R. v. Ilina (L.), 2003 MBCA 20

• Judge: Scott, C.J.M., Huband and Freedman, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 03, 2003
• Jurisdiction: Manitoba
• Citations: 2003 MBCA 20;(2003), 170 Man.R.(2d) 207 (CA)

R. v. Ilina (L.) (2003), 170 Man.R.(2d) 207 (CA);

    285 W.A.C. 207

MLB headnote and full text

Temp. Cite: [2003] Man.R.(2d) TBEd. FE.019

Her Majesty The Queen (respondent) v. Ludmila Ilina (accused/appellant)

(AR 01-30-05111; 2003 MBCA 20)

Indexed As: R. v. Ilina (L.)

Manitoba Court of Appeal

Scott, C.J.M., Huband and Freedman, JJ.A.

February 3, 2003.

Summary:

A jury convicted the accused of second degree murder in the death of her husband. The accused appealed her conviction.

The Manitoba Court of Appeal dismissed the appeal.

Editor's note: for related decisions see [1997] Man.R.(2d) Uned. 98, 122 Man.R.(2d) 175, 145 Man.R.(2d) 169; 218 W.A.C. 169, 159 Man.R.(2d) 293 and 160 Man.R.(2d) 315; 262 W.A.C. 315.

Criminal Law - Topic 4369

Procedure - Charge or directions - Jury or judge alone - Directions regarding motive or design - The accused was charged with second degree murder in her husband's death - The Crown's case was based on circumstantial evidence - There was no direct evidence of a possible motive - The accused was convicted - She appealed, arguing, inter alia, that the trial judge erred in failing to instruct the jury on the absence of motive - The Manitoba Court of Appeal dismissed the appeal - The accused's statements to police that she loved her husband and was worried about her future support and a neighbour's comments that the couple seemed to get along, was not the type of evidence that constituted a "proved absence of motive", requiring a charge to the jury - Where the evidence was merely supportive of an absence of proved motive, as in this case, the trial judge had a broad discretion whether to charge the jury on motive - The trial judge made no error in exercising his discretion - See paragraphs 42 to 63.

Criminal Law - Topic 4378

Procedure - Charge or directions - Jury or judge alone - Judicial review of - The accused was charged with second degree murder in her husband's death - Two police officers, non-experts, testified that there were signs of an attempted clean-up of a bloodstain in the couple's livingroom - A blood analysis expert, who examined the scene a day or two later, did not agree that there had been a clean-up attempt - The accused was convicted - She appealed, arguing that the jury charge with respect to this evidence was inadequate - The Manitoba Court of Appeal dismissed the appeal - It would have been preferable had the trial judge not referred to the officers' evidence as "opinions" without further description and had reminded the jurors of their explicit deferral to the expert's expertise - However, the functional approach required that a jury charge had to be examined in context as a complete work - This entitled an appellate court to look at counsel's comments - The jury could have been in no doubt respecting what the testimony of the officers was, the expert's expertise and the defence's position - See paragraphs 81 to 85.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The accused was charged with second degree murder in her husband's death - Two police officers testified that there were signs of an attempted clean-up of a bloodstain in the couple's livingroom - A blood analysis expert, who examined the scene a day or two later, did not agree that there had been a clean-up attempt - The accused was convicted - She appealed, arguing that the jury charge with respect to this evidence was inadequate - In particular, she argued that, given the probable impact of the "clean-up" evidence, the jury should have been told that if they had a reasonable doubt with respect to that evidence, looked at in isolation, then they ought to acquit - The Manitoba Court of Appeal rejected the argument - The clean-up evidence, even when taken in combination with other evidence suggesting a clean-up of clothing, while unquestionably important to the Crown's theory of the case, was not of such monumental significance that the ultimate determination of the case turned on it - See paragraphs 86 to 92.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The Manitoba Court of Appeal discussed the role of an appellate court in determining whether a jury's verdict was unreasonable - The court noted that it was imperative that the reviewing court articulate as precisely as possible what features of the case suggest that the verdict reached was unreasonable - The court stated "The court's explanation for [intervening] must be transparent and clear so that it is plain to see what particular aspects of the evidence are of concern, and the strength of the analysis leading to the conclusion that the verdict is unreasonable." - See paragraph 40.

Evidence - Topic 7112

Opinion evidence - Nonexpert evidence - Admissibility - The accused was charged with second degree murder in her husband's death - Two police officers, Bell and Rautavuori, non-experts, testified that there were signs of an attempted clean-up of a bloodstain in the couple's livingroom - A blood analysis expert, who examined the scene a day or two later, did not agree that there had been a clean-up attempt - The accused was convicted - The Manitoba Court of Appeal dismissed the accused's appeal, holding, inter alia, that the observations/opinions of Bell and Rautavuori were properly admitted - It was part and parcel of their professional experience to assess the crime scene - They observed the bloodstain and its surroundings while still fresh - It was difficult for the officers to convey their actual observations without putting the description in terms that the jury would understand, i.e., an opinion - At a minimum, their comments were relevant in weighing the expert's evidence - The evidence's prejudicial effect did not outweigh its probative value - See paragraphs 64 to 80.

Evidence - Topic 7112

Opinion evidence - Nonexpert evidence - Admissibility - The Manitoba Court of Appeal agreed with the following statement: "A 'conclusory' opinion may be given by a lay or non-expert witness, as an exception to the general rule, when the opinion constitutes a 'compendious statement' of the facts the witness observed if the facts involve matters of common experience and it is difficult to transmit the basis of the opinion." - See paragraphs 77 and 80.

Cases Noticed:

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 29].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 38].

R. v. Imrich, [1978] 1 S.C.R. 622; 15 N.R. 227, refd to. [para. 38].

R. v. Charemski (J.), [1998] 1 S.C.R. 679; 224 N.R. 120; 108 O.A.C. 126, refd to. [para. 41].

R. v. Taylor (S.), [2002] O.J. No. 348 (C.A.), refd to. [para. 41].

R. v. Lewis, [1979] 2 S.C.R. 821; 27 N.R. 451, refd to. [para. 45].

Markadonis v. R., [1935] S.C.R. 657, refd to. [para. 46].

R. v. Proulx (B.) (1992), 49 Q.A.C. 161; 76 C.C.C.(3d) 316 (C.A.), refd to. [para. 47].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81, refd to. [para. 49].

R. v. Ellwood (1908), 1 Cr. App. R. 181 (C.C.A.), refd to. [para. 53].

R. v. Fowler (W.L.) (1999), 117 B.C.A.C. 271; 191 W.A.C. 271 (C.A.), refd to. [para. 54].

R. v. Lampard, [1968] 2 O.R. 470 (C.A.), refd to. [para. 54].

R. v. Métivier (P.) (1989), 22 Q.A.C. 187 (C.A.), refd to. [para. 54].

R. v. Kennedy (1991), 42 O.A.C. 241; 1 O.R.(3d) 464 (C.A.), refd to. [para. 54].

R. v. White (R.G.) and Côté (Y.) (1996), 91 O.A.C. 321; 108 C.C.C.(3d) 1 (C.A.), affd. [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 55].

R. v. Edgar (D.J.) (2000), 128 O.A.C. 125; 142 C.C.C.(3d) 401 (C.A.), refd to. [para. 56].

R. v. Thompson (J.I.) (1992), 19 B.C.A.C. 303; 34 W.A.C. 303; 83 C.C.C.(3d) 273 (C.A.), refd to. [para. 56].

R. v. O'Grady (G.L.) (1999), 120 B.C.A.C. 129; 196 W.A.C. 129 (C.A.), refd to. [para. 57].

R. v. Williams (1985), 7 O.A.C. 201; 50 O.R.(2d) 321 (C.A.), refd to. [para. 60].

R. v. Collins (R.) (2001), 150 O.A.C. 220; 160 C.C.C.(3d) 85 (C.A.), refd to. [para. 67].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 68].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258, refd to. [para. 70].

R. v. A.K. and N.K. (1999), 125 O.A.C. 1; 45 O.R.(3d) 641 (C.A.), refd to. [para. 71].

R. v. Chester (1990), 64 Man.R.(2d) 146 (C.A.), refd to. [para. 71].

R. v. Muchikekwanape (R.) (2002), 166 Man.R.(2d) 81; 278 W.A.C. 81 (C.A.), refd to. [para. 71].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 72].

Marchand v. Public General Hospital Society of Chatham et al. (2000), 138 O.A.C. 201; 51 O.R.(3d) 97 (C.A.), refd to. [para. 75].

R. v. Ross (1985), 66 N.S.R.(2d) 287; 152 A.P.R. 287 (C.A.), refd to. [para. 75].

R. v. Bell ((T.M.) (2001), 152 B.C.A.C. 2; 250 W.A.C. 2; 152 C.C.C.(3d) 534 (C.A.), refd to. [para. 76].

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. 84].

R. v. Siu (H.K.M.) et al. (1998), 106 B.C.A.C. 161; 172 W.A.C. 161; 124 C.C.C.(3d) 301 (C.A.), refd to. [para. 84].

R. v. Lesuk (R.W.) (2000), 148 Man.R.(2d) 39; 224 W.A.C. 39 (C.A.), refd to. [para. 84].

R. v. Wang (J.) et al. (2001), 144 O.A.C. 115; 153 C.C.C.(3d) 321 (C.A.), refd to. [para. 84].

R. v. Lamirande (S.C.) et al. (2002), 163 Man.R.(2d) 163; 269 W.A.C. 163 (C.A.), refd to. [para. 84].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 86].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 86].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 88].

R. v. D.S.F. (1999), 118 O.A.C. 272; 132 C.C.C.(3d) 97 (C.A.), refd to. [para. 90].

R. v. Babinski (R.R.) (1999), 122 O.A.C. 1; 44 O.R.(3d) 695 (C.A.), refd to. [para. 91].

R. v. Ferianz et al. (1962), 37 C.R. 37 (Ont. C.A.), refd to. [para. 93].

Hodge's Case (1838), 2 Lewin 227; 168 E.R. 1136, refd to. [para. 95].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181, refd to. [para. 96].

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

R. v. Monteleone, [1987] 2 S.C.R. 154; 78 N.R. 377; 23 O.A.C. 241, refd to. [para. 97].

R. v. Brown (J.D.) (2002), 285 N.R. 201; 157 O.A.C. 1 (S.C.C.), refd to. [para. 97].

R. v. D.D. (1998), 129 Man.R.(2d) 55; 180 W.A.C. 55 (C.A.), refd to. [para. 99].

R. v. O'Connor (P.) (2002), 166 O.A.C. 202 (C.A.), refd to. [para. 102].

R. v. Coutts (S.) et al. (1998), 110 O.A.C. 353; 126 C.C.C.(3d) 545 (C.A.), refd to. [para. 103].

Authors and Works Noticed:

Ewaschuk, Eugene G., Criminal Pleadings and Practice in Canada (2nd Ed. 1987) (2002 Looseleaf Update), c. 16, pp. 246, 247 [para. 77].

Counsel:

R.J. Wolson, Q.C., and A.M. London, for the appellant;

R.A. Saull and B.R. Bell, for the respondent.

This appeal was heard on October 18, 21 and 22, 2002, before Scott, C.J.M., Huband and Freedman, JJ.A., of the Manitoba Court of Appeal. The decision of the Court of Appeal was delivered by Scott, C.J.M., on February 3, 2003.