COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Panghali,

 

2012 BCCA 407

Date: 20121016

Docket: CA038967

Between:

Regina

Respondent

 

And

Mukhtiar Panghali

Appellant

 

Before:

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Harris

On appeal from:  Supreme Court of British Columbia, February 4, 2011
(R. v. Panghali, 2011 BCSC 138, New Westminster Registry No. X070334-A)

Counsel for the Appellant:

M. Tammen
J. Narwal

Counsel for the Respondent:

D.T.R. Murray, Q.C.
J.W. Green

Place and Date of Hearing:

Vancouver, British Columbia

June 8, 2012

Place and Date of Judgment:

Vancouver, British Columbia

October 16, 2012

 

Written Reasons by:

The Honourable Mr. Justice Frankel

Concurred in by:

The Honourable Mr. Justice Groberman
The Honourable Mr. Justice Harris


 

Reasons for Judgment of the Honourable Mr. Justice Frankel:

INTRODUCTION

[1]             Manjit Panghali was last seen alive leaving a pre-natal yoga class. A few days later her badly burned body was found on a beach. She had been strangled to death. Her husband, Mukhtiar Panghali, was charged with and convicted of second degree murder and with interfering with bodily remains. The trial took place before Madam Justice Holmes of the Supreme Court of British Columbia, sitting without a jury. The case against Mr. Panghali was entirely circumstantial. The Crown relied on such things as his behaviour following Ms. Panghali’s disappearance, his acquisition of her cellular telephone after she was last seen alive, and his visit to a convenience store late on the night she disappeared (at a time when he told the police he was at home). Mr. Panghali did not testify or call any other evidence.

[2]             Mr. Panghali contends that the trial judge’s verdict is unreasonable or unsupported by the evidence. He says the evidence does not support the conclusion that he caused Ms. Panghali’s death or, if he did cause her death, that he had the intent required for second degree murder. He also says the judge erred in:  (a) admitting lay opinion evidence that he is the person depicted in images from the convenience store’s video camera; (b) admitting evidence with respect to the a hematoma observed during the autopsy of Ms. Panghali’s body; and (c) finding that the burning of Ms. Panghali’s body was probative on the issue of intent.

[3]             For the reasons that follow, I would dismiss this appeal.

FACTUAL BACKGROUND

General Narrative

[4]             In October of 2006, the Panghalis had been married for ten years. They lived in Cloverdale, British Columbia with their three and one-half-year-old daughter, Maya. Ms. Panghali was four months pregnant. Both were school teachers. Mr. Panghali was about six feet tall and weighed approximately 200 pounds. Ms. Panghali was about five feet seven inches tall and weighed approximately 130 pounds.

[5]             Ms. Panghali left home at approximately 6:35 p.m. on Wednesday, October 18, 2006, to attend a pre-natal yoga class in South Surrey (normally a 15 minute drive). Mr. Panghali was at home taking care of Maya. Records obtained from Ms. Panghali’s cellular telephone service provider indicate that four calls were made from her telephone to the land-line telephone at her home between 6:43 p.m. and 6:50 p.m.

[6]             Ms. Panghali was last seen alive when she left the yoga class at approximately 8:35 p.m.

[7]             Shortly after midnight on Thursday, October 19, 2006, Mr. Panghali called the Emergency Health Services non-emergency line to ask whether anyone had been admitted to hospital as a result of a car accident in Surrey. He told the operator that he was worried because his wife had not returned home from her yoga class. He said the class was in the Whalley area near the public library (it was, in fact, in South Surrey). The operator checked for reports of accidents in that area and found none. Mr. Panghali told the operator that he had been unsuccessful in trying to reach Ms. Panghali on her cellular telephone.

[8]             At 6:30 a.m. on October 19, 2006, Mr. Panghali telephoned his father-in-law, Resham Basra, and asked him to take Maya to pre-school. When Mr. Basra arrived, he and Mr. Panghali had a brief conversation about Ms. Panghali’s absence. Mr. Basra left to take Maya to school and Mr. Panghali left for work. Mr. Basra picked Maya up from school later that morning and took her to his home.

[9]             The evidence established that as of 2:02 p.m. on October 19, 2006, the unique subscriber identification module (“SIM”) card for Ms. Panghali’s telephone number (which was on a “pay-as-you-go” plan) had been removed from her handset and replaced with the SIM card for Mr. Panghali’s cellular telephone number, i.e., his telephone number was now being used on her handset. The last call made using Mr. Panghali’s SIM card in his own handset was at 8:08 a.m. on October 19, 2006. The last call made using Ms. Panghali’s SIM card in her handset was the one placed to her home at 6:50 p.m. on October 18, 2006.

[10]         Mr. Panghali joined several co-workers at Brewster’s Pub in Surrey after work on October 19, 2006. After being at the pub for about an hour, Mr. Panghali received a call to his cellular telephone number from Mr. Basra. A short while later, Mr. Panghali left the pub to pick up Maya.

[11]         At 11:35 p.m. on October 19, 2006, Mr. Panghali called the Surrey Detachment of the Royal Canadian Mounted Police to report Ms. Panghali missing. He told the operator she had gone to a yoga class near the Whalley library and that calls to her cellular telephone were being answered with a “customer not available” message.

[12]         At approximately 3:00 a.m. on October 20, 2006, a police officer went to the Panghali residence to take a missing persons report. Mr. Panghali told the officer that his concerns were reduced because Ms. Panghali had spent a night away from home once or twice before. He provided the officer with her cellular telephone number, a description of her vehicle, and its licence plate number.

[13]         Mr. Panghali was interviewed at the police detachment on the morning of Saturday, October 21, 2006. He described Ms. Panghali as emotionally volatile and expressed concern about her friendship with the manager of a store where she had worked while in university and occasionally since.

[14]         On the morning of October 23, 2006, a woman walking on a strip of beach alongside the Deltaport causeway (at Roberts Bank, about 40 kilometres from the Panghali residence) discovered the burned remains of a human body. A yellow cap of the type commonly used on plastic gas cans was on the ground nearby.

[15]         On October 23, 2006 (after the remains were found but before they were identified), Mr. Panghali participated in a press conference seeking public assistance in finding Ms. Panghali. Responding to questions from journalists, he said that he had waited 26 hours to report her missing because he first wanted to be sure, from speaking to family and friends, that no one knew her whereabouts. When Mr. Panghali was asked if Ms. Panghali had a cellular telephone he said she did, but that it appeared to have been turned off.

[16]         During the press conference, the police announced that Ms. Panghali’s vehicle had been located in the Whalley/Guilford area of Surrey, legally parked with its alarm activated. It was later determined that the position of the driver’s seat and the rear-view mirror were consistent with the vehicle having last been driven by a person taller than Ms. Panghali.

[17]         Mr. Panghali was interviewed by members of the Integrated Homicide Investigation Team on the evening of October 23, 2006. When questioned about details he had previously provided, he stated that he had already told the police everything he knew. When asked if he had been involved in his wife’s murder, he attempted to leave, but was persuaded to continue the interview. He then decided to leave, explaining that he was numb from the events and no longer wished to talk.

[18]         On the morning of October 26, 2006, the body that had been discovered on the beach was identified through dental records as being that of Ms. Panghali. Mr. Panghali was informed of this a few hours later.

[19]         Ms. Panghali’s funeral took place on Monday, October 30, 2006. Later that day, Mr. Panghali was interviewed by the police for three hours. By this time, he had learned that Ms. Panghali’s yoga classes were in South Surrey, not in Whalley.

[20]         On November 21, 2006, a police officer reviewed video footage from a Chevron Town Pantry convenience store located about a four minute drive from the Panghali residence. That video showed a person, whom the officer believed to be Mr. Panghali, purchasing a cigarette lighter and a newspaper at 1:00 a.m. on October 19, 2006, i.e., the night Ms. Panghali went missing. Mr. Panghali’s presence at the store was inconsistent with his statement to the police that he had stayed home with Maya that night and had gone to bed shortly after calling Emergency Health Services.

[21]         Mr. Panghali was arrested on January 22, 2007. He was in possession of Ms. Panghali’s cellular telephone handset which was operating with his SIM card.

The Autopsy / Cause of Death

[22]         Ms. Panghali’s death was caused by manual strangulation that occurred before her body was burned. The degree of force applied was sufficient to fracture the hyoid bone at the front of her neck. Due to the condition of Ms. Panghali’s body, the forensic pathologist who performed the autopsy, Dr. Charles Lee, was unable to make any determination about injury to the exterior of her neck.

[23]         Dr. Lee testified that hyoid bone fractures are common in cases of manual strangulation. He stated that such fractures are rare in suicidal hanging deaths, as they require more force than is usually caused by the weight of a human body.

[24]         Dr. Lee said that it was most likely that Ms. Panghali’s neck had been compressed, cutting off the flow of blood to the brain. He further stated that such compression causes unconsciousness within 10 to 15 seconds. If pressure is removed, then a person will quickly regain consciousness. However, if pressure is maintained, then the brain will suffer irreversible damage and the person will die within a few minutes.

[25]         Dr. Lee agreed that it was not possible to be precise as to how long it would take a person to die from strangulation; “[i]t probably takes anywhere from several seconds to a few minutes.”

[26]         In addition, Dr. Lee testified that he saw what he described as “an apparent hematoma in the perineum”, the perineum being the skin and the soft tissue that surrounds the vagina and anus of a woman. Following a voir dire, the trial judge allowed the Crown to tender Dr. Lee’s evidence as to the presence of that hematoma. She also admitted evidence from both Dr. Lee and Dr. Geoffrey Cundiff, a specialist in obstetrics and gynaecology, that the hematoma would have been caused by severe trauma before death, such as the insertion of an object or an external force such as a kick. However, in her reasons for judgment, the judge concluded that Dr. Lee’s evidence as to the presence of the hematoma was unreliable and she, therefore, excluded it from consideration. Her voir dire ruling is an issue on this appeal.

Recognition Evidence—Convenience Store Video

[27]         In October of 2006, Mr. Panghali wore a turban and had a beard. At the trial, in the fall of 2010, he no longer wore a turban and both his face and head were clean shaven.

[28]         The trial judge, following a voir dire, ruled admissible “opinion” evidence from the police officer who recognized Mr. Panghali as the man in the convenience store video. Prior to seeing that video and related photographs, the officer had met with Mr. Panghali four times during the preceding three weeks; the longest meeting being a three hour interview. He testified that when he saw the video and photographs for the first time, he immediately recognized Mr. Panghali and was “100-percent” certain it was him. The officer particularly relied on three photographs of the man leaving the store that, collectively, showed his full height, a full frontal view of his face, and views of his face at different angles and distances.

[29]         When asked, in cross-examination, how he could be 100 percent certain that Mr. Panghali is the man in the video, the officer stated:

As indicated, I’d had personal dealings with Mr. Panghali on four separate occasions, including being in a room with him for three hours during the interview. Looking at the video, I believed it was Mr. Panghali. So specifically, my personal dealings, being an Indo-Canadian person, as well, I am familiar with Indo-Canadian descriptors, as well, so there wasn’t anything there that would indicate to me that it wouldn’t be Mr. Panghali so I think that it was Mr. Panghali.

[30]         Another voir dire was held with respect to the admissibility of the evidence of ten other witnesses who identified Mr. Panghali as the man in the video. Most of those witnesses had known and socialized with Mr. Panghali and Ms. Panghali for more than ten years; they referred to him as “MP”. Two of those witnesses had taught with Mr. Panghali at the same school. One of the others was Ms. Panghali’s sister. None of them had seen the video / photographs before being shown them in the courtroom.

[31]         Mr. Panghali accepted that the trial judge’s ruling admitting the police officer’s recognition evidence was dispositive of his objection to the admissibility of the similar evidence given by these witnesses and, therefore, their evidence became part of the trial record.

[32]         The ruling admitting the evidence identifying Mr. Panghali as the person in the video is an issue on the appeal.

TRIAL JUDGE’S REASONS

(2011 BCSC 138)

[33]         The trial judge’s reasons are detailed and comprehensive. Based on the evidence and the positions taken by the Crown and Mr. Panghali, she stated the issues as follows (para. 7):

1.      whether the Crown has proven beyond a reasonable doubt that Mr. Panghali was the person who killed Ms. Panghali and burned her body, and

2.      if it has, whether the Crown has also proven beyond a reasonable doubt that he did so with the mental element that makes the killing second degree murder rather than manslaughter; that is, in the circumstances, that Mr. Panghali meant to cause Ms. Panghali bodily harm that he knew was likely to cause her death, and was reckless whether death ensued or not.

[34]         With respect to the first issue, at trial the Crown submitted there were several categories of circumstantial evidence that, taken as a whole, gave rise to an inevitable inference that Mr. Panghali was responsible for Ms. Panghali’s death. However, the trial judge found some of that evidence to have no probative value. I do not intend to discuss the evidence on which the judge did not rely.

The Location of Ms. Panghali’s Vehicle

[35]         The trial judge rejected the Crown’s submission that she should infer that Mr. Panghali had parked Ms. Panghali’s vehicle in Whalley as part of an elaborate ruse because he mistakenly believed her yoga classes were held in Whalley. She noted that it was not clear that Mr. Panghali was the only person mistaken as to where the Wednesday evening yoga classes were held. Further, the vehicle was parked some 16 blocks away from where the classes were held. However, the judge did state that the evidence with respect to the vehicle “may have some value in the context of the evidence as a whole”:  para: 79.

Mr. Panghali’s Possession of Ms. Panghali’s Cellular Telephone

[36]         Based on cellular telephone records and technical evidence regarding the operation of cellular telephones and cellular networks, the trial judge found that:  (a) Ms. Panghali had called home four times while driving to her yoga class; (b) Mr. Panghali had used Ms. Panghali’s handset to make and receive calls between October 19, 2006 and January 22, 2007; and (c) Mr. Panghali had knowingly been untruthful in stating, on several occasions after Ms. Panghali had disappeared, that she had her cellular telephone with her.

[37]         Having regard to all of the evidence relating to cellular telephones and Mr. Panghali’s untruthful statements, the trial judge drew the inference that he acquired Ms. Panghali’s cellular telephone handset after she had returned home from the yoga class on the night of October 18, 2006:  para. 115.

Delay in Reporting Ms. Panghali’s Disappearance

[38]         Based on an analysis of Mr. Panghali’s actions and statements (both to the police and others), the trial judge found his apparent lack of concern for Ms. Panghali’s whereabouts as of the morning of October 19, 2006, to be significant. In this regard, she stated:

[150]    Although, as I have indicated, I conclude on all the evidence that Mr. Panghali’s failure to notify others on the night Ms. Panghali went missing has little value probative of guilt or innocence, I view differently his conduct the next day when he essentially carried on as normal, except as was necessary to arrange for Maya’s care. I conclude that by then, Ms. Panghali’s absence must for him have rung very loud alarm bells. That Mr. Panghali professed that it did not, and that he acted on that basis, in my assessment supports the Crown’s position that he knew much more about Ms. Panghali’s disappearance than he acknowledged.

Convenience Store Video

[39]         In the course of arriving at her verdict, the trial judge viewed the convenience store video/photographs along with video images and photographs of Mr. Panghali from the fall of 2006 (i.e., police interviews, press conference, Brewster’s Pub), in order to determine whether Mr. Panghali was the person who purchased the cigarette lighter and newspaper at 1:00 a.m. on October 19, 2006. That process included pausing the video of the police interviews and the press conference “in order to closely compare Mr. Panghali’s features, as shown from different angles, with his features as they appear in the still images taken from the convenience store video footage”:  para. 161.

[40]         Based on her examination of the above mentioned exhibits, the trial judge was satisfied that Mr. Panghali is the person in the convenience store video. In the course of setting out that finding, she stated:

[164]    Mindful of the natural tendency to see similarities rather than differences, in my review of the evidence I looked hard for any inconsistencies between Mr. Panghali, as shown in the police interviews and the press conferences, on one hand, and the man shown in the convenience store footage and stills, on the other. I could find found [sic] none. The man in the convenience store footage is identical to Mr. Panghali in all discernible features, including several distinctive ones. I could detect no dissimilarity at all.

...

[166]    [The] discrepancy [between the style of the turban worn by the man in the convenience store video and that worn by Mr. Panghali at Brewster’s Pub on October 18 and 19, 2006] does not affect my conclusion that Mr. Panghali is the man shown in the convenience store video footage. On many occasions where his identity is undisputed, such as in the police interviews and the press conference, Mr. Panghali wore a turban closely resembling the turban shown in the convenience store footage. That style is best shown in the still image (exhibit 18) taken from the press conference. In my view, the explanation for the discrepancy between the two styles of turban lies in Mr. Sahota’s testimony -- despite some different evidence on this point -- that Mr. Panghali customarily wore two different styles of turban. Of these, the style that Mr. Panghali described to Mr. Sahota as the “sport turban” (which I conclude is the style shown in exhibit 18 and worn in the convenience store) was the less formal and the quicker to tie.

[167]    On the basis of the video-recordings, and the stills taken from them, showing Mr. Panghali in October 2006, I am confident that he is the man shown in the convenience store video footage.

[41]         The trial judge went on to state that the evidence of the police officer who indentified Mr. Panghali as the person in the convenience store video “reinforce[d]” her conclusion. She held that the officer’s prior personal involvement with Mr. Panghali provided an adequate foundation for his recognition evidence:  paras. 168, 169.

[42]         Turning to the ten other witnesses who had identified Mr. Panghali in the video, the trial judge accepted the recognition evidence given by seven of them. Her rejection of the evidence given by the remaining three witnesses was based on concerns with respect to their objectivity:  para. 172.

[43]         In accepting the evidence of the seven witnesses, the trial judge noted that each had a “deep history” with Mr. Panghali:  para. 173. She also noted the care each had taken in examining the video/photographs for the first time, and the confidence with which they made their respective identifications:  paras. 182, 183.

[44]         In concluding her discussion of the convenience store video, the trial judge stated:

[184]    The evidence of these witnesses, based on their personal direct experience with Mr. Panghali over the course of years up to and including the time of the events in 2006, thus reinforces the conclusion at which I arrived, based on a review of video-recorded images of Mr. Panghali in police interviews and the press conference shortly after those events.

[185]    My own review of those images, together with S/Sgt. Sidhu’s lay opinion recognition evidence and that of the lay witnesses whose evidence I accept, leaves me with no doubt at all that the convenience store video footage shows Mr. Panghali purchasing a newspaper and cigarette lighter at approximately 1:00 a.m. late in the night that Ms. Panghali went missing.

Identity:  Did Mr. Panghali Cause Ms. Panghali’s Death?

[45]         At the outset of the section of her reasons headed “The Evidence as a Whole”, the trial judge instructed herself on the approach to be taken in dealing with a case based wholly on circumstantial evidence. This included the need to evaluate the evidence as a whole and that, for there to be a conviction, guilt must be the only reasonable inference available.

[46]         Despite there being no clear evidence of motive, the judge opined that “powerful evidence remain[ed]”:  para. 199. In her review of the evidence, she found the following—established either directly or by inference—to be significant:

(a)      Mr. Panghali went to the convenience store in the early morning hours of October 19, 2006, and had been untruthful in stating that he was at home that night;

(b)      Mr. Panghali came into possession of Ms. Panghali’s cellular telephone within 15 hours of her disappearance, and “deliberately lied” about her having that telephone with her;

(c)      Mr. Panghali was the last person to see Ms. Panghali alive after she returned home from the yoga class; and

(d)      Mr. Panghali’s conduct in the days following Ms. Panghali’s disappearance indicated he knew more about her disappearance than he acknowledged.

[47]         With respect to the convenience store visit, the trial judge rejected as unsupported by any evidence the suggestion that Mr. Panghali had gone to the store for reasons unconnected with Ms. Panghali’s death:

[201]    Viewed in isolation, Mr. Panghali’s undisclosed late-night excursion to the convenience store may support inferences other than that he did so after killing Ms. Panghali. For example, he may have wanted to conceal having left Maya unattended at home. Or, he may have had trouble sleeping because of anger at what he thought was Ms. Panghali’s voluntary departure with another man, and was embarrassed to acknowledge what he believed to be her relationship, or his resulting anger.

[202]    However, viewed in the context of the evidence as a whole, the late-night excursion leads inevitably to the inference the Crown suggests.

[203]    This is in part because in Mr. Panghali’s many accounts of the events and professed efforts to help the police with their investigations, he referred to nothing that might support these alternative inferences -- and in fact openly alluded to what he believed to be a relationship with Mr. Phunal -- and no other evidence supports them.

[204]    But more fundamentally, other evidence gives that late-night excursion inevitable significance in the overall chain of events.

[48]         The trial judge was of the view that the location and condition of Ms. Panghali’s vehicle added context to the evidence as a whole. She was also of the view that Mr. Panghali’s “incongruous reactions” following Ms. Panghali’s disappearance provided context, e.g., his request that a police officer delay coming to see him so that he could get more sleep and his complaint about the number of telephone calls he was getting from family and friends shortly after Ms. Panghali disappeared.

[49]         Having reviewed and considered all of the evidence, the trial judge found that the only rational inference was that Mr. Panghali was the person who killed Ms. Panghali and burned her body:

[212]    Is guilt the only rational inference from the evidence?  Much of the evidence that I have found to be probative of guilt is consistent also with Mr. Panghali acting after-the-fact to protect someone else who killed Ms. Panghali without Mr. Panghali’s knowledge or participation at the time.

[213]    However, there is, simply, no evidence at all to support such an alternative inference. It would amount to a speculative or imaginative conclusion, not a rational one, because it would not be founded on evidence. In R. v. Wild, [1971] S.C.R. 101 at 110-111, the Supreme Court of Canada repeated with approval the trial judge’s comments in R. v. McIver, [1965] 1 C.C.C. 210 at 214 (Ont. H.C.), aff’d [1965] 4 C.C.C. 182 (C.A.), aff’d [1966] S.C.R. 254:

... the case is to be decided on the facts, that is, the facts proved in evidence and the conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts. No conclusion can be a rational conclusion that is not founded on evidence. Such a conclusion would be a speculative, imaginative conclusion, not a rational one.

[214]    As Evans J.A. observed in R. v. Torrie (1967), 50 C.R. 300 (Ont. C.A.) at 303, the Crown need not negative every possible conjectural suggestion that may be consistent with an accused person’s innocence:

I recognize that the onus of proof must rest with the Crown to establish the guilt of the accused beyond a reasonable doubt, but I do not understand this proposition to mean that the Crown must negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused.

[215]    For the reasons I have given, I conclude that the only rational inference from the body of evidence as a whole is that Mr. Panghali killed Ms. Panghali. The body of evidence establishes beyond a reasonable doubt that he did so.

[216]    Similar conclusions apply to the burning of Ms. Panghali’s body. The only rational inference is that it was arranged or done by the person who killed Ms. Panghali, in order to conceal facts or evidence about the killing.

Mens Rea for Second Degree Murder

[50]         Having found that Mr. Panghali killed Ms. Panghali, the trial judge turned to the issue of whether the Crown had established the mental element (i.e., mens rea) necessary to find him guilty of second degree murder under s. 229(a) of the Criminal Code, R.S.C. 1985, c. C-46:

Culpable homicide is murder

(a)     where the person who causes the death of a human being

(i)   means to cause his death, or

(ii)  means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

[51]         The Crown relied on the following classes of evidence in support of its position that s. 229(a)(ii) applied:

(a)      the presence of the apparent hematoma in the perineum and the evidence as to how it was caused;

(b)      Mr. Panghali’s negative statements about Ms. Panghali after her disappearance;

(c)      the burning of Ms. Panghali’s body; and

(d)      the amount of force used and the duration of the strangulation.

[52]         Being of the view that it was “unsafe” to rely on Dr. Lee’s testimony that he had observed an “apparent hematoma” during the autopsy, the trial judge attached no weight to any of the testimony concerning the hematoma.

[53]         The trial judge considered the burning of Ms. Panghali’s body to be after-the-fact conduct relevant to the issue of intent:

[238]    The evidence here includes little detail concerning the process by which Ms. Panghali’s body was burned, or the length of time over which the burning took place. As I indicated at the outset, we know only that Ms. Panghali was not alive when her body was burned.

[239]    However, the very fact of the burning, and that it was done in a public place, each indicate a taking of effort and risk well beyond those necessary for a simple abandonment of Ms. Panghali’s body in a place and manner that would not identify Mr. Panghali as the person who killed her. That Mr. Panghali took those efforts and those risks in my view provides evidence that he did so for a reason unrelated to concealing his identity as the offender.

[54]         With respect to the cause of death, the trial judge found that Dr. Lee’s evidence “allow[ed] for the possibility that the manual strangulation ... lasted only a matter of several seconds”:  para. 247. The amount of force used in causing Ms. Panghali’s death was of particular significance to the trial judge. In stating her conclusion that the mens rea for second degree murder had been proven, the judge said:

[255]    To apply any strangling pressure at all around a person’s neck is to engage in obviously risky conduct. The risks manifestly increase with the amount of force applied and the length of time for which it was maintained. The force here was considerable, applied to a much smaller person and for more than a fleeting period of time.

[256]    The amount and duration of the force he used, together with the other evidence I have discussed, provide proof beyond a reasonable doubt that Mr. Panghali meant to cause bodily harm to Ms. Panghali that he knew was likely to cause her death, and was reckless about that result.

[55]         The trial judge considered the negative statements Mr. Panghali made about Ms. Panghali after she disappeared as relevant to his state of mind. In her view, those were “not the statements of a person who had killed a person by strangling them, but did so without intending or foreseeing the possibility of death”:  para. 250.

(Mr. Panghali does not take issue with the fact that the judge misspoke when she used the expression “possibility of death”, rather than “likelihood of death”. He accepted that she properly directed herself in accordance with s. 229(a)(ii).)

[56]         In the result, the trial judge found Mr. Panghali guilty of both second degree murder and interfering with bodily remains (Criminal Code, ss. 235(1) and 182(b)).

GROUNDS OF APPEAL

[57]         Mr. Panghali states his grounds of appeal as follows in his factum: 

A.         The verdict is unreasonable and unsupported by the evidence

B.         The learned Trial Judge erred in finding that evidence of burning of the body was probative on the issue of intent

C.        The learned Trial Judge erred in permitting lay opinion evidence as to the identity of an individual depicted in video imagery captured by closed circuit video camera at a Chevron convenience store

D.        The learned Trial Judge erred in admitting evidence related to an apparent hematoma observed by a pathologist during the autopsy of the deceased

As there is some overlap between the unreasonable verdict ground and the other grounds, I will first address the grounds relating to the admissibility of evidence and/or the use of evidence.

ANALYSIS

Burning of the Body

[58]         Mr. Panghali submits that the burning of Ms. Panghali’s body has no probative value with respect his intention at the time of the killing. He says that, therefore, the trial judge erred in considering the burning of the body in finding that he had the requisite mens rea for second degree murder. His primary position is that the burning of Ms. Panghali’s body is “equally explained by” or “equally consistent with” the offences of murder and manslaughter. That is, a person who wishes to avoid detection may take steps to conceal an unlawful killing regardless of whether he or she acted with the mens rea of murder. Alternatively, he says that the burning of the body is equally consistent with his having acted after the fact to protect someone else who had killed Ms. Panghali without his knowledge or participation.

[59]         Mr. Panghali’s alternative submission can be disposed of summarily. It is based on pure speculation. There is no evidence whatsoever to support the proposition that Ms. Panghali was killed by one person and her body later burned by another.

[60]         The most recent discussion of after-the-fact conduct (also referred to as post-offence conduct) by the Supreme Court of Canada is R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, aff’g 2009 BCCA 513, 248 C.C.C. (3d) 499. In that case, Mr. Justice Rothstein said the following:

22        The principle that after-the-fact conduct may constitute circumstantial evidence of guilt remains good law. At its heart, the question of whether such evidence is admissible is simply a matter of relevance ([R. v. White, [1998] 2 S.C.R. 72], at para. 23). As Major J. noted in White (1998), “[e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborative role” (para. 21). As with all other evidence, the relevance and probative value of post-offence conduct must be assessed on a case-by-case basis (para. 26). ...

...

37        [R. v. Arcangoli, [1994] 1 S.C.R. 129], and its successor case White (1998), stand for the proposition that a “no probative value" instruction will be required when the accused’s post-offence conduct is “equally explained by” or “equally consistent with” two or more offences (White (1998), at para. 28; Arcangioli, at pp. 145 and 147). This proposition neither complicates nor goes beyond the basic rule of relevance: to say that an item of evidence is not relevant; that it is not probative of a live issue; or that it is “equally explained by” or “equally consistent with” either determination of a live issue are three ways of saying the same thing.

...

42        Thus, Arcangioli and White (1998) should be understood as a restatement, tailored to specific circumstances, of the established rule that circumstantial evidence must be relevant to the fact in issue. In any given case, that determination remains a fact-driven exercise. Whether or not a given instance of post-offence conduct has probative value with respect to the accused’s level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial. There will undoubtedly be cases where, as a matter of logic and human experience, certain aspects of the accused’s post-offence conduct support an inference regarding his level of culpability.

[Emphasis added.]

[61]         Mr. Panghali relies on a number of cases in which after the fact conduct was found not be to probative of mens rea. I do not intend to discuss those cases, as each turns on its particular facts. However, a case that does warrant discussion is R. v. Teske (2005), 32 C.R. (6th) 103 (Ont. C.A.), affirming [2001] O.J. No. 1898 (S.C.J.), as it involves the burning of a body and was relied on by the trial judge.

[62]         Mr. Teske was charged with the second degree murder of his wife. At the conclusion of the Crown’s case, he conceded that the evidence adduced was sufficient to convict him of manslaughter but argued that it was not sufficient to prove that he had the requisite mens rea for second degree murder. The forensic evidence established that Mrs. Teske was killed in the family residence, having been struck at least twice with medium velocity blows. She was struck the first time while in the kitchen doorway and again while lying on the basement floor underneath the stairs. In addition to cleaning up the blood in the residence, Mr. Teske burned his wife’s body in the backyard during the night and then disposed of her remains in a ditch. Because of the condition of the body, the exact cause of death could not be determined.

[63]         In convicting Mr. Teske of murder, the trial judge considered the steps he had taken to dispose of his wife’s body as probative of his intention at the time she was killed. In part, the judge said:

[121]    The most brazen part of his plan was to cremate his wife. His plan was to remove his wife's dead body from the equation. That involved quite a bit of unusual activity and risk. It had to be done at night since carrying the body out of the house to the fire included a higher risk of being seen in the process. And as the evidence discloses, the duration of the fire was a risk factor as well as the foul smell associated with the burning of a human body. He carried out his plan despite the risks. Why would he go to this extreme to dispose of his wife's body?  The most obvious answer is to make sure it could never provide investigators the opportunity of determining her cause of death. That would be too incriminating. Otherwise, he could have buried her remains. But that included the risk she could conceivably be subsequently found. The cremation scenario eliminated that possibility.

...

[131]    ... When one looks at the elaborate plan put in place by the accused after his wife's death on September 13, 1998, such conduct is highly incriminating. This was not conduct that occurs after the commission of the offence, such as leaving the scene or lying about some events. The conduct here cannot be consistent with any other rational conclusion. And the extensive nature of the conduct is probative of the level of culpability of the accused. Especially his action of disposing of her body the way he did. In my view, the post offence conduct, in the circumstances described, show the accused had more to hide than that he had caused her death without intending to do so.

[Emphasis added.]

[64]         On appeal, Mr. Teske argued that the trial judge erred in using the burning of the body as after-the-fact conduct from which the mens rea for murder could be inferred. In dismissing that ground of appeal, Mr. Justice Doherty held that the inference the judge drew was a reasonable one in the circumstance:

[86]      The trial judge found that the appellant's course of conduct from the time he killed his wife on Sunday evening until his arrest some four days later was consistent with the conduct of a person who had intentionally inflicted serious injuries on his wife and then went to great length to try to cover up what he had done and to develop an “innocent” explanation for his wife’s disappearance. For example, the trial judge’s conclusion that the appellant’s cremation of his wife’s body, which took several hours and created a strong stench, was a calculated and risky attempt to ensure that the police would be unable to determine the cause of Mrs. Teske’s death and the exact nature of her injuries. Proof of those facts could have gone a long way to determining whether the appellant acted with the intent required by s. 229(a)(ii) when he caused his wife's death. As a matter of common sense, it is reasonable to infer that someone who destroys a body after causing the death of that person does so because he knows that the victim suffered injuries that are inconsistent with a non-intentional cause of death.

[87]      The appellant engaged in an elaborate cover-up of his wife’s killing. Faced with this evidence, the trial judge inferred that the appellant had engaged in this concerted effort to cover up his wife's death because he had deliberately inflicted serious bodily harm likely to cause death. I think this was an eminently reasonable inference. More to the point, once it is acknowledged that the inference could be drawn, it was for the trier of fact to decide whether the inference should be drawn: R. v. Trochym [(2004), 186 C.C.C. (3d) 417 (Ont. C.A.) at para. 25 [subsequently reserved on other grounds:  2007 SCC 6, [2007] 1 S.C.R. 239].

[Emphasis added.]

[65]         I have underscored a sentence in the immediately preceding quotation as I wish to make clear that I have not found it necessary to either agree or disagree with the general proposition stated therein. I am aware that in this Court’s judgment in White, Madam Justice Ryan quoted that sentence with approval:  para. 126. However, given that White did not involve the burning of a body, I consider her endorsement of that general proposition to be obiter. Further, it is important to keep in mind that in Teske the burning of the body was just one of several things done as part of what was described as an “elaborate plan” to cover up the victim’s death. As discussed by Rothstein J. in White, after-the-fact conduct assessments are fact specific.

[66]         The person responsible for Ms. Panghali’s death attempted to destroy the body by lighting a fire on a public beach (as opposed to abandoning or burying it in an isolated location). In other words, whoever killed her was so concerned about the possibility of the body being discovered intact that he or she was prepared to take a considerable risk. That fires were sometimes seen on that beach does not diminish that risk.

[67]         More importantly, in the case at bar, the cause of death is known:  manual strangulation involving the application of considerable force for at least several seconds. Thus, while the burning of the body alone may not be probative on the issue of intention, it is probative of intention when considered in combination with the evidence about the violent means used to cause death.

[68]         In my view, the totality of the evidence supports the inference that Ms. Panghali’s body was burned not just to conceal the fact that she had been killed, or to conceal evidence that might reveal who killed her, but to conceal the circumstances of the death. Having drawn that inference, the trial judge was entitled to consider that fact in deciding the mens rea issue.

[69]         I would, accordingly, dismiss this ground of appeal.

Admission of Recognition Evidence

[70]         As previously mentioned, the trial judge ruled admissible evidence given by one of the police officers involved in the investigation and several long-time friends and/or colleagues of Mr. Panghali, that he is the man in the convenience store video. The judge’s reasons are indexed as 2010 BCSC 1710.

[71]         In objecting to the admission of this recognition evidence at trial, Mr. Panghali submitted that in R. v. Leaney, [1989] 2 S.C.R. 393, Madam Justice McLachlin, as she then was, implicitly adopted the two criteria for admission of recognition evidence set out by Mr. Justice Harradence in the judgment appealed from, i.e., R. v. Leaney (1987), 38 C.C.C. (3d) 263 at 278 (Alta. C.A.):

First the witness must be sufficiently familiar with the accused so as to be aware of the unique features which form the basis of the opinion. Second, the witness must be able to state with particularity what the idiosyncrasies are and show where and how they are revealed on the video tape.

[72]         The trial judge was not persuaded that Harradence J.A.’s criteria represented the governing test. Rather, she held that the threshold for admission of recognition evidence “requires only that the witness be in a better position than the trier of fact to make the recognition”:  para. 30.

[73]         Mr. Panghali submits that the trial judge erred in rejecting the test set out by Harradence J.A. In support of that submission, he refers to a number of judgments which discuss the admissibility of recognition evidence. Most of them were considered by the trial judge. The only appellate decision Mr. Panghali cites is R. v. Brown (2006), 215 C.C.C. (3d) 330 (Ont. C.A.), a case which he acknowledges does not specifically delineate the applicable test.

[74]         I do not find it necessary in this case to pronounce on the test to be applied to the admission of recognition evidence. That is because it is clear from the trial judge’s reasons that, before considering the impugned recognition evidence, she determined, from her own independent examination of the videos and photographs that Mr. Panghali is the man in the convenience store video. In that respect, the present case is on all fours with Leaney.

[75]         In Leaney, the trial judge, based on his own observations of Mr. Leaney during the course of a 16-day trial, concluded that Mr. Leaney was the person depicted in a crime-in-progress video. Having made that determination, the judge went on to consider recognition evidence given by police officers that, on appeal, was ruled inadmissible. In affirming Mr. Leaney’s conviction for breaking and entering, McLachlin J. described the wrongly admitted evidence as “mere surplusage”: p. 415.

[76]         More recently, in R. v. Nikolovski, [1996] 3 S.C.R. 1197, the Supreme Court of Canada affirmed a conviction for robbery based solely on the trial judge’s comparison of the person depicted in a crime-in-progress video with Mr. Nikolovski who was sitting in the courtroom. In so doing, Mr. Justice Cory said this about appellate review of such decisions (at para. 23):

If an appellate court, upon a review of the tape, is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accused as the person depicted in the videotape.

And at para. 34:

I viewed the tape and it is indeed of excellent quality and great clarity. The accused is depicted for a significant period of time. At one point, it is almost as though there was a close-up of the accused taken specifically for identification purposes. There is certainly more than adequate evidence on the tape itself from which the trial judge could determine whether or not the person before her was the one who committed the robbery.

[77]         In my view, the principles that have been set out with respect to a trial judge determining whether the accused in the courtroom is the person depicted in a video or photograph apply equally when that determination involves comparing a known image of an accused with an “unknown” image. In the present case it was, of course, not possible for the trial judge to undertake a direct comparison of the convenience store video with Mr. Panghali in the courtroom, as his appearance had changed substantially from what it was at the time the video was taken.

[78]         I have viewed the convenience store video and related photographs, the Brewster’s Pub video, and a photograph of Mr. Panghali taken at the October 23, 2006 press conference. Some of the convenience store videos and photographs are clear and sharp, and provide a good view of the “unknown” man’s build, facial features and turban. The Brewster’s Pub video and photographs are of lesser quality, but it is not disputed that Mr. Panghali is the person depicted in them. The press-conference photograph contains a clear and sharp image of Mr. Panghali’s head and shoulders from the neck up, with his facial features and turban plainly visible.

[79]         Having viewed the above mentioned items, I did not find it necessary to also view the videos from the police interviews and the press conference. The reasonableness of the trial judge’s conclusion that Mr. Panghali is the man in the convenience store video is fully supported by a comparison of the images in that video, and related photographs, with the press-conference photograph. I am unable to find any palpable and overriding error in that finding of fact. Indeed, like the trial judge, I am “confident” that Mr. Panghali is the person in that video.

[80]         I would, accordingly, dismiss this ground of appeal.

The Hematoma Evidence

[81]         As previously mentioned, the trial judge permitted the Crown to tender evidence from Dr. Lee that he observed an “apparent hematoma” in the perineum area of Ms. Panghali’s body together with evidence from both Dr. Lee and Dr. Cundiff as to what would have caused that hematoma. However, the judge ultimately found Dr. Lee’s evidence as to the presence of the hematoma “unsafe to rely on” and, therefore, disregarded it and the evidence as to its cause in coming to her verdict. On appeal, Mr. Panghali says that the trial judge erred in admitting all of the evidence concerning the hematoma. He further says that even though that evidence played no role in the judge’s final determination, its admission caused him prejudice and gave rise to a miscarriage of justice. In particular, he contends that its inclusion in the Crown’s case could have affected his decision not to testify.

[82]         Dr. Lee’s qualifications to give opinion evidence in the area of forensic pathology were not disputed by Mr. Panghali. Crown counsel began his examination of Dr. Lee by tendering as exhibits Dr. Lee’s curriculum vitae, his autopsy report, and his working notes from the autopsy. Crown counsel then advised the trial judge that Mr. Panghali wished to challenge the admissibility of some of Dr. Lee’s evidence and that, in the circumstances, it would be efficacious to have all of that evidence heard on a voir dire. Crown counsel further stated that the voir dire should also encompass the testimony of Dr. Cundiff, whom the Crown intended to ask hypothetical questions based on Dr. Lee’s evidence as to what he observed during the autopsy. With the agreement of Mr. Panghali’s counsel, the trial judge declared a voir dire.

[83]         In his working notes, Dr. Lee wrote, “apparent hematoma in perineum”. In the autopsy report, under the heading “Description of Thermal Injuries” he wrote, “There appears to be some dried blood in the perineum”. Dr. Lee did not order a microscopic examination of the perineum, nor were there any pictures taken of that area.

[84]         Dr. Lee said that a hematoma “is simply a collection of blood.”  When asked, in-chief, why he had used the word “apparent”, Dr. Lee stated:

A          Well, the bigger problem was that because the body was so badly burnt and the tissues were so badly damaged, it becomes very difficult to really assess the tissues simply because they are so badly damaged by fire. It’s - - obviously it’s much easier in a body that’s not burnt to determine injuries, and so on.

Q         And with respect to the haematoma in the perineum of which you speak, could you see it?

A          Yes.

Q         Do you have a memory of how big it was?

A          I can’t recall how big it is. All I recall is that it was - - it was somewhat unusual to see haemorrhage in any areas other than the head in a fire. The other concern I had was because she was pregnant and I don’t have a lot of experience of autopsying pregnant individuals, I wasn’t quite sure whether or not a pregnant uterus and a pregnant pelvic area had any - - anything different that a non-pregnant uterus and a non-pregnant pelvic area. So I wasn’t sure whether the pregnancy had anything to do with the apparent haemorrhage in that region.

[85]         Dr. Lee further stated, in-chief, that if pregnancy had nothing to do with the hematoma he observed, then he was of the opinion that it would have occurred prior to death, and would have been caused by “some sort of traumatic injury, either a blunt force injury or some sort of penetrating injury.”

[86]         In cross-examination, Dr. Lee was vigorously challenged about his observations of the perineum. That cross-examination included the following exchange:

Q         Let me ask you this. Apparent, apparently, appear, all the same root word, correct?

A          Yes.

Q         Connotes some uncertainty; you agree?

A          Yes, in the sense of I guess interpretation. It’s something that I saw. The question then is what exactly did I see in terms of what does it mean. You know, my biggest problem was simply that there was so much tissue absent that it then becomes very difficult to then interpret findings in that area. And that’s why I used the word apparent haematoma and it appears to be bleeding there.

Q         Right. And I think you’ve already expressed this – correct me if I’m wrong – that there is some uncertainty about whether what you saw was a haematoma, correct.

A          Yes.

[87]         Dr. Cundiff testified that a hematoma in the perineum of the kind described by Dr. Lee would have been caused by trauma before death, either from the insertion of an object or by an external force, such as a severe kick. He said that “a bruise is a haematoma, but in medicine, it’s generally used to describe something that is bigger than what we use the term ‘bruise’ in common-day language”.

[88]         During cross-examination, Dr. Cundiff was asked about a telephone conversation he had with Dr. Lee to obtain further information about what Dr. Lee saw during the autopsy. Based on their discussions, Dr. Cundiff believed that the hematoma Dr. Lee saw was in the paracolpium, an area contiguous with the perineum.

[89]         At the conclusion of the voir dire, Mr. Panghali asked the trial judge to exercise her gatekeeper function and to exclude all of the evidence relating to the hematoma on the basis that it was opinion evidence whose probative value did not outweigh its prejudicial effect. He referred to R. v. Mohan, [1994] 2 S.C.R. 9, in which the Supreme Court of Canada set out the criteria for the admission of expert opinion evidence. He also referred to the report of the Inquiry into Pediatric Forensic Pathology in Ontario: Report (Toronto: Ontario Ministry of the Attorney General, 2008), otherwise known as the Goudge Report. That inquiry investigated serious errors in the opinion evidence of a forensic pathologist that resulted in a number of wrongful convictions.

[90]         In admitting the evidence, the trial judge said this (2010 BCSC 1836):

[24]      ... I am not persuaded at this stage in the trial that the evidence here in issue will have a prejudicial effect outweighing any probative value it may have. I am alive to the risks of which Commission Goudge cautions. Concerns about the evidence having a distorting or inflammatory effect in the fact-finding process do not arise in this trial by judge alone. While the admission of the evidence may bear on the shape and substance of the remainder of the trial, no specific resulting prejudice to Mr. Panghali is delineated.

[25]      I cannot accept Mr. Tammen’s further submission that the proposed evidence is irrelevant and unnecessary because it would relate to no element of the offence charged, Mr. Panghali being charged with second degree murder and not first degree murder, to which a potential sexual assault would directly relate. If the evidence is accepted, it would bear directly on the circumstances in which Ms. Panghali died, and might, in turn, cast light on other matters (such as intent) relating to the offender’s liability.

[26]      Nor can I agree that Drs. Lee and Cundiff lack sufficient qualifications to give the proposed evidence. Each is extremely well-qualified in his field of expertise. Each confined his evidence to subjects within his areas of expertise, which are well-established areas of specialized medical knowledge.

[27]      The evidence will be admitted. Its weight will be assessed in light of all the evidence at the end of the trial.

[91]         On appeal, Mr. Panghali renews his objection to Dr. Lee’s evidence that he observed a hematoma in the perineum. Mr. Panghali submits that evidence falls into the category of expert opinion evidence that is presumptively inadmissible unless the Crown is able to satisfy the criteria set out in Mohan.

[92]         In my view, Mr. Panghali’s argument fails because Dr. Lee’s evidence as to what he saw during the autopsy is in the realm of “fact”, not “opinion”. Although the evidence given by both Dr. Lee and Dr. Cundiff concerning possible causes of a hematoma in the perineum falls into the latter category, Dr. Lee’s evidence regarding the presence of a hematoma does not. That aspect of Dr. Lee’s evidence is no more an “opinion” than would be the evidence of a layperson who testified to having seen a bruise.

[93]         That not everything said by an expert in the witness box is an opinion was discussed in R. v. K.(A.) (1999), 137 C.C.C. (3d) 225 (Ont. C.A.), appeal quashed [2000] 1 S.C.R. v, wherein Madam Justice Charron, as she then was, said:

[72]      The line between fact and opinion must therefore be kept clearly in mind. A witness, who is an expert in a particular field, may be called simply to give evidence on the facts he or she has observed without offering an opinion based on those facts. To that extent, and if otherwise admissible, this evidence is not subject to the opinion rule. This would be the case, for example, where a treating physician is called to describe the injuries he or she observed on a patient without offering any opinion on the matter. It is only when a witness purports to give an opinion on certain facts that the opinion rule comes into play. If, in our example, the treating physician goes on to say that it is usual or unusual, as the case may be, to observe this kind of injury in a patient who alleges that sexual intercourse has taken place, the witness is offering opinion evidence and the evidence will be subject to the general rule of exclusion. It will only be admissible if certain established criteria are met.

[Emphasis added.]

See also:  McWilliams’ Canadian Criminal Evidence, vol. 1, 4th ed., loose-leaf (updated June 2012), (Aurora: Canada Law Book) at 12-3.

[94]         I would, accordingly, dismiss this ground of appeal.

Unreasonable Verdict

[95]         Mr. Panghali submits that the trial judge’s decision is unreasonable in two respects:  (a) in finding he was responsible for Ms. Panghali’s death and for burning her body (i.e., identity); and (b) in finding that the elements of second degree murder had been proven (i.e., mens rea). He relies on s. 686(1)(a)(i) of the Criminal Code, which permits an appellate court to set aside a conviction on “the ground that it is unreasonable or cannot be supported by the evidence”. The principles to be applied under that provision were recently summarized by Madam Justice Deschamps in R. v. R.P., 2012 SCC 22, 282 C.C.C. (3d) 435:

9          To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190).

[96]         In that the case against Mr. Panghali was based entirely on circumstantial evidence, the following from the judgment of Mr. Justice Low in R. v. Trevor, 2006 BCCA 91, 206 C.C.C. (3d) 370, leave ref’d [2006] 2 S.C.R. xiii, is apposite:

[11]      In the present case, proof of the element of lack of consent was based entirely on circumstantial evidence. Therefore, the following passage from the judgment of Finch C.J.B.C. in R. v. Robinson (2003), 176 C.C.C. (3d) 23, 2003 BCCA 353 is apt:

[38]      In R. v. Dhillon (2001), 158 C.C.C. (3d) 353 (B.C.C.A.), 2001 BCCA 555, Low J.A., writing for the Court, applied the standard of review to a circumstantial case as follows at [paragraph] 102:

Since the Crown’s case is entirely circumstantial, it seems to me that this court must determine whether a properly instructed jury, acting judicially, could have reasonably concluded that the only rational conclusion to be reached from the whole of the evidence is that the appellant murdered the victim.

[39]      In summary, the task of the appellate court is to examine the evidence, consider the effect of the evidence, and determine on the whole of the evidence whether the jury could have reasonably concluded that the only rational conclusion was the guilt of the appellant.

[40]      The test for an unreasonable verdict requires an assessment of the cumulative effect of all the evidence. It is not a piecemeal evaluation. . . .

[12]      To base a guilty verdict on circumstantial evidence the jury “must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts”:  see R. v. Cooper, [1978] 1 S.C.R. 860, (1977), 74 D.LR. (3d) 731. Under s. 686(1)(a)(i) of the Criminal Code, an appellate court must look at the whole of the evidence and determine, “through the lens of judicial experience”, whether the circumstantial evidence, considered and weighed cumulatively, rationally supports the guilty verdict.

[97]         Also pertinent are the following passages from judgments of this Court:

          R. v. To (1992), 16 B.C.A.C. 223

41        It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demand certainty.

          R. v. Wu, 2010 BCCA 589, 298 B.C.A.C. 84

[46]      In addition, that [the appellant] did not offer any explanation in the face of otherwise inculpatory facts is a matter this Court can consider in assessing the reasonableness of the verdict:  R. v. Noble, [1997] 1 S.C.R. 874 at paras. 101-103; R. v. G.L.J., [1997] B.C.J. No. 2994 at para. 31, 1997 CarswellBC 2892 (C.A.); [R. v. Li, R. v. Zheng, 2009 BCCA 21, 265 B.C.A.C. 110] at para. 26.

Identity

[98]         Mr. Panghali’s approach in challenging the finding on identity is to dissect and compartmentalize the various facts the trial judge took into consideration and then seek to minimize their individual significance. However, as indicated in the quotation from Trevor set out in para. 96 above, this is not the correct approach. Rather, the facts are to be considered in the context of the case as a whole. In the present case, the question is whether, on the facts found by the trial judge, she could reasonably conclude that the only rational conclusion was that Mr. Panghali was responsible for Ms. Panghali’s death and for burning her body.

[99]         In advancing this ground of appeal, Mr. Panghali submits that the trial judge erred in placing any weight on the “recognition evidence” given by those persons who identified him as the person in the convenience store video. Given that, as discussed above, the judge independently found as a fact that Mr. Panghali was the person in that video, that argument has no merit.

[100]     In finding that Mr. Panghali was responsible for Ms. Panghali’s death and for burning her body, the trial judge relied on the following facts:

(a)      Mr. Panghali went to the convenience store on the night of Ms. Panghali’s disappearance;

(b)      Mr. Panghali lied about having remained at home that night with his daughter;

(c)      Ms. Panghali had her cellular telephone with her when she left for the yoga class;

(d)      Mr. Panghali came into possession of Ms. Panghali’s cellular telephone within 15 hours of her disappearance;

(e)      Mr. Panghali repeatedly lied about being in possession of Ms. Panghali’s cellular telephone; and

(f)       Mr. Panghali delayed notifying the police of Ms. Panghali’s disappearance.

[101]     In addition, the trial judge considered the following facts as providing context to the overall factual matrix, although she did not attach much weight to them:

(a)      the location and condition of Ms. Panghali’s vehicle; and

(b)      Mr. Panghali’s conduct during police interviews, which appeared out of accord for a person whose spouse was missing.

[102]     The trial judge took a holistic approach to the facts and properly declined to consider in isolation the alternative explanations advanced by Mr. Panghali. She undertook a careful and detailed analysis of the proven facts, drew inferences from those facts, and articulated why and how she came to the conclusion she did on the issue of identity. That conclusion cannot be said to be unreasonable or unsupported by the evidence.

Mens Rea

[103]     The trial judge found Mr. Panghali guilty of second degree murder on the basis that he meant to cause Ms. Panghali bodily harm that he knew was likely to cause her death and was reckless whether death ensued. In reaching that conclusion the judge relied principally on:

(a)      the amount and duration of the force used in strangling Ms. Panghali to death; and

(b)      the burning of her body.

[104]     In addition, the trial judge found the negative statements Mr. Panghali made to the police about Ms. Panghali to have some probative value in regard to his state of mind, although she did not ascribe much weight to them.

[105]     Mr. Panghali submits that the evidence only supports a conviction for manslaughter. In other words, he says that even if the trial judge’s finding on identity is upheld, the evidence does not support the judge’s finding that when he strangled Ms. Panghali he had the subjective foresight that his actions would likely cause her death. In advancing this argument, Mr. Panghali focuses on the trial judge’s statement that the evidence of Dr. Lee “allows for the possibility that the manual strangulation ... lasted only for a matter of several seconds”:  para. 247. He also objects to the trial judge’s consideration of the burning of Ms. Panghali’s body as probative on the issue of intent. I have already rejected that latter argument.

[106]     Mr. Panghali’s submission fails to have regard to the totality of the evidence regarding the mechanism of death. As mentioned above (see paras. 23 – 25), Dr. Lee testified that a compression of the neck lasting 10 to 15 seconds will cause unconsciousness, but not permanent damage. However, death can occur if pressure continues to be applied. In this case, not only was pressure applied past the point at which Ms. Panghali became unconscious, but it was applied with considerable force, as evinced by the fractured hyoid bone.

[107]     The trial judge’s reference to “several seconds” has to be read in context. It follows immediately after the judge referred to Dr. Lee’s evidence that carotid sleeper holds can cause unconsciousness in 15 to 30 seconds and that death by strangulation can take “anywhere from several seconds to a few minutes”. When the reasons are read as a whole, it is apparent that the judge did not use the words “several seconds” to mean only a very few seconds. This is clear from what I consider to be a critical finding by her that, “The force here was considerable, applied to a much smaller person and for more than a fleeting period of time”:  para. 255.

[108]     The evidence regarding the mechanism of death and the effort to destroy that evidence supports the trial judge’s conclusion that Ms. Panghali’s death was not accidental, but was caused by the intentional application of force that Mr. Panghali knew was likely to cause death and in respect of which he was reckless about whether death would result.

[109]     As Mr. Panghali did not make submissions with respect to the trial judge’s consideration of his statements, I see no need to say much about them, other than to repeat that they were not significant to her conclusion on the mens rea question. It is apparent to me that had those statements never been made, the judge would have reached the same conclusion.

[110]     I would, accordingly, reject the argument that the finding of mens rea is unreasonable or unsupported by the evidence.

DISPOSITION

[111]     I would dismiss this appeal.

“The Honourable Mr. Justice Frankel”

I agree:

“The Honourable Mr. Justice Groberman”

I agree:

“The Honourable Mr. Justice Harris”