DATE: 20010126

DOCKET:C23953

COURT OF APPEAL FOR ONTARIO

CHARRON, BORINS, and SIMMONS JJ.A

BETWEEN:

JOHN ELLIOT TAVENOR

Peter J. Connelly for the appellant

Appellant

• and -

HER MAJESTY THE QUEEN

Milan Rupic for the respondent

Respondent

Heard: November 27, 2000

On appeal from conviction for first degree murder by Justice W. B. Lane, with a jury, dated January 26, 1996.

SIMMONS J.A.:

[1] Shelley Nadine Taylor was killed on January 1, 1994 at the apartment in Oshawa where she lived with her common law spouse, John Tavenor. She died as a result of a ruptured liver, which caused internal bleeding. Ms. Taylor also suffered massive bruising to the head, a broken nose, broken ribs, bruises to the torso, multiple burns, abrasions and bruising to the upper thighs, and blunt force trauma to the vaginal area. The pathologist who examined her ruled out the possibility of accidental death.

[2] Mr. Tavenor acknowledged causing Ms. Taylor’s death but testified he was too intoxicated at the time of the incident to recall what had occurred. He did not dispute at trial that he was guilty of manslaughter.

[3] The Crown sought a conviction for first-degree murder on the basis of causing death while committing a sexual assault, as well as planning and deliberation. In addition to other evidence dealing with first-degree murder, the Crown called a jailhouse informant who testified about conversations with Mr. Tavenor in prison in which Mr. Tavenor mentioned certain details about the case.

[4] Mr. Tavenor seeks to introduce fresh evidence relating to the credibility of the jailhouse informant. In addition, he raises the following grounds of appeal:

(i) the trial judge erred in his charge to the jury on intoxication;

(ii) the trial judge erred in his charge to the jury by failing to link the instruction on the common sense inference that a sane and sober person intends the natural consequences of his acts to the instruction on intoxication; and

(iii) the trial judge erred in his charge to the jury on reasonable doubt.

Background

[5] Mr. Tavenor and Ms. Taylor celebrated New Year’s Eve 1993 at a local bar in Oshawa with a group of friends. Each consumed a considerable amount of alcohol. Mr. Tavenor also reported consuming hashish, marijuana and a variety of prescription drugs including Lectopam, Halcion and Valium.

[6] Mr. Tavenor left the group following the arrival of other friends, and was not seen during the balance of the evening. The late arrivals dropped Ms. Taylor off at her apartment at approximately 1:30 a.m. She had been sick in the car on the way home and was having difficulty standing up.

[7] Mr. Tavenor visited some of the original celebrants at an apartment at about 2:25 a.m. and remained until about 2:50 a.m. While he was there he referred to Ms. Taylor as a “slut” and commented she was probably with a male friend [one of the late arrivals] “fucking him in the back of a car”. When urged to go home because his spouse was probably there passed out, Mr. Tavenor said: “Well if she’s not, she will be when I get there”.

[8] Mr. Tavenor arrived home shortly after 3:00 a.m. but did not have a key to the apartment. He went to the building superintendent’s apartment at about 3:35 a.m. to ask for a key. The superintendent accompanied him to his apartment to let him in. She observed Ms. Taylor unconscious at the doorway. Ms. Taylor’s face was obscured and her shoes were off, but otherwise she appeared uninjured and fully dressed.

[9] Between about 2:00 a.m. and 5:15 a.m., on several occasions Mr. Tavenor telephoned the home of the male friend he had earlier assumed Ms. Taylor was with, and spoke to the ‘friend’s’ mother and brother. In his second to last call, Mr. Tavenor told the friend’s brother he had found Ms. Taylor lying in front of their apartment with her bra and underwear in her hand and with two black eyes. He also suggested it was the friend who was responsible for the injuries. During the last telephone call, at around 5:15 a.m., the mother heard moaning in the background.

[10] Neighbours heard various noises described as thuds, a loud bang and a loud crack emanating from the Taylor-Tavenor apartment during the early morning of January 1, 1994. One neighbour heard a female voice scream: “stop it, stop it, stop it”. Another heard a male voice shout: “shut up, shut up, stop your crying”.

[11] Ms. Taylor’s grandmother tried to reach her by telephone during the morning of January 1, 1994. After several unsuccessful calls she spoke to Mr. Tavenor who said he did not know where Ms. Taylor was.

[12] Mr. Tavenor visited neighbours around noon on January 1, 1994. It appeared as if he had just taken a shower. He told the neighbours he thought Ms. Taylor had been raped the night before because he found her in the hallway “all messed up with no panties”.

[13] Mr. Tavenor called the male friend at about 2:30 p.m. on January 1, 1994 and accused him of having sexual relations with Ms. Taylor. He said he had found her in the hallway the evening before, that she had been beaten, her clothes were ripped and her underwear was in her hand. He suggested the friend was responsible. Mr. Tavenor said he fell on top of Ms. Taylor on the coffee table when he was carrying her into the apartment. He asked the friend to help him take Ms. Taylor to the hospital. The friend called Ms. Taylor’s sister.

[14] Ms. Taylor’s sister arrived at the apartment shortly thereafter. Ms. Taylor was lying in bed with her arms crossed over her chest. Mr. Tavenor said he had just finished dressing her. When asked if she was still alive, Mr. Tavenor said: “Of course she’s still alive. She just asked me to sit her up”. Mr. Tavenor said he had found Ms. Taylor in the apartment hallway naked and beaten with her clothes torn. He said he picked her up and carried her into the apartment but tripped and fell onto the coffee table. A paramedic arrived at approximately 2:54 p.m. The paramedic found Ms. Taylor’s skin cold, indicating she had been dead for several hours.

[15] During a subsequent search, police found the clothing Ms. Taylor had been wearing on New Year’s Eve in various places in the apartment. All of it was cut or torn. There were no burn holes on the clothing and only one item of clothing had any signs of blood.

[16] The examining pathologist found relatively small quantities of blood on Ms. Taylor’s body. In his opinion, the state of the body was consistent with it having been wiped clean.

[17] Ms. Taylor suffered a series of bruises and abrasions to her inner thighs and groin area, including the vulva and labia. In the opinion of the examining pathologist, the injuries were caused by repeated applications of blunt force.

[18] At trial, the jailhouse informant testified about conversations with Mr. Tavenor. According to the informant, Mr. Tavenor said he had confronted the deceased some time prior to her death about sleeping with other men. Ms. Taylor responded by threatening to call police if he gave her a hard time, and by saying that he would never see his son again. Mr. Tavenor said he “knew that [he] had to get her”. Although Mr. Tavenor never explicitly stated he planned to kill Ms. Taylor, he indicated that he knew if he killed her while drunk, “the most he’d be looking at is a manslaughter conviction”. On another occasion Mr. Tavenor spoke about the details of what had happened. He said: “I beat her and she was kicking and screaming”. He indicated in graphic terms that he had kicked her in the groin so that she would never be able to have sexual relations with anyone else.

[19] Other witnesses at trial testified that the informant had a reputation for lying and dishonesty. One witness said the informant was removed from a particular range in prison because of his dishonesty and that he had been known to disclose stories about other inmates that were untrue in order to gain extra privileges.

Analysis

Issue 1: The Fresh Evidence

[20] The gist of the proposed fresh evidence is that, while still in custody, the jailhouse informant proposed on several occasions to recant his trial testimony in this case. He never proceeded with a formal recantation, and he repeatedly advised the investigating officer and correctional authorities that his testimony at trial was true.

[21] The context of the informant’s threats to recant was that he was frustrated and dissatisfied with his treatment in prison, particularly with the failure of the authorities to respond to his needs as an informant. He wanted to secure better treatment, but preferably his release. He ultimately commenced a civil action against Corrections Canada. Charges in another case in which the informant was scheduled to testify were ultimately withdrawn as a result of similar threats. In that case, the informant was the principal Crown witness and there was no other confirmatory evidence.

[22] The appellant suggests the significance of this evidence is that it demonstrates a willingness on the part of the informant to fabricate as necessary in order to achieve his purposes. Whereas the jury may have perceived the informant as being motivated by moral repugnance and a wish to be a good citizen, this evidence counteracts that motivation and substantially undermines the informant’s credibility even though there was ultimately no recantation.

[23] The criteria for admitting fresh evidence on appeal are set out in Palmer and Palmer v. The Queen (1980), 50 C.C.C. (2d) 193 (S.C.C.) at p. 205:

(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases …;

(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) the evidence must be credible in the sense that it is reasonably capable of belief, and

(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[24] The Crown contests the admissibility of the proposed evidence on the basis of criteria (2) and (4).

[25] The Crown submits that because the proposed fresh evidence falls short of an actual recantation it does not bear on a substantive issue at the trial, but only the informant’s credibility. Significant evidence was adduced to indicate the informant was not only an unsavoury witness with a lengthy criminal record, but also an inherently untrustworthy witness based on his reputation for dishonesty. There can be no doubt that the jury was aware of the inherent frailties in his testimony. The Crown therefore suggests the credibility of the informant was not a potentially decisive issue at the trial.

[26] I am unable to agree. The informant’s testimony was central to the issue of planning and deliberation, which was one branch of the Crown’s theory of first degree murder. There is no way of knowing which, if either, single branch of that theory the jury used in arriving at a verdict of first degree murder. Although the Crown acknowledged the informant’s status as an unsavoury witness, the ultimate credibility of his testimony remained an issue for the jury to determine. The proposed fresh evidence is relevant to the credibility of the informant’s testimony, which was in turn relevant to the issue of planning and deliberation. The significance, or extent, of the relevance of the proposed fresh evidence is a matter more properly assessed under criteria (4).

[27] In this regard, I am unable to find the proposed fresh evidence of sufficient significance that it could reasonably be expected to have affected the verdict in this case. The informant has never actually recanted. Rather, he has consistently maintained that his trial testimony is true. Although his threats to recant raise obvious issues of credibility, his motivation is patent and similar to the evidence of his character adduced at trial. The proposed fresh evidence adds little to the picture of the informant that was presented to the jury. The trial judge gave the jury clear instructions about the care required in assessing his evidence and the dangers associated with accepting his testimony in the absence of confirmatory evidence. I am unable to conclude that this additional evidence would have had any impact on the jury’s verdict.

Issue 2: Two Step Charge on Intoxication

[28] The trial judge’s instructions to the jury on intoxication included a “two-step McKinley instruction” which addressed both the accused’s capacity to form the specific intent to kill as well as whether he had actually formed the requisite intent. This trial was completed prior to the decision in R. v. Robinson (1996), 105 C.C.C. (3d) 97 (S.C.C.), which held at p. 118 that a jury instruction “… which only asks the jury to consider whether the evidence of intoxication, along with all of the other evidence in the case, impacted on whether the accused possessed the requisite specific intent is to be preferred …”. Here, however, expert evidence was lead by the defence concerning the impact of alcohol and drug consumption on capacity to form intent. Appellant’s counsel does not therefore assert that a two-step charge was inappropriate. He also concedes that the trial judge correctly summarized the two-step approach at some points. However, he contends that undue emphasis was placed on capacity to form intent in the charge, particularly by certain references to capacity alone, such that the overall effect was that the jury might have concluded that the ultimate issue was whether the appellant had the capacity to form the intent to commit first or second degree murder. Appellant’s counsel asserts that this error was compounded by the following specific instruction on the sexual assault branch of first-degree murder, which followed the instructions on intoxication:

Now in order for first-degree murder on the other branch to be established as far as the sexual assault end of it is concerned, the Crown must prove beyond a reasonable doubt that the accused had the mental capacity to form an intent to commit a sexual assault. In other words, you must be satisfied beyond a reasonable doubt that the kicking, if that is what it was, or the injury to that area of the body which interfered with the sexual integrity was not in fact caused as a result of an accidental intrusion by whatever means in that part of the body. So you must be satisfied that there was the intent to commit the sexual assault or at least the mental capacity to form an intent. You do not necessarily have to find that there was an intent, I suppose, as long as you find that there was a mental capacity when we are talking about intoxication.

[29] Reading the charge as a whole, the trial judge made numerous specific references to the necessity of the jury going on to consider “whether Mr. Tavenor did in fact have the actual intent to kill the victim” even if they found he had the capacity to form that intent. Most significantly, following the charge to the jury, counsel collaborated in drafting a recharge designed to deal with various points, which the trial judge delivered as follows:

Lack of memory, in itself, is not a defence. It is a factor that may or may not assist you in determining if you have a reasonable doubt whether or not Mr. Tavenor could, by virtue of his intoxication, form the intent or did, by virtue of his intoxication, form the intent. Even if you do not have a reasonable doubt that he had a blackout, you must still consider if he had the necessary intent. You will have to consider firstly whether he had the capacity to form the intent and secondly, whether he did in fact form the intent at three different points: firstly, when considering the intention to commit murder; secondly, when considering whether he planned and deliberated the crime, and a lesser degree of intoxication may be required to negative planning and deliberation; thirdly, you must apply the same two stage test to determine whether he had the intention to commit a sexual assault.

[30] To the extent that the trial judge may have made any earlier error, I find that error to have been corrected by this recharge, which clearly conveys the ultimate issue to be whether Mr. Tavenor had the necessary intent.

Issue 3: Failure to Link Common Sense Inference to Intoxication

[31] Where reference is made to the common sense inference that a sane and sober person intends the natural consequences of his acts, the trial judge is obliged to ensure that the jury understands two important conditions: first, the reasonable common sense inference may be drawn only after an assessment of all the evidence, including the evidence of intoxication; and second, the inference cannot be applied if the jury is left with a reasonable doubt about the accused’s intention. See R. v. Seymour (1996), 106 C.C.C. (3d) 520 (S.C.C.) at paragraph 23.

[32] Here, the trial judge’s instructions to the jury concerning the necessary intention for second degree murder included the following:

… You may be wondering how you go about deciding whether or not Mr. Tavenor intended to cause the death of Shelley Taylor. It can be difficult to decide what someone intends to do because intention is really a state of mind and we cannot see inside people’s minds to decide whether or not they intend to do things. However, your common sense will tell you that people normally intend the normal consequences of their actions. For example, suppose a man walks up to a plate glass door and he looks around furtively and then kicks in the door. In these circumstances, you would probably conclude that he intended to kick in the door. On the other hand, suppose the same man is walking along the sidewalk not watching where he is going and he trips over something that has been left on the sidewalk and his foot goes through the glass door. In that case, you would probably conclude that it was an accident and that he did not intend to kick in the door. Thus, in deciding whether Mr. Tavenor intended or meant to cause the death of Shelley Taylor, you are entitled as a matter of common sense to draw an inference that a sane and sober person intends the natural and probable consequences of his or her voluntary acts.

If you decide that Shelley Taylor’s death would be the natural consequence of Mr. Tavenor’s actions, you are entitled to conclude that Mr. Tavenor intended to kill Shelley Taylor by those actions. However, you are not required to make this conclusion. You may decide that Mr. Tavenor did not intend to kill Shelley Taylor even though Shelley Taylor’s death was the natural consequence of his actions. In the end, you will have to consider all of the surrounding circumstances, including what Mr. Tavenor said and did, in order to decide whether the Crown has proved that he did in fact mean to cause the death of Shelley Taylor. Before you can find that the accused had the necessary criminal intent, you must be satisfied beyond a reasonable doubt that this intent is the only reasonable inference to be drawn from the proven facts. Please remember that the question for you is to decide what Mr. Tavenor did in fact intend and of course, you are going to have to examine all of the evidence that you have heard in order to make a reasoned conclusion in that regard.

[33] Later on, the trial judge dealt with the defence of intoxication. His comments included the following:

There is evidence before you that raises the possibility that the defence of voluntary intoxication may apply. Again, the accused does not have to prove that this defence applies because, as I have indicated to you, the accused does not have to prove anything. The onus is on the Crown to prove beyond a reasonable doubt that the defence does not apply. If you are left with a reasonable doubt about whether the defence applies, the Crown has not proven its case beyond a reasonable doubt and therefore, you must find Mr. Tavenor not guilty on the murder counts…

[34] It may have been preferable that the instruction on the common sense inference include reference to the subject of intoxication to be dealt with later in more detail. Nevertheless, I am satisfied that the instructions to “consider all of the surrounding circumstances” and to “examine all of the evidence”, when coupled with the subsequent instructions on intoxication, were sufficient to bring home to the jury that they would not be able to draw the common sense inference if left in a state of reasonable doubt on the issue of intoxication.

Issue 4: Instructions on Reasonable Doubt

[35] The trial judge said the following about reasonable doubt:

I now want to explain to you the presumption of innocence which applies in a criminal trial. Simply put, it means that an accused person is presumed to be innocent until the Crown has satisfied you beyond a reasonable doubt of his guilt. That is a presumption which remains with an accused and for his benefit from the beginning of the trial until the end. The onus or burden of proving the guilt of an accused person beyond a reasonable doubt rests upon the Crown attorney and never shifts. There is no burden on an accused person to prove his innocence. The Crown must prove beyond a reasonable doubt that an accused person is guilty of the offence with which he is charged before he can be convicted. If you have a reasonable doubt as to whether the accused committed the offence with which he is charged, it is your duty to give the accused the benefit of that doubt and find him not guilty on that particular count.

Now, you might ask what I mean by reasonable doubt. It is not possible for anyone to prove anything with absolute certainty and so the burden of proof on the Crown is only to prove guilt beyond a reasonable doubt. When I speak of reasonable doubt, I use the words in their own ordinary, natural meaning, not as a legal term having any special connotation. A reasonable doubt is an honest and fair doubt based on reason and common sense. It is a real doubt, however, not an imaginary or frivolous doubt which might be conceived by an irresponsible juror to avoid his plain duty.[Proof Beyond a] Reasonable doubt is achieved when you, as jurors, feel sure of the guilt of the accused. It is that degree of proof which convinces the mind and satisfies the conscience so you, as conscientious jurors, feel bound or compelled to act upon it. You must be able to say to yourself, “ the accused is really guilty. Of that I am morally certain”.

[36] It is obvious the trial judge misspoke himself at one point as noted. I do not view that error as one likely to have confused the jury however, particularly since no reference was made to it here, or at the trial.

[37] Three errors are alleged: (i) defining the words “reasonable doubt” by reference to “their ordinary natural meaning, not as a legal term having any special connotation”; (ii) reference to the concept of “moral certainty”; and (iii) failure to distinguish between the criminal and civil standards of proof.

[38] The jury charge in this case was delivered prior to the decision in R. v. Lifchus, [1997] 3 S.C.R. 320. In Lifchus, Cory J. catalogued a series of ingredients essential to a proper explanation of “reasonable doubt”. He also outlined a list of references best avoided in order not to mislead the jury as to the correct standard of proof. It is quite clear items (i) and (ii) fall within the category of references to be avoided, while item (iii) is a significant omission from the list of essential ingredients.

[39] However, it is equally clear that the task of an appellate court reviewing a pre-Lifchus charge is “not a mechanical exercise” and that the “test is whether there [is] substantial compliance with the principles set out” in Lifchus: R. v. Avetysan, 2000 SCC 56, [2000] S.C.J. No. 57 at paragraphs 11 and 12. The primary question is whether the charge, read as a whole, gives “rise to a reasonable likelihood that the jury misapprehended the correct standard of proof”: R. v. Avetysan, supra, at paragraph 12.

[40] Although there are obvious Lifchus flaws in this instruction, it does comply in important respects with the necessarycriteria: (i) by linking the burden of proof to the presumption of innocence; (ii) by emphasizing that the burden of proof rests with the prosecution and never shifts; and (iii) by confirming that a reasonable doubt must be based on reason and common sense and by contrasting such a doubt with an imaginary or frivolous doubt.

[41] Most importantly however, when read as a whole, this instruction conveys a clear sense that the required standard of proof is quite high. Although it does not refer specifically to the civil standard of proof, this instruction adequately communicates a standard well in excess of a balance of probabilities. Significantly, there are no misleading references elsewhere in the charge that were likely to lead the jury to conclude proof on a balance of probabilities would suffice. Assessing this instruction as a whole, while the language is not as precise as the Lifchus formulation, I see no reasonable likelihood that the jury would have been mislead as to the correct standard of proof.

[42] This appeal is accordingly dismissed.

Released: January 25, 20001 “LC”

“J. Simmons J.A.”

“I agree, Louise Charron J.A.”

“I agree, S. Borins J.A.”