R. v. Roulette (K.T.), (2015) 315 Man.R.(2d) 96 (CA)

• Judge: MacInnes, Beard and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 15, 2014
• Jurisdiction: Manitoba
• Citations: (2015), 315 Man.R.(2d) 96 (CA);2015 MBCA 9

R. v. Roulette (K.T.) (2015), 315 Man.R.(2d) 96 (CA);

      630 W.A.C. 96

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. FE.006

Her Majesty The Queen (respondent) v. Kenneth Toby Roulette (accused/appellant)

(AR 13-30-08071; 2015 MBCA 9)

Indexed As: R. v. Roulette (K.T.)

Manitoba Court of Appeal

MacInnes, Beard and Monnin, JJ.A.

January 26, 2015.

Summary:

The accused was charged with two counts of first degree murder. He alleged that the Crown had delayed and/or provided incomplete disclosure which resulted in significant delay in the proceeding and which impeded his ability to defend himself, all while he was incarcerated pending trial. The accused applied under s. 24(1) of the Charter for a stay of proceedings based on violations of his ss. 7, 10(b) and 11(b) rights.

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 298 Man.R.(2d) 12, dismissed the application. There were no Charter violations. The Crown applied to introduce into evidence the preliminary hearing testimony of a witness who had subsequently died.

The Manitoba Court of Queen's Bench, in a decision reported at (2013), 298 Man.R.(2d) 83, held that the testimony was admissible. The accused was found guilty. He appealed the conviction.

The Manitoba Court of Appeal dismissed the appeal.

Civil Rights - Topic 3130

Trials - Due process, fundamental justice and fair hearings - Delay (Charter, s. 7) - [See Civil Rights - Topic 3133 ].

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Right of accused to make full answer and defence - Roulette was charged with two counts of first degree murder in March 2010 - His trial was scheduled to begin in September 2013 - Roulette argued that the significant delay in the proceeding was caused by the Crown providing sporadic and incomplete disclosure - He argued that the delay impeded his ability to defend himself, in violation of his s. 7 Charter rights - Roulette applied for a stay of proceedings under s. 24(1) of the Charter - The trial judge dismissed the application, finding that there was no violation of s. 7 - While the Crown's approach to disclosure had been tardy and piecemeal, it had for the most part been provided to defence counsel prior to the preliminary inquiry and certainly prior to the commencement of trial - The Manitoba Court of Appeal dismissed Roulette's appeal, stating "I am not persuaded that the judge committed any error of law, or that his finding was unreasonable. As well, his decision, in my opinion, is not wrong, and certainly is not so clearly wrong as to amount to an injustice. There is no basis for appellate intervention in respect of those decisions." - See paragraphs 38, 42 and 43.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - Roulette was charged with two counts of first degree murder in March 2010 - His trial was scheduled to begin in September 2013 - Roulette argued that the significant delay in the proceeding was caused by the Crown providing sporadic and incomplete disclosure - He applied under s. 24(1) of the Charter for a stay of proceedings on the grounds that he was deprived of his s. 11(b) right to be tried within a reasonable time - The trial judge dismissed the application - He found that three months of excessive delay had been caused by the Crown's dilatory disclosure, but the delay was not so excessive that it outweighed the societal interest in having serious charges decided on their merits after a trial - The Manitoba Court of Appeal dismissed Roulette's appeal, stating "I am not persuaded that the judge committed any error of law, or that his finding was unreasonable. As well, his decision, in my opinion, is not wrong, and certainly is not so clearly wrong as to amount to an injustice. There is no basis for appellate intervention in respect of those decisions." - See paragraphs 39 to 43.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3270 ].

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 3587

Preliminary inquiry - Evidence - Admission at trial of evidence taken at preliminary inquiry - Roulette was charged with two counts of first degree murder - At his preliminary hearing, a Crown witness (Glow) gave testimony that implicated Roulette in the deaths - Glow was a drug addict with a criminal record - He did not come forward and tell police what he had seen until one year after the murders, and only when he was in jail facing weapons and drug offences - He received immunity in exchange for his testimony and was placed in the witness protection program where he remained until dying of natural causes in March 2013 - The Crown applied to introduce into evidence the audiotape and transcript of Glow's testimony at the preliminary hearing - Defence counsel argued that he was not given a full opportunity to cross-examine Glow at the preliminary hearing due to a lack of disclosure provided by the Crown at that time - The trial judge held that the testimony was admissible under s. 715 of the Criminal Code - Defence counsel's factual complaints did not support a finding of trial unfairness - The deficient disclosure was either not material to the issues or was available in other material which had been disclosed - The evidence was also admissible under the principled exception to the hearsay rule - There was enough confirmatory evidence to satisfy the threshold reliability test - The Manitoba Court of Appeal dismissed Roulette's appeal - The trial judge committed no error - See paragraphs 62 to 73.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - Roulette was charged with two counts of first degree murder - Two Crown witnesses testified that Roulette made statements to each of them admitting to the murders - Roulette was found guilty - He appealed, arguing that the trial judge erred by allowing the introduction of evidence that he had been in custody, had the number "187" tattooed on his arm (which purportedly represented a murder-for-hire gang of which Roulette was the leader), and was involved in drug trafficking - The Manitoba Court of Appeal dismissed the appeal - The evidence was not prejudicial in the legal sense, but its probative value was significant - If believed by the jury, it could lend credence to the evidence of the Crown witnesses, and explain that Roulette was prepared to contact each of them following the murders because he knew each of them and knew that they themselves were involved in criminal activity - The evidence could also have led the jury to the conclusion that the murders were committed as part of a job and were therefore planned and deliberate, thus supporting a conclusion of guilt for first degree murder - The trial judge's caution to the jury as to how the bad character evidence could be used was clear and correct - See paragraphs 109 to 112.

Criminal Law - Topic 4394

Procedure - Charge or directions - Jury or judge alone - Directions re inferences from failure to call evidence - Roulette was charged with first degree murder in the deaths of Baptiste and Henderson - Two Crown witnesses (Glow and Asham) testified that Roulette had made statements to each of them admitting to the murders - Roulette was found guilty - He appealed, arguing that the trial judge erred by instructing the jury that they could not draw an adverse inference from the Crown's decision not to call (a) three witnesses who could have given evidence pertaining to the sale by Glow of a television stolen from Baptiste's apartment at the time of the murders, and (b) a fourth witness who was with Asham when Asham allegedly received a phone call from Roulette wherein Roulette admitted to the murders - The Manitoba Court of Appeal dismissed the appeal - As a general rule, the failure of a party to call a witness at trial did not support an adverse inference - As such, it was improper for counsel or the judge to invite the jury to do so - There were exceptions to the general rule, but none applied in this case - See paragraphs 88 to 94.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3133 and Civil Rights - Topic 3270 ].

Criminal Law - Topic 5320

Evidence and witnesses - Inferences - From failure to call witness - [See Criminal Law - Topic 4394 ].

Criminal Law - Topic 5409

Evidence and witnesses - Witnesses - Duty of Crown to call witnesses or adduce certain evidence from a witness - Roulette was charged with first degree murder in the deaths of Baptiste and Henderson - A Crown witness (Glow) testified that Roulette had made statements to him admitting to the murders - Glow had been involved in the sale of a television stolen from Baptiste's apartment at the time of the murders - Roulette was found guilty - He appealed, arguing that the Crown acted "contrary to law" by not producing certain witnesses at the trial, particularly Sorensen, who was possibly involved in the sale of the stolen television - The Manitoba Court of Appeal dismissed the appeal - Roulette was made aware of Sorensen's location (in a British Columbia prison) in the early days of the trial, which was scheduled to continue for five weeks - Defence counsel did not attempt to contact Sorensen or take any steps to have him attend as a witness - The Crown was not obliged to call witnesses in order to accommodate an accused - In any event, Sorensen was at best a tangential witness and his evidence might or might not have provided contradictory evidence to that of Glow beyond the contradictory evidence that had been provided by Glow's girlfriend - See paragraphs 122 to 137.

Criminal Law - Topic 5420.1

Evidence and witnesses - Witnesses - Admissibility of evidence previously taken where witness unavailable or unable to testify - [See Criminal Law - Topic 3587 ].

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - [See Criminal Law - Topic 4379 ].

Criminal Law - Topic 5450

Evidence and witnesses - Evidence respecting the accused - Character of accused - Jury charge - [See Criminal Law - Topic 4379 ].

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See Criminal Law - Topic 3587 ].

Evidence - Topic 2401

Special modes of proof - Presumptions - Specific presumptions - Inference from failure to call or adduce available evidence - [See Criminal Law - Topic 4394 ].

Cases Noticed:

R. v. Byron (M.C.) (2001), 156 Man.R.(2d) 154; 246 W.A.C. 154; 2001 MBCA 81, refd to. [para. 16].

R. v. Evans (E.D.) (2014), 306 Man.R.(2d) 9; 604 W.A.C. 9; 2014 MBCA 44, refd to. [para. 16].

R. v. Babos (A.), [2014] 1 S.C.R. 309; 454 N.R. 86; 2014 SCC 16, refd to. [para. 17].

R. v. Lewis (I.A.) (2009), 256 O.A.C. 268; 2009 ONCA 874, refd to. [para. 68].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258, refd to. [para. 69].

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1; 2000 SCC 29, refd to. [para. 89].

Counsel:

G.G. Brodsky, Q.C., for the appellant;

D.L. Carlson and A.Y. Kotler, for the respondent.

This appeal was heard on October 15, 2014, before MacInnes, Beard and Monnin, JJ.A., of the Manitoba Court of Appeal. MacInnes, J.A., delivered the following judgment for the court on January 26, 2015.