2020 QCCA 281, 2020 QCCA 281

Ménard c. R. 2020 QCCA 281 COUR D’APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N° : 500-10-006551-178 (500-01-015745-083) DATE : Le 21 février 2020 FORMATION : LES HONORABLES ALLAN R. HILTON, J.C.A. CLAUDINE ROY, J.C.A. GENEVIÈVE COTNAM, J.C.A. THAROUL MÉNARD APPELANT – accusé c.

SA MAJESTÉ LA REINE INTIMÉE – poursuivante ARRÊT [ 1 ] L’appelant se pourvoit contre le verdict de culpabilité de meurtre au premier degré (art. 235 C. cr .) prononcé le 7 octobre 2017 par un jury de la Cour supérieure présidé par l’honorable juge André Vincent. [ 2 ] Pour les motifs du juge Hilton, auxquels souscrivent les juges Roy et Cotnam, LA COUR : [ 3 ] REJETTE le pourvoi. ALLAN R. HILTON, J.C.A. CLAUDINE ROY, J.C.A. GENEVIÈVE COTNAM, J.C.A.

M e Catherine Ranalli RANALLI AVOCAT Pour l’appelant M e Laurent-Alexandre Duclos-Bélanger DIRECTRICE DES POURSUITES CRIMINELLES ET PÉNALES Pour l’intimée Date d’audience : Le 6 novembre 2019

REASONS OF HILTON, J.A. I INTRODUCTION [ 4 ] Tharoul Ménard appeals his conviction on October 7, 2017 of first degree murder by a jury of the Superior Court at which the Hon. Mr. Justice André Vincent presided. [ 5 ] In the course of these reasons I will be referring to testimony and proceedings that transpired at the appellant’s first trial at which he was convicted of first degree murder, which resulted in this Court ordering a new trial, [1] as well as at a second trial, which concluded when the trial judge declared a mistrial for reasons unrelated to the issues under review in this appeal.

II FACTS AND PROCEEDINGS [ 6 ] On November 27, 2008, Tidiani Keita was knifed to death in Marc Labrèche’s apartment. In addition to Mr. Labrèche, Mr. Ménard and another person, Robert Samson, were present when the fatal assault occurred. [ 7 ] Mr. Labrèche testified at Mr. Ménard’s preliminary inquiry. At the first trial, he was called as a Crown witness, and Mr. Ménard’s counsel cross-examined him. Mr. Labrèche passed away after the first trial, during which Mr. Samson did not testify. [ 8 ] In the context of Mr.

Ménard’s appeal to this Court from his initial conviction that the Court allowed for reasons unrelated to those examined in this appeal, Mr. Samson subscribed a sworn declaration that resulted in Mr. Ménard’s counsel cross-examining him. The apparent objective of the exercise was to have Mr. Samson admit he had accused Mr. Labrèche of having committed the murder, which Mr. Labrèche had refused to acknowledge. None of this, however, was produced in the record of Mr.

Ménard’s second trial. [ 9 ] Prior to the trial judge (Blanchard, J.) having declared a mistrial of the second trial, however, he admitted into evidence various statements Mr. Labrèche had made following Mr. Ménard’s arrest, as well Mr. Labrèche’s testimony from the first trial [ s. 715(1) Cr.C .]. [2] [ 10 ] In

summary, they were: • a police interrogation on November 27 and 28, 2008 while Mr. Labrèche was under arrest for the murder of Mr. Keita during which he refused to answer questions and insisted on the right to speak to his lawyer; • a K.G.B.-type video on November 28 during which Mr. Labrèche admitted being in his apartment when Mr. Ménard would have murdered Mr. Keita, the result of which was that his status in the eyes of the police was transformed from suspect to witness; • a two-minute audio recording on November 28 while Mr.

Labrèche was a passenger in an unmarked police vehicle following his K.G.B. statement wherein he specified that “Charles” (i.e. Mr. Ménard) had “frappé en débile” Mr. Keita, who as a result collapsed in the entrance to the apartment; • Mr. Labrèche’s testimony at Mr. Ménard’s preliminary inquiry during which he maintained, for the most part, his version of events as he had previously described them in his K.G.B. statement, despite some contradictions; • Mr. Labrèche’s testimony at Mr. Ménard’s first trial during which he similarly maintained his version of events despite some contradictions. [ 11 ] Mr.

Ménard was the crack supplier to Mr. Labrèche. The latter had been H.I.V. positive for several years and had been recently diagnosed with liver cancer. [ 12 ] On the afternoon of November 27, Mr. Ménard arrived at Mr. Labrèche’s apartment along with Robert Samson. Mr. Ménard asked Mr. Labrèche’s wife to leave the premises, which she did. Mr. Labrèche had persuaded Mr. Keita to come to the apartment under a false pretext. Shortly after his arrival, and in the presence of Mr. Samson, Mr. Ménard began his assault. He stabbed Mr.

Keita several times with a 12-inch blade Rambo-style knife that resulted in his death. [ 13 ] At the third trial that has given rise to this appeal, Mr. Ménard’s counsel aggressively cross-examined Mr. Samson as to the events he witnessed leading to Mr. Keita’s death, as well as his lengthy list of prior convictions. Mr. Samson acknowledged having lied to police authorities in 2008 when he accused Mr. Labrèche of having murdered Mr. Keita, because he thought Mr. Labrèche’s impending demise from AIDS meant he had nothing to lose. During his cross-examination, however, Mr.

Samson contended that he had testified in this manner against Mr. Labrèche at the request of Mr. Ménard. [3] [ 14 ] Mr. Ménard had not testified in his own defence at his first two trials. He did so, however, at the third trial that resulted in his conviction that is the subject of this appeal. [ 15 ] He testified that he considered Messrs. Labrèche, Samson and Keita as clients to whom he sold crack, without there being any type of personal relationship between them. He acknowledged having had a dispute with Mr. Keita in the past over the poor quality of

certain of his drug products, but he minimized the extent of the dispute and insisted that they had a good relationship. [ 16 ] According to Mr. Ménard, on the day of Mr. Keita’s death, he went to Mr. Labrèche’s apartment to collect a drug debt from him. Mr. Samson was already present. Mr. Labrèche’s wife then left the apartment at her husband’s request. With just the three of them in the apartment, Mr. Labrèche claimed that he had been defrauded of $963 in a drug transaction by someone named Gérald. Mr. Labrèche then went to fetch Mr.

Keita from his apartment in order to confirm that he had been defrauded, as he had alleged. [ 17 ] After having provided the requested confirmation, Mr. Keita sought to be compensated by having Mr. Labrèche furnish him with drugs. This request led to a struggle between the two of them. [ 18 ] Mr. Labrèche had a knife that he hid in his trousers in order to protect himself from Mr. Keita, who he thought would want to take drugs from him that were in the apartment in compensation of the supposed debt. A struggle then ensued between Mr. Keita and Mr.

Labrèche, during which the knife slipped out of his pants, whereupon Mr. Samson picked it up, all the while as he was continuing to consume crack. [ 19 ] According to Mr. Ménard, Mr. Samson then used the knife to repetitively stab Mr. Keita to death, while Mr. Labrèche participated by striking the victim with pliers. [4] Mr. Ménard testified that the day after the foregoing event, he told his drug supplier that he intended to go to the police and report that Mr. Samson was the perpetrator of Mr. Keita’s death. [5] [ 20 ] When Mr. Ménard’s counsel had cross-examined Mr.

Samson earlier, however, he chose not to confront him with the assertion that Mr. Samson had, in fact, inflicted the knife wounds that resulted in Mr. Keita’s death. That decision, the effect of which was to preclude Mr. Samson from responding to Mr. Ménard’s subsequent assertion that Mr. Samson was the person who murdered Mr. Keita, is at the heart of the appeal. [ 21 ] When Crown counsel cross-examined Mr. Ménard, he was shown a statement he made under oath in the context of an earlier appeal to this Court in which he acknowledged having made contradictory statements concerning his relationship with Mr. Samson.

He further stated that he had withheld information that Mr. Samson was the true perpetrator of the death of Mr. Keita as his counsel at the time had advised him to do so, and that he should never bring up the subject with anyone, including other detainees while he was in detention. [6] [ 22 ] Once Crown counsel had completed Mr.

Ménard’s cross-examination, defence counsel declared his proof closed. [ 23 ] During the discussions that ensued between the trial judge and both counsel prior to the delivery of the judge’s instructions, Crown counsel then raised the point that defence counsel had violated the principle in Browne v. Dunn , [7] an assertion that defence counsel candidly acknowledged. He contended, however, that the subject of the true identity of the individual who had murdered Mr. Keita had been covered in a general manner, a contention with which the trial judge did not agree. [ 24 ] Mr.

Ménard’s counsel did not then immediately request that Mr. Samson be recalled as a witness. Instead, he waited until two days later when the pleadings were about to begin. The trial judge refused the request. He considered that the decision of Mr. Ménard’s counsel not to cross-examine Mr. Samson as to whether the latter was Mr. Keita’s true assailant was a strategic one, and that in effect, Mr. Ménard would have to live with the consequences of that strategic decision. [ 25 ] This Court has recently had occasion to consider the application of Browne v. Dunn in Chandroo v.

R ., [8] a case in which it had been argued that the trial judge had improperly applied the principle that emerges from it. In Chandroo , the Crown invoked the principle in Browne v. Dunn on an objection during the testimony in chief of the accused that the trial judge maintained. On appeal from Chandroo’s conviction of fraud and false pretences, he argued that the trial judge erred in having maintained the Crown’s objection, and accordingly sought an order for a new trial. [ 26 ] Writing on behalf of the Court, Healy, J.A. described the contours of the application of Browne v.

Dunn as follows: [13] The principle in Browne v. Dunn is typically, but misleadingly, described as a rule. It is misleading because the principle is not absolute and, where a breach is found, invites the exercise of judicial discretion in its application. The application of the principle requires attention to two questions. The first is a question of law that is reviewed on a standard of correctness while the second, which concerns the exercise of judicial discretion, requires considerable deference on appellate review:

a) Is a party leading evidence in chief that would contradict or impeach the evidence of the opposing party’s witness on a significant matter without having first cross-examined the opponent’s witness on the same matter?

b) If yes, what can be done about it to ensure the fairness of the trial? [14] The first question requires the judge to identify whether the evidence being led is properly characterised as falling within the principle. This includes an assessment of the relative significance of the evidence being led in chief to the evidence previously led by the opposing party and not challenged in cross-examination. If that evidence is relatively insignificant, the judge may decide not to invoke the principle in Browne v.

Dunn . [15] A breach of that principle might occur either because counsel chose to do it deliberately or inadvertently through ignorance of its content and purpose. In either case, if the judge does invoke the principle, the second question affords various answers to address the breach. These lie within the discretion of the judge and should be the subject of representations by counsel. One possibility is to recall the witness for cross-examination (or further cross-examination). The judge has no obligation to suggest this remedy, or to recall the witness, although such a suggestion is commonly made.

A second is to admit some or all of the evidence tendered in breach and thereafter ensure that the trier of fact is specifically instructed that in assessing the whole of the evidence careful consideration should be given to the probative value of any testimony on both sides that is concerned with the breach. A third option is to enforce the principle in Browne v. Du nn by disallowing the party in breach to lead contradictory evidence. [Emphasis added]

[ 27 ] As we have seen, in the absence of an objection from Crown counsel, the trial judge did not exercise his discretion to draw the attention of Mr. Ménard’s counsel to the breach of the principle of Browne v. Dunn when it occurred during the cross-examination of Mr. Samson. Instead, here is how he treated the issue in his instructions to the jury: Browne contre Dunn, c'est une cause qui origine d'Angleterre, le Common Law et qui a été importée au Canada également. La règle stipule que lorsqu'une

partie a l'intention de présenter des éléments de preuve qui contredisent ou contestent la preuve d'un témoin d'un adversaire, il doit mettre cette preuve au témoin en contre-interrogatoire. Là, on parle ici du témoin Samson. C'est essentiellement une règle d'équité, un témoin ne doit pas être discrédité sans avoir eu l'occasion de commenter ou de contrer l'information discréditée. Il informe également l'autre

partie que la déposition de son témoin sera contestée et des corroborations supplémentaires pourraient être nécessaires. C'est ce qu'on appelle la règle de Browne contre Dunn. Vous vous rappelez dans le témoignage de l'accusé, il impute la responsabilité de la mort de monsieur Keita à monsieur Samson. Celui- ci n'a jamais été confronté avec cet élément. D'autant plus que monsieur Samson rappelle dans son ... c'est-à-dire l'accusé impute à monsieur Samson certains événements qui seraient survenus à l'intérieur de l'appartement 2 du 12200, Lachapelle à Cartierville.

Dans son témoignage, l'accusé vous dit que d'abord, monsieur Labrèche avait en possession du couteau, qu'il aurait échappé ce couteau, que monsieur Samson l'aurait repris, qu'il l'aurait mis sur le divan-lit sur lequel il se trouvait et que par la suite, s'en serait servi pour assener des coups à monsieur Keita. Monsieur Labrèche, son témoignage a été déposé en preuve sous l'article 715 que je vous ai lu lorsqu'il a témoigné et à l'enquête préliminaire et au niveau du procès.

Nulle part non plus dans le témoignage de ce qui avait été contre-interrogé, monsieur Labrèche, n'est-il mention qu'il ait eu, avant de rencontrer monsieur Keita ou avant d'aller le chercher chez lui, la possession d'un tel couteau. Non plus rapporte-t-il dans son témoignage qu'une autre personne aurait pu... c'est-à-dire que monsieur Samson se serait emparé du couteau alors qu'il l'aurait échappé par terre et aurait assené des coups à monsieur Keita.

C'est donc dire qu'à ce stade-ci, ce témoignage ... le fait qu'on ait pas contre-interrogé monsieur Samson sur ces éléments auxquels on l'accuse carrément d'avoir commis des actes et de le discréditer par ces actes, il n'a jamais eu l'occasion de répondre.

Donc, vous devez prendre en considération cet élément de fait que jamais il n'y a eu contre-interrogatoire de monsieur Samson, le confrontant avec la version que l'accusé a mentionnée . [Emphasis added] [ 28 ] As Healy, J.A. observed in Chandroo , [9] a trial judge’s determination whether a breach of the principle has occurred is a question of law subject to a standard of correctness on appellate review, but the nature of the remedy if there has been a breach is a matter of the exercise of a judge’s discretion, which is reviewable on a standard of reasonableness.

Thus, although a trial judge in the latter circumstance may authorize a witness to be recalled, there is no obligation to do so. [ 29 ] In this instance, the trial judge was evidently correct in concluding that when Mr. Ménard’s counsel cross-examined Mr. Samson, he had not been afforded the opportunity to respond to Mr. Ménard’s impending assertion that he was the person who had committed the offence with which Mr. Ménard had been charged. Indeed, it is hard to imagine a more serious accusation against Mr.

Samson than having caused the death of someone in the gruesome circumstances revealed by the evidence. [ 30 ] Moreover, the trial judge’s determination that the omission was the product of a strategic decision rather than inadvertence or ignorance on the part of Mr. Ménard’s counsel is validated by that counsel’s frank acknowledgment during his pleadings to the jury that he could have asked Mr. Samson whether he participated in the commission of the offence but chose not to do so. In such circumstances it would be inappropriate to reward a strategic decision that did not turn out as Mr.

Ménard’s counsel appears to have intended with an order for a new trial. [ 31 ] That being said, in the unlikely event that such a breach by defence counsel again occurs, it is preferable that Crown counsel object to the offending line of questioning as it occurs so as to allow the trial judge to exclude it immediately from the jury’s consideration (as was the case in Chandroo ) rather than having to deal with the issue in the instructions to the jury after the close of the evidence. III PROPOSED DISPOSITION [ 32 ] I would dismiss the appeal. ALLAN R. HILTON, J.A.