R. v. Boucher (D.E.) et al., (2011) 310 B.C.A.C. 273 (YukCA)

JudgeRowles, Frankel and Bennett, JJ.A.
CourtCourt of Appeal (Yukon Territory)
Case DateSeptember 23, 2011
JurisdictionYukon
Citations(2011), 310 B.C.A.C. 273 (YukCA);2011 YKCA 7

R. v. Boucher (D.E.) (2011), 310 B.C.A.C. 273 (YukCA);

    526 W.A.C. 273

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. SE.015

Regina (respondent) v. Mark Lewis Lange (appellant)

(YU0569)

Regina (respondent) v. Dean Ernest Boucher also known as Johns (appellant)

(YU0570; 2011 YKCA 7)

Indexed As: R. v. Boucher (D.E.) et al.

Yukon Court of Appeal

Rowles, Frankel and Bennett, JJ.A.

September 23, 2011.

Summary:

The two accused were charged with second degree murder in the beating death of the victim. They were tried jointly and were convicted by the jury.

The Yukon Court of Appeal allowed the accused's appeals from conviction due to flaws in the jury charge and recharge and ordered a new trial.

Criminal Law - Topic 113

General principles - Mental disorder - Insanity, automatism, etc. - Intoxication - The two accused were charged with second degree murder in the beating death of the victim - They were tried jointly and were convicted by the jury - The Yukon Court of Appeal allowed the accused's appeals from conviction due to flaws in the jury charge and recharge and ordered a new trial - There was an evidentiary foundation on which to leave the defence of intoxication with the jury and the trial judge did so - However, there were two errors that required a new trial - First, the inquiry into the mens rea for murder was whether the accused foresaw that the likely consequence of his actions was the death of the victim - Thus, in some form, the jury had to be told that it must consider the effect of the consumption of alcohol by the accused in deciding whether the accused foresaw the likely consequences - In the instruction on intoxication, the trial judge failed to include the essential element "knew was likely" - Thus, the trial judge overlooked the key element of foresight of consequences - Second, in failing to break down the potential modes of participation (i.e., as principal, co-principal, aider, abetter, etc.), the trial judge overlooked instructing the jury regarding the effect of intoxication on whether each accused foresaw the consequences of the other's acts - These were fatal flaws in the charge - See paragraphs 56 to 70.

Criminal Law - Topic 137

General principles - Rights of accused - Right to cross-examine - The two accused were charged with second degree murder in the beating death of the victim - They were tried jointly and were convicted by the jury - The Yukon Court of Appeal allowed the accused's appeals from conviction due to flaws in the jury charge and recharge and ordered a new trial - Other grounds of appeal included the use of evidence of bad character of both accused and, specifically, whether a co-accused had to establish some basis for cross-examining another co-accused on prior acts of bad character - The court stated, "When there are joint trials and 'cut-throat' defences, the trial judge has to weigh the fair trial rights of both accused. It may be necessary to hold a voir dire to determine whether the questions are proper in the sense that they are being asked in good faith and are relevant. If the questions cannot be asked without depriving the co-accused of a fair trial, despite a full and complete instruction to the jury limiting the use of the evidence, then the judge will have to consider severance of the accused." - See paragraphs 71 to 73.

Criminal Law - Topic 1265.2

Offences against person and reputation - Murder - General principles - Jury charge - Second degree murder - The two accused were charged with second degree murder in the beating death of the victim - They were tried jointly and were convicted by the jury - The Yukon Court of Appeal allowed the accused's appeals from conviction due to flaws in the jury charge and recharge and ordered a new trial - The trial judge instructed the jury on the party provisions in the Criminal Code prior to instructing the jury on the elements of the offence - The party instruction in relation to "common purpose" under s. 21(2) of the Code conflated the offence of murder with manslaughter - The jury needed to be instructed on the route to murder or manslaughter as a party separately, as the mens rea was quite different for each - Further, the trial judge did not specifically address how one accused could be a principal in the murder offence, while the other could only have the mens rea for manslaughter - See paragraphs 27 to 32.

Criminal Law - Topic 1265.2

Offences against person and reputation - Murder - General principles - Jury charge - Second degree murder - The two accused were charged with second degree murder in the beating death of the victim - They were tried jointly and were convicted by the jury - The Yukon Court of Appeal allowed the accused's appeals from conviction due to flaws in the jury charge and recharge and ordered a new trial - The trial judge did not instruct the jury on the mens rea for manslaughter - Mens rea was particularly relevant where, as here, one accused could be found guilty of murder while the other could be found guilty of manslaughter (or acquitted) - There was a danger that the jury could find one or both appellants guilty of murder when one or both had only the state of mind required for manslaughter - Where death was caused by a beating, the question of foreseeability of death (the mens rea for murder) versus the reasonable foreseeability of the risk of bodily harm (the mens rea for manslaughter) took on some importance - See paragraphs 33 to 35.

Criminal Law - Topic 1265.2

Offences against person and reputation - Murder - General principles - Jury charge - Second degree murder - The two accused were charged with second degree murder in the beating death of the victim - They were tried jointly and were convicted by the jury - The Yukon Court of Appeal allowed the accused's appeals from conviction due to flaws in the jury charge and recharge and ordered a new trial - The jury was not instructed on the potential liability of the accused for manslaughter through the party provisions or that they could find one accused guilty of manslaughter and one guilty of murder - The trial judge did leave the verdict of manslaughter with the jury for both accused - However, he did not clearly set out what the Crown was required to prove in order to find manslaughter - In fact, the instructions could have led the jury to incorrectly find guilt for murder - Further, in answer to a question from the jury and in recharging, the trial judge conflated murder and manslaughter, which was not only confusing, but might have led the jury to convict one of the accused of murder when his state of mind could only amount to manslaughter - Finally, the recharge failed to specifically address the jury's question - A jury question had to be "clearly, correctly and comprehensively" answered - This was not done - See paragraphs 36 to 55.

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge (incl. intent and drunkenness) - [See Criminal Law - Topic 113 ].

Criminal Law - Topic 1314

Offences against person and reputation - Manslaughter - Jury charge - [See all Criminal Law - Topic 1265.2 ].

Criminal Law - Topic 2759

Attempts, conspiracies, accessories and parties - Parties to offences - Jury charge - [See first and third Criminal Law - Topic 1265.2 ].

Criminal Law - Topic 4356

Procedure - Charge or directions - Jury or judge alone - Directions regarding intent or mens rea - [See Criminal Law - Topic 113 and first and second Criminal Law - Topic 1265.2 ].

Criminal Law - Topic 4391.2

Procedure - Charge or directions - Jury or judge alone - Directions following questions by jury - [See third Criminal Law - Topic 1265.2 ].

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See Criminal Law - Topic 113 and all Criminal Law - Topic 1265.2 ].

Criminal Law - Topic 5436

Evidence and witnesses - Cross-examination of accused - Character of accused - [See Criminal Law - Topic 137 ].

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - [See Criminal Law - Topic 137 ].

Cases Noticed:

R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321, refd to. [para. 33].

R. v. Jackson and Davy, [1993] 4 S.C.R. 573; 162 N.R. 113; 68 O.A.C. 161, refd to. [para. 36].

R. v. Briscoe (M.E.) et al. (2010), 400 N.R. 216; 477 A.R. 86; 2010 SCC 13, refd to. [para. 46].

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. 53].

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. 54].

R. v. W.J.D. (2007), 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 58].

R. v. Kahnapace (M.M.) (2010), 287 B.C.A.C. 67; 485 W.A.C. 67; 2010 BCCA 227, refd to. [para. 61].

R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074; 101 N.R. 108; 102 A.R. 186, refd to. [para. 63].

R. v. Lyttle (M.G.) (2004), 316 N.R. 52; 184 O.A.C. 1; 2004 SCC 5, refd to. [para. 72].

Counsel:

K. Wenckebach, for the appellant, Mark Lange;

The appellant, Dean Boucher, appeared in person;

R. Fowler and J. Cunningham Amicus Curiae;

D. McWhinnie, for the respondent.

This appeal was heard at Whitehorse, Yukon Territory, on May 16 and 17, 2011, by Rowles, Frankel and Bennett, JJ.A., of the Yukon Court of Appeal. On September 23, 2011, at Vancouver, British Columbia, Bennett, J.A., in Chambers, delivered the following reasons for judgment for the court.

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2 practice notes
  • R. v. Brincheski (K.D.), (2016) 330 Man.R.(2d) 186 (CA)
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • February 8, 2016
    ...review of the lengthy submissions shows that Brincheski's counsel drew the Court's attention to the case of R. v. Boucher (D.E.) et al. , 2011 YKCA 7, 310 B.C.A.C. 273. That case states that, in circumstances where a cut-throat defence is raised, it may be necessary to hold a voir dire to d......
  • R. v. Crowchild (I.P.), [2011] A.R. Uned. 718 (PC)
    • Canada
    • Provincial Court of Alberta (Canada)
    • October 11, 2011
    ...principal in the commission of the offence and the aider knew that the principal intended to commit the crime. (as stated in R. v. Lange , 2011 YKCA 7) [33] Reproduced in part as follows is Briscoe , supra , paras. 16-18: The mens rea requirement reflected in the word "purpose" under s. 21(......
2 cases
  • R. v. Brincheski (K.D.), (2016) 330 Man.R.(2d) 186 (CA)
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • February 8, 2016
    ...review of the lengthy submissions shows that Brincheski's counsel drew the Court's attention to the case of R. v. Boucher (D.E.) et al. , 2011 YKCA 7, 310 B.C.A.C. 273. That case states that, in circumstances where a cut-throat defence is raised, it may be necessary to hold a voir dire to d......
  • R. v. Crowchild (I.P.), [2011] A.R. Uned. 718 (PC)
    • Canada
    • Provincial Court of Alberta (Canada)
    • October 11, 2011
    ...principal in the commission of the offence and the aider knew that the principal intended to commit the crime. (as stated in R. v. Lange , 2011 YKCA 7) [33] Reproduced in part as follows is Briscoe , supra , paras. 16-18: The mens rea requirement reflected in the word "purpose" under s. 21(......

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