R. v. Turcotte (T.), 2004 BCCA 175

• Judge: Finch, C.J.B.C., Rowles and Huddart, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 29, 2003
• Jurisdiction: British Columbia
• Citations: 2004 BCCA 175;(2004), 195 B.C.A.C. 276 (CA)

R. v. Turcotte (T.) (2004), 195 B.C.A.C. 276 (CA);

    319 W.A.C. 276

MLB headnote and full text

Temp. Cite: [2004] B.C.A.C. TBEd. AP.007

Regina (respondent) v. Thomas Turcotte (appellant)

(CA028858; 2004 BCCA 175)

Indexed As: R. v. Turcotte (T.)

British Columbia Court of Appeal

Finch, C.J.B.C., Rowles and Huddart, JJ.A.

March 25, 2004.

Summary:

The accused appealed his conviction by a judge and jury on three counts of second degree murder.

The British Columbia Court of Appeal allowed the appeal, set aside the convictions and ordered a new trial.

Criminal Law - Topic 4360

Procedure - Charge or directions - Jury or judge alone - Directions regarding infer­ences from silence - Evidence of the accused's silence in the face of police ques­tioning was admitted into evidence as post-offence conduct - The accused's fail­ure to respond was characterized by Crown coun­sel as consciousness of guilt - The British Columbia Court of Appeal held that the trial judge erred in law in his instruc­tions to the jury by characterizing the accused's silence as post-offence con­duct which could be used to infer guilt - The accused had a right to remain silent - The ac­cused's refusal to respond to ques­tions was irrelevant to any material issue the Crown had to prove to establish the offence charged (murder) - See paragraphs 42 to 79.

Criminal Law - Topic 4392

Procedure - Charge or directions - Jury or judge alone - Directions re inferences of guilt (incl. consciousness of guilt) - [See Criminal Law - Topic 4360 ].

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 4360 ].

Criminal Law - Topic 5440

Evidence - Witnesses - Cross-examin­ation of accused - Re failure to offer explanation to police - Evidence of the accused's silence in the face of police questioning was admitted into evidence as post-offence conduct - The accused's failure to respond was characterized by Crown counsel as consciousness of guilt - The British Columbia­ Court of Appeal held that ques­tions of the accused on his reasons for refusing to respond to ques­tions by the police were inadmissible - See paragraphs 42 to 79.

Cases Noticed:

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321; 80 C.R.(3d) 235; 59 C.C.C.(3d) 321, refd to. [para. 56].

R. v. M.C.W. (2002), 169 B.C.A.C. 128; 276 W.A.C. 128; 165 C.C.C.(3d) 129; 2002 BCCA 341, refd to. [para. 57].

R. v. Wojcik (J.W.) (2002), 166 Man.R.(2d) 55; 278 W.A.C. 55; 166 C.C.C.(3d) 418; 2002 MBCA 82, consd. [para. 57].

R. v. Cones (G.) (2000), 129 O.A.C. 384; 143 C.C.C.(3d) 355 (C.A.), consd. [para. 57].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226 (C.A.), refd to. [para. 57].

R. v. Symonds (1983), 9 C.C.C.(3d) 225 (Ont. C.A.), refd to. [para. 67].

Counsel:

G.P. DelBigio and L.M. Sturgess, for the appellant;

O.S. Kuzma, Q.C., for the Crown, respon­dent.

This appeal was heard before Finch, C.J.B.C., Rowles and Huddart, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on September 29, 2003. The decision of the court was delivered by Rowles, J.A., on March 25, 2004.