Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20210219 DOCKET: C65574

Feldman, Tulloch and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Warren Mann Appellant

Counsel: Adam N. Weisberg, for the appellant Holly Loubert, for the respondent

Heard: February 3, 2021 by video conference

On appeal from the conviction entered by Justice Susan E. Healey of the Superior Court of Justice, sitting with a jury, on April 20, 2015, and from the sentence imposed on April 21, 2016, with reasons reported at 2016 ONSC 2675.

Nordheimer J.A.:

[1] Mr. Mann appeals from his conviction for attempted murder. [1] He also seeks leave to appeal his sentence of life imprisonment. For the reasons that follow, I would allow the conviction appeal and order a new trial. As a consequence, I do not reach the sentence appeal.

I: Background

[2] The appellant originally met the victim when she was a sex worker. They met three of four times in late 2010 or early 2011, each time for an hour of paid sex. The appellant testified that the two agreed that the appellant should move into her apartment where she lived with her son. The two lived together for about three to four days before the victim, who had a history of alcohol abuse, was arrested on June 25, 2011 (for breach of probation and assaulting a police officer) and sentenced to a period of incarceration.

[3] The appellant became the “breadwinner” of the house. He took responsibility to care for the victim’s children. During the victim’s incarceration, the appellant lived at the apartment with the victim’s son, paid the bills and gave financial assistance to both the son and the victim’s daughter.

[4] The victim was released on March 28, 2012 and entered an alcohol rehabilitation program, which was completed in early May 2012. The evidence at trial was that the program was successful. The victim first moved into a rooming house and then, in July 2012, moved into a rental home with her daughter and her daughter’s boyfriend in Barrie.

[5] The appellant discovered that the victim was intending to move into the rental home on July 25, 2012. On that same date, the appellant, who was a long-haul truck driver, arrived back in Toronto from a long-distance haul and drove to Barrie. The appellant believed that he and the victim were developing a relationship and, consequently, he was expecting to move into the Barrie home on that day.

[6] However, the romantic relationship that the appellant envisioned was not progressing as he had hoped. It appears that the victim did not share the appellant’s plans for their relationship. On this day, there was an exchange of text messages between the two with the appellant asking what he meant to the victim and what type of relationship she wanted.

[7] The appellant spent the evening with the victim at the Barrie home. He wanted to discuss their relationship, but the victim did not. Eventually, the appellant went out to his car and wrote on an envelope: “ Just want to say thanks [the victim’s first name], O nce again you got what you wanted and to hell with me. and my feelings ”. The appellant said that the message was a precursor to suicidal thoughts that led him to test a knife he had by running it across the palm of his hand. However, the knife was dull, he abandoned the idea, and he re-entered the house.

[8] The appellant testified that he attempted to initiate a conversation with the victim about telling her children that he was moving in. She rebuffed him again. He testified that, at this point, the victim became angry and began to hit him. He recalled reaching out and grabbing her arms to stop her from hitting him. According to the appellant’s version of the events, the two lost their balance and fell down together. He testified that he had no memory of what happened next.

[9] In fact, the appellant began choking the victim. He repeatedly banged her head against the floor. The appellant called 911 (although he did not remember doing so) and told the dispatcher that he would “like to report a murder”. He went on to say that he had killed his “so-called girlfriend" by choking her and beating her to death with his hands. The 911 operator continued to hear loud banging during the call, which was consistent with the head injuries the victim suffered. When asked by the 911 operator if he was sure that the victim was dead, the appellant said, “Uh pretty sure, she’s going to be [unintelligible] anyway.” The victim suffered life-threatening and permanent injuries, including brain damage, from the attack.

[10] The appellant maintained that he did not intend to kill the victim. His position at trial was that the Crown had failed to prove the specific intent to kill. Among other things, defence counsel noted that the appellant did not make use of the knife in his vehicle nor did he make use of a hammer that was in the bedroom, where the attack took place, to carry out the attack.

II: Issues

[11] The appellant raises two central issues on his conviction appeal:

1. The trial judge erred in her instruction to the jury on the principle of reasonable doubt;
2. The trial judge erred in admitting statements that the appellant made to a police officer at the time of his arrest.

III: Analysis

(1) The reasonable doubt instruction

[12] This issue can be dealt with in briefer form than might usually be the case because of the somewhat unique circumstances in which it arises. Put simply, the same issue has been addressed by this court – twice.

[13] In her charge to the jury about reasonable doubt, the trial judge said:

A reasonable doubt is a real doubt that logically arises from the evidence, or the lack of evidence. It is a doubt based on reason and common sense after considering all of the evidence as a whole. It may be a doubt created by an inference or conclusion that you have drawn from the facts as you find them, provided that that inference of or conclusion is not a speculation or a guess, but a much stronger belief arising from the proven facts, and based on the evidence alone.

If your doubt is about something that you have imagined or made up, or if it is a far-fetched doubt, then it is not a reasonable doubt. If it is a doubt based on sympathy or prejudice, then it is not a reasonable doubt. It must be a doubt about an essential element of the offences charged, and it must arise from the evidence.

It is not enough for you to believe that Warren Mann is probably or likely guilty in respect of a particular charge. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. If you think that he is probably or likely guilty, you must find him not guilty, because Crown counsel would have failed to satisfy you of his guilt beyond a reasonable doubt.

You should also remember, however, that it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard that is impossibly high for the Crown to prove.

If, at the end of the case, after considering all of the evidence, you are sure that Warren Mann committed an offence, you should find him guilty of it, since you would have been satisfied of his guilt of that offence beyond a reasonable doubt.

If, at the end of the case, based on all of the evidence or lack of evidence, you are not sure that Warren Mann committed an offence, you should find him not guilty of it, since you would not have been satisfied of his guilt beyond a reasonable doubt. [Emphasis added.]

[14] The problem arises with respect to the portions of the instruction that I have underlined above. With the exception of the substitution of the word “belief” for “conclusion” in the third sentence of the first paragraph above, the wording is identical to instructions that this court has twice before found to be erroneous, requiring a new trial: R. v. Darnley, 2020 ONCA 179, 387 C.C.C. (3d) 200, at paras. 32-36, and R. v. Brown, 2018 ONCA 1064, at para. 15.

[15] The error is set out by Paciocco J.A. in Darnley at paras. 33-36, where he said:

First, a reasonable doubt need not arise from the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 28. It can arise from the absence of evidence, from what the Crown has failed to prove: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 36.

Moreover, an inference need not arise from "proven facts", which is "a standard that is never applicable to an accused": R. v. Robert (2000), 143 C.C.C. (3d) 330, at para. 17 (Ont. C.A.). This is because a reference to "proven facts" suggests an obligation to establish those facts to a standard of proof, yet a reasonable doubt can arise from evidence that, while not proven to be true to any standard of proof, has not been rejected.

It is also incorrect to link a reasonable doubt to a "conclusion" drawn from the facts. An acquittal need not be based on a conclusion about innocence but can rest on an inability to conclude guilt.

It is also an error to suggest that an exculpatory inference must be "a much stronger conclusion" than a speculation or guess. That language imports the need for a strong inference, when an exculpatory inference relating to a required element of the offence need merely raise a reasonable doubt: Villaroman, at para. 20.

[16] As I have said, the only difference between the instructions here, and the instructions in these two earlier cases, is the substitution of the word “belief” in the third sentence. That change does not cure the error identified. The effect of the instructions is still to essentially reverse the onus. It places a burden on the accused to prove something from which a reasonable doubt could arise – a burden that is not placed upon any accused and one that is inconsistent with the presumption of innocence.

[17] In response, the respondent asserts that the problem in this instruction is alleviated when the instructions are reviewed as a whole. The respondent adds that the problem is further alleviated because the proper instruction on reasonable doubt was given to the jury at the outset of the trial.

[18] That submission fails on two fronts. First, the same argument was expressly rejected in Darnley, where Paciocco J.A. said, at para. 38:

There is no force in the Crown's contention that these errors lose their significance when the jury charge is read as a whole. Errors relating to the burden and standard of proof may not be reversible "if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply" (emphasis added): R. v. W.(D.), [1991] 1 S.C.R. 742, at p. 758. This is not a case for inferring that these errors did not confuse or mislead the jury. [Emphasis in original.]

[19] The other is the fact that the final instructions were given to the jury in hard copy. Consequently, if the jury had any reason to revisit the instruction on reasonable doubt, we can safely assume that they would have had reference to the hard copy instructions that they had, not their recollections from the opening of the trial some 25 days earlier.

[20] Unfortunately, the error in the instructions undermined both the presumption of innocence and the burden of proof. It is a fundamental error that gives us no alternative but to set aside the convictions and order a new trial.

(2) The s.10(b) issue

[21] While the resolution of the first issue is sufficient to dispose of the appeal, I will address the second issue since it will likely arise at a new trial. Since the matter has been fully argued, it does not make any sense to leave the issue hanging without resolution. To do otherwise, does a disservice to counsel and the trial judge at the new trial.

[22] The appellant was arrested at the scene without incident. The officer who arrested the appellant immediately turned him over to two other officers. It is while the appellant was in the custody of these two officers that he made the impugned statements.

[23] The statements began after one of the officers asked the appellant whether he had been stabbed. There was blood on the appellant and, as the trial judge found, it was reasonable for the officer to make this inquiry. After answering "no" to the question of whether he had been stabbed, the evidence of the officer was that the appellant spontaneously stated that he was planning to kill himself with a knife that night, but it was too dull. He said that the knife was in the centre console of his vehicle that was parked outside of the residence, and that there was also a suicide note.

[24] In contrast, the other officer said that the appellant’s utterances began while the officers were walking with the appellant out of the residence and continued on their way to the police car. His evidence was that the appellant made the following statements: "she just pissed me off'; "I just lost it on her"; "I just snapped"; and "I tried to commit suicide tonight with my knife but it wasn't sharp enough. I tried it on my hands."

[25] Upon being placed in the police cruiser, the appellant was told by the first officer that he was under arrest for aggravated assault and was provided with the rights to counsel and cautioned, in standard format. The appellant indicated that he understood each of these items of information, and responded that he had no lawyer in Barrie, but that he would speak with duty counsel.

[26] The trial judge found that the appellant’s utterances were made in violation of his s. 10(b) Charter rights. She found that the appellant was not given his s. 10(b) rights at the first opportunity. In particular, the trial judge found that the first opportunity was not when the appellant was placed in the police cruiser, as between five to ten minutes had elapsed between his detention and the time that the appellant was removed from the home. No appeal is taken from that conclusion by the trial judge.

[27] Having found a s. 10(b) breach, the trial judge then considered whether the evidence ought to be excluded under s. 24(2). She concluded that it should not. The appellant says that the trial judge erred in her s. 24(2) analysis. I agree.

[28] The trial judge addressed the three factors from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. On the first factor, she concluded that the breach was “not deliberate, or of such seriousness that the court should seek to disassociate itself.” On the second factor, the trial judge found that the impact on the appellant’s rights was “tempered significantly” because the appellant had made “more serious, self-incriminating” remarks in the 911 call. On the third factor, the trial judge found that, while the exclusion of the evidence “would not significantly undermine the prosecution’s case”, the evidence was “highly relevant” to the issue of intent and thus inclusion of the evidence was favoured.

[29] In my view, the trial judge erred in her analysis of all three of the Grant factors. First, as found by the trial judge, the officers delayed in providing the appellant with his rights to counsel. The fact that the officers did not do so deliberately does not lessen the nature of the breach. It simply does not aggravate it. The officers did not offer any explanation for the delay. The crime scene was being adequately handled by the many other officers who were on scene (including two sergeants) and the victim was being treated by paramedics.

[30] The right to counsel is an extremely important right. Persons who are detained by the police may need immediate advice and counsel. As explained by McLachlin C.J. and Charron J. writing for the majority in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para 41: “[a] situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected.” And, as Doherty J.A. observed in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 34: “[t]he effective implementation of the right to counsel guaranteed by s. 10(b) depends entirely on the police.”

[31] It is not up to the police to decide when they will get around to providing rights to a person whom they have arrested. The failure of the police to understand this basic proposition is a serious matter and must be treated as such when it is breached.

[32] Second, the breach of a person’s rights, and the extraction of utterances from that person, is not “tempered” by the fact that the police have other evidence of a similar type, properly obtained. The fact remains that the police have extracted potentially incriminating evidence in violation of a guaranteed right. The maxim “no harm, no foul” has little place in the assessment of a violation of constitutionally protected interests. I would note that, both in the final instructions to the jury, and in the Crown’s closing submissions, the admitted utterances were given prominence.

[33] Third, the trial judge’s analysis of inclusion versus exclusion is inconsistent with her earlier analysis of the importance of the evidence. Having lessened the impact of the evidence obtained under the second Grant factor, the trial judge then reversed course in finding that the evidence was “highly relevant” under the third Grant factor. The fact is that the evidence was not necessary to the prosecution’s case and this fact argued in favour of its exclusion.

[34] I would set aside the trial judge’s decision regarding s. 24(2) and exclude the evidence from any new trial.

Conclusion

[35] Unfortunately, both errors that I have discussed infected the fairness of the trial. A new trial is required. I would allow the appeal, set aside the conviction on attempted murder and the finding of guilt on aggravated assault, and order a new trial on both offences.

Released: February 19, 2021 “KF”

“I.V.B. Nordheimer J.A.”

“I agree. K. Feldman J.A.”

“I agree. M. Tulloch J.A.”

[1] There was also a finding of guilt for aggravated assault but that finding was stayed on the principles set out in R. v. Kienapple, [1975] 1 S.C.R. 729.