R. v. Clarke (K.J.), 2013 MBCA 98

Citation: R. v. Clarke (K.J.), 2013 MBCA 98 Date: 20131029 Docket: AR 11-30-07710 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Freda M. Steel Mr. Justice Alan D. MacInnes BETWEEN : HER MAJESTY THE QUEEN ) G. G. Brodsky, Q.C. ) for the Appellant Respondent ) ) E. A. Thomson - and - ) for the Respondent ) KELLY JOHN CLARKE ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) October 29, 2013 CHARTIER C.J.M. (for the Court): [ 1 ] The accused appeals his two first degree murder convictions arising from the shooting and killing of Joël and Magdalena Labossière.

A few years earlier, Joël Labossière’s grandparents had been murdered in their home. It was an agreed fact that the grandparents’ estate, including ownership of the family farm, had been in dispute since their deaths. [ 2 ] The accused alleges three errors:

a) that the trial judge failed to grant a mistrial when a newspaper

article reported on the value of the grandparents’ estate;

b) that the trial judge failed to grant a mistrial after the Crown made irrelevant, inflammatory and prejudicial comments to the jury in its closing address; and

c) that the trial judge erred in admitting two out-of-court statements following a hearsay admissibility inquiry. [ 3 ] The decision to grant a mistrial is an exercise in judicial discretion and is only to be given in the clearest of cases where no other remedy is reasonably available to prevent a miscarriage of justice ( R. v. Burke , 2002 SCC 55 at para. 75 , [2002] 2 S.C.R. 857 ). Deference is owed to the trial judge’s decision to cure any potential prejudice by proper instructions to the jury ( R. v.

Grant (I.M.) , 2009 MBCA 9 at para. 69 , 236 Man.R. (2d) 54 ). [ 4 ] The mistrial application arising from the publication of the value of the estate was found to be “wholly without merit” by the trial judge. We agree. We have not been convinced that his decision, to remedy any potential prejudice through supplemental jury instructions, should attract our attention. There was no evidence that the value of the estate in any way motivated the killings. Moreover, the trial judge provided a mid-trial instruction immediately after the accused brought this matter to his attention.

He told the jury to avoid and ignore all media reports and specifically told them to disregard the newspaper report relating the value of the estate. He reminded the jury that they were required to consider only the evidence called at trial. Furthermore, in his final instructions he again told the jury to “disregard completely” any media information about the case. [ 5 ] On the mistrial application resulting from Crown counsel’s closing address, we are also of the view that there is no merit to this ground of appeal.

The impugned comments were that the killings had permanent effects on the victims’ young child and on the surviving members of the victims’ families. The trial judge found that, while the comments were not inflammatory, they were inappropriate. We agree that they were improper and should not have been said. To remedy the situation, the trial judge decided to add the following instruction to his charge to the jury:

[The Crown]’s reference to the two deceased’s child and unborn child in this case, although something known to you through the evidence you have heard that came before you, should play no

part in your deliberations. Recall what I said earlier about deciding this case without sympathy, prejudice or fear. [ 6 ] This focussed direction to disregard those comments was, in our view, able to cure any potential prejudice and his decision to handle the situation in the manner that he did, is deserving of our deference. [ 7 ] The final ground of appeal relates to the trial judge’s decision to admit two out-of-court statements pursuant to the principled approach to admitting hearsay evidence.

The statements had been provided by a tow truck driver who happened upon the accused’s getaway car just when it was being set aflame. The tow truck driver had died before the trial. While the accused does not dispute the necessity requirement, he contends that the statements were insufficiently reliable to overcome the initial hurdle of threshold reliability. [ 8 ] In the trial judge’s considered and comprehensive reasons, he correctly stated the applicable legal principles and carefully considered all of the relevant evidence. He dealt with all of the arguments now raised by the accused and rejected them.

Critical to his decision was that key information in the tow truck driver’s statements was corroborated by other evidence and that there was no evidence to suggest that the driver had motive to fabricate. We do not accede to this ground of appeal. [ 9 ] The accused also argues at this hearing that the trial judge erred by relying on evidence that did not yet form part of the trial record, to found his decision on threshold reliability. A careful reading of his reasons, which were given after the initial voir dire , shows that this is not the case.

While he summarized the evidence that was later adduced at trial, the trial judge made clear that his decision on threshold reliability, was based only on the evidence that had been put before him on the voir dire and the anticipated evidence of certain witnesses, in order to provide him with the appropriate context to determine the relevancy of the tow truck driver’s statements. In the end, we are all of the view that the accused has not demonstrated any error in principle by the trial judge and that his findings are reasonable and supported by the evidence. [ 10 ] For these reasons, we dismiss the appeal.

C.J.M. J.A. J.A.