New trial ordered for Sask. man convicted of second-degree murder


The Supreme Court ruled the trial judge should have warned the jury about the frailties surrounding witness identification of the accused.

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The Supreme Court of Canada has ordered a new trial for a Saskatchewan man convicted of second-degree murder in the death of his friend.

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In 2018, a Prince Albert Queen’s Bench jury convicted Ryan David Clark in the death of Christopher Durocher, who was found beaten to death in his camper trailer on his parent’s property near Christopher Lake on Oct. 2, 2016.

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The main issue at trial was the identity of the person who killed him.

Clark asked the country’s highest court to overturn the Saskatchewan Court of Appeal’s decision to uphold his murder conviction. He appealed on the grounds that the eyewitness testimony that Clark caused Durocher’s fatal blows to the head was highly problematic, and the trial judge should have properly cautioned the jury, particularly about the frailties of their in-court identification of Clark.

A man and his girlfriend testified about being with Durocher at his campsite that night and identified Clark, in court, as the man who later joined them. The male witness also identified Clark in court as the person he saw punch Durocher before he left.

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Clark argued that neither witness had ever met him before, that the male witness was high on methamphetamine and hallucinating that night, it was dark outside and their descriptions to police were vague and inconsistent.

“Mr. Clark asserts that this constellation of factors raises grave concerns about the identification evidence and required a caution to the jury in the strongest of terms,” Justice Jerome Tholl wrote in his March decision.

Tholl, with Justice Ralph Ottenbreit concurring, dismissed the appeal, ruling that while the witnesses’ identification of Clark was weak, “a finding of guilt was reasonably available to the jury after taking the evidence as a whole into account.”

The two appeal judges concluded that the circumstantial evidence of Clark’s DNA on a water bottle left at the campsite, his absence from home during the attack and his anger toward Durocher, who he believed had slept with his former and present girlfriends, bolstered the weak identification.

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However, Justice Robert Leurer dissented. He ruled the jury should have been given a Hibbert instruction — “going beyond standard cautions, in situations where there is suspect in-court identification testimony.”

“While a caution about the inherent frailties of in-court identification evidence is not required in every case, I have concluded that the circumstances here demanded that one be given. Because jurors were not provided with appropriate warnings about this testimony, they were not equipped to properly review the evidence before them,” Leurer wrote in his dissension.

“We agree with Justice Leurer, in dissent, that a specific Hibbert type instruction … was required in the circumstances of this case. The appeal is allowed, substantially for the reasons of Justice Leurer. The conviction is set aside and a new trial ordered,” the Supreme Court ruled this week. 

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