Her Majesty the Queen v. McNeil [Indexed as: R. v. McNeil]

84 O.R. (3d) 125

Court of Appeal for Ontario,

Doherty, Laskin and Borins JJ.A.

October 6, 2006

Criminal law -- Murder -- First degree murder -- Murder in course of forcible confinement or planned and deliberate killing -- Accused convicted of first degree murder of estranged wife's lover by shooting him -- Crown's case that accused driving several hours to home of estranged wife's lover then intentionally shooting lover before assaulting wife and attempting to burn down lover's home -- Trial judge using standard jury instruction on causation for first degree murder including that accused's acts must be proven to be "essential, substantial and integral part" of killing -- Accused claiming that deceased killed unintentionally while he and his wife struggling for gun and that instruction may have led jury to convict him if he took active part of struggle leading to discharge of gun or it may have confused jury as instruction removed from facts -- Instruction on causation confusing as appeared to link causation to unlawful confinement and bearing no relationship to evidence -- Preferable to adapt standard instructions to live issues -- Causation straightforward on evidence requiring that Crown prove that accused intentionally shooting lover -- Charge to jury regarding intent required for murder clear and correct -- No prejudice as result of causation instruction -- Jury's verdict demonstrating that it was satisfied beyond reasonable doubt that accused intentionally shot deceased with requisite intent for murder -- Appeal from conviction for first degree murder dismissed.

The accused was charged with arson, the attempted murder of his estranged wife M, and the first degree murder of M's housemate G. The accused made the eight-hour trip to G's home, driving through the night and taking at least one loaded handgun and two cans full of gasoline. He entered the home unannounced. There was evidence that he and G scuffled and that the accused eventually pointed a gun at G and ordered him to sit on the couch. M came out of the bedroom when she heard the scuffling. According to M, the accused pointed the gun at her and G, shot G and then struck her repeatedly with the gun. She played dead, and the accused left and then returned with gasoline, which he spread around and set on fire. According to the accused, he drove through the night because he was concerned that M had taken one of his guns with her. He claimed that he struggled with M for possession of the gun, that G was struck accidentally when the gun discharged, and that he had no memory of what happened after he started to hit M with the gun. The trial judge instructed the jury that if it was satisfied beyond a reasonable doubt that the accused had murdered G, it could convict him of first degree murder if satisfied beyond a reasonable doubt that the murder of G was planned and deliberate under s. 231(2) of the Criminal Code, R.S.C. 1985, c. C-46, or that the murder was committed while the accused was forceably confining G under s. 231(5). The accused was convicted on all three counts. He appealed the conviction for first degree murder.

Held, the appeal should be dismissed.

In instructing the jury on s. 231(5) of the Code, the trial judge stated that it was an essential part of the offence that the accused "did something that was [page126] an essential, substantial, and integral part of killing [G]. That is the unlawful confinement of [G] at gunpoint." These instructions followed the language of the standard charge on causation in the context of first degree murder but, given the evidence in this case, it may have confused the jury. The model instructions may be modified to fit the live issues in a trial. The live issue regarding causation was whether the accused shot G intentionally, or accidentally during a struggle for the gun. The reference to causation under s. 231(5) as requiring proof that the accused's conduct played an "essential, substantial, and integral" part in the killing was potentially confusing since it bore no relationship to the evidence relevant to causation heard by the jury. By seemingly connecting the causation requirement with the unlawful confinement requirement, the trial judge's instructions may have added to the confusion. However, the accused suffered no prejudice as the result of the causation instruction. The trial judge repeatedly instructed the jury correctly regarding the intention required to convict of murder and there is no reasonable possibility that they could have convicted the accused of first degree murder despite concluding that the shooting was accidental. The jury's verdict reflected a finding beyond a reasonable doubt of the necessary intent and foreclosed a finding that the accused was prejudiced by any confusion that may have been engendered by the causation instruction as it related to s. 231(5).

APPEAL by the accused from convictions entered by Boissonneault J. of the Superior Court of Justice, sitting with a jury, dated November 21, 2002.

Cases referred to

R. v. Harbottle, 1993 71 (SCC), [1993] 3 S.C.R. 306, [1993] S.C.J. No. 58, 157 N.R. 349, 84 C.C.C. (3d) 1, 24 C.R. (4th) 137; R. v. Nette, [2001] 3 S.C.R. 488, [2001] S.C.J. No. 75, 96 B.C.L.R. (3d) 57, 205 D.L.R. (4th) 613, 277 N.R. 301, [2002] 2 W.W.R. 1, 158 C.C.C. (3d) 486, 46 C.R. (5th) 197, 2001 SCC 78, 16 M.V.R. (4th) 159

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 231 (2), (5) [as am.]

Authorities referred to

Madge, N., Summing Up -- A Judge's Perspective, [2006] Crim. L.R. 817 Watt, David, Ontario Specimen Jury Instructions (Criminal) (Toronto: Thomson Carswell, 2003)

Gregory Lafontaine and Vincenzo Rondinelli, for appellant. Eric Siebenmorgen, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: --

I

[1] The appellant was convicted on three charges:

-- the first degree murder of George Graves; [page127]

-- the attempted murder of Cathleen McNeil; and

-- arson.

The charges arose out of events that occurred on September 12, 2000.

[2] The appellant was sentenced to life imprisonment without eligibility for parole for 25 years on the first degree murder charge, ten years concurrent on the attempted murder charge, and eight years concurrent on the arson charge.

[3] Counsel for the appellant advanced numerous grounds of appeal in his factum. Counsel focused the appeal during oral submissions on several alleged errors in the trial judge's instructions to the jury. The court required argument from the Crown on only one of the alleged errors. That ground of appeal arose out of the trial judge's instructions on s. 231(5) of the Criminal Code, R.S.C. 1985, c. C-46. These reasons will address that ground of appeal.

II

[4] A brief overview of the narrative will suffice. The appellant and Cathleen McNeil were married. They separated in August 2000 and Ms. McNeil took up residence in a small town in northern Ontario with Mr. Graves. Their relationship was initially platonic, but by September 12, 2000, appeared to have developed into something more than that.

[5] The appellant and Ms. McNeil spoke regularly on the telephone after their separation. There seemed to be some possibility of reconciliation, at least in the days immediately after the separation.

[6] On September 11, 2000, the appellant drove through the night from his home to Mr. Graves' home. The trip took about eight hours. The appellant had at least one loaded handgun with him on the trip and was also carrying two cans full of gasoline. Neither Ms. McNeil nor Mr. Graves knew that the appellant was coming to the Graves' home.

[7] The appellant arrived at the Graves' home in the early morning hours of September 12. He slept in his car a short distance from the house. At about 5:30 a.m., he awoke and drove up to the home. He saw Mr. Graves' car outside. According to the appellant, he thought Mr. Graves would be at work and assumed when he saw the car that Mr. Graves had received a ride to work with somebody else.

[8] The appellant entered the Graves' home unannounced. He first encountered Mr. Graves. There was evidence that they scuffled and the appellant eventually pointed a gun at Mr. Graves [page128] and ordered him to sit on the couch. The appellant and Mr. Graves were together in the living room or kitchen for some unspecified time. Ms. McNeil came out of the bedroom when she heard the scuffling noises. The appellant and Ms. McNeil gave very different versions of what happened next.

[9] According to Ms. McNeil, the appellant pointed a gun at her and Mr. Graves. She spoke with the appellant and tried to calm him down. During their conversation, Ms. McNeil got up from the couch and went to the window to see if she could see the appellant's car. As she was looking out the window, she heard three shots. She turned to see Mr. Graves on the ground and the appellant fumbling with the gun; he appeared to be trying to put something into the gun. The appellant attacked Ms. McNeil, repeatedly striking her on the head with the weapon. Ms. McNeil tried unsuccessfully to pull the gun from the appellant's hands. They fell to the ground and the appellant continued to pummel her with the gun. Ms. McNeil decided to "play dead", hoping the appellant would stop hitting her. He hit her several more times and then left the living room. He returned moments later, spread gasoline around the inside of the home and set it on fire. He fled the scene in his car.

[10] According to the appellant, he drove through the night because he became concerned that Ms. McNeil had taken one of his guns with her. The appellant was worried that she could be charged with transporting an unregistered firearm. He arrived at the Graves' home thinking Mr. Graves was at work. When he entered the home, he encountered Mr. Graves first. Ms. McNeil appeared immediately afterward and the two argued. She produced a gun and pointed it at the appellant. The appellant grabbed the barrel of the gun and they struggled. During the struggle, the gun discharged several times. One or more of the shots hit and killed Mr. Graves. The appellant took the gun from Ms. McNeil and began hitting her on the head with it. He testified that he had no memory of what happened after he began to strike Ms. McNeil. The appellant could not remember lighting the fire. His next memory was being stopped by the police around 8:00 a.m. that morning.

[11] Mr. Graves was struck in the chest with at least two bullets and died immediately. Ms. McNeil managed to escape the fire alive. She suffered serious head injuries as well as other trauma as a result of the appellant beating her with the gun. Ms. McNeil also suffered significant first degree burns.

[12] By the end of the trial, counsel for the appellant conceded his client's liability on the arson charge and acknowledged that the appellant was guilty of assaulting Ms. McNeil. While counsel [page129] did not concede that the jury should convict on the charge of attempting to murder Ms. McNeil, he acknowledged that a conviction could well be returned by the jury. The real dispute at the trial centred on the appellant's liability on the first degree murder charge.

[13] The appellant maintained that Mr. Graves was shot accidentally during the struggle between the appellant and Ms. McNeil over the gun and that he should be acquitted outright on the first degree murder charge. Counsel further argued that even if the jury was satisfied that the appellant had shot Mr. Graves, there was no evidence that the appellant had planned and deliberated the murder of Mr. Graves. Counsel submitted that the record, taken at its highest, offered some evidence of planning and deliberation as applied to Ms. McNeil only.

III

[14] The trial judge told the jury that if it was satisfied beyond a reasonable doubt that the appellant had murdered Mr. Graves, it could convict the appellant of first degree murder if satisfied beyond a reasonable doubt that the murder of Mr. Graves was planned and deliberate under s. 231(2), or that the murder was committed while the appellant was forcefully confining Mr. Graves under s. 231(5). Counsel for the appellant acknowledges that there was an evidentiary basis for liability under s. 231(5). [See Note 1 below]

[15] The trial judge's instruction on s. 231(5) began by describing for the jury the essential elements of liability under that section:

1. that James McNeil caused the death of George Graves;

2. that James McNeil caused the death of George Graves unlawfully; ... and

3. that James McNeil had the state of mind required for murder.

And here is where section 235 comes in. There is a fourth essential element. And it reads, that James McNeil did something that was an essential, substantial, and integral part of killing George Graves. That is the unlawful [page130] confinement of George Graves at gunpoint -- sit down. That James McNeil committed murder on George Graves is the fifth element.

The sixth element, that the murder of George Graves was part of the same series of events.

(Emphasis added)

[16] After a description of the first two elements, the trial judge turned to the third element of liability under s. 231(5):

Did James McNeil do something that was an essential and substantial integral part of the killing of George Graves? This is the only different essential element that arises out of this section in the Code. To prove this element, Crown counsel must prove beyond a reasonable doubt that James McNeil did something that was an essential, substantial, and integral part of the killing of George Graves. By "essential, substantial, and integral part", I mean that James McNeil actively participated in the killing of George Graves. It is not enough to prove that James McNeil was present, or that he played some minor role in the events. To convict someone of first degree murder under this section of the Criminal Code, in this context, the Crown must prove beyond a reasonable doubt that the accused is an active participant in the killing. So consider all of the evidence in considering this issue.

(Emphasis added)

[17] The trial judge also explained the significance of forcible or unlawful confinement to potential liability under s. 231(5):

The key to this section is whether 1) there was unlawful confinement of George Graves; and that the murder of George Graves was part of the same series of events. In order for James McNeil to be guilty of first degree murder, Crown counsel must prove, also prove beyond a reasonable doubt, that James McNeil murdered George Graves while he was committing the offence of unlawful confinement. This does not mean that the murder and that the unlawful confinement, where he was told to sit down, have to happen exactly at the same moment. As far as unlawful confinement for the Crown to succeed, that George Graves was unlawfully confined, the Crown must prove beyond a reasonable doubt that Graves was totally physically restrained against his will without lawful authority, and that Jim McNeil intended to totally restrain George Graves against his will. You may consider that a pointed loaded firearm, and forcing you to sit down, may be lawful confinement. You heard the evidence of James McNeil who rapped, entered into the house. George was home. You heard Cathy's evidence that she heard Jim say"Shut the fuck up and sit down". And you also heard her evidence in relation to the fact that he had a gun. So has the Crown proven beyond a reasonable doubt that James McNeil unlawfully confined George Graves? His evidence is that he did not have the gun and did not confine George Graves. And again, this is for your consideration. So if you are not satisfied beyond a reasonable doubt that the unlawful confinement and murder of George Graves was part of the same series of events, on this charge, you must find James McNeil not guilty of first degree murder but guilty of second degree murder. If you are satisfied beyond a reasonable doubt that the unlawful confinement and the murder of George Graves was part of the same series of events, you must also find James McNeil guilty of first degree murder.

(Emphasis added) [page131]

[18] Counsel targets the trial judge's description of what he characterized as the third element of liability under s. 231(5). That description is found in the passages set out in paras. 15 and 16, above. Counsel submits that the instruction suggested to the jury that the appellant could be liable for first degree murder under s. 231(5) if the jury were to find that he actively participated in the struggle with Ms. McNeil that, on the appellant's evidence, precipitated the shooting of Mr. Graves. Counsel contends that the Crown's case against the appellant under s. 231(5) rested entirely on the assertion that the appellant had intentionally shot Mr. Graves while Ms. McNeil was standing some distance away. Counsel argues that an instruction which suggested potential liability for acts other than the intentional discharge of the firearm at Mr. Graves constituted misdirection that seriously prejudiced the appellant.

[19] Alternatively, counsel argues that even if the instructions did not suggest liability under s. 231(5) for a non-intentional shooting, those instructions, considered as a whole, were so divorced from the evidence adduced in the case that they must have left the jury confused and uncertain as to the application of s. 231(5).

[20] The trial judge's instructions on s. 231(5) track the model instruction provided in David Watt, Ontario Specimen Jury Instructions (Criminal) (Toronto: Thomson-Carswell, 2003). [See Note 2 below] The third element of liability under s. 231(5), which requires that the accused's actions form an "essential, substantial and integral part" of the killing, captures the causation component of s. 231(5) as described in R. v. Harbottle, 1993 71 (SCC), [1993] 3 S.C.R. 306, [1993] S.C.J. No. 58, 84 C.C.C. (3d) 1 and R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, [2001] S.C.J. No. 75, 158 C.C.C. (3d) 486.

[21] The model instructions and the trial judge's instructions accurately state the law on the causation requirement for liability under s. 231(5). Jury instructions are not, however, intended to provide a statement of legal principles in the abstract. Jury instructions must, as Justice Watt, the author of the model instructions and others have emphasized, be tailored to the facts of the specific case. The model instructions are intended to provide a starting point for trial judges. In some cases, the language in the model instructions can be used virtually without change. [page132] In other cases, modification will be needed so that the instructions will achieve the purpose of providing the jury with the applicable legal principles in a format that facilitates the application of those principles to the specific circumstances of the case.

[22] In this case, the causation question was straightforward. If the Crown proved beyond a reasonable doubt that the appellant intentionally shot Mr. Graves, then the Crown would have established causation for all relevant purposes, including s. 231(5). If the Crown did not prove beyond a reasonable doubt that the appellant intentionally shot Mr. Graves, then the Crown would have failed to prove causation in respect of all of the relevant homicide provisions, including s. 231(5). There was no evidentiary basis for a finding of causation apart from finding that the appellant intentionally shot Mr. Graves.

[23] The model jury instructions could have been modified in this case by describing the essential elements of liability under s. 231(5) as follows:

-- did the appellant intentionally shoot Mr. Graves?

-- did the shooting cause Mr. Graves' death?

-- did the appellant have either of the states of mind required for murder?

-- did the appellant forcibly confine Mr. Graves? and

-- was the forcible confinement of Mr. Graves and the killing of Mr. Graves part of the same series of events?

[24] I must agree with counsel's submission that the trial judge's reference to causation under s. 231(5), as requiring proof that the appellant's conduct played an "essential, substantial, and integral part" in the killing, was potentially confusing since it bore no relationship to the evidence relevant to causation heard by the jury. By seemingly connecting the causation requirement with the unlawful confinement requirement (supra, para. 15), the trial judge's instructions may have added to the confusion.

[25] I am satisfied, however, that the causation instruction, although confusing, caused no prejudice to the appellant. The trial judge repeatedly and clearly told the jury that it could not convict the appellant of first degree murder under s. 231(5) unless it was satisfied that the appellant's actions were the physical cause of Mr. Graves' death, that the appellant had one of the two intentions required for murder, and that he had caused Mr. Graves' death. The trial judge's reference to the requirement that the appellant's [page133] actions must be "an essential, substantial, and integral part" of the killing could not have detracted from the clarity of his instructions concerning the requisite intent.

[26] The jury's verdict demonstrates that it was satisfied beyond a reasonable doubt that the appellant had the intention required for murder. The jury could not possibly have come to that conclusion unless it was satisfied beyond a reasonable doubt that the appellant intentionally fired the gun at Mr. Graves causing his death. Had the appellant's evidence, considered alone or in combination with the entirety of the evidence, left the jury with any doubt as to how Mr. Graves was shot, the jury could not possibly have found that the appellant had the intent required for murder. No exception is or can be taken to the trial judge's instruction regarding the intention required for murder. The jury's verdict reflects a finding beyond a reasonable doubt of the necessary intent and forecloses a finding that the appellant was prejudiced by any confusion that may have been engendered by the causation instruction as it related to s. 231(5).

[27] I would dismiss the appeal. I would also add one further observation. The trial judge, who obviously worked hard on preparing and delivering this jury charge, provided the jury with copies of Criminal Code provisions and extracts from Justice Watt's model charges. This kind of written material can assist the jury in the course of their deliberations: see N. Madge, Summing Up -- A Judge's Perspective, [2006] Crim. L.R. 817 at pp. 820-21. It is important, however, that the trial judge and counsel ensure that a copy of anything left with the jury forms part of the permanent trial record so that it will be available on appeal should the verdict be challenged. That was not done here and, as a result, there is uncertainty as to exactly what material the jury had with it during its deliberations.

Appeal dismissed.

Notes

Note 1: On appeal, counsel argued that there was no evidentiary basis for a finding that the appellant planned and deliberated the murder of Mr. Graves. Counsel put heavy reliance on the evidence that the appellant did not expect Mr. Graces to be home when he entered the house. While there was evidence to that effect, it had to be considered in the context of the entirety of the evidence. The entirety of the evidence included evidence from which it could be inferred that whatever the appellant may have believed when he drove from his home to the Graves' residence, he knew that Mr. Graves was at home before he entered the house. The jury could have found that regardless of the initial scope of the appellant's murderous plan, it included Mr. Graves by the time he was shot.

Note 2: The trial judge provided the jury with excerpts of Justice Watt's model instructions to assist them in their deliberations. A review of the trial record leaves some uncertainty as to exactly what parts of the model instructions were left with the jury, although it appears that the extracts setting out the essential elements of liability under s. 231(5) were provided.