Court File and Parties
COURT FILE NO.: CR-16-0000325 DATE: 20190222 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – JOHN MASSON MAXWELL WHITE Defendant
Counsel: Monica Heine, for the respondent (Crown) Christopher Hicks and Vincent Rishea for the applicant (defendant)
HEARD: 11 February 2019 at Napanee
Mew J.
REASONS FOR DECISION (Jury Charge Issue)
[1] John White was charged with the first degree murder of his step-mother, Gail White.
[2] He shot Gail White in the head with a semi-automatic handgun.
[3] His trial commenced on 21 January 2019 in Napanee.
[4] The Crown concluded its case on 29 January 2019.
[5] Following that, the defence brought a motion for a directed verdict of acquittal on the charge of first degree murder. The basis for the application for a directed verdict was the defence position that there was insufficient evidence upon which a properly instructed jury could find that the murder of Gail White was planned and deliberate.
[6] That application was heard on 4 February and my reasons were released on 5 February (reported at 2019 ONSC 916).
[7] The defence called John White as its only witness at trial.
[8] During the course of his examination-in-chief on 5 February 2019, John White testified that he had not intended to shoot Gail White dead. He just meant to scare her. On several further occasions during the course of his cross-examination, John White repeated that he had wanted to scare her.
[9] Mr. White’s cross-examination was completed on 7 February. There was no re-examination.
[10] On 8 February 2019 – a day after the evidentiary portion of the trial had concluded - at the first of several pre-charge conferences, counsel for the Crown advised the court and the defence that an alternative theory of the case for the Crown was that John White’s acknowledged action of pointing a firearm at Gail White with the intention of scaring her would constitute constructive first degree murder through criminal harassment: Criminal Code, section 231(6).
[11] The defence challenged the appropriateness of this alternative theory of first degree murder to the jury being put to the jury, arguing that:
a. The Crown’s alternative theory had only been articulated for the first time after the evidentiary portion of the trial had concluded; and b. There was insufficient evidence upon which a properly instructed jury could convict Mr. White of first degree murder by the route provided in section 231(6) of the Code.
[12] After hearing argument on the issue of whether the Crown’s alternative theory should be put to the jury, I ruled that, for reasons to follow, the alternative theory of first degree murder based upon contravention of section 231(6) of the Criminal Code would not be put to the jury.
[13] These are my reasons.
Facts
[14] The shooting of Gail White occurred on the afternoon of 16 April 2016. It happened in the living room of a residence in Roslin, Ontario which was owned by John White’s father, Don White. Don White and his wife Gail lived at the Roslin house. John White and his girlfriend, Jessica White, had also been living at the Roslin house. However, tensions had developed leading to the John White and Jessica White being asked to move out. On 16 April, John White and Jessica White had started the process of moving out some of their things.
[15] At around noon on 16 April, Jessica White and John White were in the kitchen loading items from the kitchen cupboards and the refrigerator into some plastic totes. Gail White was present. A dispute developed about the ownership of some food. Gail White accused Jessica White of stealing. John White intervened in the argument and there was a brief physical altercation with Gail White pushing John White against the refrigerator with both her hands and pushing or tapping him on the arm twice. There is no evidence that John White responded or retaliated to this incident at the time.
[16] After moving out the loaded totes and placing them in their van, John White and Jessica White had a smoke break during the course of which Don White come out of the house. A discussion ensued. Don White turned around and went back into the house. John White, followed by Jessica White, went into the house after Don White. A discussion, which became argumentative, then ensued in the living room of the Roslin home. Don White and Gail White were sitting in armchairs in the living room; John White and Jessica White were standing. The discussion/argument lasted for some time, perhaps as long as an hour. Portions of the discussion were recorded on Jessica White’s mobile telephone.
[17] At some point in the argument, the name of Carol White, John White’s deceased mother, was brought up by Gail White. A little later on, Gail White said to John White, apparently referring to John White’s father, Don: “You’re saying he’s … leached off your mother all those years that they were married that’s what you’re saying” to which John White responded “don’t talk about my mother.” Gail White then replied “well don’t say it”. John White responded “you’ve got no words to even talk about my mother, say my mother’s name one more time”. Gail White then said “Carol”. The next utterance on the recording is John White saying some words to the effect “I fucking warned her” (the defence questions whether these words are audible and, hence, whether that was actually said).
[18] At this point, John White pulled out a previously concealed handgun from his waistband, took three or four steps towards Gail White, leaned over her and shot her in the centre of the forehead with a single bullet. Within a short period after this incident, John White said to his father, who had pulled out his cell phone to call 911 “don’t you fucking call nobody” and, shortly after that, after his father had told him to get out, John White said “she fucking started it”.
Relevant Provisions
[19] Section 231(2) of the Criminal Code provides that murder is first degree murder when it is “planned and deliberate”.
[20] Section 231(6) of the Criminal Code contains an additional route to first degree murder, providing:
Criminal harassment (6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 264 and the person committing that offence intended to cause the person murdered to fear for the safety of the person murdered or the safety of anyone known to the person murdered.
[21] Criminal harassment is defined in section 264 of the Criminal Code. For the purposes of this case, the prohibited conduct said by the Crown to amount to criminal harassment invokes section 264(2)(d) which, paraphrased, provides that no person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in threatening conduct directed at the other person or any member of their family, that causes that other person reasonably, in all of the circumstances, to fear for their safety or the safety of anyone known to them.
Crown’s Position
[22] The Crown points to a number of cases which support the position that a single incident can be a sufficient basis for a conviction of criminal harassment and, hence, if death ensues, constructive first degree murder. Accordingly, the Crown argues that the jury should be given the opportunity to consider this alternative route to convicting the defendant of first degree murder.
[23] The Crown rejects the suggestion that any prejudice or unfairness results from this alternative theory having only emerged after the evidentiary portion of the trial was concluded. The Crown asserts that it was only during the course of Mr. White’s cross-examination that evidence fully emerged that he intended, by pulling out the handgun and pointing it at Gail White, to scare her; it was only then that criminal harassment emerged as a viable alternative route to a conviction for first degree murder. Furthermore, the Crown argues that it should be presumed that Mr. White’s counsel would have known what he was going to say at trial and that, accordingly, it should have come as no surprise when the Crown adjusted its theory of the case.
[24] The defence, while acknowledging the possibility of single incident criminal harassment where the facts and circumstances warrant it, argues that the evidence in the present case is incapable, even viewed in the light most favourable to the Crown, is incapable of proving the offence of criminal harassment.
The Law
[25] In R. v. Kosikar (1999) 138 C.C.C. (3d) 217 (Ont. C.A.), at para. 19, the Ontario Court of Appeal adopted an earlier formulation by Proulx J.A. in R. v. Sillipp (1997), 11 C.R. (5th) 71 (Alta. C.A.) of the five essential elements of the offence of criminal harassment:
a. It must be established that the accused has engaged in the conduct set out in section 264(2) (a), (b), (c), or (d) of the Criminal Code [engaging in threatening conduct directed at the other person or any member of their family is the prohibited conduct described in section 264(2) (d)]; b. It must be established that the complainant was harassed; c. It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed; d. It must be established that the conduct caused the complainant to fear for her safety or the safety of any one known to her; and e. It must be established that the complainant’s fear was, in all of the circumstances, reasonable.
[26] In Kosikar, the accused had frequently come into the restaurant where the complainant was a waitress. He would try to sit in her section and engage her in small talk. While he wanted to commence a relationship with her, the complainant made it clear to him that she was not interested and wanted him to leave her alone. Despite this, he persisted and began sending her letters and, once he found out where she lived, leaving gifts at her apartment. Once, she found him sleeping in the hall by her front door. She changed jobs, but that did not help. She moved to a different community, but he managed to locate her. The letters and gifts kept coming with only short interruptions. Over time, the letters began to carry the theme that God had promised her to him, that she had no free will, and that her life had been predestined to be with him.
[27] The complainant eventually obtained a peace bond which the accused honoured for its one year period, but as soon as that period ended, he recommenced the sending of letters. He was convicted of criminal harassment and received three years’ probation. During his term of probation and for several months thereafter, the complainant did not hear from the accused. Then a letter arrived. It reiterated his love for her. It rebuked her lifestyle and offered to save her for God. Unlike the prior letters, it contained explicit and aggressive sexual references. The letter left the complainant very shaken.
[28] The accused was charged with criminal harassment. The Crown’s case was that although there had been no other contact in the six months preceding the charge, the letter constituted threatening conduct for the purposes of section 264(2) (d). The decision of the Court of Appeal noted that while the Crown relied on the earlier relationship between the appellant and the complainant to prove the elements of criminal harassment, it was the sending and receipt of the letter that was the focus of the criminal harassment of the complainant. The Court of Appeal, quoting from Proulx J.A. of the Quebec Court of Appeal in R. c. Lamontagne (1998), 129 C.C.C. (3d) 181 (Que. C.A.) stated (starting para. 24 of Kosikar):
24 He went on at p. 188, supra: "Harassment" was not defined by Parliament in s. 264. In Ryback and Sillipp … the courts agree to give this word a contextual interpretation. These cases point out that it is not sufficient that the complainant be "vexed, disquieted or annoyed", rather it must be demonstrated that the prohibited conduct "tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered".
25 Hence, I think this element of the offence requires the Crown to prove that as a consequence of the prohibited act the complainant was in a state of being harassed or felt harassed in the sense of feeling "tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered". The statute says nothing that would preclude a single threatening act from producing this consequence. In other words, while being in a harassed state involves a sense of being subject to ongoing torment, a single incident in the right context can surely cause this feeling.
[29] On what the Court of Appeal described as “the peculiar facts” of Kosikar, although the single incident constituting the threatening conduct had been the sending of the letter, the evidence of the prior contact between the accused and the complainant was properly used to prove that, as a consequence, the complainant felt harassed. The prior contact was not, itself, an element of the offence. But it explained why the complainant had felt harassed when she received the letter.
[30] To obtain a conviction for first degree murder under section 231(6) of the Criminal Code, the Crown must prove beyond a reasonable doubt both the underlining offence of criminal harassment under section 264 and, additionally, that the accused intended the victim of the harassment to fear for her safety: R. v. Smith, 2014 ONCA 324, at para. 34.
[31] Furthermore, as Molloy J. noted in R. v. Burnett, 2015 ONSC 2283, at para. 14, the murder must also have been committed while the accused was committing criminal harassment. Citing R. v. Harbottle, [1993] 3 S.C.R. 306 at paras. 37 and 39, Molloy J. observes that the meaning of this requirement is that the underlining offence and the murder must be “part of the same transaction” or “part of the same series of events”.
[32] In considering the application of section 231(6) to the facts in R. v. Burnett, Molloy J. found it instructive to consider the genesis of the legislation that created constructive first degree murder by criminal harassment (Bill C-27, An Act to amend the Criminal Code (child prostitution, child sex tourism, criminal harassment and female genital mutilation), 2d Sess., 35th Parl., 1996-1997). Molloy J. made reference to Parliamentary debates in which it was said that the amendments would serve to provide increased protection to women and children who are the primary victims of criminal harassment or stalking.
[33] At para. 52 of her decision, Molloy J. noted that a number of the decisions which had held that a “single act” was sufficient to constitute criminal harassment included a past history of stalking type conduct and harassment. Although in one of the cases considered, R. v. Kohl, 2009 ONCA 100, there had been an encounter between strangers, it involved, in the view of Molloy J., not a single act but, rather, persistent threatening behaviour of various types in a continuing sequence of time.
[34] Commenting on the facts of the case before her in Burnett, where the accused had uttered a death threat against the victim and then proceeded to the address where he believed the victim to be and, upon finding him, shot him dead, all within 45 minutes, Molloy J. stated (at para. 55):
... it is open to the jury to conclude that the shooting was planned and deliberate and therefore first degree murder. If a threat to kill, followed up by murder, is not sufficient to establish first degree murder directly, I fail to see how it could sustain a conviction for first degree murder while committing criminal harassment. If so, every time a threat is uttered and the person threatened is then immediately murdered, first degree murder has been committed, regardless of planning and deliberation. This cannot be the intention of or purpose behind s. 231(6). It makes no sense to me that a murder that is not planned and deliberate--and therefore subject to a parole ineligibility period as low as 10 years--should become subject to a mandatory 25 year ineligibility period if it is immediately preceded by a threat.
[35] To similar effect, in R. v. Bradley, 2013 PESCTD 30, after a 25 year common law relationship had broken down, the accused had gone to the victim’s apartment building, uninvited, breaking in and, on more than one occasion, causing damage and scaring residents. This, ostensibly, because he wanted the victim to move back home with him. He was placed on probation and ordered to stay away from the victim’s residence. The day before the murder, the accused had called the victim four times. At approximately 5:00 a.m. on the morning of the murder, the accused had driven to the victim’s apartment building and began pressing the buzzer to her apartment. He left before the police arrived. However, while the police were there, the accused called the victim’s residence and, when challenged by the police officer about his presence, explained that his “stay away order” had recently expired and he was allowed to be there. Ninety minutes after that conversation, the accused smashed his way into the building using an axe and carrying a hatchet. A number of 911 calls came in in which the callers said there was a “mad man with an axe breaking into the apartment”, the “girls are screaming”, that he “was in [the victim’s] room, beating her up”, and he was “going ballistic”. Within two to three minutes, the police had arrived, to be told by the accused that “my wife is dead”.
[36] In assessing whether, in addition to the “planned and deliberate” route to a conviction of the accused for first degree murder, an alternative route would be constructive first degree murder based on criminal harassment, Campbell J. noted that while there was a great deal of evidence that would lead to the conclusion that the victim feared the accused, “it is only the accused’s conduct at the time of the murder that is to be examined under this section”.
[37] Although, on the facts, Campbell J. found that the accused was guilty of first degree murder in accordance with both section 231(2) and 231(6) of the Criminal Code, he made the following observation which is germane to the case before me: (para. 145)
The defence has suggested that every murder involving an attack which the victim is aware would involve threatening conduct. I accept that this is true. However, the distinction between that situation and one under section 264(2) (d) is the matter of harassment. Had [the accused] smashed his way into the apartment building … and then into some other apartment and into someone else’s bedroom and stood in the doorway in the same manner he had done with [the victim] and then killed the occupant, that person would undoubtedly have feared for their life. However, I would not consider that the ensuing murder in that case would constitute first degree murder under section 231(6). It is the accused’s knowledge that his particular victim … would, as a result of his past actions, be harassed or tormented by his conduct and his intention to cause her to fear for her safety that warrants the upgraded classification of his act and the more severe punishment imposed in respect of first degree murder. The increased punishment reflects society’s denunciation of those offenders who fail to respect each individual’s right to conduct their lives without unwanted, undue, and unjustifiable interference from others.
[38] It should be immediately obvious from these quotations, and from the factual circumstances of the cases that have been considered, that the killing of Gail White did not involve criminal harassment. Even if, as the Crown suggests, the previous history of arguments and exchange of insults would have informed Gail White’s reaction when John White pulled out a gun, took three to four steps towards her and shot her – a transaction which lasted a few seconds at most. The evidence suggests that Gail White would have had little, if any, time to apprehend what was happening and react. A forensic photograph shows her sitting on her armchair, her legs crossed and resting on a foot stool, her mobile phone on her right upper thigh.
[39] It would torture the natural and ordinary meaning and application of the term “harassment” (even before considering the legislative purpose which the introduction of section 231(6) was intended to address) to conclude that the requirements for criminal harassment have been made out on the facts of this case. Nor does the evidence support a conclusion that Gail White would have experienced feelings of being “tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered”. Putting the Crown’s evidence in its most favourable possible light, a properly instructed jury could not, in my view, reasonably find John White guilty of constructive first degree murder while committing criminal harassment.
[40] I would add that even if I am wrong in my determination that there is no evidence upon which a properly instructed jury could convict Mr. White under section 231(6) of the Code, I would not have been inclined to put the option of conviction by that route (in addition to the “planned and deliberate” route) to the jury because of the late stage in the trial at which the option was first raised.
[41] In Burnett, the Crown had not raised the possibility of leaving the theory of constructive first degree murder based on criminal harassment to the jury until “quite late in the trial”. But that was before the accused had testified. Molloy J. said that she saw no prejudice to the defence arising from any delay by the Crown in raising this legal argument as a basis for finding guilt. She noted, at para. 16, that “[i]t was always the theory of the Crown that [the accused] had threated to kill [the victim] and the threat was a central feature of the Crown’s case, particularly with respect to planning and deliberation”. The importance of the threat, and the victim’s reaction after the threat was made, had been apparent to the defence from the outset. Accordingly, Molloy J. could not see anything that would or could have been done differently had the defence known about the alternative basis for responsibility before the trial had started (which is what the defence argued should have occurred).
[42] By contrast, the alternative theory was not raised in this case until after the evidence at trial had been completed and, indeed, until well into the first of several pre-charge conferences.
[43] While I find nothing improper about the way in which the alternative theory emerged, and, further, accept Crown counsel’s assertion that it was not until she heard the evidence of the accused, that the viability of the alternative theory became apparent, I cannot be as confident as Molloy J. was in Burnett that the defence would have been conducted in exactly the same manner had the Crown’s intention to pursue the alternative theory being apparent at an earlier stage. In that regard, I note that there was no re-examination of Mr. White by his counsel, despite a number of questions and answers during the course of his cross-examination about his intention to threaten and intimidate, but not hurt or kill, Gail White.
[44] Had I found that there was evidence upon which the jury could have found constructive first degree murder it would, in my view, have undermined Mr. White’s right to a fair trial to have permitted that route to conviction to be put to the jury in the circumstances I have described.
[45] The foregoing reasons explain my decision to decline to put the option of constructive first degree murder contrary to section 231(6) of the Criminal Code to the jury.