Court of Appeal for Ontario
Date: August 23, 2018 Docket: C61172 Judges: Doherty, Pepall and Nordheimer JJ.A.
Parties
Between
Her Majesty the Queen Respondent
and
David Thomas Appellant
Counsel
Najma Jamaldin and Paul Genua, for the appellant Alex Alvaro, for the respondent
Heard: June 7, 2018
On appeal from: The conviction entered on March 13, 2015 and sentence imposed on July 15, 2015 by Justice David A. Broad of the Superior Court of Justice, sitting with a jury.
Opinion of the Court
Nordheimer J.A.:
Introduction
[1] The appellant was convicted of second degree murder after a ten week trial. He was sentenced to life imprisonment with no eligibility for parole for a period of 16 years. He appeals both his conviction and his sentence.
[2] Multiple grounds of appeal are advanced. Unfortunately, they are not identified with the clarity one would expect. As best as I can determine, the grounds are:
(i) the admissibility of two statements made by the appellant;
(ii) the admissibility of after the fact conduct evidence;
(iii) the admissibility of prior discreditable conduct evidence;
(iv) the admissibility of evidence improperly seized and held pursuant to a search warrant;
(v) the asserted impropriety of Crown counsel's closing address;
(vi) errors in the jury charge; and
(vii) unreasonable verdict.
Errors are also alleged with respect to the sentence imposed.
[3] In my view, the most serious challenge relates to certain aspects of the jury charge. I will therefore begin my consideration of the appeal with that challenge. As will become apparent, once that challenge is addressed, the other grounds of appeal can be dealt with more succinctly.
I: Background
The case for the prosecution
[4] The appellant was charged with the second degree murder of his common law spouse, D.B. The murder was alleged to have occurred in the early morning hours on January 1, 2007 in Waterloo, Ontario.
[5] It was not until April 17, 2007, that a man, walking his dog, discovered D.B.'s badly decomposed, unclothed body in an area that was part of the flood plain of the Grand River in southeast Kitchener, Ontario. The Crown's theory was that the appellant had found D.B. at a bar with another man on New Year's Eve. Motivated by hostility, anger, jealousy, and feelings of betrayal, he killed her and then drove her body in his car and dumped it in the river. D.B. had not been seen by any known person after the early morning hours of January 1, 2007.
[6] D.B. was an alcoholic who had a history of disappearing as a result of her drinking. She would often go on "benders" for three to five days. Consequently, D.B. was not reported as missing until January 15, 2007. The police commenced an investigation. It appears that the police quickly focussed on the appellant as a person of interest in their investigation.
[7] On January 24, 2007, the police executed a search warrant at the appellant's apartment. He was not home. While the search took place, the police conducted surveillance on the appellant. They observed the appellant drive toward his apartment building, but when he saw the police presence, he drove instead to Sunnydale Place, a little more than a kilometre away. He parked his vehicle in a parking spot behind some townhouses and walked away. The appellant eventually returned to his vehicle more than three hours later.
[8] On January 31, 2007, the police took possession of the appellant's vehicle. They found transfer blood stains on the front passenger side of the vehicle. Blood stains were also found on the floorboard and running board beneath the right passenger door. Areas within the passenger compartment tested positive for human blood, even though it was not visible. These blood stains had a "wipe" appearance to them, suggesting that there had been an attempt to clean up the blood. It was agreed at trial that the blood found was that of D.B., as was a hair embedded in a blood stain on the inside plastic trim.
[9] A forensic pathologist conducted an autopsy. He was unable to determine a cause of death because of the advanced state of decomposition. The forensic pathologist concluded that the body had been submerged in water for at least a month. The pathologist could not say when D.B. had died, but the condition of the body was consistent with her disappearance on New Year's Day. There were no fractures of the bones in her neck, but the forensic pathologist gave evidence that, in his experience, about 70% of manual strangulations result in no bone fractures. Thus, he could not rule out application of force to the neck. There was no evidence of self-inflicted injuries. Nevertheless, the pathologist was unable to rule out suicide as the manner of death. The forensic pathologist also could not rule out drowning, because D.B. was found near the water. The forensic pathologist acknowledged that D.B. could have entered the water "by herself".
[10] The forensic pathologist also observed "many rib fractures". Haemorrhaging was associated with the rib fractures on her left side. Those fractures likely occurred "peri-mortem" – around the time of death – either before, at the time, or shortly after death. The fractures could have been caused by the application of force from a person but they also could have been caused by contact with objects. There were also rib fractures on the right side but no haemorrhaging was associated with those fractures. They likely occurred post-mortem, that is, after death.
[11] The appellant was not arrested until July 13, 2011. At the time of his arrest, he told the police that the last time he saw D.B. was early on New Year's Day 2007. He said that they left together after spending time at a bar. On their way home, they had an argument. D.B. walked back towards the bar. The appellant went home. He said he never saw D.B. again. The appellant denied that D.B. went back to his apartment with him.
[12] During the trial, the jury heard a great deal of evidence regarding the relationship between the appellant and D.B., including many instances of violence by the appellant towards her. I summarize that evidence as follows:
A diary along with letters written by D.B. The diary entries described repeated physical and verbal abuse that D.B. had suffered at the hands of the appellant. In the letters, D.B. discussed the appellant's drinking, the fact that he was often angry, and that he beat her. D.B. referred to "frequent" death threats from the appellant, including his threat to kill her and dump her body "out in the woods".
An admission in 2005 to a hospital in Kitchener. D.B.'s blood ethanol level, approximately two hours after admission, was described as "dangerously high". D.B. told hospital staff that the appellant sat on her chest and strangled her, telling her he wanted her dead. She said he repeatedly kicked her in her right side and punched her in the back. He gave her a "back hand" across the face. D.B. had suffered a fractured nasal bone and eye contusion. She had bruises on her neck. D.B. reported having previously been assaulted by the appellant.
On November 9, 2005, the appellant entered a guilty plea to a count of assault causing bodily harm relating to D.B. He accepted as "substantially correct" the facts read into the record. Those facts included an allegation that he choked D.B. to unconsciousness, while yelling "I want you dead, I want you dead, I want you dead".
A male witness, D.H., who met D.B. in September or October 2005, gave evidence that D.B. had a black eye. Her nose was swollen. D.B. explained to D.H. that her boyfriend (the appellant) had hit her.
Evidence from the appellant's probation officer after the November 2005 conviction. The appellant told the probation officer that his relationship with D.B. started well but became rocky after she had an affair. In describing his offence, the appellant acknowledged he had "lost control". The probation officer also noted that the appellant continued to blame D.B. and spoke of her "infidelity, betrayals and lying".
In the Spring of 2006, N.C. (who is female) met D.B. when they worked together. N.C. testified that every time she saw D.B., she noticed "some type of bruising on her". One day after they no longer worked together, D.B. unexpectedly came to N.C.'s door, crying and shaking. D.B. told N.C. that the appellant had been hitting her again. D.B. was bleeding from her nose and from a small cut to her lip. The lower part of her face and her shirt were covered in blood. The left side of her face was red from what appeared to be a slap. Her neck had red marks on both sides, shaped like fingers, as if someone had grabbed her. N.C. said that D.B. said that the appellant had tried to choke her.
D.B. stayed with N.C. for a period of time. During her stay, N.C. testified that she saw other bruises on D.B.'s body, on her back, and on her ribs. She had a scar on her upper thigh. D.B. told N.C. that the appellant caused those injuries and had stabbed her thigh with a knife.
One evening, the appellant, intoxicated, came to N.C.'s apartment door. N.C.'s husband opened the door half-way and told the appellant that D.B. did not want to see him. When the husband tried to close the door, the appellant placed his foot in the way. He was "getting angrier by the minute". The appellant tried to force his way in but N.C. pushed the appellant into the hallway and locked the apartment door.
The next time N.C. saw D.B. was sometime during the summer of 2006. She testified that D.B. was sitting on the steps of her building crying. D.B. told N.C. that the appellant was hitting her again.
D.B.'s mother described her daughter as an alcoholic, particularly in the last two years of her life. D.B. came to live with her mother in July 2006. She testified that D.B. appeared without advance notice and looked "terrified". She had a bruise on her arm and on her neck. D.B. told her mother that the appellant was continually beating her and that he had threatened her life. D.B. went out on the weekend but, when she returned, she had bruises, a black eye, and a split lip. She was also intoxicated.
On December 23, 2006, D.B. showed up at D.H.'s apartment. She had a black eye and she was very upset. She told D.H. that the appellant had hit her again. She stayed until Christmas Day, when she left to return home. D.B. told D.H. that she would be back that evening. She did not return, however, until December 29. When she did, her face was bruised. She had a line on her left cheek approximately two inches long and three-quarters of an inch wide. D.B. said that the appellant had hit her again.
[13] In terms of the events immediately prior to her disappearance, the evidence was that on the evening of New Year's Eve 2006, D.B. and D.H. went to a bar. The appellant came to the bar and looked in the window. He then entered the bar and was belligerent. One witness in the bar testified that, while D.H. and D.B. were dancing, the appellant gestured aggressively toward D.B., calling her to leave with him. Another witness testified that a man entered the bar and yelled at D.B. He said, "You're supposed to be home with me, you're supposed to be my wife, and I'm supposed to be your husband." The appellant was rude, scary, and loud. Yet another witness testified that the appellant "was not happy" when he entered the bar. He grabbed D.B.'s arm between the shoulder and the elbow forcefully, "as if to say you're coming with me".
[14] At the request of the bar's owner, the appellant left. He later returned and apologized, then sat beside D.B. The two spoke calmly. When they went outside for a smoke, D.H. saw them hugging. At some point, D.H. confronted the appellant about beating D.B. The appellant responded calmly that it was the whiskey. D.B. had been drinking, but by midnight she was still able to walk without difficulty. The appellant appeared sober. D.B. and the appellant left the restaurant together. D.H. never saw or heard from D.B. again.
[15] After the disappearance of D.B., the appellant made a variety of comments, at different times, regarding her disappearance. I summarize those instances as follows:
The appellant called J.B. (D.B.'s sister) around noon on New Year's Day 2007. He told her he had seen D.B. at a bar. The appellant said that he did not speak to D.B.
The appellant called J.B. again on January 17, 2007, upset that she and D.B.'s mother had called the police. The appellant was angry, loud, and rambling. He said, "How dare they call the police on me."
The appellant and J.B. spoke again on January 26, 2007. He was still angry. J.B. told the appellant that, if he had killed D.B., she would kill him herself. The appellant said nothing in response.
The appellant spoke to D.B.'s mother in the New Year. He told her that he had seen D.B. at the bar on New Year's Eve but that he had left her alone.
On or around January 17, 2007, the appellant called D.B.'s mother, "irate", and asked her why she had called the police. The appellant told her to "stay the fuck out of it", to mind her own business, and to let the police do their job. The appellant called again a few days later, crying and telling her he loved D.B. and did not know where she was.
The officer who was investigating the disappearance of D.B. left his contact information under the door of the appellant's apartment. On January 17, 2007, the appellant called the officer, sounding excited and nervous. He told the officer that he was D.B.'s common law boyfriend and that he had been jailed for assaulting her. He and D.B. had been seeing each other with the permission of the probation officer. They were last together on New Year's Eve, drinking heavily. She was going to go home with him, but she changed her mind. She was flirting with three other men. They had an argument and the appellant went home.
Between January 15 and 26, 2007, the appellant worked with L.B. The appellant told L.B. that on New Year's, he and his girlfriend (D.B.) had gotten into an argument over drinks and she had stormed out. He had not seen her since. The appellant later told L.B. that his girlfriend had contacted him by telephone "on and off" after New Year's.
The jury charge
[16] The trial judge began his jury charge with standard instructions on matters such as the importance of their duties as jurors; their obligation to find the facts in the case; their obligation to abide by the rules of law set forth by the trial judge; that their recollection of the evidence was what mattered; and that they were obliged to view the evidence objectively. The standard instructions regarding the burden of proof and the presumption of innocence were given. The standard instruction on circumstantial and direct evidence followed.
[17] The trial judge then dealt with what he characterized as "after-the-fact" conduct, specifically, the various statements that the appellant made after D.B.'s disappearance, which the Crown contended were false. The trial judge reviewed seven such instances.
[18] The trial judge moved from that after-the-fact evidence to the evidence regarding the relationship between the appellant and D.B. The trial judge continued his charge over the next 12 pages or so by referring to the evidence of the instances of abusive and violent behaviour between the appellant and D.B., as I have largely set out above. The trial judge then concluded this topic by saying:
This evidence of abusive behaviour goes to the nature of the relationship between [D.B.] and Mr. Thomas and to the issues of animus and ill will, and motive. If you conclude that these other acts of abuse and violence and controlling and threatening behaviour and the circumstances surrounding the death of [D.B.] are so connected that the same person did likely all of them, you may use the evidence of the other abusive and violent acts, along with the rest of the evidence, in deciding whether David Thomas committed the offence charged.
[19] Next in his charge, the trial judge gave the standard instruction on the use that jurors could make of the notes that they had taken. The trial judge then turned to the elements of the offence of second degree murder. In dealing with the first element, that is, whether the appellant caused the death of D.B., the trial judge reviewed, in some detail, the evidence of the forensic pathologist regarding his findings from the autopsy.
[20] The trial judge then returned to the evidence regarding the "abuse, violence and controlling and threatening behaviour" exhibited by the appellant that he repeated over the next six pages of his charge. The trial judge moved on from that evidence to address the evidence relating to the events in the bar on New Year's Eve 2006. Thereafter, the trial judge returned to the various statements that the appellant made after the disappearance of D.B. Lastly, on the first element of the offence, the trial judge addressed the blood evidence from the appellant's vehicle.
[21] The trial judge then proceeded to address the second and third elements of the offence relatively briefly. This was understandable given that it was the first element of the offence that was critical to the determination of guilt. As the trial judge pointed out, the evidence on that first element overlapped with the second and third elements. The jury charge then concluded with the trial judge's review of the Crown's and defence's positions and then with some further standard instructions.
II: Challenge to the jury charge
[22] As may be apparent from the above recitation of the facts, this was going to be a difficult case for the jury. The case against the appellant was entirely circumstantial. There was no evidence as to the cause of death. The manner in which the trial judge instructed the jury on the elements of the offence, and how the evidence related to each of those elements, was therefore of particular importance in light of the approach that the jury had to properly take when deciding a circumstantial evidence case.
(a) The jury instruction on cause of death
[23] Given the facts of this case, as the first step to determining guilt, the jury had to be satisfied, beyond a reasonable doubt, that D.B. was killed, as opposed to her death being the result of suicide, or misadventure, or the cause simply being uncertain or undetermined.
[24] The trial judge started his review of the elements of the offence with the correct statement that the jury had to be satisfied beyond a reasonable doubt that the appellant "caused" the death of D.B. While, in my view, it might have been preferable for the trial judge to make the cause of death, as opposed to the identity of the killer, a separate and clearer question for the jury to determine, the fact is that the jury was instructed to consider the cause of death directly. By telling the jury that they had to be satisfied that the appellant caused the death of D.B., it would be clear to the jury that, if they concluded that D.B. met her death, either at her own hands or by some unfortunate event, they had to find the appellant not guilty.
[25] This result was reinforced when the trial judge told the jury:
Because the evidence related to whether [D.B.'s] death resulted from an assault is entirely circumstantial and because the identity of Mr. Thomas as the person who caused the death by the application of force is an essential element requiring proof beyond a reasonable doubt, I remind you that, to the extent that you rely on the circumstantial evidence you would have to be satisfied that an assault occurred which led to or contributed to [D.B.'s] death and that the identification of Mr. Thomas as the killer is the only rational inference arising from all of the evidence. [Emphasis added.]
[26] In this instruction, the jury was expressly told that, in order to find the appellant guilty, they had to be satisfied that "an assault occurred which led to or contributed to [D.B.'s] death" and that that was "the only rational inference arising from all of the evidence". If the jury concluded that D.B.'s death was the result of suicide or misadventure or, more importantly, if they could not decide on the cause of death, then the jury would have to find the appellant not guilty.
[27] I appreciate the appellant's point that the volume of "bad character" evidence, that the trial judge allowed into evidence, could be fairly characterized as "a relentless depiction of [the appellant] as a bad person". As a result, this evidence had the very real potential of so prejudicing the appellant in the eyes of the jury that they would immediately leap to a verdict of guilty, unless they were very carefully instructed on the use to which they could put this evidence.
[28] I pause at this juncture to note that it was within the discretion of the trial judge to admit all of this evidence. His decision in that regard is entitled to deference from this court: R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 58. I do not intend to revisit it, despite the appellant's invitation to do so. That said, I note that it was also open to the trial judge to restrict the scope of this evidence on the basis that permitting all of it to be admitted might overwhelm the jury and cast the appellant in such a bad light as to make it impossible for them to evaluate the ultimate question objectively. As Rothstein J. said in R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 52:
The trial judge's discretion to exclude evidence that is more prejudicial than probative recognizes that jurors will sometimes misuse relevant evidence.
(b) The proper role for the evidence
[29] Having chosen to permit the Crown to lead all of this evidence, it was incumbent on the trial judge to ensure that it did not overwhelm the jury or distract them from the real issues that they had to decide. It was imperative that this evidence be confined to its proper role and kept in its proper perspective. As Rothstein J. also said in White, at para. 55:
Accordingly, courts have recognized that when leaving certain types of evidence with the jury, the trial judge should provide a caution that alerts the jury to the risks involved.
[30] The trial judge provided those instructions in this case. For example, the trial judge provided a mid-trial instruction to the jury as follows:
You have heard evidence that David Thomas pleaded guilty to the offence of assault causing bodily harm to [D.B.] on or about September 18, 2005. You have heard and may hear further evidence that David Thomas assaulted [D.B.] at other times during their relationship. At the end of this trial I will tell you how that evidence may help you decide whether David Thomas committed the offence with which he is charged. What you need to know now is how you must not use this evidence. You must not conclude that David Thomas is guilty of the offence charged just because evidence has been given that he had been violent towards [D.B.] in the past. You must not punish David Thomas for anything he has admitted to have done, or what others have said he has done in the past, by finding him guilty of the offence charged.
[31] Further, in his jury charge, the trial judge told the jury:
Now, you are trying David Thomas on the charge of second-degree murder in the death of [D.B.]. You are not trying him for any other conduct. You have heard evidence that David Thomas was abusive of, and committed acts of violence, against [D.B.], exhibited controlling behavior towards her and made threats against her, or is alleged to have done these things. Be careful not to jump to the conclusion that just because David Thomas was violent or abusive towards [D.B.] in the past, he must have done an act that led to her death.
[32] And later in his charge, the trial judge said:
If you conclude that David Thomas did the other abusive and violent things in the past, you must not use the evidence of that conduct to conclude or help you conclude that David Thomas is a person of general bad character or disposition or who likely committed the offence charged because of that general bad character.
Further, if you conclude that David Thomas did the other violent and abusive things in the past, you must not punish David Thomas for that conduct by finding him guilty of the offence charged simply because he did those things.
(c) The "similar act" instruction
[33] All of that said, there is one area in the trial judge's instructions that is problematic. It is the instruction that he gave, more than once, and that reads like a similar act (or similar fact) instruction. I have set out one instance of that instruction in para. 18 above. Such an instruction had no place in a jury charge for this offence in these circumstances. The potential probative value of the appellant's abusive and violent conduct lay not in the "connection" between that conduct and the circumstances of D.B.'s death, but in the jury's willingness to infer animus and motive from that conduct. The trial judge properly instructed the jury on their use of motive and animus in other portions of his charge.
[34] It is not clear to me why the trial judge made these references in his jury charge. However, in the context of the charge as a whole, I do not believe that they would have misled the jury or would have caused them to jump to a conclusion of guilt. The trial judge properly outlined the elements of the offence of second degree murder. As I have already noted, he made it clear to the jury that, in order to find the appellant guilty, they had to be satisfied beyond a reasonable doubt that the appellant caused D.B.'s death. The jury was also instructed, both by way of a mid-trial instruction and in the final charge, that they should not use the "bad character" evidence to conclude that, because the appellant was abusive towards D.B. in the past, he must have caused her death. The jury would have been clear with respect to the prohibition against engaging in such reasoning.
[35] In addition, this evidence was relevant to the issue of animus or motive. It was evidence that the jury could consider on that issue and thus was properly before them in determining whether D.B. had been killed and, if so, whether the appellant was the person who killed her. I note, in passing on this point, that if this case was one where it was clear that D.B. had been killed, and the only issue was whether Mr. Thomas had killed her, no such limiting instruction on the use of the bad character evidence would have been necessary: R. v. Krugel, 143 C.C.C. (3d) 367 (Ont. C.A.); R. v. Merz, 46 O.R. (3d) 161 (C.A.). As Doherty J.A. said in Merz at para. 59:
The evidence of the threats made by the appellant was evidence of motive which, in turn, constituted circumstantial evidence of identity and intent. I see no reason to warn the jury against using the evidence to infer propensity and hence to infer that the accused committed the crime when the more direct and powerful inference to be drawn from that evidence is that the accused had a motive to kill Ms. Murray. The trial judge properly instructed the jury as to how they could use evidence of motive. The limiting instruction normally given when evidence of prior bad acts by the accused is placed before the jury would make no sense in the context of evidence of motive. An instruction like that called for by the appellant could only serve to confuse the jury.
[36] Given the contents of the jury charge as a whole, and given that all of this evidence related solely to conduct between the appellant and D.B., I do not see that the similar act reference would have confused the jury or introduced an extraneous consideration to their deliberations. The erroneous instruction was essentially superfluous to what the jury had already been properly instructed on and which they were entitled to take into account in reaching their conclusion.
(d) The appellant's earlier guilty plea
[37] Another aspect of the jury charge that raises a separate issue is the evidence of the appellant's guilty plea on a charge of assault causing bodily harm relating to D.B., that included the fact that he had yelled "I want you dead, I want you dead, I want you dead". This evidence was placed before the jury through the transcript of the guilty plea. The entire transcript of the guilty plea was made an exhibit and Crown counsel read most, if not all, of the transcript to the jury. The transcript showed that after the prosecutor read in a collection of facts, which included the above-noted threat, the appellant's counsel said that those facts were accepted as being "substantially correct".
[38] Unfortunately, the trial judge did not give the jury any assistance in terms of what that qualification meant. This was of some importance, in this case, given the fact that the threat was not a necessary element of the offence to which the appellant pleaded guilty, that is, assault causing bodily harm. A plea of guilty to a criminal charge "is an admission by the accused of all the legal ingredients necessary to constitute the crime charged and dispenses with the necessity of proof of the ingredients": R. v. Lucas, 9 C.C.C. (3d) 71 (Ont. C.A.), at p. 76, leave to appeal refused [1984] S.C.C.A. No. 389 (emphasis added). See also R. v. Eizenga, 2011 ONCA 113, 270 C.C.C. (3d) 168, at para. 43.
[39] The threat was offered as evidence of a statement by the accused. It was not an element of the offence underlying the guilty plea. On the instant prosecution, the jury could only use the statement as evidence of motive to determine the guilt of the appellant if they first concluded that he made the threat. In my view, the qualified admission by counsel that the facts were "substantially correct" did not provide a basis upon which a jury could infer that the appellant admitted that he made the threat. Absent a clear admission that the threat was made, that part of the transcript of the guilty plea should not have been placed before the jury. Alternatively, the trial judge ought to have instructed the jury that they could not infer that the appellant had accepted that he had made the threat, given the qualified nature of the admission.
[40] All of that said, however, this was but one piece in a much larger picture of the nature of the relationship between the appellant and D.B. Whether or not he made the threat did not undermine the thrust of all of the evidence that the jury heard in that regard, including evidence of similar threats at other times. In addition, and as I shall discuss below, the jury was expressly warned against jumping to conclusions regarding the appellant based on this evidence.
(e) The blood in the appellant's car
[41] The appellant also complains about the trial judge's reference to the evidence regarding D.B.'s blood being found in the appellant's car. I am not persuaded that there was any error made by the manner in which the trial judge dealt with this evidence. The trial judge carefully and thoroughly reviewed the evidence of the forensic pathologist. He reviewed all of the evidence regarding the presence of blood and the evidence of cleanup. The trial judge also told the jury that the blood could not be dated and reminded them of the possibility that the blood might have been deposited in the car on a previous occasion. I do not see anything in the trial judge's instructions to the jury on this evidence that would have misled them in any respect.
[42] The appellant also complains about the manner in which the trial judge dealt with the evidence of the blood in the car when he came to review the Crown's position. Crown counsel, in her closing submissions, advanced the theory that the appellant had killed D.B. and then driven her to the river in his car. The Crown used the trace presence of D.B.'s blood in the appellant's car as support for this theory.
[43] The trial judge accurately referred to the Crown's contention in summarizing the Crown's position. The jury was well aware that the trial judge was doing exactly that, summarizing the Crown's position. He was not suggesting that was the conclusion that the jury ought to reach nor that the Crown's view of the evidence was the only view. I do not see any error in the manner in which the trial judge dealt with this issue.
(f) The jury instruction on circumstantial evidence
[44] As I said earlier, this was an entirely circumstantial case. Much has been written on the subject of the proper approach to circumstantial evidence. Some view this area as confused. That view caused the Supreme Court of Canada to attempt to provide clarification on this issue in their decision in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. Unfortunately, the trial judge did not have the benefit of the decision in Villaroman when he instructed the jury. The validity of the appellant's concerns in this regard have to be viewed with that reality in mind.
[45] In this case, the trial judge gave the jury a standard instruction on what constitutes circumstantial evidence, namely, the drawing of inferences from proven facts. A bit later, the trial judge told the jury:
However, before you base a verdict of guilty on circumstantial evidence, you must be satisfied beyond a reasonable doubt that the guilt of Mr. Thomas is the only rational verdict to be drawn from the whole of the evidence.
[46] That is the standard and correct instruction on circumstantial evidence. Importantly, it was not the only time that the trial judge gave the instruction to the jury. In the course of dealing with the elements of the offence, and the evidence relating to those elements, the trial judge gave the instruction to which I referred in para. 25, above.
[47] In addition, the trial judge concluded his instruction on the first element of the offence by saying the following:
As I explained earlier, the evidence led by the Crown to establish the guilt of Mr. Thomas is entirely circumstantial including the evidence respecting the manner of [D.B.'s death. For you to draw the inference from the totality of the evidence that [D.B.'s] death was a homicide and that her death was caused by an act of David Thomas, you must be satisfied that this inference is the only reasonable inference to be drawn from all of the evidence.
[48] It is difficult to criticize the trial judge's charge regarding circumstantial evidence when he repeatedly told the jury exactly how they should approach that evidence and, importantly, reminded them that guilt must be the only reasonable inference to be drawn from it.
[49] I recognize the ever-present danger that a jury may have a tendency to jump to unwarranted conclusions when dealing with circumstantial evidence: Villaroman, at para. 29. Jurors may also have a similar tendency to fill in evidentiary gaps, rather than treat those gaps as a reason to have a reasonable doubt as to guilt. On that point, in Villaroman, Cromwell J., at para. 30, suggested that juries should be instructed in the following way:
It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt.
[50] Repeating that the trial judge did not have the benefit of the decision in Villaroman when he gave his instructions to the jury, nevertheless, in my view, the contents of his instructions achieved the desired purpose.
[51] One other aspect of this issue deserves mention. In her closing submissions, Crown counsel, on more than one occasion, told the jury that there was "no evidence" to support theories other than a homicide. The trial judge repeated those assertions when he reviewed the Crown's closing submissions. It is important, in a circumstantial evidence case, to instruct the jury that inferences consistent with innocence do not have to arise from proven facts. If there are reasonable inferences available on the evidence that would allow for a conclusion other than guilt, then the jury is obliged to consider those possible inferences in determining whether the Crown has proved the offence beyond a reasonable doubt. This is made clear in Villaroman, at para. 35.
[52] While the trial judge did not instruct the jury specifically on this point, as I have already said, he instructed the jury on the proper use of circumstantial evidence on more than one occasion. He also reminded the jury, on at least two occasions, that a reasonable doubt can arise from the evidence "or the lack of evidence". The latter reference invokes the same fundamental principle that underlies the point made in Villaroman to which I just referred. I do not view the references made by Crown counsel, as summarized by the trial judge, as detracting from the force and effect of those instructions.
III: Other grounds of appeal
(a) The appellant's July 13, 2011 statement to police
[53] The appellant submits that the trial judge erred in permitting the Crown to adduce a portion of his July 13, 2011 statement to the police. The appellant argues that the entire statement should have been excluded because it was tainted by an earlier statement of February 6, 2007 that the appellant gave to the police and which was ruled to be an involuntary statement.
[54] The trial judge excluded the portion of the July 13, 2011 statement that occurred after the officer made reference to the February 6, 2007 statement but permitted the Crown to use the earlier portion of the statement that occurred prior to any reference to the February 6, 2007 statement. I do not see any error in the manner in which the trial judge dealt with this issue.
(b) The appellant's statements to his probation officer
[55] The appellant submits that the Crown should not have been permitted to call the appellant's probation officer and elicit from her details that the appellant gave to her respecting the assault causing bodily harm conviction that involved D.B. The appellant submits that the probation officer was a person in authority and thus the statements were not voluntary. The appellant also submits, in essence, that a privilege attaches to the statements under the Wigmore principles.
[56] I do not view it as necessary, in this case, to determine either of these contentions as they relate to the probation officer. Even if the probation officer's evidence had been excluded, there would have been no practical effect at trial. The circumstances surrounding the assault causing bodily harm offence were already before the jury through the evidence of the guilty plea. There was also a considerable body of other evidence detailing the nature of the relationship between the appellant and D.B.
[57] That said, I would voice a note of caution on this issue. It seems to me that there is certainly an argument to be made that a case-by-case privilege might well attach to communications between a convicted person and his/her probation officer, based on the principles discussed by the Supreme Court of Canada in cases such as R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at paras. 50-69. Pending any definitive ruling on the issue, the Crown would be well-advised to consider the wisdom of seeking to adduce such evidence in future trials.
(c) Over-seized and over-held evidence
[58] The appellant complains that the Crown was permitted to adduce evidence that was seized by the police pursuant to a search warrant. The appellant says that items were seized that were not covered by the search warrant and that the police held items seized past the permitted time.
[59] The trial judge dealt with these issues in a detailed ruling. He concluded that, while the police seized items not detailed in the appendix to the ITO, they were still covered by the terms of the search warrant. I do not see any error in that conclusion. In terms of the over-holding, the trial judge assumed a breach of s. 8 of the Canadian Charter of Rights and Freedoms but declined to exclude the evidence under s. 24(2).
[60] Like the trial judge, I do not need to determine whether the over-holding constituted a s. 8 breach because, assuming that it did, I do not see any error in the trial judge's s. 24(2) conclusion. He properly considered the principles from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. I fail to see any error in his application of those principles.
(d) The Crown's closing statement
[61] The appellant says that the Crown acted improperly in her closing statement, particularly in respect to her reference to the failure of the appellant to provide more details when he made a voluntary statement to the police on January 17, 2007.
[62] The trial judge dealt with this issue directly in his instructions to the jury. He made it very clear to the jury that the appellant had a right to silence and was not under any obligation to provide any information to the police. Whatever problem might have been caused by the Crown's reference to this issue, it was fully covered by the instruction that the trial judge gave to the jury.
(e) The jury's verdict was unreasonable
[63] I need say very little on this ground of appeal. The sole question is whether, on the whole of the evidence, the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 79. In my view, there is no question that a finding of guilt was a verdict that was open to the jury to reach on the evidence that was placed before them.
(f) Application of the curative proviso
[64] In light of my conclusions on the various grounds of appeal, it is unnecessary to deal with the application of the curative proviso.
IV: The sentence appeal
[65] The appellant appeals from the trial judge's imposition of a 16 year parole ineligibility period. I see no merit in this appeal. The trial judge gave careful reasons for his conclusion regarding the period of parole ineligibility. It was within the range established by earlier authorities and, I note, was less than 10 of the 12 jurors recommended. I am satisfied that the period of parole ineligibility fixed by the trial judge is proportionate to the gravity of the appellant's offence and his degree of responsibility for having committed it: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53. I do not consider it to be harsh or excessive or beyond the range of periods of parole ineligibility appropriate for offences of this nature.
V: Conclusion
[66] For these reasons, I would dismiss the appeal.
Released: August 23, 2018
"I.N."
"I.V.B. Nordheimer J.A."
"I agree. Doherty J.A."
"I agree. S.E. Pepall J.A."
