This week’s top three summaries: R v Shire, 2023 ONSC 762: Corbett app #violence, R v Frank, 2023 BCSC 202: #obstruction, and R v Perignon, 2023 BCSC 147: #automatism via medications.
This week's top case deals with admissibility of criminal records of an accused. For great general reference on the law of evidence, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
R v Shire, 2023 ONSC 762
[February 1, 2023] Corbett Application: Exclusion of Offences of Violence for Similarity [Justice Boswell]
AUTHOR’S NOTE: Special rules apply to the admissibility of the criminal record of the accused for cross-examination by the Crown. This case provides a textbook application of the principles to exclude similar offences of violence in a murder case. The principles recognize that propensity reasoning is sometimes too powerful for a jury to ignore, even with appropriate judicial instructions.
RULING ON MR. SHIRE’S CORBETT APPLICATION
[2] Three men entered the apartment at roughly 7:00 a.m. It is agreed that those three men were Abad Shire, Cory Greavette and Tyler Wren. Within minutes, Mr. Babineau lay dead or dying from more than 60 stab wounds.
[3] ...Mr. Shire proceeded to trial on a charge of second degree murder. The Crown asserts that he, or he and Mr. Greavette, inflicted the stab wounds that killed Mr. Babineau.
[5] By way of brief oral reasons delivered on January 18, 2023, I granted Mr. Shire’s application and I ordered that his criminal record be redacted as requested by the defence. I undertook to provide written reasons in support of my ruling. These are the reasons.
The Governing Principles
[6] ...Where an accused has a criminal record, he or she may be cross- examined on it: Canada Evidence Act, R.S.C. 1985, c. C-5, as amended, s. 12.
[10] To be clear, the direction from Corbett is that judges should start from the premise that juries should receive all relevant information, accompanied where necessary by an appropriate caution or limiting instruction. Orders restricting the jury’s access to information about the criminal record of an accused should be made only where there are clear grounds to do so: R. v. Mayers, 2014 ONCA 474, para. 5. That is not to say that the court’s discretion to restrict or limit cross-examination on the criminal record of an accused person should only be exercised in exceptional circumstances. The rule is that evidence of prior convictions is admissible in cross- examination of an accused person, subject to a discretion to exclude such evidence where its probative value is exceeded by its prejudicial effect: R. v. Charland, [1996] A.J. No. 819 (Alta. C.A.), at para. 19.
[11] While Justice LaForest dissented in the result in Corbett, he did not part ways with the majority on the governing principles to be applied in this type of application. He provided a number of factors that a court ought to consider in exercising its discretion. Those factors were set out at paras. 152-158 of the decision and include:
(a) The nature of the previous conviction(s). Keeping in mind that the limited use of the prior record relates to the assessment of the witness’s credibility, a conviction for perjury or other crimes of dishonesty are far more telling about a person’s honesty and integrity than is a conviction for assault;
(b) The similarity between the prior conviction and the index offence, having regard to the dangers of propensity reasoning;
(c) The proximity of the prior offence(s); and,
(d) Fairness to both the Crown and the accused. In this sense, where an accused attacks the credibility of Crown witnesses, he or she should not be insulated from his or her own criminal record, lest a distorted view be left with the jury.
The Anticipated Defence Evidence
The Convictions in Issue
[14] Mr. Shire seeks to limit the Crown’s cross-examination by redacting some eleven offences from the record that will go before the jury. They are the convictions for forcible entry, forcible confinement, robbery (x2), assault, assault with a weapon (x2) and assault causing bodily harm (x3).
[15] The Crown concedes a number of the redactions sought. In particular: (1) Youth Court convictions for forcible confinement, being unlawfully in a dwelling house and assault with a weapon, all dating back to December 13, 2011; (2) a Youth Court conviction for robbery entered July 12, 2012; and (3) a November 12, 2013 robbery conviction.
Discussion
In my view, the best way to balance and alleviate these risks is to give the jury all the information, but at the same time give a clear direction as to the limited use they are to make of such information. Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. It is preferable to trust the good sense of the jury and to give the jury all relevant information, so long as it is accompanied by a clear instruction in law from the trial judge regarding the extent of its probative value.
[20] I will therefore begin with an examination of the probative value of Mr. Shire’s criminal antecedents.
Probity
[21] ...To be fair, the attack on Ms. Rothon’s evidence was largely grounded in concerns about the reliability of her evidence. She is a recovering opioid addict, was high on fentanyl at the time of the incident, and suffered a stroke at some point prior to trial that has impaired both her short and long-term memory.
[23] As I noted, at the time this application was argued, Mr. Shire’s testimony was expected to directly contradict Ms. Rothon’s account of the events in issue. His credibility and reliability would be squarely in issue in the trial.
[24] This is a murder trial. The stakes are high. The Crown understandably wants to leave no stone unturned in challenging the credibility and reliability of Mr. Shire’s account of the events in issue. The Crown will be asking the jury to completely reject his account.
[25] The content of Mr. Shire’s criminal record is relevant to the jury’s assessment of his credibility. It is presumptively fair game.....
[27] Mr. Shire has 36 prior convictions. If I redact all of the convictions for violent offences as requested by his counsel, there will remain 25 convictions on his record. Those include convictions for theft, obstruction of justice and sixteen breaches of probation orders and recognizances. In other words, even if the six violent convictions in issue are redacted, the remaining convictions will still leave a strong impression of an individual who has a demonstrated disregard for court orders and the rule of law in general. They will make a strong statement about his credibility.
[28] Undoubtedly, the addition of a further six offences would leave an even stronger impression about Mr. Shire’s lack of respect for law and order. But in my view, they will not substantially add to the equation....
...But in this case, even if the redactions are made as requested, the Crown will still have a good deal to work with in terms of Mr. Shire’s history of criminality.
[29] ...In the result, the probative value of the impugned convictions is modest.
Prejudice
[31] In the context of Mr. Shire’s defence, in which he will point to Mr. Greveatte as the lone assailant, evidence that Mr. Shire had a propensity for violence is hugely prejudicial, particularly in light of the fact that the jury will have no evidence of Mr. Greavette’s propensity, if any, for violence.
[36] ...Courts can and do proceed on the assumption that juries accept and follow the instructions given to them by trial judges. See R. v. Suzack, [2000] O.J. No. 100, at para. 128. In the particular circumstances of this case, however, it would be difficult for the jury to disabuse themselves of the knowledge that Mr. Shire has a history of serious violent criminality when they are assessing his evidence that it was Mr. Greavette alone who stabbed Mr. Babineau.
The Balance
[39] The defence application was granted for the foregoing reasons. Mr. Shire’s criminal record was redacted as requested.
R v Frank, 2023 BCSC 202
[February 10, 2023] Obstruction: Criminal act must be beyond de minimis [Justice Schultes]
AUTHOR’S NOTE: This case demonstrates through its facts how an act that is very likely meant to obstruct a peace officer can nevertheless fail to cross the threshold of a criminal act. Here, the mother of someone fleeing the police ran on an intercept course towards a pursuing officer. However, the officer did not slow down and in fact was not slowed in his pursuit despite noticing her attempt to interfere. The result was that on summary conviction appeal, the court found that the trial judge failed to address whether the accused's acts interfered with the police officers ability to act in the execution of his duty. On this basis, the court ordered a new trial.
Introduction
Relevant Evidence at Trial
[4] The occupants did not allow the officers to enter the house to look for him, so the officers formed a perimeter around it to prevent him from escaping, and made arrangements to obtain a warrant authorizing them to enter it and carry out the arrest.
[5] After the warrant had been obtained, but before the officers entered the house, Riley fled out of the rear of the house.
[7] Ms. Frank and her co-accused Ms. Alphonse, who was not dealt with in this trial, were outside of the house in the same area. A few minutes earlier, Ms. Frank had engaged in a verbal confrontation with the officers about their authority to be on her property (although she ended up giving the officers a key to the house so that they would not damage the door when they entered).
[8] Cst. Duquette said that as he was running after Riley, he saw Ms. Frank in his peripheral vision, running towards him. He described her as being on an “intercept course” with him, and that she was running at her “best possible speed”. In cross- examination he explained that this meant that Ms. Frank (and Ms. Alphonse) were proceeding at “[a]s best of a run as they could manage at the time, ...considering their physical condition, level of intoxication.” In his view running involves the “moving of the legs as fast as your body will carry you”. Although he regretted his choice of words, he agreed that in his police report he had described Ms. Frank’s movement as “drunken waddling”. In explaining his use of the term “waddling”, he drew an analogy to speed walkers, who have “a bit of a waddle when they walk...as in the movement of the hips.”
[9] Ms. Frank managed to “get to” him as he was running through the gap in the fence, he said. She was in motion until he passed her. He was later told by another officer that he put his arm out to stop her, but he did not remember having done that – he “just kept running after Riley.”
[10] He said that he did not recall anything that had obstructed him in that interaction with Ms. Frank. However, he qualified this by explaining that it was his first foot pursuit of this kind, and that as a result “tunnel vision kicked in”. He was so focused on not allowing her son to escape that “a lot of things tuned out, basically”.
Q: And in fact on this particular day, although you have no recollection of her making any contact with you or you making any contact with her, she never impeded your movement towards [her son], to catching him...
A: Correct [Emphasis added]
[14] He said that at that point that she “reached out” with both arms to Cst. Duquette, who “put his arm out and more move[d] her aside and continued pursuing after [her son]” Cst. Martin described her motion “more of a lunge and a stationary position towards [Cst. Duquette]” (by which he may have meant “from” a stationary position). Her arms had previously been at her side, at shoulder-width, and her movement was to bring them up to chest level. Cst. Duquette’s arm “put her off balance”, he added.
Reasons for Judgment
[20]...I find that there is external consistency between all three that place Ms. Frank and the co-accused in the middle of the fray one way or another.
[23] I find that, although the officers had different versions of the method of obstruction, their evidence was internally and externally consistent with the elements of the offence. And again, I will repeat that she knew that Constable Duquette was a police officer; knew his duty or reason for being there; and she “foresaw with substantial certainty that doing the actions that she did would obstruct Constable Duquette.”[24] On the evidence as a whole, I find her conduct was not accidental, reckless or careless, but purposeful and wilful. It is not like the example set out in [R. v.] Alsager, 2016 SKCA 91, where a parked vehicle in a narrow lane blocks a pursuit of police officers in pursuit of a subject. In my view, on the uncontroverted evidence, Ms. Frank went towards the action.
[25] I find that moving towards Constable Duquette while he was in pursuit of her son created an intentional barrier to Constable Duquette and, accordingly, I find Ms. Frank guilty of obstructing a police officer.
Discussion
[42] The problem with the present decision however, is not with the degree of interference that was found. My conclusion is that the trial judge erred in her analysis of whether the actus reus had been committed, by failing to address and reconcile key evidence on the essential element of whether Cst. Duquette’s ability to act in the execution of his duty in arresting Riley was affected at all by Ms. Frank’s action.
[43] Her assertion that “all versions are compatible when observed at different viewpoints over time period of approximately 10 to 20 seconds” failed to take into account Cst. Duquette’s own evidence that Ms. Frank never impeded his movement towards Riley. It was essential, if the trial judge was to prefer Cst. Martin and Cst. Hogue-Denomnee’s descriptions of Cst. Duquette having to avoid Ms. Frank over Cst. Duquette’s own version of events, to explain how she was able to do so.
[44] ...she found that what he and the officers described were all reconcilable as different perspectives on the same events over the period of time in which the interaction with Ms. Frank occurred, without addressing how Cst. Duquette’s own perspective might have affected that finding. This was an error.
[46] I am not persuaded that the trial judge erred in identifying the presence of the required mens rea....
...This was the exact language used by the Saskatchewan Court of Appeal in the Alsager decision that she referred to:
(c) the accused either had an intention to obstruct the peace officer or foresaw with certainty or substantial certainty that doing the act in question would obstruct the peace officer.
[Emphasis added]
Conclusion
[53] ...I will order a new trial.
R v Perignon, 2023 BCSC 147
[January 27, 2023] Automatism: Non-mental disorder, Prescribed medications and alcohol [Justice Milman]
AUTHOR’S NOTE: This case follows in the the footsteps of R v Brown, 2022 SCC 18, to illustrate how a moderate amount of alcohol coupled with a volatile cocktail of prescription medication can lead to a successful automatism defence. Here, the defendant struggled with a combination of pain medication and sleep medication over an extended period of time. Some of those drugs appear, in the expert opinions, to have been over-prescribed. The key to the outcome was the court's inability to locate a motive for the husband attacking his wife and his lack of history of violence. However, there are also elements in this case that the Crown will often cling to in an attempt to suggest lucidity (eg. the accused's post offence statements about attempting to hurt his wife, not kill her; saying on the 911 call that he did something really stupid, and saying to 911 dispatch that inflicted a 'not killing wound'). All these factors did not convince the trial judge that the accused was in fact in control of his faculties at the time of the offence.
I. Introduction
[3] ...Because the law assumes that, in general, people act voluntarily and are responsible for their actions, Mr. Perignon bears a heavy burden to demonstrate that the ordinary presumption should not apply here. Nevertheless, he says that he has met that burden.
II. The Facts
[8] He was treated initially with physiotherapy and simulated cell regrowth. He soon became dependent on escalating dosages of opioids to control his pain. These issues exacerbated a problem he had been having for much of his adult life with insomnia. Since the 1980s, when he was in his late teens, he had been taking bromazepam, a drug in the benzodiazepine family, to help him sleep.
[23] After the movie ended at around 10 pm, Ms. Perignon sent Olivia to bed and went to the front door to let the dog out before retiring to bed herself. As she was doing so, she heard Mr. Perignon’s footsteps on the stairs behind her. She never saw him, nor did she hear him say anything. She felt a “thump” in her back and realised she had been stabbed. She reached behind her back for the knife and pulled it out herself, cutting her thumb badly in the process. She recalls screaming and having trouble breathing as Kaitlin and Mr. Dunsford came to her aid a few minutes later.
[24] Mr. Perignon’s testified that his memory of the events that occurred on that day blended into one another. He recalls having dinner with the family and retiring to his home-office to watch a movie. As was his routine at the time, he took trazodone, an antidepressant, and his usual mix of opioids three times that day. Approximately ten minutes before retiring to bed, he also took the 3.5 tablets of zopiclone that I have already mentioned. After that, he remembers taking off his shoes and socks before getting into bed. He remembers feeling pain in his back.
[25] His next memory is standing over his wife while she was lying on the floor in front of him, screaming in pain. He remembers seeing the kitchen knife on the floor near her. He was in shock. He did not know how he had got to the front door on the ground floor – his bedroom was on the second floor. He recalls running back up the stairs to his bedroom to retrieve his cell phone in order to call 911. He locked himself in the bedroom because he feared he might pose a danger to the others present in the house.
[29] By the end of following month, Mr. Perignon had stopped taking opioids altogether. Soon after that, he resumed taking bromazepam and has had no difficulty sleeping since then.
III. The Psychiatric Evidence
... [Mr. Perignon] was certain to be in a state of impaired mental awareness, and more likely, he was [in] an altered sleep state. More likely than not, he was in a state of complex sleep related behaviours. As such, Mr. Perignon would not be aware of his actions nor be able to form basic intent.
[34] The Crown adduced no expert evidence.
IV. The Legal Framework
[35] There is also no dispute between the parties about the applicable law. Although not contentious, the legal framework is complicated by the fact that, after the evidence was concluded, but before I received closing arguments, the Supreme Court of Canada struck down former s. 33.1 of the Criminal Code as unconstitutional: see R. v. Brown, 2022 SCC 18. That provision had operated, in cases involving crimes of violence of the kind in issue here, to render the defence of automatism unavailable in certain circumstances. Since then, Parliament has enacted a replacement provision, but the parties agree that it does not apply retroactively to this case.
[47] Automatism is reflected in involuntary movements that may be associated with heart attacks, seizures or “external” shock, or conditions such as sleepwalking or delirium, where the body moves but there is no link between mind and body (Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386 (H.L.), at p. 409; Rabey, at p. 523). Physical voluntariness is a principle of fundamental justice and a requirement of all true criminal offences, central to the criminal law’s desire to avoid convicting the morally innocent (Daviault, at p. 74; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at paras. 46-47; R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, at para. 45). Absent a willed movement of the body, the Crown cannot prove the actus reus beyond a reasonable doubt (R. v. Théroux, [1993] 2 S.C.R. 5, at pp. 17-18). This is distinguished from moral involuntariness, which describes scenarios where the accused retains conscious control over their body but has no realistic choice but to commit a guilty act (Ruzic, at para. 44).
[48] In addition, an automaton cannot form the mens rea, or guilty mind, if their actions are involuntary. Where an accused has no conscious awareness of their movements, they necessarily cannot intend their involuntary acts. Imposing criminal liability in the absence of proof of fault also offends the principles of fundamental justice (Motor Vehicle Reference, at pp. 513-15).
a) assert that his act was involuntary; and
b) adduce logically probative evidence from a qualified expert supporting the claim, upon which a properly instructed jury could find that the impugned act was involuntary.
a) the severity of the triggering stimulus;
b) corroborating evidence of bystanders;
c) corroboratingmedicalhistoryofautomatistic-likedissociativestates;
d) whether there is evidence of a motive for the crime; and
e) whether the alleged trigger of the automatism is also the victim of the automatistic violence.
[41] Before addressing that question, a second preliminary issue arises as to whether it is “mental disorder automatism” or “non-mental disorder automatism” that should be left with the trier of fact in the circumstances of this case. That issue turns on whether the condition asserted by Mr. Perignon to explain his conduct can be identified as a mental disorder, in which case different consequences will follow: Stone at paras. 193-222. There are two principal considerations that bear on the analysis in that regard:
a) the “internal-cause” factor (that is, whether an otherwise normal person might have entered into an automatonic state in similar circumstances); and
b) the “continuing danger” factor, which focuses on the risk to public safety.
V. Analysis
[45] ...Crown counsel argues that the preponderance of the Stone factors tilts in favour of conviction. In urging that conclusion, Crown counsel emphasized the following factors:
a) Mr. Perignon was not a credible witness, inasmuch as his capacity to remember important details was suspiciously selective; and
b) assuming Mr. Perignon consumed the zopiclone tablets at 10 pm, as he testified, there would not have been enough time between then and the stabbing for the effects of the zopiclone to be felt, given that the stabbing had already occurred by 10:09, when he made the 911 call.
[47] Here, the lack of both a motive and an obvious trigger figures prominently in the analysis. I say this because Mr. Perignon’s act is very difficult to explain in any way other than as the defence urges. Not only was there no argument between Mr. and Ms. Perignon in the leadup to the incident, they had their children staying with them in the house that weekend. I am left with no explanation as to why
Mr. Perignon, if he was indeed acting intentionally, would have chosen that moment in particular to attack his wife. Conversely, the fact that he immediately called 911 and was evidently anxious for help to arrive quickly, tends to negate the suggestion that he consciously intended to cause her harm at any stage.
[51] Another line of evidence that is argued by the Crown to undermine the defence theory arises from some of the remarks that Mr. Perignon is recorded to have made that night, suggesting that, contrary to his testimony at trial, he had in fact been awake throughout. Dr. Kolchak himself was troubled by Mr. Perignon’s statement to the police, when told that he was being held for attempted murder, that he did not intend to murder his wife but only to hurt her. He told the 911 dispatcher that what he had inflicted on his wife was “not a killing wound.” Towards the end of the 911 call, Mr. Perignon can be heard, as he was being taken into custody, stating to those present that he “just did something really stupid.” How could he have said those things, Crown counsel argues, had he not been fully aware at the time of his actions and intentions.
[53] As Crown counsel argues, the defence theory is also undermined to some extent by the apparent timing of Mr. Perignon’s consumption of zopiclone in relation to the stabbing. The psychiatric evidence was that zopiclone would have to have been the essential ingredient in bringing about a somnambulistic state, with the opioids and alcohol contributing but not capable of doing so on their own.
Dr. Kolchak noted in his report that it was surprising that the medications, if indeed they had had that effect, would have worn off sufficiently to render Mr. Perignon as alert as he appeared to be when he was taken into custody. However, both psychiatrists testified in cross-examination that it was possible, if unlikely, for the zopiclone to have taken effect in the few minutes available, assuming the timing was indeed as reconstructed by Crown counsel.
