Errors in trial decision no guarantee for successful appeal

Law360 Canada (June 17, 2024, 12:04 PM EDT) --

John L. Hill

Three homicides that occurred in 2007 had police investigators stymied for years. Then, on Dec. 18, 2014, a 101-year-old D-Day veteran, Ernest Côté, was found murdered at his home. Police charged Orleans, Ont., resident Ian Bush with the murder. While Bush was undergoing psychiatric examination and found fit to stand trial, Ottawa police, with the help of forensics, linked the Côté killing to the deaths of the Chief Justice of the Tax Court, Albon Garon, his wife Raymonde and their neighbour, Marie-Claire Boniskos.

Bush was convicted of both the Côté murder and the triple murder of the judge, his wife and their neighbour. Bush appealed both verdicts. The Ontario Court of Appeal dismissed the appeal of the Côté decision in April (R. v. Bush, 2024 ONCA 245). The Court of Appeal’s decision on the triple homicide appeal was released on June 13 (R. v. Bush, 2024 OCNA 469).

The most recent appeal decision dealt with Bush’s claim that the jury was influenced by improper admission of evidence pointing to planning and deliberation. The second ground of appeal claimed the trial judge erred in instructing the jury that even if planning and deliberation applied to one victim, it could not be used to support the killing of two others who simply got in the way.

There was no doubt that Bush had a “combative relationship” with the Canada Revenue Agency (CRA). He had sent a profanity-laced letter to the CRA with the heading “Extortion Canada, Shakedown Division.” He lost appeals of his tax assessments in the Tax Court. In 2001, Bush faxed a letter to Chief Justice Garon as a summons from the “High Court of Humanitarian Justice,” requiring the judge to attend at the Bush residence on pain of nullifying all Tax Court decisions requiring Bush to pay. A subsequent audit placed more pressure on Bush. Bush believed the government had no right to tax and made his views widely known. He was taped entering the Garon residence and identified.

Garon’s and the two women’s bodies were found in the Garon home with plastic bags over their heads and their limbs tied. A diluted blood stain and hair fibre were found.

After the Côté murder, a police search of Bush’s apartment found what was referred to as a “murder bag” that contained a sawed-off shotgun, ropes and an outline for a novel expressing hatred of the government. This evidence was tendered at the trial for the Garon murders as evidence of planning and deliberation. The trial judge, with no apparent objection from defence counsel, admitted the murder bag and its contents without examining the probative value of each item in the contents. Appellate defence counsel argued that all items being admitted could lead a jury to conclude that there was premeditation wrongly. It seemed only rubber gloves found in the murder bag could have relevance to the multiple homicides.

The Court of Appeal accepted this position. Without a limiting instruction from the trial judge, the inclusion of all items in the bag as evidence risked distracting jurors by placing focus on uncharged criminal conduct. Further, the items admitted risked incidentally exposing the accused’s bad character. The trial judge ought to have weighed the probative value of the evidence against its prejudicial effect before allowing its admission into evidence (R. v. G. (S.G.), [1997] 2 S.C.R. 716, and R. v. O.R., 2015 ONCA 814).

The trial judge also erred by improperly instructing the jury on transferred intent. Transferred intent occurs when the injury intended for one falls on another by accident (R. v. Gordon, 2009 ONCA 170). However, the Court of Appeal noted the evidence does not support the multiple killings as a case of transferred intent.

This case was more akin to the situation in R. v. Ching, 2019 ONCA 619, where first-degree murder lies when an accused is proven to intend the killing of both a specific victim and anyone who might get in the way of that deliberate act. The trial judge erred by not explaining that a second-degree murder conviction could result if the jury believed the killing of Garon’s wife and neighbour was unintended. Bush had not formulated an intention to kill whoever got in the way.

Here, the evidence was overwhelming that it was Bush who entered and killed the three victims. The verdict did not turn on the admissibility of items found in the murder bag. The evidence that all three victims were asphyxiated and bound with twine shows that they were forcibly confined. First-degree murder can result when death ensues while a person is forcibly confined (s. 231 (5)(e) of the Criminal Code and R. v. Sundman, 2022 SCC 31).

Section 686(1)(b)(iii) permits an appellate court to dismiss an appeal even when errors at trial are evident but where there has been no substantial wrong or miscarriage of justice. In this case, even though errors were found, the jury's decision that Bush committed three first-degree murders was justified.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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