R. v. Jaw (S.G.), 2008 NUCA 2

• Judge: Martin, Watson and Johnson, JJ.A.
• Court: Nunavut Court of Appeal (Canada)
• Case Date: September 19, 2007
• Jurisdiction: Nunavut
• Citations: 2008 NUCA 2;(2008), 432 A.R. 297 (CA)

R. v. Jaw (S.G.) (2008), 432 A.R. 297 (CA);

      424 W.A.C. 297

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MY.138

Her Majesty the Queen (respondent) v. Salomonie Goo Jaw (appellant)

(03-04-0001CAP; 2008 NUCA 2)

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

Nunavut Court of Appeal

Martin, Watson and Johnson, JJ.A.

May 20, 2008.

Summary:

The accused was convicted by a jury of the first degree murder of a police officer. The accused appealed.

The Nunavut Court of Appeal, Martin, J.A., dissenting in part, dismissed the appeal.

Criminal Law - Topic 1265.1

Murder - General principles - Jury charge - First degree murder - The accused was convicted by a jury of the first degree murder of a police officer - The accused testified that the officer pepper-sprayed him - However, he alleged that he had no memory thereafter about how the officer got shot with the accused's shotgun - The accused appealed, arguing that, in a manner similar to intoxication, being pepper sprayed would have a disorienting effect upon the accused such as to raise doubt about whether he fired the shotgun intentionally with either of the intents required by s. 229(a) of the Criminal Code - The Nunavut Court of Appeal rejected the argument - The trial judge instructed the jury as to the factors relevant to intent after largely taking any sting out of the common sense inference (that sane and sober persons intend the natural and probable consequences of their actions) by saying "[b]ut that is simply one way for you to determine a person's actual state of mind, and only after you have considered all of the evidence." - After the accused's counsel objected to the charge as unbalanced, the trial judge recalled the jury and instructed them further - The law had not denigrated the common sense inference - This jury was left with the possibility of using the inference as a means to help them assess the accused's state of mind - In light of this, the court was not persuaded that the charge was substantively unfair - See paragraphs 90 to 93.

Criminal Law - Topic 1269

Murder - General principles - First degree murder - What constitutes - The accused was convicted by a jury of the first degree murder of a police officer - The trial judge decided not to put to the jury that the killing of the officer might be second degree murder if they found that the officer used excessive force in dealing with the accused, on the basis that the officer was no longer acting in the course of his duty (Criminal Code, s. 231(4)(a)) when the shooting occurred - The accused appealed - The Nunavut Court of Appeal held that there was a lack of any "air of reality" to the suggestion the officer could be found to be acting in excess of the force he was entitled to use under s. 25 at the time he was shot - On its face, the words "acting in the course" connoted temporal connection in a neutral sense - The common meaning, in their grammatical and ordinary sense, of the words two linguistic versions of s. 231(4)(a) read in their contexts was that the concept of "acting in the course" of duty was a temporal concept, referring to the officer being then on duty - See paragraphs 56 to 72.

Criminal Law - Topic 1293

Murder - Defences - Self-defence - General - The accused was convicted by a jury of the first degree murder of a police officer - The accused appealed, arguing that there was an air of reality to self-defence under ss. 34(1), 34(2) of the Criminal Code and provocation and these defences should have been put to the jury - The accused testified that the officer pushed him down onto a chair, and in doing so ripped the accused's shirt, and that he was pepper-sprayed - However, he alleged that he had no memory thereafter about how the officer got shot with the accused's shotgun - The accused did not put self-defence or provocation to the jury himself or complain when it was not done - The Nunavut Court of Appeal rejected the argument - Conduct under s. 34(1) and 34(2) had to be volitional or intentional and responsive - The defence at trial was, in essence, that the officer died by unintended discharge of the firearm resulting in a conviction for manslaughter by unlawful but unintentional killing or an acquittal for "pure" accident - Instructions to the jury on self-defence would have involved directions as to inferences about the relevant levels of belief, knowledge and intention - Such directions would have imposed on the accused a very difficult alternative position - There was no evidence that the accused's introduction into the transaction of a loaded shotgun was a response to whatever had previously happened with the pepper spray - Provocation was a specialized form of defence that pre-supposed that the defendant was driven into a homicidal rage but possessed of the intent to murder - Such a defence was in direct conflict with the defence of lack of intent put forward in this case - There was no air of reality to either self-defence or provocation - To put those issues to the jury would have involved prolix and confusing analyses, and potentially damaged the main defences - Alternatively, there was no reasonable possibility that the jury would have reached a different verdict in favour of the accused (s. 686(1)(b)(iii)) - See paragraphs 73 to 89.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (incl. intent and drunkenness) - [See Criminal Law - Topic 1265.1 and Criminal Law - Topic 1293 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - The accused was convicted by a jury of the first degree murder of a police officer who had responded to a domestic dispute - The evidence of the accused's common law spouse was in some respects for and against the accused - In significant parts, it conflicted with the physical evidence as interpreted by the Crown experts - The accused appealed, arguing that credibility was important within the meaning of R. v. D.W. and that consequently it was necessary to put to the jury the several reasoning steps to assist them to properly evaluate credibility in light of the Crown's burden of proof - The trial judge was not persuaded that this was the sort of oath against oath situation where the principles in R. v. D.W. would be a necessary antidote to potential misconception by the jury of the burden of proof - The Nunavut Court of Appeal rejected the argument - The key point was whether the trial judge's instructions to the jury on the burden of proof met the functional standard of ensuring that the jury understood that they ought not to convict unless the Crown had proven guilt beyond a reasonable doubt - This aspect of the accused's argument effectively sought to supplement that sort of instruction with a further rule that, if there was a version for the defence which could be stitched together from various sources mostly other than the accused's testimony, the instruction in R. v. D.W. was necessary - The court was not persuaded that R. v. D.W., as important as it was, went that far - See paragraphs 94 to 101.

Criminal Law - Topic 4386

Procedure - Charge or directions - Jury or judge alone - Judge's duty to determine if defence available on the evidence - [See Criminal Law - Topic 1269 and Criminal Law - Topic 1293 ].

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 convicted by a jury of the first degree murder of a police officer - The accused testified that the officer pepper-sprayed him - However, he alleged that he had no memory thereafter about how the officer got shot with the accused's shotgun - The trial judge gave the jury instructions to the effect that the accused's realization that he had killed the officer without having to actually check on the officer's condition could be used as evidence of what the accused was thinking when he shot the officer - The Crown had contended to the jury that they could also consider the fact that the accused did not need to check the officer before concluding that he should go and kill himself - The accused appealed, arguing that the instruction elevated an essentially neutral set of events (accused's sense of guilt and remorse which would arise howsoever the officer was killed) into a piece of circumstantial evidence relevant to his awareness of the type of harm he was inflicting - Hence, it was left as relevant to foresight and then intent for murder under s. 229(a) of the Criminal Code - The accused alleged that the post-shooting actions of the accused were essentially of no probative force - The Nunavut Court of Appeal stated that as the accused testified that he was blinded by pepper spray, and only came to awareness after the shooting, it was relevant to the jury to consider whether his immediate realization of what he had done was consistent with oblivion at the time it happened - While the trial judge should have refrained from putting this position to the jury, the court was not persuaded that a substantial wrong or miscarriage of justice occurred - The post offence conduct was left as an argument for the jury to consider, not as a direction of law - See paragraphs 102 to 109.

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 1293 and Criminal Law - Topic 4399.9 ].

Evidence - Topic 2405

Presumptions - Specific presumptions - Conduct - Natural consequences of - [See Criminal Law - Topic 1265.1 ].

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 37].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1, refd to. [para. 52].

R. v. Kong (V.), [2006] 2 S.C.R. 347; 352 N.R. 365; 401 A.R. 327; 391 W.A.C. 327, reving. (2005), 371 A.R. 90; 354 W.A.C. 90; 2005 ABCA 255, refd to. [para. 52].

R. v. Mousseau (E.L.) (2007), 212 Man.R.(2d) 308; 389 W.A.C. 308; 219 C.C.C.(3d) 241 (C.A.), refd to. [para. 52].

R. v. Baltovich (R.) (2004), 192 O.A.C. 366; 191 C.C.C.(3d) 289 (C.A.), refd to. [para. 53].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 56].

R. v. Petri (V.R.) (2003), 170 Man.R.(2d) 238; 285 W.A.C. 238; 171 C.C.C.(3d) 553; 2003 MBCA 1, refd to. [para. 56].

R. v. Prevost (1988), 28 O.A.C. 50; 42 C.C.C.(3d) 314 (C.A.), refd to. [para. 59].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.), refd to. [para. 60].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 60].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 62].

R. v. Kephart and Oliver (1988), 91 A.R. 321; 44 C.C.C.(3d) 97 (C.A.), refd to. [para. 62].

R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. 1, refd to. [para. 63].

R. v. Hasselwander, [1993] 2 S.C.R. 398; 152 N.R. 247; 62 O.A.C. 285, refd to. [para. 64].

R. v. Mac (M.K.), [2002] 1 S.C.R. 856; 287 N.R. 75; 159 O.A.C. 33; 2002 SCC 24, refd to. [para. 66].

R. v. Daoust (C.) et al., [2004] 1 S.C.R. 217; 316 N.R. 203; 2004 SCC 6, refd to. [para. 66].

Canada 3000 Inc. (Bankrupt), Re, [2006] 1 S.C.R. 865; 349 N.R. 1; 212 O.A.C. 338; 2006 SCC 24, refd to. [para. 66].

R. v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, [2005] 3 S.C.R. 425; 341 N.R. 357; 275 Sask.R. 1; 365 W.A.C. 1; 2005 SCC 70, refd to. [para. 67].

R. v. Ferris (J.M.), [1994] 3 S.C.R. 756; 174 N.R. 158; 162 A.R. 108; 83 W.A.C. 108, refd to. [para. 69].

R. v. Collins (1989), 32 O.A.C. 296; 48 C.C.C.(3d) 343 (C.A.), refd to. [para. 70].

R. v. Lefebvre (S.) (1992), 45 Q.A.C. 47; 72 C.C.C.(3d) 162 (C.A.), refd to. [para. 70].

R. v. Bowen and Kay (1990), 111 A.R. 146; 59 C.C.C.(3d) 515 (C.A.), refd to. [para. 70].

R. v. Boucher (2006), 215 C.C.C.(3d) 97; 2006 QCCA 1079, refd to. [para. 71].

R. v. Kandola (J.S.) (1993), 27 B.C.A.C. 226; 45 W.A.C. 226; 80 C.C.C.(3d) 481 (C.A.), refd to. [para. 79].

R. v. McKay (A.J.), [2007] 1 S.C.R. 793; 365 N.R. 300; 220 Man.R.(2d) 1; 407 W.A.C. 1; 2007 SCC 16, reving. (2006), 208 Man.R.(2d) 15; 383 W.A.C. 15; 211 C.C.C.(3d) 74; 2006 MBCA 83, refd to. [para. 80].

R. v. Hebert (D.M.), [1996] 2 S.C.R. 272; 197 N.R. 277; 77 B.C.A.C. 1; 126 W.A.C. 1, refd to. [para. 80].

R. v. Fontaine (J.), [2004] 1 S.C.R. 702; 318 N.R. 371; 2004 SCC 27, refd to. [para. 82].

R. v. Stuart, 2007 QCCA 924, refd to. [para. 82].

R. v. Squire, [1977] 2 S.C.R. 13; 10 N.R. 25, refd to. [para. 82].

R. v. Faid (1981), 30 A.R. 616; 61 C.C.C.(2d) 28 (C.A.), revd. [1983] 1 S.C.R. 265; 46 N.R. 461; 42 A.R. 308, refd to. [para. 83].

R. v. Gunning (J.J.), [2005] 1 S.C.R. 627; 333 N.R. 286; 211 B.C.A.C. 51; 349 W.A.C. 51; 2005 SCC 27, refd to. [para. 83].

R. v. Daigle, [2007] J.Q. No. 11395, refd to. [para. 87].

R. v. Flegel (D.R.) (2005), 197 O.A.C. 57; 196 C.C.C.(3d) 146 (C.A.), refd to. [para. 87].

R. v. Humaid (A.A.) (2006), 210 O.A.C. 68; 208 C.C.C.(3d) 43 (C.A.), leave to appeal refused (2006), 361 N.R. 389; 227 O.A.C. 398 (S.C.C.), refd to. [para. 87].

R. v. Tremblay (2007), 50 C.R.(6th) 349; 2007 QCCA 696, refd to. [para. 87].

R. v. Van Dongen and Mitchell, [2005] EWCA Crim 1728, refd to. [para. 87].

Jersey (Attorney General) v. Holley, [2005] UKPC 23; 341 N.R. 285 (P.C.), refd to. [para. 87].

R. v. Parent (R.), [2001] 1 S.C.R. 761; 268 N.R. 372; 2001 SCC 30, refd to. [para. 88].

R. v. Roberts (E.W.) (2004), 346 A.R. 325; 320 W.A.C. 325; 185 C.C.C.(3d) 382; 2004 ABCA 114, affd. [2005] 1 S.C.R. 22; 329 N.R. 8; 363 A.R. 26; 343 W.A.C. 26; 2005 SCC 3, refd to. [para. 88].

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. 89].

R. v. Seymour (J.), [1996] 2 S.C.R. 252; 197 N.R. 81; 76 B.C.A.C. 1; 125 W.A.C. 1, refd to. [para. 90].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 95].

R. v. Werkman (B.L.) (2007), 404 A.R. 378; 394 W.A.C. 378; 219 C.C.C.(3d) 406; 2007 ABCA 130, refd to. [para. 95].

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. 95].

R. v. C.L.Y. (2008), 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 97].

R. v. O.L.D., [2007] O.A.C. Uned. 533; 2007 ONCA 887, refd to. [para. 98].

R. v. Brass (D.A.R.), [2007] 11 W.W.R. 191; 304 Sask.R. 20; 413 W.A.C. 20; 2007 SKCA 94, refd to. [para. 98].

R. v. Mends (L.F.), [2007] O.A.C. Uned. 370; 2007 ONCA 669, refd to. [para. 101].

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. 107].

R. v. Belance (C.M.) (2007), 221 O.A.C. 161; 2007 ONCA 123, refd to. [para. 107].

R. v. Pharr (J.) (2007), 227 O.A.C. 112; 2007 ONCA 551, refd to. [para. 107].

R. v. Fatima (K.) - see R. v. Khan (M.A.).

R. v. Khan (M.A.) (2007), 230 O.A.C. 174; 2007 ONCA 779, refd to. [para. 107].

R. v. Loughlin (J.), [2006] O.A.C. Uned. 24; 204 C.C.C.(3d) 314 (C.A.), leave to appeal refused (2006), 372 N.R. 396 (S.C.C.), refd to. [para. 107].

R. v. Anthony (J.) (2007), 228 O.A.C. 272; 2007 ONCA 609, refd to. [para. 109].

R. v. Marinaro (G.) (1994), 76 O.A.C. 44; 95 C.C.C.(3d) 74 (C.A.), revd. [1996] 1 S.C.R. 462; 197 N.R. 21; 91 O.A.C. 117, refd to. [para. 127].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 231(4)(a) [para. 56].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 67].

Driedger - see Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes.

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 81 to 94 [para. 66].

Counsel:

S. Boucher, for the respondent;

M. Bloos, Q.C., for the appellant.

This appeal was heard on September 19, 2007, by Martin, Watson and Johnson, JJ.A., of the Nunavut Court of Appeal. The decision of the court was delivered on May 20, 2008, when the following opinions were filed at Iqualuit, Nunavut, on May 20, 2008:

Watson, J.A. (Johnson, J.A., concurring) - see paragraphs 1 to 110;

Martin, J.A., dissenting in part - see paragraphs 111 to 129.