Court of Appeal for Ontario

Date: 2022-08-25 Docket: C65433

Before: Fairburn A.C.J.O., Miller and George JJ.A.

Between: Her Majesty the Queen, Respondent And: Paul Alves Faria, Appellant

Counsel: Richard Litkowski, for the appellant Grace Choi, for the respondent

Heard: February 15, 2022 by video conference

On appeal from the conviction entered on November 9, 2015 by Justice Gregory M. Mulligan of the Superior Court of Justice, sitting with a jury.

B.W. Miller J.A.:

Overview

1On New Year’s Day, 2013, Vicky Doyle was found dead on the floor of her bedroom. The cause of death was strangulation. She suffered extensive injuries, including fourteen rib fractures, four jaw fractures, massive rupture of her liver, and extensive bruising and facial lacerations. The pathologist who conducted the post-mortem examination believed the pattern of fractures to be attributable to “stomping”.

2Following a trial before a jury, the appellant, who had been in an intimate relationship with Ms. Doyle, was found guilty of first degree murder. The appellant had been charged under s. 231(6) of the Criminal Code, R.S.C. 1985, c. C-46, which deems murder first degree: (1) where death is caused by a person while committing the offence of criminal harassment and (2) that person intended to cause the victim to fear for her safety.

3The Crown’s case against the appellant was circumstantial. The appellant gave two statements to the police in which he stated that the night of the murder he had followed Ms. Doyle back to her home after a New Year’s Eve party at the home of mutual friends, but that he left after she told him she wanted to be alone. Physical evidence connecting him to the murder included DNA evidence – specifically of the victim’s blood splattered on articles of the appellant’s clothing – and bruising on the appellant’s toe.

4The Crown argued at trial that the evidence of the interactions between the appellant and Ms. Doyle over the preceding months demonstrated a pattern of escalating and obsessive controlling behaviour on the part of the appellant, amounting to criminal harassment. The appellant had struck Ms. Doyle while they were staying together at a motel. As their relationship continued to deteriorate, the appellant repeatedly phoned and messaged Ms. Doyle, showed up inside her home, drove by her house, and attended her social events uninvited. It was alleged that the appellant had caused Ms. Doyle to be fearful for her safety, and that Ms. Doyle had told her mother that the appellant had said to her, “if I can’t have you nobody can.”

5The Crown’s theory was that the appellant followed Ms. Doyle home from the New Year’s Eve party – the last in a long series of harassing acts by which the appellant intended to instil fear in Ms. Doyle and make her reconcile with him – and murdered her when she refused him. He then attempted to cast suspicion away from himself by sending 14 increasingly anxious text and voice messages to her in which he appeared to be desperately trying to contact her. The Crown asked the jury to draw the inference that the messages were a ruse intended to make it appear that the appellant did not know that Ms. Doyle had been killed, to divert suspicion from himself.

Issues on Appeal

6The appellant advanced four grounds of appeal:

(1) The trial judge erred in his instructions on post offence conduct by failing to delineate the specific offence to which the conduct was allegedly connected. The jury was left unclear as to which offences or to which specific issues the post offence conduct was relevant.

(2) The trial judge erred in admitting evidence of prior misconduct by the appellant (a prior assault on Ms. Doyle) where the probative value of the evidence was overborne by its prejudicial effect, and where the trial judge did not assist the jury in understanding to what use the evidence could be put.

(3) The trial judge erred in admitting evidence of ante mortem statements by Ms. Doyle, which amounted to piling on of needlessly repetitive evidence, and in his instructions as to how those statements could be used.

(4) The trial judge erred in leaving with the jury a route of liability for first degree murder through criminal harassment pursuant to s. 231(6). The appellant argues that the aspect of “while committing” was not present in this case, and that there was insufficient evidence of specific intent.

Analysis

(1) Post Offence Conduct

7In the hours after Ms. Doyle had been killed, the appellant sent text messages to Ms. Doyle’s cell phone and to his son’s cell phone (ostensibly looking for Ms. Doyle), and left voice messages for Ms. Doyle, both on her cell phone and residential line. The first three calls used the cell tower closest to Ms. Doyle’s residence, supporting an inference that the appellant was either in the house at the time of the calls or in the near vicinity, and contradicting his statement to the police that he started phoning Ms. Doyle after he returned to his own residence at the Wasaga Motel. The Wasaga Motel would normally have been served by a different cell tower. In addition, the Crown argued that the timing of the calls was unusual; in the preceding six months the appellant had never phoned his son in the time period of 12:30 a.m. to 6:00 a.m., and had only ever placed one call to Ms. Doyle during that time frame. The Crown had argued that the texts, phone calls, and voicemails were a ruse intended by the appellant to deflect suspicion from him.

8The appellant argued that the trial judge erred in his instructions to the jury by failing to explain to which offence and to what issues the phone calls and text messages related. That is, the appellant argued, the trial judge ought to have explained to the jury that this evidence was only relevant to two issues: (1) establishing identity – whether the appellant was the perpetrator of the homicide; and (2) whether the appellant committed the offence of criminal harassment. The jury ought to have been instructed that the evidence of the texts, phone calls, and voicemails were not relevant to determining the appellant’s degree of culpability for homicide: first degree murder, second degree murder, or manslaughter.

9I do not agree that the trial judge erred. First, it is telling that defence counsel at trial did not object to the wording of the jury instruction on this point, which substantially followed Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015). Although a failure to object is not determinative that no error was made, the fact that defence counsel – who heard all of the evidence and argument and thus shared with the jury an understanding of the context in which the instructions were given – did not perceive an error in the instructions suggests there was no error to see: R. v. Goforth, 2022 SCC 25, at para. 52.

10Second, it was obvious from the jury instructions that the post offence conduct related to the issue of the identity of the assailant. The trial judge addressed the text messages and phone calls in his review of the evidence relating to the first element of the charge of first degree murder, under the heading “Did Paul Faria cause Victoria Doyle’s death?”. The trial judge specially instructed the jury to consider the appellant’s statement that he left Ms. Doyle’s residence, returned to the motel, and began phoning her, and to “consider the phone calls and texts he sent after leaving her residence.” He drew the jury’s attention to the Crown’s position that the phone calls were “an effort to distance himself from the murder.” The jury would not have had any difficulty understanding that the purpose of this evidence was to identify the killer: R. v. Cornelius, 2011 ONCA 551, 283 O.A.C. 66, at paras. 23-24.

11Third, a specific instruction that the messages and phone calls were not relevant to the appellant’s degree of culpability was, again, not sought by the appellant at trial, and as explained below may have been erroneous had it been given. There is no categorical rule against the use of post offence conduct to determine level of culpability: R. v. Calnen, 2019 SCC 6, at para. 119, per Martin J. (dissenting, but not on this point); R. v. Café, 2019 ONCA 775, at para. 55. Whether post offence conduct is relevant to level of culpability depends on the specific conduct, its relationship to the record, and the issues raised at trial.

12In this case, although the post offence conduct would not have assisted the jury to determine whether the murder was planned and deliberate under s. 231(2), planning and deliberation was not the path to first degree murder pursued by the Crown. The Crown’s theory was that manslaughter was not a realistic possibility on the evidence, and that if the appellant was found to be the assailant, the level of culpability would be murder in either first or second degree. What raised the culpability to first degree was the contemporaneous criminal harassment of the victim under s. 231(6).

13The Crown did not raise this argument at trial. The trial judge therefore did not discuss how the post offence conduct evidence was relevant to finding first degree murder as opposed to second degree murder. On appeal, the Crown proposed a theory of how the jury could have used the evidence not only for identity but to raise the liability for murder to first degree: the appellant attempted to deflect suspicion by acting as though he did not know Ms. Doyle was dead. To maintain the ruse, he tried to maintain the appearance of his customary behaviour towards Ms. Doyle, which was the harassing behaviour of continual text and phone messages. In oral argument, counsel for the appellant argued that regardless of whether this line of reasoning was available, it was never put to the jury, and cannot be used on appeal to justify an inadequate instruction.

14As I have already said, I do not agree that the instruction was inadequate. The evidence was unmistakably relevant to identity, i.e., whether the appellant was the assailant. The jury was well-instructed with respect to that issue. The evidence was also relevant, as the Crown argued for the first time on appeal, to the issue of harassment. But the fact that the trial judge did not explain that the evidence could also provide further support for a finding that the appellant had been engaged in harassment of Ms. Doyle – and thus potentially culpable for first degree murder – did not prejudice the appellant.

(2) The Appellant’s Prior Conduct

15The trial judge admitted evidence by Ms. Doyle’s friend Cheryl that Ms. Doyle had told her that the appellant had assaulted her at a motel in Oshawa in November 2012. He was said to have hit Ms. Doyle in the head and pushed her onto the bed in the motel room because he was angry with her. In the ruling on the pretrial motion on the admissibility of this evidence, the trial judge concluded that it “bears significantly on animus and motive”, and “can provide part of the unfolding narrative of criminal harassment should the jury accept that such statements were made.” With respect to its prejudicial effect, he found that:

[T]he evidence about the alleged assault in the hotel room does not rise to the level of moral prejudice so that a jury would leap to the conclusion that an individual would commit murder because he had hit, pushed, or “boxed the ears” of the victim some six weeks earlier. As with any hearsay evidence, the jury ought to be warned about the limited use of such evidence when they consider the motive or animus or criminal harassment aspect of this case. Such a warning would be appropriate in this case.

16In his charge to the jury, the trial judge provided such a warning about prohibited use of the evidence: “you may not conclude that since Paul Faria hit and pushed Vicky Doyle on a prior occasion, he is more likely to have murdered her”; “you may not use the evidence to conclude that Paul Faria is a bad person, and so is more likely to have committed the offence with which he is charged. Nor may you use the evidence to punish Paul Faria for past misconduct by finding him guilty of the offence charged.”

17As the appellant argues, the charge did not expressly relate this evidence to animus or motive, but only to the criminal harassment aspect of first degree murder, and in particular, the threatening conduct aspect of criminal harassment:

To engage in threatening conduct means to do something that, in all the circumstances, including the relationship between Paul Faria and Victoria Doyle, a reasonable person would consider a threat or intimidation. The threat does not have to be carried out or repeated but Paul Faria must intend that it be taken seriously.

Members of the jury, consider the incident at the bar in Oshawa, which Vicky Doyle told her friend, Cheryl Young about, as well as Paul Faria’s derogatory comments at the bar in Oshawa. But recall that this incident happened quite some time before January 1. Was Vicky Doyle threatened by it or had that incident been forgiven and forgotten about? Look at the continuation of their relationship after that event.

18The jury, therefore, was instructed it could consider the evidence of the Oshawa incident for the purpose of determining whether the appellant criminally harassed Ms. Doyle. The trial judge also told the jury that it “may not use the evidence for any other purpose.”

19The appellant argued that the trial judge erred in admitting the evidence, particularly given that in the jury instruction the trial judge did not relate the evidence to the issues of animus or motive – as anticipated in the pretrial ruling – but instead restricted its use to the issue of whether the appellant was engaged in threatening behaviour, which is one of the four prohibited forms of criminal harassment enumerated in s. 264(2): repeated following, repeated communicating, besetting/watching, and threatening conduct. When this narrower purpose is considered, the appellant argued, the probative value of the evidence becomes minimal, and is clearly outweighed by its prejudicial effect.

20I am not persuaded by this argument. First, the trial judge made no error in his characterization of the degree of prejudice presented by the evidence. The evidence was that the appellant “boxed her ears” and shoved her on the bed. It was a single blow, followed by a push. Although undoubtedly serious, the act was not of a nature that would lead a jury to conclude that the appellant was therefore likely to commit murder several weeks later. The potential prejudice remained low.

21Second, although there was a significant body of other evidence that also supported a finding that the appellant was harassing Ms. Doyle, the evidence about the Oshawa incident had significant, additional probative value. At trial, the Crown argued that the evidence of the Oshawa incident related to criminal harassment in four ways. First, as a matter of contextual background, the Crown argued that it marked the beginning of the deterioration of the relationship between the appellant and Ms. Doyle. Second, the Crown argued that the appellant was criminally harassing Ms. Doyle through all four of the modes of conduct prohibited under s. 264(2) (repeated following, repeated communication, besetting/watching, and threatening conduct), and the Oshawa incident was a particularly salient example of threatening conduct. Third, the fact that the appellant had been violent with Ms. Doyle supported the allegation that Ms. Doyle took the appellant’s threats seriously and was fearful of him. Fourth, the Crown used the Oshawa incident as evidence that the appellant intended her to fear him.

22The trial judge made no error in his ruling on the pretrial motion that the evidence was admissible, and this decision was not undermined by the later decision at trial to restrict the use of the evidence to the single issue of whether the appellant criminally harassed Ms. Doyle. The risk of prejudice was slight and the probative value to this issue was significant. The trial judge amply explained the use to which the evidence could be put and explained impermissible uses. The jury was well equipped by the trial judge to deal with this evidence.

(3) Ante Mortem Statements of the Deceased

23The appellant argued that the trial judge erred in admitting evidence of the eight or nine witnesses who testified as to what Ms. Doyle had told them – and what they themselves had observed – about Ms. Doyle’s relationship with the appellant, the appellant’s possessiveness, and Ms. Doyle’s intention to end the relationship decisively after New Year’s. The appellant argued that this evidence was needlessly cumulative, giving rise to a risk of reasoning prejudice and moral prejudice. In particular, the appellant argues that he was prejudiced by pointless repetition of witnesses of the same point: that Ms. Doyle was fearful of the appellant. The evidence was unnecessary not simply because it was needlessly repetitive, but because Ms. Doyle’s frame of mind was evident from her text messages; the jury was given 522 text messages sent over 127 days. Prejudice to the appellant could also have been minimized by providing the jury with excerpts of the evidence given by the witnesses at the preliminary hearing, rather than oral evidence at trial.

24The appellant argued in the alternative, that if the evidence was properly admitted by the trial judge, the trial judge failed to properly instruct the jury on the use they could make of the evidence. It was only admissible to establish her state of mind, not his. The trial judge did not explain to the jury that they could not use this evidence to infer that the appellant intended to make Ms. Doyle fearful, or that he intended to harm her and did harm her.

25As I will explain, I do not agree that the trial judge made any reviewable error.

26The determination of whether the evidence was unnecessary and whether it carried an unacceptable risk of moral and reasoning prejudice were discretionary decisions, entitled to deference. It was for the trial judge to decide whether the evidence was needed or whether it was needlessly repetitive: R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at paras. 60-61. The trial judge provided ample reasons for allowing the witnesses to testify. He noted in his reasons on the motion that the proposed witnesses would be testifying about different statements made at different times, and that this evidence would help the jury understand the unfolding narrative of the deterioration of the relationship. Eliminating the witnesses would sanitize the evidence of the relationship. The victim was not available to testify, the context of the text messages and the inferences to be drawn from them was disputed by the defence, and so the text messages could not stand by themselves. The witnesses were essential to understanding the text messages.

27With respect to the deference owed to the weighing of the probative value and prejudicial effect of the evidence, it is also significant, as the Crown argued, that the nature of the offence of criminal harassment is that it involves repetitive conduct and distress. The many statements made by Ms. Doyle to multiple people over a prolonged period of time provided evidence not only of continual harassment but of the degree of distress that she was experiencing as a consequence.

28I do not agree that the jury was not adequately instructed with respect to the appropriate and inappropriate uses of the ante mortem statements. The appellant argued that more was needed to prevent the jury from reasoning from Ms. Doyle’s statement (made in relation to the appellant’s threat that he would commit suicide if she left him), “I’m afraid that he’ll take me with him”, to the conclusion that this was also evidence of the appellant’s state of mind – specifically that the appellant intended to harm Ms. Doyle.

29Although the jury was not expressly instructed not to use the ante mortem statements for this purpose, as the Crown argued, it was reasonably clear from the structure of the jury instruction the purposes to which the statements evidencing Ms. Doyle’s fear could be used. For example, in relating the evidence to the issues in the instruction, the trial judge highlighted the statement, “I’m afraid that he’ll take me with him” as relevant to determining whether the appellant’s conduct caused Ms. Doyle to fear for her safety. It was not referenced in relation to the question of whether the appellant caused Ms. Doyle’s death or whether the appellant had the state of mind required for murder. In regard to whether the appellant had the state of mind required for murder, the jury was instructed to consider “what he did or did not do; how he did or did not do it; what he said or did not say; and the nature and extent of the injuries to Victoria Doyle.” There was no risk that the jury would misunderstand that proof of Ms. Doyle’s fear was also proof, without more, that the appellant intended that she be fearful. The jury was, of course, entitled to use the evidence of Ms. Doyle’s state of mind as providing some evidence of the failing relationship, which provided a motive for the appellant to threaten her and to harm her. This court has held that in this way, “evidence of [the deceased’s] state of mind had an indirect connection to the appellant’s state of mind.”: R. v. Foreman (2002), 62 O.R. (3d) 204, at para. 30, leave to appeal refused, [2003] S.C.C.A. No. 199; R. v. Skeete, 2017 ONCA 926, 357 C.C.C. (3d) 159, at para. 84, leave to appeal refused, [2018] S.C.C.A. No. 508. A more explicit instruction of this nature was not sought by the defence, and would have run the risk of strengthening the Crown’s case in relation to motive and identity.

(4) Route to First Degree Murder through Criminal Harassment

30The Crown’s theory of culpability for first degree murder was based on s. 231(6), which elevates murder to first degree when committed while committing the offence of criminal harassment. To obtain a conviction, the Crown is required to prove beyond a reasonable doubt the underlying offence of criminal harassment under s. 264, and the additional element that the accused intended the victim of the harassment to fear for her safety. It is not sufficient to prove that the victim feared for her safety.

31The appellant argued: (a) there was insufficient evidence that the appellant committed a murder while he was committing criminal harassment; (b) there was insufficient evidence that the appellant had the specific intent that the victim fear for her safety; and (c) the jury instruction was inadequate. As explained below, I do not agree.

(a) Insufficient evidence of criminal harassment

32The Crown was required to prove that the murder was committed while the appellant was committing the additional offence of criminal harassment. The criminal harassment must be distinct from the act of killing, and the killing and harassment must be temporally and causally connected so that each forms part of a single course of conduct: see R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at paras. 19, 25-28; R. v. Parris, 2013 ONCA 515, 30 C.C.C. (3d) 41, at paras. 51-52; R. v. McLellan, 2018 ONCA 510, 362 C.C.C. (3d) 183, at para. 69, leave to appeal refused, [2019] S.C.C.A. No. 338.

33The Supreme Court recently reviewed the meaning of “while committing” in the context of s. 231(5) in R. v. Sundman, 2022 SCC 31. Like s. 231(6), s. 231(5) is a matter of the commission of murder “while committing or attempting to commit” an enumerated offence. The Court clarified that asking whether the enumerated offence and the murder were a “single transaction”, or asking whether there was a temporal and causal connection between the murder and the enumerated offence are merely different verbal formulations of the same inquiry. If the acts form a single transaction, there will be a temporal-causal connection, and vice versa: Sundman, at para. 39.

34At trial, the appellant brought a motion for a directed verdict on the basis that the evidentiary record did not support the inference that the appellant was committing the offence of criminal harassment while committing the murder. The motion was dismissed. The appellant renews this argument on appeal.

35The appellant argues that in order to satisfy its burden, the Crown must prove that the appellant was committing the offence of criminal harassment while the murder was taking place. He argues that the Crown cannot do so because: (1) there was no evidence that the appellant knew Ms. Doyle would be at the New Year’s Eve party; (2) the two communicated by text while at the party; (3) Ms. Doyle left the party, went home to shower and change, and then returned to the party, knowing the appellant would be there; (4) Ms. Doyle had opportunities to leave the party to go bowling with her children and go to a bar with a former colleague; and (5) there was no evidence that he forced entry into Ms. Doyle’s home.

36In the alternative, the appellant argued that if there had been harassment, there had been a break in the harassment prior to the killing, such that the harassment and the killing were not parts of a single transaction.

37I disagree. First, there was ample evidence of harassment immediately prior to the killing. Harassment, by its nature, can be both continual and intermittent. It is continual in the sense that it is a pattern of behaviour. It is intermittent in that the pattern of behaviour is constituted by a series of discrete acts, which may be separated by days or weeks. Whether harassment can be characterized as “continuing” at any particular moment in time can be inferred by reference to the pattern of harassing behaviour that preceded that moment. In this case, what was alleged was that the appellant engaged in a course of conduct for months, particularly beginning with the Oshawa incident, intending to discourage Ms. Doyle from leaving him out of fear of what he might do to her. The analysis of whether the appellant was engaged in criminal harassment while committing the murder includes a consideration of conduct at and after the New Year’s Eve party, but necessarily extends further back in time to provide the necessary context. The Crown highlighted the following:

• Ms. Doyle sent a text message to a friend shortly before 8:00 p.m., saying “What can I say, pauls turned out to be a stalker. We have to chat!”
• At the party, when the host’s brother suggested that the appellant drive Ms. Doyle home, she reacted with “panic” and “anger”, waving her arms to signal “no”, clenching her teeth, and mouthing for him stop.
• The appellant told police he parked his truck behind Ms. Doyle’s car so she could not drive home. He said that he wanted to drive her home because they had both been drinking. When she refused, he followed her back to her house uninvited.
• Ms. Doyle’s house was in disarray in multiple rooms. A chair was overturned on the dining room floor. A winter coat was on the floor. An ottoman was on its side in the living room. Ms. Doyle’s body was found on the floor of her bedroom. This supported an inference that Ms. Doyle was pursued through the house and into her bedroom before the beating and strangling.
• Ms. Doyle’s body was found in the bedroom, with knee-high winter boots, supporting an inference that the pursuit through the house and the attack began before she had a chance to take her winter boots off. Similarly, bloodstains and her DNA were found on both sleeves of the appellant’s outdoor jacket, suggesting he had not taken it off.

38The foregoing is ample evidence that the pattern of harassment was continuous with the murder.

(b) Insufficient evidence that the appellant had the specific intent that Ms. Doyle fear for her safety

39The appellant argued that there is no evidence that the appellant subjectively intended to cause Ms. Doyle to fear him – it was not sufficient that she reasonably feared for her safety.

40Again, I disagree. This court has held that the mental element of intention to cause fear can be inferred from even a single act: R. v. Smith, 2014 ONCA 324, 308 C.C.C. (3d) 254, at paras. 40-41. There was evidence that the appellant said and did several things capable of supporting the inference that he intended her to fear him. Most proximate to the murder, the state of Ms. Doyle’s house suggests an aggressive pursuit intended to cause Ms. Doyle to fear. Prior to that was Ms. Doyle’s mother’s evidence that the appellant had told Ms. Doyle, “if I can’t have you, nobody can”. Prior to that was the Oshawa incident, where the appellant assaulted Ms. Doyle after accusing her of flirting with men at a bar. Each of these incidents is capable of supporting the inference that the appellant sought to control Ms. Doyle through her fear of his threats of violence and actual violence.

(c) Was the jury instruction inadequate?

41The appellant argues that the jury instruction addressing the continuous single transaction issue and the specific intent issue were insufficient and erroneous.

42With respect to the single transaction issue, the appellant argues that the trial judge ought to have explained to the jury that the conduct that constituted the predicate offence – the criminal harassment – must be distinct and independent from the murder. The jury was not equipped to understand that the harassment had to be separate from the killing, and could not end prior to the killing.

43This submission is without merit. The trial judge explained that criminal harassment had to be distinct from killing, and explained that acts of criminal harassment had to be something distinct from the acts of violence that commonly precede and facilitate a killing.

44Similarly, there could be no misunderstanding that the criminal harassment had to be closely connected to the murder. In this case, the murder was immediately preceded by the acts of harassment outlined above. The acts of harassment (blocking Ms. Doyle’s car in the driveway, following Ms. Doyle home from the party, entering Ms. Doyle’s home and chasing Ms. Doyle through the house) were characterizable as acts of harassment by the way they fit into the pattern of harassment that was observed by the witnesses over the preceding months. All of this would have been obvious to the jury. No further instruction was necessary.

45With respect to specific intent, again, there was no error in the instruction. The trial judge instructed the jury to answer the question “Did Paul Faria intend to cause Victoria Doyle to fear for her own safety?” by assessing “Mr. Faria’s state of mind” and looking at “Mr. Faria’s words and conduct.” The trial judge did refer to some of the evidence about Ms. Doyle’s concerns for her safety, but this would not have confused the jury as to their task. The trial judge also reminded the jury of the appellant’s explanation to police that he was “drunk and stupid” when he sent Ms. Doyle certain text messages and his subsequent apology.

Disposition

46I would dismiss the appeal.