DATE: 20010314

DOCKET: C33023; C33024; C32143

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., CARTHY AND LASKIN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

• and -

JOSEPH MELANSON

Appellant

Counsel: Joel Lehman for the appellant Robert Kelly for the Crown, respondent

Heard: December 14 and 15, 2000

On appeal from the order/sentence of Justice Hugh R. McLean dated September 23, 1999.

CARTHY J.A.:

[1] This appeal is made up of three appeals arising out of a complex procedural history, which includes two trials for attempted murder and an application to declare the appellant Joseph Melanson a dangerous offender. Although two of the appeals have been brought by the Crown, I will refer to Mr. Melanson as the appellant throughout.

[2] The short version of the events and issues leading to these appeals is that the appellant struck a woman on the head with a rock and was tried for attempted murder and aggravated sexual assault. The jury was hung on both counts but found the appellant guilty of the included offence of aggravated assault. At a second trial for attempted murder and aggravated sexual assault the appellant raised the special plea of autrefois convict. The trial judge accepted the plea with respect to the aggravated sexual assault count but not the attempt murder count. The jury convicted the appellant of attempt murder. Prior to sentence the Crown made a dangerous offender application, which was rejected by the trial judge. He then sentenced the appellant to two years less a day plus three years probation. The Crown then went to the trial judge at the first trial and sought and obtained a stay of the aggravated assault charge. In the appeals to this court the Crown seeks the dangerous offender designation or, alternatively, an increased sentence, while the appellant seeks to assert the plea of autrefois convict.

Factual Background

[3] Tracy Chan was 19 years old when, at 3:00 a.m. on March 7, 1997, she parked her car in the underground parking lot of her apartment building and began walking toward the elevator. The appellant, a security officer in the building’s garage, hit her on the head with a rock and began dragging her toward his office. She eluded his grasp and ran outside to a doughnut shop where she called the police. The police found the appellant sitting in his office, arrested him, and subsequently charged him with assault causing bodily harm and assault with a weapon. Ms. Chan suffered a minor abrasion on her head, which was treated with dressings, and a few days later she was symptom-free.

[4] A few weeks later another security guard in the building was cleaning out the office and found a duffel bag, which he turned over to the police. Among other things, the bag contained writings authored by the appellant which can only be described as horrific. These writings included “incident reports” on preprinted forms of the employer describing in the first person the disabling of a woman in the parking garage, taking her to the security office, raping and torturing her and killing her with a knife. Some of the accounts described cutting out the victim’s vagina and eating it after she is dead. Four of the accounts specified an Asian victim. One of them described going to the apartment number where Tracy Chan lives and dragging a Chinese woman down to the garage with the described above sequellae. The bag also contained knives, pieces of rope and black leather string. The above is only a partial description of the contents, sufficient to explain why, upon their discovery, the Crown issued a new information charging the appellant with attempted murder and aggravated sexual assault, along with the two original assault charges which were later withdrawn.

[5] At the first trial, Roberts J. instructed the jury that four verdicts of guilty or not guilty were available: murder, aggravated sexual assault and the included offences of aggravated assault or assault causing bodily harm. The jury was unable to reach a unanimous verdict on the attempted murder or aggravated sexual assault charges but found the appellant guilty of the included offence of aggravated assault.

[6] At that point in the proceedings the Crown argued before Roberts J. that a verdict on the lesser count could only follow a not guilty verdict on the aggravated sexual assault charge. In other words, an included offence cannot be supported and therefore accepted without a decision on the count as charged. Roberts J. disagreed and entered a verdict of guilty of aggravated assault. He then adjourned the sentence hearing. (It was only after the outcome of the second trial that the Crown again requested, and this time Roberts J. granted, a stay on the aggravated assault conviction.)

[7] In June of 1998 the appellant was retried before McLean J. on two counts: attempted murder and aggravated sexual assault. He pleaded autrefois convict to both charges. The trial judge accepted the plea on the second count, on the reasoning that a finding on the included offence of aggravated assault presupposes a not guilty finding on the main count of aggravated sexual assault, given the “identity between the charges”. On this appeal, it is the charge of attempted murder that is the focus of the autrefois convict plea. Following the verdict of guilty of attempted murder at this trial, the case was adjourned until the dangerous offender application could be heard.

First Issue: Is the Appellant Autrefois Convict?

[8] In criminal law jurisprudence, the civil defence of res judicata and issue estoppel manifest themselves in the rule against double jeopardy. There are several different versions of this rule, each with subtle differences in application. The special pleas of autrefois convict and acquit, derived from the common law and embodied in s.607 of the Criminal Code and s. 11(h) of the Charter, are two examples. Similar principles apply when a trial judge must determine whether, on a single count for murder, a charge to the jury is required on a lesser included offence. Finally, where there are multiple counts against a single accused, and more than one finding of guilt, once again the principles protecting against double jeopardy must be applied, this time in the form of the rule against multiple convictions.

[9] At the outset I put the defence position at its highest and in its simplest form. The defence submits that Mr. Melanson was tried twice for one delict – striking the victim with a stone – and that adding another conviction would violate the rule against double jeopardy.

[10] The public interest would be clearly undermined if a person could escape punishment for a crime because a jury could not reach a verdict but found guilt on a lesser offence. When a jury is “hung”, s. 653(1) of the Code contemplates empanelling a new jury for a new trial. None of the principles underlying the various forms of res judicata justify altering that course, so long as punishment is not duplicated.

[11] In this case, sentencing on the first trial was adjourned. Some time later, proceedings were stayed. On my analysis of the authorities the plea of autrefois convict requires a prior conviction, meaning in this context a complete adjudication including a verdict and a sentence, or another order by the trial judge. Where a sentence has not been imposed, the proper approach is to apply the rule against multiple convictions that was enunciated in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. In the instant case, Mr. Melanson’s two trials can be envisaged as one continuous trial culminating in a finding of guilty of attempted murder and aggravated assault. The lesser offence would be stayed.

Analysis

[12] Although the word “convicted” appears to have a simple and confined meaning the jurisprudence supports a broader interpretation in the context of its use in various sections of the Criminal Code.

[13] Section 610(1) reads:

610.(1) Where an indictment charges substantially the same offence as that charged in an indictment on which an accused was previously convicted or acquitted, but adds a statement of intention or circumstances of aggravation tending, if proved, to increase the punishment, the previous conviction or acquittal bars the subsequent indictment.

[14] The words “tending, if proved, to increase the punishment” implies that a sentence has previously been rendered. See Arcadi v. the King (1931), 1931 CanLII 429 (QC CA), 57 C.C.C. 117 (Que. K.B.) at 124, leave to appeal refused 1931 CanLII 68 (SCC), 57 C.C.C. 130 (S.C.C.).

[15] Although Arcadi turned on another issue, the Quebec Court of Kings Bench Appeal Side canvassed some older authorities and concluded that a plea of autrefois convict was not available to an accused who pleaded guilty but had not been sentenced before the Attorney General intervened to move the case to a higher court.

[16] In R. v. McInnis (1973), 1973 CanLII 545 (ON CA), 13 C.C.C. (2d) 471 (Ont. C.A.), this court was concerned with whether on a sentence appeal it could order a conditional or absolute discharge, which would set aside the conviction. Martin J.A. observed that the word “conviction” has different meanings in different contexts. These different meanings include a verdict of guilt, a sentence, the verdict plus the sentence, and the record of the conviction. He quotes from R. v. Vanek, 1944 CanLII 113 (ON CA), [1944] O.R. 428, 82 C.C.C. 53 (C.A.), [1944] 4 D.L.R. 59 where Robertson C.J.O. observes:

The word “conviction” is, in truth, equivocal. In Burgess v. Boetefeur and Brown (1844), 13 L.J.M.C. 122, at 126, 135 E.R. 193, Tindal, C.J. said: “In common parlance no doubt it is taken to mean, the verdict at the time of trial, but in strict legal sense it is used to denote the judgment of the Court.” This dictum is cited in Rex v. Ireland, [1910] 1 K.B. 654 at p. 659, where the opinion is expressed that the words “convicted” and “conviction” are of no very precise meaning. Reference may also be made to Paley on Summary Convictions, 9th ed., at p. 584. Among the cases there cited is Rex v. Harris (1797), 7 T.R. 238, 101 E.R. 952, where a conviction that did not state an adjudication was quashed. Lord Kenyon said in that case “A conviction is in the nature of a verdict and judgment, and therefore it must be precise and certain. And notwithstanding some old cases in Salkeld and in other books to the contrary, I take it that the judgment is an essential point in every conviction, let the punishment be fixed or not”.

[17] After a full review of the authorities, Martin J.A. concluded that in the context of that case the word “convict” should be interpreted broadly to embrace both the verdict and the sentence.

[18] Facts which come closer to those before this court arose in R. v. Richards (1993), 96 C.A.R. 268 (P.C.). The accused was charged with murder and offered a plea of manslaughter, which was accepted by the Crown. Upon arraignment he pleaded guilty and was remanded for a sentencing hearing. In the meantime, the Director of Public Prosecutions decided to discontinue the proceedings and to bring a new indictment for murder. Section 20(8) of the Constitution of Jamaica provides:

(8) No person who shows that he has been tried by any competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence save upon the order of a superior court made in the course of appeal proceedings relating to the conviction or acquittal”…

[19] Note that there is no reference in this provision to “punishment” as in s.610(1) of the Code. This makes it more difficult to give a broad meaning to “convict” than under s.610(1).

[20] In the Privy Council, Lord Bridge addressed the issue in these terms:

It is common ground between the parties and their Lordships readily accept as correct that section 20(8) of the Constitution of Jamaica is simply intended to embody the common law doctrines of autrefois convict and autrefois acquit. The central issue raised by the appeal is whether a plea of autrefois convict can be sustained by anything less than evidence that the offence with which the defendant stands charged has already been the subject of a complete adjudication against him by a court of competent jurisdiction comprising both the decision establishing his guilt (whether it be the decision of the court or of the jury or the entry of his own plea) and the final disposal of the case by the court by passing sentence or making some other order such as an order of absolute discharge. If this issue is resolved negatively, then the plea of autrefois convict could not be sustained in this case. But Mr. Thornton forcefully submits that no more is required to sustain the plea than that the court before whom the defendant had previously been charged should have decided his guilt, whether by the court, where it is the tribunal of fact, announcing its decision to that effect, by the return of a guilty verdict by the jury or by the “acceptance” of a plea of guilty. If he is right in this, then a subsidiary issue arises as to what constitutes for this purpose a sufficient “acceptance” of the plea.

With respect to the central issue there is a curious conflict of authority which their Lordships must now resolve. It has been said many times that the word “conviction” is ambiguous and it has sometimes been construed in a statutory context as referring to nothing more than a finding of guilt. But, in the absence of something in the context which suggests that narrower meaning, the authorities in the 19th century and earlier all seem to point to the conclusion that the requirement to establish a conviction requires proof not only of the finding of guilt but also of the court's final adjudication by sentence or other order. Thus in Hale’s Pleas of the Crown (1778) Vol. 2 ch. 32, p. 251, it is said:

“If A be indicted and convict of felony, but hath neither judgment of death, nor hath prayd his clergy, this is no bar of a new indictment for the same offence, if the first were insufficient … and it seems, tho it were sufficient, yet it is no bar without clergy or judgment.”

[21] His Lordship identifies the underlying rationale of autrefois convict as being to prevent duplication of punishment:

Wemyss v. Hopkins (1875) L.R. 10 Q.B. 378 was not a case of autrefois convict in the strict sense. The defendant had been convicted under two different statutes of two offences which both arose out of essentially the same facts. Allowing his appeal against the second conviction, the court applied by analogy what their Lordships take to be the principle which underlies the doctrine of autrefois convict. Explaining that principle, Blackburn J. said at p. 381:

“The defence does not arise on a plea of autrefois convict, but on the well-established rule at common law, that where a person has been convicted and punished for an offence by a Court of competent jurisdiction, transit in rem judicatam, that is, the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished again for the same matter; otherwise there might be two different punishments for the same offence.”

[22] While on the facts in Richards the trial had not proceeded beyond a guilty plea, the Privy Council dealt with the issue in broader terms and I adopt their reasoning. Given the accepted flexibility in the meaning of “conviction”, and the necessity to interpret the word according to the context in which it is found, it must surely be taken to include sentence or other adjudication in s.610(1) of the Code. The pursuit of justice with fairness between Crown and accused would not be served by a narrower construction. It would simply offer the accused something akin to an undeserved “get out of jail free card”.

[23] In the recent decision in R. v. Shrupka (2001), 2000 MBCA 112, 149 C.C.C. (3d) 410 (Man. C.A.), the Manitoba Court of Appeal follows much the same reasoning as I have in concluding that the word “conviction”, as found in s.487.052(1) of the Code, includes disposition by sentencing.

[24] On the facts of this case, Mr. Melanson knew from the outset that he was facing the attempt murder charge; he was not acquitted by the jury (which would have been a final adjudication); he was not punished for the assault conviction; and the trial proceeding effectively continued into the second trial, albeit after adjournment and before a new trial judge and jury.

[25] In my view, the essentials of autrefois convict have not been made out in this case. Accordingly, the appeal on this ground should be dismissed. The Kienapple principle applies to the conviction for aggravated assault and the order of Roberts J. staying that conviction should stand.

Second Issue: Did the Trial Judge’s Charge On Intent Mislead the Jury?

[26] Mr. Melanson also appeals on the basis of the trial judge’s charge to the jury on intent. The complaint is that he used a commonplace example to explain the difference between accident and intent – putting a foot through a glass door with intent to break the glass or as a result of tripping. In my view, the example was inoffensive and probably irrelevant to a jury who could only find intent to murder from the writings found in the accused’s office. I would therefore dismiss the Melanson appeal.

Third Issue: Did the Trial Judge err in Refusing to Designate the Appellant a Dangerous Offender?

[27] The dangerous offender application was heard in September 1999. The application was brought under s.753 of the Code which reads:

753. (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or

[28] At the time of the application, the appellant was 49 years old. He had no criminal record, and thus repetitive behaviour was not the issue. Therefore, the only relevant subsection was s.753(1)(a)(iii).

[29] Three experts gave evidence, Dr. McDonald and Dr. Bloom for the Crown and Dr. Fedoroff for the appellant.

[30] Dr. McDonald, a forensic psychiatrist, concluded that the appellant “suffers from a problem of sexual deviance, involving being rape prone and sadistic and who currently appears to have little or no potential for treatment. This leaves him as an obvious potential danger to women in the community …”.

[31] Dr. Bloom, also a forensic psychiatrist, expressed a “guarded” prognosis, which he explained to mean that “one doesn’t know really enough about his clinical situation to prognosticate in a clear and favourable fashion. One has information which is worrisome and one considers the prognosis guarded at that time”. His guarded diagnosis was that Mr. Melanson was a sexual sadist whom, if untreated, posed a high risk of re-offending.

[32] Dr. Fedoroff is a forensic psychiatrist with a subspecialty in sexual paraphilias and an international reputation in that field. He diagnosed the appellant as suffering from Asperger’s Syndrome, a developmental delay syndrome, which Dr. Federoff has experience treating. He did not diagnose sexual sadism but conceded the likelihood. He saw no likelihood of the appellant carrying out his written fantasies and did not believe that he intended to murder the victim in this case or, as Dr. Fedoroff put it, he would not have permitted her escape. Nor is he aware of any sexual sadist who committed a first murder over the age of 40. He has successfully treated many patients with the same syndrome as the appellant. The appellant has shown willingness to be treated, and Dr. Fedoroff stated he would be willing to treat him as soon as he returns to the community.

[33] In cross-examination Dr. Fedoroff testified:

Q. In terms of danger to the public, you feel there is a significant risk he may re-offend again in terms of violence against woman?

A. Without treatment, yes.

[34] No one pursued reconciliation between this observation, his earlier evidence and his filed report concluding that the facts do not support a finding under s.753(1)(a)(iii).

[35] As an aside from this narrative, the Crown on appeal took exception to Dr. Fedoroff’s inclusion in his diagnosis the opinion that the appellant did not intend to kill the victim in a sexually sadistic manner. The Crown’s position is that this is directly contrary to the jury’s verdict and cannot be a basis for an opinion on the issue of dangerousness. I disagree. There is a difference between the approach to sentencing and arriving at a dangerous offender finding. On sentencing, the jury’s express and implied factual findings must be taken as a given. See R. v. Brown (1991), 1991 CanLII 73 (SCC), 66 C.C.C. (3d) 1. By contrast, the dangerous offender application is concerned with a broader question of whether, on all of the facts, a finding of future dangerousness can be justified. The court is compelled by the Code to hear from psychiatrists on this issue and they, in turn, form their opinions using all medically relevant data. This may include the accused’s version of events that never reached the jury. A psychiatrist can offer only a hypothetical opinion if a set of assumptions is dictated in advance. A trial judge is always in a position to discount an opinion if the premises upon which it is based appear questionable. Here, Dr. Fedoroff was asked whether the appellant was likely to carry out his written fantasies in the future. The context within which Dr. Fedoroff concluded that the appellant was not likely to carry out those fantasies was his knowledge that it is unprecedented for a sexual sadist to kill at age 50 for the first time, and that the appellant was large and strong enough to have prevented the victims escape if he had the will to do so.

[36] McLean J. opened his reasons by indicating a clear preference for the evidence of Dr. Fedoroff. Before analyzing the implications of the evidence, he turned to examine the threshold test for brutality contained in s.753(1)(a)(iii). He states:

It is the Crown’s theory, in fairness, that the Court should consider the act itself, that is striking the victim, together with the writings, as showing a continuum, that adds brutality to the act itself. The difficulty with this is that the Crown is asking the Court to ascribe a motive of sexual torture or degradation to the act that was performed clearly by Mr. Melanson. For a finding to be made of attempted murder the only finding necessary for a jury is that there was the requisite intention, not motive, must be found. In other words, there was an intention to kill. It is clear from the Court of Appeal’s definition, that the conduct is coarse, savage or cruel and capable of inflicting severe psychological damage on the victim. Therefore the “conduct” is what must be interpreted.

[37] The Court of Appeal decision to which McLean J. is making reference is R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. (3d) 336. There, this court held that when the behaviour associated with the predicate offence includes “conduct which is course, savage and cruel and which is capable of inflicting severe psychological damage on the victim”, the offence is “sufficiently brutal to meet the test”. Supra, at p. 349. The court said nothing to permit McLean J. to infer that the conduct must be defined by the narrowest view of the jury’s verdict. Rather, s.753(1)(a)(iii) permits consideration of any conduct “associated with the offence”. Certainly the writings and articles found in the appellant’s office fit within that description. Moreover, the jury could not have found attempted murder simply on the basis of a blow to the head and an attempt to drag the victim towards his office. In reaching their verdict, they must have considered the evidence of the writings. Finally, at the hearing called to determine whether the appellant was a present danger to others, all three psychiatrists found the writings and paraphernalia to be of extreme significance. It would defeat the purpose of the inquiry to ignore what the psychiatrists in their findings determined to be the most important evidence, or indicator, of potential dangerousness.

[38] McLean J. concluded that the Crown did not discharge its burden to prove that the appellant was a dangerous offender. He therefore dismissed the application.

[39] In my view, by dismissing the application without making a proper finding on all the evidence going to the s.753(1)(a)(iii) brutality threshold, or a finding on the medical evidence as to whether the appellant is a danger to society, the trial judge committed a reversible error. While this court might be able to make a finding on the undisputed evidence as to whether the brutality threshold has been met, we are not in a position to weigh conflicting psychiatric evidence. Even if we were to adopt McLean J.’s preference for Dr. Fedoroff’s evidence, we could not from this vantage point assess the apparent inconsistencies between his report and his evidence in chief, and the answer quoted above from cross-examination. We must therefore order a new hearing.

[40] This outcome may have a salutory effect on the ends of justice. The appellant is about to be released from jail. He will be on probation for three years on strict conditions which include receiving treatment from Dr. Fedoroff. The new hearing will be held to determine if he is a danger to the public. In the past, this court has expressed concerns as to the impact of anticipated treatment and prospects of a cure upon a finding of dangerousness. See: R. v. Poutsoungas (1989), 49 C.C.C. (3d) p. 388 at 390; R. v. Sullivan (1987), 1987 CanLII 6853 (ON CA), 37 C.C.C. (3d) 143 at 160; R. v. Pontello (1977), 38 C.C.C. (3d) 262 at 268. The efforts of Dr. Fedoroff, together with any treatment the appellant has received in prison, may make a diagnosis of future dangerousness more definitive than it was prior to treatment.

[41] As a final matter, I turn now to the issue of sentence. The Crown appealed the sentence of the appellant in the event this court did not impose a dangerous offender disposition.

[42] In his reasons, the trial judge again showed his preference to Dr. Fedoroff’s more encouraging diagnosis of a treatable condition. The trial judge also noted that the appellant is a first offender and that he had served 31 months pre-trial custody. The judge imposed a sentence clearly designed to emphasize rehabilitation. That sentence was one of two years less a day and three years probation with strict conditions as to reporting and a requirement of co-operation regarding treatment. Given the long pre-trial custody and the fact that this crime that stems from a mental illness, the trial judge was justified in minimizing the appellant’s incarceration in order to maximize the controlled probation period so that treatment would be available with the sentence. Accordingly, I would dismiss the appeal from sentence.

[43] Orders should issue in each appeal in accordance with these reasons.

Released: RM March 14, 2001

“J.J. Carthy J.A.”

“I agree R. McMurtry C.J.O.”

“I agree John Laskin J.A.”