R. v. Gagnon, (1983) 49 N.B.R.(2d) 285 (CA)

• Judge: Ryan, Stratton and Angers, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: April 07, 1983
• Jurisdiction: New Brunswick
• Citations: (1983), 49 N.B.R.(2d) 285 (CA)

R. v. Gagnon (1983), 49 N.B.R.(2d) 285 (CA);

    49 R.N.-B.(2e) 285; 129 A.P.R. 285

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R. v. Gagnon

(No. 110/82/CA)

Indexed As: R. v. Gagnon

Répertorié: R. v. Gagnon

New Brunswick Court of Appeal

Ryan, Stratton and Angers, JJ.A.

September 14, 1983.

Summary:

Résumé:

The accused was convicted of first degree murder by a jury. The accused appealed against conviction.

The New Brunswick Court of Appeal allowed the appeal and substituted a verdict of second degree murder.

Criminal Law - Topic 1278

Murder during commission of other offences - Jury charge - An accused was charged with first degree murder - The jury had to determine whether the accused inflicted bodily harm to facilitate the commission of robbery or a sexual offence or whether he acted in a panic without any particular intent - The New Brunswick Court of Appeal held that the trial judge erred in failing to instruct the jury that for constructive murder under s. 213(a), three elements were necessary (1) a specific intent to cause bodily harm to facilitate the commission of an offence underlying s. 213 (2) a general intent to commit the underlying offence and (3) that death ensued from the bodily harm - See paragraphs 8 to 15; 21 to 22.

Criminal Law - Topic 1299

Murder - Defences - Jury charge - Re intent and drunkenness - An accused was charged with first degree murder - Although evidence of drunkenness was not overwhelming, there was some evidence of drinking for the jury to consider - The trial judge did not deal with drunkenness separately as an issue going to intent, but only when discussing the arguments of the defence - The New Brunswick Court of Appeal held that the trial judge's charge might lead the jury to believe that the accused must prove his incapacity to form the necessary intent, because of intoxication, when in fact the prosecution had the onus of proving the intent - See paragraphs 16 to 19.

Criminal Law - Topic 4978

Appeals - Indictable offences - Powers of court of appeal - Power to substitute verdict - The accused was convicted of first degree murder - The trial judge erred in admitting oral and written statements by the accused to police - The judge also misdirected the jury respecting the intent for constructive murder and drunkenness - There was overwhelming evidence that the accused was guilty of murder, but inconclusive evidence for the jury of whether the accused inflicted the bodily harm (which caused the death) to facilitate the commission of indecent assault or robbery - The New Brunswick Court of Appeal substituted a verdict of guilty of the included offence of second degree murder - See paragraphs 30 to 43.

Criminal Law - Topic 5301

Evidence and witnesses - Admissibility of private communications - Notice of intention to offer the communication as evidence - While an accused was detained pending trial, he talked with another inmate about his case - The inmate informed the police, was wired with a tape recorder, and taped their further conversations - The New Brunswick Court of Appeal held that the taped conversations were admissible, regardless that no notice was given the accused under s. 178.16(4) of the Criminal Code of Canada, because one party to the conversation consented to the conversation being recorded - See paragraph 28.

Criminal Law - Topic 5337

Evidence and witnesses - Confessions and voluntary statements - Admissibility - General - An accused gave written and oral statements to the police - The police officer testified that he "lectured" the accused but instead of relating the actual words used to the accused, was allowed to state his opinion as to what he did - The New Brunswick Court of Appeal held that the statements were inadmissible because the trial judge, in considering the officer's evidence, erred in failing to consider whether there was an inducement held out to the accused by the officer by way of promise or threat - See paragraphs 24 to 27.

Criminal Law - Topic 5353.1

Evidence and witnesses - Confessions and voluntary statements - Statements to persons not in authority - While an accused was detained pending trial, he talked with another inmate about his case - The inmate informed the police and was wired with a tape recorder - Only the last of three subsequent conversations was successfully recorded, because of technical difficulties - The New Brunswick Court of Appeal held that the inmate's testimony about his conversations with the accused when the recorder was broken was admissible - See paragraph 28.

Cases Noticed:

R. v. Farrant (1983), 46 N.R. 337; 21 Sask.R. 271; 32 C.R.(3d) 289, consd. [para. 9].

R. v. Swietlinski, [1980] 2 S.C.R. 956; 34 N.R. 569; 55 C.C.C.(2d) 481, consd. [para. 10].

R. v. Alward and Mooney, [1978] 1 S.C.R. 559; 16 N.R. 127; 18 N.B.R.(2d) 97; 26 A.P.R. 97, consd. [para. 18].

R. v. Young (1980), 60 C.C.C.(2d) 272 (B.C.S.C.), refd to. [para. 28].

R. v. Banas et al. (1982), 65 C.C.C.(2d) 224 (Ont. C.A.), refd to. [para. 28].

R. v. McDonald and Tondu (1981), 29 A.R. 499; 60 C.C.C.(2d) 336 (Alta. C.A.), refd to. [para. 28].

R. v. Morris (1975), 29 C.C.C.(2d) 540 (S.C.C.), refd to. [para. 33].

R. v. Nantais, [1966] 4 C.C.C. 108; 48 C.R. 186 (Ont. C.A.), refd to. [para. 33, 42].

R. v. Orford (1943), 79 C.C.C. 151 (S.C.C.), refd to. [para. 41].

R. v. McManus (1924), 42 C.C.C. 248 (N.B.C.A.), refd to. [para. 42].

R. v. Logan (1944), 82 C.C.C. 234 (B.C.C.A.), refd to. [para. 42].

R. v. Popoff (1959), 125 C.C.C. 116 (B.C.C.A.), refd to. [para. 42].

R. v. Kowalski (1962), 37 C.R. 248 (Man. C.A.), refd to. [para. 42].

R. v. Kjeldsen (1980), 20 A.R. 267; 53 C.C.C.(2d) 55 (Alta. C.A.), refd to. [para. 42].

R. v. Kjeldsen (1982), 39 N.R. 376; 34 A.R. 576; 64 C.C.C.(2d) 161 (S.C.C.), refd to. [para. 42].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 213(a) [paras. 8, 10, 15, 21 to 22]; sect. 214(5) [para. 8]; sect. 589(2) [para. 41]; sect. 613(3) [para. 40]; sect. 613(b)(i) [paras. 34, 40].

Counsel:

Paul E. Duffie and John Friel, for the appellant;

André Picard and Jocelyne Moreau, for the respondent.

This appeal was heard before Ryan, Stratton and Angers, JJ.A., of the New Brunswick Court of Appeal, on April 7, 1983. The decision of the Court of Appeal was delivered on September 14, 1983, when the following opinions were filed:

Angers, J.A. - see paragraphs 1 to 38;

Stratton, J.A. - see paragraphs 39 to 44.

Ryan, J.A., concurred with Angers, J.A.