R. v. Bouchard, (1982) 13 Man.R.(2d) 344 (CA)

• Judge: Monnin, Matas and O'Sullivan, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: November 18, 1981
• Jurisdiction: Manitoba
• Citations: (1982), 13 Man.R.(2d) 344 (CA)

R. v. Bouchard (1982), 13 Man.R.(2d) 344 (CA)

MLB headnote and full text

R. v. Bouchard

(No. 226/81)

Indexed As: R. v. Bouchard

Manitoba Court of Appeal

Monnin, Matas and O'Sullivan, JJ.A.

February 25, 1982.

Summary:

The accused was charged with perjury, contrary to s. 120 of the Criminal Code. The Manitoba County Court in a decision reported in 11 Man.R.(2d) 339 convicted the accused on the uncorroborated confession of the accused that his testimony in a previous trial was a lie. The accused appealed.

The Manitoba Court of Appeal allowed the appeal, because the accused's explanation for his confession, which he repudiated at the perjury trial, raised a reasonable doubt of guilt. O'Sullivan, J.A., in paragraphs 42 to 63, held that corroboration of the accused's confession, the second issue on appeal, was essential. Monnin, J.A., dissenting in paragraphs 1 to 31 below, would have dismissed the appeal because corroboration was not necessary and the accused's confession was sufficient to prove guilt.

Criminal Law - Topic 511

Perjury - Corroboration - The accused testified in a trial against another - Subsequently, the accused confessed to the police that his testimony was a lie - The accused was charged with perjury and at the trial the accused repudiated the confession - O'Sullivan, J.A., of the Manitoba Court of Appeal held that corroboration of the accused's confession was necessary for a conviction - Monnin, J.A., of the Manitoba Court of Appeal, dissenting, was of the opinion that corroboration was not necessary - See paragraphs 15 to 31 and 42 to 63.

Criminal Law - Topic 512

Perjury - Evidence and proof - Monnin, J.A., of the Manitoba Court of Appeal, in a dissenting judgment, stated the elements of a perjury charge - See paragraph 13.

Criminal Law - Topic 512

Perjury - Evidence and proof - The accused testified in a trial against another - Subsequently, the accused confessed to the police that his testimony was a lie - The accused was charged with perjury - At the trial, the accused repudiated his confession and explained why he made it - The accused's confession was not corroborated - The Manitoba Court of Appeal allowed the accused's appeal from conviction because the accused's explanation raised a reasonable doubt of guilt - See paragraphs 32 to 41.

Criminal Law - Topic 4971

Appeals - Indictable offences - Powers of court of appeal - Receiving fresh evidence - General - At a perjury trial the Crown moved to have voir dire evidence (voir dire to determine admissibility of accused's confession to lying at earlier trial) admitted as part of the trial evidence but accused's counsel refused to consent - On appeal the accused's counsel moved to admit the evidence - The Manitoba Court of Appeal held that, as a general rule, the accused's motion was too late, but exercised its discretion to admit the new evidence - See paragraphs 34 to 36.

Cases Noticed:

R. v. Brewer, [1921] 2 W.W.R. 100; 34 C.C.C. 341, consd. [paras. 23, 50].

R. v. Gauthier (1975), 10 M.R. 373; [1977] 1 S.C.R. 441; 33 C.R.N.S. 46, refd to. [para. 34].

R. v. Siniarski, [1969] 3 C.C.C. 228, refd to. [para. 39].

R. v. Harris (1822), 5 B. & Ald. 926; 106 E.R. 1430, refd to. [para. 50].

R. v. Knill (1822), 5 B. & Ald. 929; 106 E.R. 1431, refd to. [para. 50].

R. v. Hook (1858), Dears & Bell 606; 169 E.R. 1138; 8 Cox C.C. 5, consd. [para. 50].

R. v. Wheatland (1838), 8 Car. & P. 238; 173 E.R. 476, refd to. [para. 51].

R. v. Gaynor (1839), 1 Cr. & Dix 142, refd to. [para. 51].

R. v. Hughes (1844), 1 C. & K. 519; 174 E.R. 919, refd to. [para. 51].

R. v. Robertson, [1936] 3 D.L.R. 508, refd to. [para. 51].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 120, sect. 120(1) [para. 2]; sect. 123 [paras. 2, 47].

Narcotic Control Act, R.S.C. 1970, c. N-1 [para. 39].

Canada Evidence Act, R.S.C. 1970, c. E-10 [para. 37].

Authors and Works Noticed:

Wigmore on Evidence (Chadbourn Rev. 1978), vol. 7, pp. 376, 377, para. 2043 [para. 21].

Counsel:

R.L. Tapper, for the appellant;

S.J. Whitley, for the respondent.

This case was heard on November 18, 1981, by MONNIN, MATAS and O'SULLIVAN, JJ.A., of the Manitoba Court of Appeal. On February 25, 1982, the decision of the Court of Appeal was delivered and the following opinions were filed:

MONNIN, J.A., dissenting - see paragraphs 1 to 31;

MATAS, J.A. - see paragraphs 32 to 41;

O'SULLIVAN, J.A., concurring with MATAS, J.A. - see paragraphs 42 to 63.