R. v. Wolfe (G.D.), 2005 BCCA 307

• Judge: Lambert, Levine and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 06, 2005
• Jurisdiction: British Columbia
• Citations: 2005 BCCA 307;(2005), 213 B.C.A.C. 189 (CA)

R. v. Wolfe (G.D.) (2005), 213 B.C.A.C. 189 (CA);

    352 W.A.C. 189

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. JN.017

Regina (respondent) v. Gordon Darrell Wolfe (appellant)

(CA030674; 2005 BCCA 307)

Indexed As: R. v. Wolfe (G.D.)

British Columbia Court of Appeal

Lambert, Levine and Lowry, JJ.A.

June 7, 2005.

Summary:

The accused was convicted by the jury of first degree murder and attempted murder. The accused appealed, arguing, inter alia, that the trial judge erred in failing to discharge a juror on the basis of a reasonable apprehension of bias.

The British Columbia Court of Appeal dismissed the appeal.

Editor's Note: for other cases involving this accused see [2003] B.C.T.C. 504 and [2003] B.C.T.C. Uned. 513.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The British Columbia Court of Appeal (per Lambert, J.A.) referred to the test for a reasonable apprehension of bias which had been derived from the dissenting reasons of de Grandpré, J., in Committee for Justice and Liberty v. National Energy Board (S.C.C.) - Part of the test was "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly." - Lambert, J.A., stated that the phrase "more likely than not" was wrong - It suggested that it was in accordance with natural justice for a decision-maker to be equally likely to be biased as not to be biased - Lambert, J.A., opined that the statement of the test as more likely to be biased than not had never been endorsed by the Supreme Court of Canada or the British Columbia Court of Appeal as the correct weighing to give to the respective degrees of likelihood in a reasonable apprehension of bias case - See paragraphs 40 to 46.

Criminal Law - Topic 4312

Procedure - Jury - General - Impartiality - The accused was charged with first degree murder and attempted murder - He had shot his wife and her boyfriend at their place of work - There was no real dispute that he had done the shooting - The issue was his intent - After the Crown had closed its case and during the direct evidence of the accused, the trial judge received information that a juror had gone to her work-place, discussed the case and expressed an opinion about the accused's guilt - The trial judge questioned the juror - She denied discussing the case or expressing an opinion - The trial judge reminded the jury of their sworn oath, etc. - The trial judge then had a police officer investigate the matter and received information that conflicted with the juror's denials - The juror had allegedly stated that "the guy's obviously guilty, and it's just a matter of sentencing him" - The trial judge decided not to make any further inquiries of the juror and did not discharge her - The British Columbia Court of Appeal held that the trial judge did not err - The juror's comment, if made, did not give rise to a reasonable apprehension of bias or predetermination of the outcome of the case, but rather was an accurate statement of what the case was about - See paragraphs 21 to 38.

Criminal Law - Topic 4325

Procedure - Jury - General - Discharge of juror - [See Criminal Law - Topic 4312 ].

Cases Noticed:

R. v. Budai (M.K.) et al. (2001), 153 B.C.A.C. 98; 251 W.A.C. 98; 154 C.C.C.(3d) 289 (C.A.), refd to. [para. 5].

R. v. Forsyth (B.A.) (2003), 188 B.C.A.C. 239; 308 W.A.C. 239; 180 C.C.C.(3d) 309 (C.A.), refd to. [para. 6].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [paras. 7, 40].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [paras. 7, 40].

R. v. L.H.S. (1999), 122 B.C.A.C. 300; 200 W.A.C. 300; 1999 BCCA 307, refd to. [paras. 7, 40].

R. v. Afghanzada (Z.) (2000), 138 O.A.C. 303; 149 C.C.C.(3d) 349 (C.A.), refd to. [para. 10].

R. v. Lawrence (D.C.) (2001), 192 N.S.R.(2d) 43; 599 A.P.R. 43; 2001 NSCA 44, refd to. [para. 30].

R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1, refd to. [para. 32].

Counsel:

G.D. McKinnon, Q.C., for the appellant;

J.M. Gordon, for the respondent.

This appeal was heard on April 6, 2005, at Vancouver, British Columbia, by Lambert, Levine and Lowry, JJ.A., of the British Columbia Court of Appeal. The decision of the Court of Appeal was delivered on June 7, 2005, when the following opinions were filed:

Levine, J.A. - see paragraphs 1 to 38;

Lambert, J.A. (Lowry, J.A., concurring) - see paragraphs 39 to 47.