Court of Appeal for Ontario
Date: December 11, 2019
Docket: C63798 & C65191
Panel: Hoy A.C.J.O., Doherty and Zarnett JJ.A.
Between
Her Majesty the Queen Respondent
and
Gurpreet Ronald Appellant
AND BETWEEN
Her Majesty the Queen Respondent
and
Bhupinderpal Gill Appellant
Counsel
Catriona Verner and Lance Beechener, for the appellant, Gurpreet Ronald
James Harbic and Robert Harbic, for the appellant, Bhupinderpal Gill
Christine Bartlett-Hughes and Michael S. Dunn, for the respondent
Heard
November 13, 2019
On Appeal
From the convictions entered by Justice Julianne A. Parfett of the Superior Court of Justice, sitting with a jury, dated July 20, 2016.
Doherty J.A.:
I. Introduction
[1] Jagtar Gill was home alone recovering from an operation in the early afternoon of January 29, 2014. Someone entered her home, beat her with a metal bar, stabbed her many times, and slashed her throat. She died almost immediately.
[2] The appellants were charged with first degree murder. They were both convicted and they both appeal.
[3] There are various issues raised on appeal, however, ultimately both appeals turn on whether the trial judge erred in failing to leave potential liability on the included offence of second degree murder with the jury in respect of Gurpreet Ronald. As I am satisfied the trial judge did err, and that the error requires a new trial for both appellants, I need not address the other grounds of appeal. In my view, none of the other grounds of appeal could succeed, absent the error in failing to leave a conviction on second degree murder for Ms. Ronald as a possible verdict.
II. Overview
[4] At trial, the Crown argued that the appellant, Bhupinderpal Gill ("Mr. Gill"), who was Ms. Gill's husband, had conspired to murder Ms. Gill with the appellant, Gurpreet Ronald ("Ms. Ronald"). Mr. Gill and Ms. Ronald had been romantically involved for years. The Crown submitted that in furtherance of the plan, Ms. Ronald had gone to the Gill residence around noon on January 29, 2014, under the pretense of borrowing some tools and visiting Ms. Gill. Ms. Ronald and Mr. Gill had arranged that Mr. Gill would run some errands with his daughter, leaving Ms. Gill alone. Before leaving his home, Mr. Gill had removed the weights and fixtures from a weight bar he kept in the basement and took the bar upstairs to the family room so Ms. Ronald could use it in her attack on Ms. Gill. The Crown argued that, when Ms. Ronald arrived at the Gill home, she used the bar to repeatedly strike Ms. Gill. She also stabbed Ms. Gill many times. The attack ended with Ms. Ronald slashing Ms. Gill's throat.
[5] After killing Ms. Gill, Ms. Ronald left the Gill home, contacted Mr. Gill and met him briefly at a nearby store. Mr. Gill returned home with his daughter and found his wife's body in the family room on the main floor. He called 911. Mr. Gill found the bloody weight bar near the body and hid it in the basement. There was also evidence that he attempted to wash blood from two knives he found near his wife's body.
[6] Mr. Gill testified in his own defence. He acknowledged the long-running affair with Ms. Ronald, but indicated that it had ended a few months before the murder. He had told Ms. Ronald he would not leave his wife. Mr. Gill testified that his relationship with his wife was improving at the time of her death and that his marriage had not been better for quite some time. He insisted that he had nothing to do with his wife's death.
[7] Mr. Gill admitted hiding the bloody weight bar in his basement and later attempting to dispose of the weight bar. He testified that, when he realized that the bloody bar used to kill his wife was his own weight bar, he feared that he would be blamed for her death by her family, so he tried to get rid of it.
[8] In his closing submissions, counsel for Mr. Gill urged the jury to find that Ms. Ronald had killed Ms. Gill, but that she had acted alone, perhaps in furtherance of her own plan, or perhaps as a result of a "spontaneous" decision made by her when she was at the Gill home. Counsel submitted to the jury that something may have happened between Ms. Ronald and Ms. Gill that caused Ms. Ronald to "go berserk". Counsel pointed to evidence that, on at least three prior occasions, Ms. Ronald had threatened her husband with a knife when they were arguing.
[9] Ms. Ronald also testified. She, too, denied any involvement in the killing. According to her, she went to the Gill home to borrow some tools and visit with the convalescing Ms. Gill. This kind of visit by someone who knew the family was expected in Ms. Ronald's culture. Ms. Ronald testified that the front door was open and when she went inside, she found Ms. Gill's bloody body on the floor in the family room.
[10] Ms. Ronald testified that she panicked, thinking that she would be blamed because she had been Mr. Gill's lover. In the course of this panic, she picked up a large kitchen knife that was near the body. She took a pair of disposable gloves from a box on a nearby table and tried to clean blood from the knife, but cut her finger. She then went to various parts of the house looking for a Band-Aid. Ms. Ronald testified that she left the house with the knife, the gloves, and the box. The knife and the box had blood on them. According to Ms. Ronald, she later threw the large knife and the gloves into a snowbank. The police later recovered the knife and gloves. One of the gloves was missing a finger.
[11] Ms. Ronald testified that she left the Gill home shortly after discovering the body. She immediately drove to her own home nearby. Ms. Ronald called Mr. Gill to find out if he knew what had happened at his house. They spoke very briefly. Ms. Ronald and Mr. Gill met at a nearby store about 10 minutes later. Once again, they spoke briefly. Mr. Gill then headed to his house with his daughter. His daughter found the body when she went into the house ahead of Mr. Gill.
[12] The trial judge told the jury that Mr. Gill was either guilty of first degree murder, or not guilty. This "all or nothing" instruction, as it applies to Mr. Gill, was not challenged at trial or on appeal. There was no evidence that Mr. Gill participated in his wife's murder, except as a co-conspirator in a plan to murder his wife that was carried out by Ms. Ronald. If the jury accepted that evidence, Mr. Gill was guilty of first degree murder. If the jury had a doubt about his participation in the plan, Mr. Gill had to be acquitted.
[13] The trial judge also instructed the jury that there were only two verdicts available with respect to Ms. Ronald. She, too, was either guilty of first degree murder or not guilty. This instruction was challenged by counsel for Ms. Ronald at trial and is the main focus of the appeal.
[14] Counsel for Ms. Ronald accepts that the evidence pointed strongly to her as the killer. Counsel contends, however, that there was an evidentiary basis upon which a properly instructed jury could realistically have a doubt as to whether the murder was planned and deliberate. To take that possibility into account, the trial judge had to instruct the jury on Ms. Ronald's possible liability for the offence of second degree murder, the correct verdict if the jury was satisfied that Ms. Ronald was the killer, but had a doubt about whether the murder was planned and deliberate. [1]
[15] Counsel submits that the failure to leave a conviction for second degree murder as a possible verdict for Ms. Ronald constitutes reversible error. Counsel contends that any jury faced with the strong evidence that Ms. Ronald killed Ms. Gill would be most reluctant to find Ms. Ronald not guilty. A jury presented with only two possible verdicts, guilty of first degree murder or not guilty, would almost inevitably choose the verdict that holds Ms. Ronald responsible for Ms. Gill's death. She asks the court to order a new trial on the charge of first degree murder.
[16] Counsel for Mr. Gill contends that the failure to leave the possibility of a conviction for second degree murder in respect of Ms. Ronald seriously prejudiced his defence. At trial, counsel for Mr. Gill argued that Ms. Ronald had killed Ms. Gill, and had acted alone in doing so. Counsel acknowledged that Ms. Ronald may have planned and deliberated before committing the murder, but stressed that she may have formed the intention to kill while involved in some kind of verbal altercation with Ms. Gill that caused Ms. Ronald to "go berserk". On this version of events, the murder was intentional, but not planned and deliberate. Ms. Ronald would properly be convicted of second but not first degree murder.
[17] Mr. Gill submits that, by failing to leave the possibility of a conviction for the included offence of second degree murder as it relates to Ms. Ronald, the trial judge took away a crucial part of Mr. Gill's argument that Ms. Ronald had acted alone. By removing the possibility that the murder by Ms. Ronald was intentional, but not planned and deliberate, the trial judge effectively neutered the best argument Mr. Gill had in support of the claim that Ms. Ronald acted alone. He submits that this court should conclude that his defence was not fully and fairly left with the jury and that the failure to leave the defence properly constitutes an error in law entitling him to a new trial.
[18] The Crown submits that the trial judge correctly refused to leave the possibility of a conviction for second degree murder in respect of Ms. Ronald. The Crown contends that, on the totality of the evidence, there was no "air of reality" to a finding that Ms. Ronald was not guilty of a planned and deliberate murder, but guilty of murder.
[19] The Crown further submits that, even if the trial judge erred in not leaving second degree murder as a possible verdict for Ms. Ronald, the error occasioned no substantial wrong or miscarriage of justice in respect of either appellant. The Crown maintains that the jury's conviction of Mr. Gill on first degree murder was untainted by any error in respect of the possible verdicts applicable to Ms. Ronald. The jury was told to consider the case against each appellant separately and the instructions, as applied to Mr. Gill, were faultless. The Crown submits that there is no reason to think that the failure to leave second degree murder as a possible verdict for Ms. Ronald somehow affected the verdict returned by the jury in respect of Mr. Gill.
[20] Insofar as Ms. Ronald is concerned, the Crown submits that the jury's verdict of first degree murder as against Mr. Gill demonstrates that the jury was satisfied, beyond a reasonable doubt, that Mr. Gill and Ms. Ronald planned and deliberated the murder together. The Crown contends that this factual finding against Mr. Gill, and by implication Ms. Ronald, is not tainted by the failure to leave second degree murder as a possible verdict for Ms. Ronald. This finding demonstrates that, even if second degree murder had been left with the jury, it would not have affected the result, as the jury clearly decided that Ms. Ronald planned and deliberated the murder with Mr. Gill, precluding any possibility of a conviction for second degree murder.
[21] I would allow the appeals of both appellants. There was a basis in the evidence upon which the jury could reasonably conclude that Ms. Ronald, acting alone, had murdered Ms. Gill, but have a doubt as to whether the murder was planned and deliberate. On that view, Ms. Ronald was guilty of second degree murder. The failure to leave that possible verdict with the jury is an error in law. I am also satisfied that, in the circumstances of this case, the failure to leave the included offence with the jury in respect of Ms. Ronald unfairly undermined the defence of Mr. Gill, resulting in a further error of law. The Crown has not satisfied me that the curative proviso can be applied in respect of either appellant. New trials on the charge of first degree murder are necessary for both.
III. The Evidence
(i) The Relationships
[22] The Gills married in 1997 in India. They had three children. Their eldest daughter, Dilpreet, was 15.
[23] Mr. Gill worked as a bus driver; Ms. Gill was employed at times but was unemployed in January 2014. Both had medical problems and, over time, they had stopped having sexual relations. Their marriage was not a happy one in many ways, although, according to one witness who was a friend of the family, the marriage seemed to be improving at the time of Ms. Gill's death.
[24] Ms. Ronald married her husband in 2001. Their marriage had also been a rocky one. On at least three occasions when they had fought, Ms. Ronald had threatened her husband with a knife. By early 2014, Mr. Ronald had decided to leave Ms. Ronald for good. She continued to profess her love for him and was angry about his planned move.
[25] Ms. Ronald worked for the same bus company as Mr. Gill. She was also a hairdresser. Ms. Gill was one of her clients. Their families were friendly and visited with each other from time-to-time over the years. In addition to her two jobs, Ms. Ronald invested in real estate, buying properties, fixing them up, and selling them.
[26] Mr. Gill met Ms. Ronald at their shared workplace in 2007. They became close friends and eventually sexual partners. According to both, the sexual component of their relationship waned and had stopped by the fall of 2013. They remained friends. According to Ms. Ronald, she remained emotionally very close to Mr. Gill.
[27] The Crown called evidence from one witness who testified to a conversation she had with Ms. Ronald and Mr. Gill in April 2012. Ms. Ronald indicated that she and Mr. Gill would do anything to stay together. Mr. Gill was nodding, and he further indicated that divorce was not an option for him.
[28] In addition to her relationship with Mr. Gill and her ongoing relationship with her husband, Ms. Ronald was also having a sexual relationship with a man named Singh in late 2013 and early 2014. He was married and apparently not inclined to leave his family.
[29] Ms. Gill was aware of the relationship between her husband and Ms. Ronald.
(ii) The Events of January 29, 2014
[30] Ms. Gill had surgery on January 28, 2014 and was home convalescing. The 29th was her wedding anniversary. By 10:00 a.m., her children, with the exception of Dilpreet, had gone to school. A short time later, Mr. Gill and Dilpreet left the home to run errands.
[31] Ms. Ronald, who lived near the Gills, saw Mr. Gill drive by with his daughter. She immediately called Mr. Gill and they spoke. They spoke several times that day.
[32] Mr. Gill was in a store with his daughter and his nephew, who had been picked up from school, at about 12:36 p.m. when he received a call from Ms. Ronald. He did not answer. She called two more times within the next 15 minutes. A short time later, Ms. Ronald arrived at the store. Mr. Gill and Ms. Ronald had a very brief conversation. According to him, Ms. Ronald was asking him to go to a furniture store. According to Ms. Ronald, she mentioned the furniture store, but also told Mr. Gill that something very bad had happened at his home. Ms. Gill was dead by this time.
[33] Mr. Gill drove home with his daughter and nephew, arriving shortly before 1:00 p.m. Dilpreet went in the house first. She saw her mother lying on the floor in the family room. At first, she did not know what had happened, but then she saw a great deal of blood. She screamed. Mr. Gill came running and saw his wife lying on the floor. He was very upset and did not know what to do. Dilpreet tried to call 911 on the landline but the phone was dead. Mr. Gill called 911 on his cell phone. The 911 operator described Mr. Gill as frantic.
[34] Mr. Gill testified that he saw two small knives by the body. Without thinking, he picked them up, threw them in the kitchen sink, and washed his hands in the sink. The police found the knives in the sink. Forensic testing revealed Ms. Gill's DNA on both and visible blood on one.
[35] Mr. Gill also testified that he was concerned that there might be an intruder in the house. He picked up the bloody weight bar that was lying beside his wife's head to use as a weapon, if necessary. Armed with the weight bar, he went looking for the intruder in the house. According to him, at some point he realized that the bloody weight bar, which was in all likelihood one of the murder weapons, was his personal weight bar. He feared that this might look suspicious, so he hid the weight bar in a Christmas tree box in the basement. The police discovered and seized the weight bar and replaced it with a replica. The tree box was placed under video surveillance under the authority of a warrant. A few days later, Mr. Gill removed the replica from the tree box, eventually attempting to get rid of it. Unfortunately for him, the police were watching.
[36] On Ms. Ronald's version of the events on January 29th, she saw Mr. Gill drive by at about 11:00 a.m., went to visit her father, and then went to the Gill home some time shortly after 12:30 p.m. Ms. Ronald indicated that the door was open so she went into the house. She walked into the family room and saw the body of Ms. Gill. Ms. Ronald stepped on a knife and then picked it up. She was stunned. Realizing she had touched what was probably the murder weapon, she retrieved some Nitrile gloves from a box on a nearby table in an effort to wipe the blood off the knife. She cut herself. She went to various parts of the house on the main floor and upstairs, looking for a Band-Aid, dripping her blood as she went. She then left the home, taking the knife, the gloves, and the box with her. She did not call 911, but she did call Mr. Gill at 12:36 p.m. and again at 12:38 p.m. Ms. Ronald testified that she feared she would be blamed for the murder, so she threw the knife and the gloves away into a snowbank in a nearby park. She was unable to say what happened to the box.
[37] Ms. Ronald returned to the Gill home at around 2:00 p.m., offering to look after the children. Mr. Gill declined her offer. A police officer at the scene noted that when Ms. Ronald's name was mentioned to Mr. Gill, he appeared to become angry and yelled that he should not have left his wife alone.
(iii) The Forensic Evidence
[38] The autopsy revealed that Ms. Gill had been struck some 30 times with the weight bar. There were over 20 cuts to her body, including a very significant deep wound across her neck. That wound was likely inflicted with a large knife while Ms. Gill was kneeling or lying face down. Ms. Gill put up a fight. There were several defensive wounds. All of the wounds were pre-mortem and Ms. Gill died quickly after her throat was slashed.
[39] There was a great deal of forensic evidence linking both appellants to the murder. The evidence included the following:
The weight bar had Ms. Gill's blood on it;
The large kitchen knife that was found in the park after the snow melted had Ms. Gill's blood on it;
Two gloves were found in the same park, one was missing a finger. DNA from Ms. Gill and Ms. Ronald was found on the intact glove. Ms. Gill's blood was found on the glove that was missing a finger;
Part of the missing glove finger was found beside Ms. Gill's body. Ms. Ronald's DNA was on that finger fragment;
Two of the knives found in the kitchen sink had Ms. Gill's DNA on them. One had visible blood on it;
Ms. Gill's blood was found not only in the den where her body was located, but on the outside of a kitchen drawer and on the doorframe to the master bedroom on the second floor; and
Drops of Ms. Ronald's blood were found very near Ms. Gill's body. Her blood was also found at the base of the kitchen sink, and in various locations on the second floor of the home. There was evidence of an attempt to wipe the blood away in some locations.
(iv) The After-the-Fact Conduct
[40] Both Mr. Gill and Ms. Ronald acknowledged lying to the police and attempting to hide and destroy important physical evidence. Most of that evidence is summarized above. Both claimed they acted as they did because they were afraid they would be falsely accused of murdering Ms. Gill.
IV. The Failure to Leave Second Degree Murder as a Possible Verdict for Ms. Ronald
(i) When Should a Jury Be Instructed on an Included Offence?
[41] In many first degree murder trials, it will be necessary to instruct the jury on the included offences of second degree murder and manslaughter: see R. v. Romano, 2017 ONCA 837, 41 C.R. (7th) 305, at paras. 13-14. In some circumstances, however, an "all or nothing" charge leaving only verdicts of guilty on the main charge and not guilty will be appropriate: e.g. see R. v. Buxbaum (1989), 70 C.R. (3d) 20 (Ont. C.A.), leave to appeal refused, [1989] S.C.C.A. No. 239; R. v. Chenier (2006), 205 C.C.C. (3d) 333, at p. 367 (Ont. C.A.). The case against Mr. Gill provides an example. Everyone agrees that the jury should not have been instructed in respect of any included offences when considering the case against Mr. Gill.
[42] There should be no instruction on potential liability for an included offence only when, on a consideration of the totality of the evidence and having due regard to the position of the parties and the proper application of the burden of proof, there is no realistic possibility of an acquittal on the main charge and a conviction on an included offence: see R. v. Aalders, [1993] 2 S.C.R. 482, at pp. 504-505; R. v. Grewal, 2019 ONCA 630, at para. 36; R. v. Chalmers, 2009 ONCA 268, at paras. 51-58; R. v. Wong (2006), 209 C.C.C. (3d) 520, at para. 12 (Ont. C.A.); R. v. Wade, 18 O.R. (3d) 33, at pp. 49-50, rev'd on other grounds, , [1995] 2 S.C.R. 737; R. v. Sarrazin, 2010 ONCA 577, 259 C.C.C. (3d) 293, at para. 64, aff'd 2011 SCC 54, [2011] 3 S.C.R. 505.
[43] During argument, there was some discussion about the difference, if any, between the "air of reality" test applied when deciding whether to leave a positive defence such as provocation with the jury, and the test to be applied when deciding whether to leave the possibility of a verdict on an included offence with the jury. Both inquiries seek to focus the jury's attention on the live issues actually raised by the evidence. By doing so, the risks of unreasonable verdicts, juror confusion, or improper compromise by jurors, are reduced: see Wong; R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 56. The term "air of reality" is used by this court as the applicable standard for both inquiries: R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 175. I think, however, the approach to the evidence is somewhat different in the two inquiries.
[44] The air of reality inquiry, as directed to the availability of positive defences, requires a determination of whether the defence can point to something in the evidence capable of reasonably supporting the factual inferences that would at least leave the jury with a reasonable doubt about the existence of each of the essential factual elements of the defence: see R. v. Suarez-Noa, 2017 ONCA 627, 139 O.R. (3d) 508, at paras. 41-43, leave to appeal refused, [2018] S.C.C.A. No. 142; R. v. Cormier, 2017 NBCA 10, at para. 40; R. v. Curran, 2019 NBCA 27, at para. 13.
[45] For example, if the defence claims that provocation should be put to the jury, the defence must be able to point to something in the evidence that would reasonably allow the jury to draw the necessary inferences to at least raise a reasonable doubt as to whether the conduct of the victim amounted to provocation as defined in the Criminal Code, R.S.C. 1985, c. C-46.
[46] When the question is should an included offence be left with the jury, the issue is whether, on the totality of the evidence, the jury could reasonably be left in doubt with respect to an element of the main charge that distinguishes that charge from an included offence: see Wong, at paras. 11-12. In the context of this case, it is the presence of planning and deliberation which distinguishes first from second degree murder. Second degree murder must be left with the jury if there is a reasonable possibility that the jury could have a doubt as to whether the murder was planned and deliberate. When, as here, there is more than one accused, that question must be answered separately for each accused and the answers may be different.
[47] When the defence, or the Crown, argues that a jury should be instructed on the possibility of a conviction on the included offence of second degree murder, it is not essential that the party seeking the instruction point to evidence capable of supporting inferences that are inconsistent with planning and deliberation. Unlike positive defences, there is no evidentiary burden on the defence, or the Crown, to put the possibility of a conviction for the included offence of second degree murder "in play". It is sufficient if, on the totality of the evidence, a reasonable jury could be left unconvinced, beyond a reasonable doubt, that the murder was planned and deliberate. That potential uncertainty can provide the basis for a proper verdict of not guilty of first degree murder, but guilty on the included offence of second degree murder.
[48] The trial judge, when deciding if the included offence of second degree murder should be left with the jury, must look to the totality of the evidence to consider not only what inferences could reasonably be drawn, but also the possibility that a reasonable jury might not draw any inference from certain evidence, perhaps because the jury regards the underlying evidence as untrustworthy or equivocal. A jury's decision that it will not draw an inference or inferences from certain evidence can open the door to a doubt on the issue of planning and deliberation. The trial judge must consider whether that is a realistic possibility in deciding whether to leave the included offence of second degree murder with the jury.
(ii) The Trial Judge's Reasons
[49] The trial judge was initially inclined to leave second degree murder as a possible verdict for Ms. Ronald. After extensive submissions, she accepted the Crown's argument that there was no air of reality to a verdict of not guilty of first degree murder, but guilty of second degree murder. In her reasons, she said:
In this case, I find there is no air of reality to evidence that could permit leaving the included offence of second degree murder to the jury. If the jury has rejected Ms. Ronald's assertion that she had nothing to do with the death of Jagtar Gill and they have found beyond a reasonable doubt that she killed Jagtar Gill, it is accepted by defence that the evidence demonstrates an intention to kill. There is incontrovertible evidence indicating the following:
• The assailant unplugged the phone jack in the den rendering Jagtar Gill unable to call for assistance. Mr. Gill could not have done this and there is no evidence anyone else did this. There is no one else who would have done this other than the assailant; and
• The assailant either used the bar prepared by Mr. Gill or it was retrieved and prepared by the assailant. There is no evidence that this bar was ever left without its weights attached. To suggest it is possible someone else took off the weights for reasons not associated with the murder is to speculate.
This evidence, both separately and taken as a whole, leaves no air of reality to the proposition that the killing was both intentional and spontaneous.
[50] With respect to the trial judge, who ably conducted a difficult trial, her reasons reveal three errors. First, she wrongly equated any murder that was not "spontaneous" with a planned and deliberate murder. Not every act indicative of some preparation prior to the murder, or some degree of planning, points only to a finding that the murder was planned and deliberate, as that phrase is defined in the case law. A planned and deliberate murder must be the product of a scheme or plan that is "carefully thought out" and "considered" before it is implemented: see R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074, at p. 1084; R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 34.
[51] The unplugging of the phone line in the den, one of the two pieces of circumstantial evidence emphasized by the trial judge in her ruling, provides an example of the kind of evidence that suggests preparation, but not necessarily planning and deliberation. The jury would almost certainly conclude that the person who killed Ms. Gill unplugged the phone jack. That action, considered with the rest of the evidence, could support an inference that the murder was planned. However, a jury could also take the view that the unplugging of the phone, while indicative of some preparation, did not support the assertion that the murder was the product of a careful and considered scheme of the sort required to establish planning and deliberation. It was for the jury to decide what to make of the evidence that the phone line was unplugged.
[52] Second, the trial judge's treatment of the evidence concerning the weight bar demonstrates that the trial judge trespassed on the jury's fact-finding function. She concluded that the evidence allowed for only two possible inferences if Ms. Ronald was the assailant: either Mr. Gill removed the weights from the weight bar in the basement and took the bar up to the family room so Ms. Ronald could use it as a weapon in her attack on Ms. Gill, or Ms. Ronald went to the basement, removed the weights and took the bar to the family room, where she used it to murder Ms. Gill. In the trial judge's view, either inference was consistent only with planning and deliberation.
[53] The trial judge's analysis ignores the reasonable possibility that the jury would not draw any inference from the evidence concerning the weight bar. The evidence about the location of the bar and the timing of the removal of the weights from the bar was not necessarily compelling. That evidence came almost exclusively from Mr. Gill. [2] He testified that the bar was normally in the basement with the weights attached. Clearly, the jury was not impressed with a great deal of Mr. Gill's evidence.
[54] The inferences about the weight bar referred to by the trial judge were certainly reasonable inferences. However, the trial judge's approach assumes that the jury would inevitably accept the evidence on which those inferences were based and draw either of the two inferences identified by the trial judge. The jury was not obliged to do so. It was reasonably open to a jury on this evidence to draw no inference about how the weight bar came to be in the family room on the morning of the homicide. Juries are not obliged to draw all inferences that are reasonably available on the evidence.
[55] The trial judge's treatment of the evidence about the weight bar suggests to me that the trial judge was looking to the defence to offer some reasonable explanation, inconsistent with planning and deliberation, to explain how the bar came to be upstairs with the weights removed. Absent that reasonable, innocent explanation, the trial judge appears to have been satisfied that the jury would be compelled to accept one of the reasonable inferences she identified, both of which were consistent with planning and deliberation.
[56] That line of reasoning comes close to putting an onus on the defence to explain away potentially incriminating evidence. It also fails to capture the approach that the jury must take when considering whether the Crown has met its burden. The jury is not obliged to draw any inference or make any positive finding about how the weight bar came to be in the family room. If the jury chose not to draw the inferences urged by the Crown, the presence of the weight bar in the family room offered no support for the Crown's theory that the murder was planned and deliberate. The trial judge excluded this possibility.
[57] Third, the trial judge's analysis focuses almost exclusively on the two pieces of circumstantial evidence identified in the reasons. The trial judge does not take into account the totality of the evidence. In fact, when putting Mr. Gill's defence to the jury, the trial judge put to the jury, as a viable version of the events, the possibility that Ms. Ronald had gone to the Gill home, not planning to kill her, but had decided to do so at some point after she arrived. On that scenario, a verdict against Ms. Ronald of not guilty of first degree murder, but guilty of second degree murder was realistically available.
[58] Counsel for Ms. Ronald has effectively outlined evidence that could support a finding that Ms. Ronald murdered Ms. Gill, but did not plan and deliberate on the murder. That evidence includes:
The relationship between Mr. Gill and Ms. Ronald was over as far as Mr. Gill was concerned. He was making efforts to distance himself from Ms. Ronald and save his marriage. On that evidence, jealousy or anger may have motivated Ms. Ronald;
Ms. Ronald's propensity to act very violently and use knives when she became angry with persons close to her;
The nature of the attack on Ms. Gill suggested that the killer acted in a frenzied rage;
Mr. Gill anticipated that his sister would be visiting Ms. Gill at the Gill home at about the time Ms. Ronald committed the homicide, suggesting he did not know Ms. Ronald was going to kill Ms. Gill; and
Mr. Gill's emotional reaction upon finding his wife's body, which could be seen as inconsistent with him being a party to a plan to kill Ms. Gill with Ms. Ronald.
[59] I do not suggest that the evidence outlined above excluded the possibility that Ms. Ronald killed Ms. Gill pursuant to a plan she had formed with Mr. Gill. Far from it. That inference was undoubtedly strong and available on the evidence. However, when deciding whether second degree murder should be left with the jury, the trial judge does not ask if the evidence points more strongly to second degree murder than to planning and deliberation, but instead asks whether a reasonable jury, properly instructed, could have a doubt as to whether Ms. Ronald had planned and deliberated the murder. The evidence reasonably allowed for that possibility.
[60] Crown counsel, in their factum (at paras. 52-53), argue that the trial judge was required, in deciding whether the included offence of second degree murder should be left with the jury for Ms. Ronald, to proceed on the basis that "the jury accepted that both Gill and Ronald had unlawfully killed Jagtar Gill".
[61] I accept that the trial judge, in deciding whether the jury should be instructed on the included offence of second degree murder, must assume that the jury would find that Ms. Ronald killed Ms. Gill. The trial judge was then required to go on and determine whether a jury, having concluded that Ms. Ronald killed Ms. Gill, could realistically, on the totality of the evidence, have a reasonable doubt about whether the killing was planned and deliberate, the factual issue which distinguishes first from second degree murder.
[62] I do not agree, however, that the trial judge was required to make any assumption about Mr. Gill's involvement in the killing. In my view, an assumption that Mr. Gill "unlawfully killed Jagtar Gill" could play no role in determining whether a possible verdict on the included offence of second degree murder should be left with the jury in respect of Ms. Ronald.
[63] It was Mr. Gill's defence that Ms. Ronald acted entirely on her own. I see no basis, in law or logic, for assuming that Mr. Gill's defence would fail entirely when deciding whether to leave the included offence of second degree murder as against Ms. Ronald. The Crown's argument, that the trial judge should have assumed both appellants were involved in the killing in addressing Ms. Ronald's potential liability for second degree murder, is really an argument that there was no air of reality to Mr. Gill's defence that Ms. Ronald acted alone. The Crown had a strong case, but it was not that strong.
[64] For the reasons outlined above, the trial judge erred in law in failing to leave with the jury the possibility of finding Ms. Ronald not guilty of first degree murder, but guilty of second degree murder. That error in law entitles Ms. Ronald to a new trial, unless the Crown can demonstrate that the error caused no substantial wrong or miscarriage of justice.
V. Can the Curative Proviso Be Applied in Respect of Ms. Ronald?
(i) When Can the Proviso Be Applied?
[65] Section 686(1)(b)(iii) of the Criminal Code provides that this court may dismiss an appeal despite an error in law if satisfied that the error caused no substantial wrong or miscarriage of justice. The burden is on the Crown to show either that the legal error was so minor as to be "harmless", or the evidence was so overwhelming as to satisfy the court that the verdict would necessarily have been the same had the error not been committed: see R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 26-31; Sarrazin (ONCA), at para. 65.
[66] The erroneous failure to leave a possible verdict on an included offence can seldom be held to have caused no substantial wrong or miscarriage of justice: R. v. Haughton, [1994] 3 S.C.R. 516, aff'g (1992), , 11 O.R. (3d) 621 (C.A.). That error is usually beyond the reach of the curative proviso for two reasons. First, it cannot be said, in the face of a determination that the included offence should have been left with the jury – which involves a determination that there was a realistic possibility of an acquittal on the full offence – that the evidence supporting the conviction on the full offence was "overwhelming". The two conclusions are incompatible.
[67] Second, the error can seldom be said to be harmless. The failure to leave the full menu of legally available verdicts will often have a potential impact on the verdict selected by the jury. This case provides an excellent example. The evidence pointed strongly to Ms. Ronald as the killer. There is a real likelihood that a jury, left only with the choice of convicting Ms. Ronald of first degree murder or declaring her not guilty, would opt for the verdict that recognized Ms. Ronald's responsibility for Ms. Gill's death. It cannot be said that, had the jury been left with a third possible verdict that would also have held Ms. Ronald accountable for murder, the jury would necessarily have still convicted of first degree murder: Haughton, at pp. 516-517; Sarrazin (SCC), at para. 31.
[68] There is, however, at least one situation in which the court has applied the curative proviso to the erroneous failure to leave a possible verdict on an included offence. In considering the applicability of the proviso, the court can take into account findings of fact implicit in the verdict or verdicts returned by the jury as long as those verdicts are not tainted by the legal error, and those findings are unambiguously revealed by the verdict: Haughton; R. v. Elkins (1995), 26 O.R. (3d) 161, at pp. 170-172, leave to appeal refused, [1996] S.C.C.A. No. 62; R. v. Mulligan (2006), 80 O.R. (3d) 537, at para. 60 (C.A.); Sarrazin (ONCA), at paras. 70-72; Sarrazin (SCC), at paras. 30-31; R. v. Pilon, 2009 ONCA 248, 243 C.C.C. (3d) 109, at paras. 76-80; R. v. Humaid (2006), 81 O.R. (3d) 456, at paras. 88-90 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 232.
[69] Cases in which an accused is convicted of first degree murder and the trial judge has instructed the jury on the included offence of second degree murder but has erroneously failed to instruct on the possibility of manslaughter based on provocation provide an example of a situation in which the curative proviso has been applied. In those cases, a court may find that there was a basis for a finding of manslaughter based on provocation and that the jury should have been instructed accordingly. The court may go on to apply the curative proviso on the basis that the finding of planning and deliberation, as reflected in the conviction on the first degree murder, was unaffected by the non-direction with respect to provocation and effectively precluded the possibility of a successful provocation defence. In short, the jury's verdict indicated a factual finding that the murder was planned and deliberate, the antithesis of a provoked murder: see e.g. Humaid, at paras. 87-90.
[70] The Crown submits that the jury was properly instructed in respect of Mr. Gill's potential liability for first degree murder. They were also told on at least three occasions that they must consider the verdicts with respect to Ms. Ronald and Mr. Gill separately. The Crown contends that Mr. Gill's conviction for first degree murder demonstrates that the jury found, beyond a reasonable doubt, that Mr. Gill was a party to a plan to kill Ms. Gill and that she was killed in furtherance of that plan. The Crown further argues that, on the evidence, the only person Mr. Gill could have planned the murder with was Ms. Ronald. Consequently, urges the Crown, the first degree murder verdict against Mr. Gill unambiguously demonstrates that the jury was satisfied, beyond a reasonable doubt, that the murder was committed pursuant to a plan to which Mr. Gill and Ms. Ronald were parties.
[71] The Crown further contends that the finding of fact on which Mr. Gill's conviction rests, that is that he and Ms. Ronald planned and deliberated the murder, is untainted by any error in relation to the failure to charge the jury on second degree murder as it related to Ms. Ronald. The Crown submits that the findings of fact implicit in the first degree murder verdict against Mr. Gill can leave no doubt that the jury was satisfied that Ms. Ronald was also guilty of a planned and deliberate murder. As the jury would inevitably have convicted Ms. Ronald of first degree murder, even if the possibility of a conviction on second degree murder had been left with the jury, the failure to leave that possible verdict was harmless and caused no substantial wrong or miscarriage of justice.
(ii) Was the Verdict Against Mr. Gill "Tainted" by Legal Error?
[72] To succeed on this argument, the Crown must demonstrate that Mr. Gill's conviction on the charge of first degree murder was not tainted by the failure to leave the possibility of a conviction on second degree murder with the jury in respect of Ms. Ronald. The Crown cannot meet that burden.
[73] By not leaving second degree murder with the jury, the trial judge effectively removed from the jury's consideration the possibility that Ms. Ronald formed the intention to kill at some point shortly before she killed Ms. Gill, but without planning and deliberation. It was central to Mr. Gill's defence that Ms. Ronald acted alone. He offered two scenarios, one in which she planned and deliberated the murder on her own, and another in which she murdered Ms. Gill, but without planning and deliberation. I think it is fair to say that counsel for Mr. Gill stressed the latter over the former, no doubt because the suggestion that Ms. Ronald planned and deliberated on her own was a difficult proposition on this evidence. By not leaving second degree murder with the jury and explaining to the jury how they could arrive at a verdict of second degree murder with respect to Ms. Ronald, the trial judge effectively removed one of the two bases upon which Mr. Gill had asked the jury to conclude that Ms. Ronald acted alone.
[74] Mr. Gill's defence was further undermined by the trial judge's instruction to the jury that, if they were satisfied beyond a reasonable doubt that Ms. Ronald killed Ms. Gill, the jury "should have no difficulty in determining that the killing was planned and deliberate". This instruction, combined with the absence of any instruction on second degree murder, effectively invited the jury to go straight from the strongly likely finding that Ms. Ronald killed Ms. Gill, to a finding that the murder was planned and deliberate. That finding all but excluded any possibility that the jury would have a doubt as to whether Ms. Ronald acted on her own and without planning and deliberation.
[75] Accordingly, the proviso cannot be applied to affirm Ms. Ronald's conviction. She is entitled to a new trial.
VI. Is Mr. Gill Entitled to a New Trial?
[76] Not only did the trial judge's instructions "taint" the first degree murder verdict against Mr. Gill, for the purposes of deciding whether the proviso can be applied to affirm Ms. Ronald's conviction, the instruction also compels the conclusion that Mr. Gill's defence was not adequately and fairly put to the jury. The trial judge's failure to fairly and fully put Mr. Gill's defence to the jury constitutes an error in law: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 54-58.
[77] Although Mr. Gill's defence that Ms. Ronald acted alone ran against the weight of the evidence, I cannot say that the evidence was so overwhelming that the verdict against him would necessarily have been the same had part of that defence not been eliminated by the trial judge's instructions. The proviso cannot be applied to overcome the failure to adequately put Mr. Gill's defence to the jury.
[78] For the reasons outlined above, I am satisfied that both appellants have established errors in law that directly affected the verdicts returned against them. I am also satisfied that the Crown cannot demonstrate that the errors caused no substantial wrong or miscarriage of justice.
[79] However, even if I am wrong in concluding that the failure to adequately put Mr. Gill's defence to the jury constituted an error in law, I think he is still entitled to a new trial, assuming I am correct in holding that Ms. Ronald is entitled to a new trial. The order requiring a new trial for Ms. Ronald carries with it, in the circumstances of this case, the requirement that Mr. Gill also receive a new trial. If only Ms. Ronald was retried, there is a risk that Ms. Ronald, who the Crown alleged was the actual killer, could end up convicted of second degree murder, while Mr. Gill, the alleged co-conspirator but not the perpetrator, would remain convicted of first degree murder.
[80] A very similar situation arose in Nygaard and Schimmens. Both were charged with first degree murder. The Crown maintained that Schimmens had beat the victim to death with a baseball bat and that Nygaard was present and had aided and abetted Schimmens. At trial, Schimmens testified and advanced an alibi defence. Nygaard did not testify. Both men were convicted.
[81] On appeal, the Supreme Court of Canada held that Schimmens had been subject to improper cross-examination on certain wiretap interceptions. The cross-examination potentially undermined his alibi. The court held that Schimmens was entitled to a new trial. The court was satisfied that the improper cross-examination did not affect Nygaard and that there was no error in respect of the proceedings as against Nygaard.
[82] Cory J., for eight of nine members of the court on this point, held that there should be a new trial for both Nygaard and Schimmens. He said, at p. 1094:
If Nygaard did not also have a new trial, the incongruous and unacceptable result might be that Schimmens, the prime mover in the crime, was found guilty of second degree murder while Nygaard, the party to the crime, was found guilty of murder in the first degree.
[83] The words of Cory J. have direct application to this case. If only Ms. Ronald were to receive a new trial, she, as the "prime mover" in the murder, could be found guilty of second degree murder, while Mr. Gill, whose liability lay as an aider or abetter, would remain guilty of first degree murder. Those verdicts would represent an "incongruous and unacceptable result".
VII. Conclusion
[84] I would allow the appeals, quash the convictions, and order a new trial on the charge of first degree murder.
Released: December 11, 2019
"Doherty J.A."
"I agree Alexandra Hoy A.C.J.O."
"I agree B. Zarnett J.A."
Footnotes
[1] No one argues that manslaughter was a possible verdict on the facts of this case.
[2] The only other witness who gave evidence about the weight bar was Dilpreet, who said that the bar was "usually" in the basement but could not say where it was on January 29th.