R. v. Jacquard (C.O.), (1997) 157 N.S.R.(2d) 161 (SCC)

• Judge: Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 20, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 157 N.S.R.(2d) 161 (SCC)

R. v. Jacquard (C.O.) (1997), 157 N.S.R.(2d) 161 (SCC);

    462 A.P.R. 161

MLB headnote and full text

[French language version follows English language version]

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

....................

Clayton Otis Jacquard (appellant) v. Her Majesty The Queen (respondent)

(24660)

Indexed As: R. v. Jacquard (C.O.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Major, JJ.

February 20, 1997.

Summary:

The accused was convicted of first degree murder and attempted murder following a jury trial. The accused appealed, submitting that the trial judge misdirected the jury by failing to adequately relate the evidence to the legal issues raised, particularly his ca­pacity to plan and deliberate, and misdi­rected them on the inference of conscious­ness of guilt which might be drawn from the accused's conduct in wiping his fingerprints from the weapon used in the killings.

The Nova Scotia Court of Appeal, in a judgment reported 138 N.S.R.(2d) 352; 394 A.P.R. 352, dismissed the appeal. The accused appealed.

The Supreme Court of Canada, Cory, Sopinka and Major, JJ., dissenting, dismissed the appeal.

Criminal Law - Topic 92.5

Mental disorder - Jury charge - [See Criminal Law - Topic 1265.1 ].

Criminal Law - Topic 1265.1

Murder - Jury charge - First degree mur­der - An accused convicted of first degree murder had pleaded not guilty by reason of mental disorder (Criminal Code, s. 16) - The accused claimed that if the defence was not made out, mental disorder was still relevant to intent to kill and planning and deliberation, and the trial judge erred in failing to restate the evidence in relation to those issues - The Nova Scotia Court of Appeal held that where the trial judge reviewed the evidence of mental disorder with the jury respecting the s. 16 defence, he need not repeat all of the evidence when instructing the jury on intent and planning and deliberation - Experienced counsel did not object, the accused did not testify, mental disorder as affecting planning and deliberation was not raised as a live issue at trial and defence psychia­trists did not testify as to his mental state as it applied to planning and deliberation - The Supreme Court of Canada stated that "the trial judge was entitled not to restate this evidence ... each time he addressed an issue in respect of which that evidence was relevant. By directing the jury to consider all of the circumstances and evidence, he fulfilled his obligation to relate the essen­tial evidence of the [accused's] mental disorder as it related to the 'planned and deliberate' issue" - See paragraphs 12 to 40.

Criminal Law - Topic 4357

Procedure - Jury charge - Directions regarding defences and theory of the defence - [See Criminal Law - Topic 1265.1 ].

Criminal Law - Topic 4378

Procedure - Jury charge - Judicial review of - The Supreme Court of Canada stated that "this appeal raises questions about the standard to which this court should hold trial judges in charging juries. It is un­doubtedly important that jurors try the right facts according to the appropriate legal principles in each case. However, we must ensure that the yardstick by which we measure the fitness of a trial judge's directions to the jury does not become overly onerous. We must strive to avoid the proliferation of very lengthy charges in which judges often quote large extracts from appellate decisions simply to safe­guard verdicts from appeal. Neither the Crown nor the accused benefits from a confused jury. Indeed justice suffers. These comments are not meant to suggest that we sanction misdirected verdicts. This court has stated on repeated occasions that accused individuals are entitled to properly instructed juries. There is, however, no requirement for perfectly instructed juries." - See paragraphs 1 to 2.

Criminal Law - Topic 4392

Procedure - Jury charge - Directions re inferences of guilt - [See both Criminal Law - Topic 5316 ].

Criminal Law - Topic 4399.9

Procedure - Jury charge - Directions re flight and other post-offence behaviour of accused - [See both Criminal Law - Topic 5316 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Substantial wrong or miscarriage of justice - What consti­tutes - An accused convicted of first degree murder had pleaded not guilty by reason of mental disorder (Criminal Code, s. 16) - The trial judge misdirected the jury respecting an inference of "conscious­ness of guilt" - The inference applied, but was more limited than stated by the trial judge (i.e., only to the s. 16 issue) - It was the only error in a fair and balanced jury charge - The Supreme Court of Canada invoked s. 686(1)(b)(iii) to dismiss the appeal notwithstanding the error - In light of the facts of the case and the jury charge as a whole, the effect of the trial judge's misstatement would not have been signifi­cant - Consciousness of guilt was a minor aspect of the Crown's case - A properly instructed jury would not have come to a different conclusion - See paragraphs 54 to 60.

Criminal Law - Topic 5316

Evidence and witnesses - Inferences - Of guilt - From conduct - An accused con­victed of first degree murder admittedly shot and killed the victim with a shotgun - The gun was later found hidden, with no fingerprints on it, although it was exten­sively handled by the accused - The Nova Scotia Court of Appeal held that the trial judge did not err in instructing the jury that they could infer that the accused attempted to hide or destroy evidence and that an inference of consciousness of guilt could be inferred from such conduct - The Supreme Court of Canada held that the trial judge did not err in alluding to "con­sciousness of guilt", but in failing to limit its applicability to the s. 16 mental dis­order issue - The court stated that "it was open to the jury to draw an inference from the fact that the shotgun and ammunition were removed from the crime scene and later found under the skateboard ramp, but only to the extent that it assisted the jury in understanding the effects of the alleged mental disorder on the [accused's] capacity to understand the nature and quality of his acts." - See paragraphs 41 to 53.

Criminal Law - Topic 5316

Evidence and witnesses - Inferences - Of guilt - From conduct - The Supreme Court of Canada held that, typically, where an accused fled a crime scene or concealed evidence to hide involvement it was open to infer guilt - But where the accused admitted the actus reus of the offence, the use to which evidence of consciousness of guilt could be put was more limited - Where an accused admitted a killing and was charged with first degree murder, such conduct was equally consistent with other lesser offences (second degree murder, manslaughter) - However, evidence of flight or concealment was relevant circum­stantial evidence in evaluating the ac­cused's "not criminally responsible" s. 16 (Criminal Code) defence - The court stated that "it certainly has some bearing on whether the [accused] was capable of appreciating that what he had done was wrong. Indeed, just as a party would be unlikely to hide a murder weapon or flee a crime scene if he or she was not respon­sible for the act, a person would be most unlikely to attempt to cover up his or her actions if there was no appreciation of the nature and quality of those actions or no understanding that they were wrong." - See paragraph 49.

Cases Noticed:

R. v. McColeman (1991), 5 B.C.A.C. 128; 11 W.A.C. 128 (C.A.), refd to. [para. 13].

John v. R., [1971] S.C.R. 781, refd to. [para. 13].

R. v. Cluett, [1985] 2 S.C.R. 216; 61 N.R. 388; 70 N.S.R.(2d) 104; 166 A.P.R. 104; 21 C.C.C.(3d) 318; 21 D.L.R.(4th) 306, refd to. [para. 13].

Azoulay v. R., [1952] 2 S.C.R. 495, refd to. [para. 13].

McMartin v. R., [1964] S.C.R. 484, refd to. [para. 21].

More v. R., [1963] S.C.R. 522, dist. [para. 21].

R. v. Mitchell, [1964] S.C.R. 471, refd to. [para. 21].

R. v. Kirkby (1985), 10 O.A.C. 356; 47 C.R.(3d) 97 (C.A.), refd to. [para. 21].

R. v. Reynolds (1978), 22 O.R.(2d) 353 (C.A.), refd to. [para. 21].

R. v. Allard (1990), 57 C.C.C.(3d) 397 (Que. C.A.), dist. [para. 24].

R. v. Aalders, [1993] 2 S.C.R. 482; 154 N.R. 161; 55 Q.A.C. 161, refd to. [para. 25].

R. v. Smith (G.A.) (1986), 71 N.S.R.(2d) 229; 171 A.P.R. 229 (C.A.), refd to. [para. 25].

R. v. Palmer (1986), 12 O.A.C. 181 (C.A.), refd to. [para. 25].

R. v. Wallen, [1990] 1 S.C.R. 827; 107 N.R. 50; 107 A.R. 114, appld. [para. 27].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 36].

R. v. Thériault, [1981] 1 S.C.R. 336; 37 N.R. 361; 37 N.R. 591, refd to. [para. 37].

R. v. Marinaro (G.), [1996] 1 S.C.R. 462; 197 N.R. 21; 91 O.A.C. 117, rev­ing. (1994), 76 O.A.C. 44; 95 C.C.C.(3d) 74 (C.A.), refd to. [para. 44].

R. v. Wiltse (J.W.) and Yarema (M.W.) (1994), 72 O.A.C. 226; 19 O.R.(3d) 379 (C.A.), refd to. [para. 44].

R. v. Charlette (M.H.) (1992), 83 Man.R.(2d) 187; 36 W.A.C. 187 (C.A.), refd to. [para. 44].

R. v. Murray (E.E.) (1994), 73 O.A.C. 321; 93 C.C.C.(3d) 70 (C.A.), refd to. [para. 44].

R. v. Bob (1990), 40 O.A.C. 184; 78 C.R.(3d) 102 (C.A.), refd to. [para. 44].

R. v. White (R.G.) and Côté (Y.) (1996), 91 O.A.C. 321; 108 C.C.C.(3d) 1 (C.A.), refd to. [para. 50].

R. v. Jenkins (E.) et al. (1996), 90 O.A.C. 263; 29 O.R.(3d) 30 (C.A.), refd to. [para. 55].

Colpitts v. R., [1965] S.C.R. 739, refd to. [para. 60].

R. v. Markle, [1990] O.J. No. 2606 (Gen. Div.), refd to. [para. 65].

R. v. Brydon (J.L.), [1995] 4 S.C.R. 253; 188 N.R. 321; 65 B.C.A.C. 81; 106 W.A.C. 81, refd to. [para. 71].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 16(1), sect. 231(2), sect. 235(1), sect. 239, sect. 655 [para. 11]; sect. 686(1)(b)(iii) [para. 54].

Counsel:

Joel E. Pink, Q.C., and Daniel G. Graham, for the appellant;

William D. Delaney, for the respondent.

Solicitors of Record:

Pink Murray, Halifax, N.S., for the appel­lant;

Attorney General of Nova Scotia, Halifax, N.S., for the respondent.

This appeal was heard on October 10, 1996, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Major, JJ., of the Supreme Court of Canada.

On February 20, 1997, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Lamer, C.J.C. (La Forest, L'Heureux-Dubé and Gonthier, JJ., concurring) - see paragraphs 1 to 62;

Cory, J., dissenting - see paragraphs 63 to 69;

Sopinka, J. (Major, J., concurring), dis­senting - see paragraphs 70 to 74.