Recorded messages focus of unsuccessful Ontario Court of Appeal bid

Law360 Canada (August 22, 2024, 1:10 PM EDT) --

John L. Hill

There is no doubt that Marc Pierre Gauthier killed Tammy Avery in their Sturgeon Falls apartment on Nov. 14, 2017. That was admitted by defence counsel Dan Baker when he addressed a seven-woman, five-man jury in Superior Court in North Bay.

It was a question of first- or second-degree murder. The jury returned a verdict of first-degree murder at the end of a three-week trial. Gauthier was sentenced to life imprisonment without parole eligibility for 25 years. Gauthier appealed his conviction, and the Ontario Court of Appeal released its decision on Aug. 20, 2024 (R. v. Gauthier, 2024 ONCA 621). Counsel for Gauthier tried to urge the appeal court to see an error in admitting a transcript of a 911 call as a Charter violation and seek a new trial. The Court of Appeal refused and upheld the conviction and sentence.

Gauthier, 54, was a skilled carpenter who was unemployed for months before being arrested on the murder charge. He suffered from chronic obstructive pulmonary disorder and a heart issue. The jury heard that Gauthier had amassed a lengthy criminal record that included six crimes of violence, one of which was an assault on Avery that occurred 19 months earlier.

The evidence at trial described how Gauthier attempted to strangle 39-year-old Avery with an electrical cord, bludgeoned her with a blunt object and stabbed her 20 times with a Robertson screwdriver. All marks on Avery’s body were defensive wounds. Police kicked in the apartment door that had been barred with a board secured by screw nails.

The day before Avery died, Gauthier left a five-minute rambling voice message on his doctor’s phone at 9:40 p.m. He stated he was going to kill someone and that he would board up his apartment so that the police would need a bomb to get in. Two police officers and a guard at the North Bay Jail testified that Gauthier made admissions of his wrongdoing but cautioned that the statements were “late entries” into their notebooks. Gauthier did not testify at trial.

The appeal court was asked to decide if the trial judge erred in admitting the voicemail tape and allowing the police officers and guard to introduce statements not made when they were spoken.

On appeal, it was argued that the taped message should not be considered, as doing so would involve a breach of Gauthier’s expectation of privacy, contrary to s. 8 of the Charter, which guarantees the right to be secure against unreasonable search and seizure. The appeal court rejected this, saying there was no reasonable expectation of privacy, citing R. v. Reeves, 2018 SCC 56. Even though it has been held that two-way communications between a patient and a doctor are presumptively private (R. v. Marakah, SCC 59), it has now been determined in R. v. Singh, 2024 ONCA 66, that public safety and security must be factored into the reasonable expectation of privacy calculus. Because of the threatening and harassing nature of the message, the doctor rightfully reported it to the police. No privilege attaches when a message is meant to victimize (R. v. Lambert, 2023 ONCA 689; R. v. Pelucco, 2015 BCCA 370).

The officers’ statements were voluntary confessions and were rightfully admitted into evidence (R. v. Tessier, 2022 SCC 35). Defence had argued that the supposed confessions should be ruled inadmissible because the admissions of guilt were not audio recorded or videotaped. The statements were entered into officers’ notes 15 hours after they were uttered and devoid of context.

The appeal court accepted that the trial judge erred in not correctly assessing the evidentiary record to admit the confessions. However, Gauthier’s utterances were not made during a formal police interview. It would be for the triers of fact to determine the weight that should be attributed to the statements (R. v. Lapointe and Sicotte, (1983) 9 C.C.C. (3d) 366 (Ont C.A.)).

Nonetheless, the trial judge did err in admitting the statements, which would ordinarily be seen as undermining trial fairness and necessitating a new trial. However, the appeal court agreed with the Crown submission that the curative provisions of the Criminal Code could be applied since the evidence was overpowering as to Gauthier’s guilt and had no bearing on the prime question of whether Gauthier planned and premeditated the murder.

The verdict of first-degree murder was allowed to stand.

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) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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