Doyon, Ruel, Moore

Appeal from convictions. Dismissed. Appeal against ineligible parole period. Allowed.

After a jury trial, the appellant was convicted on four counts in connection with one first degree murder (count 4), one second degree murder (count 3), and two attempted murders (counts 1 and 2). The offences were committed over a short period, between September and October 2012. The appellant participated in the offences by aiding or abetting Wolfson to commit them or by counselling him to do so. The indictment included a fifth count concerning another attempted murder, but the trial judge ordered its severance. At sentencing, she ordered that the appellant’s minimum periods of imprisonment before parole eligibility for the two murders be served consecutively.

The appeal concerning the parole ineligibility period must be allowed in light of R. v. Bissonnette (S.C. Can., 2022-05-27), 2022 SCC 23, SOQUIJ AZ-51855328, 2022EXP-1444. The two minimum periods before parole eligibility for the murder charges must be served concurrently.

The concept of charge “in respect of the same transaction” should not be interpreted narrowly and is not limited to a single event or act, but may refer to a series of events or acts that have some factual, temporal, or legal connection. In this case, the judge followed the principles set out in R. v. Last (S.C Can., 2009-10-15), 2009 SCC 45, SOQUIJ AZ-50579351, J.E. 2009-1893, [2009] 3 S.C.R. 146, and did not err in law. Several factors weighed in favour of a joint trial for the four counts, in particular the many factual and legal aspects connecting the counts. The joint trial established that there was a system, namely that Wolfson committed the criminal offences for the appellant’s benefit. The cumulative effect of the evidence was essential to establish the credibility of the Crown’s witnesses. Counts 1 and 3 arose from the same transaction, and the judge was correct to dismiss the application for the severance of count 1. In addition, she did not err in dismissing the appellant’s subsequent application for the severance of counts 1 and 4.

The judge allowed the prosecution to establish certain events related to count 5 as evidence of relevant discreditable conduct. The severance of this count did not mean that the underlying facts could not be admitted as discreditable conduct. It was relevant evidence in the circumstances. The appellant’s contention that the prosecution did not cross-examine him on a statement he made is not accepted. The rule in Browne v. Dunn, 1893 CanLII 65, 6 R. 67 did not apply. The statement in question had been adduced into evidence before the defence was made and accordingly, if the appellant wanted to provide an explanation, he could have done so by testifying.

As for the instructions to the jury, the judge did not make a Miller error (R. v. Miller, 1991 CanLII 2704, 5 O.R. (3d) 678, 68 C.C.C. (3d) 517, 9 C.R. (4th) 347, 50 O.A.C. 282). The instruction raised by the appellant was not given in connection with the possibility of his acquittal, but rather in connection with a conviction. The same is true for the instruction concerning the concept of “reasonable doubt” with respect to the explanations and examples provided by the judge on the difference between speculation and inferences as well as on propensity evidence. The judge summarized the parties’ theories in an acceptable manner and did not unduly insist on that of the prosecution. Although she erred in her summary of the facts adduced into evidence, none of the errors was sufficiently significant to have an impact on the jury’s reasoning. Last, it was open to the judge to allow the appellant’s cross-examination using evidence previously found inadmissible for the purposes of assessing his credibility.

Text of the decision: http://citoyens.soquij.qc.ca