



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Groulx, 2013 ONCA 690

DATE: 20131113

DOCKET: C54297

Weiler, Watt and Pepall, JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Pierre Groulx

Applicant/Appellant

Melanie Webb, for the appellant

Lisa Joyal, for the respondent

Heard: November 4, 2013

On appeal from the conviction entered on April 7, 2011
    and the sentence imposed on June 10, 2011 by Justice
Robert
    Pelletier
of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant, 43 year old Pierre Groulx, appeals his second degree
    murder conviction and sentence in the death of his mother, Yolande Groulx.

The Conviction Appeal

[2]

All of the grounds of appeal with respect to conviction relate to the
    trial judges charge to the jury. They are:

·

The trial judge erred in failing to put the defence of
    intoxication to the jury where a clear evidentiary foundation existed.

·

The trial judge did not sufficiently charge the jury to eliminate
    the injurious prejudice created by the admission of the prior discreditable
    conduct.

·

The trial judge erred in failing to adequately instruct the jury
    on the intent required for second degree murder.

·

The trial judge erred in failing to instruct the jury that an
    unlawful act must also be one that is objectively dangerous.

·

The trial judge erred in failing to instruct the jury that if
    they had a reasonable doubt between murder and manslaughter, they should return
    a verdict of manslaughter.

The Sentence Appeal

[3]

In relation to the sentence appeal, the appellant submits that the 14
    year period of parole ineligibility imposed is harsh and excessive.

Discussion

[4]

We did not call upon the Crown to respond to the appellants argument as
    we were of the opinion that there was no merit to any of the grounds of appeal.
    At the conclusion of the appeal, we dismissed the appeal with reasons to
    follow. These are those reasons.

The Conviction Appeal

Lack of instruction on intoxication

[5]

It is the duty of the trial judge to put to the jury all defences
    arising from the evidence, even if not advanced by the defence at trial. See
R.
    v. Squire
, [1977] 2 S.C.R. 13.

[6]

In this case, not only was intoxication not advanced as a defence, trial
    counsel specifically advised the trial judge early in the trial and again during
    the pre-charge conference that intoxication was not a live issue. The decision
    of defence counsel not to put forward a defence of intoxication was a tactical
    one. The appellants position was that his mother died as a result of a fall
    she sustained when he reflexively pushed her away from him due to her body
    odour and she fell into the faceplate of the kitchen stoves oven door thereby
    suffering cuts to her head from the glass which broke. She went to the bathroom
    to examine herself and asked the appellant to cut some of her hair away so that
    she could see the injury. The appellant then left the bathroom and went to bed.
    He heard his mother fall down and called out to her, but she said she was
    alright. In the morning, he found her dead.

[7]

On appeal, counsel for the appellant, who was not his counsel at trial,
    submits that the trial judge ought to have put the defence of intoxication to
    the jury because there was a sufficient evidentiary foundation for it.

[8]

The basis for the appellants submission in part arises out of the
    evidence of a former girlfriend, Ms. Cope. She testified that the appellant
    became very violent and aggressive when drinking and that he was always under
    the influence of alcohol when he and the deceased would argue. On a prior
    occasion the appellant had choked the deceased and did not remember doing so due
    to his advanced state of intoxication. In addition, the appellant submits that an
    incoherent voicemail he left for Ms. Cope on the evening of the deceaseds
    death, which includes an admission of drinking, supports the defence.

[9]

On the night the deceased died, it was common ground that the appellant
    arrived home after drinking eight or nine beers with his friend, Derrick
    Collins. Still, Mr. Collins testified that he believed that it was safe for the
    appellant to drive home. The appellant himself gave almost no evidence in his
    examination in chief about his alcohol consumption. He confirmed on
    cross-examination that he did not drink excessively that night because he
    wanted to be clear headed if called in to work the next day. He did not assert
    to anyone that intoxication was
    the reason for, or even contributed to his actions. He described in detail his
    condition at the time of the incident and the events before, during and after
    the crime.

[10]

In
    the circumstances we disagree that the trial judge was obliged to put the
    defence of intoxication to the jury. The medical evidence established that the
    deceased, who weighted only 81 pounds, died from either manual strangulation or
    from acute traumatic injuries to the brain. There was no evidentiary foundation
    upon which a jury could properly find that the appellant could not, or did not,
    comprehend the natural consequences of his conduct.

Instruction on discreditable conduct

[11]

The
    appellant submits that the trial judge erred in not cautioning the jury about the
    use they could make of evidence of prior misconduct by the appellant. The
    appellant says it was incumbent on the trial judge to instruct the jury that
    the evidence of bad character could not to be used to show that the accused
    would be more likely to have committed the offence in issue.

[12]

On
    the whole, the discreditable conduct did not consist of acts of general bad
    behaviour, but rather went to the appellants animus towards his mother and
    motive. As such, it was admissible evidence and there was no need for the trial
    judge to give any such caution. See
R. v. Pasqualino
(2008), 233 CCC
    (3d) 319 (Ont. C.A.) at paras. 17, and 65-70.

[13]

The
    appellant further submits that the trial judges instruction on discreditable
    conduct was inadequate given the extreme prejudicial effect of the
    discreditable conduct. The trial judge ought to have repeated his mid-trial
    instruction to the jury as opposed to simply referencing this earlier
    instruction and supplementing it in his charge to the jury.

[14]

The
    trial judges mid-trial and final instructions to the jury were adequate. The
    trial judge delivered a lengthy mid-trial instruction about bad character
    evidence and propensity reasoning when the jury first started to hear evidence
    of prior discreditable conduct. The instruction clearly identified the type of
    evidence in question and properly explained the permissible and prohibited uses
    of the evidence. He warned the jury that the appellant was not on trial for his
    character or past misconduct. The appellant raised no objection to these
    limiting instructions at trial, despite having the opportunity to comment on
    them prior to as well as after delivery.

Instruction on the requisite intent for murder

[15]

Although
    the trial judge frequently referred to the requisite intent and recklessness in
    his charge, the appellant identifies several places in the jury charge where
    the trial judge did not mention the recklessness component in the definition of
    s. 229 (a)(ii) of the
Criminal Code
. The jury would not have been left
    in any doubt as to the requisite intent for murder: subjective intent to cause
    bodily harm and subjective foresight of the likelihood of death. The trial
    judges first and final instructions, his decision tree, as well as his
    instruction respecting the decision tree all tracked the language of s. 229(a)(ii)
    of the
Criminal Code
. In nine of the twelve allegedly incorrect
    instances identified by the appellant, the trial judge said: means to cause
    him bodily harm that he knows is likely to cause his death and went ahead
    anyway. We note there was no objection from defence counsel to the
    instruction. Having regard to the medical evidence, this was not a case where a
    more fulsome explanation of recklessness would have enured to the appellants
    benefit.

[16]

In
    any event, the component of recklessness within s. 229(a)(ii) has effectively
    been rendered an afterthought and has assumed a subservient role. See
R.
    v. Nygaard
[1989] 2 SCR 1074;
R. v. Cooper
[1993] 1 SCR 14; and
R.
    v. Portillo
, supra.

Lack of instruction that an unlawful act must also be
    objectively dangerous

[17]

The
    trial judges charge on the offence of manslaughter did not instruct the jury
    that an unlawful act is one that must be objectively dangerous, and that they
    must be satisfied that a reasonable person would have realized he or she was
    exposing the deceased to the risk of bodily harm that was neither trivial nor
    transitory in nature at the time of the unlawful act.

[18]

In
    our opinion, the appellant was not prejudiced by this omission. The trial judges
    charge made clear that the appellant was entitled to an acquittal if he acted
    out of reflex. The jury rejected the appellants evidence that he acted out of
    reflex and found that he had committed an unlawful act. The medical evidence
    leads to no other conclusion than that the acts were objectively dangerous and
    a reasonable person would have realized that these activities would subject the
    deceased to a risk of bodily harm that was more than trivial or transitory.

Failure to instruct the jury that if they had a reasonable
    doubt between murder and manslaughter they should return a verdict of
    manslaughter

[19]

Read
    as a whole, the charge conveyed to the jury that they could only convict the
    appellant of murder if they were satisfied beyond a reasonable doubt that he
    had either state of mind required to make the unlawful killing murder. They
    were also instructed that if they had a reasonable doubt about whether the
    appellant had a state of mind required to make the unlawful killing murder,
    they should find the appellant not guilty of murder but guilty of manslaughter.
    No further instruction was required.

[20]

The
    appeal as to conviction is dismissed.

The Sentence Appeal

[21]

The
    appellant submits that the parole ineligibility order imposed was unduly harsh
    and excessive for a number of reasons.

[22]

First,
    the appellant had only a minor criminal record. The trial judge erred in
    imposing a period of parole ineligibility of fourteen years considering that
    the appellants criminal record only included a conviction for impaired driving
    and flight while pursued by a peace officer. These do not indicate that the
    appellant has a propensity for violence.

[23]

Second,
    the trial judge failed to ask the appellant if he wished to address the court
    prior to delivering his sentence. The appellants inability to address the
    court contributed to the trial judges determination that he expressed no
    remorse for his actions.

[24]

Third,
    the trial judge failed to take into consideration the impulsive and spontaneous
    nature of the attack. The appellant is a good candidate for rehabilitation.

[25]

We
    agree that it was an error for the trial judge to fail to ask the appellant
    whether he wished to say anything before imposing the sentence. However, no
    objection was made by trial counsel during the sentencing hearing and before
    us, the appellant does not seek to introduce as fresh evidence any expression
    of remorse.

[26]

We
    note that in
R. v. McKnight
(1999), 135 C.C.C. (3d) 31, this court
    held that in cases involving brutal second degree murder in a domestic or
    family context, a 12-15 year parole ineligibility period is generally applied.
    The period of parole ineligibility is within that range.

[27]

Section
    745.4 of the
Code
directs that the court must consider a variety of
    factors in determining parole ineligibility, one of which is the jurys
    recommendation. The majority of the jury recommended 15 years of parole
    eligibility. The trial judge was entitled to take this into consideration. Even
    though the trial judge erred in not asking the appellant if he wished to say
    anything before sentence, the period of parole ineligibility imposed was fit.

[28]

While
    leave to appeal sentence is granted, the appeal as to sentence is dismissed.

[29]

Accordingly,
    the appeal is dismissed.

K.M. Weiler J.A.

David
    Watt J.A.

S.E.
    Pepall J.A.


