R. v. Peavoy (D.M.), (1997) 101 O.A.C. 304 (CA)

• Judge: Doherty, Weiler and Moldaver, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Thursday July 10, 1997
• Jurisdiction: Ontario
• Citations: (1997), 101 O.A.C. 304 (CA);1997 CanLII 3028 (NS CA);1997 CanLII 3028 (ON CA);34 OR (3d) 620;117 CCC (3d) 226;9 CR (5th) 83;[1997] CarswellOnt 2689;[1997] OJ No 2788 (QL);101 OAC 304;35 WCB (2d) 375

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304 (CA)

MLB headnote and full text

Temp. Cite: [1997] O.A.C. TBEd. JL.011

Her Majesty the Queen (respondent) v. Daniel M. Peavoy (appellant)

(C20376)

Indexed As: R. v. Peavoy (D.M.)

Ontario Court of Appeal

Doherty, Weiler and Moldaver, JJ.A.

July 10, 1997.

Summary:

A jury convicted the accused of second degree murder. The accused appealed his conviction. At issue were, inter alia, (1) whether the Crown's address resulted in the accused not receiving a fair trial; (2) whether the trial judge erred in his charge in failing to link the defence of intoxication to the requisite intent for murder; (3) whether the trial judge properly charged the jury in relation to the accused's conduct fol­lowing the murder; and (4) whether the trial judge should have charged the jury on the issue of provocation.

The Ontario Court of Appeal allowed the appeal where (1) the trial judge failed to comment on the Crown's prejudicial remarks and (2) the trial judge did not properly charge the jury in relation to the accused's after-the-fact conduct.

Criminal Law - Topic 1285

Murder - Provocation - Jury charge - A jury convicted the accused of second degree murder - The accused had stabbed the victim following an argument - The accused argued that he had stabbed the victim in self-defence - The trial judge charged the jury on provocation, which was not argued by the accused - The accused appealed from conviction, alleg­ing that the trial judge's charge undermined the defence of self-defence - The Ontario Court of Appeal rejected this ground of appeal - A trial judge was required to leave every defence to the jury for which there was an air of reality on the evidence - The court was not persuaded that the trial judge's failure to explain to the jury that provocation was not advanced by the defence did not undermine the accused's primary defence to an appreciable extent - See paragraphs 36 to 37.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (re intent and drunkenness) - A jury convicted the accused of second degree murder - The trial judge had directed the jury that it could infer that a sane and sober person intended the consequences of his acts, but that intent should be determined in light of all the facts and circumstances, including the consumption of alcohol - The accused appealed his conviction, alleging that the trial judge erred because he did not instruct the jury that different consider­ations applied where there was evidence of intoxication - The Ontario Court of Appeal dismissed this ground of appeal - The jury understood that (1) it could only rely on the common sense inference after an assessment of all the evidence and (2) that the inference could not apply if the jury was left in any rea­sonable doubt about the accused's intention - See paragraphs 17 to 19.

Criminal Law - Topic 4388

Procedure - Jury charge - Directions re addresses by counsel - A jury convicted the accused of second degree murder - The accused appealed, alleging that the Crown misstated the evidence and made inappropriate com­ments in that the accused had tailored his evidence after receiving Crown disclosure - The Ontario Court of Appeal allowed the appeal - The court, having considered the Crown's address in its entirety, held that the tone and style was not a fair and dispassionate presenta­tion of its case - The Crown's remarks were prejudicial (mis­leading and bearing directly on central issues) to the degree that it was incumbent on the trial judge to comment and to ensure that the defence's position was fairly put to the jury - The trial judge's failure to make additional comments on the Crown's improper re­marks was an error of law - See para­graphs 4 to 16.

Criminal Law - Topic 4388

Procedure - Jury charge - Directions re addresses by counsel - [See first Crim­inal Law - Topic 5211].

Criminal Law - Topic 4419

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Intemperate or improper statements - A jury convicted the accused of second degree murder - On appeal, the accused argued that he had not received a fair trial because the Crown counsel had made inappropriate comments, namely that he had tailored his evidence after receiving Crown disclosure - The Ontario Court of Appeal held that the Crown counsel's submissions were improper and unfair in that its concoction theory was raised for the first time in his closing address - The accused had no opportunity to respond to the Crown's improper suggestion - Fur­thermore, the comments made a trap of the accused's constitutional right to disclosure and suggested that his evidence was inher­ently suspect because the defence was only disclosed during the accused's testi­mony - See paragraphs 10 to 15.

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - A jury convicted the accused of second degree murder - The accused argued that he had stabbed the victim in self-defence and, alternatively, that he had been too intoxi­cated to form the requisite intention - After the stabbing, the accused refused to surrender himself to the police - The Crown's erroneous suggestion that this evidence could assist in determining the level of culpability was not corrected by the trial judge - The Ontario Court of Appeal allowed the accused's appeal - The trial judge should have instructed the jury that the accused's after-the-fact conduct was only relevant to determine whether the Crown had proved beyond a reasonable doubt that (1) the accused committed a culpable homicide and did not act in self-defence and (2) that despite the accused's intoxication, he had the requisite intent for murder - See paragraphs 20 to 35.

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - The On­tario Court of Appeal reviewed the law as it related to the relevancy and permis­sible uses of an accused's after-the-fact conduct - The court also stated that the charac­terization of the conduct as evidence of "consciousness of guilt" isolated it from other circumstantial evidence - Hence, the use of more neutral terminology (i.e. after-the-fact conduct) was desirable - See paragraphs 20 to 35.

Evidence - Topic 2405

Special modes of proof - Presumptions - Specific presumptions - Conduct - Natu­ral consequences of - [See Criminal Law - Topic 1299].

Cases Noticed:

Boucher v. R., [1955] S.C.R. 16, refd to. [para. 15].

R. v. Michaud (F.), [1996] 2 S.C.R. 458; 198 N.R. 231; 178 N.B.R.(2d) 308; 454 A.P.R. 308; 107 C.C.C.(3d) 193, refd to. [para. 15].

R. v. Romeo, [1991] 1 S.C.R. 86; 119 N.R. 309; 110 N.B.R.(2d) 57; 276 A.P.R. 57; 62 C.C.C.(3d) 1, refd to. [para. 16].

R. v. Pisani (1970), 1 C.C.C.(3d) 477 (S.C.C.), refd to. [para. 16].

R. v. Seymour (J.), [1996] 2 S.C.R. 252; 197 N.R. 81; 76 B.C.A.C. 1; 125 W.A.C. 1; 106 C.C.C.(3d) 520, refd to. [para. 18].

R. v. White (R.G.) and Côté (Y.) (1996), 91 O.A.C. 321; 108 C.C.C.(3d) 1 (C.A.), leave to appeal granted [1997] S.C.C.A. No. 53, refd to. [para. 23].

R. v. Conway (S.) (1995), 26 W.C.B.(2d) 121 (Ont. C.A.), refd to. [para. 25].

R. v. Dunn (1990), 56 C.C.C.(3d) 538 (B.C.C.A.), refd to. [para. 27].

R. v. Tzimopoulos (1986), 17 O.A.C. 1; 29 C.C.C.(3d) 304 (C.A.), refd to. [para. 27].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 28].

R. v. Marinaro (G.) (1994), 76 O.A.C. 44; 95 C.C.C.(3d) 74 (C.A.), revd. [1996] 1 S.C.R. 462; 197 N.R. 21; 91 O.A.C. 117; 105 C.C.C.(3d) 95, refd to. [para. 29].

R. v. Wiltse (J.W.) and Yarema (M.W.) (1994), 72 O.A.C. 226; 19 O.R.(3d) 379 (C.A.), refd to. [para. 29].

R. v. Jenkins (E.) et al. (1996), 90 O.A.C. 263; 29 O.R.(3d) 30 (C.A.), refd to. [para. 31].

R. v. Carpenter (J.D.) (1993), 65 O.A.C. 220; 83 C.C.C.(3d) 193 (C.A.), refd to. [para. 31].

R. v. Mulligan (C.) (1997), 100 O.A.C. 324 (C.A.), refd to. [para. 31].

R. v. Jacquard (C.O.) (1997), 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161; 113 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 31].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417, refd to. [para. 38].

Counsel:

Brian D. Barrie, for the appellant;

Lucy Anne Cecchetto, for the respondent.

This appeal was heard on May 29 and 30, 1997, by Doherty, Weiler and Moldaver, JJ.A., of the Ontario Court of Appeal.

The following decision of the Court of Appeal was released by Weiler, J.A., on July 10, 1997.