DATE: 20031024

DOCKET: C35004

COURT OF APPEAL FOR ONTARIO

CRONK, GILLESE and ARMSTRONG JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Leslie Maunder,

for the appellant

Respondent

• and -

WAYNE BERNARD JONES

Kenneth L. Campbell,

for the respondent

Appellant

Heard: February 19, 2003

On appeal from a conviction entered on November 29, 1999 by Justice N.M. Karam of the Superior Court of Justice, sitting with a jury.

ARMSTRONG J.A.:

[1] The appellant appeals from his conviction for first-degree murder on November 29, 1999. The appellant was tried before Justice N.M. Karam of the Superior Court of Justice, sitting with a jury in North Bay.

THE BACKGROUND

[2] On November 1, 1996, the appellant travelled by train from Toronto with his girlfriend, Robin Graves, to Timmins, Ontario. Graves had recently moved from Timmins to Brampton. The appellant lived in Brampton with his common law wife. The purpose of the trip to Timmins was to move some furniture and other property of Graves from storage in Timmins to her residence in Brampton.

[3] Soon after they arrived in Timmins in the late evening, the appellant and Graves went to the Windsor Tavern in downtown Timmins. The victim of the murder, Raymond Collin, was sitting at a nearby table.

[4] Collin had just recently arrived at the Windsor Tavern with an acquaintance, Pierre Castonguay. Earlier on November 1, 1996, Collin had cashed his pay cheque for $600.00. Collin was in search of a prostitute. He had been drinking since the afternoon of November 1st and was buying drinks for other people in the bar and made no secret that he was carrying a large “wad” of cash.

[5] Collin and Castonguay were joined at the table by Castonguay’s girlfriend and Donald Lachapelle who was an acquaintance of Castonguay. Castonguay had earlier told Lachapelle that Collin was looking for sex and asked for his help in finding a prostitute. Both Castonguay and Lachapelle noticed Graves sitting at the nearby table.

[6] As a result of eye contact between Lachapelle and Graves, Lachapelle got up from the table and went to an alcove which was close by and was joined by the appellant and Graves. Graves introduced the appellant as “a buddy of mine”. It was Lachapelle’s evidence that Graves asked him if Collin was looking for a woman and how much money Collin had with him. Lachapelle said he did not know how much money Collin had but agreed to try and find out and they then returned to their respective tables.

[7] A few minutes later, Graves and Lachapelle spoke again in the alcove in the presence of the appellant. Graves wanted to know if Collin was armed and whether he had any money. According to Lachapelle, Graves said, “well, we’re going to kick him out of the bar and we’re going to do him.” The appellant then said, “yes, we’re gonna take him outta the bar and we’re gonna fucking do him.” Lachapelle testified that the appellant then opened his jacket and exhibited a dark coloured gun in a holster.

[8] Lachapelle testified that Graves told the appellant to leave which he did and went outside. Graves then asked Lachapelle if he wanted to be involved. Lachapelle declined and told Graves that she was in good hands with “Buddy”. Apparently, Graves responded, “yes, you know, you’re right … Buddy’s .22 is pretty fuckin’ reliable.”

[9] Lachapelle testified that Graves then became involved in a conversation with Collin for 5 or 10 minutes and then they left the bar together.

[10] Three days later on November 5, 1996, Collin was found dead in his pickup truck, which was parked in the lot of a laundry building in downtown Timmins in close proximity to the police station. The deceased was positioned in the passenger seat. There were five bullet holes in the left side of his head and face. The forensic evidence established that he had been shot with a .22 calibre revolver from either the driver’s side open window or the driver’s seat of the car.

[11] On the morning following the events in the Windsor Tavern, November 2, 1996, the appellant and Graves rented a Ryder truck for which they paid $669.30 in cash in addition to a $100 deposit. On the way to pick up the truck, they told a cab driver they were going to Sudbury.

[12] Lourdes de Guzman, the common law wife of the appellant, was called as a Crown witness. She was declared an adverse witness and was cross-examined by the Crown. She told the court that she received a telephone call from the appellant on the evening of November 2, 1996. During the telephone call, she asked the appellant if he was with Graves to which he responded by saying inter alia that she was a fucking bitch and that she had “just popped a guy” for $350. According to de Guzman, the appellant offered the following details:

(i) The deceased was a bushman or mountain man who owned a pickup truck;

(ii) Graves had offered the deceased sex for $100; and

(iii) The appellant was not present but Graves told him that she had parked the truck at an apartment complex and shot the victim in the head five times.

[13] De Guzman had testified to the same conversation with the appellant at the preliminary inquiry with one important difference. At the preliminary inquiry, she said that the appellant told her that he had shot the victim. The evidence of de Guzman at the preliminary inquiry was admitted at the trial for the truth of its contents. Her explanation for naming the appellant as the killer, in her original statement to the police, was that she did it out of jealousy and anger at the appellant’s affair with Graves. Also when she originally told the police that the appellant had informed her that he was the killer, she was in police custody on criminal charges and her lawyer made a deal for her release from custody in return for her statement. It was her view that, by naming the appellant, she would be released. She was released on bail two days after she gave her statement.

[14] About six weeks after the killing, on December 13, 1996, with the assistance of a tracking and listening device installed in Graves’ car, the police observed the appellant and Graves disposing of a plastic bag in a corn field north of Brampton. When the plastic bag was retrieved by the police, its contents included a gun, a “Saturday night special”, which could fire five rounds in quick succession. The plastic bag also contained .22 calibre Winchester bullets and rubber latex gloves. The firearms expert, who testified at trial, was unable to say that the gun was the gun that had killed Raymond Collin. The bullets that killed Collin were manufactured by Winchester.

[15] Three days after the appellant and Graves were observed disposing of the plastic bag in the cornfield, they were arrested in an apartment in Brampton. When he was arrested, the appellant was wearing a pair of size 8 women’s jeans. The jeans contained a bloodstain which was tested for DNA. The DNA in the bloodstain matched the DNA of the deceased. The jeans also fit Graves. There were other women’s size 8 jeans in the apartment as well as men’s jeans.

[16] The Crown led evidence concerning the appellant’s connection with hand guns:

(i) In the summer of 1996, Graves told an associate at her exotic dancing club that the appellant could supply Graves with a gun for the purpose of becoming a professional hit woman. Both women determined that such an idea was crazy;

(ii) In August 1996, the appellant purchased a .22 calibre handgun in Brampton; and

(iii) In October 1996, the appellant showed a gun to an acquaintance, Cameron Booth, in a parking lot. It was nighttime and the lighting was poor. However, Booth testified that the gun was black with a brown handle. The appellant told Booth that the gun was for protection and that he also had two other guns which were fitted with silencers.

THE THEORY OF THE CROWN

[17] The Crown alleged that the appellant, assisted by Robin Graves, robbed Raymond Collin and shot and killed him. The Crown’s case was based upon the following:

(i) the appellant’s connection with guns and in particular the evidence that he had a gun which fit the forensic description of the murder weapon;

(ii) the evidence of the appellant’s common-law wife that he told her that either he or Graves shot the deceased;

(iii) the evidence of the blood stain on the jeans that the appellant was wearing at the time of his arrest which provided a DNA match for the blood of the deceased; and

(iv) the evidence of Lachapelle of his discussions with the appellant and Graves in the Windsor Tavern before the murder.

THE THEORY OF THE DEFENCE

[18] The theory of the defence was that Lachapelle and Graves were responsible for and participated in the robbery and killing of the deceased.

GROUNDS OF APPEAL

[19] Counsel for the appellant made the following submissions:

(i) the trial judge erred in putting the theory of the defence to the jury;

(ii) the trial judge erred in admitting the “Booth” gun evidence and in his instructions to the jury concerning the use it could make of the Booth evidence and the Graves’ statements relating the appellant to guns;

(iii) the trial judge erred in failing to tell the jury that the evidence of after the fact conduct was incapable of assisting it in distinguishing the possible verdicts of manslaughter, second-degree murder and first-degree murder;

(iv) the trial judge erred in failing to permit counsel for the appellant to cross-examine Castonguay and Lachapelle concerning polygraph testing;

(v) the trial judge erred in his charge to the jury on first-degree murder by failing to properly distinguish the evidence of planning and deliberation to commit murder and the evidence of planning and deliberation to commit robbery; and

(vi) the verdict of first-degree murder was unreasonable.

I will deal with each of these submissions in the order in which they were made by the appellant.

(i) The trial judge erred in putting the theory of the defence to the jury

[20] Counsel for the appellant submitted that there was evidence before the court upon which the jury could conclude that Lachapelle and Graves robbed and killed Collin. Counsel for the appellant relied upon the following evidence in support of this submission:

(i) Lachapelle was in the Windsor Tavern with the deceased on the night of November 1, 1996 and was one of the last people to see him alive;

(ii) Lachapelle was aware that the deceased was carrying a lot of money that night, and apparently discussed with Graves that the deceased was looking for a prostitute;

(iii) despite Lachapelle’s denial at trial, there was evidence that he and Graves knew each other from before the evening of November 1, 1996;

(iv) despite Lachapelle’s denial, there was evidence that he knew that the deceased was killed by five bullets to the head very soon after the killing and before this information was available to the public;

(v) Lachapelle at first avoided the police and then lied to them, denying any involvement; and

(vi) Lachapelle was working at the time as a drug trafficker, fencer of stolen property, and debt enforcer out of the Windsor Tavern.

[21] Central to the appellant’s argument was that Lachapelle was an unsavoury witness with a violent disposition and a lengthy criminal record, who had lied to the police, and ought not to be believed.

[22] Counsel for the appellant contended that the trial judge’s summary of the defence position was not only inadequate but that it diminished a viable defence that Lachapelle participated in the robbery and murder of the deceased.

[23] In particular, the appellant was critical of the following summation by the trial judge:

Mr. Derstine’s position is that almost all of the Crown evidence is equally consistent with the innocence of Wayne Jones or just as incriminating against others such as Ms. Graves and Mr. Lachapelle as it is against Mr. Jones. Other people in the bar, such as Donald Lachapelle and Pierre Castonguay, had the same opportunity to commit the murder after Mr. Collin left the bar … He asks you to reject the evidence of Donald Lachapelle. His criminal past and history of lying make his testimony completely unreliable … He points to the fact that, as a matter of law, it is unnecessary that you reject the evidence of those Crown witnesses as long as you have a reasonable doubt as to the guilt of the accused in which case you must find Wayne Jones not guilty.

[24] The appellant submitted that the above extract from the jury charge “reduced the defence to a negative one of asserting that Lachapelle was unreliable, and the Crown had failed to meet their [sic] burden.” The appellant argued that the trial judge had an obligation to tell the jury that if they believed that Lachapelle was responsible, or had a reasonable doubt about it, they must acquit.

[25] Counsel for the appellant also asserted that the defence position was diminished by a weak Vetrovec warning. See R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811. After telling the jury to proceed with the “utmost care and caution” in respect to Lachapelle’s evidence, the trial judge instructed the jury as follows:

He has an extensive criminal record which I have reviewed with you. His criminal record contains crimes of dishonesty. You have heard details of dishonest conduct involving his mother. He acknowledges that he has committed many other criminal offences such as drug trafficking and extortion which are not reflected on his record. You are entitled to take these matters into consideration when assessing his truthfulness.

[26] Counsel for the appellant complained that the trial judge failed to emphasize that Lachapelle had lied to the police and was an early suspect with a motive to divert attention from himself in respect to the murder.

[27] In my view, the trial judge’s charge adequately presented the defence theory that Lachapelle participated in the robbery and killing with Graves. The following extracts make the point:

Mr. Derstine’s position is that the testimony of Mr. Lachapelle should not be believed, that Mr. Lachapelle is a violent criminal who has, over the course of this investigation, made many false statements that are admitted lies. He was short of money that night and, on re-entering the bar, made no effort to warn Mr. Collin because he was a participant with Ms. Graves, and that in fact both Mr. Lachapelle and Ms. Graves had the motive and the opportunity to kill Mr. Collin.

Mr. Derstine’s position is that almost all of the Crown’s evidence is equally consistent with the innocence of Wayne Jones or just as incriminating against others such as Ms. Graves and Mr. Lachapelle as it is against Mr. Jones. Other people in the bar such as Donald Lachapelle and Pierre Castonguay had the same opportunity to commit the murder after Mr. Collin left the bar.

[28] In regard to Lachapelle as a witness, the trial judge referred to a number of factors which called into question his credibility, including:

(i) his extensive criminal record which involved crimes of dishonesty;

(ii) a description of Lachapelle as a “disreputable or unsavoury” individual; and

(iii) his lies to the police and prior inconsistent statements.

[29] The trial judge clearly instructed the jury that there was “good reason” to consider Lachapelle’s testimony with “the utmost care and caution”. In my view, the Vetrovec warning was more than sufficient in the circumstances of this case. The jury was left in no doubt as to how they should proceed in the assessment of Lachapelle’s evidence.

(ii) The trial judge erred in admitting the “Booth” gun evidence and in his instructions to the jury concerning the use it could make of the Booth evidence and the Graves’ statements relating the appellant to guns

[30] At the trial, counsel for the appellant objected to the admissibility of the evidence of Cameron Booth that the appellant had showed him a handgun and told him that he had two others with silencers. The appellant submitted that the Booth evidence should have been edited by the trial judge by deleting the reference to the two other guns with silencers. The basis of his objection was that the evidence did no more than demonstrate that the appellant had a propensity for the illegal use of guns. The trial judge concluded that the probative value of the evidence outweighed its potential prejudice. I agree with the trial judge.

[31] Counsel for the appellant submitted that the Booth evidence should have been subject to a limiting instruction to the jury. The appellant argued that the following partial limiting instruction given by the trial judge was inadequate:

There is evidence from Cameron Booth that he was shown a handgun … and reference was made at that time by Mr. Jones to two other hand guns with silencers that he owned. Unless you are satisfied that the gun seen by Mr. Booth was the gun used to kill Mr. Collin, that evidence is of no relevance to your considerations. The mere possession of a hand gun, or three hand guns for that matter, does not establish that the person in possession is a person who might use it as a weapon. You are not to conclude, if you accept Mr. Booth’s evidence of what Mr. Jones is said to have said to him, that merely because Mr. Jones was in possession of a hand gun that he is the type of person who might commit a crime with it.

In my opinion, the above instruction was adequate.

[32] The appellant took issue to a later reference in the charge to the evidence that the appellant could get Graves a gun so that she could become a hit woman. The trial judge told the jury that it “is some of the evidence that you may wish to consider in determining whether you are satisfied beyond a reasonable doubt that the accused Wayne Jones was the person who shot Raymond Collin”. Counsel on the appeal submitted that the trial judge’s instruction “encouraged the jury to use the evidence as propensity evidence against the appellant.” Counsel also submitted that the hit woman evidence was double hearsay against the appellant and that the jury should have been told that it had a limited use.

[33] In my view, the limiting instruction given by the trial judge (referred to in paragraph 31 above) was sufficient. It clearly told the jury that they were not to use the gun evidence as propensity evidence. While it may have been better if the trial judge had specifically reiterated the limiting instruction, given in respect of the Booth evidence, when referring to the “hit woman” evidence, it is worth noting that there was no defence objection at trial on his failure to do so. I would not give effect to this ground of appeal.

[34] Counsel for the appellant also took issue with the trial judge’s failure to limit the use they could make of Graves’ statement to Lachapelle that “Buddy’s .22 is pretty fuckin’ reliable.” Counsel argued that this statement was simply part of the narrative and Graves was doing no more than expressing her own thoughts and the judge should have so instructed the jury. The jury should also have been told it was ambiguous hearsay evidence in respect to the appellant. The effect of a failure to provide such a limiting instruction was that the jury was left with prejudicial propensity evidence. Again, given the general limiting instruction regarding propensity which the trial judge gave in connection with the Booth evidence concerning guns, I am not persuaded that the trial judge erred in this regard.

(iii) The jury charge on after the fact conduct

[35] The trial judge told the jury that the evidence of the disposal of the gun, ammunition and latex gloves in the cornfield was introduced to show that the appellant was disposing of the articles for the purpose of evading detection and prosecution. The trial judge explained further that “[t]he Crown relies upon his post-offence conduct to support an inference that Wayne Jones knew that he was criminally responsible for the murder of Raymond Collin.”

[36] Counsel for the appellant at trial objected to the charge because the trial judge failed to instruct the jury that the after the fact conduct could not assist in their determination of whether the appellant was guilty of manslaughter, second-degree murder or first-degree murder. The trial judge declined to re-charge on this issue.

[37] A review of the trial judge’s charge indicates that at no time did he suggest that the after the fact conduct would assist in determining the level of criminal liability of the appellant. The Crown made no such suggestion in his closing address to the jury. Although the trial judge did make reference to the “murder” of the deceased and to the “murder” weapon in this part of his charge, I accept the submission of counsel for the respondent that the use of the word “murder” was simply a synonym for “killing”. I do not believe that the jury would have been misled.

(iv) The failure to permit cross-examination in respect to the polygraph

[38] Pierre Gastonguay gave two statements to the police. He initially agreed, after each statement, to take a polygraph test. However, after taking advice from his lawyer, he refused to do so. According to the police, he asked, “why he should hook himself up to a machine and incriminate himself.”

[39] At trial, counsel for the appellant sought to cross-examine Castonguay on his refusal to take the polygraph test in order to establish that he was a suspect in the case and to ask him why he was afraid of incriminating himself. The trial judge refused to permit this line of cross-examination on the basis inter alia that:

(i) the cross-examination would undermine his right to refuse a polygraph test and would have little probative value; and

(ii) there was no evidentiary basis to suggest that Castonguay was a suspect.

I agree with the conclusion of the trial judge.

[40] Lachapelle also gave two statements. After his first statement, in which he had failed to mention his conversations with Graves and the appellant at the Windsor Tavern, he took a polygraph test and was advised by the police that he had failed. Lachapelle protested angrily that he had told the truth. His second statement, given three months later, was consistent with the evidence he gave at trial. After his second statement, he took a second polygraph test which he was said to have passed.

[41] The appellant’s counsel at trial sought to cross-examine Lachapelle on his video-taped statement in which he aggressively asserted he was telling the truth in his first statement. While defence counsel did not seek to establish that Lachapelle failed the first polygraph test, he submitted that the many references to the polygraph test could not be edited out. He opposed any reference to Lachapelle’s having passed the second polygraph test.

[42] The trial judge ruled that counsel could cross-examine Lachapelle on an edited version of his video-taped statement which had excised from it all references to the polygraph. The trial judge based his reasoning for editing out the polygraph references on the following:

(i) the jury would likely attach undue weight to the failed polygraph test;

(ii) the jury would probably speculate as to why there were no polygraph results with respect to the second statement of Lachapelle; and

(iii) the probative value of the cross-examination of Lachapelle would not be seriously affected by removing the polygraph references from the video statement.

[43] In my view, the trial judge took a pragmatic and reasonable approach to this evidence which is reflected in his ruling.

(v) The charge on first-degree murder

[44] Counsel for the appellant submitted that the trial judge erred in the charge to the jury on first-degree murder because he failed to distinguish evidence of planning and deliberation to commit murder from evidence of planning and deliberation to commit robbery. Counsel argued that the following instructions were deficient:

The Crown must prove beyond a reasonable doubt both that the murder was planned and that it was deliberate before you can return a verdict of first-degree murder. Accordingly, as well as the intentional killing of the deceased, in order to prove first-degree murder, the Crown must satisfy you beyond a reasonable doubt that the murder was planned and deliberate.

You must keep in mind that what is planned must be murder. The important factor, as far as time is concerned, is the time involved in developing the plan, not the time between the developing of the plan and the doing of the act.

[45] A review of the trial judge’s charge on first-degree murder makes it clear that planning and deliberation must relate to the killing of Raymond Collin. I do not believe that the jury would have been confused that the elements of planning and deliberation related to the robbery would suffice to establish the basis for a conviction on first-degree murder. I would not give effect to this ground of appeal.

(vi) The verdict of first-degree murder was unreasonable

[46] Counsel for the appellant submitted that the verdict of first-degree murder was unreasonable in that it was based on the evidence of two unsavoury witnesses, Lachapelle and de Guzman, the common-law wife of the appellant. Counsel for the appellant focused his submission on the evidence relating to planning and deliberation. In particular, he isolated the following evidence:

(i) Lachapelle testified that the appellant reiterated the comment originally made by Robin Graves that they were going to take the deceased outside and “do him”. After saying this the appellant showed Lachapelle a gun in a holster inside his jacket.

(ii) After Graves asked Lachapelle if he would like to be part of “it” and Lachapelle suggested that she had adequate support from the appellant, Graves said “yes, you know, you’re right … Buddy’s .22 is pretty fuckin’ reliable.”

(iii) De Guzman’s evidence that the shooting was “for a lousy $350”.

[47] Counsel for the appellant argued that, if the jury accepted this evidence, at best it was consistent with a planned robbery which happened to end with the killing of the deceased.

[48] In considering whether to set aside a jury verdict as unreasonable under s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, the test that must be applied is whether the verdict is one which “a properly instructed jury, acting judicially, could reasonably have rendered.” See Corbett v. The Queen, 1973 199 (SCC), [1975] 2 S.C.R. 275 at 282 and R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168 at paragraph 23.

[49] Counsel for the respondent submitted that the appellant had a motive to rob the deceased. The appellant had no money or assets and was in debt. The deceased, with a wad of cash of nearly $600 on his person and who was in a state of intoxication, was clearly a vulnerable target. Counsel for the respondent contended that it was open to the jury to conclude that the appellant had decided to rob the deceased and kill him and thereby eliminate any witness to the robbery. In my view such a conclusion was available to the jury based on the evidence of the discussion that took place between the appellant, Graves and Lachapelle in the alcove of the Windsor Tavern and the evidence of the telephone discussion between the appellant and his common-law wife on November 2nd.

[50] I have no difficulty concluding that a properly instructed jury, acting judicially, could reasonably have rendered a verdict of first-degree murder.

DISPOSITION

[51] In the result, I would dismiss the appeal.

RELEASED:

“OCT 24 2003” “Robert P. Armstrong J.A.”

“EAC” “I agree E.A. Cronk J.A.”

“I agree E.E. Gillese J.A.”