COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tehrankari, 2012 ONCA 718

DATE: 20121026

DOCKET: C50967

O’Connor A.C.J.O., Weiler and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Allen Tehrankari

Appellant

Allen Tehrankari, acting in person

Joseph Di Luca, as amicus curiae

Greg Skerkowski, for the respondent

Heard: September 11, 2012

On appeal from the conviction entered on March 13, 2009 by Justice Colin McKinnon of the Superior Court of Justice, sitting with a jury.

Weiler J.A.:

A. Overview

[1] The appellant was convicted of the first degree murder of his sister-in-law, Ms. Barbara Galway.

[2] The appellant is self-represented. He discharged his counsel at his first trial, which ended in a mistrial. The trial judge made arrangements for the appellant to receive assistance from amicus at his second trial. On his behalf, amicus seeks a new trial on the basis that the trial judge erred in refusing to allow the jury to consider the appellant’s third party suspect defence and related grounds. Even if the trial judge correctly ruled that the third party suspect defence was mere speculation, amicus submits that a new trial is required because of unfairness caused to the appellant by a limiting instruction given mid-trial by the trial judge. Specifically, the trial judge read to the jury portions of his ruling explaining why he had not allowed the appellant’s proposed third party defence to be put before them, including the following statement:

All of the evidence points to the accused and away from Patrick Galway [the third party suspect].

[3] In addition, the appellant himself raises numerous grounds of appeal.

[4] For the reasons that follow, I would agree with the trial judge that there was no air of reality to the third party suspect defence because there was no admissible evidence linking the third party suspect to Ms. Galway’s death. I would also dismiss the other grounds of appeal as I find them devoid of merit. Accordingly, I would dismiss this appeal in its entirety.

B. Evidentiary Background

[5] The body of Ms. Galway was found on January 6, 2005, on a remote trail in Ottawa, burned beyond recognition. She was identified by dental records on January 7, 2005. The appellant was arrested that same day.

[6] At the time of her death, Ms. Galway was separated from her husband of over twenty years, Patrick Galway, a real estate lawyer. She and Mr. Galway had concluded a financial settlement and she was again working at his office. She was romantically involved with two other men, Josephus Crooy and James Gardiner.

(1) The Crown’s Evidence

[7] The Crown’s case linking the appellant to Ms. Galway’s death included the following evidence:

(1) Between December 29, 2004 and December 31, 2004 the appellant called Ms. Galway over thirty times. Ms. Galway told the men with whom she was involved that the appellant was becoming “sweet” on her, and had told her that he “loved her eyes.” She told them she believed the appellant was falling in love with her, that she was aware of problems in his marriage to her sister, and that she intended to speak with the appellant about his unwanted attention. Following this disclosure, Ms. Galway wrote an email to Mr. Crooy on December 31, 2004, indicating that she had spoken to the appellant and that, “everything is set right. He was VERY apologetic and has begged me to forgive him for putting me in that position.”

(2) On January 1, 2005, Ms. Galway gave the appellant a bank draft for $9,600 to assist him in setting up a small business. The appellant was overheard telling Ms. Galway that he could not accept it. On January 4, 2005, Ms. Galway withdrew $9,600 in cash from her bank by cashing the bank draft that she had originally made payable to the appellant. This money was never found.

(3) Ms. Galway told both Mr. Gardiner and Mr. Crooy that she planned to go to the appellant’s home on January 5, to lend him money and to visit her niece, the appellant’s daughter.

(4) The appellant acknowledged that he was to meet with Ms. Galway on January 5, 2005. However, he testified that she telephoned him from a pay phone between 2:30 and 3:00 p.m. to say that she would be late because she was driving a friend to the airport and would arrive around dinner time. He said she never arrived.

(5) On January 5, the appellant’s neighbour saw him dragging something wrapped in a dark coloured tarp, with red colouring at the top, outside his house. It appeared heavy.

(6) Later that day, neighbours saw the appellant carry a mattress with what looked to be a large red stain on it towards his van. Police subsequently located a discarded mattress matching a box spring in the appellant’s residence with a stain on it six kilometres from the appellant’s residence. Blood on the mattress matched Ms. Galway’s DNA profile. Ms. Galway’s blood was also discovered in the appellant’s van.

(7) Ms. Galway’s car was found abandoned at the Ottawa Airport, parked illegally at a bus stop at around 5:00 p.m. on January 5, 2005.

(8) The appellant left a voicemail for Ms. Galway on January 6 reiterating that she had called him the day before to inform him she was going to the airport and would be late. The appellant informed Mr. Crooy of Ms. Galway’s phone call about driving her friend to the airport. He also left messages for Mr. Gardiner and several police officers indicating that Ms. Galway’s brother and father were told by Ms. Galway that she would “disappear one day and go wherever no one can hear from her.”

(9) Ms. Galway’s body was visually and microscopically examined by Dr. Johnston, the Crown’s pathologist, on January 7, 2005. There was evidence of post-mortem animal predation to the anus and ankle, but not to the vagina. A vaginal swab revealed the presence of the appellant’s semen.

(10) The appellant was photographed immediately upon his arrest. These photographs reveal fresh scratches in the area of his belly button, groin, and hip area, and a small mark on one finger.

(11) The appellant was captured on video throwing a bag into a garbage bin at the Home Depot on January 7, 2005. When the police recovered the bag, they discovered it contained a pair of underwear, on which the appellant’s semen was found, and a typed letter purportedly written by Ms. Galway to her sister, the appellant’s wife. In this letter, Ms. Galway tells her sister she is planning to disappear and not to worry about her. She also commends her on the strength of her marriage to the appellant, and calls the appellant “the kind of man that women in my shoe would dream of.” This grammatical error was made by the appellant during his testimony.

(12) At the appellant’s residence, investigators found evidence of an extensive clean-up. An area rug was found in the hallway covering a piece of carpet that had been cut away. Upon searching the appellant’s neighbour’s garbage bins, the police located carpet fibres matching those in the appellant’s home and containing traces of Ms. Galway’s blood.

(13) Dr. Johnston testified that Ms. Galway’s hyoid bone (a u-shaped bone in the neck which supports the tongue) was fractured and there was blood found in her nostrils and sinuses. He opined that this evidence was consistent with the application of force to her neck prior to her death. Swabs taken from various locations throughout the appellant’s house tested positive for blood matching Ms. Galway’s DNA profile, including the bathroom door frame, the bathroom wall, the shower curtain, the bathroom vanity, the garbage pail in the bathroom, the master bedroom door frame, the wall between the master bedroom and bathroom, and the railing in the upper hall.

(2) The Appellant’s Evidence

[8] The appellant testified that his frequent telephone conversations with Ms. Galway were about stock trading.

[9] His account of what happened on January 5, the day Ms. Galway was killed, is as follows. In the morning his daughter defecated and spread her feces on a mattress. He was unable to clean the mattress and decided to consult with his wife about discarding it when she returned from work.

[10] After he received a telephone call from Ms. Galway telling him she would be late arriving at his home, he went out with his daughter and returned between 3:30 and 4:30 p.m. While his daughter was watching television downstairs, he went upstairs to check the stock market on his computer. At the entrance to his computer room, an unknown person placed a hand on his left shoulder and something else behind his head, whispering, “[d]on’t do anything, don’t say anything, if you know what is good for you or your child.”

[11] Unknown persons then blindfolded the appellant, laid him down on his right side, and bound him in a manner that caused his legs to be spread apart. These persons then removed his pants and underwear, inserted one of their fingers into his rectum, milked his prostate, and caused him to discharge semen. At some point during the assault, the appellant struggled and received a “blow to [his] face.” His nose began to bleed.

[12] The appellant called these intruders “DNA thieves”. After extracting his semen, the DNA thieves threatened to harm his family if he said anything to anyone. They also whispered that he should stop supporting Ms. Galway. They said something like, “[y]ou were warned once and this is the second time. If you know what is good for you – we know where you are, we know where your family is, we know where you work – leave Ms. Galway alone.” The appellant took this to mean, “do what you’re told, not mind Ms. Galway’s business.”

[13] The appellant testified that the warning given by the DNA thieves echoed an earlier threat made to him sometime between November and December of 2004 by Ms. Galway’s husband, Patrick Galway. The appellant had supported Ms. Galway’s decision to separate from her husband in August of 2004. Later that fall, Mr. Galway allegedly threatened the appellant, stating, “[i]f [you know] what is good for you and your family, leave – stop supporting Barbara, leave Barbara alone.” At another point, the appellant added that Mr. Galway had said, “I know that you have a record[^1] and I know everything about you ...If you know what is good for you and your family, leave it alone.”

[14] After the DNA thieves threatened the appellant, they instructed him to wash his face and place the mattress that his daughter had defecated on in his vehicle and he did so. The DNA thieves told the appellant they were going to borrow his vehicle but assured him they would return it. They then left his residence.

[15] The appellant attempted to shower and wash the blood from his nose, but he heard his daughter call for him. He was holding his nose and coming out of the bathroom when his daughter startled him, causing him to let go of his nose and to sneeze. Blood dripped on to the carpet outside the bathroom. When the appellant’s wife came home, he told her about his nosebleed and she attempted to clean the blood stains.

[16] Later that evening, the appellant went to check the parking lot where he kept his vehicle parked. As he walked toward the lot, he saw a flashlight blinking in his direction. He walked towards the light and found his vehicle, but the person who had flashed the light was gone. The appellant drove his vehicle into his parking spot.

[17] The next day, the appellant also attempted to clean up the blood from his nosebleed. He also washed the carpet, although he did not see any blood on it.

[18] The appellant testified that the DNA thieves must have stolen his garbage, planted the items found in the bag, including the semen found on his underwear, and planted the bag in the garbage can at the Home Depot. Similarly, the appellant testified that the DNA thieves could have put his semen in the deceased’s vagina after they killed her. Alternatively, he submitted that the police were involved in the fabrication of evidence.

[19] The appellant further testified that he did not tell the police about the DNA thieves or Mr. Galway’s involvement in the murder because he was afraid of endangering the lives of his family. At trial, however, he felt safe disclosing the existence of the DNA thieves because it would be obvious that Mr. Galway was involved in the murder if they acted on their threats.

C. THE LEGAL ISSUES

(1) The Third Party Suspect Issue

[20] The appellant’s entire defence was, basically, that a third party, Patrick Galway, could have committed Ms. Galway’s murder or had it committed by the DNA thieves.

[21] The appellant brought a pre-trial motion to lead third party suspect evidence in November, 2008. At that time, he did not point to any evidence of a connection between Patrick Galway and the alleged DNA thieves who entered his home. Rather, he relied on the following evidence as giving an air of reality to his third party suspect defence, set out at para. 8 of the Crown’s factum:

• Patrick Galway had been married to the deceased for 21 years and paid her a lump sum of $250,000 following their separation. The deceased engaged in a number of extra-marital affairs leading to the break-up of the marriage;

• Patrick Galway and the deceased had mutual life insurance policies in the amount $100,000;

• The deceased’s 1991-1992 diary contained an entry dated April 20, 1991, in which she complained that Patrick Galway had kicked her in the tailbone. Another entry stated that she reported lower back pain to her family physician on May 22, 1991. This visit was confirmed by independent medical records;

• The deceased emailed her brother David on November 16, 2004, stating that “to be honest I feel a bit betrayed by you right now. You are willing to forget how abusive [Patrick Galway] was to me for so many years”;

• Mr. Crooy testified at the preliminary inquiry that the deceased had informed him that she had suffered physical, verbal and emotional abuse during the marriage, although it had ceased five or six years prior to Mr. Crooy meeting the deceased in 2003 or 2004;

• The deceased’s medical records relating to a visit to her doctor on March 29, 2004, stated: “initially in marriage was abused (not any more) – not in three to four years – and did not have maturity to deal with it.”

[22] The trial judge dismissed the appellant’s third party suspect application, holding that aside from an “extremely tenuous” motive, there was virtually no evidence connecting Mr. Galway to the crime. Having not established a sufficient evidentiary basis to do so, the appellant was ordered not to call evidence regarding a third party suspect’s involvement in the murder.

[23] After the close of the Crown’s case, the appellant renewed his request to put an alternate suspect defence before the jury. He testified that there were additional items of evidence not submitted during the initial alternate suspect application that tended to suggest that Mr. Galway had arranged for the deceased’s murder, including:

• The similarity of the threat made to the appellant by Mr. Galway and the threat made by the DNA thieves during his assault, including their comment that he had been “warned once, this is the second time”;

• The fact that Mr. Galway left his office half an hour after Ms. Galway on the day she went missing, and there is no evidence of his whereabouts during this time;

• Evidence of a neighbour that she saw two people near the appellant’s house around the day he claimed to have been attacked by the DNA thieves;

• The fact that three types of DNA were found on Ms. Galway’s watch, none of which matched the appellant.

[24] Ultimately, after being advised by amicus that he might be subject to cross-examination on the affidavit he then proposed to file, the appellant withdrew his request to the trial judge to reconsider his ruling.

[25] However, in defiance of the trial judge’s order that he not call evidence regarding a third party suspect’s involvement in the murder, the appellant then testified before the jury that he had made a connection in his own mind between the threat made by the DNA thieves and an earlier threat made to him by “someone” else, but he was “forbidden to tell [the jury] his name.” He also explained that the reason he had not told his wife about the visit by the DNA thieves was because her life and that of his daughter was in danger.

[26] After objection by the Crown, a discussion ensued in the absence of the jury during which the appellant lost his temper and became verbally abusive towards the trial judge. The trial judge adjourned, indicating he expected an apology the next day. The next day the appellant apologized for his breakdown but indicated that his apology did not extend “to the person of Mr. McKinnon.” The appellant ultimately agreed he would not name Patrick Galway as a suspect unless the Crown provoked such an answer in cross-examination.

[27] During cross-examination, the Crown asked the appellant when he came to understand that the DNA thieves were connected with Ms. Galway’s disappearance. The appellant responded that when his wife told him that Patrick Galway was demanding $10,000 from her or he would sue them for her wrongful death, he “connected the dots” and realized that Patrick Galway had killed the deceased. He then began shouting that Patrick Galway had killed his wife and gained $350,000[^2] from her death. The jury was excused.

[28] The appellant made it clear he had no intention of abiding by the trial judge’s alternate suspect ruling, and again engaged in a vituperative outburst towards the trial judge. The trial judge then warned the appellant that if he continued to disobey the court’s order, the trial judge would inform the jury of his pre-trial ruling that there was “no evidence to support [the appellant’s] assertion that Patrick Galway was a participant in the murder of his own wife.”

[29] When the jury returned, and the appellant returned to the witness box to complete his cross-examination, he refused to answer the Crown’s questions. Instead, he made a speech explaining Mr. Galway was responsible for the murder because he stood to gain $350,000 and had a history of abusing the deceased. The appellant also alleged that Mr. Galway collaborated with the Crown in destroying some of the deceased’s diaries after the first trial.

[30] He told the jury that Mr. Galway had given a statement to the police on January 7, 2005 naming the appellant as a suspect in Ms. Galway’s disappearance, prior to her body being identified. He explained that Mr. Galway understood the law and knew the appellant could be easily framed for Ms. Galway’s death because the appellant had a criminal record for armed robbery. He also testified that he had received similar threats from both Mr. Galway and the DNA thieves.

(2) The Trial Judge’s Mid-Trial and Closing Instruction

[31] In response to the appellant’s insistence on putting the third party defence before the jury, the trial judge immediately instructed them not to consider Mr. Galway as an alternate suspect. As part of his instruction, the trial judge read to the jury portions of his ruling on the alternate suspect application, including the following:

All of the evidence points to the accused and away from Patrick Galway. There is a complete lack of nexus, as the authorities require. The proposed evidence is completely speculative and conjectural and would hopelessly confuse the jury. In the result, no evidence may be led alleging Patrick Galway to be a third party suspect. Such evidence would be extremely prejudicial and have no probative value.

[32] He concluded his instruction by saying:

That was my ruling. And it's on that basis that I ruled this evidence inadmissible. Mr. Tehrankari has insisted that he put that story in front of you; it’s there. I've now given you my reasons as to why it’s inadmissible and I am instructing you to disregard the evidence.

[33] At the conclusion of the trial, the trial judge again instructed the jury not to consider Mr. Galway as a third party suspect in his charge to the jury, concluding, “there is no admissible evidence to support that assertion.”

D. Did the trial judge err in instructing the jury not to consider the third-party suspect evidence?

[34] For the purposes of this appeal the panel agreed to consider all of the evidence from the preliminary application, the renewed application that was ultimately withdrawn and the appellant’s statements before the jury in determining whether the trial judge ought to have allowed the third party suspect defence to be left to the jury.

(1) Governing Principles

[35] An accused charged with a crime is entitled by way of defence to adduce evidence that a third party, not the accused, committed the crime. The evidence must meet the test of relevancy and must have sufficient probative value to justify its reception. In order to be relevant and probative, the evidence must connect the third person with the crime. If there is an insufficient connection between the third person and the crime, the evidence will lack the requisite air of reality: R. v. McMillan (1975), 1975 CanLII 43 (ON CA), 23 C.C.C. (2d) 160, aff’d 1977 CanLII 19 (SCC), [1977] 2 S.C.R.824, at pp. 167-168; R. v. Grandinetti, 2005 SCC 5, 191 C.C.C. (3d) 449, at paras. 46-48.

[36] Evidence of a violent disposition or animus towards the deceased, standing alone, will not meet the required threshold. However, if there is evidence that the third person had a motive to commit the crime or threatened the deceased and had the opportunity to carry out the crime, then the evidence of propensity may have probative value: R. v. Murphy, 2012 ONCA 573, at para. 21; R. v. Baltrusaitis (1996), 31 W.C.B. (2d) 184;R. v. McMillan, at p.168.

[37] The evidence may be direct or circumstantial. Inferences based on the evidence may be drawn, but speculation is not permitted. The evidentiary burden on the accused is discharged if the defence shows that there is some evidence upon which a reasonable, properly instructed jury could acquit based on the proposed defence: R. v. Grandinetti, at paras. 47-48; R. v. Fontaine, 2004 SCC 27,[2004] 1 S.C.R. 702, at para. 70.

[38] This court has recently held that where an accused proposes to call direct evidence from a third party who is expected to admit culpability for the offences charged, this proposed evidence itself is sufficiently probative to establish an air of reality to the third party defence. In other words, the proposed direct evidence of the third party represents the requisite nexus between that third party and the crime, and it is an error to require the accused to show more before allowing the third party witness to be called: R. v. Murphy, at paras. 20-23.

(2) Did the trial judge properly apply the governing principles?

[39] The core of the argument put forward by amicus is contained in para. 51 of his factum. He submits that “the trial judge erred by failing to appreciate that once the Appellant testified before the jury that the DNA thieves uttered a threat that contained a factual linkage to an earlier threat made by the alternate suspect to the Appellant, the air of reality threshold had been met and the alternate suspect defence had to be left with the jury.”

[40] In other words, amicus accepted that the appellant’s first alternate suspect application was properly rejected, in light of the legal principles described above, as containing only tenuous and circumstantial evidence of Mr. Galway’s propensity or motive. However, the appellant’s additional direct testimonial evidence about the threats, together with the previously submitted circumstantial evidence, provided a sufficient evidentiary basis to justify the third party defence being left with the jury. Amicus argues, in short, that the appellant in his testimony provided direct evidence which, if believed, implicated Mr. Galway.

[41] I disagree with this submission. Even accepting the appellant’s testimony as true, there is no direct evidence that Mr. Galway orchestrated this murder. The direct evidence in the appellant’s testimony is that the DNA thieves came into the appellant’s house, took the DNA sample, and uttered a threat to him. The evidence that the appellant received a threat from Mr. Galway in November or December of 2004 is also direct evidence.

[42] However, the evidence that the appellant drew a connection in his mind between the threat made by Mr. Galway and what the DNA thieves said is not direct evidence of a nexus between Mr. Galway and the thieves. Rather, it is direct evidence of the appellant’s belief in such a nexus. The alleged threat uttered by the DNA thieves contained no factual linkage to the earlier threat made by Mr. Galway. This is not a case like R. v. Murphy, where the appellant sought to call direct evidence from the third party suspect in anticipation that the third party would accept responsibility for the crime. There was never any possibility that Mr. Galway would testify and admit culpability.

[43] The question is whether, based on the alleged similarity of the threats and a statement by one of the DNA thieves to the effect that the appellant had “been warned once before,” a permissible inference may be drawn connecting Mr. Galway to the deceased’s death. For the following reasons, no such inference can be drawn.

[44] First, even if the appellant’s evidence respecting the DNA thieves is true, the existence of a nexus between the alleged DNA thieves and Mr. Galway is speculation on his part. The DNA thieves did not purport to be there on Mr. Galway’s behalf. The appellant himself testified that he only made a connection between the threat by the DNA thieves and Mr. Galway when he learned that Mr. Galway was threatening to bring a civil action against him and his wife for Ms. Galway’s death. This is not a logical reason to connect Mr. Galway to the DNA thieves.

[45] Second, the inference capable of being drawn must connect the third party to the murder. That is not the case here. The threat made by both Mr. Galway and the DNA thieves was the antithesis of a threat to kill the deceased. The appellant was warned to keep away from the deceased. His failure to comply would result in harm to the appellant and his family, not the deceased. It was the appellant, not the deceased, who was in fact assaulted by the DNA thieves.

[46] Third, the appellant says he cannot recall the exact words spoken by the DNA thieves. For evidence to be probative, it must be capable of being relied upon. The reliability of what was said was not established.

[47] Fourth, as the trial judge held, the evidence of motive of the third party was weak. There is insufficient evidence to reasonably infer that Mr. Galway’s motive for killing his wife was for financial gain. There is no indication, for example, that Mr. Galway was experiencing financial difficulty. The appellant’s belief in Mr. Galway’s desire for the $350,000 was speculation on the appellant’s part. Further, the evidence of propensity respecting Mr. Galway was deficient in that it lacked a sufficient link to Ms. Galway’s murder. The incidents of alleged abuse had ceased several years before their separation. There was no evidence that Mr. Galway engaged in any violence or made threats towards Ms. Galway after their separation.

[48] In sum, the trial judge made no error in excluding from the jury’s consideration the appellant’s third party suspect defence. The appellant’s related ground of appeal, namely that the trial judge erred in law by failing to re-visit the appellant’s application to lead evidence in relation to the third-party suspect, must also fail.

E. did the trial judge err in his issuance of the Mid-Trial and Closing Instruction to the Jury?

[49] A trial judge is permitted to offer an opinion as to the believability of evidence but is never permitted to give a direction on the ultimate issue of guilt: R. v. Gunning, 2005 SCC 27,[2005] 1 S.C.R. 627, at para. 31; R. v. Krieger, 2006 SCC 47,[2006] 2 S.C.R. 501; R. v. Mayuran, 2012 SCC 31, 284 C.C.C. (3d) 1, at para. 36.

[50] Amicus submits that even if the trial judge was correct in refusing to leave the third party suspect defence with the jury, the trial judge erred in telling the jury why he had refused to allow the defence. In doing so, he transgressed on the fact-finding function of the jury and, in essence, directed them to find the appellant guilty. In making this submission, amicus emphasizes the trial judge’s comment in his mid-trial instruction that “[a]ll of the evidence points to the accused and away from Patrick Galway.”

[51] In support of his position, amicus relies on this court’s decision in R. v. Foreman (2002), 2002 CanLII 6305 (ON CA), 169 C.C.C. (3d) 489, leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 199, at para. 42, in which Doherty J.A. stated:

The admissibility of evidence is a question for the trial judge. There is no need to explain to a jury the criteria governing admissibility or the trial judge’s evaluation of that criteria. The explanation is at best superfluous and at worst may taint the jury’s fact-finding function if there is an overlap between the test for admissibility and the criteria to be considered by the jury in assessing the evidence: R. v. Gilling (1997), 1997 CanLII 837 (ON CA), 117 C.C.C. (3d) 444 at 449-50 (Ont. C.A.).

[52] In pleading not guilty, an accused is, in effect, saying that the Crown cannot meet its burden of proving each and every element of the offence beyond a reasonable doubt. The “air of reality” requirement of affirmative defences has no application. No matter how overwhelming the evidence is, it is never the function of a trial judge sitting with a jury to decide that the Crown has proven one or more essential elements of the offence charged and to direct the jury that the Crown has discharged its burden in this regard, or to direct the jury to convict: R. v. Gunning, at paras. 30-31; R. v. Krieger, at para. 24. To do so is to take away the accused’s constitutional right to a trial by jury, and in such a case the curative proviso found in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, cannot be applied: R. v. Krieger, at para. 25.

[53] However, in this case, the trial judge’s comment in his mid-trial instruction was not in effect a direction to the jury to find the appellant guilty. It remained open to the jury on all the evidence before it to find that the Crown had not proven the appellant’s guilt beyond a reasonable doubt. Further, the appellant provoked the trial judge’s mid-trial instruction to the jury. The trial judge warned the appellant that if he persisted in naming Patrick Galway as a third party suspect in front of the jury, he would have to instruct them to ignore this evidence. It was only after the appellant continued to defy the court’s order and the appellant’s third outburst before the jury that the instruction was provided. In the circumstances, the appellant’s remarks required a response given their potential to leave the jury with the impression that the trial judge was deliberately attempting to bury critical evidence.

[54] In the cases on which amicus relies, R. v. Foreman and R. v. Gilling, the trial judge made a preliminary assessment that the evidence in question was admissible. As a result, the jury would have to weigh that evidence. In those circumstances, telling the jury that the evidence had been found to be reliable ran the risk of elevating it and influencing the jury as to the weight to be given to that evidence. Here, because the evidence was inadmissible, the trial judge’s comments could not influence the weight to be given by the jury to that evidence.

[55] In saying that all of the evidence pointed towards the accused and away from Patrick Galway during his mid-trial instruction, the trial judge was giving an opinion on the evidence at that stage of the trial. In his charge to the jury, the trial judge gave the standard instruction that, while he was entitled to express an opinion on the evidence, it was the jury’s function to decide the facts, not his. The trial judge did not repeat the impugned mid-trial comment in his closing address, and his direction to the jury that there was no admissible evidence to support the appellant’s assertion of a third party suspect was accurate.

[56] The trial judge reviewed the appellant’s evidence, including his evidence that he had been framed, and told the jury that if it alone or in combination with any other evidence left them with a reasonable doubt, they must acquit. The jury deliberated for two days before returning a verdict of guilty. The members of the jury understood their function was to weigh the evidence and did so. Considering the trial judge’s instructions as a whole, the appellant was not deprived of his constitutional right to be tried by a jury.

[57] At its highest, the trial judge’s mid-trial comments resulted in an imperfect trial. Assuming the trial judge’s comment that all of the evidence pointed towards the appellant ought not to have been made, I would nevertheless uphold the verdict based on s. 686(i)(b)(iii) of the Criminal Code. The comment occasioned no substantial wrong or miscarriage of justice. The evidence as to the appellant’s guilt was overwhelming and, in the circumstances, the verdict would inevitably have been the same.

F. The Grounds of Appeal raised by the Appellant

[58] I am largely in agreement with the Crown’s submissions in response to the remaining grounds of appeal raised by the appellant.

[59] The appellant submits that the trial judge erred in not granting his motion for a directed verdict acquitting him. As I have indicated, the evidence against the appellant was overwhelming. The trial judge did not err in dismissing the motion.

[60] The appellant renews his request for exhumation of the deceased’s body and additional forensic testing, which was thoroughly considered by a panel of this court in June of this year and dismissed. His related allegation that the deceased’s vagina was missing due to animal predation, along with his concern about some forensic samples taken from his home containing “no human DNA,” are linked to his theory that the police conspired to frame him. There is no credible evidence in support of these allegations.

[61] The appellant also contests the admissibility of the deceased’s hearsay statements to Mr. Crooy and Mr. Gardiner regarding the appellant’s phone calls and romantic advances. The threshold reliability of these statements is supported by the deceased’s phone records, and the email the deceased sent to Mr. Crooy regarding her conversation with the appellant about his behaviour. The trial judge did not err in admitting this evidence.

[62] The appellant also submits that the trial judge erred in rejecting his argument respecting jury unanimity as to how the deceased’s death was caused. The appellant’s argument is contrary to current jurisprudence, which holds that a jury can arrive at their verdict by different routes and need not rely on the same facts: R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652; R. v. Dool, [1987] O.J. No. 564 (C.A.), leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 83; R. v. S.M.R. (2004), 2004 CanLII 31916 (ON CA), 189 C.C.C. (3d) 152 (Ont. C.A.) The trial judge therefore properly rejected this argument.

[63] In his charge to the jury, the trial judge gave the jury a warning indicating that no adverse inference could be drawn from the appellant’s decision to exercise his right to remain silent during a video-taped interview with Ottawa Police. I would reject the appellant’s complaint that his right to remain silent was violated by this instruction for the following reasons.

[64] In the course of his charge, the trial judge reminded the jury of a mid-trial instruction he had given to the same effect. This initial instruction arose from the trial judge’s concern that the jury had watched approximately thirty minutes of the video-taped interview in question. The video showed the appellant, shortly after his arrest, repeatedly invoking his right to silence in response to police questioning. Mr. Tehrankari requested that the jury watch the video in support of his cross-examinations of the two detectives about, among other things, their abusive interrogation style.

[65] The Supreme Court of Canada has recently affirmed a trial judge’s ability to comment on an accused’s right to silence in a jury charge in appropriate circumstances: R. v. Prokofiew, 2012 SCC 49. Although the facts of this appeal differ slightly from those in R. v. Prokofiew, where one co-accused elected not to testify in the course of a joint trial, the majority’s reasoning at para. 1 applies:

[Section] 4(6) of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”), does not prohibit a trial judge from affirming an accused’s right to silence. In so concluding, I should not be taken…to suggest…that such an instruction must be given in every case where an accused exercises his or her right to remain silent at trial. Rather, it will be for the trial judge, in the exercise of his or her discretion, to provide such an instruction where there is a realistic concern that the jury may place evidential value on an accused’s decision not to testify.

[66] It was open to the trial judge in this case to exercise his discretion to instruct the jury on the appellant’s decision to remain silent during the video-taped interrogation they had watched. It was reasonable for the trial judge to be concerned that the jury, without proper instruction, may misuse the evidence put so vividly before it.

[67] In his charge, the trial judge was simply referring back to his earlier instruction neutralizing any impermissible inferences that might be drawn from the videotape. Further, the charge on the appellant’s right to remain silent was correctly stated. The jury would have understood that they were not entitled to place any weight on the appellant’s exercise of his constitutional rights. I would accordingly dismiss this ground of appeal.

[68] In his factum, the appellant marshals other evidence in support of inferences favourable to the defence that he submits ought to have been drawn. I agree with the Crown’s submission that the mere fact that a jury could have drawn a different inference or that the appellant can point to individual pieces of evidence he says are exculpatory is not a basis for intervention.

[69] The appellant’s complaints concerning abuses by the correctional authorities were dealt with by the trial judge. I am satisfied that he committed no error in telling the appellant he could lay charges for any alleged assault and in refusing to conduct a parallel inquiry. In addition, the trial judge’s orders granting the appellant access to the material and support he needed to prepare himself for trial ensured that the appellant received a fair trial.

[70] Finally, I would dismiss any other grounds of appeal not specifically addressed by these reasons, as I am of the opinion they are devoid of merit.

G. Result

[71] For the reasons I have given, I would dismiss this appeal.

Released: October 26, 2012 (“D.O’C.”)

“Karen M. Weiler J.A.”

“I agree D. O’Connor A.C.J.O.”

“I agree Alexandra Hoy J.A.”

[^1]: The appellant has a record for armed robbery.

[^2]: Presumably the appellant was referring to the $250,000 owed to Ms. Galway on the division of their assets as well as the proceeds of the $100,000 insurance policy on her life.