R. v. Puddicombe (N.), (2013) 308 O.A.C. 70 (CA)

• Judge: Doherty, Rosenberg, Simmons, Armstrong* and Tulloch, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 07, 2013
• Jurisdiction: Ontario
• Citations: (2013), 308 O.A.C. 70 (CA);2013 ONCA 506

R. v. Puddicombe (N.) (2013), 308 O.A.C. 70 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. AU.001

Her Majesty the Queen (respondent) v. Nicola Puddicombe (appellant)

(C52286; 2013 ONCA 506)

Indexed As: R. v. Puddicombe (N.)

Ontario Court of Appeal

Doherty, Rosenberg, Simmons, Armstrong* and Tulloch, JJ.A.

August 7, 2013.

Summary:

The accused was convicted by a jury on a charge of first degree murder. The Crown's theory was that the accused and a girlfriend conspired to kill the victim and that the girlfriend murdered the victim under that plan. The trial judge gave the jury a Carter instruction explaining how and when the acts and declarations of one alleged party to an agreement to commit a crime could be used against another party to that agreement. The accused appealed her conviction. The accused argued that the court should reverse a prior decision (Bogiatzis) and declare that a Carter instruction should not be given where the Crown alleged a two-person agreement. Alternatively, if a Carter instruction was appropriate, the accused argued that the trial judge erred in her Carter instruction.

The Ontario Court of Appeal dismissed the appeal. Bogiatzis was correctly decided. The court stated that "a Carter type instruction, properly tailored to the individual case, can be given in cases involving an alleged two-person agreement". The court set out a model Carter instruction to be given to a jury in cases involving a two-person conspiracy where only one person was charged.

Courts - Topic 129

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Supreme Court of Canada - Obiter dictum - The Ontario Court of Appeal stated that "some obiter from the Supreme Court of Canada must be regarded as authoritative and other obiter will be persuasive only: 'All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not "binding"' ... this court, relying on Henry, distinguished between obiter that was integral to the analysis underlying the ratio decidendi of the judgment and obiter that was incidental or collateral to that analysis. The former kind of obiter, but not the latter, is binding on this court." - See paragraphs 67 to 68.

Criminal Law - Topic 2673

Attempts, conspiracies, accessories and parties - Conspiracies - Jury charge - [See both Criminal Law - Topic 2682 ].

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - Either the accused or her girlfriend killed the accused's boyfriend - The Crown's theory was that the accused and girlfriend had a plan for the girlfriend to kill the boyfriend, so that the accused could escape the relationship, collect insurance and pension benefits, and so that the accused and girlfriend could be together - The accused was convicted by a jury of first degree murder - The girlfriend was not charged - The trial judge gave the jury a Carter instruction on the co-conspirator exception to the hearsay rule - The three step instruction was (1) the jury must be satisfied beyond a reasonable doubt based on all of the evidence that the alleged conspiracy existed; (2) if satisfied that a conspiracy existed, the jury must review all evidence directly admissible against the accused to decide whether she was probably a member of the conspiracy; and (3) if the jury was satisfied of probable participation, they must then decide whether the Crown proved beyond a reasonable doubt that the accused participated in the conspiracy - On appeal, the accused argued that a Carter instruction should not be given in cases of a two-person conspiracy, because if an agreement was found at step one, a jury would logically be forced to find at step 3 that the accused was a member of that conspiracy - The Ontario Court of Appeal held that a Carter instruction applied to a two-person conspiracy because the rationale for a Carter instruction did not depend upon the number of members of the conspiracy, the logical difficulties with a Carter instruction in a two-person conspiracy could be overcome by a modified instruction, and no viable alternative to a Carter instruction was proposed - That modified instruction must make clear to the jury that "the existence of the agreement and membership in the agreement are discrete issues and the jury must understand how to approach the evidence in respect of both issues, particularly the issue of individual membership in the conspiracy" - See paragraphs 1 to 122.

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - The Ontario Court of Appeal formulated the following draft jury instruction (Carter instruction re co-conspirator's exception to the hearsay rule) to be used in cases involving a two-person conspiracy: "[1] The Crown must establish two things beyond a reasonable doubt to prove Mr. A's guilt. First, the Crown must prove beyond a reasonable doubt that the agreement alleged existed. If the Crown proves beyond a reasonable doubt that the agreement existed, the Crown must then prove beyond a reasonable doubt that the accused, Mr. A, entered into or joined that agreement. [2] The existence of the agreement and Mr. A's membership in the agreement are two separate questions and must be addressed separately by you in the manner that I will describe. [3] The indictment alleges that only A and B agreed with each other. It might occur to you that logic would say that if you are satisfied beyond a reasonable doubt that the agreement between A and B existed, it must follow that both A and B entered into the agreement. [4] Whatever logic might say to you, that is not the law. It is not the law because as I will explain to you, the evidence you are entitled to consider on the first question, that is, whether the agreement alleged existed, and the evidence you are entitled to consider on the second question, that is, whether Mr. A entered into or joined that agreement, may be quite different. You could come to different answers to the two questions because you may be considering different evidence when answering each question. [5] I stress that you cannot simply jump from the conclusion that the agreement existed to the conclusion that the Crown has proved beyond a reasonable doubt that Mr. A entered into or joined in that agreement with B." - See Appendix A.

Cases Noticed:

R. v. Bogiatzis (A.) (2010), 271 O.A.C. 348; 285 C.C.C.(3d) 437; 2010 ONCA 902, appld. [para. 2].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 4].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142, refd to. [para. 60].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 61].

R. v. Comeau (A.), [1992] R.J.Q. 339; 44 Q.A.C. 93 (C.A.), affd. [1992] 3 S.C.R. 473; 144 N.R. 229; 51 Q.A.C. 213, refd to. [para. 63].

Polowin (David) Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 199 O.A.C. 266; 76 O.R.(3d) 161 (C.A.), leave to appeal denied (2006), 350 N.R. 398 (S.C.C.), refd to. [para. 65].

R. v. Prokofiew (E.) (2010), 264 O.A.C. 174; 100 O.R.(3d) 401; 2010 ONCA 423, affd. (2012), 435 N.R. 1; 296 O.A.C. 1 (S.C.C.), refd to. [para. 68].

R. v. Buckingham (J.) (1998), 162 Nfld. & P.E.I.R. 211; 500 A.P.R. 211 (Nfld. C.A.), refd to. [para. 80].

R. v. Viandante (F.) and Lebras (A.J.) (1995), 102 Man.R.(2d) 126; 93 W.A.C. 126 (C.A.), leave to appeal denied [1996] S.C.C.A. No. 243, refd to. [para. 80].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 87].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 87].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 87].

Ahem v. R. (1988), 80 A.L.R. 161 (H.C.), refd to. [para. 91].

R. v. Duff (G.A.) (1994), 95 Man.R.(2d) 167; 70 W.A.C. 167 (C.A.), refd to. [para. 91].

R. v. Emms (J.) (2010), 272 O.A.C. 248; 104 O.R.(3d) 201; 2010 ONCA 817, affd. (2012), 437 N.R. 324; 297 O.A.C. 292 (S.C.C.), refd to. [para. 93].

Bourjaily v. United States (1987), 483 U.S. 171, refd to. [para. 96].

R. v. Yumnu (I.) (2010), 269 O.A.C. 48; 260 C.C.C.(3d) 421; 2010 ONCA 637, refd to. [para. 107].

R. v. James (W.A.) et al. (2007), 251 N.S.R.(2d) 255; 802 A.P.R. 255; 216 C.C.C.(3d) 490; 2007 NSCA 19, refd to. [para. 112].

R. v. Mota (1979), 46 C.C.C.(2d) 273 (Ont. C.A.), refd to. [para. 116].

Authors and Works Noticed:

Parkes, Debra L., Precedent Unbound? Contemporary Approaches to Precedent in Canada (2007), 32 Man. L.J. 135, generally [para. 65].

Spencer, Keith, The Common Enterprise Exception to the Hearsay Rule (2007), 11 Int'l J. Evidence & Proof 106, generally [para. 86, footnote 7].

Stuesser, Lee, and Paciocco, David, The Law of Evidence (6th Ed. 2011), pp. 156 to 158 [para. 112].

Counsel:

David E. Harris, for the appellant;

Elise Nakelsky, for the respondent;

John North and Iona Jaffe, for the intervenor, the Public Prosecution Service of Canada;

Peter Copeland and Ryan Clements, for the intervenor, the Criminal Lawyers' Association (Ontario).

This appeal was heard on January 30-31, 2013, before Doherty, Rosenberg, Simmons, Armstrong* and Tulloch, JJ.A., of the Ontario Court of Appeal.

On August 7, 2013, Doherty, J.A., released the following judgment for the Court.

*Armstrong, J.A., did not participate in the judgment.