R. v. Swanson (L.J.), (2002) 173 B.C.A.C. 62 (CA)

• Judge: Newbury, Hall and Saunders, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 19, 2002
• Jurisdiction: British Columbia
• Citations: (2002), 173 B.C.A.C. 62 (CA);2002 BCCA 528

R. v. Swanson (L.J.) (2002), 173 B.C.A.C. 62 (CA);

    283 W.A.C. 62

MLB headnote and full text

Temp. Cite: [2002] B.C.A.C. TBEd. SE.054

Regina (respondent) v. Lori Jane Swanson (appellant)

(CA028460; 2002 BCCA 528)

Indexed As: R. v. Swanson (L.J.)

British Columbia Court of Appeal

Newbury, Hall and Saunders, JJ.A.

September 20, 2002.

Summary:

The accused was charged with the second degree murder of her husband. A jury found her guilty as charged. The accused appealed from conviction.

The British Columbia Court of Appeal allowed the appeal, and ordered a new trial on the charge of second degree murder.

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 charged with the second degree murder of her husband - The trial judge left the defences of self-defence and intoxication with the jury - The British Columbia Court of Appeal held that the jury charge about the accused's "after the fact" conduct (her conversation with the 911 emergency operator to whom she reported the death), was erroneous - The instruction failed to distinguish how the "after the fact" conduct bore differently on the defences of self-defence and intoxica­tion - The jury could have been left with the impression that simply because the accused lied to the operator about who killed her husband, her intoxication defence should fail - See paragraphs 14 to 23.

Cases Noticed:

R. v. Haase (1964), 50 W.W.R.(N.S.) 321 (B.C.C.A.), affd. (1964), 50 W.W.R.(N.S.) 386 (S.C.C.), refd to. [para. 11].

R. v. Wray, [1970] 4 C.C.C. 1 (S.C.C.), refd to. [para. 11].

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; 147 C.C.C.(3d) 321, refd to. [para. 12].

R. v. K.S. (2000), 136 O.A.C. 238; 148 C.C.C.(3d) 247 (C.A.), refd to. [para. 12].

R. v. S.F.C. - see R. v. Courtereille (S.F.).

R. v. Courtereille (S.F.) (2001), 147 B.C.A.C. 125; 241 W.A.C. 125 (C.A.), dist. [para. 19].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 23].

Counsel:

P. McMurray, for the appellant;

J. DeWitt-Van Oosten, for the respondent.

This appeal was heard before Newbury, Hall and Saunders, JJ.A., of the British Columbia Court of Appeal, at Victoria, British Columbia, on June 19, 2002. The decision of the court was delivered by Hall, J.A., at Vancouver, British Columbia, on September 20, 2002.