R. v. Michaud (F.), (2000) 224 N.B.R.(2d) 371 (CA)

• Judge: Rice, Turnbull and Drapeau, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 25, 2000
• Jurisdiction: New Brunswick
• Citations: (2000), 224 N.B.R.(2d) 371 (CA);2000 CanLII 14347 (NB CA);224 NBR (2d) 371;144 CCC (3d) 62;[2000] NBJ No 75 (QL);574 APR 371

R. v. Michaud (F.) (2000), 224 N.B.R.(2d) 371 (CA);

    224 R.N.-B.(2e) 371; 574 A.P.R. 371

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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Temp. Cite: [2000] N.B.R.(2d) TBEd. MR.010

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

(267/96/CA)

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

New Brunswick Court of Appeal

Rice, Turnbull and Drapeau, JJ.A.

February 25, 2000.

Summary:

The accused was charged with first degree murder. Albert testified at the prelim­inary inquiry and the accused's first trial. Albert later died. The Crown applied to have Al­bert's evidence from the preliminary inquiry and the first trial read into the record pur­suant to s. 715 of the Criminal Code.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 183 N.B.R.(2d) 161; 465 A.P.R. 161, al­lowed the application. The accused was subsequently convicted. The accused ap­pealed his conviction.

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

Editor's Note: For an earlier decision in this matter see 198 N.R. 231; 178 N.B.R.(2d) 308; 454 A.P.R. 308 (S.C.C.), affing. 161 N.B.R.(2d) 215; 414 A.P.R. 215 (C.A.).

Criminal Law - Topic 2754

Attempts, conspiracies, accessories and parties - Parties to offences - Offence resulting from acting on common intention to carry out unlawful purpose - Albert, whose testimony was read into the record, testified that he and the accused went to the victim's home to rob her and the ac­cused raped and killed her - Another Crown witness testified that the accused told him that although he robbed and raped the victim, Albert killed her - The trial judge charged the jury that it could con­clude, based on Albert's testimony, that the accused killed the victim while sexually assaulting her or attempting to sexually assault her and, therefore, was guilty of first degree murder as the principal party - The trial judge also instructed the jury that, if it found Albert killed the victim, it could convict the accused as a party to first degree murder under s. 21(2) of the Crim­inal Code - The New Brunswick Court of Appeal stated that s. 21(2) could not be a source of criminal liability for first degree murder - The court agreed that the trial judge misdirected the jury on the ap­plication of s. 21(2) - The court ordered a new trial - See paragraphs 5 to 15.

Criminal Law - Topic 3587

Preliminary inquiry - Evidence - Admis­sion at trial of evidence taken at a prelimi­nary inquiry - The accused was charged with first degree murder - Albert testified at the preliminary inquiry and the ac­cused's first trial, but later died - The Crown applied to have Albert's evidence read into the record (Criminal Code, s. 715) - The accused opposed the applica­tion on the ground that Albert had alleg­edly made three out of court statements exoner­ating the accused - The accused objected to the reading in of Albert's evi­dence where the accused did not have an opportunity to cross-examine him on his prior inconsistent statements and its ad­mission would be unfair - The New Brunswick Court of Appeal affirmed that Albert's evidence could be read into the record - The prior inconsistent statements could be admitted into evidence - See paragraphs 16 to 30.

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - [See Criminal Law - Topic 2754 ].

Criminal Law - Topic 5392

Evidence and witnesses - Trials - Use of evidence in one trial in another - [See Criminal Law - Topic 3587 ].

Criminal Law - Topic 5420.1

Evidence and witnesses - Witnesses - Admissibility of evidence previously taken where witness unavailable or unable to testify - [See Criminal Law - Topic 3587 ].

Evidence - Topic 1031

Relevant facts, relevance and materiality - Admissibility - Prior consistent state­ments - The accused was charged with first de­gree murder - Albert testified at the pre­liminary inquiry and the accused's first trial that the accused killed the victim - Albert later died - At the accused's second trial, the Crown read in Albert's prior testimony under s. 715(1) of the Criminal Code - The accused called three witnesses who testified that Albert made statements to them exculpating the accused - The Crown called Veilleux who testified that Albert had told him that the accused killed the victim - The New Brunswick Court of Appeal affirmed that Veilleux's evidence was admissible - Although the evidence was "oath-helping" hearsay, it was ad­miss­ible as part of the Crown's case in justifi­able anticipation of an attack on Albert's credibility on the basis of recent fabrica­tion and contrivance - See para­graph 30.

Evidence - Topic 1130

Relevant facts, relevance and materiality - Relevance of evidence offered - Prior consistent statements - [See Evidence - Topic 1031 ].

Evidence - Topic 1528

Hearsay rule - Exceptions and exclusions - Admission to prove consistency of evi­dence - [See Evidence - Topic 1031 ].

Evidence - Topic 4023

Witnesses - General - Credibility - Oath-helping or oath-attacking - [See Evidence - Topic 1031 ].

Evidence - Topic 4751

Witnesses - Examination - Prior incon­sistent statements - Use of and effect of use of - [See Crimi­nal Law - Topic 3587 ].

Cases Noticed:

R. v. Harbottle (J.), [1993] 3 S.C.R. 306; 157 N.R. 349; 66 O.A.C. 35; 84 C.C.C.(3d) 1; 24 C.R.(4th) 137, consd. [para. 14].

R. v. Sophonow (1986), 38 Man.R.(2d) 198; 50 C.R.(3d) 193 (C.A.), refd to. [para. 19].

R. v. Daviault (1995), 39 C.R.(4th) 269 (Que. C.), refd to. [para. 19].

R. v. Barembruch (R.W.) (1997), 96 B.C.A.C. 215; 155 W.A.C. 215; 119 C.C.C.(3d) 185 (C.A.), refd to. [para. 19].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258; 47 C.C.C.(3d) 289; 68 C.R.(3d) 193, refd to. [para. 20].

R. v. Davidson (1988), 28 O.A.C. 86; 42 C.C.C.(3d) 289 (C.A.), refd to. [para. 21].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 7 C.R.(4th) 117; 83 D.L.R.(4th) 193, refd to. [para. 24].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; [1996] 2 W.W.R. 153; 103 C.C.C.(3d) 1; 44 C.R.(4th) 1; 29 W.C.B.(2d) 152, refd to. [para. 24].

R. v. Gray (R.) (1999), 207 N.B.R.(2d) 69; 529 A.P.R. 69 (C.A.), refd to. [para. 24].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 24].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257; 94 D.L.R.(4th) 590; 15 C.R.(4th) 133, refd to. [para. 24].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81; 111 C.C.C.(3d) 129, refd to. [para. 25].

R. v. Evans (B.J.), [1993] 2 S.C.R. 629; 153 N.R. 212; 28 B.C.A.C. 81; 47 W.A.C. 81; 21 C.R.(4th) 321; 82 C.C.C.(3d) 338; 104 D.L.R.(4th) 200, refd to. [para. 30].

R. v. Owens (1986), 18 O.A.C. 125; 33 C.C.C.(3d) 275 (C.A.), refd to. [para. 30].

R. v. Fair (J.E.) (1993), 67 O.A.C. 251; 26 C.R.(4th) 220 (C.A.), refd to. [para. 30].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257; 19 C.R.(4th) 1, refd to. [para. 30].

Authors and Works Noticed:

Delisle, R.J., Annotation to R. v. Sopho­now (1986), 50 C.R.(3d) 195, generally [para. 20].

Dougherty, Francis M., Admissibility or Use in Criminal Trials of Testimony Given at Preliminary Proceedings by Witness Not Available at Trial, 38 A.L.R.(4th) 378 [para. 23].

Ewaschuk, Eugene G., Criminal Pleadings and Practice in Canada (2nd Ed. 1987) (Looseleaf), p. 16-52, paras. 16:2530, 16:2535 [para. 30].

Schiff, Stanley A., Evidence in the Litiga­tion Process (4th Ed. 1993), vol. 1, p. 431 [para. 25].

Counsel:

Gary A. Miller and Marc-Antoine Chias­son, for the appellant;

Graham J. Sleeth, Q.C., and Charles G. Couturier, for the respondent.

This appeal was heard on October 13, 1999, before Rice, Turnbull and Drapeau, JJ.A., of the New Brunswick Court of Ap­peal.

Drapeau, J.A., delivered the following judgment for the court on February 25, 2000.