Murder conviction upheld amid witness concerns

Law360 Canada (August 2, 2024, 2:39 PM EDT) --

John L. Hill

After deliberating for four days in 2019, a St. Catharines, Ont., jury found Michael Joseph William Ball, 32, guilty of first-degree murder. His trial had been moved from Kitchener when a jury there could not reach a verdict on the murder charge, although they were willing to convict him of committing an indignity to a human body.

Ball, a drug dealer, suspected 28-year-old Erin Howlett of cheating on him. He choked Howlett to her death on June 27, 2013, in his basement apartment in Kitchener and then loaded her body into a duffle bag and tossed it into the Grand River; the decomposed corpse was found in the river the following July 5. His biggest problem was that he had an accomplice who testified against him at trial.

Ball appealed his conviction R. v. Ball, 2024 ONCA 574. The most damning evidence at trial was the testimony of Daniel Warwick, an admitted drug dealer. He claimed to have visited Hall on June 27 and discovered Howlett dead on Hall’s bed. Hall admitted to having choked her. The two men loaded the body into a duffle bag for disposal in the river. A forensic pathologist, Dr. Elena Bulaktina, testified that because of the advanced state of decomposition, she could not ascertain a cause of death. No lacerations or skin tears were observed. She could not rule out positional asphyxia while intoxicated as a cause of death. Inger Bugyra, a toxicologist, gave evidence that several drugs were detected in Howlett’s liver but could not determine the quantities of drugs consumed or when they were ingested.

Three grounds of appeal were advanced: (a) the trial judge failed to establish the standard of proof required to convict; (b) the trial judge failed to adequately caution the jury about relying on the evidence of an unsavoury witness; and (c) the trial judge refused the jury’s request to review Bulaktina’s evidence.

The court refused to intervene after considering the judge’s jury charge as a whole and noting that the standard of proof was raised several times while the defence made its closing statement. Although the trial judge did not use the usual wording on the standard of proof set out in R. v. W.(D,), [1991] 1 S.C.R. 742, the jury could adequately assess the defence theory that Howlett died from a drug overdose. A trial judge enjoys considerable discretion in a jury charge and is entitled to deference on appellate review (R. v. Daley, 2007 SCC 53; R. v. Goforth, 2022 SCC 25; R. v. Speers, 2017 ONCA 333).

The most crucial evidence responsible for the conviction came from Warwick. Defence counsel maintained that a warning should have been given in line with R. v. Smith, 2009 SCC 5, that where an unsavoury witness is an accomplice, that person might concoct a compelling story to implicate the accused falsely. In this case, the jury was given an adequate warning in line with R. v. Vetrovec, [1982] 1 SCR 811 and R. v. Khela, [2009] 1 S.C.R. 104, that Warwick was an unsavoury, unreliable witness whose evidence ought to be viewed with the greatest care and caution. Warwick had been extensively cross-examined at trial. The jury understood Warwick’s character and background and how that might affect his credibility and reliability. Further, the trial judge identified aspects of Warwick’s testimony that confirmed his evidence, such as where Ball disposed of the victim’s cellphone.

The third defence argument, that the judge refused the jury’s request to replay Bulaktina and Bugyra’s evidence, was also dismissed. The jury had requested a transcript but later advised the judge that what had been troubling them about the experts’ evidence was now resolved, and it would be unnecessary to comply with the original request. No substantial wrong or miscarriage of justice resulted from the judge’s handling of the request (R. v. Shortreed, (1990) 54 C.C.C. (3d) 292).

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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