COURT OF APPEAL FOR ONTARIO
O’CONNOR A.C.J.O., JURIANSZ and ROULEAU JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
P. Andras Schreck and
Jennifer A.Y. Trehearne
for the appellant
Respondent
- and -
JEFFREY JOHN SALT
Christine Bartlett-Hughes
for the respondent
Appellant
Heard: February 28, 2007
On appeal from the conviction entered by Justice Bernard J. Manton of the Superior Court of Justice, sitting with a jury, on June 22, 2000 and the sentence imposed on December 18, 2000.
BY THE COURT:
1The appellant was convicted of second degree murder and sentenced to life imprisonment with no parole eligibility for fifteen years.
2For the reasons set out below, we are satisfied that the conviction for murder cannot stand. Crown counsel indicated that should the appeal be allowed, she was not seeking a new trial for murder and is content that we substitute a manslaughter conviction. Similarly, the appellant is content that we enter a conviction for manslaughter. In our view, this is an appropriate disposition.
3The appellant raised five grounds of appeal. Given our disposition of this appeal, we find it necessary to refer to only one of the grounds of appeal.
4In our view, the instructions to the jury with respect to the element of intent necessary to found a conviction for murder were flawed. Towards the beginning of the portion of the charge pertaining to murder, the trial judge read s. 229(a) of the Criminal Code to the jury. He then read s. 229(c). That provision is as follows:
- Culpable homicide is murder
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being. [Emphasis added.]
5The trial judge explained s. 229(c) as follows:
Section 229(c) deals with homicide which occurs while a person commits another unlawful object. If a person does anything for an unlawful object that he knows or might know is likely to cause death, and the death results from this, it is culpable homicide. [Emphasis added.]
6It is well-established that liability for murder cannot be based on any mens rea less than subjective foresight. Accordingly, the part of s. 229(c) allowing for conviction upon proof that the accused ought to have known that that death was likely to result is unconstitutional: R. v. Martineau (1990), 1990 80 (SCC), 58 C.C.C. (3d) 353 at 362-363 (S.C.C.). The trial judge should not have referred to the unconstitutional language in his charge.
7Later in the charge, the trial judge summarized his instructions to that point on the essential ingredients on a charge of murder as follows:
For the Crown to succeed on a charge of murder, it must prove beyond a reasonable doubt the following ingredients:
The identity of Mr. Salt as the offender.
The time and place of the offence as set out in the indictment.
That Mr. Salt committed an unlawful act.
4.That the unlawful act caused the death of Mr. Dufresne.
8This list was incomplete in that it did not include the need for subjective intent. However, subsequently, the trial judge did repeat the language of s. 229(a) which requires subjective intent. He did not refer to s. 229(c) again.
9At trial, defence counsel made a number of objections to the charge, one of which referred only very briefly to s. 229(c) and to the trial judge’s use of the language “or might know would cause the death”. The objection, however, did not direct the trial judge’s attention to Martineau or the unconstitutionality of the objective intent language in s. 229(c).
10Before the objections were completed, the jury asked a question about the essential elements of murder. The trial judge recharged the jury the following day. He repeated that the essential ingredients for murder were those set out in para. 8, above. Again, at this point in his instruction he made no mention of the need to establish subjective intent. Later in his recharge, the trial judge correctly told the jury that for second degree murder, the Crown must prove the appellant meant to cause the deceased’s death or else meant to cause bodily harm that he knew was likely to cause death and was reckless as to whether death ensued.
11After hearing further submissions, the trial judge called the jury back and instructed them as follows:
It was brought to my attention that I may have missed something during my charge and although I did speak to you yesterday regarding intention on murder, I want to tell you this, all murder, that is first or second degree, requires that the person who caused the death of a human being either intended to cause his death or intended to cause him bodily harm that he knew was likely to cause death and was reckless whether death ensued or not.
12The jury retired and returned a verdict of guilty of second degree murder two days later.
13The Crown argues that the second recharge cured any confusion in the earlier instructions about the need for subjective intent. We would agree with this submission except that this recharge was not in fact the last word on the issue.
14At some point during the charging process, the jurors were given copies of certain sections of the Criminal Code, including s. 229(c). It appears that the unconstitutional words in s. 229(c) “or ought to know” were not deleted from the copies given to the jury.
15We say it appears because a copy of what was given to the jury is not available. However, a fair reading of the transcript indicates that the jury very likely received documents with the unedited version of s. 229(c). Indeed, there were discussions about editing certain other provisions, but not s. 229(c). No one now suggests that a properly edited version of s. 229(c) was given to the jury.
16That being the case, it then becomes necessary to assess the impact on the jury of receiving the unedited version of s. 229(c). For the reasons that follow, we are of the view that it would be unsafe to assume the jury did not attach importance to it.
17To start, the jury was out for two days after the trial judge’s final recharge on the issue of intent. There was a very real likelihood that members of the jury would, over time, attach more importance to the sections of the Code provided to them in writing than to the oral instructions from the trial judge. At one point during the charging process, the jury had asked for a French version of the Criminal Code sections. Moreover, the trial judge did not tell the jury in his oral instructions to disregard his initial instructions with respect to s. 229(c). Indeed, the fact that the jurors were provided with a written copy of the section would reasonably lead them to conclude that they should consider the section.
18One can well imagine that as the deliberation process continued, members of the jury would be inclined to focus on the precise language of the sections that they had been given in writing. It is worth noting that the Crown’s theory was that the appellant was involved in killing of the deceased during the course of kidnapping and forcible confinement which are unlawful acts. It would not have been unreasonable for the jury to have specific regard to s. 229(c), which sets out the elements of unlawful object murder.
19The fact that the jury was provided with an unedited version of s. 229(c), resulted from an unfortunate oversight. In fairness to the trial judge he did not get much help from counsel who were asked to prepare the copies of the sections to be given to the jury and who did not point out the problem with the language in s. 229(c). While defence counsel did raise an objection with respect to the section, she was not specific about what needed to be done to cure the problem. Be that as it may, we are satisfied that the potential that some of the jurors were misled as to the need for subjective intent for a murder conviction is sufficiently real that the appellant’s conviction for second degree murder cannot stand.
20Ordinarily, it would be necessary to order a new trial for murder, there being some evidence to support a conviction for murder. However, as we have said, the Crown does not seek a new trial for murder and is content that we substitute a manslaughter conviction as is the appellant. In our view, this is an appropriate disposition. While there was evidence on which a jury could convict of second degree murder, the evidence of the subjective intent necessary for a conviction for murder was not strong. There was substantial evidence to support a conviction for manslaughter. Indeed, the Crown accepted a plea to manslaughter from the other individual who was charged with this offence.
21Further, the events giving rise to the conviction are now over ten years old. The trial took place in 2000. The appellant has been in custody for over ten years. Clearly, a new trial could be very difficult for both sides.
22The parties have made a joint proposal as to sentence for manslaughter. We think the proposal is reasonable. The appellant spent four years and five months in pre-trial custody and has served six years and three months since the time of sentencing. If the pre-trial custody were to be credited on a two-for-one basis, the appellant has served the equivalent of over fifteen years.
23The parties agree that the appropriate sentence for a manslaughter conviction at the time of trial would have been eight years in addition to pre-trial custody.
24In the result, by exercising the authority given to us under ss. 686(1)(b)(i) and 686(3) of the Code, we dismiss the appeal against conviction and substitute a conviction on a charge of manslaughter. We sentence the appellant to eight years imprisonment commencing on December 18, 2000.
25Finally, we would like to thank counsel for the effective way that they presented their arguments and the sensible way that they approached the disposition of this appeal.
RELEASED: “DOC” “APR 12 2007”
“Dennis O’Connor A.C.J.O.”
“R.G. Juriansz J.A.”
“Paul Rouleau J.A.”