



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. MacKenzie, 2012
    ONCA 910

DATE: 20121224

DOCKET: C48416

Goudge, Rouleau JJ.A. and Ray J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Richard MacKenzie

Appellant

Timothy Breen, for the appellant

Alexander Alvaro, for the respondent

Heard: November 29, 2012

On appeal from the conviction entered on October 30, 2007
    by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting with a
    jury.

Goudge J.A.:

[1]

On October 30, 2007, after a trial by judge and jury, the appellant was
    found guilty of first degree murder.

[2]

He appeals his conviction, citing a number of errors in the charge to
    the jury and arguing that the verdict was unreasonable.

[3]

For the reasons that follow, I would dismiss the appeal.

[4]

In broad outline, the Crowns evidence was as follows. The deceased was
    an 83-year-old woman who lived alone in her home in central Toronto. She had
    been born without a left forearm. On March 18, 2004 someone broke into her
    home. The intruder covered her mouth with adhesive tape. While taped, she
    vomited. Because the tape prevented her from expelling the vomit, she choked
    and died of asphyxiation. There was no evidence that she had been bound. Her
    body was found in the basement of her home. After she died, a fire was set
    around her body.

[5]

The preceding fall, the appellant was one of the work crew who excavated
    a part of the deceaseds basement.  While working there, he found a bag of five
    Nazi daggers that had belonged to the deceaseds late husband. He stole one and
    sold it to an antique dealer. The appellant told the dealer he may have
    additional items for sale. On the morning of the killing, the appellant placed
    another call to that dealer. The same day, cellular records placed the
    appellant in the vicinity of the deceaseds home.

[6]

The Crown called evidence from Joseph Cachia and Joanne MacKenzie (no
    relation to the appellant), who said that the appellant told them he had
    entered the deceaseds home in an attempt to steal more property. She had
    surprised him in the basement, but dropped to the ground during the
    confrontation. He thought she was dead. He panicked and set the fire to cover
    his tracks. MacKenzies evidence was that the appellant said he never intended
    to kill the woman and had even attempted suicide afterwards.

[7]

The pathology evidence called by the Crown was that there were no
    significant external indications of blunt force injury or penetrating injury.
    Death occurred before the fire was set. The cause of death was asphyxiation due
    to the aspiration of gastric contents. Liquid stomach contents were observed in
    the nostrils and the mouth of the deceased. It was reasonably plausible that
    the vomiting related to the emotional distress of being gagged. If the victim
    was conscious prior to choking, air hunger would have produced extreme
    distress likely visible to an observer. If the victim was unconscious prior to
    choking, external signs of distress would be less obvious, although either
    conscious or unconscious, choking could have produced a seizure. The bruising
    of the victims tongue correlated quite well with a seizure but could also have
    occurred while the victim was struggling against the gag. The process from
    airway obstruction to death would have been rapid.

[8]

The defence called no evidence.

[9]

The Crowns theory was that the appellant was the intruder. He entered
    the deceaseds home on March 18, 2004 and placed the adhesive tape over her
    mouth. The Crown expressly conceded that the act of applying the gag could not
    support an inference of an intention to kill. The Crown said the appellant was
    present when the decease vomited and died and in preventing her from removing
    the gag or in failing to do so himself, the appellant possessed the intent
    required for murder. Since the murder occurred in the course of the unlawful
    confinement of the deceased, the appellant was guilty of first degree murder.

[10]

At
    trial, the appellant conceded that the intruder caused the deceaseds death by
    placing the gag over her mouth. However, his defence was that the prosecution
    had not established beyond a reasonable doubt that he was the intruder.

[11]

Because
    much of the appellants case in this court rests on criticisms of certain
    aspects of the instructions that the trial judge gave to the jury, it is
    helpful to outline the parts of the charge most relevant to his arguments.

[12]

The
    trial judge began with the usual general instructions to the jury on their role
    as the final judges of the evidence, their assessment of the credibility of
    witnesses, the presumption of innocence, the burden of proof, the meaning of
    reasonable doubt, and the proper approach to fact-finding. He then made clear
    the two essential matters that the Crown had to prove beyond a reasonable doubt
    to establish murder: first, that that appellant was the person who unlawfully
    killed the deceased by placing the gag over her mouth, thus causing her death;
    and second, that sometime after doing so, he possessed the intention to cause
    her death or bodily harm that he knew was likely to cause death. Identity and
    intention were thus the two essential matters to be proven beyond a reasonable
    doubt in this case.

[13]

After
    reviewing the evidence he considered most relevant to identity, the trial judge
    turned to intention. He first described what he called hard or undisputed
    facts relevant to that issue. He referred to the intruder entering the house,
    then gagging the deceased who, most likely while conscious, became agitated,
    vomited and eventually died. Finally he referred to the intruder building a
    fire around her body.

[14]

The
    trial judge went on to outline three scenarios of may have happened that day.
    These were for the jury to consider in addressing the issue of intention:

(a)     The
    intruder was present when the deceased, who was conscious, became emotionally
    agitated, started to vomit and then died. On this scenario, the jury could
    infer beyond a reasonable doubt that the intruder intended to kill the
    deceased.

(b)     The
    intruder was present, but the deceased was unconscious when she started to
    vomit. On this scenario the jury could still find the intention for murder
    beyond a reasonable doubt, but only after carefully considering whether the
    intruder would have realized that she was in physical distress.

(c)     The
    intruder was not present when the deceased began to vomit and died. On this
    scenario the intruder could not have formed the intention required for murder.

[15]

The
    trial judge then instructed the jury on the meaning of unlawful confinement
    that would elevate the killing to first degree murder. After reviewing the
    positions of the Crown and the defence, he closed by summarizing these various
    scenarios once again.

ANALYSIS

First Issue: The Trial Judges Review of the Evidence

[16]

The
    appellant argues that the trial judges review of the evidence was inadequate
    in three respects.

[17]

He
    says that the hard and undisputed facts referred to by the trial judge
    overstated the certainty of the evidence. In particular, he says that the
    pathology evidence was that agitation was not necessarily the cause but only
    one of a number of possible causes of the vomiting, that when she vomited it
    was not most likely the deceased was conscious, but could have been either
    conscious or unconscious, and that death would follow choking rapidly not just
    eventually. The appellant also says that in describing the various scenarios
    the trial judges references to the deceased having a seizure and to the
    intruder most likely being present were tainted in the same way.

[18]

In
    my view, while the evidence was rather less certain on these points than the
    charge reflects, the trial judge made clear in his general instructions that
    the jury was bound to act on their own view of the evidence, not his. There was
    no objection to the trial judges reference to hard and undisputed facts.
    Moreover, reading the charge as a whole, I think it apparent that when the
    trial judge moved to the various scenarios he was not describing facts he
    viewed as hard and undisputed. In the end, it was clear to the jury that in
    addressing intention they were obliged to determine whether or not the victim
    had experienced any form of distress following the placement of the gag,
    whether the appellant was present when the distress occurred, and whether he
    was able to observe the distress. The jury would have understood that these
    were the key factual questions it had to address.

[19]

The
    appellant also argues that the trial judge failed to review in any detail the
    evidence that could support the appellant not being present when the deceased
    vomited. In my view, this was not necessary. This aspect of the charge
    attracted no objection. The relevant evidence was neither complicated nor
    disputed. Defence counsels primary position was that the appellant was not the
    intruder but counsel also described for the jury why they could find that the
    intruder was not present when the victim vomited. In the circumstances, I would
    not fault the trial judge for leaving to counsel the task of organizing the
    evidence into their respective theories.

[20]

Finally
    the appellant says that the trial judge should have reviewed for the jury the
    appellants statements to Cachia and MacKenzie and invited them to consider the
    relevance of those statements to the appellants intention. In my view, these
    statements were not consistent only with the appellant not intending to kill
    the victim. They were at best equivocal on the issue of intention. In
    particular, they constituted evidence that the deceased died in the appellants
    presence. The appellant suffered no prejudice from the lack of review of these
    statements.

[21]

In
    short, none of the appellants concerns about the trial judges review of the
    evidence provides a basis for appellate intervention.

Second Issue  The Legal Duty to Act

[22]

In
    the course of his charge, the trial judge told the jury that a person who
    placed adhesive tape over an elderly persons mouth, and who then became aware
    that the elderly person was in distress, was under a legal duty to remove it.
    The appellant says that no such duty exists in Canadian criminal law such that
    a breach can serve as the
actus reus
of the offence and that this aspect
    of the charge also obscures the mental element required for murder.

[23]

I
    do not read the charge quite this way. The trial judge did not attempt to set
    up an unlawful failure to remove the tape as the
actus

reus
of this offence. Apart from his relatively brief reference to the legal duty to
    act, throughout his charge, the trial judge clearly instructed the jury that
    the placing of the tape over the mouth of the victim, and then preventing its
    removal thereby causing her asphyxiation and death, was the
actus

reus
for murder. As well, in his brief reference to the legal duty to act, the trial
    judge reiterated that the intention required was that the victim die or suffer
    bodily harm that the perpetrator knew was likely to cause death or was reckless
    whether death ensued. The reference to the legal duty to act did not obscure
    the charge concerning either the
actus reus
or the
mens rea
.

Third Issue  Admissibility of Cachias Statements to the
    Police

[24]

The
    appellant argues that the trial judge erred in admitting the evidence of
    Detective Nealon concerning the statements made to him by Cachia. The appellant
    says that this was prejudicial because it tended to support the credibility of
    Cachias in-court evidence.

[25]

Again
    I do not agree. The detectives evidence was clearly admissible to show that
    Cachia had knowledge from the appellant that was not available in the public domain.
    The detectives evidence was therefore admissible to rebut the defence
    suggestion that Cachia had fabricated his evidence about what the appellant had
    told him. In addition, the trial judge gave the jury clear instructions, both
    mid-trial and in his charge, that the evidence of Cachia having previously made
    statements similar to his testimony in court could not be used to support the
    credibility of that testimony. This addressed the very risk that the appellant
    raises.

Fourth Issue  Unreasonable Verdict

[26]

The
    appellant argues that the verdict of murder depended on a finding that the
    appellant was present when the deceased vomited and asphyxiated. He says that
    there was no direct evidence of this nor could it be reasonably inferred. Hence
    his conviction is unreasonable.

[27]

I
    do not agree. Although there was no evidence of physical restraint of the deceased,
    it was entirely reasonable for the jury to infer that the appellant was
    present. The air hunger that the gagged victim would have experienced on vomiting
    would have driven her to tear the tape off to save herself unless the appellant
    had been there to keep her from doing so.

Fifth Issue  The Trial Judges Use of Various Scenarios

[28]

The
    appellant says that when he turned to the issue of intention, the trial judge
    erred in three different ways by describing for the jury the three different
    scenarios together with the available verdicts for each.

[29]

First,
    the appellant argues that the trial judge presented the case to the jury as a
    choice they must make between these scenarios and that this invaded their fact
    finding function.

[30]

I
    do not agree that the trial judges jury approach had this effect. He made
    clear to the jury that regardless of his view of the facts, it was their duty
    to reach their own conclusions about what happened. After he went on to
    describe the three scenarios, counsel raised no objection to this approach.
    Once the jury found the appellant to be the intruder, their task was to
    determine on all the evidence what occurred that day in the deceaseds house
    and realistically these three scenarios were the alternatives. Moreover two of
    them  that when she vomited the appellant was present but the deceased was
    unconscious, or that the appellant was not present  were favourable to the
    appellant in that they offered a basis upon which the jury could have a
    reasonable doubt on the question on the intention required for murder.

[31]

Then
    the appellant argues that in framing the three scenarios, the trial judge
    effectively made the appellants presence when the deceased vomited an
    essential element of the offence of murder. However he had never told the jury
    that presence had to be established beyond a reasonable doubt.

[32]

I
    do not read the charge that way. The trial judge presented the three scenarios
    to the jury as three ways that the evidence might be viewed in their
    consideration of intention. If the jury found the evidence to support a
    particular scenario, their task was to decide on that scenario whether,
    considering all the evidence, the requisite intention had been established
    beyond a reasonable doubt. While two of the scenarios required a finding of the
    appellants presence, presence alone did not establish intention. The trial
    judge instructed the jury to consider all of the evidence, including for example,
    signs of the victims distress that would have been observable to the
    appellant.

[33]

Since
    presence did not establish intention, it did not rise to an essential element
    of the offence. The case is different from
R. v. Quidley
, [2008] 232
    C.C.C. (3d) 255 (Ont. C.A.), where the voice identification evidence and the
    translation of the recorded conversations were sufficiently central to the
    prosecutions case that they became for all practical purposes almost the same
    as the essential elements of the offence. The charge erred by suggesting that
    an inadequately low burden of proof was sufficient for these two specific
    matters. In this case, there was no similar misdirection. The jury was required
    to consider other factors, not just the appellants presence in concluding
    whether the intention for murder was established beyond a reasonable doubt. On
    these facts it would not have been proper to instruct the jury that presence
    alone had to be established beyond a reasonable doubt in order to convict the
    appellant of murder.

[34]

Finally,
    the appellant argues that by presenting the scenarios to the jury the trial
    judge invited them to examine the evidence in a two-stage process. That is,
    first the jury was instructed to determine if the appellant was present when
    the victim began to vomit and hence which scenario applied. Then the jury was
    told that having determined the question of presence, they should go on to
    decide if the intention required for murder was proven beyond a reasonable
    doubt. The appellants submission is that this way of proceeding removed any
    potential concerns about the evidence of presence from the jurys application
    of reasonable doubt to the issue of intention.

[35]

In
    my view the trial judges approach did not carry that risk. He told the jury
    that if they could not find that the appellant was present when the deceased
    began to vomit, they could not find the intention required for murder but only
    for manslaughter. While two of the scenarios required presence, choosing
    between the two required the jury also to determine whether the deceased was
    conscious or not. Thus presence did not dictate which scenario applied.

[36]

More
    importantly, the jury understood that within each scenario, they were to
    consider the totality of the evidence, including the evidence about the
    appellants presence in concluding whether they were left with a reasonable
    doubt about intention. They would not have excluded presence from this task.
    Thus I do not think that the trial judge invited the jury to engage in the
    two-stage process of considering the evidence that the appellant suggests.

[37]

In
    summary, I find no error in the trial judges use of the various scenarios in
    his charge. Since this argument, like the others raised by the appellant must
    be rejected, I would dismiss the appeal from conviction.

Released: December 24, 2012 (S.T.G.)

S.T. Goudge J.A.

I agree Paul Rouleau J.A.

I agree T. Ray J. (
ad hoc
)


