R. v. Pritchard (D.M.), 2007 BCCA 82

• Judge: Newbury, Hall and Kirkpatrick, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 08, 2007
• Jurisdiction: British Columbia
• Citations: 2007 BCCA 82;(2007), 238 B.C.A.C. 1 (CA)

R. v. Pritchard (D.M.) (2007), 238 B.C.A.C. 1 (CA);

    393 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. FE.033

Regina (respondent) v. David Mostyn Pritchard (appellant)

(CA030487; 2007 BCCA 82)

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

British Columbia Court of Appeal

Newbury, Hall and Kirkpatrick, JJ.A.

February 8, 2007.

Summary:

The accused was convicted of first degree murder which occurred during the course of a robbery on the basis of circumstantial evidence and statements made by the accused to police. The body of the victim had not been located. The accused appealed his conviction.

The British Columbia Court of Appeal dismissed the appeal.

Criminal Law - Topic 1269

Murder - First degree murder - What constitutes - [See Criminal Law - Topic 4358 ].

Criminal Law - Topic 1279

Murder - During commission of other offences - Evidence and proof - [See Criminal Law - Topic 4358 ].

Criminal Law - Topic 1450.5

Unlawful confinement, imprisonment or forcible seizure - Jury charge - The accused was convicted of first degree murder which occurred while confining the victim during the course of a robbery - The conviction was based on circumstantial evidence and statements made by the accused to police - The body of the victim had not been located - The accused appealed his conviction, arguing that the trial judge incorrectly instructed the jury on the meaning of "confinement" within s. 279 of the Criminal Code - The British Columbia Court of Appeal dismissed the appeal - The court examined the trial judge's instruction to the jury on the issue of confinement holding that it was correct - See paragraphs 80 to 86 and 101.

Criminal Law - Topic 4358

Procedure - Charge or directions - Jury or judge alone - Directions regarding circumstantial evidence - The accused was convicted of first degree murder which occurred when the victim was confined during a robbery - The conviction was made on the basis of circumstantial evidence and statements he made to police - The victim's body was not found - The accused appealed his conviction - The British Columbia Court of Appeal dismissed the appeal - The court held that the totality of the circumstantial evidence ineluctably led to the conclusion that the accused robbed the deceased of marijuana and killed the deceased in the course of confining her during the commission of that robbery - There was a reasonable basis in the evidence to render a verdict of guilty of first degree murder against the accused - As to the statements of the accused that were before the jury, it was open to the jury to find that what was said by the accused to the authorities and in his evidence seeking to cast responsibility for the robbery and homicide onto his friend were deliberate falsehoods concocted to mislead them - If the jury accepted the evidence of the friend, that was evidence of the falsehood of the account of events given by the accused - The trial judge correctly instructed the jury that if they found deliberate falsehood calculated to mislead them on the part of the accused, they could consider this as an inculpatory circumstance against him - The verdict of the jury indicated they accepted the friend's evidence that he was not the killer of the deceased - The jury was also entitled to view the statement in the light suggested in argument by the Crown, namely that in the narration of some of the activity surrounding the robbery and homicide the accused was using what he said his friend did as a proxy for what he himself did - That was the so-called substitution theory - It was entirely within the province of the jury to consider this submission and give such weight to it as they saw fit - The judge made no error in leaving this issue to be considered by the jury - See paragraphs 90 to 102.

Criminal Law - Topic 4372

Procedure - Charge or directions - Jury or judge alone - Directions respecting alibi evidence or explanation by accused - [See Criminal Law - Topic 4358 ].

Criminal Law - Topic 4392

Procedure - Charge or directions - Jury or judge alone - Directions regarding inferences of guilt (incl. consciousness of guilt) - [See Criminal Law - Topic 4358 ].

Criminal Law - Topic 4399.1

Procedure - Charge or directions - Jury or judge alone - Direction re false statements by accused - [See Criminal Law - Topic 4358 ].

Criminal Law - Topic 5313

Evidence and witnesses - Inferences - Of consciousness of guilt - From falsehoods - [See Criminal Law - Topic 4358 ].

Criminal Law - Topic 5315

Evidence and witnesses - Inferences - Of guilt - From alibi evidence - [See Criminal Law - Topic 4358 ].

Words and Phrases

Confines - The British Columbia Court of Appeal discussed the meaning of the word "confines" as used in s. 279 of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 80 to 86.

Cases Noticed:

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 143 C.C.C.(3d) 1; 2000 SCC 15, refd to. [para. 38].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 38].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 42].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 43].

R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C.(2d) 424 (Ont. C.A.), leave to appeal refused [1974] S.C.R. viii, refd to. [para. 45].

R. v. White, [1956] S.C.R. 709, refd to. [para. 46].

R. v. Jones (1971), 3 C.C.C.(2d) 153 (Ont. C.A.), refd to. [para. 46].

Kahn (Mawaz) et al. v. R., [1966] 3 W.L.R. 1275 (P.C.), refd to. [para. 46].

People v. Russell (1934), 266 N.Y. 147, refd to. [para. 47].

R. v. Mahoney (1979), 50 C.C.C.(2d) 380 (Ont. C.A.), affd. [1982] 1 S.C.R. 834; 41 N.R. 582, refd to. [para. 48].

R. v. Levy (1991), 44 O.A.C. 5; 62 C.C.C.(3d) 97 (C.A.), refd to. [para. 48].

R. v. Babinski (R.R.) (1991), 50 O.A.C. 341; 67 C.C.C.(3d) 187 (C.A.), affd. [1992] 3 S.C.R. 467; 143 N.R. 387; 59 O.A.C. 39, refd to. [para. 48].

R. v. Carey (1996), 113 C.C.C.(3d) 74 (Que. C.A.), refd to. [para. 48].

R. v. Michaud (F.) (1995), 161 N.B.R.(2d) 215; 414 A.P.R. 215; 98 C.C.C.(3d) 121 (C.A.), affd. [1996] 2 S.C.R. 458; 198 N.R. 231; 178 N.B.R.(2d) 308; 454 A.P.R. 308, refd to. [para. 48].

R. v. To (W.H.) (1992), 16 B.C.A.C. 223; 28 W.A.C. 223 (C.A.), refd to. [para. 48].

R. v. Witter (V.A.) (1996), 89 O.A.C. 1; 105 C.C.C.(3d) 44 (C.A.), refd to. [para. 48].

R. v. Roy (J.) (2000), 145 B.C.A.C. 289; 237 W.A.C. 289; 2000 BCCA 544, refd to. [para. 48].

R. v. Simpson (C.D.) (2002), 174 B.C.A.C. 228; 286 W.A.C. 228; 2002 BCCA 565, refd to. [para. 48].

R. v. Baltovich (R.) (2004), 192 O.A.C. 366; 191 C.C.C.(3d) 289 (C.A.), refd to. [para. 48].

R. v. Tessier (R.J.) (1997), 87 B.C.A.C. 269; 143 W.A.C. 269; 113 C.C.C.(3d) 538 (C.A.), refd to. [para. 48].

R. v. Hibbert (K.R.), [2002] 2 S.C.R. 445; 287 N.R. 111; 165 B.C.A.C. 161; 270 W.A.C. 161; 2002 SCC 39, refd to. [para. 52].

R. v. Reynolds (J.) (2003), 169 O.A.C. 26; 172 C.C.C.(3d) 559 (C.A.), refd to. [para. 55].

R. v. Coutts (S.) et al. (1998), 110 O.A.C. 353; 126 C.C.C.(3d) 545 (C.A.), leave to appeal refused (1999), 239 N.R. 193; 123 O.A.C. 199 (S.C.C.), refd to. [para. 55].

R. v. Blazeiko (G.) (2000), 133 O.A.C. 123; 145 C.C.C.(3d) 557 (C.A.), refd to. [para. 55].

United States of America v. Huynh (2005), 202 O.A.C. 198; 200 C.C.C.(3d) 305 (C.A.), refd to. [para. 65].

R. v. MacKay (S.I.) (1992), 17 B.C.A.C. 100; 29 W.A.C. 100; 16 C.R.(4th) 351 (C.A.), leave to appeal refused (1993), 150 N.R. 393; 31 B.C.A.C. 159; 50 W.A.C. 159 (S.C.C.), refd to. [para. 66].

Wakelin v. London and South Western Railway Co. (1886), L.R. 12 App. Cas. 41 (H.L.), refd to. [para. 67].

Caswell v. Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152 (H.L.), refd to. [para. 67].

Hodge's Case (1838), 2 Lewin 227; 168 E.R. 1136, refd to. [para. 67].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181, refd to. [para. 67].

R. v. Charemski (J.), [1998] 1 S.C.R. 679; 224 N.R. 120; 108 O.A.C. 126, refd to. [para. 71].

R. v. Monteleone, [1987] 2 S.C.R. 154; 78 N.R. 377; 23 O.A.C. 241, refd to. [para. 71].

R. v. Walker (J.P.) (1994), 70 O.A.C. 148; 90 C.C.C.(3d) 144 (C.A.), refd to. [para. 76].

R. v. Strong (1990), 111 A.R. 12; 60 C.C.C.(3d) 516 (C.A.), refd to. [para. 83].

R. v. Gourgon (1979), 19 C.R.(3d) 272 (B.C.C.A.), refd to. [para. 84].

R. v. Kimberley (C.M.) et al. (2001), 151 O.A.C. 42; 157 C.C.C.(3d) 129 (C.A.), refd to. [para. 84].

R. v. Clancey (T.R.) - see R. v. Kimberley (C.M.) et al.

R. v. Niedermier (B.T.) (2005), 207 B.C.A.C. 171; 341 W.A.C. 171; 193 C.C.C.(3d) 199 (C.A.), refd to. [para. 85].

R. v. Trochym (S.J.) (2007), 357 N.R. 201; 221 O.A.C. 281; 2007 SCC 6, refd to. [para. 88].

R. v. David (R.E.) et al. (2006), 230 B.C.A.C. 280; 380 W.A.C. 280; 213 C.C.C.(3d) 64; 2006 BCCA 412, refd to. [para. 99].

R. v. Seitcher (T.T.) - see R. v. David (R.E.) et al.

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 279 [para. 80].

Authors and Works Noticed:

Ferguson, Gerry A., and Bouck, John C., Canadian Criminal Jury Instructions (3rd Ed.) (1994 Looseleaf), §§ 8.04.1 to 8.04.4 [para. 50].

Ferguson, Gerry A., Dambot, Michael R., and Bennet, Elizabeth A., Canadian Criminal Jury Instructions (4th Ed.) (2005 Looseleaf), §§ 4.21.1, 4.21.9 [para. 55].

Counsel:

R.C. Gibbs, Q.C., and R.H. Holloway, for the appellant;

K. Ker and T. Shaw, for the respondent.

This appeal was heard on December 13 and 14, 2006, at Vancouver, British Columbia, before Newbury, Hall and Kirkpatrick, JJ.A., of the British Columbia Court of Appeal. The decision of the Court of Appeal was delivered on February 8, 2007, when the following opinions were filed:

Newbury, J.A. - see paragraphs 1 to 89;

Hall, J.A. (Kirkpatrick, J.A., concurring) - see paragraphs 90 to 102.