R. v. Pitre, (1991) 2 B.C.A.C. 186 (CA)

• Judge: Toy, Proudfoot and Wood, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 13, 1991
• Jurisdiction: British Columbia
• Citations: (1991), 2 B.C.A.C. 186 (CA)

R. v. Pitre (1991), 2 B.C.A.C. 186 (CA);

    5 W.A.C. 186

MLB headnote and full text

Regina (respondent) v. Kenneth John Pitre (appellant)

(No. CA010961)

Indexed As: R. v. Pitre

British Columbia Court of Appeal

Toy, Proudfoot and Wood, JJ.A.

June 13, 1991.

Summary:

The accused was convicted of first degree murder following a jury trial. The accused appealed, submitting that the trial judge erred in leaving first degree murder under s. 231(5)(e) of the Criminal Code with the jury, that the jury was misdirected to believe that aiding and abetting a murder would support a first degree murder conviction and that the trial judge erred in allowing the Crown to call rebuttal evidence.

The British Columbia Court of Appeal dismissed the appeal.

Criminal Law - Topic 1269

Murder - First degree murder - What constitutes - Section 231(5)(e) of the Criminal Code provided that "murder is first degree murder ... when death is caused ... while committing or attempting to commit an offence under ... section 279 (kidnapping or forcible confinement)" - A robbery victim was murdered - The accused claimed a confinement incidental to a robbery was not a "forcible confinement" and could not support a first degree murder conviction - The British Columbia Court of Appeal stated that whether the confinement was incidental to a robbery was irrelevant; such confinement was sufficient to elevate a killing to first degree murder - See paragraphs 21 to 29.

Criminal Law - Topic 1269

Murder - First degree murder - What constitutes - The accused claimed that the trial judge failed to clearly instruct the jury that only the person who actually did the killing could be convicted of first degree murder under s. 231(5) of the Criminal Code - The accused claimed the jury was left with the impression that they could convict an aider and abettor (s. 21(1)) of first degree murder - The British Columbia Court of Appeal reviewed the whole jury charge and found no basis to reasonably suggest that the jury was misdirected - See paragraphs 30 to 33.

Criminal Law - Topic 1272

Murder - During commission of other offences - Elements of offence - Section 231(5)(e) of the Criminal Code provided that "murder is first degree murder ... when death is caused ... while committing or attempting to commit an offence under ... section 279 (kidnapping or forcible confinement)" - A robbery victim was murdered - The accused claimed a confinement incidental to a robbery was not a "forcible confinement" and could not support a first degree murder conviction - The British Columbia Court of Appeal stated that whether the confinement was incidental to a robbery was irrelevant; such confinement was sufficient to elevate a killing to first degree murder - See paragraphs 21 to 29.

Criminal Law - Topic 5235

Evidence - Witnesses - Rebuttal evidence - By Crown - An accused charged with first degree murder gave the Crown notice he intended to testify that Anderson killed the victim - The Crown closed its case without calling Anderson - After the accused testified the Crown called Anderson in rebuttal - The accused claimed the evidence should have been called as part of the Crown's case - The British Columbia Court of Appeal held that the trial judge did not err in allowing the rebuttal evidence - The evidence became "clearly relevant" only after the accused testified - The Crown need not adduce evidence in chief to rebut every defence an accused might possibly raise, even if the Crown was forewarned the defence would be raised - See paragraphs 34 to 42.

Evidence - Topic 511

Presentation of evidence - Rebuttal evidence - Criminal cases - [See Criminal Law - Topic 5235 ].

Cases Noticed:

R. v. Farrant, [1983] 1 S.C.R. 124; 46 N.R. 337, refd to. [para. 22].

R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. 1, refd to. [para. 23].

R. v. Gourgon (1979), 19 C.R.R.(3d) 272 (B.C.C.A.), refd to. [para. 26].

R. v. Dollan and Newstead (1982), 65 C.C.C.(2d) 240 (Ont. C.A.), refd to. [para. 28].

R. v. Coombs (1977), 35 C.C.C.(2d) 85 (B.C.C.A.), refd to. [para. 37].

R. v. Levy and Tait (1966), 50 Cr.App.R. 198, refd to. [para. 38].

R. v. Chaulk and Morrissette (1990), 94 N.R. 310; 59 Man.R.(2d) 208; 62 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 40].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 21(1) [para. 18]; sect. 231(5)(e) [para. 17]; sect. 279 [para. 21].

Authors and Works Noticed:

Canada, Law Reform Commission, Homicide, Working Paper No. 33 (1984), generally [para. 25].

Counsel:

E. Anne Cameron, for the appellant;

   W.F. Ehrcke, for the respondent.

This appeal was heard before Toy, Proudfoot and Wood, JJ.A., of the British Columbia Court of Appeal.

On June 13, 1991, Wood, J.A., delivered the following judgment orally for the Court of Appeal.