2010 QCCA 2348, 2010 QCCA 2348

Bujold c. R. 2010 QCCA 2348 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002490-105 (200-01-128322-082) DATE: December 16, 2010 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. JACQUES VIENS, J.A. (AD HOC) CAROL BUJOLD APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The appellant appeals from a conviction pronounced on January 22, 2010, by a jury presided by the Honourable Mr. Justice Jacques-J.

Lévesque of the Superior Court, District of Quebec, on a charge of first degree murder; [ 2 ] For the reasons of Thibault J.A., with which Rochette J.A. and Viens J.A. (ad hoc) agree; THE COURT: [ 3 ] DISMISSES the appeal. FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. JACQUES VIENS, J.A. (AD HOC) Mtre Maxime Roy Thibault, Roy For the appellant Mtre Joanne Tourville Criminal and penal prosecutor For the respondent Date of hearing: November 24, 2010 REASONS OF THIBAULT, J.A. [ 4 ] The appellant appeals from a conviction pronounced on January 22, 2010, by a jury presided over by the Honourable Mr. Justice Jacques-J.

Lévesque on a charge of first degree murder; [ 5 ] The appellant admits killing the victim. [ 6 ] At trial, his defence consisted of his statement that the murder was neither planned nor deliberate according to the

definitions

given by the relevant case law. In appeal, the appellant concedes that the instructions the trial judge delivered to the jury were beyond reproach but argues that the jury rendered an unreasonable verdict not based on the evidence because the evidence does not demonstrate that his crime was planned or that he committed a deliberate act. 1 – The facts [ 7 ] The appellant and the victim met in June of 2006. They began living together at the victim's residence in Limoilou in November of 2006. They broke up a few months later.

Eight months after their separation, the appellant returned to live at the victim's residence, but solely as a roommate. After two months of living together, the relationship between the appellant and the victim became intimate. This continued until the spring of 2008, when the victim ended things because the appellant was consuming drugs and alcohol. [ 8 ] On June 1, 2008, the appellant moved to Ste-Foy to be closer to his son who lived in that area. The appellant and the victim remained in contact, however. [ 9 ] On August 1, 2008, the appellant moved again.

He rented a room in an apartment in Limoilou, less than one kilometre from the victim's residence. That same day, he went to a florist's shop and had flowers delivered to the victim. After receiving the flowers, the victim phoned him. She apparently did not appreciate the gesture, since right after the conversation the appellant said the following to Mr. Roberge, in whose home he had rented a room: [ translation ] "I guess the bitch isn't happy!" [ 10 ] After the conversation with the victim, the appellant went to buy beer and then telephoned an agency to procure the services of a [ translation ] "masseuse".

He says that this was his first experience of this kind. He remained with the masseuse at her place until Sunday, August 3, around 9:00 a.m. [ 11 ] Once back home, the appellant took a shower, did his laundry, had some lunch, and went to the grocery store to make his purchases for the week and buy his bus tickets. He then made spaghetti sauce. He met up with his roommate Mr. Roberge (who was taking

part in a flea market not far from the apartment) in order to give him $5 to pay off his monthly rent. The appellant then returned to his apartment. [ 12 ] At trial, the appellant said he felt lonely. Around 2:00 in the afternoon, he began drinking beer. He also took some cocaine while watching television and [ translation ] "doing" the computer. He phoned the victim at 8:52 p.m. [ translation ] "I called her because I owed her money, and I wanted us to see each other the next day". As I will explain later, this aspect of the appellant's testimony was contradicted.

A witness stated that, in actual fact, the appellant wanted to meet the victim that very night. [ 13 ] According to the appellant, he had decided to kill the victim and then himself: [ translation ] "In my head I was going...I was going to bed...I was going to bed to...I had gotten my clothes ready for bed, and then all of a sudden in my head, my head told me to commit suicide...to commit suicide. And after that, in my head, it told me to kill Anne.

That's what I did, I went to get a knife, I wrote a note to my son, and I left". [ 14 ] Around 10:00 p.m., the appellant left his apartment for the victim's home, bringing with him a kitchen knife that he had concealed in his trousers. He had written two letters beforehand, one addressed to the victim's family and the other to his son. They contained his apology for the murder he was about to commit. These letters were dated and signed. [ 15 ] It took the appellant about ten minutes to walk from his home to the victim's.

He immediately went to building number..., which is connected to number ... , where the victim lives, by a corridor divided by a door. At the entrance to the building, he rang the doorbell of two apartments. One of the residents let him enter without checking his identity. [ 16 ] The appellant went to the victim's apartment. He knocked on the door and identified himself as "Eric". The victim recognized him and asked her roommate, Mr. Potvin, to call 9-1-1. At the same time, the appellant broke down the door, entering the apartment.

Armed with a knife, the appellant chased the victim's roommate around the apartment, yelling at him to leave the premises. Mr. Potvin finally fled. He then asked a neighbour to call the police. 9-1-1 was called. [ 17 ] In the meantime, the appellant closed the apartment door. He stabbed his victim seventeen times. One of the stab wounds was fatal. [ 18 ] The appellant then attempted to take his own life, stabbing himself in the throat with the knife several times. He was interrupted by a neighbour and then by the police who arrived on the scene. The appellant was brought to the hospital.

While hospitalized, he was kept under police surveillance. Constable Fournier was guarding the appellant at the hospital on the night of August 6, 2008, when the appellant made the following statements, which Mr. Fournier wrote down in his notebook: [ translation ] 6:40 p.m.: A "peanut", two beers in fifteen minutes, they changed my life completely. I started with the "peanut", two beers, and fifteen minutes later I lost control. 6:43 p.m.: I met a girl on the weekend, on Sunday, I did two "peanuts". I didn't sleep all night.

The next day, I did two quarters of coke, I went home, and in fifteen minutes my life...my life changed. I left, I "tilted" and I committed murder. 6:52 p.m.: Something "clicked", I got a knife from my house and I took it with me to kill her. Give me my time and I'll do it, my life is over. 6:56 p.m.: If I get the slightest chance, I'm going to kill myself. Do you think I'm going to spend the rest of my life in jail? 7:03 p.m.: I won’t plead not guilty, I'm the one who did it.

7:05: I'll tell you more than that, I sent her flowers on Friday, and I killed her on Sunday. 7:11 p.m.: I knew that I was going there to do that, and then to kill myself afterwards. 7:20 p.m.: My boy has been working in Percé since May, I took it hard when he left. He has an apartment close to the Pyramide. After that, my heart was broken, it's hard on the mood. 7:35 p.m.: I'm telling you guys all this stuff because I've been holding it in for four days. It feels good to say it. 7:38 p.m.

I didn't even have the time to sleep at my new roommate's place, I had just moved in that Friday, in the daytime, but I spent the night with the masseuse in NDL [Notre-Dame-des-Laurentides]. [ 19 ] Our analysis requires us to summarize certain aspects of the testimony given by the victim's roommate, Mr. Potvin. He had moved in with the victim in May of 2008. At trial, he stated that she had talked about the appellant a few times. In mid-June of 2008, the victim had told him that the appellant had threatened to kill her and then kill himself.

The jury received the proper instructions to limit the use of this statement to one aspect only, namely, as evidence of the victim's state of mind. [ 20 ] Mr. Potvin testified that, aside from that event, the victim was not afraid of the appellant, although she did find him to be very persistent. He added that the appellant had called the victim several times and that he had listened to a message left on the answering machine by the appellant: [ translation ] "You won't...you won't get far in life. You're a slut! You're a bitch!" [ 21 ] The night of the murder, Mr. Potvin answered the telephone.

It was the appellant, wanting to speak to the victim. He handed the phone to her.

He understood from the comments he overheard that the appellant was insisting that he go over that evening to give her some money, but that the victim was asking him to meet her the next day instead. 2 - The issue in dispute [ 22 ] The appellant raises a single question: Did the jury pronounce an unreasonable verdict in finding him guilty of first degree murder on the basis of the evidence as a whole? 3 - Analysis [ 23 ] In his factum, the appellant admits that the instructions that the trial judge provided to the jury were [ translation ] "rigorously accurate and consistent with the case law".

He states, however, that the evidence did not permit a properly informed jury to find, beyond a reasonable doubt, that the murder was a [ translation ] "planned and deliberate act". He argues that the jury should have acquitted him of first degree murder and convicted him of second degree murder. [ 24 ] The appellant's grounds of appeal cover two aspects. The first concerns the sufficiency of the evidence. He argues that it was insufficient to support a finding by the jury that the murder was [ translation ] "a deliberate act". The second aspect concerns the assessment of the evidence, which was circumstantial.

The appellant submits that he should benefit from a reasonable doubt if his guilt was not the only rational conclusion that could be drawn. [ 25 ] In his view, the existence of letters apologizing to his son and the victim's family, the fact that he brought a knife with him to the victim's house, and the ruse he used to get into the victim's apartment constitute evidence relevant to planning or to the required intent, but they do not establish that the crime was [ translation ] "a deliberate act". [ 26 ] The appellant emphasizes the testimony of his roommate, Mr.

Roberge, to support his submission that he committed the murder on a momentary impulse. Mr. Roberge confirmed that, a few hours before the crime was committed, the appellant was planning a normal work week. The appellant adds that Mr. Roberge's description of the apartment on August 3, 2008, reveals that he left the premises quickly. The appellant also relies on the out-of-court statements made to Constable Fournier to support his claim that he acted spontaneously, on impulse, without thinking about his actions.

He refers to the following words, which were recorded by the police officer: [ translation ] "I lost control", "I 'tilted'", and "something clicked". [ 27 ] According to the appellant, this evidence is more consistent with a spontaneous and impulsive decision than with a well thought-out, planned murder. [ 28 ] Section 686(1)( a )(

i) Cr. C . permits the Court to allow the appeal of a conviction if it is unreasonable or cannot be supported by the evidence. 686.

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence ; [Emphasis added.] [ 29 ] In R. v. Yebes , the Supreme Court explained the role of the Court of Appeal in matters involving unreasonable verdicts. It must be determined whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. The function of the Court of Appeal, under s. 613(1)( a )(i) (

i) of the Criminal Code , goes beyond merely finding that there is evidence to support a conviction The Court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the Court must re-examine and to some extent reweigh and consider the effect of the evidence. This process will be the same whether the case is based on circumstantial or direct evidence. [1] [Emphasis added.]

[ 30 ] In R. v. Biniaris , the Supreme Court defined the expression "acting judicially" thus: In that context, acting judicially means not only acting dispassionately, applying the law and adjudicating on the basis of the record and nothing else. It means, in addition, arriving at a conclusion that does not conflict with the bulk of judicial experience. [2] [ 31 ] This exercise, as the Supreme Court noted in R. v.

A.G . , requires a thorough re-examination of the evidence: ... the reviewing court must engage in a thorough re-examination of the evidence and bring to bear the weight of its judicial experience to decide whether, on all the evidence, the verdict was a reasonable one. Inevitably the verdict will be one that was open to the jury, in the sense that it was not an error of law for the trial judge to leave it to the jury for consideration. Moreover, it is not sufficient for the reviewing judge to simply take a different view of the evidence than the jury did.

The appeal court, if it is to overturn the verdict, must articulate the basis upon which it concludes that the verdict is inconsistent with the requirements of a judicial appreciation of the evidence. [3] [ 32 ] According to the teachings of the Supreme Court in R. v. Beaudry , [4] this re-examination of the evidence must take into account the privileged position of the jury with regard to the assessment of the facts. Consequently, if the verdict can reasonably be based on the evidence adduced, an appeal court should not intervene.

This exercise can be somewhat delicate when the verdict has been rendered by a jury, as explained by the author Tristan Desjardins: [ translation ] To be sure, an appellate review on grounds of the unreasonableness of a verdict is more difficult when the verdict has been pronounced by a jury. For a jury's verdict to be considered unreasonable within the meaning of subparagraph 686(1) ( a )(

i) of the Criminal Code , the appeal court must be convinced that it is not possible for twelve reasonable jurors, acting judicially, to arrive at this verdict, which is a difficult test to meet. [5] [ 33 ] The issues of "planning" and, in particular, "deliberation" are at the heart of this appeal. For an accused to be found guilty of first degree murder, the Crown must establish, beyond a reasonable doubt, each of the essential elements of the crime of first degree murder. In this respect, I recall the

definitions given by this Court in Gentry v. R . : [ translation ] The fundamental distinction between the "planning" and the "deliberation" that must exist for a person to be found guilty of first degree murder cannot be overstated. While planning exists where there is a settled plan, the nature and consequences of which have been considered and weighed, a deliberate act presumes that the murderer has taken the time to think about the effect of the act he proposes to commit: in Pilon v.

R ., Rivard J. wrote that [translation] "the deliberate act is one proceeding from an intention and an intelligence that knows the nature and quality of the criminal act. These two elements may be sequential, in which case it is murder in the first degree. One may exist without the other, however. There may be planned murder that is not deliberate or even unplanned murder that is a deliberate act. [6] [Citations omitted.] [Emphasis added.] [ 34 ] Authors Manning, Mewett and Sankoff have the following to say regarding these same notions: While one possible meaning of deliberate equates with "intentional", the

section has not been interpreted in this manner. Since intention is already a necessary requirement for murder, the courts have held that deliberate must connote some added element. For the most part, it tends to be explained as an action that is considered rather than impulsive, carefully thought out as opposed to being the product of hasty or rash judgment. A deliberate course of action is one where the accused has "' … [thought] about the consequences', i.e., when he or she contemplates the advantages and disadvantages of committing the murder".

This does not require any particular period of time, and in certain circumstances can involve nothing more than a matter of minutes. [7] [Emphasis added.] [ 35 ] In this case, regarding planning, it must be agreed that the facts as a whole indicate a certain planning on the appellant's part. Indeed, the appellant recognizes that the letters he wrote, the fact that he brought a knife with him, and the ruse he used to enter the victim's building could constitute evidence of a plan: [ translation ] These elements are surely relevant to the assessment of the planning of the murder.

Indeed, they may tend to demonstrate that a plan, albeit a very unsophisticated one, was made by the appellant. These facts, however, are neither relevant nor probative as to whether the appellant mulled over his plan to commit murder and took the time to weigh the advantages and disadvantages of this act.

In no way do they contradict the appellant's assertion that he spontaneously decided to commit the murder. [8] [ 36 ] I am of the view that the jury could conclude that the murder was a [ translation ] "planned and deliberate act." [ 37 ] Following the teachings of the Supreme Court, we must now carefully re-examine the evidence to verify whether it can provide the basis for the verdict.

In support of this approach, I note the following elements: the appellant left his home to go to the victim's home with the intention of killing her; he took a knife with him and concealed it in his trousers; he wrote two letters of apology, one to his son and the other to the victim's family, beforehand; he walked ten minutes to get to the victim's house; he entered her building through the building behind hers that was connected to it because he knew the premises well, having lived there before; he rang one apartment and got no answer; he rang a second doorbell, where a tenant let him in, thus getting around building security; he lied to the occupant who gave him access, telling him that he had made a mistake and that he was going behind; he falsely identified himself to the victim, using the name "Eric"; he broke down the victim's apartment door when she asked her roommate to call 9-1-1 for help; he threw out the victim's roommate, who was on the premises, at knife point; he made sure to lock the door behind him so that he would be alone

with the victim; he stabbed her seventeen times; two stab wounds were to the heart, and great force was used. [ 38 ] As noted above, the sufficiency of the evidence of planning cannot be doubted. Can the same be said regarding whether it was a "deliberate act"? The appellant's argument is that his decision to kill the victim was impulsive.

The Crown's argument is that the appellant mulled over the act between the telephone call he had placed to the victim at 8:52 p.m. and the murder committed shortly after 10:00 p.m. [ 39 ] I agree with the appellant's submission whereby the prior threat of murder made to the victim cannot be used to establish the existence of such a threat. Indeed, the trial judge gave the jury very clear instructions in this regard: Mr.

Potvin's testimony about the threats could be used only to show the victim's state of mind. [ 40 ] In support of his argument that his was a rash and impulsive decision, the appellant insists on certain pieces of evidence having to do with the normal unfolding of his work week: laundry, groceries, meal preparation, and so on. The trial judge clearly explained to the jury what its role was with regard to the burden of proof.

He explained that, if the jury was not convinced beyond a reasonable doubt that the appellant's actions were planned and deliberate, he should be acquitted of the charge of first degree murder: [ translation ] To arrive at your verdict, you must take the following approach in assessing the credibility of the accused: if you believe the accused's version, you must acquit him of the charge of first degree murder, but convict him of second degree murder.

If you do not believe the accused's version but you have a reasonable doubt that his act was planned and deliberate, you must also find him not guilty of first degree murder and convict him of second degree murder. If, after the accused's deposition, you have no doubt, you must ask yourself whether, on the basis of the evidence, you accept, you are persuaded beyond a reasonable doubt, that Carol Bujold's murder of Anne Morency was planned and deliberate. [9] [ 41 ] Clearly the jury did not believe the appellant when he affirmed that his act was rash and impulsive.

The Court must show deference to the conclusions of a jury with regard to the credibility of witnesses; [10] at the same time, however, it must ensure that the evidence was sufficient to permit the jury to conclude that the murder was "deliberate". [ 42 ] What evidence is likely to lead to the conclusion that the appellant acted "deliberately"? First, there is the text of the two letters he wrote. I note that they are dated and signed: [ translation ] Investigate, think whatever you want, life - it's shit. I apologize to my son, who I love, and to Anne's family.

The end of suffering, loving she didn't understand, I did [Reproduced in whole] To my son Sébastien, I love you more than anything but I don't understand my madness, forgive me, live your life, Dad who loves you xxx [Reproduced in whole] [ 43 ] Writing these letters indicating his intention to commit murder and expressing feelings of regret to people he loved support the idea that the appellant thought about his act before doing it. It must also be taken into account that he had the time to mull over his decision between the moment he made it and the moment he put it into execution.

Indeed, he had to walk the distance between his home and the victim's. The appellant then used a ruse to enter the victim's building by going through the building behind it. He rang two different apartment doorbells so someone would open the door for him. He told the occupant who let him in that he had made a mistake. He pretended to be a different person so that the victim would open her door. He made sure that he was alone in the apartment to commit the crime.

These elements were sufficient for the jury to find that the appellant was no longer acting impulsively but that he was taking the necessary steps to execute his plan, which required a certain amount of reflection. [ 44 ] The time between the moment he made the plan and its execution is not determinative in the consideration of the notions of "planning" and "deliberation". Here, all of the evidence listed above was sufficient to allow the jury to conclude that the appellant had conceived of a plan to kill the victim.

The jury could also infer that, when he executed his plan, the appellant committed precise, calculated actions that support a conclusion of a thought-out action. [ 45 ] The appellant also argues that, given the circumstantial nature of the evidence, he could not be convicted of first degree murder unless this was the only rational option. He refers to R. v. Griffin , [11] in which the Supreme Court states: ...

The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. ... [ 46 ] On the basis of this teaching, the appellant infers that he cannot be convicted of first degree murder because one part of the evidence supports the conclusion that the crime could have been committed rashly and on impulse.

He relies on the rule in Hodge's Case whereby [ translation ] "the facts must be consistent with the guilt of the accused and inconsistent with any rational solution other than the guilt of the accused." [12] [ 47 ] In raising this ground, the appellant revives a question that was put before the Supreme Court nearly half a century ago in The Queen v. Mitchell . [13] In that case, a jury found the accused not guilty of the first degree murder of his brother. The Supreme Court considered whether the jury should have received instruction regarding the rule in Hodge's Case . [14] It found in the negative.

It noted that, in most situations, certain pieces of evidence may indicate that the murder was a planned and deliberate act, while other pieces of evidence may support an opposite finding. The Supreme Court declared that it was up to the jury to assess the evidence as a whole and convict the accused if it was persuaded of his guilt beyond a reasonable doubt.

The task of a jury which is required to consider whether a murder is capital or not, is entirely different. Before it is ever called upon to determine the issue of planning and deliberation it must already have reached the conclusion, beyond a reasonable doubt, that the accused has committed murder. What it is now called upon to decide is not whether the accused committed the act, but whether the murder, of which he is guilty, was planned and deliberate on his part. The pattern of evidence which it must now consider is not a series of facts, which, in order to establish guilt, must lead to a single conclusion.

The jury is now concerned with the mental processes of a person who has committed a crime. In relation to that crime it has to consider his actions, his conduct, his statements, and his capacity and ability to plan and deliberate. It must consider the whole of the evidence in relation to the issue of planning and deliberation. In nearly every case some of this evidence may indicate planning and deliberation and some may indicate the contrary. The jury must weigh all of this evidence and arrive at a conclusion .

With respect to this issue, in my opinion, the charge to be given by the judge to the jury is that it must consider all of the evidence before it, aided by his instruction as to that evidence which is indicative of planning and deliberation and that, including circumstances and conditions affecting the capacity and ability to plan and deliberate, which indicates the contrary, and that, having weighed the evidence, it can only reach a verdict of capital murder if satisfied, beyond a reasonable doubt, that the murder committed by the accuses was planned and also was deliberate on his part. [15] [Emphasis added.] [ 48 ] The issue was once again brought before the Supreme Court in R. v.

Cooper . [16] In that case, the accused was convicted of having illegally conferred a benefit on a government employee with whom he had a business relationship. The accused admitted that he had paid for trips for a person and that this person was a member of the government. His defence consisted in stating that these benefits were not paid "with respect to those dealings", pursuant to paragraph 110(1)(

b) Cr. C ., but that a new friendship between these two persons had grown out of their business meetings on the basis of their mutual interest in horses. All of the Supreme Court judges, both dissenting and majority, noted that the approach enshrined in Hodge ’s Case had been set aside in Mitchell , supra . Laskin C.J. noted that the traditional guideline whereby the accused's guilt must be proved beyond a reasonable doubt is the most reliable way to explain the burden of proof in criminal cases. [ 49 ] In R. v. Yebes , [17] the same issue was put before the Supreme Court.

A jury found the accused guilty of the first degree murder of his two sons. In appeal, he argued that the verdict was unreasonable. He argued that the evidence, being entirely circumstantial, had to convince the jury that there could be no rational conclusion other than his guilt. The Supreme Court noted that the re-examination of the evidence by an appeal court is the same, whether the evidence is circumstantial or direct.

It must verify whether there was sufficient evidence to justify the jury's verdict: In my view, the majority of the Court of Appeal did not fail to apply the correct principles relating to the treatment of circumstantial evidence. The function of the Court of Appeal, under s. 613(1) ( a )(

i) of the Criminal Code , goes beyond merely finding that there is evidence to support a conviction. The Court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. The Court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered .

While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the Court must re-examine and to some extent reweigh and consider the effect of the evidence This process will be the same whether the case is based on circumstantial or direct evidence. The Court of Appeal, the majority clearly found that there was sufficient evidence to justify the verdict and both Macdonald and Craig JJ.A. rejected all rational inferences offering an alternative to the conclusion of guilt.

It is therefore clear that the law was correctly understood and applied. [18] [Emphasis added.] [ 50 ] Consequently, I am of the view that the appeal is should fail. The re-examination of the evidence leads to the conclusion that there was sufficient evidence to justify the jury's conviction of the appellant of first degree murder. FRANCE THIBAULT, J.A.