COURT OF APPEAL FOR ONTARIO DATE: 20210209 DOCKET: C67416

MacPherson, Trotter and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Benjamin Ronald Marki Appellant

Counsel: Delmar Doucette and Cara Barbisan, for the appellant Amy Alyea, for the respondent

Heard: January 20, 2021 by video conference

On appeal from the convictions entered by Justice Terrence A. Platana of the Superior Court of Justice on April 20, 2018, sitting with a jury.

MacPherson J.A.:

A. Overview

[1] Wilfred Pott and Anne Chuchmuch were a common law couple with whom Benjamin Marki lived for about three years. They lived together as a family in a house in Thunder Bay.

[2] On December 27, 2015, Pott and Chuchmuch were stabbed to death in their home. Gasoline was spread and a fire was set in the home. Marki was present just outside the home when the firefighters and police arrived.

[3] On January 15, 2016, Marki was charged with two counts of second degree murder, one count of arson, and one count of interfering with human remains (burning). It was agreed at trial that one person committed all the offences and the only live issue was the identity of that person.

[4] On April 20, 2018, the jury found Marki guilty on all counts. On August 29, 2018, Platana J. imposed life sentences with no eligibility for parole for 20 years on the murder charges and concurrent ‘time served’ sentences on the other charges.

[5] On September 12, 2019, the appellant filed a notice of appeal challenging the convictions. He does not appeal the sentence (notice of abandonment filed October 5, 2020).

B. Facts

(1) The parties and events

[6] In 2009-2010, Pott and Chuchmuch moved from southern Ontario to Thunder Bay to make a fresh start. In 2012-2013, Marki moved to Thunder Bay and resided with the couple. Pott and Chuchmuch treated Marki as a son; Marki called them “dad” and “mom”.

[7] During the eight months prior to December 27, 2015, there were two fires at the family home. One, to which firefighters responded, resulted in a wooden shed in the backyard being destroyed. The other involved a boat in the driveway.

[8] Robert Guitard lived in a home whose backyard abutted the backyard of the home where Marki lived with Pott and Chuchmuch. On the night of December 27, 2015, he was at home when he noticed flickering light. When he looked out his window, he saw flames and smoke coming out the back door of the home where Pott and Chuchmuch lived. He told his wife to call 911, which she did at 10:23 p.m. He then went outside to move his truck. When he did so, he saw Marki frantically pounding on the back door of the burning home, trying to open it, and calling out “is anybody in there” and “let me in”. Guitard knew that opening a door during a fire can be dangerous so he told Marki to stop trying to enter.

[9] When the firefighters arrived, they heard Marki’s voice in the backyard. When they saw that he was close to the fire, they coaxed him to move away from the house and come to the front.

[10] According to fireman Jim Gowenlock, Marki told him that he lived in the house, had been out walking his two dogs, had returned to the house to find it on fire, and that there might be people inside.

[11] Two other firefighters entered the house through the front door. Marki tried to enter as well. He had one foot over the threshold before Constable Braydon Beck, the first police officer on the scene, pulled him back out of the house. Beck took Marki to Guitard’s garage.

[12] When the firefighters entered the house, they found the bodies of Pott and Chuchmuch. Chuchmuch had at least 40 stab wounds all over her body, with 12 being categorized by a pathologist as “lethal or potentially lethal”. Pott had bruises, abrasions and stab wounds, one of which caused his death. The pathologist determined that both victims died prior to the fire.

[13] The fire investigator concluded that gasoline had intentionally been introduced and the fire deliberately set.

[14] After the police and Marki left Guitard’s garage, Guitard saw two folded up knives on the floorboard of his snowmobile. He called the police back and the police seized the knives. Forensic testing established that there was blood on one of the knives. The blood swab provided a mixed profile of two people, the major contributor being a profile that could not exclude Chuchmuch and the other one being a profile that could not exclude Pott.

[15] Forensic testing also established that there was gasoline and blood on Marki’s shoes.

[16] Constable Beck interviewed Marki in Guitard’s garage from 10:49 p.m. to 12:03 a.m. According to Constable Beck’s paraphrase notes, Marki said: he went to the local First Nations reserve and bought smokes and then started drinking; returned home and saw that Pott and Chuchmuch were in the kitchen making pies mid-afternoon; kept to himself in his room for most of the afternoon; did not eat supper with the others; took the dogs for a walk; brought the dogs back but did not go into the house; went to a bus stop that was a two minute walk away; waited about six to eight minutes for a bus; heard sirens and saw flashing lights; suspected from the earlier fires that the emergency vehicles might be going to his house; ran back to the house; kicked the front door and tried to enter the house, but was knocked back by smoke; tried to kick the back door; was told by Guitard to get away from the door; and, at Guitard’s suggestion, handed one of the dogs over the fence to him.

[17] At the end of the interview, after more than an hour of questioning, Marki said, in what Constable Beck said was a verbatim statement: “I’m going to be arrested for this, I know it. Might as well arrest me now. I know how this works. I’m the most eligible to go to jail. I should have jumped on the bus and took off.”

(2) The trial

[18] The trial lasted six days. Marki did not testify and called no evidence. The jury deliberated for 12 hours over two days. The jury found Marki guilty on all four charges. He appeals from the convictions.

C. Issues

[19] The appellant raises three issues on the appeal:

1. Did the trial judge err in failing to give a W.(D.) instruction with respect to the statements the appellant made to a firefighter, a police officer, and one of Pott’s friends?
2. Did the trial judge err in failing to give a corrective instruction in regard to purported after-the-fact conduct?
3. Did the trial judge improperly instruct the jury on the defence’s failure to call evidence?

D. Analysis

(1) The W.(D.) issue

[20] It was common ground at trial that one person committed all the offences and that the only live issue was the identity of that person. The appellant made three statements to firefighter Gowenlock, Constable Beck and Pott’s friend John Zahn. Although they were not recorded and there were differences in detail, there was a common thread in all three conversations – the appellant stated that he had been out and when he came back to the house it was on fire. Accordingly, the appellant made three exculpatory statements that he was not the person who had committed the four crimes, including arson and murder.

[21] During the pre-charge conference, the trial judge and counsel discussed elements of the final instructions that were specific to the facts of the case. The trial judge then ran down the checklist of final instructions found in Watt’s Manual of Criminal Jury Instructions to see what other instructions might be given. One of the potential instructions in the checklist was the W.(D.) instruction. When it was discussed, the following exchange took place:

[THE CROWN]: Page 10 [of an early draft charge], testimony of the person charged, the W.D. instruction.

THE COURT: Oh no, I – I’ve clearly taken that out.

Defence counsel did not comment on this exchange.

[22] The appellant submits that a full and proper W.(D.) instruction specifically related to the appellant’s three exculpatory statements was required; the trial judge had a duty, regardless of the position or silence of counsel, to give this fundamental instruction.

[23] The W.(D.) instruction arose in a case where the accused testified: R. v. W.(D.), [1991] 1 S.C.R. 742. This was manifest in the actual language of the famous tripartite formulation of the instruction which refers explicitly to the “testimony of the accused”. However, subsequent case law has made it clear that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and their evidence conflicts with that of the Crown witnesses. Thus, as expressed by Blair J.A. in R. v. B.D., 2011 ONCA 51, at para 114:

Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. [Emphasis added.]

[24] Although the trial judge spoke at length and properly about the concept of reasonable doubt, the appellant submits that he did not link it sufficiently to some of the “evidence favourable to the defence in the Crown’s case”.

[25] I do not accept this submission. Even though W.(D.) considerations may be in play in a case where the accused does not testify or call evidence, there is no explicit formula that must be provided. Appellate review should focus on whether the trial judge adequately explained the facts and law to the jury on a functional level. What is required is that the jury understand the burden and standard of proof and their application.

[26] In my view, that happened in this case. The trial judge’s jury charge relating to the presumption of innocence and the “beyond reasonable doubt” standard of proof was impeccable.

[27] Importantly, the trial judge also gave the jury a good roadmap for assessing the appellant’s statements to witnesses, including firefighter Gowenlock, Constable Beck and Mr. Zahn. As requested by defence counsel, the jury was given the model instruction on out-of-court statements by an accused. The trial judge instructed the jury:

Some or all of the statements may help Benjamin Marki in his defence. You must consider those remarks that may help Benjamin Marki along with all of the other evidence, even if you do not believe them, unless you are satisfied that he did not make them. In other words, you must consider all the remarks that might help Benjamin Marki even if you cannot decide whether he said them or whether you believe them. If you decide he made a remark that may help him in his defence or if you cannot decide whether he made it, you will consider that statement along with the rest of the evidence in deciding whether you have a reasonable doubt about Benjamin Marki’s guilt.

[28] For these reasons, I do not accept the appellant’s submissions on the first issue.

(2) The after-the-fact conduct issue

[29] A few days after the homicide, but before the appellant was charged, he had coffee with Brian Walker, a good friend of Pott’s. Walker testified that within days of Marki’s arrest on January 15, 2016, Marki called from the district jail to ask that Walker and his wife change their statements to the police. However, Walker’s statement was not given to the Crown until March 2016 and it was disclosed to the defence sometime after that. Walker’s wife never gave a statement.

[30] During his closing address to the jury, Crown counsel said:

And [Marki] knows something about what the evidence is before he ever gets the disclosure. And so when he calls and asks someone to change their story and says, “I’ve seen your statement,” that’s a lie. It’s Mr. Marki’s lie. We know he didn’t see Mr. Walker’s statement because he didn’t have it yet and we know he didn’t see Mr. Walker’s wife’s statement because she didn’t give one. But why does he call and ask them to change their stories? Because he knows he’s guilty and he knows and has every expectation that they’re going to say something that’s going to implicate him.

[31] Defence counsel did not object to this aspect of the Crown closing address. Instead he succinctly, and accurately, addressed it in his own closing address, saying the “situation could not have taken place” because the appellant could not have seen the statement. Moreover, defence counsel did not ask the trial judge for a corrective instruction on this point.

[32] In these circumstances, I regard this as a very minor point and would not give effect to it as a basis for overturning the jury’s verdict.

(3) The failure to call evidence issue

[33] In his jury instructions, the trial judge told the jury:

You did not hear any evidence offered by the defence. I remind you again that the burden of proof is on the Crown. There is no requirement of the accused person to call any evidence. You should not conclude solely on the basis of his decision not to call evidence or to testify himself as an acknowledgment of guilt. [Emphasis added.]

[34] The appellant submits that the use of the word ‘solely’ in this instruction had the effect of telling the jury that they could rely on the appellant’s failure to testify or to call evidence as a basis, even if not the sole basis, in determining guilt.

[35] I am not persuaded by this submission. In R. v. Araya, 2015 SCC 11, Rothstein J. said, at para. 52:

Parsing the language in one particular sentence to determine whether it was sufficient to warn of an impermissible line of reasoning, without taking into consideration the greater context of the jury instructions and the trial itself, represents the kind of dissection and minute scrutiny this Court warned against in Cooper.

[36] There was no risk, in the circumstances of this case, that the jury would have treated the appellant’s failure to testify as evidence of his guilt. The jury instructions, as a whole, tied the presumption of innocence to the burden of proof in a manner that spoke almost directly to the irrelevance of the appellant's failure to testify. It properly conveyed that the evidence of the Crown stood alone and must be evaluated on that basis. The instruction did not invite the inference that the appellant chose not to testify to hide his guilt. When read in the context of the address of counsel and the jury charge as a whole, the jury would have understood that the Crown could prove the appellant’s guilt only on the evidence and that the appellant’s silence at trial did not constitute evidence and therefore could not be used to infer guilt.

E. Disposition

[37] I would dismiss the appeal.

Released: “JCM” FEB 09 2021

“J.C. MacPherson J.A.”

“I agree. Gary Trotter J.A.”

“I agree. Harvison Young J.A.”