R. v. Terrico (W.J.),

R. v. Terrico (W.J.) (2005), 214 B.C.A.C. 135 (CA);

    353 W.A.C. 135

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. JL.013

Regina (respondent) v. William Jay Terrico (appellant)

(CA031342; 2005 BCCA 361)

Indexed As: R. v. Terrico (W.J.)

British Columbia Court of Appeal

Newbury, Huddart and Lowry, JJ.A.

June 30, 2005.

Summary:

The accused was charged with the first degree murder of his father. The Crown alleged that the accused had hired a juvenile to carry out the murder for hire. The accused made statements to undercover police officers admitting to the crime during a sting operation. The officers posed as bikers involved in violent criminal activity who wished to recruit the accused. The trial judge admitted the statements and a jury convicted the accused. The accused appealed.

The British Columbia Court of Appeal dismissed the appeal.

Editor's note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4375

Procedure - Charge or directions - Jury or judge alone - Directions regarding incriminating statements by accused or co-accused - The accused made statements to undercover police officers during a sting operation in which he admitted that he hired someone to murder his father - The officers posed as bikers involved in violent criminal activity who wished to recruit the accused - The accused argued that the statements were unreliable because he had lied to these apparently violent criminals out of fear and greed - A jury convicted the accused - The accused appealed, arguing that trial judge erred in failing to instruct the jury specifically as to the "inherent unreliability" of the accused's admissions per R. v. M.C.H. (S.C.C.) - The British Columbia Court of Appeal rejected the argument - The jury was clearly instructed that the accused's statements could have been made out of fear or greed or both, and that his credibility and "motives to lie" were the central issues in the case - This was the effective or "functional" equivalent of the instruction in R. v. M.C.H. that the statements "might very well be unreliable or untrue." - The trial judge did not err in failing to use the specific words "inherently unreliable" or failing to instruct the jury that the accused's statements should be treated as not to be believed in the absence of corroborating evidence - See paragraphs 29 to 43.

Criminal Law - Topic 5350

Evidence and witnesses - Confessions and voluntary statements - Circumstances when warning required - [See Criminal Law - Topic 4375 ].

Criminal Law - Topic 5351

Evidence and witnesses - Confessions and voluntary statements - Confessions excluded due to prejudicial effect - [See Criminal Law - Topic 5353.1 ].

Criminal Law - Topic 5353.1

Evidence and witnesses - Confessions and voluntary statements - Statements to persons not in authority - The accused made statements to undercover police officers during a sting operation in which he admitted that he hired someone to murder his father - The officers posed as bikers involved in violent criminal activity who wished to recruit the accused - The accused argued that the statements were unreliable because he had lied to these apparently violent criminals out of fear and greed - The trial judge proceeded as if the hearsay rule was engaged, applied the analysis in R. v. Starr (S.C.C.) in determining the admissibility of the statements and admitted the statements - On appeal, the British Columbia Court of Appeal (Huddart and Lowry, JJ.A.) held that the Starr case was not applicable - A statement made by an accused to a person who was not in a position of authority was admissible as an admission against interest - The only analysis required of the trial judge was to weigh the probative value of the evidence against its prejudicial effect - There was no barrier to the admission of the statements - See paragraphs 45 to 51.

Evidence - Topic 1550

Hearsay rule - Hearsay rule exceptions and exclusions - Statements against interest - General principles - [See Criminal Law - Topic 5353.1 ].

Cases Noticed:

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [paras. 3, 45].

R. v. Grandinetti (C.H.) (2005), 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 191 C.C.C.(3d) 449; 2005 SCC 5, affing. (2003), 339 A.R. 52; 312 W.A.C. 52; 178 C.C.C.(3d) 449 (C.A.), refd to. [paras. 3, 48].

R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C. 97, refd to. [paras. 3, 45].

R. v. Fischer (P.D.) (2005), 212 B.C.A.C. 199; 350 W.A.C. 199; 2005 BCCA 265, refd to. [para. 3].

R. v. Calder (R.K.) (2004), 195 B.C.A.C. 260; 319 W.A.C. 260; 184 C.C.C.(3d) 269 (C.A.), refd to. [para. 3].

R. v. Henry (D.B.) et al. (2003), 186 B.C.A.C. 106; 306 W.A.C. 106; 179 C.C.C.(3d) 307 (C.A.), refd to. [para. 3].

R. v. Fliss (P.W.), [2002] 1 S.C.R. 535; 283 N.R. 120; 163 B.C.A.C. 1; 267 W.A.C. 1; 2002 SCC 16, refd to. [paras. 3, 48].

R. v. Holtam (D.J.) (2002), 168 B.C.A.C. 278; 275 W.A.C. 278; 165 C.C.C.(3d) 502 (C.A.), leave to appeal refused (2003), 317 N.R. 397; 201 B.C.A.C. 320; 328 W.A.C. 320 (S.C.C.), refd to. [para. 3].

R. v. McCreery (T.S.) (1998), 108 B.C.A.C. 161; 176 W.A.C. 161; 62 B.C.L.R.(3d) 1 (C.A.), leave to appeal refused (1998), 231 N.R. 399; 120 B.C.A.C. 319; 196 W.A.C. 319 (S.C.C.), refd to. [para. 3].

United States of America v. Burns and Rafay (1997), 94 B.C.A.C. 46; 152 W.A.C. 46; 117 C.C.C.(3d) 454 (C.A.), leave to appeal refused (1997), 225 N.R. 400; 109 B.C.A.C. 160; 177 W.A.C. 160 (S.C.C.), refd to. [para. 3].

R. v. Roberts (D.C.) (1997), 90 B.C.A.C. 213; 147 W.A.C. 213 (C.A.), refd to. [para. 3].

R. v. French (D.) (1997), 98 B.C.A.C. 265; 161 W.A.C. 265 (C.A.), refd to. [para. 3].

R. v. Moore (C.A.) (1997), 94 B.C.A.C. 281; 152 W.A.C. 281 (C.A.), refd to. [para. 3].

R. v. McIntyre (M.), [1994] 2 S.C.R. 480; 168 N.R. 308; 153 N.B.R.(2d) 161; 392 A.P.R. 161, refd to. [para. 3].

R. v. Wells (S.W.) (2003), 181 B.C.A.C. 271; 298 W.A.C. 271; 174 C.C.C.(3d) 301 (C.A.), refd to. [para. 16].

R. v. Sharp, [1988] 1 W.L.R. 7; 88 N.R. 47 (H.L.), refd to. [para. 20].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81, refd to. [paras. 21, 46].

R. v. Foreman (R.E.) (2002), 166 O.A.C. 160; 169 C.C.C.(3d) 489 (C.A.), leave to appeal refused (2003), 321 N.R. 397; 191 O.A.C. 398 (S.C.C.), refd to. [paras. 21, 49].

R. v. Mapara (S.) et al. (2005), 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 24].

R. v. Luc (S.Q.) (2004), 254 Sask.R. 98; 336 W.A.C. 98; 188 C.C.C.(3d) 436 (C.A.), refd to. [para. 28].

R. v. Carter (B.) (2001), 156 B.C.A.C. 255; 255 W.A.C. 255; 157 C.C.C.(3d) 165 (C.A.), refd to. [para. 32].

R. v. Forknall (P.C.) (2003), 176 B.C.A.C. 284; 290 W.A.C. 284; 172 C.C.C.(3d) 61 (C.A.), refd to. [para. 33].

R. v. Skiffington (W.W.) (2004), 197 B.C.A.C. 308; 323 W.A.C. 308; 186 C.C.C.(3d) 314 (C.A.), refd to. [para. 34].

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. 41].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 48].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 48].

Authors and Works Noticed:

Cross on Evidence (7th Ed. 1990), generally [para. 20].

McCormick, Charles Tilford, Handbook on the Law of Evidence (5th Ed. 1999), vol. 2, § 254 [para. 21].

Morgan, Edmund M., Basic Problems of Evidence (1962), pp. 265, 266 [para. 21].

Phipson, Sidney Lovell, The Law  of Evidence (15th Ed. 2000), p. 28-03 [para. 21].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), § 6.292 [para. 21].

Wigmore on Evidence (Chadbourn Rev. 1972), vol. 4, §§ 1048, 1049 [para. 21].

Counsel:

T. Arbogast, for the appellant;

J. Duncan, for the respondent.

This appeal was heard on May 6, 2005, at Vancouver, British Columbia, by Newbury, Huddart and Lowry, JJ.A., of the British Columbia Court of Appeal.

The decision of the Court of Appeal was delivered on June 30, 2005, when the following opinions were filed:

Newbury, J.A. - see paragraphs 1 to 44;

Huddart, J.A. (Lowry, J.A., concurring) - see paragraphs 45 to 52.