R. v. Coutu (K.S.), (2008) 231 Man.R.(2d) 275 (CA)

• Judge: Hamilton, Freedman and Chartier, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 16, 2008
• Jurisdiction: Manitoba
• Citations: (2008), 231 Man.R.(2d) 275 (CA);2008 MBCA 151

R. v. Coutu (K.S.) (2008), 231 Man.R.(2d) 275 (CA);

      437 W.A.C. 275

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. DE.038

Her Majesty The Queen (respondent) v. Jason Arthur Coutu (accused/appellant)

(AR 06-30-06489)

Her Majesty The Queen (respondent) v. John Hornbrook (accused/appellant)

(AR 06-30-06492)

Her Majesty The Queen (respondent) v. Keith Sean Coutu (accused/appellant)

(AR 06-30-06493)

(2008 MBCA 151)

Indexed As: R. v. Coutu (K.S.)

Manitoba Court of Appeal

Hamilton, Freedman and Chartier, JJ.A.

December 16, 2008.

Summary:

A party turned violent, leaving one man (Lagimodiere) dead and another (Tod) injured. Keith Coutu was convicted of second degree murder in respect of Lagimodiere, and also of a firearms offence. He was also convicted, as were his brother Jason Coutu and John Hornbrook, of attempted murder and aggravated assault in respect of Tod. The accused were sentenced accordingly ([2006] Man.R.(2d) Uned. 63). All three accused appealed their convictions and sentences. Identification was a key issue, there being no in-court identification by any eyewitness to the crime.

The Manitoba Court of Appeal dismissed the conviction and sentence appeals of both Keith and Jason Coutu. The court allowed Hornbrook's appeal and ordered a new trial, noting that the identification evidence in his case was far less reliable than in the cases of the other appellants and was not sufficiently dealt with in the jury charge.

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge (incl. intent and drunkenness) - Keith Coutu was convicted of second degree murder - He was also convicted, along with two co-accused, of attempted murder and aggravated assault - Coutu appealed, alleging that the jury charge was deficient on the question of intent for murder and intoxication - The Manitoba Court of Appeal dismissed the appeal, holding that the jury charge was not deficient - See paragraphs 93 to 115.

Criminal Law - Topic 4341.2

Procedure - Jury - Evidence - Leaving copies of transcripts, statements and exhibits with jury - A party turned violent, leaving Lagimodiere shot dead and Tod injured - Keith Coutu was convicted of second degree murder - He was also convicted, along with two co-accused, of attempted murder and aggravated assault - Coutu appealed, arguing that the trial judge erred in failing to provide the jury with requested transcripts of certain evidence - The evidence was that of Tod's girlfriend (Beaulieu) who was hiding in the closet when the events took place - Coutu noted that Beaulieu had been asked to speak up a number of times while on the witness stand and the jury might have missed significant parts of her evidence - He claimed her evidence was crucial to the case and transcripts should have been provided - In response to the jury's request for transcripts, the judge cited time constraints and offered to play back recorded evidence for the jury - The judge offered to do his best to get the transcripts - He asked the jury to provide him with specific questions - The jury did not ask again and returned a verdict - The Manitoba Court of Appeal dismissed Coutu's appeal, holding that the judge was not wrong in law in handling the matter as he did - See paragraphs 116 to 125.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - A party turned violent, leaving Lagimodiere shot dead and Tod injured - Keith Coutu was convicted of second degree murder - He was also convicted, along with two co-accused, Jason Coutu and John Hornbrook, of attempted murder and aggravated assault - Hornbrook appealed, alleging that there were errors in the jury charge regarding his identification and the jury charge was not fair and balanced - The Manitoba Court of Appeal allowed the appeal and ordered a new trial - The court noted that there was a lack of specific reference to the "shaky" identification made by the two key witnesses - The witnesses who had observed the assault, identified Hornbrook, with difficulty, from photo packs, but there was no in-court identification by the witnesses - One of the witness's identification was effectively negatived on cross-examination - The charge glossed over the fact that other witnesses only identified Hornbrook as having been at the party, but not as having participated in the crime - The trial judge should have pointed out the key elements of Hornbrook's individual defence to the jury - The court held that on an issue as fundamental as identification, in the context of the Crown's case against Hornbrook, the errors in the charge could not be overcome by the application of the curative proviso in the Criminal Code (s. 686(1)(b)(iii)) - See paragraphs 159 to 186.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - A party turned violent, leaving Lagimodiere shot dead and Tod injured - Keith Coutu was convicted of second degree murder - He was also convicted, along with two co-accused, Jason Coutu and John Hornbrook, of attempted murder and aggravated assault - While Hornbrook had been found by the police shortly after the incident, lying unconscious nearby, the Coutu brothers were not at the scene - At trial, the Crown had sought to introduce evidence that Jason Coutu had fled from the police just prior to his arrest about a month after the incident on the basis that this was relevant to the issue of identity - A voir dire was conducted, after which the judge admitted the evidence - Jason Coutu appealed, claiming that the judge made an error in admitting this evidence and in his charge regarding post-offence conduct, namely flight from the police - The Manitoba Court of Appeal dismissed the appeal where the judge exercised his discretion properly - See paragraphs 139 to 147.

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - [See Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 5241

Evidence and witnesses - Identification - Eyewitness identification - [See Criminal Law - Topic 4361 ].

Criminal Law - Topic 5241.1

Evidence and witnesses - Identification - Out-of-court identification - A party turned violent, leaving Lagimodiere dead and Tod injured - Tod identified one of his attackers as Keith Coutu from a police photo pack - Tod's girlfriend, Beaulieu, who was hiding in a closet during the incident, also identified Keith Coutu from a photo pack - At Coutu's murder trial, the Crown did not seek any in-court identification, although the detective who conducted the photo pack identification testified that the person whose picture was selected by Tod and Beaulieu was the "Keith Coutu" sitting in court - Coutu was convicted of second degree murder, attempted murder and aggravated assault - Coutu appealed, arguing that the evidence relating to the photo pack identification was inadmissible hearsay - The Manitoba Court of Appeal held that no hearsay issue arose where Tod and Beaulieu both testified and repeated or adopted their earlier identification and were available for cross-examination - The court held that although there was no in-court identification by Tod or Beaulieu, the police detective's testimony provided the necessary linkage to complete the chain of identification - The detective's in-court testimony was not hearsay because it was adduced to prove the truth that the picture selected by Tod and Beaulieu was that of the person sitting in the court room, not to prove the truth that Keith Coutu committed any offence, which would be a hearsay purpose - See paragraphs 66 to 92.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - A party turned violent, leaving one man (Lagimodiere) dead and another (Tod) injured - Keith Coutu was convicted of second degree murder in respect of Lagimodiere, and also of a firearms offence - He was sentenced to the mandatory term of life imprisonment for the murder conviction and to one year imprisonment concurrent on the weapons conviction - The parole ineligibility period was set at 17 years - Coutu appealed, arguing that the period of parole should not have been increased beyond the 10 year statutory minimum because he had a young family to support, that there was no evidence that this was an execution type slaying and there were no facts to justify the increase - The Manitoba Court of Appeal dismissed the sentence appeal, where the trial judge made no error in principle, nor did he disregard relevant factors or take into account irrelevant factors - The seven year increase over the minimum was not unfit - The court noted that the judge had considered that Coutu did not appear to be a particularly good candidate for rehabilitation - He had a fairly lengthy record - Further the murder did not happen on the spur of the moment, rather the judge concluded that Coutu made a conscious decision to kill both Lagimodiere and Tod - Coutu was prohibited from possession of firearms at the time, which would, in itself, in the judge's view warrant a substantial increase - See paragraphs 188 to 194.

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - [See Criminal Law - Topic 5670 ].

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - A party turned violent, leaving Lagimodiere shot dead and Tod injured - Keith Coutu was convicted of second degree murder - He was also convicted, along with two co-accused, his brother Jason Coutu and John Hornbrook, of attempted murder and aggravated assault - Jason Coutu was sentenced to eight years less double credit for time served, resulting in an additional four and a one-half year term of imprisonment - The judge considered Jason Coutu's young age, his education and his supportive family - He had four youth court convictions and no other convictions on his record - He appealed the sentence, claiming that he had suffered a tragic youth - His father had been murdered when he was an infant and the family ended up in poverty - He had difficulties at school and had only Grade 9 education - He referred to his aboriginal status as a consideration - The Manitoba Court of Appeal dismissed the appeal, holding that the sentence was not unfit, nor did the trial judge's reasons suffer from any defect warranting appellate intervention - The court commented that the circumstances were grave and the fact that Tod survived was fortuitous indeed - See paragraphs 195 to 199.

Criminal Law - Topic 5938

Sentence - Aggravated assault - [See second Criminal Law - Topic 5881 ].

Evidence - Topic 1675

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of physical sensation and mental condition - Extra-judicial identification of accused from photograph - [See Criminal Law - Topic 5241.1 ].

Cases Noticed:

R. v. Hibbert (K.R.), [2002] 2 S.C.R. 445; 287 N.R. 111; 165 B.C.A.C. 161; 270 W.A.C. 161; 2002 SCC 39, refd to. [para. 66].

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. 72].

R. v. Devine (R.A.) (2008), 376 N.R. 297; 433 A.R. 380; 429 W.A.C. 380; 232 C.C.C.(3d) 1; 2008 SCC 36, refd to. [para. 73].

R. v. Swanston (1982), 65 C.C.C.(2d) 453 (B.C.C.A.), refd to. [para. 76].

R. v. T.T. and S.L. (1997), 103 O.A.C. 15; 14 C.R.(5th) 116 (C.A.), refd to. [para. 77].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 87].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 95].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 95].

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. 98].

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. 98].

R. v. Thomas (1987), 20 B.C.L.R.(2d) 241 (C.A.), refd to. [para. 121].

R. v. Quashie (S.) (2005), 200 O.A.C. 65; 198 C.C.C.(3d) 337 (C.A.), refd to. [para. 121].

R. v. Foti (R.G.) (1993), 88 Man.R.(2d) 218; 51 W.A.C. 218 (C.A.), refd to. [para. 122].

R. v. Keegstra (J.), [1996] 1 S.C.R. 458; 197 N.R. 26; 184 A.R. 217; 122 W.A.C. 217, refd to. [para. 122].

R. v. D.J. (2004), 191 O.A.C. 372; 190 C.C.C.(3d) 529 (C.A.), refd to. [para. 122].

R. v. Ostrowski and Correia, [1990] 2 S.C.R. 82; 107 N.R. 230; 70 Man.R.(2d) 122, refd to. [para. 123].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 142].

R. v. Tran (Q.D.) (2001), 190 N.S.R.(2d) 18; 594 A.P.R. 18; 150 C.C.C.(3d) 481 (C.A.), refd to. [para. 145].

Azoulay v. R., [1952] 2 S.C.R. 495, refd to. [para. 174].

R. v. Prince (C.L.) (2007), 212 Man.R.(2d) 204; 389 W.A.C. 204; 2007 MBCA 15, refd to. [para. 174].

R. v. Richards (L.) (2004), 186 O.A.C. 378; 186 C.C.C.(3d) 333 (C.A.), refd to. [para. 174].

R. v. Karaibrahimovic (J.J.) (2002), 303 A.R. 181; 273 W.A.C. 181; 164 C.C.C.(3d) 431; 2002 ABCA 102, refd to. [para. 177].

R. v. N.M. et al. (2007), 404 A.R. 327; 394 W.A.C. 327; 221 C.C.C.(3d) 180; 2007 NWTCA 3, refd to. [para. 180].

R. v. Rizzuto - see R. v. Mazza.

R. v. Mazza (1975), 24 C.C.C.(2d) 508 (Ont. C.A.), affd. [1978] 2 S.C.R. 907; 21 N.R. 271, refd to. [para. 181].

R. v. Goran (M.) (2008), 234 O.A.C. 283; 2008 ONCA 195, refd to. [para. 183].

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; 2001 SCC 86, refd to. [para. 184].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 187].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 191].

Authors and Works Noticed:

Delisle, Ronald Joseph, Annotation to R. v. Tat (1997), 14 C.R.(5th) 118, generally [para. 85].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (5th Ed. 2008), p. 138 [para. 86].

Stewart, Hamish, Prior Identifications and Hearsay: A Note on R. v. Tat (1998), 3 Can. Crim. L. Rev. 61, generally [para. 85].

Counsel:

M.E. Kucher, for the appellant, J.A. Coutu;

G.G. Brodsky, Q.C., for the appellant, J. Hornbrook;

Z.I. Garber, for the appellant, K.S. Coutu;

R.A. Saull, for the respondent.

These appeals were heard on June 17-18, 2008, by Hamilton, Freedman and Chartier, JJ.A., of the Manitoba Court of Appeal. The following decision of the court was delivered by Freedman, J.A., on December 16, 2008.