



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Camille,









2020 BCCA 32




Date: 20200127

Docket: CA45529

Between:

Regina

Respondent

And

Gordon Paul
Camille

Appellant




Before:



The Honourable Madam Justice Bennett

The Honourable Mr. Justice Harris

The Honourable Mr. Justice Goepel




On appeal from:  An
order of the Supreme Court of British Columbia, dated
March 13, 2018 (
R. v. Camille
, 2018 BCSC 478, Kamloops Docket 101253).




Counsel for the Appellant:



K.M. Walker, Q.C.

K. Thorsteinson





Counsel for the Respondent:



E. Campbell





Place and Date of Hearing:



Kamloops, British
  Columbia

October 3, 2019





Place and Date of Judgment:



Vancouver, British
  Columbia

January 27, 2020









Written Reasons by:





The Honourable Madam Justice Bennett





Concurred in by:





The Honourable Mr. Justice Harris

The Honourable  Mr. Justice Goepel








Summary:

Mr. Camille was
convicted of manslaughter after being found to have caused the death of Dennis
Adolph. The Crowns case was circumstantial, and the trial judge ruled out
accidental or deliberate self-harm as reasonable, alternative inferences to
guilt. Mr. Camille appeals his conviction on the basis that the trial
judge erred in concluding that the only reasonable inference was that he caused
the death of Mr. Adolph. He also alleges that the trial judge improperly
drew inferences in the absence of expert evidence. Held: Appeal dismissed. The
trial judge did not err in finding the alternative inferences to be speculative,
nor did she improperly draw inferences where expert evidence was necessary. Her
conclusions were available on the evidence and the verdict was reasonable.

Reasons for Judgment of the Honourable
Madam Justice Bennett:

[1]

Gordon Camille appeals his conviction for manslaughter for causing the
death of Dennis Adolph. Mr. Adolph died as a result of blood loss from a
stab wound. Mr. Camille argues that the trial judge erred in concluding
that the only reasonable inference from the circumstantial evidence was that he
caused the death of Mr. Adolph.

[2]

For the reasons that follow, I would dismiss the appeal.

Factual overview

[3]

The grounds of appeal relate to the inferences drawn by the trial judge
from her findings of fact. Thus, I will set out the evidence in detail.

[4]

On January 26, 2016, Dennis Adolph died at the age of 49 years from
exsanguination, or loss of blood, as a result of a single stab wound to his
abdomen. In the two months preceding his death Mr. Adolph had been living
at the Four Seasons Motel in Kamloops, B.C. and sharing a room with Mr. Camille.

[5]

On January 25, 2016, Mr. Adolph and Mr. Camille returned
to their room together at 8:15 p.m. During that evening, witnesses heard loud
voices and music emanating from the room, but nothing in the nature of a
dispute. Mr. Adolph and Mr. Camille remained alone throughout the
night and into the following morning.

[6]

Surveillance cameras on the motel property captured video footage of the
comings and goings of Mr. Adolph and Mr. Camille between
January 25, 2016 and January 26, 2016.

[7]

The footage confirmed that from 8:15 p.m. on January 25, 2016 to
6:15 a.m. the next morning, only Mr. Adolph and Mr. Camille could have
been in the roomno one else.

[8]

Similarly, from 6:15 a.m. to 11:30 a.m. on January 26, 2016, nobody
left or entered the room other than Mr. Adolph and Mr. Camille in the
following instances:

a)

At 6:15 a.m., Mr. Adolph attended the office of the motel manager, Mr. Vinepal,
and then returned to his room.

b)

At 6:52 a.m., Mr. Camille left the room and proceeded towards Mr. Vinepals
office. After knocking on the door and receiving no response, he returned to
the room.

c)

At 11:15 a.m., Mr. Camille left the room and reported Mr. Adolphs
death to Mr. Vinepal.

[9]

Following Mr. Camilles report, first responders attended the room
and found Mr. Adolphs body lying in a perpendicular position on one of
the two beds, with his legs draped over the edge and into the area between the
two beds. He was dressed in pajama pants only and covered by a blanket. A wound
to his abdomen was clearly visible once the blanket was removed. The first responders
moved Mr. Adolph to the floor and conducted various resuscitative
procedures, until ultimately discontinuing at 11:40 a.m.

[10]

A kitchen knife was found tucked under a pair of eyeglasses in the
drawer of a nightstand just a few feet from Mr. Adolphs body. The knifes
blade, measuring approximately five inches in length, had blood on the tip. The
blood was determined by DNA testing to be Mr. Adolphs blood. The trial
judge found that this was the knife used to stab Mr. Adolph. A red
washcloth was also found hanging from the handle of the same nightstand.

[11]

Aside from what was on the knife, there was little blood at the scene
other than a small stain on the blanket beside Mr. Adolphs body. No blood
was found in the drawer of the nightstand or in any part of the room, nor was
blood found outside. The Crowns forensic pathologist, Dr. Lisa Steele,
explained that Mr. Adolphs wound was plugged by a stopper of fat that
directed his blood to flow internally.

[12]

There were no indications of a struggle having taken place.

[13]

Several bottles of alcohol were seized from the room. Some were open,
others were closed. Many were spread across the floor.

[14]

An attending officer at the scene testified that Mr. Camille had an
odour of alcohol on his breath, as if he had been drinking previously, but he
did not appear to be intoxicated.

[15]

The Crowns DNA expert, Shaun Neudorf, confirmed that the blood on the
knife from the drawer was Mr. Adolphs, although he could not determine
when it was first applied to the blade. He agreed that DNA may be removed from
an object by washing it off, or it may remain for years.

[16]

The handle of the knife was submitted for genetic testing but not
examined for fingerprints. Results indicated mixed DNA from only two male
sources. Mr. Neudorf gave statistical evidence to suggest that Mr. Camille
and Mr. Adolph were likely the donors.

[17]

The source of the DNA on the knifes handle was unknown; it could have
been from skin cells, blood, or some other bodily substance. Mr. Neudorf could
not determine when the DNA taken from the knifes handle was first applied. He
agreed that two peoples DNA could be on most objects in a room shared for a
period of months.

[18]

Dr. Steele was qualified to give opinion evidence on the causes,
mechanisms and physical processes of death. She described the fatal wound as a
single incision immediately to the left of the umbilicus. As noted above, a
stopper of fat plugged the wound and directed close to a litre of blood into Mr. Adolphs
abdominal cavity and soft tissues. Mr. Adolph also suffered from two small
cuts to the back of his left hand.

[19]

Dr. Steele could not indicate a precise time of death, but she
noted that death would have ensued in a matter of minutes. When the first
responders arrived at approximately 11:30 a.m.,
rigor mortis
had just
begun and Mr. Adolphs body was still warm. This suggested a time of death
between two and six hours earlier. Given the evidence that Mr. Adolph was
alive at 6:15 a.m., she indicated that his time of death was likely between
6:15 a.m. and 9:30 a.m. She readily acknowledged that her conclusions were not
certain in this regard.

[20]

Dr. Steele testified that the nature and limited extent of blood
flow to the exterior of the wound, and the lack of blood found elsewhere in the
room, suggested that Mr. Adolph was lying down when he was stabbed, in the
position where his body was found. For instance, there was bleeding from the
abdominal wound to the side of Mr. Adolphs body, as though he were lying
flat. Furthermore, in that position, the blood stain found on the blanket
beside Mr. Adolphs body corresponded with the path of oozing blood from
his abdomen. The limited vertical blood trails on Mr. Adolphs abdomen
indicated that he may have tried to sit up.

[21]

Dr. Steele acknowledged that Mr. Adolph could have been
standing when he was stabbed, and the stopper of fat would have still kept the
majority of blood in his abdomen from leaking out. It was also possible that Mr. Adolph
could have walked after receiving the fatal blow. However, more blood would
likely have been found in the room if Mr. Adolph had been standing.

[22]

Dr. Steele described the characteristics of the abdomen wound. It
was about one inch in length at the surface, and between two and three inches
deep (less than the length of the blade of the knife seized from the
nightstand). The angle of the wound suggested that the sharp end of the knife
was oriented upwards and to the left when the incision was made, while the
blunt end was oriented downwards. Dr. Steele indicated that the knife was
likely not inserted to the level of its hilt, or there would have been an abrasion
mark left on Mr. Adolphs abdomen.

[23]

Dr. Steele could not quantify the amount of force required to
inflict the wound; however, she did note that the area of the body that was
penetrated has no resistant structures. Furthermore, Mr. Adolph was very
slender and had little subcutaneous fat or additional soft tissue to be
penetrated before a knife could reach the abdominal cavity.

[24]

Dr. Steele acknowledged that the alignment of the two cuts on the
back of Mr. Adolphs left hand was consistent with a single slice. She
stated that the cuts could have been sustained if Mr. Adolphs hand was in
the path of the stab to his abdomen, or if he raised his left hand and
obstructed the path of another potential stabbing. Either way, they were not
indicative of him having grabbed the knife as if it was coming towards him.

[25]

With the exception of the cuts on his left hand, Dr. Steele
indicated that there were no physical signs on Mr. Adolphs bodysuch as
bruising or lacerationsthat he had been in a fight or had tried to defend
himself.

[26]

Crown counsel also examined Dr. Steele regarding the
possibility that Mr. Adolph inflicted the fatal wound on himself. She
testified that she did not observe any indicia consistent with suicide or past
attempts of suicide.

[27]

A small plastic keychain that was identified as a Minecraft toy was
found in the cuff of Mr. Adolphs pajama pants during the autopsy. Those
pants had a single pocket with a one-inch hole in it.

[28]

Samples of Mr. Adolphs urine, blood, and vitreous fluid were
analyzed by Heather Dinn, a Forensic Specialist of the RCMP. Her toxicology
report was jointly admitted into evidence at trial. She did not testify.

[29]

Mr. Adolphs blood alcohol concentration (BAC) at the time of his
death was measured at 400 mg%. While this extraordinarily high level is often
associated with death by acute alcohol poisoning, Dr. Steele opined that Mr. Adolph
was alive when he was stabbed given the profuse bleeding into his abdomen. In
any event, the toxicology report described the physiological effects of such a
high BAC:

A BAC of 400 mg% is generally associated with severe intoxication. Signs and
symptoms which may be present include: very slurred to incomprehensible speech
,
extremely poor balance (e
.
g. swaying
while standing, staggering while walking with reeling and lurching when called
upon to make sudden t
u
rns or to carr
y
out unexpected
m
ovements and poss
i
bly
i
nability to stand or walk)
,
me
n
tal confus
i
on,
emotiona
l
i
n
stability,
disorientat
i
on
,
gross
muscu
l
ar incoordination, vomiting,
incontinence of urine or faeces, impaired consciousness or stupor. However, in
a small percentage of the drinking population a significant degree of tolerance
to alcohol concentrations at and above 400 mg% may be acquired through chronic
consumption of alcohol. As a result of this tolerance, the symptoms
characteristic of a particular BAC will be delayed until much higher BACs.

[30]

Dr. Steele agreed that a person with a BAC of 400 mg% would have
impaired walking, fine motor skills, and judgment.

[31]

There was, however, no expert evidence before the trial judge on the
issue of how impairment would affect a persons pain response and reflexes in
reaction to that pain response.

[32]

Mr. Adolphs BAC was declining at the time of his death, which led
the toxicologist to the conclusion that he had not consumed any significant
amount of alcohol within the preceding 30 minutes.

[33]

Mr. Camille did not testify.

[34]

At trial, the question of a third-party perpetrator was argued as a
major issue. The issue on appeal was narrowed to whether Mr. Camille stabbed
Mr. Adolph, or whether Mr. Adolph stabbed himself.

Issues on appeal and positions of the parties

[35]

Mr. Camille raises several related grounds of appeal dealing with
the inferences the trial judge drew from the evidence. He submits that the
trial judge erred by wrongly filling in gaps in the evidence, that she ignored
other reasonable inferences available on the evidence, and that the verdict was
unreasonable or unsupported by the evidence. He also says that the trial judge
erred by relying on common sense when expert evidence was required. The Crown
concedes this last issue, but seeks to apply the curative provision, s. 686(1)(b)(iii),
arguing that there was no substantial wrong or miscarriage of justice.

[36]

In my view, the trial judge did not err in her assessment of the
circumstantial evidence, and I do not agree with the Crowns concession with
respect to the trial judges analysis. I return to these points below.

Discussion

Legal framework

[37]

In
R. v. Villaroman
, 2016 SCC 33, the Court settled the test to be
applied when assessing circumstantial evidence, drawing inferences from the
evidence or absence of evidence, and determining if guilt is proved beyond a
reasonable doubt.

[38]

The concern regarding circumstantial evidence is that a jury may unconsciously
fill in the blanks or bridge gaps in the evidence to draw the inference the
Crown seeks:
Villaroman
at para. 26. Or, in other words, jumping
to unwarranted conclusions in circumstantial cases:
Villaroman
at paras. 2627.
The jury instruction regarding circumstantial evidence is given in order to
alert it to the concerns regarding the path of reasoning in relation to drawing
inferences from circumstantial evidence: at para. 29.

[39]

In
Villaroman
, Cromwell J., writing for the Court, examined the applicable
reasoning when there is an absence of evidence raised to support an alternative
theory to guilt, offering the following guidance at para. 36:

[36]      I agree with the respondents position that a
reasonable doubt, or theory alternative to guilt, is not rendered speculative
by the mere fact that it arises from a lack of evidence. As stated by this
Court in
Lifchus
, a reasonable doubt is a doubt based on reason and
common sense which must be logically based upon the evidence or
lack of
evidence
: para. 30 (emphasis added). A certain gap in the evidence
may result in inferences other than guilt.
But those inferences must be
reasonable given the evidence and the absence of evidence, assessed logically,
and in light of human experience and common sense
.



[38]      Of course, the line between a plausible theory
and speculation is not always easy to draw. But the basic question is whether
the circumstantial evidence, viewed logically and in light of human experience,
is reasonably capable of supporting an inference other than that the accused is
guilty.

[Emphasis added.]

[40]

Finally, the Court identified useful statements of the principle:

[40]      The first is from an old Australian case,
Martin
v. Osborne
(1936), 55 C.L.R. 367 (H.C.), at p. 375:

In the inculpation of an accused
person the evidentiary circumstances must bear no other
reasonable
explanation. This means that,
according to the common course of human
affairs, the degree of probability that the occurrence of the facts proved
would be accompanied by the occurrence of the fact to be proved is so high that
the contrary cannot reasonably be supposed
.

...

[42]      The second is from
R. v. Dipnarine
, 2014
ABCA 328, 584 A.R. 138, at paras. 22 and 2425. The court stated that
[c]ircumstantial evidence does not have to totally exclude other conceivable
inferences; that the trier of fact should not act on alternative
interpretations of the circumstances that it considers to be unreasonable; and
that alternative inferences must be reasonable, not just possible.

[Emphasis added by Cromwell J.]

[41]

I now turn to the application of these principles in the context of the
appeal issues.

Did the trial judge incorrectly apply the approach to circumstantial
evidence and fill in the gaps and blanks in the evidence?

[42]

The trial judge concluded that Mr. Camille stabbed Mr. Adolph.
The question is whether there was another reasonable inference available on the
evidence, namely, that Mr. Adolph stabbed himself, either intentionally or
accidentally. Mr. Camille submits that the evidence relied on by the trial
judge could not lead her to only one reasonable inference. The evidence of how Mr. Adolph
died was circumstantial, and by concluding that it was Mr. Camille who
struck the fatal blow, the trial judge improperly filled in the gaps of the
evidence.

[43]

The Crown has summarized the evidence that was available to the trial
judge to rest her conclusion. It is convenient to set it out here:


The following are
the trial judges relevant findings of fact:

·

Mr. Adolph died as a result
of a stab wound to his abdomen;

·

Mr. Adolph and the appellant
were alone and together in their motel room at the time of the stabbing and
until Mr. Adolph died of his wound;

·

Emergency personnel found
Mr. Adolph lying across one of the beds with the lower portion of his legs
hanging over the bed to the floor;

·

Mr. Adolphs body and head
were covered by a blanket;

·

A blood stain on the blanket under
Mr. Adolphs left side was the only blood found in the room or in the
vicinity of the room;

·

Close to a litre of blood
accumulated in Mr. Adolphs abdominal cavity, in part because the wound
was plugged by some fat tissue;

·

At the time of his death,
Mr. Adolph had a blood alcohol concentration of 400 mg% and analysis
indicated that he had not consumed alcohol in the preceding 30 minutes;

·

A concentration of 400 mg% is
associated with symptoms ranging from gross muscular incoordination to
unconsciousness to death;

·

Mr. Adolph was obviously
heavily intoxicated when he went to the office at 6:15 a.m., as demonstrated by
his stumbling and staggering while walking;

·

The knife that caused the wound
was the one found in the nightstand drawer;

·

The knife was found in the
nightstand drawer under a pair of eyeglasses. The drawer contained personal
items but no other kitchenware; and

·

Although Dr. Steele acknowledged that
Mr. Adolph could have walked with his wound, the limited external
bleeding, the nature and location of that bleeding, and the lack of blood
elsewhere in the room led Dr. Steele to conclude that Mr. Adolph was
lying down when he was stabbed.

[References
omitted.]

[44]

In her analysis, the trial judge reviewed the evidence relied on by the
Crown, which was broken down into four areas: scene evidence, DNA evidence,
expert evidence and video evidence. Much of the evidence addressed whether a
third-party had committed the killinga theory abandoned on appeal.

[45]

The trial judge did not, as argued by Mr. Camille, find that this
evidence supported an inference of guilt before considering the evidence that
would permit an inference inconsistent with Mr. Camilles guilt.

[46]

Rather, she examined the evidence advanced to support the alternative
theory, and concluded that neither accidental nor deliberate self-harm by Mr. Adolph
were reasonable inferences to draw.

[47]

She then turned to assess the whole of the evidence to determine whether
the Crown had proved its case beyond a reasonable doubt. She considered
Villaroman
,
and was alive to the correct approach to circumstantial evidence. Setting aside
the third-party perpetrator, there were two other theories put forward. One was
reasonable, one was not. As noted in
Villaroman
, at para. 42, the
circumstantial evidence does not have to totally exclude other conceivable
inferences. Alternative inferences, however, must be reasonable, not just
possible.

[48]

There was, in my view, strong evidence supporting the conclusion that Mr. Camille
stabbed Mr. Adolph: Mr. Adolph was most likely lying down when he was
stabbed, he would have died within minutes, not hours, he likely did not walk
after being stabbed, yet the knife was found in a nightstand drawer, neatly
tucked under a pair of glasses. If Mr. Adolph had stabbed himself, the
knife would most likely have fallen to the ground. He would not have had the
ability to place it in the nightstand. There is no evidence supporting a
contention that Mr. Adolph stabbed himself, and Mr. Camille put the
knife away. It also makes no sense that Mr. Camille would find Mr. Adolph
dead, but carefully place the knife in the nightstand drawer.

[49]

The trial judge did not fill in the gaps or blanks in the evidence.
The facts she found, and the reasoning she applied fully supports her
conclusion that the only reasonable inference was that Mr. Camille stabbed
Mr. Adolph.

[50]

In light of the foregoing, I would not accede to this ground of appeal.

Did the trial judge err in drawing inferences in the absence of expert
evidence?

[51]

Mr. Camille argued that the trial judge improperly relied on common
sense when assessing the pain response of a highly intoxicated person. The
Crown, in its factum, agreed:

46.       While finding the appellants theory to be
implausible, the trial judge commented on a persons pain response. She
reasonably applied common sense to say that a person would generally respond to
a knife accidentally breaking their skin by pulling the knife back rather than
plunging it in to a depth of two to three inches. However, the trial judge went
on to consider how Mr. Adolphs level of impairment may have affected this
pain response.

47.       The appellant chose not to elicit evidence of his
alternate theory from the toxicologist through cross-examination. Accordingly,
there was no expert evidence before the trial judge on the issue of how
impairment would affect a persons pain response and reflexes in reaction to
that pain response. In the absence of such expert evidence, the trial judges
consideration of the issue should not have been a part of her reasoning to reject
the alternate inference.

[References omitted.]

[52]

A careful review of the trial judges reasons does not, in my opinion,
reflect such an error. The defence argued that Mr. Adolph may have been
trying to use the knife to manipulate the Minecraft toy that was found by the
pathologist in the cuff of his pajama bottoms. He submitted that the knife could
have slipped and caused the wound, given his high state of intoxication. In
response to that argument, the trial judge said this, at para. 78 of her
reasons:

[78]      In ordinary
circumstances, a suggestion that a person could accidentally stab themselves to
a depth of between two and three inches with an ordinary kitchen knife would
run markedly counter to common sense and experience.  The natural human reflex
and response to pain would intervene with the initial penetration and would
cause the person to quickly stop it.

[53]

This observation is well-within the confines of human experience and
common sense. She then correctly framed the question, and evaluated the
suggested inference against the backdrop of how intoxicated the parties were,
or likely were, at the relevant time:

[79]      The question is whether
the suggested inference is a reasonable one in light of the evidence of Mr. Adolphs
extreme intoxication, coupled with the likelihood (based on the number and
location of empty bottles in the room) that Mr. Camille too was very
intoxicated and potentially unaware or Mr. Adolphs plight or unable to
assist.

[54]

The trial judge (at para. 80) was alive to the fact that there was
no expert evidence addressing the effect of extreme intoxication on reflexes
or reactions to pain or other signals of damage to the body. She did not rely
on Mr. Adolphs abilityor lack thereofto assess pain as part of her
reasoning to conclude that he did not accidentally stab himself.

[55]

Instead, she reviewed the evidence tendered that set out general
symptoms of a person as highly intoxicated as Mr. Adolph, relied on the
extent of the wound, and concluded (at para. 81) that it was far from
obvious that a person using the knife to fiddle with something like the
Minecraft key chain could accidentally cause the type of wound Mr. Adolph
sustained.

[56]

In my view, the judge did not err.

Did the trial judge ignore logical inferences from the evidence

[57]

Mr. Camille says that the trial judge ignored accidental and
deliberate self‑harm as logical inferences which were available on the
evidence.

[58]

This argument essentially repeats what was made at trial. The trial
judge was fully aware of the alternate theories presented by the defence. She
analyzed the evidence that supported the Crowns theory and the alternate
theories. She concluded that the alternate theory was not a reasonable
inference that she could draw from the evidence, and that the Crown had proved
that Mr. Camille struck the blow that caused Mr. Adolphs death.

[59]

I would not give effect to this argument.

Unreasonable
verdict

[60]

In
Villaroman
, the Court articulated the test for assessing the
reasonableness of a verdict based on circumstantial evidence at para. 55:

[55]      A
verdict is reasonable if it is one that a properly instructed jury acting
judicially could reasonably have rendered:
R. v. Biniaris
, 2000 SCC 15,
[2000] 1 S.C.R. 381. Applying this standard requires the appellate court to re‑examine
and to some extent reweigh and consider the effect of the evidence:
R. v.
Yebes
, [1987] 2 S.C.R. 168, at p. 186. This limited weighing of the
evidence on appeal must be done in light of the standard of proof in a criminal
case. Where the Crowns case depends on circumstantial evidence, the question
becomes whether the trier of fact, acting judicially, could reasonably be
satisfied that the accuseds guilt was the only reasonable conclusion available
on the totality of the evidence:
Yebes
, at p. 186;
R. v. Mars
(2006), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4;
R. v. Liu
(1989), 95 A.R. 201 (C.A.), at para. 13;
R. v. S.L.R.
, 2003 ABCA
148;
R. v. Cardinal
(1990), 106 A.R. 91 (C.A.);
R. v. Kaysaywaysemat
(1992), 97 Sask. R. 66 (C.A.), at paras. 28 and 31.

[61]

The only live issue on appeal is whether Mr. Camille stabbed Mr. Adolph.
Although there was no direct evidence on the point, it is my view that the
circumstantial evidence set out above, and considered as a whole, supported the
trial judges conclusion that Mr. Camille had struck the blow.

[62]

In applying the question of whether the trier of fact, acting
judicially, could reasonably be satisfied that the accuseds guilt was the only
reasonable conclusion available on the totality of the evidence, the answer is
yes.

Conclusion

[63]

The trial judges reasons are not to be parsed with a scalpel, but read
as a whole, and in the context of the evidence, the issues and arguments at
trial, together with an appreciation of the purposes or functions for which
they are delivered:
Villaroman
at para. 15.

[64]

In my view, the trial judges reasons, when read as a whole, do not
contain any errors, and the verdict was reasonable and supported by the
evidence.

[65]

I would dismiss the appeal.

The Honourable Madam Justice Bennett

I AGREE:

The
Honourable Mr. Justice Harris

I AGREE:

The
Honourable Mr. Justice Goepel


