R. v. Turningrobe (R.A.), (2007) 409 A.R. 334 (CA)

• Judge: Fraser, C.J.A., Hunt and O'Brien, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: July 13, 2007
• Citations: (2007), 409 A.R. 334 (CA);2007 ABCA 236

R. v. Turningrobe (R.A.) (2007), 409 A.R. 334 (CA);

        402 W.A.C. 334

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JL.068

Her Majesty The Queen (respondent) v. Roseanne Andrea Turningrobe (appellant)

(0401-0347-A; 2007 ABCA 236)

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

Alberta Court of Appeal

Fraser, C.J.A., Hunt and O'Brien, JJ.A.

July 13, 2007.

Summary:

The accused admittedly stabbed the victim 15 times, causing her death. A jury convicted the accused of first degree murder. The accused appealed, submitting that the verdict was unreasonable and the trial judge erred in instructing the jury, particularly (1) in failing to review the evidence; (2) in failing to properly instruct the jury on intoxication; (3) in failing to review inconsistencies in the evidence; (4) in failing to warn the jury of the danger of relying on the evidence of the Crown witnesses; and (5) in failing to adequately instruct the jury on the use of post-offence conduct and evidence of consciousness of guilt. The accused sought a new trial.

The Alberta Court of Appeal, Fraser, C.J.A., dissenting, dismissed the appeal.

Criminal Law - Topic 1270

Murder - General principles - First degree murder - Meaning of "planned" and "deliberate" - The Alberta Court of Appeal stated that "a planned murder is one that 'was conceived and carefully thought out' prior to being committed ... To find that a murder was planned, there must be some evidence of a scheme or design in place prior to the murder. ... A deliberate murder is one which is 'considered not impulsive' ... As with a planned murder, the word 'deliberate' in the Criminal Code requires more than the act merely being intentional, as 'it is only if the accused's act was intentional that he can be guilty of murder' ... A person commits deliberate murder when he or she 'thinks about the consequences', and carefully thinks out the act, rather than proceeding hastily, rashly or impulsively. ... Deliberation does not necessarily require a lengthy period of time, so long as the accused has a sufficient opportunity in which to decide what to do ... Thus there is no set period of time required for deliberation before the act is done; the relevant concern is whether or not the accused's act was impulsive. A jury can conclude a murder was planned and deliberate on the basis of circumstantial evidence, even where other inferences may be possible ... It is not required that the circumstances of the accused are inconsistent with any other rational conclusion, so long as the jury is convinced beyond a reasonable doubt that the murder was planned and deliberate." - See paragraphs 11 to 13.

Criminal Law - Topic 1270

Murder - General principles - First degree murder - Meaning of "planned" and "deliberate" - The accused appealed her first degree murder conviction on the ground that the jury's verdict was unreasonable - The Alberta Court of Appeal dismissed the appeal on the ground that there was evidence upon which the jury could have reasonably reached that verdict - Goodstoney was jealous of her ex-boyfriend's attention to the victim - Goodstoney fought the victim - It was broken up by others at the party - Goodstoney asked the accused to kill the victim for her - The accused, seeking Goodstoney's friendship and esteem, agreed to stab the victim - At Goodstoney's instruction, the accused retrieved a carving knife from the kitchen and hid it on her person, waiting for the victim to leave the party - When the victim left, the accused followed and chased her down - Goodstoney and her sister prevented the ex-boyfriend from interfering - The accused admittedly stabbed the victim 15 times, then returned to the party and left with others to dispose of the knife and her blood-soaked sweater - The court held that there was sufficient evidence of planning and deliberation to reasonably support a conviction - Further, there was evidence to support a conclusion that the level of the accused's intoxication did not negate planning and deliberation - See paragraphs14 to 25.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - An accused convicted of first degree murder appealed on the ground that the trial judge failed to adequately review the evidence and relate it to the theory of the defence, precluding the jury from appreciating the value and effect of the evidence and how the law was to be applied to the facts as they found them - The Alberta Court of Appeal held that a jury charge was adequate if the jury was left with a sufficient understanding of the facts as they related to the relevant issues - This was not a complicated factual situation - There was little dispute as to material facts - The issues were intoxication and planning and deliberation - The trial judge fairly set out the theories of the Crown and defence - Because of the extensive review of the evidence by both the Crown and accused, the trial judge advised that he did not intend to go into the evidence in detail - Both counsel agreed - The court stated that "while a trial judge cannot delegate the duty to review to counsel ... it is permissible for the trial judge to incorporate, by reference, the facts outlined by counsel as part of the trial judge's review of the evidence. ... this is what the trial judge effectively did in this case." - Notwithstanding that it would have been preferable for the trial judge to more fully canvass some of the evidence relevant to the issues, the review, in all of the circumstances, was adequate to leave the jury with a sufficient understanding of the facts as they related to the issues - Fraser, C.J.A., dissenting, opined that the trial judge erred in failing to properly review the material evidence; that it was inadequate to simply reference counsels' summation of the evidence in their addresses to the jury - See paragraphs 26 to 70, 112 to 124.

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 4357 ].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour by accused - An accused convicted of first degree murder submitted that the trial judge erred in failing to instruct the jury that her post-offence conduct (fleeing, disposing of the murder weapon and her blood-soaked sweater) was not relevant to whether the murder was categorized as first degree murder, second degree murder or manslaughter - The Alberta Court of Appeal rejected the submission - The evidence was not tendered for that purpose, nor did counsel or the trial judge suggest that it be used for that purpose - The post-conduct behaviour was limited in relevance to the defence of intoxication (i.e., too intoxicated to intend murder or to plan and deliberate) - There was no need for a post-offence conduct direction - If a direction was needed, it was a minor error that would have no effect on the jury - Had it been necessary, the court opined that it would have invoked the curative provisions of s. 686(1)(b)(iii) of the Criminal Code - See paragraphs 87 to 90.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where jury charge incomplete or in error - [See Criminal Law - Topic 4399.9 ].

Cases Noticed:

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 6].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 7].

R. v. Mitchell, [1964] S.C.R. 471, refd to. [para. 8].

R. v. Burns (R.H.) (1994), 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 9].

R. v. Duck (N.J.) and Duck (J.) (1993), 85 Man.R.(2d) 91; 41 W.A.C. 91 (C.A.), refd to. [para. 9].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 10].

R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074; 101 N.R. 108; 102 A.R. 186, refd to. [para. 11].

R. v. Smith (1979), 1 Sask.R. 213 (C.A.), refd to. [para. 11].

R. v. More, [1963] S.C.R. 522, refd to. [para. 12].

R. v. Green (1987), 36 C.C.C.(3d) 137 (Alta. C.A.), refd to. [para. 12].

R. v. Kirkby (1985), 10 O.A.C. 356; 47 C.R.(3d) 97 (C.A.), refd to. [para. 21].

R. v. Wallen, [1990] 1 S.C.R. 827; 107 N.R. 50; 107 A.R. 114, refd to. [para. 22].

R. v. Enright (1983), 49 A.R. 326 (C.A.), refd to. [para. 23].

R. v. Azoulay, [1952] 2 S.C.R. 495, refd to. [para. 27].

R. v. Kelsey, [1953] 1 S.C.R. 220, refd to. [para. 28].

R. v. Guyatt (D.E.) (1997), 97 B.C.A.C. 106; 157 W.A.C. 106; 119 C.C.C.(3d) 304 (C.A.), refd to. [para. 31].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 33].

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 34].

R. v. Karaibrahimovic (J.J.) (2002), 303 A.R. 181; 273 W.A.C. 181; 2002 ABCA 102, refd to. [para. 35].

R. v. C.E.N., [2003] A.R. Uned. 585; 2003 ABCA 283, refd to. [para. 38].

R. v. Malott (M.A.), [1998] 1 S.C.R. 123; 222 N.R. 4; 106 O.A.C. 132, refd to. [para. 39].

R. v. Roberts (E.W.) (2004), 346 A.R. 325; 320 W.A.C. 325; 2004 ABCA 114, refd to. [para. 65].

R. v. Beckei (J.) (1995), 165 A.R. 1; 89 W.A.C. 1 (C.A.), refd to. [para. 65].

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 67].

R. v. Robinson (D.), [1996] 1 S.C.R. 683; 194 N.R. 1; 72 B.C.A.C. 161; 119 W.A.C. 161, refd to. [para. 76].

R. v. Fyfe, [1968] 1 C.C.C. 295 (B.C.C.A.), refd to. [para. 78].

R. v. Sood (V.P.) (1997), 96 O.A.C. 315 (C.A.), refd to. [para. 82].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 85].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 88].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 88].

R. v. Hutchison and Ambrose, [1977] 2 S.C.R. 717; 9 N.R. 431; 14 N.B.R.(2d) 452; 15 A.P.R. 452, refd to. [para. 117].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161, refd to. [para. 117].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 134].

R. v. Greyland (D.A.) and Zaremba (S.H.) (1995), 165 A.R. 49; 89 W.A.C. 49 (C.A.), refd to. [para. 160].

R. v. Randhawa (1990), 104 A.R. 304 (C.A.), leave to appeal denied (1990), 127 N.R. 77; 111 A.R. 320 (S.C.C.), refd to. [para. 163].

R. v. Kematch and Campeau (1979), 3 Sask.R. 295; 48 C.C.C.(2d) 179 (C.A.), refd to. [para. 166].

R. v. MacKinlay (1986), 15 O.A.C. 241; 28 C.C.C.(3d) 306 (C.A.), refd to. [para. 185].

Authors and Works Noticed:

Watt, David, Ontario Specimen Jury Instructions (Criminal) (2005), p. 469 [para. 135].

Counsel:

J. Ruttan, for the appellant;

G. Tomljanovic, for the Crown, respondent.

This appeal was heard on September 12, 2006, before Fraser, C.J.A., Hunt and O'Brien, JJ.A., of the Alberta Court of Appeal.

The judgment of the Court of Appeal was delivered on July 13, 2007, and the following opinions were filed:

O'Brien, J.A. (Hunt, J.A., concurring) - see paragraphs 1 to 93;

Fraser, C.J.A., dissenting - see paragraphs 94 to 188.