DATE: 20030409

DOCKET: C32913

COURT OF APPEAL FOR ONTARIO

ABELLA, GOUDGE AND ARMSTRONG JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Christopher Hicks Joseph Wilkinson and Catriona Verner for the appellant

Respondent

• and -

SOODARSAN BAJRANGIE-SINGH

Applicant/Appellant

Robert Hubbard and Suzanne Duncan for the respondent

Heard: February 27, 2003

On appeal from the conviction by Justice E.R. Browne of the Superior Court of Justice dated September 29, 1996 and from the sentence imposed by Justice E.R. Browne dated October 29, 1996.

GOUDGE J.A.:

[1] On September 26, 1993, the appellant killed his wife by shooting her 13 times with a 9mm Beretta pistol. He was charged with first-degree murder.

[2] On September 29, 1996 he was convicted of second-degree murder. On October 29, 1996 he was sentenced to life imprisonment without eligibility for parole for a period of 15 years.

[3] The appellant appeals his conviction and, if leave is granted, his sentence.

[4] The appellant raises a number of arguments on his conviction appeal. I called on the Crown to respond to three of them.

[5] The appellant’s first argument concerns the role played in the trial by a psychiatrist, Dr. Norris.

[6] Dr. Norris was retained by defence counsel in early October 1993. He interviewed the appellant on October 13 and 19, 1993. He prepared a four and one-half page report for defence counsel dated October 28, 1993 in which he reviewed at some length the appellant’s history and his account of the day of the killing. Dr. Norris gave his preliminary opinion, which was that the appellant was fit to stand trial, but that there was strong suggestive evidence that made desirable the appellant’s admission to St. Thomas Psychiatric Hospital for a 60-day assessment of his criminal responsibility. Dr. Norris was a consulting psychiatrist at that hospital.

[7] The fresh evidence tendered by the appellant shows that defence counsel explained this proposal to the appellant, making clear that it was Dr. Norris who would do the assessment, that it would be available to the Crown and that it could be used at trial to impeach the appellant’s credibility. The appellant approved of this proposal.

[8] On December 1, 1993, defence counsel applied for the necessary court order, using in support a short letter from Dr. Norris dated November 30, 1993 which said only that he had met with the appellant on October 13 and 19 and that a 60-day period for assessment of the appellant’s criminal responsibility for the alleged offence and his fitness to stand trial was warranted.

[9] Dr. Norris’ assessment report to the court is dated February 10, 1994. While it is not based on his October interviews with the appellant or his prior report to defence counsel of October 28, 1993, it contains much of the same information. It addresses the appellant’s history and his account of the day of the killing. It also gives Dr. Norris’ opinion, which by that time was that there was no strong evidence to satisfy the criteria for a s. 16 defence and that the appellant was fully fit to stand trial.

[10] Like the November 30, 1993 letter, this report was supplied to the Crown.

[11] Not surprisingly, the defence then sought the assistance of other experts, Dr. Langevin, a psychologist, and Dr. Gojer, a psychiatrist. Both gave evidence for the defence at trial from which it is clear that both were given Dr. Norris’ October 28, 1993 report by defence counsel to assist in preparing their own opinions.

[12] The fresh evidence also revealed that very shortly before trial, or early in the trial, the Crown retained Dr. Norris when defence counsel advised that he intended to call psychiatric evidence. The Crown did so because Dr. Norris was the author of the court ordered assessment report.

[13] The trial began on September 9, 1996. On September 18, 1996, the Crown and defence counsel consented to an order excepting the experts from the order excluding witnesses. Dr. Norris remained in the courtroom for the Crown as did Dr. Langevin for the defence. Indeed Dr. Langevin’s evidence began on that day.

[14] On September 20, 1996, the Crown acquired from Dr. Norris his notes of his interviews with the appellant on October 13 and 19, 1993. These notes were immediately disclosed to the defence. While it is clear that at some point after the Crown retained Dr. Norris it acquired a copy of his report of October 28, 1993, the precise date of acquisition is unclear.

[15] The Crown called no psychiatric evidence in chief. When the appellant gave evidence in his own defence, the Crown initially proposed to cross-examine him on his statements to Dr. Norris, but after defence counsel objected that the statements could not be said to be voluntary, the Crown declined to pursue this line of questioning.

[16] Similarly, the Crown sought to call Dr. Norris in reply, but when defence counsel objected that Dr. Norris had a conflict of interest and was thereby not a competent witness, the Crown decided against calling Dr. Norris at all.

[17] Against this factual backdrop, the appellant makes two submissions.

[18] The first is that the Crown acquired from Dr. Norris the information contained in his report of October 28, 1993 and in his notes of his two interviews with the appellant earlier that month and that this material was protected by privilege which had not been waived. The appellant says that this rendered the trial unfair.

[19] I do not agree. In summary, my view is that the privilege was probably waived, at least in substantial measure, but more importantly, no prejudice resulted.

[20] On the question of privilege, there is no doubt that Dr. Norris’ notes and his October 28 report were created at the request of defence counsel for the purpose of litigation and were therefore protected by privilege. There is also no doubt of the fundamental importance of privilege to our system of justice. See R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445.

[21] It is unfortunate that neither the Crown nor the defence raised the question of privilege (and its possible waiver) at trial so that it could be properly explored at that point when the facts could be fully fleshed out and the range of options for dealing with the issue was greatest. However, when the Crown received a copy of Dr. Norris’ notes and his October 28 report that was clearly prepared for defence counsel, the issue of privilege apparently did not register. Equally, after the defence learned that the Crown had retained Dr. Norris as its expert, while objections were made based on voluntariness and conflict of interest, no issue of privilege was raised.

[22] Hence I am left to determine the issue at first instance on appeal with some assistance from the fresh evidence, upon which both parties have drawn.

[23] Turning first to Dr. Norris’ report of October 28, 1993, it is important to underline that the information it contains about the appellant’s history and his account of the day of the killing is essentially repeated in his February 10, 1994 assessment done for the court. The latter was required to be given to the Crown and was available to be used at trial by the Crown within the constraints provided by s. 672 of the Code. Given that the appellant raised both an automatism defence and a s. 16 defence, those constraints were limited in this trial. Within those constraints, the information in the October 28, 1993 report that was essentially repeated in the February 10, 1994 report would appear to have lost the protection of privilege by the time of trial.

[24] As to Dr. Norris’ notes of his meetings with the appellant on October 13 and 19, 1993, the privilege would appear to have been lost on September 18, 1996 when Dr. Langevin began to give evidence. Dr. Langevin had reviewed Dr. Norris’ October 28, 1993 report in preparing his own opinion and could be cross-examined on it and the meetings from which it was derived.

[25] However, it is unnecessary to finally decide the privilege issue, because in my view it cannot be said that any prejudice resulted to the appellant. The information in the October 28, 1993 report was essentially repeated in the February 10, 1994 assessment report for the court. The notes of the two October meetings are best described as cryptic. Indeed in opposing the calling of Dr. Norris by the Crown, defence counsel described them as scanty having “almost nothing to them.” Most importantly, at trial the Crown tendered none of this information. Dr. Norris gave no evidence and the appellant was not cross-examined on what he said to Dr. Norris. Thus it cannot be concluded that the Crown’s acquisition of the October 28, 1993 report and the notes of the two October meetings rendered the trial unfair.

[26] The appellant’s second submission is that Dr. Norris’ presence at the trial on behalf of the Crown rendered the trial unfair. The simple answer to this submission is that defence counsel consented to his presence, and in return was permitted to have his own expert present.

[27] Thus both submissions in support of this ground of appeal must fail.

[28] The second ground of appeal upon which I sought the Crown’s response is that the trial judge erred in putting the defence of non-insane automatism to the jury and in doing so failed to conform to the requirements of R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290.

[29] I do not agree with this submission. In my view the trial judge adequately explained non-insane automatism in his charge. While he did not apply the law as set out in Stone since that case had not yet been decided, that was to the appellant’s benefit. Where Stone requires an accused to establish this defence on a balance of probabilities, the trial judge told the jury that the appellant could be acquitted on the basis of this defence if he raised a reasonable doubt in respect of it. That was consistent with the state of the law at that time. Therefore this ground of appeal must also fail.

[30] The appellant’s third argument is that the trial judge erred in putting the s. 16 defence to the jury because in doing so he took away the possibility that the appellant did not know that his acts were legally wrong. In addition, it is argued that the trial judge misstated the evidence of Dr. Gojer in putting this defence to the jury.

[31] While the trial judge did tell the jury that the s. 16 test “is not scaled against ‘legally wrong’”, I do not view this as a reversible error. There was no evidence at trial to support a finding that the appellant did not know his actions were legally wrong. Moreover, while the trial judge originally stated the evidence of Dr. Gojer in a way that could have been misleading, he corrected this in his recharge. Thus I would not give effect to this ground of appeal either.

[32] The grounds of appeal from conviction on which I did not hear from the Crown can be dealt with briefly.

[33] I do not view any errors in the self-defence charge as fatal because the defence had no air of reality. There was no evidence whatsoever that the appellant felt he had no way to preserve himself except to shoot his wife or that in shooting her he did not intend to kill her.

[34] Nor did the trial judge err in his treatment of the hearsay elicited by the Crown from the defence experts. He clearly and correctly warned the jury about the limited use that could be made of that evidence.

[35] His charge on reasonable doubt, though predating R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, was adequate to the task. Through a question it asked, the jury made clear that it knew the distinction between the criminal and civil burdens of proof. Viewing the charge as a whole there is no reasonable likelihood that the jury misunderstood the criminal standard of proof.

[36] The trial judge did not err in charging the jury that an adverse inference could not be drawn from the Crown’s failure to call reply psychiatric evidence. It was the vehement objection of defence counsel, knowing that Dr. Norris would contradict the defence psychiatric evidence, that resulted in the Crown not doing so.

[37] I disagree that the trial judge erred in singling out the accused as having a motive to lie. The trial judge simply did not do this.

[38] Finally, the evidence of the deceased’s emotional state prior to being killed was properly admitted, given the defence of self-defence. That made relevant the nature of their marital problems including her feelings. The existence of these problems was admitted by the appellant. Hence the hearsay nature of some of this evidence was of no moment.

[39] In the result the conviction appeal must be dismissed.

[40] The sentence appeal challenges the imposition of a 15 year period of parole ineligibility. In raising that period to this level, the trial judge treated as an aggravating factor that the appellant had attempted to shoot and kill his previous wife in 1975. This was not properly established but was before the trial judge only as hearsay recounted by Dr. Gojer. Indeed the trial judge expressly instructed the jury to disregard that evidence for its truth.

[41] In my view the use of this as an aggravating factor represents an error in principle that warrants the setting aside of this sentence.

[42] The appropriate range of parole ineligibility for a brutal domestic homicide of an unarmed victim was suggested to be 12 to 15 years by this court in R. v. McKnight (1999), 1999 3717 (ON CA), 44 O.R. (3d) 263 (C.A.). In that case a period of parole ineligibility of 14 years was imposed by this court.

[43] While the appellant committed a murder that can only be described as brutal and horrific, the facts of McKnight bespeak a savagery that sets that case apart from this one. Taking that into account together with the other factors relevant to sentencing that were properly considered by the trial judge I would set aside the sentence imposed by the trial judge and impose a period of parole ineligibility of 13 years.

[44] The conviction appeal is therefore dismissed. Leave to appeal sentence is granted and the period of parole ineligibility varied to 13 years.

Released: April 9, 2003 “STG”

“S.T. Goudge J.A.”

“I agree R.S. Abella J.A.”

“I agree Robert P. Armstrong J.A.”