R. v. P.B., 2015 ONCA 738

• Judge: Weiler, Watt and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 19, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 738;(2015), 341 O.A.C. 100 (CA)

R. v. P.B. (2015), 341 O.A.C. 100 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. NO.008

Her Majesty the Queen (respondent) v. P.B. (appellant)

(C52829; 2015 ONCA 738)

Indexed As: R. v. P.B.

Ontario Court of Appeal

Weiler, Watt and Epstein, JJ.A.

November 3, 2015.

Summary:

The accused, SB and MS were each involved in the death of the victim. SB pleaded guilty to criminal negligence causing death. MS pleaded guilty to second degree murder. SB and MS testified for the Crown at the accused's trial. A jury found the accused guilty of first degree murder, arson and rendering an indignity to the victim's body. The accused appealed, arguing that the trial judge erred in failing to order production of psychological records pertaining to SB, and in his instructions to the jury on issues involving the assessment of evidence given at trial.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See third Criminal Law - Topic 5372 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [See third Criminal Law - Topic 5372 ].

Criminal Law - Topic 4336.7

Procedure - Jury - The law - Court initiated visual aids (incl. charge, notes, decision tree, etc.) - The Ontario Court of Appeal stated that "A decision tree is not a jury instruction. It is a deliberation aid that assists jurors in organizing their deliberations in the same sequence as the step-directions provided in the charge. The questions posed in the charge and those depicted in the decision tree are the same. The charge also makes it clear that the burden of proving the element referred to in each question rests upon the Crown and the standard of proof required for each is proof beyond a reasonable doubt." - See paragraphs 142 and 143.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The Ontario Court of Appeal stated that "No presumption of honesty or truthfulness accompanies the witness to the witness box." - Although the trial judge in this case was wrong to instruct the jury that there was a presumption of truthfulness or honesty among witnesses, the balance of his instruction focused correctly on the credibility of the witnesses and the reliability of their evidence - A few words at the beginning of a sentence about a presumption of honesty would be long forgotten in the face of a protracted discussion of the lies told by those whose testimony was central to the demonstration of guilty and whose honesty was under attack - See paragraphs 137 and 153.

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, SB and MS were each involved in the death of the victim - SB pleaded guilty to criminal negligence causing death and MS pleaded guilty to second degree murder - SB and MS testified for the Crown at the accused's trial - A jury found the accused guilty of, inter alia, first degree murder - The accused appealed, arguing that the trial judge's Vetrovec caution was inadequate - The Ontario Court of Appeal dismissed the appeal - The language used and the nature and strength of the warning were matters within the discretion of the trial judge and were entitled to substantial deference - The instructions contained the essential ingredients identified by the authorities - In assessing the adequacy of the caution, the context of the evidence as a whole and the trial itself were also important - Where the central focus of the trial and counsel's submissions was the credibility of SB and MS and the reliability of their evidence, the jury could not have failed to appreciate the need for careful scrutiny of their testimony - See paragraphs 144 to 151.

Criminal Law - Topic 4375.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding exculpatory statements by accused - [See Criminal Law - Topic 4399.1 ].

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See both Criminal Law - Topic 4354 ].

Criminal Law - Topic 4399.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding false statements by accused - The accused's house burned in a fire - A dead woman was found in the basement - The accused made exculpatory statements to his insurance company and the police - He was subsequently arrested - The Crown tendered the exculpatory statements as part of its case-in-chief and sought to establish that they were fabricated to divert or deflect suspicion from the accused in the unlawful killing of the deceased - A jury found the accused guilty of, inter alia, first degree murder and arson - The accused appealed, arguing that the trial judge erred in his instruction of how the jury could use evidence of a fabricated statement to support an inference of guilt - The Ontario Court of Appeal dismissed the appeal - Read as a whole, the instructions did not whittle down the requirement that the jury find that any exculpatory statements that they disbelieved were fabricated before they could use the evidence in finding that guilt was established - See paragraphs 175 to 181.

Criminal Law - Topic 5039

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Effect of error by trial judge - General - [See first Criminal Law - Topic 4354 and second Criminal Law - Topic 5372 ].

Criminal Law - Topic 5202

Evidence and witnesses - General - Admissibility - Whether relevant and material - [See second Criminal Law - Topic 5372 ].

Criminal Law - Topic 5313

Evidence and witnesses - Inferences - Of consciousness of guilt - From falsehoods - [See Criminal Law - Topic 4399.1 ].

Criminal Law - Topic 5366

Evidence and witnesses - Documents and reports - Psychiatric or counselling records - [See all Criminal Law - Topic 5372 ].

Criminal Law - Topic 5372

Evidence and witnesses - Documents and reports - Documents in possession of third parties - The accused and SB were each involved in the death of the victim - SB pleaded guilty to criminal negligence causing death and was imprisoned - She saw a psychologist while in prison - SB testified for the Crown at the accused's trial - The accused applied for the production of SB's psychological records which were in the possession of the Correctional Service of Canada - The Ontario Court of Appeal discussed the principles applicable to such an application - See paragraphs 75 to 87.

Criminal Law - Topic 5372

Evidence and witnesses - Documents and reports - Documents in possession of third parties - The accused and SB were each involved in the death of the victim - SB pleaded guilty to criminal negligence causing death and was imprisoned - She saw a psychologist while in prison - SB testified for the Crown at the accused's trial - The accused applied for the production of SB's psychological records - He proposed to use the records to challenge SB's claim that she had told the jury the whole truth - The trial judge rejected the application - A jury found the accused guilty of, inter alia, first degree murder - The accused appealed, arguing that the trial judge erred in failing to find that the psychological records were "likely relevant" - The Ontario Court of Appeal agreed - The trial judge erred by (1) treating as dispositive SB's own assertion that what she told the psychologist and what she said at trial were the same thing; (2) considering the confidential nature of the relationship between SB and the psychologist as a basis upon which to deny likely relevance; (3) placing undue emphasis on the records' lack of reliability based on the absence of any obligation to record statements accurately or completely, or have them verified by the author; (4) intermingling or confusing the concepts of expectation of privacy and likely relevance; and (5) failing to consider that SB acknowledged that she spoke to the psychologist about the offence - See paragraphs 89 to 103.

Criminal Law - Topic 5372

Evidence and witnesses - Documents and reports - Documents in possession of third parties - The accused and SB were each involved in the death of the victim - SB pleaded guilty to criminal negligence causing death and was imprisoned - She saw a psychologist while in prison - SB testified for the Crown at the accused's trial - The accused applied for the production of SB's psychological records - He proposed to use the records to challenge SB's claim that she had told the jury the whole truth - The trial judge rejected the application - A jury found the accused guilty of, inter alia, first degree murder - The accused appealed, arguing that the trial judge erred in failing to find that the psychological records were "likely relevant" - The Ontario Court of Appeal dismissed the appeal - Although the trial judge did err as suggested by the accused, the error had no impact on the accused's conviction - Production of the records would not have furthered the accused's ability to make full answer and defence considering that a prominent feature of SB's lengthy cross-examination was her impeachment by pointing to inconsistencies between her trial testimony and statements she made to investigators and at the preliminary inquiry - The records contained only a casual reference to the offence in summary form and afforded no basis for cross-examination under the Canada Evidence Act - It was also relevant that the records originated in a therapeutic context and as such were inherently unreliable - See paragraphs 104 to 112.

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - [See second Criminal Law - Topic 4354 ].

Criminal Law - Topic 5520

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Testimony of convicted accomplice - [See second Criminal Law - Topic 4354 ].

Cases Noticed:

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, consd. [para. 75].

R. v. McNeil (L.), [2009] 1 S.C.R. 66; 383 N.R. 1; 246 O.A.C. 154; 2009 SCC 3, refd to. [para. 77].

R. v. Major (J.) et al. (2004), 188 O.A.C. 159; 186 C.C.C.(3d) 513 (C.A.), refd to. [para. 78].

R. v. W.B. (2000), 134 O.A.C. 1; 49 O.R.(3d) 321 (C.A.), refd to. [para. 82].

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. 128].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 128].

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, refd to. [para. 129].

John v. R., [1971] S.C.R. 781, refd to. [para. 129].

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. 129].

R. v. Royz (E.), [2009] 1 S.C.R. 423; 388 N.R. 1; 251 O.A.C. 397; 2009 SCC 13, refd to. [para. 130].

R. v. Harriott (A.) (2002), 168 O.A.C. 342; 58 O.R.(3d) 1; 161 C.C.C.(3d) 481 (C.A.), refd to. [para. 133].

R. v. Winmill (T.E.) (1999), 116 O.A.C. 201; 131 C.C.C.(3d) 380 (C.A.), refd to. [para. 133].

R. v. Crick (G.) (2005), 197 O.A.C. 33 (C.A.), refd to. [para. 133].

R. v. Rochon (J.) (2003), 171 O.A.C. 64; 173 C.C.C.(3d) 321 (C.A.), refd to. [para. 133].

R. v. Zebedee (J.) et al. (2006), 212 O.A.C. 23; 81 O.R.(3d) 583 (C.A.), refd to. [para. 134].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 134].

R. v. Saleh (F.) (2013), 314 O.A.C. 60; 303 C.C.C.(3d) 431; 2013 ONCA 742, refd to. [para. 136].

R. v. Linklater (R.) (2009), 246 O.A.C. 303; 2009 ONCA 172, refd to. [para. 136].

R. v. Luciano (M.) (2011), 273 O.A.C. 273; 267 C.C.C.(3d) 16; 2011 ONCA 89, refd to. [para. 137].

R. v. Thain (C.) (2009), 247 O.A.C. 55; 243 C.C.C.(3d) 230 (C.A.), refd to. [para. 137].

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 140].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 181, refd to. [para. 141].

R. v. Ménard (S.), [1998] 2 S.C.R. 109; 228 N.R. 100; 111 O.A.C. 1, refd to. [para. 141].

R. v. Sparvier (G.C.) (2006), 289 Sask.R. 79; 382 W.A.C. 79; 215 C.C.C.(3d) 555; 2006 SKCA 139, refd to. [para. 143].

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. 166].

R. v. Coutts (S.) et al. (1998), 110 O.A.C. 353; 40 O.R.(3d) 198 (C.A.), refd to. [para. 167].

R. v. O'Connor (P.) (2002), 166 O.A.C. 202; 62 O.R.(3d) 263 (C.A.), refd to. [para. 167].

R. v. Huard (S.G.) (2013), 311 O.A.C. 181; 302 C.C.C.(3d) 469; 2013 ONCA 650, refd to. [para. 184].

R. v. Largie (G.) et al. (2010), 266 O.A.C. 103; 101 O.R.(3d) 561; 2010 ONCA 548, refd to. [para. 184].

R. v. Baltovich (R.) (2004), 192 O.A.C. 366; 73 O.R.(3d) 481 (C.A.), refd to. [para. 184].

Counsel:

John Norris and Meara Conway, for the appellant;

Roger A. Pinnock and Sean Doyle, for the respondent.

This appeal was heard on January 19, 2015, before Weiler, Watt and Epstein, JJ.A., of the Ontario Court of Appeal. Watt, J.A., delivered the following judgment for the court on November 3, 2015.