R v Wolff, 2019 SKCA 103

Court of Appeal for Saskatchewan Docket: CACR3176 Citation: R v Wolff , 2019 SKCA 103 Date: 2019-10-16 Between: Taylor James Wolff Appellant And Her Majesty the Queen Respondent Before: Whitmore, Leurer and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Whitmore The Honourable Mr. Justice Leurer On Appeal From: 2018 SKQB 220 , Saskatoon Appeal Heard: September 11, 2019 Counsel: Bradley S. Mitchell for the Appellant W. Dean Sinclair, Q.C. for the Respondent Kalmakoff J.A. I.

Introduction [ 1 ] After a trial, the appellant, Taylor Wolff, was convicted of the second degree murder of James Carlson. The appellant appeals the conviction, arguing that the trial judge, who heard the case without a jury, made a number of significant errors. [ 2 ] For the reasons that follow, I would dismiss the appeal. II. FACTUAL BACKGROUND [ 3 ] Mr. Carlson lived in Watrous, Saskatchewan. He was a farm equipment mechanic. He and the appellant were, at one time, friends. [ 4 ] On October 19, 2007, Mr. Carlson was arrested by the Saskatoon Police Service for possession of illegal drugs.

Subsequent to that arrest, Mr. Carlson gave a statement, which led to the appellant being charged with possession of a controlled substance for the purpose of trafficking. [ 5 ] The appellant faced a preliminary inquiry, in relation to those charges, on June 9, 2008. Mr. Carlson had been subpoenaed to testify as a witness for the Crown, but he disappeared before the preliminary inquiry was held. [ 6 ] The last time anyone saw Mr. Carlson was on the evening of May 14, 2008. He was scheduled to work at a farm near Watrous the next day, but never arrived. A few days later, Mr.

Carlson’s friends and family became concerned about his absence. One of his friends, Blair Schroeder, went to Mr. Carlson’s residence and forced his way in. Mr. Schroeder noticed some things that were unusual. The living room lights had been left on, there was a blanket on the living room floor, and there were dark stains in the bottom of the bathtub. A short time later, Mr. Carlson’s 1984 GMC 1500 pickup truck – the one he drove for work – was located abandoned in a field near Allan, Saskatchewan. After that, Mr. Carlson’s parents filed a missing person report. [ 7 ] Mr.

Schroeder would also later tell the police that Mr. Carlson had been afraid of the appellant. He said Mr. Carlson told him, on several occasions over the last months before his disappearance, that if something should happen to him, Mr. Schroeder should tell the authorities to investigate the appellant. [ 8 ] On May 20, 2008, RCMP Forensic Identification officers examined Mr. Carlson’s house. Their investigation confirmed that the stains Mr. Schroeder had observed in the bathtub were blood stains. DNA testing confirmed that it was Mr. Carlson’s blood.

There were bloodstains found in other areas of the house, and the bloodstain patterns were consistent with Mr. Carlson having received a bloodletting injury, after which he came into contact with a couch in the living room, moved around and bled at various other locations within the house. It was also apparent that someone had made efforts to clean up the blood. [ 9 ] RCMP officers located two bullets in Mr. Carlson’s house that had been fired from a .22 calibre rimfire firearm.

One bullet had gone through the couch in the living room, and lodged in the floor below, while the other had lodged in the living room wall. [ 10 ] Mr. Carlson’s body was never found, and the case went unsolved for a number of years. [ 11 ] However, a number of witnesses said they had seen the appellant near Mr. Carlson’s house on the night before he disappeared. Others said that, around that time, they had observed the appellant driving a car that was similar in description to the 1985 Chevrolet Monte Carlo that Mr. Carlson owned. That car was later abandoned in a bluff of trees near Rosthern, Saskatchewan.

An acquaintance of the appellant, Trevor Quessy, told the police that he had seen the appellant with a car matching that description, around the time Mr.

Carlson went missing. When Mr. Quessy asked the appellant where he had obtained the car, the appellant responded: “We’ll just say someone screwed up”. [ 12 ] Another person, April Hards, told police of a conversation she had with the appellant in the spring of 2008. This conversation concerned the appellant’s upcoming court appearance in relation to the possession for the purpose of trafficking charges. Ms. Hards was troubled that the appellant might go to jail. She said, during this conversation, the appellant had told her not to worry about that, because he was going to “take care” of Mr.

Carlson. [ 13 ] In late March of 2013, Lindsay Reiber, a friend of the appellant, told police about a conversation she had with the appellant in May of 2008, in which he admitted to shooting James Carlson and disposing of his body in a well. [ 14 ] Police subsequently obtained a DNA sample from the appellant. Analysis of that sample confirmed that the appellant’s DNA was located on two cigarette butts and the neck area of a bottle of cleaning solution that had been found in Mr.

Carlson’s residence during the RCMP’s initial examination. [ 15 ] Eventually, the police arrested the appellant, and charged him with second degree murder. He was tried by a judge sitting without a jury. The trial judge, in a reported written decision cited as R v Wolff , 2018 SKQB 220 [ Trial Decision ], found the appellant guilty. He went on to impose the mandatory life sentence and set the appellant’s parole ineligibility period at 10 years. III. the grounds of appeal [ 16 ] The appellant raises a number of grounds of appeal, which can be accurately described as follows: (

a) the trial judge erred in his assessment of the testimony of Blair Schroeder and Lindsay Reiber in two ways: (

i) his conclusion that each of these witnesses was credible was unreasonable and contrary to the evidence; and (ii) regardless of his conclusions regarding credibility of these witnesses, the trial judge failed to consider whether their evidence was reliable; (

b) the trial judge erred in his assessment of the evidence, in that the Crown’s case relied on circumstantial evidence, and the trial judge failed to consider whether that evidence supported reasonable inferences other than the guilt of the appellant; (

c) the trial judge’s conclusion that the Crown had proven the appellant had the intent necessary for murder was unreasonable and contrary to the evidence; (

d) the trial judge erred in failing to find that the defence of provocation should apply to reduce the conviction to manslaughter; and (

e) the trial judge erred in failing to consider the defence of self-defence. [ 17 ] I will address each of these grounds in turn. IV. analysis A. The alleged errors in the trial judge’s assessment of the testimony of Blair Schroeder and Lindsay Reiber [ 18 ] The appellant argues that the trial judge erred by finding the evidence of two key crown witnesses, Mr. Schroeder and Ms. Reiber, to be credible.

He argues that such a finding, with respect to each witness, is both unreasonable and contrary to the evidence. [ 19 ] The appellant further contends that the trial judge erred by failing to consider whether the evidence given by the same two witnesses was reliable, regardless of his finding with respect to their credibility. 1. Blair Schroeder’s testimony [ 20 ] Mr. Schroeder testified that he had a conversation with Mr. Carlson, after Mr. Carlson had been arrested on drug-related charges, but before he went missing. He said that Mr. Carlson was agitated, and worried about what the appellant might do to him. Mr.

Schroeder testified that Mr. Carlson said to him: “If I ever go missing, I want you to turn the police on Taylor Wolff”. He testified that Mr. Carlson said similar things on a number of occasions over the next year or so, before his disappearance. [ 21 ] During cross-examination, counsel for the appellant pressed Mr. Schroeder on this issue. Mr. Schroeder admitted that, despite his concerns about Mr. Carlson’s disappearance, he did not mention these conversations when he gave his initial statement to the police on May 20, 2008. The first time Mr.

Schroeder mentioned these conversations in the context of a formal statement was the day the trial began, more than ten years after Mr. Carlson’s disappearance. Mr. Schroeder maintained, however, that despite not having previously provided a formal statement about these conversations, he had told police officers about them at various times over the intervening decade. Mr. Schroeder also acknowledged that, in the small community of Watrous, there had been much discussion of the case over the years, and that rumors and theories abounded. [ 22 ] The trial judge accepted Mr. Schroeder’s evidence.

In that regard, he wrote:

[159] In considering the probative value of this evidence provided by Blair Schroeder, I am mindful of the cross-examination of Mr. Schroeder and his concluding remarks. Mr. Schroeder acknowledged that he had given the police a statement on Tuesday, May 20, 2008 and that such statement was the truth. He also acknowledged that in that statement he did not tell them anything about Taylor Wolff. He further agreed that on June 11, 2018, the day of the commencement of this trial, he provided a further statement to the police and in that statement mentioned Taylor Wolff in the fashion he recited to the Court.

Upon being pressed by counsel the witness Schroeder indicated that once he read his statement he realized that it was not in his statement. He also took issue with the suggestion that the first time that he had told anyone regarding Carlson’s comments about Taylor Wolff was on June 11, 2018. He testified that that was not the case as he had talked to the investigators many times over the years, and while it was not written down, the conversations did occur.

He said that he did not think that the RCMP were looking at anyone other than Taylor Wolff, but in any event, the police were aware of it, and while he never made a formal statement, they talked many times. He did not think it was a particularly big deal, that being the involvement of Taylor Wolff, as again it was his understanding that the authorities were not looking at anyone other than Taylor Wolff.

In May 2008 he further testified that he was just not in a mindset to recall all the details and commented “We didn’t know what had happened.” While the evidence of Blair Schroeder was admissible under the Supreme Court’s rationale in Griffin , there remains the question of how much weight or probative value I ought to ascribe to his evidence. [160] Were the evidence before me simply that the witness had made a first statement on May 20, 2008 and then had not mentioned the fact again until the opening day of this trial, I would ascribe little or no weight to his comments as to the purported statements made to him by James Carlson.

However, I carefully observed the witness, and I accept his qualifying comments which came at the end of his testimony. I am satisfied that he had talked to the authorities about the matter in the interim and that while no formal statement was taken, he had conveyed to the authorities the statements made to him by James Carlson. Accordingly, I find Blair Schroeder’s evidence to be credible, and I find as a fact that James Carlson made the statements to him regarding Taylor Wolff which Blair Schroeder testified to.

This evidence goes solely to the issues as defined by the Supreme Court in Griffin and not to any state of mind of the accused. … [178] Blair Schroeder’s evidence provides evidence of motive on the part of Taylor Wolff to harm James Carlson. It goes to the end of negating the proposition that someone else may have caused James Carlson’s death. [ 23 ] The appellant takes no issue with the trial judge’s decision regarding the admissibility of Mr. Schroeder’s evidence about the conversations he had with Mr. Carlson, or the purpose for which it was admitted.

His quarrel is with the fact that the trial judge accepted Mr. Schroeder’s evidence as credible and relied upon it.

The appellant argues in his factum that “the evidence is clear that Schroeder was not being truthful with regard to the alleged statements made by Carlson about his fear of the Appellant”, and that “Schroeder provided inconsistent, contradictory, and illogical explanations as to why he did not initially tell the police about Carlson’s fear of the Appellant and why it was never recorded by the police”. [ 24 ] The appellant acknowledges the deferential standard of review applicable to findings of credibility, but argues that this is a “rare” situation calling for this Court to interfere and set aside the trial judge’s findings. [ 25 ] The appellant also argues that, regardless of the trial judge’s conclusion with respect to credibility, Mr.

Schroeder’s evidence should not have been accepted because it could not properly be seen as reliable. He contends that the trial judge erred by not specifically considering the reliability of Mr. Schroeder’s evidence, in light of the influence factors such as the passage of time and exposure to the rumour mill would have had on Mr. Schroeder’s perception and memory. [ 26 ] The Crown, in response, refers to the applicable standard of review, and argues that the trial judge’s findings of credibility were clearly stated and were supported by the evidence. As such, they are entitled to deference.

The Crown also says that even though the trial judge did not specifically refer to credibility and reliability as distinct concepts, it is apparent from the Trial Decision that he considered both elements when assessing the testimony of Mr. Schroeder and Ms. Reiber. The trial judge’s specific reference to factors such as corroboration, says the Crown, demonstrates that he turned his mind to the accuracy of their testimony, as well as its veracity. 2. Lindsay Reiber’s testimony [ 27 ] Ms. Reiber’s evidence was crucial to the Crown’s case against the appellant. [ 28 ] Ms.

Reiber testified that she met the appellant in the early 2000s. Drug use, in particular methamphetamine, was their primary common interest. Ms. Reiber said she lived with the appellant for a period of time in Watrous, and later in Saskatoon. She recalled a conversation in the spring of 2008, during which the appellant told her that he was frustrated with Mr. Carlson because Mr. Carlson owed him money. She said this conversation took place while she was sorting through some items in her garage. She had come across some loose .22 calibre ammunition, which she gave to the appellant. [ 29 ] Ms.

Reiber also recalled a subsequent conversation that occurred a short time later, when the appellant came to the house she shared with Mr. Quessy. She testified that she went outside with the appellant and they smoked a joint. The appellant had arrived that evening in an older, 1980s car, which she described as a “Cutlass”. He was shaky, not calm. He told her he had “gone to James’s house to confront him, and that James had come at him with a sword … and that he had shot him and there was a lot of blood”. Ms. Reiber also testified that the appellant told her he had disposed of Mr.

Carlson’s body in a well, and that it would never resurface because the well led to an underground waterway. She testified that the appellant also mentioned that Mr. Carlson was still alive when he was thrown down the well and that rocks were thrown on top of him. [ 30 ] When she was cross-examined, Ms. Reiber acknowledged that she had a criminal record that included convictions for drug offences, robbery, public mischief, uttering forged documents, mischief, theft, possession of stolen property, and breaches of various court orders.

She admitted that she had not been truthful in her first statement to the police; she lied about providing the .22 calibre ammunition to the appellant. She also admitted to regular and significant drug use between 2003 and 2016, which included an addiction to methamphetamine. [ 31 ] Ms. Reiber acknowledged that in her first statement, given to police in August of 2008, she said the appellant came to her

house, and told her he had “dealt with” Mr. Carlson. In that statement, Ms. Reiber also told the police that the appellant said he was eithergoing to have Mr. Carlson’s car signed over to him or be paid in cash to cover whatever debt was owed to him. She said nothing in thatstatement about the appellant admitting to shooting Mr. Carlson. [32] Ms. Reiber also acknowledged other inconsistencies between her initial statement and her in-court testimony. For instance, inthe statement, she mentioned that the appellant was wearing a particular leather jacket, similar to one that others described Mr. Carlson asowning.

She did not mention this jacket during examination in-chief. [33] Ms. Reiber was also cross-examined about how it came to pass that, in April of 2013 she gave another statement to police, inwhich she described the conversation where the appellant admitted to shooting Mr. Carlson. She acknowledged hearing many rumors inthe community in the years between 2008 and 2013. She also admitted to being arrested for trafficking in methamphetamine, but deniedimplicating the appellant in order to gain her release from custody in relation to that arrest.

She agreed that she received financialcompensation for providing information about the appellant to the RCMP in 2013, but said her motivation in providing this informationwas not financial gain, or to try to carve out a new life for herself. She maintained that, in her 2008 statement, she was trying to protect theappellant because he was her friend. She said that in 2013 she was motivated by a desire to bring closure to the families involved, and leteveryone move forward. [34] The trial judge accepted Ms. Reiber’s testimony. In that regard, he said: [169] As noted, I find Lindsay Reiber to be a credible witness.

I am satisfied that Taylor Wolff spoke the comments to Lindsay Reiberthat she ascribed to him. Her evidence is capable of standing on its own in my view, but as I have indicated, there is other evidence,circumstantial evidence, which serves to corroborate her testimony. [35] The appellant argues that the trial judge failed to give proper weight to what he calls “significant evidence which suggested[Ms.

Reiber] should not have been believed”, including her criminal record, her history of lying to police and other persons in positions ofauthority, her history of dishonest conduct such as lying to and stealing from her boyfriend, the inconsistency of the various accounts sheprovided about the relevant events, the motivation for her varying accounts, and her evasiveness in answering questions. The appellantalso asserts that the trial judge failed to give adequate weight to the fact that Ms.

Reiber was a regular user of methamphetamine duringthe relevant time period, and under the influence of that drug when she had the conversations with the appellant that formed the crucialparts of her testimony. [36] Similar to his submissions regarding the testimony of Mr. Schroeder, the appellant asserts that this is a “rare” situation callingfor this Court to interfere and set aside the trial judge’s findings on credibility notwithstanding the deferential nature of the applicablestandard of review. [37] Also, as he did with respect to Mr.

Schroeder, the appellant argues that, regardless of the trial judge’s conclusion concerningMs. Reiber’s credibility, the trial judge should not have accepted Ms. Reiber’s testimony because it could not properly be seen as reliable. 3. The applicable legal principles [38] It is clear that there are two important aspects for a trier of fact to consider in assessing the testimony of witnesses: (i)credibility, and (ii) reliability. Credibility has to do with the veracity of witness’s testimony; reliability has to do with its accuracy.

Awitness who is credible may provide unreliable evidence, because honest witnesses can misperceive events, have poor memory, or just bewrong. [39] The trier of fact must consider both aspects of a witness’s testimony and, as the Manitoba Court of Appeal noted in R vPerrone, 2014 MBCA 74, 383 DLR (4th) 683 (affirmed 2015 SCC 8, [2015] 1 SCR 473), the distinction between credibility andreliability is an important one, and must be recognized by a trial judge in order to reach a just verdict.

A failure on the part of the trialjudge to consider the reliability of a witness’s evidence may lead to appellate intervention: R v Patrick, 2017 SKCA 95 at para 58[Patrick]; R v Burke, (SCC), [1996] 1 SCR 474 at para 46 [Burke]. That said, it is not necessary that a trial judge’sreasons address credibility and reliability separately, as long as he or she demonstrates that both aspects of the evidence have beenconsidered: Patrick at paras 68–77. [40] Credibility findings involve questions of fact, not law: R v Boyer, 2018 SKCA 6 at para 56, [2018] 6 WWR 322; R v W.H.,2013 SCC 22 at 33–34, [2013] 2 SCR 180.

As such, assessments of credibility are subject to a highly deferential standard of review. Anappellate court cannot interfere with a trial judge’s assessment of credibility unless it is established that such assessment cannot besupported on any reasonable view of the evidence: Boyer at para 58; Burke at para 7; R v R.P., 2012 SCC 22 at para 10, [2012] 1 SCR 746[R.P.]; R v Piapot, 2017 SKCA 69 at para 40, 15 MVR (7th) 1.

Findings of reliability are also factual determinations and subject to thesame deferential standard of review: R v Schaff, 2017 SKCA 103 at para 44; R v Murphy, 2019 SKCA 8 at para 17, [2019] 6 WWR 216. [41] This is not to say that an error in a trial judge’s assessment of the evidence can never amount to a legal error. When a trialjudge’s assessment of the evidence is based on a wrong legal principle, it will constitute an error of law: Boyer at para 56; R v J.M.H.,2011 SCC 45 at para 29, [2011] 3 SCR 197 [J.M.H.].

A legal error made in the assessment of credibility may displace the deferenceusually afforded to a trial judge’s credibility assessment and may require appellate intervention: R v A.M., 2014 ONCA 769 at para 19,123 OR (3d) 536. 4. The principles applied to the evidence of Blair Schroeder [42] The appellant argues that the trial judge’s assessment of credibility was flawed because he focused solely on demeanour infinding that Mr. Schroeder was a credible witness. The appellant says this error is revealed at paragraph 160 of the Trial Decision, wherethe trial judge, in describing why he accepted Mr.

Schroeder’s testimony said he “carefully observed the witness, and I accept hisqualifying comments”. [43] With respect, I see no error in the way the trial judge dealt with the assessment of Mr. Schroeder’s credibility.

[ 44 ] Although a legal error may result from basing a credibility assessment on irrelevant or inappropriate considerations (see, for example, R v Santhosh , 2016 ONCA 731 at para 8 , 342 CCC (3d) 41; R v Thompson , 2019 BCCA 1 , 370 CCC (3d) 354), no such error is revealed by the trial judge’s reasons in this case. [ 45 ] A trial judge is entitled to consider a witness’s demeanour in assessing the credibility of his or her evidence: R v N.S. , 2012 SCC 72 , [2012] 3 SCR 726; R v Gagnon , 2006 SCC 17 at para 20 , [2006] 1 SCR 621; R v Jabarianha , 2001 SCC 75 at paras 30–31 , [2001] 3 SCR 430; R v Brooks , 2000 SCC 11 at para 6 , [2000] 1 SCR 237; R v Devine , 2008 SCC 36 at para 28 , [2008] 2 SCR 283.

That said, reliance on demeanour must be approached cautiously. There is considerable support in the jurisprudence for the principle that a witness’s demeanour must not become the exclusive determinant of his or her credibility, or of the reliability of his or her evidence (see, for example, R v A.A. , 2015 ONCA 558 at para 131 , 327 CCC (3d) 377; R v Hemsworth , 2016 ONCA 85 at para 45 , 334 CCC (3d) 534; R v N.M. , 2019 NSCA 4 , 370 CCC (3d) 143). [ 46 ] In this case, I see nothing in the Trial Decision that suggests the trial judge placed excessive reliance on Mr.

Schroeder’s demeanour in assessing his evidence. While the trial judge described his careful observation of Mr. Schroeder as part of the assessment, his reasons also reveal that demeanour was only one consideration. The trial judge’s reasons, in particular paragraph 159 of the Trial Decision , demonstrate that he carefully examined the internal consistency of Mr. Schroeder’s testimony, the way in which he responded to cross-examination, and the nature of his description of the chronology of relevant events. [ 47 ] In my view, the trial judge’s reasons for accepting Mr.

Schroeder’s testimony as credible reveal neither legal error, nor reliance on inappropriate or irrelevant factors. His conclusions in that regard are also supported by the evidence. I see no basis for intervention. [ 48 ] Nor, with respect, am I able to conclude that the trial judge erred by failing to consider whether Mr. Schroeder’s evidence was reliable. [ 49 ] The trial judge’s assessment of Mr. Schroeder’s testimony must be evaluated in the relevant context. That is, in light of the evidence, the issues before him and the arguments made at trial.

In that respect, during closing submissions at trial, appellant’s counsel argued: … [M]y learned friend is suggesting that what Mr. Schroeder said -- testified to with respect to what Mr. Carlson allegedly said to him, that that is acceptable by Your Lordship under the state of mind exception as set out in Griffin (phonetic). I’m not disagreeing with certain hearsay evidence being admissible under that particular exception. However, Griffin also is quite clear that the -- the hearsay that is intended to be adduced at court, it must -- it’s in -- in and of itself be reliable.

And I would submit that, based upon Mr. Schroeder’s testimony, it’s clearly unreliable that Mr. Carlson ever said that to him. Mr. Schroeder’s -- the first time he ever came up with that very important, I would suggest, by his own testimony, extremely important bit of information was the first day of trial, last Monday, June 11th, 2018. Over ten years after he’d initially spoken to the police. He acknowledged that rumors spread like wildfire in Watrous. He worked at a tire shop. He spoke with lots of people. I would submit, My Lord, that the takeaway from Mr.

Schroeder, his evidence with respect to that comment that was allegedly said to him by Mr. Carlson is that it was never said to him. He brought that up. He added that. He embellished his evidence with that particular piece of information in order to assist, I’m -- I’m suggesting, in order to assist with the prosecution of Mr. Wolff. It’s unreliable and should not be admitted. If it is admitted, it should be given extremely little weight. [ 50 ] In this passage, counsel for the appellant was clearly asserting that Mr. Schroeder’s evidence was unreliable.

In my view, the trial judge’s reasons demonstrate that he took this argument into consideration in his assessment of Mr. Schroeder’s testimony, and turned his mind to the factors that the appellant alleged were indicative of unreliability. The trial judge acknowledged that he had to consider what probative value ought to be assigned to Mr. Schroeder’s evidence in light of those factors. He explained why he was not troubled by the fact that Mr. Schroeder had not mentioned the statement he attributed to Mr. Carlson about his fear of the appellant during his first interview with the police.

He explained that he accepted Mr. Schroeder’s account of having made the police aware of the conversation in question, and having discussed it with them in the intervening time period. He explained that, as a result, he was able to conclude that what Mr. Schroeder testified to was fact. [ 51 ] In the end, the trial judge dealt directly with the parts of Mr. Schroeder’s evidence that the appellant had argued were problematic from a reliability standpoint. Although he did not explicitly state that he found Mr.

Schroeder’s evidence to be reliable, the trial judge’s reasons make it clear that he considered both the veracity and the accuracy of Mr. Schroeder’s evidence when deciding what probative value could be assigned to it, and what factual findings could be made from it. Once again, in light of the applicable standard of review, I see no basis to interfere. 5. The principles applied to the evidence of Lindsay Reiber [ 52 ] As it relates to the trial judge’s assessment of the evidence of Ms. Reiber, the same deferential standard of review applies. At trial, the appellant’s counsel argued that Ms.

Reiber’s evidence was neither credible nor reliable. In that regard, he said: Turning to Ms. Lindsay Reiber and her testimony, my friend points out, I suggest, that this is direct evidence that you should consider in -- in -- in combination with the circumstantial evidence and that Mr. -- Ms. Reiber’s evidence is believable, reliable, and can be used to convict Mr. Wolff of the charge that is before you, with all due respect I could not disagree more. [ 53 ] He then pointed to various aspects of Ms.

Reiber’s evidence that he suggested should be seen as detracting from both credibility and reliability, including: (

i) the passage of time between the conversations about which she testified and the trial; (ii) her drug addiction, and drug use during the relevant time; (iii) her criminal record;

(iv) the inconsistencies between her original account of the relevant events and subsequent accounts; (

v) her exposure to rumors and gossip, and the impact they may have had on her recollection; and (vi) her motive for financial gain in implicating the appellant. [54] In the end, the appellant’s counsel summed up his position on Ms. Reiber’s evidence in this way: I submit, My Lord, you cannot accept what Ms. Reiber has testified to. Or if you do, it’s very little that you can accept. She’s a drugaddict, admitted to lying, motive by -- motivated by financial gain.

She’s admitted that she was possibly repeating rumors or speculation.And in addition to all of that, her story, the one that was allegedly told to her, is inconsistent with the evidence that is before you that wastaken from the house. Her evidence is completely unreliable. It should not be given any weight …. [55] The appellant also argued at trial that, in light of the list of factors mentioned above, the trial judge ought to give himself aVetrovec “unsavoury witness” self-caution in relation to Ms. Reiber’s testimony (see R v Vetrovec, (SCC), [1982] 1 SCR811 [Vetrovec]).

He repeated that argument during submissions on this appeal. [56] As I will explain, I also find no reviewable error in the trial judge’s assessment of the evidence of Ms. Reiber. [57] The purpose of a Vetrovec caution is to alert the trier of fact to when and why it is unsafe to find an accused guilty on theunsupported evidence of certain witnesses who, because of their amoral character, criminal lifestyle, past dishonesty, or interest in theoutcome of the trial, cannot be trusted to tell the truth: R v Khela, 2009 SCC 4 at para 3, [2009] 1 SCR 104.

Such caution to a jury (or self-caution in a judge alone trial) is not necessary every time a witness presents with some or all of those characteristics. In R v Smith, 2018SKCA 42, 363 CCC (3d) 559, Schwann J.A. provided a useful

summary of the governing law with respect to the application of Vetrovec: [35] In assessing when to give a warning, the Supreme Court of Canada in Vetrovec moved away from a rigid, categorical approach inrelation to Crown witnesses in favour of a more holistic approach based on the trial judge’s appreciation of the circumstances and factorsat play in the trial that might otherwise impair the credibility or trustworthiness of a particular witness. [36] To that end, trial judges must examine the circumstances of each case and the factors that might impair the worth of a witness’stestimony (Brooks at para 5; R v Carroll, 2014 ONCA 2 at para 65, 304 CCC (3d) 252 [Carroll]).

Where a witness’s evidence is centrallyimportant to the Crown’s case, yet may be suspect because of the disreputable and untrustworthy character of the witness, a “clear andsharp” warning may be appropriate to alert the jury to the risks of adopting the evidence without more (Brooks at para 3; Carroll at para62). [37] Broadly speaking, in assessing whether a Vetrovec warning should be given, the trial judge must give prominence to two factors:the credibility of the witness and the importance of the witness’s evidence to the Crown’s case. This point was summarized in Brooks: [80] In

summary, two main factors are relevant when deciding whether a Vetrovec warning is necessary: the witness’s credibility, andthe importance of the witness’s testimony to the Crown’s case. No specific threshold need be met on either factor before a warningbecomes necessary. Instead, where the witness is absolutely essential to the Crown’s case, more moderate credibility problems willwarrant a warning. Where the witness has overwhelming credibility problems, a warning may be necessary even if the Crown’s case is astrong one without the witness’s evidence.

In short, the factors should not be looked to independently of one another but in combination. [38] Trial judges must carefully assess the trustworthiness of Crown witnesses who seek to avoid prosecution or incarceration bytestifying for the Crown. That said, and as courts have clarified, this factor — on its own — does not mandate a Vetrovec warning (Brooksat para 12; Carroll at para 66).

Instead, trial judges must assess the credibility of the Crown witness — including the testimony ofaccomplices — in light of the circumstances of the case to determine whether the trustworthiness of that witness is impaired. … [42] Whether a Vetrovec warning should be given is a matter of discretion.

The trial judge is, after all, “an eyewitness to the testimonyof the witness and the temperature of the trial proceedings” (Carroll at para 60) and therefore best positioned in the ebb and flow of thetrial to assess and consider the “myriad factors that might impair the worth of a witness’ testimony” (Carroll at para 65; Vetrovec at 823;Brooks at para 5). ... [43] A discretionary decision warrants appellate intervention only “if the trial judge misdirects himself or if his decision is so clearlywrong as to amount to an injustice” (R v Regan, 2002 SCC 12 at para 117, [2002] 1 SCR 297; see also R v C.C.Y., 2001 SKCA 107, 213Sask R 120; Brooks at para 24; R v Richard (D.R.), 2013 MBCA 105 at para 85, 299 Man R (2d) 1; R v Peekeekoot, 2014 SKCA 97 atpara 93, 446 Sask R 22). [44] Finally, as noted in Bevan, the exercise of a trial judge’s discretion is subject to considerable appellate deference with particularregard to the unique and dynamic circumstances of the trial setting (Brooks at para 24; Bevan at 614; Carroll at para 67).

An appellatecourt should not interfere with a trial judge’s decision on the Vetrovec warning if there is a foundation for the trial judge’s exercise ofdiscretion and must refrain from imposing its after-the-fact view based on an “abstract category of witness without having heard thetestimonies directly” (Brooks at paras 4 and 10). [58] In this case, there were aspects of Ms. Reiber’s character, background and testimony that mandated careful scrutiny of herevidence, and the trial judge did not specifically self-instruct along the lines of Vetrovec.

That said, however, the Trial Decision clearlydemonstrates that the trial judge was alive to the issues that might have affected the trustworthiness of Ms. Reiber’s evidence. In thatregard, he wrote: [161] When Lindsay Reiber testified, the trials and tribulations of the life that she has led were fully exposed. Her somewhat lengthycriminal record, her drug addictions and drug use have unfortunately played a role in her life and where she today finds herself at. Thedefence suggests that all of these factors combined, along with a potential financial inducement, coloured her evidence to such a degree

that it ought not to be given virtually any weight. [162] The defence’s concerns extended to such an extent that Mr. Mitchell postulated that an untrustworthy witness approach should be brought to assessing the evidence of Lindsay Reiber. In this instance, Lindsay Reiber has admitted to a series of criminal convictions and in essence the defence suggests that she has an unsavoury reputation, as that phrase is understood in criminal jurisprudence, and further that she in essence agreed to provide testimony in exchange for a sum of money which I have chronicled earlier.

In addition to these factors, the defence suggests that Lindsay Reiber’s evidence may in fact have come from a collection of rumours which she would have heard over the years, and finally that her memory as a result of the drug addiction might well be faulty to the point of being wholly unreliable. [163] I listened very carefully to the evidence of Lindsay Reiber, and I observed her throughout her testimony, both examination-in-chief and cross-examination, and I have come to some conclusions. [164] The first is this, simply because Lindsay Reiber has experienced what I have called the trials and tribulations of her life does not in and of itself mean that she is not capable of being a credible or believable witness.

Such an assessment must only be made after a careful consideration of both her evidence and her demeanour in court in giving that evidence. [165] The second and most important conclusion that I have reached regarding the evidence of Lindsay Reiber is that I find her to be a credible witness. There are many instances of her evidence being corroborated by other evidence. As I have indicated, her evidence is direct evidence. If accepted, it amounts to a clear admission or confession by Taylor Wolff as to his murder of James Carlson. [ 59 ] The trial judge went on to explain why he found Ms. Reiber to be credible.

He noted the absence of any plausible rationale for Ms. Reiber to provide non-truthful testimony. He observed that she withstood a skilful cross-examination without fundamental changes to her evidence. He also observed that she was willing to acknowledge when she could not unequivocally ascribe certain incriminating comments to the appellant. The trial judge also accepted Ms. Reiber’s explanation for the variations in her story, and for why she left out certain details when she first spoke to the police. [ 60 ] The trial judge further noted the evidence that corroborated Ms. Reiber’s testimony.

In particular, he cited the testimony of Ms. Hards and Mr. Quessy, the fact that the appellant’s DNA was found on a bottle of cleaning solution in Mr. Carlson’s residence, and the fact that a sword was also found in that residence. In the end, the trial judge concluded that Ms. Reiber’s testimony should be believed. In that regard, he wrote: [169] As noted, I find Lindsay Reiber to be a credible witness. I am satisfied that Taylor Wolff spoke the comments to Lindsay Reiber that she ascribed to him.

Her evidence is capable of standing on its own in my view, but as I have indicated, there is other evidence, circumstantial evidence, which serves to corroborate her testimony. [170] The testimony of April Hards is circumstantial evidence, but it supports and corroborates the testimony of Lindsay Reiber. After James Carlson went missing, why would Taylor Wolff in their phone call when she said “I have to tell him that day in my living room when you said you were going to take care of Rat. Like you told me that,” have repeatedly asserted that “I didn’t say that. You can’t say that”?

The only reasonable inference flowing from this is that he had something to hide. [171] The evidence of Trevor Quessy relating to the vehicle corroborates the evidence of Lindsay Reiber. In addition, the limited DNA evidence concluding that the accused’s DNA was found on the Prosolve bottle at the Carlson residence serves to corroborate Lindsay Reiber’s evidence. … [173] In this instance, I find that the most significant evidence at trial is the confession or admission made by Taylor Wolff to Lindsay Reiber. As indicated, I accept her testimony in that regard, and I find it to be credible.

I am satisfied beyond a reasonable doubt that Taylor Wolff made these comments to Lindsay Reiber as she testified to. It is noteworthy that Lindsay Reiber had never been to James Carlson’s residence, but what appears to be a Samurai sword found on the floor of the residence as displayed in the relevant photographs in a small way corroborates her evidence.

I am of the view and find as a fact that the knowledge of the existence of the sword at the residence came to her as a result of the statements made to her by the accused. [ 61 ] Accordingly, even though the trial judge did not specifically refer to Vetrovec , his reasons demonstrate that he did not simply rely on Ms. Reiber’s unsupported testimony in finding the appellant guilty. The reasons make clear that the trial judge turned his mind to consideration of the factors which may have made Ms. Reiber’s testimony untrustworthy, and also whether any aspects of her evidence were corroborated.

In short, even in the absence of an explicit self-instruction, the trial judge’s reasons demonstrate that he subjected Ms. Reiber’s evidence to careful scrutiny, and took into account the proper considerations in deciding whether to rely on her testimony. I find no error in the way the trial judge approached the Vetrovec issue. [ 62 ] Furthermore, the trial judge’s conclusions with respect to Ms. Reiber’s credibility are reasonable and supported by the evidence.

Given the applicable standard of review, I see no error allowing for intervention. [ 63 ] I come to the same conclusion with respect to the appellant’s argument that the trial judge failed to consider the reliability of Ms. Reiber’s evidence. Although credibility and reliability are distinct concepts, they do not exist in independent silos and need not be specifically referred to by name in a trial judge’s reasons in order to withstand appellate review.

The important thing is that a trial judge considers both aspects when assessing a witness’s evidence and making factual findings, and that the reasons for judgment demonstrate that both aspects were considered. [ 64 ] In this case, the trial judge’s reasons demonstrate that he understood and carefully considered the appellant’s argument that Ms. Reiber’s evidence was unreliable. He addressed this argument by weighing and considering Ms. Reiber’s testimony, as well as the evidence as a whole.

He explained why he found that certain evidence – especially DNA evidence and physical evidence found at the crime scene – supported Ms. Reiber’s testimony and why, in light of that, he could accept Ms. Reiber’s evidence as fact. This demonstrates that the trial judge was concerned not only with the truthfulness of Ms. Reiber’s testimony, but also its accuracy. In short, even though the

trial judge did not use the word “reliability”, his reasons demonstrate that he considered the reliability of Ms. Reiber’s testimony, along with her credibility. [ 65 ] In the result, I would dismiss these grounds of appeal. B. The alleged errors in the trial judge’s assessment of circumstantial evidence [ 66 ] The appellant argues the trial judge committed a legal error by failing to correctly apply the test set out in R v Villaroman , 2016 SCC 33 , [2016] 1 SCR 1000 [ Villaroman ], regarding the assessment of circumstantial evidence.

In particular, he asserts that the trial judge failed to properly consider whether other reasonable possibilities raised by the circumstantial evidence were inconsistent with the appellant’s guilt. He argues that the trial judge erred by failing to require the Crown to disprove such other “reasonable possibilities” beyond a reasonable doubt. [ 67 ] In particular, the appellant argues that the trial judge failed to properly consider the following evidence: (

a) the appellant’s fingerprints were not found on any of the items or surfaces from Mr. Carlson’s residence that were examined by the police; (

b) the appellant’s fingerprints and DNA were not found in Mr. Carlson’s vehicles; (

c) although the appellant’s DNA was found on the bottle of cleaning solution found in Mr. Carlson’s residence, there was no other evidence that this cleaning solution was used to clean up Mr. Carlson’s blood; (

d) the appellant’s DNA was not found on either of the expended bullets located in Mr. Carlson’s residence; (

e) fingerprints from other, unidentified individuals were found in Mr. Carlson’s residence; (

f) apart from the bottle of cleaning solution and two cigarette butts, the appellant’s DNA was not located anywhere else in Mr. Carlson’s residence; (

g) the footwear impressions located in Mr. Carlson’s residence could not be identified as having been made by the appellant; (

h) clean-up of the blood in Mr. Carlson’s residence appeared to have been done using a mop. DNA profiles from two individuals were found on a mop located inside Mr. Carlson’s residence, and neither profile could be identified to the appellant; (

i) neighbours who testified that they were present on the night that the fateful events occurred did not hear any gunshots, or anything else out of the ordinary; (

j) although Ms. Hards testified that the appellant told her he was going to “take care of” Mr. Carlson, he also told her that he “didn’t do it”; and (

k) there was evidence that Mr. Carlson was involved in the drug world, and that there were people with whom he was on bad terms. [ 68 ] The appellant contends that the effect of this evidence is that a reasonable inference could be drawn that someone other than the appellant was responsible for Mr. Carlson’s death. [ 69 ] The appellant also argues that the trial judge improperly filled in evidentiary gaps and drew inferences that were not supported by the evidence. For instance, he asserts that the trial judge improperly concluded that the fact a sword was found in Mr. Carlson’s residence supported Ms.

Reiber’s testimony that the appellant had told her that Mr. Carlson came at him with a sword before he shot Mr. Carlson. The trial judge found this was an important detail which permitted him to rely on Ms. Reiber’s testimony, because she would not have had any other means of knowing about the presence of the sword. The appellant contends that, in drawing this conclusion, the trial judge improperly disregarded other reasonable explanations that may account for Ms.

Reiber’s knowledge of this detail, including the fact that other people may have seen the sword in the residence and caused that information to make its way into the rumour mill. [ 70 ] The appellant argues that, because much of the circumstantial evidence did not appear to implicate him, the trial judge could not properly have concluded that the appellant’s guilt was the only reasonable inference that could be drawn from the totality of the evidence.

At its core, this is an argument that the trial judge’s decision was unreasonable. [ 71 ] The Crown, in response, says the appellant’s argument is flawed by his failure to appreciate that the criminal standard of proof applies only to the ultimate issue of guilt, and not to individual pieces of evidence or preliminary factual findings on the pathway to a verdict.

The Crown submits that the appellant is simply inviting this Court to reweigh the evidence and points out that the trial judge thoroughly considered the evidence and the arguments at trial and, as such, the factual inferences the trial judge drew are entitled to deference. 1.

The applicable law [ 72 ] It has long been an established principle of Canadian law that, where proof of one or more of the elements of an offence depends exclusively or largely on circumstantial evidence, the accused may not properly be convicted unless the trier of fact is satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference that may be drawn from the totality of the evidence: Villaroman at para 30 ; R v Farnham , 2016 SKCA 111 at paras 35–39 , [2016] 12 WWR 635 [ Farnham ]. [ 73 ] The Supreme Court also made it clear in Villaroman that the role of the Court in appellate review of a conviction based on

circumstantial evidence is not to retry the case.

The focus of the appellate court must be on whether the inferences drawn by the trialjudge, having regard to the standard of proof, were reasonably open to him or her. [74] In R v Learning, 2019 SKCA 5, Caldwell J.A. summarized the legal principles set out in Villaroman regarding circumstantialevidence, and the standard of appellate review of convictions based on circumstantial evidence, as follows: [23] …[W]hile an appellate court may re-examine and to some extent reweigh and consider the effect of the evidence when assessingwhether a verdict is unreasonable, it is not for the appellate court to pick apart the findings and inferences drawn by the trial judge (see: Rv Villaroman at para 69).

Rather, this Court must determine whether it was unreasonable for the trial judge to have concluded that theevidence as a whole excluded all reasonable alternatives to guilt (see also: R v Youssef, 2018 SCC 49). As the Court in R v Villaromanexplained: [55] A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered: R. v. Biniaris,2000 SCC 15, [2000] 1 S.C.R. 381. Applying this standard requires the appellate court to re-examine and to some extent reweigh andconsider the effect of the evidence: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, at p. 186.

This limited weighing of theevidence on appeal must be done in light of the standard of proof in a criminal case. Where the Crown’s case depends on circumstantialevidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was theonly reasonable conclusion available on the totality of the evidence: Yebes, at p. 186; R. v. Mars (2006), (ON CA), 205C.C.C. (3d) 376 (Ont. C.A.), at para. 4; R. v. Liu (1989), 1989 ABCA 95 , 95 A.R. 201 (C.A.), at para. 13; R. v. S.L.R., 2003ABCA 148; R. v. Cardinal (1990), 1990 ABCA 115 , 106 A.R. 91 (C.A.); R. v.

Kaysaywaysemat (1992), (SKCA), 97 Sask. R. 66 (C.A.), at paras. 28 and 31. [56] The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine, [2014 ABCA 328, 316 CCC (3d)357] at para. 22. The court noted that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences” and that averdict is not unreasonable simply because “the alternatives do not raise a doubt” in the jury’s mind.

Most importantly, “[i]t is stillfundamentally for the trier [of] fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.” [24] Importantly, the Court in R v Villaroman had earlier commented on the reasoning process in cases of circumstantial evidence,noting: (a) “The inferences that may be drawn from [an] observation must be considered in light of all of the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense” (at para 30). (b) “In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” (at para 35). (c) “The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there arereasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt” (at para 35). (d) “[A] reasonable doubt, or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence.As stated by this Court in Lifchus, a reasonable doubt ‘is a doubt based on reason and common sense which must be logically based uponthe evidence or lack of evidence’: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt.

Butthose inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experienceand common sense” (at para 36). (e) “When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theor[ies]’ and ‘other reasonablepossibilities’ which are inconsistent with guilt” (at para 37). (f) “[T]he Crown thus may need to negative these reasonable possibilities, but certainly does not need to ‘negative every possibleconjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’. ...’[O]ther plausibletheories’ or ‘other reasonable possibilities’ must be based on logic and experience applied to the evidence or the absence of evidence, noton speculation” (at para 37; emphasis in original).

Drawing on all of this, the Court said (at para 38) that the “basic question” in such cases is “whether the circumstantial evidence, viewedlogically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.” [25] On this basis, the question for an appeal court in a case of circumstantial evidence is not whether there were other possibleexplanations for what happened.

The question is whether the trial judge unreasonably concluded that the evidence, when taken as a wholeand when applying common sense, human experience and logic to determine the probability of outcomes, leads to only one reasonableconclusion, namely, that the accused committed the crime.

To paraphrase the Court in R v Villaroman (at para 69), while not every trier offact may inevitably have reached the same conclusion as the trial judge did in this case, her conclusion need only be a reasonable one. [26] Coming at this question from another angle, the Court in R v Dipnarine (at paras 24–25) said the presence of competinginferences does not necessarily mean a finding of guilt is an unreasonable verdict.

Rather, if the trier of fact considers an alternativeinterpretation of the circumstances, taken as a whole, to be unreasonable or irrational, the trier of fact is not bound to give effect to thatalternative simply because it is impossible to exclude it entirely. In concluding its analysis, the Court said: “The law does not require suchproof to absolute certainty: see R v Lifchus, (SCC), [1997] 3 SCR 320 at para 30.” [75] As the jurisprudence makes clear, circumstantial evidence need not totally exclude all other conceivable inferences in order toground a finding of guilt.

While the trier of fact is required to consider other plausible theories, it should not act on alternativeinterpretations of the circumstances that it considers to be unreasonable. Alternative inferences must be reasonable, not merely possible:Villaroman at para 42; R v Dipnarine, 2014 ABCA 328 at paras 22–25, 316 CCC (3d) 357. [76] It is also important to note that the beyond a reasonable doubt standard of proof does not apply to each individual piece ofcircumstantial evidence.

In order for a trier of fact to convict on the basis of circumstantial evidence, it is not necessary that each item ofevidence, individually, support only an inference of guilt. The determination of whether the guilt of the accused is the only reasonable

inference that may be drawn must be made on an examination of the evidence as a whole. It is an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt: J.M.H. at para 31 ; R v Ballantyne , 2015 SKCA 107 at para 42 , 329 CCC (3d) 127; R v Alves , 2014 SKCA 82 at para 43 , [2014] 12 WWR 63. [ 77 ] The standard of review of a trial judge’s findings of fact, including the drawing of factual inferences, within the context of review of evidence for an unreasonable verdict analysis is one of palpable and overriding error: Farnham at para 45 .

The test for unreasonable verdict is not a piecemeal evaluation; it demands an assessment of the cumulative effect of all the evidence: R v Montague- Mitchell , 2018 SKCA 78 at para 60 , 368 CCC (3d) 322.

Whether a verdict is unreasonable depends on an evaluation of the evidence as a whole and not on individual findings of fact: Farnham at para 45 . [ 78 ] When examining a trial judge’s findings of fact in the context of an appeal, it is important to bear in mind that a verdict will not be rendered unreasonable just because different inferences might have been drawn from the evidence than those which the trial judge drew. Appellate scrutiny determines whether the inferences drawn by a trial judge are reasonably supported by the evidence.

If they are, the reviewing court cannot reweigh the evidence by substituting, for the reasonable inference preferred by the trial judge, an equally – or even more persuasive – inference of its own: H.L. v Canada (Attorney General) , 2005 SCC 25 at para 74 , [2005] 1 SCR 401. [ 79 ] It is fundamentally for the trier of fact to draw the line that separates reasonable doubt from speculation where circumstantial evidence is concerned: Villaroman at para 71 .

An appellate court can interfere only if the trial judge’s conclusion that the evidence excluded any reasonable alternative to guilt is itself unreasonable: R v Youssef , 2018 ONCA 16 at para 4 , 428 DLR (4th) 612, affirmed 2018 SCC 49 , [2018] 3 SCR 259. 2. Analysis [ 80 ] The trial judge began his reasons, at paragraphs 14–19, by correctly instructing himself regarding: (

i) the burden of proof (namely that the Crown must prove all elements of the offence beyond a reasonable doubt); (ii) the need to consider all the evidence in determining whether the Crown had proved its case beyond a reasonable doubt; (iii) the nature of reasonable doubt; and (iv) that the requirement for proof beyond a reasonable doubt applies to the evidence as a whole, and not to individual items of evidence. [ 81 ] The trial judge then turned to his self-instruction regarding circumstantial evidence.

At paragraph 22 he said: However, before basing a verdict of guilty on circumstantial evidence, I must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference that can be drawn from the whole of the evidence. [ 82 ] The trial judge then conducted a detailed review of the evidence at paragraphs 23–94. He thoroughly catalogued the forensic evidence, as well as the evidence given by the Crown’s civilian witnesses. He recounted all the salient portions of the testimony.

He then outlined and considered the arguments advanced by the Crown and the defence, noting in particular the appellant’s arguments regarding the gaps in the circumstantial evidence and why the appellant contended that guilt was not the only reasonable inference to be drawn. [ 83 ] The trial judge then proceeded to analyse the evidence in light of those arguments. He began with the forensic evidence, concluding that: [129] … I am satisfied that all four of these witnesses provided objective, detailed evidence as to their involvement in the investigation. Accordingly, I accept their evidence without any exception.

Collectively I am satisfied that the forensic evidence demonstrates beyond a reasonable doubt that James Carlson met his death in his residence at Watrous, Saskatchewan on or about May 14, 2008. I further am satisfied that the forensic evidence proves beyond a reasonable doubt that James Carlson died at the hands of an assailant or assailants at that time and place and that his death was the result of a violent assault upon him. [ 84 ] He then went on to explain, over the next several paragraphs, with specific reference to portions of the forensic evidence, how he had reached that conclusion.

In particular, the trial judge considered the “alternate factual matrix” put forward by the appellant, namely that the bullet fragments found in Mr. Carlson’s residence did not actually strike Mr. Carlson. This argument was based on the evidence that no blood or DNA was found on the bullet fragments. In that respect, the trial judge noted, at paragraph 130, that “great care must be brought to bear in drawing any probative inference from circumstantial evidence.” [ 85 ] In addition to considering the evidence regarding the existence, number and location of the bullet fragments found in Mr.

Carlson’s residence, the trial judge also considered the DNA evidence, the bloodstain pattern evidence, the evidence which suggested that efforts had been made to clean up the blood at Mr. Carlson’s residence, and the evidence regarding the nature and timing of Mr. Carlson’s disappearance.

He concluded this portion of the Trial Decision by saying: [138] This forensic evidence along with the stark reality that no trace of James Carlson has ever been found since May 14, 2008 is what leads me to the view that I had earlier expressed that “There can in my view be no doubt that James Carlson is deceased and that his death resulted from a fatal assault.” Specifically considering the definition of homicide and murder, it is clear to me that some assailant caused the death of James Carlson on or about May 14, 2008 at or near Watrous in the Province of Saskatchewan.

Further, under the circumstances of his death, I am of the view that James Carlson’s assailant caused his death by means of an unlawful act, and I so find. [ 86 ] The trial judge then turned to consider the evidence relating to the identity of Mr. Carlson’s killer. He reviewed, in detail, the salient portions of the evidence of each of the civilian witnesses called by the Crown. This included the testimony of Ms. Hards, who said the appellant – during a conversation about the prospect of Mr.

Carlson (whose nickname was “Rat”) testifying against the appellant in relation to the drug charges – said: “Don’t worry, I will take care of Rat. Don’t worry about me going to jail”. [ 87 ] The trial judge’s consideration also included the testimony of Mr. Quessy, who said that in mid-May of 2008, he had seen the appellant driving a car that was similar to the one owned by Mr. Carlson. Mr. Quessy testified that when he asked the appellant how he obtained that car, the appellant said: “We’ll just say someone screwed up”. The trial judge also considered Mr. Schroeder’s testimony about Mr.

Carlson telling him to point the police in the direction of the appellant if something untoward should ever happen. There was also the evidence of Ms. Reiber, who said that the appellant admitted to shooting Mr. Carlson and disposing of his body.

[ 88 ] The trial judge also carefully analyzed the evidence that was not particularly helpful to the Crown’s case, including the absent or innocuous DNA evidence, and the evidence that none of Mr. Carlson’s neighbours heard gunshots, or anything else of concern at the relevant time. In the end, the trial judge determined that the whole of the evidence proved that it was the appellant who unlawfully caused Mr. Carlson’s death by shooting him, and that he did so with the intent necessary for murder. In that respect, he said: [169] As noted, I find Lindsay Reiber to be a credible witness.

I am satisfied that Taylor Wolff spoke the comments to Lindsay Reiber that she ascribed to him. Her evidence is capable of standing on its own in my view, but as I have indicated, there is other evidence, circumstantial evidence, which serves to corroborate her testimony. [170] The testimony of April Hards is circumstantial evidence, but it supports and corroborates the testimony of Lindsay Reiber. After James Carlson went missing, why would Taylor Wolff in their phone call when she said “I have to tell him that day in my living room when you said you were going to take care of Rat.

Like you told me that,” have repeatedly asserted that “I didn’t say that. You can’t say that”? The only reasonable inference flowing from this is that he had something to hide. [171] The evidence of Trevor Quessy relating to the vehicle corroborates the evidence of Lindsay Reiber. In addition, the limited DNA evidence concluding that the accused’s DNA was found on the Prosolve bottle at the Carlson residence serves to corroborate Lindsay Reiber’s evidence. [172] I do not rely in any way on Taylor Wolff’s DNA being found on two cigarette butts during the investigation.

His culpability is not the only reasonable inference to be drawn from the established facts. [173] In this instance, I find that the most significant evidence at trial is the confession or admission made by Taylor Wolff to Lindsay Reiber. As indicated, I accept her testimony in that regard, and I find it to be credible. I am satisfied beyond a reasonable doubt that Taylor Wolff made these comments to Lindsay Reiber as she testified to.

It is noteworthy that Lindsay Reiber had never been to James Carlson’s residence, but what appears to be a Samurai sword found on the floor of the residence as displayed in the relevant photographs in a small way corroborates her evidence.

I am of the view and find as a fact that the knowledge of the existence of the sword at the residence came to her as a result of the statements made to her by the accused. … [175] I have concluded that the Crown has proven beyond a reasonable doubt that Taylor Wolff in fact caused James Carlson’s death in the manner set forth in the evidence of Lindsay Reiber. [176] I accept and find as a fact that Taylor Wolff made the statement that he had gone to James Carlson’s residence to confront him and that he had shot him and there was a lot of blood.

This in my respectful view proves beyond a reasonable doubt that Taylor Wolff caused James Carlson’s death unlawfully. [177] In considering the implications of Taylor Wolff’s attendance at James Carlson’s residence, I agree with the Crown that the only reasonable conclusion is that Taylor Wolff caused the death of James Carlson and that when he did so he meant to cause James Carlson’s death.

To that end he took a weapon with him for the purposes of confronting Carlson, and according to Lindsay Reiber, so used it. [178] Blair Schroeder’s evidence provides evidence of motive on the part of Taylor Wolff to harm James Carlson.

It goes to the end of negating the proposition that someone else may have caused James Carlson’s death. [179] At the time of James Carlson’s death the relationship between Taylor Wolff and James Carlson was strained. [180] The opening paragraph of the Agreed Statement of Fact reads as follows: On October 19, 2007, Taylor Wolff was arrested by Saskatoon Police Service when he was found in possession of a small amount of drugs and cash. The Saskatoon Police Service investigation revealed that the drugs in Taylor Wolff’s possession were intended to be sold to James Carlson.

James Carlson was also arrested that date by Saskatoon Police Service and he provided a statement implicating Taylor Wolff for trafficking. As a result of James Carlson’s statement, Taylor Wolff was charged with possession for the purpose of trafficking and a preliminary hearing was scheduled to take place on June 9, 2008.

A subpoena had been served on James Carlson requiring him to testify at the preliminary hearing. [181] It was less than a month before the scheduled preliminary hearing date of June 9, 2008 that James Carlson disappeared. [182] I am satisfied that on all of the evidence the Crown has proven that there existed a motive for Taylor Wolff to harm James Carlson. [183] The act of using a firearm, an unlawful act that ultimately I find resulted in the death of James Carlson, directly goes to meeting the definition of culpable homicide, that being that where a person causes the death of a human being he means to cause his death or means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not. [184] The only reasonable conclusion to be reached in this matter is that Taylor Wolff meant to cause James Carlson’s death when he attended at his residence and shot him. [185] Accordingly, I find that the Crown has proven beyond a reasonable doubt that Taylor Wolff caused James Carlson’s death, that he caused James Carlson’s death unlawfully and that he had the state of mind required for murder, that being the intention to cause death. [ 89 ] I can find no error in the trial judge’s approach to the circumstantial evidence that requires intervention.

His reasons make it clear that he fully considered not only the inculpatory portions of the evidence, but the exculpatory portions as well. He considered other possible explanations, such as the theory that Mr. Carlson was not actually shot in his residence, and the theory that if Mr. Carlson actually died from a gunshot, somebody else was responsible. In reaching the conclusions that he did, the trial judge clearly rejected these theories.

[ 90 ] In my view, the trial judge’s reasons demonstrate that he remained squarely focused on the Crown’s duty to prove the case beyond a reasonable doubt, and on the requirement that guilt be the only reasonable inference to be drawn from the circumstantial evidence. [ 91 ] The conclusion reached by the trial judge in that regard is one, in my view, that he could reasonably have reached on the evidence before him. While there were other inferences that might have been drawn from the evidence as a whole, it was for the trial judge to say whether those other inferences were reasonable.

He concluded that they were not. Such a conclusion is reasonable, in my view, based on the evidence as a whole. Applying the standard of review set out in Villaroman , it is not for this Court to interfere. C. The alleged errors with respect to the trial judge’s finding that the requisite intent was proven [ 92 ] The appellant argues that, having found that the appellant unlawfully caused Mr. Carlson’s death, the trial judge erred by concluding the Crown had proven beyond a reasonable doubt that he did so with the intent necessary to commit murder.

He asserts that, at most, the evidence supports a conviction for manslaughter. [ 93 ] The Crown says the trial judge properly instructed himself concerning the requisite intent and drew a factual inference regarding the appellant’s intent that is supported by the evidence. [ 94 ] At paragraphs 12–13 of the Trial Decision , the trial judge outlined the elements the Crown was required to prove in order to establish the appellant’s guilt on the charge of murder, including the requisite state of mind. He referred to that statement of the law later in the Trial Decision during his analysis of the evidence.

The trial judge’s self-instruction in that respect was without error, and the appellant properly takes no issue with it. [ 95 ] Analysing the question of intent, the trial judge determined the only reasonable conclusion he could reach, after considering all of the evidence, was that the appellant “meant to cause James Carlson’s death when he attended at his residence and shot him” (at para 184). [ 96 ] The appellant argues that the trial judge erred in drawing that inference. He asserts that the trial judge, in coming to that conclusion, accepted the testimony of Ms.

Reiber, part of which was that the appellant had said he attended to Mr. Carlson’s residence only to confront him, and took the gun along only for the purpose of intimidation. In the face of that, says the appellant, the conclusion that he intended to cause Mr. Carlson’s death was unreasonable and contrary to the evidence. [ 97 ] I cannot accede to this argument. [ 98 ] To begin, the question of whether a particular intent or state of mind has been proven is a question of fact, and thus subject to a deferential standard of review.

The appellant’s submission on this ground of appeal is, once again, really an argument that the verdict was unreasonable. [ 99 ] A verdict is unreasonable if it is one that a properly instructed trier of fact, acting judicially, could not reasonably have rendered: R v Biniaris , 2000 SCC 15 at para 36 , [2000] 1 SCR 381.

A verdict may also be unreasonable and, thus, justify appellate intervention where a trial judge has drawn an inference or made a finding of fact essential to the verdict that is plainly contradicted by the evidence the trial judge relies on in support of that inference or finding: R.P. at para 9 . The verdict should only be overturned where the appellate court, having considered all of the evidence at trial, determines that the evidence as a whole cannot reasonably support a conviction: Burke . [ 100 ] In this case, there was no direct evidence of the appellant’s intent at the time he shot Mr. Carlson.

It appears that the trial judge drew what is often referred to as the “common sense” inference with respect to the appellant’s intent, namely that a sane and sober person intends the natural and foreseeable consequences of his actions. In particular, at paragraphs 183–185 of the Trial Decision , which are reproduced earlier in these reasons, the trial judge determined the only reasonable conclusion he could reach from the fact that the appellant shot Mr. Carlson with a firearm was that he meant to cause Mr.

Carlson’s death . [ 101 ] A trier of fact is entitled, but not required, to rely on the common sense inference to determine whether intent has been proven. Where one person shoots another person with a firearm, it is clearly a foreseeable consequence, for a sane and sober person, that the person who gets shot may die.

In such circumstances, if there is no evidence that could realistically impact on whether the accused had the requisite mental state at the time of the shooting, or if the pertinent evidence does not leave the trier of fact in a state of reasonable doubt about the accused’s intent, then the trier of fact may properly resort to the common sense inference in deciding whether intent has been proven: R v Walle , 2012 SCC 41 at para 67 , [2012] 2 SCR 438 . [ 102 ] In this case, it is hard to imagine how the evidence to which the appellant refers could realistically impact on the question of whether he had the requisite intent at the time he shot Mr.

Carlson. At most, it was evidence that suggested the shooting of Mr. Carlson was not planned and deliberate on the appellant’s part; it says nothing about his intent at the time the fatal shot or shots were fired. In any event, such evidence was clearly not sufficient to raise a reasonable doubt in the trial judge’s mind about whether the common sense inference ought to apply. I see no error in the trial judge’s approach in that respect. The inference the trial judge drew regarding the appellant’s intent was reasonable and supported by the evidence.

It is entitled to deference. [ 103 ] Accordingly, this ground of appeal must be dismissed. D. The alleged error with respect to the defence of provocation [ 104 ] The appellant raised the defence of provocation at trial. He argued that if the trial judge was satisfied the Crown had proven that the appellant caused Mr. Carlson’s death with the state of mind necessary for murder, the defence of provocation should apply to reduce

the conviction to manslaughter. He contended that the evidentiary basis supporting such a defence was found in the testimony of Ms.Reiber. [105] In that regard, Ms. Reiber testified to the following, in relation to a conversation she had with the appellant: … I asked what had happened, and he said he … had gone to James’s house to confront him, and that James had come at him with a swordor a -- a large blade, and that he had shot him and there was a lot of blood. [106] Later, under cross-examination, Ms. Reiber also confirmed the testimony she had given at the preliminary inquiry was true.

Atthat time, she said the appellant had told her: … that James had come at him with a sword and Taylor had -- he had taken a gun with him for some intimidation. And then when Jamescame with him -- came at him with a sword, Taylor shot him …. [107] The trial judge considered the defence of provocation and rejected it. He began his discussion of this issue by saying: [189] A consideration of the potential applicability of s. 232 amounts to consideration of a defence. If the criteria referenced in s. 232 arefound as factually established, the

section provides a defence to a charge of second degree murder. Consequentially, as it is a defence,there is no onus on the defence to prove the defence, rather it falls to the Crown where there is a basis on which to consider the potentialdefence to prove beyond a reasonable doubt that the defence does not apply. [190] Provocation only becomes a potential issue once the Crown has proven beyond a reasonable doubt that an accused has committedmurder.

In accepting Lindsay Reiber’s evidence that Taylor Wolff told her that he had gone to the residence to confront James Carlson andshot him, he also told her that James came at him with a sword or a large blade, and I find that he had told Lindsay Reiber that. [108] The trial judge reviewed and considered the evidence, in particular that of Cpl. Candace Ochitwa, a police forensicidentification officer who processed and documented the evidence found in Mr. Carlson’s house. Corporal Ochitwa observed andphotographed what appeared to be a sword in Mr. Carlson’s house, laying on the floor, along a wall.

The sword was in a sheath when Cpl.Ochitwa examined the scene; its blade was not exposed. The trial judge accepted this evidence and went on to say: [193] Simple logic suggests to me that unless the blade of the sword was removed from its sheath or case, it would be a most ineffectiveweapon, unless possibly used not as a blade but as a club. [194] In attending at the residence to confront James Carlson, the accused was clearly the aggressor, and he possessed a firearm. It wouldnot be surprising if James Carlson realized that he was in imminent danger from Taylor Wolff and sought any possible way to defendhimself.

To the extent that he may have tried to use the sword in some fashion I do not believe it could be said that any potential action byJames Carlson amounted to sudden provocation such that the accused committed the act in the heat of passion. [195] Accordingly I find that the Crown has proven that this defence does not apply. [196] In this instance, I have concluded that where the accused took a firearm to the Carlson residence against the backdrop of theirdeteriorating relationship, even for the purpose of confronting him, that any actions taken by James Carlson upon the appearance of theaccused at his residence could not in any reasonable way be said to be provocation as the

section requires. … [109] The appellant argues that the trial judge, having accepted Ms. Reiber’s evidence about what the appellant had told her, erred inconcluding that the appellant, rather than Mr. Carlson, was the aggressor in the confrontation. He submits that the evidence before the trialjudge was silent on how, when or why Mr. Carlson brandished the sword, and that it supports the inference that Mr. Carlson suddenlyattacked the appellant. As such, he contends the trial judge erred by finding that the Crown had disproved the defence of provocation. [110] I also reject this ground of appeal. [111] Provocation is a partial defence, which serves to reduce culpa

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