R. v. Almarales (A.), 2008 ONCA 692

• Judge: Sharpe, Cronk and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 10, 2008
• Jurisdiction: Ontario
• Citations: 2008 ONCA 692;(2008), 244 O.A.C. 127 (CA)

R. v. Almarales (A.) (2008), 244 O.A.C. 127 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. OC.048

Her Majesty the Queen (respondent) v. Adrian Almarales (appellant)

(C43143; 2008 ONCA 692)

Indexed As: R. v. Almarales (A.)

Ontario Court of Appeal

Sharpe, Cronk and Watt, JJ.A.

October 10, 2008.

Summary:

A jury found the accused guilty of first degree murder, manslaughter and attempted murder. The Ontario Superior Court sentenced the accused to 20 years in jail on the manslaughter count. The accused appealed against the convictions for first degree murder and attempted murder. He also appealed against the sentence for manslaughter.

The Ontario Court of Appeal allowed the appeal. The court quashed the convictions and ordered a new trial for first degree murder and attempted murder. The court reduced the jail term to 12 years for the manslaughter count.

Criminal Law - Topic 1263

Murder - General principles - Intention - [See Criminal Law - Topic 1265.1 ].

Criminal Law - Topic 1265.1

Murder - General principles - Jury charge - First degree murder - A jury found the accused guilty of first degree murder and attempted murder - The case against the accused had rested on the combined operation of the secondary participation provisions of ss. 21(1)(b) and 21(1)(c) of the Criminal Code, together with the classification of murder as first degree murder under ss. 231(2) and 231(5)(e) - The Ontario Court of Appeal quashed the convictions where the final instructions to the jury were flawed in several respects - Firstly, the trial judge erroneously defined second degree murder as "an unlawful or intentional killing" - Secondly, the elements of constructive first degree murder were never fully articulated, and what was said contained a misdirection, namely, that this basis for first degree murder could be proven "whether or not the person means to cause death, if he means to cause bodily harm for the purpose of facilitating the offence of forcible confinement and death ensues as a consequence" - The final instructions, including the responses to the jurors' questions and the decision trees counsel prepared, lacked clear direction on the essential elements of secondary participation in first degree murder and attempted murder - The trial judge specifically told the jurors that he did not intend to review the essential features of the evidence and relate it to the issues on which the accused's liability turned if the jurors rejected duress, as seemed likely on the evidence adduced at trial - Finally, the instructions on evidence of after-the-fact conduct invited jury use of this evidence on the issue of the accused's "intent" - Such an expansive term as "intent", in the circumstances of this case, could well have left the jury with the impression that the evidence of after-the-fact conduct could be used to determine the level of the accused's culpability - On that issue, in this case, the evidence had no probative value - See paragraphs 1 to 134.

Criminal Law - Topic 1265.3

Murder - General principles - Jury charge - Attempted murder - [See Criminal Law - Topic 1265.1 ].

Criminal Law - Topic 1269

Murder - General principles - First degree murder - What constitutes - The Ontario Court of Appeal discussed what constituted secondary participation in first degree murder - See paragraphs 63 to 73.

Criminal Law - Topic 4350

Procedure - Charge or directions - Jury or judge alone - General - The Ontario Court of Appeal discussed the governing principles respecting instructions to the jury - See paragraphs 60 to 62.

Criminal Law - Topic 5882

Sentence - Manslaughter - The accused was found guilty of manslaughter as a secondary participant to murders by shooting - The trial judge sentenced him to 20 years in jail - The Ontario Court of Appeal reduced this term to 12 years - Firstly, the trial judge had referred to the accused as a principal when in fact, the basis of the accused's liability was as a secondary participant - Secondly, the trial judge never referred to the accused's 21-month pre-sentence detention - Finally, the 20-year term was beyond the range of sentence imposed on secondary participants - See paragraphs 135 to 146.

Cases Noticed:

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 60].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161; 113 C.C.C.(3d) 1, refd to. [para. 61].

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 61].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209; 78 C.C.C.(3d) 289, refd to. [para. 61].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321; 93 C.C.C.(3d) 1, refd to. [para. 62].

R. v. Nette (D.M.), [2001] 3 S.C.R. 488; 277 N.R. 301; 158 B.C.A.C. 98; 258 W.A.C. 98; 158 C.C.C.(3d) 486, refd to. [para. 64].

R. v. Maciel (R.) (2007), 222 O.A.C. 174; 219 C.C.C.(3d) 516 (C.A.), leave to appeal refused (2007), 378 N.R. 393; 220 C.C.C.(3d) vi (S.C.C.), refd to. [para. 66].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161; 99 C.C.C.(3d) 193, refd to. [para. 66].

R. v. Helsdon (J.) (2007), 220 O.A.C. 302; 216 C.C.C.(3d) 1 (C.A.), refd to. [para. 67].

R. v. Harbottle (J.), [1993] 3 S.C.R. 306; 157 N.R. 349; 66 O.A.C. 358; 84 C.C.C.(3d) 1, refd to. [para. 73].

R. v. Adams and Waltz (1989), 33 O.A.C. 148; 49 C.C.C.(3d) 100 (C.A.), refd to. [para. 74].

R. v. McNeil (J.) (2006), 216 O.A.C. 97; 213 C.C.C.(3d) 365 (C.A.), refd to. [para. 97].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1; 125 C.C.C.(3d) 385, refd to. [para. 107].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226 (C.A.), refd to. [para. 107].

R. v. Fraser (P.) (2001), 151 O.A.C. 137; 159 C.C.C.(3d) 540 (C.A.), refd to. [para. 107].

R. v. Pittiman (R.), [2006] 1 S.C.R. 381; 346 N.R. 65; 209 O.A.C. 388; 206 C.C.C.(3d) 6, refd to. [para. 124].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321; 59 C.C.C.(3d) 321, refd to. [para. 132].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 21(1)(b), sect. 21(1)(c), sect. 229(a), sect. 231(2), sect. 231(5)(e) [para. 35].

Counsel:

John M. Rosen and Delmar Doucette, for the appellant;

Riun Shandler, for the respondent.

This appeal was heard on March 10, 2008, by Sharpe, Cronk and Watt, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Watt, J.A., and released on October 10, 2008.