R. v. Courtoreille (D.A.) et al., (2007) 247 B.C.A.C. 166 (CA)

• Judge: Newbury, Mackenzie and Chiasson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 28, 2007
• Jurisdiction: British Columbia
• Citations: (2007), 247 B.C.A.C. 166 (CA);2007 BCCA 488

R. v. Courtoreille (D.A.) (2007), 247 B.C.A.C. 166 (CA);

    409 W.A.C. 166

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. OC.034

Regina (respondent) v. Gordon Bryan Giroux (appellant)

(CA032092)

Regina (respondent) v. Danial Alexander Courtoreille (appellant)

(CA032379; 2007 BCCA 488)

Indexed As: R. v. Courtoreille (D.A.) et al.

British Columbia Court of Appeal

Newbury, Mackenzie and Chiasson, JJ.A.

October 11, 2007.

Summary:

Two accused were convicted of second degree murder. See [2004] B.C.T.C. Uned. 437. They appealed.

The British Columbia Court of Appeal dismissed the appeals.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (incl. intent and drunkenness) - The accused appealed his conviction for second degree murder - He submitted, inter alia, that the trial judge erred by saying that even if he were to believe the accused and his co-accused when they asserted that they had little recall of the events, this would not necessarily lead to an acquittal - The British Columbia Court of Appeal rejected the submission - Even if the trial judge had believed the accused's alleged lack of recall, acquittal on the charge of murder would not have followed automatically - Their lack of recall was relevant to, but not determinative of, the defence of intoxication - The judge was obliged, as he did, to look at all of the relevant evidence - As he said "one must carefully consider the evidence as a whole and whether on the whole of that evidence a reasonable doubt exists" - See paragraph 48.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused appealed his conviction for second degree murder - He submitted, inter alia, that the trial judge erred by assessing his credibility on the basis of a misapprehension of evidence - The British Columbia Court of Appeal rejected the submission - The accused's essential contention was that the judge was mistaken in examples of alleged changes to his evidence - His submissions required the court to parse the trial judge's words and focus on specific details rather than considering his overall reasons - This was contrary to the instruction in R. v. Gagnon (SCC, 2006) - The trial judge made it clear that he reached his conclusion on the accused's credibility considering the evidence as a whole - A trial judge had to take into account all of the evidence when considering whether an offence had been proven beyond a reasonable doubt - See paragraphs 21 to 45.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re credibility of accused - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - Courtoreille and Giroux (the appellants) were convicted of second degree murder - They appealed - Giroux submitted, inter alia, that the trial judge's reasons concerning his credibility were inadequate - The British Columbia Court of Appeal rejected the submission - The trial judge concluded that in context, Giroux's evidence that he had no recall was not credible - He found it remarkable that the appellants' memories "began blinking on and off at the same time" and noted that "neither of the two accused described the other harming [the deceased] in any way" during the fight prior to Courtoreille stabbing the deceased - The trial judge also focused on the "the overall pattern" of the appellants' evidence and noted "they repeatedly recall details calculated to assist even when those recollections contradict other evidence they gave" - The trial judge was entitled to accept or reject Giroux's evidence in whole or in part - He had no obligation to describe his consideration of the details of that evidence - He stated clearly why he rejected Giroux's evidence - It was not plausible for Giroux's recollection to be as selective as it was and the evidence overall did not support his assertion that he was not aware of what he was doing at the time of the killing - The pathway to conviction was clear - The trial judge recognized that a crucial issue was the appellants' intention in the context of their intoxication defence - He rejected the evidence that they could not recall the events of the night in question - He reviewed in detail evidence relevant to Giroux's participation in the killing - He considered Giroux's requisite intent in light of the evidence overall and Giroux's pre- and post-offence conduct and statements - See paragraphs 76 to 84.

Criminal Law - Topic 5313.01

Evidence and witnesses - Inferences - From consciousness of guilt - Courtoreille and Giroux (the appellants) were convicted of second degree murder - They appealed, submitting, inter alia, that the trial judge erred in using post-offence conduct to infer the specific intent to kill - The Crown asserted that Courtoreille was the principal cause of the deceased's death and that Giroux aided and abetted him in killing the deceased (Criminal Code, ss. 21(1)(b), 21(1)(c)) - The Crown argued that the trial judge correctly applied the law to the facts in determining that the appellants had the requisite intent - The British Columbia Court of Appeal stated that post-offence or after-the-fact conduct, previously called evidence of consciousness of guilt, was relevant to a court's consideration of whether an accused was capable of intending the natural consequences of his or her actions - In this case, the post-offence conduct evidence was relevant not only to whether Giroux was guilty of aiding and abetting the killing of the deceased, but also to the level of intoxication of both appellants - As to the latter, the trial judge could consider whether their conduct before and after the stabbing demonstrated an awareness of the consequences of what they were doing - See paragraphs 58 to 75.

Criminal Law - Topic 5316

Evidence and witnesses - Inferences - Of guilt - From conduct - [See Criminal Law - Topic 5313.01 ].

Cases Noticed:

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. [paras. 8, 95].

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. [paras. 8, 95].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 21].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [paras. 23, 98].

R. v. Burns (R.H.) (1994), 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 23].

R. v. Lohrer, [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 29].

R. v. Logan, Logan and Johnson, [1990] 2 S.C.R. 731; 112 N.R. 144; 41 O.A.C. 330; 58 C.C.C.(3d) 391, refd to. [paras. 58, 90].

R. v. Kirkness, [1990] 3 S.C.R. 74; 116 N.R. 81; 69 Man.R.(2d) 81; 60 C.C.C.(3d) 97, refd to. [paras. 58, 90].

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; 105 C.C.C.(3d) 137, refd to. [para. 59].

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. 60].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289, refd to. [para. 61].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1; 125 C.C.C.(3d) 385, refd to. [para. 61].

R. v. Wiltse (J.W.) and Yarema (M.W.) (1994), 72 O.A.C. 226; 19 O.R.(3d) 379 (C.A.), refd to. [para. 62].

R. v. A.B. - see R. v. Bakker (A.).

R. v. Bakker (A.), [2003] B.C.T.C. 741; 57 W.C.B.(2d) 625; 2003 BCSC 741, refd to. [para. 72].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 76].

R. v. Thomas (D.L.) (2006), 230 B.C.A.C. 267; 380 W.A.C. 267; 212 C.C.C.(3d) 460; 2006 BCCA 411, refd to. [paras. 76, 99].

R. v. D.R., H.R. and D.W., [1996] 2 S.C.R. 291; 197 N.R. 321; 144 Sask.R. 81; 124 W.A.C. 81; 107 C.C.C.(3d) 289, refd to. [para. 78].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1; 2002 SCC 27, refd to. [para. 79].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226 (C.A.), refd to. [para. 89].

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. 101].

R. v. Haughton (D.), [1994] 3 S.C.R. 516; 179 N.R. 1; 79 O.A.C. 319, refd to. [para. 101].

R. v. Elkins (M.R.) (1995), 86 O.A.C. 125; 26 O.R.(3d) 161 (C.A.), refd to. [para. 101].

Counsel:

S. Buck, for the appellant, Giroux;

L. Sears, for the appellant, Courtoreille;

W. Rubin and E. Campbell, for the respondent.

These appeals were heard on March 28, 2007, by Newbury, Mackenzie and Chiasson, JJ.A., of the British Columbia Court of Appeal. The Court of Appeal delivered its decision on October 11, 2007, including the following opinions:

Chiasson, J.A. (Mackenzie, J.A., concurring) - see paragraphs 1 to 87;

Newbury, J.A. - see paragraphs 88 to 102.