COURT OF APPEAL FOR ONTARIO DATE: 20210706 DOCKET: C65806

Doherty, Trotter and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Patrick Carignan Appellant

Counsel: Jeff Marshman, for the appellant Michael S. Dunn, for the respondent

Heard: June 1, 2021 by video conference

On appeal from the conviction entered on November 21, 2017 by Justice Cindy A.M. MacDonald of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

Introduction

1The appellant was convicted of second degree murder for killing Emanuelle D’Amours. He was sentenced to life imprisonment with no parole eligibility for 16 years.

2The appellant appeals his conviction on two grounds. First, he submits that the trial judge erred in finding that his statements were voluntary. Second, the appellant contends that the trial judge erred in permitting the jury to find that the statements were fabricated and to use them as evidence of guilt.

3At the conclusion of the appellant’s submissions, we dismissed the appeal. The following reasons explain why we reject both grounds of appeal.

Factual Background

4Ms. D’Amours was found dead in the appellant’s house at about 8:35 a.m. on February 18, 2015. She had been strangled with a ligature. The appellant was found, apparently unconscious, with a ligature around his neck. Police officers thought that he too was dead. However, when he gasped for air, his ligature was removed with a knife and he started to breathe on his own.

5The appellant and Ms. D’Amours were romantically involved, although she had a partner. The appellant helped her out financially.

6From the beginning of the investigation, the appellant told the police that he and Ms. D’Amours were attacked by an intruder. However, the police came to believe that the appellant had killed Ms. D’Amours and then staged the scene to support the intruder scenario. This was borne out by the timeline of events, the appellant’s communications on social media, the use of his cell phone, and forensic evidence.

The timeline

7Ms. D’Amours left her house at about 7:45 p.m. on February 17, 2017, leaving her children with a babysitter. She was expected home by 11 p.m. When she did not return by 12:15 a.m., the babysitter called 911 to report her missing.

8The police searched for Ms. D’Amours’ truck. They found it in the appellant’s driveway at 3:30 a.m. There was a purse and iPhone inside the truck. The engine was off. However, ice pellets under the exhaust pipe suggested that it had been left running for more than 30 minutes. The appellant’s next-door neighbours reported seeing the parked truck with its lights on and engine running at 9:00 p.m., 9:30 p.m., 12:00 a.m., and 2:30 a.m. The keys to the truck were subsequently found inside the appellant’s residence, which was locked when the police arrived.

9The police knocked loudly on the appellant’s door at 3:30 a.m., 3:45 a.m., 5:15 a.m., and 5:30 a.m. They received no response. They called the appellant’s phone at 4:19 a.m. The phone rang and then closed off. The police tried again; this time it would appear that the appellant’s phone was dead. The police knocked again and then breached the door at 8:35 a.m.

10When the police were at the appellant’s residence from 3:30 a.m. onwards, nobody entered or left the house.

Forensic evidence

11The ligature found around the Ms. D’Amour’s neck was a pillowcase. She had hand injuries that were consistent with attempting to relieve the pressure from her neck. The appellant had scratches on his neck and lower face. DNA evidence established that the appellant could not be excluded as the source of blood under Ms. D’Amours’ fingernails, on the ligature, and on her jeans.

Electronic communications

12The appellant sent Facebook messages to a friend at 12:02, 12:09 a.m., 12:21 a.m., 12:52 a.m., and 6:14 a.m. The last message was sent well after the police had been on the scene and knocking loudly on his door. In his messages, the appellant said that someone came into his house, tied him up, put something in his mouth, and stole money from him.

13Forensic analysis determined that Ms. D’Amour’s phone connected to the WiFi in the appellant’s house at 9:18 p.m. This was after the appellant’s neighbour first noticed Ms. D’Amours’ truck parked, but still running, in the driveway.

14Examination of the appellant’s phone was even more revealing. Forensic analysis proved that the Facebook messages were sent from his phone. It also showed that someone physically declined the call made to his phone by the police at 4:19 a.m. Evidence also showed that someone was using his phone to send, draft, or look at messages between 6:14 a.m. to 6:27 a.m. The appellant’s phone was plugged in between 6:14 am. and 7:59 a.m., but it was not within arm’s length of where the police found him with a ligature around his neck.

15All of this evidence pointed to the appellant placing the ligature around his own neck well after reporting the intruder scenario to his friend, and while the police were outside his residence. In his closing address to the jury, defence counsel acknowledged that the evidence was consistent with the appellant placing the ligature on himself, but that it could be evidence that the appellant panicked and tried to reconstruct the situation.

The appellant’s statements

At the house

16After the appellant was revived, he told an officer, “They tied my, they, they tied my hands up and I couldn’t breathe and I got loose.” He told this same officer that he had been seeing Ms. D’Amours for a while and she was supposed to move in with him. He also said that he and Ms. D’Amours had been followed and that someone had sent photos of them to Ms. D’Amours partner. At this point, the appellant was cautioned and all further interactions with him were recorded.

17As discussed below, there was a good deal of evidence about the appellant feeling cold while he was at the house. He was asked to put his shoes on but he refused to do so without first having socks. He was told he could not have socks because the house was now a crime scene. When he was assessed by paramedics in the ambulance, the appellant spontaneously said, “We were supposed to die together”. He refused to go to the hospital.

In the police car and at the police station

18On the way to the station, the appellant spoke spontaneously, but did not say much. He said, “her [sic] wants to run away with me” and “I didn’t touch her”.

19At the police station, when identification officers went into the interview room to take photographs and obtain DNA, they asked the appellant whether he had any questions. He said, “alright when I did uh tried to … like the thing was hard around her neck so I tried to take it off”. When he was asked why his eye looked sore, “I got punched in the eye”. The appellant also said something about Valentine’s Day and that he had sex with “her” and her “ex-boyfriend’s … pretty jealous.” He told the officers that he and Ms. D’Amours were being followed and that proof of that was on his cell phone.

20The appellant was interviewed for about 3 hours and 45 minutes by Detective Sergeant Darryl Sigouin. He told the officer that Ms. D’Amours came to his house earlier in the night. She had a key to his house, but he believed he may have left the door unlocked for her. When she arrived, they hugged and kissed for 10 to 15 minutes. Ten minutes later, someone was knocking on his door. When the appellant answered the door, he was punched in the face by a man he did not recognize. He was pushed down the stairs and his head went through the drywall. The intruder tied him up and put a sock in his mouth when he resisted. Both his hands and Ms. D’Amours’ were restrained with zip ties. The intruder said something about “cheating” and took an envelope containing $12,000.

21The appellant said that Ms. D’Amours was able to loosen his ligature enough so that he could talk a bit. He lost consciousness two times and was choking on his vomit for two hours. At least four hours later, the appellant went upstairs to get a knife and came back downstairs to cut his zip ties. He checked on Ms. D’Amours but he did not try to help her because she was already dead.

22The appellant repeatedly denied killing Ms. D’Amours. He provided the same narrative and denial to other officers a few weeks later, on March 11, 2015.

Analysis

Voluntariness

23The appellant contested the admissibility of all of his statements on the basis they were involuntary. His approach was multi-faceted. However, he focused mostly on the presence of oppressive circumstances, including the following: the failure to provide him with socks (even though blankets were provided); the delay in obtaining water; not allowing him to use the washroom when he asked; and not accounting for his apparent fatigue (evidenced by the fact that he repeatedly fell asleep in the hours leading up to the formal interview). The appellant also contended that the interrogation itself was oppressive.

24On appeal, the appellant submits that the trial judge failed to conduct a contextual inquiry; instead, she dealt with the evidence in a piecemeal fashion. He further contends that the trial judge misapprehended the evidence and failed to consider relevant evidence, resulting in an unreasonable decision that the statements were voluntary. We disagree.

25This court recently said in R. v. Al-Enzi, 2021 ONCA 81, at para. 80: “Where a trial judge applies the correct test and considers all relevant circumstances, deference is owed to the trial judge’s ultimate determination on voluntariness”. See also R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 71; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 17; and R. v. Pearson, 2017 ONCA 389, 348 C.C.C. (3d) 277, at para. 14, leave to appeal refused, [2017] S.C.C.A. No. 465.

26The trial judge identified the correct legal principles for determining voluntariness. Relying on Oickle, she recognized that determining whether a statement or utterance is voluntary goes beyond merely running through a checklist of items. The question is whether the Crown has proven beyond a reasonable doubt that the will of the accused person is not overborne by the police: Spencer, at paras. 13-15.

27The trial judge considered the evidence under the headings identified in Oickle – threats and promises, oppressive circumstances, an operating mind, and police trickery. This is how counsel structured their submissions on the voir dire.

28The trial judge was especially focused on whether oppressive circumstances had any bearing on the will of the appellant. This was responsive to the evidentiary foundation on the voir dire, and the submissions of counsel. She concluded this portion of her analysis by saying, at para. 80:

To conclude on the issue of oppression, Mr. Carignan was denied socks but he was offered blankets. He was not immediately given water or bathroom breaks upon request but did have reasonable opportunities to use the washroom. He was given water and Gatorade at reasonable intervals. The tone of the interrogation was not overly aggressive. In fact, for the most part, it was quite pleasant. The tone became more accusatory and confrontational at times, but never intimidating or aggressive. … On the second occasion, Mr. Carignan was in the interview room from 20:02 to 23:42. During that time he continued to be offered food and drink and was kept reasonably comfortable in the circumstances.

29The evidence supported these findings. We reject the appellant’s submission that they were unreasonable. Having applied the correct test, they are entitled to deference.

30Having addressed the Oickle factors on the record before her, the trial judge emphasized, more than once, that she considered the overall circumstances in coming to the conclusion that the appellant’s statements were voluntary. As she said in the concluding passages of her ruling, at paras. 89 and 98-99):

Considering the overall circumstances, the question is whether the Crown has proven that the statement was given voluntarily. This must be considered contextually and keeping in mind the Court’s twin goals of protecting the rights of the accused without unduly limiting society’s need to solve crimes.

Considering all of the circumstances, I am convinced that the statement was voluntary. I am convinced beyond a reasonable doubt that the overall circumstances, in combination, were not sufficiently objectionable to affect voluntariness. The circumstances may have been unpleasant, however the will of the accused was not overborne by such conditions.

I find, beyond a reasonable doubt that the statements made during the interviews and interactions considered on this voir-dire were given voluntarily by Mr. Carignan. [Emphasis added.]

31The appellant submits that, although the trial judge said she considered all of the circumstances, her analysis suggests otherwise. We disagree. The trial judge focused on the areas that counsel emphasized, but within the context of the broader framework established in the case law.

32We dismiss this ground of appeal.

Fabrication

33The appellant submits that the trial judge erred by instructing the jury that it could infer that his statements were not just false, but fabricated, and could be used as circumstantial evidence of guilt. He submits that the manner in which this issue arose was procedurally unfair because the trial judge did not make a fabrication ruling on the voluntariness voir dire. He also submits that there was no independent evidence of fabrication, only falsity. We reject these arguments.

34This court held in R. v. O’Connor (2002), 170 C.C.C. (3d) 365 (Ont. C.A.), at para. 30, that when the Crown seeks to introduce evidence to show that an accused has fabricated out-of-court statements, the trial judge should determine whether there is sufficient independent evidence of falsity at the admissibility stage: see also R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, at para. 164, leave to appeal refused, [2010] S.C.C.A. No. 499; R. v. Clause, 2016 ONCA 859, 133 O.R. (3d) 321, at para. 56. However, the failure to do so is not necessarily fatal.

35In O’Connor, on a voir dire into voluntariness and whether there had been a breach of s. 10(b) of the Charter, defence counsel did not object to the proposed use of the statements to demonstrate fabrication and there was no formal ruling: at para. 29. The appeal was allowed on another basis. Similarly, in Clause, Brown J.A. observed that the trial judge did not make such a ruling because he was not asked to do so; nonetheless, the court dismissed the appeal because there was ample evidence of fabrication on the record: at paras. 55-58. The same reasoning was employed in R. v. Pomeroy, 2008 ONCA 521, 91 O.R. (3d) 261, in which Weiler J.A. said, at para. 69: “However, because I am of the opinion that such evidence did exist, the omission of the Crown to seek such a determination is of no import.”

36The purpose of making a ruling at the admissibility stage is to ensure that the accused person is aware of the case to meet, and to prevent the jury from being exposed to statements that have no evidentiary value. In this case, although the trial judge did not rule on the issue of fabrication, she was not asked to. The appellant now submits that, had he been put on notice that his statements could be used as evidence of fabrication, he would have approached the case differently. He submits that he was denied the opportunity to make full answer and defence “by, for example, conducting examinations, calling evidence, making submissions as to why a fabrication instruction should not be given, or making submissions aimed at rebutting the inference that his statement was fabricated.” However, when pressed on this submission during the oral hearing, counsel gave no concrete examples to support this claim.

37The manner in which the trial unfolded on this issue reflected no unfairness. The appellant submits that he anticipated that his statements were admitted to be used only for the purposes of cross-examination in the event that he testified. However, this is not borne out by the record. Had this been the case, the statements would likely have been marked as lettered exhibits and would only have become known to the jury if and when the appellant testified. Instead, the appellant’s statements were introduced before the jury as part of the Crown’s case, with no objection from defence counsel.

38That a broader use of the statements was contemplated is reflected in the pre-charge proceedings. The trial judge’s draft instructions included an instruction on fabrication. When asked about this instruction (discussed below), defence counsel expressed no surprise, nor did he assert unfairness. Instead, he merely made reference to the submissions he had made about the trial judge’s more general instruction on after-the-fact conduct, in terms of word changes and a “no probative value” instruction on the issue of intent.

39Accordingly, there was no procedural unfairness in the manner in which this issue developed at trial. As in Pomeroy, the failure to obtain a ruling was “of no import”.

40Moreover, there was ample evidence of fabrication. The appellant submits that the evidence that the trial judge referred to in this context provided no independent proof of fabrication. Her instruction referred to the following: (a) evidence of the officers that the appellant had a ligature around his neck and his face was dark, grey, or blue when they first entered the home; (b) the ligature was so tight it had to be cut with a knife to remove it; (c) as soon as the ligature was removed, the appellant’s colour returned to normal; (d) evidence that the appellant rejected a call to his phone after the alleged assault; and (e) his evidence that he walked upstairs in the middle of the night to get a knife to cut off his zip ties.

41The question of whether there is independent evidence of fabrication is a case and fact-specific inquiry. Examples of independent evidence of fabrication include the following: the timing of the statement; whether the statement was given when the accused was not a suspect; the scope of exculpation in the statement; the degree of detail provided; and post-arrest statements that are inherently implausible: see O’Connor, at paras. 24-31; R. v. Wright, 2017 ONCA 560, 354 C.C.C. (3d) 377, at para. 48.

42There was strong independent evidence of fabrication in this case. Recall the appellant’s Facebook messages to his friend, the first of which was sent roughly eight hours before the police arrived. Then there was evidence of the appellant’s use of his phone during the night. Evidence concerning Ms. D’Amours’ truck and when it was turned off and the subsequent location of her keys was also capable of contributing to a conclusion that the statements were fabricated. Finally, and most importantly, the observations of the officers on the scene – the appellant with a ligature tied so tightly around his neck that his face was blue, hours after the apparent intruder attack.

43If accepted by the jury, this body of evidence demonstrated “an intent to mislead the police or others or an intent to deflect suspicion”: O’Connor, at para. 26. Taken together, this was evidence the appellant staged the crime scene to look like someone else had killed Ms. D’Amours. It was cogent evidence of fabrication.

44In her closing address, the Crown reviewed the internal and external inconsistencies in the appellant’s lengthy statement to Detective Sergeant Sigouin. However, she concluded this part of her address by saying, “[T]he Crown does not ask you to convict the accused because of the inconsistencies in his statement. The Crown submits that the evidence of … guilt is overwhelming on its own.”

45There was nothing wrong with this submission. However, it necessitated that the jury be provided with guidance on the difference between simply disbelieving a statement and finding that it had been fabricated. Without it, the jury may have mistakenly equated disbelief with fabrication. The trial judge provided such an instruction, which included the following passage:

There is a big difference between disbelief of a version of events and fabrication of that same version of events. Disbelief of a version of events does not mean that the version of events was fabricated. Not at all. Evidence that leads you only to disbelieve a version of events is not independent evidence that the version of events was fabricated.

46There was no objection to the fabrication instruction, either before or after it was delivered. No issue is taken with the correctness of this instruction on appeal. It was correct (see Al-Enzi, at para. 41) and it was balanced.

47We dismiss this ground of appeal.

Disposition

48The appeal against conviction is dismissed.

Postscript

49Following the dismissal of his conviction appeal at the conclusion of the hearing on June 1, 2021, the appellant filed a Notice of Appeal for Inmate Appeal at the institution where he is incarcerated, dated June 22, 2021. The Notice lists several grounds of appeal against conviction, some of which were not advanced as part of his solicitor appeal. The appellant also claims that the sentence he received was “excessive”.

50The appeal against conviction has already been dismissed. Therefore, we decline to consider the further grounds of appeal now advanced by the appellant. As for the appeal against sentence, the appellant did seek leave to appeal his sentence in an Amended Notice of Appeal, filed on August 23, 2018. However, a Notice of Abandonment of the sentence appeal was filed on October 5, 2020. Consequently, the fitness of the appellant’s sentence was not properly before this court when his appeal was heard.