CITATION: R. v. SAUVE, 2017 ONSC 2577

COURT FILE NO.: CJ8844

DATE: 30 May 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Cynthia Jennison, for the Crown

Applicant

• and -

CLARK ERIC SAUVE

James Marentette, for Clark Eric Sauve

Respondent

HEARD: April 3, 4, 5, 6, 7, 10, 11, 12, 2017

The Honourable Mr. Justice H.S. Arrell

REASONS FOR JUDGMENT

INTRODUCTION

[1] Clark Eric Sauve is charged that on the 29^th^ day of December 2014 in the City of Cambridge did commit second degree murder on the person of Linda Sauve contrary to Section 235(1) of the Criminal Code of Canada.

[2] Linda Sauve was the wife of Clark Eric Sauve. Mr. Sauve pleaded not guilty to this charge and elected to be tried by judge alone with the consent of the Crown.

THE FACTS

[3] The police received a 911 call on the 29^th^ of December 2014 at 2:45 a.m. The caller, who was a male, requested the police and an ambulance. He stated that he had been beaten and he thought his wife had been shot. He thought people were still in the house. The caller gave the address of 66 Rouse Avenue in Cambridge which was the home of Mr. and Mrs. Sauve. The caller indicated he was in a wheelchair; he had been beaten, and was lying on the floor. The caller was asked for a description of the people in the house. He responded that he could not give a description other than they were both females and they both had Halloween type masks on their heads. He confirmed he was upstairs as was his wife. The call ended with the caller shouting to the police who were entering the house.

[4] Sergeant Grift was dispatched at 2:46 a.m. and met Constable Foster at 66 Rouse Ave. The outside of the house was dark. The front door was closed but unlocked. Upon entering the house, it also was dark. Sergeant Grift called out and a male voice answered from upstairs. Two other officers then arrived. Sergeant Grift sent them upstairs while he and Constable Foster cleared the first floor and the basement.

[5] Sergeant Grift stated there was no sign of anyone else in the house. There was no sign of forced entry at the front door.

[6] Sergeant Grift then went upstairs and found the accused on the floor of his bedroom, in his underwear, leaning on his elbow. His wheelchair was at the foot of the bed. He heard the accused say his wife was in the next room. The doors to the other two rooms on the second floor were closed. Sergeant Grift then checked the room that was described as an office. The light was on in that room when he opened the door. That room had a closet with several gun lockers in it which were closed.

[7] Sergeant Grift then went to the other bedroom and opened the door. Again the light was on in this room. Linda Sauve was lying on the bed on her back. One arm was folded across her chest and one hanging down the side of the bed. She had on a black top and was naked from the waist down. The covers were neatly folded back. There was blood covering her face and blood splatters on the wall above her head and on the floor. There was a shell casing on the floor. She had an injury to her right cheek and forehead consistent with gunshot wounds.

[8] Sergeant Grift then went back to the accused’s bedroom and saw that his bed had been pushed aside and a gun was observed on the floor. It had not been visible to him when he first attended the room as the bed covered it. Sergeant Grift was then told by the EMS personnel, who had arrived, that Mrs. Sauve was dead. Sergeant Grift said to the accused, “You did this didn’t you.” According to Sergeant Grift’s evidence, the accused looked at him and said nothing. Without prompting, the accused then said, that the keys for the gun cabinet were in the other room.

[9] Sergeant Grift did a further search and found the back door closed but unlocked. Officer Foster had earlier found it locked and unlocked it to look in the back yard. The police found no sign of forced entry at any door or any window. Officer Foster was directed to stay with the accused and the gun and make sure the accused did not wash his hands.

[10] The evidence is clear that Mrs. Sauve was lying with several pillows under her head with her arms as previously described and the covers neatly folded back, exposing her entire body. All of the police and EMS personnel testified that there was nothing to indicate any sort of struggle in her room, the accused’s room, or anywhere in the house. The photographs taken by forensics, of the accused’s room, the deceased and her room, and the balance of the house confirm that evidence. There is no evidence that anything from the house was stolen. Mrs. Sauve’s purse was on the kitchen counter and undisturbed. None of the numerous guns in the house were taken.

[11] Sergeant Grift saw nothing in viewing the accused, to indicate he had any injury whatsoever or had been beaten in any way. This evidence was confirmed by Officer Foster and the paramedics. The accused was arrested later that evening.

[12] Constable Foster heard the EMS tell the accused, his wife was dead. He heard him reply, “Fuck off that’s not true this whole family would fall apart.” He also heard the accused tell the EMS that one of the female intruders came to the side of his bed and struck him in the head. He then told Officer Foster that he heard two females screaming at his wife for the alarm code. The females then came into his room, turned on his light, and one of the females had a gun with which she hit him over the head. He says he then grabbed the gun with his right hand. The accused was then transported to the hospital.

[13] Officer Foster stayed with the accused at the hospital and asked for a description of the females to which he replied, that the one with the gun was slender, not even five feet tall. Both were wearing jeans. Both of the females were beating on him.

[14] The evidence confirmed that the house was equipped with an electronic lift from the main floor to the second floor. It also confirmed a wheelchair at the foot of the bed in the accused’s bedroom and a wheelchair at the bottom of the stairs, at the electronic lift.

[15] The accused told Mr. Bilyk, one of two paramedics who attended, that he was struck by fists a number of times and later said that possibly he had been hit by a gun. According to the accused, he simply woke up and the person was in the room with him. He said he heard noise in the next room; then a scream, then a gunshot, and then silence. The only description he could give of the intruders was that they were female. A thorough examination of the accused by the paramedics found no injury and all medical testing of him was normal other than a slightly elevated heart rate.

[16] The accused told Mr. Heikoop, the other paramedic, that he was assaulted by “two vicious bitches.” He told this witness he was pistol whipped. He mentioned hearing yelling and screaming in the room next door and someone asking for a code. It was then quiet and then the intruders came to him. Mr. Heikoop agreed the accused was upset and distraught over the death of his wife and demanded several times that EMS do more to try to resuscitate her.

[17] The police canvassed the neighbourhood and no one saw or heard anything out of the ordinary. Several back yards were searched with the canine unit one and a quarter hours after the 911 call and nothing was found. The police who saw the deceased and her room confirmed the forensic pictures accurately portrayed what they had seen, other than initially her right arm was hanging down the side of the bed. It was placed on her chest by the EMS personal.

[18] On December 29^th^ Det. Huhtanen, a firearm expert who collected the evidence, met with the accused in hospital and swabbed for gunshot residue from his hands, as well as collecting some clothing. On December 30^th^ he attended at the accused’s residence to log and collect various pieces of evidence. He wore rubber gloves and a mask throughout. He located the semi-automatic Mauser handgun beside the accused’s bed on the floor. The gun slide was open approximately two centimeters which he found unusual, as that slide is usually either fully open or fully closed. He also looked in the gun and saw the head of a bullet in the chamber. Pictures of the gun were taken and were made exhibits. He confirmed that, to operate the gun, the slide must be flush with the handle of the gun.

[19] Det. Huhtanen noticed that there was grinding on the barrel of the gun in 3 locations fully removing any serial number or identification. Upon taking the magazine out of the gun, there was a cartridge in it as well. The magazine was put in a separate evidence bag, as was the gun. The magazine was fully inserted and locked in place when he found the gun.

[20] This witness also found a bullet in the pillow behind the deceased’s head and a bullet in the drywall imbedded in the insulation above her head.

[21] On January 3^rd^, 2015, at the police station, photographs of the gun and bullets were taken. At all times, this officer testified he was wearing gloves and a mask. He stated that every time he touched a piece of evidence he would put on new gloves, and then dispose of those gloves, and put on new gloves again before touching anything else. He was fully cognizant of the fact of cross contamination and took all precautions to avoid it.

[22] The two bullets recovered from the gun chamber and from the magazine, along with the gun, were sent to the Center of Forensic Sciences in Toronto along with some clothing.

[23] Detective Huhtanen testified that there were numerous guns in the home and several gun lockers in the garage with guns located there as well. He also located what he considered a great deal of ammunition. In total, he found approximately 9 handguns, and several long guns. He found two white pails of various types of ammunition. He also found two empty cartridges in the deceased’s bedroom that fit the Mauser pistol and which had been fired. He sent those to the Center of Forensic Sciences.

[24] In cross examination Detective Huhtanen agreed he did not enter a note in his notebook each time he changed gloves. He did note however, that he used fresh gloves each time he touched an item. He indicated he actually remembers changing the gloves each time he touched an item. He knew he was attempting to extract DNA and he was well aware of the real issue of cross contamination. He agreed his actions were not video recorded. He was cross examined skillfully and in detail as to exactly how he handled the gun and placed it in the evidence bags. His evidence was slightly inconsistent with what he said at the preliminary hearing on May 16^th^, 2016. I find little turns on that minor inconsistency.

[25] Detective Huhtanen recalled inserting his finger rather than an instrument to remove the bullet from the gun. This was slightly different from what he said at the preliminary inquiry. He agreed that if his hand, which was holding the gun, was the same hand that held the bullet, there could be a transfer of DNA from the gun to the bullet unless he re-gloved before touching the bullet after holding the gun. He again emphasized that he did indeed change gloves every time he touched something different. He agrees that his right index finger would have touched the ejection port as he was attempting to take the cartridge out. He did not hold either the gun or the bullets while being photographed. That was done by his partner.

[26] Christian Radu purchased the accused’s alarm service business. He received some training from the accused with regards to his own alarm system “paradox”.

[27] Mr. Radu was well acquainted with the accused`s system. It was operated by either a code put into the alarm manually or by a four button fob. The accused had a motion detector, door detector, and sound sensors in his home. He also had an alarm siren which supposedly would sound if one of the sensors was breached. He also indicated that with this particular alarm system, some parts could be on while people were in the home and other parts off. For example, the door and sound sensors could be on while movement was off. This was called “the stay” mode.

[28] The accused had a sound sensor in the living room and one in the kitchen. The sound sensors would detect a window being broken, a plate being broken, shaking keys nearby and for sure a gunshot. He testified that the sound sensor would clearly hear a gunshot in an upstairs bedroom. He is not sure if it would hear yelling and screaming in a bedroom upstairs. There were no sensors on the second level. The accused was very knowledgeable about his alarm system and a well-qualified installer, according to Mr. Radu.

[29] Mr. Radu extracted data from the alarm system. This information showed that on December 28^th^, 2014, at 10:00 a.m. “the stay” mode of the alarm was activated by the fob. This meant that individuals could walk around in the house without triggering the alarm. At 2:11(it was agreed by counsel there was an 11 minute time differential to real time) on December 29^th^, 2014, the living room and kitchen sensors went off. At 2:12 the alarm code was entered into the system and the alarm was turned off. The actual code must be punched into the alarm in person if it is activated. The fob cannot be used. Both the accused and his wife had such a code. He testified that the siren would have gone off when the alarm was triggered, but if it was not hooked up to the speaker, it would have made no noise. He did not test the siren.

[30] On cross-examination Mr. Radu indicated there is usually a delay when one enters through the door before the alarm goes off to allow the home owner to get to the alarm panel and turn it off. He indicated the installer is the only one who can set the delay mode. He confirmed the log would not show the door being opened if the code was put in within the delay time. It would only show that the code was entered, and the system disarmed. There is no delay with regards to the sound sensors. They are instantaneous.

[31] He recalls the accused being quite fussy about his alarm system. He states that the system log shows that the alarm was armed and disarmed regularly.

[32] Mr. Philip Holgate is the president of the company ACI which monitored the accused’s alarm system and it was tested once per month. Significantly, it was set that the police were not to be dispatched by ACI if there was a burglary. Instead ACI was simply to notify the home owner. There were 13 different burglary zones in the home being various doors and windows and 11 fire zones. There were motion detectors on the first and second floor as well as the basement, and sound sensors in the living room and the kitchen. He testified that the sound system would clearly hear a gunshot. He thought as well that the sensors would hear any screaming or yelling from the second floor.

[33] The alarm was last tested December 24^th^, 2014 prior to the murder. Mr. Holgate testified that according to the log the alarm went off on December 29^th^ at 2:23:52 in the living room sensor zone, in real time. One second later, the kitchen alarm went off. At 2:24:52, the alarm was cancelled with the proper code being put in. On this occasion, the operator called the home at 2:26:34 and spoke with someone who gave the wrong passcode. The operator did nothing further since the alarm had previously been properly shut off.

[34] The actual telephone recording was played. The phone rang twice before being answered by a male voice who indicated everything was okay. The male voice was asked for the pass code and replied “big mac.” The operator indicated that was not correct, and the call was terminated. The correct passcode was “peaches.” Mr. Holgate confirmed that the alarm was cancelled prior to the operator making the call. He also indicated that the siren did go off for 32 seconds but again he had no information as to whether it was hooked up to the speakers.

[35] In cross examination Mr. Holgate confirmed that the alarm was cancelled 32 seconds after the first sound sensor triggered the alarm. He also confirmed, contrary to Mr. Radu, that the alarm could be cancelled by the fob anywhere in the house remotely, but only if the system was so programmed. He had no idea if the system was so programmed. He agreed that Mr. Radu was more knowledgeable on that issue than he.

[36] Jennifer Plath of the Center of Forensic Sciences was a firearms expert who was so qualified, on consent. She received the Mauser handgun with the serial numbers ground off. She stated the magazine would not lock into place and it had to be held firmly in place, two hands had to be used for the gun to fire. She was able to test fire the gun once she held the magazine fully inserted with two hands.

[37] She examined two fired cartridge cases sent to her by the Kitchener Police. One having been found on the floor and one having been found in the pillow, in the deceased’s room. She also received two bullets. One from the wall and one from the pillow. She concluded both casings were fired by the Mauser, as was the bullet found in the pillow. The bullet found in the wall was too damaged to determine if it was fired by the Mauser.

[38] Two casings found in the ammunition pale in the accused’s garage, were not found to have been fired from the Mauser although they could have been.

[39] Dr. Robert Gerrard, a forensic chemist at the Center of Forensic Sciences, was qualified as an expert, on consent, to give an opinion regarding gunshot residue. It was Dr. Gerrard’s opinion that if one is not shooting a gun, then it is very unlikely that any gunshot residue would be found on a person’s hands or clothing. He confirmed that all four samples taken from the accused’s hands had gunshot residue.

[40] Dr. Gerrard examined grindings found by police in the accused’s garage under the grinder. He compared those grindings to the gun and stated the grindings were virtually indistinguishable from the gun, however, he also added the caveat that the material was a very common alloy and found in many things such as nails, bolts, nuts, screws, etc.

[41] Dr. Gerrard had three samples of clothing being a large plaid pajama bottom which he found had gunshot residue. He also had a small plaid pyjama bottom with no gunshot residue and a long sleeve grey shirt with no gunshot residue.

[42] In cross examination he conceded that the gunshot residue particles here could have occurred by way of transfer meaning that the accused’s hands could have touched something with gunshot residue on it which ended up on his hands. He agreed that gunshot residue on one’s hand, could be transferred to clothes if the clothes were wiped with those hands. The gunshot residue would remain on the clothes until they were likely laundered. He agreed gunshot residue could be found on guns and empty casings and if a person were touching those things, such as a gunsmith, there may be a transfer of gunshot residue. He also agreed that washing of hands would remove most if not all such residue.

[43] Ms. Tanis Gornall gave evidence as an expert, on consent, with regards to DNA. She did not do the analysis, but, on consent, she was giving the evidence from the person who did, who was no longer available to testify.

[44] Samples were available both from Mr. Sauve and Mrs. Sauve. The witness agreed that DNA can be transferred by the handler. She is unable to tell when DNA is deposited, how it is deposited, or the order of deposit.

[45] Ms. Gornall testified that the Mauser handgun had a mixture of 2 DNA samples from a swab of the handle, the magazine, and the release and slide. One of the samples matched the accused’s profile. The other sample was not suitable for testing.

[46] Two cartridges being from the gun and magazine were also tested and only the accused’s DNA was profiled on both. The two empty cartridges found on the floor of the deceased’s bedroom, were not suitable for testing.

[47] The pyjamas with the small plaid, had blood on them and had a mixture of at least two people’s DNA. The major DNA was the accused and the minor DNA was his wife. There was no blood found on the large plaid pyjamas or on the gray long sleeve undershirt.

[48] The DNA on the gun’s Random Match Probability (RMP) was 1 in 59,000 that the accused could not be excluded. The DNA samples in the cartridges that were in the gun RMP was 1 in 1.4 quadrillion that the accused could not be eliminated.

[49] The deceased had worked for a local doctor for many years. One of her best friends Hazal Keys worked with her. Ms. Keyes indicated that as far as she knew, Mr. and Mrs. Sauve had a solid marriage. In 2011 she became aware that the accused had hit his head on a beam and was not recovering well. By December 20^th^, 2014, he was in a wheelchair using supplemental oxygen and according to information received from Mrs. Sauve, quite depressed. Ms. Sauve indicated to Ms. Keys that she was worried about her husband. She would often call him at home from the office. She went home daily for lunch and she told Ms. Keys that she was afraid that her husband did not want to live the way he was living any longer. She told Ms. Keys on one occasion, shortly before this murder, that she was worried that he might try to kill himself. Ms. Keyes testified that she was aware that there was some financial strain on the Sauve family as the accused had to stop working in 2011 and the family was living on his small pension and income earned by Mrs. Sauve.

[50] Sherri Green, the daughter of Mr. and Mrs. Sauve, is a registered nurse and has been for the past 15 years. Her parents had been happily married for the past 40 years. She confirmed her father’s accident of hitting his head on a beam in 2011 and being hospitalized. He steadily declined to the point where he needed supplemental oxygen, a wheelchair, had stopped driving and was having peripheral vision problems. He sold his company to Mr. Radu. She was aware that her father, as was her grandfather, was a gun collector. She knew there were lockers and guns and parts in the garage. She was also well aware that her father took great pride in his home and the security system. He was very cautious about the security of his guns so that they did not end up in the wrong hands.

[51] In mid-2014 there was a further deterioration of her father’s health and he was hospitalized again for several months. The initial diagnosis on this attendance at the hospital from a neurologist was a muscle atrophy type of disease for which he only would have a five year life expectancy. Her father was quite upset by this diagnosis. While in hospital in London, he attempted suicide by trying to hook up oxygen to his IV. He finally got a further diagnosis from another doctor who indicated he did not have a muscle atrophy type of disease and was eventually released home at the end of November 2014.

[52] Ms. Green agreed there were some financial issues with her parents because they were now living on her mother’s income along with a WSIB and CPP disability pension for her father. Over Christmas 2014 there were some visits by family. She found her father to be tired and somewhat withdrawn, but reasonably upbeat when the grandchildren were present. She spoke with her parents on December 27^th^ and everything seemed reasonably stable. That was her last conversation with them.

[53] Clifford Sauve, the son or Mr. and Mrs. Sauve, testified that his father had an extensive work shop with guns, ammunition, parts, tools and lockers. His father had always been involved with guns. He confirmed his father’s injury in 2011 and his deterioration thereafter. He was however able to work in the garage on his guns.

[54] He last spoke to his parents on December 27^th^. His father seemed reasonably good during Christmas day while family and children were about.

[55] This witness testified that his father was of the view that an alarm system was a must, given the guns he had. He was very careful about the security of his guns. In September 2014, while in the hospital, he spoke to his son about getting the guns out of his house and he appeared quite depressed. That never happened. Clifford Sauve was not aware of any suicide tendency by his father.

[56] Clifford Sauve was aware that his father had a grinder in the workshop and on occasion had noticed that grindings would be under the grinder. He was also aware his father made his own ammunition and would collect casings from gun ranges which he kept in buckets in the work shop for recycling.

[57] The family doctor, Dr. William Wong, gave evidence and indicated that he had been the family doctor for Mr. Sauve since 1984. He stated they were few medical issues prior to his accident in 2011. Thereafter, he had dizziness, balance issues and general deterioration of his condition. He received a great deal of treatment and saw a number of different specialists. He was hospitalized on several occasions. He last saw the doctor on December 16^th^, 2014 prior to his wife’s murder and indicated he was having some seizures. The doctor saw him on December 29^th^, 2014, after the killing, and Mr. Sauve did not mention any cuts, bruising or other injuries from any beating. The doctor did not indicate that he saw any cuts or bruising. He also indicated that a CT scan of the face and head was done on December 29^th^ and was normal.

[58] Dr. Alexander Melinyshyn, an expert in neurology, gave evidence about his interaction with the accused in the hospital in London starting in September 2014. He had a low oxygen level. He was having fainting spells, visual issues, headaches, memory and concentration issues, depression and a general feeling of hopelessness. He did however deny any suicidal thoughts. The doctor thought his symptoms were psychiatric in nature and he did not have epilepsy. He confirmed on September 15^th^ that the accused attempted to connect oxygen to his intravenous line to give himself an air embolism and thereby commit suicide. He had a psychiatric review on September 17^th^, 2014 and was deemed stable.

[59] It was confirmed that he did not have a muscle type atrophy disease and according to this witness, the accused felt reassured by this diagnosis.

[60] Mr. Sauve gave four voluntary statements to the police after speaking to a lawyer and being extensively cautioned.

[61] The first statement was on December 29^th^, 2014 at 11:25 a.m. He indicated in that statement that two females came up the stairs in his home. He heard the alarm go off. He heard the siren going. He heard them yelling at his wife for the alarm code. Then one of the women was in his room beating him. He then heard a bang which he knew was a gunshot. The other female came into his room and gave the first female the gun and said “shoot him or don’t shoot him.” He is not sure which. He then heard one of the females say it won’t shoot and she then started hitting him on the head with the gun. The females then went downstairs but he did not hear the door beep go off so he thought they were still in the house and he called 911.

[62] In this statement Mr. Sauve indicates “I was getting the tar beat out of me.” The females had masks on of some sort, “like Halloween masks”. He further indicated he got his right hand on the gun and was trying to take it away from the one female. He indicated the gun was not his. He could think of no reason why the two females would be in his house. He denied killing his wife and stated he had no reason to kill her. He further indicated he got the gunshot residue on his hand while fighting the female for the gun. He indicated further that he called out to his wife 4 or 5 times while on the 911 call so he felt that should be on the tape. It was not. He denied this was a suicide pact. He stated his wife gave the one female the code. He then said one of the females had yellow dish washing gloves on while the other had no gloves. He mentioned several times during the statement that he did not shoot his wife. He confirmed that he had no enemies, no disputes with anyone and no financial issues.

[63] The accused indicated, later in this statement, that he never in fact heard his wife talk. He heard the females ask for the code and then go downstairs and come back and shoot his wife but he never actually heard her give them the code. He indicated that the female that first came into his room had a princess mask on and something yellow on her hands. He said it was a full rubber mask and he was trying to get it off her face. One of the girls was quite small and skinny, about 5 feet tall while the other one was bigger and 5’6 – 5’7 tall. He thought the bigger female was the shooter.

[64] The next statement was taken on December 29^th^, 2014 at 4:22 p.m.

[65] He again emphasises several times during this statement that he did not shoot his wife. When he looked at the gun on the floor of his bedroom he knew it was a semi-automatic. He heard only one shot. He again says he could hear one of the females and his wife arguing but he is not sure what they said. He said there was no possibility his DNA could be on any of the casings of the bullets for the gun. He confirmed there was a 45 second delay time on his alarm from when the door is open to when it is activated. He agreed that the way his wife was lying on the bed after being shot did not look like she had been involved in any type of struggle. He admits that she looked at peace when she was shot. He said he was pistol whipped. He was hit at least twice with the side of the gun. The smaller female was on the bed with him and they ended up on the floor. He ended up lying on top of the girl on the floor and the other girl came in and kicked him in the groin. He agreed that the pass code for the alarm was peaches.

[66] The next statement was given on January 5^th^, 2015 at 3:45 p.m. he now says that the females did not go all the way downstairs and that he thought he heard them call out the code so that now he thinks that there were perhaps 3 people in the house. He believes he heard the door chime when it opened which he thinks woke him. He next heard the females from his wife’s room saying they needed the code. Then he saw two bodies go part way down the stairs and the alarm was cancelled. The two then separated. One came to his room and one went to his wife’s room. He then remembers someone “beating the shit out of me.” He then heard a bang, but is not sure if it was one or two. He heard the larger female say “we got to get out of here the cops are coming.” The larger female definitely had no mask on. He agreed he was incorrect when he earlier said both girls had a mask on. He now says the delay on the alarm is 15 – 18 seconds and then the siren goes off. He believed the siren went off for 10 – 15 seconds.

[67] He further indicates in this statement that he is no longer sure that the smaller of the two people, is female. When fighting the person with the gun, he first grabbed it with his left hand, then his other hand. He then heard her say, “I can’t shoot him, it won’t fire.” The larger person was a brunette, early twenties with shoulder length hair. He heard the phone ring and someone answered it. This occurred while both people were in his room. The smaller person, who was on top of him on the floor, picked up the phone and then left the room to answer it. He agreed from the pictures that his bed did not look like a struggle had taken place in it. He agreed that there were two telephones on his night table in his bedroom in the picture. After seeing that, he said that the person who went out, took the phone out of the room to answer it, came back and then placed the phone back on the table. He said he called 911 within a minute of this incident occurring which is incorrect. In this statement he definitely says he heard his wife talking. He agrees she was not sleeping. He agrees a gunshot would have set off the alarm. He had no explanation for waiting 23 minutes before calling 911.

[68] The final statement was taken on February 6^th^, 2015 at 3:45 p.m. and in it he states that he now thinks there were three people in the house because two of them never went all the way down the stairs and yet someone shut off the alarm. In an earlier statement, he indicated that the person who spoke with the alarm company the night of the murder gave the wrong passcode. He said he got that information from the alarm company. In fact he did not call the alarm company. He admits he lied about that. He then says in the February 6^th^ statement that he had his son call the alarm company and get that information. That also was a lie as his son never spoke to the alarm company. When confronted with that information he admits that it might have been him who answered the phone when the alarm company called and he gave the wrong passcode. He says he doesn’t know. He agrees that the alarm was on and the door alarm was not broken prior to his wife being shot, contrary to his earlier statement that the door chime woke him. He agrees that meant someone did not come in the doors. He further agreed that made no sense.

[69] In this statement the accused admits he got a Mauser pistol about a year or two prior to this murder. He cannot remember how he got it. He did remember the clip was not working so he fixed it and then he got rid of it but he doesn’t remember how. Later in the statement he says he gave it back to the person who brought it in but he doesn’t remember who that was.

[70] The defence admits that the alarm company had no conversation subsequent to this murder with either the accused or his son which is contrary to what the accused said in his statement.

POSITION OF THE DEFENCE:

[71] The Defence urges the court to find that the exculpatory statements of the accused introduced by the Crown as part of its case should not be entirely rejected as untrue and the consistent and repeated denials of guilt by the accused support a reasonable doubt about his guilt.

[72] The Defence also argues that much of the evidence relied on by the Crown is circumstantial and to convict on that evidence the court must conclude that the evidence it accepts is consistent with no other rational conclusion than the guilt of the accused.

R. v. Villaroman 2016 SCC 33 at para. 25-30, 32-34:

THE POSITION OF THE CROWN:

[73] The Crown argues that it has proven the guilt of Mr. Sauve beyond any reasonable doubt. The story given by the accused is not capable of belief when considered in conjunction with all the other evidence in this case and his lack of credibility with so many inconsistencies in his statements and should be rejected as untrue.

[74] The circumstantial evidence in this case, says the Crown, can lead to only one conclusion when all the evidence is considered and that is the guilt of the accused. There are no other rational conclusions and those put forth by the Defence are nothing but speculations and theories with absolutely no evidence to support any other rational conclusion except the guilt of the accused.

ANALYSIS

[75] Mr. Sauve is charged with second degree murder. The Crown must therefore prove beyond a reasonable doubt the following:

1. Mr. Sauve caused his wife’s death.
2. Mr. Sauve caused his wife’s death unlawfully.
3. Mr. Sauve had the state of mind required for murder.

[76] The real issue in this case is whether Mr. Sauve caused his wife’s death or, was her death caused, as he said in his statements, by two or three unknown individuals in his house. There can be no doubt that Mrs. Sauve’s death was unlawful as it was conceded by the Defence it was caused by two gunshot wounds to her head. There is no evidence, nor any suggestion by the accused, that his wife shot herself. There can be no doubt that whoever shot her, either meant to kill her or meant to cause her bodily harm and that person knew the gunshots would likely kill her or was reckless whether she died or not. The person who shot Mrs. Sauve twice in the head, clearly intended to kill her or meant to cause her bodily harm that likely would kill her. There were no other wounds to the body. As has been stated many times by our courts, it is a matter of common sense that a person usually knows what the predictable consequences of his or her conduct will be, and usually means to bring them about. On the facts of this case I have no reasonable doubt but that the person who shot Linda Sauve meant to kill her and did so unlawfully.

[77] The real issue for the court is whether the Crown has proven beyond a reasonable doubt that the person who shot Mrs. Sauve was her husband, the accused.

[78] I have concluded that the evidence is overwhelming that the shooter was Mr. Sauve. He was very familiar with guns. He in fact had worked on a Mauser semi-automatic pistol which had a defective magazine sometime prior to this murder. The serial numbers were ground off the Mauser found at the murder scene and similar grindings were found in his gunsmithing shop in his garage. He had gunshot residue on both of his hands. It took two hands to fire the gun. His DNA was found on the gun and on the bullet in the gun and the bullet in the magazine. There was no physical indication of a struggle in either bedroom nor was there anything to indicate any type of a robbery in the house. Everything was neat and tidy within the bedrooms and the home itself. There was no sign of forced entry. There was no indication that the doors were opened by way of showing in the records of the alarm. A gunshot would have sounded the alarm. The alarm was quickly turned off by someone who obviously knew the code. The only person who knew the code after Mrs. Sauve was shot was her husband the accused. There was DNA from Mr. Sauve and Mrs. Sauve on the pajama bottoms. There was no robbery nor any evidence of any reason why the Sauve’s would be the subject of a home invasion. The doors were closed after the alleged invasion-and the door to Mrs. Sauve’s room was closed after she was shot-both unusual by home invaders. The evidence would indicate the Sauves had no enemies. There is evidence Mr. Sauve was depressed as a result of his deteriorating health and that he had attempted suicide once in hospital. There was evidence that Mrs. Sauve was worried about her husband and he indicated he did not want to live as he was in poor health.

[79] Mr. Sauve’s four statements are riddled with inconsistencies and admitted lies and are simply not believable. His explanation of two or three people entering the house, pistol whipping him, fighting with him and shooting his wife for no reason is simply not credible and does not correspond with any of the physical evidence.

[80] The Crown has put forth the theory, or motive, that Mr. Sauve had decided to kill himself but did not want to go alone so he planned to kill his wife first, however, after killing her he either changed his mind or he could not get the gun to work because of the defective magazine. Whether this was Mr. Sauve’s thought process or not is irrelevant. The Crown is under no duty to prove motive, however, motive, if proven, is a reason why someone does something - it is simply part of the evidence for me to consider. I conclude that there is also no proven absence of motive on behalf of Mr. Sauve which may go to support his denial of guilt.

[81] I also acknowledge the evidence of the police that one of their members was timed in getting from the accused bedroom to the alarm by using the accused’s wheelchair and it took him 52 seconds which was longer than the evidence of the time the alarm was activated until shut off. The officer who performed the actual demonstration did not give evidence, nor was there any video recording of the demonstration to allow the court to see the details of this demonstration. There was no evidence as to how familiar the officer was with wheelchairs, the stair lift or the alarm system. I also note the discrepancy between the evidence of Mr. Holgate and Mr. Radu as to whether the alarm could be turned off remotely by the fob. I give little weight to this evidence and it certainly does not raise any reasonable doubt in my mind as to the guilt of Mr. Sauve.

[82] I have considered the submissions of the Defence that cross contamination of the DNA from the gun to the bullets in the gun and magazine was caused by Detective Huhtanen in handling those objects and this should raise reasonable doubt regarding that DNA evidence. I reject that argument as speculation. The officer was very experienced and was well aware of the issue of cross contamination. He clearly remembers changing gloves whenever he touched a new piece of evidence. He noted that in his notebook although not every time he did so. His evidence was clear and straight forward. He had a good memory of events. He was skillfully cross-examined and remained consistent throughout his evidence, except for a couple of minor and inconsequential discrepancies with his evidence at the preliminary inquiry. I accept the evidence of Detective Huhtanen as accurate and do not accept that there is any reason not to accept the DNA evidence as accurate.

[83] I have reviewed the case of R v. WD., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. I am persuaded beyond any doubt, that the accused is guilty based upon the evidence that the Crown has led and which I accept. There is no evidence from the accused’s statements or cross-examinations that raises any doubt in my mind as to his guilt. There is also no evidence which I have not accepted which raises any doubt as to the guilt of the accused. I reject the accused’s consistent denials of guilt in his statements as untrue. I therefore find Mr. Sauve guilty of the second degree murder of his wife.

Arrell J.

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

Cynthia Jennison

• and –

Clark Eric Sauve

James Marentette

REASONS FOR JUDGMENT

HAS

Released: May 30, 2017