R. v. Dalen (R.), (2008) 264 B.C.A.C. 54 (CA)

• Judge: Ryan, Levine and Kirkpatrick, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 06, 2008
• Jurisdiction: British Columbia
• Citations: (2008), 264 B.C.A.C. 54 (CA);2008 BCCA 530

R. v. Dalen (R.) (2008), 264 B.C.A.C. 54 (CA);

    445 W.A.C. 54

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. JA.013

Regina (respondent) v. Roy Dalen (appellant)

(CA034263; 2008 BCCA 530)

Indexed As: R. v. Dalen (R.)

British Columbia Court of Appeal

Ryan, Levine and Kirkpatrick, JJ.A.

December 18, 2008.

Summary:

The accused appealed his conviction for first degree murder, asserting that the trial judge erred by: permitting the Crown to introduce rebuttal evidence; referring in her jury charge to a 1995 peace bond (a matter that was not in evidence); and permitting Crown counsel to extensively cross-examine the accused on the circumstances of his previous criminal convictions and other acts of bad character, resulting in prejudice that could not be overcome by jury instructions. The accused asserted that as a result of these errors the trial was unfair and a new trial should be ordered.

The British Columbia Court of Appeal dismissed the appeal.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - The accused was charged with first degree murder - The Crown's theory was that the accused killed the victim (Bland) in revenge for Bland having reported to the police in 1999 that the accused had told him that he wanted to kill his former boss (Quail) - As a result of Bland's report to the police, the accused was charged with threatening, to which he pleaded guilty - At the murder trial, the accused denied having made the threats in 1999 - In the Crown's closing address and in the trial judge's jury charge, references were made to a 1995 peace bond that the accused was placed on after making threats against Quail to another third party - There was no evidentiary basis for the references - On appeal from conviction, the accused asserted that the misapprehension of evidence led to an unfair trial - The British Columbia Court of Appeal rejected the assertion - Standing alone, this was a harmless error or an error of a minor nature having no impact on the verdict and causing no prejudice to the accused - The trial judge told the jury that the evidence of threats was relevant only to motive, and not to whether the accused was more likely to have committed the offence, and there was ample other evidence that the accused had threatened Quail - The reference to specific threats made in 1995 and the peace bond were not significant in the context of all of the evidence - The court applied the curative provision on the basis that no miscarriage of justice had occurred - See paragraphs 29 to 36.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - On direct examination at his 22 day murder trial, the accused admitted to five previous convictions: uttering threats against Quail to the murder victim; assault causing bodily harm and uttering threats; theft under $5,000; and three counts of assault - However, he denied having made threats against Quail - On both direct and cross-examination, the accused put his character in issue - The trial judge ruled that the Crown could cross-examine the accused on the circumstances of his previous convictions and on threats made against Quail, but not on any threats to kill or harm victims of his previous offences - The cross-examination lasted for three days - On appeal from conviction, the accused asserted that the cross-examination was too repetitive and exceeded what was "necessary to 'level the playing field' against his assertions of good character" - The accused asserted that it had the effect of inviting the jury to engage in propensity reasoning - The British Columbia Court of Appeal rejected the assertions - The trial judge's instructions were the last words the jury heard before they deliberated - She instructed them on every aspect of the evidence that raised the risk of propensity reasoning - The instructions were clear and direct, and the accused raised no objections - The trial judge was also aware, throughout the cross-examination, of the potential for prejudice to the accused and she limited the questioning where she considered it necessary - The cross-examination, although long and repetitive, was not unfair - It was vigorous, but not abusive - Its length and repetitiveness were in part a result of the accused's contradictory answers - See paragraphs 37 to 62.

Criminal Law - Topic 4379.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding evidence admissible for limited purpose - [See Criminal Law - Topic 4379 ].

Criminal Law - Topic 4381

Procedure - Charge or directions - Jury or judge alone - Misdirection - Effect of - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 4414

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Reference to evidence not admitted - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 4516

Procedure - Trial - Special duties of Crown - Splitting Crown's case - The accused was charged with first degree murder - The Crown's theory was that the accused killed the victim (Bland) in revenge for Bland having reported to the police in 1999 that the accused had told him that he wanted to kill his former boss (Quail) - As a result of Bland's report to the police, the accused was charged with threatening, to which he pleaded guilty - At the murder trial, the accused denied having made the threats in 1999 - The Crown was granted permission to call a rebuttal witness who testified that, in 1996, the accused had told her that he planned to stab Quail - The trial judge ruled that the evidence was relevant to motive - On appeal from conviction, the accused asserted that any evidence of threats made against Quail should have been introduced as part of the Crown's case in chief - The accused pointed out that his feelings about Quail were the foundation of the Crown's theory of motive; that the Crown knew from the time of his arrest that his defence would be alibi, and thus that proof of motive would be important; that the Crown had the evidence in its possession before the trial; and that the accused's denial of the Crown's case did not allow the Crown to introduce additional evidence or reiterate its case in reply - The British Columbia Court of Appeal held that the trial judge did not err in allowing the rebuttal evidence - See paragraphs 13 to 28 and 66 to 76.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where jury charge incomplete or in error - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 5043

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where address by counsel inflammatory or in error - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 5235

Evidence and witnesses - Rebuttal evidence - By Crown - [See Criminal Law - Topic 4516 ].

Criminal Law - Topic 5436

Evidence and witnesses - Cross-examination of accused - Character of accused - [See Criminal Law - Topic 4379 ].

Cases Noticed:

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161, refd to. [para. 14].

R. v. Bruno (1975), 27 C.C.C.(2d) 318 (Ont. C.A.), refd to. [para. 14].

R. v. Krause, [1986] 2 S.C.R. 466; 71 N.R. 61, refd to. [para. 15].

R. v. Aalders, [1993] 2 S.C.R. 482; 154 N.R. 161; 55 Q.A.C. 161; 103 D.L.R.(4th) 700, refd to. [paras. 16, 74].

R. v. Biddle (E.R.), [1995] 1 S.C.R. 761; 178 N.R. 208; 79 O.A.C. 128, refd to. [para. 16].

R. v. Diu (A.B.) et al. (2000), 133 O.A.C. 201; 144 C.C.C.(3d) 481 (C.A.), refd to. [para. 16].

R. v. Campbell (1977), 38 C.C.C.(2d) 6 (Ont. C.A.), refd to. [para. 16].

R. v. Coombs (1977), 38 C.C.C.(2d) 85 (B.C.C.A.), refd to. [para. 16].

R. v. John, [1985] 2 S.C.R. 476; 63 N.R. 141; 11 O.A.C. 391, refd to. [para. 16].

R. v. W.B.C. (2000), 130 O.A.C. 1; 142 C.C.C.(3d) 490 (C.A.), affd. [2001] 1 S.C.R. 530; [2001] N.R. Uned. 267, refd to. [para. 20].

R. v. Ford (H.) (2000), 179 O.A.C. 82; 145 C.C.C.(3d) 336 (C.A.), refd to. [para. 20].

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. 35].

R. v. Fanjoy, [1985] 2 S.C.R. 233; 62 N.R. 253; 11 O.A.C. 381, refd to. [para. 38].

R. v. McNamara (No. 1) (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 42].

R. v. L.K.W. (1999), 126 O.A.C. 39; 138 C.C.C.(3d) 449 (C.A.), refd to. [para. 42].

R. v. E.D.H. (2000), 143 B.C.A.C. 113; 235 W.A.C. 113; 38 C.R.(5th) 74; 2000 BCCA 523, refd to. [para. 42].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 50].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81, refd to. [para. 51].

R. v. Lyttle (M.G.), [2004] 1 S.C.R. 193; 316 N.R. 52; 184 O.A.C. 1; 2004 SCC 5, refd to. [para. 52].

R. v. A.J.R. - see R. v. R.

R. v. R. (1994), 74 O.A.C. 363; 94 C.C.C.(3d) 168 (C.A.), refd to. [para. 55].

R. v. Khan (A.R.) (1998), 109 B.C.A.C. 299; 177 W.A.C. 299; 126 C.C.C.(3d) 523 (C.A.), agreed with [para. 56].

R. v. Chambers (No. 2) (1989), 47 C.C.C.(3d) 503 (B.C.C.A.), revd. [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 60].

Counsel:

G.D. McKinnon, Q.C., for the appellant;

A. Budlovsky, Q.C., for the respondent.

This appeal was heard in Vancouver, British Columbia, on June 6, 2008, by Ryan, Levine and Kirkpatrick, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on December 18, 2008, when the following opinions were filed:

Levine, J.A. - see paragraphs 1 to 65;

Ryan, J.A. - see paragraphs 66 to 76;

Kirkpatrick, J.A. - see paragraph 77.