



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Carignan, 2021 ONCA 496

DATE: 20210706

DOCKET: C65806

Doherty, Trotter and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Carignan

Appellant

Jeff Marshman, for the appellant

Michael S. Dunn, for the respondent

Heard: June 1, 2021 by video
    conference

On appeal from the conviction entered on
    November 21, 2017 by Justice Cindy A.M. MacDonald of the Superior Court of
    Justice, sitting with a jury.

REASONS
    FOR DECISION

INTRODUCTION

[1]

The appellant was convicted of second degree
    murder for killing Emanuelle DAmours. He was sentenced to life imprisonment
    with no parole eligibility for 16 years.

[2]

The appellant appeals his conviction on two
    grounds. First, he submits that the trial judge erred in finding that his
    statements were voluntary. Second, the appellant contends that the trial judge
    erred in permitting the jury to find that the statements were fabricated and to
    use them as evidence of guilt.

[3]

At the conclusion of the appellants
    submissions, we dismissed the appeal. The following reasons explain why we
    reject both grounds of appeal.

FACTUAL BACKGROUND

[4]

Ms. DAmours was found dead in the appellants
    house at about 8:35 a.m. on February 18, 2015. She had been strangled with a
    ligature. The appellant was found, apparently unconscious, with a ligature
    around his neck. Police officers thought that he too was dead. However, when he
    gasped for air, his ligature was removed with a knife and he started to breathe
    on his own.

[5]

The appellant and Ms. DAmours were romantically
    involved, although she had a partner. The appellant helped her out financially.

[6]

From the beginning of the investigation, the
    appellant told the police that he and Ms. DAmours were attacked by an intruder.
    However, the police came to believe that the appellant had killed Ms. DAmours
    and then staged the scene to support the intruder scenario. This was borne out by
    the timeline of events, the appellants communications on social media, the use
    of his cell phone, and forensic evidence.

(a)

The timeline

[7]

Ms. DAmours left her house at about 7:45 p.m.
    on February 17, 2017, leaving her children with a babysitter. She was expected
    home by 11 p.m. When she did not return by 12:15 a.m., the babysitter called
    911 to report her missing.

[8]

The police searched for Ms. DAmours truck.
    They found it in the appellants driveway at 3:30 a.m. There was a purse and
    iPhone inside the truck. The engine was off. However, ice pellets under the
    exhaust pipe suggested that it had been left running for more than 30 minutes.
    The appellants next-door neighbours reported seeing the parked truck with its
    lights on and engine running at 9:00 p.m., 9:30 p.m., 12:00 a.m., and 2:30 a.m.
    The keys to the truck were subsequently found inside the appellants residence,
    which was locked when the police arrived.

[9]

The police knocked loudly on the appellants door
    at 3:30 a.m., 3:45 a.m., 5:15 a.m., and 5:30 a.m. They received no response. They
    called the appellants phone at 4:19 a.m. The phone rang and then closed off.
    The police tried again; this time it would appear that the appellants phone
    was dead. The police knocked again and then breached the door at 8:35 a.m.

[10]

When the police were at the appellants
    residence from 3:30 a.m. onwards, nobody entered or left the house.

(b)

Forensic evidence

[11]

The ligature found around the Ms. DAmours neck
    was a pillowcase. She had hand injuries that were consistent with attempting to
    relieve the pressure from her neck. The appellant had scratches on his neck and
    lower face. DNA evidence established that the appellant could not be excluded
    as the source of blood under Ms. DAmours fingernails, on the ligature, and on
    her jeans.

(c)

Electronic communications

[12]

The appellant sent Facebook messages to a friend
    at 12:02, 12:09 a.m., 12:21 a.m., 12:52 a.m., and 6:14 a.m. The last message
    was sent well after the police had been on the scene and knocking loudly on his
    door. In his messages, the appellant said that someone came into his house,
    tied him up, put something in his mouth, and stole money from him.

[13]

Forensic analysis determined that Ms. DAmours
    phone connected to the WiFi in the appellants house at 9:18 p.m. This was
    after the appellants neighbour first noticed Ms. DAmours truck parked, but
    still running, in the driveway.

[14]

Examination of the appellants phone was even
    more revealing. Forensic analysis proved that the Facebook messages were sent
    from his phone. It also showed that someone physically declined the call made
    to his phone by the police at 4:19 a.m. Evidence also showed that someone was
    using his phone to send, draft, or look at messages between 6:14 a.m. to 6:27
    a.m. The appellants phone was plugged in between 6:14 am. and 7:59 a.m., but
    it was not within arms length of where the police found him with a ligature
    around his neck.

[15]

All of this evidence pointed to the appellant
    placing the ligature around his own neck well after reporting the intruder
    scenario to his friend, and while the police were outside his residence. In his
    closing address to the jury, defence counsel acknowledged that the evidence was
    consistent with the appellant placing the ligature on himself, but that it could
    be evidence that the appellant panicked and tried to reconstruct the situation.

(d)

The appellants statements

At the house

[16]

After the appellant was revived, he told an
    officer, They tied my, they, they tied my hands up and I couldnt breathe and
    I got loose. He told this same officer that he had been seeing Ms. DAmours
    for a while and she was supposed to move in with him. He also said that he and
    Ms. DAmours had been followed and that someone had sent photos of them to Ms.
    DAmours partner. At this point, the appellant was cautioned and all further
    interactions with him were recorded.

[17]

As discussed below, there was a good deal of
    evidence about the appellant feeling cold while he was at the house. He was
    asked to put his shoes on but he refused to do so without first having socks.
    He was told he could not have socks because the house was now a crime scene.
    When he was assessed by paramedics in the ambulance, the appellant
    spontaneously said, We were supposed to die together. He refused to go to the
    hospital.

In the police car and at the police station

[18]

On the way to the station, the appellant spoke
    spontaneously, but did not say much. He said, her [
sic
]

wants to
    run away with me and I didnt touch her.

[19]

At the police station, when identification
    officers went into the interview room to take photographs and obtain DNA, they
    asked the appellant whether he had any questions. He said, alright when I did
    uh tried to  like the thing was hard around her neck so I tried to take it off.
    When he was asked why his eye looked sore, I got punched in the eye. The
    appellant also said something about Valentines Day and that he had sex with her
    and her ex-boyfriends  pretty jealous. He told the officers that he and Ms.
    DAmours were being followed and that proof of that was on his cell phone.

[20]

The appellant was interviewed for about 3 hours
    and 45 minutes by Detective Sergeant Darryl Sigouin. He told the officer that
    Ms. DAmours came to his house earlier in the night. She had a key to his
    house, but he believed he may have left the door unlocked for her. When she
    arrived, they hugged and kissed for 10 to 15 minutes. Ten minutes later,
    someone was knocking on his door. When the appellant answered the door, he was
    punched in the face by a man he did not recognize. He was pushed down the
    stairs and his head went through the drywall. The intruder tied him up and put
    a sock in his mouth when he resisted. Both his hands and Ms. DAmours were
    restrained with zip ties. The intruder said something about cheating and took
    an envelope containing $12,000.

[21]

The appellant said that Ms. DAmours was able to
    loosen his ligature enough so that he could talk a bit. He lost consciousness
    two times and was choking on his vomit for two hours. At least four hours
    later, the appellant went upstairs to get a knife and came back downstairs to
    cut his zip ties. He checked on Ms. DAmours but he did not try to help her
    because she was already dead.

[22]

The appellant repeatedly denied killing Ms. DAmours.
    He provided the same narrative and denial to other officers a few weeks later,
    on March 11, 2015.

ANALYSIS

(a)

Voluntariness

[23]

The appellant contested the admissibility of all
    of his statements on the basis they were involuntary. His approach was
    multi-faceted. However, he focused mostly on the presence of oppressive
    circumstances, including the following: the failure to provide him with socks
    (even though blankets were provided); the delay in obtaining water; not
    allowing him to use the washroom when he asked; and not accounting for his apparent
    fatigue (evidenced by the fact that he repeatedly fell asleep in the hours
    leading up to the formal interview). The appellant also contended that the
    interrogation itself was oppressive.

[24]

On appeal, the appellant submits that the trial
    judge failed to conduct a contextual inquiry; instead, she dealt with the
    evidence in a piecemeal fashion. He further contends that the trial judge
    misapprehended the evidence and failed to consider relevant evidence, resulting
    in an unreasonable decision that the statements were voluntary. We disagree.

[25]

This court recently said in
R. v. Al-Enzi
,
    2021 ONCA 81, at para. 80: Where a trial judge applies the correct test and
    considers all relevant circumstances, deference is owed to the trial judges
    ultimate determination on voluntariness. See also
R. v. Oickle
, 2000
    SCC 38, [2000] 2 S.C.R. 3, at para. 71;
R. v. Spencer
, 2007 SCC 11,
    [2007] 1 S.C.R. 500, at para. 17; and
R. v. Pearson
, 2017 ONCA 389, 348
    C.C.C. (3d) 277, at para. 14, leave to appeal refused, [2017] S.C.C.A. No. 465.

[26]

The trial judge identified the correct legal
    principles for determining voluntariness. Relying on
Oickle
, she
    recognized that determining whether a statement or utterance is voluntary goes
    beyond merely running through a checklist of items. The question is whether the
    Crown has proven beyond a reasonable doubt that the will of the accused person
    is not overborne by the police:
Spencer
, at paras. 13-15.

[27]

The trial judge considered the evidence under
    the headings identified in
Oickle
 threats and promises, oppressive
    circumstances, an operating mind, and police trickery. This is how counsel
    structured their submissions on the
voir dire
.

[28]

The trial judge was especially focused on whether
    oppressive circumstances had any bearing on the will of the appellant. This was
    responsive to the evidentiary foundation on the
voir dire
, and the
    submissions of counsel. She concluded this portion of her analysis by saying,
    at para. 80:

To conclude on the issue of oppression, Mr. Carignan
    was denied socks but he was offered blankets. He was not immediately given
    water or bathroom breaks upon request but did have reasonable opportunities to
    use the washroom. He was given water and Gatorade at reasonable intervals. The
    tone of the interrogation was not overly aggressive. In fact, for the most
    part, it was quite pleasant. The tone became more accusatory and
    confrontational at times, but never intimidating or aggressive.  On the second
    occasion, Mr. Carignan was in the interview room from 20:02 to 23:42. During
    that time he continued to be offered food and drink and was kept reasonably
    comfortable in the circumstances.

[29]

The evidence supported these findings. We reject
    the appellants submission that they were unreasonable. Having applied the
    correct test, they are entitled to deference.

[30]

Having addressed the
Oickle
factors on the
    record before her, the trial judge emphasized, more than once, that she
    considered the overall circumstances in coming to the conclusion that the
    appellants statements were voluntary. As she said in the concluding passages
    of her ruling, at paras. 89 and 98-99):

Considering the overall circumstances
, the question is whether the Crown has proven that the statement was
    given voluntarily.
This must be considered contextually
and keeping in
    mind the Courts twin goals of protecting the rights of the accused without
    unduly limiting societys need to solve crimes.

. . .

Considering all of the circumstances
, I am convinced that the statement was voluntary. I am convinced
    beyond a reasonable doubt that the overall circumstances, in combination, were
    not sufficiently objectionable to affect voluntariness. The circumstances may
    have been unpleasant, however the will of the accused was not overborne by such
    conditions.

I find, beyond a reasonable doubt that the
    statements made during the interviews and interactions considered on this voir-dire
    were given voluntarily by Mr. Carignan. [Emphasis added.]

[31]

The appellant submits that, although the trial
    judge said she considered all of the circumstances, her analysis suggests
    otherwise. We disagree. The trial judge focused on the areas that counsel
    emphasized, but within the context of the broader framework established in the
    case law.

[32]

We dismiss this ground of appeal.

(b)

Fabrication

[33]

The appellant submits that the trial judge erred
    by instructing the jury that it could infer that his statements were not just
    false, but fabricated, and could be used as circumstantial evidence of guilt. He
    submits that the manner in which this issue arose was procedurally unfair
    because the trial judge did not make a fabrication ruling on the voluntariness
voir

dire
. He also submits that there was no independent evidence of
    fabrication, only falsity. We reject these arguments.

[34]

This court held in
R. v. OConnor
(2002),
    170 C.C.C. (3d) 365 (Ont. C.A.), at para. 30, that when the Crown seeks to
    introduce evidence to show that an accused has fabricated out-of-court
    statements, the trial judge should determine whether there is sufficient independent
    evidence of falsity at the admissibility stage: see also
R. v. Hall
,
    2010 ONCA 724, 263 C.C.C. (3d) 5, at para. 164, leave to appeal refused, [2010]
    S.C.C.A. No. 499;
R. v. Clause
, 2016 ONCA 859, 133 O.R. (3d) 321, at
    para. 56. However, the failure to do so is not necessarily fatal.

[35]

In
OConnor
, on a
voir

dire
into voluntariness and whether there had been a breach of s. 10(b) of the
Charter
,
    defence counsel did not object to the proposed use of the statements to
    demonstrate fabrication and there was no formal ruling: at para. 29. The appeal
    was allowed on another basis. Similarly, in
Clause
, Brown J.A. observed
    that the trial judge did not make such a ruling because he was not asked to do
    so; nonetheless, the court dismissed the appeal because there was ample
    evidence of fabrication on the record: at paras. 55-58. The same reasoning was
    employed in
R. v. Pomeroy
, 2008 ONCA 521, 91 O.R. (3d) 261, in which
    Weiler J.A. said, at para. 69: However, because I am of the opinion that such
    evidence did exist, the omission of the Crown to seek such a determination is
    of no import.

[36]

The purpose of making a ruling at the
    admissibility stage is to ensure that the accused person is aware of the case
    to meet, and to prevent the jury from being exposed to statements that have no
    evidentiary value. In this case, although the trial judge did not rule on the
    issue of fabrication, she was not asked to. The appellant now submits that, had
    he been put on notice that his statements could be used as evidence of
    fabrication, he would have approached the case differently. He submits that he
    was denied the opportunity to make full answer and defence by, for example,
    conducting examinations, calling evidence, making submissions as to why a fabrication
    instruction should not be given, or making submissions aimed at rebutting the
    inference that his statement was fabricated. However, when pressed on this
    submission during the oral hearing, counsel gave no concrete examples to
    support this claim.

[37]

The manner in which the trial unfolded on this
    issue reflected no unfairness. The appellant submits that he anticipated that
    his statements were admitted to be used only for the purposes of
    cross-examination in the event that he testified. However, this is not borne
    out by the record. Had this been the case, the statements would likely have been
    marked as lettered exhibits and would only have become known to the jury if and
    when the appellant testified. Instead, the appellants statements were
    introduced before the jury as part of the Crowns case, with no objection from defence
    counsel.

[38]

That a broader use of the statements was
    contemplated is reflected in the pre-charge proceedings. The trial judges
    draft instructions included an instruction on fabrication. When asked about this
    instruction (discussed below), defence counsel expressed no surprise, nor did
    he assert unfairness. Instead, he merely made reference to the submissions he
    had made about the trial judges more general instruction on after-the-fact
    conduct, in terms of word changes and a no probative value instruction on the
    issue of intent.

[39]

Accordingly, there was no procedural unfairness
    in the manner in which this issue developed at trial. As in
Pomeroy
, the
    failure to obtain a ruling was of no import.

[40]

Moreover, there was ample evidence of
    fabrication. The appellant submits that the evidence that the trial judge
    referred to in this context provided no independent proof of fabrication. Her
    instruction referred to the following: (a) evidence of the officers that the
    appellant had a ligature around his neck and his face was dark, grey, or blue
    when they first entered the home; (b) the ligature was so tight it had to be
    cut with a knife to remove it; (c) as soon as the ligature was removed, the
    appellants colour returned to normal; (d) evidence that the appellant rejected
    a call to his phone after the alleged assault; and (e) his evidence that he
    walked upstairs in the middle of the night to get a knife to cut off his zip
    ties.

[41]

The question of whether there is independent
    evidence of fabrication is a case and fact-specific inquiry. Examples of
    independent evidence of fabrication include the following: the timing of the
    statement; whether the statement was given when the accused was not a suspect;
    the scope of exculpation in the statement; the degree of detail provided; and
    post-arrest statements that are inherently implausible: see
OConnor
, at
    paras. 24-31;
R. v. Wright
, 2017 ONCA 560, 354 C.C.C. (3d) 377, at para.
    48.

[42]

There was strong independent evidence of
    fabrication in this case. Recall the appellants Facebook messages to his
    friend, the first of which was sent roughly eight hours before the police
    arrived. Then there was evidence of the appellants use of his phone during the
    night. Evidence concerning Ms. DAmours truck and when it was turned off and
    the subsequent location of her keys was also capable of contributing to a
    conclusion that the statements were fabricated. Finally, and most importantly,
    the observations of the officers on the scene  the appellant with a ligature
    tied so tightly around his neck that his face was blue, hours after the
    apparent intruder attack.

[43]

If accepted by the jury, this body of evidence
    demonstrated an intent to mislead the police or others or an intent to deflect
    suspicion:
OConnor
, at para. 26. Taken together, this was evidence the
    appellant staged the crime scene to look like someone else had killed Ms. DAmours.
    It was cogent evidence of fabrication.

[44]

In her closing address, the Crown reviewed the
    internal and external inconsistencies in the appellants lengthy statement to
    Detective Sergeant Sigouin. However, she concluded this part of her address by
    saying, [T]he Crown does not ask you to convict the accused because of the
    inconsistencies in his statement. The Crown submits that the evidence of  guilt
    is overwhelming on its own.

[45]

There was nothing wrong with this submission.
    However, it necessitated that the jury be provided with guidance on the
    difference between simply disbelieving a statement and finding that it had been
    fabricated. Without it, the jury may have mistakenly equated disbelief with
    fabrication. The trial judge provided such an instruction, which included the
    following passage:

There is a big difference between disbelief of
    a version of events and fabrication of that same version of events. Disbelief
    of a version of events does not mean that the version of events was fabricated.
    Not at all. Evidence that leads you only to disbelieve a version of events is
    not independent evidence that the version of events was fabricated.

[46]

There was no objection to the fabrication
    instruction, either before or after it was delivered. No issue is taken with
    the correctness of this instruction on appeal. It was correct (see
Al-Enzi
,
    at para. 41) and it was balanced.

[47]

We dismiss this ground of appeal.

Disposition

[48]

The appeal against conviction is dismissed.

POSTSCRIPT

[49]

Following the dismissal of his conviction appeal
    at the conclusion of the hearing on June 1, 2021, the appellant filed a Notice
    of Appeal for Inmate Appeal at the institution where he is incarcerated, dated June
    22, 2021. The Notice lists several grounds of appeal against conviction, some
    of which were not advanced as part of his solicitor appeal. The appellant also
    claims that the sentence he received was excessive.

[50]

The appeal against conviction has already been
    dismissed. Therefore, we decline to consider the further grounds of appeal now
    advanced by the appellant. As for the appeal against sentence, the appellant
    did seek leave to appeal his sentence in an Amended Notice of Appeal, filed on
    August 23, 2018. However, a Notice of Abandonment of the sentence appeal was
    filed on October 5, 2020. Consequently, the fitness of the appellants sentence
    was not properly before this court when his appeal was heard.

Doherty J.A.

Gary Trotter J.A.

J.A. Thorburn J.A.


