R. v. Bouchard (S.), (2013) 314 O.A.C. 113 (CA)

• Judge: Doherty, Rouleau and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 26, 2013
• Jurisdiction: Ontario
• Citations: (2013), 314 O.A.C. 113 (CA);2013 ONCA 791

R. v. Bouchard (S.) (2013), 314 O.A.C. 113 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JA.005

Her Majesty the Queen (respondent) v. Sebastien Bouchard (appellant)

(C53244; 2013 ONCA 791)

Indexed As: R. v. Bouchard (S.)

Ontario Court of Appeal

Doherty, Rouleau and Lauwers, JJ.A.

December 31, 2013.

Summary:

The accused was convicted by a jury of second degree murder and was sentenced to imprisonment for life with no eligibility for parole for 15 years. He appealed from the conviction and from the imposition of the 15 year period of parole ineligibility.

The Ontario Court of Appeal, Rouleau, J.A., dissenting, allowed the conviction appeal and ordered a new trial.

Criminal Law - Topic 40

General principles - Provocation - General - The Ontario Court of Appeal discussed the statutory defence of provocation, stating, "That defence serves as a partial excuse, reducing what would otherwise be murder to manslaughter. The defence is said to rest on the law's compassion for human infirmity. People can be pushed to murder. In the very limited circumstances captured by s. 232 [of the Criminal Code], society accepts that provocation will reduce murder to manslaughter... For obvious policy reasons, a partial defence to murder based on the loss of self-control must be narrowly circumscribed. The wrongful act or insult said to have caused the loss of self-control must be sufficient to deprive an ordinary person of self-control. The accused must also have in fact been provoked by the alleged act or insult and, finally, the accused's actions must have been on the sudden before there was time for his or her passion to cool. These three requirements place strict limitations on the availability of the statutory defence of provocation." - See paragraphs 55 and 56.

Criminal Law - Topic 1263

Offences against person and reputation - Murder - General principles - Intention - The accused and the victim were friends who often drank together - In December 2005, they attended a concert and drank heavily - On the way home, the victim, who was gay, kissed the accused and said, "I love you" - The accused beat the victim and left him lying in a ditch - The victim died - The accused was convicted by a jury of second degree murder - On appeal, he asserted that the trial judge failed to adequately review the evidence relevant to the mens rea for murder and failed to relate that evidence, in a meaningful way, to the issues raised by the mens rea requirement - The Ontario Court of Appeal rejected this ground of appeal - The trial judge worked diligently with counsel in the pre-charge instruction to produce an instruction that was comprehensive, comprehensible and satisfactory to both counsel - Counsel had no objections to the final version of the written instructions - The trial judge also gave the jury a lengthy summary of the evidence - The mens rea issue was a simple one - The evidence was far from complicated - The competing positions were obvious and easy to understand - The trial judge could have gone into more detail about the evidence had he been asked to do so - However, his failure to review the evidence in more detail or to specifically relate the details to the mens rea issue did not result in reversible error - See paragraphs 41 to 53.

Criminal Law - Topic 1263

Offences against person and reputation - Murder - General principles - Intention - The accused and the victim were friends who often drank together - In December 2005, they attended a concert and drank heavily - On the way home, the victim, who was gay, kissed the accused and said, "I love you" - The accused beat the victim and left him lying in a ditch - The victim died - The accused was convicted by a jury of second degree murder - On appeal, he asserted that the trial judge had erroneously instructed the jury that the statutory definition of provocation in s. 232 of the Criminal Code applied to the issue of mens rea for murder - The Ontario Court of Appeal allowed the appeal, ordering a new trial - The statutory definition of provocation had no application when considering the impact of a deceased's conduct on an accused's state of mind for the purpose of determining whether the Crown had established the requisite mens rea - To find provocation under s. 232, the jury had to be satisfied that the victim's conduct was sufficient to deprive an ordinary person of self control - However, potentially provocative conduct that failed the ordinary person test still had to be considered by the jury in assessing whether the accused had the necessary mens rea - In that context, the accused's intoxication could support his claim that the victim's conduct caused him to act without regard to the consequences and without the necessary mens rea - The trial judge here did tell the jury that the narrow statutory definition of provocation applied in assessing the impact of the victim's allegedly provocative conduct on the accused's mens rea - This constituted misdirection - There was no objection to this part of the instruction - However, an error in law was an error in law regardless of counsel's position - The misdirection could well have eliminated an important part of the accused's evidence from the jury's consideration on the mens rea issue - The Crown's case was not overwhelming - The curative proviso could not be applied - See paragraphs 54 to 72.

Criminal Law - Topic 1265.2

Offences against person and reputation - Murder - General principles - Jury charge - Second degree murder - [See both Criminal Law - Topic 1263 ].

Criminal Law - Topic 1280

Offences against person and reputation - Murder - Provocation - General principles - [See Criminal Law - Topic 40 ].

Criminal Law - Topic 1285

Offences against person and reputation - Murder - Provocation - Jury charge - [See second Criminal Law - Topic 1263 ].

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge (incl. intent and drunkenness) - [See second Criminal Law - Topic 1263 ].

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - [See first Criminal Law - Topic 1263 ].

Criminal Law - Topic 4356

Procedure - Charge or directions - Jury or judge alone - Directions regarding intent or mens rea - [See both Criminal Law - Topic 1263 ].

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - [See second Criminal Law - Topic 1263 ].

Criminal Law - Topic 4378

Procedure - Charge or directions - Jury or judge alone - Judicial review of - The Ontario Court of Appeal discussed the "functional approach to assessing the adequacy of jury instruction" - The instruction was examined in the context of the trial in which it was given - The contextual approach had become more significant in light of the way in which jury instructions were now commonly prepared and delivered - In most longer cases, they were usually the product of extensive pre-charge discussions in which counsel had a full opportunity to set out their positions - When the instructions were consistent with the instructions worked out in the pre-charge conference and counsel had no objections after the charge was delivered, counsel's silence could be said to indicate satisfaction with the instructions - This did not mean that the defence position at trial foreclosed argument regarding the instructions on appeal - However, the fact that the accused's counsel had a full opportunity to participate in constructing the instruction had to be a significant factor in assessing the instruction's adequacy - See paragraphs 34 to 40.

Criminal Law - Topic 4382

Procedure - Charge or directions - Jury or judge alone - Misdirection - What constitutes - [See second Criminal Law - Topic 1263 ].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See both Criminal Law - Topic 1263 and Criminal Law - Topic 4378 ].

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See second Criminal Law - Topic 1263 ].

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where directions or jury charge incomplete or in error - [See second Criminal Law - Topic 1263 ].

Cases Noticed:

R. v. Almarales (A.) (2008), 244 O.A.C. 127; 237 C.C.C.(3d) 148; 2008 ONCA 692, refd to. [para. 34].

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, refd to. [para. 35].

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, refd to. [para. 35].

R. v. Minor (M.) (2013), 309 O.A.C. 376; 2013 ONCA 557, refd to. [para. 35].

R. v. Yumnu (I.) (2010), 269 O.A.C. 48; 260 C.C.C.(3d) 421; 2010 ONCA 637, refd to. [para. 46].

R. v. Henry (D.B.) et al. (2003), 186 B.C.A.C. 106; 306 W.A.C. 106; 179 C.C.C.(3d) 307 (C.A.), refd to. [para. 46].

R. v. Hill, [1986] 1 S.C.R. 313; 68 N.R. 161; 17 O.A.C. 33; 25 C.C.C.(3d) 322, refd to. [para. 55].

R. v. Flores (M.R.) (2011), 274 O.A.C. 314; 269 C.C.C.(3d) 194; 2011 ONCA 155, refd to. [para. 60].

R. v. Jaw (S.G.), [2009] 3 S.C.R. 26; 393 N.R. 246; 464 A.R. 149; 467 W.A.C. 149; 2009 SCC 42, refd to. [para. 71].

R. v. Emms (J.) (2010), 272 O.A.C. 248; 2010 ONCA 817, refd to. [para. 92].

R. v. Puddicombe (N.) (2013), 308 O.A.C. 70; 2013 ONCA 506, refd to. [para. 92].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 92].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 92].

Counsel:

Howard L. Krongold, for the appellant;

Benita Wassenaar, for the respondent.

This appeal was heard on September 26, 2013, by Doherty, Rouleau and Lauwers, JJ.A., of the Ontario Court of Appeal. On December 31, 2013, the court's judgment was released, including the following opinions:

Doherty, J.A. (Lauwers, J.A., concurring) - see paragraphs 1 to 73;

Rouleau, J.A., dissenting - see paragraphs 74 to 104.