R. v. McClenaghan (M.A.),

• Judge: C,Gill,O'Brien
• Neutral Citation: 2010 ABCA 222
• Citation: (2010), 482 A.R. 343 (CA),2010 ABCA 222,482 AR 343,(2010), 482 AR 343 (CA),482 A.R. 343
• Date: 18 June 2010
• Court: Court of Appeal (Alberta)

R. v. McClenaghan (M.A.) (2010), 482 A.R. 343 (CA);

      490 W.A.C. 343

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JL.055

Her Majesty the Queen (respondent) v. Murray Archibald McClenaghan (appellant)

(0903-0130-A; 2010 ABCA 222)

Indexed As: R. v. McClenaghan (M.A.)

Alberta Court of Appeal

Côté and O'Brien, JJ.A., and Gill, J.(ad hoc)

July 9, 2010.

Summary:

The accused shot his friend and business partner three times. The accused was charged with first degree murder and possession of a weapon (pump action shotgun) for a purpose dangerous to the public peace. The accused was found not guilty of first or second degree murder. For the offences of manslaughter and possession of a weapon, the jury found the accused guilty, but not criminally responsible on account of mental disorder. The Crown appealed.

The Alberta Court of Appeal, in a decision reported at 437 A.R. 247; 433 W.A.C. 247, allowed the appeal and ordered a new trial. A jury convicted him of second degree murder. The accused appealed.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 4356

Procedure - Charge or directions - Jury or judge alone - Directions regarding intent or mens rea - A jury convicted the accused of second degree murder - The accused appealed - The trial judge appeared to have intended to follow R. v. D.W. (S.C.C.) in framing the relevant part of the jury charge about intent - The accused argued that the charge either omitted one step from the usual three steps recommended in that decision, or combined the factual part of step two with the result (instruction) for step three - The Alberta Court of Appeal rejected this ground of appeal - One could not apply the rules from R. v. D.W. mechanically to all criminal trials - The error in part of the D.W. charge was harmless in this case for two reasons - First, despite the omitted words, the truncated proposition which it gave was correct in this case - Second, no D.W. charge was needed in this case - A D.W. charge was only needed in a case where credibility was important - There was no issue about the accused's credibility, and his evidence, if believed, was quite consistent with guilt - Alternative, the curative proviso in s. 686 of the Criminal Code applied - The Crown's case was overwhelming and a conviction was inevitable - The result would have been the same without the alleged flawed in the jury charge - See paragraphs 19 to 38.

Criminal Law - Topic 4365

Procedure - Charge or directions - Jury or judge alone - Directions regarding expert evidence - A jury convicted the accused of second degree murder - The principal defence was that the accused was not criminally responsible - The accused appealed, arguing that the trial judge was not fair in his summary of the evidence and unduly emphasized the evidence of the Crown psychiatrist while glossing over the opinions of the defence experts - The accused pointed to the amount of time spent by the trial judge reviewing the evidence of the experts, noting that only approximately 87 lines of the charge were dedicated to the evidence of the two defence experts while 143 lines were devoted to the two Crown experts - The accused also argued that the trial judge's review of the expert evidence gave inappropriate qualitative prominence to the Crown psychiatrist - The Alberta Court of Appeal rejected the argument - The trial judge's review of the expert evidence was fair and balanced - He provided an appropriate review of all the evidence, including that of the expert witnesses, and directed the jury how the law was to be applied to the facts as they found them - See paragraphs 62 to 76.

Criminal Law - Topic 4382

Procedure - Charge or directions - Jury or judge alone - Misdirection - What constitutes - The accused shot his friend and business partner three times - A jury convicted the accused of second degree murder - Fossen, a social worker, interviewed the accused about his memories of the shooting - Fossen testified that the accused told her during the interview that he remembered reaching for his gun and thinking that he wanted to commit suicide, then everything went blank - On cross-examination, the accused testified that he did not recall reaching for the gun or why he did so, and that he never said anything to the contrary - He denied making the statement alleged by Fossen - The accused appealed, arguing that the failure of the trial judge to give direction on the statement amounted to a misdirection - He argued that the jury should have been told that, before they could use the statement, they first had to determine whether the accused actually made the statement - The Alberta Court of Appeal rejected the argument - No specific direction was required - The jury's responsibility to assess all the evidence and decide the facts was clearly communicated to them - There was no reason to assume that the jury would not have understood that these general directions applied to the evidence of all witnesses, including Fossen - This was also something the jury would have understood based on their own common sense - Had the trial judge singled out the statement made to Fossen for comment, there was a risk the jury would have attached undue importance to it - Therefore, the trial judge may not have wanted the jury's attention drawn to this remark, and chose to give inclusive instructions rather than an instruction dealing specifically with the statement - Further, defence counsel made no objection to the manner in which the statement to Fossen was dealt with by the trial judge in his charge - See paragraphs 39 to 52.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where directions or jury charge incomplete or in error - [See second Criminal Law - Topic 4356 ].

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 second Criminal Law - Topic 4356 ].

Criminal Law - Topic 5319.1

Evidence and witnesses - Inferences - From refusal to submit to psychiatric or medical examination - A jury convicted the accused of second degree murder - One defence raised was not criminally responsible - On appeal, the accused argued that the trial judge erred in his instruction to the jury concerning a possible adverse inference it might draw from the accused's refusal to submit to examination by a Crown psychiatrist three days before trial - In addition to the timing of the Crown's request, the accused argued that there were circumstances which supported a conclusion that this was not a proper situation for an adverse inference instruction - There was a lack of evidence as to the value of the examination given the length of time that had elapsed since the murder - The fact that the accused had been involved in rehabilitative therapy for 23 months and in custody in a non-therapeutic setting for another 15 months - The fact that the accused had previously submitted to a lengthy examination by other Crown psychiatrists - Alternatively, the accused argued that the charge should have included mention of all these circumstances surrounding the refusal - The Alberta Court of Appeal rejected the argument - There was nothing unusual or significant in the circumstances that would have justified the trial judge either not giving, or varying the adverse inference direction - The direction given was appropriate - There was no error - See paragraphs 53 to 61.

Cases Noticed:

R. v. W.D. - see R. v. D.W.

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 3 C.R.(4th) 302, refd to. [para. 20].

R. v. J.H.S., [2008] 2 S.C.R. 152; 375 N.R. 67; 265 N.S.R.(2d) 203; 848 A.P.R. 203; 2008 SCC 30, refd to. [para. 25].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 25].

R. v. Illes (M.), [2008] 3 S.C.R. 134; 380 N.R. 238; 260 B.C.A.C. 285; 439 W.A.C. 285, refd to. [para. 36].

R. v. Jaw (S.G.), [2009] 3 S.C.R. 26; 393 N.R. 246; 464 A.R. 149; 467 W.A.C. 149, refd to. [para. 36].

R. v. K.M.E., [2009] 2 S.C.R. 19; 389 N.R. 20; 272 B.C.A.C. 1; 459 W.A.C. 1; 2009 SCC 27, refd to. [para. 51].

R. v. Sweeney (No. 2) (1977), 76 D.L.R.(3d) 211; 16 O.R.(2d) 814; 35 C.C.C.(3d) 245 (C.A.), refd to. [para. 57].

R. v. Azoulay, [1952] 2 S.C.R. 495, refd to. [para. 65].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161; 113 C.C.C.(3d) 1, refd to. [para. 66].

R. v. M.A.M. - see R. v. Malott (M.A.).

R. v. Malott (M.A.), [1998] 1 S.C.R. 123; 222 N.R. 4; 106 O.A.C. 132, refd to. [para. 68].

R. v. Karaibrahimovic (J.J.) (2002), 303 A.R. 181; 273 W.A.C. 181; 164 C.C.C.(3d) 431; 2002 ABCA 102, refd to. [para. 70].

Counsel:

D.C. Marriott, Q.C., for the respondent;

C.B. Davison, for the appellant.

This appeal was heard on April 27 and June 18, 2010, by Côté and O'Brien, JJ.A., and Gill, J.(ad hoc), of the Alberta Court of Appeal. Côté, J.A., and Gill, J.(ad hoc), filed the following reasons for judgment of the court in Edmonton, Alberta, on July 9, 2010.