R. v. Cliff (J.M.), (2015) 367 B.C.A.C. 51 (CA)

Judge:Newbury, Lowry and Tysoe, JJ.A.
Court:Court of Appeal of British Columbia
Case Date:January 14, 2015
Jurisdiction:British Columbia
Citations:(2015), 367 B.C.A.C. 51 (CA);2015 BCCA 15
 
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R. v. Cliff (J.M.) (2015), 367 B.C.A.C. 51 (CA);

    631 W.A.C. 51

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Temp. Cite: [2015] B.C.A.C. TBEd. JA.052

Regina (respondent) v. Jamie Michael Cliff (appellant)

(CA039855; 2015 BCCA 15)

Indexed As: R. v. Cliff (J.M.)

British Columbia Court of Appeal

Newbury, Lowry and Tysoe, JJ.A.

January 14, 2015.

Summary:

The accused and the woman he recently lived with went to the apartment of the man the woman was rooming with. The woman and man were killed and set afire. There was circumstantial evidence implicating the accused. The accused was charged with two counts of murder. At trial, the accused testified that three unknown assailants broke in and were the killers. He testified that he escaped and was not the killer. When arrested, the accused gave a false name. He gave no statement to the police. A jury convicted the accused on both counts. The accused appealed, submitting that the trial judge erred (1) in failing to instruct the jury that they could not draw an adverse inference from the fact that the accused exercised his right to counsel and his right to remain silent; (2) in failing to instruct the jury that the accused's testimony did not require corroboration; and (3) in failing to instruct the jury on the defence of intoxication, even though the accused and Crown had agreed at trial that the defence should not be put to the jury.

The British Columbia Court of Appeal dismissed the appeal. The accused's right to silence was not infringed by the Crown's cross-examination of the accused on his post-offence conduct (including giving a false name and not calling 911). The purpose of the questioning was to challenge the accused's credibility rather than to suggest that he had a duty to cooperate with the police. No warning was required that the accused's testimony need not be corroborated. The standard R. v. D.W. instruction was sufficient. Finally, there was no error in failing to instruct the jury on intoxication, as there was insufficient evidence of intoxication upon which a jury could reasonably infer that the accused lacked the requisite intent or capacity for murder.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (incl. intent and drunkenness) - See paragraphs 21 to 46.

Criminal Law - Topic 4360

Procedure - Charge or directions - Jury or judge alone - Directions regarding inferences from silence or admissions by silence or acquiescence - See paragraphs 21 to 46.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - See paragraphs 21 to 46.

Criminal Law - Topic 4399.9

Procedure - Jury charge - Directions re flight and other post-offence behaviour of accused - See paragraphs 21 to 46.

Cases Noticed:

R. v. Shannon (T.) (2014), 357 B.C.A.C. 208; 611 W.A.C. 208; 2014 BCCA 250, refd to. [para. 22].

R. v. Fontaine (T.J.) (2011), 303 B.C.A.C. 65; 512 W.A.C. 65; 2011 BCCA 140, refd to. [para. 22].

R. v. Snelson (N.G.) (2013), 349 B.C.A.C. 37; 596 W.A.C. 37; 2013 BCCA 550, refd to. [para. 24].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 25].

R. v. White (D.R.) (2011), 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 28].

R. v. Poirier (J.) (2000), 133 O.A.C. 352; 146 C.C.C.(3d) 436 (C.A.), refd to. [para. 28].

R. v. Chenier (P.) et al. (2006), 207 O.A.C. 104; 205 C.C.C.(3d) 333 (C.A.), refd to. [para. 31].

R. v. Oliver (J.J.) et al. (2005), 194 O.A.C. 284; 194 C.C.C.(3d) 92 (C.A.), refd to. [para. 35].

R. v. Griffin (J.) et al. (2009), 388 N.R. 334; 2009 SCC 28, refd to. [para. 39].

R. v. Lemky (T.R.), [1996] 1 S.C.R. 757; 194 N.R. 1; 73 B.C.A.C. 1; 120 W.A.C. 1, refd to. [para. 44].

Counsel:

J. Narwal, for the appellant;

F.G. Tischler, for the respondent.

This appeal was heard on December 12, 2014, at Vancouver, B.C., before Newbury, Lowry and Tysoe, JJ.A., of the British Columbia Court of Appeal.

On January 14, 2015, Newbury, J.A., delivered the following judgment for the Court of Appeal.

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