COURT OF APPEAL FOR ONTARIO

DATE: 20001211

DOCKET: C30826

WEILER, ROSENBERG and SHARPE JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN ) James A. Ramsay, for the respondent

Respondent )

–and– )

MARCEL LANGEVIN ) Melvyn Green and Paul Burstein, for

) the applicant (appellant)

Applicant (Appellant) )

) Heard: October 2, 2000

On appeal from the conviction imposed by Justice Douglas J.A. Rutherford, sitting with a jury, dated June 12, 1997.

BY THE COURT:

[1] Ian Taylor was stabbed to death sometime between noon and 3:00 p.m. on February 12,1995 while visiting in the Ottawa apartment of the appellant, Marcel Langevin, and the appellant’s wife, Annette St. Pierre. Annette St. Pierre’s lover, Robert Ryckman, was also present at the time of the stabbing. Ryckman was a cocaine user and his dealer was Ian Taylor. Ryckman owed Ian Taylor money.

[2] The appellant was convicted of the second degree murder of Ian Taylor before a judge and jury. Ryckman, who was initially charged with the second degree murder of Ian Taylor, was later charged with being an accessory after the fact to the murder of Taylor by the appellant. Following the appellant’s conviction, Ryckman was tried separately before a judge sitting without a jury on the accessory after the fact charge. He was acquitted on the basis that the trial judge was not persuaded that the appellant was responsible for Ian Taylor’s death. The appellant appeals from his conviction and seeks to introduce fresh evidence respecting the proceedings at Ryckman’s trial, pursuant to s.683(1) of the Criminal Code.

[3] In addition to the fresh evidence, the appellant appeals from his conviction on the basis that the trial judge committed a number of errors in his charge to the jury. The Crown fairly concedes that the trial judge committed the following errors:

• The trial judge failed to charge the jury on the use that could be made of the appellant’s after-the-fact conduct in accordance with the decisions in R. v. White (1998), 1998 789 (SCC), 125 C.C.C. (3d) 385 at 404 (S.C.C.); affg 1996 3013 (ON CA), 108 C.C.C. (3d) 1 (Ont. C.A.); R. v. Peavoy (1997), 117 C.C.C. (3d) 227 at 237-40 (Ont. C.A.).

• The trial judge failed to give the jury an appropriate Vetrovec warning as to the dangers of accepting the evidence of Annette St. Pierre or that of Robert Ryckman. Annette St. Pierre admitted lying at the preliminary inquiry about the fact that she was having a sexual relationship with Ryckman. Ryckman had a strong motive to falsely implicate the appellant. There was a real risk of collaboration between Annette St. Pierre and Ryckman. The circumstantial evidence implicating the appellant in murder was not strong. The appellant had no obvious motive to commit murder. There was no tactical reason for the defence to not want the Vetrovec warning to be given. In the circumstances, a Vetrovec warning was essential.

• One of the defences raised by the appellant was that Ryckman had murdered the deceased. Ryckman owed the deceased money for purchases of cocaine. The trial judge mischaracterized Ryckman’s criminal record for crimes of violence by telling the jury that Ryckman’s previous conviction for armed robbery could have resulted from acting as a getaway driver when, in fact, he held up a store at knifepoint. This was evidence relied upon by the defence to show that Ryckman was the perpetrator.

• In his main charge, the judge told the jury the elements of murder and also told them that if the appellant lacked the requisite intent for murder, but participated by assaulting the deceased, and the assault was a substantial contributing factor to the death, he would be guilty of manslaughter. The defence position was that there was a second basis on which the jury could find the appellant guilty of manslaughter as opposed to murder. Specifically, if the appellant had stabbed the deceased, but he did not have the intent to kill due to consumption of alcohol or cocaine. In his charge with respect to intention to commit murder, the trial judge told the jury that it is a common sense inference that a man may be taken to intend the consequences of his acts. The judge did not relate the common sense inference to the question of intoxication as required by R. v. Robinson (1996), 1996 233 (SCC), 105 C.C.C. (3d) 97 at 116-119, 122-3 (S.C.C.). The jury, however, raised the question of the effect of the appellant’s consumption of alcohol and cocaine as a question. In his answer to the question, the judge repeatedly used language that made reference to the appellant’s capacity to form the requisite intent. The language used by the trial judge left it open to the jury to conclude that capacity to commit murder was the primary issue in relation to intoxication. The trial judge did not follow the guidance given by the Supreme Court in R. v. Seymour (1996), 1996 201 (SCC), 106 C.C.C. (3d) 520 at 526 rejecting the two-step charge referring to both capacity and intent in favour of a charge that focuses the jury’s attention on actual intent. Most critically, in his recharge, the trial judge never clearly told the jury that if they found the appellant caused the death of the deceased but that his intoxication raised a reasonable doubt with respect to his intent to commit murder, the appellant would be guilty only of manslaughter. Crown counsel objected to the recharge on this basis but the trial judge did not correct the recharge.

[4] Although the Crown conceded that the trial judge made the errors in his charge to the jury outlined above, he submits that no substantial wrong or miscarriage of justice occurred. We cannot agree. Each of the above errors was serious. We cannot be satisfied that, in spite of the errors, the verdict would inevitably have been the same and the verdict cannot stand.

[5] In the circumstances, it is not necessary for us to address the other grounds of appeal raised by the appellant nor to deal with the issue of the proposed fresh evidence. Even if admitted, that evidence could at most lead to a new trial. We do, however, wish to make further brief comment respecting statements made by the appellant after he had been remanded for a mental assessment to the Royal Ottawa Hospital. These statements were protected statements pursuant to s.672.21 of the Criminal Code. While such statements can be used to challenge an accused person’s credibility in accordance with s.672.21(3)(f), they cannot be used as positive evidence of an accused’s guilt as is the case with an accused’s ordinary statements. In his summary of the Crown’s position during his charge to the jury, the trial judge stated:

Mr. Cavanagh [Crown counsel at trial] points out to us the lies that he told the police at the scene, that he was asleep, that he was playing cards with Taylor [the deceased], his inconsistent statements between what he told you on the witness stand and what he told the doctors and nurses at the Royal Ottawa Hospital. All those inconsistencies are simply not the symptoms of an innocent persons or the manifestations of an innocent person.

[6] The trial judge mixed the appellant’s protected statements in with other earlier unprotected statements. As a result, the jury was left with the erroneous impression that there was no difference between the earlier statements made by the appellant and the protected statements made at the Royal Ottawa Hospital and that they could all be used as evidence of consciousness of guilt. It was incumbent on the trial judge to instruct the jury that the appellant’s protected statements were relevant only to his credibility and that they could not be used to incriminate him.

[7] In conclusion, the appeal is allowed, the verdict of guilty of second degree murder is set aside and a new trial ordered.

Released: DEC 11 2000 Signed: “Karen M. Weiler J.A.”

KMW “M. Rosenberg J.A.”

“Robert J. Sharpe J.A.”