DATE: 20010626
DOCKET: C29466

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and– TERRENCE ROBICHAUD (Appellant)

BEFORE: McMURTRY C.J.O., CATZMAN and CHARRON JJ.A.

COUNSEL: Keith E. Wright, for the appellant

Renee Pomerance, for the respondent

HEARD: June 21, 2001

RELEASED ORALLY: June 21, 2001

On appeal from the conviction imposed by Justice Edward F. Then, sitting with a jury, dated June 28, 1997.

E N D O R S E M E N T

[1] This is an appeal from the appellant’s conviction for second degree murder, following trial before Then J. and a jury. Mr. Wright’s submissions on behalf of the appellant were grouped under four principal headings, set out below substantially in the form in which they were expressed in his factum.

[2] First, that the trial judge erred in permitting the Crown to lead the expert evidence of Patricia Newall relating to the significance of finding foreign DNA under the fingernails of the deceased. We agree with Crown counsel that the evidence of Ms. Newall and the use to which it was put in this case met the analysis set out in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9. In the recent decision of R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, on which Mr. Wright placed much reliance, Binnie J. observed (in para. 61) that the Mohan analysis reposes a good deal of confidence in the trial judge’s ability to discharge the gatekeeper function, and that his discharge of that function is entitled to a high degree of respect. The appellant’s defence was based partly on the supposition that, if the DNA under the deceased’s fingernails was his, it could have been transferred through casual conduct or during the theft of her jewellery. It was open to the Crown to rebut this aspect of the defence by demonstrating that transference of DNA under fingernails does not commonly occur, and Ms. Newall was qualified to furnish this testimony. The fact that part of the foundation for her evidence constituted hearsay did not preclude its admissibility. The basis for her opinion was simple to understand and was fully canvassed during the course of her testimony. We are not persuaded that the trial judge erred in admitting the evidence of Ms. Newall concerning the frequency with which foreign DNA is detected underneath fingernails or in the careful instructions he gave the jury to assess critically the weight they chose to attach to all of the expert opinions presented before them and the specific caution he gave to the jury with respect to the DNA evidence that Ms. Newall had given.

[3] Second, that the trial judge erred in instructing the jury that the admission of the appellant (who was not a witness at the trial) that he stole jewellery from the deceased could be used by them in the assessment of the credibility of his statements to the police. Despite the fact that the appellant did not testify, his credibility as a declarant was clearly an issue at trial, and his admission of dishonesty by reason of the theft of the deceased’s jewellery was relevant to the jury’s assessment of his credibility. We see no error in the trial judge’s instruction to the jury on this issue.

[4] Third, that the trial judge erred in effectively prohibiting the appellant from leading evidence of the disposition for violence of Charles Schroeder. If accepted, the propositions put forward by Mr. Wright under this heading would have permitted the appellant to present an entirely distorted picture to the jury. The position advanced by Mr. Wright is not supported by authority and, indeed, runs counter to the view expressed by this court in R. v. Parsons (1993), 1993 3428 (ON CA), 84 C.C.C. (3d) 226 and R. v. Rodgers (2000), 2000 2144 (ON CA), 144 C.C.C. (3d) 568. The trial judge did not err in making the ruling he did.

[5] Fourth, that the trial judge failed to instruct the jury adequately with respect to the defence of drunkenness and the evidence in support of that defence. At trial, experienced defence counsel – whose position was that the appellant did not kill the deceased, not that he did so under any theory of diminished responsibility – specifically disavowed the defence of drunkenness. Having regard to evidence given by a number of witnesses regarding the appellant’s apparent condition at the relevant times, the trial judge, properly in our view, felt obliged to charge the jury on the defence of drunkenness. He did so in a manner that put the issue before the jury without diminishing the force of the defence position. We find no error in the way in which the trial judge charged the jury on this subject.

[6] Accordingly, the appeal is dismissed.

Signed: “R. Roy McMurtry C.J.O.”

“M.A. Catzman J.A.”

“Louise Charron J.A.”