trial judge’s treatment of this evidence is at the heart of the appellant’s conviction appeal. The defence witnesses [11] Penny Wristen had several distinguishing physical features. She was bow-legged and walked with her feet pointed inward. She had a bunion on the side of her right foot. She was only five feet tall and weighed ninety-five pounds. Finally, she also had dark brown shoulder length hair and brown eyes. The four defence witnesses who claimed to have seen Penny Wristen after her disappearance gave descriptions that incorporated these features in varying degrees. [12] The most important witness was Gerald Seager who, at the time of the trial, was a prison guard. He was riding his motorcycle in the early morning hours of August 5, 1993 and saw a woman standing on the side of the road, apparently looking for a ride. He stopped and asked if she needed assistance. They had about a 90-second conversation and were ten feet apart at the time. The lighting was good. Mr. Seager described the woman as short and petite, with her brunette hair pulled back. The woman refused all of his offers to help, including that he contact the police or take her to a shelter. She described herself as a runaway housewife. Finally, the woman agreed to wait for Seager while he went to fetch his car. However, just as he was leaving the area, Mr. Seager saw a pick-up truck stop and when he returned she was gone. He contacted the police when he saw Penny Wristen’s photograph in the newspaper. He was 98 to 99 percent sure the woman was Mrs. Wristen. [13] Shirley Connolly testified that she saw Mrs. Wristen in the bar of the Carlton Hotel in Hamilton on September 18, 1993. She described the woman as short and very tiny with dark brown shoulder-length hair. The woman walked bow-legged. The woman was seated with two men and looked scared. Two days later, Ms Connolly saw a missing person’s poster of Penny Wristen and recognized her as the woman in the bar, although her hair was longer and curlier in the photograph. The next day she contacted the police. [14] Karen Pietrangelo and Ann Prevost testified that in early October 1993 they saw a “bag lady”, outside the Burlington bakery where Ms Prevost worked. Both witnesses noted that the woman had a bunion on her right foot. Ms Pietrangelo described the woman as five feet tall, thirty to forty years of age and weighing 100 pounds. She came within two or three feet of the woman and spoke to her briefly. Both witnesses testified that the “bag lady” resembled Penny Wristen. They made the connection after Ms Pietrangelo saw a picture of her in a Toronto newspaper and contacted the police. [15] The evidence of one other witness should be mentioned. John Traynor was the appellant’s employer and knew Penny Wristen. He was a Crown witness and testified about the hours the appellant worked in the days following his wife’s disappearance. However, Crown counsel also elicited from Mr. Traynor, without objection, that in the summer of 1994 he was out driving with his wife and noticed a woman pushing a baby carriage who looked a lot like Penny Wristen. He was twenty to thirty feet away at the time. Accordingly, Mr. Traynor turned the car around, but when he had a better look, he realized he was mistaken. [16] The appellant did not testify at his trial. THE CHARGE TO THE JURY [17] The appellant submits that the trial judge misdirected the jury on how to approach the defence evidence. In general, Mr. Greenspan argues that the trial judge erred in directing the jury that as a matter of law they must approach this evidence with special care. To appreciate this ground of appeal it is necessary to set out at some length the relevant instructions: As I see it, members of the jury, the defence has presented, an in part uninvestigated, alternative. In considering this alternative always remember that there is no onus upon the accused Andrew Wristen in these proceedings. As I have indicated the onus is upon the Crown throughout to show beyond a reasonable doubt that the offence charged was committed and that Andrew Wristen committed such offence. What is "such alternative"? You should consider and consider with care and concern the evidence of Gerald Seager, Shirley Connolly, Karen Pietrangelo and Ann Prevost, all of whom testified in respect of seeing Penny Wristen long after the date of her alleged disappearance. In considering the evidence of these witnesses, you should remember and consider many of the general principles of identification. You should understand that observation and memory are often unreliable when it comes to the identification of people. In other words, this is an area where people often make honest mistakes. When you consider the evidence of the eyewitnesses, you should use the following guidelines, among others, paying particular attention to each eyewitness' opportunity to observe the person they say is the missing woman Penny Wristen: How long was the eyewitness looking at the person they saw? How far away was the eyewitness? Was there anything that might have obstructed the view of the eyewitness? Was there anything else happening at the same time which may have distracted the eyewitness? What were the lighting conditions at the time? Did the eyewitness appear to have good eyesight? Did the eyewitness appear to have a good memory? How long was it between the time when the eyewitness saw the event and the time when that witness identified the accused? Was it a matter of hours, or was it several days, or was it several months? Was the eyewitness able to give a good description of the person they saw? Has the eyewitness made any significant changes to that description? Did other eyewitnesses give a different description? Did the eyewitness explain how they were able to identify Penny Wristen as the person they saw? Did they mention special features about the person they saw which helped them make that identification? Was there other evidence which appeared to support the identification of the eye witness? Keep in mind that although identification by one witness can support that of another, even a number of honest witnesses can be mistaken. Consider, was Penny Wristen someone who was known to the eyewitness before all this took place or were they strangers? If the eyewitness knew Penny Wristen before, you may probably attach more weight to the identification. Here, we know all four of those eyewitnesses were total strangers to Penny Wristen. Please bear in mind, however, that we sometimes make mistakes when we try to recognize people we know quite well. Some of you probably had the experience when someone comes up to you and says, "I know you. Didn't you used to live at such and such a place?", or something similar, only to find out that you have been mistaken for someone else. Even in this case, we were confronted by a situation of mistaken identification, when the individual with previous personal knowledge and acquaintanceship with Penny Wristen made a mistake. You will recall the testimony of John Traynor, Andrew Wristen's employer. He indicated that he knew Penny Wristen. She used to drop by the place of employment sometimes. He saw her a dozen times and he would speak to her. Sometime, during the summer of 1994 – that would be almost a year post disappearance – he and his wife were driving up to look at the Dream Home at number 53 Highway and Garth Street and they were driving through the development towards the Home, and he said to his wife, "That looked a lot like Penny", and it was a woman walking with a baby. "We were 20 to 30 feet away. The wife said no way that's Penny.". He turned the car around and he returned to get a look at the woman and he checked the woman with the baby and he told you, members of the jury, he was wrong; that was not Penny Wristen. That is an example of how easy it is to make a mistake with someone that you even know, and as you can see, members of the jury, the recognition of another person is more complicated than we might think it is. Usually we do not think about how we recognize people we have seen before. We take it for granted that we can tell the difference between one person and another. However, we cannot afford to be casual about the identification of one person by another person. I urge you to consider carefully what I have said to you about the evidence of eyewitnesses. [Emphasis added.] [18] The trial judge then fully reviewed the evidence of the four defence witnesses. The appellant does not complain about this review except for a passage relating to Mr. Seager to which we will refer later. Following the review of the evidence the trial judge concluded with the following directions: You should again examine the evidence of these honest, helpful citizens in relation to the earlier tests that I have suggested concerning the identification of witnesses, namely that experience has shown that mistakes can occur when one, two or more witnesses have made positive identification. Accordingly, where your consideration as to whether these witnesses did see Penny Wristen at the time and place indicated as here depends wholly or substantially on the correctness of identification. You must bear in mind that there have been a number of instances where responsible people whose honesty was not in question and whose opportunity for observation had been adequate, made positive identifications, which identifications subsequently proved to be erroneous. You must be especially cautious before accepting such evidence of identification as correct. If, however, after a careful examination of such evidence, in the light of all of the circumstances and with due regard to all of the other evidence in the case, you are satisfied or have a reasonable doubt raised because of the identification, you will act upon it. Where a person, in this case Penny Wristen, is known by the identifying witness before the event in issue, the danger inherent in identification largely disappears. But where Penny Wristen had no previous acquaintance with the witnesses, as in this case, you must consider the identifying witness' opportunity to observe, the length of time of the observations, their ability to observe and their powers of retention, and whether or not it is the type of event that they would recall with any degree of accuracy, as well as the other tests for identification that I had earlier reviewed with you. If you accept the evidence of Gerald Seager, Shirley Connolly, Karen Pietrangelo or Ann Prevost or any of them, you should return a verdict of not guilty. Even if you do not accept the evidence of Gerald Seager, Shirley Connolly, Karen Pietrangelo or Ann Prevost or any of them, but are left in a reasonable doubt by such evidence, you should return a verdict of not guilty. Even if you are not left with a reasonable doubt by the evidence of those four witnesses or any of them, you should still proceed to determine whether on the basis of all of the evidence in these proceedings that the accused Andrew Wristen is guilty beyond any reasonable doubt. You might ask yourselves, members of the jury, if Penny Wristen were alive today, some many, many months after she disappeared, do you think she would know about the lengthy police investigation and the charging of her husband Andy Wristen with murder? Do you think that Penny Wristen would know about this trial and its attendant publicity and wonder about the state of her children? Does the evidence show her to be the type of person who would torture her mother and her many brothers and sisters and her children, and let them continue the search for someone who is safe but is playing games? Does the evidence show Penny to be the type of person who would sit back and watch Andrew Wristen be tried for causing her death when she is in fact alive and well? When you look at the totality of all of that, members of the jury, are you satisfied beyond a reasonable doubt that Penny Wristen is dead? If "no", then your verdict is not guilty and your deliberations end right there. [Emphasis added.] [19] Counsel for the appellant at trial objected to the charge to the jury. He submitted that the strong caution concerning the defence identification witnesses was inappropriate because that evidence was exculpatory. Counsel also objected to the charge concerning Mr. Traynor. He pointed out that the circumstances under which Mr. Traynor made his mistaken identification were very different from the circumstances under which defence witnesses claimed to have identified Penny Wristen. The trial judge refused to recharge the jury. THE GROUNDS OF APPEAL [20] The appellant made four submissions in support of his conviction appeal: 1. The trial judge unfairly undermined the position of the defence by the way he dealt with the defence identification evidence; 2. The trial judge misdirected the jury on the burden of proof and on their fact finding function; 3. In addition to the defence identification evidence, the trial judge failed to adequately present to the jury the defence theory on other aspects of the evidence; and 4. The trial judge misdirected the jury on the appellant’s post offence conduct, that is on the evidence of consciousness of guilt; [21] The most serious errors alleged concern the treatment of the defence identification evidence and the position of the defence in relation to that evidence. We will deal with those issues first. ANALYSIS 1. The treatment of the defence identification evidence [22] The principal error alleged by the appellant with respect to the treatment of the defence identification evidence concerns the standard of care the trial judge instructed the jury to apply to that evidence. In the context of that submission, it was also argued that the trial judge misapprehended certain of the evidence and, accordingly, misdirected the jury on the effect of that evidence and failed to adequately place the position of the defence before the jury. [23] There is little appellate authority to assist in dealing with the appellant’s principal ground of appeal. Only two cases brought to our attention touch the issue: R. v. Jack (1992), 70 C.C.C. (3d) 67 (Man. C.A.) and R. v. Jeffrey (1989), 35 O.A.C. 321 (C.A.). In our view, this ground of appeal engages the following principles: a. The scope of the trial judge’s right to express an opinion on the weight of the evidence. b. The need for caution in relying on eyewitness identification. c. The trial judge’s duty to present the position of the defence and the evidence in support of that position. a. The trial judge’s expression of opinion [24] One can find many statements on the scope of the trial judge’s right to express an opinion on the weight the jury should attach to the evidence. A convenient summary may be found in the reasons for judgment of Martin J.A. in R. v. Garofoli et al. (1988), 41 C.C.C. (3d) 97 (Ont. C.A.)1 at 133: It is well established that the trial judge is entitled to express his own view of the facts or of the credibility of witnesses and to express his opinion in strong terms provided that he does not use such language as leads the jury to think that they must find the facts in the way he indicates, and provided the charge does not deprive the accused of a fair presentation of his case to the jury. Even though the trial judge has properly instructed the jury that they are not bound by his views on the evidence, an appellate court may, none the less, intervene if the opinion expressed by the judge is far stronger than the facts warrant, or where the judge has expressed his opinion so strongly that there is a likelihood of the jury being overawed by them: see R. v. Ruddick (1980), 57 C.C.C. (2d) 421 at p. 435 (Ont. C.A.), leave to appeal to the Supreme Court of Canada refused April 6, 1981, loc. cit.; R. v. Yanover and Gerol (1985), 20 C.C.C. (3d) 300 at pp. 319-20 (Ont. C.A.). [Emphasis added.] [25] Although there has been some criticism of the broad discretion conferred on the trial judge to express an opinion on the facts of the case,2 this is still an accurate statement of the law in this country. Thus, it was open to the trial judge to express his opinion on the facts concerning the defence identification evidence provided that he made it clear that the jury was not bound by that opinion. In this case, the trial judge gave a strong expression of his opinion about the weight to be attached to the identification evidence when he told the jury that they must be especially cautious before accepting the defence evidence as correct and when he presented in the form of a series of rhetorical questions the proposition that if Penny Wristen were still alive, she would have contacted her family. [26] The trial judge, however, in terms that cannot be impeached, had earlier instructed the jury that while they are bound to apply the law as he would give it to them, they were obliged to determine the case on their own view of the facts. They were also instructed to act upon their “own conclusions as to the evidence, the credibility of the witnesses and the issues with which you have to deal” and to disregard any opinions of the trial judge with which they disagreed. [27] The trial judge’s opinion, expressed in the form of a series of rhetorical questions that, if she were alive, Penny Wristen would have contacted her family was a comment or opinion on the evidence rather than a legal instruction. In our view, it would have been understood as such by the jury. It therefore falls within the bounds of permissible comment, given the earlier instructions that the jury was obliged to disregard the judge’s opinion if they did not agree with it, provided the opinion was not “far stronger” than warranted by the facts. [28] In our view, this opinion did not unfairly undermine the position of the defence. We have summarized the prosecution’s evidence, much of it undisputed, demonstrating that Penny Wristen had not left her home voluntarily on August 4, 1993. The opinion was not far stronger than warranted by the facts nor would it likely overawe the jury. [29] The trial judge gave the jury the standard instruction that they were the sole triers of fact and were entitled to disagree with any of his opinions on the evidence or credibility of witnesses. Moreover, the questions themselves were all directed to the notion that if Penny Wristen were still alive, she would not have abandoned her family, a common sense notion that, given her character, the jurors would undoubtedly have considered themselves, even without the judge’s questions. The questions came after a detailed and, but for two matters we will come to, accurate summary of the evidence of the four defence witnesses, whom the trial judge called “honest, helpful citizens”. Finally, balanced against the series of rhetorical questions, throughout his charge the trial judge instructed the jury to exercise caution in considering the Crown’s circumstantial case. He told the jury that they should “proceed with caution” when assessing circumstantial evidence, that “great care must be exercised by you in using it”, that they should consider the appellant’s statements “very carefully” and be “most careful” in assessing them. And when he reviewed the Crown’s theory at the end of his charge, he expressed no opinion on it. For these reasons, we do not think that the trial judge’s opinion expressed by his series of rhetorical questions was “far stronger” than warranted or that it overwhelmed the jury to favour the Crown’s case. [30] On behalf of the appellant, Mr. Greenspan points out that the series of questions fail to take into account the possibility that the evidence of the defence witnesses is reliable, but Mrs. Wristen met her death from other persons after she was seen by the defence witnesses. However, the jury could not have been under any misapprehension that the Crown was required to prove beyond a reasonable doubt that the appellant had caused the death of his wife. The same body of evidence that showed Penny Wristen was dead also pointed to the appellant as the perpetrator. The possibility that she met her death at the hands of some other person was, on the basis of this evidence, fanciful. [31] To the extent that the trial judge’s comments about the weight to be attached to, and the care that must be exercised with, the identification evidence, were merely expressions of opinion by him on the evidence, there is no error of law. However, it is at best unclear whether the trial judge was expressing an opinion or giving instructions on the law. In our view, it is probable that the jury would take this part of the charge as a set of legal instructions on how to deal with identification evidence. In view of this ambiguity, the case must be approached on the basis that the jury would have understood that these were instructions on the law rather than mere expressions of opinion: Bigaouette v. The King, [1927] S.C.R. 112. We will therefore consider whether the comments constituted legal misdirection. b. The need for caution in dealing with eye-witness identification evidence [32] Where the prosecution’s case depends substantially upon the accuracy of eye-witness identification, the trial judge is required to instruct the jury on the need for caution when dealing with such evidence. The charge must not only deal with issues of credibility but also with the inherent frailties of identification evidence because of the unreliability of human observation and recollection: R. v. Sutton, [1970] 2 O.R. 358 (C.A.); R. v. Miaponoose (1996), 30 O.R. (3d) 419 (C.A.); R. v. Mezzo, [1986] 1 S.C.R. 802; R. v. Turnbull (1976), 63 Cr. App. R. 132 (C.A.). The trial judge should also instruct the jury about the various factors that can affect the reliability of eye- witness identification evidence and remind the jury that mistaken identification has been responsible for miscarriages of justice by reason of the wrongful conviction of persons who have been mistakenly identified by one or more honest witnesses. The charge to the jury will often track the model charge from The People v. Casey (No. 2), [1963] I.R. 33 (S.C.), which was approved by this court in R. v. Sutton. [33] In R. v. Jeffrey, Lacourciere J.A. speaking for this court held that it was not an error for the trial judge to have given a similar instruction to the jury when Crown witnesses gave exculpatory eye-witness identification. In that case, the accused were charged with attempted murder and related offences. They relied upon the fact that the witnesses who saw the gunman were not able to identify their features and gave evidence that tended to exonerate them. Lacourciere J.A. held that the trial judge was entitled to give a general caution to the effect that identification evidence suffers from the inherent frailties of human observation and that such evidence is notoriously unreliable, even though the only identification evidence tended to exonerate the appellants. [34] Although the witnesses giving the exculpatory evidence in Jeffrey were Crown witnesses, there is no basis in principle for limiting the judgment to Crown witnesses. Admittedly, there are differences between this case and Jeffrey. The impugned instructions in Jeffrey were given in the general portion of the charge. The directions in this case were made in relation to the defence witnesses and went beyond a discussion of the frailties and inherent weaknesses of the evidence. The trial judge told the jury that they had to be especially cautious before accepting the defence evidence. Nonetheless, the court’s judgment in Jeffrey shows that a trial judge is entitled to assist the jury by pointing out, as this trial judge did, the general frailties of this kind of evidence and why this evidence might be unreliable. [35] The other decision to which we were referred is the decision of the Manitoba Court of Appeal in R. v. Jack. Jack was an appeal by the accused from his conviction for the murder of his wife. As in this case, the body of the deceased was never found and the accused relied upon sightings of his wife after the date she supposedly disappeared. The trial judge’s task was somewhat more complicated in Jack because there were two sets of identification witnesses. The Crown relied upon the so-called St. Anne witnesses. They identified the accused as driving the family automobile, a distinctive yellow Blazer, the night that he claimed she had left, with the family car. There was circumstantial evidence tending to support the Crown identification evidence. However, in the course of the trial, the Crown disclosed that the police had reports from two witnesses, the so-called Charter House witnesses, who claimed to have seen the accused’s wife about a week after she disappeared. The trial judge refused to declare a mistrial by reason of the late disclosure but on a defence application called the two witnesses. [36] In Jack, as in this case, the defence complained about the treatment of the exculpatory evidence. Scott C.J.M., speaking for the court on this issue, described the charge as follows, at p. 106: When almost at the very end of the summary of the witnesses' evidence, and indeed of the charge itself, he returned to the issue of identification evidence when reviewing the testimony of Garbutt and Pike [the Charter House witnesses]. He again sounded a warning about being "extremely careful" in considering the evidence of eyewitnesses, particularly when identifying strangers. He then analyzed -- as he had with the Ste. Anne witnesses -- some similarities and differences in their evidence. He incorrectly contrasted their evidence with that of George Gershman (but corrected this in his recharge). He then went on to say: So you can see that there is a need for you to be extremely careful when you consider this evidence of eyewitness identification. Before you accept it, you should look for other evidence that might support your conclusion that the identification of the woman as Christine Jack is accurate, even though there may be inconsistencies within the evidence of the various eyewitnesses who testified. (Emphasis added.) The trial judge immediately thereafter noted that whereas with respect to the Ste. Anne witnesses there was other evidence independent of their identification of the man, such as identification of the Blazer by Hudrick and Ste. Marie, which could help decide if, in fact, they had correctly identified Brian Jack: Here, with these witnesses [Pike and Garbutt] you do not have such independent evidence. You have basically identification by two witnesses who primarily relied on the face and hair of the woman. As I've said, you should be extremely careful when you consider this evidence. [37] Scott C.J.M. held that this constituted misdirection. He explained the error in the following terms at pp. 107-8: The initial caution about the eyewitness identification evidence of the Charter House witnesses was not inappropriate in the context of the charge as a whole. There was, however, a clear suggestion that the jury had to "accept" the evidence of the Charter House witnesses presumably before drawing inferences from it favourable to the accused, but that, unlike the evidence of the Ste. Anne witnesses, there was no supporting independent evidence. This suggestion was wrong. In my opinion, a fair analogy can be made between identification witnesses in this case, particularly the Charter House witnesses, and alibi witnesses. Indeed, in a very real sense, the evidence of Garbutt and Pike dealt with the same kind of "time and place" testimony critical to a consideration of alibi evidence called on behalf of an accused. Ever since the authoritative decision of the Supreme Court in Lizotte v. The King (1950), 99 C.C.C. 113, [1951] 2 D.L.R. 754, [1951] S.C.R. 115, the law has been clear that an alibi need not be proved; it need only raise a reasonable doubt in the minds of the jury. In my opinion, the jury in this case ought to have been charged as follows: (a) if the jury accepted the evidence of the Charter House witnesses, they were entitled to (and, indeed, probably should) return a verdict of not guilty; (b) even if they did not accept the evidence of those two witnesses, but were left in a reasonable doubt by it, they should also return a verdict of not guilty, and (c) even if not left with a reasonable doubt by the evidence of Garbutt and Pike, they should still go on to determine whether or not on the basis of all the evidence the accused was guilty beyond a reasonable doubt. [Emphasis added.] [38] The trial judge in Jack thus made two errors. He erroneously instructed the jury that they had to be extremely careful before accepting the defence evidence because there was no independent evidence to support it. As well, this part of the charge did not conform to R. v. W. (D.), [1991] 1 S.C.R. 742. There is no suggestion, however, that the trial judge erred in directing the jury to be “extremely careful” in considering the evidence of eyewitnesses, a direction that in the circumstances would apply both to the Crown evidence and the exculpatory witnesses called by the judge. [39] The trial judge in this case did not fall into either of the errors identified in Jack. After advising the jury of the need for caution in dealing with this evidence, the trial judge charged the jury in accordance with the suggestions in Jack and in a manner consistent with the suggested charge in R. v. W. (D.). Those instructions made it clear that the jury did not have to “accept” the defence evidence and that this evidence on its own could raise a reasonable doubt and lead to an acquittal. The “especially cautious” direction in this case is little different from the “extremely careful” direction in Jack. [40] The question of the correct instructions where the defence relies upon potentially unreliable evidence has arisen in other contexts. In several cases, this court has dealt with the propriety of jury instructions concerning the evidence of alleged accomplices or persons of disreputable character who give exculpatory evidence favouring the defence. In those cases, this court has held that it is permissible for the trial judge to direct the jury to view their evidence with caution and explain the reasons for the caution. For example, in R. v. Cavanagh and Donaldson (1976), 33 C.C.C. (2d) 134 (Ont. C.A.) at 144, Evans J.A. held that it would have been open to the trial judge to direct the jury that the evidence of the defence witnesses, in that case, must be viewed with caution because their motives may be suspect and because of their past criminal records. [41] However, it is wrong for the trial judge to go further and give a warning similar to that suggested in R. v. Vetrovec, [1982] 1 S.C.R. 811 for Crown witnesses. In Vetrovec, the Supreme Court of Canada held that where the evidence of a suspect witness occupies a central position in the demonstration of guilt the trial judge should warn the jury of the risks of adopting, without more, the evidence of the witness. As explained in Jack and W. (D.), such a warning is inconsistent with the fundamental principle that the accused must be acquitted if the jury has a reasonable doubt based upon the defence evidence alone, even if that evidence emanates from alleged accomplices or persons of disreputable character. In R. v. Watkins (1992), 70 C.C.C. (3d) 341 (Ont. C.A.) at 344-45, this court held that it was misdirection to give a Vetrovec warning in relation to allegedly unsavoury defence witnesses. In that case, the trial judge had directed the jury to scrutinize the evidence of the defence witnesses with “great care” and warned them that it is “dangerous for you to act on the evidence of such a person unless corroborated”. Again, however, it seems that it is the warning that was held to be misdirection and not simply the instruction to proceed with great care. [42] To a similar effect is the decision of this court in R. v. Tzimopoulos (1986), 29 C.C.C. (3d) 304 (Ont. C.A.). In that case, the trial judge had given the following direction at p. 339: It is recognized in our law as well that if you find that a witness was a person who had an unsavoury character, I must tell you that the evidence of that person should be scrutinized and weighed by you with great care. I must warn you that it is dangerous for you to act on the evidence of a person whom you find to be of unsavoury character, unless there is some other evidence independent of the evidence of that witness which supports it. There are cases where, no doubt, even the Crown presents to the court, because of its duty to bring out all of the evidence, a person of disreputable character. Sometimes those are the only persons who can give evidence. But I warn you, as a matter of law, that the evidence of any such person, whether called by the Crown or by the defence, should be scrutinized and weighed with great care. [43] The court held that this was misdirection, but again because of the instruction respecting confirmatory evidence. The court held as follows at pp. 339-40: A trial judge is entitled to express an opinion on the credibility of witnesses, including the accused, and to do so in fairly strong language, provided he makes it clear to the jury that the issue of credibility is for them: see R. v. Olson (1929), 51 C.C.C. 122, [1929] 2 D.L.R. 300, 23 Sask. L.R. 321 (Sask. C.A.); R. v. Dorland (1948), 92 C.C.C. 274, [1948] O.R. 913, 6 C.R. 485 (Ont. C.A.); R. v. Cavanagh and Donaldson (1976), 33 C.C.C. (2d) 134, 75 D.L.R. (3d) 189, 15 O.R. (2d) 173 (Ont. C.A.), and R. v. Yanover and Gerol (1985), 20 C.C.C. (3d) 300 (Ont. C.A.). However, in the present case the trial judge did far more than express an opinion on credibility. As Mr. Wright pointed out he, in effect, gave a Vetrovec warning to the jury (see Vetrovec v. The Queen (1982), 67 C.C.C. (2d) 1, 136 D.L.R. (3d) 89, [1982] 1 S.C.R. 811 (S.C.C.)) in that he instructed them that it was dangerous for them to act on the evidence of defence witnesses, including that of the appellant, unless there was independent confirmatory evidence. This was wrong. The accomplice rule never applied to witnesses giving evidence favourable to the defence: see R. v. Cavanagh and Donaldson, supra, at p. 144. The Vetrovec warning should only be given where a witness is giving evidence that assists in the demonstration of guilt. [Emphasis added.] [44] In our view, these cases stand for the following propositions. It is not misdirection for a trial judge to direct a jury to approach certain kinds of defence evidence with care. The need for care may be because of the character of the witness, as in Cavanagh, or the inherent frailties of the evidence, as in Jack. The trial judge may also instruct the jury on the reasons why caution is needed. What the trial judge must not do is go further and direct the jury that it is dangerous to act on that evidence alone. That constitutes an error in law. [45] No case suggests that merely instructing the jury to be especially cautious or extremely careful in considering defence evidence constitutes an error of law, especially where that instruction is accompanied by an instruction that accords with R. v. W. (D.). Rather, the instruction must be considered in the context of the charge. If the appellate court is satisfied that when the charge is considered as a whole, an especially cautious instruction did not unfairly undermine the defence position, the appeal may be dismissed. We are satisfied that the “especially cautious” direction in this case did not unfairly undermine the defence. The trial judge was entitled to assist the jury by pointing out, as this trial judge did, the general frailties of this kind of evidence and why this evidence might be unreliable. [46] We would, however, make the following observations. The need for special care concerning eye-witness identification evidence arises because of the danger of a wrongful conviction. That danger does not exist where the eye-witness evidence tends to exculpate the accused. Such a direction may leave the jury with an erroneous impression about the quality of evidence required to raise a reasonable doubt. It follows that such an instruction should be avoided. It is far better for the trial judge to alert the jury to the reasons for the frailties of the evidence in the particular case, always reminding the jurors that they need not accept the defence evidence, that it is sufficient if the defence evidence leaves them with a reasonable doubt. c. The duty to present the defence position [47] The trial judge is required to present the position of the defence and the evidence in support of that position. The most recent expression of that principle by this court is in the reasons of the majority in R. v. Mullins-Johnson (1996), 112 C.C.C. (3d) 117 (Ont. C.A.)3 at 123: It is the duty of the trial judge to place the defence before the jury and to refer the jury to the substantial evidence bearing on the defence in a way that will ensure the jury's due appreciation of the evidence: R. v. Yanover and Gerol (1985), 20 C.C.C. (3d) 300 (Ont. C.A.), at p. 328. The function of this court is not to subject the directions to the jury to minute scrutiny and criticism but rather to examine it as a whole to see whether the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues: R. v. Cooper (1993), 78 C.C.C. (3d) 289 (S.C.C.), at p. 301. [48] In our view, the trial judge did carry out the duty as described in Mullins-Johnson. The trial judge fully reviewed the evidence of the four witnesses and related that evidence to the defence position that the appellant could not have killed Penny Wristen on August 4, 1993 because she was seen alive by independent and honest witnesses after that date. Mr. Greenspan, however, raised three points about the review of the evidence and its relation to the defence position as follows: i. The trial judge failed to point out the differences in the circumstances between the mistaken identification by Mr. Traynor and the identifications by the four defence witnesses. ii. The trial judge did not accurately summarize Crown counsel’s cross-examination of Mr. Seager on his statement to the police. iii. It was not accurate to say that all four witnesses testified to seeing Penny Wristen long after the date of her alleged disappearance. Mr. Seager testified that he saw her the day after the disappearance and Shirley Connolly testified that she saw her about six weeks later. [49] While we will deal with each of these points in turn, we are satisfied that the trial judge adequately carried out his duty to fairly present the defence position and the evidence in support of that position. i. Treatment of the evidence of John Traynor [50] In his instructions about the frailties of eye-witness identification, the trial judge asked the jury to recall their own experience of possibly having been mistaken for someone else. To illustrate the point the trial judge referred to the evidence of Mr. Traynor. He reviewed the evidence and concluded with the observation that this was an example of “how easy it is to make a mistake with someone that you even know, and as you can see, members of the jury, the recognition of another person is more complicated than we might think it is”. The trial judge completed that part of the charge by urging the jury to “consider carefully what I have said to you about the evidence of eyewitnesses”. He then turned to a review of the evidence of the defence witnesses. [51] Neither at trial nor on appeal was it argued that this part of Mr. Traynor’s evidence was inadmissible. Accordingly, we need not deal with that question. However, this evidence was of slight probative value and it was not appropriate to compare that evidence to the evidence of the defence witnesses. Mr. Traynor’s evidence was, in this case, a poor example of the possibility of mistaken eyewitness identification because he had only a fleeting glance of the person he mistakenly identified as Penny Wristen. By comparison, the four defence witnesses had an adequate opportunity to observe the woman they identified and each provided a description, which included distinctive features matching those of Penny Wristen. Still we are not persuaded that the reference to Mr. Traynor’s evidence prejudiced the defence. The jury must be given some credit. They would have understood that the conditions under which Mr. Traynor mistakenly identified Penny Wristen were far different from the conditions under which the defence witnesses made their identification. ii. Treatment of the evidence of Gerald Seager [52] Mr. Seager’s evidence was important to the defence. He saw the woman believed to be Mrs. Wristen the day after her disappearance. The trial judge concluded his review of Mr. Seager’s evidence by reference to a statement he gave to the police. In the statement, Mr. Seager said: This woman definitely is or was similar in appearance and build to the woman described in the newspaper article. I don’t know if this may be of some help. It may indeed be another person altogether. [53] Mr. Seager was cross-examined on this statement as follows: [CROWN COUNSEL] Q.:"I don't know if this may be of some help. It may indeed be another person altogether."? A. Yes, I'm taking into consideration it was four in the morning. There was a slim margin of error, but. HIS HONOUR: There was what? A. Four o'clock in the morning. HIS HONOUR: And you said something about "There was a margin"? A. What I am saying is I'm taking into consideration there would be a slim margin of error. [CROWN COUNSEL] Q.: So you are allowing for the possibility that you may be mistaken? A. A small percentage. [54] In the charge to the jury, after summarizing Mr. Seager’s evidence in chief, the trial judge referred to the statement to the police as follows: He was confronted with his statement that he gave to the police and that statement read: "This woman was similar in appearance or build", and you will recall my earlier instructions to you concerning witnesses who made different statements at different times. That can go to assessing their credibility. And you will recall in cross-examination he admitted that he doesn't know if this may be of some help, and it may indeed be another person altogether. [Emphasis added.] [55] We agree with Mr. Greenspan that this was not an entirely accurate summary of Mr. Seager’s cross-examination. The cross- examination is set out above. Although he conceded a small percentage of error, this is consistent with his examination in chief to the effect that he was 98 to 99 percent certain it was Penny Wristen. It does not seem that he otherwise adopted the portion of the statement that it could be another person altogether. It would have been more accurate for the trial judge to add that when confronted with the statement to the police Mr. Seager conceded the possibility of a slim margin for error. On the other hand, the jury was instructed to make its own findings of fact. We do not consider the trial judge's omission to be serious. The jury would have fairly understood the overall tenor of Mr. Seager’s evidence and its significance for the defence. iii. The timing of the sightings [56] The trial judge began his summary of the defence position with the following statement: What is "such alternative"? You should consider and consider with care and concern the evidence of Gerald Seager, Shirley Connolly, Karen Pietrangelo and Ann Prevost, all of whom testified in respect of seeing Penny Wristen long after the date of her alleged disappearance. [Emphasis added.] [57] The statement that these sightings were “long after” the alleged disappearance was not accurate, at least for the witness Seager. However, we are satisfied that the trial judge did not intend to disparage the evidence by this comment. This comment was no more than a way of summarizing the defence position that Penny Wristen was still alive well after the Crown claimed that she was dead. Moreover, the trial judge later accurately summarized the evidence of these witnesses, including the dates of their encounters with the woman they believed to be Mrs. Wristen. d. Conclusion [58] In summary, therefore, we are not persuaded that these aspects of the trial judge’s charge on the eyewitness identification evidence called by the appellant, either individually or collectively, undermined the appellant’s defence or rendered his trial unfair. We would not give effect to this ground of appeal. 2. The burden of proof and making findings of fact [59] Mr. Greenspan submitted that the trial judge misdirected the jury in the approach to making findings of fact. That submission was based on a portion of the charge where the trial judge directed the jury along the following lines: Again, you decide what you believe and you put it into the pool. You apply the law to the pool and you decide whether or not the vital elements of the alleged offence have been proven beyond a reasonable doubt. [60] Mr. Greenspan argued that this was similar to the error found by this court in R. v. Miller (1991), 5 O.R. (3d) 678 (C.A.). In that case, the trial judge had used a colourful example that would have left the jury with the impression that only evidence accepted as true and reliable could be used on the crucial application of reasonable doubt. That error is of particular importance where there is exculpatory evidence that may not on its own be true and reliable but may nevertheless be capable of raising a reasonable doubt. That was the case in Miller, where the defence relied upon certain utterances by the deceased and the accused’s statement to the police. [61] In our view, when considered in context, the impugned instruction did not constitute misdirection. These instructions were part of a lengthy explanation of the approach to fact- finding that was generally in accord with the decision of the Supreme Court in R. v. Morin, [1988] 2 S.C.R. 345. The jury would understand that they could only find that the Crown had proved each of the elements of the offence on the basis of evidence that they accepted. Thus, Crown evidence that was suspect or undermined by cross-examination would not make it into the pool and thus would not be capable of proving the case against the appellant. The trial judge dealt with the exculpatory defence evidence separately and in different terms, which we have discussed above. 3. The position of the defence [62] We have already dealt with the principal defence position, that Penny Wristen was still alive after her alleged death at the hands of the appellant. Mr. Greenspan submitted that the trial judge also failed to adequately present the defence theory on certain other aspects of the evidence. This submission is not borne out when the charge is considered as a whole. The charge contained an exhaustive review of the evidence, including the cross-examination, that may have weakened certain aspects of the Crown’s case. For example, with respect to the blood spatter evidence, the trial judge read verbatim from a transcript of this evidence. While it might have been more helpful to the jury for the trial judge to have summarized that expert evidence, the approach he took was not wrong: Thériault v. The Queen, [1981] 1 S.C.R. 336. 4. Post-offence conduct (consciousness of guilt) [63] There was evidence of post-offence conduct by the appellant that was capable of supporting an inference of guilt, particularly his conflicting statements concerning the disappearance of his wife. The trial judge was therefore entitled to instruct the jury on the significance of this evidence. This case was tried prior to the decisions of this court and the Supreme Court of Canada in R. v. White (1996), 29 O.R. (3d) 577 (C.A.), affirmed [1998] 2 S.C.R. 72. The trial judge therefore directed the jury in accordance with a prior decision of this court4 that the inference of consciousness of guilt could only be made if the Crown proved beyond a reasonable doubt that the appellant’s statements were false. In this sense, the charge was unduly favourable to the appellant. The appellant submits, however, that the trial judge overstated the evidentiary significance of after-the-fact conduct evidence. In one portion of the charge, the trial judge directed the jury that if it is known and clear that an accused set up a false statement, he is “obviously trying to cover up and that is a sign from which you can infer a consciousness of guilt”. The trial judge also said that consciousness of guilt “may in some circumstances afford the strongest evidence … where nothing but hallucination or a mistake of the extraordinary or bizarre kind could otherwise explain the conduct”. [64] These generalizations were unfortunate and are not in accordance with the decision in White (see in particular p. 85). However, they are found in a lengthy and somewhat academic discussion of the concept of consciousness of guilt, divorced from the facts of the appellant’s case. When the trial judge actually turned to the facts of this case and instructed the jury how to apply the law to those facts he gave a correct, indeed overly favourable, direction to the jury. He said: It is for you, members of the jury, to say whether the accused made any false statements. The fact that an accused person has made a false statement may be considered evidence of consciousness of guilt and be considered by you in the light of all the other proved facts in deciding the question of guilt or innocence. It is not enough that you do not believe a statement made by the accused; you should only infer a consciousness of guilt if a significant statement made by him has been proven beyond a reasonable doubt to have been false. If you find that the accused did make these statements, or any of them, and that they were proved to be false, then you will ask yourselves whether he made those statements to conceal his part in the affair; that is to say to throw the police onto a false scent or hide his identity and put the blame on someone else, or whether there is some other explanation as, for example, fear of authority, embarrassment or panic. Not every false statement is evidence of a consciousness of guilt. It is for you to say what is the effect of this evidence and the significance, if any, to be attached to such evidence. And later: As I earlier directed you, the fact that an accused made false statements may be evidence of consciousness of guilt, and may be considered by you in the light of all the other proved facts when you are dealing with the guilt or innocence of the accused Andrew Wristen. If you find the accused did make the false statements to the police and to others, then you must ask yourselves whether he made those statements to conceal his part in the crime and throw the police on a false scent, hide his identity and put the blame on someone else, or whether there is some innocent explanation; for instance, fear, panic or embarrassment. Not every false statement, members of the jury, is evidence of consciousness of guilt. It is for you to say what is the effect of that evidence and the significance, if any, to be attached to it. [65] Finally, defence counsel, who was alert to the issue, made no objection to the charge on consciousness of guilt. Before the charge, defence counsel raised with the trial judge what evidence would be included in the instruction on consciousness of guilt. The trial judge said that he would refer only to the evidence of the appellant’s false statements. That was acceptable to defence counsel, who never raised the issue again. [66] We would not give effect to this ground of appeal. Accordingly, we would dismiss the appellant’s conviction appeal. The Appeal from Parole Ineligibility [67] The trial judge imposed a period of parole ineligibility of 17 years. The appellant submits that this period should be reduced for two reasons: the trial judge erred in principle in taking into account the appellant’s failure to disclose the location of the body as an aggravating factor; and 17 years is outside an acceptable range. [68] At the time of trial, the appellant was 48 years old. He had a criminal record dating back to 1963 but his only conviction for a crime of violence was the assault on his wife in October 1992, for which he received a suspended sentence and one year probation. Thus, he was on probation when he killed his wife. After killing his wife, he demeaned her character to others, including the police. He also tried to conceal her death, going as far as conscripting his daughter to assist him in the cover- up. [69] The appellant’s pre-sentence report was generally unfavourable, but did show that he had a difficult childhood. As an adult, the appellant had a history of alcohol abuse but nonetheless had been hardworking throughout most of his life. [70] In setting the period of parole ineligibility, the trial judge took into account the appellant’s character, including his previous criminal record, his history of abusing Penny Wristen, the nature of the offence, that is spousal murder, the appellant’s efforts to cover up the killing and the jury’s recommendations. The jury was not unanimous. Six jurors recommended periods of parole ineligibility ranging from 14 to 16 years, three jurors recommended periods ranging from 18 to 20 years and three jurors made no recommendation. [71] In sentencing the appellant, the trial judge also referred to and relied on the appellant’s failure to disclose the location of Penny Wristen’s body, thus denying the family the opportunity “to lay her body to rest”. The trial judge said: As well, I have reflected upon the two victim impact statements filed. I note that the sister, Susan Campbell, dramatically relates the “trauma and upheaval” the murder of her sister has had upon her life. The sister, Wendy Browes, described what she indicates has been a heartrending ongoing nightmare. She also relates that her tears now are out of frustration. “Once she is laid to rest I may cry tears of loss and begin to mourn.” Susan Campbell indicates, “Grieving cannot truly take place until we are able, if ever, to lay her body to rest.” You have chosen not to give them that opportunity. [72] The appellant submits that this passage amounts to an error in principle because the trial judge then used the appellant’s refusal to disclose the whereabouts of the body as an aggravating consideration in fixing the period of parole ineligibility. We do not agree with the appellant’s submission. [73] The appellant was not legally obliged to assist the police. He was entitled to exercise his right to silence and require the prosecution to prove the case against him beyond a reasonable doubt. Exercising this right is not an aggravating consideration on sentence. R. v. Kozy (1990), 74 O.R. (2d) 545 (C.A.). However, the trial judge did not offend this principle in relying on the appellant’s unwillingness to disclose the location of his wife’s body. Under s.744 (now s.745.4) of the Criminal Code, the trial judge, in fixing the period of parole ineligibility is required to consider both “the nature of the offence and the circumstances surrounding its commission.” The appellant undoubtedly took elaborate steps to cover up his crime and to dispose of his wife’s body where it could not be found. Having done so, he then refused to tell either the family or the authorities where the body was located. These were all circumstances surrounding the commission of the offence and the trial judge could properly consider them in fixing the period of parole ineligibility. [74] The appellant’s submission is similar to one made by the accused in R. v. Shropshire, [1995] 4 S.C.R. 227, and rejected by the Supreme Court of Canada. In Shropshire, the accused pleaded guilty to second degree murder. The trial judge increased the period of parole ineligibility, in part, because the accused offered no explanation for what appeared to be an execution-style killing. The Supreme Court held that the trial judge did not err in doing so. Iacobucci J. explained that once convicted, an accused who wants the minimum period of parole ineligibility must “play a somewhat more active role in the process.” At the sentencing stage, the Crown has already proved beyond a reasonable doubt that the accused has committed the crime for which he or she stood charged or, as in this appeal, the accused has pleaded guilty to the offence; if the accused then seeks to receive the least severe sentence commensurate with his or her conviction (i.e., for second degree murder, life imprisonment with eligibility for parole after 10 years have elapsed) it is incumbent upon the accused to play a somewhat active role in the process. I note that the right to silence is a manifestation of the presumption of innocence: R. v. Broyles, [1991] 3 S.C.R. 595; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Chambers, [1990] 2 S.C.R. 1293. The presumption of innocence flows to those “charged with an offence” or suspected of having committed one; once an individual has been convicted of an offence he or she is no longer simply “charged”. (at p. 248) [75] Therefore, in our view, the appellant’s hiding of the body and refusal to disclose its whereabouts were “circumstances” to be considered by the trial judge. Moreover, the trial judge did not unreasonably emphasize these circumstances. Thus, we would not give effect to the appellant’s first submission on sentence. [76] The appellant’s second submission is that a period of 17 years parole ineligibility is “demonstrably unfit”, or outside an acceptable range, even for the brutal murder of a spouse. In making this submission, the appellant relies on the recent decision of this court in R. v. McKnight (1999), 44 O.R. (3d) 263. In that case, a majority of the court reduced the period of parole ineligibility of a man convicted of the vicious second degree murder of his wife from 17 years to 14 years. Laskin J.A. canvassed and relied on several cases from this province in which “brutal second-degree murders of an unarmed wife or girlfriend” had attracted a range of 12 to 15 years parole ineligibility. But in McKnight, there were several significant mitigating circumstances that justified reducing the period of parole ineligibility and that have no counterpart in the present case. McKnight had no previous record; he was severely depressed when the crime occurred and even the Crown’s expert conceded that but for his depression, he would not likely have killed his wife; he expressed sincere remorse for what he had done; and he had positive potential for rehabilitation. Moreover, he made no attempt to cover up his crime or hide his wife’s body. [77] In contrast, the appellant here can claim few, if any, mitigating circumstances and can hardly deny the many aggravating considerations associated with his crime. The trial judge summarized his view of the appellant in these unflattering words: You are a cold and calculating person who viciously killed his wife and you then deliberately attempted to cloak your involvement in the crime. Your acts show you to be a person devoid of heart, conscience or feelings. [78] This case therefore differs significantly from McKnight. Unlike in McKnight, nothing in this case justifies interfering with the 17 year period of parole ineligibility, which the trial judge imposed in the exercise of his discretion after taking into account all the considerations in s.745.4 of the Code. We would not give effect to this ground of appeal. DISPOSITION [79] We would therefore dismiss both the conviction appeal and the appeal from the period of parole ineligibility. RELEASED: DEC 06 1999 Signed: "John Laskin J.A." RSA "Marc Rosenberg J.A." "I agree R.S. Abella J.A." _______________________________ 1 The judgment of this court was reversed by the Supreme Court of Canada (1990), 60 C.C.C. (3d) 161 on other grounds and without reference to this issue. 2 See, for example, R. v. Lorentz-Aflalo (1991), 69 C.C.C. (3d) 230 (Que. C. A.) at 263-65. 3 Affirmed, [1998] 1 S.C.R. 977. 4 R. v. Court (1995), 99 C.C.C. (3d) 239 (Ont. C.A.).