DATE: 20011220
DOCKET: C31890
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) v. JEFFREY PAQUETTE (Applicant/Appellant)
BEFORE:
LABROSSE, ABELLA and CHARRON JJ.A.
COUNSEL:
Melvyn Green and Benson Cowan, for the appellant
Milan Rupic, for the respondent
HEARD:
December 13, 2001
On appeal from his conviction by Justice Lawrence W. Whalen, sitting with a jury, on January 12, 1999 and from the sentence imposed on January 13, 1999.
E N D O R S E M E N T
[1] The appellant was convicted of the second degree murder of his common-law wife. He was sentenced to life imprisonment without eligibility for parole for fourteen years. He appeals against both his conviction and sentence.
[2] In the early evening of September 24, 1997, the appellant shot his wife in the face at close range with a 12-gauge shotgun and killed her. Both the appellant and the deceased had been drinking that day. The evidence of numerous witnesses who had contact with the appellant before and after the shooting varied as to the effect of the day’s alcohol consumption on the appellant.
[3] The appellant claimed that he had no memory of much of the day in question. The appellant’s blood-alcohol level registered 0.171 and 0.175 in Breathalyzer tests taken approximately four hours after the shooting. He could not say whether he had consumed alcohol after the shooting, a factor that may have affected the assessment of his degree of intoxication at the time of the killing. The evidence did not resolve this question. The deceased’s body registered a blood-alcohol reading of 0.159.
[4] The jury heard much evidence on the consumption of alcohol and its potential effects on the appellant.
[5] At trial, it was the Crown’s theory that the appellant was a “mean drunk” who shot and killed his wife. The Crown contended that the alcohol the appellant had consumed before he shot his wife had affected neither his capacity nor his intent to commit murder.
[6] The theory of the defence was that the appellant, a lifelong alcoholic and manic depressive, did not form the requisite intent for second degree murder because of his state of intoxication and/or the effect of his mental illness at the time. Alternatively, the defence argued that Mr. Paquette was not criminally responsible on account of a chronic mental disorder.
[7] There was no dispute at trial that the appellant had shot the deceased. The primary issue was the appellant’s mental state and the extent of his criminal liability.
[8] The appeal raises four issues:
A. Did the trial judge err in his instructions as to the use that could be made of the appellant’s testimony on the voir dire?
B. Did the trial judge err in failing to charge the jury on the limited use of evidence of the appellant’s violent and aggressive disposition?
C. Did the trial judge err in his instruction on the issue of intention?
D. The fitness of the sentence.
A. Did the trial judge err in his instructions as to the use that could be made of the appellant’s testimony on the voir dire?
[9] Before the trial proper began, a voir dire was held on the admissibility of certain statements allegedly made by the appellant. The appellant testified at the voir dire and his evidence was clearly open to the inference that he was far less intoxicated at the time of the shooting than was suggested by his testimony at trial. He was closely cross-examined on numerous inconsistencies relating to his memory or lack of it with respect to various events before and after the shooting.
[10] The appellant argues that the jury may have accepted and made substantial or incriminatory use of the appellant’s voir dire testimony. Consequently, the appellant contends that Mr. Paquette’s voir dire testimony should have been the subject of a clear and forceful instruction prohibiting the jury from using it as evidence of his capacity, mental state, or intent at the time of the shooting.
[11] The trial judge instructed the jury that:
The fact that a witness has, on a prior occasion, made a statement inconsistent with or contradictory to his or her evidence at this trial goes only to the credibility or truthfulness of the witness. The testimony of the witness may be discredited in whole or in part by showing that he or she previously made a statement which is inconsistent with his or her present testimony.
He further instructed the jury:
…I want to make it quite clear that such statement cannot be used by you to prove the truth of the facts to which it relates unless in your opinion the witness has, while testifying, accepted the truth of his or her prior statement. …You can only use those inconsistent parts in assessing the credibility or truthfulness of the witness’ testimony at this trial.
[12] In our view, the trial judge correctly instructed the jury as to the proper use that could be made of the appellant’s testimony at the voir dire as it arose during the course of the cross-examination at the trial proper.
[13] Moreover, it is noteworthy that prior to delivering his charge to the jury, the trial judge provided copies of the draft charge to counsel. No material objection was made concerning the instructions on previous inconsistent statements and no objection was made following the delivery of the charge on this issue. In these circumstances, defence counsel’s failure to object both before and after the charge “says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection”. See R. v. Jacquard (1997), 113 C.C.C. (3d) 1 at 19.
B. Did the trial judge err in failing to charge the jury on the limited use of evidence of the appellant’s violent and aggressive disposition?
[14] Evidence of a violent and aggressive disposition when the appellant had consumed alcohol was introduced as part of the material which formed the basis of the testimony of an expert witness who testified for the defence on the intoxication and mental disorder defences. The Crown advanced the position that this evidence was consistent with the appellant being a “mean SOB” or a “mean drunk”.
[15] The appellant now argues that the jury may have drawn the impermissible inference that because of his prior violent acts or disposition, the appellant was more likely to have formed the necessary intent to commit the offence in question. Accordingly, the trial judge was required to give the jury limiting instructions as to the proper use that the jury could make of that evidence.
[16] While such an instruction could well have been given by the trial judge, we are not satisfied that this non-direction constituted an error of law in the circumstances of this case. The following circumstances are particularly noteworthy:
the evidence in question was clearly admissible and relevant to the jury’s assessment of the appellant’s mental state at the time of the offence;
there was no evidence of any particular past acts of violence or of previous offences;
the appellant’s character and disposition were not so deplorable that the jury might inadvertently have made impermissible use of this evidence;
the fact that the appellant had shot and killed the deceased was admitted and the sole issue was intent.
In these circumstances, it is our view that there was no risk that the jury would have engaged in improper reasoning to convict the appellant. It was not the type of evidence that showed that the appellant had a propensity to form the intent to kill, nor was it evidence of behaviour that would make the jury want to punish him for his past conduct.
[17] Once again, we note with respect to this ground of appeal that experienced defence counsel made no objection to the draft charge or following the delivery of the charge to the jury on this issue. Given that we are dealing with non-direction as opposed to misdirection, the lack of objection from the defence is all the more significant.
C. Did the trial judge err in his instruction on the issue of intention?
[18] The appellant submits that the trial judge’s charge was inadequate with respect to the nature of the intent required for murder and with respect to the role that the evidence of intoxication and mental disorder could play in the determination of the appellant’s criminal liability.
[19] The trial judge clearly spelled out in detail the requisite intent that the Crown was required to prove for second degree murder and the included offence of manslaughter, including the issues of intoxication and mental disorder or mental stress falling short of insanity.
[20] It would have been preferable if the trial judge had refrained from instructing the jury on the “common-sense inference”. However, he specified to the jury that this inference applied only to a sane and sober person. In addition, he directed the jury to consider the evidence of intoxication and mental disorder before they could use the “common-sense” approach. No prejudice would result for the appellant as a consequence of this instruction.
[21] We are satisfied that when the charge is read as a whole, the jury could not reasonably have been mistaken as to the correct law on the issue of intent.
D. The fitness of the sentence.
[22] The trial judge carefully considered the relevant aggravating and mitigating circumstances in this case, including the appellant’s sad life and circumstances. We see no error in principle, no failure to consider relevant factors, nor any over-emphasis of the appropriate factors in the sentence imposed. Moreover, the sentence falls within the normal range of sentences that may reasonably be imposed in cases of second degree murder of an unarmed spouse. There is no basis to interfere.
DISPOSITION
[23] In the result, the appeals against conviction and sentence are both dismissed.
(signed) "J. M. Labrosse J.A."
(signed) "R. S. Abella J.A."
(signed) "Louise Charron J.A."