R. v. Pasqua (N.R.), (2009) 457 A.R. 358 (CA)

• Judge: Paperny, Ritter and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 05, 2009
• Citations: (2009), 457 A.R. 358 (CA);2009 ABCA 247

R. v. Pasqua (N.R.) (2009), 457 A.R. 358 (CA);

      457 W.A.C. 358

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JL.008

Her Majesty the Queen (respondent) v. Natalie Rochelle Pasqua (appellant)

(0801-0071-A; 2009 ABCA 247)

Indexed As: R. v. Pasqua (N.R.)

Alberta Court of Appeal

Paperny, Ritter and Rowbotham, JJ.A.

June 29, 2009.

Summary:

The accused appealed her conviction of second degree murder.

The Alberta Court of Appeal allowed the appeal and ordered a new trial.

Criminal Law - Topic 4357

Procedure - Charges or directions - Jury or judge alone - Directions regarding defences and theory of the defence - The accused and the victim engaged in a drug deal, which quickly went awry - They struggled on the train platform - A train pulled alongside the platform, the victim was pushed against it and fell between two moving carriages - He was crushed between a train carriage and the platform and died almost immediately - The accused was convicted of second degree murder - She appealed, asserting that the trial judge failed to fairly relate the evidence to the defence of accident - The trial judge effectively undermined the defence of accident by failing to review key evidence for the jury - The Alberta Court of Appeal allowed the appeal - This was a complex jury charge and the trial judge found it necessary to repeat the evidence on several occasions - However, in his discussion of the defence of accident, he brought to the jury's attention the alleged statement, "Do you want to get hit by a train?" - In instructing the jury with respect to accident, the trial judge ought to have reminded the jury that the accused denied making the statement and that other bystanders did not hear it - Further, in his instructions regarding accident, the trial judge did not draw the jury's attention to the accused's testimony that she did not mean to kill the victim, she did not realize that a train was that close until she and the victim were struck by it, she could not see where she was pushing or pulling the victim at the material time because he was pulling her hair and that the distance between the train cars was about one meter - When reviewed as a whole, the trial judge's instruction to the jury on the defence of accident, was primarily a repetition of the evidence in support of the Crown's position - He did not include references to evidence which would have supported the defence theory - The trial judge's instruction in this regard was in error - See paragraphs 30 to 41.

Criminal Law - Topic 4357

Procedure - Charges or directions - Jury or judge alone - Directions regarding defences and theory of the defence - The accused and the victim engaged in a drug deal, which quickly went awry - They struggled on the train platform - The accused fell or was pushed off the platform onto the tracks - She remounted the platform and the struggle resumed - A train pulled alongside the platform, the victim was pushed against it and fell between two moving carriages - He was crushed between a train carriage and the platform and died almost immediately - The accused was convicted of second degree murder - She appealed, asserting that the trial judge failed to properly present the defence theory - The theory of the defence was that the deceased died as a result of an accident in the midst of a consensual fight - The accused's theory was that the event was one continuous fight - The Crown's theory was that there were two separate fights, delineated by the accused being pushed off the platform and then returning to the platform, and that the victim did not consent to the second fight - The Alberta Court of Appeal rejected this ground of appeal - The court stated that "the key issue was not whether there were one or two fights, but whether the victim consented to the fight and if at any point the consent was revoked or the scope of the fight went beyond the consent. Read as a whole, the trial judge's instructions were directed to the issue of the victim's consent throughout the altercations and there is no reviewable error" - See paragraphs 42 to 45.

Criminal Law - Topic 4370

Procedure - Charges or directions - Jury or judge alone - Directions regarding self-defence - The accused and the victim engaged in a drug deal, which quickly went awry - They struggled on the train platform - A train pulled alongside the platform, the victim was pushed against it and fell between two moving carriages - He was crushed between a train carriage and the platform and died almost immediately - The accused was convicted of second degree murder - She appealed, asserting that the trial judge erred in its charge on the issue of self-defence (Criminal Code, s. 37) - The trial judge concluded that there was no air of reality to the defence of self-defence as it related to the accused - The Crown requested that the trial judge instruct the jury on s. 37 in relation to the victim - The trial judge acceded to this request and when asked if he would include a similar instruction with respect to the accused, he refused to do so - The Alberta Court of Appeal allowed the appeal - The court stated that "s. 37 provides a defence to an accused person. It had no application to the victim and no relevance to the issue to which the trial judge directed it: whether the victim could have lawfully consented to a fight in which he received bodily harm. The trial judge erred in including this instruction. Not only did he deny the [accused] the use of the defence, he compounded the prejudice by including the instruction as it related to the victim" - See paragraph 46.

Criminal Law - Topic 5235

Evidence and witnesses - Rebuttal evidence - By Crown - The accused and the victim engaged in a drug deal, which quickly went awry - They struggled on the train platform - A train pulled alongside the platform, the victim was pushed against it and fell between two moving carriages - He was crushed between a train carriage and the platform and died almost immediately - The accused was convicted of second degree murder - She appealed, asserting that the trial judge erred by allowing rebuttal evidence on a purely collateral issue - During examination-in-chief, the accused testified that she offered to show the detective the injuries, which she said that she sustained from the fight with the victim, and that she asked the detective to take photos of those injuries (the injury evidence) - She also testified that the victim was pulling her hair immediately before she pushed him into the train - When cross-examined, she said that the detective told her that her eyelash was found under the victim's fingernails (the hair evidence) - The trial judge allowed the Crown to present rebuttal evidence on those two issues - The Alberta Court of Appeal allowed the appeal - The trial judge erred in admitting the rebuttal evidence - Neither the injury evidence, nor the hair evidence were determinative of the issue of whether the accused was the aggressor - Moreover, as regards the hair evidence, there was already direct testimony from the medical examiner that there was nothing found under the victim's fingernails - Rebuttal evidence should not be permitted when it merely confirmed or reinforced earlier evidence adduced by the Crown - The rebuttal evidence served only to impeach the accused's credibility, and the trial judge did not consider whether its probative value outweighed its prejudicial effect - The rebuttal evidence had a damaging effect on the accused's credibility, since it was the last piece of evidence the jury heard - Moreover, the Crown led evidence from the detective which was untrue and the Crown ought to have known that - This compounded the prejudice - The trial judge exercised his discretion in a manner which prejudiced the accused's case - See paragraphs 11 to 20.

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - The accused and the victim engaged in a drug deal, which quickly went awry - They struggled on the train platform - A train pulled alongside the platform, the victim was pushed against it and fell between two moving carriages - He was crushed between a train carriage and the platform and died almost immediately - The accused was convicted of second degree murder - She appealed, asserting that the trial judge erred by refusing to admit statements made by the accused to police where she said that "it was an accident" - The Alberta Court of Appeal allowed the appeal - The Crown had tendered rebuttal evidence which was intended to, or had the serious potential to, damage the accused's credibility - Moreover, the evidence was incorrect - The statements which the accused sought to adduce would have fairly reflected what transpired, set forth her view of the incident, and rebutted the Crown's subsequent suggestion of recent fabrication - The error in admitting the rebuttal evidence was serious, and was compounded by the trial judge's refusal to admit the statements - See paragraphs 21 to 27.

Cases Noticed:

R. v. Grandinetti (C.H.) (2003), 339 A.R. 52; 312 W.A.C. 52; 2003 ABCA 307, affd. [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 2005 SCC 5, refd to. [para. 8].

R. v. Anderson (W.R.) (2009), 448 A.R. 165; 447 W.A.C. 165; 2009 ABCA 67, refd to. [para. 9].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 10].

R. v. Rhee (D.G.), [2001] 3 S.C.R. 364; 275 N.R. 281; 157 B.C.A.C. 30; 256 W.A.C. 30, refd to. [para. 10].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 288 D.L.R.(4th) 1; 2007 SCC 53, refd to. [para. 10].

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; 143 D.L.R.(4th) 433, refd to. [para. 10].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 13].

R. v. Dyck (1969), 70 W.W.R.(N.S.) 449; 8 C.R.N.S. 191 (B.C.C.A.), refd to. [para. 13].

R. v. Krause, [1986] 2 S.C.R. 466; 71 N.R. 61; 33 D.L.R.(4th) 267, refd to. [para. 15].

R. v. Dalen (R.) (2008), 264 B.C.A.C. 54; 445 W.A.C. 54; 2008 BCCA 530, refd to. [para. 16].

R. v. Aalders, [1993] 2 S.C.R. 482; 154 N.R. 161; 55 Q.A.C. 161; 103 D.L.R.(4th) 700, refd to. [para. 16].

R. v. Paris (G.W.) et al. (2000), 138 O.A.C. 287; 48 W.C.B.(2d) 294 (C.A.), leave to appeal dismissed (2001), 276 N.R. 395; 152 O.A.C. 199 (S.C.C.), refd to. [para. 17].

R. v. Stirling (B.J.), [2008] 1 S.C.R. 272; 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62; 2008 SCC 10, refd to. [para. 22].

R. v. Evans (B.J.), [1993] 2 S.C.R. 629; 153 N.R. 212; 28 B.C.A.C. 81; 47 W.A.C. 81; 104 D.L.R.(4th) 200, refd to. [para. 22].

R. v. D.O.L. (1991), 73 Man.R.(2d) 238; 3 W.A.C. 238; 65 C.C.C.(3d) 465; 13 W.C.B.(2d) 412 (C.A.), revd. [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241, refd to. [para. 22].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293; 43 D.L.R.(4th) 641, refd to. [para. 22].

R. v. Kyselka, [1962] O.W.N. 160; 37 C.R. 391 (C.A.), refd to. [para. 22].

R. v. Graham, [1974] S.C.R. 206; 26 D.L.R.(3d) 579, refd to. [para. 22].

R. v. Simpson and Ochs, [1988] 1 S.C.R. 3; 81 N.R. 267; 46 D.L.R.(4th) 466, refd to. [para. 23].

R. v. Campbell (1977), 38 C.C.C.(2d) 6; 1 C.R.(3d) 309 (Ont. C.A.), refd to. [para. 23].

Azoulay v. R., [1952] 2 S.C.R. 495, refd to. [para. 35].

R. v. Linney, [1978] 1 S.C.R. 646; 13 N.R. 217, refd to. [para. 35].

R. v. Karaibrahimovic (J.J.) (2002), 303 A.R. 181; 273 W.A.C. 181; 2002 ABCA 102, refd to. [para. 36].

Authors and Works Noticed:

Der, Balfour Q.H., The Jury: A Handbook of Law and Procedure (1989) (2006 Looseleaf Update, Issue 23), p. 14-26 [para. 36].

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed.) (2009 Looseleaf Update), pp. 11-3 to 11-19 [para. 22]; 11-24 [para. 23]; 18-96 [para. 17].

Counsel:

C.J. Nowlin, for the appellant;

B.R. Graff, for the respondent.

This appeal was heard on May 5, 2009, by Paperny, Ritter and Rowbotham, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was filed on June 29, 2009.