R. v. Woods, 2008 ONCA 713

CITATION: R. v. Woods, 2008 ONCA 713

DATE: 20081016

DOCKET: C42305

COURT OF APPEAL FOR ONTARIO

Armstrong, Lang and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Peter Woods

Appellant

Joseph Di Luca and Peter Copeland, for the appellant

M. David Lepofsky and Daniel Guttman, for the respondent

Heard: September 10, 2008

On appeal from the conviction entered on July 10, 2002, by Justice J. Bryan Shaughnessy of the Superior Court of Justice, sitting with a jury.

Lang J.A.:

[1] This is an appeal from the appellant’s conviction for second degree murder, which followed a two-week jury trial presided over by Shaughnessy J. The appellant admitted he shot and killed his wife in the kitchen of their home on the evening of November 19, 2000. The appellant defended on the basis of accident, taking the position that he did not know the gun was loaded when he pointed it at the kitchen door and pulled the trigger. Thus, it was the defence position that the appellant did not intend to kill his wife.

[2] The appellant argues two grounds of appeal: first, that the trial judge erred in admitting the videotaped statement the appellant gave at the police station on the basis that the statement was tainted by the circumstances of the appellant’s earlier statements in the police cruiser; and second, that the trial judge erred in his instructions to the jury regarding the defence of accident as it relates to the issue of the appellant’s intent and the availability of a manslaughter verdict. I would not give effect to either ground of appeal.

[3] Regarding the first ground, I see no error in the trial judge’s conclusion that the appellant’s videotaped statement at the police station was not tainted by the circumstances surrounding his earlier statements in the police cruiser.

[4] The trial judge held the earlier cruiser statements, taken after the appellant’s 6:16 p.m. arrest on assault and weapons charges, were inadmissible. Those statements included the appellant’s stating that the shooting was an unintended accident, that he did not expect the gun to go off, that he did not think he could shoot or think that straight, that he was a gunsmith, that he was cleaning his gun, that his wife had “started bugging me” and that he had previously been of assistance to the police. In response to specific questions from a police officer about the ownership and type of gun, the appellant admitted it was his gun and said that it was a “.38 police special”. The trial judge ruled the police cruiser statements inadmissible because the Crown failed to prove voluntariness and reliability. In the cruiser, the experienced police officer, in contravention of the appellant’s s. 10(b) Charter rights, specifically asked the appellant about the gun “[k]nowing full well that the accused wanted to consult with his lawyer”. The trial judge had further concerns about the reliability and trustworthiness of the appellant’s statements in the cruiser because the police officer typed his notes with his right hand at the same time that he was driving the cruiser. The trial judge concluded that the admission of the cruiser statements would tend to render the trial unfair.

[5] The defence challenged the admissibility of the appellant’s subsequent statement videotaped at the police station. While much of that statement was exculpatory, its numerous inconsistencies were not helpful to the appellant. When the appellant arrived at the police station at approximately 6:49 p.m., the police took him to an interview room with working videotape equipment. Commendably, the entirety of the appellant’s contact with the police in the interview room was recorded. The police promptly advised the appellant that he was now charged with murder and cautioned him about his rights. At that time, the police did not caution the appellant not to be influenced by anything he had said earlier to other officers when he was in the cruiser. The police were initially unsuccessful in contacting the appellant’s counsel of choice, Ms. Boyd. However, the appellant spoke to duty counsel by telephone for about 14 minutes at 7:59 p.m. The police later located Ms. Boyd and the appellant spoke with her at 8:59 p.m. for about five minutes. The appellant later met for about 30 minutes with another lawyer, Mr. Cooke, at 11:30 p.m. In total, the appellant consulted with three different counsel for over 50 minutes in a four-hour period, during which time the police made no effort to question him except about the victim’s next-of-kin. Not until 12:54 a.m. did Detective Torrie interview and take a statement from the appellant. The interview concluded at 3:14 a.m.

[6] In ruling that the appellant’s videotaped statement was admissible, the trial judge recognized that Detective Torrie was not involved in the appellant’s statements in the cruiser. After discussion about a number of preliminary issues, the appellant willingly talked about the shooting. He gave various contradictory accounts of his actions and those of his wife, whether he knew the gun was loaded or he had loaded the gun that evening, how he reacted or even knew about a telephone call his wife made to a male friend, the amount of alcohol[^1] consumed by his wife on the evening of the shooting, his reactions to the telephone call and his wife’s drinking, his knowledge of guns, the mechanics of the .38 calibre gun in question, and his repeated statement that the shooting was an accident. The appellant explained that he had pointed the gun at the kitchen door with the intention of scaring, not shooting, his wife.

[7] In ruling the statement admissible, the trial judge noted that “there is nothing in the confessions rule which prohibits the police from questioning the accused in the absence of counsel after the accused has contacted or retained counsel.” He also concluded that there was nothing in the manner or duration of questioning that raised an element of oppression and that the appellant willingly volunteered information, even though he knew that he was not required to talk to the police and that he had been advised by counsel not to do so. The trial judge also recognized that the questions asked by the police were, for the most part, simple and straightforward and appropriate to the appellant’s limited cognitive abilities and that there was no police attempt to use aggressive techniques or non-existing or fabricated evidence to elicit answers from the appellant. The appellant was not asked any questions about the statements he gave in the cruiser.

[8] On appeal, the appellant argues that the station statement was tainted by the circumstances of the earlier cruiser statement. While not determinative, raising this issue for the first time on appeal suggests that the issue of tainting was not of significant concern to trial counsel.

[9] In any event, in our view, the police station statement was not tainted by the earlier cruiser statement. It was taken more than six hours after the appellant was advised of the new charges of murder. The statement, which was extensive, was taken in a different location by a different officer after the appellant had been given his right to counsel, had consulted three different lawyers and had acknowledged that he understood he was not required to answer the officer’s questions.

[10] The officer who took the cruiser statement was not present during the station interview and, indeed, had left the station some two hours earlier. During the course of the station interview, the appellant willingly volunteered information, sometimes without prompting. The interviewing officer did not refer to nor rely on the cruiser statement in his questioning of the appellant, nor was there anything in the cruiser statement that would have compelled the appellant to want to give a further explanation to the police. In both interviews, the appellant consistently maintained that the shooting was an accident. Accordingly, there was no nexus between the cruiser and station statements. In my view, the station statement was a “fresh start” in accordance with the principles discussed in R. v. Plaha (2004), 2004 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.).

[11] While it would undoubtedly have been ideal, with the benefit of hindsight, if Detective Torrie had also cautioned the appellant not to be influenced by anything he had said earlier to other officers, such a caution was not required in the circumstances of this case where the combination of the temporal, causal and contextual connections between the two statements was so weak.

[12] Regarding the second ground, the appellant argues that the trial judge, who he concedes otherwise instructed the jury properly on the defence of accident in relation to causation and unlawful act, erred in instructing the jury regarding the defence of accident as it relates to the issue of the appellant’s intent and the availability of a manslaughter verdict.

[13] This was not a complicated trial. The jury knew that intent was the central issue and that it was the position of the defence that the appellant did not intend to kill his wife because he did not know or appreciate that the gun was loaded and in light of his position that the bullet must have ricocheted off another object.

[14] In addition to forensic evidence, the jury had the appellant’s 9-1-1 call and the videotape to assist them with the appellant’s intention. In those statements, the appellant admitted that he had shot his wife in the head, that he was going to shoot himself rather than go to jail, that he had a .38 calibre police gun, that he had been upset by his wife, that he had pointed the gun, that he had intended to scare his wife, that he had pulled the trigger and that the shot from the gun had killed his wife. On several occasions in his statements, the appellant said that the shooting was an accident and that he had not intended to kill his wife. Thus, the only issues at trial were whether the appellant knew the gun was loaded, where he aimed the gun when he pulled the trigger and his intention in doing so.

[15] The jury also had the defence expert evidence about the appellant’s cognitive impairment and whether that level of impairment affected either his statements or his intent. However, based on the appellant’s ability to maintain consistent employment for 37 years, his scores on cognitive testing, and his demeanour and responses to the questions posed, the expert was unable to give an opinion that supported the defence position. Although the defence still argued in closing that the appellant was “borderline mentally retarded”, which should be taken into account in determining the issue of his intent, the trial judge instructed the jury that the evidence did not support this argument. The defence neither objected to this instruction nor raised the issue on appeal.

[16] In this context, the trial judge instructed the jury on the issue of intent, making it clear that the jury could not convict the appellant of murder unless the Crown had proven the specific intent required. The trial judge told the jury that if the appellant did not mean to kill his wife, or did not mean to cause her bodily harm with its likely consequences, the appellant would not be guilty of murder. The trial judge explained this a number of times in different ways. While it would have been better if the trial judge had given more explicit instructions for unlawful act manslaughter, the jury would have been left in no doubt about the required intent before it reached a verdict or murder and not manslaughter.

[17] In the course of his instructions on intent, the trial judge reviewed the evidence, including the appellant’s inconsistencies in his statement and his repeated assertion of accident. The trial judge addressed the “test for intent under s. 229(1) of the Criminal Code”. To help the jury “understand that intent” he took them to their jury booklet and drew their attention to the required intent. He concluded this portion of his charge by repeating that intent is required for murder and told the jury that if the Crown had not proved that intent, and the jury found unlawful act, their verdict would be manslaughter. Specifically, he instructed the jury and the jury would have understood that: “[i]f David Woods did not mean to do either, that is, he did not mean either to kill Donna Pritlove, or he did not mean to cause Donna Pritlove bodily harm that David Woods knew was likely to kill Donna Pritlove, and was reckless whether Donna Pritlove died or not, David Woods committed manslaughter.”

[18] In stating the positions of the parties near the end of his charge, the trial judge told the jury that it was “the position of the Crown that Mr. Woods intentionally caused the death of Donna Pritlove and is therefore guilty of second degree murder”, that “[t]he real issue is whether this homicide was intentional or not” and that the “only logical and overpowering inference, according to the Crown, to be drawn is that Mr. Woods intended to kill Donna Pritlove when he pulled the trigger.”

[19] In light of the trial judge’s instructions, the jury must be taken to have known the required intention for a conviction of murder. To arrive at the verdict of murder, the jury would have had to conclude that the appellant intended to kill his wife. The jury clearly rejected the appellant’s evidence that that he did not know the gun was loaded, that he did not intend to kill his wife and that her death was accidental. Since it is apparent from the verdict that the jury concluded the appellant intentionally killed his wife, a verdict of manslaughter was not open to them. In those circumstances, I would not give effect to this ground of appeal.

[20] I would accordingly dismiss the appeal.

RELEASED: “RPA” October 16, 2008 “S.E. Lang J.A.”

“I agree Robert P. Armstrong J.A.”

“I agree G. Epstein J.A.”

[^1]: The toxicology report indicated that the victim had no alcohol in her system at the time of her death.