



COURT OF APPEAL FOR BRITISH
COLUMBIA




Citation:



R. v. James,









2013 BCCA 11




Date: 20130111

Docket:
CA039510

Between:

Regina

Respondent

And

Jean Ann James

Appellant

RESTRICTION
ON PUBLICATION: An order has been made under s. 486.5 of the
Criminal
Code
directing that any information that could identify a justice system
participant involved in these proceedings shall not be published, broadcast, or
transmitted in any manner.




Before:



The Honourable Chief Justice Finch





The Honourable Mr. Justice Lowry





The Honourable Madam Justice D. Smith




On appeal from: Supreme
Court of British Columbia, November 4, 2011
(
R. v. James
, Vancouver Registry 24796)




Counsel for the Appellant:



R. Hira, Q.C. &

S. Conroy





Counsel for the Respondent:



J. Gordon, Q.C. &

J. Horneland





Place and Date of Hearing:



Vancouver, British
  Columbia

November 21, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 11, 2013









Written Reasons by:





The Honourable Chief Justice Finch





Concurred in by:





The Honourable Mr. Justice Lowry

The Honourable Madam Justice D. Smith




Reasons for Judgment of the Honourable
Chief Justice Finch:

I.

[1]

The appellant appeals her conviction on 4 November 2011, on one count of
first degree murder for the killing of Gladys Wakabayashi on 24 June 1992. 
Ms. Wakabayashis murder was an unsolved crime in Vancouver for many
years.  In 2007, a renewed investigation was undertaken, in which the appellant
was the target of an undercover operation.  On 27 November 2008, the appellant
confessed to murdering Ms. Wakabayashi to an undercover police officer posing
as the boss of a fictitious crime organization, in which the appellant had been
induced to become involved.

[2]

The confession was essentially the whole of the Crowns case at trial,
and its reliability was a critical issue.  The defence attacked the confession
as unreliable, asserting that none of the usual safeguards to ensure
reliability were present.  In particular, the defence pointed to the absence of
any holdback evidence, that is evidence concerning the crime that had not
been published, and which could be known only to the killer; and to the absence
of any corroborating physical evidence linking the appellant to the crime scene
that was consistent with the confession.

[3]

The appellant did not testify at trial.

[4]

On appeal from conviction the appellant raises two grounds.  First, she
says the trial judge erred in admitting the opinions of police officers
concerning a partial shoe print found at the scene, and in failing to warn the
jury that the opinions should be given no weight.  Secondly, the appellant
contends that the trial judge failed to give the jury a specific instruction
warning them against propensity reasoning based on highly prejudicial
statements showing evidence of bad character made by the appellant during the
course of the undercover operation.

[5]

The appellant says that these errors, either singly or in combination,
could have influenced the jury to regard the confession as reliable, and she
seeks to have the conviction quashed and a new trial ordered.

[6]

The Crown contends that the learned trial judge did not err in either of
the ways alleged.  Alternatively, the Crown relies on the curative proviso in
s. 686(1)(b)(iii) of the
Criminal Code
.

[7]

For the reasons that follow I would dismiss the appeal.

II. 
Background

[8]

In 1992 the appellant was fifty-three years of age, married and the
mother of a young son.  She had been trained as a nurse in England, but worked
in Canada for many years in the airline industry.  Her husband was an air traffic
controller.  The family lived in Richmond.

[9]

The appellant and Ms. Wakabayashi met in 1985 as a result of their
children attending the same school.  The Jameses and the Wakabayashies became
friends.

[10]

By 1992 the appellant was a close friend of the deceased.  Ms.
Wakabayashi was the daughter of a wealthy Taiwanese family, and had married Shimji Wakabayashi,
a man of Japanese descent.  The Wakabayashies had separated a year or so
earlier, and their young daughter, Elisa, lived with the deceased.  They lived
in the family home on Selkirk Street in Vancouver.

[11]

On the morning of 24 June 1992, Ms. Wakabayashi drove Elisa to school
between 8:45 a.m. and 9:00 a.m.  A woman fitting Ms. Wakabayashis description
was seen in the garage of the Wakabayashi residence at about 9:00 a.m.

[12]

Ms. Wakabayashi was supposed to attend at her piano teachers home for a
lesson at 10:30 a.m. that morning, but she did not arrive.  The teacher called
her home and got a recorded message.

[13]

At about 4:40 in the afternoon Elisa phoned her father at work to say
she had been waiting for her mother to pick her up for two hours and was unable
to contact her.

[14]

Mr. Wakabayashi picked Elisa up from school and took her home, arriving
at about 5:30 p.m.  They found the back door of the house unlocked, which was
unusual.  Mr. Wakabayashi went to the master bedroom where he found the
deceased lying on her back in front of the dressing area, in a hallway between
a bathroom and the master bedroom, facing upwards with a big cut on her neck.


The Crime Scene and Police Investigation

[15]

Ms. Wakabayashi bled to death.  Her injuries included a number of deep
lacerations around a large part of her neck, apparently made by a sharp-bladed instrument. 
The neck injuries suggested the perpetrator had tried to decapitate her.  In
addition there were numerous cuts and wounds to her arms, legs, chest or upper
abdomen, as well as defensive injuries to her hands.

[16]

The nature and extent of the injuries suggested that the killer likely
acted in a violent rage.  Her body was covered in blood and there was blood on
the adjacent walls and on the carpet where she lay.

[17]

Two police officers, Detective B. Peters and Detective M. MacLennan
examined the scene.  Detective MacLennan, who was first to arrive, testified
that he found a partial shoe print apparently left in blood, in the bathroom
adjacent to the crime scene.  He said the print appeared to have been left by a
womans high-heeled shoe, with a pointed toe, and a honeycomb pattern on the
sole.

[18]

Detective Peters also testified that he saw a distinct shoe print in the
bathroom adjacent to the main bedroom which had a honeycomb pattern, and which
appeared to have been made by a high-heeled shoe.

[19]

Two weeks later, on 10 July 1992, Detective Peters executed a search
warrant at the appellants residence.  One object of the search was to find a
shoe that would match the shoe print in the bathroom.  No such shoe was ever
found.  The police also seized a carpet from the appellants vehicle for
testing, but nothing came of that.

[20]

A former RCMP officer, Jack Mellis, was qualified at trial to give
expert opinion evidence as a bloodstain pattern analyst, and crime scene
examiner.  He described the shoe print as a partial shoe impression.

[21]

The police found a knife in the kitchen sink of the residence.  The
forensic pathologist, Dr. Ferris, wrote a report in 1992 concluding that the
murder weapon was sturdy and heavy, with a long cutting edge.

[22]

The police were unable to match fingerprints from the crime scene to any
potential suspects.  No fingerprints from the crime scene could be matched to
the appellant.

[23]

The Wakabayashies had separated in April 1991, and planned to divorce in
July 1992.  In this period of time, the appellant began to doubt her husbands
fidelity.  She mentioned her concern to the custodian of her sons school.  She
borrowed the custodians car so she could follow her husband undetected.

[24]

In May or June 1992, the appellant made enquiries as to her husbands
whereabouts while he was out of town on business with a colleague, Gary
Harris.  Mr. Harris testified that Mr. James said he was having an affair with
a woman who lived in Hull, Québec.  He planned to visit her on the weekend
during the out-of-town trip.  He asked Mr. Harris to tell the appellant, if she
should telephone, that he had gone to Toronto.  The appellant did in fact
telephone, and Mr. Harris gave the message as requested by Mr. James.

[25]

On 15 June 1992, the appellant had a friend, Brendan Carver, who worked
as a subcontractor for a research company, obtain telephone records for her
husband for the weekend he was said to have been in Toronto (Mr. Carver is
referred to in some of the evidence as the gay guy).

[26]

Mr. Carver obtained a copy of the bill from the hotel where Mr. James
had been staying, which included a list of the telephone numbers of calls made
and received from Mr. James hotel room.  The Wakabayashies home phone number
appeared twice on Mr. James hotel bill.

[27]

Detective MacLennan subsequently made further enquiries and obtained a
copy of Mr. James telephone records from Transport Canada for the period 25 May
to 14 June 1992.  These showed that Mr. James had been charged for
six calls to the Wakabayashi home between 26 May and 14 June 1992, ranging in
duration from eight to 42 minutes.

[28]

After the appellant learned of the two calls on the hotel bill found by
Mr. Carver, she tried to find out who Mr. James had spoken to at the
Wakabayashi residence.  Mr. Wakabayashi testified that before the appellant
could make this enquiry, Ms. Wakabayashi requested that, if the appellant
asked, he tell her that he had spoken to Mr. James.  Mr. Wakabayashi agreed,
and when the appellant did in fact ask Mr. Wakabayashi on 22 June 1992, if he
had spoken to her husband, he told her he had.

[29]

After searching the appellants home as noted above, and after
conducting surveillance on the appellant for some time, the police arrested and
questioned her in July 1992.

[30]

The police released details of the crime to various media, and reports
were made in both the press and on the radio disclosing details surrounding
Ms. Wakabayashis death, the nature of her injuries, the likelihood that
the killer was known to the deceased because of the unlocked back door, and
that the deceased had a secret lover who was a married man.  One radio broadcast
quoted a police officer as stating that the murder weapon was a knife.

[31]

No further witnesses or evidence were located and in October 1992 the
police concluded their investigation without sufficient information to
recommend the laying of charges against any person.


The Undercover Operation

[32]

In 2007 the Integrated Unsolved Homicide Unit reviewed the case and
consideration was given to an undercover operation to try to determine the
nature of the appellants involvement, if any, in Ms. Wakabayashis death.

[33]

The police conducted surveillance on the appellant to discover her
habits and interests.  Various scenarios were designed by the police with a
view to inducing the appellant to participate in a fictitious criminal
organization.  The undercover operation commenced in December 2007, and in
January of 2008 the appellant was introduced to Detective A.  The two became
friends and by April 2008 the appellant began helping Detective A in the
business of the crime organization.  Undercover police officers testified as to
the appellants participation in various criminal activities, including money
laundering, negotiating for fraudulent credit cards, transporting vehicles, and
a kidnapping.  In the course of these events the appellant made a number of statements
to the undercover officers indicating her willingness to injure, kill, and
engage in various forms of violence and torture.

[34]

The undercover plan was to encourage the appellant to disclose that
there were no limitations on what she was prepared to do, or that in the
language of the operatives, she was an A to Z person.  If the undercover
operatives were satisfied that she was such a person, they would introduce her
to the boss of the organization, Mr. Big, who would have to satisfy himself
that she was suitable for acceptance into the organization.  The role of Mr.
Big was played by Sergeant B.

[35]

The incentives for the appellant to engage in this criminal conduct were
financial, as well as the promise of opportunities for her son in an acting
career, and the security of her new friends, the undercover officers, who
supported her admission to the criminal organization.  The interview with Mr.
Big took place at a hotel in Montréal on 27 November 2008.  The officer who
designed the undercover operation, RCMP Corporal C, testified as to the
safeguards which may be used to avoid obtaining a false confession.  Those
safeguards include:  the mantra, or a repetitive theme of trust, honesty and
loyalty impressed upon members of the criminal organization; the existence of
corroborating physical evidence; the use of holdback evidence, that is,
details known to the police, and which could not be known by anyone other than
the perpetrator; and the electronic recording of scenarios either with video,
or audio, or both.

[36]

In this case there was no apparent physical evidence to corroborate the
confession, and no holdback evidence, as a result of the media coverage in
1992.  In this case the police relied on the mantra as a safeguard, and on
the video recording of the appellants confession to Sergeant B, as well as the
audio recording of some of her statements in the various scenarios used to
entice her into the criminal enterprise.

[37]

Corporal C agreed in his testimony that the disclosure of holdback
evidence by the target was the best reliability safeguard.

[38]

The appellants interview with Sergeant B took about one hour and
40 minutes.  Sergeant B produced one of the newspaper articles from 1992
and indicated he had some information concerning the appellants involvement in
Ms. Wakabayashis death.

[39]

Over the course of the interview, the appellant told Sergeant B:

a)

that she found
out her husband was screwing around with the deceased;

b)

that as a result
she was furious and killed Ms. Wakabayashi;

c)

she caught
Ms. Wakabayashi by checking her husbands telephone calls on a hotel bill;

d)

that Ms.
Wakabayashi laughed in her face, so she slit her throat;

e)

she made a few
other cuts on the deceased before she cut her throat;

f)

she
left the deceased lying in the house on Selkirk;

g)

she did not use
a knife, but rather a box cutter;

h)

she destroyed
the clothes she was wearing in an incinerator;

i)

she
had parked her car a few blocks from the Selkirk house and walked there by back
alleys;

j)

she
got rid of the box cutter shortly after the murder and later sold her car;

k)

she had
been to the Wakabayashi house on the weekend before because she had some wine
stored there;

l)

she
wore gloves and was very sneaky so that there was no DNA left at the scene,
including washing a coffee cup she used while having coffee with the deceased;

m)

she pretended to put a
necklace around the deceaseds neck while she was sitting on a stool, and cut
her throat at that time;

n)

she did not go
into the bathroom;

o)

she also
inflicted cuts on the deceaseds legs;

p)

the killing
occurred about 9:00 a.m. or 9:30 a.m.;

q)

no one saw her
leave the house;

r)

the
necklace was later stolen from the James home in 1996;

s)

the person
who obtained the telephone numbers called by her husband from the hotel was a
gay guy she knew;

t)

she
knew the deceased would bleed out quickly from the cut throat, as the wound had
cut through the deceaseds jugular vein;

u)

when she left,
the deceased was laying outside her closet, in a hallway between the ensuite
bathroom and master bedroom.

III. 
Counsels Submissions and the Charge

[40]

The conversation between the appellant and Sergeant B is characterized
differently by counsel for the appellant and counsel for the Crown.  The
appellants counsel contends that she changed her story a number of times
during the course of the interview, and that her statements are inconsistent
and unreliable.  The Crown contends that the appellants confession contains no
conflicts, was consistent both internally and with known facts, and that it was
open to the jury to believe that the confession was both truthful and reliable.

[41]

With respect to the shoe print evidence, counsel for the appellant at
trial said this:

Moving on to the shoe imprint and the cast-off
blood splatter in the master bathroom.  Youve heard evidence and seen
photographs depicting the blood drops in the bathroom, as well as a bloody
shoeprint that was found in the bathroom, and I believe Mr. Jack Mellis, who
was qualified as an expert in blood splatter, discussed those specific
observations as well.

Now, through cross-examination of Sergeant [D]
who was the lead investigator in this case, it was confirmed that the FBI had
done an analysis on the shoeprint and it was determined that one of the
possibilities was that it couldve been a cowboy boot.  That was what Sergeant [D]
had learned at one point.

But what is most significant about the shoe
imprint and the blood drops in the bathroom of the master bathroom  master
bedrooms bathroom is that at page 78  or 73, lines 80 to 82, is the
conversation where Mrs. James indicates to Mr. Big:

I didnt go ... in her bathroom, anything.

And this shows that Mrs. James
did not know that the real killer went into the bathroom.  Thats what it
shows.  And if Ms. James was, in fact, the real killer and she was  and if she
was focused on telling the truth to Mr. Big, then youd think she wouldve
admitted she went into the bathroom that day instead of clearly saying she
didnt go in the bathroom, especially if Mr. Big purportedly has the ability to
find everything out, to find the truth out, to get police documents, to get
information from the police through his sources in Vancouver.  Thats an
important consideration.

[42]

On the same issue, counsel for the Crown said:

But the police performed a pretty diligent
investigation, forensic investigation.  Some of you may have seen CSI.  Well,
they looked for fingerprints.  They looked to see if the footprint could be
matched.  They compared the footprint with Gladys Wakabayashis shoes, they
compared the footprints with Mrs. James shoes, but they couldnt come up with
a match.  But the killing of Gladys Wakabayashi happened on June 24
th
and it wasnt until, I think, July the 10
th
that the search of Mrs.
James residence was conducted and police looked for a match for the shoes.

But Mrs. James had
already said that she threw out the box cutter, she had been wearing gloves,
she disposed of her clothing.  Its quite likely also that if she had been
wearing the shoes that created the shoe impression at the entrance to the
bathroom  now, that didnt go in very far.  It was just the very entrance to
the bathroom that shoe impression was.  Maybe those shoes were thrown out, too,
before the search of her residence.  It would be compatible with the other
items that she said she threw out.

...

And further:

Now, one thing she says is she says she didnt go
into the bathroom.
Well, if you look at the photographs, youll find that
the shoe impression of the pointed toe and the high heel, which was a small
shoe like a womans shoe, you might find that that was hers
.  But if she
went all the way into the bathroom and she went up to the sink, youd surely
see far more bloody shoe impressions in the bathroom as well.  And if she
started to go in and then backed off and went back and decided to leave, then
its not really inconsistent with what she told the crime boss here.

[Emphasis added.]

[43]

In her charge to the jury, with respect to the shoe print evidence, the
learned trial judge said:

Detective Mellis concluded there was a struggle
between the attacker and the deceased in a confined space in the hall between
the two walk-in closets due to the pooling of blood and the blood stain
patterns observed.  He also opined that during the struggle there were castoff
blood drops into the bathroom and a person stepped into the bathroom leaving a
shoeprint in the blood stains.  The shoeprint was described as pointed and
showing the front of the shoe rather than the heel.

...

... The 1992 investigation, as
described in evidence by officers Peters, Strikwerda, MacLennan, and Pearcey
produced no fingerprints that could be matched to Ms. James.  The officers also
investigated the shoeprint found in the bathroom of the deceaseds residence
and found no matching shoe in the deceaseds residence or in Ms. James
residence.

[44]

In her summary of counsels submissions, the judge said:

The Defence says
there are a number of significant inconsistencies between the known facts and
what Ms. James told Sergeant [B].  She lied about her finances being rosy;
there was no incinerator at the Tyee School where Adam attended in 1992
contrary to Ms. James statement that she burned her clothes in an incinerator
at the school; there was a shoeprint and blood splatter in the bathroom of the
deceaseds residence, but Ms. James said she did not go into the bathroom; ...

[45]

The judge did not refer to or comment upon Crown counsels submission
that the jury might find that the shoe impression was left by the appellant.

[46]

Defence counsel did not object to nor comment upon the judges failure
to address Crown counsels submission on the shoe impression.

[47]

With respect to prejudicial evidence of the appellants bad character,
and the danger of propensity reasoning, it does not appear that either counsel
addressed any remarks to the jury on this subject.

[48]

In her charge to the jury, the judge said this:

You heard evidence that Ms. James participated in
what she was led to believe was criminal conduct orchestrated by the undercover
team during their investigation of Ms. James.  I will now explain how you may
and may not use this evidence.

You heard this evidence because it would have
been impossible for the Crowns case or the case for the Defence to be
presented in an understandable way without it.  The evidence simply would not
have made any sense.  You can use this evidence to put the events in context
and to help you understand what happened in this case.  You may also use the
evidence surrounding her involvement in the undercover operation and their
activities to decide whether or not you find the confession reliable.  You
cannot use it for any other purpose.

There is good reason for this.  Ordinarily in a
criminal trial the Crown cannot lead evidence of an accuseds prior wrongdoing
as evidence that the accused committed the crime with which she is charged. 
This is because judges and juries are not permitted to conclude that because an
accused has engaged in prior wrongdoing, she is the kind of person who could
have or would have committed this crime.  Judges and juries cannot use evidence
of wrongdoing as evidence of guilt in that way.  We must rely on evidence that
relates to the crime with which the accused has been charged.  We must not rely
on evidence that the accused committed some other crime or did something else
that was wrong to reason that because she did that, she must have committed
this crime.

More specifically, you must not engage in a chain
of reasoning that goes like this:  looked at alone or together, the evidence of
other wrongdoing, or bad acts, by the accused, apart from the bad acts alleged
in the indictment, shows that the accused is a bad woman, a person of bad
character, a person with a propensity to commit crime in general or a
particular sort of crime, and therefore it is more likely that she committed the
offence alleged against her in the indictment.  That chain of reasoning is
forbidden to you at law.

Despite this rule, I
permitted this kind of evidence to be presented in this trial only for the
purposes I just mentioned; to put the evidence in context and to help you
decide whether or not you find Ms. James confession to be reliable.  You must
not use this evidence for any other purposes.  You must not use this evidence
to punish Ms. James for past misconduct by finding her guilty of this charge.

[49]

Later on the judge said:

I wish to remind you again that you cannot use
the fact that the undercover operators induced Ms. James to participate in a
number of staged criminal activities as a base from which to infer that because
she was prepared to commit those illegal acts she must have committed the
offence charged.  You can only use the evidence of her involvement in the
undercover operator  with the undercover operators to assess the reliability
or truthfulness of what she said to Sergeant [B].

You should examine Ms. James overall
relationship with Sergeant [A] and Sergeant [E] and the manner in which they
engaged Ms. James in the various illegal ventures of the criminal organization,
the manner in which she participated in the activities of the criminal
organization,
and how she responded to questions, requests and instructions
in order to assess whether you find the statement she made to Sergeant [B]
about her involvement in the murder of Ms. Wakabayashi to be true and reliable.

[Emphasis added.]

[50]

At the conclusion of the charge, neither counsel objected to, nor raised
any question concerning, the judges instruction on the shoe print evidence, or
on her instructions against propensity reasoning based on evidence of bad
character.

IV. 
Issues and the Parties Positions on Appeal

[51]

First, the appellant says the judge erred in admitting opinion evidence
concerning the shoe print, and in failing to warn the jury that those opinions
should not be given any weight.

[52]

Second, the appellant says the judge erred in failing to give a specific
instruction to the jury against propensity reasoning from the highly
prejudicial statements made by the appellant during the course of the
undercover operation.

[53]

The Crown says the judge did not err in either regard, and that if there
was error, the provisions of the curative proviso in s. 686(1)(b)(iii) should
be applied.


The Shoe Print

[54]

The appellant emphasizes that physical evidence can be an important test
or safeguard for the reliability of an undercover confession.  Here, the
appellant says, the Crown attempted to use the shoe print evidence as a link
between the appellant and the crime scene.

[55]

The appellant points to evidence elicited by Crown counsel that the
appellant frequently wore high-heeled shoes, and that several of the undercover
officers were asked to comment on her footwear saying:  she wore two, two-and-a-half
inch heels; changed from her high-heeled shoes into winter boots; her usual
high-heeled shoes and her usual attire of a nice dress, high-heeled shoes,
purse.

[56]

The appellant concedes that the observation of a shoe print at the scene
was admissible, but contends that the opinions of Detective MacLennan,
Detective Peters and Sergeant Mellis were not admissible because none of them
was qualified to give expert evidence and, in any event, their opinions were
not probative of any issue in the case.  Counsel points out that despite a
search of the appellants residence, no shoe was ever found that matched the
shoe print observed at the scene, and there was no evidence to connect the
appellant to the shoe print.

[57]

The appellant says that the error in admitting the police officers
opinions, together with the evidence adduced by the Crown that the appellant
frequently wore high-heeled shoes, was compounded by Crown counsels submission
in his closing address, quoted above, where he said:

... youll find that the shoe impression of the pointed toe
and the high heel, which was a small shoe like a womans shoe,
you might
find that was hers.

[Emphasis added.]

[58]

The appellant says the shoe print evidence, such as it was, called for a
clear instruction from the judge to disregard, or to give no weight to it, as
having no probative value.

[59]

Crown counsel says that the opinions expressed by the two police
detectives were not in the nature of expert opinions, but were rather lay
observations within the realm of common, ordinary knowledge and human
experience.  The Crown says the officers opinions were properly admitted,
and it was up to the jury to give them whatever weight they considered
appropriate.

[60]

The Crown says it is entirely speculative to suggest that the jury would
reason from the appellants regular wearing of high-heeled shoes, and the
Crowns comments in closing, to make a link between the appellant and the commission
of the murder.


Evidence of
Bad Character

[61]

Counsel for the appellant draws a distinction between evidence of the
appellants
conduct
, on the one hand, and the appellants
statements
during the course of the undercover operation, on the other, from which the
jury might engage in prohibited propensity reasoning, and for which a clear
limiting instruction was required.

[62]

Counsel concedes that with respect to the appellants bad conduct during
the undercover operation  her participation in money laundering, false credit
cards, the kidnapping, etc.  the judges instructions to the jury warning
against propensity reasoning were adequate.

[63]

However, with respect to the many statements the appellant made to the
undercover police officers that showed evidence of her bad character, the judge
gave no warning or limiting instruction whatever.  Counsel says her graphic and
colourful statements as to her willingness to maim, torture, kill and engage in
violent, savage behaviour were highly prejudicial because they imply a
propensity for violent behaviour and criminal activity, and show evidence of
the appellants bad character.

[64]

The appellant acknowledges that the judge gave a proper limiting
instruction when warning the jury against propensity reasoning from the
appellants criminal conduct, prior wrongdoing, past misconduct and
criminal activities, etc.  However, the appellant says there is nothing in
the charge concerning bad character evidence that refers to her many
prejudicial statements during the undercover operation.

[65]

Counsel also says this omission was exacerbated by the trial judges
general instruction on hearsay evidence, and the appellants out of court
statements, in which the judge instructed the jury to decide whether the
appellant made the statement, if so whether it was true, and to give it such
weight as the jury thought fit.  Counsel says the jury would have understood
this instruction as applying to all out of court statements made by the
appellant, including the prejudicial statements showing evidence of her bad
character.

[66]

Counsel says that by lumping all of the appellants out of court
statements together the judge erroneously instructed the jury to consider the
appellants prejudicial statements for the truth of their contents.  So, for
example, the appellant says the jury would have understood that the appellants
statement in the undercover operation that she was an A to Z person could be
used by the jury for the truth of its content.

[67]

Counsel for the Crown says the jury would not have drawn a distinction
between conduct showing evidence of bad character, and words showing evidence
of bad character, and no one at trial invited the jury to do so.  Moreover, the
Crown says such a distinction is not viable.  The judges warning against
propensity reasoning refers to both conduct and speech.  There was only one
body of evidence showing the appellants bad character, and it all came during
the undercover operation.  The statements made by the appellant were simply
tough talk, not criminal in nature, and did not require a separate
instruction.

[68]

The Crown says the statements are not highly prejudicial, and relate
mainly to hypothetical responses to staged criminal activities.

[69]

The Crown says that while these statements reveal a tendency to talk
tough, the propensity they demonstrate is a propensity to make such claims, not
to act in accordance with them.  The statements demonstrate the appellants
relationship to the undercover police officers, her eagerness to impress them,
and her willingness to participate in future criminal activities of the
organization, including violent activities.  As expressed in the Respondents
Factum at para. 70:

So characterized, the impugned
statements fall squarely within the body of evidence that the trial judge
instructed the jury was highly relevant to and had probative value in respect
of, the critical issue of the truthfulness and reliability of her confession to
Sergeant [B].

[70]

The Crown observes that the defence took no objection at trial to the
adequacy of the trial judges instruction against propensity reasoning based on
evidence of bad character.

V. 
Discussion

A.

Shoe
Print Evidence

[71]

The defence took no objection at trial to admission of opinions from the
police officers who described what they saw as a shoe print, or footprint, left
by a high-heeled shoe.  Nor do I think such an objection could have been
sustained.  Those opinions do not require any special expertise or
qualification, and they fall within the realm of lay opinion evidence.  They
are opinions that could as well be expressed by any astute observer, of
ordinary experience:
R. v. Powell
, 2006 ABCA 267, [2006] A.W.L.D. 2953;
R. v. Lee
, 2010 SCC 52, [2010] 3 S.C.R. 99;
R. v. Graat
, [1982] 2
S.C.R. 819, 144 D.L.R. (3d) 267.  So, in my view, the evidence was not
inadmissible for that reason.

[72]

The question is, to what issue before the jury, if any, was such
evidence relevant.  The central issue at trial was the identity of the
perpetrator.  There was no match between the shoe print found at the scene and
any footwear connected specifically to the appellant.  The evidence that the
appellant usually wore high-heeled shoes does not distinguish her from a large
proportion of the adult female population.  If that is where the matter rested,
in my view, the jury would not have used the evidence in an impermissible way
as evidence of the appellants identity as the killer.

[73]

However, the matter did not rest there.  In his address to the jury,
Crown counsel said that the jury might find that the high-heeled shoe
impression was hers, i.e., the appellants.  This was an invitation to the
jury to use the evidence for an impermissible purpose, and to engage in
speculative reasoning for which there was no foundation in the evidence.

[74]

The central issue in the case was the reliability of the appellants
undercover confession.  The presence of physical evidence tending to
corroborate the confession is accepted as being an important safeguard for the
reliability of undercover confessions.  The judge instructed the jury on the
importance of safeguards in such circumstances, but did not correct the
erroneous submission made by Crown counsel inviting the jury to find that the
shoe print was left by the appellant.

[75]

The Crown points out that the defence relied on the shoe print evidence
as being inconsistent with the appellants confession, and therefore as a
reason for regarding the confession as unreliable.  Crown says it is
inconsistent for the defence to rely on this evidence for one purpose, and at
the same time to contend that it is inadmissible.

[76]

I have already concluded that the police officers evidence concerning
the shoe print was admissible.  The question is its relevance, and the purpose
or purposes for which it might properly be used.  In my view there was no
reason why the defence could not point to the evidence of the shoe print being
found in the bathroom as inconsistent with the statement in the appellants
confession that she never went into the bathroom, and that this inconsistency
was evidence of the confessions unreliability.

[77]

However, the relevance of the evidence for that purpose does not render
it relevant for all purposes.  As physical evidence on the issue of the
killers identity, the shoe print evidence had no probative value whatever. 
Crown counsel should not have suggested that it did, and the judge should have
corrected this misstatement in her charge.

[78]

Her failure to do so was an error.

B.

The
Charge on Bad Character Evidence

[79]

The appellants prejudicial statements showing a willingness to engage
in violent and criminal behaviour were properly admitted as part of the
narrative, and for the purpose of showing the appellants apparent eagerness to
be accepted into the fictitious criminal organization.  In addition, however,
and apart from their permissible uses, the statements could also be treated as
showing the appellant to be a person of bad character.  The question is whether
the possible risk of the use of those statements for such an improper purpose
was sufficiently great as to require a separate and distinct instruction from
the judge warning them against such improper usage.

[80]

The judge gave a full and careful warning about the prohibited use of
propensity reasoning from evidence of prior criminal conduct under the heading
Character Evidence Regarding Ms. James, quoted above at paras. 48 and 49. 
The warning is directed to evidence of prior wrongdoing or bad acts.  The only reference
to her
statements
was, as quoted above at para. 49  how she responded
to questions, requests and instructions .

[81]

In my view, a reasonable juror would regard prior conduct as better
evidence of bad character than prior statements.  Reasonable persons tend to
judge others more by what they do than by what they say  actions speak louder
than words.  Assuming, as we must, that the jury would follow the judges
instructions, and not engage in propensity reasoning based on prior bad
conduct, it seems to me that the jury would similarly not engage in propensity
reasoning based on the appellants prejudicial statements.

[82]

One cannot entirely foreclose that possibility, and a perfect charge
might have included an express warning against such reasoning.  It is, however,
well-settled that an accused is entitled to a properly instructed jury, and not
a perfectly instructed jury (
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R.
523).  In my view the charge as given was sufficient to guard against the
improper line of reasoning the appellants counsel posits.

[83]

The appellants second point with respect to the appellants prejudicial
statements is that the jury would treat them as other out of court statements
made by the appellant, and so accept them for the truth of their content.

[84]

The judge gave separate instructions on the following matters:

1)       Out of
court statements by the appellant;

2)       Statements
made by the appellant to undercover officers;

3)       Character
evidence concerning the appellant; and

4)       Out of
court statements by persons who did not testify.

[85]

The jury were provided with written copies of the judges instructions. 
It seems most unlikely to me that, in these circumstances, a juror would
transfer the instructions on hearsay evidence, to the use of evidence tending
to show bad character.

[86]

In my view, any imperfection in failing to give a separate instruction
to the jury against propensity reasoning from the appellants prejudicial
statements, is not one that calls for the intervention of this Court.

C.
The Application
of s. 686(1)(b)(iii) (the Curative Proviso)

[87]

Having concluded that the trial judges failure to correct the
misstatement of Crown counsel concerning the shoe print evidence was
potentially harmful to the appellants defence, the question is whether it can
be cured by the application of the curative proviso.

[88]

The curative proviso can apply in two situations: where the error was
harmless such that it had no impact on the verdict, or, if the error was a serious
one, where the evidence was so overwhelming that there was no substantial wrong
or miscarriage of justice:
R. v. Khan
,
2001 SCC 86,
[2001] 3 S.C.R. 823, para. 26.

[89]

In
R. v. Khan,
Justice Arbour further provided examples
of harmless errors which relate to a jury charge, at para. 30:

Errors in the charge to the jury respecting a very minor
aspect of the case that could not have had any effect on the outcome
or
concerning issues that the jury was otherwise necessarily aware of
were
also cured by the application of the proviso (citations omitted).

[Emphasis added.]

[90]

The error in the Crowns closing in this case cannot be said to concern
a minor aspect of the case.  The suggestion made by the Crown went to the
identity of the murderer, which was central to the case.  Nonetheless, it may
concern an issue that the jury was otherwise aware of.  Identifying an error as
such is assisted by looking at the jury charge, and counsels closings, as a
whole:
R. v. Feil
, 2012 BCCA 110, [2012] 282 C.C.C. (3d) 289, para. 86.
 It is also appropriate to consider the error in the context of the entire case
to determine whether or not it related to an issue the jury was aware of:
R.
v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433, para. 93.

[91]

In this case, I am satisfied that the error regarding the shoe print was
a harmless one that concerned an issue that the jury was otherwise necessarily
aware of.  In suggesting that the jury might find the shoe print was made by the
appellant, Crown counsel asked the jury to make a finding for which there was
no evidence.  It was not a point stressed by counsel, but rather an unfortunate
misstatement made while attempting to resolve a potential inconsistency in the
confession.  Crown counsel acknowledged, elsewhere in his closing submissions,
that the shoe print had not been connected to the appellant.  The lack of a
match was acknowledged by Detective Mellis in his examination in chief at
trial.  Further, the charge to the jury included the following points about the
shoe print:

The Defence says there are a number of significant
inconsistencies between the known facts and what Ms. James told Sergeant [B].
... [T]here was a shoeprint and blood splatter in the bathroom of the
deceased's residence, but Ms. James said she did not go into the bathroom...

...

The officers also investigated
the shoeprint found in the bathroom of the deceased's residence and found no
matching shoe in the deceased's residence or in Ms. James' residence.

[92]

In the absence of any evidence connecting the shoe print to the
appellant, the jury would have had to engage in speculative reasoning to make
the finding suggested by Crown counsel. Yet, the trial judge gave clear
instructions against engaging in speculation:

Before reaching a verdict of guilty based on circumstantial
evidence you must be satisfied beyond a reasonable doubt that the guilt of the
accused is the only reasonable inference to be drawn from the facts that you
find have been proven.

I also remind you that an inference is much stronger than a
belief based on speculation or conjecture.
If there are no proven facts
from which an inference can be logically drawn, it is not possible to draw an
inference
.  You would be just guessing and a guess is not sufficient as a
basis for convicting an accused no matter how shrewd the guess might be.

...

I repeat that your decision to accept or reject Ms. James'
statement regarding her involvement in the death of Ms. Wakabayashi
cannot
be based on speculation or conjecture.

[Emphasis added.]

[93]

Where a closing submission invites the jury to engage in speculation,
the error may nonetheless be harmless where the charge to the jury includes a sufficient
warning against such speculation.  In
R. v. Nguyen
, [2002] 57 O.R. (3d)
589, 2002 CanLII 44910 (ON CA), the Court concluded that the failure of a trial
judge to correct a similar invitation to speculate in the Crowns closing address
was a harmless error.  In that case, as here, the jury charge included a
warning against such speculation.  I similarly conclude that the statement by
the Crown in this case was sufficiently addressed by the general warning
against speculation in the jury charge.  The jury knew that there was no
evidence to make the finding suggested by the Crown, they knew that to make a
finding without evidence was to speculate, and they knew that they were not
permitted to speculate.  The error relates to an issue of which the jury was otherwise
necessarily aware.

[94]

In addition to being an error on a matter of which the jury was aware,
the error was also one which defence counsel did not object to or seek a
correction of in the charge to the jury.  While not determinative, a failure to
object can be a factor in assessing whether or not an error was harmless.  As
stated by Bastarache J. in
R. v. Daley,
2007 SCC 53, [2007] 3 S.C.R.
523, para. 58:

While not decisive, failure of counsel to object is a factor
in appellate review.  The failure to register a complaint about the aspect
of the charge that later becomes the ground for the appeal
may be indicative
of the seriousness of the alleged violation
.

[Emphasis added.]

[95]

Based on all the above, I am persuaded that the error can properly be
characterized as harmless and that the curative proviso of s. 686(1)(b)(iii) should
apply.  The jury was aware that there was no evidence to connect the appellant
to the shoe print.  The jury was also aware that they were not to engage in
speculative reasoning, and must base their findings only on the evidence.  Finally,
the conclusion that the misstatement was relatively insignificant is supported
by the fact that no objection was raised at trial.

[96]

While the above is a sufficient basis on which to dismiss this appeal, I
would also make the following observations about the overall impact of the
Crowns case against the appellant.  On my review of the evidence, I am
satisfied that even if the identified error were regarded as a serious one, the
evidence was so overwhelming that the conviction was inevitable.

[97]

The appellants confession to Sergeant B, and its reliability, was
central to the Crowns case.  The confession contained numerous details about
the murder, and the crime scene, which, taken as a whole, provided compelling
evidence on which the jury could conclude that the confession was reliable.

[98]

For example, the appellant stated that the deceased was sitting in her
closet when attacked. Later in the confession she more specifically stated that
the deceased was sitting on a stool in the closet when attacked.  Photos of
the crime scene show an overturned stool in the closet, near the deceaseds
body.  Expert evidence was led by the Crown that suggested the deceased was
seated on the stool when the attack began.  On cross-examination, that expert
conceded that it is possible that the stool was knocked over during a
struggle.  Nonetheless, the appellants knowledge that the struggle involved a
stool inside the closet supported the reliability of the confession, as did her
statement that the deceased was seated on that stool, even if the latter could
not be strictly confirmed as having occurred.

[99]

The appellants confession indicated that the wounds to the deceased
occurred either while the deceased was seated or lying on the ground.  She
indicated that after being cut on her neck while seated, the deceased fell to
the ground.  She cut the deceased on the arms and legs while the deceased
kicked and grabbed at her.  Blood spatter analysis from the scene indicated
that all of the wounds to the deceased occurred while she was seated or lying
on the ground.  The cuts to the legs were considered to have occurred while the
deceased was alive, consistent with the appellants description.  The wounds to
the deceaseds arms were considered to be defensive wounds, again consistent
with the appellants description.

[100]

The
appellant stated that when she left, the deceaseds body was laying on the
floor, in a small hallway... coming into the room...  At other points, the
appellant indicates that this location was near the bathroom and bedroom. 
Photos of the crime scene show that the deceased was laying outside the walk-in
closet, in a hallway leading from the bathroom into her bedroom.

[101]

The
appellant stated that she and the deceased had coffee, so I washed the cup.  A
photo of the kitchen shows a pot of coffee and a coffee cup next to the sink.  While
there is no evidence that the coffee cup was the one the appellant was
referring to, it nonetheless tends to support the version of events provided in
the confession as an accurate account of what happened that day.

[102]

The
appellant indicated that the wound to the neck was the fatal one.  She
described the wound as one which there was no way you can survive.  At
another point, she stated that it was just a matter of minutes, because I, I
cut her along the jugular vein, shes not gonna last long...  Medical evidence
described the wound to the neck as cutting through the jugular veins, and as
one that would have been rapidly incapacitating and fatal.  It is conceivable
the appellant could have invented this detail based on her experience as a
nurse, but again, the appellants ability to present accurate details of the
events that led to the deceaseds death make that possibility unlikely.

[103]

It is
possible that some details in the appellants confession might have come from
media accounts of the murder.  For example, Ms. James states that the incident
occurred around 9:30 in the morning, a time that was stated in one of the
newspaper stories on the record.  Similarly, the fact that the deceaseds
throat was slit was mentioned in one story, though not with anything near the
level of detail that the appellant offered.

[104]

As a
whole, however, the news stories simply did not contain the degree of detail
necessary for the appellant to have fabricated such an accurate account of the
murder.  Further, the media stories contained details which the appellant did
not adopt, making it doubtful that she was basing her account on media
information rather than the truth.  For example, one story described the
murderer as parking at the deceaseds house.  The appellant said that she
parked five blocks away from the house.  Another story describes the body as being
found in the dressing room, while the appellant, as noted above, more precisely
described the area as not simply a dressing room, but a hallway outside the
walk-in closet.  The appellant did not adopt the media statement that the
murder weapon was a knife, insisting that in fact it was a box cutter.  The
appellants certainty on this point further supports a conclusion that she was
not recounting a story based on media reports, but rather stating the truth to
her best recollections.

[105]

Alternatively,
it was suggested at trial that the appellant based her story on a conversation
with the deceaseds husband, who found the body.  He informed the appellant
about the wound to the neck, but did not recall telling her about any other
wounds, such as to the arms or legs.  The conversation, as recalled by the deceaseds
husband, did not contain the detail necessary for the appellant to construct
such an accurate account of the murder.

[106]

There may
have been inconsistencies within the appellants confession.  The defence
contended that the appellant gave at least three different versions of the
killing, and that her statement of not going into the bathroom was inconsistent
with the location of the shoe print.  It is fair to say that the appellants
account of the killing may not have come out in an orderly and chronological
sequence.  That, however, might also be viewed as a natural consequence of
trying to recall details of an event which occurred some 16 years earlier.  It
was for the jury to decide whether this gave credibility to the statement, or
whether it showed that the statement was contrived.

[107]

As to
whether the shoe print evidence was inconsistent with the confession, the
police evidence is that the impression was seen near the
entrance
to the
bathroom which may well not be inconsistent with the appellants statement that
she did not go into the bathroom.  Again, the jury heard the police evidence,
saw the pictures, and saw and heard the appellants confession, and it was for
them to decide if there was an inconsistency, and if so what effect it had on
the reliability of the confession.

[108]

The
reliability of the confession was supported by the undercover officers
subjecting the appellant to the mantra of trust, honesty and loyalty,
expected of all members of the fictitious criminal organization.  Throughout
the confession, the appellant acknowledged the importance of telling the truth,
and at numerous points, when asked, indicated that she was being truthful about
the murder.

[109]

The
confession was videotaped, and that is a further safeguard in the weighing of
all out of court statements, as it assists the trier of fact in assessing the
confession, including its trustworthiness:
R. v. Oickle
, 2000 SCC 38,
[2000] 2 S.C.R. 3, para. 46.

[110]

There was
evidence that the appellant had a motive.  Whether her husband was in fact
engaging in an affair with the deceased, or not, there was evidence which could
cause the appellant to believe that he was so engaged.  And there was evidence
that she believed that he was.  She borrowed the school custodians car to
follow her husband.  And she had someone check on her husbands telephone calls
while he was out of town to the deceaseds home telephone number.

[111]

As well,
there was evidence that the appellant had opportunity to commit the killing. 
She had become close friends with the deceased.  She and her husband had wine
stored in the deceaseds home.  The fact that, unusually, the deceaseds back
door was unlocked was evidence from which one could infer that the killer was
known to the deceased and that the deceased had let him or her into the house. 
That inference was also supported by the fact that the killing took place in
the deceaseds bedroom and dressing area.

[112]

The
evidence of motive and opportunity, together with the detailed confession,
formed an overwhelming foundation on which a conviction could be based.  When
weighed against that body of evidence, it seems unlikely that the judges failure
to correct Crown counsels passing statement that the jury might find the shoe
print to be hers, could have had any effect on the verdict.  In these
circumstances, in my view, the verdict of guilt would necessarily have been
entered even if the error concerning Crown counsels statement had not been
made.  Accordingly, even if the error were a serious one, the curative proviso
would still apply.

[113]

I conclude that s. 686(1)(b)(iii) applies.  I would affirm the verdict
of guilt and dismiss the appeal.

The Honourable Chief Justice Finch

I Agree:

The
Honourable Mr. Justice Lowry

I Agree:

The Honourable Madam Justice
Smith


