COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnstone, 2014 ONCA 504

DATE: 20140630

DOCKET: C54136

Gillese, Rouleau and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Lyle Johnstone

Appellant

Alan D. Gold, for the appellant

Elise Nakelsky and Sean Doyle, for the respondent

Heard: May 20, 2014

On appeal from the conviction entered on February 4, 2010 by Justice Robert Pelletier of the Superior Court of Justice, sitting with a jury.

Rouleau J.A.:

Facts

[1] The deceased, Mary Lou Wolfe, lived alone in Newington, Ontario. She was a health care worker, responsible for home care visits to clients. She had two children, Jamie and Erin. Erin was married to the appellant and lived nearby. She had a spare key for the deceased’s home which she kept hanging inside the door of the house she shared with the appellant.

[2] On January 11, 2006, Ms. Wolfe was found dead in the bathroom of her home. She had been left lying face down covered in blood and completely naked except for her underwear which were partially rolled down. She had suffered multiple blows and stab wounds to her face, neck and body, and she had injuries consistent with strangulation. She died from a horrific neck wound, described by the forensic pathologist as an “incomplete decapitation”. Her head was left dangling by a five-inch piece of skin at the back of her neck.

[3] Ms. Wolfe was found by her step-sister, Dolores Stubbs, who had entered Ms. Wolfe’s home to check on her after not seeing any activity in the home and after Ms. Wolfe’s employer had told Ms. Stubbs that she had been unexpectedly absent from work.

[4] Physical and forensic evidence established that the attack originated in Ms. Wolfe’s bedroom while she was in bed.

[5] She was severely assaulted there and then appears to have been dragged from her bed to the bathroom. The evidence suggested that Ms. Wolfe’s sweatshirt had been taken off after the stabbing had begun. Damage to the bathroom door confirmed that Ms. Wolfe had locked the door and taken refuge there. The marks on the inside of the door indicated that Ms. Wolfe had sat on the floor, leaning against the back of the door while bleeding profusely. A pattern of bloody boot prints revealed that her killer had twice travelled between the bedroom-bathroom area and the kitchen. The murder weapon was a steak knife, evidently taken from Ms. Wolfe’s cutlery drawer and found near her body. The blood-soaked blade was broken into several pieces, with one piece embedded in her bloody sweatshirt found near the body.

[6] The appellant’s fingerprints were found on a serrated knife located on a kitchen chair and the appellant’s palm print was recovered from an otherwise clean stovetop. No other fingerprints were found at the scene and no other cutlery was out of place.

[7] Blood on the kitchen stove and inside the cutlery drawer contained DNA belonging to both the appellant and Ms. Wolfe. The evidence led at trial indicated that the appellant had not been inside Ms. Wolfe’s house since the previous summer.

[8] There was no sign of forced entry into Ms. Wolfe’s home. Only the bathroom door exhibited damage consistent with the application of force to the door from outside the bathroom.

[9] The motive alleged by the Crown at trial was that the appellant was upset by Ms. Wolfe’s plans to help her daughter and daughter’s two children, Sara and Charlie, move away from the appellant because of the appellant’s generally disruptive behaviour. Sometime before the murder, during an argument with the appellant, Erin blurted out Ms. Wolfe’s plan. The appellant responded by telling Erin that she would never leave with his son.

[10] On the night of January 9 and into the early morning hours of January 10, 2006, the appellant was out all night. He had consumed a large quantity of alcohol and was searching for cocaine. For several hours after midnight or so, his whereabouts were unaccounted for.

Evidence of post-offence conduct

[11] The Crown led evidence of post-offence conduct, including evidence that the appellant showed up at his friend’s house around 5:30 a.m. on January 10 in need of a shower. He rushed into his friend’s bathroom, wearing only his boxer shorts, holding a pair of work boots and a shirt, and stated “if anyone asks, I wasn’t here.”

[12] The Crown also led evidence that in the days following Ms. Wolfe’s murder, the appellant exhibited somewhat suspicious conduct including: getting rid of his brand new work boots (explaining that oil had spilled into them); lying to his boss on the morning after the murder by claiming that he had been up all night with his child at the hospital; getting rid of or washing his clothes (explaining that he had spilled transmission fluid on them); and falsely claiming that his fingerprints might be on Ms. Wolfe’s body because he had been having a sexual relationship with her.

Evidence of other disreputable conduct

[13] The Crown also brought an application seeking to adduce evidence of other disreputable conduct as relevant to the Crown’s theory that the appellant’s motive for killing Ms. Wolfe was to prevent her from helping the appellant’s spouse and son move away.

[14] The trial judge allowed the application in part. He determined that the Crown could lead evidence of the appellant’s alcohol and drug consumption, of his gambling habits, of his frequent absences from home, and of financial difficulties including evidence of Ms. Wolfe lending money to her daughter and the appellant and their being unable to pay it back, in part because of his alcohol and drug consumption.

[15] The trial judge, however, would not allow the Crown to lead evidence of an incident in which the appellant damaged a China cabinet in anger or evidence of sexual relations the appellant was alleged to have had with a 14-year-old babysitter some five years before the murder.

[16] The appellant did not testify and did not call a defence.

Issues

[17] In his factum, the appellant raises four grounds of appeal. Prior to the hearing of the appeal, the appellant advised that he was not pursuing one of these grounds, namely the trial judge’s disallowance of his application to adduce evidence of an alternative suspect, Ron Deschambeault.

[18] At the hearing of the appeal, the appellant relied on his factum in respect of two of the grounds: whether the trial judge erred in allowing evidence of other discreditable conduct and whether the trial judge erred in his instructions to the jury on the use they could make of the appellant’s post-offence conduct.

[19] The appellant’s oral submissions focused on the final ground of appeal, whether the trial judge’s instructions on first degree murder were correct.

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

Analysis

(1) Did the trial judge err in allowing evidence of other discreditable conduct?

[21] The appellant argues that the trial judge erred in allowing the Crown to lead evidence of the appellant’s substance abuse, gambling and financial difficulties. In his submission, that evidence was not admissible as it did not go directly to the appellant’s alleged motive for the killing. It was only relevant to the peripheral issue of Ms. Wolfe’s motive for wanting to assist her daughter and grandchildren to leave the appellant. Further, the evidence was unnecessary given that the appellant did not contest the claim that Ms. Wolfe planned to move the family away. However, the evidence of bad character led by the Crown was clearly prejudicial as it showed the appellant to be a generally bad person. As a result the appellant maintains that the evidence was not relevant and any probative value it may have had was outweighed by its prejudicial impact.

[22] I disagree. Although evidence of other discreditable conduct is presumptively inadmissible, it may nonetheless be admitted if it satisfies two criteria: (1) it is relevant to one or more issues at trial; and (2) its probative value outweighs its prejudicial effect: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 71, 150.

[23] This was a circumstantial case in which the identity of the killer was contested. The appellant suggested that the true culprit was the deceased’s step-sister, Ms. Stubbs, on the basis that she had opportunity and motive. The appellant’s motive and the relative strength of that motive were, therefore, genuine issues for the jury. The evidence of discreditable conduct led at trial tended to prove that Ms. Wolfe did formulate a moving plan and that the appellant, having learned of it, would have been motivated to prevent it from being implemented.

[24] Contrary to the appellant’s submission, there is no requirement of a direct connection between the evidence of discreditable conduct and the appellant’s motive to kill Ms. Wolfe. The evidence of the appellant’s prior misdeeds must simply be relevant to a live issue at trial: Handy, at para. 73. The evidence of his substance abuse, gambling and financial difficulties was probative as it provided support for the Crown’s theory that the appellant would have taken seriously Ms. Wolfe’s plan to move her family away from him and therefore had a motive for killing Ms. Wolfe.

[25] The risk of prejudice was very limited. The prior discreditable conduct was akin to the evidence the jury would hear in any event regarding the appellant’s conduct leading up to and after the murder. The risk of prejudice is further reduced by the fact that the evidence of other discreditable conduct goes to conduct far less serious than that for which the appellant stood charged.

[26] Finally, the evidence was neither lengthy nor complicated and was not seriously challenged by the appellant.

[27] Deference is due to a trial judge’s decision because the trial judge is in the best position to assess the significance of the evidence and the impact it may have on the jury. I see no basis to interfere.

[28] The appellant then argues that the trial judge’s instructions were deficient in that they failed to include “an explicit statement of the rationale for the rule [governing permissible and impermissible uses of evidence of other discreditable conduct] and the prohibited uses so that the jury properly understood this important rule.”

[29] I would not give effect to this submission. The trial judge properly instructed the jury both in a mid-trial instruction and in his final instructions on both the permitted and prohibited uses of this evidence. The appellant provides no authority for the proposition that the trial judge must provide “an explicit statement of the rationale for the rule”. As explained in R. v. Samuels, 2013 ONCA 551, 310 O.A.C. 175, at para. 48, “the question is whether or not the instruction accomplished its purpose, not whether it follows a particular formula”. Here the combined effect of the trial judge’s mid-trial and final instructions accomplished their purpose and nothing more was required.

(2) Did the trial judge misdirect the jury on the use it could make of the appellant’s post-offence conduct?

[30] The appellant argues that the trial judge misdirected the jury on the proper use of the evidence of post-offence conduct when, towards the end of his charge, he stated only that the evidence needs to be consistent with a guilty mind but failed to state that it must be inconsistent with any other explanation.

[31] I would not give effect to this submission. In the portion of his charge dealing with post-offence conduct, the trial judge, at the outset, clearly explained the proper use of this evidence. He told the jury that they could not use that evidence to help them decide whether the appellant committed the offence unless they were “able to reject any other innocent explanation for what [the appellant] may have done or said”. He repeated this caution later in this portion of the charge telling the jury that after determining what was actually said or done, they should “decide what weight you give that evidence in considering whether it is consistent with someone who committed the offence or not or what other innocent explanations there are.”

[32] The trial judge then went on to review the items of evidence of post-offence conduct and he concluded with a reminder that “you must consider any other explanation for what he may have done or said. It is only if you decide that his conduct after the murder is consistent with the guilty conscience that you can use this evidence in helping you decide, together with all of the other evidence, whether the accused is guilty.” It is this last portion of the charge on post-offence conduct that the appellant claims is deficient because it does not repeat the earlier caution that they must “reject any other innocent explanation.”

[33] Read in context, the challenged wording was simply a reminder by the trial judge of the caution he gave at the outset of this portion of the instruction. It emphasized the fact that the appellant’s lifestyle was not on trial and that the jury could not infer from the bad character evidence that the appellant was more likely to have committed the offence. Read in its entirety, the charge makes clear that post-offence evidence was probative, if at all, only if the jury were able to reject any other innocent explanation. The final reminder not to infer guilt from the bad character evidence did not undermine the clear earlier statements.

(3) Did the trial judge misdirect the jury on first degree murder?

[34] In his factum and in oral submissions, the appellant argued that the trial judge committed several errors in instructing the jury as to what was needed to find the appellant guilty of first as opposed to second degree murder. The appellant alleges three separate misdirections in the instructions: (a) on unlawful confinement; (b) on sexual assault; and (c) as to what is necessary to elevate murder from second to first degree pursuant to s. 231(5) of the Criminal Code, R.S.C. 1985 c. C-46.

[35] I will deal with each of these concerns in turn.

(a) The instruction on unlawful confinement

[36] The appellant does not take issue with the portion of the trial judge’s charge setting out the requirements for first degree murder pursuant to s. 231(5) where the murder is accompanied by the additional offence of unlawful confinement. In that portion of the charge the trial judge explained that the jury would have to conclude that Ms. Wolfe’s death was

part of a continuing series of events constituting a single transaction that establishes both her death and the distinct offence of unlawful confinement. The required connection is established if the unlawful confinement creates a continuing illegal domination of the victim that provides the accused with a position of power which he exploits in order to murder the victim.

Confinement that is inherent or necessarily accompanies the act of killing is not unlawful confinement which would render first degree murder.

[37] The appellant argues, however, that the trial judge misdirected the jury when, in summarizing the Crown’s position, he told the jury that:

[T]he Crown argues that the evidence established that the murder was first degree since, according to the Crown, the deceased found herself confined in the bathroom area as a direct consequence of the accused’s actions and that he exploited this position of domination in committing murder.

[38] In the appellant’s submission there was no basis in the evidence from which the jury could conclude that Ms. Wolfe had been “confined” to the bathroom. In the appellant’s view, Ms. Wolfe was not confined to the bathroom. She had locked the bathroom door and the appellant was trying to “un-restrain her” by breaking down the door.

[39] I would reject this submission. Ms. Wolfe was unlawfully confined “if for any significant period of time” she “was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire”: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24. The only reasonable inference from the evidence led at trial was that the appellant’s attempt to “un-restrain” Ms. Wolfe was to get access to her in order to kill her. There is no suggestion that he sought to open the door in order to allow her to leave. The evidence pointed to Ms. Wolfe having been dragged to the bathroom by the appellant and her being left there while he went to the kitchen to obtain a knife. During this time he stood between Ms. Wolfe and any possible escape. Ms. Wolfe would have locked the door in the hope that it might prevent further assaults. From the moment the appellant left to obtain a knife up until he returned to the bathroom with the knife, there can be little doubt that Ms. Wolfe was not free to “move about according to her own inclination and desire”. The appellant’s submission that she was not confined and that he simply sought to “un-restrain” her is without merit.

[40] The appellant then argues that there was no evidentiary basis for the jury’s finding that the separate offence of unlawful confinement had been committed. Any unlawful confinement that might have occurred in this case was, according to the appellant, confinement incidental to the murder. The confinement was part of and for the purpose of the murder.

[41] I disagree. Section 231(5)(e) of the Code applies when an accused causes death “while committing or attempting to commit” unlawful confinement. As Binnie J. wrote for a unanimous Supreme Court in Pritchard, at para. 35, the murder and unlawful confinement must be

linked together both causally and temporally in circumstances that make the entire course of conduct a single transaction …. The temporal–causal connection is established where the unlawful confinement creates a ‘continuing illegal domination of the victim’ that provides the accused with a position of power which he or she chooses to exploit to murder the victim. [Citations omitted.]

[42] The murder and unlawful confinement, however, must constitute discrete criminal acts. They cannot be one and the same. Doherty J.A. explained the rationale in R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 56 O.R. (3d) 18 (C.A.), at para. 108:

[A] confinement which is inherent in the very act of killing could not be relied on to impose liability under s. 231(5)(e). This is not because there is no confinement, but because s. 231(5)(e) requires two discrete criminal acts, a killing that amounts to murder and a confinement that is unlawful. It is the occurrence of the two criminal acts in the course of the same transaction or series of events that justifies the added punishment imposed for first degree murder.

[43] As explained in R. v. Menard, 2009 BCCA 462, 281 B.C.A.C 14, at para. 24, the confinement and the killing “cannot be so closely connected that they are coextensive, that the confinement is consumed in the killing, that they are one and the same” (emphasis in original).

[44] On the facts of this case, all of the elements to establish murder are made out in the period commencing when the appellant forced his entry into the locked bathroom. Everything that had occurred before the appellant broke into the bathroom is sufficiently distinct from the killing so as to constitute a different offence or several different offences. This would include the initial assault by the appellant in the bedroom, his dragging (as suggested by the evidence) Ms. Wolfe to the bathroom, confining her by blocking any possible escape while he equipped himself with a knife, and his illegal domination of her throughout. All of these discrete unlawful acts are linked temporally and causally in circumstances such as to make the entire course of conduct a single transaction as required under s. 231(5)(e). They are not, therefore, “consumed” in the killing, as explained in Menard.

[45] Whether the appellant intended to confine Ms. Wolfe solely for the purpose of killing her or for some other purpose is of no moment. As Doherty J.A. explained in Kimberley, at para. 107:

[I]f in the course of a continuous sequence of events an accused commits the crime of unlawful confinement and chooses to exploit the position of dominance over the victim resulting from that confinement to murder the victim, then the accused has committed first degree murder as defined in s. 231(5)(e). The purpose of the confinement is not relevant. [Emphasis added.]

Similarly, the Supreme Court in Pritchard rejected the argument that where the purpose of an unlawful confinement is to carry out an offence not listed in s. 231(5), the unlawful confinement does not justify the application of s. 231(5). At para. 31, the Court quoted with approval the response of the British Columbia Court of Appeal in R. v. Gourgon (1979), 1979 CanLII 4436 (BC CA), 19 C.R. (3d) 272, at p. 279: “Nothing is expressed or implied in those sections about the purpose of the confinement. Neither is there anything in the history of the legislation to suggest a limitation of that nature to be placed upon the word ‘confinement’” (emphasis added by the Supreme Court).

[46] Therefore the question here is simply whether the appellant intended to confine the victim, and whether the confinement was a distinct criminal act. The appellant’s ultimate purpose in confining the victim is not relevant to assessing the distinctness of the confinement from the act of murder. The trial judge’s instructions adequately conveyed to the jury the mens rea requirements of both offences and the importance of deciding whether they were discrete criminal acts.

[47] On the evidence there is no way of knowing exactly how long the confinement lasted. Ms. Wolfe may have been confined to the bathroom and bedroom areas of the home for several minutes or for an hour or more. We do not know. She may have been dragged to the bathroom as the evidence suggests or she may have found her own way there when the appellant went to get the knife. There was, however, ample evidence from which a jury could conclude that it was the appellant’s actions of dominating Ms. Wolfe that led her to take refuge behind the locked bathroom door. Ms. Wolfe had no reasonable escape route and was confined up until the murder. The confinement was not coextensive with and consumed in the killing, but rather created an illegal domination of the victim that the appellant then chose to exploit to murder her: see R. v. Luxton, 1990 CanLII 83 (SCC), [1990] 2 S.C.R. 711, at p. 723; Pritchard, at para. 35, Kimberley, at para. 107. In other words, “there was confinement not limited to what was ‘integral to’ the particular act of killing disclosed by the evidence”: Pritchard, at para. 27 (emphasis in original).

(b) The instruction on sexual assault

[48] The appellant raises two objections to the trial judge’s charge on sexual assault. He argues that the trial judge ought to have specifically instructed the jury that the appellant’s intention or lack of intention of a sexual nature is a highly relevant factor.

[49] I do not view the trial judge’s failure to give such a specific direction as constituting an error. The trial judge properly instructed the jury on the elements of sexual assault. The sexual nature of an assault is to be determined objectively from the perspective of a reasonable observer. A sexual purpose or intention is not an essential element and the offence may be made out in the absence of any evidence of sexual intention and even where the accused’s intention was not sexual. This court in R. v. V. (K.B.) (1992), 1992 CanLII 7503 (ON CA), 8 O.R. (3d) 20 (C.A.), aff’d 1993 CanLII 109 (SCC), [1993] 2 S.C.R. 857, stated as follows, at p. 23:

What elevates an assault to a sexual assault will depend on the circumstances of each case. A sexual assault does not require sexuality and, indeed, may not even involve sexuality. It is an act of power, aggression and control. In general, sexual gratification, if present, is at best a footnote.

Just as Parliament criminalized assault because certain conduct represents an unacceptable interference with the victim’s physical integrity, Parliament has criminalized sexual assault because it represents an unacceptable intrusion upon, or violation of, the victim’s sexual privacy or integrity.

[50] Intention of a sexual nature is simply one factor to be considered in determining whether the assault was sexual, “the importance of which will vary depending on the circumstances”: R. v. Chase 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at p. 302. There was, in this case, ample evidence from which a jury could conclude that the assault was not only violent but also of a sexual nature. Ms. Wolfe was found almost naked, her underwear partially rolled down with a swipe blood pattern near her upper buttocks. Her blood-soaked sweatshirt was found nearby in circumstances and in a condition suggesting that it had been removed during the attack. The trial judge did not, on the facts of this case, err in failing to specifically instruct the jury that whether or not the appellant had a sexual intention or purpose was a highly relevant factor.

[51] The appellant also submits that the trial judge further erred in his instruction on sexual assault when he told the jury that the physical contact that took place between the appellant and Ms. Wolfe was of a sexual nature if “the contacts violated the deceased’s sexual integrity or privacy” (emphasis added).

[52] In the appellant’s submission the insertion of “sexual privacy” in the charge is not supported by the jurisprudence and is overly broad and vague. He argues that privacy and integrity are not sufficiently similar to be used interchangeably.

[53] I would not give effect to this submission. I acknowledge that the cases in which the Supreme Court of Canada has dealt with sexual assault generally refer only to the requirement that the contact be in violation of the victim’s “sexual integrity”. This court in V. (K.B.) did, however, refer to “sexual privacy”.

[54] Given that sexual assault requires an underlying assault, I see little difference between a violation of sexual privacy and a violation of sexual integrity in this context. That is, any assault that violates a person’s sexual privacy would, it seems, also violate that person’s sexual integrity. Further, the appellant’s trial counsel did not raise any issue with this portion of the charge and on appeal the appellant did not articulate how a jury may have viewed the evidence of the assault as amounting to a violation of sexual privacy but not sexual integrity. Although the more prudent route may be to refer only to sexual integrity, I do not, on the facts of this case, consider the reference to sexual privacy to constitute misdirection.

(c) The trial judge’s instruction on what is necessary to qualify as first degree murder pursuant to s. 231(5)

[55] For constructive first degree murder to be made out under s. 231(5) of the Code, the accused must cause death “while committing” one of the listed predicate offences. The trial judge in his jury instructions repeatedly substituted the term “accompanied by” for “while committing”. In the appellant’s submission “accompanied by” is a broader term. This raises the concern that the jury may have found the appellant guilty of first degree murder even though the two offences – whether sexual assault and murder or unlawful confinement and murder – were not committed in a single transaction.

[56] This error, in the appellant’s view, was compounded when the trial judge told the jury that the events had to be “part of the same transaction or series of events” (emphasis added). The appellant maintains that the proper instruction is that the offences should “constitute one continuous sequence of events making up a single transaction.” “Series of events” is, according to the appellant, not a permissible alternative and undermines the accepted “one transaction” language.

[57] I would not give effect to this submission. Although it would have been preferable had the trial judge used the actual words – “while committing” – of s. 231(5), the charge read as a whole would have conveyed to the jury the requirement that the killing to be closely connected both temporally and causally to the enumerated offences. On the facts of this case, if the jury determined that the underlying offences of unlawful confinement and/or sexual assault occurred, then the offences could not have failed to form part of a continuous sequence of events making up a single transaction with the murder.

[58] All the evidence led in support of the sexual assault pointed to it being closely connected with the murder both temporally and causally. Ms. Wolfe was found naked, except for her underwear which had been partially rolled down, and there was a bloody swipe mark on her upper buttocks. Her bloodied sweatshirt was found next to her. The damage to the sweatshirt indicated that Ms. Wolfe had been stabbed while wearing it. Because it would have been difficult to remove the sweatshirt after the murder, given the partial decapitation, a reasonable inference is that it was removed during the series of events, culminating in her murder.

[59] As to the unlawful confinement, it could not be seriously disputed that this would have occurred during the same transaction as the murder. In fact, the appellant’s position was that the unlawful confinement in this case was so closely connected to the murder that it should be found to be inherent in the act of killing.

[60] Finally, I do not share the appellant’s concern over the trial judge instruction to the jury that the events had to be “part of the same transaction or series of events” (emphasis added). The expression “same transaction or series of events” has been used by this court in Kimberley and by the British Columbia Court of Appeal in Menard. In addition, as I have explained, once the jury concluded that there had been either a sexual assault or an unlawful confinement, the jury would, on the facts of the case, inevitably have concluded that it was committed as part of the same transaction. I cannot see how the trial judge’s instruction would constitute misdirection.

Conclusion

[61] For these reasons, I would dismiss the appeal.

“Paul Rouleau J.A.”

“E.E. Gillese J.A.”

“S.E. Pepall J.A.”

Released: June 30, 2014