R. v. Peepeetch, 2003 SKCA 76

• Jurisdiction: Saskatchewan
• Judge: Vancise, Sherstobitoff and Jackson, JJ.A.
• Neutral Citation: 2003 SKCA 76
• Court: Court of Appeal (Saskatchewan)
• Date: 19 August 2003
• Citation: 2003 SKCA 76,(2003), 238 Sask.R. 14 (CA),[2004] 1 WWR 552,14 CR (6th) 373,177 CCC (3d) 37,[2003] SJ No 542 (QL),238 Sask R 14,(2003), 238 SaskR 14 (CA),[2003] S.J. No 542 (QL),238 SaskR 14,238 Sask.R. 14

R. v. Peepeetch (K.D.) (2003), 238 Sask.R. 14 (CA);

    305 W.A.C. 14

MLB headnote and full text

Temp. Cite: [2003] Sask.R. TBEd. SE.020

Kenneth Dean Peepeetch (appellant) v. Her Majesty the Queen (respondent)

(No. 7611; 2003 SKCA 76)

Indexed As: R. v. Peepeetch (K.D.)

Saskatchewan Court of Appeal

Vancise, Sherstobitoff and Jackson, JJ.A.

August 19, 2003.

Summary:

A court composed of a judge and jury found the accused guilty of the first degree murder of his estranged common-law wife and her lover. The accused appealed alleging that he was not fit to stand trial, was not competent to instruct counsel and was not competent to conduct his own defence. He also contended that the trial judge committed a number of errors of law, with the result that a new trial had to be ordered.

The Saskatchewan Court of Appeal dismissed the appeal.

Criminal Law - Topic 127.1

General principles - Rights of accused - Right to self-representation - After an assessment, the accused was found fit to stand trial for first degree murder - He elected to be unrepresented - The accused was convicted - He appealed, arguing that being found fit to stand trial did not automatically mean that he was competent to represent himself at trial - The Saskatchewan Court of Appeal dismissed the appeal - After discussion of the applicable law, the court ruled that "there is not a higher standard for determining whether the accused (appellant) can represent himself. Once an accused is determined to be fit to stand trial on the test as set forth in s. 672.22 that the accused is able to understand the nature or object of the proceedings; to understand the possible consequences of the proceedings; or to communicate with counsel, then he or she is capable to choose whether or not to defend himself or herself" - See paragraphs 41 to 68, 75.

Criminal Law - Topic 131

General principles - Rights of accused - Right to just conduct of trial - The Saskatchewan Court of Appeal held that the trial judge complied with the duty of a trial judge respecting an unrepresented accused where he did everything in his power to ensure that the accused received a fair trial including: (a) carefully explaining the law and procedures to the accused; (b) providing him with the assistance of counsel (against the accused's wishes) to assist him to identify and examine relevant issues; (c) directing on his own motion that prospective jurors be questioned to determine whether they were biased against aboriginals (the accused was aboriginal); (d) repeatedly explaining the purpose of cross-examination; (f) directing that written instructions on how to cross-examine be given to the accused; (e) explaining the burden of proof; (f) making sure the accused be given an up-to-date copy of the Criminal Code; (g) explaining the normal conduct of a defence at the end of the Crown's case; (h) routinely adjourning to allow the accused time to review his notes and the evidence or to order the production of transcripts to enable the accused to prepare; and (i) assisting the accused in making sure all defence witnesses the accused wished to call were present to testify - See paragraphs 69 to 76.

Criminal Law - Topic 4293.1

Procedure - Trial judge - Duties and functions of - Jury trials - The accused requested the trial judge to tell the jury "everything that happened in their absence" - The trial judge's answer to the jury included a statement that, in his opinion, the evidence the day before was "devastating" - The Saskatchewan Court of Appeal found that this was an error - The court added that the trial judge quickly realized his error and almost immediately instructed the jury to disregard his opinion or his assessment of the evidence - He repeated that instruction later in the day and many times during his jury charge - The court ruled that this error could not have reasonably affected the result (the accused was convicted) as the accused later admitted most of the "devastating evidence" - The trial judge discharged his duties "admirably" and with "great assistance" to the unrepresented accused - See paragraphs 81 to 83.

Criminal Law - Topic 4294

Procedure - Trial judge - Duties and functions of - Where accused not represented - [See Criminal Law - Topic 131 and Criminal Law - Topic 4293.1 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding reasonable doubt - The trial judge told the jury: "If, after weighing and carefully considering the evidence, you find that you are wavering, if you are unable to come to an abiding conviction amounting to a moral certainty that he [the accused] committed the offence then there is a reasonable doubt, and if there is a reasonable doubt you must give him the benefit of that doubt, and find him not guilty. If, after weighing all the evidence, you are left with an abiding conviction amounting to a moral certainty that satisfies your reason and common sense that he did commit an offence with which he is charged, then there is no reasonable doubt, and you must find him - - you are entitled to find him guilty, and should do so" - The Saskatchewan Court of Appeal ruled that the trial judge had not erred - See paragraphs 84 to 88.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The accused appealed against his conviction for first degree murder - He alleged that he was not fit to stand trial and was not competent to instruct counsel - The accused sought an order permitting him to file fresh evidence in support of this allegation - The Saskatchewan Court of Appeal dismissed the application - The proposed evidence did not meet the criteria established on the authorities for admission because it was not necessary to receive it to decide the issue of the accused's ability to instruct counsel - Furthermore, the fresh evidence proposed was based on factual constructs that were not accurate because they were based on post-trial interviews with the accused which contradicted his testimony at trial - See paragraphs 2 to 19.

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193, refd to. [para. 3, footnote 1].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 100 C.C.C.(3d) 225 (C.A.), consd. [para. 4, footnote 2].

R. v. Sauve (G.J.) (1997), 101 B.C.A.C. 21; 164 W.A.C. 21; 121 C.C.C.(3d) 225 (C.A.), refd to. [para. 5, footnote 4].

R. v. Osiowy (1989), 80 Sask.R. 14; 52 C.C.C.(3d) 500 (C.A.), refd to. [para. 6, footnote 5].

R. v. Oxby (N.W.), [2000] Sask.R. Uned. 235 (C.A.), refd to. [para. 6, footnote 6].

R. v. Gumbly (D.) (1996), 155 N.S.R.(2d) 117; 457 A.P.R. 117; 112 C.C.C.(3d) 61 (C.A.), refd to. [para. 6, footnote 7].

R. v. Lévesque (R.), [2000] 2 S.C.R. 487; 260 N.R. 165; 36 C.R.(5th) 291, refd to. [para. 6, footnote 8].

R. v. Stolar - see R. v. Nielsen and Stolar.

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46, refd to. [para. 7, footnote 9].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, consd. [para. 11, footnote 10].

R. v. Taylor (D.R.M.) (1992), 59 O.A.C. 43; 77 C.C.C.(3d) 551 (C.A.), refd to. [para. 42, footnote 26].

R. v. Woodward, [1944] 1 All E.R. 159 (C.C.A.), consd. [para. 44, footnote 27].

R. v. Vescio, [1949] S.C.R. 139, consd. [para. 45].

Faretta v. California (1975), 422 U.S. 806 (U.S.S.C.), consd. [para. 46, footnote 32].

R. v. Bowles and Danylak (1985), 62 A.R. 167; 21 C.C.C.(3d) 540 (C.A.), refd to. [para. 48, footnote 37].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, consd. [para. 49, footnote 38].

Godinez v. Moran (1993), 509 U.S. 389 (U.S.S.C.), consd. [para. 50, footnote 41].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201, consd. [para. 55].

R. v. Romanowicz (J.) (1998), 49 O.T.C. 58; 14 C.R.(5th) 100 (Gen. Div.), affd. (1999), 124 O.A.C. 100; 138 C.C.C.(3d) 225 (C.A.), consd. [para. 66, footnote 65].

R. v. Fabrikant (V.) (1995), 67 Q.A.C. 268; 97 C.C.C.(3d) 544 (C.A.), leave to appeal refused (1995), 193 N.R. 400; 98 C.C.C.(3d) vi (S.C.C.), consd. [para. 67, footnote 67].

R. v. Gordon (C.C.), [2003] O.A.C. Uned. 185 (C.A.), refd to. [para. 68, footnote 68].

R. v. McGibbon (1988), 31 O.A.C. 10; 45 C.C.C.(3d) 334 (C.A.), refd to. [para. 73, footnote 75].

R. v. Phillips (M.A.) (2003), 320 A.R. 172; 288 W.A.C. 172; 172 C.C.C.(3d) 285 (C.A.), refd to. [para. 73, footnote 76].

R. v. Campbell (1981), 49 N.S.R.(2d) 307; 96 A.P.R. 307 (C.A.), refd to. [para. 83, footnote 78].

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. 84, footnote 79].

R. v. Feeley (R.W.) (2001), 149 O.A.C. 204; 156 C.C.C.(3d) 449 (C.A.), affd. (2003), 301 N.R. 115; 170 O.A.C. 97; 171 C.C.C.(3d) 353 (S.C.C.), consd. [para. 85, footnote 81].

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. 86, footnote 83].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 89, footnote 84].

Authors and Works Noticed:

Brakel, Samuel Jan, Parry, John, and Weiner, Barbara A., The Mentally Disabled and the Law (3rd Ed. 1985), p. 693 [para. 56, footnote 52].

Weiner, Barbara A., Mental Disability and the Criminal Law, in Brakel, Samuel Jan, Parry, John and Weiner, Barbara A., The Mentally Disabled and the Law (3rd Ed. 1985), p. 693 [para. 56, footnote 52].

Counsel:

Bob P. Hrycan, for the appellant;

W. Dean Sinclair, for the Attorney General of Saskatchewan.

This appeal was heard on June 3, 2003, by Vancise, Sherstobitoff and Jackson, JJ.A., of the Saskatchewan Court of Appeal.

The decision of the Court of Appeal was delivered at Regina, Saskatchewan, on August 19, 2003, by Vancise, J.A.