DATE: 20050706
DOCKET: C37897
COURT OF APPEAL FOR ONTARIO
LABROSSE, SHARPE and LANG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Michael W. Lacy and Vincenzo Rondinelli for the appellant
Respondent
- and -
GRANT WARREN BEAUCAGE
Howard Leibovich for the respondent
Appellant
Heard: June 29, 2005
On appeal from the conviction entered by Justice Christopher M. Speyer of the Superior Court of Justice, sitting with a jury, on December 14, 2000.
BY THE COURT:
[1] The appellant appeals his conviction for first degree murder entered by Speyer J. sitting with a jury. He was sentenced to life imprisonment, without eligibility for parole for 25 years.
[2] The victim was the appellant’s ex-wife. They married in 1985 and divorced in 1989. They had two children. Despite their divorce, they maintained close contact and the appellant divided his time between Burlington, where the victim lived with the children, and Kingston, where the appellant resided with friends.
[3] The victim was last seen alive by a co-worker at approximately 1:45 p.m. on Tuesday, February 22, 1994, as she left the Burlington Animal Hospital where she worked. At approximately 6:22 p.m., her body was discovered in her Buick Century in the parking lot of a nearby Super Centre. She had been stabbed some thirty times in the neck, chest and back. There was no indication of a robbery or sexual assault. The Crown’s position was that the victim was killed between the time she left work at approximately 1:45 p.m. and 2:08 p.m., some three hours before the appellant used the victim’s bank card in Kingston.
[4] The central issue at trial was the identity of the murderer. The case against the appellant was circumstantial with the Crown relying upon evidence of motive, evidence linking the appellant to the murder and after-the-fact conduct indicative of guilt.
[5] The evidence pertaining to motive related to:
The victim’s relationship with a new boyfriend, beginning in November-December 1993. In early February 1994, the victim told the appellant that their relationship was over for good and that she had found someone else. There was evidence that the appellant was quite disturbed by this event;
The appellant had no stable employment and his income was derived primarily from gambling and from sports lotteries. The victim was in financial difficulty with due and overdue bills and pressing him to provide her with assistance to pay their family debts. He lied to her about his source of income, and about his promises to provide her with assistance; and
There was a $200,000 life insurance policy that the appellant and the victim had purchased shortly before her death, payable to the survivor of them.
[6] The evidence linking the appellant to the murder included:
The appellant had a scratch or cut on his face and he admitted that it was his DNA found under the victim’s fingernails;
The appellant admitted that the victim had scratched his face but testified that this occurred in the early morning before the murder, when he had traveled from Kingston to Burlington in the middle of the night to discuss financial matters with the victim and an argument ensued;
The victim’s statements to the effect that the appellant had not returned to Burlington at the time he asserted she had scratched his face;
No one who saw the appellant on Tuesday morning noticed a scratch on his face but the scratch was observed on the appellant’s face after the murder; and
The eyewitness identification of an employee of a Harvey’s restaurant located in the plaza adjacent to the parking lot where the victim’s body was discovered, who claimed to have served the appellant in the afternoon of Tuesday, February 22.
[7] The after-the-fact conduct included:
The appellant attempted to conceal the scratch on his face;
The appellant changed his appearance, assumed a false name and absconded to Las Vegas before his trial, while on bail. As a result of his failure to appear at his trial, $34,000 of the $50,000 bail money put up by family members was forfeited; and
When apprehended on an unrelated matter in Las Vegas, the appellant gave a false name.
[8] The appellant testified and denied any involvement in the victim’s death. However, the appellant lied on numerous occasions and his testimony contained many inconsistencies and admitted lies. While the appellant advanced an alibi, it was supported only by his own evidence and no one could verify his whereabouts in Kingston on the day of the murder during the crucial hours of 10:30 a.m. when he was last seen in Kingston, and 5:08 p.m. when he made a transaction at a banking machine in Kingston. There was evidence that the driving time between Kingston and Burlington was approximately 2 hours and 50 minutes. This would afford the appellant the opportunity to travel to Burlington, murder the victim, and return to Kingston, between 10:30 a.m. and 5:08 p.m.
[9] The appellant raises grounds of appeal with respect to the following: 1) eyewitness identification evidence; 2) hearsay evidence; 3) discreditable conduct evidence; 4) collateral evidence; 5) consciousness of innocence; and 6) the autopsy photographs.
1) Identification evidence
[10] On February 22, 1994, the day of the murder, Mary Bourbeau was working at the Harvey’s restaurant adjacent to the murder scene. On February 28, she was shown a photograph of the appellant and another photograph of two vehicles by P.C. Collins. She identified the man in the photograph as someone she had served mid-day on February 22. She described him as a man with reddish-orange, short, wavy, curly hair, with a moustache and a fresh cut on his right cheek. Bourbeau described the cut as a little deeper than a scratch. She also testified that the appellant was wearing a plain wedding ring and a blue zippered fall jacket. At the time she served him, the restaurant was steady, not busy, and the appellant was rude and nervous.
[11] As to the other photograph, one of the cars was a Buick. She stated that she had seen the Buick in the parking lot at 10:40 a.m. and she saw the vehicle again when she left to go home at 3:00 p.m.
[12] The appellant points to numerous frailties in the identification evidence including the following:
Officer Collins showed Bourbeau a single photograph of the appellant, not a proper photo-lineup;
The appellant does not have “reddish-orange hair”, the hair colour Bourbeau describes as that of the man she served;
The photograph Bourbeau was shown has a reddish tint showing the appellant’s hair as being redder than it appears in other contemporaneous photographs taken by the police;
Bourbeau has a learning disability;
Bourbeau described the man as wearing a wedding ring and a blue jacket. The appellant did not wear a wedding ring and no blue jacket was found;
The man the appellant served was a stranger that she observed for a short period of time during the busy noon hour rush;
Bourbeau estimated the time to be 12:00 p.m. to 12:30 p.m. when she served the appellant, which would not have given the appellant enough time to arrive from Kingston; and
The victim’s Buick could not have been in the parking lot at 10:40 a.m., as the victim was still at work at this time.
[13] In oral argument, the appellant more or less abandoned the submission made in his factum that the trial judge erred by admitting the identification evidence as there was no objection to the admission of the evidence at trial. The appellant’s central submission on this appeal, forcefully advanced by Mr. Lacy, is that the trial judge failed to adequately warn the jury of the frailties of the identification evidence. Particular emphasis was placed on faulty photo procedure and Bourbeau’s description of the man’s hair colour as being reddish-orange.
[14] We note, on the other hand, that there was one significant feature of Bourbeau’s evidence that tended to support her identification of the appellant. She described the man she served as having a mark on his face deeper than a scratch. We do not accept the submission that the trial judge unfairly minimized the importance of Bourbeau’s evidence that the photo showed a mark on the appellant’s face. In our view, the trial judge quite appropriately left this feature of the identification to the jury with a verbatim quotation from Bourbeau’s evidence on the point and the photograph itself as an exhibit.
[15] Some of the other alleged frailties were perhaps not as serious as alleged by the appellant. There was no suggestion that Bourbeau’s learning disability impaired her powers of observation. Although she said that she served the man during the noon hour, she repeated three times that she was not sure when the man had arrived at the restaurant. With respect to hair colour, there was some red in the appellant’s moustache, and in any event, the jury had the photographs from which, as the trial judge carefully explained, they could form their own conclusion. Also significant is the fact that in response to defence counsel’s pre-charge submissions, the trial judge gave a stronger caution than he had originally intended, and at the conclusion of the charge, defence counsel did not object.
[16] We have carefully reviewed the trial judge’s instruction on Bourbeau’s evidence in light of its apparent frailties. While it certainly would have been possible - perhaps even preferable – to have given a stronger caution, in the end, we are not persuaded that the instruction was not sufficient in the circumstances of this case to ensure the fair trial rights of the accused. We certainly do not agree with the submission that the identification evidence was so weak as to require its outright exclusion or something approaching a no probative value instruction.
[17] In particular, we note the following features of the charge which in our view, were sufficient, in the circumstances of this case, to bring home to the jury the dangers inherent in Bourbeau’s evidence:
The trial judge gave a very clear and appropriately strong “boilerplate” warning as to the dangers of eyewitness identification evidence;
The trial judge gave a very detailed and balanced review of Bourbeau’s evidence, carefully listing all of the contentious points and explaining, item by item, the weaknesses in Bourbeau’s evidence and the discrepancies between her description and the evidence relating to the appellant, including hair colour, the wedding ring and blue jacket, the time, and her claim to have seen the victim’s car before noon when she arrived for work;
The trial judge instructed the jury that the procedure followed by Officer Collins relating to the photograph “taints the fairness of the identification process”, that “this method of identification tends to be unreliable” and cautioned the jury “about the dangers with respect to the procedure that was utilized in this case”; and
The trial judge instructed the jury that the fact that Bourbeau did not know the appellant was a factor that weakened the reliability of her evidence.
[18] There were certainly frailties in the identification evidence, but there was also evidence that was relevant and probative and it was for the jury to assess the quality of the evidence. The weaknesses in the evidence were fully exposed and the trial judge provided the jury with the necessary tools to properly assess the evidence on their own. Accordingly, we would not accede to this ground of appeal.
2) Hearsay evidence
[19] This issue deals with the admission of court statements made by the victim to the effect that (1) the appellant had not returned to Burlington on Monday night, and (2) that she was expecting him in Burlington on Tuesday afternoon. The trial judge admitted category (1) under the principled exception to the hearsay rule and category (2) under the traditional hearsay exception relating to present intentions.
[20] The appellant concedes that the category (1) hearsay statements were relevant to the issues of alibi and opportunity to commit the murder and that they met the principled approach of necessity and reliability. However, it is submitted that some of the category (1) statements and all of the category (2) statements should have been excluded on the basis that their prejudicial effect outweighed their probative value. The appellant also submits that the trial judge misdirected the jury in his instructions dealing with the present intentions exception to the hearsay rule.
[21] With respect to the category (1) statements, the appellant objects to the number of witnesses who testified as to the statements made by the victim, which according to the appellant, increased the risk of prejudice. We see no merit in this submission. At trial, the defence quite properly sought to undermine the reliability of the witnesses’ recollections of their conversations with the victim. It is only common sense that a number of witnesses who had similar conversations made the tendered evidence more reliable, and thus, more probative.
[22] With respect to the category (2) statements relating to the victim’s present intention, the appellant submits that it was impossible to leave that evidence with the jury without inviting the jury to use the evidence improperly to infer the appellant’s present intention and that the prejudicial effect of this evidence outweighed its probative value. We do not agree. First, the trial judge gave the jury a strong and precise instruction that they were not permitted to use the victim’s statements as evidence of the appellant’s intentions. Second, R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.) at para. 181 contemplates the admission of statements of intention which refer to intentions of persons other than the declarant, “if the trial judge clearly restricts their use to proving the declarant's intentions, and if it is more probative than prejudicial.” Third, the prejudicial effect of this evidence was minimal in the circumstances of this case. The appellant admitted to having had a fight with the deceased and that she scratched his face. On the evidence, there were only two possibilities – she either scratched him on Monday night or early Tuesday morning as he asserted, or she scratched him on Tuesday afternoon. Once her statements that the appellant did not return on Monday night were admitted, evidence of his intentions regarding Tuesday did not materially add to the Crown’s case.
[23] The appellant complains that in his instructions to the jury, the trial judge erred with respect to the use the jury could make of the evidence of the victim’s present intentions. The trial judge divided the evidence into two groups: a) the statements made by the victim to her co‑workers; and b) the statements to her mother, new boyfriend and cousin. The trial judge specifically warned the jury that they could not rely on the statements made by the victim to the second group to infer the appellant’s intentions or past acts, but did not give a similar warning with respect to the first group, despite the fact that one witness in that group, Catherine Lennon, also testified that the victim stated that she expected to meet the appellant on Tuesday. We agree that in this one respect, the trial judge erred. However, we do not view that error as being sufficiently serious to amount to reversible error. First, there was no objection made on this point at trial. Second, the jury likely would have understood that the strong caution the trial judge gave on the use of present intention evidence logically had to apply to Lennon’s evidence just as it did to the evidence of the witnesses in the second group. Finally, as we have already mentioned, once the Crown led evidence that the appellant did not return on Monday, evidence as to his intentions for Tuesday was of relatively little import. We are not persuaded that this minor error could have had an effect on the outcome.
[24] We note that no objection was made at trial with respect to the hearsay statements. In our view, the probative value of this evidence clearly outweighed its prejudicial effect. There was no realistic risk that the evidence would render the trial unfair, mislead the jury or be misused by the jury.
3) Discreditable conduct evidence
[25] Prior evidence of the appellant’s conduct was admitted involving the sale of drugs, gambling, operating an illegal booze can, the suspension of his licence as an insurance salesperson, and leaving his family while his wife was pregnant. The appellant submits that the trial judge did not go far enough in his instructions to fully address the possible misuse of discreditable conduct.
[26] The trial judge ruled that this was important evidence for the jury to know in the context of motive, and relevant to the manner in which he earned his living, and to the lies that he conveyed to the victim with respect to paying the family debts. The trial judge made it clear that the jury could not reason that because of that conduct, the appellant was the type of man who would commit the offence of murder. While the trial judge failed to give the usual warning that the jury should not punish the appellant for past misconduct, we do not regard this oversight as sufficiently serious to warrant appellate intervention. No objection was made at trial on this issue. The real risk here was that of improper propensity reasoning and the jury was properly cautioned on that score. The jury would have been fully aware of the gravity of a charge of first degree murder, and in our view there was no risk that in the circumstances of this case, the jury could have returned a verdict of guilt on that charge to punish the appellant for these considerably less serious transgressions.
4) Collateral evidence
[27] Jose Fernando Pereira gave evidence about whether he owed money to the appellant and whether arrangements had been made to meet the appellant in the late afternoon of Tuesday, February 22.
[28] The trial judge admitted this evidence on the basis that the appellant was attempting to secure money on the day of the murder because of pressure by the victim to pay family debt.
[29] The appellant argues that the evidence of Pereira was collateral, and was admitted primarily to undermine the appellant’s credibility. We do not agree. The evidence of Pereira was not collateral. It contradicted the appellant’s testimony on the point that he did not owe the appellant money and it also undermined the appellant’s alibi as it showed, if accepted, that the appellant had no reason to drop by his house early on February 22,and that he never promised to give the appellant any money.
[30] No complaint was made at trial on this issue. We see no error.
5) Consciousness of innocence
[31] It is submitted that the trial judge erred in not allowing evidence of the appellant’s offer to the police to take a polygraph test.
[32] The trial judge concluded that the offer had little value since the appellant, while he initially agreed to take a polygraph, changed his mind the next day after he was arrested. The trial judge concluded that this change of position detracted from the probative value of the evidence. We see no error. We add that the trial judge gave a detailed instruction on after-the-fact conduct that tended to show that the appellant cooperated with the police and that his conduct was consistent with innocence.
6) The autopsy photographs
[33] At trial, fourteen autopsy photographs were entered as exhibits through the testimony of the coroner. The appellant objects to the admission of one photograph depicting the victim’s fatal wounds in particularly gruesome detail.
[34] The trial judge admitted the photograph on the basis that it helped the jury to understand the nature of the attack on the victim. The degree of violence inflicted on the victim supported the Crown theory that this was a brutal murder fuelled by passion and anger. Furthermore, the trial judge, immediately prior to the photographs being entered as exhibits, cautioned the jury about their nature and told them not to try this case in an emotional manner. In our view, there was no risk that the jury would have been inflamed by the photograph.
[35] In our view, the trial judge balanced the probative value of the photograph against its prejudicial effect and there is no basis to interfere with the exercise of this discretion.
[36] As in many criminal jury trials, it can be argued that more could have been said by the trial judge in his instructions to the jury. However, overall, the trial judge’s charge was fair and balanced and dealt adequately with all issues raised on this appeal.
Conclusion
[37] The focus of the attack on this conviction relates to the issue of identification evidence. As we have already stated, the trial judge could have, and perhaps should have, given a stronger warning to the jury in that regard. We have also referred to the minor error regarding hearsay evidence. However, we are not persuaded that these constitute reversible errors. Moreover, in all other respects, the trial judge’s instructions to the jury were a model of clarity and fairness. We add that quite apart from the identification evidence, the Crown presented a powerful circumstantial case against the appellant. It included the following evidence:
The state of the relationship between the appellant and the victim;
The fact that the victim had a new boyfriend;
The pressure on the appellant to pay family debts;
The scratch on the appellant’s right cheek;
The evidence of the appellant’s DNA on the victim’s fingernails;
The improbability of his story that he had come to Burlington at 3:00 a.m. to tell the victim that he did not have the promised money to pay the family debts;
Persons who saw him in Kingston on the morning of the murder did not notice the scratch;
Persons who saw him later that day did see the scratch;
The appellant’s attempt to hide the scratch with makeup;
The absence of anyone who could confirm his presence in Kingston between 10:30 a.m. and 5:08 p.m. on the day of the murder and the absence of any record at Tim Horton’s that he had purchased tea as he claimed during the afternoon;
The appellant’s admitted or proven lies; and
The appellant’s flight days before his trial was to begin.
All these pieces of circumstantial evidence contributed to form a web around the appellant that leads us not to doubt the correctness of the verdict.
[38] Accordingly, the appeal is dismissed.
Released: July 6, 2005
JML
Signed: “J.M. Labrosse J.A.”
“Robert J. Sharpe J.A.”
“S.E. Lang J.A.”