COURT OF APPEAL FOR ONTARIO
MORDEN, CARTHY and MOLDAVER JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Marie Henein and Michael Lacy for the appellant
Respondent
- and -
Sandy Tse and Ian Bulmer
for the respondent
OMMWATTIE BALCHAND
Appellant
Heard: November 7 and 8, 2001
On appeal from conviction for second degree murder by the Honourable Justice Donald Mackenzie, with a jury, dated May 3, 1997 and from sentence dated May 3, 1997
[1]. On a charge of first degree murder, the appellant was convicted of second degree murder and sentenced to life imprisonment. The trial judge increased her period of parole ineligibility from ten to fifteen years. The appellant appeals against conviction and sentence.
Brief Summary of Facts
[2]. The deceased was the wife of Vickram Mattai. The appellant was Vickram’s long-time employee. Unbeknownst to the deceased, Vickram had been having an affair for years with the appellant. Frustrated by the fact that Vickram would not leave his wife, the appellant testified that she went to the deceased’s apartment on the morning of July 26, 1995 and disclosed to her the true nature of her relationship with Vickram. According to the appellant, upon learning this, the deceased became angry and attacked her. A violent struggle ensued. Although the appellant could not recall all of the details, she remembered ending up on top of the deceased in a washroom located some distance from where the struggle had begun. Both she and the deceased were covered in blood. Believing that the deceased was alive but unconscious, the appellant removed her own clothing and after changing into an outfit belonging to the deceased, she left the apartment.
[3]. Vickram testified that later that day, upon returning home in the early afternoon, he discovered his wife’s lifeless body in the washroom. Her head was immersed in the bathtub under about six inches of water, her torso was straddling the tub, and she was wearing only a pair of panties. According to the pathological evidence, although drowning could not be ruled out, manual strangulation was the most likely cause of death.
[4]. After being questioned by the police for many hours on July 26 and 27, 1995, the appellant finally admitted that she and the deceased had met and fought. She claimed however, that she was acting in self-defence throughout and she denied killing the deceased. Nonetheless, in view of her admission and other information available to the police, she was arrested and charged with first degree murder.
[5]. At trial, the appellant maintained that she did not intend to kill the deceased and, to the extent that she may have inflicted injuries upon her, that she was acting in self-defence to preserve herself from death or serious bodily harm. The Crown, on the other hand, maintained that the killing was planned and deliberate and that the appellant committed the murder so that she and Vickram could be together. By its verdict of second degree murder, the jury clearly rejected the Crown’s theory that the killing was planned and deliberate.
Conviction Appeal
[6]. We have concluded that the conviction for second degree murder cannot stand because of two significant errors made by the trial judge in his charge to the jury.
[7]. First, the trial judge failed to instruct the jury on the lesser and included offence of manslaughter. In our view, he was required to do so because, on this record, the appellant’s intent at the time of the killing was a live issue. Specifically, on the basis of the evidence presented at trial, it was open to the jury to find that the victim died as a result of manual strangulation, that death occurred in the course of a violent struggle between the appellant and the victim and that the appellant’s state of mind at the time was such that she may not have foreseen or intended the consequences of her acts.
[8]. The trial judge was alive to this body of evidence. Indeed, in his instructions and reinstruction on the issue of intent, he directed the jury as follows:
Looking at the issue of intent another way, you may find when considering the evidence as a whole that at the time of the choking the accused was filled with all sorts of emotions ranging from fear to anger to excitement and then as a result she may have acted instinctively without consideration of the consequences of her action.
She testified that she was unaware that her choking of the deceased caused the deceased’s death and that she felt the deceased was merely unconscious when she stopped moving. The onus is upon the Crown to prove beyond a reasonable doubt that at the time of this choking the accused intended to kill Neela Mattai or to cause her grievous bodily harm which the accused knew was likely to cause death and was reckless whether death ensued or not.
If the Crown has satisfied you beyond a reasonable doubt that at the time of the choking the accused either intended to kill Neela Mattai or intended to cause grievous bodily harm to her which the accused knew was likely to cause death and was reckless whether death ensued or not, then the accused would be guilty of second degree murder.
[9]. That instruction was correct in so far as it went. Unfortunately, over the objection of defence counsel, the trial judge refused to go further and direct the jury that if they believed or had a reasonable doubt that the appellant did not possess one or the other of the requisite intents for murder at the time of the killing, she could not be convicted of second degree murder but only manslaughter.
[10]. On behalf of the Crown, Mr. Bulmer submits that the trial judge was not required to instruct the jury on the included offence of manslaughter because intent was not a live issue. As indicated, we do not accept that submission. Alternatively, he submits that the trial judge’s failure to instruct on manslaughter occasioned no prejudice to the appellant and he urges us to apply the curative proviso to save the conviction. In short, Mr. Bulmer maintains that in view of the instruction reproduced above, the trial judge effectively left the issue of intent to the jury and if anything, the instruction was overly favourable to the appellant because it would have led the jury to believe that the appellant must be acquitted if she lacked the intent for murder. With respect, we disagree.
[11]. In R. v. Haughton (1994), 93 C.C.C. (3d) 107 (S.C.C.), Sopinka J. for the court explained why, as a general rule, the curative proviso cannot safely be applied in circumstances where an included offence has not been left to the jury:
The application of s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c.C-46 requires the court to consider whether a jury properly instructed could, acting reasonably, have come to a different conclusion absent the error. In applying this test the findings of the jury in the case under appeal may be a factor in determining what the hypothetical reasonable jury would have done, provided those findings are not tainted by the error. In cases in which an included offence is not left with the jury, a conviction by the jury of the more serious offence cannot generally be relied on by reason of the fact that it may very well be a reaction against a complete acquittal. There is an apprehension that the jury convicted because they had no other alternative than acquittal and acquittal was unpalatable. [Emphasis added]
[12]. We think the concerns expressed by Sopinka J. are apposite to this case. Accordingly, we do not see it as one in which the curative proviso can safely be applied.
[13]. The second error in the charge relates to the trial judge’s instructions on the issue of self-defence. In the charge proper and in his reinstruction in response to a question from the jury concerning the interplay between s. 34(2) of the Code and s. 37 of the Code, the trial judge directed the jury as follows:
Now, the thrust of your question, as I understand it which I repeat here:
“Does Section 34 override the excessive force factor contained in Section 37?”
“Override” I do not believe is the appropriate word to use here in this context. Overlay is perhaps a better word to describe the relation of S. 37 to S. 34(2) but I will read to you what I indicated and instructed you as to the effect of S. 37 on S. 34(2). You will note that S. 34(2) allows a person to defend himself or herself from the assault of another person by repelling the attacker with such force as could cause death or grievous bodily harm to the attacker providing the person being attacked is under a reasonable apprehension of death or grievous bodily harm. On the other hand, S. 37 merely says that a person being attacked can only justify the use of such force against the attacker as is necessary to prevent the assault of the attacker or a repetition of it.
If you are satisfied beyond a reasonable doubt that S. 34(2) applies on the facts of this case as you find them, then that section and not the provisions of S. 37 must govern your assessment of the use of the force that the accused could use in defending herself against the attack of Neela Mattai. In other words, if you are satisfied beyond a reasonable doubt that the accused reasonably believed that she was facing death or grievous bodily harm at the hands of Neela Mattai then the accused was entitled to use like force against Neela Mattai if she believed on reasonable grounds she could not otherwise protect herself from death or grievous bodily harm.
If you are satisfied beyond a reasonable doubt that the accused struck back at Neela Mattai in the circumstances described in S. 34 and used force against Neela Mattai which could have caused death or grievous bodily harm to Neela Mattai, then there is not room for questioning the proportionality or degree of force used by the accused.
That question, that is questioning the degree of force or the proportionality is within the ambit of S. 37 as I have read it. [Emphasis added]
[14]. The Crown concedes, correctly in our view, that this instruction was erroneous. In particular, it was wrong for the trial judge to tell the jury that the appellant could only derive the benefit of s. 34(2) if the jury was satisfied beyond a reasonable doubt that the prerequisites of that provision had been met, failing which s. 37 would govern. The jury of course should have been told that unless the Crown satisfied them beyond a reasonable doubt that it was not applicable, the appellant was entitled to the benefit of s. 34(2) and that they need only consider s. 37 if satisfied beyond a reasonable doubt that s. 34(2) did not apply.
[15]. In our view, this error was serious not only because it reversed the burden of proof, but also because the appellant’s case for self-defence rested primarily on s. 34(2), not s. 37. The impugned instruction turned the defence position on its head and it may well have resulted in s. 37 becoming the focus of the jury’s attention. The significance of the error is compounded by the fact that the erroneous instruction was given in response to a question from the jury. The Supreme Court of Canada has made it clear that in such circumstances, misdirection will generally result in reversible error. (See for example R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 per Cory J. at p. 411. In our view, this case is no exception.
[16]. The foregoing errors in the charge were significant. Each was capable of occasioning serious prejudice to the appellant and in our view, neither can be saved by the curative proviso. It follows that a new trial must be ordered.
[17]. In view of this conclusion, it is unnecessary to deal with the other grounds of appeal raised by the appellant. However, we feel obliged to comment briefly upon them.
[18]. With respect to the alleged improprieties by Crown counsel [not Ms. Tse or Mr. Bulmer], we agree that it was wrong for the Crown to focus on a line of attack by defence counsel designed to implicate Vickram as the killer and then use this to portray the appellant as a person without conscience, who would deliberately implicate an innocent man in a murder he did not commit to save herself. We also agree that it was wrong to place the appellant in the position of having to call the police “liars” where her evidence differed from their evidence. We need not decide whether standing alone, this ground of appeal would have necessitated a new trial. Suffice it to say that, in our view, the first of the alleged improprieties was serious and it was capable of impacting on the overall fairness of the trial.
[19]. Moving next to the trial judge’s refusal to leave the jury with the “alternative suspect” theory, we think that there was some evidence capable of supporting the defence position that the deceased’s husband was responsible for his wife’s death. That evidence however, was weak when compared with the substantial body of evidence available to the Crown tending to prove the opposite. Bearing in mind that the trial judge did not remove the “alternative suspect” theory from the jury’s consideration, we think it unlikely that his refusal to put it specifically to the jury resulted in any harm to the appellant.
[20]. Turning finally to the ground of appeal relating to the appellant’s statements to the police and particularly, whether the trial judge erred in finding that the statements were voluntary and that the appellant was not detained within the meaning of s. 10(b) of the Charter until she confessed to the killing at 7.03 a.m., we think that these issues are best left for the trial judge conducting the new trial. That said, in the hope of assisting the new trial judge, we make these observations.
[21]. First, in his discussion of the issue of detention based on psychological compulsion, the trial judge stated:
In Therens [R. v. Therens (1985), 1985 CanLII 29 (SCC), 18 C.C.C. (3d) 481] and in Thomsen [R. v. Thomsen (1988), 1988 CanLII 73 (SCC), 40 C.C.C. (3d) 411], the Supreme Court has clearly recognized a form of detention within the scope of s. 10 other than physical constraint of the person, that is, when a police officer or other state agent assumes control over the person by a demand or direction. The control here envisaged, is a form of mind control which the police officer in effect deprives the person of the will to assert his or her own views and causes him or her to bend or submit to the will of the police officer as the person perceives such will. [Emphasis added]
[22]. We think that in framing the test that way, the trial judge set the bar too high. In Thomsen, supra, at p. 418, LeDain J. stated that “the necessary element of compulsion or coercion to constitute a detention may arise . . . from a reasonable belief that one does not have a choice as to whether or not to comply”. With respect, rather than attempting to recast the test in his own words, the trial judge should simply have applied the test outlined by LeDain J. in Thomsen, supra.
[23]. Turning to the trial judge’s analysis of the seven factors in R. v. Moran (1987), 1987 CanLII 124 (ON CA), 36 C.C.C. (3d) 225 at pp. 258 and 259 that relate to the issue of detention, with respect to item 5, we disagree with the trial judge’s finding that “there was no information [available] to the police prior to her [the appellant’s] admission at 7.03 a.m. that would constitute reasonable and probable grounds to suspect that she had committed the homicide”. Certainly, by the time the final statement began at around 5:55 a.m., we think there was evidence capable of supporting a finding that the police did have reasonable grounds to suspect, if not believe, that the appellant had committed the crime or been directly involved in it.
[24]. With respect to the sixth of the Moran factors, we think, particularly in relation to the last statement taken between 5:55 a.m. and 7:03 a.m., that the trial judge failed to adequately consider the pointed and accusatory nature of the questions being asked, the length of time the appellant had been present at the police station, her individual characteristics, including lack of food and sleep, and the determined, persistent and unrelenting fashion in which Constable Skwarek pursued his admitted goal.
[25]. Had the trial judge applied the correct test for psychological compulsion and considered factors five and six in the manner suggested, we think he might well have come to a different conclusion on the issue of detention and perhaps even voluntariness, particularly in relation to the final statement made by the appellant commencing at 5:55 a.m. and ending with her confession at 7:03 a.m. In the end however, as indicated, we think it best to leave the question of admissibility to the judge presiding at the new trial.
CONCLUSION
[26]. For these reasons, the appeal from conviction for second degree murder cannot stand. Accordingly, the conviction is quashed and a new trial is ordered.
[27]. In view of this result, it is unnecessary to consider the matter of sentence.
Signed: “J.W. Morden J.A.” “J.J. Carthy J.A.” “M.J. Moldaver J.A.”
RELEASED: DECEMBER 7, 2001 “JWM”