COURT FILE NO.: 28/18 (St. Thomas)
DATE: 2019-09-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROGER CRAIG SHORT
Defendant
David Rows and Nicole Godfrey, for the Crown
David G. Bayliss and David Levy, for the Defendant
HEARD: May 14, 15, 16, 17, 21, 22, 23, 24, 2019; June 3, 4, 5, 10, 11, 12, 13, 18, 21, 2019.
REASONS FOR JUDGMENT
ThOMAS, R.S.J.
BACKGROUND AND HISTORY OF THE PROCEEDINGS
[1] In the early morning hours of October 19, 2008, Craig Short called 911 from his home in Corunna. He reported that he had just returned from socializing with friends after a hockey game in Sarnia. He told police that he found his wife, Barbara Short, face down on a woodpile next to a gas tank at the rear of their property. She was dead upon his arrival.
[2] Craig Short was charged with first degree murder on October 24, 2008 and was granted bail on December 19, 2008. His first trial before Justice John Desotti resulted in a hung jury on May 26, 2012. On February 27, 2013, after a 19 day trial before Justice Joseph Donohue with a jury, he was convicted of the first degree murder of his wife.
[3] On January 2, 2018, the Ontario Court of Appeal granted his appeal and ordered a new trial. Craig Short was granted bail pending appeal on February 23, 2018, having spent five years in custody.
[4] Justice Doherty, in writing for the Court of Appeal, set aside the conviction and granted a new trial having found a miscarriage of justice when the trial court refused to allow Phillip Millar, counsel for Craig Short, to withdraw from the case. The Appeal Justice, however, went on to comment upon other issues arising out of the second trial including the potential of defence evidence which offered the identity of an alternate suspect.
[5] It has always been the theory of the Crown that Craig Short killed his wife earlier in the evening of October 18, 2008 and then staged the scene to make it appear as if Barbara Short interrupted a gas theft and was killed by the thief.
[6] Craig Short agreed to take a polygraph. He voluntarily provided his DNA. He surrendered his clothing and consented to the search of his home and vehicles. He provided multiple statements to police.
[7] Through all the audio recordings, video interviews and trial proceedings over eleven years Craig Short has steadfastly maintained his innocence.
[8] This is the third trial of Craig Short. The venue was administratively changed from Sarnia to St. Thomas.
[9] I have released six decisions related to pre-trial applications and two decisions related to applications in trial. At the commencement of this trial, counsel consented pursuant to s.743(1.1) to have the matter tried by judge alone and we have proceeded in that fashion.
[10] The case for the Crown is entirely circumstantial.
[11] At the end of the Crown’s case and upon their motion I amended the charge to second degree murder. The Crown was realistic in its view that their case could not support a finding of guilt inclusive of planning and deliberation.
STRUCTURE OF THE DECISION
[12] Let me first comment on the structure I have adopted with regard to these reasons for judgment. As mentioned, the case for the Crown is entirely circumstantial. As a result the Crown asks me to draw inferences from the evidence before me leading to a finding of guilt. At the conclusion of that exercise to make that finding of guilt I must be satisfied beyond a reasonable doubt that Craig Short’s guilt is the only reasonable or rational inference that can be drawn from the evidence (R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, para. 33) (Griffin).
[13] In my reasons below I will detail the evidence and related inferences seized upon by the Crown to drive its argument for conviction. With regard to each evidentiary component I will provide the countering argument for the defendant and my view on the available inferences.
[14] The evidence in this case is long on suspicion, perhaps even understandable suspicion, but is short on actual evidence of guilt. That suspicion unfortunately informed the investigation from the beginning. It channeled the actions of investigators in such a way as to limit their exploration of alternatives. Without their scrutinizing those alternatives it is now impossible to reject them as unhelpful.
[15] To offer but one example to be detailed later there is the absolute lack of investigation regarding the interior of the Short residence and whether that investigation might have yielded evidence of the presence of a third party after Craig Short left to attend the hockey game.
[16] Craig Short has given evidence in this trial. Counsel have urged upon me their respective positions on the W.D. analysis to be conducted as part of my assessment of the evidence (R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742). It is trite law to say that rigid use of a W.D. formula is unnecessary. As will become obvious as I proceed, there are portions of the evidence of Craig Short taken from his testimony, as well as his statements to police which he has adopted here, that I reject.
[17] However, there are portions of his evidence that form a compelling part of the defence and that make it impossible for one ultimately to find that his guilt is the only reasonable inference to be drawn from all of the evidence. In that way the Crown has as well failed to meet its onus and a structured W.D. analysis becomes unnecessary.
[18] The following are the categories of evidence adopted by the Crown.
MOTIVE
[19] Evidence of motive is used in the prospectant sense as commonly lead circumstantial evidence. The proof of a motive for Craig Short to kill his wife is important to the Crown in proving its circumstantial case.
[20] It is clear from the evidence that the Short marriage was in trouble. In 2008 Barbara Short was making it known to her husband and to others that she was unhappy and was considering a divorce. She had been to George McFadyen, a family law lawyer. He had taken steps to prepare and file a divorce application. She was having an affair with Ken Robertson and the evidence makes it clear she was hoping for a long-term relationship with him.
[21] The Ontario Court of Appeal in R. v. Candir considered motive as linked to the accused from the deceased’s state of mind.
- Motive or animus has to do with an accused’s state of mind, not that of the deceased. Yet evidence of the deceased’s state of mind may constitute a link in a chain of reasoning that could lead a trier of fact to conclude that an accused bore the deceased some animus or had a motive to kill the deceased: R v. Foreman (2002), 2002 CanLII 6305 (ON CA), 62 O.R. (3d) 204 (C.A.), at para. 30; R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.), at p. 339.
(R. v. Candir, 2009 ONCA 915 para. 53)
[22] “In turn, that evidence of motive is relevant and admissible particularly where, on the issues of identity and intention, the evidence is purely circumstantial…” (Griffin para. 60). In this matter the issue is identity. There is no doubt that Barbara Short was murdered and from the injuries inflicted no doubt as to murderous intent.
STATE OF MIND OF BARBARA SHORT
[23] Craig and Barbara Short were married for twenty-eight years. Their relationship described by their daughter Bridgette as “different” included extramarital affairs in the early years as well as a time around 2003-2004 when they engaged in a “swingers” lifestyle.
[24] Barbara Short met Ken Robertson in 2006 and by 2008 they were sexually intimate. By October 2008 they were in contact with each other every day often messaging multiple times a day. While Barbara Short did not tell others about Robertson she professed her love and lust for him both in her messages and in her poetry. Unfortunately for Barbara Short, Robertson remained living with his wife while carrying on relationships with Short and three other women. He was a master of deception and both Crown and defence agreed that it was impossible to rely upon his evidence in this trial unless corroborated by another reliable source.
[25] The Crown suggests that is open to me to find that Craig Short read his wife’s poetry, and concerned for their marriage, and enraged by her infidelity, he killed her. There are problems with this theory. I have no evidence that Craig Short knew of Robertson prior to the death of his wife. In fact Bridgette Short testified that when they were going through her mother’s personal items after her death her father found some cards and a picture of Robertson in her mother’s purse. When Bridgette told him about Robertson and her suspicions he became angry with her for not letting him know what was happening.
[26] It was the evidence of Craig Short that he did not learn of the intimate messages until three weeks after the murder. He testified that he thought the “Ken” mentioned in Barbara Short’s poetry was her brother Ken. He maintained that he did not read the details of the poetry.
[27] In 2005 the Shorts moved to the residence at 936 St. Clair Parkway in Mooretown. This was a home built by Craig Short and valued at $700,000. Barbara Short operated a daycare in the basement. The couple were equal and sole shareholders of C. Short Construction. Craig Short handled the construction and Barbara did everything else.
[28] In 2007 and 2008 Craig Short purchased five lots on Wheatley Drive in Sarnia. This purchase was against the advice of his wife. The lots and a “spec” home he built did not sell and it lead to arguments between them and the concerns of Barbara Short that they were going to lose everything. The debt was secured against their home at 936 St. Clair Parkway. However, a review of the financial summary provided in this trial indicates that while the Shorts were cash poor their net worth was actually increasing.
[29] It was the evidence of Craig Short that after Barbara indicated her strong concern about finances they met with their real estate lawyer, Glenn Dawson, changed real estate agencies and sold several of the lots taking the financial pressure off.
[30] Craig Short liked to socialize. He had a regular number of Sarnia bars he frequented. He attended the Sarnia Sting hockey games. He had a circle of friends and acquaintances he spoke to when he was out.
[31] It is clear from all the evidence that he loved to talk and at times could be crude and abrasive. As described by one witness “you either loved Craig or you hated him”. It seems that three to five times a week Craig Short attended an establishment known as Cravin’s. From time to time Barbara attended with him. Craig Short would go to the bars alone on the evenings Barbara indicated she wanted to stay home.
[32] Helen Tsaprailis (now Helen Politis) was the owner and manager of Cravin’s. She was having marital problems. She befriended both Craig and Barbara Short. In June, 2008 Craig Short had her first name, written in Greek, tattooed on his arm as part of an existing tattoo. In his evidence he maintained it was to support a friend in her difficult time. Barbara became aware of the tattoo and was angry. Within two weeks Craig had covered it up.
[33] There is no evidence that there was any romantic relationship between Short and Tsaprailis. The evidence of both makes that clear. But I strongly suspect Craig Short was for a time infatuated with Tsaprailis. He now calls the tattoo a “stupid” idea.
[34] Barbara Short first went to George McFadyen, a family law lawyer, on April 23, 2008. She signed an application for divorce on July 30, 2008. On July 31, 2008 McFadyen drafted a letter to Craig Short which Bridgette Short picked up from his office. Barbara Short gave the letter to Craig on the same date. The letter focused on the Tsaprailis tattoo and suggested that Craig Short should obtain a lawyer so that a separation agreement could be negotiated dealing with support and a division of their assets.
[35] Barbara Short told her daughter Bridgette that Craig was shocked when she gave him the letter and that he cried. He arranged for them to meet with Dawson to clear up the financial pressures on the business. Craig Short testified that Barbara was concerned about finances and expressed that she wanted “to cut her losses and get out with something” while she could.
[36] Craig Short testified that he thought after their discussion about the letter things got better. He tried to be a better husband. He told the police that in his interviews. However he did not tell the police about the letter itself or the tattoo of Helen’s name.
[37] The Crown argues that Barbara Short was intent on proceeding with her divorce and the related division of assets. She attended at McFadyen’s office on September 29, 2008 and instructed him to file the Divorce application with the Court but not serve it. It is clear from the lawyer’s statement of account found at the Short residence that in late August the application had been prepared but on her instructions the file had been held in abeyance.
[38] Craig Short testified that in late September or early October he saw McFadyen’s office number on their home phone and asked his wife about it. He says that Barbara told him she had advised McFadyen that they were trying to work things out and that she would come in and pay the balance of the account.
[39] This of course is contrary to what was actually happening. It is clear that Craig Short had seen the account. After the death of Barbara Short he provided it to Detective D.L.. The Crown points out that a simple reading of the account would show that McFadyen had provided significantly more work for Barbara Short than just write the letter and further that he was holding a credit balance in his trust account and not waiting to be paid. Craig Short said that he did not read the detailed account of services rendered. The bottom line he thought was the amount still owing.
[40] It is difficult to believe that a business man like Craig Short would not see the difference between a credit and an amount owing and that something as vitally important as this he did not take the time to read McFadyen’s description of the divorce work done.
[41] Linda Buckingham who spoke often to her sister Barbara said that she knew the divorce was moving forward. Laura Lee Bowling took Barbara Short to a job interview at the Sarnia Library the Thursday before her death and Barbara asked that she not tell Craig.
[42] But Linda Buckingham also provided evidence that Craig knew of Barbara Short’s attempts to find employment and had agreed to drive her to work if she found a job. Bridgette Short and Michelle Gladwish confirm Craig drove her to at least one interview. The evidence of Craig Short himself is consistent with this position.
[43] I am suspicious of this evidence of an ongoing divorce proceeding providing motive. As I found in my pre-trial decision regarding the use of the hearsay statements of Barbara Short I have real concerns about the reliability of her comments regarding her intentions and therefore the clarity they bring as a window on her state of mind.
[44] Barbara Short was involved in a torrid affair with Ken Robertson and involved in ongoing divorce proceedings. She kept the Robertson secret to herself.
[45] It seems clear to me she wanted to keep a lid on her continued intention to leave Craig as long as she could. Her comments to everyone in the summer and fall of 2008 were made under “circumstances of suspicion” (R. v. Griffin 2009 SCC 28 para. 59, R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 para. 208).
[46] In R. v. Maciel 2007 ONCA 196 at para. 77 Doherty J.A. cautioned on the admissibility of evidence of stated intention.
I think the potential admissibility of evidence of a declarant’s intention to do something with a third party as a piece of circumstantial evidence to be considered with other relevant circumstantial evidence on the issue of whether that event took place, remains an open question after R. v. Starr, supra. However, even if that evidence of the declarant’s state of mind has some value as a piece of circumstantial evidence, its probative value will often be slight. If there is a serious risk that the evidence of the declarant’s intention will be misused by the jury, the trial judge may, in the exercise of his or her discretion, exclude the evidence of the declarant’s intention.
[47] It is quite possible that Craig Short really believed that with his better behaviour and the sale of the lots their relationship had turned the corner. In that regard I must consider the currency of the motive evidence. The alleged statement to Lepine, to be discussed later, and the McFadyen letter were both in the summer of 2008. What accelerated the concerns at that time to become a motive to kill in October 2008? I have the inconsistent statement of intention raised by Barbara Short above. I have no evidence that Craig Short knew of his wife’s relationship with Ken Robertson.
[48] The defence has argued that since the Crown has amended the indictment to lower the level of jeopardy to second degree murder I must discard all thoughts of planning and deliberation and focus only on the discovery of a point in time prompting rage or revenge. I do not accept that the evidence of alleged planning and deliberation, falling short of proof beyond a reasonable doubt, is of no use to me. But accepting that as so, I am unable to nudge the Crown theory on motive further ahead.
[49] Bridgette Short was aware of the content of the letter and the timing of its delivery. She said that after the letter her father tried to make things work. He did things with his wife he had not done before. They planned a cruise. It seemed her mother appreciated it. Michelle Gladwish was a friend of the Shorts. On several occasions in August and September 2008, she saw the Shorts out walking and holding hands.
[50] There are two statements allegedly made by Craig Short that the Crown offers as evidence of motive. The first comes from the evidence of Norman Lepine, the nephew of Barbara Short, and the son of her sister, Linda Buckingham.
[51] In the summer of 2008 Lepine was employed as security at the Riverport Tavern in Sarnia. Lepine testified that on an evening in June or July Craig Short came into the business and seemed upset. Lepine testified that Craig Short told him Barbara was looking for a divorce. He said Short told him he would rather kill her than have her take half of what he earned or half of his stuff. Lepine acknowledged that at best he and Craig Short had a joking relationship and so he did not take him seriously. It seems from all the evidence that Lepine told no one about this until after Barbara Short’s death when he told his mother and the police.
[52] Craig Short denies this conversation suggesting that he would never say such a thing and that he never had any meaningful conversations with Lepine. It is also suggested that Craig Short knew that any form of negative comment was likely to be repeated to Barbara’s sister who clearly did not care for Craig Short.
[53] The comment was made in the evening in a crowded bar with music playing. I am unable to find the evidence of the conversation reliable and even if I could unfortunately these kinds of comments in this context have undoubtedly been made by other disgruntled spouses who never went on to commit murder.
[54] The second statement comes from Chad Kaplan, a real estate agent in Sarnia with the agency that listed Short’s Wheatley Drive lots. Kaplan testified that mid-2008 he met Craig Short at a fitness club. It was his evidence that Short seemed desperate to sell the Wheatley Drive lots and told him his wife was upset and threatening to leave him and “take him to the cleaners”.
[55] It was Craig Short’s evidence that he recalled this conversation but that it was meant to put some pressure on the listing agents so that they would work harder to sell the lots. He testified that shortly after that on the recommendation of Glenn Dawson he switched agents and the sale of several properties took the pressure off and he felt resolved Barbara’s concerns.
[56] The investigation in Barbara Short’s murder turned up comments from neighbours and others that added fuel to the police focus on Craig Short. He was seen as disrespectful and emotionally abusive of Barbara Short. He raised his voice in his criticisms of her efforts doing household chores and yard work. He was seen as controlling. Barbara Short repeated to several people that Craig was disrespectful and did not love her. She said Craig would not let her acquire a driver’s licence.
[57] As previously mentioned Craig Short’s manner was often critical, abusive, and crude. These mannerisms transcended his domestic life and the evidence discloses were at times directed at acquaintances and employees. There is however no evidence that he ever touched his wife in anger.
[58] It is also clear that Barbara Short’s comments about her driver’s licence were not accurate. Her husband had purchased a car for her. Bridgette Short’s evidence was that her father encouraged her mother to drive and the evidence discloses that her lack of licence had more to do with the cost of insurance for a new driver than it did any control exhibited by her husband.
OPPORTUNITY
[59] As mentioned it is the Crown theory that Craig Short clubbed his wife to death sometime shortly before 7:00 p.m. on October 18, 2008 when he left to attend the Sarnia Sting hockey game.
[60] The expert evidence was unable to establish a time of death. The evidence of the first responders was consistent with that of the coroner Dr. Putter. Barbara Short exhibited black eyes, bruising on her forehead, a laceration in the left side of the back of her head with significant blood on her face and left ear. There was partial rigor mortis. The paramedics noted lividity, or an internal collection of blood, on her left side. She was VSA or vital signs absent.
[61] Craig Short’s evidence was similar. He told police and this Court that he found his wife face down on the woodpile when he returned at 1:20 a.m. When he rolled her over he noted the blood and her arms stayed in the same position and he knew from his experience as a volunteer firefighter that she was gone. He did not commence CPR and significantly neither did the paramedics. Short says he ran to the house and called 911. The content of the 911 call will be dealt with in the section of these reasons considering the post-offence conduct.
[62] Dr. M. J. Shkrum acted as the forensic pathologist but because of the presence of brain injuries he consulted his colleague Dr. David Ramsay a forensic neuropathologist. Shkrum found the cause of death to be craniocerebral blunt trauma with the mechanism of death being cerebral concussion. There were at least two cranial impacts. The most significant causing a left temporal fracture.
[63] There were minor contusions, lacerations and abrasions indicative of a struggle although the facial injuries could have come from falling face first into the woodpile. Dr. Shkrum agreed that a piece of 4x4 lumber found nearby with Barbara Short’s blood on one end could have been used to strike her.
[64] Dr. Ramsay testified that the passage of force through the brain stem and its concussive effect disrupted the heart and respiratory functions causing death. Death would have ensued 30 – 60 minutes after the left temporal impact.
[65] It is, of course, not necessary to this prosecution that I make a finding of fact on what constituted the murder weapon. But the theory of the Crown is that Craig Short seized the thirty inch 4 x 4 piece of wood and struck at least one blow to the back of Barbara Short’s head. The blow fractured her skull and consistent with the evidence of the forensic pathologist that blow, from whatever source, caused her death.
[66] That 4 x 4 was found under a small pile of wood next to the body of Barbara Short. It had been moved from an area closer to her body by Craig Short and then by the paramedics.
[67] The 4 x 4 yielded Barbara Short’s DNA from blood on one end and partial mixed DNA from the other. Craig Short and Ken Robertson were excluded as donors.
[68] It was the evidence of the blood spatter expert, Craig Stewart, that the surfaces of this wood contained a transfer stain, where a bloody object came in contact with the wood, and spatter stains where droplets of blood came into contact with the wood. It was his opinion that if in fact this 4 x 4 was used to strike Barbara Short these were the kind of stains he would expect to find. He also agreed though that it was possible the transfer stain came from a bloody hand wearing a latex glove when the wood was moved by paramedics. He did not find a transfer stain along the edge of the wood which might be consistent with this 4 x 4 causing the lacerations on the back of Barbara Short’s head. However, he also said there might be no transfer of blood resulting from the initial strike until bleeding commenced.
[69] Dr. Shkrum said that it was possible this piece of wood caused the three lacerations and the related skull fractures on the back of Barbara Short’s head but that it was unusual that one object could cause all three lacerations unless it had a broad surface.
[70] Considering the evidence and the nature of the wounds themselves I find that it is impossible to move the analysis any further along than to say it is a possibility this 4 x 4 piece of wood was used to strike Barbara Short. It struck or was struck by a bloody object.
[71] The Crown theory creates a narrow window of opportunity for Craig Short’s killing of his wife.
[72] The evidence of Gary Crawford, Short’s next door neighbour, and Steven McNeil, his friend, place Barbara and Craig Short in their driveway, dressed in casual wear and acting in a relaxed manner at approximately 6:25 p.m. on October 18th. That is when McNeil left Crawford’s home. About 15 – 20 minutes later the Crawfords drove away. By 7:30 – 8:00 p.m. Craig Short was at the Corunna Restaurant where he was collecting money from Dino Tsaprailis for a small construction job. He told Tsaprailis he was going to the hockey game and then later for a few drinks.
[73] Despite the injuries found on the body of Barbara Short consistent with a struggle there were no marks found anywhere on Craig Short. Short surrendered to Detective D.L. all his clothing worn throughout the day and to the hockey game. No blood was found on the clothing. No forensic evidence ties Craig Short to the murder scene.
[74] When considering circumstantial evidence of opportunity it is necessary to consider evidence potentially linking others, known and unknown, to the crime. The defence has offered two possibilities. First, the theory that Barbara Sort was killed when she came upon a gas theft in progress. Secondly, the third party or alternate suspect, Ken Robertson. I will consider them now individually.
THE GAS THEFT
[75] In October, 2008 there was a bright yellow commercial gas tank positioned a short distance from the shop at the rear of the Short residence. It was meant to service Craig Short’s business vehicles. Its presence would be obvious to anyone on the property or on the land adjoining the Short rear yard.
[76] To the rear of the property were railway tracks with some intermittent undergrowth. Just east of the tracks was a laneway frequently used by persons for recreation and used by those with dirt bikes and ATV vehicles. Beyond that laneway was farmland. The evidence establishes that access could be gained to the Short rear yard from the properties on the north and south as well as the tracks on the east.
[77] When Barbara Short’s body was found by Craig Short, and then by first responders, she was lying on wood immediately adjacent to the gas tank. A cap positioned on top of the tank was removed and on the ground close by. Most of those immediately attending the scene detected a strong odour of gasoline. A wrench of a certain size would have been necessary to remove the cap. No wrench was found nearby. No wrench, adequate to open the tank, was found anywhere on the Short property.
[78] It is clear from the evidence that both Craig and Barbara Short were concerned about the potential of theft of gas from this tank. Bridgette Short heard their conversation about this concern and the potential of installing security cameras in the rear yard. On October 17, 2008, Craig Short spoke to Remo Discanno, who was in the business of installing security systems. Discanno had done work for the Shorts before. He recalls a conversation about the loss of gas and Discanno agreed to attend the residence and assess the positioning of cameras.
[79] Natalie Clements, a client of Barbara Short’s daycare business, recalls a conversation with Barbara Short a week or two before her death where Short advised that she and Craig had heard noises in the back yard and were concerned about gas theft.
[80] It was the evidence of Craig Short that he had been concerned about the loss of gas from this tank for some time. This became an acute concern when the couple returned from a Labour Day trip to Ohio and he found the tank nearly empty.
[81] Short first mentioned the smell of gasoline to the 911 operator. Upon the arrival of Sergeant P. to the murder scene, Short mentioned the gas cap being off the tank and asked “do you think someone was stealing gas”?
[82] The defence explored the evidence of other suspicious activity along St. Clair Parkway. It seems the railway tracks across the rear of the properties on the east side of St. Clair Parkway provided easy access to homes like the Shorts.
[83] In 1999 the Crawfords, next door to the Shorts, reported a motorcycle stolen from their garage during daylight hours. In approximately 2015 the Crawfords lost mountain bikes from their shed. The Bowlings who also lived next door reported an intruder trying to break into their garage. In addition, in 2006 a male called their residence and told their daughter he could see her from their backyard.
[84] On the day after the Short homicide Christopher Schenk who lived at 640 St. Clair Parkway called police at 6:15 a.m. to report a male looking through their bedroom window at this wife.
[85] Dawn Scherrer resided at 868 St. Clair Parkway about seven houses north of the Short residence. On the night of the murder at around midnight she was alerted by her dog to two people walking down the railway tracks at the rear of her home. Two days later a car was ransacked while parked in her driveway.
[86] Cyril Irvine lived at 852 St. Clair Parkway. On the night of the murder at about 9:30 p.m. he was watching television when his dog jumped from the bed and started to growl at the door. Irvine let the dog out and the dog ran to the railway tracks and remained there barking for an unusual amount of time. Irvine had to go out and retrieve the animal. He believed he could hear people talking.
[87] Laura Lee Bowling, next door to the Shorts, heard a siren at about 9:00 p.m. on the night of the murder. She thought it might have been a car alarm but she could not tell the origin of the alarm.
[88] Chris Wesley, who in October 2008 was the boyfriend of Robyn Short, reported a theft from his motor vehicle parked in the Short driveway. The theft took place in the early morning hours of October 22, 2008. This theft from a motor vehicle was one of a number of similar occurrences on that date. Police evidence discloses that on January 9, 2009 an individual was arrested and charged with these car thefts.
[89] It is the Crown position that these incidents of other criminal activity have little connection, one to the other, and are simply regular instances of minor criminal activity offering no assistance to the possibility of a gas theft at the Short residence. Further, the Crown sees Craig Short’s prior concern about the loss of gas and his inquiry regarding security cameras as contrived and indicative of his prior planning to eliminate his wife. His comments on the 911 call and to P. are said to be consistent with promoting his own narrative.
[90] It is apparent how attractive this scenario became to investigators and it is also apparent why the Crown abandoned the element of planning and deliberation on the evidence available to it in this trial.
[91] The lack of forensic evidence; the presence of the open gas tank; the access from the rear of the property and the unrelated criminal activity nearby bring more questions than they do answers. The possibilities of Barbara Short coming upon some criminal activity in her darkened rear yard clouds the circumstantial evidence of opportunity relied upon by the Crown.
THE ALTERNATE SUSPECT
[92] Ken Robertson was Barbara Short’s boyfriend. They were both married. The relationship with Barbara Short started online in 2006 and by 2008 they were sexually intimate. They communicated in some fashion daily sometimes with multiple contacts. They met it seems as often as they could. All acts of intimacy took place at the Short residence.
[93] Robertson was aware that Barbara Short acquired a tattoo symbolic of their love for each other. It was clear to Robertson that Barbara Short was planning on leaving her husband and she hoped he would do the same. They professed their love for each other. Ken Robertson was not only having an affair with Barbara Short he was also having extramarital affairs with three other women at the same time. He told all of them he loved them. None of these women knew of the others. It was clear his life was a web of lies. Even after Barbara Short was murdered and up to his separation from his wife Diane in 2010 he continued to date multiple women who he initially met online.
[94] By occupation Ken Robertson was a salesman. I suspect he was very successful. He clearly successfully sold his story to all his female companions. Email messages back and forth between Barbara Short and Ken Robertson confirm Robertson’s interest in anal intercourse and the prospect of engaging in that form of intercourse with Barbara Short. The messages are often Barbara Short’s graphic descriptions of proposed sexual acts which might include anal penetration.
[95] The messages were sent throughout 2008 with the expectation of Barbara Short that the pair would engage in this type of intimate act at some point, and that she was anxious to accommodate Robertson in that regard but that it needed to wait until “they were more of a couple”.
[96] The importance of this discussion relates to the presence of a particular enzyme found on the rectal swab of the deceased. That evidence will be discussed in the portion of the reasons related to the evidence of Monica Sloan (CFS).
[97] In my pre-trial rulings I allowed the defence to advance an argument that Ken Robertson was a viable third party suspect. It was Robertson’s evidence that he and Barbara Short were to meet up on Friday evening October 17, 2008 but that the meeting was cancelled to his disappointment. He did see her for five to ten minutes at her home on that Friday morning. He received a message from Barbara Short requesting they meet on Saturday including perhaps Saturday evening but he did not respond.
[98] On Saturday October 18, 2008 he testified he was busy all day with golf and then yard work, his hot tub, a barbecue and a movie with his wife Diane. The best evidence seems to be that he went to bed between 11:30 p.m. and midnight. He did not hear from Barbara Short on Sunday which he found odd but on Monday morning when he awoke he heard a radio news report of a suspicious death on St. Clair Parkway. Strangely, he said immediately he thought it might be Barbara Short.
[99] He did not try to contact Barbara but rather drove past the Short residence a number of times in the next few days. He noticed the crime scene tape and the investigating officers. It was his evidence he expected the police to contact him eventually and he received legal advice to sit back and wait for them to come to him.
[100] Eventually when police arrived on October 22, 2008 Robertson provided a statement to Constable C.. His evidence is that he had not had sexual relations with Barbara Short for about two weeks before her death. He never had anal intercourse with Barbara Short. He did not attend at her residence on October 18 or 19, 2008 and as such he clearly was not involved in her murder. But he did ask C. whether his blood was found at the scene.
[101] His alibi for the time of the murder is confirmed by his then wife Diane Robertson. From her evidence it is clear that despite a thirty year marriage her husband had skillfully deceived her about his personal life. Ms. Robertson had no inkling of her husband’s affairs. It only came to her attention about a year after Barbara Short’s murder when Detective D.L. finally made her aware that there was something more between them than simply an exchange of a business card.
[102] Clearly the police saw no need until that point to disclose the affair to Diane Robertson. In taking that position they did not assist their investigation nor did they assist the Robertson relationship. A year later after further infidelities the couple separated. Two years later they were divorced.
[103] On October 24, 2008 Ken Robertson told Diane the police wanted to speak to her about the fact that his business card had been found in Barbara Short’s purse. We know that in fact the neighbours had provided police with his licence number since he had visited the residence on so many occasions.
[104] Robertson told his wife she would be asked about what they did on Saturday, October 18, 2008 and it seems clear he went through the details of the day with her even providing the name of the movie they watched together. After the police left he enquired as to what she had told them. Perhaps not surprisingly Diane Robertson’s evidence is for the most part consistent with that of her ex-husband. There is open hostility in the tone of Ms. Robertson at the mention of Ken Robertson’s name but she remains steadfast in her testimony that after he came home from golf he never left her. She was adamant that he could not therefore have been involved in the murder of Barbara Short.
[105] Diane Robertson has what she terms a general recollection of her day on October 18, 2008. Her recollection has clearly been refreshed by her statement to police and her prior testimony at two trials. In assessing her evidence I must consider that at the 2012 trial she had no memory of the date and provided evidence on the basis of past recollection recorded in her police statement.
[106] She told a defence investigator before the second trial that to the best of her recollection her husband was home all evening. She also told him that while she did not believe he was a killer she also did not think he was a cheater.
[107] The evidence of Monica Sloan a forensic biologist from CFS mainly focussed on the results of the swabs and smears taken from the vaginal and rectal area of Barbara Short. CFS testing of these samples inquired into the presence of semen. CFS tested for the presence of the constituent elements of semen being acid phosphatase (AP) and an enzyme P-30.
[108] According to Monica Sloan low levels of AP were found on the swabs taken from both the vagina and rectum of Barbara Short. Low levels of AP are not alone enough to determine the presence of semen but it is enough to lead to the second test for P-30. P-30 is detected as either present or not and is not further quantified.
[109] P-30 was found in the rectal swab but not the vaginal swab. No sperm cells were found on any of the samples. It was the opinion of Sloan that no semen was present in the vaginal smear or swab.
[110] Sloan’s overall opinion was that, consistent with the parameters placed on these types of results by CFS, the chemical constituents detected may or may not indicate semen in the rectum. The lack of a male DNA profile detected in the “sperm fraction” could mean the deposit come from a vasectomized male or it could mean that it was pre-ejaculative fluid or it could mean there was no semen at all.
[111] Sloan testified that both AP and P-30 have been found to be present in the bodies of females attributable to some other source than semen. It must be remembered however that these are the testing procedures regularly used by CFS to detect semen. Further and perhaps most importantly Sloan stressed that the fact that these are post-mortem samples remains a “wild card”. It is possible the decomposition affects the presence or strength of these chemicals either upward or downward.
[112] Semen would normally survive in the rectum for no longer than a day.
[113] The presence of P-30 unlike the presence of sperm is a presumptive not a conclusory test.
[114] CFS takes a conservative approach in offering an opinion that it is semen because of the influences of a variety of factors and the importance of that opinion in a criminal proceeding.
[115] In the end Sloan agreed that it is rare that P-30 would come from anything other than semen and was highly probable that it was semen found in Barbara Short’s rectum.
[116] Counsel reviewed two studies with her including one in the Journal of Forensic and Legal Medicine 16 (2009) 397-399 by Philippe Lunetta (PhD) Medical Doctor, Department of Forensic Medicine, University of Helsinki. The conclusion of which included the following:
- Conclusion
…Conversely, based on the results of this study, forensic biologists can extract material from post-mortem female rectal swabs and should be confident that a PSA positive result stands for the presence of semen. However, a larger number of female cases need to be examined in order to substantiate this conclusion.
[117] Sloan accepted this conclusion as being part of a reputable study and accepted the result subject to the fact that the test sample was very small.
[118] Craig Short told investigators and told this Court that on the afternoon of the murder he and his wife engaged in vaginal intercourse without a condom that was interrupted prior to ejaculation by a call from their daughter.
[119] The evidence discloses that Ken Robertson is vasectomized but Craig Short is not. Accepting that there was likely semen in the rectum of the deceased where does that lead me? The Crown suggested that the semen might be the product of pre-ejaculative fluid from Craig Short. Suggesting, perhaps it was deposited accidently during the afternoon sex act. Monica Sloan however testified that a rectal swab is normally taken from inside the rectum requiring some penetration of the rectum by the penis to leave a deposit.
[120] All the evidence including the messages of Barbara Short indicate that the Shorts never engaged in anal sex.
[121] There seems to be an absence of motive for Ken Robertson to kill Barbara Short. Their relationship seemed anything but acrimonious. I realize that the defence does not need to prove motive. It does not need to prove opportunity. The onus is on the Crown to disprove the alternate suspect defence beyond a reasonable doubt. In R. v. Khan 2011 BCCA, the British Columbia Court of Appeal considered the appropriate jury instruction when an alternate suspect defence is forwarded. At para. 91 the Court said the following:
In my view, the instruction given was erroneous. The question for the jury was whether, on the evidence as a whole, the possible involvement of Ms. Jubbal left it with a reasonable doubt as to the guilt of Mr. Khan and Mr Saghir. While the presence of, for example, opportunity to commit the crime may strengthen a third-party suspect defence, it is not a prerequisite to that defence succeeding. Just as there is no onus on the Crown to provide evidence of opportunity to secure a conviction, there is no onus on an accused to provide such evidence in order to successfully raise a third-party suspect defence.
[122] The evidence available regarding this alternate suspect, including the P-30 evidence, does not allow me to find that Ken Robertson murdered Barbara Short. It may be that I cannot find that Ken Robertson had anal intercourse with Barbara Short within a day of her death. What the evidence of the alternate suspect does achieve is to add one more hole in the Crown’s circumstantial case. I have no solid explanation for the P-30 deposit.
[123] It is possible that someone other than Ken Robertson attended the Short residence after 7:20 p.m. on October 18, 2008. Let me now turn to the forensic identification evidence.
[124] Craig Stewart was the Ontario Provincial Police Forensic Identification Officer who attended at the Short residence on a number of occasions.
[125] He arrived October 19, 2008 at 2:47 a.m. At that time Barbara Short was on a backboard. He noted the area where she was found was dimly lit. He used a flashlight to initially examine her and the scene. Photos he took of the area depict significant darkness.
[126] The body was in a secluded area behind the shop. It could not be seen from neighbour’s windows and light from the neighbour’s residence did not assist to illuminate this area.
[127] Stewart took hundreds of photos, video, measurements and swabs of potential evidence.
[128] He noted Barbara Short was casually clothed with a fleece hoody and sweatpants, socks, and no shoes.
[129] Her glasses were on the ground nearby. Face bloodied. Cap off the gas tank on the gravel nearby.
[130] The cap had fresh markings consistent with a wrench being used to remove it. While he searched the Short property no wrench was found which he could link to the cap.
[131] He located a thirty inch piece of 4 x 4 lumber under some other wood not far from the body.
[132] That wood had been moved once by Craig Short and once by EMS personnel to allow access to Barbara Short.
[133] He located what he determined to be blood transfer stains on the 4 x 4, as well as blood spattered droplets.
[134] As part of his investigation he examined and photographed the woodpile near the gas tank.
[135] There was significant evidence of blood and a pooling of blood on the woodpile and it was his view that Barbara Short went down face first onto the woodpile where she continued to bleed.
[136] It was his opinion at some point she was above the woodpile and blood fell from her creating satellite spatter stains on the end of the gas tank and several pieces of wood.
[137] As part of the investigation he seized the clothing worn by Craig Short as well as tools from the residence. He checked for blood. These items yielded no forensically significant evidence.
[138] Stewart went throughout the residence examining items and taking photos.
[139] He photographed the letter and account from George McFadyen and a booklet from the YWCA called “Fresh Start” which related how to start over from an abusive relationship – both documents were in plain view in drawers in the master bedroom.
[140] He photographed a love poem from Barbara Short to Craig Short found several days later on October 23 on a table in the bedroom.
[141] Stewart saw cups, glasses, plates and bowls in the sink and on the counter in the kitchen. He did not seize those items. He took no fingerprints in the residence. He sent nothing from these items away for DNA analysis.
[142] It was his evidence that as a result of a conversation with Detective D.L. all these items could be accounted for by the day’s activities of Barbara Short and Craig Short.
[143] He felt he needed to concentrate his efforts outside the residence.
[144] He agreed it went through his mind that Craig Short might be involved but he was doing his job to look for any evidence no matter which way it lead. However, he did not consider the possibility that someone else in the residence might be the killer.
[145] I find this was an example of the kind of investigation that determined its focus early and which lead to failures in the collection of evidence. It was not until the preliminary inquiry two years later that Detective D.L. learned no forensic investigation seeking fingerprints or DNA was done inside the home.
[146] Stewart conducted a sexual assault kit examination on Barbara Short with oral, vaginal and rectal swabs sent to CFS.
[147] He did no examination for the presence of gasoline on the ground near the tank or on the clothing of Craig Short. No one ever suggested this to him as part of the investigation. It was his opinion that the nature of the gas tank surface did not allow for fingerprinting.
[148] He was a blood stain pattern analyst and was qualified as an expert in this trial. While he took photos of the blood at the scene and made observations of the patterns at the time of the investigation, he was not asked to prepare a blood stain pattern report until approximately 1 ½ years later.
[149] As part of investigation he explored the backyard and the railway tracks behind.
[150] There were sets of tire tracks on the grass – L. told him they were from the Shorts Kubota vehicle and created the day of the murder. Stewart never measured the wheelbase to confirm they were consistent with the Kubota.
[151] He noted that the weeds and brush were thin at several places at the rear of the property allowing entry to the backyard from off the railway tracks.
[152] During the investigation and in his evidence provided later, Craig Short gave his view about differences he found in the home when he returned from the hockey game, the partially made bed, the muted television, the dishes in the sink, a glass of dark fluid on the counter, an apple core, chairs out of place. It seems clear that absent the signs of a struggle investigators had little interest in who might have been in the home just before the murder.
POST-OFFENCE CONDUCT
[153] In this area it is my intention to capture the significant statements and actions of Craig Short after 7:00 p.m. on October 18, 2008 since it is the Crown theory that Barbara Short was dead or dying at that point in time.
[154] It is without dispute that Short attended the Corunna Restaurant and then the Sarnia Sting hockey game. He went to Cravin’s and briefly to two other bars in Sarnia. Helen Tsaprailis testified that she recalled Short that night at Cravin’s in his usual spot near the bar talking to the usual people.
[155] It is Craig Short’s evidence that he arrived home at about 1:15 a.m. and started to look for his wife. We know he made the 911 call at 1:33 a.m. He told the 911 operator when he had returned home and where he had discovered his wife. He said she was “ice cold” and not breathing. The operator inquired as to whether he saw “obvious signs of anything”. Short reported he smelled gas near his fuel tank which was close to the body of Barbara Short. He terminated the call saying he had to get back to his wife.
[156] The Crown suggests that it is significant that Short did not mention the blood on Barbara Short’s face and in her hair. The suggestion is that Short was so married to his false narrative about the gas theft that he simply forgot or perhaps purposely only mentioned the smell of gas. Further there was no need to rush back to the body since it is his evidence he was certain she was dead.
[157] I am not convinced that I can draw any significance from the comments of Craig Short to the 911 operator. It is impossible for me to say what appropriate actions or comments might be when faced with this level of emergency. Anyone who has made a 911 call recognizes that it does not always involve a normal reasoned conversation.
[158] It was the evidence of Helen Tsaprailis that around mid-day on the day after Barbara Short’s murder, Craig Short came to Cravin’s and asked to speak to her in her office. At that time he produced the letter from McFadyen that mentioned the “Helen” tattoo and implicated her in his marital problems. He asked her if she had a shredder. Tsaprailis says she was shocked and asked him to leave. She testified that she did not speak to him further and went to the police.
[159] Craig Short maintains he showed Tsaprailis the letter as a warning that the police would want to speak to her and that he never made an inquiry about her shredding the letter.
[160] Perhaps understandably considering the time that has passed and the number of court proceedings Helen Tsaprailis was a frustrated and at times angry witness. She denied ever speaking to Craig Short about her own marital problems but then when faced with her prior testimony agreed she had. Despite saying she had nothing further to do with Short she later conceded she hosted a lunch for the Short family the next day and absorbed the cost herself.
[161] Despite concerns about her credibility I accept the fact that Short enquired about the presence of a shredder. I think even after the death of Barbara Short Craig Short was infatuated with Tsaprailis and wanted her to know their relationship, however platonic, could now be exposed as part of the investigation.
[162] I cannot conclude however that Short felt the destruction of this one page of correspondence would erase the record of the legal steps taken by his wife. I do not see this conversation as sinister in its intent.
[163] Kristie Butler was the niece of Barbara Short. She testified that on October 21, 2008 she spoke to Craig Short on the telephone. He provided her with his version of events surrounding Barbara’s death. He was very emotional, and crying from time to time. He told her that the cap was off the gas tank and a tool was beside the cap. She cannot recall how he described the tool.
[164] Craig Short recalls the telephone call and offers that he may have said a tool or wrench was necessary to remove the cap but he would have never said he saw a tool with the cap.
[165] I see this as a minor piece of post-offence conduct and even if I accept Butler’s version of the conversation the significance is minimal.
[166] Detective D.L. audio-recorded all his conversations with Craig Short. Short spoke to a number of police officers as they arrived at the Short residence. He provided a video-taped interview with Constable T.A. in the early morning hours of October 19, 2008. He provided a video-taped interview with Detective Sergeant M. on October 21 2008. As a result I have a great many statements and utterances from Craig Short explaining the circumstances of his life, marriage, business, the murder of his wife and his actions post-offence.
[167] The Crown has rightly drawn my attention to a number of statements by Short that reflect deceit in what he said and did not say. Let me deal with two initial areas of concern before I turn to the statements themselves.
[168] Defence counsel has objected to the Court considering inconsistencies in Craig Short’s statement by relying upon omitted details. It is argued that this offends the defendant’s right to remain silent. Counsel draws to my attention the Court of Appeal’s reasoning in R. v. Hill, 2015 ONCA 616 (Hill); R. v. A.G., 2015 ONCA 159 and R. v. Kiss 2018 ONCA 184.
[169] The following comment is made by Doherty J.A. at para. 46 of Hill.
The propriety of cross-examination on a prior statement made by an accused to the police turns on the purpose of the cross-examination. If the cross-examination is designed to challenge the credibility of an accused’s testimony based on inconsistencies between that testimony and a previous version of events provided by the accused, the cross-examination is appropriate. If, however, the cross-examination invites the trier of fact to draw an adverse inference from the accused’s silence when questioned by the police, the cross-examination is inappropriate.
[170] In my view the statement passages reviewed below, where Craig Short has chosen to omit significant details, are available to me in assessing his credibility. I cannot nor will I draw an inference adverse to the defendant from those found omissions.
[171] The second point that needs to be considered is the context in which Craig Short offers all his statements to police. As he has testified it was clear to him early on that the authorities were looking at his role in his wife’s death. There is no doubt that, at least in the mind of the lead detective, Craig Short was a suspect long before he was formally declared such.
[172] As early as 2:00 a.m. on October19, 2008 Constable W. told Craig Short he intended to take a statement from him and that he might be asking him difficult questions about whether Short had any involvement in his wife’s death.
[173] At 7:00 a.m. on the same morning Detective D.L. upon seizing Craig Short’s clothing had him sign a consent search which recited the seizure was part of a first degree murder investigation. When cross-examined on the appropriateness of this description L. testified that he wanted Short to understand the highest jeopardy he might be facing.
[174] In that context Short provided a videotaped statement to Constable T.A. at the Petrolia Ontario Provincial Police detachment. Short clearly undersold his marital discord. He told T.A. any problems were about his wife’s hormonal changes and issues related to his acquisition of the building lots on Wheatley Drive. As a couple they had gotten past it and things were good. He chose not to tell T.A. about the letter from McFadyen delivered by his wife and the dispute over the Tsaprailis tattoo.
[175] When Craig Short testified in this trial he told the Court he had never removed the gas cap found near his wife’s body. He did not need to. He checked the fuel level from another location on the tank. It is however clear to me that in the T.A. interview he described removing that same cap to dip the tank and even used his hand to show how it was unscrewed from the tank. I do not accept his explanations to the Court that he was indicating a different tank location.
[176] Detective Sergeant M. travelled from Ontario Provincial Police Headquarters in Orillia to apply his interviewing skills to Craig Short on October 21, 2008. While M. started off slowly his interview became aggressive and accusatory. He began to ask Short about whether Barbara kept a poetry journal. It is clear that this area of questioning was leading to Short’s destruction of his wife’s poetry, an area I will consider below.
[177] Short now admits he was being less than truthful with M.. He denied ever seeing a journal but when it became clear M. knew about the poetry he described it only as a notebook. He said “I knew she had a little bit of poetry…but I’ve never seen it the daughters brought that up that Mom sent her some poetry”… “I figured she was doing it on the computer”. He then went on to offer that Barbara was good at her poetry and that she had shown him one she wrote for her mom.
[178] When considering this deception I cannot lose sight of the fact that Bridgette had told her father his destruction of the poetry at the river was a stupid idea and that it would look suspicious. Craig Short’s attendance at the river with the poetry became perhaps the most significant piece of circumstantial evidence offered by the Crown in each of the three trials. I will now turn to that evidence.
[179] As early as October 19, 2008 the Ontario Provincial Police called for a surveillance team from Orillia to monitor the actions of Craig Short. On October 20, 2008 at 7:36 a.m. the team followed Craig Short in his pickup as it left the apartment building of Linda Short, his sister-in-law. At 7:36 a.m. Sergeant N.D. (N.D.) saw Short’s pickup enter Waterfront Park under the Bluewater Bridge and it parked at the southern end of the parking lot facing the St. Clair River. N.D.’s observation point was about 150 metres away. Short sat in his truck facing the river and then left twelve minutes later.
[180] Craig Short drove south staying along the River until he reached a commercial property known as Purdie’s Fish Market. Detective Constable D. (D.) picked up the surveillance at this point. D. was positioned about 300 metres away and he watched the Short vehicle both with and without binoculars. While it is conceded that Craig Short was in the vehicle D. was not close enough to identify him. Short parked close to the edge of the River and near a boat slip.
[181] D. saw a male dressed in black (we know to be Craig Short) leave his vehicle and walk up to 10 feet in front of the vehicle and bend down. D. does not recall anything in his hands but he was not concentrating on that area of the body and he cannot be sure. Short may have gone far enough to reach the water’s edge where he bent down but the officer’s view was blocked out by the pickup.
[182] Short returned to his pickup and departed the area arriving back at Waterfront Park at 7:58 a.m. He parked his vehicle near the north end of the parking lot along the water. N.D. was now about 100 metres away. He observed only with his naked eyes. He testified that he saw Craig Short moving around inside the pickup.
[183] At 8:03 a.m. a red garbage truck entered the parking lot and proceeded toward Short’s vehicle emptying garbage cans as it went. N.D. says he saw Craig Short leave the pickup with a small white garbage bag knotted at the top and walk to a garbage pail. He saw Short put one hand inside the can and make a motion like he was lifting something. Short then placed the white bag in the can and it seems placed whatever else he had moved on top and then re-entered his vehicle.
[184] Short’s vehicle remained in place until that can was emptied by the refuse collector and then he drove out of the lot.
[185] Beyond the testimony of N.D., video surveillance on the Bridge captured the movement of the vehicles consistent with the officer’s evidence but not the finer details of Craig Short’s actions.
[186] Police stopped the garbage truck and followed it back to the municipal yard where its collection of garbage was searched thoroughly by officers. While there were white plastic bags in the refuse none were intact. The officers sifted through the garbage and collected torn pieces of lined paper with ink and pencil writing which appeared to be poetry or love literature. They accumulated all they discovered in a blue bin which was secured by a Detective and passed along to the forensic identification officer.
[187] It is clear from the evidence that the Village of Point Edward has no set or published schedule for garbage pickup at these Parks.
[188] Stewart reassembled much of the torn poetry but it was clear to him that there were pieces and pages still missing. Barbara Short’s poetry recovered was about nature, life and love. Several were clearly critical of her life with her husband. One which mentions Ken is no doubt about her love for Ken Robertson.
[189] Craig Short had told his daughter Bridgette that he had set her mother’s poetry free in the St. Clair River. He may have told Robyn as well. Craig Short testified that he found the poetry notebook where it had slid down near the seat in his pickup truck. He took the book into Linda Short’s where he was staying. He came to the idea that consistent with an indigenous practice he had heard of he would set Barbara’s thoughts free in the water at a place she had always found special.
[190] It is his evidence that in a darkened bedroom at Linda Short’s, without his glasses, he sat on the bed and selected meaningful poems to place in the water under the Bluewater Bridge. He chose those where he was able to recognize a name of someone special to his wife. He was cross-examined about this selection and why a poem with the name Ken ended up in the garbage along with a poem about Barbara’s beloved sister Karen.
[191] It was Craig Short’s explanation that he thought the Ken mentioned was Barbara’s brother who she did not like and he simply missed the Karen poem. It is frankly difficult to believe that this meaningful exercise was carried out in such a haphazard fashion.
[192] Short testified that he went to Bluewater Park initially but found too many people there. He was concerned that they would become upset at him for putting items into the river. He then drove to Purdie’s Fish Market just slightly down stream, a place where he and Barbara went to eat, and he released some of the poems at the boat slip where D. saw him get out of his vehicle.
[193] He did not complete his task as a door slammed and so he returned to the park, tore up the balance of the remaining poetry including the back cover and deposited it in the white bag and then in the garbage container. He denies moving the garbage around to cover his bag as described by N.D.. I cannot accept that the officer from his vantage point could see the detailed hand movements he described.
[194] Craig Short testified that the balance of the notebook and poetry placed in garbage barrel meant nothing to him and he could have disposed of it anywhere. He chose this location simply for the reasons he provided.
[195] It is the argument of the Crown that Short thought he needed to get rid of the poetry which he felt was incriminating. It described Barbara’s dislike of him and her love of another and wanting a new life. He did not want to take the book back to Linda Short’s apartment and so he spun this story of setting the poems free while destroying the book of poetry.
[196] In considering this piece of circumstantial evidence I start with the premise that persons who are actually grieving this form of traumatic loss may respond with actions that would otherwise be illogical or irrational. In my view as the trier of fact my knowledge of the human experience allows me to make the observation as I have previously ruled without the need for expert evidence.
[197] I suspect Craig Short did release some of Barbara Short’s poetry into the water at Purdie’s. It is beyond my perception of Craig Short’s capabilities that he intentionally did so to be able to subsequently offer an explanation for his destruction of the poems.
[198] In considering the Crown’s emphasis on the destruction of the poetry I return to the law on post-offence conduct. In R. v. Calnen 2019 SCC 6 at para. 134 the Supreme Court of Canada discussed the role of post-offence or as they describe it after-the-fact conduct.
Not only is it an error to relegate after-the-fact conduct evidence to a supporting or secondary role, there is also a need to maintain the distinction between the threshold admissibility of evidence and the separate issue of whether the Crown has met its ultimate burden of establishing the guilt of the accused beyond a reasonable doubt. The test for the admission of evidence is first focussed on relevance, and the tendency of the evidence, as a matter of logic, common sense and human experience, to make the proposition of which it is advanced more likely than that proposition would be in the absence of that evidence. After-the-fact conduct evidence, when admitted, simply adds that piece of evidence as a building block in the Crown or Defence case. It is at the end of the case, when all the evidence has been heard, that the fact finder is required to determine how much, if any, weight they will place on this evidence, how it fits with other evidence, and whether, based on the totality of the evidence, the Crown has proved the charges beyond a reasonable doubt.
[199] Further in R. v. Peavoy, 1997 CanLII 3028 (ON CA), [1997] O.J. No. 2788 para. 26 the Court of Appeal directed that:
Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.
It can only be used by the trier of fact in this manner if any innocent explanation for the conduct is rejected. That explanation may be expressly stated in the evidence, such as when the accused testifies, or it may arise from the trier of fact’s appreciation of human nature and how people react to unusual and stressful situations. It is for the trier of fact to determine what inference, if any, should be drawn from the evidence.
[200] Based on all of the evidence, including the attempts to dodge the police questioning, I cannot reject the explanation provided by Craig Short for his destruction of his wife’s poetry. Even if I am wrong in that assessment this single piece of circumstantial evidence cannot carry the burden placed on the Crown.
CONCLUSION
[201] Although not part of the necessary legal analysis before concluding I want to comment on some broad observations.
[202] Investigators have always understood the weakness of this prosecution. I say that because beyond the investigative strategies discussed in these reasons they employed an undercover cell insert at the time of Short’s initial arrest. They held Craig Short under surveillance after his release from custody and remotely activated an audio-recorder positioned at his wife’s grave. As late as 2010 an undercover officer attended the grave with Short and I have viewed the video recording of that event. Since no evidence from this subsequent investigation was lead by the Crown, I must conclude that no inculpatory evidence was forthcoming despite these investigative techniques.
[203] I return to the point where I began. Having provided a detailed analysis of each inference there is little more to say. The proposed inferences taken individually and then considered cumulatively do not lead to the conclusion that Craig Short’s guilt is the only reasonable or rational inference that can be drawn from this body of evidence.
[204] I therefore find Craig Short not guilty of the murder of Barbara Short.
“Regional Senior Justice B. G. Thomas”
Regional Senior Justice B.G. Thomas
Released: September 9, 2019.
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ROGER CRAIG SHORT
Defendant
REASONS FOR JUDGMENT
Regional Senior Justice B.G. Thomas
Released: September 9, 2019.