R. v. Huard (S.G.), 2013 ONCA 650

• Judge: MacFarland, Watt and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 27, 2013
• Jurisdiction: Ontario
• Citations: 2013 ONCA 650;(2013), 311 O.A.C. 181 (CA)

R. v. Huard (S.G.) (2013), 311 O.A.C. 181 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. OC.029

Her Majesty the Queen (respondent) v. Shane Huard (appellant)

(C52019; 2013 ONCA 650)

Indexed As: R. v. Huard (S.G.)

Ontario Court of Appeal

MacFarland, Watt and Epstein, JJ.A.

October 29, 2013.

Summary:

The appellant and Zoldi were arrested for killing Hutchinson. They were jointly indicted, but tried separately. One jury convicted the appellant of first degree murder as an aider or abettor. Another jury convicted Zoldi of second degree murder. The appellant's counsel argued that the trial judge's charge to the jury was inadequate and unbalanced in favour of the Crown. He submitted that the defence position was not put to the jury in such a way that the jury could appreciate its substance and how the evidence adduced at trial supported that position. Further, he argued that the appellant's conviction of first degree murder as an aider or abettor offended s. 7 of the Charter because the principal, Zoldi, was convicted only of second degree murder.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 681

Liberty - Principles of fundamental justice - General - [See Criminal Law - Topic 2743.1 ].

Civil Rights - Topic 3125

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - General - [See Criminal Law - Topic 2743.1 ].

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Principles of fundamental justice - [See Criminal Law - Topic 2743.1 ].

Criminal Law - Topic 2743.1

Attempts, conspiracies, accessories and parties - Parties to offences - Aider or abettor convicted of more serious offence than principal - The appellant and Zoldi were arrested for killing Hutchinson - They were jointly indicted, but tried separately - One jury convicted the appellant of first degree murder as an aider or abettor - Another jury subsequently convicted Zoldi of second degree murder - The appellant's counsel argued that the appellant's conviction of first degree murder as an aider or abettor offended s. 7 of the Charter because the principal, Zoldi (the shooter), was convicted only of second degree murder - The appellant's counsel said that it was (or should be) a principle of fundamental justice that the less morally culpable should not be convicted of a greater more serious offence or punished more severely than the more morally culpable - The Ontario Court of Appeal rejected this ground of appeal for several reasons - First, the decision in R. v. Rémillard (1921 SCC) made it clear that an aider or abettor could be convicted of a more serious offence than the principal - Second, the jury verdict in Zoldi's case was only conclusive as between the Crown and Zoldi - It was not an in rem determination of the legal character of the unlawful killing of Hutchinson - Third, to hold otherwise would be to ignore the effect of ss. 21 and 23.1 of the Criminal Code - Section 21 abolished the distinction between principals and secondary participants: all were parties to the commission of an offence - Section 23.1 permitted conviction of an aider or an abettor even if the principal could not be convicted - Fourth, the principle for which the appellant contended would be of uncertain application - In this case, it would require an ex post facto "correction" of a verdict untainted by error on the basis of an irrelevant consideration (the subsequent verdict of another jury in another trial) - Finally, the court was unable to fashion any principle of fundamental justice that would warrant the remedy sought by the appellant - See paragraphs 100 to 105.

Criminal Law - Topic 2759

Attempts, conspiracies, accessories and parties - Parties to offences - Jury charge - [See Criminal Law - Topic 4357 ].

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - [See Criminal Law - Topic 4357 ].

Criminal Law - Topic 4357

Procedure - Jury charge - Directions regarding defences and theory of the defence - A jury convicted the appellant of first degree murder as an aider or abettor - The appellant's counsel argued that the trial judge's charge to the jury was inadequate and unbalanced in favour of the Crown - He submitted that the defence position was not put to the jury in such a way that the jury could appreciate its substance and how the evidence adduced at trial supported that position - The Ontario Court of Appeal dismissed this ground of appeal for several reasons - First, the defence advanced by very experienced counsel at trial was that the appellant was not present when the victim was shot and beaten and the Crown's case did not prove his presence at the killing - Trial counsel made no complaint about the manner in which the defence position and the evidence supportive of it was left to the jury - Trial counsel drafted the position at the trial judge's request and it was read to the jury in the terms in which it was drafted - The defence advanced and the supportive evidence was fully and fairly put to the jury, at least according to trial counsel - Further, the appellant advanced no claim of error in the substance of what the trial judge told the jury about the basis upon which the appellant's liability as an aider or an abettor in the offences of manslaughter, second degree murder, and first degree murder was to be decided - Second, reduced to its essentials, the appellant's complaint was that the trial judge failed to mention to the jury alternative inferences consistent with the position of the defence and available on the evidence adduced at trial - The trial judge instructed the jury on the position of the defence and on the exculpatory inferences counsel suggested should be drawn from it - The closing address of defence counsel contained a similar recital - The position of the defence and supportive evidence was fairly put to the jury - Third, the submission that the charge was incomplete and unbalanced could not be sustained in light of the conduct of the defence at trial - The pre-charge conference extended over five court days - Trial counsel was content with the use of the decision trees and the instructions given about them - He took no objection to the legal instructions or the evidentiary references - He made no objection after the charge was delivered - See paragraphs 75 to 84.

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 4357 ].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - A jury convicted the appellant of first degree murder as an aider or abettor - The appellant's counsel argued that the trial judge's charge to the jury was inadequate and unbalanced in favour of the Crown - The Ontario Court of Appeal dismissed this ground of appeal - In connection with the specific complaint about the instructions on the evidence of post-offence conduct, the charge did not reflect error - Nothing the trial judge said or did not say left or could have left the impression with the jurors that they could use this evidence to determine the level of the appellant's culpability - Use was confined to the issue of participation, an inference jurors were told they could only draw if they rejected the appellant's explanation that his flight was attributable to his possession of drugs - See paragraph 83.

Cases Noticed:

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 43 O.R.(3d) 378 (C.A.), refd to. [para. 50].

R. v. Charles (T.) (2011), 280 O.A.C. 21; 270 C.C.C. (3d) 308; 2011 ONCA 228, refd to. [para. 50].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 28].

R. v. Daley - see R. v. W.J.D.

Azoulay v. The Queen, [1952] 2 S.C.R. 495, refd to. [para. 53].

R. v. Largie (G.) et al. (2010), 266 O.A.C. 103; 101 O.R.(3d) 561; 2010 ONCA 548, refd to. [para. 53].

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. 56].

R. v. Hutchison and Ambrose, [1977] 2 S.C.R. 717; 9 N.R. 431; 14 N.B.R.(2d) 452; 15 A.P.R. 452, refd to. [para. 58].

R. v. John, [1971] S.C.R. 781, refd to. [para. 58].

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. 59].

R. v. Isaac, [1984] 1 S.C.R. 74; 51 N.R. 308, refd to. [para. 60].

R. v. Sparrow (1979), 51 C.C.C.(2d) 443 (Ont. C.A.), refd to. [para. 60].

R. v. Malott (M.A.), [1998] 1 S.C.R. 123; 222 N.R. 4; 106 O.A.C. 132, refd to. [para. 68].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209, refd to. [para. 68].

R. v. Baltovich (R.) (2004), 192 O.A.C. 366; 73 O.R.(3d) 481 (C.A.), refd to. [para. 69].

R. v. Clayton-Wright (1948), 33 Cr. App. R. 22 (C.C.A.), refd to. [para. 71].

R. v. Garon (L.) (2009), 245 O.A.C. 141; 240 C.C.C.(3d) 516; 2009 ONCA 4, refd to. [para. 72].

R. v. Rémillard (1921), 62 S.C.R. 21, consd. [para. 85].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 99].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 99].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 99].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 85].

Criminal Code, R.S.C. 1985, c. C-46, sect. 21, sect. 23.1 [para. 103].

Counsel:

Brian H. Greenspan and Jill D. Makepeace, for the appellant;

John McInnes, for the respondent.

This appeal was heard on June 27, 2013, before MacFarland, Watt and Epstein, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Watt, J.A., and was released on October 29, 2013.