



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Boudreau, 2012
    ONCA 830

DATE: 20121128

DOCKET: C50934

MacPherson, Cronk and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Earle Boudreau

Appellant

Brian H. Greenspan and Naomi M. Lutes, for the appellant

Gregory J. Tweney, for the respondent

Heard: November 8, 2012

On appeal from the convictions entered on May 28, 2008 by
    Justice J. Bryan Shaughnessy of the Superior Court of Justice, sitting with a
    jury.

By the Court:

A.

INTRODUCTION

[1]

The appellant, James Boudreau, was charged with two counts of
    first-degree murder in connection with the deaths of James Pearce and Gordon
    Smith. Following a 16-day trial presided over by Shaughnessy J. of the Superior
    Court of Justice, a jury returned verdicts of guilty of first-degree murder in
    the death of Smith and second-degree murder in the death of Pearce.

[2]

The appellant appeals his convictions on four grounds, the principal one
    being that the Crowns closing address to the jury was improper and deprived
    the appellant of a fair trial.

B.

FACTS

[3]

The appellant, Pearce and Smith had been good friends for many years.
    They were also involved in an illegal activity known as pot piracy, which
    involved stealing marijuana crops from dangerous people such as the Satans
    Choice motorcycle club. These drug rips, as they were called, had the
    potential to be violent; the participants wore masks and carried guns. The
    rough stolen marijuana was brought to a safe house in Colborne, where it
    was cleaned and trimmed in preparation for sale.

[4]

On October 3, 1999, the appellant and his group stole a mother lode of
    marijuana and brought it to their safe house. The next evening, October 4, the
    marijuana was stolen from the safe house.

[5]

On October 5, 1999, everyone who worked at the safe house was called to
    a meeting there. The appellant, Smith and the clippers who prepared the
    marijuana for sale were there. Pearce did not attend. The participants, and
    especially the appellant, formed the view (wrongly, as it turned out) that
    Pearce was responsible for the theft of the marijuana. The appellant was angry
    and said, in relation to Pearce, Ill kill him. Ill fucking kill him.

[6]

Pearce disappeared the same day. He left without identification, extra
    clothing, or even his dentures. He has not been seen or heard from since
    October 5, 1999, and there is no record of any activity on his banking,
    employment, health or other records. His body has never been found.

[7]

The following year, Smith was in custody on drug charges. He and the
    appellant spoke regularly while Smith was in custody. Their calls were
    intercepted and it is obvious they were planning more drug rips once Smith was
    released. In their telephone conversations, Smith also told the appellant that
    the police had been asking him questions about Pearces disappearance. During
    this time, and while Smith was still incarcerated, the appellant was told by an
    acquaintance that Smith had ratted out this acquaintance with respect to some
    stolen property.

[8]

Smith was released from jail on September 6, 2000. He stayed at the
    appellants house. However, he spent one night at his girlfriends house, which
    clearly annoyed the appellant, who had developed a relationship with Smiths
    girlfriend while Smith was in jail.

[9]

On September 8 between 11 a.m. and 1 p.m., the appellant and Smith left
    the appellants house together. Smith was wearing a Pink Floyd t-shirt. Just
    after 2 p.m. that afternoon, a cottage owner near Cobourg heard eight gunshots
     four quick shots, a pause, and then four more shots.

[10]

Smiths
    body was found less than two weeks later in a heavily wooded area just 183
    meters from the cottage. He had been shot at least seven times at close range
    with a 12-gauge shotgun. He was still wearing his Pink Floyd t-shirt.

[11]

In
    the weeks following Smiths disappearance, the appellant gave various people
    conflicting explanations for Smiths whereabouts. Sometime before Smiths body
    was found, the appellant told his teenage daughter that Smith had been shot in
    the back of the head. Her evidence of what her father said to her was: Well if
    God can kill people then why does it matter if he does?

[12]

There
    are other facts relevant to the disposition of this appeal. They are better
    addressed in the context of the issues to which they relate.

C.

ISSUES

[13]

The
    appellant raises four issues:

(1)

Did the trial judge err in failing
    to declare a mistrial as a result of improprieties in the Crowns closing
    submissions to the jury?

(2)

Did the trial judge err in
    permitting the Crown to lead opinion and hearsay evidence through Steven Gault,
    a paid police agent, with respect to identity and motive in relation to the two
    murders?

(3)

Did the trial judge err in
    allowing the Crown to invite the jury to draw a series of inferences in support
    of a theory of motive that was based entirely on speculation?

(4)

Were the verdicts unreasonable and
    contrary to the weight of the evidence?

D.

ANALYSIS

(1)

The Crown closing
    address

[14]

The
    appellant contends that the Crown closing address was, in part, sarcastic and
    inflammatory in tone and speculative and factually inaccurate in content.

[15]

Both
    counsel are entitled to a fair degree of latitude in their closing addresses to
    the jury. As expressed by this court in
R. v. Daly
(1992), 57 O.A.C.
    70, at p. 76:

A closing address is an exercise in advocacy. It is a
    culmination of a hard fought adversarial proceeding. Crown counsel, like any
    other advocate, is entitled to advance his or her position forcefully and
    effectively. Juries expect that both counsel will present their positions in
    that manner and no doubt expect and accept a degree of rhetorical passion in
    that presentation.

See also:
R. v. Mallory
, 2007 ONCA 46,
217 C.C.C. (3d) 266 , at
    para. 339.

[16]

However,
    there are important and well-settled limits on Crown advocacy. While the Crown
    may argue its case forcefully, it must abstain from inflammatory rhetoric,
    demeaning commentary and sarcasm. The Crown must not misstate the facts or the
    law. The Crown must not invite the jury to engage in speculation or express
    personal opinions about either the evidence or the veracity of a witness: see
Mallory
,
    at para. 340.

[17]

The
    appellant alleges that certain passages in the Crown closing address were
    sarcastic and inflammatory, included improper comments on the veracity of
    witnesses, and invited the jury to speculate about the evidence. He submits
    that these defects rendered the trial unfair.

[18]

We
    do not accept this submission. Crown counsel made a lengthy closing address at
    the conclusion of a 16-day trial in a double murder case. Arguably, some of Crown
    counsels remarks, during a closing address that covers 120 pages of transcript
    and lasted over four hours, were sarcastic, appeared to express an opinion
    about the veracity of some witnesses testimony, and could be construed as
    inviting the jury to speculate about certain matters.

[19]

However,
    the trial judge, on his own initiative, without any objection or request from
    defence counsel, decided to deliver an addendum to his jury charge. In his
    blunt and strongly-worded addendum, he identified and explicitly discussed
    several statements by Crown counsel that he considered fell into the realm of
    sarcasm and speculation. He also explicitly instructed the jury that counsels
    opinion of witnesses was irrelevant. Defence counsel did not object to these
    corrections, or ask for anything more or different, or, importantly, seek a
    mistrial.

[20]

In
    our view, the trial judges addendum effectively overcame any problems that
    might have been created by Crown counsels perceived sarcasm, stated opinions
    about the veracity of witnesses, or invitations to speculate. In many cases,
    appeal courts have accepted a timely and focussed correction by a trial judge
    of deficiencies in a Crown closing address: see for example,
R. v. Finta
,
    [1994] 1 S.C.R. 701, at paras. 281-82;
R. v. Trochym
, 2007 SCC 6, 1
    S.C.R. 239, at para. 184;
R. v. Munroe
(1995), 96 C.C.C. (3d) 431
    (Ont. C.A.), at p. 452
; and
R. v. Gordon
, 2012
    ONCA 533, at para. 6. In our opinion, the trial judges correction here was
    timely, comprehensive and crystal clear. Thus, as Bastarache J. said in
    relation to the same issue in
Trochym
at para. 184, deference should
    be shown to the trial judges handling of this case. This is particularly so
    where, as here, an accused attacks a trial judges discretionary decision not
    to declare a mistrial.

(2)

Steven Gaults
    evidence

[21]

The
    appellant submits that the trial judge erred in permitting Steven Gault, a paid
    police agent, to provide his opinion in respect of the identity of Pearces and
    Smiths killer; namely, that it was the appellant.

[22]

At
    trial, when Gault was asked and answered questions in this domain, defence
    counsel objected and the Crown conceded that the answers were based on hearsay,
    namely, what Gault had been told by others. However, the Crown contended that
    this evidence was not being tendered for its truth, but rather to explain
    Gaults state of mind leading to his subsequent actions, especially his role as
    a police agent and his attempt to surreptitiously record a conversation with
    the appellant about Pearces disappearance. The trial judge agreed with the
    Crown position, allowed the testimony, and instructed the jury that this part
    of Gaults evidence was narrative only and could not be used as evidence
    concerning the appellant.

[23]

We
    do not accept the appellants submission on this issue. Neither Gaults
    testimony about his actions as a police agent in this case  including his own
    confession to the appellant that he and two associates, not Pearce, had
    stolen the appellants mother lode of marijuana  nor his decision to wear a
    body pack in a largely successful attempt to obtain a confession by the appellant
    to Pearces murder would have made sense if the jury did not have a full
    understanding of Gaults thinking leading to his conduct.

[24]

In
    any event, even if this evidence were improperly admitted, it would not have
    affected the verdict. In his long closing address, the Crown said nothing about
    Gaults opinion. The trial judge said nothing about it in his jury charge.
    Importantly, in his jury charge the trial judge said that facts, not opinions,
    should govern the jurys deliberations and decision. This instruction would
    have applied to Gaults testimony.

(3)

Inferences versus
    speculation

[25]

The
    appellant submits that the trial judge erred in failing to caution the jury
    with respect to the Crowns theory of motive respecting the murder of Smith.
    The Crowns theory was that the appellant suspected that Smith was about to
    rat him out for the earlier murder of Pearce. The appellant submits that the
    Crowns closing submission on motive was based on a house of cards involving
    five propositions, all of which were based on speculation, not evidence and
    proper inferences from the evidence: (1) Smith had knowledge about the murder
    of Pearce which could implicate the appellant; (2) Smith lied to the appellant
    about his interview with the police; (3) the appellant thanked Smith for lying
    to the police; (4) a witness by the name of Steven Brown recounted to the
    appellant details of his own interview with the police; and (5) therefore, the
    appellant believed Smith was about to rat him out.

[26]

We
    do not accept this submission. There was evidence for each of the four
    propositions leading up to the conclusion in the fifth proposition.

[27]

On
    the first proposition, Smith was at the safe house the day the angry appellant
    threatened to kill Pearce. Pearce disappeared that same day.

[28]

On
    the second proposition, Smith did lie to the appellant about his interview with
    the police  he told the appellant that all he had said to the police was that
    on the day of Pearces murder, Pearce did not show up for a meeting; in fact,
    Smith told the police that Pearce was at the appellants house on the morning
    of October 5, 1999, the last day Pearce was seen alive. Moreover, and
    importantly, in his closing address to the jury, the Crown did not characterize
    Smiths statement to the appellant as a lie; he simply noted that Smith had
    actually told the police more than what he later disclosed to the appellant
    about that conversation.

[29]

On
    the third proposition, after Smith told the appellant what he had said to the
    police, the appellant then said right, right, thanks bud, right on. This is
    certainly the language of gratitude.

[30]

On
    the fourth proposition, at around 11:30 a.m. on September 6, 2000, the day
    Smith was released from jail, Brown agreed to submit to a polygraph test. By
    2:50 p.m., he informed the police that he had changed his mind. During this
    interval, Brown returned to the muffler shop where he worked. Through a series
    of intercepted telephone calls, the Crown established that the appellant was at
    the same shop from at least noon to 4:30 p.m. It is a fair inference, not wild
    speculation, that the two men discussed Browns conversation with the police
    earlier that morning.

[31]

It
    follows from this analysis  and from the evidence that the appellant had been
    told of an acquaintances suspicion that Smith was a rat  that the fifth
    proposition was not based on speculation. It was proper for the Crown to put
    the motive that the appellant believed Smith was about to rat him out for
    Pearces murder to the jury. It was also appropriate for the trial judge to
    instruct the jury on this issue, as he did:

In relation to count number two in the indictment regarding
    Gordon Smith, Crown counsel submits that James Boudreau was aware that Gordon
    Smith had knowledge of the motive of Mr. Boudreau to kill James Pearce and also
    his threat to do so. He also had reason to believe that Gordon Smith was a
    rat who was providing information to the police.

. . .

It is for you to decide whether James Earle Boudreau had such
    motives, or any motive at all, and how much or how little you will rely on it
    to help you decide this case.

(4)

Unreasonable
    verdict

[32]

The
    appellant candidly acknowledges that if he does not succeed on any of the
    previous three grounds of appeal, the unreasonable verdict ground cannot be
    made out.

E.

DISPOSITION

[33]

The
    appeal is dismissed.

Released: November 28, 2012 (J.C.M.)

J.C. MacPherson J.A.

E.A. Cronk J.A.

R.A. Blair J.A.


