



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2015 ONCA 782

DATE: 20151118

DOCKET: C54597

Doherty, Laskin and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dean Dylan Brown

Appellant

Timothy E. Breen and Cate Martell, for the appellant

Benita Wassenaar, for the Respondent

Heard: November 10, 2015

On appeal from the convictions on two counts of first
    degree murder and one count of attempted murder returned by a jury presided
    over by Justice R. Byers of the Superior Court of Justice at Picton, Ontario on
    October 19, 2011.

By the
    Court:

I

[1]

The appellant was convicted of one count of attempted murder (Shannon
    Hannah) and two counts of first degree murder (Whitney Hannah and Tracy
    Hannah).  He appeals from the convictions on the first degree murder charges
    and asks this court to substitute convictions for second degree murder.

[2]

Counsel for the appellant has ably advanced two grounds of appeal.  She
    submits that the instruction on intoxication as it relates to planning and
    deliberation was inadequate.  She also submits that the trial judge unfairly
    commented on the evidence of the defence toxicologist and, in doing so,
    significantly diminished the potential value of his evidence to the defence.

[3]

The court called on the Crown on the first but not the second issue.  At
    the end of oral argument, the court advised counsel that the appeal was
    dismissed with reasons to follow.  These are those reasons.

II

[4]

The appellant and Shannon Hannah had been boyfriend and girlfriend for a
    number of years.  The relationship ended in the early part of 2010.  The
    appellant, who had initiated the break up, wanted to get back together with
    Shannon a couple of weeks later.  Shannon was not interested.

[5]

In the early morning hours of March 11, 2010, the appellant arrived,
    uninvited, at the Hannah home.  Tracy Hannah was at home with her two
    daughters, Whitney age 14 and Shannon, and a friend of Whitneys.  Mr. Hannah
    was at work.

[6]

The appellant had been drinking for several hours with friends.  He had
    also been texting Shannon throughout the evening.  She had made it clear she
    had no interest in seeing him.

[7]

Sometime after the appellants arrival, Tracy persuaded the appellant to
    let her drive him home.  Part way to the appellants home, he decided to get out
    of Tracys vehicle and walk back to the Hannah home.  Tracy drove home arriving
    there before the appellant.  She was in the basement getting ready for work
    when the appellant arrived back at the Hannah household at around 6:00 a.m.

[8]

Shortly after the appellant arrived back at the Hannah household, Tracy awoke
    her daughter, Shannon.  Tracy was clearly very upset and had a cut on her
    forehead.  She told Shannon that the appellant had raped her and asked Shannon
    to call the police.

[9]

Shannon was in the kitchen speaking to the 9-1-1 operator when she saw
    the appellant coming up the stairs armed with her fathers shotgun.  The
    appellant had retrieved the shotgun from the garage and loaded it with three
    shells.  He had put a fourth shell in his pocket.  In his statement to the
    police, he explained that he had four shells for the four people in the house.

[10]

Shannon
    testified that when the appellant got to the top of the stairs, he opened
    fire.  First, he shot Shannon in the neck seriously wounding her.  Next, he
    shot Whitney in the face, killing her instantly.  Finally, the appellant shot
    Tracy in the back as she turned and headed down the stairs.  Tracy died from
    her injuries.  All of the shots were fired from very close range.  After the
    appellant had shot Shannon, Whitney and Tracy, he apologized to Shannon, kissed
    her, said sorry I had to do this, left the house and drove away.  He told the
    police that he decided not to shoot Whitneys friend because he had already ripped
    apart one family.

[11]

The
    appellant testified and admitted shooting the victims.  He denied that he
    intended to kill anyone, relying on evidence that he was despondent over the
    breakup with Shannon, had been drinking heavily, had consumed Ecstasy, and was
    very angry at Tracy who had told him that he could no longer see Shannon.  According
    to the appellant, when Tracy told him that he could no longer have anything to
    do with Shannon, he lost his temper and attacked Tracy. The attack occurred in
    the basement bathroom shortly after the appellant walked back to the Hannah house
    at about 6:00 a.m.

[12]

In
    his testimony the appellant denied sexually assaulting Tracy. He testified that
    they had consensual sex sometime earlier before they left for his home. He also
    testified that he and Tracy had been involved in an ongoing sexual relationship
    for some time. The appellant had not mentioned either the ongoing relationship,
    or the consensual sexual activity on the day of the homicides, in his statement
    to the police.

[13]

The
    Crown argued that no consensual sexual relationship existed and that the
    appellant had brutally sexually assaulted Tracy immediately before retrieving
    the shotgun from the garage and shooting Shannon, Whitney and Tracy. As well as
    Tracys statement to Shannon, forensic evidence offered significant support for
    the Crowns contention.

THE GROUNDS OF APPEAL

(i)

The instruction on intoxication as it related to planning and
    deliberation

[14]

It
    is helpful to begin a consideration of this ground of appeal by setting out the
    instructions that the trial judge properly provided to the jury. He correctly instructed
    the jury on the issue of intoxication as it related to the intent required for
    murder under s. 229(a) of the
Criminal Code
.  He thoroughly and
    even-handedly reviewed the evidence of intoxication in the course of his
    instructions on the intent required for murder. The trial judge also gave to the
    jury the correct definitions of planning and deliberation and told the jury
    that evidence of intoxication was relevant to whether the Crown had proved planning
    and deliberation.

[15]

Counsel
    contends that the trial judge failed to make it clear to the jury that even if
    the evidence of intoxication did not leave the jury with a reasonable doubt on
    the issue of intention under s. 229(a), the jury must consider whether the same
    evidence left the jury with a reasonable doubt on either planning or deliberation. 
    Counsel argues that the trial judge should have told the jury that the degree
    of intoxication needed to leave the jury with a reasonable doubt in respect of
    planning or deliberation may be less than the degree of intoxication required
    to leave the jury with a reasonable doubt on the issue of intent under s.
    229(a).

[16]

The
    applicable law comes from
R. v. Wallen
, [1990] 1 S.C.R. 827. McLachlin
    J., speaking for the majority, on this point, said at para. 38:

The judge was obliged to instruct the jury on the legal
    requirements for first degree murder.  He was required to explain to the jury
    what is required for a finding that the murder was planned and deliberate.  He
    was obliged to tell them that in determining whether those requirements were
    met they should consider the accuseds intoxication, and that this
    consideration is separate and distinct from consideration of his intoxication
    with respect to the capacity to form the intent to murder.  Those are the
    essential legal instructions.  The degree of drunkenness required to negative
    capacity to formulate and carry out a plan is a question of fact for the jury. 
    In deciding this question the jury will take into account the complexity of the
    plan and the degree of intoxication demonstrated by the evidence.  It is
    evident to anyone who directs his mind to the matter that the degree of
    intoxication required to negative capacity to plan and execute a murder may be
    less than the degree required to negative intent to kill.  While it might be
    useful to tell the jury this expressly, failure to do so is insufficient to
    vitiate the charge, the matter being one of fact rather than law and one with
    which the jury is quite capable of dealing provided it has been properly
    instructed on the legal elements I have mentioned as well the facts.

[17]

The
    instructions provided by the trial judge contain all of the essential legal
    instructions described by McLachlin J. in the above quoted passage. The trial
    judge chose not to make a comparison between the degree of intoxication
    required to leave the jury with a reasonable doubt on planning or deliberation
    and the degree of intoxication required to leave a reasonable doubt on the
    issue of intent. As McLachlin J. states, the failure to make this comparison
    for the jury does not vitiate the charge. A jury is capable, having been
    given the proper definitions of planning and deliberation and heard the
    evidence of the nature of the planning alleged and the evidence of intoxication,
    of determining the effect, if any, of intoxication on the Crowns claim that
    the appellant planned and deliberated upon the commission of the murder.

[18]

As
    the passage quoted from
Wallen
makes clear, the essential message to
    the jury is that intoxication applies separately to the issue of intent and the
    issue of planning and deliberation. The jury must consider the evidence of
    intoxication in respect of those issues separately. A jurys finding that the
    accused had the intent required for murder despite the evidence of
    intoxication, is not determinative of whether the same evidence leads to a
    reasonable doubt on the issues of planning and deliberation.

[19]

The
    language used by the trial judge and the manner in which the trial judge
    structured his instructions, clearly conveyed to the jury that it must consider
    the impact of intoxication on planning and deliberation even though the jury
    was satisfied that intoxication did not affect the formation of the intent
    required for murder. The potential impact of the evidence of intoxication on
    planning and deliberation would be equally clear to the jury in light of the
    concise, straightforward definitions of planning and deliberation given to them
    by the trial judge.

(ii)

The trial judges comments on the evidence of the defence toxicologist

[20]

Counsel
    submits that the trial judge made two comments on the evidence of the defence
    toxicologist which amounted to an unwarranted intrusion on the jurys
    fact-finding responsibilities and unfairly undermined the case for the defence.

[21]

We
    see no need to set out the specific passages referred to by counsel. Both
    comments made by the trial judge were supported by the evidence and neither
    unfairly diminished the evidence of the toxicologist, or undermined the
    position advanced by the defence.

[22]

In
    rejecting this ground of appeal we make two additional observations. First, the
    charge as a whole was balanced and even-handed. On any objective view this 
    charge cannot be read as an attempt by the trial judge to point the jury in any
    particular direction. Second, trial counsel made no objection to either comment
    made by the trial judge. If the comments by the trial judge had the disastrous
    effect on the defence now argued by counsel, surely experienced trial counsel
    would have said something.

III

[23]

The
    appeal is dismissed. We do not reach the application of the curative proviso as
    we find no error in law. We do however acknowledge the force of Crown counsels
    submission that the Crowns case on the first degree murder charges was so
    overwhelming as to render harmless any error in the instruction on intoxication
    as it related to planning and deliberation.

Released: DD  NOV 18 2015

Doherty J.A.

John Laskin J.A.

M. Tulloch J.A.


