R. v. Hibbert

R. v. Hibbert
Collection
Supreme Court Judgments
Date
2002-04-25
Neutral citation
2002 SCC 39
Report
[2002] 2 SCR 445
Case number
28021
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 28021
Decision Content
R. v. Hibbert, [2002] 2 S.C.R. 445, 2002 SCC 39
Kenneth Roydon Hibbert Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Hibbert
Neutral citation: 2002 SCC 39.
File No.: 28021.
2001: October 10; 2002: April 25.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for british columbia
Criminal law – Evidence – Identification – Alibi – Accused convicted of attempted murder – Trial judge erring in instructing jury that they could infer guilt from disbelieved alibi – Whether Court of Appeal erred in applying curative proviso – Whether Court of Appeal erred in finding no reversible error in trial judge’s instructions on issue of identification — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (b)(iii).
A real estate agent was a victim of a brutal attack while she was holding an open house. In the course of touring the house, a man provided the victim with numerous personal details. The victim took the man into the garage. When she went to plug in a light, the man struck her from behind, beat her, and strangled her until she was unconscious. The Crown’s case against the accused was based largely on circumstantial evidence and essentially rested on the victim’s knowledge of the personal details of the accused’s life; on the in‑court identification of the accused by the victim and a neighbour who saw the assailant leaving the residence; on DNA evidence that linked both the accused and the victim to a cap found hanging in a tree on the assailant’s escape route; and on various other pieces of circumstantial evidence that cumulatively point to the accused as the assailant. In his first trial, the accused was convicted of attempted murder by a jury, but the Court of Appeal set aside the conviction and ordered a new trial. In a second jury trial, the subject of this appeal, the accused was again convicted. He appealed that conviction, again alleging weaknesses in identification evidence and errors in the instructions to the jury about the evidence of identification. In addition, he alleged that the trial judge erred in telling the jury they could infer guilt from a disbelieved alibi when there was no extraneous evidence of fabrication or contrivance. The Crown conceded that the trial judge’s instructions on alibi were in error but the Court of Appeal applied the curative proviso of s. 686(1) (b)(iii) of the Criminal Code and dismissed the appeal.
Held (L’Heureux‑Dubé and Bastarache JJ. dissenting): The appeal should be allowed and a new trial ordered.
Per McLachlin C.J. and Gonthier, Iacobucci, Major, Binnie, Arbour and LeBel JJ.: The trial judge’s directions to the jury on identification evidence were not so deficient as to constitute an error of law. In the circumstances of this case, however, the trial judge should have cautioned the jury more strongly that the identification of the accused in court was highly problematic as direct reliable identification of the perpetrator of the offence. It is important to remember that the danger associated with eyewitness in‑court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it. The instruction to the effect that such identification should be accorded “little weight” does not go far enough to displace the danger that the jury could still give it weight that it does not deserve. In this particular case, it would have been prudent to emphasize for the benefit of the jury the very weak link between the confidence level of a witness and the accuracy of that witness. Moreover, it should also have been stressed that the impact of the victim having seen the accused arrested by the police as her alleged assailant could not be undone. Nor could she be expected to divorce her previous recollection of her assailant from the mental image that she formed after having seen the accused on television.
The Crown properly conceded that the trial judge’s instructions on alibi were in error in the absence of evidence that the accused was implicated in putting forward a fabricated alibi. The law with respect to the rejection of a defence of alibi may be summarized as follows. In the absence of evidence of concoction (deliberate fabrication) an alibi that is disbelieved has no evidentiary value. A disbelieved alibi is insufficient to support an inference of concoction or deliberate fabrication. There must be other evidence from which a reasonable jury could conclude that the alibi was deliberately fabricated and that the accused was involved in that attempt to mislead the jury. It is the attempt to deceive, and not the failed alibi, that supports an inference of consciousness of guilt. In appropriate cases, for instance if there were multiple accused, the jury should be instructed that the fabricated alibi may be used to place the accused at the scene of the crime, but may fall short of directly implicating him in its commission. When there is evidence that an alibi was fabricated, at the instigation or with the knowledge and approval of the accused, that evidence may be used by the jury to support an inference of consciousness of guilt. In cases where such an inference is available, the jury should be instructed that it may, not must, be drawn. A fabricated alibi is not conclusive evidence of guilt.
The curative proviso cannot be used to overcome the erroneous instructions on the defence of alibi in this case. The error was not a trivial error nor one that would be unlikely to have had any effect on the verdict. 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. 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.
Per L’Heureux‑Dubé and Bastarache JJ. (dissenting): The trial judge’s directions to the jury on identification evidence did not constitute an error of law. Moreover, her warning in this regard was adequate. The trial judge’s direction to the jury pointed out the general and specific problems with the identification evidence while at the same time respecting the role of the jury to weigh the evidence that was properly before it. With regard to the in‑court identification of the accused, the trial judge clearly explained to the jury the possibility that the witnesses recognized the accused from their memory of the photographic line‑up or newscast rather than from the scene of the crime. She instructed the jury that for this reason the in‑court identification was entitled to little weight. This instruction was appropriate because it pointed out to the jury the weaknesses associated with the evidence without encroaching on the jury’s essential function as the trier of fact. Whether the victim was able to identify the accused as her assailant, or whether she was merely identifying him as the man she saw being arrested and at previous hearings, was ultimately a question for the jury to answer.
The question to be asked when considering the application of the proviso is whether there is any reasonable possibility that the verdict would have been different had the error at issue not been made. In answering this question, the strength of the Crown’s case, otherwise stated as “the legally admissible evidence untainted by the error”, is one factor to be considered, along with the seriousness of the error in question and the effect it likely had upon the jury’s inference‑drawing process. The Crown’s case was a strong one. More importantly, the trial judge mitigated the seriousness of the error contained in the then standard jury instructions by tailoring the instruction to the particular circumstances of the case. The trial judge instructed the jury that they could draw an inference of guilt if they concluded that the alibi put forward by the accused was false and was put forward to deceive them, an instruction that was erroneous in the absence of independent evidence of fabrication or concoction. She nevertheless went on to remind the jury that the Crown did not suggest concoction or fabrication. The trial judge in effect neutralized the impact of the error by immediately withdrawing it from the jury’s consideration. When the error in the trial judge’s instructions on alibi is considered in the context of the charge as a whole and against the background of the entire trial, it is evident that there was no reasonable possibility that the error would have impacted upon the reasoning process of the jury. Given the trial judge’s charge in its entirety and the circumstances of this particular case, the danger of a miscarriage of justice arising from the trial judge’s misdirection on alibi was more theoretical than real. The test for the application of the proviso is not whether it is in theory possible that the verdict would have been different had the error not be made, but rather whether there is a reasonable possibility that the verdict would have been different taking into account the background of the whole trial. Applying the proviso in the circumstances of this trial even though it was not applied in the first trial creates no inconsistency. Having determined that there was no real possibility that the error in question affected the reasoning process of the jury, it is only logical to conclude that the accused was convicted because the evidence against him was overwhelming.
Cases Cited
By Arbour J.
Referred to: R. v. Tessier (1997), 113 C.C.C. (3d) 538; R. v. Davison (1974), 20 C.C.C. (2d) 424; R. v. Witter (1996), 105 C.C.C. (3d) 44; R. v. Coutts (1998), 16 C.R. (5th) 240, leave to appeal dismissed, [1999] 1 S.C.R. xii; R. v. Krishantharajah (1999), 133 C.C.C. (3d) 157; R. v. Carey (1996), 113 C.C.C. (3d) 74; R. v. Michaud, [1996] 2 S.C.R. 458; R. v. Hibbert (1996), 78 B.C.A.C. 277; Colpitts v. The Queen, [1965] S.C.R. 739; Wildman v. The Queen, [1984] 2 S.C.R. 311; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. Charlebois, [2000] 2 S.C.R. 674, 2000 SCC 53; R. v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86.
By Bastarache J. (dissenting)
Mezzo v. The Queen, [1986] 1 S.C.R. 802; R. v. Turnbull, [1976] 3 All E.R. 549; Canning v. The Queen, [1986] 1 S.C.R. 991; R. v. Gagnon (2000), 136 O.A.C. 116; R. v. Charlebois, [2000] 2 S.C.R. 674, 2000 SCC 53; R. v. Edwardson (1993), 77 B.C.L.R. (2d) 362; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. Jacquard, [1997] 1 S.C.R. 314; R. v. Jolivet, [2000] 1 S.C.R. 751, 2000 SCC 29; R. v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86; Mahoney v. The Queen, [1982] 1 S.C.R. 834; R. v. Tessier (1997), 113 C.C.C. (3d) 538; R. v. Krishantharajah (1999), 133 C.C.C. (3d) 157; R. v. Demeter (1975), 25 C.C.C. (2d) 417; R. v. Hibbert (1996), 78 B.C.A.C. 277.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (b)(iii) [am. 1991, c. 43, s. 9 (Sch., item 8)].
Authors Cited
Cory, Peter deCarteret. The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation. Winnipeg: Manitoba Justice, 2001.
Ferguson, Gerry A., and John C. Bouck. Canadian Criminal Jury Instructions, vol. 2, 2nd ed. Vancouver: Continuing Legal Education Society of British Columbia, 1989 (loose-leaf updated November 1993).
APPEAL from a judgment of the British Columbia Court of Appeal (2000), 134 B.C.A.C. 281, [2000] B.C.J. No. 392 (QL), 2000 BCCA 144, dismissing the accused’s appeal from his conviction for attempted murder. Appeal allowed and new trial ordered, L’Heureux‑Dubé and Bastarache JJ. dissenting.
J. M. Peter Firestone and Catherine Tyhurst, for the appellant.
Kate Ker, for the respondent.
The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Binnie, Arbour and LeBel JJ. was delivered by
Arbour J. —
I. Introduction
1 The appellant appeals his conviction by a jury on a charge of attempted murder. The principal issue in this appeal is the application of s. 686(1) (b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 (the proviso). The Crown concedes that the trial judge erred in her instructions to the jury on the defence of alibi. The question is whether that error, in itself, or combined with other errors alleged by the defence, necessitates a new trial, or whether, as the Court of Appeal found, the Crown’s case was so strong that the jury would inevitably have convicted had the error not been made.
2 In my view, s. 686(1) (b)(iii) cannot be applied in this case to preserve the conviction and the verdict of the jury must be set aside. As is common in these types of cases, the evidence must be reviewed in some detail in order to assess the nature and likely impact of the errors in the charge.
II. Overview
3 On October 24, 1993, Janet McLeod, a real estate agent, was a victim of a brutal attack while she was holding an open house at 151 Campbell Street in Duncan, British Columbia. A man she described as wearing a felt-type English driving hat (described in other evidence as an “Andy Capp” style hat) arrived by himself to visit the house at approximately 3:00 p.m. In the course of touring the house, the man provided Mrs. McLeod with numerous personal details, including that he lived nearby on Trunk Road with his wife and two daughters aged 13 to 15, that he had moved to Duncan from Ontario, and that he was waiting for a military pension to be issued. Mrs. McLeod took the man into the garage to explain how it could be converted into an extra bedroom. When she went to plug in a light, the man struck her from behind, beat her, and strangled her until she was unconscious. Mrs. McLeod was severely beaten with a blunt object swung with tremendous force. The evidence suggested that after the beating, the assailant left the garage to clean himself in the house, and then returned and tied an electrical cord around her neck. She was found in a pool of blood by neighbours who heard the commotion. The attack was vicious and Mrs. McLeod’s injuries were life threatening.
4 The appellant, Mr. Hibbert, was interviewed by the police on the morning of November 3, 1993. He was arrested that same day and a warrant to search his residence was executed. He was released and then arrested a second time on December 14, 1993. He has been in custody since that time.
5 On December 20, 1994, Mr. Hibbert was convicted of attempted murder by a jury in a trial presided by Hutchison J. of the Supreme Court of British Columbia. Mr. Hibbert appealed the conviction on the grounds that the trial judge failed to charge the jury properly on weaknesses in the identification evidence and on the significance of the alibi evidence. The appeal was allowed, and the British Columbia Court of Appeal declined to apply s. 686(1) (b)(iii) of the Criminal Code to cure the error. The court set aside the conviction and ordered a new trial.
6 In a second jury trial before Dorgan J. in March of 1997, Mr. Hibbert was again convicted. He appealed that conviction, again alleging weaknesses in identification evidence and errors in the instructions to the jury about the evidence of identification. In addition, he alleged that the trial judge erred in telling the jury they could infer guilt from a disbelieved alibi when there was no extraneous evidence of fabrication or contrivance. The Crown conceded that the trial judge’s instructions on the latter point were in error but the Court of Appeal applied the curative provision of s. 686(1) (b)(iii) and dismissed the appeal: (2000), 134 B.C.A.C. 281, 2000 BCCA 144. Mr. Hibbert appeals that decision to this Court on the grounds that the Court of Appeal erred in failing to find a reversible error in the trial judge’s charge to the jury on identification, and, having found that there was an error in the alibi jury instruction, in deciding to apply the curative proviso.
III. The Evidence
7 The Crown’s case was largely based on circumstantial evidence. No motive was ever advanced for this unprovoked and sudden attack. In essence, the strength of the Crown’s case rested on the victim’s knowledge of the personal details of the appellant’s life; on the in-court identification of the appellant by Mrs. McLeod and a neighbour who saw the assailant leaving the residence; on DNA evidence that linked both the appellant and the victim to a cap found hanging in a tree on the assailant’s escape route; and on various other pieces of circumstantial evidence that cumulatively point to the appellant as the assailant. However, Mr. Hibbert put forward explanations, some stronger than others, for each piece of evidence presented by the Crown. I will now review this evidence in more detail.
A. Identification Evidence
(1) The Victim — Janet McLeod
8 Mrs. McLeod could barely speak when she arrived at the hospital on the afternoon of October 24th. She related a description of the man who assaulted her and the personal details he shared with her to the attending doctor. A nurse in attendance recorded her description on the hospital record. The description was of a 55-year-old male, five feet eight inches tall, 180 pounds, with grey hair and a grey sweater who told Mrs. McLeod that he had a wife, two girls, lived on or near Trunk Road, came from Ontario, and had a military background. Mrs. McLeod also provided a physical description of her assailant to a constable who came to see her in the treatment room on the afternoon of October 24, 1993. She described her assailant as a 55-year-old Caucasian male without an accent, five feet eight inches tall, 180 pounds with grey hair, bushy eyebrows with some grey in them, a brown felt-type English driving hat, brown sweater with possibly a white shirt underneath, and dark brown pants. Mrs. McLeod also gave a physical description to another constable on October 28, 1993 describing the assailant as a male 55 years or older, five feet eight inches tall, stocky build, round face, wearing a brown “Andy Capp” style hat, large hands and fingers, brown jacket or sweater, with no recollection of whether he had an accent. On October 31, 1993, soon after the bandages were removed from her eyes, Mrs. McLeod and a police sketch artist prepared a composite sketch. She rated the composite a 6 or 7 out of 10 for accuracy.
9 On November 4, 1993, while still in hospital, Mrs. McLeod was shown an eight-person photo line-up which included the appellant. Mr. Hibbert’s photograph was number 7. Mrs. McLeod did not positively identify anyone and she wrote nothing on her ballot sheet. While viewing the line up, she expressed that she thought that she had seen the person in picture number 7 before, and said “I feel like I’ve had a conversation with him”. She also indicated that it might not have been on the day of the attack, and could have been some time before. On the day of the photo line-up, Mrs. McLeod was tired, in a great deal of pain, and under the effects of morphine.
10 At the time of Mr. Hibbert’s second arrest on December 14, 1993, a local news station showed footage of him being escorted by sheriffs into the courthouse in handcuffs.
11 After being alerted by a television news station that there was an arrest in her case, Mrs. McLeod and her husband watched the early evening television news footage which showed Mr. Hibbert at the courthouse in police custody. Mrs. McLeod asked her husband to tape the nightly news segment with the same footage. The next morning they watched the tape together and freeze-framed and studied the shot of Mr. Hibbert under arrest. That same morning, one of the police constables on the case called the McLeods to update them on the status of the case and learned they had seen and taped a news film clip of the arrest. Mrs. McLeod told him they had “got the right man”. The constable came to the McLeods’ house and watched the tape with them. He then seized the tape.
12 Mrs. McLeod identified Mr. Hibbert in court, both at the preliminary hearing and at the first trial, as her assailant. At the second trial, she was asked if she was able to recognize the man who assaulted her as being a person in the courtroom. Crown counsel added: “It’s important for the jury to know, Mrs. McLeod, whether or not you are able to identify your attacker and not someone that you have seen subsequently, do you understand?” Mrs. McLeod identified the appellant.
(2) Witness — Carol Baker
13 Carol Baker lived immediately next door to the open house residence that was the site of the attack. At approximately 3:00 p.m., while outside, she heard a voice calling for help from the direction of the open house and what sounded like thumping on the garage door. She went inside her own house to investigate further by looking from her house window into the garage window at 151 Campbell. She made eye contact with a man in the garage. She testified that he “stared her down”. He went out of sight but she saw him again through the window shortly after. That afternoon, Mrs. Baker provided police with a description of the man she saw, describing him as between five feet eight and five feet ten inches tall, white skinned, approximately fifty-ish years old, of medium build, and wearing a tan “tam-like” hat. Mrs. Baker subsequently referred to the hat as an “Andy Capp” hat after the police officer she was talking to described it as an “Andy Capp” hat. On cross-examination, Mrs. Baker admitted that her estimate of the man’s height was a wild guess since she saw only a portion of his body through the windows.
14 The day after the attack, Mrs. Baker worked with a police sketch artist (a different artist than the one who subsequently worked with Mrs. McLeod) on a head-on and profile composite drawing of the assailant. She assessed the composite sketches as, at best, a 5 out of 10 for accuracy of likeness to the man she saw.
15 On November 4, 1993, Carol Baker was shown the same eight-person photo line-up as Janet McLeod. She noted on the ballot that the appellant’s photograph resembled the person she saw but she could not be positive. While at the photo line-up, Mrs. Baker was asked, “if you saw the person do you think you would be able to recognize him for sure, I mean if you saw a photograph similar to these of the person, would you be able to recognize him?” She replied: “I don’t know if I could or not, I might be able to.”
16 Mrs. Baker also saw the news footage of Mr. Hibbert in handcuffs at the time of his arrest. She positively identified him at the preliminary inquiry, and at the first trial, as the man she saw on the day of the attack. As with Janet McLeod, at the second trial she was specifically asked if she recognized the person she saw that day not as someone she had seen in photographs, on television news, or at any other time, but as the man she saw on the day of the attack. Mrs. Baker stated she recognized the appellant, “I recognize him in the box”.
(3) Witness — Heather Visscher
17 Heather Visscher was walking with her parents along a dyke close to the open house and noted a man, walking a street width away, who she thought was out of place because he seemed “less friendly” than other walkers that day. At one point, the man passed ten feet from her and turned onto Trunk Road. She described the man as being in his fifties, approximately five feet ten inches or five feet eleven inches tall with a broad face, a “good head” of black and greying hair, and bushy eyebrows. She did not recall him as having eyeglasses or any head gear but did state his clothes were wet, consistent with him sweating, and that he had a jacket tied around his waist. She was not certain of the time but set it between 2:30 and 3:30 p.m.
18 When shown the photo line-up, she marked the appellant’s photograph on her ballot as the best likeness of the man and wrote in the comment section: “I came to this conclusion by process of elimination. I am not 100% sure that this is the man I saw, but he most closely resembles the picture I have in my mind of the man I saw that day. The complexion & eyebrows & general shape of his face was what made me think it was him.”
19 At the trial, Ms. Visscher was asked if she thought she would be able to recognize the man she saw on the dyke that day if she saw him again. She responded that she thought so. When asked if she could identify anyone in the courtroom as the man she saw that day she responded that she could not. When defence counsel pointed to Mr. Hibbert in the prisoner’s dock and asked her if that was the person she saw when she was on the dyke, she stated, “I don’t really think so.”
(4) Witness — Bobby Johnson
20 Bobby Johnson lived at 147 Campbell Street and was working on his truck in his driveway when he saw a man running from the vicinity of the open house holding something up against his stomach. He then saw the man jump over a fence. He described the man as six feet tall, 170 to 180 pounds, greyish hair, wearing a tan short-sleeved dress shirt and grey dress pants with reddening on the back of the calves. He put the time at 1:00 to 1:30 p.m. He was not, however, wearing a watch. He could not make an identification at trial.
(5) Position of the Defence on Identification Evidence
21 It was the position of the defence, largely accepted by the courts below, that the identification evidence had very little probative value because it had been contaminated by the news broadcast, but also because of the unreliability of this kind of evidence in general.
22 The defence pointed out that Mr. Hibbert had a noticeable facial scar. No witness ever described a scar on the assailant’s face. Defence counsel sought and got a re-charge by the trial judge reminding the jury that no one mentioned a scar in their descriptions. Furthermore, Mr. Hibbert testified that he regularly wore glasses. His wife testified that he wore them around 75 percent to 98 percent of the time. He was wearing glasses at the time of his arrest. The descriptions of Mrs. McLeod and Mrs. Baker did not mention glasses.
(6) Others Matching the Appellant’s Description
23 Once the police had a composite picture, the picture was distributed widely to local newspapers and to local realtors. There were several dozen tip files created during the course of the investigation. Not one person called the police to say that the appellant matched the composite. Many of the tip files contained information from persons who identified an individual who looked like the composite, or who fit the description, and had just arrived from Ontario. In no case was the appellant identified. A defence witness testified that he had called the RCMP to say that the composite picture was a “dead ringer” for a man he had seen walking on the dyke five or six times over a period of six or seven months up to September 1993. He had conversed with the man who said he was on leave of absence from the dockyard, was with the fire department, and lived in Duncan close to the dyke. According to the witness, the RCMP constable who took his call “didn’t put too much credence in what I was telling him because he said people can look at these composite pictures and see different faces there, and so it was pretty well left at that”.
B. Circumstantial Evidence
24 The Crown’s case rested on a combination of the identification evidence described above and various items of circumstantial evidence linking the appellant to the attack.
(1) Personal Knowledge
25 The investigation which originally led the RCMP to the appellant was based on information that Mrs. McLeod said was communicated to her by her assailant just before the attack. She told the police that the man who attacked her had given her several specific personal details, including that he lived on Trunk Road, that he was retired from the military and waiting for a pension, that he had just moved from Ontario and that he had two daughters aged 13 to 15. At the time of the attack, all of these details were also true of the appellant.
26 However, Mrs. McLeod was asked in examination-in-chief whether she had ever met her assailant before the day of the attack. She said:
Um, excuse me, no, I hadn’t seen him before, but he mentioned to me that he was from Ontario and waiting for his military pension to come in before he could buy something, and I kind of looked at him because I had spoken to this lady on the phone that was from Ontario with her family and they were waiting for some money to come the following year before they could purchase anything. So -- and then they came to an open house that I had. I had a little house open on Marchmount Road, and, um, I just -- when I heard this fellow was from Ontario, I just kind of looked at him again to see if it was the same person that had come to my open house and realized that it wasn’t because the man that I had met from the open house was a very, very small man and this man was quite a bit bigger.
It is therefore clear from her evidence that the personal information from her assailant reminded her of another man she had met a few weeks earlier at another open house who had a similar background. Both Mr. and Mrs. Hibbert testified that they had attended an open house held by Mrs. McLeod on Marchmount Road a few weeks before the attack, and that Mrs. Hibbert had provided the realtor with the information in question about their background.
(2) Shoes
27 Bloody footprints were found at the site of the attack. A police footwear expert gave his opinion that the crime scene shoe impression was similar in gross characteristics, including tread pattern, to the “Venture” running shoe, a brand name of the Zellers department store. The impression at the crime scene was from a size eleven shoe. Mr. Hibbert had owned a pair of black “Venture” brand running shoes purchased at Zellers and had purchased several pairs of Zellers shoes over the years. He wore shoe sizes ranging from size eleven to twelve; his wife testified that he wore size eleven and a half to twelve. At the trial, he wore size twelve shoes. Both Mr. and Mrs. Hibbert testified that his “Venture” running shoes had been thrown away a few weeks before the attack. One of the appellant’s stepdaughters thought the shoes were thrown out shortly after they arrived in Duncan, claiming the “toe was coming off one foot and the heel was coming off the other and they were just ready to go”. The Crown was not able to link the shoe print to any shoe owned by the appellant. The actual footwear that created the specific foot impression at the scene was not discovered during the course of the police investigation.
28 An expert testified at trial that with department store athletic footwear (that is, an economical brand and not a name brand shoe such as Nike or Reebok) foreign manufacturers, primarily in developing countries, make a large quantity of generic soles that are sold and then assembled to the upper part of the shoe by another manufacturing facility which could be in a different country. On cross-examination, the expert noted that he was unable to trace the manufacturer of the sole and could not be sure that this particular sole was not sold as an in-store brand for other companies. Further, unlike the well-known shoe brand companies whose soles are a distinctive part of their branding, with department store shoes such as the “Venture”, the same brand running shoe could change its tread pattern every year.
29 The footprints suggested that someone tripped or lost his balance on the steps leading into the house. Mr. Hibbert stated on cross-examination that he twisted his knee the morning of October 24, 1993.
(3) Bite Marks
30 Mrs. McLeod testified that she bit the assailant “hard” on his hand. Mr. Hibbert had small marks on his hands at the time of his arrest. A dentist called by the Crown was unable to identify those marks as consistent with a bite mark.
(4) DNA
31 On October 24, 1993 an RCMP officer’s tracking dog found a fresh scent on a blue “Andy Capp” style hat in a tree branch, off the dyke, close to the site of the assault. The officer who seized the cap testified that the cap had two small reddish spots that looked like blood spots. On cross-examination, the officer admitted she did not make a note of the two spots of blood when she seized the hat. The hat was forwarded to a forensic lab on November 2, 1993. Forensic analysis of the cap identified two small areas of blood spots on the outside crown area of the hat. The DNA expert testified that in his expert opinion one of the blood spots matched the DNA profile of Mrs. McLeod and the other matched the DNA profile of the appellant.
32 Mr. Hibbert testified that he had owned such a cap. Both he and his wife testified that the hat was thrown out with a box of other discarded old clothes in September 1993 when they were unpacking from the move from Ontario. The cap found in the tree branch near the dyke had a piece of masking tape inside with “25 cents” written on it. Both Mr. and Mrs. Hibbert testified that this sticker was not on the cap when it was discarded.
33 Mr. Hibbert testified that he suffers from a form of dermatitis condition causing dry chapped skin on his hands to open and bleed. He offered that as an explanation for some of the small abrasions on his hands at the time of his arrest, as well as the presence of the small amount of his blood on the hat.
34 In her charge to the jury, Dorgan J. stated that the exhibit officer failed to note either the blood stains or the sticker in her notebook. The defence argued that the exhibit officer was new and had failed to carefully handle the exhibits so that they were subject to contamination, and pointed out that there were mistakes in the log. The defence suggested that the victim’s blood on the hat could have been transferred from other clothing seized by the police at the hospital or from the hands of the investigating officers who handled the evidence.
(5) Hair
35 The cap also had several hairs that a hair comparison expert examined. The hair comparison expert examined six hairs taken from the cap (four hairs and two hair fragments). She testified that one of the hair fragments found in the cap was consistent with having originated from the appellant, with a 5 percent chance of coming from another source. Two hairs were inconsistent with Mr. Hibbert’s and he was eliminated as a source for them. Four hairs were not consistent with having originated from either the appellant or Mrs. McLeod but because of some similarities to the appellant’s hair sample, he could not be eliminated as a source. The cap also contained six non-human hairs indicative of having originated from a member of the dog family and two non-human hairs indicative of having originated from the rabbit family.
C. Crime Scene Evidence
36 No forensic evidence was found at the crime scene at 151 Campbell Street linking the appellant to the location. No forensic evidence was found at Mr. Hibbert’s residence, or on any of his clothes, linking him to Mrs. McLeod and the crime. There was a copious amount of blood at 151 Campbell Street, none of which belonged to Mr. Hibbert. The blood at the crime scene matched Mrs. McLeod’s DNA profile. Blood was on the bathroom tub faucets and spout, door lock and door frame, and there were bloody footsteps from the garage, up the steps and to the laundry. There was blood in the sink traps at 151 Campbell Street consistent with the attacker washing at the scene. The taps were running when the police arrived.
D. Evidence of the Appellant
37 Mr. Hibbert retired as a Master Corporal in 1993, after 26 years of military service. At the time of the attack he was on his unused sick and vacation leave until his pension was to begin in March 1994. He had no criminal record and no military disciplinary record. The Hibberts moved to Duncan from Ottawa (the location of his last posting) in August 1993 and rented a house on Trunk Road. Trunk Road is about a 10-minute walk from the crime scene. The appellant had two teenage stepdaughters. Mr. and Mrs. Hibbert attended a number of open houses in September and October 1993. Both Mr. and Mrs. Hibbert testified that they attended an open house hosted by Janet McLeod in September 1993. As indicated earlier, Mrs. McLeod’s evidence confirms that a couple matching some of the Hibberts’ personal characteristics visited that open house in September.
38 Mr. Hibbert contends that on the morning of October 24, 1993, he drove his wife to a course she was taking and came home. He testified that he was wearing grey slacks, a green golf shirt and hiking boots. In the afternoon, he drove and accompanied his stepdaughters to a cadet flag-raising ceremony. The ceremony started at 1:30 p.m. After the ceremony, Mr. Hibbert waited while the cadets mingled and talked. He accompanied his stepdaughters on a 10-minute trip to the cadet hall barracks so one of his daughters could be measured for a uniform and issued gear by the training officer. Mr. Hibbert estimated that he and his stepdaughters either returned home at 2:30 p.m. or left the cadet hall at that time. The cadet training officer estimated that Mr. Hibbert and his stepdaughters arrived at the cadet hall between 2:15 p.m. and 2:20 p.m. and left 10 to 20 minutes later. Rachel Edwards, the appellant’s stepdaughter, said that they arrived at the cadet hall at 2:15 p.m., stayed 20 minutes and arrived home at 2:45 p.m. It is a 10-minute drive from the hall to their residence on Trunk Road. The appellant testified, and his stepdaughter Rachel confirmed, that upon returning home he prepared dinner and worked on carving a walking stick. Rachel conceded that since she was babysitting a little girl that day, she was not in constant contact with the appellant throughout the afternoon. At 5:00 p.m., Mr. Hibbert picked up his wife. Mrs. Hibbert testified that his demeanor was normal, that he was wearing the same clothing as when he dropped her off in the morning, and that his clothes were orderly. Mrs. Hibbert also testified that he wore hiking boots when he dropped her off in the morning and he had the same boots on when he picked her up.
39 The appellant’s alibi was corroborated in part by his wife, his stepdaughters, and by other witnesses for the defence, such as the cadet trainer. His stepdaughter, Rachel Edwards, said that the appellant was inside the house during the period between arriving back from the cadet trip and leaving to pick up his wife, with the exception of 10 minutes when he was on the front step working on his walking stick. Ms. Edwards testified that she recalled seeing him on the step at 3:15 p.m. and him coming back into the house 10 minutes later. At trial the stepdaughter said she would have heard the appellant leave. In cross-examination, she stated that she did not wear a watch. However, in November 1993, Ms. Edwards told police that she was playing Nintendo and had music on the day of the assault and that it was possible her father could have left without her knowing. At trial she explained this inconsistency by stating that she was “tired and upset” when she spoke to the police. The other witnesses could not place Mr. Hibbert at home during the period between his arrival home from the cadet ceremony and the time he left to pick up his wife but their testimo