R. v. Fischer (P.D.), (2005) 212 B.C.A.C. 199 (CA)

• Judge: Hall, Levine and Thackray, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 10, 2005
• Jurisdiction: British Columbia
• Citations: (2005), 212 B.C.A.C. 199 (CA);2005 BCCA 265

R. v. Fischer (P.D.) (2005), 212 B.C.A.C. 199 (CA);

    350 W.A.C. 199

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. MY.031

Regina (respondent) v. Patrick Daniel

Fischer (appellant)

(CA029301; 2005 BCCA 265)

Indexed As: R. v. Fischer (P.D.)

British Columbia Court of Appeal

Hall, Levine and Thackray, JJ.A.

May 10, 2005.

Summary:

The accused was convicted of the second degree murder of a 16 year old girl, who was strangled. The accused, the last person known to see the girl alive, was suspected but police could not prove he did it. An elaborate undercover operation targeting the accused led to the accused's admission of the killing as a prerequisite to joining the set-up criminal organization. The accused led undercover officers to within 100 yards of the site of the killing and how it was done (strangulation). Neither fact had been disclosed to the public. The first trial resulted in a hung jury. A second trial proceeded immediately thereafter and the accused was convicted. The accused appealed, seeking an acquittal on the basis that the verdict was unreasonable. Alternatively, the accused sought a new trial citing a number of errors by the trial judge.

The British Columbia Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4310

Procedure - Jury - General - Empanelling - [See Criminal Law - Topic 4322.5 ].

Criminal Law - Topic 4322.5

Procedure - Jury - General - Triers - General - In the course of empanelling a jury, an underage high school student acted as a trier under s. 640(2) of the Criminal Code concerning the acceptability of other jurors on the question of whether their ability to judge the evidence in the case would be affected by anything they had previously read or heard about the case - One member of the array was disqualified after responding to a question by referring to the murder of another young woman recently in the area - The British Columbia Court of Appeal rejected an objection to the underage juror participating in the process, adopting the following statement: "in our view, the participation of an ineligible person in the jury selection process was at most an irregularity and the trial judge had a discretion to proceed in the manner that he did. Accordingly, s. 671 of the Criminal Code is a complete answer to this ground of appeal. The [accused was] not prejudiced by a procedure that [he] sought and no miscarriage of justice was occasioned." - See paragraph 26.

Criminal Law - Topic 4611

Procedure - Trials - Venue or place - Change of - General - The accused was tried a second time for murder immediately after the first trial ended in a hung jury - The trial judge refused to order a change of venue for the second trial - The British Columbia Court of Appeal stated that "I would not be prepared to interfere with the decision of the judge to not change the venue as this was a discretionary decision well within his ambit of discretion" - See paragraphs 25 to 26.

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 5339.3 ].

Criminal Law - Topic 5339.3

Evidence and witnesses - Confessions and voluntary statements - Admissibility - Portions of statement - The accused was convicted of murder - He had admitted guilt to undercover officers to gain entry into a fictitious criminal organization - The accused led undercover officers to within 100 yards of the murder site and told them that he strangled the victim - Neither fact had been disclosed to the public - A post-arrest videotaped police interview was primarily exculpatory - In cross-examining the accused on his testimony that he lied about killing the victim to impress the undercover officers, the Crown referenced only a portion of the videotaped statement - The accused's counsel, in re-examining the accused, referred to another portion, but did not request that the entire statement be admitted - The jury's request to see the entire statement was denied by the trial judge - The British Columbia Court of Appeal held that the trial judge did not err in refusing to admit the entire statement, as it was permissible for the Crown to put to an accused in cross-examination a portion of a voluntary statement - The statement contained a great deal of irrelevant material - The accused's denial of guilt in the statement added nothing, as he consistently denied guilt - There were portions of the statement that the accused would not want emphasized - Had the accused requested admission, the trial judge would have been required to exercise his discretion on whether to admit it - The court opined that it was doubtful whether the statement would have been admitted, having regard to the relatively tangential issues touched on by the Crown in using the statement - In any event, the court would have applied the curative provisions of s. 686(1)(b)(iii) to dismiss this ground of appeal as there was no miscarriage of justice - See paragraphs 35 to 52.

Criminal Law - Topic 5342

Evidence and witnesses - Confessions and voluntary statements - Cross-examination on - [See Criminal Law - Topic 5339.3 ].

Cases Noticed:

R. v. Ceca (E.R.) et al. (2004), 190 O.A.C. 220; 189 C.C.C.(3d) 294 (C.A.), refd to. [para. 26].

R. v. Pappajohn (1978), 45 C.C.C.(2d) 67; 5 C.R.(3d) 193 (B.C.C.A.), affd. (1980), 32 N.R. 104; 52 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 41].

R. v. Brooks (1986), 28 C.C.C.(3d) 441 (B.C.C.A.), refd to. [para. 41].

R. v. Frederick (1931), 57 C.C.C. 340 (B.C.C.A.), refd to. [para. 43].

R. v. Simpson and Ochs, [1988] 1 S.C.R. 3; 81 N.R. 267; 38 C.C.C.(3d) 481, refd to. [para. 43].

R. v. Rodney (1988), 46 C.C.C.(3d) 323; 33 B.C.L.R.(3d) 280 (C.A.), refd to. [para. 44].

R. v. Pearce (1979), 69 Cr. App. Rep. 365 (C.A.), refd to. [para. 46].

R. v. McCarthy (1980), 71 Cr. App. Rep. 142 (C.A.), refd to. [para. 46].

R. v. Tooke (1989), 90 Cr. App. Rep. 417 (C.A.), refd to. [para. 46].

R. v. Liu (Y.), [2003] O.T.C. 11; 172 C.C.C.(3d) 79 (Sup. Ct.), refd to. [para. 46].

R. v. Lucas, [1963] 1 C.C.C. 1; 39 C.R. 101 (S.C.C.), refd to. [para. 46].

R. v. Noël (C.) (2002), 295 N.R. 1; 168 C.C.C.(3d) 193; 2002 SCC 67, dist. [para. 53].

Counsel:

R.A. Mulligan, Q.C., for the appellant;

W.L. Rubin, for the respondent.

This appeal was heard on February 9, 2005, at Vancouver, B.C., before Hall, Levine and Thackray, JJ.A., of the British Columbia Court of Appeal.

On May 10, 2005, Hall, J.A., delivered the following judgment for the Court of Appeal.