• Lewis Waring

Silent Video Evidence Insufficient for Murder - Samantha Harvey



The case of R v Ducharme (“Ducharme”) is a recent decision by the Manitoba Court of Queen’s Bench (“the MBQB”) concerning the murder of an inmate at Stony Mountain Institution, the federal prison in Manitoba. On April 22, 2019, a prisoner of the federal institution was fatally stabbed fifty-two times and left to die in his cell. Two inmates, Mr. Fisher and Mr. Edwards, pleaded guilty to first-degree murder. The Crown in Ducharme attempted to prove that another inmate, Ducharme, aided and abetted the murder and was an accessory after the fact. Throughout the entire case, the Crown based their argument on silent security footage from the prison which recorded the events of the day. Yet still, the Crown argued that careful analysis of the video footage would prove Ducharme’s guilt beyond a reasonable doubt.

This commentary will summarize the MBQB’s findings with respect to the charges of being a party to first-degree murder and accessory after the fact. The summary will include analyzing Ducharme’s claim of duress, providing a recent Manitoban example of a successful use of the rare defence. The commentary will end with a brief remark about the Crown’s decision to pursue the charges against Ducharme.


Aiding and Abetting


In Canada, a party to an offence is treated the same as the principal offender. Under subsection 21(1) of the Criminal Code (“the Code”), everyone is a party to an offence who either aids or abets any person in committing the offence. The MBQB clarified that Ducharme cannot be charged under 21(1) for solely being present around the time of the offence. The MBQB needed to inquire whether Ducharme actually aided in the commission of the offence and whether his actions were done for the purpose of aiding the principals in the commission of the crime, with the knowledge that an offence would be committed. McCarthy J, the presiding justice, added that to convict Ducharme for first-degree murder as a party to the offence, the Crown had to prove beyond a reasonable doubt either that he intended that death ensued or else that he or the perpetrator would cause bodily harm of a kind likely to result in death and was reckless to whether death ensued or not.

The Crown inferred from the silent and blurry security footage—showing Ducharme walking with Edwards and Fisher—that it was clear that Ducharme knew of the plan to harm Fillion and also likely knew that the perpetrators possessed a weapon. Not only did Ducharme supposedly know of the plan, but the Crown also inferred that he aided the murder by luring Fillion into his cell on the promise of drugs. After the murder, Ducharme followed Edwards and Fisher to the shower where he provided Fisher his sandals and was given the murder weapon in exchange—which he disposed of in a nearby garbage bin. The Crown maintained that they had proven Ducharme’s involvement in the murder beyond a reasonable doubt. The murder was planned and deliberate, and Ducharme either knew or was willfully blind to the plan. Hereafter, the Crown argued that no other reasonable conclusion could be reached.

Justice McCarthy (“McCarthy J”) and Ducharme’s defence counsel disagreed with the Crown. The defence argued that the Crown’s evidence was purely circumstantial. McCarthy J found that, unlike other prominent aiding and abetting cases, Ducharme did not clearly play an active role in any of the events leading up to the murder nor were there any witnesses that could reliably testify to Ducharme’s involvement. Although Ducharme might have had the opportunity to discuss a plan, there was no evidence to prove he actually did know of the plan. During the murder, there were no signals or glances between Ducharme and Fisher or Edwards indicating mutual involvement. Further, McCarthy J noted that Ducharme’s disposal of the weapon appeared disorganized. With a prearranged plan, Ducharme would likely have gone straight to where he had planned to dispose of the weapon. Yet, Ducharme started in the direction of his cell when he abruptly turned around and headed towards the garbage bin instead; indicating he changed his mind of where he should dispose of the weapon. McCarthy J found that the Crown’s suspicion of Ducharme’s involvement was not supported by the video footage. Since McCarthy J could reasonably doubt Ducharme’s involvement, Ducharme could not be convicted for first-degree murder as a party to the offence.


Accessory After the Fact


Section 23 of the Code states that anyone is an accessory after the fact “who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.” In Ducharme, there is no doubt that Ducharme assisted Fisher and Edwards hide their involvement in the crime by disposing of the murder weapon. For this charge, Ducharme provided the common law defence of duress.

There are several preconditions that must be met in order to have a successful defence of duress at common law. There must be an urgent situation of clear and imminent peril, it must be demonstrably impossible to comply with the law, and the unlawful act must be proportional to the threatened harm. In R v Ruzic (“Ruzic”), the Supreme Court of Canada (“the Court”) explained that the accused is also expected to show some fortitude and demonstrate normal resistance to the threat. The Court in Ruzic further explained that the threat must also deprive the accused of any safe avenue of escape that would be reasonable to anyone else in the same situation.

In Ducharme, the doctrine of duress was applied within the confines of a prison with several patrolling guards. This availability of protection posed issues for the defence when arguing that Ducharme had no safe avenue of escape. However, McCarthy J believed that the defence could be upheld. What is considered a “safe avenue of escape” is determined on a modified objective standard that takes into account the capabilities of the accused. Ducharme testified that he only disposed of the murder weapon because Fisher had threatened to kill him if he did not comply. Ducharme and Fisher had been imprisoned together before, where Fisher allegedly stabbed three people. There is also evidence that Ducharme was regularly abused by Edwards and Fisher, who “ran the range.” Thus, McCarthy J understood Ducharme’s apprehension of harm to be reasonable. McCarthy J also believed the defence counsel’s position that, although it may have been possible for Ducharme to inform someone of the threat of harm he faced, it did not guarantee his safety. Ducharme knew that it took a significant amount of time to effect a transfer of an inmate to another range and was aware of the danger he would be in if he were to be labelled a “snitch” in the meantime.

Thus, all of the preconditions for the defence of duress were met: Ducharme was in an urgent situation of clear and imminent peril when Fisher threatened to kill him if he did not dispose of the weapon, he likely could not comply with the law without risking serious harm, and the unlawful act of disposing of the weapon was proportional to the threatened harm of death. Furthermore, a reasonable person in the same situation as Ducharme would have felt that they had “no true choice” other than to dispose of the weapon, and Ducharme had no guaranteed safe avenue of escape. Therefore, McCarthy J acquitted Ducharme on the charge of accessory after the fact due to the fact that she was not convinced beyond a reasonable doubt of Ducharme’s willing involvement in the crime as a result of the defence of duress being successfully raised.


Reflection


Ducharme demonstrates the importance of having a high standard of proof—beyond a reasonable doubt—in murder cases. The Crown prosecutors in Ducharme were absolutely sure in their conviction of Ducharme for aiding in the murder of Fillion and being an accessory after the fact. Yet, the only evidence the Crown had to support these serious charges was the silent and blurry security footage which showed no clear collusion between Fisher, Edwards and Ducharme. The evidence, in my opinion, was overwhelmingly weak. Accordingly, I am struck by the Crown’s steadfast pursuit of Ducharme’s conviction.

It is common knowledge that the Crown should allow evidence to guide their perception of an incident in any given case. In Ducharme, however, it appears as though the Crown fixated on one possibility that may have been inferred from the video footage and configured the evidence so that it supported their desired result—the conviction of Ducharme. Although Ducharme was not charged as the principal offender in the murder, the accompanying stigma and consequences of aiding first-degree murder are just as serious and debilitating. It is important to note that, if the Crown has to infer a significant portion of their evidence, it increases the possibility for a wrongful conviction. Ducharme was in the midst of serving a three-year sentence for armed robbery. While three years is a long time, it is nothing in comparison to the sentence he could have received if he was found guilty of being a party to first-degree murder. A wrongful conviction in this case could have cost Ducharme the ability to rebuild his life.

Fortunately, McCarthy J was similarly unimpressed with the lack of evidence to support the Crown’s position and was able to determine the most reasonable implication of the video evidence. McCarthy J was adamant in stating that “suspicion is not sufficient to prove guilt in a criminal case, and particularly, in a murder case.” The case of Ducharme serves as an important reminder for the Crown to proceed with caution when pursuing serious charges based on weak circumstantial evidence.

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