COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Uhrig, 2012 ONCA 470
DATE: 20120703
DOCKET: C48468
Rouleau, Watt and Pepall JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Dennis Uhrig
Appellant
Stephen F. Gehl, for the appellant
Susan Magotiaux, for the respondent
Heard: June 26, 2012
On appeal from the conviction entered by Justice E. Gerald Taylor of the Superior Court of Justice, sitting with a jury, on December 12, 2007.
ENDORSEMENT
[1] The appellant seeks to set aside his conviction of first degree murder on two grounds:
i. that the conviction is unreasonable and cannot be supported on the evidence adduced at trial; and
ii. that police background checks on members of the jury panel amounted to an abuse of process and warrant a new trial.
[2] We would not give effect to either ground of appeal.
Unreasonable Verdict
[3] The case for the Crown at trial was entirely circumstantial. It included evidence of motive, opportunity, and access to instruments of the kind used to cause the deceased’s death.
[4] The deceased and the appellant were neighbours, familiar with each others’ routines and habits. The appellant was involved in an intimate relationship with the deceased’s wife whom he had asked to leave the deceased and join him. The deceased’s wife refused to do so.
[5] On the evening on which the deceased was killed, he was alone in his cottage. The appellant knew this and also knew that the deceased’s wife was spending the night elsewhere. The appellant had a key to the deceased’s cottage and knew well its layout. He was well-known to the family dog. There were no signs of forced entry to the cottage.
[6] The deceased was killed in his bed. The cause of death was blunt force trauma, consistent with a blow to the head from a baseball bat. About a week before the deceased was killed, the appellant had a baseball bat as he and the deceased’s wife were waiting up at night to catch some vandals who had damaged properties in the area.
[7] About two days after the deceased was killed, police officers saw the appellant stop his van on a county road near the cottages, get out of the vehicle, walk briskly into an adjacent bush, and return a few seconds later. The area where the appellant stopped was near where a baseball bat with the deceased’s blood was found in a cornfield only 21 metres off the roadway.
[8] The appellant was interviewed by the police. The interview was video recorded and played for the jury. The appellant denied killing the deceased and denied any intimate relationship with the deceased’s wife.
[9] At the conclusion of the Crown’s case at trial, the appellant did not seek a directed verdict of acquittal. He did not testify at trial.
[10] A reasonable verdict is a verdict that a properly instructed jury, acting judicially, could reasonably have rendered; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36.
[11] In this case, the final instructions of the trial judge made it absolutely clear that the Crown’s case consisted entirely of circumstantial evidence. The jurors were told twice that in order to find the appellant guilty as charged, they had to be satisfied that his guilt was the only reasonable inference from the evidence considered as a whole. They were told, twice, although they need not have been, that proof beyond a reasonable doubt was much closer to absolute certainty than to probable guilt. The final instructions on the essential elements of the offence, as with the instructions as a whole, were vetted with and approved by counsel prior to delivery. No objection was taken to the charge.
[12] In our view, the cumulative effect of the circumstantial evidence adduced by the Crown was such that a properly instructed jury, acting judicially, could reasonably have found
i. that the appellant unlawfully killed the deceased;
ii. that the unlawful killing was murder; and
iii. that the murder was planned and deliberate.
[13] When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.
[14] We would not give effect to this ground of appeal.
Jury Vetting
[15] The second ground of appeal focuses on the conduct of the police in vetting members of the jury pool for criminal records and outstanding criminal charges. Crown counsel at trial did not request these checks, knew nothing about them, and saw no results. As it turned out, the checks revealed no prospective jurors with criminal records or outstanding criminal charges.
[16] The appellant contends that the practice of vetting jurors for criminal records and outstanding criminal charges, without more, amounts to an abuse of process, thus causing a miscarriage of justice and requiring a new trial.
[17] We do not agree.
[18] Assuming the admissibility of the fresh evidence about the police checks of prospective jurors, no per se rule elevates such conduct to the standard required to establish an abuse of process. These checks had no impact on the fairness of the trial. For jury selection, the playing field remained level.
[19] This ground of appeal fails.
Conclusion
[20] For these reasons, we dismissed the appeal.
“Paul Rouleau J.A.”
“David Watt J.A.”
“S.E. Pepall J.A.”