R. v. Rodgerson (J.), (2015) 473 N.R. 1 (SCC)

• Judge: Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 14, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 473 N.R. 1 (SCC);2015 SCC 38;[2015] SCJ No 38 (QL);[2015] 2 SCR 760

R. v. Rodgerson (J.) (2015), 473 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. JL.013

Her Majesty the Queen (appellant) v. Jason Rodgerson (respondent)

(35947; 2015 SCC 38; 2015 CSC 38)

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

Supreme Court of Canada

Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.

July 17, 2015.

Summary:

The accused was charged with first degree murder and convicted of the included offence of second degree murder. The trial judge imposed a sentence of life imprisonment without eligibility for parole for 14 years. The accused appealed his conviction and sentence.

The Ontario Court of Appeal, MacPherson, J.A., dissenting, held that the trial judge misdirected the jury on the use it could make of the accused's post-offence conduct and the error was fatal to the conviction. The court ordered a new trial on the charge of second degree murder. See (2014), 319 O.A.C. 254. The Crown appealed.

The Supreme Court of Canada dismissed the appeal.

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - The Supreme Court of Canada stated that "[c]ertainly, it is within the Crown's discretion to prosecute charges where the evidence would permit a reasonable jury to convict. However, some semblance of a cost-benefit analysis would serve the justice system well. Where the additional or heightened charges are marginal, and pursuing them would necessitate a substantially more complex trial process and jury charge, the Crown should carefully consider whether the public interest would be better served by either declining to prosecute the marginal charges from the outset or deciding not to pursue them once the evidence at trial is complete. While trial judges must proceed with caution, I see no difficulty in questioning Crown counsel about the efficacy of proceeding with a more serious charge or charges in circumstances where the evidence surpasses the directed verdict threshold, but only barely. Apart from increasing the length and complexity of the jury charge and the burden on the jury in its deliberation process, charging a more serious offence risks deflecting the jury's attention away from the crucial issue or issues upon which the case truly hinges." - See paragraphs 45 and 46.

Criminal Law - Topic 1263

Murder - General principles - Intention - [See Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 4350

Procedure - Charge or directions to jury - General - [See Criminal Law - Topic 26 and Criminal Law - Topic 4350.1 ].

Criminal Law - Topic 4350

Procedure - Charge or directions to jury - General - The Supreme Court of Canada stated that "[w]hile the Crown and defence counsel both have roles to play, the role of the trial judge is the most vital, and the most difficult, in formulating jury instructions. A trial judge must strike a crucial balance by crafting a jury charge that is both comprehensive and comprehensible. Recognizing the difficulty inherent in this task, this Court has 'repeatedly endorsed' the functional approach to reviewing jury charges ... . This functional approach is designed to 'ensure that the yardstick by which we measure the fitness of a [jury charge] does not become overly onerous', in order to reduce 'the proliferation of very lengthy charges in which judges often quote large extracts from appellate decisions simply to safeguard verdicts from appeal' ... . Under the functional approach, the trial judge's duty is to 'decant and simplify' ... . Over-charging is just as incompatible with this duty as is under-charging." - See paragraph 50.

Criminal Law - Topic 4350.1

Procedure - Charge or directions - Jury or judge alone - Use of standard charge - The Supreme Court of Canada commented on the detrimental impact of increasingly long and complex jury charges on the criminal justice system - The court stated that Crown, defence counsel, and the trial judge each bore a responsibility for ensuring that jury charges were as clear and comprehensible as possible - The court stated that "[r]ote, repetitive and generic charges are of little value, and are often harmful to the jury's comprehension. Indeed, they can and do lead to instruction that is all but meaningless. Charges should be thoughtfully tailored to focus on the key evidence and the key issues that are relevant in the particular context of the case." - See paragraphs 42 and 43.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - The Supreme Court of Canada stated that "[d]efence counsel, while of course seeking to advance the client's defence by all lawful and ethical means, also has an obligation to assist the trial judge in crafting a jury charge that provides clear and comprehensible instructions on the defences that are actually implicated by the defence theory of the case." - See paragraph 49.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The accused was convicted of the second-degree murder of Amber Young - On appeal, the accused submitted, inter alia, that the trial judge erred in his instructions regarding the use the jury could make of the accused's post-offence conduct - A majority of the Court of Appeal concluded that (1) evidence of the accused's flight from and lies to the police was irrelevant to determining whether he had the requisite intent for murder; (2) the trial judge erred by instructing the jury that it could consider evidence of his flight from and lies to the police in assessing the issue of intent; (3) evidence of the accused's concealment of Young's body and clean-up of the scene of her death was relevant to assessing the issue of intent, but the trial judge failed to instruct the jury on the limited way in which this evidence could be used for that purpose; and (4) the curative proviso (Criminal Code, s. 686(1)) did not apply - As a result, the majority ordered a new trial - The Crown appealed - The Supreme Court of Canada dismissed the appeal - It was open to the jury to conclude that the accused sought to conceal Young's body and clean up the scene in order to conceal the nature and extent of her injuries and the degree of force required to inflict them - This in turn could have been relevant on the issue of whether he had the requisite intent for murder: the more severe the injuries, and the more force required to inflict them, the stronger the inference that he intended to kill, or cause bodily harm which he knew was likely to cause death - This chain of inferential reasoning was narrow, and the relevance of the evidence was attenuated - The trial judge should have assisted the jury with a specific instruction on how to link the concealment and clean-up evidence with the issue of intent - His failure to do so was a legal error, and one that was sufficiently serious, in conjunction with the erroneous instructions on the accused's flight from and lies to the police, that the curative proviso could not apply.

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See Criminal Law - Topic 4399.9 ].

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 Criminal Law - Topic 4399.9 ].

Cases Noticed:

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 23].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 28].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 25].

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. 30].

R. v. Jack (B.) (1993), 88 Man.R.(2d) 93; 51 W.A.C. 93 (C.A.), affd. [1994] 2 S.C.R. 310; 168 N.R. 13; 95 Man.R.(2d) 158; 70 W.A.C. 158, refd to. [para. 31].

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. 40].

R. v. Hebert (D.M.), [1996] 2 S.C.R. 272; 197 N.R. 277; 77 B.C.A.C. 1; 126 W.A.C. 1, refd to. [para. 42].

R. v. Mathisen (P.J.) (2008), 242 O.A.C. 139; 239 C.C.C.(3d) 63; 2008 ONCA 747, refd to. [para. 48, footnote 1].

R. v. Pintar (J.) (1996), 93 O.A.C. 172; 30 O.R.(3d) 483 (C.A.), refd to. [para. 48].

R. v. Mack (D.R.) (2014), 462 N.R. 380; 580 A.R. 41; 620 W.A.C. 41; 2014 SCC 58, refd to. [para. 50].

R. v. McNeil (J.) (2006), 216 O.A.C. 97; 84 O.R.(3d) 125 (C.A.), refd to. [para. 52].

R. v. Zebedee (J.) et al. (2006), 212 O.A.C. 23; 81 O.R.(3d) 583 (C.A.), refd to. [para. 54].

Authors and Works Noticed:

Granger, Christopher, The Criminal Jury Trial in Canada (2nd Ed. 1996), p. 6 [para. 30].

Watt, David, Helping Jurors Understand (2007), p. 82 [para. 53].

Watt, David, Ontario Specimen Jury Instructions (Criminal) (2003), generally [para. 53].

Counsel:

Megan Stephens, for the appellant;

Christopher Hicks and Kristin Bailey, for the respondent.

Solicitors of Record:

Attorney General of Ontario, Toronto, Ontario, for the appellant;

Hicks Adams, Toronto, Ontario, for the respondent.

This appeal was heard on January 14, 2015, by Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada. Moldaver, J., delivered the following decision for the court, in both official languages, on July 17, 2015.