R. v. Kokotailo (J.R.), 2008 BCCA 168

JudgeSmith, Chiasson and Tysoe, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateMay 02, 2008
JurisdictionBritish Columbia
Citations2008 BCCA 168;(2008), 254 B.C.A.C. 262 (CA)

R. v. Kokotailo (J.R.) (2008), 254 B.C.A.C. 262 (CA);

    426 W.A.C. 262

MLB headnote and full text

Temp. Cite: [2008] B.C.A.C. TBEd. JN.001

Regina (respondent) v. Jamie Robert Kokotailo (appellant)

(CA033020; 2008 BCCA 168)

Indexed As: R. v. Kokotailo (J.R.)

British Columbia Court of Appeal

Smith, Chiasson and Tysoe, JJ.A.

May 2, 2008.

Summary:

The accused admittedly stabbed his wife nine times when she returned home following a week-end trip to visit the man with whom she was having an extra-marital affair. The Crown alleged that the accused knew of the affair and planned to kill his wife. The accused submitted that he had acted in self-defence when provoked by his wife with a knife. He was convicted by a jury of first degree murder. The accused appealed his conviction on the grounds "that the trial judge erred in failing to instruct the jury on the proper use of prior consistent and inconsistent statements of witnesses; that the trial judge erred in failing to instruct the jury that he had a constitutional right to prior disclosure of the case against him in light of Crown counsel's submission that he had tailored his evidence to fit the disclosure; and that Crown counsel's address to the jury was so inflammatory and prejudicial that he did not receive a fair trial." The Crown submitted that if the trial judge erred in failing to instruct the jury on the permissible uses of prior statements of witnesses, s. 686(1)(b)(iii) of the Criminal Code applied to sustain the conviction.

The British Columbia Court of Appeal allowed the appeal and ordered a new trial on the ground that the jury was not properly instructed on the proper use of prior consistent and inconsistent statements of witnesses. Section 686(1)(b)(iii) did not apply, because the verdict would not necessarily have been the same had the jury been properly instructed.

Criminal Law - Topic 4375.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior inconsistent statements - The accused admittedly stabbed his wife nine times when she returned home following a week-end trip to visit the man with whom she was having an extra-marital affair - The Crown alleged that the accused knew of the affair and planned to kill his wife - The accused submitted that he had acted in self-defence when provoked by his wife with a knife - He was convicted by a jury of first degree murder - The accused appealed his conviction on the grounds "that the trial judge erred in failing to instruct the jury on the proper use of prior consistent and inconsistent statements of witnesses" - The wife's two daughters, who witnessed the event, gave evidence that was both consistent and inconsistent with statements that they had made prior to trial - The trial judge did not instruct the jury concerning the permissible and non-permissible uses of prior consistent and inconsistent statements - The jury was not told that a prior inconsistent statement may be used in assessing credibility, but cannot be used for the truth of its contents - The jury was also not told that a prior consistent statement, which was generally inadmissible, could not be used to bolster a witness's credibility by treating it as confirmatory of the truth of the statement - The British Columbia Court of Appeal held that the non-direction was an error, as the jury would not have understood the limited uses of the prior consistent and inconsistent statements - The court refused to apply the curative provisions of s. 686(1)(b)(iii) of the Criminal Code, as the verdict would not necessarily have been the same had the jury been properly instructed - The court ordered a new trial - See paragraphs 29 to 47, 63 to 78.

Criminal Law - Topic 4375.3

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior consistent statements - [See Criminal Law - Topic 4375.2 ].

Criminal Law - Topic 4419

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Intemperate or improper statements - An accused convicted by a jury of first degree murder appealed on the ground that the Crown made inflammatory statements in its closing address - The British Columbia Court of Appeal held that the nature and tone of the Crown's remarks fell short in some respects of the high standard expected and, although not entirely divorced from the evidence, bordered on the inflammatory - However, the court stated that notwithstanding the Crown's "unseemly" remarks, "I do not think the failure of the trial judge to say anything to the jury to attempt to ameliorate any adverse effects of these rhetorical exuberances amounted to an error of law" - See paragraphs 60 to 62.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where jury charge incomplete or in error - [See Criminal Law - Topic 4375.2 ].

Criminal Law - Topic 5434

Evidence - Witnesses - Cross-examination of accused - Improper questions - What constitute - The Crown, in cross-examining the accused and in its closing address to the jury, noted that the accused had, through Crown disclosure, an opportunity to review every piece of evidence against him before he testified, thereby giving him the advantage of tailoring his own testimony to respond to the Crown's case - The British Columbia Court of Appeal stated that "regrettably, neither counsel nor the trial judge told the jury that the [accused] had a constitutional right to prior disclosure of the Crown's case against him" - The court stated that "since the [accused] himself raised the Crown disclosure in aid of his defence, the approach taken by Crown counsel in cross-examination and in submissions was legitimate" - See paragraphs 48 to 59.

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - [See Criminal Law - Topic 4375.2 ].

Evidence - Topic 4751

Witnesses - Examination - Prior inconsistent statements - Use of and effect of use of - [See Criminal Law - Topic 4375.2 ].

Cases Noticed:

Queen Caroline's Case (1820), 129 E.R. 976; 2 Brod. & B. 284 (H.L.), refd to. [para. 31, footnote 1].

R. v. Mannion, [1986] 2 S.C.R. 272; 69 N.R. 189; 75 A.R. 16, refd to. [para. 41].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 43].

R. v. McVay (1982), 66 C.C.C.(2d) 512 (Ont. C.A.), refd to. [para. 43].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293, refd to. [para. 44].

R. v. Stirling (B.J.) (2008), 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62; 2008 SCC 10, refd to. [para. 44].

R. v. Vaniderstine, [2003] O.J. No. 4413 (C.A.), dist. [para. 46].

R. v. Wiebe (G.) (2006), 207 O.A.C. 209 (C.A.), dist. [para. 46].

R. v. White (I.) (1999), 117 O.A.C. 246; 132 C.C.C.(3d) 373 (C.A.), refd to. [para. 50].

R. v. Cavan (H.) et al. (1999), 126 O.A.C. 201; 139 C.C.C.(3d) 449 (C.A.), leave to appeal dismissed (1999), 254 N.R. 396; 134 O.A.C. 397 (S.C.C.), refd to. [para. 56].

R. v. Khan (A.R.) (1998), 109 B.C.A.C. 299; 177 W.A.C. 299; 126 C.C.C.(3d) 523 (C.A.), refd to. [para. 57].

R. v. R.B.B. (2001), 147 B.C.A.C. 225; 241 W.A.C. 225; 152 C.C.C.(3d) 437 (C.A.), refd to. [para. 60].

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. 64].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281; 2007 SCC 6, refd to. [para. 68].

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. 77].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), ྷ 16.119 [para. 31, footnote 1].

Counsel:

J.J. Blazina, for the appellant;

S.J. Brown, for the respondent.

This appeal was heard on September 13, 2007, at Vancouver, B.C., before Smith, Chiasson and Tysoe, JJ.A., of the British Columbia Court of Appeal.

On May 2, 2008, the judgment of the Court was delivered and the following opinions were filed:

Smith, J.A. (Tysoe, J.A., concurring) - see paragraphs 1 to 79;

Chiasson, J.A. - see paragraphs 80 to 81.

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14 practice notes
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    • Canada
    • Mondaq Canada
    • May 22, 2020
    ...Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170, R. v. M.D., 2020 ONCA 290, R. v. Cavan (1999), 139 C.C.C. (3d) 449 (Ont. C.A.), R. v. Kokotailo, 2008 BCCA 168, R. v. Khan (1998), 126 C.C.C. (3d) 523 (B.C.C.A.), R. v. Marshall (2005), 77 O.R. (3d) 81, R. v. Quartey, 2018 ABCA 12, 430 D.L.R. (4th) 3......
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    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...502 R v Kociukic, 2011 MBCA 85, aff’d 2012 SCC 15 ...............................................651 R v Kokotailo, 2008 BCCA 168 .......................................................... 633, 635, 648 R v Kong, 2003 ABQB 192 ......................................................................
  • The Prosecutor
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...at paras 28–49 (Ont CA), leave to appeal to SCC refused, [2000] SCCA No 600; Marshall , above note 280 at paras 74–75; R v Kokotailo , 2008 BCCA 168 at paras 56–58 [ Kokotailo ]. 282 FEE , above note 273 at paras 71 and 76. 283 R v Turcotte , 2005 SCC 50 at paras 41–46 [ Turcotte ]; R v Woj......
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    ...accused on the disclosure first raised by the accused: R v Cavan (1999), 139 CCC (3d) 449 at paras 42-45 (Ont CA) [Cavan]; R v Kokotailo, 2008 BCCA 168 [Kokotailo] at paras 56, 58. Indeed, the records exception outlined in White is perhaps better understood as merely an example of when ......
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  • R v McKnight, 2022 ABCA 251
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    • July 18, 2022
    ...accused on the disclosure first raised by the accused: R v Cavan (1999), 139 CCC (3d) 449 at paras 42-45 (Ont CA) [Cavan]; R v Kokotailo, 2008 BCCA 168 [Kokotailo] at paras 56, 58. Indeed, the records exception outlined in White is perhaps better understood as merely an example of when ......
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    • January 29, 2009
    ...[para. 23]. R. v. Cavan (H.) et al. (1999), 126 O.A.C. 201; 139 C.C.C.(3d) 449 (C.A.), refd to. [para. 24]. R. v. Kokotailo (J.R.) (2008), 254 B.C.A.C. 262; 426 W.A.C. 262; 232 C.C.C.(3d) 279; 2008 BCCA 168, refd to. [para. R. v. Khan (A.R.) (1998), 109 B.C.A.C. 299; 177 W.A.C. 299; 126 C.C......
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    • British Columbia Court of Appeal (British Columbia)
    • November 22, 2011
    ...686(1)(b)(iii) of the Criminal Code applied to sustain the conviction. The British Columbia Court of Appeal, in a judgment reported (2008), 254 B.C.A.C. 262; 426 W.A.C. 262 , allowed the appeal and ordered a new trial on the ground that the jury was not properly instructed on the proper us......
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    ...172]. R. v. Grover, [1991] 3 S.C.R. 387; 131 N.R. 80; 50 O.A.C. 185; 67 C.C.C.(3d) 576, refd to. [para. 172]. R. v. Kokotailo (J.R.) (2008), 254 B.C.A.C. 262; 426 W.A.C. 262; 232 C.C.C.(3d) 279; 2008 BCCA 168, refd to. [para. 185]. R. v. K.M.E., [2009] 2 S.C.R. 19; 389 N.R. 20; 272 B.C.A.C.......
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2 firm's commentaries
  • Court Of Appeal Summaries (May 11 ' 15, 2020)
    • Canada
    • Mondaq Canada
    • May 22, 2020
    ...Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170, R. v. M.D., 2020 ONCA 290, R. v. Cavan (1999), 139 C.C.C. (3d) 449 (Ont. C.A.), R. v. Kokotailo, 2008 BCCA 168, R. v. Khan (1998), 126 C.C.C. (3d) 523 (B.C.C.A.), R. v. Marshall (2005), 77 O.R. (3d) 81, R. v. Quartey, 2018 ABCA 12, 430 D.L.R. (4th) 3......
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  • The Prosecutor
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...at paras 28–49 (Ont CA), leave to appeal to SCC refused, [2000] SCCA No 600; Marshall , above note 280 at paras 74–75; R v Kokotailo , 2008 BCCA 168 at paras 56–58 [ Kokotailo ]. 282 FEE , above note 273 at paras 71 and 76. 283 R v Turcotte , 2005 SCC 50 at paras 41–46 [ Turcotte ]; R v Woj......
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    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...502 R v Kociukic, 2011 MBCA 85, aff’d 2012 SCC 15 ...............................................651 R v Kokotailo, 2008 BCCA 168 .......................................................... 633, 635, 648 R v Kong, 2003 ABQB 192 ......................................................................
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