Court of Appeal for Ontario
Date: January 5, 2017 Docket: C55302
Justices: Sharpe, van Rensburg and Pardu JJ.A.
Parties
Between
Her Majesty the Queen Respondent
and
Joseph Nicholson Applicant/Appellant
Counsel
Erin Dann and Janani Shanmuganathan, for the appellant
David Finley, for the respondent
Hearing
Heard: November 23, 2016
On appeal from: The conviction entered and the sentence imposed by Justice Guy P. Di Tomaso of the Superior Court of Justice, sitting with a jury, on June 2, 2010.
Decision
Pardu J.A.:
Facts
[1] Two groups of young males, some fueled by alcohol, traded insults at an apartment building on Strabane Avenue in Barrie, Ontario. One group was on the front lawn of the apartment building; the other was inside an apartment. Tensions escalated between the two groups throughout the morning of June 16, 2007.
[2] The appellant, Joseph Nicholson, came to the apartment after he received a call from the occupants. He entered the apartment through the back door and soon stormed out of the building to confront the other group, followed by three others. Two members of the outside group, Jeremy Rodgers and Joseph Tanner, were stabbed in the altercation. Mr. Rodgers survived but Mr. Tanner died from his injuries.
[3] After the stabbings, the appellant and his associates went back into the apartment and left the apartment building through the back door. Upon leaving the premises, the appellant dropped a knife in a sewer. The four young men eventually took a cab to the appellant's apartment where they changed their clothing.
[4] Relying on a statement he made to the police, the appellant's position at trial was that he stabbed Rogers in self-defence and denied that he stabbed Tanner.
[5] A jury convicted the appellant of attempted murder of Mr. Rodgers and first degree murder of Mr. Tanner.
A. Issues
[6] The appellant appeals from conviction on four grounds:
The trial judge erred in his instructions on the appellant's after-the-fact conduct, consisting of flight, disposal of evidence and change of clothing.
The trial judge's relation of evidence to the jury relevant to planning and deliberation was heavily weighted in favour of inculpatory evidence and made scant reference to evidence suggesting an absence of planning and deliberation. The trial judge's charge to the jury also included evidence that was irrelevant to the issue of planning and deliberation, and was inconsistent with the trial judge's earlier rulings refusing to leave party liability on the murder or manslaughter of Mr. Tanner to the jury.
The trial judge's jury instructions on the intent required for murder were insufficient.
The trial judge erred in refusing to redact references to the appellant being bipolar from statements admitted at trial. The appellant submits that this stigmatized him in the eyes of the jury.
B. Analysis
(1) After-the-fact conduct
[7] The after-the-fact conduct in issue in this case consisted of the appellant's flight from the scene, disposal of evidence, and change of clothing.
[8] The appellant acknowledges that after-the-fact conduct can be relevant to the assessment of an accused's claim of self-defence: R. v. Rodgerson, 2014 ONCA 366, at para. 53, aff'd 2015 SCC 38, at para. 27; R. v. Peavoy (1997), 34 O.R. (3d) 620, at p. 631-32 (C.A.).
[9] Both trial counsel and the trial judge agreed that evidence of the appellant's after-the-fact conduct was irrelevant to the murder charge, but could be left to the jury in assessing the claim of self-defence in relation to the attempted murder charge. The trial judge explicitly told the jury that this evidence "relates only to Mr. Nicholson's claim of self-defence regarding Jeremy Rodgers and cannot be used in determining the criminal culpability of Mr. Nicholson regarding Joey Tanner."
[10] However, as the trial judge proceeded to charge the jury on the issue of self-defence and the relevance of the after-the-fact conduct on the attempted murder charge, the trial judge continually referred to the "offences charged". For example, the trial judge charged the jury as follows:
On the other hand, if you find that Joseph Nicholson actually did or said what he is alleged to have done or said after the offences were committed, you must consider next whether this was because Joseph Nicholson was conscious of having committed the offences charged or for some other reason.
If you find that Joseph Nicholson actually did or said what he is alleged to have done or said after the offences were committed, you must be careful not to immediately conclude that he did or said so because he was conscious of having committed the offences charged.
[11] The appellant submits that use of the plural "offences" undermined the trial judge's express instructions that the evidence of the appellant's after-the-fact conduct was relevant only to the attempted murder charge and invited the jury to consider the after-the-fact evidence in relation to both offences charged.
[12] I disagree with that submission. In my view, the jury would not have disregarded the trial judge's express instructions that the after-the-fact conduct could only be used in determining the appellant's criminal culpability with respect to the attempted murder offence because the trial judge used the plural "offences" in the part of the charge dealing with the claim of self-defence on the attempted murder charge.
[13] The trial judge instructed the jury on the included offence of aggravated assault for the attempted murder charge, although this was not an included offence on the language of the indictment. The use of the plural "offences" could reasonably refer to both the attempted murder and the aggravated assault which the trial judge treated as an included offence.
[14] The appellant also argues that the after-the-fact conduct had no probative value in the particular circumstances of this case. In his statement to police, the appellant ultimately suggested that he might have gone too far in defending himself. Since he admitted to some moral culpability, the appellant argues that evidence of his conduct following the offence does not shed light on whether he acted in legitimate self-defence. He submits that the after-the-fact conduct does not make the claim of self-defence more or less credible.
[15] I disagree. As indicated in Rodgerson, at para. 51:
Post-offence conduct need not point to only one reasonable inference to be relevant and admissible to prove a fact in issue. If the inference urged by the Crown is reasonably available, the post-offence conduct will be left with the jury, who, after considering any competing inferences available, will determine what effect, if any, should be given to the post-offence conduct evidence.
[16] The inferences sought by the Crown from the flight, disposal of the knife, and change of clothing were reasonably available to the jury, although other inferences were possible. The trial judge did caution the jury that there might be other explanations for the after-the-fact conduct.
(2) Jury charge on planning and deliberation
[17] The trial judge provided legal instructions in relation to the planned and deliberate elements of the offence of first degree murder. He then related some of the evidence to planning and deliberation to the jury as follows:
PLANNING
The purpose of Mr. Nicholson's attendance at 67 Strabane Avenue was related to the presence of Chris Hutton and company. He had received calls from Massey and Deschamps to come to 67 Strabane to make sure nothing happened. There were problems at the apartment building. Mr. Nicholson said he would try to find a way to get there. According to Deschamps it was left open-ended.
Mr. Nicholson took a cab instead of waiting for the next city bus at the bus terminal to make his way to 67 Strabane.
Mr. Nicholson had the cab drop him off at the back of 67 Strabane concealing his arrival. He went into the back of the building through the back door and made his way directly to apartment #1.
Upon entering apartment #1, Mr. Nicholson put his bag down. There was little, if any, conversation. Mr. Nicholson said words to the effect "let's go" or "let's go deal with this". Mr. Nicholson was first to go out the front door with Mr. Massey, Gibbs and Deschamps following behind.
Prior to reaching the front door, Nicholson removed his shirt.
Mr. Nicholson brought a knife to 67 Strabane on the morning of June 16, 2007. He was seen with this knife the night before.
Mr. Nicholson readied the knife in the open position prior to exiting the front door of 67 Strabane.
Mr. Nicholson forcefully opened the front door of 67 Strabane with Massey, Gibbs and Deschamps following behind.
With speed, Mr. Nicholson approached the group including Joey Tanner and Jeremy Rodgers.
Upon reaching the group, did Mr. Nicholson, without any advance warning, stab Jeremy Rodgers and Joey Tanner immediately after the other?
Did Mr. Nicholson's conduct involve a plan to take his victims by surprise? Was it a quick, simple and co-ordinated ambush?
Was Mr. Nicholson's plan demonstrated in his physical movements which were quick, focused and purposeful? You may recall the evidence of Kenneth Hale, Jeremy Rodgers, Margaret Smith-Kelly and Chris Hutton in this regard.
Did Mr. Nicholson's plan involve not only his own physical movements but also the synchronized physical movements of Massey, Gibbs and Deschamps?
After Mr. Nicholson opened the front door, did Mr. Nicholson and Mr. Massey diverge in their direction of travel in order for them to confront the two closest males, Rodgers and Tanner?
Did Mr. Massey have his knife taken away by his brother Deschamps and was left to attack only with his fists?
Did Mr. Nicholson use the manhole knife to stab both Jeremy Rodgers and Joey Tanner in quick succession to disable them?
Was the manner in which Joey Tanner quickly stabbed and disabled, suggest an intent to kill?
Did Mr. Nicholson remove himself from 67 Strabane as quickly as he came there by immediately fleeing out the back way?
Mr. Nicholson made an utterance to Massey, Deschamps and Gibbs of the stabbing, to the effect, "now I have a body under my belt".
DELIBERATION
Were Mr. Nicholson's actions considered actions and not impulsive? Did Mr. Nicholson have sufficient opportunity to deliberate?
Was there time before the phone calls between Nicholson, Massey and Deschamps and his attendance which provided Nicholson with not only time to plan out his conduct but to deliberate on it and consider if and how it would work?
Nicholson was aware of the "beef" between Hutton and Massey prior to his arrival after speaking with Massey and Deschamps. Did Nicholson have time to consider what approach, if any, he would take in dealing with Hutton and company?
Mr. Nicholson arrived at 67 Strabane with a knife in his pocket. Why did he bring the knife to 67 Strabane?
Nicholson removed his shirt before going outside. What was his purpose in removing his shirt?
Before exiting the front door of 67 Strabane, Nicholson readied his knife in the open position. It was available and ready for use.
Prior to exiting apartment #1, Nicholson had observed how many males were outside and where they were located when he arrived by cab. Did his awareness provide Nicholson with any tactical advantage in how he would approach them, where, and how he would escape 67 Strabane?
Did the manner in which Nicholson run out with others behind him demonstrate any thought process on the part of Nicholson to obtain an advantage in numbers?
Did Nicholson's brief time in the apartment and limited discussion suggest any prior development of a plan and knowledge of an intention to confront his victims along with Massey, Deschamps and Gibbs?
Did Nicholson's manner of escape suggest a predetermined thought process relating to escape?
[18] Many of these elements are equally consistent with a plan to confront and assault the members of the other group, as opposed to a plan to commit murder. The facts identified by the trial judge and the manner in which the list was organized eclipsed this distinction. For example, the fact that the appellant removed his shirt before reaching the front door may be probative of a plan to fight rather than to murder.
[19] Moreover, some of the evidence identified by the trial judge was irrelevant to the issues of planning and deliberation. For example: "Was the manner in which Joey Tanner quickly stabbed and disabled, suggest an intent to kill [sic]". To get to the issues of planning and deliberation, the jury would have already concluded that the accused intended to kill the victim. This question blurs the distinction between the intent to kill, and planning and deliberation.
[20] This list was also heavily weighted towards evidence supporting the Crown's case. Significant parts of the evidence supporting the defence were not included in the trial judge's summary of the evidence on planning and deliberation, including, notably, the accused's own statement to police given within 24 hours of the stabbing, which the Crown placed into evidence.
[21] In his statement to police, the appellant told police that he did not know the members of the other group. He said he had no special relationship with the individuals in the house and that he only knew one of them. He brought beer to the house, and went there in part to visit. He also went there to help the individuals who were in the apartment deal with the group that was outside, kicking the window of the apartment. Members of the inside group had called the appellant that morning and asked for help.
[22] The appellant also told the police that when he left the house to confront the other group, he ran out of the door, "pumped," ready to fight. He may have said, "let's go and take care of them", to get the other group away from the apartment.
[23] He told police that he hit the guy who came after him. He said he was protecting himself but that "maybe I did it a little bit too much." He said that he and the others who were in the house "never had no big plans" when they embarked on the fight with the other group of young men. He had been drinking. He agreed that he had a temper and that rage might have taken over before his brain kicked in. He said he was bipolar and had been trying to get medication for four years, and that as a result he "snapped". He said the situation "totally escalated way out of control" and was "pretty quick."
[24] As well, these stabbings took place in broad daylight, on a residential street with many witnesses. The fact that the appellant carried a knife would not suggest planning and deliberation if it was his usual habit to carry one.
[25] The trial judge did not relate any of the foregoing evidence, relevant to the issues of planning and deliberation, to the jury.
[26] Defence counsel did not object to the charge, and the charge was the result of consultation with counsel. This is not determinative, however, where the charge is so one-sided that it amounts to unfairness.
[27] The Crown acknowledges that this was a weak case of first degree murder, and asks that this court substitute a verdict of guilty of second degree murder if we accept the appellant's arguments that the charge on planning and deliberation was flawed.
[28] As I would give effect to this ground, I need not address the other arguments made in relation to first degree murder.
(3) Instructions on intent to kill
[29] In oral argument, the appellant did not pursue the position advanced in his factum that the instruction on the intent to commit murder was also unfair. Those instructions focused on the circumstances immediately surrounding the stabbings and the parts of the victims' bodies that were stabbed – close to Mr. Rodgers' heart and three times in Mr. Tanner's back. I do not accept the argument that the aspect of the charge pertaining to the mental state required for murder was unfair in the same way as the trial judge's instructions on planning and deliberation.
(4) Refusal to remove references to the appellant being bipolar from statements tendered as evidence by the Crown
[30] The appellant's own statement to police and an out-of-court statement by a recanting witness, Mr. Gibbs, who was with the appellant in the house prior to the altercation, were placed in evidence before the jury. As indicated above, the appellant told police that he was bipolar, that he had been trying to get medication for four years, and that, as a result, he snapped during the confrontation. Mr. Gibbs told the police he was afraid of the appellant, who he characterized as "messed up" and "bipolar."
[31] The appellant submits that the trial judge's refusal to remove his own and Mr. Gibbs' references to his being "bipolar" could have prejudiced him in the eyes of the jury, and that this bad character evidence tended only to show that he was the type of person likely to have committed the offence.
[32] The appellant referred to his own mental condition in explaining why he acted as he did in stabbing Mr. Rodgers. This was relevant to the appellant's state of mind at the time of the offence and potentially supportive of his claim of self-defence. I am not persuaded that the prejudicial effect of this evidence necessarily outweighed its probative value. In any event, these two isolated references to the appellant's being "bipolar" would not have had any impact on the outcome, given that the statements were made in the context of a jury trial that lasted approximately 13 weeks, the submissions by the Crown made no reference to this evidence, and the submissions by the defence and the charge to the jury were similarly silent in this respect. The jury would not have considered Mr. Gibbs to be a reliable diagnostician of the appellant's mental health.
C. Disposition
[33] Accordingly, I would dismiss the appeal from conviction on all counts, but pursuant to s. 686(1)(b)(i) and (3) of the Criminal Code, substitute a conviction for second degree murder for the conviction for first degree murder. The matter is remitted back to the trial judge for sentencing pursuant to s. 686(3) of the Criminal Code.
Released: January 5, 2017
"G. Pardu J.A."
"I agree Robert Sharpe J.A."
"I agree K. van Rensburg J.A."
