R. v. Gormley (G.J.), (1999) 180 Nfld. & P.E.I.R. 181 (PEICA)

• Judge: Carruthers, C.J.P.E.I., Mitchell and McQuaid, JJ.A.
• Case Date: October 08, 1999
• Jurisdiction: Prince Edward Island
• Citations: (1999), 180 Nfld. & P.E.I.R. 181 (PEICA);1999 CanLII 4160 (PE SCAD);180 Nfld & PEIR 181;140 CCC (3d) 110;[1999] CarswellPEI 83;[1999] QJ No 80 (QL);548 APR 181;71 CRR (2d) 75

R. v. Gormley (G.J.) (1999), 180 Nfld. & P.E.I.R. 181 (PEICA);

    548 A.P.R. 181

MLB headnote and full text

Temp. Cite: [1999] Nfld. & P.E.I.R. TBEd. OC.013

Gary James Gormley (appellant) v. Her Majesty the Queen (respondent)

(AD-0680)

Indexed As: R. v. Gormley (G.J.)

Prince Edward Island Supreme Court

Appeal Division

Carruthers, C.J.P.E.I., Mitchell and McQuaid, JJ.A.

October 8, 1999.

Summary:

An accused appealed his second degree murder conviction.

The Prince Edward Island Court of Appeal dismissed the appeal.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent (Charter, s. 7) - An accused waived his right to remain silent - At 7:00 a.m., the police began questioning him - At 7:50 a.m., the accused telephoned a lawyer - The accused advised the police that the lawyer would be coming at 9:30 or 10:00 a.m. - Questioning resumed - The accused indicated several times that the lawyer had told him to say nothing and he wanted to wait and talk to the lawyer - At 10:48 a.m., the accused again telephoned the lawyer - The interrogation resumed - The lawyer arrived and advised the accused to remain silent - Thereafter, the accused waived his right to counsel and accom­panied the police to the murder scene - The accused asserted that the police contra­vened his s. 7 Charter right to remain silent - The Prince Edward Island Court of Appeal rejected the assertion, holding that the accused had waived his right to remain silent - See paragraphs 53 to 62.

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - An accused waived his right to counsel - At 7:00 a.m., the police began questioning him - At 7:50 a.m., the accused telephoned a lawyer - After a three minute conversa­tion, the accused advised the police that the lawyer would be coming at 9:30 or 10:00 a.m. - Questioning resumed - The accused indicated several times that the lawyer had told him to say nothing and he wanted to wait and talk to the lawyer - At 10:48 a.m., the accused again telephoned the lawyer - The interrogation resumed - The lawyer arrived and advised the accused to remain silent - Thereafter, the accused was again cautioned and, after waving his right to counsel, accompanied the police to the murder scene - The accused claimed a s. 10(b) Charter breach, asserting that the 7:50 a.m. call was merely to arrange for the lawyer's attendance and the police should have refrained from eliciting evidence until he had a reasonable opportunity to consult with the lawyer - The Prince Edward Island Court of Appeal held that s. 10(b) was not breached - See paragraphs 29 to 52.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See Civil Rights - Topic 4605 ].

Criminal Law - Topic 131

General principles - Rights of accused - Right to just conduct of trial - An accused and a co-accused were charged with sec­ond degree murder - Crown counsel told the jury in his opening address that the two accused had caused the victim's death - In his closing address, the Crown repeated the comment and stated that the Crown theory was now more clearly defined as a result of the trial and the evidence had estab­lished that accused alone had murdered the victim - The accused appealed his subse­quent conviction, asserting that he was deprived of his right to a fair trial because the Crown changed its theory after he had closed his case - The Prince Edward Island Court of Appeal rejected the assertion - The Crown was entitled to revise its theory to accord with the evidence adduced at trial - See paragraphs 63 to 76.

Criminal Law - Topic 131

General principles - Rights of accused - Right to just conduct of trial - An accused was charged with murder - At trial, police officers testified that the accused had made certain statements - On direct examination, the accused denied making the statements -The accused appealed his subsequent con­viction, asserting that he was deprived of his right to a fair trial by Crown coun­sel's highly prejudicial and unfair cross-examin­ation of him - The accused asserted that the Crown conducted the cross-exam­ination in an arrogant, defiant, argumenta­tive and hostile manner - The Prince Edward Island Court of Appeal held that the cross-exam­ination was inappropriate, but did not deprive the accused of a fair trial or bring the administration of justice into disrepute so as to require a new trial - The accused put credibility into issue during his direct examination - The cross-examination con­firmed that position - Additionally, the case was not decided solely on credibility -See paragraphs 77 to 105.

Criminal Law - Topic 4961

Appeals - Indictable offences - New trials -Grounds - Abusive or improper cross-examination by Crown - [See second Cri­minal Law - Topic 131 ].

Cases Noticed:

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; [1990] 5 W.W.R. 1; 57 C.C.C.(3d) 1; 77 C.R.(3d) 145; 49 C.R.R. 114; 47 B.C.L.R.(2d) 1, refd to. [para. 26].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192; 34 C.C.C.(3d) 385; 41 D.L.R.(4th) 301; 58 C.R.(3d) 97, refd to. [para. 30].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124; 53 C.C.C.(3d) 330; 74 C.R.(3d) 129; [1990] 2 W.W.R. 220; 71 Alta. L.R.(2d) 145, refd to. [para. 33].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 33].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 33].

R. v. Pozniak (W.), [1994] 3 S.C.R. 310; 172 N.R. 72; 74 O.A.C. 232, refd to. [para. 33].

R. v. Matheson (R.N.), [1994] 3 S.C.R. 328; 172 N.R. 108; 123 Nfld. & P.E.I.R. 271; 382 A.P.R. 271, refd to. [para. 33].

R. v. Harper, [1994] 3 S.C.R. 343; 172 N.R. 91; 97 Man.R.(2d) 1; 79 W.A.C. 1, refd to. [para. 33].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [para. 39].

R. v. Wood (D.A.) (1994), 135 N.S.R.(2d) 334; 386 A.P.R. 334; 94 C.C.C.(3d) 193 (C.A.), refd to. [para. 42].

R. v. Friesen (C.S.) (1995), 174 A.R. 13; 102 W.A.C. 13; 101 C.C.C.(3d) 167 (C.A.), refd to. [para. 42].

R. v. Roper (W.R.) (1997), 98 O.A.C. 225; 32 O.R.(3d) 204 (C.A.), refd to. [para. 42].

R. v. Robinson (C.L.), [1997] B.C.T.C. Uned. C01 (S.C.), refd to. [para. 42].

R. v. Russell (M.E.) (1998), 219 A.R. 19; 179 W.A.C. 19 (C.A.), refd to. [para. 42].

R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C. 97, refd to. [para. 42].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81, dist. [para. 66].

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161, dist. [para. 70].

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113; [1987] 4 W.W.R. 193; 57 C.R.(3d) 97; 32 C.C.C.(3d) 481, refd to. [para. 73].

R. v. Chamandy (1934), 61 C.C.C. 224 (Ont. C.A.), refd to. [para. 81].

R. v. Boucher, [1955] S.C.R. 16, refd to. [para. 82].

R. v. Swietlinski - see Swietlinski v. Ontario (Attorney General).

Swietlinski v. Ontario (Attorney General), [1994] 3 S.C.R. 481; 172 N.R. 321; 75 O.A.C. 161, refd to. [para. 82].

R. v. Henderson (R.R.) (1999), 120 O.A.C. 99 (C.A.), refd to. [paras. 83, 111].

R. v. Logiacco (1984), 2 O.A.C. 177; 11 C.C.C.(3d) 374 (C.A.), refd to. [para. 84].

R. v. Daly (1992), 57 O.A.C. 70 (C.A.), refd to. [para. 88].

R. v. Fanjoy, [1985] 2 S.C.R. 233; 62 N.R. 253; 11 O.A.C. 381; 21 C.C.C.(3d) 312, refd to. [para. 90].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [paras. 91, 108].

R. v. A.J.R. - see R. v. R.

R. v. R. (1994), 74 O.A.C. 363; 94 C.C.C.(3d) 168 (C.A.), refd to. [paras. 93, 111].

R. v. Yakeleya (1985), 9 O.A.C. 284; 20 C.C.C.(3d) 193 (C.A.), refd to. [para. 94].

R. v. Defrancesca (J.) et al. (1995), 82 O.A.C. 35; 104 C.C.C.(3d) 189 (C.A.), refd to. [para. 95].

R. v. Brown and Murphy (1982), 41 A.R. 69; 1 C.C.C.(3d) 107 (C.A.), affd. [1985] 2 S.C.R. 273; 62 N.R. 241; 65 A.R. 158, refd to. [paras. 96, 98].

R. v. Markadonis, [1935] S.C.R. 657, refd to. [para. 96].

Counsel:

James J. Hornby, for the accused;

Darrell E. Coombs and Gerald K. Quinn, for the Crown.

This appeal was heard on May 10 to 12, 1999, at Charlottetown, P.E.I., by Carruthers, C.J.P.E.I., Mitchell and McQuaid, JJ.A., of the Prince Edward Island Court of Appeal.

On October 8, 1999, the decision of the Court of Appeal was delivered and the following opinions were filed:

Carruthers, C.J.P.E.I. (Mitchell, J.A., concurring) - see paragraphs 1 to 105;

McQuaid, J.A. - see paragraphs 106 to 118.