



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2015 ONCA 831

DATE: 20151202

DOCKET: C57351

Hoy A.C.J.O., Laskin and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Smith

Appellant

Catriona Verner, for the appellant

Howard Leibovich, for the respondent

Heard: October 27, 2015

On appeal from the conviction entered by Justice Robert
    B. Reid of the Superior Court of Justice, sitting with a jury, on February 26,
    2013.

Pardu J.A.:

[1]

The appellant admits that he chocked the victim, dragged her into the
    basement of a store, and then strangled, punched, and kicked her. The victim
    died two days later, as a result of the injuries inflicted by the appellant.

[2]

At trial, the Crown alleged that the appellant was guilty of first
    degree murder. The appellant pled guilty to the offence of manslaughter, but
    denied that he had the necessary
mens rea
for murder. The only
    substantial issues at trial were whether he had the mental state for murder and
    whether it was first degree murder.

[3]

The appellant advances three grounds on appeal:

(1)

The
    trial judge erred by leaving unlawful confinement to the jury as a basis for
    first degree murder.

(2)

The trial judge erroneously gave the jury the impression that the
    appellant conceded that he had the intent required for murder.

(3)

The
    trial judge did not appropriately relate relevant evidence to the
mens rea
issue in his charge.

A.

Factual background

[4]

The following facts were not in dispute at the trial.

[5]

On May 25, 2010, the appellant was suffering from his heavy consumption
    of alcohol and cocaine the night before. His landlord was threatening to evict
    him if he did not pay the rent and he was experiencing symptoms of cocaine
    withdrawal. Consequently, the appellant was feeling paranoid and desperate for
    money.

[6]

The appellant decided to rob a store. He started looking for a store
    without any security cameras. Over a period of about an hour, he visited 20-30
    stores. He decided to rob the store where the victim was working as a shop
    attendant.

[7]

According to the appellant, his plan was to ask the victim to get an
    item from the back of the store and, while she was at the back, to open the
    cash register and run out with the money. The victim became suspicious of the
    appellant and started screaming when he approached her. The appellant put the
    victim in what he described as a sleeper hold, grabbing her neck and choking
    her, to try to render her unconscious.

[8]

The appellants plan did not work, and the complainant continued
    screaming. The appellant then began dragging the victim down the stairs into the
    shops basement. Halfway down, she stumbled and fell, landing on the basement
    floor. The accused went after her to the basement. The victim tried to get up,
    but the appellant prevented her from doing so. The appellant started strangling
    the victim with the headscarf she had been wearing. The victim continued making
    some noise, and so the appellant punched her and kicked her in the head four or
    five times. The appellant shattered her upper and lower jaw bones, broke her
    nasal bone, and partially tore off an ear.

[9]

The appellant stopped attacking the victim and left once she stopped
    making any noise. The victim died two days later, of strangulation and blunt
    facial trauma.

B.

analysis

(1)

Unlawful confinement

[10]

Section
    231(5)(e) of the
Criminal Code,
R.S.C. 1985, c. C-46, provides that
    murder is first degree murder when death is caused while committing or
    attempting forcible confinement.

[11]

Forcible
    confinement occurs where, for any significant length of time, the victim is
    coercively restrained contrary to her wishes so that she could not move about
    according to her own inclination and desire:
R. v. Pritchard
, 2008
    SCC 59, [2008] 3 S.C.R. 195, at para. 25. In order to establish a charge of
    first degree murder on the basis that the accused committed murder while
    committing or attempting forcible confinement, the act of killing and the act
    of confinement must be part of a single transaction, but must amount to
    distinct acts, such that the act of killing and the confinement are not the
    same:
R. v. Parris
, 2013 ONCA 515, 300 C.C.C. (3d) 41, at paras. 50-53.
    The acts of confinement must go beyond the acts causing death.

[12]

The
    appellant submits that, in this case, unlawful confinement and first degree
    murder should never have been left to the jury, and that the conviction for
    first degree murder is therefore unreasonable. The appellant submits that
    applying pressure to the victims neck with the sleeper hold in the store and
    strangling, punching and kicking her in the basement were all one event
    amounting to the killing. Therefore, the appellant submits, there was no
    unlawful confinement over and above the acts that resulted in the victims
    death.

[13]

I
    disagree. It was open to the jury to conclude that putting the victim in the
    sleeper hold in the store and dragging her down the stairs amounted to unlawful
    confinement, which was both part of the same course of conduct leading to the
    victims death, and also distinct from the strangulation, punching and kicking
    which occurred in the basement. The restraint in the store was, according to
    the appellants own evidence, undertaken to stop the victim from screaming, and
    presumably to enable him to commit the robbery. After the victim landed on the
    basement floor, the appellant continued after her. His ensuing conduct in
    strangling her with her scarf and punching and kicking her could reasonably be
    viewed by a jury as acts distinct from putting her in, and maintaining her in,
    a sleeper hold and dragging her part way down the basement stairs.

[14]

Moreover,
    the present case is very similar to
Parris
. There, the victim was
    forcibly removed to a basement before being killed. At para. 57, Watt J.A.
    upheld a conviction for first degree murder on the basis that:

The charge made it clear that the unlawful confinement and
    killing must be separate acts, as well as essential components of a single
    ongoing transaction. The "distinct act" requirement demands only that
    the confinement be distinct and independent from the act of killing. That was
    so here. The unlawful confinement was not inherent in the very act of killing,
    but rather preceded it as Malcolm was removed from the main floor to the
    basement where he was eventually killed. [Citation omitted.]

(2)

Trial judges instructions in respect of intent

[15]

The
    appellant also submits that the trial judge erred in relating the evidence to
    the
mens rea
requirement for murder. Specifically, the appellant
    argues that the trial judges instructions implied that the appellant had
    admitted having the requisite
mens rea
.

[16]

Section
    229(a) of the
Criminal Code
provides that culpable homicide is murder:

(a) where the person who causes the death of a human
    being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows
    is likely to cause his death and is reckless whether death ensues or not.

[17]

The
    trial judge essentially took the first definition of intent, means to cause
    death, away from the jury, likely because of the appellants testimony that he
    did not intend to cause the victims death. He instructed the jury to focus on
    the second branch identified above. This was favourable to the accused, as it
    would have been open to the jury to infer from his acts that the appellant had
    the requisite intent to kill despite his denials.

[18]

However,
    the appellant takes issue with the following passage from the trial judges
    charge to the jury:

Set against the intoxication evidence as to the mental element
    required for murder was the information elicited by the Crown on
    cross-examination of [the appellant] to the effect that he had various
    opportunities to leave the scene prior to the murder, for example: when the
    sleeper hold did not work; and the victim stumbled and fell to the bottom of
    the stairs
Crown counsel suggested to [the appellant]
    that he knew that tying the headscarf around her neck could kill [the victim],
    as could the punching and kicking to the head and yet [the appellant] chose to
    continue
. As well, [the appellant] acknowledged that he stopped the
    assault immediately upon the victim becoming quiet, which the Crown suggested
    showed that [the appellant] was fully in control of his actions. [Emphasis added.]

[19]

The
    highlighted portion of this passage in the charge was based on answers given by
    the appellant in cross-examination, when asked about his knowledge of the
    effects of a sleeper hold and the act of choking someone with a scarf:

Q. You knew it could put someone unconscious, right?

A. Correct.

Q. You know if you keep someone unconscious long enough theyre
    going to die, right?

A. I know that.

Q. Sorry?

A. I know that, yes.

Q. You know that, right? And you knew that then, right?

A. Correct.

Q. And you know tying a scarf around someone neck, someones
    neck and pulling it tight will also cut off their airways right?

A. Correct.

Q. And if you do that long enough they will die as well, right?

A. Correct.

Q. And youre well aware of that, right?

A. Yes I am.

[20]

In
    my opinion, the trial judges instructions correctly summarized the exchange
    between Crown counsel and the appellant. Furthermore, it would have been
    abundantly clear to the jury from the instructions given to them that the
    appellant did not concede that he had the intent required for the murder.

[21]

The
    trial judge instructed the jury:

Of course if you believe the testimony of [the appellant] that
    he did not have the state of mind necessary to commit the offence of murder as
    charged, and subject to my further instructions to you about the law, you must
    find him not guilty of that charge. However, even if you do not believe the
    testimony of [the appellant], if it leaves you with a reasonable doubt about an
    essential element of the offence charged, you must find him not guilty of that
    offence. Even if the testimony of [the appellant] does not raise a reasonable
    doubt about an essential element of the offence charged, if after considering
    all the evidence you are not satisfied beyond a reasonable doubt of his guilt,
    you must acquit.



Based on the testimony of [the appellant] in court and the
    video of his interview by Detective Rodzoniak, [the appellant] denied having an
    intention to kill. The question of intent to kill is your decision to make on
    all the evidence. However, I suspect that you will concentrate your
    deliberations on the second option, namely whether the Crown has proved beyond
    a reasonable doubt that [the appellant] meant to cause [the victim] bodily harm
    that he knew was likely to cause her death and was reckless whether death
    ensued or not.



You may take into account, as a matter of common sense, that a
    person usually knows what the predictable consequences of his or her actions
    are and means to bring them about. However, you are not required to draw that
    inference about [the appellant]. Indeed, you must not do so if, on the whole of
    the evidence, including the evidence of the presence of alcohol, cocaine,
    and/or steroids in [the appellants] body, you have a reasonable doubt about
    whether [the appellant] had the intent required for murder.



Crown Counsel must prove beyond a reasonable doubt that [the
    appellant] had that intent. To decide whether he did, you should take into
    account the evidence about his consumption of alcohol and drugs, along with the
    rest of the evidence, including the evidence of steroid use, that throws light
    on his state of mind at the time the offence was allegedly committed.

To determine [the appellants] state of mind, what he meant to
    do, you should consider all the evidence.



The evidence of [the appellant] is that he drank a substantial
    amount of alcohol over the preceding night There is no evidence that the
    accused eliminates alcohol at an exceptional rate. It is a fair assumption,
    therefore, that [the appellant] was substantially intoxicated at the time of
    the offence. He also gave evidence that he had consumed about three-and-a-half
    grams of cocaine during the night, that he was an experienced consumer of
    cocaine and that it appeared to be of satisfactory potency. Although he
    admitted in his initial statement that he was coming down, that itself is a
    condition that has emotional and psychological impact.

This evidence is assisted by the expert opinion of Dr. Gojer,
    a forensic psychiatrist, who testified that withdrawal from cocaine often
    involves symptoms of paranoia, panic, feeling sketched and impulsivity; all
    emotions that [the appellant] said he experienced at this time.



It is the position of the defence that when [the appellant]
    assaulted the victim, he did so while under the influence of alcohol and other
    chemical substances, so that he responded with an irrational degree of violence
    to her screaming, that he never intended the death of the victim and that he
    did not foresee that what he did to her might cause her death.

(3)

Relation of evidence to the issue

[22]

The
    appellant also argues that the trial judge did not sufficiently relate the evidence
    presented at trial to the issue of whether the appellant had the requisite
mens
    rea.
I would reject this submission as well.

[23]

The
    defences position at trial was that the effects of the drugs and alcohol
    consumed by the appellant and his state of panic raised a doubt as to whether
    the appellant had the intent required for murder. In my opinion, the trial
    judge presented a sufficient overview of the relevant evidence.

[24]

As
    noted by Bastarache J. in
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R.
    523, at para. 57, [so] long as the evidence is put to the jury in a manner
    that will allow it to fully appreciate the issues and the defence presented,
    the charge will be adequate. In this case, trial judge reviewed the relevant
    expert evidence led on behalf of the appellant and accurately summarized the
    defences position at trial.

[25]

In
    assessing the sufficiency of the trial judges overview of the evidence, it
    should be noted that, this trial lasted only eight days. The evidence would
    have been relatively fresh in the jurys mind. Moreover, defence counsel had
    multiple opportunities to review drafts of the charge and made no objection to
    this part of the charge. While not conclusive, this lends force to the Crowns
    submission that the jury was not misled in respect of the issues at stake:
R.
    v. Bouchard
, 2013 ONCA 791, 305 C.C.C. (3d) 240, at paras. 38-39.

C.

disposition

[26]

For
    these reasons, I would dismiss the appeal.

Released: (J.L.) December 2, 2015

G. Pardu J.A.

I agree Alexandra
    Hoy A.C.J.O.

I agree John Laskin J.A.


