R. v. Duguay (R.), (2007) 320 N.B.R.(2d) 104 (CA)

• Judge: Larlee, Deschênes and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 14, 2007
• Jurisdiction: New Brunswick
• Citations: (2007), 320 N.B.R.(2d) 104 (CA);2007 NBCA 65

R. v. Duguay (R.) (2007), 320 N.B.R.(2d) 104 (CA);

    320 R.N.-B.(2e) 104; 825 A.P.R. 104

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2007] N.B.R.(2d) TBEd. SE.021

Renvoi temp.: [2007] N.B.R.(2d) TBEd. SE.021

Her Majesty the Queen (appellant) v. Robert Duguay (respondent)

(179/04/CA; 2007 NBCA 65)

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

Répertorié: R. v. Duguay (R.)

New Brunswick Court of Appeal

Larlee, Deschênes and Richard, JJ.A.

September 6, 2007.

Summary:

Résumé:

The accused was charged with the first degree murder of Stéphane Ferron and with counselling two others to commit first degree murder on Bruno Ferron. After a trial before judge and jury, the accused was found not guilty of the charges. The Crown appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Editor's note: for related decisions involving the same accused see: [2004] N.B.R.(2d) Uned. 166; 277 N.B.R.(2d) 165, 727 A.P.R. 165; 277 N.B.R.(2d) 183, 727 A.P.R. 183; 277 N.B.R.(2d) 197, 727 A.P.R. 197; 285 N.B.R.(2d) 292, 744 A.P.R. 292; 285 N.B.R.(2d) 365, 744 A.P.R. 365; and 286 N.B.R.(2d) 122, 748 A.P.R. 122.

Criminal Law - Topic 4353

Procedure - Charge or directions - Jury or judge alone - Directions regarding corroboration - The accused was charged with first degree murder and with counselling two others to commit first degree murder - The trial judge instructed the jury that "It is the rule of law that the evidence of one accomplice cannot confirm or support the evidence of another. As a matter of law, I can tell you that Michel West and Sylvain Sévigny [Crown witnesses] are looked upon as accomplices and so you should not consider their evidence to see if they do in fact support one another." - The New Brunswick Court of Appeal held that the instruction was wrong in law - It was no longer a rule of law that the evidence of accomplices (or other witnesses of unsavoury character) could not confirm, corroborate or support the evidence of another - In fact, in some circumstances, a Vetrovec warning might not even be required - However, considering the trial judge's Vetrovec warning and the jury charge as a whole, it could not reasonably be thought, in the concrete reality of the case, that the error had a material bearing on the acquittals - See paragraphs 72 to 87.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - [See Criminal Law - Topic 4353 ].

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - An accused asserted that the rule requiring a threshold finding of reliability should be expanded to cases involving the evidence of jail house informants on the basis that the evidence was inherently unreliable and should not be put to a jury for its consideration without first being vetted for reliability - The New Brunswick Court of Appeal rejected the assertion - In simple terms, what the accused sought was a ruling that when the Crown sought to call jail house informants as witnesses, their evidence was to be considered presumptively inadmissible, unless the trial judge was satisfied that the proffered evidence was reliable under the circumstances - Such a principle would mean that in every case involving a jail house informant as a witness, a voir dire would be required to determine the reliability of the evidence - See paragraph 49.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused was charged with first degree murder and with counselling two others to commit first degree murder - The Crown sought to admit evidence of a jail house informant (Bishop) that the accused had tried to use Bishop to deliver a document to the accused's Montreal contacts who, upon reading the document, would take steps to silence a potentially harmful witness - The trial judge recognized that the evidence had some probative value in that the jury might use it to infer consciousness of guilt, but concluded that the probative value was affected by Bishop's lack of credibility and reliability - The trial judge concluded that the evidence did not satisfy the threshold reliability test and that it would be an error to let it go to the jury as it might be highly prejudicial to the accused - The New Brunswick Court of Appeal held that the trial judge erred in considering Bishop's lack of credibility and/or reliability in determining the evidence's probative value versus it prejudicial effect and in ruling that the evidence could not be admitted - However, the error could not reasonably be thought, in the concrete reality of the case, to have had a material bearing on the acquittals - Bishop would merely have joined the numerous other Crown witnesses of unsavoury character whose evidence did not impress the jury - See paragraphs 30 to 65.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See second and third Criminal Law - Topic 4354 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - The accused was charged with first degree murder and counselling two others to commit first degree murder - In instructing the jury on the second step of the R. v. D.W. analysis, the trial judge stated: "Even if you do not believe the testimony of [the accused], if it leaves you with a reasonable doubt about his guilt you must find him not guilty of that offence. ... If you don't know whom to believe, it means you have a reasonable doubt and you must find [the accused] not guilty. ... Even if the testimony of [the accused] does not raise a reasonable doubt about his guilt, if after considering all the evidence that you do accept, you are not satisfied beyond a reasonable doubt of his guilt, you must acquit." - The Crown asserted that the judge erred because she did not specifically require the jury to consider the evidence as a whole when deciding whether the accused's testimony raised a reasonable doubt as to his guilt even if the jury did not believe his evidence - The New Brunswick Court of Appeal held that the instructions could not reasonably be interpreted as allowing the jury to find a reasonable doubt by relying upon evidence it did not believe, without a consideration of the evidence as a whole - The jurors would have understood as much and would have kept in mind the judge's earlier comments that in making decisions on what was to be believed of any witness, including the accused, they had to consider that witness's testimony in the context of the evidence as a whole - See paragraphs 22 to 24.

Criminal Law - Topic 5332

Evidence and witnesses - Confessions and voluntary statements - Voir dire - Necessity and purpose of - The accused was charged with first degree murder and with counselling two others to commit first degree murder - The Crown sought to admit evidence of a jail house informant (Bishop) respecting the accused's post-offence conduct - The trial judge conducted a voir dire - Bishop testified at the voir dire respecting the post-offence conduct and a confession that the accused had made to Bishop - The trial judge ruled that the evidence of post-offence conduct was inadmissible - The trial continued - Bishop was not called to testify - The accused was found not guilty of the charges - The Crown appealed, asserting, inter alia, that the trial judge erred in excluding the evidence of the confession - The New Brunswick Court of Appeal rejected the assertion - The trial judge only ruled on the post-offence conduct evidence - Had Bishop been called to testify respecting the accused's admission, there would have been no basis to have excluded the evidence - The evidence was either not hearsay or came within an exception to the hearsay rule - A voir dire was not required to determine admissibility as the admission was not made to a person in authority - Having chosen not to adduce the evidence, the Crown could not argue that the trial judge erred by excluding it - See paragraphs 66 to 70.

Criminal Law - Topic 5337

Evidence and witnesses - Confessions and voluntary statements - Admissibility - General - [See Criminal Law - Topic 5332 ].

Criminal Law - Topic 5353.1

Evidence and witnesses - Confessions and voluntary statements - Statements to persons not in authority - [See Criminal Law - Topic 5332 ].

Criminal Law - Topic 5506

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Admissibility - [See second and third Criminal Law - Topic 4354 and Criminal Law - Topic 5332 ].

Criminal Law - Topic 5515

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Corroboration (incl. what constitutes) - [See Criminal Law - Topic 4353 ].

Droit criminel - Cote 4353

Procédure - Exposé ou directives - Juge seul ou avec jury - Instructions concernant la corroboration - [Voir Criminal Law - Topic 4353 ].

Droit criminel - Cote 4354

Procédure - Exposé ou directives - Juge seul ou avec jury - Instructions concernant les plaidoyers ou la preuve des témoins, des coaccusés et des complices - [Voir Criminal Law - Topic 4354 ].

Droit criminel - Cote 4377

Procédure - Exposé ou directives - Juge seul ou avec jury - Instructions concernant la crédibilité des témoins - [Voir Criminal Law - Topic 4377 ].

Droit criminel - Cote 4379

Procédure - Exposé ou directives - Juge seul ou avec jury - Instructions concernant la preuve de la moralité ou de la crédibilité du prévenu - [Voir Criminal Law - Topic 4379 ].

Droit criminal - Cote 5332

Preuve et témoins - Confessions et déclarations volontaires - Voir-dire - Nécessité et objet - [Voir Criminal Law - Topic 5332 ].

Droit criminel - Cote 5337

Preuve et témoins - Confessions et déclarations volontaires - Admissibilité - Généralités - [Voir Criminal Law - Topic 5337 ].

Droit criminel - Cote 5353.1

Preuve et témoins - Confessions et déclarations volontaires - Déclarations faites à des personnes qui ne sont pas en situation d'autorité - [Voir Criminal Law - Topic 5353.1 ].

Droit criminel - Cote 5506

Preuve et témoins - Preuve des complices, co-défendeurs, indicateurs, etc. - Admissibilité - [Voir Criminal Law - Topic 5506 ].

Droit criminel - Cote 5515

Preuve et témoins - Preuve des complices, co-défendeurs, indicateurs, etc. - Corroboration (y compris éléments constitutifs) - [Voir Criminal Law - Topic 5515 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 22].

R. v. Kerton (R.E.) et al. (2002), 250 N.B.R.(2d) 177; 650 A.P.R. 177; 2002 NBCA 40, refd to. [para. 23].

R. v. Doiron (E.), [2005] N.B.R.(2d) Uned. 180; 2005 NBCA 109, refd to. [para. 26].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 27].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 27].

R. v. Sutton (K.M.), [2000] 2 S.C.R. 595; 262 N.R. 384; 230 N.B.R.(2d) 205; 593 A.P.R. 205, refd to. [para. 27].

R. v. Tran (Q.D.) (2001), 190 N.S.R.(2d) 18; 594 A.P.R. 18; 2001 NSCA 2, refd to. [para. 31].

R. v. Pascoe (D.P.) (1997), 96 O.A.C. 337; 32 O.R.(3d) 37 (C.A.), refd to. [para. 36].

R. v. A.K. and N.K. (1999), 125 O.A.C. 1; 45 O.R.(3d) 641 (C.A.), refd to. [para. 36].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 36].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 40].

R. v. Cook (D.W.), [1997] 1 S.C.R. 1113; 210 N.R. 197; 188 N.B.R.(2d) 161; 480 A.P.R. 161, refd to. [para. 40].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 40].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 45].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 45].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 45].

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, refd to. [para. 45].

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. 45].

R. v. Bari (A.) (2006), 308 N.B.R.(2d) 247; 797 A.P.R. 247; 2006 NBCA 119, refd to. [para. 48].

R. v. Humaid (A.A.) (2006), 210 O.A.C. 68; 81 O.R.(3d) 456 (C.A.), dist. [para. 52].

R. v. Brown (D.A.R.) (2000), 146 Man.R.(2d) 125 (Q.B.), refd to. [para. 56].

R. v. S.L.M., [1999] B.C.T.C. 30 (S.C.), refd to. [para. 57].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 141 C.C.C.(3d) 321; 2000 SCC 11, refd to. [para. 59].

R. v. MacDonald (L.R.) (2000), 184 N.S.R.(2d) 1; 573 A.P.R. 1 (C.A.), leave to appeal refused (2000), 265 N.R. 200; 190 N.S.R.(2d) 400; 594 A.P.R. 400 (S.C.C.), refd to. [para. 61].

R. v. Dhillon (S.) (2002), 161 O.A.C. 231 (C.A.), refd to. [para. 61].

R. v. Campbell (D.W.) (2005), 203 O.A.C. 360 (C.A.), refd to. [para. 61].

R. v. Assoun (G.E.) (2006), 244 N.S.R.(2d) 96; 774 A.P.R. 96 (C.A.), leave to appeal refused (2006), 359 N.R. 392 (S.C.C.), refd to. [para. 61].

R. v. Mallory (R.) et al. (2007), 220 O.A.C. 239; 2007 ONCA 46, refd to. [para. 70].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 73].

R. v. Winmill (T.E.) (1999), 116 O.A.C. 201; 42 O.R.(3d) 582 (C.A.), refd to. [para. 74].

R. v. Pollock (R.) et al. (2004), 188 O.A.C. 37 (C.A.), leave to appeal refused (2005), 337 N.R. 191; 204 O.A.C. 399 (S.C.C.), refd to. [para. 74].

R. v. Trudel - see R. v. Sauvé (J.) et al.

R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), leave to appeal refused (2005), 336 N.R. 195; 204 O.A.C. 395 (S.C.C.), refd to. [para. 80].

R. v. Pedersen (1979), 16 A.R. 508; 47 C.C.C.(3d) 375 (C.A.), refd to. [para. 81].

R. v. Iles (M.) (2007), 237 B.C.A.C. 231; 392 W.A.C. 231; 217 C.C.C.(3d) 529; 2007 BCCA 125, refd to. [para. 82].

Authors and Works Noticed:

Ferguson, Gerry A., and Bouck, John C., Canadian Criminal Jury Instructions, sect. 4.81 [para. 81].

Canadian Judicial Council, Jury Instructions in Criminal Matters, generally [para. 89].

CRIMJI - see Ferguson, Gerry A., and Bouck, John C., Canadian Criminal Jury Instructions.

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (4th Ed. 2005), pp. 33, 38 to 41 [para. 54].

Roach, Kent, Unreliable Evidence and Wrongful Convictions: The Case for Excluding Tainted Identification Evidence and Jailhouse and Coerced Confessions (2007),

52 Crim. L.Q. 210, p. 225 [para. 58].

Watt, David, Ontario Specimen Jury Instructions (Criminal) (2003), generally [para. 89].

Counsel:

Avocats:

Paul J. Veniot, Q.C., and Bernard S. Roux, for the appellant;

James J. Matheson, for the respondent.

This appeal was heard on February 14, 2007, by Larlee, Deschênes and Richard, JJ.A., of the New Brunswick Court of Appeal. The following decision of the court was delivered in both official languages on September 6, 2007, by Deschênes, J.A.