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PROCEDURE - Trial judge's duties - Charge or directions - Defences

Tuesday, July 16, 2019 @ 8:42 AM  


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Appeal by the accused, Gallant, from a conviction for first degree murder. In 2009, the victim was shot and killed upon opening his apartment door to the assailant. In 2010, the accused's former girlfriend told police of the accused's involvement in the shooting. The girlfriend had a substantial record related to drug trafficking. She received immunity in exchange for her testimony. The girlfriend testified that the shooting was retribution for the victim's theft of drugs from an individual who trafficked drugs for the accused. That individual gave testimony corroborating the motive. The girlfriend testified that she was present at the shooting, and that they planned to merely injure the victim by shooting him in the leg. After the shooting, they fled to another drug dealer's apartment and recounted the incident. That drug dealer testified that the accused and his girlfriend told him of the shooting. An eyewitness testified that he heard the shooting and saw somebody exit the apartment and throw something inside an SUV. Police found the SUV, linked it to the accused, and recovered a shotgun from the vehicle. At the resulting trial, the accused advanced a third-party suspect defence. The jury returned a conviction. The accused appealed based on multiple errors in the jury instructions regarding available inferences, Vetrovec witnesses, and the refusal to leave the third-party suspect defence with the jury. The accused further submitted that the verdict was unreasonable.

HELD: Appeal dismissed. The trial judge was not required to give a specific instruction on whether the Vetrovec witnesses' evidence was tainted by police revealing the other evidence against the accused. To the degree that the police provided such evidence prior to taking witness statements, it was not sufficient in detail or scope to support a finding that the witnesses' evidence lost independence. Although the trial judge's circumstantial evidence instruction violated the principle that inferences consistent with innocence do not have to be established or drawn from proven facts, no substantial wrong or miscarriage of justice resulted based on a reading of the instruction as a whole. There was no air of reality to the third-party suspect theory, and the trial judge was correct in declining to give a discrete instruction on it. The verdict of first degree murder was not unreasonable, as the evidence supported the inference that the point-blank shooting of the victim by the accused was intentional, planned, and deliberate.

R. v. Gallant, [2019] B.C.J. No. 995, British Columbia Court of Appeal, E.A. Bennett and J.E.D. Savage and Butler JJ.A., June 5, 2019. Digest No. TLD-July152019004