R. v. Parris (A.) et al., 2013 ONCA 515

• Judge: Sharpe, Watt and Hoy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 20, 2013
• Jurisdiction: Ontario
• Citations: 2013 ONCA 515;(2013), 309 O.A.C. 289 (CA)

R. v. Parris (A.) (2013), 309 O.A.C. 289 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. AU.010

Her Majesty the Queen (respondent) v. Andrae Parris and Cleavon Joseph (appellants)

(C52524; C53315; 2013 ONCA 515)

Indexed As: R. v. Parris (A.) et al.

Ontario Court of Appeal

Sharpe, Watt and Hoy, JJ.A.

August 12, 2013.

Summary:

A jury convicted the two accused of first degree murder. They appealed, seeking a new trial. They said that the trial judge left things out or said things that were wrong when she explained to the jury what the Crown had to prove to establish guilt, and how they were to assess the evidence in arriving at their verdict.

The Ontario Court of Appeal dismissed the appeal. The judge's instructions were adequate to the task the law set for trial judges: proper, but not perfect.

Criminal Law - Topic 1271

Offences against person and reputation - Murder - Murder during commission of other offences - General principles - A jury convicted the appellants (Parris and Joseph) of first degree murder in Malcolm's death - Malcolm was killed in Teitsson's home - Earlier that night, Malcolm had skipped out of the back door of his own residence without paying for the $30 worth of crack cocaine that Parris had just sold him at the front door - The trial judge instructed the jury that they could find each appellant guilty of first degree murder on the basis that the murder was planned and deliberate or was committed while the appellants were unlawfully confining Malcolm, or in Parris' case, attempting to unlawfully confine Teitsson - On appeal, the appellants submitted that the trial judge erred by misdirecting the jury on the elements of constructive first degree murder under s. 231(5)(e) of the Criminal Code - The Ontario Court of Appeal dismissed the appeal - The court rejected the submission that the trial judge did not make it sufficiently clear to the jury that the unlawful confinement and the murder had to be distinct acts - See paragraphs 55 to 58.

Criminal Law - Topic 1271

Offences against person and reputation - Murder - Murder during commission of other offences - General principles - A jury convicted the appellants (Parris and Joseph) of first degree murder in Malcolm's death - Malcolm was killed in Teitsson's home - Earlier that night, Malcolm had skipped out of the back door of his own residence without paying for the $30 worth of crack cocaine that Parris had just sold him at the front door - The trial judge instructed the jury that they could find each appellant guilty of first degree murder on the basis that the murder was planned and deliberate or was committed while the appellants were unlawfully confining Malcolm, or in Parris' case, attempting to unlawfully confine Teitsson - The trial judge had explained to the jury that unlawful confinement was "an unlawful restriction on liberty for some period of time" - On appeal, the appellants submitted that the trial judge should have told the jury that the unlawful confinement had to extend for a "significant" period of time to engage the provision - The Ontario Court of Appeal of Appeal rejected the submission - See paragraphs 59 to 61.

Criminal Law - Topic 1271

Offences against person and reputation - Murder - Murder during commission of other offences - General principles - A jury convicted the appellants (Parris and Joseph) of first degree murder in Malcolm's death - Malcolm was killed in Teitsson's home - Earlier that night, Malcolm had skipped out of the back door of his own residence without paying for the $30 worth of crack cocaine that Parris had just sold him at the front door - The trial judge instructed the jury that they could find each appellant guilty of first degree murder on the basis that the murder was planned and deliberate or was committed while the appellants were unlawfully confining Malcolm, or in Parris' case, attempting to unlawfully confine Teitsson - On appeal, the appellants submitted that the trial judge erred by misdirecting the jury on the elements of constructive first degree murder under s. 231(5)(e) of the Criminal Code - The Ontario Court of Appeal dismissed the appeal - The court rejected the submission that the trial judge did not make it sufficiently clear to the jury that the unlawful confinement and the murder had to be distinct acts - The court stated that "Section 231(5)(e) is not limited to cases in which the victim of the murder and the victim of the predicate offence are the same ... The section requires only that the accused has killed someone, 'while committing or attempting to commit' a predicate offence. Provided the killing is closely connected, temporally and causally, with an enumerated predicate offence, the section may be engaged ..." - See paragraph 66.

Criminal Law - Topic 1272

Murder - Murder during commission of other offences - Elements of offence - The two accused appealed their convictions for first degree murder, seeking a new trial - They submitted that the trial judge erred by misdirecting the jury on the elements of constructive first degree murder under s. 231(5)(e) of the Criminal Code - The Ontario Court of Appeal stated that "the essential elements of constructive first degree murder under s. 231(5)(e) may be summarized as the i. predicate offence; ii. murder; iii. substantial cause; iv. no intervening act; and v. same transaction" - See paragraph 45.

Criminal Law - Topic 1278

Murder - During commission of other offences - Jury charge - [See all Criminal Law - Topic 1271 ].

Criminal Law - Topic 1278

Murder - During commission of other offences - Jury charge - A jury convicted the appellants (Parris and Joseph) of first degree murder in Malcolm's death - Malcolm was killed in the basement of Teitsson's home - Earlier that night, Malcolm had skipped out of the back door of his own residence without paying for the $30 worth of crack cocaine that Parris had just sold him at the front door - The trial judge instructed the jury that they could find each appellant guilty of first degree murder on the basis that the murder was planned and deliberate or was committed while the appellants were unlawfully confining Malcolm, or in Parris' case, attempting to unlawfully confine Teitsson - On appeal, the appellants submitted that the trial judge erred by misdirecting the jury on the elements of constructive first degree murder under s. 231(5)(e) of the Criminal Code - The Ontario Court of Appeal rejected Parris' specific submissions about the trial judge's failure to relate the evidence to the issue of Parris' participation in the killing or the inclusion of the unlawful confinement of Teitsson as a predicate offence in relation to Parris - Joseph had admitted to stabbing Malcolm, but raised issues of accident, self-defence and defence of another (Parris) - Parris acknowledged no part in the stabbing and said he was elsewhere in the house when Joseph killed Malcolm - The Crown's position was that the appellants were jointly involved in the killing - Throughout her final instructions, the trial judge made it clear that neither appellant was to be convicted unless the essential elements of the offence were proven in relation to that appellant - She reminded the jury that Parris testified that he left the basement as soon as he extricated Joseph from Malcolm's clutches - He did not see or use a knife - No further elaboration was required to ensure that the jury understood Parris' defence - See paragraphs 62 to 67.

Criminal Law - Topic 1278

Murder - During commission of other offences - Jury charge - A jury convicted the appellants (Parris and Joseph) of first degree murder in Malcolm's death - Malcolm was killed in Teitsson's home - Earlier that night, Malcolm had skipped out of the back door of his own residence without paying for the $30 worth of crack cocaine that Parris had just sold him at the front door - The trial judge instructed the jury that they could find each appellant guilty of first degree murder on the basis that the murder was planned and deliberate or was committed while the appellants were unlawfully confining Malcolm, or in Parris' case, attempting to unlawfully confine Teitsson - The appellants appealed, seeking a new trial - The Ontario Court of Appeal dismissed the appeal - The trial judge's instructions were adequate to the task the law set for trial judges: proper, but not perfect.

Criminal Law - Topic 1299

Murder - Defences - Jury charge - A jury convicted the appellants (Parris and Joseph) of first degree murder in Malcolm's death - Malcolm was killed in Teitsson's home - Earlier that night, Malcolm had skipped out of the back door of his own residence without paying for the $30 worth of crack cocaine that Parris had just sold him at the front door - The trial judge instructed the jury that they could find each appellant guilty of first degree murder on the basis that the murder was planned and deliberate or was committed while the appellants were unlawfully confining Malcolm, or in Parris' case, attempting to unlawfully confine Teitsson - The appellants appealed - Joseph submitted that the trial judge should have left the defence of accident to the jury in the event that it rejected his defences of self-defence and defence of another - The Ontario Court of Appeal rejected the submission - The defence of accident did not meet the air of reality threshold - Alternatively, the failure to leave accident in the sense of unintentional conduct, to the jury caused neither Joseph nor Parris any substantial wrong or miscarriage of justice - Malcolm was stabbed six times - Four wounds penetrated his chest to a significant depth - He was beaten - The jury found that Joseph intended to kill Malcolm and might even have planned and deliberated his murder - Trial counsel did not object to the omission, one that was inconsistent with Joseph's abortive s. 606(4) plea of guilty to second degree murder - See paragraphs 98 to 112.

Criminal Law - Topic 1300

Offences against person and reputation - Murder - Defences - Accident - [See Criminal Law - Topic 1299 ].

Criminal Law - Topic 1450.5

Unlawful confinement, imprisonment or forcible seizure - Jury charge - [See all Criminal Law - Topic 1271 ].

Criminal Law - Topic 4232

Procedure - Pleas - Guilty plea to included offence - Effect of where not accepted - A jury convicted the appellants (Parris and Joseph) of first degree murder in Malcolm's death - Malcolm was killed in Teitsson's home - Earlier that night, Malcolm had skipped out of the back door of his own residence without paying for the $30 worth of crack cocaine that Parris had just sold him at the front door - The trial judge instructed the jury that they could find each appellant guilty of first degree murder on the basis that the murder was planned and deliberate or was committed while the appellants were unlawfully confining Malcolm, or in Parris' case, attempting to unlawfully confine Teitsson - The appellants appealed - At issue, inter alia, was the evidentiary value, if any, to be assigned to Joseph's plea of guilty to second degree murder under s. 606(4) of the Criminal Code when arraigned on first degree murder - The plea had not been accepted because the Crown refused to consent - The Ontario Court of Appeal discussed the law regarding unaccepted s. 606(4) guilty pleas - The court held that the trial judge did not err on this issue - She entered a plea of not guilty and instructed the jury in unexceptional terms about the evidentiary value of the plea as an admission - The admission was not left as dispositive of Joseph's guilt of the lesser offence, but only as an item of evidence for the jury to consider - The instruction was appropriate in this case - See paragraphs 113 to 126.

Criminal Law - Topic 4350

Procedure - Charge or directions - Jury or judge alone - General - [See third Criminal Law - Topic 1278 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - A jury convicted the appellants (Parris and Joseph) of first degree murder in Malcolm's death - Malcolm was killed in the basement of Teitsson's home - Earlier that night, Malcolm had skipped out of the back door of his own residence without paying for the $30 worth of crack cocaine that Parris had just sold him at the front door - The trial judge instructed the jury that they could find each appellant guilty of first degree murder on the basis that the murder was planned and deliberate or was committed while the appellants were unlawfully confining Malcolm, or in Parris' case, attempting to unlawfully confine Teitsson - On appeal, the appellants submitted that the trial judge erred in instructing the jury on the principles of reasonable doubt as applied to their credibility - The Ontario Court of Appeal held that the trial judge erred in her instruction of the first stage of D.W. when she suggested that the jury had to believe both appellants to acquit either - However, on a functional approach to the instructions as a whole, the court was satisfied that the erroneous coupling of the appellants' testimony in the D.W. instruction caused no substantial wrong or miscarriage of justice to either appellant - Further, while not fatal, it was of some significance that neither appellants' trial counsel had objected to the charge on this ground - See paragraphs 68 to 83.

Criminal Law - Topic 4354.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding plea of accused - [See Criminal Law - Topic 4232 ].

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - [See second Criminal Law - Topic 1278 ].

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for the first time on appeal - [See Criminal Law - Topic 1299 and Criminal Law - Topic 4351 ].

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where directions or jury charge incomplete or in error - [See Criminal Law - Topic 1299 and Criminal Law - Topic 4351 ].

Criminal Law - Topic 5259

Evidence and witnesses - Admissions - What constitute - [See Criminal Law - Topic 4232 ].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - A jury convicted the appellants (Parris and Joseph) of first degree murder in Malcolm's death - Malcolm was killed in Teitsson's home - Earlier that night, Malcolm had skipped out of the back door of his own residence without paying for the $30 worth of crack cocaine that Parris had just sold him at the front door - The trial judge instructed the jury that they could find each appellant guilty of first degree murder on the basis that the murder was planned and deliberate or was committed while the appellants were unlawfully confining Malcolm, or in Parris' case, attempting to unlawfully confine Teitsson - On appeal, the appellants took issue with the adequacy of the trial judge's Vetrovec caution with respect to three witnesses (including Teitsson) who were called by the Crown, but gave some evidence beneficial to the appellants - The Ontario Court of Appeal discussed the law related to Vetrovec cautions - The court held that the caution was sufficient in this case - See paragraphs 84 to 97.

Cases Noticed:

R. v. Harbottle (J.), [1993] 3 S.C.R. 306; 157 N.R. 349; 66 O.A.C. 35, refd to. [para. 44].

R. v. Luxton, [1990] 2 S.C.R. 711; 112 N.R. 193; 111 A.R. 161, refd to. [para. 46].

R. v. Pritchard (D.M.), [2008] 3 S.C.R. 195; 381 N.R. 67; 261 B.C.A.C. 1; 440 W.A.C. 1; 2008 SCC 59, refd to. [para. 46].

R. v. Kimberley (C.M.) et al. (2001), 151 O.A.C. 42; 56 O.R.(3d) 18 (C.A.), refd to. [para. 47].

R. v. Nette (D.M.), [2001] 3 S.C.R. 488; 277 N.R. 301; 158 B.C.A.C. 98; 258 W.A.C. 98; 2001 SCC 78, refd to. [para. 48].

R. v. Ferrari (P.) (2012), 295 O.A.C. 9; 287 C.C.C.(3d) 503; 2012 ONCA 399, refd to. [para. 48].

R. v. Stevens (1984), 2 O.A.C. 239; 11 C.C.C.(3d) 518 (C.A.), refd to. [para. 50].

R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. 1; 45 D.L.R.(4th) 546, refd to. [para. 51].

R. v. Russell (D.), [2001] 2 S.C.R. 804; 274 N.R. 247; 150 O.A.C. 99; 2001 SCC 53, refd to. [para. 51].

R. v. Johnson (J.) (2002), 161 O.A.C. 153; 166 C.C.C.(3d) 44 (C.A.), refd to. [para. 53].

R. v. Almarales (A.) (2008), 244 O.A.C. 127; 237 C.C.C.(3d) 148; 2008 ONCA 692, refd to. [para. 54].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 74].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 74].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 75].

R. v. Hoohing, 2007 ONCA 577, refd to. [para. 76].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 84].

R. v. Trudel - see R. v. Sauvé (J.) et al.

R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), refd to. [para. 90].

R. v. Jones (W.B.) (2001), 146 O.A.C. 118 (C.A.), refd to. [para. 90].

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. 91].

R. v. Roks (A.) (2011), 281 O.A.C. 235; 274 C.C.C. (3d) 1; 2011 ONCA 526, refd to. [para. 92].

R. v. Winmill (T.E.) (1999), 116 O.A.C. 201; 131 C.C.C.(3d) 380; 42 O.R.(3d) 582 (C.A.), refd to. [para. 93].

R. v. Mathisen (P.J.) (2008), 242 O.A.C. 139; 239 C.C.C.(3d) 63; 2008 ONCA 747 (C.A.), refd to. [para. 106].

R. v. Tennant and Naccarato (1975), 23 C.C.C.(2d) 80 (Ont. C.A.), refd to. [para. 108].

R. v. R.T. (1992), 58 O.A.C. 81; 10 O.R.(3d) 514 (C.A.), refd to. [para. 121].

R. v. Dobson (1985), 7 O.A.C. 145; 19 C.C.C.(3d) 93 (C.A.), refd to. [para. 123].

R. v. Pentiluk and MacDonald (1974), 21 C.C.C.(2d) 87 (Ont. C.A.), refd to. [para. 123].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 231(5)(e) [para. 28]; sect. 606(4) [para. 122].

Counsel:

Joseph Di Luca and Erin Dann, for the appellant, Andrae Parris;

Gregory Lafontaine, for the appellant, Cleavon Joseph;

David Lepofsky, for the respondent.

This appeal was heard on March 20, 2013, by Sharpe, Watt and Hoy, JJ.A., of the Ontario Court of Appeal. Watt, J.A., delivered the following decision for the court on August 12, 2013.