Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In January 2002, the deceased Douglas Loken was living with Patti Johnson and her son Dylan at Ms. Johnson’s home in Vernon. At some time on 12 January, Loken told Ms. Johnson that the Appellant was coming to see him in order to discuss some contentious matters. He told her that he wanted her to remain in the house because he and the Appellant had been involved in some heated arguments in the past. He also told her son Dylan not to remain in the house because “he didn’t want bullets flying through and hitting” him. In contemplation of the meeting with the Appellant, Loken brought a baseball bat and a drywall hatchet into the living room.

The Appellant and the deceased Loken had known each other for some time. They were both drug dealers. There was some animosity between the two relating to drug debts and apparent threats that Loken had made to two of the Appellant’s associates. The Crown’s theory was that these factors together with Loken’s apparent display of disrespect towards the Appellant went to the issue of motive. The Crown’s main witness was Luis Romero. He testified that he went to the Loken residence with the Appellant and the Appellant admitted to him that he had killed Loken. The Appellant testified that it was Romero who had killed Loken.

At trial, the defence position was that it was Romero and not the Appellant who had killed Loken. Romero denied any involvement in the shooting. He said that he had only met Loken once and consequently had no motive to kill him. In his evidence the Appellant denied that he had killed Loken. He said that he was selling drugs to Loken but at Romero’s request.

At the close of the Crown’s case, the Appellant made a Corbett application to exclude any reference to his criminal record when he testified. There is no dispute that in the main part of his charge the judge correctly charged the jury as it related to the Appellant’s criminal record. However, in his recharge, the trial judge ended with the words “those offences may say something to you of the kind of person Escobar is”.

The Appellant was convicted of second degree murder. On appeal, the majority of the Court of Appeal dismissed the appeal. Oppal J.A. dissenting would have allowed the appeal based on the questions of law of whether the trial judge’s recharge with respect to the Appellant’s criminal record constituted reversible error and whether it was appropriate to dismiss the appeal upon the application of s. 686(1)(b)(iii) of the Criminal Code.