R. v. Chenier (P.) et al., (2006) 207 O.A.C. 104 (CA)

• Judge: Weiler, Blair and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 10, 2006
• Jurisdiction: Ontario
• Citations: (2006), 207 O.A.C. 104 (CA)

R. v. Chenier (P.) (2006), 207 O.A.C. 104 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. FE.051

Her Majesty The Queen (respondent) v. Peter Chenier and George Farley (appellants)

(C38180; C38099)

Indexed As: R. v. Chenier (P.) et al.

Ontario Court of Appeal

Weiler, Blair and MacFarland, JJ.A.

February 10, 2006.

Summary:

The accused was convicted of first degree murder, conspiracy to commit murder and possession of explosives with intent to cause death or bodily harm in relation to what the Crown alleged was the contract killing of a witness set to testify against the accused Chenier. The Crown's case rested primarily on the evidence of a co-conspirator (drove the get-away vehicle after Farley killed the victim as arranged by Chenier). The accused appealed, raising 19 grounds of appeal, including the sufficiency of the Vetrovec warnings and the admissibility of a hearsay statement.

The Ontario Court of Appeal allowed the appeal and ordered a new trial. The trial judge erred in failing to give a correct and adequate Vetrovec warning respecting two prosecution witness, including the co-conspirator. The trial judge erred in giving a Vetrovec warning respecting one defence witness. Finally, the trial judge erred in not instructing the jury to disregard a hearsay statement as evidence against the accused Farley.

Criminal Law - Topic 2762

Attempts, conspiracies, accessories and parties - Counselling another to commit offence - Elements - Section 22(2) of the Criminal Code made a person a party to an offence for counselling another to commit the offence if he "knew or ought to have known" that the offence was likely to have been committed because of the counselling - The Ontario Court of Appeal stated that "I agree that the objective element incorporated into s. 22(2) by the words 'ought to have known' is constitutionally inoperative in relation to the counselling offences such as murder where the fundamental justice component of s. 7 of the Charter requires that foresight of the consequences of the counselled activity be subjective." - The trial judge left s. 22(2) with the jury when it did not apply and failed to find "ought to have known" to be constitutionally inoperative - However, the court invoked s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the error - The reference to s. 22(2) was isolated and the trial judge's many references in the jury charge and recharge to the Crown's need to establish subjective knowledge resulted in the jury not being misled - The jury clearly understood the need to find subjective foresight of the murder to find the accused guilty as a party - See paragraphs 53 to 69.

Criminal Law - Topic 2765

Attempts, conspiracies, accessories and parties - Counselling another to commit offence - Jury charge - [See Criminal Law - Topic 2762 ].

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - Boisclair, the Crown's key witness, testified that he and Farley were hired by Chenier to kill a witness scheduled to testify against Chenier - Boisclair reportedly drove the get-away vehicle after Farley killed the witness - Boisclair's testimony was secured under a plea bargain charging him with manslaughter rather than first degree murder - He received the benefit of a 10 year sentence - Chenier and Farley were convicted of first degree murder and conspiracy to commit murder and received life imprisonment without eligibility for parole for 25 years - The Ontario Court of Appeal ordered a new trial - The trial judge's Vetrovec warning respecting Boisclair and another Crown witness was inadequate - This was a case where the strongest Vetrovec warning was required - The judge cautioned the jury to be "careful" of accepting Boisclair's testimony absent confirmatory evidence, when he should have told them that it would be dangerous to convict on Boisclair's unconfirmed testimony - To further the error, the judge failed to adequately explain what constituted confirmatory evidence and one of the five examples given was not confirmatory - Further, the judge should have emphasized to the jury the "sweet deal" that Boisclair got in exchange for his testimony - If believed, Boisclair would have been a party to the first degree murder, yet he would be eligible for parole after less than four years while Chenier and Farley would have to serve 25 years without being eligible for parole - See paragraphs 26 to 38.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4354 ].

Criminal Law - Topic 4392

Procedure - Charge or directions - Jury or judge alone - Directions re inferences of guilt - The accused were charged with, inter alia, first degree murder - The Crown relied on a series of post-offence acts and statements as proof of consciousness of guilt - The accused did not object to admissibility, but now challenged the trial judge's directions to the jury respecting the evidence of post-offence conduct - The Ontario Court of Appeal held that the trial judge did not err in failing to instruct the jury that evidence of post-offence conduct could only be used to infer guilt where the jury rejected any other innocent explanation - The trial judge did not instruct the jury that the post-offence conduct could support an inference of consciousness of guilt - The court stated that "if the evidence is reasonably capable of supporting an inference of consciousness of guilt, then the trial judge should let the jury decide whether to use it" - It was unnecessary to specifically instruct the jury that they first had to reject any other explanation before drawing any inference from the post-offence conduct" - See paragraphs 99 to 110.

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 2762 ].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - [See Criminal Law - Topic 4354 ].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - The trial judge gave a Vetrovec-like warning respecting the evidence of a defence witness - The Ontario Court of Appeal stated that "it is not permissible to give a Vetrovec warning in relation to a defence witness; the warning should only be given where a witness is giving evidence that assists in the demonstration of guilt" - See paragraph 42.

Criminal Law - Topic 5515

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - What constitutes corroboration - [See Criminal Law - Topic 4354 ].

Cases Noticed:

R. v. Vetrovec; R. v. Gaja (1982), 41 N.R. 606; 67 C.C.C.(2d) 1 (S.C.C.), refd to. [para. 26].

R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), leave to appeal refused (2005), 336 N.R. 195; 204 O.A.C. 395 (S.C.C.), refd to. [para. 26].

R. v. Trudel (R.) - see R. v. Sauvé (J.) et al.

R. v. Pollock (R.) et al. (2004), 188 O.A.C. 37; 187 C.C.C.(3d) 213 (C.A.), refd to. [para. 26].

R. v. Morrisson (D.) - see R. v. Pollock (R.) et al.

R. v. R.W.A. (2005), 203 O.A.C. 56 (C.A.), refd to. [para. 26].

R. v. Brooks (2000), 250 N.R. 103; 129 O.A.C. 205; 141 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 27].

R. v. Kehler (R.A.) (2003), 327 A.R. 66; 296 W.A.C. 66; 178 C.C.C.(3d) 83 (C.A.), affd. (2004), 317 N.R. 30; 346 A.R. 19; 320 W.A.C. 19; 181 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 34].

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397 (S.C.C.), refd to. [para. 41, footnote 2].

R. v. Tzimopoulos (1986), 17 O.A.C. 1; 29 C.C.C.(3d) 304 (C.A.), leave to appeal refused (1987), 76 N.R. 80; 21 O.A.C. 319; 54 C.R.(3d) xxvii (S.C.C.), refd to. [para. 42].

R. v. Hoilett (1991), 46 O.A.C. 168; 3 O.R.(3d) 449 (C.A.), refd to. [para. 42].

R. v. Pilotte (L.H.) (2002), 156 O.A.C. 1; 163 C.C.C.(3d) 225 (C.A.), leave to appeal refused (2003), 308 N.R. 399; 180 O.A.C. 398 (S.C.C.), refd to. [para. 42].

R. v. Suzack (C.V.) et al. (2000), 128 O.A.C. 140; 141 C.C.C.(3d) 449 (C.A.), leave to appeal refused (2001), 270 N.R. 193; 150 O.A.C. 197 (S.C.C.), refd to. [para. 44].

R. v. Wristen (A.N.) (1999), 127 O.A.C. 314; 141 C.C.C.(3d) 1 (C.A.), leave to appeal refused (2001), 266 N.R. 198; 143 O.A.C. 398 (S.C.C.), refd to. [para. 47].

R. v. Martineau (1990), 112 N.R. 83; 109 A.R. 321; 58 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 58].

R. v. Logan, Logan and Johnson (1990), 112 N.R. 144; 41 O.A.C. 330; 58 C.C.C.(3d) 391 (S.C.C.), refd to. [para. 58].

R. v. Rodney (1990), 112 N.R. 167; 58 C.C.C.(3d) 408 (S.C.C.), refd to. [para. 58].

R. v. Sit (1991), 130 N.R. 241; 50 O.A.C. 81; 66 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 58].

R. v. Laliberty (L.) et al. (1997), 102 O.A.C. 51; 117 C.C.C.(3d) 97 (C.A.), refd to. [para. 58].

R. v. Carter (1982), 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142; 67 C.C.C.(2d) 568 (S.C.C.), refd to. [para. 70, footnote 6].

R. v. Handy (J.) (2002), 290 N.R. 1; 160 O.A.C. 201; 164 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 84].

R. v. Arp (B.) (1998), 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1; 129 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 84].

R. v. Bero (C.) (2000), 137 O.A.C. 336; 151 C.C.C.(3d) 545 (C.A.), refd to. [para. 95].

R. v. Arcangioli (G.) (1994), 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 101].

R. v. White (R.G.) and Côté (Y.) (1998), 227 N.R. 326; 112 O.A.C. 1; 125 C.C.C.(3d) 385 (S.C.C.), refd to. [para. 103].

R. v. Maugey (C.) et al. (2000), 133 O.A.C. 255; 146 C.C.C.(3d) 99 (C.A.), refd to. [para. 104].

R. v. Thurston (W.J.) (2001), 143 O.A.C. 212 (C.A.), refd to. [para. 105].

R. v. Katwaru (R.) (2001), 140 O.A.C. 185; 153 C.C.C.(3d) 433 (C.A.), refd to. [para. 111].

Counsel:

Clayton C. Ruby, for the appellant, Chenier;

Diane Magas, for the appellant, Farley;

Susan Ficek, Jennifer Woolcombe and Nadia Thomas, for the respondent, Crown.

This appeal was heard on October 3-5, 2005, before Weiler, Blair and MacFarland, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court was delivered by Blair, J.A., and released on February 10, 2006.