R. v. Morehouse (I.F.), (2008) 433 A.R. 11 (CA)

• Judge: Fraser, C.J.A., Côté and Conrad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 11, 2008
• Citations: (2008), 433 A.R. 11 (CA);2008 ABCA 225

R. v. Morehouse (I.F.) (2008), 433 A.R. 11 (CA);

      429 W.A.C. 11

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JN.071

Her Majesty the Queen (respondent) v. Ira Frederick Morehouse (appellant)

(0301-0367-A; 2008 ABCA 225)

Indexed As: R. v. Morehouse (I.F.)

Alberta Court of Appeal

Fraser, C.J.A., Côté and Conrad, JJ.A.

June 18, 2008.

Summary:

The accused was charged with the first degree murder of his estranged wife. At issue on a voir dire was the admissibility of oral statements made by the deceased to 12 witnesses.

The Alberta Court of Queen's Bench, in a decision reported at 353 A.R. 198, determined the admissibility of the statements. The accused was convicted by a judge and jury. The accused appealed his conviction for first degree murder on the basis that, since his trial, there had been a change in the law respecting hearsay, warranting a new trial.

The Alberta Court of Appeal dismissed the appeal.

Criminal Law - Topic 1279

Murder - Murder during commission of other offences - Evidence and proof - [See Criminal Law - Topic 1592 ].

Criminal Law - Topic 1592

Criminal harassment - Intention or mens rea - A judge and jury convicted the accused of the first degree murder of his estranged wife - Two alternative routes to first degree murder were left to the jury: i) planned and deliberate murder (Criminal Code, s. 231(2)) and ii) criminal harassment murder (s. 231(6)) - The Alberta Court of Appeal found that there was sufficient evidence to support a jury's finding of the accused's actual intent to cause fear - The evidence revealed a pattern of stalking of the deceased by the accused - The accused allowed himself to be seen by the deceased, repeatedly and often - He phoned family members to discuss her whereabouts - He appeared at places he knew the deceased would be - On the record here, a jury could readily find that this conduct qualified as harassment under s. 264(2)(a) (following) and (c) (watching and besetting) - Most important, a jury could reasonably infer that the accused knew that his stalking frightened the deceased where, inter alia, she had confronted him about tampering with her car in terms that supported an inference that he was frightening her - Further, physical evidence from the murder scene could be used to infer fear - See paragraphs 52 to 58.

Criminal Law - Topic 1593

Criminal harassment - What constitutes - [See Criminal Law - Topic 1592 ].

Criminal Law - Topic 4350

Procedure - Charge or directions - Jury or judge alone - General - The accused appealed his conviction on the ground, inter alia, that the trial judge failed to warn the jury with sufficient clarity and force - The Alberta Court of Appeal dismissed the appeal - None of the items complained of were persuasive - Most involved no misdirection or even arguable misdirection - The trial judge's warnings were all strictly correct - A number answered specific arguments by counsel about the draft charge - Some at first blush seemed incomplete, but only if read two ways: (a) if taken out of context, and (b) if read by a lawyer minutely parsing words and sensitive to the maxim expressio unius est exclusio alterius, an unreliable guide at best - That was not how to interpret jury charges - In any event, what was allegedly missing was found elsewhere in the charge in every case (or all but one), often numerous times - See paragraphs 48 to 51.

Evidence - Topic 1026

Relevant facts - Relevance and materiality - Admissibility - Prejudicial evidence - [See second Evidence - Topic 1527 ].

Evidence - Topic 1231

Relevant facts - Relevance and materiality - State of mind - Knowledge - A judge and jury convicted the accused of the first degree murder of his estranged wife - The accused appealed - He challenged the admissibility of certain hearsay evidence - The deceased had been dating Bacon - One evening about three weeks before her murder, the deceased and a friend went to Bacon's camper for coffee after being at a bar - The camper was in the bar's parking lot - The deceased had come to the bar in her own car and locked it in the parking lot - Only she and the accused ever had keys to that car - At the end of the evening, Bacon walked the deceased to her car - There was no sign of forcible entry, but Bacon testified that they both saw that one of her car seats was flipped over and the deceased was nervous - The deceased said that someone had tampered with her car; she had not left her seat that way when she had parked it - Bacon looked under the hood and saw a bare wire - The Alberta Court of Appeal stated that Bacon himself saw the displaced seat and the bare wire, so his evidence of that was not hearsay and was admissible as to the state of the vehicle - The same was true of his observation that the deceased was upset - See paragraph 14.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The Alberta Court of Appeal stated that statements not tendered for the truth of their contents are not hearsay at all - See paragraph 9.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - [See Evidence - Topic 1231 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - A judge and jury convicted the accused of the first degree murder of his estranged wife - The accused appealed - He challenged the admissibility of certain hearsay evidence, including the following - The deceased met a man named Bacon and went out with him a number of times - The deceased, Bacon, and at least one other friendly couple, attended at a bar one evening - Inside the bar, the deceased told her accompanying friend, Woiken, that the accused was in the room spying on her from behind a pillar - Woiken testified at trial that when she was told this, she looked and saw a knot of men where indicated, but could not tell if one was the accused - Nevertheless, the deceased's hearsay evidence that she had seen the accused at the bar was admitted for the truth of its contents, namely that the accused was present at the bar - Another friend was present and testified to the same thing and said it happened a number of times - The Alberta Court of Appeal was not satisfied that the trial judge erred in admitting this statement for its truth - See paragraph 13.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - A judge and jury convicted the accused of the first degree murder of his estranged wife - The accused appealed, challenging the admissibility of certain hearsay evidence - The deceased had been dating Bacon - One evening about three weeks before her murder, the deceased and a friend went to Bacon's camper for coffee after being at a bar - The camper was in the bar's parking lot - The deceased had come to the bar in her own car and locked it in the parking lot - Only she and the accused ever had keys to that car - At the end of the evening, Bacon walked the deceased to her car - There was no sign of forcible entry, but both Bacon and the deceased saw that one of her car seats was flipped over - The deceased said that someone had tampered with her car - Later, the deceased made similar comments about the displaced car seat to her son and three female friends, all of whom so testified at trial - The trial judge ruled that this evidence was not to be admitted to show that the deceased believed that it was the accused who in fact got into her car - However, the defence submitted that, in error, on two occasions witnesses referred to the evidence without that warning - The Alberta Court of Appeal dismissed the appeal - The court considered, inter alia, that two alternative routes to first degree murder were left to the jury: i) planned and deliberate murder (Criminal Code, s. 231(2)) and ii) criminal harassment murder (s. 231(6)) - The evidence of car tampering was admitted only to show the deceased's state of mind, not to prove who actually tampered with the car - Her state of mind was fear of the accused, an essential element of the criminal harassment in question - The defence's real objection to the car tampering evidence was that it should not have gone in at all because it could not be linked to him and its prejudicial value outweighed any probative value - The court disagreed - See paragraphs 15 to 33.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - A judge and jury convicted the accused of the first degree murder of his estranged wife - The accused appealed, challenging the admission of certain hearsay evidence, including the identification of the accused as the driver of a vehicle that went by the deceased on one of the last days of her life - The deceased remarked to her companion that the driver was the accused - The defence objected that the Crown's investigations of cars owned and rented by the accused did not turn up a purple car - The Alberta Court of Appeal dismissed the appeal - The court held, inter alia, that absence of corroboration was not disproof in any sense - Nothing in the Criminal Code or case law required that hearsay be corroborated to be admissible - See paragraphs 34 to 37.

Evidence - Topic 1668

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of physical sensation and mental condition - Statements of emotion - [See second Evidence - Topic 1527 ].

Evidence - Topic 1670

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of physical sensation and mental condition - Statements by victim - [See second Evidence - Topic 1527 ].

Evidence - Topic 5202

Witnesses - Corroboration - General principles - When required - [See third Evidence - Topic 1527 ].

Cases Noticed:

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, appld. [para. 9].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 9].

R. v. Teskey (L.M.), [2007] 2 S.C.R. 267; [2007] 8 W.W.R. 385; 364 N.R. 164; 412 A.R. 361; 404 W.A.C. 361; 280 D.L.R.(4th) 486; 2007 SCC 25, refd to. [para. 18].

R. v. D.D. (2005), 204 O.A.C. 55; 203 C.C.C.(3d) 6 (C.A.), refd to. [para. 32].

R. v. Goodstoney (G.E.) (2007), 404 A.R. 60; 394 W.A.C. 60; 2007 ABCA 88, refd to. [para. 33].

R. v. Elkins (M.R.) (1995), 86 O.A.C. 125; 26 O.R.(3d) 161 (C.A.), refd to. [para. 50].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417, refd to. [para. 53].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 53].

R. v. Seymour (J.), [1996] 2 S.C.R. 252; 197 N.R. 81; 76 B.C.A.C. 1; 125 W.A.C. 1, refd to. [para. 55].

R. v. Bigras, [2004] O.A.C. Uned. 426 (C.A.), refd to. [para. 55].

R. v. Cinous (J.) (2002), 285 N.R. 1; 162 C.C.C.(3d) 129; 2002 SCC 29, refd to. [para. 55].

Counsel:

E.J. Tolppanen, for the respondent;

C.B. Davison, for the appellant.

This appeal was heard on March 11, 2008, by Fraser, C.J.A., Côté and Conrad, JJ.A., of the Alberta Court of Appeal, who delivered the following memorandum of judgment on June 18, 2008.