R. v. Bitternose (Q.L.), (2009) 331 Sask.R. 19 (CA)

• Judge: Cameron, Sherstobitoff and Wilkinson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: April 08, 2008
• Jurisdiction: Saskatchewan
• Citations: (2009), 331 Sask.R. 19 (CA);2009 SKCA 54

R. v. Bitternose (Q.L.) (2009), 331 Sask.R. 19 (CA);

    460 W.A.C. 19

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. MY.015

Her Majesty the Queen (respondent) v. Quinton Lloyd Bitternose (appellant)

(No. 1215; 2009 SKCA 54)

Indexed As: R. v. Bitternose (Q.L.)

Saskatchewan Court of Appeal

Cameron, Sherstobitoff and Wilkinson, JJ.A.

May 7, 2009.

Summary:

The accused was convicted of first degree murder and sentenced to life imprisonment without parole eligibility for a period of 25 years. The accused appealed his conviction.

The Saskatchewan Court of Appeal dismissed the appeal.

Civil Rights - Topic 3137

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to be present at trial - The accused was charged with first degree murder - Mid-trial, the accused was removed from the courtroom after he launched into an objection that the jury was not impartial, and refused to comply when the trial judge instructed him to sit down - For the rest of the day the accused observed the proceedings from a separate room with an audio-visual link to the courtroom - The jury found the accused guilty - The accused appealed, asserting that the trial judge erred in ordering the removal of the accused from the courtroom during the course of the trial and proceeding with the trial in the accused's absence - The Saskatchewan Court of Appeal dismissed the appeal - The accused's removal from the courtroom was well within the parameters of s. 650(2)(a) of the Criminal Code (the trial judge was entitled to maintain the authority and dignity of the court) - The accused misconducted himself - He interrupted the proceedings with inappropriate objections that had been dealt with once before by the trial judge - He was given a simple and straightforward choice to sit down or be taken out - He chose to be removed - His continued presence in the courtroom was not feasible given the nature of the complaint he wished to resurrect concerning racial bias on the part of the jury, and his refusal to desist from making it - His rights were fully protected during his physical absence - The accused had the full means and opportunity to acquire direct knowledge of the proceedings in all matters affecting his vital interests - In these circumstances, there was no breach of s. 650 of the Code (accused to be present at trial), or of the accused's Charter rights under ss. 7 or 11(d) - See paragraphs 40 to 97 and 108.

Civil Rights - Topic 3137

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to be present at trial - The accused was charged with first degree murder - Mid-trial, the accused was removed from the courtroom after he launched into an objection that the jury was not impartial, and refused to comply when the trial judge instructed him to sit down - For the rest of the day the accused observed the proceedings from a separate room with an audio-visual link to the courtroom - The accused returned of his own accord the following day, but sometime later refused to remain present, and observed the proceedings by audio-visual link for the remainder of the trial - The jury found the accused guilty - The accused appealed, asserting that the trial judge erred in proceeding with the trial in the accused's absence on the basis that the accused had intermittently waived his right to be present - The Saskatchewan Court of Appeal dismissed the appeal - It was the accused that maintained that his presence and participation at trial could not be compelled - His second absence from the courtroom was entirely the product of his own decision to withdraw from any participation in the proceedings - The accused was offered full and fair opportunity to exercise his rights but failed to reasonably pursue them and ultimately withdrew from participation at the trial - See paragraphs 98 to 108.

Civil Rights - Topic 4656

Right to counsel - Entitlement - Criminal cases - The accused was charged with first degree murder - In the months leading up to trial, the accused fired two lawyers - He was warned that the trial would proceed as scheduled, and told to find a replacement as soon as possible - The accused refused Legal Aid representation - He refused his first lawyer's offer to step back in and conduct the trial - Three days before trial, the accused decided to re-engage his second lawyer but only on the condition the trial would be adjourned - In the interval, the court appointed an amicus curiae to lend assistance in the presentation of the accused's defence - The accused's adjournment request was denied - The jury found the accused guilty - The accused appealed, asserting that the trial judge erred in requiring the accused to proceed to trial without counsel and in not allowing the accused an adjournment of the trial - The Saskatchewan Court of Appeal dismissed the appeal - The accused's uncompromising refusal of assistance reinforced the lurking doubt about the sincerity of his desire to engage counsel - He found insufficient motivation in the forthcoming weeks to retain the second lawyer - In firing her scant three weeks after she took carriage of the file, the accused simply offered the same excuse he had in the past - Moreover, the accused was willing to employ the services of the amicus curiae, when it suited his purposes, and vilify the arrangement when it did not - Despite the seriousness of the charge, the trial judge did not err in the exercise of his discretion to refuse an adjournment - The accused's dilatory efforts to retain counsel explained the absence of counsel at trial, and had he retained a lawyer he had confidence in and applied for an adjournment on a timely basis, he would not have been in the predicament he landed in - Instead, he had delayed for several months, until witnesses had again been subpoenaed and an adjournment would have caused further inconvenience - See paragraphs 5 to 39.

Criminal Law - Topic 127

General principles - Rights of accused - Right to be present at trial - [See both Civil Rights - Topic 3137 ].

Criminal Law - Topic 127

General principles - Rights of accused - Right to be present at trial - The accused was charged with first degree murder - In the months leading up to trial, the accused fired two lawyers - He was warned that the trial would proceed as scheduled, and told to find a replacement as soon as possible - The accused refused Legal Aid representation - He refused his first lawyer's offer to step back in and conduct the trial - Three days before trial, the accused decided to re-engage his second lawyer but only on the condition the trial would be adjourned - In the interval, the court appointed an amicus curiae to lend assistance in the presentation of the accused's defence - The accused's adjournment request was denied - The jury convicted the accused - The accused appealed, asserting that the trial judge erred in dealing with trial evidentiary matters (two photographs) at a pre-trial conference in the accused's absence - The Saskatchewan Court of Appeal dismissed the appeal - Discussions related to evidence that should or should not be tendered at trial did engage an accused person's vital interests - It was a discussion the accused was excluded from entirely, and it was not relayed to him when he joined the pre-trial conference - However, any irregularity arising from the accused's absence was entirely inadvertent - The two photographs were excluded where the court was concerned that they were inflammatory and potentially prejudicial to the accused - There was no reasonable possibility the outcome of the trial would have been different had the error not been made - The court applied the curative proviso in s. 686(1)(b)(iv) of the Criminal Code - See paragraphs 110 to 118.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented - [See Criminal Law - Topic 4312 ].

Criminal Law - Topic 4312

Procedure - Jury - General - Impartiality - The aboriginal accused was charged with first degree murder - The accused, who was self-represented, was concerned that he would not receive a fair and impartial hearing before an "all-white" jury - The trial judge put a series of inquiries to the jury panel, including: "The accused ... is of Native or Aboriginal heritage. Many of the witnesses, I'm advised, are also of Native or Aboriginal heritage, as is the victim referred to in the indictment. Is there anyone on the jury panel who holds a bias against Native and/or Aboriginal people to the extent that he or she would not be able to reach a decision based solely on the evidence led at trial and nothing else?" - The jury convicted the accused - The accused appealed, asserting that the trial judge erred in not providing an explanation to the accused regarding his right to question prospective jurors for cause on the grounds they might not be impartial - The Saskatchewan Court of Appeal dismissed the appeal - During the process of jury selection, the accused only exercised 6 of his 20 peremptory challenges - Thus, even if a failure to sufficiently explain the process of challenging jurors for cause had constituted error, the potential for prejudice was minuscule given that the accused had 14 peremptory challenges that went unexercised - Moreover, the accused premised his whole conception of unfairness on the assumption that there were no members of First Nations ancestry on the jury, an assumption that was factually flawed - It had long been recognized that a jury of one's peers did not mean that the jury, or a certain proportion of the jury members, had to be of the same racial ancestry as the accused - Further, an appellate court would not interfere with a trial judge's discretionary decision to limit the inquiry on racial impartiality to a single, rolled up question - See paragraphs 119 to 129.

Criminal Law - Topic 4313

Procedure - Jury - General - Questioning of prospective jurors - [See Criminal Law - Topic 4312 ].

Criminal Law - Topic 4316

Procedure - Jury - General - Challenges for cause - [See Criminal Law - Topic 4312 ].

Criminal Law - Topic 4353

Procedure - Charge or directions - Jury or judge alone - Directions regarding corroboration - The accused and five other individuals were charged with first degree murder - The victim was forcibly removed from his residence and placed in the trunk of a vehicle, where he was shot twice and confined for several hours as he bled to death - The vehicle was set afire and abandoned - The Crown's theory was that the accused had orchestrated the killing in retaliation after the victim broke into the accused's home to try and steal drugs from him - The Crown asserted that the accused had delivered the fatal shot to the victim's abdomen - A pathologist testified that the gunshot wound in the victim's abdominal area was the cause of death - Nippi testified that the accused fired one shot into the victim's lower body while he was confined in the trunk of the vehicle - The jury convicted the accused - The accused appealed, asserting that the trial judge erred in instructing the jury on the issue of corroboration regarding Nippi's evidence - The accused argued that the pathologist's evidence could not amount to corroboration of Nippi's evidence as nothing in the pathologist's evidence spoke to the author of the gunshot, only to the fact that such a shot had occurred - The Saskatchewan Court of Appeal dismissed the appeal - Confirmatory evidence had to give comfort that the witness was truthful in relevant aspects of his account - Nippi observed that the accused shot low, and Southwind, who fired the second shot, aimed high - The pathologist confirmed two gunshot wounds, both of which conformed with evidence given by Nippi and was capable of giving comfort that he was truthful in this aspect of his account - In any event, there was a wealth of confirmatory evidence from independent sources on a significant number of other material aspects in Nippi's evidence that was capable of providing comfort he was being truthful in his account - See paragraphs 130 to 136.

Criminal Law - Topic 5038

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Procedural error - [See second Criminal Law - Topic 127 ].

Criminal Law - Topic 5039

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Effect of error by trial judge - General - [See second Criminal Law - Topic 127 ].

Cases Noticed:

R. v. Peepeetch (K.D.) (2003), 238 Sask.R. 14; 305 W.A.C. 14; 177 C.C.C.(3d) 77; 2003 SKCA 76, leave to appeal dismissed (2004), 328 N.R. 392; 262 Sask.R. 170; 347 W.A.C. 170 (S.C.C.), refd to. [para. 22, footnote 4].

R. v. Beals (E.W.) (1993), 126 N.S.R.(2d) 130; 352 A.P.R. 130 (C.A.), consd. [para. 27].

R. v. Moosomin (L.W.), [2009] 1 W.W.R. 577; 320 Sask.R. 74; 444 W.A.C. 74; 2008 SKCA 168, refd to. [para. 27].

R. v. Hazlewood (G.A.) et al. (1994), 42 B.C.A.C. 44; 67 W.A.C. 44 (C.A.), refd to. [para. 29, footnote 7].

R. v. Phillips (M.A.) (2003), 320 A.R. 172; 288 W.A.C. 172; 172 C.C.C.(3d) 285; 2003 ABCA 4, refd to. [para. 39, footnote 8].

R. v. McGibbon (1988), 31 O.A.C. 10; 45 C.C.C.(3d) 334 (C.A.), refd to. [para. 39, footnote 9].

R. v. Zarubin (G.), [2001] Sask.R. Uned. 9; 157 C.C.C.(3d) 115; 2001 SKCA 1, refd to. [para. 66, footnote 14].

R. v. Fabrikant (V.) (1995), 67 Q.A.C. 268; 97 C.C.C.(3d) 544 (C.A.), consd. [para. 71, footnote 15].

Illinois v. Allen (1970), 397 U.S. 337, refd to. [para. 71, footnote 16].

Badger v. Cardwell (1978), 587 F.2d 968 (9th Cir.), refd to. [para. 72, footnote 17].

R. v. Arradi (Z.), [2003] 1 S.C.R. 280; 302 N.R. 367; 2003 SCC 23, consd. [para. 74, footnote 19].

R. v. Meunier, [1966] Que. Q.B. 94; 48 C.R. 14, affd. [1966] S.C.R. 399, refd to. [para. 78, footnote 20].

R. v. Hertrich, Stewart and Skinner (1982), 67 C.C.C.(2d) 510; 137 D.L.R.(3d) 400 (Ont. C.A.), refd to. [para. 79, footnote 21].

R. v. Joinson (1986), 32 C.C.C.(3d) 542 (B.C.C.A.), consd. [para. 81, footnote 22].

R. v. Cloutier (1988), 27 O.A.C. 246; 43 C.C.C.(3d) 35 (C.A.), leave to appeal refused (1989), 104 N.R. 160; 37 O.A.C. 320; 50 C.C.C.(3d) vi (S.C.C.), consd. [para. 83, footnote 23].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, consd. [para. 83, footnote 24].

R. v. Czuczman (1986), 12 O.A.C. 231; 27 D.L.R.(4th) 694; 26 C.C.C.(3d) 43 (C.A.), consd. [para. 87, footnote 25].

R. v. Sharp (T.P.) (2004), 197 B.C.A.C. 145; 323 W.A.C. 145; 2004 YKCA 6, consd. [para. 90, footnote 27].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258, consd. [para. 91, footnote 28].

R. v. Burke (H.P.) (2001), 153 C.C.C.(3d) 97 (Ont. C.A.), affd. [2002] 2 S.C.R. 857; 290 N.R. 71; 160 O.A.C. 271; 164 C.C.C.(3d) 385, refd to. [para. 93, footnote 30].

R. v. A.W.C. (2005), 367 A.R. 50; 346 W.A.C. 50; 2005 ABCA 96, dist. [para. 95, footnote 31].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 96, footnote 32].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 96, footnote 33].

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1; 2000 SCC 29, consd. [para. 105, footnote 34].

R. v. Stinchcombe, [1995] 1 S.C.R. 754; 178 N.R. 157; 162 A.R. 269, refd to. [para. 105, footnote 35].

R. v. L.W.T. (2008), 307 Sask.R. 246; 417 W.A.C. 246; 230 C.C.C.(3d) 220; 2008 SKCA 17, refd to. [para. 112, footnote 38].

R. v. W.W. and L.W. (1995), 84 O.A.C. 241; 100 C.C.C.(3d) 225; 25 O.R.(3d) 161 (C.A.), refd to. [para. 113, footnote 39].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193, refd to. [para. 113, footnote 40].

R. v. Laws (D.) (1998), 112 O.A.C. 353; 128 C.C.C.(3d) 516 (C.A.), dist. [para. 117, footnote 41].

R. v. Gayle (C.) (2001), 145 O.A.C. 115; 154 C.C.C.(3d) 221; 54 O.R.(3d) 36 (C.A.), refd to. [para. 127, footnote 48].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 130, footnote 49].

R. v. Kehler (R.A.), [2004] 1 S.C.R. 328; 317 N.R. 30; 346 A.R. 19; 320 W.A.C. 19; 2004 SCC 11, refd to. [para. 134, footnote 51].

R. v. Khela (G.S.) (2009), 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 134, footnote 52].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 650 [para. 62].

Counsel:

Anthony B. Gerein, for the Crown;

Timothy J. Brown, for the appellant.

This appeal was heard on April 8, 2008, by Cameron, Sherstobitoff and Wilkinson, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Wilkinson, J.A., on May 7, 2009.