COURT OF APPEAL FOR ONTARIO
Weiler, Tulloch and Brown JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
André Jeanvenne
Appellant
Ian R. Smith and Amy J. Ohler, for the appellant
Michael Bernstein, for the respondent
Heard: January 21, 2016
On appeal from the conviction entered on July 5, 2012 by Justice Colin D.A. McKinnon of the Superior Court of Justice, sitting with a jury.
A. Overview
1The police suspected that the appellant was involved in the unresolved murders of Donald Poulin in 1983, and Michel Richard in 2000. The RCMP set up a fictitious criminal organization, commonly known as a “Mr. Big” operation, in which an apparently successful crime boss hired the appellant, and, having obtained his trust, the appellant allegedly confessed to the two murders. In 2005, a jury convicted the appellant of two counts of first-degree murder based on evidence from that operation.
2This court set aside both convictions on the basis that the trial judge erred by failing to grant an application for severance of the two murder counts. The murders occurred 17 years apart, had no similarities and no forensic evidence linked the appellant to either murder. Having regard to the common sense proposition that because the accused may have committed one murder, a jury may have great difficulty in refraining from drawing the impermissible inference that he was likely to have committed the other, this court held severance ought to have been granted. Blair J.A., on behalf of the court, held that while one conversation the appellant had on November 22, 2002 allegedly contained an admission to both murders, the evidence could have been given in separate trials with appropriate redactions to the other murder as may have been required: R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462,at paras. 34 and 40.
3At the appellant’s re-trial for the murder of Poulin, the jury was unable to reach a verdict resulting in a mistrial. The charge was later stayed by the Crown.
4The appellant’s re-trial for the murder of Richard resulted in his conviction for first-degree murder again. During that trial, the jury heard evidence that the “Mr. Big” operation allegedly elicited an unrecorded bald admission to undercover officer S.G. that he murdered Richard. The appellant provided no details about how the murder was committed. Despite this court’s implicit direction in Jeanvenne2010, the Crown also elicited evidence from S.G. that, in the same conversation, the appellant also allegedly made a bald admission to killing Poulin.
5Subsequently, in R. v Hart, 2014 SCC 52, [2014] 2 S.C.R. 544, the Supreme Court of Canada held that a confession obtained as a result of a “Mr. Big” operation is presumptively inadmissible. There is a real danger the individual wanting to join the organization may want to impress “Mr. Big” and falsely confess. Another danger is propensity reasoning from bad character evidence. The court placed the onus on the Crown to establish that the probative value of the confession, including its reliability, outweighs its prejudicial effect.
6On this appeal, the appellant submits that none of the evidence obtained during the Mr. Big operation ought to have been admitted against him because its prejudice outweighed its probative value. In addition, the appellant raises various grounds of appeal all relating to the trial judge’s charge to the jury. Overall, the appellant submits that the charge was not balanced and fair.
7I agree that the charge to the jury on motive and confirmatory evidence was deficient and that, overall, the charge was not balanced and fair. Accordingly, I would allow the appeal and order a new trial.
8In view of my decision, it is unnecessary for me to consider the extent to which bad character evidence ought to have been permitted at trial and the trial judge’s charge to the jury as to the use they could make of it. However, in discussing the charge on motive and confirmatory evidence, I must deal with a discrete incident of bad character evidence that arose during the trial. In addition, I wish to express my disapprobation at the Crown’s introduction of references to the Poulin murder during the appellant’s re-trial for the murder of Richard. The introduction of that evidence which had the effect of undermining this court’s earlier implicit directive and the change in the legal framework governing the admissibility of evidence from a “Mr. Big” operation brought about by Hart fortifies my decision that a new trial is necessary.
B. facts
(1) Circumstances of the offence
9Michel Richard was found dead in his apartment on May 17, 2000. There had been a violent struggle in the bedroom, but no signs of forced entry. The autopsy revealed that the cause of death was blood loss from two injuries: the severing of the aorta by a .32 calibre bullet and the severing of the right common carotid artery as a result of a stab wound to the lower jaw. The 18 sharp force wounds to Richard’s head, neck chest, arms and back were not life-threatening and some were defensive wounds.
10The deceased allegedly was known to keep a substantial quantity of drugs in his apartment. A small quantity of what appeared to be marijuana was found.
(2) Evidence of the appellant’s criminal associates linking him to the Richard murder
11There was no direct evidence linking the appellant to the scene of the crime.
12Denis Bruyère testified that he sold crack cocaine for the appellant and that late one night in May 2000 he had gone to the appellant’s house to pick up drugs and had seen the appellant fumbling with a gun that he believed was a .32 calibre. The appellant was agitated and talked about “a score to settle.” When he met the appellant the next day, the appellant told him not to call him on his cell phone because “there was a lot of heat”. The following day, the appellant picked Bruyère up in his car and as they drove past Richard’s apartment building, he said: “One my friends was killed there and they’re going to come hound me for this” – that “every time someone got killed” the police would question him.
13Charles Felteau, another criminal associate, testified that the appellant admitted to killing Richard to him. The appellant allegedly told Felteau that Richard had informed on the appellant by reporting his involvement in a break and enter, and a theft. After Richard’s death, the appellant told Felteau that he was glad Richard was dead – that he deserved what he got. He was a “rat”. The appellant told Felteau he had “dumped” Richard. Speaking more generally, the appellant said that “when you’re killing someone…you should look them in the eyes and tell them why you’re killing them…do it slowly so the person knows exactly why you’re killing them.” The appellant explained that he prefers small calibre handguns – .25 or .32 – because they cause death slowly. He mentioned that a small calibre handgun was also a good way to demobilize somebody “to do whatever else you wanted…”
14The jury also heard the testimony of Jean-Claude Massie given at the appellant’s first trial since he died before the appellant’s re-trial. Massie had testified in great detail about the appellant’s role in the break-in of Henry Amusements, the break-in about which Richard allegedly told the police. Massie testified that about five to six months before Richard’s death, the appellant had been going around saying Richard was an informer for the police.
(3) The Mr. Big operation
15About two years after Richard’s death, the RCMP began an undercover operation to extract confessions from the appellant regarding the deaths of Poulin and Richard. The appellant needed money when he started working for a “Rod Calibria”, who would become “Mr. Big” from a fictional criminal organization. He participated in many successful “bonding scenarios” with the Mr. Big organization over a lengthy period of time. The appellant said the police suspected him of two to three homicides including Richard’s murder. He said that Richard had ratted on the appellant and that shortly after that, he died. The appellant did not admit to any involvement in Richard’s death.
16The appellant was introduced to “Rob” another criminal who had a “problem”, implying that he needed a witness to be killed. The appellant volunteered to do the job. During a recorded conversation, the appellant initially denied having experience killing people. After he was pressed, he conceded that he had “whacked” four people who had been close friends. He denied killing Richard.
17The key aspect of the Mr. Big evidence was the appellant’s alleged confession to Officer S.G., who posed as a member of a closely related criminal organization. On November 22, 2002, while driving from Thunder Bay to Montreal, the appellant allegedly told S.G. that Richard had reported the appellant’s break and enter to the police and that the appellant had served time for it. According to S.G., the appellant said that when he was sure Richard was the rat, “J’y ai faite la passé.” S.G. testified this meant the appellant had killed him. The appellant also said the police found the body “toute décrisser” but he was not worried because the police would have arrested him by now if they had anything. The conversation and the alleged confession were not recorded.
18Days later, Calibria confronted the appellant and intimated that he knew the appellant had given names of persons he had killed to S.G. He wanted the names. For two hours, the appellant repeatedly denied ever giving a name to S.G. or killing Richard. He maintained that the last time he had killed anyone was over 12.5 years ago. The appellant said that “[he] said bullshit to make a name for himself.” The appellant and Calibria agreed their relationship was over.
19The investigation concluded with a staged kidnapping. Afterwards, S.G. asked the appellant about “cleaning up his past”. Again, the appellant refused to provide any information.
C. discussion and analysis
(1) References to the Poulin murder during the appellant’s trial
20During the course of the appellant’s trial for the murder of Richard, the Crown led evidence that the appellant had confessed to the Poulin murder. The introduction of this evidence was no accident. When Crown counsel was examining S.G. in-chief about the November 22 conversation, the key conversation in the “Mr. Big” operation, S.G. testified that he said to the appellant “you should have told me and Rod [Calibria] that there was heat on you for the murder of Michel Richard.” The Crown then asked the following:
Q. And I understand you also include the other names in the conversation about the heat, correct?
A. The other name that he mentioned?
Q. That’s right.
A. Yeah, there was another name, Poulin.
21The evidence that the appellant confessed to murdering another person, Poulin, as well as Richard, was not an essential part of the background narrative respecting the “Mr. Big” operation. Moreover, in ordering a new trial because there had been no severance, this court had effectively decided that its prejudice outweighed any probative value.
22The appellant submits that the evidence respecting the Poulin murder was unduly prejudicial and could not be cured by the mid-trial instruction against propensity reasoning together with the judge’s charge to the jury on general bad character evidence, which in itself, is alleged to be deficient.
23In response, during the hearing of this appeal, the respondent placed before the court a letter of agreement dated March 6, 2012, written by the trial Crown to defence counsel confirming a telephone conversation they had. The letter states in part:
During our conversation this morning you also indicated you would not oppose the Crown’s application to lead evidence of discreditable conduct relating to your client. The discreditable conduct evidence that the Crown intends to lead was laid out in our Notice of Application. To be clear, the Crown intends to lead the following evidence;
The 14 October 2002 statement containing confession to the murder of Donald Poulin.
Mr. Jeanvenne’s involvement and participation in series of supposedly criminal acts, including payments received.
Evidence relating to the Bouclair Fabric Store break in, including arrest of Rick Paradis (5 August 2002) and damaging night deposit at the Laurentian Bank (20 August 2002) and Mr. Felteau’s evidence as it relates to the Bouclair Fabric store.
Mr. Jeanvenne divulging information about his criminal background to;
a. [R.L.]
b. [R.J.]
c. [S.G.]
- The 29 November 2002 statement wherein Mr. Jeanvenne interweaves into his refusal to “name Names” with references to criminality.
The previous 5 points were the subject of a similar application prior to Mr. Jeanvenne’s trial on the killing of Donald Poulin. On the date set to contest the Crown’s application you conceded that items 2 through 5 were admissible in the first trial. Justice Lalonde [the judge presiding over the Poulin retrial] ultimately ruled that all of the discreditable conduct the Crown wished to lead was admissible.
The evidence of Denis Bruyere
The evidence of Charles Felteau
24Mr. Smith, counsel for the appellant, who was not counsel at trial, advised the court that he was unaware of this letter until it was produced before us.
25It is regrettable that the trial Crown sought to lead evidence of the Poulin murder. Although Lalonde J. ruled that all of the bad character evidence respecting the appellant was admissible, during the appellant’s trial for the Poulin murder no reference was made to the Richard murder.
26Notwithstanding the Crown’s letter, defence counsel may have been under the impression that, similarly, during the Richard trial no reference would be made to the Poulin murder. I say this because during the trial and in the absence of the jury, defence counsel objected to the Crown’s gratuitous introduction of references to the Poulin murder on at least two occasions. Following this, in addition to the trial judge’s midtrial instructions on prejudice, some attempt was made to have the witnesses who were testifying limit their reference to extraneous bad character evidence.
27On appeal, the Crown contends that the defence made a tactical decision to agree to the introduction of bad character evidence because the defence wanted to argue the appellant’s vulnerable circumstances led him to confess: he was desperate for money and his personality was such that he wished to portray himself as a capable criminal.
28Any tactical decision of the defence was taken in light of the prior ruling of Lalonde J. with respect to the Poulin trial. Furthermore, no tactical advantage has been shown to the appellant’s alleged admission of the Poulin murder during this trial. Simply put, it was irrelevant and its likelihood to cause prejudice through propensity reasoning was high. Counsel’s purported agreement to the introduction of that evidence cannot be used to shield it from scrutiny.
29While the Crown may have observed the letter of the court’s direction, in that separate trials were held, the Crown did not observe the spirit and implicit direction given in Jeanvenne2010, aimed at ensuring the appellant’s Charter protected right to a fair trial. It is cause for great concern. With this background in mind, I now turn to the charge to the jury.
(2) Fairness of the trial judge’s charge to the jury
30Trial judges are faced with the difficult task of properly instructing a jury, especially in cases involving evidence with limited permissible use and other complicated issues of law. The law is well settled that an accused is entitled to a properly instructed jury, not a perfectly instructed jury: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 2. Although mistakes are bound to occur, there is no justification for a jury charge that is not even-handed, as it undermines an accused’s s. 11(d) Charter right to a fair trial: R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481 (C.A.), at paras. 116-18.
31This court has stressed the importance of a fair and balanced charge: Baltovich, at para. 118. Fairness requires, among other things, that the charge explain the theories of each side and review the salient facts in support of those theories: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 29. As noted by Taschereau J. in Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at p. 498, a trial judge need not review every piece of evidence, but “[t]he pivotal question upon which the defence stands must be clearly presented to the jury’s mind.”
32So long as the substance of the defence position was put to the jury, a charge will not be unfair or unbalanced merely because the trial judge did not spend an equal amount of time reviewing the parties’ evidence: R. v. Nelson, 2014 ONCA 853, 318 C.C.C. (3d) 476, at para. 47.
33An appellate court must consider the charge as a whole and its overall effect in reviewing a trial judge’s instructions: Daley, at para. 31.
(a) The charge on motive was deficient
34A key aspect of the Crown’s case was that the appellant’s motive for killing Richard was that he was a “rat” who provided information about a break-in involving the appellant eight years before the murder.
35Felteau testified that after Richard’s murder, the appellant obtained a piece of paper that had been given to the Children’s Aid Society indicating that Bruyère had told CAS about a gun. According to Felteau, the appellant was upset and said that Bruyère ought to be “dumped”, which he took to mean that Bruyère ought to be killed.
36The defence sought to neutralize the evidence of motive and Felteau’s evidence in its cross-examination of Bruyère. The defence succeeded in having Bruyère admit that when he had sought to work with the appellant again, the appellant called him a rat and simply told him he didn’t want to work with him anymore. The appellant did not threaten to kill him and had taken no steps to harm him afterwards.
37Following defence counsel’s cross-examination, the Crown led reply evidence that while Bruyère was giving evidence at the appellant’s preliminary inquiry the appellant made a gesture putting his hand to his own head as if he had a gun and said, “T’es mort”, meaning “You’re dead”. He repeated the same thing at trial as Bruyère passed by him after Bruyère’s testimony. Bruyère testified that the appellant also called him “mon mangeux de merde”, meaning “a rat”.
38The Crown contends that the cross-examination by the defence opened the door to the evidence of the alleged threats to Bruyère being led in reply. A similar submission is made with respect to the evidence that during the preliminary inquiry the appellant also threatened Felteau.
39No ruling was made with respect to whether the prejudicial effect of this bad character evidence outweighed its probative value.
40Quite apart from the admissibility of this reply evidence, in his charge to the jury, the trial judge stated:
You will recall during the course of this trial that Mr. Jeanvenne made a threat to Mr. Bruyère, telling him, “You are dead, you rat,” in the French language, according to the evidence of Mr. Bruyère. Detective Monette overheard the threat as being, “Dead. Eat shit.” It is for you to decide what was said. Threats were also made to Mr. Felteau [sic] during the course of the preliminary inquiry. You may consider the evidence of these threats to determine whether you believe Mr. Jeanvenne has a strong distaste for those who implicate him in crimes.
41In his overview of the parties’ positions, the trial judge again charged the jury as follows:
Crown counsel rely heavily on the evidence of the strong motive to kill Mr. Richard disclosed in the evidence; and the fact that Mr. Jeanvenne had a very low opinion of “rats”, which was even exhibited during the course of this trial with his threats to Mr. Bruyère.
42The appellant submits that the trial judge’s charge to the jury contained only the inculpatory aspects and not the exculpatory aspect of the evidence respecting motive.
43The Crown points out that defence counsel did not object to this aspect of the trial judge’s charge to the jury. The failure of counsel to object to the judge’s charge to the jury is, of course, a relevant consideration that may inform a court's conclusion on both the overall accuracy of an instruction and likely impact of the error. It is, however, only one consideration: Jacquard, at para. 38; see also R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129; R. v. Chambers, 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293.
44I agree with defence counsel’s submission that in this case the trial judge’s instruction to the jury on motive was deficient in several respects and that this error was serious. The trial judge did not tell the jury they should consider Bruyère’s evidence that the appellant had simply refused to deal with him after calling him a rat and had not harmed him. Assuming, had a voir dire been held, that the evidence of the threats during the proceedings was admissible, he did not tell the jury what the permitted use of the evidence was, namely, so that the jury would have a complete picture with respect to motive. He did not caution the jury about the prohibited use of the reply evidence, namely, that propensity reasoning based solely on evidence of the threats made during the proceedings was prohibited.
45He did not ask the jury to consider whether, if they were satisfied the appellant made the threats to Bruyère and Felteau during the proceedings, his threats were due to anger and indignation at being falsely accused of taking revenge on Richard. In this regard, I note that after the trial judge determined that the evidence should be admitted without a proper voir dire, at which the appellant would have testified, the appellant addressed the trial judge directly: “He [Bruyère] knows – he knows how I am, he knows I get pissed off. It’s not because I’m guilty of the crime, it’s because I can’t stand this piece of shit.”
46Overall, the trial judge did not put the defence position on motive to the jury.
(b) The crime scene evidence cited as being confirmatory was not confirmatory; the crime scene evidence favorable to the defence was not mentioned.
47The trial judge told the jury that Bruyère and Felteau benefitted from testifying against the appellant. Felteau was never charged with conspiracy to commit a robbery of the Second Cup at the Civic Hospital; Bruyère was indebted to the appellant in the amount of $7,500 when he made his statements to the police. (He omitted to say that Bruyère may also have had a reason to falsely accuse the appellant to regain custody of his daughter from the Children’s Aid Society.) He noted that the jury did not see Massie testify.
48The trial judge also told the jurors that common sense required they look at the evidence of these witnesses with the greatest care and caution, that it was dangerous to rely on their evidence without confirmation.
49The trial judge then suggested to the jury that the photographs from the crime scene were capable of confirming Felteau’s evidence and instructed them as follows:
Mr. Felteau testified that in a conversation with Mr. Jeanvenne, Mr. Jeanvenne told him that if a person were to be murdered, the person must first be rendered defenceless. Then the person should be told very slowly why the person is being murdered, and then the person should be executed with a small calibre weapon so that death would come slower than with a larger calibre weapon. If you believe that Mr. Jeanvenne made this statement to Mr. Felteau… then you might conclude that the murder scene as depicted in the photographs tendered in evidence reflects this statement.
50There was no evidence that the murder scene confirmed relevant portions of Felteau’s testimony. The respondent’s oral submission that Richard was killed in the manner described by Felteau because he was shot at close range is speculation. The expert who testified about the crime scene gave evidence that Richard and the killer were engaged in a violent struggle which might explain why the shooting took place at close range. There was no evidence that Richard was immobilized or experienced a slow, painful death. Indeed, the expert evidence was that death would have been practically instantaneous from the stab wound to the carotid artery and bullet wound to the aorta. The expert could not say in which order the injuries were inflicted.
51The respondent’s further submission that a correct charge respecting confirmatory evidence would not have benefitted the appellant is no answer in this case to the prejudice caused by the trial judge’s erroneous example of confirmatory evidence.
52Moreover, the trial judge omitted to charge the jury regarding evidence from the crime scene that supported the defence position. The trial judge put to the jury the defence theory that Richard was killed as a result of a violent struggle during a robbery, possibly for drugs. However, he omitted to tell the jury that, according to the Crown’s expert, the crime scene photographs were consistent with a violent struggle. Having regard to the evidence reviewed by the trial judge in favour of the Crown’s position, the fact that the appellant did not testify and the paucity of evidence supporting the defence, it was all the more important that the trial judge give the jury what there was in order for the charge to be balanced and fair.
53The appellant raises other issues with respect to the trial judge’s charge to the jury concerning the trial judge’s instructions on the use that could be made of the bad character evidence. However, given the seriousness of the errors above, I need not address the other grounds of appeal raised.
D. Conclusion
54I am of the opinion that a new trial is required having regard to the important role motive played in this trial and the trial judge’s deficient charge to the jury on motive in that he did not put the defence position regarding motive to the jury, his erroneous prejudicial example of confirmatory evidence and his omission to put to the jury relevant evidence that supported the defence position.
55I would add that the evidence led of the appellant’s confession to the Poulin murder during this trial and the Supreme Court’s decision in Hartonly serve to reaffirm my conclusion that, overall, the appellant’s trial was not fair.
56Accordingly, for the reasons I have given, I would allow the appeal and order a new trial.
Released: (K.M.W.) February 5, 2016
“K.M. Weiler J.A.”
“I agree M. Tulloch J.A.”
“I agree David Brown J.A.”