DATE: 20030827

DOCKET: C37331

COURT OF APPEAL FOR ONTARIO

LASKIN, MacPHERSON and GILLESE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Eric Lewis for the appellant

Respondent

• and -

STEVEN TODD CRAIG

Grace Choi for the respondent

Appellant

Heard: May 23, 2003

On appeal from the sentence imposed by Justice Harry J. Keenan of the Superior Court of Justice, sitting with a jury, dated December 22, 1998.

LASKIN J.A.:

A. Introduction

[1] The appellant, Steven Craig, was convicted by a jury of manslaughter in the death of his lover. The trial judge sentenced him to ten years’ imprisonment. Craig appeals his sentence. He submits that the trial judge made the following four errors justifying appellate intervention:

1. Although the basis for the jury’s verdict was unclear, the trial judge did not give the appellant the benefit of the doubt;

2. He relied on a statement of the appellant that he had already ruled inadmissible at trial;

3. He failed to take into account several mitigating factors; and

4. He failed to give the appellant any credit for pre‑trial custody.

[2] The Crown acknowledges that the appellant was entitled to credit for seven months’ pre‑trial custody, but submits that otherwise the trial judge did not err and imposed a fit sentence.

B. Agreed Facts About the Offence and the Appellant’s Statement

[3] The appellant and the Crown filed an agreed statement of facts.

[4] The appellant met the victim, James Detzler, while both were serving sentences in the Kingston Penitentiary. In prison they developed a sexual relationship. After Detzler was released they maintained their relationship by sexually explicit correspondence.

[5] On May 6, 1997, the appellant was released on parole. He moved to Toronto and rented a bachelor apartment. On May 28, Detzler visited him in his apartment. By the end of the evening Detzler was dead. The pathologist who performed the post mortem testified that the cause of death was drowning associated with blunt force injury. In the doctor’s opinion, Detzler’s injury could not have been caused by a single punch, but more likely resulted from the sustained application of force.

[6] Two days after Detzler’s death, the appellant went to the office of his lawyer, who got in touch with the police and told them where the body was located. The police picked up the appellant and took him to the police station. At the station the appellant gave three statements.

[7] In his first statement, which was inculpatory, he said that he and Detzler were drinking and that Detzler made sexual advances to him. The appellant rejected the advances and they got into a fight. The appellant felt “pissed off” because Detzler had been “coming on” to him. He “freaked out” and began hitting Detzler with his fists. He kept hitting him for ten or twenty minutes, then he grabbed Detzler’s clothes and purse and threw them into the incinerator.

[8] The appellant said that he left his apartment after locking the door behind him and breaking the key inside the lock. He maintained that when he left Detzler was in the kitchen and conscious, as far as he knew, though he was bruised and in “not very good” condition. The appellant “couldn’t say” how Detzler ended up being found in the bathroom. He said that he told his lawyer he had done something accidentally.

[9] After he gave his first statement the appellant was charged with second degree murder. He was advised of his right to speak to counsel and immediately asked to telephone his lawyer. The police telephoned his lawyer’s office and left a message. However, instead of waiting for the lawyer to return the call, the police took the appellant into a video room and obtained a second, lengthier and even more inculpatory statement. The trial judge later ruled this statement inadmissible on the ground that the appellant had not waived his right to counsel.

[10] In the second statement the appellant said that Detzler had arrived at his apartment between 9:30 and 10:00 p.m. After talking for a while Detzler asked to be handcuffed. The appellant obliged by handcuffing Detzler behind his back. Detzler then wanted to have anal intercourse. The appellant refused and began hitting Detzler because Detzler was “bugging” him and he got “fed up with it”.

[11] For between five and twenty minutes the appellant used his closed fist to hit Detzler on his lower back, on his shoulder blades, around his neck and on the back of his neck. Detzler fell into the bathtub, which had water in it because the appellant was going to soak his blistered feet. The appellant slammed the bathroom door and went to another room of the apartment, leaving Detzler leaning over in the water.

[12] About five minutes later the appellant went back to the bathroom to see if Detzler was all right. He saw that Detzler’s head was further down in the water and that he was not moving. The appellant removed the handcuffs and noticed that Detzler’s arms were limp. He didn’t think of getting him any medical help because he was “pissed off”. However, he felt scared because he thought that he had killed him. He threw Detzler’s clothing down the incinerator and left the apartment, locking the door behind him and breaking the key in the lock so that no one could enter.

[13] The next morning the appellant got rid of the shirt he was wearing during the incident so that it could not be traced. After walking the streets, he “felt [his] conscience following [him] around”, so he went to his lawyer and told him what had happened.

[14] After the appellant gave his second statement he was charged with first degree murder under s. 231(5) of the Criminal Code. The prosecution alleged that he forcibly confined or sexually assaulted Detzler while murdering him.

[15] The appellant then gave a third, brief statement to the police in which he said that on the evening of May 28 he had been drinking four or five beers but was not drunk. He also said that Detzler did not drink or “do drugs.”

[16] At trial, the appellant pleaded not guilty to the charge of first degree murder but guilty to the included offence of manslaughter. The trial judge ruled that the appellant’s first and third statements were admissible, but excluded his second statement. At the end of the Crown’s case the trial judge directed a verdict of acquittal on the first degree murder charge because the prosecution had not presented any evidence that Detzler was either forcibly confined or sexually assaulted during the alleged murder.

[17] The jury was given two competing theories of what occurred. The Crown contended that the appellant strangled or choked Detzler and that he either intended to cause Detzler’s death or intended to cause him bodily harm that he knew was likely to cause his death and was reckless whether death ensued. Under the Crown’s theory the appellant was guilty of second degree murder.

[18] The defence acknowledged that the appellant assaulted Detzler and that the assault had led to his death. The defence contended that Detzler sustained his neck injuries by blows administered before he fell into the bathtub and that, therefore, the killing was not intentional. Under the defence’s theory the appellant was guilty of unlawful act manslaughter. The jury returned a verdict of manslaughter.

[19] In sentencing the appellant to ten years’ imprisonment, the trial judge concluded that “this homicide cannot under any view of the evidence be described as accidental....It is a homicide which is at the higher end of the scale”.

C. Is Appellate Interference With the Sentence Justified?

[20] Despite the deference accorded to sentencing decisions, in my view this court is justified in interfering with the appellant’s sentence, largely for the four reasons he gives. I will discuss them briefly.

(i) Benefit of the doubt when the basis of the jury’s verdict is unclear

[21] The appellant submits that the trial judge erred by failing to apply the principle that a sentencing judge must give an accused the benefit of any doubt about the basis of a jury’s verdict. I agree with this submission.

[22] In R. v. Brown, [1991] 2 S.C.R. 518, the Supreme Court held that a sentencing judge is bound by the express and implied factual implications of a jury’s verdict. Parliament codified the Supreme Court’s holding by enacting s. 724 of the Criminal Code, which states:

724. (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentence proceedings and any facts agreed on by the prosecutor and the offender.

(2) Where the court is composed of a judge and jury, the court

(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,

(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;

(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;

(c) either party may cross‑examine any witness called by the other party;

(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.

[23] Thus, in this case, following s. 724(2)(a), the trial judge had to accept the necessary implication from the jury’s manslaughter verdict that the appellant did not have the specific intent to kill Detzler. He had to sentence him for unlawful act manslaughter, where the unlawful act was the assault.

[24] Beyond the appellant’s assault of Detzler, however, the basis on which the jury arrived at a verdict of manslaughter is unclear. Although s. 724(3) requires disputed facts to be proven before the sentencing judge may rely on them, the Code does not address cases of factual ambiguity such as this one.

[25] In such cases, the accused is entitled to the benefit of any doubt about the basis of the jury’s verdict. This principle was set out by Finlayson J.A. in R. v. Cooney (1995), 98 C.C.C. (3d) 196 at 204 (Ont. C.A.):

My own view is that, consistent with R. v. Gardiner, supra, and the proposition that the normal burden of proof still rests on the Crown when dealing with disputed facts, the sentencing judge is obliged to give to the convicted accused the benefit of the doubt regarding the basis on which he was convicted by the jury.

See also R. v. Poorman (1991), 66 C.C.C. (3d) 82 at 89 (Sask. C.A.).

[26] Although the trial judge is not bound to accept the most lenient view of the facts, or the accused’s characterization of the facts, any doubt about the basis of the verdict must be resolved in the accused’s favour. I am not persuaded that the trial judge applied this principle.

[27] In sentencing the appellant, the trial judge rejected the idea that Detzler’s death was “accidental”. In his words:

On all of the evidence it is clear to me that this homicide cannot under any view of the evidence be described as accidental. The injuries that were suffered by the victim were substantial – very serious injuries caused by the accused. The most significant of those injuries were those to the neck structures which were described as having been caused by a sustained application of pressure to the throat and voice box of the victim consistent with strangulation.

The cause of death was described and was not in any way seriously challenged as death by, in effect, drowning, that is, the ingestion of water consistent with the deceased being alive and having his head put under water.

[28] I am not sure what the trial judge meant by his use of the word “accidental”. He could not have meant that the killing of Detzler was intentional. Yet, in this passage, the trial judge seems to have concluded that the appellant strangled his victim. Although I suppose it is possible the jury convicted the appellant of manslaughter on the basis that he strangled Detzler and put his head underwater but did not intend to kill him, this harsh inference from the evidence was not the only one available to the trial judge. It is also possible that the assault, including the neck injuries consistent with strangulation, caused Detzler to fall into the bathtub, where he later drowned. In this sense, his death could be described – as his defence counsel contended – as “accidental”. Nonetheless, the appellant would still be guilty of manslaughter because the death was objectively foreseeable.

[29] In seemingly rejecting this possible characterization of what occurred the trial judge did not give the appellant the benefit of the doubt about the basis of the jury’s verdict. Had he given the appellant the benefit of the doubt about when Detzler sustained his neck injuries, he likely would not have imposed a sentence at the higher end of the range for manslaughter. The trial judge’s failure to apply the principle in Cooney justifies appellate review.

(ii) Reliance on an inadmissible statement

[30] The trial judge ruled the appellant’s second statement – in which he confessed to handcuffing Detzler – inadmissible because it was obtained in breach of s. 10(b) of the Charter. Having ruled the statement inadmissible at trial, the trial judge was not entitled to rely on the contents of the statement in sentencing the appellant. This much the Crown acknowledges. See s. 724(2)(b) of the Criminal Code; and R. v. Gardiner, [1982] 2 S.C.R. 368.

[31] What the parties disagree about is whether the trial judge did rely on the statement. The appellant says that he did and points to this troubling passage at the beginning of the reasons for sentence:

The jury was deprived of cogent evidence in this case by reason of a ruling made by me for the exclusion of evidence of a statement which had been obtained from the accused in violation of his rights under the Charter of Rights. It was a statement which was voluntary in the classic sense and would otherwise have been part of the evidence before the jury. The jury if they had had that evidence would have had a somewhat larger and somewhat more complete picture of at least what the accused had said about the commission of the offence.

In assessing the penalty that is appropriate in this case I must, of course, be bound by the verdict of the jury and must impose a sentence which is a fit sentence for the offence of manslaughter. I am, however, at liberty to take into account all of the evidence and make my own assessment of the facts of the case and my own view as to what it was that caused the death of the victim.

[32] In support of his submission the appellant emphasizes the juxtaposition of the judge’s statement that “[t]he jury was deprived of cogent evidence in this case by reason of a ruling made by me for the exclusion of... a statement” with his assertion that “I am, however, at liberty to take into account all of the evidence”. The appellant also emphasizes that the evidence of handcuffing could well – in the trial judge’s mind – have justified a sentence for manslaughter at the “higher end of the scale”.

[33] The Crown, however, argues that the trial judge commented on the exclusion of the second statement solely to explain why the jury convicted the appellant of manslaughter instead of second degree murder. The Crown observes that in his reasons for sentence the trial judge did not refer to the handcuffing of Detzler and that he would have done so had he actually relied on the excluded statement.

[34] I do not think that the absence of any reference to the handcuffing in the reasons for sentence adequately answers the appellant’s submission. Other than a brief reference to the pathologist’s evidence and to the seriousness of Detzler’s injuries, the trial judge did not discuss or make findings on how the death occurred. Instead, he emphasized how little was known:

Whatever it was that really transpired that night we may never know. Clearly what Mr. Craig told to the police was only part of the story. We have not heard the exact details as to what it was that caused the assault on Mr. Detzler which eventually ended in his death.

It thus seems to me that the trial judge’s reasons are unclear about whether he used the excluded statement to sentence the appellant. Both the appellant and this court are left to wonder whether he improperly took the contents of this statement into account.

[35] This lack of clarity in the trial judge’s reasons about whether he used such an important piece of evidence justifies appellate review of the sentence. As Binnie J. observed in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 46:

These cases make it clear, I think, that the duty to give reasons, where it exists, arises out of the circumstances of a particular case. Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention [emphasis added].

I therefore hold that this lack of clarity about the use of the second statement is another justification for reviewing the fitness of the sentence.

(iii) Mitigating factors not considered

[36] The trial judge did take into account the appellant’s plea of guilty to manslaughter. In his reasons he said, “The accused has in some measure accepted responsibility and offered a plea of guilty to manslaughter”. But the trial judge did not take into account another important mitigating consideration: the appellant turned himself in to the police and confessed to his crime. Where, as in this case, an accused implicates himself to help solve a crime he spares the public the cost of an investigation and shows that he has accepted some responsibility for his actions. He is entitled to some credit for having done so.

(iv) Credit for pre‑trial custody

[37] Before he was released on parole in early May 1997, the appellant had been serving a series of consecutive sentences for robbery, break and enter and theft, possession of a weapon and uttering threats. When he was arrested and charged with Detzler’s murder his parole was revoked. He then spent nineteen months in custody until he was sentenced for manslaughter on December 22, 1998. The trial judge denied him any credit for pre‑trial custody on the manslaughter conviction, instead holding that the entire nineteen months should be attributed to the previous sentences for which his parole had been revoked. In this court, the appellant submits and the Crown accepts that he is entitled to credit for seven months’ pre‑trial custody on the manslaughter offence.

D. What is a fit sentence?

[38] Once this court is justified in interfering with the sentence imposed by the trial judge, it is entitled to impose a sentence that it considers fit. See R. v. Rezaie (1996), 31 O.R. (3d) 713 (C.A.).

[39] I would reduce the ten‑year sentence. Giving the appellant the benefit of the doubt, I assume that the trial judge derived the lengthy sentence in part from excluded evidence and an unnecessarily harsh interpretation of the facts underlying the jury’s verdict.

[40] Several mitigating factors also take this case out of the high‑end range of sentences for manslaughter. They include:

• The appellant turned himself in, confessed to the assault and, at least in some measure, cooperated with the police.
• He then pleaded guilty to manslaughter, showing both remorse and responsibility for what occurred.
• Dr. Orchard observed that “the subject’s own insight into his problems and the need for treatment is greatly enhanced by his self‑criticism over causing a death”.
• The appellant has had an unfortunate upbringing characterized by multiple placements in foster and group homes. Yet he is only thirty-one years of age and still has some prospects of rehabilitating himself.

[41] Although I would reduce the sentence given by the trial judge, I acknowledge the several aggravating factors that warrant a substantial penitentiary term:

• The appellant attacked a person with whom he had had an intimate sexual relationship.
• He had been on parole for less than a month when he committed the offence.
• He has a lengthy criminal record consisting of sixteen previous convictions, including several for offences of violence.
• Dr. Orchard, a psychiatrist who gave a written assessment of the appellant, said that the appellant had an “explosive personality” that required treatment.

[42] Balancing these aggravating and mitigating factors, and giving credit for the seven months of pre‑trial custody on the usual two for one basis, I consider a fit sentence to be seven years’ imprisonment.

E. Disposition

[43] I would grant leave to appeal the sentence, allow the appeal and reduce the appellant’s sentence from ten years’ to seven years’ imprisonment.

RELEASED: August 27, 2003

“JL”

“John Laskin J.A.”

“I agree J.C. MacPherson J.A.”

“I agree E.E. Gillese J.A.”