DATE: 20010405

DOCKET: C31465

COURT OF APPEAL FOR ONTARIO

ROSENBERG, MOLDAVER AND GOUDGE JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Timothy E. Breen for the appellant

Respondent

• and -

PAUL PAYAN

Michal Fairburn for the respondent

Appellant

Heard: February 2, 2001

On appeal from the conviction by Justice Hugh R. McLean and a jury dated April 21, 1998.

GOUDGE J.A.:

[1] On April 21, 1998 the appellant was convicted of the second degree murder of Derek Coveny and was sentenced to life imprisonment with no eligibility for parole for ten years.

[2] While the appellant has raised a number of arguments in appealing his conviction, it is necessary to deal with only two: that his conviction constitutes an unreasonable verdict and that the trial judge erred in responding to a question from the jury. For the reasons that follow, I have concluded that the verdict is not unreasonable, but that the trial judge erred in answering the jury’s question and that this error requires that the appellant’s conviction be set aside and that there be a new trial.

THE FACTS

[3] The appellant and the deceased Derek Coveny were friends. They socialized together from time to time. At the time of his death Mr. Coveny was 22 years old and the appellant was 20.

[4] At about 10:00 p.m. on the evening of June 22, 1993 the appellant and Mr. Coveny gathered at the apartment shared by the latter’s girlfriend and another woman Cara Fogel. After an hour of drinking, the four went to a local club where they continued to consume significant quantities of alcohol.

[5] They returned to the apartment at about 2:00 a.m. on June 23. Up to that point there had been no sign of hostility between the appellant and Mr. Coveny.

[6] Shortly after arriving back at the apartment the appellant got a plastic bag from the kitchen, squeezed a tube of airplane glue into it and began inhaling. Ms. Fogel testified that very shortly thereafter he started to become increasingly argumentative and aggressive, saying, among other things, that he should punch Mr. Coveny’s lights out. After saying this, he insisted that he and Mr. Coveny go outside and fight so he could see what Mr. Coveny was made of, in case Mr. Coveny ever had to back him up. In due course, the two went outside and a fistfight ensued in which both were knocked down and bloodied and the appellant’s nose was broken.

[7] When he discovered that his nose had been broken the appellant became enraged. He began inhaling a second tube of glue and demanded that the two go back outside to resume the fight, saying that he would kill Mr. Coveny and that the only way Mr. Coveny could win was by killing him. Mr. Coveny finally agreed, but on their way outside the appellant picked up a pair of scissors. When the two squared off outside, the appellant lunged at Mr. Coveny and fatally stabbed him with the scissors.

[8] As the trial judge indicated in his charge, the appellant admitted the offence of manslaughter and the only live issue in the trial was whether the appellant meant to cause Mr. Coveny’s death or meant to cause him bodily harm knowing that it was likely to result in death and was reckless whether death ensued.

[9] Both the Crown and the defence called expert evidence relating to intoxication due to alcohol and glue and the possible resulting effect both on the appellant’s capacity to form the necessary specific intent and on his actual intent.

[10] The defence expert Dr. Gojer testified that in his opinion the effects of the glue inhaled by the appellant superimposed on the alcohol he had consumed caused extreme intoxication that would have impaired his capacity to form the intent to kill. He said that he could not see how the appellant would have known what he was doing. This opinion was founded in significant measure on the fact that after the appellant arrived back at the apartment and began inhaling glue there was an immediate, dramatic, and adverse change in his personality and mental state. This change was exemplified by the appellant’s statement that he should punch Mr. Coveny’s lights out. In other words, the glue had a quick and significant intoxicating effect on him causing restlessness and combativeness.

[11] The Crown’s theory on the other hand was quite different. In part, as is apparent from his closing address, Crown counsel invited the jury to conclude that the appellant made the statement about punching Mr. Coveny’s lights out before he was under the influence of the glue and that he used the glue essentially for the purpose of facilitating the action of being aggressive with Mr. Coveny.

[12] After the jury had deliberated for approximately two hours they returned with this question: “Did the evidence indicate that Paul Payan was huffing glue prior to him making the comment that he should punch Derek Coveny’s lights out?”

[13] Initially, both counsel took the position that this was a matter to be left to the jury’s deliberations and the trial judge, after some hesitation, agreed. He then instructed the jury to this effect and that he would not say anything further to them about it.

[14] Shortly thereafter, and upon reflection, defence counsel asked the trial judge to respond to the question by reviewing with the jury the evidence of Cara Fogel which appears to have been the only evidence on this matter. Ms. Fogel was clear that the appellant had begun inhaling the glue prior to the statement. The trial judge declined to do so, saying that on the basis of the question asked he was not prepared to review any evidence with the jury. The jury returned its verdict some three and one-half hours later.

ANALYSIS

[15] The appellant argues that the verdict is unreasonable and that the evidence cannot support a finding of the necessary intent to kill.

[16] I disagree. There was ample evidence upon which a reasonable jury properly instructed could have rendered this verdict. Those who observed the appellant that evening up until he returned to the apartment noticed no physical or cognitive signs of impairment. Up to that point he had conversed easily with Ms. Fogel. The appellant, after saying that he should punch Mr. Coveny’s lights out, articulated a reason for wanting to fight Mr. Coveny. He carried through with the fight and reacted with anger to being injured by Mr. Coveny in that fight. He then cleaned himself up before resuming the fight and inflicting the fatal wound. The Crown’s expert evidence pointed towards the fact that the appellant was functioning at both a physical and cognitive level, that he had the capacity to form the necessary intent, and that this was possible despite the amount of glue inhaled and alcohol ingested because of the appellant’s chronic tolerance for these substances.

[17] This ground of appeal fails.

[18] The appellant’s second argument is that the trial judge erred in his response to the jury’s question because he failed to review the relevant evidence for the jury. The appellant says that the prejudice caused by this error makes a new trial necessary.

[19] I agree. Many cases have made clear the great importance to be attached to questions from the jury and the necessity of answering those questions fully and correctly. As Cory J. said in R. v. S. (W.D.) (1994), 1994 CanLII 76 (SCC), 93 C.C.C. (3d) 1 (S.C.C.) at p. 8:

There can be no doubt about the significance which must be attached to questions from the jury and the fundamental importance of giving correct and comprehensive responses to those questions. With the question the jury has identified the issues upon which it requires direction. It is this issue upon which the jury has focused. No matter how exemplary the original charge may have been, it is essential that the recharge on the issue presented by the question be correct and comprehensive. No less will suffice. The jury has said in effect, on this issue there is confusion; please help us. That help must be provided.

[20] The jury’s question in this case showed that they were uncertain about whether the evidence indicated that the appellant began inhaling glue before he said that he should punch Mr. Coveny’s lights out. Ms. Fairburn fairly conceded and we agree that by asking this question the jury was seeking a review of the evidence. The question also indicates that this issue was an important one for the jury. Its importance is hardly surprising in the context of the positions taken at trial. The defence position, through its expert, was that the glue had a rapid and highly intoxicating effect on the appellant demonstrated in part by his becoming markedly aggressive immediately upon starting to inhale. The Crown as well focussed on this issue in saying to the jury that the appellant made the statement before he was under the influence of the glue and that he inhaled to give himself the courage to carry through with his aggressive actions.

[21] In the face of this question and its importance in this trial, it was inadequate for the trial judge to respond as he did. Defence counsel asked that the trial judge review for the jury the evidence of Ms. Fogel and he should have done so. While it is true that the factual determination was ultimately up to them, the jury was uncertain as to what the evidence was on this particular point. A full answer required a review of that evidence which was simple and unequivocal. Only Ms. Fogel testified on this issue and she was clear that the appellant was huffing glue prior to making the statement.

[22] In my view, the refusal of the trial judge to review this evidence with the jury could have caused significant prejudice to the appellant. The jury may have proceeded as a consequence on the basis that the appellant had not started inhaling glue prior to saying that he should punch Mr. Coveny’s lights out. If so, this would have erroneously undercut one of the important foundations of the expert evidence called on behalf of the defence and could also have erroneously rendered significantly more attractive the theory of the Crown. In both respects prejudice would have resulted to the appellant.

[23] In summary, I conclude that the trial judge erred in law in failing to review the relevant evidence for the jury when he responded to the question. Given the prejudice this may have caused to the appellant, s. 686(1)(b)(iii) of the Criminal Code cannot be resorted to.

[24] I would allow the appeal, set aside the conviction and order a new trial on the charge of second degree murder.

Released: April 5, 2001 “MR”

“S.T. Goudge J.A.”

“I agree M. Rosenberg J.A.”

“I agree M. J. Moldaver J.A.”