



WARNING

The President of the panel hearing this appeal directs that
    the following should be attached to the file:

An order restricting publication in this proceeding under ss.
    486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the
    Criminal Code
provide:

486.4       (1)
Subject to subsection (2), the presiding
    judge or justice may make an order directing that any information that could
    identify the complainant or a witness shall not be published in any document or
    broadcast or transmitted in any way, in proceedings in respect of

(a)       any of the
    following offences;

(
i
)   an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an offence under
    section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on
    female), 156 (indecent assault on male) or 245 (common assault) or subsection
    246(1) (assault with intent) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 4,
    1983, or

(iii) an offence under
    subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual
    intercourse with a female between 14 and 16) or section 151 (seduction of a
    female between 16 and 18), 153 (sexual intercourse with step-daughter), 155
    (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 1, 1988; or

(b)       two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in any of
    subparagraphs (a)(
i
) to (iii).

(2)
In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)  at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the
    complainant of the right to make an application for the order; and

(b)  on application made by the
    complainant, the prosecutor or any such witness, make the order.

(3)
In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)
An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6       (1)
Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)
For
    greater certainty, an order referred to in subsection (1) applies to prohibit,
    in relation to proceedings taken against any person who fails to comply with
    the order, the publication in any document or the broadcasting or transmission
    in any way of information that could identify a victim, witness or justice
    system participant whose identity is protected by the order. 2005, c. 32, s.
    15.





CITATION:
R. v. J.W.C., 2011 ONCA 550



DATE: 20110810



DOCKET: C49105



COURT OF APPEAL FOR ONTARIO



Rosenberg, Lang and Watt JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



C. (J.W.)



Appellant



Timothy E. Breen and Diana
Lumba
,
          for the appellant



Susan Magotiaux, for the respondent



Heard: May 19, 2011



On appeal from conviction entered by Justice C. Marchand of
          the Superior Court of Justice, dated January 8, 2008.



Rosenberg J.A.:



[1]

The appellant appeals his conviction for
    fourteen sexual offences involving eight different complainants.  The charges arise out of the appellants work
    as a residential counsellor at various group homes for persons with special
    needs.  The case is unusual.  There were never any complaints of wrongdoing
    against the appellant in the various group homes where he worked. The victims,
    who were developmentally handicapped, were largely unable to communicate and
    did not testify at the trial.  Rather,
    the Crowns case depended upon a statement that the appellant gave to the
    police, after he contacted them.  The
    appellant, who was 33 years of age at the time he gave this statement, was
    suffering from clinical depression.  The
    principal ground of appeal is an attack on the trial judges decision to admit
    the appellants statement to the police in light of the appellants mental
    condition.  The appellant submits that
    the trial judge erred in failing to find that the appellants right to counsel
    under s. 10(b) of the
Charter of Rights
    and Freedoms
was violated.

[2]

The Crowns case consisted of the
    statement and the evidence of the appellants employment history, which was
    consistent with the extensive detail of the sexual assaults laid out by the
    appellant in the statement.  In the
    statement, he described how he had perpetrated sexual assaults against specific
    individuals over the two-year period between 1997 and 1999. The appellant testified
    and denied that the content of his statement was true.  He claimed that his statement was a function
    of his mental illness, voices telling him that he should confess to crimes he
    did not commit because he was deserving of punishment for them and should be
    sent to jail to be killed.  The appellant
    raises other grounds of appeal concerning the charge to the jury and also
    submits that the verdicts should be set aside because trial Crown counsel
    engaged in impermissible jury vetting.  We did not call on the Crown to respond to this latter ground of
    appeal.  Cases from this court, in
    particular,
R. v.
Emms

(2010), 104 O.R. (3d) 201 (C.A.), leave to appeal to the S.C.C. granted,
    [2011] S.C.C.A. No. 52, are dispositive of the issue against the appellant on the
    facts of his case.

[3]

For the following reasons, I would dismiss
    the appeal.

THE FACTS

[4]

The appellant is hearing impaired and
    reads lips when not assisted with a hearing aid.  There is no suggestion that his hearing
    impairment posed any problem for the appellant during the police
    interview.  After graduating from
    college, the appellant was employed at several care facilities.  He also began a common law relationship with
    Tara Letcher.  Over the next decade the
    appellant began to experience mood swings.  In January 2000, the appellant met with his family physician, Dr.
    Murphy, who diagnosed his mental health problems as arising from bipolar
    disorder.  Initially, the appellants
    condition responded to medication, such as Lithium, but by the spring of 2003, his
    condition deteriorated and he had entered the manic phase.  He stopped taking his medication in June
    2003.  He developed ideas of
    grandeur.  He left Ms. Letcher and moved
    in with his sister.  Although the appellant
    had not played hardball for almost 20 years, he believed that he could
    successfully pursue a career as a professional baseball player.  By August 2003, the appellants illness had
    switched to the depression phase.

[5]

On September 3, 2003, the appellant saw
    Dr. Murphy and reported disjointed thoughts and suicidal thoughts.  He agreed to restart his medications.  By September 9, 2003, the appellants symptoms
    persisted and he had become more reclusive.  At Dr. Murphys recommendation, he voluntarily entered the
    psychiatric unit of Soldiers Memorial Hospital for treatment, which included
    medication, group therapy, recreational programming and community passes. The
    appellant was of the view that he was not responding to the medication and his
    mood was unchanged.  However, neither Dr. Murphy
    nor any member of the health care team saw any evidence of any psychosis or any
    report from the appellant that he was experiencing hallucinations or hearing
    voices.

[6]

On October 1, 2003, the appellant called
    the police from the hospital and said that he wanted to confess to sexual
    offences that he had committed in the past.  Two police officers came to the hospital at 10:45 a.m.  One of the officers, Detective Constable
    Baskey, telephoned Dr. Murphy and asked if removing the appellant from the
    hospital would risk his physical well-being.  Dr. Murphy assured the officer that the appellant was of sound mind
    and suffered from bipolar disorder.  She
    also testified that she saw no reason why the appellant, who was a voluntary
    patient, should not be allowed to go with the police whom he had called.  The appellant was brought to the nursing
    station and confirmed that he had called the police and he agreed to go to the
    station for an interview.  He was then
    taken to the police cruiser where he was informed of his right to counsel.  He agreed that he understood his rights and
    when asked if he wanted to call a lawyer now, said:  Not right now.  He was then taken to the police station and
    after smoking a cigarette outside the station was taken to an interview
    room.  The interview began at 11:07
    a.m.  The appellant explained that he had
    been a voluntary patient at the hospital.  The interview continued as follows:

BASKEY: Um now Im gonna read a couple of things to
    you. Ive already read them to you once but Im gonna go over them again.

APPELLANT: Okay

BASKEY:      Alright.
    Ah its my duty to inform you that you have the right to obtain and instruct
    [counsel] without delay. You have the right to telephone any lawyer you wish.
    You also have the right to free advice from a Legal Aid Lawyer. If you are
    charged with an offence you may apply to the Ontario Legal Aid Plan for legal
    assistance. 1-800-265-0451 is a toll free number that will put you in contact
    with Legal Aid Duty [Counsel] Lawyer for free legal advice right now, do you understand?

APPELLANT:
Mm
    huh

BASKEY: Ah do you wish to call a lawyer now?

APPELLANT:
Ah
    I dont know.

BASKEY: Okay. Um but you do understand this [is] a,
    a phone number for free legal advice?

APPELLANT:
Mm
    huh

BASKEY: And that well provide you with an opportunity
    to call that number, you do understand that right?

APPELLANT:
Right

BASKEY: Um do you wish to say anything in an, now
    youre not charged with anything right now. Um do you wish to say anything ah
    youre not obliged to say anything unless you wish to do so but whatever you
    say may be given in evidence do you understand that?

APPELLANT:
Mm
    huh

BASKEY: Were recording this and that we can use it
    as evidence?

APPELLANT:
Okay

BASKEY: Okay. So what Ill do is Ill, Ill get you
    to um, ah just tell me a little bit about yourself and tell me why you called
    today. Okay? [Emphasis added.]

[7]

Detective Constable Baskey continued with
    the interview, beginning with background information but ultimately turning to
    the question of the sexual assaults.  The
    appellant stated that he had sexually assaulted a number of patients who were
    in his care.  He gave details of the
    assaults and identified a number of the victims by their first name or their
    bedroom location and gave particulars of the facilities where the assaults took
    place.

[8]

The appellant testified on the
voir dire
to determine the admissibility
    of the statement.  He explained that,
    prior to October 1, 2003, he had begun to hear voices, like a tape-recorder,
    telling him that he was a bad guy that had committed sexual offences and that
    he should be punished for them and sent to jail where he would be killed.  While the appellant did not tell any of the
    medical staff about these voices before October 1, he did tell Ms. Letcher and
    her mother.  Ms. Letcher, in turn, told
    her friend Shayne Jose about what the appellant had said about the voices.

[9]

The appellant testified and attempted to
    explain what he meant in his answers to Detective Constable Baskey set out
    above.  He said that he did not fully
    understand what the officer was saying to him but was saying Mm huh to be
    agreeable.  He claimed that while he
    understood he could call a free lawyer, he did not know how to do so.  He said I dont know because he was confused
    and nervous.  He was trying to think
    about whether or not he should have a lawyer.  He testified that he did not ask the police to stop the interview.  He explained his position that he was being
    controlled by  by the voice in my head to continue  continue on with  with
    the interview.

[10]

Both the Crown and defence called psychiatrists to
    testify about the appellants mental state at the time he gave the
    statement.  While the experts agreed that
    the appellant suffered from bipolar mood disorder and that he was in a
    depressed state at the time, they differed on the severity of the
    depression.  The defence expert
    considered that the appellant was severely depressed.  In his view, while the appellant understood
    what the officer was telling him, he would have difficulty comprehending or
    processing the information in a rapid manner.

[11]

The Crown expert gave the opinion that the appellant
    had the capacity to understand his right to counsel.  While the appellant may have been in a severe
    depressive state when first admitted, in her opinion, by the time he gave the
    statement his depression was moderate.

[12]

At the conclusion of the
voir dire
, the trial judge admitted the statement.  I will summarize the trial judges reasons
    below.

The Trial Evidence

[13]

The Crowns case depended upon the appellants
    statement being truthful.  In the
    statement, the appellant described his employment history in detail and spoke
    about 10 to 15 acts of intercourse with residents of group homes who were
    profoundly disabled and unable to consent.    He described anal and attempted
    anal intercourse of some victims and genital touching of others, as well as his
    use of condoms to prevent detection. The appellant sketched a diagram of the
    three residences where he had worked and attempted to identify the occupants by
    sex or name.  With this information, the
    police were able to identify the alleged victims.  The victims were not called as witnesses.

[14]

The defence was a denial that the content of the statement
    was true.  The appellant claimed that it
    was a product of his illness: voices telling him that he had committed sexual
    offences that he must be punished and that he would be killed in jail.  At the time he gave the statement, he
    believed it was true.  As a result of
    further therapy, he now realized that the statement was not true.  Prior to his arrest, the appellant had not
    told any health professionals about hearing voices.  However, he testified that on September 25,
    2003 he told Ms.
Letcher
about hearing voices.  On September 29, 2003, the appellant told
    Ms.
Letchers
mother, Marilyn Dobson, that maybe
    he should go to jail so someone could kill him.  Ms. Letchers best friend, Shayne Jose, testified that Ms. Letcher told
    her that the appellant told her he was hearing voices like a tape-recording in
    his head playing over and over.  Although
    she had many conversations with Ms. Letcher about the appellants case both
    before and after he was arrested, Ms. Jose believed that she was told about the
    voices before the appellant was arrested.

[15]

Crown counsel cross-examined Ms. Letcher on the fact
    that she and the appellant had launched a lawsuit against Dr. Murphy and the
    hospital for half a million dollars.  Ms.
    Letcher believed that the success of the lawsuit depended on proving that the
    appellant should not have been released to the police and allowed to confess to
    things he did not do.  Mrs. Dobson was
    cross-examined along similar lines: that she had assumed responsibility for the
    appellants care and had also been in touch with a lawyer about a lawsuit.  In a letter of October 5, 2003 to the
    psychologist at the jail written four days after the appellants arrest and
    before the appellants recantation, Mrs. Dobson suggested that the appellant
    should be remanded for psychiatric examination, that the appellant was hearing
    voices and that the confession may have been a false story.

[16]

The experts who testified at the
voir dire
also testified at the trial, and gave similar
    evidence.  The defence expert, who
    arrived at his initial opinion without viewing the videotape of the appellants
    statement, testified that the auditory hallucinations reported by the appellant
    requiring him to confess were consistent with the severe guilt experienced by
    someone in a severe depression.  The
    Crown expert, who had viewed the videotape, disagreed.  She was of the view that the appellants depression
    was moderate and that there were no clinical records to support the proposition
    that he was experiencing auditory hallucinations or severe depression at the
    time he gave his statement.  She was of
    the opinion that the appellants position of a false confession was belied by
    his detailed description of the numerous sexual abuses he said he had committed.

THE ISSUES

[17]

The appellant raises the following issues:

·

Did the Crowns vetting of the jury list affect
    the validity of the trial?

·

Did the trial judge err in admitting the
    appellants statement because of violation of his right to counsel because:

o

The police did not give the appellant sufficient
    time to consider whether to exercise his right to counsel.

o

When the appellant gave the equivocal
    answer:  Ah I dont know, were the
    police required to obtain a clear waiver that he did not wish to consult
    counsel.

·

If there was a violation of s. 10(b) of the
Charter,
should the statement be
    excluded under s. 24(2)?

·

Did the trial judge err in his directions to the
    jury concerning the expert evidence?

·

Did the trial judge err in failing to correct
    Crown counsels assertion that Ms. Letcher and Mrs. Dobson had a motive to
    lie about the auditory hallucinations, and did the trial judge err in failing
    to refer to Ms. Joses evidence?

ANALYSIS

Jury Vetting

[18]

As I indicated, we did not call on the Crown to respond
    to this ground of appeal.  The proposed
    fresh evidence as to information that police officers may have passed on to
    Crown counsel for use in the jury selection was of a highly uncertain
    nature.  In addition, the circumstances
    of the case very much resembled the facts in
R. v. Emms
, in which this court found no basis for overturning a
    jurys verdict.  Accordingly, I would not
    give effect to this ground of appeal.

Right to Counsel

[19]

Apparently because of the manner in which the case was
    argued before him, the trial judges focus on the right to counsel issue was
    whether the appellant had a reasonable time to consider whether he should
    exercise his right to counsel.  The trial
    judge found that the appellant did have an adequate time to decide.  In coming to that conclusion, the trial judge
    took into account that the appellant had time to consider his position.  He was first read his right to counsel in the
    police car on the way to the detachment and given his right again at the
    detachment.  The appellant had
    approximately twelve minutes between the first and second cautions to consider
    his right to counsel and make a decision whether to exercise that right.  The twelve minutes included opportunities for
    the appellant to consider his position while he was having a cigarette outside
    the detachment and the five minutes he had in the interview room before his
    statement was taken.    As well, the trial judge considered that the
    interview began with open-ended questions that were not immediately focused on
    the crimes to which the appellant wished to confess.  In addition, after being given his right to
    counsel, the appellant was not immediately confronted in a manner that would
    have inhibited him from exercising the right to counsel.  The trial judge had the advantage of a video
    of the entire interview in the police detachment.  He concluded: I find that the twelve or so minutes between the first reading of his
    right to counsel and caution to the beginning of the interview gave a person of
    his education, admittedly depressed at the time, sufficient time to ask for
    counsel.

[20]

I am not satisfied that the appellant has shown that
    the trial judges conclusion was unreasonable.  I would therefore not interfere with the trial judges decision that the
    appellant had a reasonable opportunity to decide whether or not to exercise his
    right to counsel.

[21]

On appeal, counsel for the appellant, who was not trial
    counsel, advances a slightly different argument.  Mr. Breen submits that the appellants
    equivocal response, I dont know, required the police to obtain a clear
    waiver from the appellant.  The appellant
    submits that the circumstances known to the police compel this result.  The most important circumstance, of course,
    was that the appellant was suffering from depression and, albeit at his own
    request, had been removed from a psychiatric facility.

[22]

The Supreme Court of Canada has set out a framework for
    analysis of s. 10(b) claims in any number of cases, most recently in the
Sinclair
trilogy:
R. v.
    Sinclair,
[2010] 2 S.C.R. 310;
R. v. Willier
,
    [2010] 2 S.C.R. 429; and
R. v. McCrimmon
,
    [2010] 2 S.C.R. 402.  This line of cases
    identifies two components of the right to counsel protected by s. 10(b).  First, is the informational component; the
    cases establish what the police must tell the detainee about his right to
    consult counsel.  No complaint is made
    about the police compliance with this first component.  The investigating officer informed the
    appellant twice about his right to consult counsel immediately and of the
    availability of duty counsel for that purpose.

[23]

The second component of the s. 10(b) right to counsel
    is the implementation component.  This
    second component requires that the police give the detainee an opportunity to
    exercise his right to counsel.  The
    courts have held that this second component implies that there is a duty on the
    police to hold off questioning until the detainee has had a reasonable
    opportunity to consult with counsel.  It
    was this aspect of the right that apparently was the focus of the argument
    before the trial judge.  As I have said,
    the trial judge found against the appellant on that issue and that finding was
    open to him on the evidence.  I would not
    interfere with that decision.

[24]

The appellant submits that the second component also
    implies that in some circumstances the police must ensure that the detainee has
    actually waived his right to counsel.  This
    may require that the police provide the detainee with further information.  One circumstance where the police may be
    required to provide the detainee with further information is where the detainee
    initially invokes his right to counsel but, having been unsuccessful in
    obtaining legal advice, abandons the attempt.  In such circumstances, the police must not only inform the detainee of
    the right to consult counsel again, but of the police obligation to hold off in
    their questioning until the detainee has had a reasonable opportunity to
    consult counsel.  See
R. v. Willier
at paras. 31 and 32 and
R. v. Prosper
, [1994] 3 S.C.R. 236, at p.
    274.  More generally, in
Sinclair
, the court clarified the
    circumstances in which a detainee is entitled to a second opportunity to
    consult counsel.  While the categories
    are not closed, the three circumstances identified in
Sinclair
are: (1) where the police seek to resort to non-routine
    procedures involving the detainee, such as asking the detainee to participate
    in a line-up; (2) there has been a change in jeopardy because the investigation
    has taken a new and more serious turn as events unfold; and (3) as events
    proceed, there is reason to question the detainees understanding of the right
    to consult counsel.

[25]

In this case, the appellants response to the second caution
    was simply, Ah, I dont know. If that phrase constituted a positive
    indication of uncertainty as to the content of the right to counsel, the police
    would be obliged to provide the appellant with further and better
    information.  As the court said in
R. v. Willier
at para. 31, should a
    detainee positively indicate that he or she does not understand his or her
    right to counsel, the police cannot rely on a mechanical recitation of that
    right and must facilitate that understanding.  However, that is not this case.  In
    this case, Ah, I dont know was not an expression of uncertainty about the
    content of the right, which the appellant admitted he understood.  Nor was it an invocation of the right to
    counsel and, by itself, would not trigger an obligation on the police to obtain
    a clear waiver.  After the appellant said
    Ah, I dont know, Constable Baskey confirmed with the appellant that he
    understood his rights:

Baskey: Okay.  Um but you do understand that this a, a phone number for free legal
    advice?

Appellant: Mm hum

Baskey: And that well provide you with an
    opportunity to call that number, you do understand that right?

Appellant: Right

[26]

Even taking into account the appellants psychiatric
    condition as was appropriate, there is nothing to indicate that the appellant
    did not understand that he had the right to immediately consult counsel, if he
    wished to do so.  There is no aspect of
    the interview that indicates that the appellant did not understand his right to
    counsel or that he was in any way deprived of the opportunity to exercise that
    right had he chosen to do so.

[27]

The issue then is whether having regard to the broader
    context in which this interchange took place, the police were required to go
    further and obtain a clearer waiver from the appellant. One example of the
    circumstances where the police may be required to go further is where the
    detainee was informed of his rights at a time when he may have been uncertain
    of the jeopardy he faced.

[28]

This is not a case such as
R. v. Small
(1998), 123 C.C.C. (3d) 560 (
Alta.C.A
.),
    upon which the appellant relied. In that case, when the accused was first
    detained, he was simply told that he was being detained for sexual
    assault.  The officer testified that
    while the accused waived his right to counsel, he seemed bewildered.  It was only as the interview progressed and
    the accused realized that the investigation concerned his encounter with a
    woman the night before that the accused seemed to understand the basis for the
    interview.  At this point, the accused asked
    the officer if he should telephone a lawyer.  In those circumstances, the Court of Appeal found, at p. 570, that the
    officer should have obtained a clear waiver:

The question posed by the appellant to the police
    officer, i.e., "[d]o you think I should phone a lawyer?", was either
    a request for an opportunity to contact counsel or, at least ambiguous as to
    whether or not the Appellant wished to exercise his s. 10(b) right. The police
    officer responded that "maybe he should [contact a lawyer] due to the fact
    that it was a serious offence". In our view, in the face of the
    Appellant's question, the police officer was obliged to pursue the issue
    further and to either obtain a clear and unequivocal waiver or afford the
    Appellant a reasonable opportunity to exercise his right to counsel. He did
    neither. Instead he proceeded to obtain the statement.

[29]

Small
falls
    within one or two of the categories identified in
Sinclair
for when a detainee is entitled to a further opportunity
    to consult with counsel; namely, a change in jeopardy or where there is reason
    to doubt the detainees understanding of the right to consult counsel.  This case is different than
Small
.  Whereas, in
Small
, it was the
    detainee who was unsure of the nature of the allegations when he expressed uncertainty
    about whether to contact counsel, in this case, it was the detainee and not the
    police who had the exclusive knowledge and control over the information about
    the abuse he alleged that he committed.  It was the appellant who contacted the police.

[30]

In another case, a particular detainees mental illness
    could be a very important factor, that might well lead to a finding that the
    detainee did not understand the right to consult counsel.  However, in this case the appellant was a
    voluntary patient at the hospital and his treating physician was of the opinion
    that it was appropriate that he be allowed to participate in the police
    interview that he sought.    Moreover, the appellant understood his right
    to counsel and appreciated that he could have exercised that right.  He had adequate opportunity to consider
    whether he would do so.  In the face of
    the appellants statement that he did not know whether to consult counsel,
    Detective Constable
Baskey
reiterated in plain
    language that the appellant could have immediate access to free legal
    advice.  Given these circumstances, in my
    view, the police were not required to do more than Detective Constable Baskey
    did.  Since the appellant has not
    established that his s. 10(b) rights were violated, it is unnecessary to
    consider the application of s. 24(2) of the
Charter
.

Instructions on the Expert Evidence

[31]

The expert evidence adduced by the parties was an
    important aspect of this case.  The
    appellant relied upon the evidence of his expert to bolster his claim that his
    statement was false and a product of his mental illness.  The appellant complains about these
    directions that the trial judge gave the jury concerning expert evidence:

You
    must also consider the facts relied upon and the opinion itself.  You must ask whether the opinion of the
    expert is based on certain assumed facts.  You will decide the facts that are the basis of the expert opinion which
    have been established.  If you find that
    none of the supporting facts have been established then the opinion is worthless
    as not being based upon accepted facts.

If
    you find that only some of the supporting facts are proven then you will give
    to the opinion the weight that you feel it deserves.  If, in your opinion, the expert is qualified
    in the field and the facts upon which he bases his opinion or her opinion, are
    established, then you should not reject the opinion unless you feel that you
    have a good reason to do so.  The
    experts opinion may be rejected entirely if you find it to be unreasonable.

[32]

The appellant submits that the effect of this
    instruction was to require the appellant to establish the facts upon which the
    opinion was based before the opinion could be given any weight.  He submits that where the opinion is based upon
    the appellants testimony such an instruction is inconsistent with the
    presumption of innocence.  The appellant
    takes particular exception to the instruction: 
If you find that none
    of the supporting facts have been established then the opinion is worthless as
    not being based upon accepted facts.  The appellant submits that an opinion favouring an accused can be
    dismissed as worthless only where the factual foundation of the opinion is
    rejected.

[33]

I would not give effect to this ground of appeal.  The trial judges instructions were in accordance
    with authorities from this court and the Supreme Court of Canada.  See for example:
R. v.
    Davey
(2010), 103 O.R. (3d) 161 (C.A.), leave to appeal granted, [2011]
    S.C.C.A. No. 148;
R. v. Abbey
, [1982]
    2 S.C.R. 24;
R. v. Lavallee
, [1990] 1
    S.C.R. 852; and
R. v. Kirkby
, (1985),
    21 C.C.C. (3d) 31 (Ont. C.A.), leave to appeal dismissed (1986), 18 O.A.C. 160
    (S.C.C.).  Further, there is no substance
    to the appellants submission that the jury could reject the expert opinion as
    worthless. The trial judge told the jury that the opinion could rejected as
    worthless only if none of the supporting facts had been established.  That was manifestly not a concern in this
    case.  Many of the underlying facts, such
    as the appellants underlying mental illness and that he was suffering from
    depression were not in dispute.

Instructions
    on the Defence Witnesses Motive to Lie

[34]

The appellant submits that the trial judge erred in
    instructing the jury that the appellants witnesses, especially Ms. Letcher and
    Ms. Dobson, had a motive to lie.  In
    reviewing the defence evidence, the trial judge referred to the fact that Ms.
    Letcher had launched a civil action against the hospital and Dr. Murphy and
    that it was the Crowns position that this civil action might be a motive for
    them to give an untrue version of the facts.  In my view, this position was one that was available on the facts.  Ms. Letcher testified that she believed that
    the success of the lawsuit turned on whether the appellant was convicted.  It was beside the point that this belief may
    have been inaccurate; the fact that she believed it, was a basis for Crown
    counsels submission.  It was also open
    to Crown counsel to make the submission that the appellants evidence was
    concocted.

[35]

Finally, the appellant submits that the trial judge
    erred in failing to specifically refer to the evidence of Ms. Jose.  She testified that some time after September
    25, 2003, presumably before the appellant confessed, Ms. Letcher told her that
    the appellant told her that he was hearing voices.

[36]

It will be unusual for a conviction to be set aside,
    where the charge to the jury is otherwise unobjectionable, because the trial
    judge has failed to refer to a single piece of evidence.  The trial judges duty is well established
    and, for example, was described by Spence J. in
R. v. Colpitts
, [1965] S.C.R. 739, at p. 752, as requiring the
    trial judge to not only outline the theory of the defence but to give to the
    jury matters of evidence essential in arriving at a just conclusion in
    reference to that defence.

[37]

In my view, Ms. Joses evidence did not fall within
    this principle.  Her evidence was
    third-hand hearsay, a report of what Ms. Letcher told her about what the
    appellant told her at some unspecified time, albeit probably prior to the confession.  Defence counsel at trial, not Mr. Breen, did
    not raise any objection to the trial judges review of the evidence and did not
    ask that the trial judge to refer to Ms. Joses evidence.  It is apparent that Ms. Jose was closely allied
    with Ms. Letcher.  Her evidence was not
    so pivotal to the defence case that the trial judges failure to refer to it
    resulted in a miscarriage of justice.  I
    would not give effect to this ground of appeal.

DISPOSITION

[38]

Accordingly, I would dismiss the appeal from conviction.

Signed:           M.
    Rosenberg J.A.

I
    agree S. E. Lang J.A.

I
    agree David Watt J.A.

RELEASED:  MR August
    10, 2011


