R. v. Muchikekwanape (R.),

• Jurisdiction: Manitoba
• Judge: Twaddle, Kroft and Steel, JJ.A.
• Neutral Citation: 2002 MBCA 78
• Citation: (2002), 166 Man.R.(2d) 81 (CA),2002 MBCA 78,[2002] 9 WWR 293,166 CCC (3d) 144,[2002] MJ No 253 (QL),166 Man R (2d) 81,278 WAC 81,166 Man.R.(2d) 81,[2002] M.J. No 253 (QL),278 W.A.C. 81,166 ManR(2d) 81,(2002), 166 ManR(2d) 81 (CA)
• Date: 12 June 2002
• Court: Court of Appeal (Manitoba)

R. v. Muchikekwanape (R.) (2002), 166 Man.R.(2d) 81 (CA);

    278 W.A.C. 81

MLB headnote and full text

Temp. Cite: [2002] Man.R.(2d) TBEd. JN.018

Her Majesty The Queen (respondent) v. Roderick Muchikekwanape (accused/appellant)

(AR 00-30-04819; 2002 MBCA 78)

Indexed As: R. v. Muchikekwanape (R.)

Manitoba Court of Appeal

Twaddle, Kroft and Steel, JJ.A.

June 12, 2002.

Summary:

An accused appealed his conviction for first degree murder, asserting that the trial judge made a number of errors in her charge to the jury, thereby prejudicing the jurors' ability to render an impartial verdict.

The Manitoba Court of Appeal, Twaddle, J.A., concurring in the result, dismissed the appeal.

Criminal Law - Topic 670

Sexual offences - Rape or sexual assault - Sexual assault defined - The Manitoba Court of Appeal stated that the true substance of a sexual assault was the violation of the victim's sexual integrity and the test to be applied in determining whether there was such a violation was an objective one - See paragraph 58.

Criminal Law - Topic 673

Sexual offences - Rape or sexual assault - Jury charge - The Manitoba Court of Appeal stated that in any sexual assault case where a jury might reasonably have a doubt regarding the sexual quality of the relevant actions, the trial judge was duty bound to explain that it was for the jurors to decide whether they were convinced, be-yond a reasonable doubt, that the assault was sexual in nature - That decision should not normally be taken away from them - The only time such an instruction was unnecessary was where the allegation included actions which were very obviously overtly sexual, such as, but not limited to, cases of intercourse, be it vaginal, oral, or anal - See paragraph 61.

Criminal Law - Topic 673

Sexual offences - Rape or sexual assault - Jury charge - In a first degree murder trial, the Crown relied on the removal of the victim's shorts and her genitals having been cut to establish a sexual assault - The accused submitted that the victim died from injuries received in a fall and that someone came along, removed her shorts and disposed of the body - The trial judge instructed the jurors that sexual assault was the application of force to another in the context of sexuality and that if they decided that the shorts had been removed without consent or her genitals deliberately cut by the accused, that would amount to a sexual assault - The Manitoba Court of Appeal held that the trial judge did not err in taking away from the jury the determination of whether the assault was sexual in nature - Forcibly removing someone's clothing, leaving them naked from the waist down and/or intentionally cutting their genitals, in the absence of an explanation indicating otherwise, were acts violating that person's sexual integrity - See paragraphs 48 to 65.

Criminal Law - Topic 1265.1

Murder - General principles - Jury charge - First degree murder - An accused charged with first degree murder submitted that the victim died from injuries received in a fall and that someone came along, removed her shorts and put her body into a river - The accused pointed out that there had been no blood on his clothing - The trial judge's jury charge noted that the accused had an opportunity to wash - The judge asked the jurors to consider why someone would remove the victim's shorts before disposing of her - She suggested that it would be "difficult" and "leave one covered with blood" and asked the jurors if it made any sense - She also asked them to consider why anyone would dispose of a body if death had occurred accidentally and opined that it would not have been easy, clean or safe - The Manitoba Court of Appeal held that the charge did not denigrate the defence's theory - The judge told the jurors that they were the judges of facts, not her, and that, although she was entitled to express an opinion, they were not bound by it - Given the defence's theory, the questions raised were no stronger than the facts warranted - The judge had the right and the duty to highlight relevant evidence - See paragraphs 22 to 27.

Criminal Law - Topic 1269

Murder - General principles - First degree murder - What constitutes - A jury had to find that the victim's death was caused while the accused was "committing or attempting to commit a sexual assault" to convict of first degree murder (Criminal Code, s. 231(5)(b)) - The trial judge instructed the jury that a first degree murder charge still applied if the victim had died by the time the sexual assault took place, provided that the acts causing death and the acts constituting the sexual assault were all part of one single, continuous transaction - The Manitoba Court of Appeal affirmed the instruction - See paragraphs 53 to 65.

Criminal Law - Topic 1269

Murder - General principles - First degree murder - What constitutes - Section 231(5)(b) of the Criminal Code provided that murder was first degree murder if death occurred while the person was "committing or attempting to commit", inter alia, a sexual assault - The Manitoba Court of Appeal stated that if the sexual activity clearly occurred after death, then a first degree murder charge could not be made out - The issue did not arise where the sexual assault clearly occurred before death - This included a sexual assault that was started before death and was merely completed or intensified after death - Pre-death violence perpetrated to subdue a victim to perpetrate a sexual assault was in itself a sexual assault - The issue of a continuous single transaction arose only in circumstances where the sexual acts were inextricably linked and intertwined with the murder - In such circumstances, it was for the jury to determine as a matter of fact whether the temporal and causal connections were so close together that they formed a continuous single transaction - If so, then, as a single transaction, the murder occurred "while committing" a sexual assault and a charge of first degree murder was made out - See paragraphs 88 to 90.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Directions on evidence generally - Opinions of judge - [See Criminal Law - Topic 1265.1 ].

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Directions on evidence generally - Opinions of judge - An accused appealed his conviction for first degree murder, asserting that the trial judge so denigrated the theory of the defence in her jury charge and so forcefully stated her own opinion, that the jury's ability to render an impartial verdict was impacted prejudicially - The Manitoba Court of Appeal rejected the assertion, stating that "The trial judge is entitled to express a view of the evidence so long as: (1) the jury understands that they are not bound by the judge's views on the evidence; (2) the opinions are no stronger than the facts warrant; and (3) the opinions are not overstated to the point where there is a likelihood that the jury would be over-awed by them." - See paragraph 26.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - [See Criminal Law - Topic 1265.1 ].

Criminal Law - Topic 4365

Procedure - Charge or directions - Jury or judge alone - Directions regarding expert evidence - An accused appealed his murder conviction, asserting that the trial judge had failed to summarize or explain expert testimony respecting bloodstain evidence and highlight for the jury the difference in the experts' qualifications and experience - The Manitoba Court of Appeal rejected the assertion - In her opening directions, the trial judge discussed the testimony of witnesses generally - When the Crown's expert was cross-examined as to his qualifications, she explained the special nature of expert testimony - In her closing charge, she explained how to evaluate expert testimony - She told the jurors to consider the experts' education, training and experience and how to deal with the differences of opinion - She linked the relevance of the evidence with the issue of how the victim's death occurred - While not obligated to review each piece of evidence, she highlighted the matters which she considered especially significant and concluded by reminding the jury that because of the testimony's technical nature, transcripts were available - Also, the defence had pointed out the conflicting opinions and differences in qualifications - See paragraphs 28 to 32.

Criminal Law - Topic 4365

Procedure - Charge or directions - Jury or judge alone - Directions regarding expert evidence - An accused appealed his murder conviction, asserting that the trial judge had misstated the evidence by telling the jury that certain matters should be decided by the application of their "common sense" rather than by expert opinion - The Manitoba Court of Appeal rejected the assertion - While the trial judge might have overused the phrase, most of the instances referred to situations where the jury was told not to prefer their own common sense over the experts' opinions, but rather, to use their common sense in determining which of the evidence of the experts to accept, if any - Jurors had to use their collective wisdom in considering the value of expert evidence - They had to consider the qualifications and impartiality of each expert - They also had to consider whether the assumptions upon which the opinion was based were supported by the evidence and had to consider the whole of the opinion itself - Using one's common sense was an often used phrase to explain that process - See paragraphs 33 to 35.

Criminal Law - Topic 4378

Procedure - Charge or directions - Jury or judge alone - Judicial review of - An accused appealed his conviction for first degree murder, asserting that the trial judge made a number of errors in her charge to the jury - The Manitoba Court of Appeal stated that "It is unrealistic to isolate certain sentences or words in a charge. Rather, in reviewing the charge on appeal, the court is to apply a functional approach and view the charge as a whole. Not only should the closing charge be reviewed, but where, as in this case, the trial judge gave direction to the jury throughout the trial, the opening charge, those directions throughout the trial, and the closing charge should be reviewed to determine whether the jury could be said to have been led into error." - See paragraph 15.

Criminal Law - Topic 4387

Procedure - Charge or directions - Jury or judge alone - Comment by judge on facts -[See Criminal Law - Topic 1265.1 and second Criminal Law - Topic 4352 ].

Criminal Law - Topic 4399.8

Procedure - Charge or directions - Jury or judge alone - Directions re role of judge and jury - [See Criminal law - Topic 1265.1 ].

Criminal Law - Topic 5360

Evidence and witnesses - Photographs, movies, videotapes, etc. - General principles - Admissibility - At issue in a murder trial was whether the victim's injuries resulted from an accident or were inflicted intentionally - The defence's expert relied on a photograph taken at the victim's autopsy in reaching a conclusion which was different from that of the Crown's expert - The trial judge permitted the photograph to be admitted to show the jurors the extent of the dislocation of the bony features of the victim's face - The Manitoba Court of Appeal refused to interfere with the exercise of the trial judge's discretion in admitting the photograph - The trial judge had stated the test correctly and weighed the probative value of the photograph against the prejudice to the accused within the facts of the case - In her charge, she told the jurors the purpose for which the photograph was to be used and warned them against its improper use - See paragraphs 41 to 47.

Cases Noticed:

R. v. Duck (N.J.) and Duck (J.) (1993), 85 Man.R.(2d) 91; 41 W.A.C. 91 (C.A.), refd to. [para. 15].

R. v. Jack (B.) (1993), 88 Man.R.(2d) 93; 51 W.A.C. 93 (C.A.), refd to. [para. 15].

R. v. Laporte (C.R.) (1994), 92 Man.R.(2d) 278; 61 W.A.C. 278 (C.A.), refd to. [para. 15].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209; 78 C.C.C.(3d) 289, refd to. [para. 16].

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; 113 C.C.C.(3d) 1, refd to. [para. 17].

R. v. Jorgensen (T.J.) (2001), 156 Man.R.(2d) 252; 246 W.A.C. 252 (C.A.), refd to. [para. 18].

R. v. Yanover and Gerol (1985), 9 O.A.C. 93; 20 C.C.C.(3d) 300 (C.A.), refd to. [para. 24].

R. v. Sophonow (1984), 29 Man.R.(2d) 1 (C.A.), affd. [1984] 2 S.C.R. 524; 57 N.R. 13; 31 Man.R.(2d) 8, refd to. [para. 24].

R. v. Garofoli et al. (1988), 27 O.A.C. 1; 41 C.C.C.(3d) 97 (C.A.), refd to. [para. 26].

R. v. Yager (J.J.), [1998] O.A.C. Uned. 432 (C.A.), dist. [para. 32].

R. v. Hanscom (D.A.) (1996), 172 N.B.R.(2d) 29; 439 A.P.R. 29 (C.A.), dist. [para. 32].

R. v. Terceira (J.) (1998), 107 O.A.C. 15; 123 C.C.C.(3d) 1 (C.A.), affd. [1999] 3 S.C.R. 866; 250 N.R. 98; 129 O.A.C. 283, refd to. [para. 35].

R. v. Schaefler, [1993] O.J. No. 71 (Gen. Div.), refd to. [para. 43].

R. v. Kinkead, [1999] O.J. No. 1498 (Sup. Ct.), refd to. [para. 44].

R. v. Chase, [1987] 2 S.C.R. 293; 80 N.R. 247; 82 N.B.R.(2d) 229; 208 A.P.R. 229; 37 C.C.C.(3d) 97; 45 D.L.R.(4th) 98; 59 C.R.(3d) 193, refd to. [paras. 56, 104].

R. v. K.B.V., [1993] 2 S.C.R. 857; 154 N.R. 277; 64 O.A.C. 198, refd to. [para. 57].

R. v. Richer (R.J.) (1993), 141 A.R. 116; 46 W.A.C. 116; 82 C.C.C.(3d) 385 (C.A.), affd. [1994] 2 S.C.R. 486; 168 N.R. 198; 155 A.R. 210; 73 W.A.C. 210, refd to. [paras. 62, 102].

R. v. Nette (D.M.) (2001), 277 N.R. 301; 158 B.C.A.C. 98; 258 W.A.C. 98; 205 D.L.R.(4th) 613 (S.C.C.), refd to. [para. 77].

R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. 1; 38 C.C.C.(3d) 97; 60 C.R.(3d) 346; 45 D.L.R.(4th) 546, refd to. [paras. 78, 96].

R. v. Ganton (G.C.) (1992), 105 Sask.R. 126; 32 W.A.C. 126; 77 C.C.C.(3d) 259 (C.A.), refd to. [paras. 79, 102].

R. v. Quesnel (1991), 71 Man.R.(2d) 1 (C.A.), consd. [paras. 84, 101].

R. v. Williams (G.H.J.) (1993), 26 B.C.A.C. 30; 44 W.A.C. 30 (C.A.), leave to appeal dismissed (1993), 164 N.R. 239; 47 B.C.A.C. 252; 76 W.A.C. 252 (S.C.C.), refd to. [para. 86].

R. v. Fliss, [1997] B.C.J. No. 3069 (Prov. Ct.), refd to. [para. 86].

R. v. Russell (D.), [2001] 2 S.C.R. 804; 274 N.R. 247; 150 O.A.C. 99, refd to. [para. 92].

R. v. Stevens (1984), 2 O.A.C. 239; 11 C.C.C.(3d) 518 (C.A.), refd to. [para. 97].

R. v. Khan (M.A.) (2001), 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 160 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 109].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 231(5) [para. 53].

Authors and Works Noticed:

Boyle, Christine L.M., Sexual Assault (1984), p. 75 [para. 60].

Counsel:

C.L. Dunn, for the appellant;

R.A. Saull, for the respondent.

This appeal was heard on November 15, 2001, before Twaddle, Kroft and Steel, JJ.A., of the Manitoba Court of Appeal.

The judgment of the court was delivered on June 12, 2002, including the following opinions:

Steel, J.A. (Kroft, J.A., concurring) - see paragraphs 1 to 93;

Twaddle, J.A. - see paragraphs 94 to 113.