2 for the Reasons of Giroux J.A., with Which Thibault and Gagnon, JJ.A., Agree;

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[1]THE COURT:– On appeal from a verdict rendered May 30, 2008, by a jury, presided by the Honourable Mister Justice Jacques Viens (Superior Court, Criminal Division, District of Abitibi) convicting the appellant on a charge of first degree murder;

[2]For the reasons of Giroux J.A., with which Thibault and Gagnon, JJ.A., agree;

[3]DISMISSES the appeal.

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[4]The appellant appeals from a verdict of first degree murder (s.231(5) Cr. C.) rendered on May 30, 2008, by a jury presided by the Honourable Jacques Viens of the Superior Court, Criminal Division, District of Abitibi.

1.THE FACTS

[5]The appellant and the victim, Kitty Thomassie, had been de facto spouses, but, some time before the events of February 4, 2006, the appellant went back to living with his mother, Pacha Grey. For her part, the victim was living at that time with her mother, Jessie Thomassie, her brother, Jimmy Thomassie, and her daughter, X, born from another relationship. They occupied a house in Kangirsuk, a small Inuit village on the west coast of Ungava Bay. At that time, X was seven years and nine months old.

[6]On February 4, 2006, the appellant smoked a cannabis joint with a friend and then, at about 4:30 p.m., went to another friend’s birthday party, where he consumed more cannabis, beer and hard liquor, even though he was prohibited from consuming alcohol. He estimated his consumption at 15 beers and a good portion of a 10-ounce bottle of liquor.

[7]He then went to the home of a third friend, Lazarus, and from there drove to the home of Maggie Annanak. From that time, the appellant states that he does not remember anything until he was awoken after the crime by Jimmy Thomassie, the victim’s brother.

[8]According to the testimony of the victim’s mother, Jessie Thomassie, and that of her daughter, X, during the night of February 4 to 5, the appellant, who was inebriated, entered the house of the victim’s mother and went into the bedroom where the victim was in bed with X. The daughter heard the appellant say “I want to sleep with you”. She left the room in order to sleep with her grandmother.

[9]The appellant and the victim then came out of the bedroom. According to the victim’s mother, the appellant was holding the victim by the arm and led her to the table near the stove. At that point, the victim’s mother and X were on the sofa in the living room. According to X, her mother came out of the bedroom first. She also said that when the appellant entered the bedroom, he was wearing black trousers, but was naked from the waist up. Once he left the bedroom, he put on his parka.

[10]The victim’s mother and daughter saw the appellant beat the victim with his fists and feet and then with a leg that he had broken off the table. He also pulled on her hair. While beating the victim, the appellant completely undressed her.

[11] X also said that at one point the appellant dropped the table leg, placed a drawer from the kitchen on the floor and took from it a knife, with which he struck the victim. She also saw blood spurting and hair “flying around”.

[12]X and her grandmother, Jessie Thomassie, then fled the house and took refuge with a neighbour in order to call for help. According to the grandmother, it was 1:00 a.m.

[13]Once X had left the house, she also saw the appellant remove a bed from the house and then drag the victim out of the house by the ankles. He then lay down on the bed.

[14]At about 12:15 or 12:20 a.m. on the night of February 4 to 5, 2006, the victim’s brother, Jimmy Thomassie, was informed by telephone that someone had been beaten. He went to the house where the events had taken place and entered it. He saw blood on the floor and looked in all the rooms, but found no one. He went to the CLSC and then returned to his mother’s house, accompanied this time by two other men. On returning, in front of the house he saw a trail of blood leading to the back of it. He followed the trail of blood and discovered the naked body of the victim on a mattress, with her legs spread apart. The appellant was asleep on the same mattress with his arms around the victim’s waist. He was wearing his parka and trousers.

[15]According to Dr. Annie Sauvageau, the medicolegal pathologist who performed the autopsy on the victim and testified during the trial, the victim was struck multiple times with a blunt object, such as a baseball bat or a table leg. For example, she was struck several times on the forehead, on the back of the head, on both sides of her arms and legs and in the stomach. The victim’s injuries included a broken rib and intestinal bleeding in two places.

[16]According to the autopsy, the victim was dragged by the legs, face down. She was stabbed with a knife 15 times in the thorax, abdomen, right hand and back. Even though she had other injuries to her lungs, liver and stomach, the cause of death was a stab wound that severed her aorta. Death came quickly, within a few minutes.

2.THE TRIAL

[17]The appellant is accused of first degree murder under s. 231(5) Cr. C., and his trial before a jury took place from May 12 to 30, 2008.

[18]During discussions with the judge in the absence of the jury, counsel for the appellant admitted that the appellant had killed the victim. Accordingly, the only verdicts that were submitted to the jury by the trial judge were those of first degree murder if the murder was committed during a sexual assault or forcible confinement (s. 231(5) (b) or (e)), second degree murder (s. 231(7)) or manslaughter (s. 234) because the appellant claimed intoxication as his defence.

[19]On May 30, 2008, after deliberating for about one hour and 40 minutes, the jury found the appellant guilty of first degree murder.

3.THE APPEAL

[20]It should be noted that the jury trial essentially concerned criminal intent and the defence of intoxication. On appeal, this matter is no longer at issue because the defence of intoxication is in no wise cited as a ground of appeal.

[21]The appellant states four grounds in support of his appeal:

1. The judge erred in opening the verdict of first degree murder in the context of a sexual assault because there was no evidence of such an assault concomitant with the murder;
2. The judge erred in his instructions to the jury when he referred to first degree murder committed during forcible confinement by not explaining sufficiently that the force inherent in the commission of the murder was not in itself sufficient to conclude beyond any reasonable doubt that forcible confinement had taken place;
3. After having granted a Corbett motion brought by the appellant, the judge erred in law by allowing the respondent to question the appellant about the terms of a conditional sentence that involved conditions concerning the victim; and
4. The verdict returned by the jury is unreasonable in that it is not based on the evidence adduced during the trial and was not one that a jury that had received the appropriate instructions could have reasonably returned.

4.DISCUSSION

4.1The matter of sexual assault concomitant with murder

[22]According to the appellant, the judge should not have submitted the verdict of first degree murder concomitant with sexual assault to the jury. He argued, for example, that, during the conference held between the judge and counsel before instructing the jury, the judge wanted to obtain the respondent’s consent so as not to open the murder to the first degree because, according to him, there was no evidence that actions of a sexual nature had taken place and the circumstantial evidence relating to this element was equivocal.

[23]It is true that, during the pre-hearing conference held in the absence of the jury on May 29, 2006, the judge expressed doubts about the relevance of opening the verdict of first degree murder committed in the context of a sexual assault, given the circumstantial nature of the evidence adduced regarding the offence of sexual assault. From the outset, the judge recognized the use of force against the victim, but had questions as to whether the force was used in circumstances of a sexual nature.

[24]Counsel submitted their opinions on this matter to the judge, who, after hearing them, was evidently reassured, because in his instructions on this matter, given on the following day, June 30, he decided to open the verdict of first degree murder in the context of a sexual assault, of which he clearly explained the elements to the jury. In doing so, the judge committed no error of law because it was up to the jury to draw the final conclusion about the existence of elements of sexual assault on the basis of the facts demonstrated by the evidence.[1]

[25]The appellant added, however, that the evidence regarding sexual assault was merely circumstantial and that the judge gave no instructions regarding the fact that circumstantial evidence regarding a possible sexual assault must be unequivocal, otherwise the accused must be declared not guilty. In his view, not only was this evidence merely circumstantial, but it was also equivocal.

[26]To assess this argument, I believe it is necessary to point out the main elements of evidence adduced at trial that are likely to be relevant to the matter of an offence of sexual assault underlying that of first degree murder:

-on entering the victim’s bedroom, the appellant took off his overcoat as well as his T-shirt, which was later found in the bedroom;

-as reported by the child, X, he said to the victim: “I want to sleep with you”;

-when the victim came out of the room with the appellant, she was dressed in a nightgown, a bra and a pair of underwear. This clothing was ripped off by the appellant while he was beating her;

-the victim was found naked on a mattress with a small quantity of sperm in her vagina. Christine Jolicoeur, the medicolegal biologist whose quality as an expert was allowed, testified that DNA analysis of the sperm showed a mix of the victim’s DNA and the appellant’s DNA;

-according to this expert, the presence of the small amount of sperm can be explained in various ways: deterioration, sperm flow, ejaculation outside the vagina or a broken condom;

-there was no sperm on the sheet covering the mattress found outside the house;

-also according to Ms. Jolicoeur, it is not possible to determine precisely how long the sperm had been in the victim’s vagina. Given that it is almost impossible to obtain a DNA analysis result after five days, she concluded that the small amount of sperm was introduced into the victim’s vagina between zero and five days before the sampling carried out shortly after her death;

-the appellant testified that he had had consensual sexual relations with the victim five days earlier and that he did not use condoms when he had sexual relations with her;

-at trial, the appellant’s mother, in her testimony given on May 27, 2008, first stated that at the time of the events, her son had been living with her for two or three weeks, whereas he had been previously living with the victim. When her examination in chief resumed on the following day, May 28, 2008, she corrected her testimony of the previous day, stating this time that the appellant had been living with her for only three days. During cross-examination, she acknowledged that her sister Vicky had refreshed her memory about this matter from the transcript of her testimony at the preliminary investigation, which her sister read to her. In his address to the jury, counsel for the respondent questioned the reliability and credibility of her testimony;

-Éric Kudluk, the witness who was with Jimmy Thomassie when the body was found, saw an unwrapped condom near the victim’s body when the appellant was still lying next to the victim on the mattress outside the house;

-at trial, crime scene specialists made a distinction between the blood that flows from an injury and that which results from contact with a bloodied object or a person on whom there is already blood. In the latter case, the bloodstain comes from a transfer.

[27]In R. v. Ewanchuk,[2]the Supreme Court sets forth the elements constituting the offence of sexual assault:

23A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.[3]

The Court adds that the offence is comprised of an assault within any one of the definitions in s. 265(1) of the Cr. C.,which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated.[4]

[28]The Supreme Court also explains the test to be applied to determine whether the impugned conduct has a sexual connotation:

Applying these principles and the authorities cited, I would make the following observations. Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: “Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer” (Taylor, supra, per Laycraft C.J.A., at p. 269). The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant (see S. J. Usprich, “A New Crime in Old Battles: Definitional Problems with Sexual Assault” (1987), 29 Crim. L.Q. 200, at p. 204.) The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.[5]

[29]In this instance, the appellant is wrong when he postulates that the evidence of sexual assault was merely circumstantial. The consistent testimony of the victim’s mother and her daughter, X, who stated that the appellant completely undressed the victim while beating her, constitute direct evidence. Moreover, X stated that, when the appellant entered the victim’s bedroom, he was naked from the waist up and he expressed the will to “sleep” with the victim. I note that neither the mother, Jessie Thomassie, nor X was cross-examined by counsel for the appellant.

[30]In addition, considering that the evidence of sexual assault was not merely circumstantial, the judge was not obliged to give specific instructions regarding circumstantial evidence of sexual assault, as the appellant argues. The general instruction regarding the nature of circumstantial evidence and the caution regarding its probative value were sufficient. The Supreme Court recently reiterated that there is no requirement to give the jury “special instructions” on circumstantial evidence, even where the issue concerns a matter as difficult as identification.[6] The judge respected the essential element of an instruction on circumstantial evidence when he cautioned the jury:“Before basing a verdict of guilty on circumstantial evidence, you must be convinced beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to draw from the facts you have chosen to rely upon.”[7]

[31]Lastly, regarding the sexual nature of the assault, the judge not only instructed the jury as to the need for the presence of this constituting element of the offence, but also referred the jury to the evidence that had been heard, as it appears from the following excerpt from his instructions: