R. v. Gallant (H.J.) and Gallant (E.J.), (1987) 83 N.B.R.(2d) 59 (CA)

• Judge: Angers, Hoyt and Ayles, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 20, 1987
• Jurisdiction: New Brunswick
• Citations: (1987), 83 N.B.R.(2d) 59 (CA)

R. v. Gallant (H.J.) (1987), 83 N.B.R.(2d) 59 (CA);

    83 R.N.-B.(2e) 59; 212 A.P.R. 59

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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Harvey Joseph Gallant and Eric Joseph Gallant (appellants) v. Her Majesty the Queen (respondent)

(12/86/CA)

Indexed As: R. v. Gallant (H.J.) and Gallant (E.J.)

New Brunswick Court of Appeal

Angers, Hoyt and Ayles, JJ.A.

October 20, 1987.

Summary:

The two accused were convicted of robbery of a taxi driver by a judge and jury. They appealed on the grounds that the trial judge erred in mentioning to the jury the accused's pretrial jail time and their failure to call witnesses.

The New Brunswick Court of Appeal, Hoyt, J.A., dissenting, allowed the appeal on different grounds and ordered a new trial. The court held in particular that the trial judge's instruction on identification evidence was inadequate.

Hoyt, J.A., was of the opinion that given that the case was straightforward, the trial judge's instructions were adequate and should be interfered with on grounds not raised by the accused only in exceptional circumstances, such as a miscarriage of justice, which did not occur here.

Criminal Law - Topic 4361

Procedure - Jury charge - Identification - The New Brunswick Court of Appeal quashed the conviction of the accused and ordered a new trial, where the trial judge failed to explain to the jury the nature, qualities and frailties of identification evidence - See paragraphs 12 to 15.

Criminal Law - Topic 4985

Appeals - Indictable offences - Powers of court of appeal - Respecting grounds not raised on appeal - The New Brunswick Court of Appeal quashed the conviction of the accused and ordered a new trial on grounds not raised by the accused on appeal - A dissenting judge of the Court of Appeal discussed the power of the Court of Appeal to consider issues which are not raised by the accused in his notice of appeal and stated that the Court of Appeal should do so only in exceptional circumstances, which could include situations where error or errors constitute a miscarriage of justice.

Cases Noticed:

R. v. Lanigan (1984), 53 N.B.R.(2d) 388; 138 A.P.R. 388, appld. [para. 12].

R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1; 27 C.C.C.(3d) 97 (S.C.C.), appld. [para. 12].

R. v. Canning, [1986] 1 S.C.R. 991; 68 N.R. 80; 27 C.C.C.(3d) 479 (S.C.C.), appld. [para. 13].

R. v. Holden (1929), 48 Que. K.B. 109, consd. [para. 28].

R. v. Simms (1924), 43 C.C.C. 28, consd. [para. 29].

R. v. Lawrence (1981), 73 Cr. App. R. 1, consd. [para. 36].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 302(a), sect. 302(b) [para. 5]; sect. 607(1) [para. 27]; sect. 613(1)(a)(iii) [paras. 3, 30].

Rules of Court (N.B.), rule 63.04(3) [para. 27].

Counsel:

Terrence E. LeBlanc, for the appellant accused;

Ronald LeBlanc, for the respondent Crown.

This case was heard on May 14, 1987, at Fredericton, N.B., before Angers, Hoyt and Ayles, JJ.A., of the New Brunswick Court of Appeal.

On October 20, 1987, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Angers, J.A. (Ayles, J.A., concurring) - see paragraphs 1 to 17

Hoyt, J.A., dissenting - see paragraphs 18 to 38