R. v. Jaw (S.G.), (2009) 464 A.R. 149 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: September 25, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 464 A.R. 149 (SCC);2009 SCC 42

R. v. Jaw (S.G.) (2009), 464 A.R. 149 (SCC);

          467 W.A.C. 149

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: [2009] A.R. TBEd. SE.122

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

(32706; 2009 SCC 42; 2009 CSC 42)

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

Supreme Court of Canada

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

September 25, 2009.

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, in a decision reported at 432 A.R. 297; 424 W.A.C. 297, dismissed the appeal. The accused appealed. The issue was whether the trial judge's statement in the jury charge regarding the accused's post-offence conduct was wrong and whether the error warranted a new trial.

The Supreme Court of Canada, Fish and Binnie, JJ., dissenting, dismissed the appeal. The trial judge's charge to the jury did not contain an error. Alternatively, the curative proviso of s. 686(1)(b)(iii) of the Criminal Code applied, since no substantial wrong or miscarriage of justice would have occurred.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (incl. intent and drunkenness) - The accused was convicted by a jury of the first degree murder of a police officer following a struggle - 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 - He alleged that he had no intent to kill the officer - The accused appealed - He argued that the trial judge erred by instructing the jury to infer an intention to kill the police officer from the accused's post-offence conduct - The Nunavut Court of Appeal dismissed the appeal - The Supreme Court of Canada also dismissed the accused's appeal - The trial judge's charge to the jury did not contain an error - Read in isolation, the impugned portion of the charge could be understood as suggested by the accused - However, read in its entire context, the trial judge did not put this inference to the jury and the charge contained no identifiable error - The jury would not have interpreted the judge's reference to post-offence conduct as an instruction to infer intent merely from the accused's actions following the shooting - The accused's counsel had raised several objections to the jury charge, but the trial judge's reference to post-offence conduct was not among them - If defence counsel did not interpret the charge as being prejudicial to the accused, then it was difficult to find that the jury might have so interpreted it - See paragraphs 3 and 24 to 41.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (incl. intent and drunkenness) - The accused was convicted by a jury of the first degree murder of a police officer following a struggle - 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 - He alleged that he had no intent to kill the officer - The accused appealed - He argued that the trial judge erred by instructing the jury to infer an intention to kill the police officer from the accused's post-offence conduct - The Nunavut Court of Appeal dismissed the appeal - The Supreme Court of Canada agreed with the Court of Appeal that the trial judge's first reference to the post-offence conduct was not problematic - The statement that jurors might consider "the accused's words and actions before, at the time, and after the shooting" in attempting to ascertain the accused's state of mind was simply a general guideline that encouraged jurors to consider the actions of an accused person in their totality - Indeed, this statement formed part of a model jury instruction on the offence of first degree murder of a police officer - There was no basis for the court to interfere with it - See paragraph 25.

Criminal Law - Topic 4389.1

Procedure - Charge or directions - Jury or judge alone - Resolution of ambiguities - The Supreme Court of Canada stated that it had reservations about the proposition that any uncertainty in a charge had, as a matter of course, to be resolved in favour of the accused - Even if the impugned statement in the trial judge's jury charge in the instant case did disclose a true ambiguity, an attempt would first have to be made to resolve it by resort to general principles and methods of interpretation - An ambiguity in the charge should not automatically be resolved in favour of the accused - See paragraph 38.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - [See both Criminal Law - Topic 1299 ].

Criminal Law - Topic 4973

Appeals - Indictable offences - Powers of Court of Appeal - Power to review and weigh evidence - The accused was convicted by a jury of the first degree murder of a police officer following a struggle - The Nunavut Court of Appeal dismissed the accused's appeal - The accused appealed - That main issue concerned the trial judge's jury charge - The Supreme Court of Canada stated that the confusion surrounding part of the jury charge might be explained in part by the potential for transcription difficulties at trial - The charge was delivered in English and translated sentence-by-sentence into Inuktitut - Even individual sentences were at times broken down to facilitate the translation - The transcription process was already reductionist in nature: the regular inflections in one's voice, one's emphasis on certain words and the natural flow of an idea or thought were not always captured by a written record - In the case of a trial conducted in two languages, the natural breaks between topics might not be as clear as usual, given the constant interruptions required for translation - The court reporter thus faced the difficult task of ensuring that the written record was true to the proceedings - The paragraph structure of the charge as set out in the transcript should not be read as necessarily reflecting the actual structure of the charge as presented at trial, particularly given that the instructions were delivered orally and were translated sentence-by-sentence for the jury - While an appellate court should certainly rely on transcripts as records of lower court hearings, their usefulness did not imply that the court should not examine them critically when necessary - A transcript was not an authoritative legal text - See paragraph 34.

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 - The accused was convicted by a jury of the first degree murder of a police officer following a struggle - 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 - He alleged that he had no intent to kill the officer - The accused appealed - He argued that the trial judge erred by instructing the jury to infer an intention to kill the police officer from the accused's post-offence conduct - The Nunavut Court of Appeal dismissed the appeal - The Supreme Court of Canada also dismissed the accused's appeal - The trial judge's charge to the jury did not contain an error - Alternatively, the curative proviso of s. 686(1)(b)(iii) of the Criminal Code applied, as no substantial wrong or miscarriage of justice would have occurred - It was highly unlikely that the purported ambiguity of the charge conduct would have influenced the jury in a manner prejudicial to him - The evidence of the accused's post-offence conduct was of very little significance to the case against him and was not emphasized at trial by either the Crown or the trial judge - The fact that defence counsel did not object suggested that the alleged error was neither serious nor significant - See paragraphs 3 and 42 to 45.

Cases Noticed:

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514 (C.A.), refd to. [para. 29].

R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. 1, refd to. [para. 38].

R. v. Chartrand (J.), [1994] 2 S.C.R. 864; 170 N.R. 161; 74 O.A.C. 257, refd to. [para. 38].

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. 38].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [paras. 39, 64].

R. v. Marinaro (G.), [1996] 1 S.C.R. 462; 197 N.R. 21; 91 O.A.C. 117, refd to. [para. 39].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 34 O.R.(3d) 620 (C.A.), refd to. [para. 39].

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. [paras. 39, 65].

R. v. Pharr (J.) (2007), 227 O.A.C. 112; 2007 ONCA 551, refd to. [para. 40].

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. 40].

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. [paras. 42, 48].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281; 216 C.C.C.(3d) 225; 2007 SCC 6, refd to. [paras. 42, 102].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 44].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 44].

R. v. Torbiak and Campbell (1974), 18 C.C.C.(2d) 229; 26 C.R.N.S. 108 (Ont. C.A.), refd to. [para. 86].

R. v. Brouillard, [1985] 1 S.C.R. 39; 57 N.R. 168, refd to. [para. 86].

R. v. Bisson (Y.), [1997] R.J.Q. 286; 114 C.C.C.(3d) 154 (C.A.), affd. [1998] 1 S.C.R. 306; 222 N.R. 365; 121 C.C.C.(3d) 449, refd to. [para. 86].

R. v. Gallagher (1922), 63 D.L.R. 629 (Alta. C.A.), refd to. [para. 88].

Bigaouette v. R., [1927] S.C.R. 112, refd to. [para. 88].

Latour v. R., [1951] S.C.R. 19, refd to. [para. 88].

R. v. C.D., [2005] 3 S.C.R. 668; 343 N.R. 1; 376 A.R. 258; 360 W.A.C. 258; 2005 SCC 78, refd to. [para. 90].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 90].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 472 to 474 [para. 38].

Watt, David, Manual of Criminal Jury Instructions (2005), p. 450 [para. 25].

Counsel:

Marvin R. Bloos, Q.C., for the appellant;

Ron Reimer and Susanne Boucher, for the respondent.

Solicitors of Record:

Beresh Cunningham Aloneissi O'Neill Hurley, Edmonton, Alberta, for the appellant;

Public Prosecution Service of Canada, Edmonton, Alberta, for the respondent.

This appeal was heard on January 13, 2009, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court of Canada was delivered in both official languages on September 25, 2009, and the following opinions were delivered:

LeBel, J. (McLachlin, C.J.C., Deschamps, Abella, Charron, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 45;

Fish, J., dissenting (Binnie, J., concurring) - see paragraphs 46 to 103.