Court of Appeal for Ontario

Citation: R. v. Bauer, 2008 ONCA 356

Date: 2008-05-06

Docket: C43692

Before: FELDMAN, SHARPE and ARMSTRONG JJ.A.

Between:

Her Majesty the Queen Respondent

and

William Alfred Bauer Appellant

Counsel: Frank Addario for the appellant Shelley Hallett for the respondent

Heard: May 1, 2008

On appeal from the conviction entered by Justice Arthur M. Gans, sitting with a jury in the Superior Court of Justice on October 16, 2003 and from the sentence imposed on October 21, 2003

ENDORSEMENT

[1] The appellant was convicted of second-degree murder and sentenced to life imprisonment without eligibility for parole for 13 years. He appeals his conviction and the increased period of ineligibility for parole.

Conviction appeal

1) Statement made by Anne Tilly

[2] The trial judge admitted into evidence the utterance of a deceased witness, Anne Tilly, overheard by another witness, who stated “Willie” and “Willie, no” as the violent incident that led to the victim’s death unfolded. The basis upon which the trial judge admitted this evidence is not entirely clear, but on balance, it appears to us that the trial judge appears to have admitted the statement for the limited purpose of showing that it was made. The import of this statement was unclear. It could have indicated that the appellant, known as “Willie”, was the aggressor, or it could have indicated that Tilly was concerned that the victim was getting the better of the appellant. Defence counsel elicited from the witness who heard the statement that he interpreted it to mean the latter and the defence relied on that evidence in closing submissions. Crown counsel linked this evidence to other evidence heard very shortly thereafter from another witness who heard Tilly make similar utterances at a point where the appellant was clearly the aggressor. The trial judge made no reference to the evidence in his instructions to the jury.

[3] We are not persuaded that the trial judge erred in admitting this evidence. Moreover, given the dynamic of the trial, and given the manner it which it was used by both sides, we are not persuaded that it could have caused the appellant any significant prejudice. Accordingly, we would not give effect to this ground of appeal.

2) Post-offence conduct

[4] The trial judge gave the jury a brief but correct instruction on the use of certain post-offence conduct, namely, the appellant’s statement to the police that the blood on his clothing could have been ketchup. The appellant submits that a more detailed instruction was called for, directing the jury more specifically to the issues to which the post-offence conduct was relevant.

[5] In our view, and as the trial judge observed, such an instruction almost certainly would have done more harm than good. The post-offence conduct was relevant to the issues of self-defence and the appellant’s mental capacity and state of mind and a more specific instruction directing the jury along those lines would not have benefited the appellant in the context of this trial.

3) Material provided to assist the jury and answers to the jury’s questions.

[6] We do not agree that the trial judge erred by providing the jury with written materials consisting of an outline of the headings in the charge, the relevant sections of the Criminal Code, including the sections relating to the offences charged and the defences of self-defence and provocation, and a decision tree. The appellant submits that because there were brief notations regarding the mental element required to prove manslaughter and murder, and no notations regarding self-defence and provocation, these materials created an “imbalance”. We do not agree that any imbalance was created in this case. While trial judges must exercise caution when providing written materials, there is no suggestion that these written materials contained any error or that they were unbalanced in the sense of favouring the Crown. We do not accept the submission that the trial judge was required to provide the jury with his entire charge on all relevant defences.

[7] In our view, the answers given by the trial judge to the jury’s questions were entirely accurate and satisfactory.

4) Sentence appeal

[8] We see no error of principle that would justify this court in interfering with the 13 year period of parole ineligibility. The jury was divided on the question, but 6 members favoured a significant increase to the 10 year mandatory period. The trial judge’s reasons reflect a careful assessment of the circumstances of the offender and the offence. We do not accept the argument that he placed undue weight on what he perceived to be the appellant’s lack of remorse. The trial judge was present when the appellant stated that he was sorry for what had happened and it was for the trial judge to assess that statement. In any event, as we read his reasons for sentence, the trial judge placed relatively limited weight on lack of remorse and we are not persuaded that he used it as an aggravating factor when imposing the 13 year period of parole ineligibility.

Conclusion

[9] Accordingly, the appeals against conviction and sentence are dismissed.

“K. Feldman J.A.”

“Robert J. Sharpe J.A.”

“R.P. Armstrong J.A.”