CITATION: R. v. Willis, 2007 ONCA 365
DATE: 20070514
DOCKET: C43877
COURT OF APPEAL FOR ONTARIO
WEILER, FELDMAN and LANG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
RUTH‑ANNE WILLIS
Appellant
Mark J. Sandler and Ngai On Young, for the appellant
M. David Lepofsky, for the respondent
Heard: April 30, 2007
On appeal from the conviction entered on November 23, 2004 and the sentence imposed on January 20, 2005 by Justice John Cavarzan of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
[1] The appellant appeals both her conviction for second degree murder and the portion of her sentence requiring her to serve thirteen years before being eligible for parole.
[2] With respect to the conviction appeal, there is no issue that the appellant shot and killed her former husband, Russell Bailey. The issue is whether the trial judge erred in refusing to leave the defence of provocation with the jury.
[3] In order to appreciate the context in which the issue arises, a brief summary of the background facts is necessary.
Background
[4] The appellant characterized her relationship with Bailey as emotionally and physically abusive. She testified to numerous abusive interactions: punches to the face, a punch to her abdomen when she was pregnant, verbal threats, and derogatory comments. The appellant also alleges that Bailey threatened to take their two daughters away from her.
[5] After ten years of marriage, in April 1992, the appellant moved into a women’s shelter for four months. She indicated she was very afraid of Bailey. On May 19, 1992 the appellant was granted interim custody of the children. Bailey was granted periodic access. The appellant and Bailey executed a separation agreement in 1995, which provided that the appellant would give Bailey sixty days notice of any intention to remove the children any distance from their home. The agreement provided any dispute about such a proposed move would be determined by the courts.
[6] The appellant remarried in 1998 and made plans with her new husband to move to Prince Edward Island in August 2001. She testified she gave notice to Bailey of her plans to move the children by giving him a note delivered by their daughter. Bailey obtained and served the appellant with an ex parte order prohibiting her from removing the children from Ontario. Despite the order, and her knowledge of its contents, and despite being told she would be in contempt of court, the appellant moved the girls to Prince Edward Island. Bailey never followed up legally because his lawyer told him it would be fruitless to do so, given the ages of the girls.
[7] Bailey saw the girls at Thanksgiving, Christmas and March break. A disagreement arose over whether one of the daughters could attend a private school in Ontario, for which the deceased’s father had agreed to pay tuition for all his grandchildren. The appellant saw this as a ploy of Bailey’s to “steal” the daughter away from her. She grounded the girl and wrote the school forbidding it from registering her daughter.
[8] In the summer of 2002, the girls came to stay with Bailey for the summer. During the summer, Bailey’s lawyer wrote the appellant asking for her consent to give custody of the daughter to Bailey so that she could attend the school. The appellant did not reply. The girl remained steadfast in her decision. The appellant emailed her expressing a contrary view.
[9] Fearing her daughter would attend the private school, the appellant drove to Ontario on August 18 and, upon her arrival on August 19, went to stay at her father’s home. She tried unsuccessfully to contact her daughter to speak to her about the school and why she thought it was a bad idea for her to attend this school.
[10] On the morning of August 20, 2002, a process server served the appellant with a motion regarding custody of the daughter returnable on August 22. The appellant tried to avoid service, but the documents were left with her father and were found in the appellant’s truck after the offence.
[11] The appellant called Bailey and asked to speak to her daughter. Bailey told her he was not sure he would let her see her daughter and told her he would call her back in five minutes after checking with someone. He did not call back. The appellant called again, spoke to Bailey’s second wife, and was told that Bailey was not there. The appellant could hear Bailey in the background. The appellant reached Bailey on his cell phone and he told her she could not see the other daughter until he arranged for supervised access. This was a reference to the court proceedings that were to take place the next day.
[12] The appellant then went to the private school to seek assurances that they would not register her daughter. She received their assurance that they would not do that over the objections of the custodial parent. The appellant also obtained a letter indicating the school would seek legal advice on whether to release her daughter’s file to her. The appellant left the school and drove to see the managing editor of the local newspaper whom she asked to publish a negative expose about the school. He refused to do so.
[13] The appellant went to her sister’s house, then shopping and out to dinner with her sister and her niece. She was crying on and off throughout the evening and laughing inappropriately. Ultimately she returned to her father’s home. She again called Bailey’s house and asked to speak to her daughter, but did not succeed in doing so.
[14] The appellant was very distraught and upset and could not sleep. She planned to go to Bailey’s home the next day and ask to see her daughter in person. At 3:00 or 4:00 a.m., she drove to Bailey’s home to get an idea of its location. Before doing so, she took a gun that she knew her father had hidden in a wood stove, assembled and loaded it, and tucked the gun inside her purse.
[15] She found Bailey’s house, and looked in the basement windows to see if her daughter was sleeping down there. It was dark and she could see nothing. She also found that the back door was open. She entered the house, but left upon seeing dog bowls because she was afraid the dog would bark and wake the occupants of the house. On her way out the door, she took a cell phone and wallet belonging to Bailey’s second wife. She did not sleep the rest of the night.
[16] The next morning, August 21, around 11:30 a.m., the appellant went back to Bailey’s house with her twenty-month old baby. As it was a weekday, she did not expect Bailey to be home and hoped that her daughter would come to the door. However, Bailey’s car was in the driveway. She parked her truck at the end of the driveway blocking any vehicles from exiting. She rang the doorbell, knocked on the door loudly and rang the doorbell again yelling for her daughter. Bailey came to the door and refused to let her see her daughter on the basis that supervised access had not yet been arranged. This was a reference to the pending court proceedings, returnable the next day, in which Bailey was seeking custody of the daughter.
[17] When the appellant persisted, Bailey tried to get the appellant to leave. When she would not, he pushed her backwards and although she did not fall, he did cause her to go down three stairs while holding the baby. Bailey told her, “this is my house” and “don’t come near my house”.
[18] Bailey also told the appellant she had better be careful because she might have a heart attack. The appellant’s mother had died of a heart attack. Having regard to her view of Bailey’s abusive and unsympathetic treatment of her in the past when she developed ulcerative colitis, the appellant perceived this as an attack on her. Bailey went back inside the house. He came back out talking to his lawyer on his cell phone and the appellant also spoke to the lawyer. At one point in the conversation she modulated her voice and tone and staged a fake dialogue with the lawyer. The lawyer asked her to give Bailey the phone, but the line went dead. Bailey called him back. The lawyer told Bailey that the appellant was entitled to see her daughter. He also told Bailey to call the police. Bailey told his lawyer he had not pushed the appellant. The appellant heard mention of calling the police. Bailey went inside, re-emerged with a phone, and called 911.
[19] The appellant said that seeing Bailey come out made her think back to when they were married ten years before. She started to think her baby was in fact her daughter whom she had come to see.
[20] Bailey told the 911 operator the appellant was trying to break into the house, which she loudly denied. The appellant testified that she believed he was misrepresenting the situation because all she wanted to do was to speak to her daughter. She felt afraid, confused and upset and as though he was manipulating her again like he used to.
[21] Thinking Bailey was somehow coming after her, she walked fifty feet back to her truck, put the baby in her truck and took out the gun. She said her perception was distorted. She knew she was reaching for the gun but was seeing herself through a tunnel. Her perception was that she watched herself walk back and shoot Bailey. She shot him in the head, firing from about 41/2 feet away. Although he took no steps towards her, his body moved three or four inches toward her and she interpreted this as an aggressive act and emptied the gun into him. She fired eight shots in rapid succession.
[22] In all, the altercation lasted twenty minutes to half an hour.
Appeal Against Conviction
[23] The trial judge ruled that there was no air of reality to the defence of provocation and that the defence could therefore not be put to the jury. Under s. 232(1) of the Criminal Code, provocation may reduce second degree murder to manslaughter where the accused committed it “in the heat of passion caused by sudden provocation”. Subsection (2) provides that the wrongful act or insult must be of such a nature to be “sufficient to deprive an ordinary person of the power of self-control” and the accused must act on it “on the sudden and before there was time for his passion to cool”.
[24] As stated in R. v. Osolin (1993), 86 C.C.C. (3d) 481 (S.C.C.) at 531, the term ‘air of reality’ simply means that the trial judge must determine if the evidence put forward is such that, “if believed a reasonable jury properly charged could have acquitted”. The appellant concedes that if there was no air of reality to the appellant’s provocation defence, any errors in the trial judge’s ruling are irrelevant.
[25] Despite counsel’s able submissions, we are not persuaded that the trial judge made any error in his conclusion that, on the objective portion of the test, there was no air of reality to the defence of provocation. First, the confrontation between the appellant and the deceased was not sudden, but lasted twenty minutes to half an hour. Second, although the confrontation was upsetting to the appellant, particularly given the past history between the two, the comments and actions of the deceased were not sufficient to deprive an ordinary person of the self-control that keeps a person from killing another person. More importantly, there is no air of reality that the accused was deprived of self control or that she acted “on the sudden”. To the contrary, during her telephone discussion with the deceased’s lawyer, she modulated her voice pretending to be co-operative. She then strode back to her truck with the baby, deposited the baby safely in the truck, retrieved the gun and shot the deceased eight times. These actions cannot be characterized as acting “on the sudden” or in the heat of passion and “before there was time for her passion to cool”.
[26] Since there is no air of reality to the defence of provocation, we would dismiss the conviction appeal.
Appeal Against Thirteen-Year Parole Ineligibility Period
[27] The appellant asked for the statutory minimum of ten years for parole ineligibility. The Crown sought a period of seventeen years. Of the eleven members of the jury remaining to verdict, five recommended ten years, two recommended fifteen years, three recommended eighteen years and one recommended twenty years.
[28] The trial judge gave thorough and comprehensive reasons for sentence, reviewing the mitigating and aggravating factors. He recognized the accepted range of parole ineligibility in cases of brutal domestic homicide as twelve to fifteen years. In choosing thirteen years, he went to the lower end of the range. He cited the following reasons for departing from the ten-year minimum: the murder was brutal, it was perpetrated on an unsuspecting victim in the context of a domestic dispute, it occurred on the doorstep of the deceased’s family residence when his wife and children were present in the house, and there were elements of planning and deliberation.
[29] We agree with the appellant that it would be an error to sentence based on a misconstruction of the jury verdict. In this case, the jury refused to convict on first degree murder based on planning and deliberation. However, we are satisfied that the judge’s choice of words was merely a reference to certain facts, and did not amount to error. He was entitled to take into account on sentence the fact that the appellant deliberately loaded a gun and brought it with her when she went to the deceased’s home. This was clearly an aggravating factor.
[30] The appellant also objects to a statement by the trial judge that the appellant “lulled” the deceased into a false sense of security. Again we see no error. Although the two were engaged in a confrontation, there was no warning that the appellant was either armed or potentially dangerous. Also, there was evidence that the appellant changed her tone with the lawyer on the phone apparently to lead Bailey to believe she was calming down.
[31] Finally, the appellant objects to reliance by the judge on cases which she characterizes as much worse than hers: R. v. Barjrangie Singh (2003), 174 C.C.C. (3d) 351 (Ont. C.A.) and R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.). We do not agree that the judge made any error in using those cases for guidance in these circumstances.
[32] As we see no error in the trial judge’s decision to impose a period of thirteen years parole ineligibility, leave to appeal sentence is granted but the appeal is dismissed.
“K. M. Weiler J.A.”
“K. Feldman J.A.”
“S.E. Lang J.A.”