2019 QCCA 856, 2019 QCCA 856

Hester c. R. 2019 QCCA 856 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-10-003324-170 (640-01-020495-108) DATE: MAY 13, 2019 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. JULIE DUTIL, J.A. ROBERT M. MAINVILLE, J.A. WILLARD HESTER APPELLANT — Accused v.

HER MAJESTY THE QUEEN RESPONDENT — Prosecutrix JUDGMENT [ 1 ] The appellant, Willard Hester, appeals a jury verdict rendered on December 10, 2016 which found him guilty of the following charge: On or about July 24, 2010, in Chisasibi, district of Abitibi, did cause the death of Aaron Bearskin, committing thereby a manslaughter, the indictable offence provided by sections 234 and 236b) of the Criminal Code . [ 2 ] The appeal was heard on April 8, 2019 in Quebec City and the matter was taken under advisement. [ 3 ] For the reasons of Mainville, J.A., with which Rochette and Dutil JJ.A. concur, THE COURT: [ 4 ] DISMISSES the appeal; [ 5 ] ORDERS the appellant to present himself to the police authorities within 72 hours of this judgment so that his sentence may be carried out.

LOUIS ROCHETTE, J.A. JULIE DUTIL, J.A. ROBERT M. MAINVILLE, J.A. Mtre Ratha Heang RATHA HEANG, AVOCAT For Appellant Mtre Geneviève Lamontagne DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES For Respondent Date of hearing: April 8, 2019

REASONS OF MAINVILLE, J.A. [ 6 ] On December 10, 2016, the appellant, Willard Hester, was found guilty by a jury of the following charge: On or about July 24, 2010, in Chisasibi, district of Abitibi, did cause the death of Aaron Bearskin, committing thereby a manslaughter, the indictable offence provided by sections 234 and 236b) of the Criminal Code . [ 7 ] The verdict is appealed on two grounds. First, the appellant submits that the trial judge should not have admitted into evidence his videotaped interview with the police. Second, he puts forward that the jury’s verdict was unreasonable.

THE ADMISSIBILITY OF THE VIDEOTAPED INTERVIEW [ 8 ] The appellant and the victim were friends and members of the Cree Nation of Quebec. At the time of the events leading to the charge, they were both residing in the Cree community of Chisasibi, near the coast of James Bay. [ 9 ] On the evening of July 23, 2010, they were drinking alcohol and consuming cocaine together with three other persons: the appellant’s spouse, Tina House, and two friends, Lucy Salt — who is also Tina House’s cousin — and Cindy Neacappo.

The party was held at the appellant’s house in Chisasibi and continued throughout the night. [ 10 ] In the early morning of July 24, 2010, the victim, Aaron Bearskin, was seen standing between the kitchen and the dining room of the house, with blood streaming from his chest. A knife was on the dining room floor. The police were called by Lucy Salt at approximately 04:26 that morning.

The police officer who answered the telephone call, George Shem, testified at the voir-dire [1] and at trial [2] that he was told the victim had been stabbed by the appellant, who had then fled the scene. [ 11 ] Two police officers from the local police, George Shem and Nicolas Sheridan, arrived at the scene shortly thereafter. They found the victim unresponsive, tried to reanimate him and sought medical assistance from the local hospital. The victim was brought to the hospital and pronounced dead that morning.

The subsequent autopsy report concluded that his death was the result of a stab to his thorax by a sharp and pointed instrument, most likely a knife. [ 12 ] The appellant had fled the scene, but had returned close to his house when officers Shem and Sheridan had arrived. He was only wearing jogging pants. His upper body and his feet were bare. The officers immediately placed him under arrest at around 04:50, but he resisted. After subduing the appellant, they informed him he was under arrest for attempted murder and read him his rights.

They brought him to the local police station where he was incarcerated pending the arrival of investigators from the Sûreté du Québec. [ 13 ] The appellant was placed in a cell around 05:15. It was equipped with a toilet and sink as well as with a mattress which lay on the floor. At around 06:00, police officer Evan Sernoskie informed the appellant of the death of the victim. He was then arrested anew for murder and once again read his rights. The appellant identified a lawyer he wished to talk to, and a message for this purpose was left on the answering machine at the lawyer’s office.

At approximately 10:50, the appellant was transferred to another cell which had a bed, a toilet and a sink. [ 14 ] In the late afternoon of July 24, 2010, at around 17:29, the appellant had an 11-minute private telephone conversation with the lawyer he had identified, after an investigator from the Sûreté du Québec, Daniel Prieur, had been able to finally reach that lawyer. [3] [ 15 ] The video interview with the appellant was conducted by officer Prieur. It started at approximately 20:15 on July 24, after the appellant had been given an opportunity to sleep and to sober up.

It lasted until approximately 04:00 on July 25, 2010. It was characterized by long breaks. The appellant maintained throughout the interview that he had little or no recollection of the events or of his arrest. He acknowledged that he had been on a drinking binge. He was unable to answer questions as to how the victim had been stabbed. He did, however, acknowledge remembering that the victim had kissed his wife during the evening and that he had fled the scene after seeing the victim covered in blood. [ 16 ] The admissibility of this videotaped interview was challenged.

The defence recognized that no direct threats or promises had been made to the appellant and that his state of mind during the interview was not at issue. [4] The defence claimed, rather, that the appellant had suffered oppression resulting from his conditions of incarceration and the manner in which the interview had been conducted, implying police trickery, thereby rendering his statements involuntary and unreliable. [ 17 ] A voir-dire was held on November 7, 8, 9, 10 and 14, 2016 before the Honourable Mr. Justice Guy de Blois of the Superior Court.

At its conclusion, the trial judge authorized the introduction of the videotaped interview to the jury. Written reasons were issued on November 18, 2016, setting out the following analysis by the trial judge: [5] [25] The interrogation began later at around 20:15 after Mr. Hester had slept and had dinner. [26] It was conducted by an experienced investigator with courtesy without any promise or threat. Also, no police trickery or invalidating techniques were used by the investigator.

The accused was given coffee, water, food and access to a toilet during the interrogation. [27] The court also concludes that the investigator did not fabricate evidence in order to obtain a confession. If inducement there was, it was very mild and certainly not sufficient to render the interrogation not voluntary.

[28] Also, as admitted by the prosecutor, Mr. Hester never confessed the alleged crime during the entire interrogation. [29] As for the detention conditions of the accused on July 24, they were minimal but not so insufficient as to invalidate the interrogation. [30] Those conditions could have been improved. Instead of incarcerating him in cell n° 4 where there was no bed but only a mattress, sink and toilet, he could have been put in cell n° 1 which was better equipped. [31] But around 10:50, Mr. Hester was transferred to cell n° 1 where he was provided with a blanket and could sleep.

When he asked for water, food and a t-shirt, he was given those items without delay. They could have been offered to him earlier, but the evidence shows that everything Mr. Hester asked for was provided to him. [32] Defense refers the Court to R. v. Chapple and argues that the facts surrounding the interrogation of Mr. Hester are similar to that case. Defense says that the accused was victim of oppression just like in Chapple . [33] With respect, the Court does not share that

interpretation. As mentioned before, even though the interrogation lasted almost eight hours, it was conducted with courtesy, dignity and patience. [34] The attitude of the accused during the interrogation demonstrates that he was treated with respect. The investigator:

a) did not interrupt Mr. Hester when he spoke;

b) did not force him to answer;

c) did not denigrate legal advice;

d) did not use deceit;

e) did not use emotional photos; [35] The few suggestions made did not bring the accused to be confused or broken by the interrogation. [36] All Mr. Hester’s answers were given freely and voluntarily.

The investigator has not “escalated the accused’s moral culpability”. [37] The Court is of the opinion that the investigator, even though the interrogation lasted a long period, did not use “excessively aggressive, intimidating questioning which created an atmosphere of oppression that caused the accused’s free will to be overborne”. [38] Accordingly, the Court concludes that the prosecution has proven beyond a reasonable doubt that Mr. Hester’s answers during his interrogation are voluntary and reliable. (…) [ 18 ] In R. v.

Oickle , [6] the majority of the Supreme Court of Canada held that the determination of the admissibility of a statement raises largely factual issues. Insofar as the trial judge considers all relevant circumstances, an appellate court should therefore only interfere with the decision to admit a statement where it is found that a palpable and overriding error affected the judge’s assessment of the facts.

This standard of appellate review applies even where the statement is videotaped. [7] [ 19 ] After carefully considering all the circumstances and reviewing the entirety of the videotaped interview, the appellant has failed to demonstrate that the trial judge committed a palpable and overriding error in admitting it into evidence. [ 20 ] It is apparent from the videotape that the appellant was not mistreated, treated unfairly or somehow tricked into making statements against his interests. He appears to sincerely not recall what happened and, in fact, never admitted that he attacked the victim.

What little he recollected from the events was freely offered to the police in an apparent effort to seek out the truth. [ 21 ] Nevertheless, the appellant submits that the trial judge erred by not concluding that the conditions of his detention rendered the interview oppressive. The appellant argues that placing him in a cell which did not have a proper bed (only a mattress) and then in a second cell with a bed, but without a blanket, amounted to oppression.

The appellant further argues that the duration of the interview also contributed to this oppression. [ 22 ] The conditions of incarceration were not ideal, but they were far from oppressive. The police officers responded to all of the appellant’s requests. He was provided with a blanket and t-shirt and with food and coffee. [8] Perhaps the officers should have provided the blanket earlier, but the evidence does not show that the appellant had requested a blanket sooner nor that it had been withheld in order to oppress him.

Though both detention cells were cool, there was no evidence that they were unacceptably cold. [9] The evidence indicated, rather, that it was at the request of detainees, after complaints about the summer heat, that the cells were kept cool. [10] Overall, the evidence does not support the conclusion that the trial judge erred in finding that the conditions of detention were not oppressive and that they did not affect the voluntariness of the statements. [11] [ 23 ] With respect to the manner in which the interview was conducted, the trial judge reasonably concluded from the evidence that the appellant was provided coffee, water and access to a washroom, that the police officer conducting the interview was not aggressive or intimidating, nor did he interrupt the appellant, force him to answer, denigrate legal advice or use deceit to elucidate answers.

The officer was polite and calm throughout the interview. [ 24 ] Though the interview took place over nearly eight hours, it was also characterized by long breaks during which the officer retired from the room. At no point during the interview did the appellant ask to return to his cell. At all times during the interview, the appellant appeared aware and responsive. There is no evidence that the duration of the interview oppressed the appellant.

[ 25 ] The appellant also submits that the manner in which the interview was conducted affected his statements in such a manner as to render these involuntary. The appeal brief submitted on his behalf refers to eight incidents, [12] all dealing with officer Prieur’s conduct during the interview: (

a) The officer suggested that the minor injuries suffered by the appellant were the result of an altercation with the victim, when the evidence conclusively showed that these were the result of his arrest (21:51, 22:06, 23:21, 23:58); [13] (

b) The officer tried to minimize the appellant’s involvement by suggesting that he was defending himself from the victim (22:14); (

c) He used suggestive questions about the appellant’s wife, leading to the appellant’s recollection that the victim had kissed her (00:22); (

d) He suggested that the appellant had either killed the victim intentionally or, alternatively, with the intent to harm him (01:09); (

e) He suggested that the only way for the appellant to achieve forgiveness was to explain what had actually happened (01:51); (

f) He implied possible consequences on his wife if the appellant did not assume responsibility for his acts (01:17); (

g) He stated that if the appellant continued to maintain that he lacked a recollection of the events, then it would be the evidence as a whole which would determine the type of charges that would be brought against him, while at the same time offering to the appellant the possibility of reducing his moral culpability by disclosing what he knew (01:25); (

h) Finally, he refused to believe the appellant’s claim that he had no recollection of the events (02:27). [ 26 ] When considered in the overall context in which the interview was conducted, these incidents do not amount, alone or together, to oppression or police trickery. [ 27 ] The appellant could not recall how he had suffered minor injuries. These had in fact occurred at the time of his arrest following his resistance of the arresting officers.

It merits mention that the appellant, through his lawyer at the voir-dire, specifically waived any argument based on the minor injuries suffered upon arrest. [14] Though officer Prieur did ask the appellant how he had incurred these minor injuries and if these were the result of an altercation with the victim or with another person (including the police), he did not suggest that this was in fact the case.

Officer Prieur had arrived in Chisasibi a few hours before the interview [15] and testified at the voir-dire that though he had been informed that the appellant had resisted arrest, [16] he did not then know that the appellant had suffered minor injuries as a result of his arrest. [17] No evidence was adduced to contradict this testimony. [ 28 ] Officer Prieur did explain to the appellant that there were different possible levels of responsibility when a victim dies.

There is nothing fundamentally reprehensible in providing such an explanation during a police interview insofar as it does not constitute, in the circumstances of the interview, an implicit promise of leniency if the accused confesses. Each case must be decided on the basis of its own facts and circumstances. In this case, the trial judge implicitly found that the police officer’s explanation did not constitute an improper inducement to the appellant.

There is nothing in the evidence which would lead to the conclusion that the trial judge committed an overriding and palpable error in so finding. [ 29 ] Contrary to the submissions made on behalf of the appellant, officer Prieur did not suggest that the victim had kissed the appellant’s wife. The questions were about what the victim might have said or done to make the appellant mad.

It is in response to this line of questioning that the appellant stated that the victim had kissed his wife outside the house and that he had tried to stop him from doing this. [ 30 ] Officer Prieur did suggest to the appellant that he may have momentarily lost control that evening without intending to hurt or to kill the victim. However, this was offered in the context of a series of questions pertaining to the appellant’s state of mind towards the victim on the evening in question.

In any event, the appellant could not remember what had in fact happened nor what his state of mind towards the victim had been at the time of the incident. As noted by Justice Iacobucci in Oickle , [18] “minimizing the moral significance of the offence is a common and usually unobjectionable feature of a police interrogation”. The real concern is whether the police suggested that confessing would result in legal consequences being minimal.

This was not the case here. [ 31 ] Though officer Prieur did appeal to the appellant’s moral values and to forgiveness, such appeals are not impermissible during a police interview nor, in the circumstances of this case, do they constitute oppression or trickery.

As again noted by Justice Iacobucci in Oickle , [19] “confessions which result from spiritual exhortations or appeals to conscience and morality, are admissible in evidence, whether urged by a person in authority or by someone else . ” The mere suggestion that a confession would make the appellant feel better and that members of the community would be more likely to forgive him if he did so are not problematic if they contain no implied threat or promise. [20] [ 32 ] Officer Prieur did state that the appellant’s wife could be in a “bad situation” since “she was there”.

Officer Prieur explained at the voir-dire that he was referring to the conflict the wife would find herself in should she be called to testify against her husband. [21] Officer Prieur also asked the appellant if his wife had asked him to stay or to leave and how she had reacted at the time of the events. The appellant could not recall, except with respect to seeing his wife helping the victim, who was covered in blood.

Placed in context, the officer’s comments and questions did not cross a boundary which would allow for the conclusion that the interview was improperly carried out. [ 33 ] As for the reference to the evidence as a whole, officer Prieur clearly stated to the appellant that he was not in a position to provide promises. He simply explained the process for determining the charge that could be laid. In so doing, he also explained that the appellant’s statement would be taken into account in the prosecutor’s decision with respect to the nature of the charge.

He thus emphasized the importance of telling the truth so as to put forward the appellant’s explanation of the events at the earliest possible stage of the proceedings. The suggestion by a police officer that it would be better to tell the truth will warrant excluding a statement “only where the circumstances reveal an implicit threat or promise”. [22] Though words such as “better tell the truth” are best avoided, in the overall circumstances of this case the defence has failed to establish that officer Prieur’s comments constituted an implied threat or

promise. Nor has the defence established that these words actually affected the voluntariness or reliability of the appellant’s statements. In any event, the words of the police officer were uttered towards the latter part of the interview and could not have affected the thrust of the appellant’s main statements, which had, for the most part, been made earlier in the interview. [ 34 ] Finally, towards the end of the interview, officer Prieur stated that he doubted the appellant’s assertion that he did not remember how the victim had suffered the knife injury.

Considered in the overall context of the interview, this statement did not constitute oppression and certainly did not render the appellant's prior statements involuntary or unreliable. [23] [ 35 ] Oppression occurs where the conduct of authorities is such that the accused’s free will is effectively overborne, thereby sapping the will and strength of the interviewee to make an independent choice to speak or remain silent. [24] The defence has failed to establish that oppression occurred in this case.

Though one could find minor faults here and there with the manner the interview was conducted, the entirely non-oppressive atmosphere maintained throughout the interview and the overall circumstances in which it was conducted do not lead to the conclusion that the trial judge erred in finding that the appellant’s statements were both voluntary and reliable. [ 36 ] Nor has the defence established that these statements were the result of police trickery or invalidating interrogation techniques, nor that these techniques would bring the administration of justice into disrepute to such a point as to justify excluding the statements notwithstanding their voluntariness.

Taken as a whole, the interview was properly conducted and was not unfair to the appellant. [ 37 ] As a result, the appeal with respect to the trial judge’s admission of the videotaped interview should be dismissed. WAS THE JURY’S VERDICT UNREASONABLE? [ 38 ] The appellant further submits that the jury’s verdict was unreasonable. Under s. 686(1)( a )(

i) of the Criminal Code , on the hearing of an appeal against a conviction, this Court may allow the appeal where it is of the opinion that the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence. The test for determining whether the verdict of a jury is unreasonable or cannot be sustained by the evidence was expressed by the Supreme Court of Canada in R. v.

Yebes : [25] [C]urial review is invited whenever a jury goes beyond a reasonable standard. […] [T]he test is “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered”. [ 39 ] The formulation of the test imports both an objective assessment and, to some extent, a subjective assessment. It requires this Court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence.

This latter process is usually understood as referring to a subjective exercise, requiring the Court to examine the weight of the evidence, rather than its bare sufficiency. [26] As noted by McIntyre J. in Yebes : [27] […] The function of the Court of Appeal […] goes beyond merely finding that there is evidence to support a conviction. The Court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.

While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the Court must re-examine and to some extent reweigh and consider the effect of the evidence.

This process will be the same whether the case is based on circumstantial or direct evidence. […] [ 40 ] Justice Arbour added the following in Biniaris : [28] […] In other words, if, after reviewing the evidence at the end of an error-free trial which led to a conviction, the appeal court judge is left with a lurking doubt or feeling of unease, that doubt, which is not in itself sufficient to justify interfering with the conviction, may be a useful signal that the verdict was indeed reached in a non-judicial manner.

In that case, the court of appeal must proceed further with its analysis. [ 41 ] A brief overview of the testimony and evidence produced at trial is in order. This overview will focus on the appellant’s main submissions with respect to his assertion that the verdict was unreasonable. [ 42 ] The first witness at trial was forensic specialist Robert Fortin. He testified that on July 24, 2010, he visited the house where the stabbing occurred.

He did not observe any evidence of a fight that would have left a trace. [29] He found a knife on the floor of the dining room. [30] He found numerous traces of human blood in the dining room, as well as a sweater covered in human blood in the basement. [31] He was not able to obtain clear fingerprints. [32] Moreover, no results of genetic testing of the sweater were submitted, [33] nor was any effort made to determine the genetic profile of the appellant [34] or of any of the witnesses. [35] [ 43 ] Officer George Shem testified that during the telephone call he received the night of the incident, he asked Lucy Salt who had stabbed the victim, and she answered, “Willard Hester stabbed him,” while adding that the appellant “ran out of the house”. [36] He then described his arrival at the house where the stabbing occurred, the efforts to reanimate the victim and the circumstances of the appellant's arrest. [ 44 ] The forensic pathologist, André Bourgault, submitted his report dated July 26, 2010 on the cause of death.

He testified that the victim had died of a single wound to the top right area of the thorax, most probably made by a knife.

He also testified that the victim’s suicide was possible, but unlikely in light of the rarity of this form of suicide and the absence of hesitation wounds which are almost always present in cases of suicide by use of a knife. [37] He was therefore of the view that the theory of a suicide was “ non probable / not probable”. [38] [ 45 ] Lucy Salt testified that the mood throughout the evening was that of having fun, laughing, drinking. [39] She also testified that the victim had cried at one point in the evening for some reason unknown to her, but that he subsequently cheered up. [40] She tried to sleep in an adjacent bedroom with her child.

When she came out into the dining room, she related the following events: [41] Then, I thought of going to bed, to sleep with my child. Went to the room. I couldn’t sleep. I tried to sleep. Then I thought of leaving the

room, go check on the others, see what they’re doing. That’s when I started walking towards the – came out of the room, started walking towards the kitchen: that’s when I saw Aaron coming out, kitchen. Then, Aaron called for me: “Lucy, look”. He lifted his t-shirt. (Inaudible), I saw the blood. Then, I don’t remember.

Next thing I remember, I was in the washroom holding a phone, calling the police, talking to the police, telling them we needed an ambulance. [ 46 ] She further testified that she had not seen any fight or verbal argument between the victim and the appellant. [42] She also stated that the victim had related to her some problems he had had with his father the day before the events. [43] [ 47 ] Cindy Neacappo also testified to the festive mood during the party. [44] She related a ten-to-fifteen-minute conversation with the victim at the party during which he was sad and made statements such as “nobody seemed to love him” and in which he expressed displeasure at the separation of his parents a few years before. [45] However, this episode was brief and the victim was subsequently in a happy mood. [ 48 ] Cindy Neacappo then described the untimely death of the victim: [46] Q Okay.

And what happened when you’re smoking in the porch? A- Aaron came out. Q Can you explain for the jury? A- Aaron came out. Q Okay, by which door he came out? A- From the same place I came out from. Q Okay. How long after, yourself, you were outside, did Aaron came out? A- I believe, I think, around, approximately 10 to 15 minutes. Q Okay. And can you explain what do you see? So, you’re there, what do you see? A- You mean when he, Aaron came out? Q Yes. A- He came out and he was standing where I was. Q What happened after that? A- And that’s where he what [ sic ] standing. Q Take all the time that you need, Cindy.

A- And it’s just how he was holding himself when I saw him. And this is what he told me after: “You won’t see me again”. “You won’t see me again.” “This is the last time you’re going to see me.” And I told him: “Don’t say that”. And this is where he removed his hands, like this, and this is where I saw a black spot area. I wasn’t sure if that was the blood. Because it was dark in that porch, that’s why I couldn’t recognize it. And, afterwards, that’s when he kind of went down, on his own, he didn’t fall. He slowly got himself down.

And, after, I wanted to wake him up, and I gave him a pinch on the thumb, only that I wanted that he would get up. And he was looking towards… Oh, okay, sorry. Correction: “He didn’t move”. And, again, I touched him here, to try to wake him up: again, he didn’t move. It was like, also, I think he was snoring. That’s when I understood, while I was trying to wake him up. I just re-phrased what she was saying. And, then, after that, I do not recall anymore. It’s only after, when I was inside. I guess I was all distracted that’s why I ended up inside.

I guess I was also felling [ sic ] frightened. [ 49 ] The videotaped interview of the appellant with the police was then played to the jury. The judge provided instructions to the jury with respect to how to view and treat this videotape; these instructions have not been challenged on appeal. [ 50 ] The defence presented one witness, the appellant’s wife Tina House. She provided a substantially different version of the events.

While the other two witnesses at the scene had not placed the appellant outside the house when the stabbing occurred, she testified that he was outside with them smoking while sitting on a wood stove wearing only pants (i.e., without his t-shirt and without socks). [47] She further denied that the victim had kissed her, contrary to a previous written police statement she had signed. [48] She explained that the previous contradictory statements she had signed were largely untrue and had been made under threats from the police to have her children removed from her by social services. [49] [ 51 ] The Crown’s theory at trial was that the appellant had acted in a fit of jealousy fuelled by alcohol and cocaine, which led him to stab the victim in the kitchen.

The defence submitted that the Crown had not refuted beyond a reasonable doubt the reasonable alternative theory that the victim had committed suicide by stabbing himself. The defence further submitted that, in any event, the Crown had not established the appellant’s guilt beyond a reasonable doubt. [ 52 ] The jury’s guilty verdict necessarily implied that it found, beyond a reasonable doubt, that the victim had not committed suicide and also that the appellant had in fact stabbed the victim.

The appellant challenges those findings on the basis that they are unreasonable when the following issues are considered as a whole: [50]

(

a) The absence of any scientific evidence confirming that the appellant was the assailant, notably the failure to provide DNA evidence from the blood soaked discarded t-shirt found on the premises or from the knife found on the dining room floor; (

b) The pathologist’s testimony that the theory of a suicide was possible; (

c) The contradictory evidence as to what had actually been stated to officer Shem when Lucy Salt made the emergency call on the morning of the events; (

d) The possible alternative explanations with respect to the appellant’s behaviour explaining why he had fled the scene and had discarded his clothing; (

e) The absence of any evidence of a conflict between the appellant and the victim, contrary to what the prosecution suggested to the jury; (

f) The low probative value of the appellant’s police interview; (

g) The context in which the kiss between the victim and the appellant’s wife had been disclosed, which detrimentally affected the credibility and reliability of this statement; (

h) The serious allegations made by the appellant’s wife that the police had forced her to admit facts she had not witnessed, as well as the treatment of those allegations by the prosecution, leading the jury to believe she was lying to protect her husband. [ 53 ] While it is true that no genetic (DNA) evidence was submitted to the jury, this is not a reason to conclude that the trial was somehow tainted.

The absence of DNA evidence from the discarded and bloodied clothing is at best a neutral factor in the trial, neither confirming nor disproving that the clothing belonged to the accused. [ 54 ] As for the pathologist’s opinion that a suicide was technically possible, it must be understood in the full context of his testimony.

The pathologist explained to the jury that he had carried out between 5,000 and 5,500 autopsies. [51] In 300 to 400 of these cases a knife had been involved as an instrument of homicide. [52] However, in his experience, suicide by self-stabbing was quite an infrequent occurrence, involving some 30 to 35 cases, of which only 7 or 8 had being suicide by stabbing to the thorax. [53] In any event, all stabbings by suicide he had examined presented prior hesitation wounds, [54] which were absent on the victim. [ 55 ] In light of the pathologist’s testimony, the very idea that the victim would have stabbed himself in the thorax defies common sense.

The fact the victim cried for some fifteen minutes the night in question is an exceedingly weak basis on which to conclude that there was reasonable doubt based on a hypothetical suicide. As noted by Mr. Justice Cory in R. v. Lifchus , [55] a reasonable doubt is not proof beyond any doubt nor is it an imaginary or frivolous doubt. Rather, it is based upon reason and common sense and is logically connected to the evidence or absence of evidence. In this case, very little in the evidence points to the hypothesis of a suicide.

In the absence of hesitation wounds of any kind, that hypothesis is simply unsustainable when considered in light of the evidence as a whole, including the appellant’s flight from the scene, the discarding of his clothing and his admission that the victim had kissed his wife that evening. [ 56 ] As for the content of the emergency telephone call made to officer Shem, it merits mentioning that contrary to the submissions made on behalf of the appellant, Lucy Salt never denied making the statements attributed to her. She testified, rather, that she only remembered asking for an ambulance: [56] Q.

Is it possible that, during your call to the police officer, that you mentioned other information that what you testified this morning? A. I don’t … I don’t recall mentioning something else. All I remember is calling them and asking them for the ambulance. [ 57 ] The defence submitted that a reason other than post-offence conduct could explain the appellant’s behaviour of fleeing the scene and discarding his clothing. However, properly instructed on this matter, [57] the jury could reject this explanation and take into account the appellant’s behaviour in reaching its verdict.

In doing so, the jury could reasonably conclude that this behaviour was consistent with post-offence conduct. [58] [ 58 ] While it is true that all witnesses testified to the absence of a conflict between the appellant and the victim, the appellant stated the contrary in his police interview. Defence counsel suggests that a low probative value be given to this interview. However, as discussed above, that interview was admissible in evidence. The jury could thus consider the appellant’s statements and ascribe to these the weight it deemed fit in evaluating that evidence.

This extended as well to the appellant’s statements pertaining to the victim’s embrace with his wife. [ 59 ] As for Tina House’s prior signed statements which contradicted her testimony at trial, the jury was in a privileged position to assess her credibility as a witness and was free to either believe or disbelieve this testimony in part or as a whole. [59] [ 60 ] Considering the evidence as a whole, the jury concluded beyond a reasonable doubt that the victim had not committed suicide by plunging a knife into his thorax and that it was rather the appellant who had stabbed him.

The combination of the appellant's post- offence conduct, of his statements to the police and of the forensic evidence sustains the verdict and raises no lurking doubt or feeling of unease with respect to it. All of the facts were for the jury to assess and there is nothing in the compendium of accumulated judicial experience that would cause concern that the jury strayed in this case in its review and assessment of the evidence presented to it. [ 61 ] For these reasons, I would dismiss the appeal.

ROBERT M. MAINVILLE, J.A.