R. v. Van Every (T.), 2016 ONCA 87

• Judge: Laskin, Gillese and van Rensburg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 01, 2016
• Jurisdiction: Ontario
• Citations: 2016 ONCA 87;(2016), 344 O.A.C. 326 (CA)

R. v. Van Every (T.) (2016), 344 O.A.C. 326 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. FE.001

Her Majesty the Queen (respondent) v. Thomas Van Every (appellant)

(C55165; 2016 ONCA 87)

Indexed As: R. v. Van Every (T.)

Ontario Court of Appeal

Laskin, Gillese and van Rensburg, JJ.A.

February 1, 2016.

Summary:

The accused was charged with first degree murder. The accused's defence was that he was too drunk to kill the victim; that the Crown's key witness at trial was the actual killer. Alternatively, the accused argued that if the jury determined him to be the shooter, he was too drunk to have the requisite intent to commit murder and that manslaughter would be the appropriate verdict. A jury convicted the accused of second degree murder and he was sentenced to life imprisonment without eligibility for parole for 16 years. The accused appealed against conviction and the period of parole ineligibility. The accused argued that the trial judge misdirected the jury on drunkenness and intent and erred in refusing to give a Vetrovec warning respecting one Crown witness and gave an inadequate Vetrovec warning respecting another Crown witness.

The Ontario Court of Appeal dismissed both appeals.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (incl. intent and drunkenness) - [See Criminal Law - Topic 4356 ].

Criminal Law - Topic 4356

Procedure - Charge or directions - Jury or judge alone - Directions regarding intent or mens rea - The accused was convicted by a jury of second degree murder - The victim was shot in the chest by a shotgun at close range - The accused argued that he was too drunk to have shot the victim - Section 229(a)(ii) of the Criminal Code defined intent to commit murder as "means to cause his death, or means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not" - The trial judge misdirected the jury on eight occasions by telling them that they had to be satisfied that the accused intended to cause bodily harm that he knew was likely to cause death "or" (rather than "and") was reckless whether or not the victim would die - The jury convicted the accused of second degree murder - The accused argued that the misdirection could have led the jury to believe that they could find the requisite intent to commit murder solely on the basis of "recklessness" - The Ontario Court of Appeal dismissed the appeal - Notwithstanding the error, there was no reasonable possibility that the jury convicted the accused of murder based on a finding that he was reckless - The court invoked s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the error, because no substantial wrong or miscarriage of justice occurred - No one at trial noticed the error - There was no objection to it - A review of closing arguments and the balance of the jury charge made it clear that "recklessness" was not at play - The principal defence theory was that the Crown's key witness, not the accused, was the shooter - Further, the evidence that the accused was the shooter and had the requisite intent to commit murder was overwhelming - See paragraphs 45 to 72.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where directions or jury charge incomplete or in error - [See Criminal Law - Topic 4356 ].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - The accused appealed his conviction for second degree murder on the ground that the trial judge erred in refusing to give a Vetrovec warning respecting one Crown witness and gave an inadequate Vetrovec warning respecting another Crown witness - The Ontario Court of Appeal stated that "Whether to give a Vetrovec warning, and if so, the content of the warning, are discretionary decisions for the trial judge, and are accorded substantial deference on appellate review" - The court dismissed this ground of appeal - The Vetrovec warning given was sufficiently clear where it was abundantly clear to the jury to approach the testimony of that Crown witness with caution - There was no error in refusing to give a Vetrovec warning respecting the second witness, as the totality of the charge drew the jury's attention to all of the factors that the accused argued were problematic with that witness' evidence - See paragraphs 72 to 82.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - The 33 year old accused was convicted of second degree murder for the shooting death of the victim - The trial judge sentenced the accused to life imprisonment without eligibility for parole for 16 years - The accused appealed the period of parole ineligibility, arguing that "the trial judge failed to give tangible consideration to his Aboriginal background" - The Ontario Court of Appeal dismissed the appeal - The trial judge considered the accused's aboriginal background set out in the detailed Gladue report and the comprehensive pre-sentence report - He was a dangerous adult with a history of violent offences and substance abuse issues - Prospects for rehabilitation were not good - The court stated that "On a fair reading of the reasons for sentence, the trial judge recognized the Aboriginal status and history of the appellant, and expressly stated that he took them into consideration. The circumstances of the offence and the offender, without considering the Gladue factors, might well have justified a longer period of parole ineligibility." - See paragraphs 83 to 100.

Criminal Law - Topic 5846.1

Sentencing - Considerations - Aboriginal offenders - [See Criminal Law - Topic 5670 ].

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - [See Criminal Law - Topic 5670 ].

Cases Noticed:

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209, refd to. [para. 48].

R. v. Moo (K.S.) (2009), 253 O.A.C. 106; 2009 ONCA 645, refd to. [para. 48].

R. v. Daley - see R. v. W.J.D.

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4, refd to. [para. 55].

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. 55].

R. v. Salah (G.) et al. (2015), 328 O.A.C. 333; 319 C.C.C.(3d) 373; 2015 ONCA 23, refd to. [para. 55].

R. v. Esrabian (S.) (2013), 313 O.A.C. 273; 2013 ONCA 761, refd to. [para. 66].

R. v. Sekhon (A.S.), [2014] 1 S.C.R. 272; 454 N.R. 41; 351 B.C.A.C. 1; 599 W.A.C. 1; 2014 SCC 15, refd to. [para. 70].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 70].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 72].

R. v. M.M. (2007), 223 O.A.C. 308; 220 C.C.C.(3d) 74; 2007 ONCA 329, refd to. [para. 73].

R. v. Mariani - see R. v. M.M.

R. v. Carroll (R.) (2014), 314 O.A.C. 281; 304 C.C.C.(3d) 252; 2014 ONCA 2, refd to. [para. 73].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 2000 SCC 11, refd to. [para. 73].

R. v. Shand (J.E.) (2011), 273 O.A.C. 199; 104 O.R.(3d) 491; 2011 ONCA 5, refd to. [para. 76].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 86].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 87].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 87].

R. v. Jensen (M.) (2005), 196 O.A.C. 119; 74 O.R.(3d) 561 (C.A.), refd to. [para. 87].

R. v. Sunshine (D.C.) (2014), 359 B.C.A.C. 295; 615 W.A.C. 295; 2014 BCCA 318, leave to appeal denied [2015] S.C.C.A. No. 185, refd to. [para. 99].

Counsel:

Dirk Derstine and Janani Shanmuganathan, for the appellant;

Grace Choi, for the respondent.

This appeal was heard on June 19, 2015, before Laskin, Gillese and van Rensburg, JJ.A., of the Ontario Court of Appeal.

On February 1, 2016, van Rensburg, J.A., released the following judgment for the Court of Appeal.