Justice and Freedom for John Moore

Please Endorse This Statement

2010-02-21T14:46:00.000-08:00

(la version française suit...)

Justice and Freedom for John Moore is a committee supporting an innocent indigenous man's struggle for justice and freedom in Canada. We are asking organizations and prominent individuals from across Canada to endorse this statement supporting John's demand for a review of his unjust second degree murder conviction:

John C. Moore, an Ojibway man from Serpent River First Nation, was convicted of second degree murder in 1978. This happened despite the fact that he was not present when the crime was committed and had no role whatsoever in perpetrating it, and was based solely on him having spent time earlier that day with the individuals who committed the crime. His trials were tainted with systemic racism. The law under which he was convicted was ruled unconstitutional in 1987, and noone would be convicted under similar circumstances today. Yet Moore continues to bear the burden of the stigma of this conviction. He must regularly report to a parole officer and must ask permission if he wishes to leave the city of Sudbury, Ontario, which is impeding his freedom of movement and his capacity to find meaningful work. For all of these reasons, and in recognition of the long history of indigenous people being targeted unfairly by the Canadian justice system, we, the individuals and groups listed below, call upon the Government of Canada to conduct a review of Moore's conviction.

Before you get in touch with us to add your name or the name of your organization, you may wish to read the following:

a more detailed letter describing our request for support;
a message from John;
a message from Glenn Thibeault, NDP Member of Parliament for Sudbury, in support of John;
a message from John's lawyer, Denis Michel;
an up to date list of organizations and individuals that have already signed on to the statement above -- the list continues to grow, so please check back from time to time.
A mini video documentary about John's case by Ottawa-based filmmaker Samantha Pollock.
A FaceBook group Justice for John Moore! Please join!

If you have read these things and wish to add your voice to those calling for justice and freedom for John Moore and for other people struggling against Canada's racist judicial system, or if you wish more information, please email John at johnpower1955@hotmail.com or members of the support committee at sudburyawo@gmail.com. You can also get in touch with us by mail at Justice and Freedom For John Moore, c/o Glenn Thibeault, MP, 40 Elm Street, Suite 102a, Rainbow Centre, Sudbury, ON, P3C 1S8.

Veuillez signer la pétition ci-dessous

Justice et liberté pour John Moore est une comité de soutien à la lutte d'un autochtone innocent pour justice et liberté au Canada. On invite des organisations et des individus bien connus dans les communautés partout au Canada à signer cette pétition en appui de la demande de John pour une révision de sa condamnation injuste de meurtre au 2e degré.

John C. Moore, Ojibwé originaire de la Première Nation de Serpent River, a été accusé de meurtre au 2e degré en 1978. Pourtant M. Moore n'était même pas dans les lieux du crime et n'a joué absolument aucun rôle dans son exécution. La condamnation était basée sur le seul fait que plus tôt dans la journée il s'était trouvé dans la compagnie de ceux qui plus tard commettraient le crime. Ses procès étaient imprégnés de racisme systèmique. M. Moore a été condamné en vertu d'une loi déclarée inconstitutionnelle en 1987, dans une cause ultérieure, et les mêmes circonstances aujourd'hui ne pourraient conduire à une déclaration de culpabilité. Toutefois, sa condamnation injuste continue à ce jour à peser lourdement sur lui. Il est tenu de se présenter de façon régulière à son contrôleur juridique et ne peut quitter la ville de Sudbury, en Ontario sans autorisation. Ces restrictions entravent ses déplacements à l'extérieur de la ville et ses possibilités d'emploi. Pour toutes ces raisons mentionnées et en reconnaissance de la longue histoire du traitement injustice des peuples autochtones par le système de justice du Canada, nous, soussigné(e)s appellons le gouvernement du Canada à ordonner une révision de la condamnation de John.

Avant de contacter le comité de soutien pour ajouter votre nom ou le nom de votre organisation à la liste, vous aimeriez peut-être consulter les documents suivants:

une lettre plus détaillée appelant a l'appui;
un mot personnel de John;
une lettre d'appui de Glenn Thibeault, député néo-démocrat de Sudbury;
une lettre d'appui de Denis Michel, avocat de John;
une liste mise à jour régulièrement des groupes et des indvidus qui ont déjà signé;
un mini vidéodocumentaire par Samantha Pollock, documentariste basée à Ottawa.
ou rejoignez John sur FaceBook Justice for John Moore!

Pour ajouter votre nom à ceux des gens demandant la justice et la liberté pour John Moore et en solidarité avec la lutte contre le système de justice raciste au Canada, ou pour plus de renseignements, veuillez communiquer avec John à johnpower1955@hotmail.com ou le comité de soutien à sudburyawo@gmail.com . Vous pouvez rejoindre le comité aussi en écrivant à: Justice et liberté pour John Moore, aux soins de Glenn Thibeault, député, 40 rue Elm, suite 102a, Rainbow Centre, Sudbury (Ontario) P3C 1S8.

Two Audio Interviews With John Moore

2009-10-17T19:20:00.000-07:00

Please check out these radio interviews done with John by Dee Blues of The Prison Radio Show on CKUT 90.3 fm based in Montreal.

The first is from December 2010, and the second from June 2011. The files are in MP3 format.

If you are on FaceBook, you can become a fan of The Prison Radio Show by clicking here. You can also email the show at prison(AT)ckut.ca.

Association gives renewed hope to man fighting to clear his name

2009-10-16T19:47:00.000-07:00

Association gives renewed hope to man fighting to clear his name
by Doug Milroy, from The Sault Star, May 21, 2011.

John Moore, who bills himself as "an innocent aboriginal man fighting for justice and freedom in Canada since 1978," may possibly have found a formidable ally.

The Association in Defence of the Wrongly Convicted (AIDWYC) has decided to review his case.

Moore was convicted of second-degree murder in the slaying of cab driver Donald Lanthier in 1978, even though he was not at the scene. Crown Attorney Norman Douglas convinced a jury that, because Moore had associated with Gordon Stevens and Terry Hogan, the actual killers, earlier in the day, he knew or ought to have known a robbery with possible dire results was going to take place.

Knew or ought to have known, strange as it may seem now, was a law that was in the Criminal Code of Canada at the time.

It was found faulty and removed from the Criminal Code after the Supreme Court of Canada upheld the 1987 appeal of Yvan Vaillancourt, who was actually at the scene when his accomplice shot and killed a man during a robbery at a pool hall.

Ironically the Supreme Court, for reasons that remain

known only to its members, dismissed Moore's similar appeal three years earlier.

AIDWYC became involved in Moore's case after a friend of his, Ritchy Dube, emailed it on March 14 asking if there was "any reason why your organization is not behind the John Moore case, the aboriginal man from Sudbury convicted of murder under an old law. Surely his case merits advocacy and support. He is garnering lots of support, so it is puzzling why you are not involved. Any words?"

AIDWYC replied to Dube the same day it received his email. Win Wahrer, director of client services, told Dube that Moore had contacted the association several years ago, but attempts to get in touch with him were unsuccessful.

As it cannot look at a case until an individual requests it do so, it sent along an application form for Moore to fill out.

Having now received the formal request, Wahrer has asked Moore for "all documents relevant to your case but not limited to the following:

"Preliminary transcripts, trial transcripts, appeal factums (both Crown and defence), expert opinions/reports, investigative reports/notes, witness statements (including any statements you made to police), documentation of fresh evidence.

"Once your case file has been received, we will begin the process of assigning your case to a volunteer case reviewer, whose job it will be to review your case on behalf of AIDWYC."

AIDWYC's involvement has given renewed hope to a man who has been fighting, to no avail to this point, to clear his name since he was released from prison in 1987.

The amount of paper he has distributed in fighting the justice system has to be approaching a ton. In one photograph in a Sudbury newspaper he is shown dropping three large boxes of files on former MP Diane Marleau's desk. I have, or did have until some recent weeding, a stack of material about 40 centimetres high.

When laws are overturned, those convicted under the law as it stood receive no benefit. They have to live with whatever sentence they received.

I don't think this is fair. I believe anyone convicted under such a law should at least have his or her case reviewed. If the decision would have come out the same as in Vaillancourt, then the record should be cleared.

Moore will have to report to a parole officer for the rest of his life because he was convicted of a crime for which he wouldn't even be charged today.

That isn't right.

MOORE FACES another ongoing battle, one to this point he has been winning.

Tim Lanthier, the brother of Donald Lanthier, has been attempting to sway the parole board into preventing Moore from even visiting Sault Ste. Marie to see his mother.

Moore had provided me with typewritten letters he said had been copied from correspondence he had had with Lanthier in 1984. In one, Lanthier is purported to have said he forgave Moore, who replied that he couldn't accept his forgiveness as he had done nothing to be forgiven for.

Moore also said Lanthier visited him in prison and in one of the letters Lanthier is purported to have said he enjoyed the visit and would be coming back.

I phoned Lanthier to see why he had since changed his mind about Moore.

To my surprise, he denied ever writing to Moore or visiting him in prison.

"You didn't write him letters when he was in jail?" I asked again.

"No," he said. "The thing is, he was involved in murder of my brother. He denies he was involved. Has never taken ownership for the part he played, so as far as I am concerned he is guilty as sin.

"I don't want him anywhere near me. I am very active in my community and I don't want to be running into him.

"I don't want him in town and will do anything I can to keep him out of town."

To that end Lanthier earlier this year submitted a victim impact statement to the parole office in Sudbury, telling it about the effect his brother's slaying had had on the Lanthier family.

In a report in October 2009, the office said Moore " demonstrate overall positive community functioning with no critical identified needs or concerns."

It said Moore has no special conditions attached to his full-parole release as he has been in the (Sudbury) community for many years, maintaining pro-social community functioning.

It is this record that has enabled him to continue his visits to the Sault despite any intervention from an outside party.

But I do have some further checking to do in regard to Lanthier's claim that he never wrote or visited Moore.

We should stop punishing those who couldn't be convicted today

2009-10-14T15:47:00.000-07:00

We should stop punishing those who couldn't be convicted today
by Doug Milroy, from The Sault Star, January 2011.

For those of you who believe anyone convicted of murder, no matter how tenuous the circumstances, should be punished for the rest of his or her life, you will like this one.

As I have detailed in this space many times, John Moore was convicted of second-degree murder in 1978 even though evidence showed he was not present when cab driver Donald Lanthier was slain by Gordon Stevens and Terry Hogan in a ravine off Third Line in 1978.

He was convicted on the basis of a law, declared ultra vires in 1987 and therefore no longer applicable in the Criminal Code of Canada, that "he knew, or ought to have known," that Stevens and Hogan were planning to commit an armed robbery as he had been in their company earlier in the day.

Moore, who served 10 years in prison, has always maintained his innocence and has been battling with the justice system for years to get his sentence overturned, but lately to at least get some relief from his life-time parole.

If you wonder why such relief is important to Moore, consider the "instruction" from the Correctional Service of Canada (Parole), the entity which effectively controls his life, in regard to his request that he be

allowed to travel to Sault Ste. Marie to visit his mother for Christmas.

In it, parole officer Peter Moore tells Moore the travel pass is good for Dec. 23 to Dec. 27 with the following restrictions:

* He is not to board any bus providing public transportation within the city of Sault Ste. Marie;

* He is not to enter any of the grocery stores conducting business under the name of No Frills;

* He is to avoid contact with the family of the victim of his offence.

The idea behind the instruction apparently is to prevent Moore from accidentally coming into contact with any member of Lanthier's family. As such, I am surprised, since the instruction is so wide-ranging anyway, that Martell didn't go so far as to ban Moore from visiting local malls.

But the requirements as they stand, which haven't been applied to Moore previously, are stringent enough to be ridiculous.

I especially take issue with the instruction banning him from using the local transit system to get around.

Travelling from his Sudbury home to the Sault by bus and living on welfare, this virtually condemns him to walking everywhere he goes because he certainly can't afford cab fare.

The Crown didn't have any evidence to charge Moore with conspiracy to commit a crime, so it went with the ought-to-have-known offence, a law that was almost impossible to defend against. This was recognized by the Supreme Court of Canada which, in 1987, overturned the conviction of Yvan Vaillancourt, even though he was present when his accomplice in a robbery of a convenience store shot and killed the clerk.

Moore has caused no trouble since his release from prison in 1987. In fact, he thwarted a robbery at a convenience store in Sudbury.

So I say again: I think it is time we as a society should be able to find a way out of continuing to hang a lifetime of punishment on someone from the past when no one could be convicted under similar circumstances today.

That isn't much to ask.

Letter from NDP Justice Critic to Minister of Justice

2009-10-13T19:09:00.000-07:00

Honourable Rob Nicholson
Minister of Justice and Attorney General of Canada
Room 105 East Block
House of Commons
Ottawa, ON
K1A 0A6

December 2, 2010

Dear Minister Nicholson,

I am writing concerning the case of John Moore an aboriginal Canadian convicted of a 2nd degree murder in 1978 under s. 21(2) of the Criminal Code a section which as you are no doubt aware, s.21(2) was ruled unconstitutional in R. v. Vaillancourt.

At the time of Mr. Moore's conviction there existed a pattern of prosecution of First Nations as well as absence of representation on judicial panels which would now be ruled offensive to the Charter. Given the same set of circumstances today any objective observer would determine that he would not be charged, much less convicted of 2^nd degree murder.

Since his release from prison in 1989, Mr. Moore has continued to bear the burden and stigma of his conviction. He must still report to a parole officer, more than 30 years after his conviction and 20 years after his release from prison. The unique set of circumstances surrounding the case as well as the glaring injustice of his conviction cries out for clemency.

I would therefore ask you to investigate the matter and as is the Crown's prerogative under sections 748 and 749 of the Criminal Code, grant a full pardon to Mr. Moore.

Thank you for your prompt attention to this matter.

Yours truly,

Joe Comartin, MP
Windsor-Tecumseh

JJC/grh
CEP 232

CBC Radio Sudbury Coverage of Petitions

2009-10-12T06:25:00.000-07:00

See here for coverage of the presentation of John Moore's petition in Parliament by English CBC in Sudbury. It is a 5 minute interview with MP Glenn Thibeault, who presented the petition. The interview does not present as clearly as it could the patently unjust character of Moore's conviction -- it's not just that he wants to "move on with his life" now but rather that he should never have been convicted in the first place, given that the law under which he was convicted allowed people to be put away for a murder in which they had no involvement whatsoever, and given the systemic racism that shaped his experiences of the justice system. But it's exposure for the case, which is important, and Glenn and his staff should be commended for their work on John's behalf!

Wrongly convicted aboriginal man has been trying to clear name for 30 years

2009-10-12T06:13:00.000-07:00

New Democrats demand justice for John Moore: Wrongly convicted aboriginal man has been trying to clear name for 30 years
from CanadaViews.CA, November 25, 2010.

OTTAWA – Today marks the culmination of over two decades of hard work and perseverance by John Moore, an aboriginal Canadian wrongly convicted of a crime he didn’t commit. Moore, an Ojibway man, was convicted of 2nd degree murder in 1978 under s. 21(2) of the Criminal Code of Canada – a law that was later ruled unconstitutional in the late 1980s in R. v. Vaillancourt. Under similar circumstances today, no one in Moore’s position would be charged with a crime, let alone convicted.

Moore wants his name cleared so that he can begin to move on with his life following this 30 year ordeal. “It is my hope that with the attention my case has received today that my name is finally cleared,” said Moore. “I want to begin my life, and until this charge is lifted, I am still a prisoner.”

Since his release from prison in 1989, Moore has continued to bear the burden and stigma of his conviction. He must regularly report to a parole officer and must ask permission if he wishes to leave the city of Sudbury, impeding his freedom of movement and his capacity to find meaningful work while ultimately hindering his ability to fully reintegrate into society.

Moore has been actively involved in struggles for social justice in Sudbury, earning an overwhelmingly strong base of support within the community. “I know John personally; he has been an active and positive member of the Sudbury community for many years. The city has, and continues to, stand solemnly in support of John’s cause” said Glenn Thibeault (Sudbury).

In response to the suggestion that Mr. Moore’s trials were tainted with systemic racism, New Democrat Justice critic Joe Comartin (Windsor—Tecumseh) responded “This is just another example of the biased nature of Canada`s criminal justice system. We have seen cases like this over and over. It begs the question about whether Moore would have been treated as harshly by the criminal justice system if he were a white-collar Caucasian.”

Earlier this morning, over a thousand petitions were tabled in the House of Commons by various members of the New Democrat caucus calling on Justice Minister Rob Nicholson to take action to clear Moore’s name. Moore was accompanied by supporters from Justice and Freedom for John Moore, a committee composed of supporters from across Ontario.

MP Glenn Thibeault Introduces John Moore's Petition in Parliament

2009-10-11T06:05:00.000-07:00

On November 25, 2010, John Moore's struggle reached the floor of Parliament. Here is MP Glenn Thibeault introducing a petition with more than 3000 signatures asking that the Minister of Justice order a review of Moore's conviction.

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Moore wants his conviction to be overturned

2009-10-10T16:05:00.000-07:00

Unfortunately, The Sudbury Star doesn't let you embed their videos in other sites, so please follow this link to a short video report made on the occasion of a media conference at the office of MP Glenn Thibeault to send off a petition demanding a review of John's conviction with thousands of signatures to be presented in by Thibeault in the House of Commons. (The Star also does not tend to leave material up over long periods, so the link above may only work for a limited time.)

Local News Article: "'I wanted to die,' recalls former prisoner charged in Sault murder"

2009-10-09T09:54:00.000-07:00

'I wanted to die,' recalls former prisoner charged in Sault murder
by Bob Vaillancourt, published on August 10, 2010 in The Sudbury Star and August 11, 2010, in The Sault Star.

The violence and disturbing atmosphere of a federal penitentiary caused John Moore to contemplate taking his own life, he told a group of people on the front lawn of the Sudbury District Jail on Monday.

The gathering, led by the John Howard Society of Sudbury, was marking Prisoner Justice Day, a day set aside to remember the men and women who have died while serving time in jails, reformatories and federal penitentiaries.

Moore, who was convicted in the June 30, 1978, death of taxi driver Donald Lanthier in Sault Ste. Marie, has been spending every waking moment since that conviction seeking exoneration, saying he had nothing to do with the death.

He has said he was simply a taxi driver who happened to pick up a fare that turned out to be Lanthier's killers. [Please note that this is not actually what John says -- he was never a taxi driver. However, his conviction is based purely on having spent time earlier that day with the men who actually did kill Lanthier.

Moore was placed on parole in 1988 after serving 10 years.

Most of that time, he said Monday, was spent at Millhaven "a super maximum" facility that no one escapes from, particularly in broad daylight.

But Moore was so demoralized by his situation, that's exactly what he tried to do, anticipating that he would be fatally shot in the process.

He decided to escape by scaling the two perimeter fences at the facility.

"I didn't want to be in that environment. I wanted to die," he said on Monday. "It didn't turn out that way.

"I got over both fences without getting shot because that's what they do, they shoot, then they ask questions and then they put their reports in. But that day God must have been looking over me because I never got shot.

"It was like a spiritual awakening because if I could do that in broad daylight without getting shot, then somebody was watching over me," said Moore.

After he scaled the second, 25-foot high fence, Moore said he twisted his ankle and was soon apprehended by a guard who caught up with him.

It's good that a day is set aside to draw attention to the violence that can exist inside a penal institution, said Moore.

No one wants that violence, but it is there, said John Rimore of the John Howard Society.

No matter where they come from, or what they have done, the men and women behind bars deserve our support, said Colette Bezeau, a volunteer with the Elizabeth Fry Society.

Prisoner Justice Day "is a day to acknowledge that all of them were and are a part of our society," she said.

Summaries of Moore's Trials

2009-10-08T07:09:00.000-07:00

John is hard at work writing a book about his unjust conviction and his struggle for justice. In the course of doing that work, he has methodically gone through the thousands of pages of transcript from both of his trials and prepared summaries of them. He asked me to post the summaries here.

No evidence linking me to Mr. Lanthier's murder and robbery at First Trial 1979, second trial 1982.

The following pages is a summary of 3,000 pages of trial transcripts, into 19 pages of trial transcripts from two trials, 1979 winter trial, and the 1982 fall trial. The first trial in January 1979, there were 35 witnesses at the first trial and 33 of those witnesses and their evidence, absolutely and unequivocally don't link me to Mr. Donald Lanthier's murder and robbery. At the second trial fall of 1982, there were ten less witnesses's. At the second trial there was 25 witnesses's, 23 of those witnesses's and their evidence absolutely and unequivocally don't link me to Mr. Lanthier's murder and robbery.

IN THE SUPREME COURT OF ONTARIO

Regina vs. John Caleb Moore, Gordon Simon Stevens and Terrance Hogan.

Mr. N. Douglas: For The Crown Attorney
Mr. D. Gaetz: Lawyer for John Caleb Moore (Johnny) AN INNOCENT MAN.
Mr. K. Smyth: Lawyer for Gordon Simon Stevens (Gordy) GUILTY!
Miss L. Rudolph: Lawyer for Terrance Robert Hogan (Robert) GUILTY!

At the first trial on January 15-30, 1979, 27 Crown witnesses did not link me to Mr. Donald Lanthier's murder and robbery. The other two witnesses, Gordon Stevens and John C. Moore didn't link me to Mr. Lanthier's murder and robbery either. All witnesses and a summary of their evidence are listed below:

1.Sergeant Shanahan, {91 pages of evidence, volume 1, pages104-135, 142-147, 188-243}Crown Police witness, no DNA, no physical and no finger print evidence. Sergeant Shanahan's 91 pages of evidence absolutely doesn't link, John C. Moore too Mr. Donald Lanthier's murder and robbery.
2.Mrs. Joan Cole, {11 pages of evidence , volume 1, pages 147-158}Crown witness, her evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
3.Miss Shirley Lewis, {11 pages of evidence, volume 1, pages 158-169}Crown witness, her evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
4.Miss Marian Taylor-Bailey, {8 pages of evidence, volume 1, pages 169-177}Crown witness, her evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
5.Mr. Alan Gavin, {11 pages of evidence, volume 1, pages 177-188}Crown witness, his evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
6.Mr. Lloyd James Leach, {volume 1, page 144}Crown witness, No evidence presented by this witness.
7.Mr. Dale Lloyd, {volume 1, page 144}Crown witness, No evidence presented by this witness.
8.Mr. Norman Edward Erickson, {16 pages of evidence, volume 1, pages 245-261}Professional Crown witness, he is an Analysis for Forensic Sciences in Toronto, his evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
9.Constable Allan Rains, {8 pages of evidence, volume 1, pages 261-269}Crown Police witness, his evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
10.Detective Eric Overman, {14 pages of evidence, volume 1, pages 269-283}Crown Police witness, his evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
11.Miss Holly Overland, {15 pages of evidence, volume 2, pages 345-360}Crown Police witness, her evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
12.Mr. Scott Overland , {15 pages of evidence, volume 2, pages 360-375}Crown witness, his evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
13.Mr. Tim Lanthier , {2 pages of evidence, volume 2, pages 375-377}Crown witness, his evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
14.Ms. Joyce McLaughlin , {9 pages of evidence, volume 2, pages 377-386}Crown witness, her evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
15.Doctor Bendra Rasaiah Pathologist , {34 pages of evidence, volume 2&3. page 435 / vol 3 436-469}Professional Crown witness, his evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery. No DNA and No Physical evidence.
16.Detective Hugh Morrow , {21 pages of evidence, volume 3, pages 470-491}Police Crown witness, his evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
17.Mrs. Sylvia Nichols , {13 pages of evidence, volume 3, pages 616-629}Crown witness, her evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
18.Mr. Ronald Bernie Bugie, {3 pages of evidence, volume 3, pages 631-634}Crown witness, his evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
19.Ms. Darlene Joy Marshall, {61 pages of evidence, volume 3&4, pages 635-650 / vol 4 651-697}Crown witness, her evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery. There is clear evidence in Ms. Marshall's evidence, that suggest she knew of Robert Hogan's knife, that he used in the murder of Mr. Lanthier. This would make her an accessory after the fact to murder. Yet no charges where filed against her.
20.Mrs. Eleanor Boreham , {23 pages of evidence, volume 4, pages 698-721}Crown witness, her evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery. Mrs. Boreham was an extremely nervous and confused witness, with times and days in her evidence.
21.Ms. Barbara Pasqua , {12 pages of evidence, volume 4, pages 722-734 / [page 726-628, suggest accessory after the fact to murder. No mention of asking Mr. Hogan to pull a job behind Royal Bank.]}Crown witness, her evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery. There is clear evidence in Ms. Pasqua's evidence, that suggest she knew of Robert Hogan's knife, that he used in the murder of Mr. Lanthier. Ms. Pasqua and Lee Anne Ledyit, washed Mr. Hogans clothing with blood on it. Therefore, washing DNA evidence off Mr. Hogan's clothing. This would make her an accessory after the fact to murder. Yet no charges where filed against her.
22.Miss. Lee Anne Ledyit, {35 pages of evidence, volume 4, pages 735-770, [page 747-750 & 760 & 766 lines 25-32, suggest accessory after the fact to murder. At page 758 line 3, suggest mistrial.]}Crown witness, her evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery. Lee Anne Ledyit, washed Mr. Hogans clothing with blood on them. Therefore, washing DNA evidence off Mr. Hogan's clothing. This would make her an accessory after the fact to murder. Yet no charges where filed against her. Miss Ledyit was asked this question by my lawyer, Mr. Gaetz, Question: I see who told you that? Answer: “I can't remember if it was the Crown Attorney or a Detective.” This suggest a miss trial that could have been called!
23.Mr. Michael Dorhety, {14 pages of evidence, volume 4, pages 771-785, page 777 makes it clear that there was no discussion about robbing a cab driver. The alleged discussion was about a confectionary store. On page 782 lines 14-23, Mr. Dorhety states that there was no discussion about a job.}Crown witness, his evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery. Mr. Dorhety's, evidence, was allegedly of robbing a confectionery store. In Mr. Dorhety's, there is no evidence suggesting robbing a taxi-driver.
24.Mr. Ivan Walter McCrieght, {10 pages of evidence, Volume 4, pages 786-796, confused witness, at page 9 lines, 24-28, Mr. McCrieght states he didn't know anyone else at Darlene's place.} Crown witness, his evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery. After, four cross-examinations by four different Lawyers, there is not a shred of evidence that suggest that Mr. McCrieght knew me, John C. Moore, personally. In his own words, “I don't know the other two guys, that where there.” (Q: Did you know them? A: “No, I just met them that night eh.”) [Volume 4, Page 794 at lines 24 to 28].
25.Mr. Chris McDonald, {2 pages of evidence, volume 4, pages 797-799}Crown witness, his evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
26.Mr. Leslie Lorne Williams, {2 pages of evidence, volume 4, pages 800-802}Crown witness, his evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
27.Mr. Donald Nevitt, {13 pages of evidence, volume 4, pages 803-816 [there is no acknowledgment that Mr. Nevitt even knew me, at page 807 lines 18-32 / 808 lines 4-10, Mr. Nevitt was asked this Q: “was Gordon Steven by himself?” A: “Yes, sir.”]}Crown witness, his evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery. After, three cross-examinations by three different Lawyers, there is not a shred of evidence that suggest that Mr. Nevitt knew me, John C. Moore, personally.
28.Mr. Gordon Simon Stevens, {217 pages of evidence, volume 6&7, pages 1024-1180 / vol 7 pages 1181-1241} witness, his evidence absolutely doesn't link John C. Moore, too Mr. Donald Lanthier's murder and robbery.
29.Mr. John Caleb Moore's {164 pages of evidence, volume 5, pages 859-1022} suggest I had no idea that a cab driver was to be killed and robbed. Nor was I involved in any planning of the crime. Actually, I was found not guilty of a plan and deliberate murder! Officer Burn's evidence was of a conversation of utterances between Gordon and I, and under oath he stated, his notes where somewhat scratchy and some what distorted! At times Stevens and I where talking at the same time so he didn't write those parts down and he left information out of his scratchy notes. That information left out could have been the key evidence confirming my innocence! Adding to this, the fact that Constable Burns stating that his written notes were not clear raises doubt in what was alleged to have been said by Stevens and I in the holding cells on August 3, 1978.

I, John Caleb Moore, do solemnly, sincerely, and truly affirm that I absolutely and unequivocally did not kill Mr. Donald Lanthier.

I, John Caleb Moore, do solemnly, sincerely, and truly affirm that I absolutely and unequivocally did not know that Mr. Gordon Stevens or Mr. Robert Hogan had any weapons upon their person.

I, John Caleb Moore, do solemnly, sincerely, and truly affirm that I absolutely and unequivocally did not form an intention in common to rob the deceased with either Mr. Nichols or Mr. Stevens or Mr. Hogan.

There was speculation that there may have been a prier conversation, but speculation is not factual.

Actually, there were three of the Crown's witnesses's, Darlene Joy Marshall, Barbara Pasqua and Lee Anne Ledyit, whom admitted under oath that they knew about Mr. Hogan's weapon and knew of the blood on Mr. Hogan's clothing. Yet they washed Mr. Hogan's clothing that had blood or DNA evidence on them and gave Mr. Hogan's knife to Mr. Stevens for disposal. So these three Crown's witnesses could have been and should have been charged with accessories after the fact. All three witnesses, “should have or ought to have known”. The Crown chose not to charge these three woman. And why not?

I have this great sadness in my heart for my wrongful unconstitutional second degree murder conviction. I feel an overwhelming of sadness for the people who have unfairly judged me with no physical or DNA evidence. All they had was circumstantial evidence, hear-say evidence, lies, inconsistent statements, deep rooted racial beliefs among the Non-Aboriginal Sault Ste. Marie jurors, bias jury selection, inaccurate police notes and adverse and hostile Crown Witnesses constitutes doubt and therefore, I should have received the benefit of the doubt, which I am entitled to by law. Other witnesses were vague, sometimes inconsistent and sometimes contradictory.

My unconstitutional second degree murder conviction was based not upon any credible or factual evidence, but my unconstitutional second degree murder conviction was based on, simply upon an appeal to racism rather than reason and on the concealment of the truth. Racism played an extremely big part in my second degree murder conviction!

It was proven beyond a reasonable doubt that I was not present when the crime was committed. I played no part whatsoever in planning or executing the June 30, 1978 murder and robbery of Mr. Donald Lanthier, the Sault Ste. Marie, taxi driver. It was proven beyond a reasonable doubt that I was not present when the crime was committed. I played no part whatsoever in planning or executing the June 30, 1978 murder and robbery of Mr. Donald Lanthier, the Sault Ste. Marie, taxi driver.

My sole connection to the crime was that I spent time earlier that same day with Gordon Stevens and Robert Hogan, in Rick Nichol's car. Gordon Stevens and Robert Hogan, are the two men who did commit the June 30, 1978 murder of Mr. Lanthier. What ever Mr. Gordon Stevens and Mr. Robert Hogan did, they did of their own volition! I am not legally, liable for the irreversible actions of what Mr. Stevens and Mr. Hogan did to Mr. Donald Lanthier.

At the first trial on January 15-30, 1979, 27 Crown plus Gordon Stevens and John C. Moore witnesses don't link me to Mr. Donald Lanthier's murder and robbery. So far we have 29 witnesses that absolutely don't link me to Mr. Donald Lanthier's murder and robbery.

The seven remaining witnesses are listed below:

30. Detective Paul Doiren, {57 pages of evidence, volume 1&2, pages 283-300 / vol 301-345}Crown Police witness, his questionable evidence is from a Police Officer's point of view. There is evidence right across Canada, to suggest that police will lie to get a conviction. I made it very clear to Detective Doiron that I did not plan any type of crime and I did not kill Mr. Donald Lanthier. The fact that I was acquitted of a planned and deliberate act of murder, shows you that there was no plan. Actually, with this witness, there is absolutely no evidence that suggest that I was a part of murdering and robbing Mr. Donald Lanthier, The Sault Ste. Marie Taxi-driver.
31. Constable Gary Burn, admissible in law, {47 pages of evidence, volume 2, pages 387-434}Crown Police witness, his questionable evidence is from a Police Officer's point of view. There is evidence right across Canada, to suggest that police will lie to get a conviction. In the trial transcripts, volume 2, at page 422 and at lines 28 and 29, Constable states under oath that his notes were scratchy. He also states under oath that he left information out of his written notes, because Mr. Stevens and I were talking at the same time and too fast at times. There were many discrepancies in Constable Burn's scratchy and distorted notes of utterances, between the written and typed version! Those inaccurate, scratchy and distorted notes and that information, that was left out of Constable Burn's notes of the conversation of utterances could have been the key evidence confirming my innocence! With this in mind, by what Constable Burn's stated under oath about his inaccurate and distorted written notes of utterances, this would make it very clear and it also raises doubt in what was alleged to have been said, by Mr. Stevens and myself, in the holding cells on August 3, 1978, at 11:45 p.m.
32. Mr. Robert Terrance Hogan , Admissible in law, {133 pages of evidence, volume 7, pages 1242-1375} Crown witness, Mr. Hogan's August 3, 1978, statement is how I was implicated and dragged through this racist court system in the first place. At the first trial. Mr. Justice Stark warned the Non-Aboriginal jury that while Mr. Hogan's statement was admissible as evidence, “it is binding only against the man who made it and cannot be used against the others allegedly involved!” In one part of Mr. Hogan's statement, he claims that I threaten his life is he didn't kill the cab driver, which is false because, I absolutely and unequivocally did not threaten Mr. Hogan's life, in any way whatsoever. I believe he some how confused me with Mr. Stevens. Then Mr. Hogan alleges that I gave Mr. Stevens a bunch of phone numbers, for for a number of taxi-drivers. There is no evidence to show that this piece of paper with taxi numbers on it ever exchanged hands. It has been proven beyond a reasonable doubt, that I was not present when Mr. Stevens and Mr. Hogan, killed and robbed Mr. Donald Lanthier. I absolutely and unequivocally did not play and active role in planning or executing the June 30, 1978, murder and robbery of Mr. Donald Lanthier, the Sault Ste. Marie, Taxi-driver. My sole connection to the June 30, 1978 murder and robbery of Mr. Donald Lanthier, was spending time earlier that same day with Rick Nichols, Gordon Stevens and Robert Hogan. What ever Mr. Gordon Stevens and Mr. Robert Hogan did, they did of their own volition! I, John C. Moore, am not legally or liable for the irreversible actions of the principal offenders, Mr. Stevens and Mr. Hogan the principal offenders.
33. Mr. Richard Nichols, admissible in law, {123 pages of evidence, volume 3, pages 492-615} lying Crown witness, (he is white), his evidence consisted of five inconsistent statements, which where subject to a void dire! My sole connection to the crime was just being in Rick Nichol's car with Gordon Stevens and Robert Hogan earlier in the day and then again when Rick dropped Stevens and Hogan off that evening around 11:30 p.m. on June 29, 1978, around Goulais Ave and Douglas street. That is about the closest I came to the murder and robbery of Mr. Lanthier. Back then I never had my drivers licence. It was Rick Nichols who asked me if I would like to go for a ride that evening. In Rick's evidence there are numerous times he lied, by saying I made certain alleged comments about what Gordon and Terry had said while existing Ricks car that evening. Those alleged comments where never made by me or to me by Gordon Stevens or Robert Hogan. There were clear inconsistencies and contradiction in Rick Nichols evidence. Mr. Nichol's evidence absolutely don't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery.
34. Officer John Campbell, {7 pages of evidence, volume 4, pages 817-824, [At 819 lines 25-28, six words]}Crown Police witness, his evidence was of an alleged whispering comment that I allegedly made and directed at Mr. Robert Hogan. The words that were allegedly used by me and Officer John Campbell supposedly over heard were these words, “you fucken snitch, you fucken squealer.” Six words out of his eight pages of evidence. I know for a fact I didn't use such words, because those words where not part of my vocabulary. I never heard such words, “you fucken snitch, you fucken squealer”, until I was imprison, for a murder that I absolutely and unequivocally did not commit or had any part in. There is evidence right across Canada, to suggest that police will lie to get a conviction.
35. Officer George T. Burmasters, {8 pages of evidence, volume 4, pages 824-832, [At page 827 lines 20-22, one sentence.]}Crown Police witness, his evidence was of an alleged conversation he allegedly overheard through an inch or two inch crack in the door of court room C, Justice Boyd's Court room, between Mr. Stevens and myself. This alleged conversation was what Mr. Stevens, allegedly had said, “There are only four of us that know what happen that night. One is dead, you, me and Hogan.” Nine pages of evidence of an alleged conversation and those two sentences are the ones that stick out at the first trial. This alleged conversation absolutely and unequivocally did not transpire, between Mr. Stevens and myself. This alleged conversation could happen anywhere, between the court house and city jail. Yet Officer Burmasters, by chance overhears this alleged conversation through a crack in a court room door, which was about an inch or two. There is evidence right across Canada, to suggest that police will lie to get a conviction.
36. Detective Donald Sadowski, {23 pages of evidence, volume 4, pages 832-855}Crown Police witness, his evidence is all hear say evidence. There is evidence right across Canada, to suggest that police will lie to get a conviction. There is not physical or DNA evidence that links me too Mr. Donald Lanthier's murder and robbery. Mr. Hogan's statement is what implicated me in the murder of Mr. Donald Lanthier in the first place. But, it is clear in Mr. Hogan's statement, that Detective Sadowski's took, that Mr. Hogan said he planned it and he also stated that he stabbed the Taxi-driver Mr. Donald Lanthier many times.

SUMMARY OF THE FACTS:
After, Crown Attorney Norman Douglas, closed his case in 1979, In Regina vs. John C. Moore, there was absolutely no evidence to go to a Non-Aboriginal jury properly instructed that Mr. Moore planned a premeditated murder. Because, I absolutely and unequivocally did not kill Mr. Donald Lanthier the Sault Ste. Marie, Taxi-driver. Mr. Justice Stark stated this in court, “I don't see any great difficultly in protecting Mr. Gaetz's client John C. Moore, with respect to utterances made by others, which shouldn't be used as implication him.”

At the first trial there was roughly 1,795 pages of evidence that was presented, on January 15-30, 1979, including 56 exhibits. There was absolutely no factual evidence that was presented that linked me, John C. Moore to Mr. Donald Lanthier's murder and robbery. There were 36 witnesses that presented their evidence in front of a Judge and Non-Aboriginal jurors, and 34 of those witnesses, their evidence absolutely don't link me to Mr. Donald Lanthier's murder and robbery.

Note: No evidence linking me to Mr. Donald Lanthier's murder and robbery at second trial 1982 fall.

At the second trial in September 1982, there were 25 witnesses called, 10 less than the first trial and all 25 witnesses, had absolutely no factual evidence, that linked me too Mr. Donald Lanthier's murder and robbery. Actually, it was proven beyond a reasonable doubt, that I wasn't present when Mr. Lanthier was murder and robbed, by Mr. Gordon Stevens and Mr. Robert Hogan. To make it very clear, crystal clear, I am not legally responsible for the irreversible actions or Mr. Stevens or Mr. Hogan. What ever Mr. Stevens and Mr. Hogan did, they did of their own volition and that is a fact! I absolutely and unequivocally did not play an active role in planning or executing the June 30, 1978 murder and robbery of Mr. Donald Lanthier, the Sault Ste. Marie, Taxi-driver. Nor am I, legally responsible or liable for the death of Mr. Donald Lanthier. I am sincerely sorry, for Mr. Lanthier's death, but I absolutely and unequivocally did not play an active role in his death! My sole connection to the crime, was being in Rick Nichol's car earlier that day, with Mr. Stevens and Mr. Robert Hogan and again later on that evening, when Rick Nichols gave Gordon and Robert a ride to the West end of the city and dropped them off.

IN THE SURPREME COURT OF ONTARIO

BETWEEN: HER MAJESTY THE QUEEN Complainant

- and -

JOHN CALEB MOORE Accused

T R I A L P R O C E E D I N G S

Before THE HONOURABLE MR. JUSTICE WALSH, and a Non-Aboriginal jury, at the sittings of the Assizes, in the Court House at Sault Ste. Marie, in the District of Algoma; commencing at 12 o'clock noon on Monday, the 20th of September 1982. September 20-30, 1982.

A P P E A R A N C E S:

NORMAN DOULAS Esq.: For The Crown Attorney
FRANK R. CAPUTO, Esq. Q.C.: Lawyer for John Caleb Moore AN INNOCENT MAN.
-and-
RODERICK W.A. SONLEY, Esq.

At the second trial on, September 20-30, 1982, 25 Crown witnesses did not link me to Mr. Donald Lanthier's murder and robbery. All witnesses and a summary of their evidence are listed below:

WITNESSES AND THEIR EVIDENCE.

Monday -- September 20, 1982

1.Sergeant Shanahan, {55 pages of evidence was read in and 36 less pages than my first trial 1979, volume 1, pages 102-157}Crown Police witness, no DNA, no physical and no finger print evidence. Sergeant Shanahan is the Sault Ste. Identification Officer. Sergeant Shanahan's 55 pages of evidence absolutely doesn't link me, John C. Moore too Mr. Donald Lanthier's murder and robbery. Detective Ivan Shanahan, his evidence was read in. His evidence was in the capacity of the Police Identification Officer, photographer, and finger printing, his job is gather evidence and tag it and then present it. His evidence did not link me to the crime scene. There were no solid facts in his evidence that linked me to the murder of Mr. Lanthier.

Tuesday -- September 21, 1982

2.Miss Shirley Lewis, {10 pages of evidence was read in 1 less page than my first trial 1979, volume 1, pages 159-169}Crown witness, her evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery. She was the Dispatcher with Steel City Cab.
3.Miss Marian Taylor-Bailey, {7 pages of evidence was read in 1 page less than my first trial 1979, volume 1, pages 170-177}Crown witness, her evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery. She was the Dispatcher with Steel City Cab.
4.Mr. Alan Gavin, {10 pages of evidence was read in, 1 page less than my first trial 1979, volume 1, pages 177-188}Crown witness, his evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery. Pete Gavin was a Steel City Cab driver.
5.Constable Allan Rains, {9 pages of evidence was read in three more than my first trial 1979, volume 1, pages 186-195}Crown Police witness, his evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery.
6.Mrs. Joan Cole, {10 pages of evidence was read in 1 less page than my first trial 1979, volume 1, pages 195-205}Crown witness, her evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery.
7.Miss Holly Overland, {11 pages of evidence was read in 3 less pages than my first trial 1979, volume 1, pages 206-217}Crown Police witness, her evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery.
8.Mr. Tim Lanthier , {2 pages of evidence was read in, volume 1, pages 216-217}Crown witness, his evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery.
9.Detective Hugh Morrow, {35 pages of evidence, volume 1, pages 218-253}Police Crown witness, his evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery.
10.Detective Donald Sadowski, {36 pages of evidence 13 more pages than my first trial 1979, volume 1&2, pages 253-285 / vol.2 pages 287-291}Crown Police witness, his evidence is all hear say evidence. There is evidence right across Canada, to suggest that police will lie to get a conviction. There is not physical or DNA evidence that links me too Mr. Donald Lanthier's murder and robbery. Mr. Hogan's statement is what implicated me in the murder of Mr. Donald Lanthier in the first place. But, it is clear in Mr. Hogan's statement, that Detective Sadowski's took, that Mr. Hogan said he planned it and he also stated that he stabbed the Taxi-driver Mr. Donald Lanthier many times.

Wednesday -- September 22, 1982

Detective Donald Sadowski, (resumes)[In-chf by Mr. Douglas (continued), Cr-ex by Mr. Caputo, Re-ex by Mr. Douglas]{36 pages of evidence 13 more pages than my first trial 1979, volume 1&2, pages 253-285 / vol.2 pages 287-291}Detective Donald Sadowski, {36 pages of evidence 13 more pages than my first trial 1979, volume 1&2, pages 253-285 / vol.2 pages 287-291}.
11.Constable Gary Burn, admissible in law, [Was subject to a void dire.], {46 pages of evidence, volume 2, pages 291-337, In-chf by Mr. Douglas 291, Cr-ex by Mr. Caputo 320, Re-ex by Mr. Douglas 334.} Crown Police witness, his questionable evidence is from a Police Officer's point of view. There is evidence right across Canada, to suggest that police will lie to get a conviction. In the first trial transcripts 1979, in volume 2, at page 422 and at lines 28 and 29, Constable states under oath that his notes were scratchy. He also states under oath that he left information out of his written notes, because Mr. Stevens and I were talking at the same time and too fast at times. There were many discrepancies in Constable Burn's scratchy and distorted notes of utterances, between the written and typed version! On page 308 at lines 28-30: A JURY MAN: My lord, we, the (Non-Aboriginal) jurors, were wondering if we could have the report given by the Constable here, that he gave this morning – have it re-read to us.? On page 309 at lines 3-4: It was confusing to us as to who was doing the speaking back and forth. Near the end of Officer Burn's evidence there was some confusion! Those inaccurate, scratchy and distorted notes and that information, that was left out of Constable Burn's notes of the conversation of utterances could have been the key evidence confirming my innocence! With this in mind, by what Constable Burn's stated under oath about his inaccurate and distorted written notes of utterances, this would make it very clear and it also raises doubt in what was alleged to have been said, by Mr. Stevens and myself, in the holding cells on August 3, 1978, at 11:45 p.m. In cross-examination, Officer Burns said he left parts of the conversation of utterances out of his notes. He also said his notes were scratchy. He also said he may have missed parts of the conversation of utterances. He even said his written version of the conversation of utterances were somewhat distorted. Mr. Burns said, and I quote: "They talked about many things, I did not write everything down in my notes." He also said, and I quote: "My notes look somewhat distorted." The type version of Officer Burn's inaccurate notes, where not the mirror image of his written version, but the opposite of them.
12.Mr. Richard Nichols, admissible in law, [Was subject to a void dire.] {120 pages of evidence, volume 2, pages 337-457} lying Crown witness, (he is white), his evidence consisted of five inconsistent statements, which where subject to a void dire! My sole connection to the crime was just being in Rick Nichol's car with Gordon Stevens and Robert Hogan earlier in the day and then again when Rick dropped Stevens and Hogan off that evening around 11:30 p.m. on June 29, 1978, around Goulais Ave and Douglas street. That is about the closest I came to the murder and robbery of Mr. Lanthier. Back then I never had my drivers licence. It was Rick Nichols who asked me if I would like to go for a ride that evening. In Rick's evidence there are numerous times he lied, by saying I made certain alleged comments about what Gordon and Terry had said while existing Ricks car that evening. Those alleged comments where never made by me or to me by Gordon Stevens or Robert Hogan. There were clear inconsistencies and contradiction in Rick Nichols evidence. Mr. Nichol's evidence absolutely don't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery.

Thursday – September 23, 1982

Mr. Richard Nichols, admissible in law, (resumes) In-chf by Mr. Douglas (continued), Cr-ex by Mr. Caputo, Re-ex by Mr. Douglas. [Was subject to a void dire.] {120 pages of evidence, volume 2, pages 337-457} lying Crown witness, (he is white), his evidence consisted of five inconsistent statements, which where subject to a void dire!

13.Mr. Donald Nevitt, {10 pages of evidence, volume 2, pages 457-467, (In-chf by Mr. Douglas 457, Cr-ex by Mr. Caputo 467.) [at the first trial 1979, there was no acknowledgment that Mr. Nevitt ever knew me at the first trial, at page 807 lines 18-32 / 808 lines 4-10, Mr. Nevitt was asked this Q: “was Gordon Steven by himself?” A: “Yes, sir.”]}Crown witness, his evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery. After, three cross-examinations by three different Lawyers, there is not a shred of evidence that suggest that Mr. Nevitt knew me, John C. Moore, personally. On page 459 at lines 10-20, it appears that Mr. Nevitt was either coached by the Crown or Police, because it appears that he knows me more personally at the second trial September 1982.
14.Ellie Stone (Mrs. Eleanor Boreham), {9 pages of evidence, volume 2, pages 467-475, ( In-chf by Mr. Douglas 467, Cr-ex by Mr. Caputo 474)} Crown witness, her evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery. Ellie Stone (Mrs. Boreham) was an extremely nervous and confused witness, with times and days in her evidence at the first trial 1979. Miss Stone was extremely confused and nervous at the second trial as well. Miss Stone's evidence at the second trial was 14 pages less than my first trial. The Crown even suggested that Miss Stone was confused as well.
15.Ms. Darlene Joy Marshall, Hearsay evidence {27 pages of evidence, volume 2 pages 476-503, 34 pages more than my first trial 1979. (In-chf by Mr. Douglas 476, Cr-ex by Mr. Caputo 498.)}Crown witness, her evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery. There is clear evidence in Ms. Marshall's evidence, that suggest she knew of Robert Hogan's knife, that he used in the murder of Mr. Lanthier. This would make her an accessory after the fact to murder. Yet no charges where filed against her.
16.Ms. Barbara Phillips, {23 pages of evidence, volume 2, pages 503-526, 11 more pages of evidence than my first trial.(In-chf by Mr. Douglas 503, Cr-ex by Mr. Caputo 512.) } [page 726-628, suggest accessory after the fact to murder at the first trial 1979. No mention in first trial 1979 trial transcript, that I was asking Mr. Hogan to pull a job behind Royal Bank.] But at the second trial 1982, there was a mention of me and Mr. Hogan allegedly speaking of pulling a job. There was no alleged conversation between Mr. Hogan, Mr. Steven or Myself, that Ms. Phillips (Ms. Pasqua) could have overheard. The only job I mention was a legitimate job in Elliot Lake at Denison Mines Ltd. Which could have been some confusion in her evidence at the second trial. Crown witness, Barbara Phillip's evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery. There is clear evidence in Ms. Barbara Phillips, (Ms. Pasqua's) evidence, that suggest she knew of Robert Hogan's knife, that he used in the murder of Mr. Lanthier. Also, Ms. Pasqua and Lee Anne Ledyit, washed Mr. Hogans clothing with blood on it. Therefore, washing DNA evidence off Mr. Hogan's clothing. This would make her an accessory after the fact to murder. Yet no charges where filed against her.

Friday -- September 24, 1982

17.Mr. Robert Terrance Hogan , Admissible in law, In-chf by Mr. Douglas {55 pages of evidence, volume 3, pages 527-582, there are 78 pages less, than my first Trial 1979.} Crown witness, Mr. Hogan's August 3, 1978, statement is how I was implicated and dragged through this racist court system in the first place. At the first trial. Mr. Justice Stark warned the Non-Aboriginal jury that while Mr. Hogan's statement was admissible as evidence, “it is binding only against the man who made it and cannot be used against the others allegedly involved!” In one part of Mr. Hogan's statement, he claims that I threaten his life is he didn't kill the cab driver, which is false because, I absolutely and unequivocally did not threaten Mr. Hogan's life, in any way whatsoever. I believe he some how confused me with Mr. Stevens. Then Mr. Hogan alleges that I gave Mr. Stevens a bunch of phone numbers, for a number of taxi-drivers. There is no evidence to show that this piece of paper with taxi numbers on it ever exchanged hands. It has been proven beyond a reasonable doubt, that I was not present when Mr. Stevens and Mr. Hogan, killed and robbed Mr. Donald Lanthier. I absolutely and unequivocally did not play and active role in planning or executing the June 30, 1978, murder and robbery of Mr. Donald Lanthier, the Sault Ste. Marie, Taxi-driver. My sole connection to the June 30 , 1978 murder and robbery of Mr. Donald Lanthier, was spending time earlier that same day with Rick Nichols, Gordon Stevens and Robert Hogan. What ever Mr. Gordon Stevens and Mr. Robert Hogan did, they did of their own volition! I, John C. Moore, am not legally or liable for the irreversible actions of the principal offenders, Mr. Stevens and Mr. Hogan the principal offenders. Under oath at the second trial 1982, stated 222 times that he doesn't remembering making his inaccurate and lying statement. And I absolutely and unequivocally did not adopt Mr. Hogan's statement in anyway shape or form! I, John Caleb Moore, do solemnly and sincerely, and truly affirm that I absolutely and unequivocally did not kill Mr. Donald Lanthier. I, John Caleb Moore, do solemnly and sincerely, and truly affirm that I absolutely and unequivocally did not know that Mr. Gordon Stevens or Mr. Robert Hogan had any weapons upon their person. I, John Caleb Moore, do solemnly and sincerely, and truly affirm that I absolutely and unequivocally did not form an intention in common to rob the deceased Mr. Lanthier with either Mr. Nichols, Mr. Stevens or Mr. Hogan. THE HONOURABLE MR. JUSTICE WALSH, ruled in a void dire, that Mr. Robert Hogan was adverse and hostile witness for the Crown. Which eliminates Mr. Robert Hogan as the Crown's number one key witness. That mean Mr. Hogan's August 3, 1978 statement is not evidence against me, it's only evidence against himself.

Monday -- September 27, 1982

Mr. Robert Terrance Hogan , Admissible in law, (resumes) Cr-ex by Mr. Caputo, Re-ex by Mr. Douglas {55 pages of evidence, volume 3, pages 527-582, there are 78 pages less, than my first Trial 1979.} Crown witness, Mr. Hogan's August 3, 1978, statement is how I was implicated and dragged through this racist court system in the first place. At the first trial. Mr. Justice Stark warned the Non-Aboriginal jury that while Mr. Hogan's statement was admissible as evidence, “it is binding only against the man who made it and cannot be used against the others allegedly involved!”

18.Mr. Michael Dorhety, {18 pages of evidence, volume 3, pages 582-600, there are 4 more pages than my first trial 1979. (In-chf by Mr. Douglas 582, Cr-ex by Mr. Caputo 593.)} [On page 777 vol 4, at the first trial, makes it clear that there was no discussion about robbing a cab driver. The alleged discussion was about a confectionary store. On page 782 lines 14-23, Mr. Dorhety states that there was no discussion about a job. There was never any alleged discussion on any criminal active. The only discussion was a job that was offered at Denison Mines Ltd.] Crown witness, Mr. Michael Dorhety's evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery. Mr. Dorhety's, evidence, was allegedly of robbing a confectionery store. In Mr. Dorhety's, there is no evidence suggesting robbing a taxi-driver.
19.Miss. Lee Anne Ledyit, {19 pages of evidence, volume 3, pages 601-620, 16 pages less than my first trial 1979. (In-chf by Mr. Douglas 601, Cr-ex by Mr. Caputo 612, Re-ex by Mr. Douglas 620.) [At my first trial 1979, Vol 4 pages 747-750 & 760 & 766 lines 25-32, suggest accessory after the fact to murder. At page 758 line 3, suggest mistrial.]}Crown witness, her evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery. Lee Anne Ledyit, washed Mr. Hogans clothing with blood on them. Therefore, washing DNA evidence off Mr. Hogan's clothing. This would make her an accessory after the fact to murder. Yet no charges where filed against her. [Miss Ledyit was asked this question by my lawyer, Mr. Gaetz, at the first trial, Question: I see who told you that? Answer: “I can't remember if it was the Crown Attorney or a Detective.” This suggest a miss trial that could have been called!] Also In chief, on page 606 lines 23-31, page 610 lines 16-27, page 611 lines 3-31, page 612 lines 3-14, [Cross examination], page 614 lines 12-31, page 615 lines 24-31 and page 617 lines 18-25, all these pages and lines are suggesting that Lee Ann Ledyit, Darlene Marshall and Barbara Pasqua, could have been charged with being accessories after the fact to murder. No charges were laid!
20.Ms. Joyce McLaughlin , {9 pages of evidence was read in at second trial 1982, volume 3, pages 621-630}Crown witness, her evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery.
21.Mr. Chris McDonald, {2 pages of evidence was read in at second trial, volume 3, pages 630-632}Crown witness, his evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery.
22.Mr. Ivan Walter McCrieght, {49 pages of evidence, Volume 3, pages 633-682, 39 pages more than my first trial 1979. (In-chf by Mr. Douglas 633, Cr-ex by Mr. Caputo 640, Re-ex by Mr. Douglas 679.){ At the first trial 1979, at pages 786-796, Mr. Was an extremely confused witness, at page 9 lines, 24-28, Mr. McCrieght states he didn't know anyone else at Darlene's place.} Crown witness, his evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery. After, four cross-examinations by four different Lawyers, there is not a shred of evidence that suggest that Mr. McCrieght knew me, John C. Moore, personally. In his own words, “I don't know the other two guys, that where there.” (Q: Did you know them? A: “No, I just met them that night eh.”) [Volume 4, Page 794 at lines 24 to 28]. But at the second trial 1982, it appeared that Mr. McCreight was coached by either the Crown or Police. At pages 637&638 at the second trial, there is evidence that suggest that Mr. McCreight was coached and confused about this alleged conversation between four people in two rooms from the living room couch. At page vol 3, 646 and lines 20-25, Mr. McCreight was talking about the fight on Friday June 30, 1978 in the evening. On page vol 3, 647 at lines 24-27, Mr. McCreight stated he was confused about the date and times. And at page vol 3, 649 at lines 20-27, Mr. McCreight stated that the bed room door was closed. Even the judge notice that Mr. McCreight was some what confused, on page vol 3, 652 at lines 7-20. So at page 652 vol 3, at lines 15-31, Mr. Justice Walsh, starts his own cross examination of Mr. McCreight for the Crown. Mr. Justice Walsh cross examination of Mr. McCreight continued for about four or six pages off and on. What Justice Walsh did, was against rules of evidence, which suggest that a mistrial should have been called. On page 659 at lines24-25, Mr. McCreight said, “You've got me too confused. I can't remember what's going on.” On page 663 at lines 5-17, Mr. McCreight states that he has a learning disability, which affects his memory. At page 667 at lines 14-31, there evidence that suggest that a mistrial could have been called. On page 676 at lines 20-31, there is more evidence to suggest a mistrial and also evidence to suggest coaching of the witness Mr. McCreight by the Crown and the Police. On page 678 and 679, there is more evidence that suggest coaching of Mr. McCreight, before the 1982 trial. Then on page 680 at lines 2-10, Mr. McCreight states, “I'm not trying to make things up.”
23.Mr. Scott Overland , {A reference was made to Scott Overland one page of evidence, volume 3, page 683} Crown witness, his evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery.
24.Doctor Bendra Rasaiah Pathologist , {20 pages of evidence was read in, 14 pages less than my first trial 1979, volume 3. page 684-704}Professional Crown witness, his evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery. No DNA and No Physical evidence.
25.Mr. Norman Edward Erickson, {11 pages of evidence was read in, 5 less pages than my first trial 1979, volume 3, pages 705-716}Professional Crown witness, he is an Analysis for Forensic Sciences in Toronto, his evidence absolutely doesn't link me, John C. Moore, too Mr. Donald Lanthier's murder and robbery.
26.Officer John Campbell, {4 pages of evidence 3 pages less than my first trial 1979, volume 3, pages 716-720, [At the first trial 1979 at page, 819 lines 25-28, six words]}Crown Police witness, his evidence was of an alleged whispering comment that I allegedly made and directed at Mr. Robert Hogan. The words that were allegedly used by me and Officer John Campbell supposedly over heard were these words, “you fucken snitch, you fucken squealer.” Six words out of his eight pages of evidence. I know for a fact I didn't use such words, because those words where not part of my vocabulary. I never heard such words, “you fucken snitch, you fucken squealer”, until I was imprison, for a murder that I absolutely and unequivocally did not commit or had any part in. There is evidence right across Canada, to suggest that police will lie to get a conviction. This Crown police witnesses's evidence doesn't link me, John C. Moore too, Mr. Lanthier's murder and robbery.
27.Officer George T. Burmasters, {12 pages of evidence 4 more pages than my first trial 1979, volume 3, pages 721-733, [At My first trial at page 827 lines 20-22, one sentence.]}Crown Police witness, his evidence was of an alleged conversation he allegedly overheard through an inch or two inch crack in the door too court room C, Justice Boyd's Court room, between Mr. Stevens and myself. This alleged conversation was what Mr. Stevens, allegedly had said, “There are only four of us that know what happen that night. One is dead, you, me and Hogan.” Nine pages of evidence of an alleged conversation and those two sentences are the ones that stick out at the first trial. This alleged conversation absolutely and unequivocally did not transpire, between Mr. Stevens and myself. This alleged conversation could have happen anywhere, between the court house and city jail. Yet Officer Burmasters, by chance overhears this alleged conversation through a crack in a court room door, which was about an inch or two. There is evidence right across Canada, to suggest that police will lie to get a conviction. This Crown police witnesses's evidence doesn't link me, John C. Moore too, Mr. Lanthier's murder and robbery.

I N S U M M A R Y :
At the second trial there was roughly 1,660 pages of evidence that was presented, on September 20-30, 1982, including 56 exhibits. Even at the second trial there was absolutely no factual evidence that was presented, that linked me, John C. Moore, too Mr. Donald Lanthier's murder and robbery. There were 26 witnesses called to present their evidence in front of a Judge and Non-Aboriginal jurors and all those witnesses absolutely and unequivocally don't link me, John C. Moore too Mr. Donald Lanthier's murder and robbery.

So after two trials in front of two Non-Aboriginal Jurors in a Sault Ste. Marie Court house. Three appeals to the Appeal Courts of Ontario and one appeal to The Supreme Court of Canada and 3,455 pages of trial transcripts and 56 exhibits, there still is absolutely and unequivocally no factual evidence that links me, John Caleb. Moore, too Mr. Donald Lanthier's murder and robbery. This still leaves me waiting for justice in Canada.

INACCURATE NOTES:
Officer Gary Burn's inaccurate notes
On page 321 at lines 17-19:
Q: Now, the question says five cells. Did you not notice that when the question was asked?
A: I don't know. I may have made a mistake.

On page 328 at lines 14-21:
Q: And while you're writing it out, you have to concentrate on both what you're writing and what you're listening to?
A: Absolutely.
Q: Did you find that difficult?
A: At some point I did.
Q: Were there points when both me were speaking at the same time?
A: There may have been.

On page 332 at lines 16-27:
Q: In you mind was there ever at a previous stage of confusion as to whether that was Rick or Rod.
A: Yes, there was.
Q: And at that point in time you didn't know whether somebody had said Rick or somebody had said Rod, is that fair?
A: Not that I didn't know who said it, it wasn't quite clear if I had Rick or Rod in my writing.
Q: Well, what do you say now?
A: I'm still not sure.
Q: You're still not sure?
A: If it was Rod or Rick. I believe it was Rod, but it could have been Rick, I'm not sure.

IN SUMMARY
There was speculation that there may have been a prier conversation, but speculation is not factual.

Constable Gary Burns, His evidence became essential and crucial to the Crowns case, after Mr. Robert Hogan was declared HOSTILE OR ADVERSE witness. And after Mr. Rick Nichols openly admitted under oath that he lied and made things up on the witness stand, Officer Burn's evidence became even more essential and crucial to Mr. Norman Douglas, The Crown Attorney.

All other witnesses and their evidence, absolutely did not solidly link me to Mr. Lanthier's murder, that is fact. There was a lengthy debate over the typed version of Officer Burn's notes. His notes were inaccurate and one sided. The typed version of Officer Burns' notes, were prejudicial and one sided and Mr. Justice Walsh, ordered the typed version of his notes not to go into the jury room as an exhibit or aid for the jury. Those inaccuracies were numerous. Officer Burns' notes of the conversation of utterances, that were taken down in the City Police Station, in the holding cells on August 3, 1978. The time was supposedly from 11:45 p.m. to 2:30 a.m., between Mr. Stevens and myself. Officer Burns claimed that the conversation of utterances was two hours and 45 minutes long. The conversation of utterances did not last more than 45 minutes at tops. I fell asleep within 45 minutes of being placed in those holding cells.

Mr. Douglas, the Crown and Officer Burns, claimed that the conversation of utterances were two hours and 45 minutes long. It was impossible because within 45 minutes of being placed in the Police holding cells, I fell asleep. I was very tired, mentally exhausted and extremely stressed out, my brain started to shut down, from being charged with first degree murder and a number of conspiracy charges. Also I was charged with some unrelated charges at the same time. These were the stressors that made me very tired. I did pass out from being overly mentally and emotionally exhausted.

Also within those 45 minutes, I did mention numerous times to Mr. Stevens about my innocence. I also told him, that he knew I was innocent, so do something about it.

There was an echoing reflection coming off the walls in those holding cells at the Police station, when Mr. Stevens and I were talking. There were times when Mr. Stevens and myself spoke at the same time. It would have been impossible for anyone to determine who said what at those times.

On Wednesday, September 22, 1982, with crystal clarity, I recall seeing the Crown Attorney, Mr. Norman Douglas fold up officer Burn's notes and pass them to the clerk. After the Honourable Mr. Justice Walsh told Mr. Douglas that Officer Burn's typed version of his notes were not to go into the jury room as an exhibit. But as soon as the Honourable Justice Walsh bent his head forward to write in his notes. Mr. Norman Douglas the Crown, folded the typed version of Officer Burn's notes and with the written notes handed them to the clerk. The clerk took them and he place them on the exhibit pile.

His evidence was from a Police Officer's point of view. But his evidence did not solidly link me to the murder of Mr. Lanthier. (page: 291-334, vol.II)

Summarizing all the evidence and witnesses, it's very clear to me that there is absolutely no solid factual evidence to back the Crown's theory in R. v. Moore. There was a reasonable doubt. There was lots of speculation on the Crown Attorney's part. There was no aboriginal jury members on the jury panel. The facts are clear, I was not judge by my peers. Evidence present at both trials, in 1979 and 1982, were merely: Speculative, Hear-say, Circumstantial, three Inconsistent statements, by Rick Nichols, Robert Hogan, and Officer Gary Burn's, the key Crown witnesses Mr. Nichol’s inconsistent testimony where he openly admitted that he lied under oath, as he was up on the witness stand. Mr. Hogan who was adverse or hostile witness, who did not acknowledge his prior inconsistent statement. Robert Hogan's unsworn statement, was inaccurate. Honourable Justice Walsh, ruled that Mr. Hogan was adverse or hostile witness. His inaccurate statement was fabricated and only evidence against himself. Mr. Rick Nichol's statement, was inaccurate. He lied numerous times on the witness stand under oath and he openly admitted this. He also open admitted under oath that he was make things up he was going along. Officer Gary Burn’s inaccurate notes both hand written and the typed version of those inaccurate notes.

Officers Campbell and Burmaster's evidence was from a Police Officer's point of view. None of their evidence, solidly linked me to Mr. Lanthier's murder. They were trying to make me look bad in front of the jury, because the Crown’s case fell apart after the ruling on his key and crucial witnesses. Officer's Campbell and Burmasters evidence was exaggerated and it was from a Police Officer's point of view. It was more racism than anything else.

Officer Gary Burn's notes were inaccurate and one sided, and from a Police Officer's point of view. His notes were not permitted into the jury room with other exhibits even as an aid to the jury, but I do recall with crystal clarity seeing Mr. Norman Douglas the Crown Attorney, hand those notes, the written and typed version to the clerk. This is when his Honourable Justice Walsh's head was bent forward writing in his notes. Officer Burn's, notes were very prejudicial, one sided, and distorted, especially the typed version. Officer Burn's distorted notes were crucial, and essential to the Crown's case.

All other Police officers who gave evidence, were from a Police Officer's point of view, and their evidence did not solidly link me to Mr. Lanthier's death. They were trying to make me out to be a Mafioso type person. I am not that type of person. It was more racism than anything.

All other witnesses, and their evidence, did not solidly link me to Mr. Lanthier's death.

On a number of occasions throughout the trial, Mr. Frank Caputo, my lawyer told me, that he could have called a mistrial numerous times. The reason he did not call a mistrial was; because, he was overly confident, that he was going to win my case.

The bottom line is very clear, I absolutely did not kill Mr. Donald Lanthier. There was absolutely no plan to rob or kill Mr. Lanthier that I knew of. I am not responsible for his death. Nor am I responsible for the principal offenders, Mr. Gordon Steven's or Mr. Robert Hogan's irreversible actions. There was absolutely no agreement of any type, speculative or otherwise between, the principal offenders, Mr. Steven, Mr. Hogan, Mr. Nichol or myself. I absolutely did not have any foresight knowledge of events prior to Mr. Lanthier's death. I am very sorry that this man was killed. But I am not responsible for his death, and I can not be held accountable for the principal offenders Mr. Stevens or Mr. Hogan's irreversible actions. No one has the power to read other peoples thoughts.

It has been proven beyond a reasonable doubt that I was not present during the murder of Mr. Lanthier. The appeal courts judges, the crown, and the judges from both trials all acknowledge this one clear fact, that I was not at the scene of Mr. Lanthier's murder. How can I be guilty of Mr. Lanthier's murder than, when I was not even present at the scene of his murder?

Mr. Norman Douglas, The Crown Attorney, has failed to prove his case against me, beyond a reasonable doubt. He also failed to prove beyond a shadow of a doubt, the essential elements which is required in R. v. Moore, MENS REA (“A GUILTY MINE”) AND ACTUS REUS (“A WRONGFUL ACTION”).

Its crystal clear to me, that I did not kill Mr. Lanthier. Especially when I was not even at or even near the scene of the crime. Therefore, I did not kill Mr. Lanthier.

It is also very clear to me that I never received a fair trial. There are some very clear reasons why I didn’t get a fair trial and these reasons are: [1] There was not one aboriginal persons in the jury panel that was selected in R. v. Moore. [2] There was reasonable apprehension that the jury was racially prejudice, because of their Christian beliefs. [3] There was reasonable apprehension that the Crown Attorney was racially prejudice also, because of his Christian beliefs. Note: Christian people viewed all Aboriginal peoples as: SPAWNS OF THE DEVIL, WILD BEAST, WILD ANIMALS, BARBARIC, UNCIVILIZED, SAVAGES, PAGANS, HEATHENS, SINFUL, DECEITFUL, WORTHLESS BUMS, DRUNKARDS, WICKED, RENEGADES, NON BELIEVERS, WITCHES AND DEVIL WORSHIPPERS. The negative spiritual list goes on. There was no solid factual evidence to convict me on anything. All evidence was speculation and conjecture. Yet I am labelled a murderer, and I never killed anyone.

As the “British North American Act,” the "Canadian Bill of Rights", the "Canadian Charter of Rights and Freedoms" and the “United Nation’s Annexe of Civil and Political Rights,” guarantees.

THE ELEMENTS OF A CRIME.

The key essential elements to convict any Canadian citizen are:

Mens Rea: “A Guilty Mind.”

An intention in common!
An agreement!
Foresight knowledge of weapons!

Actus Reus: “A Wrongful Action.”

I was not at the scene of the murder!
I never actively participated in the crime!
I never had any weapons on my person!

These elements must exist at the same time and at the same time as the offence.

For all true criminal offences, it is necessary to prove two elements existed at the time of the offence: Actus reus, is Latin for “guilty act or deed.” It involves the physical conduct of the accused. For actus reus to exist, an individual must commit a prohibited action. Mens rea, is Latin for “guilty mind.” It focuses on the mental state of the accused and requires proof that the accused intended to commit a criminal wrong. There was absolutely no solid factual evidence to prove that I intended to commit a criminal wrong! None! ABSOLUTELY NONE! These elements must exist at the same time and at the same time as the offence.

The Canadian Charter of Rights and Freedoms specifies in section 11(d) that a person is , “to be presumed innocent until proven guilty (not guilty before proven innocent) according to law in a fair and public hearing by an independent and impartial tribunal.” The onus, or responsibility for proof of actus reus and mens rea, is therefore on the Crown. The Crown must prove its case beyond a reasonable doubt. This is where Mr. Norman Douglas the Crown Attorney failed! He had no case against me! His evidence was skeletal! IF THERE IS ANY DOUBT IN THE MIND OF THE JUDGE OR JURY THAT THE ACCUSED COMMITTED THE CRIME. THE ACCUSED WILL GET THE BENEFIT OF THAT DOUBT AND BE ACQUITTED.

At the second trial in September 1982, there were 25 witnesses, 10 less than the first trial.
11 of those witnesses there evidence wasn't important enough to be called to the witness stand, so the Crown read in their least important evidence. Those witnesses absolutely don't link me to Mr. Lanthier's murder and robbery.

So this leaves 14 witnesses. Four of those Crown witnesses could have been charged and convicted of being accessories after the fact to murder.
That leaves 10 witnesses. Two of those witnesses admitted under oath, that they were coached by either the Crown or the Police. This suggest a mistrial could have been called.
So this leaves 8 other Crown witnesses. So you take the 6 of those Crown witnesses, who are police and professional witnesses; Detective Sergeant Shanahan, Norman Erickson, the Forensic Analysis, Officer Allan Rains, Detective Eric Overman, Detective Hugh Morrow and Doctor Bendra Rasaiah, the Pathologist. All these six professional witnesses don't link to Mr. Lanthier's murder and robbery. There is no DNA evidence and no physical evidences linking me to Mr.
Lanthier's murder and robbery.
Constable Gary Burns, inaccurate and scratchy notes where subject to a void dire.
The final witness Detective Donald Sadowski.

Man trying to clear name forced to give DNA sample

2009-10-07T20:09:00.000-07:00

This is another of the older articles about John and his case that John has asked me to post. It is a 2006 article from a Sudbury paper about one of the many indignities he still must face as a result of his unjust 1978 conviction.

Man trying to clear name forced to give DNA sample
by Tracey Duguay, from Northern Life, December 22, 2006.

After being convicted of second-degree murder in 1978, John Moore spent 10 years in a peniteniary. He was released on bail in 1989, two years after the law used to convict him was repealed and ruled unconstitutional.

Moore was forced to report to the Ontario Provincial Police detachment in Sudbury this week to provide a DNA sample for a national database. The DNA Identification Act of 1998 allows law enforcement officers to collect samples from those convicted of serious offences.

"It's 28 years later and the OPP want a DNA sample," Moore says, shaking his head. "I've been out of jail for 18 years, contributing to this so-called 'just society.'"

His frustration is understandable given Moore has maintained his innocence in the murder conviction and has being try to clear his name for more than two decades.

He knew two men who were convicted of robbing and killing a taxi driver more than 25 years ago. Moore had spent time with them earlier in the day and was a passenger in the car that dropped the men off at a bar before the murder took place.

It was accepted as fact at his trial that Moore wasn't present during the murder. He was miles away fishing with a friend at the time. However, Moore was convicted on the grounds he should have known the murder was going to happen. This legal theory was known as culpable homicide, and the Supreme Court of Canada struck it down in 1989 because it was based on the presumption of guilt rather than innocence.

Moore was to live with the murder conviction on his record, even though he wouldn't be convicted on the same grounds today.

Moore has to provide a DNA sample because the Supreme Court of Canada upheld the legality of the DNA Identification Act being applied retroactively in 2006. This means even though the law didn't go into effect until 1998, it can be used against people convicted of a serious crime prior to this date.

Yet, even though the law used to convict Moore in 1978 was later repealed as unconstitutional, the same concept of retroactively isn't applicable.

Moore didn't want to cooperate with the summons but was advised by his lawyer to do so. If he didn't comply, a warrant for his arrest would be issued, which would be a violation of his parole and hecould be sent back to jail.

"I'm doing this in protest because it's against the Charter of Rights and Freedoms," Moore says. He plans to file an appeal and is prepared to take it to the Supreme Court of Canada.

It wouldn't be the first time Canada's highest court has heard a similar argument. In the case R v. Rodgers, where the Supreme Court of Canada ruled about the legality of DNA law being applied retroactively, concerns about a violation to the charter were raised.

In particular, Section 8 of the charter states "everyone has the right to be secure against unreasonable search and seizure." While the court acknowledged that collecting DNA samples without consent did constitute a seizure outlined in the charter, in the written decision of the court, it stated "the collection of DNA samples for data bank purposes from designated classes of convicted offenders is reasonable."

The argument is based on the fact that collecting DNA is comparable to taking fingerprints.

Denying justice is surely a crime in itself

2009-10-06T19:02:00.000-07:00

This is another of the older articles about John and his case that John has asked me to post. It is a 2008 column from a former editor of The Sault Star.

Denying justice is surely a crime in itself
by Dough Milroy, from The Sault Star, March 15, 2008.

I live in the hope that I will never have to write another line about John Moore, the man convicted of second-degree murder by two Sault judges because the prosecution managed to convince them that he "ought to have known" a murder was going to be committed.

But I won't hold my breath.

Because it has become painfully obvious over the years that most of the politicians and bureaucrats that infest Ottawa don't have the time, the will or the sense of fairness required to deal with one man and a charge the courts today wouldn't even hear.

Moore, as regular readers of this newspaper will undoubtedly recall, was convicted of second-degree murder in a Sault Ste. Marie court in 1978, even though evidence showed he was not present when Gordon Stevens and Terry Hogan killed 18-year-old cab driver Donald Lanthier in a robbery that netted them $15.

Moore was not convicted of conspiracy, just that he knew or "ought to have known" a robbery was going to take place as he had associated with the two killers earlier in the day.

Moore won a retrial but was convicted again in 1982.

He could not be convicted if tried now as the law under which he was convicted no longer exists.

In 1987 the Supreme Court of Canada overturned a murder conviction against Yvan Vaillancourt, a New Brunswicker who had participated in a robbery of a pool hall, in which his accomplice shot and killed a man, on the basis that he was not responsible or liable for the death since he could not have "objectively forseen it," effectively striking down the section of the Criminal Code that said any part to one crime in which another committed "ought to have known" the probably consequences.

It was a ruling that Moore thought might help him clear his name. It never did.

He has devoted his life to this cause since his release from prison in 1987, but despite submitting mountains of correspondence and pulling in lots of support from both within and without the political spheres, he has not made any headway with those at the upper end of the justice system. They have simply stood by the original decisions of the juries on a charge that has been declared unconstitutional by the highest court in the land.

So although Moore is continuing his fight, he is now focusing on another avenue. He is again seeking a free pardon under the provision of the Royal Prerogative of Mercy.

This route had been suggested to Moore in 1991 by Howard Hampton, then attorney general in Ontario's NDP government.

Moore took Hampton's advice but his application was rebuffed.

Doug Lewis, solicitor general in the then Progressive Conservative government, wrote him in 1993 that Sec. 690 of the Criminal Code (repealed in 2002) allows the minister of justice, on application for mercy from a convicted person, to order a new trial or refer the matter to a court of appeal for determination. He said the possibilities for remedial action under that section had to be exhausted before the matter could be referred to his ministry for consideration.

Moore continued his quest but with the same disappointing results. Although he had the support of many in and around Sudbury, where he has resided since his release from prison in 1987, including Liberal MP Diane Marleau, the John Howard Society, the Elizabeth Fry Society, he got nowhere.

J. Herve Sauve Q.C., wrote in his support in 2007. "I was Crown attorney for Sudbury and Manitoulin for 23 years. I feel I would not have prosecuted Mr. Moore for murder with those facts. It would have been unjust. Crown attorneys represent justice and the public. I feel in this case the prosecution went overboard for a conviction."

In October of 2007 Moore applied again for a free pardon but was certainly not cheered by the initial response from the solicitor general's ministry.

"In order to qualify for a pardon you must have a full five years after the warrant expiry date, that is five years after the sentence of the court has been satisfied," J. Wilson wrote. "This means that a lifer will never qualify for a pardon as they will be responsible to the criminal justice system one way or the other for life. They can use the route of the Royal Prerogative of Mercy -- a route involving the government of the day to basically negate the life sentence, a route that will only be given consideration if there are major extenuating circumstances -- and I know of only two in my 25-year career."

Sec. 748 of the Criminal Code says the Governor in Council may grant a free or conditional pardon to any person who has been convicted of an offence, the person thereafter deemed never to have committed the offence.

I see no reason why this should not be applicable to Moore.

Think about it. He was not at the scene where a murder was committed. He could not be convicted now because the law under which he was convicted no longer exists. He is not a danger to society, having become a responsible member of it, amply evidenced by the wealth of letters of support he has now and has had over the years and the fact he helped foil a robbery he happened upon at a convenience store in 2003.

Moore will have to report to a parole officer every three months for the rest of his life. He must get permission to travel. Any breach of parole could see him returned to prison.

Why not let him lead a normal life? Even if he had a debt to repay to society, surely it is repaid.

Keeping him in chains for something that is no longer a crime is surely a crime in itself.

Moore is still seeking to clear his name

2009-10-06T11:23:00.000-07:00

John has asked me to post some of the many older articles about him and his case, which I will be doing over the next little while. Here is a 2004 column from a former editor of The Sault Star.

Moore is still seeking to clear his name
by Doug Millroy, The Sault Star, p. B2, October 9, 2004.

As we sat in the coffee shop, John Moore's untouched coffee had long gone cold as he slowly passed me, one by one, the papers he hoped would eventually bring some order to his life.

They were to be part of a brief he hoped to present to the federal justice minister in Ottawa sometime within the next few weeks.

Moore, most of you will probably recall, was convicted of second-degree murder in a Sault Ste. Marie court in 1978, even though evidence showed he was not present when Gordon Stevens and Terry Hogan killed 18-year-old cab driver Donald Lanthier in a robbery that netted them $15.

There was only the tenuous claim pushed by the Crown that Moore, because he had associated with Stevens and Hogan earlier in the day, may have or should have known that they planned to commit a robbery.

No one can be convicted under such a law today because it doesn't exist. Found faulty by the Supreme Court of Canada in the 1987 appeal of Yvan Vaillancourt, who was actually at the scene when his accomplice shot and killed a man during a robbery at a pool hall, it has been struck from the books.

Moore, who came from the Cutler-Walford area but was raised mostly in Sault Ste. Marie, has been out of jail for 17 years now, but he is far from free. As a convicted murderer, he will be on parole for the rest of his life.

"If I got into trouble of any kind, I could be sent back," Moore told me, pointing out that the notorious Karla Homolka, convicted with Paul Bernardo in the slaying of Leslie Mahaffy and Kristen Frenchy, won't find herself in a similar position.

"She got 12 years, not life. She's serving it all so there will be no parole," said Moore, who has made his home in Sudbury since his release from prison but who visits his mother in the Sault on a regular basis.

Ordinarily I wouldn't think Moore would have a worry about going back. After all, here is a man who in November of last year foild a robbery he happened upon at a convenience store in Sudbury, the two fleeing robbers droppign their haul of cigarettes when Moore threw a body-block at them.

As well, he has been a model citizen, with lots of letters of support in his brief, including the backing of Sudbury MP Diane Marleau, who has been involved in his case for years.

However, considering what happened in 1978 and again in 1982, how easy it seemed to be for a zealous Crown to convince juries of his guilt, I can understand how Moore would be apprehensive about his future.

I can also understand his frustration at being forced to check in with a parole officer for the rest of his life. In a murder conviction, unjust or not, the debt to society is never deemed to have been paid in full.

Moore ahs been relentless in his efforts to get his case reviewed, but his appeals have long seemed to fall on deaf ears. However, he has taken heart from a December 2002 letter from David McNairn, counsel for the Criminal Conviction Review Group within the Department of Justice.

"I note you have written frequently to the department," McNairn wrote. "Letters alone will not secure a proper consideration of your case. The law is now clear that you must submit a fully completed application and supporting documents. When that is done, we are in a position to conduct a preliminary assessment and consider the merits of your application..."

McNairn also noted that "on July 26, 1991, the Honourable Kim Campbell, then minister of justice, denied your application on the basis that the minister will not grant a remedy under Sec. 690 (now Sections 696.1 to 696.6) of the Criminal Code as a result of a post-conviction change in the law."

Although it comes hard to me as I recall Campbell's earlier and cold dismissal of Joyce Milgaard's appeal on behalf of her son David, who, it eventually turned out, was indeed wrongfully convicted of murder, I suppose I can understand her reasoning. The law is constantly changing; it would be impossible to make it retroactive in every case.

However, having said that, I still believe Campbell should have done something for Moore and for all those who still find themselves in his position. In most other crimes, people would have done their time and moved on. Moore and those like him, bound as they are by parole restrictions, never will.

In regard to McNairn's letter, it took Moore more than six months to put together the required documents because full transcripts of his trials were required, which necessitated some fund-raising. But he is pinning his hopes on his sizeable brief to get a review of his conviction.

McNairn provided the following examples of information that might support a review application:

1. Information that establishes or confirms an alibi.

Moore says he has nine people who will support him on this.

2. The confession of another person to the crime.

Stevens and Hogan both confessed and served 25 years.

3. Information that identifies another person at the scene of the crime.

The convictions of Stevens and Hogan are ample evidence of that.

4. Scientific evidence that points to another person's guilt or supports a claim of innocence.

Nothing here, but shouldn't be required in light of answers in 2 and 3.

5. Proof that important evidence was suppressed.

Nothing here either.

6. Information that shows a witness gave false testimony.

Moore points to Rich Nichols, who was originally a suspect along with him as they had been together most of the day and who testified he was fishing with Moore at the time of the murder. But strangely, Nichols, who probably knew as much about anything involving Stevens and Hogan as Moore, was never tried.

I can understand the justice department requirements because it undoubtedly gets a lot of requests for judicial review. But I'll still always have trouble accepting that something so obviously wrong to me isn't so obviously wrong to others and thus isn't automatically and immediately corrected.

It is a thought Moore, who was 23 when he was convicted, has been living with for more than half his life.

"I'm coming 50, so I hope something happens before I'm too old to enjoy it," he said.

McNairn indicated Moore has one other shot. He could seek a free pardon under Sec. 748 of the Criminal Code. When a person is granted a free pardon, he is deemed to never have committed the offence for which the pardon is granted.

I tis obviously something to be considered, but Moore has had his sights set on clearing his name for so long he won't go down that path until he finds he can go no farther on this one.

He is not seeking compassion; he is seeking justice.

Mini Video Documentary on John's Case

2009-10-05T11:30:00.000-07:00

Mini Video Documentary on John's Case

Check out the following two videos, which are a trailer or mini-documentary made about John Moore's case by Ottawa-based filmmaker Samantha Pollock...she using these as a basis to seek funding for a full-length documentary.

The full information from the first of the videos:

The first of two parts to a Trailer/ Mini Doc about Ojibwe man, John Caleb Moore's fight for exoneration.

John Moore was convicted of second degree murder for the death of Sault Ste. Marie taxi driver Donald Lanthier.

He spent 10 years in prison, though it is acknolwedged that he was not present at the scene of the murder and two other men were charged with second and first degree counts of murder for stabbing and strangling Lanthier. John and his supporters believe John's story is one of terrible injustice and example of a long standing systemic issue - institutional racism towards aboriginal people in Canada.

This film was produced, written, edited and filmed by Samantha Pollock. A full length film is in the works.

Thandi Fletcher and Brier Dodge were present during the production of this film, and aided in some of the filming.

Please contact Samantha with any information, interest, or insight into the issues raised in this film, or if you are interested in taking part in the full length production. spolloc2@connect.carleton.ca

Letter Asking For Your Support

2009-10-04T14:53:00.000-07:00

(la version francaise suit...)

Justice and Freedom For John Moore
c/o Glenn Thibeault, MP
40 Elm Street
Suite 102a, Rainbow Centre
Sudbury, ON
P3C 1S8

Dear supporters of freedom and justice:

We are calling upon organizations and prominent individuals from across Canada to sign on to the enclosed statement, which calls for a judicial review of the unjust second degree murder conviction of John C. Moore.

John is an Ojibway man from Serpent River First Nation, near Sault Ste. Marie, Ontario. In January, 1979, he was convicted of second degree murder. Yet John was not present when the crime was committed and he played no part whatsoever in planning or executing it. His sole connection to the crime was that he spent time earlier that same day with the two men who did commit it. Over the course of two trials that were steeped in systemic racism, this was deemed sufficient for John to spend ten years in Millhaven Penitentiary. One of the most visible examples of this racism was that John was convicted by an all-white jury, despite the fact that Sault Ste. Marie and its surrounding areas have significant First Nations populations.

In a ruling on another individual's case in 1987, the Supreme Court of Canada declared the law under which John had been convicted to be unconstitutional. No one would be convicted of murder today just because of spending time with murderers earlier on the day that they committed their crime.

Yet to this day, John bears the stigma of a murder conviction. It follows him when he meets new people. It follows him when he needs to seek employment. More than that, his choices and opportunities – not to mention his dignity – are circumscribed by the parole supervision to which he will be forced to submit for the rest of his life if his conviction is not overturned. He must ask permission every time he wishes to leave Sudbury, Ontario, and this seriously limits his freedom of movement and his ability to find meaningful employment.

John has been an active participant in social justice struggles in Sudbury for many years. He remains passionately committed to seeking freedom and justice for himself, for other indigenous people who have been targeted by the justice system, and, indeed, for all people. Justice and Freedom for John Moore is a committee comprised of John and some of his core supporters in Sudbury.

John is ultimately seeking full exoneration, but at the moment his key demand is a review of his conviction by the federal Justice Department. To strengthen that demand, our committee is asking for organizations and prominent individuals from across the country to sign on to the included statement, which recognizes the injustice of John's situation and calls for a review of his conviction.

Please also find a personal statement from John enclosed in this package, a few words in support of John from Glenn Thibeault, NDP Member of Parliament for Sudbury, and a list of organizations and individuals who have already signed on to the statement.

If you wish further information about John's case or would like a speaker on the issue, please send mail to Justice and Freedom For John Moore, c/o Glenn Thibeault, MP, 40 Elm Street, Suite 102a, Rainbow Centre, Sudbury, ON, P3C 1S8. Or you can send us some email at sudburyawo@gmail.com or johnpower1955@hotmail.com.

And once you have all the information you need, please endorse the included statement and support John Moore's quest for justice and freedom and the broader struggle against racism in Canada.

Sincerely

Justice and Freedom for John Moore

Justice et liberté pour John Moore
aux soins de Glenn Thibeault, député
40, rue Elm, suite 102a
Rainbow Centre
Sudbury (Ontario)
P3C1S8

Lettre ouverte aux défenseurs de la justice et la liberté,

Les groupes et les individus bien connus de partout au Canada sont invités à signer la pétition en ligne accessible ici qui réclame une révision judiciaire de la condamnation injuste pour meurtre au 2e degré de John C. Moore.

John est un Ojibwé originaire de la Première Nation de Serpent River, près de Sault Ste Marie en Ontario. Il a été condamné pour meurtre au 2e degré en janvier 1979. Pourtant John n'était même pas là au moment du meurtre et n'a joué absolument aucun rôle dans le crime, ni dans sa conception ni dans sa mise en exécution. Le fait qu'il s'était trouvé plus tôt dans la journée dans la compagnie de ceux qui plus tard commettraient le crime était le seul rapport qu'il avait avec le crime. C'est ce seul contact établi dans le cadre de deux procès imprégnés de racisme systémique qui servait à justifier une peine de 10 ans dans le pénitencier Millhaven. La composition du jury, qui dans les deux procès consistait de jurés blancs seulement, et ce en dépit du nombre important de Premières Nations dans la région de Sault Ste Marie est un exemple des plus visibles du rôle important qu'a joué le racisme dans cette affaire.

Dans une décision rendue en 1987 dans une autre affaire, la Cour suprême du Canada a déclaré inconstitutionnelle la loi en vertu de laquelle John avait été condamné. Personne ne serait trouvé coupable de meurtre de nos jours pour avoir passé du temps avec des criminels plus tôt dans la journée ou ils commettent leur crime.

Pourtant John continue de porter la marque de sa fausse condamnation encore aujourd'hui. Elle est tout le temps là quand il rencontre des gens pour la première fois, quand il cherche un nouvel emploi. Plus qe ça, sans même parler de l'atteinte à sa dignité, ses choix, les occasions qui se présentent à lui sont limitées par des conditions auxquelles il sera tenu de se soumettre pour toujours si sa condamnation n'est pas renversée. Il doit demander à son contrôlleur judiciaire l'autorisation de sortir de la ville de Sudbury, ce qui entrave sérieusement ses déplacements à l'extérieur et ses possibilités d'emploi.

John se fait actif depuis de nombreuses années dans des luttes pour la justice sociale à Sudbury. Il est très passionnément résolu dans sa lutte pour la liberté et la justice pour lui-même et aussi à l'égard d'autres autochtones et non-autochtones faussement accusés par le système judiciaire. Justice et liberté pour John Moore est un comité de soutien regroupant John et un petit nombre des gens de la région qui appuient sa lutte.

Pour John l'objectif ultime est la disculpation. Avant d'arriver là il doit d'abord obtenir une révision de sa condamnation par le ministère de la Justice du Canada. C'est justement ça sa principale demande à l'heure actuelle. Pour appuyer sa demande, le comité de soutien invite des organisations et des individus bien connus de partout au pays à signer la pétition en ligne pour une révision de la déclaration de culpabilité en reconnaissance de l'injustice faite à John.

Vous trouverez dans ce site quelques autres documents susceptibles de vous interesser dont un mot personnel de John, une lettre d'appui du député néo-démocrat de Sudbury, Glenn Thibeault et une liste des groupes et des individus qui ont déjà signé la pétition.

Pour de plus amples renseignements au sujet de la lutte de John ou pour vous informer quant à un conférencier, veuillez écrire au comité de soutien à l'adresse suivante: Justice et liberté pour John Moore, aux soins de Glenn Thibeault, député, 40, rue Elm, suite 102a, Rainbow Centre, Sudbury (Ontario) P3C 1S8. Il est aussi possible de rejoindre les membres du comité en leur écrivant à l'adresse suivante sudburyawo@gmail.com ou encore à Johnpower1955@hotmail.com.

Une fois que vous aurez toute l'information qu'il vous faudra, on vous demande de bien vouloir signer la pétition accessible ici pour appuyer la lutte de John pour la justice et la liberté et, la lutte contre le racisme au Canada en général.

Merci de votre attention.

Justice et liberté pour John Moore

Radio Interview With John Moore

2009-10-04T14:00:00.000-07:00

Here is an interview that John did with Jason Knapp on 93.1 CKCU FM early in 2010:

A Message from John Moore

2009-10-03T14:56:00.000-07:00

What my unconstitutional second degree murder conviction boils down to be, is an innocent Aboriginal man spending ten years in prison for a murder that he absolutely and unequivocally did not commit! And another 22 years asking the Canadian Government to review my wrongful unconstitutional second degree murder conviction!

Losing everything that was part of my life, my freedom, my dignity, my young family, memories that can never be recovered. Those memories are gone forever! I lost a lot more than anyone can imagine! Among those losses were the deaths of my dad Ira Moore, who was killed in a hit and run accident in Ottawa, the passing of my grandmother Jeannie, the passing of one of my sons, the passing of my sister-in-laws, the passing of a number of Uncles, Aunts and some Cousins and the passing of some very close friends. All these losses happened while I was locked up in prison for a murder that I did not play any part in.

It was also proven beyond a shadow of a doubt, that I was not present when the murder of Mr. Donald Lanthier, the Sault Ste. Marie cab driver was committed!

John C. Moore
An innocent Aboriginal man fighting for justice and freedom in Canada.

A Message from Glenn Thibeault, NDP Member of Parliament for Sudbury

2009-10-02T14:58:00.000-07:00

John Moore has been seeking justice since 1978. He has walked a long road since then, from a father of three living in Sault Ste. Marie, and into a prejudiced legal system. The promise of his younger life, as a college graduate, chef and a family man, was washed away when he was convicted for a crime he did not commit.

Enduring a lifetime on parole, John has proven his determination to clear his name. He has worked tirelessly to maintain his faith in the system which failed him, pursuing appeals all the way to the Supreme Court. Since his trial, the law he was convicted under was ruled unconstitutional, and yet his requests for review to successive Federal Ministers of Justice have fallen on deaf ears.

As a native man, John Moore received the same treatment from the Canadian justice system that all aboriginals could expect, when in 1978 an all-white jury ruled on his case in a city surrounded by native communities. Thirty years later, he deserves more from all of us. Please help me find justice for John Moore.

Sincerely,

Glenn Thibeault, MP

Signers So Far

2009-10-01T14:59:00.000-07:00

This is a list of organizations and individuals who have signed the statement in support of John. Please get your organization to do the same!

Vous trouverez ci-dessous la liste de groupes et d'individus qui ont déjà signé la pétition en ligne. Demandez à votre organisation de l'endosser aussi.

Organizations/Organisations:

Aboriginal People's Alliance of Northern Ontario
Sudbury and District Labour Council
Canadian Union of Postal Workers
Ontario Coalition Against Poverty
Sudbury Against War and Occupation
Indigenous Peoples Solidarity Movement -- Ottawa
Ontario Public Interest Research Group Carleton
Laurentian Association of Mature and Part-time Students
Cherish the Language, Inc.
Sudbury First Nations Church
Common Cause Ontario
Le Frigo Vert, Montreal

Individuals in the Sudbury Area/ Individus de la région de Sudbury:

John Closs, President, Sudbury and District Labour Council
Glenn Thibeault, Member of Parliament, New Democratic Party
John Rimore, Director, John Howard Society of Sudbury
David Sylvestre, former Green Party federal candidate
Will Morin, former First Peoples National Party federal candidate
Rene Fortin, labour activist, Canadian Union of Public Employees (retired)
A.S. McGregor, Professor, Classics, Laurentian University (retired)
Gary Kinsman, Professor, Sociology, Laurentian University
Alexis Shotwell, Professor, Philosophy and English, Laurentian University
Cheryle Partridge, Professor, School of Native Human Services, Laurentian University
Robert Pilotte, deacon, Roman Catholic Church (retired)
Denis Michel, lawyer
Cindy Hatch, owner, Kwick Kopy Printing
Michael Chirka, owner, Kwick Kopy Printing
David Starbuck, labour activist, Ontario Public Service Employees Union
J. Goulet, member, Canadian Union of Postal Workers
Tanya Ball, Myths and Mirrors
Deborah Brideau
Theresa Moore
Bill Kesek
Angela Kesek
Chase Read
Louise Read
Edmund Newton
William Francis Bruhmuller
M. Lorraine Macintyre
James Burke
Clayton Spencer
Thomas Tourville
Clarissa Lassaline
Paul Lavrin
Larry Bouchard
Pierrette Desmoreaux
Rick Desmoreaux
Douglas Millroy
Barbara Millroy
Jody Nadjiwon
Sandra Lautenshalger
Murphy R. Wesley
Chris Dixon
Matthew Sutherland
Karray Sawatis
Ursula Spence
Louise Dube
Joyce Trudeau
Alex Murray
Tania Van Norman
Dawn Graham
Timothy Thomas Folz
Alex dela Morandiere
Connie dela Morandiere
Chris R. Penny

Individuals Beyond Sudbury/Individus à l'extérieur de Sudbury:

Roxanne Dunbar-Ortiz, author and activist, San Francisco
John Clarke, organizer, Ontario Coalition Against Poverty, Toronto
Charles C. Roach, founding member of the Black Action Defence Committee and lawyer, Toronto
Yves Engler, author and activist, Montreal
Jaggi Singh, activist with No One Is Illegal-Montreal and Solidarity Without Borders, Montreal
Joan Kuyek, community organizer and author, Ottawa
Doreen Spence, activist and Cree elder, Calgary
Roger Medahbie, artist, Serpent River First Nation
Dave Bleakney, National Union Representative, Canadian Union of Postal Workers, Ottawa
Marion Pollack, Canadian Union of Postal Workers, National Office, Ottawa
Nelson Ross Laguna, Provincial Representative, Ontario Public Service Employees Union (OPSEU)
Patrizia Gentile, Professor, Women and Gender Studies, Carleton University
Pauline Rankin, Professor, School of Canadian Studies, Carleton University
Michelle Cho, organizer, Urban Alliance on Race Relations, Toronto
Anna Willats, Professor, George Brown College, Toronto
Dee LeComte, broadcaster, Montreal
Francois Guindon, activist, Rights Action Gatineau
Sandra Coffe, journalist and organizers, Canada
David Finkle, artist, Ottawa
John Liss, lawyer, Toronto
Erin Seatter, Calgary
Shelly Bazuik, with Le Frigo Vert, Montreal
Ira Rabinovitch, Toronto
Melanie Robitaille, Toronto
Caelie Frampton, Vancouver
Al Robinson, Ottawa
Paul Chislett, Windsor
Kyle Porter, Toronto
Kate Chung, Toronto
Debra Smith Joy, Naples, Florida
Jon Bullick
Kevin Clarkson
Antonio Menchells

(Unless otherwise indicated, the organizational affiliations of individuals who have signed onto this statement are presented for the purposes of identification only and do not necessarily indicate that any position has been taken by the organization.

(Sauf indication contraire, le nom de groupe suivant le nom de l'individu sert uniquement à établir l'identité et n'indique pas une position prise par le groupe en question).

A Message from Denis Michel, John's Lawyer

2009-10-01T11:37:00.000-07:00

October 8, 2009.

TO WHOM IT MAY CONCERN

RE: John Caleb Moore

I have known John Moore for several years and in fact have reviewed his entire case including the transcripts of his trials and the decisions on his appeals.

John Moore is an aboriginal person who was twice tried by a Jury made up of caucasians told to be members of his peers. The alleged crime took place in Sault Ste Marie which within a radius of 15 kilometers has approximately 8 reserves from which a Jury of his peers could have been selected. It is interesting than aboriginal person in our day could not have any members of his Jury in no less than two Jury trials of aboriginal descent despite the high number of aboriginal people living in and around Sault Ste Marie, Ontario.

John Moore was also convicted on a section of the Criminal Code which no longer pemits convictions upon people who were not at the scence of a murder crime and did not partake in its planning or execution, nor did Mr. Moore have any subjective foresight that a murder would occur at the hand of Mr. Gordon Stevens and Mr. Robert Hogan. This archaic law permitted the conviction of Mr. Moore was rectified in 1987 and despite that fact, nothing has been done to rectify the harm that has been caused to Mr. Moore who spent 10 years in Millhaven Penitentiary and is on life parole.

Imagine spending 10 years in a federal penitentiary for a crime that was committed while you were at home with your pregnant wife expecting the birth of your second son. Then imagine being told that your father passed away and you cannot be released to go to his funeral. Then imagine your sun passing away and you are told that you cannot attend his funeral. Is this the way we wish our First Nations people to be treated or is it time to own up to the mistakes that were made in the case of JOHN CALEB MOORE and remove the conviction for murder form his record and give him back the dignity that was so unjustly taken away from him?

DENIS A. MICHEL
Barrister and Solicitor

Media Release for Oct 22 Media Conference

2009-09-23T16:14:00.000-07:00

Please note that due to unexpected logistical problems, the media conference did not occur quite as anticipated in this release. However, this was what was sent to the media on Oct. 21, and this article was one of the pieces that resulted.

NEW CAMPAIGN BY JOHN MOORE AGAINST UNJUST CONVICTION

SUDBURY, ONTARIO, October 21, 2009 – On Thursday, October 22, 2009, Justice and Freedom for John Moore will host a media conference to unveil a new campaign seeking a review of John Moore's unjust conviction for second degree murder. The event will be at the office of the Aboriginal Peoples Alliance of Northern Ontario (APANO), 66 Elm Street, Sudbury, at 11 am

The media conference will feature speakers who have signed on to a new statement in support of Moore's demand for a federal review of his unjust conviction. These speakers come out of the local Native, trade union, and education sectors. They will include Susan Cole of APANO; John Closs, President of the Sudbury and District Labour Council; Will Morin, local indigenous activist and educator; Rene Fortin, retired activist from the Canadian Union of Public Employees; and Gary Kinsman, Professor of Sociology at Laurentian University. Moore himself will also speak abou the new campaign, and about his recent participation in the Organizing for Justice Conference in Ottawa.

Moore has been actively involved in struggles for social justice in Sudbury for many years. Convicted under a law that was ruled unconstitutional in another case in the late '80s, John continues to have his life and his opportunities limited by a conviction by an all-white jury for a crime that even the courts admit he was not present for. Yet the federal government has steadfastly refused to review this injustice, and a new support committee, Justice and Freedom for John Moore, has begun to build a broader campaign in support of Moore. Already organizations and prominent individuals from Sudbury and from across North America have begun to sign onto the statement calling on the federal government to end its stonewalling and to conduct a review of Moore's conviction. The statement reads:

John C. Moore, an Ojibway man from Serpent River First Nation, was convicted of second degree murder in 1978. This happened despite the fact that he was not present when the crime was committed and had no role whatsoever in perpetrating it, and was based solely on him having spent time earlier that day with the individuals who committed the crime. His trials were tainted with systemic racism. The law under which he was convicted was ruled unconstitutional in 1987, and noone would be convicted under similar circumstances today. Yet Moore continues to bear the burden of the stigma of this conviction. He must regularly report to a parole officer and must ask permission if he wishes to leave the city of Sudbury, Ontario, which is impeding his freedom of movement and his capacity to find meaningful work. For all of these reasons, and in recognition of the long history of indigenous people being targeted unfairly by the Canadian justice system, we, the individuals and groups listed below, call upon the Government of Canada to conduct a review of Moore's conviction.

Initial signers include the Sudbury and District Labour Council, the Canadian Union of Postal Workers (CUPW), the Indigenous Peoples Solidarity Movement (Ottawa), Sudbury Against War and Occupation, the Ontario Coalition Against Poverty, and the Laurentian Association of Mature and Part-time Students. Along with the speakers listed above, local individual signers include many ordinary Sudburians as well as Glenn Thibeault, MP. Individual signers from beyond Sudbury include Roxanne Dunbar-Ortiz, an author and long-time indigenous activist based in San Francisco; Charles C. Roach, a lawyer and long-time activist based in Toronto's African-Canadian communities; Dave Bleakney, a National Union Representative with CUPW; Doreen Spence, an activist and Cree elder based in Calgary; and Joan Kuyek, a community organizer and author based in Ottawa.

Justice and Freedom for John Moore is a committee composed of Moore himself and some of his core supporters from the Sudbury area. For more information, please call ________ at ___-___-____ or or email ______@_____________. For ongoing information about the campaign, please see http://justiceandfreedomforjohnmoore.blogspot.com/.

Sudbury Star Article: Ottawa students plan Moore documentary

2009-09-22T16:13:00.000-07:00

Ottawa students plan Moore documentary
by Bob Vaillancourt, from The Sudbury Star, October 23, 2009.

A group of University of Ottawa students is making a documentary on Sudburian John Moore's struggle to clear himself of what he says is a wrongful murder conviction.

Moore, 53, was convicted in the June 30, 1978, death of taxi driver Donald Lanthier in Sault Ste. Marie and was sentenced to prison for life.

He is on parole after being released from prison in 1987 after nearly a decade behind bars in a federal prison.

Moore was in Ottawa last week participating in a panel conference on indigenous struggles against racism when he met Samantha Pollock and two other students from the university, who became interested in his case. They decided to make the documentary as part of their journalism studies.

Pollock will be in town this weekend shooting scenes for the documentary. She and her colleagues have already shot Moore in various locales in Ottawa, including the Parliament building, the Supreme Court of Canada building and the offices of the federal justice minister.

Moore has started a blog at justiceandfreedomforjohnmoore. blogs pot.comin which he invites people to sign a petition calling on the federal government to review his case.

Already, the campaign has garnered dozens of signatures, some as far away as San Francisco.

"When we get enough people to sign up, then we can send it to the justice minister and say, 'look. The people that signed up for this blog, they want you to do something and do something fast and stop stonewalling.' "

Reading "all those people's names is just kind a cool," Moore said.

As a result of his presentation in Ottawa last week, Moore was invited back to Ottawa next week to speak at the "Celebration of First Peoples in Canada" event at Saint Paul University.

Moore's conviction was based on the fact that he was with the two men who killed Lanthier hours before the slaying.

The prosecuting attorney argued that, as a result, he must have known what was going to happen and did nothing to stop the killing.

In 1987, the same year that Moore made day parole, the Supreme Court of Canada struck down that section of the law as being unconstitutional.

Moore said he began his campaign to clear his name in 1983 with a letter to then Justice minister Mark McGuigan.

"I got a 10-minute meeting," but no results, said Moore.

He didn't stop there. Moore has dealt with justice ministers and their staff through two governing parties.

And even though the law under which he was convicted was ruled unconstitutional, he has been unsuccessful in having his conviction overturned.

"They (justice department officials) keep telling me there is nothing new" to warrant intervention in his conviction, he said.

Moore said he gets the feeling from his dealings with just ice department officials that they feel any relief granted him would have to be applied to anyone else who was convicted under the unconstitutional law.

Speaking Engagements by John So Far

2009-09-13T10:36:00.000-07:00

The following is a list of speaking engagements that John has done so far about his case and about issues of racism in the justice system more generally. If you know of a group that would be interested in hearing him speak, please let us know!

Metro Guy-Concordia, School of Community and Public Affairs, Montreal.
Montreal Native Friendship Centre
Celebration of First People in Canada, Saint Paul University, Ottawa
Organizing for Justice Conference, Ottawa
Will Morin's Class, University of Sudbury
Gary Kinsman's Sociology Class, Laurentian University, Sudbury
Aboriginal People's Alliance, Sudbury
Paula's Psychology class, Cambrian College, Sudbury
Native Correctional Workers program, Cambrian College, Sudbury
Native Studies program, Cambrian College, Sudbury
St. Benedict Catholic Secondary School, Sudbury
Ecoloe Intermediary Camplain, Chelmsford
Lockerby Composite School, Sudbury
Barbara Burton's Law class, University of Sudbury
Native Social Work class, University of Sudbury

2009-09-12T17:02:00.000-07:00

The following is the judgment in the case, R. v. Vaillncourt, in which the Supreme Court of Canada ruled unconstitutional the section under which John Moore was convicted. Though this ruling was made in 1987, nothing has been done to rectify the injustice represented by John's earlier conviction under the disallowed section. This material has been obtained from Supreme Court website.

R. v. Vaillancourt, [1987] 2 S.C.R. 636

Yvan Vaillancourt Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General for Ontario Intervener

indexed as: r. v. vaillancourt

File No.: 18963.

1986: December 10; 1987: December 3.

Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard*, Lamer, Wilson, Le Dain and La Forest JJ.

*Chouinard J. took no part in the judgment.

on appeal from the court of appeal for quebec

Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Presumption of innocence ‑‑ Constructive murder ‑‑ Death caused by accomplice during robbery ‑‑ Proof of intentional dangerous conduct causing death substituted for proof of mens rea with respect to death of victim ‑‑ Accused's conviction possible notwithstanding existence of reasonable doubt on essential element ‑‑ Whether s. 213(d) of the Criminal Code violates ss. 7 or 11(d) of the Charter ‑‑ If so, whether such violation justifiable under s. 1 of the Charter.

Criminal law ‑‑ Constructive murder ‑‑ Fundamental justice ‑‑ Presumption of innocence ‑‑ Death caused by accomplice during robbery ‑‑ Proof of intentional dangerous conduct causing death substituted for proof of mens rea with respect to death of victim ‑‑ Accused's conviction possible notwithstanding existence of reasonable doubt on essential element ‑‑ Whether s. 213(d) of the Criminal Code violates ss. 7 or 11(d) of the Charter ‑‑ If so, whether such violation justifiable under s. 1 of the Charter.

During an armed robbery in a pool hall, appellant's accomplice shot and killed a client. The accomplice managed to escape but appellant was arrested and convicted of second degree murder as a party to the offence pursuant to ss. 21(2) and 213(d) of the Criminal Code. Section 213(d) provides that "Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit ... robbery ... whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if ... he uses a weapon or has it upon his person during or at the time he commits or attempts to commit the offence ... and the death ensues as a consequence." At his trial before judge and jury, appellant testified that at the time of the robbery, he was certain that the gun in possession of the accomplice was not loaded. He stated that they had agreed to commit the robbery armed only with knives and when, on the night of the crime, the accomplice arrived with a gun he insisted that it be unloaded. The accomplice removed three bullets from the gun and gave them to the appellant. Appellant's glove containing the three bullets was recovered by the police at the scene of the crime. The Court of Appeal dismissed appellant's appeal from conviction. In this Court, he challenged the constitutional validity of s. 213(d) of the Criminal Code. This appeal raises two constitutional questions: (1) Is section 213(d) of the Code inconsistent with either ss. 7 or 11(d) of the Charter and, therefore, of no force or effect? (2) If not, is the combination of ss. 21 and 213(d) of the Code inconsistent with either ss. 7 and 11(d) of the Charter and is s. 21 therefore of no force or effect in the case of a charge under s. 213(d)?

Held (McIntyre J. dissenting): The appeal should be allowed and a new trial ordered. The first constitutional question should be answered in the affirmative. No answer was given to the second constitutional question.

Per Dickson C.J. and Estey, Lamer and Wilson JJ.: Prior to the enactment of the Charter, Parliament had full legislative powers with respect to criminal law, including the determination of the essential elements of any given crime. But the Charter has restricted these powers. Under section 7, if a conviction will result in a deprivation of the life, liberty or security of the person of the accused, then Parliament must respect the principles of fundamental justice. One of these principles is that a minimum mental state is an essential element of an offence. However, because of the special nature of the stigma attached to a conviction for murder, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime. While the current view of the justices is that such a conviction cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight, for the purpose of this appeal, it is sufficient to say that, as a principle of fundamental justice, there cannot be a conviction in the absence of proof beyond a reasonable doubt of at least objective foreseeability.

The presumption of innocence in s. 11(d) of the Charter is offended when an accused may be convicted despite the existence of a reasonable doubt on an essential element of the offence. Where Parliament substituted proof of a different element for proof of an essential element, such substitution is constitutionally valid if, upon proof beyond reasonable doubt of the substituted element, it would be unreasonable for the trier of fact or a jury not to be satisfied beyond a reasonable doubt of the existence of the essential element. Therefore, an accused cannot be found guilty of murder absent proof beyond a reasonable doubt of at least objective foreseeability, and a murder provision which allows a conviction in the absence of proof beyond reasonable doubt of at least that essential element infringes ss. 7 and 11(d) of the Charter.

In the present case, s. 213(d) of the Code is prima facie in violation of ss. 7 and 11(d) of the Charter. The mens rea required for s. 213 consists of the mens rea for the underlying offence and the intent to commit one of the acts set forth in paras. (a) to (d). Section 213 does not completely exclude the need to prove any objective foreseeability. Rather, it has substituted for proof beyond a reasonable doubt of objective foreseeability, if that is the essential element, proof beyond a reasonable doubt of certain forms of intentional dangerous conduct causing death. But this substitution is not constitutionally valid because it is still possible that, notwithstanding proof beyond a reasonable doubt of the matters set forth in paras. (a) and (d), a jury could reasonably be left in doubt as to whether the accused ought to have known that death was likely to ensue.

Section 213(d) cannot be saved by s. 1 of the Charter. It is clear that Parliament's objective to deter the use or carrying of a weapon in the commission of certain offences, because of the increased risk of death, was of sufficient importance for the purpose of s. 1. However, the measures adopted were not reasonable and demonstrably justifiable. While these measures appear to be rationally connected to the objective, they unduly impair the rights and freedoms in question. Indeed, it is not necessary to convict of murder persons who did not intend or foresee the death and who could not even have foreseen the death in order to deter others from using or carrying weapons. If Parliament wishes to deter the use or carrying of weapons, it should, as in s. 83 of the Code, punish the use or carrying of weapons.

Per Beetz and Le Dain JJ.: For the reasons given by Lamer and La Forest JJ., s. 213(d) of the Criminal Code does not conform to the principles of fundamental justice entrenched in the Charter and cannot be saved under s. 1. For the reasons given by Lamer J., s. 213(d) also violates s. 11(d) of the Charter and cannot be justified under s. 1. Given these conclusions, it is not necessary to decide whether there exists a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight.

Per La Forest J.: Because of the stigma attached to a conviction for murder, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime, namely one referable to causing death. In addition to the intention to cause death, this can include a closely related intention such as intention to cause bodily harm likely to result in death combined with recklessness as to that result. It is sufficient to say in this case that the mental element required by s. 213(d) of the Criminal Code is so remote from the intention specific to murder that a conviction under that paragraph violates fundamental justice. The provision is so broad that under it a person may be found guilty of murder even though the death was the result of an accident.

Section 213(d) of the Code cannot be saved by s. 1 of the Charter. The objective of discouraging the use of weapons in the commission of crimes can be achieved by means other than attaching the stigma of a conviction for murder to a person who has caused death in the circumstances like those described in the provision.

Per McIntyre J. (dissenting): The two constitutional questions should be answered in the negative. Parliament has decided that possession and use of weapons in the course of the commission of offences is a gravely aggravating factor and has chosen to term a killing arising in the circumstances described in s. 213(d) as murder. While it may be illogical to characterize an unintentional killing as murder, no principle of fundamental justice is offended because serious criminal conduct, involving the commission of a crime of violence resulting in the killing of a human being, is classified as murder and not in some other manner.

In this case, the accused was properly convicted of murder under the combined effect of ss. 21(2) and 213(d) of the Code. The terms of s. 21(2) were fully met as there was evidence of the accused's active participation in the commission of the robbery, the underlying offence. The section gives expression to a principle of joint criminal liability long accepted and applied in the criminal law, and there is no basis upon which one could exempt conduct which attracts criminal liability, under s. 213 of the Code, from the application of that principle.

Cases Cited

By Lamer J.

Considered: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Corporation of the City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; disapproved: R. v. Bezanson (1983), 8 C.C.C. (3d) 493; referred to: R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Swietlinski v. The Queen, [1980] 2 S.C.R. 956; Reference re Validity of s. 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, aff'd [1951] A.C. 179; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Vasil, [1981] 1 S.C.R. 469; R. v. Trinneer, [1970] S.C.R. 638; R. v. Farrant, [1983] 1 S.C.R. 124; R. v. Ancio, [1984] 1 S.C.R. 225; People v. Aaron, 299 N.W.2d 304 (1980); State v. Doucette, 470 A.2d 676 (1983); Sir John Chichester's Case (1647), Aleyn 12, 82 E.R. 888; Hull's Case (1664), Kelyng, J. 40; R. v. Plummer (1702), Kelyng, J. 109, 84 E.R. 1103; R. v. Woodburne and Coke (1722), 16 St. Tr. 53.

By La Forest J.

Referred to: Rowe v. The King, [1951] S.C.R. 713.

By McIntyre J. (dissenting)

R. v. Munro and Munro (1983), 8 C.C.C. (3d) 260; R. v. Trinneer, [1970] S.C.R. 638; R. v. Ancio, [1984] 1 S.C.R. 225.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d).

Constitution Act, 1867, s. 91(27).

Criminal Code, R.S.C. 1970, c. C‑34, ss. 21(2), 83 [rep. & subs. 1976‑77, c. 53, s. 3], 205(5)(a), 212(a)(i), (ii), (c), 213 [am. 1974‑75‑76, c. 93, s. 13; c. 105, s. 29 item 1(4)].

Homicide Act, 1957, 5 & 6 Eliz. 2, c. 11 (U.K.)

Authors Cited

Burns, Peter and R. S. Reid. "From Felony Murder to Accomplice Felony Attempted Murder: The Rake's Progress Compleat?" (1977), 55 Can. Bar Rev. 75.

Canada. Law Reform Commission. Homicide (Working Paper 33). Ottawa, 1984.

Canada. Law Reform Commission. Recodifying Criminal Law (Report 30). Ottawa, 1986.

Coke, Sir Edward. The Third Part of the Institutes of the Laws of England. London: W. Clarke & Sons, 1817.

Dalton, Michael. Countrey Justice. London, 1619.

East, Edward Hyde. Pleas of the Crown, vol. 1. London, 1803.

Edwards, J. Ll. J. "Constructive Murder in Canadian and English Law" (1961), 3 Crim. L.Q. 481.

Foster, Sir Michael. Crown Law. Oxford, 1762.

Grant, Isabel and A. Wayne MacKay. "Constructive Murder and the Charter: In Search of Principle" (1987), 25 Alta. L. Rev. 129.

Hale, Sir Matthew. History of the Pleas of the Crown, vol. 1, 1736.

Hawkins, William. Pleas of the Crown, vol. 1, 1716.

Hooper, Anthony. "Some Anomalies and Developments in the Law of Homicide" (1967), 3 U.B.C. L. Rev. 55.

Lanham, David. "Felony Murder‑‑Ancient and Modern" (1983), 7 Crim. L.J. 90.

Mewett, Alan W. and Morris Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.

Parker, Graham. An Introduction to Criminal Law. Toronto: Methuen, 1977.

Perkins, Rollin M. and Ronald N. Boyce. Criminal Law, 3rd ed. Mineola, N.Y.: Foundation Press, 1982.

Stephen, Sir James Fitzjames. A History of the Criminal Law of England, vol. 3. London: MacMillan & Co., 1883.

Stephen, Sir James Fitzjames. Stephen's Digest of the Criminal Law, 9th ed. By Lewis Frederick Sturge. London: Sweet & Maxwell, 1950.

Stuart, Don. Canadian Criminal Law. Toronto: Cars‑ wells, 1982.

Willis, John. "Case and Comment" (1951), 29 Can. Bar Rev. 784.

APPEAL from a judgment of the Quebec Court of Appeal (1984), 31 C.C.C. (3d) 75, dismissing the accused's appeal from his conviction on a charge of second degree murder. Appeal allowed and new trial ordered, McIntyre J. dissenting.

Michel Marchand and Michael Brind'Amour, for the appellant.

Bernard Laprade and Jean‑François Dionne, for the respondent.

James K. Stewart, for the intervener.

The judgment of Dickson C.J. and Estey, Lamer and Wilson JJ. was delivered by

Lamer J.‑‑

Introduction

1 Vaillancourt was convicted of second degree murder following a trial before a judge and jury in Montréal. He appealed to the Quebec Court of Appeal, arguing that the judge's charge to the jury on the combined operation of ss. 213(d) and 21(2) of the Criminal Code, R.S.C. 1970, c. C‑34, was incorrect. His appeal was dismissed and the conviction was affirmed: (1984), 31 C.C.C. (3d) 75. Before this Court, he has challenged the constitutional validity of s. 213(d) alone and in combination with s. 21(2) under the Canadian Charter of Rights and Freedoms.

The Facts

2 For the purposes of this appeal, the Crown does not contest the following statement of the facts.

3 The appellant and his accomplice committed an armed robbery in a pool hall. The appellant was armed with a knife and his accomplice with a gun. During the robbery, the appellant remained near the front of the hall while the accomplice went to the back. There was a struggle between the accomplice and a client. A shot was fired and the client was killed. The accomplice managed to escape and has never been found. The appellant was arrested at the scene.

4 In the course of his testimony, the appellant said that he and his accomplice had agreed to commit this robbery armed only with knives. On the night of the robbery, however, the accomplice arrived at their meeting place with a gun. The appellant said that he objected because, on a previous armed robbery, his gun had discharged accidentally, and he did not want that to happen again. He insisted that the gun be unloaded. The accomplice removed three bullets from the gun and gave them to the appellant. The appellant then went to the bathroom and placed the bullets in his glove. The glove was recovered by the police at the scene of the crime and was found at trial to contain three bullets. The appellant testified that, at the time of the robbery, he was certain that the gun was unloaded.

Constitutional Questions

5 Before this Court, the following constitutional questions were formulated:

1. Is section 213(d) of the Criminal Code inconsistent with the provisions of either s. 7 or s. 11(d) of the Canadian Charter of Rights and Freedoms, and, therefore, of no force or effect?

2. If not, is the combination of s. 21 and s. 213(d) of the Criminal Code inconsistent with the provisions of either s. 7 or s. 11(d) of the Canadian Charter of Rights and Freedoms and is s. 21 of the Criminal Code therefore of no force or effect in the case of a charge under s. 213(d) of the Criminal Code?

The Law

Narrowing the Issue

6 The appellant has framed his attack on s. 213(d) of the Code in very wide terms. He has argued that the principles of fundamental justice require that, before Parliament can impose any criminal liability for causing a particular result, there must be some degree of subjective mens rea in respect of that result. This is a fundamental question with far reaching consequences . If this case were decided on that basis, doubt would be cast on the constitutional validity of many provisions throughout our Criminal Code, in particular s. 205(5)(a), whereby causing death by means of an unlawful act is culpable homicide, and s. 212(c) whereby objective foreseeability of the likelihood of death is sufficient for a murder conviction in certain circumstances.

7 However, the appellant was convicted under s. 213(d) and the constitutional question is limited to this provision. In my opinion, the validity of s. 213(d) can be decided on somewhat narrower grounds. In addition, the Attorney General of Canada has seen fit not to intervene to support the constitutionality of s. 213(d), which is clearly in jeopardy in this case, though he may have intervened to support ss. 205(5)(a) and 212(c) and other similar provisions. I will thus endeavour not to make pronouncements the effect of which will be to predispose in obiter of other issues more properly dealt with if and when the constitutionality of the other provisions is in issue. I do, however, find it virtually impossible to make comments as regards s. 213(d) that will not have some effect on the validity of the rest of s. 213 or that will not reveal to some extent my views as regards s. 212(c). However, the validity of those sections and of paras. (a) to (c) of s. 213 is not in issue here and I will attempt to limit my comments to s. 213(d).

8 The appellant has also challenged the combined operation of ss. 21(2) and 213(d). Given my decision on the validity of s. 213(d) and in view of the importance of s. 21(2) and the absence of the Attorney General of Canada, I do not find it necessary or advisable to deal with s. 21(2) in this appeal.

Analysis of s. 213(d)

Section 213(d) in the Context of the Murder Provisions

9 It is first necessary to analyze s. 213(d) in the context of the other murder provisions in the Code in order to determine its true nature and scope. Murder is defined as a culpable homicide committed in the circumstances set out at ss. 212 and 213 of the Code. There is a very interesting progression through s. 212 to s. 213 with respect to the mental state that must be proven.

10 The starting point is s. 212(a)(i), which provides:

212. Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death,

This clearly requires that the accused have actual subjective foresight of the likelihood of causing the death coupled with the intention to cause that death. This is the most morally blameworthy state of mind in our system.

11 There is a slight relaxation of this requirement in s. 212(a)(ii), which provides:

212. Culpable homicide is murder

(a) where the person who causes the death of a human being

...

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

Here again the accused must have actual subjective foresight of the likelihood of death. However, the Crown need no longer prove that he intended to cause the death but only that he was reckless whether death ensued or not. It should also be noted that s. 212(a)(ii) is limited to cases where the accused intended to cause bodily harm to the victim.

12 Section 212(c) provides:

212. Culpable homicide is murder

...

(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

In part, this is simply a more general form of recklessness and thus the logical extension of s. 212(a)(ii), in that it applies when the accused "does anything that he knows . . . is likely to cause death" (emphasis added). However, there is also a further relaxation of the mental element required for murder in that it is also murder where the accused "does anything that he . . . ought to know is likely to cause death" (emphasis added). This eliminates the requirement of actual subjective foresight and replaces it with objective foreseeability or negligence.

13 The final relaxation in the definition of murder occurs at s. 213:

213. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or treason or an offence mentioned in section 52 (sabotage), 76 (piratical acts), 76.1 (hijacking an aircraft), 132 or subsection 133(1) or sections 134 to 136 (escape or rescue from prison or lawful custody), 143 or 145 (rape or attempt to commit rape), 149 or 156 (indecent assault), subsection 246(2) (resisting lawful arrest), 247 (kidnapping and forcible confinement), 302 (robbery), 306 (breaking and entering) or 389 or 390 (arson), whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if

(a) he means to cause bodily harm for the purpose of

(i) facilitating the commission of the offence, or

(ii) facilitating his flight after committing or attempting to commit the offence,

and the death ensues from the bodily harm;

(b) he administers a stupefying or overpowering thing for a purpose mentioned in paragraph (a), and the death ensues therefrom;

(c) he wilfully stops, by any means, the breath of a human being for a purpose mentioned in paragraph (a), and the death ensues therefrom; or

(d) he uses a weapon or has it upon his person

(i) during or at the time he commits or attempts to commit the offence, or

(ii) during or at the time of his flight after committing or attempting to commit the offence,

and the death ensues as a consequence.

Under this provision, it is murder if the accused causes the victim's death while committing or attempting to commit one of the enumerated offences if he performs one of the acts in paras. (a) to (d). Proof that the accused performed one of the acts in paras. (a) to (d) is substituted for proof of any subjective foresight or even objective foreseeability of the likelihood of death.

14 I should add that there appears to be a further relaxation of the mental state when the accused is a party to the murder through s. 21(2) of the Code as in this case. However, as I have said, it is sufficient to deal with s. 213(d) in order to dispose of this appeal.

The Historical Development of s. 213

15 Although the concept of felony murder has a long history at common law, a brief review of the historical development of s. 213 indicates that its legitimacy is questionable.

16 In the early history of English criminal law, murdrum or murder referred to a secret killing or the killing of a Dane or, later, a Norman by an Englishman and to the fine levied on the township where the killing occurred. By the early 14th century, the fines had been abandoned and murder had come to be the name used to describe the worst kind of homicide. The expression "malice aforethought" was subsequently adopted to distinguish murder from manslaughter, which denoted all culpable homicides other than murder. Malice aforethought was not limited to its natural and obvious sense of premeditation, but would be implied whenever the killing was intentional or reckless. In these instances, the malice was present and it is the premeditation which was implied by law.

17 Coke took this one step further and implied both the malice and the premeditation in cases where the death occurred in the commission of an unlawful act. He wrote in The Third Part of the Institutes of the Laws of England (London: W. Clarke & Sons, 1817), at p. 56:

Unlawfull. If the act be unlawful it is murder. As if A. meaning to steale a deere in the park of B, shooteth at the deer, and by the glance of the arrow killeth a boy that is hidden in a bush: this is murder, for that the act was unlawfull, although A. had no intent to hurt the boy, nor knew not of him. But if B. the owner of the park had shot at his own deer, and without any ill intent had killed the boy by the glance of his arrow, this had been homicide by misadventure, and no felony.

So if one shoot at any wild fowle upon a tree, and the arrow killeth any reasonable creature afar off, without any evill intent in him, this is per infortunium: for it was not unlawful to shoot at the wilde fowle: but if he had shot at a cock or hen, or any tame fowle of another mans, and the arrow by mischance had killed a man, this had been murder, for the act was unlawfull.

18 Coke's statement of the unlawful act murder rule has been much criticized. Stephen demonstrated that Coke's statement was not supported by the authorities cited (A History of the Criminal Law of England (1883), vol. 3, at pp. 57‑58). Further, a recent author has suggested that Coke's statement was just "a slip of the quill" and that Coke intended to say that accidental killing by an unlawful act was manslaughter (see D. Lanham, "Felony Murder‑‑Ancient and Modern" (1983), 7 Crim. L.J. 90, at pp. 92‑94). Other 17th century writers (Dalton, Countrey Justice (1619), at pp. 225‑26, and Hale, History of the Pleas of the Crown (1736), vol. 1, at p. 475) and cases (Sir John Chichester's Case (1647), Aleyn 12, 82 E.R. 888, and Hull's Case (1664), Kelyng, J. 40) rejected the unlawful act murder rule as set out by Coke. Despite all of this, Coke's doctrine seems to have been accepted by the writers and the cases in the 18th century, and their only contribution was to limit it to killings in the course of felonies (see R. v. Plummer (1702), Kelyng, J. 109, 84 E.R. 1103, at p. 1107; Hawkins, Pleas of the Crown (1716), vol. 1, ch. 29, s. 11; R. v. Woodburne and Coke (1722), 16 St. Tr. 53; Foster, Crown Law (1762), at p. 258; East, Pleas of the Crown (1803), vol. 1, at p. 255). Of course, at that time, both the underlying felony and the murder were punishable by death, so the definition of a homicide in the course of a felony as a murder had little practical effect.

19 In the 19th century, the felony murder rule was accepted as part of the common law (see Stephen's Digest of the Criminal Law (9th ed. 1950), art. 264(c)). However, the rule was strongly criticized by Stephen, who labelled it "cruel" and "monstrous" (A History of the Criminal Law of England, supra, at p. 75).

20 Despite the rule's questionable origins and the subsequent criticisms, s. 175 of the English Draft Code of 1879 included a restricted form of felony murder which was subsequently adopted in the first Canadian Criminal Code in 1892. Through subsequent amendments, this provision has been widened and it is now s. 213. It is more restricted than the common law rule in that it is limited to deaths occurring in the commission of certain enumerated offences and it requires that the accused have committed one of the acts set out in paras. (a) to (d).

21 Section 213 and its predecessors in the Code have long been subject to academic criticism (see J. Willis, "Case and Comment" (1951), 29 Can. Bar Rev. 784, at pp. 794‑96; J. Ll. J. Edwards, "Constructive Murder in Canadian and English Law" (1961), 3 Crim. L.Q. 481, at pp. 506‑9; A. Hooper, "Some Anomalies and Developments in the Law of Homicide" (1967), 3 U.B.C. L. Rev. 55, at pp. 75‑77; P. Burns and R. S. Reid, "From Felony Murder to Accomplice Felony Attempted Murder: The Rake's Progress Compleat?" (1977), 55 Can. Bar Rev. 75, at pp. 103‑5; G. Parker, An Introduction to Criminal Law (1977), at pp. 145‑48; D. Stuart, Canadian Criminal Law (1982), at pp. 222‑25; I. Grant and A. W. MacKay, "Constructive Murder and the Charter: In Search of Principle" (1987), 25 Alta. L. Rev. 129; cf. A. W. Mewett and M. Manning, Criminal Law (2nd ed. 1985), at p. 545). It has also been subject to judicial criticism. In R. v. Farrant, [1983] 1 S.C.R. 124, Dickson J., as he then was, wrote that s. 213 seemed harsh (p. 130). In R. v. Ancio, [1984] 1 S.C.R. 225, dealing with the mens rea of attempted murder, McIntyre J. wrote at pp. 250‑51:

It was argued, and it has been suggested in some of the cases and academic writings on the question, that it is illogical to insist upon a higher degree of mens rea for attempted murder, while accepting a lower degree amounting to recklessness for murder. I see no merit in this argument. The intent to kill is the highest intent in murder and there is no reason in logic why an attempt to murder, aimed at the completion of the full crime of murder, should have any lesser intent. If there is any illogic in this matter, it is in the statutory characterization of unintentional killing as murder. [Emphasis added.]

22 Finally, the Law Reform Commission of Canada criticized s. 213 in Homicide (1984), Working Paper 33, at pp. 47‑51, and excluded the notion of constructive murder from its Draft Criminal Code (Recodifying Criminal Law (1986), Report 30, cl. 6(3), at p. 54).

Felony Murder in Other Jurisdictions

23 Felony murder is a peculiarly common law concept which appears to be unknown outside a small circle of common law jurisdictions, and it has not fared well in those jurisdictions. In the United Kingdom, where the rule originated, it was abolished by the Homicide Act, 1957, 5 & 6 Eliz. 2, c. 11 (U.K.) The rule is still quite widespread in the United States, though it is said to be in decline (R. M. Perkins and R. N. Boyce, Criminal Law (3rd ed. 1982), at p. 70). The rule has been abolished by statute or by the courts in several jurisdictions (see People v. Aaron, 299 N.W.2d 304 (Mich. 1980), State v. Doucette, 470 A.2d 676 (Vt. 1983)), and it has been downgraded to manslaughter in others. In addition, the courts and the legislatures have limited the scope of the common law rule by limiting the felonies to which it is applicable, requiring some degree of mens rea with respect to the death, establishing affirmative defences or limiting the punishments available. The rule also exists in New Zealand and certain Australian states but it is narrower and abolition has been recommended in some jurisdictions.

Section 213(d) and the Charter

24 This appeal calls into play two principles of fundamental justice.

The First Principle: The Essential Elements of Certain Crimes and s. 7 of the Charter

25 Prior to the enactment of the Charter, Parliament had full legislative power with respect to "The Criminal Law" (Constitution Act, 1867, s. 91(27)), including the determination of the essential elements of any given crime. It could prohibit any act and impose any penal consequences for infringing the prohibition, provided only that the prohibition served "a public purpose which can support it as being in relation to criminal law" (Reference re Validity of s. 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, at p. 50; appeal to the Privy Council dismissed, [1951] A.C. 179). Once the legislation was found to have met this test, the courts had very little power to review the substance of the legislation. For example, in R. v. Corporation of the City of Sault Ste. Marie, [1978] 2 S.C.R. 1299, Dickson J., as he then was, held that, when an offence was criminal in the true sense, there was a presumption that the prosecution must prove the mens rea. However, it was always open to Parliament expressly to relieve the prosecution of its obligation to prove any part of the mens rea, as it is said to have done in s. 213 of the Code with respect to the foreseeability of the death of the victim. It is thus clear that, prior to the enactment of the Charter, the validity of s. 213 could not have been successfully challenged.

26 However, federal and provincial legislatures have chosen to restrict through the Charter this power with respect to criminal law. Under section 7, if a conviction, given either the stigma attached to the offence or the available penalties, will result in a deprivation of the life, liberty or security of the person of the accused, then Parliament must respect the principles of fundamental justice. It has been argued that the principles of fundamental justice in s. 7 are only procedural guarantees. However, in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, this Court rejected that argument and used s. 7 to review the substance of the legislation. As a result, while Parliament retains the power to define the elements of a crime, the courts now have the jurisdiction and, more important, the duty, when called upon to do so, to review that definition to ensure that it is in accordance with the principles of fundamental justice.

27 This Court's decision in Re B.C. Motor Vehicle Act stands for the proposition that absolute liability infringes the principles of fundamental justice, such that the combination of absolute liability and a deprivation of life, liberty or security of the person is a restriction on one's rights under s. 7 and is prima facie a violation thereof. In effect, Re B.C. Motor Vehicle Act acknowledges that, whenever the state resorts to the restriction of liberty, such as imprisonment, to assist in the enforcement of a law, even, as in Re B.C. Motor Vehicle Act, a mere provincial regulatory offence, there is, as a principle of fundamental justice, a minimum mental state which is an essential element of the offence. It thus elevated mens rea from a presumed element in Sault Ste. Marie, supra, to a constitutionally required element. Re B.C. Motor Vehicle Act did not decide what level of mens rea was constitutionally required for each type of offence, but inferentially decided that even for a mere provincial regulatory offence at least negligence was required, in that at least a defence of due diligence must always be open to an accused who risks imprisonment upon conviction. In Sault Ste. Marie, Dickson J. stated at pp. 1309‑10:

Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law.

It may well be that, as a general rule, the principles of fundamental justice require proof of a subjective mens rea with respect to the prohibited act, in order to avoid punishing the "morally innocent". It must be remembered, however, that Dickson J. was dealing with the mens rea to be presumed in the absence of an express legislative disposition, and not the mens rea to be required in all legislation providing for a restriction on the accused's life, liberty or security of the person. In any event, this case involves criminal liability for the result of an intentional criminal act, and it is arguable that different considerations should apply to the mental element required with respect to that result. There are many provisions in the Code requiring only objective foreseeability of the result or even only a causal link between the act and the result. As I would prefer not to cast doubt on the validity of such provisions in this case, I will assume, but only for the purposes of this appeal, that something less than subjective foresight of the result may, sometimes, suffice for the imposition of criminal liability for causing that result through intentional criminal conduct.

28 But, whatever the minimum mens rea for the act or the result may be, there are, though very few in number, certain crimes where, because of the special nature of the stigma attached to a conviction therefor or the available penalties, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime. Such is theft, where, in my view, a conviction requires proof of some dishonesty. Murder is another such offence. The punishment for murder is the most severe in our society and the stigma that attaches to a conviction for murder is similarly extreme. In addition, murder is distinguished from manslaughter only by the mental element with respect to the death. It is thus clear that there must be some special mental element with respect to the death before a culpable homicide can be treated as a murder. That special mental element gives rise to the moral blameworthiness which justifies the stigma and sentence attached to a murder conviction. I am presently of the view that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight. Given the effect of this view on part of s. 212(c), for the reasons I have already given for deciding this case more narrowly, I need not and will not rest my finding that s. 213(d) violates the Charter on this view, because s. 213(d) does not, for reasons I will set out hereinafter, even meet the lower threshold test of objective foreseeability. I will therefore, for the sole purpose of this appeal, go no further than say that it is a principle of fundamental justice that, absent proof beyond a reasonable doubt of at least objective foreseeability, there surely cannot be a murder conviction.

The Second Principle: s. 11(d) and the Burden of Persuasion

29 The presumption of innocence in s. 11(d) of the Charter requires at least that an accused be presumed innocent until his guilt has been proven beyond a reasonable doubt: Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 357; R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 120‑21. This means that, before an accused can be convicted of an offence, the trier of fact must be satisfied beyond reasonable doubt of the existence of all of the essential elements of the offence. These essential elements include not only those set out by the legislature in the provision creating the offence but also those required by s. 7 of the Charter. Any provision creating an offence which allows for the conviction of an accused notwithstanding the existence of a reasonable doubt on any essential element infringes ss. 7 and 11(d).

30 Clearly, this will occur where the provision requires the accused to disprove on a balance of probabilities an essential element of the offence by requiring that he raise more than just a reasonable doubt. It is for this reason that this Court struck down the reverse onus provision in s. 8 of the Narcotic Control Act, R.S.C. 1970, c. N‑1, in Oakes, supra.

31 Sections 7 and 11(d) will also be infringed where the statutory definition of the offence does not include an element which is required under s. 7. As Dickson C.J. wrote for the majority of the Court in Oakes, supra, at pp. 132‑33:

In general one must, I think, conclude that a provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in s. 11(d). If an accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was untrue. [Emphasis added.]

It is clear from this passage that what offends the presumption of innocence is the fact that an accused may be convicted despite the existence of a reasonable doubt on an essential element of the offence, and I do not think that it matters whether this results from the existence of a reverse onus provision or from the elimination of the need to prove an essential element. With respect, the Nova Scotia Court of Appeal was thus clearly incorrect when it stated in R. v. Bezanson (1983), 8 C.C.C. (3d) 493, at p. 508:

In my view, there was no attempt by Parliament to reverse the onus of proof under s. 213, and s. 11(d) of the Charter has no application. Parliament has not reversed the burden of proof, it has simply omitted what the appellant argues is an essential element from the definition of the offence so that no evidence is required at all on that issue.

The omission of an essential element does bring s. 11(d) into play.

32 Finally, the legislature, rather than simply eliminating any need to prove the essential element, may substitute proof of a different element. In my view, this will be constitutionally valid only if upon proof beyond reasonable doubt of the substituted element it would be unreasonable for the trier of fact not to be satisfied beyond reasonable doubt of the existence of the essential element. If the trier of fact may have a reasonable doubt as to the essential element notwithstanding proof beyond a reasonable doubt of the substituted element, then the substitution infringes ss. 7 and 11(d).

33 Given the first principle I have enunciated earlier and my assumption for the sole purpose of disposing of this appeal with respect to objective foreseeability, an accused cannot be found guilty of murder absent proof beyond a reasonable doubt of that element, and a murder provision which allows a conviction in the absence of proof beyond reasonable doubt of at least that essential element infringes ss. 7 and 11(d).

Application of the Principles to s. 213

34 The mens rea required for s. 213 consists of the mens rea for the underlying offence and the intent to commit one of the acts set forth in paras. (a) to (d) (Swietlinski v. The Queen, [1980] 2 S.C.R. 956). Section 213 does not impose on the accused the burden of disproving objective foreseeability. Further, it does not completely exclude the need to prove any objective foreseeability. Rather, s. 213 has substituted for proof beyond a reasonable doubt of objective foreseeability, if that is the essential element, proof beyond a reasonable doubt of certain forms of intentional dangerous conduct causing death.

35 The question is, therefore, can Parliament make this substitution without violating ss. 7 and 11(d)? As I have discussed earlier, if Parliament frames the section so that, upon proof of the conduct, it would be unreasonable for a jury not to conclude beyond a reasonable doubt that the accused ought to have known that death was likely to ensue, then I think that Parliament has enacted a crime which is tantamount to one which has objective foreseeability as an essential element, and, if objective foreseeability is sufficient, then it would not be in violation of s. 7 or s. 11(d) in doing so in that way. The acid test of the constitutionality of s. 213 is this ultimate question: Would it be possible for a conviction for murder to occur under s. 213 despite the jury having a reasonable doubt as to whether the accused ought to have known that death was likely to ensue? If the answer is yes, then the section is prima facie in violation of ss. 7 and 11(d). I should add in passing that if the answer is no, then it would be necessary to decide whether objective foreseeability is sufficient for a murder conviction. However, because in my view the answer is yes and because I do not want to pass upon the constitutionality of s. 212(c) in this case, I will not address that issue.

36 To varying degrees it can be said that in almost any case a jury satisfied beyond a reasonable doubt that an accused has done one of the prohibited acts described in paras. (a) to (d) will be satisfied beyond a reasonable doubt that the accused ought to have known that death was likely to be caused. But not always. Indeed, as a first example, drunkenness would under certain circumstances leave the jury in doubt in that regard. The rule as regards the effect of drunkenness on objective foreseeability was unanimously laid down by this Court in R. v. Vasil, [1981] 1 S.C.R. 469, a murder prosecution under s. 212(c). This Court addressed the issue at some length and then summarized its conclusion as follows, per Lamer J. at pp. 500‑501:

(5) Whilst the test under 212(c) is objective and the behaviour of the accused is to be measured by that of the reasonable man, such a test must nevertheless be applied having regard, not to the knowledge a reasonable man would have had of the surrounding circumstances that allegedly made the accused's conduct dangerous to life, but to the knowledge the accused had of those circumstances;

(6) As a result, drunkenness, though not relevant in the determination of what a reasonable man, with the knowledge the accused had of those circumstances, would have anticipated, is relevant in the determination of the knowledge which the accused had of those circumstances.

It is clear to me that under s. 213 as drafted there will be cases where the effect of drunkenness on an accused's knowledge of the circumstances would leave a jury with a reasonable doubt as to whether the accused ought to have known of the likelihood of death ensuing, even though it has been proven beyond a reasonable doubt that the accused actually did one of the acts described under paras. (a) to (d).

37 A second example, and this case amply illustrates the point, is the accused who is brought into s. 213 not as a principal but through the operation of s. 21(2) of the Criminal Code. In R. v. Trinneer, [1970] S.C.R. 638, this Court had the opportunity to consider the combined operation of ss. 21(2) and 213 (s. 202 at the time). Cartwright C.J., delivering the judgment of the Court, stated at pp. 645‑46.

At the risk of repetition, it is my opinion that on the true construction of s. 202 and s. 21(2) as applied to the circumstances of this case it was necessary to support a verdict of guilty against the respondent that the Crown should establish (i) that it was in fact a probable consequence of the prosecution of the common purpose of the respondent and Frank to rob Mrs. Vollet that Frank for the purpose of facilitating the commission of the robbery would intentionally cause bodily harm to Mrs. Vollet, (ii) that it was known or ought to have been known to the respondent that such consequence was probable and (iii) that in fact Mrs. Vollet's death ensued from the bodily harm. It was not necessary for the Crown to establish that the respondent knew or ought to have known that it was probable that Mrs. Vollet's death would ensue. [Emphasis added.]

It is clear that an accused can be convicted of murder under the combined operation of ss. 21(2) and 213 in circumstances where the death was not objectively foreseeable. As section 21(2) requires proof of objective foreseeability, the culprit, in my view, must be s. 213.

38 These two examples suffice, in my view, for one to conclude that notwithstanding proof beyond a reasonable doubt of the matters set forth in paras. (a) to (d) a jury could reasonably be left in doubt as regards objective foreseeability of the likelihood that death be caused. In other words, s. 213 will catch an accused who performs one of the acts in paras. (a) to (d) and thereby causes a death but who otherwise would have been acquitted of murder because he did not foresee and could not reasonably have foreseen that death would be likely to result. For that reason, s. 213 prima facie violates ss. 7 and 11(d). It is thus not necessary to decide whether objective foreseeability is sufficient for murder as s. 213 does not even meet that standard. This takes us to s. 1 for the second phase of the constitutional inquiry.

Section 1

39 Finding that s. 213 of the Criminal Code infringes ss. 7 and 11(d) of the Charter does not end the inquiry on the constitutional validity of s. 213. Any or all of paras. (a) to (d) of s. 213 can still be upheld as a reasonable limit "demonstrably justified in a free and democratic society" under s. 1 of the Charter.

40 In this case and at this stage of the inquiry, we need only consider para. (d) of s. 213. The criteria to be assessed under s. 1 have been set out by this Court in several cases, particularly R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, and R. v. Oakes, supra. First, the objective which the measures are designed to serve must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom" (Big M Drug Mart, supra, at p. 352). Through s. 213(d) of the Code, Parliament intended to deter the use or carrying of a weapon in the commission of certain offences, because of the increased risk of death. In my view, it is clear that this objective is sufficiently important.

41 In addition, the measures adopted must be reasonable and demonstrably justified. The measures adopted appear to be rationally connected to the objective: indiscriminately punishing for murder all those who cause a death by using or carrying a weapon, whether the death was intentional or accidental, might well be thought to discourage the use and the carrying of weapons. I believe, however, that the measures adopted would unduly impair the rights and freedoms in question (see Big M Drug Mart, supra, at p. 352). It is not necessary to convict of murder persons who did not intend or foresee the death and who could not even have foreseen the death in order to deter others from using or carrying weapons. If Parliament wishes to deter the use or carrying of weapons, it should punish the use or carrying of weapons. A good example of this is the minimum imprisonment for using a firearm in the commission of an indictable offence under s. 83 of the Criminal Code. In any event, the conviction for manslaughter which would result instead of a conviction for murder is punishable by, from a day in jail, to confinement for life in a penitentiary. Very stiff sentences when weapons are involved in the commission of the crime of manslaughter would sufficiently deter the use or carrying of weapons in the commission of crimes. But stigmatizing the crime as murder unnecessarily impairs the Charter right.

42 In my view, therefore, s. 213(d) of the Code is not saved by s. 1.

Conclusion

43 As a result of the foregoing, I would answer the first constitutional question in the affirmative, as s. 213(d) violates both s. 7 and s. 11(d) of the Charter, and I would declare s. 213(d) of the Criminal Code to be of no force or effect. I would, for the reasons which I have given, decline to answer the second constitutional question. It follows that the appeal must be allowed, the appellant's conviction for murder set aside, and a new trial ordered.

The reasons of Beetz and Le Dain JJ. were delivered by

44 Beetz J.‑‑For the reasons given by Justice Lamer and Justice La Forest, I agree that s. 213(d) of the Criminal Code does not conform to the principles of fundamental justice entrenched in the Canadian Charter of Rights and Freedoms and cannot be saved under s. 1. I also agree with Lamer J. that s. 213(d) of the Code violates s. 11(d) of the Charter and cannot be justified under s. 1 of the Charter.

45 Given these conclusions, I do not find it necessary to decide whether there exists a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight.

46 I would dispose of the appeal in the manner proposed by Lamer J. and answer the first constitutional question as he does. I would also decline to answer the second constitutional question.

The following are the reasons delivered by

47 McIntyre J. (dissenting)‑‑I have had the advantage of reading the reasons for judgment in this appeal prepared by my colleague, Lamer J. I find myself unable to agree with his disposition of the appeal and, with the greatest respect for his view on the matter, I would dismiss the appeal and answer both constitutional questions in the negative.

48 My colleague has set out the facts of the case. They need not be repeated here. It is evident as well from his reasons that, save for the Canadian Charter of Rights and Freedoms, he is in agreement that the appellant would be properly convicted of murder under the combined effect of s. 21(2) and s. 213(d) of the Criminal Code. He would allow the appeal essentially on the basis that a conviction for murder which will result in the deprivation of liberty or security of the person of the accused can only be upheld if, in accordance with the terms of s. 7 of the Charter, it is procured in accordance with the principles of fundamental justice. While Parliament has the power to define the elements of a crime, in his view the courts must now review that definition to insure that it is in accordance with the principles of fundamental justice. These principles would require that there be no murder conviction without proof of a mens rea of at least objective foreseeability of death. Such foreseeability is not a necessary requirement under s. 213(d) of the Code.

49 I am not prepared to accept the proposition that s. 213(d) of the Criminal Code admits of a conviction for murder without proof of objective foreseeability of death or the likelihood of death, but in the view I take of this case it is not necessary to reach a firm conclusion on that point. The Crown sought the conviction of Vaillancourt on the basis of the interaction of s. 21(2) and s. 213(d) of the Code. For the Crown to succeed in such a prosecution, it would be required to prove that the accused and another had formed an intention in common to carry out an unlawful purpose and to assist each other therein. In addition, in the circumstances of this case, the Crown would be required to prove that the appellant knew or ought to have known that his associate was armed with a pistol and would, if necessary, use it during the commission of the offence or the attempt to commit the offence, or during his flight after committing or attempting to commit the offence, and that as a consequence a death occurred: see R. v. Munro and Munro (1983), 8 C.C.C. (3d) 260 (per Martin J.A.), at p. 301, and the pre‑Charter case in this Court in R. v. Trinneer, [1970] S.C.R. 638.

50 It must be recognized at the outset that Parliament has decided that the possession and use of weapons, particularly firearms, in the course of the commission of offences is a gravely aggravating factor. Experience has shown that the presence of firearms leads to personal injury and loss of life. Parliament has chosen to term a killing arising in the circumstances described here as "murder". In R. v. Munro and Munro, supra, Martin J.A., speaking for the Ontario Court of Appeal (Arnup, Martin and Houlden JJ.A.), said this, at p. 293:

Under the provisions of s. 213(d) liability for murder attaches if death ensues as a consequence of the use of the weapon or as a consequence of the possession of a weapon which he has on his person. Manifestly, s. 213(d) is very stringent, but it is equally obvious that Parliament intended to create a stringent basis of liability where death ensued as a consequence of the use or possession of a weapon which the offender has upon his person during the commission or attempted commission of certain offences or the offender's flight after the commission or attempted commission of the offence. It is clear that Parliament intended to provide a strong deterrent to the carrying of weapons in the commission of certain crimes because of the high risk to life which experience has shown attends such conduct.

51 The principal complaint in this case is not that the accused should not have been convicted of a serious crime deserving of severe punishment, but simply that Parliament should not have chosen to call that crime "murder". No objection could be taken if Parliament classified the offence as manslaughter or a killing during the commission of an offence, or in some other manner. As I have observed before (see R. v. Ancio, [1984] l S.C.R. 225, at p. 251), while it may be illogical to characterize an unintentional killing as murder, no principle of fundamental justice is offended only because serious criminal conduct, involving the commission of a crime of violence resulting in the killing of a human being, is classified as murder and not in some other manner. As Martin J.A. said in R. v. Munro and Munro, supra, at p. 301:

This legislation has frequently been criticized as being harsh, but that is a matter for Parliament and not for the courts.

I would refer, as well, to the words found in A. W. Mewett and M. Manning, Criminal Law (2nd ed. 1985), at pp. 544‑45:

Section 213 and the concept of constructive murder have been much criticized and, in fact, abolished in many jurisdictions. The criticism is that it imposes liability for murder in situations where death was not intended nor even, in some cases, foreseen. But murder is a legal concept; it does not have to be defined in terms of intentional killing, and even under s. 212 the definition is not this narrow. The policy behind s. 213 is to put the risk of killing a victim during the course of the commission of certain offences upon the offender to a higher degree than if it were merely classified as manslaughter. In any case, with the present distinction between murder punishable by death and murder punishable by life imprisonment now abolished, much of the criticism loses its force. It was the thought of someone being executed for a non‑intended homicide that led to the feeling that the definition of murder should somehow be limited to the old common law concept of "murder with malice aforethought".

52 As has been noted, the appellant's conviction is based on a combination of s. 21(2) and s. 213(d) of the Criminal Code. There was in this case evidence of active participation in the commission of the robbery, the underlying offence, and the terms of s. 21(2) were fully met. It must be accepted that the section gives expression to a principle of joint criminal liability long accepted and applied in the criminal law. I am unable to say upon what basis one could exempt conduct which attracts criminal liability, under s. 213 of the Criminal Code, from the application of that principle. In R. v. Munro and Munro, supra, Martin J.A. said, at p. 301:

Patently, Parliament has decided that the carrying of weapons during the commission of certain crimes, such as robbery, so manifestly endangers the lives of others, that one who joins a common purpose to commit one of the specified offences and who knows or ought to know that his accomplice has upon his person a weapon which he will use if needed, must bear the risk if death, in fact, ensues as a consequence of the use or possession of the weapon during the commission of one of the specified offences or during the flight of the offender after the commission or attempted commission of the underlying offence . . .

In my view, Martin J.A. has stated the policy considerations which have motivated Parliament in this connection and I would not interfere with the Parliamentary decision. I would, therefore, dismiss the appeal and answer the two constitutional questions in the negative.

The following are the reasons delivered by

53 La Forest J.‑‑I have had the advantage of reading the judgment of Lamer J. and would dispose of the appeal in the manner proposed by him. I am in agreement with him that because of the stigma attached to a conviction for murder, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime, namely one referable to causing death. In addition to the intention to cause death, this can include a closely related intention such as intention to cause bodily harm likely to result in death combined with recklessness as to that result. Whether and how much further the intention can be extended it is not necessary to explore for the purposes of this case. It is sufficient to say that the mental element required by s. 213(d) of the Criminal Code is so remote from the intention specific to murder (which intention is what gives rise to the stigma attached to a conviction for that crime) that a conviction under that paragraph violates fundamental justice. All the provision requires is an intention to commit another crime and to possess a weapon while carrying out this intention or in fleeing afterwards. The provision is so broad that under it a person may be found guilty of murder even though the death was the result of an accident. This occurred in Rowe v. The King, [1951] S.C.R. 713, and more extreme examples can easily be imagined. The section is thus not only remote from the mens rea specific to murder, but even removes its actus reus as traditionally defined; see I. Grant and A. W. MacKay, "Constructive Murder and the Charter: In Search of Principle" (1987), 25 Alta. L. Rev. 129.

54 As my colleague notes, the objective of discouraging the use of weapons in the commission of crimes can be achieved by means other than attaching the stigma of a conviction for murder to a person who has caused death in the circumstances like those described in the provision.

Appeal allowed and new trial ordered, McIntyre J. dissenting.

Solicitor for the appellant: Michel Marchand, Montréal.

Solicitor for the respondent: Bernard Laprade, Montréal.

Solicitor for the intervener: The Ministry of the Attorney General, Toronto.

2009-09-12T16:46:00.000-07:00

The following is the judgment in the case R. v. Williams, in which the Supreme Court of Canada ruled that judges must act on the basis of acknowledging the existence of widespread racism in Canadian society when applying the rules for selecting and instructing juries. John considers this ruling very relevant to his own case, given that the juries in both of his trials were entirely white despite the fact that the trials occurred in an area where lots of Native people live. This material has been obtained from Supreme Court website.

R. v. Williams, [1998] 1 S.C.R. 1128

Victor Daniel Williams Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General of Canada,
the Attorney General for Ontario,
Aboriginal Legal Services of Toronto Inc.,
the African Canadian Legal Clinic,
the Urban Alliance on Race Relations (Justice)
and the Criminal Lawyers’ Association (Ontario) Interveners

Indexed as: R. v. Williams

File No.: 25375.

1998: February 24; 1998: June 4.

Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Trial ‑‑ Procedure ‑‑ Challenge for cause ‑‑ Racial bias ‑‑ Whether prospective jurors can be questioned as to racial bias ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 638, 649 ‑‑ Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 15(1).

The accused, an aboriginal, pleaded not guilty to a robbery charge and elected a trial by judge and jury. The trial judge at the first trial allowed questions to be put to potential jurors but the Crown successfully applied for a mistrial on the basis of procedural errors and the “unfortunate publicity” of the jury selection process. At the second trial, the judge who heard the accused’s motion for an order permitting him to challenge jurors for cause dismissed the motion. The judge who presided at the trial dismissed a renewed application and did not warn the jury, either in his opening or closing addresses, to be aware of or to disregard any bias or prejudice that they might feel towards the accused as a native person. The Court of Appeal dismissed an appeal from conviction. The courts below accepted that there was widespread prejudice against aboriginal people in the community. At issue here is whether the evidence of widespread bias against aboriginal people in the community raises a realistic potential of partiality.

Held: The appeal should be allowed.

The prosecution and the defence are entitled to challenge potential jurors for cause on the ground of partiality. Candidates for jury duty are presumed to be indifferent or impartial and this presumption must be displaced before they can be challenged and questioned. Usually the party seeking the challenge calls evidence substantiating the basis of the concern. Alternatively, where the basis of the concern is widely known and accepted, the law of evidence may permit a judge to take judicial notice of it. The judge has a wide discretion in controlling the challenge process and should permit challenges if there is a realistic possibility that the jury pool may contain people whose racial prejudice might incline them to favour the Crown rather than the accused in deciding the matters that fall to them in the course of the trial.

Judicial directions to act impartially cannot always be assumed to be effective in countering racial prejudice. Where doubts are raised, the better policy is to err on the side of caution and permit prejudice to be examined. A motion to challenge for cause therefore need not be dismissed if there was “no concrete evidence” that any of the prospective jurors could not set aside their biases. The expectation that jurors usually behave in accordance with their oaths does not obviate the need to permit challenges for cause where it is established that the community suffers from widespread prejudice against people of the accused’s race sufficient to create a realistic potential for partiality.

The contention that there need be some evidence of bias of a particular nature and extent against aboriginal persons, or even further, that racial prejudice in the community must be linked to specific aspects of the trial, is unduly restrictive. Evidence of widespread racial prejudice may, depending on the nature of the evidence and the circumstances of the case, lead to the conclusion that there is a realistic potential for partiality. The potential for partiality is irrefutable where the prejudice can be linked to specific aspects of the trial, like a widespread belief that people of the accused’s race are more likely to commit the crime charged.

Racial prejudice against the accused may be detrimental to an accused in a variety of ways. The link between prejudice and verdict is clearest where there is an “interracial element” to the crime or a perceived link between those of the accused’s race and the particular crime. Racial prejudice may also play a role in other, less obvious ways such as how jurors assess the credibility of the accused.

The trial judge has the discretion to determine whether widespread racial prejudice in the community, absent specific “links” to the trial, is sufficient to give an “air of reality” to the challenge in the particular circumstances of each case. It is impossible to provide an exhaustive catalogue of those circumstances. Where specific “links” to the trial exist, the trial judge must allow the challenge to proceed.

Section 638(2) of the Criminal Code requires two inquiries and entails two different decisions. The first stage is the inquiry before the judge to determine whether challenges for cause should be permitted. The test at this stage is whether there is a realistic potential or possibility for partiality. If the judge permits challenges for cause, a second inquiry occurs on the challenge itself. The defence may question potential jurors as to whether they harbour prejudices against people of the accused’s race, and if so, whether they are able to set those prejudices aside and act as impartial jurors. At this stage, the question to be determined by the triers is whether the candidate in question will be able to act impartially.

Section s. 638(1)(b) is intended to prevent persons who may not be able to act impartially from sitting as jurors. This object cannot be achieved if the evidentiary threshold for challenges for cause is set too high. To require evidence that some jurors will be unable to set their prejudices aside is to ask the impossible. Similarly, extreme prejudice is a poor indicator of a realistic danger or potential of partiality. Widespread racial prejudice is not exceptional.

The appropriate evidentiary standard on applications to challenge for cause based on racial prejudice is a “realistic potential for partiality” (the rule in R. v. Sherratt). Absent evidence to the contrary, where widespread prejudice against people of the accused’s race is demonstrated at a national or provincial level, it will often be reasonable to infer that such prejudice is replicated at the community level. Prejudice less than widespread might in some circumstances meet this test.

A judge’s discretion to allow challenge for cause must be exercised in accordance with the Canadian Charter of Rights and Freedoms. Section s. 638(1)(b) should be read in light of the fundamental rights to a fair trial by an impartial jury and to equality before and under the law. The rule in Sherratt suffices to maintain these rights without adopting the United States model or a variant on it. It protects the accused’s right to a fair trial by an impartial jury and the privacy interests of prospective jurors while avoiding lengthening trials or increasing their cost.

Cases Cited

Applied: R. v. Sherratt, [1991]1 S.C.R. 509; R. v. Parks (1993), 84 C.C.C. (3d) 353; referred to: R. v. Hubbert (1975), 29 C.C.C. (2d) 279; R. v. Zundel (No. 1) (1987), 31 C.C.C. (3d) 97; Aldridge v. United States, 283 U.S. 308 (1931); R. v. B. (A.) (1997), 33 O.R. (3d) 321; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 7, 11(d), 15(1).

Criminal Code, R.S.C.,1985, c. C‑46, ss. 638, 649.

Authors Cited

British Columbia. Cariboo-Chilcotin Justice Inquiry. Report on the Cariboo-Chilcotin Justice Inquiry. Victoria: The Inquiry, 1993.

Burton, William C. Legal Thesaurus, 2nd ed. Toronto: Maxwell Macmillan Canada, 1992.

Canada. Royal Commission on Aboriginal Peoples. Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada. Ottawa: The Commission, 1996.

Canadian Bar Association. Committee on Imprisonment and Release. Locking Up Natives in Canada: A Report of the Committee of the Canadian Bar Association on Imprisonment and Release. Ottawa: The Association, 1988.

Johnson, Sheri Lynn. “Black Innocence and the White Jury” (1985), 83 Mich. L. Rev. 1611.

Nova Scotia. Royal Commission on the Donald Marshall, Jr. Prosecution: Findings and Recommendations, vol. 1. Halifax: The Commission, 1989.

Pfeiffer, Jeffrey. “Reviewing the Empirical Evidence on Jury Racism: Findings of Discrimination or Discriminatory Findings?” (1990), 69 Neb. L. Rev. 230.

Roach, Kent. “Challenges for Cause and Racial Discrimination” (1995), 37 Crim. L.Q. 410.

Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.

Tanovich, David M., David M. Paciocco and Steven Skurka. Jury Selection in Criminal Trials. Concord, Ont.: Irwin Law, 1997.

Vidmar, Neil. “Pretrial prejudice in Canada: a comparative perspective on the criminal jury” (1996), 79 Jud. 249.

APPEAL from a judgment of the British Columbia Court of Appeal (1996), 75 B.C.A.C. 135, 123 W.A.C. 135, 134 D.L.R. (4th) 519, 106 C.C.C. (3d) 215, 48 C.R. (4th) 97, [1997] 1 C.N.L.R. 153, [1996] B.C.J. No. 926 (QL), dismissing an appeal from conviction by Vickers J. sitting with jury, [1994] B.C.J. No. 3160 (QL), after a judgment by Esson C.J. on a motion to challenge for cause (1994), 90 C.C.C. (3d) 194, 30 C.R. (4th) 277, [1995] 3 C.N.L.R. 178, [1994] B.C.J. No. 1301 (QL). Appeal allowed.

Joseph J. Blazina, for the appellant.

Dirk Ryneveld, Q.C., and George Ivanisko, for the respondent.

Graham Garton, Q.C., for the intervener the Attorney General of Canada.

Ian R. Smith, for the intervener the Attorney General for Ontario.

Kent Roach and Noelle Spotton, for the intervener Aboriginal Legal Services of Toronto Inc.

Steven M. Hinkson and Julian K. Roy, for the intervener the African Canadian Legal Clinic.

Julian N. Falconer and Richard Macklin, for the intervener the Urban Alliance on Race Relations (Justice).

James Lockyer, for the intervener the Criminal Lawyers’ Association (Ontario).

//McLachlin J.//

The judgment of the Court was delivered by

McLachlin J. --

Introduction

1 Victor Daniel Williams, an aboriginal, was charged with the robbery of a Victoria pizza parlour in October, 1993. Mr. Williams pleaded not guilty and elected a trial by judge and jury. His defence was that the robbery had been committed by someone else, not him. The issue on this appeal is whether Mr. Williams has the right to question (challenge for cause) potential jurors to determine whether they possess prejudice against aboriginals which might impair their impartiality.

2 The Criminal Code, R.S.C., 1985, c. C-46, s. 638, provides that “an accused is entitled to any number of challenges on the ground that . . . a juror is not indifferent between the Queen and the accused”. The section confers discretion on the trial judge to permit challenges for cause. The judge should do so where there is a realistic potential of juror partiality. The evidence in this case established widespread racial prejudice against aboriginals. I conclude that in the circumstances of this case, that prejudice established a realistic potential of partiality and that the trial judge should have exercised his discretion to allow the challenge for cause.

History of the Proceedings

The First Trial

3 At his first trial, Williams applied to question potential jurors for racial bias under s. 638 of the Code. In support of his application, he filed materials alleging widespread racism against aboriginal people in Canadian society and an affidavit which stated, in part, “[I] hope that the 12 people that try me are not Indian haters”. Hutchison J. ruled that Williams had met the threshold test and allowed potential jurors to be asked two questions:

(1) Would your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is an Indian?

(2) Would your ability to judge the evidence in the case without bias, prejudice, or partiality be affected by the fact that the person charged is an Indian and the complainant is white?

On a number of occasions, Hutchison J. allowed additional questions to clarify responses to the first two questions. Forty-three panel members were questioned and 12 were dismissed for risk of bias. The Crown applied for a mistrial on the basis of procedural errors, including use of the same two jurors on all the challenges, coupled with “unfortunate publicity” of the jury selection process. The accused objected, arguing that the Crown was seeking a new trial in order to obtain reversal of the challenge for cause ruling. The trial judge replied that he doubted this would happen, given the case law, and granted the Crown’s application for a mistrial.

The Second Trial (1994), 90 C.C.C. (3d) 194

4 Williams’ motion for an order permitting him to challenge jurors for cause was heard by Esson C.J. In support of the application, Williams called four witnesses and filed the ruling of Hutchison J. on the right to challenge for cause and a transcript of the jury selection proceedings. Esson C.J. found, at p. 198, that the evidence tended to support the view “that natives historically have been and continue to be the object of bias and prejudice which, in some respects, has become more overt and widespread in recent years as the result of tensions created by developments in such areas as land claims and fishing rights”. He acknowledged that there was a reasonable possibility that a potential juror would be biased against an aboriginal person charged with robbery of a white person. He also accepted that the test for challenge for cause is “reasonable possibility” of influence by bias, or partiality: see R. v. Sherratt, [1991] 1 S.C.R. 509.

5 However, Esson C.J. rejected the argument that the widespread bias against Natives created a reasonable possibility of partiality sufficient to support a challenge for cause. “[I]t does not follow, in the absence of anything more than the race of the accused, that there is a realistic possibility that a juror would be influenced by such a bias in carrying out the solemn duty of deciding whether the accused is guilty of the crime charged” (at p. 206). In other words, Esson C.J. held that while there was a reasonable possibility that potential jurors would be biased against Williams, there was no reasonable possibility that this bias would translate into partiality at the trial, because jurors can be expected to put aside their biases and because the jury system provides effective safeguards against such biases. In his view, the law presumes impartiality, and evidence of general bias in the community is insufficient to displace this presumption. Esson C.J. buttressed this conclusion with a cost-benefit analysis. In his view, the cost and disruption that would result from allowing challenges for cause on the basis of racial bias in the community would far outweigh the putative benefit of supposedly fairer trials. He distinguished R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont. C.A.), where challenge for cause on account of racial bias had been allowed, on the ground that the evidence there showed not only racial bias, but a widespread perception in the community of Toronto that black people were linked to violent crime.

6 Vickers J. presided at the trial. He dismissed a renewed application to challenge potential jurors for cause. Neither in his opening to the jury nor in his closing address to the jury did he instruct the jury that it ought to be aware of or disregard any bias or prejudice that they might feel towards Williams as a native person. Williams called evidence to support his defence that another aboriginal person, not he, had committed the robbery. The jury convicted Williams. Williams appealed to the Court of Appeal on the issue of challenge for cause.

The Court of Appeal (1996), 106 C.C.C. (3d) 215

7 The Court of Appeal, per Macfarlane J.A., agreed with Esson C.J. that there is a presumption of juror impartiality, and that it is not discharged by evidence of general bias in the community against persons of the accused’s race. To discharge the presumption, evidence of racist attitudes that would have particular significance in relation to a criminal trial is required. It dismissed the appeal, at pp. 229-30, because “there are no studies . . . in the evidence which conclude that persons in a jury setting may be inclined to find that an aboriginal person is more likely to have committed a crime than a non-aboriginal person”. It held that while procedural cost cannot diminish the right to a fair trial, Esson C.J.’s cost-benefit analysis was collateral and did not vitiate his decision. The appeal was dismissed and the conviction upheld.

Statutory and Constitutional Provisions

8 Criminal Code, R.S.C., 1985, c. C-46

638. (1) A prosecutor or an accused is entitled to any number of challenges on the ground that

. . .

(b) a juror is not indifferent between the Queen and the accused;

. . .

(2) No challenge for cause shall be allowed on a ground not mentioned in subsection (1).

Canadian Charter of Rights and Freedoms

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

11. Any person charged with an offence has the right

. . .

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Analysis

What is the Rule?

The Prevailing Canadian Approach to Jury Challenges for Lack of Indifference Between the Crown and the Accused

9 The prosecution and the defence are entitled to challenge potential jurors for cause on the ground that “a juror is not indifferent between the Queen and the accused”. Lack of “indifference” may be translated as “partiality”, the term used by the Courts below. “Lack of indifference” or “partiality”, in turn, refer to the possibility that a juror’s knowledge or beliefs may affect the way he or she discharges the jury function in a way that is improper or unfair to the accused. A juror who is partial or “not indifferent” is a juror who is inclined to a certain party or a certain conclusion. The synonyms for “partial” in Burton’s Legal Thesaurus (2nd ed. 1992), at p. 374, illustrate the attitudes that may serve to disqualify a juror:

bigoted, . . . discriminatory, favorably disposed, inclined, influenced, . . . interested, jaundiced, narrow-minded, one-sided, partisan, predisposed, prejudiced, prepossessed, prone, restricted, . . . subjective, swayed, unbalanced, unequal, uneven, unfair, unjust, unjustified, unreasonable.

10 The predisposed state of mind caught by the term “partial” may arise from a variety of sources. Four classes of potential juror prejudice have been identified — interest, specific, generic and conformity: see Neil Vidmar, “Pretrial prejudice in Canada: a comparative perspective on the criminal jury” (1996), 79 Jud. 249, at p. 252. Interest prejudice arises when jurors may have a direct stake in the trial due to their relationship to the defendant, the victim, witnesses or outcome. Specific prejudice involves attitudes and beliefs about the particular case that may render the juror incapable of deciding guilt or innocence with an impartial mind. These attitudes and beliefs may arise from personal knowledge of the case, publicity through mass media, or public discussion and rumour in the community. Generic prejudice, the class of prejudice at issue on this appeal, arises from stereotypical attitudes about the defendant, victims, witnesses or the nature of the crime itself. Bias against a racial or ethnic group or against persons charged with sex abuse are examples of generic prejudice. Finally, conformity prejudice arises when the case is of significant interest to the community causing a juror to perceive that there is strong community feeling about a case coupled with an expectation as to the outcome.

11 Knowledge or bias may affect the trial in different ways. It may incline a juror to believe that the accused is likely to have committed the crime alleged. It may incline a juror to reject or put less weight on the evidence of the accused. Or it may, in a general way, predispose the juror to the Crown, perceived as representative of the “white” majority against the minority-member accused, inclining the juror, for example, to resolve doubts about aspects of the Crown’s case more readily: see Sheri Lynn Johnson, “Black Innocence and the White Jury” (1985), 83 Mich. L. Rev. 1611. When these things occur, a juror, however well intentioned, is not indifferent between the Crown and the accused. The juror’s own deliberations and the deliberations of other jurors who may be influenced by the juror, risk a verdict that reflects, not the evidence and the law, but juror preconceptions and prejudices. The aim of s. 638 of the Code is to prevent effects like these from contaminating the jury’s deliberations and hence the trial: see R. v. Hubbert (1975), 29 C.C.C. (2d) 279 (Ont. C.A.). The aim, to put it succinctly, is to ensure a fair trial.

12 The practical problem is how to ascertain when a potential juror may be partial or “not indifferent” between the Crown and the accused. There are two approaches to this problem. The first approach is that prevailing in the United States. On this approach, every jury panel is suspect. Every candidate for jury duty may be challenged and questioned as to preconceptions and prejudices on any sort of trial. As a result, lengthy trials of jurors before the trial of the accused are routine.

13 Canada has taken a different approach. In this country, candidates for jury duty are presumed to be indifferent or impartial. Before the Crown or the accused can challenge and question them, they must raise concerns which displace that presumption. Usually this is done by the party seeking the challenge calling evidence substantiating the basis of the concern. Alternatively, where the basis of the concern is “notorious” in the sense of being widely known and accepted, the law of evidence may permit a judge to take judicial notice of it. This might happen, for example, where the basis of the concern is widespread publicity of which the judge and everyone else in the community is aware. The judge has a wide discretion in controlling the challenge process, to prevent its abuse, to ensure it is fair to the prospective juror as well as the accused, and to prevent the trial from being unnecessarily delayed by unfounded challenges for cause: see Hubbert, supra.

14 Judicial discretion, however, must be distinguished from judicial whim. A judge exercising the discretion to permit or refuse challenges for cause must act on the evidence and in a way that fulfills the purpose of s. 638(1)(b) — to prevent persons who are not indifferent between the Crown and the accused from serving on the jury. Stated otherwise, a trial judge, in the exercise of the discretion, cannot “effectively curtail the statutory right to challenge for cause”: see R. v. Zundel (No. 1) (1987), 31 C.C.C. (3d) 97, at p. 135 (leave to appeal refused [1987] 1 S.C.R. xii). To guide judges in the exercise of their discretion, this Court formulated a rule in Sherratt, supra: the judge should permit challenges for cause where there is a “realistic potential” of the existence of partiality. Sherratt was concerned with the possibility of partiality arising from pre-trial publicity. However, as the courts in this case accepted, it applies to all requests for challenges based on bias, regardless of the origin of the apprehension of partiality.

15 Applying Sherratt to the case at bar, the enquiry becomes whether in this case, the evidence of widespread bias against aboriginal people in the community raises a realistic potential of partiality.

Identifying the Evidentiary Threshold

16 Esson C.J. and the Court of Appeal applied the test of “realistic potential” of partiality. However, they took a different view from that of Hutchison J. as to when the evidence establishes a realistic potential of partiality. The debate before us divided on the same lines.

17 The Crown argues that evidence of widespread racial bias against persons of the accused’s race does not translate into a “realistic potential” for partiality. There is a presumption that jurors will act impartially, whatever their pre-existing views. Evidence of widespread bias does not rebut that presumption. More is required. The Crown does not detail what evidence might suffice. However, it emphasizes that the evidence must point to not only bias, but also partiality, or bias that may affect the outcome. What is required, in the Crown’s submission, is concrete evidence showing prejudice that would not be capable of being set aside at trial. The Crown interprets Parks, supra, where challenges for cause for racial bias in the community were permitted, as being an exceptional case where the nature and extent of the racial bias was sufficiently extreme to establish a reasonable possibility of partiality.

18 The defence takes a different view. First, it argues that Sherratt, supra, establishes that the right to challenge for cause is not exceptional or extraordinary or extreme. Second, it suggests that evidence of widespread prejudice against aboriginals in the community suffices to raise a “realistic potential” for partiality, entitling the accused to question potential jurors as to their prejudices as to whether they will be able to set them aside in discharging their duty as jurors. In the defence submission, the evidentiary threshold proposed by the Crown, Esson C.J. and the Court of Appeal is too high.

19 In my respectful view, the positions of the Crown, Esson C.J. and the Court of Appeal reflect a number of errors that lead to the evidentiary threshold for challenges for cause being set too high. I will discuss each of these in turn.

(1) The Assumption that Prejudice Will be Judicially Cleansed

20 Underlying the Crown’s submissions (as well as the judgments of Esson C.J. and the Court of Appeal) is the assumption that generally jurors will be able to identify and set aside racial prejudice. Only in exceptional cases is there a danger that racial prejudice will affect a juror’s impartiality. In contrast, the defence says that jurors may not be able to set aside racial prejudices that fall short of extreme prejudice. Is it correct to assume that jurors who harbour racial prejudices falling short of extreme prejudice will set them aside when asked to serve on a jury? A consideration of the nature of racial prejudice and how it may affect the decision-making process suggests that it is not.

21 To suggest that all persons who possess racial prejudices will erase those prejudices from the mind when serving as jurors is to underestimate the insidious nature of racial prejudice and the stereotyping that underlies it. As Vidmar, supra, points out, racial prejudice interfering with jurors’ impartiality is a form of discrimination. It involves making distinctions on the basis of class or category without regard to individual merit. It rests on preconceptions and unchallenged assumptions that unconsciously shape the daily behaviour of individuals. Buried deep in the human psyche, these preconceptions cannot be easily and effectively identified and set aside, even if one wishes to do so. For this reason, it cannot be assumed that judicial directions to act impartially will always effectively counter racial prejudice: see Johnson, supra. Doherty J.A. recognized this in Parks, supra, at p. 371:

In deciding whether the post-jury selection safeguards against partiality provide a reliable antidote to racial bias, the nature of that bias must be emphasized. For some people, anti-black biases rest on unstated and unchallenged assumptions learned over a lifetime. Those assumptions shape the daily behaviour of individuals, often without any conscious reference to them. In my opinion, attitudes which are engrained in an individual’s subconscious, and reflected in both individual and institutional conduct within the community, will prove more resistant to judicial cleansing than will opinions based on yesterday’s news and referable to a specific person or event.

22 Racial prejudice and its effects are as invasive and elusive as they are corrosive. We should not assume that instructions from the judge or other safeguards will eliminate biases that may be deeply ingrained in the subconscious psyches of jurors. Rather, we should acknowledge the destructive potential of subconscious racial prejudice by recognizing that the post-jury selection safeguards may not suffice. Where doubts are raised, the better policy is to err on the side of caution and permit prejudices to be examined. Only then can we know with any certainty whether they exist and whether they can be set aside or not. It is better to risk allowing what are in fact unnecessary challenges, than to risk prohibiting challenges which are necessary: see Aldridge v. United States, 283 U.S. 308 (1931), at p. 314, and Parks, supra.

23 It follows that I respectfully disagree with the suggestion in R. v. B. (A.) (1997), 33 O.R. (3d) 321 (C.A.), at p. 343, that a motion to challenge for cause must be dismissed if there is “no concrete evidence” that any of the prospective jurors “could not set aside their biases”. Where widespread racial bias is shown, it may well be reasonable for the trial judge to infer that some people will have difficulty identifying and eliminating their biases. It is therefore reasonable to permit challenges for cause. This is not to suggest that a prospective juror who on a challenge for cause admits to harbouring a relevant racial prejudice must necessarily be rejected. It is for the triers on the challenge for cause to determine: (1) whether a particular juror is racially prejudiced in a way that could affect his or her partiality; and (2) if so, whether the juror is capable of setting aside that prejudice.

24 Parliament itself has acknowledged that jurors may sometimes be unable to set aside their prejudices and act impartially between the Crown and the accused, despite our hope and expectation that they will do so. It is implicit in s. 638(2) that in Parliament’s view, jurors may harbour knowledge and prejudices that may not be entirely offset by the trial judge’s direction to decide the case impartially on the evidence. If judicial cleansing were a complete answer to the preconceptions and predispositions of jurors, there would be no need for s. 638(1)(b). Trial judges may conclude that some predispositions can be safely regarded as curable by judicial direction. However, s. 638(1)(b) reminds us that judicial cleansing is not always a complete answer. Where the predisposition is one as complex and insidious as racial prejudice, we should not assume without more that the judges’ instructions will always neutralize it.

25 This Court rejected the argument that prejudice based on pre-trial publicity could be cured by the safeguards in the trial process in Sherratt, supra, at p. 532, per L’Heureux-Dubé J.:

While it is no doubt true that trial judges have a wide discretion in these matters and that jurors will usually behave in accordance with their oaths, these two principles cannot supersede the right of every accused person to a fair trial, which necessarily includes the empanelling of an impartial jury.

The same may be said of many forms of prejudice based on racial stereotypes. The expectation that jurors usually behave in accordance with their oaths does not obviate the need to permit challenges for cause in circumstances such as the case at bar, where it is established that the community suffers from widespread prejudice against people of the accused’s race.

(2) Insistence on the Necessity of a Link Between the Racist Attitude and the Potential for Juror Partiality

26 The Court of Appeal, per Macfarlane J.A., stated that the existence of a significant degree of racial bias in the community from which the panel is drawn is, by itself, not sufficient to allow a challenge for cause because bias cannot be equated with partiality. The court held that in order for the appellant to be successful, there must be some evidence of bias against aboriginal persons which is of a particular nature and extent; evidence which only displays a “general bias” against a racial group is insufficient to warrant a challenge for cause. The Crown goes even further, arguing that racial prejudice in the community must be linked to specific aspects of the trial in order to support a challenge for cause. More particularly, it asserts that where, as here, the defence was that another aboriginal committed the crime, race could have no relevance because the jury was obliged to decide between two aboriginals.

27 I cannot, with respect, accept this contention. In my view, it is unduly restrictive. Evidence of widespread racial prejudice may, depending on the nature of the evidence and the circumstances of the case, lead to the conclusion that there is a realistic potential for partiality. The potential for partiality is irrefutable where the prejudice can be linked to specific aspects of the trial, like a widespread belief that people of the accused’s race are more likely to commit the crime charged. But it may be made out in the absence of such links.

28 Racial prejudice against the accused may be detrimental to an accused in a variety of ways. The link between prejudice and verdict is clearest where there is an “interracial element” to the crime or a perceived link between those of the accused’s race and the particular crime. But racial prejudice may play a role in other, less obvious ways. Racist stereotypes may affect how jurors assess the credibility of the accused. Bias can shape the information received during the course of the trial to conform with the bias: see Parks, supra, at p. 372. Jurors harbouring racial prejudices may consider those of the accused’s race less worthy or perceive a link between those of the accused’s race and crime in general. In this manner, subconscious racism may make it easier to conclude that a black or aboriginal accused engaged in the crime regardless of the race of the complainant: see Kent Roach, “Challenges for Cause and Racial Discrimination” (1995), 37 Crim. L.Q. 410, at p. 421.

29 Again, a prejudiced juror might see the Crown as non-aboriginal or non-black and hence to be favoured over an aboriginal or black accused. The contest at the trial is between the accused and the Crown. Only in a subsidiary sense is it between the accused and another aboriginal. A prejudiced juror might be inclined to favour non-aboriginal Crown witnesses against the aboriginal accused. Or a racially prejudiced juror might simply tend to side with the Crown because, consciously or unconsciously, the juror sees the Crown as a defender of majoritarian interests against the minority he or she fears or disfavours. Such feelings might incline the juror to resolve any doubts against the accused.

30 Ultimately, it is within the discretion of the trial judge to determine whether widespread racial prejudice in the community, absent specific “links” to the trial, is sufficient to give an “air of reality” to the challenge in the particular circumstances of each case. The following excerpt from Parks, supra, at pp. 378-79, per Doherty J.A., states the law correctly:

I am satisfied that in at least some cases involving a black accused there is a realistic possibility that one or more jurors will discriminate against that accused because of his or her colour. In my view, a trial judge, in the proper exercise of his or her discretion, could permit counsel to put the question posed in this case, in any trial held in Metropolitan Toronto involving a black accused. I would go further and hold that it would be the better course to permit that question in all such cases where the accused requests the inquiry.

There will be circumstances in addition to the colour of the accused which will increase the possibility of racially prejudiced verdicts. It is impossible to provide an exhaustive catalogue of those circumstances. Where they exist, the trial judge must allow counsel to put the question suggested in this case.

31 At the second stage of the actual challenge for cause, the issue of how any prejudice may play out in the context of the trial comes to the forefront. The triers may conclude that the connection between a prospective juror’s prejudices and the trial are so small that they cannot realistically translate into partiality. Conversely, the triers might conclude that a prospective juror’s beliefs that people of the accused’s race are more likely than others to commit the type of crime alleged are highly indicative of partiality. Such considerations, while not essential to finding a right to challenge for cause, may be determinative on the challenge for cause itself.

(3) Confusion Between the Two Phases of the Challenge for Cause Process

32 Section 638(2) requires two inquiries and entails two different decisions with two different tests. The first stage is the inquiry before the judge to determine whether challenges for cause should be permitted. The test at this stage is whether there is a realistic potential or possibility for partiality. The question is whether there is reason to suppose that the jury pool may contain people who are prejudiced and whose prejudice might not be capable of being set aside on directions from the judge. The operative verbs at the first stage are “may” and “might”. Since this is a preliminary inquiry which may affect the accused’s Charter rights (see below), a reasonably generous approach is appropriate.

33 If the judge permits challenges for cause, a second inquiry occurs on the challenge itself. The defence may question potential jurors as to whether they harbour prejudices against people of the accused’s race, and if so, whether they are able to set those prejudices aside and act as impartial jurors. The question at this stage is whether the candidate in question will be able to act impartially. To demand, at the preliminary stage of determining whether a challenge for cause should be permitted, proof that the jurors in the jury pool will not be able to set aside any prejudices they may harbour and act impartially, is to ask the question more appropriate for the second stage.

34 The Crown conflates the two stages of the process. Instead of asking whether there is a potential or possibility of partiality at the stage of determining the right to challenge for cause, it demands proof that widespread racism will result in a partial jury. The assumption is that absent such evidence, no challenge for cause should be permitted. This is not the appropriate question at the preliminary stage of determining the right to challenge for cause. The question at this stage is not whether anyone in the jury pool will in fact be unable to set aside his or her racial prejudices but whether there is a realistic possibility that this could happen.

(4) Impossibility of Proving That Racism in Society Will Lead to Juror Partiality

35 To require the accused to present evidence that jurors will in fact be unable to set aside their prejudices as a condition of challenge for cause is to set the accused an impossible task. It is extremely difficult to isolate the jury decision and attribute a particular portion of it to a given racial prejudice observed at the community level. Jury research based on the study of actual trials cannot control all the variables correlated to race. Studies of mock juries run into external validity problems because they cannot recreate an authentic trial experience: see Jeffrey E. Pfeiffer, “Reviewing the Empirical Evidence on Jury Racism: Findings of Discrimination or Discriminatory Findings?” (1990), 69 Neb. L. Rev. 230. As recognized by Doherty J.A. in Parks, supra, at p. 366, “[t]he existence and extent of [matters such as] racial bias are not issues which can be established in the manner normally associated with the proof of adjudicative facts”.

36 “Concrete” evidence as to whether potential jurors can or cannot set aside their racial prejudices can be obtained only by questioning a juror. If the Canadian system permitted jurors to be questioned after trials as to how and why they made the decisions they did, there might be a prospect of obtaining empirical information on whether racially prejudiced jurors can set aside their prejudices. But s. 649 of the Code forbids this. So, imperfect as it is, the only way we have to test whether racially prejudiced jurors will be able to set aside their prejudices and judge impartially between the Crown and the accused, is by questioning prospective jurors on challenges for cause. In many cases, we can infer from the nature of widespread racial prejudice, that some jurors at least may be influenced by those prejudices in their deliberations. Whether or not this risk will materialize must be left to the triers of impartiality on the challenge for cause. To make it a condition of the right to challenge to cause is to require the defence to prove the impossible and to accept that some jurors may be partial.

(5) Failure to Read s. 638(1)(b) Purposively

37 The object of s. 638(1)(b) must be to prevent persons who may not be able to act impartially from sitting as jurors. This object cannot be achieved if the evidentiary threshold for challenges for cause is set too high.

38 As discussed above, to ask an accused person to present evidence that some jurors will be unable to set their prejudices aside is to ask the impossible. We may infer in many cases, however, from the nature of racial prejudice, that some prospective jurors, in a community where prejudice against people of the accused’s race is widespread, may be both prejudiced and unable to identify completely or free themselves from the effects of those prejudices. It follows that the requirement of concrete evidence that widespread racism will cause partiality would not fulfill the purpose of s. 638(1)(b).

39 Similarly, an evidentiary threshold of extreme prejudice would fail to fulfill the object of s. 638(1)(b). Extreme prejudice is not the only sort of prejudice that may render a juror partial. Ordinary “garden-variety” prejudice has the capacity to sway a juror and may be just as difficult to detect and eradicate as hatred. A threshold met only in exceptional cases would catch only the grossest forms of racial prejudice. Less extreme situations may raise a real risk of partiality. Yet there would be no screening of jurors in those situations. The aim of the section -- to permit partial jurors to be identified and eliminated -- would be only partially achieved. The exceptional nature of a situation is a poor indicator of whether there is a realistic danger or potential of partiality. Widespread racial prejudice is by definition not exceptional. Indeed, the very fact that it is not exceptional may add to a concern that some members of the jury pool may possess attitudes that may interfere with the impartial discharge of their obligations.

40 This raises the question of what evidentiary standard is appropriate on applications to challenge for cause based on racial prejudice. The appellant appears to accept the standard of widespread racial prejudice in the community. Interveners, however, urge a lower standard. One suggestion is that all aboriginal accused should have the right to challenge for cause. Another is that any accused who is a member of a disadvantaged group under s. 15 of the Charter should have the right to challenge for cause. Also possible is a rule which permits challenge for cause whenever there is bias against the accused’s race in the community, even if that bias is not general or widespread.

41 A rule that accords an automatic right to challenge for cause on the basis that the accused is an aboriginal or member of a group that encounters discrimination conflicts from a methodological point of view with the approach in Sherratt, supra, that an accused may challenge for cause only upon establishing that there is a realistic potential for juror partiality. For example, it is difficult to see why women should have an automatic right to challenge for cause merely because they have been held to constitute a disadvantaged group under s. 15 of the Charter. Moreover, it is not correct to assume that membership in an aboriginal or minority group always implies a realistic potential for partiality. The relevant community for purposes of the rule is the community from which the jury pool is drawn. That community may or may not harbour prejudices against aboriginals. It likely would not, for example, in a community where aboriginals are in a majority position. That said, absent evidence to the contrary, where widespread prejudice against people of the accused’s race is demonstrated at a national or provincial level, it will often be reasonable to infer that such prejudice is replicated at the community level.

42 On the understanding that the jury pool is representative, one may safely insist that the accused demonstrate widespread or general prejudice against his or her race in the community as a condition of bringing a challenge for cause. It is at this point that bigoted or prejudiced people have the capacity to affect the impartiality of the jury.

43 I add this. To say that widespread racial prejudice in the community can suffice to establish the right to challenge for cause in many cases is not to rule out the possibility that prejudice less than widespread might in some circumstances meet the Sherratt test. The ultimate question in each case is whether the Sherratt standard of a realistic potential for partiality is established.

(6) Failure to Interpret s. 638(1)(b) in Accordance with the Charter

44 Parliament’s laws should be interpreted in a way that conforms to the constitutional requirements of the Charter: see Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038. More particularly, where Parliament confers a discretion on a judge, it is presumed that Parliament intended the judge to exercise that discretion in accordance with the Charter: see Slaight, supra. This applies to the discretion conferred on trial judges by s. 638(2) of the Code.

45 The s. 11(d) of the Charter guarantees to all persons charged in Canada the right to be presumed innocent “until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. A Charter right is meaningless, unless the accused is able to enforce it. This means that the accused must be permitted to challenge potential jurors where there is a realistic potential or possibility that some among the jury pool may harbour prejudices that deprive them of their impartiality.

46 This Court in Sherratt, supra, at p. 525, per L’Heureux-Dubé J., asserted the need for guarantees, as opposed to presumptions, of impartiality if Charter rights are to be respected:

The perceived importance of the jury and the Charter right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and representativeness, a jury would be unable to perform properly many of the functions that make its existence desirable in the first place.

Doherty J.A. in Parks, supra, at p. 362, similarly underlined the need for safeguards of the accused’s s. 11(d) Charter rights:

The accused’s statutory right to challenge potential jurors for cause based on partiality is the only direct means an accused has to secure an impartial jury. The significance of the challenge process to both the appearance of fairness, and fairness itself, must not be underestimated.

47 The challenge for cause is an essential safeguard of the accused’s s. 11(d) Charter right to a fair trial and an impartial jury. A representative jury pool and instructions from counsel and the trial judge are other safeguards. But the right to challenge for cause, in cases where it is shown that a realistic potential exists for partiality, remains an essential filament in the web of protections the law has woven to protect the constitutional right to have one’s guilt or innocence determined by an impartial jury. If the Charter right is undercut by an interpretation of s. 638(1)(b) that sets too high a threshold for challenges for cause, it will be jeopardized.

48 The accused’s right to be tried by an impartial jury under s. 11(d) of the Charter is a fair trial right. But it may also be seen as an anti-discrimination right. The application, intentional or unintentional, of racial stereotypes to the detriment of an accused person ranks among the most destructive forms of discrimination. The result of the discrimination may not be the loss of a benefit or a job or housing in the area of choice, but the loss of the accused’s very liberty. The right must fall at the core of the guarantee in s. 15 of the Charter that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination”.

49 Section s. 638(1)(b) should be read in light of the fundamental rights to a fair trial by an impartial jury and to equality before and under the law. A principled exercise of discretion in accordance with Charter values is required: see Sherratt, supra.

50 Although allowing challenges for cause in the face of widespread racial prejudice in the community will not eliminate the possibility of jury verdicts being affected by racial prejudice, it will have important benefits. Jurors who are honest or transparent about their racist views will be removed. All remaining jurors will be sensitized from the outset of the proceedings regarding the need to confront racial prejudice and will help ensure that it does not impact on the jury verdict. Finally, allowing such challenges will enhance the appearance of trial fairness in the eyes of the accused and other members of minority groups facing discrimination: see Parks, supra.

(7) The Slippery Slope Argument

51 The Crown concedes that practical concerns cannot negate the right to a fair trial. The Court of Appeal also emphasized this. Yet behind the conservative approach some courts have taken, one detects a fear that to permit challenges for cause on the ground of widespread prejudice in the community would be to render our trial process more complex and more costly, and would represent an invasion of the privacy interests of prospective jurors without a commensurate increase in fairness. Some have openly expressed the fear that if challenges for cause are permitted on grounds of racial prejudice, the Canadian approach will quickly evolve into the approach in the United States of routine and sometimes lengthy challenges for cause of every juror in every case with attendant cost, delay and invasion of juror privacy.

52 In my view, the rule enunciated by this Court in Sherratt, supra, suffices to maintain the right to a fair and impartial trial, without adopting the United States model or a variant on it. Sherratt starts from the presumption that members of the jury pool are capable of serving as impartial jurors. This means that there can be no automatic right to challenge for cause. In order to establish such a right, the accused must show that there is a realistic potential that some members of the jury pool may be biased in a way that may impact negatively on the accused. A realistic potential of racial prejudice can often be demonstrated by establishing widespread prejudice in the community against people of the accused’s race. As long as this requirement is in place, the Canadian rule will be much more restrictive than the rule in the United States.

53 In addition, procedures on challenges for cause can and should be tailored to protect the accused’s right to a fair trial by an impartial jury, while also protecting the privacy interests of prospective jurors and avoiding lengthening trials or increasing their cost.

54 In the case at bar, the accused called witnesses and tendered studies to establish widespread prejudice in the community against aboriginal people. It may not be necessary to duplicate this investment in time and resources at the stage of establishing racial prejudice in the community in all subsequent cases. The law of evidence recognizes two ways in which facts can be established in the trial process. The first is by evidence. The second is by judicial notice. Tanovich, Paciocco and Skurka observe that because of the limitations on the traditional forms of proof in this context, “doctrines of judicial notice [will] play a significant role in determining whether a particular request for challenge for cause satisfies the threshold test”: see Jury Selection in Criminal Trials (1997), at p. 138. Judicial notice is the acceptance of a fact without proof. It applies to two kinds of facts: (1) facts which are so notorious as not be the subject of dispute among reasonable persons; and (2) facts that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy: see Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), at p. 976. The existence of racial prejudice in the community may be a notorious fact within the first branch of the rule. As Sopinka, Lederman and Bryant note, at p. 977, “[t]he character of a certain place or of the community of persons living in a certain locality has been judicially noticed”. Widespread racial prejudice, as a characteristic of the community, may therefore sometimes be the subject of judicial notice. Moreover, once a finding of fact of widespread racial prejudice in the community is made on evidence, as here, judges in subsequent cases may be able to take judicial notice of the fact. “The fact that a certain fact or matter has been noted by a judge of the same court in a previous matter has precedential value and it is, therefore, useful for counsel and the court to examine the case law when attempting to determine whether any particular fact can be noted”: see Sopinka, Lederman and Bryant, supra, at p. 977. It is also possible that events and documents of indisputable accuracy may permit judicial notice to be taken of widespread racism in the community under the second branch of the rule. For these reasons, it is unlikely that long inquiries into the existence of widespread racial prejudice in the community will become a regular feature of the criminal trial process. While these comments are not necessarily limited to challenges for cause, the question whether they are applicable to other phases of the criminal trial is not to be decided in the present case.

55 At the stage of the actual challenge for cause, the procedure is similarly likely to be summary. The trial judge has a wide discretion in controlling the process to prevent its abuse, to ensure that it is fair to the prospective juror as well as to the accused, and to avoid the trial’s being unnecessarily prolonged by challenges for cause: see Hubbert, supra. In the case at bar, Hutchison J. at the first trial confined the challenge to two questions, subject to a few tightly controlled subsidiary questions. This is a practice to be emulated. The fear that trials will be lengthened and rendered more costly by upholding the right to challenge for cause where widespread racial prejudice is established is belied by the experience in Ontario since the ruling in Parks, supra. The Criminal Lawyers’ Association (Ontario), an intervener, advised that in those cases where the matter arises, an average of 35-45 minutes is consumed. The Attorney General for Ontario did not contradict this statement and supports the appellant’s position.

56 While cost-benefit analyses cannot ultimately be determinative, permitting challenges for cause on the basis of widespread prejudice against persons of the accused’s race seems unlikely to lengthen or increase significantly the cost of criminal trials. Nor, properly managed, should it unduly impinge on the rights of jurors. As Doherty J.A. stated in Parks, supra, at p. 379:

In reaching my conclusion I have not relied on a costs/benefit analysis. Fairness cannot ultimately be measured on a balance sheet. . . . The only “cost” is a small increase in the length of the trial. There is no “cost” to the prospective juror. He or she should not be embarrassed by the question; nor can the question realistically be seen as an intrusion into a juror’s privacy.

Summary

57 There is a presumption that a jury pool is composed of persons who can serve impartially. However, where the accused establishes that there is a realistic potential for partiality, the accused should be permitted to challenge prospective jurors for cause under s. 638(1)(b) of the Code: see Sherratt, supra. Applying this rule to applications based on prejudice against persons of the accused’s race, the judge should exercise his or her discretion to permit challenges for cause if the accused establishes widespread racial prejudice in the community.

Conclusion

58 Although they acknowledged the existence of widespread bias against aboriginals, both Esson C.J. and the British Columbia Court of Appeal held that the evidence did not demonstrate a reasonable possibility that prospective jurors would be partial. In my view, there was ample evidence that this widespread prejudice included elements that could have affected the impartiality of jurors. Racism against aboriginals includes stereotypes that relate to credibility, worthiness and criminal propensity. As the Canadian Bar Association stated in Locking up Natives in Canada: A Report of the Committee of the Canadian Bar Association on Imprisonment and Release (1988), at p. 5:

Put at its baldest, there is an equation of being drunk, Indian and in prison. Like many stereotypes, this one has a dark underside. It reflects a view of native people as uncivilized and without a coherent social or moral order. The stereotype prevents us from seeing native people as equals.

There is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system: see Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada, at p. 33; Royal Commission on the Donald Marshall, Jr., Prosecution: Findings and Recommendations, vol. 1 (1989), at p. 162; Report on the Cariboo-Chilcotin Justice Inquiry (1993), at p. 11. Finally, as Esson C.J. noted, tensions between aboriginals and non-aboriginals have increased in recent years as a result of developments in such areas as land claims and fishing rights. These tensions increase the potential of racist jurors siding with the Crown as the perceived representative of the majority’s interests.

59 In these circumstances, the trial judge should have allowed the accused to challenge prospective jurors for cause. Notwithstanding the accused’s defence that another aboriginal person committed the robbery, juror prejudice could have affected the trial in many other ways. Consequently, there was a realistic potential that some of the jurors might not have been indifferent between the Crown and the accused. The potential for prejudice was increased by the failure of the trial judge to instruct the jury to set aside any racial prejudices that they might have against aboriginals. It cannot be said that the accused had the fair trial by an impartial jury to which he was entitled.

60 I would allow the appeal and direct a new trial.

Appeal allowed.

Solicitors for the appellant: McCullough, Parsons, Victoria.

Solicitor for the respondent: The Attorney General of British Columbia, Victoria.

Solicitor for the intervener the Attorney General of Canada: The Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.

Solicitor for the intervener Aboriginal Legal Services of Toronto Inc.: Aboriginal Legal Services of Toronto Inc., Toronto.

Solicitor for the intervener the African Canadian Legal Clinic: The African Canadian Legal Clinic, Toronto.

Solicitors for the intervener the Urban Alliance on Race Relations (Justice): Falconer, Macklin, Toronto.

Solicitors for the intervener the Criminal Lawyers’ Association (Ontario): Pinkofsky, Lockyer, Toronto.

One Man's Struggle to Find Justice and Clear His Name

2009-09-11T19:28:00.000-07:00

One Man's Struggle to Find Justice and Clear His Name
by Heather Madore, from The Shield Magazine, February 2010.

It was a cool afternoon, some three decades ago.

At 1:20 p.m., the doors opened and everything seemed to move in slow motion.

He walked from his cell through the doors, across the yard, to the fence.

He stood looking up as the other inmates blocked off the way back, coming towards him, leaving him little choice.

As he had already written in a suicide note, he reminded himself, "Well if it's my day to die, then it's my day to die, and it's a good day to die."

In a super maximum-security prison, they shoot to kill and ask questions later.

His hands touched the fence, and his first move towards freedom -- one way or another.

That day John Caleb Moore made a choice. He chose to fight, to not simply sit back and accept the punishment.

To this day, Moore continues to fight his second-degree murder conviction in the death of a Sault Ste. Marie taxi driver for which he has always maintained his innocence.

The event
Early in the morning on June 30, 1978, taxi driver Donald Lanthier was found stabbed and strangled to death. Lanthier's body was discovered in a depression on the side of Third Line East in Sault Stre. Marie. Three men were charged in connection with the murder. Gordon Stevens was convicted of first-degree murder, and Moore andTerrance Hogan were convicted of second-degree murder.

John's story
"I wasn't even there," says Moore, now a Cambrian grad.

He says he spent most of the night before the murder driving around with his brother-in-law Richard Nicols. Earlier that day, he and Nicols had driven around with their friends, Stevens and Hogan.

"Just being in that car, being with them guys earlier in the day is the closest I came to knowing anything that happened."

During the summer of '78, the police approached Moore, then 23, three or four times, asking him questions.

"Asking what I knew, what I saw. I told them I didn't see much, know much. They really didn't bother me. They focused their intentions on Stevens and Hogan."

However, everything changed on Aug. 3 of that year.

"It was about 6:45 p.m., I was riding my bike to my father-in-law's place, and I got this uneasy feeling that something's going to happen, this very uneasy feeling."

As he approached the house, he spotted an unmarked police car. Going closer he saw his wife with their baby standing outside with her father. A police officer approached and informed Moore that he had a warrant for his arrest.

The trial began in January of 1979. During the trial, Moore says 35 people were called to the stand and none of them had any real evidence against him.

Still, after just two hours of deliberation, the jury came back with a guilty verdict for all three men. Moore was sentenced to a minimum of 10 years in prison before eligible for parole.

He began his sentence at the Ontario Sault Ste. Marie Jail, but after being segregated and getting into a fight with the guards, he was transferred to the Sudbury Jail, and later to Kingston Penitentiary.

"I got sent to Kingston Pen. That was the first time I'd been in a penitentiary in my whole life. You walk into this place, and it's like, you just can't believe it. It's like a dungeon, very cold, very medieval."

Later he would be transferred to the super-maximum security prison Millhaven in Bath, Ont.

While at Millhaven, Moore found his life in danger. After hearing "That fucking Indian's going to die," over and over again, he went into his cell and organized two boxes. One was for his lawyer and one was for his family, along with the suicide note. Then he went out into the yard.

To his surprise he made it over the first fence no program. He began to climb the second, but grew tired, fell off and sprained his ankle. He lay between the fences for a while, and a guard came by in a truck.

"It was like he was looking right at me, but he didn't see me and he drove back off."

The guard drove off, and Moore got up, climbed over the fence and began to run across the field towards the bush.

While running, he heard the guard in the truck step on the gas. Pulling the truck up in the middle of the field, the guard got out with a shotgun in his hand. Moore remembers the guard trying to talk to him, but the words didn't register at first. When they did, he realized he was being warned that the guards in the tower were going to shoot him.

He turned to the guard and said: "You shoot me five times. I don't care. I'd rather be dead than spend the rest of my life in prison for something I didn't do."

Shortly after, he ended up back in "the hole" in the institution for 60 days.

Just before Christmas, he received a letter telling him his wife Cindy, who was pregnant with their second son, telling him that she couldn't wait for him and that it was over.

"It hit me like a ton of bricks. It was like I just didn't give a shit anymore. My whole lifeline was gone."

After getting the letter, Moore was transferred back to Kingston Penitentiary.

In December of 1981, Moore was given a new trial. During the trial, some of the evidence from the first trial was disallowed, but he was again convicted.

After the second conviction, he began to think about suicide again.

"Thinking, what's the use, you know?"

In 1982, Moore started a letter writing campaign to various MPs, and MPPs, and he began doing more research.

"Something just entered into me. I was right at that borderline (between light and dark), I could have easily slipped off to the dark side and went into anger, but for some reason that other energy came into me and brought me over to the light side."

While in prison, he went through a series of appeals but to no avail.

Eventually he was placed in the minimum-security Beaver Creek Institution, in Gravenhurst, and got a taste of freedom.

"I was on this work location working for the MNR. I built a lean-to and a little fireplace. One day I was there and I saw this buck about 300 yards away. I went and tried to get a closer look at him. As I got closer, a bunch of the deer started to run away. Something came over me and I started running after the deer. I ran after them, and I ran and I ran and I ran. It was just so awesome running. I just couldn't stop because when I ran, it was like everything, that freedom that I lost came back at that moment."

However, this freedom only lasted a minute, and Moore came to his senses and returned to work.

In 1987, section 21(2) of the Criminal Code, under which Moore was convicted, was repealed and deemed unconstitutional. His lawyers began another appeal, but again nothing came of it.

Also that year, he put in a request to be transferred to a halfway house in Sudbury.

In August of 1987, Moore was released from prison to Newberry House.

However, while he was no longer physically locked away, he still felt imprisoned.

"The hardest thing was not getting to watch my sons grow up. I don't have a relationship with them now. People don't understand that I've lost a lot more than anyone can imagine."

The fight
Since the day of his release, 23 years ago, Moore has been fighting to bring his case before the public, to reform the justice system, to demonstrate the racial bias that exists in the system, and to have his name cleared.

In addition he is writing a book about everything that he has gone through. With only two chapters left to go, he hopes that when people read the book, it will help put pressure on the government and have them review his case.

Aside from his book, Moore is also trying to get national media coverage. There have been many stories written about his case here in Sudbury and in the surrounding area, but he believes that national media media attention will help push his case forward.

He has a new video documentary up on Youtube called For Justice Sake, and a blog, http://justiceandfreedomforjohnmoore.blogspot.com, where readers can find his story, and letters from John, his lawyer and some of his supporters.

He has also put together a new brief for the government to try and get them to review his case.

Moore has no intention of giving up his fight until he reaches his goal of full exoneration.

"Justice is justice. It's for everybody, you can't just give up because 'they' say certain things, because they don't want to look at the facts."