2013 QCCA 562, 2013 QCCA 562

MacNeil c. R. 2013 QCCA 562 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004078-083 (500-01-007401-067) DATE: MARCH 28, 2013 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. JEAN BOUCHARD, J.A. JAMIE RONALD MACNEIL APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] Jamie Ronald MacNeil was convicted of murder in the first degree by a jury presided by the Honourable Marc David of the Superior Court, District of Montreal, on March 11, 2008. He appeals the verdict.

CONTEXT [ 2 ] At about 2:30 a.m. on June 3, 2005, Éric Lafrance was killed by three bullets to the head when he was leaving a bar located on St. Catherine Street West in Montreal. [ 3 ] The evidence of the prosecution rests essentially on a videotape recording, the testimony of eyewitnesses and DNA analysis. [ 4 ] Two surveillance cameras recorded a portion of the events leading up to the murder. The recording shows two suspects, including one man who, according to the theory of the prosecution, is the appellant wearing a hooded sweater.

A cigarette butt was found at the scene and was later subject to DNA analysis. [ 5 ] On May 11, 2006, the appellant was arrested for offences unrelated to the murder. A warrant authorizing the taking of a sample of bodily substances from the appellant for the purpose of DNA analysis was issued on June 9, 2006. The analysis of this sample later allowed the identification of the appellant's DNA on the cigarette butt. GROUNDS OF APPEAL [ 6 ] The appellant raises six grounds of appeal that may be reformulated as follows: 1.

The trial judge erred in ruling the DNA evidence to be admissible notwithstanding the fact that the appellant invoked a breach of his right to privacy and sought the application of subsection 24(2) of the Charter; 2. The trial judge erred in failing to give specific instructions to the jury in order to correct the prejudicial comments made by Crown counsel during oral arguments to the jury; 3. The trial judge erred in his instructions pertaining to the essential elements of murder in the first degree; 4. The trial judge should have given a special instruction on the absence of motive; 5.

The remark made by a police officer during his testimony bearing on the appellant's tattoo caused the appellant irreparable harm; [ 7 ] All of the appellant’s arguments should be dismissed. ANALYSIS [ 8 ] In respect of the first ground of appeal, the appellant submits that a first sample taken in 2005 from an object that belonged to him, and done without the authorization of a judge, was obtained in violation of his rights. He argues that this justifies the exclusion of the second sample and the results of the analysis in 2006, notwithstanding the fact that a warrant had been issued by a justice of the

peace in this case. [ 9 ] On the sworn affidavit filed in evidence, all the information relating to the first sample was redacted as a means of protecting the identity of a police informant. [ 10 ] The Crown answered the argument of defence counsel by saying that it had no intention of using the evidence relating to the first sample. The trial judge dismissed the motion to exclude the evidence for two reasons. [ 11 ] Firstly, the appellant only offered speculative hypotheses as to how his reasonable expectation of privacy had been violated when the first sample was taken.

This was understandable give the fact that the appellant did not have access to the complete affidavit by reason of the police-informant privilege. The appellant in no way, however, sought to obtain access to the redacted portion of the affidavit by demonstrating that access was necessary because his innocence was at stake.

The appellant had therefore failed to show that his Charter rights had been violated. [ 12 ] As a second ground for dismissing the motion, the trial judge concluded that even if one ignored the redacted materials, the remaining portion of the affidavit contained enough information to justify the warrant. [ 13 ] This second reason given by the judge is sufficient to decide the matter. Indeed even if all the redacted materials are completely set aside, the affidavit contained sufficient evidence to justify the issuance of the warrant by the justice of the peace pursuant to subsection 487.05(1) Cr. C.

There is no doubt that the designated offence of murder was committed (para. 487.05(1)(

a) Cr. C.). The cigarette butt was found at the place the murder was committed (para. 487.05(1)(

b) Cr. C. ). The fact that the appellant was a party to the offence is sufficiently demonstrated by the affidavit in that it indicates that he had been identified by two witnesses (para. 487.05(1)(

c) Cr. C .). In addition, the tattoo in the shape of a spider web that the appellant bears on his neck corresponds to the tattoo described by certain eyewitnesses. Finally, the appellant was a smoker at the time and there were reasonable grounds to believe that the taking of samples authorized by the warrant would provide evidence that the substance found on the cigarette butt came from the appellant (para. 487.05(1)(

d) Cr. C. ). To conclude on this point, the appellant has shown no error in the trial judge’s decision to exclude the evidence. [ 14 ] As to the second ground of appeal, while some of the comments made by Crown counsel may well have been ill-chosen, they did not have the prejudicial effect alleged by the appellant. [ 15 ] Crown counsel compared the evaluation of the evidence to a puzzle. This was not, it should be said, an instruction in law given by the judge but rather an example given by Crown counsel to indicate to the jury the importance of considering the whole of the evidence.

In the same breath, however, counsel reminded members of the jury that there were only bound, in law, by the instructions given by the judge. In the instant case, those instructions were beyond reproach. In sum, whether or not the example of the puzzle was ill-chosen, the appellant suffered no serious prejudice from its use. [ 16 ] The appellant submits that Crown counsel also denigrated the lawyer for the defence when she said the following: “Defence lawyers will often tend to isolate the proof […]. Another tactic of the defence is the sidetracking evidence or strategy […].

The defence will want to concentrate on a non important fact or non existing fact”.

Crown counsel also allegedly ridiculed the work of the defence in speaking of what the appellant characterized as the “theory of the invisible third suspect”. [ 17 ] After identifying the errors made by both parties in their respective oral arguments to the jury, the judge chose not to emphasize the mistakes committed by either side but nevertheless made plain, in his supplemental instructions to the jury, the following: You should not draw a negative inference against one of the parties in this case based on counsel strategy, based on counsel behaviour or based on counsel submissions.

So those are the points of clarification. [ 18 ] The Crown’s arguments most certainly could have been formulated otherwise. That said, one must also take into account the judge’s instructions that followed as a means of determining “whether the objectionable comments are seen to have deprived the accused of his right to a fair hearing on the evidence presented at trial”. [1] The right to a fair hearing was in no way compromised here. [ 19 ] The Crown presented its arguments first. Crown counsel therefore had to anticipate the arguments that would be made by the defence.

The defence did indeed insist on the fact that it was possible that another person, other than Mr. MacNeil as allegedly seen in the video recording, might have shot Eric Laurence. The defence also raised before the jury the Crown’s decision not to have one of the eyewitnesses testify, offering a hypothesis as to what that person’s version of the events might have been. The judge was thus right to say that neither party was free from criticism.

In the circumstances, the appellant has failed to convince us that he suffered prejudice or that the judge erred. [ 20 ] As for the third ground of appeal, the appellant is of the view that the judge mistakenly suggested that the appellant committed the acts upon which the charges rested when he said the following: For you to find Jamie MacNeil guilty of first degree murder Crown counsel must prove each of these essential elements beyond a reasonable doubt and I would ask you to write these down. The first element is that Jamie MacNeil caused the death of Éric Laurence, causation.

Jamie MacNeil caused the death of Éric Laurence. The second element is that Jamie MacNeil caused the death of Éric Laurence unlawfully. The third is that Jamie MacNeil had the state of mind required for murder, state of mind, and the fourth element is that Jamie MacNeil, the murder of Éric Laurence was both planned and deliberate. Therefore, the murder was planned and deliberate. If Crown counsel has not satisfied you beyond a reasonable doubt of each of these elements, you must find Jamie MacNeil not guilty of first degree murder.

If Crown counsel has satisfied you beyond a reasonable doubt of each of these essential elements, you must find Jamie MacNeil guilty of first degree murder. [ 21 ] This excerpt should not however be read in isolation from the balance of his instructions. The judge plainly indicated that the

most important question remained that of the identity of the murderer: Each essential element may be made into a question for you to consider carefully an answer. However, before dealing with the essential elements of first degree murder, I must instruct you on what I consider to be the most important issue of this trial, that is whether the evidence convinces you beyond a reasonable doubt that MacNeil is the person who shot and killed the victim. The identity of the killer is also an essential element of the indictment.

The Crown is obliged to prove beyond a reasonable doubt that MacNeil is the one who shot and killed the victim. I suggest to you that the identity of the killer is the key issue of this trial. This is nothing more than my opinion on the matter and you are perfectly free to disagree with me and deliberate as you wish, according to the priorities and the issues you identified. You are the masters of the facts and of your deliberations. [ 22 ] The judge returned to question of the identification at the request of the defence: The second point is the following.

In explaining the essential elements of murder, I may have, in appearance, asserted that Jamie MacNeil is the identified killer. For instance, I asserted that Jamie MacNeil was identified on the videotape recording of the Ailes de la mode security system in explaining the essential element of a first degree murder being planned and deliberate. It is absolutely essential that you understand that any such assertion on my

part is simply, and nothing more, stating the Crown's view of the case. In no way are you to understand that, in fact, I conclude the Crown has succeeded in proving beyond reasonable doubt the identity of the killer. I've already told you that the issue of identity is the most fundamental question you will have to resolve in this case. It is the first essential element you should address and put your mind to.

Only once you are [convinced] beyond a reasonable doubt that the identity of the killer is proven, after consideration of the whole of the evidence, also only once that you are convinced beyond a reasonable doubt that the identity of the killer is in fact Jamie MacNeil should you address the other essential elements of first degree murder, that is causation, unlawfulness, a state of mind that is proper to murder and whether the murder is planned and deliberate.

If you conclude that the Crown has failed to convince you beyond a reasonable doubt that the shooter is Jamie MacNeil then, you must acquit Jamie MacNeil of the murder of Éric Laurence. The defence submits that the identification in this case is incapable of convincing you that Jamie MacNeil is the killer. [ 23 ] This ground of appeal is thus without merit. [ 24 ] At the hearing on appeal, counsel for the appellant made a further argument.

Counsel submits that the judge erred in incorrectly summarizing the thesis of the defence, in particular in failing to emphasize sufficiently the weaknesses in the Crown’s evidence. [ 25 ] The thesis of the defence is that the Crown did not prove guilt beyond a reasonable doubt. Given that the parties pleaded extensively as to the various strengths and weaknesses of the Crown’s evidence to the jury, in particular as the evidence relates to the identity of the murderer, the judge cannot be criticized for not having drawn the jury’s attention to these weaknesses as well.

Everything had been said on this score by the time he began his final instructions.

It was not necessary in the circumstances for the judge to distinguish the elements of proof that might have been drawn again to the attention of the jury from those that did not. [ 26 ] In addition, the oral arguments made by counsel for both parties must be considered when analysis of the instructions is undertaken, [2] and there is no reasonable basis for fearing in this case that the jury had not been properly made aware of the arguments of the defence. [ 27 ] Moreover, even if some of the same terms were used to describe two distinct concepts, the instructions relating to the “planned” and “deliberate” character of the murder are satisfactory.

The judge described the two concepts as follows: Not every murder is first degree murder. To prove that Jamie MacNeil's murder of Éric Laurence was first degree murder, Crown counsel must prove beyond a reasonable doubt not only that Jamie MacNeil murdered Éric Laurence, but also that the murder was both planned and deliberate. It is not enough for Crown counsel to prove that the murder was planed or that the murder was deliberate. In order to establish that the murder of Éric Laurence was first degree murder, Crown counsel must prove both.

It is the murder itself that must be both planned and deliberate, not something else that Jamie MacNeil did or said. Plan is a word that we often use when talking to other people. It means that… it means the same thing here that it does when we say it to others. Plan means a calculated scheme or design that has been carefully thought out. The consequences of it have been thought over and [sized] up. The plan does not have to be complicated, nor sensible. It may be a very simple plan. One that is quite easy to set up.

An important factor is the time it took to develop the plan, not how much or little time it took between developing it and the carrying out. One person may prepare a plan and carry it out immediately. Another person may prepare a plan and wait a while, even quite a while to carry it out. A planned murder is one that is committed as a result of a scheme or plan that has been previously formulated or designed. It is the implementation of that scheme or design. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill, is not a planned murder.

Deliberate is not a word that we often use when speaking to other people. It means considered, not impulsive, carefully thought out, not hasty or rash, slow in deciding, cautious. A deliberate act is one that the actor has taken time to weigh the advantages and disadvantages of. The deliberation must take place before the act of murder starts. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill, is not a deliberate murder. It is for you to say whether the murder of Éric Laurence was both planned and deliberate.

[ 28 ] All the requisite elements for properly describing a planned and deliberate murder were included in the judge’s instructions. It is plain when the instructions are considered as a whole that the two concepts are distinct and that the proof of each of them is required. [ 29 ] Moreover, both the planned and deliberate aspects of the murder were amply established. The evidence that supports this conclusion includes: The murderer was waiting at the door of the bar for a significant period of time; The murderer used a firearm that he already had in his possession; The firearm initially jammed.

The murderer had to reload before firing three times, aiming at the head of his victim; There was no exchange or confrontation between the murderer and the victim; The only words spoken were those of the murderer: “Good luck, motherfucker”; While other persons were present, the murderer only attacked the victim; The murder was committed very quickly. [ 30 ] In respect of the fourth ground of appeal, it must be observed that while there was no evidence of motive, there was no evidence of an absence of motive either.

No special instructions were called for in the circumstances. [3] [ 31 ] Finally, the fifth ground of appeal is without merit. [ 32 ] The police used a photograph of the appellant in which his spider web tattoo was not visible. In so doing, the police took care not to influence the witnesses inappropriately by presenting a photograph of the appellant in which his tattoo would be visible. As it was difficult to find other persons who had a similar appearance to that of the appellant and who had the same tattoo, it was decided to remove the tattoo from the appellant’s photograph.

When called upon to explain this decision, the police officer testified as follows: Alors il était difficile de trouver des sujets avec soit le… encore plus difficile d'avoir le même tatou que monsieur MacNeil, mais avec des tatous en particulier c'est plus difficile d'avoir des… en fait c'est impossible d'avoir… c'était impossible de trouver des personnes qui avaient le même tatou que monsieur MacNeil. [4] [ 33 ] The appellant alleges that the above quotation constitutes a tendentious allusion to the fact that the appellant was necessarily the person who fired the weapon.

The answer is understandable, however, in the circumstances. In addition, the judge gave an explicit instruction which settled the question: Number seven concerns detective-sergeant Lafrance's comments on the composition of the photo line-up, the creation of the photo line- up. During his testimony in chief, detective-sergeant Lafrance mentioned it was impossible to find subjects with the same tattoos as on Jamie MacNeil for the purpose of creating a photo array for a line-up. He mentioned this when explaining why all tattoos were removed from the subjects.

I'm instructing you that you are to completely disregard this testimony and to cast it out of you minds. The reason for this is very simple. It could be wrongly inferred from these words that MacNeil is in fact the killer only because he had these tattoos. Lafrance is certainly not able to come to any such conclusion as he was not a witness of the events of June 3 rd 2005. It would be wrong for you to infer any form of identification evidence from this comment. In fact, the only reason you are to understand the tattoos were removed from the subject pictures is [in reference] to the accused.

Detective sergeant Lafrance later mentioned this reason in his testimony. [ 34 ] In conclusion, the appellant had a fair trial and he has shown no error susceptible of altering the verdict, the evidence in support of which was overwhelming. [ 35 ] FOR THESE REASONS , the Court: [ 36 ] DISMISSES the appeal. FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. JEAN BOUCHARD, J.A. Mtre Véronique Robert For the Appellant Mtre Kathleen Caron Criminal and Penal prosecuting attorney

For the Respondent Date of hearing: March 20, 2013