DATE: 2004-04-30

DOCKET: C40639

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and PETER DALE MacDONALD (Appellant)

BEFORE:

ROSENBERG, BORINS and FELDMAN JJ.A.

COUNSEL:

John M. Rosen and Heather Pringle for the appellant

Jamie C. Klukach for the respondent

HEARD:

April 16, 2004

On appeal from the order of Justice Eugene G. Ewaschuk of the Superior Court of Justice dated August 12, 2002 upholding the committal order of Justice Ian A. MacDonnell of the Ontario Court of Justice dated October 23, 2002.

E N D O R S E M E N T

[1] This is an appeal pursuant to s. 784(1) of the Criminal Code against the dismissal of the appellant’s application for relief by way of certiorari to quash an order that he stand trial on a charge of first degree murder.

[2] The preliminary hearing judge concluded that there was evidence that the appellant caused the death of the victim while committing, or attempting to commit, a sexual assault, namely, anal intercourse, and on that basis, he ordered the appellant to stand trial on first degree murder pursuant to s. 231(5)(b) of the Code.

[3] As for the Crown’s alternative position for committal on first degree murder on the ground that the murder occurred while the appellant was committing an unlawful confinement, the preliminary hearing judge said that as it would be open to the jury to find that an unlawful confinement was inherent in the alleged sexual assault of the victim, the appellant was also liable to conviction for first degree murder under s. 231(5)(e). However, the judge added that were there to be no evidence of a sexual assault, the remaining evidence would not support committal for trial on a finding of an underlying offence of unlawful confinement.

[4] Throughout these proceedings, it has been the appellant’s position that as there is no evidence of either an attempted, or completed, sexual assault or an unlawful confinement, a jury could not find that he caused the victim’s death while committing, or attempting to commit, either of these underlying offences as required by s. 231(5). He submits that the preliminary hearing judge exceeded his jurisdiction in ordering him to stand trial on first degree murder in the absence of any supporting evidence and that the reviewing justice erred in law in upholding that order. He contends, therefore, that he should have been ordered to stand trial on second degree murder. We agree with the appellant’s submission.

[5] The theory of the Crown at the preliminary inquiry was that the appellant engaged in non-consensual anal intercourse with the deceased. There was a body of evidence to support the theory that the deceased had an aversion to anal intercourse. Therefore if there was any evidence of anal intercourse it would be open to a trier of fact to find that such act was without consent of the deceased and therefore a sexual assault. It would similarly be open to a trier of fact to find that the murder and the sexual assault formed part of one continuous sequence of events thus justifying an order to stand trial on first degree murder under s. 231(5) of the Criminal Code. However, there was no evidence of an act of anal intercourse and therefore no evidence of a sexual assault.

[6] There was evidence of a sexual encounter between the appellant and the deceased prior to the murder. The DNA testing that showed a mixture of the deceased’s semen and the appellant’s saliva on the bed sheet suggested that the appellant performed an act of fellatio on the deceased. The Crown did not suggest that this act could be non-consensual.

[7] There was no evidence of any injury to the rectum or anus. The analyst also found 17 sperm cells in the deceased’s anal cavity. The DNA profile of these sperm cells matched the deceased, not the appellant. The analyst testified that either the deceased was the donor of the semen or the donor of the semen was unknown. The explanation for the presence of the deceased’s own semen in his rectum was that after ejaculation during the act of fellatio the semen might have migrated to the deceased’s anus and seeped into his rectum. That explanation contradicts a suggestion of anal intercourse.

[8] The possibility that the donor of the semen was unknown was based on the theory that the analyst was actually unable to obtain a DNA profile from the sperm cells and was instead picking up the deceased’s epithelial profile. There are significant problems with this theory as a basis for anal intercourse. Seventeen sperm cells are no more than a trace amount. The normal ejaculate contains 150 to 300 million sperm. The preliminary inquiry judge appears to have based his finding of anal intercourse on his understanding that the 17 sperm cells were the remnant of a much larger deposit that had been lost during the period from the time of death until the taking of the swab as part of the autopsy. However, as the reviewing justice pointed out, this was based on a misapprehension of the evidence. While sperm will be lost over a period of 60 to 72 hours after being deposited in the cavity of a living person, following death, the loss of semen slows down or stops. Had anal intercourse occurred four hours prior to death, sperm in excess of the 17 sperm cells actually found would be expected to be present. On a proper interpretation of the evidence, there was only speculation that the appellant engaged in anal intercourse with the deceased while committing the murder. There was no body of evidence from which an inference of anal intercourse could be drawn.

[9] While the reviewing justice recognized that the preliminary hearing judge misinterpreted the expert evidence, he nevertheless went on to hold that it was possible there had been anal intercourse because the analyst did not testify that there “necessarily had to have been much more sperm”. Thus, he held that “it remains a reasonable possibility that the accused could have deposited the sperm in the deceased’s anus as part of the murderous transaction”. There was no evidence to support this theory. The fact remains that there was only the trace amount of sperm found. The absence of evidence cannot be a legitimate basis for an inference of anal intercourse. There is no evidence of a larger deposit in the anal cavity and no evidence that the sperm cells were the appellant’s. All the evidence points the other way.

[10] In addition, the reviewing justice found that the circumstances supported committal on first degree murder based upon an “alternative scenario” of consensual sexual conduct not involving anal intercourse which escalated into a violent struggle that resulted in the victim being “strangled from behind with the [appellant] kneeling on the naked deceased’s back during the strangulation”. The reviewing justice based this theory on the premise that the initial consensual sexual activity “then became non-consensual and, ultimately, that the extreme violence took its highest form, that being the killing of the deceased. Indeed, it was the deceased’s physical resistance to the accused’s sexual conduct that triggered the victim’s violent death. Again, the deceased was naked in the bedroom, the struggle in the bedroom was extremely violent and the deceased was strangled from behind with the accused kneeling on the naked deceased’s back during the strangulation.” It is not apparent that this scenario was placed before the preliminary inquiry judge. In any event, it cannot support the order to stand trial for first degree murder. Once the anal intercourse theory is eliminated, there was no evidence of the fundamental premise that the initial sexual activity became non-consensual or that the deceased’s resistance to that activity triggered the murder. Contrary to the finding of the reviewing justice, aside from the actual act of murder there was no evidence of an extremely violent struggle.

[11] To the extent that the reviewing justice may have based his finding on an element of unlawful confinement, as counsel for the Crown has fairly conceded, there is no evidence to support the appellant’s committal based on the commission of an unlawful confinement.

[12] In summary, there was no evidence to support an order to stand trial for first degree murder on the ground that the appellant either sexually assaulted or unlawfully confined the deceased in the course of causing his death.

[13] Accordingly, the appeal is allowed, the order to stand trial on first degree murder is quashed and the appellant is ordered to stand trial for second degree murder.

Signed: “M. Rosenberg J.A.”

“S. Borins J.A.”

“K. Feldman J.A.”