R. v. Illes (M.), (2008) 380 N.R. 238 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Charron and Rothstein, JJ.
• Court: Supreme Court of Canada
• Case Date: October 24, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 380 N.R. 238 (SCC);2008 SCC 57

R. v. Illes (M.) (2008), 380 N.R. 238 (SCC)

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: [2008] N.R. TBEd. OC.063

Mihaly Illes (appellant) v. Her Majesty The Queen (respondent)

(31954; 2008 SCC 57; 2008 CSC 57)

Indexed As: R. v. Illes (M.)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Charron and Rothstein, JJ.

October 24, 2008.

Summary:

The accused appealed his conviction for first degree murder on the ground that the trial judge erred in instructing the jury and on the basis of material non-disclosure discovered after the trial. The objections to the jury charge were that (1) the judge erred in instructing the jury that the law presumed that incriminating portions of letters written by the accused after the murder were likely to be true, while exculpatory portions did not necessarily carry the same weight; (2) the judge set out an excessive number of examples of evidence capable of supporting the testimony of witnesses subject to a Vetrovec warning, thereby diluting the effect of the warning respecting accepting the testimony of unsavoury witnesses; and (3) the judge erred in permitting the jury to use the evidence of one unsavoury witness to confirm that of another unsavoury witness or, alternatively, by undermining the presumption of innocence by telling the jury that such mutual corroboration was permissible if they were satisfied that there had been no collaboration between the unsavoury witnesses.

The British Columbia Court of Appeal, Rowles, J.A., dissenting, in a judgment reported (2007), 237 B.C.A.C. 231; 392 W.A.C. 231, dismissed the appeal. The jury charge respecting the weight of inculpatory and exculpatory statements was incorrect, but the court invoked s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal where the verdict would necessarily have been the same had the error not been made. There was no error in the jury instructions on the Vetrovec warning and confirmatory evidence. Finally, although the information discovered after the trial met the low threshold for Crown disclosure, it was not admitted as fresh evidence because the evidence had no realistic potential for the advantage of the defence (i.e., no reasonable possibility that the non-disclosure impaired the accused's right to make full answer and defence). The accused appealed, seeking a new trial on the grounds that (1) the trial judge erred in instructing the jury that inculpatory portions of a statement were "likely to be true" while exculpatory portions carried less weight and (2) the Crown breached its duty to disclose.

The Supreme Court of Canada, Charron, Deschamps and Rothstein, JJ., dissenting, allowed the appeal, set aside the conviction and ordered a new trial. The court unanimously agreed that the trial judge erred in charging the jury charge respecting inculpatory and exculpatory statements and that the Crown breached its duty of disclosure. However, unlike the minority, the majority of the Court held that s. 686(1)(b)(iii) should not have been invoked to dismiss the appeal, because the verdict would not necessarily have been the same but for the jury charge error. Further, the Crown's non-disclosure of evidence also warranted a new trial because there was either a reasonable possibility that the non-disclosure affected the jury's verdict or that there was a reasonable possibility that the non-disclosure affected the overall fairness of the trial process.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 4375

Procedure - Charge or directions - Jury or judge alone - Directions regarding incriminating statements by accused or co-accused - An accused arrested for murder wrote admittedly "fake" letters seeking to exonerate himself by implicating others - The "ruse" was discovered upon discovery of a letter by the accused to his girlfriend instructing her how to engineer police discovery of the fake letters - The Crown relied on the letters as post-offence conduct tending to prove guilt - The trial judge made a "mixed statement instruction", telling the jury that the law presumed that inculpatory statements in the letters were likely to be true (i.e., why say it if it was not true), while exculpatory statements did not necessarily carry the same weight - The British Columbia Court of Appeal held that the jury was misdirected, because inculpatory and exculpatory statements were not to be weighed differently - However, the court invoked s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal because the verdict would necessarily have been the same but for the error- There was no miscarriage of justice where the accused's defence did not rely on the letters, as they were admittedly a complete fabrication, and there were no inculpatory admissions in the letter upon which the presumption could operate - The Supreme Court of Canada allowed the accused's appeal and ordered a new trial - The fact that the letters contained no explicit admissions, and the Crown relied on them only as post-offence conduct consistent with guilt, did not render the misdirection harmless - It was plausible, and even likely, that the jury was influenced by the flawed instructions in drawing inculpatory inferences from the letters - The potential for jury confusion necessitated a new trial and made the invocation of s. 686(1)(b)(iii) inappropriate - See paragraphs 1 to 23.

Criminal Law - Topic 4375.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding exculpatory statements by accused - [See Criminal Law - Topic 4375 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The accused was convicted of murder by a jury - The accused appealed on the basis of material non-disclosure of statements by a Crown witness discovered after the trial - The British Columbia Court of Appeal held that the statement met the low threshold for disclosure and should have been disclosed by the Crown - However, the court declined to admit it as fresh evidence because the evidence had no realistic potential for the advantage of the defence (i.e., no reasonable possibility that the non-disclosure impaired the accused's right to make full answer and defence) - The witness whose statement was not disclosed had nothing to offer the defence - The Supreme Court of Canada held that a new trial was appropriate under s. 24(1) of the Charter where fresh evidence was not available to the accused at trial due to the Crown's failure to disclose if the accused's right to make full answer and defence was denied - The accused had to show either that there was a reasonable possibility that the non-disclosure affected the outcome of the trial or that there was a reasonable possibility that the non-disclosure affected the overall fairness of the trial process - The court disagreed that the undisclosed evidence added nothing of significance - The evidence deprived the accused of the opportunity to impeach the witness on additional grounds - Contrary to what was found by the Court of Appeal, there was a reasonable possibility that the undisclosed evidence could have raised a reasonable doubt in the jury's mind - Alternatively, there was reasonable possibility that the undisclosed evidence could have affected trial fairness where it might have affected the accused's counsel's trial strategy - See paragraphs 24 to 28.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 4375 ].

Criminal Law - Topic 5353.4

Evidence and witnesses - Confessions and voluntary statements - Statements both inculpatory and exculpatory - [See Criminal Law - Topic 4375 ].

Cases Noticed:

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281; 2007 SCC 6, refd to. [para. 21].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 21].

R. v. Charlebois (P.), [2000] 2 S.C.R. 674; 261 N.R. 239; 2000 SCC 53, refd to. [para. 21].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234, refd to. [para. 21].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 24].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R. 1; 2003 SCC 70, refd to. [para. 25].

R. v. Skinner (S.), [1998] 1 S.C.R. 298; 222 N.R. 228; 165 N.S.R.(2d) 145; 495 A.P.R. 145, refd to. [para. 27].

R. v. Duncan (1981), 73 C.R. App. Rep. 359 (Eng. C.A.), disagreed with [para. 41].

R. v. David (R.E.) (2006), 230 B.C.A.C. 280; 380 W.A.C. 280; 213 C.C.C.(3d) 64; 2006 BCCA 412, refd to. [para. 41].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 48].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 55].

R. v. Rojas (M.A.) et al. (2008), 260 B.C.A.C. 258; 439 W.A.C. 258; 380 N.R. 211; 2008 SCC 56, refd to. [para. 57].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 63].

R. v. Jack (B.G.) (1992), 76 Man.R.(2d) 168; 10 W.A.C. 168; 70 C.C.C.(3d) 67 (C.A.), refd to. [para. 63].

R. v. L.A.T. (1993), 64 O.A.C. 380; 14 O.R.(3d) 378 (C.A.), refd to. [para. 63].

R. v. Gagné (Y.) (1998), 131 C.C.C.(3d) 444 (Que. C.A.), refd to. [para. 63].

Driskell v. Dangerfield et al., [2008] 6 W.W.R. 215; 228 Man.R.(2d) 116; 427 W.A.C. 116; 2008 MBCA 60, refd to. [para. 63].

Counsel:

David M. Layton, for the appellant;

W.J. Scott Bell, for the respondent.

Solicitors of Record:

Ritchie Sandford, Vancouver, B.C., for the appellant;

Attorney General of British Columbia, Vancouver, B.C., for the respondent.

This appeal was heard on April 22, 2008, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On October 24, 2008, the judgment of the Court was delivered in both official languages and the following opinions were filed:

LeBel and Fish, JJ. (McLachlin, C.J.C., and Binnie, J., concurring) - see paragraphs 1 to 39;

Charron, J. (Deschamps and Rothstein, JJ., concurring), dissenting - see paragraphs 40 to 70.