CITATION: R. v. Culham, 2007 ONCA 775

DATE: 20071113

DOCKET: C39913

COURT OF APPEAL FOR ONTARIO

MOLDAVER, SHARPE and BLAIR JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

TIMOTHY CULHAM

Appellant

Timothy E. Breen for the appellant

Roger A. Pinnock for the respondent

Heard and endorsed: November 8, 2007

On appeal from conviction by Justice R. Hugh Locke of the Superior Court of Justice, sitting with a jury, dated June 13, 2001.

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals from his conviction for first degree murder.

[2] The grounds of appeal relate primarily to alleged errors in the trial judge’s charge to the jury. Of these grounds, only one was raised before the trial judge. That is telling in this case. It leads us to conclude that experienced defence counsel [not Mr. Breen] was satisfied with the instructions that the appellant now contends, for the first time, amounted to reversible error.

[3] The main ground relates to the trial judge’s alleged failure to adequately explain the difference between murder and manslaughter, and in particular, to distinguish the mental elements between those offences. As well, the appellant alleges that the trial judge shifted the onus by suggesting that affirmative evidence of an absence of intention was necessary for the jury to return a verdict of guilty on manslaughter.

[4] We disagree. The trial judge correctly explained the mental elements for murder and manslaughter on numerous occasions in the charge. The specific passages to which the appellant refers do not, in our view, undermine these instructions when the charge is read as a whole, a point reinforced by the absence of any objection from trial counsel.

[5] The second ground relates to the trial judge’s instructions on after-the-fact evidence and the use the jury could make of it. We would not give effect to that ground.

[6] We see no merit in the submission that the trial judge improperly included items of evidence in the “after-the-fact evidence” basket that he should not have. The after-the-fact evidence in this case was not typical; rather it was directly relevant and had a direct bearing on the issue of planning and deliberation. The trial judge fully explained the position of the defence as to the inferences the defence urged the jury to draw from the after-the-fact evidence. Moreover, in the re-charge, following an objection from defence counsel, the trial judge adequately explained the need to be alert to other explanations as follows:

Please also remember the importance of your deciding whether the evidence that I point out relates to the act of murder that the Crown alleges that the accused did, and not some underlying criminal offence.

That instruction was sufficient in the circumstances.

[7] Third, the appellant submits that the trial judge erred in effectively instructing the jury that the defence theory that the deceased may have died of natural causes was unsupported by the evidence.

[8] We would not give effect to this submission. In the impugned passage, the trial judge made it clear to the jury that if they found such evidence, they were to consider it and in the final analysis, the burden rested on the Crown to prove that the death was attributable to culpable homicide. Moreover, throughout the charge, the trial judge repeatedly told the jury that they were the ultimate arbiters of the facts.

[9] Finally, we see no merit in the submission that the trial judge erred in failing to direct the jury to disregard the evidence of Mr. Ross concerning his “impression” that the deceased was fearful of the appellant. While the trial judge did not give a specific instruction relating to Mr. Ross, he told the jury that they were to ignore evidence of impressions given by all of the witnesses who reported conversations with the deceased.

[10] As for the submission that the Crown, in his closing address, improperly commented on the failure of the appellant to testify with his “show us the body” comment, we do not interpret that comment that way and in the circumstances, we are satisfied that it did not go beyond the limits of appropriate argument. In any event, we note that the trial judge told the jury on numerous occasions that the onus rested with the Crown and that there was no burden on the appellant to prove anything.

[11] That leaves the fresh evidence. In our view, it does not pass the fourth test in Palmer. Considered with the other evidence, it could not reasonably be expected to have affected the verdict. At best, the blood purge evidence could suggest a natural death but in this case, the circumstantial evidence pointing to culpable homicide was so powerful that the blood purge evidence could not reasonably be expected to have led to a different verdict. The fresh evidence application is denied.

[12] Accordingly, the appeal is dismissed.