R. v. Dionne (M.), (1990) 107 N.B.R.(2d) 38 (CA)

• Judge: Angers, Rice and Ayles, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: May 09, 1990
• Jurisdiction: New Brunswick
• Citations: (1990), 107 N.B.R.(2d) 38 (CA)

R. v. Dionne (M.) (1990), 107 N.B.R.(2d) 38 (CA);

    107 R.N.-B.(2e) 38; 267 A.P.R. 38

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[French language version follows English language version]

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

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Maurice Dionne (appellant) v. Her Majesty The Queen (respondent)

(245/89/CA)

Indexed As: R. v. Dionne (M.)

New Brunswick Court of Appeal

Angers, Rice and Ayles, JJ.A.

May 9, 1990.

Summary:

The accused was convicted by a jury of four counts of counselling the commission of an assault, contrary to s. 422(a) of the Criminal Code, R.S.C. 1970, c. C-34. The accused appealed.

The New Brunswick Court of Appeal, in a judgment reported 79 N.B.R.(2d) 297; 201 A.P.R. 297, allowed the appeal and ordered a new trial.

The accused was convicted by a second jury of two counts of counselling the commission of an assault. The accused appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Criminal Law - Topic 2765

Attempts, conspiracies, accessories and parties - Counselling another to commit offence - Jury charge - An accused was charged with counselling the commission of an assault - The New Brunswick Court of Appeal stated that the jury must be instructed to determine first whether the words and actions of the accused were capable of inciting, procuring or counselling the commission of the offence and, secondly, whether those words and actions were said and done with the intention to counsel the commission of the offence - See paragraphs 8 to 9.

Criminal Law - Topic 4357

Procedure - Jury charge - Directions re theory of defence - An accused was convicted of counselling the commission of an assault - The trial judge informed the jury that he was obliged to review the theory of the defence, but then failed to fairly present those theories to the jury - The trial judge also erred in failing to warn the jury not to rely on similar fact evidence as proof that the accused was the type of person who would commit the offence charged - The New Brunswick Court of Appeal dismissed the accused's appeal notwithstanding the errors, because there was no miscarriage of justice where the verdict would necessarily have been the same - See paragraphs 12 to 19, 24 to 27.

Criminal Law - Topic 4379

Procedure - Jury charge - Directions re evidence of character or credibility of accused - [See Criminal Law - Topic 4357].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscarriage of justice - Miscarriage of justice - What constitutes - [See Criminal Law - Topic

4357].

Cases Noticed:

R. v. Dionne (1987), 79 N.B.R.(2d) 297; 201 A.P.R. 297, refd to. [para. 2].

R. v. Deegan (1980), 17 A.R. 187; 49 C.C.C.(2d) 417 (C.A.), refd to. [para. 14].

R. v. Imrich, [1978] 1 S.C.R. 622; 15 N.R. 227, refd to. [para. 14].

R. v. McVay (1982), 66 C.C.C.(2d) 512 (Ont. C.A.), refd to. [para. 14].

R. v. Cavanagh and Donaldson (1976), 33 C.C.C.(2d) 134 (Ont. C.A.), refd to. [para. 14].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321, refd to. [para. 17].

R. v. Brooks, [1927] S.C.R. 633, refd to. [para. 24].

R. v. O'Leary (1982), 43 N.B.R.(2d) 50; 113 A.P.R. 50, refd to. [para. 25].

R. v. Mahoney, [1982] 1 S.C.R. 834; 41 N.R. 582 (S.C.C.), refd to. [para. 25].

Schmidt v. R., [1945] S.C.R. 438, refd to. [para. 25].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 422(a) [para. 1].

Criminal Code, R.S.C. 1985, c. C-46, sect. 464(a) [para. 1]; sect. 686(1)(b)(iii) [para. 24].

Counsel:

John C. Friel, for the appellant;

Graham J. Sleeth, for the respondent.

This appeal was heard on January 8, 1990, before Angers, Rice and Ayles, JJ.A., of the New Brunswick Court of Appeal.

On May 9, 1990, Ayles, J.A., delivered the following judgment for the Court of Appeal.