



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Biddersingh, 2022 ONCA 6

DATE: 20220110

DOCKET: C63052 & C63064

Strathy C.J.O., Hourigan and
    Paciocco JJ.A.

DOCKET: C63052

BETWEEN

Her Majesty the Queen

Appellant

and

Elaine Biddersingh

Respondent

DOCKET: C63064

AND BETWEEN

Her Majesty the Queen

Respondent

and

Elaine Biddersingh

Appellant

Alexander Alvaro, for the appellant
    (C63052) and respondent (C63064)

Paula A. Rochman,
amicus
, for
    the respondent (C63052) and appellant (C63064)

Heard: November 25, 2021

On appeal from the conviction entered on
    June 20, 2016, by Justice Ian A. MacDonnell of the Superior Court of Justice,
    sitting with a jury.

Hourigan
    J.A.:

Part I: Overview


[1]

In 1991, Melonie Biddersingh came to Canada as a
    13-year-old with her brother, 12-year-old Dwayne, and stepbrother, 17-year-old
    Cleon. She left Jamaica to live with her father, Everton Biddersingh, and her
    stepmother, the appellant, in hope of a better life with more opportunities. Instead,
    from the moment she arrived in Canada she endured horrendous abuse.

[2]

On September 1, 1994, a York Regional Police
    officer discovered a fire burning beside a garbage bin in an industrial area of
    Vaughan. After the fire department was called to extinguish the blaze, the body
    of what appeared to be a child, or a small adult was located in the ashes
    inside the remnants of a suitcase. A forensic pathologist determined that the
    body was that of a severely malnourished female with 21 fractures and a broken
    pelvis, and that the cause of death or a major contributing factor was
    drowning. Unfortunately, at the time, the police were unable to identify the
    victim. As a result, the case remained unsolved for almost two decades. The
    body was later positively identified as Melonie.
[1]

[3]

In December 2011, the appellant disclosed to her
    church pastor the circumstances of Melonies death. She advised that her
    husband had abused Melonie and that her dead body had been put into a suitcase.
    The appellant admitted that she, Cleon, and Everton had been involved in the
    disposal of Melonies remains. In addition, the appellant disclosed details of
    Everton abusing her, both around the time of Melonie's death and at the time of
    the discussion. The pastor then provided this information to the Niagara
    Regional Police. As a result, the appellant was eventually interviewed by the Toronto
    police on January 23, 2012, at which point she provided information about the
    circumstances of Melonie's death and her own safety concerns with respect to
    Everton.

[4]

On March 5, 2012, Toronto police charged Everton
    and the appellant with
failing to provide the
    necessaries of life (two counts), criminal negligence causing bodily harm, aggravated
    assault, forcible confinement, and offering an indignity to a dead human body
    all in relation to their alleged mistreatment of Melonie. They were
    subsequently charged with first degree murder.

[5]

The two accused were tried separately, with
    Everton's trial proceeding first. The appellant was called as a witness. Prior
    to the commencement of Everton's trial, the appellant unsuccessfully applied
    for an order temporarily banning publication of her evidence and the evidence
    of other witnesses as to what she was alleged to have said or done. The
    appellant testified at Everton's trial over a period of four days. The position
    of Everton's counsel was that she was responsible for Melonie's mistreatment
    and death.

[6]

The trial received extensive negative media
    coverage. On January 7, 2016, Everton was found guilty of first degree murder.
    Subsequent media coverage outlined some of the evidence that had been ruled
    inadmissible at trial, including information detailing Dwayne's suspicious
    death in 1992.

[7]

The appellants trial for first degree murder
    arising from Melonies death began on April 11, 2016.
Before
    the trial, defence counsel contacted Crown counsel and sought its consent to
    proceed without a jury, as required under s. 473(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, in light of the negative publicity surrounding
    Elaine's evidence at Everton's trial. The Crown refused to consent to proceed
    without a jury.

[8]

Defence counsel then brought an application to
    permit the appellant to be tried without a jury based on negative pretrial
    publicity, pointing to several media articles in relation to evidence adduced
    and not adduced before the jury in Everton's trial. She also relied on the
    results of a public opinion survey her counsel had commissioned regarding her
    case.

[9]

The trial judge dismissed the defences
    application and the jury convicted the appellant of second degree murder. On
    her conviction appeal, with the assistance of
amicus
, the appellant
    raises the following grounds of appeal:

1.

The trial judge erred in dismissing the
    defence's application for a judge alone trial based on negative pretrial
    publicity and juror partiality.

2.

The trial judge erred in ruling that certain
    statements made by the appellant were admissible because she was not a suspect
    at the time they were made, and in ruling that the police did not mislead her
    about her legal jeopardy.

3.

The trial judge erred in refusing to instruct
    the jury on the intervening act of drowning.

[10]

The Crown cross-appeals
against
    the appellants acquittal for first degree murder only if the appellant
    succeeds on her appeal from her conviction for second degree murder. The Crown
    raises only one ground of appeal: the trial judge erred in law by limiting the
    route to first degree murder to death caused by drowning.

[11]

For the reasons that follow, I would dismiss the
    appeal. Given this result, it is unnecessary to consider the Crowns
    cross-appeal. In summary, I conclude as follows:

·

The trial judge was correct in finding that the
    appellant did not meet her heavy onus of establishing why the Attorney
    General's consent to a trial by judge alone should be dispensed with in the circumstances
    of this case. He properly considered the evidence and the general protections
    in place to ensure fair jury trials.

·

Regarding the impugned statements, even if the
    trial judges voluntariness analysis was flawed, there was no prejudice to the
    appellant. The impugned statements were not introduced into evidence, and the
    trial judges admissibility decision could not have realistically played a role
    in her decision not to testify.

·

Finally, in the circumstances of this case, the
    trial judge correctly instructed the jury that to be a cause of death, an act
    or omission by the appellant must be a significant contributing cause. Given
    this instruction, there was no need for an intervening act instruction.

Part II: Analysis

(1)

Jury Trial

(a)

The Issue

[12]

The appellant brought an application to dispense
    with the Attorney Generals consent for a trial by judge alone on the basis
    that her right to a fair trial under s. 11(d) of the
Canadian Charter
    of Rights and Freedoms
would be compromised if a judge and jury tried her.
    In making this submission, she pointed to the negative pretrial publicity about
    her evidence at Everton's trial and the evidence that came out after the trial
    regarding Dwayne's death in 1992 that resulted from a fall from the balcony of
    the familys apartment. She also relied on a public opinion poll regarding her
    case, arguing that it showed that she could not impanel an impartial jury.

[13]

The trial judge found that the polling evidence
    filed by the appellant did not support the suggestion that it would be impossible
    to find 12 impartial jurors. Further, he determined that, contrary to the
    submissions of defence counsel, the questions to prospective jurors could be
    devised in a way that would not reveal prejudicial information. The trial judge
    also noted that the possibility of prejudicial details coming to the jury's
    attention after they have been selected could be mitigated by the usual
    safeguards, including instructions to the jury to refrain from attempting to
    find information about the case.

[14]

On appeal, the appellant does not argue that the
    Crowns conduct in refusing to consent to a judge alone trial amounts to an
    abuse of process. Instead, she submits that her right to a fair trial has been
    violated. Specifically, she argues that there was a sufficient evidentiary
    basis for the order sought. According to the appellant, the trial judge erred
    in law by setting the test for an order for a judge alone trial at a level that
    is impossible to meet.

(b)

The Law

[15]

There is no dispute between the parties
    regarding the relevant process and test on an application for a judge alone
    trial pursuant to s. 473(1) of the
Criminal Code
. An accused
    charged with murder must be tried by judge and jury unless the accused and the
    Attorney General consent to a trial by judge alone. Where the Attorney General
    does not consent, the accused can bring an application for an order for a judge
    alone trial.

[16]

The test on such an application is difficult to
    meet. It was described this way in
R. v. Khan
, 2007 ONCA 779, 230
    O.A.C. 174, at paras. 13 to 16:

In s. 473(1) of the
Criminal Code
,
    Parliament has made its intention clear that a person charged with murder, the
    most serious crime in the
Criminal Code
, is to be tried by a court
    composed of a judge and jury absent the consent of both parties. While this
    provision can be overridden in order to ensure an accuseds right to a fair
    trial, it should not be interfered with lightly.

In our view, this courts decision in
R.
    v. Henderson
(2001),145 O.A.C. 150, is dispositive of this ground of
    appeal.
Henderson
makes it clear that an accused seeking a judge alone
    trial in these circumstances must, at a minimum, meet the test required for a
    change of venue  a test the appellants concede is more stringent than the one
    they propose. On our view of the record, the appellants fall well short of
    meeting that test. We are satisfied that their right to a fair trial was
    adequately protected through well-established procedures, including extensive
    screening of prospective jurors and challenges for cause.

As
Henderson
provides a full answer
    to this ground of appeal, we find it unnecessary to finally determine the test
    that should be applied when an accused seeks to dispense with the mandatory
    requirement of trial by jury under s. 473(1). That said, we are inclined to the
    view that absent consent from the Crown, in order to avoid the requirement of
    trial by jury under s. 473(1), an accused must show that, on balance, the
    time-honoured statutory and common law procedures designed to preserve and
    protect the right of every accused to a fair trial by an impartial tribunal are
    insufficient in the particular circumstances of his or her case.

Whatever the precise test, it will not be an
    easy one to meet. That accords with our view that s. 473(1) should only be
    overridden in the clearest of cases. The test proposed by the appellants falls
    well short of the mark. If adopted, it would effectively eviscerate s. 473(1).

[17]

Based on the foregoing, the issue is whether the
    trial judge erred in finding that the appellant had not met her onus of
    establishing that this is one of the clearest of cases where s. 473(1) should
    be overridden.

(c)

The Appellants Position

[18]

The appellant submits that the publicity
    surrounding Evertons trial was widespread. In support of that submission, she
    notes that during the course of the trial a juror referenced the death of
    Dwayne in a conversation with another juror. The appellant concedes, however,
    that the juror receiving the information brought it to the trial judge's
    attention and was discharged, as was the juror who conveyed the information,
    albeit for other reasons. The argument regarding these jurors is not raised as
    an independent ground of appeal. In my view, it is unfair and unhelpful to
    consider what a juror might have said during the trial in assessing the trial
    judge's decision regarding the application for a judge alone trial made before
    the trial. I do not consider that information relevant in determining whether
    the trial judge erred in refusing the application.

[19]

As noted, the appellant's principal argument
    relates to the sufficiency of the evidence she adduced on the application. She
    filed affidavits that affixed copies of articles written about her. In
    addition, she relied on the results of a public opinion telephone survey
    conducted by Forum Research. Dr. Lorne Bozinoff, the President and CEO of Forum
    Research, also testified on the application to explain the survey results. Given
    problems with Dr. Bozinoff's testimony, the appellant did not rely on his
    expert evidence and instead relied solely on the raw data generated by the
    survey.

[20]

The appellant focuses on a series of questions
    designed to determine whether the respondents would be prepared to discharge
    their duties faithfully and properly. The appellants view of the data is that
    an inference could be drawn that some jurors would not follow a judges
    instruction not to seek or receive outside information, that some jurors would
    engage in their own Internet research about the case and obtain inadmissible
    information, and that some who received that information would not be able to
    disabuse themselves of it when performing their duties.

[21]

The trial judge rejected that argument, at para.
    41 of his ruling, on the basis that it "is founded on an assumption that
    members of a real jury in a real trial will behave in the same way as random
    members of the public taking a telephone survey." He observed that even
    though the survey respondents were asked to assume that a judge had instructed
    them not to research any details on the case, they were not asked to assume
    that a Superior Court judge explained to them the importance of the
    instruction, how it could lead to a miscarriage of justice if they did not
    follow the instruction, and that they had taken an oath or made a solemn
    declaration to decide the case solely on the evidence led at trial. Further, the
    trial judge relied on
R. v. Find
, 2001 SCC 32, [2001] 1 S.C.R. 863,
    for the proposition that trial processes are effective in cleansing jurors of
    influence from emotion, prejudice, or preconception.

[22]

The appellant argues that the error in the trial
    judge's analysis is that if a court can always fall back on the general court
    process to protect the interests of the accused to a fair trial, then an order
    for a judge alone trial under s. 473(1) of the
Criminal Code
will
    never be granted. In other words, the bar has been set too high.

(d)

Discussion

[23]

I would not give effect to this ground of appeal.
    I accept that the impugned part of the trial judges analysis regarding the
    safeguards in the criminal jury system could apply in any case. However, in my
    view, this part of his analysis was directly responsive to the inferences that
    the appellant was drawing from the survey data. She put forward the rather
    general argument that there is a chance that jurors would not abide by a trial
    judges instructions and might conduct their own research. Of course, the same
    argument could be made in any case. The trial judge quite correctly responded
    to that submission by observing that the safeguards developed over the
    centuries have evolved to protect against those possibilities.

[24]

Second, the trial judge's analysis was not
    limited to the general safeguards in the trial process. He considered the
    circumstances of this case. For example, he noted that the survey results
    showed that when asked whether they had heard or seen anything in media or the
    Internet regarding "the death of Melonie Biddersingh [whose] body was
    found in [a] burning suitcase in 1994 [and whose] remains weren't identified
    until 2012 when her father and stepmother were charged with murder," 46%
    of respondents answered no. In addition, he pointed to the result that 74% of
    respondents had not heard or seen anything about the appellant. The trial judge
    also placed the coverage of Everton's trial in context, noting that at the time
    of the trial, there was another high profile case in the news that involved the
    shooting by a police officer of a member of the public on a streetcar.

[25]

In my view, the trial judge properly considered
    the evidence and the general protections in place to ensure fair jury trials
    and reached a decision that was free from error. Consequently, I would not give
    effect to this ground of appeal.

(2)

The Appellants Statements

[26]

The Crown brought a pretrial application for an
    order that various statements made by the appellant to the police were
    admissible for the purposes of cross-examining her if she chose to testify. At
    issue on this ground of appeal is the trial judge's ruling regarding two of the
    appellant's statements. The first statement was made on January 23, 2012, to
    Detective Sergeant Steve Ryan of the Toronto Police Service in the course of an
    interview at the office of the Homicide Squad. The second statement was made on
    March 5, 2012, to Detective Sergeant Ryan in the course of an interview at 52
    Division following her arrest.

[27]

Detective Sergeant Ryan testified on the
voir
    dire
. The defence called no evidence. The trial judge found that, at the
    time of the January 23, 2012 statements made to Detective Sergeant Ryan, a
    reasonably competent investigator would have considered the appellant to be a
    witness and not a suspect because the investigation was focused on the
    mistreatment of Melonie and potentially the appellant, and not neglect or
    inadequate parenting on the appellants part. As a result, the confessions rule
    did not apply and the statement could be used for the purposes of
    cross-examination.

[28]

In the alternative, the trial judge concluded
    that even if the appellant was a suspect, her statements were nevertheless
    voluntary. He noted that the statement was videotaped and affirmed and that the
    officer provided the appellant with the primary and secondary caution. The
    officer instructed the appellant regarding her right to counsel and gave her
    the opportunity to speak to a lawyer when she asked. Further, he told the
    appellant that she could be charged with offences including homicide and warned
    her of the penalties for lying under oath. All of these steps were consistent
    with what she would have been told had she been arrested and charged, except
    that she was informed that she could leave at any time. Thus, the trial judge
    found that the cautions and warnings given by the officer were more than
    sufficient to advise the appellant of her right to remain silent. He also held
    that there was no evidence that Detective Sergeant Ryan misled her.

[29]

In addition, the trial judge found that the
    statement made to Detective Sergeant Ryan after the appellant's arrest during
    the police interview on March 5, 2012 was voluntary as it was not tainted by references
    to the January 23, 2012 statement.

[30]

Neither of the statements were tendered in
    evidence at trial, as the appellant elected not to testify.

[31]

The appellant submits that the trial judge made
    three errors in his analysis. First, she argues that he erred in finding that she
    was not a suspect but a witness at the time of her January 23, 2012 statement.
    Second, the trial judge is said to have erred in finding that Detective
    Sergeant Ryan did not mislead her by providing incorrect legal advice regarding
    her potential jeopardy if she had done nothing to stop the abuse of Melonie. 
    Finally, the appellant submits that her March 5, 2012 statement should also
    have been ruled inadmissible because it was tainted by references to her
    January 23, 2012 statement.

[32]

In support of her submission, the appellant
    seeks to adduce fresh evidence on this appeal. The proffered evidence is a CTV
    news article published on September 10, 2021, in which former Detective
    Sergeant Ryan  now CP24's Crime Analyst  discussed taking a statement from
    the appellant and his reaction to her interview. The story was based on a
    podcast on which the officer appeared. The appellant maintains that the parts
    of the article demonstrate that Detective Sergeant Ryan misled the court when
    he testified that he did not believe the appellant to be a suspect.

[33]

I am not persuaded that the appellant suffered
    any prejudice as a consequence of the trial judges voluntariness ruling.
The
    impugned statements were not introduced into evidence, and the trial judges
    admissibility decision could not realistically have played any role in her
    decision not to testify, given that she had conceded the voluntariness of two
    other statements and would be facing her testimony from Everetts trial. Further,
    there is nothing in the impugned interviews that could realistically have
    altered her testimony.

[34]

Given my conclusion that the appellant could
    have suffered no prejudice from the trial judges admissibility ruling, it is
    unnecessary to consider the fresh evidence application. For these reasons, I
    would dismiss this ground of appeal.

(3)

Intervening Act

[35]

The appellant submits
    that the trial judge erred in failing to instruct the jury on the intervening
    act of drowning in the context of culpable homicide. The defence requested this
    instruction in the pre-charge conference. Specifically, it sought an
    instruction that the jury should consider whether the drowning was an
    intervening act. The request
for an
    intervening act instruction arose from the theory that Everett may have drowned
    Melonie on his own, which, if true, could have been an intervening act that broke
    the chain of causation
.

[36]

The trial judge
    rejected that request.
Instead, he repeatedly
    instructed the jury that
the
    appellants conduct had to make a significant contribution to Melonies death
    t
o be guilty of culpable homicide. He
    charged the jury as follows:

[335] Proof that Elaine Biddersinghs failure
    to intervene to protect Melonie was an unlawful act is not sufficient to make
    her guilty of culpable homicide unless it was a cause of Melonie's death. As I
    have said, to be a cause of death, an act or omission must be a significant
    contributing cause. It is for you to say whether the defendants failure to
    intervene played a significant role in permitting a course of conduct that led
    to Melonie's death by drowning to continue. If you have a reasonable doubt concerning
    whether it played a significant role, then her failure to intervene will not
    make her guilty of culpable homicide.

[336] As I have said, one of the essential
    elements that must be proved to make a failure to perform the legal duty to
    protect Melonie from harm an unlawful act is the objective foreseeability of
    endangerment of Melonie's life or the risk of permanent injury to her. Objective
    foreseeability does not require that the specific mechanism of harm that was
    ultimately inflicted on Melonie, drowning, have been foreseeable... What is
    required, rather, is that a reasonable person would have foreseen that the
    failure to protect Melonie from the ongoing course of assaultive behaviour
    would lead to some further assaultive behaviour that would endanger her life or
    create a risk of permanent injury. Accordingly, if you are satisfied beyond a
    reasonable doubt that Elaine failed to intervene of protect Melonie, in
    circumstances that make her failure an unlawful act, that that unlawful act
    made a significant contribution to Melonie's death, and that it was objectively
    foreseeable that a failure to intervene would expose Melonie to a danger to her
    life or the risk of permanent injury, she is guilty of culpable homicide.

[37]

I am not persuaded that
    the trial judge erred in declining to give the intervening act instruction. His
    significant contribution instruction was entirely consistent with the decision
    of the Supreme Court in
R. v. Maybin
,
2012 SCC 24, [2012]
    2 S.C.R. 30, at para. 38.

[38]

In
my view, given the factual circumstances of this
    case, the significant contribution instruction made an intervening cause
    direction unnecessary. This can be seen by looking at the material factual
    scenarios if Melonie drowned:

·

Scenario 1: The appellant caused the drowning
    death of Melonie by actively participating in the drowning as a principal. No
    intervening act is possible, and no direction is required.

·

Scenario 2: The appellant aided or abetted
    Everett by encouraging him to drown Melonie or by assisting the drowning in
    some way short of direct participation, with the intention of assisting him. If
    she intentionally aided or abetted the very act, no intervening act is
    possible, and no direction is required.

·

Scenario 3: The appellant failed to fulfil her
    duty to protect Melonie from Everetts abuse in circumstances where it was
    reasonably foreseeable that Everett would kill Melonie. For there to be
    causation, the jury would be required to conclude that the appellants failure
    to act was a significant contributing cause to Melonies death. The trial judge
    not only repeatedly told the jury in general terms that to convict the
    appellant, they had to find that she had to make a significant contribution to
    Melonie's death, but also directed the jury specifically on this theory of
    guilt, telling them that they had to find that the appellants failure to
    discharge her duty by intervening had to play a significant role in permitting
    the course of conduct that led to Melonies death. On that scenario, there is
    no possibility of an intervening act.

·

Scenario 4: Everett drowned Melonie on his own,
    without the appellants participation, either unforeseeably or without the
    appellant having failed to discharge her duty. This would be an intervening act
    on Everett's part, but if the jury had a reasonable doubt that this may have
    happened, the judge's direction that to be guilty, the appellant had to make a
    significant contribution to Melonie's death, would have prevented her
    conviction.

[39]

Based on the preceding analysis, I
    am of the view that the trial judge did not err in failing to give the
    requested intervening act instruction. On the contrary,
the jury had a functional understanding of their
    obligations as a consequence of the significant contribution instruction.
    Therefore, I would dismiss this ground of appeal.

Part III: Disposition

[40]

I would dismiss the application for fresh
    evidence and dismiss the appeal for the foregoing reasons. The cross-appeal was
    only to proceed if the appellant succeeded in her appeal. Therefore, I would
    dismiss the cross-appeal as abandoned.

Released: January 10, 2022 G.R.S.

C.W. Hourigan J.A.

I
    agree. G.R. Strathy C.J.O.

I agree.
David
    M. Paciocco J.A.





[1]
First names are used in these reasons for clarity and are not
    intended to show any disrespect to the parties.


