R. v. Wucherer (P.J.), (2005) 215 B.C.A.C. 83 (CA)

• Judge: Mackenzie, Low and Thackray, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: July 29, 2005
• Jurisdiction: British Columbia
• Citations: (2005), 215 B.C.A.C. 83 (CA);2005 BCCA 390

R. v. Wucherer (P.J.) (2005), 215 B.C.A.C. 83 (CA);

    355 W.A.C. 83

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. AU.006

Regina (respondent) v. Paul Joseph Wucherer (appellant)

(CA31547; 2005 BCCA 390)

Indexed As: R. v. Wucherer (P.J.)

British Columbia Court of Appeal

Mackenzie, Low and Thackray, JJ.A.

July 29, 2005.

Summary:

The accused was charged with murder and convicted of manslaughter after a trial by judge and jury. The accused appealed his conviction.

The British Columbia Court of Appeal dismissed the appeal.

Criminal Law - Topic 4325

Procedure - Jury - General - Discharge of juror - The accused was charged with murder - The trial judge asked each potential juror if he or she could impartially sit in judgment given that the accused was aboriginal - The trial judge and counsel followed a jury selection process in which the first 11 jurors also acted as "triers" to assess whether, with respect to bias, subsequent potential jurors were qualified to become jurors - During the trial, issues arose respecting juror #11's ability to understand English - The second time that the trial judge questioned juror #11 about his English skills he said that if he did not understand what was being said in the trial he would discuss it with another juror - The trial judge then discharged juror #11 and the trial continued - On appeal, the accused submitted, inter alia, that juror #11 should have been dismissed earlier and that he was deprived of his right to a trial by jury - The British Columbia Court of Appeal dismissed the appeal - See paragraphs 4 to 18.

Criminal Law - Topic 4325.1

Procedure - Jury - General - Discharge of juror - Proceeding with reduced number of jurors - [See Criminal Law - Topic 4325 ].

Criminal Law - Topic 5366

Evidence and witnesses - Documents and reports - Psychiatric or counselling records - The accused was charged with murder, tried by a judge and jury and convicted of manslaughter - The victim's wife (Stewart) and daughter (George) had witnessed the attack that caused his death - After the attack, Stewart screamed for her neighbour, Armstrong - Armstrong and her husband went to the scene to render assistance - At trial, the accused applied for the disclosure of medical records and criminal injuries compensation records of the Stewart and Armstrong families - The trial judge found that only the Armstrongs had applied for compensation and that their privacy and security concerns outweighed the defence interests in the production of those records - The trial judge ordered disclosed the following portions of Stewart's medical records: medications given both at the hospital immediately after her husband died, those she received during her admission to another hospital, and those that she was prescribed on discharge, as they might have affected her ability to accurately remember and report on events; and a note in the hospital records regarding her view of the accused - The British Columbia Court of Appeal held that there was no basis to interfere with the trial judge's discretion respecting disclosure - See paragraphs 19 to 39.

Criminal Law - Topic 5380

Evidence and witnesses - Documents and reports - Medical records of witnesses or third parties - [See Criminal Law - Topic 5366 ].

Cases Noticed:

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), dist. [para. 15].

R. v. Basarabas; R. v. Spek, [1982] 2 S.C.R. 730; 46 N.R. 69; 2 C.C.C.(3d) 257, consd. [para. 16].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, refd to. [para. 24].

Counsel:

S. Goldberg, for the appellant;

S.J. Brown, for the respondent;

V.E. Shillington, for the intervenor, Margaret Armstrong;

S. Martorana, for the Attorney General of British Columbia.

This appeal was heard at Vancouver, B.C., on June 9 and 10, 2005, by Mackenzie, Low and Thackray, JJ.A., of the British Columbia Court of Appeal. Thackray, J.A., delivered the following decision for the court on July 29, 2005.