2007 BCCA 82 R. v. Pritchard

Before:	The Honourable Madam Justice Newbury
	The Honourable Mr. Justice Hall
	The Honourable Madam Justice Kirkpatrick

R.C. Gibbs, Q.C. R.H. Holloway	Counsel for the Appellant
K. Ker T. Shaw	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
December 13 and 14, 2006
Place and Date of Judgment:	Vancouver, British Columbia
February 8, 2007

Written Reasons by:

The Honourable Mr. Justice Hall (pp. 59 – 65.)

Concurred in by:

The Honourable Madam Justice Kirkpatrick

Reasons Concurring in the Result by:

The Honourable Madam Justice Newbury (pp. 1 – 58.)

Reasons for Judgment of the Honourable Madam Justice Newbury:

[1] The appellant, Mr. Pritchard, was convicted of the first degree murder of Pirkko Skolos on December 14, 2002, after a trial that began in October 2000. As the Crown notes in its factum, numerous voir dires and pre-trial motions were heard over 130 days during the ensuing 18 months. A number of rulings were delivered in April 2002. The trial recommenced on May 15, 2002 with the jury present, and on September 23, 2002, the Crown closed its case after calling some 73 witnesses and entering more than 140 exhibits. After an unsuccessful application for a directed verdict on first degree murder, the defence opened its case on September 30, 2002, calling nine witnesses, including Mr. Pritchard himself. The trial judge’s charge to the jury began on December 9 and concluded three days later. The jury deliberated for almost three days before returning its verdict.

[2] As its length suggests, the trial was a difficult one. Remarkably, the Crown’s case was based largely (although not entirely) on circumstantial evidence. To this date, the body of Mrs. Skolos has not been located and there was no physical evidence as to how she died. No physical evidence directly links Mr. Pritchard, or anyone else, to her last-known whereabouts (the farm where she and her husband lived and carried on a marijuana wholesaling operation), or to her death. The circumstantial evidence against the appellant consists of allegations of his advance knowledge of a shipment of marijuana expected by the Skolos’, his being in possession of two trunks of marijuana that were stolen from the farm, the timing of his movements on the night in question, some suspicious conduct post-offence, and his general familiarity with guns arising from his admitted involvement in armed robbery (especially “drug rips”) and drug debt “enforcement”. Together, these circumstances might not have been enough to go to a jury on a charge of murder. The Crown’s case was augmented, however, by statements made by Mr. Pritchard to the R.C.M.P. over their lengthy investigation, and in particular a statement made in January 2000. The Crown adduced this statement – or more accurately, the exculpatory parts of it – not for the truth of their contents, but to show that Mr. Pritchard had “fabricated evidence to mislead the jury”. Mr. Pritchard repeated the contents of the statement as part of his testimony at trial.

[3] On January 19, 2000, Mr. Pritchard told police he and his friend Bill Wall had spent several weeks planning a “drug rip” at the Skolos’ farm. Mr. Pritchard said that ultimately, Mr. Wall decided he and his nephew, James Ens, would carry out the robbery. Mr. Pritchard’s role would be limited to distracting the police, if it became necessary, from stopping and searching Mr. Wall’s vehicle after the robbery, and then selling the marijuana. Mr. Pritchard stated (both in January 2000 and at trial) that on the night of November 23, 1995, Mr. Wall told him that he, Mr. Wall, had shot Mrs. Skolos accidentally in the course of the robbery, but then “lost it” and just kept shooting. Mr. Pritchard offered to bury Mrs. Skolos’ body, he said, in a grave that he had already dug for someone else. While burying her, he said, he had noticed a spot of blood on the back of her head. He took the stolen marijuana and left town the next day. The burial site was never located, despite Mr. Pritchard’s apparent efforts to find it again in accordance with a “Limited Immunity Agreement” he signed with the R.C.M.P. (In the course of the trial, the appellant sought a stay of proceedings on the ground that he had complied with his obligations under the Agreement but the trial judge concluded he had not done so and that in charging him with first degree murder, the Crown had not committed any abuse of process or other misconduct: see 2002 BCSC 456.)

[4] As mentioned above, the trial judge dismissed a defence application for a directed verdict on first degree murder at the end of the Crown’s case. He rejected the Crown’s contention that there was sufficient evidence of planning and deliberation to go to the jury, or that the evidence could support an inference that Mrs. Skolos had been kidnapped; he left open the possibility of murder in the course of a confinement or attempted confinement of Mrs. Skolos as referred to at s. 231(5) of the Criminal Code. The gist of his reasoning on this route was that:

Mr. Pritchard’s statement places Bill Wall and James Ens at the farm. He said in the statement that Bill Wall killed Mrs. Skolos and describes the manner in which it took place. If the version of events related by Mr. Pritchard is believed, or raises a reasonable doubt, that is the end of the matter – he will be acquitted.

The jury may, however, believe Mr. Wall when he said that he had nothing to do with the robbery. They may conclude that Mr. Pritchard killed Mrs. Skolos in the course of robbing her of the marijuana and that he has selectively substituted Bill Wall for himself in the narrative in order to escape punishment for the crime. If the jury reaches that conclusion, and I am satisfied that it is open for them to do so on the evidence led by the Crown, it would follow that they could infer from that and other evidence that Mrs. Skolos’s movements were directed by Mr. Pritchard under armed threat for a significant period of time and while confined, she was killed. [At paras. 42-3.]

Following this ruling, the defence put its case in, which featured Mr. Pritchard on the stand for 18 days and his wife for about nine days.

[5] In this court, the defence submits that the jury reached an unreasonable verdict and that they did so as a result of three errors in the trial judge’s charge to the jury. Specifically, it is said the trial judge erred in his instruction to the jury by:

a. incorrectly instructing the jury on the meaning of “confinement” in s. 279 of the Criminal Code;

b. failing to instruct the jury that they could not draw the unsupported inferences that the appellant killed Mrs. Skolos because she refused to reveal the whereabouts of the marijuana “stash”, tried to escape or recognized him, or that Mr. Pritchard had confined or dominated Mrs. Skolos to prevent her escape, forced her to reveal the stash site or to assist in carrying the marijuana; and

c. incorrectly instructing the jury that they could draw the inference that Mr. Pritchard was speaking about himself when he described how Bill Wall told him he had shot and killed Mrs. Skolos.

(Two other grounds of appeal were raised in the factum but were abandoned at the outset of the appeal hearing.)

[6] As will be seen below, I am of the view that the trial judge did not err in any of the ways submitted by the appellant. I do find that the trial judge’s instruction concerning the significance of a finding of “fabrication” of alibi evidence was erroneous; however, I believe the result in this case would have been the same had the correct instruction been given. I would therefore dismiss the appeal.

FACTUAL BACKGROUND

[7] Mr. and Mrs. Skolos lived near Topley, a small town about 275 kilometres west of Prince George. On November 21, 1995, they received a shipment consisting of three steamer trunks, each containing about ten pounds of marijuana. Mr. Skolos also received a small baggy of marijuana “bud” wrapped in a plastic Safeway shopping bag that he kept in a chair for personal use. Shortly after the delivery, he had to travel to Vancouver Island to attend his brother’s funeral. Before doing so, he took the three trunks out to a secret location on the farm known as the “stash”. Mrs. Skolos remained on the farm while her husband was away.

[8] On November 25, Mr. Skolos arrived home to discover that his animals had not been fed, that two of the three trunks and the Safeway bag of “bud” were gone, and that Mrs. Skolos, her wallet and some cheques were missing. There was evidence indicating that Mrs. Skolos had not intended to leave the house for long. Her eyeglasses were still in the house, but her “Topley Grocery” coat was gone – a detail that matched Mr. Pritchard’s pre-trial description of the body he had buried. Mrs. Skolos’ footprints and those of at least one other person could be seen in the snow leading to the location of the stash, which was some 250-300 metres away from the farmhouse. Plastic and foam were strewn all around and the marijuana was gone.

[9] Mr. Skolos testified that he had told his wife that in the event of a robbery, she should give up the marijuana without a struggle. On the other hand, Mrs. Skolos had confided to a friend that if her grocery store were ever robbed, “No one would ever take anything from me without a fight.” Mr. Skolos also testified that whenever a customer came to the house for marijuana, he (Mr. Skolos) would go to the “stash” alone and bring it back to the farmhouse. He agreed that in his absence, Mrs. Skolos would have gone to the stash to get marijuana for Abe Wall (their primary buyer, who was Bill Wall’s brother), Bill Wall or a Mr. Darryl Wilson.

[10] At the site of the stash, one suitcase remained, containing plastic and green foam neatly packed. It had been Mrs. Skolos’ habit to fold plastic wrappings neatly when she unpacked and transferred marijuana that arrived by suitcase, into larger, permanent trunks. Mr. Skolos agreed that the neatness of the plastic suggested that his wife might have made a marijuana deal with someone.

[11] Mr. Skolos noted the tracks of an all-terrain vehicle (“ATV”) headed towards the stash. He owned an ATV, which appeared to have become stuck on its way to the stash and then returned to its normal place. Its transmission had been shifted from high to low range. Mr. Skolos testified that his wife never operated the ATV. By the time the police searched the farm, it appeared that a large truck or vehicle had driven up the driveway, but no identifiable tire pattern imprints could be ascertained. There was no sign of a struggle or blood at the farmhouse or at the stash, and an extensive search of the farm by a tracking dog failed to locate Mrs. Skolos’ body.

[12] The R.C.M.P. investigation of Mrs. Skolos’ disappearance focused at first on who would have known about the marijuana delivery. As the Skolos’ main customer, Abe Wall had known and he told the police that his brother Bill had also known about it. (There was evidence that the Wall brothers were long-time participants in the illegal drug business, Abe as a seller and Bill as financier.) Mr. Pritchard and Bill Wall were friends who had often hunted together and had visited the Skolos’ farm at least twice. Bill Wall told the police in July 1996 that he might have accidentally told Mr. Pritchard about the new shipment that arrived on November 21.

[13] Mr. Pritchard’s substantial criminal record as a drug dealer and “enforcer” was of interest to the police. They interviewed him in July 1996 and conducted interceptions of his private communications over the next several months. In the first interview, Mr. Pritchard denied that Bill Wall had mentioned the arrival of the shipment, and denied having been at the Skolos’ farm on November 23, 1995. He did acknowledge having visited the farm previously with Mr. Wall, however. Mr. Pritchard freely acknowledged that he was a career criminal who often stole and sold lumber, grew and sold marijuana, “ripped off” other drug dealers and enforced outstanding drug debts. He also admitted that he often acquired, used and disposed of various vehicles that were improperly plated and “disposable”.

[14] Mr. Pritchard’s girlfriend at the time of Mrs. Skolos’ disappearance was Ms. McCarthy. She testified that on the evening of November 23, 1995, between 8:00 and 9:00 p.m., Mr. Pritchard had left her in their motel room in Prince George, saying he had to go to Houston to harvest some marijuana and would be back much later. Since he did not ask for the keys to her truck, she assumed he was taking his own (green) truck. He returned at about 4:00 a.m. with two steamer trunks (one green and one blue) filled with Ziploc baggies of marijuana and a partially-filled green canvas duffle bag. He also had a great deal of money, whereas he had theretofore been in dire financial straits. Although he said he had taken his green truck when he left Ms. McCarthy, he told her it had broken down during the course of the trip, and she later saw it on the side of the Hart Highway at a body shop. No forensic evidence was found in what remained of the vehicle when it was eventually tracked down by police. (The Crown’s theory was that he had used a disposable “beater” on the night of November 23-24, although Mr. Pritchard testified he had used Ms. McCarthy’s properly plated blue truck to drive to Burns Lake for his rendezvous with Bill Wall.) At about 8:00 p.m. on November 24, he and Ms. McCarthy left Prince George in her blue truck and headed to Edmonton, where Mr. Pritchard bought himself another truck. Their new-found money lasted until about March 1996.

[15] When the two were in Taylor, B.C. in January 1996, Mr. Pritchard disposed of one of the Skolos’ trunks by throwing it over an embankment near the Canfor mill. Ms. McCarthy later took the police to this site, where they located the trunk. Mr. Skolos identified it as one of the three that he had filled with marijuana. In the trunk, police found a plastic Safeway bag which had Mr. Pritchard’s thumbprint on it.

[16] At trial, Mr. Pritchard admitted that he had been selling off the Skolos’ marijuana in locations where it could not be traced back to the robbery. He testified that he was to have received a half-share of the marijuana – even though his role had been limited to “bird-dogging” Mr. Wall’s car and burying the body. Later, he told the R.C.M.P. that he gave only $1,000 to Mr. Wall. At trial, however, he claimed to have paid Mr. Wall some $20,000.

[17] There was considerable evidence, which I will not describe in detail, of Mr. Pritchard’s extensive familiarity with guns. He owned a .22 calibre handgun which Ms. McCarthy saw in his truck December 31, 1995, and a larger “dummy” handgun that he kept wrapped in a balaclava. The dummy was found by Mr. Ens in one of the appellant’s two trucks. As for the real .22 handgun, Mr. Pritchard arranged for Mr. Menton to pick it up from a friend of Ms. McCarthy’s, Ms. Prest, who stored the luggage of Mr. Pritchard and Ms. McCarthy while they were away in early 1996. At Mr. Pritchard’s request, Mr. Menton eventually threw the .22 into Skaha Lake, where the police later recovered it. He also disposed of Mr. Pritchard’s replica gun by tossing it into a dumpster in Merritt. (Mr. Pritchard attributed his anxiety about the guns to a fear that if they were found, he would be charged with offences relating to their possession.)

[18] Mr. Pritchard acknowledged that he almost always carried a handgun, and that all his handguns were illegal, unregistered and mostly stolen. He said he had traded a .22 back and forth with Bill Wall and it would have been appropriate to use a lesser quality disposable gun for a drug rip, such as the older .22 calibre weapon in question. He also suggested that if he had been present at the time of the robbery, no gun would have been discharged accidentally. In his words at trial:

A. I agree that maybe a skilled person could maybe go and do that, but I also say that I’ve never ever shot anyone that I didn’t mean to shoot, and I don’t mean Pirkko Skolos and I don’t mean killing anyone, I mean someone who I shot once that’s still alive. I don’t have a lot of mistakes and accidents with guns. I’ve had it happen a time or two when I was a kid and once when I was an adult. No gun would have went off accidentally if I was there.

[19] For his part, Mr. Wall testified that he tended to avoid handguns and denied trading a .22 back and forth with Mr. Pritchard. He admitted discussing the purchase of such a handgun from his nephew Jeremy Ens (the brother of James Ens) in the fall of 1994, but both he and the nephew testified that he never took possession of it. The gun they had discussed was entered as an exhibit at trial and was said not to be the appellant’s gun by Ms. McCarthy, Ms. Prest, and Mr. Menton.

[20] In the late months of 1996, the R.C.M.P. attempted to elicit information pertaining to Mrs. Skolos by releasing some details of their investigation to Bill Wall, Ms. Hardy and Mr. Pritchard himself. The most significant revelation came during a taped conversation between Mr. Pritchard and Ms. Hardy. At one point in the taped conversation, Mr. Pritchard could be heard apparently crying, and saying inter alia, “You don’t know what it’s like [indecipherable] … I mean I shot two fuckin’ people.” An edited recording of this so-called “STFP” conversation was admitted into evidence by the trial judge with warnings for the jury as to its proper use. (Although the appellant initially argued in his factum that the trial judge erred in his treatment of this statement, counsel abandoned that ground of appeal at the hearing of the appeal.)

[21] The R.C.M.P.’s efforts to persuade Mr. Pritchard to disclose the location of the body were unsuccessful. Mr. Pritchard insisted for many months that he did not know where it was, and gave alibis and information to the police in 1996 and 1998 that he later admitted were false. He had also told them in 1996 that if he had robbed the Skolos’ farm, he would not have involved anyone else. However, in January 2000, on the eve of trial, he agreed to enter into the Limited Immunity Agreement with the Crown and R.C.M.P. In it, he promised to cooperate fully with the police investigation and to point out the location of Mrs. Skolos’ body, which he said he had buried in order to assist Bill Wall. In return, the Crown agreed he would not be charged with first degree murder in connection with Mrs. Skolos’ death.

[22] Initially, Mr. Pritchard told the police he had dug a grave near East Shelley Road for one Bill Ranahan and had been assisted in that task by another man (whom he called “Rob”) and that they had completed the task in one and a half hours. He said he had located the hole quite easily when it came time to bury Mrs. Skolos. This operation had taken only 15-20 minutes despite sub-zero temperatures. He had resisted identifying “Rob” because he had not wanted to be labelled as a “rat”, given his expectation to be in jail for a long time on the narcotics charges for which he had been imprisoned by this point. The trial was adjourned for several months to allow the grave to be located.

[23] As the search proved fruitless, its scope was enlarged, and Mr. Pritchard abandoned his original description of the location. The jury heard extensive evidence about the ever-expanding efforts of experts for both sides using electro-conductivity soil tests, ground penetrating radar and soil examination. In the end, although the possibility of a buried body could not be absolutely eliminated, all the evidence indicated that there was no body at or anywhere near the locations pointed out by Mr. Pritchard – notwithstanding his testimony that he would “never, ever, ever in my life forget that area” and that on the night of the robbery, he had known just “where to pull in” off Shelley Road to find the hole that he and the unknown man had dug. Mr. Pritchard underwent hypnosis in August 2002 in an apparent effort to revive his memory, but it did not prove helpful and its efficacy was disputed by a Crown expert in any event.

[24] Although aspects of Mr. Pritchard’s statement of January 2000 were inconsistent with what he had previously told the police, it was generally consistent with his testimony at trial. In both, he said that he and Bill Wall had concocted a plan to rob the Skolos of their marijuana and in fact, discussed the plan for many months. (This assertion was confirmed by Ms. Hardy at trial, who said she recalled Mr. Pritchard’s telling her, well before November 23, 1995, that Mr. Wall had mentioned a “good score”.) Mr. Pritchard had concluded that a .22 gun would serve the purpose of securing the Skolos’ co-operation and derided counsel’s suggestion that a replica might have been sufficient.

[25] According to Mr. Pritchard, the plan finally came to fruition unexpectedly on November 23. Mr. Pritchard had visited Ms. Hardy at the hospital in the early afternoon (she had given birth to their second child that day) and returned at about 8:00 p.m. after spending some time at the motel with Ms. McCarthy. By coincidence, he met Bill Wall at the hospital, who told him that the plan was “a go” that night. They arranged to meet 15 minutes later at a nearby parking lot. There, Mr. Wall told him the marijuana had arrived and that he and James Ens were going to go and get it. Mr. Pritchard was told to be at the 7-Eleven Store in Burns Lake (the “main centre of activity” in the town) at 1:00 a.m. to accompany Mr. Wall’s vehicle back to Prince George. Mr. Pritchard had his Glock handgun and Mr. Wall had his cheap .22 calibre revolver with him. Mr. Pritchard went back to the motel to “tuck in” his girlfriend, did some errands in Prince George, and left at about 9:00 p.m. for Burns Lake in Ms. McCarthy’s small blue pickup truck.

[26] Mr. Pritchard said he arrived in Burns Lake after midnight and waited around for Bill Wall, who eventually pulled into the parking lot, looking distraught. According to Mr. Pritchard’s testimony, Mr. Wall was “freaked … worked up … incoherent … jumping around … babbling … pacing back and forth.” Mr. Wall told Mr. Pritchard that he and James Ens had stolen the marijuana but that in the process he had accidentally shot Mrs. Skolos. Mr. Pritchard tried to calm Mr. Wall down at a rest stop area outside Burns Lake and at other stops on the way back to Prince George. Over these conversations, Mr. Pritchard said Mr. Wall told him the gun had first gone off accidentally but that he “just kept shooting her” and “just lost it.” Mr. Pritchard found this hard to understand, he told the police, because he had pointed “lots of guns at people and I’ve never even once had one go off by accident.” Later in the statement, he said Mr. Wall told him he had shot Mrs. Skolos as they were walking back to the house from the stash. He continued:

She just dropped, like never said a word, she never let out a sound or nothing Bill said, just dropped, and I mean, if you shoot someone anywhere in the spine or the head they’re, whatever, they’re going to do that.

After this, Bill Wall had “freaked out” and said he “fired a bunch of shots” – probably four. At trial, Mr. Pritchard described Mr. Wall’s story as follows:

And he kept telling me, The gun went off, the gun just went off and I shot her. And I’m not sure if he told me right then -- right exactly then, but he did tell me that he just -- he emptied his gun out or shot a whole bunch of rounds off, just kept shooting and shooting. And I don’t know how many times he shot her. I know she was dead. I know he shot her in the head.

[27] Mr. Wall and James Ens, Mr. Pritchard said, wrapped the body in a blanket of Mr. Pritchard’s that happened to be in Wall’s red truck, some “poly” and a tarp. At some point, they tried to operate the Skolos’ ATV, but got stuck. Mr. Wall also told him that as planned, he and Mr. Ens had parked Mr. Wall’s truck at a rest area before reaching the farm, and had driven to the Skolos’ farm in Mr. Ens’ truck. After they left with Mrs. Skolos’ body and the marijuana trunks, they had transferred everything into Mr. Wall’s red truck at the rest area.

[28] According to Mr. Pritchard, he and Mr. Wall drove from Vanderhoof to Ms. Hardy’s trailer in Prince George. They lifted the trunks of marijuana out of Mr. Wall’s truck and put them into a shed. Mr. Pritchard told Mr. Wall that he would bury the body in a hole he had already dug for someone else. They moved the body from the passenger floor area of Mr. Wall’s truck to Ms. McCarthy’s truck. Mr. Wall said he would look after the disposal of the gun (Mr. Pritchard told him to melt it or grind it down), while Mr. Pritchard would dispose of the balaclava, gloves and overalls. After Mr. Wall left, Mr. Pritchard decided to retrieve the marijuana trunks because he did not want them left in the shed.

[29] Mr. Pritchard said he was then able to locate quickly the grave he had previously dug near Shelley Road. He buried Mrs. Skolos under a mound of dirt and covered it over with debris and leaves to make it look unaltered. Then he returned to Ms. McCarthy at the motel with the two trunks and the duffle bag full of marijuana, which he carried into their room. The next morning, he took the trunks to his storage locker, sold some of the marijuana (he would not say to whom), left about $1,000 for Bill Wall and about $2,000 for Ms. Hardy in her trailer and visited Ms. Hardy in the hospital. He returned to the site where he had buried Mrs. Skolos and made sure it looked “reasonably natural.” Then he and Ms. McCarthy departed that evening for Edmonton. He was in and out of Prince George over the next few months. As pre-arranged, he and Bill Wall pretended to have had a falling-out and did not see each other very often during this period. However, he said he gave Mr. Wall a total of approximately $20,000 from the proceeds of his marijuana sales. According to his testimony, he had received about 26 pounds of the product from Mr. Wall after the robbery.

[30] Mr. Wall, who was on the stand for about 11 days, acknowledged that he was a friend and ‘hunting buddy’ of Mr. Pritchard’s. However, he denied making any plans or having any discussions with him about “ripping off” the Skolos’ marijuana shipment. (Mr. Wall said he had done a “drug rip” when he was young, but that was his first and only one and no one had been home at the time.) He had a criminal record for drug offences when he was in his twenties and had been addicted to cocaine a few years before Mrs. Skolos’ disappearance.

[31] Mr. Wall recalled that he had taken Mr. Pritchard with him to the Skolos’ farm in the spring of 1994 to inspect a John Deere Cat that was for sale. Mr. Skolos told Mr. Wall that his brother Abe had come by to pick up some marijuana and would be returning. Mr. Wall was surprised that Mr. Skolos would mention the topic in front of a stranger. As they were leaving, he checked to see if the appellant had heard the conversation. From Mr. Pritchard’s response, he surmised that Pritchard had in fact heard it. He denied any discussion during the drive back to Prince George, of “ripping off” the Skolos’ marijuana. Although Mr. Wall later conceded it was possible Mr. Pritchard had learned of the November 21 marijuana delivery through him, he said he had not told Mr. Pritchard directly of the delivery date.

[32] Presumably to counter the suggestion that Mr. Wall had a motive to do the robbery and murder, the Crown adduced evidence to show that Mr. Wall had a good income, which he supplemented with marijuana dealing from time to time. He had also been a friend of the Skolos for many years. He agreed that he had visited Ms. Hardy in the hospital on the evening of November 23, 1995, although in cross-examination, he said he had thought the visit took place on the Friday evening (November 24) before his scheduled hunting trip with Mr. Pritchard. (The latter had not turned up for the trip the following day.) He denied meeting the appellant at the hospital and said he had not learned of Mrs. Skolos’ disappearance until the following Tuesday evening, November 28. Shortly thereafter, he visited the Skolos’ farm for about an hour. He denied counsel’s suggestion that he had done so only in order to cover up the footprints he had left there earlier, and said he had gone to the farm because his friend’s wife was missing. It was not until early 2000, he testified, that he learned that Mr. Pritchard was telling police that he, Mr. Wall, was responsible for Mrs. Skolos’ death.

[33] Mr. Pritchard testified that Mr. Wall had not stopped to refuel on his way back from the farm after the robbery. Mr. Wall was cross-examined closely on his testimony that he would not have been able to drive his truck, which ran on propane, on a return trip from Prince George to the Skolos’ farm and back without refuelling along the way. The Crown called ten witnesses, including various gas station owners and “card lock” operators, to address this issue and there was no persuasive evidence that Mr. Wall had fuelled up on the night in question. There was evidence that Mr. Wall’s vehicle could be ‘changed over’ from propane to gas, although the operation was apparently difficult. An examination of the vehicle yielded nothing of forensic significance.

[34] James Ens testified that at some time after he had met Mr. Pritchard in 1994 or 1995, Mr. Pritchard had approached him about doing a different “drug rip” but that he had refused. Although Mr. Pritchard’s version of the events of November 23-4, as allegedly related to him by Bill Wall, included the presence of Mr. Ens at the Skolos’ farm, Mr. Pritchard testified in cross-examination that on reflection, he thought Mr. Ens’ denial of participation in the robbery rang true and that he did not think that Mr. Ens had been “involved in this at all.” He said he had never seen Mr. Ens with a .22 gun and had not seen him on the night of the robbery. Still later in his testimony, Mr. Pritchard said he thought that Mr. Wall had done the robbery at the Skolos’ farm with someone else, but had made up a story that Mr. Ens had been the second person. Mr. Pritchard rejected the Crown’s suggestion that he, Pritchard, was making the entire story up.

[35] The appellant was cross-examined on a statement he had given in July 1996 to the R.C.M.P., but characterized it as having contained a “halftruth here and there”, but mostly lies and “bullshit”. Indeed, he said he had “lied through his teeth” to Inspector Paulson on that occasion and had not been ready then to “rat out” Bill Wall despite the $50,000 reward being offered, his expressed fear of Mr. Skolos, and his sadness over the death of Mrs. Skolos. At volume 34 of the transcript, he gave the following evidence:

Q. … Now I stop there with this. Again, sir, what you’re doing is you’re telling part truths and part lies; isn’t that right?

A. That’s right.

Q, And what again you do here is you say the 23rd I was in Prince, the 24th I was in Prince. You were telling the policeman that directly again as you did before to have him believe that you couldn’t possibly be down towards the Skolos’ farm at the time Mrs. Skolos went missing; isn’t that right?

A. That’s right.

Q, You were trying to deceive him?

A. That’s right.

Q. And you were trying to deceive him to avoid any criminal liability; isn’t that right?

A. That’s right.

Q. And you also in citing that story of being in Prince George, you gave absolutely no points or places in which the story could be corroborated, that was nothing that could be done beyond asking Shannon who was in hospital where you were; isn’t that right?

A. Yeah, asking Kim and getting motel receipts and stuff, but I wasn’t -- I wasn’t telling him that.

Q, But you didn’t tell him you were with Kim. What I’m doing -- saying is --

A. No, I didn’t tell him I was with Kim, I lied, this is -- this is a bald-faced lie I told him.

Q. You didn’t disclose to them any information whereby they could go out and check your whereabouts, the furthest --

A. No.

Q. -- they could go -- just a minute. The furthest they could go on what you said would be go to the hospital -- or she’d be home by now, go to Shannon and ask if you’d come to the hospital and if she could remember when. Beyond that you gave them nothing to check; isn’t that right?

A. That’s right.

He admitted that in the 1996 intercepted conversations between himself and Mr. Wall and Ms. Hardy, he had been trying to find out exactly what the police knew. When questioned by the Crown (to lay a foundation for its theory that his story had been fabricated), he acknowledged that he had read all the Crown disclosure reports several times before giving his statement in January, 2000. He had also heard testimony given in the previous drug trial and in the preliminary hearing in this proceeding.

ANALYSIS

[36] In summary, there was strong circumstantial evidence that Mr. Pritchard had a role in at least the robbery of the Skolos’ marijuana on the night of November 23, 1995. This evidence included the fact that he had learned of a new shipment received by the Skolos, his movements the evening of November 23 as described by his girlfriend, and his unquestioned possession of the two trunks and the Skolos’ marijuana early the next morning. (There was also his suspicious “post-offence” conduct, especially his instructing Mr. Menton to dispose of two guns, but the latter led nowhere in the absence of information as to how Mrs. Skolos had been killed.) Without Mr. Pritchard’s own statements to the police, however, the evidence provided no real link to Mrs. Skolos’ killing. It was only the statement of January 2000 that seemed to provide something of a link. It contained admissions that Mr. Pritchard had participated in the planning of a robbery at the farm that would involve using a gun to coerce the owners into revealing the location of the stash, that Mrs. Skolos had been shot dead in the course of the robbery, and that he had buried her body and taken and sold the marijuana.

[37] From Mr. Pritchard’s point of view, however, the statement was basically exculpatory – although it might have led to some relatively minor charges such as offering an indignity to human remains. If believed, it provided an explanation for the existing circumstantial evidence in a manner consistent with his non-involvement in Mrs. Skolos’ murder, and it threw the spotlight onto Mr. Wall and Mr. Ens as the possible killers. But the Crown asked the jury not to believe Mr. Pritchard’s explanation and to find that he had “fabricated” it in order to mislead them – and to use that finding in support of an inference that he was guilty of murder. In the words of the trial judge in his earlier ruling, the Crown contended that the statement was “so obviously false and fabricated, that it provides additional evidence upon which the Crown may rely to prove that Mr. Pritchard killed Mrs. Skolos.” Alternatively, and with less conviction, the Crown asked the jury to infer that Mr. Pritchard’s story was generally true, with one important exception – that Mr. Pritchard had “substituted” Mr. Wall for himself in describing what had transpired at the Skolos’ farm on the night in question.

[38] It is obvious from the jury’s verdict that the statement was not believed in its entirety and did not even raise a reasonable doubt as to the appellant’s guilt in the jury’s mind – otherwise, they would have had to give Mr. Pritchard the benefit of the doubt and acquit. In my opinion, the first question arising on this appeal is therefore whether the jury was properly instructed on the use they could make of the statement, and if not, whether the verdict was unreasonable in the sense explained by the Supreme Court of Canada in cases such as R. v. Biniaris 2000 SCC 15, [2000] 1 S.C.R. 381, and R. v. Yebes [1987] 2 S.C.R. 168.

[39] As has been seen, the trial judge concluded at the end of the Crown’s case that there was sufficient evidence to go to the jury on the charge of murder in the first degree. He was satisfied that it was open to the jury to conclude that Mr. Pritchard had killed Mrs. Skolos in the course of the robbery and that he had “selectively substituted Bill Wall for himself in the narrative in order to escape punishment for the crime.” If the jury did reach that conclusion, the trial judge reasoned, it was open to them to infer from that and from other evidence that Mrs. Skolos’ movements were directed by Mr. Pritchard “under armed threat for a significant period of time and [that] while confined, she was killed.”

[40] The trial judge did not suggest, nor would it have been appropriate for him to suggest, any other possible version of the events at the farm – for example, that Mr. Pritchard and another accomplice had carried out the (assumed) robbery and that one of them had shot Mrs. Skolos at the farm; that Mr. Pritchard and an accomplice had carried out the robbery and Mr. Pritchard had then shot both Mrs. Skolos and the accomplice; or that someone other than Mr. Pritchard had taken Mrs. Skolos to another location after the robbery and killed her without Mr. Pritchard’s knowledge or participation. There was, of course, no evidentiary foundation for such suggestions. Whether there was a foundation for the “substitution” theory put forward by the Crown gives rise to the third ground of appeal, to which I will return presently.

“Fabrication”

[41] The impugned version of events given by Mr. Pritchard was introduced both by the Crown (in the form of the statement made to R.C.M.P. on January 19, 2000) as part of its case at trial, and by Mr. Pritchard in his own testimony. The statement must therefore be approached in at least two ways – from the Crown’s point of view, on the assumption that it (or more precisely, the exculpatory aspects of it) was fabricated, as “post-offence conduct” from which an inference of culpability may be drawn; and from the appellant’s point of view, as something similar to alibi evidence. (The phrase “consciousness of guilt” was not used by Crown counsel or the trial judge in their addresses to the jury.) Unfortunately, the statement does not fit neatly into either of these categories and any analysis is complicated further by the fact that the statement contained various inculpatory, or potentially inculpatory, aspects – Mr. Pritchard’s acknowledgement that he had participated in the planning of a “drug rip” at the farm; that he had transported Mrs. Skolos’ body and buried it; that she had been shot in the head; and that he had taken the marijuana and sold it. It was implicit in the Crown’s case that it accepted these statements as admissions by Mr. Pritchard, even though the “fabrication” argument was made in terms of “the statement” as a whole.

[42] Few cases deal with the giving of allegedly false testimony at trial under the rubric of “post-offence conduct”, although in its most recent judgment on the subject, R. v. White and Côté [1998] 2 S.C.R. 72, the Supreme Court of Canada expressly contemplated that a false statement could qualify as evidence that “the accused was aware of having committed the crime in question and acted for the purpose of evading detection and prosecution.” (At para. 20.) The Court wrote that evidence of post-offence conduct is not “fundamentally different” from other kinds of circumstantial evidence, but that when such conduct is introduced to support an inference of consciousness of guilt, it is “highly ambiguous and susceptible to jury error”. In the words of Major J. for the Court:

It has been recognized, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt it is highly ambiguous and susceptible to jury error. As this court observed in Arcangioli …, the danger exists that a jury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt. In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation. Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpable act. [At para. 22; emphasis added.]

[43] The Court in White and Côté reviewed the principle, established in R. v. Arcangioli [1994] 1 S.C.R. 129, that where the evidence in question cannot logically support an inference of guilt with respect to one crime rather than another, the jury should be instructed to give the evidence no probative value. In Arcangioli, the accused was charged with aggravated assault in connection with a stabbing that occurred outside a bar. He admitted at trial that he had punched the victim but said he had no involvement in the stabbing and had fled the scene after seeing another person stab the victim in the back. Since the accused’s flight from the scene was equally explained by reference to punching the victim as with stabbing him, the Court held that the jury should have been given a “no probative value” instruction. However, the evidence could still be used for other purposes where appropriate – for example, to connect him to the scene of the crime or to a piece of evidence, or to undermine his credibility generally. (Para. 26.) The determination of whether post-offence conduct was related to the crime in question rather than to some culpable act was, the Court stated, generally to be left to the jury:

As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact-finding role. Consequently, a "no probative value" instruction like the one required in Arcangioli will be called for only in limited circumstances.

Such an instruction is most likely to be warranted where, as in Arcangioli itself, the accused has admitted to committing the actus reus of a criminal act but has denied a specific level of culpability for that act, or has denied committing some related offence arising from the same operative set of facts. In such cases, the participation of the accused in the culpable event is not at issue; the question to be decided is merely the extent or legal significance of that participation.… [At paras. 27-8.]

On the other hand, a “no probative value” instruction would not be required where the identity of the accused as a perpetrator, rather than the extent of his or her culpability, is in issue. In such cases, Major J. stated, “it will almost invariably fall to the jury to decide where the evidence of post-offence conduct can be attributed to one culpable act rather than another.” (Para. 29.)

[44] The case at bar does not involve an accused who admitted to committing the actus reus of the offence charged but denied a specific level of culpability, or denied “committing some related offence arising from the same operative set of facts.” Although Mr. Pritchard told the police and testified that he was involved in the planning of the robbery, he denied that he was present either at the robbery or at the time Mrs. Skolos was killed. His participation in the “culpable event” is very much at issue. The case is therefore closer to the situation where the accused “has denied any involvement in the facts underlying the charge at issue, and has sought to explain his or her actions by reference to some unrelated culpable act.” But the ‘action’ with which we are concerned is not conduct such as fleeing the scene of a crime or concealing evidence; rather, it is the alleged fabrication of evidence that the appellant also asserted on the stand. He has not sought to explain his impugned “conduct” (the alleged fabrication) by reference to some unrelated culpable act or otherwise. He does not “admit” that his story was fabricated and, indeed, it is his basic defence.

[45] The well-trod line of authorities dealing with fabrication in the context of “alibi” evidence promises to be somewhat more helpful. In R. v. Davison, DeRosie and MacArthur (1974) 20 C.C.C. (2d) 424 (Ont. C.A.) (lve. to app. refused [1974] S.C.R. viii), alibi evidence was advanced by three persons accused of armed robbery and conspiracy to commit armed robbery. The trial judge instructed the jury that if they did not believe the alibi, “then the fact that such an untruthful evidence was offered and rejected may reinforce your confidence in the reliability of the Crown’s evidence as to guilt because the accused or his witnesses were lying, and where credibility is the issue, this is a finding in that regard.” On appeal, the Court held that the trial judge had erred with respect to the effect of the rejection of the defence of alibi, if indeed it was rejected. The Court clearly stated the distinction between mere disbelief of evidence proffered by the defence, and proof of fabrication of evidence. In the words of Martin J.A.:

The fabrication of evidence or the subornation of perjury by a party in support of his case is a circumstance from which a consciousness of guilt may be inferred although it is not conclusive evidence of guilt: R. v. Watt (1905), 20 Cox. C.C. 852.

The inference to be drawn from the fabrication of a false alibi does not, however, arise from the mere rejection by the jury of the evidence with respect to alibi.

In my view the principle is correctly stated in Wigmore on Evidence, 3^rd ed. (1940), Vol. 2 at p. 126:

In particular, the failure to establish an alleged alibi is to be distinguished from the use of perjury or subornation in an unsuccessful attempt to prove the ‘alibi’; the latter admits of the usual broad inference from fraud, but the former amounts to nothing more than an inability to prove the specific fact of ‘alibi’.

Mere disbelief of the alibi advanced does not constitute proof that it was false in the sense of being fabricated. [At 428; emphasis added.]

[46] After noting that a similar principle applies to evidence capable of constituting corroboration, and to evidence going to lack of opportunity and lack of physical capacity to commit the offence (as in R. v. White [1956] S.C.R. 709), Martin J.A. cited R. v. Jones (1971) 3 C.C.C. (2d) 153 (Ont. C.A.) and Mawaz Kahn et al. v. The Queen [1966] 3 W.L.R. 1275 (J.C.P.C.), where Lord Hodson said at 1279:

What is found against the appellants is that the statements were concocted for the purpose of escaping from the consequences of their crime and if false are admissible to show guilt. As has been said: “The recourse to falsehood leads fairly to an inference of guilt.” [Emphasis added.]

Thus while mere misbelief of an alibi advanced by an accused could not be affirmative evidence of guilt, a resort to “perjury” or a concocted alibi could be used for that purpose.

[47] Martin J.A. then turned to the question of “proof” of the falsity of the alibi evidence. In his analysis:

The learned trial Judge did not, in my opinion, in the passages in the charge referred to above, make clear to the jury the distinction between proof that the alibi advanced is false in the sense of being concocted, and the mere rejection by the jury of the evidence of alibi because they believe that evidence to be untruthful, although not proved to be false. Proof of the falsity of the alibi may constitute affirmative evidence of guilt. The mere rejection of the evidence of alibi because it is disbelieved is not affirmative evidence of guilt and has only the effect of removing it from consideration as a barrier to the acceptance of the case for the prosecution. [At 430; emphasis added.]

He noted an American case, People v. Russell (1934) 266 N.Y. 147, in which the New York Court of Appeals had insisted upon “independent” evidence of fabrication before an accused could be ‘subjected’ to the suspicion “that his denial is false and the evidence produced by him fabricated.” (At 154.) If such independent evidence existed so that the alibi was proven to be a fabrication, the Court contemplated that it could be used generally in the case against him.

[48] Many Canadian courts have discussed and refined the basic principle enunciated in Davison: see, e.g., R. v. Mahoney (1979) 50 C.C.C. (2d) 380 (Ont. C.A.), aff’d. [1982] 1 S.C.R. 834; R. v. Levy (1991) 62 C.C.C. (3d) 97 (Ont. C.A.); R. v. Babinski (1991) 67 C.C.C. (3d) 187 (Ont. C.A.), aff’d. [1992] 3 S.C.R. 467; R. v. Carey (1996) 113 C.C.C. (3d) 74 (Que. C.A.); R. v. Michaud (1995) 98 C.C.C. (3d) 121 (N.B.C.A.), aff’d. [1996] 2 S.C.R. 458; R. v. To (1992) 16 B.C.A.C. 223; R. v. Witter (1996) 105 C.C.C. (3d) 44 (Ont. C.A.); R. v. Roy, 2000 BCCA 544; R. v. Simpson, 2002 BCCA 565; R. v. Baltovich (2004) 191 C.C.C. (3d) 289 (Ont. C.A.); and R. v. Tessier (1997) 113 C.C.C. (3d) 538 (B.C.C.A.).

[49] Tessier was heard by a panel of five judges of this court. They grappled with the question, inter alia, of what kind of evidence is necessary to constitute “proof” of fabrication – in that case, of an alibi. The accused’s girlfriend had told police on the day after the murder that he had spent the night with her, and there was no inconsistency between that statement and her testimony at trial. The trial judge instructed the jury that, “ … if you decide that the alibi is false and was put forward to deceive you, that would allow you to draw the inference that Ron Tessier is guilty. But, by itself, a false alibi is not conclusive evidence of guilt.” (At para. 2; emphasis added.) The majority of the Court (Rowles, Ryan and Southin JJ.A.) held that the instruction was defective, but all gave different reasons. Rowles J.A. began by noting the circular reasoning of using a disbelieved alibi, without more, as positive evidence against an accused. In her words:

While an alibi is a denial that the accused was present at the scene of the crime, the alibi, if disbelieved, is not evidence to the contrary. "[T]he fact that a witness is disbelieved does not prove the opposite of what he asserted.": per Gibb J. in Steinberg v. Comr. of Taxation (Cwth) (1875), 134 C.L.R. 640 at 695. Or as Scrutton L.J. observed in Hobbs v. Tinling, [1929] 2 K.B. 1 at 21:

If by cross-examination to credit you prove that a man's oath cannot be relied on, and he has sworn that he did not go to Rome on May 1, you do not, therefore, prove that he did go to Rome on May 1; there is simply no evidence on the subject.

It is only by circular reasoning that the identification evidence in this case can be said to support an inference of fabrication. In my respectful view, the trier of fact cannot be asked to prefer the evidence of the eyewitness to that of the accused, and then be asked to use its disbelief of the accused's evidence as a foundation to support an inference that his alibi evidence was concocted to avoid liability for the crime.

The distinction made in the jurisprudence between an alibi which is disbelieved and one which is fabricated is concerned with whether an inference of guilt may be drawn from the evidence. A disbelieved alibi is not "evidence" and disbelief in the alibi evidence cannot provide, through circular reasoning, the foundation for an inference of guilt.

In the present case, while the evidence to which respondent's counsel referred was relevant to a jury determination of whether to reject the alibi, the evidence was not probative of whether the appellant had concocted or fabricated an alibi. [At paras. 49-52; emphasis added.]

[50] Rowles J.A. concluded at para. 57 that because “there was no independent or extrinsic evidence from which an inference could be drawn that the alibi was fabricated”, the trial judge’s instruction had been inadequate. This instruction, she noted, was very similar to that given by the trial judge in Michaud, supra, that, “… if you determine that the alibi is false, and it was put forward to deceive you, this allows you to draw the inference that Félix Michaud is guilty.” (This charge is very similar to the ‘standard’ instruction provided at the time for trial judges by G. Ferguson and J. Bouck, Canadian Criminal Jury Instructions, (3^rd ed., 1994) §8.04.1 to 8.04.4, and to that given in the case at bar.) The Supreme Court of Canada, per Sopinka J., said in Michaud at 459 that it found no error in this charge with respect to alibi evidence. Rowles J.A. suggested at para. 42 of Tessier that the difference between it and Michaud was that in the latter, the accused’s common-law wife had given inconsistent statements from which it might be inferred her alibi evidence at trial had been concocted. In Tessier, by contrast, the evidence relied on by the Crown was not, in the opinion of Rowles J.A., “probative of whether the appellant had concocted or fabricated an alibi”, although it was relevant to whether or not to reject the alibi. (Para. 52.)

[51] Ryan J.A., concurring with Rowles J.A. in Tessier, stated her view thus:

I agree with the Chief Justice that there is really no difference between a disbelieved alibi and an alibi that is proved false. It does not matter whether the falsity of the alibi is demonstrated by the strength of the Crown's case or by independent evidence, the result is the same, the alibi is untrue. A verdict of guilt in an alibi case means that the alibi has been rejected as untrue. But, with respect, that does not resolve the issue we must consider in this case.

It seems to me that the reason we look for independent evidence that the accused fabricated his story is two-fold. In the first place as my colleague Rowles J.A. has pointed out the reasoning is circular if there is no independent proof: "The weight of the Crown's evidence admits of no doubt. Therefore the accused is not telling the truth. The accused is not telling the truth. Therefore the Crown's case admits of no doubt." In the second place, because the evidence that the accused has fabricated a story can be used as part of the Crown's case against him, care must be taken in finding that the alibi was concocted. There must be a solid evidentiary base of fabrication. It is not unreasonable to demand that this evidence be found independently of the other evidence of the proof of the crime.

If evidence of fabrication need be found only in the evidence which proves the offence then in every case where the accused testifies (alibi or not) there would be no reason not to permit a jury to use their finding that the accused has been untruthful as part of the Crown's case against him. That does not accord with any articulation of the law that I know of. [At paras. 67-9; emphasis added.]

[52] Chief Justice McEachern, dissenting along with Hinds J.A., found that the case law with respect to alibi evidence was overly complicated and difficult for juries to understand. He called for the simplification of the law relating to alibis and consciousness of guilt such that juries would be instructed, where the alibi was disbelieved, to put it aside and then to consider whether on all the evidence apart from the alibi, the Crown had proven its case beyond a reasonable doubt. The Chief Justice noted that at the time, there was no governing authority from the Supreme Court of Canada – a need which was apparently supplied by R. v. Hibbert [2002] 2 SCR 445, 2002 SCC 39.

[53] In Hibbert, the Supreme Court confirmed the broad principle that in the absence of evidence of concoction, i.e., deliberate fabrication, an alibi that is disbelieved has no evidentiary value, while on the other hand, a concocted alibi may support an inference of consciousness of guilt. Thus the Court agreed that in the absence of any “evidence that the accused was implicated in putting forward a fabricated alibi”, the instruction given to the jury (again, the then ‘standard’ instruction also given in Tessier and Michaud) was erroneous. Arbour J. for the majority reasoned:

Michaud should not be taken as a departure from the well-established position expressed and followed by the courts of appeal in the cases cited above….

The Crown concedes that at trial it did not put forward a suggestion that the alibi had been concocted. It also concedes, as it did before the Court of Appeal, that the trial judge's instructions were in error in the absence of evidence that the accused was implicated in putting forward a fabricated alibi.

These concessions were appropriate. A defence of alibi may be disbelieved, particularly in the face of an overwhelming case for the prosecution, merely on the basis that the witnesses who testified in support of the alibi were imprecise or inconclusive, that their recollection was unreliable, or that they simply were mistaken. In such cases their evidence must be discarded, without more.

Even if an alibi is advanced by the accused himself and is rejected, the finding that the alibi is untrue cannot serve to corroborate or complement the case for the prosecution, let alone permit an inference that the accused is guilty.

If the alibi witnesses were found to be deliberately untruthful, their attempt at deceiving the jury could not be visited upon the accused unless he or she participated in the deceit. If, on the other hand, there was evidence that the accused attempted to put forward a fabricated defence, that effort, akin to an effort to bribe or threaten a witness or a juror, could be tendered as evidence of consciousness of guilt.

In this case, the Crown concedes that there was no evidence of concoction. … [At paras. 59-64; emphasis added.]

[54] However, the Court expressly declined to decide whether “independent” evidence of concoction was necessary; again in the words of Arbour J.:

… It is unnecessary in this case to determine the nature and scope of evidence necessary to show concoction so as to permit the instructions inviting the inference of consciousness of guilt. Suffice it to say that the cases have consistently pointed out that there must be evidence linking the accused to fabrication and that such evidence cannot emerge from a mere rejection of the alibi tendered. Many have spoken of the need for independent evidence of fabrication above and beyond a finding that the alibi is false. (See Ryan J.A., in Tessier, supra, at p. 556.) [At para. 59; emphasis added.]

She then summarized the law with respect to a rejected alibi defence as follows:

· In the absence of evidence of concoction (deliberate fabrication) an alibi that is disbelieved has no evidentiary value.

· A disbelieved alibi is insufficient to support an inference of concoction or deliberate fabrication. There must be other evidence from which a reasonable jury could conclude that the alibi was deliberately fabricated and that the accused was involved in that attempt to mislead the jury. It is the attempt to deceive, and not the failed alibi, that supports an inference of consciousness of guilt.

· In appropriate cases, for instance if there were multiple accused, the jury should be instructed that the fabricated alibi may be used to place the accused at the scene of the crime, but may fall short of directly implicating him in its commission.

· When there is evidence that an alibi was fabricated, at the instigation or with the knowledge and approval of the accused, that evidence may be used by the jury to support an inference of consciousness of guilt.

· In cases where such an inference is available, the jury should be instructed that it may, not must, be drawn.

· A fabricated alibi is not conclusive evidence of guilt. [At para. 67; emphasis added.]

[55] Notwithstanding the Supreme Court’s reluctance to determine the “nature and scope” of evidence necessary to show concoction, the Ontario Court of Appeal has on several occasions taken a position similar to that expressed by Rowles J.A. in Tessier. It has equated “independent” evidence in this context with evidence that is “independent of the evidence tending to show the falsity of the statements” (per Charron J.A., as she then was, for the Court in R. v. Reynolds (2003) 172 C.C.C. (3d) 559 at para. 22); or as evidence “apart from evidence which contradicts or discredits the version of events advanced by the accused” (per Doherty J.A. in R. v. Coutts (1998) 126 C.C.C. (3d) 545 at para. 15, lve. to app. refused (1999) 239 N.R. 193 n.). The latter comment was also applied in R. v. Blazeiko, (2000) 145 C.C.C. (3d) 557 (Ont. C.A.), where the Court stated:

In the light of the rationale underpinning Coutts, the trial judge’s “deliberately false” instruction amounted to reversible error. A false explanation, even a deliberately false explanation, cannot, without extrinsic evidence of concoction or fabrication, provide circumstantial evidence of an accused’s guilt. The jury was never told that to rely on a deliberately false explanation as a piece of circumstantial evidence proving guilt, there had to be extrinsic or independent evidence that the explanation was concocted. Nor was the jury directed to any piece of extrinsic evidence from which they could conclude that the accused’s testimony was concocted. [At para. 7; emphasis added.]

The Court suggested that the trial judge “could have given an after-the-fact conduct instruction” in connection with the testimony of a witness that the accused had asked her to lie for him. Unfortunately, the Court did not elaborate on the contents of such an instruction. In this province, the ‘standard’ charge regarding post-offence conduct would include the instruction that it is simply a “piece of circumstantial evidence for you to weigh”, that it should not be considered “in a vacuum but should be assessed like all other circumstantial evidence …”, and that even if the conduct was motivated by a feeling of guilt, that feeling “might be attributable to some other criminal act apart from that set out in the indictment.” (G. Ferguson et al., Canadian Criminal Jury Instructions (4^th ed., (looseleaf) 2005) at §4.21.1 and §4.21.9.) As will be seen below, the trial judge in the case at bar gave similar instructions.

[56] The cases are agreed that if the trial judge is satisfied that there is evidence that could support an inference of concoction or fabrication, it is for the jury to decide whether it in fact does so. As well, they appear to support the proposition that where there is such evidence, it is not an error to instruct the jury that if they determine the alibi was not only untrue but was put forward to mislead them, they may draw an inference in support of a conviction. This is so even though logically, an alibi that is “fabricated” and “intended to deceive” (which I suggest mean the same thing) is no more probative of guilt than one that is disbelieved or “false”. (Here I set aside those instances in which a witness may be mistaken or simply unreliable.) In both instances, there may be reasons other than ‘consciousness of guilt’ why the false evidence has been advanced. As with evidence of flight or concealment, the accused may have been under pressure from the police to say something, or may be ‘guilty’ of some other culpable act: see White and Coté, supra, at para. 22, quoted earlier. Yet the jury is permitted to draw the “usual broad inference from fraud” (from Wigmore, quoted by Martin J.A. in Davis, at 428) going to guilt on the substantive charge if they conclude that the alibi is not only not to be believed but that it was “fabricated”. To reach that conclusion, they must, if cases such as Reynolds and Coutts are correct, have evidence independent of the evidence which proves the falsity of the alibi – in most cases, a subtle intellectual exercise indeed.

The Trial Judge’s Charge

[57] The trial judge in the case at bar noted in his charge that counsel had referred to the evidence in two distinct categories – evidence that was available to the police prior to January 19, 2000; and on the other hand, the statement of that date together with the search for the gravesite at or near Shelley Road, the R.C.M.P. investigation that followed, the disposal of Mr. Pritchard’s two handguns by Mr. Menton, and Mr. Pritchard’s statements made under hypnosis. The trial judge told the jury that the second category of evidence was placed before them “because the Crown submits that you can conclude from it that Mr. Pritchard’s version of events in his statement to the R.C.M.P., and his evidence dealing with the location of Mrs. Skolos’ body is false and was fabricated by him to conceal his guilt.” The judge instructed the jury to apply the following rules of law when considering whether Mr. Pritchard had “fabricated” his evidence:

1. If you merely disbelieve Mr. Pritchard’s January 19th, 2000 version of events and his evidence about the location of Mrs. Skolos’ body including the memory that he disclosed, under hypnosis, you may not draw any further inferences from it. An exculpatory story that is disbelieved has no evidentiary value.

2. Mere disbelief cannot be used to infer that the January 19th, 2000 statement was fabricated or that the evidence about the location of the body was fabricated. There are many reasons that people tell false stories when accused of crimes. You must be satisfied that he fabricated his evidence in these areas to mislead you, not simply that you do not believe it. You should take into account any alternative explanations for Mr. Pritchard’s behaviour.

3. When considering fabrication, you should consider any evidence pointing to fabrication leading up to and including the January 19th, 2000 statement, and all of the evidence surrounding the attempts to locate Mrs. Skolos’ body, including evidence of other inconsistent versions of the same events given at different times and the evidence of others who Mr. Pritchard said committed the crime. If you conclude that Mr. Pritchard fabricated his evidence for the purpose of misleading you, then you may, not must, draw the inference that the reason he is doing so is because he killed Mrs. Skolos. Such an inference is merely some evidence of guilt, it is not conclusive evidence of guilt. [Emphasis added.]

[58] The evidence cited by the trial judge as possibly bearing on the issue of fabrication consisted of Mr. Pritchard’s earlier statements and any inconsistencies between them and the January 2000 statement; Ms. Hardy’s evidence of her conversations with him; the evidence of those persons identified by Mr. Pritchard as having committed the crime – Bill Wall and James Ens – and of Abe Wall; and the evidence relating to the search for Mrs. Skolos’ grave. The trial judge then continued:

You must appreciate the solemn significance of your treatment of those two bodies of evidence about Mr. Pritchard’s conduct after November 24, 1995. It would be dangerous to reach a conclusion of guilt from one or more of those bodies of evidence alone, without a cogent body of other evidence which points to guilt. The inference that the accused is concealing his guilt should, if reached, be given a subordinate supporting role in the process of reaching a decision. It would be dangerous to assign it a leading role.

Should you find that Mr. Pritchard fabricated his evidence to mislead you, that conduct can only assist you to reach the conclusion that he killed Mrs. Skolos. It does not assist in deciding whether it was first or second degree murder or manslaughter. [Emphasis added.]

[59] Although the point has been left open by the Supreme Court of Canada, the trend of the law in Canada is obviously to require, or to instruct the jury to require, “independent” or “extraneous” evidence or “proof” of concoction on the accused’s part – i.e., evidence separate from the evidence that casts doubt on the truth of the alibi itself – before an inference of guilt may be drawn from a disbelieved alibi. Although one might argue that the fruitlessness of the search for the grave is “independent” evidence, and although we have seen that an inconsistency between a witness’s evidence at trial and an earlier statement has on occasion been regarded as evidence of fabrication, the evidence cited by the trial judge in this case was not in my view “independent” in the sense contemplated by the Ontario cases mentioned above. (The only examples of such evidence I can think of would be an attempt at suborning perjury by, or attempting to bribe, a witness.) The evidence cited by the trial judge does, if considered as evidence of fabrication, carry the risk of circularity of reasoning that underlies the principle established by the Davison line of cases. The jury was given to understand that if they concluded Mr. Pritchard’s evidence about Bill Wall’s guilt and his own non-involvement in the actual robbery was “fabricated”, they could use that conclusion in support of an inference that Mr. Pritchard was guilty. No “extraneous” evidence was required, the only condition being that the jury had to be satisfied Mr. Pritchard had “fabricated” his evidence in order to mislead them. (Taken at face value this seems to be tautological: surely the only purpose of ‘fabricating’ evidence can be to ‘mislead’.) The jury was, however, warned that there are many reasons why accused persons tell false stories and that a conviction should not be based on this evidence alone.

[60] Based on the authorities, the better view would seem to be that the trial judge’s instruction in this case was erroneous in that it failed to require independent or extraneous proof before the inference could be drawn. The question then arises whether the misdirection resulted in a miscarriage of justice. I will return to this question after dealing with the other grounds of appeal.

Inferences and Speculation

[61] I turn next, however, to the appellant’s contention that the trial judge erred in failing to instruct the jury that they could not draw the inferences that Mr. Pritchard killed Mrs. Skolos because she refused to reveal the stash site, tried to escape or recognized him, or that Mr. Pritchard confined or dominated Mrs. Skolos to prevent her escape, to force her to reveal the stash site, or to make her assist in carrying the marijuana. I begin by noting that the trial judge instructed the jury, in standard terms, about the caution that must be taken in drawing inferences from circumstantial evidence, and of course on the possibilities for error inherent in such evidence. Then, in connection with his exposition of the required elements for second and first degree murder, he reviewed the evidence relating to each.

[62] For example, in connection with “element 2” of the charge on second degree murder – the requirement that the person who killed Mrs. Skolos committed an unlawful act that caused her death – he reviewed the evidence relating to the theft of the marijuana from the Skolos’ farm, including the delivery of a shipment to the farm on November 21 in three trunks; Mr. Pritchard’s evidence that he transported the marijuana to Prince George early on the morning of November 24; Ms. McCarthy’s evidence as to Mr. Pritchard’s arrival in Prince George at about 4:00 a.m. with the trunks; Mr. Pritchard’s thumbprint on the plastic Safeway bag found inside one of the trunks; the fact that the cut edges of plastic sheeting found in the trunks matched plastic sheeting found in the shed on the Skolos’ farm; and the timing of Mrs. Skolos’ disappearance. The jury was warned that in order to find that the element was proven, they had to be satisfied on the basis of the circumstantial evidence surrounding Mrs. Skolos’ disappearance from the farm “that the only reasonable inference to be drawn from the proven facts is that she was killed by a person in the course of the theft of the marijuana.”

[63] In connection with “element 4” – that Mr. Pritchard was the person who killed Mrs. Skolos – the trial judge reviewed at great length Mr. Pritchard’s statement of January 19, 2000, as well as other statements he had made to the R.C.M.P. and Ms. Hardy; the testimony of Mr. Wall and James Ens; the inferences that could be drawn from Mr. Pritchard’s “recent possession” of the marijuana; the evidence surrounding the “fabrication” argument which I have already discussed above; and evidence relating to Mr. Pritchard’s handguns and the various pickup trucks that figured at trial. All of this was described in a balanced and fair way.

[64] The appellant contends, however, that the trial judge should have instructed the jury that it was not open to them to infer from the evidence that Mrs. Skolos had been killed, as the Crown suggested, intentionally in the course of being confined during the robbery of the marijuana. Counsel points in particular to the following passage from the Crown’s submissions to the jury:

You can also infer from there the fact and that is the fact that yes, in order to go out and get the marijuana and that there would have to be a dominion [sic] exercised over Mrs. Skolos. They would have to go into her house, get her to get dressed up, whatever is necessary in order to make the journey on November the 24^th in the early morning hours in the snow. You would have to keep her a virtual captive as you took her out there to make sure she doesn’t run from you or anything like that. You would want to, seeing that they didn’t get to use the ATV, to enlist her services to carry the marijuana back with you ... You can slide it down there, she can help carry, you can help carry. Otherwise you would have to make several trips on foot in order to do that because there is forest and bush there. So, you can say, infer that she was unlawfully detained at that time and should have no trouble finding Mr. Pritchard guilty on that original case of first degree murder. [Emphasis added.]

[65] In the appellant’s submission, the Crown’s “theories” were only guesses about the circumstances that led to Mrs. Skolos’ death and were simply not available to the jury, as a matter of law, to draw from the circumstantial evidence before them. In this regard, the appellant notes the comments of Doherty J.A. in United States of America v. Huynh (2005) 200 C.C.C. (3d) 305 (Ont. C.A.), which dealt with the extradition of a person alleged to have conspired to launder proceeds of drug trafficking. The Crown argued that in light of the frequent transfers of large amounts of cash from the United States to Canada, the manner of concealment of the cash, and various coded conversations between the alleged participants, it could be inferred that the appellant was guilty of the offence. However, there was no evidence as to the source of the funds involved, or of any connection with drug trafficking. The Court of Appeal overturned the conviction, reasoning as follows:

The material identified by the respondent certainly permits the inference that the cash was the proceeds of some illicit activity. Drug trafficking comes readily to mind as one possible source. The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess. The gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance can only be bridged by evidence. The trier of fact will assess that evidence in the light of common sense and human experience, but neither is a substitute for evidence. The requesting state has not offered any evidence as to the source of the funds even though its material indicates that one of the parties to this conspiracy is cooperating with the police. Despite the effective argument of counsel for the respondent, I do not think there is anything in the material that would reasonably permit a trier of fact to infer that the cash was the proceeds of drug trafficking and not some other illicit activity. [At para. 7; emphasis added.]

[66] As well, the appellant relied heavily on this court’s decision in R. v. MacKay (1992) 16 C.R. (4^th) 351 (lve. to app. refused (1993) 150 N.R. 393 n.). The appellant in that case was convicted of the first degree murder of a woman who disappeared while jogging one morning in Saanich. Patches of blood were found on the road, with a pair of broken earmuffs and an expended .12 gauge shotgun shell nearby. The police searched the appellant’s pickup truck and found attached to the undercarriage a pompom similar to that on the deceased woman’s toque. Her body was never found. At trial, the appellant gave evidence denying any complicity. There was circumstantial evidence that he had been out early on the morning in question; that he was prejudiced against black persons (the deceased was black); that after the victim’s disappearance, he was trying to “get rid of” his truck; and that he had made certain statements to the effect that the police would never find the body.

[67] On the appeal, the Court held that a conviction for first degree murder could not be supported on this evidence, although second degree murder was sustainable. Reference was made to various older authorities defining the distinction between inference and conjecture or speculation, in particular Wakelin v. London and South Western Railway Co. (1886) L.R. 12 App. Cas. 41 (H.L.) and Caswell v. Powell Duffryn Associated Collieries Ltd. [1940] A.C. 152 (H.L.). The Court also noted the special caution traditionally given to juries in cases of purely circumstantial evidence, as set forth in Hodge’s Case (1838) 2 Lewin 227, 168 E.R. 1136. (Now cf. R. v. Cooper [1978] 1 S.C.R. 860). However, since MacKay was concerned with whether first degree murder had been proven, and “there can usually be more than one rational conclusion about the state of a person’s mind”, the Court concluded that the rule in Hodge’s Case did not apply to the issue at hand. Instead, the Court said:

… the proper test to apply in reviewing the verdict of the jury is simply whether the verdict is one which a properly instructed jury could reasonably reach. This, of course, requires consideration of whether, in the circumstances of this case, there was evidence from which the jury could reasonably infer that the appellant deliberately shot and killed the deceased after an appropriate measure of planning. One of the real problems for the Crown in this case is that there was no evidence that the appellant had access to a gun. Without evidence that he had a gun, it cannot be inferred beyond reasonable doubt that he shot the deceased. The threshold question, before getting to planning and deliberation, then becomes whether a jury could reasonably conclude that the Appellant shot and killed the deceased by inference from the evidence. [At para. 90.]

[68] After reviewing the evidence, the Court in MacKay concluded that while there was evidence from which the jury might infer the appellant had run down the deceased with his truck, it could not be said the totality of the evidence supported an inference he had shot her:

While we think it was reasonable for the jury to infer that the appellant did run the deceased down with his truck at some stage in this tragedy, we cannot agree that the totality of the evidence supports an inference (and it was therefore unreasonable to infer), that she was shot, if at all, by the appellant. There is no evidence putting a gun in his hands at any material time, and there is no evidence she was ever shot. Neither of these facts can reasonably and properly be inferred from either the presence of a spent cartridge at the location of the bloodstains on the road or from all of the combined evidence adduced at the trial. Even the presence of similar expended shotgun cartridges in his home at a later date would not support such an inference. The lack of evidence of similarity to the cartridge found near the bloodstains makes the inference even more untenable. In short, the argument that the appellant shot and killed the deceased is speculation and conjecture. [At 109.]

and further:

Specific mental ingredients are required for first degree murder. The absence of any evidence about what transpired between these two people that morning makes inferences about specific mental states impossible. Possibilities range all the way from deliberately running her down, and shooting her in execution style as the Crown contends, to a conversation, a struggle, and killing with or without a shooting, and then a running down or vice versa. While we have concluded that other rational scenarios do not automatically require a finding against first degree murder, other possibilities are useful in demonstrating the unreasonableness of inferring that the appellant planned the deliberate murder of the deceased. [At para. 112; emphasis added.]

and:

It is possible to construct other scenarios, but in each case the result is the same. The proven facts, while sufficient to establish murder, are insufficient to prove beyond reasonable doubt that the appellant planned and deliberately caused the death of the deceased. [At para. 117; emphasis added.]

[69] Although defence counsel in the instant case acknowledges that MacKay was concerned with mens rea, he contends that similar reasoning applies to the proof of the actus reus of confinement and the killing of Mrs. Skolos in the course of a robbery. In Mr. Gibbs’ submission, the evidence was simply too meagre to support a finding that Mrs. Skolos was confined, or confined for something more than a “momentary” period, or to support a conclusion that she was murdered (as opposed to killed accidentally) – i.e., that she was killed by someone who meant to cause her death or meant to cause bodily harm that he or she knew was likely to cause her death and was reckless about whether death ensued.

[70] As the Crown contends, however, there was considerable evidence (including admissions from the appellant) that a “drug rip” had occurred, that it was carried out by a person or persons using guns and making armed threats, and that Mrs. Skolos was killed (according to Mr. Pritchard’s testimony, by a bullet or bullets to the head with a small calibre handgun). There were also Mr. Pritchard’s own admissions that he had been involved in the planning of the robbery and in the burial of Mrs. Skolos’ body. In my view, this evidence was capable of providing the basis for the jury’s inferences that Mrs. Skolos had been killed in the course of the robbery of the marijuana and that Mr. Pritchard in fact was the killer. As in MacKay, the actus reus of murder could be inferred notwithstanding the fact there was no body and therefore no forensic evidence as to the cause of death; and in this instance, it was not necessary to prove planning and deliberation as well.

[71] I am fortified in this conclusion by reference to the Supreme Court of Canada’s decision in R. v. Charemski [1998] 1 S.C.R. 679, also a case of murder that rested almost completely on circumstantial evidence. There was proof that the accused had had a motive to kill his wife, that he had been in her apartment building on the night she died and had telephoned her, that he could not account for his time at the approximate time of her death, and that he had had what Bastarache J. referred to as “premature knowledge” of the manner of her death. Although the evidence was inconclusive concerning the cause of her death, she was found in scalding water in her bath in a position “from which a jury could have inferred that the deceased was in fact the victim of foul play.” (At para. 10.) The trial judge had directed a verdict of acquittal because of the absence of evidence of causation, but the Supreme Court of Canada agreed with the Ontario Court of Appeal that the Crown’s appeal should be allowed. Bastarache J. for the majority referred to R. v. Monteleone [1987] 2 S.C.R. 154, in which McIntyre J. had observed that “The courts have frequently recognized the fact that the corpus delicti, that is, the act which constitutes the crime, in this case the setting of the fire, may be proved by circumstantial evidence … “. (At 164.) Bastarache J. in Charemski continued:

Just as was the case in Monteleone, supra, “evidence of other matters – motive, opportunity, financial difficulty and possibility of gain – [could] be considered as evidence going to prove the crime”, and it was not necessary for the Crown to adduce direct evidence of the corpus delicti. Indeed, I would suggest that there is in fact more evidence in this case than was available in Monteleone. There, there was no evidence whatsoever as to the cause of the fire; here, we have the deceased in the bathtub with her head at the faucet end. There are hot water burns on the skin, but not on the lungs. This constitutes at least some – albeit not compelling evidence – of foul play. [At para. 11.]

In addition, Bastarache J. emphasized the finding as to whether guilt has been proven according to the formulation in Hodge’s Case in cases of circumstantial evidence, is a matter for the jury. In his words:

… the trial judge should have directed the jury according to the requirements that a finding of guilt could only be made where there was no other rational explanation for the circumstantial evidence but that the defendant committed the crime …. Making that finding is essentially a factual matter arising from an evaluation of the evidence. That assessment is properly left to the jury. Judges should not be hasty to encroach on that time-honoured function, particularly where well-established principles articulated in this Court provide clear guidance on the circumstances in which a question may be withheld from the jury. [At para. 13.]

[72] I would dismiss this ground of appeal.

The “Substitution” Theory

[73] This brings us to the appellant’s contention that the so-called “substitution theory” which was put in passing by the Crown and referred to in passing by the trial judge in his charge, also invited the jury to make an inference that had no foundation in the evidence. For convenience, I set out here the trial judge’s comments to the jury on this point:

Mr. Fulmer made a submission, which he said he did not urge heavily, that Mr. Pritchard simply substituted Bill Wall for himself in his version of events. He said you might find that Mr. Pritchard’s version of Mr. Wall’s acts described, with some exculpatory modification, what Mr. Pritchard did. This inference could only be made if you find that there is a proper foundation for it in the evidence of the events leading up to the January 19th, 2000 statement, or in the manner in which Mr. Pritchard described the events. You should be very cautious about drawing such an inference because Mr. Pritchard was not confronted with this theory when he was cross-examined. Accordingly, you do not know what Mr. Pritchard’s explanation would be.

[74] I will say at the outset that although Mr. Pritchard was not confronted expressly with this theory when he was cross-examined, this is not of concern to my mind, given the pre-eminent role that Mr. Pritchard’s statement of January 19, 2000 and his oral testimony played at trial. It cannot have been lost on the appellant and his counsel that the Crown’s case was that he, Mr. Pritchard, had carried out the robbery and killed Mrs. Skolos in the course of it. Nor could it have been lost on anyone that Mr. Pritchard’s position was that Mr. Wall, not Mr. Pritchard, had carried out the robbery, and in so doing had confined and killed her.

[75] The Crown emphasizes that, as is trite law, a jury is entitled to accept or reject all or part of a witness’s evidence. Accordingly, the Crown says, the jury could accept the appellant’s statement to the police in 1996 that Bill Wall had not participated in the robbery and if he had, Mr. Pritchard would have been quite willing to “rat him out.” As well, there was Mr. Pritchard’s statement to the police in 1996 that if he had done the “drug rip”, he would not have brought anyone else in on it. The Crown contends that if this evidence were accepted, the jury might well have treated the January 2000 statement and Mr. Pritchard’s testimony at trial as a first-hand account rather than something related to him by Bill Wall. I agree that it was open to the jury to give credence to the earlier statements or parts of them, even though they were all later repudiated by Mr. Pritchard.

[76] The real question in my opinion, however, is whether the “substitution” theory was effectively an invitation to the jury to speculate improperly as a means of circumventing weaknesses in the Crown’s evidence concerning the identity of Mrs. Skolos’ killer. In this regard, defence counsel referred us to R. v. Walker (1994) 90 C.C.C. (3d) 144 (Ont. C.A.), where the accused was convicted of manslaughter of a woman whose body was found in such a state of decomposition that the cause of death could not be determined. Crown counsel nevertheless put to the jury various lurid suggestions as to how she had died, none of which had any evidentiary foundation. The Court, per Finlayson J.A., said that the trial judge “should have made clear to the jury that the suggested causes of death were speculative” and that this failure had significantly prejudiced the appellant. (At 154.) Also in Walker, the Crown called one “Able” as a witness and then proceeded to attack his testimony and to call him a “liar”. This also attracted the disapproval of the Court. Finlayson J.A. stated:

I respectfully disagree with the literal meaning of this proposition. I do not accept that the Crown must vouch for the veracity of every statement uttered by every witness that it calls and does not impeach. There are many cases, such as the one on appeal, where the Crown is compelled to call disreputable persons as witnesses because they are the only possible witnesses to whatever it is that occurred. Crown counsel is entitled to invite the jury to be selective as to what part or parts of the evidence of any witness they should choose to believe. I do agree, however, with appellant's counsel that Crown counsel is not entitled to call his own witness a liar and invite the jury to believe the very opposite of what the witness said. Authority for this is to be found in R. v. Chapman (1973), 57 Cr. App. R. 511, where Roskill L.J. said at p. 521:

But a denial in the witness-box which is untruthful or otherwise incapable of belief is not positive proof of anything. It leads only to the rejection of the evidence given, which then has to be treated as if it had not been given. Mere rejection of evidence is not of itself affirmative or confirmatory proof of the truth of other evidence to the contrary.

* * *

In the case on appeal, however, Crown counsel not only repudiated his own witness but he invited the jury to accept, as factual, the converse of what the witness had said. This is an acceptable posture where there is affirmative evidence contradicting the witness in question. The jury can be invited to reject the evidence of witness A and accept the evidence of witness B. But here, there was no witness B. It was most improper for the Crown to urge the jury to reject Able's evidence because he was lying and, at the same time, ask it to accept as factual a sequence of events which had no foundation in the evidence. [At. pp. 156-7; emphasis added.]

[77] In my view, the Crown’s tactics in this case are not comparable to those committed in Walker. I would not describe the inference which the jury was asked to draw to the effect that Mr. Pritchard’s January 2000 statement described his own actions rather than those of Mr. Wall, as “speculative” or lacking a foundation in the evidence. Obviously, the Crown’s position was that Mr. Pritchard was the killer. The Crown’s case was largely circumstantial and of necessity required the drawing of some inferences, but Mr. Pritchard supplied direct evidence on some important points. In my view, the jury was not asked to draw inferences except from “proven facts which logically support the specific inference or inferences required to establish the appellant’s guilt.” (MacKay, supra, at para. 70.) Nor was this a case in which the Crown repudiated its own witness. Rather, the Crown adduced into evidence various statements, including admissions, made by Mr. Pritchard and clearly put forward an argument of fabrication. The accused then testified on his own behalf. The Crown submitted as an “alternate” theory that parts of Mr. Pritchard’s statement might be true, but the main theme was always that Mr. Pritchard had carried out the killing of Mrs. Skolos in the course of a robbery.

[78] Furthermore, I would have thought that the weaknesses of the “substitution theory” were obvious – that although Mr. Pritchard said Bill Wall had shot Mrs. Skolos a number of times at the farm, there was no blood or other forensic evidence of a killing at the farm; and that while Mr. Pritchard had said he could lead the R.C.M.P. to Mrs. Skolos’ body, he failed to do so. It seems to me that if the jury adopted the “substitution theory” as true, they could only have done so in respect of certain specific aspects of the impugned statement and testimony. For example, as Mr. Shaw suggested in this court, they may have inferred from Mr. Pritchard’s very exact description of how Mrs. Skolos had died, that he had at least been present. Evidence of his possession and use of a .22 calibre gun and his attempts to get rid of such a weapon might then have led the jury to infer that his gun had been used in the killing. But again, the jury were entitled to believe all, none, or only part of the evidence of Mr. Pritchard or any other witness.

[79] The “substitution theory” may have been a rather a blunt instrument with which to approach Mr. Pritchard’s statement of January 2000, but I conclude that the questions left open by the statement and testimony, coupled with the trial judge’s warnings concerning the necessity for a proper foundation for the theory in the evidence, overcame any prejudicial effect that the argument may have had. I would also dismiss this ground of appeal.

Confinement

[80] The final ground of appeal argued before us was that the trial judge erred by incorrectly instructing the jury on the meaning of “confinement” in s. 279 of the Criminal Code. The trial judge’s instruction on this point was as follows:

As I said to you earlier, the words “forcible confinement” in Section 231(5)(e) refer to the offence of unlawful confinement.

The offence of unlawful confinement is created by section 279 of the Criminal Code:

279(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of ... an indictable offence …

After discussing the elements necessary for a finding of confinement, the trial judge continued:

If you find that the restraint on Mrs. Skolos’ movements was only momentary and took place only as an integral part of the robbery, then the unlawful confinement would not be enough to raise second degree murder to first degree murder. If the restraint is more than momentary and was characterized by the domination of Mrs. Skolos by Mr. Pritchard, then the unlawful confinement is sufficient to raise second degree murder to first degree murder.

[81] During their deliberations, the jury sought clarification from the trial judge and asked, “In discussions of ‘unlawful confinement’ we would like clarification … in regards to ’only momentary’.” The trial judge responded:

“Robbery” is defined in Section 343 of the Criminal Code as follows:

Every one commits robbery who:

(a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;

(b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;

(d) steals from any person while armed with an offensive weapon or imitation thereof.

As you can see, robbery involves an act of violence or threat of violence toward the person from whom something is stolen. Some robberies involve only a momentary restriction on the movements of the person being robbed. The taking of a wallet at knifepoint would be an example if the matter was over in a matter of seconds.

Momentary is defined by the Oxford Dictionary as follows:

“lasting only a moment, short-lived, transitory”.

Moment is defined as:

“a very brief portion of time, an instant, a short period of time”.

If there is exercise of domination of the victim by the robber and consequent restriction of the victim’s movements which is more than momentary then the offence of unlawful confinement would be made out.

I will remind you, as I did before, that any conclusion you reach must be grounded on the evidence before you.

That concludes the explanation. I will ask you to return to your deliberations. Thank you.

[82] The appellant submits that this instruction left the jurors with the impression that only a momentary restraint or confinement could escape the ambit of s. 231(5)(e) of the Criminal Code, and that the primary issue they were to consider was the length of confinement rather than the “nature and extent of the force and domination” imposed on the victim. It is said that by using the test described by the trial judge, the jury could have found that Mr. Pritchard had confined Mrs. Skolos simply by virtue of conducting a robbery which took a considerable time to complete, regardless of the degree of force the assailant used. In the appellant’s argument, this was erroneous.

[83] Counsel relied in particular on the decision of the Alberta Court of Appeal in R. v. Strong (1990) 60 C.C.C. (3d) 516, where the Court said:

It must be observed, of course, that not all offences involving illegal domination of one person by another are included in the list of offences in s. 214(5). The notable exception is robbery where the domination of another by force or threats is an element of the offence. The maximum sentence prescribed by Parliament in s. 303 (now s. 344) for robbery is life imprisonment as compared to 10 years prescribed for unlawful confinement. Thus we have in this case the unusual situation that a prosecutor, having proven the commission of a murder, attempts to import into the serious offence of robbery, committed simultaneously, the elements of the less serious offence of unlawful confinement. If the effort is successful, the resulting sentence regime is for first degree murder. Proving robbery without the element of confinement would not have that result though robbery is a more serious offence.

On the argument made by the Crown on this appeal, in virtually all robberies, and in virtually all sexual assaults, the offender would also be guilty of unlawful confinement. For whatever short period of time, the victim of either crime would almost invariably be deprived of "his or her liberty to move from one place to another". The ironic aspect of that would be that the so-called "Kienapple principle" would usually mandate a conditional stay of the unlawful confinement conviction arising from the same transaction which produced a conviction for robbery but that would not be so if a homicide resulted. In that case, the presence of the less serious offence would require a conviction for first degree murder.

Robbery is a crime of specific intent; the Crown is bound to prove that the accused applied violence with the specific purpose of stealing: R. v. George (1960), 128 C.C.C. 289 at p. 301, [1960] S.C.R. 871, 34 C.R. 1, per Fauteux J., as he then was. Since violence or threatened violence is a requisite element of the offence, every robbery involves some restraint on the victim, however transitory, even though the primary intent of the robber is to steal.

In our view, the provisions of s. 214(5)(e) do not apply to classify this murder as first degree murder. Parliament has clearly chosen to omit robbery from the list of offences which produce that result. It cannot, therefore, have intended that the transitory restraint inherent in the violence or threatened violence of every robbery would trigger the section … [At 526-7; emphasis added.]

[84] However, Strong has been criticized, or its reasoning expressly departed from, by other courts, including this court in R. v. Gourgon (1979) 19 C.R. (3d) 272, and the Ontario Court of Appeal in R. v. Kimberly and Clancey (2001) 157 C.C.C. (3d) 129. In Gourgon, the trial judge had instructed a jury regarding the “confinement” of first degree murder that it would have to find “it was forcible confinement beyond a reasonable doubt for purposes in addition to robbery”. (At 278.) McFarlane J.A. for the majority held that this was error. In his words:

It appears that the trial Judge's concern with the purposes of confinement, and particularly, to impress upon the jury his view that there must be a purpose in addition to robbery, stems from his interpretation and application of United States authorities such as The People v. Daniels (1969), 80 Cal. Rptr. 897, 459 Pac. (2d) 225 (S.C.), and Re Earley (1975) 534 Pac. (2d) 721. … These cases involve the meaning to be given the word "kidnapping" in certain California legislation. The American courts developed ideas of to what extent transportation is a part of kidnapping and the nature of conduct substantially increasing risk of harm in the course of a robbery. I have already said kidnapping is not an element in this case. Moreover, in my opinion, the reasoning explained in those authorities is irrelevant to the interpretation and application of the two provisions of our Criminal Code on which this appeal depends. Nothing is expressed or implied in those sections about the purpose of the confinement. Neither is there anything in the history of the legislation to suggest a limitation of that nature to be placed upon the word “confinement”. The interpretation that confinement for the one purpose of robbery is excluded cannot be supported. I think the jury should have been instructed that if they decided that Gourgon did murder the victim, that murder was first degree murder if the jury also found that the victim's death was caused by Gourgon while he was confining or attempting to confine any one or more of the three occupants of the residence. [At 279; emphasis added.]

[85] More recently, in Kimberly and Clancey, the Court, per Doherty J.A., said this in response to an argument based on Strong:

The appellants also rely on R. v. Strong (1990), 60 C.C.C. (3d) 516 (Alta. C.A.) at 527, where it was held that the transitory restraint inherent in the violence or threatened violence of every robbery could not constitute an unlawful confinement for the purposes of the constructive first degree murder provisions. R. v. Strong has found favour in the Quebec Court of Appeal: R. v. Kingsley (1995), 105 C.C.C. (3d) 85 (Que. C.A.) at 88-90 [C.C.C. translation], leave to appeal to S.C.C. granted 108 C.C.C. (3d) vi, appeal discontinued on November 5, 1996, [1996] S.C.C.A. No. 84 (QL); R. v. Simon (2001), 154 C.C.C. (3d) 562 (Que. C.A.) at 569 [C.C.C. translation].

R. v. Strong, supra, makes no reference to R. v. Gourgon, supra, or R. v. Dollan and Newstead, supra. I would not be inclined to abandon a considered decision of this court in favour of a decision of another provincial appellate court that does not address this court's decision. More to the point, however, I do not agree with the reasoning in R. v. Strong, supra.

R. v. Strong, supra, reads a limitation into the plain language of s. 231(5)(e) which is not there. Under the analysis in R. v. Strong, supra, some but not all unlawful confinements will provide a basis for categorizing murder as first degree murder. The section itself, however, contains no such limitation. It speaks of offences against s. 279. Unlawful confinement is one of the offences created by that section. There is nothing in s. 231(5)(e) which suggests that unlawful confinements that are incidental to or in furtherance of other crimes are not encompassed by the section.

I also cannot agree that the absence of any reference to robbery in s. 231(5) necessitates an interpretation of s. 231(5) (e) that excludes unlawful confinements committed in the course of a robbery … [At paras. 101-4; emphasis added.]

(See also R. v. Niedermier (2005) 193 C.C.C. (3d) 199 (B.C.C.A.), at para. 48.)

[86] These authorities lead me to conclude that the trial judge’s instruction to the jury on the issue of confinement was correct and that this ground of appeal must be dismissed. It was open to the jury to conclude, from the evidence before them, that Mrs. Skolos had been confined and killed in the course of that confinement.

Section 686

[87] I turn last to the consequences of the deficiency I have identified in the trial judge’s instruction to the jury on the issue of fabrication of alibi evidence. If the instruction had been complete, he would have told them that only if they were satisfied from “independent” or “extraneous” evidence (i.e., evidence other than evidence tending to show the falsity of the alibi) that Mr. Pritchard had fabricated or concocted the alibi, could they draw any inference from the disbelieved alibi (if they disbelieved it) concerning Mr. Pritchard’s guilt. In the absence of such evidence, they would have to put the disbelieved alibi evidence aside as having no probative value on the substantive question of guilt.

[88] In normal circumstances, I would think the consequences of the error would be prejudicial to an accused. In this case, however, it must be remembered that the inculpatory aspects, or admissions, in the January 2000 statement and Mr. Pritchard’s testimony at trial did not fall to be dealt with as alibi evidence. Only the exculpatory aspects – essentially Mr. Pritchard’s assertion that he had played no role in carrying out the robbery and was not present at the farm that night – would have to be ‘set aside’ as merely disbelieved alibi evidence in the absence of independent evidence of concoction. The jury would still have had before it the admissions by Mr. Pritchard of his role in planning the robbery, in taking and selling the marijuana, and in burying Mrs. Skolos’ body, which bore at least one gunshot wound. In my view, it was this evidence, together with the more objective circumstantial evidence, which led to Mr. Pritchard’s conviction. Applying the very high standard recently described by the majority of the Supreme Court of Canada at paras. 81-2 of R. v. Trochym, 2007 SCC 6, I am satisfied there is no reasonable possibility any other verdict would have resulted, given the jury’s acceptance of Mr. Wall’s testimony and rejection of much of Mr. Pritchard’s testimony. Thus I am satisfied that no substantial wrong or miscarriage of justice occurred as a result of the one highly technical and subtle deficiency in the trial judge’s charge to the jury.

[89] For the foregoing reasons, I would dismiss the appeal.

“The Honourable Madam Justice Newbury”

Concurring Reasons for Judgment of the Honourable Mr. Justice Hall

[90] I have read in draft the reasons of Newbury J.A. and I adopt her comprehensive statement of the facts in this case. I agree with her conclusion that this appeal ought to be dismissed, but I propose to briefly set out my own reasons as to why I consider this result should obtain.

[91] The jury had before them, aside from any statements of the appellant, what, in my view, was a powerful body of circumstantial evidence that the appellant had robbed the deceased of a quantity of marijuana and, in the course of the robbery, murdered the deceased and thereafter disposed of her body. The conviction was for first degree murder because the homicide was committed while the deceased was confined. Code s. 231(5) provides that murder is first degree murder if the death of a person is caused by a person committing or attempting to commit the offence of confinement under Code s. 279(2). As my colleague correctly observes, this was primarily a case founded on circumstantial evidence. As I see it, the only direct evidence of any aspect of the homicide is the evidence of the appellant that he observed the deceased with blood on her hair and buried her. That direct evidence could be found probative of the circumstance that she was dead despite the fact that no remains were ever discovered. Aside from that evidence, the remainder of the evidence in the case is circumstantial in nature.

[92] There was evidence before the jury that the appellant contemplated a robbery of the occupants of the farm for a significant period before November 1995. The following evidence was adduced at trial by counsel for the appellant from Shannon Hardy, the common-law partner of the appellant:

Q … Did Mr. Pritchard ever tell you about an opportunity to steal marijuana?

A Yes.

Q At the time that he told you, who did he say had told him of this opportunity?

A Bill Wall.

Q To the best of your recollection what did he say at that time?

A He told me that Bill had told him that he knows of a – of a good score where there would be pot and money.

Q Okay. Did he indicate at that time whether or not Bill Wall had told him where this was?

A No, Bill didn’t tell him then.

Q Did Mr. Pritchard say that Bill had not told him that?

A Right.

Q Did Mr. Pritchard indicate to you one way or another whether or not Bill had told him whose place it was?

A He hadn’t. He didn’t tell him that.

Q Now, to the best of your recollection when did this take place, and if we use – when was Zachary born?

A ’95. November ’95.

Q What day in November of ’95?

A The 23^rd.

Q All right. Now, if we use Zachary’s date of birth as our anchor, as our time marker, when Mr. Pritchard first said this was it before or after Zachary’s birth?

A Well before.

Q Okay. And when you say well before Zachary’s birth, how long before Zachary’s birth to the best of your estimation?

A. At least a year.

[93] Thus there was evidence before the jury that the event was one that did not arise suddenly to the appellant but was a matter that had been in his contemplation for a period of time anterior to the robbery. He had time to consider how best to commit the robbery and do it in a fashion to escape detection. In late November of 1995, the appellant was under a number of pressures, both emotional and financial. His partner was expecting a second child by the appellant. The appellant was without any substantial funds and his partner and the new infant would be in dire need of funds. The appellant had formed an attachment with a co-worker and was residing with her in a local motel in Prince George. He wished to be able to pursue this liaison and also to assist his partner in a financial way. Although he had access to his girlfriend’s relatively sound truck, his own vehicle was neither new nor in good condition. He wished to get a newer vehicle and he did purchase one in Alberta within a few days of the robbery. On November 23, 1995, the appellant had a compelling financial motivation to get access to a substantial amount of money. Obtaining and selling a large amount of marijuana would solve many of the financial and domestic problems then facing the appellant.

[94] After the disappearance of the deceased, Mrs. Skolos, the police came to suspect that the appellant had been involved in the robbery and her disappearance but there was a dearth of evidence to support such suspicions. That situation changed after the police were successful in persuading Ms. McCarthy to tell them what she knew. What she told them is set forth in detail in the reasons of my colleague. The finding at her direction of a trunk that could be linked to the Skolos’ farm and a plastic bag with the thumbprint of the appellant upon it, which bag was also linked to the farm, was substantial evidence making more reliable her account of the activities of the appellant concerning a large quantity of marijuana on November 23-24, 1995. The recent possession of the marijuana was circumstantial evidence of the involvement of the appellant in the robbery at the farm.

[95] Observations of witnesses at the Skolos' farm after November 24 coupled with the evidence of McCarthy (including the aforementioned evidence of the discovery of the trunk and bag), as well as the efforts of the appellant to dispose of a .22 calibre weapon in the summer of 1996 constituted the main circumstantial evidence against the appellant. Of course there were other pieces of evidence including the evidence of Bill Wall that the appellant was aware of the marijuana operation at the farm and that he knew the location and occupants, the appellant’s pressing need for funds, his disposal of the truck and his more affluent status immediately after November 24 when he was able to give his common law partner a sum of money. That the deceased victim was no longer alive and had been killed by whomever committed the robbery was an overwhelming inference from the evidence found at the scene, from her never being seen after that time, from her failure to access bank accounts and the like.

[96] Those were the strongly inculpatory facts that stood against the appellant when he faced trial on the charge of first degree murder at the end of 1999. At this point he elected to give a lengthy statement to the police seeking to cast responsibility for the homicide of the deceased on his friend Bill Wall. The benefit he was going to receive for disclosing to the authorities the whereabouts of the body of the deceased was that he would be prosecuted for second degree murder as opposed to first degree murder. However, when he failed to do what he had promised he was going to do, he was proceeded against on the original charge.

[97] Bill Wall vigorously refuted the assertion the appellant made in his January 2000 statement and in his testimony before the jury that Wall was the killer. Of course, Wall was a much less likely suspect than the appellant. His financial condition in November 1995 was markedly better than the appellant, he was a long time friend of the deceased and her husband and since he was reaping an ongoing financial benefit from the dealings of himself and his brother in marijuana with the deceased and her husband, there was no apparent motive on the part of Wall to rob and kill the deceased. On the evidence, any motivation on the part of Wall ran the other way. It is entirely unsurprising that the jury put no credence in these assertions of the appellant that Wall was the killer.

[98] Of course, a finding by the jury that Wall was not the killer (which of necessity must have been the finding of the jury) did not, of necessity, lead to the conclusion that the appellant was. The proof of that had to follow from the consideration by the jury of all the evidence in the case. In my opinion, there existed a solid basis in the evidence, altogether aside from what the appellant told the police in 2000 and testified to at trial, for the jury to convict the appellant of the first degree murder of the deceased. Contrary to the submissions made on behalf of the appellant that the verdict of the jury was speculative, I am of the opinion that the totality of the circumstantial evidence in this case ineluctably leads to the conclusion that the appellant robbed the deceased of marijuana and killed the deceased in the course of confining her during the commission of that robbery. Applying the principles set forth in R. v. Biniaris (2000), 143 C.C.C. (3d) 1 (S.C.C.) and R. v. Yebes, [1987] 2 S.C.R. 168, I consider there was a reasonable basis in the evidence to render a verdict of guilty of first degree murder against the appellant.

[99] The statements of the appellant were before the jury for their consideration. I agree with the comments of Ryan J.A. in the recent case of R. v. David & Seitcher, (2006) 213 C.C.C. (3d) 64, 2006 BCCA 412 that a statement is like any other piece of evidence in a trial in that it forms part of the evidence that the jury will weigh and consider in determining the case before them. In this case, it was certainly open to the jury to find that what was said by the accused to the authorities and in his evidence seeking to cast responsibility for the robbery and homicide onto Bill Wall were deliberate falsehoods concocted to mislead them. If the jury accepted the evidence of Bill Wall, that was evidence of the falsehood of the account of events given by the appellant. The trial judge correctly instructed the jury that if they found deliberate falsehood calculated to mislead them on the part of the appellant, they could consider this as an inculpatory circumstance against him. The verdict of the jury indicates they accepted Wall’s evidence that he was not the killer of the deceased. The jury was also entitled to view the statement in the light suggested in argument by the Crown, namely that in the narration of some of the activity surrounding the robbery and homicide the appellant was using what he said Wall did as a proxy for what he himself did. That is the so-called substitution theory. It was entirely within the province of the jury to consider this submission and give such weight to it as they saw fit. The judge made no error in leaving this issue to be considered by the jury.

[100] I am in general agreement with the reasons my colleague gives for distinguishing the case of MacKay from the case at bar. In MacKay, there was simply no evidence of a planned homicide, the route to first degree murder in that case. In the present case, the route to a finding of first degree murder is through a conclusion by the jury that the deceased was killed while being confined in the course of the robbery. As my colleague notes, it is a case concerning proof of the actus reus rather than proof of the state of mind of the appellant. For this reason, I do not consider MacKay a governing authority in this case.

[101] Concerning the submission that the judge erred in his instructions to the jury on the meaning of confinement in s. 279 of the Criminal Code I entirely agree with the reasons and disposition of this issue by my colleague.

[102] Since I am of the view that none of the grounds of appeal advanced in argument before the Court should succeed, I would dismiss this appeal from conviction.

“The Honourable Mr. Justice Hall”

“The Honourable Madam Justice Kirkpatrick”