Regina v. Charrette
[Indexed as: R. v. Charrette]
39 O.R. (3d) 407
 O.J. No. 934
Docket No. C19369
Court of Appeal for Ontario
McKinlay, Catzman and Rosenberg JJ.A.
March 4, 1998
Charter of Rights and Freedoms — Fundamental justice
— Right to remain silent — Accused making incriminating statement to senior detention official while making allegation against another detainee — Accused knew he was speaking with correctional official — No trick employed by state agent
— Trial judge correct in holding that admission of statement would not infringe accused’s right to remain silent — Canadian Charter of Rights and Freedoms, s. 7.
Criminal law — Evidence — Confessions and admissions
— While awaiting trial on murder charge accused told Deputy Superintendent of detention centre that he had killed deceased
— Accused aware that he was speaking to person in authority
— Statement voluntary.
Criminal law — Trial — Charge to jury — Consciousness of guilt — Use of phrase “consciousness of guilt” in charge to jury not constituting reversible error — Accused making admission that he stole money from deceased and lied to police after murder — Trial judge not erring in refusing to instruct jury to disregard evidence — Accused’s conduct after murder not equally explained by having stolen money from deceased
— Appeal dismissed.
The accused was charged with first degree murder. He admitted that he stole money from the deceased, fled the scene and lied to the police and a 911 operator. While in detention awaiting trial, the accused suspected another inmate of tampering with his food. He complained to the Deputy Superintendent of the detention centre, stating that it was the inmate’s grandmother “that I killed”. The Deputy Superintendent reported the conversation to the police. The contents of the conversation were ruled admissible at trial. The accused was convicted. He appealed.
Held, the appeal should be dismissed.
The fact that the trial judge referred to the evidence of the accused’s conduct as evidence of consciousness of guilt rather than as “after-the-fact conduct” did not in itself constitute reversible error. The trial judge was not required to instruct the jury to disregard the after-the-fact conduct evidence because the accused admitted stealing money from the deceased, as it was apparent that she concluded that the accused’s after- the-fact conduct was not equally explained by the relatively minor theft to which he admitted. Further, the jury was correctly instructed to disregard the evidence if there was a doubt regarding reason for the accused’s after-the-fact conduct.
The accused was aware that the Deputy Superintendent of the detention centre was a person in authority. The Crown had proved that the statement was voluntary.
The trial judge found that the Deputy Superintendent was an agent of the state but that the manner in which the evidence was acquired did not infringe the accused’s right to choose to remain silent. This was a finding of fact and was supported by the evidence. The accused knew of the Deputy Superintendent’s identity and occupation and sought him out. The Deputy Superintendent did not trick the accused, and there was no special relationship of trust between him and the accused. The accused failed to meet the burden of proving that he was improperly deprived of his right to silence.
Cases referred to
R. v. Arcangioli,  1 S.C.R. 129, 111 D.L.R. (4th) 48,
162 N.R. 280, 87 C.C.C. (3d) 289, 27 C.R. (4th) 1; R. v.
Arsenault,  O.J. No. 3977, Ont. C.A., October 2, 1997;
R. v. Lifchus,  3 S.C.R. 320, 118 Man. R. (2d) 218,
150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218,  10
W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1; R. v. Peavoy (1997), 34 O.R. (3d) 620, 117 C.C.C. (3d) 226, 9 C.R. (5th) 83 (C.A.); R. v. Whittle,  2 S.C.R. 914, 116 D.L.R. (4th) 416, 170 N.R. 16, 23 C.R.R. (2d) 6, 92 C.C.C. (3d) 11, 32 C.R. (4th) 1
Statutes referred to
Canadian Charter of Rights and Freedoms, s. 7 Criminal Code, R.S.C. 1985, c. C-46, s. 231(5)(b)
APPEAL by the accused from his conviction for first degree murder.
Michelle K. Fuerst, for appellant.
John Corelli, for the Crown, respondent.
BY THE COURT: — The appellant appeals his conviction for first degree murder following a trial before Pardu J. and a jury. The case against the appellant was largely based on circumstantial evidence. There was evidence that the appellant and one Allan Gray were in the deceased’s home at the time of the killing. Gray testified and denied having committed the offence and claimed that he was passed out in his room following a night of drinking. The appellant also testified and denied killing the deceased and in his testimony implied that Gray had committed the offence. The appellant admitted that he had stolen money from the deceased, fled the scene and lied to the police and to the 911 operator. There was also some evidence of motive and prior threats by the appellant against the deceased. The appellant raised a number of grounds of appeal. Despite Ms. Fuerst’s very able argument we are all of the view that this appeal cannot succeed. The various grounds of appeal may be briefly dealt with.
Consciousness of Guilt
The appellant argues that the trial judge erred in referring to the evidence of the appellant’s conduct as evidence of consciousness of guilt rather than as “after-the-fact conduct” as recommended by this court in R. v. Peavoy (1997), 34 O.R. (3d) 620, 117 C.C.C. (3d) 226. In that case, Weiler J.A. stated at p. 628 O.R., p. 237 C.C.C. that “more neutral terminology is desirable”. However, use of the traditional phrase “consciousness of guilt” does not in and of itself constitute reversible error. The trial judge in this case fully reviewed the appellant’s various explanations for his flight and falsehoods and instructed the jury that this kind of evidence must be treated with great caution. The appellant was not prejudiced by the terminology used by the trial judge.
Ms. Fuerst also argues that since the appellant admitted to stealing money from the deceased, the trial judge should have instructed the jury to disregard the after-the-fact conduct evidence entirely. We do not agree. In R. v. Arcangioli,  1 S.C.R. 129 at p. 145, 87 C.C.C. (3d) 289 at p. 301, Major J. stated that where an accused’s conduct “may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence”. In our view, it is apparent that the trial judge concluded that the appellant’s after-the- fact conduct was not “equally explained” by the relatively minor theft to which the appellant admitted. Accordingly, it was for the jury to determine, having regard to all of the circumstances, whether an inference of guilt should be drawn from this conduct. The trial judge clearly explained to the jury the use to be made of this evidence and directed the jury to the appellant’s various explanations. She then went further and warned the jury “emphatically” that the evidence of falsehoods and leaving the crime scene had “no probative value” if this conduct could be equally explained by the admitted theft.
The appellant argues that the charge to the jury with respect to reasonable doubt did not accord with the model charge suggested in R. v. Lifchus,  3 S.C.R. 320, 118 C.C.C. (3d) 1. The charge to the jury given in this case was the standard charge on reasonable doubt in use in this province prior to the decision in Lifchus. It contains virtually all of the elements suggested by Cory J. and none of the errors made by the trial judge in that case. Most importantly, the trial judge did not fall into the error of suggesting that reasonable doubt is an ordinary expression which has no special meaning in the criminal law context. As Cory J. stated in Lifchus at p. 336 S.C.R., pp. 13-14 C.R.R., a charge that is consistent with the principles set out in that case will be sufficient regardless of the particular words used by the trial judge. This court on several occasions has held that the standard charge to the jury used in this province prior to Lifchus is sufficient: see, for example, R. v. Arsenault, released October 2, 1997.
The Statement to the Deputy Superintendent
While awaiting trial in the Sault Ste. Marie detention centre, the appellant came to believe that another inmate, a relative of the deceased, may have been tampering with his food. The appellant complained to Robert Fletcher, the Deputy Superintendent. According to Fletcher, the appellant asked if this person was working in the kitchen. The Deputy Superintendent asked why he wanted to know and the appellant responded by stating that it was the inmate’s grandmother “that I killed”. Some months later, Fletcher mentioned the conversation to some police officers. He later gave a statement to the police. Fletcher had provided information to the police on other occasions and testified that he perceives his loyalties to lie with police officers. The contents of the conversation were ruled admissible after a voir dire. Ms. Fuerst argues that this statement should not have been admitted because it was not proved to be voluntary and its admission violated the appellant’s rights under s. 7 of the Canadian Charter of Rights and Freedoms.
The voluntariness argument was put forward on the basis that the Crown failed to prove that the appellant was aware of the consequences of making the statement. There is no merit to this submission. The appellant was aware that he was speaking to a person in authority. There was no evidence that his capacity to make a statement was in any way impaired. The Crown proved that the statement was voluntary in accordance with the authorities binding on this court: see R. v. Whittle,  2 S.C.R. 914 at pp. 934-41, 92 C.C.C. (3d) 11 at pp. 26-31.
With respect to the alleged s. 7 violation, Ms. Fuerst argues that the appellant’s right to silence was infringed because the appellant was unaware that he was speaking to an agent of the state and that he had no choice but to speak to Mr. Fletcher to remedy the problem with his food. The trial judge found that Fletcher was an agent of the state but that the manner in which the evidence was acquired did not infringe the appellant’s right to choose to remain silent. This was essentially a finding of fact and it is supported by the evidence. The appellant knew of Mr. Fletcher’s identity and occupation and sought Fletcher out. There was no improper conduct on the part of Mr. Fletcher in his meeting with the appellant. Mr. Fletcher did not trick the appellant and the trial judge found that there was no special relationship of trust between Fletcher and the appellant. Fletcher was speaking to the appellant in his formal capacity as Deputy Superintendent. The appellant failed to meet the burden of proving that he had been improperly deprived of his right to silence.
Charge to the Jury on First Degree Murder
The appellant argues that the trial judge erred in failing to direct the jury that if the injuries caused to the deceased’s genitals occurred after death, the appellant could not be convicted of first degree murder under s. 231(5)(b) of the Criminal Code, R.S.C. 1985, c. C-46. There is no merit to this ground of appeal. The possibility that the injuries happened after death was not raised at trial. Indeed, the pathologist was not cross-examined about this issue at all. When all of the evidence is considered, not merely the expert evidence, there is no air of reality to this argument.
Accordingly, the appeal is dismissed.