DATE: 20040831
DOCKET: C38258, C38259 & C38260
COURT OF APPEAL FOR ONTARIO
ROSENBERG, FELDMAN and SHARPE JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Ian D. Scott for the appellant
Appellant
- and -
Frank Addario and Vanora Simpson for
ERIC BIGRAS, SHAWN LACROIX AND SHAUN CULLEY
the respondent Bigras
Respondents
Susan Mulligan for the respondent Lacroix
Bruce Engel for the respondent Culley
Heard: June 28, 2004
On appeal from the directed verdicts of acquittal of Justice G. Morin of the Superior Court of Justice dated April 26, 2002.
SHARPE J.A.:
[1] The respondents were tried before a judge and jury on the charge of first-degree murder and forcible confinement. Another individual, Jason Onraet, was charged with forcible confinement and manslaughter. The trial judge granted a directed verdict, acquitting the respondents of both first and second-degree murder and left the included offences of manslaughter and forcible confinement with the jury. The jury returned a verdict of guilty on both charges against the respondents and a verdict of forcible confinement against Onraet.
[2] The Crown appeals the directed verdicts, asks that the verdicts at trial be set aside and that a new trial be directed on first-degree murder. For the following reasons, I agree with the Crown’s submission and would allow the appeal.
[3] The Crown presented evidence at trial that the three respondents and another individual: (1) laid in wait at the residence of the deceased, Stéphane Cleroux; (2) assaulted him; (3) took him to a remote cabin where he was further assaulted, and; (4) left him dead or dying in circumstances in which it was highly unlikely that he could secure help.
[4] The Crown’s evidence indicated that the respondents’ attack on Cleroux was in retaliation for a robbery and brutal beating he had administered to Bigras. The respondents and a group of their friends feared further violence and trouble from Cleroux and his associates. There was also evidence that Cleroux had identified Culley as a possible target. On December 2, 1999, a group of ten to fifteen people who feared Cleroux, including Bigras and Culley, decided that he had to be stopped. That same day, Culley called Stéphane Larivière and told him that he needed a place to take someone for a while.
[5] The respondents went to Cleroux’s house with a fourth individual. There were other witnesses present. The respondents waited for Cleroux to come home. Bigras had a taser (a weapon that delivers electric shocks) that he intended to use on Cleroux. There was evidence that when Cleroux arrived, there was a struggle. Lacroix used the taser on Cleroux but it had no effect. The Crown had no evidence of who actually assaulted Cleroux at this point, but there was evidence that Lacroix kicked Cleroux. A witness, who had called 911, testified that on the evening of the assault she saw a person wrapped in a blanket being carried out of the house. Police officers who attended the scene found damage to the interior of the house and blood stains suggesting a violent confrontation. They also found a roll of clear packing tape near Cleroux’s bloodied clothing. DNA testing showed the blood to be that of Cleroux.
[6] Stéphane Larivière was not charged and was called as a Crown witness. He testified that Culley picked him up and took him to a parking lot near Cleroux’s house. He came upon Cleroux lying on the ground near the house with Lacroix nearby. Larivière either punched or kicked Cleroux in retaliation for a previous threat Cleroux had made on his life. He then picked Cleroux up and took him to Bigras’ car. Larivière testified that he and Bigras drove Cleroux to a remote and isolated cabin forty-five minutes outside Ottawa. He stated that he was the only one who knew where they were going. Onraet and Culley followed them in a different car. Upon arriving outside the cabin, Larivière testified that he punched or kicked Cleroux in the head a couple of times with considerable force. The blows to his head were severe. Larivière testified: “I gave him what I could”. He agreed that he might have hit Cleroux with all the force he could muster and that he was not holding anything back. The respondents kicked in the cabin door, took Cleroux inside, and put him on the table. Larivière went in a few minutes later and again punched Cleroux.
[7] Several months later, some parts of Cleroux’s body were found in the woods near the cabin in circumstances suggesting that animals had ravaged his corpse. There was packing tape and a knotted electrical cord on Cleroux’s left arm. Blood stains were found in the cabin and in Bigras’ car. The medical evidence indicated that the cause of death was basal skull fractures and a subdural hematoma to the brain. The pathologist testified that the likely cause of the injuries was one or more blows to the facial area delivered with a heavy punch or kick or with the use of a heavy object.
[8] Evidence was led as to statements made by the respondents after the attack on Cleroux. According to one witness, Bigras told him the day after the attack: “It’s finished. The guy was beat up. That’s it…teach the guy a lesson.” Bigras also said “You wouldn’t have wanted to be in this place.” Culley told the same witness: “It’s finished” and “We punched him out.” In intercepted phone conversations, in which Lacroix discussed the incident with his grandmother, Lacroix appeared to agree with his grandmother’s suggestion that it would be better to lie and say they were taking Cleroux to his mother’s house rather than the cabin. From another intercepted conversation, there was evidence that could be interpreted as Lacroix stating that he was glad that Cleroux had died.
[9] The respondents moved for a directed verdict on the murder charges on the ground that while there was evidence that they had beaten Cleroux to “teach him a lesson”, there was no evidence from which a jury could find the requisite intention to kill him. The trial judge accepted that submission. He ruled that there was ample evidence upon which a properly instructed jury could conclude “(a) Mr. Cleroux had been unlawfully confined; (b) Mr. Cleroux suffered a beating that caused his death; and (c) that all of the accused were parties to the offence and criminally responsible within the meaning of s. 21 of the Code.” However, he ruled that the Crown had failed to lead evidence from which the jury could find the requisite intent for murder.
[10] It is common ground that the trial judge properly instructed himself in law. He correctly stated the requisite mental element for second degree murder and applied the test from United States of America v. Sheppard, [1977] 2 S.C.R. 1067, stating: “is there any evidence upon which the jury, properly instructed, could reasonably infer that each of the accused had the state of mind required for murder, that is, that each of the accused meant to cause him bodily harm that he knew was likely to cause his death, and was reckless whether death ensued or not?” He cautioned himself that “it is not my function to weigh the evidence but, rather, to determine the reasonableness of the inference that the Crown seeks to draw from that evidence.” The trial judge commented that the evidence fell short of revealing “a complete picture of what occurred on the evening and morning in question.” He concluded, however, that on the evidence that had been led, “there were no words spoken by any of the accused which, by themselves, or in the context of all of the evidence, could reasonably support an inference that the accuseds intended to kill Mr. Cleroux or meant to cause him bodily harm which they knew would likely kill him.” He added that there was no evidence of anything said on the way to the cabin or at the cabin “that would speak to the accused’s intentions in bringing Mr. Cleroux there.” The trial judge also found that there was nothing “about the conduct of the accuseds, as described by the Crown witnesses, from which it could be reasonably inferred that they intended to cause him such bodily harm as would likely kill him.” He concluded that on the basis of the evidence, the jury could only find the requisite state of mind for murder “as a result of unlawful speculation and not as the result of lawful inference” (citing R. v. Baptiste, [2000] O.J. No. 1644 (S.C.J.).
[11] I am unable to agree with the trial judge’s ruling. Despite the fact that he appears to have correctly instructed himself on the law, in my view, on the evidence before him, he could only have arrived at the conclusion he reached by engaging, to an impermissible degree, in weighing the evidence and usurping the function of the jury. The following passage from R. v. Monteleone (1987), 35 C.C.C. (3d) 193 at 198, per McIntyre J., is apposite:
Where there is before the court any admissible evidence, whether direct or circumstantial which, if believed by a properly charged jury acting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of the trial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury.
[12] Despite the absence of evidence of words spoken by any of the accused regarding their intentions with regard to the victim, there was evidence of conduct from which their intentions could be inferred.
[13] To survive the motion for a directed verdict of acquittal to second degree murder pursuant to s. 229(a)(ii), the Crown had to lead evidence from which a properly instructed jury could reasonably infer that each of the respondents intended to cause Cleroux bodily harm that he knew was likely to cause Cleroux’s death and that he was reckless whether death ensued or not. In my view, there was evidence from which a properly instructed jury could reasonably infer that mental state.
[14] I point to the following facts that, in my view, taken cumulatively, could provide a reasonable basis for the inference of the requisite intention for second-degree murder:
(1) Cleroux was bound with tape and an electric cord, leaving him defenceless to the blows that were administered to his head.
(2) The fatal injuries were not the product of an unprovoked or spontaneous outburst of violence and there was considerable evidence of a planned and deliberate attack.
(3) There was evidence from which the jury could infer that the respondents collectively decided to pay Cleroux back for his attack on Bigras and to prevent him from causing further trouble.
(4) They waited for Cleroux to return to his residence and then set upon him.
(5) The respondents took Cleroux to a remote location on a December night and left him alone, bound and severely beaten, either dead or dying, without hope of rescue from the consequences of his injuries or from the elements.
[15] The trial judge’s reasons indicate that he failed to weigh in the balance what was perhaps the most telling evidence against the respondents. Not only were they parties to the beating on Cleroux: they left him, bound and either dead or dying, in a remote location near Ottawa on a December night in circumstances in which help was unlikely to come his way and would be difficult if not impossible to summon.
[16] In my view, given the trial judge’s proper finding that the jury could find the respondents all to be parties within the meaning of s. 21 to forcible confinement and the unlawful assault, it matters not that the Crown’s evidence pointed to Larivière as the source of the lethal blows. The respondents participated in the forcible confinement of Cleroux that enabled Larivière to punch and kick Cleroux in the head. From their continued participation in the attack on Cleroux from the time it started at his house until it ended at the cabin, by keeping him bound and confined and by taking him to the cabin where Larivière repeated his attack, the jury could infer that they were willing participants with the requisite intention for second degree murder.
[17] I conclude, accordingly, that the trial judge erred in directing an acquittal to the charge of second-degree murder.
[18] With respect to first-degree murder, the Crown relies upon two theories. First, the Crown argues that the jury could have convicted the appellant of first-degree murder on the basis of s. 231(5)(e). This section defines first-degree murder as occurring “when the death is caused by that person while committing or attempting to commit” the offence of forcible confinement. The respondents were convicted of forcible confinement. To sustain a conviction for first-degree murder under this provision, the words “caused by that person” require that the Crown must prove “that the accused has committed an act or series of acts which are…a substantial and integral cause of the death” and “that the accused play a very active role – usually a physical role – in the killing.” See R. v. Harbottle, (1993), 84 C.C.C. (3d) 1 (S.C.C.) at 13. The evidence indicated that Larivière, not any of the respondents, inflicted the blows to the victim’s head. However, he did so while the respondents were actively engaged in binding and confining Cleroux. In Harbottle, supra, it was held that an accused, who held the legs of the victim while she was strangled by his co-accused, was guilty of first degree murder as it was “difficult to believe that [the co-accused] could have strangled her in the absence of assistance of Harbottle.” While it would be important to instruct the jury on the stringent causation test arising under this provision, in my view, there was evidence from which a reasonably instructed jury could infer it.
[19] The second basis for first-degree murder offered by the Crown is that there was evidence from which the jury could infer that the fatal beating of Cleroux was planned and deliberate within the meaning of s. 235(2). I agree with this submission. In R. v. Nygaard and Schimmens (1989), 51 C.C.C. (3d) 417, the Supreme Court of Canada held that the mental state described in s. 235(2) is not incompatible with planning and deliberation and that planning and deliberation to cause bodily harm which is likely to be fatal may satisfy the mental element for first degree murder. In the case at bar, the jury could infer planning and deliberation from the evidence as a whole which, as I have indicated, suggested a plan to confront Cleroux as a gang, to bind him, to beat him, and to take him to a remote location where he was left alone, dead or dying without hope or rescue. Accordingly, I conclude that the trial judge erred in directing a verdict of acquittal on the charge of first-degree murder.
[20] I conclude that although the Crown’s case for first or second degree murder as opposed to manslaughter was not overwhelming, and that it would require very close scrutiny from the trier of fact, there was evidence from which a properly instructed jury could reasonably infer the requisite element of mens rea to support a verdict of guilty to both second and first and murder.
[21] For these reasons, I would allow the appeal, set aside the verdicts at trial and direct a new trial on the charge of first-degree murder.
[22] In view of the conclusion I have reached on the Crown’s appeal, it is not necessary for me to deal with Culley’s sentence appeal.
“Robert J. Sharpe J.A.”
“I agree M. Rosenberg J.A.”
“I agree K.N. Feldman J.A.”
Released: August 31, 2004