2011 QCCA 1204, 2011 QCCA 1204

Denver-Lambert c. R. 2011 QCCA 1204 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002293-087 (200-01-079903-039) DATE: JUNE 7, 2011 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. JACQUES VIENS, J.A. (AD HOC) SHAWN DENVER-LAMBERT APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix JUDGMENT [ 1 ] The appellant is appealing from the guilty verdicts rendered on September 18, 2008, by a jury presided by the Honourable Mr. Justice Richard Grenier of the Superior Court, District of Quebec, on two counts of first degree murder : 1.

On or about April 8, 1994 in Québec, district of Québec, did cause the death of Maurille Lepage, committing thereby a first degree murder, the indictable offence provided by

section 235 of the Criminal Code . 2. On or about April 8, 1994 in Québec, district of Québec, did cause the death of Béatrice Lavoie, committing thereby a first degree murder, the indictable offence provided by

section 235 of the Criminal Code . [ 2 ] For the reasons of Viens J.A. (ad hoc), with which Thibault and Rochette JJ.A. agree; THE COURT: [ 3 ] ALLOWS the appeal, in part; [ 4 ] SETS ASIDE the appellant’s conviction on the second count; [ 5 ] ORDERS a new trial to be held on the second count. FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. JACQUES VIENS, J.A. (AD HOC) Mtre René Duval Duval Lauzon For the appellant Mtre René Verret Criminal and Penal Prosecuting Attorney For the respondent Date of hearing: November 22, 2010 REASONS OF VIENS J.A. (AD HOC)

[ 6 ] The appellant is appealing a judgment of the Superior Court, Criminal Division, District of Quebec, rendered on September 18, 2008, by the Honourable Mr. Justice Richard Grenier, that ratified two convictions of first degree murder rendered by a jury relating to the following charges: On or about April 8, 1994 in Québec, district of Québec, did cause the death of Maurille Lepage, committing thereby a first degree murder, the indictable offence provided by

section 235 of the Criminal Code . On or about April 8, 1994 in Québec, district of Québec, did cause the death of Béatrice Lavoie, committing thereby a first degree murder, the indictable offence provided by

section 235 of the Criminal Code . [ 7 ] This was the appellant’s second trial on these charges. The first, in 2004, held in French and jointly with the accomplice Pierre Lévesque, also ended in two convictions. The Court ordered another trial, however, because of an error relating to the appellant’s language rights. [1] That second trial was held in English and separately from that of the accomplice Pierre Lévesque. The facts [ 8 ] On the morning of April 9, 1994, Maurille Lepage, 82, and Béatrice Lavoie, 75, were found tied up in their home in Val- Bélair. Mrs.

Lavoie was lying in a pool of blood and she was declared dead on the scene. Mr. Lepage was taken by ambulance to hospital, where he succumbed to his injuries on April 21. According to Dr. Claude Pothel, the pathologist, both victims died as a result of the cranial trauma they had sustained. [ 9 ] Mr. Lepage’s comments prior to his death, in the presence of the ambulance technicians who took him to hospital and the police officers who came to his bedside, revealed that two individuals had broken into his house to commit robbery and that he and Mrs. Lavoie had been assaulted.

However, it was not until January 2003 that the police learned that these two individuals were the appellant and his accomplice Pierre Lévesque. [ 10 ] At the first trial, held jointly, both the appellant and his accomplice Pierre Lévesque testified in their defence, while here, only the appellant testified. [ 11 ] After learning from Louis Dubé that a substantial sum of money was being kept in the home of an elderly couple, the appellant approached his neighbour Pierre Lévesque to make him his accomplice. They then had several meetings to plan the operation.

Mélanie Diedrich, the appellant’s spouse, was told about the plan and was present for some of the discussions. The plan was to go the couple’s home, subdue its occupants, tie them up and then take the money. [ 12 ] On the evening of April 8, 1994, Pierre Lévesque joined the appellant at his home. They then drove to the target residence. When they arrived, they went to the back of the house, from where the appellant could see Mr.

Lepage inside. [ 13 ] The appellant was carrying a 12-calibre shotgun, previously sawed off, into which he loaded two cartridges so that he could fire a shot into the air if things went wrong. Pierre Lévesque was armed with a twirler’s baton. Both wore gloves and covered their faces with a nylon stocking. [ 14 ] As agreed, the appellant broke down the door and entered the house first. Mr. Lepage was near the entrance. The appellant immediately struck him on the head with his weapon, which broke in two under the impact.

He then subdued him and put him on the floor before tying him up with adhesive tape and blindfolding him. [ 15 ] Pierre Lévesque, who followed the appellant, went to Mrs. Lavoie who was still in the living room. While she was getting up, he struck her in the head twice with his baton before pulling her by the arm into the kitchen. Mrs. Lavoie was screaming incessantly. [ 16 ] After tying up Mr. Lepage, the appellant gave the adhesive tape to Lévesque so that he could tie up Mrs. Lavoie.

He then went to the bedroom to look for the money. [ 17 ] Unable to find any loot, he left the bedroom and saw Lévesque who was still hitting Mrs. Lavoie. The appellant took Mr. Lepage by the shoulders and shook him, repeatedly asking him [ translation] “ Where is it? Where is it?” Mr. Lepage, still conscious, answered: [ translation] “ Get out of here, you have no business here”. At that moment, according to the appellant, Lévesque tried to hit Mr.

Lepage with his baton but, missing his target, hit the appellant in the left hand instead. [ 18 ] The appellant went back into the bedroom and this time noticed a small suitcase with envelopes inside it. Aware that Mrs. Lavoie’s cries had stopped, he left the bedroom and saw her lying in a pool of blood at the feet of Pierre Lévesque. He yelled several times: “ Pierre! Pierre!” Then, after picking up the pieces of his weapon, he put them in a bag and headed for the door. Lévesque brought the baton.

Panic-stricken and his left hand injured, the appellant dove into the car and, with Lévesque on board, drove off. [ 19 ] On their return, Mélanie Diedrich noted that the two men were very agitated. She noticed that the appellant had brought back the sawed-off shotgun, broken in two, while Pierre Lévesque brought back the twirler’s baton. Pierre Lévesque counted the money; she estimated that they divided $10,000 between them. [ 20 ] Mélanie Diedrich helped the appellant bandage his injured left hand. She noticed that his jeans were stained with blood, especially around the left thigh.

The gloves worn by Pierre Lévesque were spattered with blood and there were splashes of blood on his right side, and in the neck and arm area.

[ 21 ] The appellant’s clothes, the empty envelopes, the broken shotgun and the other incriminating objects were placed in a large garbage bag. While Pierre Lévesque went back to his house, Mélanie Diedrich, after cleaning the blood inside the car, went with the appellant to get rid of the bag and the baton by putting them in a garbage container. [ 22 ] The appellant and Mélanie Diedrich then spent the night at a motel. The appellant told her: “ I think the lady died”. The next day, watching the news on TV, they received confirmation of Mrs. Lavoie’s death.

The appellant decided to leave the country and go to the United States. [ 23 ] Ten days later, Ms. Diedrich learned of Mr. Lepage’s death. She told the appellant, who informed her during a telephone conversation that: “ he's the one who took care of the gentleman” . [ 24 ] A month later, Mélanie Diedrich joined the appellant in California where they got married a few weeks later. The appellant confided in her that Lévesque would not stop hitting Mrs. Lavoie, while he himself took charge of subduing Mr.

Lepage and searching the house for the money. [ 25 ] In 1996, when they returned to Quebec after the death of the appellant’s father, they saw Pierre Lévesque a few times. Mélanie Diedrich stated that Lévesque confided to her that [ translation] “ the lady wouldn’t stop screaming” . [ 26 ] For his part, the appellant stated that during one of these encounters, Pierre Lévesque suggested knocking Ms. Diedrich out and throwing her in the river if the couple ever broke up.

He also made references pertaining to getting rid of Louis Dubé. [ 27 ] After the couple divorced in 1997, Mélanie Diedrich moved to Florida; she met Éric Pardee whom she married shortly after. They had a child and then divorced. That was when Mr. Pardee gave the information that enabled the police to resume the investigation into the deaths of Mr. Lepage and Mrs. Lavoie. [ 28 ] Mélanie Diedrich agreed to cooperate with the investigation as well as the legal proceedings in exchange for a guarantee that no criminal charges would be brought against her.

Issues [ 29 ] The appellant argues that the trial judge erred in several respects: 1) In his instructions to the jury concerning the degree of foreseeability required by section 21(2) of the Criminal Code . 2) By declaring the ante mortem statements attributed to Mr.

Lepage admissible as evidence as well as his instructions in this regard. 3) In his instructions concerning causation. 4) In his instructions concerning section 231(5) of the Criminal Code . 5) In his instructions concerning planning and deliberation. 6) By indicating to the jury that it could take into consideration the fact that the appellant did not intervene while his accomplice was beating Mrs. Lavoie. [ 30 ] I propose examining these grounds for appeal in the order in which they were presented at the hearing.

The degree of foreseeability required under section 21(2) of the Criminal Code [ 31 ] The English version of

section 21 of the Criminal Code reads as follows: 21.

(1) Parties to offence. – Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it.

(2) Common intention - Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [Emphasis added.] [ 32 ] The appellant criticizes the trial judge for making an erroneous statement to the jury as to the state of the law concerning the application of the provisions of section 21(2) Cr C that permit an objective assessment of whether the appellant could have foreseen the commission of the offence of murder by his accomplice Pierre Lévesque, whereas the Supreme Court had already ruled [2] on the need for a subjective approach to complicity for this type of offence requiring specific intent. [ 33 ] The respondent acknowledges in fact that the trial judge, because of his comments, committed an error by allowing the jury to consider objective foreseeability (“should have known”) and leaves it to the Court to decide whether or not it is opportune to resort to the remedial order of section 686(1)( b )(iii) Cr C.

[ 34 ] First, the trial judge was nonetheless careful to omit the expression “ought to have known” when he read the jury the provisions of section 21(2) Cr C. It was when, in his instructions, he dealt with the third essential element of section 21(2) Cr C , namely knowledge, that the error occurred: The third element, "knowledge", may be proven in either of two (2) ways. Crown counsel may prove that Shawn Denver actually knew that Pierre Lévesque would probably kill Mrs. Lavoie in carrying out their original agreement. "Probably" means likely, not just possibly. Knowledge is a state of mind.

Shawn Denver's state of mind. To know something is to be aware of it. Did Shawn Denver-Lambert know that Pierre Lévesque would probably assault, confine and subsequently kill Mrs. Lavoie in carrying out their original agreement? To determine what Shawn Denver actually knew about the likelihood of Lévesque committing first degree murder in carrying out the original agreement, you look at Shawn Denver's words and conduct before, at the time and after Lévesque committed the murder of Mrs. Lavoie.

All these things and the circumstances in which they occurred, they shed light on Shawn Denver-Lambert’s knowledge of Lévesque’s commission of murder. Use your good common sense. Crown counsel may also prove knowledge by showing that the accused should have known that Lévesque would probably kill Mrs. Lavoie in carrying out the original agreement .

To determine whether knowledge has been proven on this basis, you should ask yourself whether you’re satisfied beyond a reasonable doubt that a reasonable person in the same circumstances would know that Lévesque would probably commit murder in carrying out their original agreement. It is for you to say. The accused admits that they agreed on robbery, seizure and unlawful confinement by tying up. Examine all the evidence following these events and ask yourself if Denver-Lambert, with Mr. Lepage when he broke in, could foresee the death of Mrs.

Lavoie, would be a probable consequence of Lévesque carrying out the common purpose. [Emphasis added.] [ 35 ] These instructions from the judge violate the principles set out by the Supreme Court in Logan : For these reasons, the mens rea for attempted murder cannot, without restricting s. 7 of the Charter , require of the accused less of a mental element than that required of a murderer under 212( a )(i), that is, subjective foresight of the consequences.

While Parliament, as I have already implied, could well extend our definition of attempted murder in Ancio to include the unsuccessful murderers of s. 212( a ) (ii), it cannot go further and include objective foreseeability as being sufficient for a conviction without restricting s. 7 of the Charter . [3] [ 36 ] The trial judge gave the jury two different ways of determining knowledge. Admittedly, he identified subjective knowledge first, which is indeed the correct, and only, applicable criterion in this case.

However, this would not offset the impact of the objective criterion which he then brought forward and which is an easier test to meet. The juxtaposition of the objective and subjective criteria is particularly prejudicial to the appellant, as the jury could very well have concluded that it was enough to examine the facts of the case in light of the knowledge the appellant should have had , thereby eliminating the subjective criterion. [ 37 ] In fact, a similar error had been made by the judge presiding the first joint trial, in 2004, of the appellant and his accomplice Pierre Lévesque.

The Court had stated the following on the matter: [ translation] The error committed in the instructions concerning section 21(2) Cr C makes this reasoning fallacious, since the jury could have considered the appellant’s version credible, but chose to apply the less demanding criterion of the reasonable person put in the same circumstances to reach the same verdict of murder. The instructions made section 21(2) Cr C the least restrictive way to find the appellant guilty.

It is therefore impossible to conclude that this was not the reasoning used by the jury . [4] [Emphasis added.] [ 38 ] Here again, the trial judge, through his erroneous instructions, unduly lightened the onus on the respondent by showing the jury an avenue for convicting the appellant that was much less demanding than any of the others validly open to them. Furthermore, it is rather strange that the same error occurs in this second trial without the attorneys, who are the same ones as in the first trial, pointing it out to the judge.

This does not, however, mitigate the impact of the error on the validity of the verdict. [ 39 ] But is this a harmless or minor error of law having no impact on either of the verdicts given by the jury and allowing recourse to the remedial order of section 686(1)( b )(iii)? [5] [ 40 ] Indeed, even if there were a serious error, holding a new trial would be necessary only if “there is any reasonable possibility that the verdict would have been different had the error at issue not been made”. [6] The test, now well established, is whether the verdict would necessarily have been the same if the error committed during the trial had not occurred: …the onus resting upon the Crown is to satisfy the Court that the verdict would necessarily have been the same if such error had not occurred.

The satisfaction of this onus is a condition precedent to the right of the Appellate Court to apply the terms of the subsection at all. The Court is not bound to apply the subsection merely because this onus is discharged. Under our system of law a man on trial for his life is entitled to the verdict of a jury which has been accurately and adequately instructed as to the law… [7]

[ 41 ] Once the error has been established, as in the present case, the onus is on the respondent to prove that the verdict would necessarily have been the same if the error had not occurred. However, even though the respondent has not asserted any specific argument to support his request to resort to the application of the remedial order of section 686(1)( b )(iii) Cr.C . , it is appropriate to examine whether the circumstances allow it. [ 42 ] Section 686(1)( b )(iii) Cr C reads as follows: 686.

(1) Powers – On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal: (a) … (

b) may dismiss the appeal where: (

i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment, (ii) … (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph ( a )(ii), the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred… [ 43 ] While examining whether there were grounds to resort to the remedial order during the hearing of the appeal of the accomplice Pierre Lévesque following the first trial, when a similar error was committed by the judge, the Court stated the following: [8] [ translation] [31] As the Supreme Court states in R. v.

Jolivet , [9] our Court must consider both the seriousness of the error made by the trial judge and its effect on the jury’s inference-drawing process and verdict. In fact, [ translation] “ holding a new trial is full of consequences for the administration of justice and this solution must be avoided when, independent of the error committed, it is likely that the jury would have reached the same conclusion”. [10] [ 44 ] Here, the appellant, in his testimony, admitted that he planned with Pierre Lévesque to go to the victims’ house to commit robbery, intending to subdue and tie up any persons present.

He acknowledged that he was armed with a 12-calibre sawed-off shotgun with which he gave Mr. Lepage a blow to the head upon entering the house, prior to subduing him and tying him up. He denied, however, that he struck Mrs. Lavoie, going so far as to say that he did not touch her, as his accomplice Pierre Lévesque had taken charge of tying her up and hitting her. He did not mention, however, that Pierre Lévesque allegedly struck Mr.

Lepage. [ 45 ] In light of the evidence, the appellant’s testimony in particular, and the judge’s instructions concerning complicity under section 21(2) Cr C , I consider it necessary to examine the impact of these instructions on each count in order to determine whether or not it is possible to have recourse to the remedial order. Although the error made by the trial judge was objectively serious, we must consider whether the jury’s verdict would have been any different with regard to each count had this error not occurred.

In short, to what extent could this error have influenced each verdict given by the jury? [ 46 ] First, concerning the second count, the appellant denies having assaulted Mrs. Lavoie. Instead, he says that it was his accomplice Pierre Lévesque, in a sudden fit of rage, who struck her a number of times with his baton. Regarding this count, the concept of complicity under the provisions of section 21(2) Cr C is particularly important. [ 47 ] Although Mrs.

Lavoie was certainly beaten to death by at least one of the two accomplices while the other was present in the house, it seems to me, however, that there is insufficient evidence to exclude the possibility that the verdict of first degree murder on the person of Mrs. Lavoie, given by the jury against the appellant, might have been different if the error made by the judge had not occurred.

I do not think it is possible to say that a jury, well instructed in law, would have necessarily found the appellant guilty of the first degree murder of Béatrice Lavoie, and not of a lesser and included offence. [ 48 ] With respect to the count concerning the murder of Mrs. Lavoie, the impact of the error made by the trial judge in his instructions is very prejudicial to the appellant. While the appellant admits that there was an original agreement to commit robbery and carry out this common purpose, his participation in the assault on Mrs. Lavoie is contested.

If the jury, and this possibility cannot be excluded, retained from the appellant’s testimony that he did not assault Mrs. Lavoie, then complicity becomes the only way to attribute this murder to him. However, the second paragraph of

section 21 Cr C represents a much less demanding avenue than the first to establish the appellant’s guilt. [11] By giving the jury the option of examining foreseeability based on an objective criterion (“should have known”), the trial judge further lowered the threshold of assessment which, based on a subjective criterion (“knew”), could have resulted in a completely different verdict: Crown counsel may also prove knowledge by showing that the accused should have known that Lévesque would probably kill Mrs.

Lavoie in carrying out the original agreement. [Emphasis added.] [ 49 ] Since this was a serious error and the possibility cannot be excluded that the jury’s verdict would have been different if the error had not occurred, I propose allowing the appeal concerning the second count, setting aside the guilty verdict and ordering a new trial on the charge of first degree murder of Béatrice Lavoie. [ 50 ] Furthermore, as regards the first count (first degree murder of Maurille Lepage), an analysis of all the evidence and of the instructions of the trial judge concerning section 21(2) Cr C shows, in my opinion, that the error could not have influenced the verdict.

[ 51 ] First of all, it is clear from the trial judge’s instructions concerning section 21(2) Cr C that they actually concern only the second count, namely the murder of Mrs. Lavoie, so that there is no link between these instructions, regardless of the error committed, and the jury’s guilty verdict on the first count for the murder of Mr.

Lepage. [ 52 ] If the part of the judge’s instructions concerning the first two essential elements that the prosecution was supposed to establish under section 21(2) Cr C, namely the agreement to commit a robbery (“agreement”) and the commission of an offence other than that provided in the agreement (“offence”) is of a general scope, the instructions regarding the third essential element, namely “knowledge”, obviously only concern the second count. There is definitely no question of the count concerning the death of Mr.

Lepage. [ 53 ] That is why I believe that the error committed by the judge could not have influenced the jury’s verdict on the first count. [ 54 ] Furthermore, if the trial judge gave his instructions under section 21(2) Cr C only as regards the second count, namely the murder of Mrs. Lavoie, it was clearly because the evidence concerning the appellant’s participation in the events that caused the death of Mrs. Lavoie was quite sparse compared with that involving him in the murder of Mr. Lepage. The appellant denied having assaulted Mrs. Lavoie in any way whatsoever, while he admitted to having struck Mr.

Lepage on the head. [ 55 ] Even by accepting the appellant’s version of the facts, according to which he only hit Mr. Lepage on the head once when entering the home—the other blow necessarily being struck by his accomplice Pierre Lévesque—the facts of the matter are that the resulting injury was still serious. This is what Dr. Claude Pothel, pathologist, implied in his testimony: [ translation] All right. Then the major blow is associated with the other wound, but both wounds resulted from blows to the head with a blunt instrument.

To be thorough, I must add that sometimes, even if a wound is superficial, there can be hemorrhage trauma and even underlying cerebral contusion. You can see that even in the case of boxers; there may not be any wounds, but blows to the head can cause a brain hemorrhage. However, it is the top wound that caused the fractures and the most serious cerebral trauma. [ 56 ] In other words, in hitting Mr. Lepage on the head with his shotgun, the appellant inflicted a serious injury, even if the other wound actually turned out to be the fatal one.

The analysis by the jury of the question of knowing whether, in acting in this way, the appellant was reckless of whether Mr. Lepage’s death ensued, could not have been influenced by the judge’s erroneous instructions with regard to section 21(2) Cr C. Accordingly, in order to find the appellant guilty on the first count of murder, the jury necessarily found that the appellant’s state of mind met the requirements for mens rea for this offence: intention to cause death or intention to cause fatal injuries with no regard to whether death ensues or not.

The judge’s instructions on the matter are in fact not called into question here. [ 57 ] The appellant admits that he hit Maurille Lepage, tied him up, shook him by the shoulders and left him lying on the ground blindfolded when he fled the scene. The use of the provisions of section 21(2) Cr C was not necessary or useful for the jury to render a guilty verdict on the first count because Pierre Lévesque did not testify at that trial and furthermore, the appellant never accused him of having hit Mr.

Lepage. [ 58 ] The error committed by the trial judge in his instructions concerning section 21(2) Cr C , even if it is serious, cannot have influenced the jurors’ verdict on the first count, only on the second count. That is why, subject to the other grounds for appeal, I consider that the appeal should be allowed, the verdict should be set aside and a new trial should be ordered on the second count, but that the remedial order pursuant to section 686(1)( b )(iii) Cr C should be applied to the first count. Ante mortem statements attributed to Mr.

Lepage [ 59 ] The appellant faults the trial judge for having allowed, at the end of a voir dire , evidence of certain ante mortem statements attributed to Mr. Lepage. According to the appellant, the absence of reasons for Mr. Lepage to lie was not enough to establish the reliability of his statements, and their admission into evidence proved to be extremely prejudicial because it was the only evidence connecting him to the assault on Mrs. Lavoie. He states the following in his factum: 49. The admission into evidence of Mr. Lepage's dying declarations was extremely prejudicial to Appellant.

In effect, the declarations constituted the only evidence capable of connecting the Appellant to the assault on Mrs. Lavoie. [ 60 ] The statements attributed to Mr. Lepage are in fact highly prejudicial to the appellant in relation to his participation in the killing of Mrs. Lavoie. However, these statements do not add anything that is not already admitted by the appellant concerning his involvement in Mr. Lepage’s death and are therefore not prejudicial to him in that respect. [ 61 ] Being of the opinion that conviction on the second count, namely, the murder of Mrs.

Lavoie, must be set aside because of the first ground for appeal, I consider that the grounds for appeal relating to the statements attributed to Mr. Lepage, whether it is a matter of admitting them into evidence or even the judge’s instructions to the jury, become theoretical. Consequently, it is no longer necessary to examine them. Instructions concerning causation [ 62 ] Recalling certain aspects of Mr. Lepage’s medical record and drawing a parallel with the testimony of the pathologist, Dr. Claude Pothel, the appellant argues that the traumatic brain injuries are perhaps not the cause of Mr. Lepage’s death.

He adds that an attempted resuscitation, a possibility that the close family members of Mr. Lepage had rejected, could perhaps have saved him. In his opinion, there were grounds for instructing the jury on the issue of novus actus interveniens, and the judge’s refusal to do so necessitates a new trial. He argues that the judge allegedly also erred in needlessly instructing the jury about

section 225 Cr C , instructions which, in the absence of arguments from the respondent concerning medical treatments, could only have discredited the appellant’s theory that the refusal of care by Mr. Lepage could break the chain of causation. [ 63 ] In Reid , cited by the appellant in support of this ground for appeal, it is precisely because the expert medical evidence tended

to show the existence of an intervening act having broken the chain of causation that the Nova Scotia Court of Appeal had considered it necessary to instruct the jury on the subject of causation. [12] In this sense, it was only complying with the well-established “air of reality” test. However, in the present case, the appellant’s theory is not based on any evidence adduced during the trial, and the only expert heard, Dr.

Claude Pothel, adopted a position to the contrary. [ 64 ] As David Watt points out, it is not sufficient to merely advance a defence for the trial judge to be required to submit it to the jury: Mere advancement of a defence, justification or excuse, or a basis of liability does not require its submission to the jury for their consideration. Even for positions expressly advanced by counsel conducting the case, there must be evidence in the trial record upon which a properly instructed jury acting reasonably could draw the inferences necessary to find guilt established or register an acquittal, as the case may be.

The principle that a defence or basis of liability should be left for a jury to consider if but only if there is a proper evidential foundation for it has a venerable common law history. [13] [Emphasis in original.] [ 65 ] In his Manual of Criminal Jury Instructions , David Watt clarifies the application of this principle in the particular case of causation in homicide: In most homicide prosecutions, especially where [the accused] is charged with murder, there is no great necessity for elaborate or extensive discussions about causation.

This instruction is for those cases where there is an air of reality to a claim that there was an intervening event that caused [the victim]'s death, hence distanced [the accused]'s conduct legally from it. [14] [Emphasis in original.] [ 66 ] In addition, as recalled by the Supreme Court in Cinous per McLachlin C.J.: [50] The principle that a defence should be put to a jury if and only if there is an evidential foundation for it has long been recognized by the common law.

This venerable rule reflects the practical concern that allowing a defence to go to the jury in the absence of an evidential foundation would invite verdicts not supported by the evidence, serving only to confuse the jury and get in the way of a fair trial and true verdict. … [51] The basic requirement of an evidential foundation for defences gives rise to two well-established principles. First, a trial judge must put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an accused. Where there is an air of reality to a defence, it should go to the jury.

Second, a trial judge has a positive duty to keep from the jury defences lacking an evidential foundation. A defence that lacks an air of reality should be kept from the jury. … … [53] In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true . … The evidential foundation can be indicated by evidence emanating from the examination in chief or cross- examination of the accused, of defence witnesses, or of Crown witnesses.

It can also rest upon the factual circumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by the accused. … [15] [Citations omitted. Emphasis added.] [ 67 ] Clearly, the trial judge’s decision not to include instructions on causation appears to comply with the teachings of the Supreme Court.

Instructions concerning section 231(5) of the Criminal Code [ 68 ] The appellant argues that the trial judge’s instructions about substantial cause or significant active involvement, underlying constructive murder, were too theoretical and technical to be sufficient. [ 69 ] The judge addressed the issue by listing the six essential elements to be proven beyond any reasonable doubt before the jury can render a guilty verdict of first degree murder under section 231(5) Cr C.

Each aspect was then examined separately, and the judge stating each element in the form of a question before providing relevant explanations to the jury. [ 70 ] Concerning the causation inherent in all homicides (phase 1), he stated: Did Shawn Denver-Lambert cause Mr. Lepage and Mrs. Lavoie's death? For

an act to cause someone's death it must be at least a contributing cause, one that is beyond something that is trifling or minor in nature. There must not be anything that somebody else does later that results in the accused act no longer being a significant contributing cause of Mrs Lavoie and/or Mrs [sic] Lepage death. [ 71 ] In addition, here is how he addressed the jury on the subject of the degree of participation required for first degree murder (phase 4): Did the accused do something that was an essential, substantial and integral part of the killing of Mrs. Lavoie and/or Mr. Lepage?

To prove this element Crown counsel must prove beyond a reasonable doubt that the accused did something that was essential, substantial and integral part.

I mean that the accused actively participated in the killings of Mrs Lavoie and/or Mr. Lepage. It's not enough to prove that the accused was present or that he played some minor role in the events. To convict someone of first degree murder Crown counsel must prove that the person is an active participant in the killing. To decide this issue you must consider all the evidence. Take into account the testimony of any witness including the expert who described the events that took place around the time Mr. Lepage and Mrs Lavoie were hurt and died. Once again, use your common sense.

If you're not satisfied beyond a reasonable doubt that the accused caused Mrs. Lavoie and/or Mr. Lepage's death in the manner I've just described, you must find the accused not guilty of first degree murder but guilty of second degree murder. Your deliberations would be over. [ 72 ] Although succinct, these instructions were sufficient to correctly instruct the jury on the degree of causation required under section 231(5) C r C.

They met the requirements that David Watt set out in that regard: The fourth element, summarized as "causation" above, has to do with the requirement in s. 231(5) that "the death is caused by that person". What is required, and what the instruction must make clear, is that [the accused] actively participated in killing [the victim]. The instruction must explain that this requirement is something more than what [the public ministry] has to prove in connection with the first and second elements in murder.

It may be preferable to expressly tell jurors that this element requires more than what is required to prove that [the accused] caused death of the deceased, or unlawfully caused [the victim]'s death, as the case may be. [16] [Emphasis in original.] [ 73 ] In Nette , the Supreme Court, per Arbour J., recalled the principles initially stated in Harbottle , [17] as to the degree of causation required in first degree murder: [62] … The degree of participation in the killing by a party whose liability for murder is based on aiding or abetting under s. 21(1) (

b) or (

c) of the Criminal Code or common intention under s. 21(2) of the Code , may, under the Harbottle formulation, be insufficient to permit a finding that the murder amounts to first degree under s. 231(5) , which requires that the murder be committed “by that person” in the course of committing the underlying offence… As explained by Cory J. in Harbottle , in order to raise culpability to first degree murder under s. 231(5) , something more is required. The “something more” is not that the accused caused more the death of the victim.

What is required is that his participation in the killing be sufficiently immediate, direct and substantial to warrant the greater stigma and sentence attached to first degree murder. … [65] It is clear from a reading of Harbottle that the “substantial cause” test expresses the increased degree of moral culpability, as evidenced by the accused person’s degree of participation in the killing, that is required before an accused can be found guilty under s. 231(5) of the Criminal Code of first degree murder.

The increased degree of participation in the killing, coupled with a finding that the accused had the requisite mens rea for murder, justifies a verdict of guilty under s. 231(5) of the Code. [18] [Emphasis in original.] [ 74 ] Arbour J. states as follows concerning the instructions that a judge must give to the jury with respect to causation: [72] In deciding how the applicable standard of causation should be articulated to the jury, trial judges have a discretion in choosing the terminology they wish to use to explain the standard. Causation issues are case-specific and fact-driven.

For that reason, it is important to afford a trial judge with the flexibility to put issues of causation to the jury in an intelligible fashion that is relevant to the circumstances of the case, including whether or not there are multiple accused persons or parties… [73] In light of Harbottle , where the jury must be instructed on first degree murder under s. 231(5) of the Code in addition to manslaughter or second degree murder, the terminology of “substantial cause” should be used to describe the applicable standard for first degree murder so that the jury understands that something different is being conveyed by the instructions concerning s. 231(5) of the Code with respect to the requisite degree of participation of the accused in the offence.

In such cases, it would make sense to instruct the jury that the acts of the accused have to have made a “significant” contribution to the victim’s death to trigger culpability for the homicide while, to be guilty of first degree murder under s. 231(5), the accused’s actions must have been an essential, substantial and integral part of the killing of the victim. [19] [ 75 ] The trial judge’s instructions concerning the causation required under section 231(5) Cr C therefore complied with the teachings of the Supreme Court.

In addition, the appellant does not claim that these instructions did not comply with the state of the law, but rather that the judge allegedly adopted too abstract an approach, thus depriving the jury of a clear understanding of the concepts involved. [ 76 ] I consider that the judge’s instructions concerning the degree of participation required under section 231(5) Cr C , without being perfect, were nevertheless adequate and sufficient, so that this ground of appeal should be dismissed. [ 77 ] Furthermore, as pointed out by Lamer C.J. in Jacquard , it is not necessary to find that the judge’s instructions to the jury were absolutely impeccable to reach this conclusion: [32] …Moreover, I cannot emphasize enough that the right of an accused to a properly instructed jury does not equate with the right to a perfectly instructed jury.

An accused is entitled to a jury that understands how the evidence relates to the legal issues. This demands a functional approach to the instructions that were given, not an idealized approach to those instructions that might have been given… [20]

Instructions concerning planning and deliberation [ 78 ] The appellant criticizes the trial judge for failing to bring to the jury’s attention evidence precluding the respondent’s theory, according to which the murders of Mrs. Lavoie and Mr. Lepage were committed by the appellant and were planned and deliberate.

According to the appellant, the judge allegedly omitted to review the evidence relevant to his state of mind during the events. [ 79 ] It must be noted first that the trial judge’s general instructions about the concepts of “planned” and “deliberate” were consistent with the state of the law, clear and complete: In order to establish that these murders were first degree murder, Crown counsel must prove both [that it was planned and deliberate]. It's the murder itself that must be both planned and deliberate, not something else that the accused did or said.

Plan means a calculated scheme of [sic] design that has been carefully thought out. The consequences of it have been talked over and seized [sic] up. The plan does not have to be complicated nor sensible. It may be a very simple plan, one that is quite easy so seize [sic] up. An important factor is the time it took to develop the plan, not how much or how little it took between developing it and carrying it out. One person may prepare a plan and carry it out immediately. Another may prepare the plan, wait a while, even quite a while to carry it out.

A planned murder is one that is committed as a result [sic] a scheme, a plan that has been previously formulated and designed. It is the implementation of the scheme or design. A murder committed on a sudden impulse and without premeditation, even with an intention to kill, is not a first degree murder. "Deliberate" is not a word that we often use speaking to other people. It means considered, not impulsive, carefully thought out not hasty or rash, slow in deciding, cautions [sic]. A deliberate act in one that the actor has taken to time to weigh the advantages and disadvantages of.

The deliberation must take place before the act of murder starts. A murder committed on a sudden impulse and without prior consideration even with an intention to kill is not a deliberate murder. It's for you to say whether the murders were both planned and deliberate. To decide this issue you should consider all the evidence.

Among the things you should consider are these: What the accused did or did not, how he did it or did not, what he said or did not say, his condition and state of mind . [Emphasis added.] [ 80 ] Not only does the judge ask the jury to consider the totality of the evidence that he had in fact summarized at the beginning of his instructions, but also, at the time of reviewing the respective position of the parties, he pointed out for each count the appellant’s contention that there was no evidence of planning: “According to Mtre Duval, there is no evidence that the killing of Mrs.

Lavoie was planned and deliberate.”; “And finally, on first degree murder he said that there's no evidence that the killing of Mrs. [sic] Lepage was planned and deliberate …”. [ 81 ] The more or less favourable assessment of the appellant’s position concerning the different evidence was purely the jury’s responsibility. [ 82 ] This ground of appeal is without merit and must fail. [ 83 ] It is worth noting that the appellant, who nonetheless had the opportunity of making this objection to the trial judge immediately after the instructions, did not do so.

Author Tristan Desjardins has the following comments on this issue: [ translation] The fact that counsel for the appellant did not object to the instructions given to the jury does not prevent the convicted person from appealing on the grounds that such instructions contained errors of law justifying that the verdict be set aside. It may, however, be a factor to be considered, particularly when the appellant alleges that the instructions were insufficient . [21] [ Citations omitted.

Emphasis added.] [ 84 ] In fact, per Fish J., the Supreme Court, came to a similar conclusion: While the obligation to ensure that juries are properly instructed clearly falls to the trial judge, counsel should not abdicate their duty of assisting the court. As Bastarache J. recently explained in R. v. Daley : ... it is expected of counsel that they will assist the trial judge and identify what in their opinion is problematic with the judge’s instructions to the jury. While not decisive, failure of counsel to object is a factor in appellate review.

The failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation. [22] In this light, I note without more that counsel did not object to the judge’s charge in this case. [23]

Comments on the fact that the appellant did not intervene while his accomplice was beating Mrs. Lavoie [ 85 ] The appellant faults the judge for having invited the jurors to ask themselves why the appellant made no move to stop the acts of violence committed against Mrs. Lavoie by his accomplice Pierre Lévesque. He argues that not only did the judge appeal to the jurors’ emotions, but his words also prompted them even to consider whether he had a legal responsibility to intervene: The defense lawyer submits that Lévesque hit Mr.

Lepage because his wounds are a lot more important than the one his client admitted causing with the caliber .12 shotgun. Nowhere in all the testimony it's mentioned that Mr. Lévesque hit Mr. Lepage even once. You can ask yourself if you believe the accused when he tells you that he hit Mr. Lepage only once. If he hit Mr. Lepage only once, you can ask yourself why he made no move to stop the beating of the lady . Mr.

Lambert is presumed to be innocent on each count unless and until the Crown has proven his guilt on each count beyond a reasonable doubt. [Emphasis added.] [ 86 ] With these words, which cannot be considered inflammatory and were used when he reviewed the evidence, the judge simply invited the jurors to ask themselves different questions in order to test the appellant’s credibility. Indeed, in doing so, he made it a point to remind the jury that the appellant had the benefit of the presumption of innocence. [ 87 ] This ground of appeal is therefore without merit and I would dismiss it.

Conclusion [ 88 ] In relation to the first count (murder of Maurille Lepage), I would dismiss the appeal. [ 89 ] In relation to the second count (murder of Béatrice Lavoie), I would allow the appeal, set aside the verdict of guilty and order a new trial. JACQUES VIENS, J.A. (AD HOC)