Jun 2, 2020

MLB Headnote and Key Numbers

R. v. Jeanvenne, 2016 ONCA 101 (CanLII)

R. v. Jeanvenne (A.) (2016), 344 O.A.C. 377 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. FE.008

Her Majesty the Queen (respondent) v. André Jeanvenne (appellant)

(C57475; 2016 ONCA 101)

Indexed As: R. v. Jeanvenne (A.)

Ontario Court of Appeal

Weiler, Tulloch and Brown, JJ.A.

February 5, 2016.

Summary:

The accused was convicted of two dissimilar first degree murders committed 17 years apart (Poulin and Richard). The only commonality was that both murders were investigated together in a "Mr. Big" operation, resulting in inculpatory statements. The accused appealed, submitting that the trial judge erred in refusing to sever the two counts.

The Ontario Court of Appeal, in a judgment reported (2010), 270 O.A.C. 22, allowed the appeal, set aside the convictions and ordered separate trials for each count. Although unnecessary to do so, the court would have ordered a new trial on the first murder, because the trial judge erred in failing to grant a mistrial after two prejudicial outbursts by an unsavoury Crown witness. The accused was re-tried for the Poulin murder. A jury was unable to reach a verdict and the Crown later stayed the charge. On the re-trial for the Richard murder, a jury convicted him of first degree murder. At that trial, the jury heard evidence that as a result of a "Mr. Big" operation, the accused confessed to killing both men. The accused appealed, arguing that his confession in the "Mr. Big" operation should not have been admitted and that the trial judge's directions to the jury were deficient and not fair and balanced.

The Ontario Court of Appeal allowed the appeal and ordered a new trial. The trial judge erred in failing to put the defence position respecting motive to the jury, gave an erroneous prejudicial example of confirmatory evidence to the jury, and omitted to put to the jury relevant evidence favourable to the accused. Further, permitting the jury to hear that the accused confessed to both murders served "to reaffirm my conclusion that, overall, the appellant's trial was not fair". The court found it unnecessary to determine whether the "Mr. Big" operation evidence should have been admitted.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - The accused was charged with two dissimilar murders committed 17 years apart (Poulin and Richard) - The only commonality was that both murders were investigated together in a "Mr. Big" operation, resulting in inculpatory statements - Jury convictions for first degree murder were set aside and new trials ordered - The appellate court held that due to the prejudicial effect of the two confessions, the two murders had to be tried separately without reference to the other - At the second Poulin murder trial, the jury was unable to reach a verdict and the Crown later stayed that charge - At the second Richard murder trial, the Crown elicited evidence that the accused not only confessed to killing Richard in the "Mr. Big" operation, but also Poulin 17 years' earlier - The Ontario Court of Appeal stated that "While the Crown may have observed the letter of the court's direction, in that separate trials were held, the Crown did not observe the spirt and implicit direction given in Jeanvenne 2010, aimed at ensuring the appellant's Charter protected right to a fair trial. It is cause for great concern." - In addition to misdirections to the jury that required a new trial, the court stated that "the evidence led of the appellant's confession to the Poulin murder during this trial and the Supreme Court's decision in Hart only serve to reaffirm my conclusion that, overall, the appellant's trial was not fair" - See paragraphs 20 to 29, 55.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - [See Criminal Law - Topic 4369].

Criminal Law - Topic 4369

Procedure - Charge or directions - Jury or judge alone - Directions regarding motive or design - The accused was convicted by a jury of first degree murder - There was no direct evidence against the accused, but the Crown relied on a confession obtained during a "Mr. Big" operation - The victim allegedly "ratted" on the accused respecting a robbery eight years before the murder - The Crown offered that as the accused's motive - The Ontario Court of Appeal held that the trial judge's directions to the jury was seriously deficient - The directions contained only the inculpatory aspects of evidence respecting motive and not the exculpatory aspect of that same evidence - The court stated that "Overall, the trial judge did not put the defence position on motive to the jury" - The trial judge also erred in citing crime scene evidence as being confirmatory when it was not and failing to mention crime scene evidence that was favourable to the accused - For all of these errors, the court ordered a new trial - The jury charge was not fair and balanced - The accused's trial was not fair - See paragraphs 30 to 55.

Criminal Law - Topic 4953

Appeals - Indictable offences - New trials - Grounds - Admission of prejudicial evidence - [See Civil Rights - Topic 3157].

Criminal Law - Topic 4955

Appeals - Indictable offences - New trials - Grounds - Cumulative effect of errors - [See Criminal Law - Topic 4369].

Cases Noticed:

R. v. Hart (N.L.), [2014] 2 S.C.R. 544; 461 N.R. 1; 353 Nfld. & P.E.I.R. 222; 1099 A.P.R. 222; 2014 SCC 52, refd to. [para. 5].

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. 30].

R. v. Baltovich (R.) (2004), 192 O.A.C. 366; 73 O.R.(3d) 481 (C.A.), refd to. [para. 30].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 31].

R. v. Daley - see R. v. W.J.D.

Azoulay v. R., [1952] 2 S.C.R. 495, refd to. [para. 31].

R. v. Nelson (K.) (2014), 325 O.A.C. 381; 318 C.C.C.(3d) 476; 2014 ONCA 853, refd to. [para. 32].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 43].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 43].

Counsel:

Ian R. Smith and Amy J. Ohler, for the appellant;

Michael Berstein, for the respondent.

This appeal was heard on January 21, 2016, before Weiler, Tulloch and Brown, JJ.A., of the Ontario Court of Appeal.

On February 5, 2016, Weiler, J.A., released the following judgment for the Court of Appeal.