Court of Appeal for Ontario

Date: 2018-03-14 Docket: C58320 Judges: Juriansz, Watt and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Charles Alan Rosen Appellant

Counsel

Michael Lacy, for the appellant Alexander Alvaro, for the respondent

Heard: January 31, 2018

On appeal from: The conviction entered on September 31, 2011, and the sentence imposed on November 24, 2011, by Justice James C. Kent of the Superior Court of Justice, sitting with a jury.

Judgment

Watt J.A.:

[1] Conviction and Sentence

[1] After brief deliberations, a jury found the appellant guilty of second degree murder. The trial judge imposed the mandatory sentence of imprisonment for life and ordered that the appellant serve 17 years of that sentence without eligibility for parole.

[2] The appellant appeals both conviction and sentence.

The Background Facts

[3] After his release from jail in December 2008, the appellant moved in with the deceased in the deceased's apartment. That year had been a difficult one for the appellant. His marriage had fallen apart. He lost his home. He became addicted to crack cocaine. He had no money. The deceased had served as the appellant's surety the previous year. As the deceased told his friends, he was trying to help the appellant get through these myriad difficulties.

[4] In late December 2008, the appellant disappeared. Around this time, the deceased learned that someone had been using his credit cards without his permission. The deceased told his friends and the police that he suspected the person who had done so was the appellant. His suspicions were accurate.

[5] It was common ground at trial that in February 2009, after he had left the deceased's apartment, the appellant cashed several cheques written on the deceased's bank account. The deceased's signature on the cheques had been forged. On several occasions prior to February 10, 2009 the appellant attempted to make purchases with the deceased's credit cards. Many of these purchases were declined by the credit card issuers. Between 2:07 a.m. on February 10 and 12:59 p.m. on February 11, 2009 the appellant did not attempt to use any of the deceased's credit cards.

[6] On February 10, 2009 the deceased met with the building manager of his apartment building who installed a fire alarm in the deceased's apartment. The deceased agreed to provide the building manager with a set of keys for the new lock the deceased had installed on his apartment door.

[7] The deceased did not provide the building manager with a new set of keys, nor did he keep an appointment scheduled for February 13, 2009 with a friend. No one saw the deceased alive after February 10, 2009.

[8] On February 12, 2009 the appellant, posing as the deceased, called three financial institutions attempting to reactivate the deceased's credit cards. One of the calls was made from the deceased's apartment. By February 23, 2009 all four of the deceased's credit cards had been terminated. The appellant had made 83 successful purchases with a total value of more than $10,000, but several transactions had been declined.

[9] Friends became concerned about the welfare of the deceased. On March 4, 2009 two of them went to the deceased's home in Dunnville. His car was in the driveway. The driver's seat was fully reclined and the interior, a mess – a state inconsistent with how the deceased typically maintained his vehicle. The appellant was slumped in the driver's seat. A hammer rested on the floor in front of the front passenger seat. A tube extended from the exhaust pipe through the trunk and into the passenger compartment of the car by means of a pass through in the rear seat.

[10] Emergency assistance was called. The appellant, who appeared under the influence of drugs, identified himself as the deceased, provided a correct date of birth, and claimed to be the owner of the deceased's home. The ruse failed. The appellant was arrested and searched. Among the items seized was one of the deceased's credit cards and a key to the front door of the deceased's apartment. In the deceased's vehicle, police found the deceased's wallet containing his identification and credit cards but no money.

[11] Later that evening, police found the body of the deceased in a sleeping bag under a pile of items over three feet deep under a window overlooking the balcony of his apartment. The deceased's head was covered with a hospital bag, a torn garbage bag, and a blood-soaked t-shirt. The appellant's fingerprint impression was found on the garbage bag and on a letter on the kitchen counter in the deceased's apartment. The hammer found with the appellant in the deceased's vehicle could not be excluded as having caused damage to the t-shirt and the garbage bag covering the deceased's head. The appellant could not be excluded as the source of DNA on the handle of the hammer. The deceased could also not be eliminated as the source of blood found on the hammer, which the Crown alleged was the murder weapon. In support of this theory, the Crown tendered evidence from a pathologist indicating that the deceased had suffered nine to ten lacerations to his head and multiple skull fractures. These injuries appeared to have been caused by a blunt object.

[12] The appellant testified at trial. He denied killing the deceased, although he admitted having found his body when he went to the apartment on February 12, 2009.

[13] The appellant acknowledged having used the deceased's credit cards, but claimed he did so as part of a scheme he and the deceased had put together to defraud the card issuers. Purchases would be made on each of the cards. The items purchased would be sold for cash and the cards reported stolen. The plan also involved forged cheques, which would be immediately cashed, and sale of the deceased's car and television set which would then be reported stolen to collect insurance money. The plan did not work well.

[14] On February 12, 2009 the appellant went to meet the deceased to discuss their fraudulent scheme. The entry door was unlocked, the apartment uncharacteristically messy. A 400 pound safe was missing. The appellant found the deceased's body. After he found the body, the appellant knew the scam was over. He decided to commit suicide. After his initial attempt failed, he returned to the deceased's apartment and removed the hammer and a knife to ensure a tight attachment of the hose and effective transmission of the gas fumes to the passenger compartment of his vehicle.

The Appeal from Conviction

[15] On the appeal from conviction, the appellant advanced three submissions in oral argument. He argued that the trial judge erred:

i. in failing to properly instruct the jury on the mental or fault element in murder, as well as that required for the included offence of manslaughter;

ii. in failing to adequately caution the jury about reliance on various ante-mortem statements of the deceased admitted at trial; and

iii. in failing to properly instruct the jury about evidence of post-offence conduct and, more generally, in connection with the evidence of discreditable conduct properly admitted at trial.

[16] As I will briefly explain, I would not give effect to any of these grounds and, as a consequence, dismiss the appeal from conviction.

Ground #1: The Fault Element in Murder and Manslaughter

[17] The appellant says that the trial judge failed to properly instruct the jury on the fault element in the offence charged, second degree murder, and the included offence of manslaughter. The error, according to the appellant, resulted from a combination of missteps.

[18] To begin, the appellant contends, the structure of the charge was confusing and fraught with error.

[19] The threshold issue for the jury to determine in this case was whether the Crown had proven beyond a reasonable doubt that the appellant was the person who killed the deceased. In the event, but only in the event that the jury was satisfied that the appellant had killed the deceased, would it become necessary for the jury to decide whether the killing, admittedly unlawful, was murder or manslaughter.

[20] According to the appellant, the structure or order of the charge adopted by the trial judge, that is to say:

i. unlawful killing;

ii. state of mind; and

iii. identity of the killer

required the jury to determine the state of mind of the deceased's killer before they were satisfied that the killer was the appellant. This predisposed a verdict of guilty of second degree murder, before determination of the threshold issue of identity, especially when the trial judge:

i. failed to review the essential features of the evidence and relate them to the fault element for second degree murder as defined in s. 229 (a) of the Criminal Code; and

ii. highlighted the appellant's affirmative response to an improper question by the trial Crown, agreeing with the suggestion that the unlawful killing of the deceased was "a murder plain and simple".

[21] As I will explain, I would not give effect to this ground of appeal.

[22] First, the parties are entitled to a properly instructed jury, not a perfectly instructed jury: R. v. Jacquard, [1997] 1 S.C.R. 314, at pp. 320-321; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 31. Substance controls, not form.

[23] Second, the order in which the essential elements of an offence are left to the jury for their consideration is not mandatory. What counts is that the essential elements are conveyed to the jury in understandable language that coincides with the governing legal principles. In this way, the charge informs the decision-maker of what must be proven in connection with each essential element, and the consequences of the available findings on further deliberations and the jury's verdict.

[24] On the other hand, where an accused denies participation in the conduct requirements of an offence, it makes good sense and accords with the prevailing practice in this province to instruct the jury to consider and determine the participation or identity issue first. If the case for the Crown fails on this issue in a prosecution for second degree murder, the jury need not consider whether the killing was unlawful or, if unlawful, whether its legal character is murder or manslaughter. If this structure is followed, the risk of confusion is minimized and the artificiality of which the appellant complains is avoided.

[25] That said, I am not persuaded that in the circumstances of this case the order in which the trial judge presented the essential elements of second degree murder caused the appellant any prejudice. Counsel on both sides of the case expressly approved of the trial judge's approach. Neither the unlawful character of the killing nor the state of mind of the killer were matters of great controversy at trial. The pathologist's evidence regarding the cause of the deceased's death was largely unchallenged, and the appellant's defence rested on his claim that someone else had killed the deceased.

[26] Third, trial counsel objected to neither the trial judge's ordering of the elements of second-degree murder, nor his references to the evidence relating to the issue of the legal character of the unlawful killing as murder or manslaughter. While lack of objection to the jury instructions is not dispositive of their adequacy, it affords some evidence that counsel did not consider the references inadequate to ensure the jury's appreciation of the value and effect of the evidence: R. v. B. (P.), 2015 ONCA 738, 127 O.R. (3d) 721, at para. 186.

[27] Finally, although I agree that the trial Crown's question soliciting the appellant's agreement that multiple hammer blows to the head bespoke "a murder plain and simple" and the repetition of this response in the Crown's closing and in the charge to the jury should not have occurred, I am not satisfied that it caused the appellant any prejudice, for the reasons I have already outlined.

Ground #2: Jury Instruction on Ante-mortem Statements

[28] The second ground of appeal also focuses on an alleged deficit in the final jury instructions: the absence of guidance on how jurors should assess evidence of various ante-mortem statements of the deceased admitted under the principled exception to the hearsay rule.

[29] Evidence of the ante-mortem statements of the deceased was admitted with the express consent of defence counsel (not Mr. Lacy). Both parties relied upon this evidence in support of their case, albeit for different purposes.

[30] The evidence tended to show the nature of the relationship between the appellant and deceased. Among other things, it revealed:

i. that the deceased tried to help the appellant get through a difficult time in his life after his release from jail in December, 2008;

ii. that the deceased allowed the appellant to stay at his apartment and to take care of his home; and

iii. that the deceased tried to keep the appellant away from crack cocaine.

[31] The ante-mortem statements also disclosed:

i. that the appellant had stolen and used the deceased's credit cards, racking up several hundred dollars for jewellery purchases;

ii. that the appellant had taken "a bunch of stuff" without the deceased's permission;

iii. that the deceased had evicted the appellant from his apartment, was finished or "done" with the appellant, and was advised to change or had considered changing the locks on the apartment to prevent the appellant's re-entry; and

iv. that the deceased had called the police and reported a credit card stolen.

[32] In giving evidence in his own defence, the appellant recounted a lengthy series of conversations he had with the deceased, at least some of which were relied upon as evidence of their truth. As we have noted above, the defence position at trial was that the appellant and the deceased devised a plan which involved the appellant running up charges on the deceased's credit cards by purchasing items that could later be resold for cash. The appellant relied upon ante-mortem statements by the deceased in support of this theory.

[33] The appellant says that the trial judge erred by failing to caution the jury about the dangers associated with reliance on the deceased's ante-mortem statements. They were hearsay, thus subject to the usual hearsay dangers. The deceased had a motive to implicate the appellant in the credit card, bank and insurance scam. In addition, much of the evidence was very general in nature and sometimes tended to reflect the recipient's interpretation of what was said, rather than to faithfully recount the contents of the statement.

[34] As some of the evidence of ante-mortem statements was being given at trial, the trial judge gave brief mid-trial instructions to the jury. He told the jury that the evidence was hearsay and added:

It may or may not be true, but we of course don't know that from this witness's testimony.

[35] Shortly thereafter the trial judge expanded somewhat on his earlier brief remarks:

Further to what I said earlier, the evidence of those witnesses may be taken as if Gary Donato [the deceased] himself was here saying those things. It's evidence you may consider in determining whether, if it's necessary for you to determine it, whether Charles Rosen was a friend of Gary Donato and that Gary was helping out, and Gary told a particular witness, for example, that someone had taken his credit card and that he thought the person who had taken it was his friend, Charles. So again, that's evidence that you may take as if Gary Donato was here saying it, and you may consider the evidence in determining whether these matters have been established on the evidence. I will have much more to say about how you assess evidence and weigh evidence in my Charge and direction to you at the conclusion of the trial, but just to assist you a bit, I hope to assist you a bit, at this point given that there are several witnesses of this type, I felt that a further explanation was in order.

[36] In his charge, the trial judge instructed the jury in these terms:

Out-of-court statements that are admitted for the truth of the matter asserted are called hearsay, and they are not usually admitted as evidence. However, there are exceptions to this rule, and I have allowed some of those statements to be presented to you. For example, you heard some witnesses testify that Gary Donato told them that Charles Rosen had stolen his credit card. Normally, evidence like that would be inadmissible hearsay. But in this case, I have permitted that evidence to be admitted, and you may rely on it in making your decision. As I directed you at the time when this came up in the trial, it's as if Gary Donato was here to give that evidence himself. Clearly that can't happen, so we rely on people that he spoke to and what he said to them.

[37] Neither counsel objected to the charge. Neither sought a repetition of the mid-trial instructions or further instructions to explain to jurors how to assess the evidence of the deceased's ante-mortem statements.

[38] It is commonplace that there are at least four potential sources of error when a witness describes an event she claims to have observed:

i. perception;

ii. memory;

iii. communication; and

iv. sincerity.

In most cases, the trier of fact is able to consider these testimonial factors in deciding what weight, if any, to assign to the witness' evidence because the witness is generally required to testify under three conditions:

i. personal presence before the trier of fact;

ii. under oath or its equivalent; and

iii. subject to cross-examination.

[39] The principal reason we exclude hearsay is the absence of a contemporaneous opportunity for cross-examination. For it is cross-examination that may best expose defects in perception and memory, as well as ambiguity in communication and want of sincerity: Youvarajah, at paras. 18-19. But in the classic hearsay paradigm, of which this case affords an example, the maker of the statement does not appear as a witness before the trier of fact, and thus is neither under oath or its equivalent, nor subject to cross-examination.

[40] Where the maker of the statement offered in evidence – the declarant – is not a witness, it would be obvious to the jury that this evidence is different than the rest of the evidence admitted at trial. The maker of this statement did not appear at trial, was not under oath and was not cross-examined.

[41] Despite the self-evident nature of these differences, a salutary practice prevails in this province to instruct jurors about how to approach their assessment of hearsay evidence, including alerting them to its shortcomings and the advisability of confirmatory evidence in assessing its reliability: see, for example, R. v. A(S), 76 C.C.C. (3d) 522 (Ont. C.A.), at pp. 527-529; R. v. Chretien, 2014 ONCA 403, 309 C.C.C. (3d) 418, at paras. 69-71.

[42] In the circumstances of this case, I am not persuaded that the trial judge's failure to include an express caution regarding the ante-mortem statements of the deceased amounted to prejudicial error. I have reached this conclusion for several reasons.

[43] First, this is not a case, as are many, in which it was only the Crown who relied on these statements to prove the charges against the appellant. In such a case, omission of a limiting instruction, especially where the ante-mortem statements reflect extrinsic misconduct of a kind apt to foster propensity reasoning, may cause an accused significant prejudice. But that is not this case. Here, the appellant relied on the hearsay evidence, much of which he confirmed in his own testimony, to advance his defence in which he admitted participation in a fraudulent scheme, but denied responsibility for the death of the deceased.

[44] Second, both parties were content that the evidence was properly admissible under the principled exception to the hearsay rule. There was no real controversy about the making of the statements, although the parties differed about the inferences the jury should draw from them. Defence counsel did not request an instruction of the kind now said to have been fatally neglected, nor object to its omission.

[45] Third, to some extent at least, a caution of the nature now said to have prejudiced the appellant by its absence, would not necessarily have been beneficial to the position of the defence. After all, as I have already said, the defence relied on this evidence to support the position it advanced before the jury. A caution would have applied with equal vigour to the defence reliance on this evidence.

Ground #3: The Unbalanced Charge

[46] The appellant contends that the trial judge erred by failing to provide a fair and balanced charge to the jury on four discrete aspects of the evidence adduced at trial:

i. post-offence conduct and prior inconsistent statements;

ii. motive;

iii. other discreditable conduct; and

iv. circumstantial evidence.

In addition, the appellant says that the trial judge failed to adequately and meaningfully relate the evidence to the elements of the offence and to the position of the defence.

[47] As I will briefly explain, I am not convinced that any shortcomings in the charge were sufficiently serious to warrant our intervention.

[48] First, evidence of post-offence conduct.

[49] The principal complaint on this issue is that, apart from summarizing the evidence in this category, the trial judge failed to properly explain to the jury how it could be used to determine whether the Crown had proven its case beyond a reasonable doubt. What was lacking, according to the appellant, were explanations of the permitted use the jury could make of evidence of post-offence conduct, as well as its prohibited use, as for example, to determine the level of the appellant's culpability.

[50] Evidence of post-offence conduct is circumstantial evidence which is not subject to any special rule of admissibility. It simply cannot be suggested that evidence of anything done or said by an accused after an offence has been committed gives rise to special rules of admissibility or mandates special warnings to border its use by the trier of fact. It is for the jury to say, on the basis of the evidence as a whole, whether the post-offence conduct is related to the crime charged rather than to something else and, if so, how much weight, if any, should be assigned to it in the final determination of the adequacy of the case for the Crown: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 105 and 137.

[51] In this case, the Crown did not argue that what the appellant said and did after the last sightings of the deceased were motivated by consciousness of guilt. Instead, the Crown submitted that the relevant conduct – use of the deceased's identity, vehicle and financial instruments over a number of days – indicated that he had specific and unique knowledge that the deceased was dead. On the basis of this knowledge, the Crown asked the jury to infer that the appellant killed the deceased to gain access to his money. This was an appropriate inference to ask the jury to draw.

[52] In my view, the trial judge's instructions were responsive to the use the parties made of this evidence at trial. Instructively, counsel did not request a more fulsome or nuanced instruction and made no complaint of its omission.

[53] Turning to the issue of motive. The trial judge briefly explained the relevance of evidence of motive to the demonstration of guilt. He pointed out the motive relied upon by the Crown and incorporated the denial of any motive on the appellant's part in his discussion of the position of the defence. The trial judge was not required to put to the jury the appellant's speculative opinion about why the deceased may have been killed by somebody else.

[54] In connection with evidence of discreditable conduct and the need for an instruction enjoining propensity reasoning, neither party at trial, despite ample opportunity to do so, sought a prophylactic direction or complained of its absence. The trial Crown did not advance an argument that invoked or invited propensity reasoning on the basis of the evidence of which the appellant now complains. Nothing said or left unsaid by the trial judge invited the jury to pursue this route to verdict.

[55] Nor should we lose sight of the obvious: much, if not most of the evidence of disreputable conduct came from the appellant's own testimony and was an essential feature of the defence case. The appellant testified to using the deceased's credit cards and cashing cheques bearing the forged signature of the deceased as part of a joint venture between the two men to remedy their financially-straitened circumstances. Each shared in the profits. Neither this evidence nor any other evidence about unrelated discreditable conduct was likely to invite propensity reasoning by jurors even in the absence of an instruction not to do so.

[56] The appellant also faults the trial judge for having failed to adequately review the evidence supportive of the defence position and to relate it to that position so that the jury would appreciate its value and effect.

[57] The appellant advanced his defence principally through his own testimony, admitting his participation in the fraudulent scheme with the deceased, but denying complicity in his death. The trial judge reviewed this evidence in detail and coupled it with a W.(D.) instruction. That he failed to make reference to other items of evidence said now to demonstrate the deceased's deceitful nature – and thus render more likely that the fraudulent scheme was a joint venture rather than, as the Crown contended, the exclusive work of the appellant – does not reflect prejudicial error. Non-direction with respect to items of evidence is not, without more, misdirection. Non-direction on a matter of evidence only becomes misdirection where the non-direction relates to an item of evidence that is the foundation of the case: R. v. Demeter, 25 C.C.C. (2d) 417 (Ont. C.A.), at pp. 436-437, aff'd on other grounds, [1978] 1 S.C.R. 538; R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 136. The items of evidence about which nothing was said fall well short of this standard.

[58] Moreover, on this issue as well, the absence of any objection and of any request for further instruction tells heavily against the assertion made here that the charge was unbalanced and failed to ensure the jury's appreciation of the defence advanced.

[59] For these reasons, I would dismiss the appeal from conviction.

The Appeal from Sentence

[60] The appellant also appeals the period of parole ineligibility of 17 years fixed by the trial judge.

[61] At trial, seven jurors made recommendations about parole ineligibility. Six jurors recommended 25 years. One juror recommended 15 years. The remaining five jurors made no recommendation.

[62] The positions of the parties at trial differed significantly. The Crown sought a parole ineligibility period of 17 years. Defence counsel advocated for 12 years.

[63] In brief reasons, the trial judge identified the applicable range of parole ineligibility as between 12 and 18 years. It was his view that the predominance of aggravating factors over mitigating factors warranted a period of 17 years of parole ineligibility.

[64] In this court, the parties relied on their written submissions on this issue.

[65] The appellant says that the period of parole ineligibility is harsh and excessive. He points to three discrete errors which he submits warrant our intervention. He contends that the trial judge erred:

i. by failing to provide adequate reasons to explain his conclusion about parole ineligibility;

ii. by failing to give adequate weight to the sentencing objective of rehabilitation; and

iii. by fixing a period of parole ineligibility that was outside the acceptable range of periods of parole ineligibility for similar offenders, offences and circumstances.

[66] Despite the brevity of the trial judge's reasons, we are satisfied that they are sufficient to permit meaningful appellate review.

[67] I accept that the objectives and principles of sentencing set out in ss. 718 - 718.2 of the Criminal Code may be applicable to decisions regarding parole ineligibility. Among those sentencing objectives is assisting in the rehabilitation of an offender under s. 718 (d). But as is well known, not every sentencing objective in s. 718, or for that matter every sentencing principle in s. 718.2, is at play in every case. Nor if in play, must these principles ascend to a place of prominence in the sentencing decision.

[68] The objective of rehabilitation has much to say in the determination of the nature and length of sentences to be imposed upon youthful and first offenders to ensure that a sentence of imprisonment is not so lengthy as to extinguish or substantially diminish any realistic rehabilitative prospects. But here we are not concerned with the nature or quantum of sentence to be imposed. The Criminal Code requires imposition of a sentence of imprisonment for life on conviction of second degree murder. Nor are we concerned with when the appellant will be conditionally released from custody. That decision is assigned to the parole board. Although in assessing the fitness of the period of parole ineligibility fixed by the trial judge, we must be mindful of the sentencing objective of assisting the appellant's rehabilitation, we must also take into account that the mandatory sentence of imprisonment for life and the mandatory ten-year minimum period of parole ineligibility circumscribe the weight that can be accorded to the appellant's prospects of rehabilitation: R. v. McKnight, 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 39.

[69] I agree with the trial judge that the circumstances of this case warranted a substantial increase in the period of parole ineligibility. The murder involved a significant breach of trust. The deceased had provided the appellant with a place to live after the appellant's release from jail in December, 2008. The deceased was trying to assist the appellant in getting his life back on track after the death of his father, the loss of his home and the dissolution of his marriage. Despite the succour he received from the deceased, the appellant bludgeoned his benefactor to death with a hammer in the deceased's apartment. He continued his fraudulent use of the deceased's credit cards after his demise, made repeated efforts to have the cards reinstated and used the deceased's property and vehicle as his own.

[70] In these circumstances I am satisfied that the period of parole ineligibility fixed by the trial judge is proportionate to the gravity of the appellant's offence and his degree of responsibility for having committed it. We do not consider it as harsh or excessive or beyond the range of periods of parole ineligibility appropriate for offences of this nature.

Conclusion

[71] For these reasons, I would dismiss the appeal from conviction, grant leave to appeal sentence, but dismiss the appeal from sentence.

Released: March 14, 2018

"David Watt J.A." "I agree. R.G. Juriansz J.A." "I agree. B.W. Miller J.A."

Footnotes

[1] In oral argument, the appellant abandoned two other grounds of appeal included in his factum.

[2] R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at paras. 18-19.