R. v. Sarrazin (R.) et al., (2005) 196 O.A.C. 224 (CA)

• Judge: Weiler, Sharpe and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 15, 2005
• Jurisdiction: Ontario
• Citations: (2005), 196 O.A.C. 224 (CA)

R. v. Sarrazin (R.) (2005), 196 O.A.C. 224 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. AP.049

Her Majesty The Queen (respondent) v. Robert Sarrazin, Darlind Jean and Wolfson Cetoute (appellants)

(C35003; C36353; C36384)

Indexed As: R. v. Sarrazin (R.) et al.

Ontario Court of Appeal

Weiler, Sharpe and Blair, JJ.A.

April 15, 2005.

Summary:

A gang-related shooting resulted in the victim's death 26 days later. Three francophone accused were jointly tried in a bilingual jury trial. Two of the accused had sought a trial in English. The other sought a trial in French. Two accused (Sarrazin and Jean) were convicted of second degree murder and weapons offences. The third accused (Cetoute) was convicted of manslaughter. The accused appealed their convictions. All three argued that a bilingual trial violated their Criminal Code right to be tried in the language of their choice. They argued that the proceedings should have been severed, with separate trials in French (Jean) and English (Sarrazin and Cetoute). They also submitted that the trial judge erred (1) in admitting out-of-court statements by the victim, made between the date of the shooting and the date of his death; (2) in instructing the jury that a not guilty verdict must be based only on evidence that they accepted; and (3) in instructing the jury respecting eyewitness identification, motive and reasonable doubt. One accused (Cetoute) challenged the admissibility of a number of statements made by him.

The Ontario Court of Appeal allowed the appeal and ordered a new trial for all three accused. The trial judge's admission of the deceased's statements, together with his instructions to the jury that even a verdict of not guilty must be based only on the evidence that they accepted, constituted reversible error requiring a new trial. The court opined that a bilingual trial, in the circumstances of this case, did not violate the accused's right to be tried in the language of their choice. The court dismissed all other grounds of appeal.

Civil Rights - Topic 2947

Language - Criminal proceedings - Right to trial in either official language - Three francophone accused were jointly tried before a judge and jury - Two requested a trial in French - The third requested a trial in English - The trial judge ordered a bilingual trial where the judge and jury were bilingual - Both English and French were utilized, with simultaneous translation available to everyone except the judge and jury - The accused submitted that a bilingual trial violated their Criminal Code right to be tried in the official language of their choice; that the judge should have granted severance and ordered separate French and English trials - The Ontario Court of Appeal held that ss. 530 and 530.1, which provided the statutory framework for an accused's linguistic rights at trial, "intended to provide ... a trial process where the judge or judge and jury are bilingual (s. 530) and in which the working language of the trial is both French and English, depending upon who is speaking (s. 530.1(a)-(e)), with interpretation and translation services available to be utilized where needed (s. 530.1(f)-(h)) - The trial judge did not err in exercising his discretion to refuse severance - The court stated that "where different accused, who are alleged to have participated in a common enterprise or conspiracy seek to be tried in different official languages of choice, severance is not mandatory" - The trial judge committed no error in considering the linguistic and other factors and exercising his discretion to order a bilingual trial - See paragraphs 37 to 70.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - The Ontario Court of Appeal held that police questioning an accused who was asserting his right to remain silent were entitled to continue questioning the accused to the point where he was no longer able to exercise his free will in choosing whether or not to speak to them - See paragraph 95.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - The Ontario Court of Appeal set out a non-exhaustive list of the combination of factors to be examined in determining whether or not a person was detained by police - See paragraph 88.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - Police lacked reasonable and probable grounds to obtain an arrest warrant for a shooting suspect - The suspect was led to believe he was being interviewed as a witness - The conversation moved to the police vehicle at the officer's request - The suspect then agreed, at the officer's request, to go with them to the police station, where he was placed in a locked room and gave a K.G.B. statement effectively confirming what he had said earlier - At no time was the accused told he was a suspect or advised of his right to counsel - The Ontario Court of Appeal held that the trial judge did not err in finding that the suspect was never detained and, accordingly, there was no violation of his Charter rights - See paragraphs 85 to 90.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - A jury was instructed that facts not accepted by them must not be considered in arriving at a verdict - The Crown conceded that this statement, in isolation, constituted a "Miller" error because it had "the effect of eliminating from their consideration evidence which was neither accepted nor rejected, upon which they entertained a reasonable doubt, and to consider only the residual evidence arriving at their verdict" - The Ontario Court of Appeal affirmed that the jury instruction was a fatal error, because the effect of the instruction was to tell the jury that they must not consider the absence of evidence when considering their verdicts - The court stated that "on the whole, the jury was arguably left with the impression that they were not entitled to consider the absence of evidence as a factor that might give rise to a reasonable doubt" - See paragraphs 117 to 122.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - The Ontario Court of Appeal stated that "it is incumbent upon a trial judge to give the jury a general warning as to the dangers associated with [identification] evidence, and in addition - where the circumstances call for it - to caution the jury as to the specific frailties of the evidence in the case at hand, thus relating the need to be aware of the general dangers to the facts of the case" - See paragraph 108.

Criminal Law - Topic 4482

Procedure - Trial - Joint or separate trials of two or more persons - [See Civil Rights - Topic 2947 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - A shooting victim died 26 days later - He gave a series of statements to police before he died - The trial judge admitted the statements in evidence under the principled exception to the hearsay rule (necessity and reliability) - The Ontario Court of Appeal held that the trial judge erred in admitting the statements - Although they were necessary, because the victim died, they failed to meet the reliability threshold - The circumstances surrounding the making of the statements did not provide the circumstantial guarantee of trustworthiness and the trial judge erred in considering extrinsic evidence unrelated to the circumstances surrounding the making of the statements - Some statements were made while the victim was under the influence of morphine - The police acknowledged that some of the information in the statements came from the victim's brother and from what he had heard through the grapevine - The danger of the statements being contaminated was too great for them to meet the threshold reliability test for admissibility - None of the statements were videotaped or under oath or affirmation - The victim was not warned of the importance of telling the truth - There was potential for collusion and a motive to fabricate (victim and accused members of rival gangs) - See paragraphs 71 to 84.

Cases Noticed:

R. v. Beaulac (J.V.) (1999), 238 N.R. 131; 121 B.C.A.C. 227; 198 W.A.C. 227; 134 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 6].

R. v. Edwards, [1998] Q.J. No. 1420 (S.C.), refd to. [para. 40].

R. v. Gauvin (E.) (1995), 169 N.B.R.(2d) 161; 434 A.P.R. 161 (T.D.), refd to. [para. 40].

R. v. Simard (H.) (1995), 87 O.A.C. 114; 27 O.R.(3d) 116 (C.A.), refd to. [para. 44].

R. v. Beaulieu, [1995] O.J. No. 3093 (C.A.), refd to. [para. 46, footnote 3].

R. v. Schneider (A.) (2004), 228 N.S.R.(3d) 344; 723 A.P.R. 344 (C.A.), refd to. [para. 46, footnote 3].

R. v. Mills (R.P.) (1993), 124 N.S.R.(2d) 317; 345 A.P.R. 317 (S.C.), refd to. [para. 46, footnote 3].

Montreal (City) v. MacDonald, [1986] 1 S.C.R. 460; 67 N.R. 1, refd to. [para. 48, footnote 5].

Société des Acadiens du Nouveau-Brunswick Inc. and Association de conseillers scolaires francophones du Nouveau-Brunswick v. Minority Language School Board No. 50 and Association of Parents for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 S.C.R. 549; 66 N.R. 173; 69 N.B.R.(2d) 271; 177 A.P.R. 271; 27 D.L.R.(4th) 406, refd to. [para. 48, footnote 5].

Bilodeau v. Manitoba (Attorney General), [1986] 1 S.C.R. 449; 67 N.R. 108; 42 Man.R.(2d) 242, refd to. [para. 48, footnote 5].

R. v. Le, [2000] O.J. No. 4218 (Sup. Ct.), refd to. [para. 53].

R. v. Potvin (M.) (2004), 187 O.A.C. 285; 69 O.R.(3d) 641 (C.A.), refd to. [para. 55].

R. v. Creighton (D.J.) and Crawford (C.), [1995] 1 S.C.R. 858; 179 N.R. 161; 81 O.A.C. 359; 96 C.C.C.(3d) 481, refd to. [para. 59].

R. v. McNamara (No. 1) (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 59].

R. v. Suzack (C.V.) et al. (2000), 128 O.A.C. 140; 141 C.C.C.(3d) 449 (C.A.), refd to. [para. 59].

R. v. Lapointe and Sicotte (1981), 64 C.C.C.(2d) 562 (Ont. G.S.P.), refd to. [para. 64].

R. v. Stockford, [2001] Q.J. No. 4440 (S.C.), refd to. [para. 65].

R. v. Forsey (1994), 95 C.C.C.(3d) 354 (Que. S.C.), refd to. [para. 65].

R. v. Garcia (1990), 58 C.C.C.(3d) 43 (Que. S.C.), refd to. [para. 67].

R. v. Perras, [1998] Q.J. No. 2856 (S.C.), refd to. [para. 67].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 72].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257; 94 D.L.R.(4th) 590; 15 C.R.(4th) 133, refd to. [para. 72].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449, refd to. [para. 72].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321; 42 C.R.(4th) 133; 101 C.C.C.(3d) 97; 128 D.L.R.(4th) 121; 42 C.R.(4th) 133, refd to. [para. 72].

R. v. Khelawon (R.) (2005), 195 O.A.C. 11 (C.A.), refd to. [para. 76].

R. v. Czibulka (L.) (2004), 190 O.A.C. 1; 189 C.C.C.(3d) 199 (C.A.), refd to. [para. 76].

R. v. Conway (J.) et al. (1997), 106 O.A.C. 81; 121 C.C.C.(3d) 397 (C.A.), refd to. [para. 76].

R. v. Moonias (B.) (2004), 192 O.A.C. 327; 2004 CarswellOnt 5210 (C.A.), refd to. [para. 82].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81; 111 C.C.C.(3d) 129, refd to. [para. 83].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257; 19 C.R.(4th) 1, refd to. [para. 83].

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; 190 D.L.R.(4th) 257; 147 C.C.C.(3d) 321; 36 C.R.(5th) 129, refd to. [para. 87].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), refd to. [para. 88].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; 77 C.R.(3d) 145; 57 C.C.C.(3d) 1; [1990] 5 W.W.R. 1; 47 B.C.L.R.(2d) 1, refd to. [para. 95].

R. v. B.L.M. (1993), 121 N.S.R.(2d) 311; 335 A.P.R. 311 (C.A.), refd to. [para. 96].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 9 C.R.(5th) 1; 118 C.C.C.(3d) 1, refd to. [para. 99].

R. v. Carrière (P.) (2004), 191 O.A.C. 233 (C.A.), refd to. [para. 101].

R. v. Baltovich (R.) (2004), 192 O.A.C. 366 (C.A.), refd to. [para. 108].

R. v. Miller (1991), 50 O.A.C. 282; 68 C.C.C.(3d) 517 (C.A.), refd to. [para. 118].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 530, sect. 530.1 [para. 44].

Authors and Works Noticed:

Bastarache, Michel, Language Rights in Canada (2nd Ed. 2004), pp. 203 [para. 56]; 206 [para. 47].

Gruben, Vanessa, Bilingualism and the Judicial System in Bastarache, Michel, Language Rights in Canada (2nd Ed. 2004), pp. 203 [para. 56]; 206 [para. 47].

Counsel:

David Finley and Feroza Bhabha, for the respondent;

Russell Silverstein, for the appellant, Sarrazin;

W. Mark Wallace, for the appellant, Jean;

Patrick F.D. McCann, for the appellant, Cetoute.

These appeals were heard on December 13-14, 2004, before Weiler, Sharpe and Blair, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Blair, J.A., and was released on April 15, 2005.