An ex-BC Lions football player who murdered his ex-girlfriend at her Burnaby home nearly 15 years ago will not get a new trial, after a ruling from B.C.'s highest court this week.
Joshua Boden, who grew up playing football at North Vancouver's Carson Graham Secondary, is serving a life sentence with no chance of parole for the second-degree murder of Kimberly Lynn Hallgarth, 33, at her Colborne Avenue home on March 15, 2009.
On Thursday, his bid to get a new trial was denied by the B.C. Court of Appeal.
Boden's lawyers had argued the trial judge should not have admitted evidence from the Crown's key witness and that the judge had "misapprehended" certain evidence.
In a judge-alone trial, Justice Barry Davies convicted Boden in November 2021.
Davies found that Boden had brutally assaulted Hallgarth at her home in the early morning hours, stomping on her neck and strangling her.
Crown prosecutor Brendan McCabe had told the court Boden blamed Hallgarth, an ex-girlfriend who had worked for him in the sex trade, for the end of his career as a wide receiver in the Canadian Football League.
Identity was the main issue at trial, and the Crown relied on Boden's then-girlfriend, Heidi Nissen – who also worked for him in the sex trade – to prove Boden was the person who killed Hallgarth.
Nissen was present for the murder and identified Boden as the killer.
The defence "vigorously challenged" Nissen's credibility and reliability, according to Thursday's B.C. Court of Appeal ruling.
At trial, the Crown conceded Nissen's testimony should be approached with caution given a history of untruths and recantation but said there was an understandable explanation for her conduct – namely, a dysfunctional relationship with Boden that included intimidation and physical abuse.
The Crown also argued that Nissen's evidence about the circumstances surrounding the murder was confirmed or corroborated by other evidence.
Ultimately, Davies accepted Nissen's testimony about the killing.
But Boden's lawyers argued a new trial was needed because Davies shouldn't have admitted evidence about Boden's mistreatment of Nissen because it was prejudicial.
They also argued Davies "misapprehended" evidence that he found confirmed and corroborated Nissen's testimony.
The three-person court of appeal unanimously rejected Boden's appeal.
In its ruling, written by Justice Joyce DeWitt-Van Oosten, the court noted the defence had itself consented to the admission of Nissen's "prejudicial" testimony about her relationship with Boden in a "tactical" decision, so it could paint Nissen as the kind of person who would do anything to keep him, including killing a rival like Hallgarth.
DeWitt-Van Oosten said the trial judge had also instructed himself not to be prejudiced by Boden's mistreatment of Nissen.
As for Davies "misapprehending" evidence, DeWitt-Van Oosten said she saw no evidence of that.
"Rather, he simply interpreted the evidence differently than the appellant. He was entitled to do so in the context of all else before him," she wrote.
Follow Cornelia Naylor on Twitter @CorNaylor
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