R. v. Michaud (F.), (1995) 161 N.B.R.(2d) 215 (CA)

• Judge: Angers, Ryan and Turnbull, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: April 25, 1995
• Jurisdiction: New Brunswick
• Citations: (1995), 161 N.B.R.(2d) 215 (CA);1995 CanLII 5581 (NB CA);161 NBR (2d) 215;98 CCC (3d) 121;[1995] NBJ No 207 (QL);414 APR 215

R. v. Michaud (F.) (1995), 161 N.B.R.(2d) 215 (CA);

    161 R.N.-B.(2e) 215; 414 A.P.R. 215

MLB headnote and full text

[French language version follows English language version]

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

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Felix Michaud (appellant) v. Her Majesty The Queen (respondent)

(172/93/CA)

Indexed As: R. v. Michaud (F.)

New Brunswick Court of Appeal

Angers, Ryan and Turnbull, JJ.A.

April 25, 1995.

Summary:

Michaud was convicted of first degree murder following a trial by judge and jury. He appealed.

The New Brunswick Court of Appeal allowed the appeal, quashed the conviction and ordered a new trial.

Criminal Law - Topic 4353

Procedure - Jury charge - Directions regarding corroboration - A jury convicted Michaud of first degree murder - Crucial evidence was provided by an accomplice - Michaud appealed - He argued, inter alia, that the trial judge erred in not instructing the jury that to constitute corroboration the evidence had to implicate the accused - The New Brunswick Court of Appeal held that the trial judge erred when he merely gave examples of implicating evidence but did not explain what "implicate" means in law - The court stated that "... where the evi­dence of the accomplice was crucial, proper instructions on corroboration were mandatory" - See paragraphs 29, 30.

Criminal Law - Topic 4354

Procedure - Jury charge - Directions regarding pleas or evi­dence of witnesses, co-accused and accomplices - A jury convicted Michaud of first degree murder - Crucial evidence was provided by an accomplice - Michaud appealed, arguing, inter alia, that the judge nullified his warning on the danger of convicting on uncorroborated accomplice evidence when he referred to that evidence as fact (the trial judge kept using the name Michaud as if Michaud was in fact the perpetrator) - The New Brunswick Court of Appeal held that "it would have been preferable for the judge to refer to Michaud as the alleged perpetrator or to tell the jury that if they found that Michaud was the perpetrator, to ask what his intention was" - However, that error would not justify a new trial - See para­graphs 26 to 28.

Criminal Law - Topic 4357

Procedure - Jury charge - Directions regarding defences and theory of the de­fence - [See Criminal Law - Topic 4372 ].

Criminal Law - Topic 4372

Procedure - Jury charge - Directions respecting alibi evidence or explanation by accused - Michaud was arrested for mur­der seven months after the victim's death - His defence was alibi - The New Bruns­wick Court of Appeal held that the trial judge erred in instructing the jury to con­sider delay as a factor in con­sidering the alibi, and in merely summar­izing the argu­ments of defence counsel without pointing out the supporting evi­dence - The trial judge also erred respect­ing the inferences which could be drawn from a determina­tion that an alibi was false - The court stated that "[f]or an inference of guilt to be drawn, the alibi must be proven false by independent evi­dence which proves fabri­cation, and not just by weighing contradic­tory stories" - See paragraphs 31 to 36.

Criminal Law - Topic 4374

Procedure - Jury charge - Duty to relate law to facts - [See Crimi­nal Law - Topic 4372 ].

Criminal Law - Topic 4388

Procedure - Jury charge - Directions re addresses by counsel - [See Criminal Law - Topic 4419 ].

Criminal Law - Topic 4392

Procedure - Jury charge - Directions re inferences of guilt - [See Criminal Law - Topic 4372 ].

Criminal Law - Topic 4419

Procedure - Opening and closing address­es, summing up - Counsel - Clos­ing ad-dress - Intemperate or improper state­ments - Michaud was convicted of first degree murder following a trial by judge and jury - At trial, in closing argu­ment, Crown counsel "used inflammatory lan­guage, misled the jury, gave her per­sonal views and generally was overly fervid in playing to the emotions of the jurors" - The New Brunswick Court of Appeal ordered a new trial - The court stated that "[s]ince coun­sel had specifically invited the jury to convict on the basis of Michaud's bad character, it was incumbent on the trial judge to specifically refer to those remarks, perhaps admonish Crown counsel, but tell the jury in strong words to disregard that approach by counsel" - See paragraphs 37 to 49.

Criminal Law - Topic 5315

Evidence and witnesses - Inferences - Of guilt - From false alibi - [See Criminal Law - Topic 4372 ].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices and co-defendants - Warning to jury of danger of reliance on - [See Criminal Law - Topic 4353 and Crimi­nal Law - Topic 4354 ].

Criminal Law - Topic 5515

Evidence and witnesses - Evidence of accomplices and co-defendants - What constitutes corroboration - [See Criminal Law - Topic 4353 ].

Cases Noticed:

R. v. Yanover and Gerol (No. 1) (1985), 9 O.A.C. 93; 20 C.C.C.(3d) 300 (C.A.), refd to. [para. 28].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; [1983] 1 W.W.R. 193; 27 C.R.(3d) 304; 136 D.L.R.(3d) 89; 67 C.C.C.(2d) 1, refd to. [para. 29].

R. v. Cannon (1990), 111 N.B.R.(2d) 389; 277 A.P.R. 389 (C.A.), refd to. [para. 31].

R. v. Gillespie (1988), 85 N.B.R.(2d) 142; 217 A.P.R. 142 (C.A.), refd to. [para. 33].

R. v. Boucher, [1955] S.C.R. 16, refd to. [para. 37].

R. v. Romeo, [1991] 1 S.C.R. 86; 119 N.R. 309; 110 N.B.R.(2d) 57; 276 A.P.R. 57, refd to. [para. 46].

R. v. Romeo (1989), 93 N.B.R.(2d) 332; 238 A.P.R. 332 (C.A.), refd to. [para. 46].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [para. 48].

Counsel:

Robert D. MacElwain, for the appellant;

Jocelyne Moreau-Bérubé, Q.C., for the respondent.

This appeal was heard on March 10, 1994, by Angers, Ryan and Turnbull, JJ.A., of the New Brunswick Court of Appeal.

On April 25, 1995, the following judgment was delivered by the court.