Court of Appeal for Ontario

Date: 2024-05-30 Docket: C69240

Before: Fairburn A.C.J.O., Roberts and Trotter JJ.A.

Between: His Majesty the King Respondent

And: David Baichoo Appellant

Counsel: Jeff Marshman and Ingrid Grant, for the appellant Andrew Hotke, for the respondent

Heard and released orally: May 17, 2024

On appeal from the conviction entered by Justice Jennifer Woollcombe of the Superior Court of Justice, sitting with a jury, on August 13, 2019.

Reasons for Decision

[1] The appellant was convicted of first degree murder in the stabbing death of Nam Pham. The appellant admitted to killing Mr. Pham but claimed to have acted in self-defence when Mr. Pham pulled a gun on him. The appellant appeals on two grounds.

[2] First, the appellant submits that the Crown improperly cross-examined him on blood spatter evidence given by a witness who was qualified as an expert in this field. We disagree.

[3] The Crown was entitled to challenge the appellant on his version of events by questioning him about other reliable evidence that suggested a contradictory scenario. The appellant admitted causing the injuries to Mr. Pham. The Crown’s questions did not call for an understanding of the science behind the expert’s evidence. They were focused on the general placement of blood. The impugned questioning was brief. While defence counsel objected to this line of questioning, the trial judge ruled that it was a matter of fairness that the appellant be given the opportunity to respond to the clear conflict between his account as to what happened and where the blood was both present and absent. We see no error or unfairness in that ruling. We reject this ground of appeal.

[4] Second, the appellant submits the Crown improperly cross-examined him in another way. The appellant testified that he took the gun as he fled the scene and subsequently gave it to a criminal associate. The Crown suggested that it was bad luck that the appellant did not keep the gun. The appellant disagreed and suggested it was “God’s intervention.” The Crown engaged with that answer and then suggested that the evidence did not support that God was “looking after” the appellant, and that there would have been no need for a trial if the appellant was telling the truth about the gun and kept it. The respondent concedes that these questions should not have been asked. However, the exchange was brief, there was no objection, and no request for a caution in the trial judge’s final instructions. The trial judge properly instructed the jury on the burden of proof, prompting no objection from defence counsel. Again, we see no trial unfairness. We reject this ground of appeal.

[5] For these reasons, we dismissed the appeal at the conclusion of the hearing.

“Fairburn A.C.J.O.”

“L.B. Roberts J.A.”

“G.T. Trotter J.A.”