DATE: 20030926

DOCKET: C34886

COURT OF APPEAL FOR ONTARIO

CATZMAN, ABELLA and GILLESE JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

LEE BAPTISTE

Appellant

Alex Alvaro for the respondent

Frank Addario and Mara Greene for the appellant

Heard: September 11, 2003

On appeal from the conviction and sentence imposed by Justice Colin D. A. McKinnon of the Superior Court of Justice, sitting with a jury, dated March 3, 2000 and April 25, 2000.

GILLESE J.A.:

[1] Lee Baptiste, the appellant, and Marc Landriault were charged with two counts of second degree murder and one count of robbery in relation to the deaths of Neil Nadeau and Rose Bannerman. Mr. Landriault pled guilty to two counts of second-degree murder and was sentenced to life imprisonment without eligibility for parole for 12 years.

[2] The appellant was tried by judge and jury. At the conclusion of the Crown’s case, the trial judge directed verdicts of acquittal on the charges of second-degree murder and ordered that the trial continue on the included charges of manslaughter and robbery.

[3] The jury returned verdicts of guilty on all counts. The appellant was sentenced to 15 years imprisonment with five years credit for pre-trial custody.

[4] The appellant appeals from both conviction and sentence.

[5] For the reasons that follow, I would dismiss the appeal in its entirety.

OVERVIEW

[6] This section gives an overview of the facts. More detailed facts are contained in the relevant parts of the analysis, below.

[7] The appellant, Marc Landriault and Neil Nadeau were all established members of the Vanier criminal culture. They were well acquainted with one another.

[8] Landriault murdered Nadeau and Nadeau’s girlfriend, Rose Bannerman, on November 28, 1997. It was the Crown’s theory that the appellant went to Nadeau’s apartment, with Landriault, with the intention of taking drugs from Nadeau through force or the threat of force.

[9] The Crown’s key witness was Wayne Leard. Leard met the appellant while in custody awaiting trial. Leard had no prior familiarity with the appellant or the other persons or places involved in these offences. He recounted, in detail, what the appellant confided to him about his involvement in the offences. Virtually all of Leard’s evidence was corroborated by other evidence, including the evidence of John Cannon and Kelly Laverge, the appellant’s friends.

[10] Evidence of discreditable conduct on the part of the appellant, witnesses, and victims, came out at trial.

[11] Relying on Landriault’s evidence that he went alone to Nadeau’s apartment and killed the victims, the defence position at trial was that the appellant was not at Nadeau’s apartment when the murders took place and that the appellant did not participate in the robbery and murders.

[12] Landriault was a good friend of the appellant’s. He had an extensive criminal record and described himself as a “career criminal” with an admitted hostility toward law enforcement.

[13] Although there was no evidence that the appellant knew that Bannerman would be present at Nadeau’s apartment, the Crown’s position was that it was objectively foreseeable that Nadeau might not be alone and that bodily harm to another person could come about as a consequence of the robbery that was being undertaken. The appellant does not take issue with that theory of liability.

THE ISSUES IN THE CONVICTION APPEAL

[14] At the hearing of the appeal, the appellant pursued 3 issues in respect of the conviction appeal.

(1) Did the trial judge err in failing to provide a limiting instruction on the evidence of the appellant’s prior discreditable conduct?

(2) Did the trial judge err in failing to put to the jury the defence that the appellant attended at the deceased’s residence to commit a theft? and

(3) Did the trial judge misdirect the jury in respect of the appellant’s post-offence conduct?

ANALYSIS

ISSUE #1—LIMITING INSTRUCTION

[15] Counsel for the appellant submits that the trial judge err in failing to provide a limiting instruction on the evidence of the appellant’s prior discreditable conduct.

[16] That evidence consisted of the following. (1) The appellant assaulted Nadeau two months before his death. (2) During examination-in-chief by defence counsel, Landriault stated that he met the appellant while he was serving a 4½ year sentence at Joyceville. No further mention was made of this fact. (3) As part of the background relationship between the appellant and Cannon, it came out that the appellant had information relevant to a murder prosecution in Toronto but refused to give it to the police without receiving some personal benefit and that the appellant had threatened Cannon. (4) Leard testified that the appellant told him that he (the appellant) had assaulted Landriault with a machete after learning that Landriault told Michelle Walsh about the murders. (5) The appellant used cocaine, ran a crack house and had a long involvement in the drug culture.

[17] The appellant did not testify and his criminal record was not adduced. However, the jury may have reasonably concluded that he was involved in criminal activity.

[18] The trial judge instructed the jury on the relevance of criminal records to assessing the credibility of witnesses. He told them that past criminal convictions were relevant to credibility and to the weight to be attributed to a witness’s evidence.

[19] As the trial judge ruled and the appellant has conceded, evidence of the appellant’s earlier beating of Nadeau was admissible.

[20] The trial judge directed the jury that evidence of the appellant’s prior assault on Nadeau could be used to assist them in determining whether the appellant was prepared to use violence or threats of violence when attempting to steal Nadeau’s drugs. The evidence was relevant to the issues of motive, intent and animus. It showed a demonstrated willingness on the part of the appellant to use violence against a particular person, namely, Nadeau. It provided necessary context and background on the relationship between the appellant and Nadeau.

[21] All of the other evidence of discreditable conduct was admissible as an essential part of the narrative.[^1]

[22] Defence counsel was asked for input into the charge and did not suggest that a general limiting instruction should be given in relation to items of evidence that evinced bad character. At the conclusion of the charge, defence counsel made no objection on this basis.

[23] It is clear that a trial judge has an obligation to instruct juries properly on the use of prior discreditable conduct. See R. v. B.(F.F.) (1993), 1993 167 (SCC), 79 C.C.C. (3d) 112 (S.C.C.).

[24] The failure to provide such a limiting instruction raises a presumption which the Crown has a burden to displace. See R. v. N.(R.K.) (1997), 1997 1271 (ON CA), 114 C.C.C. (3d) 40 (Ont. C.A.).

[25] In this case, I am satisfied that the Crown has met that burden.

[26] The evidence was properly admitted as part of the narrative. It furnished necessary background to the events and its relevance is readily apparent.

[27] No objection to the charge was taken on this basis.

[28] The trial judge gave a strict limiting instruction in relation to the evidence of the appellant’s prior attack on Nadeau. He cautioned the jury not to punish the appellant for prior misconduct.

[29] Included in the instruction was the following generalised language cautioning the jury against propensity reasoning:

When examining the evidence you must not conclude that Lee Baptiste is a criminal sort of person and that, therefore, he probably committed the offences charged in the indictment. The mere fact that there is evidence that in the past Mr. Baptiste may have committed an act similar to the offence charged is not evidence that Mr. Baptiste committed the offence charged in this case.

[30] That language, in my view, made it clear to the jury that they could not reason that the appellant was a person of criminal disposition and therefore likely to have committed the offences.

[31] The details about the appellant’s personal circumstances were not exceptional or remarkable in the context of the evidence as a whole. It would have been clear to the jury that the appellant’s involvement in the drug culture – including much of the prior discreditable conduct – was shared by the other witnesses and the victims. In that sense, the appellant’s personal circumstances did not negatively distinguish the appellant from the other witnesses.

[32] The appellant’s other discreditable conduct was less serious than the conduct charged.

[33] Finally, in my view, this is a case in which the evidence against the appellant was overwhelming. I reject the appellant’s submission that Landriault’s testimony that the appellant was not at Nadeau’s apartment means the case against the appellant could not have been overwhelming. Leard’s evidence, which the jury must have accepted, established an overwhelming case of guilt. As noted previously, Leard’s evidence was corroborated in virtually all aspects.

[34] Accordingly, I would not give effect to this ground of appeal.

ISSUE #2 – THE DEFENCE OF THEFT

[35] The appellant argues that the trial judge erred in failing to leave with the jury a defence based on the possibility that the appellant attended at Nadeau’s residence to commit a theft.

[36] The defence position at trial was that the appellant was not at Nadeau’s apartment and that the appellant did not participate in the robbery and murder of Nadeau and his girlfriend. Counsel for the appellant argues that a careful reading of the defence submissions shows that the defence advanced, albeit with little force or emphasis, the alternative position that if the appellant was present, he was there to commit theft, not robbery.

[37] I must confess that I cannot see that the defence advanced such an alternative position. On my reading, it appears clear that the defence position throughout was that the appellant was not at the crime scene.

[38] I note in this regard that before giving his charge, the trial judge asked counsel to provide him with written summaries of their positions that he could read to the jury as part of the charge. Defence counsel raised no objection to the manner in which the trial judge dealt with the defence position in his charge.

[39] I acknowledge that a trial judge has a duty to leave every defence with the jury for which there is an air of reality on the evidence, even if the defence has not been raised by counsel. However, in the circumstances of this case, I cannot conclude that there was an evidentiary basis to support the defence of theft. The only real issue at trial was whether the appellant accompanied Landriault to Nadeau’s apartment on the night in question. If the jury accepted that he had, there was no viable basis upon which to find that he did so with an intention to steal drugs without the use of actual or threatened violence. The suggestion that the “drug rip” could have been done without the use of actual or threatened violence is not plausible in the circumstances of this case. There is simply no air of reality to such a defence given the evidence in this case.

[40] In consequence, this ground of appeal fails.

ISSUE #3 – POST-OFFENCE CONDUCT

[41] Counsel for the appellant conceded that the alleged error in respect of the instruction on post-offence conduct depended upon this court holding that the theft defence ought to have been put to the jury. In light of that concession and the conclusion reached above that there was no air of reality to the theft defence, this ground of appeal must fail.

SENTENCE APPEAL

[42] The appellant was sentenced to fifteen years imprisonment, reduced by five years to take into consideration the time the appellant spent in pre-trial custody. The sentencing judge ordered that the appellant not be eligible for parole until he had served one half of his sentence.

[43] The appellant argues that the sentencing judge erred in increasing the period of parole ineligibility in the absence of exceptional circumstances and by imposing a sentence that was outside the appropriate range.

[44] The Crown conceded, based on dicta of this court in R. v. Goulet (1995), 1995 1198 (ON CA), 97 C.C.C. (3d) 61 at 65 and R. v. Osborne (1996), 1996 980 (ON CA), 110 C.C.C. (3d) 161 at 166 - 7, that the sentencing judge erred when he concluded that “special circumstances” were not required in order for him to exercise his jurisdiction in increasing the period of parole ineligibility.

[45] Despite that error, however, in my view the circumstances of this case show that the imposition of such an order was fully warranted.

[46] The sentencing judge had before him the appellant’s lengthy criminal record dating back to 1976 that included convictions for possessing and trafficking in narcotics, break and enters, robberies (for which he received a sentence of 42 months), possession of a firearm while prohibited, assault causing bodily harm, theft, failing to comply with a recognizance and being unlawfully at large.

[47] The circumstances of the offender, including his poor likelihood of rehabilitation within the normal period of parole ineligibility and continuing dangerousness, are valid considerations when considering the justification of an order for increased parole ineligibility. See Re Cheddesingh (2002), 2002 49362 (ON CA), 168 C.C.C. (3d) 310 at paras. 21 – 23 (Ont. C.A.).[^2]

[48] These considerations applied in this case. As noted by the sentencing judge, following previous early release from the penitentiary the appellant had violated parole. He stated that the appellant was a career criminal with little hope for rehabilitation. He described the appellant as being “the representative of violence, sloth and indecency, the very opposite of the values which our community strives to foster”. There were no apparent mitigating factors. In the circumstances, the imposition of a period of increased parole ineligibility was justified.

[49] The appellant was involved in a serious offence characterized by a high level of violence and brutality. The sentencing judge was fully aware of the appellant’s role in the offences. He considered the appellant’s background, including his lengthy criminal record and the steps that the appellant took to cover up his connection to the deaths of Nadeau and Bannerman. In these circumstances, I cannot conclude that the sentence was demonstrably unfit or outside the appropriate range.

[50] As the sentencing judge made no error in principle in respect of the length of sentence, there is no basis upon which this court is entitled to interfere.

DISPOSITION

[51] For these reasons, I would dismiss the conviction appeal, grant leave to appeal the sentence and dismiss the sentence appeal.

“E.E. Gillese J.A.”

“I agree M.A. Catzman J.A.”

“I agree R.S. Abella J.A.”

Released: September 26, 2003

[^1]: Evidence of the appellant’s past involvement in drug “rips” was ruled inadmissible for failing to meet the test for similar act evidence.

[^2]: Leave to appeal granted [2003] S.C.C.A. No. 112.