Supreme Court

CR 02080


IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES


BETWEEN:

HER MAJESTY THE QUEEN

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JAMES FOURNIER

REASONS FOR JUDGMENT

1  Severance of a count charging attempted murder from the four remaining counts of a six-count indictment is sought by the accused person in this application.  The sixth count, charging involvement in a riot, is severed already.  That was done by consent and as ordered by me at the hearing.  The present application is opposed by the Crown.

2  Of the four counts remaining if the attempted murder count is severed, two charge assault with a weapon and two charge mischief by wilful damage to property without lawful justification or excuse and without colour of right.

3  The charges all arise out of events occurring at the main gate to Giant Mine at Yellowknife on June 14th 1992.  All the events forming the alleged basis of these charges took place within about 15 minutes, between 7.10 p.m. and 7.25 p.m.  The events in question are said to have been recorded audio-visually at the time.  The Crown proposes to introduce that record into evidence at the trial of the accused.
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4  The attempted murder count was not included in the information before the Territorial Judge who heard the preliminary inquiry into the other charges.  That count was however included in the order made by him at the conclusion of the preliminary inquiry, requiring the accused to stand trial.  That was apparently done at the Crown's request, having regard to the evidence adduced during the preliminary inquiry.  No objection to that mode of proceeding is made, except to the extent that the accused now asks for a separate trial on the attempted murder count.

5  Section 239 of the Criminal Code provides a term of  life imprisonment as the maximum carceral penalty for attempted murder.  By comparison, this is potentially a much greater penalty than might be imposed for the other offences charged.  Assaults with a weapon carry a maximum carceral penalty of ten years imprisonment (leaving aside the possibility of a fine or other disposition).  Mischief of the kind charged in this case carries a maximum prison term of two years on conviction.  The accused invites the Court to sever the attempted murder charge if only because it is, on its face, in a class significantly different from the other charges, having regard to the potential penalty.

6  Section 589 of the Criminal Code restricts the nature of the other counts which may be joined with a charge of murder.  No such restriction has been made in respect to other counts charged jointly with a count of attempted murder.  On behalf of the accused, the Court is reminded that the mental element of the offence of attempted murder is no different than that of murder.  In charging the jury, the trial judge will be obliged to describe and discuss this mental element, which is different in several important respects from the  mental element of the other offences now charged jointly with the count of attempted murder.  It is the submission of counsel for the accused that this may give rise to confusion in the minds of the jury.  To avoid such confusion, the Court is urged to sever the attempted murder count in order that it may be separately tried by a different jury than will hear the other counts tried next week.

7  These points of difference between the attempted murder offence and the other offences charged are indeed significant.  They are, it seems to me, the strongest points made in support of this application.

8  In addition, it is argued on behalf of the accused that the inclusion of other counts of assault and mischief in the indictment, along with the count of attempted murder, will prejudice the accused in the eyes of the jury with reference to the latter more serious offence.  It is said that the evidence on those other counts will make the accused appear to the jury to be a person of a violent nature, all the more likely to have attempted to commit murder.

9  The evidence, as outlined for me by counsel at the hearing, may to some extent support that argument.  But it is also capable of supporting a counter-argument.  Given that the accused is said to have threatened to kill a security guard other than the alleged victim of the attempt charged, only minutes at most before the alleged attempt at murder, evidence of that earlier threat, which was not carried out, might well persuade the jury that the accused only intended to intimidate the guards, or might at least raise a reasonable doubt on that point, and they might well find that he had no intent to kill anyone, or, at least, that they have a reasonable doubt as to that intent.  Similarly, evidence of a further assault by the accused on the alleged victim of the attempt charged (in the course of which the alleged victim was injured, but not so seriously as to warrant anything more serious than a charge of assault with a weapon), once again within minutes of the attempt charged, may once again raise a reasonable doubt in the minds of the jury as to the accused having any intent to kill, or to cause injury resulting in death, as required to support a guilty verdict on the attempted murder count.

10  Given the evidence, as outlined by counsel, it does not seem to me that there is any merit in severing the attempted murder count from the two assault counts in the indictment, since the evidence on those counts is relevant to the count of attempted murder, more particularly the intent of the accused at the time of the events directly relating to that count.  Moreover, any prejudice to the accused by the evidence relating to the two assault charges is offset by the significance which that evidence may have for an assessment by the jury of his actual intentions during the entire period of some 15 minutes during which the events giving rise to all five counts remaining in the indictment are said to have taken place.  This includes the events giving rise to the mischief counts in the indictment.

11  While inclusion of the attempted murder count with the other counts in the indictment will add to the burdens of the trial judge, when instructing the jury, and will require the jury to understand the difference between the mental element required to constitute the offence of attempted murder and that for the other offences charged, that is not in my mind determinative of the question before the Court.  Nor do I consider the relative seriousness of the attempted murder offence charged, in comparison with the other counts remaining in the indictment, to be determinative of that question.

12  Outweighing those considerations, in my respectful view, is the interconnectedness of the events giving rise to all five of the remaining charges, forming a series of incidents closely intertwined with one another, so that none of the incidents taken separately can be properly evaluated without reference to the others.  Each incident will have to be viewed in the context of the others, especially when it comes to an assessment of the accused's intent during the events giving rise to the attempted murder count.

13  Counsel for the accused has drawn my attention to the cases of R v. King, (1897) Q.B.D. 214; R. v. Southern (1930), 22 Cr.App.R.6; and R. v. Carless and Stapley (1934), 25 Cr.App.R.43.  In the first and last of these cases there was a multitude of counts  in the indictment which, of itself, was held to be unfair to the accused.  There were 40 counts in the first case and 25 counts in the last.  Here we are concerned with only 5 counts.  And no objection is taken to that number in itself.  Furthermore, the offences charged all arise out of a closely interconnected series of events occurring within a span of 15 minutes.  In R. v. Southern the alleged offences were said to have occurred on different dates.  That is not the situation here.

14  Counsel for the Crown relies on R. v. Legebokoff and Legebokoff (1981), 64 C.C.C. (2d) 499, a decision of the Saskatchewan Court of Appeal, for the importance of joint trial where the offences charged are closely interconnected, as in the present case.  In that case the court held that counts of rape and attempted murder, which had been severed by the trial judge, should have been tried together on one indictment.  Crown counsel also referred to R. v. Simpson (1977), 35 C.C.C. (2d) 337, (Ont.C.A.); R. v. Comeau (1973), 14 C.C.C. (2d) 472 (N.S.S.C., App.Div.); and R. v. Foll (1957), 118 C.C.C. 43 (Man.C.A.).  I do not think that I need do more than remark that these authorities support the Crown's position, which is that this is not an appropriate case, on its facts, for severance of the attempted murder count.

15  The application is therefore dismissed.





   M. M. de Weerdt
        J.S.C.


Yellowknife, Northwest Territories
 September 3, 1993