R. v. Elder (C.J.), (2015) 599 A.R. 385

• Judge: Berger, Rowbotham and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 26, 2014
• Citations: (2015), 599 A.R. 385;2015 ABCA 126

R. v. Elder (C.J.) (2015), 599 A.R. 385; 643 W.A.C. 385 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. AP.024

Her Majesty the Queen (respondent) v. Christopher John Elder (appellant)

(1303-0091-A; 2015 ABCA 126)

Indexed As: R. v. Elder (C.J.)

Alberta Court of Appeal

Berger, Rowbotham and Bielby, JJ.A.

April 2, 2015.

Summary:

Elder appealed his conviction for second degree murder.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 1265.2

Murder - General principles - Jury charge - Second degree murder - DeFord led the police to the burial location of the body of Belanger some two years after he went missing - He admitted to participating in the events which led to the death of Belanger but also implicated Elder - Elder denied participating in the assault which led to Belanger's death - Elder was convicted of second degree murder by a jury - Elder appealed, asserting that the trial judge incorrectly instructed the jury on the conduct requirement for liability as a joint principal, by stating that such liability was established through the Crown proving a joint plan between him and DeFord to kill, without reference to the additional mandatory requirement, that Elder had to also have participated in the assault on Belanger which led to his death - The Alberta Court of Appeal dismissed the appeal - It was difficult to conceive of any scenario in which the jury, considering all the evidence and reasonable inferences to be drawn from that evidence, would have been left with any reasonable doubt that DeFord alone assaulted Belanger in the manner which caused his death, with Elder present but not participating in the assault to any degree - That conclusion was open to the jury, but no logical analysis of the evidence supported this interpretation - Additionally, DeFord's credibility was bolstered by the fact that he admitted wrongdoing in a context which might well lead to a finding of his own guilt to the offence of murder, or at least manslaughter, in his testimony against Elder - The trial judge made no reversible error by using words in the charge which misled the jury into believing that Elder was guilty of murder as a joint principal even if he did not participate in the commission of the actual assault - See paragraphs 14 to 29.

Criminal Law - Topic 1266

Murder - Jury charge - Included or alternative offences - DeFord led the police to the burial location of the body of Belanger some two years after he went missing - He admitted to participating in the events which led to the death of Belanger but also implicated Elder - Elder denied participating in the assault which led to Belanger's death - Elder was convicted of second degree murder by a jury - Elder appealed, asserting that it was an error for the trial judge not to include a definition of the mental requirement, or mens rea for manslaughter in the charge to the jury, as this was an included offence to murder and it was open to consider guilt of this "lesser" charge on the evidence before it - The Alberta Court of Appeal dismissed the appeal - The provisions in the charge relating to the mens rea required for murder also adequately addressed that required for manslaughter - The trial judge told the jury that for the Crown to establish that a death caused by an unlawful act was murder, it had to prove beyond a reasonable doubt that (a) Elder meant to cause Belanger's death, or (b) Elder meant to cause Belanger bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not - She went on to say that if the jury found Elder had committed an unlawful act causing death but lacked either of these required intentions, it should find him guilty of manslaughter - See paragraphs 30 to 35.

Criminal Law - Topic 2748

Attempts, conspiracies, accessories and parties - Parties to offence - Principal offender - Who constitutes - [See Criminal Law - Topic 1265.2 ].

Cases Noticed:

R. v. Waite (A.D.) (2013), 556 A.R. 129; 584 W.A.C. 129; 2013 ABCA 257, refd to. [para. 12].

R. v. Araya (N.) (2015), 468 N.R. 114; 329 O.A.C. 1; 2015 SCC 11, refd to. [para. 13].

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 15].

R. v. Briscoe (M.E.) et al., [2010] 1 S.C.R. 411; 400 N.R. 216; 477 A.R. 86; 483 W.A.C. 86; 2010 SCC 13, refd to. [para. 15].

R. v. Vu - see R. v. Hernandez (J.) et al.

R. v. Hernandez (J.) et al. (2012), 433 N.R. 77; 324 B.C.A.C. 40; 551 W.A.C. 40; 2012 SCC 40, refd to. [para. 15].

R. v. R.M.F. (2014), 575 A.R. 4; 612 W.A.C. 4; 2014 ABCA 139, refd to. [para. 15].

R. v. Tomlinson (B.) et al. (2014), 317 O.A.C. 1; 2014 ONCA 158, refd to. [para. 15].

R. v. Ball (A.G.) et al. (2011), 298 B.C.A.C. 166; 505 W.A.C. 166; 267 C.C.C.(3d) 532; 2011 BCCA 11, refd to. [para. 16].

R. v. Hughes (B.B.) (2011), 305 B.C.A.C. 112; 515 W.A.C. 112; 271 C.C.C.(3d) 448; 2011 BCCA 220, refd to. [para. 16].

R. v. Pickton (R.W.), [2010] 2 S.C.R. 198; 404 N.R. 198; 290 B.C.A.C. 264; 491 W.A.C. 264; 2010 SCC 32, refd to. [para. 16].

R. v. Unger (K.W.) and Houlahan (T.L.) (1993), 85 Man.R.(2d) 284; 41 W.A.C. 284; 83 C.C.C.(3d) 228 (C.A.), refd to. [para. 16].

R. v. Mercer (S.M.) (2005), 210 B.C.A.C. 109; 348 W.A.C. 109; 202 C.C.C.(3d) 130; 2005 BCCA 144, refd to. [para. 17].

R. v. Macklin (1838), 2 Lewin 225, refd to. [para. 17].

R. v. Mena (1987), 20 O.A.C. 50; 34 C.C.C.(3d) 304 (C.A.), refd to. [para. 17].

R. v. McMaster (R.A.) et al., [1996] 1 S.C.R. 740; 194 N.R. 278; 181 A.R. 199; 116 W.A.C. 199, refd to. [para. 17].

R. v. Forknall (P.C.) (2003), 176 B.C.A.C. 284; 290 W.A.C. 284; 172 C.C.C.(3d) 61; 2003 BCCA 43, refd to. [para. 17].

R. v. L.I.H. (2003), 177 Man.R.(2d) 178; 304 W.A.C. 178; 176 C.C.C.(3d) 526; 2003 MBCA 97, refd to. [para. 17].

R. v. Jaw (S.G.), [2000] 2 S.C.R. 745; 464 A.R. 208; 393 N.R. 246; 2009 SCC 42, refd to. [para. 22].

R. v. MacKenzie, [1993] 1 S.C.R. 212; 146 N.R. 321; 118 N.S.R.(2d) 290; 327 A.P.R. 290, refd to. [para. 22].

R. v. Jackson and Davy, [1993] 4 S.C.R. 573; 162 N.R. 113; 68 O.A.C. 161; 86 C.C.C.(3d) 385, refd to. [para. 33].

Counsel:

J.B. Dartana, for the respondent;

D.J. Song, for the appellant.

This appeal was heard on November 26, 2014, by Berger, Rowbotham and Bielby, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was delivered on April 2, 2015.