R. v. Marshall (D.), (2005) 201 O.A.C. 154 (CA)

• Judge: Rosenberg, Goudge and Borins, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 26, 2005
• Jurisdiction: Ontario
• Citations: (2005), 201 O.A.C. 154 (CA);2005 CanLII 30051 (ON CA);77 OR (3d) 81;200 CCC (3d) 179;[2005] OJ No 3549 (QL);201 OAC 154;66 WCB (2d) 602

R. v. Marshall (D.) (2005), 201 O.A.C. 154 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. SE.001

Her Majesty The Queen (respondent) v. David Marshall (appellant)

(C33980)

Indexed As: R. v. Marshall (D.)

Ontario Court of Appeal

Rosenberg, Goudge and Borins, JJ.A.

August 26, 2005.

Summary:

The accused was convicted of first degree murder and sentenced to life imprisonment without eligibility for parole for 25 years. The accused appealed against conviction, raising nine grounds of appeal.

The Ontario Court of Appeal dismissed the appeal, accepting only one ground of appeal (i.e., trial judge erred in instructing the jury that accused had requested alternative verdicts be placed before the jury). However, the court invoked s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal where the verdict would necessarily have been the same notwithstanding the error.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - The Ontario Court of Appeal held that a trial judge did not err in failing to order the disclosure of the names of two police informants - The trial judge correctly found that the "innocence at stake" qualification to informer privilege did not apply - The accused failed to meet the threshold requirement that disclosure was the only way to raise a reasonable doubt as to the accused's guilt - See paragraphs 101 to 104.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - An accused defended a charge of first degree murder solely on the basis that he did not kill the victim - The trial judge advised that he would instruct the jury on the alternative defences of second degree murder and manslaughter - The accused did not object - However, the accused argued that the trial judge erred in instructing the jury that the accused had requested that the alternative defences be left with them - The Ontario Court of Appeal held that although the trial judge had a duty to place before the jury all defences having an air of reality, it was an error for him to tell the jury that the accused had requested the alternative verdicts - However, where the trial judge repeatedly stated the accused's position that he did not commit the murder, the curative provisions of s. 686(1)(b)(iii) of the Criminal Code applied to dismiss the appeal notwithstanding the error, because the verdict would necessarily have been the same - See paragraphs 110 to 118.

Criminal Law - Topic 4360

Procedure - Charge or directions - Jury or judge alone - Directions regarding inferences from silence or admissions by silence or acquiescence - [See Criminal Law - Topic 5440 ].

Criminal Law - Topic 4389

Procedure - Charge or directions - Jury or judge alone - Objections to jury charge - The accused was convicted of murdering his former drug trafficking partner in the accused's girlfriend's jeep - In 37 interviews with police, the accused consistently claimed that he and the victim drove together from Montreal to Toronto in the jeep, that they became separated and the accused had no knowledge of what happened to the victim - For the first time at trial, the accused claimed that he and the victim drove to Toronto in separate vehicles - This version was contrary to testimony of Crown witnesses, who were not cross-examined by the accused's counsel on this version of the events - Accordingly, the Crown witnesses were not given an opportunity to address the accused's contradictory evidence - Neither the Crown nor the accused accepted the trial judge's offer to have those witnesses recalled - Instead, the Crown was permitted to cross-examine the accused on counsel's failure to cross-examine the Crown witnesses, for the purpose of submitting that the accused had fabricated this version - Further, the trial judge gave a Browne v. Dunn instruction to the jury - The instruction was twice read to counsel for approval and the accused's counsel did not object to the instruction when it was given to the jury - The Ontario Court of Appeal held that the trial judge did not err in permitting the Crown to cross-examine the accused - The jury charge was not in error and, in any event, the charge was approved by the accused - The jury was entitled to consider the failure to cross-examine the Crown witnesses in determining whether the accused's version of the events was fabricated - See paragraphs 51 to 68.

Criminal Law - Topic 4394

Procedure - Charge or directions - Jury or judge alone - Directions re inferences from failure to call evidence - [See Criminal Law - Topic 5320 ].

Criminal Law - Topic 4961

Appeals - Indictable offences - New trials - Grounds - Abusive or improper cross-examination by Crown - The accused was convicted of murdering his former drug trafficking partner in the accused's girlfriend's jeep - In 37 interviews with police, the accused consistently claimed that he and the victim drove together from Montreal to Toronto in the jeep, that they became separated and the accused had no knowledge of what happened to the victim - For the first time at trial, the accused claimed that he and the victim drove to Toronto in separate vehicles - The Ontario Court of Appeal stated that the general rule was that the Crown could not cross-examine an accused on his use of disclosure because an accused's constitutional right to this disclosure could not be used to "trap" the accused - The Crown cross-examined the accused on cell phone records disclosed by the Crown, which the accused used to support his version - The Crown sought to show the accused's version was fabricated to conform with disclosure - The court held that it was proper for the Crown to cross-examine the accused on the use that he made of the disclosed phone records - Further, the jury was appropriately instructed not to draw an inappropriate adverse inference - See paragraphs 69 to 76.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 4357 ].

Criminal Law - Topic 5320

Evidence and witnesses - Inferences - From failure to call witness - The accused was convicted of first degree murder in the stabbing death of his former drug trafficking partner in the accused's girlfriend's jeep - In 37 interviews with police, the accused consistently claimed that he and the victim drove together from Montreal to Toronto in the jeep, that they became separated and the accused had no knowledge of what happened to the victim - For the first time at trial, the accused claimed that the victim drove to Toronto in the jeep and that the accused drove later in his girlfriend's car after attending a birthday party - Witnesses (birthday attendees and girlfriend), who could have supported this new version of what happened, were not called to testify to corroborate the accused's testimony - The Ontario Court of Appeal stated that "the [accused's] unexplained failure to call them certainly permits if not compels the inference that their evidence would not have supported his testimony. ... The trial judge should have made it clear that there was no obligation on the [accused] to call a particular witness and that there may have been valid reasons for not doing so. But given the way the trial developed, where it no doubt became obvious to every person involved in the trial that a major issue was whether the [accused] had recently fabricated his evidence, I do not think that this omission prejudiced the [accused]." - See paragraphs 41 to 50.

Criminal Law - Topic 5336.1

Evidence and witnesses - Confessions and voluntary statements - Recording or videotaping interrogation - The accused submitted that the trial judge erred in finding that statements given to police on five separate occasions (out of 47 total statements) were voluntary notwithstanding the failure to video-tape or audio-tape every minute of the conversations - The Ontario Court of Appeal held that the trial judge did not err in finding the statements voluntary - The trial judge recognized that he could exclude a statement for incompleteness if he was unable to determine that the statement was voluntary - The failure to record an interrogation did not render the statements inherently suspect - A non-recorded interrogation became suspect when the suspect was in custody, recording facilities were readily available and the police deliberately interrogated the accused without giving thought to a reliable record - None of those circumstances existed in this case - See paragraphs 93 to 100.

Criminal Law - Topic 5435

Evidence and witnesses - Cross-examination of accused - Credibility - [See Criminal Law - Topic 4389 ].

Criminal Law - Topic 5437

Evidence and witnesses - Cross-examination of accused - Prior charges, convictions, etc. - An accused charged with first degree murder had 47 prior convictions from 1981 to 1993 - The accused brought a Corbett application, seeking to either preclude the Crown from cross-examining him on his criminal record or to have his record edited to remove stale-dated convictions - The trial judge exercised his discretion by permitting the accused to be cross-examined on his full record as probative of his credibility - The Ontario Court of Appeal held that the trial judge did not err - The court noted that the trial judge properly instructed the jury that the accused's criminal record could not be used as evidence that he committed the crime or that he had a propensity to commit crime - See paragraphs 87 to 92.

Criminal Law - Topic 5440

Evidence and witnesses - Cross-examination of accused - Re failure to offer explanation to police - The accused was convicted of murdering his former drug trafficking partner in the accused's girlfriend's jeep - In 37 interviews with police, the accused consistently claimed that he and the victim drove together from Montreal to Toronto in the jeep, that they became separated and the accused had no knowledge of what happened to the victim - For the first time at trial, the accused claimed that he and the victim drove to Toronto in separate vehicles - The Crown, in cross-examining the accused on why he did not disclose this version to police and in its closing address, repeatedly noted the accused's right to silence, but questioned why the accused would talk to the police 37 times without mentioning this version of events, unless he had fabricated this version after the fact - The Ontario Court of Appeal stated that "it was improper for the Crown to suggest in cross-examination that the [accused's] failure to disclose these details to the police indicated that he had fabricated them. However, given that in his many meetings and conversations with the police the [accused] had assumed the posture of an innocent man eager to help the police find the person responsible for [the victim's] murder, the remainder of the Crown's cross-examination was a proper examination of the relevant discrepancies between the [accused's] statements to police and his examination-in-chief." - Further, the trial judge properly instructed the jury not to draw an adverse inference from the accused's exercise of his right to silence - See paragraphs 77 to 86.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity or location of police informants - [See Civil Rights - Topic 3133 ].

Evidence - Topic 4726

Witnesses - Examination - Impeaching credibility - Duty to give witness opportunity to explain - [See Criminal Law - Topic 4389 ].

Cases Noticed:

R. v. Koffman and Hirschler (1985), 10 O.A.C. 29; 20 C.C.C.(3d) 232 (C.A.), refd to. [para. 47].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 53].

R. v. Henderson (R.R.) (1999), 120 O.A.C. 99; 134 C.C.C.(3d) 131 (C.A.), refd to. [para. 53].

R. v. McNeill (S.) (2000), 131 O.A.C. 346; 144 C.C.C.(3d) 551 (C.A.), refd to. [para. 55].

R. v. Paris (G.W.) et al. (2000), 138 O.A.C. 287; 150 C.C.C.(3d) 162 (C.A.), leave to appeal dismissed (2001), 276 N.R. 395; 152 O.A.C. 199 (S.C.C.), refd to. [para. 62].

R. v. White (I.) (1999), 117 O.A.C. 246; 132 C.C.C.(3d) 373 (C.A.), refd to. [para. 71].

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.), and leave to appeal dismissed (1999), 254 N.R. 396; 134 O.A.C. 398 (S.C.C.), refd to. [para. 71].

R. v. Poirier (J.) (2000), 133 O.A.C. 352; 146 C.C.C.(3d) 436 (C.A.), dist. [para. 81].

R. v. Lomage (1991), 44 O.A.C. 131; 2 O.R.(3d) 621 (C.A.), refd to. [para. 81].

R. v. Corbett (1988), 85 N.R. 81; 41 C.C.C.(3d) 385 (S.C.C.), refd to. [para. 87].

R. v. Moore-McFarlane (G.C.) et al. (2001), 152 O.A.C. 120; 160 C.C.C.(3d) 493 (C.A.), refd to. [para. 95].

R. v. Oickle (R.F.) (2000), 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 147 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 96].

R. v. Scott (1990), 116 N.R. 361; 43 O.A.C. 277; 61 C.C.C.(3d) 300 (S.C.C.), refd to. [para. 101].

R. v. Leipert (R.D.) (1997), 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162; 112 C.C.C.(3d) 385 (S.C.C.), refd to. [para. 101].

R. v. McClure (D.E.) (2001), 266 N.R. 275; 142 O.A.C. 201; 151 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 102].

R. v. Brown (J.D.) (2002), 285 N.R. 201; 157 O.A.C. 1; 162 C.C.C.(3d) 257 (S.C.C.), refd to. [para. 102].

R. v. Diu (A.B.) et al. (2000), 133 O.A.C. 201; 144 C.C.C.(3d) 481 (C.A.), leave to appeal abandoned [2000] S.C.C.A. No. 406, refd to. [para. 113].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226 (C.A.), refd to. [para. 115].

R. v. Tombran (T.) (2000), 129 O.A.C. 51; 142 C.C.C.(3d) 380 (C.A.), leave to appeal dismissed (2000), 265 N.R. 395; 143 O.A.C. 398 (S.C.C.), refd to. [para. 115].

Counsel:

James Lockyer and Brian Snell, for the appellant;

Sandra Kingston and Eric Siebenmorgen, for the respondent.

This appeal was heard on October 18-19, 2004, before Rosenberg, Goudge and Borins, JJ.A., of the Ontario Court of Appeal.

On August 26, 2005, Borins, J.A., delivered the following judgment for the Court of Appeal.