DATE: 20041209

DOCKET: C35369

COURT OF APPEAL FOR ONTARIO

DOHERTY, CRONK and JURIANSZ JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

DAVID SCOTT HALL

Appellant

John Norris for the appellant

Eric Siebenmorgen for the respondent

Heard: November 17, 2004

On appeal from the conviction entered by Justice Gladys I. Pardu of the Superior Court of Justice, sitting with a jury, dated October 19, 2000.

DOHERTY J.A.:

[1] The appellant was convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 15 years. He appealed his conviction. At the end of oral argument, his appeal was dismissed with reasons to follow.

I

The Evidence

[2] The victim, Peggy Jo Barkley-Dube (“Ms. Barkley-Dube”) was brutally murdered in her home some time between about midnight on May 2 and 8:00 a.m. on May 3, 1999. Ms. Barkley-Dube was repeatedly stabbed and slashed with a very sharp instrument. She put up considerable resistance, suffering over 20 defensive wounds.

[3] Ms. Barkley-Dube was married to a friend of the appellant and knew the appellant socially. Her husband, to the appellant’s knowledge, was in Florida on the night she was murdered. After a month long investigation, the appellant was charged with murder. The identity of Ms. Barkley-Dube’s killer was the only live issue at trial.

[4] The Crown’s case was entirely circumstantial. It depended to a significant degree on two pieces of evidence:

• small traces of the appellant’s blood found in four locations in the deceased’s home; and
• a shoe foot impression found in the deceased’s blood at the scene. A Crown expert testified that based on his comparisons, the impression found at the scene was similar in many respects to the footwear impression made by a Wilson running shoe (the right shoe) owned by the appellant.

[5] The appellant testified. He denied that he had anything to do with the victim’s murder. He explained that he had gone to Ms. Barkley-Dube’s home the day before her death to retrieve certain golf club making equipment that the appellant shared with Ms. Barkley-Dube’s husband. The appellant testified that while he was in the Barkley-Dube home, he banged his finger and reopened a cut that he had suffered earlier at work. According to the appellant, this explained how his blood came to be found in the Barkley-Dube home.

[6] The appellant acknowledged that he owned the pair of Wilson running shoes seized from his parents’ home. He denied that he had made the footprint in the deceased’s blood that was said to correspond to the impression from his running shoe.

[7] On the appellant’s own evidence, he had an opportunity, albeit a limited opportunity, to commit the murder. The appellant testified that he left his home shortly before midnight on May 2 intending to meet a person who was going to purchase marijuana from him. The appellant, who had never sold marijuana before, testified that the drugs belonged to Mr. Barkley-Dube, who had asked the appellant to complete the transaction while Mr. Barkley-Dube was in Florida. Mr. Barkley-Dube denied ever asking the appellant to sell marijuana for him.

[8] The appellant testified that the putative purchaser did not appear as planned so the appellant decided to go for a coffee and returned home at about 1:00 a.m. A security camera in a convenience store photographed the appellant leaving the store at 12:47 a.m. This store was about a minute from the appellant’s home. Ms. Barkley-Dube lived about five to ten minutes from the appellant’s home.

[9] The appellant’s wife and two friends confirmed that the appellant left the home shortly before midnight. The appellant’s wife testified that he returned at about 1:00 a.m. The friends had left by the time the appellant returned.

[10] The appellant argued that unless the jury rejected the evidence that he was home by 1:00 a.m., he had only about one hour to travel to the victim’s home, commit the crime, take the various steps that the perpetrator performed to clean himself up and make it appear as though the murder had occurred in the course of a break-in and return home. The appellant contended that it would be difficult, if not impossible, to accomplish all of those tasks in an hour.

[11] The appellant relied on the medical evidence which, while it fixed the time of death as before midnight on May 2 and well into the morning of May 3, suggested that the more likely time of death was around 3:00 a.m. According to the appellant and his wife, the appellant was home in bed at 3:00 a.m.

[12] The appellant also relied on the absence of evidence. It was argued on his behalf that the absence of any physical evidence, apart from the challenged footprint, connecting him to the bloody scene of the crime made it most unlikely that he was the perpetrator.

[13] The appellant also contended that his conduct after the murder was consistent with innocence and inconsistent with guilt. He co-operated fully with the police, providing two lengthy videotaped statements, various bodily samples, and articles of clothing.

II

The Grounds of Appeal

[14] The grounds of appeal fall into three groups. The appellant challenged two evidentiary rulings, alleged errors in the instructions to the jury, and submitted that on the totality of the evidence, the verdict was unreasonable.

[15] The first ground of appeal arises out of the trial judge’s ruling that a statement made by the appellant to the police on June 2 and the Wilson running shoes seized from the home of the appellant’s parents on June 3 should not be excluded under s. 24(2) of the Charter. The statement was exculpatory, but was said by the Crown to demonstrate an intention to mislead the police on certain relevant matters. As outlined above, the Wilson running shoes were crucial to the footprint impression evidence.

[16] The appellant’s argument challenging the admissibility of the statement and the shoes proceeded through several stages and engaged ss. 7, 8, 10 and 24(2) of the Charter. Counsel conceded that the argument must fail unless he could convince the court that the trial judge was wrong in holding that the appellant was not detained by the police when he made the statement on June 2.

[17] The police obtained judicial warrants compelling the appellant to provide DNA samples and an impression of his hands on June 2. Rather than executing these warrants and compelling the appellant to attend at the police station, the officers decided to go to the appellant’s workplace and see if he would voluntarily agree to come to the station for an interview and to provide the necessary samples. By June 2, the appellant was a suspect and the police hoped that by keeping their relationship with him on a voluntary basis, he might provide further information that would assist them in their investigation.

[18] The police went to the appellant’s workplace and asked him to come to the station to provide the necessary samples and a further statement. The appellant agreed to come to the station, but said he had to finish work. The police waited for the appellant to finish his shift and then drove him to the police station. On route, they advised the appellant that he was a suspect in the murder and could be charged. They also told him that he had a right to silence and advised him of his right to counsel. They did not tell him that they had warrants permitting them to obtain DNA samples and hand impressions and that they would have executed those warrants if the appellant had refused to go with them to the police station.

[19] In his testimony on the voir dire, the appellant said that he understood that he had a choice whether to accompany the police to the police station. He also knew that he could refuse to speak with them. He chose to go to the station intending to provide a further statement and the samples requested.

[20] At the police station, the appellant was again advised of his right to counsel and his right to remain silent. He agreed to speak with the police and a videotaped interview followed. During the interview, the appellant’s wife called the station and provided the phone number for a lawyer with whom she had just spoken. The police passed this message on to the appellant, and stopped the interview so that he could call this lawyer in private. The appellant spoke with the lawyer and then returned to the interview. As the interview progressed, it became more confrontational. Finally, the police told the appellant that they believed he was in Ms. Barkley-Dube’s home on the day she died. The appellant reacted by indicating that his lawyer had told him that he could leave at any time he wished. The officer responded, “the door’s open”. The appellant got up to leave, at which point the interview ended and the police told him that they had warrants permitting them to take blood samples and obtain hand impressions. Those warrants were executed and the appellant was released.

[21] The appellant was not deprived of his liberty by physical restraint or any other form of direction by the police. Nor is this a case of psychological detention, in the sense that the appellant reasonably believed that he had no choice but to accompany the police to the station. To the contrary, the appellant expressly testified that he believed that he had a choice and exercised that choice in deciding to accompany the police.

[22] Counsel for the appellant contends that although the appellant was not physically restrained and felt no compulsion to go with the police, he was detained because the police had the authority to detain him under the warrants and intended to exercise that authority if the appellant did not co-operate. I see no reason in policy or logic to extend the concept of detention to situations in which the police have the authority to detain an individual, choose not to exercise that authority, and instead permit an individual to choose whether to voluntarily accede to a request from the police. If detention is to have any meaning, it must involve the exercise of some power by a state authority over an individual’s liberty, or the reasonable apprehension of the exercise of such power. Here, for tactical reasons, the police deliberately chose not to exercise that power and set about to avoid detaining the appellant. The appellant’s decision to go with the police made it unnecessary to detain him.

[23] I also reject the contention that the police had an obligation to inform the appellant that if he chose not to co-operate with the police, they had the legal authority to require him to attend at the station to provide the samples. The police made it clear to the appellant that he was a suspect and could be charged with murder. They advised him of his right to silence and his right to counsel. The appellant made choices. He chose to accompany the officers to the station, chose not to contact a lawyer, and chose to provide a statement. The trial judge specifically found that none of those choices would have been different had the appellant been advised that the police had the warrants authorizing the taking of the samples. In any event, the fact that the police would have executed those warrants if the appellant had decided not to co-operate is irrelevant to whether the appellant’s decision to co-operate was an informed one. The appellant knew what the police wanted, knew he was a suspect, knew he did not have to speak with the police or go with them to the station, and knew he could speak to a lawyer before making any of those decisions. There is no reason to discount his informed decision to co-operate because the police would have detained him had he chosen not to co-operate.

[24] The trial judge’s finding that the appellant was not detained when he made his statement on June 2 is fully supported by the facts as found by her. There is no basis upon which this court should interfere with her ruling. As counsel acknowledges, absent a finding that the appellant was detained, there is no argument against the admissibility of the statement or the shoes.

[25] In his second ground of appeal, the appellant challenged the admissibility of the expert evidence concerning the comparison of the footwear impressions. On the voir dire to determine the admissibility of this evidence, the Crown expert described the techniques he used to lift the footwear impression from the scene of the murder and compare that impression with impressions made by the appellant’s Wilson running shoes. With the assistance of photographs and charts, the expert identified various similarities between the two impressions. These ranged from what he described as class characteristics (e.g. size and make), to wear characteristics and accidental characteristics. The expert also described his training and experience in comparing footprint impressions.

[26] The defence did not call any evidence on this voir dire.

[27] The trial judge ruled that the expert could testify as to the similarities between the two impressions, but could not testify that in his opinion the appellant’s shoe made the impression in the deceased’s blood.

[28] Contrary to the appellant’s submission, there was nothing novel about the expert evidence offered by the Crown. Expert evidence comparing footprint impressions has been received in criminal cases in this province for at least 25 years: See e.g. R. v. Howard and Trudel (1983), 3 C.C.C. (3d) 399 (Ont. C.A.) at 415-17.

[29] Nor can I accede to counsel’s argument that the expert evidence was unnecessary because the jury was as able as the expert to identify any similarities that may have existed in the two footprint impressions. The trial judge said:

Without his evidence [the expert’s], a lay person might not see or understand the significance of subtle marks on the impressions. His evidence will assist the jury in evaluating the patterns found in the two impressions and the Court will permit him to testify about the similarities.

[30] Having heard the expert evidence on the voir dire and examined the proposed demonstrative aids, the trial judge was in a better position than this court to determine whether his evidence was necessary to give the jury a proper appreciation of the potential significance of the footwear impression evidence offered by the Crown. Deference is due to the trial judge’s necessity finding: R. v. Ranger (2003), 178 C.C.C. (3d) 375 (Ont. C.A.) at 395. I would not interfere with her finding that the expert evidence was necessary.

[31] Counsel for the appellant next submitted that even if the evidence had some probative value, that value was exceeded by its potential prejudicial effect. Counsel contended that the potential prejudice rested in the risk that the jury would simply accept what the expert said without critically examining his evidence.

[32] No doubt, there is a risk that a jury will cede its fact-finding function to an expert. The extent of this risk depends in large measure on the nature of the expert evidence. Sometimes the basis upon which an expert advances an opinion is very difficult for a lay person to critically analyze. That is not the situation in this case. The basis for this expert’s opinion was capable of evaluation by the jury. They could examine the photographs and charts and independently consider whether the similarities identified by the expert were in fact similarities. This was not the kind of expert evidence which carries with it an aura of “mystic infallibility”.

[33] I agree with the trial judge’s finding that the potential prejudicial effect of this evidence did not warrant its exclusion.

[34] The appellant also raises several objections to the charge to the jury. The first concerns the reasonable doubt instruction. That instruction was virtually identical to the language used in R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.). The trial judge, however, declined counsel’s request to further instruct the jury in the terms of R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.). In Starr, at p. 545, Iacobucci J. explained that:

[A]n effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities.

[35] I do not read Starr as mandating the use of the language described as “effective” in the passage quoted above. Had the court intended in Starr to overrule Lifchus, it would have said so. To the contrary, Starr approves the Lifchus instruction. As explained in Starr, the jury must be told that the reasonable doubt standard is much closer to the certainty end of the proof spectrum than the balance of probabilities end of that spectrum. Starr does not suggest that the Lifchus instruction will not achieve that purpose, but rather suggests an “effective” way of making the same point.

[36] The trial judge’s verbatim use of the Lifchus instruction, which included a clear direction to the jury that it had to be “sure” before it could convict, conveyed to the jury that the reasonable doubt requirement was much closer to the certainty end of the proof spectrum than to the balance of probabilities end of that spectrum.

[37] The appellant also challenges the trial judge’s instructions on the “after-the-fact” conduct relied on by the Crown, her treatment of the “consciousness of innocence” evidence relied on by the defence, and her instructions on the expert evidence relating to the footwear impressions. I do not propose to deal with each of these submissions separately. In essence, they come down to the claim that the trial judge did not adequately deal with the defence position in respect of these parts of the evidence.

[38] As with any instruction to the jury, it can be said that the trial judge could have said more on behalf of the defence and she could have said what she did say in a way that may have been more helpful to the defence. Neither complaint amounts to reversible error. The trial judge dealt with the evidence in a fair and balanced, albeit relatively brief, manner. For example, in reviewing the evidence of the appellant’s conduct subsequent to the homicide, she made it clear to the jury that it was the position of the defence that this conduct was entirely inconsistent with the appellant having killed Ms. Barkley-Dube. The trial judge placed this evidence in the part of her instruction where she addressed the “after-the-fact” conduct relied on by the Crown. In doing so, she at least implicitly invited the jury to consider the appellant’s “after-the-fact” conduct as a whole before coming to any decisions as to what inferences should be drawn from any specific feature of that “after-the-fact” conduct. This instruction is consistent with R. v. Baltrusaitis (2002), 162 C.C.C. (3d) 539 (Ont. C.A.).

[39] The trial judge also dealt with the expert evidence in a fair and balanced manner. She heard the evidence and she saw the jury listen to the evidence. She was in a good position to know how best to assist the jury in assessing this evidence. I reject the contention that some form of “caution” concerning the expert evidence was necessary. There is no need to “caution” the jury against accepting any and all evidence that may assist the prosecution. Sometimes, expert evidence will attract a specific caution from the trial judge. When and how a caution should be given is a matter for the trial judge. I see no basis upon which to interfere with the manner in which the trial judge dealt with this expert evidence.

[40] The last objection to the jury instruction is described by counsel as a failure to deal adequately with the appellant’s “alibi”. The appellant did not have an alibi. As described earlier in these reasons, the evidence viewed in the best light for the appellant provided him with an opportunity, albeit a brief opportunity, to commit the murder.

[41] The trial judge reviewed the evidence of the appellant’s movements and the expert evidence concerning the time of death. She made it crystal clear to the jury that if on the totality of the evidence, it had a reasonable doubt as to whether the appellant was the killer, it must acquit. Obviously, if the evidence of the limited opportunity to commit the crime had left the jury with a reasonable doubt, it would have acquitted. I see no need for a separate instruction to the effect that the Crown had to “disprove the appellant’s alibi”. Any reference to an alibi would have been misleading. In any event, the instruction now suggested by counsel was simply another way of telling the jury that the Crown had to prove beyond a reasonable doubt that the appellant was the killer. Expressing one legal concept to lay jurors in different ways in the course of a single instruction can be a recipe for confusion.

[42] The trial judge’s instructions were fair and error free.

[43] The appellant’s final argument challenges the reasonableness of the verdict. Relying on R. v. Liu, [2004] O.J. No. 4221 (C.A.), counsel submits that where the issue at trial was identity and the evidence was circumstantial, this court must set aside a conviction and enter an acquittal unless it is satisfied that the identity of the appellant as the killer was “the only logical and rational conclusion on the evidence”. I disagree with this formulation of the reasonableness inquiry dictated by s. 686(1)(a)(i) of the Criminal Code. The appropriate approach is described in many authorities, including in Liu where the court said at para. 6:

It is well settled that the test to be applied in determining if a guilty verdict should be set aside as being unreasonable or one that cannot be supported by the evidence is whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered. The question is not whether, on the evidence, the verdict could possibly be rendered but rather, whether it reasonably could be reached. The application of the test requires this court to re-examine and re-weigh the evidence but the court cannot simply substitute its view for that of the jury. The words “acting judicially” mean that the jury must, among other things, apply the law, adjudicate only on the basis of the record, and arrive at a conclusion that does not conflict with the bulk of judicial experience.

[44] In this case, a jury acting reasonably could convict only if it could reasonably reject the appellant’s evidence and be satisfied on the basis of the circumstantial evidence marshalled by the Crown that the appellant had murdered Ms. Barkley-Dube.

[45] There was ample reason to reject the appellant’s evidence, particularly as it related to his reason for leaving his home shortly before midnight on May 2 and his explanation for how his blood came to be in various locations in the deceased’s home.

[46] Insofar as the Crown’s case is concerned, I would not describe the circumstantial evidence as presenting an overwhelming case against the appellant. There are aspects of the Crown’s case, particularly the absence of evidence of motive, that give cause for concern. However, on my review of the evidence, I cannot say that a reasonable jury, considering the entirety of the evidence, could not, acting judicially, have convicted the appellant. The expert evidence relating to the footwear impressions, and the evidence of the appellant’s blood found in the deceased’s home could reasonably be viewed as powerful circumstantial evidence. A conviction based on the entirety of the evidence was open in this case and cannot be set aside as unreasonable.

III

[47] For the reasons set out above, the appeal was dismissed.

RELEASED: “DD” “DEC 09 2004”

“Doherty J.A.”

“I agree E.A. Cronk J.A.”

“I agree R.G. Juriansz J.A.”