Court of Appeal for Ontario

Citation: R. v. Szanyi, 2010 ONCA 316

Date: 2010-04-30

Docket: C48459

Before: Blair and LaForme JJ.A. and Durno J. (ad hoc)

Between:

Her Majesty the Queen Respondent

and

Lewis Derek Szanyi Appellant

Counsel: Margaret Bojanowska and M. Gourlay, for the appellant David Lepofsky, for the respondent

Heard: March 15, 2010

On appeal from a conviction for second degree murder imposed by Justice David Little of the Superior Court of Justice sitting as a Youth Court Judge with a jury.

R.A. BLAIR J.A.:

Introduction

[1] Mr. Szanyi has admitted to robbing and killing Billy Smith during the early morning hours of November 16, 2004. He was 17 years old at the time. At the opening of trial, he pled guilty to robbery and manslaughter, but the Crown declined to accept the plea to manslaughter. He was convicted of robbery and of second degree murder by Justice David Little of the Superior Court of Justice (sitting as a Youth Court Judge) and a jury.

[2] The only significant issue at trial was whether the appellant had the necessary mental intent for murder. The jury concluded that he did and convicted. He appeals from that conviction, alleging that the trial judge erred:

a) by failing to provide an instruction specifically explaining how the common sense inference (that a person generally intends the natural and probable consequences of his or her act) may be affected by evidence of intoxication;

b) by failing to instruct the jury on the differing effects of “mild” intoxication and “advanced” intoxication on the requisite mens rea for second degree murder;

c) by failing to incorporate a reference to “proof beyond a reasonable doubt” in his answer to a jury clarification question regarding the decision tree for second degree murder; and

d) by failing to give the jury a prohibited inference caution regarding bad character evidence in relation to evidence arising from a “Mr. Big” operation.

[3] I would not give effect to any of these grounds of appeal, and would dismiss the appeal, for the reasons that follow.

[4] Before proceeding further, however, I note that s. 110(2) of the Youth Criminal Justice Act, S.C. 2002, c.1, permits publication of the identity of the appellant once he has been sentenced as an adult, which is the case here. At trial, however, the judge ordered that the Crown receive notice if anyone applies to copy or broadcast video exhibits showing undercover police officers. On consent, that order is continued.

Facts

The Fatal Incident

[5] The appellant and his young friends were well into the hard life of drugs and alcohol – and theft in order to support their habits – when, on the night in question, they decided to rob Mr. Smith of a sizeable amount of drugs which they understood he had in his apartment. The robbery went bad and in the course of the confrontation the appellant stabbed Mr. Smith 13 to 18 times.

[6] Three of the knife wounds were to Mr. Smith’s head (one beside his right eye, another through the top of his ear to his scalp). Four deep wounds (up to 6 cm.) were to the back, three of which were up to 6 cm. deep. One of the wounds to the back caused Mr. Smith’s death.

[7] The robbery had been planned earlier in the evening by a group of people gathered at another person’s apartment in the absence of the appellant. The appellant initially refused to participate, but was later recruited. His girlfriend testified that, prior to the group leaving for the robbery, she had checked the appellant for weapons, since she did not want him to get into trouble. He was nevertheless able to leave armed with a knife that he had obtained during an earlier break and enter that same evening.

[8] Following the stabbing, the appellant and two others fled Mr. Smith’s apartment and returned to the party at the friend’s home. The appellant later disposed of the knife.

[9] There was ample evidence that the appellant and his friends had been consuming significant amounts of alcohol and drugs throughout the evening, although the precise amount of the appellant’s consumption was never clearly established. The appellant did not give evidence, but his male friends testified that they were all intoxicated and high that night.

The “Mr. Big” Operation

[10] In support of its investigation, the police launched a “Mr. Big” operation in which an undercover police officer posed as an underworld operative who could facilitate a meeting with “Mr. Big”, a major organized crime player (played by another undercover officer), and help him to work his way into his organization. The undercover officers asked the appellant to be completely honest about his past. They offered to help make the charges go away if the appellant provided details of what happened, but insisted that they had to know “100%” of what happened so that they would know what it was they had to deal with.

[11] After initially insisting that he had remained in the car at the time of the incident, the appellant ultimately responded to these blandishments by providing a full and damning confession. He explained that when they got to the door of Mr. Smith’s apartment and asked for weed, Mr. Smith refused, fought back, and tried to push the door closed. Since no one else stepped up, the appellant kicked in the door, put a gun or a gun replica to the victim’s head, and in the ensuing exchange – “when I started doing what I had to do” (as he said in his confession) – stabbed Mr. Smith a number of times. The confession was admitted without objection.

Analysis

Grounds 2 and 3

[12] We did not call upon the Crown to respond to the second and third grounds of appeal raised by the appellant.

“Mild” vs. “Advanced” Intoxication

[13] While the trial judge did not use the terms “mild” and “advanced” to distinguish between levels of impairment or intoxication and the different effects different levels might have on the appellant’s state of mind for murder, it was not essential that he use such a formulaic approach. The trial judge gave the following instruction:

The defence in this case raised the issue that Mr. Szanyi may have lacked the necessary intent due to his state of impairment or intoxication caused by the ingestion of alcohol and drugs he consumed at Sawyer’s place before the robbery. Let me tell you that while intoxication is self-induced and exists in varying degrees, it can cause a person to cast off restraint and act in a manner that he would not act in while sober. That is no excuse for committing the offence if he had the state of mind required. You are to examine the reliable evidence dealing with his consumption that evening.

Consider the length of time over which the consumption or ingestion took place and all the other evidence that relates to his state of mind at the time the offence was committed. Consider what he did, what he did not do, and what he said or did not say. In doing so, you are to look at Derek Szanyi’s words and conduct before, during and after. This will help you to determine the state of mind. In spite of his ingestion of drugs and alcohol, he acknowledges having the state of mind to commit the robbery.

Did he have the state of mind to commit the murder? It is for you to use your common sense. You should ask yourself, did Mr. Szanyi act instinctively in the sudden excitement of the moment? Was he thinking about the consequences? Did he intend to cause bodily harm to Mr. Smith that he knew was likely to kill Smith, was he reckless as to whether or not Mr. Smith might die?

There is some evidence as to the effects of certain drugs and alcohol on the mind and in this case, you must take into consideration in determining the accused’s state of mind, remembering all the while the purpose of the trip to Smith’s apartment, and the effect that alcohol had or did not have on the accused.

Did it just affect his inhibitions, or was the effect of the drugs and alcohol such as to impact upon his forming the necessary intent? You must consider all of the evidence on that point and be satisfied beyond a reasonable doubt.

[Emphasis added.]

[14] We were quite satisfied that the foregoing instruction sufficiently brought home to the jury the need to distinguish between milder and more advanced forms of intoxication for purposes of determining the appellant’s state of mind. Indeed, as the Crown points out, the last portion of the charge cited above in italics was considerably more favourable to the defence than the appellant was entitled to expect: “the effect of the drugs and alcohol” must be more than simply “to impact upon [the appellant’s] forming the necessary intent”; the effect must lead him not to form the specific intent for murder.

[15] Accordingly, we would not give effect to this ground of appeal.

Failure to Instruct on Reasonable Doubt When Responding to the Jury’s Question Regarding the Decision Tree

[16] Nor would we give effect to the argument that the trial judge erred by failing to incorporate a reasonable doubt instruction into his response to the jury’s clarification question regarding the decision tree for second degree murder.

[17] After deliberating for some time, the jury asked the following question:

Can you please clarify the #2 position of the decision tree. A few of us believe we (sic) instructed two different ways.

[18] The second branch of the decision tree dealt with the mens rea requirement for murder in s. 229(a)(ii) of the Criminal Code R.S.C. 1985, c. C-46 – did the appellant mean to cause bodily harm that he knew was likely to cause death, and, if so, was he reckless whether death ensued or not? The question did not address the burden of proof, and the trial judge’s answer was responsive to the question put to him. While it may have been preferable had he tacked on the usual reminder that they must be satisfied on these matters beyond a reasonable doubt, it is clear, on reading the charge as a whole, that the jury was amply and adequately instructed on the need to be satisfied beyond a reasonable doubt on all elements of the offence charged.

[19] I turn now to the two issues upon which we heard full argument.

Ground 1

[20] The appellant first contends that the trial judge erred by not specifically linking the need for the jury to consider the evidence of impairment and intoxication with its consideration of the “common sense” instruction. I do not agree.

[21] In the portion of his charge dealing with the “recklessness” aspect of the second branch of the test for mens rea under s. 229(a)(ii), the trial judge instructed the jurors that they may draw the common sense inference from the probable consequences of a person’s actions that the person usually intends or means to cause those consequences. This is what he told them (some of this is cited above, but is repeated here for context and convenience):

It is worth noting that when considering the term reckless, the box in the middle, number two[^1], considering that term of reckless, whether Mr. Smith died or not, you can consider the likelihood that Mr. Smith could die from the injuries he sustained, but that Szanyi went ahead anyway and took that chance. You may conclude, as a matter of common sense, that if a person does something that has predictable consequences, that person usually intends or means to cause those consequences. But it is simply one way for you to determine a person’s actual state of mind. What he actually meant to do is a conclusion that you may only reach, however, after considering all of the evidence. It is not a conclusion you must reach, it is for you to decide whether you reach that conclusion in this case.

The defence in this case raised the issue that Mr. Szanyi may have lacked the necessary intent due to his state of impairment or intoxication caused by the ingestion of alcohol and drugs he consumed at Sawyer’s place before the robbery. Let me tell you that while intoxication is self-induced and exists in varying degrees, it can cause a person to cast off restraint and act in a manner that he would not act in while sober. That is no excuse for committing the offence if he had the state of mind required. You are to examine the reliable evidence dealing with his consumption that evening.

Consider the length of time over which the consumption or ingestion took place and all the other evidence that relates to his state of mind at the time the offence was committed. Consider what he did, what he did not do, and what he said or did not say. In doing so, you are to look at Derek Szanyi’s words and conduct before, during and after. This will help you to determine the state of mind. In spite of his ingestion of drugs and alcohol, he acknowledges having the state of mind to commit the robbery.

Did he have the state of mind to commit the murder? It is for you to use your common sense. You should ask yourself, did Mr. Szanyi act instinctively in the sudden excitement of the moment? Was he thinking about the consequences? Did he intend to cause bodily harm to Mr. Smith that he knew was likely to kill Smith, was he reckless as to whether or not Mr. Smith might die?

There is some evidence as to the effects of certain drugs and alcohol on the mind and in this case, you must take into consideration in determining the accused’s state of mind, remembering all the while the purpose of the trip to Smith’s apartment, and the effect that alcohol had or did not have on the accused.

Did it just affect his inhibitions, or was the effect of the drugs and alcohol such as to impact upon his forming the necessary intent? You must consider all of the evidence on that point and be satisfied beyond a reasonable doubt.

[Emphasis added.]

[22] The obligation of a trial judge when instructing the jury is to link the common sense inference to the evidence of impairment and intoxication. The trial judge must do this in a way that ensures the jurors understand (a) that they are not bound to draw the inference, (b) that the inference may only be drawn after a consideration of all the evidence, including the evidence of intoxication, and (c) that the inference cannot be applied if the jury is left with a reasonable doubt about the accused’s intention: R. v. Seymour 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252, at paras. 19-23; R v. Daley 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 104.

[23] However, no formulaic wording is necessary to accomplish that purpose. As Bastarache J. noted for the majority in Daley, at para. 53:

While I agree that the inquiry under s. 229(a)(ii) is whether the accused possessed the ability to foresee the consequences of his action and the main determination in cases involving a defence of intoxication to a second degree murder charge will be whether the accused’s degree of intoxication affected this ability, and that it is very important for the jury to understand this, I do not think this Court’s jurisprudence goes so far [as] to require that a particular phrase expressly making this link be included in the charge, the absence of which leads to reversible error. As discussed above, appellate courts must consider whether the charge, as a whole, conveyed the necessary instruction to the jury, not whether particular words or a particular sequence was followed. [Emphasis added.]

[24] Here, I do not think there can be any doubt that the charge read as a whole – and particularly the passage cited in para. 21 above with respect to the common sense inference and the defence of intoxication – conveyed to the jury the necessary link between drawing that inference and not doing so without considering the evidence of intoxication. The common sense inference instruction is given. In the next three sentences the jurors are told that they are not required to draw the inference, that it is only one way of determining a person’s state of mind, and that they must only draw the inference after considering all the evidence (impairment and intoxication are not excluded). Then, in the next paragraph of the instructions – commencing only six lines after the common sense instruction is given – the trial judge tells the jurors about “[t]he defence … that Mr. Szanyi may have lacked the necessary intent due to his state of impairment or intoxication.” All of this is prefaced by establishing the setting for this line of analysis: consideration of the term recklessness and “the likelihood that Mr. Smith could die from the injuries he sustained but that [Mr.] Szanyi went ahead anyway and took that chance.” Finally, after some further instructions on determining the appellant’s state of mind for murder, including a further reference to the issue of foreseeability of consequences and the effects of alcohol and drugs on his state of mind, the trial judge reminded the jury again of the Crown’s obligation to prove the appellant’s intent for murder beyond a reasonable doubt.

[25] Would it have been preferable for the trial judge to have imported the magic words “including the evidence of impairment or intoxication” into the charge after telling the jurors that the common sense inference was only to be drawn “after considering all of the evidence”? Probably. But I am satisfied that the charge as a whole, and in particular the passage outlined above, conveyed the necessary instruction to the jurors that they had to make the link between the drawing of the inference and the evidence of impairment or intoxication.

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

Ground 4

[27] More troubling is the trial judge’s failure to give the jury the standard limiting instruction concerning the impermissible use of bad character evidence for propensity reasoning, in this case, bad character evidence arising from the Mr. Big operation. The jury heard considerable evidence about the appellant’s criminal record, his association with disreputable characters, his prior bad conduct, and his abuse of illicit drugs. In the end, however, I am satisfied that the trial judge committed no reversible error in his charge on this issue, having regard to a number of factors.

[28] First, all of the Mr. Big evidence was led by the Crown without objection from the defence, as part of its case, because defence counsel had indicated to the court and to the Crown that the appellant would be testifying. From the Crown’s perspective, the essential part of the Mr. Big evidence was the inculpatory confession ultimately provided by the appellant to the undercover police officers. This confession also went in without objection and – as Mr. Lepofsky put it during argument – was “somewhat of a body blow” to the defence. It seems clear that the defence’s willingness to have all of the Mr. Big evidence on the record was attributable to its tactical decision to use that evidence as perhaps its only realistic hope of overcoming the damaging nature of the confession. Quite possibly, the ultimate decision by the appellant not to testify was based on the premise that it was not going to get any better for him if he did, and that the Crown’s case had already painted the evidentiary picture for the jury as well as it could be done from the defence perspective.

[29] This brings me to the second, and important, factor leading to the conclusion that in the end the trial judge committed no reversible error in this regard. The defence made a tactical decision – quite understandable in the circumstances – to rely upon the bad character evidence arising from the Mr. Big operation in support of its position that the confession was mere “puffery” made by a gullible young man who wanted to ingratiate himself with criminal elements and whose criminal antecedents made him an easy prey for such a sting. While I think the admissibility of some of the Mr. Big evidence might well have been a matter of debate – particularly the appellant’s boast that he had previously stabbed a friend in the neck because he had been drinking and the friend was making a mess and wouldn’t stop – the defence can hardly complain when it (a) failed to object to the admissibility of the evidence and (b) sought to utilize the bad character evidence for its own permitted propensity purposes.

[30] In his closing submissions, defence counsel urged the jury to consider the context in which the appellant’s statements – including, of course, the confession – were made to the undercover officers during the Mr. Big sting: they amounted to the braggadocio of a young man with a coloured past seeking to find favour with Mr. Big and must be “viewed through that prism.” Defence counsel told the jury:

[The undercover officers] had a purpose, that is to exploit the greed of their target in order to ultimately get him to say something about what had happened at 206, and ultimately, it succeeded. And the fact that the greed was motivated by some desire to become involved in a criminal organization, in my respectful submission, is again, not a piece of evidence that ought to assist you one way or the other in evaluating my client.

The plan was targeted, the investigation was targeted in such a way as to exploit the type of person that they believed Mr. Szanyi was, somebody who was familiar with what went on on the streets and somebody who did not have money . …

But what’s important for you to remember, in my respectful submission, is [the undercover officer’s] concession under cross-examination that oftentimes, oftentimes when he’s working in an undercover capacity, he is lied to. And as I understand his explanation for that proposition, it’s because at least some of what goes on on the street involving people who are involved in this type of activity, is based on bragging or puffery, is based on deception, is based on you wanting others to believe that you’re tougher, or bigger, or smarter, or richer or more clever when it comes to dealing drugs or whatever than you really are.

And so, when you consider everything that has been reported or recorded in terms of what my client is alleged to have said, I ask you to consider it carefully, don’t just consider the words, or what you suspect are their meaning but consider the context in which they’re being spoken, and whether or not they are really as reliable as they would be if they were spoken directly out of the witness box, for instance; in other words, was there puffery or bragging going on? Was there deception involved?

[Emphasis added.]

[31] Thirdly, the trial judge did, in fact, tell the jurors to “ignore” the appellant’s past. He was alerted to the issue by Crown counsel during the pre-charge conference. Crown counsel referred the trial judge to the fact there had been a number of conversations between the appellant and the undercover officers regarding the appellant’s criminal history, and reminded the trial judge that “the jury [had] heard quite a lot of nasty stuff about Mr. Szanyi.” The trial judge acknowledged this, and agreed to incorporate an instruction into the charge, indicating that he would “just say that the fact that he may have had a youth record or anything else doesn’t matter, discharge it from you mind and just deal with the facts in this case alone, period.” The Crown agreed and defence counsel made no objection or comment.

[32] In the charge, the trial judge did more or less what he had said he would do. He told the jury:

While you are considering the evidence, you are not to take into account, in looking at this charge, the fact that Szanyi has spent considerable time in custody and that he is likely to have committed murder. Ignore his past, and decide on the facts in this case.

[33] Further, the trial judge specifically instructed the jury that they were not to draw any adverse inference from a person’s criminal record, beyond assessing their testimonial credibility, and, in keeping with the foregoing approach, when it came to his review of the evidence, the trial judge completely played down the Mr. Big evidence. With respect to that evidence, he said only the following:

The evidence of the two police officers in the Mr. Big play, you have. I am not going to review that with you.

[34] As Mr. Lepofsky submits, this instruction may have been overly favourable to the appellant because it made no mention of the appellant’s damning admissions to the undercover officers respecting the killing, nor did it list the extensive evidence corroborating the confession. After both counsel had heard how the trial judge dealt with the Mr. Big evidence, only the Crown objected. The Crown objected because the trial judge had not reviewed the confession, as it “was such a salient part of [the] case.” It is reasonable to infer that defence counsel did not object because he was quite content with the manner in which the trial judge dealt with that evidence.

[35] Mr. Gourlay argues, nonetheless, that the bad character evidence was highly prejudicial, as was the portion of the instruction cited above that the jurors were not to take into account “that [the appellant] is likely to have committed murder.” While he acknowledges that the evidence of the claimed extrinsic misconduct was relevant and probative to the credibility of the admissions in question, he submits that the trial judge was obliged to instruct the jurors on the proper use of this highly prejudicial evidence in a way that made it clear they were not to engage in the sort of propensity reasoning that is prohibited, i.e., that trial judge was required to tell the jurors they were forbidden from concluding that because the appellant was a person of bad character who had committed other crimes he was therefore a person with a propensity to commit further crimes, and this crime in particular: see R v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at paras. 26 and 34; R v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 72 .

[36] In the circumstances of this case, however, I am not persuaded that the trial judge committed reversible error in failing to give the standard “propensity” charge. I say this for a number of reasons. First, as cited above, he clearly and specifically instructed the jurors to “ignore [the appellant’s] past and decide on the facts of this case.” Secondly, he did not review the evidence of the two police officers regarding “the Mr. Big play”, thus minimizing the risk of highlighting the bad character evidence in the eyes of the jury. Thirdly, the Crown did not seek to rely on the bad character evidence or on the Mr. Big evidence in any way, except for the confession to this murder. Lastly, the defence did.

[37] The defence adopted the deliberate and understandable tactic of relying upon the appellant’s admissions about his active criminal past in order to support his position that he was “the type of person” whose antecedents led him to be easily lured into a criminal organization and who would engage in “puffery and bragging” about his past – including confessing to the killing of Billy Smith – in order to become a part of such an organization, thus impugning the reliability of that confession. On these facts, it cannot be said that the Crown was trying to ease its burden by stigmatizing the appellant as a bad person: Handy, at para. 72.

[38] In the very unusual circumstances of this case, therefore, the trial judge was justified in leaving the bad character instruction as he did, downplaying the Mr. Big evidence, and leaving the jury to deal with the confession and to roll with the defence submissions relating to it, as he did. I do not think he committed reversible error in doing so.

[39] In the alternative, if the trial judge did err in failing to give the standard limiting instruction, I am satisfied – for the same reasons that lead me to conclude he need not have given the instruction – that the error occasioned no substantial wrong or miscarriage of justice in the very unusual circumstances of this case: Criminal Code, s. 686(1)(b)(iii).

Conclusion

[40] For the foregoing reasons, I would dismiss the appeal.

“R.A. Blair J.A.”

“I agree H.S. LaForme J.A.”

“I agree B. Durno J. (ad hoc)

RELEASED: April 30, 2010

[^1]: This is a reference to the decision tree.