Canada's Court: Oral Arguments from the SCC

After judge alone trial, the appellant, Buddy Ray Underwood, was convicted of robbery, kidnapping, unlawful confinement and murder. The trial judge acquitted the appellant of first degree murder but entered a conviction for the included offence of second degree murder instead. The Crown appealed the acquittal.
The Court of Appeal unanimously allowed the Crown’s appeal, quashed the acquittal on first degree murder and substituted a conviction for first degree murder. First, the court agreed with the Crown that the trial judge erred in law in his analysis of constructive first degree murder by narrowing the causation analysis to focus exclusively on the direct medical cause of death. Second, the court concluded that the trial judge erred in law by misapprehending the time frame for assessing planning as well as the meaning of “planned” more generally.
Mr. Underwood appealed to the Supreme Court of Canada as of right.

The central issue in this case is whether or not the appellant committed an assault in 1978, under s. 244 of the Criminal Code as it then was. R.A. had confessed to police that when he was babysitting the complainant, who was 5 years old at the time, he was caught masturbating by her as she stood in the doorway of the bathroom. He asked the complainant if she wanted to lick his penis by telling the complainant it was ice cream and she did so for a mere moment. After this brief encounter, R.A. told police he asked the complainant to leave and to not tell anyone— he then threw up in the toilet realizing what he had done. He was charged with committing an indecent assault on the complainant, contrary to s. 149 of the Criminal Code that was in force at that time.
The provincial court judge acquitted the accused on the basis that an assault, under then s. 244 of the Criminal Code, had not been made out because, as required by the section, there had been no direct, intentional application of force to the complainant and no attempt or threat by an act or gesture to apply force to the complainant.
The British Columbia Court of Appeal unanimously set aside the acquittal, and found that any contact between a child and an adult that is made in a circumstance of a sexual nature satisfies the requirements for a finding of guilt. The matter was sent back to the provincial court for sentencing. The central issue that remains for the appellant R.A. is whether his admitted contact with the complainant meets the definition of s. 244.

At that time, s. 244 read:
244. A person commits an assault when
(a) without the consent of another person or with consent, where it is obtained by fraud, he applies force intentionally to the person of the other, directly or indirectly;
(b) he attempts or threatens, by an act or gesture, to apply force to the person of the other, if he has or causes the other to believe upon reasonable grounds that he has present ability to effect his purpose; …

Ce c’est l’affaire judiciaire de Maxime Chicoine-Joubert contre sa majesté le roi.
Cette affaire est une qui est allée à la Cour suprême du Canada. Cela implique un meurtre au deuxième degré et une agression armée.
L'appel portait sur la question des instructions données au jury, qu'elles soient exactes, inexactes ou incomplètes.
Mr. Chicoine-Joubert a soutenu que le juge avait commis une erreur en donnant des instructions au jury concernant l'accusation d'homicide involontaire, en particulier en répondant aux questions du jury, le juge ayant omis de mentionner la mens rea nécessaire.
Au Cour d’appel du Québec, l’appel a été rejeté. La majorité soutient que les directives au jury étaient correctes. La dissidence a suggéré que le juge n'avait pas répondu de manière adéquate aux questions du jury concernant la mens rea requise pour meurtre au deuxième degré, ce qui a entraîné une possibilité raisonnable que les jurés aient mal compris.
Le juge dissident a convenu que les instructions initiales ne contenaient aucune erreur, c'est lorsque le jury a posé des questions que celles-ci n'ont pas reçu de réponse correcte ou exhaustive. Plus précisément, c’était argué qu’il n'a pas donné d'instructions aux jurés sur l'homicide involontaire, aussi il ne leur a pas non plus donné d'exemple. Cependant, l’appel été rejeté.
Lorsque cette affaire a été portée devant la Cour suprême du Canada, celle-ci a rejeté l'appel, confirmant la condamnation. Bien qu'un seul juge; Juge Jamal, a accepté la dissidence, la majorité a donné raison à la cour d'appel du Québec.

At trial where the central issue was whether or not the complainant had consented to sexual activity with the accused, the jury found the accused not guilty of sexual assault.

The Crown appealed, citing what they believed to be two errors. First: The Crown argued that the trial judge had been too extreme in restricting what text messages between the accused and the complainant could be used at trial. Second: the Crown argued that the trial judge had improperly allowed the defence to illicit evidence of prior sexual activity of the complainant. The trial judge reasoned that this evidence was relevant to an inconsistency between the complainant’s evidence at trial, and her statement to police. The Crown maintained the evidence did not produce an inconsistency.

A majority of the Court of Appeal found that the while the judge perhaps should have not have restricted the use of the text messages to that extent, the restrictions were a reasonable use of the trial judge’s powers to manage the trial, so a new trial was not warranted. The Court of Appeal also found that the evidence of prior sexual activity was properly allowed at trial, and was properly left with the jury to consider it as an inconsistency—despite the restriction by the trial judge that the Crown was not allowed to question the complainant about the inconsistency. The Crown’s appeal was dismissed. The dissenting judge at the Court of Appeal agreed with the Crown, and would have ordered a new trial.

Mr. Bilodeau was convicted by a jury as a party to manslaughter per s. 21(2) of the Criminal Code of Canada, after he directed his eldest son to bring a firearm to the scene. The eldest son followed his father’s directions, and upon his arrival, fatally shot the two victims.
Mr. Bilodeau had chased the two victims in his truck, after he saw the two men, who were also in a truck, stop in front of his home. Mr. Bilodeau believed them to be thieves. At the end of the chase, the two trucks came to a stop near a T-intersection, where one of the two victims broke one of Mr. Bilodeau’s truck windows and began punching Mr. Bilodeau. The shooter, Mr. Bilodeau’s eldest son, arrived on scene and shot both victims, fatally. The eldest son was convicted of second-degree murder and manslaughter.
Mr. Bilodeau appealed his conviction, citing errors in the jury’s instructions on the issue of whether or not Mr. Bilodeau formed a common intention with his son to commit an unlawful act. An unlawful act, which, in order to convict, must be one that the accused knew, or ought to have known was a probable consequence of the common intention. In other words, the path to conviction for Mr. Bilodeau rested on whether or not he knew, or ought to have known, that either of the victims could have been killed by instructing his son to bring a firearm to the scene of the altercation.
A majority of the Alberta Court of Appeal found that while there were errors in the jury instructions, many of them actually benefited Mr. Bilodeau. A dissenting judge would have allowed the appeal, and would have ordered a new trial.