WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.
(2.1) The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Barrett, 2016 ONCA 12
DATE: 20160108
DOCKET: C57599
Watt, Hourigan and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Patrick Barrett
Appellant
Richard Litkowski, for the appellant
Karen Papadopoulos, for the respondent
Heard: October 21, 2015
On appeal from the conviction entered on October 11, 2012 and the sentence imposed on December 18, 2012 by Justice Nola E. Garton of the Superior Court of Justice, sitting with a jury.
Hourigan J.A.:
A. Overview
[1] On May 31, 2010, Lucita Charles was beaten to death by her common law husband, the appellant. Following the homicide, the appellant covered Ms. Charles with a blanket, tore two pages from his Bible, and pinned them to her chest with a knife.
[2] The appellant then proceeded to withdraw funds from Ms. Charles’s bank account, which he used to fund a road trip with a co-worker with whom he was having an affair. The two stopped to visit the co-worker’s parents, and after they left, the co-worker’s father called the police when his wife saw a report on the homicide along with the appellant’s picture. The police eventually tracked down the appellant in Oshawa, where he was arrested.
[3] While in custody, the appellant made two statements to the police wherein he admitted to beating Ms. Charles to death with a hammer as she slept in their bedroom. He told the police that he “lost it” when Ms. Charles insisted that if she was pregnant she would have an abortion. He told the police that he did not mean to kill her.
[4] At the outset of trial, the appellant pleaded guilty to manslaughter, but the Crown rejected his plea. The appellant advanced the defence of provocation, arguing that Ms. Charles’s firm resolve to have an abortion caused him, a devoutly religious man, to lose control. The trial judge held that there was no air of reality to the defence and refused to put it to the jury.
[5] The appellant was convicted of second degree murder. The trial judge ruled that he will not be eligible for parole for 15 years.
[6] On appeal, the appellant submits that the trial judge erred in failing to give the jury an instruction in accordance with R. v. W. (D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, with respect to the exculpatory portions of his statements to police. He also submits that the trial judge erred in declining to instruct the jury on provocation. In addition, the appellant seeks leave to appeal sentence, arguing that his period of parole ineligibility should be reduced to 12 years. During the course of oral submissions the appellant abandoned his argument relating to the admissibility of his medical records.
[7] For the reasons that follow, I would dismiss the conviction appeal. I would grant leave to appeal sentence, but I would dismiss the sentence appeal.
B. Analysis
(i) W. (D.) Instruction
[8] The only issue for the jury was whether the Crown had proved beyond a reasonable doubt that the appellant possessed the necessary intent to be convicted of second-degree murder, rather than manslaughter.
[9] The appellant did not testify at trial. He relied however, as did the Crown, upon two statements he had given to police. In the second, he described in step-by-step detail the interaction between Ms. Charles and himself the night of the killing and how he killed her. He claimed that he did not mean to do it, but “lost it” out of a combination of rage, depression and religious fervour, when faced with her intention to have an abortion if she were indeed pregnant. His lack of intention, as expressed in his statements to police, was a major focus of his defence at trial, supported by his medical records of previous depressive episodes when experiencing relationship difficulties. In addition, the appellant relied upon testimony from his father, his pastor and other witnesses called by the Crown as to his normally gentle and caring disposition, his ardent belief that his care of Ms. Charles’s disabled son would be rewarded by God providing him with a daughter, and his religious preoccupation.
[10] It is the appellant’s position, relying primarily on this court’s decision in R. v. Bucik, 2011 ONCA 546, 274 C.C.C. (3d) 421, that the trial judge’s failure to provide the jury with a W. (D.) instruction, on how to consider the exculpatory portions of his statements to police as a source of reasonable doubt even if not affirmatively believed, constitutes reversible error.
[11] The Crown concedes that an explicit W. (D.) warning would have been preferable, but submits that the omission of such an instruction does not constitute reversible error in the factual context of this case, where the only issue was whether the accused had the requisite intent for second-degree murder, particularly since the charge properly conveyed the burden and standard of proof and their application to the jury.
[12] During the pre-charge conference, there was some discussion between defence counsel and the trial judge as to whether a W. (D.) instruction might apply, and defence counsel agreed with the trial judge that the standard W. (D.) instruction did not really fit in the circumstances of this case. Defence counsel submitted that it would be appropriate to link the appellant’s various statements to the presumption of innocence and burden of proof and to make clear that, if there was any doubt about his intent at the time, the jury should acquit. The Crown’s position was that a W. (D.) instruction was not required since the appellant did not testify.
[13] In considering the appellant’s argument about the W. (D.) instruction, it is important to have regard to the case law regarding the principles of appellate review of jury instructions. The focus of appellate review of jury charges is whether, after a functional and contextual review of the charge and of the trial as a whole, the jury instructions adequately prepared the jury for deliberations: R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 39. Perfection is not the test. Nor is there any requirement to exactly track the W. (D.) language: R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 103. The key question is whether the jury was equipped with an understanding of the appropriate burden and standard of proof: see R. v. King, 2013 ONCA 417, 309 O.A.C. 39, at para. 16; see also R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13; R. v. Cyr, 2012 ONCA 919, 294 C.C.C. (3d) 421, at para. 49.
[14] As noted, the appellant relies on Bucik in support of its position that a W. (D.) instruction was required. However, in Bucikthis court did not hold that a W. (D.) instruction was mandatory in relation to all exculpatory statements or that its absence necessarily constitutes reversible error. As subsequent decisions of this court have made clear, an explicit W. (D.) instruction is not necessarily required where there is potentially exculpatory evidence, as long as the charge as a whole makes the burden of proof in relation to reasonable doubt and issues of credibility clear to the jury, such that it is not, as described in Bucik, simply an “either/or” contest: see e.g. King, at paras. 16-19; R. v. Tuck, 2014 ONCA 918, 123 O.R. (3d) 321, at paras. 51-56; R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, at paras. 98-102; R. v. Moffit, 2015 ONCA 412, 326 C.C.C. (3d) 66, at paras. 63-68.
[15] In addition, in Bucik the court was dealing with a very specific factual circumstance in which there were two aspects of exculpatory evidence: (i) an accused’s statement to the police that he was present but did not participate in a fatal attack, and (ii) various eyewitness inconsistencies in his identification which, in combination with the lack of clear evidence of the number of people in the vicinity at the time of the fatal attack, could give rise to reasonable doubt. It was particularly in the context of the inconsistent identification evidence that reversible error was found in a jury instruction that simply told the jury to consider anything the accused said, along with all of the other evidence, in deciding whether they had a reasonable doubt.
[16] In this case, the trial judge provided the jury with a comprehensive and correct instruction on the definition of proof beyond a reasonable doubt, which included a specific reference to intent:
The requirement of proof beyond a reasonable doubt applies to each and every element of the offence with which Mr. Barrett is charged. As I indicated to you in my opening remarks at the outset of this trial, and as counsel have also indicated to you in their addresses, identity and cause of death are not at issue in this case. The essential element that is in issue is the intent or state of mind: Has the Crown established beyond a reasonable doubt that Mr. Barrett had the requisite intent or state of mind for second-degree murder?
[17] In the section of the charge addressing the appellant’s statements to police, the trial judge stated:
You may accept all, part or none of what Mr. Barrett told the police. You may give anything Mr. Barrett said as much or as little importance as you think it deserves in deciding this case. It is for you to say. Anything that Mr. Barrett said, however, is only part of the evidence in this case. You should consider it along with and in the same way as all the other evidence.
Some or all of the statements made by Mr. Barrett during the interviews may help in Mr. Barrett’s defence. You must consider those remarks that may help Mr. Barrett, along with all the other evidence. You must consider all the remarks that might help Mr. Barrett.
If you decide that Mr. Barrett made a remark or remarks that may help him in his defence, you will consider that statement, along with the rest of his evidence, including the evidence called by the defence, in deciding whether you have a reasonable doubt that Mr. Barrett had the requisite intent or state of mind for murder.
I would remind you again that the burden of proving that Mr. Barrett had the requisite intent for murder beyond a reasonable doubt rests on the Crown. That onus of proof never shifts to Mr. Barrett. There is no burden on Mr. Barrett to prove anything. [Emphasis added.]
[18] When addressing the indictment, and the state of mind necessary for second degree murder, the trial judge stated:
You must consider all of the evidence, the sum total of it, along with any other evidence that seems or tends to show Mr. Barrett’s state of mind when you are deciding whether Crown counsel has proven beyond a reasonable doubt that Mr. Barrett’s unlawful killing of Lucita was murder.
In determining this issue, you should consider all of the evidence. That would, of course, include what Mr. Barrett told the police during his two interviews. [Emphasis added.]
[19] The trial judge’s section of the charge setting out the position of the defence commenced by stating:
In his address to you, Mr. Bawden pointed out that Patrick Barrett made a statement to police against the advice of his counsel. In that statement, Mr. Barrett honestly confessed to having killed Lucita Charles. He also told the investigators, “You have to believe me, I didn’t mean it.” Mr. Bawden pointed out that Mr. Barrett’s statement is admissible both for the Crown and the defence. Mr. Bawden submits that when Mr. Barrett said, “I didn’t mean it”, he was truthfully trying to convey the fact that he never intended to kill Lucita. That is his defence at this trial.
[20] In contrast to Bucik, in this case, the instruction to the jury put the entirety of the exculpatory defence evidence—the appellant’s denial of intent—to the jury as something that they had to consider, and specifically tied it to the key issue. This was stronger language than used in Bucik. The jury in the present case was told they “must consider” all of the remarks that might help the appellant, along with all of the other evidence, in deciding whether they had a reasonable doubt that he had the requisite intent or state of mind for murder. Since the appellant’s intent was the sole issue at trial, it is inconceivable that the jury would not have appreciated that his statements that he did not mean to do it, even if not accepted in their entirety as true, were to be considered in determining whether they had a reasonable doubt on the whole of the evidence.
[21] Additionally, as in King, the charge to the jury was replete with passages instructing the jury that the Crown bore the burden of proof beyond a reasonable doubt, that the burden never changed, and that the jury had to consider all of the evidence in deciding whether the Crown met the burden of proof beyond a reasonable doubt.
[22] In my view, a consideration of the jury charge as a whole demonstrates that the jury was properly instructed on the interplay between the exculpatory aspects of the appellant’s statements and the reasonable doubt analysis. I would, therefore, reject this ground of appeal.
(ii) Provocation
[23] The trial judge reviewed the elements of the partial defence of provocation as enumerated in R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350. She concluded that there was evidence on which the jury could find that Ms. Charles’s statement constituted an insult from the perspective of the appellant. In considering the objective element, the trial judge held that there was no air of reality because there was no evidence on which a jury might conclude or have a reasonable doubt that an ordinary person would be deprived of self-control by the words. With respect to the subjective element, the trial judge concluded, without reasons, that this element of the test had been met. Finally, considering the element of suddenness, she concluded neither the insult nor the reaction were sudden, as both are required to be. Based on this analysis she held that there was no air of reality to the defence and declined to put it to the jury.
[24] On appeal, the appellant submits that the trial judge erred in her analysis of the suddenness element. He argues that this case is not the classic situation of a grievous insult that provokes an instantaneous homicidal rage, but that few cases in the domestic context fall in this paradigm. According to the appellant, the trial judge erred in finding that there was no evidence that the appellant was taken by surprise by Ms. Charles’s final, unequivocal declaration of her intent to have an abortion. The appellant argues that the trial judge erred by focusing on the length of the discussion and argument, rather than on the forcefulness of Ms. Charles’s final statement.
[25] I would not accede to this argument. I agree with the finding of the trial judge that nothing had changed in what Ms. Charles had communicated to the appellant in the days and hours leading up to her death. She consistently told him that she would not have a child. Moreover, nothing in the appellant’s actions leading up to the attack is consistent with a sudden reaction. On the appellant’s own evidence, just before the attack, he left the bedroom and sat thinking while “he felt the rage starting to build”, then went out to the balcony and had a cigarette, then returned to the living room and flipped through his Bible, then returned to the bedroom and lay down with Ms. Charles, all before he attacked her. In these circumstances, it cannot reasonably be inferred that any insult or the appellant’s reaction to such insult was sudden. Therefore, I see no error in the trial judge’s analysis of this issue.
[26] The appellant also submits that the trial judge did not properly take into account contextual factors in assessing the ordinary person test. At trial the Crown submitted that the factors to be considered should be limited to the appellant’s age, gender, the fact that he was in a common law relationship with a woman for two years, and that he developed affection for her son. The defence submitted that the factors should be expanded to include that he was a devout Christian, that his common-law spouse had two previous abortions, that he entreated her not to have a third abortion, the history of their relationship, and that the appellant was “heavily invested” in his common law spouse’s son.
[27] In my view, the contextual factors proposed by the appellant are so specific to the appellant that they turn this element of the test into a purely subjective one. In any event, the trial judge stated in her reasons that she took the factors proposed by the defence into account when assessing the ordinary person test and, that even with these factors included, there was no suggestion that an ordinary person would have been deprived of self-control. I see no basis to interfere with that conclusion.
[28] In my view, the trial judge’s only error was in finding that Ms. Charles’s assertion that “If I am pregnant, I am having an abortion” could constitute an insult for the purposes of the defence of provocation. The trial judge erred in stating that the issue was whether the appellant perceived Ms. Charles’s assertion as an insult, when the test is whether an ordinary person would perceive it as an insult: Tran, at para. 25.
[29] In addition, nothing that Ms. Charles did met the legal definition of an insult. In Tran, at para. 44, the Supreme Court quoted the dictionary definition of “insult”:
The general meaning of the noun “insult” as defined in the Shorter Oxford English Dictionary on Historical Principles (6th ed. 2007), vol. 1, at p. 1400, is “[a]n act or the action of attacking; (an) attack, (an) assault.” Likewise, the action of insulting means to “[s]how arrogance or scorn; boast, exult, esp. insolently or contemptuously. . . . Treat with scornful abuse; subject to indignity; . . . offend the modesty or self-respect of.”
[30] I agree with the Crown’s position that Ms. Charles’s words simply cannot be perceived as an insult—they are an assertion of her intentions with respect to the pregnancy—and in the context of the series of events, it cannot be perceived that they were used in an insulting or offensive way. To the contrary, the manner in which she expressed herself to the appellant during the course of the argument that culminated in her death was the antithesis of insulting or provoking; indeed, she was trying to calm him down so that he would leave her alone.
[31] While the trial judge erred in this regard, nothing turns on it as the error enured to the benefit of the appellant.
(iii) Parole Ineligibility
[32] The appellant submits that the appropriate period of parole ineligibility ought to have been fixed at 12 years. In my view, there is no merit to this submission.
[33] The appellant alleges no error in principle.
[34] He concedes that the appropriate range of parole ineligibility for “this type of case” is 12 to 15 years. As this court stated in R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449, at para. 179, “it is hard, absent some error in principle or misapprehension of material evidence, to justify appellate intervention to adjust a mandatory period of parole ineligibility downward by two or three years.”
[35] In my view, appellate intervention is not justified in this case. This was a vicious killing of a defenceless victim, which was followed by the desecration of her body. The victim’s severely disabled son lost his mother, who was his primary caregiver. The parole ineligibility period imposed was entirely reasonable given these and the other aggravating factors identified by the trial judge.
C. Disposition
[36] I would dismiss the appeal from conviction. I would grant leave to appeal sentence, but I would dismiss the sentence appeal.
Released: January 8, 2016 “DW”
“C.W. Hourigan J.A.”
“I agree David Watt J.A.”
“I agree Grant Huscroft J.A.”