R. v. Charlebois (P.), 2000 SCC 53

• Judge: Gonthier, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 10, 2000
• Jurisdiction: Canada (Federal)
• Citations: 2000 SCC 53;(2000), 261 N.R. 239 (SCC);148 CCC (3d) 449;261 NR 239;[2000] SCJ No 55 (QL);[2000] 2 SCR 674;192 DLR (4th) 1;[2000] CarswellQue 2306;37 CR (5th) 253

R. v. Charlebois (P.) (2000), 261 N.R. 239 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2000] N.R. TBEd. NO.026

Patrick Charlebois (appellant) v. Her Majesty The Queen (respondent)

(27213; 2000 SCC 53)

Indexed As: R. v. Charlebois (P.)

Supreme Court of Canada

Gonthier, Bastarache, Binnie, Arbour and LeBel, JJ.

November 10, 2000.

Summary:

The accused was convicted of second de­gree murder for admittedly shooting the victim in the back of the head as he slept on the accused's couch. At trial, the accused unsuccessfully pleaded self-defence based on an overwhelming fear of the victim. The accused appealed, sub­mitting that the trial judge erred (1) in in­structing the jury on self-defence; (2) in improperly presenting the defence expert's evidence to the jury; (3) in limiting the relevance of evidence of the accused's good character; (4) in allowing the Crown to ask the accused whether he would take a blood test; and (5) in permitting the Crown to request that the accused submit to an assess­ment by the Crown's psychiatrist.

The Quebec Court of Appeal, Fish, J.A., dissenting, in a judgment reported 135 C.C.C.(3d) 414, dismissed the appeal. The court held that although the trial judge should have drawn the jury's attention to the ex­pert's evidence, should not have permitted the Crown to ask the accused to consent to a blood test and should have better instructed the jury on the use of char­acter evidence, the ac­cused was not preju­diced by the errors. Ac­cordingly, the court applied s. 686(1)(b) (iii) of the Criminal Code to dis­miss the ap­peal notwithstanding the errors, where there was no reasonable possi­bility that the jury's verdict would have been different had the er­rors not been made. The court held that the trial judge did not err in permitting the Crown to ask the accused to undergo a psychiatric assessment by the Crown psy­chiatrist. The accused appealed.

The Supreme Court of Canada, Arbour, J., dissenting, dismissed the appeal. This was a clear case where s. 686(1)(b)(iii) of the Criminal Code was correctly applied to dismiss the appeal notwithstanding the exist­ence of errors. The evidence was over­whelming. The defence of self-defence could not be made out. Any errors minimally prejudiced the accused and the inevitable result of a new trial would be another con­viction.

Criminal Law - Topic 4365

Procedure - Charge or directions - Jury or judge alone - Directions regarding expert evidence - The accused admitted shooting the victim, but pleaded self-defence based on an overwhelming fear of the victim - A defence expert gave psychiatric evidence supporting self-defence - The accused sub­mitted that the trial judge failed to proper­ly summarize this evidence for the jury and failed to relate it to the defence - The Supreme Court of Canada affirmed the ap­pli­cation of s. 686(1)(b)(iii) of the Cri­minal Code to dismiss the appeal - Any de­fects in the charge did not significantly prejudice the accused and did not result in a sub­stantial wrong or mis­carriage of jus­tice - In light of the over­whelming evi­dence against the accused and consider­ing the jury charge as a whole, the verdict would have necessarily been the same even absent the imperfections in the charge - See paragraphs 19 to 28.

Criminal Law - Topic 4370

Procedure - Charge or directions - Jury or judge alone - Directions regarding self-defence - The accused was convicted of second degree murder for admittedly shooting the victim as he slept on the ac­cused's couch - At trial, the accused un­successfully pleaded self-defence based on an overwhelming fear of the victim - The accused appealed, submitting that the trial judge erred in instructing the jury on self-defence by referring to "a reasonable man ... in the accused's situ­ation" without in­forming them that the ordinary person was infused with the accused's individual char­acteristics - The Supreme Court of Canada held that any errors caused by a lack of precision in the jury charge caused mini­mal prejudice and the Court of Appeal was correct to apply s. 686(1)(b)(iii) to dismiss the appeal on the ground that there was no substantial wrong or miscarriage of justice - Looking at the jury charge as a whole, "the charge could not have given the jury the impression that they were to consider the reasonableness of the [ac­cused's] per­ception from the perspective of the hypo­thetically neutral reasonable man, divorced from the [ac­cused's] personal circum­stances" - See paragraphs 13 to 18.

Criminal Law - Topic 4399.4

Procedure - Charge or directions - Jury or judge alone - Directions re allegations on cross-examination or improper questions - The accused was convicted of second degree murder for admittedly shooting the victim as he slept on the accused's couch -He pleaded self-defence - On cross-ex­amination, the Crown inappropriately asked the accused if he would submit to a blood test to prove his claim that he had never fired a gun before - The accused declined -Since whether the accused had ever fired a gun before was irrelevant, the sole pur­pose of the request was to attack the ac­cused's credibility - The trial judge proper­ly instructed the jury that no adverse infer­ence could be drawn from the ac­cused's exercise of his constitutional right to refuse a blood test - The Supreme Court of Can­ada affirmed dismissal of the appeal under s. 686(1)(b)(iii) of the Crimi­nal Code where any prejudice to the accused by the in­appropriate question was minimal - See paragraphs 31 to 34.

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 - Section 686(1)(b)(iii) of the Criminal Code empowered an appellate court to dis­miss an appeal notwithstanding error by a trial judge if there was no "substantial wrong or miscarriage of justice" - The Supreme Court of Canada restated that s. 686(1)(b)(iii) applied where there was no "reasonable possibility that the verdict would have been different had the error at issue not been made" - See paragraphs 10 to 12.

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 4365 , Crim­inal Law - Topic 4370 , Criminal Law - Topic 4399.4 and Criminal Law - Topic 5319.1 ].

Criminal Law - Topic 5319.1

Evidence and witnesses - Inferences - From refusal to submit to psychiatric or medical examination - The accused was convicted of second degree murder for admittedly shooting the victim as he slept on the accused's couch - He pleaded self-defence - On cross-examination, the Crown asked the accused if he would consent to being examined by the Crown's psychia­trist - The accused refused - The trial judge instructed the jury that the accused was entitled to refuse and that while they could not draw any adverse inference as to guilt, the refusal was rel­evant to the probative value of the evi­dence relating to the accused's mental state at the time of the shooting - The Supreme Court of Canada stated that "the Crown had the right to counter the expert evi­dence used to support the accused's theory that he killed in self-defence, and thus the Crown was entitled to ask the accused whether he would undergo an assessment. The trial judge did not err in law by in­structing the jury that the refusal was relevant to the probative value of the defence expert's evidence. Even if this were not the case, this is a situation where s. 686(1)(b)(iii) could be applied to rectify an error since there would have been little prejudice caused to the accused." - See paragraphs 35 to 38.

Cases Noticed:

R. v. Mahoney, [1982] 1 S.C.R. 834; 41 N.R. 582, appld. [para. 10].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205, refd to. [para. 11].

R. v. Bevan and Griffiths, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 11].

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. 11].

R. v. Pétel, [1994] 1 S.C.R. 3; 162 N.R. 137; 59 Q.A.C. 81, refd to. [para. 13].

R. v. Reilly, [1984] 2 S.C.R. 396; 55 N.R. 274; 6 O.A.C. 88, refd to. [para. 13].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, dist. [para. 14].

R. v. R.M.G., [1996] 3 S.C.R. 362; 202 N.R. 1; 81 B.C.A.C. 81; 132 W.A.C. 81, refd to. [para. 24].

R. v. Malott (M.A.), [1998] 1 S.C.R. 123; 222 N.R. 4; 106 O.A.C. 132, refd to. [para. 24].

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. 24].

R. v. Dickhoff (K.J.) (1998), 172 Sask.R. 1; 185 W.A.C. 1; 130 C.C.C.(3d) 494 (C.A.), refd to. [para. 24].

R. v. C.W.H. (1991), 3 B.C.A.C. 205; 7 W.A.C. 205; 68 C.C.C.(3d) 146 (C.A.), refd to. [para. 29].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 32].

R. v. Kuldip, [1990] 3 S.C.R. 618; 114 N.R. 284; 43 O.A.C. 340, refd to. [para. 33].

R. v. Sweeney (1977), 35 C.C.C.(2d) 245 (Ont. C.A.), refd to. [para. 37].

R. v. Stevenson (1990), 40 O.A.C. 1; 58 C.C.C.(3d) 464 (C.A.), refd to. [para. 37].

R. v. Worth (R.D.) (1995), 80 O.A.C. 369; 98 C.C.C.(3d) 133 (C.A.), refd to. [para. 37].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 63].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 63].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 64].

R. v. Symonds (1983), 9 C.C.C.(3d) 225 (Ont. C.A.), refd to. [para. 64].

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. 65].

R. v. Noble (S.I.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, refd to. [para. 65].

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. 83].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 34 [para. 7]; sect. 686(1)(b)(iii) [para. 8].

Counsel:

Michel Pennou, for the appellant;

Stella Gabbino, for the respondent.

Solicitors of Record:

Michel Pennou, Laval, Quebec, for the appellant;

Attorney General's Prosecutor, Montreal, Quebec, for the respondent.

This appeal was heard on April 13, 2000, before Gonthier, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

On November 10, 2000, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Bastarache, J. (Gonthier, Binnie and LeBel, JJ., concurring) - see para­graphs 1 to 40;

Arbour, J., dissenting - see paragraphs 41 to 92.