R. v. Chretien (E.),

• Jurisdiction: Ontario
• Judge: Weiler, MacFarland and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: 2014 ONCA 403,(2014), 321 O.A.C. 150 (CA)
• Date: 06 November 2013

R. v. Chretien (E.) (2014), 321 O.A.C. 150 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JN.004

Her Majesty the Queen (respondent) v. Emmanuel Chretien (appellant)

(C53316; 2014 ONCA 403)

Indexed As: R. v. Chretien (E.)

Ontario Court of Appeal

Weiler, MacFarland and Watt, JJ.A.

May 16, 2014.

Summary:

The accused was charged with second degree murder in the beating death of a drug dealer. The accused admitted that he was guilty of manslaughter, but not murder, primarily because he had been intoxicated due to drug ingestion and lacked the required specific intent. A jury convicted the accused of second degree murder. The accused appealed.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 1265.2

Offences against person and reputation - Murder - General principles - Jury charge - Second degree murder - [See both Criminal Law - Topic 1299].

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge (incl. intent and drunkenness) - The accused was charged with second degree murder in the beating death of a drug dealer - The accused admitted that he was guilty of manslaughter, but not murder, primarily because he had been intoxicated due to drug ingestion and lacked the required specific intent - A jury convicted the accused of second degree murder - The accused appealed, asserting, inter alia, that the trial judge's instructions to the jury on the effect of evidence of intoxication on proof of the mental element in murder left the jury with the erroneous impression that proof of capacity to form intent, not actual intent, was sufficient to establish the accused's guilt - The Ontario Court of Appeal discussed the principles governing instructions to the jury on intoxication - See paragraphs 88 to 92.

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge (incl. intent and drunkenness) - The accused was charged with second degree murder in the beating death of a drug dealer - The accused admitted that he was guilty of manslaughter, but not murder, primarily because he had been intoxicated due to drug ingestion and lacked the required specific intent - A jury convicted the accused of second degree murder - The accused appealed, asserting, inter alia, that the trial judge's instructions to the jury on the effect of evidence of intoxication on proof of the mental element in murder left the jury with the erroneous impression that proof of capacity to form intent, not actual intent, was sufficient to establish the accused's guilt - The Ontario Court of Appeal dismissed the appeal - The court outlined four reasons why this ground of appeal failed, concluding with the observation that the accused had not objected to the instruction either before or after it was given - See paragraphs 93 to 97.

Criminal Law - Topic 4356

Procedure - Charge or directions - Jury or judge alone - Directions regarding intent or mens rea - [See both Criminal Law - Topic 1299].

Criminal Law - Topic 4375.4

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior statements - Just hours after the beating death of a drug dealer, police interviewed the son of the accused's girlfriend, with whom the accused lived - The son gave a sworn, videotaped statement that implicated the accused in the death - At trial, the son claimed that he had no memory of the conversation - The trial judge admitted the statement under the principled exception to the hearsay rule - The jury convicted the accused of second degree murder - On appeal, he asserted that the trial judge had not adequately cautioned the jurors about their use of the statement - The Ontario Court of Appeal discussed the principles governing the assessment of jury instructions regarding admissible hearsay - See paragraphs 67 to 74.

Criminal Law - Topic 4375.4

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior statements - Just hours after the beating death of a drug dealer, police interviewed the son of the accused's girlfriend, with whom the accused lived - The son gave a sworn, videotaped statement that implicated the accused in the death - At trial, the son claimed that he had no memory of the conversation - The trial judge admitted the statement under the principled exception to the hearsay rule - The jury convicted the accused of second degree murder - On appeal, he asserted that the trial judge had not adequately cautioned the jurors about their use of the statement - The Ontario Court of Appeal dismissed the appeal - Absent some error in principle, substantial deference was owed to the trial judge's word choice and manner of instruction - Here, the trial judge's instructions were responsive to and reflective of the accused's concerns - Counsel did not object to the charge either before or after it was delivered - The instructions adequately equipped the jurors to evaluate the witness' statement - See paragraphs 75 to 80.

Criminal Law - Topic 4378

Procedure - Charge or directions - Jury or judge alone - Judicial review of - [See first Criminal Law - Topic 4375.4].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See second Criminal Law - Topic 1299, second Criminal Law - Topic 4375.4 and second Criminal Law - Topic 4399.9].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The accused was charged with second degree murder in the beating death of a drug dealer - The accused admitted that he was guilty of manslaughter, but not murder - A jury convicted the accused of second degree murder - On appeal, the accused challenged the correctness of the trial judge's instructions to the jury regarding the use of what was said to be post-offence conduct in determining the level of the accused's culpability - The evidence emerged when the videotaped statement to police by the son of the accused's girlfriend was admitted under the principled hearsay exception - The focus of that evidence was what the accused said that he had done after leaving the victim's apartment (where the beating occurred) - The Ontario Court of Appeal discussed the principles governing the relevance of post-offence conduct - See paragraphs 103 to 106.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The accused was charged with second degree murder in the beating death of a drug dealer - The accused admitted that he was guilty of manslaughter, but not murder, primarily because he had been intoxicated due to drug ingestion and lacked the required specific intent - A jury convicted the accused of second degree murder - On appeal, the accused challenged the correctness of the trial judge's instructions to the jury regarding the use of what was said to be post-offence conduct in determining the level of the accused's culpability - The evidence emerged when the videotaped statement to police by the son of the accused's girlfriend was admitted - The focus of that evidence was what the accused said that he had done after leaving the victim's apartment (where the beating occurred) - The Ontario Court of Appeal dismissed the appeal - The trial judge's instructions on the state of mind requirement for murder contained two references to things said or done after the beating - Neither instruction attracted any objection from the accused - The instructions apprised the jurors about their use of evidence adduced at the trial - They were followed by a clear and correct statement of the accused's position - The lack of objection was telling - See paragraphs 107 to 117.

Criminal Law - Topic 5420

Evidence and witnesses - Witnesses - Out of court statements - Videotaped statements - [See second Evidence - Topic 1527].

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - At issue on this appeal was whether a sworn, videotaped statement to police by a person called as a Crown witness at trial satisfied the reliability requirement of the principled exception to the hearsay rule - Necessity was not an issue because, at trial, the witness claimed no memory of the conversation - The Ontario Court of Appeal discussed the governing principles regarding admissibility of hearsay under the principled approach - See paragraphs 43 to 55.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - At issue on this appeal was whether a sworn, videotaped statement to police by a person called as a Crown witness at trial satisfied the reliability requirement of the principled exception to the hearsay rule - Necessity was not an issue because, at trial, the witness claimed no memory of the conversation - The Ontario Court of Appeal held that the witness' videotaped statement was properly admitted under the principled exception to the hearsay rule - The trial judge's finding that the reliability requirement had been met was entitled to deference - Her finding of substantive reliability reflected no error in principle - The accused's argument that, because the statement related to a central issue in the Crown's case, it should have been subjected to greater scrutiny was not supported by the authorities and was fundamentally inconsistent with the principled approach - Finally, this was not a case of multiple hearsays - There was little reason to doubt the witness' perception, memory, narration or sincerity - See paragraphs 56 to 61.

Cases Noticed:

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 36].

R. v. Youvarajah (Y.), [2013] 2 S.C.R. 720; 447 N.R. 47; 308 O.A.C. 284; 2013 SCC 41, refd to. [para. 44].

R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 44].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 45].

R. v. Devine (R.A.), [2008] 2 S.C.R. 283; 376 N.R. 297; 433 A.R. 380; 429 W.A.C. 380; 2008 SCC 36, refd to. [para. 45].

R. v. Taylor (D.) (2012), 299 O.A.C. 97; 294 C.C.C.(3d) 483; 2012 ONCA 809, refd to. [para. 45].

R. v. James (R.) (2011), 287 O.A.C. 18; 283 C.C.C.(3d) 212; 2011 ONCA 839, refd to. [para. 53].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321, refd to. [para. 53].

R. v. Biscette (S.), [1996] 3 S.C.R. 599; 203 N.R. 244; 187 A.R. 392; 127 W.A.C. 392, refd to. [para. 58].

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. 67].

R. v. Almarales (A.) (2008), 244 O.A.C. 127; 237 C.C.C.(3d) 148; 2008 ONCA 692, refd to. [para. 67].

R. v. S.A. (1992), 59 O.A.C. 234; 76 C.C.C.(3d) 522 (C.A.), refd to. [para. 69].

R. v. Blackman (L.) (2006), 218 O.A.C. 291; 215 C.C.C.(3d) 524 (C.A.), affd. [2008] 2 S.C.R. 298; 376 N.R. 265; 239 O.A.C. 368; 2008 SCC 37, refd to. [para. 74].

R. v. Pasqualino (C.) (2008), 239 O.A.C. 59; 233 C.C.C.(3d) 319; 2008 ONCA 554, refd to. [para. 74].

R. v. Robinson (D.), [1996] 1 S.C.R. 683; 194 N.R. 1; 72 B.C.A.C. 161; 119 W.A.C. 161, refd to. [para. 89].

R. v. Seymour (J.), [1996] 2 S.C.R. 252; 197 N.R. 81; 76 B.C.A.C. 1; 125 W.A.C. 1, refd to. [para. 90].

R. v. Juanetty (M.) (2005), 200 O.A.C. 204; 200 C.C.C.(3d) 116 (C.A.), refd to. [para. 90].

R. v. Daley - see R. v. W.J.D.

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 91].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 104].

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. 105].

R. v. Pharr (J.) (2007), 227 O.A.C. 112; 2007 ONCA 551, refd to. [para. 105].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 34 O.R.(3d) 620 (C.A.), refd to. [para. 105].

R. v. Stiers (K.) (2010), 264 O.A.C. 305; 255 C.C.C.(3d) 99; 2010 ONCA 382, refd to. [para. 105].

Counsel:

Gregory Lafontaine and Sam Scratch, for the appellant;

Alison Wheeler, for the respondent.

This appeal was heard on November 6, 2013, by Weiler, MacFarland and Watt, JJ.A., of the Ontario Court of Appeal. On May 16, 2014, Watt, J.A., released the following judgment for the court.