R v Sutherland, 2022 MBCA 23

Citation: R v Sutherland, 2022 MBCA 23 Date: 20220224 Docket: AR21-30-09591 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice William J. Burnett Madam Justice Karen I. Simonsen BETWEEN : ) D. N. Booy HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) R. D. Lagimodière ) for the Respondent - and - ) ) Appeal heard: martin PETER sutherland ) September 20, 2021 ) (Accused) Appellant ) Judgment delivered: ) February 24, 2022 simonsen JA [ 1 ] The accused appeals his conviction by a jury of second degree murder.

He raises two grounds of appeal: (1) the trial judge erred by issuing a prejudicial curative instruction to the jury, which resulted from him misapprehending the evidence and misunderstanding the final address of counsel for the accused (trial counsel); and (2) the trial judge erred by admitting some of the testimony of the Crown’s witness, Sergeant Catellier, when it was opinion evidence that could only be given by a duly qualified expert. Background [ 2 ] On May 25, 2014, 96-year-old Niels Nielsen (the victim) was found in his home, in MacGregor, Manitoba, dead from multiple stab wounds.

He had last been seen on May 23, 2014. [ 3 ] The police investigation led to the arrest of the accused on May 29, 2014 and the accused’s friend, Jason Conway (Conway), on May 30, 2014. Both were charged with first degree murder. After the accused’s preliminary hearing, he was committed to stand trial on second degree murder.

Conway pled guilty to second degree murder, and then testified for the Crown at the accused’s trial. [ 4 ] The trial, in essence, was a credibility contest between Conway and the accused. [ 5 ] Conway’s evidence was that he and the accused had been drinking and wanted more money for alcohol, so they decided to commit a robbery and picked the victim’s house at random. Conway had filleting knives on him that he admitted having stolen; he armed himself with one and gave one to the accused. He testified that, at about 7:00 or 8:00 p.m. on May 24, 2014, he knocked on the victim’s door and the victim answered.

Conway asked to use the telephone and the victim let them in and led them to the kitchen, where Conway pulled out his knife. The accused did the talking, and the victim took approximately $750 or $800 out of a drawer and gave it to him. Then, according to Conway, both he and the accused repeatedly stabbed the victim, although no blood got on either of them. Conway “d[id]n’t know what triggered the attack.” After the stabbing, the two of them left through the front door, walked down the back lane, and then along a trail to a local bar. [ 6 ] Cross-examination of Conway focussed on his mental health issues.

He acknowledged that he experienced delusions and hallucinations, and that he had been drinking in the days leading up to the killing. He also said that he had stopped taking his

medication prior to the murder. [ 7 ] There was also evidence, led by the Crown to confirm Conway’s testimony, that the accused was seen to be unusually flush with cash very shortly after the murder, as well as video surveillance evidence that was seized from the high school across the back lane from the victim’s home which showed two unidentifiable people leaving the victim’s backyard at about the time of the killing as described by Conway. [ 8 ] Both a forensic identification officer and the pathologist testified that there was a lot of blood at the scene of the killing (the scene). [ 9 ] Sergeant Catellier, who had been an RCMP officer for many years, was the lead investigator.

He confirmed the large amount of blood at the scene, but said that the only forensic evidence found there was the blood of the victim. He further testified that no DNA of the victim had been found on the clothes and shoes worn by Conway or the accused upon arrest, or on shoes, a long black coat and filleting knives seized from Conway’s residence at the time of his arrest. In fact, no blood at all was found on the accused or his shoes.

Sergeant Catellier did not know if the clothes and shoes that the accused and Conway were wearing upon arrest were the same clothes and shoes that they had worn on May 24. [ 10 ] During the direct examination of Sgt. Catellier, the Crown (represented by different counsel than on appeal) went further to elicit what it characterized as either fact evidence or lay opinion evidence about the collection of exhibits for forensic DNA testing.

It did so for the purpose of addressing anticipated arguments by the defence that the lack of DNA of the accused or Conway at the scene, and the lack of the victim’s DNA on the items seized from them upon arrest, undermined Conway’s testimony and raised a reasonable doubt as to the accused’s guilt. Trial counsel (also different than counsel on appeal) objected to the admission of this further evidence from Sgt. Catellier on the basis that it could only be given by an expert in DNA. [ 11 ] A voir dire was conducted to further canvass Sgt.

Catellier’s background and to determine the extent to which he could testify about DNA. He acknowledged that he had taken no course specific to DNA and that he was not an expert or scientist in DNA. He had completed the basic six months of training that every RCMP officer receives regarding the collection of evidence. As well, he testified that he had 18 years of experience as a police officer, the last nine of which were as a homicide investigator, in which he had attended hundreds of crime scenes. The collection of evidence was involved in almost all of his investigations.

In that on-the-job experience, he had learned from attending scenes and from co-workers in the major crime unit to cover evidence in order to protect it from environmental factors such as wind, rain, fire and anything else that could destroy it. [ 12 ] Following the voir dire , the trial judge concluded that, in addition to Sgt. Catellier testifying that no DNA had been found, he could provide opinion evidence in the areas sought by the Crown, stating: . . .

The question is whether he can also tell us why, in his opinion, there was no useable DNA, and that common sense opinion can be given due to his vast experience in this field. He -- he is able to tell us what would happen. In my opinion, he is able to tell us what would happen for someone who is -- is walking in the environmental conditions present on the evening of the 24th and how that might affect any DNA on them.

He is also able to tell us why, given the nature of the scene here, the suddenness and quickness of the attack, the five different ways that DNA can be left at the scene, that this scene may possibly not have any DNA, and he’s also to tell us -- be able to tell us that the passage of time affected any DNA that might be found on the clothing of either . . . Conway or [the accused]. So in all of those respects, those are, in my opinion, common sense opinions that he has the right to give. They are within his area of, what I am calling expertise, as an investigator he -- he does know how to collect evidence.

He is trained in the -- the methods of collecting evidence; to do that, he must also know why evidence may or may not be present and for that purpose he can -- he can provide us with his conclusions as he has in this -- in this voir dire here. So he is permitted to answer the questions that [Crown counsel] put to him in the voir dire before the jury . . .. This decision is the subject of the second ground of appeal. [ 13 ] As a consequence of the trial judge’s decision, Sgt.

Catellier’s evidence, on direct examination, that went before the jury related to sources of DNA, how DNA ends up at crime scenes, whether DNA is subject to contamination, environmental factors that can remove or disintegrate DNA, whether DNA is found at all crime scenes, and whether a perpetrator’s DNA would necessarily be found at a crime scene and, specifically, at this scene.

Sergeant Catellier testified that: • The best sources of DNA would be blood and semen, and that other, less profitable sources would be skin cells and saliva. • DNA would end up at a crime scene by the perpetrator leaving one of these sources of DNA there. • DNA could be subject to contamination, that “[t]here could be mixtures”. • “Concerns” for the collection of evidence were that DNA would be washed away and when asked what he meant, he explained, “If evidence is sitting outside and it’s raining, or wind is blowing it away and somebody washing it under running water.”

• A “concern” about the clothing and items seized from the accused and Conway was that “there was a long passage of time since the time of the incident, five and six days.” When then asked if there were any weather “concerns”, he replied that there was a rainstorm on May 24 and some rain on the morning of May 25. (There was also other evidence before the jury that it had been raining at about that time.) • “[I]t’s not uncommon to not find their -- the suspect’s DNA at the scene”. • DNA is not found at all crime scenes. • In response to the Crown’s suggestion that “we all watch TV . . .

CSI”, he stated that “[t]hose shows have created an unrealistic expectation that we will find DNA at every single scene, which is -- which is not realistic.” [ 14 ] On cross-examination, after being asked if there was DNA, fingerprints, or anything else connecting the accused to the scene, Sgt.

Catellier replied that there was not, but that that would not be uncommon in a “short-duration” incident like this — that is, the kind of incident described by Conway. [ 15 ] The accused testified and denied any involvement in the killing, and said that he had received the money from Conway before heading out to the bar with him. He argued that Conway’s evidence should not be accepted, even with respect to Conway’s own admission of involvement given his initial denial to the police. The accused emphasized Conway’s mental health issues.

He also noted that the victim had been found with a sizeable amount of cash on his person, which was inconsistent with Conway’s evidence about a robbery. As well, although Conway had told the police that the two filleting knives had been thrown in the water, Sgt. Catellier testified that the police had checked every body of water in the community of MacGregor and had been unable to locate them. [ 16 ] In trial counsel’s final address to the jury, he focussed on Conway and his credibility.

He stated that Conway had pled guilty to second degree murder because he “got a deal.” In so doing, trial counsel was attempting to demonstrate that Conway had implicated the accused in order to get a reduced charge, rather than, as alleged by the Crown, because the accused was guilty. [ 17 ] The Crown objected to trial counsel’s submission about “a deal” on the basis that there was no evidence of an agreement that Conway could plead guilty to second degree murder in return for implicating the accused.

The trial judge agreed that a curative instruction was required and, after discussion with both counsel about the wording, he provided the curative instruction to the jury. That instruction is the subject of the first ground of appeal. [ 18 ] In its final address to the jury, the Crown, referring to Sgt. Catellier’s testimony, argued that the jury should not place any weight on the lack of forensic evidence. [ 19 ] The trial judge, in his final instructions to the jury (the instructions), said nothing about the absence of blood or the lack of DNA connecting the accused to the murder. He did not mention Sgt.

Catellier’s testimony at all. Trial counsel did not object to the instructions. [ 20 ] Following the Crown’s final address and the trial judge providing the instructions, the jury returned a verdict of guilty on the charge of second degree murder. In arriving at that verdict, the jury evidently rejected the accused’s evidence and accepted the testimony of Conway. Standard of Review [ 21 ] With respect to the first ground of appeal, an appellate court must review jury instructions “on a standard of adequacy, not perfection” ( R v Ponace , 2019 MBCA 99 at para 65 ).

Taking a functional approach, jury instructions must be looked at in their entirety and in the context of the trial to determine whether “the overall effect of the charge was that the jury was properly and fairly instructed” ( ibid ). [ 22 ] With respect to the second ground of appeal, this Court, in R v Fedyck , 2018 MBCA 74 , aff’d 2019 SCC 3 , when addressing the admissibility of lay opinion evidence, stated that, “[a]s a question of law, a decision on the admission of evidence is reviewed on the standard of correctness” (at para 18).

That being said, absent an error in law or a misapprehension of material evidence, the decision of a trial judge regarding the admissibility of evidence is entitled to deference (see R v Herntier , 2020 MBCA 95 at para 217 ). Where the question of admissibility requires an evaluation of probative and prejudicial strength, the standard of review is deferential (see R v TIE , 2014 MBCA 40 at para 11 ; and Herntier at para 218 ).

Analysis Ground 1—Curative Instruction Regarding “A Deal” [ 23 ] The accused contends that the trial judge erred by issuing the curative instruction correcting trial counsel’s comments, made in his final address to the jury, about Conway having pled guilty to second degree murder because he “got a deal.” The accused says that the trial judge’s decision to give the curative instruction rested on his misapprehension of Conway’s evidence and his misunderstanding of trial counsel’s final address.

According to the accused, trial counsel accurately described Conway’s evidence. [ 24 ] In his final address, trial counsel stated in connection with Conway and “a deal”: . . . Now you may say but he pled guilty to murder. I have to take that into account. He says he got punished. Now do you know what the

evidence was that he agreed to in connection with his punishment for murder ? No, you don’t. Why wouldn’t you? I can only argue on the case presented and you can only decide the case on the case presented. You can’t guess. He said, I didn’t want to be convicted of murder in the first degree, which was the charge. That’s the reason that I pled guilty because I got a deal. And the deal was -- what was the deal? They dropped the murder charge, first degree, and made it second degree. . . .

Saved himself 15 years in a prison . . . . [emphasis added] [ 25 ] As I have indicated, following trial counsel’s final address, the Crown objected to the above comments about “a deal” as well as other remarks made by trial counsel on the basis that he had stated, without supporting evidence, that there was an agreement whereby Conway could plead guilty to second degree murder in return for implicating the accused. Trial counsel accepted that there was no evidence of such a deal. (In fact, Sgt.

Catellier testified that he did not “offer to reduce the charge to second degree murder if [Conway] said anything”.) Instead, trial counsel maintained that his submissions related to Conway’s evidence about his subjective state of mind. That is, Conway testified that he had pled guilty in the belief that implicating the accused would allow him to plead guilty to a reduced charge.

The Crown countered that there was also no such evidence of Conway’s state of mind. [ 26 ] The trial judge agreed with the Crown and provided the curative instruction, correcting trial counsel’s comments to indicate that there was no evidence of any deal that Conway had made with the authorities to implicate the accused and that there was no evidence of what Conway thought respecting a reduction of his charge. [ 27 ] On appeal, the accused argues that the curative instruction was unnecessary and prejudicial.

He notes that trial counsel used the word “deal” only once, and reiterates that it was simply a reference to Conway’s evidence about his motivation for pleading guilty to second degree murder. [ 28 ] When trial counsel’s above comments are considered together with the entirety of his final address, it can be readily inferred that he was speaking about an agreement that involved testifying against the accused. Trial counsel also told the jury: • “Conway wanted to get off the first degree murder charge. He did so by implicating [the accused].

He sold what they didn’t have otherwise.” • “[Conway] said [the accused] was involved and reduced the charge and pled guilty.” • Conway testified that he “was trying to get off the charge of first degree murder.” He did this by “testifying and by saying that [the accused] was there because they didn’t have any evidence that [the accused] was there except [his] word.” In addition, as noted above, just prior to trial counsel’s reference to “a deal”, he asked the jury, “Now do you know what the evidence was that he agreed to in connection with his punishment for murder?” [ 29 ] As for the accused’s position that trial counsel was referring to Conway’s subjective belief, I am satisfied, on a careful review of Conway’s testimony, that the trial judge was entitled to conclude that trial counsel’s submissions overstated his evidence.

Despite Conway’s tentative agreement to certain suggestions made by trial counsel, he also made clear that he “told [the police he] was involved and [the accused] was involved because [they] were there.” [ 30 ] Even if there was a tenuous indication by Conway of a subjective belief that if he implicated the accused his charge would be reduced, there is no basis for appellate intervention when the curative instruction and the instructions are considered as a whole.

At the end of the curative instruction and in the instructions, the trial judge told the jury to consider Conway’s evidence with “the greatest care and caution” and, in the instructions, he also stated that the jury should consider “Conway’s guilty plea as well as the circumstances in which he pleaded guilty and the consequences of that plea of guilty for him” to assist in determining “how much or little you will believe or rely upon . . . Conway’s testimony”. [ 31 ] In the circumstances, the trial judge did not misapprehend the evidence or misunderstand trial counsel’s final address.

The jury was properly and fairly instructed. I would dismiss this ground of appeal. Ground 2 — Lay Opinion Evidence [ 32 ] The accused argues that the trial judge erred by allowing Sgt. Catellier to give opinion evidence that fell outside the scope of permissible lay opinion evidence and required his qualification as a DNA expert. The accused further says that the officer was not qualified to give expert opinion evidence and that the technical notice requirements set out in

section 657.3(3) of the Criminal Code (the Code ) for the admission of expert opinion evidence were not met. [ 33 ] According to the accused, the consequence of the admission of the impugned evidence was that he was unfairly deprived of relying upon the lack of forensic DNA evidence to raise a reasonable doubt as to his guilt (see R v Villaroman , 2016 SCC 33 at para 36 ; and R v Banayos and Banayos , 2018 MBCA 86 at para 25 , leave to appeal to SCC refused, 38296; and 38389 (14 February 2019)). [ 34 ] The Crown maintains the trial judge made no error in admitting the impugned evidence. It argues that Sgt. Catellier did

not provide an expert or scientific opinion as to why there was no forensic evidence at the scene or on the items seized upon arrest.

Rather, he gave either fact evidence or lay opinion evidence about the collection of exhibits for forensic DNA testing that was based onknowledge gained from his extensive experience as an investigator. [35] In Graat v The Queen, (SCC), [1982] 2 SCR 819, still the leading case on lay opinion evidence, theSupreme Court of Canada considered whether police officers and a civilian witness could give lay opinion evidence about whether theaccused was intoxicated and whether his driving ability was impaired.

The Supreme Court provided a non-exhaustive list of mattersupon which witnesses had historically been permitted to provide lay opinions, including opinions concerning (

i) the identification ofhandwriting, persons and things; (ii) apparent age; (iii) the bodily plight or condition of a person, including death and illness; (iv) theemotional state of a person—e.g., whether distressed, angry, aggressive, affectionate or depressed; (

v) the condition of things—e.g.,worn, shabby, used or new; (vi) certain questions of value; and (vii) estimates of speed and distance (see p 835). Weather conditions wasanother example mentioned (see p 837). Rather than relying solely on these historic categories, Dickson J, writing for the SupremeCourt, set out the framework for admission of lay opinion evidence, relying on broad principles. The question to be asked is whether theevidence is relevant. The question which must then be asked is whether, though probative, the evidence is excluded by a clear ground oflaw or policy.

Policy considerations identified in Graat include the danger of confusing the issues or misleading the jury, unfair surpriseand the undue consumption of time. [36] Applying these principles, Dickson J explained that lay witnesses can testify in the form of an opinion if, by doing so,they are more accurately able to express the facts they personally perceived to the trier of fact (see p 837).

He ultimately described a layopinion as “an abbreviated version of the witness[’s] factual observations” (at p 839) and as “a compendious statement of facts that aretoo subtle and too complicated to be narrated separately and distinctly” (at p 841).

He also expressed a concern about “a tendency forjudges and juries to let the opinion of police witnesses overwhelm the opinion evidence of other witnesses” (at p 840). [37] The proper scope of lay opinion evidence must be considered in the context of the principles and concerns regarding theadmissibility of expert opinion evidence. [38] Courts have recently highlighted the need to ensure the reliability of expert opinion evidence and the requirement forenhanced gatekeeping by trial judges.

In White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, the Supreme Courtof Canada stated (at para 1): Expert opinion evidence can be a key element in the search for truth, but it may also pose special dangers. To guard against them, theCourt over the last 20 years or so has progressively tightened the rules of admissibility and enhanced the trial judge’s gatekeeping role.

These developments seek to ensure that expert opinion evidence meets certain basic standards before it is admitted. . . . [39] It is vitally important to keep lay opinion evidence distinct from expert opinion evidence, because the road toadmissibility for expert opinion evidence has become increasingly stringent.

If courts do not carefully differentiate between the two,there is a danger that expert opinion evidence will be admitted as lay opinion evidence, without being subject to the heightened expertopinion requirements delineated in the case law and the notice provisions of the Code regarding experts. [40] In David M Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed (Toronto: Irwin Law, 2020), theauthors succinctly explain how the jurisprudence has applied and developed the principles in Graat to delineate between expert and layopinion evidence: • First, in making that distinction, it is not who is offering the opinion but, rather, the nature of the opinion being offered, thatis the main consideration.

The fundamental question is whether the opinion could be formed only by someone with special training orexpertise, which is expert opinion evidence, or whether the opinion is based on ordinary experience, making it lay opinion (see pp 234-38; see also R v Bingley, 2017 SCC 12 at para 34). • Second, while experts can acquire their special knowledge or expertise through on-the-job experience (see R v Dominic,2016 ABCA 114 at paras 22-28; and R v Mills, 2019 ONCA 940 at para 52), “not all information acquired through instruction orexperience reflects ‘special training or expertise’ for purposes of the expert evidence admissibility rules” (Paciocco et al at p 236).

Mundane or ordinary knowledge of things known by persons “who have taken the trouble to inform themselves on (

a) topic” (ibid) is notexpertise for purposes of evidence law, and a witness who conveys such knowledge is offering lay, and not expert, opinion evidence.

When assessing the distinction between ordinary knowledge and specialized knowledge, it is key to consider whether an average jurorcould apply their common sense and experience to critically assess the witness’s claims. “[T]he focus is not simply on whether thewitness has superior knowledge or experience, but rather on whether the witness’s testimony is beyond the ken or understanding ofaverage jurors” (at p 237; see also R v Lavallee, (SCC), [1990] 1 SCR 852 at 871-73). [41] With respect to police opinion evidence, the authors state, “Expert qualification is not a precondition to police officerstestifying to matters properly within the general realm of ordinary officer training and experience . . ..

But, expert qualification isrequired for specialized police training” (at p 237). [42] All of this being said, the line between expert and lay opinion evidence can be difficult to draw (see Graat at p 835; andFedyck at para 20). That will be demonstrated by a brief canvass of some of the authorities relating to opinion evidence of policeofficers. [43] Police officers have been permitted to express an opinion in the form of a compendious statement of facts whenattempting to describe something pertinent to the case.

Those opinions are generally concerned with describing everyday matters ofcommon experience such as indicating that a stain on a rug looked like a clean-up attempt was made (see R v Ilina, 2003 MBCA 20,leave to appeal to SCC refused, 29608 (17 July 2003)); stating that shoeprints looked similar to the treads or shape of certain types of

shoes (see Regina v Hill (1986), (ON CA), 32 CCC (3d) 314 (Ont CA); R v Powell, 2006 ABCA 267; and R v James,2013 BCCA 11, leave to appeal to SCC refused, 35252 (16 May 2013)); opining that footprints in the snow suggested the person wasrunning (see R v Lee, 2010 ABCA 1); stating the general value of an item (see Currie v R, 2021 NBCA 3); and dealing with othermundane things such as describing a person’s demeanour (see R v HB, 2016 ONCA 953) and recognizing a voice (see R v Rahimi, 2015SKCA 85).

As well, a firefighter has been permitted to explain how firefighters normally behave and to describe the style of jewelry (seeFedyck). [44] Police officer testimony that has been found to exceed the proper bounds of lay opinion are opinions that a victim hadnever left town (see R v Ratté, 2012 BCCA 352, leave to appeal to SCC refused, 35128 (9 May 2013)); certain cash payments are usuallydrug money (see R v Lewis, 2012 ONCA 388, which involved the opinion of a border services official); the length of time spent at atruck window was indicative of a drug transaction higher than street level (see R v Montague-Mitchell, 2018 SKCA 78); and a cut on afinger looked like a bite mark (see R v JAA, 2011 SCC 17, obiter comment of Charron J at para 11).

As well, in R v Lawrence, 2015BCCA 358, leave to appeal to SCC refused, 36756 (14 April 2016), the Court concluded that an opinion, provided by a police officerusing ultraviolet light, that dark marks were consistent with bruising was expert opinion evidence, as it “clearly exceeded the knowledgeand experience of the ordinary person” (at para 37). [45] There are also cases in which courts have allowed the expression of an opinion by a police officer in the form of acompendious statement of facts where the opinion is not concerned with describing everyday matters of common experience but, rather,with describing matters that are within ordinary officer training and experience.

Without these short-hand, police experience-basedopinions, the trier of fact is unlikely to understand the significance of the individual facts described by the officer. [46] As such, a long-standing fisheries officer has been permitted to describe boat movements and explain that they areconsistent with fishing operations (see R v Gavin, 2018 PECA 6); a police officer has been allowed to describe a tool and state that it issuitable for breaking into vehicles (see R v Sargent, 2006 ABCA 411); and a police officer, in what was described as a “rare” case, hasbeen allowed to characterize a substance as cocaine (R v Douglas, 2017 ONCA 609 at para 11). [47] However, care must be taken when lay opinion evidence is based upon police experience, as it can be easy for a policeofficer to step outside the bounds of lay opinion, and provide an opinion which is normally given by an expert.

Distinguishing betweenlay opinion and expert opinion evidence is especially important when it is a police officer testifying because of the potential impact thata witness in the position of a police officer could have on a jury. [48] With respect to opinion evidence regarding DNA, the case law generally provides that an expert is required to give suchtestimony, including with respect to the significance of the presence or absence of DNA (see, for example, R v Manjra, 2009 ONCA 485at paras 20-22, leave to appeal to SCC refused, 33324 (28 January 2010); and R v Pruden, 2013 MBCA 107 at para 13).

In David SRose & Lisa Goos, DNA: A Practical Guide (Toronto: Thomson Reuters, 2004) (loose-leaf updated 2021, release 2) (online: WL Can(date accessed 10 February 2022)), the authors state that “the Crown will require an expert to give evidence on various issues, includingthe general nature of DNA evidence” and “[a]n expert will also be required to explain the significance of the presence or absence ofDNA in particular locations” (at

section 5.11) (emphasis added). [49] In my view, Sgt. Catellier’s testimony regarding his “concerns” about the effect of rain, wind and the passage of timeinvolved opinion evidence that fell outside the scope of permissible lay opinion. These statements were not simply statements aboutperceived facts. They were vaguely expressed “concerns” about various aspects of DNA, a highly specialized area which the case lawindicates should be the subject of expert opinion evidence.

Suffice it to say, this testimony about vaguely expressed concerns did notconstitute compendious statements of fact as discussed in Graat, limited to matters within Sgt. Catellier’s ordinary police knowledge andtraining. His experience was in the collection of evidence and that experience taught him to take steps to protect evidence fromenvironmental elements to ensure its integrity. He provided no evidence that he had experience which would allow him to addressquestions of how long DNA can survive when subjected to rain, wind or the passage of time. [50] In admitting Sgt.

Catellier’s evidence in these areas, the trial judge failed to apply the governing principles outlined inthe jurisprudence and to recognize the risks associated with its admission. [51] On direct examination, Sgt. Catellier also testified, in connection with the lack of DNA of anyone but the victimbeing found at the scene, that it was “not uncommon to not find” a suspect’s DNA at the scene of a crime.

In cross-examination, hefurther stated that it was not uncommon to not find DNA in “an incident like this”, “in such a short-duration incident”, in one “that lastedseconds to a couple [of] minutes at most”. [52] The comments, “it’s not uncommon to not find . . . the suspect’s DNA” at the scene of a crime and it is “anunrealistic expectation that we will find DNA at every single scene,” were admissible as lay opinion evidence based upon Sgt.Catellier’s long experience as a crime scene investigator (see R v Hassanzada, 2016 ONCA 284 at paras 113-15).

They could be seen assimilar to a comment such as “sometimes we find DNA, sometimes we don’t”, which he could give as a purely factual statement, basedupon his experience collecting exhibits for DNA testing and receiving a report indicating whether DNA was found or not.

However,once he added that it was not uncommon to not find DNA in “a short-duration incident” like this, he was again entering into expertopinion territory, or at least into territory where he provided no basis for his further opinion. [53] For the foregoing reasons, I am persuaded that the trial judge erred in law by admitting some of the opinion evidence ofSgt. Catellier. Curative Proviso [54] The Crown argues that, if the trial judge erred by admitting any of the opinion evidence of Sgt. Catellier, this Courtshould apply the curative proviso in section 686(1)(b)(iii) of the Code to uphold the verdict.

The accused maintains that the curativeproviso has no application. [55] The powers of this Court under section 686(1) are as follows:

Powers 686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that . . . (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or . . . (

b) may dismiss the appeal where . . . (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided infavour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred . . . . . . [emphasis added] [56] The curative proviso reflects the public interest “in avoiding the cost and delay of retrials where a properly instructedjury at a retrial would inevitably reach the same verdict” (R v Sarrazin, 2011 SCC 54 at para 22). [57] In R v Sekhon, 2014 SCC 15, Moldaver J, for the majority, outlined the principles governing the applicability of thecurative proviso (at para 53): As this Court has repeatedly asserted, the curative proviso can only be applied where there is no “reasonable possibility that the verdictwould have been different had the error . . . not been made” (R. v.

Bevan, (SCC), [1993] 2 S.C.R. 599, at p. 617, aff’din R v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28).

Flowing from this principle, this Court affirmed in Khan that there aretwo situations where the use of s. 686(1)(b)(iii) is appropriate: (1) where the error is harmless or trivial; or (2) where the evidence is sooverwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict (paras. 29-31). [emphasis added] See also R v McDonald, 2017 MBCA 72 at paras 34-49; R v RV, 2019 SCC 41 at paras 83-98; and R v Dowd, 2020 MBCA 23 at paras33-40. [58] The Crown has a high burden of establishing either a harmless error or an overwhelming case, the two prerequisites tothe application of the curative proviso (see Sarrazin at para 28). [59] The character of a harmless or trivial error was described by LeBel J, for the majority, in R v Van, 2009 SCC 22 (at para35):

. . . An error falling into the first category is an error that is harmless on its face or in its effect. The proviso ensures that an appellatecourt does not need to overturn a conviction solely on the basis of an error so trivial that it could not have caused any prejudice to theaccused, and thus could not have affected the verdict. Indeed, it would detract from society’s perception of trial fairness and the properadministration of justice if errors such as these could too readily lead to an acquittal or a new trial (e.g. Chibok v. The Queen (1956), (SCC), 24 C.R. 354 (S.C.C.), at p. 359). . . .

Errors might also be characterized as having a minor effect if they relateto an issue that was not central to the overall determination of guilt or innocence, or if they benefit the defence, such as by imposing amore onerous burden on the Crown (Khan [R v Khan, 2001 SCC 86], at para. 30). The question of whether an error or its effect is minorshould be answered without reference to the strength of the other evidence presented at trial.

The overriding question is whether theerror on its face or in its effect was so minor, so irrelevant to the ultimate issue in the trial, or so clearly non-prejudicial, that anyreasonable judge or jury could not possibly have rendered a different verdict if the error had not been made. [emphasis added] [60] Although an assessment of whether an error was harmless or inconsequential must be made without reference to thestrength of the other evidence presented at trial, the court “may look at the entirety of the case for context” (R v White, 2011 SCC 13 atpara 93). [61] The overwhelming case standard is an extremely high one and should not be equated with the ordinary standard ofproof beyond a reasonable doubt.

Rather, the Crown must establish that the evidence against an accused is so overwhelming thatconviction is inevitable or would invariably result (see R v Trochym, 2007 SCC 6 at para 82). [62] The Crown does not advance the position that the evidence against the accused was overwhelming. Instead, it arguesthat, if the trial judge erred by admitting some of the opinion evidence of Sgt. Catellier, that error was harmless or inconsequential.

Aswill be explained, I agree. [63] Given the contextual analysis that is required, courts have reached inconsistent conclusions regarding the application ofthe curative proviso in cases where inadmissible opinion evidence has been received. In many cases, with an emphasis on thoseinvolving police opinion evidence, the curative proviso has been applied (see Van; Ratté; Montague-Mitchell; and R v Czechowski, 2020BCCA 277, leave to appeal to SCC refused, 39483 (25 March 2021); see also obiter dicta in Lawrence; R v Sandoval-Barillas, 2017ABCA 154; and R v Ajise, 2018 ONCA 494).

On the other hand, there are also a number of such cases where courts have declined toapply the curative proviso (see R v Singh, 2014 ONCA 791; R v Borel, 2021 ONCA 16; R v Daou, 2021 ONCA 380; and R v Kotio, 2021NSCA 76 (all involving witnesses who provided inadmissible opinion evidence about credibility)).

See also Lewis, where aninadmissible opinion was provided by a border services official about the impact of buying airline tickets in cash. [64] With respect to DNA in particular, two sexual assault cases where either a judge’s reasons for decision or instruction toa jury about DNA was successfully challenged also came to differing conclusions regarding the application of the curative proviso. [65] In Manjra, the complainant alleged that the accused had licked her genitals, but none of the accused’s DNA was foundon the genital swab taken from the complainant.

The accused argued that the absence of DNA should lead the judge to conclude thatthere was a reasonable doubt as to his guilt. The judge rejected the argument and applied “common sense” (at para 19) in concludingthat, many hours later, it was unlikely there would be any foreign DNA left. The Court of Appeal determined that this was an error, asthe judge should not have drawn a conclusion about the ability of DNA to persist on skin, as that was a matter of specialized scientificexpertise, not “common sense” (at para 20).

However, the Court applied the curative proviso to uphold the conviction, concluding (atparas 24, 26): . . . Technically, any evidence or lack of evidence may cause a trier of fact to have a reasonable doubt about the guilt of an accused. However, in this case, where no expert evidence was led to assist the court to understand whether one would expect to find DNA fromsaliva after several hours, it would have been mere speculation for the court to draw any conclusion based on the bare findings in thereport that was filed.

This evidence should not have been filed at the trial without expert explanation to assist the court with the use thatcould be made of it: see R. v. Mohan, (SCC), [1994] 2 S.C.R. 9, at p. 23-24. This case falls into the first category. The case turned on credibility findings. The trial judge completely rejected the defence evidenceas untrue and accepted the complainant’s evidence of what occurred.

Had there been expert evidence suggesting that if the appellant hadcommitted the offence, his DNA should have been found on an external genital swab from the complainant, that would have been verysignificant evidence in favour of the defence. However, there was no expert evidence at all on the point, making the findings in theDNA report either neutral or of no evidentiary value. Nor did the defence seek to tender any such expert evidence on appeal. On thestate of the evidence presented to the court, the trial judge’s error could not reasonably have had an impact on the verdict.

It did notcause any substantial wrong or miscarriage of justice. [66] In Pruden, the complainant alleged that the accused had forced intercourse on her while she was sleeping beside herboyfriend, with whom she had had intercourse earlier in the day. None of the accused’s DNA was found on the complainant, but theboyfriend’s DNA was found on the accused’s penis. There was no expert evidence.

The trial judge advised the jurors that they couldreasonably infer that the boyfriend’s DNA got on the accused’s penis from contact with the complainant’s vagina or her pants, and thatthey should use their common sense in assessing the DNA evidence. On appeal, Cameron JA, for the Court, concluded that this

constituted an error, as expert DNA evidence was required regarding the transference of DNA, and to explain the significance of the presence or absence of DNA (see para 13).

In ordering a new trial, and without specifically referencing the curative proviso, she concluded that “it [was] entirely possible that the jury may have used the DNA evidence to ‘tip the scales’ in reaching its conclusion that it was satisfied beyond a reasonable doubt that the offence had been committed” (at para 17). [ 67 ] In addressing the first prerequisite for application of the curative proviso, I ask: Considering the entirety of the case for context, was the improperly admitted opinion evidence of Sgt. Catellier harmless on its face or in its effect? [ 68 ] While Sgt.

Catellier’s inadmissible evidence was not harmless on its face — it involved forensic evidence; was much more than an isolated slip; and was relied upon by the Crown during its final address — I am persuaded that, in tracing the effect of the error, it was harmless or inconsequential (see R v O’Brien , 2011 SCC 29 ; and RV ). I recognize that it is more difficult to trace the impact of an error in a case decided by a jury where, unlike a judge-alone trial, no reasons for decision are issued.

Nonetheless, as I will explain, I am satisfied that tracing can be done in this case. [ 69 ] Sergeant Catellier’s inadmissible evidence was tendered to address the possibility of the jury drawing an inference inconsistent with guilt based on circumstantial evidence — namely, the absence of DNA connecting the accused to the crime. More specifically, his testimony attempted to explain away the lack of DNA of the accused or Conway at the scene and the lack of the victim’s DNA on the items seized when the two of them were arrested. [ 70 ] To assess the impact of Sgt.

Catellier’s inadmissible opinion evidence, I first consider whether the absence of DNA could have raised a reasonable doubt as to the accused’s guilt, even without the officer’s explanations. [ 71 ] The impact of the lack of DNA will vary from case to case. As noted in Hassanzada (at para 107 ): . . . [T]he absence of evidence of a forensic link or connection between an accused and an offence (or crime scene) will vary in its significance from one case to the next. Its impact is a variable, not a constant. Sometimes, of critical importance.

Other times, not so much [citation omitted]. [ 72 ] It is well established that, in assessing circumstantial evidence, inferences that are consistent with innocence do not have to arise from proven facts and a certain gap in the evidence may result in inferences other than guilt.

However, those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense, and cannot be based on speculation (see Villaroman at paras 35-38 ; see also R v McIvor , 2021 MBCA 55 at para 45 ). [ 73 ] The instructions of the trial judge made this clear.

He explained reasonable doubt in the usual way, stating that it is “a doubt based on reason and common sense” and “is a doubt that logically arises from the evidence or the absence of evidence.” He further stated, “You must not speculate, however, about what evidence there might have been or permit yourselves to guess, to make up theories without evidence to support them.” [ 74 ] I also remind myself that, “[o] ur jury system is predicated on the conviction that jurors are intelligent and reasonable fact-finders” ( White at para 56 ; and R v Pearce (ML) , 2014 MBCA 70 at para 126 ). [ 75 ] In my view, the absence of DNA of the accused or Conway at the scene was not significant, indeed was of no import, to the jury’s determination of the accused’s guilt because there was no DNA found there other than that of the victim, despite the fact that the victim had clearly been killed by someone .

Therefore, as a matter of logic and common sense, the absence of DNA of the accused or Conway at the scene could not have impacted the jury’s determination regarding the accused’s culpability. Accordingly, Sgt. Catellier’s inadmissible evidence, led for the purpose of explaining away that absence of DNA, was superfluous and, as such, inconsequential. [ 76 ] The other purpose for Sgt. Catellier’s evidence was to provide an explanation for why no DNA of the victim had been found on the items seized when the accused and Conway were arrested.

The evidentiary value of the absence of DNA on those items depended on whether the clothes and shoes worn by the accused and Conway upon arrest were also worn by them on May 24, and whether the items seized from Conway’s residence were with him or the accused that day. [ 77 ] There was no evidence that the items seized from Conway’s residence were in the possession of him or the accused on May 24. Nor was there any evidence that the clothes and shoes worn by the accused and Conway upon arrest were the same clothes that they had been wearing on May 24; neither of them testified on the point.

Sergeant Catellier testified that he did not know whether the accused or Conway were wearing the same clothes at those two times. During the Crown’s final address, the jury was told that: . . . . . . Sergeant Catellier didn’t even know if the shoes and clothing seized from [the accused] were the ones that [the accused] was even wearing on May 24th, 2014, nor did he know if anything had been done to the clothing and shoes between that time, the time that the murder happened and the time they were seized. . . .

[ 78 ] On this record, it was not reasonably open to the jury to infer that the items seized from Conway’s residence were in the possession of him or the accused on May 24, or that the clothes and shoes worn by the accused or Conway upon arrest on May 29 and 30 were also worn by them several days earlier, on May 24.

While I appreciate that reasonable doubt need not rest on proven facts, it would have been nothing more than speculation for the jury to have found reasonable doubt as to the accused’s guilt on the basis of the absence of the victim’s DNA on any of these items. [ 79 ] The impact of the absence of DNA generally was minimized by the approach taken by trial counsel in his final address to the jury and by the trial judge in the instructions. In his final address, trial counsel made no submission about the lack of DNA at the scene.

Although he commented about there being no “blood” found on the accused or Conway despite there being a lot of blood at the scene, he did not mention the absence of DNA, or Sgt. Catellier’s evidence about DNA. In addition, as I have indicated, the trial judge, in the instructions, made no mention of DNA, the absence of it, or Sgt. Catellier’s evidence — even in that part of the instructions characterized as the position of the accused. His emphasis, like that of trial counsel in his final address, was on other matters related to the credibility and reliability of the testimony of the accused and Conway.

Trial counsel did not object to the instructions. Al though the lack of objection is not determinative, it is indicative of the relative insignificance of the absence of DNA and, therefore, of Sgt.

Catellier’s inadmissible opinion evidence, in the context of the entire case. [ 80 ] In all, I am satisfied that the jury could not reasonably have attributed any weight to the absence of DNA, either at the scene or on the items seized, in its assessment of credibility and its determination as to whether the Crown had proven the accused’s guilt beyond a reasonable doubt. [ 81 ] Because the lack of DNA could not reasonably have affected the jury’s determination of the accused’s guilt, Sgt.

Catellier’s inadmissible testimony, tendered to provide an explanation for that lack of DNA, was inconsequential, and could not reasonably have had an impact on the verdict. [ 82 ] For the foregoing reasons, I conclude that there is no reasonable possibility that the jury’s verdict would have been different had the trial judge not erred in admitting some of Sgt. Catellier’s evidence. Conclusion [ 83 ] The trial judge made no error in providing the curative instruction, so I would not accede to the first ground of appeal. As for the second ground of appeal, the trial judge erred in law by admitting some of Sgt.

Catellier’s opinion evidence. However, that error was harmless or inconsequential, such that the curative proviso is applicable. No substantial wrong or miscarriage of justice has occurred. Therefore, I would dismiss the appeal. JA I agree: JA I agree: JA