COURT FILE NO.: CR-16-0000325
DATE: 20190205
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOHN MASSON MAXWELL WHITE
Defendant
Monica Heine, for the respondent (Crown)
Christopher Hicks and Vincent Rishea for the applicant (defendant)
HEARD: 4 February 2019 at Napanee
PURSUANT TO S. 648(1) OF THE CRIMINAL CODE, NO INFORMATION REGARDING THESE REASONS OR THE PROCEEDINGS IN COURT IN RELATION TO THIS APPLICATION SHALL BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY BEFORE THE JURY RETIRES TO CONSIDER ITS VERDICT AT THE TRIAL OF THIS MATTER
mew j. (ORALLY)
REASONS FOR decision
(Defence application for Directed Verdict of Acquittal on Charge of First Degree Murder)
[1] The defence applies for a directed verdict of an acquittal on the charge against John White of the first degree murder of Gail White on 16 April 2016.
Background
[2] John White shot his step-mother, Gail White, in the head. The incident happened in the living room of a house at 3867 Shannonville Road, Roslin, owned by John White’s father Don. One shot was fired, with immediately fatal consequences, from a semi-automatic pistol owned by, and registered to, John White.
[3] The incident was witnessed by Don White and by John White’s girlfriend at the time, Jessica White. Immediately prior to the incident the four individuals – Gail, John, Don and Jessica – had been involved in a discussion for approximately 45 minutes. That discussion, the incident, and the immediate aftermath, were audio recorded by Jessica White on her phone.
[4] To establish that John White is guilty of first degree murder, the Crown must prove that John White murdered Gail White and that her murder was planned and deliberate.
[5] The defence asserts that there is no evidence before the court that would support a finding by the jury that the murder was planned or deliberate and that, accordingly, the option of first degree murder should not be put to the jury at all.
Legal Principles
[6] In determining the issue of a directed verdict, a trial judge must ask whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty: United States v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 SCR 1067, at p. 1080. The test to be applied in determining a directed verdict application is the same test that a judge at a preliminary inquiry utilises to determine whether to commit an accused to trial. An application will fail in any case where, taking the Crown’s case at its highest, there is admissible evidence which, if believed, could result in a conviction.
[7] The approach to be taken by a preliminary inquiry judge, and, hence, by a trial judge on a directed verdict application, is set out in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at paras. 22, 23 and 30 (references omitted).
22 The test is the same whether the evidence is direct or circumstantial. The nature of the judge's task, however, varies according to the type of evidence that the Crown has advanced. Where the Crown's case is based entirely on direct evidence, the judge's task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true. It is for the jury to say whether and how far the evidence is to be believed. Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge's task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.
23 The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should be believed. The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.
30 In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.
[8] Where more than one inference can be drawn from the evidence, only inferences that favour the Crown are to be considered for the purposes of an application for a directed verdict: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18.
[9] Murder is first degree murder when it is planned and deliberate: Criminal Code, s. 231(2). Planning and deliberation are separate concepts, both of which must be established by the Crown: R. v. Aalders, 1993 CanLII 99 (SCC), [1993] 2 SCR 482, at para. 50.
[10] The classic definition of the terms “planned” and “deliberate” was given by Gale J. in the unreported case of R. v. Widdifield, Ontario High Court, 29 September 1961, cited in numerous cases since. In R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074, at para. 43, the Supreme Court wrote:
It has been held that "planned" means that the scheme was conceived and carefully thought out before it was carried out and "deliberate" means considered, not impulsive. A classic instruction to a jury as to the meaning of "planned and deliberate" was given by Gale J., as he then was, in R. v. Widdifield (1961), Ontario Supreme Court, unreported, as excerpted in 6 Crim. L.Q. 152, at p. 153:
I think that in the Code "planned" is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate.
The important element, it seems to me, so far as time is concerned, is the time involved in developing the plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately it is prepared set out to do the planned act, or, alternatively, you can wait an appreciable time to do it once it has been formed.
As far as the word "deliberate" is concerned, I think that the Code means that it should also carry its natural meaning of "considered," "not impulsive," "slow in deciding," "cautious," implying that the accused must take time to weigh the advantages and disadvantages of his intended action.
[11] In David Watt, Watt’s Manual of Criminal Jury Instructions, 2^nd^ ed., (Toronto: Carswell, 2015), at p. 691, the following jury instruction on “planned” and “deliberate” is provided:
The words “planned” and “deliberate” mean different things.
“Planned” is a word that we often use when talking to other people. It means the same thing here that it does when we say it to others. “Planned” means a calculated scheme or design that has been carefully thought out. The consequences of it have been thought over (weighed) (considered) and sized up.
The plan does not have to be complicated, nor sensible. It may be a very simple plan, one that is quite easy to set up. An important factor is the time it took to develop the plan, not how much or little time it took between developing it and carrying it out. One person may prepare a plan and carry it out immediately. Another person may prepare a plan and wait a while, even quite a while, to carry it out.
A planned murder is one that it is committed as a result of a scheme or plan that has been previously formulated or designed. It is the implementation of that scheme or design. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill is not a planned murder.
“Deliberate” is not a word that we often use when speaking to other people. It means “considered, not impulsive”, “carefully thought out, not hasty or rash”, “slow in deciding”, “cautious”.
A deliberate act is one that the actor has taken time to weigh the advantages and disadvantages of. The deliberation must take place before the act of murder (briefly describe) starts. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill is not a deliberate murder.
[12] A number of authorities dealing with committal proceedings have noted that it is not sufficient for the Crown to demonstrate mere possibility of a planned and deliberate murder; the Crown must show more than mere speculation or suspicion: R. v. Mathison, [2003] O.J. No. 3403 (O.C.J.) at para 15. In R. v. Talbot (1985), 1985 CanLII 3553 (ON SC), 21 C.C.C. (3d) 390 (Ont. H.C.J.) at para. 18, Barr J. commented that if the jury would be required to “leaven the evidence with conjecture” in order to infer guilt, an accused’s committal on a charge of first degree murder should be quashed.
The Evidence
[13] Don White had met Gail White approximately one and a half years after the death of his first wife, Carol, in 2004. Carol was the defendant’s mother. Don and Gail White married in 2012.
[14] Don White had owned various properties in Belleville over the years. In or about 2013, he bought the Roslin property off his cousins. He and Gail White continued to live in Belleville until late 2015. In the meantime, John White had moved in to the Roslin property in 2014 and, after she became romantically involved with John White in the summer of 2015, Jessica White had also moved in there with him.
[15] John and Jessica White worked on renovating the house together. At some point, work on renovating the house came to a halt. Jessica White says this was about a month before the incident. Prior to that, there had been a reduction in the amount of work being done because she had medical appointments which John White would take her to. The cessation of renovation work eventually became at least one of the reasons for the defendant and Jessica White moving out. They had started moving out some of their possessions on the day of the incident.
[16] In early 2016, the Bailey family, consisting of two parents and their two teenage boys, moved into the Roslin house. They were acquaintances of Jessica White’s who had fallen on difficult times and needed somewhere to live. Conflicts arose due to too many people in the house. Towards the end of March 2016, arguments became frequent about Jessica’s children making noise when they visited, the use and cleaning of the kitchen, and rent being paid to Gail White.
[17] Jessica White testified that on 16 April 2016, she got up and began working on moving out that day. She had not given any notice to Don or Gail White about the move, but told them that morning of their intent. Close to noon, some storage totes were brought downstairs and used to load items from the fridge and kitchen. Jessica says that Gail White was present in the kitchen to supervise and make sure that Jessica White and the defendant did not take anything that did not belong to them.
[18] According to Jessica, a dispute developed about ownership of some food in the cupboard. The dispute was between Jessica White and Gail White. Gail accused Jessica of stealing. The defendant intervened in the argument and Gail White pushed him against the fridge with both her hands and punched him in the arm twice with closed fists. Jessica White says that the defendant did not react to this. Don White did not see this incident and testified that he did not believe it happened.
[19] Soon after the totes had been filled and loaded into a van used by John White, he and Jessica White returned to the living room. A discussion then ensued between them and Don and Gail White. Don and Gail were seated. Jessica and John were standing. At some points, the discussion became argumentative.
[20] At some point in the argument, the name of Carol White, the defendant’s deceased mother, was brought up by Gail White. The defendant said that Gail did not have the authority or audacity to talk about Carol. A little later, after Gail White said to the defendant “you’re saying he’s [apparently referring to Don White] leach leached off your mother all those years that they were married that’s what you’re saying” to which the defendant responded “don’t talk about my mother”, Gail responded “well then don’t say it”, the defendant responding “you’ve got no words to even talk about my mother say my mother’s name one more time”. Gail White then said “Carol”, following which the defendant pulled out a handgun from his waistband, took three or four steps towards Gail White, leaned over her and shot her in the forehead with a single bullet.
[21] The next utterance on the recording after Gail White was shot is John White saying “I fucking warned her” (the defence questions whether this is what was actually said). After seeing his wife shot, Don White’s evidence is that he reached to his belt and pulled out his phone. It was a flip phone and he opened it to make a call to 911. The defendant closed the phone and said, “Put it away or you are next,” or “Leave it alone or you are next.” Don White’s pulling out the phone and the defendant’s threat occurred right away after Gail had been shot in a matter of seconds. Don White then “crowded” the defendant until the defendant left the house. Before he left, however, John White said “she fucking started it” (again, the defence challenges the accuracy of those transcribed words). Don White closed and locked the door behind the defendant. Jessica White had fled the house just before the defendant was crowded out. Don White then called the police. When the audio recording of the incident was played. Don White agreed that the threat, “Put it away or you are next” or “Leave it alone or you are next,” was not audible on the recording of the incident. He offered by way of a possible explanation for this that the threat must have happened after Jessica fled. On the audio recording the defendant can, however, be heard saying “Don’t you fucking call nobody”.
[22] Jessica White’s evidence is that the defendant came out of the house immediately after her. The defendant unloaded the gun and placed both pieces of it on the picnic table. The two of them sat at the picnic table. She described the defendant’s demeanour as blank and empty. He appeared stunned. She asked him what had happened and he said he did not know. Some discussion about getting cigarettes ensued and they both entered the van and drove to the end of the driveway before reconsidering, reversing the van and going back to the picnic table to wait.
[23] Jessica White was asked about saying to a police officer, shortly after she and John White were arrested that, while she and John had been sitting at the picnic table before the police arrived that he had told her that “he did what he had to do”. She could not remember saying this to the officer, but said she was being truthful when she spoke to him.
[24] Don White suggested that it appeared to him that the defendant was trying to start an argument that afternoon. But neither he nor Jessica knew that the defendant was carrying a gun that day. Both knew, though, that the defendant did own guns, including one or more handguns. Don White believed that the guns were in “lockup”. Jessica White testified that while at some point guns had been stored in the closet in their room at the Roslin house, they had been moved to a locked cabinet at the home of John White’s twin brother Jamie. She had seen a handgun on a trip with John White to Oshawa, but believed that at the end of that trip the gun had been left by John White with his brother at the latter’s residence in Madoc.
[25] Jessica testified that during the week before 16 April, she and the defendant had gone to Jamie’s house in Madoc to fix a sump pump. Jamie was not home, but Jamie’s wife, Sara and his and the defendant’s sister, Dawn Marie were there. Jessica did not see a gun then, nor hear any conversation about keys to the gun cabinet, nor see a red backpack there. She understood that guns were stored upstairs. She did, however testify that a red backpack belonging to John White had been brought from Jamie’s house and was stored in the closet of their bedroom in Roslin. On the morning of the shooting, she testified that it was in the closet earlier and then she saw it later in the van when she was loading a tote.
[26] The red backpack left in the van used by the defendant contained a knife, a sheath for that knife, a holster for the handgun used by the defendant to shoot Gail White with an additional loaded magazine and two boxes of ammunition. The boxes of ammunition contained the same hollow point bullets used in the gun that shot Gail White.
[27] Sarah White testified that John White was attempting to access the gun safe at her house days prior to the shooting of Gail White. However, she did not know where the keys to the safe were kept and does not know if John White was able to open the gun safe. She did not see him take anything out of her house with him when he left.
Defence Position
[28] The defendant takes the position that the Crown has not adduced sufficient evidence, direct or circumstantial, of the requisite mental process required of a planned and deliberate scheme.
[29] Prior to the visit to Jamie White’s house in Madoc, there was no meaningful evidence of animus between Gail White and the defendant. At best, for the Crown, there was evidence of a mildly deteriorated relationship between John White and Gail. The evidence of both Jessica White and Don White was, however, of a generally good relationship. While there would have been an opportunity for planning and deliberation during this period, there is no evidence of animus. The evidence of planning and deliberation here would therefore be based purely on speculation
[30] After the physical confrontation in the kitchen on 16 April, described by Jessica White, there is some evidence of a potentially elevated animus between the defendant and Gail White. However, Jessica’s evidence is clear that the argument was more between her and Gail; not between John and Gail. Furthermore, Jessica’s evidence is that John White did not react to this confrontation. Both Don White and Jessica White indicate that John White continued to converse with Gail and Don White after this kitchen incident without any palpable level of aggression. There is no evidence of animus that would lend itself to the planning of a murder here.
[31] After Gail White’s statement of Carol’s name, there was certainly meaningful evidence that could indicate a motive by John White to kill Gail. However, the evidence of both Don White and Jessica White show an immediate reaction by the defendant. A few seconds at most pass between the offending utterance “Carol” and the shooting. Even if the “clock starts ticking” earlier, at the time the defendant makes a statement about telling Gail to not say Carol’s name, there still remained a very short period of time in which planning and deliberation could have occurred. While the planning for a planned and deliberate murder does not need to be complex or take a great deal of time to be created, the time period here is far too short for even a simple plan. Furthermore, even if there would be enough time to formulate a plan for murder, impulsive acts cannot be considered deliberate. As in R. v. Hafizi, 2019 ONCA 2, the quick reaction is inconsistent with anything but impulsivity. It is not possible that a rational juror could agree that enough time elapsed for planning or deliberation here and no rational juror could determine that this was an act that represented anything other than an impulsive reaction. A murder committed on a sudden impulse and without prior consideration, even though the intent to kill is clearly evident and proven, cannot constitute a planned murder. A murder that is deliberate, as in R. v. Smith (1979), 1979 CanLII 2233 (SK CA), 51 C.C.C. (2d) 381 (Sask. C.A.), but for which there is no evidence of planning, is not first degree murder.
[32] The defence cautions against reliance on post-offence conduct as reflecting an executed plan and refers to a note of caution sounded by the Court of Appeal in that regard in R. v. Angelis, 2013 ONCA 70, at para. 53.
[33] In short, the defence asserts that the Crown’s case, put at its strongest, is that the defendant could have planned and deliberated in advance or that there was an opportunity to plan and to deliberate. The defence argues, however, that simply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence.
Crown Position
[34] In a circumstantial case, a trial judge must determine whether the inferential gaps between the evidence and the matters to be established can reasonably be bridged. This task requires a limited weighing of the available evidence, both inculpatory and exculpatory, to determine whether there is some evidence that is reasonably capable of supporting the inference(s) the Crown seeks to have the jury draw. Importantly, a trial judge engaging in limited weighing for this purpose must not veer into a weighing of competing inferences.
[35] It is not the responsibility of a trial judge ruling on a directed verdict application to assess competing inferences to determine whether there is room for reasonable doubt – that is the role of the jury.
[36] The Crown lists evidence from which, it says, inferences supporting findings of planning and deliberation can be drawn:
- Don White testified that approximately two or three weeks before the incident, the defendant said “what are you going to do when you are sitting here all by yourself in the house”. Don White responded to the defendant that he would have Gail, who was thirteen years his junior and without significant illnesses, there with him.
- Sara White’s testimony that the defendant had asked her for the key to the gun locker days before the incident.
- Prior to the shooting the magazine of the handgun was loaded with ammunition, the magazine was loaded into the gun and a round was chambered.
- The gun was not left in the van with the holster and ammunition but instead brought into the house (the gun, on a previous occasion, having been located in the central console in the van).
- Prior to the shooting there had been a long conversation in the living room during which, knowing he had a loaded gun, the defendant did not walk away.
- Instead of taking a step back and threatening Gail White with the gun, the defendant had walked up to her to ensure accuracy.
- The defendant had secreted the gun in the waistband of his pants.
- The defendant did not tell anyone who might have dissuaded him from his intention to use the gun.
- The defendant provoked Gail to the point where she said his late mother’s name.
- Utterances immediately after the incident by the defendant on the recording (albeit the accuracy of which is challenged by the defence) that “I fucking warned her” and “she fucking started it”
- The defendant’s post incident comment to Jessica White that he did what he had to do.
- The accuracy of the shot
- After the incident rather than dropping the weapon after shooting, the defendant threatened his father and walked out.
- By dissembling the gun after the incident thereby rendering it safe, the defendant demonstrated that that he knew how to make it not shoot.
- The defendant chose to carry a gun rather than a knife.
Discussion
[37] Cases relied upon by the defence in which findings of guilt of first degree murder were set aside because the evidence did not support the jury’s verdict are of limited assistance. In many of those decisions, the existence of alternative conclusions as to what might have occurred was sufficient to raise issues of reasonable doubt, such that the jury’s finding of guilt was unreasonable.
[38] On an application such as this, it is necessary only for the Crown to establish that there is evidence – any evidence - upon which a properly instructed jury could conclude that there was planning and deliberation on the defendant’s part. Although I am required, as explained in Arcuri, to engage in a limited assessment of whether the evidence is reasonably capable of supporting the inferences that the Crown asks the jury to draw, I am not asked at this stage to weigh possible competing inferences or theories of what happened.
[39] In R. v. Plaha, 2008 ONCA 96, the Court of Appeal went as far as stating that while there was much to be said for the defendant’s argument that the inference favoured by the Crown should not be drawn, it could not be said that such a conclusion was unreasonable. Even though the Crown’s case was, according to the Court of Appeal, “thin”, the trial judge had been wrong to direct a verdict of acquittal.
[40] To similar effect, in R. v. Bigras, 2004 CanLII 21267 (ON CA), the Court of Appeal found that the trial judge, after correctly stating the principles that guided him, had engaged, to an impermissible degree, in weighing the evidence and usurping the function of the jury by directing a verdict of acquittal on charges of first and second degree murder, leaving a charge of manslaughter to be considered by the jury. Sharpe J.A. concluded, at para. 20, that “although the Crown’s case for first or second degree murder as opposed to manslaughter was not overwhelming, and that it would require very close scrutiny from the trier of fact, there was evidence from which a properly instructed jury could reasonably infer the requisite element of mens rea to support a verdict of guilty to both second and first and murder”.
[41] The defendant relies on R. v. Villaroman, 2016 SCC 33, and in particular the special concern, articulated by Cromwell J. in para. 26 of that decision, that in the process of inferential reasoning from circumstantial evidence, a jury may unconsciously “fill in the blanks” or bridge gaps in the evidence to support the inference that the Crown invites it to draw. The solution to this danger is offered in para. 30 of the decision: the jury should be cautioned about too readily drawing inferences of guilt by overlooking reasonable alternative inferences. It may well be that there are other conclusions that a jury could reach than the inferences advocated by the Crown. But provided that there is evidence on which a properly instructed jury could make those inferences, the jury should not be deprived of the opportunity to consider whether the evidence, taken as a whole, supports a finding that there was planning and deliberation on John White’s part.
[42] Similarly, the submission by the defence that the court should caution against use of post-offence conduct to infer that an accused committed murder rather than manslaughter has to be measured against the view, expressed by Laskin J.A. in Angelis, at para 55, that consideration must be given to all of the circumstances of a case to determine whether post-offence conduct is probative, the overriding question being what do “logic and human experience” suggest that a jury can legitimately or rationally infer from an accused’s post-offence conduct. Suffice it to say at this stage, on an application for a directed verdict, that there is some evidence of post-offence conduct from which a properly instructed jury could draw inferences on the factors of planning and deliberation.
[43] Dependant as the Crown’s case on first degree murder is on circumstantial evidence, as is probably by now evident from my comments, I am unable to conclude that the Crown’s case is so devoid of any evidence supporting a finding of first degree murder that I should direct a verdict of acquittal on that charge.
[44] Accordingly, the application is dismissed.
Graeme Mew J.
Released: 5 February 2019
COURT FILE NO.: CR-16-0000325
DATE: 20190205
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOHN MASSON MAXWELLWHITE
Defendant
REASONS FOR DECISION
((Defence application for Directed Verdict of Acquittal on Charge of First Degree Murder)
Mew J.
Released: 5 February 2019