R. v. Noureddine (C.), (2015) 341 O.A.C. 130 (CA)

• Judge: Doherty, Laskin and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 12, 2015
• Jurisdiction: Ontario
• Citations: (2015), 341 O.A.C. 130 (CA);2015 ONCA 770

R. v. Noureddine (C.) (2015), 341 O.A.C. 130 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. NO.021

Her Majesty the Queen (respondent) v. Chad Noureddine (appellant)

(C53774)

Her Majesty the Queen (respondent) v. Richard Sheridan (appellant)

(C53848; 2015 ONCA 770)

Indexed As: R. v. Noureddine (C.)

Ontario Court of Appeal

Doherty, Laskin and Lauwers, JJ.A.

November 12, 2015.

Summary:

The appellants (Sheridan and Noureddine) were charged with first degree murder and convicted of second degree murder. The trial judge sentenced Sheridan to life imprisonment without eligibility for parole for 18 years. He sentenced Noureddine to life imprisonment without eligibility for parole for 15 years. The appellants appealed their convictions and sentences.

The Ontario Court of Appeal allowed the appeals, quashed the convictions and ordered new trials on the charges of second degree murder.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - [See Criminal Law - Topic 4310 and Criminal Law - Topic 4316 ].

Criminal Law - Topic 202

General principles - Common law defences - Duress - Noureddine appealed his conviction for second degree murder submitting, inter alia, that the defence of duress should have been left with the jury - The Ontario Court of Appeal stated that "The duress defence in s. 17 of the Criminal Code applies only to perpetrators. The common law defence of duress is available to persons charged as aiders and abetters, including persons charged with murder." - The court assumed, without deciding that the statutory defence of duress was available to a person charged with being the perpetrator in a murder - The court found no realistic basis upon which the jury could have a doubt as to whether Noureddine had a safe avenue of escape - This was enough to conclude that the defence should not have been left - See paragraphs 89 to 100.

Criminal Law - Topic 226

General principles - Statutory defences or exceptions - Compulsion (duress) - [See Criminal Law - Topic 202 ].

Criminal Law - Topic 4310

Procedure - Jury - General - Empanelling - The Ontario Court of Appeal stated that "The trial judge's power to control the jury selection process to make effective use of court resources and ensure fairness to all parties is well-recognized ... . That authority does not, however, extend to orders that contradict the requirements of the Criminal Code." - See paragraph 38.

Criminal Law - Topic 4316

Procedure - Jury - Challenges for cause - The Ontario Court of Appeal discussed the use of "static" triers under ss. 640(2.1) and 640(2.2) of the Criminal Code - The court held that the trial judge erred in using static triers where the accused had not made an application under s. 640(2.1) - Absent that application, static triers could not be used in the challenge for cause process - The trial judge's decision to use static triers despite the requirement in s. 640(2) that rotating triers be used, could not be justified as an exercise of the trial judge's inherent jurisdiction - In this case, "the trial judge's order denied the appellants the benefits of using rotating triers to determine the challenges for cause made by the appellants. Equally important, the denial of the benefit of rotating triers occurred in the face of clear statutory language providing that only the accused could bring the motion necessary to the use of static triers. Finally, the denial occurred despite the express and repeated insistence of the appellants that rotating triers be used. These factors combined to create the appearance of unfairness and compromised the due administration of justice." - The court ordered a new trial on the charge of second degree murder - See paragraphs 24 to 87.

Criminal Law - Topic 4322.5

Procedure - Jury - General - Triers - General - [See Criminal Law - Topic 4316 ].

Criminal Law - Topic 4342

Procedure - Jury - Evidence - Questions by jury - The appellants (Sheridan and Noureddine) appealed their convictions for second degree murder - In his closing argument, Crown counsel referred, at some length, to the evidence of three accomplices - Using a chart as an aid to his argument, counsel attempted to demonstrate the many consistencies among the evidence of the three accomplices - In his closing argument, Noureddine's counsel used the same chart to attempt to demonstrate the many material inconsistencies in the three accomplices' evidence - During the deliberations, the jury asked to "[h]ear again the transcript of the Crown's review point by point of the evidence chart, and counsel for Noureddine's comments on the evidence chart, or to see the evidence chart on the monitors again." - The Ontario Court of Appeal stated that both the Crown and Noureddine's counsel agreed that the jury was entitled to an answer to the question - They also appeared to agree that the jury wanted to rehear both counsel's submissions as they related to the "evidence chart" - Sheridan's counsel took the position that neither the "evidence chart", nor any portions of the address of the Crown or counsel for Noureddine should be provided to the jury in response to the questions - The trial judge held that Sheridan's counsel's position effectively foreclosed giving the jury any assistance in recalling the arguments of Crown counsel and counsel for Noureddine - He told the jury: "You have requested the Crown's evidence chart and Mr. Noureddine's comments on the evidence chart. This relates to matters that do not constitute evidence at trial, but only commented upon during the jury addresses. So that I could comply with your request, if all counsel were to accede to it. Unfortunately not all counsel were agreed. Thank you." - The court held that the trial judge's answer to the jury's question was wrong in law and potentially prejudicial to Noureddine - See paragraphs 101 to 111.

Criminal Law - Topic 4944

Appeals - Indictable offences - New trials - When available - General - The appellants were acquitted of first degree murder and convicted of second degree murder - They appealed their convictions for second degree murder - The Ontario Court of Appeal allowed the appeal and ordered a new trial on the second degree murder charges, holding that the trial judge erred in using static triers on a challenge for cause - The court rejected the Crown's argument that, if the error in the jury selection rendered the court improperly constituted to try the appellants, then the acquittals could not stand - There were two reasons for this - First, if an accused appealed from conviction on an included offence, the court could not set aside the acquittal returned on the main charge absent an appeal by the Crown from that acquittal - Section 686(8) of the Criminal Code, which allowed the court to make orders ancillary to an order allowing an appeal from conviction if "justice requires", did not extend to an order setting aside an acquittal returned on the merits on a related charge at the same trial - Section 676(2) gave the Crown a right of appeal on the main charge even if there was a conviction on the included offence - It followed that the acquittal on the main charge was not put in issue when an accused exercised his right to appeal a conviction returned on the included offence - Second, case law indicted that only the party whose interest was adversely affected by the error made in the jury selection process could rely on that error to set aside a verdict returned by the jury - The failure to use rotating triers to decide the challenge for cause as required by the Criminal Code denied the appellants the right to use rotating triers - The failure to use rotating triers had no impact on any of the Crown's rights in the jury selection process, or in the manner in which the Crown proceeded during that process - The Crown did not initiate the challenge for cause process, did not challenge any jurors for cause, and was for all intents and purposes a bystander throughout that process - The improper use of static triers rendered the conviction on the charge of second degree murder voidable at the instance of the accused but had no impact on the acquittals returned on the main charge of first degree murder - See paragraphs 69 to 87.

Criminal Law - Topic 4963

Appeals - Indictable offences - New trials - Grounds - Lack of appearance of justice - [See Criminal Law - Topic 4316 ].

Criminal Law - Topic 4983

Appeals - Indictable offences - Powers of Court of Appeal - Power to make any order that justice requires - [See Criminal Law - Topic 4944 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 4342 ].

Cases Noticed:

R. v. Parks (C.) (1993), 65 O.A.C. 122; 84 C.C.C.(3d) 353 (C.A.), leave to appeal denied 175 N.R. 321 (S.C.C.), refd to. [para. 24].

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1, appld. [para. 24].

R. v. W.V., 2007 ONCA 546, refd to. [para. 35].

R. v. Swite (C.W.) (2011), 299 B.C.A.C. 168; 508 W.A.C. 168; 268 C.C.C.(3d) 184; 2011 BCCA 54, agreed with [para. 37].

R. v. Jasar, 2014 ONSC 7528, refd to. [para. 38, footnote 2].

R. v. Riley (T.) et al., [2009] O.J. No. 1851 (Sup. Ct.), refd to. [para. 38, footnote 2].

R. v. Sandham (2009), 248 C.C.C.(3d) 46 (Ont. Sup. Ct.), refd to. [para. 38, footnote 2].

R. v. White (O.) et al., [2009] O.T.C. Uned. J23 (Sup. Ct.), refd to. [para. 38, footnote 2].

R. v. Moore-McFarlane (G.C.) et al. (2001), 152 O.A.C. 120; 56 O.R.(3d) 737 (C.A.), refd to. [para. 38].

R. v. Rowbotham (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), appld. [para. 42].

R. v. Varga (1985), 7 O.A.C. 350; 18 C.C.C.(3d) 281 (C.A.), refd to. [para. 43].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 45].

R. v. Cloutier (1988), 27 O.A.C. 246; 43 C.C.C.(3d) 35 (C.A.), leave to appeal refused (1989), 104 N.R. 160; 37 O.A.C. 320; 50 C.C.C.(3d) vi (S.C.C.), refd to. [para. 48].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 49].

R. v. Simon (A.D.) (2010), 269 O.A.C. 359; 104 O.R.(3d) 340; 2010 ONCA 754, leave to appeal denied (2011), 422 N.R. 399 (S.C.C.) refd to. [para. 49].

R. v. Bain (1989), 31 O.A.C. 357; 47 C.C.C.(3d) 250 (C.A.), refd to. [para. 50].

R. v. Bain, [1992] 1 S.C.R. 91; 133 N.R. 1; 51 O.A.C. 161, refd to. [para. 51].

R. v. J.V. (2007), 222 O.A.C. 197; 219 C.C.C.(3d) 397 (C.A.), refd to. [para. 56].

R. v. Dwyer and Lauzon (1978), 42 C.C.C.(2d) 83 (Ont. C.A.), revd. (1979), 27 N.R. 488; 54 C.C.C.(3d) 246 (S.C.C.), refd. to. [para. 56].

R. v. Roy (M.) (2010), 295 B.C.A.C. 191; 501 W.A.C. 191; 2010 BCCA 448, refd to. [para. 57].

R. v. Katoch (A.) (2009), 253 O.A.C. 87; 246 C.C.C. (3d) 423 (C.A.), refd to. [para. 59].

R. v. A.B. (1997), 100 O.A.C. 81; 33 O.R.(3d) 321; 115 C.C.C.(3d) 421 (C.A.), refd to. [para. 59].

R. v. Cece (E.R.) et al. (2004), 190 O.A.C. 220; 72 O.R.(3d) 321 (C.A.), refd to. [para. 59].

R. v. Brown (R.) et al. (2005), 194 O.A.C. 372; 194 C.C.C.(3d) 76 (C.A.), refd to. [para. 60].

R. v. Kakegamic (J.O.) (2010), 272 O.A.C. 205; 265 C.C.C.(3d) 420; 2010 ONCA 903, refd to. [para. 60].

R. v. Sinclair (I.J.) (2013), 302 O.A.C. 185; 300 C.C.C.(3d) 69; 2013 ONCA 64, refd to. [para. 62].

R. v. Ashini (1989), 79 Nfld. & P.E.I.R. 318; 246 A.P.R. 318; 51 C.C.C.(3d) 329 (Nfld. C.A.), refd to. [para. 73].

Crane v. D.P.P., [1921] 2 A.C. 299, refd to. [para. 73].

R. v. Guillemette, [1986] 1 S.C.R. 356; 66 N.R. 19, refd to. [para. 73].

R. v. Bird (1952), 104 C.C.C. 286 (Ont. C.A.), refd to. [para. 73].

R. v. Sullivan and Lemay, [1991] 1 S.C.R. 489; 122 N.R. 166, refd to. [para. 73].

R. v. Sheridan, [2010] O.J. No. 4884 (Sup. Ct.), refd to. [para. 90].

R. v. Paquette, [1977] 2 S.C.R. 189; 11 N.R. 451, refd to. [para. 90].

R. v. Ryan (N.P.), [2013] 1 S.C.R. 14; 438 N.R. 80; 324 N.S.R.(2d) 205; 1029 A.P.R. 205; 2013 SCC 3, refd to. [para. 91].

R. v. Aravena (M.) et al. (2015), 333 O.A.C. 264; 2015 ONCA 250, refd to. [para. 91].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 640(2), sect. 640(2.1), sect. 640(2.2) [para. 33]; sect. 676(2) [para. 76]; sect. 686(8) [para. 75].

Counsel:

Victor Giourgas and Marco Sciarra, for the appellant, Chad Noureddine;

Michael Lacy and Sam Scratch, for the appellant, Richard Sheridan;

Roger Pinnock and Amy Alyea, for the respondent.

This appeal was heard on September 21 and 22, 2015, by Doherty, Laskin and Lauwers, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., delivered the following decision for the court on November 12, 2015.