Court of Appeal for Ontario

CITATION: R. v. Selvanayagam, 2011 ONCA 602

DATE: 20110921

DOCKET: C48547

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and Armstrong JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Mathiyalagan Selvanayagam

Appellant

Michael Dineen, for the appellant

Benita Wassenaar, for the respondent

Heard: February 16, 2011

On appeal from the conviction entered by Regional Senior Judge Edward F. Then of the Superior Court of Justice, sitting with a jury, dated April 1, 2006.

Feldman J.A.:

INTRODUCTION

[1] The appellant appeals his conviction for second degree murder. DNA analysis of blood left at the scene not belonging to the victim was strongly linked to the appellant with the chance of co-incidence being one in 19 trillion. Besides the blood evidence, the Crown also relied on four statements the appellant made to the police before and after he was arrested to show that he was lying when he said he did not go to the house where the murder occurred and he did not kill the victim. The appeal is based on the treatment of those statements by Crown counsel in his closing and by the trial judge in his charge to the jury.

FACTS

[2] The appellant had been a tenant living in the basement of the home of the deceased and her husband and two children at 89 Deanscroft Square in Toronto. The family slept on the second floor. The appellant moved out in August, 2000, but called to collect his mail from time to time.

[3] On December 29, 2000 at 10:35 p.m., the deceased’s husband left for his night shift job as an accountant at a hotel. That evening, the husband received a number of hang-up phone calls at work. He returned home at 7:30 a.m. and found his wife lying on the floor of the spare bedroom with blood all around. The children were asleep in another bedroom.

[4] When he left, his wife had been wearing a green shirt and pink fleece pants. When he found her, she was naked but covered with a blanket from the waist down. The fleece pants together with her underwear turned inside out were found in the same room.

[5] There was a large amount of blood on the bed and on the carpet. Small amounts of blood were also found on the walls of the hall between the bedroom and the bathroom. More blood was in the bathroom on the toilet, the toilet paper, the toilet handle, on towels and on the floor. It was later determined that the blood belonged not only to the victim, but some of it was from the appellant. The deceased’s husband testified that the blood was not there when he went to work that evening and that they cleaned the house every other day.

[6] The police found letters addressed to the appellant and to another tenant downstairs in the home. They examined the basement room where the appellant had stayed when he lived there. There was a broken window covered by a piece of drywall and a thumbtack. There was dust and cobwebs on the windowsill. Two fingerprints belonging to the appellant were found on the outside of that window. There were also two sets of footprints in the snow, one that led to the side of the house and one to the shed.

[7] The deceased was killed by 48 stab wounds from a knife or blade. The wounds were all over her body including many defensive wounds on her arms and hands. There was no evidence of any sexual encounter.

[8] DNA testing on the various blood stains found DNA consistent with the appellant’s DNA. The consistency was found at 9 loci, which meant the match was very strong. The expert evidence was that the chance that the blood found was also consistent with a randomly selected person was one in 19 trillion.

[9] The police interviewed the appellant on four occasions after the murder, the last one following his arrest. The first interview was on January 6, 2001, one week after the murder, once the police learned that the appellant had previously been a tenant in the deceased’s home. The appellant came to the door lightly dressed, giving the police the opportunity to look for any cuts or other injuries to his body; they saw none.

[10] He told the police on that occasion that he knew of no one who would have wanted to hurt the deceased, that he had placed the drywall in the basement window to block out the light, and that he would have left his fingerprints on the window when he cleaned it on occasion. He reported that his relationship with the family was fine and that the husband would sometimes help him fill out forms. He said that he used the basement and kitchen of the home.

[11] He said that on the night of the murder at 9:30 p.m. he went to Denison’s pub where he had formerly been employed, met friends and stayed until 1:30 a.m. He went home by subway, bus, then taxi, and arrived at around 3:00 a.m. He told the police that he had not been to the 89 Deanscroft Square address for about two months, but that since he moved out, he had gone back to pick up his mail two or three times, always calling first. He was asked if he had any more information, and did not mention that he had called the deceased the afternoon before the murder.

[12] The police came to interview the appellant a second time on January 19, 2001 after they had examined the deceased’s call display and found a call from the appellant at 5:47 p.m. the afternoon before the evening of the murder. The officer described the appellant as co-operative. When asked, the appellant acknowledged the call. He told the police that the deceased’s daughter had answered and passed the phone to the deceased. He said that he asked her if there was any mail for him and if he could come on Saturday to retrieve it. She told him that there was mail and that he could pick it up only Saturday morning because she was having a party. He told her he would call the next day to arrange another time.

[13] The third time the police came was several months later on December 14, 2001 to obtain a DNA sample, which the appellant agreed to give. He was again polite and co-operative.

[14] The appellant was arrested for first degree murder over one year later on February 6, 2003 after the DNA testing of the blood identified him. He was interviewed at that time and gave a cautioned statement. In that statement, he denied killing the deceased. He said when he lived at 89 Deanscroft, he never went to the second floor. He could not explain the presence of his blood at several locations at the murder scene. He denied calling the deceased the day before the murder to ask about his mail and said he did not remember what he had told the police about that in his January 19, 2001 interview. He also said he was not close with the deceased’s family and that when he lived there, he spent most of his time in his room.

[15] The trial began in February, 2006. The Crown led the appellant’s statements as part of its case.

[16] The appellant testified in his defence. His testimony was essentially exculpatory but there were some possible inconsistencies with previous statements. For example, he described a much closer relationship with the family of the deceased than he had previously acknowledged. He explained that he had earlier said he spent most of his time in his room because their schedules often did not overlap.

[17] Another discrepancy that the Crown focused on was the phone call. The appellant acknowledged the phone call regarding his mail. He said he had forgotten it when he was arrested in February, 2003, but he had told the police about it on January 19, 2001 when they asked him about it. In cross-examination his explanation for not remembering or acknowledging the call after his arrest was that once he was implicated, he denied the call.

[18] The third issue that the Crown pursued was the appellant’s story as to whether he had ever been on the second floor of the house. The appellant said he had gone there sometimes to wake the husband if there was a visitor and on two or three occasions when the husband, who was an accountant, had helped him with his taxes. He had never gone into the second-floor bathroom. Regarding his denial in his post-arrest statement that he’d ever been to the second floor, the appellant explained that he was afraid, that he did not think it related to the murder and did not understand the issue at the time. He said he denied being up there because he “had nothing to do with the incident.”

[19] The appellant was charged with first degree murder while committing a sexual assault. Although there was no forensic evidence of a sexual assault, the Crown’s theory was that the appellant’s motive was sexual assault, and that his DNA identified him as the murderer. He had first attempted to enter by the basement window, then came to the front door on the pretext of picking up his mail. Besides the DNA evidence, the Crown also relied on the contradictions in the appellant’s statements and testimony, which both undermined the credibility of his denial and amounted to lies that were evidence of his guilt.

[20] The defence position was that another person had entered to steal jewellery and when he was confronted by the deceased, he killed her. The appellant questioned the conclusiveness of the DNA evidence and pointed to his co-operation with the police as evidence of consciousness of innocence.

ISSUES ON THE APPEAL

[21] The appellant was convicted of second degree murder, the jury having found that the Crown did not prove a sexual assault beyond a reasonable doubt.

[22] The appellant raises two issues, both alleging errors by the trial judge in relation to the proper use the jury was entitled to make of his pre-trial statements: (1) the trial judge failed to give the jury an “O’Connor instruction” explaining that mere disbelief of an accused’s exculpatory statements could not be used by the jury as evidence of guilt unless there was independent evidence that the accused had fabricated his statements; and (2) the trial judge incorrectly told the jury that the appellant’s prior inconsistent exculpatory statements were not evidence unless he had adopted them in his trial testimony. He used as examples the exculpatory statements that the appellant never went to the second floor of the deceased’s house and that he did not make the phone call to the deceased.

[23] The appellant submits that the jury would have been looking for evidence beyond the DNA identification in order to convict. Because of these errors, if the jury disbelieved his exculpatory statements and denial of guilt, they may have used that disbelief as evidence against him. Also, he submits, the trial judge improperly removed from their consideration, as evidence in his favour if they believed it, the exculpatory statements he made pre-trial.

[24] Therefore, he submits, the cumulative effect of the errors requires the court to order a new trial.

Issue 1 – Failure to Give an O’Connor Instruction

[25] Part of the position of the Crown was that the appellant’s lies amounted to after-the-fact conduct indicating consciousness of guilt. In pre-charge discussions, the issue of instructing the jury on the law regarding after-the-fact conduct indicating consciousness of guilt and consciousness of innocence was discussed. Defence counsel asked the trial judge to instruct the jury that the appellant’s co-operation with the police in his statements and in voluntarily giving his DNA indicated consciousness of innocence.

[26] Ultimately, the trial judge decided that the fairest approach would be not to give an after-the-fact conduct charge either way, but he outlined for the jury the positions of the Crown and defence on the issue. Defence counsel did make an objection to the charge based on the failure to give an O’Connor instruction that the jury could not use the appellant’s lies, if they found them to be so, as positive evidence of guilt unless they were satisfied that he had fabricated his statements. See R v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.), at paras. 36-38.

[27] The law, briefly stated, is that the trier of fact may not treat a disbelieved exculpatory statement as positive evidence of guilt unless there is evidence, independent of the fact of falsity itself, that the statement was concocted or deliberately fabricated. The rationale for the rule was explained by Doherty J.A. in R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 40 O.R. (3d) 198 (C.A.), at p. 203 as follows:

If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused's version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown's obligation to prove an accused’s guilt beyond reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused’s version of events. [References omitted.]

[28] Procedurally, where the Crown wishes to have the jury draw the inference of guilt from an accused’s statements, then at the admissibility stage it must show the court sufficient evidence of concoction that is independent of the falsity of the statement, to demonstrate fabrication. See R. v. Hall, 2010 ONCA 724, at para. 164. Otherwise, the Crown is limited to putting the statements to the accused in cross-examination, if the accused testifies at the trial. That procedure was not followed in this case before the Crown was allowed to lead the statements in evidence as part of its case. However, the accused testified in his own defence, so that the statements were also put to him in cross-examination.

[29] In his charge, the trial judge instructed the jury to consider the appellant’s contradictions in the context of assessing his credibility only, rather than as evidence of consciousness of guilt. He gave a W.(D.) charge instructing the jury that even if they disbelieved the appellant, they had to look to the other evidence to determine whether the Crown had met its burden of proof of guilt beyond a reasonable doubt. See R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 758.

[30] The trial judge did not give an O’Connor charge that would have told the jury that they could not use disbelief of the accused as evidence of guilt unless they found independent evidence that he had fabricated his statements. In R. v. Polimac (2010), 2010 ONCA 346, 254 C.C.C. (3d) 359 (Ont. C.A.) where this same issue arose, Doherty J.A. observed at para 106:

The trial judge could have given an instruction following the O’Connor model. The question on appeal, however, is not whether an O’Connor instruction would have been appropriate, but whether the instruction given prejudiced the appellant’s right to a fair trial. I do not think it did. [Emphasis added.]

[31] As was the case in Polimac, I think the trial judge’s decision not to give the O’Connor instruction in this case was a fair one. As in Polimac, there was evidence that was independent of the falsity of the impugned statements that the jury could have considered on the issue of concoction, had they been so instructed.

[32] The appellant admitted that he lied to the police in his post-arrest statement when he told them he had never been on the second floor of the deceased’s house. His explanation for that lie was basically that once the police told him the murder had occurred on the second floor, he did not equate his going to the second floor at another time as related to the incident or the question they were asking. If the jury rejected that explanation, they could conclude that he had fabricated that answer to distance himself from the murder. The same analysis could apply regarding the appellant’s failure to acknowledge his phone call to the deceased on the afternoon before the murder. Although he admitted he made the call when the police confronted him with the phone records on January 19, 2001, he denied it in his post-arrest statement in February, 2003. His explanation was that at that time he denied it because the police were then implicating him in the murder. Again, if the jury rejected that explanation and concluded that the appellant had fabricated his denial, they would have been entitled to treat his false statements as consciousness of guilt evidence.

[33] Because this evidence of possible concoction existed, it would not have helped the appellant to have it outlined to the jury by the trial judge. As Doherty J.A. found in Polimac, such an instruction would have called to the jury’s attention the evidence of concoction, and the conclusion that it constituted evidence of consciousness of guilt. Instead, the jury was encouraged to consider the appellant’s evidence in the context of a credibility analysis, and in accordance with W.(D.), if they rejected the appellant’s denial of guilt on that basis, they were told that they still had to evaluate the evidence of guilt presented by the Crown, and determine, based on that evidence, whether the Crown had proved its case beyond a reasonable doubt. As a result, I do not view the decision not to give an O’Connor instruction as an error in all the circumstances of this case. Had this been a case where there was no evidence of concoction or fabrication of an alibi or exculpatory statement by an accused, the O’Connor charge would have been necessary to warn the jury that they could not use mere disbelief of an accused as positive evidence of guilt or of consciousness of guilt.

[34] As part of this first objection, the appellant also submits that the trial judge should have specifically pointed out to the jury that for some of the statements, no Tamil interpreter was provided and this may have affected the appellant’s understanding and his responses. Although such a reminder could have been given, no objection was made to the charge on that basis, although many objections were raised by trial counsel. The failure to object can be taken as an indication that defence counsel did not consider this to be an important omission at the time.

Issue 2: Prior Inconsistent Statements by the Appellant

[35] I agree with the appellant that the trial judge made an error of law when he told the jury that the rule regarding the evidentiary value of prior inconsistent statements applies to an accused who testifies. In error, the trial judge told the jury that they could not use as evidence a prior exculpatory statement made by the appellant if he did not adopt it in his court testimony.

[36] He then gave two examples. The first was in the February 6, 2003 post-arrest statement where the appellant said he had never been on the second floor of the 89 Deanscroft house, then acknowledged in his trial testimony that he had been there a number of times in the past but not in the bathroom. The trial judge told the jury that because the appellant had repudiated his February, 2003 statement and not adopted it at trial, they could not use that statement as proof that he had never gone to the second floor of the home. However, they could use the inconsistency to assess the appellant’s credibility in his evidence given at the trial.

[37] The second example was from the same statement where the appellant said he did not remember making the telephone call to the deceased regarding the mail on December 29, 2000, but at trial he said he did make the phone call. The trial judge told the jury that because the appellant did not adopt his previous statement, they could not use that statement as proof that that he did not make the call, but again, they could use the inconsistency to assess the appellant’s credibility at trial.

[38] “An accused’s out-of-court-statements constitute evidence both for and against that accused: S. Casey Hill et al., McWilliams’ Canadian Criminal Evidence, 4th ed., looseleaf (Aurora, Ont.: Canada Law Book, 2003) at para. 7:160.10”: see Polimac at para. 85. The issue of the use that can be made of an accused’s statements that contain both inculpatory and exculpatory elements was recently discussed by the Supreme Court of Canada in R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111. The court there confirmed that the Crown cannot tender only the inculpatory portion of an accused’s out-of-court statement that also contains exculpatory portions, and that the exculpatory portion is also “substantively admissible in favour of the accused”. (para 37)

[39] Therefore, in theory, the jury could have ignored the appellant’s evidence at trial, although it was corroborated by the phone record in the case of the phone call and by the deceased’s husband in the case of the appellant having been on the second floor a number of times, and accepted the appellant’s earlier exculpatory statements to the contrary.

[40] However, in my view, that was merely a theoretical possibility given the appellant’s trial testimony and the corroboration referred to. Furthermore, the DNA evidence, if accepted, clearly showed that the appellant had been to the second floor of the home and left his blood, and the phone record showed that the phone call was made from his phone. Therefore, although an error was made, it could have had no practical effect.

[41] On the other hand, the two examples of prior inconsistent statements used by the trial judge as illustrations of exculpatory evidence the jury could not use, but of contradictions that they could use, could have had some prejudicial effect. Trial counsel made a specific objection to this portion of the charge. These two examples underscored to the jury the appellant’s credibility problems and may thereby have caused some prejudice to the appellant.

Application of the Proviso

[42] In the circumstances, Crown counsel on the appeal submits that to the extent an error of law was made, this is a proper case for the application of the proviso provided by s. 686(1)(b)(iii) of the Code, on the basis that “no substantial wrong or miscarriage of justice has occurred.”

[43] This was an overwhelming case based on the DNA evidence from the blood that the appellant left both in the room where the deceased was killed and in the bathroom, where the killer apparently attempted to clean up. The appellant also had a connection to the house and the family and had telephoned the home hours before the murder.

[44] The acquittal by the jury on the first degree murder charge, rejecting the allegation of sexual assault, showed that the jury was not overwhelmed by any credibility problems the appellant may have had, but looked for positive evidence of the elements of each charge to substantiate a conviction.

[45] I would therefore apply the proviso and dismiss the appeal.

Signed: “K. Feldman J.A.”

“I agree John Laskin J.A.”

“I agree Robert P. Armstrong J.A.”

RELEASED: “JL” SEPTEMBER 21, 2011