R. v. Shaoulle (J.T.), (2015) 467 Sask.R. 86 (CA)

• Judge: Jackson, Klebuc and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: October 24, 2014
• Jurisdiction: Saskatchewan
• Citations: (2015), 467 Sask.R. 86 (CA);2015 SKCA 101

R. v. Shaoulle (J.T.) (2015), 467 Sask.R. 86 (CA);

    651 W.A.C. 86

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. OC.011

John Thomas Shaoulle (appellant) v. Her Majesty the Queen (respondent)

(CACR2384; 2015 SKCA 101)

Indexed As: R. v. Shaoulle (J.T.)

Saskatchewan Court of Appeal

Jackson, Klebuc and Ottenbreit, JJ.A.

September 30, 2015.

Summary:

After a trial by judge alone, the accused was convicted of first degree murder. The Crown's case was comprised entirely of circumstantial evidence. The accused appealed. His sole ground of appeal was that the verdict was unreasonable or could not be supported by the evidence.

The Saskatchewan Court of Appeal, Klebuc, J.A., dissenting, dismissed the appeal.

Criminal Law - Topic 57

Protection against self-incrimination - Unfavourable inference from accused's failure to testify or call evidence - [See fifth Criminal Law - Topic 4865 ].

Criminal Law - Topic 4358

Procedure - Charge or directions - Jury or judge alone - Directions regarding circumstantial evidence - [See first and fourth Criminal Law - Topic 4865 ].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - [See first Criminal Law - Topic 4865 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - In the early morning hours, Sewap's naked and partially burned body was found under brush and snow in a commercial area in Prince Albert - She had been brutally sexually assaulted before being manually strangled to death - Shaoulle was convicted of Sewap's first degree murder, after a trial by judge alone - The Crown's case was comprised entirely of circumstantial evidence - Shaoulle appealed on the sole ground that the verdict was unreasonable or could not be supported by the evidence - The Saskatchewan Court of Appeal dismissed the appeal - "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. ... Finally, he also argues that it was unreasonable for the trial judge to accept the evidence of Ms. Charles [his girlfriend at the time of the murder] 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. These arguments are a challenge not to the legal principles pertaining to circumstantial evidence, but are, instead, an attack on the reasonableness of the verdict. They are properly aspects of Mr. Shaoulle's argument that the verdict based on circumstantial evidence is unreasonable: see R. v. 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." - See paragraphs 12 to 14.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - The Saskatchewan Court of Appeal discussed the standard of review to be applied when assessing whether a conviction was unreasonable or unsupported by the evidence (Criminal Code, s. 686(1)(a)(i)), particularly where the appeal was from a judgment of a judge sitting at trial without a jury - See paragraphs 15 to 22.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - The accused was convicted of first degree murder, after a trial by judge alone - The Crown's case was comprised entirely of circumstantial evidence - The accused appealed on the sole ground that the verdict was unreasonable or could not be supported by the evidence - The Saskatchewan Court of Appeal stated that the accused's submissions not only invited the court to reweigh and reexamine the evidence, which was a permissible exercise of a known appellate power, but also to consider the evidence in a piecemeal fashion or reassign weight to individual pieces of evidence according to its own view of the evidence - The court stated that an appellate court incurred a risk in considering evidence in a piecemeal fashion; it was not an appellate court's function when considering the reasonableness of a verdict to reweigh, not the whole of the evidence, but individual pieces of it and either discard items of evidence or discount them - See paragraphs 28 to 31.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - In the early morning hours, Sewap's naked and partially burned body was found under brush and snow in a commercial area in Prince Albert - She had been brutally sexually assaulted before being manually strangled to death - Shaoulle was convicted of first degree murder, after a trial by judge alone - The Crown's case was comprised entirely of circumstantial evidence - Shaoulle appealed on the sole ground that the verdict was unreasonable or could not be supported by the evidence - The Saskatchewan Court of Appeal dismissed the appeal - The trial judge based his decision on the combination of the inculpatory circumstances: notably, a video showing Shaoulle as the last person to be seen with Sewap (eight hours before her body was discovered), the evidence of Charles (Shaoulle's girlfriend) as to Shaoulle's actions and behaviour after he returned from Prince Albert, fingernail DNA evidence, and the evidence of an undercover officer with whom Shaoulle shared a cell after his arrest regarding advice he gave the officer respecting how to deal with a troublesome girlfriend (kill her and burn the body) - The trial judge concluded that Shaoulle's DNA was transferred to Sewap during a violent altercation between the two that resulted in her death - He determined that Shaoulle caused her death by strangulation while, or after, committing a sexual assault on her - The trial judge stated that the most significant piece of evidence was the testimony of Charles, whom he found to be a very credible and compelling witness - In resolving inconsistencies in the evidence, he placed substantial weight on Charles' testimony - He specifically found that her testimony was forthright and her observations were salient, cogent and reliable - He found her highly credible and rejected none of her evidence - He repeatedly instructed himself that the Crown had to demonstrate beyond a reasonable doubt that for guilt to occur, that guilt had to be the only rational inference to be drawn from all of the evidence - The decision was one that a reasonably instructed jury could have rendered - See paragraphs 1 to 42.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - In the early morning hours, Sewap's naked and partially burned body was found under brush and snow in a commercial area in Prince Albert - She had been brutally sexually assaulted before being manually strangled to death - Shaoulle was convicted of Sewap's first degree murder, after a trial by judge alone - The Crown's case was comprised entirely of circumstantial evidence - Shaoulle appealed on the sole ground that the verdict was unreasonable or could not be supported by the evidence - The Saskatchewan Court of Appeal dismissed the appeal - The court stated that "Silence may not be placed on the evidentiary scales ... - nor can silence be used as a 'make-weight' ... - but it is permissible to conclude from the failure to testify that there is no unspoken, innocent explanation about which an appellate court must speculate. 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: the presence of Mr. Shaoulle's DNA in the clippings taken from Ms. Sewap; the burning of the glove; the odour on his clothing; what he did when he came home from Prince Albert, including his sudden conversion to cleanliness; what he said to Ms. Charles [his girlfriend] about his injuries; and his statements to the undercover officer. All of this evidence stood unexplained. No innocent explanation is apparent on the face of the record for any of these individual pieces of evidence." - See paragraphs 43 to 45.

Criminal Law - Topic 4973

Appeals - Indictable offences - Powers of Court of Appeal - Power to review and weigh evidence - [See first and third Criminal Law - Topic 4865 ].

Evidence - Topic 306

Circumstantial evidence - Rule in Hodge's Case - Whether evidence consistent with other rational conclusions - [See first and fourth Criminal Law - Topic 4865 ].

Cases Noticed:

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, appld. [para. 14].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 17].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [para. 18].

R. v. Reitsma (S.J.), [1998] 1 S.C.R. 769; 226 N.R. 367; 107 B.C.A.C. 161; 174 W.A.C. 161, refd to. [para. 18].

R. v. O'Connor (H.P.) (1998), 105 B.C.A.C. 56; 171 W.A.C. 56; 123 C.C.C.(3d) 487 (C.A.), refd to. [para. 18].

R. v. A.G., [2000] 1 S.C.R. 439; 252 N.R. 272; 132 O.A.C. 1; 2000 SCC 17, refd to. [para. 20].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 21].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 21].

R. v. Sinclair (T.), [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 21].

R. v. W.H., [2013] 2 S.C.R. 180; 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 W.A.C. 1; 2013 SCC 22, refd to. [para. 22].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, consd. [para. 29].

R. v. Thompson (R.D.) et al. (2015), 460 Sask.R. 98; 639 W.A.C. 98; 323 C.C.C.(3d) 514; 2015 SKCA 59, refd to. [para. 31].

R. v. Aden (M.A.) - see R. v. Thompson (R.D.) et al.

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, appld. [para. 43].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, appld. [para. 43].

R. v. Noble (S.J.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, appld. [para. 43].

R. v. Sparvier (G.C.) (2006), 289 Sask.R. 79; 382 W.A.C. 79; 2006 SKCA 139, appld. [para. 43].

R. v. Brass (D.A.R.) (2007), 304 Sask.R. 20; 413 W.A.C. 20; 2007 SKCA 94, appld. [para. 43].

R. v. B.D.T.W. (2015), 315 Man.R.(2d) 237; 630 W.A.C. 237; 2015 MBCA 24, appld. [para. 43].

R. v. Goodkey (K.G.) et al. (2015), 367 B.C.A.C. 231; 631 W.A.C. 231; 2015 BCCA 64, appld. [para. 43].

R. v. Luu (T.P.) (2010), 272 O.A.C. 55; 2010 ONCA 807, dist. [para. 46].

R. v. R.H.B., [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 70].

R. v. Wills (B.) (2014), 318 O.A.C. 99; 2014 ONCA 178, affd. [2014] 3 S.C.R. 612; 465 N.R. 301; 327 O.A.C. 4; 2014 SCC 73, refd to. [para. 71].

R. v. Turcotte (T.), [2005] 2 S.C.R. 519; 339 N.R. 32; 216 B.C.A.C. 1; 356 W.A.C. 1; 2005 SCC 50, refd to. [para. 76].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 77].

R. v. Griffin (J.) et al., [2009] 2 S.C.R. 42; 388 N.R. 334; 2009 SCC 28, refd to. [para. 78].

R. v. Rodgerson (J.) (2014), 319 O.A.C. 254; 2014 ONCA 366, refd to. [para. 79].

R. v. Rojas (M.A.) et al., [2008] 3 S.C.R. 111; 380 N.R. 211; 260 B.C.A.C. 258; 439 W.A.C. 258; 2008 SCC 56, refd to. [para. 98].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a)(i) [para. 15].

Counsel:

Brian R. Pfefferle, for the appellant;

W. Dean Sinclair, Q.C., for the respondent.

This appeal was heard on October 24, 2014, by Jackson, Klebuc and Ottenbreit, JJ.A.,  of the Saskatchewan Court of Appeal, who delivered the following reasons for judgment on September 30, 2015, which was comprised of the following opinions:

Jackson and Ottenbreit, JJ.A. - see paragraphs 1 to 48;

Klebuc, J.A., dissenting - see paragraphs 49 to 127.