R. v. Peters (D.W.A.), (1999) 126 B.C.A.C. 208 (CA)

• Judge: McEachern, C.J.B.C., Goldie and Proudfoot, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: July 05, 1999
• Jurisdiction: British Columbia
• Citations: (1999), 126 B.C.A.C. 208 (CA);1999 BCCA 406

R. v. Peters (D.W.A.) (1999), 126 B.C.A.C. 208 (CA);

    206 W.A.C. 208

MLB headnote and full text

Temp. Cite: [1999] B.C.A.C. TBEd. AU.036

Regina (respondent) v. Dale William Arnold Peters (appellant)

(CA023577; 1999 BCCA 406)

Indexed As: R. v. Peters (D.W.A.)

British Columbia Court of Appeal

McEachern, C.J.B.C., Goldie and Proudfoot, JJ.A.

July 5, 1999.

Summary:

The accused was indicted for second degree murder. A jury convicted the accused of manslaughter. The accused appealed the conviction.

The British Columbia Court of Appeal dismissed the appeal.

Civil Rights - Topic 1410.2

Security of the person - Law enforcement - Investigation - [See Criminal Law - Topic 253 ].

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - Since a 1978 murder, police attempted a number of undercover operations with the purpose of obtaining further incriminating statements from the accused, then a suspect - The police set up an elaborate scheme appearing to recruit the accused to participate in a number of illegal transactions - The last operation was in early 1996 - Officers posed as criminals in custody and sought to recruit the accused to join them in bogus underworld activities - Upon being released, and con­trary to his bail conditions, they gave the accused alcohol and took him on trips - The British Columbia Court of Appeal commented that the officers' persistence was so extensive and so prolonged that it almost constituted an abuse of process - See paragraphs 15, 43 to 48, 86, 92.

Criminal Law - Topic 1266

Offences against person and reputation - Murder - Jury charge - Included or alterna­tive offences - The accused was charged with second degree murder but convicted by a jury of manslaughter - The British Columbia Court of Appeal held that the trial judge was obligated to instruct the jury on both the question of intoxication in determining whether the accused had the requisite intention for murder, and also the alternative verdict of manslaughter - See paragraphs 54 to 62.

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge (incl. intent and drunkenness) - [See Criminal Law - Topic 1266 ].

Criminal Law - Topic 4313

Procedure - Jury - General - Questioning of prospective jurors - The British Colum­bia Court of Appeal stated that it was essential for the proper administration of justice that jurors being examined at any stage of a trial with a view to being dis­charged or for any reason should be given the strictest possible instruction that they must not disclose or indicate what views they have about the merits of the case or about the jury's deliberations - In cases where that information was blurted out, it may be necessary to declare a mistrial or set aside a guilty verdict if, upon a con­sideration of the entire trial, it appeared that unfairness may result - See paragraph 85.

Criminal Law - Topic 4325

Procedure - Jury - General - Discharge of juror - A juror stated that he did not feel "able to sit as a judge of [his] fellow man" - The British Columbia Court of Appeal held that this was a sufficient ground for discharging a juror - See paragraphs 75 to 78, 92.

Criminal Law - Topic 4325.1

Procedure - Jury - General - Discharge of juror - Proceeding with reduced number of jurors - The British Columbia Court of Appeal stated that generally speaking, there will usually be no impediment to a 10 or 11 person jury continuing to deliberate a verdict after a juror was discharged, espec­ially when the jury chairman indicated that the remaining jurors were prepared to proceed with an open mind - See para­graph 80.

Criminal Law - Topic 4326

Procedure - Jury - General - Examination of juror by trial judge - [See Criminal Law - Topic 4313 ].

Criminal Law - Topic 4357

Procedure - Jury charge - Directions re­garding defences and theory of the defence - The accused was charged with second degree murder but convicted by a jury of manslaughter - The accused argued that the trial judge failed to adequately explain the theory of the defence - The British Colum­bia Court of Appeal declined to give effect to this submission - See paragraphs 52 to 53, 92.

Criminal Law - Topic 5338

Evidence - Witnesses - Confessions and voluntary statements - Admissibility - Where accused's rights violated - [See Criminal Law - Topic 5350 ].

Criminal Law - Topic 5350

Evidence - Witnesses - Confessions and voluntary statements - Circumstances when warning required - An accused in custody on unrelated matters was briefed on the procedure for taking a voluntary polygraph test - The accused then said he did not wish to proceed without seeing his lawyer - He agreed, however, at the police's sug­gestion, to discuss the case and gave inculpatory statements - Oral tapes of the interview were inadvertently lost by police - The British Columbia Court of Appeal held that (1) the police's failure to warn the accused of his right to silence after he decided not to proceed with the polygraph, did not preclude admission of the state­ments; (2) the statements were made vol­untarily and (3) loss of the tapes did not affect the admissibility of the statements - See paragraphs 19 to 42.

Criminal Law - Topic 5353.2

Evidence - Witnesses - Confessions and voluntary statements - Authenticity of statements - [See Criminal Law - Topic 5350 ].

Criminal Law - Topic 5355

Evidence - Witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - [See Criminal Law - Topic 5350 ].

Criminal Law - Topic 5358

Evidence - Witnesses - Confessions and voluntary statements - Judicial review - The British Columbia Court of Appeal stated that a judge's decision on voluntariness will not be set aside lightly - See paragraph 31.

Police - Topic 3106

Powers - Investigation - Stratagem and subterfuge (incl. trickery) - [See Criminal Law - Topic 253 ].

Police - Topic 3116

Powers - Investigation - Illegal police activity - What constitutes - [See Criminal Law - Topic 253 ].

Cases Noticed:

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 29].

R. v. Ewert, [1992] 3 S.C.R. 161; 142 N.R. 154; 16 B.C.A.C. 81; 28 W.A.C. 81, refd to. [para. 31].

R. v. Schar (E.) (1998), 117 B.C.A.C. 151; 191 W.A.C. 151 (C.A.), refd to. [para. 31].

R. v. Tyab, [1994] B.C.J. No. 2184 (C.A.), refd to. [para. 31].

R. v. Coulter, [1988] B.C.J. No. 1751 (C.A.), refd to. [para. 31].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35, refd to. [para. 35].

R. v. Antoine (1983), 41 O.R.(2d) 607 (C.A.), refd to. [para. 36].

R. v. Konechny (1983), 6 D.L.R.(4th) 350 (B.C.C.A.), refd to. [para. 36].

R. v. Dubois, [1985] 2 S.C.R. 350; 62 N.R. 50; 66 A.R. 202, refd to. [para. 36].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 36].

Corporation professionnelle des médecins du Québec v. Thibault, [1988] 1 S.C.R. 1033; 84 N.R. 247; 14 Q.A.C. 173, refd to. [para. 36].

R. v. Shafie (1989), 31 O.A.C. 362; 47 C.C.C.(3d) 27 (C.A.), refd to. [para. 36].

R. v. Longtin (1983), 41 O.R.(2d) 545 (C.A.), refd to. [para. 36].

R. v. James, Kirsten, Rosenthal and Dzagic, [1988] 1 S.C.R. 669; 85 N.R. 1; 41 O.A.C. 303, refd to. [para. 36].

R. v. Stevens, [1988] 1 S.C.R. 1153; 86 N.R. 85; 28 O.A.C. 243, refd to. [para. 36].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 38].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 40].

R. v. D.D.W. (1997), 90 B.C.A.C. 191; 147 W.A.C. 191 (C.A.), affd. [1998] 2 S.C.R. 681; 231 N.R. 322; 113 B.C.A.C. 296; 184 W.A.C. 296, refd to. [para. 40].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 40].

R. v. Burns and Rafay - see United States of America v. Burns and Rafay.

United States of America v. Burns and Rafay (1997), 94 B.C.A.C. 46; 152 W.A.C. 46; 117 C.C.C.(3d) 454 (C.A.), leave to appeal refused (1997), 225 N.R. 400; 109 B.C.A.C. 160; 177 W.A.C. 160 (S.C.C.), refd to. [para. 45].

R. v. Hahn (D.) (1995), 62 B.C.A.C. 6; 103 W.A.C. 6 (C.A.), refd to. [para. 78].

R. v. Sussex Justices, [1924] 1 K.B. 256, refd to. [para. 81].

R. v. Latimer, [1990] O.J. No. 401 (C.A.), consd. [para. 83].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(d) [para. 38].

Counsel:

Kenneth M. Walker, for the appellant;

John Gordon and Jennifer Duncan, for the respondent.

This appeal was heard at Vancouver, British Columbia, on March 30 and 31, 1999, by McEachern, C.J.B.C., Goldie and Proudfoot, JJ.A., of the British Columbia Court of Appeal. The judgment of the court was delivered on July 5, 1999, and the following opinions were filed:

McEachern, C.J.B.C. - see paragraphs 1 to 91;

Goldie, J.A., Proudfoot, J.A., concurring - see paragraphs 92 to 97.