R. v. Allen, [2003] 1 S.C.R. 223, 2003 SCC 18
Derrick Gordon Allen Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Allen
Neutral citation: 2003 SCC 18.
File No.: 29034.
2003: March 21.
Present: Iacobucci, Major, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for newfoundland and labrador
Constitutional law — Charter of Rights — Self‑incrimination
— Accused charged with second degree murder — Crown cross‑examining
accused on his prior testimony given at trials of other person involved in
murder – Trial judge erring in permitting cross‑examination — Canadian
Charter of Rights and Freedoms, s. 13 .
Criminal law — Parties to offence — Second degree
murder — Charge to jury — Trial judge not adequately instructing jury on
s. 21(1) of Criminal Code, R.S.C. 1985,
c. C‑46 .
Cases Cited
Applied: R.
v. Noël, [2002] 3 S.C.R. 433, 2002 SCC 67.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
s. 13 .
Criminal Code, R.S.C. 1985, c. C‑46,
s. 21(1) .
APPEAL from a judgment of the Newfoundland and Labrador
Court of Appeal (2002), 208 Nfld. & P.E.I.R. 250, 624 A.P.R. 250, 93 C.R.R.
(2d) 55, [2002] N.J. No. 11 (QL), 2002 NFCA 2, upholding the accused’s
conviction for second degree murder. Appeal allowed.
Derek Hogan, for the
appellant.
Pamela Goulding, for
the respondent.
The judgment of the Court was delivered orally by
1
Iacobucci J. —
Mr. Hogan, it is not necessary to hear from you. The Court is ready to
pronounce judgment. Before doing so, the Court wishes to thank
Ms. Goulding for her helpful submissions. Ms. Goulding, you
could not have done more. The Court looks forward to your next appearance.
2
The appeal raises two issues: (1) whether the trial judge
correctly instructed the jury in respect of s. 21(1) of the Criminal
Code, R.S.C. 1985, c. C‑46 , and (2) whether the trial judge
erred in law in permitting the Crown to cross‑examine the appellant in
respect to his prior testimony in the trials of Mr. Cousins.
3
Although the trial judge’s initial directions to the jury on
s. 21(1) when taken as a whole were adequate, we conclude, substantially
for the reasons of O’Neill J.A., dissenting in the Newfoundland and
Labrador Court of Appeal ((2002), 208 Nfld. & P.E.I.R. 250, 2002 NFCA 2),
that the trial judge did not answer the jury’s question with the clarity and
comprehensiveness required by the applicable jurisprudence, thus giving rise to
the possibility that the appellant was convicted by a jury that did not have an
adequate understanding of the law on parties.
4
With respect to the second issue, our Court’s recent decision in R.
v. Noël, [2002] 3 S.C.R. 433, 2002 SCC 67 (which the trial judge
and the Court of Appeal did not have the benefit of), dealt with cross‑examination
of an accused in respect of prior testimony in the light of s. 13 of the Canadian
Charter of Rights and Freedoms . Noël held that s. 13 of
the Charter provides that, when an accused testifies at trial, he or she
cannot be cross‑examined on prior testimony unless the trial judge is
satisfied that there is no realistic danger that the prior testimony could be
used to incriminate the accused. Applying that test to this appeal, we are of
the view that the trial judge erred in permitting cross‑examination of
the appellant by the Crown with respect to the appellant’s prior testimony,
some of which included that he stated that he killed or thought he killed the
victim, and that he stated that he held the murder weapon to his throat shortly
after the murder. The Crown properly conceded that some of the questions were
incriminating. In that connection, we see no basis to distinguish this case
from that of Noël.
5
Accordingly, we would allow the appeal, set aside the judgment of the
Newfoundland and Labrador Court of Appeal, and set aside the conviction and
order a new trial.
Judgment accordingly.
Solicitor for the appellant: Derek Hogan, St. John’s.
Solicitor for the respondent: Department of Justice, St.
John’s.
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