



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marki, 2021 ONCA 83

DATE:  20210209

DOCKET: C67416

MacPherson, Trotter and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Benjamin Ronald Marki

Appellant

Delmar Doucette and Cara Barbisan, for
    the appellant

Amy Alyea, for the respondent

Heard: January 20, 2021 by video conference

On appeal from the convictions entered
    by Justice Terrence A. Platana of the Superior Court of Justice on April 20,
    2018, sitting with a jury.

MacPherson J.A.:


A.

Overview

[1]

Wilfred Pott and Anne Chuchmuch were a common
    law couple with whom Benjamin Marki lived for about three years. They lived
    together as a family in a house in Thunder Bay.

[2]

On December 27, 2015, Pott and Chuchmuch were
    stabbed to death in their home. Gasoline was spread and a fire was set in the
    home. Marki was present just outside the home when the firefighters and police
    arrived.

[3]

On January 15, 2016, Marki was charged with two
    counts of second degree murder, one count of arson, and one count of
    interfering with human remains (burning). It was agreed at trial that one
    person committed all the offences and the only live issue was the identity of
    that person.

[4]

On April 20, 2018, the jury found Marki guilty
    on all counts. On August 29, 2018, Platana J. imposed life sentences with no
    eligibility for parole for 20 years on the murder charges and concurrent time
    served sentences on the other charges.

[5]

On September 12, 2019, the appellant filed a notice
    of appeal challenging the convictions. He does not appeal the sentence (notice of
    abandonment filed October 5, 2020).

B.

facts

(1)

The parties and events

[6]

In 2009-2010, Pott and Chuchmuch moved from
    southern Ontario to Thunder Bay to make a fresh start. In 2012-2013, Marki
    moved to Thunder Bay and resided with the couple. Pott and Chuchmuch treated
    Marki as a son; Marki called them dad and mom.

[7]

During the eight months prior to December 27,
    2015, there were two fires at the family home. One, to which firefighters
    responded, resulted in a wooden shed in the backyard being destroyed. The other
    involved a boat in the driveway.

[8]

Robert Guitard lived in a home whose backyard
    abutted the backyard of the home where Marki lived with Pott and Chuchmuch. On
    the night of December 27, 2015, he was at home when he noticed flickering
    light. When he looked out his window, he saw flames and smoke coming out the
    back door of the home where Pott and Chuchmuch lived. He told his wife to call
    911, which she did at 10:23 p.m. He then went outside to move his truck. When
    he did so, he saw Marki frantically pounding on the back door of the burning
    home, trying to open it, and calling out is anybody in there and let me in.
    Guitard knew that opening a door during a fire can be dangerous so he told
    Marki to stop trying to enter.

[9]

When the firefighters arrived, they heard
    Markis voice in the backyard. When they saw that he was close to the fire,
    they coaxed him to move away from the house and come to the front.

[10]

According to fireman Jim Gowenlock, Marki told
    him that he lived in the house, had been out walking his two dogs, had returned
    to the house to find it on fire, and that there might be people inside.

[11]

Two other firefighters entered the house through
    the front door. Marki tried to enter as well. He had one foot over the
    threshold before Constable Braydon Beck, the first police officer on the scene,
    pulled him back out of the house. Beck took Marki to Guitards garage.

[12]

When the firefighters entered the house, they
    found the bodies of Pott and Chuchmuch. Chuchmuch had at least 40 stab wounds
    all over her body, with 12 being categorized by a pathologist as lethal or
    potentially lethal. Pott had bruises, abrasions and stab wounds, one of which
    caused his death. The pathologist determined that both victims died prior to
    the fire.

[13]

The fire investigator concluded that gasoline
    had intentionally been introduced and the fire deliberately set.

[14]

After the police and Marki left Guitards
    garage, Guitard saw two folded up knives on the floorboard of his snowmobile.
    He called the police back and the police seized the knives. Forensic testing
    established that there was blood on one of the knives. The blood swab provided
    a mixed profile of two people, the major contributor being a profile that could
    not exclude Chuchmuch and the other one being a profile that could not exclude
    Pott.

[15]

Forensic testing also established that there was
    gasoline and blood on Markis shoes.

[16]

Constable Beck interviewed Marki in Guitards
    garage from 10:49 p.m. to 12:03 a.m. According to Constable Becks paraphrase
    notes, Marki said: he went to the local First Nations reserve and bought smokes
    and then started drinking; returned home and saw that Pott and Chuchmuch were
    in the kitchen making pies mid-afternoon; kept to himself in his room for most
    of the afternoon; did not eat supper with the others; took the dogs for a walk;
    brought the dogs back but did not go into the house; went to a bus stop that
    was a two minute walk away; waited about six to eight minutes for a bus; heard
    sirens and saw flashing lights; suspected from the earlier fires that the
    emergency vehicles might be going to his house; ran back to the house; kicked
    the front door and tried to enter the house, but was knocked back by smoke;
    tried to kick the back door; was told by Guitard to get away from the door;
    and, at Guitards suggestion, handed one of the dogs over the fence to him.

[17]

At the end of the interview, after more than an
    hour of questioning, Marki said, in what Constable Beck said was a verbatim
    statement: Im going to be arrested for this, I know it. Might as well arrest
    me now. I know how this works. Im the most eligible to go to jail. I should
    have jumped on the bus and took off.

(2)

The trial

[18]

The trial lasted six days. Marki did not testify
    and called no evidence. The jury deliberated for 12 hours over two days. The
    jury found Marki guilty on all four charges. He appeals from the convictions.

C.

issues

[19]

The appellant raises three issues on the appeal:

1.

Did the trial judge err in failing to give a
W.(D.)
instruction with respect to the statements the appellant made to a firefighter,
    a police officer, and one of Potts friends?

2.

Did the trial judge err in failing to give a
    corrective instruction in regard to purported after-the-fact conduct?

3.

Did the trial judge improperly instruct the jury
    on the defences failure to call evidence?

D.

analysis

(1)

The
W.(D.)
issue

[20]

It was common ground at trial that one person
    committed all the offences and that the only live issue was the identity of
    that person. The appellant made three statements to firefighter Gowenlock,
    Constable Beck and Potts friend John Zahn. Although they were not recorded and
    there were differences in detail, there was a common thread in all three
    conversations  the appellant stated that he had been out and when he came back
    to the house it was on fire. Accordingly, the appellant made three exculpatory
    statements that he was not the person who had committed the four crimes,
    including arson and murder.

[21]

During the pre-charge conference, the trial
    judge and counsel discussed elements of the final instructions that were
    specific to the facts of the case. The trial judge then ran down the checklist
    of final instructions found in
Watts

Manual of Criminal Jury
    Instructions
to see what other instructions might be given. One of the
    potential instructions in the checklist was the
W.(D.)
instruction.
    When it was discussed, the following exchange took place:

[THE CROWN]: Page 10 [of an early draft
    charge], testimony of the person charged, the
W.D.
instruction.

THE COURT: Oh no, I  Ive clearly taken that
    out.

Defence counsel did not comment on
    this exchange.

[22]

The appellant submits that a full and proper
W.(D.)
instruction specifically related to the appellants three exculpatory statements
    was required; the trial judge had a duty, regardless of the position or silence
    of counsel, to give this fundamental instruction.

[23]

The
W.(D.)
instruction arose in a case
    where the accused testified:
R. v. W.(D.)
, [1991] 1 S.C.R. 742. This
    was manifest in the actual language of the famous tripartite formulation of the
    instruction which refers explicitly to the testimony of the accused. However,
    subsequent case law has made it clear that the principles underlying
W.(D.)
are not confined merely to cases where an accused testifies and their evidence
    conflicts with that of the Crown witnesses. Thus, as expressed by Blair J.A. in
R. v. B.D.
, 2011 ONCA 51, at para 114:

Where, on a vital issue,
    there are credibility findings to be made
between conflicting evidence called by the defence or
arising
    out of evidence favourable to the defence in the Crown's case
, the trial
    judge must relate the concept of reasonable doubt to those credibility findings.
    [Emphasis added.]

[24]

Although the trial judge spoke at length and
    properly about the concept of reasonable doubt, the appellant submits that he
    did not link it sufficiently to some of the evidence favourable to the defence
    in the Crowns case.

[25]

I do not accept this submission. Even though
W.(D.)
considerations may be in play in a case where the accused does not testify or
    call evidence, there is no explicit formula that must be provided. Appellate
    review should focus on whether the trial judge adequately explained the facts
    and law to the jury on a functional level. What is required is that the jury
    understand the burden and standard of proof and their application.

[26]

In my view, that happened in this case. The
    trial judges jury charge relating to the presumption of innocence and the beyond
    reasonable doubt standard of proof was impeccable.

[27]

Importantly, the trial judge also gave the jury
    a good roadmap for assessing the appellants statements to witnesses, including
    firefighter Gowenlock, Constable Beck and Mr. Zahn. As requested by defence
    counsel, the jury was given the model instruction on out-of-court statements by
    an accused. The trial judge instructed the jury:

Some or all of the statements may help
    Benjamin Marki in his defence. You must consider those remarks that may help Benjamin
    Marki along with all of the other evidence, even if you do not believe them, unless
    you are satisfied that he did not make them. In other words, you must consider
    all the remarks that might help Benjamin Marki even if you cannot decide
    whether he said them or whether you believe them. If you decide he made a
    remark that may help him in his defence or if you cannot decide whether he made
    it, you will consider that statement along with the rest of the evidence in
    deciding whether you have a reasonable doubt about Benjamin Markis guilt.

[28]

For these reasons, I do not accept the
    appellants submissions on the first issue.

(2)

The after-the-fact conduct issue

[29]

A few days after the homicide, but before the
    appellant was charged, he had coffee with Brian Walker, a good friend of Potts.
    Walker testified that within days of Markis arrest on January 15, 2016, Marki
    called from the district jail to ask that Walker and his wife change their
    statements to the police. However, Walkers statement was not given to the
    Crown until March 2016 and it was disclosed to the defence sometime after that.
    Walkers wife never gave a statement.

[30]

During his closing address to the jury, Crown
    counsel said:

And [Marki] knows something about what the
    evidence is before he ever gets the disclosure. And so when he calls and asks
    someone to change their story and says, Ive seen your statement, thats a
    lie. Its Mr. Markis lie. We know he didnt see Mr. Walkers statement because
    he didnt have it yet and we know he didnt see Mr. Walkers wifes statement
    because she didnt give one. But why does he call and ask them to change their
    stories? Because he knows hes guilty and he knows and has every expectation
    that theyre going to say something thats going to implicate him.

[31]

Defence counsel did not object to this aspect of
    the Crown closing address. Instead he succinctly, and accurately, addressed it
    in his own closing address, saying the situation could not have taken place
    because the appellant could not have seen the statement. Moreover, defence
    counsel did not ask the trial judge for a corrective instruction on this point.

[32]

In these circumstances, I regard this as a very
    minor point and would not give effect to it as a basis for overturning the
    jurys verdict.

(3)

The failure to call evidence issue

[33]

In his jury instructions, the trial judge told
    the jury:

You did not hear any evidence offered by the
    defence. I remind you again that the burden of proof is on the Crown. There is
    no requirement of the accused person to call any evidence. You should not
    conclude
solely
on the basis of his decision not
    to call evidence or to testify himself as an acknowledgment of guilt. [Emphasis
    added.]

[34]

The appellant submits that the use of the word
    solely in this instruction had the effect of telling the jury that they could
    rely on the appellants failure to testify or to call evidence as
a
basis, even if not the
sole
basis, in determining guilt.

[35]

I am not persuaded by this submission. In
R.
    v. Araya
, 2015 SCC 11, Rothstein J. said, at para. 52:

Parsing the language in one particular
    sentence to determine whether it was sufficient to warn of an impermissible
    line of reasoning, without taking into consideration the greater context of the
    jury instructions and the trial itself, represents the kind of dissection and
    minute scrutiny this Court warned against in
Cooper
.

[36]

There was no risk, in the circumstances of this
    case, that the jury would have treated the appellants failure to testify as
    evidence of his guilt. The jury instructions, as a whole, tied the presumption
    of innocence to the burden of proof in a manner that spoke almost directly to
    the irrelevance of the appellant's failure to testify. It properly conveyed that
    the evidence of the Crown stood alone and must be evaluated on that basis. The
    instruction did not invite the inference that the appellant chose not to
    testify to hide his guilt. When read in the context of the address of counsel
    and the jury charge as a whole, the jury would have understood that the Crown
    could prove the appellants guilt only on the evidence and that the appellants
    silence at trial did not constitute evidence and therefore could not be used to
    infer guilt.

E.

disposition

[37]

I would dismiss the appeal.

Released: JCM FEB 09 2021

J.C.
    MacPherson J.A.

I
    agree. Gary Trotter J.A.

I
    agree. Harvison Young J.A.


