



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. French, 2017 ONCA 460

DATE: 20170606

DOCKET: C55648

Feldman, MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David French

Appellant

David French, acting in person

Jill R. Presser and Andrew Menchynski, appearing as
amicus
    curiae

Roger Pinnock, for the respondent

Heard: May 12, 2017

On appeal from the conviction entered on July 15, 2010
    and the sentence imposed on October 20, 2010 by Justice Gladys I. Pardu of the Superior
    Court of Justice, sitting with a jury.

Feldman J.A.:


Overview

[1]

The appellant was convicted by a jury of second degree murder of his
    common law partner. The trial judge imposed a 17 year period of parole
    ineligibility. The appellant appeals both his conviction and sentence. Written
    and oral submissions were made by
amicus
as well as by the appellant.

[2]

Amicus
raised two grounds of appeal against conviction. The
    first related to the trial judges treatment of new evidence that emerged
    during jury deliberations. The second error alleged is that the trial judge
    erred by improperly limiting the cross-examination of the officer-in-charge. The
    appellant also appeals against sentence, supported by
amicus
. In
    addition, he advanced on his own a number of arguments regarding his
    conviction.

[3]

We do not accept either
    of
amicus
grounds of
    appeal, nor do we accept the appellants. For the reasons that follow, the
    appeal is dismissed.

Background

[4]

The victim was found in an armoire with ligature marks around her neck
    and threads from a blue terry cloth bathrobe. When the appellant was initially
    interviewed by the police, he denied any involvement. They asked about a
    bathrobe. He said he had a blue one but did not know where it was, but he
    thought it was either at the victims apartment where he and the victim had
    lived or at his grandmothers.

[5]

A few weeks later, after visiting a religious ministry, the appellant
    walked into a police detachment in Niagara, refused the offer of a lawyer, and
    confessed to the murder, saying that he had strangled the victim with his hands
    and with the blue bathrobe. He later returned and cut her down. The appellant
    was charged with first degree murder.

[6]

At his trial, the appellant recanted his confession. His explanation
    for confessing falsely was to prevent the victims death being ruled a suicide
    so that her son would not be denied insurance proceeds, and to obtain
    disclosure of police files to find the real killer, who he believed was an
    enemy of his from organized crime.

[7]

The day after the case went to the jury and while they were in the
    course of deliberating, the victims mother, who was not present during the
    charge, read the jury charge and learned for the first time that the weapon was
    a blue bathrobe. She told the Crown that she had found a blue terry robe
    belonging to the appellant at the victims home, following the murder, and
    threw it out along with some other clothes belonging to the appellant. The
    Crown advised defence counsel and the trial judge.

[8]

The Crown asked for a mistrial. Defence counsel consulted with the
    appellant, considered the matter overnight and told the trial judge that the
    defence agreed that the new evidence had to be placed before the jury, but that
    the defence did not want a mistrial. He submitted that his client was in
    custody and wanted the trial to continue. The trial judge accepted the position
    of the defence and ruled that the jury would be given the evidence but no
    mistrial would be declared. The evidence was put before the jury by an agreed
    statement of facts. Both counsel made brief addresses on the significance of
    the new evidence, and the trial judge gave a brief recharge, following which
    the jury continued its deliberations.

Amicus
First Ground of Appeal Against Conviction

[9]

Amicus
now submits that the trial judge erred by failing to
    order a mistrial in light of the prejudicial effect of the new evidence and the
    Crowns address to the jury on its significance. Alternatively,
amicus
submits
    the trial judge erred by failing to instruct the jury to recommence their
    deliberations from the beginning.

[10]

We
    do not agree that the trial judge erred by failing to declare a mistrial.

[11]

It
    is clear from the record that the defence wanted the evidence to be given to
    the jury and did not want a mistrial. We agree that ultimately the decision was
    for the trial judge and that prejudice to the accused is the prime
    consideration. However, where the defence makes its position very clear, the
    trial judge is entitled to accept that the defence does not believe that the
    course of action proposed will be prejudicial to the accused.

[12]

The
    appellant was at the end of a seven-week trial. Declaring a mistrial would have
    caused substantial further delay. We would expect a trial judge acting
    judicially to accept the position of the defence unless she saw some potential
    prejudice that would override consideration of the wishes of the accused.

[13]

Amicus
submits the trial judge misunderstood the potential prejudice the new evidence
    posed to the accused. The trial judge only admitted the new evidence on the
    understanding that it could not help the Crown, but in fact the evidence cut
    both ways.

[14]

A
    close examination of the record discloses that although the trial judge did
    state during her ruling the evidence could not help the Crown, when Crown
    counsel previewed what she intended to tell the jury, her proposed submissions
    were that the evidence bolstered the Crowns case in a number of ways. It
    enhanced the credibility of the victims mother who had testified that there
    had been problems between the victim and the appellant, and it supported the
    Crowns position that the appellant had told the truth when he confessed to
    killing the victim using the blue robe.

[15]

In
    response, both the trial judge and defence counsel acknowledged that they
    expected the Crown would take those positions with the jury. Therefore, they
    knew that the jury could draw both exculpatory and an inculpatory inferences
    from the new evidence.

[16]

Amicus
also submits that the new evidence should not have been disclosed to the jury
    because by the time it came to light, the jury had already reached the point in
    their deliberations where they had determined that the appellant was the
    killer. This was clear, they submit, from the jurys early question about the
    evidence that would disclose the appellants state of mind, together with the
    explicit jury instructions directing the jury to decide the issues in order,
    first determining whether the appellant had caused the death of the victim
    before turning to his state of mind.

[17]

Amicus
submits that it was therefore too late to introduce new evidence and expect the
    jury to be able to consider it as exculpatory of the appellant. Further, in her
    recharge, the trial judge failed to tell the jury that they now had to start
    their deliberations from the beginning. Both these errors caused irreparable
    prejudice to the appellant.

[18]

We
    do not accept this submission. We agree with the Crown that it is not possible
    to know what stage the jury had reached in its deliberations just because of
    the question it asked. They could well have been doing an overview of the
    issues before beginning to address them sequentially as instructed by the trial
    judge. This is consistent with this courts judgment in
R. v. Parks
(1993), 84 C.C.C. (3d) 353 (Ont. C.A.). During jury deliberations in
Parks
,
    the trial judge made corrections to the charge after the jury had already asked
    a question about provocation. On appeal, the appellant submitted that the
    question indicated the jury had already found against the appellant on the
    issue of identity. In rejecting this submission, Doherty J.A. explained at p.
    358:

I cannot agree with the appellant's submission. That submission
    requires that I assume the jury
had
reached a
    definite conclusion that the appellant had killed the deceased. It also
    requires that I assume that because the jury had reached that conclusion, they
    chose to pay no heed to the corrections made by the trial judge. I will neither
    speculate as to what findings, if any, the jury had made when it addressed its
    second question to the trial judge, nor assume that the jury did not listen to
    his corrections and consider those corrections in their subsequent
    deliberations. This ground of appeal fails.

[19]

We
    also agree with the Crown that the decision of Trotter J. (as he then was) in
R.
    v. Drysdale
, 2011 ONSC 5451, 275 C.C.C. (3d) 219, is distinguishable. In that
    case, the trial judge in a judge-alone trial had already rendered his verdict
    and reasons for decision including negative credibility findings regarding the
    accused by the time the new evidence emerged. Trotter J. indicated that he
    could not consider the new evidence appropriately at that stage of the
    proceedings, and that if his findings remained unchanged, his decision may not
    have the appearance of fairness. In contrast, in this case, when the new
    evidence was given to the jury, no verdict had been reached and the jury was in
    the course of its deliberations. The concerns expressed by Trotter J. therefore
    did not arise.

[20]

Further,
    we do not accept that the trial judge erred by failing to tell the jury that
    they now had to start their deliberations from the beginning. The evidence was
    put before the jury in a neutral manner as an agreed statement of facts. The
    trial judge gave brief instructions that told the jury to consider the new
    evidence as part of the evidence as a whole. We see no error in her instructions.

Amicus
 Second
    Ground of Appeal against Conviction

[21]

Amicus

    second ground of appeal against conviction is that the trial judge erred by not
    allowing the appellant to cross-examine one of the lead police investigators
    about information from a confidential informant that the appellant had ties to
    organized crime and enemies in the organized crime community. The defence
    wanted this evidence to rebut a Crown allegation of recent fabrication in
    connection with the appellants recantation and his allegation that one of his
    enemies had committed the murder. The trial judge refused to allow the
    cross-examination because it would only elicit hearsay, and no proper
    application had been brought based on necessity and reliability.

[22]

On
    appeal,
amicus
argues that the trial judge erred in holding the
    defence sought to adduce this evidence for a hearsay purpose. The evidence
    could have been admitted only for the fact that it was said to rebut the
    allegation of recent fabrication. The defence did not seek to admit the
    statement for the truth of its contents.

[23]

We
    reject this submission and agree with the trial judge that the evidence was
    hearsay and had to go in for the truth of its contents to corroborate the
    appellants evidence. The appellants trial counsel specifically stated that he
    sought to adduce this evidence as some corroboration for the information that
    David French had given to the authorities.

[24]

Likewise,
    in the circumstances of this case, this statement was not admissible to rebut
    an allegation of recent fabrication.

[25]

Setting
    aside the fact that the informants information was not a prior consistent
    statement by Mr. French himself, the Crown was not making an allegation of
    recent fabrication. On the application, Crown counsel confirmed that in
    cross-examination they would not suggest to the appellant this is the first
    time youre saying that.  And the Crown never did so. Although Crown counsel
    ultimately suggested Mr. French was not telling the truth, the Crown did not
    suggest to him that he had changed his story because of a new motive to lie. Put
    simply, the allegation was merely one of fabrication, not recent fabrication.
    For that reason, the prior statement had no probative value unless it was true.
    It was either irrelevant or hearsay.

[26]

The
    trial judge also left it open for the appellant to renew the application, if a
    proper foundation were laid for it,  but he did not do so.

[27]

Amicus
also complains that in Crown counsels cross-examination of the appellant and
    during her closing submissions, she impugned the appellants veracity with
    respect to his suggestion that he had enemies in biker gangs, contrary to her
    earlier assertion that she did not propose to do that but only to suggest the
    implausibility of his stated reason for falsely confessing to the murder. While
    the Crown may have marginally overstepped her stated intent, she was entitled
    to challenge the appellant on this crucial issue. And as noted, the appellant
    did not then seek to renew the application to have the jury hear from the
    police officer a report of what the confidential informer had said about the
    appellants biker connections. We therefore reject this ground of appeal.

The Sentence Appeal

[28]

Amicus
also supports the appellants appeal against sentence.
Amicus
submits
    that the trial judge erred in principle by imposing a 17 year parole
    ineligibility term which was outside the range of 12 to 15 years set by this
    court in
McKnight
(1999), 135 C.C.C. (3d) 41 (Ont. C.A.).
Amicus
submits that if 17 years was in the range, the sentence is manifestly unfit.
    The trial judge also erred by finding that the murder was planned and treating
    that as an aggravating factor, when the jury acquitted the appellant of first
    degree murder.

[29]

In
    our view, the trial judge made no errors in principle in imposing the 17 year
    parole ineligibility period.

[30]

As
    first degree murder requires both planning and deliberation, the trial judge
    was entitled to accept the appellants confession that he planned the murder,
    while accepting that the jurys acquittal from first degree murder suggested
    that they found no deliberation. The jury was instructed that a deliberate act
    is one that the actor has taken time to weigh the advantages and disadvantages
    of and is a considered and carefully thought out act. Although it will
    doubtless be rare for a jury to find lengthy planning without deliberation, the
    two findings are not
prima facie
incompatible or contradictory. We see
    no basis to interfere with the trial judges conclusion.

[31]

With
    respect to the range, cases from this court including
R. v. Wristen
(1999), 141 C.C.C. (3d) 1, and
R. v. Czibulka
, 2011 ONCA 82, 267
    C.C.C. (3d) 276, allow a range up to 17 years in circumstances where there are
    no mitigating factors or remorse. The trial judges determination is entitled
    to deference. The sentence was not unfit.

The Appellants Additional Issues

[32]

The
    appellant based his submissions substantially on the ground that his s. 7
Charter
rights had been infringed by the police before the death of the victim and by
    the unjust treatment he says he has suffered while incarcerated. He also raises
    issues regarding how the evidentiary record was developed at trial, but these
    could only be addressed if a new trial were to be ordered. The appellant would
    like his s. 7
Charter
rights to be determined by the Supreme Court of
    Canada, and seeks the remedy of a stay or acquittal based on the s. 7
Charter
breaches.

[33]

As
    there was no s. 7
Charter
issue raised at trial, and no record on
    which a
Charter
issue could be discussed or determined, there is no
    basis for this court to address a s. 7
Charter
issue or to grant the
    remedy requested.

Conclusion

[34]

The appeal against conviction is dismissed. Leave to appeal sentence is
    granted but the appeal is dismissed.

Released: K.F. June 6, 2017

K.
    Feldman J.A.

I
    agree. J.C. MacPherson J.A.

I agree. M.L. Benotto J.A


