R. v. Labossière (D.J.),

• Jurisdiction: Manitoba
• Judge: Chartier, C.J.M., Beard and Burnett, JJ.A.
• Neutral Citation: 2014 MBCA 89
• Citation: (2014), 310 Man.R.(2d) 101 (CA),2014 MBCA 89,310 ManR(2d) 101,(2014), 310 ManR(2d) 101 (CA),310 Man.R.(2d) 101
• Date: 30 April 2014
• Court: Court of Appeal (Manitoba)

R. v. Labossière (D.J.) (2014), 310 Man.R.(2d) 101 (CA);

      618 W.A.C. 101

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. OC.002

Her Majesty The Queen (respondent) v. Denis Jérome Labossière (accused/appellant)

(AR 12-30-07743; 2014 MBCA 89)

Indexed As: R. v. Labossière (D.J.)

Manitoba Court of Appeal

Chartier, C.J.M., Beard and Burnett, JJ.A.

September 25, 2014.

Summary:

The accused was convicted of three counts of first degree murder respecting the deaths of his brother and his parents. At trial, a Crown witness, Toupin, testified that he and another man committed the murders and that they had been paid to do so by the accused. The accused appealed his convictions on two grounds: (1) that the trial judge erred when she permitted the Crown to lead evidence concerning the accused's prior criminal involvement; and (2) that the trial judge erred when, having identified Toupin as an unsavory or Vetrovec witness, she instructed the jury that the testimony of certain members of the accused's family was capable of confirming Toupin's evidence.

The Manitoba Court of Appeal dismissed the appeal. The court was satisfied that the evidence of prior criminal involvement was relevant, probative and properly admitted, and that the trial judge did not err when she presented the family members' evidence to the jury as "potentially confirmatory" of Toupin's testimony.

Criminal Law - Topic 4353

Procedure - Charge or directions - Jury or judge alone - Directions regarding corroboration or confirmatory evidence - [See all Criminal Law - Topic 5515 ].

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - [See all Criminal Law - Topic 5515 ].

Criminal Law - Topic 5202

Evidence and witnesses - General - Admissibility - Whether relevant and material - [See Evidence - Topic 1185 ].

Criminal Law - Topic 5515

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Corroboration or confirmatory evidence - The Manitoba Court of Appeal stated that "The determination by a trial judge of whether evidence is capable of being confirmatory of the testimony of a Vetrovec witness is a question of law and is reviewed on appeal on the standard of correctness ... If the evidence is capable in law of being confirmatory, the trial judge's decision to identify the evidence in that fashion in his/her charge to the jury is an exercise of judicial discretion and is owed deference; an appellate court should not intervene simply because it would have drawn a different conclusion ... While these general principles appear straightforward, there may be a subtle distinction between the question of whether evidence which offends a principle of law is capable of being confirmatory ... and the question of whether evidence, from a purely factual perspective , is capable of being confirmatory" - See paragraphs 41 and 42.

Criminal Law - Topic 5515

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Corroboration or confirmatory evidence - The Manitoba Court of Appeal stated that "There have been, and will continue to be, clear cases where allegedly confirmatory evidence cannot possibly be confirmatory from a purely factual perspective. In such an unusual or egregious case, legal error will be said to have resulted if this evidence is left with the jury as potentially confirmatory ... However, the unusual or egregious case will be the exception as there is a wide range of evidence that has been identified as capable of being confirmatory. Significantly, it is well established that confirmatory evidence need not incriminate an accused. ...  Additionally, and as recently noted by this Court in Monkman, '[e]ven weak confirmatory evidence is properly left with a jury' ... (assuming, of course, that it does not offend any other evidentiary principles)" - See paragraphs 43 and 44.

Criminal Law - Topic 5515

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Corroboration or confirmatory evidence - The Manitoba Court of Appeal referred to a summary of the important characteristics of confirmatory evidence - See paragraph 51.

Criminal Law - Topic 5515

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Corroboration or confirmatory evidence - The Manitoba Court of Appeal reviewed the case law and discussed generally the issue of whether information shared with an unsavory (i.e., Vetrovec) witness before he or she provided a statement to police was capable of confirming the testimony of the unsavory witness - See paragraphs 45 to 76.

Criminal Law - Topic 5515

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Corroboration or confirmatory evidence - The accused was convicted of murdering his brother and his parents - At trial, a Crown witness, Toupin, testified under an immunity agreement that the accused paid him to commit the murders - Toupin, however, was exposed to police theories and statements by the accused's family members before making his statement to police - The trial judge charged the jury that the family members' testimony as to the accused's comments before and after the murders was "potentially confirmatory" of Toupin's evidence - The accused appealed his convictions, arguing that the trial judge erred in her instructions on confirmatory evidence - The Manitoba Court of Appeal dismissed the appeal - The trial judge did not err - The family members' evidence was capable of enhancing the trustworthiness of Toupin's evidence and deference was owed to the trial judge's ruling - See paragraphs 45 to 76.

Evidence - Topic 1185

Relevant facts, relevance and materiality - Res gestae (incl. narrative) - Evidence to show context and background - The accused was convicted of three counts of first degree murder - At trial, a Crown witness, Toupin, testified that the accused paid he and another man to commit the murders - The accused appealed his convictions, arguing that the trial judge erred in permitting the Crown to lead evidence concerning the accused's prior criminal involvement in drug trafficking because it was extremely prejudicial and could not be cured with a jury instruction - The Manitoba Court of Appeal dismissed the appeal - The evidence of prior criminal involvement was relevant, probative and properly admitted - The evidence was admitted to provide background as to how the relationship between the accused and Toupin developed - See paragraphs 19 to 25.

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; 67 C.C.C.(2d) 1; 27 C.R.(3d) 304, refd to. [para. 7].

R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 116 C.C.C.(3d) 481 (C.A.), refd to. [para. 22].

R. v. Lamirande (S.C.) et al., [2002] 9 W.W.R. 17; 163 Man.R.(2d) 163; 269 W.A.C. 163; 164 C.C.C.(3d) 299; 2002 MBCA 41, refd to. [para. 22].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 28].

R. v. Sanderson (R.K.) (2003), 177 Man.R.(2d) 260; 304 W.A.C. 260; 180 C.C.C.(3d) 53; 2003 MBCA 109, refd to. [para. 30].

R. v. Van (D.) (2009), 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 31].

R. v. Monkman (G.S.) (2012), 288 Man.R.(2d) 1; 564 W.A.C. 1; 2012 MBCA 87, refd to. [para. 34].

R. v. Chartrand (R.G.) (2014), 310 Man.R.(2d) 85; 618 W.A.C. 85; 2014 MBCA 87, refd to. [para. 41].

R. v. Grant (I.M.) (2009), 236 Man.R.(2d) 54; 448 W.A.C. 54; 2009 MBCA 9, leave to appeal denied (2009), 398 N.R. 397 (S.C.C.), refd to. [para. 41].

R. v. Flores (R.B.) (2013), 288 Man.R.(2d) 173; 564 W.A.C. 173; 2013 MBCA 4, refd to. [para. 41].

R. v. Richard (D.R.) et al. (2013), 299 Man.R.(2d) 1; 590 W.A.C. 1; 2013 MBCA 105, refd to. [para. 41].

R. v. Dhillon (S.) (2002), 161 O.A.C. 231; 166 C.C.C.(3d) 262 (C.A.), refd to. [para. 43].

R. v. Kehler (R.A.), [2004] 1 S.C.R. 328; 317 N.R. 30; 346 A.R. 19; 320 W.A.C. 19; 2004 SCC 11, refd to. [para. 44].

R. v. Korski (C.T.) (2009), 236 Man.R.(2d) 259; 448 W.A.C. 259; 2009 MBCA 37, refd to. [para. 44].

R. v. McFarlane (D.L.), [2012] O.A.C. Uned. 303; 2012 ONCA 355, leave to appeal refused (2013), 466 N.R. 398 (S.C.C.), refd to. [para. 44].

R. v. Saleh (F.) (2013), 314 O.A.C. 60; 2013 ONCA 742, refd to. [para. 44].

R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), refd to. [para. 46].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 141 C.C.C.(3d) 321; 2000 SCC 11, refd to. [para. 47].

R. v. Chenier (P.) et al. (2006), 207 O.A.C. 104; 205 C.C.C.(3d) 333 (C.A.), refd to. [para. 53].

R. v. Luciano (M.) (2011), 273 O.A.C. 273; 2011 ONCA 89, refd to. [para. 53].

R. v. Reierson (B.E.) (2010), 291 B.C.A.C. 205; 492 W.A.C. 205; 2010 BCCA 381, refd to. [para. 59].

R. v. Buric (G.J.) et al., (1996), 90 O.A.C. 321 (C.A.), affd. [1997] 1 S.C.R. 535; 209 N.R. 241; 98 O.A.C. 398, refd to. [para. 60].

R. v. Boyce (A.) (2014), 316 O.A.C. 310; 2014 ONCA 150, refd to. [para. 60].

R. v. Drabinsky (G.) (2011), 284 O.A.C. 222; 2011 ONCA 582, refd to. [para. 64].

R. v. Soomel (R.) (2006), 221 B.C.A.C. 139; 364 W.A.C. 139; 205 C.C.C.(3d) 45; 2006 BCCA 17, refd to. [para. 66].

R. v. C.C.F., [1997] 3 S.C.R. 1183; 220 N.R. 362; 104 O.A.C. 321, refd to. [para. 67].

R. v. Gagnon (Y.R.J.) et al. (2000), 136 O.A.C. 116 (C.A.), refd to. [para. 67].

R. v. McCann (M.), [2013] B.C.A.C. Uned. 15; 2013 BCCA 69, refd to. [para. 72].

Authors and Works Noticed:

Harris, Nikos, Vetrovec Cautions and Confirmatory Evidence: A Necessarily Complex Relationship (2005), 31 C.R.(6th) 216, pp. 225, 226 [para. 57].

Counsel:

G.F. Wiebe and S.T. Funk, for the appellant;

A.Y. Kotler, for the respondent.

This appeal was heard on April 30, 2014, before Chartier, C.J.M., Beard and Burnett, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court, by Burnett, J.A., on September 25, 2014.