R. v. Maciel (R.), (2007) 222 O.A.C. 174 (CA)

• Judge: Doherty, Laskin and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 22, 2007
• Jurisdiction: Ontario
• Citations: (2007), 222 O.A.C. 174 (CA);2007 ONCA 196;219 CCC (3d) 516;47 CR (6th) 319;[2007] OJ No 1034 (QL);222 OAC 174;73 WCB (2d) 235

R. v. Maciel (R.) (2007), 222 O.A.C. 174 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. MR.068

Her Majesty the Queen (respondent) v. Richard Maciel (appellant)

(C37342)

Indexed As: R. v. Maciel (R.)

Ontario Court of Appeal

Doherty, Laskin and Armstrong, JJ.A.

March 22, 2007.

Summary:

The accused was convicted of first degree murder. He appealed his conviction on a number of grounds.

The Ontario Court of Appeal held that the trial judge made a reversible error by failing to review the evidence and relate it to the respective positions on the issue of planning and deliberation. That error however could not have affected the jury's determination that the accused murdered the victim. The court stated that while a conviction for first degree murder was available on the evidence, the Crown did not seek a new trial on that charge if the court was prepared to substitute a conviction on a charge of second degree murder. The court therefore dismissed the appeal, set aside the first degree murder conviction and substituted a conviction on the included offence of second degree murder.

Criminal Law - Topic 1270

Murder - First degree murder - Meaning of "planned" and "deliberate" - The accused was convicted of first degree murder - He appealed his conviction, arguing that a person could be convicted of first degree murder that was planned and deliberate only if he or she was actually involved in the planning and deliberation - He submitted that the trial judge erred in telling the jury that it could convict the accused of first degree murder as long as he knew that the person he was aiding, presumably his father, had planned and deliberated the murder - The Ontario Court of Appeal reviewed the trial judge's instruction on potential liability as an aider to first degree murder, holding that it was consistent with the case law and s. 21(1) of the Criminal Code - Although the trial judge correctly defined "planning" and "deliberation" and correctly instructed the jury on the essential components of liability for first degree murder either as a perpetrator or an aider, he failed to relate the evidence to the issue of whether the murder was planned and deliberate - He did not direct the jury's attention to the parts of the evidence that, should the jury conclude that the accused was guilty of murder, could assist the jury in determining whether he was guilty of first or second degree murder - See paragraphs 78 to 89.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - [See Criminal Law - Topic 1270 ].

Criminal Law - Topic 4356

Procedure - Charge or directions - Jury or judge alone - Directions regarding intent or mens rea - The accused was convicted of first degree murder, arising out of a shooting at a pool hall - He appealed his conviction, arguing that the trial judge misdirected the jury as to the use of evidence concerning the victim's intention before entering the pool hall - The victim's mother, who was in a car outside the pool hall waiting for the victim, testified that the victim told her that he was going into the pool hall to meet the accused and his father - The accused argued that the trial judge had to specifically tell the jury that the evidence of the victim's intention to meet the accused in the pool hall could not be used as evidence of the accused's intention to meet the victim in the pool hall or as evidence that the accused went to a meeting at the pool hall with the victim - The Ontario Court of Appeal reviewed the judge's charge on this issue holding that the instructions were appropriate and did not constitute reversible error - See paragraphs 62 to 77.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The accused was convicted of first degree murder - He appealed his conviction, seeking to introduce fresh evidence on appeal to explain inculpatory statements made during intercepted communications - The accused chose not to tell his trial lawyer about the explanation for the intercepts for tactical reasons - The Ontario Court of Appeal discussed when new evidence would be heard on appeal, especially in a situation where a tactical decision had been made not to present the evidence at trial despite its availability - The court refused to admit the new evidence in this case stating that the evidence was not sufficiently cogent to justify ignoring the considered tactical decision made at trial by the accused - It did not raise sufficient concerns as to the reliability of the verdict to warrant the damage that would be done to the integrity of the criminal justice process by allowing the accused to secure a new trial by adducing evidence on appeal that he deliberately chose not to adduce at trial, and that should the court order a new trial might never see the light of day at that trial - See paragraphs 15 to 55.

Evidence - Topic 1667

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of physical sensation and mental condition - Statements of intent or motive or reason - [See Criminal Law - Topic 4356 ].

Cases Noticed:

R. v. Palmer (1979), 30 N.R. 181; 50 C.C.C.(2d) 193 (S.C.C.), refd to. [para. 36].

R. v. Price (S.L.), [1993] 3 S.C.R. 633; 157 N.R. 378; 145 A.R. 231; 55 W.A.C. 231, affing. (1992), 131 A.R. 54; 25 W.A.C. 54 (C.A.), refd to. [para. 36].

R. v. Warsing (K.L.) (1998), 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214; 130 C.C.C.(3d) 259 (S.C.C.), affing. (1997), 97 B.C.A.C. 137; 157 W.A.C. 137; 119 C.C.C.(3d) 385 (C.A.), refd to. [para. 36].

R. v. Lévesque (R.) (2000), 260 N.R. 165; 148 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 36].

R. v. Gorecki (No. 2) (1976), 32 C.C.C.(2d) 135 (Ont. C.A.), refd to. [para. 39].

R. v. Buxbaum (1989), 33 O.A.C. 1 (C.A.), refd to. [para. 40].

R. v. Canhoto (M.) (1999), 127 O.A.C. 147; 140 C.C.C.(3d) 321 (C.A.), refd to. [para. 40].

R. v. Smith (J.) (2001), 154 O.A.C. 51; 161 C.C.C.(3d) 1 (C.A.), refd to. [para. 40].

R. v. Perlett (J.D.) (2006), 214 O.A.C. 264; 212 C.C.C.(3d) 11 (C.A.), refd to. [para. 40].

Reference Re Gruenke - see Reference Re Breese (A.R.).

Reference Re Breese (A.R.) (1998), 131 Man.R.(2d) 161; 187 W.A.C. 161; 131 C.C.C.(3d) 72 (C.A.), affd. (2000), 255 N.R. 202; 148 Man.R.(2d) 315; 224 W.A.C. 315; 146 C.C.C.(3d) 319 (S.C.C.), refd to. [para. 40].

R. v. Huenemann (D.C.) (1993), 38 B.C.A.C. 20; 62 W.A.C. 20 (C.A.), refd to. [para. 40].

R. v. I.E.M. (2003), 169 O.A.C. 240; 173 C.C.C.(3d) 515 (C.A.), refd to. [para. 41].

McMartin v. R., [1965] 1 C.C.C. 142 (S.C.C.), refd to. [para. 41].

R. v. 1275729 Ontario Inc. et al. (2005), 205 O.A.C. 359 (C.A.), refd to. [para. 43].

R. v. Stolar - see R. v. Nielsen and Stolar.

R. v. Nielsen and Stolar (1988), 82 N.R. 280; 52 Man.R.(2d) 46; 40 C.C.C.(3d) 1, refd to. [para. 46].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291, refd to. [para. 48].

R. v. Starr (R.D.) (2000), 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 66].

R. v. Brown (D.M.) (1995), 145 N.S.R.(2d) 387; 418 A.P.R. 387; 102 C.C.C.(3d) 422 (C.A.), refd to. [para. 80].

R. v. Hertrich, Stewart and Skinner (1982), 67 C.C.C.(2d) 510 (Ont. C.A.), refd to. [para. 80].

R. v. Martineau (1990), 112 N.R. 83; 109 A.R. 321; 58 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 81].

R. v. Jackson and Davy (1993), 162 N.R. 113; 68 O.A.C. 161; 86 C.C.C.(3d) 385 (S.C.C.), affing. (1991), 51 O.A.C. 92; 68 C.C.C.(3d) 385 (C.A.), refd to. [para. 82].

R. v. Thatcher (1987), 75 N.R. 198; 57 Sask.R. 113; 32 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 85].

R. v. Hibbert (L.) (1995), 184 N.R. 165; 84 O.A.C. 161; 99 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 87].

R. v. Dunlop and Sylvester (1979), 27 N.R. 153; 47 C.C.C.(2d) 93 (S.C.C.), refd to. [para. 88].

R. v. Yanover and Gerol (No. 1) (1985), 9 O.A.C. 93; 20 C.C.C.(3d) 300 (C.A.), refd to. [para. 88].

R. v. Adams and Waltz (1989), 33 O.A.C. 148; 49 C.C.C.(3d) 100 (C.A.), refd to. [para. 88].

R. v. Kirkness (1990), 116 N.R. 81; 69 Man.R.(2d) 81; 60 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 88].

R. v. Wigman (1987), 75 N.R. 51; 33 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 99].

R. v. Ruggiero (1972), 9 C.C.C.(2d) 546 (Ont. C.A.), refd to. [para. 99].

Authors and Works Noticed:

Ashworth, Andrew, Principles of Criminal Law (5th Ed. 2006), pp. 88, 89, 90 [para. 80].

Hill, S. Casey, in McWilliams, Peter K., Canadian Criminal Evidence (4th Ed. 2003) (2006 Looseleaf Update), para. 4:20 [para. 74].

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed. 2003) (2006 Looseleaf Update), para. 4:20 [para. 74].

Rose, V. Gordon, Parties to an Offence (1982), p. 11 [para. 88].

Steusser, Lee, R. v. Starr and Reform of the Hearsay Exceptions (2002), 7 Can. Cr. L. Rev. 55, pp. 63, 64 [para. 74].

Stuart, Don, Charter Justice in Canadian Criminal Law (4th Ed. 2005), pp. 79, 80, 81 [para. 81].

Williams, Glanville, Convictions and Fair Labelling (1983), 42 Cambridge L.J. 85, generally [para. 80].

Counsel:

Philip Campbell, for the appellant;

Jennifer Woollcombe, for the respondent.

This appeal was heard on December 5-6, 2006, by Doherty, Laskin and Armstrong, JJ.A., of the Ontario Court of Appeal. The following decision of the court was delivered by Doherty, J.A., on March 22, 2007.