



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Turcotte,







2008 
          BCCA 56



Date: 20080204

Docket: CA034265

Between:

Regina

Respondent

And

Thomas 
    Alexander Turcotte

Appellant




Before:


The 
          Honourable Madam Justice Prowse




The 
          Honourable Mr. Justice Hall




The 
          Honourable Mr. Justice Frankel



Oral Reasons for Judgment




C.K. 
          Aartsen


Counsel for the Appellant




O.S. 
          Kuzma, Q.C.


Counsel for the Respondent




Place 
          and Date:


Vancouver, British Columbia




4 February 2008



[1]

FRANKEL, J.A.
:  Thomas Alexander Turcotte appeals his conviction on 
    three counts of second degree murder by Mr. Justice Holmes sitting without 
    a jury.  The murders occurred at the Erhorn Ranch, located approximately 30 
    kilometres from Vanderhoof, British Columbia.  All of the victims died after 
    being struck in the head with an axe.  The primary issue at the trial was 
    the identity of the person who wielded the axe.

[2]

This was Mr. Turcottes second trial on these charges.  At the first 
    trial he was convicted by a jury.  This Court allowed his appeal from that 
    conviction and ordered a new trial because the jury had been invited to infer 
    guilt when Mr. Turcotte chose not to answer certain questions from the police:  
    2004 BCCA 175, 184 C.C.C. (3d) 242.  A further appeal by the Crown was dismissed 
    by the Supreme Court of Canada:  [2005] 2 S.C.R. 519, 2005 SCC 50.

[3]

Mr. Turcotte lived in a shack on the ranch.  He was not an employee 
    of the ranch, but occasionally did some odd jobs and mechanical work for the 
    owner, Robert Erhorn.

[4]

Two of the victims, Terrance Benjamin Price and Kimberley David Martindale, 
    worked as ranch hands, but did not live on the property.  The third victim, 
    Aaale Heikkila, lived on the ranch in a trailer with a log cabin attachment.  
    He did not work at the ranch.

[5]

Robert Erhorn lived in the main ranch house.  He was in hospital the 
    day the victims were attacked.

[6]

At approximately 9:30 a.m. on May 4, 2000, Mr. Turcotte arrived at 
    the Royal Canadian Mounted Police detachment in Vanderhoof.  He spoke with 
    Ruth Stewart, a civilian employee, at the counter.  Ms. Stewart asked what 
    she could do for him, and he replied, Better get a car out to Bob Erhorns 
    place and arrest me.  She asked him why, and he did not answer.  He repeated 
    the same request twice more.  Ms. Stewart asked him his name and he replied, 
    Tom.

[7]

Ms. Stewart asked Corporal Wayne Curle to come to the counter.  Constable 
    Ross Davidson was nearby and also came to assist.  When they arrived Ms. Stewart 
    said, This is Tom.  He would like us to arrest him and send a car to the 
    Erhorn Ranch.  Constable Davidson asked Mr. Turcotte, Why?, but Mr. Turcotte 
    chose not to answer.

[8]

Mr. Turcotte was taken to an interview room.  He declined to answer 
    any questions about why a police car should be sent to the ranch or what was 
    happening there.  He did, however, answer questions about officer safety.  
    He said that if officers were sent to the ranch, then they would not be in 
    danger. He also requested that an ambulance be sent to the ranch, and at some 
    point said, Send a car out there and put me in jail.

[9]

Mr. Turcotte told the officers that there was a rifle in the truck 
    he had driven to the detachment.  Later the police found a loaded semi-automatic 
    rifle between the drivers and passengers seats.  The truck belonged to Mr. 
    Heikkila.

[10]

The police seized the clothing Mr. Turcotte was wearing.  On later 
    forensic serology and D.N.A. analysis, bloodstains on Mr. Turcottes left 
    boot and lower right pant leg were matched to Mr. Price and Mr. Martindale.

[11]

Police officers were dispatched to the ranch, and arrived there shortly 
    after 10:00 a.m.  Mr. Martindales body was found on the driveway near the 
    main ranch house.  Mr. Prices body was in a nearby woodshed.  Both had 
    sustained massive head injuries.

[12]

Mr. Heikkila was found on the driveway area near his trailer.  He also 
    had a massive head injury, but was alive.  He was moaning and his head was 
    covered with a coat.  Mr. Heikkila never regained consciousness and died on 
    May 24, 2000.

[13]

A police investigative forensic team was dispatched to the ranch that 
    afternoon.  However, before its members could complete their work, there was 
    a sudden storm with rain, hail, and high winds.  The weather conditions may 
    have washed away blood and obliterated or compromised evidence.

[14]

A rifle was found leaning against a tractor which was parked near a 
    fork in the road leading to Mr. Heikkilas trailer.  A portable radio, still 
    playing, belonging to Mr. Heikkila, and an open orange juice container 
    were found near the tractor.  Mr. Turcottes fingerprints were found 
    on the radio and juice container but there was no evidence as to when he handled 
    them.  Mr. Heikkilas refrigerator contained similar orange juice containers.

[15]

The police conducted an extensive search of the property for the murder 
    weapon.  Many axes and hatchets were seized, examined, and rejected.  Two 
    months after the murders, friends of Mr. Heikkila found the murder weapon, 
    a double-headed axe, on the roof of Mr. Heikkilas trailer.  The axe belonged 
    to Mr. Erhorn and was normally kept in the woodshed where Mr. Prices 
    body was found.

[16]

At the trial, the Crown call John Mellis, a retired member of the Royal 
    Canadian Mounted Police, who was qualified as an expert in bloodstain analysis 
    and crime scene investigation.  Mr. Mellis was unable to provide any opinion 
    regarding the bloodstains found on Mr. Turcottes boot and pant leg.  He testified 
    that one would not necessarily see a pattern of splattering on an assailants 
    clothing if a victim was struck from behind with an axe.

[17]

The Crown also led evidence from several friends and acquaintances 
    of Mr. Heikkila that Mr. Heikkila did not trust Mr. Turcotte and felt 
    uncomfortable around him.  Mr. Heikkila had indicated to some of them that 
    he intended to move away from the ranch.

[18]

Mr. Turcotte did not call a defence.

[19]

At the outset of this reason, the trial judge stated:

[2]        
    The primary issue and dispute in this matter is the identity of the person 
    who caused the death of the three victims.  There is no doubt that the victims 
    died of the head wounds inflicted and that the infliction of those wounds 
    by blows from an axe was unlawful.  It is obvious from the evidence and circumstances 
    that the intentional application of force used was intended to cause the death 
    of the victims, and in each case it did.

[3]        
    I intend to focus my remarks, therefore, on the issue of whether the Crown 
    has, by circumstantial evidence, proven the all important element of whether 
    the accused is the person who committed the murder of the three victims.

[20]

The trial judge then proceeded to review and evaluate the evidence 
    tendered by the Crown.  Early in his reasons he noted that the Crown had not 
    alleged a motive and that lack of motive was a factor to be considered.  As 
    to the burden of proof, he said this:

[7]        
    The burden on the Crown is to prove beyond a reasonable doubt that the guilt 
    of the accused is the only reasonable inference to be drawn from the proven 
    facts.  If the facts are consistent with any rational conclusion other than 
    the guilt of the accused, the burden of proof beyond a reasonable doubt residing 
    upon the Crown in respect of the circumstantial evidence will not have been 
    met.

[21]

With respect to the evidence of several witnesses regarding statements 
    made to them by Mr. Heikkila concerning his relationship with Mr. Turcotte, 
    the trial judge said this:

[34]      
    The accused had no reputation for violence and no criminal record.  Erhorn 
    heard from Heikkila that he suspected the accused in relation to a camera 
    that had gone missing.  The combined evidence from several persons, Bob Erhorn, 
    Laurie and Marjetta Valiaho, Boyd Chenoweth and Leonard Kozak support the 
    suggestion that Heikkila apparently expressed distrust of the accused, felt 
    it odd he never left the ranch and was uncomfortable to the point that he 
    expressed an intention to move away.

[35]      
    I have concern with this type of evidence, and I limit my consideration of 
    it only to the context of the likelihood that Heikkila might have allowed 
    the accused to handle his personal possessions like the radio, giving him 
    containers of orange juice or giving him the keys and the use of his truck.

[22]

The trial judge rejected the suggestion, advanced by defence counsel, 
    that Mr. Turcottes request to be arrested did not relate to what had happened 
    at the ranch, but rather related to the loaded rifle in Mr. Heikkilas truck:

[46]      
    In my view, however, the accused clearly linked his desire to be arrested, 
    when dealing with Mrs. Stewart, with the sending of a car to the ranch and 
    not with any firearm in the truck.  The references to the gun and arrest or 
    keeping him in jail were later in separate comments.  Someone who had come 
    upon the scene of the murders might realize that Mr. Heikkila was alive and, 
    therefore, an ambulance needed.  By anyone would need much more information 
    to say there was no danger to anyone attending the ranch.  That would require 
    knowing who and where the murderer was.  Counsel for the accused argues it 
    would just be common sense for someone who had come upon the scene of the 
    murders to be asking for a police car and an ambulance and to presume that 
    the murderer had gone.

[23]

On the basis of the expert opinion evidence given by Mr. Mellis, the 
    trial judge rejected defence counsels suggestion that the murderer would 
    have been covered with a great deal of blood.  With respect to the small amount 
    of blood on Mr. Turcottes clothing, the trial judge said this:

[50]      
    The blood found on the accuseds shoe and pant leg could have come from the 
    transfer action by walking through blood-spattered grass.  It could come from 
    transferring when making close inspection of the bodies.  It is possible the 
    hail and rainstorm could have washed away evidence of blood trails in the 
    grass made by blood from the axe dripping while the murderer moved from one 
    area to another.

[51]      
    A preliminary walk of the area, however, was conducted by the investigative 
    team prior to the storm and did not disclose any obvious blood trail evidence.  
    The blood spatter pattern on the wall of the Heikkila trailer and blood drops 
    at the trailer entrance are indicative of blood transported from the other 
    murder sites that had dripped from the axe or been thrown off by centrifugal 
    force when it was swung in the proximity to Mr. Heikkila.

[24]

In response to a defence submission regarding the possible involvement 
    of other persons, the trial judge stated:

[55]      
    In my view, there was no basis to suggest any of these persons was a serious 
    suspect, having regard to the circumstances of the murders in issue, and there 
    was a complete lack of any real evidence to implicate any of them in the murders.  
    I am also of the view that the police did not ignore this aspect of the investigation 
    and that appropriate inquiry was made.

[25]

Upon completing his analysis of the evidence and the submissions of 
    counsel, the trial judge expressed himself as follows:

[56]      
    The evidence, of course, is not to be viewed piecemeal by only considering 
    possible explanations of each piece of circumstantial evidence as to do so 
    does not address the cumulative effect of that evidence.

[57]      
    In conclusion, Mr. Turcotte, I am satisfied beyond a reasonable doubt that 
    the only reasonable explanation to be drawn from the proven facts is that 
    you are guilty of the three second degree murders that have been charged.

[26]

Mr. Turcotte challenges his conviction on two grounds.  He submits 
    that the trial judge failed to give adequate reasons for his decision and, 
    further, that, the evidence does not support the inferences drawn by the trial 
    judge.

[27]

With respect to his first ground, Mr. Turcotte, citing
R. v. 
    Sheppard
, [2002] 1 S.C.R. 869, 2002 SCC 26, says that at the trial 
    judge failed to identify and analyse the evidence upon which he based his 
    decision.

[28]

I do not accept this contention.  The basis for the conviction is clear 
    from the reasons.  The trial judge reviewed the evidence in some detail, made 
    specific findings of fact, and drew inferences from those facts.  He summarized 
    the theory of the defence and addressed the submissions advanced on Mr. Turcottes 
    behalf with respect to alleged deficiencies in the Crowns case.  In the end, 
    he was satisfied by the cumulative effect of the evidence that Mr. Turcotte 
    had committed the murders.

[29]

Next, Mr. Turcotte submits that, taken as a whole, there is insufficient 
    evidence to support the convictions.  In other words, relying on s. 686(1)(a)(i) 
    of the
Criminal Code
, R.S.C. 1985, c. C-46, he says that, the 
    verdict should be set aside on the ground that it is unreasonable or cannot 
    be supported by the evidence.  This argument was advanced on essentially 
    the same as basis as the defence case was advanced at trial.

[30]

The scope of appellate review under this provision is well defined 
    by the authorities.  Given the nature of the evidence in this case the following 
    excerpt from the judgment of Mr. Justice Low in
R. v. Dhillon
, 
    2001 BCCA 353, 158 C.C.C. (3d) 353 is apposite:

102      
    Since the Crowns case is entirely circumstantial, it seems to me that this 
    court must determine whether a properly instructed jury, acting judicially, 
    could have reasonably concluded that the only rational conclusion to be reached 
    from the whole of the evidence is that the appellant murdered the victim.

[31]

As summarized in the Crowns factum, the evidence in the case at bar 
    consisted of:

(a)        
    The Appellants presence on the ranch at the time of the offences and his 
    opportunity to commit the crimes;

(b)        
    the location of blood and D.N.A. of Price and Martindale on the Appellants 
    left hiking boot and on the mid-shin area of the right leg of the Appellants 
    blue jeans;

(c)        
    the discovery of the Appellants fingerprints on an orange juice container 
    and on a ghettoblaster belonging to Mr. Heikkila which was playing at the 
    time of its discovery, beside a tractor, in a location mid-way between Mr. 
    Heikkilas cabin and the areas where the bodies of Mr. Price and Mr. Martindale 
    were found;

(d)        
    the use of an axe belonging to the owner of the ranch which was normally located 
    in the woodshed where Mr. Prices body was found and which was later discovered 
    on the ranch;

(e)        
    the absence of any physical evidence linking any other potential suspects 
    to the crime scenes and the circumstance that of all the persons on the ranch 
    at the time of the offence, only the Appellants life was spared; and

(f)         
    the conduct of the Appellant in attending at the Vanderhoof R.C.M.P. Detachment, 
    repeatedly directing the police to send a car to the ranch and to arrest him 
    or to put him in jail.

[32]

In my opinion, this evidence, taken as a whole, is capable of supporting 
    the conclusion reached by the trial judge and it, therefore, cannot be said 
    that his decision is unreasonable.

[33]

In addition, the fact that Mr. Turcotte chose not to testify provides 
    further support for the conclusion that the verdict is not unreasonable.  
    As Mr. Justice Sopinka indicated in
R. v. Noble
, [1997] 
    1 S.C.R. 874, an appellate court may consider the silence of the accused 
    as failing to provide an innocent explanation for the existence of otherwise 
    convincing inculpatory facts:  para. 104.  This is such a case having regard, 
    in particular, to the presence of the blood of two of the victims on Mr. Turcottes 
    clothing, and to what Mr. Turcotte said upon his arrival at the police detachment.

[34]

In spite of the arguments presented on Mr. Turcottes behalf, I am 
    not persuaded that the trial judge erred in law or in fact.  Accordingly, 
    I would dismiss this appeal.

[35]

PROWSE, J.A.
: I agree.

[36]

HALL, J.A.
: I agree.

[37]

PROWSE, J.A.
: The appeal is dismissed.

The Honourable 
    Mr. Justice Frankel


