



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sauve, 2018 ONCA 813

DATE: 20181015

DOCKET: C64134

Simmons, Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Clark Eric Sauve

Appellant

Louis P. Strezos, as duty counsel

Clark Eric Sauve, acting in person

Lorna Bolton, for the respondent

Heard: October 3, 2018

APPEAL BOOK ENDORSEMENT

[1]

Following a judge alone trial, the appellant was convicted of the second
    degree murder of his wife. He was sentenced to life imprisonment with no
    eligibility for parole for twelve years.

[2]

On behalf of the appellant, duty counsel argued that the trial judge
    materially misapprehended the evidence at trial with the result that he failed
    to consider potentially exculpatory evidence under the third prong of
W.D.


[3]

We agree that the trial judge erred when he stated there was no video
    recording of a demonstration conducted by police to determine how long it may
    have taken a person in a wheel chair to go from the upstairs master bedroom via
    the stair lift to a wheel chair on the main floor and then to a nearby alarm
    keypad. In fact, contrary to the trial judge's statement, the police video
    recording of the demonstration was played in court on the first day of the
    trial and was entered as an exhibit.

[4]

Nonetheless, we are not persuaded that the trial judge's error amounted
    to a material misapprehension of the evidence adduced at trial warranting
    appellate intervention.

[5]

As we read his reasons, despite saying that no video recording had been
    filed, the trial judge took full account of the demonstration evidence but
    concluded that it did not give rise to a reasonable doubt.

[6]

In particular, the trial judge's reasons show he fully appreciated the
    defence position concerning the significance of the demonstration evidence,
    namely, that it could give rise to a reasonable doubt whether the appellant was
    the only person in the house when his wife was shot.

[7]

The defence position was premised on the fact that it took 52 seconds in
    the demonstration video for the demonstration officer to reach the alarm keypad
    going from the master bedroom to the keypad using wheelchairs and the stair lift.
    On the other hand, one possible interpretation of the evidence concerning the
    events at issue was that the alarm system was deactivated by entering a code in
    the keypad within 32 seconds of the alarm being triggered - a feat the defence
    submitted the demonstration video suggested the appellant, in his wheel chair,
    was incapable of performing.

[8]

In our view, on a fair reading of his reasons, the trial judge
    concluded, in effect, that the demonstration evidence did not give rise to a
    reasonable doubt because it amounted to speculation. This was so both because
    of inherent shortcomings in the demonstration evidence and also because it had
    to be considered in the context of the totality of the Crown's case. Overall,
    it was not a reliable reflection of the time required for the appellant to get
    to the alarm keypad from the master bedroom or of the necessity of him doing so
    in any event, when considered in the context of the whole of the evidence.

[9]

As noted by the trial judge, some of the inherent shortcomings in the
    demonstration evidence were that the officer who performed the demonstration
    did not testify  he was an able-bodied person and there was no evidence as to
    how familiar he was with wheel chairs, stair lifts or the alarm system.

[10]

Further,
    there was uncertainty about whether the alarm could be turned off remotely by a
    fob.

[11]

Moreover,
    the trial judge had already recited evidence leading him to conclude the
    Crown's case that the appellant was the shooter was overwhelming. For example,
    the appellant had gunshot residue on both hands; the gun was faulty and it took
    both hands to fire it; the appellant's DNA was found on the gun and on the
    bullets in the gun; and there was no indication of a robbery or home invasion.

[12]

Duty
    counsel did not suggest that the trial judge's finding that the appellant's
    four statements to the police were "riddled with inconsistencies and
    admitted lies and  simply not believable" was not reasonable.

[13]

We
    note, as well, that there was evidence at trial showing the appellant could crawl
    and also undermining his claim of disability.

[14]

In
    all the circumstances, we see no realistic possibility that watching the video
    again would have assuaged the trial judge's concerns about the weight of the
    demonstration evidence.

[15]

On
    his own behalf the appellant argued that: i) it is apparent from photographic
    evidence that a police officer mis-described the location of his wheel chair
    near the foot of the stair lift; ii) the trial judge improperly rejected the
    possibility of cross-contamination of DNA evidence; and iii) the trial judge
    failed to consider alternate explanations for the gunshot residue found on his
    (the appellant's) hands. Based on our review of the record, none of these
    arguments is borne out by the evidence or the trial judge's reasons.

[16]

As
    for his sentence appeal, the appellant failed to identify any error in the
    trial judge's reasons concerning the parole ineligibility period. We see no
    basis on which to interfere.

[17]

The
    conviction appeal is dismissed. Leave to appeal sentence is granted but the
    sentence appeal is dismissed.


