R. v. Richard (D.R.) et al., (2013) 299 Man.R.(2d) 1 (CA)

• Judge: Chartier, C.J.M., Steel and Cameron, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 19, 2012
• Jurisdiction: Manitoba
• Citations: (2013), 299 Man.R.(2d) 1 (CA);2013 MBCA 105

R. v. Richard (D.R.) (2013), 299 Man.R.(2d) 1 (CA);

      590 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. DE.011

Her Majesty The Queen (respondent) v. Donald Raymond Richard (accused/appellant)

(AR 12-30-07718)

Her Majesty The Queen (respondent) v. Melody Lynn Sanford (accused/appellant)

(AR 12-30-07720)

Her Majesty The Queen (respondent) v. Rita Louise Cushnie (accused/appellant)

(AR 12-30-07721)

(2013 MBCA 105)

Indexed As: R. v. Richard (D.R.) et al.

Manitoba Court of Appeal

Chartier, C.J.M., Steel and Cameron, JJ.A.

November 28, 2013.

Summary:

The three accused were charged with conspiracy to commit murder and first degree murder arising out of a vicious beating death. Issues arose respecting the instructions to be given to the jury.

The Manitoba Court of Queen's Bench, in a decision reported at 273 Man.R.(2d) 130, determined the issues accordingly. The jury subsequently found the three accused guilty of first degree murder and conspiracy to commit murder. Each accused received the mandatory life sentence in prison without parole for 25 years for first degree murder. Sentencing for conspiracy to commit murder was adjourned.

The Manitoba Court of Queen's Bench, in a decision reported at 273 Man.R.(2d) 122, sentenced the three accused for conspiracy to commit murder. The court sentenced Cushnie to 10 years' imprisonment and Sanford and Richard to 13 years' imprisonment, all to run concurrent to their sentences of life imprisonment. Each of the three accused appealed from convictions for conspiracy to commit murder and first degree murder.

The Manitoba Court of Appeal dismissed Richard's and Sanford's appeals. The court allowed Cushnie's appeal and ordered a new trial because fresh evidence admitted on the appeal undermined the reliability of the verdicts against her.

Civil Rights - Topic 3146.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Jury secrecy - Cushnie and others were convicted of first degree murder and conspiracy to commit murder - They appealed and sought to introduce fresh evidence on appeal, namely juror notations on edited transcripts - The Manitoba Court of Appeal held that the jury notations constituted evidence (specifically, documentary evidence) and the court could consider the notations notwithstanding the jury secrecy rule - The court admitted the evidence as fresh evidence on Cushnie's appeal only - During deliberations, the jury inadvertently received inadmissible information regarding Cushnie that should have been edited out of the transcripts - The fresh evidence could reasonably have affected the verdicts of guilt against her; therefore, the court quashed her convictions and ordered a new trial - See paragraphs 156 to 212.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused (Donald) was convicted of first degree murder and conspiracy to commit murder - The police had conducted two interviews with Donald which were admitted at trial - During the course of his first interview with Donald, Corporal Sells progressively revealed evidence that police had gathered implicating him in the murder, including evidence of intercepted conversations between another accused (Timothy) and Donald, wherein Donald admitted to the murder, and the fact that Donald's common law wife had provided a statement to the police detailing Donald's confessions to her about the murder - The next day, when the second interview with Sells commenced, Donald was told that Timothy had provided a police statement respecting the murder - Donald immediately agreed to speak with police about the incident - On appeal, Donald argued that the progressive revelation of evidence constituted a "change in circumstances" such that he should have been readvised of his right to counsel and provided with a further opportunity to do so before his second interview with Sells - The Manitoba Court of Appeal rejected this ground of appeal - See paragraphs 40 to 59.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused (Sanford) was convicted of first degree murder and conspiracy to commit murder - She claimed that the police failed in their implementational duties of the right to counsel in that they did not ascertain whether she had sufficient advice - The arresting officer had concluded that Sanford appeared to be under the influence of some type of drug when she was arrested - The Manitoba Court of Appeal rejected this ground of appeal - The police held off questioning Sanford for a number of hours to give her an opportunity to eat and rest - Furthermore, the interviewing officer confirmed with the accused that she had exercised the right to counsel - Her response that her lawyer told her not to say anything was indicative that she was well aware that she had the right to refuse to cooperate with the police investigation - There was no merit to Sanford's assertion that the police were required to ensure that her consultation with counsel was sufficient - See paragraphs 103 to 133.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused (Sanford) was convicted of first degree murder and conspiracy to commit murder - She claimed that the police failed in their implementational duties of the right to counsel in that they should have provided a further opportunity for her to consult counsel just before her video interview - The Manitoba Court of Appeal dismissed the ground of appeal - In part, this argument was premised on the contention that Sanford was under the influence of a drug at the time she spoke to duty counsel - However, the trial judge found that Sanford was aware of the nature of the charges she was facing, exercised her right to counsel before she was placed in a cell and was given the opportunity to eat and rest before the police commenced questioning her - The trial judge viewed the whole of the evidence and concluded that Sanford did not express a desire to speak to a lawyer during the interview - Rather, she stated that her lawyer told her she should not talk - See paragraphs 134 to 136.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See all Civil Rights - Topic 4604 ].

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - The accused (Sanford) was convicted of first degree murder and conspiracy to commit murder - She appealed on the basis, inter alia, that certain evidence should not have been admitted under the co-conspirator exception to the hearsay rule - The Manitoba Court of Appeal rejected the ground of appeal - The court stated that "Contrary to normal procedure, it is not for the judge to determine admissibility of co-conspirator or joint venture hearsay evidence. Rather, at the end of the trial, based on all of the evidence, it is for the jurors in their deliberations to decide the admissibility of the hearsay based on the law as instructed by the trial judge as to how to determine the issue. ... This rule applies subject only to exceptional circumstances which are not present in this case." - See paragraph 151.

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - The accused (Sanford) was convicted of first degree murder and conspiracy to commit murder in her husband's death - She appealed on the basis, inter alia, that certain evidence should not have been admitted under the co-conspirator exception to the hearsay rule - The Manitoba Court of Appeal rejected the ground of appeal - In fact, the trial judge erred in not admitting evidence of Sanford's access to funds in a bank account on the murder as well as the conspiracy charge - The exception to the hearsay rule was based in the nature of the common design or joint criminal venture and not the charge on the indictment - In this case, the ability of Sanford to finance the killing of her husband as she offered could be considered in the determination of whether she participated in the eventual murder of him - See paragraph 153.

Criminal Law - Topic 2788

Attempts, conspiracies, accessories and parties - Evidence - Admissibility of acts done in furtherance of a common design - [See second Criminal Law - Topic 2682 ].

Criminal Law - Topic 4306.1

Procedure - Jury - Disclosure of jury proceedings - [See Civil Rights - Topic 3146.1 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - [See Civil Rights - Topic 3146.1 ].

Criminal Law - Topic 4331

Procedure - Jury - General - Verdicts - Polling of jury - Three accused were convicted of conspiracy to commit murder and first degree murder arising out of a vicious beating death - On appeal, two of the accused argued that the trial judge erred in denying a request to poll the jury - The Manitoba Court of Appeal rejected this ground of appeal - The circumstance of two jurors crying was not sufficient cause for the trial judge to have concern that they were not unanimous - This was a lengthy trial - The trial judge had the opportunity to observe the jury day in and day out - She was in the best position to determine whether there was reason to suspect that the verdict was not unanimous, and deference was owed to that decision - It was not uncommon for jurors to cry when rendering a verdict, regardless of whether it was a conviction or an acquittal - Despite denying this ground, the court noted that, the request having been made to poll the jury, a more considered course of action would have been for the court to hear submissions before determining the issue - See paragraphs 89 to 101.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - The accused (Donald) was convicted of first degree murder and conspiracy to commit murder - Another accused (Timothy) entered into an immunity agreement and testified for the Crown - Donald appealed, arguing, inter alia, that the trial judge erred in refusing his motion for a directed verdict and in instructing the jury regarding the contradictions in Timothy's evidence - Donald acknowledged that in direct examination, Timothy provided testimony that supported the charge of conspiracy to commit murder and the required intent for a conviction of first degree murder - Nevertheless, he argued that when Timothy was cross-examined he recanted his testimony regarding what the parties intended to do when they went to the deceased's house - Therefore, he maintained that: (1) the evidence given by Timothy in direct examination should not have been considered by the trial judge in the motion because of the recantation; (2) correspondingly, the trial judge should have omitted it from the jury's consideration; and, (3) as a result of these errors, the verdict was contrary to law and against the weight of the evidence - The Manitoba Court of Appeal dismissed Donald's appeal - The premise of the first argument confused out-of-court statements of a witness with in-court testimony (an out-of-court statement of a witness was not evidence unless it was adopted in testimony) - Furthermore, the jury instruction suggested by Donald was contrary to established case law - A trier of fact was entitled to accept all, none or some of the testimony of any witness - This included situations where a witness gave inconsistent or contrary testimony - See paragraphs 60 to 79.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused (Donald) was convicted of first degree murder and conspiracy to commit murder - Another accused (Timothy) entered into an immunity agreement and testified for the Crown - Donald appealed, arguing, inter alia, that the trial judge should have given special instructions to the jury regarding Timothy's evidence - Donald relied on the case of R. v. Janvier (W.M.), (2008 Alta. C.A.) - In that case, the court held that the nature of the evidence, although not amounting to such that would require a Vetrovec warning, required the trial judge to draw the jury's attention to those case-specific concerns and why they were significant - The Manitoba Court of Appeal dismissed Donald's appeal - The instruction given by the trial judge in this case was stronger than the one enunciated in Janvier - The trial judge did more than just highlight concerns with Timothy's evidence, she warned them that it required special scrutiny, advised them of the problems with his evidence, said that it should be viewed with great care and caution and that the jury should look for confirmatory evidence - In light of the strong warning, an additional warning, as envisioned in Janvier, was not required - Furthermore, a review of the trial judge's instructions as a whole indicated that she did direct the jury's attention to the main discrepancy that Donald complained of - See paragraphs 80 to 88.

Criminal Law - Topic 4359

Procedure - Charge or directions - Jury or judge alone - Directed verdict of "not guilty" - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 4440

Procedure - Verdicts - Discharges and dismissals - Directed verdicts - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 4560

Procedure - Trial - Motions - Motion for a directed verdict - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 4953

Appeals - Indictable offences - New trials - Grounds - Admission of prejudicial evidence - [See Civil Rights - Topic 3146.1 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused (Donald) was convicted of first degree murder and conspiracy to commit murder - On appeal, he argued, inter alia, that a combination of the following factors should have led the trial judge to conclude that two interviews he had with police, and that were admitted as evidence at trial, were involuntary: Corporal Sells continued questioning him despite the fact that, on a number of occasions during the first interview, he said he did not want to talk to police about the incident; he had been held in a cold cell overnight and the interview room was warm; he did not have his anti-anxiety medication on the day of the second interview; he did not sleep well the prior night and could not eat on the morning of the second interview; and cigarettes were progressively given to him as the interviews unfolded, which he argued were an enticement to cooperate - The Manitoba Court of Appeal found no palpable and overriding error that would justify interfering with the trial judge's decision that the statements were voluntary - See paragraphs 18 to 39.

Police - Topic 3107

Powers - Investigation - Questioning of suspects and witnesses - [See first Civil Rights - Topic 4604 ].

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 13].

R. v. Singh (J.), [2007] 3 S.C.R. 405; 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 28].

R. v. Fitzgerald (A.), [2009] B.C.T.C. Uned. 1599; 71 C.R.(6th) 183; 2009 BCSC 1599, appld. [para. 29].

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. 31].

R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), refd to. [para. 31].

R. v. Spencer (B.S.), [2007] 1 S.C.R. 500; 358 N.R. 278; 237 B.C.A.C. 1; 392 W.A.C. 1; 2007 SCC 11, refd to. [para. 33].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, appld. [para. 43].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, appld. [para. 48].

R. v. McCrimmon (D.R.), [2010] 2 S.C.R. 402; 406 N.R. 152; 293 B.C.A.C. 144; 496 W.A.C. 144; 2010 SCC 36, refd to. [para. 49, footnote 1].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 49, footnote 1].

R. v. G.D.G. (2013), 298 Man.R.(2d) 119; 2013 MBQB 244, refd to. [para. 56].

United States of America v. Sheppard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 70].

R. v. Henderson (W.E.), [2013] 2 W.W.R. 457; 284 Man.R.(2d) 164; 555 W.A.C. 164; 2012 CarswellMan 573; 2012 MBCA 93, refd to. [para. 71].

R. v. O'Kane (P.J.) (2012), 284 Man.R.(2d) 72; 555 W.A.C. 72; 2012 MBCA 82, refd to. [para. 71].

R. v. Barros (R.), [2011] 3 S.C.R. 368; 421 N.R. 270; 513 A.R. 1; 530 W.A.C. 1; 2011 SCC 51, refd to. [para. 71].

R. v. Daley - see R. v. W.J.D.

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 72].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 72].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 73].

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; 2000 SCC 15, refd to. [para. 73].

R. v. Coutu (K.S.) (2008), 231 Man.R.(2d) 275; 437 W.A.C. 275; 2008 MBCA 151, refd to. [para. 73].

R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1; 43 Man.R.(2d) 161, refd to. [para. 74].

R. v. D.R., H.R. and D.W., [1996] 2 S.C.R. 291; 197 N.R. 321; 144 Sask.R. 81; 124 W.A.C. 81, refd to. [para. 78].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 78].

R. v. Morin (1987), 21 O.A.C. 38 (C.A.), refd to. [para. 78].

R. v. Thomas (M.E.) (1993), 32 B.C.A.C. 209; 53 W.A.C. 209; 24 C.R.(4th) 249 (C.A.), refd to. [para. 78].

R. v. Janvier (W.M.) (2008), 432 A.R. 338; 424 W.A.C. 338; 2008 ABCA 223, dist. [para. 82].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 85].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 2000 SCC 11, refd to. [para. 85].

R. v. C.C.Y. (2001), 213 Sask.R. 120; 260 W.A.C. 120; 2001 SKCA 107, refd to. [para. 85].

R. v. Harriott (A.) (2002), 168 O.A.C. 342; 58 O.R.(3d) 1; 161 C.C.C.(3d) 481 (C.A.), refd to. [para. 85].

R. v. Wood (D.W.) et al. (2007), 248 B.C.A.C. 255; 412 W.A.C. 255; 2007 BCCA 563, refd to. [para. 85].

R. v. Truelove (T.), [2010] O.A.C. Uned. 482; 2010 ONCA 608, refd to. [para. 85].

R. v. La Foret, [1980] 1 S.C.R. 869; 30 N.R. 361, refd to. [para. 94].

R. v. Ford (1853), 3 U.C.C.P. 209, refd to. [para. 94].

R. v. Bryan (1970), 1 C.C.C.(2d) 342 (B.C.C.A.), refd to. [para. 95].

R. v. Recalla, [1935] O.R. 479 (C.A.), refd to. [para. 96].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40, refd to. [para. 115].

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. 145].

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. 147].

R. v. Backhouse (J.) (2005), 195 O.A.C. 80 (C.A.), refd to. [para. 148].

R. v. Shea (S.M.) et al. (2011), 309 N.S.R.(2d) 349, 979 A.P.R. 349; 2011 NSCA 107, refd to. [para. 148].

R. v. Duff (G.A.) (1994), 95 Man.R.(2d) 167; 70 W.A.C. 167; 90 C.C.C.(3d) 460 (C.A.), refd to. [para. 151].

Koufis v. R., [1941] S.C.R. 481, refd to. [para. 153].

R. v. Lord (D.C.), [1995] 1 S.C.R. 747; 178 N.R. 152; 53 B.C.A.C. 243; 87 W.A.C. 243, refd to. [para. 153].

R. v. Satkunananthan (S.) et al. (2001), 143 O.A.C. 1 (C.A.), refd to. [para. 153].

Truscott, Re (2007), 226 O.A.C. 200; 2007 ONCA 575, refd to. [para. 177].

R. v. MacMillan (W.) (2002), 176 B.C.A.C. 311; 290 W.A.C. 311; 2002 BCCA 570, appld. [para. 178].

R. v. Bains (L.) et al., [2013] O.T.C. Uned. 950; 2013 ONSC 950, refd to. [para. 178].

R. v. Pan (R.W.); R. v. Sawyer (B.), [2001] 2 S.C.R. 344; 270 N.R. 317; 147 O.A.C. 1; 2001 SCC 42, appld. [para. 185].

R. v. Stolar - see R. v. Nielsen and Stolar.

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46, refd to. [para. 200].

Palmer et al. v. R. - see R. v. Palmer.

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 202].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241;100 C.C.C.(3d) 225; 25 O.R.(3d) 161 (C.A.), refd to. [para. 204].

Authors and Works Noticed:

Watt, David, Manual of Criminal Jury Instructions (2005), p. 105 [para. 152].

Counsel:

M.P. Cook and J.L. Ostapiw, for the appellant, R.L. Cushnie;

L.J.W. Tailleur, for the appellant, D.R. Richard;

R.T. Amy, for the appellant, M.L. Sanford;

N.M. Cutler, for the respondent.

These appeals were heard on December 19, 2012, and September 11, 2013, by Chartier, C.J.M., Steel and Cameron, JJ.A., of the Manitoba Court of Appeal. Cameron, J.A., delivered the following decision for the court on November 28, 2013.