R. v. Rojas (M.A.) et al., (2008) 260 B.C.A.C. 258 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 24, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 260 B.C.A.C. 258 (SCC);2008 SCC 56

R. v. Rojas (M.A.) (2008), 260 B.C.A.C. 258 (SCC);

    439 W.A.C. 258

MLB headnote and full text

[French language version follows English language version]

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

.........................

Temp. Cite: [2008] B.C.A.C. TBEd. OC.045

Miguel Rojas (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Ontario (intervenor)

(32080)

Hugo Rojas (appellant) v. Her Majesty The Queen (respondent)

(32087; 2008 SCC 56; 2008 CSC 56)

Indexed As: R. v. Rojas (M.A.) et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Charron and Rothstein, JJ.

October 24, 2008.

Summary:

The accused were convicted of second degree murder. But for two admissions made by each accused to a witness of questionable motives, the Crown's case was largely circumstantial. The accused appealed, submitting that the trial judge erred in directing the jury, improperly limiting cross-examination of a Crown witness and improperly admitting hearsay evidence.

The British Columbia Court of Appeal, in a judgment reported (2006), 225 B.C.A.C. 32; 371 W.A.C. 32, dismissed the appeal. The accused appealed, submitting that "the trial judge erred in permitting the jury to use evidence of out-of-court statements admissible against only one accused to bolster the credibility of an unsavoury witness with respect to matters implicating the co-accused" and "it was wrong for the trial judge to instruct the jury that exculpatory statements do not necessarily carry the same persuasive weight as inculpatory statements".

The Supreme Court of Canada dismissed the appeals. The trial judge did not err in instructing the jury on how to assess the credibility of the unsavoury witness. Although it was best to avoid giving a jury a "mixed statement" instruction (i.e., that incriminating parts of a statement were likely to be true ("otherwise why say them"), while exculpatory parts did not necessarily carry the same weight), the "mixed statement" instruction, in the context of this case, did not constitute reviewable error.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - [See Criminal Law - Topic 4375 ].

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - Two accused were convicted of second degree murder - But for the evidence of an accomplice/witness, who testified that each accused admitted the killing, the Crown's case was largely circumstantial - The trial judge gave a Vetrovec warning respecting the witness's testimony, instructing that given the many reasons for doubting the witness's veracity, they should look for confirmatory evidence - Some of the material parts of the witness's testimony in respect of which the trial judge instructed the jury to look for independent confirmatory evidence included out-of-court statements admissible against only one of the accused - One accused (Miguel) submitted that the credibility of the witness was bolstered by evidence that was only admissible against the other accused (Hugo), which had the effect of improperly bolstering the credibility of the witness respecting his admission also - The accused alleged that the jury should have been instructed to make separate and distinct assessments of the witness's credibility respecting each accused - The Supreme Court of Canada rejected the submission - The accused were tried together - It was inevitable, and permissible, that the jury's assessment of the overall credibility of the witness would be influenced by the totality of the evidence that they heard, including evidence solely relating only to one accused - The court stated that "any risk of prejudice of the kind alleged here was amply guarded against by the trial judge's repeated instructions to the jury to decide the case against each accused separately, based on a careful consideration of the evidence admissible as against that accused" - See paragraphs 16 to 26.

Criminal Law - Topic 4375

Procedure - Charge or directions - Jury or judge alone - Directions regarding incriminating statements by accused or co-accused - Two accused were convicted of second degree murder - But for the evidence of a witness that the accused admitted killing the victim, the Crown's case was largely circumstantial - The accused both made statements that were both inculpatory and exculpatory - The trial judge instructed the jury that "it often occurs that statements of an incriminating nature such as admissions or confessions are likely to be true, otherwise why say them. On the other hand, excuses for one's own behaviour do not necessarily carry the same persuasive weight." (i.e. Duncan instruction) - The Supreme Court of Canada held that a "Duncan instruction" should not be used in Canada - It was dangerous to instruct a jury to weigh inculpatory and exculpatory statements differently - Such "common sense" comments were best left to counsel - However, whether a "Duncan instruction" resulted in an unfair trial depended entirely upon the particular words used and their context - The court stated that "where the instruction is couched in terms of a legal presumption, the prejudicial effect may be difficult to overcome. In this case, ..., having regard to the permissive wording of the impugned instruction, the charge as a whole and the nature of the statements in issue, it is my view that the instruction was more unfortunate than fatal. ... When viewed in context, I am satisfied that the Duncan instruction could not have misled the jury. It was clear from the charge that the burden of proof did not shift to [the accused], that any exculpatory statement need only raise a reasonable doubt, and that the accused were entitled to the benefit of any such doubt. In commenting on the relative weight that may be attributed to the statements, the trial judge did not exceed his function. It was clear that the assessment of the reliability of the statements was left entirely with the jury." - See paragraphs 27 to 47.

Criminal Law - Topic 4375.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding exculpatory statements by accused - [See Criminal Law - Topic 4375 ].

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See Criminal Law - Topic 4354 ].

Criminal Law - Topic 5353.4

Evidence and witnesses - Confessions and voluntary statements - Statements both inculpatory and exculpatory - [See Criminal Law - Topic 4375 ].

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 3].

R. v. Perciballi (P.) et al. (2001), 146 O.A.C. 1; 54 O.R.(3d) 346 (C.A.), affd. [2002] 2 S.C.R. 761; 289 N.R. 376; 161 O.A.C. 201; 2002 SCC 51, refd to. [paras. 3, 21].

R. v. Duncan (1981), 73 Cr. App. Rep. 359 (C.A.), refd to. [para. 4].

R. v. Baskerville, [1916] 2 K.B. 658 (C.A.), refd to. [para. 16].

R. v. Sharp, [1988] 1 W.L.R. 7; 88 N.R. 47 (H.L.), refd to. [para. 31].

R. v. Aziz (K.), [1995] 2 Cr. App. Rep. 478; 185 N.R. 379 (H.L.), refd to. [para. 31].

R. v. Ryznar, [1986] 6 W.W.R. 210; 43 Man.R.(2d) 143 (C.A.), refd to. [para. 32].

R. v. Harrison (P.W.) (2001), 150 B.C.A.C. 247; 245 W.A.C. 247; 156 C.C.C.(3d) 117; 2001 BCCA 272, refd to. [para. 32].

R. v. Leblanc (2001), 162 C.C.C.(3d) 74 (Que. C.A.), refd to. [para. 32].

R. v. Samuels (J.G.) (2005), 198 O.A.C. 109; 196 C.C.C.(3d) 403 (C.A.), refd to. [para. 32].

R. v. David (R.E.) (2006), 230 B.C.A.C. 280; 380 W.A.C. 280; 213 C.C.C.(3d) 64; 2006 BCCA 412, apprvd. [para. 33].

R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C. 97; 127 C.C.C.(3d) 449, refd to. [para. 35].

R. v. Hodgson - see R. v. M.C.H.

R. v. Simpson and Ochs, [1988] 1 S.C.R. 3; 81 N.R. 267, refd to. [para. 36].

R. v. Hughes, [1942] S.C.R. 517, refd to. [para. 37].

R. v. Gunning (J.J.), [2005] 1 S.C.R. 627; 333 N.R. 286; 211 B.C.A.C. 51; 349 W.A.C. 51; 2005 SCC 27, refd to. [para. 38].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 43].

Counsel:

Gil D. McKinnon, Q.C., for the appellant, Miguel Rojas;

Matthew A. Nathanson and Andrew Nathanson, for the appellant, Hugo Rojas;

Ursula Botz, for the respondent;

John S. McInnes, for the intervenor.

Solicitors of Record:

Gil D. McKinnon, Q.C., Vancouver, B.C., for the appellant, Miguel Rojas;

Matthew A. Nathanson, Vancouver, B.C., for the appellant, Hugo Rojas;

Attorney General of British Columbia, Vancouver, B.C., for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervenor.

These appeals were heard on April 22, 2008, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On October 24, 2008, Charron, J., delivered the following judgment of the Court in both official languages.