Court File and Parties

CITATION: R. v. Thrasher, 2008 ONCA 777

DATE: 20081120

DOCKET: C46045

COURT OF APPEAL FOR ONTARIO

Sharpe, Lang and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Luke Brown Thrasher

Appellant

Mara B. Greene, for the appellant

David Lepofsky, for the respondent

Heard: November 3, 2008

On appeal from the conviction imposed by Justice Thomas J. Lally of the Superior Court of Justice, sitting with a jury, dated March 30, 2006.

Reasons for Decision

Sharpe J.A.:

[1] The appellant and his co-accused, David MacDonald, were convicted of first degree murder in relation to the death of Robert LeClair. This appeal was heard together with that of the appellant’s co-accused. As there are common issues, these reasons should be read together with the reasons for judgment in R. v. MacDonald, 2008 ONCA 778.

[2] LeClair was found dead in the living room of his apartment. He had been brutally beaten and murdered one or two weeks earlier. The victim had suffered blunt force trauma to his head, in excess of 35 wounds to various parts of his body, and his throat had been slit. The apartment was found in disarray. On the living room floor, there was a broken toilet tank lid, a concrete block, a pair of scissors, clothes and a mattress, all of which had blood on them.

[3] Neither the appellant nor MacDonald testified at trial, although the appellant’s out-of-court statement to the police was admitted into evidence. The appellant initially told the police he never went to the victim’s apartment. When faced with DNA evidence from a cigarette butt found in the apartment, he admitted to being present when the murder took place and gave a detailed account of what had transpired. However, he attributed all acts of violence to his co-accused, MacDonald.

[4] The Crown also led evidence that the appellant confessed to his girlfriend, Melanie Gurnsey, and two other friends. Gurnsey testified that on one night in November, the appellant and MacDonald came home, high on cocaine, in an agitated state and covered in blood and confessed to killing LeClair. At the preliminary inquiry, Gurnsey testified that MacDonald made the confession in the presence of the appellant. At trial, she swore that it was the appellant who confessed in the presence of MacDonald. Gurnsey’s credibility was strongly attacked by the defence and was a central issue in the trial. Two other friends of the appellant, Sonia Lemmon and her husband Michael DesLauriers, also testified that the appellant had confessed his involvement in the murder to them.

ISSUES

[5] The appellant raises three grounds of appeal against his conviction for first degree murder. He argues that the trial judge erred by:

1. failing to provide an adequate limiting instruction in relation to the evidence of the appellant’s prior acts of violence;

2. failing to give a proper instruction with respect to the appellant’s statements to civilian witnesses; and

3. misdirecting the jury with respect to liability for first degree murder under s. 231(5)(e) of the Criminal Code. (On this issue, the appellant simply adopted the submissions made by MacDonald.)

ANALYSIS

1. Did the trial judge fail to provide an adequate limiting instruction in relation to the evidence of the appellant’s prior acts of violence?

[6] The appellant submits that the trial judge erred by failing to provide an adequate limiting instruction with respect to evidence that he had assaulted Melanie Gurnsey and others prior to the murder.

[7] This was not a case like R. v. B. (F.F.), 1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697, where no limiting instruction was given. Here, a limiting instruction was given and the issue is whether it was sufficient to deal with the appellant’s history of violence.

[8] The trial judge instructed the jury as follows:

There has been evidence that the accused used drugs, went to gay bars, and maybe, in the case of Mr. Thrasher, engaged in sexual acts with men, had criminal records, had been in jail, and lived a life style that many of you might not approve. This evidence came before you as a necessary part of what took place that was involved in this crime and these accused, and it cannot be used by you in determining their guilt or innocence.

The accused are charged with a specific crime: the murder of Mr. LeClair. The fact that you might not approve of their lifestyles, and that they were involved in drugs and other crimes, does not make them guilty of this crime, and should not influence your decision in reaching a verdict in this case.

[9] The appellant submits that the trial judge erred in failing to deal specifically with the evidence of the appellant’s propensity to violence and by failing to warn the jury about the danger of propensity reasoning.

[10] I do not accept the submission that the language of the limiting instruction regarding the appellant’s “lifestyle” and his “crimes” was insufficient to encompass the evidence that the appellant had, on occasion, been assaultive towards Gurnsey and others. Nor do I accept the submission that the trial judge was required to use the word “propensity”. No doubt the trial judge could have used different language to bring home to the jury that they were not to convict the appellant because he was the sort of person to commit this offence. However, I am satisfied that very message was delivered with sufficient clarity.

[11] In assessing whether the trial judge erred by failing to deal specifically with the appellant’s history of violence and the overall fairness of the charge in relation to propensity reasoning, I must read the impugned instruction in the context of how this trial unfolded and in light of the failure of the appellant’s trial counsel to object.

[12] The Crown did not invite propensity reasoning. The Crown used the evidence of the appellant’s assaultive behaviour to explain why Gurnsey feared the appellant and therefore had attributed the confession to MacDonald at the preliminary inquiry.

[13] On the other hand, counsel for MacDonald submitted to the jury – as he was entitled to do – that the appellant’s propensity for violence was relevant to his client’s defence that the appellant was the killer and that MacDonald was a passive observer. I pause to note that I do not agree with the appellant’s submission that this was the “core” of MacDonald’s defence, but it certainly was one aspect of his defence.

[14] Apart from a passing reference to MacDonald’s submission, the trial judge made no reference to this aspect of MacDonald’s defence. He did not charge the jury that the appellant’s propensity for violence was something the jury could take into account in relation to MacDonald’s defence. Such an instruction would have required the judge to distinguish the permissible use of propensity reasoning in relation to MacDonald’s defence and the impermissible use of propensity reasoning in relation to the Crown’s case against the appellant: see R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.), at para. 111, leave to appeal to S.C.C. refused (2001), 150 O.A.C. 197n and R. v. Pollock (2004), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213 (Ont. C.A.), at para. 109, leave to appeal to S.C.C. refused, [2005] 1 S.C.R. xiv. It would, however, have emphasized the fact that the appellant did have such a propensity and, given the complexity of the distinction, from the appellant’s perspective there was perhaps a risk that the jury might confuse what it could and could not make of the appellant’s propensity for violence.

[15] The trial judge conducted a line-by-line review of his draft charge and thereby afforded trial counsel advance opportunity to suggest changes and refinements. The appellant’s experienced trial counsel did not ask the trial judge to give a more explicit instruction regarding the appellant’s propensity for violence. He made no objection on this point after the charge was delivered. In my view, this is telling. Had he asked for a more explicit discussion of the appellant’s propensity for violence in the limiting instruction, he almost certainly would have invited a detailed Suzak instruction in relation to MacDonald’s defence. This might have only served to draw attention to the appellant’s propensity for violence and the appellant might well have been better off with the unspecific general instruction that the trial judge used.

[16] In any event, the failure of defence counsel to raise this point at trial is a factor to be considered in assessing the adequacy of the charge on this issue. It indicates that from the perspective of an experienced counsel who mounted a vigorous defence, on balance, the instruction as given was not prejudicial to the appellant.

[17] Accordingly, I would not give effect to this ground of appeal.

2. Did the trial judge fail to give a proper instruction with respect to the appellant’s statements to civilian witnesses?

(i) The relation of the facts to the law

[18] The appellant submits that the trial judge failed in his instructions to explain how the confessions of prior acts of perjury, the prior inconsistent statements, and the animus towards the appellant on the part of the witnesses who testified as to his involvement in the murder could affect the jury’s assessment of whether the statements were made, whether they were accurately conveyed, and whether they were true.

[19] I do not accept this submission. The trial judge gave the standard instruction on assessing witness credibility. He correctly instructed the jurors that they must first decide if the statement was made and that if they did not find that the appellant made it, it could not be used against him. He then reviewed, in detail, the evidence about the statements in issue. He gave a strong Vetrovec instruction with respect to two of the witnesses. In his summary of the parties’ theories of the case, he reviewed in detail the appellants’ attacks on the credibility of the Crown’s witnesses which was the central pillar of the case for the defence. Finally, and again tellingly, there was no objection to this aspect of the charge at trial.

(ii) Adequacy of the Vetrovec warning

[20] The appellant complains that while the trial judge gave a strong Vetrovec warning in relation to Melanie Gurnsey and Sonia Lemmon, he did not explain to the jury what kind of evidence could reasonably support the credibility of these witnesses, nor did he explain that to be confirmatory, the evidence had to relate to a material aspect of the case. The appellant submits that given the frailties of Gurnsey’s evidence, evidence that specifically supported her story that the appellant, as opposed to MacDonald, made the confession, was required. The appellant also argues that the trial judge was required, as part of his Vetrovec instruction, to explain not only what evidence supported her story, but also what evidence undermined it.

[21] I agree with the respondent that the Vetrovec instruction and the manner in which the trial judge dealt with the supporting and corroborating evidence was sufficient. The disreputable nature of Gurnsey and Lemmon and the need for treating their evidence with caution was a central issue at the trial. Counsels’ closing addresses focused extensively on whether these two witnesses were believable and reviewed evidence that either contradicted or corroborated their testimony.

[22] It is worth recalling that the central message from Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811 was, as Dickson J. put it at p. 823, to reject the “blind and empty formalism” of a “universal rule” in favour of a common-sense approach that vests trial judges with a broad discretion to decide how best to deal with the evidence. There is no prescribed, formulaic approach and no “ritualistic incantation” to be followed.

[23] The trial judge outlined the positions of counsel and reminded the jury both of the evidence that undermined Gurnsey’s story and the evidence that supported it. While this was done in a different section of the charge than the actual Vetrovec instruction, the jury was certainly not left in the dark as to the evidence that was capable of supporting Gurnsey’s story.

[24] Once again, it is important to note that the appellant’s trial counsel did not object, nor did he raise this issue during the pre-charge conference. Moreover, this was not a case where there was little or no evidence to corroborate the disreputable witness. The record was replete with corroborating evidence and it almost certainly would not have assisted the appellant if the trial judge had conducted a detailed review of that extensive body of evidence.

[25] I do not accept the appellant’s submission that the jury should have been told that it was only safe to rely on Gurnsey’s testimony if there was evidence to support her on the specific issue of who made the confession. We were cited no authority for raising the bar to such a high level and in my view, the proposition is contrary to established case law: see e.g. R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328.

[26] Accordingly, I would not give effect to this ground of appeal.

(iii) Hearsay evidence

[27] The appellant submits that the trial judge erred by failing to give an adequate instruction in relation to Lemmon’s evidence regarding the appellant’s statement to DesLauriers. Lemmon overheard one statement and DesLauriers told her about another.

[28] I see no error warranting appellate intervention. Neither the Crown nor the trial judge invited the jury to use Lemmon’s evidence of what DesLauriers told her the appellant said. When Lemmon testified, she made it clear she was trying to differentiate between what she heard Thrasher say on the one hand, from hearsay from DesLauriers about what Thrasher said to him, on the other. The appellant’s closing reminded the jury of Lemmon’s effort to limit her evidence to what she heard the appellant say. The trial judge gave the jury a general instruction on hearsay evidence and he distinguished what Lemmon said she heard from Thrasher’s lips as opposed to what she heard from DesLauriers’. Again, there was no objection raised by counsel either during the pre-charge conference or after the charge was given.

[29] Accordingly, I would not give effect to this ground of appeal.

3. Did the trial judge misdirect the jury with respect to liability for first degree murder under s. 231(5)(e) of the Criminal Code?

[30] The appellant adopts the argument advanced by the appellant MacDonald and, for the reasons given in the judgment disposing of that appeal, I reject this ground of appeal.

CONCLUSION

[31] Accordingly, I would dismiss the appeal.

“Robert J. Sharpe J.A.”

“I agree S.E. Lang J.A.”

“I agree G. Epstein J.A.”

RELEASED: November 20, 2008