Her Majesty the Queen v. Cece et al. [Indexed as: R. v. Cece]
72 O.R. (3d) 321
[2004] O.J. No. 3938
Dockets: C33058, C35001 and C34952
Court of Appeal for Ontario,
Weiler, Rosenberg JJ.A. and Pardu J. (ad hoc)
September 28, 2004
Criminal law -- Abuse of process -- Accused stabbing plainclothes police officer on surveillance duty -- Another surveillance officer at scene testifying he arrived within one minute of victim's distress call and accused had already fled -- Crown relying on this detail and others to establish that accused had requisite intent for murder -- Accused subsequently discovering that two other police officers assigned to surveillance detail were not at scene and were drinking alcohol in another jurisdiction at time of offence -- Accused knowing before trial that two other surveillance officers not at scene -- Non-disclosure of this information to accused not constituting abuse of process -- Missing officers had no evidence to offer with respect to offence and accused could not have used undisclosed information about their drinking to call into question credibility of officer who responded to distress call -- Appeal from conviction dismissed.
Criminal law -- Evidence -- Disclosure -- Accused stabbing plainclothes police officer engaged in surveillance -- Another police officer engaged in same surveillance detail testifying that he arrived at scene within one minute of deceased's distress call and that accused had already fled -- Crown relying on this detail and others to establish that accused had requisite intent for murder -- Accused subsequently discovering that two other police officers assigned to surveillance detail were not at scene and were drinking alcohol in another jurisdiction at time of offence -- Accused knowing before trial that these other officers not at scene -- Non-disclosure of this information to accused not constituting abuse of process and not impairing their right to fair trial -- Missing officers had no evidence to offer with respect to offence and accused could not have used undisclosed information about their drinking to call into question credibility of officer who responded to distress call -- App eal from conviction dismissed.
Criminal law -- Sentence -- Parole ineligibility -- Murder -- One accused stabbing on-duty police officer at second accused's request so that accused could use his car to leave town -- Accused convicted of second degree murder -- Trial judge imposing parole ineligibility periods of 16 and 18 years -- Appeal by accused dismissed -- Fact accused unaware that victim was police officer not detracting from importance of denunciation where on-duty police officer is murdered -- Disparity in sentence being justified by fact that one accused had lengthier criminal record and was leader.
The accused were convicted of second degree murder. The accused C stabbed a plainclothes police officer who was engaged in surveillance at a plaza in order to obtain his motor vehicle so that she and the accused T could leave the city. T stole the knife used in the stabbing, approached the victim together with C, and urged C to stab the victim. The victim was dressed in plainclothes and the accused did not know he was a police officer. The accused were not the objects of the surveillance. Two other police officers, P and H, were engaged in the same surveillance [page322] detail and were nearby in their own vehicles. P testified that he arrived at the scene in under a minute. Notwithstanding the rapid response, the accused had successfully fled the scene. The Crown relied on this circumstance as one of many facts to support the case that the accused had the requisite intent for murder.
After their conviction, the accused learned that two other officers, S and M, who were supposed to be part of the investigation, were out of the jurisdiction and drinking alcohol at the time. C and T appealed their conviction, arguing that their right to disclosure was violated, and that had they been aware of the information concerning S and M, they could have used this information to undermine the credibility of P as to the speed with which he attended at the scene and that non- disclosure amounted to an abuse of process. They also appealed the periods of parole ineligibility imposed by the trial judge, who sentenced the accused to life imprisonment without eligibility for parole for, in C's case, 16 years and in T's case, 18 years.
Held, the appeal should be dismissed.
It was doubtful that the right of the accused to full disclosure was violated in this case. In his first interview with homicide investigators, an interview that was disclosed to the defence, P clearly indicated that S and M were part of the investigative team but had not been at the scene. There was never any doubt that S and M were not at the scene, had no communication with the victim and had no relevant information to give concerning the killing. Assuming that more information should have been disclosed about the activities of S and M, there was no reasonable possibility that this disclosure would have affected the result or that the fairness of the trial was affected. The accused also failed to establish any abuse of process. It was pure speculation that had the accused been aware of S and M's whereabouts and their activities, they could have used this information to undermine P's credibility to such an extent that it would cast in doubt his testimony about the speed with which he responded to the victim's distress call. Moreover, by the end of the case, the speed with which P attended at the scene was a non-issue. Several civilian witnesses had given direct evidence of the flight of the accused from the scene as P's vehicle was driving into the plaza. Thus, the undisclosed evidence would not have impacted on the credibility or reliability of P's evidence.
In imposing parole ineligibility periods of 16 years and 18 years, the trial judge did not err by failing to take into account that while the victim was acting in the course of his duty, his duty had nothing to do with the accused. The need for increased emphasis on denunciation in the case of the killing of a police officer is based on the fact that the officer has been murdered while in the execution of his duty, even though the accused were unaware of the identity of the victim. The importance of denouncing the killing of a police officer requires a significant increase in the minimum period of parole ineligibility. Both accused had recent records for violent offences, including the use of knives. It was open to the trial judge to distinguish between the two accused. T had a much lengthier criminal record and was clearly the leader. The fresh evidence about T's conduct in the penitentiary indicated that there was some ground to believe that she might eventually be rehabilitated but that evidence did not disclose any error by the trial judge and did not justify any interference in the trial judge's disposition.
APPEAL from a conviction for second degree murder imposed by Watt J. of the Superior Court of Justice on November 9, 1999, and a sentence imposed by Watt J. on January 21, 2000.
R. v. Taillefer, [2003] 3 S.C.R. 307, 2003 SCC 70, 233 D.L.R. (4th) 227, 114 C.R.R. (2d) 60, 179 C.C.C. (3d) 353, 17 C.R. (6th) 57, [2003] S.C.J. No. 75, distd R. v. Phillips (1999), 1999 2449 (ON CA), 138 C.C.C. (3d) 297, 26 C.R. (5th) 390, 123 O.A.C. 304, [1999] O.J. No. 2848 (C.A.), consd [page323] Other cases referred to R. v. Collins (1989), 1989 264 (ON CA), 32 O.A.C. 296, 41 C.R.R. 193, 48 C.C.C. (3d) 343, 69 C.R. (3d) 235, [1989] O.J. No. 488 (C.A.); R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, 33 C.R.R. (2d) 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 191 N.R. 1, [1995] S.C.J. No. 98 (sub nom. R. v. O'Connor (No. 2)) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 671
Irwin Koziebrocki, for appellant Elaine Cece. David O'Connor and P. Andras Schrek, for appellant Mary Taylor. Eric Siebenmorgen, for respondent.
[1] BY THE COURT: -- The appellants Elaine Cece and Mary Taylor appeal from their convictions for second degree murder and from the periods of parole ineligibility imposed by Watt J. At the conclusion of the hearing, we dismissed the appeals from conviction for reasons to be delivered later. We reserved our decision on the appeal from the periods of parole ineligibility. These are our reasons for dismissing the conviction appeals and the appeals from the periods of parole ineligibility.
The Conviction Appeals
Overview
[2] On August 4, 1998, the deceased Detective Constable William Hancox was engaged in surveillance at a plaza in Scarborough. Two other members of the Toronto Police Service, Constable Pattison and Detective Hesse were engaged in the same surveillance detail and were nearby in their own vehicles. At about 10:00 p.m. the appellant Cece stabbed the deceased. The appellants were not the object of the surveillance. It seems clear that the appellant Cece stabbed the deceased in order to obtain his motor vehicle so that she and Taylor could leave the city. The appellant Taylor stole the knife used in the stabbing, approached the victim together with Cece and urged Cece to stab him. The deceased was dressed in plainclothes and it was accepted by the Crown at trial that the appellants did not know he was a police officer. There was some evidence that the appellants may have ingested crack cocaine at some time in the day. In [page324] addition, there was evidence that the appellants were despondent and earlier in the day they were expressing suicidal thoughts and took steps to be admitted to hospital. Unfortunately, they left the hospital without being admitted and some four hours later they killed the deceased. The appellants admitted their liability for the death of the deceased but argued that they were guilty only of manslaughter.
1. Jury selection
[3] In the course of the jury selection, the first juror selected disclosed that he had a criminal record that rendered him ineligible for jury duty in accordance with provincial legislation. The trial judge properly held that the juror's criminal record was reasonable cause to discharge him. Since no evidence had been called, another juror was selected to replace him. The first juror had, however, participated as one of the triers in the challenge for cause process. At trial, Crown counsel took the position that the trial judge should discharge all the jurors previously selected and begin the jury selection anew. Counsel for the appellants argued that the jury selection should simply continue. The trial judge agreed with defence counsel and continued the jury selection. Counsel for the appellant Cece, who was not trial counsel, now takes the position that the trial judge erred and that the jury selection process was fundamentally flawed.
[4] The trial judge gave complete and thoughtful reasons for continuing the jury selection. We agree entirely with those reasons. Moreover, in our view, the participation of an ineligible person in the jury selection process was at most an irregularity and the trial judge had a discretion to proceed in the manner that he did. Accordingly, s. 671 of the Criminal Code, R.S.C. 1985, c. C-46 is a complete answer to this ground of appeal. The appellants were not prejudiced by a procedure that they sought and no miscarriage of justice was occasioned.
2. Unreasonable verdict
[5] Counsel for the appellant Cece submitted in his factum that the verdict was unreasonable. This ground of appeal was not pursued at the oral hearing. There was abundant evidence that the appellant, who admittedly stabbed the deceased, had the requisite intent for murder.
3. Application for a mistrial
[6] After the jury verdict but prior to sentencing, information came to light that two other officers who might have been [page325] expected to participate in the investigation were in fact socializing outside Toronto. The defence applied to the trial judge to set aside the jury verdict and declare a mistrial in light of this new information. The trial judge held that he had no jurisdiction to make this order. While we tend to the view that the trial judge was correct, we need not further consider this matter since this issue is fully encompassed by the application to admit fresh evidence.
4. Fresh evidence
[7] As we have said, it was revealed after the verdict that two other officers, Smith and Manuel, who were supposed to be part of the investigation, were out of the jurisdiction and drinking alcohol. Neither Constable Pattison nor Detective Hesse disclosed in their testimony the possible involvement of Smith and Manuel in the surveillance detail. There is no question that Crown counsel and the homicide investigators were unaware of Smith's and Manuel's possible involvement in the surveillance. The appellants now say that their right to disclosure was violated and that there must be a new trial. The lynchpin of the appellants' argument is the evidence of Constable Pattison. He was the first officer on the scene in response to the deceased's radio call after the stabbing. He testified that he arrived at the scene in under a minute. He immediately made an "officer down" call and other police units rapidly attended. Notwithstanding this rapid response, the appellants had successfully fled the scene. The Crown relied on this circumstance as one of many facts to support the case that the appellants had the requisite intent for murder. The appellants say that had they been aware of the information concerning Smith and Manuel they could have used this information to undermine the credibility of Pattison as to the speed with which he attended at the scene.
[8] We have considerable doubt that the appellants' right to full disclosure was violated in this case. In his very first interview with the homicide investigators, an interview that was disclosed to the defence, Pattison clearly indicated that Smith and Manuel were part of the investigative team but had not been at the scene. There has never been any doubt that Smith and Manuel were not at the scene, had no communication with the deceased and had no relevant information to give concerning the killing. In those circumstances, we tend to the view that the disclosure that was made was sufficient. Counsel for the appellants did not explore with the Crown or in cross- examination of Pattison or Hesse the possible roles of Smith and Manuel. It was a non-issue in the case. [page326]
[9] However, assuming that more information should have been disclosed about the activities of Smith and Manuel, we are satisfied that there is no reasonable possibility that this disclosure would have affected the result or that the fairness of the appellants' trial was affected. The appellants have also failed to establish any abuse of process.
[10] As we have said, Smith and Manuel were not at the scene and had no evidence to give about the killing. They had no involvement in the subsequent investigation. There was nothing they could testify about that would in any way have impacted on the trial. The undisclosed information did not affect the reliability of the conviction.
[11] The failure to disclose did not affect the overall fairness of the trial process. Constable Pattison gave one answer that in hindsight might be said to be misleading. In direct examination he was asked who he was working with on August 4, 1998. He replied as follows:
Auh, August 4th, I was with, auh, Detective Constable Geoff Hesse and Bill Hancox.
[12] This answer was literally true. A more fulsome answer would have been that he was also supposed to be working with Smith and Manuel. In any event, despite the disclosure of his interview with the homicide investigators, defence counsel did not challenge this account. It is pure speculation that had the appellants been aware of Smith's and Manuel's whereabouts and their activities they could have used this information to undermine Pattison's credibility to such an extent that it would cast in doubt his testimony about the speed with which he responded to the deceased's distress call.
[13] Moreover, we agree with counsel for the respondent Crown that by the end of the case, the speed with which Pattison attended at the scene was a non-issue. Several civilian witnesses, whose credibility and reliability [were] not in question, had given direct evidence of the appellants' flight from the scene as Pattison's vehicle was driving into the plaza. There simply was no longer any serious dispute as to the chain of events or how and in what manner the appellants were able to leave the scene without being detected by the incoming police vehicles.
[14] Thus, the undisclosed evidence would not have impacted on the credibility or reliability of Pattison's evidence. Following the trial, there was an exhaustive internal affairs investigation into the Smith and Manuel issue. That investigation has not led to any lines of inquiry with other witnesses or the gathering of [page327] additional evidence. In short, if there was any non-disclosure, it did not affect the fairness of the trial.
[15] The very broad statement by LeBel J. in R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, 179 C.C.C. (3d) 353, at para. 103 that the discrepancies in the officers' notes could be used to impeach the officers' credibility, which "is all that is needed for it to be possible to hold that there was a reasonable possibility that the failure to disclose impaired the overall fairness of the trial", must be read in light of the issues in that case. In Taillefer, a large body of potentially exculpatory evidence was not disclosed to the defence. In addition, the police did not disclose notes made by the police officers who interrogated the accused. At trial, the accused repudiated their confessions. The undisclosed notes referred to by LeBel J. related directly to the conduct of the interrogation, a central issue in the case. By contrast, the undisclosed material in this case concerned two officers who were not involved in the investigation, had no information to provide and were not witnesses in the cas
. And, as we have said, Constable Pattison's credibility would not have been adversely impacted in any material sense.
[16] The appellants' abuse of process argument centres on statements made by two senior officers who, it is said, consciously withheld the information about Smith and Manuel from Crown counsel so that the information would not be disclosed to defence counsel at trial. We do not read the record in this way. Rather, the most reasonable conclusion from the evidence is that the officers saw the Smith and Manuel matter as principally raising concerns about occupational health and safety and, perhaps, neglect of duty. They decided that it should therefore be dealt with after the criminal trial. It is also apparent that the officers had only limited information about the activities of Smith and Manuel until after the trial.
[17] The test for abuse of process was set out by L'Heureux-Dubé J. in R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1, at para. 73. In this paragraph, L'Heureux-Dubé J. describes a "residual category" of conduct that can amount to an abuse of process in these terms:
This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.
[18] The appellants argue that the conduct of the senior officers brings this prosecution within this residual category and that [page328] the appropriate remedy is a new trial. The test for abuse of process, even in this residual category, is a strict one. The conduct of these officers was unfortunate, but it does not amount to the kind of unfairness or vexatious conduct as to contravene fundamental notions of justice nor undermine the integrity of the judicial process. This prosecution was conducted fairly and with due attention to the rights of the appellants. The fact that two officers with only tangential association with the case decided to await the verdict before dealing with the conduct of Smith and Manuel, two officers who played no part in the murder case, hardly undermines the integrity of the judicial process. In any event, a new trial would be wholly disproportionate to what occurred. In that regard, we note that the matter was thoroughly investigated by the police and the officers involve d were subject to internal discipline. Accordingly, we would not give effect to this ground of appeal.
5. Comment on counsel's jury address
[19] In the charge to the jury, the trial judge instructed the jury to disregard two comments made by counsel for the appellant Taylor. The trial judge's view was that counsel for Taylor was inviting the jury to speculate about comments Taylor made to Cece. The appellants did not testify and there was no evidence that Taylor made either of these comments attributed to her by her counsel. We agree with the trial judge's view of counsel's submission and his comments in the charge to the jury were justified. The trial judge's comments did not interfere with the presentation of the defence, which was fully and fairly presented to the jury by the trial judge.
[20] For these reasons, the appeal from conviction was dismissed.
The Appeal From Parole Ineligibility
[21] The trial judge imposed a period of 16 years parole ineligibility on the appellant Cece and 18 years on the appellant Taylor. The appellants submit that the trial judge made two errors in principle. First, he failed to take into account the mental state of the appellants. Second, he failed to take into account that while the deceased was acting in the course of his duty, his duty had nothing to do with these appellants. Additionally, the appellant Taylor submits that the trial judge should have made the same order on his client as he did with respect to Cece.
[22] The trial judge gave lengthy and careful reasons for sentence. He reviewed all of the relevant factors, including the nature of the offence, the character of the appellants and the jury recommendation. He referred to the evidence that the appellants were addicted to crack cocaine and in a depressed mental state. [page329] He correctly pointed out that the verdict of the jury negated "any ameliorating influence of intoxication or mental state on the legal character" of the killing. He found that the killing was a purposeful act and an ambush. This was a finding that was amply supported by the evidence. The evidence of cocaine use by the appellants was at most vague. While at one time during the day of the killing the appellants had contemplated suicide, the evidence was overwhelming that they had changed their plan and intended to obtain a motor vehicle by whatever means possible, including using violence and the stolen knife, to accomplish their ends. The trial judge did not err in his characterizati on of the circumstances of the offence.
[23] The second alleged error in principle is based on an attempt to distinguish this case from this court's decision in R. v. Phillips (1999), 1999 2449 (ON CA), 138 C.C.C. (3d) 297, [1999] O.J. No. 2848 (C.A.). In Phillips, the police officer was killed while he was investigating the accused. As here, Phillips did not know that the victim was a police officer. Unlike in Phillips, Detective Hancox's investigation was unrelated to these appellants. In our view, the distinction drawn by the appellants is not a relevant one in the circumstances of this case. The need for increased emphasis on denunciation in the case of the killing of a police officer is based on the fact that the officer has been murdered while in the execution of duty, even though the accused was unaware of the identity of the victim. In those circumstances, as this court said at para. 27"the community is understandably outraged [and in] imposing sentence, it is appropriate to reflect society's revulsion for this aspect of the offence." In Phillips, this court held at para. 25 that "the importance of denouncing the killing of a police officer requires a significant increase in the minimum period for parole eligibility."
[24] In Phillips, this court imposed a period of 15 years' parole ineligibility even though, were it not for the fact that the victim was a police officer, the case would not have warranted any increase. The circumstances in Phillips were less aggravated than in this case as Phillips had no prior record for violence. In contrast, both appellants had recent records for violent offences including the use of knives. It was open to the trial judge to find that a period of parole ineligibility above that imposed in Phillips was appropriate.
[25] We are also satisfied that it was open to the trial judge to distinguish between the two appellants. While the culpability of both appellants in the actual killing was similar, the appellant Taylor had a much lengthier criminal record and was clearly the leader. The trial judge could properly impose a higher period of parole ineligibility given Taylor's character. The fresh evidence [page330] about Taylor's conduct in the penitentiary indicates that there is some ground to believe that she may eventually be rehabilitated but that evidence does not disclose any error by the trial judge and does not justify any interference by this court in the trial judge's disposition.
[26] Accordingly, the appeals from conviction and from the periods of parole ineligibility are dismissed.
[27] In light of our conclusion concerning the conviction appeals, we did not call upon Crown counsel to argue their "conditional" appeal. That appeal was based on the trial judge's order directing a verdict of acquittal on the charge of first degree murder in accordance with this court's decision in R. v. Collins (1989), 1989 264 (ON CA), 48 C.C.C. (3d) 343, [1989] O.J. No. 488 (C.A.). The Crown only sought to appeal the acquittals if we ordered a new trial on the charge of second degree murder. Accordingly, the Crown appeal is dismissed as abandoned.
Appeals dismissed.