R. v. Kerton (R.E.) et al.,

• Jurisdiction: New Brunswick
• Judge: Turnbull, Drapeau and Robertson, JJ.A.
• Neutral Citation: 2002 NBCA 40
• Citation: 2002 NBCA 40,(2002), 250 N.B.R.(2d) 177 (CA),250 NBR (2d) 177,169 CCC (3d) 561,3 CR (6th) 331,[2002] NBJ No 179 (QL),650 APR 177,250 NBR(2d) 177,650 A.P.R. 177,(2002), 250 NBR(2d) 177 (CA),[2002] N.B.J. No 179 (QL),250 N.B.R.(2d) 177
• Date: 30 May 2002
• Court: Court of Appeal (New Brunswick)

R. v. Kerton (R.E.) (2002), 250 N.B.R.(2d) 177 (CA);

    250 R.N.-B.(2e) 177; 650 A.P.R. 177

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[French language version follows English language version]

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

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Temp. Cite: [2002] N.B.R.(2d) TBEd. JN.007

Ronald E. Kerton and Marilyn K. Kerton (appellants) v. Her Majesty The Queen (respondent)

(123/01/CA; 2002 NBCA 40)

Indexed As: R. v. Kerton (R.E.) et al.

New Brunswick Court of Appeal

Turnbull, Drapeau and Robertson, JJ.A.

May 30, 2002.

Summary:

The accused (husband and wife) were found guilty by a jury of conveying know­ingly false infor­mation intended to alarm the recipient (George). The husband had an extra-marital affair with George. When the wife learned of the infidelity, she called George to falsely advise her that the husband had AIDS. Thirty-six hours later, the hus­band and wife commenced a second series of calls. George was frightened and alarmed. The accused had no prior records and had led exemplary lives. However, the 36 hour gap between calls displayed pre­meditation (rather than a momentary lapse of judgment) and a strong desire to harm George. The accused sought absolute dis­charges.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment report­ed 240 N.B.R.(2d) 242; 622 A.P.R. 242, held that absolute discharges were inap­pro­priate. The court sentenced each accused to a $500 fine, a $75 fine victim surcharge, 10 months' probation and 100 hours of com­munity service. The accused appealed the convictions, submitting that the trial judge erred in instructing the jury on reasonable doubt. The accused also sought leave to appeal the sentences.

The New Brunswick Court of Appeal dismissed the conviction appeal and denied leave to appeal the sentences.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The ac­cused appealed convictions on the ground that the trial judge failed to pro­perly in­struct the jury on reasonable doubt - Al­though the trial judge properly defined reasonable doubt according to R. v. Lif­chus, the accused submitted that instructing the jury to convict only if they were sure of guilt was not sufficient - The jury should have been instructed that the rea­sonable doubt standard fell closer to abso­lute certainty than to proof on a balance of probabilities (as recommended by the S.C.C. in the subsequent case of R. v. Starr) - The New Brunswick Court of Appeal rejected this ground of appeal, stating that "it is only in cases where the charge fails to define the criminal standard of proof in accordance with Lifchus that a failure to situate that standard in the man­ner suggested by the majority in Starr can become significant." - See paragraphs 6 to 10.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - The accused appealed their convictions on the ground that the trial judge failed to pro­perly instruct the jury on the application of reasonable doubt to the credibility of the accused - The New Brunswick Court of Appeal rejected this ground of appeal - While the trial judge failed to use the three step instruction in R. v. D.W., the jury was ade­quately instructed how to assess the ac­cused's credi­bility - Particu­larly, the jury was instructed to find the accused not guilty if, after careful con­sideration, they did not know who to believe - The court noted that recom­mended instructions need not be given word for word as some magic incantation - The jury charge contained the essence of R. v. D.W. (i.e., accused not to be found guilty because his testimony is not believed or is less credible than an­other witness's testimony) - The jury was properly told to acquit the accused even if they disbelieved his testimony, if they still had a reasonable doubt as to guilt on the basis of all of the evidence - See para­graphs 11 to 22.

Criminal Law - Topic 4430

Procedure - Verdicts, discharges and dis­missals - Absolute or unconditional dis­charge in lieu of conviction - [See Crimi­nal Law - Topic 5976 ].

Criminal Law - Topic 5976

Sentence - False message to injure or alarm - The accused (husband and wife) were found guilty under s. 372(1) of the Criminal Code of conveying knowingly false information intended to alarm the recipient (George) - The husband had an extra-marital affair with George - When the wife learned of the infidelity, she called George to falsely advise her that the husband had AIDS - Thirty-six hours later, the husband and wife commenced a second series of calls - George was frightened and alarmed - The accused had no prior rec­ords and had led exemplary lives - How­ever, the 36 hour gap between calls dis­played premeditation (rather than a mo­mentary lapse of judgment) and a strong desire to harm George - The accused sought absolute discharges - The trial judge held that absolute dis­charges were inappropriate - The court sentenced each accused to a $500 fine, a $75 fine victim surcharge, 10 months' probation and 100 hours of community service - The New Brunswick Court of Appeal denied leave to appeal sentence - See paragraphs 23 to 26.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 2].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 6].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 7].

R. v. Durette (D.) (2002), 247 N.B.R.(2d) 149; 641 A.P.R. 149 (C.A.), dist. [para. 8].

R. v. Rhee (D.G.) (2001), 275 N.R. 281; 157 B.C.A.C. 30; 256 W.A.C. 30; 204 D.L.R.(4th) 618 (S.C.C.), refd to. [para. 9].

R. v. C.W.H. (1991), 3 B.C.A.C. 205; 7 W.A.C. 205; 68 C.C.C.(3d) 146 (C.A.), refd to. [para. 14].

R. v. Avetysan (A.), [2000] 2 S.C.R. 745; 262 N.R. 96; 195 Nfld. & P.E.I.R. 338; 568 A.P.R. 338, refd to. [para. 17].

R. v. D.W.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 17].

R. v. R.K.J. (1998), 207 N.B.R.(2d) 24; 529 A.P.R. 24 (C.A.), refd to. [para. 24].

R. v. H.S.L. (2000), 231 N.B.R.(2d) 358; 597 A.P.R. 358 (C.A.), refd to. [para. 25].

R. v. Parent (D.) (2001), 236 N.B.R.(2d) 370; 611 A.P.R. 370 (C.A.), refd to. [para. 25].

R. v. R.P. (2001), 245 N.B.R.(2d) 179; 636 A.P.R. 179 (C.A.), refd to. [para. 25].

R. v. Daigle (M.), [2002] N.B.R.(2d) Supp. No. 4, refd to. [para. 25].

Authors and Works Noticed:

Ferguson, G.A., and Bouck, J.C., Canadian Criminal Jury Instructions (3rd Ed. 1999), vol. 1, s. 4.04 [para. 13].

Gans, J., The W.(D.) Direction, Part I (2000), 43 Crim. L.Q. 212, pp. 225 to 228 [para. 20].

Counsel:

Patrick E. Hurley, Q.C., for the appellants;

Anthony Allman, Q.C., for the respondent.

This appeal was heard on May 14, 2002, before Turnbull, Drapeau and Robertson, JJ.A., of the New Brunswick Court of Ap­peal.

On May 30, 2002, Drapeau, J.A., delivered the following judgment for the Court of Appeal.