R. v. Hummel (D.), (2002) 171 B.C.A.C. 47 (YukCA)

• Judge: Finch, C.J.B.C., Donald and Low, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: June 10, 2002
• Jurisdiction: Yukon
• Citations: (2002), 171 B.C.A.C. 47 (YukCA);2002 YKCA 6

R. v. Hummel (D.) (2002), 171 B.C.A.C. 47 (YukCA);

    280 W.A.C. 47

MLB headnote and full text

Temp. Cite: [2002] B.C.A.C. TBEd. SE.001

Regina (respondent) v. Daniel Hummel (appellant)

(YU450; 2002 YKCA 6)

Indexed As: R. v. Hummel (D.)

Yukon Court of Appeal

Finch, C.J.B.C., Donald and Low, JJ.A.

June 26, 2002.

Summary:

The accused appealed from conviction by a judge and jury of first degree murder committed in the course of a sexual assault, a forcible confinement or both.

The Yukon Court of Appeal dismissed the appeal.

Criminal Law - Topic 3072

Special powers - Forensic DNA analysis - Validity of warrant - A First Nations man was charged with the first degree murder of a Caucasian woman during a sexual assault, forcible confinement, or both - A DNA warrant was issued under s. 487.05 of the Criminal Code prior to the analysis of samples taken from the deceased - The Yukon Court of Appeal held that the war­rant was not defective - See paragraphs 32 to 44.

Criminal Law - Topic 4313

Procedure - Jury - General - Questioning of prospective jurors - A First Nations man was charged with the first degree murder of a Caucasian woman during a sexual assault, forcible confinement, or both - Two questions were authorized to be put to potential jurors respecting a challenge for cause, including whether the juror's ability to judge would be affected by the fact that the accused was aboriginal and the deceased was a white woman - The Yukon Court of Appeal affirmed that the trial judge did not err in refusing to allow a question respecting consensual interracial sexual intercourse - The ques­tion would not have produced a meaning­ful answer, would have invited a lengthy and unduly intrusive inquiry and was unnecessary because the defence theory of consent had no realistic basis - See para­graphs 11 to 22.

Criminal Law - Topic 4316

Procedure - Jury - General - Challenges for cause - [See Criminal Law - Topic 4313 ].

Criminal Law - Topic 5241.1

Evidence - Witnesses - Identification - Out-of-court identification - A First Nations man was charged with the first degree murder of a Caucasian woman during a sexual assault, forcible confine­ment, or both - A Crown witness testified that he saw the accused and a blond white woman walking together - The deceased's body was found in the same general area - The witness made a positive identification of the accused but could not identify the woman as the deceased - The Yukon Court of Appeal held that the evidence was sufficiently probative to outweigh its prej­udicial effect, and was admissible - See paragraphs 25 to 27.

Criminal Law - Topic 5337

Evidence - Witnesses - Confessions and voluntary statements - Admissibility - General - A First Nations man was charged with the first degree murder of a Caucasian woman during a sexual assault, forcible confinement, or both - A Crown witness testified that the accused marked an "X" on a map he drew and suggested that they search for a body - Another witness testified that the accused said he heard a woman calling his name from the grave - The accused uttered the words the morning after the day the deceased was last seen alive - The Yukon Court of Appeal held that the trial judge did not err in leaving the evidence with the jury - See paragraphs 28 to 32.

Cases Noticed:

R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1, refd to. [para. 15].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236, refd to. [para. 17].

R. v. Dhillon (G.S.) (2001), 157 B.C.A.C. 124; 256 W.A.C. 124; 158 C.C.C.(3d) 353 (C.A.), refd to. [para. 19].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 26].

R. v. Ferris (J.M.) (1994), 149 A.R. 1; 63 W.A.C. 1; 27 C.R.(4th) 141 (C.A.), affd. [1994] 3 S.C.R. 756; 174 N.R. 158; 162 A.R. 108; 83 W.A.C. 108; 34 C.R.(4th) 26, dist. [para. 31].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257, refd to. [para. 37].

R. v. Feeney (M.) (2001), 149 B.C.A.C. 112; 244 W.A.C. 112; 86 B.C.L.R.(3d) 30 (C.A.), refd to. [para. 41].

S.F. v. Canada (Attorney General) et al. (2000), 128 O.A.C. 329; 141 C.C.C.(3d) 225 (C.A.), refd to. [para. 43].

Counsel:

G.R. Coffin, for the appellant;

E.J. Horembala, Q.C., and W.B. Smart, Q.C., for the respondent.

This appeal was heard on June 10, 2002, at Whitehorse, Yukon Territory, before Finch, C.J.B.C., Donald and Low, JJ.A., of the Yukon Court of Appeal. The decision of the Court of Appeal was delivered on June 26, 2002, at Vancouver, British Columbia, by Donald, J.A.