R. v. White (D.R.), (2011) 300 B.C.A.C. 165 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 11, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 300 B.C.A.C. 165 (SCC);2011 SCC 13;[2011] 1 SCR 433;300 BCAC 165;267 CCC (3d) 453;332 DLR (4th) 39;412 NR 305;[2011] SCJ No 13 (QL)

R. v. White (D.R.) (2011), 300 B.C.A.C. 165 (SCC);

    509 W.A.C. 165

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2011] B.C.A.C. TBEd. MR.032

Dennis Robert White (appellant) v. Her Majesty The Queen (respondent)

(33464; 2011 SCC 13; 2011 CSC 13)

Indexed As: R. v. White (D.R.)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

March 11, 2011.

Summary:

The accused was convicted of second degree murder by a jury. Although the shooter's identity was initially in issue, defence counsel in giving his closing jury address conceded that the accused shot the victim, but argued that the shooting was accidental. There was videotape evidence of the accused immediately fleeing the scene and disposing of the handgun. The accused appealed, submitting that the trial judge erred in failing to instruct the jury that it could not use the evidence of the accused's post-offence conduct to infer intention. The Crown argued that, even if the trial judge did err, the appeal should be dismissed because the verdict would necessarily have been the same (Criminal Code, s. 686(1)(b)(iii)).

The British Columbia Court of Appeal, Finch, C.J.B.C., dissenting, in a judgment reported (2009), 278 B.C.A.C. 177; 471 W.A.C. 177, dismissed the appeal. Although the trial judge erred in giving an incomplete jury charge on post-offence conduct, the majority of the court (Ryan and Chiasson, JJ.A.) held that the appeal had to be dismissed because the error was harmless and the verdict would necessarily have been the same. The accused appealed.

The Supreme Court of Canada, McLachlin, C.J.C., Binnie and Fish, JJ., dissenting, dismissed the appeal. The evidence of "immediate" flight was relevant and properly left with the jury. The jury charge was adequate to warn the jury of the danger of relying on the evidence to infer guilt of murder where there existed one or more possible explanations for immediately fleeing. Alternatively, if there was an error, it was harmless and the appeal was properly dismissed as the verdict would necessarily have been the same (s. 686(1)(b)(iii)).

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 5316.1 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - The Supreme Court of Canada, per Binnie, J., stated that "the general rule is that the proviso [Criminal Code, s. 686(1)(b)(iii)] can only be invoked with respect to 'errors of a minor nature having no impact on the verdict' or 'serious errors which would justify a new trial, but for the fact that the evidence adduced was seen as so overwhelming that the reviewing court concludes that there was no substantial wrong or miscarriage of justice'. By 'overwhelming' it is meant that 'a trier of fact would inevitably convict.'" - See paragraph 196.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 5316.1 ].

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - The Supreme Court of Canada stated that "evidence of post-offence conduct is not subject to any special rule. ... it is definitely wrong to suggest that evidence of anything said or done by an accused after the commission of an offence gives rise to special rules for admissibility, or that it is subject to special warnings as to what use may be made of it by the trier of fact. ... 'The general rule is now, as in the past, that it is for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct put in evidence against the accused is related to the commission of the crime before them rather than to something else, and if so, how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact-finding role.'" - See paragraphs 105, 137.

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - [See Criminal Law - Topic 5316.1 ].

Criminal Law - Topic 5316

Evidence and witnesses - Inferences - Of guilt - From conduct - [See Criminal Law - Topic 5316.1 ].

Criminal Law - Topic 5316.1

Evidence - Witnesses - Inferences - Of guilt - From fleeing crime scene - The accused was charged with murder - Until defence counsel's closing remarks to the jury, the shooter's identity was a live issue - Given videotape and eyewitness evidence showing the accused immediately fleeing the shooting scene and disposing of the gun, when the case went to the jury the only live issue was whether the shooting was accidental (manslaughter) or intentional (murder) - The Crown, in closing address, stated that "there is no hesitation here, no shock, no uncertainty on his part, just immediate flight. One would expect hesitancy if the shot was anything other than the intended action of [the accused]" - While the trial judge instructed the jury that the post-offence conduct "may not" be of assistance to them in determining whether the accused had the requisite intent for murder, he left it open for them to infer intent (i.e., failed to make a "no probative value" instruction) - The accused did not object to the Crown's comments or the jury instructions - On appeal, the accused argued that the judge should have given a "no probative value" instruction, because the evidence lacked relevance on the only live issue (intent) where it was equally consistent with both murder and manslaughter - The Court of Appeal found the jury charge incomplete, but dismissed the appeal because the error was harmless and the verdict would necessarily have been the same (Criminal Code, s. 686(1)(b)(iii)) - The Supreme Court of Canada dismissed the accused's appeal - Rothstein, J. (LeBel, Abella and Cromwell, JJ., concurring), found the jury instructions adequate - Hesitation before flight, as opposed to flight per se, was relevant to the accused's intent, as "lack of hesitation was not 'equally consistent with' or 'equally explained by' accidentally as opposed to intentionally shooting the victim. It is less consistent with accident" - A limiting instruction (evidence had no probative value) was not required - The jury was properly warned that the evidence might be of limited use to them, because there could be an innocent explanation for his immediate flight - However, the jury could infer that immediate flight belied the accused's accidental shooting defence - Alternatively, if the jury charge was deficient, it was a minor and harmless error that would result in the appeal being dismissed under s. 686(1)(b)(iii) - Charron, J. (Deschamps, J., concurring), concurring in the result, agreed that immediate flight was relevant, was properly left with the jury, and that the jury instructions warning of the danger of inferring intent from post-offence conduct were adequate - The Crown's closing statement "could only have been understood by the jury as a rhetorical argument that no evidence supported the defence theory of accidental discharge of the firearm" - The statement did not invite the jury to infer murderous intent from flight - Binnie, J. (McLachlin, C.J.C., and Fish, J., concurring), dissenting, opined that when the matter went to the jury, identity was no longer a live issue and the evidence of the accused's immediate flight was not relevant - The jury should have been given a "no probative value" instruction, telling them not to consider the evidence at all - A caution or warning was not enough and, in any event, the warning given was insufficient because it left it open for the jury to infer guilt based on flight - Since the Crown's remaining evidence was not overwhelming, this was not an appropriate case to apply the curative provisions of s. 686(1)(b)(iii).

Evidence - Topic 1125

Relevant facts - Relevance and materiality - Relevance of evidence offered - General - The Supreme Court of Canada stated that "in order for evidence to satisfy the standard of relevance, it must have 'some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would be in the absence of that evidence'" - See paragraph 36.

Cases Noticed:

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, dist. [paras. 6, 109, 153].

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. [paras. 6, 153].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [paras. 15, 196].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 34 O.R.(3d) 620 (C.A.), refd to. [paras. 18, 162].

Guddmondson v. R. (1933), 63 C.C.C. 332 (S.C.C.), refd to. [paras. 23, 158].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 36].

R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 35 O.R.(3d) 35 (C.A.), refd to. [para. 36].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341, refd to. [para. 36].

R. v. Nelles (1982), 16 C.C.C.(3d) 97 (Ont. Prov. Ct.), refd to. [paras. 46, 107, 142].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 55].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [paras. 56, 173].

R. v. Hurley (G.D.), [2010] 1 S.C.R. 637; 401 N.R. 232; 350 Sask.R. 1; 487 W.A.C. 1; 2010 SCC 18, refd to. [para. 58].

R. v. Hibbert (K.R.), [2002] 2 S.C.R. 445; 287 N.R. 111; 165 B.C.A.C. 161; 270 W.A.C. 161; 2002 SCC 39, refd to. [para. 59].

R. v. Jaw (S.G.), [2009] 3 S.C.R. 26; 393 N.R. 246; 464 A.R. 149; 467 W.A.C. 149, refd to. [paras. 71, 166].

R. v. Levert (G.) (2001), 150 O.A.C. 208 (C.A.), refd to. [para. 75].

R. v. Trotta (M.) et al. (2004), 191 O.A.C. 322 (C.A.), revd. [2007] 3 S.C.R. 354; 369 N.R. 385; 232 O.A.C. 377; 2007 SCC 49, refd to. [para. 75].

R. v. Anderson (W.R.) (2009), 448 A.R. 165; 447 W.A.C. 165; 3 Alta. L.R.(5th) 29; 2009 ABCA 67, refd to. [paras. 76, 143].

R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. 1, refd to. [para. 82].

R. v. Chartrand (J.), [1994] 2 S.C.R. 864; 170 N.R. 161; 74 O.A.C. 257, refd to. [para. 82].

R. v. Mac (M.K.), [2002] 1 S.C.R. 856; 287 N.R. 75; 159 O.A.C. 33; 2002 SCC 24, refd to. [para. 82].

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. [paras. 92, 196].

R. v. Jolivet (D.), [2000] 1 S.C.R. 751; 254 N.R. 1; 2000 SCC 29, refd to. [para. 94].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281; 2007 SCC 6, refd to. [paras. 94, 196].

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. [paras. 97, 163].

R. v. Ménard (S.), [1998] 2 S.C.R. 109; 228 N.R. 100; 111 O.A.C. 1, refd to. [para. 157].

R. v. Campbell (L.E.) (1998), 101 B.C.A.C. 271; 164 W.A.C. 271; 122 C.C.C.(3d) 44 (C.A.), refd to. [para. 158].

R. v. Turcotte (T.), [2005] 2 S.C.R. 519; 339 N.R. 32; 216 B.C.A.C. 1; 356 W.A.C. 1; 2005 SCC 50, refd to. [para. 160].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 43 O.R.(3d) 378 (C.A.), refd to. [para. 163].

R. v. Cudjoe (R.) (2009), 251 O.A.C. 163; 68 C.R.(6th) 86; 2009 ONCA 543, refd to. [para. 164].

R. v. Figueroa (N.) et al. (2008), 233 O.A.C. 176; 58 C.R.(6th) 305; 2008 ONCA 106, refd to. [para. 167].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 168].

R. v. Symonds (1983), 9 C.C.C.(3d) 225 (Ont. C.A.), refd to. [para. 168].

R. v. S.C.B. (1997), 104 O.A.C. 81; 36 O.R.(3d) 516 (C.A.), refd to. [para. 173].

R. v. Bisson (Y.) (1997), 114 C.C.C.(3d) 154 (Que. C.A.), refd to. [para. 174].

R. v. Bennett (M.) (2003), 177 O.A.C. 71; 67 O.R.(3d) 257 (C.A.), refd to. [para. 175].

R. v. Baltrusaitis (V.C.) (2002), 155 O.A.C. 249; 58 O.R.(3d) 161 (C.A.), refd to. [para. 175].

R. v. Powell (2006), 215 C.C.C.(3d) 274 (Ont. Sup. Ct.), refd to. [para. 175].

R. v. Marinaro (G.), [1996] 1 S.C.R. 462; 197 N.R. 21; 91 O.A.C. 117, refd to. [para. 187].

R. v. Thériault, [1981] 1 S.C.R. 336; 37 N.R. 361, refd to. [para. 192].

R. v. Illes (M.), [2008] 3 S.C.R. 134; 380 N.R. 238; 260 B.C.A.C. 285; 439 W.A.C. 285; 2008 SCC 57, refd to. [para. 196].

R. v. Charlebois (P.), [2000] 2 S.C.R. 674; 261 N.R. 239; 2000 SCC 53, refd to. [para. 196].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), § 2.58 [para. 168].

Kaufman Report - see Ontario, Attorney General, Report of the Commission on Proceedings Involving Guy Paul Morin.

Ontario, Attorney General, Report of the Commission on Proceedings Involving Guy Paul Morin (Kaufman Report) (1998), pp. 786 [para. 107]; 1142 to 1150 [para. 141].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (5th Ed. 2008), pp. 26 [para. 31]; 31 [para. 36]; 33 [para. 167]; 45 to 47 [para. 47].

Palmer, Andrew, Guilt and the Consciousness of Guilt: The Use of Lies, Flight and other "Guilty Behaviour" in the Investigation and Prosecution of Crime (1997), 21 Melb. U. L. Rev. 95, p. 142 [para. 183].

Rondinelli, Vincenzo, The Probative Force: Getting Inside the Guilty Mind and Keeping Out Equivocal Conduct (2005), 26:3  Criminal Lawyers' Association Newsletter, No. 38, p. 38 [para. 162].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 472 to 474 [para. 82].

Counsel:

Kathleen M. Bradley and Nikos Harris, for the appellant;

Wendy Rubin, Q.C., for the respondent.

Solicitors of Record:

Peck and Co., Vancouver, B.C., for the appellant;

Attorney General of British Columbia, Vancouver, B.C., for the respondent.

This appeal was heard on May 14, 2010, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada.

On March 11, 2011, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Rothstein, J. (LeBel, Abella and Cromwell, JJ., concurring) - see paragraphs 1 to 103;

Charron, J. (Deschamps, J., concurring) - see paragraphs 104 to 131;

Binnie, J. (McLachlin, C.J.C., and Fish, J., concurring), dissenting - see paragraphs 132 to 198.