500-08-000299-083 PAGE: 2
Unofficial English TranslationLSJPA — 1037 / 2010 QCCA 1627
COURT OF APPEAL
CANADA
PROVINCE OF QUEBEC
REGISTRY OF / MONTREAL
No.: / 500-08-000299-083
(525-03-039859-079)
DATE: / September 14, 2010
CORAM: / THE HONOURABLE / JACQUES CHAMBERLAND J.A.
LOUIS ROCHETTE J.A.
FRANÇOIS DOYON J.A.
X
APPELLANT – Accused
v.
HER MAJESTY THE QUEEN
RESPONDENT – Prosecutrix
JUDGMENT
[1] THE COURT: - On the appeal of a verdict rendered March 20, 2008, by a jury presided by the Honourable Madam Justice Sophie Bourque (Superior Court, District of Montreal) convicting the appellant on a charge of second-degree murder;
[2] After having examined the file, heard the parties, and on the whole deliberated;
[3] For the reasons of Doyon J.A., with which Chamberland and Rochette JJ.A. concur:
[4] DISMISSES the appeal.
JACQUES CHAMBERLAND J.A.LOUIS ROCHETTE J.A.
FRANÇOIS DOYON J.A.
Mtre Mylène Lareau
Mtre Rudi J. Daelman
Brouillard, Bibeau, Gariépy & Associés
For the appellant
Mtre Michel Pennou
Mtre Éric Poudrier
For the Director of Criminal and Penal Prosecutions
For the respondent
Date of hearing: / April 6, 2010
500-08-000299-083 PAGE: 40
REASONS OF DOYON J.A.[5] The appellant was convicted of the second-degree murder of Raymond Ellis, which occurred in a Montreal bar. He appeals the verdict.
[6] For the following reasons, I find that the appellant’s grounds of appeal must fail.
BACKGROUND
[7] On October 23, 2005, members of the Crips, a gang also known as the Blues, were at Aria bar in Montreal commemorating the killing of one of their own, Passius Rydewood, who had died the preceding September 24th. Many of those present wore a sweater bearing Rydewood's likeness.
[8] A rumour began to circulate that Raymond Ellis, who was present in the bar, was responsible for Rydewood's death. It was later revealed, however, that Ellis, who was not affiliated with any criminal organization, had nothing to do with Rydewood's death. In other words, he was the victim of a tragic mistake.
[9] Ellis was there with two friends. They spent the evening together and, around 3:00 a.m., went to Aria bar.
[10] According to his two friends, some men walked by them, staring them down. A few minutes later, five individuals, their faces hidden by blue bandannas, circled around them. Obviously, they had been mistaken for rival gang members.
[11] People started chanting "C's Up!", a Crips rallying cry which I will revisit later. Ellis and his friends hid behind the bar; they then attempted to leave in order to escape their aggressors. Ellis didn't make it.
[12] At least twenty people attacked him and he was repeatedly stabbed, despite the security guards’ attempts to intervene. The latter even saw people jumping on him with both feet.
[13] The security guards were finally able to carry Ellis to a small room. Rescue services were called. He was brought to hospital, where he died.
[14] The cause of death was massive internal and external bleeding resulting from eleven points of injury, all in the back, caused by the use of one or more bladed weapons.
[15] Many sweaters bearing Rydewood's likeness were found in the bar as well as a number of knives, one of which was stained with the victim's blood.
[16] The officers sent to the scene questioned everybody wearing a sweater bearing Rydewood's likeness and those whose clothing was stained with blood. In total, twenty-four individuals were arrested, six of whom were subsequently charged as a result of the police investigation. The appellant, a minor at the time of the offence, was tried separately from the others.
[17] None of the witnesses heard at trial saw an assailant holding a knife. Two security guards, Xavier Lamoureux and David Bergeron, however, identified the appellant.
[18] Among the other witnesses, there was [Worker 1],[1] who worked at the Youth Centre of A ("[Youth Centre of A]"), where the appellant was held while awaiting trial. She testified that he told her that he had [translation] "jacked"[2] Ellis in retaliation for Ellis [translation] "jacking" his friend Rydewood.
[19] Jean-Claude Gauthier, an expert on street gangs, testified, amongst other things, on the appellant's affiliation with the Crips.
[20] The fact that the victim's blood was found on the appellant's sweater, his pants, and the soles of his shoes was entered in evidence.
[21] The prosecution also adduced evidence of telephone conversations that had been electronically intercepted by the police.
[22] The appellant did not testify in his own defence, but was heard during the voir dire on the admissibility of the admission he allegedly made to [Worker 1].
GROUNDS OF APPEAL
[23] The appellant submits many grievances against the verdict as well as various rulings made during the proceedings. His grounds of appeal can be rephrased as follows:
1. Did the trial judge err in finding the admission made by the appellant to [Worker 1] admissible when it should have been protected by a confidentiality privilege?
2. Did the judge err in allowing the appellant's post-offence conduct and his propensity to commit crimes of violence to be put into evidence, where the prejudice caused by this evidence clearly outweighed its probative value, and where the final instructions could not remedy the prejudice?
3. Did the judge err in authorizing hearsay evidence regarding the prior identification of the appellant?
4. Did the judge err in allowing police officer Jean-Claude Gauthier to testify as a street gang expert to tie the appellant to a criminal organization, though this evidence was highly prejudicial and its probative value too weak?
5. Did the judge err in dismissing the Corbett application?
6. Did the judge err by not immediately and appropriately correcting the remarks made by counsel for the respondent during his final argument?
7. Did the final argument of counsel for the respondent cause serious harm to the appellant, in breach of subsection 4(6) of the Evidence Act?
[24] As previously mentioned, in my opinion, these grounds for appeal do not justify the intervention of this Court and, consequently, I find that the appeal should be dismissed. I will explain myself by addressing each of the grievances raised by the appellant.
1. THE ADMISSION TO [Worker 1]
[25] A voir dire was held to determine the admissibility of the admission of guilt allegedly made by the appellant to [Worker 1]. Consequently, witnesses were heard and deference must be shown to the trial judge's assessment of the evidence and the findings of fact drawn therefrom. As we already know, the prosecution was authorized to present the evidence to the jury.
1.1 Evidence during the voir dire
1.1.1 [Worker 1]'s testimony
[26] [Worker 1] has been a special education technician since 1989. She has worked part-time at the [Youth Centre of A] since 1999. She first met the appellant in 2005, when he was a resident of the [Youth Centre of A] following charges of sexual assault and robbery.
[27] In March of 2007, she arrived at the [Youth Centre of A] to begin her work day. The appellant, then eighteen and a half years old, asked her to follow him into his room so he could show her something. It should be added at this point that she was not his assigned case worker; that was Ms. [Case worker] at the time.
[28] She followed the appellant and, once in his room, he showed her a large piece of paper on which she could read that he had been charged with murder. She also saw the names of other youths she already knew who were also charged with the murder. Presumably, this document was the indictment.
[29] This was the first time she heard that the appellant had been accused of murder. She was astounded and asked him if he had indeed committed the crime. This is what she said then happened:
[translation]
So then I looked at X, I said: "Did you do it?" Then, he looked at me, and he saw that my expression had changed, and he said to me: "Yes!" I said: "Couldn't you have done something else?" Then, he told me:"You know that's how it works on the streets." Then I got a weird feeling, then he looked at me, and he said: "Are you OK?"I said: "No." Then, he said to me...well, I asked him: "How? How did you do it?" And then, he answered: "I jacked him." and then, he told me: "Well, it's because he'd jacked my buddy, so I had to pay him back." So, I lectured him a bit, like I always do, and then I left his room.
[30] The meeting lasted some three or four minutes.
[31] It is only on April 6, 2007, when information was being exchanged between educators that [Worker 1] told [Case worker], the assigned case worker, what the appellant had told her. [Case worker] was having a discussion with another educator about the fact that the appellant refused to admit that he had perpetrated the murder. It was then that [Worker 1] interjected and told them that this was not the case; he had, in fact, confided in her that he had done it.
[32] [Case worker] asked [Worker 1] to write this information down in the appellant's follow-up form (what the workers call the "chronology"). Workers use this form to note a variety of information on a daily basis and both the educators and the director of the centre have access to it.
[33] [Worker 1] expressed concern that the youths in the unit might find out the contents of the form and worried about the appellant’s fate should that happen. [Case worker] reassured her by promising that the information would be used only for clinical purposes. [Worker 1] therefore wrote the following:
[translation]
Two weeks ago, X told me that he wanted to speak with me. I went to his room and he showed me his indictment for murder. I asked him whether he had really done it. He answered, "Yes, but I didn't think I would get caught." I asked him why he had done it. He answered, "Well, he killed my partner. So, I did the same to him." Again, I questioned him. How did you do it? "I jacked him". I did not feel that he was remorseful. I had discussed his offence before, sometime last summer. He had claimed that he was not involved in the gang rape because all he did was hold the girl down during the assault. I told him that his actions made him just as guilty as those who had actually committed the rape. Unfortunately, I did not feel he had any compassion for the girl, the victim. Afterwards, I told him of my complete disagreement and the sadness I felt for the victim and the impact on a person who lives through such trauma. At that moment, he had an unfamiliar reaction, I reached him, and he answered "I guess she didn't think it was much fun."
[34] A few days later, she found out that [Youth worker], the appellant's youth worker, had confronted the appellant with his admission.
[35] [Worker 1] wanted to talk it over with the appellant. She explained to him that she could not keep it to herself because he confided in her as an educator. He told her not to worry about it, that he didn't hold it against her.
[36] The officers met with her on June 20, 2007, and she gave a statement relating the events.
[37] On September 8, 2007, she was called in by the department head, France Julien, and an educator, [Worker 2]. They suggested that she resign from her position because [Worker 2] had reported seeing her in the room of Y, one of the youths. The lights were off, the door ajar, and he saw that she was leaning over the youth, in a suggestive position. He specified, however, that this is all he saw:
[translation]
That’s all I saw, I didn't see you with his penis in your mouth ….
[38] She denied the incident, but requested a leave of absence the next day, which was granted.
1.1.2 The appellant's testimony
[39] The judge summarized the testimony of the appellant, identified by the initials [X]:
[translation]
[13] [X] testified that he thought what he told [Worker 1] would stay within the unit; that, at most, it would get as far as the department head. He was always told that anything he said to the workers was used solely for clinical activities. In his view, his statement was part of those clinical activities.
[14] In his view, there is no need to specify that the conversation must stay between them because anything said or done within the unit stays there. He says that this operational method applies to both trivial and consequential information.
[15] He is aware that what he tells the educators goes into his file.
[16] He testified that his attorneys counselled him against speaking of the murder in the [Youth Centre of A].
[17] He states that he told [Worker 1] what he did because he was looking for comfort. He does not understand why some witnesses are implicating him in the murder. He spoke with [Worker 1] because he wasn't feeling well at the time, and couldn't find his therapist with whom he wanted to speak.
[18] He also says that, through his statement, he wanted to show [Worker 1] that he was a man, and that he was up to the task of discussing the issue.
[19] He states that he did not make any admissions about the murder to [Worker 1]. In his view, her version misinterprets his comments during that meeting.
[40] The appellant explained that he did not say that he had been involved in the murder. Rather, he let [Worker 1] know that he was charged with it, to show her that he was a man, able to discuss these things because, he added, she would tell him that he [translation] "was wet behind the ears”.