R v Clifford, 2023 ABKB 169

Court of King’s Bench of Alberta Citation: R v Clifford, 2023 ABKB 169 Date: 20230322 Docket: 171225923Q1 Registry: Edmonton Between: His Majesty The King - and - Robert Dean Clifford _______________________________________________________ Oral Reasons for Judgment of the Honourable Justice N.E. Devlin _______________________________________________________ [ 1 ] Nichole Clifford was found dead in her home in Wainwright, Alberta, on the morning of February 24, 2017. Her estranged husband, Raymond Clifford, stands charged with her murder. He elected to be tried by judge alone.

These are my reasons for judgment in his trial. [ 2 ] The Clifford’s were married in 2010 and had two children. They lived and worked in Wainwright, Alberta. In messages to a friend shortly before she was killed, Nichole expressed that she had been unhappy in the marriage for some time. The couple separated immediately after New Year’s Day 2017. [ 3 ] Mr. Clifford moved into an aged travel trailer that was parked in the couple’s backyard. Early January was very cold and, as he later told police, Mr. Clifford could not get the trailer warm enough to inhabit comfortably.

Nichole invited him back into the house for a short period of time, but he departed again after tensions between the couple escalated. [ 4 ] The separation was not mutually desired. Nichole expressed to her friends that she was well and truly done with the marriage. Mr. Clifford wanted a reconciliation. He expressed this to her friends, who made it quite plain to him that his wife was finished with the marriage and that he needed to accept this fact. [ 5 ] Following separation, the couple’s relationship soured further. Mr. Clifford was charged with two criminal counts against Nichole on January 28th.

These alleged harassment and indecent communications between January 11-27. The terms of Mr. Clifford’s release on those charges prevented him from communicating with Nichole or going to the family home, where she which she continued to reside with their children. [ 6 ] Just over a week after these initial charges were laid, Mr. Clifford was arrested for breaching the terms of his January 28 release. When later interviewed by police, Mr. Clifford admitted that he had re-entered the residence and entered through a boarded-up basement window. The Court heard evidence, and Mr.

Clifford appears to acknowledge in the interview, that Nichole found him under a bed in the basement. He was subsequently arrested and charged with breaking and entering as well as breach of recognizance. Mr. Clifford spent eight days in remand following his second arrest before being granted bail. Upon being released, he returned to Wainwright and moved into a spare bedroom in the home of his friend Jason Skidmore. [ 7 ] As the charges predating Nichole’s death have never come to trial, and Mr. Clifford is presumed innocent, I take only two facts from these events: that the relationship between Mr.

Clifford and Nichole was causing her sufficient distress that she twice sought

police assistance and that Mr. Clifford was legally barred from going to the residence as of the end of January. [8] On the morning of the eighth day after Mr. Clifford’s release, Nichole did not come to work. Concerned friends went to herhome and found it locked and ostensibly empty, but with her truck parked outside. They called the police. Local RCMP officers attendedand summoned a locksmith. Police gained entry and a friend removed the couple’s two dogs.

Nichole’s purse, containing her cell phoneand other valuables, was found on the living room sofa just inside the front door, but she was nowhere on the main floor. [9] The door to the basement was locked. Police searched in vain for a key and ultimately forced it open. At the bottom of thestairs a sad discovery awaited them. Nichole lay lifeless on the floor, face up, with her head near to the bottom step. She was fullyclothed but covered in blood. There was obvious trauma to her chest, neck, and hands.

A number of items, including a leather belt, layproximate to her body. [10] The medical examiner determined that she had suffered 17 stab wounds in and around her neck and upper chest. At least twoof these injuries were fatal. He also found cuts and bruises on both of her hands, which had a good deal of her own blood on them. Thenature of the wounds led the pathologist to conclude that Nichole was most likely stabbed with a two-edged object, such as a pair ofscissors. The murder weapon was never found. [11] Mr. Clifford was charged with second degree murder at the end of the police investigation.

There is no issue that Nichole's death is a homicide, caused by the stab wounds she suffered on the night of February 23rd to 24th. The question I must determine in thistrial is whether the Crown has proven beyond a reasonable doubt that Mr. Clifford is the person who stabbed her. 1. The presumption of innocence and the Crown’s burden [12] This is a criminal trial and Mr. Clifford enjoys the presumption of innocence. He remains innocent unless the Crown proveshis guilt on each element of the offence beyond a reasonable doubt. That is an exacting standard of proof.

Proof beyond a reasonabledoubt falls much closer to absolute certainty than to satisfaction on a balance of probabilities. It is not sufficient that the Crown provethat the accused is likely guilty: R v Star, 2000 SCC 40 at paras 236 and 241-2. [13] As described by the Supreme Court in R v Lifchus, (SCC), [1997] 3 SCR 320, a reasonable doubt is a doubtbased on reason and common sense which must be logically based upon the evidence or lack of evidence. A reasonable doubt must notbe imaginary or frivolous.

Reasonable doubt cannot be based on sympathy or prejudice, nor do these form any part of the proof againstan accused person. [14] The onus of proving the accused’s guilt beyond a reasonable doubt lies with the Crown throughout the trial and never shifts.Mr. Clifford does not have to prove anything. In particular, he has no obligation to explain or justify anything, including circumstanceswhich may cast suspicion on him. [15] The presumption of innocence is displaced only when the evidence I do accept satisfies me of all the elements of the offencebeyond a reasonable doubt.

Where I am left with a reasonable doubt, arising from any evidence or the lack thereof, I must acquit. [16] As Mr. Clifford did not testify in his own defence, the analytical steps in R v WD, (SCC), [1994] 3 SCR 521do not apply in their traditional formulation. However, certain principles of that case and its progeny inform my analysis. Obviously, if Iam left with a reasonable doubt from any evidence, or lack of evidence, stemming from anywhere in the case, I must find Mr.

Cliffordnot guilty. [17] More specifically, however, he presented and emphasized certain evidence that he says points away from him as Nichole’skiller. This includes Mr. Latham’s direct evidence about meeting Mr. Clifford at 7-11 on the night of the murder, the nighttimesurveillance video from in-front of Nichole’s home, the evidence from and about Mr. Holte, and the evidence of Nicole’s conversationsand interactions with other men in the period preceding her death. Even if I do not believe or accept all or some of this evidence, or theinferences Mr.

Clifford urges me to draw from it, I must consider whether any of it nonetheless leaves me with a reasonable doubt. If itdoes, Mr. Clifford is not guilty. [18] Finally, rejection of this supposedly exculpatory evidence led by the defence, or the alternative possibilities for Nichole’sdeath it suggested, does not make Mr. Clifford’s guilt any likelier. Disbelief or rejection of evidence or explanations relied on by theaccused at trial does not assist the Crown is satisfying the burden of proof. [19] The case never reduces to an either-or decision between those alternatives and Mr.

Clifford being responsible for the killing.Rather, the Crown must prove Mr. Clifford’s guilt beyond a reasonable doubt, including negativing any reasonable alternativepossibilities arising on the evidence or the absence of evidence, or Mr. Clifford remains innocent and is entitled to an acquittal. 2. Principles governing cases based on circumstantial evidence [20] Because the evidence in this case is purely circumstantial, I follow the guidance of the Supreme Court in R v Villaroman,2016 SCC 33.

In that case, the Court elaborated on the application of the rule in Hodge’s Case and re-iterated the caution that aninference of guilt should be drawn from circumstantial evidence only where it is the only reasonable inference that such evidencepermits: Villaroman at para 30. [21] When assessing circumstantial evidence, the trier of fact should consider “other plausible theories” and “other reasonablepossibilities” that are inconsistent with guilt. The Crown’s burden extends to negativing reasonable possibilities consistent withinnocence.

It does not, however, have to “negative every possible conjecture, no matter how irrational or fanciful, which might beconsistent with the innocence of the accused”. “Other plausible theories” or “other reasonable possibilities” that are said to beexculpatory must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation: Villaroman at

para 37 . [ 22 ] In R v Dipnarine , 2014 ABCA 328 at paras 22 , 24-25, our Court of Appeal helpfully instructed that circumstantial evidence: … does not have to totally exclude other conceivable inferences.... It is still fundamentally for the trier to fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt in the mind[s] of that trier.....

Alternative inferences must be reasonable and rational, not just possible. [ 23 ] Simply put, unless the evidence I accept excludes, beyond a reasonable doubt, any rational innocent explanations for the suspicious circumstances said to prove the accused’s guilt, I must find him not guilty as the presumption of innocence will not have been displaced. 3. Discovery of the crime [ 24 ] Nichole spent the last evening of her life at the home of her friends Travis and Krista Perkins. She and her two children had dinner with the Perkins and their two children.

The couples stayed up and watched Grey's Anatomy, after which Nichole headed back to her house, leaving her children to sleep at the Perkins’ home, as she reportedly wanted to get a good night’s rest herself. [ 25 ] The Clifford residence was approximately a five-minute drive from where the Perkins lived. The Wi-Fi router in the residence – which will be discussed in much greater detail – shows Nichole’s phone reconnecting to it at 10:22pm. I find that this marks the moment of her final return home. [ 26 ] Krista Perkins texted Nichole at 10:26pm with a good night message. Nichole never responded.

The next morning, Krista sent a ‘good morning’ text at 8:10am and again got no response. At 8:48am she sent a follow-up asking “Are you ok”, followed an hour later by a message asking whether Nichole was ready for an impending staff meeting they were both to attend. [ 27 ] Nichole’s absence from that meeting caused Krista Perkins to drive to Nichole’s residence. She was met there by Laura Booth, another friend of Nichole’s who had been alerted to her being incommunicado. Krista and Laura found Nichole’s truck parked outside and the residence locked.

This prompted them to summon the RCMP who discovered Nichole’s body not long thereafter. [ 28 ] In the course of looking for the keys to the basement, Krista Perkins located Nichole’s purse on the couch in the living room. She testified that it was zipped up when she found it, with her phone inside. I accept this evidence. [ 29 ] The medical examiner could not give an opinion as to how long after her arrival home Nichole had been killed. 4. The Case Against Mr. Clifford [ 30 ] The Crown describes its case against Mr. Clifford as being built on four pillars: (

i) motive – being his refusal to except the demise of his marriage and potential anger at Nichole moving on; (ii) Mr.

Clifford’s DNA being found on a fingernail clipping taken from Nichole’s body and also on the blood-stained belt found beside her body; (iii) technical evidence from Nichole’s Wi-Fi router placing him at or near the residence for extended periods of time, including on the night of the murder; and (iv) after the fact conduct in the form of the false alibi he gave to police about his whereabouts on the night of the murder. [ 31 ] This case is somewhat usual in that there is relatively little conflict over the evidence. The basic outlines of the case are not in dispute.

Rather, the defence argues that the circumstantial evidence does do not establish proof beyond a reasonable doubt, especially when taken in conjunction with potentially exculpatory evidence it presented. [ 32 ] That said, I reviewed the entirety of the evidence in the course of preparing these reasons and will make specific findings of fact and credibility where required. [ 33 ] I will begin with the router evidence, as it relates to a number of facets of this case. 5. The Router evidence [ 34 ] Nichole Clifford had Wi-Fi in her residence.

Police accessed the router early in the investigation and were able to download its connection log from the morning of February 21 st through to the morning she was discovered. A compilation of that log forms a key piece of evidence in the case. It shows what devices were connected to the home Wi-Fi, and when, during the days leading up to Nichole’s murder and on the fateful night itself. [ 35 ] The useful range of home Wi-Fi service is restricted to the inside of the home and the outside area immediately surrounding it.

Therefore, when a device connects to the home router, there is a reasonable inference that that device, and its possessor, are nearby. In this case, only a handful of devices connected to the Clifford home Wi-Fi during the period for which the logs were recoverable. Of these, two are significant. The first is Nichole's iPhone. The timing of her arrival and departure from the residence maybe inferred from when her phone connected and disconnected from the router. I heard evidence that Nichole was attached to her phone and kept it with her, using it all the time.

I accept that evidence. [ 36 ] The second notable device is an Apple product with a Mac address ending in “1d:e4”. Portions of Mr. Clifford’s statement, text messages about his telephone service, a phone bill seized at the Skidmore residence, surveillance video showing Mr. Clifford’s whereabouts at certain times, and documents produced from Telus, Apple, and Facebook, combine to produce a powerful inference that this was Mr. Clifford’s phone and that he was using it during the relevant period. I draw that inference and find as a fact the “1d:e4” device was Mr.

Clifford’s phone and that he had it with him during the times under examination.

[ 37 ] Mr. Clifford’s phone first appears on the router logs at 10:19am on February 22, when it disconnected from the network. The corollary preceding connection occurred too far back in time to remain in the log when it was examined. Since the oldest entry in the log dates from 8:42pm on the evening of February 21st, the implication is that Mr. Clifford spent that entire night in, or very close to, the residence, leaving three hours after Nichole departed at around 7:15am. [ 38 ] Mr.

Clifford’s phone reconnected almost immediately at 10:20am and, with the exception of a short absence in the late morning, and another in the afternoon, it remained continuously connected to the house Wi-Fi until 11:16pm on the night of February 22. It then disconnected before reconnecting again at 1:15am on February 23, remaining continuously connected until 4:52pm that day. The implication is that Mr. Clifford overnighted in or near the residence for a second night in a row. [ 39 ] Mr.

Clifford’s departure from the residence at just before 5:00pm on the 22 nd correlates with him appearing at Wainwright Liquor a few minutes later and buying beer. This outing is confirmed by CCTV footage from the store and by a receipt found in the Skidmore residence. Mr. Clifford was then captured on a home security system walking from the liquor store to the Skidmore residence, and again outbound from that home an hour later. This correlates with his phone reconnecting to Nichole’s Wi-Fi at 6:22 pm on February 23.

Given the location of the video surveillance relative to Nichole’s residence, this is consistent with him walking to her place directly from the Skidmore home. [ 40 ] Mr. Clifford’s iPhone then remained connected until 11:08 pm that night, forty-six minutes after Nichole arrived home. Mr. Clifford’s phone then disconnected from the residence Wi-Fi and did not return. [ 41 ] The defence argued that the significance of the router evidence is diminished by the fact that Mr. Clifford could have been accessing it from the trailer in the backyard. I acknowledge the possibility that Mr.

Clifford spent some of this time in the travel trailer behind the house, where he had attempted to live immediately following the separation. [ 42 ] However, the evidence was that the trailer had proven too cold for habitation. One of the space heaters inside it was unplugged when the police examined it, as shown in the photographs. Time spent in the trailer would have been uncomfortable, cold, and boring.

It would have been dark, too, unless he wanted to risk detection by turning on lights. [ 43 ] There is no logical, fact-based explanation for what he would have been doing there, as opposed to inside the house, at these times. He was previously found hiding inside . Nichole and the dogs, who were his stated focus of interest, were inside the house. There was heat and a washroom inside the house. I find it extremely unlikely that Mr. Clifford spent much of the time he was in proximity of the Wi-Fi inside the trailer. 6.

The Beer can [ 44 ] The single beer can, of indeterminate provenance, found in the trailer says nothing about what Mr. Clifford was doing at the time of the murder. It is clear from the surveillance videos that Mr. Clifford carried the beer he bought on February 23 to the Skidmore residence. It is difficult to tell, but it does not appear that he was carrying that same case of beer when he returned to Nichole’s home. This does not exclude the possibility that he was carrying the can that was found in the trailer. Even assuming he was, that tells me little. Mr.

Clifford spent almost five hours on the night of February 23 in proximity of the router. As the photographs from the Skidmore residence showed, Mr. Clifford drank a lot of the beer in question. Accepting that he drank the can of beer found in the trailer, inside the trailer on the night of the murder still leaves hours of activity unaccounted for. [ 45 ] In the totality of the evidence, I do not find it to be a reasonable possibility that Mr.

Clifford spent the dozens of hours that he was in range of the Wi-Fi router in a freezing, dark trailer. [ 46 ] The router evidence gives rise to several inferences, which I choose to accept. First, Mr. Clifford habitually returned to the area of the residence and entered it repeatedly in the 48 hours preceding Nichole’s death, despite being under multiple legal orders that he not be there. Second, he spent prolonged periods of time there — indeed a preponderance of his time during the last days of Nichole’s life.

Third, he was present at the property when Nichole returned home from the Perkins’ on the night of February 23 and left permanently less than an hour later. [ 47 ] Conversely, the router logs show that Nichole spent little time at the home in the days leading up to her death. She appears to have stopped-in briefly in the morning before work and again after work. I infer this was to feed the dogs and change in and out of work clothing. She was not in the home for either of the two nights preceding her death, while Mr. Clifford was. 7. Motive [ 48 ] The Crown argues that Nichole was afraid of Mr.

Clifford and that his behaviour and messaging was consistent with someone unwilling to accept the end of his relationship with her. Mr. Mennie correctly points out that much of the evidence of Nichole’s alleged fear of Mr. Clifford came in the form of hearsay and was tainted by the obvious bias of its sources. I find that these accounts suffer diminished reliability due to these friends’ patent belief that Mr. Clifford killed Nichole. [ 49 ] I place little weight on the rather heightened descriptions of Nichole’s purported fear found in the testimony of Krista Perkins in particular.

Her response to Nichole’s failure to respond to her final series of text messages belies the level of concern she expressed in her testimony. [ 50 ] I further note that, on the evidence before me, Mr. Clifford did not utter any threats nor manifest any violence towards Nichole. [ 51 ] However, a portion of Krista Perkins’ evidence in this regard is not hearsay, as she was on the phone with Nichole during one of the incidents during which Mr. Clifford was found to be in the residence illicitly. She was also shown his hat and cigarettes under the

bed where he was purportedly hiding, and he appears to acknowledge the truth of the ‘hiding under the bed’ incident in his statement. I accept these portions of Ms. Perkins’ evidence. [ 52 ] There is also admissible evidence which I do accept that Nichole had safety concerns regarding concerns about Mr. Clifford. She was sufficiently troubled by Mr. Clifford’s behaviour towards her that she twice involved the police. She clearly had expressed some level of unease to her closest friends.

She spent a great deal of time, including many nights, with her friends, along with their children, despite that being a relatively cramped living arrangement. Doing so is consistent with her seeking a sense of safety, which is how those friends described the rationale for that arrangement and their acceptance of it. [ 53 ] This body of evidence alone is not of great significance. However, it combines with other objective evidence speaking to Mr. Clifford’s state of mind. First and foremost, he persistently returned to the residence.

He did so in breach of legal restraints which, by the time of his presence recorded on the router, had already landed him in remand for a period of time. [ 54 ] Mr. Clifford continued to return despite the virtual certainty that he would face a return to prison, with little prospect for further release, if caught there again. He continued to return to the house for extended periods of time, even overnighting there repeatedly. In his statement to police, Mr. Clifford referenced having gone to the house to take care of his dogs.

That explanation does not account for his prolonged presence. [ 55 ] He continued to return despite a confrontation with Travis Perkins. On one instance, Mr. Perkins ran him off the property and they had a verbal exchange in which Mr. Clifford said something to the effect of “this is my fucking house too”. I accept Mr. Perkins’ evidence about this part of that encounter. [ 56 ] When police searched the bedroom Mr. Clifford was inhabiting at the Skidmore residence, they found a wedding album lying enmeshed in the duvet on top of Mr. Clifford’s bed. It was his and Nichole’s wedding album. Mr.

Clifford continued to profess his love for Nichole to her friends and their acquaintances, despite those people politely replying that the relationship was over, and she had moved on. In the days before her death, Mr. Clifford messaged Laura Booth a complaint that Nichole was withholding their children from him. [ 57 ] In short, Mr.

Clifford’s repeated and prolonged presence at the residence, seen in light of the risks he ran by going there and his collateral behaviour, is only explicable by him having a near-obsessional focus on their relationship and its demise, and on being near Nichole, including monitoring her activity. [ 58 ] Only one person was shown by the evidence in this trial to have an obsessional and transgressive focus on Nichole and her home: that person is Mr. Clifford.

As the Supreme Court noted in R v Griffin , 2009 SCC 28 at para 61 , “the state of the relationship between a deceased and an accused in the time period leading up to the former’s murder has been recognized as probative of the issue of motive.” I find that Mr. Clifford’s behaviour and state of mind, as manifested towards Nichole and reflected in her behaviour, is circumstantial evidence pointing towards him as the person responsible for her violent death. 8. DNA Evidence [ 59 ] The police collected samples and conducted DNA analysis on numerous items found on or near Nichole’s body and elsewhere.

Two findings are significant. Specifically, Mr. Clifford’s DNA was found on one clipping of Nichole’s blood-stained fingernails and on the blood-stained belt found inches from her face. [ 60 ] I appreciate that DNA analysis is presented in terms of an exclusionary probability, rather than as a definitive match, but the results in this case leave no real possibility that a donor other than Mr. Clifford was the source of the relevant samples, nor was this suggested. [ 61 ] The DNA evidence gives rise to an inference that Mr. Clifford was present at the events of Nichole’s death. Mr.

Mennie resists this inference on the basis that the presence of Mr. Clifford’s DNA is, at least to the level of reasonable doubt, potentially explained by transfer from objects he had touched while living in the residence. He relies on the DNA expert’s acknowledgment of this as at least constituting a theoretical possibility to argue that the DNA evidence has no real probative value.

Despite the skill with which he made this submission, I cannot agree. [ 62 ] It was obvious from the substance and manner of the expert’s testimony that he was not in the least attracted to the possibility of innocent transfer being the source of the two relevant samples in this case.

He referred to the state of the literature on DNA transfer, which casts doubt on the likelihood of transfer being the source and testified that, despite the absolute quantities of genetic material having been recovered being minuscule, these amounts were significantly larger than what might be expected in instances of incidental transfer. [ 63 ] In this regard, I note that, despite visible quantities of blood being found on Nichole’s hands and the belt, the quantity of her genetic material detected in these samples was not vastly greater than that of Mr. Clifford.

For instance, though Nichole’s fingernails were covered in blood, Mr. Clifford’s DNA constituted approximately 10% of the genetic material recovered from one of them. In absolute terms, the expert quantified the amount involved as “a significant amount of DNA.” [ 64 ] On the belt, Mr. Clifford’s DNA comprised approximately 12% of the genetic material found, despite it also being covered in Nichole’s blood. The expert testified, and I accept, that the amount of Mr.

Clifford’s DNA found on the belt was not consistent with a dry transfer, such as from handling. [ 65 ] I accept the DNA expert’s evidence that the quantity of Mr. Clifford’s genetic material recovered in these samples, though infinitesimal in absolute terms, was far above detection thresholds and not consistent with what might be expected from incidental transfer per the relevant scientific literature. On the belt, more than seven times the amount of Mr. Clifford’s DNA was found than the expert testified would be expected in secondary transfer. With her fingernail, fourteen times this amount was found.

[ 66 ] Finally, I note that there were two separate instances of Mr. Clifford’s DNA located in places directly associated with the events of Nichole’s death. These points of evidence lead me to find, as a starting point, that innocent transfer is an unlikely source of this DNA. [ 67 ] A number of contextually specific facts exclude the innocent transfer explanation. To begin with, accepting the inferences available from the router evidence, Nichole appears to have spent very little time in the home in the 48 hours preceding her death. Her opportunity to pick up stray DNA from objects upon which Mr.

Clifford may have left it weeks earlier was fleeting. [ 68 ] Second, if Nichole was acting in anything resembling a normal fashion, she would have washed her hands, if not her whole body, numerous times over a period wherein she had minimal opportunity to pick up not-insignificant amounts of Mr. Clifford’s DNA on or under her fingernail. [ 69 ] I note that, in this respect, I place no weight on Ms. Perkins’ testimony that she specifically remembered seeing Nichole wash her hands at their house on the night of the murder. While it is objectively likely that she did, I do not accept this part of Ms.

Perkins’ evidence as it seemed contrived. [ 70 ] Third, unlike with the belt, there is no possibility whatsoever that Mr. Clifford could have handled Nichole’s nail at some point in the past to leave his DNA there innocently. Any transfer to it would have had to come from her touching an intermediary object he had touched before. Yet, this was the location at which the greatest amount of Mr. Clifford’s DNA was found. [ 71 ] Fourth, the circumstances of the belt also make it less likely that Mr. Clifford’s DNA was on it was the result of innocent transfer.

While the house was not fastidiously kept, the belt lying beside Nichole’s body was visibly out of place and context. The photos of the basement do not show general articles of clothing strewn about on the floor. The belt stands out. It also lay directly at the foot of the stairs, right where someone using those stairs would step on it. It is an objectively unlikely place for an object to be left to lie for any length of time. [ 72 ] Rather, the belt lay inches from Nichole’s body, with her blood on it, as shown by the DNA testing.

There is an overwhelming inference that it was involved in the events surrounding her death. I draw that inference. The presence of Mr. Clifford’s DNA on that belt, in the quantities found, is factually significant. [ 73 ] Had only the belt contained Mr. Clifford’s DNA, I would have had greater pause as to whether a reasonable possibility existed that this DNA could be explained by Mr. Clifford’s handling of the belt at a past point in time. The fingernail sample is much more convincing.

Nichole had very limited opportunity to pick up a secondary transfer in the days preceding her death, and effectively no opportunity in the hours between her leaving to have dinner at the Perkins’ and her return to the home. The fingernails are also the most natural place to find DNA from a struggle. The amount found there was an order of magnitude greater than what is typical of transfer. [ 74 ] From my weighing of all the DNA evidence, including a close review of the expert’s testimony, the only reasonably plausible explanation for the presence of these samples is that Mr.

Clifford was in proximity to, and in contact with, Nichole at the time of her death. 9. After the fact conduct [ 75 ] Mr. Clifford lied to the police and gave a false alibi for his whereabouts during the window of time in which Nichole was killed. During his lengthy interview with them on February 25, he told investigators he had been at his parent’s farm in Edgerton on the evening of February 23. This was untrue. There is no dispute that he told this lie.

This could give rise to an inference that he was seeking to avert suspicion from himself due to consciousness of guilt. [ 76 ] The defence points out that the lie in question was a continuation of a lie first propagated by Mr. Clifford’s father, Barry Clifford, when the police phoned their farm looking for the accused on the evening of the 24 th . The lead investigator, Sergeant Creaser, spoke on the phone with Barry Clifford, and asked to speak with the accused. Barry Clifford refused, in particular when he learned that it was a police officer, or “a dirty pig” as he called them, on the phone.

He explained his enmity towards the police on the basis that they “lie through their teeth” and thought that “they were going to come back with another list of charges” against his son and were “trying to hang him with something else he didn’t do.” [ 77 ] Sergeant Creaser eventually told Barry Clifford that Nichole was deceased. Upon learning this, Barry Clifford told Sergeant Creaser that his son had been at the farm since earlier on the 23 rd . In Court he admitted that this was untrue.

He testified that his son was listening to the call between himself and the police on a speaker phone as it was happening. [ 78 ] In cross-examination, Barry Clifford admitted that the accused had arrived at the farm on the afternoon of the February 24, the day Nichole was discovered, and not the previous evening. He candidly admitted that he had lied to the police about Mr. Clifford’s whereabouts. He was impeached on the variability of when he said his son had actually arrived. [ 79 ] The next day, February 25, Mr.

Clifford and his parents came to the Wainright RCMP detachment as requested and spoke with investigators. In the course of an interview with the police, the accused both repeated the lie that he had been at his parents’ house on the night of Nichole’s death and further embellished it with significant fabricated detail about his comings and goings. [ 80 ] In order for the false alibi to form positive evidence against Mr. Clifford, two hurdles must be overcome.

First, the alibi must not merely be disbelieved, it must be found to have been a fabrication, based on independent evidence showing its falsity: R v Trocym , 2007 SCC 6 at 172, citing R v Hibbert . In this case there is no dispute that the alibi offered by Mr. Clifford was false and fabricated. His father admitted it and the router evidence proves it. [ 81 ] The second issue is the one of greater concern. As with all circumstantial evidence, for this after the fact conduct to be taken as circumstantial evidence of guilt, it must not be bearing another innocent explanation unrelated to the accused’s involvement in

Nichole’s death, such as avoiding liability for some other culpable act: R v Calnen, 2019 SCC 6 at para 117, and R v White, (SCC) at para 27. [82] I also remind myself that Mr. Clifford does not have to explain his lie or provide an innocent explanation. Rather, I must besatisfied that the false alibi supports only an inference of guilt with respect to the crime Mr.

Clifford is on trial for, being Nichole’smurder, rather than another one — in this case being further breaches of his recognizance barring his attending at Nichole’s home —before I rely on this conduct as circumstantial evidence of guilt: White at paras 23-26. [83] Mr. Mennie argues that Mr. Clifford staying consistent with the version of events he had heard his father tell the police on thephone hours earlier can be explained both by his desire not to implicate his father in obstruction and concern over his own jeopardy forbreaching the conditions prohibiting him from going to the residence.

This ambiguity in the potential motives for the false alibi, hesubmits, robs it of its probative value in accordance with the principles enunciated above. [84] While there is some force to these arguments in the abstract, three specific facts satisfy me that the false alibi Mr. Clifford gave to the police on February 25 can be explained only by reference to his desire to avoid being implicated in Nichole’s murder: R vArcangioli, (SCC) at para 145. [85] First, when Mr. Clifford lied to the police, he knew that he was not being investigated for breaching his release conditions.

Heknew that the conversation was exclusively about Nichole’s murder. The reasons the police wanted to speak with Mr. Clifford weremade explicit to him by Sergeant Sloan even before the interview began. [86] Moreover, in his first words to Mr. Clifford, Sergeant Creaser also made clear that the discussion was about Nichole’s death,saying: … what’s very important to us is ensuring that — and I’m sure it is to you — ensuring that what happened to Nichole, that we sort outwhat happened and, mostly what happened and why it happened. OK? How it happened and who, who is ultimately responsible.

OK?And that’s, that’s our job here is just to get to the truth. OK? [87] Sgt. Creaser went on to caution Mr. Clifford that, “anything that you say to us, could be used against you or any other personwho is charged with Nichole’s murder.” Later on in the interview, when Mr. Clifford was talking about why he had gone back to theresidence in contravention of his conditions, Sergeant Creaser emphasized to him that: …(a)nd again, I’m not investigating a breach of recognizance here, I’m investigating Nichole’s murder. [88] In short, Mr.

Clifford could not have been under any illusion as to what the police were talking to him about and why. Heplainly knew the conversation in which he lied about his whereabouts concerned Nichole’s murder and not any other lesser misconduct. [89] Second, and most significantly, Mr. Clifford’s false alibi did not consist of a passing reference to him having been at hisparents’ farm. The police asked him for a detailed

summary of his whereabouts on the day of her death. Mr. Clifford responded by speaking at great length, and in great detail, about what he supposedly had done on February 23rd and 24th. His false statements includeddetails about his route, stopping to buy cigarettes, remembering times from the clock in the vehicle he was driving, pulling the axle outof the rear end of a truck with his dad later that day, buying gas, his supposed return route to Wainright, and a stop at 7-11 to buy aprepaid TELUS card. [90] While some of these details may have occurred at some point in Mr.

Clifford’s unknown movements, their presence inconjunction with, and in support of, the false alibi made it a rich and thought-out lie. This is far more consistent with a considered desireto avoid suspicion on the murder he was discussing with the police than with avoiding a minor breach allegation that the police haddisclaimed any interest in. [91] Third, and of less importance, Mr. Clifford did not only lie to the police about his whereabouts. He also told a different butsimilar lie to Elizabeth Payne, who appears to be his aunt. Unlike the police, Ms.

Payne was neither in a position to charge him for abreach of recognizance, nor to cause his father trouble for having obstructed their investigation. His lie to her could serve no purposeconnected to either his own jeopardy for bail breaches or his father’s jeopardy for obstruction. It makes sense only in relation todeflecting suspicion from himself about what happened at the residence that night. [92] For all of these reasons, I find that Mr. Clifford’s fabrication of an elaborate false alibi for the night of the murder providescircumstantial evidence of his involvement in that crime.

Taken on its own, this evidence is not particularly significant. Taken in thetotality of the case, it adds a further building block discounting other explanations for Nichole’s death. 10. Tyler Holte [93] The defence called Tyler Holte, a young man with developmental challenges who had known Nichole as his social worker. Atthe first trial on this matter, Mr. Holte told the Court that he had gone past Nichole’s residence around 11:00 pm on the night of themurder and felt that something was wrong. This was the first time he had told anyone this.

He somewhat adopted this former testimonyand agreed with a question asking if he has been to her house on the night of the February 23. He also agreed that he had quite a fewhomemade knives. [94] For these reasons, the defence offered Mr.

Holte as an alternate suspect, arguing that his presence at the residence at thecrucial time should leave the Court with a reasonable doubt as to who was responsible for Nichole’s death. [95] Having encountered Tyler Holte as a witness, I find that there is no chance he had the wherewithal commit this crime whileleaving no trace of his entry or presence in the residence, nor to successfully lie about it afterwards. While certain of Mr. Holte’sstatements come across as lucid and functional, his cognition was limited, literal, and linear. He struggled with any form of abstract

question and the contingencies put to him. He did not appear capable of guile of any degree. Mr. Holte’s evidence did not raise any reasonable doubt that he could be Nichole’s killer. [ 96 ] The quality of his memory was very weak, and the impression given by his tone and demeanor in agreeing with questions about the night of the 23 rd left me with considerable doubt that he was doing more than agreeing with what was put to him. His evidence was rambling and confused. He had great difficulty locating events and questions temporally. [ 97 ] I find that Mr.

Holte likely did not pass the residence on the night of the murder, but on some other night. Specifically, I accept his evidence that, on the night he walked past the residence, his sense that something was wrong stemmed from the fact that the vehicle parked in front of the residence was distinctly different than Nichole’s truck. He gave a detailed description of it. In cross- examination he testified that Nichole’s black truck was not there, “just a grey one”.

He was familiar with Nichole’s vehicle from her role as his social worker. [ 98 ] The presence of this other vehicle, instead of Nichole’s, would preclude Mr. Holte’s self-reported presence having been on the night of the murder when her truck was for certain parked outside. Thus, I find it likely that Mr. Holte walked past the residence on a different night and correlated this to the news of her death in a way that made him think it was on the night in question. [ 99 ] I also note that Mr. Holte’s very first reference to his presence at Nichole’s house involved him having heard about her death.

Asked if he had been to Nichole’s house previous to the month of her death, he immediately appeared to start talking about the nighttime walk-past, saying: I was only there on the — around 10 or 11. I can’t remember the time. But I was at a friend’s house, and then I heard about this thing happening , and I phoned and no one answered. [ 100 ] When understood in terms of the rest of his evidence, this sounded a lot like Mr.

Holte remembering having heard about Nichole’s death before he walked down her street at night. [ 101 ] In any event, he had difficulty remembering what day it was that he walked down the street. All of this is consistent Mr. Holte having passed Nichole’s house on a night other than February 23. Simply put, I don’t think it at all likely that he passed her house on the night she died. [ 102 ] For completeness, I also note that the medical examiner’s opinion was that Nichole was stabbed with something that resembled scissors, not a single edged weapon. This dilutes the probity of Mr.

Holte’s affinity for knives as evidence that he may have harmed her. [ 103 ] My consideration of all the evidence concerning Mr. Holte, including his physical and verbal presentation in Court, does not support him as an alternate suspect and I am not left with any doubts that he may have been responsible for Nichole’s death. 11. The Nighttime Surveillance Video [ 104 ] Security footage from the house across the street from Nichole’s residence recorded a shadowy figure moving from behind Nichole’s truck and away down the street from the residence at just after 1:00am on February 24.

This is some hours after I find Nicole to have been killed. The figure is not seen walking up to the truck, and the inference is that it came from Nicole’s residence. The defence argues that this was likely the real killer. Nothing can be discerned about this person’s dress or appearance from the grainy, low- definition nighttime video. [ 105 ] The identity of this figure stands as an unexplained fact. The question is whether it leaves me with a reasonable doubt as to Mr. Clifford’s guilt. [ 106 ] I find that the video is ultimately neutral evidence that points neither towards nor away from Mr.

Clifford, or anyone else, as the killer. The fact that Mr. Clifford’s phone did not reconnect to the router in conjunction with the video does not assist in excluding him. His iPhone was never found. There is no suggestion that Nichole’s murder was premeditated. Coming back to the house after having killed Nichole would have engaged an entirely different thought pattern in Mr. Clifford than his previous forays to the property. It would make sense for him not to have brought his phone if he returned to the house. [ 107 ] Mr.

Clifford returning to the scene for whatever reason is as consistent with the video as the footage depicting someone else. For this reason, I find it of little ultimate probative value. It does not raise a reasonable doubt in my mind. If anything, the fact the house was found locked, with no apparent signs of forced entry, is more consistent with Mr. Clifford having returned to the scene, as he is the only suspect who could easily have had a key. As it is, I derive nothing probative of Mr. Clifford’s guilt or innocence from the video. 12.

Nichole’s Internet Contacts [ 108 ] Nichole was active on dating sites and was ‘sexting’ with various individuals. There were, however, no plans for her to meet anyone on the night of the murder, no evidence that any of these correspondents knew where she lived, and no evidence that any of them had any reason to harm her. No reasonable doubt as to the identity of Nichole’s killer arises from this facet of the case. 13. Mr. Latham’s Evidence of Meeting Mr. Clifford in 7-11 [ 109 ] The final and most significant piece of evidence relied upon by the defence is the testimony of Mr.

Don Latham, a longtime resident of Wainwright and one of Mr. Clifford’s School teachers. Mr. Latham testified that he ran into Mr. Clifford at the 7-Eleven while he was checking his lottery tickets somewhere “between 10:45 and 10:30pm” on the night of February 23. He described in some detail conversing with Mr. Clifford and recalled him being somewhat less engaged than usual and being in a hurry. He also gave a

different description of Mr. Clifford’s clothing than was seen on the surveillance videos of him earlier that evening. [ 110 ] This evidence would cast doubt on whether Mr. Clifford could have been at Nichole’s residence committing this crime. Both a police witness and I reviewed the surveillance video from 7-Eleven that evening. Neither Mr. Latham nor Mr. Clifford appears in that video. [ 111 ] A video of the following night, February 24, was also entered into evidence. It showed Mr. Latham in the store and also engaging in an extended conversation with two individuals, neither of whom was Mr.

Clifford. [ 112 ] Mr. Latham agreed that he subsequently gave the police a receipt for his purchase from 7-11 on the evening of the 24 th . He did not recall speaking to anyone in the store on the 24 th , but the video clearly shows in him conversation with a young couple that night. In evidence before me, he insisted that the conversation with the couple was on the 23 rd , the same night he saw Mr. Clifford. The surveillance video says otherwise. It shows Mr. Latham in conversation with the couple on the evening of February 24. [ 113 ] Mr. Latham was cross-examined on his statement to police on March 1, 2017.

He was confronted with having told police that he had been in the store around 9:30-11:00pm to purchase cigars. He then said he recalled it being between 10:45 to 10:30pm. He seemed quite confused. He then told the Court he stopped work around 9:00pm that night. He then referred to his logbook from work as the source of his memory. It was clear he had little direct personal memory of the timing. [ 114 ] Mr. Latham was also confronted with having given a different version of whether he or Mr.

Clifford entered the store first on the night in question and appeared to change his evidence to conform with his earlier statement. [ 115 ] The Crown then reminded Mr. Latham that he had told the police in 2017 that he had arrived at 7-Eleven at between 9:00, 9:30, or perhaps 10:00pm. He attempted to summon a recollection but had difficulty. [ 116 ] Mr. Latham expressed a clear memory that Mr. Clifford looked like he had just gotten off work because he was wearing dirty work clothes, specifically coveralls. As mentioned, this was not consistent with the clothing Mr.

Clifford was seen in few hours earlier. [ 117 ] Mr. Latham was also effectively cross-examined on inconsistencies in his version as to the length of his conversation with Mr. Clifford. He struggled when it was put to him that he really did not know what time he remembers entering the store, finally saying that he couldn’t really give the right time. [ 118 ] He was taken to evidence from the first trial where he agreed that he could not really be sure whether he was in the store in the 23 rd or the 24 th and had testified that he was having “second doubts” as to whether it was the 23 rd or the 24 th .

He acknowledged having given this evidence. However, he was now positive that it was the 23 rd on account of his memory of the logbook he kept returning to. [ 119 ] I mean no disrespect, but certain aspects of Mr. Latham’s evidence and demeanor left me with the impression that he was suffering some degree of cognitive diminishment. Beyond this, his evidence about the time and date of his encounters in the 7-Eleven was entirely unreliable.

He admitted to previously having been upset and uncertain which day the events he was describing took place. [ 120 ] Moreover, surveillance video from the 7-Eleven contradicts Mr. Latham’s evidence. He is not seen in the store’s security footage on the 23 rd . He is seen there the following night, in conversation with the couple he described. Mr. Clifford, however, is absent. [ 121 ] I do not accept Mr. Latham’s evidence about a meeting with Mr. Clifford on February 23, nor does it leave me with a reasonable doubt. 14.

Conclusions [ 122 ] While the medical evidence was unable to pinpoint Nichole’s time of death, there are a number of strong circumstantial indicators that the fatal incident took place soon after her return home. The background context surrounding her return includes her professing a desire for a good night’s sleep. I accept that she said this. This statement, while hearsay, validly describes her state of mind on this issue. It is also consistent with her having to work the next day.

She was, in fact, needed and expected at work first thing in the morning and it was her absence that prompted her friends’ concern. [ 123 ] More specifically, I find that her purse with her phone in it remained zipped-up on the couch in the front room. This is a logical place for it to have been put down immediately upon her return. However, the fact that her phone remained in her purse suggests she was not active in the house for long. Nichole’s messaging records show her to be a consistent texter. This corroborates Krista Perkins’ testimony that Nichole usually had her phone in hand.

I accept that piece of her testimony. [ 124 ] I find that it is unlikely that Nichole would have left her phone unattended for any significant period of time while awake and active at home. She did not reply to Krista’s goodnight text, which arrived four minutes after her phone reconnected to the residence router. These facts are consistent only with Nichole not having retrieved her phone again after re-entering her home. [ 125 ] Nichole was also still fully dressed in casual clothing.

She had returned home briefly after work and before heading to the Perkins’ for supper, and it is reasonable to infer she went to their house in casual clothing. Ms. Perkins attempted to remember and describe her clothing that night and her recollection included the black pants Nichole was found in. I find that her description as to what Nichole was wearing as a top was mistaken.

She visibly struggled around that evidence. [ 126 ] It makes no sense that, it being late and her having professed a desire for sleep, Nichole would have changed into an alternate but very similar outfit between getting home and going to bed. Thus, I find that Nichole was discovered in the clothing she returned home in that evening. It follows that she had not gotten far enough into her bedtime routine to change into sleepwear before being accosted and killed. This is consistent with her never having taken out her phone after entering her house.

[ 127 ] This complex of evidence gives rise to a singular inference that Nichole died shortly after getting home. I draw that inference. I find that Nichole was accosted and killed very shortly after she returned home at 10:26pm on February 23. I find that her assailant was most likely already inside the house, there being no signs or struggle or forced entry. [ 128 ] The lack of a struggle upstairs is consistent with Nichole finding Mr. Clifford in the basement, where he had been illicitly hiding before. Mr.

Clifford’s presence in proximity to the router when Nichole returned home, coupled with his departure shortly after the time the facts suggest she was killed, never to return, thereby breaking with his established recent pattern, also says that he was inside the house when Nichole came home and was involved in the fatal encounter. [ 129 ] The idea that Mr.

Clifford was resting in the trailer, oblivious to the wife he was obsessed with being murdered savagely yet inexplicably by an unknown and undetectable stranger only a few yards away, and then coincidentally left not long after the mystery killer was done, never to return with his phone, but his DNA somehow ended up on her fingernail on a hand with defensive wounds while the killer’s did not, is not a reasonable or plausible proposition. [ 130 ] Both the router evidence and the DNA independently satisfy me that Mr. Clifford was in the basement when Nichole died.

Taken together, in the context of all the evidence, they make that conclusion overwhelming. [ 131 ] The killing itself was brutal, angry, and personal. I find that the type and level of violence wrought upon Nichole was consistent only with a significant emotional drive underlying it. This points strongly to Mr. Clifford. Nichole’s wounds bespeak exactly the sort of intensely disordered emotionality and decision making he was manifesting.

No other person was shown on the evidence to harbour a scintilla of ill will against Nichole, much less any other person with apparent access to the home and a fixation upon her. [ 132 ] The nature of her injuries also satisfies me beyond a reasonable doubt that the person who inflicted them intended to cause her death, or knew they were likely to cause her death and proceeded to inflict them anyway. While the defence did not argue that this was not murder, the burden remains on the Crown to establish the subjective elements of intention necessary for second degree murder under

section 229 of the Criminal Code . [ 133 ] I am satisfied it has done so beyond a reasonable doubt. This many stabs to the chest and neck area with an edged weapon are consistent only with an intention to cause death or an indifference to the knowledge that they likely would. [ 134 ] The totality of the evidence in this case is consistent with only one possibility: Mr. Clifford was in the residence when Nichole returned home. She either found him or he confronted her. This happened almost immediately upon her return. An angry confrontation occurred. The belt was used in some way. Mr.

Clifford’s emotion and anger reached a crescendo and he stabbed Nichole with some item that was at hand. He stabbed her over and over. She tried to defend herself. In the process she got some of his tissue under her fingernail. In the course of the struggle his DNA and her blood got on the belt. [ 135 ] Nichole collapsed dying where the struggle occurred. Mr. Clifford locked the house and left. At some time, he fled to his parents’ farm.

He lied to the police to attempt to avoid suspicion. [ 136 ] On all of the evidence, I am satisfied beyond a reasonable doubt that Robert Clifford killed Nichole Clifford on February 23, 2017. [ 137 ] Mr. Clifford please stand. On the sole count on the indictment, murder in the second degree, I find you guilty. Oral Reason for Judgment given on 13 th day of January, 2023. Dated at the City of Edmonton, Alberta this 22 nd day of March, 2023. __________________________ N.E. Devlin J.C.K.B.A. Appearances: Jeff Rudiak, KC for the Crown Curtis Mennie for the Robert Clifford