R. v. Bishop (C.), 2013 NUCA 3

• Judge: Côté, Rowbotham and O'Ferrall, JJ.A.
• Court: Nunavut Court of Appeal (Canada)
• Case Date: January 28, 2013
• Jurisdiction: Nunavut
• Citations: 2013 NUCA 3;(2013), 542 A.R. 166

R. v. Bishop (C.) (2013), 542 A.R. 166; 566 W.A.C. 166 (NUCA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JA.145

Her Majesty the Queen (respondent) v. Chris Bishop (appellant)

(21-10-006-CAP; 2013 NUCA 3)

Indexed As: R. v. Bishop (C.)

Nunavut Court of Appeal

Côté, Rowbotham and O'Ferrall, JJ.A.

January 28, 2013.

Summary:

A group of persons broke into the accused's home by kicking in the front door, intending to harm the accused. The accused retreated to his bedroom and armed himself with a rifle. When the invaders broke down his bedroom door, armed with a machete which they picked up inside the house, the accused began shooting. From inside the house and outside, the accused fired a total of 25 shots. Three invaders were killed. Two were wounded. Some were shot in the back as they fled, as the accused followed and kept shooting. The deceased invaders were shot multiple times. It was unclear whether the fatal shots were the ones from inside the house or from outside the house while the invaders were retreating. The accused was charged with three counts of second degree murder and two counts of attempted murder. He pleaded self-defence. It was conceded that the accused was entitled to act in self-defence. The issue was whether the force he used exceeded what was reasonable. A jury convicted the accused on all five counts. He was sentenced to life imprisonment without eligibility for parole for 16 years. The accused appealed, submitting that the trial judge erred in admitting bad character evidence respecting the accused. A witness testified that the night before the break-in the accused bragged that he was not afraid to use his gun as he had previously shot people in Yellowknife and that the persons who later broke into his house were going to pay for what they did to him earlier. The accused also argued that the trial judge erred in refusing to allow him to call evidence of the invaders' history of break-ins and violence.

The Nunavut Court of Appeal, O'Ferrall, J.A., dissenting, allowed the appeal and ordered a new trial. The trial judge erred in admitting bad character evidence respecting the accused and excluding defence evidence respecting the bad character of the invaders. This was not an appropriate case to invoke the curative provisions of s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the errors. The verdict would not necessarily have been the same.

Criminal Law - Topic 4329

Procedure - Jury - General - Verdicts - Duty of jury (incl. jury nullification) - A trial judge instructed a jury "that because they were the representatives of the community, they could bypass the defence of self-defence if they found it unreasonable in these circumstances" - The Nunavut Court of Appeal stated that the Criminal Code made self-defence mandatory, not to be overriden by a jury who believed it should not apply in a given set of circumstances - The court stated that "that instruction flirts with jury nullification of a statute, in favour of the prosecution" - See paragraph 133.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 5449 ].

Criminal Law - Topic 5202

Evidence and witnesses - General - Admissibility - Whether relevant and material - [See Criminal Law - Topic 5449 ].

Criminal Law - Topic 5205

Evidence and witnesses - Admissibility and relevancy - General - The accused shot and killed or wounded five persons who invaded his home to harm him - He pleaded self-defence - The trial judge excluded evidence respecting the invaders' criminal history of break-ins and violence - The grounds for excluding the evidence were unclear, but appeared to be that it was admitted that the invaders were the aggressors and that the evidence was unnecessary - The Nunavut Court of Appeal held that this ground was not valid - The court stated that "the authorities do not bar such evidence of past behavior where there is already before the court evidence of violence in the event being litigated. Indeed, some authorities require that there be some present violence; evidence of previous violence is a sort of confirmation of the present evidence. ... Besides, necessity is not usually a precondition to admitting any kind of evidence. No rule of law forbids a party to lead two pieces of evidence to prove the same thing, nor forbids him to adduce evidence to confirm evidence which someone else had given. ... If there is no jury, a trial judge is the finder of fact, and so can tell counsel that he needs no more evidence of a point, or that he understands a fact not to be contested. But a jury of 12 lay people may not think in such watertight compartments. And they cannot and did not here tell counsel their thinking in advance." - The defence evidence was relevant to both self-defence and provocation (i.e., to reduce murder to manslaughter if the accused used more force than necessary, precluding self-defence, but provocation could still be argued) - See paragraphs 42 to 55.

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - Invaders broke into the accused's home intending to harm him - They grabbed a machete - The accused barricaded himself in his bedroom with his rifle - After the invaders broke open his door, the accused fired - Two invaders were hit - They retreated - The accused followed, firing from inside and outside the house - Three invaders, hit multiple times, died - Two were wounded - The evidence was unclear as to where, out of the 25 shots, the fatal shots were fired - The accused pleaded self-defence - The Crown conceded that the invaders were the aggressors, but argued that the accused used more force that was necessary and had exacted revenge on the invaders because of previous altercations with them - A witness was permitted to testify that a few days before the break-in the accused said that he was going to pay these persons back and that he was not afraid to use his gun, as he had previously shot people in Yellowknife - While admitting this evidence over the accused's objection, the trial judge refused to permit the accused to call evidence respecting the invaders' criminal history of previous break-ins and violence - The only evidence the jury requested to re-read was that witness' testimony respecting the pay back threat and previous shootings - Shortly thereafter, the jury found the accused guilty of three counts of murder and two counts of attempted murder - The Crown had emphasized the "previous shooting" evidence and the trial judge gave no limiting instruction on its use - The Nunavut Court of Appeal set aside the convictions and ordered a new trial - The trial judge erred in admitting the bad character evidence against the accused and excluding evidence of the previous violent character of the invaders - The court stated that "it is doubtful that this evidence of previous shootings in Yellowknife had any probative value at all", then set out the dangers of admitting this evidence - This was not an appropriate case to apply s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the errors, as the verdict would not necessarily have been the same - The court stated that "the trial judge withheld from 12 lay jurors the dangerous criminal character of the leading home invaders, and all the detailed police and court records of that, while letting the Crown portray the accused to the jurors as a habitual killer because of a casual private conversation, with no police or court records" - See paragraphs 1 to 143.

Criminal Law - Topic 5528

Evidence and witnesses - Evidence respecting the victim - Character of victim - [See Criminal Law - Topic 5449 ].

Cases Noticed:

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R. v. Sims (1994), 87 C.C.C.(3d) 402; 28 C.R.(4th) 231 (B.C.C.A.), refd to. [para. 41].

R. v. Hamilton (D.W.) (2003), 186 B.C.A.C. 282; 306 W.A.C. 282; 180 C.C.C.(3d) 80; 2003 BCCA 490, refd to. [para. 46].

R. v. Morris, [1983] 2 S.C.R. 190; [1984] 2 W.W.R. 1; 48 N.R. 341, refd to. [para. 50].

R. v. Watson (K.S.) (1996), 92 O.A.C. 131; 30 O.R.(3d) 161 (C.A.), refd to. [para. 50].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 50].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321, refd to. [para. 51].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289, refd to. [para. 51].

R. v. Bain, [1992] 1 S.C.R. 91; 133 N.R. 1; 51 O.A.C. 161, refd to. [para. 51].

R. v. Alkadri (1986), 70 A.R. 260 (C.A.), leave to appeal denied (1986), 72 N.R. 367 (S.C.C.), refd to. [para. 54].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 63].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 63].

R. v. Holtam (D.J.) (2002), 168 B.C.A.C. 278; 275 W.A.C. 278; 2002 BCCA 339, refd to. [para. 65].

R. v. J.A.T. (2012), 290 O.A.C. 130; 2012 ONCA 177, refd to. [para. 66].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234, refd to. [para. 67].

R. v. Farrah (C.A.) (2004), 187 O.A.C. 76; 186 C.C.C.(3d) 347 (C.A.), refd to. [para. 68].

R. v. Bryan (L.J.), [2008] O.A.C. Uned. 199; 2008 ONCA 301, refd to. [para. 68].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 68].

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 127 A.R. 89; 20 W.A.C. 89; 73 C.C.C.(3d) 481 (C.A.), revd. [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163, refd to. [para. 68].

R. v. G.C. (1996), 144 Nfld. & P.E.I.R. 204; 451 A.P.R. 204; 110 C.C.C.(3d) 233 (Nfld. C.A.), refd to. [para. 68].

R. v. J.F.A. (1993), 64 O.A.C. 359; 82 C.C.C.(3d) 295 (C.A.), refd to. [para. 68].

R. v. Rose (E.) (2001), 143 O.A.C. 163; 53 O.R.(3d) 417 (C.A.), refd to. [para. 70].

R. v. Bona (K.) (2002), 157 O.A.C. 201 (C.A.), refd to. [para. 80].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 82].

R. v. Patterson (M.A.) (2006), 207 O.A.C. 147; 205 C.C.C.(3d) 171 (C.A.), refd to. [para. 82].

R. v. Sarrazin (R.) et al. [2011] 3 S.C.R. 505; 422 N.R. 214; 284 O.A.C. 170; 2011 SCC 54, refd to. [para. 99].

Brown v. United States of America (1920), 256 U.S. 335, refd to. [para. 101].

R. v. Duke (1985), 62 A.R. 204; 22 C.C.C.(3d) 217 (C.A.), refd to. [para. 119].

R. v. VanEindhoven (A.) (2012), 533 A.R. 38; 557 W.A.C. 38; 2012 NUCA 5, refd to. [para. 119].

R. v. Guarino (J.) et al. (2012), 291 O.A.C. 130; 2012 ONCA 294, refd to. [para. 124].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 126].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 141].

R. v. Naglik, [1993] 3 S.C.R. 122; 157 N.R. 161; 65 O.A.C. 161, refd to. [para. 141].

Shepard v. United States of America (1933), 290 U.S. 96, refd to. [para. 142].

R. v. Bomberry (K.G.) (2010), 267 O.A.C. 235; 258 C.C.C.(3d) 117; 2010 ONCA 542, refd to. [para. 159].

R. v. Roberts (E.W.) (2004), 346 A.R. 325; 320 W.A.C. 325; 2004 ABCA 114, refd to. [para. 162].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 181].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81; 148 D.L.R.(4th) 423, refd to. [para. 182].

R. v. Boulet, [1978] 1 S.C.R. 332; 15 N.R. 541; 75 D.L.R.(3d) 223, refd to. [para. 182].

R. v. Morningchild (L.G.) (2011), 510 A.R. 369; 527 W.A.C. 369; 2011 ABCA 215, refd to. [para. 190].

R. v. Largie (G.) et al. (2010), 266 O.A.C. 103; 101 O.R.(3d) 561; 2010 ONCA 548, refd to. [para. 190].

R. v. J.F. (2011), 276 O.A.C. 292; 105 O.R.(3d) 161; 2011 ONCA 220, refd to. [para. 194].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 198].

R. v. Creighton (D.J.) and Crawford (C.), [1995] 1 S.C.R. 858; 179 N.R. 161; 81 O.A.C. 359, refd to. [para. 199].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 199].

R. v. Mulligan (C.) (1997), 100 O.A.C. 324; 34 O.R.(3d) 212 (C.A.), refd to. [para. 213].

R. v. Grandinetti (C.H.) (2003), 339 A.R. 52; 312 W.A.C. 52; 2003 ABCA 307, affd. [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 2005 SCC 5, refd to. [para. 218].

R. v. Andres (H.H.) (2003), 339 A.R. 334; 312 W.A.C. 334; 2003 ABCA 333, refd to. [para. 218].

Counsel:

D. Littlefield, for the respondent;

J.C. Morton, for the appellant.

This appeal was heard on September 25, 2012, before Côté, Rowbotham and O'Ferrall, JJ.A., of the Nunavut Court of Appeal.

The following memorandum of judgment was filed by the Court on January 28, 2013, including the following opinions:

Côté, J.A. (Rowbotham, J.A., concurring) - see paragraphs 1 to 143;

O'Farrell, J.A., dissenting - see paragraphs 144 to 223.