R. v. Bazinet, (1986) 14 O.A.C. 15 (CA)

• Judge: Lacourcière, Cory and Tarnopolsky, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 24, 1986
• Jurisdiction: Ontario
• Citations: (1986), 14 O.A.C. 15 (CA);1986 CanLII 108 (NS CA);1986 CanLII 108 (ON CA);54 OR (2d) 129;25 CCC (3d) 273;51 CR (3d) 139;[1986] CarswellOnt 107;[1986] OJ No 187 (QL);14 OAC 15;16 WCB 164

R. v. Bazinet (1986), 14 O.A.C. 15 (CA)

MLB headnote and full text

R. v. Bazinet

Indexed As: R. v. Bazinet

Ontario Court of Appeal

Lacourcière, Cory and Tarnopolsky, JJ.A.

March 24, 1986.

Summary:

The accused was charged with first degree murder, contrary to s. 218(1) of the Criminal Code of Canada. A jury found the accused guilty of the included offence of second degree murder. The accused appealed his conviction on the grounds that certain inculpatory statements made by him should have been excluded from the evidence because he was denied his right to counsel under s. 10(b) of the Charter of Rights, and that the trial judge was wrong in withdrawing the defence of drunkenness from the jury.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 3604

Detention - What constitutes - Police attended at the accused's residence and advised that they wished to question him respecting a murder - The accused was not then a suspect - The accused voluntarily accompanied them to the station - The Ontario Court of Appeal held that the accused was not detained within s. 10(b) of the Charter, because the police made no "demand or direction" on him, he did not submit or acquiesce in a deprivation of his liberty because he reasonably believed he had no choice, he was under no physical restraint and there was no basis to compel his attendance - The court held that neither the coercive atmosphere of the station nor asking the accused to submit his clothing for examination contributed to a finding of detention - See paragraphs 21 to 35.

Civil Rights - Topic 4613

Right to counsel - Requirement of detention - Police attended at an accused's residence and advised that they wished to question him respecting a murder investigation - The accused voluntarily accompanied them to the station where, after some questioning, he gave certain inculpatory statements - The Ontario Court of Appeal held that the accused had no right to be informed of his right to counsel prior to being questioned, because he was not detained within s. 10(b) of the Charter - See paragraphs 21 to 35.

Criminal Law - Topic 4356

Procedure - Jury charge - Directions regarding intent or mens rea - Drunkenness - An accused consumed 12 bottles of beer between 1:00 p.m. and the time of a murder (8:30 to 9:30 p.m.) - However, not one witness who observed the accused attested to any degree of drunkenness - All who saw him after the killing testified that he appeared normal - The Ontario Court of Appeal held that the trial judge was correct in withdrawing the defence of drunkenness from the jury - See paragraphs 37 to 39.

Cases Noticed:

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481, appld. [para. 21].

R. v. Esposito (1985), 12 O.A.C. 350, dist. [para. 27].

R. v. Rodenbush and Rodenbush, 14 W.C.B. 327, dist. [para. 32].

Miranda v. Arizona (1966), 384 U.S. 436, refd to. [para. 33].

Oregon v. Mathiason (1977), 429 U.S. 492, refd to. [para. 33].

California v. Beheler (1983), 103 S.Ct. 3517, refd to. [para. 34].

R. v. Gorman (1972), 9 C.C.C.(2d) 318 (Ont. C.A.), refd to. [para. 37].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [paras. 1, 18, 21, 33, 35-36].

Authors and Works Noticed:

Shorter Oxford English Dictionary [para. 29].

Webster's New World Dictionary [para. 29].

Ontario Encyclopedic Digest [para. 30].

Counsel:

Marc Rosenberg, for the appellant;

Douglas C. Hunt, Q.C., for the respondent.

This appeal was heard before Lacourcière, Cory and Tarnopolsky, JJ.A., of the Ontario Court of Appeal on December 3 and 4, 1985. The decision of the Court of Appeal was delivered by Tarnopolsky, J.A., and released on March 24, 1986.