Doyon, Healy, Beaupré

Application for leave to appeal from sentence. Granted. Appeal from sentence. Dismissed.

A jury convicted the appellant of the first degree murder of his former spouse. The unreasoned verdict does not reveal whether the jury found that the murder was planned and deliberate (s. 231(2) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.)) and/or a murder committed while committing the offence of criminal harassment (s. 231(6) Cr. C.). The trial judge sentenced the appellant to imprisonment for life without eligibility for parole for 25 years, in accordance with s. 745(a) Cr. C. The judge dismissed the appellant’s application to declare the sentence unconstitutional. According to the judge, the issue was essentially moot and did not have to be dealt with because the challenge concerned only the sentence imposed for murder accompanied by criminal harassment and because the murder in question had been both planned and deliberate and committed during the criminal harassment. Moreover, the judge held that the issue had already been determined in Meunier c. R. (C.A., 2014-09-17), 2014 QCCA 1681, SOQUIJ AZ-51108126, 2014EXP-2935, J.E. 2014-1680.

The judge correctly drew upon R. v. Ferguson (S.C. Can., 2008-02-29), 2008 SCC 6, SOQUIJ AZ-50475579, J.E. 2008-514, [2008] 1 S.C.R. 96 to conclude that the facts he had accepted proved beyond a reasonable doubt that the murder had been planned and deliberate, even if the criminal harassment could also have been proved. The judge did not have to ask whether it was likely or reasonably possible that one of the jury members might have convicted the accused based on murder accompanied by criminal harassment. Rather, the judge had to examine the evidence to draw his own findings of fact – obviously consistent with the verdict – not try to reconstruct the logical process of the jury. While certain jurors might have found murder in the first degree because it was committed at the same time as the offence of criminal harassment, this is not the issue. First, what matters is the judge’s findings of fact, not the path taken by one or several jurors. Second, an appellate court cannot intervene in these findings of fact in the absence of a reviewable error of fact. The judge’s inference regarding the murder’s planning contains no palpable and overriding error.

If the judge concluded that the evidence proved beyond a reasonable doubt that the murder was planned and deliberate, the exercise was over; the judge could not grant the application for unconstitutionality if the verdict was based on the planning, even if it could also be based on the criminal harassment. Thus, the judge could refuse to rule on the application because the issue had become academic.

Despite its usefulness, Meunier, which determined that section 231(6) Cr. C. did not impose cruel and unusual punishment within the meaning of section 12 of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I), cannot determine the debate on its own. The issue and arguments raised in that judgment were different. Meunier is still relevant to this case because it establishes that there is a high degree of moral culpability when the murder is committed during the harassment, thus reducing the value of the appellant’s argument that the moral turpitude in the event of harassment is lower than in planned cases.

Text of the decision: http://citoyens.soquij.qc.ca