DATE: 20040315

DOCKET: C24750

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. DAVID WAYNE SNOWDON (Appellant)

BEFORE: CATZMAN, DOHERTY and ARMSTRONG JJ.A.

COUNSEL: Russell Silverstein and Catherine Glaister for the appellant Susan Ficek and Grace Choi for the respondent

HEARD: March 9, 2004

On appeal from the conviction entered by Justice David Watt of the Superior Court of Justice, sitting with a jury, dated May 1, 1996.

E N D O R S E M E N T

[1] The appellant was convicted of the first degree murder of Kayla Klaudusz. Kayla was 3 ½ years old when she disappeared from the courtyard of her apartment building. The appellant lived in the apartment directly below Kayla’s. Kayla’s body was found about a month later in Lake Ontario. She had been sexually assaulted. The post mortem examination indicated that she had been killed very shortly after her abduction.

[2] There was only one issue at trial – had the Crown proved beyond a reasonable doubt that the appellant killed Kayla? It was common ground that whoever killed Kayla was guilty of first degree murder.

[3] The Crown’s case rested on evidence of opportunity, fibre evidence suggesting that Kayla had been in the appellant’s apartment when she was killed, and DNA evidence identifying two stains on the appellant’s shorts as containing Kayla’s blood. One of the stains was on the inside flap of the zipper. The appellant testified and denied that he had anything to do with Kayla’s disappearance or death. His testimony was consistent in the main with several statements that the appellant had given to the police in the days and weeks following Kayla’s disappearance. There was also evidence that the appellant had co-operated with the police throughout their investigation.

[4] The court required argument from the Crown on three grounds of appeal.

The instruction on reasonable doubt

[5] The trial judge’s instructions on reasonable doubt were thorough and detailed. They did not comply with the model instruction provided in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320. This is hardly surprising given that the trial occurred about a year before the reasons in Lifchus, supra, were released. In R. v. Pan (2001), 2001 SCC 42, 155 C.C.C. (3d) 97 (SCC), the court held that a reasonable doubt instruction given by the same trial judge in virtually the identical language as was used in this case was in “substantial compliance” with the Lifchus instruction. We see no reason to reach a different conclusion. The instruction was adequate.

The alleged “Miller” error

[6] Counsel alleges that the trial judge fell into the error identified in R. v. Miller (1991), 1991 2704 (ON CA), 68 C.C.C. (3d) 517 (Ont. C.A.) by instructing the jury that in determining its verdict it could consider only evidence that it had “accepted” as truthful and accurate. Counsel argues that the jury were required to look at all of the evidence in arriving at their verdict, although they were limited to evidence which they accepted in making findings of fact that could assist the Crown in proving its case beyond a reasonable doubt.

[7] Two passages in the instructions considered in isolation offer some support for this submission. The instructions, however, consume over 300 pages. In the course of those instructions, the jury was repeatedly told that they must consider all of the evidence in applying the burden of proof and arriving at a verdict. Considering the charge as a whole, we are satisfied that the judge did not fall into the “Miller” error.

The “consciousness of guilt” instruction

[8] Counsel for the appellant forcefully argued that the trial judge made several errors in instructing the jury on evidence which the trial judge described as potential evidence of consciousness of guilt. This evidence arose out of certain statements made to the police by the appellant.

[9] In the course of his first statement, the appellant told the police that he had not seen Kayla on the day she disappeared. The appellant later told the police that he had in fact seen her around the apartment in the late afternoon or early evening. In his evidence, the appellant confirmed that he had seen Kayla that day.

[10] The appellant was also asked about his car by the police. He acknowledged that he owned a car and told the police where it was parked. In different statements, he gave more or less precise indications of when he had last used the car. The police came to believe that the car was used to move Kayla’s body from the appellant’s apartment, or another nearby apartment, to the lake.

[11] The trial judge instructed the jury that the contradictions in the appellant’s statements outlined above could constitute evidence of consciousness of guilt. The trial judge gave the jury detailed instructions as to three preconditions which must be met before the jury could use the evidence as evidence of consciousness of guilt.

[12] The trial judge’s instructions were given many years ago. He did not have the benefit of developments in the jurisprudence since this trial which have significantly altered and simplified the manner in which post-offence conduct should be addressed by the trial judge. We have no doubt that the trial judge would give very different instructions were he charging this jury today.

[13] We agree with counsel’s contention that the appellant’s statements as to when he last drove his car were not reasonably capable of supporting a consciousness of guilt inference. It is difficult to see how the statements could be described as inconsistent much less deliberately false.

[14] We are, however, satisfied that the appellant’s statements as to whether he saw Kayla on the day she disappeared could support a consciousness of guilt inference.

[15] We further agree with counsel’s submission that it would have been better for the trial judge to have balanced his reference to evidence which could support an inference of consciousness of guilt by reference to the evidence of the appellant’s conduct after Kayla’s disappearance, that was consistent with innocence and inconsistent with any consciousness of guilt inference. This evidence included the appellant’s co-operation with the police.

[16] Despite the shortcomings described above, we are satisfied that the instructions on the consciousness of guilt evidence could not and did not prejudice the appellant.

[17] In keeping with the established authority at the time, the trial judge set out certain preconditions to the use of the evidence as evidence of consciousness of guilt. Those preconditions effectively required the jury to be satisfied beyond a reasonable doubt that the statements reflected a consciousness of guilt concerning the death of Kayla before the statements had any evidentiary value at all. Assuming, as we must, that the jury followed this instruction, any reliance on the consciousness of guilt evidence could not have affected the ultimate verdict.

[18] We also agree with Crown counsel’s submissions that the instructions on the consciousness of guilt evidence did not play a central role in the trial judge’s instructions, or in the case advanced by the Crown. The Crown relied on evidence of opportunity that can properly be described as strong, forensic evidence involving certain fibres found on the deceased’s clothing which can be described as very strong, and DNA evidence placing the blood of the deceased on the appellant’s shorts and, in particular, on the inside flap of the fly on the appellant’s shorts. The strength of the DNA evidence is self-evident. We are convinced that the jury would not have focussed on the two statements which the trial judge left to them as potentially capable of affording evidence of consciousness of guilt.

[19] Lastly, the trial judge did not specifically tell the jury that they should consider the entirety of the appellant’s post-event conduct, including that from which an inference of innocence could be drawn. However, in deciding whether to draw an inference of consciousness of guilt, he did remind the jury of that conduct in reviewing the position of the defence, and repeatedly told the jury that the evidence must be considered as a whole.

[20] We would dismiss the appeal.

"M.A. Catzman J.A."

"Doherty J.A."

"Armstrong J.A."