R. v. Briscoe (M.E.) et al., (2009) 446 A.R. 106 (CA)

• Judge: Berger, Slatter and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 06, 2009
• Citations: (2009), 446 A.R. 106 (CA);2009 ABCA 7

R. v. Briscoe (M.E.) (2009), 446 A.R. 106 (CA);

      442 W.A.C. 106

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JA.113

Her Majesty The Queen (respondent) v. Joseph Wesley Laboucan (appellant)

(0703-0107-A; 2009 ABCA 7)

Indexed As: R. v. Briscoe (M.E.) et al.

Alberta Court of Appeal

Berger, Slatter and Rowbotham, JJ.A.

January 6, 2009.

Summary:

A missing 13 year old girl was found dead on a golf course. She had been badly beaten and sexually assaulted. The accused (Briscoe and Laboucan) were charged with first degree murder, aggravated sexual assault and kidnapping. Three youths were also charged. One pleaded guilty. The other two were awaiting trial in the Provincial Court.

The Alberta Court of Queen's Bench, in a judgment reported (2007), 413 A.R. 53, found Laboucan guilty of aggravated sexual assault, kidnapping and first degree murder. The first degree murder conviction was based on a planned and deliberate murder or, alternatively, on the basis that the girl was murdered during the commission of an aggravated sexual assault and kidnapping, both offences listed in s. 231(5) of the Criminal Code. The Crown failed to prove beyond a reasonable doubt that Briscoe was guilty of any of the offences as a principal offender or as a party to the offences by aiding and abetting. Laboucan was convicted of first degree murder and the remaining two offences were conditionally stayed under the Kienapple principle. Laboucan appealed.

The Alberta Court of Appeal, Rowbotham, J.A., dissenting, allowed the appeal and ordered a new trial. The trial judge's rejection of Laboucan's credibility, partly on the basis that an accused had a motive to be untruthful because of his interest in an acquittal constituted a fatal error that reversed the burden of proof or the presumption of innocence. The court declined to invoke s. 686(1)(b)(iii) to dismiss the appeal notwithstanding the error, because the verdict would not necessarily have been the same but for the error.

Civil Rights - Topic 4947

Presumption of innocence - Evidence and proof - Inferences - Criminal cases - [See first Evidence - Topic 4732 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - [See first Evidence - Topic 4732 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See first Evidence - Topic 4732 ].

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 first Evidence - Topic 4732 ].

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - [See both Evidence - Topic 4732 ].

Evidence - Topic 4732

Witnesses - Examination - Impeaching credibility - Motive for untruthfulness - The accused was found guilty of first degree murder, aggravated sexual assault and kidnapping - The trial judge found that a 13 year old girl was lured under false pretences to a remote location, where she was confined, raped and then brutally beaten to death by the accused and a youth who earlier pleaded guilty - The first degree murder conviction was based on a planned and deliberate murder or, alternatively, on the basis that the girl was murdered during the commission of an aggravated sexual assault and kidnapping (Criminal Code, s. 231(5)) - The accused testified to being present, but denied involvement - He claimed that others falsely implicated him for various reasons - One of the trial judge's stated reasons for expressly disbelieving the accused was the "very great motive to be untruthful given the consequences of being convicted of the offences charged" - The Alberta Court of Appeal stated that although an accused's motive in testifying was not invariably irrelevant, "a motive to be untruthful cannot be attributed to the accused solely because of his status as an accused" - Assuming that an accused would lie to secure an acquittal simply because his interest in the outcome dictated that course of action undermined the presumption of innocence and the fairness of the trial - The court stated that "it is illogical to draw an inference of guilt from the giving of exculpatory evidence, because both the guilty accused and the innocent accused will give such evidence" - The trial judge's subsequent self-direction on the burden of proof and the presumption of innocence did not cure the fatal error - The reference to having a motive to lie, simply because of his status as an accused, was not a passing comment that did not affect the trial judge's reasoning in rejecting the accused's testimony as not credible - The court declined to apply the curative provisions of s. 686(1)(b)(iii) of the Criminal Code - The error was at the core of the R. v. D.W. analysis on reasonable doubt and the burden of proof - It could not be said that but for the error the verdict would have been the same - See paragraphs 1 to 32.

Evidence - Topic 4732

Witnesses - Examination - Impeaching credibility - Motive for untruthfulness - The Alberta Court of Appeal stated that "experience and common sense tell us that a witness who is also a party to the litigation will generally have an interest in the outcome of the case, and that interest may affect the witness's evidence, subconsciously, consciously or deliberately. The motivation of an ordinary witness is relevant and may always be considered ... In some cases the motive of the accused as a witness will arise from the evidence, or the positions of the Crown or co-accuseds, or from the position of the defence. By way of illustration, the desire on the part of any witness to protect a family member or a close friend, or the desire of any witness to enrich himself is a relevant consideration that applies equally to an accused provided that there is evidence suggestive of such a motivation. In such cases references to the motivation of the accused in the reasons for decision or the charge to the jury may be unavoidable. Therefore, it cannot be said that the motive of an accused who testifies is invariably irrelevant; not every reference to an accused's motivation in testifying will be fatal. However, a motive to be untruthful cannot be attributed to the accused solely because of his status as an accused, but should be grounded in the record." - See paragraph 11.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 9].

R. v. McDonald (R.J.) (2007), 412 A.R. 188; 404 W.A.C. 188; 72 Alta. L.R.(4th) 18; 2007 ABCA 53, refd to. [para. 11].

R. v. Poitras (J.P.) (2002), 154 O.A.C. 25; 57 O.R.(3d) 538; 1 C.R.(6th) 366 (C.A.), refd to. [para. 12].

R. v. Zurmati (L.M.), [1993] O.J. No. 1520 (C.A.), refd to. [para. 12].

R. v. L.B. (1993), 64 O.A.C. 15; 13 O.R.(3d) 796; 82 C.C.C.(3d) 189 (C.A.), refd to. [para. 12].

R. v. G.F.P. (1994), 70 O.A.C. 350; 89 C.C.C.(3d) 176 (C.A.), refd to. [para. 12].

R. v. Fabian (1994), 23 W.C.B.(2d) 456 (Ont. C.A.), refd to. [para. 12].

R. v. Robinson (1991), 65 A.L.J.R. 644, refd to. [para. 16].

R. v. S.D. (2007), 222 O.A.C. 218; 218 C.C.C.(3d) 323 (C.A.), refd to. [para. 18].

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, refd to. [para. 24].

R. v. Mulligan (C.) (1997), 100 O.A.C. 324; 115 C.C.C.(3d) 559 (C.A.), refd to. [para. 25].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281, refd to. [para. 26].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1, refd to. [para. 31].

R. v. C.S.M. (2004), 223 N.S.R.(2d) 311; 705 A.P.R. 311; 185 C.C.C.(3d) 471 (C.A.), refd to. [para. 31].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 31].

R. v. Sanghi (1971), 3 N.S.R.(2d) 70; 6 C.C.C.(2d) 123 (C.A.), refd to. [para. 31].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 35].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355, refd to. [para. 35].

R. v. Parnell (G.) (1995), 59 B.C.A.C. 291; 98 W.A.C. 291 (C.A.), refd to. [para. 39].

R. v. Silverquill (D.B.) (1999), 121 B.C.A.C. 126; 198 W.A.C. 126; 41 W.C.B.(2d) 298 (C.A.), refd to. [para. 44].

R. v. Khuc (T.A.) et al. (2000), 132 B.C.A.C. 139; 215 W.A.C. 139; 142 C.C.C.(3d) 276; 2000 BCCA 20, refd to. [para. 45].

R. v. Vetrovec; R. v. Gaja (1982), 41 N.R. 606; 67 C.C.C.(2d) 1 (S.C.C.), refd to. [para. 49].

Counsel:

A.R. Schlayer, for the respondent;

L.K. Stevens, Q.C., for the appellant.

This appeal was heard on June 5, 2008, before Berger, Slatter and Rowbotham, JJ.A., of the Alberta Court of Appeal.

On January 6, 2009, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Berger and Slatter, JJ.A. - see paragraphs 1 to 32;

Rowbotham, J.A., dissenting - see paragraphs 33 to 63.