R. v. Jeanvenne (A.), (2010) 270 O.A.C. 22 (CA)

• Judge: Rosenberg, Blair and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 26, 2010
• Jurisdiction: Ontario
• Citations: (2010), 270 O.A.C. 22 (CA);2010 ONCA 706

R. v. Jeanvenne (A.) (2010), 270 O.A.C. 22 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. OC.055

Her Majesty The Queen (respondent) v. Andre Jeanvenne (appellant)

(C46205; 2010 ONCA 706)

Indexed As: R. v. Jeanvenne (A.)

Ontario Court of Appeal

Rosenberg, Blair and Juriansz, JJ.A.

October 26, 2010.

Summary:

The accused was convicted of two dissimilar first degree murders committed 17 years apart. The only commonality was that both murders were investigated together in a Mr. Big sting operation, resulting in inculpatory statements. The accused appealed, submitting that the trial judge erred in refusing to sever the two counts.

The Ontario Court of Appeal allowed the appeal, set aside the convictions and ordered separate trials for each count. Although unnecessary to do so, the court would have ordered a new trial on the first murder, because the trial judge erred in failing to grant a mistrial after two prejudicial outbursts by an unsavoury Crown witness.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - The accused was charged with two murders committed 17 years apart - An unsavoury Crown witness testified respecting one murder - The trial judge refused to grant a mistrial after the witness blurted out prejudicial and inadmissible statements to the effect that the accused also murdered a third person and tried to murder a fourth - Jury instructions cautioned the jury to disregard the blurted out statements as inadmissible bad character evidence and that they were not to consider the evidence to infer guilt on the two counts charged - The trial judge also gave a strong Vetrovec warning - The Ontario Court of Appeal opined that had the court not allowed the accused's conviction appeal on other grounds (refusal to grant severance), this was one of those rare cases where a mistrial was required for one of the two counts - A jury instruction would not be sufficient to protect against improper use of the prejudicial evidence by the jury - See paragraphs 49 to 65.

Criminal Law - Topic 4737.1

Procedure - Information or indictment - Charge or count - Indictable offences - Severing counts in an indictment - The accused was tried on two counts of first degree murder - The murders were committed 17 years apart - They were dissimilar in terms of motive (execution and mercy killing), weapons and locations - There was no direct evidence of the accused's involvement in either murder - The only similarity was that a police Mr. Big operation resulted in inculpatory statements implicating the accused in both murders - The trial judge refused to sever the counts - The Ontario Court of Appeal held that the judge erred in refusing severance - The judge's decision was both "unjudicial" and caused an injustice - The judge erred in principle in ruling that the absence of similar fact evidence militated against severance - The opposite was the general rule - That error in principle tainted the judge's entire reasoning and was not cured by jury instructions - Where an accused faced two dissimilar counts of murder, trying them together created an overwhelming prejudice that the jury would impermissibly infer that because the accused may have committed one murder he was more likely to have committed the other - In such circumstances, a more stringent application of the severance test was required - Factors favouring severance included the lack of any factual or temporal nexus - The judge accepted, without proper consideration, whether the various inculpable statements to police could be edited in the context of separate trials without harming the probative value of the evidence as a whole - With one exception, the accused made separate statements respecting each murder - Too much weight was given to avoid the cost and inconvenience of multiple trials - Failing to sever the counts also was unjust where the Crown put forward a lot of bad character evidence that was relevant only to one of the murders, yet the jury was exposed to it all - The risk of impermissible propensity reasoning was overwhelming, notwithstanding the strongest jury instruction possible - See paragraphs 26 to 48.

Cases Noticed:

R. v. Szanyi (L.D.) (2010), 262 O.A.C. 160; 254 C.C.C.(3d) 528 (C.A.), refd to. [para. 11].

R. v. Last (G.E.), [2009] 3 S.C.R. 146; 394 N.R. 78; 255 O.A.C. 334, refd to. [para. 26].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 26].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 26].

R. v. Rose (V.) (1997), 100 O.A.C. 67 (C.A.), refd to. [para. 27].

R. v. L.E. et al. (1994), 75 O.A.C. 244; 94 C.C.C.(3d) 228 (C.A.), refd to. [para. 29].

R. v. Cross (R.) (1996), 112 C.C.C.(3d) 410 (Que. C.A.), refd to. [para. 29].

R. v. Cuthbert (D.A.) (1996), 72 B.C.A.C. 227; 119 W.A.C. 227; 106 C.C.C.(3d) 28 (C.A.), affd. [1997] 1 S.C.R. 8; 208 N.R. 303; 86 B.C.A.C. 81; 142 W.A.C. 81; 112 C.C.C.(3d) 96, refd to. [para. 29].

R. v. Khan (M.A.) (1996), 110 Man.R.(2d) 241; 118 W.A.C. 241; 108 C.C.C.(3d) 108 (C.A.), affd. [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161, refd to. [para. 34].

R. v. Savoury (T.) et al. (2005), 201 O.A.C. 40; 200 C.C.C.(3d) 94 (C.A.), refd to. [para. 36].

R. v. Toutissani (R.), [2007] O.A.C. Uned. 455; 2007 ONCA 773, refd to. [para. 58].

R. v. D.C. (2009), 258 O.A.C. 50 (C.A.), refd to. [para. 58].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321, refd to. [para. 63].

R. v. Woods (1989), 32 O.A.C. 122; 49 C.C.C.(3d) 20 (C.A.), refd to. [para. 63].

R. v. R.C. (2001), 159 O.A.C. 373; 161 C.C.C.(3d) 335 (C.A.), refd to. [para. 64].

Counsel:

Ian R. Smith, for the appellant;

Alexander Alvaro, for the respondent.

This appeal was heard on June 30, 2010, before Rosenberg, Blair and Juriansz, JJ.A., of the Ontario Court of Appeal.

On October 26, 2010, Blair, J.A., released the following judgment for the Court.