Olbey v. R.

That the learned trial judge’s failure to direct the jury that, if there was a wrongful act or insult sufficient to deprive an ordinary person of the power of self-control, they should consider the influence of drugs on the accused in deciding whether in fact he was or might have been responding to provocation was non-direction amounting to misdirection and,

It could not be said in the circumstances that no substantial wrong or miscarriage of justice resulted therefrom, and on broader terms by leave granted February 20, 1978.

The broader grounds allege that the trial judge erred in that he did not instruct the jury on the law relating to the treatment of accomplices’ evidence; that there was error in responding to the jury’s request to have the evidence of a witness read back after they had commenced their deliberations; and that the Court of Appeal was in error in dismissing the appellant’s motion to adduce fresh evidence pursuant to s. 610 of the Criminal Code on the hearing of the appeal.

The facts are well set out in the judgment of Martin J.A. for the majority of the Court of Appeal. On November 1, 1972, several people gathered in the apartment in Windsor of one Thornton. Thornton was said to be a dealer in drugs and his apartment was frequently used as a drug house or resort of drug users. A variety of illicit drugs was used on that occasion. All or most of those present used marijuana, barbiturates, amphetamines and heroin in varying amounts and combinations. A principal Crown witness named Catherine Dwyer arrived at about 7:00 p.m. with a young sister aged seventeen. Thornton, Philip Cloutier, and John Baylis were there upon her arrival. The appellant arrived about 8:00 p.m. He was known to Dwyer who had met him on previous visits to Thornton’s apartment. Shortly after arrival, the appellant produced a revolver which he began to clean. About one-half hour later, Larry Lamont, described by Dwyer as the appellant’s partner, arrived. At about 11:00 p.m., Dwyer and her sister left the apartment and at this time, Patterson, the deceased, arrived. Dwyer said she heard the appellant say “He didn’t like damn

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Yankees”. He was apparently referring to the deceased who lived in Detroit.

Miss Dwyer returned to Thornton’s apartment about 1:00 a.m. on November 2nd. Her sister wanted to use the bedroom of the apartment to do her school homework. When Dwyer and her sister entered the bedroom they found the appellant who, according to Dwyer, was “stoned”, that is, severely intoxicated from barbiturates. He wanted to use a phone which was in the room but was unable to dial the number. Dwyer dialed it for him but he was apparently unable to complete a conversation, dozing off to sleep and generally appearing to be in a near comatose condition. Dwyer then went to the den in the apartment with the appellant, leaving her sister in the bedroom. The appellant left the den and entered the dining room where the deceased and one Margaret Rau were sitting at the table. The appellant called the deceased a “two-bit dope peddlar” and spoke words to the effect that “I am a better drug dealer than you are”. Dwyer said that the appellant seemed aggressive and that the deceased appeared to be trying to “keep Olbey, the appellant, cool” and to avoid “harassing him in any way”. The appellant left shortly and went into the den. Dwyer then went into the kitchen to wash dirty dishes. She returned to the den shortly and spoke with the appellant. She said he was still very stoned.

About 2:00 a.m. Thornton and Margaret Rau left to get some food. On their return the food was eaten in the dining room. Then Dwyer commenced to clean up. She was in the kitchen doing dishes when she heard the deceased call the appellant a “two-bit punk” or “a two-bit nigger punk”. She heard a chair falling and she stepped back so she could see into the dining room. She said that she saw the appellant holding a gun pointing it at the deceased. The deceased and the appellant were about eight feet apart and she saw the appellant

[Page 1017] fire a shot. It seemed to spin the deceased around so he was facing the appellant. The deceased clutched his stomach and started walking or staggering towards the appellant. The appellant took a couple of steps back and fired a second time. The deceased turned completely around and fell to the floor upon his back. The appellant then fired a third shot at the deceased while he lay on the floor. Dwyer estimated that all three shots were fired within a period of five to six seconds. She said that the shooting took place about 3:00 a.m. and she also swore that there was an interval of four or five minutes between the time the deceased made the insulting remark or remarks to the appellant and the time she observed the first shot being fired. In cross-examination, she said that the outward signs of drug intoxication she had observed on the appellant at about 1:00 a.m. had diminished by 3:00 a.m. In answer to a question from the bench regarding the appellant’s condition between 2:00 and 3:00 a.m., she said “from what I could see he was very much in control of what he was doing”. She also said the deceased called the appellant a “two-bit nigger punk” after being “harassed” by the appellant. She said the appellant appeared to be the aggressor. She said she was normal by 2:00 a.m. but admitted that in the evening she had smoked five or six marijuana cigarettes sharing them with others present and that she had taken “three valiums” over an eight-hour period.

There can be no doubt that the deceased died almost immediately from bullet wounds. After the shooting, again according to Dwyer, the appellant said that “nobody is calling anybody” in response to a suggestion that an ambulance be called and, that he tore the telephone cord from the wall. He said if he went to jail he had friends who would “take care of these people. Dwyer considered this a threat uttered to enforce silence.

After some discussion, the body was put into the deceased’s car and it was taken to an open field in the nearby countryside. A fruitless attempt was made to burn the car with the appellant’s body in it. Lamont then attempted to deface the body by beating it with a tire iron. The body was then left

[Page 1018] in the car where it was eventually found. Baylis, who was called as a Crown witness, followed in another vehicle, the car which carried the body and he brought Lamont and the appellant back to Windsor. They remained at Baylis’s apartment the remainder of the night before going their separate ways the following day. Dwyer remained in Thornton’s apartment until about noon the next day when she was arrested by the police. She explained her waiting there by saying that she had been told to clean up and remove blood stains, which she did in fear of retaliation by the appellant.

The appellant gave evidence on his own behalf. He said that he had met the deceased once before in another dope house. He had seen the deceased carrying a gun on that occasion. During the month of October, before the killing, friends had told him that the deceased had accepted a contract to kill him. He denied that he was a drug dealer. He said that he had received threats over the telephone. He said that he had been shot in the spring of 1972, before he met the deceased, and that the house in which he rented accommodation had burned down about two weeks before the killing. He considered all these circumstances suspicious and he had purchased a gun for his protection. He had taken barbiturates earlier in the day on December 1st before going to the Thornton apartment. He had developed, he said, a tolerance to barbiturates and required them to function normally. He was “high” when he went to Thornton’s apartment. He said that he saw the deceased sitting at the dining room table and that the deceased said “You didn’t burn in the house but you are about to burn in hell”. The deceased added that “if he was smart” he would “get his little punk ass out of town”. The appellant replied “No two-bit Yankee dope dealer is going to run me out of town”. He described the killing by saying that someone had called him into the dining room. He got into an argument with the deceased. The deceased came towards him. He was afraid of the deceased because of his size and he punched at him. The deceased grabbed him. During the scuffle, the deceased tried to put a bear hug on him. He pushed the deceased back towards the bathroom. The deceased then said “I am going to kill you punk” and started reaching inside his sweater. The appellant then shot him believing

[Page 1019] that the deceased was reaching for a weapon. The deceased, with his hand still in the sweater, continued to come towards him. The appellant shot again. He said he didn’t know how many times he pulled the trigger. He said he was “really stoned”. He then said he frisked the deceased for a weapon and discovered he didn’t have one.

It will be seen at once that the appellant’s version is fundamentally different from that of Dwyer. It will also be seen that his account of the shooting described in great detail, despite his assertion that he was “really stoned”, a killing in self-defence not one in response to sudden provocation.

At trial, the appellant relied upon self-defence. The defence of provocation was not argued and counsel for the appellant did not ask the trial judge to direct the jury upon it. The defence relied upon the description of events given by the appellant to support the self-defence theory. The trial judge, in charging the jury, considered that there was evidence which would support the defence of provocation under s. 215 of the Criminal Code. He therefore put that defence to the jury notwithstanding that the defence had not been put upon that footing.

The first ground of appeal arises from the refusal of the Court of Appeal to receive new evidence upon the hearing of the appeal. The appellant’s counsel moved to introduce new evidence at the outset of the appeal. The notice of motion sought to have the court hear the evidence of Gerald Tuck, who had been counsel for the appellant at trial; Dr. Eugene Leblanc, an official of the Department of Health of the Province of Ontario, concerning the effect of drug use on human behaviour; and Margaret Rau, a woman who had been present in the Thornton apartment when the killing occurred. The application was made under s. 610(1) which is reproduced hereunder:

610. (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

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(a) order the production of any writing, exhibit, or other thing connected with the proceedings;

(b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial,

(i) to attend and be examined before the court of appeal, or

(ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose;

(c) admit, as evidence, an examination that is taken under subparagraph (b)(ii);

(d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness;

(e) order that any question arising on the appeal that

(i) involves prolonged examination of writings or accounts, or scientific or local investigation, and

(ii) cannot in the opinion of the court of appeal conveniently be inquired into before the court of appeal,

be referred for inquiry and report, in the manner provided by rules of court, to a special commissioner appointed by the court of appeal; and

(f) act upon the report of a commissioner who is appointed under paragraph (e) in so far as the court of appeal thinks fit to do so.

The Court of Appeal dealt with this motion in a summary way. The motion was dismissed and the notice endorsed with the following words:

The majority of the court are of the view that no proper case had been made for the exercise of their discretion to review fresh evidence; Madam Justice Wilson is of the contrary view and would have heard the evidence.

The affidavits filed by the appellant’s counsel at trial showed he had applied for an adjournment of the trial which commenced on February 11, 1974, to enable him to consult with and engage a psychiatrist to give evidence for the defence on the issue of the ability of the appellant to form an intent to kill or to cause bodily harm. He was refused the adjournment and he had to rely at trial on the evidence of Dwyer, adverse as she was, to form any basis for a defence based on the appelants mental capacity. To repair this deficiency,

[Page 1021] he sought to have the evidence of Dr. Leblanc introduced before the Court of Appeal. An examination of Dr. Leblanc’s affidavit indicates that his evidence would go largely in contradiction of the evidence of Dwyer as to the mental capacity of the appellant on the issue of provocation. As such, it would be principally concerned with discrediting Dwyer’s evidence. The affidavit of Margaret Rau also contradicts Dwyer’s evidence in several particulars. In it she deposes that the deceased was looking for a fight and was the aggressive party but that she did not see the actual shooting. Her name was on the back of the indictment as a witness but she was not called by the Crown. She had been called at the preliminary hearing by the defence. Counsel swore in his affidavit that he had endeavoured to locate her during the trial but was unable to find her. He did not, however, ask for the assistance of the court in finding her nor did he indicate to the court that he wished to call her. Counsel at trial, on February 11, 1974, had been counsel for the appellant at his preliminary hearing on December 10, 1973, and had presumably received his instructions well before that date and had had sufficient time to prepare for the defence. I am not of the opinion that the Court of Appeal made any error in the exercise of its discretion under s. 610 of the Criminal Code and I would not give effect to this ground of appeal.

The evidence sought to be introduced in this motion does not meet the requirements established by this court in such authorities as McMartin v. The Queen[4].

The appellant argues that the defence of provocation was improperly dealt with by the trial judge in his direction to the jury and by the majority of the Court of Appeal. This ground of appeal was expressed in the appellant’s factum in these words:

Did the majority for the Court of Appeal for the Province of Ontario err in

(1) finding that the failure of the learned trial judge to instruct the jury that they should take into consideration the evidence of the appellant’s intoxication in assessing whether he acted on the sudden

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and as a result of provocation was not a miscarriage of justice?

It will be recalled that the appellant did not raise the defence of provocation at trial but relied on self-defence. It may be observed here that at no time did the appellant say that he had been provoked into violent action by the words and conduct of the deceased. In fact, his description of events goes far to negate any suggestion of provocation. His evidence reveals an attack, described clearly and with some detail, to which he reacted, not on the sudden, but by defending himself. When, according to his evidence, he saw the deceased put his hand inside his sweater, he considered that the deceased was reaching for a gun and, in fear of his life, he shot and killed him. This describes a calculated and rational series of defensive acts, not a sudden reaction in the heat of passion. Nevertheless, the trial judge and the Court of Appeal considered there was some evidence of provocation which required the putting of that charge to the jury. I have read the evidence with care and find it difficult to reach a conclusion that there was any evidence of a wrongful act or insult of such nature as to be sufficient to deprive an ordinary person of the power of self-control. Further, I was unable to find any evidence that the accused acted on the sudden before his passion cooled. However, since the direction was put, it should have been put correctly. Martin J.A., for the majority of the Court of Appeal, after making some minor criticisms of the charge on this point, said:

The failure of the trial judge, however, to instruct the jury that they were entitled to consider the appellant’s condition with respect to intoxication on the issue whether he was deprived of his power of self-control, in the event they considered that there was a wrongful act or insult sufficient to deprive an ordinary person of the power of self-control, constituted non-direction and it, therefore, becomes necessary to examine this error in the context of the trial to determine whether it resulted in a substantial wrong or miscarriage of justice.

Wilson J.A., while agreeing that there was error in the charge on this point, disagreed with the majority conclusion that no substantial wrong or miscarriage of justice resulted. The majority’s

[Page 1023] finding on this point was the basis of the appellant’s attack.

It is clear that where the defence of provocation is put to the jury in circumstances where there is evidence of intoxication by drugs or alcohol of the defendant, the jury must be directed that they are entitled to consider and should consider what effect such intoxication, if they find it to exist, might have upon the accused. They should be told to consider whether his power of self-control had been affected to the point where he might be deprived, in whole or in part, of his normal ability to restrain himself in circumstances which could amount to provocation. Failure to charge upon this issue is misdirection and has been so regarded in such cases as R. v. Harms[5] and Taylor v. The King[6]. The point is well summarized by Martin J.A. in R. v. Haight[7], at p. 173:

The Supreme Court of Canada in Taylor v. The King (1947), 89 C.C.C. 209, [1948] 1 D.L.R. 545, [1947] S.C.R. 462, held that on a charge of murder where the defence of provocation is advanced, intoxication may be considered by the jury in the second branch of the inquiry, that is, whether the accused was actually deprived of the power of self-control by the provocation which he had received. I refer particularly to the judgment of Kellock, J. (with whom Taschereau, J., concurred), at pp. 223-5, and the judgment of Estey, J., at p. 229. That case has been frequently applied by provincial appellate Courts. I refer only to some of those cases: R. v. Ouellette (1950), 98 C.C.C. 153, 10 C.R. 397, [1950] 2 W.W.R. 875; R. v. Swanson (1950), 96 C.C.C. 227, 10 C.R. 81, [1950] 1 W.W.R. 1001; and Abel v. The Queen (1955), 115 C.C.C. 119, 23 C.R. 163, [1956] Que. Q.B. 89, and more recently by this Court in R. v. Tennant and Nacaratto (1975), 23 C.C.C. (2d) 80, 7 0.R. (2d) 687, 31 C.R.N.S. 1.

Defence counsel requested the trial Judge to charge the jury in accordance with the principles enunciated in Taylor v. The King, supra. The application by defence counsel was vigorously opposed by Crown counsel (who I hasten to add was not Mr. Watt), and as a result the trial Judge did not instruct the jury that in deciding whether the accused was actually deprived of his power of self-control, they should take into consideration the

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amount of liquor that he had consumed. We are all of the view that he erred in failing to direct the jury in accordance with the request that was made to him.

The trial judge was then in error in this respect and it must be considered whether the Court of Appeal was correct in applying the provisions of s. 613(1)(b)(iii) of the Criminal Code to dismiss the appeal on the basis that no substantial wrong or miscarriage of justice has occurred.

I am in agreement with the majority of the Court of Appeal in their application of that section. In this case, there was little if any evidence to support the proposition that provocation had been given. There was no evidence from the appellant himself that he had been provoked and no assertion from him that he had responded on the sudden before his passion cooled. In fact, the evidence on this point revealed a lapse of time of four or five minutes from the time of the alleged insult to the firing of the first shot. He said he acted in self-defence. The evidence is all against provocation. Furthermore, as pointed out by Martin J.A., any evidence which could have supported the defence of provocation was bound up so closely with his evidence of the assault against him that when it was rejected by the jury, as it clearly was, there was no remaining basis for the defence of provocation. As I have indicated, I doubt that the appellant was entitled to have the issue of provocation go to the jury in this case. However, the direction in respect of this defence given by the trial judge did not have an adverse effect upon the appellant’s position. The omission by the trial judge to deal with the evidence of intoxication is, in my opinion, not fatal to the conviction. In applying the test in Colpitis v. The Queen[8], I am of the opinion that the result would not have been affected by reference to the evidence of the appellant’s intoxication. This ground of appeal must fail.

I come now to the argument that both Baylis and Dwyer, as accessories after the fact, were accomplices and that the jury should have been instructed on the danger of convicting on their evidence in the absence of corroboration. As men-

[Page 1025] tioned by Martin J.A., there was an abundance of evidence that Baylis was an accomplice as an accessory after the fact in that he assisted the appellant in the attempted disposal and concealment of the body and provided food, clothing and shelter for the appellant after the event. Counsel for the Crown conceded in the Court of Appeal that this issue, at least with respect to Baylis, should have been left to the jury. The evidence with respect to Dwyer was by no means as clear and I doubt if there was any which could fairly be said to support the proposition that she was an accomplice as an accessory after the fact. She was in no way connected with the killing and the only evidence which could support a conclusion that she was an accessory after the fact related to her cleaning up the blood stains after the body had been removed from the premises. However, for the purpose of resolving this point, I am prepared to assume that there was some evidence in her case which could have gone to the jury on this issue. Nevertheless, even on that assumption, I agree with the majority of the Court of Appeal that no substantial wrong or miscarriage of justice resulted because of the omission of any such direction. As far as Baylis is concerned, his evidence did not go to the actual killing. If he had never been called, or if the jury had disbelieved every word he said, it would not affect the weight of the Crown evidence as to the actual killing. As to events which occurred after the killing, of which he did give evidence, his evidence dealt only with the disposal and concealment of the body and with other peripheral matters which were not denied by the defence and which added little or nothing to the Crown’s case. The omission of the charge in respect of Baylis would not have affected the outcome of the case. As to the witness Dwyer, her evidence was of vital concern to the Crown’s case but her involvement as an accessory was tenuous and not connected with her evidence of the killing.

I agree with Martin J.A. when he said in this connection:

I am completely satisfied that any defect in the judge’s charge because of his failure to leave with the jury the issue whether Miss Dwyer was an accomplice was not a substantial wrong to the accused and did not result in a miscarriage of justice.

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This ground of appeal must also fail.

I now turn to the final ground of appeal. The appellant alleges that the trial judge erred in dealing with the request of the jury to have some evidence read back after they had commenced deliberation and, that the Court of Appeal erred in considering that the trial judge’s handling of this matter did not result in any substantial wrong or miscarriage of justice. The problem arose in this way. The jury retired to consider its verdict at 1:22 p.m. After hearing counsel regarding certain objections to the charge, the jury was called back at 1:58 p.m. and the trial judge gave them further instructions to which no objection is taken here. The jury then retired for a second time at 2:00 p.m. At 3:02 p.m., the jury returned to the courtroom and upon that occasion the following occurred:

HIS LORDSHIP: Gentlemen?

THE FOREMAN: Yes, my lord, we have a question to rehear the testimony by the accused as well as Catherine Dwyer.

HIS LORDSHIP: What? All the evidence?

THE FOREMAN: The salient points.

HIS LORDSHIP: We do not want to retry it. How much of her evidence do you want?

THE FOREMAN: The portion relating to Olbey’s actions in the latter part of the evening, sir.

HIS LORDSHIP: You say the latter part of the evening. Are you speaking of after 2:00 o’clock, or so?

THE FOREMAN: No, sir. I think from approximately 12:30 on.

HIS LORDSHIP: 12:30. Do you want all of her evidence from the time she returned when she said about 1:00 a.m.?

THE FOREMAN: Yes, sir.

HIS LORDSHIP: You want all of her evidence read, examination and cross-examination, all of her evidence read?

THE FOREMAN: I think, sir, that in view of the fact that there seems to be a bit of doubt—

HIS LORDSHIP: No. Just answer my question. Do you want all of it read?

THE FOREMAN: Yes.

His LORDSHIP: I may say that not often is the evidence read back to you; I am going to accede since one of the counsel said that the evidence could be read back.

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Normally, we do not have the evidence read back and have the case retried, but we will.

Mr. Reporter, would you turn up the evidence of Catherine Dwyer to the point where she said that she got to Thornton’s house about 1:00 a.m.

The court reporter commenced reading back evidence and stopped reading at 3:27 p.m. It is not clear from the transcript itself why he stopped, but up to that point he had read back evidence filling ten pages of the transcript which was reproduced before us.

The jury returned at 5:04 and required further direction on the question of intoxication as it relates to homocide. In answer to questions put to the trial judge, the foreman said the jury was not concerned with provocation, merely intoxication. He asked the judge, “Just as you read it from the law book”. The judge then charged the jury with respect to drunkenness and the jury retired at 5:07. Neither counsel objected to this charge. The jury returned at 5:18 and gave their verdict convicting the appellant of murder.

Counsel for the appellant contended that the trial judge was in error in allowing only part of the evidence of Dwyer to be read back. He contended that when part of a witness’s evidence is reread all the cross-examination or qualifying evidence should also be read so that the evidence will be put in its proper relation to the whole of the case and so that the evidence will not be isolated and given more emphasis and significance than it should have.

I am in agreement with this proposition, as was Martin J.A. in the Court of Appeal. He said:

I accept, of course, the proposition that where the jury requests that the evidence of a witness be read back, it is incumbent on the trial judge not to allow the jury to hear a part only of the evidence of the witness without also hearing those portions of the evidence of the witness, whether given in-chief or in cross-examination, which weaken or qualify the part read, even though the jury indicates that it does not wish to hear any more of the witness’ evidence. Otherwise, the jury is not hearing

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the evidence of the witness, but only an incomplete, or even an inaccurate account of his or her testimony.

This view is well supported in the authorities: see R. v. Wydryk and Wilkie[9], R. v. Bell Christiansen, Coolen and MacDonald[10], R. v. Stewart and Johnson[11], R. v. Smith, Sauvé and George[12].

It is necessary to examine what occurred in this case. The transcript does not make clear why the reading back of the evidence of Dwyer ceased. By agreement, an affidavit dated February 14, 1977, of one Terrance Corcoran, who was the Supreme Court reporter involved in the trial, was produced. Counsel for the appellant was allowed to cross-examine on the affidavit and counsel for the Crown re-examined. The affidavit is reproduced hereunder:

AFFIDAVIT

I Terrance Corcoran, a duly qualified Supreme Court Reporter, make oath and say as follows:

1. That I was the Official Court Reporter during the trial of the matter before the Honourable Mr. Justice Callon in Windsor, Ontario in February of 1974;

2. That on Monday, the 14th day of February, 1977, I was asked by the Crown Attorney to refer to my original notes in the matter;

That I was asked in particular to refer to any notes I might have as to what occurred when the jury returned to the Courtroom and requested that certain evidence be read back to them;

That I complied with this request and found that my notes indicated that after I had re-read to the jury the portion of the examination-in-chief of the Crown witness C. Dwyer as it appears in Vol. 6 at pages 1192 to 1202 of the Transcript, the jury foreman indicated that the jury did not wish to hear any more, and that it was not necessary to have the remainder of the witness C. Dwyer’s evidence, nor the evidence of the Appellant read back to them;

That after this indication was given by the jury foreman, no further evidence was re-read to them;

And that this indication by the jury was inadvertently omitted from the original transcript. The remark did not in fact get transcribed as I was in the witness box reading the evidence at the time the remarks were made.