DATE: 20030408
DOCKET: C26218 & C28510
COURT OF APPEAL FOR ONTARIO
MACPHERSON, SIMMONS AND GILLESE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Susan M. Chapman and Sarah Gray for the respondent
Respondent
- and -
JASON ROCHON and BONNIE McAULEY
Marie Henein and Jennifer Gleitman for the appellant Jason Rochon
Appellants
Brian H. Greenspan for the appellant Bonnie McAuley
Heard: November 21 and 22, 2002
On appeal from the convictions by Justice James B. Chadwick of the Superior Court of Justice, sitting with a jury, on December 22, 1995.
MACPHERSON J.A.:
A. INTRODUCTION
[1] Jason Rochon and his mother Bonnie McAuley were convicted of the first degree murder of William McAuley following a seven week trial presided over by Justice James Chadwick. William McAuley was Bonnie’s husband and Jason Rochon’s step‑father. A third co‑accused, Gerald Sheppard, was convicted of second degree murder. Ms. McAuley and Mr. Rochon received the automatic sentences for first degree murder – life imprisonment with parole ineligibility of 25 years.
[2] Ms. McAuley and Mr. Rochon appeal their convictions.[^1] They do so largely on the basis of alleged defects in the trial judge’s charge to the jury. The issues raised by this component of the appeal include the trial judge’s treatment of domestic abuse in the McAuley home, the charge on self‑defence, the charge on parties to the offence, the sufficiency of the trial judge’s caution about the testimony of some of the Crown witnesses, the instruction about the use the jury could make of statements by Jason in the case against his mother, and the charge on reasonable doubt.
[3] In addition, Jason Rochon appeals on the ground that the Crown’s cross‑examination of him was so abusive as to compromise the fairness of the trial.
B. FACTS
[4] William McAuley (“William”) was found dead on the floor of his home in Ottawa on July 26, 1993. He had been stabbed with a knife and beaten with a baseball bat. Jason Rochon (“Rochon”) and his friend Gerald Sheppard (“Sheppard”) admitted that they had confronted and killed William, but argued that they acted in self‑defence. Alternatively, Rochon contended that he was acting in defence of his mother, or that he had been provoked by William and should therefore be convicted only of manslaughter.
[5] The theory of the defence was that William was a heavy drinker who frequently and brutally beat his wife, Bonnie McAuley (“Bonnie”), and on occasions assaulted her three children, including Rochon. Some months earlier, William had also threatened to kill Rochon if he ever set foot in the house again. On the morning of July 26, 1993, Bonnie called Rochon and told him that William hit her during an argument and that she planned to go to her parents’ home with her other children later that day. Rochon had grown sick of watching his mother being brutalized and, fearing for her safety and that of the children, decided to confront William and do whatever it took to prevent William from hurting his family.
[6] Rochon initially intended to confront William outside a bar where William was drinking. In order to conceal their identities, he and Sheppard put on black clothes and gloves. They also brought along two baseball bats and a knife for protection. However, the parking lot outside the bar was too bright, so Rochon and Sheppard went to the McAuley home to wait for him there. When William arrived home, he lunged at Rochon. Sheppard struck William with a bat. Fearing that William would kill him or, at some later time, his mother, Rochon also struck him with a bat. He testified that William fell, and he continued to strike him in a blind rage. He did not recall using the knife, but remembered pulling it out of William’s chest.
[7] Following the homicide, Bonnie, Rochon and Sheppard, along with several of the young men’s friends, attempted to cover up Rochon’s and Sheppard’s participation in the killing. The defence theory was that the Crown used the involvement of these friends as leverage to induce them to give false testimony implicating Bonnie and Rochon in a conspiracy to kill William in order to collect insurance money. In particular, the defence contended that the testimony of Steven Loken was especially suspect. He had been threatened with a first degree murder charge. He eventually pleaded guilty to a charge of obstructing a police officer and received a suspended sentence. He testified as a Crown witness. The defence contended that his testimony changed significantly between his initial statement to the police and his testimony at trial, and each time it changed it gave further support to the Crown theory of the case.
[8] The Crown theory was that Bonnie and Rochon agreed that Rochon would kill William and they would share the insurance money, including on a policy that Bonnie had placed on William’s life three days before William’s death. Bonnie and Rochon had often told people that they would like to kill William and collect insurance money. Specifically, Rochon had repeatedly told people that his mother wanted him to kill William, and that she would buy him a car and send him and his friends on a vacation. Bonnie was experiencing serious financial difficulty and needed the money. Nonetheless, she told a neighbour to hold on to a sports car that was for sale “until she could arrange financing”. Rochon and Bonnie both attempted to find a hitman to do the job but were not successful. The ultimate plan was that Bonnie would go to the movies so that she would have an alibi, and Rochon and Sheppard would do the killing, making it look like a break‑in. Rochon and Sheppard arrived at the apartment, unscrewed the light bulbs and hid in the dark. They attacked William the moment he walked in the door.
[9] This brief and general summary of the facts, anchored in the essential features of the case put forward by the Crown and the defence, needs to be supplemented by reference to other facts. However, it is preferable to refer to these additional facts in the context of the specific issues to which they relate.
C. ISSUES
[10] The appellants advance six grounds of appeal, two relating to Rochon, two relating to Bonnie, and two relating to them jointly.
(1) Rochon issues
(a) Did the trial judge err in his instruction to the jury on self‑defence?
(b) Was the Crown’s cross‑examination of Rochon so abusive that it compromised the fairness of the trial?
(2) Bonnie issues
(a) Did the trial judge err in his instruction to the jury about how to assess Bonnie’s potential liability as a party to the offence?
(b) Did the trial judge err by failing to properly instruct and caution the jury with respect to the use of statements made by Rochon as evidence against Bonnie?
(3) Joint issues
(a) Did the trial judge provide a sufficient caution with respect to the testimony of several Crown witnesses, especially Steven Loken?
(b) Was the trial judge’s instruction on reasonable doubt defective?
D. ANALYSIS
(1) Rochon issues
(a) Self‑defence
[11] The appellant makes several arguments about the trial judge’s charge relating to self‑defence. I would group these arguments into three categories – the trial judge’s treatment of the evidence relating to domestic abuse, his charge on s. 34(2) of the Criminal Code, and whether he ‘overcharged’ by leaving too many of the Code’s self‑defence provisions with the jury.
(i) Domestic abuse
[12] Rochon submits that the trial judge erred in three specific ways in dealing with the evidence concerning the violence perpetrated by the deceased in the family home. First, he minimized the significance of this evidence by instructing the jury that it was of limited relevance to the factual issues to be resolved by them. Second, he failed to refer to important aspects of this evidence when summarizing it for the jury. Third, he failed to identify the specific issues to which this evidence related, and to instruct the jury adequately concerning how they could use that evidence in determining those issues.
“Limited relevance” of domestic abuse
[13] The trial judge’s comment that the evidence of domestic abuse was of limited relevance appears early in the charge in the following context:
At the beginning of the review of the facts, let me first deal with spousal abuse. There is conflicting evidence about the relationship between Bonnie McAuley and Bill McAuley. After listening to all the evidence, I get the feeling that we are dealing with a Dr. Jekyll and Mr. Hyde. Some people see him in one light and some people see him in another light. I do not know what the true story is. Spousal abuse is, of course, of grave concern to the courts. We have been taking a very strong and responsible approach to spousal abuse.
Having said that, it is of limited relevancy in this particular case. If Bonnie McAuley was charged as the actual perpetrator, the one who had committed the murder, it would be very relevant to her position. However, she is not and I will explain in a short time how she is brought into this particular charge.
The family situation of abuse may have a bearing upon Jason Rochon and his state of mind. It may also have relevancy when you consider the actions of Bonnie McAuley. It may help explain why she said or did certain things prior to the death of William McAuley. [Emphasis added.]
[14] Read as a whole, rather than minimizing the evidence of domestic abuse, this passage accurately set out its role in the trial and focused the jury’s attention on its relevance and permissible use. The evidence of domestic abuse carried with it the potential for misuse by engendering feelings of hostility against the deceased. Although the trial judge might have gone further and instructed the jury that they must not conclude, based on this evidence, that the deceased deserved punishment for his behaviour, the impugned instruction struck an appropriate balance by directing the jury’s attention to the permissible use of the evidence. In particular, the linkage between the domestic abuse and Rochon’s state of mind appropriately presaged an issue that would be central to Rochon’s defences under ss. 34(2) and 37 of the Code.
Failure to refer to important evidence
[15] I agree with Rochon’s submission that, in his summary of the evidence relating to self-defence, the trial judge failed to mention evidence from a former neighbour concerning an incident of extreme violence in 1982 in which William threatened to kill not only Bonnie, but also Rochon, and that he also failed to mention Rochon’s step-sister’s evidence confirming that the abuse persisted until at least 1992. However, I do not agree with his submission that these were significant omissions.
[16] Rochon contends that these omissions are important because, although the Crown did not contest the relevance of domestic abuse to the issues at the trial, it asserted that Bonnie overplayed the abuse and that, if there was abuse, it was not at a level that would support a claim of self-defence.
[17] However, it is important to recall that the trial judge commented on the conflicting evidence and said “I get the feeling that we are dealing with a Dr. Jekyll and Mr. Hyde”, conveying the impression that he thought the evidence of domestic abuse was worthy of belief. Moreover, in reviewing the evidence relevant to self-defence, the trial judge properly focused the jury’s attention on Rochon’s understanding of what had occurred. For example, near the beginning of his summary of the evidence relating to ss. 34(1) and (2), the trial judge said:
On examination-in-chief, [Rochon] was asked about his state of mind, and Rochon said that in June of 1993 the picture he has was that McAuley came home drunk every night and that he was violent towards his mother and his brother and sister.
He was convinced, according to his evidence, that his mother would be killed. You will recall from his evidence that he spoke to Jeff Walker at the Children’s Aid Society and that he also spoke to Sherry Bennett who worked at the Billings House. Obviously, he got no satisfaction from them….
[18] The trial judge alluded to the former neighbour’s evidence and to Rochon’s step-sister’s evidence elsewhere in the charge. In my view, the trial judge adequately reviewed the evidence of domestic abuse relating to the critical issue that the jury had to determine, namely, Rochon’s state of mind.
Failure to relate evidence to specific issues
[19] Rochon’s third submission on the basis of domestic abuse is that the trial judge failed to identify the specific issues to which the evidence of domestic abuse related and to instruct the jury adequately concerning how it could use that evidence in determining those issues. In support of this submission, Rochon relies on three distinct instances where he claims the trial judge erred.
[20] First, Rochon asserts that, when dealing with s. 34(2) of the Code, the trial judge reviewed the evidence globally and failed to point out to the jury that the evidence of domestic abuse was relevant to the specific issues of whether Rochon was under a reasonable apprehension of death or grievous bodily harm at the time of the killing, and whether Rochon believed, on reasonable grounds, that he could not otherwise preserve himself. In addition, the trial judge failed to explain to the jury how they could use the evidence of domestic abuse in determining those issues.
[21] I disagree. When the trial judge turned to the issue of self‑defence, he reviewed the facts relevant to a s. 34(2) defence:
According to Rochon, there were at least three confrontations between McAuley and Rochon during the period of time that Rochon lived with the McAuleys. He described those confrontations in detail. You may recall they were not brutal confrontations, but they were confrontations and there was perhaps some shoving and some threats at that time.
When he left the home after this snow‑shovelling incident we heard so much about, Rochon’s evidence is that McAuley told him, “If you ever step foot in this house again, I will kill you.” And Rochon in his evidence in chief said he believed McAuley when McAuley said that.
On examination‑in‑chief, he was asked about his state of mind, and Rochon said that in June of 1993 the picture he had was that McAuley came home drunk every night and that he was violent towards his mother and his brother and sister. [Emphasis added.]
[22] In addition, in his recharge concerning s. 34(2), the trial judge referred to the evidence relating to Rochon’s background, including the history of violence, again highlighting the potential relevance of this evidence to the specific issue of Rochon’s subjective fear:
Based upon his fear of McAuley, was Rochon in reasonable apprehension of danger or death or grievous bodily harm and had he no other solution but to kill his attacker, McAuley? So, it is the state of mind of Rochon that you have to look at, taking into consideration all of the evidence that you have heard about the family violence.
Rochon does not have to wait until the attack is in full progress before he makes this assessment. In other words, you do not have to wait until you are beaten to death before you make the assessment that you may be in fear of your life. The background of Rochon and the history of family violence, and his fear of McAuley, are all relevant in determining what Rochon believed about the threats made by McAuley and Rochon’s apprehension of fear and the need to use deadly force to repel the attack by McAuley. [Emphasis added.]
[23] In my view, it is clear from these passages that the trial judge reviewed the relevant evidence relating to domestic abuse and related it to the central issues of self‑defence.
[24] Second, Rochon contends that, when dealing with s. 37 of the Code, the trial judge failed to instruct the jury that the evidence of domestic abuse was specifically relevant to whether Rochon used more force than was necessary to prevent an assault on his mother or himself under s. 37 of the Code.
[25] I disagree. The trial judge outlined Rochon’s position concerning the protection of others, and framed the issue as whether Rochon was entitled to defend himself and his mother from the threat of the deceased by using no more force than necessary to prevent any assault or its repetition by the deceased. Referring to the evidence on this issue, the trial judge said:
You should consider the following evidence and any other relevant evidence when considering whether or not Rochon was acting in self‑defence within the meaning of 37. Once again, consider the attack by McAuley, the grabbing of the shirt and the verbal threats to Rochon and Bonnie McAuley. Did Rochon use more force than necessary to repel this assault by McAuley?
Consider Rochon’s state of mind which I have already referred to, and his background. Consider the amount of force used by McAuley. The bat, the knife, the fact of his size, the fact that Sheppard was there, the fact that Sheppard also had a bat. Consider the extent of the injuries that I have just read to you by Dr. Johnston. [Emphasis added.]
[26] Rochon’s final submission under this heading is that the trial judge failed to instruct the jury that they could use the evidence of domestic abuse in assessing the likelihood that the deceased was the initial aggressor, and concerning the plausibility of Rochon’s evidence that he took the bats and the knife for protection and that he intended only to confront the deceased.
[27] I disagree. Trial counsel did not request either of these instructions. In any event, both considerations flowed naturally from the evidence. In particular, Rochon explained at the trial that he took the bats and the knife for protection. In these circumstances, I see no realistic possibility that the jury would not have recognized these potential uses of the evidence.
(ii) Section 34(2)
[28] Rochon contends that the trial judge erred in instructing the jury on s. 34(2) in three ways: (1) the trial judge failed to instruct the jury that even an accused who provokes an assault can rely on s. 34(2); (2) the trial judge improperly stated that s. 34(2) is more stringent than s. 34(1); and (3) the trial judge improperly narrowed his s. 34(2) defence by removing a scenario in which he had a mistaken belief as to the existence of an assault by the deceased.
Section 34(2) where accused provoked assault
[29] I do not agree that the trial judge erred in failing to instruct the jury that s. 34(2) is available even when an accused provokes an assault. There is a distinction between telling a jury that an accused who provokes an assault cannot rely on s. 34(2) and not telling a jury that even an accused who provokes an assault can rely on s. 34(2). As explained by Laskin J.A. in R. v. Jenkins (1996), 107 C.C.C. (3d) 440 at 452 (Ont. C.A.):
It is an error in law to expressly tell the jury that an accused who provokes an assault cannot rely on s. 34(2). Whether it is an error in law not to tell the jury that even an accused who does provoke an assault can rely on s. 34(2) depends on the rest of the instructions on self‑defence. If the instructions as a whole reasonably could have misled the jury into believing that an accused who provokes an assault is deprived of the defence of self‑defence under s. 34(2), then the non‑direction on provocation is an error of law.
[30] In the present case, the trial judge carefully outlined the respective components of ss. 34(1) and (2) of the Code. The requirement that Rochon not have provoked the assault was addressed on s. 34(1), but not on s. 34(2). There are only two sentences in the charge that created any possible suggestion that s. 34(2) includes a similar requirement. First, after completing his review of ss. 34(1) and (2), the trial judge said the following:
As we have no way of knowing whether you will find Jason Rochon commenced or provoked the assault, then you must turn to the next section, which is section 35. [Emphasis added.]
Second, when dealing with s. 35, the trial judge read the following definition of provocation:
Provocation includes, for the purposes of sections 34 and 35, provocation by blows, words or gestures. [Emphasis added.]
[31] In my view, the manner in which the trial judge instructed the jury on ss. 34(1) and (2) excludes any possibility that either of these sentences would have misled the jury into concluding that an accused who provokes an assault cannot rely on s. 34(2). The trial judge told the jury that “s. 34(1) provides a defence … if you believe, or are left with a reasonable doubt that” and listed four requirements, including absence of provocation. Similarly, the trial judge told the jury that “34(2), it provides a defence … if you believe or are left with a reasonable doubt that” and listed three requirements. The trial judge made no reference to absence of provocation in relation to s. 34(2). It would have been obvious to the jury from these instructions that s. 34(2) was different from s. 34(1) and that a defence was available under s. 34(2) so long as the listed requirements were satisfied.
[32] Moreover, it is not incumbent on a trial judge to charge on every variation of a self‑defence provision. Read as a whole, the trial judge’s charge on s. 34(2) placed Rochon’s defence under this provision before the jury in a straightforward, comprehensible and fair fashion. Rochon’s defence under this provision was that William assaulted him when he entered the house and that Rochon defended himself. The trial judge presented this defence to the jury.
Section 34(2) as “more stringent” than s. 34(1)
[33] Rochon also contends that the trial judge erred by observing: “You can see by examining both of these subsections that 34(2) has more stringent conditions for its application than 34(1).” Rochon submits that since the trial judge also told the jury (correctly, Rochon concedes) that he did not think that s. 34(1) applied, the description of s. 34(2) as “more stringent” might have left the jury with the impression that it was a particularly difficult defence for an accused to establish.
[34] I disagree. In several important respects, the conditions of s. 34(2) are quite different from those relating to s. 34(1). Section 34(2) applies only to situations where a serious threat (“reasonable apprehension of death or grievous bodily harm”) is joined with a proportionately serious response (self‑defence causing “death or grievous bodily harm”). Section 34(1) does not require the reasonable apprehension and belief that are necessary to invoke s. 34(2).
[35] In any event, the trial judge gave a full and clear charge on s. 34(2). It is evident from a reading of his charge as a whole that he regarded s. 34(2) as central to Rochon’s defence and instructed the jury accordingly.
Mistaken belief as to existence of assault
[36] In his charge to the jury, the trial judge stated that “self‑defence is only available to Rochon if the force used by him was in response to an unlawful assault by McAuley.” In fact, self‑defence is available where the accused had a reasonable but mistaken belief that he was being assaulted: see R. v. Malott, [1998] 1 S.C.R. 123 at 132. Rochon argues that this distinction is relevant in light of the evidence of McAuley’s prior assaults on Rochon and his history as a “fighter” and abusive spouse, all of which make it more likely that Rochon might have mistakenly believed he was being assaulted by McAuley.
[37] I do not agree that the question of whether Rochon reasonably but mistakenly believed in the existence of an assault was a live issue in this trial. Rochon’s evidence was that McAuley attacked first, lunging at him and grabbing his shirt. This is not a case, such as Malott, where it was unclear whether the alleged conduct of the deceased – even accepting the accused’s testimony – actually amounted to an assault. In Malott, the “unlawful assault” consisted of opening a car door and putting one foot on the ground, while the accused stood outside the car. The history of abuse and the surrounding events in Malott were critical in establishing that this otherwise unremarkable act could result in a reasonable belief in an assault.
[38] In the present appeal, the issue was whether the nature of McAuley’s assault, as described by Rochon, justified the use of deadly force. On this issue, the trial judge properly reviewed the evidence of McAuley’s violent history, and related it to Rochon’s reasonable belief that he needed to use deadly force to repel the attack.
(iii) Overcharge
[39] The trial judge instructed the jury with respect to ss. 27, 34(1), 34(2), 35 and 37 of the Code. Rochon contends that the inclusion of s. 34(1) amounted to an overcharge which probably had the effect of confusing the jury. I disagree, for two reasons.
[40] First, in pre‑charge discussions both Rochon’s counsel (a very experienced criminal counsel) and Crown counsel submitted that s. 34(1) should be left with the jury. Rochon’s counsel explained his position as follows:
THE COURT: Sections 34 and 35?
MR. NEVILLE: Yes.
THE COURT: Both parts of Section 34?
MR. NEVILLE: Yes. Now, obviously, given the, not just the head injuries and the knife injuries, I don’t think the jury would be troubled very long with 34(1), because that has, as its underlying premise, no intention to kill or cause bodily harm. Clearly that was inflicted. Given, however, Rochon’s evidence that he goes into a blackout or rage state, as he defined it, would certainly be a relevant area of evidence as to whether he had any lethal intent with a mind that was functioning as opposed to in a rage. That is why, I suppose, 34(1) is nominally a live issue because, was his mind actually functioning other than in a rage when the fatal harm was inflicted?
[41] In R. v. Pintar (1996), 110 C.C.C. (3d) 402 (Ont. C.A.), which I note was decided after the trial in the present case, Moldaver J.A. discussed the difficulties of determining which Criminal Code provisions to place before a jury in a self‑defence case. He discussed the particular problem relating to ss. 34(1) and (2) and suggested an approach for resolving the problem at p. 417:
On a practical level, in those cases where s. 34(1) remains theoretically available, it is often difficult, if not impossible, to imagine a scenario wherein the jury would reject the wider justification afforded by s. 34(2) and apply s. 34(1) to acquit. The question then becomes whether the risk of confusing the jury and complicating the charge justifies the inclusion of instruction on s. 34(1), when its application is at best tenuous and its scope of justification narrower than that available under s. 34(2).
For my part, I am of the view that when trial judges are faced with situations like this, they should call upon counsel to justify instruction on the narrower provision. If the results of that exercise reveal either the lack of an evidentiary base for putting the narrower provision, or an inability to demonstrate how the narrower provision might be available to fill a gap not provided for by the broader one, the narrower provision should be discarded. Once again, let me be clear that the underlying purpose of this exercise is not to remove self‑defence from the jury’s consideration. Rather it is designed to focus the jury’s attention on the essence of the claim to self‑defence and the available Code provision(s) most relevant to it.
[42] In my view, the trial judge did precisely what Moldaver J.A. suggested in this passage. He raised the issue with counsel, listened to their justification concerning s. 34(1), and decided to leave it with the jury.
[43] Second, the trial judge made it clear that the jury should focus on s. 34(2), not s. 34(1). He said:
With reference to 34(1), I would suggest the conduct of the accused Rochon does not fit within this provision. This section does not apply if you find that the force Rochon used was intended to cause death. On the facts before you, I would think you would have very little difficulty reaching that conclusion. However, this is something that you must decide, as jurors. It is not for me to decide.
In my view, this instruction struck an appropriate balance between the trial judge's recognition that s. 34(1) was, barely, a live issue and Rochon’s counsel’s request, in which the Crown joined, that it be left with the jury.
(b) Abusive cross‑examination
[44] Rochon submits that Crown counsel’s cross‑examination of him was abusive and improper to a degree that the fairness of the trial was compromised. Rochon divides this submission into two components: first, a contention that the Crown cross‑examined on irrelevant and prejudicial matters and in a condescending and sarcastic manner; and second, a contention that the Crown improperly pitted Rochon’s evidence against that of the Crown witnesses by inviting Rochon to comment on whether the Crown witnesses were lying.
[45] The Crown’s cross‑examination of Rochon took place over two days. It covers 230 pages of transcript and involved several thousand questions and answers. It was not a perfect cross‑examination, especially in its early minutes.
[46] Almost at the start of the cross‑examination, this exchange took place:
Q. Now, seeing as you’ve admitted that you killed William McAuley, why aren’t you pleading guilty?
MR. NEVILLE: That’s not a proper question, your Honour, with great respect. This is a trial. It’s a matter for the jury.
THE COURT: Mr. Berzins, there’s more than one charge included in the offence.
MR. BERZINS:
Q. Are you guilty of first‑degree murder?
A. You don’t believe so, sir.
Q. Are you guilty of second‑degree murder?
A. I don’t believe so, sir.
MR. NEVILLE: This is just doing it in a more detailed way. Your Honour just told him to move on. It’s not for Mr. Rochon to express his opinion of what level of guilt, if any, he has. It’s for the court.
THE COURT: Move on to something else.
MR. BERZINS:
Q. Well, I submit to you that this story that you have made up for the members of the jury is in order to get off on manslaughter, isn’t that correct?
A. It’s the truth, sir.
Q. Isn’t that your real reason, you want to go down only for manslaughter?
MR. NEVILLE: I’m going to object again. These are improper questions, they are legal questions.
THE COURT: Mr. Neville, I have heard your objection.
MR. BERZINS:
Q. And your evidence is that Mr. McAuley attacked you; right?
A. Yes, he did, sir.
Q. And you were in fact acting in self defence?
A. I didn’t act, sir. Actually when he grabbed me Jay had struck him and then I acted after.
Q. But you were acting in self defence essentially after that because he was going to attack you?
A. Yes.
Q. All right. So maybe you’re not guilty of anything at all, if you were acting in self defence.
MR. NEVILLE: Maybe not, maybe he’s not.
THE COURT: Mr. Neville, please.
THE WITNESS: That’s for the jury to decide, sir.
[47] Crown counsel’s questions in this exchange were improper, defence counsel properly objected, and the trial judge upheld the objections on the first two occasions. Crown counsel briefly continued with this line of questioning, defence counsel continued to object, and the trial judge noted, but did not uphold, the objection. Crown counsel then moved on to other areas. Although the questions should not have been asked and although it would have been preferable for the trial judge to move the Crown off this topic in a firmer fashion, in the context of a two‑day cross‑examination, I do not regard this brief exchange as sufficiently serious to constitute an abuse.
[48] Rochon also contends that Crown counsel improperly placed him in the position of calling several Crown witnesses liars. By way of example, Crown counsel referred to the testimony of Rebecca Sturdevant and asked Rochon: “Do you know of any reasons why she would have to lie?” Defence counsel properly objected and, on appeal, counsel for the Crown conceded that this type of question was improper: see R. v. R. (A.J.) (1994), 94 C.C.C. (3d) 168 at 178 (Ont. C.A.).
[49] Again, I do not think that this transgression rises to the level of ‘abusive’ in the context of the cross‑examination as a whole. A useful discussion of the limits of cross‑examination is contained in R. (A.J.), wherein Doherty J.A. said at p. 176:
Crown counsel is entitled, indeed, in some cases expected, to conduct a vigorous cross‑examination of an accused. Effective cross‑examination of an accused serves the truth‑finding function as much as does effective cross‑examination of a complainant.
There are, however, well‑established limits on cross‑examination. Some apply to all witnesses, others only to the accused. Isolated transgressions of those limits may be of little consequence on appeal. Repeated improprieties during the cross‑examination of an accused are, however, a very different matter. As the improprieties mount, the cross‑examination may cross over the line from the aggressive to the abusive. When that line is crossed, the danger of a miscarriage of justice is very real. If improper cross‑examination of an accused prejudices that accused in his defence or is so improper as to bring the administration of justice into disrepute, an appellate court must intervene: R. v. Fanjoy (1985), 21 C.C.C.(3d) 312, 21 D.L.R. (4th) 321, [1985] 2 S.C.R. 233; R. v. Ruptash (1982), 1982 ABCA 165, 68 C.C.C. (2d) 182 at p. 189, 36 A.R.346 (C.A.).
[50] I do not think that the Crown’s cross‑examination of Rochon in the present case crossed the line from aggressive to abusive. Although on several occasions Crown counsel impermissibly framed questions in terms of lying or motives for lying, for the most part he framed his questions in this domain in a proper fashion – namely, he set out what the Crown witness had said and invited Rochon to respond.
[51] Moreover, I think it essential to consider the cross‑examination in its entirety. On my reading, it was a regular and ordinary cross‑examination, both in tone and in substance. Indeed, in the entire 230 page transcript, the only objections made by Rochon’s counsel were in the two areas I have set out. As well, there was no objection or motion made at the conclusion of the cross‑examination. In short, the Crown’s cross‑examination of Rochon was far removed from the egregious cross‑examination of the accused described so vividly in R. (A.J.).
(2) Bonnie McAuley issues
(a) Party to the offence
[52] Bonnie advances two submissions with respect to the trial judge’s charge dealing with how the jury was to approach its assessment of her potential liability. The submissions relate to, respectively, ss. 21(1)(c) and 22 of the Criminal Code.
(i) Section 21(1)(c)
[53] Section 21(1)(c) defines party liability in terms of a person who “abets” another person who commits the offence. Both in the charge and in the recharge, the trial judge used the word “support” as part of the definition of “abet”.
[54] Bonnie contends that this was an error in that it makes the definition of “abet” too broad. In support of this submission, Bonnie relies on R. v. Greyeyes, [1997] 2 S.C.R. 825 at 837 wherein Cory J. said “[t]o abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed”, and the French version of s. 21(1)(c) which provides “quiconque encourage quelqu’un à la commettre”.
[55] For several reasons, I do not accept this submission.
[56] First, the trial judge did not use only the word “support” in defining “abet”. Indeed, the principal word he used was “encourage”. As I read his charge, his references to the definition of “abet” were: “whether . . . she provided guidance or encouragement to Rochon”; “abetting means to encourage or to support”; “An abettor may encourage or lend moral support to the principal offender”; “it would make her a party to the offence, just the same as Rochon, if you find that she provided guidance and counselling”; “was she counselling him”; “if she intended to counsel or guide Rochon”; and “if she intended . . . to encourage or support Rochon”. When I examine the phraseology employed by the trial judge, particularly in the context of his review of the evidence, it seems clear that the jury would have understood that it could find Bonnie liable as an abettor only if it was convinced that she played an active role in encouraging Rochon to commit the offence.
[57] Second, I do not think that the word “support” is impermissible in the context of a proper definition of “abet” in s. 21(1)(c). Indeed, there are many cases in which appellate courts have approved a formulation employing the linkage of “encourage” and “support”: see, for example, R. v. E. (L.) (1994), 94 C.C.C. (3d) 228 at 247 (Ont. C.A.); R. v. Rhyno (1944), 83 C.C.C. 186 at 189 (N.S.S.C.); and R. v. Vinette, [1969] 3 C.C.C. 172 at 174 (B.C.C.A.).
[58] Third, it is important to note that the word “support” has many meanings. In The New Shorter Oxford English Dictionary (Oxford: Clarendon Press, 1993) the definition of the verb “support” covers almost a full page and is divided into seven principal meanings, including “Strengthen the position of (a person . . .) by one’s assistance or backing”, “give confidence or strength to; encourage” and “Occupy a position by the side of (a person) in order to give assistance or encouragement”. In my view, these definitions of the word “support” clearly imply an element of action; indeed, they tend to treat “support” and “encourage” almost as synonyms.
[59] Combining these three reasons, the crucial point, in my view, is to examine the trial judge’s charge relating to s. 21(1)(c) in its entirety. When I do that, I am certain that the words the trial judge employed – encourage, guide, counsel, support – and his review of the evidence would have left the jury with the proper understanding that Bonnie could be found liable under s. 21(1)(c) only if she played an active role in promoting the crime committed by her son.
[60] Bonnie also contends that the trial judge might have left open the possibility that she could be convicted on the basis of having “encouraged” Rochon, without the need to link that encouragement to the homicide. This argument rests on the possibility that the jury could have taken the instruction to mean that it could convict on the basis that Bonnie simply encouraged Rochon’s hatred of McAuley, or encouraged him in some other general manner only indirectly linked to the offence. In support of this submission, Bonnie refers to the trial judge’s references to moral support, and “setting up” her son, “sort of knowing that he would react eventually”.
[61] I do not accept this submission. In my view, the trial judge explicitly linked the idea of encouragement with the offence committed. He said:
[I]n order to find her guilty of murder by this route, you would have to be satisfied that the crown has proven that she actually abetted Rochon, did the counselling as I told you, and intended to abet him to commit the offence of murder.
(ii) Section 21(2)
[62] Bonnie submits that liability as a party pursuant to s. 21(2) of the Code should not have been left with the jury because the circumstances relating to the alleged unlawful purpose (to kill William) were indistinguishable from the offence charged (first degree murder): see R. v. Simpson, [1988] 1 S.C.R. 3 at 15.
[63] I disagree. The trial judge instructed the jury that the unlawful common purpose was to assault William whereas the offence Rochon committed while carrying out the assault was murder. Although there is an overlap in the conduct comprehended by the two offences, that does not detract from the fact that they are separate offences: see R. v. Vang (1999), 132 C.C.C. (3d) 32 at 39‑41 (Ont. C.A.); and R. v. Light (1993), 78 C.C.C. (3d) 221 at 253‑54 (B.C.C.A.). Moreover, it is important to note that the trial judge instructed on s. 21(2) only with respect to possible verdicts of second degree murder and manslaughter. Bonnie was convicted of first degree murder. Accordingly, even if the judge erred by deciding to include s. 21(2) in his charge (and I conclude he did not), the error is of no moment.
(b) Use of Rochon’s statements re Bonnie
[64] Several Crown witnesses testified about Rochon’s statements to them about his desire and intention to kill his step‑father. According to some of these witnesses, Rochon implicated his mother in this enterprise. Bonnie contends that the trial judge did not adequately caution the jury about the use it could make of this testimony. Specifically, Bonnie submits that the trial judge failed to provide the instruction dealing with several people acting in concert in committing an offence required by R. v. Carter, [1982] 1 S.C.R. 938.
[65] In the general portion of his charge, the trial judge said:
As I mentioned to you, there have been statements made by one accused that may involve another accused. A statement alleged to have been made by an accused is only evidence in respect of the maker. In other words, if Jason Rochon has made a statement to someone, that statement can only be used against him. You may give it as much weight as you see fit in respect to its maker.
You must not consider it, however, in respect of any accused other than the accused who is alleged to have made it. It only relates to and may be used in relation to its maker, even if it mentions by name or other description the activities of other accused.
I will comment a little further upon that because of the question of co‑accused here and also the question of alleged conspiracy or common intent between the parties. But basically speaking, statements made by one accused is not evidence against the other unless the other accused is present and has adopted it.
This was a good general instruction to which Bonnie takes no exception.
[66] When he turned to Bonnie’s potential liability under s. 21(2), the trial judge said:
You have to be careful when you are looking at statements that have been made by Rochon to others, such as Rochon to Bradley, Rochon to Hale, Rochon to Loken. It is one thing when statements are made by Rochon which tell what he is going to do, but it becomes very difficult when there are statements made as to what his mother was going to do.
And what I say about that is that before you can even look at those statements, you have to find that there was a common conspiracy between the two of them and that it was murder, in order that the statements made by Rochon about what his mother ‑ ‑ in other words, to stab him in the lung, whether that could be applied to Bonnie McAuley. You would have to find a common intention before this can happen.
And the statements have to be made in furtherance of the common intention. In other words, if they are made after all of this has been discussed, after this plot has been launched, then they cannot be used against her. For example, I think one example that comes to mind is the discussion in Bradley’s back yard after the bat has been given and after the common intention, if you find that, had been hatched. This is after the fact and really is only a narrative of what may take place.
So you have to be very, very careful in the use you make of any statement made by Rochon that would bring in Bonnie McAuley, unless she was present, and I cannot recall any of the evidence where she was present.
[67] Bonnie objects to the trial judge’s use of the word “find” in the above passage and submits that it diminished the Carter requirement that the jury be satisfied beyond a reasonable doubt that Bonnie and Rochon had formed a common intention before considering such statements.
[68] I disagree. Early in his charge, after defining reasonable doubt, the trial judge said:
In the course of the charge I will be referring to the Crown proving or establishing something. Or I may refer to your making some finding or being satisfied with something. When I use these expressions, I mean, in all cases, proof beyond a reasonable doubt.
[69] On a broader plane, it is true that the component of the charge set out above does not track the precise language of Carter. However, in my view, it is very close. Moreover, importantly, from the examples the trial judge chose (e.g. the post‑offence conversation in Bradley’s backyard) and his language (“very, very careful” and “I cannot recall any of the evidence where she was present”), I cannot conclude that there was any risk that the jury misunderstood the use to which it could put Rochon’s statements to others which potentially implicated his mother.
(3) Joint issues
(a) Caution re evidence of Crown witnesses
[70] The Crown called as witnesses several of Rochon’s friends – Steven Loken, Shawn Bradley, Mike Joanis, Ken Hale, Steven Zetchus and Rebecca Jefferson – who were with him on July 26, 1993. Their testimony was, to varying degrees, crucial to the Crown’s case of first degree murder against Rochon. To a lesser extent, the testimony also implicated Bonnie McAuley.
[71] The appellants contend that the testimony of these witnesses was highly suspect and that the trial judge did not provide the jury with a sufficiently strong caution about accepting their testimony.
[72] The focal point of the appellants’ submission on this issue is the testimony of Steven Loken. He was a very good friend of Rochon and a co‑worker at a nightclub in Hull. He loaned Rochon his car and knew that Rochon and Sheppard intended to confront William McAuley. Loken was arrested and the police told him that they were considering charging him with first degree murder. Within a few hours, Loken provided a statement to police. He subsequently pleaded guilty to obstructing a police officer and received a sentence of probation for three years, 300 hours of community service and a $500 charitable donation.
[73] Loken testified at the preliminary inquiry and the trial. There were many inconsistencies among his initial statement to the police, his testimony at the preliminary inquiry and his trial testimony. In addition, he remembered important details that seriously implicated both Rochon and McAuley just before the trial. He also admitted that he was prepared to lie under oath.
[74] The appellants contend that in light of these problems, it was incumbent on the trial judge to deliver “a clear and sharp warning” about Loken’s testimony: see R. v. Vetrovec, [1982] 1 S.C.R. 811 at 831. The appellants submit that the trial judge failed to fulfil this responsibility.
[75] I disagree. The nature and strength of a warning about the testimony of a witness is very much a matter in the discretion of the trial judge: see R. v. Bevan, [1993] 2 S.C.R. 599 at 610‑12 and R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237 at 243‑44. Moreover, it is important to consider the adequacy of any warning in the context of the jury charge as a whole, and not simply by dissecting the warning portions of the charge: see R. v. Winmill (1999), 131 C.C.C. (3d) 380 at 405 (Ont. C.A.) and R. v. Harriott (2002), 161 C.C.C. (3d) 481 at 494 (Ont. C.A.), aff’d. 2003 SCC 5.
[76] Against the backdrop of these principles, I cannot say that the trial judge’s caution to the jury about Steven Loken was inadequate. The trial judge gave the jury the standard instruction about how to consider contradictory statements made by witnesses. In addition, on four occasions he provided cautions about Loken’s testimony specifically.
[77] In the general part of his charge, the trial judge singled out Loken and Bradley for special attention:
With reference to Steve Loken and Bradley, you should view their testimony with great caution and you should look for other supporting evidence before you adopt and accept their evidence. In this case you have the evidence of Rochon, who supports some of the evidence of the various witnesses that I have referred to. During the course of my discussions with you, I will attempt to refer to some of the supporting evidence when I review the evidence of the witnesses.
In other words, you have heard that Loken was charged and then the charges were reduced. You have to consider his evidence under those circumstances. But you will find ‑ ‑ at least my view is that you will find a lot of what Rochon says confirms what was told to these people. But that is for you to weigh and for you to consider.
[78] In the portion of his charge dealing with Rochon, the trial judge said:
Steven Loken ‑ ‑ you will recall the conversation that Loken alleges he had with Rochon who told Loken he was going to ask a friend about getting a gun to use on his stepfather. And I talked to you about exercising caution in some of these witnesses such as Loken. You can look to the other witnesses to see whether there is supporting evidence that confirms it, so that the particular conversation about getting a gun seems to tie in with what was said by the previous witness, Zetchus. You may recall him; he was the fence from the Citi Club. As far as Loken’s conversation, Rochon didn’t recall that.
Also, in considering the evidence of Loken, you have to remember that he was originally charged with conspiracy to commit murder. There were outstanding charges. He made a deal, I suppose, if you want to call it that, or plea bargain in a reduced charge. He got a fairly favourable sentence. You will have to consider whether that in itself taints his evidence at all.
[79] In the portion of the charge dealing with Bonnie, the trial judge said:
In considering Bonnie McAuley’s conduct, look, as well, at the conversation that Loken alleged took place on the balcony. I have already commented upon how you must look at his evidence with caution. But this conversation was the one where the alibi was being set up. Going to the movie was to be used as an alibi to cover her whereabouts while Rochon and Sheppard carried out the killing, or at least the assault on McAuley. This may be some indication of a common plan or common intention between the two of them to arrange for the death of William McAuley.
[80] In my view, these warnings about Loken’s testimony were sufficient. There were four different warnings, two of the warnings (the first and third) were particularly strong, and the trial judge coupled the warnings with some comment about potentially confirmatory evidence, as required by Vetrovec and its progeny.
[81] In addition, the trial judge provided specific warnings about the testimony of Shawn Bradley (see above) and Steven Zetchus:
Steven Zetchus was, you recall, the bouncer from Toronto. There was a warrant for his arrest. He admitted that he was a fence, what you would call one of those unsavoury characters, so you have to weigh his evidence very carefully and have to be very cautious about how you apply it. You should look for some other evidence to support what he says.
[82] In summary, the number, nature and strength of the warnings given by the trial judge about the testimony of several Crown witnesses, especially Steven Loken, complied with the requirements of the leading cases in this domain – Vetrovec, Bevan and Brooks.
(b) Reasonable doubt
[83] The appellants contend that the trial judge’s jury charge relating to reasonable doubt was inadequate. The charge was delivered in 1995 before the decision in R. v. Lifchus, [1997] 3 S.C.R. 320. The appellants point to three defects in the charge when compared to the model charge set out in Lifchus: first, the trial judge told the jury that “when I speak of reasonable doubt, I use the words in their ordinary and natural meaning, not as a legal term having some special connotation”; second, in addition to instructing the jury that a reasonable doubt is based upon reason and common sense, he ought to have instructed that it must be logically connected to the evidence or the absence of evidence; and third, the trial judge did not make it clear that the criminal standard of proof is substantially higher than the civil standard of proof.
[84] In R. v. Rhee, 2001 SCC 71, [2001] 3 S.C.R. 364, Arbour J. reviewed the Lifchus charge and subsequent cases in which it has been considered by the Supreme Court of Canada, including R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, R. v. Beauchamp, 2000 SCC 54, [2000] 2 S.C.R. 720, R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731 and R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745. She said, at pp. 375‑76:
Appellate review of a charge to the jury is not a mechanical task, but rather an assessment of whether the deficiencies in the charge, as compared to the Lifchus standard, cause serious concern about the jury’s verdict. However, the failure of such charges to reflect Lifchus principles “cannot be taken to raise by that alone the spectre of an unfair trial or miscarriage of justice” (Russell, supra, at para. 24). Rather, the key question to ask is whether the charge in question substantially complies with the principles expressed in Lifchus, so that, as a whole, it does not give rise to the reasonable likelihood that the jury misunderstood the correct standard of proof.
[85] Based on my review of the trial judge’s jury charge, I do not conclude that it gave rise to a reasonable likelihood that the jury misunderstood the correct standard of proof. Indeed, although the charge does contain the three defects alleged by the appellants, there are many cases in which jury charges containing these defects have been upheld: see for example, R. v. Rhee, supra; R. v. Feeley, 2003 SCC 7; R. v. Tavenor (2001), 140 O.A.C. 78; R. v. Satkunananthan (2001), 152 C.C.C. (3d) 321 (Ont. C.A.); R. v. Phillips (2001), 154 C.C.C. (3d) 345 (Ont. C.A.); R. v. Varga (2001), 159 C.C.C. (3d) 502 (Ont. C.A.); and R. v. Van Nguyen (2002), 161 C.C.C. (3d) 433 (Ont. C.A.).
[86] In my view, the trial judge delivered a well‑organized and well‑worded jury charge following a long and difficult trial. The components relating to the presumption of innocence and the assessment of the credibility of witnesses were accurate and are important contextual points when considering the charge on reasonable doubt.
[87] In summary, based on my review of the trial judge’s jury charge and my understanding of the similar cases listed above, I reach the conclusion that the component of the trial judge’s charge relating to reasonable doubt complies with the test set out in Rhee.
E. DISPOSITION
[88] I would dismiss the appeals.
RELEASED: April 8, 2003 (“JCM”)
“J. C. MacPherson J.A.”
“I agree Janet Simmons J.A.”
“I agree E. E. Gillese J.A."
[^1]: Mr. Sheppard also appealed his conviction, but he has died.