In the Court of Appeal of Alberta

Citation: R. v. Svekla, 2011 ABCA 154

Date: 20110525
Docket: 0803-0173-A
Registry: Edmonton

Between:

Her Majesty the Queen

Respondent

- and -

Thomas George Svekla

Appellant

Restriction on Publication: By Court Order, information

that may identify the person described in this judgment as
Ms. J., may not be published, broadcast, or transmitted in any
manner. There is also a ban on publishing the contents of the
application for the publication ban or the evidence,
information or submissions at the hearing of the application.
See the Criminal Code, s. 486.4.

_______________________________________________________

The Court:
The Honourable Mr. Justice Jean Côté
The Honourable Mr. Justice Peter Costigan
The Honourable Mr. Justice Robert Graesser
_______________________________________________________

Memorandum of Judgment
 Appeal from the Conviction by
The Honourable Mr. Justice S.M. Sanderman
Dated the 3rd day of June, 2008
(Docket: 070004577Q1)
 _______________________________________________________

Memorandum of Judgment
_______________________________________________________

The Court:

A. Introduction

[1] This is an appeal by the accused from his conviction for second-degree murder. He was
convicted by a judge sitting alone, after a lengthy trial. The accused had been found with the body
of Theresa Innes in a hockey bag which he had been transporting. The accused did not testify,
although he had given numerous statements to police, some containing exculpatory explanations for
why he had possession of Ms. Innes’ body. He alleges that the trial judge’s reasons contain
significant errors, and that he should not have been convicted of murder.

[2] The accused’s position at trial was that there was a reasonable doubt as to whether he had
committed culpable homicide in relation to Ms. Innes’ death. Most of the evidence against him
consisted of post-offence conduct, and statements to third persons. His counsel argued that such
conduct did not point to culpable homicide. On this appeal, the accused’s position was that the post-
offence conduct was equally consistent with manslaughter, as with an intentional killing.

B. Grounds of Appeal

[3] The accused advances two arguments in support of his position that he should not have been
convicted of second-degree murder:

(a) that the trial judge erred in finding that the post-offence conduct proved that
the accused possessed the requisite intent for murder; and

(b) that the trial judge erred in drawing a negative inference from the accused’s
failure to admit manslaughter when being questioned by the police,
disregarding his right to silence.

However, counsel for the accused did not contest the trial judge’s other fact findings or inferences.

C. Facts

[4] The accused was charged with murdering two women. He “found” in the bush the body of
the first, Rachel Quinney. The body of the second, Theresa Innes, was found in a hockey bag in the
accused’s possession.

[5] The case for the second murder was circumstantial and based mainly on bizarre post-offence
conduct (including possession of the body) and statements made to third parties.
 Page: 2

[6] The accused was acquitted of any culpability with respect to Rachel Quinney; the trial judge
convicted him of second degree murder in the death of Theresa Innes.

[7] The medical examiner was unable to determine the cause of Ms. Innes’ death.
Decomposition had advanced to the point where toxicology was not helpful. The accused had
transported her body from Edmonton to his sister’s property in Fort Saskatchewan. When questioned
about the heavy hockey bag, the accused told his sister that it contained earth and compost worms.
Her husband eventually opened the bag and discovered what he believed to be a body. Police were
called; they examined the contents and determined that the bag contained human remains. The
medical examiner testified that the body was wrapped first in a shower curtain and then elaborately
bound with wire. It took him over an hour to cut all of the wires so he could examine the body. The
shower curtain was the accused’s.

[8] Ms. Innes had last been seen several months before her body was discovered. The medical
examiner believed that her body had been frozen for some time.

[9] The accused did not testify in his defence. (The witness with a fairly similar name was his
father.) There was evidence of numerous statements the accused made to the police. His story to
them had been that someone had planted Ms. Innes’ body in his truck. He was worried because he
was already being investigated in connection with Ms. Quinney’s death and when he found Ms.
Innes’ body in his truck, he panicked. That led to the wrapping of the body, its transportation and
the web of fabricated stories he told others, he said.

[10] The trial judge instructed himself under R. v. W.(D.) [1991] 1 S.C.R. 742, 122 N.R. 277. He
rejected the accused’s explanations (p. F21, lines 37-45). He considered the number of lies which
the accused had told police and others (pp. F23, F24), one of the more significant ones being that
he did not know Theresa Innes. In fact they had had a relationship some time before December 2005
when she was last seen.

[11] The issue was second-degree murder as opposed to manslaughter. Apart from completely
disbelieving everything which the accused had said to anyone about his involvement or lack of it
in Ms. Innes’ death, the trial judge relied on two types of evidence to convict the accused. That was
three statements, and his post-offence conduct. The statements were as follows:

(a) The accused told a co-worker, Mr. Janke, that he had “a dark past – he had
killed someone” (this was after Ms. Innes’ disappearance, but before she had
been reported missing).

(b) The accused told a friend, Ms. Kroetsch (after he had been arrested and while
in the remand centre) about a former girlfriend, Ms. J. He said that she had
been the “first one he had hurt and had been the first to see the bogeyman”
– and he was glad that he hadn’t hurt her any worse than he had. This was
 Page: 3

right after he had told the friend that he had only transported the body (p.
F27, lines 23-38).

(c) The accused spoke to an acquaintance, Mr. Cochran, in early January 2006,
shortly after Ms. Innes had been last seen and before there was any particular
suspicion that she was dead. The accused suggested that someone was
spreading rumors that this acquaintance had killed Ms. Innes.

[12] The former girlfriend, Ms. J., testified herself. She described a frightening incident with the
accused, which was presumably what he had alluded to when he related to Ms. Kroetsch the story
about the bogeyman. Ms. J. was viciously attacked with no apparent reason by the accused, her then
friend – some 20 years before Ms. Innes’ disappearance.

D. The Proper Approach on Appeal

[13] It would be tempting for the Court of Appeal just to go to the merits and decide whether it
has a reasonable doubt about guilt. Or to decide whether it thinks that the trial judge, or a notional
jury, should have a reasonable doubt. If one were to follow that route, one could then think that the
state of mind of a person who keeps a dead body with him for months, carefully and tightly
wrapped, is hard to know. That in turn could lead one to a reasonable doubt about what the accused
knew or thought.

[14] However, we have concluded that that approach is not preferable, nor even legally permitted.
There are three reasons for our eschewing such reasoning:

(a) This appeal attacks the factual basis for the conviction, and so the standard
of appellate review is very stiff: see R. v. Yebes [1987] 2 S.C.R. 168, 78 N.R.
351, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 252 N.R. 204,
reh. den. 12 Oct ’00 (S.C.C.).

(b) One cannot assess or act upon what is reasonable doubt one fact at a time,
nor even one factual issue at a time; doubt must be assessed on all the
evidence for each legal element of the charge or defence: R. v. Morin [1988]
2 S.C.R. 345, 88 N.R. 161 (paras. 19, 26-41); R. v. White [1998] 2 S.C.R. 72,
94, 227 N.R. 326 (para. 39) (a case on post-offence conduct).

(c) The live issue in this case is mens rea: whether this crime was murder (as the
Crown contends), or manslaughter (as the defence contends). But preserving
and carrying about the victim’s body is not the only evidence of that. There
is also evidence of the three statements which the accused made to lay people
after the wrongful death in question.
 Page: 4

[15] Reason (b), the Morin rule, is based on simple logic. A criminal trial usually features a
number of independent pieces of evidence, each tending to suggest the guilt of the accused. Very
often no one piece of evidence is strong enough to exclude a reasonable doubt. Indeed, any one piece
of evidence may not even produce a probability of guilt. But the cumulative effect of all the pieces
of evidence may be overwhelming. One piece of evidence could well be a coincidence (or error).
But the chance that a significant number of independent pieces of evidence are coincidences (or
errors) may be demonstrably minute. That is often elementary probabilities arithmetic.

[16] Though the trial judge did not hear live evidence from the accused, he heard a great deal of
evidence about the accused, his actions, personality, communications, and motivations. The judge
felt confident in making some strong fact findings about the accused’s personality, credibility and
motives. How a person would likely act after he committed some crime, or when he found himself
in very suspicious circumstances, doubtless varies from person to person. So knowing a good deal
about that person would greatly assist one to assess that person’s probable or improbable conduct.
This judge heard over 100 live witnesses, a great many of whom knew the accused, some knowing
him very well. It would be impossible for a judge to recount in the reasons for judgment all (or even
most) of the details of how so many witnesses built up a mosaic of the accused’s personality and his
likely behavior.

[17] Because of the applicability of s. 686 (1)(b)(iii) of the Criminal Code to all appeals from
conviction, the standard of review remains as set out in Yebes and Biniaris, supra, regardless of the
“palpable and overriding error” standard discussed in Housen v. Nikolaisen, 2002 SCC 33, [2002]
2 S.C.R. 235, 286 N.R. 1.

[18] The Yebes/Biniaris standard of appellate review comes close to asking whether, had there
been a jury, the case should have been left to them. To be more specific, it asks whether there was
evidence on which a notional jury, “properly instructed [and] acting judicially, could reasonably
have rendered” a conviction: R. v. Biniaris, supra (paras. 36, 42). Though evidence should be read
in the context of other evidence, not in isolation, the Supreme Court of Canada cases applying this
Yebes test have often focussed primarily on the evidence tending to suggest guilt.

[19] The Biniaris test for appellate review contemplates that to a degree the Court of Appeal will
review weight of evidence, but only within fairly narrow limits:

(a) “the limits of appellate disadvantage” (Biniaris, para. 36);

(b) vague unease or lurking doubt by the Court of Appeal is not enough ground
to upset a verdict (id. at para. 38);

(c) the Court of Appeal needs something else which gives an articulable ground
to interfere, such as types of evidence often recognized to be unreliable, or
common bias against certain explanations or defences, or a conclusion at trial
 Page: 5

which conflicts with the bulk of accumulated judicial experience (id. at paras.
39-42);

(d) evidence tending to suggest that the accused is not guilty is weighed only to
a limited extent;

(e) the appellate judge’s own personal experience and insight is not enough to
interfere (id. at para. 42);

(f) where the trial judge was alive to the issues, it is not enough that the Court
of Appeal has a doubt where the trial judge did not (R. v. A.G., 2000 SCC 17,
[2000] 1 S.C.R. 439, 452 (para. 29), 252 N.R. 272, 285 (para. 24), a
companion case decided along with Biniaris).

[20] Of course a trial judge ordinarily gives reasons, and those may display a flaw in reasoning
or in reciting the evidence which permits the Court of Appeal to intervene, and confirms the
verdict’s unreasonableness (Biniaris, para. 37).

E. Latest Binding Authority

[21] The trial decision was rendered before the recent Supreme Court of Canada decision in R.
v. White, 2011 SCC 13 (a different White case from the one discussed by the trial judge). The
Supreme Court of Canada split 4-2-3: Rothstein J. for himself, LeBel, Abella and Cromwell JJ.;
Charron J. for herself and Deschamps J. concurring in the result; and Binnie J. for himself,
McLaughlin C.J. and Fish J., dissenting.

[22] In White, the issue was whether the trial judge should have told the jury that the evidence
of post-offence conduct was irrelevant and was of no probative value in choosing between murder
and manslaughter.

[23] Much of the debate in the Supreme Court of Canada was whether or not certain flight
evidence was demeanor evidence and not relevant to the issue of intent. But here, there was no live
issue about demeanor. (The only trial issue of demeanor was that the accused had acted differently
when he had gone to the police when he “found” Rachel Quinney’s body than he did when he was
dealing with having “found” Theresa Innes’ supposedly planted body).

[24] The essence of Rothstein J.’s 2011 majority decision is found in its para. 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
 Page: 6

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.

[25] Ultimately, we do not think the 2011 White decision changes the law in any way. Counsel
for the accused agrees. White turned on its facts and on the Supreme Court’s interpretation of the
specific words used in the charge, as well as characterization of flight evidence as demeanor or not.

[26] If we apply White (2011) to the present case, it shows that the trial judge was entitled to use
the post-offence conduct to infer intent or state of mind, if the circumstances of the case permitted
him to do so. Counsel for the accused concedes this proposition. The Supreme Court distinguished
Arcangioli on its facts, not on the law.

F. The Central Question

[27] In this case, could reasonable jurors conclude judicially that the accused’s unusual treatment
of the victim’s body tells something useful about his knowledge or state of mind? Could they feel
that that evidence has serious weight? Could such jurors think that the three separate out-of-court
utterances of the accused have real weight in suggesting murder? Could they feel that the
combination of the two independent types of evidence excludes a reasonable doubt? After anxious
consideration, we have concluded that the answer to all those questions is yes. Though a reasonable
doubt would likely have been possible (so far as we can tell without having seen and heard all those
witnesses), such a doubt was not mandatory. Finding guilt here beyond a reasonable doubt is neither
illogical, nor contrary to any piece of evidence. It is not based on a mere scintilla of evidence, but
rather on a number of separate pieces of evidence. There is no significant evidence at all to the
contrary. There is no law of human behavior which the trial judge’s fact findings is even alleged to
violate.

[28] We can apply Rothstein J.’s analogy at para. 68 of White, where he contrasted Arcangioli
with White:

Would the accused have been equally likely to flee the scene
whether he was guilty of murder or of manslaughter? (in Arcangioli)

Would the accused have been equally likely to hesitate before fleeing
had he shot the victim intentionally or accidentally? . . .
(para. 68 of White)

When adapted to the present case, this becomes the following question:
 Page: 7

Would the accused have been equally likely to do or utter the acts of
post-offence conduct being relied on by the Crown whether he was
guilty of murder or manslaughter?

[29] Though use of decided cases as factual precedent has little weight, it may be worth noting
that the Crown’s factum cites many cases where the Supreme Court of Canada, the Ontario Court
of Appeal, and this Court have upheld convictions for murder based in part on elaborate post-offence
actions to conceal the evidence (paras. 32-41). We mention that because the appellant’s factum tries
to use reported cases for factual propositions, such as suggesting that post-offence conduct never
can be of real help on the murder vs. manslaughter issue, being equally consistent with both. In our
view, no such blanket rule is possible; it depends upon the circumstances. As Rothstein J. says in
White (2011), this is a factual topic for a properly-instructed trial judge (or jury), not for a Court of
Appeal.

[30] Strong evidence here is the accused’s statement to Ms. Kroetsch, who had visited him in the
remand centre. He referred to his girlfriend of 20 years ago, Ms. J., as “the first one I hurt” and the
first one who saw the “bogeyman”.

[31] The former girlfriend, Ms. J., testified about that incident (not as similar fact evidence, but
rather as being necessary to put Ms. Kroetsch’s testimony about the bogeyman into context). The
statements to Ms. Kroetsch may be viewed as evidence of that intent. “The first one I hurt” is
consistent with a deliberate intention to harm, as opposed to an accident. Use of the word
“bogeyman” suggests deliberateness. It is quite different from the accused saying (for instance) that
she was the first person who saw the “klutz”, or saw the accident-prone or the unlucky individual.
That is especially so when one puts that statement in the context of what the ex-girlfriend said about
an unprovoked, out-of-the-blue, violent attack.

[32] If one read in isolation one paragraph of the trial judge’s reasons, one might wonder whether
the trial judge based his finding of the necessary intent for murder entirely on wrapping and
concealing the body. (That paragraph is p. F30, ll. 17-28.)

[33] However, that paragraph does not expressly talk of concealing or handling the body. It says
“goes to this length to cover up wrongdoing . . . post-offence conduct is so elaborate . . .”. The words
“so elaborate” suggest more multi-faceted conduct.

[34] Immediately preceding that paragraph are two brief transition paragraphs. Immediately
before them are four pages (pp. F27-30) describing a number of aspects of the accused’s conduct
after the death in question. The trial judge introduces that discussion (p. F27, ll. 16-22) with these
words:

. . . his extensive post-offence conduct takes the two forms . . . the

second form is comprised of the elaborate series of concoctions
designed by him to prevent detection.
 Page: 8

[35] The trial judge then describes three conversations which the accused had after the death. Two
are admissions of guilt described in para. 11(a), (b) of this judgment.

[36] The third conversation is somewhat different and is the last one described in the trial judge’s
Reasons. So it comes closest to and shortly before the impugned paragraph (p. F30, ll. 17-28) giving
the conclusion. The third conversation purported to be a friendly warning to Mr. Cochran that
someone else was spreading rumors that Mr. Cochran had killed the deceased (Ms. Innes).

[37] That “warning” was significant for two reasons, said the trial judge. First, it was given before
anyone else knew of the death. Second, the judge said, “this is another example of Mr. Svekla’s
extensive post-offence conduct designed to hide his involvement in Mr. [sic] Innes’s death and
possibly put the blame on someone else.” (p. F29, lines 26-29).

[38] Therefore that is what the trial judge was expressly including when very shortly afterwards
his impugned paragraph (p. F30, ll. 17-28) opened with the words “goes to this length to cover up
wrongdoing . . . post-offence conduct is so elaborate”. So that was not confined to wrapping and
hiding the body. It included at least the third warning conversation with Mr. Cochran, and indeed
quite possibly the other two conversations with others containing admissions.

[39] There is no significant silence about conversations in the impugned paragraph (p. F30, ll. 17-
28) because there is no such silence there. That paragraph does refer to the conversations (or at the
very least the Cochran one).

[40] And of course in the category of elaborate cover-up and deception, the trial judge’s Reasons
include the accused’s many many demonstrable lies to the police, which the Reasons describe at
length.

[41] It is axiomatic that reasons for judgment must be read generously and as a whole, not bit by
bit in isolation.

[42] Those statements by the accused were highly relevant, properly admitted, and pointed to
intentional behavior (whether or not all the other post-offence conduct did so).

[43] It is reasonable to infer that the trial judge based his conviction upon all the statements and
post-offence conduct, not just the elaborate wrapping of the body. That evidence was properly
considered by the trial judge as going to intent.

[44] At the end, the trial judge was entitled to find that the statements to Ms. Kroetsch were more
consistent with murder than with manslaughter. There is nothing unreasonable about that. Combined
with the other statements and post-offence conduct, the conclusion of guilt beyond a reasonable
doubt of murder was even more clearly open to the trial judge.
 Page: 9

G. Other Topics

[45] The defence complains to us that the trial judge should not have referred to the accused’s
failure to “repudiate” manslaughter when that option was presented to him during his interrogation
by the police. But the trial judge did not use that fact in his reasoning process, and any error there
would thus be of no consequence. Indeed, it is very hard to characterize the accused’s voluntary
lying as the exercise of a right to remain silent. So even a mistaken obiter dictum is hard to find here.

[46] Neither the factum nor the oral argument of the accused’s counsel suggests that the adequacy
of the trial judge’s written reasons was a ground of appeal, nor made meaningful appellate review
impossible.

H. Conclusion

[47] The appeal from conviction is dismissed.

Appeal heard on May 4, 2011

Memorandum filed at Edmonton, Alberta

this 25th day of May, 2011

Côté J.A.

Costigan J.A.

Graesser J.
 Page: 10

Appearances:

D.C. Marriott, Q.C.

J.B. Dartana
for the Respondent

L.L. Garcia
for the Appellant