R. v. Melanson (S.A.), 2007 NBCA 94

JudgeDrapeau, C.J.N.B., Turnbull and Richard, JJ.A.
CourtCourt of Appeal (New Brunswick)
Case DateApril 24, 2007
JurisdictionNew Brunswick
Citations2007 NBCA 94;(2007), 325 N.B.R.(2d) 203 (CA)

R. v. Melanson (S.A.) (2007), 325 N.B.R.(2d) 203 (CA);

    325 R.N.-B.(2e) 203; 836 A.P.R. 203

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2008] N.B.R.(2d) TBEd. JA.008

Renvoi temp.: [2008] N.B.R.(2d) TBEd. JA.008

Stephen Allan Melanson (appellant) v. Her Majesty the Queen (respondent)

(97/06/CA; 2007 NBCA 94)

Indexed As: R. v. Melanson (S.A.)

Répertorié: R. v. Melanson (S.A.)

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Turnbull and Richard, JJ.A.

December 20, 2007.

Summary:

Résumé:

Melanson and Williams were charged with second degree murder. A jury found Melanson guilty of second degree murder and Williams guilty of manslaughter.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 265 N.B.R.(2d) 284; 695 A.P.R. 284, sentenced Melanson to life imprisonment with a 17 year period of parole ineligibility. The court, after giving credit for 14 months of remand, sentenced Williams to eight years and 10 months' imprisonment. Melanson appealed the conviction.

The New Brunswick Court of Appeal dismissed the appeal.

Barristers and Solicitors - Topic 1802

The prosecutor - Role of - The New Brunswick Court of Appeal derived the following principles from the caselaw respecting improper remarks by Crown counsel in the closing address: "1. The role of Crown counsel excludes any notion of winning or losing; his or her conduct before the Court must always be characterized by moderation and impartiality; 2. It is improper for Crown counsel to appeal to passion, use inflammatory language, express his or her own opinion, or mislead the jury on what the evidence discloses; 3. The trial judge has a duty to intervene in the event of Crown counsel's misconduct and a failure to do so constitutes an incorrect decision on a question of law under s. 686(1)(a)(ii) of the Criminal Code; 4. The nature of the trial judge's intervention in the face of Crown counsel's improper conduct will depend on the circumstances of each case, but it will generally be necessary for the judge to be forceful and give precise examples of what constitutes the misconduct instead of just making a general call for the jury to be dispassionate. The judge's obligation is to restore a proper balance of fairness, by repairing any damage that was caused to the jury's decision-making process by Crown counsel's improper conduct; and, 5. Not all failures of the trial judge to intervene will result in a new trial. The Court of Appeal will need to determine whether, in light of the evidence presented at trial and the entire charge to the jury, a miscarriage of justice resulted from the judge's failure to intervene." - See paragraph 75.

Barristers and Solicitors - Topic 1803

The prosecutor - Duties of - [See Barristers and Solicitors - Topic 1802 ].

Criminal Law - Topic 4302.2

Procedure - Trial judge - Duties and functions of - Respecting conduct of Crown - [See Barristers and Solicitors - Topic 1802 ].

Criminal Law - Topic 4345

Procedure - Jury - Evidence - Jury request to review evidence or argument - At the accused's murder trial, approximately two hours after being charged, the jury returned asking if they could watch the co-accused's videotaped statement and hear the audiotapes of the testimony of three witnesses - The trial judge responded in the affirmative, but requested that they reconsider if there might be more specific questions - Some 45 minutes later, the jury advised the judge that they did not want to watch any video or listen to any tape, but wanted to know which hand the co-accused used to cover which ear when describing the first gunshot - Pursuant to the accused's counsel's suggestion, and with the consent of all counsel, the jury were shown a few seconds of the co-accused's videotaped statement so that they could see the action that had been the subject of their inquiry - Several hours later, the jury returned with a guilty verdict - The accused appealed, asserting that the trial judge erred in denying the jury's initial request and in isolating a portion of the videotape - The New Brunswick Court of Appeal rejected the assertion - While encouraging the jury to focus their inquiry, the trial judge did not close the door to fulfilling their request - Moreover, the jury's second request was evidence that it was not discouraged from seeking additional clarification - The judge's response to the jury's second inquiry was beyond reproach - See paragraphs 26 to 34.

Criminal Law - Topic 4345

Procedure - Jury - Evidence - Jury request to review evidence or argument - An accused appealed his conviction for second degree murder, asserting that the trial judge should have recharged the jury after a portion of the co-accused's videotaped statement was shown to the jury in answer to a question during their deliberations - The New Brunswick Court of Appeal stated that the trial judge's omission had to be considered in light of the jury instructions in their entirety, including the mid-trial instructions and the final charge - The trial judge repeatedly instructed the jury in the clearest of terms that the accused's statement could not be used as evidence against the accused - Considering all of the trial judge's previous instructions to the jury on this point, the jury was necessarily acutely aware of the limited use that could be made of the accused's statement - While it might have been prudent for the judge to reiterate the warning, his failure to do so did not amount to an error in law - See paragraphs 35 to 46.

Criminal Law - Topic 4379.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding evidence admissible for limited purpose - [See second Criminal Law - Topic 4345 ].

Criminal Law - Topic 4388

Procedure - Charge or directions - Jury or judge alone - Directions re addresses by counsel - An accused appealed his conviction for second degree murder, asserting that Crown counsel misinterpreted DNA evidence in his jury address and that this called for a strong "judicial direction" - The accused asserted that there was a real possibility that the jury misused the evidence in convicting him - The New Brunswick Court of Appeal rejected the argument - The overarching theme of the trial judge's jury charge was that the main issues in this case were whether the Crown had proven beyond a reasonable doubt (1) that the accused was involved in the robbery of the murder victim and (2) whether he had been the one who had fired the gun and killed him - The focus of the case was properly identified as whether the evidence of several unsavoury witnesses, including the co-accused, was sufficient to displace reasonable doubt - The judge warned the jury not to allow any respect they might have for the experts who testified to influence their objective and dispassionate consideration of the evidence - He effectively told the jury that the DNA evidence was of little value, and warned them to be very careful in determining whether or not it really proved anything - Reading the charge as a whole, the trial judge properly conveyed to the jury the very limited use that could be made of the DNA evidence - See paragraphs 47 to 55.

Criminal Law - Topic 4388

Procedure - Charge or directions - Jury or judge alone - Directions re addresses by counsel - An accused appealed his conviction for second degree murder, asserting that the trial judge erred in his instructions to the jury following the Crown's improper jury address - The New Brunswick Court of Appeal stated that the Crown's address contained improper comments - The Crown injected statements of personal opinion or belief into his argument - Several aspects of the charges appealed to the juror's emotions - Among these inflammatory remarks were references to the accused's lifestyle, his language and his tattoo - The Crown also misinterpreted the conclusions that could be drawn from the DNA evidence and might have left the wrong impression that the co-accused's statements could be used against the accused - However, the court dismissed the appeal where the trial judge properly intervened and immediately gave forceful instructions with sufficient examples of the inappropriate comments to ensure that the jurors would not be improperly influenced - This repaired any damage to the jury's decision-making process and restored a proper balance of fairness - Considering the evidence presented at trial, the judge's mid-trial instructions, the instructions that immediately followed the Crown's address and the judge's entire charge, it was inconceivable that the jury could have been improperly influenced by the Crown's inappropriate remarks - This was the view of the trial judge and the two experienced defence counsel, who correctly agreed at trial that no further instructions were needed - See paragraphs 56 to 80.

Criminal Law - Topic 4419

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Intemperate or improper statements - [See Barristers and Solicitors - Topic 1802 and second Criminal Law - Topic 4388 ].

Criminal Law - Topic 5043

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where address by counsel inflammatory or in error - [See Barristers and Solicitors - Topic 1802 and second Criminal Law - Topic 4388 ].

Criminal Law - Topic 5047

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Curing of error by subsequent instruction by trial judge - [See Barristers and Solicitors - Topic 1802 and second Criminal Law - Topic 4388 ].

Avocats et notaires - Cote 1802

Le procureur de la couronne - Rôle - [Voir Barristers and Solicitors - Topic 1802 ].

Avocats et notaires - Cote 1803

Le procureur de la couronne - Devoirs - [Voir Barristers and Solicitors - Topic 1803 ].

Droit criminel - Cote 4302.2

Procédure - Devoirs et fonctions du juge du procès - A l'égard de la conduite de la Couronne - [Voir Criminal Law - Topic 4302.2 ].

Droit criminel - Cote 4345

Procédure - Jury - Preuve - Demande du jury d'examiner la preuve ou les arguments - [Voir Criminal Law - Topic 4345 ].

Droit criminel - Cote 4379.2

Procédure - Exposé ou directives - Juge seul ou avec jury - Instructions concernant la recevabilité de la preuve à des fins limitées - [Voir Criminal Law - Topic 4379.2 ].

Droit criminel - Cote 4388

Procédure - Exposé ou directives - Juge seul ou avec jury - Directives concernant les exposés des avocats - [Voir Criminal Law - Topic 4388 ].

Droit criminel - Cote 4419

Procédure - Observations introductives et finales - Résumé - Avocat - Observations finales - Déclarations intempestives ou irrégulières - [Voir Criminal Law - Topic 4419 ].

Droit criminel - Cote 5043

Appels - Actes criminels - Rejet de l'appel si aucun tort important ou aucune erreur judiciaire grave ne s'est produit - Exposé incendiaire ou erroné de l'avocat - [Voir Criminal Law - Topic 5043 ].

Droit criminel - Cote 5047

Appels - Actes criminels - Rejet de l'appel si aucun tort important ou aucune erreur judiciaire grave ne s'est produit - Correction d'une erreur par directive subséquente du juge du procès - [Voir Criminal Law - Topic 5047 ].

Cases Noticed:

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 31].

R. v. Andrade (1985), 6 O.A.C. 345; 18 C.C.C.(3d) 41 (C.A.), refd to. [para. 31].

R. v. Kiyoshk (K.) (1999), 118 O.A.C. 269; 133 C.C.C.(3d) 478 (C.A.), refd to. [para. 31].

R. v. Ostrowski and Correia, [1990] 2 S.C.R. 82; 107 N.R. 230; 70 Man.R.(2d) 122, refd to. [para. 31].

R. v. Henderson (R.R.) (1999), 120 O.A.C. 99; 44 O.R.(3d) 628 (C.A.), dist. [para. 32].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 35].

R. v. Lane and Ross, [1970] 1 O.R. 681 (H.C.), agreed with [para. 45].

R. v. Boucher, [1955] S.C.R. 16, refd to. [para. 57].

R. v. Swietlinski (R.) - see Swietlinski v. Ontario (Attorney General).

Swietlinski v. Ontario (Attorney General), [1994] 3 S.C.R. 481; 172 N.R. 321; 75 O.A.C. 161, refd to. [para. 58].

R. v. Romeo, [1991] 1 S.C.R. 86; 119 N.R. 309; 110 N.B.R.(2d) 57; 276 A.P.R. 57, reving. (1989), 93 N.B.R.(2d) 332; 238 A.P.R. 332 (C.A.), refd to. [paras. 61, 62].

R. v. Sappier (A.G.) (1992), 129 N.B.R.(2d) 181; 325 A.P.R. 181 (C.A.), refd to. [para.

61].

R. v. Michaud (F.) (1995), 161 N.B.R.(2d) 215; 414 A.P.R. 215 (C.A.), affd. [1996] 2 S.C.R. 458; 198 N.R. 231; 178 N.B.R.(2d) 308; 454 A.P.R. 308, refd to. [para. 61].

R. v. Pitt (G.W.) (1996), 181 N.B.R.(2d) 126; 460 A.P.R. 126 (C.A.), refd to. [para. 61].

R. v. Doiron (E.) (2007), 315 N.B.R.(2d) 205; 815 A.P.R. 205; 2007 NBCA 41, refd to. [para. 61].

R. v. Charest (A.) (1990), 28 Q.A.C. 258 (C.A.), refd to. [para. 70].

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, refd to. [para. 74].

Counsel:

Avocats:

Margaret Gallagher, for the appellant;

W. Stephen Wood, Q.C., for the respondent.

This appeal was heard on April 24, 2007, by Drapeau, C.J.N.B., Turnbull and Richard, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the court was delivered in both official languages on December 20, 2007, by Richard, J.A.

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16 practice notes
  • Table of cases
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • June 23, 2020
    ...220 R v Meer, 2016 SCC 5, [2016] 1 SCR 23 ............................................................. 576 R v Melanson, 2007 NBCA 94 ............................................................................ 525 R v Mellenthin, [1992] 3 SCR 615, 76 CCC (3d) 481, [1992] SCJ No 100 ............
  • The Trial Process
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • June 23, 2020
    ...NBCA 16 [ Copp ]; R v L(L) , 2009 ONCA 413 [ L(L) ]; GS v R , 2009 NBCA 82. 225 See the review of cases on this issue in R v Melanson , 2007 NBCA 94 [ Melanson ]. See also R v Horan , 2008 ONCA 589 [ Horan ]. 226 Horan , ibid . 227 L(L) , above note 224. 228 See, for example, Horan , above ......
  • The Trial Process
    • Canada
    • Irwin Books Archive Criminal Procedure. Second Edition
    • September 2, 2012
    ...]; R. v. L.(L.) , 2009 ONCA 413 [ L.(L.) ]; R. v. S.(G.) , 2009 NBCA 82. 189 See the review of cases on this issue in R. v. Melanson , 2007 NBCA 94 [ Melanson ]. See also R. v. Horan , 2008 ONCA 589 [ Horan ]. 190 Horan , ibid . 191 L.(L.) , above note 188. 192 See, for example, Horan , abo......
  • Table of cases
    • Canada
    • Irwin Books Archive Criminal Procedure. Second Edition
    • September 2, 2012
    ...(3d) 40, [1998] S.C.J. No. 19 ..................................................................................... 226 R. v. Melanson, 2007 NBCA 94 ......................................................................... 364 CRIMINAL PROCEDURE 454 R. v. Mellenthin, [1992] 3 S.C.R. 615, 76......
  • Request a trial to view additional results
10 cases
  • R. v. Cormier (R.J.),
    • Canada
    • Court of Appeal (New Brunswick)
    • April 10, 2012
    ...to be applied to determine whether remarks made by counsel during the closing address are inappropriate: In R. v. Melanson (S.A.) (2007), 325 N.B.R.(2d) 203, [2007] N.B.J. No. 474 (QL), 2007 NBCA 94, Richard J.A. has this to say at para. 70: With regard to the reprehensible statements Crown......
  • R. v. G.S., (2009) 351 N.B.R.(2d) 279 (CA)
    • Canada
    • New Brunswick Court of Appeal (New Brunswick)
    • December 10, 2009
    ...refd to. [para. 68]. R. v. Joyce (K.R.) (1998), 203 N.B.R.(2d) 1; 518 A.P.R. 1 (C.A.), refd to. [para. 70]. R. v. Melanson (S.A.) (2007), 325 N.B.R.(2d) 203; 836 A.P.R. 203; 2007 NBCA 94, refd to. [para. R. v. R.S.L. (2006), 300 N.B.R.(2d) 24; 782 A.P.R. 24; 2006 NBCA 64, dist. [para. 79]. ......
  • R. v. Clyke,
    • Canada
    • Court of Appeal (Ontario)
    • November 16, 2021
    ...A caution with precise examples is preferable to a general appeal to the jury to be dispassionate: Melanson v. R., 2007 NBCA 94, 230 C.C.C. (3d) 40, at para. 75. Judges should identify clear improprieties to the jury and provide “an unambiguous direction that they are to be disregard......
  • R. v. Copp (J.S.), 2009 NBCA 16
    • Canada
    • New Brunswick Court of Appeal (New Brunswick)
    • January 14, 2009
    ...Optimum Insurance Co. v. Donovan (2008), 340 N.B.R.(2d) 45; 871 A.P.R. 45; 2009 NBCA 6, consd. [para. 11]. R. v. Melanson (S.A.) (2007), 325 N.B.R.(2d) 203; 836 A.P.R. 203; 2007 NBCA 94, consd. [para. R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, consd. [para. 22]. Stat......
  • Request a trial to view additional results
2 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • June 23, 2020
    ...220 R v Meer, 2016 SCC 5, [2016] 1 SCR 23 ............................................................. 576 R v Melanson, 2007 NBCA 94 ............................................................................ 525 R v Mellenthin, [1992] 3 SCR 615, 76 CCC (3d) 481, [1992] SCJ No 100 ............
  • The Trial Process
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • June 23, 2020
    ...NBCA 16 [ Copp ]; R v L(L) , 2009 ONCA 413 [ L(L) ]; GS v R , 2009 NBCA 82. 225 See the review of cases on this issue in R v Melanson , 2007 NBCA 94 [ Melanson ]. See also R v Horan , 2008 ONCA 589 [ Horan ]. 226 Horan , ibid . 227 L(L) , above note 224. 228 See, for example, Horan , above ......

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