R. v. Lefebvre (A.) et al., (1998) 102 B.C.A.C. 299 (YukCA)

• Judge: Hollinrake, Goldie and Rowles, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: February 03, 1998
• Jurisdiction: Yukon
• Citations: (1998), 102 B.C.A.C. 299 (YukCA)

R. v. Lefebvre (A.) (1998), 102 B.C.A.C. 299 (YukCA);

    166 W.A.C. 299

MLB headnote and full text

Temp. Cite: [1998] B.C.A.C. TBEd. MR.032

Regina (respondent) v. Michel Brazeau and Auguste Lefebvre (appellants)

(YU328/YU331)

Indexed As: R. v. Lefebvre (A.) et al.

Yukon Court of Appeal

Hollinrake, Goldie and Rowles, JJ.A.

February 3, 1998.

Summary:

Two accused appealed their conviction by a jury on one count of attempted extortion, contrary to s. 346 of the Criminal Code.

The Yukon Court of Appeal allowed the appeals and ordered a new trial.

Courts - Topic 555

Judges - Powers - To intervene in exam­ination of witnesses - The Yukon Court of Appeal referred to the test as to when an appellate court will set aside a verdict on the ground of excessive intervention by the trial judge - See paragraphs 25 to 28.

Courts - Topic 555

Judges - Powers - To intervene in exam­ination of witnesses - The Yukon Court of Appeal stated that a trial judge may ques­tion a witness to clear up ambiguities, to explore some matter which the evidence of a witness has left vague or to put questions which should have been asked to bring out some relevant matter - See paragraph 25.

Courts - Topic 555

Judges - Powers - To intervene in exam­ination of witnesses - Two accused were jointly charged with attempted extortion - During each accused's testimony, the trial judge intervened many times to personally ques­tion each accused - In a number of instances the judge entered the arena as an advocate, i.e., the judge took over the cross-examination and did so in such a way as to undermine the witness's credi­bility - The judge also interrupted a re-examination of one accused, in an area which should have been left to Crown counsel, who was doing an entirely adequate job - The Yukon Court of Appeal held that the judge's interference went too far - See paragraphs 22 to 40.

Criminal Law - Topic 4362

Procedure - Jury charge - Directions re­garding separation of evidence against several accused in a joint trial - Two accused were jointly charged with attempted extortion by threats - No in­struction was given to the jury about what evidence they could consider as against each accused - The charge made clear that the verdict in relation to each accused had to be considered separately, but did not give any guidance to the jury as to what evidence they could consider when arriving at their verdict with respect to each accused - The Yukon Court of Appeal held that this error, combined with others, warranted a new trial - See paragraphs 11 to 21.

Cases Noticed:

R. v. Koufis, [1941] S.C.R. 481, refd to. [para. 18].

R. v. Torbiak and Campbell (1974), 18 C.C.C.(2d) 229 (Ont. C.A.), refd to. [para. 23].

R. v. Brouillard, [1985] 1 S.C.R. 39; 57 N.R. 168; 17 C.C.C.(3d) 193; 44 C.R.(3d) 124; 16 D.L.R.(4th) 447, consd. [para. 24].

R. v. Valley (1986), 13 O.A.C. 89; 26 C.C.C.(3d) 207 (C.A.), refd to. [para. 25].

R. v. W., [1995] 4 S.C.R. 51; 206 N.R. 161; 96 O.A.C. 244; 44 C.R.(4th) 317, refd to. [para. 26].

R. v. W. (1994), 75 O.A.C. 130; 44 C.R.(4th) 319 (C.A.), refd to. [para. 26].

Counsel:

J.E. Bethell, for the appellant, Michel Brazeau;

R.C.C. Peck, Q.C., for the appellant, Auguste Lefebvre;

P. La Prairie, for the respondent.

These appeals were heard at Vancouver, British Columbia, on January 5, 1998, before Hollinrake, Goldie and Rowles, JJ.A., of the Yukon Court of Appeal.

On February 3, 1998, the following judg­ment was delivered by the court.