R. v. McRae

2000 BCCA 149 Citation: R. v. MacRae Date: 20000223 2000 BCCA 149 Docket: CA023613 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT Before: The Honourable Madam Justice Prowse February 23, 2000 The Honourable Madam Justice Ryan The Honourable Madam Justice Proudfoot Vancouver, B.C. BETWEEN: R E G I N A RESPONDENT AND: WILLIAM NORMAN MacRAE APPELLANT R.A. Ross appearing for the Appellant B. Johnstone appearing for the (Crown) Respondent [1] RYAN, J.A.: On July 17, 1997 the appellant was convicted by a jury in New Westminster of the second degree murder of his wife, Geraldine MacRae. [2] He appeals his conviction on the basis that he was not competently represented by counsel. He alleges that his lawyer misunderstood the law with respect to intent. The appellant says that this misunderstanding led counsel to mistakenly choose not to call certain evidence, to fail to emphasize a ground of defence, and to encourage the trial judge to deliver a faulty charge to the jury. [3] The evidence revealed that the victim had been strangled to death in her home around noon on May 16, 1996. There was never any question that the appellant had killed her. [4] The appellant had called 911 about half an hour or so after the killing and had led a police officer to his wife's body which was lying on the floor in her daughter's bedroom. When asked what had happened the appellant told the police officer that, "we had a fight". [5] The appellant and his wife had been separated for some time. The cause of the separation was the appellant's addiction to drugs. [6] After his arrest the appellant provided blood and urine samples which were analyzed to indicate approximately one gram of cocaine in his system. [7] The appellant testified that he had been addicted to cocaine for several years. He said that for several days before the murder he had been ingesting cocaine regularly, and that the day before the murder had resorted to taking it intravenously. [8] The appellant had been living in a basement suite with his son Chris not too far from the wife's home in Abbotsford. The rest of the appellant's five children lived with their mother. [9] By a previous arrangement the appellant had picked up his daughter, Melissa, around 8 a.m. of the day of the murder and had driven her to school while his wife took the other children to their school. [10] Melissa testified that her father was so badly under the influence of drugs that he was revving the engine too high in his truck so that she had to shift the gears for him. Melissa said that he was "paranoid, sweating and agitated". [11] The evidence disclosed that things had reached the point between the appellant and his wife that she did not want him in her home. In spite of this the appellant said that he returned to the home after dropping off the daughter because he thought that he could continue taking drugs there alone. [12] The appellant testified that by the time he arrived at his wife's home he had run out of places on his arm and had resorted to injecting cocaine into his leg. He said that while he was doing this his wife unexpectedly returned home. She was disturbed by his presence and told him to get out of the house immediately. He said that she had not seen that he was taking drugs. [13] The appellant said that his wife went to change her clothes to go out again. He said he thought he had time to inject cocaine while his wife was changing. As he injected cocaine into his leg his wife arrived at the bedroom door. [14] The appellant testified that his wife lost her temper with him. She had a pair of pants in her hand that she swung at him knocking off his glasses. He said that his wife lit into him physically and verbally. She threw a set of keys at him, she threatened to call the police and turn him in. He said that he struggled with her for some time. He could not remember strangling her. When the fight ended she was on the floor. He said he did not think then that he had killed her. [15] He went home to his basement suite, changed his clothes and eventually returned to his wife's home and called the police. [16] On cross-examination of the Crown toxicologist counsel for the defence obtained this evidence: Q And I think his lordship asked you, like alcohol? and you said there was a difference when you were being asked about acting out in violent or aggressive manner. My learned friend asked you if they'd be aware of where they were -- aware of what they were doing. You wouldn't expect they wouldn't know that they were holding onto somebody, but they might not necessarily appreciate the degree of force that they were holding onto that person with, do you agree with that, if they were under the influence of cocaine? A I don't think I can answer that question as specifically as that. Q Well, of somebody's reaching -- I'm reaching for my briefcase that's at my feet and I'm drunk and you've seen people and they're reaching down, in your mind you are thinking -- you are trying to focus on the intention to pick up that briefcase so you can hopefully go get in the taxi that's going to take you home. You may not necessary - you're focusing all your attention trying to get that briefcase. Now, somebody watches you they can see that you are clearly inebriated or you are impaired and you are having considerable difficulty in doing that. You don't necessarily in the intoxicated state you are in appreciate how silly you might look or how intoxicated you look in doing that, you're focusing on doing the job and you realize you pick up the briefcase. Somebody on cocaine, I am going to suggest to you, reaches down for the briefcase, picks it up and moves quite aggressively and without - they don't have any more of an appreciation for how aggressive they've acted than the drunk does in conversely -- do you understand what I'm getting at? A Yes, I think so, my lord. I think the description of the alcohol-intoxicated person being slow and stumbling versus the cocaine person being quick, grabbing as opposed to just reaching and picking it up is accurate. The appreciation aspect, in terms of cocaine, the person is -- is -- certainly has the capability to be aware of what they're doing and to analyze that yes, I'm grabbing this. They may not actually stop to consider that and they may not consider generally the -- the consequences of an action such that reaching quickly and grabbing might knock it over as opposed to reaching carefully. So the consideration of the consequences may not be there and the time taken to reason these things is not there. The ability to reason that is -- is still there and to appreciate it is there. It's a matter of whether or not they actually take the time to-- or consider the consequences of their actions in terms of the general state. Q I'm going to suggest to you, and I thought we had talked about this, you and I, earlier, about he might more likely move the -- push the briefcase, reach out for it and -- and end up pushing it forward, something like that, never intending to do that because of the overreaction? A Yeah, certainly. Q He applied more force than he intended to or than was necessary to achieve what he was seeking to achieve? A Yes. In general terms I don't disagree with that scenario. [17] At appropriate moments during the trial defence counsel advised the trial judge that he was considering calling the evidence of a psychologist who had some area of expertise in the area of substance abuse. In the end he chose not to call the witness. I will return to this matter later in these reasons. [18] In his closing to the jury defence counsel focused on the issue of intent. He painted a picture of a man who was high on drugs who was suddenly confronted and attacked by a furious wife. The overall thrust of his speech was to urge the jury to find in these circumstances the appellant had reacted to his wife quickly, violently, and without the intention to kill. [19] In his speech to the jury the Crown pointed to the manner of killing as proof of intent. He noted that the appellant had managed to wrap a belt or some other ligature around his wife's neck during the struggle. He referred to the forensic evidence that the belt would have had to be pulled tight for a minimum of 20 seconds to cause death. He urged the jury to conclude that by this action the appellant intended to cause the death of his wife. [20] Referring to the use of drugs on the day in question, the Crown suggested that as a long time user of drugs the appellant knew how to conduct his life on drugs. [21] At one point in his address Crown counsel said this: I say to you that he functioned and had complete control of his ability to function before the incident took place, and after, and it's just he's forgotten in the key part of what took place. [22] The trial judge charged the jury on provocation, cocaine ingestion, and the cumulative effect of provocation and cocaine ingestion touching on intent. [23] At the conclusion of the charge, the trial judge advised the jury not to begin deliberating until the sheriff advised them to do so, "because counsel might have some comment to make about the charge". [24] Defence counsel advised the trial judge that he was concerned that the Crown had set up a straw man with respect to the defence of intoxication. He said this: Well, the only position of the defence was that we weren't saying he was intoxicated, the point of affording himself or rendering himself incapable of forming the specific intent... And later, What Mr. MacRae said, and it's not. I mean what's said - what was said is not inconsistent with what Mr. MacRae said. It's only inconsistent if you're arguing intoxication, and I'm not - I was not arguing that he was so blitzed out that he didn't - he was totally incapable of - and he isn't saying that himself, he's never offered that... [25] The trial judge questioned defence counsel as to what he meant. The trial judge told defence counsel that he had understood that intoxication was part of the defence. This exchange then took place: Defence counsel: Well, I said he had become enraged himself by the combination of being under the influence --- he wasn't his normal self, he was under the influence. We heard evidence from Mr. Caughlin about the ups and downs and he would have been somewhere in between. The court: Yes, but isn't that intoxication? Isn't that the- Defence counsel: Not intoxication so as to render - as a defence in like say there had been no provocation. [26] Eventually the trial judge recharged the jury. I will repeat what counsel for the appellant says are the offending passages: Finally, more importantly, I said to you that the defence of the accused is intoxication. Mr. Coleman has pointed out to me that that's not his defence, that is intoxication from cocaine usage. That the cocaine usage, he's not claiming that he was intoxicated, he's claiming that the cocaine -- his position is that the cocaine usage can be considered by you, and must be considered by you, in determining whether or not the Crown has proved intent. So you may consider his use of cocaine in considering whether or not he had the ability to form the intent, and further, if he did, whether in fact he did form the intent because as I told you the Crown must prove that he had the necessary specific intent to commit murder before you can find him guilty of murder. And the question of the ingestion of cocaine is relevant to that. But the position of the defence has never been that he was intoxicated, or blitzed is the word that's been used, that is not his position. But the -- but that the cocaine usage should be considered on that question. And furthermore, and more importantly, the question of cocaine is relevant on the question of provocation. The main defence of the accused here is provocation, and I've gone over that fairly exhaustively with you, and -- and the question of cocaine usage is something that, you know, relevant to provocation because it goes to explain the conduct and the reaction of the accused, and that's the position of the defence. And that is that the cocaine usage was such that the accused reacted in that fashion. And so the main defence of the accused here is the defence of provocation, that is the provocative acts of his wife caused him to react in that way that resulted in her death. Her insults, her rejection, her striking at him, throwing of the pants and the other objects, and the falling off of the glasses and the altercation, all of those factors put together, and you must consider that as I said to you before in the total context and the surrounding circumstances of their relationship and of this particular incident. All right. That you again for your patience. You may retire. [27] Counsel for the appellant on this appeal submits that the discussion between the trial judge and defence counsel demonstrates that defence counsel understood intoxication to be a defence only if it rendered a person incapable of forming the intent. Counsel submitted in this court that this misunderstanding led counsel at trial to insist on a further charge to the jury which wrongly took away the defence of intoxication completely. [28] I am not persuaded that this is what happened in this case. A reading of the transcript demonstrates that defence counsel was concerned that the jury, because of the remarks of Crown counsel, would be left with the impression that the defence was that the appellant was so intoxicated that he was incapable of forming the intent to kill. This would be worrisome to the defence because the evidence of Mr. Caughlin, the toxicologist, tended only to support the theory that the amount of cocaine in the appellant's system might cause him to overreact in such as way that he would not consider the consequences of his actions. In other words the appellant would be capable of forming the intent, but because of the effect of the drugs, acted without intent to kill. [29] I am not persuaded that the trial judge did anymore than address the problem defence counsel thought had been introduced by the Crown. His remarks ensured that the jury did not understand the defence to be that the appellant was so intoxicated he was incapable of forming an intent. [30] In examining the re-charge we must keep in mind the remarks of Cory J. in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397, who, in dealing with an error in a re-charge on reasonable doubt said this: Fifthly, the recharge was not the result of a question from the jury. When a jury submits a question, it gives a clear indication of the problem the jury is having with a case. Those questions merit a full, careful and correct response. As well, the answer should remind the jury of its instructions given in the course of the main charge: see R. v. Desveaux (1986), 26 C.C.C. (3d) 88 at p. 93, 51 C.R. (3d) 173, 13 O.A.C. 1 (Ont. C.A.), where it was said: Questions from a jury manifest their concern and indicate their desire for direction on a particular issue. The trial judge should read the question to counsel and obtain their submissions as to the response that should be made. It is then incumbent on the trial judge to answer the question in a complete and reasonably detailed manner. It is unfair to the parties and the jury to attempt a short form answer to a problem that is obviously presenting difficulties. The definitions requested had been adequately set out early in the charge. However, memories are short and much had intervened in the way of directions and recharges before the question was submitted. The original instructions should have been repeated in the response. [31] In his main charge the trial judge fully and properly charged the jury on the intent required for murder and the onus on the Crown to prove that intent. The jury would have understood that either the effect of cocaine or the effects of the actions of the appellant's wife combined with his drug use might cause them to have a reasonable doubt that the appellant intended to kill his wife when he strangled her. Even if the re-charge could be said to contain error, I am not persuaded that the jury would not have fully understood the issues before them. [32] I would not give effect to that ground of appeal. [33] Finally, the appellant submitted that his lawyer's misunderstanding of the law provided the reason he failed to call the evidence of the psychologist on the issue of drug consumption. [34] In an affidavit filed in this court, defence counsel said that he did not call the psychologist because he believed that the psychologist's report, once revealed to the Crown, might damage the appellant's case. We have had an opportunity to read the psychologist's report to which defence counsel refers. I agree that the report's analysis of the appellant's personality and reaction to drugs would do little to further his case, if not hinder it. Defence counsel said that he was of the view that he had obtained the evidence he needed from the Crown's toxicologist. I have repeated that evidence earlier in these reasons. There is no doubt that this evidence assisted the defence. Part way through their deliberations the jury requested and was given a transcript of the toxicologist's evidence. They obviously understood that it was an important part of the case. [35] I see nothing in this ground of appeal. Defence counsel made the difficult decisions which face counsel every day in these courts. It is not for this court to say that he might have done things differently. [36] Counsel for the appellant submitted that defence counsel at trial ought to have been more forceful in his address on the issue of the effect of cocaine consumption on the appellant's intent. Rather than argue the case from different perspectives, counsel took what many consider to be the wiser course. He chose to weave a story for the jury, to provide them with one plausible alternative to the theory of the Crown. Counsel emphasized the suddenness and ferocity of the physical and verbal attack on the appellant by his wife when he was in a jumpy state as a result of drug taking. Counsel left the alternatives to the judge in his jury charge. The matter of approach was a decision for trial counsel and trial counsel alone. [37] In R. v. White and Sennett (1997), 114 C.C.C.(3d) 225, Laskin and Charron JJA made this point: An appellate court's review of trial counsel's performance should be deferential. In addition to the policy considerations discussed by Doherty J.A. in Joanisse, deference is called for because of the broad spectrum of professional judgment that might be considered reasonable. In most cases, even among the most skilled counsel, no two lawyers will defend an accused in the same way. Different defence counsel will use different trial strategies and tactics, different approaches to the examination and cross-examination of witnesses, different styles in opening and closing argument, all of them reasonable. The art of advocacy yields few, if any, absolute rules. It is a highly individualized art. What proves effective for one counsel may be ineffective for another. Most cases, therefore, offer defence counsel a wide scope for the exercise of reasonable skill and judgment. Appellate judges, many of them advocates in their own practices, should not be too quick to conclude that a trial lawyer's performance was deficient because they would have conducted the defence differently. I agree with these comments. [38] I see no basis at all for a finding that the appellant was incompetently represented, and as a result, I would dismiss the appeal. [39] PROWSE, J.A. I agree. [40] PROUDFOOT, J.A. I agree. [41] PROWSE, J.A. The appeal is dismissed. "The Honourable Madam Justice Ryan"