As the Laura Babcock pre-trial proceedings and the trial itself progressed, a strange, almost paternalistic, dynamic developed between Dellen Millard and the judge, Michael Code, who has a reputation for being a stern taskmaster who does not tolerate fools gladly. This excerpt from the newly released paperback version of Dark Ambition looks at the relationship
Watching the interactions between the judge and Dellen Millard, who was defending himself, it was hard not to wonder if this was the first time Millard had ever had boundaries imposed by a parental figure. Code not only had to rule on the many legal matters raised by Millard, he also had to deal with the defendant’s various problems at the jail. Early on, Millard asked the judge to intervene to ensure that he had access to disclosure of the evidence against him and could prepare properly for motions and trial. Later, he complained that corrections officials wouldn’t allow him to transport hair gel and a comb to the courthouse. As the trial itself got underway, Millard reported that the prison transport van was often late, impeding his trial preparation. On one occasion, he claimed that a lockdown at the jail had left him unable to shower.
Code responded that he showered and shaved in five minutes so he was sure Millard could accomplish that too. He also warned Millard about exaggerating the delays in wagon waits, telling him he had heard from court security that Millard had finished court at 5 p.m. and been in a transport van at 5:40. Later, when officials decided it would make their lives easier to transport Millard in a squad car for the duration of the trial, Code drily congratulated him on acquiring chauffeur service.
Regarding legal matters, the judge urged Millard to focus on his cross-examinations, to get to the point with witnesses, and to stop wasting time on useless motions. When Millard tried to re-open the cross-examination of Shawn Lerner during the first week of trial, Code told him sharply, “Your application’s dismissed, Mr. Millard. It’s got no merit. You’re making very bad decisions about where your priorities are lying.” Not long after, however, he complimented Millard on his cross-examinations, describing some of them as “quite able.”
Millard’s technique did indeed improve after his shocking opening cross-examination of Clayton Babcock, who was clearly uncomfortable being questioned by Jill Cameron about his daughter’s mental health. Clayton said he knew Laura had been seeing a psychiatrist and behaving erratically, but that he also believed she might have been dramatizing the severity of her situation. He was far more at ease in the witness box while talking about happier times, such as when Laura beat the entire family at video games, when father and daughter listened to the Sex Pistols and David Bowie together, and when Laura talked him into watching “Say Yes to the Dress” on TV. “Even to the end, when she wasn’t quite herself, we would talk. She would never be gone any length of time,” he said, explaining that panic didn’t set in until after Laura had been gone for a week.
It took only a few minutes, however, before one of Millard’s questions landed him in trouble with Justice Code. When he asked Clayton Babcock why he was in the witness box and not Laura’s mother, Linda—hinting that it was likely related to Linda’s decision to change the locks at their house and limit Laura’s access to her home—Code reminded Millard brusquely that the Crown gets to choose its witnesses. Millard then proceeded to ramble from topic to topic, asking about the nature of the relationship between Clayton and his daughter, how many times she had been hospitalized for mental-health issues, and whether her personality changed during 2012.
His questions seemed intent on demonstrating that Babcock was not an attentive father, which caused the atmosphere in the courtroom to become increasingly tense. But Millard, apparently oblivious to the negative effect he was having, didn’t let up. He asked if Clayton had ever hit or abused Laura, to which the witness replied no, that he rarely raised his voice. Millard wondered aloud whether Laura had ever told her father that she had started using the surname Ryan instead of Babcock, because of her difficult relationship with him. No, untrue, he answered. “She wanted to get into the movie business. She thought Ryan, which was her mother’s maiden name, sounded prettier.”
It was unclear whether Millard was trying to humiliate Babcock or thought, mistakenly, that he was doing what tough defence lawyers do. Near the end of his testimony, when Babcock failed to recall certain dates, Millard patronizingly told him, “You’ve actually done very well.” It was a comment that caused spectators in the courtroom to look at each other in disbelief. Opening day of Dellen Millard’s murder trial was proving the adage that a man who is his own lawyer has a fool for a client.
As the trial progressed, however, Millard’s skills as a lawyer improved. He made Jeff W., the film producer who had invited Laura to stay at his place, look suspicious by suggesting that he was lying when he said he hadn’t had sex with Laura. In questioning the confused and hapless Brad D., who had been the source of the rumour that Laura had been spotted in Yorkville days after her disappearance, Millard effectively tripped him up. And from the bank witness who explained Laura’s various accounts, Millard elicited the information that Babcock had stopped using her credit card several days before she went missing. Not only did he earn occasional praise from the judge, he also received backhanded compliments from the press. “He may not wear the robes—a charcoal jacket and jeans will have to suffice—but he’s certainly assumed all the mannerisms and posturing of a lawyer,” wrote Toronto Star columnist Rosie DiManno during the second week of trial.
I’ve just read some of the social media commentary on the closing arguments at the trial of Dellen Millard for the murder of his father Wayne, and I can wholeheartedly say it does not, in my opinion, reflect what happened in court today.
Lead Crown Attorney Jill Cameron did a fabulous job. It was a closing that could have been used for a jury trial. It put everything in context and clearly explained how Dellen Millard had the means, motive and opportunity to kill his father.
Throughout the trial, which I did not cover in person, I have seen a lot of misconceptions about the Crown’s case. Many people blame the Crown because the Toronto police and coroner did a terrible job. This is just silly.
The other thing people get wrong is to think that because someone is a Crown witness, they must be a kind of cheerleader for the Crown. Again, no. The Crown must work with the evidence and witnesses it has. Prosecutors can’t invent evidence, redo the police investigation, and only call perfect witnesses. The case is what it is.
There were two main points that seemed to interest Justice Maureen Forestell. The first was the financial status of Millardair and Wayne Millard. She noted that no financial records had been entered into evidence to which Cameron responded that other witnesses had provided testimonial evidence about Wayne’s and the company’s finances.
I must say that I too had wondered why no financial evidence was called but then I remembered how complicated finances can be and how much time white collar crime cases suck up trying to prove what money went where. At the Rowbotham hearing called to answer questions about Dellen Millard’s finances, the Crown in charge said its forensic accountants estimated Dellen’s assets at $2 million to (I believe) $8 million but noted that the money was difficult to trace.
The other subject area that provoked questions from the judge was what exactly she could conclude from Dellen’s lies, as Cameron called them, in his police interview. The judge asked Cameron if legally a false statement was different from silence with regard to Millard’s statement to police. Cameron responded that it was a material omission or, in other words, a lie by omission.
At this point, I was reminded of a scene from the movie Denial, where Rachel Weisz, playing the American historian Deborah Lipstadt who is being sued for libel by David Irving, rants to a friend about the bewigged British judge at her trial:
And everyone kept saying,
this is all great,
everything's gonna be fine.
And then suddenly this judge,
this unbelievable character
from Masterpiece Theatre...
Oh, I like Masterpiece
Theatre- I know.
Anyway, at the last minute,
he looked up and he said,
"Well, you know, maybe
Irving actually believes it.
"He's an anti-Semite
and he believes it.
"You can't accuse
someone of lying
"if they genuinely believe
what they're saying."
And that's when I thought,
"I've been suckered."
I stared at this judge
for eight weeks
and I thought
I was looking at wisdom,
but maybe I was just
looking at prejudice.
Read more: https://www.springfieldspringfield.co.uk/movie_script.php?movie=denial
Related to the same issue, there was some more legal back and forth between Cameron and the judge later on about whether Millard’s material omissions were independent evidence of his attempt to divert suspicion. Various legal rulings on the difference between inferring guilt based on the absence of an explanation versus inferring guilt from an accused’s decision not to testify were discussed.
The Crown closed as prosecutors inevitably do, by claiming there was no reasonable doubt as to the defendant’s guilt.
Much to my trepidation, Millard’s lawyer Ravin Pillay began his arguments with reference to some, in my opinion, ridiculous law that I’ve written about before — how there’s a distinction between lies and concocted lies. And no I don’t mean falsehoods and lies, but really truly lies and concocted lies, which is as crazy as it sounds.
There have been a multitude of bad decisions as a result of this non-existent difference and I could easily see another one coming down in this case.
On a more reasonable legal note, Pillay quoted another case, whose name I did not catch, saying that if a reasonable alternative theory exists that must raise reasonable doubt. He went on to argue that suicide was a reasonable alternative theory, which, of course, is one of the questions the judge will ultimately decide.
Pillay then went on to knock down as mcsh of the Crown’s case as he could and finish with a bang. The simplest explanation is the right one, he said. “It was a suicide then and it’s a suicide now.”
Long a depressed recluse with an alcohol problem, Wayne had made a risky business decision that wasn’t panning out. Destitution loomed, said Pillay. “A life of privilege squandered on this monumental mistake, the MRO,” he continued in full closing mode.
You must acquit, he told the judge, as defence lawyers invariably do.
Justice Forestell said, depending on her workload, it’s possible but unlikely she will have a decision by July 19. At the very least she will have an update. The decision may not come down until September as a result of all the different participants’ summer vacations.
Those were the words Christina Noudga wrote in the jottings police seized from her bedroom on the day she was arrested in April 2014. Her notes, or whatever they were, were taken along with the letters Millard wrote to her from jail.
Police were gobsmacked. They couldn’t believe what they had found.
“Everything happens for a reason,” said one officer who worked on the case. It took a year to arrest her, he explained, but what a trove of evidence Noudga stashed over that period.
Millard’s letters and Noudga’s notes first came to light at Noudga’s bail hearing in the summer of 2014, after she had spent just over three months in jail charged as an accessory after the fact in the murder of Tim Bosma. Parts of what she wrote were revealed at the Bosma murder trial, but other parts have remained under wraps due to standard publication bans that prevent the early release of evidence discussed at bail hearings, pre-trial motions, and, in the case of jury trials, sessions where the jury is not in the room.
It was not clear whether Noudga’s musings were rough drafts of letters to Millard or actual letters that he had returned to her or simply notes she wrote for herself.
Her lawyer at the time, Paul Mergler, told the court that “Sweet Serial Killer” was a line from a Lana Del Rey song, which it is indeed.
In her notes, Noudga also made a list of what she believed to be the potentially damning evidence against her boyfriend. One of the more gruesome and still inexplicable things she wrote was “limbs cut off without hesitation.”
When that ugly phrase was read out in court at the bail hearing, a pregnant friend of the Bosmas fled the room in tears.
Yet despite this and other evidence that suggested Noudga knew she was helping Millard get away with murder, the judge at her bail hearing appeared quite sympathetic to her. He opined on how she was a smart young woman who could get back to her studies if released. While the terms of her original bail were strict, they were gradually relaxed. By the time she testified at the Bosma trial, she no longer had to wear her ankle monitor.
Many questions have been raised about why Noudga was never called to testify at the Babcock trial. Online rumours abound that she had cut some kind of secret deal.
Nothing could be further from the truth, which was that no one wanted to put her in the witness box. The Crown felt able to make its case without her and who knows what she would have said if called to testify.
Millard wanted the opportunity to cross examine his former lover, but he wasn’t prepared to call her as a witness himself, which would have left him having to play by the strict rules of direct examination while the Crown got to do an aggressive cross
The deal Noudga made just over a year ago to plead guilty to obstruction of justice is not well understood. Her original lawyer was smart to arrange a judge-alone trial. Middle-aged male judges often go soft on pretty young women. A reporter friend of mine calls this well documented phenomenon “the chick discount.” The more vulgar lawyer term is a “pussy pass.”
At Noudga’s conviction and sentencing, I was taken aback when the judge (not the same one from the bail hearing) announced there wouldn’t have been enough evidence to convict her. Assistant Crown Attorney Craig Fraser had just finished saying it was a strong circumstantial case, the judge had not heard the evidence, and, yet, there, he was comfortably asserting it wouldn’t have been enough to convict and telling Noudga to make nicer friends.
It made the Crown look very smart for making the deal it did. After all who would want to go through weeks of what Fraser called “soul destroying” evidence and testimony for the same result? The Bosma family didn’t.
While Noudga likes to use social media to show herself having a great time, the truth is a little more complex. She cares enough to monitor what people are saying and mock it on her Instagram. There is no indication she feels an ounce of remorse.
She aspires to be a doctor and was admitted to a Polish medical school. At some point, she will probably get married and jump at the chance to change her unusual and distinctive name. Google will not make the connection. She will likely disappear.
Harry Reems, the male lead in Deep Throat and porn star emeritus, sits unnoticed in Gertrude’s. The small crowd of transsexuals, gaudily made-up drag queens and body
builders milling around the pub get all the attention.
A former McGill student working as a receptionist In the hotel In which Reems Is
staying identifies him for the press.
“Do you know who that is?” she asks. “Harry Reems.”
“The Dally has to Interview hlm. I was talking to him earlier. He’ll probably give you an interview If I ask him. “Let me try.”
She hurries across the room to talk to a slim man In jeans and a light blue T-shirt.
The answer is affirmative. Reems has consented to the Interview but not until later
“And do you know what?” the receptionist asks. “He asked me out.”
“Well are you going?” I inquire, hoping for an exclusive story on the date.
“No! But look he’s coming over here.”
She Introduces me to Reems who tells me to meet him on the set later. “The set” for the filming is McTavIsh Street, Peterson Hall and the Union building garage.
The movie, Reems’ first “clean role” is called Squad. Reems plays a get tough vice
squad officer who has just finished tidying up one metropolis and has moved on to clean up another. His title is Chief Maclean. His underlings call him “Mr. Clean”.
In the scene being filmed a gay beach party has just been raided and a bus load of the merry makers are being taken to vice squad headquarters.
Reems, who is not part of the scene, talks about the films. Squad is an all Canadian venture and Reems is the only non-native cast member.
He likes Montreal but finds he’s not as recognized here as he is south of the border.
As for his future In film, Reems hopes to make more “non-adult” movies. A highly
publicized suit against him for his supposed role In the distribution of Deep Throat has
caused him alot of personal anguish and he has no desire to repeat the experience.
The suit, however, has made Reems a household name and something of a folk hero.
He admits, though, that the frequent learlng remarks and off color jokes sometimes get to him.
Reems has had problems with the press: “They always ask the same questions, again and again.
’Do you feel exploited?’ ’How do you keep it up when you’re filming?’
“I wish that just once some one would ask me something really Interesting. Then they
would have a really good story.”
“Well what do you want to be asked,” I inquire. Reems won’t tell. “It’s up to you to figure It out,” he says.
“Alright then, have you kept In touch with Linda Lovelace? Do you know what she’s doing these days?”
Reems hasn’t heard from his notorious Deep Throat co-star ‘but he’s heard through the grapevine that she’s married to a gynecologist in Arizona.
“It’s true,” says Reems. “I’m not kidding.”
A co-star backs him up.
“Yeah I’ve heard the same thing,” he says.”But I heard she was living In Nevada.”
A student In a tennis outfit Interrupts and asks Reems to autograph his racket cover.
“My girlfriend will get a big kick out of It,” he says.
Reems signs the cover “keep on strokin’, love Harry Reems.” Later that evening another student asks for Reems’ John Hancock. He signs “keep It up, Harry Reems.” And when Reems is asked how he likes Montreal he replies: “Montreal, I lust you Montreal.”
After about ten minutes the originally ebullient Reems becomes fed up with the
interview. He’s angry because I don’t know the details of his background and his court trial.
He’s angry because I’m a reporter. “The press sometimes exploit me. But I’ve never felt exploited by any of the films I’ve made,” says Reems.
He retreats Into his furnished van. The interview is over.
In the run-up to the Laura Babcock murder trial, which is supposed to get underway in October, I wanted to take some time to address some of the questions and issues that crop up regularly.
One of the first things people say about this case is, “But there’s no body” to which I usually respond, “Are you one of those people bothered by the fact there’s no body?” because I’m not.
To my mind, if someone disappears, and it’s completely out of character, they’re almost certainly dead. And please be clear here, I’m not talking about the classic “he went out for milk and never came back” scenario, where someone has reasons to want to start a new life. I’m talking about people who would be extremely unlikely to voluntarily disappear based on past behaviour.
I definitely think this is the case for Laura Babcock, who was close to her friends and family, even if she was having going through a rough stage in her relationship with her parents. She was a prolific texter and used social media daily. Her friends say it was very important to her to stay in touch.
By all accounts, Laura was not the type to decamp to Vegas on her own. And when you consider that, after her disappearance in the summer of 2012, that she never again used her bank and health cards, the inescapable conclusion is that she was dead.
I will admit that I find myself quite impatient with people who can’t accept this. I do understand that that most of the time their hope comes from a good place, namely not wanting to believe the worst or that something evil has happened. But in other cases, the motivation for claims that Laura Babcock is alive is far from benign. For reasons of their own, there are people who make it a habit to be contrarian in the most obtuse possible ways.
All that said, there’s no denying it’s way harder for prosecutors to prove murder without a body since a body can provide all sorts of evidence. A big piece of the puzzle is missing when there’s no body.
The special challenges of “no body” cases are the focus of this website called — what else? — www.nobodycases.com — which is run by a former prosecutor, Thomas A. (Tad) DiBiase aka the “No Body” Guy. He took a special interest in the topic when he worked on a no body case. I haven’t read the site, but I’ve heard him interviewed and found his insights very helpful. If you’re curious about how no body cases proceed, you might want to check it out.
Legally conned: Canadian courts wrongly insist there’s a difference between lies and ‘concocted lies’
The Dennis Oland murder verdict was thrown out thanks to an illogical legal theory that’s been sowing confusion in Canada’s courts and undermining jury decisions for decades
It was a murder case that had Maritimers fixated. Dennis Oland, whose wealthy family founded Moosehead brewing, was accused of bludgeoning his father Richard to death in 2011. The trial, which took place in the fall of 2015, was one of New Brunswick’s longest and most expensive. Over the course of three months, 47 witnesses testified, including Oland himself, and 236 exhibits were entered into evidence. The jury deliberated for four days before finding the accused guilty of second degree murder.
“Oh no, oh no,” Dennis Oland wept aloud after he heard the verdict. “Oh God! Oh my God!”
Two months later, he was sentenced to life in prison with no chance of parole for 10 years. He served 10 months before the New Brunswick Court of Appeal overturned the jury’s verdict, ordered a new trial and released Oland on bail in October 2016. For many, the appeals court decision was vindication of what they had argued all along, that Dennis Oland was not guilty, but, for others, it simply confirmed their belief that the wealthy can get away with almost anything including murder. (If you’d like a quick backgrounder on this case, check out the Fifth Estate documentary, Murder in the Family.)
Despite the notoriety of the Oland murder, there’s been next to no public discussion about the legal issue that caused the verdict to be overturned, and which New Brunswick prosecutors have described as a “narrow and contentious point of law.” What’s more, this same issue has been causing problems across the country for decades. Oland was far from the first murder conviction to be quashed for reasons that are not just hard to understand but fundamentally make no sense.
Oland told police he wore a blue blazer
In the case of R. v. Dennis Oland, the supposedly controversial evidence involves the jacket Oland wore on July 6, 2011, the day his father was murdered at his office in Saint John. Oland told police he was wearing a navy blazer, but video from security cameras showed him dressed in a brown Hugo Boss sports jacket, and a witness also testified that he had worn a brown jacket when he visited his father on the day of the murder. Despite the fact that the jacket had already been dry cleaned when it was seized by police, it still had four small bloodstains on it, all of which were eventually tested and found to contain DNA matching Dennis’s father’s profile.
In his instructions to the jury, the trial judge, Jack Walsh, said it was up to the jurors to decide whether Oland’s testimony, in which he explained that he had forgotten what he was wearing the day before, “was an honest mistake or an ‘intentional lie’ that was related to the commission of the offence charged.”
So far, so good. That is the jury’s job. They are supposed to deal with questions of fact like whether or not witnesses are lying, while it is up to the judge to handle questions of law like what evidence to admit or exclude.
What bothered the appeals court judges was what Walsh said next, which is quoted here with the original edits of Chief Justice Ernest Drapeau, who wrote the decision. Walsh told the jury that an “intentionally false statement […] will, in some circumstances, be evidence from which it can be inferred that the [author] is attempting to mislead the police and deflect suspicion away […] because [he or she] actually committed the offence.”
Lies vs. concocted lies: is there a difference?
In non-lawyer speak, that means if the jury thinks Oland lied about which jacket he wore, they can consider his falsehood as part of the evidence of his guilt. Now, although this might seem completely non-controversial and commonsensical to non-lawyers, it provoked the appeal judges to declare a mistrial because Walsh “did not explain to the jurors that, even if they found [Oland’s] erroneous statement was a lie, it had no probative value unless they concluded, on the basis of other evidence independent of that finding, that the lie was fabricated or concocted to conceal his involvement in the murder of his father.”
At this point you’re probably going to have to stop and reread and then reread another time. After that, if you’re anything like me, you’ll have a reaction that is something along the lines of “WTF!? All lies are, by their very nature, concocted.” You will then wonder in astonishment whether this can really be the “serious error of law” over which three high court judges threw out a jury verdict from a three-month long jury trial.
Let’s deal with the latter question first. Since the seventies, courts in Canada have decided that certain types of behaviour, now labelled as “post-offence conduct,” can be, as Justice Drapeau puts it, “easily exaggerated and their occurrence misapplied, particularly by non-jurists.” Translated into regular English this means that, according to this country’s finest legal minds, regular people like the members of the jury, are gravely in danger of jumping to the conclusion that because Dennis Oland lied about his jacket, he must have killed his father. For some unspecified reason, they will likely forget all the other evidence they heard over the three months of trial and pay next to no attention to the judge’s instructions.
To remedy this hypothetically precarious state of affairs and prevent non-jurists from automatically leaping to guilty verdicts in the face of post-offence conduct evidence, Justice Drapeau noted that “the law has developed rules that seek to safeguard against the risk of any prejudicial impact on trial fairness.” Unfortunately for Justice Walsh, he neglected to inform the Oland jury of these convoluted rules. As a result, wrote Drapeau, “his instructions on a key piece of the evidential puzzle are fundamentally flawed” to the point that the verdict must be thrown out and a new trial held.
What follows is the framework Drapeau and his colleagues, Kathleen Quigg and Margaret Larlee, maintain Walsh should have have set out for the jury. Please be warned you will likely need to read it several times:
(1) a false alibi or a lie, without more, is not evidence that can assist the prosecution in establishing guilt;
(2) a false alibi or a lie may constitute incriminating evidence if and only if, in addition to being an intentional falsehood, it was fabricated or concocted by the accused for the purpose of concealing his or her involvement or participation in the offence charged. A fabricated or concocted lie is one that is made up after giving it some thought; as such, it is distinguishable from a spontaneous unreflected or unconsidered lie;
(3) in this context, a finding of fabrication or concoction cannot be made simply because the accused lied; there must be other evidence, independent of that finding upon which the trier of fact can find fabrication or concoction; and
(4) instructions reflecting the foregoing are essential and they must be accompanied by a reference to the independent evidence from which the jury might reasonably infer fabrication or concoction.
A body of law built on a false distinction
This framework was not invented by the three judges of the New Brunswick appeal court but rather has been cobbled together by a whole bunch of judges across the country in over four decades worth of rulings that will make your head spin. Not only have appeals court judges created a classic distinction-without-a-difference legal theory—lies versus concocted lies— they’ve also come up with guidelines for the jury on how to spot this fake distinction, and formulated exactly what type of evidence the jury can use to decide that a lie is concocted as opposed to just a regular, ostensibly non-concocted lie.
In fairness to the courts, it did not go completely unnoticed that this line of thinking had some fundamental problems. In R. v. Coutts — a 1998 decision of the Ontario Court of Appeals, which Drapeau called “one of the leading cases on this subject” — Justice David Doherty addressed the issue. “This distinction between statements which are disbelieved and, therefore, rejected and those which can be found to be concocted and capable of providing circumstantial evidence of guilt cannot be justified as a pure matter of logic,” he wrote. “In many, if not most cases, the inference of concoction flows logically from the disbelief of an accused’s statements or testimony.”
Yet despite acknowledging that there is logically no distinction between these two categories, in his very next sentence, Doherty, who is often described as one of the country’s top jurists, states that this non-existent distinction somehow managed to be “fully justified and, indeed, essential” as laid out in R. v. Mahoney.
In reality, Mahoney’s author, Justice John Brooke, did not provide any enlightenment on how to make this “fully justified” distinction. Rather, he quoted—out of context, I would argue—from R. v. Davison, DeRosie and MacArthur, a passage that he believed stated this distinction exists. Then Brooke built on this to propose a brand new legal test that must be followed as a result.
This “principle,” as Doherty called it, states that before a judge can instruct a jury that a lie can be seen as evidence of possible guilt there must be “extrinsic evidence of fabrication.”
Again, if you are like me, you will ask yourself what exactly this “extrinsic evidence” (also referred to as “independent evidence” in some decisions) might comprise, given that, as Doherty has noted, “the inference of concoction flows logically from the disbelief of an accused’s statements or testimony.” Short of a confession, what is this type of evidence supposed to look like?
This issue also stumped Chief Justice Allan McEachern of the British Columbia Court of Appeal. In R. v. Tessier, a case from 1997, he was one of five judges who tried to clear up some of the convoluted rules being suggested. “I find it exceedingly difficult to understand how it may logically be correct that fabrication can only be proven by direct evidence, and not by inference from believed, independent evidence, yet that is what the cases seem to suggest,” McEachern wrote in his dissenting opinion in Tessier. As for the jury instructions that Brooke had objected to in R. v. Mahoney and which prompted him to come up with the extrinsic evidence requirement, McEachern wrote that the instructions had made “perfect good sense to me, and I suspect, to most jurors.”
Unfortunately good sense was missing in action as appeals court judges kept coming up with more and more complex and confusing rules on how the jury must be instructed. Meanwhile defence lawyers were making hay with the fancy new post-offence conduct law as they enthusiastically appealed dozens of cases based on supposedly faulty jury instructions. In Tessier, like Oland, a conviction for murder was thrown out and a new trial ordered. And there were many more examples across the country.
The Supreme Court weighs in, things get worse
Unsurprisingly, in 2002, the whole boiling hot mess landed in the lap of the Supreme Court in R. v. Hibbert, a case where a real estate agent was a victim of a brutal seemingly random attack at an open house held in 1993. While touring the garage with a male visitor, the woman was struck from behind, beaten, and strangled until she was unconscious. The jury found Hibbert guilty of attempted murder, but the B.C. appeals court quashed the conviction and ordered a new trial saying that the jury had not been properly instructed in the eyewitness identification issues that were crucial to the case. At the second trial, Hibbert was again found guilty and again appealed. His grounds were once again that the judge’s instructions on identification were improper and also the falsehood and fabrication issue that would eventually be raised in Oland.
The B.C. courts dismissed this second appeal, but it was then successfully appealed to the Supreme Court, which threw out Hibbert’s second conviction not on the identification issue but because “the trial judge’s erroneous instructions implied that the jury could find evidence of concoction allowing them to infer that the accused was guilty. This is a serious error that provided the jury with a direct route to guilt,” wrote Justice Louise Arbour. “Despite the circumstantial evidence that points to the accused, it cannot be confidently said that a conviction is a foregone conclusion in the sense that any other reasonable jury would inevitably convict.”
A third trial was ordered.
According to Arbour, the Hibbert judgment was based on “the well‑established position expressed and followed by the courts of appeal …Many have spoken of the need for independent evidence of fabrication above and beyond a finding that the alibi is false.” She noted that that “the only doubt cast on [this position’s] correctness comes from a short sentence in the oral judgment of this Court in R. v. Michaud.”
Arbour, however, declined to specify what form the extrinsic/independent evidence would need to take to allow a jury to accept a false alibi as part of the evidence of guilt. She wrote, “It is unnecessary in this case to determine the nature and scope of evidence necessary to show concoction so as to permit the instructions inviting the inference of consciousness of guilt. Suffice it to say that the cases have consistently pointed out that there must be evidence linking the accused to fabrication and that such evidence cannot emerge from a mere rejection of the alibi tendered. Many have spoken of the need for independent evidence of fabrication above and beyond a finding that the alibi is false.”
Fifteen years later, this lack of direction continues to plague the country’s courts. When the issue came up yet again earlier this year in R. v. Clifford, several intervenors took the chance to ask the supreme court to clarify. They included Canada’s Director of Public Prosecutions (DPP) and the Criminal Lawyers Association (CLA) of Ontario .
In its factum the, the DPP recalled that “the policy that animates the distinction between a disbelieved and a fabricated alibi is the concern that triers of fact will equate disbelief of an accused’s version with guilt and jump automatically from disbelief to guilt.” It did not, however, take any issue with this theory, which has over the years evolved into an article of faith. Nor did the DPP push back even a little bit against the lies and concocted lies distinction without a difference.
Its chief concerns were the lack of clarity as to what evidence is required to show concoction and the dangers of artificially categorizing evidence as to whether it shows disbelief or fabrication. “This is an exercise fraught with difficulties that hardly advances the ultimate goal it is intended to achieve: ensuring that a trier of fact has all probative inculpatory evidence without improperly inferring guilt from disbelief,” the DPP factum stated.
Only in Canada, you say?
It also noted that there is no similar approach taken in either the UK or Australia, and provided a citation from the UK Court of Appeal stating, “It accords with good sense that a lie told by a defendant about a material issue may show that the liar knew that if he told the truth he would be sealing his fate.”
As a solution to the problem Canadian courts have created for themselves, the DPP suggested that “instead of looking for evidence independent from the evidence that discredits the alibi, the focus should be on whether there is evidence of fabrication in addition to that discrediting the alibi. This is a distinction with a difference. (Italics in original)”
Not surprisingly the CLA was of a different mind. While acknowledging that “the essential distinction [between lies and fabricated lies] cannot be explained to jurors in a comprehensible manner,” it was more concerned about the effects of the 2002 case, R. v. O’Connor
In a half-hearted attempt to come to terms with the illogic and confusion that had arisen since R. v. Mahoney, O’Connor proposed, among other things, that juries could “consider evidence of the circumstances in which an accused made an out-of-court statement which is disbelieved as independent evidence to show that the accused fabricated the statement.(Italics mine)”
Muted and limited as this was, it was still an anathema to the CLA, which called O’Connor “a legal innovation, unsupported by any prior authority” while failing to mention that the same criticism could be made of Mahoney, Coutts, Hibbert, etc.
Alas for both the criminal lawyers and the prosecutors, the supreme court dismissed the Clifford appeal in February of this year. “While we appreciate the suggestions of the Intervenors that the law be re-examined, we are not satisfied that such re-examination is warranted in this case, particularly where neither party has asked us to depart from the jurisprudence of this Court,” its judgment said.
As for the Oland case, in July, the supreme court dismissed requests by both the New Brunswick Attorney General and the defence to review the overturning of Oland’s conviction. It did not agree to hear why it should grant the outright acquittal Oland wanted nor was it swayed by prosecutors’ claim that this case was an important example of how, across Canada, the job of the jury is being “usurped” by appellate courts confused about how to deal with false statements and the issue of fabrication.
In their application, New Brunswick prosecutors pointed to R. v. Corbett, a 1988 supreme court decision which stated that “the very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense.”
Dennis Oland’s new trial will likely take place in 2018.
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I am regularly asked for updates on the Laura Babcock murder trial. It is still set for this fall and looks highly unlikely to be postponed as it was already bumped from February of this year
There are pre-trial motions scheduled for August 28th. While the pre-trial motions in this and all other cases are typically subject to a publication ban, the public can attend and they are often very interesting.
And that’s really all I can tell you at this point.