COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2015 ONCA 831

DATE: 20151202

DOCKET: C57351

Hoy A.C.J.O., Laskin and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Smith

Appellant

Catriona Verner, for the appellant

Howard Leibovich, for the respondent

Heard: October 27, 2015

On appeal from the conviction entered by Justice Robert B. Reid of the Superior Court of Justice, sitting with a jury, on February 26, 2013.

Pardu J.A.:

[1] The appellant admits that he chocked the victim, dragged her into the basement of a store, and then strangled, punched, and kicked her. The victim died two days later, as a result of the injuries inflicted by the appellant.

[2] At trial, the Crown alleged that the appellant was guilty of first degree murder. The appellant pled guilty to the offence of manslaughter, but denied that he had the necessary mens rea for murder. The only substantial issues at trial were whether he had the mental state for murder and whether it was first degree murder.

[3] The appellant advances three grounds on appeal:

(1) The trial judge erred by leaving unlawful confinement to the jury as a basis for first degree murder.

(2) The trial judge erroneously gave the jury the impression that the appellant conceded that he had the intent required for murder.

(3) The trial judge did not appropriately relate relevant evidence to the mens rea issue in his charge.

A. Factual background

[4] The following facts were not in dispute at the trial.

[5] On May 25, 2010, the appellant was suffering from his heavy consumption of alcohol and cocaine the night before. His landlord was threatening to evict him if he did not pay the rent and he was experiencing symptoms of cocaine withdrawal. Consequently, the appellant was feeling paranoid and desperate for money.

[6] The appellant decided to rob a store. He started looking for a store without any security cameras. Over a period of about an hour, he visited 20-30 stores. He decided to rob the store where the victim was working as a shop attendant.

[7] According to the appellant, his plan was to ask the victim to get an item from the back of the store and, while she was at the back, to open the cash register and run out with the money. The victim became suspicious of the appellant and started screaming when he approached her. The appellant put the victim in what he described as a “sleeper hold”, grabbing her neck and choking her, to try to render her unconscious.

[8] The appellant’s plan did not work, and the complainant continued screaming. The appellant then began dragging the victim down the stairs into the shop’s basement. Halfway down, she stumbled and fell, landing on the basement floor. The accused went after her to the basement. The victim tried to get up, but the appellant prevented her from doing so. The appellant started strangling the victim with the headscarf she had been wearing. The victim continued making some noise, and so the appellant punched her and kicked her in the head four or five times. The appellant shattered her upper and lower jaw bones, broke her nasal bone, and partially tore off an ear.

[9] The appellant stopped attacking the victim and left once she stopped making any noise. The victim died two days later, of strangulation and blunt facial trauma.

B. analysis

(1) Unlawful confinement

[10] Section 231(5)(e) of the Criminal Code, R.S.C. 1985, c. C-46, provides that murder is first degree murder when death is caused while committing or attempting forcible confinement.

[11] Forcible confinement occurs where, for any significant length of time, the victim is coercively restrained 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. 25. In order to establish a charge of first degree murder on the basis that the accused committed murder while committing or attempting forcible confinement, the act of killing and the act of confinement must be part of a single transaction, but must amount to distinct acts, such that the act of killing and the confinement are not the same: R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at paras. 50-53. The acts of confinement must go beyond the acts causing death.

[12] The appellant submits that, in this case, unlawful confinement and first degree murder should never have been left to the jury, and that the conviction for first degree murder is therefore unreasonable. The appellant submits that applying pressure to the victim’s neck with the sleeper hold in the store and strangling, punching and kicking her in the basement were all one event amounting to the killing. Therefore, the appellant submits, there was no unlawful confinement over and above the acts that resulted in the victim’s death.

[13] I disagree. It was open to the jury to conclude that putting the victim in the sleeper hold in the store and dragging her down the stairs amounted to unlawful confinement, which was both part of the same course of conduct leading to the victim’s death, and also distinct from the strangulation, punching and kicking which occurred in the basement. The restraint in the store was, according to the appellant’s own evidence, undertaken to stop the victim from screaming, and presumably to enable him to commit the robbery. After the victim landed on the basement floor, the appellant continued after her. His ensuing conduct in strangling her with her scarf and punching and kicking her could reasonably be viewed by a jury as acts distinct from putting her in, and maintaining her in, a sleeper hold and dragging her part way down the basement stairs.

[14] Moreover, the present case is very similar to Parris. There, the victim was forcibly removed to a basement before being killed. At para. 57, Watt J.A. upheld a conviction for first degree murder on the basis that:

The charge made it clear that the unlawful confinement and killing must be separate acts, as well as essential components of a single ongoing transaction. The "distinct act" requirement demands only that the confinement be distinct and independent from the act of killing. That was so here. The unlawful confinement was not inherent in the very act of killing, but rather preceded it as Malcolm was removed from the main floor to the basement where he was eventually killed. [Citation omitted.]

(2) Trial judge’s instructions in respect of intent

[15] The appellant also submits that the trial judge erred in relating the evidence to the mens rea requirement for murder. Specifically, the appellant argues that the trial judge’s instructions implied that the appellant had admitted having the requisite mens rea.

[16] Section 229(a) of the Criminal Code provides that culpable homicide is murder:

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not.

[17] The trial judge essentially took the first definition of intent, “means to cause death”, away from the jury, likely because of the appellant’s testimony that he did not intend to cause the victim’s death. He instructed the jury to focus on the second branch identified above. This was favourable to the accused, as it would have been open to the jury to infer from his acts that the appellant had the requisite intent to kill despite his denials.

[18] However, the appellant takes issue with the following passage from the trial judge’s charge to the jury:

Set against the intoxication evidence as to the mental element required for murder was the information elicited by the Crown on cross-examination of [the appellant] to the effect that he had various opportunities to leave the scene prior to the murder, for example: when the sleeper hold did not work; and the victim stumbled and fell to the bottom of the stairs Crown counsel suggested to [the appellant] that he knew that tying the headscarf around her neck could kill [the victim], as could the punching and kicking to the head and yet [the appellant] chose to continue. As well, [the appellant] acknowledged that he stopped the assault immediately upon the victim becoming quiet, which the Crown suggested showed that [the appellant] was fully in control of his actions. [Emphasis added.]

[19] The highlighted portion of this passage in the charge was based on answers given by the appellant in cross-examination, when asked about his knowledge of the effects of a sleeper hold and the act of choking someone with a scarf:

Q. …You knew it could put someone unconscious, right?

A. Correct.

Q. You know if you keep someone unconscious long enough they’re going to die, right?

A. I know that.

Q. Sorry?

A. I know that, yes.

Q. You know that, right? And you knew that then, right?

A. Correct.

Q. And you know tying a scarf around someone neck, someone’s neck and pulling it tight will also cut off their airways right?

A. Correct.

Q. And if you do that long enough they will die as well, right?

A. Correct.

Q. And you’re well aware of that, right?

A. Yes I am.

[20] In my opinion, the trial judge’s instructions correctly summarized the exchange between Crown counsel and the appellant. Furthermore, it would have been abundantly clear to the jury from the instructions given to them that the appellant did not concede that he had the intent required for the murder.

[21] The trial judge instructed the jury:

Of course if you believe the testimony of [the appellant] that he did not have the state of mind necessary to commit the offence of murder as charged, and subject to my further instructions to you about the law, you must find him not guilty of that charge. However, even if you do not believe the testimony of [the appellant], if it leaves you with a reasonable doubt about an essential element of the offence charged, you must find him not guilty of that offence. Even if the testimony of [the appellant] does not raise a reasonable doubt about an essential element of the offence charged, if after considering all the evidence you are not satisfied beyond a reasonable doubt of his guilt, you must acquit.

Based on the testimony of [the appellant] in court and the video of his interview by Detective Rodzoniak, [the appellant] denied having an intention to kill. The question of intent to kill is your decision to make on all the evidence. However, I suspect that you will concentrate your deliberations on the second option, namely whether the Crown has proved beyond a reasonable doubt that [the appellant] meant to cause [the victim] bodily harm that he knew was likely to cause her death and was reckless whether death ensued or not.

You may take into account, as a matter of common sense, that a person usually knows what the predictable consequences of his or her actions are and means to bring them about. However, you are not required to draw that inference about [the appellant]. Indeed, you must not do so if, on the whole of the evidence, including the evidence of the presence of alcohol, cocaine, and/or steroids in [the appellant’s] body, you have a reasonable doubt about whether [the appellant] had the intent required for murder.

Crown Counsel must prove beyond a reasonable doubt that [the appellant] had that intent. To decide whether he did, you should take into account the evidence about his consumption of alcohol and drugs, along with the rest of the evidence, including the evidence of steroid use, that throws light on his state of mind at the time the offence was allegedly committed.

To determine [the appellant’s] state of mind, what he meant to do, you should consider all the evidence.

The evidence of [the appellant] is that he drank a substantial amount of alcohol over the preceding night… There is no evidence that the accused eliminates alcohol at an exceptional rate. It is a fair assumption, therefore, that [the appellant] was substantially intoxicated at the time of the offence. He also gave evidence that he had consumed about three-and-a-half grams of cocaine during the night, that he was an experienced consumer of cocaine and that it appeared to be of satisfactory potency. Although he admitted in his initial statement that he was coming down, that itself is a condition that has emotional and psychological impact.

This evidence is assisted by the expert opinion of Dr. Gojer, a forensic psychiatrist, who testified that withdrawal from cocaine often involves symptoms of paranoia, panic, feeling sketched and impulsivity; all emotions that [the appellant] said he experienced at this time.

It is the position of the defence that when [the appellant] assaulted the victim, he did so while under the influence of alcohol and other chemical substances, so that he responded with an irrational degree of violence to her screaming, that he never intended the death of the victim and that he did not foresee that what he did to her might cause her death.

(3) Relation of evidence to the issue

[22] The appellant also argues that the trial judge did not sufficiently relate the evidence presented at trial to the issue of whether the appellant had the requisite mens rea. I would reject this submission as well.

[23] The defence’s position at trial was that the effects of the drugs and alcohol consumed by the appellant and his state of panic raised a doubt as to whether the appellant had the intent required for murder. In my opinion, the trial judge presented a sufficient overview of the relevant evidence.

[24] As noted by Bastarache J. in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 57, “[so] long as the evidence is put to the jury in a manner that will allow it to fully appreciate the issues and the defence presented, the charge will be adequate”. In this case, trial judge reviewed the relevant expert evidence led on behalf of the appellant and accurately summarized the defence’s position at trial.

[25] In assessing the sufficiency of the trial judge’s overview of the evidence, it should be noted that, this trial lasted only eight days. The evidence would have been relatively fresh in the jury’s mind. Moreover, defence counsel had multiple opportunities to review drafts of the charge and made no objection to this part of the charge. While not conclusive, this lends force to the Crown’s submission that the jury was not misled in respect of the issues at stake: R. v. Bouchard, 2013 ONCA 791, 305 C.C.C. (3d) 240, at paras. 38-39.

C. disposition

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

Released: (J.L.) December 2, 2015

“G. Pardu J.A.”

“I agree Alexandra Hoy A.C.J.O.”

“I agree John Laskin J.A.”