1. DATE:20020621 DOCKET:C29491

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) -and- KEITH MADELEY (Applicant/Appellant)

BEFORE:

CARTHY, LABROSSE and ABELLA JJ.A.

COUNSEL:

Christopher D. Hicks and Sam Scratch,

for the appellant

Nadia Thomas and Graeme Cameron,

for the respondent

HEARD:

June 17, 2002

RELEASED ORALLY:

June 17, 2002

On appeal from his conviction and sentence by Justice Robert A. Blair on March 12, 1998.

E N D O R S E M E N T

1. [1] The appellant was convicted of first degree murder by a court composed of Justice Blair and a jury. He was sentenced to life imprisonment with ineligibility for parole for 25 years. He appeals both his conviction and sentence.

2. [2] The victim was shot and killed in early March 1995. His body was found in the outhouse on his property on March 7, 1995. At the material time the appellant was 22 years old, unemployed and not in school. He was in a relationship with the 14-year-old granddaughter of the victim.

3. [3] The Crown led considerable evidence which was capable of pointing to the appellant as the murderer. It included the following.

4. [4] Evidence was led to establish that the murder had occurred around noon on March 3, 1995. There was also evidence that, on that day, the appellant had looted the victim’s bank account.

5. [5] It was admitted at trial that four fresh shell casings found near the outhouse as well as two live rounds came from a .22 calibre rifle purchased by the appellant in November 1994. Forensic analysis determined that a bullet recovered from the victim was consistent with having been fired from the appellant’s rifle. Footprints containing the victim’s blood discovered in the outhouse matched the type and size of running shoes of the appellant and contained a similar wear pattern. Furthermore, forensic analysis of a jacket worn by the appellant identified the presence of the victim’s blood on the jacket’s cuffs.

6. [6] There was also evidence that a few weeks before the murder the appellant had purchased a file capable of sawing off a rifle barrel and a rifle cleaning brush.

7. [7] There was evidence that the appellant’s girlfriend (the victim’s granddaughter) had planted incriminating evidence on her parents’ property in order to divert attention away from the appellant. A pre-arrest explanation given to the police by the appellant as to his whereabouts on March 3, 1995 was later proved at trial to be demonstrably false. In addition to that significant lie, various conflicting accounts he had given to his mother about what he had done with his rifle were also false.

8. [8] A fellow inmate of the appellant, who knew him before his incarceration, provided evidence implicating the appellant in the murder. It included a piece of paper which was conceded to be in the appellant’s handwriting. It contained a script for perjury to be committed by the inmate for the purpose of exonerating the appellant, a false alibi and a possible plan for his escape from jail. Despite no prior contact with anyone from the state, the inmate assumed he would get a benefit from the Crown in exchange for his information. It was the position of the Crown that much of the evidence of the inmate could only have been learned by him from the mouth of the appellant.

9. [9] On a pre-trial application to prevent the inmate from testifying at trial, the trial judge rejected the appellant’s position that the inmate’s information came from a review of the Crown’s disclosure. The trial judge concluded that the only possible source of information of the inmate was the appellant himself. Furthermore, the trial judge concluded that the inmate was not an agent of the state during the relevant time and permitted him to testify at trial.

10. [10] In summary, the Crown presented a strong case against the appellant. The appellant did not testify in his own defence.

11. [11] Shortly after his arrest on April 7, 1995, the appellant’s ss. 7 and 10(b) Charter rights were seriously breached during his interrogation by the police. While the interview was being videotaped, the appellant was assaulted by one of the investigating police officers who demanded that the appellant reveal the location of the murder weapon. The appellant admitted that he had discarded the rifle in a creek and the police subsequently recovered it.

12. [12] Following the assault, there were discussions among police officers with respect to erasing the videotape and denying the existence of the assault. Ultimately, no evidence was destroyed and the assault was not denied. Crown Attorneys acquired knowledge of the incident and the police discussions. The videotape was disclosed to the defence. However, it was only after the appellant’s trial had commenced that disclosure of the discussions denying the incident was made. An application for a mistrial was granted to provide counsel for the appellant an opportunity to explore the effects of the delayed disclosure of the police discussions to suppress evidence of the assault and the role of the Crown Attorneys..

13. [13] In time, the officer who assaulted the appellant pleaded guilty to a charge of assault and two other officers involved in the discussions to destroy evidence were respectively convicted of attempt to obstruct justice and discreditable conduct under the Police Services Act.

14. [14] Counsel for the appellant brought a pre-trial motion for a stay of proceedings, on the grounds of the Charter breaches and on the grounds that there was a conspiracy by the police to destroy the evidence of the assault and a second conspiracy by the Crown to cover it up. The appellant alleged that the cumulative effect of the Charter breaches constituted an abuse of process which irreparably impeded the appellant’s ability to make full answer and defence.

15. [15] In detailed and excellent reasons, the trial judge rejected the allegation of a conspiracy by the police. He found that the options had remained alive but that there had been no agreement by the police to suppress the evidence of the assault. He also found that there had been no conspiracy by the Crown to cover up the incident.

16. [16] The trial judge fully recognized the seriousness of the improper police conduct and concluded that it did not justify the extraordinary remedy of a stay of proceedings, particularly as the defence had been provided with an opportunity to fully respond to the additional disclosure. Instead, the trial judge ordered that the evidence flowing from this breach should be excluded, namely, the videotape interview, a subsequent audio-tape which revealed the location of the gun, the physical evidence of the rifle, any evidence pertaining to its location and discovery and the statements made by the appellant to the fellow inmate pertaining to the rifle.

17. [17] The appellant raises four issues in this appeal:

A. The trial judge ought to have stayed proceedings;

B. Alternatively, the appellant should have been granted a constitutional exemption reducing his period of ineligibility for parole;

C. the trial judge should not have admitted the evidence of the inmate;

D. Error relating to essential elements of first degree murder.

A. The trial judge ought to have stayed proceedings.

16. [18] The appellant submits that the trial judge erred in failing to enter a stay of proceedings on the basis of the assault by the police, the violation of his Charter rights, the subsequent efforts of the police to conceal evidence of the assault and the late disclosure by the Crown of police efforts to conceal the police misconduct.

17. [19] As stated earlier, the trial judge rejected the allegations that there had been a conspiracy by the police to destroy the evidence of the assault and a second conspiracy by the Crown to cover it up. These conclusions are well supported by the evidence. However, he acknowledged that the police conduct in respect of the assault was a “blatant and inexcusable violation” of the appellant’s rights. .

18. [20] The trial judge considered that there were less drastic measures available to protect the appellant’s right to make full answer and defence. He redressed the prejudice arising from the fact that the police obtained information from the appellant in violation of his Charter rights and excluded that evidence. Similarly, when considering the Crown’s late disclosure, he took into account that the defence was provided with the opportunity to fully probe the late disclosure over the course of pre-trial proceedings.

19. [21] The trial judge also addressed the issue of the future effect of the actions of the police and the delayed disclosure on the repute of the administration of justice when he considered the criminal charges and disciplinary action taken against the officers who committed the misconduct. The past misconduct was unlikely to be perpetuated in subsequent judicial proceedings since the problems had already come to light, an independent investigation had been undertaken and the responsible officers were disciplined through the appropriate channels.

20. [22] Having taken appropriate steps to remedy the Charter breaches in this case, it was open to the trial judge to conclude that this was not one of those “clearest cases” in which the extraordinary remedy of a stay of proceedings would have been justified. There was, as he observed, also a strong public interest in having a full hearing of this most serious offence.

21. [23] The trial judge’s discretion not to impose a stay of proceedings is entitled to considerable deference. His reasons indicate that he instructed himself correctly on the various relevant principles and ultimately concluded that neither the appellant’s ability to make full answer and defence, nor that the administration of justice was so irreparably harmed that the last resort of a stay of proceedings was a necessary remedy in the circumstances of this case.

22. [24] We are unable to conclude that his discretion not to impose a stay was “so clearly wrong as to amount to an injustice.” See R. v. Regan (2002), 2002 SCC 12, 161 C.C.C. (3d) 97 (S.C.C.) at 146. On the contrary, we think that he properly exercised his discretion.

B. Alternatively, the appellant should have been granted a constitutional exemption reducing his period of ineligibility.

23. [25] With respect to this issue, the appellant relies on the same factual background as for his argument for a stay of proceedings. It is conceded that in R. v. Kelly (1990), 1990 11053 (ON CA), 59 C.C.C. (3d) 497 (Ont. C.A.) this court held that stand-alone “constitutional exemptions” from an otherwise valid mandatory minimum sentence are not available. See also R. v. McDonald (1998) 1998 13327 (ON CA), 127 C.C.C. (3d) 57 (Ont. C.A.) at 89-91 and Corbière v. Canada Minister of Indian and Northern Affairs (1999) 1999 687 (SCC), 173 D.L.R. (4th) 1 (S.C.C.) at 19. These decisions are determinative of this issue. We do not accept that this state of the law has been changed by the subsequent decision of the Supreme Court of Canada in R. v. Latimer (2001), 2001 SCC 1, 150 C.C.C. (3d) 129 (S.C.C.)

C. The trial judge should not have accepted the evidence of the inmate.

24. [26] In R. v. Broyles (1991), 1991 15 (SCC), 68 C.C.C. (3d) 308 (S.C.C.), the Supreme Court determined that two distinct inquiries are required to determine if the actions of an informer result in a violation of an accused’s right to silence. The first is whether the informer is an agent of the state. The second is whether the evidence was elicited by the state agent.

25. [27] With respect to the first requirement, the evidence is clear that there was no suggestion of inducement of any kind from the police and no promise made to him of any benefit by the police. As noted by the trial judge:

“…at the end of the day, [defence counsel] conceded that there is no evidence upon which it can be found that the Crown had done something to constitute [the inmate] a state agent. [The inmate] was acting on his own initiative, without the sanction or complicity of the state.”

26. [28] In these circumstances, the trial judge’s conclusion that the inmate was not a state agent is well supported by the evidence. The appellant does not meet the first part of the test.

D. Errors relating to essential elements of first degree murder.

27. [29] The trial judge made it clear to the members of the jury that they were required to resolve the issue of second degree murder and manslaughter before considering the issues of planning and deliberation. He went on to explain the separate concepts of planning and deliberation and the necessity of both being established, along with the intent to kill at the time of the murder. These were repeated correctly in answer to the request for clarification from the jury.

28. [30] There were numerous pieces of circumstantial evidence of before and after the fact conduct which lent considerable support to the Crown’s claim that the murder was planned and deliberate. While these individual pieces of evidence when considered in isolation may admit of a number of differing inferences, the trier of fact is entitled to have regard to the evidence as a whole.

29. [31] We see no error on the part of the trial judge with respect to this issue.

30. [32] In the results, the appeal is therefore dismissed.

31. “Carthy J.A.”

32. “Labrosse J.A.”

33. “Abella J.A.”