R. v. Purchase (R.D.), 2015 BCCA 211

• Judge: Newbury, Smith and Stromberg-Stein, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 16, 2015
• Jurisdiction: British Columbia
• Citations: 2015 BCCA 211;(2015), 372 B.C.A.C. 182 (CA)

R. v. Purchase (R.D.) (2015), 372 B.C.A.C. 182 (CA);

    640 W.A.C. 182

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. MY.041

Regina (respondent) v. Robert David Purchase (appellant)

(CA040412; 2015 BCCA 211)

Indexed As: R. v. Purchase (R.D.)

British Columbia Court of Appeal

Newbury, Smith and Stromberg-Stein, JJ.A.

May 14, 2015.

Summary:

Purchase was convicted of second degree murder, following his trial before a judge and jury. He appealed, raising two issues: (1) that the trial judge failed to instruct the jury on the use that could be made of evidence of his conduct after the offence; and (2) that the trial judge erred in instructing the jury on the use that could be made of the exculpatory portions of his statement to the police. Trial counsel had not addressed the issues now advanced by appellate counsel.

The British Columbia Court of Appeal dismissed the appeal. With respect to the first issue, limiting and "no probative value" instructions were required to ensure the jury was aware of the permissible use of the post-offence conduct evidence and that it had no probative value with respect to whether Purchase intended to kill the victim. Nevertheless, the error was so harmless that it could not have affected the verdict (Criminal Code, s. 686(1)(b)(iii)). As to the second issue, the trial judge's instruction would not have left the jury under a misapprehension as to the use they could make of the exculpatory portions of Purchase's statement to the police.

Criminal Law - Topic 1265.2

Offences against person and reputation - Murder - General principles - Jury charge - Second degree murder - See paragraphs 23 to 59.

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge (incl. intent and drunkenness) - See paragraphs 23 to 59.

Criminal Law - Topic 4375.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding exculpatory statements by accused - See paragraphs 39 to 59.

Criminal Law - Topic 4378

Procedure - Charge or directions - Jury or judge alone - Judicial review of - See paragraphs 21 and 22.

Criminal Law - Topic 4381

Procedure - Charge or directions - Jury or judge alone - Misdirection - Effect of - See paragraphs 57 and 58.

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - See paragraph 37.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - See paragraphs 23 to 32.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where directions or jury charge incomplete or in error - See paragraphs 33 to 37, 57 and 58.

Cases Noticed:

R. v. Araya (N.) (2015), 468 N.R. 114; 329 O.A.C. 1; 2015 SCC 11, refd to. [para. 21].

R. v. Feil (J.G.) (2012), 316 B.C.A.C. 277; 537 W.A.C. 277; 2012 BCCA 110, appld. [para. 24].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226; 34 O.R.(3d) 620 (C.A.), refd to. [para. 28].

R. v. White (D.R.) (2011), 412 N.R. 305; 300 B.C.A.C. 165; 509 W.AC. 165; 2011 SCC 13, refd to. [para. 28].

R. v. Dennis (1990), 59 C.C.C.(3d) 106; 1990 CanLII 665 (B.C.C.A.), dist. [para. 32].

R. v. Belliveau (L.J.P.) (2005), 212 B.C.A.C. 279; 350 W.A.C. 279; 2005 BCCA 283, appld. [para. 32].

R. v. Jaw (S.G.), [2009] 3 S.C.R. 26; 393 N.R. 246; 464 A.R. 149; 2009 SCC 42, refd to. [para. 37].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 40].

R. v. Sunshine (D.C.) (2013), 335 B.C.A.C. 55; 573 W.A.C. 55; 2013 BCCA 102, leave to appeal refused (2013), 466 N.R. 385 (S.C.C.), consd. [para. 53].

R. v. Rojas (M.A.) et al. (2008), 380 N.R. 211; 260 B.C.A.C. 258; 439 W.A.C. 258; 2008 SCC 56, refd to. [para. 55].

R. v. Evans (A.W.) (2012), 321 B.C.A.C. 295; 547 W.A.C. 295; 2012 BCCA 209, leave to appeal refused (2012), 445 N.R. 397 (S.C.C.), refd to. [para. 56].

R. v. Campbell (C.) (1995), 82 O.A.C. 153; 24 O.R.(3d) 537 (C.A.), refd to. [para. 56].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [para. 33].

Counsel:

K.R. Beatch and R.P. Thirkell, for the appellant;

M.T. Ainslie, Q.C., for the respondent.

This conviction appeal was heard at Vancouver, British Columbia, on January 16, 2015, before Newbury, Smith and Stromberg-Stein, JJ.A., of the British Columbia Court of Appeal. In reasons written by Stromberg-Stein, J.A., the Court delivered the following judgment, dated May 14, 2015.