R. v. Dakin (W.E.), (1995) 80 O.A.C. 253 (CA)

• Judge: Morden, A.C.J.O., Catzman and Abella, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 02, 1995
• Jurisdiction: Ontario
• Citations: (1995), 80 O.A.C. 253 (CA)

R. v. Dakin (W.E.) (1995), 80 O.A.C. 253 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. William Edward Dakin (appellant)

(File No. C7128)

Indexed As: R. v. Dakin (W.E.)

Ontario Court of Appeal

Morden, A.C.J.O., Catzman and Abella, JJ.A.

April 7, 1995.

Summary:

The accused was charged with first degree murder in the death of his girlfriend and her 17 year old daughter. He pleaded guilty to manslaughter to both charges. The Crown refused to accept the plea. The jury con­victed the accused of both counts of first degree murder. The accused appealed.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (re intent and drunkenness) - [See Criminal Law - Topic 4352 ; both Criminal Law - Topic 4357 ; and Criminal Law - Topic 4365 ].

Criminal Law - Topic 4351

Procedure - Jury charge - Direction re­garding burden of proof and reasonable doubt - The accused was charged with the first degree murders of his girlfriend and her daughter - He poured gasoline on the women and set them afire - They suffered severe burns to 80-90% of their bodies and died in hospital several weeks later - The trial judge misdirected the jury re­specting the burden of proof, particularly as it referred to utterances of the victims which implicated the accused - He redi­rected correctly - The Ontario Court of Appeal rejected the misdirection as a ground of appeal - The jury could not have been misled, where the trial judge repeatedly charged and recharged the jury correctly on the burden of proof on the Crown to satisfy the jury beyond a reason­able doubt - See paragraphs 5 to 8.

Criminal Law - Topic 4352

Procedure - Jury charge - Directions on evidence - General - The accused was convicted of the first degree murder of his girlfriend and her daughter - He alleged a drunken intent to commit suicide and an accidental spilling and igniting of gasoline - On appeal he submitted that the trial judge erroneously instructed the jury re­specting planning and deliberation - The Ontario Court of Appeal held that the jury was correctly directed that the Crown had to prove planning and deliberation beyond a reasonable doubt and that, if they were satisfied that the accused was capable of planning, they still had to consider the evidence of intoxication to determine whether in fact he did so - See paragraphs 11 to 14.

Criminal Law - Topic 4357

Procedure - Jury charge - Directions regarding defences and theory of the de­fence - The accused was convicted of the first degree murder of his girlfriend and her daughter - He alleged a drunken in­tention to kill himself and an accidental spilling and igniting of gasoline - He appealed, submitting, inter alia, that the trial judge failed to distinguish between the degree of intoxication required to negative intent and the degree of intoxication that might negative planning and deliberation - The Ontario Court of Appeal rejected the submission, holding that the trial judge properly directed the jury on the subject of intoxication - See paragraphs 15 to 16.

Criminal Law - Topic 4357

Procedure - Jury charge - Directions regarding defences and theory of the de­fence - The accused was convicted of the first degree murder of his girlfriend and her daughter after he poured gasoline on the women and set them afire - He alleged a drunken intention to kill himself and an accidental spilling and igniting of the gasoline - On appeal the accused claimed that the trial judge failed to explain to the jury the position of the defence that the intent with which he entered the home was not the intent required for murder but was an intent to commit suicide - The Ontario Court of Appeal held that the theory of the defence was properly put to the jury - See paragraphs 9 to 10.

Criminal Law - Topic 4365

Procedure - Jury charge - Directions regarding expert evidence - The accused was convicted of the first degree murder of his girlfriend and her daughter - He al­leged a drunken intention to kill himself and an accidental spilling and igniting of the gasoline - A psychiatrist testified about the effects of alcohol on the ability to form intent and to plan and deliberate - On appeal, the accused submitted that much of the psychiatrist's evidence was an expression of common sense rather than psychiatric expertise - The Ontario Court of Appeal held that the trial judge cor­rectly charged the jury that they could disregard the evidence of any witness, including the experts - See paragraphs 26 to 29.

Criminal Law - Topic 5360

Evidence and witnesses - Photographs, movies, videotapes, etc. - General prin­ciples - Admissibility - The accused was convicted of the first degree murder of his girlfriend and her daughter - He poured gasoline over them and set them afire - They were burned over 80-90% of their bodies - They died several weeks later - On appeal, the accused claimed that the trial judge erred in admitting into evidence six transparencies of the victims' burns, alleging that their prejudicial effect out­weighed their probative value - The On­tario Court of Appeal rejected the claim - See paragraphs 23 to 25.

Criminal Law - Topic 5408

Evidence and witnesses - Witnesses - Statements prejudicial to the accused - The accused was convicted of the first degree murder of his girlfriend and her daughter - He poured gasoline over them and set them afire - They suffered burns over 80-90% of their bodies - They were taken to hospital - On appeal, the accused argued that the statements made by the victims to an emergency room nurse should not have been admitted into evi­dence - The Ontario Court of Appeal held that the trial judge correctly admitted the utterances - See paragraphs 17 to 22.

Cases Noticed:

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113; [1987] 4 W.W.R. 193; 57 C.R.(3d) 97; 32 C.C.C.(3d) 481, refd to. [para. 8].

R. v. Clark (1983), 7 C.C.C.(3d) 46 (Ont. C.A.), refd to. [para. 18].

R. v. Khan (1988), 27 O.A.C. 142; 42 C.C.C.(3d) 197 (C.A.), refd to. [para. 18].

Ratten v. R., [1972] A.C. 378 (P.C.), refd to. [para. 18].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 19].

R. v. Gowland (1978), 45 C.C.C.(2d) 303 (Ont. C.A.), refd to. [para. 29].

Authors and Works Noticed:

McCormick on Evidence (4th Ed. 1992), pp. 218 to 219 [para. 20].

Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), pp. 261 to 262 [para. 19].

Counsel:

Alan Gold, for the appellant;

Carol Brewer, for the respondent.

This appeal was heard on March 2, 1995, before Morden A.C.J.O., Catzman and Abella, JJ.A., of the Ontario Court of Ap­peal. On April 7, 1995, the following judg­ment was delivered by the court.