


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Uhrig, 2012
    ONCA 470

DATE: 20120703

DOCKET: C48468

Rouleau, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dennis Uhrig

Appellant

Stephen F. Gehl, for the appellant

Susan Magotiaux, for the respondent

Heard: June 26, 2012

On appeal from the conviction entered by Justice E.
    Gerald Taylor of the Superior Court of Justice, sitting with a jury, on
    December 12, 2007.

ENDORSEMENT

[1]

The appellant seeks to set aside his conviction of first degree murder
    on two grounds:

i.        that
    the conviction is unreasonable and cannot be supported      on the evidence
    adduced at trial; and

ii.       that
    police background checks on members of the jury panel      amounted to an abuse
    of process and warrant a new trial.

[2]

We would not give effect to either ground of appeal.

Unreasonable Verdict

[3]

The case for the Crown at trial was entirely circumstantial. It included
    evidence of motive, opportunity, and access to instruments of the kind used to
    cause the deceaseds death.

[4]

The deceased and the appellant were neighbours, familiar with each
    others routines and habits. The appellant was involved in an intimate
    relationship with the deceaseds wife whom he had asked to leave the deceased
    and join him. The deceaseds wife refused to do so.

[5]

On the evening on which the deceased was killed, he was alone in his
    cottage. The appellant knew this and also knew that the deceaseds wife was
    spending the night elsewhere. The appellant had a key to the deceaseds cottage
    and knew well its layout. He was well-known to the family dog. There were no
    signs of forced entry to the cottage.

[6]

The deceased was killed in his bed. The cause of death was blunt force
    trauma, consistent with a blow to the head from a baseball bat. About a week
    before the deceased was killed, the appellant had a baseball bat as he and the
    deceaseds wife were waiting up at night to catch some vandals who had damaged
    properties in the area.

[7]

About two days after the deceased was killed, police officers saw the
    appellant stop his van on a county road near the cottages, get out of the vehicle,
    walk briskly into an adjacent bush, and return a few seconds later. The area
    where the appellant stopped was near where a baseball bat with the deceaseds
    blood was found in a cornfield only 21 metres off the roadway.

[8]

The appellant was interviewed by the police. The interview was video
    recorded and played for the jury. The appellant denied killing the deceased and
    denied any intimate relationship with the deceaseds wife.

[9]

At the conclusion of the Crowns case at trial, the appellant did not
    seek a directed verdict of acquittal.  He did not testify at trial.

[10]

A
    reasonable verdict is a verdict that a properly instructed jury, acting
    judicially, could reasonably have rendered;
R. v. Biniaris
, [2000] 1 S.C.R.
    381, at para. 36.

[11]

In
    this case, the final instructions of the trial judge made it absolutely clear
    that the Crowns case consisted entirely of circumstantial evidence. The jurors
    were told twice that in order to find the appellant guilty as charged, they had
    to be satisfied that his guilt was the only reasonable inference from the
    evidence considered as a whole. They were told, twice, although they need not
    have been, that proof beyond a reasonable doubt was much closer to absolute
    certainty than to probable guilt. The final instructions on the essential
    elements of the offence, as with the instructions as a whole, were vetted with
    and approved by counsel prior to delivery.  No objection was taken to the
    charge.

[12]

In
    our view, the cumulative effect of the circumstantial evidence adduced by the
    Crown was such that a properly instructed jury, acting judicially, could
    reasonably have found

i.        that
    the appellant unlawfully killed the deceased;

ii.       that
    the unlawful killing was murder; and

iii.      that
    the murder was planned and deliberate.

[13]

When
    arguments are advanced, as here, that individual items of circumstantial
    evidence are explicable on bases other than guilt, it is essential to keep in
    mind that it is, after all, the cumulative effect of all the evidence that must
    satisfy the standard of proof required of the Crown.  Individual items of
    evidence are links in the chain of ultimate proof:
R. v. Morin
, [1988]
    2 S.C.R. 345, at p. 361. Individual items of evidence are not to be
    examined separately and in isolation, then cast aside if the ultimate inference
    sought from their accumulation does not follow from each individual item alone.
    It may be and very often is the case that items of evidence adduced by the
    Crown, examined separately, have not a very strong probative value. But all the
    evidence has to be considered, each item in relation to the others and to the
    evidence as a whole, and it is all of them taken together that may constitute a
    proper basis for a conviction:
Cote v. The King
(1941), 77 C.C.C. 75
    (S.C.C.), at p. 76.

[14]

We
    would not give effect to this ground of appeal.

Jury Vetting

[15]

The
    second ground of appeal focuses on the conduct of the police in vetting members
    of the jury pool for criminal records and outstanding criminal charges. Crown
    counsel at trial did not request these checks, knew nothing about them, and saw
    no results. As it turned out, the checks revealed no prospective jurors with
    criminal records or outstanding criminal charges.

[16]

The
    appellant contends that the practice of vetting jurors for criminal records and
    outstanding criminal charges, without more, amounts to an abuse of process,
    thus causing a miscarriage of justice and requiring a new trial.

[17]

We
    do not agree.

[18]

Assuming
    the admissibility of the fresh evidence about the police checks of prospective
    jurors, no
per se
rule elevates such conduct to the standard required
    to establish an abuse of process. These checks had no impact on the fairness of
    the trial. For jury selection, the playing field remained level.

[19]

This
    ground of appeal fails.

Conclusion

[20]

For
    these reasons, we dismissed the appeal.

Paul Rouleau J.A.

David Watt J.A.

S.E. Pepall J.A.


