Court of Appeal for Ontario

CITATION: R. v. Masterson, 2008 ONCA 481

DATE: 20080617

DOCKET: C46467

MOLDAVER, SIMMONS and ROULEAU JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

and

FRASER MASTERSON

Respondent

Jennifer Woollcombe for the appellant

Brian Greenspan and Jill Makepeace for the respondent

Heard and released orally: June 6, 2008

On appeal from the acquittal entered by Justice David Nadeau of the Superior Court of Justice, sitting with a jury, dated December 6, 2006.

ENDORSEMENT

[1] This is a Crown appeal from a directed verdict of acquittal on a charge of first degree murder. The trial proceeded for eleven days before Nadeau J. and a jury. At the conclusion of the Crown’s case and after forty-four witnesses had been called, the defence moved for a directed verdict of acquittal. The trial judge acceded to that request, withdrew the case from the jury, and entered a verdict of acquittal.

[2] At trial, no issue was taken with the fact that the deceased, Ronald Godin, had been murdered. The only real issue was whether the respondent was the person who killed him. On that issue, the case for the Crown was entirely circumstantial. Before us, the Crown maintained that the strength of its position lay not in individual pieces of evidence but in a series of facts summarized below that were unlikely to exist as a matter of coincidence:

(1) The deceased, Godin, had recently adjusted an insurance claim arising from a fire at the respondent’s home. In that capacity, he was pursuing repayment of a G.S.T rebate that had been owing by the respondent to the insurer for about a year. The evidence showed that the respondent had cashed the rebate cheque but had repeatedly denied to Godin that he had received it;

(2) As a result of a request from his supervisor, Godin was to make a cold call at the respondent’s home to pursue repayment of the G.S.T. rebate;

(3) On the morning of January 29, 2004 (the day on which Godin disappeared), there was a twenty-second telephone call from the respondent’s home to Godin. Telephone records show that the call was answered;

(4) Godin was last seen at a time when he could physically have made a surprise visit to the respondent’s home;

(5) When Godin’s body was found, there was a “to-do” note in his pocket reminding him to contact the respondent;

(6) Godin did not attend his regular dart game scheduled at Dante’s for 7:30 p.m. on the evening of the 29th, nor did he respond to a telephone message left between 6:00 and 6:15 p.m. that day by his friend Demers, with whom he had a standing arrangement to give a ride to the dart game;

(7) A car similar to Godin’s car was seen near the respondent’s home on two succeeding nights that may have coincided with Godin’s disappearance;

(8) Godin’s car, which was used to dispose off his body, was later found at a parking lot within walking distance of the respondent’s home;

(9) Paint chips found in the trunk of Godin’s car were chemically consistent with the paint on the respondent’s carport;

(10) When Godin’s body was found, a piece of chrome from the bumper of the respondent’s car was found imbedded in snow attached to Godin’s jacket; and

(11) The respondent for some reason chose to pay back the G.S.T. rebate hours after the police had released information that the blood found in Godin’s vehicle matched Godin’s blood.

[3] In sum, the Crown relied on evidence of motive, opportunity, forensic evidence and after-the-fact conduct to implicate the respondent as Godin’s killer.

[4] It is against this backdrop that the trial judge determined that the case should be removed from the jury’s consideration. His extensive reasons reveal that he was aware of the governing legal principles and the test that must be met for a directed verdict. However, in our respectful view, it is in the application of those principles that the trial judge went wrong. To be precise, he went further than he should have in the weighing process and ended up effectively trying the case. Moreover, in our view, he assessed the evidence on a piecemeal basis instead of considering it as a whole.

[5] The issue on the directed verdict motion was whether there was some evidence upon which a properly instructed jury could reasonably convict. For purposes of this case, that issue translated into the following question – was the evidence favouring the Crown capable of establishing, on the criminal standard, that the respondent was the person who killed Godin?

[6] In deciding that issue, the trial judge was to take the case for the Crown at its highest and in doing so, it was incumbent upon him to resolve competing permissible inferences in favour of the Crown. That he did not do. On the contrary, he addressed the evidence on a piecemeal basis, weighed the various inferences individually and ultimately resolved them in favour of the respondent as opposed to the Crown.

[7] By way of illustration, on the issue of motive, the trial judge considered the G.S.T debt to be a weak motive and one which the respondent would not likely act on to commit a “brutal murder”. As such, in the trial judge’s view, its probative value in identifying the respondent as the killer was “substantially reduced”.

[8] With respect, the question of motive and its strength were matters for the jury, to be assessed in the context of the case as a whole. Animus between the respondent and Godin over the G.S.T debt could, in our view, amount to evidence of motive.

[9] Another example is found in the trial judge’s treatment of the respondent’s “after-the-fact” conduct in settling his debt with the insurance company when he did. The trial judge found that the timing of the payment was consistent with a threat by the insurer that it would turn the matter over to its lawyers. He further found that the respondent’s ability at the time to pay his bills was inconsistent with the Crown’s theory that he was “under extreme financial difficulty”.

[10] In response, we point out that there was evidence on the record to the effect that the respondent had not received the letter from the insurer threatening legal action before he made the payment. Moreover, there was no evidence that the respondent was paying his bills at the relevant time as found by the trial judge. The fact that the after-the-fact conduct may have been subject to competing inferences is acknowledged. The trial judge’s selection of the version that favoured the respondent however, constituted error.

[11] The same can be said for the trial judge’s rejection of Ms. Lamothe’s evidence identifying a car similar to Godin’s car near the respondent’s home in and around the time of Godin’s disappearance. Acknowledging, as we do, that there were problems with Ms. Lamothe’s evidence, surely it was for the jury to decide if she was mistaken in her description of the car and the timing of the sighting. This, on our respectful view, is an instance where the trial judge effectively usurped the function of the jury.

[12] Other examples exist. Perhaps the most egregious is the trial judge’s treatment of the forensic evidence. Here, he virtually ignored the evidence that favoured the Crown’s position and chose instead to act on competing evidence and inferences that favoured the respondent. With respect, it was not for the trial judge to sort out how and under what circumstances paint chips consistent with paint from the respondent’s carport came to be on Godin’s trunk. More importantly, it was not for the trial judge to determine how a piece of chrome from the respondent’s bumper could have become attached to Godin’s jacket.

[13] Those were matters for the jury, to be assessed in the context of the whole of the evidence; they were not for the trial judge to resolve on his own.

[14] In sum, regardless of the ultimate strength of the Crown’s case, we are satisfied that had the trial judge applied the governing principles correctly, he would have found on the circumstantial evidence taken as a whole that it was open for a jury, properly instructed, to return a verdict of guilty.

[15] In the result, the appeal is allowed, the verdict of acquittal is set aside and a new trial is ordered.

Signature: “M. J. Moldaver J.A.”

“Janet Simmons J.A.”

“Paul Rouleau J.A.”