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IN the SUPREME COURT of CANADA (On Appeal from the Court of Appeal of Alberta)

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IN the SUPREME COURT of CANADA (On Appeal from the Court of Appeal of Alberta) S.C.C. File No. 32912 IN THE SUPREME COURT OF CANADA (On Appeal from the Court of Appeal of Alberta) Between: MICHAEL ERIN BRISCOE Appellant (Respondent) - and - HER MAJESTY THE QUEEN Respondent (Appellant) FACTUM OF THE CROWN RESPONDENT ATTORNEY GENERAL OF ALBERTA PURSUANT TO RULE 42 OF THE RULES OF THE SUPREME COURT OF CANADA JAMES C. ROBB, Q.C. and HENRY S. BROWN, Q.C. TAMARA FRIESEN Cowling Lafleur Henderson LLP Appeals Branch, Alberta Justice Suite 2600, 160 Elgin Street 3rd Floor North Bowker Bldg. Ottawa, ON 9833 - 109 Street KIP lC3 Edmonton, AB Tel: (613) 233-1781 T5K 2E8 Fax: (613) 563-9869 Tel: (780) 427-5042 email: i~ewy.bro~vn@,~li~igs.c.om Fax: (780) 422-1 106 email: james.robb~gov.ab.ca Counsel for the Respondent Ottawa Agent for the Respondent ALEXANDER D. PRINGLE, Q.C. JEFFREY BEEDELL Pringle, Peterson, MacDonald & Bottos Lang Michener LLP Barristers & Solicitors Barristers & Solicitors 100 Street Place 300, 50 O'Connor Street 300, 10150 - 100 Street Ottawa, ON KIP 6L2 Edmonton, AB T5J OP6 Tel: (613) 232-7171 Phone: (780) 424-8866 Fax: (613) 231-3191 Fax: (780) 426-1470 email: jbeedellG$lanm~ichener.ca email: apringle($p&leandassociates.coin Counsel for the Appellant Ottawa Agent for the Appellant TABLE OF CONTENTS PAGE PART I: STATEMENT OF FACTS .................................................................................1 (0 Overview of Case .......................................................................................1 .. (11) Evidence at Trial ........................................................................................2 (a) Introduction .......................................................................................2 (b) Prior to leaving for the golf course ...................................................3 (c) Driving to the Golf Course ................................................................4 (d) At the Golf Course Fairway ..............................................................5 (e) The Appellant's Statement .................................................................7 (iii) Findings of Fact ....................................................................................10 PART 11: POINTS IN ISSUE ...........................................................................................12 PART 111: ARGUMENT ..................................................................................................12 Ground 1 ......................................................................................................... 12 (i) Standard of Review In Relation to the Three Grounds ...................12 (ii) Introduction and Overview ........................................................... 13 (iii) General Principles re Mens Rea and Concurrency ........................13 (iv) Parties ............................................................................................15 (v) Wilful Blindness ...............................................................................17 (vi) The Charge of Murder .....................................................................25 (a) Overview .................................................................................25 (b) Murder Elements ....................................................................26 (c) Manslaughter Elements ..........................................................27 (d) Application to Facts ofthe Case .............................................28 Ground II .........................................................................................................3 1 6) Introduction .....................................................................................31 (ii) Legal Elements ...............................................................................-32 (iii) Application to Case .........................................................................34 Ground III .........................................................................................................35 (i) Introduction .....................................................................................35 (ii) Aggravated Sexual Assault Elements .............................................-36 (iii) Application to tlze facts of the case ..................................................37 CONCLUSION ................................................................................................38 PART IV: SUBMISSION ON COSTS ..............................................................................39 PART V: NATURE OF RELIEF DESIRED ...................................................................39 PART VI: TABLE OF AUTHORITIES ............................................................................40 PART VII ARTICLES AND ANNOTATIONS REFERRED TO ....................................44 PART VIII LEGISLATION ................................................................................................44 PART I: STATEMENT OF FACTS (i) Overview of Case 1. This case concerns the luring of a 13 year old female victim to a dark and remote golf fairway by a group comprised of two adults (the Appellant, who was 34, and Laboucan) and three young persons (MW, SB, and DT). There she was raped, brutally assaulted and murdered. 2. The Appellant and Laboucan were tried jointly on 3 charges: first degree murder, (s. 235(1)); aggravated sexual assault (s. 273(2)(b)); and kidnapping (s. 279 (1 .l)(b)), Criminal Code of Canada. Laboucan was convicted, the Appellant acquitted, on all charges. Laboucan's convictions became the subject of a defence appeal with the Alberta Court of Appeal directing a new trial. That decision is now the subject of a further appeal to this court.' 3. The Appellant's acquittals were the subject of a Crown appeal, a separate panel of the Alberta Court of Appeal also ordering a new trial which brings us before this Court. At the Court of Appeal level, the Crown Appellant advanced four grounds of appeal: Ground 1 The trial judge erred in law by failing to consider the doctrine of wilful blindness, a valid form of mens rea for these offences. In the alternative the trial judge erred in law by failing to provide adequate reasons with respect to the application of that doctrine thereby preventing appellate review. Ground 2 The trial judge erred in law by examining individual pieces of evidence and subjecting them piecemeal to the criminal standard rather than considering the evidence as a whole. Ground 3 The trial judge erred in law by failing to properly explain the meaning of the phrase "seriously scare" used in the context of the Respondent's knowledge of what was to happen to the victim and accordingly his reasons are inadequate andprevent appellate review. Accompanying that error was his error of law in misdefining and misapplying the elements of the offence of manslaughter. Ground 4 The trialjudge erred in law in misdefining and misapplying the elements of the ofence of aggravated sexual assault. Or in the alternative he erred in law in applying the mistake of fact defence in relation to that offence when there was no air of reality to it. 4. The Court of Appeal dealt only with the first ground. Having concluded that a new trial was warranted on that ground, they found it unnecessary to deal with the remaining three.2 Therefore, the remaining three grounds are unresolved and must be addressed. 1 R. v. Laboucan, SCC Case No. 33010 * Alberta Court of Appeal, Reasons for Decision, Joint Record (JR), Vol. I, p. 8 1, para. 10 5. Wilful blindness was in issue at trial. The Crown posited that the victim was lured to a golf course just outside Edmonton to be sexually assaulted and killed. The plan was formulated by Laboucan but communicated to the others, including the Appellant who became responsible for the subsequent crimes, either as a principal, or as an aider andlor abettor pursuant to s. 21(b) and (c). It was argued that his knowledge of the plan and subsequent crimes committed could be proved either by a finding of actual knowledge or a finding of wilful blindne~s.~Appellant's counsel argued that wilful blindness was not a valid form of mens rea for murder, as a finding of actual knowledge was required, implying that wilful blindness could not withstand constitutional scrutiny.' The Crown replied in reb~ttal.~In his final decision, the trial judge did not address the issue. (ii) Evidence at Trial (a) Introduction 6. Evidence was provided chiefly by witnesses who were part of the group who lured the victim to the golf course, plus a young girl who had been similarly lured (KB). The Appellant did not testify, but two statements made by him were admitted at trial. One was a formal statement to the police, and the other a statement made to an undercover officer. The Appellant, commenting to the undercover officer about his own formal statement, said he only told 80% of the truth to the police, and was keeping 20% to him~elf.~ 7. The trial judge concluded that the Appellant was not a principal to the crimes committed and, therefore, if there was liability, it would be as a party. While concluding that four acts had been committed (to be more fully discussed below) by the Appellant that could make him a party, he acquitted on the basis that the Appellant lacked actual knowledge of the intentions of the other persons present and, therefore, lacked the requisite mens rea. Since knowledge and its relationship to the mental element is a key issue, it is necessary to provide more detail as to the evidence than that offered by the Appellant. There are three key periods of
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