His Majesty the King v. William Savage, 2023 ONCA 240

COURT OF APPEAL FOR ONTARIO

DATE: 2023-04-05 DOCKET: C68304

Roberts, Nordheimer and Thorburn JJ.A.

BETWEEN

His Majesty the King Respondent

and

William Savage Appellant

Counsel: Paul Calarco and Michael Bartlett, for the appellant Lisa Joyal, for the respondent

Heard: March 14, 2023

On appeal from the conviction entered by Justice Alexander Sosna of the Superior Court of Justice, sitting with a jury, on November 22, 2019.

Nordheimer J.A.:

[1] William Savage appeals his conviction for first-degree murder reached after a trial with a jury. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. I now provide those reasons.

Background

[2] The appellant and the deceased were friends. They were also involved together in a marijuana business, including running many grow ops. Several witnesses provided evidence that the deceased had lent money to the appellant, which had not been repaid in full. The witnesses did not agree on the amount owed by the appellant or the purpose to which the funds would be used. At trial, the appellant denied that the deceased had advanced him money for these purposes. However, he agreed that he owed the deceased money, albeit for less than the other witnesses claimed.

[3] In early October 2015, the deceased went missing. Friends and family started to search for him. They could not find the deceased at his home. A friend of the deceased, who was also involved in the drug trade, testified that the deceased had told him, shortly before he disappeared, that he was going to meet the appellant up north. The deceased told this friend that he was concerned about going up north to meet the appellant and provided the friend with the appellant’s name, a photo of the appellant, and the appellant’s address.

[4] The police found the deceased’s automobile in the middle of October. However, it was not until May 6, 2016, that partial remains of the deceased, including a skull, were found in a forested area in Haliburton. A post-mortem did not reveal a cause of death, because of the limited remains. Forensic anthropological examination revealed the remains were very incomplete, showed evidence of extensive scavenging, and suggested that a bear was the primary scavenger.

[5] Before the discovery of the remains, the police had been investigating the disappearance of the deceased. Among other things, they spoke with the appellant more than once.

[6] The main prosecution witness was the former common law partner of the appellant, Shelly Kinney. She gave evidence that she had asked the appellant whether he had killed the deceased and that the appellant nodded his head affirmatively but would not elaborate. Thereafter, the two went to a restaurant where she said that the appellant provided a full confession to her, including that he had lured the deceased to an area under the pretext of looking for a place to grow marijuana, that he took out a gun he had concealed previously, and that he shot the deceased in the heart. After this, he covered the body with branches. The appellant took the deceased’s phone and responded to text messages, pretending to be the deceased. He also took the deceased’s wallet.

[7] Ms. Kinney did not go to the police with this information at the time. She said that she did not do so because she did not know if the deceased was actually missing. She was also having problems with her two children and she was afraid that engaging with the police, especially respecting the appellant, would risk alienating her children. She eventually told the police what the appellant had confessed to her about a year after the deceased’s disappearance, in October 2016.

[8] The appellant gave evidence at the trial. He admitted that he had met with the deceased on October 1, 2015, and again on October 2, 2015. Their meetings had been for the purpose of scouting out possible locations for a marijuana grow‑op. The appellant said that he and the deceased had parted ways after their meeting on October 2, 2015. He denied killing the deceased. He denied that he had used the deceased’s phone pretending to be the deceased. He denied that the deceased had threatened him over the debt that he owed the deceased.

[9] The appellant was confronted with his first statement to the police, given on October 8, 2015. He acknowledged having lied to the police in that statement and again in a second statement, given on February 4, 2016. He said that he lied in the first statement because he was not sure how serious the matter was involving the deceased and that he did not want to reveal to the police their plans for a marijuana grow-op. For the second statement, the appellant said that he stuck to his first statement.

[10] The appellant had access to three guns at his home: two shotguns and a rifle. They had been given to him and Ms. Kinney by his mother-in-law and were intended for the appellant’s son as a graduation present. Ms. Kinney told the police about the guns. The police obtained a search warrant, but they only found the two shotguns, not the rifle.

[11] At trial, the prosecution led evidence that two live .308-calibre rounds were found near the deceased’s remains. The prosecution also called a firearms expert, who brought to court a Winchester .308 rifle, which was the same model as the rifle that had been given to the appellant for his son as a graduation present. The expert said that it was possible that a firearms user could have cycled the weapon and that would eject a cartridge from it. This could be done to see if the gun was loaded and may result in ejecting a live round, leaving it behind. He agreed that .308-calibre ammunition and the firearms made for them are very common in Canada, used for hunting, and that cartridges could be ejected without the gun being fired at all, or they could just be dropped by someone.

[12] A digital forensics and data recovery expert was also called to give evidence about text messages found on the appellant’s cell phone. The expert found that, on October 1, 2015, the deceased was in contact with the appellant, exchanging text messages. The text messages referred to an apparent quantity of something, and about a meeting the next day. On October 2, 2015, text messages were exchanged up to the early afternoon. The expert found that many text messages had been deleted from the appellant’s phone. The appellant gave evidence that he had deleted the text messages because they related to drug activity.

Grounds of Appeal

[13] The appellant raises a number of grounds of appeal:

(i) the Crown led oath-helping evidence from Ms. Kinney and the trial judge failed to caution the jury sufficiently not to use it to bolster her credibility, particularly when the Crown, in her closing address, invited the jury to use the same oath-helping evidence in considering the credibility of Ms. Kinney;

(ii) the trial judge otherwise failed to caution the jury sufficiently regarding the reliability of Ms. Kinney, and, in particular, failed to caution them as to the level of scrutiny to be applied to her evidence, especially since she had lied under oath in prior statements;

(iii) the trial judge failed to charge the jury correctly on the limited use of ante‑mortem statements of the deceased, allowing them to be used as evidence of the motive of the appellant;

(iv) the trial judge failed to charge the jury correctly on the use of after the fact conduct, effectively charging the jury that they should decide whether the appellant engaged in the post-offence conduct because he was conscious that he committed the offence charged, and further in limiting its use to the offence charged, rather than contemporaneous, but distinct, criminal conduct;

(v) the trial judge failed to correct statements in the Crown’s address which mis‑stated evidence, invited the jury to engage in speculation, stated that reasonable doubt must be based on the evidence presented alone, and that the absence of evidence did not undermine the evidence presented;

(vi) the trial judge erred in restricting the evidence that could be used in consideration of R. v. W.(D.), [1991] 1 S.C.R. 742 principles to that of the appellant alone, and;

(vii) the trial judge erred in over-charging the jury, specifically by instructing them on second-degree murder and manslaughter, neither of which was reasonably available on the evidence presented and were inconsistent with the theory presented by the Crown.

I will deal with each of these grounds in turn.

(i) Oath-helping

[14] The appellant complains that the Crown led or made extensive references to evidence from Ms. Kinney about the sorrow that she endured, how she was affected as a mother, her familial alienation, and the burden she suffered. The appellant characterizes this as the Crown asking the jury to accept her evidence based on oath-helping. The appellant says that the trial judge failed to give a proper instruction to the jury on this issue.

[15] I begin by saying that I do not accept that this evidence is properly characterized as oath-helping. Ms. Kinney waited a number of months before telling the police about the appellant’s confession. It was necessary for the Crown to lead evidence from Ms. Kinney regarding the reasons for that delay. Most of the evidence about which the appellant complains is evidence directed to those reasons.

[16] Further, the Crown could anticipate that the defence would strongly challenge Ms. Kinney’s evidence. Given their former domestic relationship, the Crown could anticipate that the defence would suggest that Ms. Kinney was vengeful and bitter and would falsely accuse the appellant to get back at him. Consequently, it was proper for the Crown to lead evidence that would provide a broader context for the jury to consider any such suggestion.

[17] On that point, there is a distinction to be made between evidence that goes directly to a witness’s credibility (i.e. a witness stating “in my opinion the witness is truthful”), which is inadmissible, and evidence about a feature of the witness’s behaviour or testimony, which may be admissible even though it will likely have some bearing on the trier of fact’s ultimate determination of the question of credibility: R. v. Llorenz (2000), 145 C.C.C. (3d) 535 (Ont. C.A.), at para. 28, appeal as of right but appeal discontinued, [2000] S.C.C.A. No. 335. The evidence here falls into that latter category. As I have explained, the evidence was not called solely for the purpose of enhancing Ms. Kinney’s credibility nor was it even primarily called for that purpose. It was called to explain the delay in Ms. Kinney telling the police about the appellant’s confession.

[18] However, even if this evidence is properly characterized as oath-helping, that fact, by itself, did not render the evidence inadmissible. As a general proposition, oath-helping evidence is inadmissible if it is led only for the purpose of bolstering a witness’ evidence. If there is another purpose to which the evidence relates, the evidence is not rendered inadmissible simply because it may also include an element of oath-helping. This point has been made in many cases including, for example, in R. v. B.(F.F.), [1993] 1 S.C.R. 697, where Iacobucci J. said, at p. 729:

The rule against oath-helping prohibits a party from presenting evidence solely for the purpose of bolstering a witness' credibility before that witness' credibility is attacked. [Emphasis added.]

[19] I do not see any error in the manner in which the trial judge dealt with this evidence. First, he gave a cautionary mid-trial instruction directly related to this evidence, to which no objection was taken. Second, the evidence was a small part of the lengthy evidence that Ms. Kinney gave. Third, as the appellant concedes, Ms. Kinney was entitled to provide an explanation why she did not report the appellant’s confession to the police earlier than she did. I do not accept that the Crown was obliged to truncate or limit her explanation to avoid a complaint of oath‑helping.

(II) Lack of caution regarding Ms. Kinney’s evidence

[20] The appellant complains that the trial judge did not give the jury a clear, sharp warning about relying on Ms. Kinney’s evidence. The appellant says that the trial judge ought to have given the equivalent of a Vetrovec v. The Queen, [1982] 1 S.C.R. 811 warning with respect to Ms. Kinney’s evidence, especially because she lied under oath to the police.

[21] I do not accept the appellant’s position. The trial judge spent considerable time reviewing the evidence of Ms. Kinney and the problems with it. He made it very clear to the jury that they should approach her evidence with caution. He mentioned her animus towards the appellant, her disclosure in bits and pieces, how the alleged confession came about, and other similar problems. The trial judge also reviewed with the jury the fact that Ms. Kinney “was willing and prepared to obstruct the administration of justice” by suggesting that she would not give evidence at the trial unless some charges involving her son were withdrawn. He then completed his review of her evidence by saying “I suggest that you give Kinney’s evidence careful and cautious scrutiny.”

[22] I believe that the trial judge did all that he was required to do to bring the problems surrounding Ms. Kinney’s evidence to the jury’s attention and to caution them about it. It was up to the trial judge to decide whether Ms. Kinney was the type of witness that required a full Vetrovec warning: R. v. Brooks, [2000] 1 S.C.R. 237, at paras. 2-3. No error has been shown that would allow this court to interfere with his conclusion that such a warning was not required. On that point, I reject the appellant’s submission that the mere fact that a witness lied under oath compels that a Vetrovec style warning must be given. That said, the trial judge gave a very strong cautionary instruction regarding Ms. Kinney’s evidence. I do not see any basis for the appellant’s suggestion that even more was required.

(III) Ante-Mortem Statements

[23] The appellant complains that the trial judge failed to give the jury adequate instructions regarding the ante-mortem statements of the deceased to the effect that he was angry about the outstanding debt owed by the appellant and that he was considering taking action to force payment.

[24] Again, I do not accept the appellant’s complaint. The trial judge gave proper instructions on the use of ante-mortem statements and the care with which the jury should approach them. He pointed out that the deceased was not before them and, thus, they did not have the benefit of observing him or seeing him cross-examined. There are no errors in the instructions that the trial judge gave. I would add, on this point, that it is somewhat telling that trial counsel did not raise any objection about the instructions or the admissibility of the ante-mortem statements.

(IV) Post-Offence Conduct

[25] The appellant says that his conduct after the killing, that is, lying to the police, not wanting the police to interview his son, and being upset with the main Crown witness, was all related to him not wanting his drug activities to come under scrutiny. He says that the trial judge did not adequately instruct the jury on this issue. The appellant also says that the trial judge committed the same error as occurred in R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, that is, by suggesting that the jury had to conclude that the appellant had committed the offence charged as a precondition to using the post-offence conduct evidence.

[26] I do not agree that a Hall error was made by the trial judge. The trial judge did not instruct the jury in the manner that occurred in that case. In particular, the trial judge did not tell the jury that they had to be convinced that this conduct had to be the result of the appellant having committed the offence charged.

[27] The appellant’s submission that when the trial judge told the jury “[f]irst, decide if William Savage actually did or [ sic ] what he is alleged to have done” was an instruction to decide whether the appellant had committed murder, involves a misreading of the trial judge’s instructions. That first stage of the instruction on post-offence conduct is consistent with the recommended instruction from the model jury instructions. The reference to what the trial judge meant when he said what the appellant actually did or was alleged to have done was made clear in the very next paragraph where the trial judge said “did or what the Crown alleges he did by way of after the fact conduct”. The trial judge further stated that the jury then had to consider whether that conduct was the result of the appellant being “aware of having been involved in a criminal offence or for some other reason”. That instruction is not directly related to the offence charged but rather to any criminal offence. The post-offence conduct that this instruction was directed to, and its permissible use, would have been clear to the jury.

[28] In addition, the trial judge instructed the jury to consider alternate explanations for the conduct, and also instructed the jury to only use the evidence in determining whether guilt has been proven beyond a reasonable doubt in the context of their assessment of the whole of the evidence.

(V) The Crown’s Closing Address

[29] The appellant complains that the Crown engaged in improper submissions in her closing address in three respects. One was with respect to misleading as to the effect of evidence on the issue of whether there was blood on the deceased’s jacket found at the scene. Another was misstating evidence, including by reciting the explanation that Ms. Kinney gave for her delay in reporting the confession to the police. Yet another was asking the jury to act on improper legal principles by misstating what constitutes reasonable doubt.

[30] On the first issue, the Crown was responding to a suggestion, made by the defence in his closing address, that the jacket found was never tested for blood. The defence suggested that that fact undermined the Crown’s theory of the case. In response, Crown counsel asked the jury, in her closing, if such evidence would actually help them due to the remains being eaten by animals and the delay in finding them. The appellant says that the Crown misled the jury in so stating.

[31] I do not agree. On this point, the appellant now attempts to rely on various academic articles on the subject of blood staining in an effort to bolster the argument that one would have expected to find blood on the deceased’s jacket. None of this material was put before the trial judge nor was there any expert evidence led on the subject. The appellant cannot now attempt to rely on this material for the purposes of his appeal.

[32] It would be preferable if counsel on both sides did not engage in speculation in the course of their closing addresses. The fact remains that there was no evidence on the subject and the jury should not have speculated on it, one way or the other. The most that could be suggested was, absent forensic evidence explaining why no blood might be found on the jacket, the lack of blood left a gap in the Crown’s case that might give rise to a reasonable doubt. Counsel should have left the matter at that. However, the defence, having embarked on their own form of speculation, cannot properly complain if the Crown does the same. In those circumstances, it was reasonable for the Crown to suggest that testing would not have helped resolve any issues in the unusual circumstances of this case.

[33] On the second issue, the Crown was entitled to respond to the attack that the defence launched against Ms. Kinney. The Crown had the right to refer to the evidence that Ms. Kinney gave as explaining her delay in reporting the appellant’s confession to her and to ask the jury to accept her explanation. The Crown is entitled to argue its position forcefully and is afforded considerable latitude in doing so: R. v. John, 2016 ONCA 615, at para. 77, leave to appeal refused, [2017] S.C.C.A. No. 101. The Crown did not step over the line between permissible and impermissible comments by reciting this evidence.

[34] Simply put, neither of these issues required the trial judge to enter the fray.

[35] On the third issue, the Crown said, in her closing, “reasonable doubt means what it says, the doubt must be reasonable and it must be based on evidence.” It is, of course, well-established that reasonable doubt can arise on the evidence or the lack of evidence. It is clear that the Crown misspoke. However, it is of no consequence. The trial judge instructed the jury correctly on the meaning of reasonable doubt. It is not suggested otherwise. Further, the trial judge told the jury that they take the law from him and from no one else. Reinforcing that fact is that the Crown herself told the jury, “His Honour, will instruct you on the meaning of reasonable doubt”, as did defence counsel.

[36] There is no basis for the suggestion that this slip by the Crown had any impact on the fairness of the trial.

(VI) The W.(D.) Issue

[37] Unfortunately, the trial judge in giving his W.(D.) instruction expressed it only in relation to the appellant’s evidence. Indeed, he said “[n]ow we are dealing just solely with William Savage’s evidence here.” That is an error. In giving his W.(D.) instruction, the trial judge ought to have told the jury to consider any evidence that was exculpatory in terms of raising a reasonable doubt: R. v. B.D., 2011 ONCA 51, at para. 114.

[38] Nevertheless, the trial judge’s error on this point is not fatal in this case. I reach that conclusion for a number of reasons. First, the exculpatory evidence, outside of the appellant’s evidence, was minimal and equivocal. Second, the trial judge properly instructed the jury on the burden of proof. The fact that the trial judge correctly instructed on that issue is a strong indication that the jury was not left in doubt as to the burden resting on the Crown: W.(D.), at p. 758. Third, immediately prior to the impugned W.(D.) instruction, the trial judge had instructed the jury to consider all of the evidence in determining whether the Crown had proven the offence beyond a reasonable doubt. Fourth, trial counsel did not raise any objection to the W.(D.) instruction.

[39] I do not believe that the jury would have been misled in any way with respect to their approach to the evidence or that the burden of proof rested on the Crown throughout. The W.(D.) error, while unfortunate, does not require a new trial: R. v. Parris, 2013 ONCA 515, at paras. 75-76.

(VII) Overcharging

[40] The appellant contends that it was an error, in the circumstances of this case, for the trial judge to leave second degree murder and manslaughter with the jury. The appellant says that this was either a planned and deliberate murder by the appellant or the appellant was not guilty. There was nothing in between those two possible results. He says that by leaving included offences with the jury, it may have distracted them from their central task. He also says that by leaving included offences, the jury might think that the appellant was trying to escape the more serious charge.

[41] I accept that, depending on the positions taken by counsel, the trial judge might have only left first-degree murder with the jury given the facts of this case. I note, though, that defence counsel first agreed that the included offences should be left with the jury. He only changed his position after receiving instructions from the appellant.

[42] I also note, as a general proposition, that included offences are only removed from the jury’s consideration when, on a consideration of the totality of the evidence and having due regard to the position of the parties and the proper application of the burden of proof, there is no realistic possibility of an acquittal on the main charge and a conviction on an included offence: R. v. Ronald, 2019 ONCA 971, at para. 42.

[43] In this case, there was a possibility that the jury might have had a reasonable doubt about planning and deliberation. They may have accepted that the appellant confessed to Ms. Kinney but then reject, or have a doubt about, her evidence about the details, specifically the evidence of planning and deliberation, leaving second degree murder an available verdict. Given the alleged friction between the appellant and the deceased, it was possible that the jury might have had a reasonable doubt whether the killing was planned or was the result of a spontaneous reaction arising from an argument between the two.

[44] In the circumstances of this case, the trial judge cannot be faulted for deciding to leave the included offences with the jury. After all, a trial judge has an obligation to leave all defences and verdicts reasonably available on the evidence with the jury for its consideration: R. v. Ali, 2021 ONCA 362, at para 74. There is no error in the trial judge’s conclusion to do so in this case.

[45] I would also reject the suggestion that the appellant was somehow prejudiced by having the included offences left. It would seem, if anything, it would have enured to his benefit, given that it could have led to him being convicted of a lesser offence.

Conclusion

[46] It is for these reasons that the appeal was dismissed.

Released: April 5, 2023 “L.B.R.” “I. V. B. Nordheimer J.A.” “I agree. L.B. Roberts J.A.” “I agree. J.A. Thorburn J.A.”