CITATION: R. v. MacDonald, 2008 ONCA 778
DATE: 20081120
DOCKET: C46116
COURT OF APPEAL FOR ONTARIO
Sharpe, Lang and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
David Slade MacDonald
Appellant
Vincenzo Rondinelli, 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.
Sharpe J.A.:
[1] The appellant appeals his conviction of first degree murder. This appeal was heard together with that of the appellant’s co-accused, Luke Thrasher, who was also convicted of first degree murder. As there are common issues, these reasons should be read together with the reasons for judgment in R. v. Thrasher, 2008 ONCA 777.
[2] The facts giving rise to the charge of first degree murder are briefly set out in Thrasher. The Crown’s case against the appellant was not as strong as the case against Thrasher since Thrasher’s out-of-court statements were not admissible against the appellant. However, there was still considerable evidence against the appellant. DNA from a cigarette butt found in the victim’s apartment matched that of the appellant. The police surreptitiously recorded a conversation between the appellant and Thrasher while they were being driven to a bail hearing in which the appellant made a statement from which it could be inferred, at the very least, that he had been present when LeClair was murdered. Finally, there was Melanie Gurnsey’s evidence of Thrasher’s post-murder confession made in the presence of the appellant and her testimony that the appellant contributed details indicating his acquiescence in its truth.
[3] The appellant raises three grounds of appeal.
1. Unreasonable verdict
[4] The appellant submits that Melanie Gurnsey’s evidence was so fraught with lies, contradictions and inconsistencies with other evidence led by the Crown that the conviction cannot survive judicial scrutiny when viewed “through the lens of judicial experience which serves as an additional protection against an unwarranted conviction”: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 40.
[5] In my view, there is no merit to this submission. There is no question that Gurnsey’s evidence was problematic from a variety of perspectives. Those problems were very much the focus of this trial. Gurnsey was subjected to vigorous cross-examination and her lies and inconsistencies were probed in great detail by both defence counsel in their closing addresses. The trial judge reviewed those positions in his instructions and the jury was given a strong Vetrovec warning.
[6] I am not persuaded that there is any principled basis to distinguish this case from countless others that turn on the credibility and reliability of a disreputable witness. It was up to the twelve ordinary men and women on the jury who sat through the trial to assess her evidence and to decide whether the Crown had proven its case beyond a reasonable doubt.
[7] The appellant further submits that the verdict of first degree murder under either s. 231(2) or s. 231(5)(e) of the Criminal Code was unreasonable as the evidence adduced at trial did not support a finding of either “planning and deliberation” or “forcible confinement” on the part of the appellant.
[8] I reject this submission. In my view there was evidence which, if believed by the jury, could support a verdict of first degree murder either on the basis of planning and deliberation or forcible confinement.
[9] It was open to the jury to find that there was planning and deliberation by accepting Gurnsey’s evidence that Thrasher, in the presence of the appellant, described how he had said to the appellant after they had severely beaten the victim “we’re going to have to kill him” to prevent the victim from identifying them. Gurnsey also testified that the appellant said that it took a long time to kill the victim, again providing indication of a prolonged and deliberate killing. The crime scene evidence also indicated a prolonged attack involving both deliberation and unlawful confinement. The evidence that the appellant had tried to get the victim’s PIN number and that, before they slit the victim’s throat, the appellant had gone more than once to an ATM in an attempt to get cash, was further evidence from which the jury could find that the murder had been committed in the course of an unlawful confinement.
2. Did the trial judge misdirect the jury with respect to liability under s. 231 (5)(e)?
[10] The appellant submits that the trial judge failed to adequately instruct the jury as to the constituent elements of first degree murder under s. 231(5)(e) of the Criminal Code based on death caused while the offence of unlawful confinement is being committed. That section reads:
231(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:
(e) section 279 (kidnapping and forcible confinement) [Emphasis added.]
[11] It is clear from the italicized words that in order to be convicted of first degree murder under s. 231(5)(e), an accused must himself or herself have caused the death: see R. v. Almarales, 2008 ONCA 692. On the other hand, the phrase “when death is caused by that person” is broad enough to include an accused who assists in the murder provided that the accused is a substantial cause of the death: R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306.
[12] The appellant relies on the following passage from Harbottle at p. 325 where Cory J. identified five elements of first degree murder under the predecessor to s. 231(5):
[A]n accused may be found guilty of first degree murder pursuant to s. 214(5) if the Crown has established beyond a reasonable doubt that:
(1) the accused was guilty of the underlying crime of domination or of attempting to commit that crime;
(2) the accused was guilty of the murder of the victim;
(3) the accused participated in the murder in such a manner that he was a substantial cause of the death of the victim;
(4) there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim; and
(5) the crimes of domination and murder were part of the same transaction; that is to say, the death was caused while committing the offence of domination as part of the same series of events.
[13] The impugned portion of the jury instructions reads as follows:
In respect to the charge of first-degree murder, an accused cannot be guilty of first-degree murder as an aider or abettor, he must be a principal - an active participant in the killing - and, where planning and deliberation are relied on, an active participant in the plan and the deliberation, and where committing the offence of unlawful confinement is relied on, an active participant in the unlawful confinement. Of course, there can be two principals - two active participants.
[14] The appellant submits that the trial judge failed to instruct the jury with respect to the third and fourth elements set out in Harbottle.
[15] The appellant submits that the jury could well have convicted him of first degree murder without finding that he “participated in the murder in such a manner that he was a substantial cause of the death” as they would or could have understood that his participation in the forcible confinement alone rendered him guilty of first degree murder.
[16] I disagree with this submission. As I read the impugned passage from the charge, the trial judge clearly instructed the jury that the accused could not be convicted of first degree murder unless the jury were satisfied of the following:
(1) that he had been an active participant in the killing and;
(2) an active participant in either
(a) the planning and deliberation or
(b) in the unlawful confinement, as the case may be.
[17] If the accused was “an active participant in the killing” as well as “an active participant in either the planning and deliberation or in the unlawful confinement”, he “participated in the murder in such a manner that he was a substantial cause of the death”.
[18] I note that in David Watt, Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005) at p. 458, both the phrases “active participant in the killing” and doing “something that is an ‘essential and integral part of the killing’” are used to explain the same element as if they are equivalents. I agree with that interpretation. Moreover, the trial judge instructed the jury on aiding and abetting in relation to second degree murder. In this portion of his charge, he explained that the appellant could not be convicted of first degree murder on that basis. This provided the jury with further guidance on the need for the Crown to prove the appellant’s active involvement in the killing itself.
[19] While the safer course is to follow all of the language recommended in Watt’s Manual, I cannot say that in this case, when the instruction is read as a whole, that the trial judge erred by using the phrase “active participant in the killing”.
[20] The fact that the trial judge did not instruct the jury that there must be no intervening cause is immaterial in the circumstances of this case as there was no evidence of any intervening cause. I note that the trial judge conducted a detailed review of his instructions at the pre-charge conference. The appellant’s trial counsel brought up the issue of intervening cause in the context of the issue of forcible confinement, but, when questioned by the trial judge, admitted that there was no evidence of an intervening cause and, in the end, voiced no objection to the trial judge’s charge.
[21] Accordingly, I would not give effect to this ground of appeal.
3. Did the trial judge fail to relate evidence to the critical issues?
[22] The appellant submits that the trial judge failed to relate the evidence to the critical issues of planning and deliberation, forcible confinement and the evidence capable of supporting Gurnsey’s evidence, which was subject to a Vetrovec warning.
[23] I disagree. The trial judge identified the evidence capable of supporting planning and deliberation and forcible confinement when summarizing the position of the Crown. Reading the charge as a whole, I am satisfied that the jury could be left in no doubt as to how the evidence related to these central issues.
[24] For the reasons given in Thrasher, I am satisfied that there was no error in relation to the Vetrovec warning and the issue of corroboration.
[25] Finally, again on these points, trial counsel did not mention the need for more explicit instructions during the pre-charge conference and did not object after the charge was given.
CONCLUSION
[26] 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