2012 QCCA 59, 2012 QCCA 59

Unofficial English Translation Godbout c. R. 2012 QCCA 59 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002478-100 (415-01-017038-082) DATE: January 9, 2012 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. LOUIS ROCHETTE, J.A. JEAN BOUCHARD, J.A. ROBERT GODBOUT APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The appellant appeals from a verdict pronounced on December 10, 2009, by the members of a jury presided by the Honourable Mr.

Justice Richard Grenier, sitting in Superior Court, Criminal Division, District of Arthabaska, which convicted him of first degree murder. [ 2 ] For the reasons of Chamberland J.A., with which Rochette and Bouchard JJ.A. agree: [ 3 ] DISMISSES the appeal. JACQUES CHAMBERLAND, J.A. LOUIS ROCHETTE, J.A. JEAN BOUCHARD, J.A. Mtre Mylène Lareau BROUILLARD, BIBEAU For the appellant Mtre Jean-François Bouvette Criminal and penal prosecutor For the respondent Date of hearing: November 21, 2011

REASONS OF CHAMBERLAND, J.A. [ 4 ] The appellant was convicted of the first degree murder of Ms. Renée Vaudreuil, the city manager of the small town of Saint- Rémi-de-Tingwick. The murder occurred in the early afternoon of January 14, 2008. [ 5 ] The murder was committed in the municipal offices. The victim was shot twice with a .410 calibre gun, once in the chest and once in the head. She also received at least four blows to the head from a blunt object.

Following this action, the murderer attempted to hide his tracks by burning the municipal offices. [ 6 ] The evidence identifying the murderer was purely circumstantial, based as it was on testimony to the effect that the appellant was near the municipal offices approximately around the time the crime was committed and that he had motive. Indeed, the very morning of the murder, Godbout's appeal from a judgment rendered in favour of the municipality on September 28, 2007, was dismissed following a motion to dismiss the appeal.

That judgment of the Superior Court ordered him to cease keeping animals in the building he owned, which was situated at . . . (formerly a school). Godbout's counsel informed him of the

summary dismissal of his appeal around 10:45 a.m. [ 7 ] The appellant filed a defence to counter the evidence of motive by attempting to establish that he was not that disappointed by the Court's judgment because the appeal had been devised merely to gain some time to sell his animals in the spring of 2008. He called a few witnesses to testify to the steps he had taken to this end. [ 8 ] The appellant testified and, in answer to a question by his counsel, he officially denied having killed Ms. Vaudreuil.

He did acknowledge having gone by the municipal offices in the early afternoon on the day of the murder but denied entering the offices. He also asserted that he did not possess and had never possessed firearms. [ 9 ] The appellant maintained that it was impossible for him to have been in the municipal offices at 2 p.m. since he was in Victoriaville at 2:30 p.m. His trip to the local Caisse populaire was caught by the surveillance cameras and his clothing did not match the description given of them by the main Crown witness, Mr.

Pierre Blanchette. [ 10 ] The appellant was arrested at his home, late on the night of January 15, 2008, the day after the murder. Police officers searched his home without finding any evidence whatsoever that was relevant to their investigation. The same is true of the crime scene, where no physical evidence linking the appellant to the crime was found. There was no trace of his DNA either; in fact, the only DNA sample found on the crime scene was the victim's. Police officers also collected samples from ten of the appellant's body parts, without finding any traces of the victim's blood or DNA.

Finally, enquiries made with the Gun Registry did not reveal whether the appellant possessed a weapon. [ 11 ] The appellant raises five grounds of appeal, the order of which will be changed here to reflect the order in which events unfolded at trial: 1. The judge erred in law by dismissing a motion for a change of venue because of the highly sensitive nature of the case, the appellant being accused of having murdered the city manager of a small community. 2.

The judge erred in law during jury selection by failing to give sufficient instructions to the sworn triers, thereby depriving the appellant of his right to a fair and impartial trial; 3. The trial judge erred in law by refusing to end the trial following the online posting on a local newspaper's website, in violation of a publication ban, of information likely to affect the fairness of the trial; 4. The judge erred in law with respect to his instructions by failing to direct the jury as to the evidence of propensity; 5.

The judge erred in law by allowing the jury, during its deliberations, to separate and by allowing some of its members to travel unsupervised. [ 12 ] In short, the appellant argues that the circumstances surrounding his trial are such that he was deprived of his right to a fair trial and that the local media coverage of his case, both before and during the trial, compromised this right.

He also argues that the prosecution's abundant evidence concerning his possible motive may have, in the absence of proper instructions on the matter, had the perverse effect of his being judged on the basis of his propensity to commit the crime rather than on the evidence of the essential elements of the offence. Motion for a change of venue [ 13 ]

Section 599 of the Criminal Code authorizes a change of venue to a territorial division in the same province other than that in which the offence would otherwise be tried if "it appears expedient to the ends of justice". [ 14 ] The appellant made such an application on October 9, 2009, and in support thereof, he filed a considerable number of articles published in the local newspapers or posted online. [ 15 ] The Crown contested the motion. [ 16 ] In a judgment rendered from the bench, the trial judge dismissed the motion. [ 17 ] In his view, it was not shown that there was a groundswell of sympathy for the victim or of open hostility for the accused covering the entire District of Arthabaska.

He was certain that an impartial jury could be selected without any problems and was

prepared to take any additional precautions required to ensure that the accused would get a fair trial. [ 18 ] He even invited the parties to send him the questions that they wished him to ask the potential jurors to ensure their impartiality, in addition to the usual basic questions asked by the judge in similar circumstances. [ 19 ] The appellant argues that the judge imposed too heavy a burden on him by (1) requiring that it [translation] "be clearly shown that a trial would be unfair if it was held in that venue", and (2) asserting that the [translation] "criterion is to find twelve jurors who have the requisite objectivity, the requisite impartiality to hear this trial", and finally, (3) asserting that evidence of an environment unpropitious to holding a trial [translation] "should be adduced through testimony" (the words in quotation marks are the judge’s words when he rendered the decision). [ 20 ] The Crown points out that the onus of demonstrating the necessity for a change of venue rests on the party seeking that change and that this burden is a heavy one.

It maintains that the judge did not err with respect to the burden of proof or the applicable criterion and that his assessment of the evidence adduced by the appellant in support of his motion is free from error. [ 21 ] In my opinion, even though I acknowledge the ambiguity of some of the judge's remarks in his judgment from the bench, this first ground of appeal is without merit. [ 22 ] In principle, a trial must be held in the district where the crime was committed; a change of venue is the exception. [ 23 ]

Section 599 of the Criminal Code sets out the test respecting a change of venue in very general terms, to wit: when "it appears expedient to the ends of justice". [1] In the face of such clear wording, one may wonder why the judge required that it [translation] "be clearly shown" that the trial would be unfair if it was held – per the rule – in the district where the crime was allegedly committed. [ 24 ] That being the case, after reading the entire decision, I do not think that the judge was in fact more demanding toward the appellant than he was required to be. [ 25 ] In R. v.

Charest , [2] the Court opted for a test combining both the need for an impartial jury and the all-encompassing necessity of a fair trial, while emphasizing the discretion bestowed on trial judges in matters involving changes of venue. Fish J.A. wrote, on page 349: With respect, I prefer the test formulated in Collins [3] to the narrower one laid down by Aikins J. in Beaudry . It adds to the "impartial jury" standard the additional and broader concept of a fair trial . In my view, a fair trial can be conducted only in a reasonably serene environment .

Extensive prejudicial publicity shortly before the trial, pronounced hostility toward the accused, widespread sympathy for the victim, and a frightened or enraged community, surely create – especially in a small judicial district – the kind of emotionally charged atmosphere in which the ends of justice may be best served by removal of the trial to another venue. (Emphasis added.) [ 26 ] Twenty years on, these teachings still stand true, and it is my opinion that the trial judge followed them.

The accused seeking a change of venue therefore has the onus of proving, on a balance of probabilities, that the change is necessary to guarantee a fair trial before an impartial jury, or in other words, that the ends of justice require that the trial be held in another district. [ 27 ] When the judge referred to the selection of an impartial jury, he echoed the comments of Fish J.A. in Charest . I see nothing wrong with this. [ 28 ] As for the criticism that the judge required testimonial evidence, it is in my opinion without merit. It illustrates the danger that lies in taking a sentence out of context.

Despite the ambiguity of his comments, the judge certainly did not intend to state that a motion for a change of venue could never be granted in the absence of testimonial evidence. Rather, he dwelt on the probative value of the written evidence adduced by the accused, not on some obligation to call witnesses.

The judge indicated that, absent written evidence of any public hostility or rage against the accused, it was necessary to make this demonstration through witnesses, as had been done in Charest . [ 29 ] As for the rest, the appellant has not convinced the Court that the judge erred in his assessment of the evidence adduced before him. [ 30 ] It is important not to confuse the municipality of Saint-Rémi-de-Tingwick and the District of Arthabaska. [ 31 ] Ms.

Vaudreuil's murder doubtless received extensive media coverage in the local outlets, but the judge was not wrong to observe that the large majority of the articles filed as evidence were already relatively dated when the trial got under way. In fact, among the articles filed by the accused, only two were from 2009 (January 19, 2009, to be precise), whereas jury selection occurred ten months later on November 23, 2009. [ 32 ] The appellant has not convinced me that the judge improperly exercised his discretion by refusing to change the venue to another district. 2. Instructions to the triers [ 33 ]

Section 640 of the Criminal Code provides for the appointment of two jurors (or two persons if no jurors have yet been sworn) to determine the impartiality of unsworn jurors and, if need be, whether the grounds for challenge have merit. [ 34 ] The appellant maintains that the judge did not adequately inform the various triers about their role, the onus of proof, the steps to follow, and the meaning of [ "impartiality", and that this deficiency amounts to an error of law justifying the intervention of the Court of Appeal. Generally speaking, he criticizes the judge for trivializing the role that the triers were to play in selecting an impartial jury.

[35] This criticism is without merit, in my opinion. [36] Before proceeding, it is useful to recount how events unfolded and to acknowledge that things could have been done better eventhough, in my opinion, these minor flaws do not call into question the validity of the empanelling process. [37] Jury selection took place on November 23, 2009. At the very outset, the judge addressed the group of potential jurors. After theusual words of welcome, he explained the significance of their role and the long-standing tradition of trials by jury.

He then insisted onthe notion of impartiality, which he described as being essential to the empanelling process. His comments were the following: [translation] Jury selection requires one (1) crucial condition: impartiality. Being impartial involves agreeing to judge according to the evidencebrought before the Court and setting aside preconceived notions and prejudices. The guilt or innocence of an accused must be basedstrictly and solely on the evidence presented at trial.

You may have heard talk about the present case, you may have read or heard information about it because, in this day and age, thepublic knows just about everything that goes on.

Remember that the fact that you have heard or read news concerning this case does not prevent you in any way from being a juror,inasmuch as you are disposed, in all honesty, to set all that aside and to base your verdict strictly and solely on the testimony heard andthe evidence presented before you. and a moment later: [translation] Now, I was saying, the oath of impartiality requires that your verdict be based simply and solely on the evidence that you will hear attrial. [38] The judge then asked counsel to identify themselves, and reminded potential jurors that they could be excused from jury duty incertain specific circumstances. [39] He went on to explain the jury selection process: Two persons would first be chosen at random to act as triers and these twowould then be replaced by those persons who were chosen as jurors, and so on and so forth.

He briefly described their role, especiallywith respect to the impartiality of potential jurors. The judge explained that ultimately it was up to the triers to decide this question. [40] The judge then explained to the potential jurors the notion of peremptory challenges, but he did not explain the notion ofchallenges for cause. [41] He then asked the clerk to draw the names of the first twelve potential jurors and asked the rest to leave the room. [42] After a short break, the judge swore the first two persons whose names had been drawn to act as triers. [43] He briefly reiterated what their role was to be.

It was up to them, [translation] "after discussing it between themselves", todecide whether or not a potential juror had the requisite impartiality to act as juror. He did not make any mention of their role respectingchallenges for cause, however. [44] The jurors were then chosen and, in turn, acted as triers by replacing their predecessors. Throughout the jury selection process,the judge did not revisit the role of the triers except briefly, when juror number 10 was chosen and was asked to act as trier with jurornumber 9.

It is also relevant to add that, as luck would have it, juror number 6 was one of the two initial triers sworn by the judge. [45] Admittedly, as things progressed and jurors were required to act as triers, the judge did not reiterate his initial statementsconcerning the role of the triers, but in my view it was unnecessary to do so. They were all in the courtroom when the judge explainedthe selection process and they heard him describe the role of triers. It seems to me that it would belittle the intelligence of jurors torequire the judge to repeat the same comments each time a juror became a trier. R v.

Li (2004), (ON CA), 183 C.C.C.(3d) 48 (Ont. C.A.) does not apply here since, in that case, some of the triers were not included in the group of potential jurors who werepresent when the judge addressed the first two triers. [46] When the judge explained the role of triers at the beginning of the process, when all the potential jurors were present in thecourtroom, he was not as thorough as he might have been.

He did not tell them that the decision should be on a balance of probabilities,that they could discuss amongst themselves inside or outside the courtroom, and that, if they could not agree within a reasonable time,they should inform him.

He did not explain the difference between peremptory challenges and challenges for cause or the role theywould be called on to play in the case of the latter. [47] But, in my opinion, these few flaws are not fatal and do not call into question the validity of the empanelling process. [48] First, contrary to the appellant's argument, the explanations of the judge regarding the notion of impartiality were perfectly clearand adequate, which was not the case in R. v. Moore-McFarlane (2001), (ON CA), 160 C.C.C. (3d) 493 (Ont.

C.A.),cited by the appellant in support of his ground of appeal. [49] Also, a reading of the transcripts of the jury selection reveals that challenges for cause were never an issue that needed to bedetermined. There is no doubt in my mind that, had there been such a challenge, the judge would have explained to the current triers theirrole in this respect. [50] A reading of the transcripts also shows that the triers perfectly understood their role, even going so far as to reject a few

candidates from among the group of persons questioned by the judge. [ 51 ] Finally, although this is not determinative, I note that throughout the jury selection process, the appellant and his counsel never raised any issues whatsoever regarding the manner in which the triers were fulfilling their duties. In this context, I find it impossible to conclude that the jury selection was tainted by any irregularity whatsoever and that the appellant consequently did not receive a fair trial. 3. Motion for mistrial [ 52 ] On the fifth day of the trial, November 30, 2009, counsel for both parties met with the judge in his office and gave him a copy of an

article written by journalist Claude Thibodeau of the La Nouvelle newspaper. This

article had been posted on the Internet on November 22, 2009, the evening before the beginning of the trial, and contained information that the jurors were not meant to know; specifically, it contained comments made by the trial judge in his ruling on the appellant's application for release (which was dismissed). [ 53 ] The judge questioned the journalist and, after lecturing him, ordered him to take down the

article from the site, which was done at 11:30 a.m. that same morning. [ 54 ] Aware that there was a risk the jurors might have read this article, the judge questioned them, one at a time, to investigate this matter. [ 55 ] At the end of this process, appellant's counsel asked the judge to order a mistrial, which the judge rejected out of hand. While he acknowledged the prejudicial nature of the

article posted online, he deemed that there had been no real violation of the accused's right to a fair trial, being convinced by his questioning of the jurors that they had not been contaminated. [ 56 ] The appellant maintains that only a new trial would have ensured that he be judged solely on the evidence, not on any negative or tendentious information gleaned from the Internet. [ 57 ] Before going any further, it would be useful to consider the judge's investigation of the twelve jurors. [ 58 ] Out of all the jurors, only two said that they had visited La Nouvelle 's Internet website since the trial had gotten under way – jurors 4 and 8. [ 59 ] Juror 4 stated that he visited it on the [translation] "first day" of the trial and read an

article on the testimony of the arson technician (witness heard on November 24, 2009). He stated under oath that he had not visited the site prior to being empanelled and did not have access to information other than that which he had heard at trial. [ 60 ] Juror 8 stated that he had been on the site the preceding Friday, November 27, 2009, and learnt that the accused would present an alibi defence, which he had not known before.

Like the juror before him, he stated that he had not visited the site prior to being empanelled and had not had access to information other than that which he had found out at trial. [ 61 ] Jury selection took place on November 23, 2009. [ 62 ] Following his investigation, the judge found that the members of the jury had not been contaminated by the

article of November 22, 2009. None of the members of the jury had been aware of this article, either prior to empanelling or after. The risk created by the online posting of the

article was not realized.

There was no contamination of the jury; therefore, there was no violation of the accused's right to a fair trial. [ 63 ] In this context, the appellant has not convinced me that the judge erred by refusing to end the trial prematurely. [ 64 ] Declaring a mistrial is a matter of judicial discretion and must be done with circumspection, as a last resort in the conduct of a trial. [4] This measure is appropriate only where there are serious grounds to believe that there are no other means of preserving the fairness of the trial. [ 65 ] In this case, it appears that the judge took the necessary precautions and properly exercised his discretion by refusing to declare a mistrial. [ 66 ] The appellant also faults the judge for not giving the jurors instructions that were appropriate to the situation when the trial continued that afternoon.

In his view, the judge should have officially warned them not to consult the media and to completely ignore what they might have heard to date.

Overall, the appellant argues that the judge's instructions were not forceful enough. [ 67 ] I do not share this view. [ 68 ] Jurors should be trusted. [5] In his preliminary instructions, the judge explained to the jurors that their verdict could be based only on the evidence presented at trial and that they could not look for information about the case anywhere else than in the evidence presented at trial. [ 69 ] In the afternoon following the investigation respecting the twelve jurors, the judge pressed this point by telling them, amongst other things, to [translation] "beware of information coming from sources other than the Court" and to be [translation] "[wary] of anything coming from the media". [ 70 ] It seems to me that, in the context, the message was very clear and that it was neither necessary nor useful to add anything more. 4.

Absence of instructions on the evidence of propensity [ 71 ] The Crown called several witnesses to establish the appellant's state of mind and the motive that may have driven him. The trial judge gave an account of the testimony in his

summary of the evidence for the jury.

[72] Maryse Michaud, the victim's cousin, stated that the victim had told her, a few months before her death, that the appellant hadcalled her a [translation] "big cow" and added that all his problems with the municipality were her fault. The victim had told her that shewas afraid of the appellant. [73] At this juncture, I would add that, in the context of this testimony, the judge explained to the jurors why he was allowing thewitness to report the comments of the victim even though, as a general rule, hearsay evidence is prohibited.

He stated that theprosecution was attempting to prove the appellant's behaviour toward the victim in the period of time leading up to her death.

Later, inhis charge to the jury, the judge stated that this evidence (as well as the testimony of Alain Dubois, Jean-Pierre Sinotte, Yves Langoisand Karine Dubois) purposed to establish the accused's state of mind and his possible motive. [74] Alain Dubois, a municipal councillor, asserted that in December of 2007, the appellant had told him that if his appeal failed, hewas going to [translation] "set fire to the whole thing", which, according to the witness, referred to the school where the appellant keptthe animals. [75] Jean-Pierre Sinotte, another municipal councillor, asserted that in December of 2007, following municipal elections, theappellant allegedly told him that if ever the municipality was successful in the dispute that opposed them, he would [translation] "go get[his] four-ten (.410) and [that things would go] very fucking badly".

He added that the appellant referred to the victim as a [translation]"big cow" and that the victim was scared of the appellant. [76] Karine Dubois saw the appellant on January 13, 2008, the evening before the murder, going door to door with a petition. Sherecalled that the appellant called Ms.

Vaudreuil a [translation] "big cow" and that he bore a grudge against the mayor, adding that he wasgoing to [translation] "rub him out" and that each member of the municipal council would be getting [translation] "a bullet to the brain". [77] Counsel for the appellant addressed an additional piece of evidence at length during the hearing, namely, the demand letter,dated January 10, 2008, which counsel for Pierre Blanchette sent to the appellant and in which it was written, inter alia, that theappellant's comments indicated [translation] "spite, vengefulness, and malice . . .

". [78] This letter, filed into the record by the witness Blanchette during his examination, echoed another letter the appellant haddisseminated to every resident of the municipality in the weeks leading up to the murder. This letter contained very harsh remarksregarding Mr. Blanchette and demanded the mayor's resignation. That document was filed into the record, at the appellant's request,during the testimony of Maryse Michaud. [79] When the judge allowed the filing of the demand letter, he warned the jurors that the document proved only that it had beensent and that it did not prove its contents.

He also told them not to hold the fact that there was a dispute between Mr. Blanchette and theaccused against the latter; he stated that this should not distract them from their role, which was to decide whether the prosecution hadproved beyond a reasonable doubt that the accused had committed the offence with which he was charged. [80] The appellant argues that the scope of the Crown evidence concerning his state of mind and the motive that may have led himto harm Ms.

Vaudreuil required that the judge warn the jury not to use this evidence to convict him merely because he might be the typeof person likely to commit the offence with which he was charged (evidence of propensity). The evidence was of such scope that itvitiated the fairness of the trial.

The appellant adds that the prosecution's objective was to prove that he was belligerent, vindictive andviolent and therefore the type of man to commit murder, instead of establishing that he had a reason to take it out on the victim. [81] With respect, I cannot follow the appellant down this road. [82] I would first point out that, with regard to the hearsay evidence (the testimony of Ms.

Michaud recounting the victim'sconfidences made a few months prior to her death), the judge explained to the jurors why he was allowing this evidence, whilereminding them that it was up to them to assess its reliability and probative value. [83] Evidence of the motive that may incite one person to harm another is admissible in a murder trial even if motive does notconstitute an element of the offence. It is an important question of fact that, in a situation where the evidence is circumstantial, mayenable the identification of the murderer and establish the motive behind the offence.

It is therefore one piece of evidence among others,and the judge did not need to give the jurors a specific warning. [84] In R. v. Pasqualino,[6] the Court of Appeal for Ontario summarized the law on the matter: [64] The appellant submits that the trial judge erred by not instructing the jury on the proper use of the abuse evidence in relation tothe issues at trial.

I take this to suggest that the trial judge should have provided a “bad character” caution with regard to this evidence ofprior discreditable conduct. [65] A consistent line of authority in this court states that no such caution is required for evidence of past threats or other badconduct by the accused against the victim, if such evidence is admissible in relation to motive.

This is because such evidence is admittedon the basis that someone who has threatened or acted against a specific victim in the past is more likely to have engaged in bad conductagainst the same victim than someone who has not, and a jury is permitted to draw an adverse inference of guilt from such conduct. [66] This line of precedent began with R. v.

Jackson (1980), (ON CA), 57 C.C.C. (2d) 154, in which JusticeMartin stated at pp. 168–69: [W]here evidence of threats against the victim are admissible on the issue of motive, there is no requirement that the trial Judge shoulddirect the jury that they are not to infer from the threats that the accused is a person who, from his criminal character or conduct, is likelyto have committed the crime with which he is charged. Evidence of motive is a circumstance to be considered along with all the othercircumstances. [Emphasis in the original text.] [67] In R. v.

Merz, supra at para. 59, Justice Doherty stated his agreement with the principle set down in Jackson:

I agree with the view expressed in Jackson. The evidence of the threats made by the appellant was evidence of motive which, in turn,constituted circumstantial evidence of identity and intent. I see no reason to warn the jury against using the evidence to infer propensityand hence to infer that the accused committed the crime when the more direct and powerful inference to be drawn from that evidence isthat the accused had a motive to kill Ms. Murray. The trial judge properly instructed the jury as to how they could use evidence ofmotive.

The limiting instruction normally given when evidence of prior bad acts by the accused is placed before the jury would make nosense in the context of evidence of motive. An instruction like that called for by the appellant could only serve to confuse the jury. [68] This principle was more recently reaffirmed by Justice Moldaver in R. v. Krugel (2000), (ON CA), 143C.C.C. (3d) 367 at paras. 84–92 (Ont. C.A. ).

The appellant has not provided any arguments or countervailing authority to contest thelogic supporting this precedent, and I see no reason for doing so. [69] In the present case, the only issues contested at trial concerned the appellant’s intent and the defence of provocation. The trialjudge in his voir dire ruling specifically explained, with regard to every item of past discreditable conduct evidence that he admitted, thathe was admitting it as relevant to motive.

He similarly labelled all of this evidence as going to motive in his charge to the jury. [70] I therefore conclude that there was no need for the trial judge to provide a bad character caution in the jury charge and hetherefore did not err by omitting such a caution. (Emphasis added.) [85] The evidence provided by the Crown was in direct connection with the circumstances of the offence: the way the accusedtreated Ms. Vaudreuil, the allusion to fire and to the use of a firearm (oddly enough, a .410 calibre gun).

This evidence was measured,relevant and far from what could have constituted evidence of propensity. [86] The judge explained to the jurors that the purpose of the testimony of Ms. Michaud and Ms. Dubois and that of Messrs. Sinotte,Dubois and Langlois was to establish the appellant's state of mind at the time of the murder and to prove that he had a possible motive toharm Ms. Vaudreuil. He explained how to approach hearsay evidence and out-of-court statements that the appellant may have made tovarious witnesses in the months, weeks, or days leading up to the murder.

There was no need, in my opinion, for him to add a warning,although he did do so with respect to the appellant's criminal record. [87] This fourth ground is therefore without merit. 5. Juror travel during deliberations [88] At the hearing, counsel for the appellant did not address this last ground of appeal, declaring that she would rely on what hadbeen written in her factum. [89]

Section 647 Cr. C. is at the crux of this argument: 647.

(1) The judge may, at any time before the jury retires to consider its verdict, permit the members of the jury to separate.

(2) Where permission to separate under subsection (1) cannot be given or is not given, the jury shall be kept under the charge of anofficer of the court as the judge directs, and that officer shall prevent the jurors from communicating with anyone other than himself oranother member of the jury without leave of the judge.

(3) Failure to comply with subsection (2) does not affect the validity of the proceedings.

(4) Where the fact that there has been a failure to comply with this

section or

section 648 is discovered before the verdict of the jury isreturned, the judge may, if he considers that the failure to comply might lead to a miscarriage of justice, discharge the jury and (

a) direct that the accused be tried with a new jury during the same session or sittings of the court; or (

b) postpone the trial on such terms as justice may require.

(5) The judge shall direct the sheriff to provide the jurors who are sworn with suitable and sufficient refreshment, food and lodging whilethey are together until they have given their verdict. [90] The appellant maintains that the judge erred by allowing the jurors to travel by taxicab on December 10, 2009, without having aguard present in each of the vehicles, thereby violating his right to a fair trial. [91] Here is the judge's order, quoted verbatim from the minutes: [translation] The Court asks the clerk to note the comments of the sheriff – that a verbal directive was given to the taxi drivers that all four taxis wereto arrive at the same time.

One guard was to take a seat in the first taxi and one in the last. The taxis were instructed to follow each otherto arrive at their destination at the same time. The drivers were notified that they were not to discuss the case and that the radio was to beoff. The Court ORDERS that the courtroom be emptied for the purposes of this exercise. The Court RECOMMENDS that the door to thejury room be padded. [92] The appellant argues that this manner of proceeding runs counter to subsection 647(2) Cr.

C. and that his right to a fair trial wasviolated, which would justify the Court intervening and ordering a new trial. [93] This Court does not share his view.

[ 94 ] The recording system broke down on the morning of December 10, 2009.

It is therefore impossible to know the exact content of the remarks made by counsel and the judge. [ 95 ] What is certain is that the judge's order regarding jury travel required (1) that the four taxicabs follow each other and get to their destination at the same time, (2) that a guard be present in the first cab and that another be present in the last one, (3) that the drivers be warned to refrain from discussing the case, and (4) that the radio in their vehicles be off. [ 96 ] In this context, I find that adequate measures were taken to ensure that this exceptional taxi trip would not violate the appellant's right. [ 97 ] Subsection 647(3) Cr.

C. states that failure to comply with the requirements of subsection 647(2) Cr. C. "does not affect the validity of the proceedings" and I cannot see, in this case, any reason to stray from the rule. [ 98 ] The appellant then argues that the judge should have told the jurors that they could not deliberate in sub-groups, but only together as one group, and that having failed to do so, this Court would be justified to intervene. [ 99 ] I do not agree.

The judge's instructions to the jurors regarding their deliberations were above reproach. [ 100 ] Finally, the appellant argues that the absence of stenographer's notes from the morning of December 10, 2009, may have deprived him of a ground of appeal, of the possibility of better supporting his grounds of appeal, or even of the possibility of uncovering an error of law. [ 101 ] This ground of appeal must fail. It is common ground that the incomplete nature of transcripts does not automatically justify the intervention of the Court of Appeal.

Generally speaking, intervention is justified only in the presence of a serious possibility that the missing portion of the transcript contains an error or that this gap has deprived the appellant of a ground of appeal. Each case thus turns on its merits and it is necessary to examine the context in which the gap occurred. [7] [ 102 ] I see here no "serious possibility" that the missing portion of the transcript concerning the discussions between counsel, the judge and the sheriff on the morning of December 10, 2009, contains an error of law or deprives the appellant of a ground of appeal.

I have no reason to believe that the notes recorded in the minutes at the judge's behest do not accurately reflect the comments of the sheriff regarding the instructions given to the taxi drivers. [ 103 ] The recording system's malfunction occurred while counsel and the judge were discussing a relatively minor issue, the transport of the jurors from point A to point B. The missing portion of the transcript does not touch upon the evidence or the judge's instructions to the jury.

In this context, I find that it would not be appropriate to order a new trial based solely on this ground. [ 104 ] For all of these reasons, I would dismiss the appeal. JACQUES CHAMBERLAND, J.A.