DATE: 20020129 DOCKET: C32369

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and– SHELDON TAYLOR (Appellant)

BEFORE:

LABROSSE, ABELLA and CHARRON JJ.A.

COUNSEL:

Marie T. Henein, for the appellant

Susan M. Chapman, for the respondent

HEARD:

December 12, 2001

On appeal from the conviction of first degree murder by Justice Clair Marchand sitting with a jury dated March 7, 1999 in Newmarket.

E N D O R S E M E N T

[1] After a seven week jury trial, the appellant was convicted of first degree murder on the basis that he forcibly confined the deceased while causing his death. The appellant appeals against his conviction on the grounds that the trial judge erred in his charge to the jury and that the jury’s verdict on first degree murder was unreasonable. For the reasons that follow, we do not agree with the appellant’s submissions.

[2] The deceased, Chris Batta, lived in Thornhill with his wife and twenty-one month old daughter. He worked as a cell phone agent and also ran a business buying and selling electronic equipment, which he advertised in newspapers.

[3] On December 30, 1996, at 9:45 a.m., the appellant called the deceased and told him that he wanted to sell a VCR to him. The phone call lasted approximately five minutes. The appellant then went to the deceased’s apartment, arriving at approximately 11:41 a.m. On his way, he told a man who drove him part of the way that he was going to visit a man named “Chris” to sell him a VCR for $150.

[4] According to the deceased’s wife, the deceased had adopted a practice of secretly videotaping customers for safety reasons and for monitoring transactions that might involve stolen equipment. For approximately thirty-five minutes after the appellant arrived at the deceased’s apartment, the deceased videotaped their interaction. On the videotape, the deceased is seen inspecting the VCR and commenting on its age and poor condition. The appellant asked the deceased to offer him a good price because he had come a long way and complained that the trip had otherwise been a waste of his time. The deceased is recorded as saying that he could have saved the appellant a trip if the appellant had told him about the VCR’s condition over the phone. The deceased offered the appellant $10 for the VCR.

[5] Between 12:15 and 12:22 p.m., the deceased turned the videotape off.

[6] At approximately 12:22 p.m., the deceased called his brother, telling him that there was a man in his apartment attempting to sell him a VCR for too much money, and asking him if he wanted to buy the VCR.

[7] At approximately 1:00 p.m., the deceased called the superintendent of the apartment building. He told the superintendent that his mother would be visiting soon, and that there was a man in his apartment who was attempting to sell him a broken VCR.

[8] At approximately 1:15 p.m., an eleven-year-old girl, who lived directly above the deceased’s apartment, began hearing a man yelling and screaming, as well as the sound of objects crashing to the floor. The yelling and screaming continued for about five minutes and involved only one voice.

[9] At approximately 1:15 p.m., a neighbour, who lived below the deceased and left her apartment to go out, heard a voice crying “help, police” about three times. She left to find the property manager, and they searched the second floor for the location of the voice. They heard the deceased’s baby crying. Then, approximately four or five minutes after the first cry for help, they saw the appellant emerge from the deceased’s apartment. They left to find the superintendent and, when they returned a few minutes later, found the deceased lying in the hallway outside his apartment. They called 911. Fire fighters were dispatched at 1:21 p.m. and arrived between 1:23 and 1:25 p.m. The police were dispatched at 1:22 p.m. and arrived at about 1:29 p.m.

[10] The deceased was pronounced dead that evening. His injuries included sixteen stab wounds to his head and neck, two of which were particularly serious. The deceased also had marks on his back, six small linear abrasions near his mouth on his chin and neck, and other small abrasions near his eyes. He had bruising to his eyes and a wound on his scalp, both of which were caused by blunt force injuries.

[11] When the police arrived, they noted that the apartment looked ransacked, particularly the master bedroom and en suite bathroom. The bedroom’s closet doors and the bathroom’s vanity doors were open, and their contents were strewn on the floor.

[12] The police found several foot impressions in the deceased’s apartment, including two shoe impressions in the en suite bathroom, which matched shoes seized from the appellant.

[13] The police also found blood samples in several locations in the deceased’s apartment. The telephone in the bedroom had blood on the receiver as well as bloody fingerprints on the numbers 9 and 1. In the en suite bathroom, there was a large pool of blood on the floor near the sink, which matched the deceased’s. The size of the pool indicated that the deceased had bled there for several minutes. Blood samples from the wall and vanity door of the bathroom showed a mixture of blood. The dominant blood was the deceased’s and the other blood could not be excluded as the appellant’s.

[14] The police found an empty false-bottomed Pledge can with the deceased’s blood and other blood that could not be excluded as being the appellant’s. The deceased had kept money in the false-bottomed can and had kept the can under the vanity in the en suite bathroom.

[15] The police recovered six knives from various locations in the apartment. DNA samples from one knife matched those of the deceased. Another knife was broken and had three samples of blood and tissue matching the deceased. DNA samples from a pair of scissors recovered from the kitchen floor also matched the deceased.

[16] Five hair swipes matching the deceased were also found throughout the apartment. One was on a kitchen cabinet door 53 to 61 inches from the ground. The second was on the laundry room door in the kitchen 9 to 24 inches from the ground. Finger swipes from that door suggested that the deceased had tried to get up from the floor. The third swipe was on the master bedroom closet 32 inches from the ground. The fourth was on the shower door 20 inches from the ground. The fifth was on the en suite bathroom door 16 to 20 inches from the ground.

[17] The appellant had injuries to his hands consistent with grabbing a sharp blade. Several of his tendons were cut. He also suffered knife cuts to his back above his right shoulder and to his neck behind his right ear.

[18] After the killing, the appellant went to stay with a friend in Whitby. On December 31, 1996, the police searched the appellant’s apartment. They found blood-stained clothing and a blood-stained buck knife with the deceased’s blood on the blade and a mixture of blood on the handle. The appellant’s jacket and shirt had holes consistent with knife penetration.

[19] On January 1, 1997, the appellant changed his appearance by dyeing and cutting his hair and then went to Montreal.

[20] The appellant was tried for first degree murder pursuant to s. 231(5) of the Criminal Code, which provides that murder is first degree murder when death is caused while forcibly confining the victim. Under s. 279(2) of the Code, a person commits forcible confinement when he or she confines, imprisons or forcibly seizes another person without lawful authority.

[21] The Crown’s theory was that the deceased and appellant had not met before December 30, 1996, when the appellant tried to sell the deceased a VCR. When the deceased stated that he would not pay more than $10 for the VCR, the appellant became frustrated. As a result, while in the kitchen, the appellant grabbed the deceased and began a five-minute controlled domination of the deceased to force him to reveal the location of his money.

[22] According to the Crown, the appellant used a buck knife he had brought with him to inflict the superficial abrasions on the deceased’s face and neck and the small stab wounds near his eyes. During the ensuing struggle, the appellant threw the deceased against the cupboards and the deceased picked up a knife and stabbed the appellant. The appellant took the knife and dragged the deceased out of the kitchen and through the corridor towards the master bedroom and en suite bathroom, creating the series of hair swipes. In the bathroom, the appellant forced the deceased to produce the money in the false-bottomed Pledge can under the vanity. He then ransacked the deceased’s closets for more money and left the apartment, leaving the deceased bleeding on the bathroom floor.

[23] The appellant testified at trial. According to the appellant, he and the deceased had known each other before December 30, 1996. The appellant testified that the deceased used to buy cocaine from the appellant and that the appellant visited the deceased’s apartment partly to collect a drug debt.

[24] The defence asserted that the appellant had acted in self-defence. The appellant testified that he and the deceased began to discuss the alleged drug debt around 1:10 p.m. The deceased asked for more time to pay the debt, left the kitchen where they had been talking, and returned with the Pledge can to show the appellant that he could afford to repay the debt. The deceased gave the appellant $50, which the appellant took. The appellant then took another $150 from the deceased’s jacket, walked to the foyer, and took out his phone to call a taxi.

[25] At this point, according to the appellant, the deceased stabbed the appellant in the back near his shoulder, the appellant turned around, and the deceased stabbed him again in the back of his neck. The appellant struggled with the deceased in an attempt to take the knife from him and sliced his hands in the process. The appellant pushed the deceased into the kitchen counter and tried to gouge his eyes to force the deceased to release the knife. When the deceased released the knife, the appellant began stabbing him. When the knife broke, the deceased took a different knife, which the appellant also managed to take from the deceased.

[26] The appellant further testified that the deceased fell to the floor and the appellant put the knife in his pocket without thinking. Since he was cut, the appellant went down the apartment’s hallway to the en suite bathroom to find out where he was bleeding. He tried to rinse his hands but found it too painful. He then left the bathroom and found containers with money in the bedroom closet. After emptying these containers, he saw the Pledge can sitting on the corner of the desk. He removed approximately $1,000 from the can and left the apartment.

[27] The jury convicted the appellant of first degree murder. The appellant appeals his conviction, arguing that the trial judge, Marchand J., erred in his charge to the jury and that the jury’s verdict on first degree murder was unreasonable.

1) The Charge to the Jury

[28] The appellant submits that Marchand J. erred in several aspects of his jury charge: (1) his definition of “forcible confinement”; (2) the way he related the defence evidence on first degree murder; (3) his instructions on the use of evidence of the appellant’s after-the-fact conduct; (4) his instruction on self-defence; (5) his response to a question from the jury; and (6) his instruction on the use of the appellant’s criminal record in relation to self-defence. We are not persuaded that Justice Marchand erred in any of these respects.

[29] Justice Marchand’s definition of “forcible confinement” was consistent with this Court’s recent decision in R. v. Kimberley (2001), 157 C.C.C. (3d) 129 (Ont. C.A.) and suggests no error.

[30] His relation of the defence evidence on first degree murder was equally without error. Justice Marchand did not, as argued, fail to review contentious expert evidence on forcible confinement, nor did he err in his instruction to the jury on how to approach the circumstantial evidence in the case. Furthermore, after his initial charge to the jury, Justice Marchand granted - in full - a request by defence counsel to refer the jury to particular pieces of evidence and to explain their significance from the defence’s perspective.

[31] There was, moreover, no error in Justice Marchand’s instructions on the use of evidence of the appellant’s after-the-fact conduct. His initial instruction was flawed by leaving open the possibility of using this evidence to distinguish between different levels of culpable homicide, rather than using it only to determine whether there was a culpable homicide at all. However, both counsel drew this error to the attention of Justice Marchand, who then corrected it by instructing the jury on the proper use of the evidence. His corrected instruction was sufficient, in our view, to ensure that the jury would not misuse this evidence.

[32] The appellant submits that Marchand J. ought to have instructed the jury that the appellant could rely upon self-defence under s. 34(2) of the Criminal Code even if he provoked the initial assault. But, as this Court held in R. v. Jenkins (1996), 29 O.R. (3d) 30 (C.A.) (leave to appeal to the Supreme Court of Canada refused February 27, 1997), whether omitting this instruction amounts to an error of law depends on the charge as a whole. In our view, the charge as a whole could not have misled the jury into believing that the appellant could not rely upon self-defence under s. 34(2) if he provoked the initial assault.

[33] Justice Marchand’s response to a question from the jury was also error-free. It should be noted that the response was jointly agreed upon by counsel. The jury had asked Marchand J. to clarify whether provocation was available if the provoking incident occurred during a violent struggle. Justice Marchand provided both counsel with a copy of this question, asked them to think about it, and discussed the question and its appropriate response with them. Both counsel then agreed on a response, wrote it down, and gave it to Justice Marchand, who in turn gave it to the jury. This response was entirely adequate, since it did not inappropriately limit the appellant’s use of the defence of provocation even after the struggle had begun.

[34] Finally, the jury was properly instructed on the use of the appellant’s criminal record in relation to self-defence. Marchand J. instructed the jury that they could only use the appellant’s criminal record to assess his credibility, and Marchand J.’s subsequent instructions did not undermine this admonition.

2) The Reasonableness of the Jury’s Verdict on First Degree Murder

[35] In R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 and R. v. Yebes, [1987] 2 S.C.R. 168, the Supreme Court of Canada held that in determining whether a jury verdict is unreasonable, an appellate court must consider “whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered”. Since we have concluded that the jury was properly instructed, the question becomes whether the jury’s verdict on first degree murder was one that it could reasonably have rendered based on the evidence. In particular, because the verdict depended upon a finding that the appellant had murdered the deceased while forcibly confining him, the question is whether the jury could reasonably have concluded that a forcible confinement occurred.

[36] The appellant submits that the Crown’s evidence of forcible confinement was equally consistent with the conclusion that no forcible confinement occurred. He also submits that certain aspects of the expert evidence undermine an inference of forcible confinement. He pointed out that one of the Crown’s experts testified that it was possible that the deceased’s two most serious wounds were inflicted not in the bathroom, but elsewhere in the apartment. Another expert testified that the evidence did not necessarily suggest that the deceased’s head was being held down when his hair came into contact with the various places in the apartment, and that the blood in the en suite bathroom did not necessarily disclose indications of a struggle.

[37] However, in our view, the respondent provides a compelling and persuasive reply to these submissions. If certain aspects of the expert evidence undermine a finding of forcible confinement, other aspects support it. Although it was impossible to determine with certainty where the deceased’s two most serious wounds were inflicted, expert evidence indicated that the large pool of blood on the en suite bathroom floor likely came from these wounds and that it would have taken several minutes for the pool of blood to accumulate. Although it was impossible to determine with certainty whether the deceased was being held down while the hair swipes were created, expert evidence indicated that some of these swipes were made while the deceased was lying down and either kneeling or crouching. And although there was no evidence of a struggle in the bathroom, expert evidence indicated that such evidence would not be expected if the deceased had, at the time, been weak or unconscious due to loss of blood.

[38] In addition to expert evidence, there was sufficient evidence from which the jury could reasonably infer that the appellant had forcibly confined the deceased. First, the superintendent testified that when the deceased called him to ask if he wanted to buy the appellant’s VCR, the deceased seemed “somehow concerned”, as though he “wanted to let somebody know about the situation” that someone was in his apartment attempting to sell him a VCR.

[39] Second, the neighbour living directly above the deceased’s apartment heard a single loud voice yelling and screaming, and the neighbour living below his apartment heard a man crying “help, police” before the appellant emerged from the deceased’s apartment. This evidence suggests a one-sided confrontation rather than a struggle between two people.

[40] Third, if the jury did not accept the appellant’s evidence that the deceased voluntarily brought out the false-bottomed Pledge can, it was a reasonable inference that the appellant had managed to find the money in the can by forcing the deceased to reveal its location.

[41] Finally, there was evidence that the appellant had controlled the deceased’s movements while in the deceased’s apartment. The appellant had told a friend that he was able to move the deceased from the kitchen, where his baby daughter was located. At various points, the appellant held the deceased by the face and managed to hold him over the sink. The marks on the deceased’s back, while consistent with falling backward onto the ground, were also consistent with being restrained against the kitchen counter. The deceased’s superficial wounds to the face and neck were consistent with the appellant’s use of a knife to dominate the deceased and inconsistent with the suggestion of a mutual struggle. And the deceased’s hair swipes suggest that he moved or was moved from the kitchen to the bedroom and en suite bathroom, and that he was lying down and either kneeling or crouching at various points during this movement.

[42] Viewing this evidence as a whole, it cannot be said that the jury acted unreasonably in concluding that the deceased had been forcibly confined. There is therefore no basis to interfere with the jury’s verdict on first degree murder.

[43] The appeal is therefore dismissed.

Signed: “J.M. Labrosse J.A.”

“R.S. Abella J.A.”

“Louise Charron J.A.”