Court of Appeal for Ontario
Date: 20220517 Docket: C65151
Gillese, Lauwers and Brown JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Michael Laforme Appellant
Counsel: Richard Litkowski, for the appellant Kevin Rawluk, for the respondent
Heard: March 29, 2022 by video conference
On appeal from the conviction entered on March 1, 2016, and the sentence imposed on June 3, 2016, by Justice James A. Ramsay of the Superior Court of Justice, sitting with a jury.
Gillese J.A.:
[1] After a month-long jury trial, the appellant Mr. Laforme was convicted of the second-degree murder of Blake Nicholls. He was sentenced to life imprisonment with a 16-year period of parole ineligibility. He appeals against conviction and seeks leave to appeal against sentence.
[2] For the reasons that follow, I would dismiss his conviction appeal, grant leave to appeal against sentence, and dismiss his sentence appeal.
BACKGROUND
[3] Mr. Nicholls was an 81-year-old widower who lived next door to Kathy Carter, a woman in her fifties with whom he had an uncle/niece type of relationship. They were good company for each other and looked out for one another.
[4] Mr. Laforme met Ms. Carter in church in September 2013. She began helping him out and inviting him on errands. On one such errand on November 16, 2013, while shopping for pots and pans at Canadian Tire, Mr. Laforme stole car keys from an employee’s coat.
[5] Mr. Laforme wanted to marry Ms. Carter but she made it clear, on November 21, 2013, that she just wanted to be friends. Mr. Laforme was angry with Mr. Nicholls because he had warned Ms. Carter to be careful about Mr. Laforme.
[6] On November 23, 2013, Mr. Laforme stole the employee’s car from the Canadian Tire parking lot. He then either drove to Mr. Nicholls’ house or to his own home down the street and walked to Mr. Nicholls’ house where he beat Mr. Nicholls to death by administering 16 blows with a claw hammer and stomping on him, breaking his ribs. He then stole money from Mr. Nicholls’ trouser pocket and rinsed the blood off the hammer in the washroom sink in Mr. Nicholls’ home.
[7] Afterwards, Mr. Laforme went out and bought drinks for patrons at a bar. He then met with Mr. William Stevens, a local drug dealer. A bar patron, Mr. Barry Ryerson, gave evidence that while at the bar, Mr. Laforme bragged that he had “skinned a white man” that evening.
[8] Mr. Laforme took Mr. Stevens to Mr. Nicholls’ house to steal more of Mr. Nicholls’ property, most of which was sentimental and of little value. Two drops of Mr. Nicholls’ blood and some of his stolen property were found in the stolen Chevy Malibu that Mr. Laforme and Mr. Stevens drove that night.
[9] Mr. Laforme also visited Ms. Carter to tell her he was in love with her and was leaving to go out West because he couldn’t take it anymore.
[10] Later, while intoxicated, Mr. Laforme boasted about the murder to Mr. Stevens, embellishing it with a story about being a hitman.
[11] Mr. Laforme was arrested and taken off a bus on its way from Sudbury to Sault Ste. Marie. At the time of his arrest, he had, in his possession, some of Mr. Nicholls’ sentimental items and a ticket to Vancouver.
[12] The sole issue at trial was whether it was Mr. Laforme who murdered Mr. Nicholls. After a month-long trial, the jury convicted Mr. Laforme of the second‑degree murder of Mr. Nicholls.
[13] Six jury members made no recommendation about the parole ineligibility period, while six recommended 15 years. The Crown sought a period of ineligibility of between 15 and 18 years. The defence submitted that a period of 12 years was appropriate.
[14] Mr. Laforme was 64 years old at the time he murdered Mr. Nicholls and 69 at the time of sentencing. He is a registered member of the Mississaugas of the New Credit. A Gladue report set out details of Mr. Laforme’s difficult upbringing and struggles with alcoholism and drug use.
[15] The trial judge sentenced Mr. Laforme to life imprisonment with a 16-year period of parole ineligibility.
THE GROUNDS OF APPEAL
[16] Mr. Laforme appeals against conviction, arguing that the trial judge erred by:
(1) failing to assist the jury in clearly understanding the legal principles governing the factual issues and the evidence adduced at trial;
(2) drafting a jury charge that was unfair and imbalanced; and
(3) failing to warn the jury of the dangers of relying on post-offence conduct evidence.
[17] Mr. Laforme seeks leave to appeal against sentence and, if leave is granted, submits that the trial judge did not give meaningful effect to the Gladue principles, resulting in a sentence that was unduly harsh. He contends that a life sentence with a period of parole ineligibility of 13 years would be fit.
THE CONVICTION APPEAL
(1) The trial judge stated the relevant legal principles and properly related the evidence to the issues the jury had to decide
[18] The appellant makes two submissions on this ground of appeal. I will deal with each in turn.
[19] First, the appellant submits that the trial judge erred by failing to fully instruct the jury on the unlawful act and mental state elements of murder.
[20] This submission fails because it neglects to consider the charge in context.
[21] This was a single-issue trial – was it the appellant who murdered Mr. Nicholls? The parties’ joint position at the pre-charge conference was that Mr. Nicholls had been murdered and the available verdicts were guilty or not guilty of second-degree murder. In other words, there was no air of reality to the included offence of manslaughter.
[22] The charge was responsive to the parties’ joint position. The trial judge correctly summarized the essential elements of murder but did not go on to explain how the unlawful act or mental state elements could be established. There is no error in the trial judge’s approach because the parties had expressly agreed that those matters were not in issue. The trial judge focused on what was in issue: identity.
[23] Second, the appellant submits that the instruction was inadequate about the utterances that Ms. Carter; Angeline Clause, the appellant’s sister; Mr. Stevens; and Mr. Ryerson attributed to him. While the trial judge gave an instruction on the utterances, the appellant says it was inadequate because it did not refer to issues raised by that evidence.
[24] I do not agree. The trial judge referred to the evidence of Ms. Carter and Ms. Clause to support alternative explanations for his post-incident conduct. As for Mr. Stevens’ evidence, the trial judge gave a Vetrovec warning in language to which no objection was taken. And, the trial judge appropriately cautioned the jury about Mr. Ryerson’s evidence, noting that: a number of things Mr. Ryerson said were not borne out by other witnesses or his own previous statements; Mr. Ryerson went “out of his way” to paint the appellant in a “bad light”; and, while it was for the jury to decide, on the whole, Mr. Ryerson’s evidence “seems bizarre”.
(2) The Charge to the Jury was Fair and Balanced
[25] This ground of appeal rests on the trial judge’s obligation to ensure that the jury charge is fair and balanced in its recitation of the evidence and review of the positions of the parties; no party’s position at trial should be undermined or prejudiced through the jury charge: R v. Baltovich (2004), 73 O.R. (3d) 481 (C.A.), at paras. 113-15.
[26] The appellant submits that the trial judge breached this obligation because he “peppered the jury charge with his own opinions by positing unnecessary rhetorical questions and editorial comments that invited jury speculation and implied that gaps in the evidence were a failing of the defence.”
[27] I will deal first with the impugned comments and then with the alleged rhetorical questions.
[28] The appellant points to three comments in support of his contention that the trial judge took an unfair approach towards the defence. When discussing the essential elements of second-degree murder and the relevant evidence, the trial judge made the following statements.
(1) It also seems obvious that someone intended to kill Mr. Nicholls, or at least to cause him serious bodily harm that he knew was likely to cause death, and that the perpetrator was reckless as to whether death would ensue or not. Nothing else could reasonably be expected to result from 16 hammer blows to the head.
(2) No blood was found on any of Mr. Laforme’s clothing, or Mr. Stevens’ clothing, but both had time to change or wash by the time the police spoke to them.
(3) [W]as [Mr. Laforme] simply conscious of having possession of stolen property? Many people would not leave the Province just because they had possession of a bit of stolen property, but if they knew that the property came from someone who had been murdered and that therefore they could be suspected of murder they might, or they might not. [Emphasis added by the appellant.]
[29] I do not accept that these comments rendered the charge unfair or unbalanced. When considered in context, I see nothing objectionable in them.
[30] It is important to first situate the jury charge in context: R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at paras. 3, 32. This was a single-issue case. It was common ground that Mr. Nicholls had been murdered and there was no air of reality to the included offence of manslaughter. The sole question for the jury was whether the appellant had murdered Mr. Nicholls. There was no alternative suspect. The appellant did not testify, and the defence called no evidence. In his closing submission, defence counsel conceded that the appellant participated with Mr. Stevens in stealing items from Mr. Nicholls’ home and that the appellant was leaving town when he was apprehended.
[31] Further, trial counsel made no objection to the jury charge on the basis that the defence position was not fairly put or, indeed, on any other basis. While not dispositive, trial counsel’s failure to object to the charge is of “particular significance”: R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 146.
[32] In the first impugned comment, the trial judge says that death or serious bodily harm would reasonably be expected to result from 16 hammer blows to the head. Contrary to the appellant’s contention, I do not view that comment as mocking the plausibility of the defence case or expressing the trial judge’s personal conviction as to the guilt of the accused. To the extent that the appellant objects to this comment, at least in part, because the trial judge did not give an explanation of the state of mind for murder, he fails to recognize that the trial judge did not address the mental state elements because they were not in issue. Manslaughter was “not on the table”.
[33] Accordingly, I do not view the first impugned comment as objectionable.
[34] Nor do I view the second impugned comment as objectionable. It is a statement of fact. On the evidence adduced at trial, the appellant and Mr. Stevens had time to change or wash their clothing by the time the police spoke with them.
[35] Nor do I view the third comment as objectionable. It provided the jury with assistance in addressing a question that was very likely on their minds: if they found that the appellant was on his way “out West” when he was arrested, how were they to deal with the fact he had been found leaving the province shortly after Mr. Nicholls’ murder while in possession of property that had been stolen from Mr. Nicholls?
[36] Before making the third comment, the trial judge cautioned the jury that if they found the appellant was on his way out West when he was arrested, they were “not to conclude immediately that he did so because he was conscious of having committed the offence charged.” The trial judge instructed the jury to consider the matter in light of all the evidence, including evidence that offered another explanation. He referred to the evidence that the appellant was going out West to see his children and that he was in love with Ms. Carter and “could not take it anymore”. After that, the trial judge asked whether the appellant left the province so abruptly simply because he was conscious of having possession of stolen property. He framed this question with a further alternative: people who know that they possess property belonging to a murdered person might think that possessing this property could cause them to be suspected of murder. He concluded by instructing the jury to consider this evidence in light of all of the other evidence:
You must not use the evidence about Mr. Laforme’s trip in deciding he committed the offence charged, unless you reject any alternate explanation for it.
If you reject all alternate explanations, the trip may be considered a piece of evidence if you find that he left because he was conscious of having committed the offence with which he is charged. It is a piece of evidence to be considered with all the other evidence.
[37] I do not accept that the third comment is tantamount to the trial judge expressing his personal conviction as to the appellant’s guilt. It offered guidance to the jury on how to approach an issue that arose on the evidence.
[38] I turn now to the appellant’s contention that the trial judge “peppered” the charge with his own opinions by positing unnecessary rhetorical questions.
[39] The appellant points to the following questions in the jury charge as support for this contention:
(1) Did Mr. Nicholls neglect to wrap up the soup for some period of time, or was he killed before he had the chance? (2) Did [Mr. Laforme] have this property because he is the assailant, or did he receive or take it afterwards? (3) [O]n the evening of November 23rd [Mr. Laforme] was well dressed. He was buying drinks for people and going to the casino, he was giving rides in a car. Why that day? (4) The evidence … would make it open for you to find not only that Mr.forme stole the car but that he had arranged for the theft in advance. For what purpose?
[40] I accept that rhetorical questions are to be avoided in a jury charge. There is the danger that rhetorical questions “become simply a device to denigrate the defence; questions with obvious answers suggest that the trial judge does not believe the accused’s evidence”: R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503, at para. 46. They can be seen as the trial judge “taking up the Crown’s cause and casting off the mantle of objectivity”: Baltovich, at para. 146.
[41] However, not all questions in a jury charge are rhetorical. Rhetorical questions must be distinguished from questions posed that naturally arise on the evidence. Such questions “are a way to analyze and understand the evidence”: Ferrari, at para. 46; R. v. Wristen (1999), 47 O.R. (3d) 66 (C.A.), at para. 29, leave to appeal refused, [2000] S.C.C.A. No. 419.
[42] In the first question, the trial judge asks whether Mr. Nicholls neglected to wrap up the soup that Ms. Carter had brought him or whether he had been killed before he had the chance. I accept that this question may be seen as rhetorical, and it would have been better had it not been posed. While the first question may have been relevant to the timing of events surrounding the commission of the offence, it is not readily apparent how the question would help the jury to analyze and understand the evidence on that matter.
[43] It is also difficult to see how the third and fourth questions would assist the jury in analyzing or understanding the evidence.
[44] That said, the first, third and fourth questions cannot be seen as an indication that the trial judge did not believe the appellant’s evidence because the appellant did not testify nor call evidence, nor do those questions denigrate the defence position.
[45] The second question, however, is not rhetorical. The question posed by the trial judge, in reviewing the evidence on the appellant’s possession of the stolen property, served to assist the jury by reminding them that there could have been another explanation for why the appellant was leaving the province shortly after Mr. Nicholls’ murder (if so found by the jury), while in possession of property stolen from the deceased.
[46] In conclusion, considered within the context of the trial and the charge as a whole, the impugned comments and questions did not render the charge unfair or have the effect of shifting the burden of proof.
(3) No error in the post-incident conduct instruction
[47] The post-incident conduct instruction related to the appellant’s efforts to leave the province. The appellant makes two complaints about that instruction. First, he says that the instruction failed to relate the evidence to specific live issues before the jury. Second, he says that the trial judge erred by failing to warn the jury of the dangers of relying on post-offence conduct evidence, that the evidence only has an indirect bearing on guilt, and that the jury should exercise caution in inferring guilt.
[48] For the reasons given above, I do not accept that the trial judge failed to relate the evidence to specific live issues. On the contrary, his instruction canvassed the defence position on the matter, using language that had been approved by both Crown and defence counsel during the pre-charge conference.
[49] I agree with the appellant that post-incident conduct poses reasoning risks and that the jury must be told to consider alternative explanations for the post‑incident conduct. However, as I explain above, that is precisely what the trial judge did, in language approved of by both parties.
THE SENTENCE APPEAL
[50] I am not persuaded that the sentence appeal has merit.
[51] This is not a case where the sentencing judge failed to grapple with the Gladue report or to give meaningful consideration to the Gladue principles. After setting out those principles, the sentencing judge spent several pages of his reasons drawing the connection between Mr. Laforme’s life circumstances and their potential impact on his commission of the offence.
[52] Mr. Laforme had a significant criminal record, having been previously convicted of 50 offences, nine of which involved crimes of violence. Examples of the violent offences include the following. In 1976, Mr. Laforme was sentenced to a year in prison for assault causing bodily harm; in 1980, he was sentenced to two years less a day for wounding; and, in 1999, he was sentenced to seven years, on top of six months pretrial custody, for aggravated assault and armed robbery. Moreover, in April 2013 – just months before the offence in question – Mr. Laforme pled guilty to having struck his female roommate in the head, with a hammer. Because the complainant could not be located for trial, Mr. Laforme was sentenced, in accordance with a joint submission, to time served plus probation.
[53] While the sentencing judge recognized his obligations under Gladue, when establishing the period of parole ineligibility, he viewed the principles of denunciation and deterrence as dominant in the sentencing calculus, leaving little room for the application of the Gladue principles. He recognized that factors such as Mr. Laforme’s advanced age and the Gladue considerations augured in favour of a shorter ineligibility period. However, the brutality of the offence, which was committed with “gratuitous indignity”; the vulnerability of the victim; Mr. Laforme’s extensive criminal record; and, the degree of continuing danger he poses to society militated in favour of a longer period. After balancing the factors, the sentencing judge exercised his discretion and imposed a period of 16 years parole ineligibility.
[54] To the extent that the appellant also maintains that the parole ineligibility period renders the sentence manifestly unfit, I disagree. That period of parole ineligibility aligns with judicial precedent, including for Indigenous offenders: see, for example, R. v. Marshall, 2020 ONSC 5360, 468 C.R.R. (2d) 216, in which the period of parole ineligibility was fixed at 18 years for an Indigenous offender convicted of murder and R. v. Van Every, 2016 ONCA 87, 346 C.C.C. (3d) 381, where this court upheld a 16-year period of parole ineligibility for an Indigenous offender convicted of murder.
[55] I see no basis to interfere with the sentencing judge’s exercise of discretion in fixing parole ineligibility at 16 years.
DISPOSITION
[56] Accordingly, I would dismiss the appeal against conviction, grant leave to appeal against sentence, and dismiss the sentence appeal.
Released: May 17, 2022 “E.E.G.” “E.E. Gillese J.A.” “I agree. P. Lauwers J.A.” “I agree. David Brown J.A.”
