COURT OF APPEAL FOR ONTARIO
ROSENBERG, SIMMONS and LANG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
- and -
LENNIE JOSEPH POIRIER
Appellant
Gregory Lafontaine for the appellant
David Lepofsky for the respondent
Heard: February 9, 2005
On appeal from conviction by Justice Robert N. Weekes of the Superior Court of Justice, sitting with a jury, dated November 21, 2000 and sentence imposed by Justice Weekes dated February 2, 2001.
BY THE COURT:
1The appellant appeals from his conviction for second degree murder and from the order of parole ineligibility for eighteen years made by Weekes J. The appellant, an inmate of Beaver Creek Institution killed a fellow inmate. The appellant was originally charged with first degree murder. His defence was self-defence and his principal grounds of appeal concern the trial judge’s charge to the jury on that defence. We have not been persuaded that there are any grounds to interfere with the conviction. We are, however, of the view that the trial judge erred in principle with respect to the period of parole ineligibility. The appeal from the order of parole ineligibility is allowed and the period reduced to 16 years.
THE FACTS
2Only a brief review of the facts is required to appreciate the grounds of appeal. There was no issue at trial that the appellant had killed the deceased by plunging a very large kitchen knife into the side of his chest. The only issues were whether the appellant acted in self-defence and, if not, whether the killing amounted to first degree murder, second degree murder or manslaughter. Beaver Creek is a minimum security institution. The inmates do not live in cells but in living units where they are permitted to prepare their own meals. For that purpose, the units have kitchens that are equipped with knives. It was the theory of the Crown that the appellant took one of these knives and used it to stab the deceased. On the Crown’s theory, the motive for the attack was never clear. The appellant and the deceased had known each other in Collins Bay Institution and the Crown suggested that information obtained at that Institution may have led the appellant to want to kill the deceased.
3The Crown’s case turned on the testimony of a number of inmates. There were frailties with this evidence. Most had given prior inconsistent statements. Many had records for crimes of dishonesty. Some of these inmates were friends of the deceased. However, one inmate was relatively independent and came forward on his own after he was released on parole. On his version of events, the attack on the deceased could not amount to self-defence.
4The appellant denied having any motive to kill the deceased. He testified that while he was in the laundry room doing his laundry, he was confronted by the deceased and several of his friends. He claimed the deceased was attempting to pressure him to beat up other inmates. When he refused, the deceased attacked him. In the course of the attack, one of the deceased’s friends tried to pass a knife to him. The appellant fought with the deceased for the knife and then, fearing he would be stabbed, he put all his weight on to the knife and forced it into the deceased. The knife was never recovered but estimates put its blade at six to seven inches. Following the stabbing, the appellant initially denied having anything to do with the incident. After the victim died the appellant spoke to the police and admitted to stabbing the deceased but claimed that he acted in self-defence. The appellant did not claim he was impaired by alcohol or drugs. There were some inconsistencies in the account the appellant gave to the police and his account in the witness box.
THE GROUNDS OF APPEAL FROM CONVICTION
(1) Self-defence
5The appellant submits that the trial judge erred in two respects in his charge to the jury on self-defence. First, he submits that the trial judge instructed the jury in such a manner that they would consider that the test for self-defence was wholly objective. This submission turns entirely on one word. In the course of discussing whether the appellant caused the death under a reasonable apprehension of death or grievous bodily harm within the meaning of s. 34(2) of the Criminal Code, the trial judge told the jury that they must consider whether a reasonable person “would” have had an apprehension of death or grievous bodily harm. The appellant submits that the correct test is whether a reasonable person “could” have had such an apprehension.
6We are satisfied that the jury had a correct understanding of the law. The trial judge gave a very complete and accurate instruction on s. 34(2) generally and on this aspect of the defence in particular. He instructed the jury that in considering the state of mind of a reasonable person they had to consider the appellant’s situation and experiences. He also reminded the jury that a person under attack must often make a decision quickly and does not have time for calm and detached reflection.
7The appellant also submits that the trial judge misdirected the jury on the element of the defence concerning whether he had been unlawfully assaulted. The trial judge reminded the jury of the two versions of events given by the appellant, the one in his statement to the police and the other in his testimony. He told the jury that “On either of these versions of the events, [the appellant] would have been unlawfully assaulted by [the deceased]”. The appellant submits that this improperly limited the defence, since the jury might not believe either version of events and yet still believe something had happened to lead the appellant to defend himself. Alternatively, he submits that the trial judge failed to make it clear to the jury that it was unnecessary that they agree on a single version of events in considering whether the appellant had been assaulted.
8In our view, the trial judge’s instructions were entirely fair. The trial judge was not required to ask the jury to disregard the evidence and speculate on some entirely different version of events. In his general instructions to the jury, the trial judge told them that it was unnecessary that they agree on the evidential basis of their verdict. He was not required to repeat that instruction here.
(2) Manslaughter
9The appellant submits that the trial judge failed to adequately leave manslaughter to the jury. He does not quarrel with the legal instructions but submits that the trial judge should have marshalled the evidence in favour of a manslaughter verdict. He relies here on his own evidence that he did not intend to kill the deceased and that he only stabbed the deceased once. There was no objection to this or any other aspect of the charge to the jury by very experienced defence counsel.
10We are satisfied that the charge was adequate. The trial judge instructed the jury to take into account all the evidence in considering whether the appellant had the intent for murder. The jury could not help but appreciate that this included the appellant’s own evidence. Moreover, the appellant’s own testimony was not very helpful on the intent issue. His evidence that he used all his weight to plunge a knife with a six or seven inch blade into the chest of another man is a very slim reed to rest a submission of lack of intent for murder.
(3) After-the-fact conduct
11As indicated, the appellant gave a number of false statements before he finally told the police of his role in the killing. He submits that the jury should have been told that this evidence was not capable of giving rise to a consciousness of guilt. Alternatively, he submits that the trial judge should have limited the use of this evidence to the question of self-defence.
12The charge to the jury on the after-the-fact conduct was accurate and fair. We will deal first with the appellant’s second submission. In our view, the jury would understand that this evidence was useful only on the question of self-defence. Apart from the issue of first degree murder, that was the real focus of the case and the positions of the parties and the trial judge’s charge on the false statements was centred on the self-defence aspect of the case. For example, the trial judge said the following:
If you find that what [the appellant] said afterwards is consistent with him being conscious of having done what is alleged against him, and not acting in self-defence, you may consider this evidence together with all the other evidence, in reaching your verdict. If you do not or cannot find that [the appellant] said those things for that reason you must not consider the evidence in this way. [Emphasis added.]
13The appellant’s submission that this evidence should not have been left to the jury at all as after-the-fact or consciousness of guilt evidence turns on the fact that none of the other inmate witnesses were forthcoming to the authorities. Mr. Lafontaine submits that this is consistent with the prison code of silence and no legitimate inference could be drawn against the appellant from the conduct, just as no inference could be drawn against the Crown witnesses.
14In our view, this evidence was capable of supporting an inference of consciousness of guilt. The appellant testified and it was not his position that he did not tell the authorities because of any code of silence. He gave an entirely different explanation, which the trial judge fairly and fully put to the jury. Moreover, it was not the position of the defence at trial that no inference could be drawn against the inmate witnesses from their lies to the authorities. Their credibility was attacked on that basis and defence counsel in his jury address suggested that the deceased’s friends lied to the police to cover up their own involvement in the altercation that led to the stabbing. Counsel for the appellant at trial never suggested that the impugned evidence was not capable of being considered after-the-fact conduct.
(4) Character evidence
15In meeting the allegations against him, the appellant testified that he was no longer involved in jailhouse politics, that he had reformed, and had been chair of the John Howard Society group at Collins Bay. The trial judge instructed the jury that this was evidence of good character and he gave the jury the standard instruction concerning the use of good character evidence; that the appellant was more likely to tell the truth and not the type of person who would likely commit the offence. However, the trial judge also instructed the jury that if they concluded the appellant was of bad character, this rebutted the evidence of good character on the issue of credibility. He coupled this direction with the instruction that the jury could not use evidence of bad character to infer that the appellant was the kind of person who would commit the offence charged.
16The appellant submits that this instruction was unfair since it tended to highlight his bad character. The position of counsel for the appellant at trial is important in assessing this ground of appeal. The trial judge provided counsel a draft of his charge to the jury days before he gave the charge. If counsel thought that the good character instruction was unfair or prejudicial to his client he had the opportunity to object both before and after the charge. He did not. The character evidence charge on the whole was favourable to the appellant. It was a legitimate tactical decision for the defence counsel to want the trial judge to place this position before the jury. There was little down side to the defence. We do not accept the position now taken that this part of the charge unfairly prejudiced the appellant.
17For these reasons the conviction appeal is dismissed.
THE PAROLE INELIGIBILITY APPEAL
18The appellant has a prior criminal record for robbery and attempted murder. At the time he killed the deceased he was approaching his statutory release date on a twelve-year sentence for attempted murder. During the trial, the jury was aware that the appellant was serving sentence for some offence and that he had a record for robbery. The jury was not told about the conviction for attempted murder. However, when the trial judge gave the jury instructions on their right to recommend a period of parole ineligibility, at the request of Crown counsel, the trial judge informed the jury of the appellant’s conviction for attempted murder. The jury returned with a unanimous recommendation that the appellant serve twenty-five years before he would be eligible for parole.
19At the sentence hearing, counsel brought the decision in R. v. Nepoose (1988), 1988 ABCA 382, 46 C.C.C. (3d) 421 (Alta. C.A.) to the trial judge’s attention. In that case, the court held that [now] s. 745.2 of the Criminal Code is a complete code and the trial judge should use the words of that section and not permit the parties to present further argument or evidence. In his reasons for sentence, the trial judge stated that had he been aware of the Nepoose decision he might have followed it. He stated that all he could do “at this stage is exercise my best judgment as to the appropriate parole ineligibility period based on the information before me”. The trial judge nevertheless expressly took into account the jury recommendation; he considered it “of some assistance in guiding my decision” but that it was not determinative.
20We agree with the Nepoose decision and in particular with their reasoning at pp. 424-25:
Section 670 [now s. 745.2] is uniquely framed. The precise question required to be put to the jury is set out in quotations and contains within its wording a complete explanation of the jury's responsibility. It is abundantly clear that the jury's decision under s. 670 is not final. No statement whatsoever of the factors to be considered by the jury in making or declining to make such recommendation is set out.
If Parliament had intended that a "recommending jury" under s. 670 consider factors other than the material leading to the conviction, I am satisfied it would have so specified as it did for "final" sentencing pronouncements authorized by ss. 671 [now s. 745.4] and 672 [now s. 745.63].
The person empowered to make the final parole ineligibility decision must hear full submissions and must have regard to the specifics set out in s. 671, including the jury's recommendation. With that recommendation before him, the parties may adduce additional evidence and present arguments to the trial judge with respect to the final disposition of the sentencing.
In short, we are of the view that s. 670 is a code of sorts. It is a section which is complete on its own and says with exactitude what is to be presented to the jury on this issue. We conclude that it was the intention of Parliament that a jury, acting under s. 670, should have put to them the exact question set out in the section along with whatever further explanation of the section the trial judge deems necessary. The jury should respond to the question put to it on the basis of only the evidence and arguments of counsel presented prior to and resulting in the conviction and the trial judge's instructions.
21As a result of the trial judge’s error in this case, we are in the same position as was the Alberta Court of Appeal in Nepoose, where it held at p. 425 that while the trial judge did not follow the recommendation, “we do not know the extent to which it affected his final decision”.
22We are also concerned by one other aspect of the trial judge’s reasons. He stated that the appellant had shown no remorse and then said, “He lied in the witness box.” The fact that the appellant may have lied in his evidence was not a relevant factor. See R. v. Kozy (1990), 1990 2625 (ON CA), 58 C.C.C. (3d) 500 (Ont. C.A.).
23In light of these errors, the decision of the trial judge is not entitled to the usual deference and it falls to this court to determine a fit sentence: Nepoose at p. 426, R. v. Rezaie (1996), 1996 1241 (ON CA), 112 C.C.C. (3d) 97 (Ont. C.A.) at 106 and R. v. McKnight (1999), 1999 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.) at para. 34. That said, we have obtained considerable assistance from the trial judge’s detailed reasons.
24This was a case for an increase in parole ineligibility. Section 745.4 instructs the court to consider the character of the accused, the nature of the offence and the circumstances surrounding its commission. The jury rejected self-defence. Thus, this killing remains both inexplicable and brutal. It was committed in a minimum security institution in which some trust is reposed in the inmates. It is apparent from the evidence that the inmates have considerable freedom to move about the institution and, as we have said, they have access to kitchen implements such as the knife that was used in this case. The deceased was due to be released from prison in a few days. The killing has had a devastating impact on his family. The nature of the offence and the circumstances surrounding its commission required an increase in the parole ineligibility.
25However, the evidence of the appellant’s character is most disturbing. The appellant is now 37 years of age. He has already been convicted of an offence that required proof of an intention to kill. Now he stands convicted of the complete offence. The psychiatric evidence indicates that the appellant has a personality disorder with psychopathic tendencies. He is not, however, a psychopath. Despite anger management treatment the appellant is unable to control his violent impulses. While in the penitentiary he has had numerous institutional charges including assaults, use of drugs and possession of weapons. He admitted to making all kinds of knives and other weapons. He also has made alcohol in prison and used and sold drugs.
26On the other hand, the appellant had made some progress in controlling his behaviour prior to this offence. He was relatively young when he first entered the penitentiary and was victimized by other inmates. He suffers from some symptoms consistent with post traumatic stress disorder. The appellant has an aboriginal background and became involved in activities associated with that part of his heritage. He also assisted a fellow inmate suffering from AIDS.
27Taking all these factors into consideration, we are of the view that an appropriate period of parole ineligibility is sixteen years.
DISPOSITION
28Accordingly, the appeal from conviction is dismissed. The appeal from the period of parole ineligibility is allowed and the period is reduced to sixteen years.
Signed: “Marc Rosenberg J.A.”
“Janet Simmons J.A.”
“S.E. Lang J.A.”
RELEASED: “MR” February 18, 2005
