



WARNING

The President of the panel hearing
    this appeal directs that the following should be attached to the file:

An order restricting publication in
    this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7),
    (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under section
    486.4, on application of the prosecutor in respect of a victim or a witness, or
    on application of a victim or a witness, a judge or justice may make an order
    directing that any information that could identify the victim or witness shall
    not be published in any document or broadcast or transmitted in any way if the
    judge or justice is of the opinion that the order is in the interest of the
    proper administration of justice.

(2)     On application of the prosecutor in respect
    of a justice system participant who is involved in proceedings in respect of an
    offence referred to in subsection (2.1), or on application of such a justice
    system participant, a judge or justice may make an order directing that any
    information that could identify the justice system participant shall not be
    published in any document or broadcast or transmitted in any way if the judge
    or justice is satisfied that the order is in the interest of the proper
    administration of justice.

(2.1) The offences for the purposes of subsection (2)
    are

(a) an offence under section
    423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for
    the benefit of, at the direction of, or in association with, a criminal
    organization;

(b) a terrorism offence;

(c) an offence under
    subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of
    Information Act
; or

(d) an offence under
    subsection 21(1) or section 23 of the
Security of Information Act
that
    is committed in relation to an offence referred to in paragraph (c).

(3)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)     An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary for
    the proper administration of justice.

(6)     The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer harm if
    their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
    proposed order;

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
    considers relevant.

(8)     An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or
    submissions made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.
2005, c. 32, s.
    15; 2015, c. 13, s. 19

486.6 (1)  Every person who fails to comply with an
    order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken
    against any person who fails to comply with the order, the publication in any
    document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barrett, 2016 ONCA 12

DATE: 20160108

DOCKET: C57599

Watt, Hourigan and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patrick Barrett

Appellant

Richard Litkowski, for the appellant

Karen Papadopoulos, for the respondent

Heard: October 21, 2015

On appeal from the conviction entered on October 11, 2012
    and the sentence imposed on December 18, 2012 by Justice Nola E. Garton of the Superior
    Court of Justice, sitting with a jury.

Hourigan J.A.:

A.

Overview

[1]

On May 31, 2010, Lucita Charles was beaten to death by her common law husband,
    the appellant. Following the homicide, the appellant covered Ms. Charles
    with a blanket, tore two pages from his Bible, and pinned them to her chest
    with a knife.

[2]

The appellant then proceeded to withdraw funds from Ms. Charless bank
    account, which he used to fund a road trip with a co-worker with whom he was
    having an affair. The two stopped to visit the co-workers parents, and after
    they left, the co-workers father called the police when his wife saw a report
    on the homicide along with the appellants picture. The police eventually
    tracked down the appellant in Oshawa, where he was arrested.

[3]

While in custody, the appellant made two statements to the police
    wherein he admitted to beating Ms. Charles to death with a hammer as she slept
    in their bedroom. He told the police that he lost it when Ms. Charles
    insisted that if she was pregnant she would have an abortion. He told the
    police that he did not mean to kill her.

[4]

At the outset of trial, the appellant pleaded guilty to manslaughter,
    but the Crown rejected his plea. The appellant advanced the defence of
    provocation, arguing that Ms. Charless firm resolve to have an abortion caused
    him, a devoutly religious man, to lose control. The trial judge held that there
    was no air of reality to the defence and refused to put it to the jury.

[5]

The appellant was convicted of second degree murder. The trial judge
    ruled that he will not be eligible for parole for 15 years.

[6]

On appeal, the appellant submits that the trial judge erred in failing
    to give the jury an instruction in accordance with
R. v. W. (D.)
,
    [1994] 3 S.C.R. 521, with respect to the exculpatory portions of his statements
    to police. He also submits that the trial judge erred in declining to instruct
    the jury on provocation. In addition, the appellant seeks leave to appeal
    sentence, arguing that his period of parole ineligibility should be reduced to
    12 years. During the course of oral submissions the appellant abandoned his
    argument relating to the admissibility of his medical records.

[7]

For the reasons that follow, I would dismiss the conviction appeal. I
    would grant leave to appeal sentence, but I would dismiss the sentence appeal.

B.

Analysis

(i)


W. (D.)
Instruction

[8]

The only issue for the jury was whether the Crown had proved beyond a
    reasonable doubt that the appellant possessed the necessary intent to be
    convicted of second-degree murder, rather than manslaughter.

[9]

The appellant did not testify at trial. He relied however, as did the
    Crown, upon two statements he had given to police. In the second, he described
    in step-by-step detail the interaction between Ms. Charles and himself the
    night of the killing and how he killed her. He claimed that he did not mean to
    do it, but lost it out of a combination of rage, depression and religious
    fervour, when faced with her intention to have an abortion if she were indeed
    pregnant. His lack of intention, as expressed in his statements to police, was
    a major focus of his defence at trial, supported by his medical records of
    previous depressive episodes when experiencing relationship difficulties. In
    addition, the appellant relied upon testimony from his father, his pastor and
    other witnesses called by the Crown as to his normally gentle and caring disposition,
    his ardent belief that his care of Ms. Charless disabled son would be rewarded
    by God providing him with a daughter, and his religious preoccupation.

[10]

It
    is the appellants position, relying primarily on this courts decision in
R. v.
    Bucik
, 2011 ONCA 546, 274 C.C.C. (3d) 421, that the trial judges failure
    to provide the jury with a
W. (D.)
instruction, on how to consider the
    exculpatory portions of his statements to police as a source of reasonable
    doubt even if not affirmatively believed, constitutes reversible error.

[11]

The
    Crown concedes that an explicit
W. (D.)
warning would have been
    preferable, but submits that the omission of such an instruction does not
    constitute reversible error in the factual context of this case, where the only
    issue was whether the accused had the requisite intent for second-degree
    murder, particularly since the charge properly conveyed the burden and standard
    of proof and their application to the jury.

[12]

During
    the pre-charge conference, there was some discussion between defence counsel
    and the trial judge as to whether a
W. (D.)
instruction might apply,
    and defence counsel agreed with the trial judge that the standard
W. (D.)
instruction did not really fit in the circumstances of this case. Defence
    counsel submitted that it would be appropriate to link the appellants various
    statements to the presumption of innocence and burden of proof and to make
    clear that, if there was any doubt about his intent at the time, the jury
    should acquit. The Crowns position was that a
W. (D.)
instruction was
    not required since the appellant did not testify.

[13]

In
    considering the appellants argument about the
W. (D.)
instruction, it
    is important to have regard to the case law regarding the principles of
    appellate review of jury instructions. The focus of appellate review of jury
    charges is whether, after a functional and contextual review of the charge and
    of the trial as a whole, the jury instructions adequately prepared the jury for
    deliberations:
R. v. Araya
, 2015 SCC 11, [2015] 1 S.C.R. 581, at para.
    39. Perfection is not the test. Nor is there any requirement to exactly track
    the
W. (D.)
language:
R. v. B.D.
, 2011 ONCA 51, 266 C.C.C.
    (3d) 197, at para. 103. The key question is whether the jury was equipped with
    an understanding of the appropriate burden and standard of proof: see
R. v.
    King
, 2013 ONCA 417, 309 O.A.C. 39, at para. 16; see also
R. v. J.H.S.
,
    2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13;
R. v. Cyr
, 2012 ONCA
    919, 294 C.C.C. (3d) 421, at para. 49.

[14]

As
    noted, the appellant relies on
Bucik
in support of its position that a
W. (D.)
instruction was required. However, in
Bucik
this
    court did not hold that a
W. (D.)
instruction was mandatory in
    relation to all exculpatory statements or that its absence necessarily
    constitutes reversible error. As subsequent decisions of this court have made
    clear, an explicit
W. (D.)
instruction is not necessarily required
    where there is potentially exculpatory evidence, as long as the charge as a
    whole makes the burden of proof in relation to reasonable doubt and issues of
    credibility clear to the jury, such that it is not, as described in
Bucik
,
    simply an either/or contest: see e.g.
King
, at paras. 16-19;
R.
    v. Tuck
, 2014 ONCA 918, 123 O.R. (3d) 321, at paras. 51-56;
R. v.
    Bengy
, 2015 ONCA 397, 325 C.C.C. (3d) 22, at paras. 98-102;
R. v.
    Moffit
, 2015 ONCA 412, 326 C.C.C. (3d) 66, at paras. 63-68.

[15]

In
    addition, in
Bucik
the court was dealing with a very specific factual
    circumstance in which there were two aspects of exculpatory evidence: (i) an
    accuseds statement to the police that he was present but did not participate
    in a fatal attack, and (ii) various eyewitness inconsistencies in his
    identification which, in combination with the lack of clear evidence of the
    number of people in the vicinity at the time of the fatal attack, could give
    rise to reasonable doubt. It was particularly in the context of the
    inconsistent identification evidence that reversible error was found in a jury
    instruction that simply told the jury to consider anything the accused said,
    along with all of the other evidence, in deciding whether they had a reasonable
    doubt.

[16]

In
    this case, the trial judge provided the jury with a comprehensive and correct
    instruction on the definition of proof beyond a reasonable doubt, which
    included a specific reference to intent:

The requirement of proof beyond a reasonable doubt applies to
    each and every element of the offence with which Mr. Barrett is charged. As I
    indicated to you in my opening remarks at the outset of this trial, and as
    counsel have also indicated to you in their addresses, identity and cause of
    death are not at issue in this case. The essential element that is in issue is
    the intent or state of mind: Has the Crown established beyond a reasonable
    doubt that Mr. Barrett had the requisite intent or state of mind for second-degree
    murder?

[17]

In
    the section of the charge addressing the appellants statements to police, the
    trial judge stated:

You may accept all, part or none of what Mr. Barrett told the
    police. You may give anything Mr. Barrett said as much or as little importance
    as you think it deserves in deciding this case. It is for you to say.
Anything that Mr. Barrett said, however, is only part of
    the evidence in this case. You should consider it along with and in the same
    way as all the other evidence.

Some or all of the statements made by Mr.
    Barrett during the interviews may help in Mr. Barretts defence. You must
    consider those remarks that may help Mr. Barrett, along with all the other
    evidence. You must consider all the remarks that might help Mr. Barrett.

If you decide that Mr. Barrett made a
    remark or remarks that may help him in his defence, you will consider that
    statement, along with the rest of his evidence, including the evidence called
    by the defence, in deciding whether you have a reasonable doubt that
    Mr. Barrett had the requisite intent or state of mind for murder.

I would remind you again that the burden of proving that Mr.
    Barrett had the requisite intent for murder beyond a reasonable doubt rests on
    the Crown. That onus of proof never shifts to Mr. Barrett. There is no burden
    on Mr. Barrett to prove anything. [Emphasis added.]

[18]

When
    addressing the indictment, and the state of mind necessary for second degree
    murder, the trial judge stated:

You must consider all of the evidence, the sum total of it,
    along with any other evidence that seems or tends to show Mr. Barretts state
    of mind when you are deciding whether Crown counsel has proven beyond a
    reasonable doubt that Mr. Barretts unlawful killing of Lucita was murder.

In determining this issue, you should
    consider all of the evidence. That would, of course, include what
    Mr. Barrett told the police during his two interviews.
[Emphasis
    added.]

[19]

The
    trial judges section of the charge setting out the position of the defence
    commenced by stating:

In his address to you, Mr. Bawden pointed out that Patrick
    Barrett made a statement to police against the advice of his counsel. In that
    statement, Mr. Barrett honestly confessed to having killed Lucita Charles. He
    also told the investigators, You have to believe me, I didnt mean it. Mr.
    Bawden pointed out that Mr. Barretts statement is admissible both for the
    Crown and the defence. Mr. Bawden submits that when Mr. Barrett said, I didnt
    mean it, he was truthfully trying to convey the fact that he never intended to
    kill Lucita. That is his defence at this trial.

[20]

In
    contrast to
Bucik
, in this case, the instruction to the jury put the
    entirety of the exculpatory defence evidencethe appellants denial of intentto
    the jury as something that they
had
to consider, and specifically tied
    it to the key issue. This was stronger language than used in
Bucik
.
    The jury in the present case was told they must consider all of the remarks
    that might help the appellant, along with all of the other evidence, in
    deciding whether they had a reasonable doubt that he had the requisite intent
    or state of mind for murder. Since the appellants intent was the sole issue at
    trial, it is inconceivable that the jury would not have appreciated that his
    statements that he did not mean to do it, even if not accepted in their
    entirety as true, were to be considered in determining whether they had a
    reasonable doubt on the whole of the evidence.

[21]

Additionally,
    as in
King
, the charge to the jury was replete with passages
    instructing the jury that the Crown bore the burden of proof beyond a
    reasonable doubt, that the burden never changed, and that the jury had to
    consider all of the evidence in deciding whether the Crown met the burden of
    proof beyond a reasonable doubt.

[22]

In
    my view, a consideration of the jury charge as a whole demonstrates that the
    jury was properly instructed on the interplay between the exculpatory aspects
    of the appellants statements and the reasonable doubt analysis. I would, therefore,
    reject this ground of appeal.

(ii)

Provocation

[23]

The trial judge reviewed the elements of
    the partial defence of provocation as enumerated in
R. v. Tran
, 2010 SCC
    58, [2010] 3 S.C.R. 350. She concluded that there was evidence on which the
    jury could find that Ms. Charless statement constituted an insult from the
    perspective of the appellant.

In considering the objective element, the trial judge held that there
    was no air of reality because there was no evidence on which a jury might
    conclude or have a reasonable doubt that an ordinary person would be deprived
    of self-control by the words. With respect to the subjective element, the trial
    judge concluded, without reasons, that this element of the test had been met. Finally,
    considering the element of suddenness, she concluded neither the insult nor the
    reaction were sudden, as both are required to be. Based on this analysis she
    held that there was no air of reality to the defence and declined to put it to
    the jury.

[24]

On appeal, the appellant submits that the trial
    judge erred in her analysis of the suddenness element. He argues that this case
    is not the classic situation of a grievous insult that provokes an
    instantaneous homicidal rage, but that few cases in the domestic context fall
    in this paradigm. According to the appellant, the trial judge erred in finding
    that there was no evidence that the appellant was taken by surprise by Ms.
    Charless final, unequivocal declaration of her intent to have an abortion. The
    appellant argues that the trial judge erred by focusing on the length of the
    discussion and argument, rather than on the forcefulness of Ms. Charless
    final statement.

[25]

I would not accede to this argument.

I agree with the
    finding of the trial judge that nothing had changed in what Ms. Charles had
    communicated to the appellant in the days and hours leading up to her death.
    She consistently told him that she would not have a child. Moreover, nothing in
    the appellants actions leading up to the attack is consistent with a sudden
    reaction. On the appellants own evidence, just before the attack, he left the
    bedroom and sat thinking while he felt the rage starting to build, then went
    out to the balcony and had a cigarette, then returned to the living room and
    flipped through his Bible, then returned to the bedroom and lay down with Ms.
    Charles, all before he attacked her. In these circumstances, it cannot
    reasonably be inferred that any insult or the appellants reaction to such
    insult was sudden. Therefore, I see no error in the trial judges analysis of
    this issue.

[26]

The appellant also submits that the trial
    judge did not properly take into account contextual factors in assessing the
    ordinary person test.

At trial the Crown submitted that the factors to be considered
    should be limited to the appellants age, gender, the fact that he was in a
    common law relationship with a woman for two years, and that he developed
    affection for her son. The defence submitted that the factors should be
    expanded to include that he was a devout Christian, that his common-law spouse
    had two previous abortions, that he entreated her not to have a third abortion,
    the history of their relationship, and that the appellant was heavily
    invested in his common law spouses son.

[27]

In my view, the contextual factors proposed by
    the appellant are so specific to the appellant that they turn this element of
    the test into a purely subjective one. In any event, the trial judge stated in
    her reasons that she took the factors proposed by the defence into account when
    assessing the ordinary person test and, that even with these factors included, there
    was no suggestion that an ordinary person would have been deprived of
    self-control. I see no basis to interfere with that conclusion.

[28]

In my view, the trial judges only error was in
    finding that Ms. Charless assertion that If I am pregnant, I am having an
    abortion could constitute an insult for the purposes of the defence of provocation.

The trial judge
    erred in stating that the issue was whether the appellant perceived Ms.
    Charless assertion as an insult, when the test is whether an ordinary person
    would perceive it as an insult:
Tran
, at para.
    25.

[29]

In addition, nothing that Ms. Charles did met
    the legal definition of an insult. In
Tran
, at
    para. 44, the Supreme Court quoted the dictionary definition of insult:

The general meaning of the noun insult as
    defined in the
Shorter Oxford English Dictionary on Historical
    Principles
(6th ed. 2007), vol. 1, at p. 1400, is [a]n
    act or the action of attacking; (an) attack, (an) assault. Likewise, the
    action of insulting means to [s]how arrogance or scorn; boast, exult, esp.
    insolently or contemptuously. . . . Treat with scornful abuse; subject to
    indignity; . . . offend the modesty or self-respect of.

[30]

I agree with the Crowns position that Ms.
    Charless words simply cannot be perceived as an insultthey are an assertion
    of her intentions with respect to the pregnancyand in the context of the
    series of events, it cannot be perceived that they were used in an insulting or
    offensive way. To the contrary, the manner in which she expressed herself to
    the appellant during the course of the argument that culminated in her death was
    the antithesis of insulting or provoking; indeed, she was trying to calm him
    down so that he would leave her alone.

[31]

While the trial judge erred in this regard,
    nothing turns on it as the error enured to the benefit of the appellant.

(iii)

Parole Ineligibility

[32]

The
    appellant submits that the appropriate period of parole ineligibility ought to
    have been fixed at 12 years. In my view, there is no merit to this submission.

[33]

The
    appellant alleges no error in principle.

[34]

He
    concedes that the appropriate range of parole ineligibility for this type of
    case is 12 to 15 years. As this court stated in
R. v. Dooley
, 2009
    ONCA 910, 249 C.C.C. (3d) 449, at para. 179, it is hard, absent some error in
    principle or misapprehension of material evidence, to justify appellate
    intervention to adjust a mandatory period of parole ineligibility downward by
    two or three years.

[35]

In
    my view, appellate intervention is not justified in this case. This was a
    vicious killing of a defenceless victim, which was followed by the desecration
    of her body. The victims severely disabled son lost his mother, who was his
    primary caregiver. The parole ineligibility period imposed was entirely
    reasonable given these and the other aggravating factors identified by the
    trial judge.

C.

Disposition

[36]

I
    would dismiss the appeal from conviction. I would grant leave to appeal
    sentence, but I would dismiss the sentence appeal.

Released: January 8, 2016 DW

C.W.
    Hourigan J.A.

I
    agree David Watt J.A.

I
    agree Grant Huscroft J.A.


