R. v. White (R.G.) (1998), 112 O.A.C. 1 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [1998] O.A.C. TBEd. JL.003
Richard Gerry White (appellant) v. Her Majesty The Queen (respondent)
Yves Rhéal Côté (appellant) v. Her Majesty The Queen (respondent)
(25775; 25854)
Indexed As: R. v. White (R.G.) and Côté (Y.)
Supreme Court of Canada
L’Heureux-Dubé, Gonthier, Cory, McLachlin, Major, Bastarache and Binnie, JJ.
July 9, 1998.
Summary:
The accused were convicted of first degree murder following an “execution-style killing”. The accused appealed their convictions on numerous grounds. The accused’s principal argument was that the trial judge failed to instruct the jury in accordance with R. v. Court and Monaghan (Ont. C.A.) respecting evidence of consciousness of guilt and reasonable doubt.
The Ontario Court of Appeal, in a decision reported 91 O.A.C. 321, dismissed the appeals. The court overruled R. v. Court and Monaghan, holding that it was wrongly decided. The trial judge therefore did not err in failing to instruct in accordance with Court and Monaghan. The court also rejected all other grounds of appeal. The accused appealed again, arguing that the jury was not properly instructed regarding the inferences to be drawn from the conduct of the accused after the murder (i.e., fleeing the jurisdiction, running from police to avoid arrest and attempting to dispose of one of the murder weapons).
The Supreme Court of Canada dismissed the appeals.
Criminal Law – Topic 1270
Murder – First degree – Meaning of “planned” and “deliberate” – Two accused were convicted of first degree murder – The accused appealed, arguing that the trial judge, although he correctly defined planning and deliberation, in the course of reviewing the evidence relating to those issues, equated deliberation with intention, and intimated that planning and deliberation need not precede the actual homicide – The Ontario Court of Appeal rejected this ground of appeal where it was without merit – The Supreme Court of Canada affirmed the decision – See paragraph 59.
Criminal Law – Topic 2759
Parties – Jury charge – Two accused were convicted of first degree murder for their involvement in an execution-style killing – The accused appealed, arguing that the jury charge was inadequate on the issue of parties and aiding and abetting – The Ontario Court of Appeal rejected this ground of appeal where on the evidence, the submissions had no air of reality – The court stated that once the jury was satisfied that both accused were at the crime scene, there was no room to argue for a lesser or greater involvement between them – The Supreme Court of Canada affirmed the decision – See paragraph 59.
Criminal Law – Topic 4358
Procedure – Jury charge – Directions regarding circumstantial evidence – [See all
Criminal Law – Topic 4392
].
Criminal Law – Topic 4369
Procedure – Jury charge – Directions regarding motive – Two accused were convicted of first degree murder – The accused appealed, arguing that the jury charge respecting motive was inadequate because, firstly, the charge effectively withdrew from the jury’s consideration the evidence of lack of motive, and secondly, the charge failed to instruct the jury with respect to proved absence of motive – The Ontario Court of Appeal rejected these grounds of appeal as being without merit – The Supreme Court of Canada affirmed the decision – See paragraph 59.
Criminal Law – Topic 4392
Procedure – Jury charge – Directions re inferences of guilt (incl. consciousness of guilt) – The accused were convicted of first degree murder following an “execution-style killing” – The accused appealed arguing that the jury was not properly instructed regarding the inferences to be drawn from the conduct of the accused after the murder (i.e., fleeing the jurisdiction, running from police to avoid arrest and attempting to dispose of one of the murder weapons) – The Supreme Court of Canada dismissed the appeals where the trial judge’s instructions were adequate – See paragraphs 1 to 60.
Criminal Law – Topic 4392
Procedure – Jury charge – Directions re inferences of guilt (incl. consciousness of guilt) – Two accused, while on parole, allegedly killed a man – They fled and admittedly robbed two banks – They appealed first degree murder convictions, arguing that jury was not instructed in accordance with R. v. Arcangioli (S.C.C.) that the consciousness of guilt evidence had no probative value respecting the murder, because the evidence was as equally related to the robberies and parole violations as it was to the killing – The Supreme Court of Canada affirmed that there was no need in this case for the trial judge to issue a “no probative value” instruction pursuant to Arcangioli – See paragraphs 24 to 35.
Criminal Law – Topic 4392
Procedure – Jury charge – Directions re inferences of guilt (incl. consciousness of guilt) – Two accused were convicted of first degree murder – They appealed arguing that the jury was not instructed in accordance with R. v. Court and Monaghan (Ont. C.A.) that the reasonable doubt standard should be applied separately to evidence of consciousness of guilt (e.g., flight evidence) – The Ontario Court of Appeal overruled R. v. Court and Monaghan because it was wrongly decided – The court held that evidence of consciousness of guilt should not be considered in isolation and taken into account only when it satisfies the reasonable doubt standard – Rather, it should be considered with all of the other evidence in determining whether guilt is established – Therefore, there was no error in the failure to charge in accordance with R. v. Court and Monaghan – The Supreme Court of Canada affirmed the decision – See paragraphs 36 to 58.
Criminal Law – Topic 4392
Procedure – Jury charge – Directions re inferences of guilt (incl. consciousness of guilt) – The Supreme Court of Canada stated that evidence of after-the-fact behaviour is often called “consciousness of guilt evidence” since it is introduced to show that the accused was aware of having committed the crime in question and acted for the purpose of evading detection and prosecution – The court stated that “that label is somewhat misleading and its use should be discouraged … to the extent a general description is necessary, the use of more neutral language such as ‘evidence of post-offence conduct’ or ‘evidence of after-the-fact conduct’ is preferable – See paragraph 20.
Criminal Law – Topic 4392
Procedure – Jury charge – Directions re inferences of guilt (incl. consciousness of guilt) – The Supreme Court of Canada discussed post-offence conduct and consciousness of guilt – See paragraphs 19 to 23 – The court stated that “evidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborative role. Like any piece of circumstantial evidence, an act of flight or concealment may be subject to competing interpretations and must be weighed by the jury, in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion.” – See paragraph 21.
Criminal Law – Topic 4392
Procedure – Jury charge – Directions re inferences of guilt (incl. consciousness of guilt) – The Supreme Court of Canada discussed when evidence of post-offence conduct will have no probative value and when the jury should be so instructed – See paragraphs 24 to 33.
Criminal Law – Topic 4392
Procedure – Jury charge – Directions re inferences of guilt (incl. consciousness of guilt) – The Supreme Court of Canada discussed the standard of proof for evidence of post-offence conduct and how a jury should be instructed in this regard – See paragraphs 36 to 58.
Criminal Law – Topic 4392
Procedure – Jury charge – Directions re inferences of guilt (incl. consciousness of guilt) – The Supreme Court of Canada stated that “in cases where … the post-offence conduct of an accused is put before the jury, the trial judge should nevertheless provide an instruction regarding the proper use of that evidence. The purpose of such a charge is to counter the jury’s natural tendency to leap from evidence of flight or concealment to a conclusion of guilt, and to ensure that alternative explanations for the accused’s conduct are given full consideration. In particular, the trial judge should remind the jury that people sometimes flee or lie for entirely innocent reasons, and that even if the accused was motivated by a feeling of guilt, that feeling might be attributable to some culpable act other than the offence for which the accused is being tried. The jury should be instructed to keep these principles in mind when deciding how much weight, if any, to give such evidence in the final evaluation of guilt or innocence” – See paragraph 36.
Criminal Law – Topic 5313.01
Evidence and witnesses – Inferences – From consciousness of guilt – [See all
Criminal Law – Topic 4392
].
Criminal Law – Topic 5316.1
Evidence and witnesses – Inferences – Of guilt – From fleeing crime scene – [See all
Criminal Law – Topic 4392
].
Criminal Law – Topic 5510
Evidence and witnesses – Evidence of accomplices – Warning to jury of danger of reliance on – Two accused were convicted of first degree murder – At trial, a witness with an extensive criminal record (Corner), testified that one of the accused told him that they had killed somebody – The judge instructed the jury that because of Corner’s questionable character, his evidence should be viewed with great caution and circumspection – The judge later reviewed four pieces of evidence which he said provided independent support for Corner’s testimony – The accused appealed, arguing that the judge’s Vetrovec warning was inadequate because he failed to state that it would be appropriate to act upon Corner’s evidence only to the extent that it was supported by confirmatory, independent evidence – The Ontario Court of Appeal held that there was no error in the Vetrovec instruction – The Supreme Court of Canada affirmed the decision – See paragraph 59.
Evidence – Topic 336
Circumstantial evidence – Evidence of consciousness of guilt – [See all
Criminal Law – Topic 4392
].
Cases Noticed:
R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 2].
R. v. Court (G.R.) and Monaghan (P.D.) (1995), 81 O.A.C. 111; 99 C.C.C.(3d) 237 (C.A.), not folld. [para. 13].
R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 14].
R. v. Poirier (M.R.) (1995), 56 B.C.A.C. 131; 92 W.A.C. 131 (C.A.), not folld. [para. 14].
R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 16].
R. v. Peavoy (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226 (C.A.), refd to. [para. 19].
Gudmondson v. The King (1933), 60 C.C.C. 332, refd to. [para. 23].
R. v. Marinaro (G.), [1996] 1 S.C.R. 462; 197 N.R. 21; 91 O.A.C. 117, reversing (1994), 76 O.A.C. 44; 95 C.C.C.(3d) 74 refd to. [para. 28].
R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 28].
United States v. Myers (1977), 550 F.2d 1036 (5th Cir. Ct.), refd to. [para. 30].
United States v. Boyle (1982), 675 F.2d 430 (1st Cir. Ct.), refd to. [para. 30].
United States v. Kalish (1982), 690 F.2d 1144 (5th Cir. Ct.), refd to. [para. 30].
R. v. Wiltse (J.W.) and Yarema (M.W.) (1994), 72 O.A.C. 226; 19 O.R.(3d) 379 (C.A.), refd to. [para. 31].
R. v. Burdick (1975), 27 C.C.C.(2d) 497 (Ont. C.A.), refd to. [para. 38].
R. v. Cole (1980), 53 C.C.C.(2d) 269 (Ont. C.A.), refd to. [para. 38].
R. v. Parrington (1985), 9 O.A.C. 76; 20 C.C.C.(3d) 184 (C.A.), refd to. [para. 38].
R. v. Smith (L.K.) (1993), 31 B.C.A.C. 189; 50 W.A.C. 189 (C.A.), refd to. [para. 38].
R. v. Richens, [1993] 4 All E.R. 877 (C.A.), refd to. [para. 38].
R. v. McNamara et al. (No. 1) (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 38].
R. v. Bouvier (1984), 1 O.A.C. 302; 11 C.C.C.(3d) 257 (Ont. C.A.), affd. [1985] 2 S.C.R. 485; 64 N.R. 321; 11 O.A.C. 185, refd to. [para. 38].
R. v. Minhas (1986), 16 O.A.C. 42; 29 C.C.C.(3d) 193 (C.A.), refd to. [para. 38].
R. v. Stewart, [1977] 2 S.C.R. 748; 12 N.R. 201; 1 A.R. 455, refd to. [para. 39].
R. v. MacKenzie, [1993] 1 S.C.R. 212; 146 N.R. 321; 118 N.S.R.(2d) 290; 327 A.P.R. 290, dist. [para. 50].
R. v. Nadeau, [1984] 2 S.C.R. 570; 56 N.R. 130, refd to. [para. 52].
R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 52].
Counsel:
David E. Harris, for the appellant, White;
John H. Hale, for the appellant, Côté;
Kenneth R. Campbell and Susan L. Reid, for the respondent.
Solicitors of Record:
David E. Harris, Toronto, Ontario, for the appellant, White;
Patrick F.D. McCann, Ottawa, Ontario, for the appellant, Côté;
Susan L. Reid, Toronto, Ontario, for the respondent.
This appeal was heard on March 26, 1998, before L’Heureux-Dubé, Gonthier, Cory, McLachlin, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada. The following decision was delivered for the court, in both official languages, by Major, J., on July 9, 1998.
