R. v. Ratté (D.F.), (2012) 327 B.C.A.C. 88 (CA)

• Judge: Donald, Garson and Harris, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 05, 2012
• Jurisdiction: British Columbia
• Citations: (2012), 327 B.C.A.C. 88 (CA);2012 BCCA 352

R. v. Ratté (D.F.) (2012), 327 B.C.A.C. 88 (CA);

    556 W.A.C. 88

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. AU.031

Regina (respondent) v. Denis Florien Ratté (appellant)

(CA038726; 2012 BCCA 352)

Indexed As: R. v. Ratté (D.F.)

British Columbia Court of Appeal

Donald, Garson and Harris, JJ.A.

August 24, 2012.

Summary:

The accused appealed his conviction by a jury of the second degree murder of his wife. He argued, inter alia, that the trial judge erred by allowing the Crown to adduce evidence of his character and allowing inadmissible and prejudicial hearsay evidence from three witnesses.

The British Columbia Court of Appeal dismissed the appeal.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - The accused appealed his conviction by a jury of the second degree murder of his wife - The wife had disappeared in 1997 and the police found no trace of her - The accused allegedly confessed to undercover officers during a "Mr. Big" operation that he had killed the wife and disposed of her body - He argued that the trial judge erred by allowing the Crown to adduce evidence of his character through his daughter's testimony when he had not put his character in issue - The daughter testified as to the type of people her mother and father were - The daughter stated that the father was not "open and honest" like the mother, but "secretive" and "kept things to himself" - The accused argued that the evidence was prejudicial character evidence that would have allowed the jury to reason that the accused was the type of person who could have killed his wife and then successfully kept it a secret for the 10 years - The British Columbia Court of Appeal rejected the argument - The description of the parents' relationship, informed by the perception of the type of people that they were, was relevant, admissible, contextual evidence and was admissible to give the jury a full understanding of the relationship between husband and wife - The evidence would not be taken by a jury to support an inference that the accused was the kind of person who would kill his wife - The evidence was admissible without a limiting instruction - Defence counsel did not seek one - Neither counsel referred to the evidence in their closings - The trial judge did not refer to it in his jury instructions - See paragraphs 25 to 32.

Criminal Law - Topic 4379.2

Procedure - Charge or directions - Jury or judge alone - Directions re evidence admissible for limited purpose - The accused appealed his conviction by a jury of the second degree murder of his wife - The wife had disappeared in 1997 and the police found no trace of her - The accused allegedly confessed to undercover officers during a "Mr. Big" operation that he had killed the wife and disposed of her body - He argued that the trial judge erred by allowing inadmissible and prejudicial hearsay evidence from three witnesses and by not giving a limiting instruction respecting this evidence - The Crown argued that defence counsel agreed to the admissibility of this evidence, elicited additional hearsay on the cross-examination of Crown witnesses and the direct examination of the accused, and based his overall defence strategy on parts of this evidence - The British Columbia Court of Appeal agreed with the substance of the Crown's argument - There was at least an implicit agreement between the parties that the hearsay evidence was being admitted without objection - It was not open to the accused now to object to something tacitly accepted at trial and which reflected a sound strategic approach to his defence - See paragraphs 57 to 73.

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 4379.2 ].

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 Evidence - Topic 7112 ].

Evidence - Topic 7112

Opinion evidence - Nonexpert evidence - Admissibility - The accused appealed his conviction by a jury of the second degree murder of his wife - The wife had disappeared in 1997 and the police found no trace of her - The accused allegedly confessed to undercover officers during a "Mr. Big" operation that he had killed the wife and disposed of her body - During the trial, a police officer testified about the enquiries she made in 1997 to locate the wife - She testified extensively about the specific results of her enquiries and expressed the following opinion "My feeling was and my belief is still to this day that she never left Prince George area." - The British Columbia Court of Appeal held that the opinion was inadmissible for the truth of its contents - The trial judge erred by failing to give a limiting instruction - The jury should have been told that they were to consider only the evidence of fact in deciding whether the wife might have left the Prince George area - However, the court applied the curative proviso (Criminal Code, s. 686(1)(b)) as the trial judge's error was harmless for several reasons - The opinion was given in the context of extensive evidence about the scope of the investigation and its results - The impugned evidence was given in two short answers in the context of a lengthy trial - No objection was made to this evidence which indicated that the error was not significant - Neither counsel referred to it in their closing submission - No request was made for a limiting instruction - The trial judge did not refer to it in his instructions to the jury - The verdict would have been the same without the error - See paragraphs 33 to 56.

Cases Noticed:

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 22].

R. v. Bell (T.M.) (2001), 152 B.C.A.C. 2; 250 W.A.C. 2; 152 C.C.C.(3d) 534; 2001 BCCA 99, refd to. [para. 36].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 36].

R. v. Feil (J.G.) (2012), 316 B.C.A.C. 277; 537 W.A.C. 277; 2012 BCCA 110, refd to. [para. 42].

R. v. Polimac (M.) (2010), 262 O.A.C. 91; 254 C.C.C.(3d) 359; 2010 ONCA 346, leave to appeal refused (2010), 416 N.R. 385; 280 O.A.C. 399 (S.C.C.), refd to. [para. 63].

R. v. Utomi (W.), [2008] O.A.C. Uned. 49; 2008 ONCA 83, refd to. [para. 64].

R. v. Fournier (P.) (1996), 95 O.A.C. 356 (C.A.), refd to. [para. 72].

Counsel:

J.J. Blazina, for the appellant;

G.D. McKinnon, Q.C., for the respondent.

This appeal was heard at Vancouver, B.C., on June 5, 2012, by Donald, Garson and Harris, JJ.A., of the British Columbia Court of Appeal. The following reasons for judgment of the Court of Appeal were delivered by Harris, J.A., on August 24, 2012.