R. v. Stevenson (A.), (2014) 328 O.A.C. 132 (CA)

• Jurisdiction: Ontario
• Judge: Doherty, Rouleau and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: (2014), 328 O.A.C. 132 (CA),2014 ONCA 842
• Date: 12 June 2014

R. v. Stevenson (A.) (2014), 328 O.A.C. 132 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.005

Her Majesty the Queen (respondent) v. Andrew Stevenson (appellant)

(C51209; 2014 ONCA 842)

Indexed As: R. v. Stevenson (A.)

Ontario Court of Appeal

Doherty, Rouleau and Epstein, JJ.A.

November 26, 2014.

Summary:

The accused was convicted of the first degree murder of his estranged wife. The identity of the killer was the only issue at trial. The accused appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - The accused's estranged wife was killed by a gunshot wound to the head - The identity of the killer was the only issue at trial - The accused was convicted of her first degree murder - The Crown conceded that the accused's arrest had been unlawful - The officers who arrested the accused searched his pockets immediately upon arresting him - About 20 minutes later they placed plastic bags over his hands to preserve any potential gunshot residue (GSR) evidence - The Ontario Court of Appeal held that the search of the accused's pockets and the bagging of his hands for GSR testing would have been justifiable as incidental to the arrest, had the arrest been lawful - The court held that the bagging of the accused's hands was encompassed by the words search or seizure in s. 8 of the Charter - Further, the accused was arbitrarily detained and the police could not rely on that detention to justify any further restraint on or restriction of the accused - The hand bagging could be seen as an additional restricting feature of the arbitrary detention that further compromised the accused's liberty and security interests protected by the right against arbitrary detention - Arguably, it could also be seen as a distinct violation of his s. 7 rights - See paragraphs 58 to 62.

Civil Rights - Topic 1219

Security of the person - Lawful or reasonable search - Search defined - [See Civil Rights - Topic 1214 ].

Civil Rights - Topic 1220

Security of the person - Lawful or reasonable search - Seizure defined - [See Civil Rights - Topic 1214 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - The accused was convicted of the first degree murder of his estranged wife - At trial, the Crown conceded that the accused's arrest by the Ontario Provincial Police (OPP) was unlawful, but argued that it was not arbitrary as the OPP officers had acted in good faith and reasonably, based on the information provided to them by the Brockville police - The trial judge accepted the argument - On appeal, the Ontario Court of Appeal found that the accused had been arbitrarily detained - The accused's arrest was unlawful because it was not authorized by s. 495(1) of the Criminal Code or any other law - The court rejected the Crown's argument that, even if the arrest was unlawful, it was not arbitrary because the OPP, on the true state of affairs known to the Brockville police, could have detained the accused both for investigative purposes and to ensure his children's safety - The court held that, whatever lawful police power, apart from the arrest power, the police might have had to detain the accused, they did not purport to exercise any such power - The arbitrariness of the accused's detention had to be determined having regard to the police power actually exercised and not by reference to some other police power which might have been, but was not, exercised - The bona fides of the OPP officers who made the arrest and the existence of grounds to detain the accused for investigative purposes and to ensure the children's safety did not alter the detention's arbitrariness, although they were relevant to whether the evidence obtained as a result should be excluded under s. 24(2) of the Charter - See paragraphs 50 to 57 - The court held that, despite the significant intrusion on the accused's liberty and security, he had not met the onus of demonstrating that the GSR test results should be excluded under s. 24(2) - See paragraphs 63 to 73.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3603 ].

Criminal Law - Topic 53

General principles - Protection against self-incrimination - Right to remain silent - [See Criminal Law - Topic 136 ].

Criminal Law - Topic 136

General principles - Rights of accused - Right to silence - The accused's estranged wife was killed by a gunshot wound to the head - The identity of the killer was the only issue at trial - The accused was convicted of her first degree murder - At trial, the Crown argued that the accused lied to the police when he repeatedly insisted that he could not remember where he was at the time of the murder - The Crown argued that, having regard to the timing of the statements and the manner in which the accused made those statements, the jury could infer that the accused had fabricated his claim that he could not recall where he was - The Crown asked the trial judge to instruct the jury on fabrication as circumstantial evidence of guilt - The defence argued that there was no basis upon which a jury could infer that the accused's statements to the police were fabricated - The defence agreed with the trial judge's suggestion that a general instruction on post-offence conduct would be appropriate - The trial judge eventually gave that instruction - On appeal, the Ontario Court of Appeal held that the right to silence played no part in the evidentiary analysis - The accused did not exercise his right to silence, but chose, after a full and proper caution, to waive that right and answer the questions posed by the police - He made that choice several times - If he chose to lie to the police, using those lies for whatever evidentiary value they might properly have did no disservice to an accused's right to silence - See paragraphs 89 to 94.

Criminal Law - Topic 4392

Procedure - Charge or directions - Jury or judge alone - Directions re inferences of guilt (incl. consciousness of guilt) - The accused's estranged wife was killed by a gunshot wound to the head - The identity of the killer was the only issue at trial - The accused was convicted of her first degree murder - At trial, the Crown argued that the accused lied to the police when he repeatedly insisted that he could not remember where he was at the time of the murder - The Crown argued that having regard to the timing of the statements and the manner in which the accused made those statements, the jury could infer that he had fabricated his claim that he could not recall where he was - The Crown asked the trial judge to instruct the jury on fabrication as circumstantial evidence of guilt - The defence argued that there was no basis upon which a jury could infer that the accused's statements to the police were fabricated - The defence agreed with the trial judge's suggestion that a general instruction on post-offence conduct would be appropriate - The trial judge eventually gave that instruction - On appeal, the Ontario Court of Appeal noted that the trial judge described the potential use of the accused's statements to police as evidence for the Crown in her "post-incident conduct" instructions - She explained that the accused's post-incident conduct might or might not provide evidence that he had committed the murder - In other words, she treated the accused's "post-incident" conduct as circumstantial evidence - She used "consciousness of guilt" language - The court held that it would have been better had the trial judge expressly dealt with the inference available should the jury conclude that the accused had feigned his memory loss when speaking to the police - The court set out an appropriate sample instruction regarding feigned memory loss - However, the approach advocated by the court would not have helped the accused and he was not prejudiced by the actual instruction - See paragraphs 89 to 103.

Criminal Law - Topic 4399.1

Procedure - Charge or directions - Jury or judge alone - Directions re false statements by accused - [See Criminal Law - Topic 4392 ].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - [See Criminal Law - Topic 4392 ].

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - The accused's estranged wife was killed by a gunshot wound to the head - The identity of the killer was the only issue at trial - The accused was convicted of her first degree murder - On appeal the accused argued, inter alia, that all the gunshot residue (GSR) test results should have been excluded because their potential prejudicial effect far exceeded their probative value - The Ontario Court of Appeal rejected the argument - The GSR evidence was one brick in the Crown's evidentiary wall - The risk of misuse of this evidence was not significant - See paragraphs 74 to 83.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - The accused's estranged wife was killed by a gunshot wound to the head - The identity of the killer was the only issue at trial - The accused was convicted of her first degree murder - On appeal, the accused argued that gunshot residue (GSR) test results should have been excluded because their potential prejudicial effect far exceeded their probative value - Further, some of the particles discovered on the accused's hands and pants contained only one or two of the three elements needed to identify the particle as GSR - The accused submitted that the evidence of the one and two element particles should not have gone before the jury because, regardless of the trial judge's instructions, the jury would take evidence of the high number of one and two particle element particles found as evidence that they were deposited by the discharge of a firearm - The Ontario Court of Appeal held that the trial judge acted within her discretion in allowing the Crown to lead the evidence of the one and two element particles - An expert testified that one, two and three element particles were deposited after a gun was fired - Without evidence of the existence of the one and two element particles, the jury might have wrongly concluded that there were no one or two particle elements deposited on the accused's hands and clothing and factored that erroneous conclusion into its assessment of the GSR evidence - The trial judge clearly and accurately described the effect of the evidence pertaining to the one and two element particles and the significance of the expert's evidence that only three element particles constituted GSR - See paragraphs 84 to 88.

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 48].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 50].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193, refd to. [para. 51].

R. v. Whitaker (D.P.) (2008), 254 B.C.A.C. 234; 426 W.A.C. 234; 2008 BCCA 174, leave to appeal refused [2008] 3 S.C.R. x; 391 N.R. 394; 279 B.C.A.C. 320; 473 W.A.C. 320, refd to. [para. 56].

R. v. Dhillon (R.S.) (2012), 323 B.C.A.C. 28; 550 W.A.C. 28; 291 C.C.C.(3d) 93; 2012 BCCA 254, refd to. [para. 56].

R. v. Loewen (D.J.), [2011] 2 S.C.R. 167; 415 N.R. 397; 502 A.R. 3; 517 W.A.C. 3; 2011 SCC 21, refd to. [para. 57].

R. v. Backhouse (J.) (2005), 195 O.A.C. 80; 194 C.C.C.(3d) 1 (C.A.), refd to. [para. 58].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 59, footnote 2].

R. v. MacDonald (E.) (2014), 453 N.R. 1; 341 N.S.R.(2d) 353; 1081 A.P.R. 353; 2014 SCC 3, refd to. [para. 59, footnote 2].

R. v. Greaves (E.A.) (2004), 203 B.C.A.C. 31; 332 W.A.C. 31; 189 C.C.C.(3d) 305; 2004 BCCA 484, leave to appeal denied [2004] S.C.C.A. No. 522, refd to. [para. 59, footnote 2].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 62].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 62].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273; 46 C.C.C.(3d) 479, refd to. [para. 63].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 63].

R. v. Mian (M.H.) (2014), 462 N.R. 1; 580 A.R. 1; 620 W.A.C. 1; 2014 SCC 54, refd to. [para. 63].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 246 C.C.C.(3d) 301; 2009 ONCA 624, leave to appeal denied (2010), 409 N.R. 397 (S.C.C.), refd to. [para. 74].

R. v. Gjikokaj, [2014] E.W.C.A. Crim. 386, refd to. [para. 81].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81; 44 C.C.C.(3d) 193, refd to. [para. 82, footnote 3].

R. v. O'Connor (P.) (2002), 166 O.A.C. 202; 62 O.R.(3d) 263 (C.A.), refd to. [para. 91].

R. v. Polimac (M.) (2010), 262 O.A.C. 91; 254 C.C.C.(3d) 359; 2010 ONCA 346, leave to appeal denied (2010), 416 N.R. 385; 280 O.A.C. 399 (S.C.C.), refd to. [para. 92].

R. v. Rodgerson (J.) (2014), 319 O.A.C. 254; 309 C.C.C.(3d) 535; 2014 ONCA 366, refd to. [para. 92].

R. v. Jones (K.C.) (2006), 214 O.A.C. 225; 81 O.R.(3d) 481 (C.A.), refd to. [para. 92].

R. v. Turcotte (T.), [2005] 2 S.C.R. 519; 339 N.R. 32; 216 B.C.A.C. 1; 356 W.A.C. 1; 2005 SCC 50, refd to. [para. 94].

R. v. Hall (C.) (2010), 269 O.A.C. 199; 263 C.C.C.(3d) 5; 2010 ONCA 724, leave to appeal refused (2011), 423 N.R. 393 (S.C.C.), refd to. [para. 98].

Authors and Works Noticed:

Watt, David, Watt's Manual of Criminal Evidence (2014), p. 43 [para. 74].

Counsel:

Edward L. Greenspan, Q.C., Michael W. Lacy and Anida Chiodo, for the appellant;

John McInnes, for the respondent.

This appeal was heard on June 12, 2014, by Doherty, Rouleau and Epstein, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., delivered the following reasons for judgment for the court on November 26, 2014.