R. v. Moffit (T.), 2015 ONCA 412

• Judge: Doherty, Pepall and Tulloch, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 25, 2014
• Jurisdiction: Ontario
• Citations: 2015 ONCA 412;(2015), 338 O.A.C. 144 (CA)

R. v. Moffit (T.) (2015), 338 O.A.C. 144 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JN.019

Her Majesty the Queen (respondent) v. Thomas Moffit (appellant)

(C51929; 2015 ONCA 412)

Indexed As: R. v. Moffit (T.)

Ontario Court of Appeal

Doherty, Pepall and Tulloch, JJ.A.

June 9, 2015.

Summary:

The accused appealed his second degree murder conviction, arguing that the verdict was unreasonable, the trial judge erred in his instructions to the jury on several points, and the trial judge should have ordered a mistrial after the jury heard irrelevant and prejudicial evidence.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 1314

Manslaughter - Jury charge - The accused was convicted of second degree murder of his domestic partner - He appealed his second degree murder conviction, arguing that the trial judge failed to properly instruct the jury on the mens rea required for manslaughter, focusing exclusively on the mens rea for murder and failed to instruct the jury on the objective foreseeabilily element of manslaughter - The Ontario Court of Appeal rejected this ground of appeal - The trial judge correctly instructed the jury on the mens rea required for manslaughter, and was not required to give a more detailed charge, given that defence counsel had conceded that if the jury concluded that the accused killed the victim, he was guilty of manslaughter - See paragraphs 80 to 84.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused was convicted of second degree murder of his domestic partner based on his sister's testimony that he had confessed to her - He appealed, arguing that the trial judge was required to give a full Vetrovec warning with respect to his sister's testimony - The trial judge gave a Titus instruction (i.e., that the sister's evidence should be approached with caution as she was facing a charge of being an accessory after the fact to murder and that she might have an interest in testifying favourably for the Crown) - The Ontario Court of Appeal dismissed the appeal - A Vetrovec warning was not mandatory in this case - The judge's instructions were adequate and, in any event, contained several elements of a standard Vetrovec warning - Further, the court noted defence counsel's concession that a Vetrovec warning was not required - See paragraphs 70 to 79.

Criminal Law - Topic 4375.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding exculpatory statements by accused - The accused was convicted of second degree murder of his domestic partner - His sister testified that he confessed to her, stating, inter alia, that he "couldn't believe it was that easy to break somebody's neck" - He appealed his second degree murder conviction, arguing that the trial judge erred in his charge on the use the jury could make of his sister's statement - He claimed that the trial judge was required to instruct the jury that it should acquit him of murder if it believed the exculpatory aspects of his alleged confession or on the basis of the exculpatory aspects even if it did not believe those aspects, as long as the jury did not reject them as untrue - The Ontario Court of Appeal rejected the accused's argument - His instruction on the sister's statement was appropriate - The aspects of the confession the accused pointed to were not clearly exculpatory - See paragraphs 63 to 68.

Criminal Law - Topic 4375.5

Procedure - Charge or directions to jury - Directions re prior misconduct or convictions - The accused appealed his second degree murder conviction - The accused argued that a "no probative value" instruction was required with respect to the evidence of his conduct before the killing where the evidence was equally consistent with murder and manslaughter - The pre-killing conduct included evidence of the tumultuous relationship he had with the victim (his domestic partner) and that he uttered a death threat to her - The Ontario Court of Appeal reviewed the charge and rejected the argument - Even assuming such an instruction could be required, it would not have been appropriate in this case as the evidence of the accused's conduct prior to the killing was probative of his mens rea - See paragraphs 32 to 62.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The accused appealed his second degree murder conviction, arguing that the jury charge respecting post-offence conduct evidence was inadequate - Post-offence conduct included his failure to seek help, failure to try to revive the victim, he moved the victim's body, told his sister his plan to dig a hole and put the victim in it, etc. - The Ontario Court of Appeal reviewed the charge and rejected this argument - The court held that the evidence of post-offence conduct, taken as a whole, was probative of whether the accused had the required mens rea for murder - To the extent that certain pieces of that evidence, viewed in isolation, could not support the Crown's inference, the jury was adequately instructed - See paragraphs 32 to 55.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The accused was convicted of second degree murder of his domestic partner - The accused's sister testified that he told her that he broke the victim's neck when he grabbed her by the hair and turned her head around and that he could not believe it was that easy to break somebody's neck - He appealed his second degree murder conviction, arguing that the verdict was unreasonable - He argued that his sister's evidence was not capable of giving rise to a reasonable inference of intention or recklessness because the evidence indicated that he was surprised that his actions caused the victim's death - The Ontario Court of Appeal rejected the accused's argument - There was evidence to support the jury's verdict - It was open to the jury to draw the inferences it did and conclude on the totality of the evidence that the accused had the mens rea for murder - The verdict was not unreasonable - See paragraphs 21 to 31.

Criminal Law - Topic 4953

Appeals - Indictable offences - New trials - Grounds - Admission of prejudicial evidence - The accused appealed his second degree murder conviction respecting his domestic partner, claiming that witnesses made statements during their testimony that were prejudicial to the accused - The statements included references to the accused having been in jail before, a near-repetition of an allegation that the accused had killed someone while in jail, an allegation of sexual assault, an allegation that he had an abusive relationship with his domestic partner and that he had stated during his booking video that he was banned from firearms and had a terrible record - The Ontario Court of Appeal rejected this ground of appeal - The court agreed that the evidence was potentially prejudicial, but the trial judge's response to the evidence during trial and in the course of the jury charge was adequate in the circumstances - See paragraphs 85 to 104.

Criminal Law - Topic 5020

Appeals - Indictable offences - Setting aside verdicts - Whether verdict unreasonable or unsupported by the evidence - [See Criminal Law - Topic 4865 ].

Criminal Law - Topic 5210

Evidence and witnesses - Admissibility and relevancy - Statements prejudicial to the accused - [See Criminal Law - Topic 4953 ].

Criminal Law - Topic 5408

Evidence and witnesses - Witnesses - Statements prejudicial to the accused - [See Criminal Law - Topic 4953 ].

Cases Noticed:

R. v. W.H., [2013] 2 S.C.R. 180; 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 A.P.R. 1; 2013 SCC 22, refd to. [para. 24].

R. v. Moo (K.S.) (2009), 253 O.A.C. 106; 247 C.C.C.(3d) 34; 2009 ONCA 645, leave to appeal refused (2010), 409 N.R. 400 (S.C.C.), refd to. [para. 29].

R. v. Hall (C.) (2010), 269 O.A.C. 199; 263 C.C.C.(3d) 5; 2010 ONCA 724, leave to appeal refused (2011), 423 N.R. 393 (S.C.C.), refd to. [para. 34].

R. v. Bucik (M.) (2011), 283 O.A.C. 161; 274 C.C.C.(3d) 421; 2011 ONCA 546, refd to. [para. 35].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 41].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 41].

R. v. Angelis (D.) (2013), 300 O.A.C. 367; 296 C.C.C.(3d) 143; 2013 ONCA 70, refd to. [para. 41].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 42].

R. v. Teske (P.) (2005), 202 O.A.C. 239; 32 C.R.(6th) 103 (C.A.), refd to. [para. 48].

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, refd to. [para. 51].

R. v. Simon (A.D.) (2010), 269 O.A.C. 359; 104 O.R.(3d) 340; 2010 ONCA 754, leave to appeal refused (2011), 422 N.R. 399 (S.C.C.) refd to. [para. 51].

R. v. Kostyk (F.) (2014), 321 O.A.C. 256; 312 C.C.C.(3d) 101; 2014 ONCA 447, refd to. [para. 55].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 70, footnote 1].

R. v. Titus, [1983] 1 S.C.R. 259; 46 N.R. 477; 33 C.R.(3d) 17; 2 C.C.C.(3d) 321; 144 D.L.R.(3d) 577, refd to. [para. 72, footnote 2].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 75].

R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), leave to appeal refused (2005), 336 N.R. 195; 204 O.A.C. 395 (S.C.C.), refd to. [para. 75].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 141 C.C.C.(3d) 321; 2000 SCC 11, refd to. [para. 75].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 77].

R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321; 83 C.C.C.(3d) 346, refd to. [para. 83].

R. v. Huang (Y.) (2013), 303 O.A.C. 192; 2013 ONCA 240, refd to. [para. 85].

R. v. Burke (H.P.), [2002] 2 S.C.R. 857; 290 N.R. 71; 160 O.A.C. 271; 2002 SCC 55, refd to. [para. 93].

R. v. Jeanvenne (A.) (2010), 270 O.A.C. 22; 261 C.C.C.(3d) 462; 2010 ONCA 706, refd to. [para. 93].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 95].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 100].

R. v. Griffin (J.) et al. (2009), 388 N.R. 334; 2009 SCC 28, refd to. [para. 99].

Counsel:

Ian R. Smith, for the appellant;

Christine Tier, for the respondent.

This appeal was heard on September 25, 2014, before Doherty, Pepall and Tulloch, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Tulloch, J.A., on June 9, 2015.