COURT OF APPEAL FOR ONTARIO DATE: 20230327 DOCKET: C66237
Tulloch, Lauwers and Coroza JJ.A.
BETWEEN
His Majesty the King Respondent
and
Dorothy Groves Appellant
Counsel: Adriel Weaver, Karen Symes, and Erica Cartwright, for the appellant Tracy Kozlowski, for the respondent
Heard: June 23, 2022
On appeal from the conviction entered on July 8, 2016, and the sentence imposed on September 29, 2016, by Justice Alexander Sosna of the Superior Court of Justice, sitting with a jury.
Coroza J.A.:
I. INTRODUCTION
[1] On July 28, 2012, the appellant, Dorothy Groves was in George MacKenzie’s apartment. She stabbed him in the chest causing his death. After killing Mr. MacKenzie, she left the apartment with items she stole. She later traded some of the items for crack cocaine, which she shared with a fellow drug addict. There were no witnesses to the stabbing.
[2] At the beginning of her trial, and in front of the jury, the appellant admitted to causing Mr. MacKenzie’s death and pleaded not guilty to second degree murder but guilty to manslaughter. Her plea was rejected by the Crown, and the trial continued. The appellant was convicted by the jury of second degree murder on July 8, 2016. She was sentenced by the trial judge to life imprisonment on September 29, 2016, without parole eligibility for 13 years. She now appeals her conviction and sentence.
[3] The appellant asks this court to quash her conviction for murder and order a new trial. She raises two issues on the conviction appeal:
- The trial judge erred in finding that a statement made by the appellant to a special constable in the holding cells during a break in the trial was voluntary and admissible; and
- The trial judge erred in his charge by failing to instruct the jury on the two separate forms of accident and in doing so, left the jury with the impression that the defence of accident could not reduce murder to manslaughter.
[4] Should her conviction appeal fail, the appellant argues that the trial judge erred in imposing a sentence of 13 years’ parole ineligibility. The appellant seeks a reduction of parole ineligibility to 10 years.
[5] For the reasons that follow, I would dismiss the appeals.
II. BACKGROUND FACTS
A. The Appellant
[6] At the time of the offence, the appellant was 40 years old. She was unemployed, lived on the streets of Peterborough, and periodically supported herself through panhandling, sex work, and payments through the Ontario Disability Support Program.
[7] The appellant is diagnosed with an intellectual disability. She has significant problems with adaptive functioning and is not a sophisticated individual. The appellant also suffers from substance addiction. She has a long and significant criminal record and has no history of formal employment.
B. The Deceased
[8] At the time of his death, the deceased, Mr. MacKenzie, was 66 years old. He had suffered a stroke which caused impairment to his left side. He lived independently but was assisted by his sister and daughter who would bring him groceries, alcohol, and cigarettes.
[9] Mr. MacKenzie was an acquaintance of the appellant. The appellant had visited him in the past. She had cooked for him, eaten with him, and consumed alcohol with him on prior occasions. He told his sister that he enjoyed spending time with the appellant.
[10] The week prior to his death, Mr. MacKenzie called the police and reported the appellant as being an unwanted person in his residence because she was taking cigarettes and alcohol. No charges were laid.
C. July 28, 2012 – The Night of Mr. MacKenzie’s Death and Subsequent Events
[11] Mr. MacKenzie was killed by the appellant during the evening of July 28, 2012. He suffered a single stab wound to the chest, six centimetres in depth, that cut across an artery and penetrated his right lung.
[12] The appellant remained in the apartment while Mr. MacKenzie bled to death, making no effort to help him or call for assistance. She then took whiskey, beer, and some personal property from the victim’s apartment.
[13] Later that evening, the appellant was seen by Mr. MacKenzie’s neighbours who knew her. Her clothes were in disarray, and she had smears of what appeared to be fresh blood on her face and chest. Several witnesses testified that the appellant appeared intoxicated.
[14] The appellant then went to the home of Ingrid McConnell, who testified that the appellant asked her for a change of clothing. The appellant informed Ms. McConnell that she had robbed and killed somebody with whom she had been drinking. The appellant’s bloodied clothes were later found in a garbage bag outside Ms. McConnell’s home. Testing revealed a DNA profile matching Mr. MacKenzie’s was on it.
[15] The appellant then went to an apartment shared by Stephen Marshall and Michelle Kendrick. Ms. Kendrick testified that the appellant told her that she had just killed somebody.
[16] Two days later, on July 30, 2012, the appellant went to the police station and was interviewed regarding Mr. MacKenzie’s death. The appellant was cautioned and informed of her right to counsel. She denied any involvement or knowledge of Mr. MacKenzie’s murder.
[17] The appellant was arrested on August 2, 2012.
D. The Trial
[18] The appellant admitted that she unlawfully caused Mr. MacKenzie’s death and in front of the jury, pleaded not guilty to second-degree murder but guilty to the offence of manslaughter. Crown counsel (not Ms. Kozlowski) rejected the plea.
[19] Extensive evidence was adduced at trial. The Crown called 19 witnesses and the defence called 8 witnesses. The appellant did not testify in her defence. Five witnesses were qualified as experts.
[20] On April 7, 2016, the second day of trial, the appellant was taken to the holding cell for lunch. While there, the appellant spoke with Special Constable Higley, a female escort officer who was assigned to monitor the cells. Their conversation lasted for 11 minutes. The appellant told Cst. Higley that she wanted to kill Mr. MacKenzie but did not think it would happen when it did. The appellant stated that she stabbed Mr. MacKenzie with a backward motion when he was behind her and panicked after doing so. Cst. Higley then asked the appellant if she tried to help Mr. MacKenzie, and the appellant replied that she did not. She was panicked and watched him die. The entire conversation was captured by the holding cell monitoring camera, but no audio was recorded.
[21] After a voir dire, the trial judge ruled the conversation admissible. The Crown called Cst. Higley to testify about this conversation before the jury and this evidence became the focal point of the trial.
[22] At trial, the defence’s position was that the appellant did not have the requisite intent required for a murder conviction when she stabbed Mr. MacKenzie. The defence argued that the evidence supported this position: the appellant told Cst. Higley that she did not mean to kill Mr. MacKenzie; she did not have a motive to kill Mr. MacKenzie; the appellant was intoxicated and had an intellectual disability; and the forensic evidence was consistent with a single stab wound of only one-third of the length of the blade and there was no indication of defensive wounds on Mr. MacKenzie’s body.
[23] Experienced defence counsel put it this way in his closing address:
Let me make this perfectly clear. Take your pens and papers out and write this down if you'd like. Dorothy did not mean to kill George MacKenzie. Dorothy did not mean to hurt George MacKenzie. Dorothy is not guilty of murder. Three months ago today, on April 4, Dorothy pleaded not guilty to second degree murder but guilty to the lesser and included offence of manslaughter. It was the starting point of this trial and it should be the end point as well. That is our unqualified position. She should be found guilty of manslaughter. As you know, her plea was not accepted by our Crown counsel, and His Honour, as he is obliged to do, entered a plea of not guilty and you were selected as a jury to decide this case. [Emphasis added.]
[24] For its part, the Crown’s theory was that the appellant intended to kill Mr. MacKenzie, as evidenced by her statement when the appellant admitted to Cst. Higley: “I wanted to kill him but I didn’t think it was going to happen when it did.” The Crown also pointed out that appellant waited for MacKenzie to die before she left his apartment.
III. ANALYSIS
ISSUE 1: Whether the trial judge erred in finding that the appellant’s statement to Cst. Higley was voluntary and admissible?
[25] At the voir dire, Cst. Higley testified that she observed that the appellant was emotional and upset, and she asked her why she was crying. The appellant responded that she was upset because only Mr. MacKenzie’s family attended court and she felt alone. She also told Cst. Higley that she was scared that she was going to jail for the rest of her life. Cst. Higley asked her why she thought that, and the appellant responded that it was because she was going to be found guilty of second degree murder since her manslaughter plea was not accepted.
[26] As indicated above, Cst. Higley testified that the appellant then stated that she wanted to kill Mr. MacKenzie but did not think it would happen when it did. The appellant said Mr. MacKenzie had “pissed her off”. The appellant said that she had told Mr. MacKenzie that she could stab him in two ways. Demonstrations of the two ways are visible on the video recording of the conversation. The appellant said she stabbed Mr. MacKenzie with a backward motion when he was behind her and panicked after doing so. Cst. Higley then asked the appellant if she tried to help Mr. MacKenzie, and the appellant replied that she did not. She was panicked and watched him die.
[27] Cst. Higley did not take notes during the conversation, nor did she caution the appellant. Cst. Higley later reduced her conversation with the appellant to writing and then created an electronic copy in the form of a will-say statement.
[28] The appellant testified on the voir dire and confirmed the accuracy of several portions of Cst. Higley’s account of the conversation. A significant part of her testimony is set out below:
Q. Okay, and you indicated to me that part of you hope that maybe that telling her that it was an accident, that would get back to George MacKenzie’s family? A. Yeah. Q. Okay, and... A. And that I’m very remorseful for what happened and that still stands. Q. Okay, and you were hopeful that part of that would maybe get back to myself to consider, from Leigh Higley? A. Yeah, yeah. Q. Right, and I mean, we’ve already covered that. You knew when she came back with your coffee and your tampon, having warmed it up, having the keys on her, being at your cell door, you knew who she is? A. I know but I, but I wasn’t in the proper state of mind at the time, that’s why I felt I could confide in her. Q. Okay, well at some point in the conversation you say you stopped yourself and you go I should stop talking but you don’t? A. Exactly. Q. Okay, pretty early on I’m guessing? A. I can’t say that for sure, I don’t recall. Q. It’s not like Higley was sort of hiding her identity from you and… A. No, oh, no. Oh, no. Q. Okay wasn’t pretending she was somebody… A. No. Q. Else? A. No. Q. Okay. So you always knew who she was, that she was a special constable… A. Yes. Q. …but it was somewhere in the conversation that the penny dropped for you and you said, oh, I should shut up? A. Yeah… Q. Okay. A. …like I’ve never – like I’ve seen Ms. Higley quite often but I’ve never talked to her very often. Like, she’s never done certain things for me like she has the three times prior that I talked to her. Q. Okay. Never in this conversation did you says to Leigh Higley, I’m not talking to you anymore, I’m done? A. I did not… Q. Okay. A. …when I know I should have. Q. Okay, and when you said you know you should have, it’s because you know that’s something that you can say to the police, I’m not talking to you, you know you can say that? A. Yeah, exactly. Q. Okay. You know you have that right? A. Yeah.
[29] In sum, the appellant testified she was upset and wanted to get things off her chest when she gave Cst. Higley details about the circumstances of Mr. MacKenzie’s death. At some point in the conversation, she realized she should stop talking but did not. She testified that she knew Cst. Higley was a person in authority and was aware that what she was saying to her would be reported to Crown counsel. In fact, she hoped that her remorse would be conveyed to Crown counsel.
[30] The trial judge ruled that the statement was voluntary and admissible. He found that despite her emotional upset and cognitive impairment, the appellant had an operating mind – she knew who she was speaking with and the consequences of her conversation:
In the present matter, Groves testified she was fully aware that she was speaking to a person in authority. Higley was uniformed with shoulder epaulettes, identifying herself as a special constable. Groves further acknowledged that she was aware that anything she said would be reported by Higley to Crown Counsel. Groves testified she was upset and wanted to get things off her chest when detailing the circumstances surrounding MacKenzie’s homicide.
I find, despite her emotional upset and cognitive impairment, Groves had an operating mind. She knew to whom she was speaking, what she was saying and the consequences of her conversation. […]
[31] An assessment of the voluntariness of a statement requires a contextual consideration of any whether there were threats or promises, oppression, an operating mind, or other police trickery: R. v. Oickle, 2000 SCC 38, 147 C.C.C. (3d) 321, at paras. 69-71. The approach to be taken by an appellate court in its assessment of a trial judge’s finding of voluntariness was recently restated by the Supreme Court of Canada in R. v. Tessier, 2022 SCC 35, at para. 43:
A finding of voluntariness calls for deference unless it can be shown that it was tainted by a palpable and overriding error. An appellate court may only intervene where the error is overriding and determinative in the assessment of the balance of probabilities with respect to that factual issue. The standard of review associated with the finding of voluntariness is tied to the idea that the analysis under the confessions rule must be a contextual one in which bright line rules are few. Where the law is properly understood and the relevant circumstances considered, the trial judge is best placed to measure that context and make the relevant findings. [Citations omitted.]
[32] In this case, the only issue before the trial judge was whether the appellant had an operating mind. The appellant argues the trial judge’s ruling is tainted by palpable and overriding error with respect to that issue. In support of this claim, she makes two submissions.
[33] First, the appellant submits that to have the capacity for an operating mind, the accused must possess a sufficient degree of cognitive ability to understand what he or she is saying and to comprehend that the evidence may be used in proceedings against the accused. The appellant argues that the evidence before the trial judge was that the appellant became aware of the circumstances of her jeopardy at “some point” in the conversation but was not aware of the implications of her utterances at the outset. The appellant argues that, based on the video, the incriminating statement was blurted out a full minute before the appellant had a contemporaneous awareness of what was at stake. According to the appellant, she did not, until that point, appreciate that everything she was saying to Cst. Higley would be communicated to Crown counsel. The appellant submits that the trial judge should have recognized this.
[34] I reject this submission. The test for an operating mind requires proof that the accused was capable of making a meaningful choice to speak and that choice was not improperly influenced by state action: Tessier, at para. 51. In my view, the trial judge’s ruling is fully supported by the evidence and I see no misapprehension of that evidence. Before making the statement, the appellant knew that she was speaking to a person in authority. Cst. Higley was in uniform. Indeed, Cst. Higley had spoken with appellant on multiple occasions, and the two had even communicated before the 2016 trial proceedings because of the appellant’s previous involvement in the justice system. [1] The appellant was fully aware that Cst. Higley might pass on her remarks to the Crown and that her conversation would eventually be before the court. In short, on the day in question, the appellant spoke to Cst. Higley because she felt remorseful about Mr. MacKenzie’s death and wanted Cst. Higley to convey that remorse to Mr. MacKenzie’s family and Crown counsel in the hope that it might help her.
[35] Second, the appellant argues that the trial judge effectively ignored the circumstances of the interaction between Cst. Higley and the appellant. The appellant was emotionally distraught and had a cognitive impairment. She was interacting with someone with whom she believed she had a friendly relationship, someone with whom she had to interact with to get her basic needs met. She argues that there was nothing in the conversation with Cst. Higley that would have indicated what was at stake for her in making the disclosure. The conversation between Cst. Higley and the appellant was not an interview, Cst. Higley was not taking notes. Nor did she caution the appellant, which, while not dispositive, raises a reasonable doubt as to whether the appellant had an operating mind.
[36] I do not accept this submission. The trial judge found that, despite the appellant’s emotional upset, she had an operating mind. Nor did the trial judge err in finding that, despite her cognitive impairment, the appellant knew that if she spoke to a person in authority anything she might say might be used against her. The trial judge referred to the evidence that when the appellant was interviewed on July 30, 2012, by another police officer in relation to the case, she cut short the caution that was being provided to her at that time and advised that she was aware she was being questioned by the police and understood that anything she might say could be used against her. The trial judge found that the absence of a caution given by Cst. Higley was not fatal to the admissibility of the appellant’s statement. The absence of a caution is not determinative of voluntariness: Tessier, at para. 72. Instead, proof that an accused was subjectively aware of the consequences of speaking is powerful evidence that the absence of a caution did not undermine voluntariness. This is because the accused has the information necessary to choose whether to speak or remain silent: Tessier, at para. 88. On the appellant’s own evidence, she knew who she was talking to and the consequences of her speech. In these circumstances, the trial judge properly found that the absence of a caution was not determinative of the voluntariness of the appellant’s statement.
[37] I see no basis to interfere with the trial judge’s conclusion that the appellant’s statement to Cst. Higley was voluntary and would defer.
ISSUE 2: Whether the trial judge erred in failing to instruct the jury on the issue of accident?
[38] During her closing address, Crown counsel stated that the main issue in this case was intent. Crown counsel stated that if the jury believed Cst. Higley’s testimony that the appellant said to her, “I wanted to kill him but I didn’t think it was going to happen when it did”, then that was the appellant’s intent and the jury must find her guilty of murder.
[39] In discussing the appellant’s statement to Cst. Higley, the Crown attempted to argue that the appellant’s account that the death came about through a demonstration of a way to stab the victim gone wrong was “simply absurd”. Crown counsel described the defence suggestion that this was “some sort of accident” as not “an accident at law”. In that context, defence counsel objected to the Crown’s following statement:
“Suggesting an accident, a complete defence at law, is completely incompatible with a plea to manslaughter, completely incompatible with an admission to causing the unlawful death. Why are they incompatible? Because there was no accident. That's not how it happened. That's what you cannot believe from her statement to Leigh Higley.” [Emphasis added.]
[40] After the closing addresses, and during the pre-charge conference, defence counsel argued that the Crown had misstated the defence position and the law. The defence position at trial was that accident could negate the mens rea of murder and that there was nothing incompatible with accident and the appellant’s attempt to plead guilty to manslaughter at the outset of the trial.
[41] Defence counsel specifically asked the trial judge to instruct the jury using David Watt’s Final 61-B instruction: see David Watt, Watt’s Manual of Criminal Jury Instructions, (Toronto: Thomson Canada, 2005) (Final 61-B – Accident (Unintended Consequences). Justice Watt suggests the following model instruction:
Final 61-B Accident (Unintended Consequences)
[1] ( NOA ) admits that s/he ( describe relevant conduct ), but says that s/he is not guilty of ( specify ) because s/he did not intend (specify relevant consequence). To be more specific, ( NOA ) claims that s/he did not mean to (specify relevant consequence).
[2] ( NOA ) does not have to prove that ( specify relevant consequence ) was accidental. It is up to Crown counsel to satisfy you beyond a reasonable doubt that ( specify relevant consequence ) was not an accident.
[3] To determine what ( NOA ) meant to do when s/he ( describe briefly relevant conduct ), you must consider all the evidence. [Emphasis in original.]
[42] Ultimately, the trial judge provided the jury with the following instruction on the issue of accident:
The position of the defence is there may have been an intent but it did not crystallize there. Dorothy Groves demonstrated the two ways she could do it, not would do it. You have the video. You have the description. I could do it this way and this way. I told him I could again, this was in quotation marks. "I told him I could do it this way", end of quote, in the video demonstrating a forward motion with her arm and hand closed, or quote, again quote, "Or this way", and demonstrating a backward "or this way", end of quote, demonstrating a forward motion with her arm and hand closed, and hand closed "or this way". Now, Ms. Groves then says, immediately, there is no suggestion from Ms. Higley that there is a gap, there is any questions, we have a quote, "And that's when I stabbed him when he was behind me", quote, end of quote.
The defence position is no. This was a demonstration. Perhaps a stupid demonstration but it was no more than that. In other words, the issue of accident arises. Accident can reduce, if you are satisfied beyond a reasonable doubt, that the intent has not been proven, now don’t forget the defence has admitted Dorothy Groves caused Mr. MacKenzie’s death, unlawfully caused his death, and defence of accident can reduce the charge of murder to manslaughter”. [2]
Dorothy Groves does not have to prove accident. Dorothy Groves does not have to prove anything.
[43] The defence of “accident” is used in two senses in the law: an unintended act or an unintended consequence. The first has to do with the actus reus element of a crime: an unintentional act, in contradistinction to an intentional act. The second relates to the mens rea of a crime, where an accused says that they did not intend the consequence of their conduct: R. v. Aristor, 2022 ONCA 719, at para. 20; R. v. Mathisen, 2008 ONCA 747, 239 C.C.C. (3d) 63, at para. 70; R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at para. 106. Accident as an unintended act is a complete defence, while accident as an unintended consequence is not.
[44] The appellant argues that the trial judge was required to provide the jury with clarity about the precise legal meaning of the two forms of accident in order to ensure that the jury was not misled into thinking that accident, as used by the defence, was incompatible with the plea of guilty to manslaughter and the appellant’s admission that she committed an unlawful act that caused the Mr. MacKenzie’s death. The appellant argues that the charge to the jury compounded the misleading effect of the Crown’s closing address. The appellant asserts that the Crown’s closing and the trial judge’s charge misled the jury into thinking that if they were satisfied that the stabbing was not accidental it could not reduce the offence of murder to manslaughter.
[45] I am not persuaded by this argument.
[46] I begin with the uncontroversial observation that the trial judge’s charge must be read in light of the entire trial and a trial judge’s obligation to decant and simplify the law for the jury: R. v. Goforth, 2022 SCC 25, 415 C.C.C. (3d) 1, at paras. 21-22. Trial judges are required to separate the wheat from the chaff in determining which defences are applicable, and avoid unnecessary, inappropriate, and irrelevant legal instruction that might divert the jury’s attention from the disputed issues: R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 52.
[47] Although the parties referred to the term “accident” in their closing submissions, this case was never argued as a case of an accidental act. It was always framed as a case of the appellant’s intent. The jury charge made it clear that if the jury was not satisfied that the appellant had the intent to commit murder, then they were required to consider whether or not the appellant was guilty of manslaughter. This was not a case where the defence argued that the appellant did not have the volition to commit the unlawful act that resulted in the Mr. MacKenzie’s death. The opposite is true. The appellant pleaded guilty and admitted in front of the jury that she had committed an unlawful act that had caused the victim’s death.
[48] There are several instances in the closing address where defence counsel reminded the jury of this fact and accordingly, the only issue was of intent. For example, at the outset of the defence’s closing submissions, counsel stated:
This case has always been about one thing; what was in Dorothy Groves' mind when she stabbed George McKenzie on July 28, 2012. To the extent that we could, we have been saying, over and over, that intent is the only issue in this case. That Dorothy's intent is the only question you have to answer.
[49] Defence counsel made clear that the defence’s “unqualified” position was that the appellant should be found guilty of manslaughter. He explained to the jury the elements of manslaughter. He stated that the questions of whether the appellant caused Mr. MacKenzie’s death and whether she did so by an unlawful act were not controversial – the appellant had made a formal admission saying she killed Mr. MacKenzie.
[50] Fairly read, this defence was about unintended consequences, and that defence is nothing more than an argument that the appellant lacked the mens rea for murder. This court cited with approval Watt’s Manual of Criminal Jury Instructions, at p. 780, that accident in the sense of an unintended consequence is best handled as part of the mental element of the offence charged: Mathisen, at para. 73.
[51] In my view, to instruct the jury as to the difference between an accidental act and accidental consequence would have confused the jury. Indeed, this is not what the defence counsel at trial asked the trial judge to do. Defence counsel was specifically concerned with the fact that the jury would be left with the impression that the defence of accident was incompatible with the appellant’s admission and plea of manslaughter and asked the judge to ensure that the jury was not left with that impression. Defence counsel submitted during the pre-charge conference:
If you’re not going to identify what Crown counsel said [in her closing] and how it’s not correct, then in our submission you have to specifically tell them that a defence of accident can reduce, can reduce – a defence of accident can exist even if they admit that they caused an unlawful act.
It’s [defence of accident] not incompatible with a plea to manslaughter.
[52] And that is what the trial judge did. Although the trial judge did not read the Final 61-B charge in Watt’s Manual of Criminal Jury Instructions verbatim, the instruction that was given contained the following elements:
- The defence position that there was no intent proven in her statement to Cst. Higley;
- The appellant admitted that she unlawfully caused his death;
- This was an accident that occurred during a demonstration and the defence could reduce the charge of murder to manslaughter;
- The jury had to be satisfied that she had the intent to commit murder to be convicted of murder; and
- The appellant had no obligation to prove that the death was accidental.
[53] In my view, there is nothing inconsistent with the charge that was given and the Final 61-B charge that is suggested in Watt’s Manual of Criminal Jury Instructions.
[54] Moreover, the trial judge quite properly directed the jury to the critical question litigated in this trial – whether the appellant had the state of mind required for murder:
The critical block is, did Dorothy Groves have the state of mind required for murder? That is the question of intent.
In other words, to prove that Dorothy Groves is guilty of second-degree murder, Crown counsel must satisfy you beyond a reasonable doubt that at the time she stabbed Mr. MacKenzie, at that moment, she either meant to kill Mr. MacKenzie or meant to cause Mr. MacKenzie bodily harm of such a grave and serious nature that she knew that the harm was likely going to kill him.
[55] There were thus two routes to conviction available to the jury. The trial judge explained that “intended to kill” was straightforward, but the language of intending to cause bodily harm did not mean that the appellant ought to have known that what she was doing was so grave and serious that it would likely have killed Mr. MacKenzie. The jury was also informed that it was insufficient to find that the appellant knew there was a danger that death would result from her actions. Rather, the appellant must actually have known that what she was doing would likely cause death. He also explained to the jury, as was requested by the parties, that the mens rea (intent) and the actus reus (act) had to come together.
[56] The trial judge then fortified this instruction by telling the jury that if it believed that at the time of stabbing Mr. MacKenzie, the appellant’s intent was to demonstrate how she could stab him but did not intentionally intend to kill him, then she must not be found guilty of murder. In carrying out their analysis, the trial judge instructed the jury to consider the appellant’s intoxication and cognitive impairment in this analysis.
[57] Finally, it is also important to point out that the trial judge told the jury that they had to accept the law from him and follow it without question. In my view, the trial judge’s instruction adequately equipped the jury to decide the key issue in this case – whether the appellant had the intent to kill Mr. MacKenzie.
[58] This was a case where the jury was clearly directed that if the appellant did not have the state of mind of murder, then she should be found not guilty of murder. The trial judge’s charge explained to the jury that accident could reduce the charge of murder to manslaughter if the Crown had not proven the intent required for murder. This effectively resolved the remarks by Crown counsel that accident was incompatible with a plea of guilt to manslaughter, and he reminded the jury that the defence had admitted that she had unlawfully caused his death. In my view, the charge does not disclose any misdirection.
IV. SENTENCE APPEAL
[59] Finally, the appellant argues that the trial judge erred in imposing parole ineligibility of the 13 years. During the sentencing proceeding, the Crown asked for parole ineligibility of 17 years while the appellant asked for 10 years. On appeal, the appellant renews her argument made at trial and seeks a reduction in parole ineligibility. She has provided this court with cases of a comparable nature, where lesser periods of parole ineligibility were imposed.
[60] The appellant’s primary complaint is that the trial judge improperly took into account the appellant’s criminal record as an aggravating factor but failed to consider the fact that the appellant’s intellectual disability contributed to that extensive criminal record.
[61] I am not persuaded by this submission. The trial judge explicitly noted that the appellant’s intellectual disability was a mitigating factor. He also noted that this intellectual disability contributed to the appellant not having the motivation to undergo counselling. However, the appellant had a significant criminal record – over 80 convictions between 1990 to 2012. While it is true that many of the convictions consisted of breaches of court orders which could be explained by the appellant’s intellectual disability, the trial judge could not ignore that the record contained several crimes of violence – the appellant had 14 convictions for violent offences such as robbery, assault causing bodily harm, assault with a weapon, and threating and assaulting a police officer. Further, when she was charged with Mr. MacKenzie’s murder, the appellant was on probation. Considered in that light, the record was aggravating.
[62] The trial judge also considered other factors in arriving at this disposition – the jurors recommended between 15 to 20 years of parole ineligibility and the impact on Mr. MacKenzie’s family. He also noted that it would be an error to ignore and not consider her intellectual disability to be a mitigating factor.
[63] This court will defer to the sentence imposed by the trial judge, absent a demonstrated error in law or principle, or a determination the sentence is demonstrably unfit: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11. The trial judge recognized that no two cases are the same, and the task he had to perform was fact sensitive and an individualized process. While there may be cases of murder where a 10-year parole ineligibility or less have been imposed, the trial judge concluded that this was not one of them. In my view, he arrived at a fit disposition, and I see no basis to intervene with the sentence imposed.
V. DISPOSITION
[64] For these reasons, I would dismiss the conviction appeal. While I would grant leave to appeal sentence, I would nonetheless dismiss the sentence appeal.
Released: March 27, 2023 “M.T.” “S. Coroza J.A.” “I agree. M. Tulloch J.A.” “I agree. P. Lauwers J.A.”
[1] The appellant had been in the holding cells of the Peterborough courthouse at least a few hundred times. [2] On appeal, the appellant sought to tender fresh evidence consisting of the audio recording of the trial judge’s charge to the jury on the issue of accident. The fresh evidence indicates that what the trial judge said to the jury differed from the transcript of the charge. The Crown did not object to the admission of this fresh evidence. Accordingly, we would admit this fresh evidence.