COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacKenzie, 2012 ONCA 910

DATE: 20121224

DOCKET: C48416

Goudge, Rouleau JJ.A. and Ray J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Richard MacKenzie

Appellant

Timothy Breen, for the appellant

Alexander Alvaro, for the respondent

Heard: November 29, 2012

On appeal from the conviction entered on October 30, 2007 by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting with a jury.

Goudge J.A.:

[1] On October 30, 2007, after a trial by judge and jury, the appellant was found guilty of first degree murder.

[2] He appeals his conviction, citing a number of errors in the charge to the jury and arguing that the verdict was unreasonable.

[3] For the reasons that follow, I would dismiss the appeal.

[4] In broad outline, the Crown’s evidence was as follows. The deceased was an 83-year-old woman who lived alone in her home in central Toronto. She had been born without a left forearm. On March 18, 2004 someone broke into her home. The intruder covered her mouth with adhesive tape. While taped, she vomited. Because the tape prevented her from expelling the vomit, she choked and died of asphyxiation. There was no evidence that she had been bound. Her body was found in the basement of her home. After she died, a fire was set around her body.

[5] The preceding fall, the appellant was one of the work crew who excavated a part of the deceased’s basement. While working there, he found a bag of five Nazi daggers that had belonged to the deceased’s late husband. He stole one and sold it to an antique dealer. The appellant told the dealer he may have additional items for sale. On the morning of the killing, the appellant placed another call to that dealer. The same day, cellular records placed the appellant in the vicinity of the deceased’s home.

[6] The Crown called evidence from Joseph Cachia and Joanne MacKenzie (no relation to the appellant), who said that the appellant told them he had entered the deceased’s home in an attempt to steal more property. She had surprised him in the basement, but dropped to the ground during the confrontation. He thought she was dead. He panicked and set the fire to cover his tracks. MacKenzie’s evidence was that the appellant said he never intended to kill the woman and had even attempted suicide afterwards.

[7] The pathology evidence called by the Crown was that there were no significant external indications of blunt force injury or penetrating injury. Death occurred before the fire was set. The cause of death was asphyxiation due to the aspiration of gastric contents. Liquid stomach contents were observed in the nostrils and the mouth of the deceased. It was reasonably plausible that the vomiting related to the emotional distress of being gagged. If the victim was conscious prior to choking, “air hunger” would have produced extreme distress likely visible to an observer. If the victim was unconscious prior to choking, external signs of distress would be less obvious, although either conscious or unconscious, choking could have produced a seizure. The bruising of the victim’s tongue correlated quite well with a seizure but could also have occurred while the victim was struggling against the gag. The process from airway obstruction to death would have been rapid.

[8] The defence called no evidence.

[9] The Crown’s theory was that the appellant was the intruder. He entered the deceased’s home on March 18, 2004 and placed the adhesive tape over her mouth. The Crown expressly conceded that the act of applying the gag could not support an inference of an intention to kill. The Crown said the appellant was present when the decease vomited and died and in preventing her from removing the gag or in failing to do so himself, the appellant possessed the intent required for murder. Since the murder occurred in the course of the unlawful confinement of the deceased, the appellant was guilty of first degree murder.

[10] At trial, the appellant conceded that the intruder caused the deceased’s death by placing the gag over her mouth. However, his defence was that the prosecution had not established beyond a reasonable doubt that he was the intruder.

[11] Because much of the appellant’s case in this court rests on criticisms of certain aspects of the instructions that the trial judge gave to the jury, it is helpful to outline the parts of the charge most relevant to his arguments.

[12] The trial judge began with the usual general instructions to the jury on their role as the final judges of the evidence, their assessment of the credibility of witnesses, the presumption of innocence, the burden of proof, the meaning of reasonable doubt, and the proper approach to fact-finding. He then made clear the two essential matters that the Crown had to prove beyond a reasonable doubt to establish murder: first, that that appellant was the person who unlawfully killed the deceased by placing the gag over her mouth, thus causing her death; and second, that sometime after doing so, he possessed the intention to cause her death or bodily harm that he knew was likely to cause death. Identity and intention were thus the two essential matters to be proven beyond a reasonable doubt in this case.

[13] After reviewing the evidence he considered most relevant to identity, the trial judge turned to intention. He first described what he called “hard or undisputed facts” relevant to that issue. He referred to the intruder entering the house, then gagging the deceased who, most likely while conscious, became agitated, vomited and eventually died. Finally he referred to the intruder building a fire around her body.

[14] The trial judge went on to outline three scenarios of may have happened that day. These were for the jury to consider in addressing the issue of intention:

(a) The intruder was present when the deceased, who was conscious, became emotionally agitated, started to vomit and then died. On this scenario, the jury could infer beyond a reasonable doubt that the intruder intended to kill the deceased.

(b) The intruder was present, but the deceased was unconscious when she started to vomit. On this scenario the jury could still find the intention for murder beyond a reasonable doubt, but only after carefully considering whether the intruder would have realized that she was in physical distress.

(c) The intruder was not present when the deceased began to vomit and died. On this scenario the intruder could not have formed the intention required for murder.

[15] The trial judge then instructed the jury on the meaning of unlawful confinement that would elevate the killing to first degree murder. After reviewing the positions of the Crown and the defence, he closed by summarizing these various scenarios once again.

ANALYSIS

First Issue: The Trial Judge’s Review of the Evidence

[16] The appellant argues that the trial judge’s review of the evidence was inadequate in three respects.

[17] He says that the “hard and undisputed” facts referred to by the trial judge overstated the certainty of the evidence. In particular, he says that the pathology evidence was that agitation was not necessarily the cause but only one of a number of possible causes of the vomiting, that when she vomited it was not most likely the deceased was conscious, but could have been either conscious or unconscious, and that death would follow choking rapidly not just eventually. The appellant also says that in describing the various scenarios the trial judge’s references to the deceased having a seizure and to the intruder most likely being present were tainted in the same way.

[18] In my view, while the evidence was rather less certain on these points than the charge reflects, the trial judge made clear in his general instructions that the jury was bound to act on their own view of the evidence, not his. There was no objection to the trial judge’s reference to “hard and undisputed facts”. Moreover, reading the charge as a whole, I think it apparent that when the trial judge moved to the various scenarios he was not describing facts he viewed as hard and undisputed. In the end, it was clear to the jury that in addressing intention they were obliged to determine whether or not the victim had experienced any form of distress following the placement of the gag, whether the appellant was present when the distress occurred, and whether he was able to observe the distress. The jury would have understood that these were the key factual questions it had to address.

[19] The appellant also argues that the trial judge failed to review in any detail the evidence that could support the appellant not being present when the deceased vomited. In my view, this was not necessary. This aspect of the charge attracted no objection. The relevant evidence was neither complicated nor disputed. Defence counsel’s primary position was that the appellant was not the intruder but counsel also described for the jury why they could find that the intruder was not present when the victim vomited. In the circumstances, I would not fault the trial judge for leaving to counsel the task of organizing the evidence into their respective theories.

[20] Finally the appellant says that the trial judge should have reviewed for the jury the appellant’s statements to Cachia and MacKenzie and invited them to consider the relevance of those statements to the appellant’s intention. In my view, these statements were not consistent only with the appellant not intending to kill the victim. They were at best equivocal on the issue of intention. In particular, they constituted evidence that the deceased died in the appellant’s presence. The appellant suffered no prejudice from the lack of review of these statements.

[21] In short, none of the appellant’s concerns about the trial judge’s review of the evidence provides a basis for appellate intervention.

Second Issue – The Legal Duty to Act

[22] In the course of his charge, the trial judge told the jury that a person who placed adhesive tape over an elderly person’s mouth, and who then became aware that the elderly person was in distress, was under a legal duty to remove it. The appellant says that no such duty exists in Canadian criminal law such that a breach can serve as the actus reus of the offence and that this aspect of the charge also obscures the mental element required for murder.

[23] I do not read the charge quite this way. The trial judge did not attempt to set up an unlawful failure to remove the tape as the actus reus of this offence. Apart from his relatively brief reference to the legal duty to act, throughout his charge, the trial judge clearly instructed the jury that the placing of the tape over the mouth of the victim, and then preventing its removal thereby causing her asphyxiation and death, was the actus reus for murder. As well, in his brief reference to the legal duty to act, the trial judge reiterated that the intention required was that the victim die or suffer bodily harm that the perpetrator knew was likely to cause death or was reckless whether death ensued. The reference to the legal duty to act did not obscure the charge concerning either the actus reus or the mens rea.

Third Issue – Admissibility of Cachia’s Statements to the Police

[24] The appellant argues that the trial judge erred in admitting the evidence of Detective Nealon concerning the statements made to him by Cachia. The appellant says that this was prejudicial because it tended to support the credibility of Cachia’s in-court evidence.

[25] Again I do not agree. The detective’s evidence was clearly admissible to show that Cachia had knowledge from the appellant that was not available in the public domain. The detective’s evidence was therefore admissible to rebut the defence suggestion that Cachia had fabricated his evidence about what the appellant had told him. In addition, the trial judge gave the jury clear instructions, both mid-trial and in his charge, that the evidence of Cachia having previously made statements similar to his testimony in court could not be used to support the credibility of that testimony. This addressed the very risk that the appellant raises.

Fourth Issue – Unreasonable Verdict

[26] The appellant argues that the verdict of murder depended on a finding that the appellant was present when the deceased vomited and asphyxiated. He says that there was no direct evidence of this nor could it be reasonably inferred. Hence his conviction is unreasonable.

[27] I do not agree. Although there was no evidence of physical restraint of the deceased, it was entirely reasonable for the jury to infer that the appellant was present. The “air hunger” that the gagged victim would have experienced on vomiting would have driven her to tear the tape off to save herself unless the appellant had been there to keep her from doing so.

Fifth Issue – The Trial Judge’s Use of Various Scenarios

[28] The appellant says that when he turned to the issue of intention, the trial judge erred in three different ways by describing for the jury the three different scenarios together with the available verdicts for each.

[29] First, the appellant argues that the trial judge presented the case to the jury as a choice they must make between these scenarios and that this invaded their fact finding function.

[30] I do not agree that the trial judge’s jury approach had this effect. He made clear to the jury that regardless of his view of the facts, it was their duty to reach their own conclusions about what happened. After he went on to describe the three scenarios, counsel raised no objection to this approach. Once the jury found the appellant to be the intruder, their task was to determine on all the evidence what occurred that day in the deceased’s house and realistically these three scenarios were the alternatives. Moreover two of them – that when she vomited the appellant was present but the deceased was unconscious, or that the appellant was not present – were favourable to the appellant in that they offered a basis upon which the jury could have a reasonable doubt on the question on the intention required for murder.

[31] Then the appellant argues that in framing the three scenarios, the trial judge effectively made the appellant’s presence when the deceased vomited an essential element of the offence of murder. However he had never told the jury that presence had to be established beyond a reasonable doubt.

[32] I do not read the charge that way. The trial judge presented the three scenarios to the jury as three ways that the evidence might be viewed in their consideration of intention. If the jury found the evidence to support a particular scenario, their task was to decide on that scenario whether, considering all the evidence, the requisite intention had been established beyond a reasonable doubt. While two of the scenarios required a finding of the appellant’s presence, presence alone did not establish intention. The trial judge instructed the jury to consider all of the evidence, including for example, signs of the victim’s distress that would have been observable to the appellant.

[33] Since presence did not establish intention, it did not rise to an essential element of the offence. The case is different from R. v. Quidley, 2008 ONCA 501, [2008] 232 C.C.C. (3d) 255 (Ont. C.A.), where the voice identification evidence and the translation of the recorded conversations were sufficiently central to the prosecution’s case that they became for all practical purposes almost the same as the essential elements of the offence. The charge erred by suggesting that an inadequately low burden of proof was sufficient for these two specific matters. In this case, there was no similar misdirection. The jury was required to consider other factors, not just the appellant’s presence in concluding whether the intention for murder was established beyond a reasonable doubt. On these facts it would not have been proper to instruct the jury that presence alone had to be established beyond a reasonable doubt in order to convict the appellant of murder.

[34] Finally, the appellant argues that by presenting the scenarios to the jury the trial judge invited them to examine the evidence in a two-stage process. That is, first the jury was instructed to determine if the appellant was present when the victim began to vomit and hence which scenario applied. Then the jury was told that having determined the question of presence, they should go on to decide if the intention required for murder was proven beyond a reasonable doubt. The appellant’s submission is that this way of proceeding removed any potential concerns about the evidence of presence from the jury’s application of reasonable doubt to the issue of intention.

[35] In my view the trial judge’s approach did not carry that risk. He told the jury that if they could not find that the appellant was present when the deceased began to vomit, they could not find the intention required for murder but only for manslaughter. While two of the scenarios required presence, choosing between the two required the jury also to determine whether the deceased was conscious or not. Thus presence did not dictate which scenario applied.

[36] More importantly, the jury understood that within each scenario, they were to consider the totality of the evidence, including the evidence about the appellant’s presence in concluding whether they were left with a reasonable doubt about intention. They would not have excluded presence from this task. Thus I do not think that the trial judge invited the jury to engage in the two-stage process of considering the evidence that the appellant suggests.

[37] In summary, I find no error in the trial judge’s use of the various scenarios in his charge. Since this argument, like the others raised by the appellant must be rejected, I would dismiss the appeal from conviction.

Released: December 24, 2012 (“S.T.G.”)

“S.T. Goudge J.A.”

“I agree Paul Rouleau J.A.”

“I agree T. Ray J. (ad hoc)