



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wilson, 2019 ONCA 564

DATE: 20190704

DOCKET: C64104

Sharpe, Simmons and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Blake Wilson

Appellant

Dirk Derstine and Laura Remigio, for the appellant

Karen Papadopoulos, for the respondent

Heard: June 19, 2019

On appeal from the conviction entered and sentence
    imposed by Justice Robert A. Clark of the Superior Court of Justice, sitting with
    a jury, on April 21, 2016.

REASONS FOR DECISION

OVERVIEW

[1]

The deceased, a sex-trade worker, was found dead in her apartment on July
    13, 2013. Fires had been set in three separate locations in the apartment. The
    deceased had a fractured larynx and bruising on her neck and upper body. The
    appellants sperm was found in her mouth. Calls were traced from the
    appellants cell phone to her telephone the night before her death. The
    appellants phone had connected with hers again in the hours before her death, originating
    from the cell tower closest to her apartment. Security footage captured a man
    of the appellants general description arriving at the deceaseds apartment and
    then leaving shortly before firefighters arrived.

[2]

The theory of the Crown was that the appellant should be convicted of
    first degree murder on the basis that he had caused the death of the deceased
    by the application of force to her neck, while committing a sexual assault.

[3]

The principal defence at trial was identity. Defence counsel also
    submitted that a possible cause of death was heart disease. Further, even if
    the Crown had proven the appellant murdered the deceased, defence counsel
    argued the Crown had failed to prove the sexual activity was non-consensual. The
    appellant did not testify.

[4]

The jury returned a verdict of guilty for first degree murder and the
    trial judge sentenced the appellant to life imprisonment with 25 years of
    parole ineligibility.

[5]

The appellant appeals from his conviction.

FACTS

[6]

The deceased, a 72-year-old woman, suffered from mobility issues and
    worked in the sex trade. On July 13, 2013, at 1:12 p.m., firefighters were
    dispatched to her apartment. They found the unit full of smoke. When the smoke
    cleared, they found the deceased kneeling at the foot of her bed, face down.
    Her body was charred.

[7]

According to the fire investigator, fires had been set in her apartment
    in three different places. Sperm cells were found in the deceaseds mouth. That
    sample was later matched by DNA testing to the appellant. Other sperm samples
    were found in her vaginal cavity but not identified. The appellants phone
    records revealed that he had called the deceased several times in the day and
    hours preceding her death. In the hour and a half before the arrival of the
    firefighters, these calls had originated from the cell tower closest to the
    deceaseds apartment.

[8]

Security footage from the TTC and the deceaseds apartment building
    revealed an individual said to match the description of the appellant arriving
    at the deceaseds unit approximately an hour before the fires were set. The
    individual was then recorded leaving her floor minutes before the firefighters
    arrived. He was wearing a golf shirt belonging to the deceaseds roommate over
    his white t-shirt. The man was then caught on video surveillance in the Finch
    subway station. By that point he had removed the golf shirt and was back to
    wearing only his white t-shirt. He boarded a train at the Finch Station and
    took it southbound to the College Station, exiting toward College Park. Within
    five minutes of his exit, someone tried to withdraw $800 from the deceaseds
    bank account using her bank card at an ATM machine in College Park.

[9]

The autopsy revealed that the deceased had died prior to the fires being
    set. Before she died, she had suffered a fractured larynx, some associated bruising
    and multiple other bruises to the upper part of her body. Dr. Pollanen, the
    forensic pathologist who conducted the autopsy, was of the opinion that the
    cause of death was compression of the deceaseds neck, cutting off blood flow
    to her brain. He noted that the deceased did suffer from heart disease, but
    rejected that as the cause of death.

ISSUES

[10]

On
    appeal, the appellant no longer contests that he was the man captured on the
    video footage. This appeal raises four issues:

1.

Did the trial judge misapprehend the evidence of strangulation in his
    charge to the jury?

2.

Did the trial judge err in his instructions to the jury on the non-fatal
    injuries?

3.

Did the trial judge err by giving improper examples of circumstantial
    evidence to the jury?

4.

Did the trial judge err in his instructions to the jury on the
    post-offence conduct?

ANALYSIS

(1)

Did the trial judge misapprehend the evidence of strangulation?

[11]

The
    appellant submits that the trial judge misapprehended Dr. Pollanens evidence
    as to the cause of death and erred by repeatedly referring to the deceased as
    having been strangled. The appellant submits that Dr. Pollanens evidence
    does not support that characterization of the cause of death. The appellant argues
    that, while Dr. Pollanen testified that the cause of death was a neck
    compression, he also testified that he could find none of the usual features
    that would indicate manual strangulation or strangulation with a ligature or
    rope. Consequently, there was not enough evidence to determine the mechanism by
    which the neck compression occurred. The appellant submits that Dr. Pollanen
    should be taken to have agreed that the neck compression could have been caused
    by a fall onto an arm rest or the edge of another hard surface.

[12]

We
    disagree with the contention that the trial judge misapprehended Dr. Pollanens
    evidence. Dr. Pollanen was clear that in his opinion, the cause of death was
    neck compression, which is frequently caused by strangulation. He explained
    that death caused by neck compression is the result of sustained pressure
    around the neck that collapses the blood vessels and interrupts blood flow to
    the brain for long enough that the individual dies. While he could not indicate
    how the neck compression occurred with certainty, he referred to three examples
    of how it could have occurred  manual strangulation, ligature strangulation
    and carotid sleeper holds or chokeholds. A significant reason why Dr. Pollanen
    could not be more precise about the mechanism of neck compression was the
    damage the fire had caused to the deceaseds body.

[13]

While
    Dr. Pollanen agreed that in a hypothetical situation a person could suffer the
    larynx fracture exhibited by the deceased as the result of a fall or accidental
    application of force, he never agreed that a fall or accidental application of
    force constituted forms of neck compression. We agree with the respondent that
    a fair characterization of his evidence is that the larynx fracture was a
    marker of neck compression but not, in and of itself, a possible cause of
    death. We also agree that the fact that Dr. Pollanen could not opine with
    absolute certainty on the specific form of neck compression that caused the
    death did not bar the jury from finding on the basis of the evidence that the
    deceased was strangled.

[14]

The
    trial judges use of the terms strangle and strangulation did not deprive
    the appellant of a fair trial. To strangle is simply to squeeze or constrict
    the neck, whether by manual strangulation, ligature or chokehold. In other
    words, it is a common expression which, when fairly read and understood in the
    context of this case, the jury would have understood to simply mean neck
    compression.

[15]

Moreover,
    the trial judge clearly instructed the jury that they were the ultimate
    deciders of the facts and that although he might express opinions about the
    facts, the jury need not agree with him. He fully and fairly reviewed Dr. Pollanens
    evidence, including its two limitations: (a) that the larynx fracture could
    have been caused by a fall or the deceased hitting her neck on something hard;
    and (b) that the fire damage to the deceaseds body prevented a conclusive
    determination of the precise mechanism of neck compression.

[16]

He
    instructed the jury that to find the appellant guilty at least of manslaughter,
    they must be convinced beyond a reasonable doubt that the appellant intended
    to apply force to the deceaseds throat, (that is to say, intended to strangle
    her), so that any reasonable doubt as to whether that act was committed
    intentionally would have led to an acquittal.

(2)

Did the trial judge err in his instructions on the non-fatal injuries?

[17]

The
    appellant argues in his factum that trial judge erred in instructing the jury
    that it could not consider the non-fatal bruises and other injuries on the
    deceaseds body as supporting a conviction for manslaughter but could consider
    them as supporting a conviction for murder. The appellant argues that this
    effectively removed the possibility of a manslaughter conviction from the
    jurys consideration. The appellant says that the jury should have been
    instructed that the unlawful act giving rise to unlawful act manslaughter could
    have been an intentional punch or push that caused some or all of the injuries
    unrelated to the deceaseds neck and accidentally caused her to fall in such a
    way as to result in unintended neck compression. While the appellant did not
    abandon this ground of appeal, it was not advanced in oral argument.

[18]

In
    our view, it must be rejected.

[19]

This
    theory was never put to the jury by the appellants trial counsel, who decided
    to focus her submissions on what she argued were the weaknesses of the evidence
    going to identification and the cause of death rather than providing the jury
    with the choice of what might be considered the compromise verdict of
    manslaughter. Nor did defence counsel object to this aspect of the charge.
    Tactical decisions to allow an omission in a charge may be considered as a
    factor against finding that the charge was inadequate on appeal:
R. v.
    Luciano
, 2011 ONCA 89, 273 O.A.C. 273, at paras. 76-77;
R. v. Calnen
,
    2019 SCC 6, 430 D.L.R. (4th) 471, at para. 67.

[20]

In
    light of trial counsels approach, and the state of the evidence, the trial
    judge did not err in his instructions on unlawful act manslaughter. He
    explained to the jury that the unlawful act in unlawful act manslaughter must
    be causally related to the death. Dr. Pollanen testified that the cause of
    death was neck compression and drew a direct link between the deceaseds neck
    injuries and the cause of death. He made no such link to the other injuries of
    the deceased. In particular, as we have already noted, there was no evidence to
    support the contention that a push or fall could produce neck compression and
    no evidence that the fractured larynx was a possible cause of death.

(3)

Did the trial judge err by giving improper examples of circumstantial
    evidence?

[21]

The
    appellant submits that as the Crowns case was based on circumstantial
    evidence, the trial judges instructions to the jury regarding the drawing of
    inferences from circumstantial evidence were crucial to the jurys determination
    of these key issues.

[22]

The
    appellant acknowledges that the trial judge gave the jury a clear instruction
    on the use of circumstantial evidence that accurately tracked the Supreme Court
    of Canadas direction in
R. v. Griffin
,
2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33, and
R.
    v. Villaroman
,

2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30. The
    trial judge instructed the jury that because this case is based entirely on
    circumstantial evidence, you may convict the accused of first degree murder, or
    one of the two lesser and included offences I will discuss, only if his guilt
    of that offence is the only reasonable inference to be drawn on the whole of
    the evidence you accept.

[23]

However,
    the appellant takes issue with certain examples the trial judge used to
    illustrate how the jury might draw inferences from circumstantial evidence,
    arguing that they effectively watered down the
Griffin
/
Villaroman

instruction. In
    particular, the trial judge suggested that if you pay someone to deliver the
    paper and someone else to clear snow and when you wake up in the morning both
    tasks have been completed, you would be entitled to conclude that the people
    that you paid completed those tasks, not because that is the only possible
    conclusion, but because it is the only reasonable inference to draw in all the
    circumstances.

[24]

Although
    we find that examples along these lines are not particularly helpful and we
    discourage their use in future cases, the trial judge also provided other
    examples of how to draw inferences, ones with which the appellant takes no
    issue. He also specifically cautioned the jury that they were not to speculate when
    drawing inferences. Read in totality and along with all of the trial judges
    other instructions on how to draw inferences from circumstantial evidence, we
    are left in no doubt that the jury would have understood that an inference of
    guilt drawn from circumstantial evidence should be the only reasonable
    inference that such evidence permits:
Villaroman
, at para. 30.

[25]

We
    are not persuaded that the impugned examples undermined the appellants right
    to a fair trial or that when read in light of the charge as a whole, they could
    have led the jury to apply a lower standard to circumstantial evidence than that
    mandated by
Griffin
and
Villaroman
.

(4)

Did the trial judge err in his instructions on the post-offence conduct?

[26]

The
    appellant submits that trial judge erred in his instructions on the use that
    could be made of evidence of post-offence conduct.

[27]

There
    is no dispute that the evidence of post-offence conduct, including the setting
    of the fires and manner of flight, was relevant and admissible at trial. Defence
    counsel conceded that it could be probative of whether some type of unlawful
    act was committed.

[28]

The
    first error alleged by the appellant relates to the relevance of the
    post-offence conduct to whether the sexual encounter between the appellant and
    the deceased was consensual. While the parties were at odds as to when during
    the period the appellant was in the apartment the sexual activity took place,
    they agreed that the length of time available for sexual activity informed the
    issue of consent. The trial judge summarized those positions for the jury. The
    defence position was that the perpetrator was in the apartment for one hour and
    eight minutes, more than enough time for a consensual sexual act to have taken
    place. The Crown position was that the evidence supported a much shorter time
    frame.

[29]

The
    deceased received four telephone calls from numbers other than the appellants
    while the appellant was in her apartment. The final telephone call lasted 73
    seconds and ended approximately 39 minutes before the appellant left the
    apartment. The Crown maintained that the sexual activity occurred after the
    last call.

[30]

The
    trial judge instructed the jury that they may find that the 39 minutes was
    sufficient time to support a consensual sexual act and that it would not be
    unusual for a consensual sexual encounter to last much less time than that. The
    trial judge further instructed the jury that, on the other hand, the evidence
    was capable of supporting an inference that during that 39-minute window, the
    appellant had also engaged in other activity, such as setting fires, stealing
    the deceaseds bank card, and taking her roommates shirt. Because of all of
    those activities, the timeframe in which to engage in the sexual activity was
    actually much shorter than 39 minutes and could support an inference that the
    sexual encounter, or at least some part of it, was not consensual.

[31]

In
    light of the parties positions, we see no error in the trial judges approach
    on this issue.

[32]

The
    appellants second complaint is that the trial judge erred in instructing the
    jury that the post-offence conduct was relevant to determining whether the
    sexual assault was part of the same transaction or series of events as the
    murder. We do not agree.

[33]

The
    only route to first degree murder was through the commission of a sexual
    assault. The sexual assault and murder had to be part of the same transaction
    or series of events. The impugned instruction merely explained how the jury
    could use the post-offence conduct evidence to inform whether they were
    satisfied that connection had been made out. The timing issue and all of the
    events that were said to have taken place within the 39-minute window were
    relevant to that determination.

[34]

We
    note that trial counsel did not object to the aspects of the trial judges
    instruction on post-offence conduct relating to timing and its relevance to the
    issues of consent and whether the sexual assault was part of the same
    transaction as the murder.

[35]

In
    our view, the trial judge did not err in instructing the jury that they could
    consider the post-offence conduct and the timeframe in which they determined
    the events unfolded in assessing the issues of consent and whether the sexual
    assault and the murder were part of the same transaction. The use of the
    post-offence conduct in this manner was unusual and did not give rise to the
    usual danger about improperly inferring the accuseds level of intention from post-offence
    conduct. It was being used for a very different and distinct purpose, that of
    determining the manner in which events unfolded while the appellant was in the
    apartment. The events that occurred and the timeframe in which they occurred were
    directly relevant to the determination of two crucial issues. Therefore the
    post-offence conduct was directly relevant to both issues and was properly put before
    the jury on that basis.

[36]

While
    these instructions did place the evidence of post-offence conduct squarely
    before the jury, as we explain below, the trial judge gave an appropriate
    caution on the use of post-offence conduct to infer the appellants intent.

[37]

In
    the section of his charge dealing directly with post-offence conduct, the trial
    judge gave a standard caution that, with one exception we will discuss below,
    the jury was not to use evidence of post-offence conduct to decide as between
    the offences of manslaughter, second degree murder and first degree murder. The
    trial judge stated that it is no more likely that a person who commits a
    planned or intentional murder would do those things than it is that someone who
    killed a person unintentionally by means of an unlawful act would do the same
    thing because they are aware of a lesser form of criminal guilt.

[38]

The
    trial judge explained that, as an exception to this general rule that the
    post-offence conduct could not be used to determine whether the appellant had
    committed murder rather than manslaughter, it was open to the jury to conclude
    that he had set the fires to cover up evidence that would show that he had
    killed the deceased intentionally, such as evidence of the nature and extent of
    any injuries inflicted. The jury could thus use the post-offence conduct
    evidence in this limited way to decide as between murder and manslaughter, but
    not, as the trial judge explained, as between second and first degree murder.

[39]

The
    relevance of the post-mortem setting of the fires to intent for murder is
    supported by the case law. In
R. v. Teske
(2005)
,
202 O.A.C. 239 (C.A.), at paras. 85-88,
    this court held that it is open to a jury to draw the reasonable inference that
    an accused destroyed the body because he deliberately inflicted serious bodily
    harm likely to cause death and knows the victims wounds are inconsistent with
    a non-intentional cause of death. The Supreme Court also concluded in
Calnen
,
    at paras. 119-140, that the altering, concealing or destroying of evidence can
    be relevant to a determination of intent. It held that the existence of other
    plausible explanations for the after-the-fact conduct does not defeat its
    probative force and so long as conduct is more capable of supporting the
    inference sought than the alternative inferences, the inference that is
    ultimately to be made from it should be left to the trier of fact: paras.
    143-145.

[40]

Accordingly,
    we do not accept the submission that the trial judge erred in his treatment of
    the post-offence conduct evidence.

DISPOSITION

[41]

For
    these reasons, the appeal from conviction is dismissed.

Robert
    J. Sharpe J.A.

Janet
    Simmons J.A.

Fairburn
    J.A


