R. v. Westergard (E.W.), (2004) 185 O.A.C. 281 (CA)

• Judge: Goudge, MacPherson and Cronk, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 30, 2004
• Jurisdiction: Ontario
• Citations: (2004), 185 O.A.C. 281 (CA)

R. v. Westergard (E.W.) (2004), 185 O.A.C. 281 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. AP.048

Her Majesty The Queen (respondent) v. Ernest William Westergard (appellant)

(C33232)

Indexed As: R. v. Westergard (E.W.)

Ontario Court of Appeal

Goudge, MacPherson and Cronk, JJ.A.

April 15, 2004.

Summary:

The accused was charged with first degree murder on the basis that he caused the victim's death "while committing or attempting to commit" a sexual assault (Criminal Code, s. 231(5)(b)). The accused was convicted by a jury. He appealed.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 1265.1

Murder - Jury charge - First degree murder - The accused was charged with first degree murder on the basis that he caused the victim's death "while committing or attempting to commit" a sexual assault (Criminal Code, s. 231(5)(b)) - The accused was convicted by a jury - He appealed - The Ontario Court of Appeal held that the trial judge did not err by failing to instruct the jury that s. 231(5) of the Code did not apply if the sexual assault took place after the murder - His instruction on first degree murder was sound and in full compliance with R. v. Paré (S.C.C.) - The conclusion that the sexual assault and the murder were part of a single transaction was inescapable - There was no air of reality to the theory that after being murdered, the victim's body was sexually violated in a separate transaction unrelated to her murder - See paragraphs 16 to 35.

Criminal Law - Topic 1272

Murder - During commission of other offences - Elements of offence - [See Criminal Law - Topic 1265.1 ].

Criminal Law - Topic 1278

Murder - During commission of other offences - Jury charge - [See Criminal Law - Topic 1265.1 ].

Criminal Law - Topic 4375

Procedure - Charge or directions - Jury - Directions regarding incriminating statements by accused - The accused was convicted of first degree murder - He appealed, arguing, inter alia, that the trial judge failed to adequately instruct the jury about when they could use the accused's two statements to police as positive evidence of guilt - The Ontario Court of Appeal rejected the argument - The trial judge told the jury, inter alia, that they could believe all, some or none of the statements - His instruction on this issue was a succinct, balanced and sensible instruction - See paragraphs 36 and 40.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury - Directions re flight and other post-offence behaviour of accused - The accused was convicted of first degree murder - He appealed, arguing, inter alia, that the trial judge gave an insufficient limiting instruction respecting the after-the-fact conduct evidence relied on by the Crown - The Ontario Court of Appeal rejected the argument - His charge reflected almost entirely the position defence counsel took on this issue during the pre-charge conference - In any event, the charge was appropriate - The trial judge specifically instructed the jury that "if there is some innocent explanation for the conduct, you can use the evidence to infer guilt only after you have rejected the innocent explanation" - He then carefully reviewed the explanations advanced by the defence to explain the appellant's conduct - See paragraphs 41 to 43.

Cases Noticed:

R. v. Stevens (1984), 20 O.A.C. 239; 11 C.C.C.(3d) 518 (C.A.), refd to. [para. 20].

R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. l; 38 C.C.C.(3d) 97, refd to. [para. 21].

R. v. Quesnel (1991), 71 Man.R.(2d) 1; 4 C.R.(4th) 118 (C.A.), dist. [para. 24].

R. v. Richer (R.J.) (1993), 141 A.R. 116; 46 W.A.C. 116 (C.A.), refd to. [para. 33].

R. v. Muchikekwanape (R.) (2002), 166 Man.R.(2d) 81; 278 W.A.C. 81; 166 C.C.C.(3d) 144 (C.A.), refd to. [para. 34].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 36].

Counsel:

Michal Fairburn, for the respondent;

Christopher D. Hicks and Catriona Verner, for the appellant.

This appeal was heard on March 30, 2004, before Goudge, MacPherson and Cronk, JJ.A., of the Ontario Court of Appeal. MacPherson, J.A., released the following decision for the court on April 15, 2004.