



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thomas, 2018 ONCA 694

DATE: 20180823

DOCKET: C61172

Doherty, Pepall and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Thomas

Appellant

Najma Jamaldin and Paul Genua, for the appellant

Alex Alvaro, for the respondent

Heard: June 7, 2018

On appeal from the
    conviction entered on March 13, 2015 and sentence imposed on July 15, 2015 by Justice
    David A. Broad of the Superior Court of Justice, sitting with a jury.

Nordheimer J.A.:

[1]

The appellant was convicted of second degree murder after a ten week
    trial.  He was sentenced to life imprisonment with no eligibility for parole
    for a period of 16 years.  He appeals both his conviction and his sentence.

[2]

Multiple grounds of appeal are advanced.  Unfortunately, they are not
    identified with the clarity one would expect.  As best as I can determine, the
    grounds are:

(i)

the admissibility of two statements made by the appellant;

(ii)

the admissibility of after the fact conduct evidence;

(iii)

the admissibility of prior discreditable conduct evidence;

(iv)

the admissibility of evidence improperly seized and held pursuant to a
    search warrant;

(v)

the asserted impropriety of Crown counsels closing address;

(vi)

errors in the jury charge; and

(vii)

unreasonable
    verdict.

Errors are also alleged with respect to the sentence
    imposed.

[3]

In my view, the most serious challenge relates to certain aspects of the
    jury charge.  I will therefore begin my consideration of the appeal with that
    challenge.  As will become apparent, once that challenge is addressed, the
    other grounds of appeal can be dealt with more succinctly.

I:

Background

The case for the prosecution

[4]

The appellant was charged with the second degree murder of his common
    law spouse, D.B.  The murder was alleged to have occurred in the early morning
    hours on January 1, 2007 in Waterloo, Ontario.

[5]

It was not until April 17, 2007, that a man, walking his dog, discovered
    D.B.s badly decomposed, unclothed body in an area that was part of the flood
    plain of the Grand River in southeast Kitchener, Ontario.  The Crowns theory
    was that the appellant had found D.B. at a bar with another man on New Years
    Eve.  Motivated by hostility, anger, jealousy, and feelings of betrayal, he
    killed her and then drove her body in his car and dumped it in the river.  D.B.
    had not been seen by any known person after the early morning hours of January
    1, 2007.

[6]

D.B. was an alcoholic who had a history of disappearing as a result of
    her drinking.  She would often go on benders for three to five days.  Consequently,
    D.B. was not reported as missing until January 15, 2007.  The police commenced
    an investigation.  It appears that the police quickly focussed on the appellant
    as a person of interest in their investigation.

[7]

On January 24, 2007, the police executed a search warrant at the appellants
    apartment.  He was not home.  While the search took place, the police conducted
    surveillance on the appellant.  They observed the appellant drive toward his
    apartment building, but when he saw the police presence, he drove instead to
    Sunnydale Place, a little more than a kilometre away.  He parked his vehicle in
    a parking spot behind some townhouses and walked away.  The appellant
    eventually returned to his vehicle more than three hours later.

[8]

On January 31, 2007, the police took possession of the appellants
    vehicle. They found transfer blood stains on the front passenger side of the
    vehicle.  Blood stains were also found on the floorboard and running board
    beneath the right passenger door.  Areas within the passenger compartment
    tested positive for human blood, even though it was not visible.  These blood
    stains had a wipe appearance to them, suggesting that there had been an
    attempt to clean up the blood.  It was agreed at trial that the blood found was
    that of D.B., as was a hair embedded in a blood stain on the inside plastic
    trim.

[9]

A forensic pathologist conducted an autopsy.  He was unable to determine
    a cause of death because of the advanced state of decomposition.  The forensic
    pathologist concluded that the body had been submerged in water for at least a
    month.  The pathologist could not say when D.B. had died, but the condition of
    the body was consistent with her disappearance on New Years Day.  There were
    no fractures of the bones in her neck, but the forensic pathologist gave
    evidence that, in his experience, about 70% of manual strangulations result in
    no bone fractures.  Thus, he could not rule out application of force to the
    neck.  There was no evidence of self-inflicted injuries.  Nevertheless, the
    pathologist was unable to rule out suicide as the manner of death.  The forensic
    pathologist also could not rule out drowning, because D.B. was found near the
    water.  The forensic pathologist acknowledged that D.B. could have entered the
    water by herself.

[10]

The
    forensic pathologist also observed many rib fractures.  Haemorrhaging was
    associated with the rib fractures on her left side.  Those fractures likely
    occurred peri-mortem  around the time of death  either before, at the time,
    or shortly after death.  The fractures could have been caused by the
    application of force from a person but they also could have been caused by
    contact with objects.  There were also rib fractures on the right side but no
    haemorrhaging was associated with those fractures.  They likely occurred
    post-mortem, that is, after death.

[11]

The
    appellant was not arrested until July 13, 2011.  At the time of his arrest, he
    told the police that the last time he saw D.B. was early on New Years Day 2007.
     He said that they left together after spending time at a bar.  On their way
    home, they had an argument.  D.B. walked back towards the bar.  The appellant
    went home.  He said he never saw D.B. again.  The appellant denied that D.B.
    went back to his apartment with him.

[12]

During
    the trial, the jury heard a great deal of evidence regarding the relationship
    between the appellant and D.B., including many instances of violence by the
    appellant towards her.  I summarize that evidence as follows:

1.

A diary along with letters written by D.B.  The diary entries described
    repeated physical and verbal abuse that D.B. had suffered at the hands of the appellant.
     In the letters, D.B. discussed the appellants drinking, the fact that he was
    often angry, and that he beat her.  D.B. referred to frequent death threats
    from the appellant, including his threat to kill her and dump her body out in
    the woods.

2.

An admission in 2005 to a hospital in Kitchener.  D.B.s blood ethanol
    level, approximately two hours after admission, was described as dangerously
    high.  D.B. told hospital staff that the appellant sat on her chest and
    strangled her, telling her he wanted her dead.  She said he repeatedly kicked
    her in her right side and punched her in the back.  He gave her a back hand
    across the face.  D.B. had suffered a fractured nasal bone and eye contusion.  She
    had bruises on her neck.  D.B. reported having previously been assaulted by the
    appellant.

3.

On November 9, 2005, the appellant entered a guilty plea to a count of
    assault causing bodily harm relating to D.B.  He accepted as substantially
    correct the facts read into the record.  Those facts included an allegation that
    he choked D.B. to unconsciousness, while yelling I want you dead, I want you
    dead, I want you dead.

4.

A male witness, D.H., who met D.B. in September or October 2005, gave
    evidence that D.B. had a black eye.  Her nose was swollen.  D.B. explained to D.H.
    that her boyfriend (the appellant) had hit her.

5.

Evidence from the appellants probation officer after the November 2005
    conviction.  The appellant told the probation officer that his relationship
    with D.B. started well but became rocky after she had an affair.  In describing
    his offence, the appellant acknowledged he had lost control.  The probation
    officer also noted that the appellant continued to blame D.B. and spoke of her infidelity,
    betrayals and lying.

6.

In the Spring of 2006, N.C. (who is female) met D.B. when they worked
    together.  N.C. testified that every time she saw D.B., she noticed some type
    of bruising on her. One day after they no longer worked together, D.B. unexpectedly
    came to N.C.s door, crying and shaking.  D.B. told N.C. that the appellant had
    been hitting her again.  D.B. was bleeding from her nose and from a small cut
    to her lip.  The lower part of her face and her shirt were covered in blood.  The
    left side of her face was red from what appeared to be a slap.  Her neck had
    red marks on both sides, shaped like fingers, as if someone had grabbed her. N.C.
    said that D.B. said that the appellant had tried to choke her.

7.

D.B. stayed with N.C. for a period of time.  During her stay, N.C. testified
    that she saw other bruises on D.B.s body, on her back, and on her ribs.  She
    had a scar on her upper thigh.  D.B. told N.C. that the appellant caused those
    injuries and had stabbed her thigh with a knife.

8.

One evening, the appellant, intoxicated, came to N.C.s apartment door.  N.C.s
    husband opened the door half-way and told the appellant that D.B. did not want
    to see him.  When the husband tried to close the door, the appellant placed his
    foot in the way.  He was getting angrier by the minute.  The appellant tried
    to force his way in but N.C. pushed the appellant into the hallway and locked
    the apartment door.

9.

The next time N.C. saw D.B. was sometime during the summer of 2006.  She
    testified that D.B. was sitting on the steps of her building crying.  D.B. told
    N.C. that the appellant was hitting her again.

10.

D.B.s mother described her daughter as an alcoholic, particularly in
    the last two years of her life.  D.B. came to live with her mother in July
    2006.  She testified that D.B. appeared without advance notice and looked
    terrified.  She had a bruise on her arm and on her neck.  D.B. told her
    mother that the appellant was continually beating her and that he had threatened
    her life.  D.B. went out on the weekend but, when she returned, she had
    bruises, a black eye, and a split lip. She was also intoxicated.

11.

On December 23, 2006, D.B. showed up at D.H.s apartment.  She had a
    black eye and she was very upset. She told D.H. that the appellant had hit her
    again.  She stayed until Christmas Day, when she left to return home.  D.B.
    told D.H. that she would be back that evening.  She did not return, however,
    until December 29.  When she did, her face was bruised.  She had a line on her
    left cheek approximately two inches long and three-quarters of an inch wide.  D.B.
    said that the appellant had hit her again.

[13]

In
    terms of the events immediately prior to her disappearance, the evidence was
    that on the evening of New Years Eve 2006, D.B. and D.H. went to a bar.  The
    appellant came to the bar and looked in the window.  He then entered the bar
    and was belligerent.  One witness in the bar testified that, while D.H. and D.B.
    were dancing, the appellant gestured aggressively toward D.B., calling her to
    leave with him.  Another witness testified that a man entered the bar and
    yelled at D.B.  He said, Youre supposed to be home with me, youre supposed
    to be my wife, and Im supposed to be your husband.  The appellant was rude,
    scary, and loud.  Yet another witness testified that the appellant was not
    happy when he entered the bar.  He grabbed D.B.s arm between the shoulder and
    the elbow forcefully, as if to say youre coming with me.

[14]

At
    the request of the bars owner, the appellant left.  He later returned and
    apologized, then sat beside D.B.  The two spoke calmly.  When they went outside
    for a smoke, D.H. saw them hugging.  At some point, D.H. confronted the appellant
    about beating D.B.  The appellant responded calmly that it was the whiskey.  D.B.
    had been drinking, but by midnight she was still able to walk without
    difficulty.  The appellant appeared sober.  D.B. and the appellant left the
    restaurant together.  D.H. never saw or heard from D.B. again.

[15]

After
    the disappearance of D.B., the appellant made a variety of comments, at
    different times, regarding her disappearance.  I summarize those instances as
    follows:

1.

The appellant called J.B. (D.B.s sister) around noon on New Years Day
    2007.  He told her he had seen D.B. at a bar.  The appellant said that he did
    not speak to D.B.

2.

The appellant called J.B. again on January 17, 2007, upset that she and
    D.B.s mother had called the police.  The appellant was angry, loud, and
    rambling.  He said, How dare they call the police on me.

3.

The appellant and J.B. spoke again on January 26, 2007.  He was still
    angry.  J.B. told the appellant that, if he had killed D.B., she would kill him
    herself.  The appellant said nothing in response.

4.

The appellant spoke to D.B.s mother in the New Year.  He told her that he
    had seen D.B. at the bar on New Years Eve but that he had left her alone.

5.

On or around January 17, 2007, the appellant called D.B.s mother,
    irate, and asked her why she had called the police.  The appellant told her
    to stay the fuck out of it, to mind her own business, and to let the police
    do their job.  The appellant called again a few days later, crying and telling
    her he loved D.B. and did not know where she was.

6.

The officer who was investigating the disappearance of D.B. left his
    contact information under the door of the appellants apartment.  On January
    17, 2007, the appellant called the officer, sounding excited and nervous.  He
    told the officer that he was D.B.s common law boyfriend and that he had been
    jailed for assaulting her.  He and D.B. had been seeing each other with the
    permission of the probation officer.  They were last together on New Years
    Eve, drinking heavily.  She was going to go home with him, but she changed her
    mind.  She was flirting with three other men.  They had an argument and the
    appellant went home.

7.

Between January 15 and 26, 2007, the appellant worked with L.B.  The
    appellant told L.B. that on New Years, he and his girlfriend (D.B.) had gotten
    into an argument over drinks and she had stormed out.  He had not seen her
    since.  The appellant later told L.B. that his girlfriend had contacted him by
    telephone on and off after New Years.

The jury charge

[16]

The
    trial judge began his jury charge with standard instructions on matters such as
    the importance of their duties as jurors; their obligation to find the facts in
    the case; their obligation to abide by the rules of law set forth by the trial
    judge; that their recollection of the evidence was what mattered; and that they
    were obliged to view the evidence objectively.  The standard instructions
    regarding the burden of proof and the presumption of innocence were given.  The
    standard instruction on circumstantial and direct evidence followed.

[17]

The
    trial judge then dealt with what he characterized as after-the-fact conduct,
    specifically, the various statements that the appellant made after D.B.s
    disappearance, which the Crown contended were false.  The trial judge reviewed
    seven such instances.

[18]

The
    trial judge moved from that after-the-fact evidence to the evidence regarding
    the relationship between the appellant and D.B.  The trial judge continued his
    charge over the next 12 pages or so by referring to the evidence of the
    instances of abusive and violent behaviour between the appellant and D.B., as I
    have largely set out above.  The trial judge then concluded this topic by
    saying:

This evidence of abusive behaviour goes to the nature of the
    relationship between [D.B.] and Mr. Thomas and to the issues of
animus
and ill will, and motive. If you conclude that these other acts of abuse and
    violence and controlling and threatening behaviour and the circumstances
    surrounding the death of [D.B.] are so connected that the same person did
    likely all of them, you may use the evidence of the other abusive and violent
    acts, along with the rest of the evidence, in deciding whether David Thomas committed
    the offence charged.

[19]

Next
    in his charge, the trial judge gave the standard instruction on the use that
    jurors could make of the notes that they had taken.  The trial judge then
    turned to the elements of the offence of second degree murder.  In dealing with
    the first element, that is, whether the appellant caused the death of D.B., the
    trial judge reviewed, in some detail, the evidence of the forensic pathologist
    regarding his findings from the autopsy.

[20]

The
    trial judge then returned to the evidence regarding the abuse, violence and
    controlling and threatening behaviour exhibited by the appellant that he
    repeated over the next six pages of his charge.  The trial judge moved on from
    that evidence to address the evidence relating to the events in the bar on New
    Years Eve 2006.  Thereafter, the trial judge returned to the various
    statements that the appellant made after the disappearance of D.B.  Lastly, on
    the first element of the offence, the trial judge addressed the blood evidence
    from the appellants vehicle.

[21]

The
    trial judge then proceeded to address the second and third elements of the
    offence relatively briefly.  This was understandable given that it was the
    first element of the offence that was critical to the determination of guilt. 
    As the trial judge pointed out, the evidence on that first element overlapped
    with the second and third elements.  The jury charge then concluded with the
    trial judges review of the Crowns and defences positions and then with some
    further standard instructions.

II: Challenge to the jury charge

[22]

As
    may be apparent from the above recitation of the facts, this was going to be a
    difficult case for the jury.  The case against the appellant was entirely
    circumstantial.  There was no evidence as to the cause of death.  The manner in
    which the trial judge instructed the jury on the elements of the offence, and
    how the evidence related to each of those elements, was therefore of particular
    importance in light of the approach that the jury had to properly take when deciding
    a circumstantial evidence case.

(a) t
he jury
    instruction on cause of death

[23]

Given
    the facts of this case, as the first step to determining guilt, the jury had to
    be satisfied, beyond a reasonable doubt, that D.B. was killed, as opposed to
    her death being the result of suicide, or misadventure, or the cause simply
    being uncertain or undetermined.

[24]

The
    trial judge started his review of the elements of the offence with the correct
    statement that the jury had to be satisfied beyond a reasonable doubt that the appellant
    caused the death of D.B.  While, in my view, it might have been preferable
    for the trial judge to make the cause of death, as opposed to the identity of
    the killer, a separate and clearer question for the jury to determine, the fact
    is that the jury was instructed to consider the cause of death directly. By
    telling the jury that they had to be satisfied that the appellant caused the
    death of D.B., it would be clear to the jury that, if they concluded that D.B.
    met her death, either at her own hands or by some unfortunate event, they had
    to find the appellant not guilty.

[25]

This
    result was reinforced when the trial judge told the jury:

Because the evidence related to whether [D.B.s] death resulted
    from an assault is entirely circumstantial and because the identity of Mr.
    Thomas as the person who caused the death by the application of force is an
    essential element requiring proof beyond a reasonable doubt, I remind you that,
    to the extent that you rely on the circumstantial evidence
you would have to
    be satisfied that an assault occurred which led to or contributed to [D.B.s]
    death
and that the identification of Mr. Thomas as the killer is the only
    rational inference arising from all of the evidence. [Emphasis added.]

[26]

In
    this instruction, the jury was expressly told that, in order to find the
    appellant guilty, they had to be satisfied that an assault occurred which led
    to or contributed to [D.B.s] death and that that was the only rational
    inference arising from all of the evidence.  If the jury concluded that D.B.s
    death was the result of suicide or misadventure or, more importantly, if they
    could not decide on the cause of death, then the jury would have to find the
    appellant not guilty.

[27]

I
    appreciate the appellants point that the volume of bad character evidence, that
    the trial judge allowed into evidence, could be fairly characterized as a
    relentless depiction of [the appellant] as a bad person.  As a result, this
    evidence had the very real potential of so prejudicing the appellant in the
    eyes of the jury that they would immediately leap to a verdict of guilty,
    unless they were very carefully instructed on the use to which they could put
    this evidence.

[28]

I
    pause at this juncture to note that it was within the discretion of the trial judge
    to admit all of this evidence.  His decision in that regard is entitled to
    deference from this court:
R. v. Stubbs
, 2013 ONCA 514, 300 C.C.C.
    (3d) 181, at para. 58.  I do not intend to revisit it, despite the appellants
    invitation to do so.  That said, I note that it was also open to the trial
    judge to restrict the scope of this evidence on the basis that permitting all
    of it to be admitted might overwhelm the jury and cast the appellant in such a
    bad light as to make it impossible for them to evaluate the ultimate question
    objectively.  As Rothstein J. said in
R. v. White
, 2011 SCC 13, [2011]
    1 S.C.R. 433, at para. 52:

The trial judges discretion to exclude evidence that is more
    prejudicial than probative recognizes that jurors will sometimes misuse relevant
    evidence.

(b) the proper role for the evidence

[29]

Having
    chosen to permit the Crown to lead all of this evidence, it was incumbent on
    the trial judge to ensure that it did not overwhelm the jury or distract them
    from the real issues that they had to decide.  It was imperative that this
    evidence be confined to its proper role and kept in its proper perspective.  As
    Rothstein J. also said in
White
, at para. 55:

Accordingly, courts have recognized that when leaving certain
    types of evidence with the jury, the trial judge should provide a caution that
    alerts the jury to the risks involved.

[30]

The
    trial judge provided those instructions in this case.  For example, the trial
    judge provided a mid-trial instruction to the jury as follows:

You have heard evidence that David Thomas pleaded guilty to the
    offence of assault causing bodily harm to [D.B.] on or about September 18,
    2005.  You have heard and may hear further evidence that David Thomas assaulted
    [D.B.] at other times during their relationship.  At the end of this trial I
    will tell you how that evidence may help you decide whether David Thomas
    committed the offence with which he is charged.  What you need to know now is
    how you must not use this evidence.  You must not conclude that David Thomas is
    guilty of the offence charged just because evidence has been given that he had
    been violent towards [D.B.] in the past.  You must not punish David Thomas for
    anything he has admitted to have done, or what others have said he has done in
    the past, by finding him guilty of the offence charged.

[31]

Further,
    in his jury charge, the trial judge told the jury:

Now, you are trying David Thomas on the charge of second-degree
    murder in the death of [D.B.].  You are not trying him for any other conduct. 
    You have heard evidence that David Thomas was abusive of, and committed acts of
    violence, against [D.B.], exhibited controlling behavior towards her and made
    threats against her, or is alleged to have done these things.  Be careful not
    to jump to the conclusion that just because David Thomas was violent or abusive
    towards [D.B.] in the past, he must have done an act that led to her death.

[32]

And
    later in his charge, the trial judge said:

If you conclude that David Thomas did the other abusive and
    violent things in the past, you must not use the evidence of that conduct to
    conclude or help you conclude that David Thomas is a person of general bad
    character or disposition or who likely committed the offence charged because of
    that general bad character.

Further, if you conclude that David Thomas did the other
    violent and abusive things in the past, you must not punish David Thomas for
    that conduct by finding him guilty of the offence charged simply because he did
    those things.

(c) the similar act instruction

[33]

All
    of that said, there is one area in the trial judges instructions that is
    problematic.  It is the instruction that he gave, more than once, and that reads
    like a similar act (or similar fact) instruction.  I have set out one instance
    of that instruction in para. 18 above.  Such an instruction had no place in a
    jury charge for this offence in these circumstances.  The potential probative
    value of the appellants abusive and violent conduct lay not in the
    connection between that conduct and the circumstances of D.B.s death, but in
    the jurys willingness to infer animus and motive from that conduct.  The trial
    judge properly instructed the jury on their use of motive and animus in other
    portions of his charge.

[34]

It
    is not clear to me why the trial judge made these references in his jury
    charge.  However, in the context of the charge as a whole, I do not believe
    that they would have misled the jury or would have caused them to jump to a
    conclusion of guilt.  The trial judge properly outlined the elements of the
    offence of second degree murder.  As I have already noted, he made it clear to
    the jury that, in order to find the appellant guilty, they had to be satisfied
    beyond a reasonable doubt that the appellant caused D.B.s death.  The jury was
    also instructed, both by way of a mid-trial instruction and in the final
    charge, that they should not use the bad character evidence to conclude that,
    because the appellant was abusive towards D.B. in the past, he must have caused
    her death.  The jury would have been clear with respect to the prohibition
    against engaging in such reasoning.

[35]

In
    addition, this evidence was relevant to the issue of animus or motive.  It was
    evidence that the jury could consider on that issue and thus was properly
    before them in determining whether D.B. had been killed and, if so, whether the
    appellant was the person who killed her.  I note, in passing on this point,
    that if this case was one where it was clear that D.B. had been killed, and the
    only issue was whether Mr. Thomas had killed her, no such limiting instruction
    on the use of the bad character evidence would have been necessary:
R. v.
    Krugel
(2000), 143 C.C.C. (3d) 367 (Ont. C.A.);
R. v. Merz
(1999),
    46 O.R. (3d) 161 (C.A.).  As Doherty J.A. said in
Merz
at para. 59:

The evidence of the threats made by the appellant was evidence
    of motive which, in turn, constituted circumstantial evidence of identity and
    intent. I see no reason to warn the jury against using the evidence to infer
    propensity and hence to infer that the accused committed the crime when the
    more direct and powerful inference to be drawn from that evidence is that the
    accused had a motive to kill Ms. Murray. The trial judge properly instructed
    the jury as to how they could use evidence of motive. The limiting instruction
    normally given when evidence of prior bad acts by the accused is placed before
    the jury would make no sense in the context of evidence of motive. An
    instruction like that called for by the appellant could only serve to confuse
    the jury.

[36]

Given
    the contents of the jury charge as a whole, and given that all of this evidence
    related solely to conduct between the appellant and D.B., I do not see that the
    similar act reference would have confused the jury or introduced an extraneous
    consideration to their deliberations.  The erroneous instruction was
    essentially superfluous to what the jury had already been properly instructed
    on and which they were entitled to take into account in reaching their
    conclusion.

(d) the appellants earlier guilty plea

[37]

Another
    aspect of the jury charge that raises a separate issue is the evidence of the appellants
    guilty plea on a charge of assault causing bodily harm relating to D.B., that
    included the fact that he had yelled I want you dead, I want you dead, I want
    you dead. This evidence was placed before the jury through the transcript of
    the guilty plea.  The entire transcript of the guilty plea was made an exhibit
    and Crown counsel read most, if not all, of the transcript to the jury.  The transcript
    showed that after the prosecutor read in a collection of facts, which included
    the above-noted threat, the appellants counsel said that those facts were
    accepted as being substantially correct.

[38]

Unfortunately,
    the trial judge did not give the jury any assistance in terms of what that
    qualification meant.  This was of some importance, in this case, given the fact
    that the threat was not a necessary element of the offence to which the
    appellant pleaded guilty, that is, assault causing bodily harm.  A plea of
    guilty to a criminal charge is an admission by the accused of all the legal
ingredients
necessary to constitute the crime charged and dispenses with the necessity of
    proof of the
ingredients
:
R. v. Lucas
(1983), 9 C.C.C. (3d) 71
    (Ont. C.A.), at p. 76., leave to appeal refused [1984] S.C.C.A. No. 389
    (emphasis added).  See also
R. v. Eizenga
, 2011 ONCA 113, 270 C.C.C.
    (3d) 168, at para. 43.

[39]

The
    threat was offered as evidence of a statement by the accused.  It was not an
    element of the offence underlying the guilty plea.  On the instant prosecution,
    the jury could only use the statement as evidence of motive to determine the
    guilt of the appellant if they first concluded that he made the threat.  In my
    view, the qualified admission by counsel that the facts were substantially
    correct did not provide a basis upon which a jury could infer that the
    appellant admitted that he made the threat.  Absent a clear admission that the
    threat was made, that part of the transcript of the guilty plea should not have
    been placed before the jury.  Alternatively, the trial judge ought to have
    instructed the jury that they could not infer that the appellant had accepted
    that he had made the threat, given the qualified nature of the admission.

[40]

All
    of that said, however, this was but one piece in a much larger picture of the
    nature of the relationship between the appellant and D.B.  Whether or not he made
    the threat did not undermine the thrust of all of the evidence that the jury
    heard in that regard, including evidence of similar threats at other times.  In
    addition, and as I shall discuss below, the jury was expressly warned against
    jumping to conclusions regarding the appellant based on this evidence.

(e) the blood in the appellants car

[41]

The
    appellant also complains about the trial judges reference to the evidence
    regarding D.B.s blood being found in the appellants car.  I am not persuaded
    that there was any error made by the manner in which the trial judge dealt with
    this evidence.  The trial judge carefully and thoroughly reviewed the evidence
    of the forensic pathologist.  He reviewed all of the evidence regarding the
    presence of blood and the evidence of cleanup.  The trial judge also told the
    jury that the blood could not be dated and reminded them of the possibility
    that the blood might have been deposited in the car on a previous occasion.  I
    do not see anything in the trial judges instructions to the jury on this
    evidence that would have misled them in any respect.

[42]

The
    appellant also complains about the manner in which the trial judge dealt with
    the evidence of the blood in the car when he came to review the Crowns position. 
    Crown counsel, in her closing submissions, advanced the theory that the
    appellant had killed D.B. and then driven her to the river in his car.  The
    Crown used the trace presence of D.B.s blood in the appellants car as support
    for this theory.

[43]

The
    trial judge accurately referred to the Crowns contention in summarizing the Crowns
    position.  The jury was well aware that the trial judge was doing exactly that,
    summarizing the Crowns position.  He was not suggesting that was the
    conclusion that the jury ought to reach nor that the Crowns view of the
    evidence was the only view.  I do not see any error in the manner in which the
    trial judge dealt with this issue.

(f) the jury instruction on circumstantial evidence

[44]

As
    I said earlier, this was an entirely circumstantial case.  Much has been
    written on the subject of the proper approach to circumstantial evidence.  Some
    view this area as confused.  That view caused the Supreme Court of Canada to
    attempt to provide clarification on this issue in their decision in
R. v.
    Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000.  Unfortunately, the trial
    judge did not have the benefit of the decision in
Villaroman
when he
    instructed the jury.  The validity of the appellants concerns in this regard
    have to be viewed with that reality in mind.

[45]

In
    this case, the trial judge gave the jury a standard instruction on what
    constitutes circumstantial evidence, namely, the drawing of inferences from
    proven facts.  A bit later, the trial judge told the jury:

However, before you base a verdict of guilty on circumstantial
    evidence, you must be satisfied beyond a reasonable doubt that the guilt of Mr.
    Thomas is the only rational verdict to be drawn from the whole of the evidence.

[46]

That
    is the standard and correct instruction on circumstantial evidence. 
    Importantly, it was not the only time that the trial judge gave the instruction
    to the jury.  In the course of dealing with the elements of the offence, and
    the evidence relating to those elements, the trial judge gave the instruction
    to which I referred in para. 25, above.

[47]

In
    addition, the trial judge concluded his instruction on the first element of the
    offence by saying the following:

As I explained earlier, the evidence led by the Crown to
    establish the guilt of Mr. Thomas is entirely circumstantial including the
    evidence respecting the manner of [D.B.s death. For you to draw the inference
    from the totality of the evidence that [D.B.s] death was a homicide and that
    her death was caused by an act of David Thomas, you must be satisfied that this
    inference is the only reasonable inference to be drawn from all of the
    evidence.

[48]

It
    is difficult to criticize the trial judges charge regarding circumstantial
    evidence when he repeatedly told the jury exactly how they should approach that
    evidence and, importantly, reminded them that guilt must be the only reasonable
    inference to be drawn from it.

[49]

I
    recognize the ever-present danger that a jury may have a tendency to jump to
    unwarranted conclusions when dealing with circumstantial evidence:
Villaroman
,
    at para. 29.  Jurors may also have a similar tendency to fill in evidentiary
    gaps, rather than treat those gaps as a reason to have a reasonable doubt as to
    guilt.  On that point, in
Villaroman
, Cromwell J., at para. 30,
    suggested that juries should be instructed in the following way:

It follows that in a case in which proof of one or more
    elements of the offence depends exclusively or largely on circumstantial
    evidence, it will generally be helpful to the jury to be cautioned about too
    readily drawing inferences of guilt.

[50]

Repeating
    that the trial judge did not have the benefit of the decision in
Villaroman
when he gave his instructions to the jury, nevertheless, in my view, the
    contents of his instructions achieved the desired purpose.

[51]

One
    other aspect of this issue deserves mention.  In her closing submissions, Crown
    counsel, on more than one occasion, told the jury that there was no evidence
    to support theories other than a homicide.  The trial judge repeated those
    assertions when he reviewed the Crowns closing submissions.  It is important, in
    a circumstantial evidence case, to instruct the jury that inferences consistent
    with innocence do not have to arise from proven facts.  If there are reasonable
    inferences available on the evidence that would allow for a conclusion other
    than guilt, then the jury is obliged to consider those possible inferences in
    determining whether the Crown has proved the offence beyond a reasonable
    doubt.  This is made clear in
Villaroman
, at para. 35.

[52]

While
    the trial judge did not instruct the jury specifically on this point, as I have
    already said, he instructed the jury on the proper use of circumstantial
    evidence on more than one occasion.  He also reminded the jury, on at least two
    occasions, that a reasonable doubt can arise from the evidence or the lack of
    evidence.  The latter reference invokes the same fundamental principle that
    underlies the point made in
Villaroman
to which I just referred.  I do
    not view the references made by Crown counsel, as summarized by the trial
    judge, as detracting from the force and effect of those instructions.

III: Other
    grounds of appeal

(a)

the appellants July 13,
    2011 statement to police

[53]

The
    appellant submits that the trial judge erred in permitting the Crown to adduce
    a portion of his July 13, 2011 statement to the police.  The appellant argues
    that the entire statement should have been excluded because it was tainted by
    an earlier statement of February 6, 2007 that the appellant gave to the police
    and which was ruled to be an involuntary statement.

[54]

The
    trial judge excluded the portion of the July 13, 2011 statement that occurred
    after the officer made reference to the February 6, 2007 statement but
    permitted the Crown to use the earlier portion of the statement that occurred
    prior to any reference to the February 6, 2007 statement.  I do not see any
    error in the manner in which the trial judge dealt with this issue.

(b)

the appellants statements
    to his probation officer

[55]

The
    appellant submits that the Crown should not have been permitted to call the
    appellants probation officer and elicit from her details that the appellant
    gave to her respecting the assault causing bodily harm conviction that involved
    D.B.  The appellant submits that the probation officer was a person in
    authority and thus the statements were not voluntary.  The appellant also
    submits, in essence, that a privilege attaches to the statements under the
Wigmore
principles.

[56]

I
    do not view it as necessary, in this case, to determine either of these
    contentions as they relate to the probation officer.  Even if the probation
    officers evidence had been excluded, there would have been no practical effect
    at trial.  The circumstances surrounding the assault causing bodily harm
    offence were already before the jury through the evidence of the guilty plea. 
    There was also a considerable body of other evidence detailing the nature of
    the relationship between the appellant and D.B.

[57]

That
    said, I would voice a note of caution on this issue.  It seems to me that there
    is certainly an argument to be made that a case-by-case privilege might well
    attach to communications between a convicted person and his/her probation
    officer, based on the principles discussed by the Supreme Court of Canada in
    cases such as
R. v. National Post
, [2010] 1 S.C.R. 477, at paras.
    50-69.  Pending any definitive ruling on the issue, the Crown would be
    well-advised to consider the wisdom of seeking to adduce such evidence in
    future trials.

(c)

over‑seized and
    over-held evidence

[58]

The
    appellant complains that the Crown was permitted to adduce evidence that was
    seized by the police pursuant to a search warrant.  The appellant says that
    items were seized that were not covered by the search warrant and that the
    police held items seized past the permitted time.

[59]

The
    trial judge dealt with these issues in a detailed ruling.  He concluded that,
    while the police seized items not detailed in the appendix to the ITO, they
    were still covered by the terms of the search warrant.  I do not see any error
    in that conclusion.  In terms of the over-holding, the trial judge assumed a
    breach of s. 8 of the
Canadian Charter of Rights and Freedoms

but
    declined to exclude the evidence under s. 24(2).

[60]

Like
    the trial judge, I do not need to determine whether the over-holding
    constituted a s. 8 breach because, assuming that it did, I do not see any error
    in the trial judges s. 24(2) conclusion.  He properly considered the principles
    from
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353.  I fail to see any
    error in his application of those principles.

(d)

the Crowns closing
    statement

[61]

The
    appellant says that the Crown acted improperly in her closing statement,
    particularly in respect to her reference to the failure of the appellant to provide
    more details when he made a voluntary statement to the police on January 17,
    2007.

[62]

The
    trial judge dealt with this issue directly in his instructions to the jury.  He
    made it very clear to the jury that the appellant had a right to silence and
    was not under any obligation to provide any information to the police. 
    Whatever problem might have been caused by the Crowns reference to this issue,
    it was fully covered by the instruction that the trial judge gave to the jury.

(e)

the jurys verdict was
    unreasonable

[63]

I
    need say very little on this ground of appeal.  The sole question is whether,
    on the whole of the evidence, the verdict is one that a properly instructed
    jury, acting judicially, could reasonably have rendered:
R. v. Sinclair
,
    2011 SCC 40, [2011] 3 S.C.R. 3, at para. 79. In my view, there is no question
    that a finding of guilt was a verdict that was open to the jury to reach on the
    evidence that was placed before them.

(f)  application of the curative proviso

[64]

In
    light of my conclusions on the various grounds of appeal, it is unnecessary to
    deal with the application of the curative proviso.

IV: The
    sentence appeal

[65]

The
    appellant appeals from the trial judges imposition of a 16 year parole
    ineligibility period.  I see no merit in this appeal.  The trial judge gave
    careful reasons for his conclusion regarding the period of parole ineligibility. 
    It was within the range established by earlier authorities and, I note, was
    less than 10 of the 12 jurors recommended.  I am satisfied that the period of
    parole ineligibility fixed by the trial judge is proportionate to the gravity
    of the appellant's offence and his degree of responsibility for having
    committed it:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    para. 53.  I do not consider it to be harsh or excessive or beyond the range of
    periods of parole ineligibility appropriate for offences of this nature.

V: Conclusion

[66]

For
    these reasons, I would dismiss the appeal.

Released: August 23, 2018 I.N.

I.V.B.
    Nordheimer J.A.

I
    agree. Doherty J.A.

I
    agree. S.E. Pepall J.A.


