R. v. Hibbert (K.R.), (2002) 165 B.C.A.C. 161 (SCC)

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 25, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2002), 165 B.C.A.C. 161 (SCC);2002 SCC 39;163 CCC (3d) 129;50 CR (5th) 209;287 NR 111;[2002] ACS no 40;[2002] SCJ No 40 (QL);165 BCAC 161;JE 2002-801;211 DLR (4th) 223;[2002] 2 SCR 445;53 WCB (2d) 69

R. v. Hibbert (K.R.) (2002), 165 B.C.A.C. 161 (SCC);

    270 W.A.C. 161

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2002] B.C.A.C. TBEd. AP.064

Kenneth Roydon Hibbert (appellant) v. Her Majesty The Queen (respondent)

(28021; 2002 SCC 39; 2002 CSC 39)

Indexed As: R. v. Hibbert (K.R.)

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

April 25, 2002.

Summary:

The accused appealed his jury conviction for attempted murder, submitting that the trial judge erred in instructing the jury on identification evidence and in instruct­ing the jury that they could infer guilt from a disbe­lieved alibi when there was no extraneous evidence of fabrica­tion or con­trivance. The Crown conceded the latter error, but sought application of the curative provision of s. 686(1)(b)(iii) of the Criminal Code on the ground that the verdict would necessarily have been the same not­with­standing the error.

The British Columbia Court of Appeal, in a judgment reported 134 B.C.A.C. 281; 219 W.A.C. 281, dismissed the appeal. There was no error in the jury instructions on identification evidence. Although the trial judge erred in instructing the jury that they could infer guilt from a disbelieved alibi, absent evidence of fabrication to mislead, the court invoked s. 686(1)(b)(iii) to dismiss the appeal on the ground that, on the whole of the evidence, the verdict would necessarily have been the same. The accused appealed.

The Supreme Court of Canada, Bastarache and L'Heureux-Dubé, JJ., dissenting, allowed the appeal and remitted the matter for a new trial. Section 686(1)(b)(iii) could not be used to overcome a jury charge on the inference of guilt from the rejected alibi which erro­neously provided the jury with a direct route to conviction.

Criminal Law - Topic 207

General principles - Common law de­fences - Alibi - The Supreme Court of Canada summarized the law respecting the rejec­tion of a defence of alibi: "In the absence of evidence of concoction (delib­erate fabri­cation) an alibi that is disbe­lieved has no evidentiary value. A disbe­lieved alibi is insufficient to support an inference of concoction or deliberate fabri­cation. There must be other evidence from which a reasonable jury could conclude that the alibi was deliberately fabricated and that the accused was involved in that attempt to mislead the jury. It is the attempt to deceive, and not the failed alibi, that sup­ports an inference of consciousness of guilt. In appropriate cases, for instance if there were multiple accused, the jury should be instructed that the fabricated alibi may be used to place the accused at the scene of the crime, but fall short of directly implicating him in its commission. When there is evidence that an alibi was fabricated, at the instigation or with the knowledge and approval of the accused, that evidence may be used by the jury to support an inference of consciousness of guilt. In cases where such an inference is available, the jury should be instructed that it may, not must, be drawn. A fabricated alibi is not conclusive evidence of guilt." - See paragraph 67.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identi­fication - The accused was charged with attempted murder - Both the victim and a Crown eyewitness saw a photograph of the accused in a photo line-up but could not positively identify him as the perpetrator - Both saw news coverage of the accused leaving the courthouse after being charged - Both made an in-dock identification of the accused and acknowledged identifying the same person at the preliminary hearing and at an earlier trial - The accused alleged that the trial judge did not ade­quately warn the jury about the specific weaknesses in the identification evidence - The British Columbia Court of Appeal held that there was sufficient warning in the jury charge to alert them of the weak­ness of this evi­dence - The Supreme Court of Canada stated that while the directions on identifi­cation evidence were not so deficient as to constitute an error of law, a stronger warn­ing on the reliability (weight) of the in-court identification of the accused would have been appropriate - See para­graphs 44 to 53.

Criminal Law - Topic 4372

Procedure - Charge or directions - Jury or judge alone - Directions respecting alibi evidence or explanation by accused - [See Criminal Law - Topic 207 ].

Criminal Law - Topic 4392

Procedure - Charge or directions - Jury or judge alone - Directions re inferences of guilt (incl. consciousness of guilt) - [See Criminal Law - Topic 207 ].

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where jury charge in error - The accused was charged with attempted murder - The trial judge errone­ously told the jury that they could infer guilt from a disbelieved alibi where the Crown did not allege fabrication or con­trivance to mislead - The Crown had a strong cir­cumstantial case, including DNA and hair analysis evidence together with other evidence of identification - The Supreme Court of Canada held that the appellate court erred in dismissing the appeal by applying s. 686(1)(b)(iii) of the Criminal Code - The proviso could not be used to overcome a jury charge on the inference of guilt from the rejected alibi which erron­eously provided the jury with a direct route to conviction - Notwith­stand­ing the circumstantial evidence, it was not a fore­gone conclusion that another reason­able jury, properly instructed, would inevi­tably convict - See paragraphs 68 to 75.

Cases Noticed:

R. v. Tessier (R.J.) (1997), 87 B.C.A.C. 269; 143 W.A.C. 269; 113 C.C.C.(3d) 538 (C.A.), refd to. [paras. 54, 97].

R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C.(2d) 424 (Ont. C.A.), refd to. [para. 57].

R. v. Witter (V.A.) (1996), 89 O.A.C. 1; 105 C.C.C.(3d) 44 (C.A.), refd to. [para. 57].

R. v. Coutts (S.) et al. (1998), 110 O.A.C. 353; 16 C.R.(5th) 240 (C.A.), leave to appeal dismissed [1999] 1 S.C.R. xii; 239 N.R. 193; 123 O.A.C. 199, refd to. [para. 57].

R. v. Krishantharajah (L.) (1999), 118 O.A.C. 251; 133 C.C.C.(3d) 157 (C.A.), refd to. [paras. 57, 97].

R. v. Carey (1996), 113 C.C.C.(3d) 74 (Que. C.A.), refd to. [para. 57].

R. v. Michaud (F.), [1996] 2 S.C.R. 458; 198 N.R. 231; 178 N.B.R.(2d) 308; 454 A.P.R. 308, refd to. [para. 58].

R. v. Hibbert (K.R.) (1996), 78 B.C.A.C. 277; 128 W.A.C. 277 (C.A.), refd to. [paras. 68, 104].

Colpitts v. R., [1965] S.C.R. 739, refd to. [para. 71].

R. v. Wildman, [1984] 2 S.C.R. 311; 55 N.R. 27; 5 O.A.C. 241, refd to. [para. 71].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 71].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [paras. 71, 94].

R. v. Charlebois (P.), [2000] 2 S.C.R. 674; 261 N.R. 239, refd to. [paras. 71, 90].

R. v. Khan (M.A.) (2001), 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161 (S.C.C.), refd to. [paras. 71, 94].

R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1; 43 Man.R.(2d) 161; 27 C.C.C.(3d) 97, refd to. [para. 78].

R. v. Turnbull, [1976] 3 All E.R. 549 (C.A.), refd to. [para. 79].

R. v. Canning, [1986] 1 S.C.R. 991; 68 N.R. 80; 74 N.S.R.(2d) 90; 180 A.P.R. 90, refd to. [para. 79].

R. v. Gagnon (Y.R.J.) et al. (2000), 136 O.A.C. 116 (C.A.), refd to. [para. 88].

R. v. Edwardson (D.) (1993), 22 B.C.A.C. 230; 38 W.A.C. 230; 77 B.C.L.R.(2d) 362 (C.A.), refd to. [para. 91].

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. 94].

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1, refd to. [para. 94].

R. v. Mahoney, [1982] 1 S.C.R. 834; 41 N.R. 582, refd to. [para. 96].

R. v. Demeter (1975), 25 C.C.C.(2d) 417 (Ont. C.A.), refd to. [para. 103].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a)(ii), sect. 686(1)(a)(iii), sect. 686(1)(b)(iii) [para. 42].

Authors and Works Noticed:

Cory, Peter D., The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Enti­tlement to Compensation (2001), pp. 31 to 34 [para. 51].

Ferguson, Gerry A., and Bouck, John C., Canadian Criminal Jury Instructions (2nd Ed. 1989), vol. 2, pp. 8.04-1 to 8.04-4 [paras. 56, 97].

Counsel:

J.M. Peter Firestone and Catherine Tyhurst, for the appellant;

Kate Ker, for the respondent.

Solicitors of Record:

Firestone & Tyhurst, Victoria, B.C., for the appellant;

Ministry of the Attorney General, Van­couver, B.C., for the respondent.

This appeal was heard on October 10, 2001, before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Basta­rache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

On April 25, 2002, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Arbour, J. (McLachlin, C.J.C., Gonthier, Iacobucci, Major, Binnie and LeBel, JJ., concurring) - see paragraphs 1 to 76;

Bastarache, J., dissenting (L'Heureux-Dubé, J., concurring) - see para­graphs 77 to 107.