Levesque, Rancourt, Cotnam

Application for leave to appeal from a conviction. Granted. Appeal from a conviction. Dismissed.

The appellant claims that he went to the victim’s home in 2017 to obtain payment for painting work performed in 2015. The victim was fatally struck with an object. The appellant’s DNA was found on the breasts of the victim, whose body was half naked when discovered by the police. At the jury trial, the respondent argued that the murder should be considered first degree murder because the death was caused while the appellant was sexually assaulting the victim. On this point, the evidence of sexual activity was almost entirely circumstantial. The defence essentially submitted that the respondent did not establish beyond a reasonable doubt the absence of the victim’s consent to the sexual activity, which should have justified a verdict of second degree murder only.

The appellant, who was convicted of first degree murder, argues that the judge erred in reversing the burden of proof by presenting the jury with a decision tree and inviting it to ask, at the fourth question, whether the victim had consented to the sexual activity. The appellant also submits that the judge erred in summarizing the evidence improperly and unfairly when she instructed the jurors on the evidence of the essential elements of sexual assault.

First ground of appeal: When she instructed the jurors, the judge first addressed the offence of murder and its constituent elements. She repeated that it was up to the respondent to prove each one of them beyond a reasonable doubt. The judge then addressed the elements of the offence of sexual assault, including the victim’s consent, and reiterated the respondent’s burden of proof. The judge’s instructions, viewed through a functional lens and as a whole, were sufficient and allowed the jurors to properly decide the issues in dispute. In view of the oral instructions that were given, the fourth question of the decision tree concerning sexual assault, considered in light of the judge’s instructions as a whole, did not reverse the burden of proof.

Second ground: As for the part of the judge’s instructions concerning the sexual nature of the contact, which required the judge to make a correction, the appellant exaggerated the nature and scope of this incident by isolating it from its factual context, the evidence as a whole, and the judge’s instructions as a whole, which must be viewed in a comprehensive and functional manner. The judge properly fulfilled her role by giving appropriate instructions that clarified and simplified the jurors’ task. They were objective instructions that ensured the appellant was given a fair trial, because the judge addressed all the issues genuinely in dispute. They were “accurate and sufficient” instructions (R. v. Abdullahi (S.C. Can., 2023-07-14), 2023 SCC 19, SOQUIJ AZ-51953761, 2023EXP-1713).

This second ground of appeal must therefore also fail because the appellant is wrong to argue that the judge’s instructions were unfair. The incidents to which he refers, even assessed together, do not establish unfair treatment that could have caused him any prejudice. The verdict of first degree murder must therefore be maintained.

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