DATE: 20040921

DOCKET: C36673

COURT OF APPEAL FOR ONTARIO

WEILER, GOUDGE and BLAIR JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Lucy Cecchetto, for the respondent

Respondent

• and -

KEITH THOMAS DESROSIERS

Brian H. Greenspan and Sharon Lavine, for the appellant

Appellant

Heard: September 9, 2004

On appeal from a conviction for second degree murder by a jury before Justice J.M. Donnelly at Windsor on February 2, 2001, and from the period of parole ineligibility imposed.

R.A. BLAIR J.A. :

[1] The appellant was convicted of second degree murder by a jury before Donnelly J. at Windsor, on February 2, 2001. He was sentenced to life imprisonment with no eligibility for parole before fifteen years. He appeals both his conviction and the period of parole ineligibility imposed.

[2] On behalf of the appellant, Mr. Greenspan and Ms. Lavine submitted that the trial judge erred in the following respects:

a) His instructions to the jury in relation to the assessment of the testimony of four individuals who were present at the time of the events surrounding the homicide, and who the defence alleged were involved as possible participants in it, failed to meet the “Vetrovic warning” requirements;

b) His instructions in relation to the assessment of that same testimony on the issue of the cause of death and the issue of the “cover-up” were also deficient;

c) He failed to instruct the jury properly in relation to a verdict of manslaughter on the basis of lack of intent due to a combination of facts going towards intoxication, provocation and self-defence (the “rolled-up charge” issue);

d) He erred in dismissing the appellant’s Corbett application; and,

e) He erred in imposing a period of parole ineligibility of 15 years.

[3] We did not find it necessary to call upon the Crown with respect to issues (a) and (b). In our view the trial judge’s charge to the jury clearly and effectively provided the clear and sharp warning required to focus the jury’s attention and to impress upon them the danger of accepting, without more, the evidence of John Paul Desrosiers, Patrick Desrosiers, Ryan Carter, and Devon Arthurs: See R v. Vetrovec (1982), 67 C.C.C. (2d) (S.C.C.); R v. Brooks (2000), 2000 SCC 11, 141 C.C.C. (3d) 321 (S.C.C.). In the general portion of his charge in this regard, and in reviewing the evidence of these witnesses, he repeatedly warned the jury that special caution was required in assessing the reliability of their testimony and that it was dangerous to rely on their unsupported evidence on significant issues. The appellant submits that the trial judge undermined the caution he gave by telling the jury they could find support for the unsavoury witnesses’ evidence by considering neutral or irrelevant factors. We do not agree. The trial judge went through the relevant evidence with them in this respect, including evidence that was not just neutral but that was capable of providing some support for their testimony.

[4] Similarly, we are satisfied that the instructions dealing with the issues of the cause of death and the alleged after-the-fact conduct were proper, and that they appropriately outlined the positions of the defence, and the evidence relating to them, in relation to those issues.

[5] We turn now to issues (c), (d) and (e) outlined above.

The Rolled-up Charge

[6] The trial judge instructed the jury on each of provocation, self-defence, accident and intoxication, separately. The appellant takes no issue with these instructions. Mr. Greenspan argues, however, that when it came to his “rolled-up” instructions on the possible cumulative effect of the evidence concerning these concepts – which might, by itself, fall short of creating a reasonable doubt about provocation, self-defence, accident or intoxication, but which taken cumulatively might nonetheless raise a reasonable doubt about intent – the trial judge erred. He erred by leaving intoxication out of the mix and compounded this error by omitting any reference to a “cumulative effect” route to manslaughter in the written materials provided to the jury.

[7] We would not give effect to this argument.

[8] In Regina v. Robinson (1996), C.C.C. (3d) 97 (S.C.C.), Lamer C.J. stated:

I wish to add that in this case, a charge linking the evidence of intoxication with the issue of intent in fact was particularly important since there was also some, albeit weak, evidence of provocation and self-defence. Thus, while the jury may have rejected each individual defence, they may have had a reasonable doubt about intent had they been instructed that they could still consider the evidence of intoxication, provocation and self-defence cumulatively on that issue. This is commonly known as the “rolled-up” charge.

[9] Regina v. Robinson followed earlier decisions of this Court in Regina v. Clow (1985), 44 C.R. (3d) 288, Regina v. Deveaux (1986), 26 C.C.C. (3d) 88, and Regina v. Nealy (1986), 30 C.C.C. (3d) 461.

[10] Here, the trial judge did omit reference to intoxication in the particular portion of his charge upon which Mr. Greenspan focuses, and in which the trial judge talked specifically about a roll-up. He mentioned accident, self-defence, provocation and intent. We are satisfied, however, that the charge, taken as a whole, left the jury with a clear understanding that they must consider all of the evidence cumulatively, and as a whole, including the evidence relating to the appellant’s intoxicated state, in determining the crucial issue of whether the accused had the necessary intent to commit murder. In the portion of the charge dealing with drunkenness, the trial judge instructed the jury that “drunkenness becomes a defence to murder if it, alone or with the other evidence, precludes a finding beyond a reasonable doubt that the accused person had the intent required for murder”. Later, he said “the issue is not whether he was intoxicated, but whether his consumption of alcohol, when taken with other relevant factors, gives rise to reasonable doubt on the issue of the intent required for murder.” Again, when dealing with the necessity for planning and deliberation in the context of first degree murder, the trial judge reminded the jury “that a lesser degree of intoxication than we discussed on the intent issue may render impossible either planning or deliberation”.

[11] In short, in the words of Cory J.A. in Nealy at p. 469, the charge on this point was “sufficient to bring to the jury’s mind the necessity of considering all the pertinent facts in resolving the issue of intent”.

The Corbett Application

[12] At trial the appellant brought a “Corbett” application, seeking an order that if he testified the Crown would be precluded from cross-examining him on his criminal record. Dating back to 1990, Mr. Desrosiers had a record of two convictions for crimes of dishonesty (fraud and use of a stolen credit card), three relating to reliability (failures to attend and to comply with probation), one conviction for common assault, two for assault with intent to resist arrest, and one for assault with a weapon.

[13] The trial judge dismissed the application, but in “an attempt to minimize some of the prejudicial effect” he ordered that the four assault convictions were to be referred to only as common assaults. He did so on two bases. First, he concluded – after hearing the evidence to that point in the trial – that the defence cross-examinations of the witnesses Ryan Carter, Devon Arthurs, John Paul Desrosiers, and Patrick Desrosiers had crossed the line beyond an attack on their credibility and amounted to an attack on their characters, designed to show they had a propensity for criminal conduct; permission to cross-examine on the accused’s criminal record was therefore necessary in the interests of not undermining the fairness of the trial by leaving the jury with the impression that the accused was of unblemished character: see R v. Corbett (1988), 41 C.C.C. (3d) 385 (S.C.C.); R v. Batte (2000), 145 C.C.C. (32d) 498 (Ont. C.A.). Second, he balanced the risk of prejudice to the accused against the probative value of the use of the cross-examination on the criminal record.

[14] Ms. Lavine submitted that the trial judge erred in his application of the Corbett principles by relying on aspects of cross-examination of the Crown witnesses that went to the occurrence on the night in question rather than to the character of the witnesses in general. We note that at least some of the factors relied upon by the trial judge were external to the occurrence (for example, suggestions that Ryan Carter was a crack cocaine user, and that John Paul Desrosiers was prone to lose control and others were left to clean up his messes). Even if we were to accept Ms. Lavine’s argument on this point, however, and find an error of principle, we would not interfere with the trial judge’s exercise of discretion in dismissing the Corbett application. He conducted an appropriate probative/ prejudice balancing exercise, and on our own evaluation of the record – given the age of the convictions and particularly the sanitizing of the reference to the assault convictions – we are satisfied that a prejudice/probative value balance was struck that was not unfair in the circumstances.

[15] We would therefore not give effect to this ground of appeal, either.

Parole Ineligibility

[16] Finally, we would not interfere with the trial judge’s imposition of a fifteen-year period of parole ineligibility in the circumstances of this case.

[17] Ms. Lavine argued that the sentence failed to give sufficient recognition to the recommendation of eight members of the jury that the minimum period of ten years for parole eligibility be maintained. In particular, she contended that the trial judge erred in emphasizing that the jury had not heard the evidence on the sentencing hearing, which she submits was quite favourable to the appellant and would have reinforced their ten-year recommendation. She points to the evidence that was brought forward in support of the appellant’s character, his family support and his prospects for rehabilitation.

[18] A trial judge has a broad discretion when it comes to sentencing, however, and appellate court ought not to interfere in the absence of an error in principle or a sentence that is clearly unreasonable: R v. Shropshire (1995), 102 C.C.C (3d) 193 (S.C.C.). Neither factor is present in this case.

[19] Shropshire summarizes the test to be applied under s. 744 of the Criminal Code, which authorizes a judge to impose a period of parole ineligibility greater than the minimum of ten years, as follows, at para 18:

The determination under s. 744 is thus a very fact-sensitive process. The factors to be considered in fixing an extended period of parole ineligibility are:

(1) the character of the offender;

(2) the nature of the offence; and

(3) the circumstances surrounding the commission of the offence;

all bearing in mind the discretionary power conferred on the trial judge.

[20] A trial judge is not bound to accept the jurors’ recommendations, although they form part of his or her assessment. Here, the trial judge reduced the period of ineligibility that he would otherwise have imposed by three years, in deference to the jurors’ recommendations. The jurors, moreover, did not hear the evidence about the appellant’s criminal record for crimes of violence, and might well have made a different recommendation had they been aware of that background.

[21] As the appellant submits, murder is a crime that is by nature horrible, and therefore a particular type of murder itself does not necessarily justify imposing a longer period of parole ineligibility than the minimum ten years: R v. McCormack (S.E.) (1995), 83 O.A.C. 73. However, in Shropshire, at paras. 29 and 31, Iacobucci J. said that:

[29] . . . In permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability. As a result, the period of parole ineligibility for second degree murder will run anywhere between a minimum of 10 years and a maximum of 25, the latter being equal to that prescribed for first degree murder. The mere fact that the median period gravitates towards the 10-year minimum does not, ipso facto, mean that any other period of time is “unusual”.

[31] If the objective of s. 744 is to give the trial judge an element of discretion in sentencing to reflect the fact that within second degree murder there is both a range of seriousness and varying degrees of moral culpability, then it is incorrect to start from the proposition that the sentence must be the statutory minimum unless there are unusual circumstances. As discussed supra, a preferable approach would be to view the 10-year period as a minimum contingent on what the “judge deems fit in the circumstances”, the content of this “fitness” being informed by the criteria listed in s. 744. As held in other Canadian jurisdictions, the power to extend the period of parole ineligibility need not be sparingly used.

[22] Here, the circumstances of the murder were particularly egregious and the appellant has a background that includes instances of violence, whatever his other redeeming characteristics may be. The trial judge took into account the Shropshire test and all of the relevant sentencing principles, together with all of the relevant mitigating and aggravating factors pertaining to the situation. He exercised his discretion in imposing a fifteen-year period of parole ineligibility. We can find no error in his determination in that regard.

Disposition

[23] For the foregoing reasons, then, the appeal as to conviction and sentence is dismissed.

“R.A. Blair J.A.”

“I agree K.M. Weiler J.A.”

“I agree S.T. Goudge J.A.”

Released: September 21, 2004