R. v. Gillespie, (1988) 85 N.B.R.(2d) 142 (CA)

• Judge: Angers, Hoyt and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: March 12, 1987
• Jurisdiction: New Brunswick
• Citations: (1988), 85 N.B.R.(2d) 142 (CA)

R. v. Gillespie (1988), 85 N.B.R.(2d) 142 (CA);

    85 R.N.-B.(2e) 142; 217 A.P.R. 142

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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Walter Francis Gillespie (appellant) v. Her Majesty the Queen (respondent)

(132/84/CA)

Indexed As: R. v. Gillespie

New Brunswick Court of Appeal

Angers, Hoyt and Ryan, JJ.A.

February 10, 1988.

Summary:

The accused was convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 18 years. He appealed on the grounds that the trial judge erred in not instructing the jury on manslaughter and that the trial judge misdirecting the jury on his alibi defence.

The New Brunswick Court of Appeal dismissed the appeal, holding that the trial judge did not err in his instructions to the jury. Angers, J.A., agreed that the appeal should be dismissed, but on the basis of s. 613(1)(b)(iii) of the Criminal Code. He felt that the trial judge did err in his jury charge, but that the verdict would have been the same even without the errors.

Criminal Law - Topic 1266

Murder - Jury charge - Included or alternative offences - The New Brunswick Court of Appeal stated "absent statutory direction or precedent, if there is no evidence before the court which would suggest manslaughter, it is not incumbent upon the trial judge to raise the issue of manslaughter in his charge to the jury" [respecting a murder] - See paragraph 32.

Criminal Law - Topic 1266

Murder - Jury charge - Included or alternative offences - The accused was present during a murder - Although he did not participate in the actual killing, he provided transportation for others involved and was holding what was believed to be a pail of gasoline or stove oil - The victim's body was found later partially burned - The trial judge did not charge the jury on manslaughter - The accused was convicted of second degree murder - The New Brunswick Court of Appeal held that the trial judge did not err in failing to direct the jury respecting manslaughter - See paragraphs 31 to 33 - Angers, J.A., disagreed with the majority on this point - See paragraphs 1 to 13.

Criminal Law - Topic 1314

Manslaughter - Jury charge - [See first Criminal Law - Topic 1266 above].

Criminal Law - Topic 1314

Manslaughter - Jury charge - [See second Criminal Law - Topic 1266 above].

Criminal Law - Topic 2747

Parties - What constitute - The accused was present when a person was killed - He provided transportation for the persons involved - He stood by while one of the others hit the victim in the head with a gun - He was carrying a pail of what a witness thought was stove oil or gasoline - The victim's body, which was partially burned, was found close to the accused's home - The accused argued that his passive acquiescence at the scene of the crime was not enough to found a criminal conviction - The New Brunswick Court of Appeal stated that the accused's participation was far from passive; he was an active participant - See paragraph 28.

Criminal Law - Topic 2759

Parties - Jury charge - The accused was present during a killing - Although he did not participate in the actual killing, he provided transportation for others involved and was holding what was believed to be a pail of gasoline or stove oil - The victim's body was found later partially burned - The New Brunswick Court of Appeal reviewed the judge's directions to the jury on s. 21(1) of the Criminal Code (the section concerning parties to offence) and held that the jury was properly instructed - See paragraphs 28 to 30 - Angers, J.A., disagreed with the majority on this point - See paragraphs 1 to 13.

Criminal Law - Topic 4372

Procedure - Jury charge - Directions respecting alibi evidence - The New Brunswick Court of Appeal reviewed a trial judge's jury charge at a murder trial respecting the defence of alibi and held that the jury was properly instructed - See paragraphs 2, 25 to 27.

Cases Noticed:

R. v. Pelletier (1986), 68 N.B.R.(2d) 372; 175 A.P.R. 372, consd. [paras. 3, 31].

R. v. Hebert (1986), 68 N.B.R.(2d) 379; 175 A.P.R. 379, refd to. [para. 4].

Lizotte v. The King (1950), 99 C.C.C. 113, refd to. [para. 26].

R. v. Clarke (1979), 33 N.S.R.(2d) 636; 57 A.P.R. 636; 48 C.C.C.(2d) 440, refd to. [para. 26].

R. v. O'Leary (1983), 43 N.B.R.(2d) 50; 113 A.P.R. 50, refd to. [para. 26].

R. v. Dunlop and Sylvester (1979), 27 N.R. 153; 47 C.C.C.(2d) 93 (S.C.C.), refd to. [para. 28].

Azoulay v. R. (1952), 15 C.R. 181, refd to. [para. 32].

Wu v. R., [1934] S.C.R. 609, refd to. [para. 32].

R. v. Mensah (1946), 2 C.R. 113 (P.C.), refd to. [para. 32].

R. v. Charbonneau, [1977] 2 S.C.R. 805; 14 N.R. 351; 33 C.C.C.(2d) 469, refd to. [para. 32].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 21(1) [paras. 5, 8, 29, 30]; sect. 205(5) [para. 6]; sect. 212 [paras. 6, 31]; sect. 213, sect. 216, sect. 217 [para. 31]; sect. 613(1)(b)(iii) [para. 12].

Authors and Works Noticed:

Crankshaw's Criminal Code of Canada (8th Ed.), vol. 2, p. 6-72 [para. 32].

Counsel:

Henrik G. Tonning, for Gillespie;

Stephen W. Wood, for the Crown.

This appeal was heard on March 12, 1987, before Angers, Hoyt and Ryan, JJ.A., of the New Brunswick Court of Appeal. The decision of the Court of Appeal was delivered on February 10, 1988, including the following opinions:

Angers, J.A. - see paragraphs 1 to 13;

Ryan, J.A. (Hoyt, J.A., concurring) - see paragraphs 14 to 33.