R. v. Barrett (P.), 2016 ONCA 12

• Judge: Watt, Hourigan and Huscroft, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 21, 2015
• Jurisdiction: Ontario
• Citations: 2016 ONCA 12;(2016), 346 O.A.C. 1 (CA)

R. v. Barrett (P.) (2016), 346 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. JA.006

Her Majesty the Queen (respondent) v. Patrick Barrett (appellant)

(C57599; 2016 ONCA 12)

Indexed As: R. v. Barrett (P.)

Ontario Court of Appeal

Watt, Hourigan and Huscroft, JJ.A.

January 8, 2016.

Summary:

L.C. was beaten to death by her common law husband, Barrett. Barrett was convicted of second degree murder. The trial judge ruled that Barrett would not be eligible for parole for 15 years. Barrett appealed his conviction. He also sought leave to appeal sentence, arguing that his period of parole ineligibility should be reduced to 12 years.

The Ontario Court of Appeal dismissed the conviction appeal. The court granted leave to appeal sentence, but dismissed the sentence appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 1281

Offences against person and reputation - Murder - Provocation - What constitutes "sudden provocation" - [See Criminal Law - Topic 1284 ].

Criminal Law - Topic 1283

Murder - Provocation - What constitutes a "wrongful act" or "insult" - [See Criminal Law - Topic 1284 ].

Criminal Law - Topic 1284

Murder - Provocation - Ordinary person - What constitutes - In statements made to the police, Barrett admitted to beating his common law spouse (L.C.) to death with a hammer as she slept in their bedroom - He told the police that he "lost it" when L.C. insisted that if she was pregnant she would have an abortion - Barrett advanced the defence of provocation, arguing that L.C.'s firm resolve to have an abortion caused him, a devoutly religious man, to lose control - The trial judge held that there was no air of reality to the defence and refused to put it to the jury - Barrett was convicted of second degree murder - Barrett appealed his conviction, submitting that the trial judge erred in declining to instruct the jury on provocation - Barrett submitted that the trial judge erred in her analysis of the suddenness element and that the trial judge did not properly take into account contextual factors in assessing the ordinary person test - The Ontario Court of Appeal dismissed the appeal - In these circumstances, it could not reasonably be inferred that any insult or Barrett's reaction to such insult was sudden - With respect to the ordinary person test, the contextual factors proposed by Barrett were so specific to Barrett that they turned this element of the test into a purely subjective one - In any event, the trial judge stated in her reasons that she took the factors proposed by the defence into account when assessing the ordinary person test and, that even with these factors included, there was no suggestion that an ordinary person would have been deprived of self-control - There was no basis to interfere with that conclusion - The trial judge's only error was in finding that L.C.'s assertion that "If I am pregnant, I am having an abortion" could constitute an insult for the purposes of the defence of provocation - However, that error enured to the benefit of Barrett - See paragraphs 23 to 31.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - Barrett appealed his conviction for second degree murder - The only issue for the jury had been whether the Crown had proved beyond a reasonable doubt that Barrett possessed the necessary intent to be convicted of second-degree murder, rather than manslaughter - Barrett did not testify at trial - He relied, as did the Crown, upon two statements he had given to police - Barrett submitted that the trial judge's failure to provide the jury with an R. v. D.W. (S.C.C.) instruction on how to consider the exculpatory portions of his statements to police as a source of reasonable doubt even if not affirmatively believed, constituted reversible error - The Ontario Court of Appeal rejected this ground of appeal - A consideration of the jury charge as a whole demonstrated that the jury was properly instructed on the interplay between the exculpatory aspects of the Barrett's statements and the reasonable doubt analysis - See paragraphs 8 to 22.

Criminal Law - Topic 4375.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding exculpatory statements by accused - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - [See Criminal Law - Topic 5881 ].

Criminal Law - Topic 5881

Sentence - Murder - L.C. was beaten to death by her common law husband, Barrett - Following the homicide, Barrett covered L.C. with a blanket, tore two pages from his Bible, and pinned them to her chest with a knife - Barrett made two statements to the police wherein he admitted to beating L.C. to death with a hammer as she slept in their bedroom - He told the police that he "lost it" when L.C. insisted that if she was pregnant she would have an abortion - Barrett was convicted of second degree murder - The trial judge ruled that Barrett would not be eligible for parole for 15 years - Barrett appealed his sentence, arguing that his period of parole ineligibility should be reduced to 12 years - The Ontario Court of Appeal stated that "appellate intervention is not justified in this case. This was a vicious killing of a defenceless victim, which was followed by the desecration of her body. The victim's severely disabled son lost his mother, who was his primary caregiver. The parole ineligibility period imposed was entirely reasonable given these and the other aggravating factors identified by the trial judge" - See paragraphs 32 to 35.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 6].

R. v. Bucik (M.) (2011), 283 O.A.C. 161; 274 C.C.C.(3d) 421; 2011 ONCA 546, consd. [para. 10].

R. v. Araya (N.), [2015] 1 S.C.R. 581; 468 N.R. 114; 329 O.A.C. 1; 2015 SCC 11, refd to. [para. 13].

R. v. B.D. (2011), 273 O.A.C. 241; 266 C.C.C.(3d) 197; 2011 ONCA 51, refd to. [para. 13].

R. v. King (T.) (2013), 309 O.A.C. 39; 2013 ONCA 417, refd to. [para. 13].

R. v. J.H.S., [2008] 2 S.C.R. 152; 375 N.R. 67; 265 N.S.R.(2d) 203; 848 A.P.R. 203; 2008 SCC 30, refd to. [para. 13].

R. v. Cyr (P.L.) (2012), 300 O.A.C. 111; 294 C.C.C.(3d) 421; 2012 ONCA 919, refd to. [para. 13].

R. v. Tuck (J.) (2014), 329 O.A.C. 71; 123 O.R.(3d) 321; 2014 ONCA 918, refd to. [para. 14].

R. v. Bengy (K.) (2015), 335 O.A.C. 268; 325 C.C.C.(3d) 22; 2015 ONCA 397, refd to. [para. 14].

R. v. Moffit (T.) (2015), 338 O.A.C. 144; 326 C.C.C.(3d) 66; 2015 ONCA 412, refd to. [para. 14].

R. v. Tran (T.K.), [2010] 3 S.C.R. 350; 409 N.R. 1; 493 A.R. 123; 502 W.A.C. 123; 2010 SCC 58, refd to. [para. 23].

R. v. Dooley (E.A.) (2009), 257 O.A.C. 150; 249 C.C.C.(3d) 449; 2009 ONCA 910, refd to. [para. 34].

Counsel:

Richard Litkowski, for the appellant;

Karen Papadopoulos, for the respondent.

This appeal was heard on October 21, 2015, before Watt, Hourigan and Huscroft, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Hourigan, J.A., on January 8, 2016.