R. v. Ferguson

R. v. Ferguson Collection Decisions of the Court of Appeal Date 2000-02-14 Docket numbers C30011 Judges Abella, Rosalie Silberman; Laskin, John Ivan; Feldman, Kathryn N. Subject Criminal Decision Content DATE: 20000214 DOCKET: C30011 COURT OF APPEAL FOR ONTARIO ABELLA, LASKIN and FELDMAN JJ.A. BETWEEN: ) ) Michelle K. Fuerst HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) - and - ) M. David Lepofsky and ) Greg Tweney LORIE FERGUSON ) for the respondent ) Appellant ) ) Heard: May 12, 1999 On appeal from the judgment of The Honourable Mr. Justice Hurley with a jury dated May 23, 1998. ABELLA J.A.: [1] Lorie Ferguson was found guilty by a jury of second degree murder in the shooting death of her spouse David Rick Horne. The only issue at trial was intent. The Crown’s case on that issue was entirely circumstantial. Ms. Ferguson testified that the death was an accident. A previous trial had resulted in a hung jury. [2] Although other grounds of appeal were raised, in my view the disposition of this appeal turns on whether the trial judge was correct in acceding to the jury’s request during its deliberations for a copy of the Crown’s closing submissions. Background [3] Ms. Ferguson and Mr. Horne had lived together for 14 years. By all accounts, the relationship was warm and affectionate. They had two daughters, Jennifer, born in 1983, and Simone, born in 1989. [4] Ms. Ferguson, who gave evidence at the trial, stated that the relationship was an excellent one. The only serious argument they ever had occurred in the early 1990s while the family was living in British Columbia. Mr. Horne had forced Ms. Ferguson out of their home, causing her to sleep in the car overnight. They reconciled the next day. In addition, Mr. Horne had slapped her on two occasions years earlier, but after the second time, she told him that if he ever hit her again, she would leave him. He never did. [5] The couple owned four hunting rifles, which they kept in a locked gun cabinet in their basement. The ammunition case was also locked. One of the guns belonged to Ms. Ferguson, a .303 calibre sporting rifle which had been modified for her. Both Mr. Horne and Ms. Ferguson had the proper gun licences and, although Ms. Ferguson was not as adept at using her rifle as Mr. Horne, both of them knew how to use the guns. [6] The most pressing family problem was financial. Both Ms. Ferguson and Mr. Horne drank heavily, drinking a total of 24-36 beers daily. This represented a monthly expense of around $800, which affected their ability to keep up payments on debts such as their mortgage. [7] Mr. Horne was the only one who had paid employment. As a result of Mr. Horne’s death, Ms. Ferguson lost her home, her car, and became dependent on social assistance. [8] Mr. Horne was taking amitriptyline, a medication his doctor prescribed to counteract bouts of depression. [9] Sunday, June 16, 1996 was Father’s Day. Ms. Ferguson and Mr. Horne spent the day at the home of their friends, Dan Gorman and Angie Wilson. Their daughters remained at home. [10] They arrived at the Gorman/Wilson home at 10:30 a.m. and remained until around 4:30 p.m. Ms. Ferguson had 4 or 5 beers in the course of the day. Mr. Horne had 7 or 8, and smoked some hashish oil. [11] Ms. Ferguson had originally planned to cook a roast for dinner, but when it appeared that she and Mr. Horne would not be home in time, she called her daughter Jennifer and asked her to put the meat back in the refrigerator. [12] Back at their own residence, Ms. Ferguson and her daughters planted some flowers she had bought earlier in the day. Mr. Horne drank at least one more beer. After the planting, Mr. Horne got angry at Ms. Ferguson because she was not cooking the roast for dinner. Ms. Ferguson’s assertion that it was too late for her to cook it, led to an argument during which Mr. Horne complained about Ms. Ferguson not having a job. In the course of the argument, he called her a “lazy bitch”. [13] Ms. Ferguson interrupted the argument to feed their daughters, who then took showers in the basement and went to bed around 7:30 p.m. [14] After the girls went to bed, Ms. Ferguson and Mr. Horne sat on the couch drinking beer, and continued the argument about the roast and Ms. Ferguson not having a job. [15] At around 8:00 p.m., Mr. Horne went upstairs to the bedroom. Ms. Ferguson followed, carrying the two glasses of water she brought to the bedroom nightly so they would have water to drink during the night to alleviate the dehydration caused by the amount of beer they drank daily. [16] The argument continued briefly in the bedroom. Ms. Ferguson said that she and Mr. Horne usually slept in the nude, and that she was therefore surprised to see him suddenly leave the bedroom without any clothes on, something he never did. He returned, according to her evidence, with a rifle which he aimed at her, telling her to get out. Ms. Ferguson told him she would leave the next day. The rifle Mr. Horne was holding belonged to Ms. Ferguson. There was no dispute that it was the first gun visible when the gun cabinet in the basement was opened. [17] Ms. Ferguson testified that he came towards the bed with the gun. It never occurred to her that the gun was loaded. She and Mr. Horne were then both kneeling on the bed, facing each other. She pushed him and tried to knock the rifle out of his hand. A struggle ensued and a shot was fired. Ms. Ferguson said that she found herself holding the gun, but did not know how the gun was fired or who fired it. [18] She called the police immediately, who arrived within minutes. She sat in the police cruiser talking to a police officer for about 25 minutes. She was crying and visibly shaken. She told the police that she and Mr. Horne had argued; that Mr. Horne had gone downstairs and returned to the bedroom with a gun, telling her to leave or he would kill her; that they had fought on the bed over the gun; and that she did not know how the gun discharged. [19] The next day, June 17th, she received a call asking her and her daughters to come to the police station. At the station, Ms. Ferguson was cautioned and told that she had the right to call a lawyer. She declined the offer and proceeded voluntarily to give a 3-hour videotaped statement to the police, which was not introduced at trial. [20] At trial, the older daughter, Jennifer, testified that she could tell the difference between her parents’ footsteps, and that the last footsteps she heard going down to the basement and then back up to the bedroom on June 16th, were those of her father. When questioned by police the day after the shooting, she told them that she had heard a bang, but did not mention hearing her father’s footsteps going down to the basement. When asked at trial why she did not give this information to the police on June 17, 1996, she said that nobody had asked her about it and that she did not know it was important information. [21] Jennifer had a good relationship with both of her parents, but was closer to her father. [22] Footprint evidence was gathered in the basement, but resulted in only 10 footprint imprints being found, most of them identified as belonging to Ms. Ferguson. None of them belonged to Mr. Horne or Simone, despite uncontradicted evidence that all four members of the family had been in the basement on June 16th. Jennifer Horne said that she and her sister Simone went to the basement 10 or 15 times that day. [23] In his charge, the trial judge told the jury to disregard the evidence of the footprint expert because it was of doubtful probative value given how few footprints were taken and that there was no way to determine how old they were. [24] No fingerprints were found on the gun or in the house. [25] William Robinson, the forensic toxicologist, found that Mr. Horne had 254 mg of alcohol per 100 ml of blood in his system at the time of his death, the equivalent of 10 ½ beers, plus some amitriptyline and some tetrahydrocannabinol (THC), the active ingredient in marijuana or hashish. His evidence was that as a result, Mr. Horne probably had impaired judgment and coordination. [26] The defence expert in toxicology, Dr. Harold Kalant, testified that the combination of alcohol, hashish and drugs had an additive effect, with each component enhancing the effect of the other. The additive effect meant that Mr. Horne’s level of intoxication would have resembled 280 or 300 mgs of alcohol per 100 ml of blood in his system. [27] Expert evidence was led at trial about how the bullet entered Mr. Horne’s body. But the experts called on behalf of the Crown acknowledged on cross-examination that it was not inconceivable that the death could have occurred accidentally in the way the defence suggested. Specifically, the experts could not rule out the possibility that there had been a struggle on the bed, with Mr. Horne falling backwards and hitting the mattress just as the bullet was discharged from the gun. [28] The Crown’s closing statement was a reiteration of all of the evidence supporting its theory that Ms. Ferguson intended to shoot and kill Mr. Horne. He reviewed the evidence and invited the jury to infer that Ms. Ferguson went to the basement, took out the gun, loaded it, took it upstairs, and shot Mr. Horne as he was sleeping. Because that was the only reasonable inference the Crown felt the jury could draw from the evidence at trial, all of its arguments in the closing statement reinforced that theory. [29] In his closing statement, counsel for Ms. Ferguson referred to the Crown’s evidence and tried to persuade the jury that it was equally consistent with Ms. Ferguson’s defence that the death of Mr. Horne was an accident. He pointed out that the couple had enjoyed a close relationship, and that Ms. Ferguson had no motive to kill her spouse - her closest companion and the sole breadwinner in the family. [30] About 2 and a half hours after retiring to deliberate, the jury asked for a transcript of that part of the judge’s charge relating to manslaughter. Two hours later, the jury asked for a transcript of the Crown’s closing statement. [31] The exchange that took place between the trial judge and both counsel indicates that the request for a copy of the Crown’s jury address appeared to have been treated by all of them as an uncontroversial one. While it is true that the trial judge did not, strictly speaking, seek to canvass the opinions of counsel but put it to them as a fait accompli, it is also true that there is no indication that defence counsel had any concern about complying with the jury’s request, as the following exchange reveals: THE COURT: Gentlemen, I have a message from the jury. “Dear Judge: We would like the transcript of the Crown’s closing statement.” I’ve just spoken to Mrs. Ellis, and she says that it would take her two hours. And looking at that transcript, how long do you expect it would take you to read it. THE REPORTER: Quicker than Mr. Woods gave it. THE COURT: Mrs. Ellis says it would take an hour and a half to two hours to transcribe that, and of course it would take a good deal less to read it. What do you suggest we do? May I suggest that, should we speak to the jurors and ask them which they want, give[n] Mrs. Ellis’ estimates? [Crown counsel]: I’m quite content with that, Your Honour. [Defence counsel]: Yes, Your Honour. THE COURT: And in either case we’ll accede to their request. Is that agreed? [Crown counsel]: Yes. [Defence counsel]: Yes. [Emphasis added.] [32] There is no suggestion that there was anything in any way inappropriate in the Crown’s closing statement. [33] The charge to the jury was fair and balanced. [34] In total, the jury deliberated for 9 hours. [35] The appellant’s position is that the trial judge erred in giving the jury only the Crown’s closing submission. While a trial judge clearly has a duty to assist jurors with questions they may have in the course of their deliberations, this assistance, the appellant argues, must be rendered in a way which safeguards the fairness of the trial. In a case such as this, where the Crown’s case is based on inferences rather than direct evidence, the trial judge ought to have refused the jury’s request, or at least arranged to have the closing statement of the defence also read or given to the jury. Given the circumstantial nature of the evidence, the appellant argued, it could not be said that leaving only the Crown’s closing statement with the jury caused no prejudice to the accused. [36] The Crown, on the other hand, argued that the trial judge was entitled to respond to the jury’s request in a complete way, since jury questions reflect a problem the jury is having and therefore require a careful and full response. Although when a transcript of some of the evidence is requested by the jury, the trial judge is generally required to give both the direct examination and the cross-examination of the witness on that point, this does not mean that the trial judge is prohibited from providing the jury with a transcript of only one counsel’s closing address. [37] Moreover, the Crown argued, there was no prejudice to the accused in this case for the following reasons: (a) At trial, defence counsel did not object to complying with the jury’s request, nor did he ask that his closing address also be given to the jury. (b) The defence theory was simple and straightforward, and the jury would have been familiar with it. The fact that the jury did not ask for a copy of the defence counsel’s closing statement is an indication that it was, or felt itself to be, sufficiently familiar with the defence’s arguments not to require that its memory be refreshed. (c) The trial judge’s charge was extremely fair and reviewed the defence arguments carefully. It made particular reference to the obvious weaknesses in the Crown’s case, including the lack of motive, the inadequacy of the footprint evidence, the concession by the Crown’s experts that the defence counsel’s version of events was possible, the fact that Ms. Ferguson’s explanation of what happened never wavered, and the fact that Jennifer Horne’s explanation for not mentioning her father’s footsteps to the police was a reasonable one. (d) The defence counsel’s closing statement itself made consistent references to the Crown’s theory of the case and the evidence upon which the Crown was relying. The jury, therefore, would in any event have been reminded of the Crown’s theory if it had re-read the defence’s closing statement. (e) The Crown’s closing statement was brief and consistent with the theory it had promoted throughout the trial. (f) The fact that the jury continued to deliberate that evening and into the next morning after receiving the Crown’s closing address, demonstrates that it gave careful consideration to the evidence and was not immediately persuaded by re-examining the Crown’s jury address. (g) There is no guarantee that providing the jury with the defence’s closing statement would have meant that the jury would have read it. It was more likely that the jury would only have read what it asked to see. (h) The requirement to give the jury all aspects of an evidentiary point when it requests a portion of a witness’s evidence, the Crown argued, reflects the need to ensure that the jury’s decision is based on all the relevant evidence. The requirement that the entire portion, not just the requested part, be given to the jury when it asks a question about a legal point in the judge’s charge, stems from the requirement that the jury receive all relevant assistance about the law in making its deliberation. The Crown’s closing address, however, is neither evidence nor law; it is merely argument. Analysis a) Failure to object [38] The failure of defence counsel to object, while a factor to consider, is not a bar to consideration of an issue on appeal. (See R. v. Cullen, [1949] O.R. 10 (C.A.); R. v. Lomage (1991), 2 O.R. (3d) 621 (C.A.); R. v. G.D.D., [1998] O.J. No. 4846 (C.A.) (Q.L.); R. v. Ramos (1997), 101 O.A.C. 211; R. v. Corriveau (1985), 19 C.C.C. (3d) 238; R. v. Mullins-Johnson (1996), 31 O.R. (3d) 660 (C.A.), appeal dismissed, [1998] 1 S.C.R. 977; and R. v. J.F.A. (1993), 82 C.C.C. (3d) 295 (Ont. C.A.); R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Arcangioli, [1994] 1 S.C.R. 129). [39] Nor does the failure to object relieve the trial judge from overall responsibility for ensuring a fair trial. As Justice L’Heureux-Dubé said in R. v. Hodgson, [1998] 2 S.C.R. 449: Notwithstanding this responsibility borne by the accused [and the accused’s counsel to competently make tactical decisions and responsibly represent the client’s best interests], a trial judge still has the basic duty of ensuring the fair conduct of a criminal trial apart from lapses of counsel. (at p. 509) [40] In this case, it cannot be said that defence counsel’s failure to object represented a tactical decision. It was, in my view, more in the nature of the kind of “lapse” referred to in the above-quoted passage from Hodgson, and cannot insulate from review a significant decision by the trial judge affecting the fairness of the trial. b) Providing the jury with the Crown’s closing address [41] The importance of a closing statement cannot be underestimated. As the Supreme Court stated in R. v. Rose, [1998] 3 S.C.R. 262: … few would deny the powerful persuasive force which well-crafted and skillfully presented submissions may have in a jury trial. … (at p. 320) … Although not all jury addresses are, in actuality, either logically or rhetorically persuasive, there can be no denying the role of a party’s persuasive skill in influencing the result in some jury trials. … (at p. 322) [42] In their closing submissions, the Crown and defence marshal the evidence and the arguments which support their respective theories. Each tries to persuade the jury to find in their favour based on the evidence, and reinforces these evidentiary arguments with rhetorical ones. [43] Although the Rose decision dealt with the constitutionality of a requirement that the defence make its closing statement to the jury first if it has called evidence, much of the analysis dealt with the significance of closing statements to the jury. As Rose common sensically confirms, a closing statement is intended to have, and may very well have, persuasive effect. [44] The closing statement of the defence , as Rose states, serves a distinct purpose: … The defence jury address is both a response to the Crown’s evidence and a defence against the argument and persuasion to be contained in the Crown jury address. (at p. 319) [Emphasis in original.] [45] Given that the defence’s closing statement is both “a response to the Crown’s evidence and a defence against the argument and persuasion” contained in the Crown’s closing statement, it seems logical to conclude that maintaining a balanced deliberative process includes giving the jury the same access to the defence’s closing statement that it has to the Crown’s closing statement. [46] The principle is well established that the jury should have complete information in response to its questions. (See R. v. Ménard, [1998] 2 S.C.R. 109; R. v. Keegstra (1994), 92 C.C.C. (3d) 505 at 561 (Alta. C.A.), per Foisy J.A., dissenting, affirmed, [1996] 1 S.C.R. 458; Olbey v. The Queen, [1980] 1 S.C.R. 1008 at 1026-30; R. v. Ostrowski, [1990] 2 S.C.R. 82 at 83, per Cory J.; R. v. Daly (1992), 57 O.A.C. 70 (C.A.) at 76; R. v. Thomas (1987), 20 B.C.L.R. (2d) 241 at 251-53 (B.C.C.A.), per Lambert J.A.; R. v. D.D. (1998), 129 C.C.C. (3d) 506 (Ont. C.A.). [47] In my view, there is no conceptual distinction between giving the jury the benefit of all relevant, related aspects of a witness’s evidence or of a judge’s charge despite its request for only a portion, and giving the jury the benefit of all relevant, related sides of the closing advocacy. If it is a requirement that any portion of the evidence requested by the jury be presented in a balanced way by the trial judge, then surely the same duty should apply if it is one party’s version of the whole of the evidence that is requested. Giving the jury only the Crown’s version of relevant information without also giving the defence’s responsive version could, without doubt, cause prejudice to the accused. [48] The following comments by Estey J. in Cathro v. The Queen, [1956] S.C.R. 101, are analytically transferable to the issue in this case, notwithstanding that they were made about a request for a portion of the judge’s charge to the jury: It may be that a section of the Code, or even a small passage of a learned trial Judge’s charge, with the consent of counsel concerned, may be handed to the jury, but even then the question must remain whether, in the circumstances, there has been prejudice or miscarriage of justice. Where, however, as here, the transcribed part of the charge contains important references to the evidence and contentions made on behalf of the Crown, and but slight reference to the evidence and none of the contentions on behalf of the defence, there can be no doubt but that the giving of such portion to the jury ought not to be permitted. (at p. 115) [Emphasis added.] (See also R. v. Hajian (1998), 124 C.C.C. (3d) 440 (Que. C.A.); R. v. Khela (1991), 68 C.C.C. (3d) 81 (Que. C.A.); and R. v. C.(R.A.) (1990), 57 C.C.C. (3d) 522 (B.C.C.A.). [49] The Crown’s closing statement to the jury in this case was not a balanced review of the evidence, nor was it required to be. Its purpose was to emphasize the evidence that supported the Crown’s position that Ms. Ferguson should be found guilty of murdering her husband. It was, therefore, as it was entitled to be, an exercise designed to persuade the jury that, based on the evidence available, it ought to infer Ms. Ferguson’s guilt. [50] The issue, it seems to me, is not the content of the Crown’s closing submission nor even its effectiveness. It is the reality of its inevitably partisan character that is at issue, namely, a final reminder to the jury of why the accused should be found guilty as charged beyond a reasonable doubt. This, it seems to me, argues for the countervailing balance of a refutation of these arguments so that in a case such as this, the jury is assisted as fully and fairly as possible in its deliberations. The importance of maintaining not only the fact of a balance but also its appearance, was stressed in Rose: In the course of correcting the addresses of counsel, the trial judge should deal in a fair and balanced fashion with both sides of the case. The curative instructions should not indicate that the judge is favouring the arguments of one party over another … (at p. 332) [51] Far from interfering with the judge’s responsibility to assist the jury by answering its questions fully and fairly, providing the jury with both the defence and the Crown’s closing statements complies with and enhances, rather than detracts from this responsibility. The failure, on the other hand, to provide the jury with the defence’s answers to the Crown’s arguments risks, in this case, both an imbalance in the deliberative process and the serious possibility of prejudice to the accused. [52] In the case before us, the impact of providing only the Crown’s closing statement to the jury was clearly prejudicial to the appellant, especially given that the case turned on competing inferences rather than direct evidence. Because the jury had a copy of only the Crown’s closing statement and nothing from the defence, the appellant lost an opportunity to which she was entitled, to defend herself against the Crown’s case. [53] One side argued forcefully that an accident occurred, and the other alleged that there was an intention to kill. Given the history of the relationship between the parties, the shooting represented what appeared to be an anomalous event. The jury had to weigh conflicting theories about what happened in the absence of clear evidence or motive. For every argument the Crown made – and effectively made - in its closing statement, the defence was able in his closing address to provide a realistic explanation and counter theory. It seems to me that in these circumstances, it was imperative that the jury be left with both sets of arguments. [54] This is not a case where the proviso can be applied. The error in giving the jury only the Crown’s closing address affected the fairness of the trial, and it cannot, therefore, be said that there was no substantial wrong or miscarriage of justice. [55] Based on the prejudice to the accused flowing from permitting the jury to review a copy of only the Crown’s closing statement, I would allow the appeal, set aside the conviction, and order a new trial. Released: February 14, 2000 “RSA” “R.S. Abella J.A.” “I agree K. Feldman J.A.” LASKIN J.A. (dissenting): [56] Abella J.A. concludes that giving the jury a transcript of the Crown’s closing address affected the fairness of the trial. In her view the jury also should have been given a copy of the defence’s closing address. Abella J.A. would therefore set aside the appellant’s conviction for second degree murder and order a new trial. [57] I disagree with my colleague’s conclusion. The jury asked only for the Crown’s closing; they did not ask for the defence’s closing. Both counsel, Crown and defence, agreed that the jury should be given what they had asked for and nothing more. The Crown’s closing address was quite short, it was not inflammatory, indeed it was not even overly partisan. I am not persuaded that giving the jury only the Crown’s address caused a miscarriage of justice in this case. [58] Although the effect of giving the jury a copy of the Crown’s closing was the main ground of appeal, the appellant also argued five other grounds of appeal. They were: 1. the verdict was unreasonable; 2. the trial judge erred in permitting the Crown to lead the evidence of an expert on footprints without first holding a voir dire; 3. the trial judge erred in failing to admit a videotaped statement made by the appellant; 4. the trial judge erred in refusing to admit the evidence of a defence expert on memory; and 5. the trial judge erred in his instruction to the jury on credibility. I would not give effect to any of these additional grounds of appeal. I would therefore dismiss the appellant's appeal from her conviction. I will deal with these other grounds of appeal before discussing the appellant’s main submission. First Issue: Was the verdict unreasonable? [59] Abella J.A. has adequately summarized the factual background. As my colleagues would order a new trial, I will say little more about the facts. The case focused on whether the appellant or her husband David Rick Horne retrieved the rifle from the basement, and on what happened in the bedroom during the evening of Sunday, June 16, 1996. The defence’s theory was that Mr. Horne went and got the rifle, and that the appellant accidentally shot him with it during a struggle between the two of them. The Crown’s theory, accepted by the jury, was that the appellant went down to the basement, got the rifle, and took it into the bedroom, where she deliberately shot her husband while he lay in bed, likely asleep. [60] To make out an unreasonable verdict the appellant must show that no properly instructed jury could reasonably have convicted her.1 The appellant argues that because the evidence of motive was weak and because none of the Crown’s experts could rule out her version of what happened, the verdict was unreasonable. [61] I do not agree with the appellant’s submission. Although the evidence of motive was weak the Crown otherwise presented a strong case against the appellant. Not only were the Crown’s experts very skeptical of the appellant’s explanation, their testimony provided ample evidence on which a properly instructed jury could convict the appellant. [62] The following evidence supports the reasonableness of the verdict: the rifle was in the appellant’s hands when it went off; she owned the rifle and had been trained in how to use it; the rifle could not discharge on its own; for the rifle to go off 5.5 lbs. of pressure had to be applied to the trigger and only the appellant could have pulled the trigger; when Mr. Horne was shot he was lying on his right side, or on his back, on the bed; the amount of alcohol he had consumed – showing 254 mg of alcohol in 100 ml of blood when he died – would have left him unsteady, clumsy, uncoordinated and without fine motor skills, if not asleep; yet for the appellant’s explanation to be true, Mr. Horne, in just a few minutes, would have had to walk down two flights of stairs, unlock the gun cabinet, take out the rifle, unlock the ammunition drawer, load a single bullet into the rifle, unlock and remove the trigger lock from the rifle, and return up two flights of stairs; although the footprint evidence was inconclusive, one thing was clear: none of the footprints was made by Mr. Horne; when Mr. Horne was intoxicated and depressed, as he was the evening he was killed, he was ordinarily “really really quiet,” never violent. All of this evidence shows that the conviction was reasonable. I would therefore dismiss this ground of appeal. Second Issue – Did the trial judge err in permitting the Crown to lead the evidence of an expert on footprints without holding a voir dire? [63] The Crown led the evidence of an expert on footprints, Sergeant Kennedy, to show that the appellant, not her husband, retrieved the rifle from the basement of their home. Sergeant Kennedy examined ten footprints in the basement area. He concluded that neither Rick Horne nor his daughter made any of the footprints. The appellant likely made three of the footprints, could have made one other, and could not be ruled out from having made the other six. [64] The appellant submits that the trial judge erred in admitting Sergeant Kennedy’s evidence without holding a voir dire into his qualifications and into whether footprint analysis was a recognized field of expertise. The appellant concedes that defence counsel at trial did not object to the admissibility of Sergeant Kennedy’s evidence, but argues that the trial judge nonetheless should have scrutinized the evidence to ensure its admission would not distort the jury’s fact finding process. [65] I find no merit in this submission. Although no formal voir dire was held, Sergeant Kennedy testified regarding his qualifications and the international recognition accorded footprint analysis and comparison as a field of expertise. This evidence showed that since 1968 footprint analysis has been the subject of expert opinion evidence in countries throughout the world, including the United States and Canada, and that Sergeant Kennedy is one of the Canadian experts in the field. [66] Defence counsel asked Sergeant Kennedy no questions about either his qualifications or his being able to express an opinion on the ten footprints in question. Instead, in response to the Crown’s request that Sergeant Kennedy “be allowed to give his opinion evidence in the field of bare foot comparison,” defence counsel said “I have no questions of this witness about his qualifications, nor any argument to make.” Defence counsel, in my view, recognized that Sergeant Kennedy’s opinion evidence met the criteria for admissibility established by the Supreme Court of Canada in R. v. Mohan.2 Indeed, two other appellate courts have already accepted footprint analysis as an appropriate subject for expert evidence.3 [67] Moreover, I have little concern that Sergeant Kennedy’s evidence would have distorted the jury’s fact finding deliberations. The evidence itself was inconclusive and the trial judge suggested to the jury that it was “of questionable significance.” I would not give effect to this ground of appeal. Third Issue – Did the trial judge err in failing to admit a videotaped statement made by the appellant? [68] The appellant submits that the trial judge erred by allowing the Crown to lead evidence of her statement to the police on the evening of Mr. Horne’s death, without also requiring the Crown to put in evidence the videotaped statement she gave the following day. The appellant argues that the two statements were linked, that they formed one narrative. If one went in, the other had to go in too. [69] The trial judge applied the proper principle in rejecting this argument. He concluded, “[t]he two statements were not part of one continuous statement. They were separated by time and they were made in different circumstances. The second statement was not related to the first. It was not so closely related to the first as to form part of it.”4 [70] This conclusion is supported by the record. There was a material gap in time between the two statements. The first was made on the night of the shooting; the second was made the next day. The intervening period gave the appellant adequate time for reflection and preparation for her second interview. The two statements were made in different places. The first was made at the appellant’s home, the second at the police station. And the two statements were made under different circumstances. When she gave the first statement the appellant was not a target of the investigation. By the time she gave the second statement, she was a target and was therefore cautioned under s. 10(b) of the Canadian Charter of Rights and Freedoms. For these reasons the two statements did not form one narrative. Thus it was not unfair to permit the Crown to introduce only the first statement. [71] In this court the appellant made an alternative argument for admitting her videotaped statement. She claimed that admitting the statement would have given the jury an opportunity to assess her explanation and her demeanor closer to the time of the shooting, and therefore could have favourably affected the jury’s assessment of her credibility. The appellant argued that because she testified and could have been cross-examined on the statement, no prejudice would have been caused by its admission. As the Crown pointed out, however, this alternative argument for admitting the statement offends the well-established rule against using an accused’s previous consistent statement to bolster credibility at trial. The rationale for the rule, applicable here, is that the previous statement lacks probative value because her explanation is not made more probable or trustworthy by having repeated it..5 I would not give effect to this ground of appeal. Fourth Issue – Did the trial judge err in refusing to admit the evidence of a defence expert on memory? [72] When Crown counsel cross-examined the appellant he tried to cast doubt on her credibility by showing that she could not remember how she and her husband were positioned on the bed just before the shooting. To rebut the Crown’s cross-examination, the defence tried to lead the opinion evidence of a psychologist, an expert on human memory. The psychologist’s proposed evidence was that highly charged or emotional events may not be remembered clearly or in detail. The trial judge, however, ruled the evidence inadmissible, relying on this court’s decision in R. v. McIntosh,6 and concluding that the psychologist’s proposed evidence “is not outside the normal experience of jurors.” [73] In my view, the trial judge’s ruling was reasonable. His ruling turned on one of the Mohan criteria for the admissibility of opinion evidence, “that the opinion be necessary in the sense that it provides information which is likely to be outside the experience and knowledge of a judge or jury.”7 The psychologist’s proposed expert evidence did not meet this criterion. The appellant did not suggest that she had any unusual difficulty in remembering past events. The inability to recall details of highly charged incidents is something we all experience. Indeed, the trial judge so charged the jury, in terms favourable to the appellant: If they were struggling over the gun, it may be that you may not find it surprising that Miss Ferguson cannot recite every minute detail of the incident. If it occurred as she said it did, would it not be, for her, stunning and shocking? Such a state of mind may not be conducive to a precise recall of all of the details, particularly if she had been drinking before the incident occurred. I would not give effect to this ground of appeal. Fifth Issue – Did the trial judge err in his instruction to the jury on credibility? [74] The appellant submits that the trial judge left the jury with the erroneous impression they could convict her even if they believed her version of what occurred. In support of this submission the appellant relies on the following passage in the trial judge’s charge: Whether or not you believe Miss Ferguson, it is only after you review all of the evidence and conclude that the Crown has proved to you beyond a reasonable doubt that Mr. Horne’s death was not the result of an accident, that you will then consider whether the Crown has proved that Miss Ferguson had the intent which is an essential element in a conviction for murder … [75] This instruction is not obviously wrong. How the jury interpreted it likely depends on the way the trial judge said the words. What he undoubtedly intended to tell the jury was that even if they did not believe the appellant, they could convict her only if on their review of the evidence the Crown had proved its case beyond a reasonable doubt. [76] However, even if this passage might have been clearer, the rest of the charge contains numerous correct references to the burden on the Crown. To take but two examples, early in his charge the trial judge accurately instructed the jury how they must deal with the appellant’s evidence and the Crown’s burden of proof: In connection with the evidence given by Miss Ferguson I charge you in this way. She is in the same position as any other witness in the matter of credibility. If you believe her evidence that she did not commit the offence, or if her evidence standing alone or together with the other evidence, leaves you in a state of doubt, you must acquit her. But if upon a consideration of all of the evidence, the arguments of counsel and these remarks of mine you believe that Miss Ferguson has been proven guilty beyond a reasonable doubt as I have defined it to you, it is your duty to convict her. This instruction complied with the Supreme Court of Canada’s directive in R. v. W.(D.).8 [77] Then, near the end of his charge the trial judge properly warned the jury against convicting the appellant simply because it preferred the Crown’s version of what occurred: What happened in the bedroom is decisive. Counsel have placed the case before you with clarity and with imagination. The issues are clearly drawn. However, where the Crown argues that a certain thing or series of things occurred, and the accused argues that something completely different occurred, there is a tendency to say or think, “which one do I prefer”, as if your verdict depended on that answer. Because this is a criminal case, and the onus is on the Crown to prove its case beyond a reasonable doubt, that is not the correct approach. In this case, as in any criminal case, the only correct approach in question form is this. Has the Crown proved its case beyond a reasonable doubt? If it has, you will convict Miss Ferguson. If it has not, you must acquit her. I would not give effect to this ground of appeal. Sixth Issue – Did the trial judge err by giving the jury a copy of the Crown’s closing address? [78] The appellant’s main submission is that the trial judge erred by giving the jury a transcript of the Crown’s closing address. Either the trial judge should have refused the jury’s request for the transcript or he should have given the jury a transcript of both the Crown’s closing and the defence’s closing. Giving the jury only the Crown’s closing, the appellant submits, was so prejudicial that it resulted in a miscarriage of justice. [79] To put this submission in context I will briefly outline what occurred. The trial judge completed his charge at noon on May 22, 1998, and the jury retired. Both counsel made brief submissions on the charge and the trial judge then said that he was not going to re-charge the jury. At 2:40 p.m. the jury asked for a copy of the trial judge’s instructions on manslaughter. Both counsel agreed that the jury should have these instructions in writing and the court reporter was asked to prepare the transcript. [80] At 4:33 p.m. the jury asked for “the transcript of the Crown’s closing statement.” The trial judge then spoke to the reporter, who said preparing the transcript would take one and one-half to two hours. The trial judge observed that reading the Crown’s closing would take much less time. He suggested to counsel that the jury be asked whether they wanted the transcript or just wanted the closing read to them. Both counsel agreed that the jury should be given the choice. The trial judge then said, “and in either case we’ll accede to their request. Is that agreed?” Each counsel expressly said “yes.” Neither counsel suggested that the jury also be read or be given a copy of the defence’s closing address. The jury retired and returned in a few minutes to say that they wished the transcript. The court reporter was asked to prepare it and the jury took their dinner break. [81] The court reconvened at 7:45 p.m. Each juror was given a copy of the trial judge’s instructions on manslaughter and the Crown’s closing address. The jury then deliberated until 9:30 p.m. but could not reach a verdict. They continued their deliberations the following morning just after 9:00 a.m. Again, neither counsel, nor for that matter the trial judge, raised any concern about the jury having only the Crown’s closing. The jury deliberated until 11:40 a.m., when they announced they had reached their verdict convicting the appellant. [82] I begin my discussion of the appellant’s submission with four propositions, which I do not believe are controversial. First, the trial judge was obliged to assist the jury in response to their request for the Crown’s closing. He would have committed a reversible error had he ignored their request.9 [83] Second, although the trial judge could have read the closing address to the jury or reviewed it with them, he did not err in law by giving them a transcript. In both R. v. Cathro10 and R. v. Menard,11 the Supreme Court has recognized that giving the jury transcripts, though raising concerns in some cases, is not in itself an error, particularly where, as in the present case, counsel consent. [84] Third, when the jury asks for one counsel’s closing address the trial judge is not required in law to give the jury the closing addresses of other counsel, even if there is more than one accused on trial. I expect that many trial judges, if faced with the request from the jury made to the trial judge in this case, would have given the jury copies of both closings or at least canvassed with counsel the desirability of doing so.12 It may well have been preferable had this trial judge done so. Nonetheless, he did not err in law by giving the jury only the Crown’s closing, even acknowledging that the position of the Crown and the defence are not always identical because of our concern for the rights of the accused. [85] In R. v. Khela and Dhillon13 two accused were charged with conspiracy to commit murder. After hours of deliberation, the jury asked to listen to the addresses of Crown counsel and counsel for one of the accused. The trial judge refused the jury’s request. The Quebec Court of Appeal held that the trial judge erred in doing so. Proulx J.A. wrote at p. 95: The jury, having specifically asked for only one of the two summations of defence counsel, showed their preoccupation on certain aspects of the case and their need for assistance. Perhaps it was a device to refresh their memory, to clarify confusion or to better understand some of the issues. The trial judge’s role, at this stage, was to give assistance to the jury in order to facilitate its task in the determination of the proper verdict. Counsel’s addresses are an important part in the trial process and, with due respect, I see no reason why such a request from a jury should not be granted unless it is not feasible. Judges themselves, sitting without a jury, do often request counsel to repeat some parts of their summation or even order that counsel’s summations be transcribed though they take notes during the hearing of the summations; why then would the summation not be made available to a jury who demands it? He therefore concluded, “that as a matter of principle, a counsel’s submission may be read back at the request of the jury, within the limits of reasonableness and feasibility.” Proulx J.A. recognized that the jury had asked only to listen to the Crown’s closing and the closing of one of the defence counsel but not the other. He saw nothing necessarily wrong with complying with the jury’s request: In such a situation … the trial judge could have granted that request or, depending on the circumstances of the case, ordered that the other defence counsel’s summation also be read back to the jury.14 In short complying with the jury’s request for a copy of one side’s closing is not an error of law. [86] Fourth, however, giving the jury one side’s closing, in a particular case, may be so unfair or may create a sufficient appearance of unfairness that it results in a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code. The important point is that whether there is a miscarriage of justice is a fact-driven inquiry. The court must examine the considerations relevant to each case to decide whether a miscarriage has occurred. [87] Did giving the jury a transcript of the Crown’s closing cause a miscarriage of justice in this case? I do not think that giving the jury the transcript caused any unfairness. The trial judge could have simply reviewed the closing with the jury instead of giving them a transcript of it.15 But the jury asked specifically for the transcript and both counsel agreed that they should have it. The appellant did not put forward, either at trial or on appeal, any cogent reason for refusing their request. [88] The important question, therefore, is whether failing to give the jury a transcript of the defence’s closing as well, caused a miscarriage of justice. As I said earlier it might have been preferable had the trial judge given the jury a copy of the defence’s address. In my view, however, his failure to do so was not so unfair that it caused a miscarriage of justice. I rely on the following seven considerations in support of my view. [89] First, giving the jury the Crown’s closing responded directly and completely to the jury’s request. I do not think the court should readily assume that the jury would read material they did not ask to see. In a judge alone trial, trial judges are entitled to review their notes or obtain the transcript of one side’s closing only.16 When the jury is the trier of fact, jurors should be able to obtain the same assistance. [90] Second, although closing addresses are undeniably an important part of a jury trial,17 they are not evidence. Yet, even when the jury asks for a review of evidence, the kind of balance argued for by the appellant is not ordinarily required. Take a case, for example, in which the Crown and the defence both called a ballistics expert. If the jury asks for a review of certain points in the evidence in-chief of the Crown’s expert, the trial judge ordinarily is required to review the cross- examination on those points to ensure that the jury is given all the evidence of the witness on the points they wanted reviewed or clarified. But the trial judge is not ordinarily required to review the competing evidence of the defence expert.18 [91] Third, although important, closing addresses of counsel cannot be equated with instructions from the trial judge. Because the trial judge occupies a special position of authority in a jury trial, appellate courts insist that the charge to the jury be fairly balanced and that any review of a part of the charge requested by a jury be similarly balanced. The trial judge’s position of authority and neutrality goes a long way to explain Estey J.’s observation in Cathro, relied on by Abella J.A. Moreover, in Cathro, Estey J. had two concerns not present in the case before us: in Cathro, the instructions on the law, which the trial judge gave the jury, were both incomplete and inaccurate, and the contentions of the Crown and evidence supporting those contentions, which were given to the jury, were not even asked for by them. Abella J.A. states that Estey J.’s comments may be applied to this case. I disagree. We expect a judge’s charge to be correct, complete and balanced. We expect counsel’s closing address to be partisan and the jury would recognize it to be so. Indeed, the trial judge instructed the jury that “[i]f you do not agree with counsel’s comment on a fact, disregard that comment. Counsel’s belief about the facts is irrelevant. If counsel has inadvertently given you his opinion, you must ignore that opinion.” [92] Fourth, the position of defence counsel at trial provides an important barometer of the extent of any prejudice. Here, defence counsel did not merely fail to object. He expressly agreed to giving the jury only the Crown’s closing. The appellant does not suggest that her trial counsel was either incompetent or inexperienced. I recognize even the most experienced trial counsel may, in the heat of the moment, overlook something that in retrospect counsel should have raised at the time. In this case, however, defence counsel had overnight to reflect on his position, and still did not insist or even ask that the jury be given a copy of his closing. Of course, defence counsel’s failure to intervene at trial is not fatal on appeal. But a failure to intervene takes on greater significance when the point in issue is not a misdirection in law, or an inaccurate or incomplete review of the evidence. In the dynamics of this trial, defence counsel did not regard complying with the jury’s request as being unfair. Nor did the trial judge, who is both very experienced and highly regarded. [93] Fifth, this was a circumstantial case, which in large part turned on an assessment of the expert evidence. Thus a reliable verdict depended on the jury being able to appreciate fully the position of the Crown and the defence. The defence theory was simple: the appellant accidentally shot her husband during a struggle. In defence counsel’s lengthy closing he reviewed in great detail the evidence supporting this theory. The trial judge, too, summarized for the jury the main points for the defence, noting as well several weaknesses in the Crown’s case – the weak motive, the inconclusive footprint evidence, and the concession by the Crown’s experts concerning the defence theory. It seems to me we should assume that the jury understood the defence theory and the evidence in support of it. We do not know why the jury asked for a copy of the Crown’s closing, but likely they needed to refresh their memory on some aspect of the Crown’s position or they needed to clarify a point on which they were uncertain. They obviously needed no further assistance in appreciating the defence position. [94] Sixth, the Crown’s closing address was quite brief, occupying only 20 transcript pages. It was not inflammatory, nor indeed overly partisan, but instead was a straightforward review of some of the evidence supporting the Crown’s theory that the appellant intentionally shot her husband. Having the transcript of the Crown’s closing was not suddenly and immediately conclusive for the jury, who deliberated another four hours, including the evening they received it and the following morning, before reaching their verdict. [95] Seventh, insisting that the jury be given a copy of the defence’s closing address when they did not ask for it, is, in my view, an affront to their common sense. Time and again judges pronounce that the strength of our criminal justice system rests on the intelligence and common sense of the ordinary juror. For example, in R. v. Corbett,19 Dickson C.J.C., in discussing the jury’s use of an accused’s criminal record, wrote: In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law. [96] If we judges are going to pay more than lip service to these pronouncements, then it seems to me in a case like this we should trust that the jury knows what they are doing when they ask for one side’s closing, but not the other side’s. This is not a case in which the jury was misdirected on the law or given an inaccurate review of the evidence. Nor is this a case where the defence requested that their closing be placed before the jury. I do not understand how an otherwise error-free trial can become irretrievably tainted because the trial judge, in the exercise of his discretion, and with counsel’s consent, complied with the jury’s request for assistance. [97] I conclude therefore that neither the fairness nor the appearance of fairness of this trial was so compromised that a miscarriage of justice occurred. I would not give effect to this ground of appeal. CONCLUSION [98] I would dismiss the appellant’s appeal from her conviction for second degree murder. “John Laskin J.A.” _______________________________ 1 R. v. Yebes, [1987] 2 S.C.R. 168. 2[1994] 2 S.C.R. 9. 3 See R. v. Neilson and Stolar (1984), 16 C.C.C. (3d) 39 (Man. C.A.); and R. v. Legere (1994), 95 C.C.C. (3d) 139 (N.B.C.A.), in which Sergeant Kennedy was an expert witness. 4 See R. v. Jackson (1980), 57 C.C.C. (2d) 154 (Ont. C.A.); and R. v. Bihun, [1965] 4 C.C.C. 45 (Man. C.A.). 5 See R. v. Campbell (1978), 17 O.R. (2d) at 685-686 ( C.A.). 6 (1997), 35 O.R. (3d) 97 (C.A.) 7 supra, at p. 23. 8[1991] 1 S.C.R. 742. 9 See R. v. S. (W.D.), [1994] 3 S.C.R. 521 at 528-531. 10 [1956] S.C.R. 101. 11 [1998] 2 S.C.R. 109 at 125. 12 See R. v. Smith, Sauve and George (1975), 25 C.C.C. (2d) 270 (B.C.C.A.) and R. v. C.(R.A.) (1990), 57 C.C.C. (3d) 522 (B.C.C.A.). 13 (1991), 68 C.C.C. (3d) 81 (Que.C.A.); appeal on other grounds allowed in part [1995] 4 S.C.R. 201. 14 See also R. v. Hajian (1998), 124 C.C.C. (3d) 440 (Que. C.A.) and R. v. Tremblay, [1997] A.Q. No. 2905 (C.A.). 15 See R. v. A. (J.) (1996), 112 C.C.C. (3d) 528 (Ont. C.A.) where Labrosse J.A. observed that although the trial judge must assist the jury, the form of assistance is within the judge’s discretion. 16 See for example R. v. Corriveau (1985), 19 C.C.C. (3d) 238 (Ont. C.A.); and R. v. A. (J.), supra. 17 R. v. Rose, [1998] 3 S.C.R. 262, referred to by Abella J.A. in her reasons. 18 See R. v. Callaghan (1991), 9 C.R. (4th) 264 (Ont. C.A.); and R. v. Pelletier (1986), 29 C.C.C. (3d) 533 (B.C.C.A.).19 [1988] 1 S.C.R. 670 at 692.