COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewis, 2014 ONCA 95

DATE: 20140204

DOCKET: C54606

Sharpe, Watt and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Melissa Lewis

Respondent

Alex Alvaro and Katie Doherty, for the appellant

Ian R. Smith and Amy J. Ohler, for the respondent

Heard: January 29, 2014

On appeal from the acquittal entered by Justice Robert A. Clark of the Superior Court of Justice, sitting with a jury, dated October 21, 2011.

By the Court:

[1] The Crown appeals the respondent’s acquittal by a jury on a charge of second degree murder. At trial the respondent admitted that she had caused the deceased’s death by stabbing him while he was driving his car. The principal defence was self-defence. Provocation was advanced as an alternative defence. The Crown contends that the trial judge erred by including in his instruction a reference to reflexive actions and that a new trial should be ordered.

Facts

[2] The deceased and the respondent had a long and tumultuous relationship. They had one child. There was evidence that the deceased led a dangerous lifestyle and evidence of the lengthy history of his abusive and violent conduct towards the respondent.

[3] On the day of his death, the deceased was driving the respondent, her father and their child. The respondent was in the back seat directly behind the deceased, their child was next to her and her father was in the front passenger seat. The respondent testified that when she leaned forward to speak into the deceased’s ear, he swung his arm back in an attempt to strike her. He slowed the vehicle down and pulled to the curb and, according to the respondent, she thought he was looking for something in the area between the two front seats. The respondent testified that she knew that the deceased owned a gun that he sometimes kept in the car and that she thought he was reaching for the gun. Fearing for her safety and that of her child and father, she reached under the driver’s seat to retrieve a knife and stabbed the deceased.

[4] Dr. Pallandi, a forensic psychiatrist, assessed the respondent in two interviews. He testified as to what the respondent told him about her history with the deceased, the abuse she suffered at his hands, her depression and the events up to and including the stabbing. During the course of his evidence, he said this about the act of stabbing:

[Ms. Lewis] responded and reacted, both protectively and in a fashion that I described in previous testimony, “reflexively”, in response to being functionally and emotionally provoked by the victim, and it was in the course of this reflexive action that she took the weapon [and] stabbed the victim.

[5] He explained that “reflexively” meant “it’s not governed by your thinking processes as much” and that it did not involve “the higher orders” of the brain. There was, however, no suggestion in his testimony that the respondent did not act voluntarily in the act of the stabbing.

[6] The respondent relied on self-defence and the partial defence of provocation.

The trial judge’s instruction to the jury

[7] When instructing the jury as to elements of assault as the unlawful act component of the charge of second degree murder, the trial judge referred to Dr. Pallandi’s evidence and added a dictionary definition of “reflex” as “an action that is independent of the will, excited as involuntary response to nerve stimulation” and an added as examples instances where an individual makes a sudden body movement unaccompanied by conscious will or thought. After referring to the evidence as to the relationship between the respondent and the deceased he stated as follows:

The criminal law punishes people only for their conscious, voluntary acts. If a person has no voluntary control over what she is doing, then the criminal law does not hold that person accountable for that conduct. Therefore, if you are not satisfied beyond a reasonable doubt that, as distinct from whether she intended to cause bodily harm or death by stabbing, that the act of stabbing itself was intentional, that is to say, that it was done purposively or voluntarily, or you are left with a reasonable doubt on this issue, then you must find Ms. Lewis not guilty and your deliberations would be over.

If you are satisfied that, when she stabbed [the deceased], Ms. Lewis intended to apply force to [him], then, because consent is legally irrelevant, the unlawful act of assault will have been made out. In that case, you must proceed to consider the next essential element.

[8] Counsel had reviewed and approved a draft of the charge. The trial Crown did not object to this aspect of the charge before or after it was given.

Jury questions and verdict

[9] During their deliberations, the jury asked two questions. The first sought clarification on the “state of mind” with respect to assault and murder. No issue is taken with the judge’s response. The second asked for clarification about the definition of assault. Again, no issue is taken with respect to the judge’s response.

[10] Within an hour and 20 minutes from the response to the second question the jury returned with a verdict acquitting the respondent.

Issues

[11] The sole ground of appeal raised by the Crown is that the trial judge erred by leaving the jury with the impression that they should acquit the respondent if they found that the fatal blow she struck was not voluntary but rather the product of a reflex. If the trial judge erred, the second issue is whether the Crown has satisfied the burden of demonstrating that the jury verdict should be set aside and a new trial ordered.

Analysis

1. Did the trial judge err in his instruction as to “reflex” and voluntariness?

[12] The Crown submits that the reference to reflex and voluntariness could have led the jury to conclude that it was open to acquit the respondent on the ground that her actions were not voluntary. The Crown argues that the jury’s questions shortly before the verdict indicate that jurors were confused by this erroneous instruction and that it could well have had an impact on the verdict.

[13] It is common ground that the only reference during the trial to “reflex” was the evidence of Dr. Pallandi.

[14] As we have noted, the trial Crown made no objection to this aspect of the charge.

[15] Before us, the Crown submits that the trial judge erred in law by leaving the defence of “reflex” with the jury because that defence had no air of reality. The Crown further submits that the trial judge erred in law by importing the notion of “reflex” into the mens rea for assault.

[16] We agree with the submission that there was no basis in the evidence to support a defence of “reflex” or lack of voluntariness. The respondent’s evidence was entirely to the contrary. She admitted at the outset of trial that she had caused the deceased’s death. She testified that she feared for her own life and for that of her child and father and that it was for that reason that she stabbed the deceased. The evidence of the expert did not relate to an involuntary reflex but rather to a sudden and impulsive action prompted by some external threat or insult.

[17] It may well be that, as submitted by the respondent, the trial judge intended to explain the distinction between the expert’s use of the term “reflex” and the legal requirement of voluntariness. However, we agree with the Crown that the passage set out in these reasons at paragraph 7 could be taken to suggest that the issue of voluntariness was a live one at the trial. We also agree that involuntary reflex relates to the actus reus rather than mens rea, and that the impugned passage in the jury instruction incorrectly suggests the contrary.

[18] We conclude, accordingly, that the jury instruction was defective.

2. Has the Crown demonstrated that to a reasonable degree of certainty the alleged error could have affected the verdict?

[19] To succeed on this appeal, the Crown must satisfy the test set out in R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14:

It has been long established, however, that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of the Crown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different.

[20] In our view, the Crown has failed to meet that heavy burden.

[21] We agree with the respondent that the circumstances of this case closely parallel those of Graveline, where the Supreme Court found that the Crown had failed to demonstrate that there was a reasonable degree of certainty that the outcome may well have been affected by an error in the jury charge. In both cases:

• the trial judge introduced a defence on his own initiative;

• there was little or no evidentiary foundation for the alternative defence put by the trial judge;

• the alternative defence was to some degree inconsistent with the defence relied on by the accused; and

• there was no suggestion that the errors imputed to the trial judge “had any bearing, direct or indirect, on the legality of an acquittal based on the defence advanced by the accused” (Graveline, at para. 17).

[22] As the Crown concedes, the respondent testified that her act of stabbing deceased was anything but involuntary. She acted out of fear for her own safety and that of her child and father. There was no evidence to suggest that her actions were reflexive in the sense of being involuntary. As we have noted, the only reference to “reflex” in the evidence was that of the expert and he did not suggest that the stabbing was an involuntary act.

[23] The trial was focussed on self-defence and to a lesser extent provocation. Given the evidence that was led, the arguments that were made by counsel, and the overwhelming thrust of the jury charge as a whole, we cannot see how it can reasonably be suggested that the jury could have been left with the impression that it was open to them to acquit the respondent on the ground that she had acted involuntarily.

[24] We do not agree that the two questions posed by the jury late in their deliberations indicate any confusion as to the issue of voluntariness. The first question asked whether the jury would be precluded from considering provocation if any two of the three essential elements of second degree murder were met. The second question related to the instructions on the elements of assault.

[25] Neither question referred either specifically or inferentially to the element of voluntariness or reflex. The jury did not ask anything about Dr. Pallandi’s evidence. In our view it would be sheer speculation to read into these questions any inference that the jury was considering the acquitting respondent on the basis that her act was involuntary.

[26] In our view it is significant that the trial Crown did not object to this aspect of the jury instruction. The trial judge provided counsel with a draft charge well before instructing the jury. The absence of any objection demonstrates that the two experienced trial Crowns, who were immersed in the details of the evidence and the arguments, simply did not see any risk that the impugned passage could have led the jury astray.

Disposition

[27] For these reasons, the appeal is dismissed.

“Robert J. Sharpe J.A.”

“David Watt J.A.”

“M.L. Benotto J.A.”

Released: February 3, 2014