Court of Appeal for Ontario

Date: 2019-07-04

Docket: C64104

Judges: Sharpe, Simmons and Fairburn JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Blake Wilson Appellant

Counsel

For the Appellant: Dirk Derstine and Laura Remigio

For the Respondent: Karen Papadopoulos

Hearing and Appeal

Heard: June 19, 2019

On appeal from: The conviction entered and sentence imposed by Justice Robert A. Clark of the Superior Court of Justice, sitting with a jury, on April 21, 2016.

Reasons for Decision

Overview

[1] The deceased, a sex-trade worker, was found dead in her apartment on July 13, 2013. Fires had been set in three separate locations in the apartment. The deceased had a fractured larynx and bruising on her neck and upper body. The appellant's sperm was found in her mouth. Calls were traced from the appellant's cell phone to her telephone the night before her death. The appellant's phone had connected with hers again in the hours before her death, originating from the cell tower closest to her apartment. Security footage captured a man of the appellant's general description arriving at the deceased's apartment and then leaving shortly before firefighters arrived.

[2] The theory of the Crown was that the appellant should be convicted of first degree murder on the basis that he had caused the death of the deceased by the application of force to her neck, while committing a sexual assault.

[3] The principal defence at trial was identity. Defence counsel also submitted that a possible cause of death was heart disease. Further, even if the Crown had proven the appellant murdered the deceased, defence counsel argued the Crown had failed to prove the sexual activity was non-consensual. The appellant did not testify.

[4] The jury returned a verdict of guilty for first degree murder and the trial judge sentenced the appellant to life imprisonment with 25 years of parole ineligibility.

[5] The appellant appeals from his conviction.

Facts

[6] The deceased, a 72-year-old woman, suffered from mobility issues and worked in the sex trade. On July 13, 2013, at 1:12 p.m., firefighters were dispatched to her apartment. They found the unit full of smoke. When the smoke cleared, they found the deceased kneeling at the foot of her bed, face down. Her body was charred.

[7] According to the fire investigator, fires had been set in her apartment in three different places. Sperm cells were found in the deceased's mouth. That sample was later matched by DNA testing to the appellant. Other sperm samples were found in her vaginal cavity but not identified. The appellant's phone records revealed that he had called the deceased several times in the day and hours preceding her death. In the hour and a half before the arrival of the firefighters, these calls had originated from the cell tower closest to the deceased's apartment.

[8] Security footage from the TTC and the deceased's apartment building revealed an individual said to match the description of the appellant arriving at the deceased's unit approximately an hour before the fires were set. The individual was then recorded leaving her floor minutes before the firefighters arrived. He was wearing a golf shirt belonging to the deceased's roommate over his white t-shirt. The man was then caught on video surveillance in the Finch subway station. By that point he had removed the golf shirt and was back to wearing only his white t-shirt. He boarded a train at the Finch Station and took it southbound to the College Station, exiting toward College Park. Within five minutes of his exit, someone tried to withdraw $800 from the deceased's bank account using her bank card at an ATM machine in College Park.

[9] The autopsy revealed that the deceased had died prior to the fires being set. Before she died, she had suffered a fractured larynx, some associated bruising and multiple other bruises to the upper part of her body. Dr. Pollanen, the forensic pathologist who conducted the autopsy, was of the opinion that the cause of death was compression of the deceased's neck, cutting off blood flow to her brain. He noted that the deceased did suffer from heart disease, but rejected that as the cause of death.

Issues

[10] On appeal, the appellant no longer contests that he was the man captured on the video footage. This appeal raises four issues:

1. Did the trial judge misapprehend the evidence of strangulation in his charge to the jury?

2. Did the trial judge err in his instructions to the jury on the non-fatal injuries?

3. Did the trial judge err by giving improper examples of circumstantial evidence to the jury?

4. Did the trial judge err in his instructions to the jury on the post-offence conduct?

Analysis

(1) Did the trial judge misapprehend the evidence of strangulation?

[11] The appellant submits that the trial judge misapprehended Dr. Pollanen's evidence as to the cause of death and erred by repeatedly referring to the deceased as having been "strangled". The appellant submits that Dr. Pollanen's evidence does not support that characterization of the cause of death. The appellant argues that, while Dr. Pollanen testified that the cause of death was a "neck compression", he also testified that he could find none of the usual features that would indicate manual strangulation or strangulation with a ligature or rope. Consequently, there was not enough evidence to determine the mechanism by which the neck compression occurred. The appellant submits that Dr. Pollanen should be taken to have agreed that the neck compression could have been caused by a fall onto an arm rest or the edge of another hard surface.

[12] We disagree with the contention that the trial judge misapprehended Dr. Pollanen's evidence. Dr. Pollanen was clear that in his opinion, the cause of death was neck compression, which is frequently caused by strangulation. He explained that death caused by neck compression is the result of sustained pressure around the neck that collapses the blood vessels and interrupts blood flow to the brain for long enough that the individual dies. While he could not indicate how the neck compression occurred with certainty, he referred to three examples of how it could have occurred – manual strangulation, ligature strangulation and carotid sleeper holds or chokeholds. A significant reason why Dr. Pollanen could not be more precise about the mechanism of neck compression was the damage the fire had caused to the deceased's body.

[13] While Dr. Pollanen agreed that in a hypothetical situation a person could suffer the larynx fracture exhibited by the deceased as the result of a fall or accidental application of force, he never agreed that a fall or accidental application of force constituted forms of neck compression. We agree with the respondent that a fair characterization of his evidence is that the larynx fracture was a marker of neck compression but not, in and of itself, a possible cause of death. We also agree that the fact that Dr. Pollanen could not opine with absolute certainty on the specific form of neck compression that caused the death did not bar the jury from finding on the basis of the evidence that the deceased was strangled.

[14] The trial judge's use of the terms "strangle" and "strangulation" did not deprive the appellant of a fair trial. To "strangle" is simply to squeeze or constrict the neck, whether by manual strangulation, ligature or chokehold. In other words, it is a common expression which, when fairly read and understood in the context of this case, the jury would have understood to simply mean neck compression.

[15] Moreover, the trial judge clearly instructed the jury that they were the ultimate deciders of the facts and that although he might express opinions about the facts, the jury need not agree with him. He fully and fairly reviewed Dr. Pollanen's evidence, including its two limitations: (a) that the larynx fracture could have been caused by a fall or the deceased hitting her neck on something hard; and (b) that the fire damage to the deceased's body prevented a conclusive determination of the precise mechanism of neck compression.

[16] He instructed the jury that to find the appellant guilty at least of manslaughter, they must be convinced beyond a reasonable doubt that the appellant "intended to apply force to the deceased's throat, (that is to say, intended to strangle her)," so that any reasonable doubt as to whether that act was committed intentionally would have led to an acquittal.

(2) Did the trial judge err in his instructions on the non-fatal injuries?

[17] The appellant argues in his factum that trial judge erred in instructing the jury that it could not consider the non-fatal bruises and other injuries on the deceased's body as supporting a conviction for manslaughter but could consider them as supporting a conviction for murder. The appellant argues that this effectively removed the possibility of a manslaughter conviction from the jury's consideration. The appellant says that the jury should have been instructed that the unlawful act giving rise to unlawful act manslaughter could have been an intentional punch or push that caused some or all of the injuries unrelated to the deceased's neck and accidentally caused her to fall in such a way as to result in unintended neck compression. While the appellant did not abandon this ground of appeal, it was not advanced in oral argument.

[18] In our view, it must be rejected.

[19] This theory was never put to the jury by the appellant's trial counsel, who decided to focus her submissions on what she argued were the weaknesses of the evidence going to identification and the cause of death rather than providing the jury with the choice of what might be considered the "compromise verdict" of manslaughter. Nor did defence counsel object to this aspect of the charge. Tactical decisions to allow an omission in a charge may be considered as a factor against finding that the charge was inadequate on appeal: R. v. Luciano, 2011 ONCA 89, 273 O.A.C. 273, at paras. 76-77; R. v. Calnen, 2019 SCC 6, 430 D.L.R. (4th) 471, at para. 67.

[20] In light of trial counsel's approach, and the state of the evidence, the trial judge did not err in his instructions on unlawful act manslaughter. He explained to the jury that the unlawful act in unlawful act manslaughter must be causally related to the death. Dr. Pollanen testified that the cause of death was neck compression and drew a direct link between the deceased's neck injuries and the cause of death. He made no such link to the other injuries of the deceased. In particular, as we have already noted, there was no evidence to support the contention that a push or fall could produce neck compression and no evidence that the fractured larynx was a possible cause of death.

(3) Did the trial judge err by giving improper examples of circumstantial evidence?

[21] The appellant submits that as the Crown's case was based on circumstantial evidence, the trial judge's instructions to the jury regarding the drawing of inferences from circumstantial evidence were crucial to the jury's determination of these key issues.

[22] The appellant acknowledges that the trial judge gave the jury a clear instruction on the use of circumstantial evidence that accurately tracked the Supreme Court of Canada's direction in R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33, and R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30. The trial judge instructed the jury that "because this case is based entirely on circumstantial evidence, you may convict the accused of first degree murder, or one of the two lesser and included offences I will discuss, only if his guilt of that offence is the only reasonable inference to be drawn on the whole of the evidence you accept."

[23] However, the appellant takes issue with certain examples the trial judge used to illustrate how the jury might draw inferences from circumstantial evidence, arguing that they effectively watered down the Griffin / Villaroman instruction. In particular, the trial judge suggested that if you pay someone to deliver the paper and someone else to clear snow and when you wake up in the morning both tasks have been completed, you would be entitled to conclude that the people that you paid completed those tasks, not because that is the only possible conclusion, but because it is the only reasonable inference to draw in all the circumstances.

[24] Although we find that examples along these lines are not particularly helpful and we discourage their use in future cases, the trial judge also provided other examples of how to draw inferences, ones with which the appellant takes no issue. He also specifically cautioned the jury that they were not to speculate when drawing inferences. Read in totality and along with all of the trial judge's other instructions on how to draw inferences from circumstantial evidence, we are left in no doubt that the jury would have understood that an inference of guilt drawn from circumstantial evidence "should be the only reasonable inference that such evidence permits": Villaroman, at para. 30.

[25] We are not persuaded that the impugned examples undermined the appellant's right to a fair trial or that when read in light of the charge as a whole, they could have led the jury to apply a lower standard to circumstantial evidence than that mandated by Griffin and Villaroman.

(4) Did the trial judge err in his instructions on the post-offence conduct?

[26] The appellant submits that trial judge erred in his instructions on the use that could be made of evidence of post-offence conduct.

[27] There is no dispute that the evidence of post-offence conduct, including the setting of the fires and manner of flight, was relevant and admissible at trial. Defence counsel conceded that it could be probative of whether some type of unlawful act was committed.

[28] The first error alleged by the appellant relates to the relevance of the post-offence conduct to whether the sexual encounter between the appellant and the deceased was consensual. While the parties were at odds as to when during the period the appellant was in the apartment the sexual activity took place, they agreed that the length of time available for sexual activity informed the issue of consent. The trial judge summarized those positions for the jury. The defence position was that the perpetrator was in the apartment for one hour and eight minutes, more than enough time for a consensual sexual act to have taken place. The Crown position was that the evidence supported a much shorter time frame.

[29] The deceased received four telephone calls from numbers other than the appellant's while the appellant was in her apartment. The final telephone call lasted 73 seconds and ended approximately 39 minutes before the appellant left the apartment. The Crown maintained that the sexual activity occurred after the last call.

[30] The trial judge instructed the jury that they may find that the 39 minutes was sufficient time to support a consensual sexual act and that it would not be unusual for a consensual sexual encounter to last much less time than that. The trial judge further instructed the jury that, "on the other hand", the evidence was capable of supporting an inference that during that 39-minute window, the appellant had also engaged in other activity, such as setting fires, stealing the deceased's bank card, and taking her roommate's shirt. Because of all of those activities, the timeframe in which to engage in the sexual activity was actually much shorter than 39 minutes and "could support an inference that the sexual encounter, or at least some part of it, was not consensual".

[31] In light of the parties' positions, we see no error in the trial judge's approach on this issue.

[32] The appellant's second complaint is that the trial judge erred in instructing the jury that the post-offence conduct was relevant to determining whether the sexual assault was part of the same transaction or series of events as the murder. We do not agree.

[33] The only route to first degree murder was through the commission of a sexual assault. The sexual assault and murder had to be part of the same transaction or series of events. The impugned instruction merely explained how the jury could use the post-offence conduct evidence to inform whether they were satisfied that connection had been made out. The timing issue and all of the events that were said to have taken place within the 39-minute window were relevant to that determination.

[34] We note that trial counsel did not object to the aspects of the trial judge's instruction on post-offence conduct relating to timing and its relevance to the issues of consent and whether the sexual assault was part of the same transaction as the murder.

[35] In our view, the trial judge did not err in instructing the jury that they could consider the post-offence conduct and the timeframe in which they determined the events unfolded in assessing the issues of consent and whether the sexual assault and the murder were part of the same transaction. The use of the post-offence conduct in this manner was unusual and did not give rise to the usual danger about improperly inferring the accused's level of intention from post-offence conduct. It was being used for a very different and distinct purpose, that of determining the manner in which events unfolded while the appellant was in the apartment. The events that occurred and the timeframe in which they occurred were directly relevant to the determination of two crucial issues. Therefore the post-offence conduct was directly relevant to both issues and was properly put before the jury on that basis.

[36] While these instructions did place the evidence of post-offence conduct squarely before the jury, as we explain below, the trial judge gave an appropriate caution on the use of post-offence conduct to infer the appellant's intent.

[37] In the section of his charge dealing directly with post-offence conduct, the trial judge gave a standard caution that, with one exception we will discuss below, the jury was not to use evidence of post-offence conduct to decide as between the offences of manslaughter, second degree murder and first degree murder. The trial judge stated that it is no more likely that a person who commits a planned or intentional murder would do those things than it is that someone who killed a person unintentionally by means of an unlawful act would do the same thing because they are aware of a lesser form of criminal guilt.

[38] The trial judge explained that, as an exception to this general rule that the post-offence conduct could not be used to determine whether the appellant had committed murder rather than manslaughter, it was open to the jury to conclude that he had set the fires to cover up evidence that would show that he had killed the deceased intentionally, such as evidence of the nature and extent of any injuries inflicted. The jury could thus use the post-offence conduct evidence in this limited way to decide as between murder and manslaughter, but not, as the trial judge explained, as between second and first degree murder.

[39] The relevance of the post-mortem setting of the fires to intent for murder is supported by the case law. In R. v. Teske (2005), 202 O.A.C. 239 (C.A.), at paras. 85-88, this court held that it is open to a jury to draw the reasonable inference that an accused destroyed the body because he deliberately inflicted serious bodily harm likely to cause death and knows the victim's wounds are inconsistent with a non-intentional cause of death. The Supreme Court also concluded in Calnen, at paras. 119-140, that the altering, concealing or destroying of evidence can be relevant to a determination of intent. It held that the existence of other plausible explanations for the after-the-fact conduct does not defeat its probative force and so long as conduct is more capable of supporting the inference sought than the alternative inferences, the inference that is ultimately to be made from it should be left to the trier of fact: paras. 143-145.

[40] Accordingly, we do not accept the submission that the trial judge erred in his treatment of the post-offence conduct evidence.

Disposition

[41] For these reasons, the appeal from conviction is dismissed.

Robert J. Sharpe J.A.

Janet Simmons J.A.

Fairburn J.A.