CITATION: R. v. Pasqualino, 2008 ONCA 554
DATE: 20080711
DOCKET: C43835
COURT OF APPEAL FOR ONTARIO
LASKIN, ROSENBERG and LaFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
COSMO PASQUALINO
Appellant
Alan D. Gold and Vanessa G. Arsenault for the appellant
Roger A. Pinnock for the respondent
Heard: January 28 and 31, 2008
On appeal from the conviction entered by Justice Clair Marchand of the Superior Court of Justice, sitting with a jury, dated March 23, 2005, and the sentence dated May 3, 2005.
LaFORME J.A.:
OVERVIEW
[1] The appellant, Cosmo Pasqualino, was convicted of one count of second degree murder in the shooting death of his wife, Marisa Pasqualino. He was sentenced to life imprisonment with no eligibility for parole until he has served 13 years. He appeals both his conviction and sentence.
[2] For many years the marital relationship between the appellant and his wife had been stormy and unsettled. There was evidence that the appellant, over the years, had repeatedly subjected his wife to both physical and verbal abuse, including utterances that he would kill her if she ever tried to leave him.
[3] Two days before her death, the appellant’s wife informed his brother over the telephone that she would be leaving the appellant, and demanded that her husband repay monies which she had loaned to him. Subsequently the appellant, while alone with his wife in the matrimonial home, shot her to death, discharging the entire six-round clip of his handgun into her.
[4] At trial, the appellant did not dispute that he had shot his wife, nor did he dispute that the shooting was unlawful. What he did assert was that he had been provoked by his wife immediately prior to shooting her and that he lacked the requisite specific intent for the offence of second degree murder.
[5] The primary issue on the appeal from conviction rests upon the trial judge’s admission into evidence, following a lengthy voir dire, of a number of ante-mortem statements of the deceased, together with evidence of previous threats and acts of violence by the appellant toward the deceased.
[6] The appellant also requests leave to appeal his sentence on the grounds that it was harsh and excessive.
BACKGROUND
[7] The appellant and the deceased immigrated to Canada when they were young. They met around 1983 and were married shortly thereafter. At the time, she was 18 years old and he was 26.
[8] Upon finishing college, the appellant purchased a pizzeria business with the help of his two brothers, Tony and Mike. At the beginning of the marriage, the business was very prosperous. The brothers then purchased the building next door and opened a restaurant.
[9] The brothers also purchased condominiums in Toronto and Mississauga to supplement their income, and all lived only minutes away from each other.
[10] For a variety of reasons, monetary problems started to arise, which created marital difficulties for the appellant and the deceased. The brothers closed the restaurant in 1999 but continued running the pizzeria.
[11] In 1993, the Appellant had three one-night stands and one affair. After the birth of their fourth child, Vince, in 1994, the appellant confessed the affair to the deceased, although he did not reveal the three one-night stands. After learning of the affair, the deceased left with the children and resided with her parents for five days, before returning to the matrimonial home.
[12] The marriage continued with arguments between the appellant and the deceased becoming regular events and included assaults against the deceased. I will say more about these later as they become relevant to these reasons.
[13] In any event, on Apr. 29, 2002, the deceased telephoned the appellant’s brother Mike to discuss the $500 that she had lent the appellant for the pizzeria. The conversation soon escalated into an argument, with the deceased informing Mike that she was going to leave the appellant, and Mike in response giving her a warning that she interpreted as a death threat.
[14] On May 1, when the deceased and the appellant were alone in the marital home, an argument broke out between them concerning the appellant’s infidelities and the $500 that he owed her. The appellant testified that the deceased said that she was leaving him and that he “did not even satisfy her anymore”. The appellant took this comment to mean that he was no longer able to sexually satisfy her.
[15] The appellant became enraged and shot the deceased with his handgun a total of six times, twice in the torso and four times in the head. A number of the shots were fired from close range. The shooting used up all of the rounds in the handgun. The appellant claims to only remember standing over the deceased’s body after the shooting, but not the shooting itself.
[16] The appellant was convicted by a jury presided over by Justice Clair Marchand. As the trial judge did not request that the jury provide a sentencing recommendation on parole ineligibility prior to discharging it, he assumed that the jury would have recommended the minimum statutory period of 10 years. He then imposed a sentence of life imprisonment with a 13-year period of parole ineligibility.
ISSUES
[17] The case for the Crown at trial included evidence that the appellant had subjected the deceased to numerous instances of both physical and verbal abuse over the years and, that he repeatedly threatened to kill her if she attempted to leave him. In this regard, the trial judge admitted into evidence a number of ante-mortem statements of the deceased, along with evidence of previous threats and acts of violence by the appellant toward the deceased.
[18] The appellant originally appealed on three grounds related to: (i) the trial judge’s rulings with respect to the admissibility of bad character evidence and hearsay evidence, including numerous ante-mortem statements of the deceased; (ii) the refusal of the trial judge to declare a mistrial; and (iii) the trial judge’s decision to set parole ineligibility at 13 years. Prior to oral argument, the appellant abandoned the issue respecting the mistrial but added another ground not advanced in either the notice of appeal or in his factum. The additional ground attacks the trial judge’s charge to the jury, alleging that the trial judge erred because he: i) failed to provide a proper instruction the jury on the permissible use of hearsay evidence; ii) failed to provide an instruction cautioning the jury about the proper use of bad character evidence; iii) unfairly referred to the appellant as “somewhat scary”.
[19] We allowed the appellant to proceed with the additional ground of appeal since it was so related to the issue of the ante-mortem statements. Additionally, Crown counsel was prepared to address the issue given that he was granted two days time to prepare his argument and respond to the submissions of appellant’s counsel.
[20] For the following reasons, I conclude that none of the appellant’s grounds of appeal against conviction justifies interfering with the jury’s verdict and I would therefore dismiss the appeal. Also, I would dismiss the appeal against the trial judge’s decision on the period of parole ineligibility.
ANALYSIS
1. Admissibility of Evidence
i. Standard of Review
[21] The appellant impugns the trial judge’s evidentiary decisions, targeting his weighing of probative value and prejudice with respect to evidence relevant to motive—in particular, evidence of past discreditable conduct—as well as his threshold admission of hearsay under the principled exception. Before analyzing the appellant’s submissions, I will first consider the standard of review applicable to these findings.
[22] The standard of review is clearly established for trial determinations of whether the probative value of similar fact and past discreditable conduct evidence sufficiently exceeds its prejudicial risk. Appellate courts accord a high degree of deference to trial judges’ decisions in this area. In R. v. B. (C.R.) (1990), 1990 142 (SCC), 55 C.C.C. (3d) 1 at 23 (S.C.C.), Justice McLachlin (as she then was) explained that this deference arises “as a function of the broader, more discretionary nature of the modern rule [of similar fact evidence] at the stage where the probative value of the evidence must be weighed against its prejudicial effect.” See also R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 at para. 153 (S.C.C.).
[23] This principle has been repeatedly affirmed by this court: see e.g., R. v. James (2006), 2006 33664 (ON CA), 213 C.C.C. (3d) 235 at para. 33; R. v. Woodcock (2003), 2003 6311 (ON CA), 177 C.C.C. (3d) 346 at para. 127; R. v. H.(T.R.) (2002), 2002 44895 (ON CA), 164 C.C.C. (3d) 522 at para. 20; R. v. B.(L.); R. v. G.(M.A.) (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 at para. 51. As Justice Doherty stated in James at para. 33, “[a]ppellate courts will defer to the trial judge’s assessment of the comparative probative value and prejudicial effect of the proffered evidence unless an appellant can demonstrate that the result of the trial judge’s analysis is unreasonable, or is undermined by a legal error or a misapprehension of material evidence” (citations omitted).
[24] Curiously, the law is less clear with regard to the appropriate standard for reviewing a trial court’s determination of the threshold admissibility of hearsay statements introduced under the principled exception. In contrast to the substantial deference appellate courts accord to trial courts’ admissibility decisions concerning similar fact evidence, there exists a line of authority in this court, beginning with R. v. Merz (1999), 1999 1647 (ON CA), 140 C.C.C. (3d) 259 at para. 49, that states that hearsay admissibility decisions are subject to review on a standard of correctness:
In reviewing a trial judge’s decision to admit evidence under the principled exception to the hearsay rule, this court, absent manifest error, must accept the findings of fact made by the trial judge on which the ruling is predicated. The court must, however, apply a correctness standard to the ultimate question of whether the trial judge properly applied the criteria relevant to the admissibility of the evidence to the facts as found by the trial judge: R. v. Hawkins [(1996), 1996 154 (SCC), 111 C.C.C. (3d) 129 at 160 (S.C.C.)].
[25] This court has since adopted this holding from Merz without further elaboration in several cases: see R. v. Czibulka (2004), 2004 22985 (ON CA), 189 C.C.C. (3d) 199 at para. 27; R. v. Khelawon (2005), 2005 4775 (ON CA), 194 C.C.C. (3d) 161 at para. 19, appeal on unrelated issues dismissed in 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Canizales (2005), 2005 19661 (ON CA), 198 C.C.C. (3d) 101 at para. 7.
[26] I would, however, draw attention to the recent decision of the Supreme Court in R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517. In Couture at para. 132, Justice Rothstein, dissenting, stated:
[I]t is my view that the trial judge did not reverse the onus and made a reasonable factual finding that [the hearsay] statements met threshold reliability. … As stated by the majority in Housen v. Nikolaisen, the trial judge’s factual determination is entitled to a high standard of deference and should not be disturbed absent a palpable and overriding error. [Citation omitted.]
[27] Although Justice Charron held on behalf of the majority in Couture that appellate interference was warranted in the case before her, she stated at para. 81 that she agreed with Justice Rothstein on the principle of appellate deference to trial judges’ decisions on the admissibility of hearsay evidence:
[T]he trial judge is well placed to assess the extent to which the hearsay dangers are of concern in the particular case and whether they can be sufficiently overcome. Hence, the trial judge’s ruling on admissibility is usually entitled to deference.
[28] There is, however, no need to resolve this issue at the present time. As I explain further below, the trial judge’s decision on threshold admissibility in this case does not exhibit reversible error even when subjected to review on a standard of correctness. As such, I would leave to another court the definitive resolution of the appropriate standard of review for trial decisions on the threshold admissibility of hearsay.
ii. Admissibility Decisions Involving the Weighing of Probative Value Against Prejudicial Risk
[29] The appellant attacks the trial judge’s decisions regarding various items of evidence whose probative value he found exceeded prejudicial risk. These items include: testimony by the victim’s children concerning an altercation that involved the appellant slapping the victim and concluded with the appellant engaging in a fistfight with his son when he intervened; testimony by the victim’s children, brother, and father of threats by the appellant against the victim; testimony by the victim’s daughter concerning a demeaning and threatening statement the appellant made against the victim; and testimony by the victim’s brother concerning a loan by the victim to the appellant and his brothers, which the victim wanted repaid.
[30] After reviewing the trial judge’s ruling and the contents of this evidence, I conclude that the appellant has failed to show any palpable or overriding error in the trial judge’s voir dire decision. The trial judge reasonably decided that all of this evidence was relevant to the appellant’s motive, and the appellant’s submissions do not provide me with any reason to doubt these findings.
[31] Contrary to the appellant’s submissions, it is highly relevant to the issues of motive and intent that the appellant may have engaged in recent threats and other discreditable conduct that were specifically targeted against the victim, and that his animus toward the victim had been increasing during the time leading up to the killing. Such evidence of threatening or abusive behaviour by an accused against a victim possesses probative value precisely because it demonstrates that the accused possessed a specific tendency or intention to act against the victim. Although such evidence potentially causes the appellant prejudice due to the risk that the jury might use it to unfairly convict the appellant on the basis that he is a bad or frightening person simpliciter, as stated above, it is the trial judge who bears the principal responsibility in deciding whether the probative value of evidence outweighs its prejudicial risk.
[32] The trial judge also reasonably found that the testimony concerning the appellant’s debt to the victim was relevant to motive. The appellant’s assertion that this debt’s relatively low value restricts its probative value as an indicator of motive does not provide sufficient grounds for reversing the trial judge’s determination.
[33] The trial judge’s thorough reasons in his voir dire decision indicate that he more than adequately considered and weighed the prejudicial risk against the probative value of each of the above-mentioned items of evidence relevant to motive. As there is no indication that the trial judge improperly exercised his discretion to admit the evidence that he did, I find that the appellant has failed to demonstrate that these decisions exhibit reversible error.
iii. Threshold Admissibility of Ante-Mortem Hearsay Statements
[34] The appellant challenges the trial judge’s voir dire decisions on the threshold admissibility of various ante-mortem statements made by the victim. As I have stated, it is my view that the trial judge’s decision survives review on a standard of correctness.
[35] The ante-mortem statements the trial judge permitted the jury to consider consisted of statements the victim made to her relatives and a close friend. The content of the statements concerned the victim’s intent to leave her husband and her fear of the consequences; threats and abuse by the appellant against her; a threatening discussion with the appellant’s brother; and the victim’s discovery of a gun in the appellant’s car.
[36] My discussion will consider, first, the appellant’s broad argument that the trial judge erred in his threshold reliability analysis because he overlooked potential motivations the victim possessed to fabricate or mislead; second, the various inconsistencies the appellant alleges in the evidence and the trial judge’s analysis; and, third, the admission of an item of double hearsay evidence.
[37] The appellant’s primary ground of attack is based on the broad submission that the trial judge should have found all of these statements unreliable because they were made by the victim at a time when she was planning to leave her husband. As such, the victim had several possible motivations for fabricating stories of fear and abuse.
[38] First, the appellant submits that the victim may have wanted to create a record in contemplation of family law litigation, in particular for the purpose of winning custody of her children. Second, the appellant submits that the victim may have wanted to obtain moral and material support from her family for her impending departure from her husband. In support of these submissions, the appellant notes that the Crown’s evidence clearly establishes that the victim consulted with a lawyer in contemplation of family law proceedings, and that all of the witnesses to the ante-mortem statements believed that the victim had intended to leave the matrimonial home in the near future.
[39] The appellant bolsters his submission concerning the victim’s possible motivation to fabricate in contemplation of pending litigation by citing this court’s decision in Czibulka, supra at para. 57, where it was said that “a statement made in contemplation of litigation is a classic reason to suspect that the statement was contrived.”
[40] I do not find this holding in Czibulka helpful to the appellant’s challenge. In Czibulka, when this court excluded a physician’s account of the deceased declarant’s display of bruises on her body and her claim that they were caused by her husband, the court found it particularly pertinent that the declarant’s statements included the remark that she was motivated to display her bruises to the physician “for the record”. After taking into account the physician’s account of the declarant’s upbeat demeanour, this court concluded that the trial judge should have considered the evidence to be unreliable. Furthermore, the declarant in Czibulka was actually engaged in a bitter custody dispute with the accused when she made the ante-mortem statements at issue.
[41] In contrast, the content and circumstances of the ante-mortem statements in the present appeal do not present any overt indication that the victim was contemplating the creation of a record for litigation when she made these statements to her close friends and relatives. Unlike the victim in Czibulka, the victim in the present case may have formed an intention to leave her husband, but she was not actively engaged in legal proceedings. Although she had consulted a lawyer, actual litigation—nevermind the bitter custody dispute that formed the backdrop to Czibulka—was only a speculative possibility.
[42] To the extent that the appellant’s argument implies a general rule that ante-mortem hearsay statements uttered during the context of marital difficulties or imminent divorce proceedings are presumptively unreliable under the principled exception, I would decline the invitation to set down such a broad rule of presumptive exclusion. Moreover, the Supreme Court has recently clarified that the existence of a motive to lie is “but one factor to consider in the determining of threshold reliability”: R. v. Blackman, 2008 SCC 37 at para. 42.
[43] The trial judge examined the available corroborating evidence and the circumstances in which the statements were made, and found that the statements at issue were made in the context of everyday intimate conversations between close relatives and friends where there was no motive to fabricate. This court has signalled that the context of a “special” relationship can constitute an indicator of reliability, see Czibulka at para. 47, and I see no error in the trial judge’s conclusion that the statements possessed sufficient hallmarks of threshold reliability.
[44] I similarly reject the appellant’s submission that the victim may have fabricated her statements to her father and brother because she wanted to obtain moral and material support from her family for her impending departure from her husband. Unlike the victim in Czibulka, who unsuccessfully made a request to live with her cousin before writing him a letter detailing the allegedly abusive nature of her marriage, there was no indication that the victim in this case had any need to fabricate stories of abuse to obtain support or shelter from her parents and brother. Indeed, the victim’s father and brother testified that they were well aware that the marriage was fraught with a significant history of abuse—some of which they had personally witnessed—and that they were negatively disposed toward the appellant. When viewed in this context, the appellant’s submissions on this point are, at best, speculative.
[45] The appellant adverts to several alleged indications of inconsistency in the hearsay evidence admitted by the trial judge. After examining the record, I find that none of these alleged indications demonstrates material discrepancies sufficient to undermine the reliability of this evidence when considered in light of the indicia of reliability found by the trial judge.
[46] The appellant also specifically attacks the trial judge’s decision to admit the hearsay evidence of the victim’s friend Silvana Panetta concerning a conversation she had with the victim a year-and-a-half prior to the killing. During this conversation, the victim related her fear of the appellant and described several past incidents of abuse, including an account of an incident in which the appellant broke the victim’s nose while travelling in a car. The appellant observes that the trial judge excluded evidence given by the daughter and son of this same incident of abuse, and objects that the trial judge ruled arbitrarily in deciding to reject the children’s evidence yet admit Ms. Panetta’s evidence.
[47] I do not accept this argument. The trial judge found the children’s evidence of this incident—which they had directly witnessed—to be reliable, but excluded it on the basis that accounts of abuse simpliciter that occurred several years prior to killing were more prejudicial than probative. The trial judge’s rejection of the children’s direct evidence of this incident as bearing insufficient probative value, however, in no way precluded him from finding Ms. Panetta’s hearsay evidence of this incident both (i) sufficiently reliable to permit threshold admissibility under the principled exception; and (ii) on balance more probative than prejudicial and therefore admissible.
[48] In contrast to the children’s evidence, which merely related the facts of a past incident of abuse, the trial judge found that Ms. Panetta’s hearsay account of this incident was an integral part of a conversation that was sufficiently close in time to the killing and that it illuminated important aspects of the factual matrix surrounding the crime, including the victim’s state of the mind and the prevailing matrimonial environment. This conversation demonstrated the deceased’s fear of the appellant, which would reduce the likelihood that she would have provoked the appellant. Given the trial judge’s broad discretion in weighing probative value against prejudicial risk, this determination was not in error.
[49] There is one portion of the trial judge’s hearsay rulings that is potentially problematic. The victim’s daughter, Lisa, and son, Carlo, gave evidence of a telephone conversation between the victim and the appellant’s brother, Mike, which occurred two days prior to the killing. As with the other ante-mortem statements the trial judge admitted under the principled exception, the trial judge found the admission of these statements to be necessary because of the victim’s death, but made no mention of Mike’s availability for trial.
[50] Lisa testified that she was just outside the door of the room in which her mother made the telephone call, and that she heard her mother’s end of the conversation. She stated that her mother discussed the pizzeria and the loan to the appellant, and that the conversation devolved into arguing and yelling as it turned to topics such as the appellant’s past affairs and the victim’s intention to leave the appellant. Lisa tried to warn her mother away from saying “anything you’re not supposed to say”, and to convince her mother to end the conversation when she realized the direction it was taking.
[51] Mike’s availability to testify does not affect the necessity analysis with regard to Lisa’s testimony of what she heard of her mother’s end of the conversation. The victim’s death rendered the admissibility of these ante-mortem statements necessary and Mike’s situation with regard to these ante-mortem statements does not significantly differ from Lisa’s by virtue of his participation in the telephone conversation.’’
[52] Lisa also testified that her mother was very upset immediately after the conclusion of the telephone conversation. The victim explained to Lisa that she thought that Mike had delivered a death threat by warning her that “the way I fix my bed is the way I’m going to lie in it.”
[53] Carlo similarly testified that he spoke to his mother just after she ended the conversation, and that she appeared upset and angry. The only statement by Mike that Carlo remembers his mother reporting to him is similar to the statement reported by Lisa: “The bed that you fix is the bed you lie in and all those who follow.” Carlo likewise testified that his mother told him that she thought this was a death threat.
[54] Lisa’s and Carlo’s reports of what Mike said to the deceased, if adduced for their truth, was double hearsay. The principled exception making the deceased’s statements admissible did not make other hearsay statements admissible.
[55] However, I am satisfied that Mike’s statement was not adduced for its truth, but merely for the fact that it was said. The Crown did not rely on Mike’s threat, if that is what it was, as evidence that the appellant had threatened the deceased, but merely to show the effect on the deceased’s state of mind.
[56] Even if I am wrong, the admission of this statement did not result in any substantial wrong or miscarriage of justice. There was abundant admissible evidence of threats and actual assaults by the appellant himself. When the record is viewed as a whole, the admission of Mike’s alleged threat was, in the circumstances, inconsequential.
[57] With regard to the remainder of the hearsay evidence, the trial judge carefully examined the circumstances pertaining to each of the items of hearsay. He properly found a number of valid indicia of reliability, including the victim’s close relationship with the witnesses, corroborating evidence concerning the circumstances of the marriage and various instances of abuse, and the personal and potentially embarrassing nature of some of the revelations. In the absence of any overt indications of unreliability, the trial judge did not err in holding that the ante-mortem statements at issue bore hallmarks of reliability sufficient to pass the threshold for submission to the jury.
iv. Conclusion on the Trial Judge’s Admissibility Decisions
[58] In sum, the trial judge’s admissibility decisions do not disclose any reversible error, and I consequently would not give effect to this ground of appeal.
2. Charge to the Jury
i. Instructions on Ante-Mortem Statements
[59] The appellant submits that the trial judge erred in failing to instruct the jury as to the permissible uses of the admitted ante-mortem statements.
[60] Under our law, a trial judge bears an obligation to instruct the jury as to the specific permissible use of evidence only with regard to evidence admitted under a rule that permits its use for particular limited purposes.
[61] For example, in R. v. Rockey (1996), 1996 151 (SCC), 110 C.C.C. (3d) 481 (S.C.C.), where some of the hearsay permitted into evidence was admitted to prove the truth of its contents, but other hearsay was admitted solely on the issue of consistency, Justice McLachlin (as she then was) stated, at para. 38, that the “usual rule” requires instructing the jury as to the permissible uses of this evidence. Similarly, the case of R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.), involved hearsay statements that were admitted under the “present intentions” exception. Justice Iacobucci therefore stated, at paras. 180–86, that without an exception for a second level of hearsay, it was impermissible to use such evidence to prove the intentions of anyone other than the declarant, and that the jury should have been instructed accordingly.
[62] This court has also held that with regard to hearsay evidence admitted for the purpose of proving the truth of its contents under the principled exception, the trial judge’s jury instructions must explain the increased risk that such statements may be unreliable, as well as the jury’s obligation to determine the reliability and weight it will attribute to such evidence: see R. v. Blackman (2006), 2006 42356 (ON CA), 215 C.C.C. (3d) 524 at para. 85, aff’d 2008 SCC 37; R. v. Warner (1994), 1994 842 (ON CA), 94 C.C.C. (3d) 540 at 551; R. v. A.(S.) (1992), 1992 7517 (ON CA), 76 C.C.C. (3d) 522 at 527–29. In Blackman, Justice Cronk stated, at para. 85, that instructions concerning hearsay admitted under the principled exception are adequate so long as they make clear to the jury “the need to determine whether the [s]tatements were made and, if made, the nature of their contents, as well as the imperative to evaluate the evidence of the [s]tatements carefully and in the light of all the other evidence at trial.”
[63] The trial judge gave a lengthy and correct instruction to the jury about the frailties of hearsay evidence. This instruction complied with the suggestions set out in Blackman. In other parts of the charge, the trial judge instructed the jury as to the relevance of some of the evidence—for example, to show that the appellant had a motive to kill his wife because he knew she was leaving him. In the circumstances, the directions, although not as comprehensive as they might have been, sufficiently alerted the jury as to the relevance of the evidence and the use to be made of it.
ii. Absence of a Bad Character Caution
[64] The appellant submits that the trial judge erred by not instructing the jury on the proper use of the abuse evidence in relation to the issues at trial. I take this to suggest that the trial judge should have provided a “bad character” caution with regard to this evidence of prior discreditable conduct.
[65] A consistent line of authority in this court states that no such caution is required for evidence of past threats or other bad conduct by the accused against the victim, if such evidence is admissible in relation to motive. This is because such evidence is admitted on the basis that someone who has threatened or acted against a specific victim in the past is more likely to have engaged in bad conduct against the same victim than someone who has not, and a jury is permitted to draw an adverse inference of guilt from such conduct.
[66] This line of precedent began with R. v. Jackson (1980), 1980 2945 (ON CA), 57 C.C.C. (2d) 154, in which Justice Martin stated at pp. 168–69:
[W]here evidence of threats against the victim are admissible on the issue of motive, there is no requirement that the trial Judge should direct the jury that they are not to infer from the threats that the accused is a person who, from his criminal character or conduct, is likely to have committed the crime with which he is charged. Evidence of motive is a circumstance to be considered along with all the other circumstances. [Emphasis in the original text.]
[67] In R. v. Merz, supra at para. 59, Justice Doherty stated his agreement with the principle set down in Jackson:
I agree with the view expressed in Jackson. The evidence of the threats made by the appellant was evidence of motive which, in turn, constituted circumstantial evidence of identity and intent. I see no reason to warn the jury against using the evidence to infer propensity and hence to infer that the accused committed the crime when the more direct and powerful inference to be drawn from that evidence is that the accused had a motive to kill Ms. Murray. The trial judge properly instructed the jury as to how they could use evidence of motive. The limiting instruction normally given when evidence of prior bad acts by the accused is placed before the jury would make no sense in the context of evidence of motive. An instruction like that called for by the appellant could only serve to confuse the jury.
[68] This principle was more recently reaffirmed by Justice Moldaver in R. v. Krugel (2000), 2000 5660 (ON CA), 143 C.C.C. (3d) 367 at paras. 84–92 (Ont. C.A.). The appellant has not provided any arguments or countervailing authority to contest the logic supporting this precedent, and I see no reason for doing so.
[69] In the present case, the only issues contested at trial concerned the appellant’s intent and the defence of provocation. The trial judge in his voir dire ruling specifically explained, with regard to every item of past discreditable conduct evidence that he admitted, that he was admitting it as relevant to motive. He similarly labelled all of this evidence as going to motive in his charge to the jury.
[70] I therefore conclude that there was no need for the trial judge to provide a bad character caution in the jury charge and he therefore did not err by omitting such a caution.
iii. Reference to Appellant as “Somewhat Scary”
[71] The appellant attacks the trial judge’s charge to the jury on the basis of his use of the adjective “scary” in reference to the appellant.
[72] The trial judge made this remark in the context of explaining that the jury had to consider all of the evidence presented in order to determine whether any item of hearsay admitted under the principled exception was ultimately reliable. In doing so, the trial judge summarized and contrasted the evidence of the appellant to that of the Crown’s witnesses—who, as noted above, were permitted to testify to the accused’s threatening character vis-a-vis the victim as evidence of motive—as follows:
In essence, Mr. Pasqualino denies most, if not all, of those things that his wife said. If you believe what the witnesses say the deceased said about him, you will likely have a picture of a pretty volatile man subjected to fits of temper and violence and perhaps you might even find that the man was somewhat scary. The accused, on the other hand, depicts himself as quite different than what these witnesses seem to be picturing him. He describes himself as rather a calm person and an aggrieved person who mostly tried to keep the peace in the house, a person who wanted to wish his son on that day a happy birthday but was not given an opportunity to do so.
[Emphasis added.]
[73] In my view, the trial judge gave a balanced overview of the evidence presented by both sides and did not cause prejudice to the appellant by using the word “scary” for the purpose of contrasting the totality of the admissible evidence given by the Crown witnesses with the evidence given by the appellant.
iv. Conclusion on the Jury Charge
[74] I would reject the ground of appeal alleging errors in the jury charge.
3. Period of Parole Ineligibility
[75] The appellant submits that the trial judge’s imposition of a period of parole ineligibility of 13 years was harsh and excessive. In support of this submission, the appellant points to his lack of criminal record, the appellant’s remorse, and the deemed jury recommendation of 10 years.
[76] It is well-established that trial judges possess a broad discretion to fashion, within the sentencing range delineated by prior cases arising under similar contexts, sentences they reasonably determine to be fit for the circumstances of the individual offenders and offences that appear before them.
[77] After reviewing the trial judge’s sentencing reasons, I conclude that there is no reason to question the fitness of the sentence he has fashioned. In particular, with regard to the force of the deemed recommendation on parole ineligibility, this court has stated that “the jury’s recommendation must be considered in fixing the appropriate period”, yet “the jury’s recommendation need not be slavishly followed”: R. v. McKnight (1999), 1999 3717 (ON CA), 135 C.C.C. (3d) 41 at para. 55.
[78] The trial judge’s sentencing judgment indicated that he accurately identified the sentence range for a second-degree murder in the domestic context by an offender with no criminal record as encompassing a period of parole ineligibility of 10–14 years. The trial judge considered the deemed jury recommendation, as well as the other mitigating factors the appellant cites. He also took into account the victim impact statements and aggravating factors such as the history of abuse, but properly rejected the notion that it was the court’s role to mete out vengeance. The trial judge then gave cogent reasons as to why he thought the circumstances justified a period of parole ineligibility in excess of the deemed jury recommendation.
[79] In the final analysis, it was amply within the trial judge’s discretion to decide, despite the deemed jury recommendation and the appellant’s remorse and absence of prior criminal convictions, that a sentence of 13 years parole ineligibility was required to adequately deter and denounce a spousal murder committed by a husband who was “very abusive to his spouse … [and who] abused his position of trust toward her and their children.”
CONCLUSION
[80] As I can discern no reversible error in the trial judge’s conduct of the proceedings, I would dismiss both the conviction appeal and the appeal from the period of parole ineligibility.
RELEASED:
“JUL 11 2008” “H.S. LaForme J.A.”
“JL” “I agree John Laskin J.A.”
“I agree M. Rosenberg J.A.”