



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Tehrankari, 2012
    ONCA 718

DATE: 20121026

DOCKET: C50967

OConnor A.C.J.O., Weiler and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Allen Tehrankari

Appellant

Allen Tehrankari, acting in person

Joseph Di Luca, as
amicus curiae

Greg Skerkowski, for the respondent

Heard: September 11, 2012

On appeal from the conviction entered on March 13, 2009
    by Justice Colin McKinnon of the Superior Court of Justice, sitting with a
    jury.

Weiler J.A.:

A.

Overview

[1]

The appellant was convicted of the first degree murder of his
    sister-in-law, Ms. Barbara Galway.

[2]

The appellant is self-represented. He discharged his counsel at his
    first trial, which ended in a mistrial. The trial judge made arrangements for
    the appellant to receive assistance from
amicus
at his second trial. 
    On his behalf,
amicus
seeks a new trial on the basis that the trial
    judge erred in refusing to allow the jury to consider the appellants third
    party suspect defence and related grounds.  Even if the trial judge correctly
    ruled that the third party suspect defence was mere speculation,
amicus
submits that a new trial is required because of unfairness caused to the
    appellant by a limiting instruction given mid-trial by the trial judge.
    Specifically, the trial judge read to the jury portions of his ruling
    explaining why he had not allowed the appellants proposed third party defence
    to be put before them, including the following statement:

All of the evidence points to the accused and away from Patrick
    Galway [the third party suspect].

[3]

In addition, the appellant himself raises numerous grounds of appeal.

[4]

For the reasons that follow, I would agree with the trial judge that
    there was no air of reality to the third party suspect defence because there
    was no admissible evidence linking the third party suspect to Ms. Galways
    death. I would also dismiss the other grounds of appeal as I find them devoid
    of merit.  Accordingly, I would dismiss this appeal in its entirety.

B.

Evidentiary Background

[5]

The body of Ms. Galway was found on January 6, 2005, on a remote trail
    in Ottawa, burned beyond recognition.  She was identified by dental records on
    January 7, 2005.  The appellant was arrested that same day.

[6]

At the time of her death, Ms. Galway was separated from her husband of over
    twenty years, Patrick Galway, a real estate lawyer.  She and Mr. Galway had
    concluded a financial settlement and she was again working at his office. She
    was romantically involved with two other men, Josephus Crooy and James Gardiner.

(1)

The Crowns Evidence

[7]

The Crowns case linking the appellant to Ms. Galways death included
    the following evidence:

(1)

Between December 29, 2004 and December 31, 2004 the appellant called Ms.
    Galway over thirty times. Ms. Galway told the men with whom she was involved that
    the appellant was becoming sweet on her, and had told her that he loved her
    eyes. She told them she believed the appellant was falling in love with her,
    that she was aware of problems in his marriage to her sister, and that she
    intended to speak with the appellant about his unwanted attention. Following
    this disclosure, Ms. Galway wrote an email to Mr. Crooy on December 31, 2004, indicating
    that she had spoken to the appellant and that, everything is set right.  He
    was VERY apologetic and has begged me to forgive him for putting me in that
    position.

(2)

On January 1, 2005, Ms. Galway gave the appellant a bank draft for $9,600
    to assist him in setting up a small business. The appellant was overheard
    telling Ms. Galway that he could not accept it.  On January 4, 2005, Ms. Galway
    withdrew $9,600 in cash from her bank by cashing the bank draft that she had
    originally made payable to the appellant.  This money was never found.

(3)

Ms. Galway told both Mr. Gardiner and Mr. Crooy that she planned to go
    to the appellants home on January 5, to lend him money and to visit her niece,
    the appellants daughter.

(4)

The appellant acknowledged that he was to meet with Ms. Galway on January 5, 2005. However, he testified that she telephoned him from a pay phone between
    2:30 and 3:00 p.m. to say that she would be late because she was driving a
    friend to the airport and would arrive around dinner time. He said she never
    arrived.

(5)

On January 5, the appellants neighbour saw him dragging something
    wrapped in a dark coloured tarp, with red colouring at the top, outside his
    house.  It appeared heavy.

(6)

Later that day, neighbours saw the appellant carry a mattress with what
    looked to be a large red stain on it towards his van. Police subsequently
    located a discarded mattress matching a box spring in the appellants residence
    with a stain on it six kilometres from the appellants residence. Blood on the
    mattress matched Ms. Galways DNA profile. Ms. Galways blood was also
    discovered in the appellants van.

(7)

Ms. Galways car was found abandoned at the Ottawa Airport, parked illegally
    at a bus stop at around 5:00 p.m. on January 5, 2005.

(8)

The appellant left a voicemail for Ms. Galway on January 6 reiterating
    that she had called him the day before to inform him she was going to the
    airport and would be late. The appellant informed Mr. Crooy of Ms. Galways
    phone call about driving her friend to the airport. He also left messages for
    Mr. Gardiner and several police officers indicating that Ms. Galways brother
    and father were told by Ms. Galway that she would disappear one day and go
    wherever no one can hear from her.

(9)

Ms. Galways body was visually and microscopically examined by Dr.
    Johnston, the Crowns pathologist, on January 7, 2005. There was evidence of
    post-mortem animal predation to the anus and ankle, but not to the vagina. A
    vaginal swab revealed the presence of the appellants semen.

(10)

The appellant was photographed immediately upon his arrest. These
    photographs reveal fresh scratches in the area of his belly button, groin, and
    hip area, and a small mark on one finger.

(11)

The appellant was captured on video throwing a bag into a garbage bin at
    the Home Depot on January 7, 2005. When the police recovered the bag, they
    discovered it contained a pair of underwear, on which the appellants semen was
    found, and a typed letter purportedly written by Ms. Galway to her sister, the
    appellants wife. In this letter, Ms. Galway tells her sister she is planning
    to disappear and not to worry about her. She also commends her on the strength
    of her marriage to the appellant, and calls the appellant the kind of man that
    women in my shoe would dream of. This grammatical error was made by the
    appellant during his testimony.

(12)

At the appellants residence, investigators found evidence of an
    extensive clean-up.  An area rug was found in the hallway covering a piece of
    carpet that had been cut away. Upon searching the appellants neighbours
    garbage bins, the police located carpet fibres matching those in the
    appellants home and containing traces of Ms. Galways blood.

(13)

Dr. Johnston testified that Ms. Galways hyoid bone (a u-shaped bone in
    the neck which supports the tongue) was fractured and there was blood found in
    her nostrils and sinuses. He opined that this evidence was consistent with the
    application of force to her neck prior to her death. Swabs taken from various
    locations throughout the appellants house tested positive for blood matching
    Ms. Galways DNA profile, including the bathroom door frame, the bathroom wall,
    the shower curtain, the bathroom vanity, the garbage pail in the bathroom, the master
    bedroom door frame, the wall between the master bedroom and bathroom, and the
    railing in the upper hall.

(2)

The Appellants Evidence

[8]

The appellant testified that his frequent telephone conversations with
    Ms. Galway were about stock trading.

[9]

His account of what happened on January 5, the day Ms. Galway was
    killed, is as follows. In the morning his daughter defecated and spread her
    feces on a mattress.  He was unable to clean the mattress and decided to
    consult with his wife about discarding it when she returned from work.

[10]

After
    he received a telephone call from Ms. Galway telling him she would be late
    arriving at his home, he went out with his daughter and returned between 3:30
    and 4:30 p.m.  While his daughter was watching television downstairs, he went
    upstairs to check the stock market on his computer. At the entrance to his
    computer room, an unknown person placed a hand on his left shoulder and
    something else behind his head, whispering, [d]ont do anything, dont say
    anything, if you know what is good for you or your child.

[11]

Unknown
    persons then blindfolded the appellant, laid him down on his right side, and
    bound him in a manner that caused his legs to be spread apart. These persons
    then removed his pants and underwear, inserted one of their fingers into his
    rectum, milked his prostate, and caused him to discharge semen.  At some point
    during the assault, the appellant struggled and received a blow to [his]
    face.  His nose began to bleed.

[12]

The
    appellant called these intruders DNA thieves.  After extracting his semen,
    the DNA thieves threatened to harm his family if he said anything to anyone.  They
    also whispered that he should stop supporting Ms. Galway. They said something
    like, [y]ou were warned once and this is the second time.  If you know what is
    good for you  we know where you are, we know where your family is, we know where
    you work  leave Ms. Galway alone.  The appellant took this to mean, do what
    youre told, not mind Ms. Galways business.

[13]

The
    appellant testified that the warning given by the DNA thieves echoed an earlier
    threat made to him sometime between November and December of 2004 by Ms.
    Galways husband, Patrick Galway.  The appellant had supported Ms. Galways
    decision to separate from her husband in August of 2004.  Later that fall, Mr.
    Galway allegedly threatened the appellant, stating, [i]f [you know] what is
    good for you and your family, leave  stop supporting Barbara, leave Barbara
    alone.  At another point, the appellant added that Mr. Galway had said, I
    know that you have a record
[1]
and I know everything about you ...If you know what is good for you and your
    family, leave it alone.

[14]

After
    the DNA thieves threatened the appellant, they instructed him to wash his face
    and place the mattress that his daughter had defecated on in his vehicle and he
    did so. The DNA thieves told the appellant they were going to borrow his
    vehicle but assured him they would return it.  They then left his residence.

[15]

The
    appellant attempted to shower and wash the blood from his nose, but he heard
    his daughter call for him.  He was holding his nose and coming out of the bathroom
    when his daughter startled him, causing him to let go of his nose and to
    sneeze.  Blood dripped on to the carpet outside the bathroom. When the
    appellants wife came home, he told her about his nosebleed and she attempted
    to clean the blood stains.

[16]

Later
    that evening, the appellant went to check the parking lot where he kept his
    vehicle parked.  As he walked toward the lot, he saw a flashlight blinking in
    his direction.  He walked towards the light and found his vehicle, but the
    person who had flashed the light was gone.  The appellant drove his vehicle
    into his parking spot.

[17]

The
    next day, the appellant also attempted to clean up the blood from his
    nosebleed.  He also washed the carpet, although he did not see any blood on it.

[18]

The
    appellant testified that the DNA thieves must have stolen his garbage, planted
    the items found in the bag, including the semen found on his underwear, and
    planted the bag in the garbage can at the Home Depot. Similarly, the appellant
    testified that the DNA thieves could have put his semen in the deceaseds
    vagina after they killed her.  Alternatively, he submitted that the police were
    involved in the fabrication of evidence.

[19]

The
    appellant further testified that he did not tell the police about the DNA
    thieves or Mr. Galways involvement in the murder because he was afraid of
    endangering the lives of his family.  At trial, however, he felt safe
    disclosing the existence of the DNA thieves because it would be obvious that Mr.
    Galway was involved in the murder if they acted on their threats.

C.

THE LEGAL ISSUES

(1)

The Third Party Suspect
    Issue

[20]

The
    appellants entire defence was, basically, that a third party, Patrick Galway,
    could have committed Ms. Galways murder or had it committed by the DNA
    thieves.

[21]

The
    appellant brought a pre-trial motion to lead third party suspect evidence in
    November, 2008.  At that time, he did not point to any evidence of a connection
    between Patrick Galway and the alleged DNA thieves who entered his home.  Rather,
    he relied on the following evidence as giving an air of reality to his third
    party suspect defence, set out at para. 8 of the Crowns factum:

·

Patrick Galway had been married to the deceased for 21 years and
    paid her a lump sum of $250,000 following their separation. The deceased
    engaged in a number of extra-marital affairs leading to the break-up of the
    marriage;

·

Patrick Galway and the deceased had mutual life insurance
    policies in the amount $100,000;

·

The deceaseds 1991-1992 diary contained an entry dated April 20,
    1991, in which she complained that Patrick Galway had kicked her in the
    tailbone. Another entry stated that she reported lower back pain to her family
    physician on May 22, 1991. This visit was confirmed by independent medical
    records;

·

The deceased emailed her brother David on November 16, 2004,
    stating that to be honest I feel a bit betrayed by you right now. You are
    willing to forget how abusive [Patrick Galway] was to me for so many years;

·

Mr. Crooy testified at the preliminary inquiry that the deceased
    had informed him that she had suffered physical, verbal and emotional abuse
    during the marriage, although it had ceased five or six years prior to Mr.
    Crooy meeting the deceased in 2003 or 2004;

·

The deceaseds medical records relating to a visit to her doctor
    on March 29, 2004, stated: initially in marriage was abused (not any more) 
    not in three to four years  and did not have maturity to deal with it.

[22]

The
    trial judge dismissed the appellants third party suspect application, holding
    that aside from an extremely tenuous motive, there was virtually no evidence
    connecting Mr. Galway to the crime.  Having not established a sufficient
    evidentiary basis to do so, the appellant was ordered not to call evidence
    regarding a third party suspects involvement in the murder.

[23]

After
    the close of the Crowns case, the appellant renewed his request to put an alternate
    suspect defence before the jury. He testified that there were additional items
    of evidence not submitted during the initial alternate suspect application that
    tended to suggest that Mr. Galway had arranged for the deceaseds murder,
    including:

·

The similarity of the threat made to the appellant by Mr. Galway
    and the threat made by the DNA thieves during his assault, including their
    comment that he had been warned once, this is the second time;

·

The fact that Mr. Galway left his office half an hour after Ms.
    Galway on the day she went missing, and there is no evidence of his whereabouts
    during this time;

·

Evidence of a neighbour that she saw two people near the
    appellants house around the day he claimed to have been attacked by the DNA
    thieves;

·

The fact that three types of DNA were found on Ms. Galways
    watch, none of which matched the appellant.

[24]

Ultimately,
    after being advised by
amicus
that he might be subject to
    cross-examination on the affidavit he then proposed to file, the appellant
    withdrew his request to the trial judge to reconsider his ruling.

[25]

However,
    in defiance of the trial judges order that he not call evidence regarding a
    third party suspects involvement in the murder, the appellant then testified
    before the jury that he had made a connection in his own mind between the
    threat made by the DNA thieves and an earlier threat made to him by someone else,
    but he was forbidden to tell [the jury] his name. He also explained that the
    reason he had not told his wife about the visit by the DNA thieves was because
    her life and that of his daughter was in danger.

[26]

After
    objection by the Crown, a discussion ensued in the absence of the jury during
    which the appellant lost his temper and became verbally abusive towards the
    trial judge.  The trial judge adjourned, indicating he expected an apology the
    next day.  The next day the appellant apologized for his breakdown but indicated
    that his apology did not extend to the person of Mr. McKinnon. The appellant
    ultimately agreed he would not name Patrick Galway as a suspect unless the
    Crown provoked such an answer in cross-examination.

[27]

During
    cross-examination, the Crown asked the appellant when he came to understand
    that the DNA thieves were connected with Ms. Galways disappearance.  The
    appellant responded that when his wife told him that Patrick Galway was
    demanding $10,000 from her or he would sue them for her wrongful death, he
    connected the dots and realized that Patrick Galway had killed the deceased. 
    He then began shouting that Patrick Galway had killed his wife and gained
    $350,000
[2]
from her death. The jury was excused.

[28]

The
    appellant made it clear he had no intention of abiding by the trial judges
    alternate suspect ruling, and again engaged in a vituperative outburst towards the
    trial judge. The trial judge then warned the appellant that if he continued to
    disobey the courts order, the trial judge would inform the jury of his
    pre-trial ruling that there was no evidence to support [the appellants]
    assertion that Patrick Galway was a participant in the murder of his own wife.

[29]

When
    the jury returned, and the appellant returned to the witness box to complete
    his cross-examination, he refused to answer the Crowns questions.  Instead, he
    made a speech explaining Mr. Galway was responsible for the murder because he
    stood to gain $350,000 and had a history of abusing the deceased.  The
    appellant also alleged that Mr. Galway collaborated with the Crown in
    destroying some of the deceaseds diaries after the first trial.

[30]

He
    told the jury that Mr. Galway had given a statement to the police on January 7,
    2005 naming the appellant as a suspect in Ms. Galways disappearance, prior to
    her body being identified.  He explained that Mr. Galway understood the law and
    knew the appellant could be easily framed for Ms. Galways death because the
    appellant had a criminal record for armed robbery. He also testified that he
    had received similar threats from both Mr. Galway and the DNA thieves.

(2)

The Trial Judges Mid-Trial
    and Closing Instruction

[31]

In
    response to the appellants insistence on putting the third party defence
    before the jury, the trial judge immediately instructed them not to consider
    Mr. Galway as an alternate suspect.  As part of his instruction, the trial
    judge read to the jury portions of his ruling on the alternate suspect
    application, including the following:

All of the evidence points to the accused and away from Patrick
    Galway. There is a complete lack of nexus, as the authorities require. The proposed
    evidence is completely speculative and conjectural and would hopelessly confuse
    the jury. In the result, no evidence may be led alleging Patrick Galway to be a
    third party suspect. Such evidence would be extremely prejudicial and have no probative
    value.

[32]

He
    concluded his instruction by saying:

That was my ruling. And it's on that basis that I ruled this evidence
    inadmissible. Mr. Tehrankari has insisted that he put that story in front of you;
    its there. I've now given you my reasons as to why its inadmissible and I am
    instructing you to disregard the evidence.

[33]

At
    the conclusion of the trial, the trial judge again instructed the jury not to
    consider Mr. Galway as a third party suspect in his charge to the jury,
    concluding, there is no admissible evidence to support that assertion.

D.

Did the trial judge err in instructing the jury not to consider the third-party
    suspect evidence?

[34]

For
    the purposes of this appeal the panel agreed to consider all of the evidence
    from the preliminary application, the renewed application that was ultimately
    withdrawn and the appellants statements before the jury in determining whether
    the trial judge ought to have allowed the third party suspect defence to be
    left to the jury.

(1)

Governing Principles

[35]

An
    accused charged with a crime is entitled by way of defence to adduce evidence
    that a third party, not the accused, committed the crime. The evidence must
    meet the test of relevancy and must have sufficient probative value to justify
    its reception. In order to be relevant and probative, the evidence must connect
    the third person with the crime. If there is an insufficient connection between
    the third person and the crime, the evidence will lack the requisite air of
    reality:
R. v. McMillan
(1975)
,
23 C.C.C. (2d) 160, affd
    [1977] 2 S.C.R.824, at pp. 167-168;
R. v. Grandinetti
, 2005 SCC 5, 191
    C.C.C. (3d) 449, at paras. 46-48.

[36]

Evidence
    of a violent disposition or animus towards the deceased, standing alone, will
    not meet the required threshold.  However, if there is evidence that the third
    person had a motive to commit the crime or threatened the deceased
and
had the opportunity to carry out the crime, then the evidence of propensity may
    have probative value:
R. v. Murphy
, 2012 ONCA 573, at para. 21;
R.
    v. Baltrusaitis
(1996), 31 W.C.B. (2d) 184;
R. v. McMillan,
at p.168.

[37]

The
    evidence may be direct or circumstantial.  Inferences based on the evidence may
    be drawn, but speculation is not permitted. The evidentiary burden on the
    accused is discharged if the defence shows that there is some evidence upon
    which a reasonable, properly instructed jury could acquit based on the proposed
    defence:
R. v. Grandinetti,
at paras. 47-48;
R. v. Fontaine
,
    2004 SCC 27,

[2004] 1 S.C.R. 702, at para. 70.

[38]

This
    court has recently held that where an accused proposes to call direct evidence
    from a third party who is expected to admit culpability for the offences
    charged, this proposed evidence itself is sufficiently probative to establish
    an air of reality to the third party defence.  In other words, the proposed
    direct evidence of the third party represents the requisite nexus between that
    third party and the crime, and it is an error to require the accused to show
    more before allowing the third party witness to be called:
R. v. Murphy
,
    at paras. 20-23.

(2)

Did the trial judge
    properly apply the governing principles?

[39]

The
    core of the argument put forward by
amicus
is contained in para. 51 of
    his factum.  He submits that the trial judge erred by failing to appreciate
    that once the Appellant testified before the jury that the DNA thieves uttered
    a threat that contained a factual linkage to an earlier threat made by the
    alternate suspect to the Appellant, the air of reality threshold had been met
    and the alternate suspect defence had to be left with the jury.

[40]

In
    other words,
amicus
accepted that the appellants first alternate
    suspect application was properly rejected, in light of the legal principles
    described above, as containing only tenuous and circumstantial evidence of Mr.
    Galways propensity or motive. However, the appellants additional direct
    testimonial evidence about the threats, together with the previously submitted
    circumstantial evidence, provided a sufficient evidentiary basis to justify the
    third party defence being left with the jury.
Amicus
argues, in short,
    that the appellant in his testimony provided direct evidence which, if
    believed, implicated Mr. Galway.

[41]

I
    disagree with this submission. Even accepting the appellants testimony as
    true, there is no direct evidence that Mr. Galway orchestrated this murder.  The
    direct evidence in the appellants testimony is that the DNA thieves came into
    the appellants house, took the DNA sample, and uttered a threat to him. The
    evidence that the appellant received a threat from Mr. Galway in November or
    December of 2004 is also direct evidence.

[42]

However,
    the evidence that the appellant drew a connection in his mind between the
    threat made by Mr. Galway and what the DNA thieves said is not direct evidence
    of a nexus between Mr. Galway and the thieves.  Rather, it is direct evidence
    of the appellants
belief
in such a nexus. The alleged threat uttered
    by the DNA thieves contained no factual linkage to the earlier threat made by
    Mr. Galway.  This is not a case like
R. v. Murphy,
where the appellant
    sought to call direct evidence from the third party suspect in anticipation
    that the third party would accept responsibility for the crime.  There was
    never any possibility that Mr. Galway would testify and admit culpability.

[43]

The
    question is whether, based on the alleged similarity of the threats and a
    statement by one of the DNA thieves to the effect that the appellant had been
    warned once before, a permissible inference may be drawn connecting Mr. Galway
    to the deceaseds death. For the following reasons, no such inference can be
    drawn.

[44]

First,
    even if the appellants evidence respecting the DNA thieves is true, the
    existence of a nexus between the alleged DNA thieves and Mr. Galway is speculation
    on his part.  The DNA thieves did not purport to be there on Mr. Galways
    behalf.  The appellant himself testified that he only made a connection between
    the threat by the DNA thieves and Mr. Galway when he learned that Mr. Galway
    was threatening to bring a civil action against him and his wife for Ms.
    Galways death.  This is not a logical reason to connect Mr. Galway to the DNA
    thieves.

[45]

Second,
    the inference capable of being drawn must connect the third party to the
    murder. That is not the case here. The threat made by both Mr. Galway and the
    DNA thieves was the antithesis of a threat to kill the deceased.  The appellant
    was warned to keep away from the deceased.  His failure to comply would result
    in harm to the appellant and his family, not the deceased. It was the
    appellant, not the deceased, who was in fact assaulted by the DNA thieves.

[46]

Third,
    the appellant says he cannot recall the exact words spoken by the DNA thieves.
    For evidence to be probative, it must be capable of being relied upon.  The
    reliability of what was said was not established.

[47]

Fourth,
    as the trial judge held, the evidence of motive of the third party was weak.  There
    is insufficient evidence to reasonably infer that Mr. Galways motive for
    killing his wife was for financial gain.  There is no indication, for example,
    that Mr. Galway was experiencing financial difficulty. The appellants belief
    in Mr. Galways desire for the $350,000 was speculation on the appellants
    part.  Further, the evidence of propensity respecting Mr. Galway was deficient
    in that it lacked a sufficient link to Ms. Galways murder.  The incidents of
    alleged abuse had ceased several years before their separation.  There was no
    evidence that Mr. Galway engaged in any violence or made threats towards Ms.
    Galway after their separation.

[48]

In
    sum, the trial judge made no error in excluding from the jurys consideration
    the appellants third party suspect defence.  The appellants related ground of
    appeal, namely that the trial judge erred in law by failing to re-visit the
    appellants application to lead evidence in relation to the third-party suspect,
    must also fail.

E.

did the trial judge err in his issuance of the Mid-Trial and Closing
    Instruction to the Jury?

[49]

A
    trial judge is permitted to offer an opinion as to the believability of
    evidence but is never permitted to give a direction on the ultimate issue of
    guilt:
R. v. Gunning
, 2005 SCC 27,

[2005] 1 S.C.R. 627, at
    para. 31;
R. v. Krieger
, 2006 SCC 47,

[2006] 2 S.C.R. 501;
R.
    v. Mayuran
, 2012 SCC 31, 284 C.C.C. (3d) 1, at para. 36.

[50]

Amicus
submits that even if the trial judge was correct in refusing to leave the third
    party suspect defence with the jury, the trial judge erred in telling the jury
    why he had refused to allow the defence.  In doing so, he transgressed on the
    fact-finding function of the jury and, in essence, directed them to find the
    appellant guilty.  In making this submission,
amicus
emphasizes the
    trial judges comment in his mid-trial instruction that [a]ll of the evidence
    points to the accused and away from Patrick Galway.

[51]

In
    support of his position,
amicus
relies on this courts decision in
R.
    v. Foreman
(2002), 169 C.C.C. (3d) 489, leave to appeal to S.C.C. refused,
    [2003] S.C.C.A. No. 199, at para. 42, in which Doherty J.A. stated:

The admissibility of evidence is a question for the trial
    judge.  There is no need to explain to a jury the criteria governing
    admissibility or the trial judges evaluation of that criteria.  The
    explanation is at best superfluous and at worst may taint the jurys
    fact-finding function if there is an overlap between the test for admissibility
    and the criteria to be considered by the jury in assessing the evidence:
R.
    v. Gilling
(1997), 117 C.C.C. (3d) 444 at 449-50 (Ont. C.A.).

[52]

In
    pleading not guilty, an accused is, in effect, saying that the Crown cannot
    meet its burden of proving each and every element of the offence beyond a
    reasonable doubt. The air of reality requirement of affirmative defences has
    no application. No matter how overwhelming the evidence is, it is never the
    function of a trial judge sitting with a jury to decide that the Crown has
    proven one or more essential elements of the offence charged and to direct the
    jury that the Crown has discharged its burden in this regard, or to direct the
    jury to convict:
R. v. Gunning,
at paras. 30-31;
R. v. Krieger,
at
    para. 24. To do so is to take away the accuseds constitutional right to a
    trial by jury, and in such a case the curative proviso found in s. 686(1)(
b
)(iii)
    of the
Criminal Code
, R.S.C. 1985, c. C-46, cannot be applied:
R.
    v. Krieger,
at para. 25.

[53]

However,
    in this case, the trial judges comment in his mid-trial instruction was not in
    effect a direction to the jury to find the appellant guilty. It remained open
    to the jury on all the evidence before it to find that the Crown had not proven
    the appellants guilt beyond a reasonable doubt. Further, the appellant
    provoked the trial judges mid-trial instruction to the jury. The trial judge
    warned the appellant that if he persisted in naming Patrick Galway as a third
    party suspect in front of the jury, he would have to instruct them to ignore
    this evidence.  It was only after the appellant continued to defy the courts
    order and the appellants third outburst before the jury that the instruction
    was provided. In the circumstances, the appellants remarks required a response
    given their potential to leave the jury with the impression that the trial
    judge was deliberately attempting to bury critical evidence.

[54]

In
    the cases on which
amicus
relies,
R. v. Foreman
and
R. v.
    Gilling,
the trial judge made a preliminary assessment that the evidence
    in question was admissible.  As a result, the jury would have to weigh that
    evidence.  In those circumstances, telling the jury that the evidence had been found
    to be reliable ran the risk of elevating it and influencing the jury as to the
    weight to be given to that evidence. Here, because the evidence was
    inadmissible, the trial judges comments could not influence the weight to be
    given by the jury to that evidence.

[55]

In
    saying that all of the evidence pointed towards the accused and away from
    Patrick Galway during his mid-trial instruction, the trial judge was giving an
    opinion on the evidence at that stage of the trial.  In his charge to the jury,
    the trial judge gave the standard instruction that, while he was entitled to
    express an opinion on the evidence, it was the jurys function to decide the
    facts, not his.  The trial judge did not repeat the impugned mid-trial comment
    in his closing address, and his direction to the jury that there was no
    admissible evidence to support the appellants assertion of a third party
    suspect was accurate.

[56]

The
    trial judge reviewed the appellants evidence, including his evidence that he
    had been framed, and told the jury that if it alone or in combination with any
    other evidence left them with a reasonable doubt, they must acquit. The jury
    deliberated for two days before returning a verdict of guilty.  The members of
    the jury understood their function was to weigh the evidence and did so. 
    Considering the trial judges instructions as a whole, the appellant was not
    deprived of his constitutional right to be tried by a jury.

[57]

At
    its highest, the trial judges mid-trial comments resulted in an imperfect
    trial.  Assuming the trial judges comment that all of the evidence pointed
    towards the appellant ought not to have been made, I would nevertheless uphold
    the verdict based on s. 686(i)(
b
)(iii) of the
Criminal Code
.
    The comment occasioned no substantial wrong or miscarriage of justice. The
    evidence as to the appellants guilt was overwhelming and, in the
    circumstances, the verdict would inevitably have been the same.

F.

The Grounds of Appeal raised by the Appellant

[58]

I
    am largely in agreement with the Crowns submissions in response to the
    remaining grounds of appeal raised by the appellant.

[59]

The
    appellant submits that the trial judge erred in not granting his motion for a
    directed verdict acquitting him.  As I have indicated, the evidence against the
    appellant was overwhelming.  The trial judge did not err in dismissing the
    motion.

[60]

The
    appellant renews his request for exhumation of the deceaseds body and
    additional forensic testing, which was thoroughly considered by a panel of this
    court in June of this year and dismissed. His related allegation that the
    deceaseds vagina was missing due to animal predation, along with his concern
    about some forensic samples taken from his home containing no human DNA, are
    linked to his theory that the police conspired to frame him. There is no
    credible evidence in support of these allegations.

[61]

The
    appellant also contests the admissibility of the deceaseds hearsay statements
    to Mr. Crooy and Mr. Gardiner regarding the appellants phone calls and
    romantic advances.  The threshold reliability of these statements is supported
    by the deceaseds phone records, and the email the deceased sent to Mr. Crooy
    regarding her conversation with the appellant about his behaviour.  The trial
    judge did not err in admitting this evidence.

[62]

The
    appellant also submits that the trial judge erred in rejecting his argument
    respecting jury unanimity as to how the deceaseds death was caused.  The
    appellants argument is contrary to current jurisprudence, which holds that a
    jury can arrive at their verdict by different routes and need not rely on the
    same facts:
R. v. Thatcher
, [1987] 1 S.C.R. 652;
R. v. Dool
, [1987]
    O.J. No. 564 (C.A.), leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 83;
R. v. S.M.R.
(2004), 189 C.C.C. (3d) 152 (Ont. C.A.)  The trial judge therefore
    properly rejected this argument.

[63]

In
    his charge to the jury, the trial judge gave the jury a warning indicating that
    no adverse inference could be drawn from the appellants decision to exercise
    his right to remain silent during a video-taped interview with Ottawa Police.  I
    would reject the appellants complaint that his right to remain silent was
    violated by this instruction for the following reasons.

[64]

In
    the course of his charge, the trial judge reminded the jury of a mid-trial
    instruction he had given to the same effect. This initial instruction arose
    from the trial judges concern that the jury had watched approximately thirty
    minutes of the video-taped interview in question. The video showed the
    appellant, shortly after his arrest, repeatedly invoking his right to silence
    in response to police questioning. Mr. Tehrankari requested that the jury watch
    the video in support of his cross-examinations of the two detectives about,
    among other things, their abusive interrogation style.

[65]

The
    Supreme Court of Canada has recently affirmed a trial judges ability to
    comment on an accuseds right to silence in a jury charge in appropriate
    circumstances:
R. v. Prokofiew
, 2012 SCC 49. Although the facts of
    this appeal differ slightly from those in
R. v. Prokofiew
, where one
    co-accused elected not to testify in the course of a joint trial, the
    majoritys reasoning at para. 1 applies:

[Section] 4(6) of the
Canada Evidence Act
, R.S.C. 1985,
    c. C-5 (CEA), does not prohibit a trial judge from affirming an accuseds
    right to silence. In so concluding, I should not be takento suggestthat such
    an instruction must be given in every case where an accused exercises his or
    her right to remain silent at trial. Rather, it will be for the trial judge, in
    the exercise of his or her discretion, to provide such an instruction where
    there is a realistic concern that the jury may place evidential value on an
    accuseds decision not to testify.

[66]

It
    was open to the trial judge in this case to exercise his discretion to instruct
    the jury on the appellants decision to remain silent during the video-taped
    interrogation they had watched. It was reasonable for the trial judge to be
    concerned that the jury, without proper instruction, may misuse the evidence
    put so vividly before it.

[67]

In
    his charge, the trial judge was simply referring back to his earlier
    instruction neutralizing any impermissible inferences that might be drawn from
    the videotape. Further, the charge on the appellants right to remain silent
    was correctly stated. The jury would have understood that they were not
    entitled to place any weight on the appellants exercise of his constitutional
    rights. I would accordingly dismiss this ground of appeal.

[68]

In
    his factum, the appellant marshals other evidence in support of inferences
    favourable to the defence that he submits ought to have been drawn. I agree
    with the Crowns submission that the mere fact that a jury could have drawn a
    different inference or that the appellant can point to individual pieces of
    evidence he says are exculpatory is not a basis for intervention.

[69]

The
    appellants complaints concerning abuses by the correctional authorities were
    dealt with by the trial judge.  I am satisfied that he committed no error in
    telling the appellant he could lay charges for any alleged assault and in
    refusing to conduct a parallel inquiry.  In addition, the trial judges orders
    granting the appellant access to the material and support he needed to prepare
    himself for trial ensured that the appellant received a fair trial.

[70]

Finally,
    I would dismiss any other grounds of appeal not specifically addressed by these
    reasons, as I am of the opinion they are devoid of merit.

G.

Result

[71]

For
    the reasons I have given, I would dismiss this appeal.

Released: October 26, 2012 (D.OC.)

Karen M. Weiler J.A.

I agree D. OConnor A.C.J.O.

I agree Alexandra Hoy J.A.





[1]
The appellant has a record for armed robbery.



[2]
Presumably the appellant was referring to the $250,000 owed to Ms. Galway on
    the division of their assets as well as the proceeds of the $100,000 insurance
    policy on her life.


