R. v. J.J.B., (2016) 323 Man.R.(2d) 257 (CA)

• Judge: Hamilton, J.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 04, 2015
• Jurisdiction: Manitoba
• Citations: (2016), 323 Man.R.(2d) 257 (CA);2016 MBCA 4

R. v. J.J.B. (2016), 323 Man.R.(2d) 257 (CA);

      657 W.A.C. 257

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. JA.017

Her Majesty The Queen (respondent) v. J.J.B. (young person/appellant)

(AY 12-30-07830; 2016 MBCA 4)

Indexed As: R. v. J.J.B.

Manitoba Court of Appeal

Hamilton, J.A.

January 12, 2016.

Summary:

The accused was convicted of first degree murder. The trial judge ordered that the accused, who was 16 years old at the time of the offence, be sentenced as an adult. As a result, he received a life sentence with no eligibility for parole for 10 years. Legal Aid Manitoba denied the accused's application to appoint counsel respecting both his conviction and sentence appeal. The accused sought an order under s. 684 of the Criminal Code appointing counsel to act on his behalf. The sole issue was whether his asserted grounds of appeal were arguable.

The Manitoba Court of Appeal, per Hamilton, J.A., allowed the application, finding that three of the accused's four grounds of appeal met the threshold of being arguable.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - The accused sought an order under s. 684 of the Criminal Code appointing counsel to act on his behalf on appeal - The sole issue was whether his asserted grounds of appeal were arguable - The Manitoba Court of Appeal, per Hamilton, J.A., held that the accused's ground regarding late disclosure was not arguable - Because of her concern regarding the issue, the trial judge took steps during the trial to remedy the effects of this late disclosure - The accused did not make a motion for a mistrial - See paragraphs 31 to 33.

Criminal Law - Topic 4354

Procedure - Jury charge - Directions regarding pleas or evidence of witnesses, co-accused or accomplices - [See first Criminal Law - Topic 4974 ].

Criminal Law - Topic 4377

Procedure - Jury charge - Directions regarding credibility of witnesses - [See first Criminal Law - Topic 4974 ].

Criminal Law - Topic 4974

Appeals - Indictable offences - Powers of Court of Appeal - Power to appoint counsel for accused - The accused was convicted of first degree murder - The trial judge ordered that the accused, who was 16 years old at the time of the offence, be sentenced as an adult - As a result, he received a life sentence with no eligibility for parole for 10 years - Legal Aid Manitoba denied the accused's application to appoint counsel respecting both his conviction and sentence appeal - The accused sought an order under s. 684 of the Criminal Code appointing counsel - The sole issue was whether his asserted grounds of appeal were arguable - The Manitoba Court of Appeal, per Hamilton, J.A., held that there was an arguable ground of appeal regarding, inter alia, whether the trial judge erred when she did not provide a Vetrovec instruction respecting the witness Ducharme - "While Ducharme was not subject to an immunity agreement like [the witness] Flett, he was a crucial eyewitness with a criminal record, pending charges and previous gang involvement. He sought, but was denied, an immunity agreement. Furthermore, ... the [accused] raises a potentially interesting question as to the possible impact on the jury's approach to assessing Ducharme's evidence in light of the absence of a caution for him and the detailed caution for Flett." - See paragraphs 34 to 37.

Criminal Law - Topic 4974

Appeals - Indictable offences - Powers of Court of Appeal - Power to appoint counsel for accused - The accused was convicted of first degree murder - The trial judge ordered that the accused, who was 16 years old at the time of the offence, be sentenced as an adult - As a result, he received a life sentence with no eligibility for parole for 10 years - Legal Aid Manitoba denied the accused's application to appoint counsel respecting both his conviction and sentence appeal - The accused sought an order under s. 684 of the Criminal Code appointing counsel to act on his behalf - The sole issue was whether his asserted grounds of appeal were arguable - He argued, inter alia, that the trial judge: 1. placed too much weight on speculative evidence in a forensic assessment report about the accused's current and future gang status and its respective effect on his potential for rehabilitation; and 2. erred in law and principle by placing insufficient weight on Gladue factors - The Manitoba Court of Appeal, per Hamilton, J.A., allowed the application - The two grounds of appeal were interrelated to some extent - Given the importance and complexities of Gladue considerations, and the seriousness of the penalty imposed, the accused had met the modest threshold that these grounds of appeal were arguable - See paragraphs 38 to 40.

Cases Noticed:

R. v. J.N. (2013), 305 O.A.C. 175; 2013 ONCA 251, refd to. [para. 11].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 20].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 24].

R. v. Bernardo (P.K.) (1997), 105 O.A.C. 244; 121 C.C.C.(3d) 123 (C.A.), refd to. [para. 27].

R. v. B.L.B. (2004), 190 Man.R.(2d) 6; 335 W.A.C. 6; 2004 MBCA 100, refd to. [para. 27].

R. v. Bicknell (J.A.), [2009] Man.R.(2d) Uned. 33; 2009 MBCA 34 (C.A.), refd to. [para. 27].

R. v. Abbey (W.) (2013), 303 O.A.C. 335; 2013 ONCA 206, refd to. [para. 28].

R. v. Yukon (F.) (2011), 375 Sask.R. 85; 525 W.A.C. 85; 2011 SKCA 77, refd to. [para. 28].

R. v. Fatunmbi (O.O.) (2014), 306 Man.R.(2d) 158; 604 W.A.C. 158; 2014 MBCA 53, refd to. [para. 35].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 141 C.C.C.(3d) 321; 2000 SCC 11, refd to. [para. 35].

Counsel:

T.L. Mariash, for the appellant;

R.D. Lagimodière, for the respondent.

This motion was heard on November 26 and December 4, 2015, by Hamilton, J.A., of the Manitoba Court of Appeal. Hamilton, J.A., delivered the following decision for the court on January 12, 2016.