Court File and Parties

Court of Appeal for Ontario Date: 2024-07-19 Docket: C69547

Gillese, van Rensburg and Roberts JJ.A.

BETWEEN His Majesty the King Respondent

and Michael John William Ball Appellant

Counsel: Amy J. Ohler and Anne Marie Morphew, for the appellant Elise Nakelsky and Katie Doherty, for the respondent

Heard: May 28, 2024

On appeal from the conviction entered on May 5, 2019 by Justice Joseph R. Henderson of the Superior Court of Justice, sitting with a jury.

Roberts J.A.:

A. Overview

[1] The appellant appeals from his conviction for the first-degree murder of his former intimate partner, Erin Howlett. He challenges aspects of the jury charge as inadequate and erroneous and submits the trial judge erred in his treatment of the jury’s request to review portions of the trial evidence.

[2] These reasons explain why I do not accept that the trial judge made any reversible errors warranting appellate intervention and would dismiss the appeal. This was a very strong Crown case. When considered as a whole, as the jury was instructed to do, the evidence overwhelmingly supported the jury’s verdict of first-degree murder. There is no suggestion that this was an unreasonable verdict.

B. Background

[3] The appellant described his relationship with Ms. Howlett as “friends with benefits”. Evidence from the appellant’s friends who testified at trial indicated that in early June 2013, the appellant expressed anger to them about Ms. Howlett; he claimed she had “cheated on him” and stolen his drugs. According to his friends, he also expressed threats to kill Ms. Howlett and said he had purchased a black duffle bag and duct tape for that purpose, although they testified that they did not take the appellant’s threats seriously. For example, the appellant texted a friend on June 4, 2013, stating: “I contemplated tieing her up and getting a duffle bag” and “[t]he plot only thickened. I bought duck tape and a bag big enough…I was seriously gonna do it.” The Crown led evidence that, if accepted by the jury, could indicate that the appellant purchased a duffle bag and tape on June 1, 2013.

[4] Ms. Howlett left her home with her mother on June 27, 2013, at around 2 p.m. They stopped at the bank, and her mother eventually dropped Ms. Howlett off to meet a friend at a café. She had previously told her mother a false story that she was going to Toronto to write an exam on June 28, 2013. She arrived at the appellant’s home at some point in the afternoon. According to the appellant’s friends, they last saw her on that day on the porch of the appellant’s house at some point between 3-6 p.m. The appellant eventually left to help one of those friends with a move. According to the appellant’s friend whom he was helping move, the appellant left to return home around 8:00 p.m.

[5] Cellphone records indicated that between around 5 and almost 10 p.m., Ms. Howlett sent and received several texts. Her cellphone connected with the cellphone tower closest to the appellant’s residence. The appellant texted Ms. Howlett at around 5:30 p.m. to come to his friend’s house to which she responded by asking why she would have to come. Ms. Howlett’s sent a final text to a friend at 9:44:59 p.m. Her cellphone received the last recorded message at around 10:40 p.m., which was not returned. At that time, her phone connected with the tower along the route to the place where Ms. Howlett’s cellphone was later retrieved by the police from a sewer drain.

[6] Daniel Warwick was called as a witness for the Crown. He was an admitted drug dealer and the appellant’s business associate. He testified that he and the appellant planned to get together on June 27, 2013, to deal drugs following the appellant helping his friend move. At around 10:30 p.m., the appellant picked up Mr. Warwick. Mr. Warwick testified that the appellant told him that he had to dispose of a cellphone. He claimed that he drove with the appellant and helped dispose of what was later identified as Ms. Howlett’s cell phone in a sewer. Mr. Warwick testified that he then went to the appellant’s home and saw Ms. Howlett’s body on the appellant’s bed and noted blood on her face. He said that the appellant told him that he “choked [Ms. Howlett] out” because he discovered a photo of a penis on her cellphone, and that she had urinated and defecated. Mr. Warwick assisted the appellant in disposing of Ms. Howlett’s body in a black duffle bag in the Grand River, which was near where the appellant’s family business was located. He testified that he and the appellant cut up the foam mattress where Ms. Howlett’s body had lain and disposed of it and her purse in garbage bags.

[7] Ms. Howlett’s remains were found in a black duffle bag in the Grand River on July 5, 2013. Dr. Elena Bulakhtina, a forensic pathologist called by the Crown, testified that Ms. Howlett’s body was in an advanced state of decomposition, and the cause of her death could therefore not be ascertained. Dr. Bulakhtina was unable to ascertain whether there was any bruising on Ms. Howlett’s body. She also observed that there were no lacerations or skin tears on Ms. Howlett’s body. She could only exclude stab wounds, gunshot wounds, natural disease, and fractures. She could not exclude the following as possible causes of death: positional asphyxia while intoxicated, drug overdose, blunt force trauma to the head, chest compression, smothering, strangulation, or neck compressions. She testified that a victim could defecate or urinate from neck compression, but was unlikely to cough up blood, although she acknowledged that it was possible. She also clarified that a victim could defecate or urinate from other causes of death or from drug or alcohol impairment.

[8] Inger Bugyra, a toxicologist called by the Crown, testified that cocaine, methamphetamine, Venlafaxine (an anti-depressant), and benzoylecgonine (a metabolite of cocaine) were detected in Ms. Howlett’s liver. The amounts of the substances were not quantified. Ms. Bugyra could not say when the drugs were consumed or how much was consumed by Ms. Howlett.

[9] The jury deliberated for approximately three days during which time they posed a number of questions, one of which, discussed below, forms the subject of the third ground of appeal. On May 5, 2019, the jury found the appellant guilty of the first-degree murder of Erin Howlett.

C. Issues

[10] The appellant advances three grounds of appeal:

1. With respect to the jury charge: i) The trial judge failed to properly charge the jury on the standard of proof in relation to the evidence of Ms. Howlett’s death; and ii) The trial judge failed to deliver an adequate Vetrovec warning with respect to the testimony of Daniel Warwick: Vetrovec v. The Queen, [1982] 1 S.C.R. 811.
2. The trial judge further erred in his response to the jury’s request to review the evidence of the forensic pathologist.

D. Analysis

(1) Principles of Appellate Review of a Jury Charge

[11] It is well-established that an appellate court must adopt a functional approach when considering whether a trial judge made any reversible errors in the jury charge. The charge should be considered as a whole, in the context of the entire trial, including the closing submissions of the parties. The overarching question is whether the jury charge adequately equipped the jury to determine the issues before it. A trial judge enjoys a wide discretion in fashioning a jury charge and is entitled to deference on appellate review: see e.g., R. v. Daley, 2007 SCC 53, [2007] 3. S.C.R. 523, at paras. 31, 58; R. v. Goforth, 2022 SCC 25, at paras. 20-22; and R. v. Speers, 2017 ONCA 333, 347 C.C.C. (3d) 401, at para. 30.

(a) Instruction on the Burden and Standard of Proof

[12] The appellant argues that the trial judge failed to properly charge the jury on how the evidence of Ms. Howlett’s cause of death related to the Crown’s burden to prove beyond a reasonable doubt that the appellant committed an unlawful act causing death. The appellant specifically takes issue with the following underlined statement in the section of the jury charge that addresses the elements of the offence and the cause of Ms. Howlett’s death:

Did Michael Ball commit an unlawful act? And did Michael Ball’s unlawful act cause the death of Ms. Howlett?

These two elements are intertwined. For these two elements you must consider the evidence relating to the cause of Ms. Howlett’s death, including where Ms. Howlett died and who she was with when she died. If Mr. Ball was not present when the unlawful act was committed that resulted in Ms. Howlett death, you must find him not guilty. Also, if Ms. Howlett died of a drug overdose, you must find Michael Ball not guilty. [Emphasis added.]

[13] The appellant submits that the instruction effectively and erroneously required the jury to make a positive finding that Ms. Howlett died of an overdose before they could consider whether this evidence left them with a reasonable doubt of the appellant’s guilt. Defence counsel explicitly asked the trial judge to instruct the jury that even if they did not find or believe that Ms. Howlett died of a drug overdose, if that body of evidence left them with a reasonable doubt that the appellant caused her death, he was entitled to an acquittal. The appellant submits that the trial judge agreed with the proposed instruction. The trial judge therefore erred in failing to include this particular instruction in his jury charge.

[14] I am not persuaded that the trial judge made any reversible error. Having regard to the entirety of the jury charge, particularly in the context of the positions taken throughout the trial and the closing submissions of the Crown and defence, the jury was given the tools necessary to determine the issues in this trial.

[15] The jury charge and the Crown and defence closings repeatedly instructed the jury that the Crown bore the unwavering burden to prove beyond a reasonable doubt all the elements of the offence, that the appellant benefitted from the presumption of innocence until the Crown had satisfied its burden beyond a reasonable doubt, and that the appellant was not required to prove anything. The defence closing and the jury charge repeated the defence theory that Ms. Howlett had died of an overdose. The defence closing explicitly advised the jury that even if they did not find that Ms. Howlett had died of an overdose, if it left them with a reasonable doubt, they had to acquit the appellant. Importantly and relatedly, the jury charge reiterated that the jury was not to choose between the Crown’s theory and the defence theory, but the jury had to be satisfied that the Crown had discharged its burden of proof beyond a reasonable doubt before they could find the appellant guilty of the offence as charged.

[16] As a result, the failure to use the exact language from R. v. W.(D.), [1991] 1 S.C.R. 742 with respect to the impugned statement in the jury charge would not have confused the jury about the Crown’s burden and the standard of proof, and how they were to assess the defence theory that Ms. Howlett had accidentally overdosed on drugs and alcohol. I see no basis to intervene.

(b) Adequacy of the Vetrovec Instruction

[17] The appellant submits that the Vetrovec instruction was inadequate in two respects.

[18] First, the appellant argues that the trial judge erred by failing to give a stronger Vetrovec instruction about Mr. Warwick’s evidence that included the following caution articulated by the Supreme Court in R. v. Smith, 2009 SCC 5, [2009] 1 S.C.R. 146, at para. 15:

In cases where the unsavoury witness is an accomplice, it may be useful for the trial judge to explain why that witness would be able to concoct a particularly compelling story that falsely implicates the accused. All that an accomplice must add to an otherwise truthful, and potentially confirmable story, is the participation of the accused.

[19] I do not accept this submission. The Vetrovec warning in the jury charge fulfilled its objective. It strongly warned the jury that Mr. Warwick was an unsavoury, unreliable witness whose evidence had to be viewed with the greatest care and caution and that it would be very dangerous to accept his evidence without independent, confirmatory evidence: Vetrovec, at pp. 831-32; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 5, 11-14. It was made clear to the jury through the charge and through defence counsel’s extensive cross-examination that Mr. Warwick was an accomplice to the wrongful removal of Ms. Howlett’s body and that he had a motive to lie and implicate the appellant. There can be no doubt that the jury understood the negative aspects of Mr. Warwick’s character, background, and actions and that they seriously affected the credibility and reliability of his testimony.

[20] Moreover, it was unnecessary for the trial judge to include the specific language from Smith. In Smith, the appellants argued, as here, that a further accomplice instruction should be included in the charge. The Supreme Court reiterated that trial judges are afforded significant discretion in fashioning a Vetrovec caution and concluded that its omission was not a reversible error because, as here, the Vetrovec caution fulfilled its purpose of highlighting the reasons that the evidence in issue should be regarded with the greatest care and caution: Smith, at paras. 15-16.

[21] Second, the appellant submits that the confirmatory evidence identified by the trial judge could not have confirmed the testimony of Mr. Warwick. Specifically, he argues that the trial judge erred in identifying Dr. Bulakhtina’s evidence regarding involuntary urination and defecation as confirmatory evidence.

[22] I disagree. The trial judge provided three examples of possible confirmatory evidence: Dr. Bulakhtina’s evidence regarding involuntary urination and defecation, the discovery of Ms. Howlett’s cellphone in the sewer, and the cell tower and cell site records of the appellant’s and Mr. Warwick’s phones. The trial judge’s examples highlighted potentially independent and material confirmatory evidence that, if accepted, may be capable of restoring a trier of fact’s faith in the relevant aspects of the Vetrovec’s witness’s account: R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 15-16; Khela, at para. 43; and R. v. McFarlane, 2020 ONCA 548, at para. 73.

[23] Further, the cellphone evidence and the evidence of Dr. Bulakhtina were potentially capable, if accepted by the jury, of confirming the parts of Mr. Warwick’s evidence concerning the disposal of the cellphone and his observations about the state of Ms. Howlett’s body, and potentially restoring the faith of the jury in his testimony.

[24] Finally, the trial judge’s instructions were balanced and explicitly set out that Dr. Bulakhtina’s evidence on involuntary urination and defecation could result from other causes of death. The jury was free to consider this or other evidence as confirmatory.

[25] In any event, as this court concluded in R. v. McFarlane, 2012 ONCA 355, at para. 14, leave to appeal refused [2013] S.C.C.A. No. 217, the inclusion of examples that are self-evident “will usually do no harm and can, on occasion, help.” Moreover, the failure to articulate the self-evident in a charge does not constitute reversible error: McFarlane, at para. 14. That is the case here.

[26] I would dismiss this ground of appeal.

(2) The Trial Judge’s Treatment of the Jury’s Request to Review the Evidence of the Forensic Pathologist

[27] The appellant submits the trial judge erred in only replaying part of Dr. Bulakhtina’s testimony.

[28] At the end of the second day of the jury’s deliberations, the jury requested transcripts of the testimony of Dr. Bulakhtina and Ms. Bugyra. After hearing counsel’s submissions in the absence of the jury, the trial judge ruled that Dr. Bulakhtina’s evidence would be played back to the jury in the courtroom, and that the jury would subsequently be provided with transcripts of her evidence. He determined that he would then inquire of the jury if they needed Ms. Bugyra’s evidence.

[29] The day after the jury’s question, at around 12:04 p.m., the trial judge brought the jury back into the courtroom and advised them of his ruling. They then listened to about 40 minutes of the played back testimony of Dr. Bulakhtina. The court recessed. During that break, the jury provided the following note to the trial judge: “Dear Justice Henderson, we provided our letter for the two expert witnesses last night. Since resuming our deliberations this morning, our questions for clarification were answered in the room. We no longer require this witness or the second witness’s audio or transcripts.”

[30] The trial judge rejected defence counsel’s submission that the jury should continue to rehear at least Dr. Bulakhtina’s cross-examination to have a balanced view of the evidence. He concluded that the jury’s note suggested that, prior to the playback, the jury had resolved the question that had prompted their request for the review of the evidence in the jury room. He also determined that none of the evidence played back was contentious and required the jury to hear the related portion of the cross-examination.

[31] The appellant submits the trial judge erred because the jury only reviewed part of Dr. Bulakhtina’s evidence concerning the central issue at trial – the cause of Ms. Howlett’s death – without any corresponding cross-examination.

[32] I disagree. The trial judge made no error by acceding to the jury’s further communication that they did not require any further review of the evidence. The trial judge’s exercise of his discretion was reasonable and entitled to deference.

[33] As the triers of fact, it was up to the jury to determine how much or how little of Dr. Bulakhtina’s evidence they needed to review. It is incumbent on a trial judge not to leave the jury with a distorted view of the evidence, and to ensure that it is presented “together with any other portions of the evidence that qualify or contextualize it”: R. v. D.D. (1998), 129 C.C.C. (3d) 506 (C.A.), at para. 7, aff’d 2000 SCC 43, [2000] 2 S.C.R. 275. However, the trial judge should not otherwise interfere where there is a clear indication from the jury, like here, as to the specific evidence they wish to review and the evidence requires no qualification: R. v. McLellan, 2018 ONCA 510, 362 C.C.C. (3d) 183, at paras. 64-66, leave to appeal refused, [2019] S.C.C.A. No. 338; R. v. J.B., 2019 ONCA 591, 378 C.C.C. (3d) 302, at paras. 82-83.

[34] Importantly, there was no need to play back Dr. Bulakhtina’s cross-examination in order to ensure that the evidence heard by the jury was not incomplete or inaccurate. The cross-examination did not qualify or contextualize it. The material portion of the evidence reviewed consisted only of Dr. Bulakhtina’s uncontroversial testimony that she could not determine the cause of death because of the body’s advanced state of decomposition. As the cross-examination did not alter Dr. Bulakhtina’s evidence on this point, the jury was not left with a distorted view of her evidence. As a result, there was no need for the jury to hear the cross-examination on this uncontested point.

[35] Accordingly, there was no substantial wrong or miscarriage of justice caused to the appellant in the circumstances of this case: R. v. Shortreed (1990), 54 C.C.C. (3d) 292, at p. 308; D.D., at para. 9. I would therefore reject this ground of appeal.

E. Disposition

[36] For these reasons, I would dismiss the appeal.

Released: July 19, 2024 “E.E.G.” “L.B. Roberts J.A.” “I agree. E.E. Gillese J.A.” “I agree. K. van Rensburg J.A.”