



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Koopmans,









2017 BCCA 10




Date: 20170112

Docket:
CA43216

Between:

Regina

Respondent

And

John Ike Koopmans

Appellant




Before:



The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Willcock




On appeal from:  An
order of the Supreme Court of British Columbia,
dated April 11, 2015 (
R. v. Koopmans
, Penticton Registry
41337).




Counsel for the Appellant:



H.M. Patey and M.
  Reinhart





Counsel for the Respondent:



M. Levitz, Q.C.





Place and Date of Hearing:



Vancouver, British
  Columbia

November 9, 2016





Place and Date of Judgment:



Vancouver, British
  Columbia

January 12, 2017









Written Reasons by:





The Honourable Mr. Justice Willcock





Concurred in by:





The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Tysoe








Summary:

The appellant challenges his
convictions on two counts of second degree murder and one count of attempted
murder. He argues the trial judge erred in declining to give a Vetrovec warning
in respect of a Crown witness with an alleged history of involvement with
drugs. He further argues the judge erred by not permitting the defence to
adduce evidence of the witness medical records and hearsay statements said to
go to his credibility. Finally, the appellant argues the judge erred in her
charge to the jury by not including a lesser included offence of attempted
murder and by confusing the jury by engaging in serial revision and clarification
of the charge. Held: appeal dismissed. The judge appropriately exercised her
discretion to not give a Vetrovec warning. Further, the appellant was not
precluded at trial from adducing the credibility evidence he now claims he was
not able to adduce. Finally, the judge did not err in her charge to the jury.
Assault is not necessarily an included offence in attempted murder. The judges
method of revising and clarifying the charge was not
so
confusing as to undermine the verdicts in this case
.

Reasons
for Judgment of the Honourable Mr. Justice Willcock:

Introduction

[1]

On April 11, 2015, after deliberating for two days, a jury found
the appellant guilty of the second degree murder of Robert Wharton, the second
degree murder of Rosemary Fox, and the attempted murder of Bradley Martin on
March 30, 2013, contrary to s. 235(1) and 239(1) of the
Criminal Code,
R.S.C. 1985, c. C‑46
.

[2]

All convictions are appealed on the basis that the trial judge erred in
law by:

a)

failing to instruct the jury that it must find
something in the nature of confirmatory evidence before relying upon the
evidence of a witness, Bradley Martin, said by the appellant to be a person of
disreputable character, whose testimony occupied a central position in the demonstration
of guilt (i.e., failing to give a 
Vetrovec
warning);

b)

failing to allow evidence relevant to the credibility of Bradley Martin
to be put before the jury (i.e., statements made by Mr. Martin to a
police officer considered by the trial judge to be hearsay; and certain of Mr. Martins
medical records); and

c)

failing to
instruct the jury in a clear fashion, by periodically revising the charge in
response to submissions in a manner that is said to have been confusing.

[3]

Further, an appeal of the conviction for the attempted murder of Bradley
Martin is founded upon the argument that the judge erred in law by failing to
leave any lesser included offence in relation to that charge with the jury.

Lesser Included Offences

[4]

I do not agree that the judge was required to instruct the jury with
respect to lesser included offences. Count 3 of the indictment in this
case reads as follows:

John KOOPMANS, on or about the 30th
day of March, 2013, at or near Princeton, in the Province of British Columbia,
did, using a firearm, attempt to commit the murder of Bradley MARTIN, contrary
to section 239(1)(a) of the Criminal Code.

[5]

The appellant says if the jury concluded he had shot at Mr. Martin
but that intent to kill Mr. Martin was not proven beyond a reasonable
doubt, it would have been proper to convict him of the lesser included offence
of assault with a firearm. He argues that because no instruction was provided
to the jury and he was convicted on the more serious offence, a new trial is needed.

[6]

In my view, no lesser offences are included in the attempted murder
charge laid in this case. Assault is not an included offence in attempted
murder
simpliciter
:
R. v.

C.D.; R. v. C.D.K
.,
2005 SCC 78 at para. 59. As Watt J.A. noted in
R. v. Pelletier
,
2012 ONCA 566:

[105]    One offence may be
included in another in any of three ways:

i.

by
description in the enactment creating the offence;

ii.

by
description in the indictment or count in which the accused is charged; or

iii.

by
specific statutory provision.

See,
R. v. Simpson
(No. 2),
(1981),
58 C.C.C. (2d) 122
(Ont. C.A.)
, at p. 133
;
Luckett
v. The Queen
,
[1980]
1 S.C.R. 1140
, at p. 1141
.

[106]    An included offence is part of the main
(principal) offence. The offence charged as described in the enactment that
creates it, or in the count that charges it, must contain the essential
elements of the included offence:
Simpson
, at p. 133;
R. v. Fergusson
,

[1962] S.C.R. 229
, at p. 233
.

[107]    Section 239(1) of the
Criminal Code
creates
the offence of attempted murder:
Simpson
, at p. 134. However, the
subsection, in particular its phrase by any means, does not describe the
ways in which the offence of attempted murder may be committed:
Simpson
,
at p. 140. The offence of attempted murder may be committed without
committing an assault or causing any bodily harm whatsoever:
Simpson
, at
p. 142. It follows that, as described in the enactment creating it,
attempted murder does not include any crime of assault or unlawfully causing
bodily harm:
Simpson
, at pp. 142‑143.

[108]

Sections 662(2)‑(6)
permit conviction of certain offences on indictments for other crimes. The
effect of these provisions is to declare certain offences to be included in
other offences. Nothing in these provisions permits a court to convict an
accused of aggravated assault on an unparticularized count of attempted murder.

[Footnotes omitted.]

[7]

The indictment in this case included the words using a firearm but
that alone, in my view, did not amount to such particularization as to make the
indictment an expanded charge that included assault. As the Court noted in
Pelletier
,
considering a similarly drafted charge:

[110]    Attempted murder is one
of several offences in the
Criminal Code
that attracts a minimum
punishment when firearms are used in its commission. The inclusion of the words
while using a firearm in a count that charges attempted murder puts an
accused on notice that, if a conviction of attempted murder is entered, he or she
will be subject to a minimum punishment in accordance with the scheme put in
place by sections 239(1)‑(3):
R. v. Manley
,
2011 ONCA 128, (2011),
269
C.C.C. (3d) 40
,

at paras. 54‑61
;
R. v. D.(A.)

(2003),
173 C.C.C.
(3d) 177 (B.C.C.A.)
, at paras. 29-31
.
The addition of the phrase while using a firearm, does
not
amount to a
particularization of the means by which the offence was committed, thus cannot
serve to expand the offences included in the description of the enactment
creating the principal offence.

[8]

Because the indictment in this case states the offence was committed by
the appellant using a firearm, not by using a firearm or by shooting with
a firearm, it amounts to the same thing as the charge in
Pelletier
,
that the appellant committed the offence while using a firearm. That being
the case,

and because I agree with the reasoning of Watt J.A., I
would dismiss the appeal on this ground.

The
Vetrovec
Warning

[9]

A
voir dire
was
held to determine if Bradley Martin, a witness who clearly played a central
position in the Crowns case, was a person of such unsavoury character that the
jury should be warned, as a matter of common sense, that something in the
nature of confirmatory evidence should be found before relying upon his evidence.
(The warning described in
R. v. Vetrovec
,
[1982] 1 S.C.R. 811
).
The oral reasons for judgment on the
voir dire
are indexed as 2015 BCSC
2517.

[10]

The appellant notes that in

R. v. Brooks
,
2000 SCC 11,
the
Supreme Court of Canada identified the two factors to be weighed in determining
whether a
Vetrovec
warning is necessary: the credibility of the witness and the importance of the
witness' evidence to the case. The Court rejected the suggestion that the categories
of witnesses who might attract such a warning are limited, for example, to
jailhouse informants and accomplices. The appellant submits the trial judge
applied such a categorical standard, either by requiring evidence that the
witness was involved in an operation comparable to a crystal meth emporium,
or by requiring evidence the witness was a jailhouse informant, an accomplice,
or a perjurer to warrant a
Vetrovec
warning.

[11]

The appellant submits the test for a
Vetrovec
warning is broader, more nuanced, and more case-specific than that described
by the judge. He says
Brooks
describes the appropriate analysis: a court
asked to provide a
Vetrovec
warning must first consider whether there is
an objective basis upon which to suspect the credibility of the witness. Once
there is found to be such an objective basis, the court must consider the
importance of the evidence of that witness.

[12]

It is common ground that the testimony of Mr. Martin, as the only
eye-witness, was central to the Crowns case. When a witness testimony is
essential to the Crowns case, the threshold which may draw a
Vetrovec
warning is lowered.

[13]

The Crown says a
Vetrovec
warning is not called for whenever the
credibility of a witness is challenged or doubtful, but necessary only where
the witness has a disreputable or untrustworthy character (per Bastarache J.
at para. 3 of
Brooks
). The Crown concedes a witness might be found
to attract the caution as a result of a criminal record or drug use, but says Mr. Martins
criminal record is dated and his association with drugs is below the threshold
to warrant the
Vetrovec
warning because the evidence did not establish Mr. Martin has an amoral
character, lives a criminal lifestyle, has a history of dishonesty or an
interest in the outcome of the trial.

[14]

There is no dispute that the categories of witnesses who might attract a
Vetrovec
warning are not fixed. In
R. v.
Khela
,
2009 SCC 4, Fish J.
said:

[31]      trial judges, rather
than attempting to pigeonhole witnesses as an accomplices, ought instead to
consider all of the factors that might impair their credibility and decide on
that basis whether a special instruction is necessary.

[15]

At para. 3 of
Khela,
Fish J. described the witnesses
who attract the warning as including all witnesses who, because of their
amoral character, criminal lifestyle, past dishonesty or interest in the
outcome of the trial, cannot be trusted to tell the truth  even when they have
expressly undertaken by oath or affirmation to do so.

[16]

In my view, the trial judge did consider all of the factors that might
impair Mr. Martins credibility and decided on that basis a special
instruction was not necessary. Having considered
Vetrovec
and
Brooks
,
the judge held the question that has evolved is whether the witness is
unsavoury or not. She did not limit the class of persons who might attract the
warning, as suggested by the appellant.

[17]

The judge expressly considered factors said to impair Mr. Martins
credibility: his criminal record (two theft under offences from 1984,
possession of marihuana in the early 1980s, and a guilty plea to a charge of
possession for the purpose of trafficking about five years before his testimony);
allegations made by the defence that Mr. Martin was involved in drug
trafficking; his acknowledged marihuana and cocaine use; and evidence that Mr. Martin
sold crack cocaine in a small amount for under $100 to one of the victims,
Robert Wharton. The judge also referred to the fact that Mr. Martin lived
in the Wharton house, and that there was some evidence there may have been drug
activity there. However, she also noted that there was conflicting evidence in relation
to some of these allegations that would have to be weighed by the jury. She
noted that a police search of the Wharton residence had not turned up evidence of
crystal meth production, as had been suggested to Mr. Martin. She
considered Mr. Martins involvement with drugs to be substantially
different from the
Vetrovec
witness
in
R. v. Cliff,
2015
BCCA 15. Weighing all of that, she concluded (at para. 13): I do not
believe that Mr. Martin has attracted the threshold of requiring a
Vetrovec
warning, such that
it would be dangerous to convict on his evidence.

[18]

The decision whether to give a
Vetrovec
warning is discretionary and thus attracts deference on appellate review. The Crown,
citing
R. v. Bevan
,
[1993] 2 S.C.R. 599 at 602;
R. v. Brooks
at paras. 4, 24;
R. v. Mariani
,
2007 ONCA 329 at para. 24, says this Court can only intervene in that
determination if we conclude there was no foundation for the trial judges
exercise of her discretion. I would adopt Bastarache J.s description of
our role on appeal from
Brooks
at paras. 3‑4:

It is  within the trial judges discretion
to give a
Vetrovec
caution.  This discretionary approach was confirmed
by this Court in
R. v. Potvin
, [1989] 1 S.C.R. 525, at
p. 557, wherein Wilson J. states:

Vetrovec
, in my view, represents a rejection of formalistic and
a priori
categories concerning the trustworthiness of evidence both with regard to
warnings and corroboration.
In every case it is for the trial judge on the
basis of his or her appreciation of all the circumstances and, may I add, on
the basis of the application of sound common sense, to decide whether a warning
is required
.  [Emphasis added by Bastarache J.]

Provided there
is a foundation for the trial judges exercise of discretion, appellate courts
should not interfere.

[19]

While the
necessity of a warning is to be determined on a case-by-case basis, it should
be borne in mind, as Binnie J. noted in
Brooks
at paras. 130‑131,
that the
Vetrovec
warning serves to impart to jurors
the benefit of the judicial
experience
that
teaches that the evidence of particular witnesses should be approached with
caution. However,
where, as in the case at bar, the witness testimony is said to be suspect for
reasons that generally are not outside a jurys experience, the imperative to
give the warning may be attenuated. In my opinion, the nature of the conduct
said to make the witness unsavoury, and in particular, whether that conduct
is likely to be outside the jurys experience, is one of the factors to be
weighed by the judge in the exercise of her discretion.

[20]

Mr. Martin could certainly be considered unreliable, untrustworthy,
or tainted on the basis of the evidence considered during the
voir dire
.
However, the evidence of Mr. Martins involvement in the drug world was
not such that, as argued by the appellant, Mr. Martin should be seen as a
disreputable or untrustworthy witness requiring a
Vetrovec
warning. Instead, issues with regard
to Mr. Martins credibility could correctly be addressed in the charge to
the jury. In my opinion, the trial judge in this case did what
Vetrovec
and
Brooks
direct a trial judge to do: she directed
her
mind to the facts of the case, and examined all the factors that might impair
the credibility of the witness. For that reason, I would not accede to this
ground of appeal.

Evidentiary Rulings

Hearsay

[21]

The Crown witness called before Bradley Martin, Sgt. Joanne Skrine
of the RCMP, testified that she obtained a statement from Mr. Martin on
April 2, 2013 at the Kelowna General Hospital, where he was recovering
from a gunshot wound. The statement and a photo lineup were recorded on video. She
was asked in cross-examination by defence counsel if Mr. Martin said he
was convinced RCMP officers were conspiring against him. She said he had. She
was then asked if Mr. Martin claimed an RCMP officer who attended the
scene was dancing and skipping in front of him. The Crown objected on the
grounds the information sought was hearsay, related to a collateral matter and
would amount to evidence from Sgt. Skrine about Mr. Martins opinion on
another officers attitude and demeanour. Crown counsel argued that if the
accused sought to admit Sgt. Skrines evidence of the statements made by Mr. Martin,
the Crown would seek to play an unedited video record of Mr. Martins
hospital statement. Defence counsel withdrew the question.

[22]

When questioning resumed, defence counsel asked Sgt. Skrine about
her impression of Mr. Martins demeanour, which led to a further Crown
objection. Defence counsel then proposed that the video be played in full to
the jury. The court ruled that there was an inadequate evidentiary foundation
to permit the video to be played as a record of a prior statement by the
witness.

[23]

In the course of the submissions on this point, the judge noted defence
counsel had not provided a reason to admit the hearsay evidence of Sgt. Skrine
regarding Mr. Martins statement. In response, defence counsel submitted
that the evidence of Mr. Martins description of his interaction with the
police was not being adduced for the purpose of proving the truth of his
statements but, rather, to establish what he said, presumably to establish that
he was irrational and an unreliable witness. Defence counsel noted that Mr. Martin,
who had not yet testified, might claim not to remember making such statements
or deny making them, and if that were the case the defence would have lost the
opportunity to elicit this evidence. Further, counsel argued Mr. Martins
statements fell into the
res gestae
exception to the hearsay rule.

[24]

The judge ruled that Sgt. Skrines evidence of Mr. Martins statements
amounted to hearsay, and there was no necessity to admit the statements given
the availability of a videotape that might be put to the witness to impeach his
testimony if necessary.

[25]

Mr. Martin did later testify. In cross-examination he agreed that he
spoke to the police while in the hospital and made certain statements read to
him by defence counsel concerning drug use. He testified with respect to past
negative encounters with the police and about his recollection that a police
officer had blocked him from entering the ambulance at the scene of the crime, which
precluded him from receiving medical care. He further testified that the
officer directed that he should be tilted downward in the ambulance leaving the
scene. He was not cross-examined with respect to anything he said at the
hospital about the RCMP conspiring against him. The request to play the video
of the hospital interview was not renewed.

Medical Records

[26]

In cross-examination Mr. Martin denied the suggestion that he had mental
health problems about six months before the murders of which the appellant was
convicted. Defence counsel sought to show Mr. Martin a psychiatric
consultation in his medical records. When the Crown objected, defence sought to
have the records received in evidence as
prima facie
proof
of the facts recorded,

as records
made contemporaneously by someone having a personal knowledge of the matters
recorded and under a duty to record them
, relying on the description of
hospital records as such in
Ares
v. Venner
, [1970] S.C.R. 608. Defence argued that the medical records
were reliable; they had been disclosed prior to trial, the witness had been
questioned on them at the preliminary inquiry, and they went to the heart of a
credibility issue.

[27]

The judge did not make a ruling on the objection, but sought submissions
from defence counsel on whether the criteria for admissibility pursuant to
s. 30 of the
Canada
Evidence Act
,
R.S.C.
1985, c. C‑5, or under the common law exception to the hearsay rule,
had been met. Defence counsel was not prepared at that point to deal with the
issue of admissibility. The judge offered to stand down so counsel could
prepare submissions. More than once the judge later asked defence counsel how
the issue would be addressed and whether it might be resolved by putting the
diagnosis described in the records to Mr. Martin directly. Defence counsel
cross-examined Mr. Martin and, while he denied he ever had a mental
illness, he agreed he had seen a psychologist, and been admitted to a
psychiatric ward for three days. Later in the trial, defence counsel advised
the judge that the defence was no longer seeking admission of Mr. Martins
medical records.

[28]

There is, therefore, in my opinion, no basis on which to say the trial
judge ruled on an application to adduce medical records, much less erred in
doing so.

[29]

In my view, it cannot be said that the trial judge precluded defence
counsel from adducing evidence that might have been used to impeach Mr. Martins
credibility. The attempt to introduce evidence of Mr. Martins conduct in
the hospital was abandoned by defence counsel. The statements of Mr. Martins
defence counsel sought to introduce through Sgt. Skrine were ultimately
introduced through cross-examination of Mr. Martin himself. There is no
suggestion the appellants counsel sought to adduce any evidence from Sgt. Skrine
that was not admitted by Mr. Martin. In the result the ruling on the
hearsay objection was immaterial to the case of the defence. There is no merit
in this ground of appeal.

Confused Instructions

[30]

The judge provided a 117‑page charge to the jury. She
made several corrections to the instructions as they were read to
the jury and made further changes after the conclusion of the charge and
submissions of counsel. For the reasons set out below, I am of the opinion that
neither the individual corrections nor their global effect can be said to have
been so confusing as to undermine the verdicts in this case.

Corrections
Made While Reading the Charge


Section 229(c) of the Criminal
Code:

[31]

Shortly after reading to the jury a passage in
the written instructions that referred to s. 229(c) of the
Criminal
Code
(causing death while pursuing an unlawful object) the judge informed
counsel that she had intended to refer to s. 229(a) (causing death with
intent to cause death or intent to cause bodily harm). The judge corrected the
error orally and provided the jury with a copy of s. 229(a) to add to
their written materials.

[32]

This correction is relatively simple and
unlikely to have been confusing.

The Penalty
Provision

[33]

When reading a passage citing s. 239(1) of
the
Criminal Code
, the judge noted that the penalty provision had
erroneously been included. Section
239(1)
reads:

Every person who
attempts by any means to commit murder is guilty of an indictable offence and
liable

(a)
if a restricted firearm or prohibited firearm is used in the
commission of the offence or if any firearm is used in the commission of the
offence and the offence is committed for the benefit of, at the direction of,
or in association with, a criminal organization, to imprisonment for life and
to a minimum punishment of imprisonment for a term of

(i)
in the case of a first offence, five years, and

(ii)
in the case of a second or subsequent offence, seven years;

(a.1)
in any other case where a firearm is
used in the commission of the offence, to imprisonment for life and to a
minimum punishment of imprisonment for a term of four years; and

(b)
in any other
case, to imprisonment for life.

[34]

She advised the jury that the penalty provision (all
of s. 239(1) following the first two lines) was not applicable to their
task, and later re‑read s. 239(1) without the penalty provision, and
provided the jury with a replacement page setting out only the relevant portion
of s. 239(1):

Every person who
attempts by any means to commit murder is guilty of an indictable offence

[35]

This correction is also relatively simple and
unlikely to have been confusing. Similar corrections in
R. v. Weeds
,
[1993] O.J. No. 328, 18 W.C.B. (2d) 523 (Ont. C.A.)
; and
R. v. Meston
(1975), 28 C.C.C. (2d) 497 (Ont.
C.A.) were found not to have resulted in any substantial wrong or miscarriage
of justice.

Attempted
Murder

[36]

When reading the instructions, the judge
realized the charge suggested some task might remain for the jury if they found
the appellant not guilty of attempted murder (which might have been the case if
there had been a lesser included offence). She immediately corrected that
impression, simply saying that if they found the appellant not guilty of
attempted murder that should end their consideration of that charge, full
stop. They were instructed:

Unless you are satisfied beyond a reasonable
doubt that John Koopmans meant to kill Bradley Martin, you must find John
Koopmans not guilty. Your deliberations would be over.

If you are
satisfied beyond a reasonable doubt that John Koopmans meant to kill Bradley
Martin, you must go on to the next question.

[37]

She then recognized that the rest of the description of
the attempted murder charge required clarification. She removed a sentence suggesting
the jury would have little trouble finding that Mr. Martin was assaulted
with a firearm, but otherwise kept the instructions unchanged with respect to
the essential elements of the charge.
The jury was given a corrected
version of the charge with respect to attempted murder to replace pages in the
original instructions.

[38]

In my view, these changes and clarification also cannot be said to have
resulted in any confusion, substantial wrong or miscarriage of justice.

Subsequent Corrections

[39]

Further changes were made following submissions by counsel in relation
to the adequacy of the instructions, after the jury had retired and before
deliberations. The judge drafted written corrections of the description of some
evidence in the charge; corrected instructions with respect to two legal questions;
and modified the jury verdict sheets. The jury was simply given the corrections
and asked to insert them at the appropriate place in the written instructions.

[40]

The factual corrections were:

DNA Evidence

[41]

The written instructions initially referred to
the testimony of an expert with respect to the presence of blood in two places
on the appellants jeans. Accepting the submissions of counsel, the judge
corrected the description of the tests. The jury was given a replacement page
revising the relevant passages in the written charge.

The Handgun

[42]

The written instructions initially referred to
the appellants testimony that his .357 Ruger handgun was fired at a party in
2007. The Crown informed the judge that the gun was referred to in the evidence
as a Smith and Wesson. The jury was also given a replacement page to insert in
the written instructions correcting this error.

[43]

The corrections to the legal instructions were:

Attempted
Murder

[44]

There was a correction to the portion of the
instructions addressing the attempted murder charge. The written instructions initially
stated, at one point, that if the appellant assaulted Bradley Martin with a
firearm, this amounted to attempted murder. The Crown pointed out assault with
a weapon could constitute attempted murder only if the appellant had the
requisite intent to kill. The jury was given a replacement page to insert in
the written instructions correcting the relevant passage, to reflect that
submission. It is important to note, however, that the instructions from the
outset contained a description of both the
mens rea
and the
actus
reus
of attempted murder. The deleted words were an inapt summary that was
unnecessary to the charge. Its removal made the instructions clearer.

Offences Included
in Murder

[45]

Under the heading Intoxication and Intent, in
relation to the murder charges, the jury was instructed in writing that if they
accepted evidence of intoxication, the appellant would only have the intent
necessary for manslaughter. The Crown pointed out that there was no reference
in the charge to the definition of manslaughter. That was added and the jury was
given a four-page addition to the written charge describing the included
offences to first degree murder (second degree murder and manslaughter) and the
definition of manslaughter.

[46]

I agree with the Crowns submission that
the
jury evidently was not confused about the verdicts available to them, given
that they found the appellant not guilty on the two counts of first degree
murder but guilty of second degree murder.

[47]

There is no complaint with respect to the description
of the defence of intoxication in the original charge and the jury clearly
rejected that defence. It is difficult to see any evidence of confusion in the
verdict.

Verdict
Sheets

[48]

Last, the verdict sheets first given to the jury
did not permit the jurors to indicate if they found the appellant not guilty of
second degree murder or not guilty of manslaughter. The sheets they first
received for Counts 1 and 2 gave them the option to put an X under
either guilty or not guilty of first degree murder, but only guilty for
second degree murder and manslaughter. The judge acceded to the defence
submission that the sheets should properly permit the jury to indicate that the
appellant was not guilty of second degree murder and manslaughter. The jury was
given this oral instruction and received a corrected verdict sheet.

[49]

The need for this change was obvious and it
cannot have been confusing.

The Overall
Effect of the Corrections

[50]

Despite the fact that individual corrections were not in themselves
confusing, we must consider whether the instructions as a whole became so due
to the number and sequence of the corrections and the manner in which they were
made.

[51]

The role of this Court, when called upon to consider the adequacy of
instructions to a jury, has recently been described by Stromberg-Stein J.A.
in
R. v. Alexander
, 2015 BCCA 484; and repeated by
Frankel J.A. in
R. v. Hume
, 2016 BCCA 105; and by Harris J.A.
in
R. v. Robinson
, 2016 BCCA 192. In the words of
Stromberg-Stein J.A. in
Alexander
:

[110]    An appellate court, when reviewing a jury charge,
must consider the alleged error in the context of the charge and the trial as a
whole. A trial judge is allowed flexibility in instructing the jury. The
precise words used in the jury charge are a matter of discretion for the trial
judge and will depend on the circumstances of the case. It is the overall
effect of the instructions that matters:
R. v. Araya
, 2015 SCC
11 at para. 39.

[111]    An accused is entitled to a properly instructed
jury, not a perfectly instructed one. If perfection were the standard, no jury
charge would pass appellate review:
R. v. Jacquard
, [1997] 1
S.C.R. 314 at paras. 1‑2.

[112]    It is the trial judges
obligation to properly instruct the jury; however, it is expected that counsel
will assist the trial judge and identify aspects that may be problematic in the
charge. A failure to object to a jury charge is not determinative; however,
trial counsels position at trial is an important factor to consider when
evaluating complaints raised on appeal:
Jacquard
at paras. 35‑38;
R. v. Purchase
, 2015 BCCA 211 at paras. 3‑4.

[52]

The appellant submits that in this case the charge as a whole became
unclear through a lengthy and disjointed process of revision, insertion, and
further revision. The jury had initially been instructed that where written
instructions differed from those presented orally, the oral instructions should
be followed. The appellant says no instructions were given to the jury following
the corrections to reconcile this with the fact that the last instructions had
come in the form of written revisions without additional oral instructions.
There was no other explanation of the cause of the initial error or the
significance of the deletions, additions or changes. However, all of the
additions and changes to the charge were eventually read to the jury and formed
part of the oral instructions and the jury was instructed to ignore any
portions of the charge that were deleted or replaced. When changes had been
made during the course of the reading of the initial instructions, the jury had
been told by the judge that mistakes sometimes creep into a charge and
corrections are necessary. In my view, the jury was left with no uncertainty
with respect to what to make of those portions of the written charge replaced.
They were told to ignore the discarded parts of the charge and the new charge
was read to them, becoming the effective charge.

[53]

The appellant says it is troubling that the jury asked no questions
regarding these instructions, as it is impossible to determine what, if any,
confusion resulted from the manner of instruction. He argues that while it is
unclear exactly what impact this may have had on the verdict, it is not
possible to say with certainty that it had no impact.

[54]

It is the Crowns position that the revisions the judge made to the
charge would not have misled or confused the jury with respect to their
understanding of the issues they had to decide. None of the revisions would
have confused the jury on the main issue they had to determine, identity, as
the revisions did not touch on that issue.

[55]

In addressing this ground of appeal, I give some weight to the following
facts:

a)

Counsel were given an opportunity to make submissions with respect to
the initial charge and despite its length, have never suggested that the
charge, prior to the revisions, was confusing or unclear;

b)

After concluding her charge, and having made some corrections while reading
the charge, the judge invited counsel to make submissions. It was not suggested
at that time that the corrections made while the charge was being read were
confusing or unclear. Instead, further corrections were sought;

c)

The judge then made the revisions suggested by counsel by providing the
jury with written copies of the revisions;

d)

Neither counsel suggested the manner in which the changes were made  by
inserting pages in the written instructions  might cause confusion;

e)

When counsel suggested that all corrections should be read to the jury,
that was done;

f)

No counsel requested the judge to explain to the jury why the
corrections were being made;

g)

It is not now suggested there are any errors in the revised charge;

h)

The jury
deliberated for two days and did not ask any questions that would suggest they
were confused; and

i)

The
jury sought no clarification of the charge.

[56]

Although the instructions were long and required serial revision, I am
not persuaded, in the words used in
R. v. MacKay
, 2005 SCC 75,
that the instructions
mislead or
confused the jury or otherwise had an adverse impact on the fairness of the
trial. Here, as in
MacKay
at para. 2, 
the jury was
ultimately left with a clear understanding of its duty and adequate guidance as
to how it was to be discharged.

[57]

The corrections made in this case were effected in an attempt to ensure
the jury was properly instructed with a view toward doing justice. As pointed
out by Major J. in
R. v. Ménard
,

[1998] 2 S.C.R. 109

at para. 29: juries
are frequently recharged as a result of counsels submissions at the conclusion
of the judges instructions, and potentially fatal errors are often avoided in
this way. In my view, the difficult task of the trial judge should not be
rendered more difficult by constraining too tightly the judges ability to make
such revisions at the request of counsel.


Conclusion

[58]

I would dismiss the appeal.

The
Honourable Mr. Justice Willcock

I
agree:

The Honourable Mr. Justice Lowry

I
agree:

The
Honourable Mr. Justice Tysoe


