R. v. Quinn (K.), (2009) 271 B.C.A.C. 243 (CA)

• Judge: Finch, C.J.B.C., Ryan and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 12, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 271 B.C.A.C. 243 (CA);2009 BCCA 267

R. v. Quinn (K.) (2009), 271 B.C.A.C. 243 (CA);

    458 W.A.C. 243

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. JN.043

Regina (respondent) v. Katherine Quinn (appellant)

(CA035074; 2009 BCCA 267)

Indexed As: R. v. Quinn (K.)

British Columbia Court of Appeal

Finch, C.J.B.C., Ryan and Lowry, JJ.A.

June 12, 2009.

Summary:

Quinn was charged jointly with Forslund in the killing of Martins, who was beaten to death by Forslund. The Crown asserted that Quinn was liable as a party to the offence under ss. 21(1)(b) and (c) of the Criminal Code by having aided or abetted Forslund in the killing. In support of the theory that Quinn abetted Forslund, the Crown led evidence that at the time of the killing, Quinn encouraged Forslund by telling him to kill Martins. In support of the theory that Quinn aided Forslund in the killing, the Crown led evidence from Detective T.C., who was a "cell plant" after Quinn's arrest, and who testified that Quinn told her that Forslund had grabbed a beer bottle from her that he used in the assault. Quinn was convicted of second degree murder following a trial by judge and jury. Quinn appealed from the conviction. She also applied for leave to adduce fresh evidence in the form of an affidavit from Forslund, to the effect that Quinn had no part in Martins' death.

The British Columbia Court of Appeal dismissed the application to adduce fresh evidence. The court allowed the appeal and ordered a new trial. The court held that it was wrong for the Crown to tell the jury that Quinn aided Forslund by "giving" him the beer bottle and that she "knew" when Forslund took the bottle that it would be used in the attack on Martins, because there was no evidence to support either of those statements, and no evidence from which such inferences could reasonably be drawn. The Crown's submission on the beer bottle theory of aiding provided the jury with a route to liability that was not open on the evidence. The judge should have instructed the jury accordingly, and should not have left "aiding" with the jury as an alternate path to Quinn's liability

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 2759

Attempts, conspiracies, accessories and parties - Parties to offences - Jury charge - Forslund beat Martins to death - The Crown asserted that Quinn was liable as a party to the offence under ss. 21(1)(b) and (c) of the Criminal Code by having aided or abetted Forslund in the killing - In support of the theory that Quinn aided Forslund in the killing, the Crown led evidence from Detective T.C., who was a "cell plant" after Quinn's arrest, and who testified that Quinn told her that Forslund had grabbed a beer bottle from her that he used in the assault - Quinn was convicted of second degree murder - The British Columbia Court of Appeal allowed Quinn's appeal and ordered a new trial - It was wrong for the Crown to tell the jury that Quinn aided Forslund by "giving" him the bottle and that Quinn "knew" when Forslund took the bottle that it would be used in the attack on Martins, because there was no evidence to support those statements, and no evidence from which such inferences could reasonably be drawn - The Crown's submission on the beer bottle theory of aiding provided the jury with a route to liability that was not open on the evidence - The judge should have instructed the jury accordingly, and should not have left "aiding" with the jury as an alternate path to Quinn's liability - Taking the charge on this issue, together with the Crown's misstatement of the evidence, there was a misdirection on the law in leaving s. 21(1)(b) as a route to Quinn's liability - The conviction could not be sustained by the curative proviso in s. 686(1)(b)(iii) of the Code - A miscarriage of justice may have occurred - The court was not satisfied that the verdict would necessarily have been the same had the s. 21(1)(b) route to liability not been left with the jury - See paragraphs 92 to 126.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - Quinn was charged jointly with Forslund in the killing of Martins, who was beaten to death by Forslund - The Crown asserted that Quinn was liable as a party to the offence by having aided or abetted Forslund in the killing - Quinn was convicted of second degree murder - Quinn appealed from the conviction - She also applied for leave to adduce fresh evidence in the form of an affidavit from Forslund, to the effect that Quinn had no part in Martins' death, which was solely Forslund's doing - The British Columbia Court of Appeal dismissed the application to adduce fresh evidence where it failed to meet the test for due diligence - Forslund and Quinn had been tried together - Forslund chose not to testify - Quinn had not presented any evidence to explain why she did not apply for severance of her trial from Forslund's, so that Forslund could have been called as a witness in her defence - Similarly, if Forslund had wished to testify on Quinn's behalf, he could have applied for severance - See paragraphs 84 to 90.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 2759 ].

Criminal Law - Topic 5046

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where counsel raises unproven facts - [See Criminal Law - Topic 2759 ].

Criminal Law - Topic 5336.1

Evidence and witnesses - Confessions and voluntary statements - Recording or videotaping interrogation - Forslund beat Martins to death - The Crown asserted that Quinn was liable as a party to the offence by having aided or abetted Forslund in the killing - In support of the theory that Quinn aided Forslund in the killing, the Crown led evidence from Detective T.C., who was a "cell plant" after Quinn's arrest, and who testified that Quinn told her that Forslund had grabbed a beer bottle from her that he used in the assault - Quinn was convicted of second degree murder - Quinn appealed from the conviction - Quinn argued that the testimony of what Detective T.C. said Quinn had told her in the cells should not have been admitted because the cell plant conversation was not recorded - The British Columbia Court of Appeal held that the trial judge did not err in admitting Detective T.C.'s evidence of her conversation with Quinn - The trial judge ruled, correctly, that prior judicial authorization was required before the police could intercept and record communications between Detective T.C. and Quinn - The trial judge accepted the police evidence that it would take too long to obtain an authorization, and that the opportunity for cell plant evidence would be lost - The court stated that "The failure to record electronically a formal police interview, when there is no good reason not to, may raise suspicion and present obstacles to the Crown in its efforts to prove beyond a reasonable doubt that a statement given to a person in authority was voluntary. But whether such suspicion is warranted depends on the facts of each case" - In this case, the trial judge was satisfied that there was no reason to be suspicious of the police failure to record the conversation in the cell - Based on that finding the judge did not err in ruling that, although the statement was not recorded, that fact went only to weight and not to admissibility - See paragraphs 93 to 98.

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 88].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 94].

R. v. Duarte - see R. v. Sanelli, Duarte and Fasciano.

R. v. Mojtahedpour (K.) (2003), 178 B.C.A.C. 47; 292 W.A.C. 47; 171 C.C.C.(3d) 428; 2003 BCCA 22, refd to. [para. 94].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 96].

R. v. Ducharme (K.A.) (2004), 184 Man.R.(2d) 36; 318 W.A.C. 36; 182 C.C.C.(3d) 243; 2004 MBCA 29, refd to. [para. 96].

R. v. Groat (R.) (2006), 221 B.C.A.C. 240; 364 W.A.C. 240; 2006 BCCA 27, refd to. [para. 96].

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, refd to. [para. 105].

R. v. Daunt (G.K.) (2007), 248 B.C.A.C. 201; 412 W.A.C. 201; 2007 YKCA 14, refd to. [para. 107].

R. v. Mitchell (C.L.) (2006), 214 O.A.C. 307 (C.A.), refd to. [para. 107].

R. v. Purdy (K.K.) (2008), 252 B.C.A.C. 150; 422 W.A.C. 150; 2008 BCCA 95, refd to. [para. 113].

R. v. Richards (L.) (2004), 186 O.A.C. 378; 70 O.R.(3d) 737 (C.A.), refd to. [para. 113].

R. v. R.M.G., [1996] 3 S.C.R. 362; 202 N.R. 1; 81 B.C.A.C. 81; 132 W.A.C. 81, refd to. [para. 114].

R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881; 27 N.R. 153, refd to. [para. 115].

R. v. Chao (K.J.S.) et al. (2006), 229 B.C.A.C. 236; 379 W.A.C. 236; 2006 BCCA 368, refd to. [para. 115].

R. v. Lai (J.R.) - see R. v. Chao (K.J.S.) et al.

R. v. J.F.D. et al. (2005), 211 B.C.A.C. 235; 349 W.A.C. 235; 2005 BCCA 202, refd to. [para. 115].

R. v. Walcot (M.F.) (2001), 152 B.C.A.C. 200; 250 W.A.C. 200; 2001 BCCA 342, refd to. [para. 115].

R. v. Richardson (V.) (1993), 132 N.B.R.(2d) 375; 337 A.P.R. 375 (C.A.), refd to. [para. 115].

R. v. Bennett (M.) (2003), 177 O.A.C. 71; 67 O.R.(3d) 257 (C.A.), refd to. [para. 118].

R. v. Théroux (R.), [1993] 2 S.C.R. 5; 151 N.R. 104; 54 Q.A.C. 184; 79 C.C.C.(3d) 449, refd to. [para. 128].

R. v. Daviault (H.), [1994] 3 S.C.R. 63; 173 N.R. 1; 64 Q.A.C. 81; 93 C.C.C.(3d) 21, refd to. [para. 128].

Counsel:

J.W. Millar and C. Garcia, for the appellant;

M.T. Ainslie, for the respondent.

This appeal was heard on March 9 and 10, 2009, at Vancouver, British Columbia, before Finch, C.J.B.C., Ryan and Lowry, JJ.A., of the British Columbia Court of Appeal. The judgment of the Court of Appeal was delivered on June 12, 2009, including the following opinions:

Finch, C.J.B.C. (Lowry, J.A., concurring) - see paragraphs 1 to 126;

Ryan, J.A. - see paragraphs 127 to 136.