COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2015 ONCA 782

DATE: 20151118

DOCKET: C54597

Doherty, Laskin and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dean Dylan Brown

Appellant

Counsel:

Timothy E. Breen and Cate Martell, for the appellant

Benita Wassenaar, for the Respondent

Heard: November 10, 2015

On appeal from the convictions on two counts of first degree murder and one count of attempted murder returned by a jury presided over by Justice R. Byers of the Superior Court of Justice at Picton, Ontario on October 19, 2011.

By the Court:

I

[1] The appellant was convicted of one count of attempted murder (Shannon Hannah) and two counts of first degree murder (Whitney Hannah and Tracy Hannah). He appeals from the convictions on the first degree murder charges and asks this court to substitute convictions for second degree murder.

[2] Counsel for the appellant has ably advanced two grounds of appeal. She submits that the instruction on intoxication as it relates to planning and deliberation was inadequate. She also submits that the trial judge unfairly commented on the evidence of the defence toxicologist and, in doing so, significantly diminished the potential value of his evidence to the defence.

[3] The court called on the Crown on the first but not the second issue. At the end of oral argument, the court advised counsel that the appeal was dismissed with reasons to follow. These are those reasons.

II

[4] The appellant and Shannon Hannah had been boyfriend and girlfriend for a number of years. The relationship ended in the early part of 2010. The appellant, who had initiated the break up, wanted to get back together with Shannon a couple of weeks later. Shannon was not interested.

[5] In the early morning hours of March 11, 2010, the appellant arrived, uninvited, at the Hannah home. Tracy Hannah was at home with her two daughters, Whitney age 14 and Shannon, and a friend of Whitney’s. Mr. Hannah was at work.

[6] The appellant had been drinking for several hours with friends. He had also been texting Shannon throughout the evening. She had made it clear she had no interest in seeing him.

[7] Sometime after the appellant’s arrival, Tracy persuaded the appellant to let her drive him home. Part way to the appellant’s home, he decided to get out of Tracy’s vehicle and walk back to the Hannah home. Tracy drove home arriving there before the appellant. She was in the basement getting ready for work when the appellant arrived back at the Hannah household at around 6:00 a.m.

[8] Shortly after the appellant arrived back at the Hannah household, Tracy awoke her daughter, Shannon. Tracy was clearly very upset and had a cut on her forehead. She told Shannon that the appellant had raped her and asked Shannon to call the police.

[9] Shannon was in the kitchen speaking to the 9-1-1 operator when she saw the appellant coming up the stairs armed with her father’s shotgun. The appellant had retrieved the shotgun from the garage and loaded it with three shells. He had put a fourth shell in his pocket. In his statement to the police, he explained that he had four shells for the four people in the house.

[10] Shannon testified that when the appellant got to the top of the stairs, he opened fire. First, he shot Shannon in the neck seriously wounding her. Next, he shot Whitney in the face, killing her instantly. Finally, the appellant shot Tracy in the back as she turned and headed down the stairs. Tracy died from her injuries. All of the shots were fired from very close range. After the appellant had shot Shannon, Whitney and Tracy, he apologized to Shannon, kissed her, said “sorry I had to do this”, left the house and drove away. He told the police that he decided not to shoot Whitney’s friend because he had already “ripped apart one family.”

[11] The appellant testified and admitted shooting the victims. He denied that he intended to kill anyone, relying on evidence that he was despondent over the breakup with Shannon, had been drinking heavily, had consumed Ecstasy, and was very angry at Tracy who had told him that he could no longer see Shannon. According to the appellant, when Tracy told him that he could no longer have anything to do with Shannon, he lost his temper and attacked Tracy. The attack occurred in the basement bathroom shortly after the appellant walked back to the Hannah house at about 6:00 a.m.

[12] In his testimony the appellant denied sexually assaulting Tracy. He testified that they had consensual sex sometime earlier before they left for his home. He also testified that he and Tracy had been involved in an ongoing sexual relationship for some time. The appellant had not mentioned either the ongoing relationship, or the consensual sexual activity on the day of the homicides, in his statement to the police.

[13] The Crown argued that no consensual sexual relationship existed and that the appellant had brutally sexually assaulted Tracy immediately before retrieving the shotgun from the garage and shooting Shannon, Whitney and Tracy. As well as Tracy’s statement to Shannon, forensic evidence offered significant support for the Crown’s contention.

THE GROUNDS OF APPEAL

(i) The instruction on intoxication as it related to planning and deliberation

[14] It is helpful to begin a consideration of this ground of appeal by setting out the instructions that the trial judge properly provided to the jury. He correctly instructed the jury on the issue of intoxication as it related to the intent required for murder under s. 229(a) of the Criminal Code. He thoroughly and even-handedly reviewed the evidence of intoxication in the course of his instructions on the intent required for murder. The trial judge also gave to the jury the correct definitions of planning and deliberation and told the jury that evidence of intoxication was relevant to whether the Crown had proved planning and deliberation.

[15] Counsel contends that the trial judge failed to make it clear to the jury that even if the evidence of intoxication did not leave the jury with a reasonable doubt on the issue of intention under s. 229(a), the jury must consider whether the same evidence left the jury with a reasonable doubt on either planning or deliberation. Counsel argues that the trial judge should have told the jury that the degree of intoxication needed to leave the jury with a reasonable doubt in respect of planning or deliberation may be less than the degree of intoxication required to leave the jury with a reasonable doubt on the issue of intent under s. 229(a).

[16] The applicable law comes from R. v. Wallen, 1990 CanLII 146 (SCC), [1990] 1 S.C.R. 827. McLachlin J., speaking for the majority, on this point, said at para. 38:

The judge was obliged to instruct the jury on the legal requirements for first degree murder. He was required to explain to the jury what is required for a finding that the murder was planned and deliberate. He was obliged to tell them that in determining whether those requirements were met they should consider the accused’s intoxication, and that this consideration is separate and distinct from consideration of his intoxication with respect to the capacity to form the intent to murder. Those are the essential legal instructions. The degree of drunkenness required to negative capacity to formulate and carry out a plan is a question of fact for the jury. In deciding this question the jury will take into account the complexity of the plan and the degree of intoxication demonstrated by the evidence. It is evident to anyone who directs his mind to the matter that the degree of intoxication required to negative capacity to plan and execute a murder may be less than the degree required to negative intent to kill. While it might be useful to tell the jury this expressly, failure to do so is insufficient to vitiate the charge, the matter being one of fact rather than law and one with which the jury is quite capable of dealing provided it has been properly instructed on the legal elements I have mentioned as well the facts.

[17] The instructions provided by the trial judge contain all of the “essential legal instructions” described by McLachlin J. in the above quoted passage. The trial judge chose not to make a comparison between the degree of intoxication required to leave the jury with a reasonable doubt on planning or deliberation and the degree of intoxication required to leave a reasonable doubt on the issue of intent. As McLachlin J. states, the failure to make this comparison for the jury does not “vitiate” the charge. A jury is capable, having been given the proper definitions of planning and deliberation and heard the evidence of the nature of the planning alleged and the evidence of intoxication, of determining the effect, if any, of intoxication on the Crown’s claim that the appellant planned and deliberated upon the commission of the murder.

[18] As the passage quoted from Wallen makes clear, the essential message to the jury is that intoxication applies separately to the issue of intent and the issue of planning and deliberation. The jury must consider the evidence of intoxication in respect of those issues separately. A jury’s finding that the accused had the intent required for murder despite the evidence of intoxication, is not determinative of whether the same evidence leads to a reasonable doubt on the issues of planning and deliberation.

[19] The language used by the trial judge and the manner in which the trial judge structured his instructions, clearly conveyed to the jury that it must consider the impact of intoxication on planning and deliberation even though the jury was satisfied that intoxication did not affect the formation of the intent required for murder. The potential impact of the evidence of intoxication on planning and deliberation would be equally clear to the jury in light of the concise, straightforward definitions of planning and deliberation given to them by the trial judge.

(ii) The trial judge’s comments on the evidence of the defence toxicologist

[20] Counsel submits that the trial judge made two comments on the evidence of the defence toxicologist which amounted to an unwarranted intrusion on the jury’s fact-finding responsibilities and unfairly undermined the case for the defence.

[21] We see no need to set out the specific passages referred to by counsel. Both comments made by the trial judge were supported by the evidence and neither unfairly diminished the evidence of the toxicologist, or undermined the position advanced by the defence.

[22] In rejecting this ground of appeal we make two additional observations. First, the charge as a whole was balanced and even-handed. On any objective view this charge cannot be read as an attempt by the trial judge to point the jury in any particular direction. Second, trial counsel made no objection to either comment made by the trial judge. If the comments by the trial judge had the disastrous effect on the defence now argued by counsel, surely experienced trial counsel would have said something.

III

[23] The appeal is dismissed. We do not reach the application of the curative proviso as we find no error in law. We do however acknowledge the force of Crown counsel’s submission that the Crown’s case on the first degree murder charges was so overwhelming as to render harmless any error in the instruction on intoxication as it related to planning and deliberation.

Released: “DD” “NOV 18 2015”

“Doherty J.A.”

“John Laskin J.A.”

“M. Tulloch J.A.”