



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jeanvenne, 2016 ONCA 101

DATE: 20160205

DOCKET: C57475

Weiler, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

André Jeanvenne

Appellant

Ian R. Smith and Amy J. Ohler, for the appellant

Michael Bernstein, for the respondent

Heard: January 21, 2016

On appeal from the conviction entered on July 5, 2012 by
    Justice Colin D.A. McKinnon of the Superior Court of Justice, sitting with a
    jury.

Weiler J.A.:

A.

Overview

[1]

The police suspected that the appellant was involved in the unresolved
    murders of Donald Poulin in 1983, and Michel Richard in 2000. The RCMP set up a
    fictitious criminal organization, commonly known as a Mr. Big operation, in
    which an apparently successful crime boss hired the appellant, and, having
    obtained his trust, the appellant allegedly confessed to the two murders. In
    2005, a jury convicted the appellant of two counts of first-degree murder based
    on evidence from that operation.

[2]

This court set aside both convictions on the basis that the trial judge
    erred by failing to grant an application for severance of the two murder
    counts. The murders occurred 17 years apart, had no similarities and no
    forensic evidence linked the appellant to either murder. Having regard to the
    common sense proposition that because the accused may have committed one
    murder, a jury may have great difficulty in refraining from drawing the
    impermissible inference that he was likely to have committed the other, this
    court held severance ought to have been granted. Blair J.A., on behalf of the
    court, held that while one conversation the appellant had on November 22, 2002
    allegedly contained an admission to both murders, the evidence could have been
    given in separate trials with appropriate redactions to the other murder as may
    have been required:
R. v. Jeanvenne
, 2010 ONCA 706, 261 C.C.C. (3d)
    462,

at paras. 34 and 40.

[3]

At the appellants re-trial for the murder of Poulin, the jury was
    unable to reach a verdict resulting in a mistrial. The charge was later stayed
    by the Crown.

[4]

The appellants re-trial for the murder of Richard resulted in his
    conviction for first-degree murder again. During that trial, the jury heard
    evidence that the Mr. Big operation allegedly elicited an unrecorded bald
    admission to undercover officer S.G. that he murdered Richard. The appellant
    provided no details about how the murder was committed. Despite this courts
    implicit direction in
Jeanvenne
2010, the Crown also elicited evidence
    from S.G. that, in the same conversation, the appellant also allegedly made a
    bald admission to killing Poulin.

[5]

Subsequently, in
R. v Hart,
2014 SCC 52, [2014] 2 S.C.R. 544,
    the Supreme Court of Canada held that a confession obtained as a result of a
    Mr. Big operation is presumptively inadmissible. There is a real danger the
    individual wanting to join the organization may want to impress Mr. Big and
    falsely confess. Another danger is propensity reasoning from bad character
    evidence. The court placed the onus on the Crown to establish that the
    probative value of the confession, including its reliability, outweighs its
    prejudicial effect.

[6]

On this appeal, the appellant submits that none of the evidence obtained
    during the Mr. Big operation ought to have been admitted against him because
    its prejudice outweighed its probative value. In addition, the appellant raises
    various grounds of appeal all relating to the trial judges charge to the jury.
    Overall, the appellant submits that the charge was not balanced and fair.

[7]

I agree that the charge to the jury on motive and confirmatory evidence
    was deficient and that, overall, the charge was not balanced and fair.
    Accordingly, I would allow the appeal and order a new trial.

[8]

In view of my decision, it is unnecessary for me to consider the extent
    to which bad character evidence ought to have been permitted at trial and the
    trial judges charge to the jury as to the use they could make of it. However,
    in discussing the charge on motive and confirmatory evidence, I must deal with
    a discrete incident of bad character evidence that arose during the trial. In
    addition, I wish to express my disapprobation at the Crowns introduction of
    references to the Poulin murder during the appellants re-trial for the murder
    of Richard. The introduction of that evidence which had the effect of
    undermining this courts earlier implicit directive and the change in the legal
    framework governing the admissibility of evidence from a Mr. Big operation
    brought about by
Hart
fortifies my decision that a new trial is
    necessary.

B.

facts

(1)

Circumstances of the offence

[9]

Michel Richard was found dead in his apartment on May 17, 2000. There
    had been a violent struggle in the bedroom, but no signs of forced entry. The
    autopsy revealed that the cause of death was blood loss from two injuries: the
    severing of the aorta by a .32 calibre bullet and the severing of the right
    common carotid artery as a result of a stab wound to the lower jaw. The 18
    sharp force wounds to Richards head, neck chest, arms and back were not life-threatening
    and some were defensive wounds.

[10]

The
    deceased allegedly was known to keep a substantial quantity of drugs in his
    apartment. A small quantity of what appeared to be marijuana was found.

(2)

Evidence of the appellants criminal associates linking him to
    the
Richard murder

[11]

There
    was no direct evidence linking the appellant to the scene of the crime.

[12]

Denis
    Bruyère testified that he sold crack cocaine for the appellant and that late one night in May 2000 he had gone to the appellant's house to pick up drugs and had seen the appellant fumbling with a gun that he believed was a .32 calibre. The appellant was agitated and talked about "a score to settle." When he met the appellant the next day, the appellant told him not to call him on his cell phone because "there was a lot of heat". The following day, the appellant picked Bruyère up in his car and as they drove past Richard's apartment building, he said: "One my friends was killed there and they're going to come hound me for this" – that "every time someone got killed" the police would question him.

[13]

Charles
    Felteau, another criminal associate, testified that the appellant admitted to
    killing Richard to him. The appellant allegedly told Felteau that Richard had
    informed on the appellant by reporting his involvement in a break and enter,
    and a theft. After Richards death, the appellant told Felteau that he was glad
    Richard was dead  that he deserved what he got. He was a rat. The appellant
    told Felteau he had dumped Richard. Speaking more generally, the appellant
    said that when youre killing someoneyou should look them in the eyes and
    tell them why youre killing themdo it slowly so the person knows exactly why
    youre killing them. The appellant explained that he prefers small calibre
    handguns  .25 or .32  because they cause death slowly. He mentioned that a
    small calibre handgun was also a good way to demobilize somebody to do
    whatever else you wanted.

[14]

The
    jury also heard the testimony of Jean-Claude Massie given at the appellants
    first trial since he died before the appellants re-trial. Massie had testified
    in great detail about the appellants role in the break-in of Henry Amusements,
    the break-in about which Richard allegedly told the police. Massie testified
    that about five to six months before Richards death, the appellant had been
    going around saying Richard was an informer for the police.

(3)

The Mr. Big operation

[15]

About
    two years after Richards death, the RCMP began an undercover operation to
    extract confessions from the appellant regarding the deaths of Poulin and
    Richard. The appellant needed money when he started working for a Rod
    Calibria, who would become Mr. Big from a fictional criminal organization.
    He participated in many successful bonding scenarios with the Mr. Big
    organization over a lengthy period of time. The appellant said the police
    suspected him of two to three homicides including Richards murder. He said
    that Richard had ratted on the appellant and that shortly after that, he died.
    The appellant did not admit to any involvement in Richards death.

[16]

The
    appellant was introduced to Rob another criminal who had a problem,
    implying that he needed a witness to be killed. The appellant volunteered to do
    the job. During a recorded conversation, the appellant initially denied having
    experience killing people. After he was pressed, he conceded that he had
    whacked four people who had been close friends. He denied killing Richard.

[17]

The
    key aspect of the Mr. Big evidence was the appellants alleged confession to Officer
    S.G., who posed as a member of a closely related criminal organization. On
    November 22, 2002, while driving from Thunder Bay to Montreal, the appellant
    allegedly told S.G. that Richard had reported the appellants break and enter
    to the police and that the appellant had served time for it. According to S.G.,
    the appellant said that when he was sure Richard was the rat, Jy ai faite la
    passé. S.G. testified this meant the appellant had killed him. The appellant
    also said the police found the body toute décrisser but he was not worried
    because the police would have arrested him by now if they had anything. The
    conversation and the alleged confession were not recorded.

[18]

Days
    later, Calibria confronted the appellant and intimated that he knew the
    appellant had given names of persons he had killed to S.G. He wanted the names.
    For two hours, the appellant repeatedly denied ever giving a name to S.G. or
    killing Richard. He maintained that the last time he had killed anyone was over
    12.5 years ago. The appellant said that [he] said bullshit to make a name for
    himself. The appellant and Calibria agreed their relationship was over.

[19]

The
    investigation concluded with a staged kidnapping. Afterwards, S.G. asked the
    appellant about cleaning up his past. Again, the appellant refused to provide
    any information.

C.

discussion and analysis

(1)

References to the Poulin murder during the appellants trial

[20]

During
    the course of the appellants trial for the murder of Richard, the Crown led
    evidence that the appellant had confessed to the Poulin murder. The
    introduction of this evidence was no accident. When Crown counsel was examining
    S.G. in-chief about the November 22 conversation, the key conversation in the
    Mr. Big operation, S.G. testified that he said to the appellant you should
    have told me and Rod [Calibria] that there was heat on you for the murder of
    Michel Richard. The Crown then asked the following:

Q. And I understand you also include the other names in the
    conversation about the heat, correct?

A. The other name that he mentioned?

Q. Thats right.

A. Yeah, there was another name, Poulin.

[21]

The
    evidence that the appellant confessed to murdering another person, Poulin, as
    well as Richard, was not an essential part of the background narrative
    respecting the Mr. Big operation. Moreover, in ordering a new trial because
    there had been no severance, this court had effectively decided that its prejudice
    outweighed any probative value.

[22]

The
    appellant submits that the evidence respecting the Poulin murder was unduly
    prejudicial and could not be cured by the mid-trial instruction against
    propensity reasoning together with the judges charge to the jury on general
    bad character evidence, which in itself, is alleged to be deficient.

[23]

In
    response, during the hearing of this appeal, the respondent placed before the
    court a letter of agreement dated March 6, 2012, written by the trial Crown to
    defence counsel confirming a telephone conversation they had. The letter states
    in part:

During our conversation this morning you also indicated you
    would not oppose the Crowns application to lead evidence of discreditable
    conduct relating to your client. The discreditable conduct evidence that the
    Crown intends to lead was laid out in our Notice of Application. To be clear,
    the Crown intends to lead the following evidence;

1.       The 14 October 2002 statement containing confession
    to the murder of Donald Poulin.

2.       Mr. Jeanvennes involvement and participation in
    series of supposedly criminal acts, including payments received.

3.       Evidence relating to the Bouclair Fabric Store
    break in, including arrest of Rick Paradis (5 August 2002) and damaging night
    deposit at the Laurentian Bank (20 August 2002) and Mr. Felteaus evidence as
    it relates to the Bouclair Fabric store.

4.       Mr. Jeanvenne divulging information about his
    criminal background to;

a. [R.L.]

b. [R.J.]

c. [S.G.]

5.       The 29 November 2002 statement wherein Mr. Jeanvenne
    interweaves into his refusal to name Names with references to criminality.

The previous 5 points were the subject of a similar application
    prior to Mr. Jeanvennes trial on the killing of Donald Poulin.  On the date
    set to contest the Crowns application you conceded that items 2 through 5 were
    admissible in the first trial. Justice Lalonde [the judge presiding over the
    Poulin retrial] ultimately ruled that all of the discreditable conduct the
    Crown wished to lead was admissible.

6.       The evidence of Denis Bruyere

7.       The evidence of Charles Felteau

[24]

Mr.
    Smith, counsel for the appellant, who was not counsel at trial, advised the
    court that he was unaware of this letter until it was produced before us.

[25]

It
    is regrettable that the trial Crown sought to lead evidence of the Poulin
    murder. Although Lalonde J. ruled that all of the bad character evidence
    respecting the appellant was admissible, during the appellants trial for the
    Poulin murder no reference was made to the Richard murder.

[26]

Notwithstanding
    the Crowns letter, defence counsel may have been under the impression that,
    similarly, during the Richard trial no reference would be made to the Poulin
    murder. I say this because during the trial and in the absence of the jury,
    defence counsel objected to the Crowns gratuitous introduction of references
    to the Poulin murder on at least two occasions. Following this, in addition to
    the trial judges midtrial instructions on prejudice, some attempt was made to
    have the witnesses who were testifying limit their reference to extraneous bad
    character evidence.

[27]

On
    appeal, the Crown contends that the defence made a tactical decision to agree
    to the introduction of bad character evidence because the defence wanted to
    argue the appellants vulnerable circumstances led him to confess: he was
    desperate for money and his personality was such that he wished to portray
    himself as a capable criminal.

[28]

Any
    tactical decision of the defence was taken in light of the prior ruling of
    Lalonde J. with respect to the Poulin trial. Furthermore, no tactical advantage
    has been shown to the appellants alleged admission of the Poulin murder during
    this trial. Simply put, it was irrelevant and its likelihood to cause prejudice
    through propensity reasoning was high. Counsels purported agreement to the
    introduction of that evidence cannot be used to shield it from scrutiny.

[29]

While
    the Crown may have observed the letter of the courts direction, in that
    separate trials were held, the Crown did not observe the spirit and implicit
    direction given in
Jeanvenne
2010, aimed at ensuring the appellants
Charter
protected right to a fair trial. It is cause for great concern. With this
    background in mind, I now turn to the charge to the jury.

(2)

Fairness of the trial judges charge to the jury

[30]

Trial
    judges are faced with the difficult task of properly instructing a jury,
    especially in cases involving evidence with limited permissible use and other
    complicated issues of law. The law is well settled that an accused is entitled
    to a properly instructed jury, not a perfectly instructed jury:
R. v.
    Jacquard
, [1997] 1 S.C.R. 314, at para. 2. Although mistakes are bound to
    occur, there is no justification for a jury charge that is not even-handed, as
    it undermines an accuseds s. 11(d)
Charter
right to a fair trial:
R.
    v. Baltovich
(2004), 73 O.R. (3d) 481 (C.A.), at paras. 116-18.

[31]

This
    court has stressed the importance of a fair and balanced charge:
Baltovich
,
    at para. 118. Fairness requires, among other things, that the charge explain
    the theories of each side and review the salient facts in support of those
    theories:
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 29.
    As noted by Taschereau J. in
Azoulay v. The Queen
, [1952] 2 S.C.R.
    495, at p. 498, a trial judge need not review every piece of evidence, but
    [t]he pivotal question upon which the defence stands must be clearly presented
    to the jurys mind.

[32]

So
    long as the substance of the defence position was put to the jury, a charge
    will not be unfair or unbalanced merely because the trial judge did not spend
    an equal amount of time reviewing the parties evidence:
R. v. Nelson
,
    2014 ONCA 853, 318 C.C.C. (3d) 476, at para. 47.

[33]

An
    appellate court must consider the charge as a whole and its overall effect in
    reviewing a trial judges instructions:
Daley
, at para. 31.

(a)

The charge on motive was deficient

[34]

A
    key aspect of the Crowns case was that the appellants motive for killing
    Richard was that he was a rat who provided information about a break-in
    involving the appellant eight years before the murder.

[35]

Felteau
    testified that after Richards murder, the appellant obtained a piece of paper
    that had been given to the Childrens Aid Society indicating that Bruyère had
    told CAS about a gun. According to Felteau, the appellant was upset and said
    that Bruyère ought to be dumped, which he took to mean that Bruyère ought to
    be killed.

[36]

The
    defence sought to neutralize the evidence of motive and Felteaus evidence in
    its cross-examination of Bruyère. The defence succeeded in having Bruyère admit
    that when he had sought to work with the appellant again, the appellant called
    him a rat and simply told him he didnt want to work with him anymore. The
    appellant did not threaten to kill him and had taken no steps to harm him
    afterwards.

[37]

Following
    defence counsels cross-examination, the Crown led reply evidence that while
    Bruyère was giving evidence at the appellants preliminary inquiry the
    appellant made a gesture putting his hand to his own head as if he had a gun
    and said, Tes mort, meaning Youre dead. He repeated the same thing at
    trial as Bruyère passed by him after Bruyères testimony. Bruyère testified
    that the appellant also called him mon mangeux de merde, meaning a rat.

[38]

The
    Crown contends that the cross-examination by the defence opened the door to the
    evidence of the alleged threats to Bruyère being led in reply. A similar
    submission is made with respect to the evidence that during the preliminary
    inquiry the appellant also threatened Felteau.

[39]

No
    ruling was made with respect to whether the prejudicial effect of this bad
    character evidence outweighed its probative value.

[40]

Quite
    apart from the admissibility of this reply evidence, in his charge to the jury,
    the trial judge stated:

You will recall during the course of this trial that Mr. Jeanvenne
    made a threat to Mr. Bruyère, telling him, You are dead, you rat, in the
    French language, according to the evidence of Mr. Bruyère. Detective Monette
    overheard the threat as being, Dead. Eat shit. It is for you to decide what
    was said. Threats were also made to Mr. Felteau [sic] during the course of the
    preliminary inquiry. You may consider the evidence of these threats to
    determine whether you believe Mr. Jeanvenne has a strong distaste for those who
    implicate him in crimes.

[41]

In
    his overview of the parties positions, the trial judge again charged the jury
    as follows:

Crown counsel rely heavily on the evidence of the strong motive
    to kill Mr. Richard disclosed in the evidence; and the fact that Mr. Jeanvenne
    had a very low opinion of rats, which was even exhibited during the course of
    this trial with his threats to Mr. Bruyère.

[42]

The
    appellant submits that the trial judges charge to the jury contained only the
    inculpatory aspects and not the exculpatory aspect of the evidence respecting
    motive.

[43]

The
    Crown points out that defence counsel did not object to this aspect of the
    trial judges charge to the jury. The failure of counsel to object to the
    judges charge to the jury is, of course, a relevant consideration that may
    inform a court's conclusion on both the overall accuracy of an instruction and
    likely impact of the error. It is, however, only one consideration:
Jacquard
,
    at para. 38; see also
R. v. Arcangioli
, [1994] 1 S.C.R. 129;
R. v.
    Chambers
, [1990] 2 S.C.R. 1293.

[44]

I
    agree with defence counsels submission that in this case the trial judges
    instruction to the jury on motive was deficient in several respects and that
    this error was serious. The trial judge did not tell the jury they should
    consider Bruyères evidence that the appellant had simply refused to deal with
    him after calling him a rat and had not harmed him. Assuming, had a
voir
    dire
been held, that the evidence of the threats during the proceedings
    was admissible, he did not tell the jury what the permitted use of the evidence
    was, namely, so that the jury would have a complete picture with respect to
    motive. He did not caution the jury about the prohibited use of the reply
    evidence, namely, that propensity reasoning based solely on evidence of the
    threats made during the proceedings was prohibited.

[45]

He
    did not ask the jury to consider whether, if they were satisfied the appellant
    made the threats to Bruyère and Felteau during the proceedings, his threats
    were due to anger and indignation at being falsely accused of taking revenge on
    Richard. In this regard, I note that after the trial judge determined that the
    evidence should be admitted without a proper
voir dire
, at which the
    appellant would have testified, the appellant addressed the trial judge
    directly: He [Bruyère] knows  he knows how I am, he knows I get pissed off. Its
    not because Im guilty of the crime, its because I cant stand this piece of
    shit.

[46]

Overall,
    the trial judge did not put the defence position on motive to the jury.

(b)

The crime scene evidence cited as being confirmatory was not
    confirmatory; the crime scene evidence favorable to the defence was not
    mentioned.

[47]

The
    trial judge told the jury that Bruyère and Felteau benefitted from testifying
    against the appellant. Felteau was never charged with conspiracy to commit a
    robbery of the Second Cup at the Civic Hospital; Bruyère was indebted to the
    appellant in the amount of $7,500 when he made his statements to the police.
    (He omitted to say that Bruyère may also have had a reason to falsely accuse
    the appellant to regain custody of his daughter from the Childrens Aid
    Society.) He noted that the jury did not see Massie testify.

[48]

The
    trial judge also told the jurors that common sense required they look at the
    evidence of these witnesses with the greatest care and caution, that it was
    dangerous to rely on their evidence without confirmation.

[49]

The
    trial judge then suggested to the jury that the photographs from the crime
    scene were capable of confirming Felteaus evidence and instructed them as follows:

Mr. Felteau testified that in a conversation with Mr. Jeanvenne,
    Mr. Jeanvenne told him that if a person were to be murdered, the person must first
    be rendered defenceless. Then the person should be told very slowly why the
    person is being murdered, and then the person should be executed with a small
    calibre weapon so that death would come slower than with a larger calibre
    weapon.  If you believe that Mr. Jeanvenne made this statement to Mr. Felteau then
    you might conclude that the murder scene as depicted in the photographs
    tendered in evidence reflects this statement.

[50]

There
    was no evidence that the murder scene confirmed relevant portions of Felteaus
    testimony. The respondents oral submission that Richard was killed in the
    manner described by Felteau because he was shot at close range is speculation.
    The expert who testified about the crime scene gave evidence that Richard and
    the killer were engaged in a violent struggle which might explain why the
    shooting took place at close range. There was no evidence that Richard was
    immobilized or experienced a slow, painful death. Indeed, the expert evidence
    was that death would have been practically instantaneous from the stab wound to
    the carotid artery and bullet wound to the aorta. The expert could not say in
    which order the injuries were inflicted.

[51]

The
    respondents further submission that a correct charge respecting confirmatory
    evidence would not have benefitted the appellant is no answer in this case to
    the prejudice caused by the trial judges erroneous example of confirmatory
    evidence.

[52]

Moreover,
    the trial judge omitted to charge the jury regarding evidence from the crime
    scene that supported the defence position. The trial judge put to the jury the
    defence theory that Richard was killed as a result of a violent struggle during
    a robbery, possibly for drugs. However, he omitted to tell the jury that,
    according to the Crowns expert, the crime scene photographs were consistent
    with a violent struggle. Having regard to the evidence reviewed by the trial
    judge in favour of the Crowns position, the fact that the appellant did not
    testify and the paucity of evidence supporting the defence, it was all the more
    important that the trial judge give the jury what there was in order for the
    charge to be balanced and fair.

[53]

The
    appellant raises other issues with respect to the trial judges charge to the
    jury concerning the trial judges instructions on the use that could be made of
    the bad character evidence. However, given the seriousness of the errors above,
    I need not address the other grounds of appeal raised.

D.

Conclusion

[54]

I
    am of the opinion that a new trial is required having regard to the important
    role motive played in this trial and the trial judges deficient charge to the
    jury on motive in that he did not put the defence position regarding motive to
    the jury, his erroneous prejudicial example of confirmatory evidence and his
    omission to put to the jury relevant evidence that supported the defence
    position.

[55]

I
    would add that the evidence led of the appellants confession to the Poulin
    murder during this trial and the Supreme Courts decision in
Hart
only
    serve to reaffirm my conclusion that, overall, the appellants trial was not
    fair.

[56]

Accordingly,
    for the reasons I have given, I would allow the appeal and order a new trial.

Released: (K.M.W.) February 5, 2016

K.M. Weiler J.A.

I agree M. Tulloch
    J.A.

I agree David Brown
    J.A.


