DATE: 20020820 DOCKET: C26391

COURT OF APPEAL FOR ONTARIO

DOHERTY, GOUDGE and MacPHERSON JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

Christopher Hicks and Sam Scratch for the Appellant

• and -

JASON HORVATH Applicant/Appellant

Brian McNeely for the Respondent

Heard: May 29, 2002

On appeal from conviction and sentence by Justice Colin McKinnon, with a jury, dated October 29, 1996 and December 13, 1996 respectively.

GOUDGE J.A.:

[1] [1] The appellant was charged with committing the first degree murder of Gerald Cuerrier on or about March 23, 1994. On October 29, 1996 he was found not guilty of first degree murder but was found guilty of second degree murder. On December 13, 1996 he was sentenced to life imprisonment with 13 years’ parole ineligibility. He appeals from both his conviction and his sentence.

[2] [2] The case for the Crown consisted of the following:

(a) Several witnesses who testified that the appellant had spoken about robbing and killing Cuerrier before March 23.

(b) Evidence of the appellant’s confessions on five occasions to different people after March 23. One of these was D. J. who as a young offender had pleaded guilty to manslaughter in the death of Cuerrier. D. J. testified that he drove the appellant and his brother to Cuerrier’s apartment, and that the appellant had brought with him his father’s .38 calibre revolver. D. J. said that he stood lookout while the two brothers entered. A few minutes later, after they emerged, the appellant indicated to D. J. that he had shot Cuerrier.

(c) Expert evidence that the one slug recovered from Cuerrier’s apartment was fired from the .38 calibre revolver belonging to the appellant’s father.

(d) Evidence of the appellant’s after-the-fact conduct, including his allegedly false alibi and his attempted use of Cuerrier’s bank card later on March 23.

(e) Expert evidence from the pathologist who performed the autopsy on Cuerrier who gave the opinion that it was possible that Cuerrier died on March 23.

[3] [3] While the defence called no evidence, nine witnesses were called by the trial judge at the request of the defence. Each testified, with varying degrees of certainty, that they had seen Cuerrier alive after March 23.

[4] [4] The jury began its deliberations late in the afternoon on October 25, 1996. They returned their verdict on the afternoon of October 29, 1996.

[5] [5] In this court the appellant pursued a number of grounds of appeal from conviction. We called on the Crown to answer two of these grounds and to these I now turn.

[6] [6] First, the appellant says that the trial judge delivered an improper exhortation to the jury. I do not agree.

[7] [7] Following the completion of the charge, the jury retired around 4:00 p.m. on October 25, 1996. After submissions from counsel, the trial judge completed his charge at 6:00 p.m. that day. The jury continued its deliberations over the next three and one-half days during which they returned to the courtroom with questions on several occasions. At 2:35 p.m. on October 29, the trial judge indicated the following to counsel:

Counsel, it’s been indicated that the jury is having some difficulty reaching a decision and I’m just going to indicate to them the words of Justice Cory in the R.M.G. case and perhaps that will assist them in further deliberating. I think what I will do is I’ll read that to them and then invite them to take a walk and just get some air because it had been indicated earlier that some of them wanted to have a walk. So I’ll read them this, give them a walk and then bring them back in. Okay. Bring in the jury.

[8] [8] The jury was then brought back to the courtroom and the trial judge delivered an exhortation which closely followed the language suggested for this purpose by Cory J. in R. v. G. (R.M.), 1996 176 (SCC), [1996] 3 S.C.R. 362 at para. 48. The trial judge concluded his exhortation with this:

And what I’m going to ask is that some of the Clerks take you for a walk before we put you back in the jury room. I think it’s the time and I just want to clear out that that jury room, maybe get a fan in there and I want – it’s a beautiful day, the sun is shining and I’m going to just ask some of the Court staff to bring you down by the river and make sure you don’t jump in. Just sort of cool off and then come back in and try to render a verdict.

[9] [9] The jury returned with its verdict at 4:10 p.m. that afternoon.

[10] [10] In these circumstances I can find no error by the trial judge in delivering this exhortation. There is no suggestion that the trial judge received any communication form the jury beyond what he shared with counsel as recorded in the transcript quoted above. While the jury was not deadlocked, it had been deliberating for several days and several jurors had requested the relief of a walk. In the course of responding positively to that request the trial judge delivered an exhortation which closely tracked that approved by the Supreme Court of Canada in R. v. G. (R.M.), supra. It was entirely non-coercive. It imposed no deadline. It implicitly invited the jury to take the time it needed and to keep open minds in the process. Experienced defence counsel took no objection either before, when the trial judge indicated what he would be doing, or after, once the exhortation had been delivered. It simply cannot be said that this exhortation imposed any form of pressure on the jury. This ground of appeal must therefore fail.

[11] [11] Second, the appellant argues that the trial judge erred in admitting certain out-of-court statements and in the instruction he gave to the jury about them. The first of these was the final greeting left by the deceased on his answering machine: “Hi. Gerry. Wednesday night [March 23, 1994], ah, 7:30 almost. I’ll be back here just a little later, 8:00 to 8:30. Salut.” Through a police witness, the trial judge admitted this statement for its truth. This was done without objection from the defence.

[12] [12] The appellant says that this statement was hearsay, admitted without a showing of the circumstances of its creation or otherwise establishing its reliability.

[13] [13] Both the defence and the Crown wanted the tape admitted, albeit each relied on different parts of the taped message. Neither raised any objection to its admissibility or to the trial judge’s instructions. It seems self-evident that counsel were satisfied that the circumstances surrounding the making of the tape offered a sufficient guarantee of the reliability of the contents of the tape to warrant its admissibility for the truth of its contents. Nothing advanced on the appeal causes me to doubt the implicit assessment of trial counsel.

[14] [14] The appellant’s second attack on the admissibility of out-of-court statements relates to the Crown witness Wade Barkley. Barkley had given a statement to the police in April 1994 which included a confession by the appellant. In his preliminary inquiry testimony, he gave evidence of another confession which the appellant had made to him. At trial, Barkley’s evasive answers led to a ruling that he was an adverse witness which then led to his complete refusal to give evidence and ultimately to the admission of both out-of-court statements for the truth of their contents.

[15] [15] In my view, the admission of Barkley’s preliminary hearing evidence was clearly authorized by s. 715(1) of the Criminal Code which permits the admission of the preliminary hearing testimony of a witness who is present at trial but refuses to give evidence. That evidence, once read in, contained the defence suggestion that Barkley had recently fabricated the appellant’s confession. This in turn rendered admissible Barkley’s prior contested consistent statement to the police in April 1994. Thus, while the trial judge did not follow this exact path in deciding to admit both out-of-court statements, his conclusion to do so does not constitute an error of law.

[16] [16] The appellant’s third attack on the admission of out-of-court statements arises because a number of witnesses were cross-examined on their previous testimony either at the appellant’s preliminary inquiry or at his brother’s trial. The trial judge instructed the jury that these prior statements, having been given under oath, could be used for the truth of their contents.

[17] [17] Since these witnesses testified at trial, their previous testimony was admissible for its truth only if the requisite necessity and reliability were established. No attempt was made at trial to establish either. The trial judge therefore erred in his instruction. However, the error was harmless. The prior testimony put to these witnesses was ultimately adopted by them or was more favourable to the defence than the witness’s trial testimony or was of only marginal significance to the main factual issues before the jury. In light of the appellant’s five confessions, the physical evidence that his father’s gun was the murder weapon and his failure to testify, this error caused no substantial wrong or miscarriage of justice.

[18] [18] In summary, the appellant’s second ground of appeal must also fail.

[19] [19] The appellant’s other grounds of appeal from conviction, which did not require us to hear from the Crown, can be dealt with relatively shortly.

[20] [20] The appellant argues that the trial judge failed to relate the evidence to the theory of the defence or to the material issues.

[21] [21] I disagree. Experienced defence counsel wrote out the defence position for the trial judge which he then put to the jury in his charge. Moreover, the two essential issues before the jury were clear: a) had the Crown proved that the appellant shot Cuerrier on March 23, 1994 or did he die later? and b) since the defence conceded that if this was so the killing was murder, was it also planned and deliberate? It would not have been difficult for the jury to relate the trial judge’s witness by witness review of the evidence to these issues. Indeed, defence counsel (not Mr. Hicks) also used a witness by witness review of the evidence in his own address to the jury.

[22] [22] Next the appellant argues that the trial judge should have instructed the jury to ignore the appellant’s assertion to the arresting officers that he was not present at the deceased’s apartment on March 23. The basis for this argument is that this statement, if false, was equally consistent with his presence there merely to commit robbery and therefore showed no consciousness of guilt of murder. Alternatively, the appellant argues that the trial judge did not ensure that the jury appreciated the possibility of potentially innocent explanations for this conduct.

[23] [23] I cannot agree with this submission. In my view, the appellant made no admission of conduct of lesser culpability at the deceased’s apartment on March 23, 1994. Beyond that, given the evidence that the appellant had planned to murder the deceased and had confessed to this before and after his arrest it was open to the jury to reasonably conclude that, in context, the appellant’s false alibi was more likely attributable to his having committed murder rather than robbery. Thus, there was no reason to remove this evidence from the jury’s consideration. Finally, the instructions concerning this statement were quite sufficient to ensure that the jury would not leap from a conclusion that the appellant made the statement to a finding of guilt. Indeed, the defence raised no objection to the instructions given.

[24] [24] The appellant next argues that the trial judge erred in his definition of reasonable doubt.

[25] [25] This charge preceded R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320. While it therefore did not follow the optimal blueprint laid out in that case, it is not dissimilar to the reasonable doubt instruction approved by the Supreme Court of Canada in R. v. Pan, 2001 SCC 42, [2001] 2 S.C.R. 344. In my view, it cannot be said that the instruction given here set the standard of proof too low. I am fortified in this conclusion by the appellant’s acquittal on the charge of first degree murder despite the significant evidence of planning. This supports the conclusion that the jury required an appropriately high standard of proof in order to convict and could distinguish between first and second degree murder on that basis.

[26] [26] Finally, the appellant argues that the Vetrovec warnings given by the trial judge were inadequate. (Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811) However, each of these were, in my view, sufficient to single out the witnesses concerned for the required special scrutiny and caution. Indeed, various aspects of these warnings were more favourable to the appellant than warranted. Moreover, the trial judge did not err in exercising his discretion against delivering a Vetrovec warning respecting the witness Lalonde who had a history of mental illness. It cannot be said that such a warning is mandatory just because of a witness’s troubled psychological history.

[27] [27] Thus, all the grounds of appeal from conviction must fail.

[28] [28] As to sentence, the appellant was 19 years old at the time of the offence and without a criminal record. However, he was convicted of a brutal second degree murder. Moreover, the evidence clearly showed him to be a very disturbed and dangerous person. Five of the six jurors who recommended a period of parole ineligibility suggested 25 years. In the circumstances, the period of parole ineligibility imposed by the trial judge is neither unfit nor the product of an error in principle.

[29] [29] The appeal conviction must be dismissed. The appeal of the parole ineligibility period must also be dismissed.

Released: August 20, 2002 “DD”

“S.T. Goudge J.A.”

“I agree Doherty J.A.”

“I agree J.C. MacPherson J.A.”