R v Shaoulle, 2015 SKCA 101

Court of Appeal for Saskatchewan Docket: CACR2384 Citation: R v Shaoulle , 2015 SKCA 101 Date: 2015-09-30 Between: John Thomas Shaoulle Appellant And Her Majesty the Queen Respondent Before: Jackson, Klebuc and Ottenbreit JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Jackson and The Honourable Mr. Justice Ottenbreit In Dissent: The Honourable Mr. Justice Klebuc On Appeal From: CR 40 of 2012, Prince Albert Appeal Heard: 24 October 2014 Counsel: Brian R. Pfefferle for the Appellant W. Dean Sinclair, Q.C. for the Respondent Jackson and Ottenbreit JJ.A. I.

Introduction [ 1 ] In the early morning hours of April 8, 2011, the naked and partially burned body of Margaret Sewap was found under brush and snow in a commercial area in Prince Albert. The cause of her death was later found to be manual strangulation. She had been brutally sexually assaulted before her death. John Thomas Shaoulle was charged with the first degree murder of her, committed contrary to s. 235(1) of the Criminal Code , RSC 1985, c C-46. With the consent of the Attorney General and Mr.

Shaoulle, he was tried without a jury by Allbright J. of the Court of Queen’s Bench (see s. 473(1) of the Criminal Code ). [ 2 ] The case for the Crown was composed entirely of circumstantial evidence. Mr. Shaoulle did not call any defence evidence and he did not testify. Allbright J. convicted Mr. Shaoulle of first degree murder, resulting in the automatic penalty of life imprisonment without eligibility for parole for 25 years. [ 3 ] Mr. Shaoulle appeals his conviction. His sole ground of appeal is that the verdict is unreasonable or cannot be supported by the evidence.

For the reasons hereinafter set forth, we do not accept his submissions. Thus, we would dismiss his appeal. II. Evidence and the Trial Judge’s Decision [ 4 ] We are in substantial agreement with the facts as set out by Klebuc J.A. in his decision and it is unnecessary to repeat all of them. However, we will make reference to the evidence and background as may be necessary to provide context for what follows and to address the arguments raised by Mr. Shaoulle. [ 5 ] In an Agreed Statement of Fact, Mr. Shaoulle admitted all of the uncontentious evidence: (

i) where Ms. Sewap’s body was found, (ii) the results of the autopsy and DNA analysis, (iii) Mr. Shaoulle’s contact with Ms. Sewap prior to her death, (iv) his contact and interaction with people at the Victoria Hospital Detox Centre, (

v) subsequent police contact and interaction, and (vi) his conversation with an undercover RCMP officer. Mr. Shaoulle also agreed to the admission of 28 Crown exhibits supporting the agreed upon facts. The only substantial issue for determination by the trial judge was whether the Crown had proven beyond a reasonable doubt that Mr. Shaoulle was the person guilty of sexually assaulting Ms. Sewap and of taking her life. [ 6 ] The trial judge emphasized certain facts and drew certain conclusions from the Agreed Statement of Fact, the exhibits and the testimony of witnesses in determining that Mr. Shaoulle was guilty. These facts and conclusions can be summarized as follows: (

a) Security footage taken from the National Hotel showed Mr. Shaoulle with Ms. Sewap approximately eight hours before her body was discovered. As is shown on this video coverage, Mr. Shaoulle touched Ms. Sewap in a sexual way and, according to the trial judge’s view of the matter, she “recoiled” from his touch. She was last seen leaving the hotel in the company of Mr. Shaoulle. (

b) Approximately six hours after Mr. Shaoulle was seen leaving the National Hotel with Ms. Sewap—and precisely at 3:47 a.m. on April 8, 2011—he attended the Victoria Hospital Detox Centre. (

c) Ms. Sheppard-Froh, who dealt with Mr. Shaoulle at the Victoria Hospital Detox Centre, described him as solemn and sad. Mr. Shaoulle told her he could not go home to his wife or his girlfriend. Ms. Sheppard-Froh did not notice any injuries on him. (

d) When Constable Hobson picked up Mr. Shaoulle from the Victoria Hospital Detox Centre early in the morning of April 8, 2011, he did not handcuff Mr. Shaoulle nor did he examine him physically. He was not aware of, nor did he see, any injuries on him. He did issue him a ticket for public intoxication.

(

e) When the police picked up Mr. Shaoulle for questioning on April 18, 2011, he was left alone in an interview room for a period of time. During this time, he took a lighter from his jacket and began to burn a black glove in his possession. (

f) When Mr. Shaoulle was later arrested for this offence, he was lodged in cells with an undercover officer. The officer told Mr. Shaoulle that he was having serious relationship problems with his girlfriend. Thereafter, a conversation occurred between Mr. Shaoulle and the officer wherein Mr. Shaoulle told the officer that if it were him, he would kill the woman, burn the body and dispose of her: [Undercover Officer]: The bitch, get rid of her? Mr. Shaoulle: Yeah. Get rid of her. Dispose of the body someplace. Just don’t let anybody know who. Don’t act stupid after you do that, too. Burn the body.

Burn the body first, and then dispose of her. When you do that, when she scratches you, they’ll have evidence underneath your nails. [Undercover Officer]: Yeah? Mr. Shaoulle: Burn the body. Dig a hole and bury her. Burn the body where nobody won’t see you -- see you having something burnt. Dispose of the body someplace. (Judgment transcript, p. T24) (

g) Mr. Shaoulle’s DNA was found on fingernail clippings of both the right and left hands of Ms. Sewap. [ 7 ] Joy Charles, Mr. Shaoulle’s partner, provided critical testimony at trial. She met Mr. Shaoulle at a store near their home on April 8, 2011, at about 5:00 p.m. She described him as withdrawn and troubled. He “smelled strange,” of “stale alcohol” and “something else” (Ms. Charles’s testimony, Trial transcript, p. T119). She noticed fresh scratches on his arms and knuckles as well as the top area of his shoulders. Mr. Shaoulle claimed they were from handcuffs.

He said “he was in the drunk tank overnight” and had been fined. He said “he had a ticket in his jacket” (p. T121). When she went to check, he stopped her. She smelled his jacket however: I picked up his jacket, I smelled something. And I smelt it a little closer, and I can’t distinguish the smell, but it smelled like something had been incinerated, like, it was -- well, an example would be, you know, when people are standing around a fire, their clothes are going to smell like wood burning; right? … But this didn’t smell like wood burning.

It smelt something -- it smelt like something perfumey and it just didn’t -- I can’t recall what the smell was, but I’ve never smelled it before. (pp. T121–122) [ 8 ] Ms. Charles indicated that the odour on the jacket was not there the day before. When she was physically close to him, she said “he smelled like -- like he had had sex” (p. T124). He was upset that his clothes could not be washed immediately. He had never been involved in doing laundry prior to that but put his own clothes, including his gloves, into the washing machine. He withdrew from her. [ 9 ] The trial judge based his decision that Mr.

Shaoulle was guilty of murdering Ms. Sewap on the combination of the inculpatory circumstances: notably, the video showing Mr. Shaoulle as the last person to be seen with Ms. Sewap, the evidence of Ms. Charles, the fingernail DNA evidence, and the evidence of the undercover officer. He concluded that Mr. Shaoulle’s DNA was transferred to Ms. Sewap during a violent altercation between the two that resulted in her death. He determined that Mr. Shaoulle caused her death by strangulation while committing, or after committing, a sexual assault on her.

The trial judge stated that the most significant piece of evidence was the testimony of Ms. Charles whom he found to be a very credible and compelling witness. He made a specific finding that Ms. Charles’s testimony was forthright and her observations were salient, cogent and reliable. He found her highly credible and rejected none of her evidence. [ 10 ] He was satisfied that the only reasonable and rational conclusion to be reached—based on the whole of the circumstantial evidence—was that Mr. Shaoulle was guilty. III. Analysis [ 11 ] Mr. Shaoulle’s counsel submits that this appeal raises two issues: (

i) did the learned trial judge err by giving too much weight to the “post-offence” conduct; and (ii) was there sufficient circumstantial evidence to convict his client? Notwithstanding the arguments made to the contrary, these issues resolve into only one issue: whether the verdict is “unreasonable or cannot be supported by the evidence” ( s. 686(1) ( a )(

i) of the Criminal Code ). [ 12 ] Mr. Shaoulle does not contend that the trial judge erred in law with respect to how he treated the circumstantial evidence of post-offence conduct. He accepts that the trial judge correctly outlined the boundaries of the use of post-offence conduct in determining whether an accused’s guilt is proven beyond a reasonable doubt and that the trial judge could consider Mr. Shaoulle’s post-offence conduct. However, Mr. Shaoulle argues that the post-offence conduct is all circumstantial and that the trial judge should have considered alternative explanations for it.

He also argues that the trial judge gave too much weight to post-offence conduct. [ 13 ] In his factum, Mr. Shaoulle’s argument focusses on Ms. Charles’s testimony and suggests possible alternative

interpretations of that circumstantial evidence in the following areas: (

i) injuries and scratches to Mr. Shaoulle; (ii) Mr. Shaoulle wanting to wash his clothes and shower and Mr. Shaoulle smelling like sex; (iii) the smell of smoke coming from Mr. Shaoulle; and (iv) Mr. Shaoulle avoiding physical contact with Ms. Charles. Mr. Shaoulle submits that a review of the circumstantial evidence along with the evidence as a whole should have raised a reasonable doubt. Finally, he also argues that it was unreasonable for the trial judge to accept the evidence of Ms.

Charles without considering inconsistent evidence given by her and the absence of corroboration of her testimony from others respecting odours coming from him and the injuries seen on him, thus rendering the verdict unsafe. Tangentially, he argues in relation to

Ms. Charles that she may have been motivated in some of her comments because of feelings of jealousy. [14] These arguments are a challenge not to the legal principles pertaining to circumstantial evidence, but are, instead, an attack onthe reasonableness of the verdict. They are properly aspects of Mr. Shaoulle’s argument that the verdict based on circumstantial evidenceis unreasonable: see R v Yebes, (SCC), [1987] 2 SCR 168 at 186 [Yebes]. While not directly raised as such,Mr. Shaoulle’s arguments in relation to Ms.

Charles could be considered as an attack on her credibility. [15] An allegation that a verdict is unreasonable or cannot be supported by the evidence invokes this Court’s authority unders. 686(1)(a)(

i) of the Criminal Code: 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 (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence …. [16] Definitively expressed for the first time in Yebes, the standard of review by which to assess whether a conviction isunreasonable or unsupported is well-known: The function of the Court of Appeal, under s. 613(1)(a)(

i) of the Criminal Code, goes beyond merely finding that there is evidence tosupport 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, inorder to apply the test the Court must re-examine and to some extent reweigh and consider the effect of the evidence.

This process willbe the same whether the case is based on circumstantial or direct evidence. (Emphasis added, Yebes, p. 186) [17] This test was affirmed in R v Biniaris, 2000 SCC 15, [2000] 1 SCR 381 [Biniaris] where it was also made clear that Yebesapplies to the judgment of a judge sitting at trial without a jury.

Speaking directly to the assessment of the unreasonableness of a judge’sverdict, Arbour J., for the Court, stated the following: [37] … The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that ofa single judge, at least when reasons for judgment of some substance are provided.

In those cases, the reviewing appellate court may beable to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached,and justify the reversal. [18] Arbour J. illustrated this comment by referring to examples where the Supreme Court of Canada had set aside a conviction ofa judge sitting at trial without a jury on the basis of deficiencies in the trial judge’s analysis (see R v Burke, (SCC),[1996] 1 SCR 474), including a failure to refer to deficiencies in the pre-trial identification procedure (see R v Reitsma, (SCC), [1998] 1 SCR 769).

Arbour J. also referred to R v O’Connor (1998), (BC CA), 123 CCC (3d) 487 (BCCA) at492–493 and 518–520 as an example justifying appellate intervention in the face of a material logical inconsistency in the evidence. [19] Arbour J. concluded her summation of the law pertaining to the appellate assessment of a judge’s verdict on the basis of theunreasonableness of a judge’s verdict: [37] … These examples demonstrate that in trials by judge alone, the court of appeal often can and should identify the defects in theanalysis that led the trier of fact to an unreasonable conclusion.

The court of appeal will therefore be justified to intervene and set aside averdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, orentered a verdict inconsistent with the factual conclusions reached.

These discernable defects are themselves sometimes akin to aseparate error of law, and therefore easily sustain the conclusion that the unreasonable verdict which rests upon them also raises aquestion of law. (Emphasis added, Biniaris) [20] In R v A.G., 2000 SCC 17, [2000] 1 SCR 439 [A.G.], the Supreme Court clarified that where a judge sitting without a jurygives detailed reasons for judgment, and the judge is alive to the recurrent problems of adjudication, the court of appeal brings no specialinsight to the assessment of evidence.

One matter in particular is addressed: while reweighing the evidence is part of the task of anappellate court when addressing the issue of whether the verdict is unreasonable, the court should not intervene merely because it has adoubt where the trial judge did not (see A.G., para. 29). [21] In another judge-alone case, R v R.P., 2012 SCC 22, [2012] 1 SCR 746 [R.P.], Deschamps J. summarized the most recentlyarticulated examples justifying appellate intervention in judge-alone cases taken from R v Beaudry, 2007 SCC 5, [2007] 1 SCR 190[Beaudry] and R v Sinclair, 2011 SCC 40, [2011] 3 SCR 3 [Sinclair]: [9] … The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of factessential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding,or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v.

Sinclair,2011 SCC 40 , [2011] 3 S.C.R. 3, at paras. 4, 16 and 19–21; R. v. Beaudry, 2007 SCC 5 , [2007] 1 S.C.R. 190). (R.P.) [22] Also referring to Beaudry and Sinclair, Cromwell J. in R v W.H., 2013 SCC 22, [2013] 2 SCR 180 [W.H.] acknowledges that

the more recent jurisprudence from the Supreme Court has expanded “somewhat” the scope of review for unreasonableness in the case of verdicts reached by trial judges. He explains the basis for this change: [26] … This development recognizes a practical distinction between reasonableness review of a trial judge’s verdict and of a jury verdict: judges, unlike juries, give reasons for their findings which the appellate court may review and consider as part of its reasonableness analysis. [ 23 ] Turning back to the case under appeal, it is important to say what this appeal is not about. Mr.

Shaoulle does not submit that the verdict is plainly contradicted by the evidence relied upon by the trial judge in support of that inference or finding or that it is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (see, e.g., Sinclair and Beaudry ); nor does he attack the logic of the reasons or point to any inconsistencies in the judge’s analysis. [ 24 ] In this case, the assessment of the reasonableness of the verdict may be framed directly in terms of the Yebes test: whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.

As part of the assessment for unreasonableness, it is useful to begin with a review of what was argued at trial and how the judge assessed those arguments. [ 25 ] At trial, Mr. Shaoulle’s counsel argued that the evidence respecting identity was circumstantial. He raised a number of questions about the evidence in an effort to demonstrate that alternative conclusions existed to explain the evidence and that these conclusions were equally consistent with Mr. Shaoulle’s innocence. The trial judge reviewed these arguments in detail: Mr.

Mokaruk [defence counsel] says that the only rational conclusion that could be reached is one that I must focus on. “And is this,” he rhetorically asks, “the only rational conclusion that could be reached that it being -- or this being guilt?” And it’s Mr. Mokaruk’s firm position that it is not the only rational conclusion from a consideration of all of the evidence. He references the time-line at the National Hotel from 10:01 to 10:15, and the next morning, the unexplained hours from 10 to 3:47 the following morning, and Mr. Shaoulle’s arrest at 5:30 a.m. “What,” Mr.

Mokaruk asks, “happened during that time?” The Crown has not proven anything during that critical time-frame. And that is a timeframe that if Mr. Shaoulle was the perpetrator, the death of Ms. Sewap and the sexual assault would have had to have occurred. And at 6:30, the police noticed that the body was found. There was no evidence of who she was with or where Mr. Mokaruk says, or even when the death occurred. There is a time-line of seven to eight hours. “And if the death is after 3:45 a.m.,” Mr. Mokaruk says, “it could not have been Mr.

Shaoulle.” “There is nothing,” he says, in addition, “following a very thorough scene investigation which physically connects Mr. Shaoulle to the scene.” The scene is consistent with a struggle, and very short fingernails on the part of Ms. Sewap, and in -- on the DNA, Mr. Mokaruk says, “My Lord, what use can be made of it? We don’t know what fingers they came from -- the clippings -- and the issue was predominantly, how did it get there?” And his position comes to this on that issue: We just don’t know how the transference could have occurred. It could be consistent with an innocent transference.

It could well be, in his view, consistent with an innocent transference. The detail samples -- samples show no other DNA, which you would expect on some of the other items. Why no DNA found on the -- the unwashed jacket? Why? Why no semen or DNA of Mr. Shaoulle on the vaginal or anal areas of Ms. Sewap? Thirty-seven samples were sent for analysis, and of all of those other items, there was no DNA, no incriminating evidence. At the National Hotel, Mr. Mokaruk says, they were getting along over that 14 minutes. The two of them seemed to be getting along.

Once they left, there was no evidence as to how long they stayed together. Ms. Sheppard-Froh, she didn’t notice any injuries or any unusual smell on Mr. Shaoulle. Constable Hobson observed no injuries on the hands. The injuries could have happened long after he was released from custody. Why no DNA on the jacket? Regarding the burning of the gloves on the video, or the attempt to burn the gloves, it’s consistent with him singeing off a loose thread. He was nonchalant about it, and, therefore, nothing should be read into that.

And in terms of the cell operation with the undercover officer -- officer, there was no admissions in the cells. In fact, what occurs during that lengthy transcript are denials of any involvement. There’s also no evidence of motive or exclusive opportunity. And there are, in his view, in conclusion, enormous evidentiary gaps. The Crown must demonstrate beyond a reasonable doubt that for guilt to occur, that guilt must be the only rational inference to be drawn from all of the evidence. And it’s Mr. Mokaruk’s position that the Crown has fallen far short on that particular regard. (Judgment transcript, pp.

T46–T47) [ 26 ] In this Court, Mr. Shaoulle asks that the Court consider the following possible explanations for the evidence: (

a) if Ms. Sewap’s death occurred after 3:45 a.m. on April 8, 2011, Mr. Shaoulle could not have killed her because he was at the Victoria Hospital Detox Centre; (

b) there was no evidence connecting Mr. Shaoulle to the scene of death; (

c) the DNA evidence could not be relied upon because there was no differentiation as to which fingers the fingernail clippings came from, and that the DNA transference could have been innocent; (

d) the police found no DNA of Ms. Sewap on Mr. Shaoulle’s jacket and no DNA of Mr. Shaoulle on the vaginal or anal swabs taken from Ms. Sewap; (

e) Mr. Shaoulle and Ms. Sewap were getting along at the National Hotel and there is no evidence how long they stayed

together after they left that location; (

f) Ms. Sheppard-Froh did not notice any injuries or unusual smells on Mr. Shaoulle; (

g) Constable Hobson observed no injuries on Mr. Shaoulle’s hands; (

h) the burning of the glove was consistent with singeing off a loose thread; (

i) there were no direct admissions of involvement in Ms. Sewap’s death made by Mr. Shaoulle to the undercover officer while in the cells—in fact, there were denials of such involvement; and (

j) there was no evidence of motive or exclusive opportunity. [ 27 ] As will be seen from a comparison of what the trial judge considered in pp. T46–47 of his oral judgment (and quoted above in para. 25) and the list above, arguments made in this Court are substantially the same as those the trial judge reviewed. [ 28 ] In light of the trial judge’s acknowledgment of these arguments, Mr.

Shaoulle’s submissions here invite this Court to reweigh and re-examine the evidence, which is a permissible exercise of a known appellate power, but they also invite this Court to consider the evidence in a piecemeal fashion or reassign weight to individual pieces of evidence according to our own view of the evidence. [ 29 ] If the trial judge had applied the reasonable doubt standard to each individual piece of evidence in a piecemeal fashion—and Mr.

Shaoulle had been acquitted as a result—it would have given rise to a right of appeal from that verdict: see R v J.M.H. , 2011 SCC 45 , [2011] 3 SCR 197 [ J.M.H. ]. [ 30 ] In J.M.H. , Cromwell J. for the Court considered under what circumstances a trial judge’s allegedly flawed assessment of the evidence can constitute an error of law for the purposes of setting aside an acquittal.

Pertinent to the appeal before us, Cromwell J. stated the following at para. 31: “it is an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt; the evidence must be looked at as a whole.” [ 31 ] The appeal before us is an appeal from a conviction so that the analogy with what was said in J.M.H. is not completely apposite. It is not a question of applying the reasonable doubt standard to each piece of evidence. That is not the issue on an appeal from a conviction.

J.M.H. does, however, confirm the risk an appellate court incurs in considering evidence in a piecemeal fashion. In this appeal, as well, the appellant’s counsel invites us to re-weigh not the whole of the evidence, but individual pieces of it and either to discard items of evidence or discount them.

As this Court recently stated in the context of an appeal from a conviction, this is not the function of an appellate court when considering the reasonableness of a verdict: [96] It would not be a proper role for an appeal court to consider each individual piece of admissible evidence and reassign its appropriate weight, according to its own view of the evidence.

An appeal court must accord deference to the trial judge’s assessment of the evidence, and above all else, must not consider the evidence in a piecemeal fashion or discard pieces of evidence in order to arrive at its own verdict. (Emphasis added, R v Aden , 2015 SKCA 59 , 323 CCC (3d) 514) [ 32 ] The trial judge in the appeal before us gave a detailed oral judgment. Without repeating large extracts from it, an appellate

summary of a good judgment can rarely do justice to it, but, in our view, it is obvious from reading the judgment that the trial judge had in front of him a clear blueprint of what he had to analyze and to consider. [ 33 ] He began by instructing himself as he would instruct a jury on all of the critical issues: the definition of murder, the meaning of reasonable doubt, what he should do with the evidence that the accused had been drinking, the presumption of innocence, and how he should treat the various types of evidence before him—in particular, how he should treat circumstantial evidence, the difference between an inference and speculation, the types of post-offence conduct, and how DNA evidence should be assessed.

The trial judge recognized the only matters in issue: What we don’t know, at this point, as I embark upon the matter and the issue to be resolved, and must be resolved, is whether the Crown has proven beyond a reasonable doubt that it was the accused, John Thomas Shaoulle, who sexually assaulted and caused the death of Margaret Sewap. (Judgment transcript, p.

T2) [ 34 ] Pivotal to the resolution of these issues was the trial judge’s repeated instruction to himself: the Crown must demonstrate beyond a reasonable doubt that for guilt to occur, that guilt must be the only rational inference to be drawn from all of the evidence (see pp. T5, T42, T43, T45–47, T52, T54). [ 35 ] The trial judge then reviewed the evidence in detail, which we need not repeat here. [ 36 ] In resolving inconsistencies in the evidence, the trial judge placed substantial weight on the testimony of Ms.

Charles: The next witness was a very significant witness in this particular regard, and that was Joy Charles. Ms. Charles was from the Sturgeon Lake area originally, but currently, she indicated, she was living elsewhere. She has four children. In April of 2011, she was living at Sturgeon Lake on the First Nation with her children. Her parents were there, as well, and her partner at the time -- you see, her partner at the time was Mr. Shaoulle, and he was living there with her and the other individuals. She met Mr. Shaoulle in 2010, and in November, she said, “We came to live together. He wasn’t working.

I was in school.” She was pursuing an education.

When she was asked about Mr. Shaoulle not working, she said it caused difficulties. She said, “I was pregnant, and I needed helpfinancially.” And she was pregnant with Mr. Shaoulle’s child. She said he would get upset about it … encouraging him to get work. Shewas asked, “How did the relationship end?” She said, “On a Sunday, I believe it was in April of 2011. It was a week after he came back.It was mid-month. He left every now and then, but then he came back. On this occasion, he didn’t want to work. He followed me toschool. He wasn’t responding.

He’d get mad.” Prior to the breakup, he was away from home on occasion, too. And she talked about specifically and significantly April the 7th, 2011.She said, “That morning, I was getting ready for school right before he said he’d look for a job. About 8:30 in the morning,” she said, “Idropped him off at the store on the -- on the First Nation.” She said, “I saw him the day after that, on April the 8th at about 4:30 or 5:00p.m. I was at home. He phoned from Sturgeon -- from the Sturgeon store payphone. I went to pick him up.

I asked him if he’d had fun.He said, ‘No.’” On April the 7th, he was wearing black pants, boots, gloves, plaid jacket, a sweater, and hat. … On April the 7th, he said he was going to look for a job. At 8:30 a.m., she last saw him. At 4:30 the next day, he called her from thephone at the store. She was upset with him. She didn’t know where he’d stayed, was wearing the same clothing. Her observations, hewas withdrawn and seemed troubled. She’s familiar with him. She noted the stale alcohol. He went downstairs to change, and asked to take a shower. There was no water. She asked him to comeupstairs.

At the kitchen table, she noted he had scratches on his arm. She wouldn’t -- and he wouldn’t tell her where it came from. Shesaw scratches on his knuckles. He said he got them from handcuffs. The Crown says, “But Constable Hobson says there were nohandcuffs.” The right arm and the shoulder scratches, she says it looked fresh, according to Mr. Lubyk [Crown counsel]. Ms. Charles says on hishands, she didn’t think they were handcuff injuries, but they were consistent with someone being in a fight. When she grabbed the jacket,it had the smell of someone standing around a fire, but not like that smell, perfumey.

The odour wasn’t on the jacket when he left. Hegrabbed the jacket and showed her a ticket. He wanted the clothes washed immediately. She found it strange, not his usual behaviour. Hewould follow her to school, et cetera. He did not want to be physically with her. She thought he smelled like sex. After the water truck came, he threw his clothes in the washer, which was unusual. She found it odd that he washed his gloves. A weeklater, she wanted him to leave. They were having difficulties. She said, “He’s not telling the truth.” The Crown says, “He wasn’t tellingthe truth to Ms.

Charles.” He was never placed in handcuffs in contrast to what he told her. There’s a closeness between the parties, the Crown says. And it’s difficult for her to testify, but she testified and was forthright. Oncross-examination on the smell of the jacket, it smelled like something. She said it was not marihuana. (pp. T29–30 and T51–T52) [37] Her evidence was uncorroborated. However, the trial judge was satisfied that it could be relied on without corroboration. Heconcluded that Ms. Charles’s observations and testimony were “salient,” “cogent” and “reliable” (p. T53).

He found her to be highlycredible and compelling. He did not reject any of her evidence. [38] Where the appellate role in assessing the unreasonableness of a verdict hinges on the credibility of a witness, Deschamps J., inR.P., stated the following: [10] Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact.

A court ofappeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannotinterfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R. v.Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7). (Emphasis added) The trial judge reviewed and considered the evidence of Ms. Charles and found it credible and we are unable to say that his assessmentof the credibility and cogency of Ms.

Charles’s evidence “cannot be supported on any reasonable view of the evidence,” to use the wordsof Deschamps J. in R.P. [39] After referring in detail to the evidence and to the defence and Crown counsel’s submissions, the trial judge stated thefollowing: So what then is my conclusion in relation to this matter? Quite frankly, I find that I am in agreement with the Crown’s submission inrelation to this matter in its entirety. Ms. -- to me the most significant pieces of evidence in this trial are the following: I foundMs. Charles to be a very credible witness, compelling.

She did not want to be in this courtroom, it was not an easy thing for her to do. The evidence which she gave was evidence dealing withthe father of her -- what I believe to be her youngest child. She came into this room, and I observed her as closely as I possibly could.What she said, she believed was true, and I accept her evidence. I find her highly credible, and there is nothing in her evidence which Ireject. In terms of the discussion in the cell that Mr. Shaoulle had with the undercover officer, in my view, that is highly probativecircumstantial evidence. Mr.

Shaoulle is telling the undercover officer that you get rid of someone by burning a body, and then buryingit. Ms. Sewap’s body was burned. In isolation, one could easily surmise that there is an alternative explanation, other than guilt, in anindividual piece of circumstantial evidence like that, but I am required to look at all of the evidence. And when I consider all of the

circumstantial evidence, I come to the conclusion that I have, in that particular regard. And in terms of his evidence -- or her evidence -- Ms. Sewap’s [sic] evidence, it shows that Mr. Shaoulle was acting out of character. Hewas gone during the relevant time-frame. He said he was handcuffed. He wasn’t. He was clearly not being honest and forthright withMs. Arthur [sic] in that particular regard. And when she talks about those particular -- I’m sorry -- Ms. Charles. When Ms.

Charles talksabout those particular matters, they were difficult for her, but her observations were salient, they were cogent, and they were reliable. When I take her evidence, the evidence with the officer in the cell, in that particular regard, the video at the National Hotel showingthem being together during that time, all of the circumstantial evidence, and not the least of which is the DNA evidence.

And while onecould surmise or speculate that the transference of that DNA evidence could have come in some other innocent fashion, theoverwhelming conclusion that I come to is that that transference occurred during a violent altercation between Mr. Shaoulle andMs. Sewap that ultimately resulted in her death. She was violently, viciously sexually attacked. And I’m satisfied beyond a reasonable doubt that that was Mr. Shaoulle who undertookthat.

And I’m satisfied beyond a reasonable doubt, for the reasons that the Crown has articulated, and with -- with which I completelyagree, that the Crown has proven beyond a reasonable doubt that Mr. Shaoulle caused the death of Ms. Sewap while committing orhaving just committed a sexual assault upon her, and that he caused her death by strangulation. (Emphasis added, Judgment transcript, pp. T52–53) [40] The trial judge was aware of the inconsistencies in the evidence.

As noted earlier, the trial judge also clearly understood thatthere were alternative explanations proffered for the circumstantial evidence and he considered them. The trial judge was clearly alive tothe fact that two of the witnesses who saw Mr. Shaoulle the morning of April 8, 2011—the police officer and the nurse—saw no injurieson him. [41] The trial judge determined that the evidence supported the key arguments of the Crown pointing to Mr. Shaoulle as theperpetrator of the crime: (

i) Mr. Shaoulle had scratches to his arm and knuckles, (ii) when Mr. Shaoulle left he had no odour on hisjacket and that when he returned there was a smell on his jacket, (iii) Mr. Shaoulle was not telling the truth to Ms. Charles that handcuffscaused his injuries, (iv) Mr. Shaoulle attempted to destroy evidence (i.e., the gloves), and (

v) Mr. Shaoulle suggested to the undercoverofficer that the way you deal with another person’s death is to burn the body. We see no palpable and overriding error in any of theindividual facts found by the trial judge or in the inferences that he drew from the facts.

They are supported by the evidence, and they, inturn, (taken together) serve to support the trial judge’s ultimate conclusion of guilt. [42] Considering again the various authorities cited earlier with respect to the standard of review, and reweighing the totality ofevidence and considering the reasons of the trial judge, we conclude that the verdict is one that a properly instructed jury, actingjudicially, could reasonably have rendered. [43] Crown counsel on appeal also suggests this is an appropriate appeal in which to consider the accused did not testify.

TheSupreme Court of Canada has established the principle that an appellate court may account for the accused’s failure to testify inassessing the reasonableness of the verdict under s. 686(1)(a)(

i) of the Criminal Code: see R v Corbett, (SCC), [1975] 2SCR 275 at 280–81; R v François, (SCC), [1994] 2 SCR 827; R v Noble, (SCC), [1997] 1 SCR 874 atparas 101–109 [Noble]. For application of the principle derived from the Supreme Court authorities, see R v Sparvier, 2006 SKCA 139 atpara 35, 289 Sask R 79; R v Brass, 2007 SKCA 94 at para 118, 304 Sask R 20; R v Whiteway (B.D.T.), 2015 MBCA 24 at para 55, 315Man R (2d) 237; and R v Goodkey, 2015 BCCA 64 at para 190, 367 BCAC 231.

We are of the opinion that it is safe to apply theseauthorities to the case at bar. [44] The majority in Noble makes it clear that “the absence of an innocent explanation may be a factor in assessing thereasonableness of the verdict in the face of strong inculpatory evidence” (para. 103).

Silence may not be placed on the evidentiary scales(para. 103)—nor can silence be used as a “make-weight” (Noble, para. 109)—but it is permissible to conclude from the failure to testifythat there is no unspoken, innocent explanation about which an appellate court must speculate. [45] The combination of circumstances in the case before us, which included direct evidence of what the accused said and did,cries out for some explanation that was not provided. In this regard, we mention the following specific aspects of the evidence: thepresence of Mr. Shaoulle’s DNA in the clippings taken from Ms.

Sewap; the burning of the glove; the odour on his clothing; what he didwhen he came home from Prince Albert, including his sudden conversion to cleanliness; what he said to Ms. Charles about his injuries;and his statements to the undercover officer. All of this evidence stood unexplained. No innocent explanation is apparent on the face ofthe record for any of these individual pieces of evidence. [46] We agree with Rosenberg J.A. writing in R v Luu, 2010 ONCA 807, 272 OAC 55 that the silence of an accused “cannot beused to strengthen a weak Crown case” (para. 33).

These words were said in the context where appellate review revealed thefundamental basis of the case no longer existed. The same cannot be said of the evidence that remains in the case before us. [47] Having regard for these reasons, we conclude with much respect for the contrary view, that the verdict is not unreasonableand it is not unsupported by the evidence. IV. Conclusion [48] The appeal is dismissed.

“Jackson J.A.” Jackson J.A. And “Ottenbreit J.A.” Ottenbreit J.A. Klebuc J.A. I. Introduction [ 49 ] At approximately 6:00 a.m. on April 8, 2011, the nude and partially burned body of Margaret Rose Sewap was found behind a building housing a commercial outlet located near the commercial centre of the City of Prince Albert in Saskatchewan. She had been physically assaulted, sexually assaulted, strangled to death and her body had been partially burned. Mr. Shaoulle, the appellant, was charged with unlawfully having caused the death of Ms.

Sewap and thereby committed first degree murder contrary to s. 235(1) of the Criminal Code , RSC 1985, c C-46. The learned trial judge, sitting alone, convicted the appellant on the murder charge and imposed a life sentence without eligibility for parole for 25 years [the Verdict]. [ 50 ] In this appeal, the appellant asks the Court to set aside the conviction on the grounds that a properly instructed jury, acting judicially, could not have convicted him based on the equivocal nature of the evidence relied on by the Crown, which did not connect the appellant with Ms.

Sewap at times relevant to her death. [ 51 ] In my judgment, a properly instructed jury, acting judicially could not have concluded beyond a reasonable doubt, based on the circumstantial evidence, the post-conduct evidence and other evidence before the trial judge that the appellant was the person who killed Ms. Sewap. Therefore, I would set aside the Verdict and order a new trial. II.

Background Facts [ 52 ] The Crown and the appellant executed an Agreed Statement of Fact dated October 28, 2013, whereby they agreed the facts and exhibits referred to therein could be entered as evidence at the trial of the appellant. [ 53 ] As part of its submissions in this appeal, the Crown provided this Court with a “Summary of the Facts” of the evidence presented to the trial judge sitting without a jury [Summary]. The

Summary included a brief review of the Agreed Statement of Fact and a brief

summary of the viva voce testimony of Ms. Joy Charles, Constable Hobson, Ms. Angela Sheppard-Froh and Constable McAdam. Their evidence mainly related to the appellant’s post-offence conduct. [ 54 ] While other witnesses testified, their testimony was not viewed by legal counsel as being contentious in this appeal. The material portions of the

Summary and additional facts added from the trial transcript and some commentary on the evidence provided by the Crown include the following: 5. Two local drug users found the beaten and partially burned body of Margaret Sewap on the ground behind a building near downtown Prince Albert at approximately 6 a.m. on April 8, 2011. The body was nude and in a fetal position. Ms. Sewap’s clothes were scattered nearby. There was a lot of snow on the ground in the immediate area. Agreed statements of facts, paras. 1–7; Exhibit P-1, photographs of the crime scene 6. Forensic pathologist, Dr.

Shaun Ladham conducted an autopsy on Ms. Sewap’s body a few days later. He noted several external injuries including several abrasions and contusions on the right forehead, inside the mouth, left shoulder, all four extremities, the back and left buttock. He found multiple lacerations on the victim’s anus. Most of these were superficial but one was large and very deep, extending to the rectum. Burn marks covered 18 to 25% of the victim’s body. Exhibit P-3, pp. 5–6 7. The victim did not die from being beaten. Someone strangled her to death. Dr.

Ladham concluded that she was still alive when the object which lacerated her anus was inserted into her body. However, in his opinion, she was not alive when the person who strangled her to death tried to burn her body. Exhibit P-3, p. 1, Exhibit P-4 8. The police seized fingernail clippings from the victim’s body. These were later submitted for DNA analysis. Agreed statement of facts, para. 36 9. The Appellant knew Margaret Sewap although there is no evidence indicating the precise nature of their relationship with each other. He was the last person to be seen with her when she was still alive.

A security video from the National Hotel in Prince Albert showed the Appellant and Ms. Sewap walking into the National Hotel lobby on April 7 at around 10:00 p.m. … Exhibits P-17 and P-18

(Summary, Crown Factum, pp. 3–9) [ 55 ] The National Hotel video also confirms that Ms. Sewap initiated two phone calls. During the first call, she passed the receiver to the appellant and he had a lengthy discussion with someone. During the second call, Ms. Sewap spoke to someone at length. While she was on the phone, the appellant made several intimate gestures towards Ms. Sewap, including touching her clothed abdomen with his gloved hand and then removing the glove on his right hand and attempting to insert his hand into the top of Ms. Sewap’s jeans. Ms.

Sewap clasped the appellant’s bare right hand with her right hand. She later embraced him with both hands. They then moved from the hotel lobby to the vestibule between the hotel’s outside and inside doors. While in the vestibule, the appellant appeared to remove something from a small bag and pass it to Ms. Sewap; she passed something back to him. Both had bare hands that touched the skin of the other person. They left the hotel, with the appellant leading and Ms. Sewap following behind. The Crown’s

Summary continues with the following: 10. The Appellant was next observed at about 3:45 the next morning when he showed up at the detox unit of the Victoria Union Hospital. He wanted to be admitted but the unit was full. Angela [Sheppard-]Froh was on duty that night and she spoke to the Appellant after he sat down in the waiting room. She described his demeanour [ sic ] as sullen and calm. He told her that he had nowhere to go. He said that he could not go home to his wife and that he had just broken up with his girlfriend.

He said he had been walking around for hours and had nowhere to go because of the problems he was having with his girlfriend and his wife. He appeared to be despondent and told Ms. Froh that his life always seemed to be going in the wrong direction. Then he said he did not want to live anymore. Trial transcript, pp. T89–T96 (p. 4) [ 56 ] Ms. Sheppard-Froh saw the appellant’s bare hands and observed no bruises or scratches on them: Q And it -- it appeared to me that you probably spent a good, maybe or 20 minutes right beside him, having a talk with him.

Would you agree that that’s about a -- roughly a rough -- an accurate time estimate? A Yes, sir. Q Okay. And I just see that it didn’t appear that he was wearing any gloves at that time; is that -- is that right from what you can remember or observe on the video? A Was he wearing gloves right -- Q Yes. A Not that I -- Q It didn’t -- A -- noticed. Q -- appear that he was wearing any on the video; is that right? A Right. Q Yes, okay. And you didn’t observe any injuries or anything like that, nothing -- A No, sir. Q -- unusual about his hands? Okay, thank you very much, ma’am. A Okay. (Trial transcript, p.

T104) [ 57 ] The Crown’s

Summary continues by making reference to material found in the trial transcript: 11. Hospital protocol kicked in after he expressed the thought of killing himself. Ms. Froh told him she was going to admit him into the Emergency Department for the purposes of a psychological assessment. He agreed to be admitted. Trial transcript, pp. T96–T97 12. Constable Hobson of the Prince Albert City Police was dispatched to attend the hospital on April 8, 2011 at about 5:30 in the morning. He was told there was an intoxicated person in the Emergency Department that was causing problems.

He found the Appellant sleeping in one of the waiting rooms. The nurses had been unable to rouse him. He was detained for being drunk in a public place and lodged in cells. The officer did not handcuff the Appellant. A security camera captured the Appellant wringing his socks out after he was lodged in cells. Trial transcript, pp. T139–T142 and T147 13. The Appellant had been living with Joy Charles and her children on the Sturgeon Lake First Nation since November 2010. Ms. Charles was pregnant with his child in April 2011. She testified the Appellant was not employed and did not seem anxious to find employment.

She told him on several occasions that he had to start looking for work but he usually got upset when she did so. However,

on the evening of April 6, 2011, the Appellant told Ms. Charles that he was going to go to Prince Albert the next day to look for work. Trial transcript, pp. T112–T115 14. Ms. Charles dropped him off at the Sturgeon Lake store at about 8:30 in the morning on April 7, 2011. The Appellant told her he was going to hitchhike into Prince Albert and would be back for supper the same day. He did not keep his promise. He was away all day and all night. He phoned her about 4:30 in the afternoon the next day. He said he was at the store on Sturgeon Lake and asked her to pick him up. Ms. Charles was not amused.

When she drove to the store to pick him up, she asked him if he had fun. He said he did not. Ms. Charles said he smelled like stale alcohol. He was wearing the same clothes he was wearing when he left the day before. He was also carrying a bag of socks. The socks were wet. Trial transcript, pp. T115–116 and T125 15. Ms. Charles testified that she saw several fresh scratches on the Appellant’s upper right arm near his shoulder. She also saw marks on the knuckles of both his hands which caused her to believe he had been in a fight. She asked him for an explanation of the scratches and knuckle marks.

He told her they were caused by handcuffs. Based on the location of the marks and scratches, Ms. Charles believed he was lying to her. Trial transcript, pp. T120–T121 (Summary, Crown Factum, pp. 4–6) [ 58 ] Mr. Shaoulle was wearing a faded grey t-shirt when Ms. Charles noticed the aforementioned scratches: Q Okay. I’m just going to back up. So you -- you say he’s got scratches on his arms. When -- when he comes up then, what kind of a shirt is -- is he wearing that you’re able to see his arms? A He was wearing a faded grey t-shirt. Q Okay. A short-sleeved shirt? A A short-sleeved shirt.

Q Oh, okay, so you say that there’s -- there’s scratches on his -- his arms. Whereabouts on the arms are these -- are these scratches? A On his right arm, right here. Q Okay, you’re indicating your right-hand shoulder, up at the top? A Yes. (Trial transcript, p. 120) [ 59 ] The Crown

Summary continues with its sequence of events: 16. The Appellant told her that he had been arrested for being drunk in a public place. Ms. Charles wanted proof. He told her he had the ticket in his jacket pocket. She went downstairs to retrieve the jacket. When she picked it up she detected a faint odour that reminded her of fire. She testified that it did not really smell like burned wood but was more “perfumy” than that. The Appellant grabbed the jacket from her hands as she was sniffing it. He showed her a piece of paper but she had no idea if it was a ticket for being arrested or not. Trial transcript, pp.

T121–T122 17. Ms. Charles testified that the Appellant asked her if he could take a shower almost as soon as he got home. He also asked her if she would wash all the clothes he had worn when he was in Prince Albert. She told him that the water tank was empty so she could not wash his clothes and he could not shower. Trial transcript, p. T122 18. Ms. Charles testified that the Appellant was not acting normally after he returned from Prince Albert. He appeared to be withdrawn and was uncommunicative. He was smoking heavily. He would not leave her side.

He insisted on going to school with her and waiting outside in the car when she was in class. At night he would listen to the news on the radio by himself outside the house in her car even though she told him he could listen to the news on the radio or the television inside the house. He told her he wanted to do it in the car because the kids were too noisy. Ms. Charles found that explanation to be suspect because the kids were usually sleeping at the time. Trial transcript, p. T123 19. Ms.

Charles testified that she tried to initiate sexual relations with the Appellant a day or so after he returned from Prince Albert. She said that he smelled like he had been having sex with someone else. Trial transcript, p. T124 (Summary, Crown Factum, pp. 6–7) [ 60 ] At trial, however, Ms. Charles stated, “it had been some time since we were physical with one another” (Trial transcript, p. T124).

[ 61 ] The Crown

Summary continues: 20. The water truck arrived a couple of days after he returned. As soon as the tank was filled, the Appellant had a shower. Ms. Charles said she was doing the laundry when the Appellant came up behind her with all of the clothes he had been wearing when he was in Prince Albert. He threw the clothes into the washing machine which already had her dirty clothes in it. Ms. Charles found this behaviour to be very strange for a couple of reasons. First, the Appellant put the gloves he had worn in Prince Albert into the washing machine. Ms.

Charles had never seen anyone wash those kind of gloves in a washing machine. Secondly, she thought it was odd that he was taking any interest in the laundry given that he had never done so before. Trial transcript, p. T125 (Summary, Crown Factum, p. 7) [ 62 ] During the weeks leading up to April 7, 2011, Ms. Charles and Mr. Shaoulle sometimes argued when he would not communicate with Ms. Charles; she would become frustrated and push him: Q Okay.

And was part of the problem that he wouldn’t give you -- he wouldn’t want to talk with you about things, he would, kind of, just not give you answers to your questions; would that be fair to say? A Sometimes. Q Okay. And there were some times where you would get upset with him for not wanting to talk with you, and you would, in fact, push him; right? A That I would -- Q You would push him -- I’m sorry? A -- that I would push him? Q Yes, you would push him because you were upset with him for avoiding conversation with you? A I would push him because, you know, he didn’t want to give any effort.

He was drunk. (Trial transcript, p. T134) [ 63 ] The Crown

Summary continues: 21. The Appellant continued to act abnormally for the next several days. He continued to be withdrawn and uncommunicative until Ms. Charles finally had enough. She told him to leave on or about April 17, 2011. The Appellant packed up his belongings and left. He left the jacket he had worn to Prince Albert behind. Trial transcript, p. T126 (Summary, Crown Factum, p. 7) [ 64 ] Mr. Shaoulle’s post-April 8, 2011 conduct was similar to what it had been since November or December 2010: Q Right.

So he wasn’t talking to you about anything, and you were getting frustrated with him because of that; right? A Yes. Q Okay. Did he talk about suicide at all? A Yes, he did. Q Okay. Had he done that pretty much since you met him, in or about November or December, 2010? A Yes, he did. (Trial transcripts, p. T135) [ 65 ] The Crown’s

Summary continues as follows: 22. In the meantime, armed with the video from the National Hotel, Prince Albert City Police were actively looking for the person who was last seen with Margaret Sewap. On April 18 someone spotted the Appellant at the Gateway Mall in Prince Albert and, believing the Appellant matched the description of the male on the video, called police. Constable Court attended and located the Appellant. The Appellant agreed to accompany her to the police station and answer questions about Ms. Sewap. He was advised that he was not under arrest and that he was free to leave at anytime.

The interview started at approximately 1:00 p.m. Agreed statement of facts, paras. 59–62 23. At one point, the interviewing officer [Constable Dumont] left the interview room. When he was gone, the Appellant took a lighter from his jacket and began to burn a black glove that was in his possession. Other officers monitoring the interview intervened. The Appellant was advised that he was under arrest for obstructing the investigation. However, he was released without charge later the

following day. Agreed statements of facts, paras. 63–64 and 67 24. On April 19, 2011, the Appellant agreed to provide a bodily substance sample for the purposes of DNA analysis. The sample was taken at the Prince Albert police station. Agreed statement of facts, paras. 27–29 25. The Appellant’s DNA profile was compared to the DNA profiles found on several exhibits. In August 2011, the Forensic Science and Identification Services Laboratory reported that the Appellant’s DNA profile matched one of two DNA profiles found in the fingernail clippings that were taken from Ms.

Sewap’s left and right hands during the autopsy. The other DNA profile matched Ms. Sewap. Exhibit P-10 26. About 6 months later, on October 18, 2011, an authorization was granted pursuant to s. 184.2 of the Criminal Code permitting the police to intercept the Appellant’s private communications with an undercover police officer posing as a detainee. The Appellant was arrested for the first degree murder of Margaret Sewap on October 24. He was lodged in RCMP cells with the undercover officer. Their conversations were recorded. Agreed statement of facts, paras. 68–71 27.

The undercover officer told the Appellant that he was having serious relationship problems with his girlfriend. The Appellant told the officer that if it was him, he would kill the woman, burn the body and “dispose of her”. He also told the officer that if the woman scratched him they would have evidence against him. Exhibit P-26, transcript of October 25 cell shot, p. 27 (Crown Factum, pp. 7–9) [ 66 ] While the appellant’s counsel did not object to the basic facts outlined in the

Summary, he did not adopt them as being the only relevant evidence. I agree to the extent the answers given by Ms. Charles during the cross-examination of her by defence counsel are not adequately described in the

Summary. [ 67 ] No evidence was led regarding where Ms. Sewap lived, her occupation, or who she called from the payphone at the National Hotel, or whether she had family or friends who were aware of her relationship with the appellant and other persons of interest. Nor is there any evidence of the police having examined her place of residence. III. The Decision under Appeal [ 68 ] The learned trial judge convicted the appellant based on circumstantial evidence from which he inferred the appellant had murdered Ms. Sewap by strangling her.

He summarized the bases on which he arrived at his decision in these words: I am required to look at all of the evidence. And when I consider all of the circumstantial evidence, I come to the conclusion that I have, in that particular regard. And in terms of his evidence -- or her evidence -- Ms. Sewap’s [ sic ] evidence, it shows that Mr. Shaoulle was acting out of character. He was gone during the relevant time-frame. He said he was handcuffed. He wasn’t. He was clearly not being honest and forthright with Ms. Arthur [ sic ] in that particular regard.

And when she talks about those particular -- I’m sorry -- Ms. Charles. When Ms. Charles talks about those particular matters, they were difficult for her, but her observations were salient, they were cogent, and they were reliable. When I take her evidence, the evidence with the officer in the cell, in that particular regard, the video at the National Hotel showing them being together during that time, all of the circumstantial evidence, and not the least of which is the DNA evidence.

And while one could surmise or speculate that the transference of that DNA evidence could have come in some other innocent fashion, the overwhelming conclusion that I come to is that that transference occurred during a violent altercation between Mr. Shaoulle and Ms. Sewap that ultimately resulted in her death. She was violently, viciously sexually attacked. And I’m satisfied beyond a reasonable doubt that that was Mr. Shaoulle who undertook that.

And I’m satisfied beyond a reasonable doubt, for the reasons that the Crown has articulated, and with -- with which I completely agree, that the Crown has proven beyond a reasonable doubt that Mr. Shaoulle caused the death of Ms. Sewap while committing or having just committed a sexual assault upon her, and that he caused her death by strangulation. In relation to the count in the Indictment, which talks about the murder in relation to this particular matter, the circumstantial evidence satisfies me that it is the only reasonable and the only rational conclusion to be reached, is the guilt of Mr.

Shaoulle. (Judgment transcript, pp. T53–T54) IV. Jurisdiction and Standard of Review [ 69 ] Section 686(1) ( a )(

i) of the Criminal Code empowers an appeal court to set aside a verdict if it is unreasonable or cannot be

supported by the evidence, or the trial court erred on a question of law. The reasonableness standard is succinctly summarized in Biniarisat para 36: [36] The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot besupported by the evidence has been unequivocally expressed in Yebes as follows: [C]urial review is invited whenever a jury goes beyond a reasonable standard. … [T]he test is ‘whether the verdict is one that a properlyinstructed jury acting judiciously, could reasonably have rendered’. (Yebes, supra, at p. 185 (quoting Corbett v.

The Queen, (SCC), [1975] 2 S.C.R. 275 at p. 282, per Pigeon J.) That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court todetermine what verdict a reasonable jury, properly instructed, could judiciously have arrived at, and, in doing so, to review, analyze and,within the limits of appellate disadvantage, weigh the evidence.[1] [70] Where the decision is from a judge sitting alone, the appeal court is to identify defects or flaws in the trial judge’s analysisthat undermines the reasonableness of that decision.

This exercise requires the reviewing court to engage in a thorough re-examination ofthe evidence and to bring to bear the weight of its judicial experience and decide whether, on the whole of the evidence, the verdict is areasonable one.

It is well-established that once a reviewing court concludes that the test from Biniaris was met, it may not go on andsubstitute its own view of the evidence for that of the trial judge: see R v Burns, (SCC), [1994] 1 SCR 656. [71] In R v Wills, 2014 ONCA 178, 318 OAC 99 (aff’d 2014 SCC 73, [2014] 3 SCR 612), Doherty J.A. described the nature of thelens of judicial expertise to be applied and the function of an appellate court in paras. 30 and 31: [30] The “lens of judicial experience” refers to the appellate court’s examination of the cogency of the evidence as informed by thecourt’s awareness of the risk of wrongful convictions associated with certain kinds of cases and certain kinds of evidence.

The court, asan institutional participant in the criminal justice system, has an appreciation of those risks that a jury in a specific case cannot have. [31] Section 686(1)(a)(

i) requires the appellate court to independently weigh the totality of the evidence. The court weighs the evidence,however, not with a view to making its own assessment as to the appropriate verdict, but for the more limited purpose of determiningwhether the verdict is beyond the reasonableness limit. In making that assessment, the court must give due weight to the advantage ajury gains from actually seeing the witnesses and hearing the narrative unfold: see W.H. at para. 27. V. Issues and Analysis A.

Positions of the Defence and the Crown [72] The appellant maintains the Verdict is unreasonable and is not one that a properly instructed trier of fact, acting judicially,could have reached based on the evidence before the trial judge. In support of his submission, he referred to the following alleged errorsby the learned trial judge: (

a) He misinterpreted and over-emphasized the importance of the testimony and opinions provided by Ms. Charles and failed toconsider that the events she referred to were events unrelated to the death of Ms. Sewap and directly related to the appellant’s knownmental health problems; (

b) He misinterpreted the nature of the discussion between the appellant and Constable McAdam, the uncover police officer,which was audio recorded, transcribed and entered at trial as part of the Crown’s evidence; and (

c) He misinterpreted the appellant’s attempt to burn part of his glove (torn), while he voluntarily waited in a jail cell for theresumption of an interview of him by police officers, as an attempt to destroy incriminatory evidence approximately seven days after thegloves were washed as part of his laundry. [73] The Crown’s position is that the Verdict is reasonable and supported by the whole of the evidence, including thecircumstantial evidence. B.

Jurisprudence on Circumstantial Evidence [74] The grounds of appeal (broken down into specific issues) bring into play the law governing the manner in which a trier of factmay rely on various forms of circumstantial evidence—including post-offence conduct—to infer beyond a reasonable doubt that theaccused committed a criminal offence.

Given the complexity involved in inferring culpability based on circumstantial evidence, a briefreview of the law governing the usage thereof is appropriate, particularly in the instant case where a serious crime is involved: theappellant will be incarcerated for most of his remaining life, and his conviction is materially founded on the trier’s

interpretation of hispost-offence conduct. [75] In Watt’s Manual of Criminal Evidence (Toronto: Carswell, 2014), Mr. Justice David Watt described the various forms ofcircumstantial evidence as follows: Circumstantial Evidence 9.01 — General Principles

Commentary Circumstantial evidence is any item of evidence, testimonial or real, other than the testimony of an eyewitness to the material fact. It isany fact from the existence of which the trier of fact may infer the existence of a fact in issue. It is for the trial judge to determinewhether circumstantial evidence is relevant. Where evidence is circumstantial, it is critical to distinguish between inference and speculation. An inference is a deduction of fact thatmay logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings.

There canbe no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven factsfrom which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture. In circumstantial evidence cases, three types of argument are made in support of relevance: i. prospectant; ii. concomitant; and iii retrospectant. Prospectant use of circumstantial evidence involves an argument that the past or previous occurrence of

an act, state of mind, or state ofaffairs justifies an inference that the act was done, or state of mind or affairs existed at the time that is material to the proceedings. Concomitant use of circumstantial evidence involves an argument that circumstances existing contemporaneously with the materialtransaction render the facts alleged by either of the parties more or less probable. Retrospectant use of circumstantial evidence invokes reasoning that the subsequent occurrence of

an act, state of mind, or state ofaffairs justifies an inference that the act was done, or state of affairs or mind existed in the past at the material time. (Bold emphasis in original, italic emphasis added, p. 48) [76] Retrospectant conduct is otherwise described as post-offence conduct and is defined in R v Turcotte, 2005 SCC 50 at para 37,[2005] 2 SCR 519: [37] “Post-offence conduct” is a legal term of art. It is not meant to be a neutral term embracing all behaviour by an accused after a crimehas been committed, but only that conduct which is probative of guilt.

It is by its nature, circumstantial evidence. [77] In R v White, 2011 SCC 13, [2011] 1 SCR 433 [White 2011] Rothstein J. articulated the relationship between circumstantialevidence and post-offence conduct as follows: [22] The principle that after-the-fact conduct may constitute circumstantial evidence of guilt remains good law. At its heart, the questionof whether such evidence is admissible is simply a matter of relevance (White (1998), at para. 23 [R v White, (SCC),[1998] 2 SCR 72]).

As Major J. noted in White (1998), “[e]vidence of post-offence conduct is not fundamentally different from otherkinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborativerole” (para. 21). As with all other evidence, the relevance and probative value of post-offence conduct must be assessed on a case-by-case basis (para. 26). Consequently, the formulation of limiting instructions with respect to the broad category of post-offence conduct isgoverned by the same principles as for all other circumstantial evidence.

Thus, while the term “consciousness of guilt” may have fallenout of use, it is still permissible for the prosecution to introduce evidence of after-the-fact conduct in support of an inference that theaccused had behaved as a person who is guilty of the offence alleged—provided that, as with all circumstantial evidence, its relevance tothat inference can be demonstrated. [78] Prior to White 2011, a trier of fact was entitled to convict the accused based on circumstantial evidence only if the trier was“satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that theaccused is guilty” (R v Griffin, 2009 SCC 28 at para 33, [2009] 2 SCR 42 [Griffin]).

Although White 2011 has relaxed the standardarticulated in Griffin, it implicitly requires the trier to exercise caution in order to avoid convicting an innocent person based on aninference founded on circumstantial evidence. [79] In R v Rodgerson, 2014 ONCA 366, 319 OAC 254 [Rodgerson], Doherty J.A. summarized how post-offence conduct may beapplied: [50] Post-offence conduct is potentially circumstantial evidence of a fact in issue.

Its relevance depends on whether, considered inthe context of the rest of the evidence, the issues raised at trial and the positions of the parties, it makes the existence or non-existence ofa fact in issue more likely: R. v. White, 2011 SCC 13 , [2011] 1 S.C.R. 433 (White #2); R. v. Peavoy (1997), (ON CA), 34 O.R. (3d) 620 (C.A.), at pp. 628-29; R. v. P.J.B., 2012 ONCA 730 , 298 O.A.C. 267, at para. 74; R. v. J.A.T., 2012ONCA 177 , 288 C.C.C. (3d) 1, at paras. 142–43. Like all circumstantial evidence, post-offence conduct may be relevant tosome issues and not to others.

Relevance to one material issue is generally a ticket to admissibility. (As with any other evidence, post-offence conduct that is relevant can be excluded where its prejudicial effect outweighs its probative value: see White #2, at para. 45, perRothstein J.) Thus, evidence of flight from the scene of an assault is relevant to the issue of identity as it is more likely that the individualwho fled the scene was the perpetrator of the assault.

Evidence of flight is, however, irrelevant to the nature of the assault inflicted asflight does not make it more likely that the person who fled stabbed rather than struck the victim: see Arcangioli. Like other evidence, ifevidence of post-offence conduct is relevant to one fact in issue but not to others, a limiting instruction to the jury may be necessary. [51] Post-offence conduct need not point to only one reasonable inference to be relevant and admissible to prove a fact in issue.

Ifthe inference urged by the Crown is reasonably available, the post-offence conduct will be left with the jury who, after considering anycompeting inferences available, will determine what effect, if any, should be given to the post-offence conduct evidence: R. v. Allen,2009 ABCA 341 , 15 Alta. L.R. (5th) 1, at paras. 67–68, aff’d, 2010 SCC 42 , [2010] 2 S.C.R. 648.

[52] Could the evidence of the appellant’s actions said to constitute post-offence conduct reasonably support the inference of intent urged by the Crown? That question must be addressed in respect of each of the three categories of post-offence conduct. It does not follow that, because some post-offence conduct is reasonably capable of supporting an inference supportive of the existence of the necessary intent, all post-offence conduct is relevant to that issue. [ 80 ] S. Casey Hill, David M. Tanovich, and Louis P.

Strezos, McWilliams’ Canadian Criminal Evidence, loose-leaf (2014-4) 5th ed, vol 3 (Toronto: Canada Law Book, 2014) at 31:160.20 summarized the recognized dangers that arise when the after-the-fact conduct of an accused is taken into account: There are recognized dangers relating to after-the-fact conduct: (1) in many situations, an inference of consciousness of guilt may be uncertain and ambiguous—can it be determined what a typical human reaction is in circumstances or whether this accused’s conduct was impelled by feelings of guilt or the desire to avoid detection? [see White 2011 at paras. 79 and 87] (2) evidence apparently supporting an inference of consciousness of guilt may also be quite capable of an innocent explanation [see R v D.C. , 2012 SCC 48 at para 26 , [2012] 2 SCR 626] (3) after-the-fact conduct may be afforded undue significance [see White 2011 at para. 55] (4) the trier of fact may be tempted to leap too quickly to infer guilt or to rush directly from an inference of consciousness of guilt to a conclusion of guilt without consideration of all the evidence [see White 2011 at para. 23]. (pp. 31-111–31-112) [ 81 ] As noted in Rodgerson , because post-offence conduct on the part of the accused is supportive of a material issue (e.g., identity), it does not implicitly make the accused’s other post-offence conduct relevant to the issue or to another distinct issue.

C. Reweighing of Circumstantial Evidence [ 82 ] In this case, there is evidence establishing the following: (

a) Ms. Sewap was physically assaulted, sexually assaulted and murdered sometime between 10:30 p.m. on April 7 and 6:00 a.m. on April 8, 2011; (

b) the appellant’s DNA was not found on or in Ms. Sewap’s body other than on nail clipping taken from Ms. Sewap’s fingers; (

c) the appellant knew Ms. Sewap and was with her at the National Hotel between 10:15 p.m. and 10:30 p.m. on April 7, 2011; (

d) the appellant entered the Victoria Hospital Detox Centre at approximately 3:45 a.m. on April 8, 2011, and at that time exhibited a depressive mental state which he had experienced on prior occasions; and (

e) he was examined and treated at the hospital’s emergency unit and thereafter taken into protective custody by the police service until sometime after 6:00 a.m. on April 8, 2011. [ 83 ] There is no direct evidence of the appellant being with Ms. Sewap when she died. In these circumstances, the Crown of necessity relied on circumstantial evidence as a means of proving or attempting to prove beyond a reasonable doubt that the appellant killed Ms. Sewap. The trial judge, in turn, found the appellant guilty of murder based, in part, on his

interpretation of the circumstantial evidence relied on by the Crown, including the appellant’s post-offence conduct. [ 84 ] As part of the appellate process, I am to reweigh the totality of the evidence for the purpose of determining whether the trial judge’s decision meets the Yebes Test. To that end, I have reviewed the evidence, and particularly the post-offence conduct of the appellant on which the trial judge based his ultimate inference that the appellant had killed Ms.

Sewap. [ 85 ] While the trial judge was entitled to rely on the circumstantial evidence when determining whether the essential elements of the offence of murder had been proven beyond a reasonable doubt, each circumstantial event he relied upon must be supportive in proving an issue material to the death of Ms. Sewap. Thus, each item of circumstantial evidence the trial judge relied on is to be considered having regard to its relevance to a material and discrete issue. Its probative value is also to be taken into account.

To that end, I have examined the whole of the circumstantial evidence, including distinct post-offence conduct by the appellant upon which the trial judge inferred the appellant had murdered Ms. Sewap. For ease of reference, specific items comprising the appellant’s post-offence conduct and the submissions by the appellant and the Crown counsel regarding the relevance of each conduct are addressed under separate sub-headings:

(1) National Hotel video record; (2) evidence and opinions of Ms. Charles: (

a) Ms. Charles’s evidence on depression; (

b) the odour of smoke; (

c) lack of sexual intimacy; (

d) appellant’s desire to wash his clothes;

(

e) scratched knuckles and arm; (3) burning of the glove; (4) conversation with Constable McAdam;

(5) Ms. Sewap’s DNA. 1. The National Hotel Video Record [ 86 ] The Crown accurately described what took place between Ms. Sewap and the appellant at the Nation Hotel: see paras. 10 and 9 of the

Summary. This event is relevant but only to the extent it establishes the appellant knew Ms. Sewap, was with her approximately between 10:00 p.m. and 10:30 p.m. on April 7, 2011, and they were more than casually familiar with each other. By itself, the National Hotel event does not prove that the appellant killed Ms. Sewap simply because he was with her within the six-hour time frame she was murdered. 2. Evidence and Opinions of Ms. Charles [ 87 ] Ms. Charles testified that she observed the following after the appellant returned home sometime after 4:00 p.m. on April 8, 2011: (

a) he was depressed, uncommunicative, and withdrawn; (

b) his clothes emitted a smoke odour, which she was unable to identify but thought it was similar to smoke generated by burning wood but “perfumey”; (

c) he avoided sexual intimacy and did not want to remain alone at home and wanted to accompany her whenever she left their home; (

d) his knuckles were scratched and he had a fresh scratch on his right shoulder; (

e) her relationship with the appellant had been unsatisfactory for some time; and (

f) she asked him to leave. [ 88 ] The Crown submitted to the trial judge that the conduct of the appellant, as described by Ms. Charles, was of sufficient probative value to warrant the trial judge inferring that it reflected a consciousness of guilt by the appellant related to the murder of Ms. Sewap. The trial judge found Ms. Charles to be a credible witness and accepted her description of the appellant’s behaviour and her

interpretation of his mental state. The trial judge also based his decision in part on the inferences suggested by the Crown. Against this background, I reviewed the evidence of Ms. Charles as part of reweighing the totality of the evidence process and for the purpose of generally assessing the relevance and probative value of the consciousness of guilt inference made by the trial judge. That said I turn to specific events described by Ms. Charles and their relevance and probative value. a. Ms. Charles’s Evidence on Depression [ 89 ] Ms.

Charles characterizing the appellant’s mental state as being unusual is factually inconsistent with her description of prior occasions when he exhibited similar symptoms. During cross-examination of her by defence counsel, Ms. Charles admitted that during her relationship with the appellant (dating back to 2010) there were times when the appellant was depressed, uncommunicative and suicidal, and during those times he refused to communicate with her, or to seek employment. She confirmed that his mental state and reluctance to seek employment had irritated her weeks before April 2011 and had led

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