TORONTO — Ontario's highest court has ordered new, separate trials for a man convicted of first-degree murder in the killing of two sex workers in Niagara Region over more than two years, saying the cases should not have been tried together.
Michael Durant challenged his 2012 convictions in the deaths of two women identified only as D.D. and C.C., arguing the trial judge made several errors in conducting the legal proceedings.
Court documents show the two women died from blunt force trauma to the head.
D.D., who was 32, was found in a ditch in Welland, Ont., in August 2003. Twenty-two-year-old C.C.was found in a grassy wooded area in Niagara Falls, Ont., in January 2006.
But while the two cases have some common features, the Court of Appeal for Ontario says the trial judge was wrong to admit the evidence on each killing as evidence of a similar act on the other, and to proceed with only one trial.
In a decision released Monday, the court says the judge also erred in refusing to dismiss a juror who knew C.C.'s stepmother and in failing to leave manslaughter as an available verdict in D.D.'s death.
It says, however, that the judge did not err in admitting some of Durant's private conversations that were intercepted by police as evidence in the trial.
Court documents say D.D. was struck at the back of the head with something that appeared to be a hammer or a similar weapon. Her body showed no defensive injuries and there was no evidence of sexual assault, the documents say. She had consumed cocaine in the 12 to 24 hours before her death.
Durant's ex-wife testified at trial that she helped him hide the body of a woman he admitted to having hit over the head with a hammer, they say. She said he told her it happened after D.D. tried to steal his cocaine and to hit him with a hammer.
Forensic experts found about 20 bloodstains on a chair in his garage and D.D. could not be excluded as the source of the blood, the documents say.
When C.C. was found, her body was wrapped in two white bedsheets and there was duct tape wrapped loosely around her neck and ankle, they say.
She had several lacerations and fractures to her face and scalp, a puncture wound in her arm and a single sperm cell in her mouth, the documents say. She was under the influence of cocaine.
In that case, the Crown relied on evidence that C.C. was last seen with Durant, that he had access to vacant buildings where he could have stored her body and to the kind of sheets that were wrapped around her body, the documents say.
There were also three spatters of C.C.'s blood on the underside of stair risers in his basement, though an expert testified that could have stemmed from intravenous drug use. Court also heard Durant and a friend had cleaned the basement with muriatic acid, which breaks down DNA, the documents say.
The appeal court said evidence of similar fact invites jurors to draw from previous incidents that the accused has a specific character, which would then support an inference of guilt in a specific offence.
When this type of evidence is provided in an effort to prove identity, there must be a "striking similarity" between the incidents and how the offences were committed, the court said. That rules out coincidence as an explanation and allows the judge to determine whether the same person was likely responsible for those acts, it said.
That threshold was not met in Durant's case, the appeal court said.
"There was nothing of a signature here. The only cogent commonality was the profile of the deceased and this was simply not good enough," it said.
"The similarities were at best generic. Both deceased were sex trade workers addicted to cocaine, a drug found in their bodies. Each died of blunt force trauma inflicted by a blunt instrument without identifiable features. The circumstances in which the bodies were disposed of also differed, as did the time after death within which the bodies were dumped."
The evidence of similar acts was "a controlling factor" in the judge's decision not to order separate trials, and when that evidence is removed, it is clear the two cases should be severed, the court said.
The appeal court pointed to the fact that Durant indicated he may testify on the charge related to D.D. but not the one related to C.C., and that the evidence on the former charge was "significantly stronger" than on the other, as further reasons for separate trials.
As for the issue of the juror, the appeal court said the trial court failed to give appropriate consideration to the important of the appearance of fairness in making his decision.
"The effect of the trial judge's decision was to permit a juror, who had some kind of connection to the stepmother of one of the victims, a person whose name was mentioned as a potential Crown witness and one who had vigorously advocated against what she considered unfair treatment by the justice system of sex trade workers, to determine the guilt of the person accused of murdering her stepdaughter," it wrote.
It noted that the stepmother was the one who flagged the connection and both the Crown and defence supported dismissing the juror.
Both sides also argued that manslaughter should be left on the table on the charge relating to D.D., but the judge did not include it in his instructions to the jury, the documents say.
The appeal court said though a verdict of manslaughter is inconsistent with the defence's position that Durant did not kill D.D., what matters is whether the evidence presented at trial gives it an "air of reality," it said.
The narrative provided by Durant's ex-wife gave an air of reality that could lead a jury to several potential verdicts, it said.
