R. v. Letourneau (D.) and Tremblay (J.L.), (1994) 53 B.C.A.C. 81 (CA)

• Judge: McEachern, C.J.B.C., Hutcheon and Cumming, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 11, 1994
• Jurisdiction: British Columbia
• Citations: (1994), 53 B.C.A.C. 81 (CA);1994 CanLII 445 (BC CA);87 CCC (3d) 481;53 BCAC 81;22 WCB (2d) 451;87 WAC 81

R. v. Letourneau (D.) (1994), 53 B.C.A.C. 81 (CA);

    87 W.A.C. 81

MLB headnote and full text

Regina v. Daniel Letourneau and Jean Louis Tremblay

(CA015769; CA015774)

Indexed As: R. v. Letourneau (D.) and Tremblay (J.L.)

British Columbia Court of Appeal

McEachern, C.J.B.C., Hutcheon and Cumming, JJ.A.

February 11, 1994.

Summary:

The accused were convicted of first degree murder and attempted murder following a jury trial. The accused appealed, submitting that (1) the trial judge failed to adequately put the defence theory to the jury; (2) the trial judge erred in instructing the jury on the inference that could be drawn from a false alibi; (3) the trial judge erred in direct­ing the jury that they could consider the late disclosure of the accused's alibi in assessing the weight to be attached to that evidence; (4) the trial judge failed to grant a remedy under ss. 24(1) or 24(2) of the Charter for the Crown's late disclosure of relevant infor­ma­tion to the defence; (5) the trial judge erred respecting the scope of Crown ques­tioning should one of the accused testify on a voir dire; (6) the trial judge erred in failing to find a Crown witness was a state agent and in failing to exclude his evidence; (7) the trial judge erred in permitting a Crown witness to testify behind a screen; (8) the trial judge erred in allowing the Crown to reexamine a witness; (9) the trial judge erred in failing to instruct the jury that defence counsel's failure to ask a Crown witness a certain question on cross-examin­ation was a matter of weight for them to consider; and (10) the verdict was unsafe and unsupported by the evidence. The accused also sought leave to adduce fresh evidence on the appeal.

The British Columbia Court of Appeal rejected all grounds of appeal. However, the court did not dismiss the conviction appeal, where the court had yet to hear and rule on the application to adduce fresh evi­dence.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Crown made late dis­closure of evidence - The accused did not seek a stay of proceedings or an adjourn­ment - The evidence could not be excluded under s. 24(2) of the Charter, because it was not obtained in violation of any Charter right - The accused sought exclusion of the evidence under s. 24(1) as an appropriate and just remedy, because the "use" of the evidence violated his s. 7 Charter rights - The British Columbia Court of Appeal stated, without deciding, that it was not satisfied that evidence could only be excluded under s. 24(2) - Evi­dence may be excluded under s. 24(1) where it was not obtained in breach of any Charter right, but the use of the evidence may violate a Charter right - However, since the evidence would not be excluded in any event in this case, the court found it unnecessary to decide the issue - See paragraphs 157 to 163, 189 to 195.

Civil Rights - Topic 8544

Canadian Charter of Rights and Freedoms - Interpretation - Appropriate and just remedy - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 207

Common law defences - Alibi - Two accused convicted of first degree murder and attempted murder testified that they were not in the car seen at the murder scene, that they loaned it to two other people - The accused claimed that the trial judge erred in characterizing the defence position as the defence of alibi, because a true alibi is proved by the evidence of others, not solely on the evidence of the accused - The British Columbia Court of Appeal held that the trial judge did not err - The court stated that "the evidence of an accused alone is sufficient to raise an alibi defence. ... the absence of witnesses other than the accused in support of the alibi does not change the nature of the defence." - See paragraphs 50 to 63.

Criminal Law - Topic 207

Common law defences - Alibi - The accused claimed that the trial judge erred in instructing the jury on the inference that may be drawn from a false alibi - The British Columbia Court of Appeal stated that there was little difference between an inference of consciousness of guilt and an inference of guilt - Once an inference of consciousness of guilt was drawn, "the virtually inevitable result is that an infer­ence of guilt can and will properly follow" - The trial judge correctly warned the jury that an inference of guilt from a false alibi was not the only inference that could be drawn, that "people may act in a variety of ways that are inconsistent with an innocent state of mind, notwithstanding that they are innocent of any criminal wrongdoing" - The trial judge correctly instructed the jury that the Crown had to prove beyond a reasonable doubt that the alibi was false and that the inference of guilt was not the only inference they could draw - See paragraphs 69 to 82.

Criminal Law - Topic 207

Common law defences - Alibi - The British Columbia Court of Appeal stated that the defence of alibi should be dis­closed in sufficient time and with suffi­cient particularity to permit authorities to investigate - Failure to do so did not bar the defence, but may result in less weight being attached to it - The court rejected a claim that where an accused asserts his right to silence and elects not to call evi­dence, he was not obligated to disclose potential alibi evidence until he formed the intent to rely on the defence - The court stated that "an alibi is either true or not true, and, if true, constitutes a complete defence. It is unlike most defences about which an accused can remain silent until he has had an opportunity to assess the Crown's case, the disclosure of which is governed now by Stinchcombe, supra. When it comes to factual innocence, how­ever, what the Crown has or has not dis­closed, and when, must be irrelevant." - See paragraphs 164 to 188.

Criminal Law - Topic 4372

Procedure - Jury charge - Directions respecting alibi evidence or explanation by accused - [See third Criminal Law - Topic 207 ].

Criminal Law - Topic 4375.2

Procedure - Jury charge - Directions regarding prior inconsistent statements - The accused were convicted of first degree murder and attempted murder - The attempted murder victim's statement to police was radically changed at trial - The change was to describe the killers as being other than the accused - The British Col­umbia Court of Appeal stated that use of the victim's prior inconsistent statement was no longer limited to the issue of cred­ibility - It was admissible for all purposes, provided that the statement was reliable and necessary - The court stated that the prior inconsistent statement was admissible for all purposes - Further, admissibility for all purposes led to no miscarriage of jus­tice, accordingly, the court would invoke s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal in any event - See paragraphs 133 to 155.

Criminal Law - Topic 4392

Procedure - Jury charge - Directions re inferences of guilt - [See second Criminal Law - Topic 207 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 8368 ].

Criminal Law - Topic 4573

Procedure - Conduct of trial - Witness screens - A Crown witness in a murder trial was permitted to testify behind a screen (Criminal Code, s. 486(2.1)) because he feared harm - The trial judge instructed the jury to draw no adverse inference from the use of the screen and that it did not mean that the fears of the witness were well-founded - The accused claimed there was no evidential basis for using a screen, that it was not necessary "to obtain a full and candid account of the acts complained of from the complainant" - The British Columbia Court of Appeal stated that "absent any evidence that the jury was actually prejudiced against the [accused] by virtue of the use of the screen, I am of the opinion that the warn­ings of the learned trial judge were suffi­cient to dispel any potential prejudice to the [accused] in the minds of the jurors" - Further, the court stated that it would dismiss the accused's appeal on this ground under s. 686(1)(b)(iii), there being no miscarriage of justice - See paragraphs 92 to 107.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if error resulted in no prejudice, substantial wrong or miscarriage of justice - Miscarriage of justice - What constitutes - [See Criminal Law - Topic 4375.2 , Criminal Law - Topic 4573 and Evi­dence - Topic 1500 ].

Criminal Law - Topic 5313

Evidence - Witnesses - Inferences - Of consciousness of guilt - From falsehoods - [See second Criminal Law - Topic 207 ].

Criminal Law - Topic 5315

Evidence - Witnesses - Inferences of guilt - From false alibi - [See second Criminal Law - Topic 207 ].

Criminal Law - Topic 5334

Evidence - Witnesses - Confessions and voluntary statements - Voir dire - Pro­cedure - The accused allegedly made an inculpatory statement to a witness - The issues on a voir dire were whether the witness was a state agent who elicited the statement from the accused - The trial judge refused to rule in advance what questions could be asked of the accused if he chose to testify on the voir dire (i.e., questions touching upon the details of the offence) - Accordingly, the accused chose not to testify - The British Columbia Court of Appeal held that the trial judge did not err - There was no prejudice to the accused - His testimony would not have affected the trial judge's ruling on evi­dence, since his testimony was limited to denying any inculpatory statement was ever made and was not concerned with the issues on the voir dire - See paragraphs 84 to 90.

Criminal Law - Topic 5415

Evidence - Witnesses - Cross-examin­ation of - The British Columbia Court of Appeal stated that "it is, generally speak­ing, the duty of cross-examining counsel to put to the witness all significant matters which the opposing party seeks to contra­dict. ... It is accepted that failure to cross-examine in this regard is a matter of weight for the trier of fact." - See para­graphs 116 to 117.

Evidence - Topic 1500

Hearsay rule - Definition and general rule - The accused were charged with murder - The Crown called a witness (Larson) to testify that another witness reported, before the murder, one of the accused's efforts to recruit him for a contract killing - The trial judge admitted the evidence without warning the jury of its limited use (i.e., not admissible to prove truth of the statement) - The British Columbia Court of Appeal held that the trial judge was correct in admitting Larson's evidence as original evidence, admissible for a limited purpose - The trial judge should have so instructed the jury - However, the only influence the evidence would have had on the jury was respecting the chronology and motive for the other witness's statement and it was properly admissible for that - The court stated that the "curative provisions of Code s. 686(1)(b)(iii) should be applied to make it unnecessary to allow this appeal on this narrow ground" - See paragraphs 125 to 131.

Cases Noticed:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; [1992] 1 W.W.R. 97; 83 Alta. L.R.(2d) 193; 8 C.R.(4th) 277; 68 C.C.C.(3d) 1, refd to. [para. 37].

R. v. Miller, [1923] 2 W.W.R. 625; 40 C.C.C. 130; 32 B.C.R. 298 (C.A.), refd to. [para. 60].

R. v. Russell, [1936] 4 D.L.R. 744; 67 C.C.C. 28 (S.C.C.), refd to. [para. 60].

R. v. Foll (1957), 118 C.C.C. 43; 26 C.R. 68; 21 W.W.R.(N.S.) 481; 65 Man. R. 67 (C.A.), refd to. [para. 60].

R. v. Parrington (1985), 90 O.A.C. 76; 20 C.C.C.(3d) 184; 14 W.C.B. 138 (C.A.), refd to. [para. 64].

R. v. Davison (1974), 20 C.C.C.(2d) 424; 6 O.R. 103 (C.A.), refd to. [para. 70].

Mahoney v. R. (1979), 50 C.C.C.(2d) 380; 11 C.R.(3d) 64; 4 W.C.B. 1 (Ont. C.A.), refd to. [para. 70].

Khan and Khan v. R., [1967] 1 All E.R. 80 (P.C.), refd to. [para. 73].

R. v. Jones, [1971] 2 O.R. 549; 3 C.C.C.(2d) 153 (C.A.), refd to. [para. 74].

R. v. MacDonald (J.J.) (1989), 90 N.S.R.(2d) 218; 230 A.P.R. 218; 48 C.C.C.(3d) 230; 7 W.C.B.(2d) 152 (C.A.), refd to. [para. 74].

R. v. Erven, [1979] 1 S.C.R. 926; 25 N.R. 49; 30 N.S.R.(2d) 89; 49 A.P.R. 89; 44 C.C.C.(2d) 76; 92 D.L.R.(3d) 507, refd to. [para. 86].

R. v. Pais, [1941] 2 D.L.R. 748; [1941] 3 W.W.R. 278; 75 C.C.C. 318; 56 B.C.R. 232 (C.A.), refd to. [para. 87].

R. v. Levogiannis (1990), 43 O.A.C. 161; 62 C.C.C.(3d) 59; 2 C.R.(4th) 355; 1 O.R.(3d) 351; 11 W.C.B.(2d) 556 (C.A.), refd to. [para. 100].

R. v. P.M. (1990), 42 O.A.C. 153; 1 O.R.(3d) 341; 11 W.C.B.(2d) 593 (C.A.), refd to. [para. 100].

R. v. Levogiannis, [1993] 4 S.C.R. 475; 160 N.R. 371; 67 O.A.C. 321; 85 C.C.C.(3d) 327; 25 C.R.(4th) 325, refd to. [para. 105].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 116].

R. v. Dyck, [1970] 2 C.C.C. 283; 8 C.R.N.S. 191; 70 W.W.R.(N.S.) 449 (B.C.C.A.), refd to. [para. 116].

R. v. MacKinnon (M.) (1992), 12 B.C.A.C. 302; 23 W.A.C. 302; 72 C.C.C.(3d) 113; 16 W.C.B.(2d) 86 (C.A.), refd to. [para. 116].

Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965 (P.C.), refd to. [para. 127].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257; 19 C.R.(4th) 1, refd to. [para. 136].

R. v. Swanston, [1982] 2 W.W.R. 546; 65 C.C.C.(2d) 453; 25 C.R.(3d) 385; 33 B.C.L.R. 391 (C.A.), refd to. [para. 140].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 141].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257; 94 D.L.R.(4th) 590; 15 C.R.(4th) 133, refd to. [para. 141].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153; 45 C.R.(3d) 97; 18 C.C.C.(3d) 481, refd to. [para. 158].

R. v. Shortreed (1990), 37 O.A.C. 144; 54 C.C.C.(3d) 292; 75 C.R.(3d) 306; 9 W.C.B.(2d) 734 (C.A.), refd to. [para. 162].

R. v. Dunbar (1982), 68 C.C.C.(2d) 13; 138 D.L.R.(3d) 221; 28 C.R.(3d) 324 (Ont. C.A.), refd to. [para. 164].

R. v. Ford (R.L.) (1993), 23 B.C.A.C. 50; 39 W.A.C. 50; 78 C.C.C.(3d) 481; 18 W.C.B.(2d) 439 (C.A.), refd to. [para. 164].

R. v. Flynn (1957), 42 Cr. App. Rep. 15 (C.C.A.), refd to. [para. 167].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; [1990] 5 W.W.R. 1; 57 C.C.C.(3d) 1; 77 C.R.(3d) 145; 49 C.R.R. 114; 47 B.C.L.R.(2d) 1, refd to. [para. 172].

R. v. Spyker (1990), 63 C.C.C.(3d) 125; 29 M.V.R.(2d) 41; 12 W.C.B.(2d) 391 (B.C.S.C.), refd to. [para. 193].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 35]; sect. 10(b) [para. 157]; sect. 11(d) [paras. 48, 92, 100]; sect. 24(1) [para. 35]; sect. 24(2) [para. 48].

Criminal Code, R.S.C. 1985, c. C-46, sect. 482(2.1) [paras. 100, 103]; sect. 486 [para. 96]; sect. 686(1)(a)(i) [para. 119]; sect. 686(1)(b)(iii) [para. 107]; sect. 686(2)(a) [para. 119].

Authors and Works Noticed:

Ferguson, Gerry A., and Bouck, John C., Canadian Criminal Jury Instructions (2nd Ed. 1989), para. 8.04(4) [para. 72].

McWilliams, Peter K., Canadian Criminal Evidence (3rd Ed. 1992), para. 37:10300 [para. 116].

Wigmore on Evidence (Chadbourn Rev. 1979), vol. 2, § 267 [para. 76]; 273 [para. 77].

Wigmore on Evidence (Tillers Rev. 1983), vol. 1A, § 136 [para. 60]; 173 [para. 76].

Counsel:

R.T. Israels, Q.C., and M. Taylor, for the accused/appellants;

R.C.C. Peck, Q.C., and M. Tammen, for the Crown/respondent.

This appeal was heard before McEachern, C.J.B.C., Hutcheon and Cumming, JJ.A., of the British Columbia Court of Appeal.

On February 11, 1994, Cumming, J.A., delivered the following judgment for the Court of Appeal.