Court of Appeal for Ontario

Date: 2018-10-15 Docket: C64134

Justices: Simmons, Rouleau and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Clark Eric Sauve Appellant

Counsel

Louis P. Strezos, as duty counsel Clark Eric Sauve, acting in person Lorna Bolton, for the respondent

Heard: October 3, 2018

Appeal Book Endorsement

[1] Following a judge alone trial, the appellant was convicted of the second degree murder of his wife. He was sentenced to life imprisonment with no eligibility for parole for twelve years.

[2] On behalf of the appellant, duty counsel argued that the trial judge materially misapprehended the evidence at trial with the result that he failed to consider potentially exculpatory evidence under the third prong of W.D.

[3] We agree that the trial judge erred when he stated there was no video recording of a demonstration conducted by police to determine how long it may have taken a person in a wheel chair to go from the upstairs master bedroom via the stair lift to a wheel chair on the main floor and then to a nearby alarm keypad. In fact, contrary to the trial judge's statement, the police video recording of the demonstration was played in court on the first day of the trial and was entered as an exhibit.

[4] Nonetheless, we are not persuaded that the trial judge's error amounted to a material misapprehension of the evidence adduced at trial warranting appellate intervention.

[5] As we read his reasons, despite saying that no video recording had been filed, the trial judge took full account of the demonstration evidence but concluded that it did not give rise to a reasonable doubt.

[6] In particular, the trial judge's reasons show he fully appreciated the defence position concerning the significance of the demonstration evidence, namely, that it could give rise to a reasonable doubt whether the appellant was the only person in the house when his wife was shot.

[7] The defence position was premised on the fact that it took 52 seconds in the demonstration video for the demonstration officer to reach the alarm keypad going from the master bedroom to the keypad using wheelchairs and the stair lift. On the other hand, one possible interpretation of the evidence concerning the events at issue was that the alarm system was deactivated by entering a code in the keypad within 32 seconds of the alarm being triggered - a feat the defence submitted the demonstration video suggested the appellant, in his wheel chair, was incapable of performing.

[8] In our view, on a fair reading of his reasons, the trial judge concluded, in effect, that the demonstration evidence did not give rise to a reasonable doubt because it amounted to speculation. This was so both because of inherent shortcomings in the demonstration evidence and also because it had to be considered in the context of the totality of the Crown's case. Overall, it was not a reliable reflection of the time required for the appellant to get to the alarm keypad from the master bedroom or of the necessity of him doing so in any event, when considered in the context of the whole of the evidence.

[9] As noted by the trial judge, some of the inherent shortcomings in the demonstration evidence were that the officer who performed the demonstration did not testify – he was an able-bodied person and there was no evidence as to how familiar he was with wheel chairs, stair lifts or the alarm system.

[10] Further, there was uncertainty about whether the alarm could be turned off remotely by a fob.

[11] Moreover, the trial judge had already recited evidence leading him to conclude the Crown's case that the appellant was the shooter was overwhelming. For example, the appellant had gunshot residue on both hands; the gun was faulty and it took both hands to fire it; the appellant's DNA was found on the gun and on the bullets in the gun; and there was no indication of a robbery or home invasion.

[12] Duty counsel did not suggest that the trial judge's finding that the appellant's four statements to the police were "riddled with inconsistencies and admitted lies and … simply not believable" was not reasonable.

[13] We note, as well, that there was evidence at trial showing the appellant could crawl and also undermining his claim of disability.

[14] In all the circumstances, we see no realistic possibility that watching the video again would have assuaged the trial judge's concerns about the weight of the demonstration evidence.

[15] On his own behalf the appellant argued that: i) it is apparent from photographic evidence that a police officer mis-described the location of his wheel chair near the foot of the stair lift; ii) the trial judge improperly rejected the possibility of cross-contamination of DNA evidence; and iii) the trial judge failed to consider alternate explanations for the gunshot residue found on his (the appellant's) hands. Based on our review of the record, none of these arguments is borne out by the evidence or the trial judge's reasons.

[16] As for his sentence appeal, the appellant failed to identify any error in the trial judge's reasons concerning the parole ineligibility period. We see no basis on which to interfere.

[17] The conviction appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.