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PROCEDURE - Trial judge’s duties - Charge or directions - Evidence of witnesses

Tuesday, February 09, 2021 @ 6:23 AM  


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Appeal by the accused, Lavallee, from a conviction for second degree murder. The Crown alleged that the accused intended to follow through with a prior threat to kill Butler arising from jealousy of Butler’s association with other men. The Crown alleged the accused used a sawed-off shotgun to shoot at Butler. However, the shot struck and killed Butler’s friend, Cooney, who was walking Butler’s dog and was several steps behind Butler when the shot was fired. The Crown relied upon a witness, a friend of Butler, who was in the area and testified that an individual standing 20 feet away stated, “I shot the wrong one.” The witness’s identification of the accused as the utterer of the statement was equivocal and the Crown took the position that the statement had no value. However, the defence in final argument sought to rely on the witness’s testimony to raise doubt regarding whether the shooting was conducted by an unknown third-party perpetrator. The trial judge was satisfied beyond a reasonable doubt that the accused was the shooter quite apart from the utterance and was similarly satisfied of the accused’s requisite intent for second degree murder on the other evidence, including eyewitness testimony from Butler placing the accused at the scene. A subsequent request by the defence for a mistrial based on surprise regarding the Crown’s position surrounding the admissibility of the utterance was rejected. The accused appealed.

HELD: Appeal dismissed. No trial unfairness was established. The trial judge was entitled to accept the evidence regarding the utterance and subsequently entertain submissions on its use and weight. A reasonable observer looking at the entire record would conclude the accused had a fair opportunity to cross-examine witnesses, to advance all available arguments and to present a defence. Any imprecision in the trial judge’s language about the reasoning path for attaching no weight to the evidence regarding the utterance was a function of how counsel argued the case and did not render the reasons for conviction unintelligible, indefensible, or unfair. There was a substantial body of evidence concerning animus, motive, shot residue and the accused’s culpable post-offence conduct. That evidence was irreconcilable with the accused having nothing to do with the shooting. No error arose from admitting a reference in the accused’s statement to police about having charges brought down to manslaughter as an admission against interest. The verdict was reasonable and supported by the evidence.

R. v. Lavallee, [2020] A.J. No. 1410, Alberta Court of Appeal, J. Watson, F.L. Schutz and M.G. Crighton JJ.A., December 16, 2020. Digest No. TLD-February82021004