R. v. Jolivet (D.) (2000), 254 N.R. 1 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2000] N.R. TBEd. MY.006
Her Majesty the Queen (appellant) v. Daniel Jolivet (respondent)
(26646; 2000 SCC 29)
Indexed As: R. v. Jolivet (D.)
Supreme Court of Canada
L’Heureux-Dubé, Gonthier, McLachlin, Bastarache and Binnie, JJ.
May 18, 2000.
Summary:
A court composed of a judge and jury found Jolivet guilty of four counts of murder. Jolivet appealed.
The Quebec Court of Appeal, Robert, J.A., dissenting, in a decision reported 125 C.C.C.(3d) 210; 20 C.R.(5th) 326, allowed the appeal and ordered a new trial. The Crown appealed.
The Supreme Court of Canada allowed the appeal and restored the guilty verdicts.
Criminal Law – Topic 26
General principles – Prosecution of crime -Prosecutorial discretion – Abuse of process – [See
Criminal Law – Topic 5409
].
Criminal Law – Topic 4388
Procedure – Jury charge – Directions re addresses by counsel – Jolivet was charged with murder – In its opening statement, the Crown announced that it would call witness Bourgade to corroborate informer Riendeau’s testimony – In the end, the Crown did not call Bourgade, explaining that he was untruthful – In his jury charge, the trial judge did not specifically warn the jury to disregard Crown counsel’s opening statement regarding the nature of Bourgade’s evidence – However, the trial judge dealt at length with the dangers of relying on Riendeau’s uncorroborated testimony and included a Vetrovec warning – Jolivet was found guilty – The Supreme Court of Canada, in upholding the verdict, stated that the trial judge’s decision to deal with the problem raised by the Crown’s opening with a Vetrovec warning rather than by dealing specifically with the missing Bourgade was within the ambit of his discretion – See paragraphs 41 and 42.
Criminal Law – Topic 4394
Procedure – Jury charge – Directions re inferences from failure to call evidence – Jolivet was charged with murder – In its opening statement, the Crown announced that it would call witness Bourgade to corroborate informer Riendeau’s testimony – In the end, the Crown did not call Bourgade, explaining that he was untruthful – In his jury charge, the trial judge did not comment on Bourgade’s absence – Jolivet was found guilty – The Supreme Court of Canada, in upholding the verdict, stated that no “correction” was called for respecting the absence of jury directions regarding Bourgade’s absence – See paragraphs 37 to 40.
Criminal Law – Topic 4411.1
Procedure – Opening and closing addresses – Summing up – Counsel – Closing address – Reference to Crown’s failure to call witness – Jolivet was charged with murder – In its opening statement, the Crown announced that it would call witness Bourgade to corroborate informer Riendeau’s testimony – In the end, the Crown did not call Bourgade, explaining that he was untruthful – The trial judge did not allow defence counsel, in its closing address, to comment on Bourgade’s absence – Jolivet was found guilty – The Supreme Court of Canada found that the trial judge erred in not allowing defence counsel to comment on Bourgade’s absence but applied s. 686(1)(b)(iii) of the Criminal Code to uphold the verdict – The court stated that an adverse inference that Bourgade would have given evidence unfavourable to the Crown was not justified – However, an adverse inference of “unhelpfulness” would have been a fair result of the Crown’s failure to substantiate its assertion that there existed corroborative evidence and, therefore, the defence was entitled to comment on the Crown’s change of position – See paragraphs 22 to 36, 43.
Criminal Law – Topic 5045
Appeals – Indictable offences – Dismissal of appeal if no prejudice, substantial wrong or miscarriage results – What constitutes a substantial wrong or miscarriage of justice – Jolivet was charged with murder – In its opening statement, the Crown announced that it would call witness Bourgade to corroborate informer Riendeau’s testimony – In the end, the Crown did not call Bourgade, explaining that he was untruthful – The trial judge did not allow defence counsel, in its closing address, to comment on Bourgade’s absence – Jolivet was found guilty – The Supreme Court of Canada found that the trial judge erred in not allowing defence counsel to comment on Bourgade’s absence but applied s. 686(1)(b)(iii) of the Criminal Code to uphold the verdict – The court stated that the trial judge’s error did not result in a substantial wrong or miscarriage of justice in that the verdict would not have been different if the defence had commented on Bourgade’s absence – See paragraphs 43 to 54.
Criminal Law – Topic 5409
Evidence and witnesses – Witnesses – Duty of Crown to call witnesses – Jolivet was charged with murder – In its opening statement, the Crown announced that it would call witness Bourgade to corroborate informer Riendeau’s testimony – In the end, the Crown did not call Bourgade, explaining that he was untruthful – The trial judge did not allow defence counsel, in its closing address, to comment on Bourgade’s absence – Jolivet was found guilty – The Supreme Court of Canada found that the trial judge erred in not allowing defence counsel to comment on Bourgade’s absence but applied s. 686(1)(b)(iii) of the Criminal Code to uphold the verdict – The court stated that the Crown was under no obligation to call Bourgade and that its conduct did not amount to an abuse of process – See paragraphs 14 to 21.
Evidence – Topic 2401
Special modes of proof – Presumptions – Specific presumptions – Inference from failure to call or adduce available evidence – [See
Criminal Law – Topic 4411.1
].
Cases Noticed:
R. v. Mahoney, [1982] 1 S.C.R. 834; 41 N.R. 582, refd to. [para. 5].
R. v. Biniaris (J.) (2000), 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 5].
R. v. Lemay, [1952] 1 S.C.R. 232, refd to. [para. 14].
R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417; 59 C.R.(3d) 108; 17 B.C.L.R.(2d) 1; [1987] 6 W.W.R. 97; 43 D.L.R.(4th) 424, refd to. [para. 14].
R. v. Cook (D.W.), [1997] 1 S.C.R. 1113; 210 N.R. 197; 188 N.B.R.(2d) 161; 480 A.P.R. 161; 114 C.C.C.(3d) 481, consd. [para. 14].
R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; [1992] 1 W.W.R. 97; 83 Alta. L.R.(2d) 193; 8 C.R.(4th) 277; 68 C.C.C.(3d) 1, refd to. [para. 15].
R. v. J.V. (1994), 91 C.C.C.(3d) 284 (Que. C.A.), consd. [para. 16].
R. v. O’Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1; [1996] 2 W.W.R. 153, refd to. [para. 19].
Blatch v. Archer (1774), 1 Cowp. 63; 98 E.R. 969, consd. [para. 25].
R. v. Rooke (1988), 40 C.C.C.(3d) 484 (B.C.C.A.), consd. [para. 26].
Graves v. United States (1893), 150 U.S. 118, refd to. [para. 27].
Murray v. Saskatoon (City), [1952] 2 D.L.R. 499 (Sask. C.A.), refd to. [para. 28].
United States v. Hines (1972), 470 F.2d 225 (3rd Cir.), cert. denied (1973), 410 U.S. 968 (Sup. Ct.), refd to. [para. 28].
Duke Group Ltd. (Liquidation) v. Pilmer & Ors, [1998] A.S.O.U. 6529 (QL), refd to. [para. 28].
O’Donnell v. Reichard, [1975] V.R. 916 (S.C.), refd to. [para. 28].
R. v. Zehr (1980), 54 C.C.C.(2d) 65 (Ont. C.A.), consd. [para. 37].
R. v. Koffman and Hirschler (1985), 20 C.C.C.(3d) 232 (Ont. C.A.), refd to. [para. 38].
R. v. J.C.D. (1995), 80 O.A.C. 380; 98 C.C.C.(3d) 496 (C.A.), refd to. [para. 39].
R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; [1983] 1 W.W.R. 193; 27 C.R.(3d) 304; 136 D.L.R.(3d) 89; 67 C.C.C.(3d) 1, refd to. [para. 42].
R. v. Pétel (C.), [1994] 1 S.C.R. 3; 162 N.R. 137; 59 Q.A.C. 81; 87 C.C.C.(3d) 97; 26 C.R.(4th) 145, refd to. [para. 45].
R. v. McMaster (R.A.) et al., [1996] 1 S.C.R. 740; 194 N.R. 278; 181 A.R. 199; 116 W.C.C.(3d) 193, refd to. [para. 45].
R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165; 104 D.L.R.(4th) 180; 82 C.C.C.(3d) 310; 21 C.R.(4th) 277, refd to. [para. 48].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a)(ii), sect. 686(1)(b)(iii) [para. 7].
Authors and Works Noticed:
Mewett, Alan W., No Substantial Miscarriage of Justice, in Doob, Anthony N., and Greenspan, Edward L., eds., Perspectives in Criminal Law (1985), pp. 98 [para. 54]; 102 [para. 50].
Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 297, para. 6.321 [para. 28].
Wigmore, John Henry, Evidence in Trials at Common Law, vol. 2, revised by James H. Chadbourn (1979), para. 290 [paras. 26, 33].
Counsel:
Henri-Pierre Labrie and Jacques Pothier, for the appellant.
Alain Brassard, for the respondent.
Solicitors of Record:
Henri-Pierre Labrie, Longueuil, Quebec, for the appellant;
Alain Brassard, Salaberry-de-Valleyfield, Quebec, for the respondent.
This appeal was heard on February 19, 2000, by L’Heureux-Dubé, Gonthier, McLachlin, Bastarache and Binnie, JJ., of the Supreme Court of Canada.
The judgment of the Supreme Court was delivered in both official languages on May 18, 2000, by Binnie, J.
