Appeal Court in murder case weighs holding cell confession

By John L. Hill

Law360 Canada (May 1, 2023, 1:56 PM EDT) --
John L. Hill
John L. Hill
Nobody really knows what went on in a grubby Peterborough apartment the night of July 28, 2012. George MacKenzie was a 66-year-old whose left side was impaired by a stroke. He was dependent on his sister and daughter to provide him with groceries, alcohol and cigarettes. He lived alone but, perhaps despite having family connections, he was lonely.

MacKenzie befriended 40-year-old Dorothy Groves. Groves was living on the streets. She was on probation and had a lengthy criminal record. She too was lonely. Her family had given up on her years before. She had been living on the streets since she was 16 and became addicted to drugs and alcohol at an early age. She maintained herself by panhandling, sex work and welfare cheques. She never held down a job. Most of her money went to feeding a crack cocaine habit.

Something happened the night of July 28, 2012, that led to the arrest of Groves. MacKenzie ended up being fatally stabbed once in the chest. Although in the past, Groves had visited, eaten and drank with MacKenzie, the relationship had been deteriorating.  Police were called to the residence a week before. MacKenzie had reported Groves for stealing cigarettes and alcohol. No charges were laid. This time, Groves remained in the apartment until MacKenzie bled to death. She left thereafter with some of MacKenzie’s personal property and his whisky and beer. She was spotted leaving by neighbours with blood on her face and chest. She appeared to be intoxicated.

At the outset of her trial, Groves pleaded not guilty to murder but guilty of manslaughter. The Crown rejected the plea and trial continued. Groves watched the anguish of the MacKenzie family in court. She had no one to comfort her. Then, during the trial, she spoke with a special constable while in the cells. Those ultimately became the words used to convict her of murder. While in a holding cell during the lunch recess she told the uniformed constable that she wanted to kill MacKenzie. She just did not think it would happen as it did. She indicated how she had swung the knife in a backward motion and then panicked. The trial judge allowed this statement to be admitted as evidence. The jury found Groves guilty of second-degree murder. Although the Crown wanted 17 years of parole ineligibility, the sentencing judge took into account her unfortunate past and imposed a life sentence without parole for 13 years.

Groves appealed. A three-judge panel of the Ontario Court of Appeal affirmed the conviction and sentence on March 27, 2023, (R. v. Groves 2023 ONCA 211). The appeal centred on two issues: Had the statement made during the trial in the holding cells been improperly admitted, and was the jury properly instructed on the defence of accident.

On the first ground, defence counsel noted that two psychologists determined that Groves had a moderate intellectual disability with an IQ of 57. The Court of Appeal upheld the trial judge’s ruling. Groves had been warned by police at the time of her arrest and understood her right to remain silent. Her statement in the cells was voluntary and admissible. Despite her emotional upset and cognitive impairment, she possessed an operating mind. She knew who she was speaking with and the consequences of so doing. The court cited R. v. Tessier 2022 SCC 35 in holding that deference ought to be given in determining the admissibility of the confession.

The second ground urging the defence of accident was also rejected. If “accident” meant she had no mens rea, that contention is negated by her plea of manslaughter and her admission of intent to kill. The judge’s charge to the jury was proper in this regard.

It appears the criminal law was properly applied, and public safety has been maintained by removing such a dangerous woman from our streets. Some would point out that instead of praising our courts for being reactive, we should look into ways in which society could have been proactive so that George MacKenzie could have lived on. We continue to use our penitentiaries as warehouses for people whose mental illness, life on the streets and substance abuse have resulted in tragedy.

The Ontario Ombudsman in a recent report Nowhere to Turn makes many recommendations concerning criminalization and incarceration of people with developmental disabilities. He called on the Ministry of Community and Social Services to work with partners to develop “a responsive and proactive system of residential supports to divert adults with developmental disabilities away from the criminal justice and correctional systems” and to “help with planning to ensure there are adequate resources including supervised residential placements within the community as an alternative to incarceration.”

Maybe the time to deal with crime is before it happens.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from QuAdmin een’s and 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), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  

Photo credit / julymilks ISTOCKPHOTO.COM 

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.

LexisNexis® Research Solutions