DATE: 20031009
DOCKET: C37930
C38009
COURT OF APPEAL FOR ONTARIO
WEILER, GILLESE and ARMSTRONG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
James Lockyer for the appellant
Respondent/Appellant
- and -
JOHN ERROL McLEOD
Scott Hutchison for the respondent
Appellant/Respondent
Heard: September 22, 2003
On appeal from the conviction imposed by Justice Patricia R. German of the Superior Court of Justice, sitting with a jury, dated December 17, 2001, and on appeal by the Crown from the sentence imposed by Justice German dated March 4, 2002.
WEILER J.A.:
[1] Mr. McLeod was convicted of second degree murder and sentenced to life imprisonment with a parole ineligibility period of ten years. He appeals his conviction and the Crown appeals the period of parole ineligibility.
The conviction appeal
[2] The basis for the conviction appeal is found in the Crown’s address to the jury and in the judge’s charge dealing with absence of motive. Towards the end of the Crown’s closing address to the jury, Crown counsel told the jury:
Ladies and gentlemen, there is no evidence in this case of anyone else having a motive to kill Jenny Figueroa other than John McLeod. There may be some evidence of others assisting Mr. McLeod in some fashion, but the evidence goes no further than that.
Her Honour will tell you that your duty is to decide this case on the evidence before you and only on the evidence before you. Speculation forms no part of your function as jurors. I’d ask you to look closely at the evidence. If you do so, I believe that you will find the indicators of Mr. McLeod’s guilt. In my submission, they appear throughout the evidence.
[3] Towards the end of her charge to the jury, the trial judge reiterated the Crown’s position as follows:
Now, the position of the Crown is that you must decide based on the evidence, that you may not speculate but that there is no evidence that anyone else killed Jenny.
[4] On behalf of Mr. McLeod, Mr. Lockyer submits that the effect of the Crown’s address was to shift the onus to the appellant to show that someone else committed the crime and that the trial judge’s instruction approbated the Crown’s comments. In support of this submission, he relies on the case of R. v. Parsons, [1996] N.J. No. 317 (N.S. C.A.). In that case Crown counsel told the jury in part, “…if Greg Parsons didn’t cause his mother’s death who did? Not meaning to suggest that another suspect have to be brought up and presented to you by the defence but in a common sense, logical kind of way, look at the evidence.” Crown counsel then went through a list of people to whom the police had spoken and said the deceased had no enemies and no one in her life about whom she expressed any kind of fear except Gregory Parsons. The court held the jury may have thought that it had to answer the question posed by Crown counsel in his closing submissions before it could acquit the accused. The jury’s attention ought not to have been diverted from the real question before it, namely whether the Crown had proven the guilt of the accused beyond a reasonable doubt. The trial judge ought to have disabused the jury of the notion that they could somehow conclude that the accused was guilty because it may not appear from the evidence that some other person might have committed the crime.
[5] That is not the situation here. The Crown was responding to the suggestion raised by the defence that other persons could have been responsible for the murder of the deceased. While other persons may have been involved in making phone calls to relatives of the deceased to advise them that his girlfriend Jenny was dead, there was no evidence that these persons had a motive to kill her. Crown counsel’s comment in his closing address respecting motive and the comment by the trial judge in her charge to the jury were accurate comments concerning the evidence that did not have the effect of shifting the onus of proof to the accused. The evidence at trial was that the accused was a very possessive and jealous person, that his girlfriend was going to leave him to go to live in the United States and he therefore had a motive to kill her.
[6] We also note that there was no objection to the charge at the time by experienced defence counsel on the basis now raised on this appeal. In fact, after raising some minor evidentiary points in submissions on the charge, defence counsel concluded, “But I believe those are relatively minor points. Generally, in my view, the charge was quite balanced and fair.”
[7] We would dismiss this ground of appeal.
[8] A further ground of appeal is based on the judge’s charge concerning reasonable doubt. After giving a charge in compliance with R. v. Lifchus, the trial judge added:
If, at the end of the case, based on all of the evidence or lack of evidence, you are not sure that Mr. McLeod committed the offence, you should find him not guilty of it.
[9] This last sentence is not in Lifchus. Mr. Lockyer submits that when we talk in everyday language of not being sure of something we are talking in terms of probabilities. There was no Starr direction to the jury in terms of how high above the balance of probabilities the onus of proof is. Combined with the trial judge’s other comment discussed above, Mr. Lockyer submits that the burden of proof could have been impacted. We disagree. Immediately preceding the impugned passage the trial judge said:
If, at the end of the case, after considering all of the evidence you are sure that Mr. McLeod committed the offence, you should find Mr. McLeod guilty of it since you would have been satisfied of his guilt of that offence beyond a reasonable doubt.
[10] Inasmuch as the trial judge tied the word “sure” to proof beyond a reasonable doubt immediately before the impugned passage, we are of the opinion that the jury would not have been under any misapprehension as to the level of proof required.
[11] We would dismiss the appeal from conviction.
The sentence appeal from the period of parole ineligibility
[12] Section 718.2 (a) (ii) provides:
A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common‑law partner or child.
[13] The trial judge did not increase the minimum period of parole ineligibility but left it at ten years. The Crown submits that the trial judge erred in principle in not increasing the period of parole ineligibility to 12 to 15 years because the victim was the girlfriend of Mr. McLeod. In R. v. McKnight (1999), 135 C.C.C. (3d) 41, Laskin J.A., for the majority, stated at para. 48:
No two cases are the same but similar cases from this province of brutal second-degree murders of an unarmed wife or girlfriend suggest a range of 12 to 15 years.
[14] The evidence disclosed that the victim was stabbed four times in her neck and twice in the left upper arm. There were also thirteen defensive wounds found on her hand. Mr. McLeod then placed her body, which had been cut up, in a suitcase he owned and left it by the side of the Highway 401. About a week later, the victim’s cousin received a phone call from a man who said: “Jenny’s dead. You can find her body on the side of the 401 going to Montreal. She tried to flee to the United States. There are multiple stab wounds.” The man then hung up. The cousin received another call with the same information. When she asked the caller how he knew this information, he told her that someone had asked him to call. A trace of one of the telephone calls indicated that the call came from a residential account in the name of Neil Johnston and that Mr. McLeod had telephoned this same residential number some thirty-one times. A wiretap of Mr. McLeod’s telephone conversations indicated that in one conversation he said that the “girl” was missing and that they had not found her yet. In a further conversation he talked about how deep an item has to be placed for it not to be found and, in the same conversation, stated that he had a picture in the room of the case that “he threw out yonder.” About ten days after the murder, the deceased’s body was found by a man driving along the shoulder of highway 401 looking for survey stakes when he saw a suitcase in the grass. He and his associate noticed an odour from it and called Crime Stoppers. This led to the Ontario Provincial Police attending at the scene.
[15] In her reasons for sentence, the trial judge described the relationship between the victim and Mr. McLeod as a relationship of boyfriend-girlfriend and as being a relationship of intimacy. Then she said:
I am satisfied and find the following facts:
That Mr. McLeod and Jenny had a boyfriend-girlfriend relationship but were not living together, were not married, nor were they common law spouses.
While murder is always brutal, I find there was no gratuitous violence in this case.
There were indignities to Jenny’s body after her death and that she was placed in a suitcase and left at the side of the road, but there was a telephone call which I am satisfied beyond a reasonable doubt was either made by Mr. McLeod or he was instrumental in it being made. Whoever made it certainly had information about Jenny’s family, their names, their telephone numbers, and the whereabouts of her body and there was evidenced that connected Mr. McLeod to New York close to the location where the calls came from. This telephone call at least allowed her family to learn she was dead and where her body was, and showed some compassion for their suffering.
Mr. McLeod is still proclaiming his innocence, so it is impossible for me to consider rehabilitation.
Without in any way intending to suggest this was less than a tragedy, I do not find that there were aggravating factors such that the time when Mr. McLeod can apply for parole should be extended past ten years. At the time, it will be for the Parole Board to decide on the evidence available to them whether he can be released into the community.
[16] In our opinion, the reasons of the trial judge disclose two errors in principle.
[17] The first is that the trial judge appears to have been of the opinion that a distinction should be made because Mr. McLeod and the deceased were boyfriend and girlfriend rather than spouses or living together. Although section 718.2(a)(ii) speaks of spouses and does not mention a boyfriend‑girlfriend relationship the same principle is applicable. See R. v. McMaster (1998), 122 C.C.C. (3d) 371 (Ont. C.A.) and R. v. Barry, [1993] O.J. #3955 (Ont. C.A.), where the victim murdered in each case was the girlfriend of the appellant and the period of parole ineligibility was 12 years. In those cases the court was also dealing with a murder where the victim is involved in a relationship of trust and intimacy between the victim and the attacker.
[18] The second error in principle is the trial judge’s finding that the phone calls to members of the deceased’s family allowed them to learn where her body was and showed some compassion thereby apparently offsetting the aggravating fact that Mr. McLeod committed indignities to her body. Beyond indicating that the body could be found along the 401 in the direction towards Montreal, the phone calls did not give the location of the body. The phone calls did not allow the members of the deceased’s family to learn where her body was. We do not see the calls as acts of compassion that could offset such an aggravating factor.
[19] The trial judge erred in minimizing the aggravating features on sentence. It therefore falls to us to impose an appropriate period of parole ineligibility. The appellant has no criminal record; was employed; and the information from the institution is that he is a model inmate. He is mature, not given to substance abuse and does not have a mental disorder. Taking into account all of the aggravating and mitigating features, in our opinion the appropriate period of parole ineligibility is 12 years. Accordingly, we would grant leave to the Crown to appeal the period of parole ineligibility, allow the appeal and increase the period of parole ineligibility to 12 years.
RELEASED: Oct. 9, 2003
“Karen M. Weiler J.A.”
“I agree E. E. Gillese J.A.”
“I agree Robert P. Armstrong J.A.”