R. v. Richer (R.J.), (1993) 141 A.R. 116 (CA)

• Judge: Fraser, C.J.A., Harradence and Côté, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 24, 1993
• Citations: (1993), 141 A.R. 116 (CA)

R. v. Richer (R.J.) (1993), 141 A.R. 116 (CA);

    46 W.A.C. 116

MLB headnote and full text

Her Majesty The Queen (respondent) v. Roger Jan Richer (appellant)

(Appeal No. 12327)

Indexed As: R. v. Richer (R.J.)

Alberta Court of Appeal

Fraser, C.J.A., Harradence

and Côté, JJ.A.

June 24, 1993.

Summary:

The accused was convicted of first degree murder following a jury trial. The jury found the accused murdered the victim "while committing or attempting to commit" a sexual assault (Criminal Code, s. 231(5)(b)). The accused appealed his conviction.

The Alberta Court of Appeal, Harradence, J.A., dissenting in part, dismissed the appeal. Harradence, J.A., would have substituted a conviction for second degree murder.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to make full answer and defence - The accused was charged with murder - Neither the Crown nor the accused knew, before the first day of trial, that police had intercepted communications - The Crown immediately notified the accused and trial judge - The trial judge offered the accused a short adjournment, a long adjournment to prepare his case or a mistrial - The accused chose a short adjournment and claimed the communications were inad­missible for noncompliance with the notice requirements of s. 189 of the Criminal Code and for denying his right to make full answer and defence (Charter, ss. 7 and 11(d)) - The Alberta Court of Appeal affirmed admissibility of the communica­tions - The accused waived proper notice, where choosing a long adjournment or mistrial would have provided him the functional equivalent of notice - The accused failed to establish his right to make full answer and defence was preju­diced - See paragraphs 67, 91 to 100.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to remain silent - An accused detained pending his murder trial had telephone conversations with his girlfriend - They were recorded with the girlfriend's consent - The accused claimed denial of his right to silence (Charter, s. 7), because the girlfriend was acting as an agent of the state - The Alberta Court of Appeal stated that the girlfriend acted as an agent of the state and elicited information from the accused - However, elicitation of the evidence did not subvert the accused's right to silence where the accused believed the conversations were being recorded - Although the accused chose not to talk directly to police, he effectively chose to speak to authorities by volunteering infor­mation notwithstanding he believed the police were recording his conversations - See paragraphs 71 to 74, 101 to 111.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to remain silent - The Alberta Court of Appeal stated that "if an accused, with­out being tricked by the authorities and thereby prevented from making an informed choice, voluntarily chooses to reveal information in circumstances where he believes that what he is saying is being recorded by the state, he effectively fore­closes any argument that he has been denied the right to remain silent." - See paragraph 74.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - An accused did not argue at trial that intercepted telephone conversations violated his right to silence under s. 7 of the Charter - The issue was raised for the first time on appeal - The Alberta Court of Appeal stated that "I have serious reser­vations about the propriety of raising this argument on appeal where it was not explored in any real sense at trial" - The necessary evidentiary foundation was lacking and the Crown had no opportunity to answer the argument or plead that ex­clusion of the evidence should not occur under s. 24(2) of the Charter - The court determined that, in any event, the accused's right to silence was not violated - See paragraphs 70 to 74.

Criminal Law - Topic 1272

Murder - Murder during commission of other offences - Elements of offence - Section 251(5)(b) of the Criminal Code defined murder as first degree murder where the accused murdered the victim "while committing or attempting to com­mit" a sexual assault - The Alberta Court of Appeal stated that "were it necessary to determine whether sexual activity with a murder victim following the moment of death could ever constitute first degree murder, I would be inclined to the view ... that a murder in these circumstances could fall within the parameters of s. 251(5)(b) providing the Crown has established the necessary linkage between the two acts." - The court also stated that "I am also inclined to the view that murder by stran­gulation intended to force submission to sexual activity would, of and by itself, constitute a sexual assault on the victim, thereby rendering much of the debate on timing academic." - See paragraphs 13, 15.

Criminal Law - Topic 4378

Procedure - Jury charge - Judicial review of - The Alberta Court of Appeal stated that "jury charges are to be assessed as a whole and in the context of the trial itself, including the approach taken by both the Crown and defence ... It is wrong for an appellate court to focus on any single phrase or statement in a jury charge and, applying a literal and a contextual mean­ing, find misdirection. Instead, in deciding whether the jury was properly instructed, the appeal court must consider what the jury would have understood from the whole charge, not from specific sentences or phrases in it." - See paragraph 21.

Criminal Law - Topic 4392

Procedure - Jury charge - Directions re inferences of guilt - The accused was charged with first degree murder - Shortly after the killing, the accused was in pos­session of some of the victim's missing property - The accused claimed she gave it to him to sell on her behalf, as she was in need of money - The trial judge cor­rectly instructed the jury on the inferences which may be drawn from possession of recently stolen property - The accused claimed that the jury was left with the impression that murder could be inferred from proof of recent possession alone - The Alberta Court of Appeal held that the trial judge did not so err - The jury were entitled to infer that the accused stole the property and that in all the circumstances the killing was incidental to that theft - See paragraphs 114 to 116.

Criminal Law - Topic 4853

Appeals - Indictable offences - Grounds of appeal - Grounds raised for first time on appeal - [See Civil Rights - Topic 8584 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or un­supported by evidence - The accused was convicted of first degree murder under s. 251(5)(b) of the Criminal Code, for strangling the victim "while committing or attempting to commit" a sexual assault - The accused claimed that the verdict was unreasonable or unsupported by the evi­dence, because there was insufficient evi­dence to support a determination that the murder occurred while the accused sexual­ly assaulted or attempted to sexually assault the victim - The Alberta Court of Appeal held that the jury's conviction was one that a properly instructed jury, acting judicially, could reasonably have rendered - See paragraphs 53 to 66.

Criminal Law - Topic 5293

Evidence - Witnesses - Inadmissible private communications - "Private com­munications" - What constitutes - The accused repeatedly told his girlfriend that he could not talk candidly with her because their telephone conversations were monitored - The Alberta Court of Appeal raised the issue of whether the accused's subjective belief that his calls were being monitored justified a finding that the calls were not private communications, or whether the Crown must also establish on an objective basis that it would be reason­able for the accused to expect the calls were not private - The court stated that it was unnecessary to resolve the issue, but that the court had "grave doubts" that the telephone conversations were "private communications" under s. 189(5) of the Criminal Code - See paragraph 68.

Criminal Law - Topic 5295

Evidence - Witnesses - Inadmissible private communications - Admissible interceptions - Consent to admit into evidence - [See Criminal Law - Topic 5295.1 ].

Criminal Law - Topic 5295.1

Evidence - Witnesses - Inadmissible private communications - Admissible interceptions - Consent to interception - The accused was detained pending trial for murder - The accused's conversations with his girlfriend were recorded by police - The girlfriend gave advance consent to interception and use of the recordings in court - A judge of the Alberta Court of Appeal stated that "s. 189(1)(b) requires express consent to a private communica­tion that ' has been intercepted ' not one that may be or will be intercepted at some time after the consent is expressed. I find it difficult to ascertain how [the recipient's] consent given prior to the conversation taking place could meet the requirements of the Criminal Code." - See paragraph 94.

Criminal Law - Topic 5301

Evidence and witnesses - Admissibility of private communications - Notice of intention to offer the communication as evidence - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 5528

Evidence - Witnesses - Testimony re­specting the victim - Character of victim -The accused was convicted of first degree murder under s. 251(5)(b) of the Criminal Code for murdering the victim "while committing or attempting to commit" a sexual assault (anal intercourse) - One of the accused's defences was that anal inter­course was consensual, therefore, there was no sexual assault - The victim's boyfriend testified as to the victim's dislike of anal intercourse - The accused claimed the evidence was inadmissible "character" evidence - The Alberta Court of Appeal held that the evidence was admissible and relevant - The evidence was not character evidence, but evidence of disposition or inclination - See paragraph 58.

Cases Noticed:

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417; 59 C.R.(3d) 108; 17 B.C.L.R.(2d) 1; [1987] 6 W.W.R. 97; 43 D.L.R.(4th) 424, refd to. [para. 1].

R. v. Stevens (1984), 2 O.A.C. 239; 11 C.C.C.(3d) 518 (C.A.), refd to. [para. 6].

R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. 1; 38 C.C.C.(3d) 97, refd to. [para. 6].

R. v. Arkell, [1990] 2 S.C.R. 695; 112 N.R. 175, refd to. [para. 6].

R. v. Ganton (G.C.) (1992), 105 Sask.R. 126; 32 W.A.C. 126; 77 C.C.C.(3d) 259 (C.A.), refd to. [paras. 13, 132].

R. v. Chase, [1987] 2 S.C.R. 293; 80 N.R. 247; 82 N.B.R.(2d) 229; 208 A.P.R. 229; 45 D.L.R.(4th) 98; 37 C.C.C.(3d) 97; 59 C.R.(3d) 193, refd to. [para. 15].

R. v. Taylor (1985), 59 A.R. 179; 19 C.C.C.(3d) 156 (C.A.), refd to. [para. 15].

R. v. Young, [1981] 2 S.C.R. 39; 36 N.R. 463, refd to. [para. 21].

R. v. Stoddart (1909), 2 Cr. App. R. 217 (C.A.), refd to. [para. 21].

R. v. Squire, [1977] 2 S.C.R. 13; 10 N.R. 25, refd to. [para. 26].

Mancini v. Director of Public Prosecutions, [1942] A.C. 1 (H.L.), refd to. [para. 26].

R. v. Charbonneau, [1977] 2 S.C.R. 805; 14 N.R. 351, refd to. [para. 26].

R. v. Paul, [1977] 1 S.C.R. 181; 4 N.R. 435, refd to. [para. 29].

R. v. McIver, [1965] 1 C.C.C. 210, affd. [1966] S.C.R. 254, refd to. [para. 29].

R. v. Dubois (1979), 17 A.R. 541; 49 C.C.C.(2d) 501 (C.A.), affd. [1980] 2 S.C.R. 21; 32 N.R. 176; 23 A.R. 116, refd to. [para. 29].

R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83; 66 C.C.C.(3d) 454, refd to. [para. 45].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397; 3 C.R.(4th) 302, refd to. [para. 49].

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113; [1987] 4 W.W.R. 193; 57 C.R.(3d) 97; 32 C.C.C.(3d) 481, refd to. [para. 51].

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1, refd to. [para. 57].

R. v. Soares (1987), 19 O.A.C. 97; 34 C.C.C.(3d) 403 (C.A.), refd to. [para. 58].

R. v. Smithers, [1978] 1 S.C.R. 506; 15 N.R. 287, refd to. [para. 62].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 65].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 64 C.R.(3d) 1; 41 C.C.C.(3d) 385; 28 B.C.L.R.(2d) 145, refd to. [para. 65].

R. v. Rodney (1984), 12 C.C.C.(3d) 195 (B.C.S.C.), refd to. [para. 68].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189; 8 C.R.R.(2d) 274; [1992] 1 W.W.R. 289; 9 C.R.(4th) 1; 84 Alta. L.R.(2d) 1; 68 C.C.C.(3d) 308, refd to. [para. 70].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; [1990] 5 W.W.R. 1; 57 C.C.C.(3d) 1; 77 C.R.(3d) 145; 49 C.R.R. 114; 47 B.C.L.R.(2d) 1, refd to. [para. 70].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 12].

R. v. Schultz (1991), 4 B.C.A.C. 9; 9 W.A.C. 9; 67 C.C.C.(3d) 360 (C.A.), refd to. [para. 72].

R. v. Brown (1992), 127 A.R. 89; 20 W.A.C. 89 (C.A.), refd to. [para. 72].

R. v. Douglas (1977), 33 C.C.C.(2d) 395 (Ont. C.A.), refd to. [para. 95].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 99].

R. v. Kowlyk, [1988] 2 S.C.R. 59; 86 N.R. 195; 55 Man.R.(2d) 1; 43 C.C.C.(3d) 1, refd to. [para. 114].

R. v. Coffin, [1956] S.C.R. 191, refd to. [para. 114].

R. v. Aflalo; R. v. Roy (1991), 40 Q.A.C. 161; 69 C.C.C.(3d) 230 (C.A.), refd to. [para. 114].

R. v. Kirkness, [1990] 3 S.C.R. 74; 116 N.R. 81; 69 Man.R.(2d) 81; 60 C.C.C.(3d) 97; 1 C.R.(4th) 91, refd to. [para. 125].

R. v. Abraham (1974), 30 C.C.C.(2d) 332 (Que. C.A.), refd to. [para. 142].

Colpitts v. R., [1965] S.C.R. 739; 52 D.L.R.(2d) 416, refd to. [para. 143].

R. v. Nantais, [1966] 4 C.C.C. 108 (C.A.), refd to. [para. 144].

R. v. Johnston (1991), 47 O.A.C. 66; 64 C.C.C.(3d) 233 (C.A.), refd to. [para. 144].

R. v. Kent, Sinclair and Gode (1986), 40 Man.R.(2d) 160; 27 C.C.C.(3d) 405 (C.A.), refd to. [para. 144].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234; 5 C.R.(4th) 351; 64 C.C.C.(3d) 193, refd to. [para. 144].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(d) [para. 71]; sect. 24(2) [para. 72].

Criminal Code, R.S.C. 1985, c. C-46, sect. 182(b) [para. 10]; sect. 189(1)(a) [para. 93]; sect. 189(1)(b) [para. 94]; sect. 189(5) [para. 93]; sect. 231(5)(b) [para. 117]; sect. 686(1)(a)(i) [para. 53].

Authors and Works Noticed:

Sopinka, Lederman and Bryant, Law of Evidence in Canada, p. 140 [para. 142].

Counsel:

P.W. Martin, Q.C., for the respondent;

John E. Phillips, for the appellant.

This appeal was before Fraser, C.J.A., Harradence and Côté, JJ.A., of the Alberta Court of Appeal.

On June 24, 1993, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Fraser, C.J.A. (Côté, J.A., concurring) - see paragraphs 1 to 77;

Harradence, J.A., dissenting - see para­graphs 78 to 144.