R. v. Flores (M.R.), 2011 ONCA 155

R. v. Flores (M.R.) (2011), 274 O.A.C. 314 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. FE.063

Her Majesty the Queen (respondent) v. Melvin Roberto Flores (appellant)

(C48550; 2011 ONCA 155)

Indexed As: R. v. Flores (M.R.)

Ontario Court of Appeal

MacFarland, LaForme and Watt, JJ.A.

February 28, 2011.

Summary:

The accused killed his girlfriend after she ended their relationship. He was charged with second degree murder. He claimed that he was provoked, drunk and did not mean to kill her, therefore, his crime was manslaughter, not murder. The jury convicted him of second degree murder. He appealed the conviction, asserting that the trial judge erred in the jury instructions by failing to provide a "rolled-up" instruction about the intent required for murder under s. 229(a) of the Criminal Code, failing to fairly review the evidence relating to the intent required for murder under s. 229(a), failing to fairly instruct the jury about how to assess the evidence and prior statements of the accused, and failing to fairly review the evidence relevant to the defence of provocation.

The Ontario Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial on the offence of second degree murder.

Criminal Law - Topic 1263

Murder - General principles - Intention - The accused killed his girlfriend after she ended their relationship - He was charged with second degree murder - He claimed that he was provoked, drunk and did not mean to kill her, therefore, his crime was manslaughter, not murder - The jury convicted him of second degree murder - The accused appealed, arguing that there were several deficiencies in the judge's final instructions on the mental element in murder (i.e., the trial judge did not review the direct evidence about the accused's state of mind) - The Ontario Court of Appeal refused to give effect to this ground of appeal - The trial judge was under no obligation to review all the evidence introduced at trial in his final jury instructions - The judge's evidentiary review was sufficient to ensure that the jury understood the essential features of the evidence that was relevant to the issues that they had to decide - The accused's trial counsel made no objection about any inadequacy of the evidentiary references included in the final instructions - See paragraphs 88 to 100.

Criminal Law - Topic 1265

Murder - General principles - Jury charge - General - [See Criminal Law - Topic 1263 ].

Criminal Law - Topic 1265.2

Murder - General principles - Jury charge - Second degree murder - [See Criminal Law - Topic 4350.4 ].

Criminal Law - Topic 4350.4

Procedure - Charge or directions - Jury or judge alone - Use of "rolled-up" charge - The accused killed his girlfriend after she ended their relationship - He was charged with second degree murder - He claimed that he was provoked, drunk and did not mean to kill her, therefore, his crime was manslaughter, not murder - The jury convicted him of second degree murder - The accused appealed, asserting that the trial judge erred by failing to provide an adequate "rolled-up" instruction about the intent required for murder under s. 229(a) of the Criminal Code to ensure that the jury did not compartmentalize the evidence and limit its consideration to the defences of intoxication and provocation only when the evidence was relevant to proof of the mental element required to make an unlawful killing murder - The Ontario Court of Appeal allowed the appeal on this ground - The court, adopting a functional approach to test the adequacy of the instructions, and considering them as a whole, concluded that the "rolled-up" instructions in this case were not adequate to bring home to the jury their obligation to consider the cumulative effect of the evidence, with a legitimate bearing on the prosecutor's proof of the fault element in murder, despite their rejection of any discrete defence to which that same evidence was relevant - See paragraphs 56 to 88 and 150 to 166.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally -The accused killed his girlfriend after she ended their relationship - He was charged with second degree murder - He claimed that he was provoked, drunk and did not mean to kill her, therefore, his crime was manslaughter, not murder - The jury convicted him of second degree murder - The accused appealed, arguing that the trial judge misdirected the jury on how to assess the accused's evidence and how to deal with prior statements of the accused - The Ontario Court of Appeal reviewed the jury charge and found no legal error in the trial judge's final instructions about jury use of the accused's evidence and out of court statements - While the trial judge's review of the essential features of the accused's evidence and prior statements, although not fatally flawed, was incomplete, and in some respects at least, unbalanced, the test of fairness was met - See paragraphs 101 to 127.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - [See Criminal Law - Topic 1263 ].

Criminal Law - Topic 4356

Procedure - Charge or directions - Jury or judge alone - Directions regarding intent or mens rea - [See Criminal Law - Topic 4350.4 ].

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - The accused killed his girlfriend after she ended their relationship - He was charged with second degree murder - He claimed that he was provoked, drunk and did not mean to kill her, therefore, his crime was manslaughter, not murder - The jury convicted him of second degree murder - The accused appealed, arguing the trial judge failed to fairly review the evidence relevant to the defence of provocation - The Ontario Court of Appeal reviewed the instructions and refused to give effect to this ground of appeal - See paragraphs 128 to 149.

Cases Noticed:

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 69].

R. v. Ménard (S.), [1998] 2 S.C.R. 109; 228 N.R. 100; 111 O.A.C. 1, refd to. [para. 69].

R. v. Jaw (S.G.), [2009] 3 S.C.R. 26; 393 N.R. 246; 464 A.R. 149, refd to. [para. 70].

R. v. Tennant and Naccarato (1975), 7 O.R.(2d) 687 (C.A.), refd to. [para. 71].

R. v. Leblanc (1985), 11 O.A.C. 315; 22 C.C.C.(3d) 126 (C.A.), refd to. [para. 71].

R. v. Parent (R.), [2001] 1 S.C.R. 761; 268 N.R. 372, refd to. [para. 72].

R. v. Gilling (S.M.) (1997), 101 O.A.C. 297; 117 C.C.C.(3d) 444 (C.A.), refd to. [para. 72].

R. v. Cudjoe (R.) (2009), 251 O.A.C. 163 (C.A.), refd to. [para. 72].

R. v. Fraser (P.) (2001), 151 O.A.C. 137; 56 O.R.(3d) 161 (C.A.), leave to appeal refused (2002), 294 N.R. 397; 171 O.A.C. 398 (S.C.C.), refd to. [para. 73].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 76].

R. v. Azoulay, [1952] 2 S.C.R. 495, refd to. [para. 93].

R. v. John, [1971] S.C.R. 781, refd to. [para. 93].

R. v. Cluett, [1985] 2 S.C.R. 216; 61 N.R. 388; 70 N.S.R.(2d) 104; 166 A.P.R. 104, refd to. [para. 93].

R. v. Demeter (1975), 10 O.R.(2d) 321 (C.A.), affd. [1978] 1 S.C.R. 538; 16 N.R. 46, refd to. [para. 94].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4, refd to. [para. 95].

R. v. Royz (E.), [2009] 1 S.C.R. 423; 388 N.R. 1; 251 O.A.C. 397, refd to. [para. 95].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 103].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 284; 225 Man.R.(2d) 146; 419 W.A.C. 146, refd to. [para. 113].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 113].

R. v. Minuskin (S.) (2003), 180 O.A.C. 255; 68 O.R.(3d) 577 (C.A.), refd to. [para. 114].

R. v. M.S. et al. (2008), 240 O.A.C. 229; 237 C.C.C.(3d) 85 (C.A.), refd to. [para. 114].

R. v. Polimac (M.) (2010), 262 O.A.C. 91; 254 C.C.C.(3d) 359 (C.A.), refd to. [para. 116].

R. v. Spence (S.A.) (2004), 191 O.A.C. 285; 73 O.R.(3d) 81 (C.A.), revd. [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150, refd to. [para. 116].

R. v. Humphrey (K.) (2003), 169 O.A.C. 49; 172 C.C.C.(3d) 332 (C.A.), refd to. [para. 116].

R. v. Tripodi, [1955] S.C.R. 438, refd to. [para. 137].

R. v. Salamon, [1959] S.C.R. 404, refd to. [para. 137].

R. v. Nahar (D.S.) (2004), 193 B.C.A.C. 217; 316 W.A.C. 217; 181 C.C.C.(3d) 449 (C.A.), refd to. [para. 138].

R. v. Haight (1976), 30 C.C.C.(2d) 168 (Ont. C.A.), refd to. [para. 138].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161, refd to. [para. 151].

R. v. Trochym (S.J.), [2007] 1 S.C.R. 239; 357 N.R. 201; 221 O.A.C. 281, refd to. [para. 151].

R. v. Gould (S.) (2008), 244 O.A.C. 176 (C.A.), refd to. [para. 160].

Authors and Works Noticed:

Watt, David, Ontario Specimen Jury Instructions (Criminal) (2005), generally [para. 74, footnote 1].

Counsel:

Brian H. Greenspan and Robin K. McKechney, for the appellant;

Benita Wassenaar, for the respondent.

This appeal was heard on August 31, 2010, before MacFarland, LaForme and Watt, JJ.A., of the Ontario Court of Appeal. The following decision was delivered, for the court, by Watt, J.A., on February 28, 2011.