Court of Appeal for Ontario

Date: June 6, 2017 Docket: C55648

Feldman, MacPherson and Benotto JJ.A.

Between

Her Majesty the Queen Respondent

and

David French Appellant

Counsel

David French, acting in person

Jill R. Presser and Andrew Menchynski, appearing as amicus curiae

Roger Pinnock, for the respondent

Heard: May 12, 2017

On appeal from the conviction entered on July 15, 2010 and the sentence imposed on October 20, 2010 by Justice Gladys I. Pardu of the Superior Court of Justice, sitting with a jury.

Feldman J.A.:

Overview

[1] The appellant was convicted by a jury of second degree murder of his common law partner. The trial judge imposed a 17 year period of parole ineligibility. The appellant appeals both his conviction and sentence. Written and oral submissions were made by amicus as well as by the appellant.

[2] Amicus raised two grounds of appeal against conviction. The first related to the trial judge's treatment of new evidence that emerged during jury deliberations. The second error alleged is that the trial judge erred by improperly limiting the cross-examination of the officer-in-charge. The appellant also appeals against sentence, supported by amicus. In addition, he advanced on his own a number of arguments regarding his conviction.

[3] We do not accept either of amicus' grounds of appeal, nor do we accept the appellant's. For the reasons that follow, the appeal is dismissed.

Background

[4] The victim was found in an armoire with ligature marks around her neck and threads from a blue terry cloth bathrobe. When the appellant was initially interviewed by the police, he denied any involvement. They asked about a bathrobe. He said he had a blue one but did not know where it was, but he thought it was either at the victim's apartment where he and the victim had lived or at his grandmother's.

[5] A few weeks later, after visiting a religious ministry, the appellant walked into a police detachment in Niagara, refused the offer of a lawyer, and confessed to the murder, saying that he had strangled the victim with his hands and with the blue bathrobe. He later returned and cut her down. The appellant was charged with first degree murder.

[6] At his trial, the appellant recanted his confession. His explanation for confessing falsely was to prevent the victim's death being ruled a suicide so that her son would not be denied insurance proceeds, and to obtain disclosure of police files to find the real killer, who he believed was an enemy of his from organized crime.

[7] The day after the case went to the jury and while they were in the course of deliberating, the victim's mother, who was not present during the charge, read the jury charge and learned for the first time that the weapon was a blue bathrobe. She told the Crown that she had found a blue terry robe belonging to the appellant at the victim's home, following the murder, and threw it out along with some other clothes belonging to the appellant. The Crown advised defence counsel and the trial judge.

[8] The Crown asked for a mistrial. Defence counsel consulted with the appellant, considered the matter overnight and told the trial judge that the defence agreed that the new evidence had to be placed before the jury, but that the defence did not want a mistrial. He submitted that his client was in custody and wanted the trial to continue. The trial judge accepted the position of the defence and ruled that the jury would be given the evidence but no mistrial would be declared. The evidence was put before the jury by an agreed statement of facts. Both counsel made brief addresses on the significance of the new evidence, and the trial judge gave a brief recharge, following which the jury continued its deliberations.

Amicus' First Ground of Appeal Against Conviction

[9] Amicus now submits that the trial judge erred by failing to order a mistrial in light of the prejudicial effect of the new evidence and the Crown's address to the jury on its significance. Alternatively, amicus submits the trial judge erred by failing to instruct the jury to recommence their deliberations from the beginning.

[10] We do not agree that the trial judge erred by failing to declare a mistrial.

[11] It is clear from the record that the defence wanted the evidence to be given to the jury and did not want a mistrial. We agree that ultimately the decision was for the trial judge and that prejudice to the accused is the prime consideration. However, where the defence makes its position very clear, the trial judge is entitled to accept that the defence does not believe that the course of action proposed will be prejudicial to the accused.

[12] The appellant was at the end of a seven-week trial. Declaring a mistrial would have caused substantial further delay. We would expect a trial judge acting judicially to accept the position of the defence unless she saw some potential prejudice that would override consideration of the wishes of the accused.

[13] Amicus submits the trial judge misunderstood the potential prejudice the new evidence posed to the accused. The trial judge only admitted the new evidence on the understanding that it could not help the Crown, but in fact the evidence cut both ways.

[14] A close examination of the record discloses that although the trial judge did state during her ruling the evidence could not help the Crown, when Crown counsel previewed what she intended to tell the jury, her proposed submissions were that the evidence bolstered the Crown's case in a number of ways. It enhanced the credibility of the victim's mother who had testified that there had been problems between the victim and the appellant, and it supported the Crown's position that the appellant had told the truth when he confessed to killing the victim using the blue robe.

[15] In response, both the trial judge and defence counsel acknowledged that they expected the Crown would take those positions with the jury. Therefore, they knew that the jury could draw both exculpatory and an inculpatory inferences from the new evidence.

[16] Amicus also submits that the new evidence should not have been disclosed to the jury because by the time it came to light, the jury had already reached the point in their deliberations where they had determined that the appellant was the killer. This was clear, they submit, from the jury's early question about the evidence that would disclose the appellant's state of mind, together with the explicit jury instructions directing the jury to decide the issues in order, first determining whether the appellant had caused the death of the victim before turning to his state of mind.

[17] Amicus submits that it was therefore too late to introduce new evidence and expect the jury to be able to consider it as exculpatory of the appellant. Further, in her recharge, the trial judge failed to tell the jury that they now had to start their deliberations from the beginning. Both these errors caused irreparable prejudice to the appellant.

[18] We do not accept this submission. We agree with the Crown that it is not possible to know what stage the jury had reached in its deliberations just because of the question it asked. They could well have been doing an overview of the issues before beginning to address them sequentially as instructed by the trial judge. This is consistent with this court's judgment in R. v. Parks, 84 C.C.C. (3d) 353. During jury deliberations in Parks, the trial judge made corrections to the charge after the jury had already asked a question about provocation. On appeal, the appellant submitted that the question indicated the jury had already found against the appellant on the issue of identity. In rejecting this submission, Doherty J.A. explained at p. 358:

I cannot agree with the appellant's submission. That submission requires that I assume the jury had reached a definite conclusion that the appellant had killed the deceased. It also requires that I assume that because the jury had reached that conclusion, they chose to pay no heed to the corrections made by the trial judge. I will neither speculate as to what findings, if any, the jury had made when it addressed its second question to the trial judge, nor assume that the jury did not listen to his corrections and consider those corrections in their subsequent deliberations. This ground of appeal fails.

[19] We also agree with the Crown that the decision of Trotter J. (as he then was) in R. v. Drysdale, 2011 ONSC 5451, 275 C.C.C. (3d) 219, is distinguishable. In that case, the trial judge in a judge-alone trial had already rendered his verdict and reasons for decision including negative credibility findings regarding the accused by the time the new evidence emerged. Trotter J. indicated that he could not consider the new evidence appropriately at that stage of the proceedings, and that if his findings remained unchanged, his decision may not have the appearance of fairness. In contrast, in this case, when the new evidence was given to the jury, no verdict had been reached and the jury was in the course of its deliberations. The concerns expressed by Trotter J. therefore did not arise.

[20] Further, we do not accept that the trial judge erred by failing to tell the jury that they now had to start their deliberations from the beginning. The evidence was put before the jury in a neutral manner as an agreed statement of facts. The trial judge gave brief instructions that told the jury to consider the new evidence as part of the evidence as a whole. We see no error in her instructions.

Amicus' Second Ground of Appeal Against Conviction

[21] Amicus' second ground of appeal against conviction is that the trial judge erred by not allowing the appellant to cross-examine one of the lead police investigators about information from a confidential informant that the appellant had ties to organized crime and enemies in the organized crime community. The defence wanted this evidence to rebut a Crown allegation of recent fabrication in connection with the appellant's recantation and his allegation that one of his enemies had committed the murder. The trial judge refused to allow the cross-examination because it would only elicit hearsay, and no proper application had been brought based on necessity and reliability.

[22] On appeal, amicus argues that the trial judge erred in holding the defence sought to adduce this evidence for a hearsay purpose. The evidence could have been admitted only for the fact that it was said to rebut the allegation of recent fabrication. The defence did not seek to admit the statement for the truth of its contents.

[23] We reject this submission and agree with the trial judge that the evidence was hearsay and had to go in for the truth of its contents to corroborate the appellant's evidence. The appellant's trial counsel specifically stated that he sought to adduce this evidence as "some corroboration for the information that David French had given to the authorities".

[24] Likewise, in the circumstances of this case, this statement was not admissible to rebut an allegation of recent fabrication.

[25] Setting aside the fact that the informant's information was not a prior consistent statement by Mr. French himself, the Crown was not making an allegation of recent fabrication. On the application, Crown counsel confirmed that in cross-examination they would not suggest to the appellant "this is the first time you're saying that". And the Crown never did so. Although Crown counsel ultimately suggested Mr. French was not telling the truth, the Crown did not suggest to him that he had changed his story because of a new motive to lie. Put simply, the allegation was merely one of fabrication, not recent fabrication. For that reason, the prior statement had no probative value unless it was true. It was either irrelevant or hearsay.

[26] The trial judge also left it open for the appellant to renew the application, if a proper foundation were laid for it, but he did not do so.

[27] Amicus also complains that in Crown counsel's cross-examination of the appellant and during her closing submissions, she impugned the appellant's veracity with respect to his suggestion that he had enemies in biker gangs, contrary to her earlier assertion that she did not propose to do that but only to suggest the implausibility of his stated reason for falsely confessing to the murder. While the Crown may have marginally overstepped her stated intent, she was entitled to challenge the appellant on this crucial issue. And as noted, the appellant did not then seek to renew the application to have the jury hear from the police officer a report of what the confidential informer had said about the appellant's biker connections. We therefore reject this ground of appeal.

The Sentence Appeal

[28] Amicus also supports the appellant's appeal against sentence. Amicus submits that the trial judge erred in principle by imposing a 17 year parole ineligibility term which was outside the range of 12 to 15 years set by this court in McKnight, 135 C.C.C. (3d) 41. Amicus submits that if 17 years was in the range, the sentence is manifestly unfit. The trial judge also erred by finding that the murder was planned and treating that as an aggravating factor, when the jury acquitted the appellant of first degree murder.

[29] In our view, the trial judge made no errors in principle in imposing the 17 year parole ineligibility period.

[30] As first degree murder requires both planning and deliberation, the trial judge was entitled to accept the appellant's confession that he planned the murder, while accepting that the jury's acquittal from first degree murder suggested that they found no deliberation. The jury was instructed that a deliberate act is "one that the actor has taken time to weigh the advantages and disadvantages of" and is a "considered" and "carefully thought out act". Although it will doubtless be rare for a jury to find lengthy planning without deliberation, the two findings are not prima facie incompatible or contradictory. We see no basis to interfere with the trial judge's conclusion.

[31] With respect to the range, cases from this court including R. v. Wristen, 141 C.C.C. (3d) 1, and R. v. Czibulka, 2011 ONCA 82, 267 C.C.C. (3d) 276, allow a range up to 17 years in circumstances where there are no mitigating factors or remorse. The trial judge's determination is entitled to deference. The sentence was not unfit.

The Appellant's Additional Issues

[32] The appellant based his submissions substantially on the ground that his s. 7 Charter rights had been infringed by the police before the death of the victim and by the unjust treatment he says he has suffered while incarcerated. He also raises issues regarding how the evidentiary record was developed at trial, but these could only be addressed if a new trial were to be ordered. The appellant would like his s. 7 Charter rights to be determined by the Supreme Court of Canada, and seeks the remedy of a stay or acquittal based on the s. 7 Charter breaches.

[33] As there was no s. 7 Charter issue raised at trial, and no record on which a Charter issue could be discussed or determined, there is no basis for this court to address a s. 7 Charter issue or to grant the remedy requested.

Conclusion

[34] The appeal against conviction is dismissed. Leave to appeal sentence is granted but the appeal is dismissed.

Released: June 6, 2017

"K. Feldman J.A."

"I agree. J.C. MacPherson J.A."

"I agree. M.L. Benotto J.A."