R. v. Fraser (R.F.), 2016 BCCA 89

• Judge: Kirkpatrick, MacKenzie and Willcock, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 29, 2016
• Jurisdiction: British Columbia
• Citations: 2016 BCCA 89;(2016), 383 B.C.A.C. 260 (CA)

R. v. Fraser (R.F.) (2016), 383 B.C.A.C. 260 (CA);

    661 W.A.C. 260

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. MR.001

Regina (respondent) v. Roy Fraser (appellant)

(CA42171; 2016 BCCA 89)

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

British Columbia Court of Appeal

Kirkpatrick, MacKenzie and Willcock, JJ.A.

February 29, 2016.

Summary:

The accused was convicted by a jury of the second degree murder of Y and the first degree murder of M. The theory of the Crown's circumstantial case, based primarily on motive and opportunity, was that the accused killed Y due to a long-standing dispute and killed M because he witnessed the killing. There was no forensic evidence linking the accused to the killings. The accused appealed his convictions on the grounds that the trial judge (1) failed to instruct the jury, contrary to remarks made in the Crown's closing address, that the accused did not have to prove that someone else killed the victims; (2) erroneously instructed the jury that the accused, like any other accused, had "an obvious interest" in the outcome of the case; and (3) erroneously left first degree murder with the jury where it was not supported by the evidence.

The British Columbia Court of Appeal dismissed the appeal. Even if the Crown's closing address had confused the jury and left them with the impression that the accused had to establish who killed the victims, the trial judge's instructions on the burden of proof and reasonable doubt would have clearly informed them that the Crown bore the onus of proof throughout the trial and that the onus never shifted to the accused to prove his innocence. There was no realistic possibility that the jury understood that the accused had the onus to prove anything. The trial judge's reference to the accused's "obvious interest" in the case, read in the context of the jury charge as a whole, did not displace the presumption of innocence. The jury was not led to believe that the accused had a motive to lie and would do so to escape conviction. The trial judge did not err in refusing to grant a directed verdict of acquittal on the first degree murder charge, as there was evidence upon which a reasonable jury properly instructed could find the accused guilty of first degree murder. The verdict was reasonable and supported by the evidence.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - See paragraphs 27 to 39.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - See paragraphs 13 to 26.

Criminal Law - Topic 4351.2

Procedure - Charge or directions - Judge or jury alone - Directions regarding the presumption of innocence - See paragraphs 13 to 26.

Criminal Law - Topic 4359

Procedure - Charge or directions - Jury or judge alone - Directed verdict of "not guilty" - See paragraphs 61 to 87.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - See paragraphs 27 to 39.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - See paragraphs 61 to 87.

Evidence - Topic 4732

Witnesses - Examination - Impeaching credibility - Motive for untruthfulness - See paragraphs 27 to 39.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 21].

R. v. Briscoe (M.E.) et al. (2010), 400 N.R. 200; 477 A.R. 70; 483 W.A.C. 70; 2010 SCC 12, refd to. [para. 29].

R. v. Laboucan - see R. v. Briscoe (M.E.) et al.

R. v. Siniscalchi (F.) (2010), 291 B.C.A.C. 14; 492 W.A.C. 14; 2010 BCCA 354, refd to. [para. 30].

R. v. Poole (A.D.) (2015), 379 B.C.A.C. 129; 654 W.A.C. 129; 2015 BCCA 464, refd to. [para. 32].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 38].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 38].

R. v. Arcuri (G.) (2001), 274 N.R. 274; 150 O.A.C. 126; 2001 SCC 54, refd to. [para. 62].

R. v. Henderson (W.E.) (2012), 284 Man.R.(2d) 164; 555 W.A.C. 164; 2012 MBCA 93, refd to. [para. 68].

R. v. Dixon (W.R.) (1995), 58 B.C.A.C. 263; 96 W.A.C. 263 (C.A.), refd to. [para. 69].

R. v. Bains (L.) (2015), 339 O.A.C. 306; 2015 ONCA 677, refd to. [para. 71].

R. v. W.H. (2013), 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 W.A.C. 1; 2013 SCC 22, refd to. [para. 72].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 73].

R. v. Bartley (M.J.) (2015), 377 B.C.A.C. 52; 648 W.A.C. 52; 2015 BCCA 384, refd to. [para. 77].

R. v. Denison (J.D.) (2001), 161 B.C.A.C. 169; 263 W.A.C. 169; 2001 BCCA 703, refd to. [para. 78].

R. v. Quesnel (1991), 71 Man.R.(2d) 1; 4 C.R.(4th) 118 (C.A.), refd to. [para. 80].

R. v. MacKay (S.I.) (1992), 17 B.C.A.C. 100; 29 W.A.C. 100; 16 C.R.(4th) 351 (C.A.), refd to. [para. 81].

R. v. Wills (B.) (2014), 318 O.A.C. 99; 2014 ONCA 178, affd. (2014), 465 N.R. 301; 327 O.A.C. 4; 2014 SCC 73, refd to. [para. 86].

R. v. Huang (S.S.) et al. (2016), 382 B.C.A.C. 153; 660 W.A.C. 153; 2016 BCCA 39, refd to. [para. 86].

R. v. Mo - see R. v. Huang (S.S.) et al.

Counsel:

J.J. Blazina, for the appellant;

S.J. Brown, for the respondent.

This appeal was heard on January 27, 2016, at Vancouver, B.C., before Kirkpatrick, MacKenzie and Willcock, JJ.A., of the British Columbia Court of Appeal.

On February 29, 2016, MacKenzie, J.A., delivered the following judgment for the Court of Appeal.