



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Charlie,









2020 BCCA 39




Date: 20200124

Docket: CA44887

Between:

Regina

Respondent

And

James David Junior
Charlie

Appellant

Restriction
on publication:
A publication ban has been imposed under
s. 486.5 of the
Criminal Code
restricting the publication,
broadcasting or transmission in any way of evidence that could identify a victim/witness/undercover
officer.
This publication ban applies indefinitely unless otherwise
ordered.

SEALED
IN PART




Before:



The Honourable Madam Justice Saunders

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Butler




On appeal from:  An
order of the Supreme Court of British Columbia, dated
October 12, 2017 (
R. v. Charlie
, Prince George
Docket 36893‑13).

Oral Reasons for Judgment




Counsel for the Appellant:



M.P. Klein, Q.C.

R. Thirkell





Counsel for the Respondent:



D.M. Layton, Q.C.





Place and Date of Hearing:



Vancouver, British
  Columbia

January 24, 2020





Place and Date of Judgment:



Vancouver, British
  Columbia

January 24, 2020








Summary:

The appellant was convicted
of first degree murder. In the course of deliberations, the jury asked several
questions. One question concerned the mens rea of party liability for murder.
Held: Appeal allowed. The judge gave an answer that did not describe the mens
rea correctly and omitted reference to knowledge the principal offender
intended to commit the crime. The verdict cannot be saved and a new trial is
required.

[1]

SAUNDERS J.A.
: James David Junior Charlie was convicted by a jury
on October 12, 2017 of one count of first degree murder of Fribjon
Bjornson on or about January 12, 2012, at or near Fort St. James,
British Columbia. On August 31, 2016, two other persons pleaded
guilty to second degree murder of Mr. Bjornson and Mr. Charlie
pleaded guilty to offering indignities to a dead body or human remains, between
January 12, 2012, and February 1, 2012, at or near Fort St.
James.

[2]

The circumstances of Mr. Bjornsons death are brutal. The theory of
the Crown was that Mr. Charlie was one of four people who assaulted Mr. Bjornson
over a prolonged period of time in the basement of a residence, that Mr. Charlie
provided a wire or cord to one of the men who had beaten Mr. Bjornson,
knowing the man would use it to strangle Mr. Bjornson, and that with
others, Mr. Charlie took Mr. Bjornsons dead body to the shore of
nearby Stuart Lake where it was covered with snow for about a week, before he
and another person moved it to a location where the indignities occurred.

[3]

At trial, the question for the jury was whether Mr. Charlie was
guilty of first degree murder or alternatively, second degree murder or
manslaughter. Those questions engaged the law on party liability for murder, a
mens
rea
issue. The judge instructed the jury on the elements of first degree
murder, second degree murder and manslaughter, and on the law of party
liability. The judge did not instruct the jury on the included offence of
attempted murder, nor on the defence of intoxication.

[4]

The judge did not provide the jury or counsel with a copy of his
instructions.

[5]

During their deliberations, the jury asked several questions of the
trial judge. The first question had three parts:

1)

Can we
have a
copy
of the judges statement regarding elements of 1st & 2nd
degree murder and manslaughter?  We would prefer this is writing rather than
the judge explaining it to us.

2)

We are
unclear on the element of forcible confinement.

3)

For 2nd degree
à
the element
of unlawful act w assault with weapon [
sic
]. Is the only consideration
the
cord
?

[6]

In response, the judge provided the jury with a 31 page excerpt of
his charge to the jury, provided an answer on the jurys second part of its
question on forcible confinement, and asked for clarification of the third part
of the question.

[7]

The jury then returned with a second question, restating the third part
of its earlier question that the judge had not understood. That question
focussed on the character of the cord as a weapon used in the assault. The
judge answered that question. That evening, the judge received another question
from the jury. It disclosed part of the jurys deliberations. The judge advised
counsel the next morning that he had received this question the night before,
would seal it, and would ask the jury to rephrase the question in a way that
did not disclose their deliberations. The jury returned this question:

Please
re‑explain
the criteria for first degree
murder, second degree murder, and manslaughter.

Please
re‑explain
forcible confinement for primary and secondary parties
and
what
constitutes a continuous event and two or more separate events.

[8]

The judges response to this request was lengthy. The answer fell into
two portions. First, he addressed the potential that murder and unlawful confinement
could be one, or two, transactions and provided examples. Second, he addressed
the
actus reus
and the
mens rea
for party liability for murder
including:

To be a party to an offence or to  or to an offence you have
to first find that the principal actually committed the offence. Then you have
to find that the party did something and that act actually aided  that is
assisted or abetted  that is encouraged the principal to commit the offence.

You also have to find that the
party intended that his actions would aid  again  assist or abet, encourage,
the principal to do the act. So they have  the  the party has to do something
that actually assists and they have to actually intend to actually insist  to
assist the party, the principal, rather.

[9]

Mr. Charlie appeals from conviction. He says the judge erred in
several ways in answering the jurys questions, in refusing to instruct the
jury on the partial defence of intoxication, and in failing to instruct the
jury on all available verdicts, specifically the included offence of attempted
murder. On the questions, Mr. Charlie contends, in particular, that the
judge erred in answering the jurys last question by giving a faulty
instruction on the
mens rea
of party liability for murder.

[10]

In most appeals the Crown vigorously supports the trial results, but not
always is it able to do so consistent with its most important duty, in the
public interest, to uphold the administration of justice and ensure trial
process is fair. This is one of those cases in which the Crown, acting in its
highest tradition and I am sure after much reflection, does not contest all of
the grounds of appeal raised by the appellant.

[11]

The Crown does dispute all of the grounds of appeal raised except the
one concerning the answer on the
mens rea
of party liability for murder.
On that ground, on the
mens rea
, the Crown concedes that the appeal
should be allowed because the instruction suggests that a person can be
convicted as a party
to murder
provided he or
she intended to assist the principal in doing the act, and does not instruct
the jury that the party must have known that the principal intended to commit
the crime
:
R. v. Briscoe
,
2010 SCC 13 at para. 17
;
R. v. Podolski
,
2018 BCCA 96 at paras. 194195. The Crown further acknowledges
that the verdict cannot be saved under
the curative
proviso of s.
686(1)(b)(iii) of the
Criminal Code
, R.S.C.
1985, c. C‑46.

[12]

We have had the opportunity to review the troubled instruction, and I agree
that the instruction I have quoted contains the error conceded by the Crown.
The error is central to the instruction on the
mens rea
of party
liability for murder. As such, it is not a harmless error. Nor can it be said
that although serious, the evidence is so overwhelming that a reasonable and
properly instructed jury would inevitably have convicted:
R. v. Van
, 2009 SCC 22.

[13]

While this conclusion is a burden to all those interested in pressing
the case to a decisive conclusion, particularly the family and friends of
Mr. Bjornson, and also those called on to take part in the trial, in my
view, the verdict must be set aside and a new trial ordered.

[14]

Accordingly, I would set aside the conviction and order a new trial.

[15]

FITCH J.A.
: I agree.

[16]

BUTLER J.A.
: I agree.

[17]

SAUNDERS J.A.
: The appeal is allowed, the conviction is set aside
and a new trial is ordered.

The
Honourable Madam Justice Saunders


