R. v. Dionne, (1987) 79 N.B.R.(2d) 297 (CA)

• Judge: Angers, Rice and Ayles, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 09, 1987
• Jurisdiction: New Brunswick
• Citations: (1987), 79 N.B.R.(2d) 297 (CA)

R. v. Dionne (1987), 79 N.B.R.(2d) 297 (CA);

    79 R.N.-B.(2e) 297; 201 A.P.R. 297

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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R. v. Dionne

(4/85/CA)

Indexed As: R. v. Dionne

New Brunswick Court of Appeal

Angers, Rice and Ayles, JJ.A.

June 9, 1987.

Summary:

A paid informer told the police that the accused wanted to hire him to beat up a customs officer and other people. The police decided to conduct an investigation using an agent provocateur. The agent provocateur was incited by the accused to commit certain offences. The accused was charged on counts of having "procured" the agent provocateur to commit an offence by advising and inciting him to do certain things. The accused was found guilty and appealed his conviction.

The Court of Appeal of New Brunswick allowed the appeal and ordered a new trial. The Court held that the counts were defective and that the judge had erred in his instructions to the jury.

Courts - Topic 586

Judges - Duties - Duty to hear evidence and submissions on behalf of litigant - Counsel for an accused wanted to raise the defence of entrapment and told the judge that there were sound recordings of certain conversations between his client and an agent provocateur to the effect that the police officer apparently incited the accused to commit an offence - The judge refused to listen to the sound recordings and refused to accept any evidence concerning the police investigation - A judge of the New Brunswick Court of Appeal held that the judge had erred in law by refusing to listen to the sound recordings before making his decision - See paragraph 27.

Criminal Law - Topic 205

General principles - Defences - Common law - Entrapment - Agent provocateur - A judge of the New Brunswick Court of Appeal held that in order to establish a defence of entrapment, it had to be shown that the police entrapment was such that the act with which the accused was charged was one of submission, devoid of any criminal intent - See paragraph 81.

Criminal Law - Topic 2763

Attempts, conspiracies, accessories - Counselling another to commit offence - What constitutes - A judge of the New Brunswick Court of Appeal held that the offence of incitement implied actions which were more serious than those of conveying one's intention to have something done - The actions or words had to be such that they would induce a person to commit the intended offences - Passive communication does not constitute an offence - See paragraph 21.

Criminal Law - Topic 4391

Procedure - Jury charge - Redirection or further direction - After having begun their deliberations, a jury requested further instructions from the judge - The judge gave them a transcript of certain testimony and some sound recordings - A judge of the Court of Appeal of New Brunswick held that the procedure constituted an error - The jurors should have taken the judge's instructions, and if that was not sufficient, they should have heard the recordings and had the testimony read in the courtroom in the presence of the judge, the accused and counsel - See paragraphs 47 to 56.

Cases Noticed:

R. v. Mack (1985), 23 C.C.C.(3d) 421, consd. [para. 28].

R. v. Amato, [1982] 2 S.C.R. 418; 42 N.R. 487, refd to. [para. 29].

R. v. Jewett, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 29].

Sorrells v. U.S. (1932), 287 U.S. 435, refd to. [para. 35].

Newman v. U.S. (1924), 299 F. 128, refd to. [para. 35].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, apprvd. [para. 41].

R. v. Wong (1978), 41 C.C.C.(2d) 196, apprvd. [para. 51].

R. v. Wydryk and Wilkie (1972), 17 C.R.N.S. 336 (B.C.C.A.), refd to. [para. 55].

R. v. O'Leary and O'Leary (1982), 43 N.B.R.(2d) 50; 113 A.P.R. 50, folld. [para. 62].

R. v. Colpitts, [1965] S.C.R. 739, folld. [para. 63].

Brooks v. The Queen, [1927] S.C.R. 633, refd to. [para. 63].

R. v. Wong On (No. 3) (1904), 8 C.C.C. 423 (B.C.C.A.), refd to. [para. 68].

R. v. Kirzner, [1978] 2 S.C.R. 487; 18 N.R. 400, refd to. [para. 75].

R. v. Baxter (1984), 9 C.C.C.(3d) 555, refd to. [para. 78].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 24 [paras. 23, 79, 87 to 89].

Criminal Code, R.S.C. 1970, c. C-34, sect. 331(1)(a) [para. 10]; sect. 422 [paras. 1, 13]; sect. 613(1)(b)(iii) [para. 61].

Authors and Works Noticed:

Fortin and Viau, Traité de Droit Pénal Général [paras. 7, 15, 75, 80].

Counsel:

John C. Friel, for the appellant;

Graham J. Sleeth, for the respondent.

This appeal was heard before Angers, Rice and Ayles, JJ.A., of the New Brunswick Court of Appeal on May 20, 1986.

The decision of the New Brunswick Court of Appeal was delivered on June 9, 1987.

Ayles, J.A. - see paragraphs 1 to 72;

Angers, J.A. - see paragraphs 73 to 82;

Rice, J.A. - see paragraphs 83 to 90.