R. v. Kent (P.S.), 2005 BCCA 238

• Judge: Southin, Prowse and Low, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 26, 2005
• Jurisdiction: British Columbia
• Citations: 2005 BCCA 238;(2005), 212 B.C.A.C. 98 (CA)

R. v. Kent (P.S.) (2005), 212 B.C.A.C. 98 (CA);

    350 W.A.C. 98

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. MY.009

Regina (respondent) v. Paul Stanley Kent (appellant)

(CA030638; 2005 BCCA 238)

Indexed As: R. v. Kent (P.S.)

British Columbia Court of Appeal

Southin, Prowse and Low, JJ.A.

April 26, 2005.

Summary:

The accused killed his wife by strangling her and was convicted by a jury of second degree murder. The accused appealed, submitting that the trial judge's instructions to the jury on provocation and the effect of intoxication on intent were confusing.

The British Columbia Court of Appeal allowed the appeal and ordered a new trial. The jurors were likely confused about the defence of provocation by the trial judge's jury charge and subsequent instructions in response to their questions on provocation posed during their deliberations.

Criminal Law - Topic 1285

Murder - Provocation - Jury charge - An accused admittedly strangled his wife to death, but raised the issue of intoxication on intent to commit murder and the defence of provocation by insults - The British Columbia Court of Appeal set aside the accused's second degree murder conviction and ordered a new trial - Where a jury charge was required on both intoxication and provocation, the jury had to be instructed to keep the two issues separate and consider them in their appropriate order - Provocation arose only after the jury was satisfied that the Crown proved beyond a reasonable doubt that the accused had the requisite intent to murder - The trial judge, in instructing the jury and reinstructing them following questions showing confusion respecting intoxication and provocation, failed to separate the element of intent and the defence of provocation - Accordingly, there was a concern that the jury did not appreciate that the defence of provocation was available to reduce murder to manslaughter even if the Crown proved that the accused had the requisite intent for murder - At the very least, the jury was confused as to the defence of provocation.

Criminal Law - Topic 1289

Murder - Provocation - Evidence and proof - The British Columbia Court of Appeal stated that "when the evidence discloses an air of reality to the defence of provocation, the Crown, having proven intent, must prove beyond a reasonable doubt that the accused was not provoked. It might do this by: proving that the wrongful act or insult alleged did not occur; or that, if it did occur, it was not sufficient to deprive an ordinary person of the power of self-control; or that the accused was not in fact deprived of the power of self-control by the wrongful act or insult; or that the unlawful act causing death was not a sudden response to the wrongful act or insult" - See paragraph 17.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (incl. intent and drunkenness) - [See Criminal Law - Topic 1285 ].

Criminal Law - Topic 4336.5

Procedure - Jury - The law - Questions by jury - The British Columbia Court of Appeal stated that "questions submitted by a jury during its deliberations must be addressed by the trial judge with great care" - Given that questions from a jury denoted confusion or a lack of understanding, a trial judge must give a correct and comprehensive response to the question - See paragraph 49.

Criminal Law - Topic 4350.4

Procedure - Charge or directions - Jury or judge alone - Use of "rolled-up" charge - The British Columbia Court of Appeal discussed the use of a "rolled-up" charge in which the evidence underlying defences such as provocation and self-defence are rolled into the instruction on the element of intent - The court noted that the jury in the case at bar, because of the use and reuse of the "rolled-up" charge, likely became confused about the defence of provocation (i.e., jury might not have appreciated that the defence of provocation was available even if the Crown proved the requisite intent for murder) - See paragraphs 22 to 30.

Criminal Law - Topic 4391

Procedure - Charge or directions - Jury or judge alone - Redirection or further direction - [See Criminal Law - Topic 4336.5 ].

Cases Noticed:

R. v. Parent (R.), [2001] 1 S.C.R. 761; 268 N.R. 372, refd to. [para. 17].

R. v. Gilling (S.M.) (1997), 101 O.A.C. 297; 117 C.C.C.(3d) 444 (C.A.), refd to. [para. 17].

R. v. Nealy (1986), 17 O.A.C. 164; 30 C.C.C.(3d) 460 (C.A.), refd to. [para. 23].

R. v. Clow (1985), 44 C.R.(3d) 228 (Ont. C.A.), refd to. [para. 23].

R. v. Campbell (1977), 38 C.C.C.(3d) 6 (Ont. C.A.), refd to. [para. 23].

R. v. Desveaux (1986), 13 O.A.C. 1; 26 C.C.C.(3d) 88 (C.A.), refd to. [para. 23].

R. v. Fraser (P.) (2001), 151 O.A.C. 137; 159 C.C.C.(3d) 540 (C.A.), refd to. [para. 23].

R. v. Bob (1990), 40 O.A.C. 184; 78 C.R.(3d) 102 (C.A.), refd to. [para. 23].

R. v. Williams (B.L.) (1995), 58 B.C.A.C. 53; 96 W.A.C. 53; 98 C.C.C.(3d) 176 (C.A.), refd to. [para. 23].

R. v. Trecroce (1980), 55 C.C.C.(2d) 202 (Ont. C.A.), refd to. [para. 25].

R. v. Gunning (J.J.) (2003), 186 B.C.A.C. 225; 306 W.A.C. 225 (C.A.), refd to. [para. 27].

R. v. Perrault, [1971] S.C.R. 196, refd to. [para. 28].

R. v. Robinson (D.), [1996] 1 S.C.R. 683; 194 N.R. 181; 72 B.C.A.C. 161; 119 W.A.C. 161, refd to. [para. 30].

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. 33].

R. v. Canute (S.F.) (1993), 25 B.C.A.C. 277; 43 W.A.C. 277; 80 C.C.C.(3d) 403 (C.A.), refd to. [para. 33].

R. v. McMaster (R.A.) et al., [1996] 1 S.C.R. 740; 194 N.R. 278; 181 A.R. 199; 116 W.A.C. 199, refd to. [para. 33].

R. v. Naglik, [1993] 3 S.C.R. 122; 157 N.R. 161; 65 O.A.C. 161, refd to. [para. 49].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 49].

R. v. Thomas (1835), 7 Car. & P. 817; 173 E.R. 356, refd to. [para. 66].

Parker v. Reginam, [1964] 2 All E.R. 641 (P.C.), refd to. [para. 68].

R. v. Picariello and Lassandra (1923), 39 C.C.C. 1 (Alta. C.A.), refd to. [para. 72].

Counsel:

J.I. Heller, for the appellant;

B. MacLean, for the respondent.

This appeal was heard on January 19, 2005, at Vancouver, B.C., before Southin, Prowse and Low, JJ.A., of the British Columbia Court of Appeal.

On April 26, 2005, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Low, J.A. (Prowse, J.A., concurring) - see paragraphs 1 to 56;

Southin, J.A. - see paragraphs 57 to 77.