R. v. Bernardo

R. v. Bernardo Collection Decisions of the Court of Appeal Date 2000-03-29 Docket numbers C29343 Judges Laskin, John Ivan; Moldaver, Michael James; MacPherson, James C. Subject Criminal Decision Content DATE: 20000329 DOCKET: C29343 COURT OF APPEAL FOR ONTARIO LASKIN, MOLDAVER and MacPHERSON JJ.A. BETWEEN: ) ) Gregory Brodsky, Q.C., HER MAJESTY THE QUEEN ) Paul Burstein, ) James Stribopoulos and Respondent ) Anthony Bryant ) for the appellant - and - ) ) James Ramsay, Shawn Porter PAUL KENNETH BERNARDO ) and Michal Fairburn ) for the respondent Appellant ) ) ) ) Heard: March 27, 2000 ) On appeal from conviction by P. LeSage A.C.J.S.C., with a jury, dated September 1, 1995. BY THE COURT: [1] After a trial before Associate Chief Justice LeSage and a jury, the appellant Paul Bernardo was found guilty of the first degree murders of Leslie Mahaffy and Kristen French. He was also found guilty of having kidnapped, unlawfully confined and sexually assaulted each of the two young girls, and of having offered an indignity to the dead body of Leslie Mahaffy. [2] The appellant appeals his convictions on all nine counts but asks for a new trial only on the two counts of first degree murder. He admits, as he did at trial, that he kidnapped these two teenage girls, and then confined them in his house while he brutally sexually assaulted and humiliated them. He maintains, however, that he did not murder them, that Karla Homolka alone was the murderer. He says that he is guilty only of manslaughter. He argues that he was deprived of a fair trial on the only real issue in this case: whether the Crown had proved beyond a reasonable doubt that he murdered or was a party to the murders of Leslie Mahaffy and Kristen French. [3] The appellant submits that he was deprived of a fair trial because of errors made by the trial judge in his rulings on evidence, in his charge to the jury, and in the jury selection process. The appellant’s grounds of appeal may be summarized as follows: (a) Alleged Evidentiary Errors: 1. The trial judge erred in admitting as similar fact evidence the appellant’s use of a ligature during sexual intercourse with J.G. 2. The trial judge erred in permitting the Crown to lead expert evidence on the “battered woman syndrome” and he compounded this error by failing to instruct the jury adequately on the limited use of this evidence. 3. The trial judge failed to tell the jury that the Crown had improperly cross-examined the appellant on s. 13 of the Charter. (b) Alleged Errors in the Charge to the Jury: 1. The trial judge misdirected the jury on the burden of proof on the pivotal issue of who killed the girls. 2. The trial judge erred in leaving the Crown’s secondary theory of liability with the jury. 3. The trial judge failed to give a proper W.(D.) instruction. 4. The trial judge failed to adequately warn the jury about the improper use of Homolka’s plea agreement. (c) Alleged Error in the Jury Section Process: The trial judge did not follow the procedure for challenges for cause and peremptory challenges, prescribed in s. 635(1) of the Criminal Code. [4] We found no merit in any of these grounds of appeal and therefore we did not call on the Crown. Here are our brief reasons on each of the appellant’s submissions. (a) The Evidentiary Issues 1. Similar fact evidence of J.G. [5] The trial judge permitted the Crown to call, as similar fact evidence, the evidence of J.G., one of the appellant’s former girlfriends. J.G. began dating the appellant in 1984 when she was 16 and he was 20 years old. She testified about an incident in the summer of 1986 when they were in the appellant’s parked car. She said the appellant demanded that she go into the back seat, get on her knees and arch her back. After she did so, the appellant vaginally and anally raped her. She testified that while this took place the appellant put a twine around her neck and pulled on it. Although the appellant did not try to choke her with the twine, J.G. said that it felt uncomfortable. In his evidence, the appellant insisted that the entire incident was consensual and that he stopped using the twine when J.G. told him that it hurt. [6] The trial judge permitted the Crown to lead this evidence to support Homolka’s testimony about the appellant’s use of a ligature on both Leslie Mahaffy and Kristen French. He concluded that the probative value of this evidence outweighed its prejudicial effect. [7] In this court the appellant submitted that the evidence was highly prejudicial and because it was not probative of who killed the two girls it should not have been admitted. [8] In determining the admissibility of similar fact evidence, a trial judge must balance the probative value of the evidence against its prejudicial effect. For that reason appellate courts show “a high degree of deference” to the trial judge’s determination. See R. v. B. (L.); R. v. G. (M.A.) (1997), 116 C.C.C. (3d) 481 at 505 (Ont. C.A.). In the light of that deference we are not persuaded that the trial judge erred in his ruling. [9] The evidence of J.G. had some probative value, admittedly limited, in that it supported the evidence of Homolka that the appellant used a ligature on Kristen French during his last sexual assault of her before he killed her. Against its probative value the prejudicial effect of J.G.’s evidence was minimal at best. Indeed, looked at from a different perspective, the evidence supported the appellant’s defence because he did not use the ligature to kill J.G. [10] In disposing of this ground of appeal, two other considerations are important. First, even if the appellant’s conduct towards J.G. was not consensual, that conduct was far less serious than that with which he was charged, much of which he admitted at trial. Thus, the evidence of J.G. would have had little effect on the jury’s deliberations. As the Crown wrote in its factum, it was a minor feature of an overwhelming case against the appellant. [11] Second, the trial judge accurately instructed the jury on the limited use of J.G.’s evidence, even telling the jury to disregard whether the incident was consensual or not consensual. [12] For these reasons we find no merit in this ground of appeal. 2. Expert evidence on the battered woman syndrome [13] The trial judge ruled that the Crown could lead the evidence of two expert witnesses, Dr. Jaffe and Dr. Hatcher, to explain the battered woman syndrome and the associated post-traumatic stress disorder. The appellant submits that the trial judge erred in permitting this evidence to be led and then compounded his error by failing to properly instruct the jury on how they could use the evidence. We disagree. [14] The trial judge’s ruling should be put in context. The Crown brought a broad ranging application to admit psychiatric evidence concerning its main witness, Karla Homolka. The trial judge held that most of the expert evidence the Crown sought to lead was inadmissible. He did, however, permit the Crown to call evidence about the battered woman syndrome and post-traumatic stress disorder. In the trial judge’s view, this evidence would help the jury assess Homolka’s evidence and thus ultimately help them decide who killed Leslie Mahaffy and Kristen French. [15] In ruling the evidence admissible, the trial judge applied the criteria in R. v. Mohan (1994), 89 C.C.C. (3d) 402 (S.C.C.). He found the evidence relevant, necessary in the sense that the evidence went beyond the ordinary experiences of jurors, and not precluded by any exclusionary rule. The defence conceded that the two experts were properly qualified to give this evidence. [16] Having ruled that the evidence was admissible, the trial judge strictly limited the scope of the experts’ testimony. He precluded them from expressing an opinion on whether Homolka did suffer from the battered woman syndrome or from post-traumatic stress disorder. It was for the jury to decide whether this syndrome was valid, and even if it was, whether Homolka suffered from it, and if so, what effect it had on her evidence. We note that both experts acknowledged that some of Homolka’s conduct suggested that she was malingering. [17] The appellant submits, however, that the trial judge should not have admitted this evidence. He argues that it amounted to oath-helping, and that no expert testimony was needed to explain Homolka’s conduct because she herself testified why she acted as she did. We do not accept this submission. The battered woman syndrome is a recognized psychiatric condition and expert evidence explaining this syndrome has been admitted by many courts since the decision of the Supreme Court of Canada in R. v. Lavalee (1990), 55 C.C.C. (3d) 97. The expert evidence in this case would have helped the jury to determine whether there was an explanation for what might be regarded by the average person as conduct by Homolka that was inconsistent with that of a truthful witness. The syndrome explained how some people react to certain experiences. The jury would have had the benefit of this explanation, among a host of other relevant considerations, in assessing Homolka’s credibility. [18] This expert evidence did not amount to oath-helping and indeed, as we have said, the trial judge precluded the experts from giving an opinion on whether Homolka suffered from this syndrome. We recognize that the effect of this expert evidence, if the jury accepted the validity of the syndrome and that Homolka suffered from it, might bolster her credibility. As the Supreme Court of Canada pointed out in R. v. Marquard (1993), 85 C.C.C. (3d) 193 at 229, that does not make the evidence any less admissible. The evidence was relevant not because it amounted to an opinion on whether Homolka was telling the truth but because it might explain her behaviour. [19] Having admitted the evidence, the trial judge properly instructed the jury on its use, both when the evidence was first called and later in his charge. We find no error in these instructions. Therefore, we do not give effect to this ground of appeal. 3. Improper cross-examination of the appellant [20] The appellant testified about an incident in 1991, when he had released a hitchhiker after kidnapping and sexually assaulting her. In cross-examination the Crown suggested that the appellant’s evidence was false and then asked the appellant whether he knew that his evidence about this incident could not be used against him at a subsequent trial because of s. 13 of the Charter. [21] In his factum the appellant submits that the Crown’s cross- examination was improper and prejudicial. He argues that the trial judge should have instructed the jury that they could not infer the appellant’s evidence was influenced by s. 13 of the Charter. Defence counsel at trial did not request this instruction. [22] Even if the Crown should not have questioned the appellant about s. 13, his doing so caused no prejudice. The incident with the hitchhiker was inconsequential in this trial. Moreover, in the brief exchange between Crown counsel and the appellant on the incident, the appellant said he did not even know about s. 13 of the Charter and the trial judge said for the benefit of the appellant and the jury, “It doesn’t matter.” This ground of appeal fails. (b) Charge to the Jury 1. Misdirection on the burden of proof on the pivotal issue [23] It was the appellant’s position at trial that he did not kill Leslie Mahaffy or Kristen French. To the contrary, he claimed that both girls died while in the sole custody of Homolka. Whether the killings were intentional or the product of misadventure, he could not say. Regardless, it was never his intention to kill the girls and he had no reason to believe that Homolka would do so. He did, however, concede that in the circumstances, the essential elements of unlawful act manslaughter had been made out in relation to each of the girls, and defence counsel invited the jury to return verdicts of manslaughter on both counts of first degree murder. [24] The Crown, on the other hand, took the position that the appellant killed both girls and that he was guilty of first degree murder as a principal. In the alternative, the Crown maintained that if Homolka killed the girls, she was guilty of first degree murder as a principal and the appellant was guilty as a party to her offences pursuant to ss. 21(1)(b) and (c) of the Criminal Code. [25] Bearing in mind the position of the parties, in order to determine the basis of the appellant’s liability, the jury was initially required to determine whether the appellant was a principal or party to the killings. If the former, first degree murder verdicts were inevitable. If the latter, verdicts of second degree murder and manslaughter were possibilities. [26] In view of this, the appellant submits that the jury should have been told that if they believed or had a reasonable doubt that he was not the principal, then, depending upon their findings, the jury could acquit him of first degree murder and find him guilty of the lesser and included offences of second degree murder or manslaughter. As it is, the appellant submits that the trial judge left the jury with the erroneous impression that in order to find him not guilty of first degree murder, they had to be satisfied beyond a reasonable doubt that Homolka was the principal. [27] In our view, there is no merit in this submission. Although it certainly would have been open to the trial judge to instruct the jury along the lines suggested by the appellant, he was not obliged to follow that course. The trial judge chose a different route to convey precisely the same message. In essence, the trial judge told the jury that if they were not satisfied beyond a reasonable doubt that the appellant killed the girls, he could only be convicted of first degree murder if the jury was satisfied beyond a reasonable doubt that Homolka killed the girls, that the killings amounted to first degree murder, and that the appellant did what was necessary to make him a party to first degree murder under ss. 21(1)(b) and (c) of the Code. [28] The trial judge then explained how the appellant could be found guilty as a party to second degree murder. He told the jury that in order to find the appellant guilty as a party to second degree murder, they would have to be satisfied beyond a reasonable doubt that Homolka killed the girls, that the killings were intentional, and that the appellant did what was necessary to make him a party to second degree murder under ss. 21(1)(b) and (c) or s. 21(2) of the Code. [29] Finally, the trial judge told the jury that if they were not satisfied beyond a reasonable doubt that the appellant was guilty as a party to second degree murder, he could nonetheless be found guilty of manslaughter. In our view, the trial judge’s instructions on manslaughter, while correct, were really of no moment in view of the appellant’s concession that he was guilty of manslaughter. [30] The instructions to which we have been referring are found in a segment of the charge in which the trial judge, after taking mid-charge objections, revisited his earlier legal instructions and replaced them with a clear and comprehensive road map covering all the possible bases on which the appellant could be found liable. Notably, in oral argument, Mr. Burstein, on behalf of the appellant, conceded that he could find no fault with these instructions. In support of his submission that the trial judge shifted the burden of proof on the pivotal issue of who killed the girls, he referred to an earlier passage in the charge to illustrate the alleged error: If the situation occurred as the other scenario, as the accused has expressed, or if you are left on a reasonable doubt in that issue, then you would consider whether the accused is guilty of any offence. You would consider whether or not the accused, if he tied her, according to the testimony that he gave, to the hope chest, which would be an unlawful act of confinement and assault, whether or not there would be a reasonable forseeability that leaving Kristen French in that position would cause, could cause bodily harm that is neither transitory or trivial. If that were the case you are satisfied of that beyond a reasonable doubt, he would be guilty of manslaughter. [31] Mr. Burstein submits that the last sentence in this passage supports his position that the jury was erroneously led to believe that they could only find the appellant guilty of manslaughter if they were satisfied beyond a reasonable doubt that Homolka killed Kristen French. [32] In our view, far from supporting the appellant’s position, the passage in question belies it. In effect, the trial judge told the jury that if they believed or had a reasonable doubt that the appellant did not kill Kristen French, they could find him guilty of manslaughter only if they were satisfied, beyond a reasonable doubt, that the essential elements of unlawful act manslaughter had been made out against him. That instruction fully complies with the approach endorsed by the appellant. [33] In sum, we are satisfied that the jury was properly instructed on the burden of proof on the pivotal issue and we would not give effect to this ground of appeal. 2. Was there an evidentiary basis for the Crown’s secondary theory of liability? [34] The appellant argues, for the first time on appeal, that there was no evidentiary basis for the Crown’s secondary theory of liability. Accordingly, he submits that it was improper for Crown counsel to invite the jury to act on a theory that contradicted the evidence of its main witness Homolka and that it was also wrong for the trial judge to leave the secondary theory of liability with the jury. [35] We see no merit in these submissions. Leaving aside the direct evidence of Homolka and Bernardo, there was ample circumstantial evidence from which the jury could infer that the two were acting in concert when the girls were killed, either as co-principals or as a party to the other’s offence. Indeed, in one of his objections to the charge, defence counsel recognized that it was open to the jury to draw this very inference: DEFENCE COUNSEL: What if the jury finds that they both did one or both of the killings? In other words, that it wasn’t just the accused who was strangling. It was maybe Miss Homolka was holding the legs or vice versa of Leslie Mahaffy. There isn’t any direct evidence of that, but let us assume for the moment that they infer from all the circumstances that they’re two equal partners who are participating in the causing of the death and so forth. 3. The W. (D.) instruction [36] After reminding the jury that the onus of proof rested on the Crown throughout, the trial judge instructed the jury in accordance with the principles enunciated in R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) as follows: The onus is on the Crown to establish its case beyond a reasonable doubt. If you accept the evidence of the accused, then obviously you would not find him guilty of first degree murder. … Even if you don’t accept the evidence of the accused, and there is no onus on him to establish anything, even if his evidence simply raises a doubt in your mind on the issues that the Crown must establish, the essential elements of the crime, then he is entitled to a benefit of that doubt. The third stage of it is this, that even if you not only did not accept the evidence of the accused, his evidence didn’t raise a reasonable doubt in your mind, that doesn’t answer the questions you have to answer. You must look at the evidence you did accept, and ask yourself: On the evidence I do accept, am I satisfied beyond a reasonable doubt that the Crown has proved the essential elements of the crime? It’s a way of expressing the fact that there’s no onus on an accused to prove anything. The onus is on the Crown. [37] The appellant submits that segments one and two of this instruction were wrong because the jury was led to believe that they should look at the appellant’s evidence in isolation in deciding whether it was believable or raised a reasonable doubt. [38] We disagree. The instructions given by the trial judge were precisely those suggested by Cory J. in W. (D.). While recent authorities have refined those instructions to make it clearer that the jury should consider the whole of the evidence that favours the accused in deciding whether his or her testimony is believable or raises a reasonable doubt, the trial judge can hardly be faulted for using the very language endorsed by the Supreme Court of Canada. Moreover, when the instructions are considered as a whole, the jury would not have been misled into thinking that they could only look at the appellant’s evidence in isolation in deciding whether it raised a reasonable doubt. Accordingly, we would not give effect to this ground of appeal. 4. Failure to adequately warn the jury about the improper use of Homolka’s plea agreement [39] In examination-in-chief, Crown counsel reviewed with Homolka the details of the plea agreement negotiated on her behalf. On consent, the agreement was made an exhibit. [40] Several of the clauses in the agreement required that Homolka provide a full and truthful account of her involvement in the deaths of Leslie Mahaffy, Kristen French and Tammy Homolka, failing which she could be prosecuted for various criminal offences. In addition, clause (A)8 of the agreement read as follows: If the authorities learn through any means that your client has caused the death of any person, in the sense of her stopping life, any proposed resolution will be terminated at the suit of the Crown, regardless of the state the process is at. [41] In his charge, the trial judge referred to the agreement as perfectly valid and legitimate but he warned the jury that it could not be used to bolster Homolka’s credibility: The plea agreement had a number of components to it including that, that part of which was that Miss Homolka would testify at trial. If you look at that plea agreement it says in a number of places that she will be truthful, that she will tell the truth, that she will testify and be truthful, et cetera. You can’t use that agreement to therefore say therefore she’s, she’s credible because she agreed to be credible. That, that’s not logical. Disregard those words in assessing her credibility. You’ll decide and assess her credibility on the evidence that she gave here and your assessment of her, and how that fits in to the whole scenario of events that you have as you find them to be. [42] The appellant takes no issue with this instruction. He maintains, however, that the trial judge should have gone further and told the jury that they could not use clause (A)8 or the other clauses in the agreement that addressed sanctions for not telling the truth “as a signal of the Crown’s apparent satisfaction that Homolka had not caused the death of any person, in the sense of her stopping life.” [43] We disagree with this submission. Although Crown counsel presented Homolka as a truthful witness in support of its primary theory that Bernardo strangled both girls, the Crown’s secondary theory was premised on a finding that Homolka was the person who “stopped the life” of the two girls. This can hardly be characterized as improper vouching on the Crown’s part. [44] Moreover, in his closing address, Crown counsel sought to distance himself from the plea agreement. He went so far as to tell the jury that on her own evidence, Homolka was guilty of first degree murder. He then continued: CROWN COUNSEL: You can see from the evidence the police had little more than Homolka on which to base murder charges against the accused at that time. There were no videotapes then. They were hidden. Had the videotapes been available to the authorities then, don’t you think that Homolka would be in that box with him today? This situation has changed drastically since and in its course. [45] As this passage illustrates, far from putting a personal stamp of approval on the contents of clause (A) 8 of the agreement, Crown counsel resiled from it. Accordingly, we would not give effect to this ground of appeal. (c) Jury Selection Issue [46] The appellant contends that the trial judge misinterpreted and misapplied s. 635(1) of the Criminal Code during the jury selection process. Section 635(1) reads: 635.(1) The accused shall be called on before the prosecutor is called on to declare whether the accused challenges the first juror, for cause or peremptorily, and thereafter the prosecutor and the accused shall be called on alternately, in respect of each of the remaining jurors, to first make such a declaration. [47] The appellant submits that the plain meaning of this section is that both parties must exhaust both challenges - for cause and peremptory - with alternating prospective jurors before the other side is called upon to make its declaration. Thus, in this case, once the trial judge had approved of the accused’s proposed questions for a challenge for cause of prospective jurors, the appellant’s position is that the Crown should have been required to make its decision, with respect to alternating prospective jurors, on whether to challenge peremptorily before the challenge for cause took place. [48] The trial judge stated that the accused’s interpretation of s. 635(1) of the Code was “not illogical nor without merit”. However, he indicated that this interpretation was contrary to the practice of other trial judges in Ontario, who accepted and applied the interpretation of s. 635(1) articulated by Adams J. in R. v. Aguilera (1993), 87 C.C.C. (3d) 474 (Ont. Gen. Div.). He also pointed out that he was not aware of any court elsewhere in Canada which had interpreted s. 635(1) in the fashion suggested by the accused. Thus, the trial judge concluded: The challenge for cause will follow the same procedure as has been followed in this province for many years. The Crown and defence will be asked to use their peremptory challenges after each prospective juror is challenged for cause. [49] We agree with the trial judge’s interpretation of s. 635(1) for the following reasons. [50] First, the wording of s. 635(1) supports the trial judge’s interpretation. Although the appellant’s interpretation is not without merit, the use of the word “or” between the words “for cause” and “peremptorily” coupled with the words “a declaration” [our emphasis] at the end of the provision suggest that the challenge for cause procedure should proceed first and continue until it is completed for each prospective juror before either party is required to decide whether to exercise a peremptory challenge. We also suggest that this interpretation is supported, admittedly in a minor way, by the fact that the words “for cause” precede the word “peremptorily” in s. 635(1). [51] Second, there is a fundamental difference between a challenge for cause and a peremptory challenge. The former relates to a process, initiated by one of the parties, to obtain an impartial jury, i.e. a jury composed of persons who are qualified to be jurors. The latter relates entirely to the discretion of the parties. A challenge for cause is designed to remove from the jury panel those individuals who, for this trial, should not be permitted to serve on the jury. They are people who the parties and the court would not regard as qualified to serve. As expressed by McLachlin J. in R. v. Williams (1998), 124 C.C.C. (3d) 481 at 488 (S.C.C.): The prosecution and the defence are entitled to challenge potential jurors for cause on the ground that “a juror is not indifferent between the Queen and the accused”. Lack of “indifference” may be translated as “partiality”, the term used by the Courts below. “Lack of indifference” or “partiality”, in turn, refer to the possibility that a juror’s knowledge or beliefs may affect the way he or she discharges the jury function in a way that is improper or unfair to the accused. A juror who is partial or “not indifferent” is a juror who is inclined to a certain party or a certain conclusion. [52] A peremptory challenge, on the other hand, is exercised on an entirely different basis. The result of a peremptory challenge is that a prospective juror who the court and one party might regard as impartial and, therefore, well-suited to serve on the jury will in fact not serve because of the other party’s exercise of its discretion. [53] In our view, given the crucial difference between the two categories of challenge, it is desirable to deal with the challenge for cause first (to remove ‘partial’ prospective jurors) before proceeding to the peremptory challenge (where impartial jurors might be excluded through the exercise of one party’s discretion). [54] Third, Mr. Bryant commenced his submission on this issue by stating that a fundamental goal of the rules of the jury selection process is that they apply equally to both sides. We agree. He further submitted that in a case where the accused was permitted to challenge for cause and the Crown did not seek to challenge for cause, the Crown would receive an unfair advantage because it would have additional information from the accused’s challenge for cause which it could use in deciding whether to make a peremptory challenge. [55] We agree with Mr. Bryant’s factual statement but not with the conclusion he seeks to draw from it. It is true that the Crown will possess more information about the prospective jurors before it makes its decision whether to exercise a peremptory challenge. However, so will the accused. Indeed, the accused will possess precisely the same additional information about prospective jurors. In short, the challenge for cause proceedings will provide both the Crown and the accused with identical additional information, which they can use as they turn to the peremptory challenge component of the jury selection process. [56] Fourth, counsel on the appeal was unable to cite any reported case in Canada that has adopted the appellant’s suggested interpretation of s. 635(1). It seems clear that the long-standing practice of Canadian trial courts is consistent with the manner in which the trial judge in this case conducted the jury selection process. [57] For these reasons, we are satisfied that the trial judge correctly interpreted s. 635(1) of the Criminal Code. Conclusion [58] The nature of the crimes and evidence probably made this one of the most difficult jury trials in Canadian legal history. The nature of the evidence made this a wrenching and draining experience for counsel, court staff, the trial judge and jurors and, especially, the families of the two young victims. [59] In our view, the trial judge presided over this difficult trial with great skill and fairness. We are convinced that the appellant received a fair trial. [60] The appeal is dismissed. “J.I. Laskin J.A.” “M.J. Moldaver J.A.” “J. MacPherson J.A.” Released: March 29, 2000