R. v. Fraser (P.), (2001) 151 O.A.C. 137 (CA)

• Judge: Carthy, Weiler and Feldman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 07, 2001
• Jurisdiction: Ontario
• Citations: (2001), 151 O.A.C. 137 (CA)

R. v. Fraser (P.) (2001), 151 O.A.C. 137 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. NO.030

Her Majesty the Queen (respondent) v. Peter Fraser (appellant)

(C35017)

Her Majesty the Queen (appellant) v. Donald Wayne Earhart and Ryan Kenneth Menard (respondents)

(C26916)

Indexed As: R. v. Fraser (P.)

Ontario Court of Appeal

Carthy, Weiler and Feldman, JJ.A.

November 7, 2001.

Summary:

Fraser, Earhart and Menard were charged with second degree murder. A jury convicted Fraser and acquitted Earhart and Menard. Fraser was sentenced to life imprisonment with no parole for 15 years (see 26 O.T.C. 32). Fraser appealed the conviction and the period of parole ineligibility. The Crown appealed the acquittals.

The Ontario Court of Appeal allowed Fraser's conviction appeal and ordered a new trial. The court dismissed the Crown's appeal.

Editor's note: for prior proceedings involving the same accused see 29 O.T.C. 77 and 29 O.T.C. 204.

Criminal Law - Topic 1265

Murder - Jury charge - General - An accused and two co-accused were charged with second degree murder - The Crown took the position that the accused had intentionally killed the victim and that the co-accused had aided and abetted him - The trial judge instructed the jurors that they could only find the co-accused guilty of manslaughter if they found the accused guilty of manslaughter and not second degree murder - The jury convicted the accused of second degree murder and acquitted the co-accused - The Ontario Court of Appeal held that trial judge had misdirected the jury - A party could be convicted of a different offence than the principal if the party aided and abetted the commission of the actus reus, but lacked the required mens rea for the more serious offence - However, the court affirmed the acquittals where the Crown had not demonstrated with a reasonable degree of certainty that the error might have affected the outcome - See paragraphs 28 to 54.

Criminal Law - Topic 1299

Murder - Defences - Jury charge - Intent and drunkenness - An accused charged with second degree murder raised defences related to his intoxication - The accused appealed his conviction, asserting that the trial judge erred in not providing a "rolled-up" charge on the issue of intent - The Ontario Court of Appeal stated that a "rolled-up" charge would have been preferable - The purpose of a rolled-up charge was to bring to the jury's attention evidence linking the evidence of intoxication with other evidence on the issue of intent - Ordinarily, evidence that has a bearing on intent would already have been raised by way of a justification defence or there may be evidence of provocation directed towards the accused - While the jury might have rejected each individual defence, they might have a reasonable doubt about the accused's intent to commit murder having regard to the cumulative effect of the evidence as a whole - The cumulative effect might result in a verdict of manslaughter as opposed to murder - See paragraphs 19 to 26.

Criminal Law - Topic 1314

Manslaughter - Jury charge - [See Criminal Law - Topic 1265 ].

Criminal Law - Topic 2759

Attempts, conspiracies, accessories and parties - Parties to offences - Jury charge - [See Criminal Law - Topic 1265 ].

Criminal Law - Topic 2760

Attempts, conspiracies, accessories and parties - Parties to offences - Liability of aider or abettor for manslaughter where principal convicted of murder - [See Criminal Law - Topic 1265 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or juge alone - Direction regarding burden of proof and reasonable doubt - The Ontario Court of Appeal held that a jury charge had serious deficiencies with respect to reasonable doubt - The trial judge had instructed the jurors that reasonable doubt meant they had to be "sure" of the accused's guilt, that proof beyond a reasonable doubt did not mean proof to an absolute certainty and that it was a "high standard" - However, at this point in the charge, he did not define the standard on which they had to be "sure", i.e., more than a balance of probabilities - He did not state that the proof beyond a reasonable doubt was closer to absolute certainty than proof on the balance of probabilities - Additionally, he undermined the importance of proof beyond a reasonable doubt, by repeatedly stating that it was a simple concept - He also wrongly suggested that the standard was subjective - Further, the jury was not told that a reasonable doubt was based on reason and common sense and was logically connected to the evidence or absence of evidence - See paragraphs 9 to 14.

Criminal Law - Topic 4356

Procedure - Charge or directions - Jury or judge alone - Directions regarding intent or mens rea - [See Criminal Law - Topic 1299 ].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - An accused, one of three co-accused, appealed his conviction for second degree murder, asserting that the trial judge erred in his jury instructions on after-the-fact conduct (i.e. evidence of flight) - The Ontario Court of Appeal allowed the appeal - The potential probative value of after-the-fact conduct depended on the factual context of each case and, in particular, the parties' positions on the issues - The trial judge erred in not setting out the issues that the evidence of flight was relevant to - The trial judge did advise the jurors that the evidence of flight was "just one piece of evidence", but misdirected that they could use the evidence in deciding whether each accused was guilty as charged - The misdirection resulted in a danger that the jury might erroneously reason that the accused fled because he committed murder as opposed to manslaughter - See paragraphs 15 to 18.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong of miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 1265 ].

Cases Noticed:

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1, refd to. [para. 9].

R. v. Rhee (D.G.) (2001), 275 N.R. 281 (S.C.C.), refd to. [para. 10].

R. v. Russell (M.E.), [2000] 2 S.C.R. 731; 261 N.R. 339; 266 A.R. 379; 228 W.A.C. 379; 149 C.C.C.(3d) 66, refd to. [para. 10, footnote 1].

R. v. Avetysan (A.), [2000] 2 S.C.R. 745; 262 N.R. 96; 195 Nfld. & P.E.I.R. 338; 586 A.P.R. 338; 149 C.C.C.(3d) 77, refd to. [para. 10, footnote 1].

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; 147 C.C.C.(3d) 449, refd to. [para. 10, footnote 1].

R. v. Beauchamp (A.), [2000] 2 S.C.R. 720; 262 N.R. 119; 149 C.C.C.(3d) 58, refd to. [para. 10, footnote 1].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226 (C.A.), refd to. [para. 16].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1; 125 C.C.C.(3d) 385, refd to. [para. 16].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 16].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289, refd to. [para. 17].

R. v. Schell (D.N.) (2000), 136 O.A.C. 163; 148 C.C.C.(3d) 219 (C.A.), refd to. [para. 17].

R. v. Mulligan (C.) (1997), 100 O.A.C. 324; 115 C.C.C.(3d) 559 (C.A.), refd to. [para. 17].

R. v. Daviault (H.), [1994] 3 S.C.R. 63; 173 N.R. 1; 64 Q.A.C. 81; 93 C.C.C.(3d) 21, refd to. [para. 20].

R. v. Robinson (D.), [1996] 1 S.C.R. 683; 194 N.R. 181; 72 B.C.A.C. 161; 119 W.A.C. 161; 105 C.C.C.(3d) 97, refd to. [para. 20].

R. v. Allegretti, [1994] O.J. No. 172 (C.A.), refd to. [para. 25].

R. v. Clow (1985), 44 C.R.(3d) 228 (Ont. C.A.), refd to. [para. 25].

R. v. Bob (1990), 40 O.A.C. 184; 78 C.R.(3d) 102 (C.A.), refd to. [para. 25].

R. v. Nealy (1986), 17 O.A.C. 164; 30 C.C.C.(3d) 460 (C.A.), refd to. [para. 25].

R. v. Desveaux (1986), 13 O.A.C. 1; 26 C.C.C.(3d) 88 (C.A.), refd to. [para. 25].

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].

R. v. Davy - see R. v. Jackson and Davy.

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81; 44 C.C.C.(3d) 193, refd to. [para. 36].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235; 28 C.C.C.(2d) 81, refd to. [para. 36].

R. v. MacKenzie, [1993] 1 S.C.R. 212; 146 N.R. 321; 118 N.S.R.(2d) 290; 327 A.P.R. 290; 78 C.C.C.(3d) 193, refd to. [para. 36].

Counsel:

Jamie C. Klukach and John McInnes, for the respondent the Crown;

David M. Tanovich, for the appellant, Peter Fraser;

Fletcher Dawson, for the respondent, Donald Wayne Earhart;

Julian Falconer and Bibhas Vaze, for the respondent, Ryan Kenneth Menard.

This appeal was on September 10 and 11, 2001, by Carthy, Weiler and Feldman, JJ.A., of the Ontario Court of Appeal. Weiler, J.A., delivered the following judgment for the court on November 7, 2001.