COURT OF APPEAL FOR ONTARIO DATE: 20240315 DOCKET: C62113
Doherty, MacPherson and Gillese JJ.A.
BETWEEN
His Majesty the King Respondent
and
Emmanuel Owusu-Ansah Appellant
Nathan Gorham and Breana Vandebeek, for the appellant Alexander Alvaro, for the respondent
Heard: January 11, 2024
On appeal from the conviction entered on May 28, 2015, and the sentence imposed on June 5, 2015 by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting with a jury.
MacPherson J.A.:
A. Introduction
[1] The appellant, Emmanuel Owusu-Ansah, was charged with the first degree murder of his former girlfriend, Bridget Takyi. His trial proceeded with a jury in the Superior Court of Justice in Toronto.
[2] The Crown alleged a planned and deliberate murder. The defence argued that the killing was in self-defence because Ms. Takyi stabbed the appellant in the leg just before he killed her.
[3] The jury acquitted the appellant of first degree murder but found him guilty of second degree murder.
[4] The trial judge imposed a sentence of life imprisonment with a parole ineligibility period of 22 years.
[5] The appellant appeals both the conviction and the sentence.
B. Facts
[6] The appellant began dating Ms. Takyi in late 2007. They dated off and on for about five years. They had two children but did not live together. In October 2012, Ms. Takyi ended the relationship.
[7] Between October 2012 and her death on January 19, 2013, the relationship between Ms. Takyi and the appellant was very strained. On two occasions, police were called to intervene.
[8] On October 20, 2012, the appellant went to Ms. Takyi’s apartment. He testified that he frequented her apartment because of their shared children and he was there to pick up some items. He used the key she had given him for entry which upset her. Police attended the scene and the appellant left. The appellant testified that soon after this event he began receiving anonymous threatening text messages in which the sender threatened to have the appellant locked up in jail or deported back to his home country.
[9] On December 3, 2012, during another episode at Ms. Takyi’s apartment, police were called after the argument turned physical involving a broom and a metal pot. This incident led to criminal charges against the appellant. He was released on bail with conditions, including a prohibition from contacting the victim and carrying a weapon. Despite this prohibition, the appellant made many attempts to contact Ms. Takyi in the ensuing weeks. Ms. Takyi feared for her safety and went into hiding from the appellant at a women’s shelter.
[10] On January 18, 2013, the appellant found Ms. Takyi. He photographed her and her two sons as they walked from her car to her mother’s apartment.
[11] The next day, January 19, 2013, the appellant lay in wait outside Ms. Takyi’s mother’s residence at about 4 a.m., knowing that Ms. Takyi would be leaving for work at about that time. There was an altercation, during which Ms. Takyi sustained 25 sharp force injuries at the hands of the appellant. He then poured gasoline on her lifeless body and set it on fire. After torching her body, he drove away from the scene and called several people using Ms. Takyi’s phone, including Ms. Takyi’s mother, and told them he had killed Ms. Takyi.
C. Issues
[12] The appellant raises four issues on the appeal:
(1) Did the trial judge’s repeated interjections raise a reasonable apprehension of bias and undermine trial fairness?
(2) Did the trial judge err in admitting prior discreditable conduct evidence?
(3) Was the trial judge’s instruction on provocation incorrect and inadequate?
(4) Was the sentence imposed unfit and premised on errors in principle?
D. Analysis
(1) The reasonable apprehension of bias issue
[13] The appellant contends that the trial judge made many comments during the testimony of several witnesses – especially the accused – and that these comments raised a reasonable apprehension of bias and undermined trial fairness.
[14] The core of the appellant’s factual submission on this issue is set out in this paragraph from his factum:
Throughout the proceedings, the trial judge interrupted and denigrated both the accused and his counsel in front of the jury. The trial transcripts demonstrate the unrelenting nature of these interventions. During cross-examination of Ms. Kyei-Bofah, the judge interjected 21 times; during cross-examination of Mr. Collin[s] Takyi, the judge interjected 11 times; during cross-examination of Mr. Prempeh, the judge interjected 11 times; and during cross examination of Dr. Pollanen, the judge interjected approximately 70 times. The interjections only increased when Mr. Owusu-Ansah testified. On a conservative estimate, the trial judge interjected 71 times.
[15] The test for assessing whether the interventions of a trial judge during a trial amount to a reasonable apprehension of bias was stated by Watt J.A. in R. v. Murray, 2017 ONCA 393, at paras. 95-97:
Appellate courts are reluctant to interfere on the ground that a trial judge improperly interfered during the course of a trial. A strong presumption exists that a trial judge has not intervened unduly at trial: R. v. Hamilton, [2011] O.J. No. 2306, 2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 29, leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 547, [2012] S.C.C.A. No. 166, [2012] S.C.C.A. No. 151, [2012] S.C.C.A. No. 46, 304 O.A.C. 398 n, 304 O.A.C. 397 n and 303 O.A.C. 395 n; Chippewas, at paras. 231, 243.
When undue intervention is advanced as a ground of appeal, the fundamental question for the reviewing court to determine is whether the interventions led to or resulted in an unfair trial. The issue is assessed from the perspective of a reasonable observer present throughout the trial: Hamilton, at para. 30; Stucky, at para. 72. The analysis is contextual and requires an evaluation of the interventions cumulatively, likewise their cumulative effect on the actual or apparent fairness of the trial: Hamilton, at para. 32; Stucky, at para. 72.
The question ultimately to be decided is whether the comments and interventions would create the appearance of an unfair trial to a reasonable person present throughout the trial proceedings. The analysis is not mathematical. And what is critical is what occurred in the presence of the jury. Events that took place in their absence, at least in most cases, cannot affect them or their decision: Valley, at p. 235 C.C.C.
[16] I would divide the trial judge’s comments during the examination of witnesses, and in the presence of the jury, into three categories – the appellant’s testimony, Dr. Pollanen’s testimony, and the testimony of three other witnesses.
(a) The appellant’s testimony
[17] The appellant testified over the course of three days. His testimony covers over 500 pages of trial transcript.
[18] My overall impression of the trial judge’s conduct during the appellant’s testimony is that, with three exceptions, he did not do or say anything that unduly interfered with the appellant giving his evidence or created any appearance of injustice. The vast majority of his interjections were entirely professional and benign. Most were attempts to keep on top of the very detailed questioning by defence counsel and Crown counsel. The appellant was testifying about different cell phone conversations and text messages with different people over different time periods. The trial judge had a copy of the relevant exhibits and many of his questions were aimed at making sure he was on the right conversation at the right time with the right people. Most of the questions were for clarification purposes. It is not surprising the questions were necessary. The vast majority of the questions were short, polite, and useful.
[19] However, three of the trial judge’s interventions during the appellant’s testimony, and with the jury listening, were, and remain, problematic.
(i) Criticism of the appellant’s counsel
[20] First, and worst, is what the trial judge said when the appellant’s counsel was asking him questions about possible deportation. The appellant had been arrested in early December 2012 for assaulting and threatening death against Ms. Takyi. Earlier he had received an anonymous text message threatening him with deportation for the way he was treating Ms. Takyi.
[21] Defence counsel raised this issue with the appellant during his testimony and the trial judge chose to intervene in the presence of the jury:
Q. Did you have any belief in the ability of the texter… A. Mhm-hmm. Q. … to do what the texter said he or she was going to do? THE COURT: I don’t understand. Obviously that person doesn’t deport anybody and there has to be proof in court and perhaps a, an actual sentence of more than six months, isn’t that the case? [DEFENCE COUNSEL]: I don’t know, I don’t practice immigration law, but what’s more important…. THE COURT: Yeah, but that was his belief. [DEFENCE COUNSEL]: Well that’s what I’m getting at, M’Lord. THE COURT: He’s gotta, he’s gotta go to jail, I don’t understand what you’re talking about. The texter has nothing to do with him, it’s the judge who imposes the sentence for a particular crime that the judge is convinced beyond a reasonable doubt has been committed. [DEFENCE COUNSEL]: My question is whether this gentleman believed that the person would be able to do it. That’s the question. It’s not whether the…. THE COURT: It’s a stupid question. [DEFENCE COUNSEL]: Pardon me, M’Lord? THE COURT: It’s a stupid question. [DEFENCE COUNSEL]: Could I have the jury excused please? THE COURT: No. [DEFENCE COUNSEL]: M’Lord. THE COURT: The texter has…. [DEFENCE COUNSEL]: With all due respect, this is a defense examination in-chief. THE COURT: That’s right. And the texter has no ability – whoever the texter may have been, to deport him. So let’s get on with it. [DEFENCE COUNSEL]: And that’s not the question that was asked. I did not ask Mr. Owusu-Ansah if the texter could do it, I asked him what his belief was in the ability of the texter to realize upon what he was threatening to do. That was… THE COURT: And I’m not…. [DEFENCE COUNSEL]: … the question. THE COURT: I’m not letting you put that question. Go ahead. Next. [DEFENCE COUNSEL]: What did you think would happen to you, sir? A. That I’d get deported if I get arrested and get convicted.
[22] When the trial resumed the following morning, and before the jury returned to the courtroom, defence counsel asked for a mistrial on the basis of the trial judge’s “denigration of counsel from the bench yesterday”. After defence counsel made a brief submission in support of his request, the trial judge did not call on the Crown to respond and ruled: “Motion denied. Next matter.”
[23] After the jury returned to the courtroom, the trial judge immediately said:
Let me say this before [the Crown] starts cross‑examination. Yesterday I characterized one of [defence counsel’s] many questions as being stupid. That was unfortunate. While the question was improper, I wish to apologize to him for using the wor[d] stupid. I should have used the wor[d] improper.
[24] The trial judge was dead wrong in referring to defence counsel’s questions as “stupid”. He was also wrong in referring to the question as “improper” in his correction/apology. Defence counsel’s questions to the accused about his belief that he could be deported were proper questions. The trial judge’s harsh criticism of this category of questions was entirely misconceived. The impact of this kind of comment by the trial judge could well have been to belittle defence counsel in the eyes of the jury.
[25] However, the trial judge’s “stupid” comment, although inappropriate, especially in the presence of the jury, was a solitary comment. The trial lasted four weeks. Throughout the rest of the trial, the trial judge treated both counsel equally and respectfully. He also communicated in an entirely proper, even friendly, way with the jury throughout the trial.
[26] The trial judge’s refusal of a mistrial without calling on the Crown to respond does not add anything to the appellant’s argument on this issue. Having likely decided that he would apologize to counsel in front of the jury for his comment, the trial judge’s immediate dismissal of the mistrial motion was a realistic appraisal of its potential merit.
(ii) Interventions during the appellant’s testimony
[27] The appellant contends that the trial judge’s interventions during questioning by his counsel were improper and showed a bias and contempt against him.
[28] The appellant points to an exchange when the appellant was testifying about the stab wound to his hand:
Q. Okay. Tell us what injuries you suffered to your hand. A. Well after when I went to the hospital I read the, the doctor’s note – the doctor’s report that I cut all my tendons on my four fingers. Q. Okay. A. Right? So I couldn’t even make a - actually I can’t still make a fist, right? And – but after that I had to go see a plastic surgeon. I had, had two surgeries done on my hand to stitch them together. THE COURT: But you were able to use your hand, weren’t you? You end up stabbing her. Which hand do you use to stab her. A. Your Honour, we’re gonna get there I think. THE COURT: I know we are but I’m asking you right now. A. I don’t know what happened. That’s…. THE COURT: You don’t know what happened. A. Yeah. [Emphasis added.]
[29] The appellant also refers to a second exchange which occurred shortly after the first exchange:
Q. Okay. Do you have time to sort of think about things in all this? A. No. Q. Why not? A. Because I couldn’t – I don’t know what happened. I grabbed the knife, there was a struggle. The next thing I know…I was in my car driving to Nina’s house. THE COURT: So you don’t remember stabbing her 25 times? A. No, your honour. THE COURT: You don’t remember dousing her with gasoline and torching her? A. I will, I will get there. THE COURT: Oh you’ll get there, all right. [Emphasis added.]
[30] The trial judge should not have made the statements in the emphasized passages above. He should have been a listener, not a talker. The questions he asked were proper questions for the Crown to ask in cross-examination, not for the trial judge to ask of the appellant.
[31] However, both before and during the trial the appellant conceded that he had caused Ms. Takyi’s death. Accordingly, there was nothing in the above exchanges that would have led a reasonable person to believe that the trial judge was throwing the weight of his office behind the Crown’s case. Although expressed in vivid language, what the trial judge said in these exchanges did not relate to a contested issue.
(b) Dr. Pollanen’s testimony
[32] Dr. Michael Pollanen is a forensic pathologist. At the time of his testimony at trial, he had performed over 2000 autopsies and had been qualified in the Ontario Superior Court to provide expert opinion on over 200 occasions.
[33] Dr. Pollanen performed the autopsy on Ms. Takyi. His testimony related to the results of the autopsy as well as the injuries sustained by the appellant.
[34] The appellant contends the trial judge’s interjections during his lawyer’s cross-examination of Dr. Pollanen contribute to the cumulative effect of rendering the trial unfair and creating a reasonable apprehension of bias.
[35] I am not persuaded by this submission. The trial judge’s interjections were professional and appeared aimed at maintaining clarity for himself and the jury during questioning of Dr. Pollanen by both defence and Crown counsel. The nature of the testimony, at times, was technical and detailed. It is understandable that the trial judge would have wanted to ensure he and the jury were focussing on the same exhibit or fact as the presenting counsel.
[36] In my view, the strongest interjection during defence counsel’s cross‑examination of Dr. Pollanen occurred when the trial judge abruptly interrupted him shortly after the court reporter had asked counsel to stay close to the microphone:
THE COURT: Now, now you’re disregarding Madam Reporter entirely. If you want a microphone, take the microphone. ‘Cause you’re a [peripatetic], right? You like to walk back and forth? [DEFENCE COUNSEL]: I do. THE COURT: Well, you’re gonna have to get a microphone then, and just hold it, or so. You, you can take the one in front there.
[37] While this exchange may have been terse, it was unrelated to the merits of the case and in no way prejudiced defence counsel’s ability to advance his theory of how the appellant’s hand was cut, which he did throughout his cross-examining of Dr. Pollanen. That exchange also would not cause a reasonable person to suspect bias by the trial judge against the accused as he was simply following through on the court reporter’s request that counsel speak into the microphone so that his words could be preserved for the record.
[38] During oral submissions, the appellant’s counsel conceded the interjections during Dr. Pollanen’s cross-examination were “not that bad”. I agree with this.
(c) The testimony of other witnesses
[39] In addition to contesting the interjections by the trial judge during the testimony of the appellant and Dr. Pollanen, the appellant highlights interjections during the cross-examinations by defence counsel of Angelina Kyei-Bofah, Collins Takyi, and Kinsley Prempeh as demonstrating the “unrelenting nature” of the interventions in the run-up to the appellant’s testimony.
[40] I am not persuaded by this submission. By and large the interventions of the trial judge during questioning by both defence and Crown counsel demonstrated genuine attempts to clarify the questions posed, correct counsel when they erred, and keep the flow of testimony progressing. I do not disagree with the notion that interjections by a trial judge should be limited nor do I disagree that in the present case not all of his interventions were necessary or helpful. But biased they were not.
[41] The interjections during the short cross-examination of Mr. Prembah were innocuous; none were of the sort that would cause a reasonable person to conclude the trial judge was biased against the appellant.
[42] The same, in large part, can be said for the interjections during the cross‑examinations of both Ms. Kyei-Bofah and Mr. Takyi. That said, on at least two occasions, the trial judge interjected in a more strident fashion. For instance, while defence counsel pointed out inconsistencies between Ms. Kyei-Bofah’s testimony concerning the events of December 3, 2012 at Ms. Takyi’s apartment at the preliminary inquiry and at trial, the trial judge intervened:
Q. Okay. Yesterday you told us Bridget didn’t want him to come. You told us several times Bridget did not want him there that day. A. She didn’t want her to – she didn’t want him to come there. I told Bridget to let him come. Q. Right. Not 45 seconds ago you told us Bridget wanted to deal with him THE COURT: No. A. No. THE COURT: She – in the end result what’s gonna – what is gonna be important is whether or not your client hit Bridget, not whether or not there are various inconsistencies. So this is a – virtually a collateral matter, not the – whether or not he killed her and what his state of mind was at that particular time. So let’s, let’s get on with it. She has repeatedly said she was the one that invited him up, the other – Bridget Takyi didn’t want him there but she, she yielded to this woman’s importuning. [DEFENCE COUNSEL]: Okay. THE COURT: So let’s get on with it.
A second example of the trial judge intervening, this time during the testimony of Mr. Takyi, occurred as defence counsel put his theory to Mr. Takyi that he sent anonymous text messages to the appellant threatening his imprisonment and deportation:
Q. Do you ever recall sending text messages anonymously – forget about the SIM card for a sec. Do you ever recall sending text messages to Emmanuel’s cell phone anonymously saying words to the effect of, you’re a wife beater, you’re going to jail and then you’re going to get deported. Do you ever recall doing that? A. No, I don’t recall. Q. Okay. That’s an odd answer, don’t you think? To not.... THE COURT: He doesn’t have to answer that. You can make an observation to the jury later. [DEFENCE COUNSEL]: Okay. [DEFENCE COUNSEL]: Q. So it’s possible then that that happened? You’re not ruling it out one way or the other. A. I don’t know. Q. So it could have happened. THE COURT: Did you send any text messages ever to him? A. No I didn’t, My Lord. THE COURT: He said no. [DEFENCE COUNSEL]: Well M’Lord, that’s in my respectful submission not the end of it. Can we have the jury out please and the witness? THE COURT: No, no, go ahead. [DEFENCE COUNSEL]: Okay.
[43] While the trial judge was firm in these exchanges with defence counsel, he did not display what a reasonable person would consider bias against the appellant.
[44] Most of the trial judge’s interjections were not pointed, nor were the interjections strictly limited to defence counsel. A review of the record reveals many similar interjections during Crown counsel’s examinations-in-chief. His interjections, while perhaps too plentiful, were not disparaging of either counsel or the appellant in any way.
(2) The admission of prior discreditable conduct evidence
[45] As a pre-trial matter, the Crown sought to introduce prior discreditable conduct evidence about the appellant, namely the police video statements of Ms. Takyi reporting an alleged domestic assault by the appellant on December 3, 2012 and the uttering of a threat on December 4, 2012 and the testimony of Angelina Kyei-Bofah regarding the same event.
[46] In a pre-trial ruling, the trial judgment admitted the statements and testimony. He reasoned:
I am satisfied that the deceased Bridget Takyi’s two KGB statements made six weeks prior to the accused having killed her are admissible as ante-mortem statements.
The first statement tends to establish an assault causing bodily harm, and the second statement tends to establish a threat to kill both on the part of the accused Owusu-Ansah.
The two KGB statements are admissible on the issues of motive to kill, animus, and the deceased’s state of mind. That is, fear of the accused.
It is also admissible to establish context and narrative, particularly to show the stormy and terminated relationship between the deceased and the accused. I am satisfied that the KGB statements are trustworthy in the sense that the deceased Takyi had no motive to fabricate the KGB statements, particularly the alleged assault.
The witness Angelina Kyei-Bofah corroborates much of the first KGB statement; the photographs also demonstrate that the deceased indeed suffered bodily harm on the same day as the first KGB statement was made.
[47] The appellant submits that the trial judge erred in making this ruling, principally on the basis that he failed to consider the prejudicial nature of the evidence, namely, that it painted him as a violent misogynist.
[48] I am not persuaded by this submission. This court has repeatedly held that evidence of prior violence against a victim, especially in a domestic context, is admissible on the questions of identity, animus, motive, the accused’s state of mind, the deceased’s fear of the accused, and the background or narrative of the relationship between the accused and the deceased: R. v. Cudjoe, 2009 ONCA 543, at paras. 63-69; R. v. Candir, 2009 ONCA 915, at paras. 51-52, leave to appeal refused, [2012] S.C.C.A. No. 8; and R. v. Moo, 2009 ONCA 645, at paras. 96-101, leave to appeal refused, [2010] S.C.C.A No. 152. Absent legal error, a trial judge’s ruling on this issue is entitled to deference: R. v. Thibeault, 2018 ONCA 876, at paras. 11-12.
[49] In his ruling, the trial judge clearly pointed to the proposed evidence as germane to Ms. Takyi’s fear of the appellant and the broader narrative and context of their relationship. In my view, the probative value of the evidence outweighed, by far, its prejudicial effect. The fact that the appellant killed Ms. Takyi was not in dispute; the evidence therefore could not be misused but rather used by the jury to support an inference that he possessed the state of mind necessary to commit murder.
(3) Jury instruction on provocation
[50] In early November 2012, the appellant received three sets of disturbing text messages from an unknown number with a New York area code. They included long paragraphs filled with degrading language and explicit threats about taking steps that might lead the appellant to jail or deportation to Ghana.
[51] Defence counsel sought to use the threatening November texts to establish that Ms. Takyi wanted the appellant deported to deprive him of access to his children and to establish that she had a motive to lie to the police about the December 3, 2012 incident in her apartment.
[52] The Crown argued that the defence of provocation should not be put to the jury. The trial judge ruled in favour of the appellant. His ruling was consistent with the case law on provocation. As McLachlin C.J. said in R. v. Cairney, 2013 SCC 55, at para. 39:
As the appellant emphasizes in his submissions, “the history and background of the relationship between the victim and the accused is relevant and pertinent to the ‘ordinary person’ test”… Indeed, all contextual factors that would give the act or insult special significance to an ordinary person must be taken into account.
[53] The appellant contends that in his jury charge the trial judge unfairly downplayed the significance of the anonymous insulting and threatening text messages.
[54] I am not persuaded by this submission. In my view, in his jury charge the trial judge accurately set out the defence position with respect to the proper use of the text messages in assessing provocation:
The accused was tormented psychologically by the evil messages and the false criminal accusations. That is the background and context to the accused’s reaction to Bridget Tak[y]i stabbing and taunting him shortly before he killed her. At that time, the accused acted in the heat of passion caused by sudden provocation. The stabbing and taunting were of such a nature as to have been sufficient to deprive an ordinary person found in similar circumstances of the power of self-control.
[55] Moreover, in response to a question from the jury asking for clarification about the defence of provocation, the trial judge repeated his instruction respecting provocation and repeated the positions of the Crown and defence on that issue. He told the jury “[y]ou must also consider the accused’s prior relationship with the deceased.” He also reiterated to the jury the defence position that Ms. Takyi had insulted the appellant “because she said that he was going to jail for a long time and that he would be deported and would never see his sons again.”
(4) Sentence appeal
[56] The jury found the appellant guilty of second degree murder. The trial judge imposed a sentence of life imprisonment with a parole ineligibility period of 22 years. The appellant submits that the parole ineligibility period is too harsh, therefore rendering the sentence unfit.
[57] I disagree. The trial judge accurately described the events leading up to Ms. Takyi’s death:
The accused had hunted down his vulnerable prey from December 5, 2012, onwards, while Ms. Takyi was in hiding from him at women’s shelters and while the accused was under court order not to have any contact whatsoever with her, not to be in possession of any weapons and not to be outside of his apartment except in the presence of his surety who was his cousin.
[58] The murder itself was horrible. The appellant attacked Ms. Takyi at 4 a.m. on a mid-January morning as she came outside to go to her job at Pearson Airport. He attacked her viciously and inflicted 25 stab wounds. He then set her dead body on fire. As he drove away, he called Ms. Takyi’s mother and told her that he had killed her daughter.
[59] The trial judge properly considered that the jury had acquitted the appellant of first degree murder. He found that the appellant had “patently planned” to kill Ms. Takyi, but that he “did not act deliberately”. That finding was open to him on the evidence: see R. v. French, 2017 ONCA 460, at paras. 29-31. Moreover, the appellant had two prior convictions relating to domestic abuse.
[60] Eleven of the twelve jurors made recommendations about the appropriate period of parole ineligibility. Four recommended 25 years and four recommended 20 years.
[61] Taking these factors together, I cannot say that the 22 year period of parole ineligibility imposed by the trial judge is harsh or unfit.
E. Disposition
[62] I would dismiss the conviction and sentence appeals.
Released: March 15, 2024 “D.D.”
“J.C. MacPherson J.A.”
“I agree. Doherty J.A.”
“I agree. E.E. Gillese J.A.”
