



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Clarke, 2014 ONCA 777

DATE: 20141106

DOCKET: C56074

Cronk, LaForme and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andre Clarke

Appellant

Lindsay Daviau, for the appellant

Amy Alyea, for the respondent

Heard:  October 22, 2014

On appeal from the convictions entered on October 25,
    2010 and the sentence imposed on June 15, 2012 by Justice Michael R. Dambrot of
    the Superior Court of Justice, sitting with a jury, with reasons for sentence
    reported at, 2012 ONSC 2776.

BY THE COURT:

[1]

The appellant was convicted of manslaughter, unlawful
    confinement, robbery, and use of an imitation firearm. He and his co-accused,
    Nevin Joseph, tied up the owner of a flower shop they were in the process of
    robbing and covered her face in duct tape, which resulted in her death by
    suffocation. The appellant appeals against conviction on the basis that the
    trial judge erred in refusing to grant his
Corbett
application:
R. v. Corbett,

[1988] 1
    S.C.R. 670
. He also seeks leave to
    appeal his sentence and, if leave is granted, appeals from sentence, as
    discussed below.

The Conviction Appeal

[2]

The conviction appeal focuses on the trial judges
Corbett
ruling.

[3]

Mr. Joseph was called as a Crown witness. He testified that he
    and the appellant committed a series of armed robberies in February 2008. The
    fourth robbery resulted in the victims death. Mr. Joseph placed direct
    responsibility for taping the victims mouth and nose on the appellant. The
    appellant denied any involvement in the events that led to the charges.

[4]

The appellant has a lengthy criminal record, which the trial judge
    laid out in his ruling. The appellant argues that the trial judge erred by
    refusing to grant his
Corbett
application concerning his prior robbery
    convictions. He says: at a minimum, the trial judge should have removed the
    convictions that are similar to the charges for which [the appellant was] being
    tried, particularly his prior convictions for robbery.

[5]

A
Corbett
ruling is discretionary, and an appellate
    court ought not to intervene absent error in principle, a misapprehension of
    material facts, or an exercise of the discretion which, in the totality of the
    circumstances, must be regarded as unreasonable:
R. v. Mayers
, 2014
    ONCA 474, at para.3. There is no basis for appellate intervention in this case.

[6]

The trial judge recognized his obligation to balance the
    probative value of the record against the prejudicial effect of its admission
    in order to ensure a fair trial. He noted, correctly, that the record contained
    a number of offences involving dishonesty that would be highly probative on
    the issue of the likely truthfulness of the accused.

[7]

In the credibility contest between Mr. Joseph and the appellant,
    the trial judge noted that Mr. Josephs credibility had been vigorously
    challenged on the basis of his involvement in the string of robberies leading
    up to the charges in the indictment.

[8]

The trial judge was troubled about admitting evidence of the
    appellants past robbery convictions, echoing the Supreme Court in
Corbett
by observing that: I am naturally most chary of admitting evidence of similar
    crimes. He considered editing the robbery convictions out of the record, but
    concluded that doing so would significantly minimize both the seriousness and
    the persistence of the record, important considerations when assessing
    credibility. He added: to omit the robberies in this case would
    overwhelmingly reduce the seriousness of the record, and create an artificial
    gap in it, from 1992 to 1999, followed by a few minor convictions. The
    remaining record, after omitting the robberies, would have had the effect of
    deleting any indication of crimes of violence apart from the appellants
    youthful assault conviction in 1991.

[9]

The trial judges overriding consideration was that, without the
    inclusion of evidence of the appellants prior robberies and associated
    convictions, the jury would have a false basis to consider the competing versions
    of the events [in] issue if they are left to believe that the accused, unlike
    Mr. Joseph, had an unblemished past. He pointed out that: without involvement
    in the robbery, there is no basis to conclude that the accused was involved in
    the murder. This favoured the introduction of the appellants whole record.

[10]

The appellant takes particular aim at two lines in the ruling in
    which the trial judge states: I acknowledge that counsel for the accused did
    not broaden the attack on Mr. Josephs credibility to an attack on his
    character in general. In this case, I see little significance to this
    distinction. We read this not as an erroneous basis for admitting the robbery
    record, but simply as an acknowledgement that vigorous cross-examination on
    robbery by its very nature implicates the character of the witness, not only
    his credibility. In our view the trial judge was fully alive to the distinction
    between credibility and character.

[11]

The trial judge concluded that the balance between prejudice and
    probative value obliged him to admit the robbery convictions, but he took steps
    to tailor the ruling and to blunt its impact from the viewpoint of similar act
    evidence, by excluding the appellants firearm, weapons and disguise
    convictions associated with his 1994 robbery convictions. In his view, this
    would minimize the extent of the similarities between those offences and the
    one in the indictment, which might otherwise take on the trappings of near
    signature. He also excluded the weapons offences from the appellants 1991
    conviction. We see no reversible error in this approach or in the trial judges
    reasoning in this regard. Indeed, we agree with it.

[12]

The trial judge was alive to the need to caution the jury about
    propensity reasoning. He gave a
Vetrovec
warning in relation to Mr.
    Josephs evidence and a strong mid-trial warning to the jury about the use of
    the appellants criminal record, which he repeated in his charge. See
R. v.
    Vetrovec
, [1982] S.C.J No. 40. The appellant does not complain about the
    content of these warnings.

[13]

We view the trial judges discretionary ruling as an
    unobjectionable and careful application of the
Corbett
principles. The
    conviction appeal, therefore, is dismissed.

The Sentence Appeal

[14]

The trial judge concluded that the appellant met both the
    dangerous offender and the long-term offender criteria.  He found the appellant
    to be a long-term offender and imposed a ten year period of supervision in the
    community.  He also sentenced him to a global sentence of 18 years
    imprisonment, less eight years to reflect approximately four years of
    pre-sentence custody.

[15]

The appellant seeks leave to appeal his sentence arguing that the
    trial judge erred by attributing a state of mind to him  recklessness as to
    the likelihood of death  that was at odds with the jurys verdict of
    manslaughter.  He also submits that the sentence of 18 years imprisonment was
    outside the typical range for manslaughter.  He seeks a reduction of the global
    sentence to 12 years imprisonment, less eight years credit for pre-sentence
    custody.  He does not appeal the long-term offender finding.

(i)

The
mens rea
finding

[16]

The appellant was charged with first degree murder but was found
    guilty of manslaughter by the jury. The principal submission of the appellant
    is that, by acquitting the appellant of the murder charge, the jury must have
    accepted one of two facts: (i) the appellant did not bind the victim; or (ii) that
    he bound her but left a breath hole.  He argues that, in fashioning sentence,
    the trial judge erred in principle by relying on factual findings that the jury
    must have rejected.

[17]

We reject this submission.

[18]

The specific language complained of is found in para. 59 of the
    trial judges reasons:

The offender would have it that the verdict precludes the
    attribution of any alternative state of mind to him that aggravates the
    commission of the offence. I do not agree. The circumstances of this case lead
    me
inexorably to the view that while the offender did not
    know that what he was doing was likely to cause death, he did know that what he
    was doing to [the victim] put her at risk of death
, but he did not care.
    He was utterly indifferent to the consequences of his acts. No one of sound
    mind who taped the face of a victim as [the appellant] did, and immobilized her
    in the way that he did, making her utterly incapable of freeing herself, could
    have known less. [Emphasis added]

[19]

In our view, the trial judge was entitled to make this finding
    and did not err in citing as an aggravating factor the appellants knowledge of
    the risk of death.

[20]

There are two provisions of the
Criminal Code
that are
    important: s. 724(2)(a) makes it clear that the trial judge must accept as
    proven all facts that are essential to the jurys verdict of guilty; and  s.
    724(3)(e) stipulates that while a trial judge is entitled to find relevant
    facts for the purposes of sentencing, the Crown has the burden of proving aggravating
    facts beyond a reasonable doubt.

[21]

Here, the jurys acquittal of first degree murder implicitly
    demonstrated that it was not satisfied beyond a reasonable doubt that the
    appellant either intended to kill the victim, or that he knew that what he was
    doing was
likely
to cause death.  It was, therefore, not open to the
    trial judge, as he noted, to find that the appellant intended to cause the
    victims death, or knew that what he was doing was
likely
to cause
    death.

[22]

However, this is not what the trial judge concluded.  Instead, he
    found that the appellant knew that what he was doing to the victim
put her
    at risk of death
.  This finding is not inconsistent with the jurys
    acquittal on the first degree murder charge but it is consistent with its
    manslaughter verdict.

[23]

The leading case on the
mens rea
for manslaughter is
R.
    v. Creighton
(1993), 83 C.C.C. (3d) 346 (S.C.C.), where, at para. 12, the
    Supreme Court wrote:

[T]he test for the mens rea for unlawful act manslaughter in
    Canada, as in the United Kingdom, is (in addition to the mens rea of the underlying
    offence) objective foreseeability of the risk of bodily harm which is neither
    trivial nor transitory, in the context of a dangerous act.
Foreseeability of the risk of death is not required
[emphasis added].

[24]

Although foreseeability of the risk of death is not required for
    manslaughter, the Supreme Courts reasoning in
Creighton
does not preclude
    such a mental state for a manslaughter conviction.  In fact, there have been
    cases in which a sentencing judge considered the foreseeability of the risk of death
    in imposing a harsher sentence for manslaughter: see
R. v. Druken
,
    2005 NLTD 209, 252 Nfld. & P.E.I.R. 314, at paras. 113-119. Thus, while
    foreseeability of the risk of death is not required for manslaughter, that
    mental state is not precluded by a manslaughter conviction.

[25]

Accordingly, the trial judge in this case was entitled to make the
    factual finding  that the appellant knew that what he was doing to the victim
    put her at risk of death  to assist in the determination of an appropriate
    sentence.  Nor did he err in treating this factor as an aggravating
    circumstance. And, although he did not employ the language of beyond a
    reasonable doubt, his use of the term inexorably satisfies us that he was convinced
    to that standard of proof.

[26]

This ground of appeal is dismissed.

(ii)

The
    fitness of sentence

[27]

The appellant submits that the sentence imposed by the trial
    judge was outside the typical range for manslaughter, which he says is seven to
    twelve years.  Given this, he asks this court to reduce the global sentence to
    four years  12 years imprisonment, less eight years credit for pre-sentence
    custody.  We do not agree. In the circumstances of this case, the sentence is
    fit.

[28]

The Crown relies on this courts decision in
R. v. Devaney
,
    2006 CanLII 33666 as authority for the proposition that, although a range for
aggravated manslaughter
can be identified as 8-12 years
    ... a sentence above that range is not manifestly unfit (emphasis added).  We
    are reminded that even life sentences may be imposed in particularly serious
    cases.  In this context, we think it important to make two preliminary comments.

[29]

First, whether the trial judge described the appellants offence
    as aggravated manslaughter is of little assistance.  As this court stated at
    para. 33 in
Devaney
, labeling a subcategory of manslaughter as
    aggravated manslaughter for the purpose of sentencing is inappropriate.  As
    Feldman J.A. viewed it:

... it is not useful to attach a label to a subcategory of the
    offence, then to try to pigeonhole the facts of any case into the label.  Adding
    a descriptive label to a set of facts within the defined offence adds a level
    of complexity to the sentencing exercise that is both unnecessary and
    potentially diverting for the court and could lead to errors.

[30]

Second, the correct approach in each case is to impose a sentence
    that fits the facts and circumstances of the particular case and the particular
    offender.  Similar sentences for similar offences and offenders should be the
    objective, not naming subcategories of manslaughter for the purpose of
    comparing cases and imposing similar sentences:
Devaney
, at para. 34.

[31]

Here the trial judge referenced
Devaney
and its stern objection
    to naming subcategories of manslaughter and was alive to this issue.  He recognized
    that there appeared to be a sentencing range in more serious manslaughter cases
    of eight to twelve years imprisonment.  And, he was aware that for any case,
    there is no one correct, fit sentence.  In the end, the approach the trial
    judge ultimately took in sentencing the appellant was consistent with that
    mandated by
Devaney
.

[32]

A trial judge is entitled to deviate from the range where there
    are facts or circumstances that distinguish the situation significantly from those
    cases where sentences were imposed within the range.  This may arise from the
    nature of the victim, the nature of the crime itself, or the history or current
    circumstances of the offender.  The trial judge is entitled to impose a
    sentence that adequately reflects the significance of those facts. This may, in
    the right case, result in a sentence outside the normal range.

[33]

The experienced trial judge in this case provided thoughtful and
    thorough reasons for sentencing this offender for these offences.  He had
    absolutely no doubt that the appellant did the acts that caused the victims death. 
    He carefully reviewed the evidence and concluded that the appellant taped and
    tied the victim, and placed her in a position and place that resulted in her
    death by suffocation.

[34]

Further, the trial judge had the benefit of and relied on the
    evidence of risk provided by the psychiatric experts on the dangerous
    offender/long term offender application. He carefully considered the details of
    the appellants background and extensive criminal record.  He properly took
    into account the many callous, aggravating features of the offences, including
    the appellants state of mind and the horrifying and intimidating treatment of
    the victim throughout the masked armed robbery. And, he took into account the
    ongoing planned crime spree, which included three previous similar act
    robberies, the recruitment of the younger co-accused and the impact of the
    crimes on all the direct and indirect victims.

[35]

The trial judge described the offence as one of extreme gravity,
    and the offender as one who presents a high level of moral culpability.  Although
    he viewed this as a case that did not warrant a life sentence, he found that it
    was deserving of a sentence well in excess of 12 years in order to satisfy
    the principles of denunciation and deterrence and to promote a sense of
    responsibility in [the appellant] for the harm done to victims and an
    acknowledgment of it (para. 163).

[36]

This courts role, which is to decide if the sentence appealed
    from is demonstrably unfit, was succinctly captured by Feldman J.A. at para. 15
    in
Devaney
.  Her helpful comments guide this court in performing that
    role in this case:

One factor for the reviewing court to consider is whether the
    sentence imposed was outside the normal range, and therefore was demonstrably
    unfit because of its inconsistency with sentences imposed in similar
    circumstances.  But where the trial judge has given reasons that point to
    specifics of the victim, the crime, or the offender that warrant a sentence
    outside the normal range, it is unlikely that such a sentence will be found to
    be demonstrably unfit for that reason.

[37]

In this case, the trial judge, in deciding the fit and proper
    sentence to be imposed on the appellant, gave extensive and compelling reasons
    in which he examines the blameworthiness of the appellant, his extensive
    criminal record, the brutality of his crimes and the impact of those crimes on
    others. Although the sentence he imposed is outside the normal range for other
    particularly serious cases of manslaughter, it is not demonstrably unfit. 
    There is no reason for this court to interfere with the significant deference
    accorded to the trial judge in imposing the sentence he did in this case.

[38]

Accordingly, while the appellant is granted leave to appeal his
    sentence, the sentence appeal is also dismissed.

Released: HSL November 6, 2014

E. A.
    Cronk J.A.

H.S.
    LaForme J.A.

"P.
    Lauwers J.A."


