COURT OF APPEAL FOR ONTARIO
WEILER, BORINS and ARMSTRONG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Timothy E. Breen for the appellant
(Respondent)
- and -
DAVID RODNEY FLEGEL
M. David Lepofsky for the respondent
(Appellant)
Heard: March 30, 2005
On appeal from the conviction entered on January 21, 2003, by Justice David L. McWilliam of the Superior Court of Justice, sitting with a jury.
WEILER J.A.:
NATURE OF APPEAL
1The appellant, David Flegel, appeals his conviction for second-degree murder. He submits that the judge did not charge the jury correctly on the issue of provocation and seeks a new trial. The Crown argues that the defence of provocation did not have an air of reality and should not have been left to the jury. Consequently, any error in the charge on provocation should not result in a new trial.
FACTS
2Tim Barrett was beaten to death in his apartment early on the morning of December 24, 2000. His hands were bound behind his back with electrical cord. He was gagged by having a shirt placed over his head and in his mouth, knotted by a belt around his head. He died of several blows to the head, one of which occurred while he was sitting on the couch. Consistent with blood pooling on the couch, this blow would have at least dazed him. It caused several broken bones in his face. Eventually, he moved from the couch through the livingroom towards the bathroom. Blood spatter was consistent with Barrett also being beaten in the bathroom. The principal weapon was a piece of a drawer, comparable to drawers in the master bedroom. The autopsy and blood spatter evidence together showed that Barrett was beaten on the head several times. He had at least two areas of depressed skull fractures. Most blood projected from Barrett’s head when his head was between four and fourteen inches off the bathroom floor consistent with him lying on the floor or on his hands and knees. Ultimately, he died, face down with someone sitting or kneeling on his chest, as he tried to crawl into the bathroom. Barrett’s body was found five days after his death. His apartment had been ransacked, suggesting that the assailant was looking for items to steal.
3Several days before his death, Barrett met with David Flegel, who had moved to Renfrew to overcome an alcohol and drug abuse problem, and Kevin Visneskie at the latter’s apartment. Barrett and Visneskie met several years before the murder and from time to time they engaged in a sexual relationship. On the night that Flegel, Barrett and Visneskie were at Visneskie’s apartment, Visneskie and Flegel began to smoke drugs; Barrett disapproved and left.
4Flegel went to Visneskie’s apartment again the next day. Flegel suggested that they watch an adult video depicting men, which they did. Flegel asked Visneskie if Barrett was gay; Visneskie replied in the negative. Flegel asked Visneskie if he was gay; he replied, “somewhat”. During the video, Flegel had his penis in his hand. Visneskie performed oral sex on Flegel until he climaxed. Flegel did not object. Sometime after this, Barrett asked Visneskie if Flegel was gay. Visneskie said no.
5On the evening of Friday, December 23, Barrett and Flegel shared a pitcher of beer at Romano’s Pool Hall. David Landriault and his partner, Colleen Warren, saw the men at the pool hall and observed that Flegel did not appear intoxicated. Barrett invited Flegel to his apartment for a drink. Shortly after midnight, Mike Willmott, a driver for Brad’s Taxi, took the men from Romano’s to Barrett’s apartment. Willmott observed that Barrett was intoxicated. Willmott was dispatched to the same address sometime between 1 a.m. and 2 a.m. He took Flegel home.
6At 3 a.m., Flegel went to Tim Hortons. He was carrying a case of beer. Two witnesses, Robert Barker and Leslie McCarroll, described Flegel as acting strangely. They said Flegel attempted to sell them jewellery and that he had rolls of money. Flegel also said something about emptying his bank accounts and getting out of town. None of the witnesses, including P.C. McKean, who spoke with Flegel at the Tim Hortons, thought that Flegel was intoxicated. After 4 a.m., the appellant left Tim Hortons and went home in a taxi that he shared with Barker and McCarroll. Again, the driver of the taxi was Willmott.
7At trial, the appellant did not testify. His sisters Debbie and Wendy, however, testified. A summary of the relevant portions of Debbie’s evidence is as follows. On December 26, Flegel called Debbie and he was crying. Debbie and her husband picked up Flegel. As they drove, Flegel said that while he was in Renfrew he didn’t remember a lot but he could have hurt somebody. He said that he had been in a bar. A fellow sat with him. They finished a pitcher of beer. The fellow invited him over to his place to drink. The appellant agreed. On arriving, the appellant went to the washroom. When he came out, the fellow was nude and reached for or grabbed his “jewels” to make a pass at him. The appellant said he yelled, “What the hell are you doing” and punched the guy in the face. His face was bleeding. He fell to the floor. The appellant said he didn’t know if the guy was hurt. The appellant said he had been drinking a lot and shooting quite a bit of cocaine, the latter before he met the fellow. He was high before he went out. The appellant said he didn’t remember anything after that. The appellant didn’t suggest that anyone else had been present.
8Debbie, her husband, and Flegel went to Wendy’s house. Flegel repeated essentially the same story to Wendy. He told Wendy that when he punched the man, the man fell and must have hit his head because he was bleeding from the nose or ears. They suggested that Flegel contact a lawyer. Neither sister saw Flegel spending abnormal amounts of money.
9That Barrett was brutally beaten to death in his apartment was not disputed at trial. In his closing address, defence counsel conceded that the appellant and Barrett went to the latter’s apartment the night of December 23. Forensic evidence confirmed that a cigarette butt bearing the appellant’s DNA was in Barrett’s living room ashtray. The appellant’s core defence was that he left Barrett’s apartment before some unidentified person killed Barrett. As a result, the appellant left it to the trial judge to raise the defence of provocation. The Crown conceded at trial that the defence of provocation should be left to the jury.
THE ISSUES
10The appellant’s primary submission is that the trial judge erred in the manner in which he charged the jury on the defence of provocation and that the errors in his charge necessitate a new trial.
11While not conceding that the charge on provocation is flawed and despite Crown counsel’s concession at trial, the Crown submits that the defence of provocation should not have been left to the jury. The Crown further submits that the trial judge’s error in leaving provocation to the jury was an error of law but that his error occasioned no substantial wrong or miscarriage of justice. Since the jury would have to conclude that Flegel murdered Barrett before considering the defence of provocation, the verdict would necessarily have been the same.
12The appellant’s factum also states that the trial judge failed to adequately instruct the jury on the intent required for murder. This ground of appeal was only briefly mentioned in oral argument and I do not propose to address it further as I see no merit in it.
LAW AND APPLICABLE PRINCIPLES
13Section 232(1) of the Criminal Code reduces murder to manslaughter if the person committing the culpable homicide did so “in the heat of passion caused by sudden provocation”. Section 232(2) defines provocation as:
A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self‑control…if the accused acted on it on the sudden and before there was time for his passion to cool.
14The principles applicable to whether an air of reality exists where provocation is raised were ably set forth by Crown counsel in his factum at para. 38 and in his oral argument. In summary, those principles are as follows. It is an error of law to leave a defence to a jury unless that defence has an air of reality: R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595 at paras. 193-94; R. v. Park, 1995 104 (SCC), [1995] 2 S.C.R. 836 at paras. 11-13. If a judge erroneously leaves a defence with the jury, the curative proviso saves any error in the judge’s instructions on provocation: R. v. Thibert, 1996 249 (SCC), [1996] 1 S.C.R. 37 at para. 2. The air of reality test requires direct evidence of every element of the defence. If there is no direct evidence, the judge must weigh the evidence to decide if it is reasonably capable of supporting an inference establishing the defence: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3 at paras. 89-91.
15Provocation has an air of reality if three elements are demonstrated. First, the judge must be satisfied that there is some evidence that the particular insult the appellant alleged would deprive an ordinary person of self-control. This test is objective and considers the alleged insult from the point of view of a person who is not exceptionally excitable, pugnacious, or intoxicated. An insult is defined as an action that is “injuriously contemptuous...behaviour; scornful...action intended to wound self-respect; an affront; indignity”: Thibert, supra at para. 8.
16Second, the judge must be satisfied that there is evidence that the wrongful act actually deprived the appellant of his self-control. Third, the judge must be satisfied that there is evidence that the accused reacted to the wrongful act quickly and before there was time for passion to cool: Parnerkar v. The Queen, 1973 149 (SCC), [1974] S.C.R. 449; R. v. Hill, 1986 58 (SCC), [1986] 1 S.C.R. 313 at paras. 34-39. This suddenness must characterize both the insult and the retaliatory act. The provoked person cannot be prepared for the insult; such preparation would eliminate the possibility of a sudden burst of passion. Therefore, the court should consider the relationship between the accused and the deceased to examine whether or not the insult and the reaction were sudden: Parnerkar, supra.
ANALYSIS
17In making the decision to leave the defence of provocation with a jury, a judge is required to undertake a limited weighing of the evidence to decide if it is reasonably capable of supporting an inference that there was provocation. Having regard to the judge’s advantageous position in seeing and hearing the witnesses, an appellate court can interfere with his decision to leave provocation as a defence for the jury to consider only if there is no evidence to support the defence: Thibert, supra, at para. 33.
18In this case, the trial judge did not make a preliminary ruling that the defence had an air of reality likely because counsel agreed that it should be left to the jury. Inasmuch as it is an error of law to leave a defence that has no air of reality with the jury, the appellant cannot argue that the Crown’s position at trial forecloses any inquiry into whether the defence had an air of reality. Thus, in this court the primary issue is whether the defence of provocation had an air of reality.
19In convicting the appellant, the jury rejected his core defence that he was not present at the time that Barrett sustained his fatal injuries. The jury then had to consider if the appellant caused the deceased’s death and whether it was murder. They reached this conclusion. On the basis of the trial judge’s charge, the jury then had to consider whether provocation occurred with the result that their verdict of murder should be reduced to manslaughter.
20The defence of provocation has both an objective and a subjective element. With respect to both elements, the jury was entitled to consider the circumstance that prior to the date in question the deceased had not made any sexual advances to the appellant. The alleged advance was not protracted and was over the appellant’s clothing.
21The appellant concedes that the deceased’s alleged conduct could not constitute an insult under s. 232(2). The question is whether the alleged conduct could constitute a “wrongful act that is…of such a nature as to…deprive an ordinary person of the power of self-control”. The evidence respecting the alleged provocation was equivocal. There was either a gesture of reaching or a touching. In oral argument before us the appellant’s counsel also conceded a solicitation that is accompanied by a gesture but unaccompanied by touching would not satisfy the objective part of the test.
22The incident must be viewed in the context of the prior relationship between the appellant and the deceased. There is no evidence that Barrett had been aggressive towards the appellant, sexually abused him, or taunted him. Unchallenged evidence established that 64-year-old Barrett was about 30 years older than the appellant, had a heart condition, circulatory problems, and significant physical limitations. He could not walk far without resting. He was not loud and was not known to be aggressive or physically confrontational, either when sober or when drinking.
23The evidence is that there was a reach or fleeting sexual contact by Barrett over the clothing of the appellant of the appellant’s genitals. There is no evidence of any resulting injury to the appellant. In these circumstances, an ordinary person might be very angry but would not lose self-control and commit murder. The objective part of the test for provocation was not met.
24Furthermore, even if the objective test could be satisfied, the jury must find that the appellant lost self control or have a reasonable doubt that he did. The evidence that the deceased reached for or grabbed the genitals of the appellant is based on the appellant’s unsworn statements to his sisters. In those statements, he said that he punched the deceased once and that he could not remember what happened afterwards. He did not say that he lost control and was unable to stop himself.
25Further, the unchallenged forensic evidence shows that Barrett was first struck while sitting on the couch and, later, that he was lying on the bathroom floor when he was hit on the head. He was not standing up reaching for the appellant’s testicles. The subjective element of the test is not met.
26To qualify as provocation, the gesture must have been sudden and the appellant’s reaction equally so. The forensic evidence contradicts the appellant’s claim that he struck a single blow to the deceased’s head by the washroom. Expert forensic blood pattern analysis evidence, forensic pathology evidence from Barrett’s autopsy, expert DNA evidence, and police crime scene identification evidence were consistent with Barrett sitting on the couch when he was struck on the head at least once causing him to bleed. Blood pooling on the couch suggested that Barrett remained on the couch for a time after he was struck. Barrett’s bloodstains throughout the apartment were consistent with his making his way back from the living room towards the bathroom. Blood spattering in the bathroom was consistent with Barrett also being beaten there with a piece of a drawer. Most blood projected from Barrett’s head when he was lying between four and fourteen inches off the bathroom floor. Blood pooling shows that Barrett’s body was moved from the bathroom to the bedroom where blood also pooled. He was then moved again to the place where his body was found, partly in the bathroom and partly in the bedroom. Given the jury’s rejection of the appellant’s position that he was not the person who caused Barrett’s death, the length of time over which the assault took place undermines the argument that it was a sudden, short assault consistent with a burst of passion. Barrett died from a beating that occurred in two rooms with time in between for blood to pool in each room.
27For these reasons, I am of the opinion that neither the objective nor the subjective branch of the test for leaving provocation with the jury was met. There is no evidence on which a reasonable jury, acting judicially, could find a wrongful act or insult sufficient to deprive an ordinary person of the power of self-control. The forensic evidence overwhelms the appellant’s bald statement to his sister that he reacted to Barrett’s gesture toward his testicles by delivering a single blow to his face. Barrett’s murder was not sudden. As none of the three requirements for the defence of provocation were met the defence should not have been left with the jury and the trial judge erred in law in so doing.
28The trial judge’s error in leaving the defence of provocation to the jury occasioned no substantial wrong or miscarriage of justice in the circumstances of this case. Since the jury would have concluded that Flegel murdered Barrett before considering the defence of provocation, the verdict would necessarily have been the same.
29Accordingly, I would dismiss the appeal.
RELEASED: April 28, 2005 (“KMW”)
“Karen M. Weiler J.A.”
“I agree S. Borins J.A.”
“I agree Robert P. Armstrong J.A.”
