R. v. J.T.J., Jr., (1988) 50 Man.R.(2d) 300 (CA)

• Judge: Monnin, C.J.M., O'Sullivan and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 18, 1987
• Jurisdiction: Manitoba
• Citations: (1988), 50 Man.R.(2d) 300 (CA)

R. v. J.T.J. (1988), 50 Man.R.(2d) 300 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. J.T.J., Jr. (appellant)

(Suit No. 221/87)

Indexed As: R. v. J.T.J., Jr.

Manitoba Court of Appeal

Monnin, C.J.M., O'Sullivan and Huband, JJ.A.

January 22, 1988.

Summary:

A young offender was convicted of first degree murder after killing a three year old girl during the course of a sexual assault. He appealed his conviction.

The Manitoba Court of Appeal, Hall, J.A., dissenting in part, allowed the appeal and ordered a new trial (44 Man.R.(2d) 265).

The accused was convicted and appealed again.

The Manitoba Court of Appeal, in the decision reported below, Monnin, C.J.M., dissenting, dismissed the appeal, but substituted a verdict of manslaughter. Monnin, C.J.M., agreed that the appeal should be dismissed, but would have affirmed the conviction for first degree murder.

For cases involving challenges by the youth to the jurisdiction of the adult court, see 42 Man.R.(2d) 270 and 271.

Civil Rights - Topic 4601

Right to counsel - General - In R. v. Greig (1987), 33 C.C.C.(3d) 40, Dupont, J., of the Ontario High Court, held that save in an emergency situation, where an accused has once retained legal counsel, no further interrogation of the accused should take place without reasonable notice to counsel because such further questioning would be contrary to ss. 7 and 10(b) of the Charter - The Manitoba Court of Appeal, O'Sullivan, J.A., dissenting on this point, disagreed with Dupont, J., stating that he went too far - The court opined that R. v. Manninen (76 N.R. 198 (S.C.C.)), was authority for the proposition that police can interrogate an accused after he has exercised his right to counsel, without the lawyer being present and without his consent - See paragraphs 22 to 32, 81 to 96 - O'Sullivan, J.A., opined that the majority misread R. v. Manninen and he agreed with R. v. Greig - See paragraphs 76 to 79.

Civil Rights - Topic 4949

Presumption of innocence - Evidence and proof - Removal of element of intent - At a murder trial the trial judge told the jury that if they were satisfied that death was caused by the accused while committing a sexual assault, then it was not important whether the accused meant to cause death or that he knew death was likely to result from the assault (Criminal Code, s. 213(a)) - The Manitoba Court of Appeal, Monnin, C.J.M., dissenting on this point, opined that since the constitutionality of s. 213(d) was called into question in R. v. Vaillancourt (81 N.R. 115 (S.C.C.)), the same reasoning would apply to s. 213(a) to render it invalid as well - See paragraphs 63 to 71, 80 - Monnin, C.J.M., opined that it was inappropriate for the court to declare s. 213(a) inoperative, when the issue was not raised by counsel and where there was no full hearing on the matter - See paragraphs 107, 108, 111 to 122.

Criminal Law - Topic 1271

Murder - During commission of other offences - [see Civil Rights - Topic 4949 above].

Criminal Law - Topic 5059

Appeals - Indictable offences - Substitution of verdict - Where appeal dismissed under s. 613(3) of Criminal Code - At a murder trial the trial judge told the jury that if they were satisfied that death was caused by the accused while committing a sexual assault then it was not important whether the accused meant to cause death or that he knew death was likely to result from the assault (Criminal Code, s. 213(a)) - The Manitoba Court of Appeal, Monnin, C.J.M., dissenting on this point, opined that since the constitutionality of s. 213(d) was called into question in R. v. Vaillancourt (81 N.R. 115 (S.C.C.)), the same reasoning would apply to s. 213(a) to render it invalid as well - The court noted that if a new trial were ordered the youth would likely be reconvicted of murder under s. 212, but it was possible that he might be convicted of manslaughter - Therefore the court dismissed the appeal but substituted a verdict of manslaughter for murder - See paragraphs 63 to 71, 80, 107, 108, 111 to 122.

Criminal Law - Topic 5347

Evidence - Witnesses - Confessions and voluntary statements - Young offenders - A young offender was arrested on suspicion of murder - The youth was cautioned and spoke with his lawyer, who told him to remain silent - After the lawyer left, police questioned the youth and obtained a statement - Thereafter the youth showed the police the murder scene - The Manitoba Court of Appeal, Monnin, C.J.M., dissenting, held that the statement was inadmissible because of noncompliance with s. 56(2) of the Young Offenders Act - Specifically the youth was not told that any statement should be made in the presence of counsel unless he desired otherwise and he was not given a reasonable opportunity to make the statement in the presence of counsel - See paragraphs 34 to 41, 72 to 80, 104 - The court held further, Huband, J.A., dissenting, that the gestures in pointing out the murder scene were admissible evidence because the requirements of s. 56(2) of the Young Offenders Act applied to oral statements only, not to gestures - See paragraphs 42 to 62, 76, 99 to 110.

Criminal Law - Topic 8714

Young offenders - Right to counsel - [see Criminal Law - Topic 5347 above].

Criminal Law - Topic 8845

Young offenders - Evidence and proof - Admissibility of evidence obtained contrary to Young Offenders Act - [see Criminal Law - Topic 5347 above].

Police - Topic 3124

Powers - Interrogation - Of persons under arrest - Limitations on - Young offenders - [see Criminal Law - Topic 5347 above].

Police - Topic 3124

Powers - Interrogation - Of persons under arrest - Limitations on - Where accused consults counsel - [see Civil Rights - Topic 4601 above].

Cases Noticed:

R. v. Turvey (1971), 2 N.S.R.(2d) 544; 2 C.C.C.(2d) 401, refd to. [para. 22].

R. v. Settee (1974), 29 C.R.N.S. 104, consd. [paras. 23, 89].

R. v. Stefiuk (1981), 11 Man.R.(2d) 411; 23 C.R.(3d) 389, refd to. [para. 24].

R. v. Lessard (1982), 10 C.C.C.(3d) 61, refd to. [para. 25].

R. v. McCorkell (1962), 27 C.R.N.S. 155, refd to. [para. 26].

R. v. James (1978), 7 C.R.(3d) 17, refd to. [para. 26].

R. v. Greig (1987), 56 C.R.(3d) 229; 33 C.C.C.(3d) 40, consd. [paras. 26, 79, 90, 92, 93, 96].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192; 58 C.R.(3d) 97; 34 C.C.C.(3d) 385, consd. [paras. 27-30, 79, 96].

R. v. Wray, [1971] S.C.R. 272, dist. [paras. 43-47].

R. v. Laviolette (1987), 81 N.R. 148 (S.C.C.), consd. [paras. 107, 108, 111 et seq.].

R. v. Vaillancourt (1987), 81 N.R. 115, consd. [paras. 63-69, 80, 107, 111 et seq.].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 7, sect. 10(b) [para. 26 et seq.]; sect. 11(d) [para. 66 et seq.].

Criminal Code, R.S.C. 1970, c. C-34, sect. 212 [para. 67 et seq.]; sect. 213(a) [para. 65 et seq.]; sect. 213(d) [para. 66 et seq.]; sect. 214 [para. 112].

Young Offenders Act, S.C. 1980-81-82-83, c. 110, sect. 56.

Counsel:

B.L. Keyser, for the appellant;

J.D. Montgomery, Q.C., L.H. Kee and K.P. Tacium, for the respondent.

This appeal was heard on December 18, 1987, before Monnin, C.J.M., O'Sullivan, and Huband, JJ.A., of the Manitoba Court of Appeal. The following decision of the Court of Appeal was delivered on January 22, 1988, including the following opinions:

Huband, J.A. - see paragraphs 1 to 71;

O'Sullivan, J.A. - see paragraphs 72 to 80;

Monnin, C.J.M., dissenting - see paragraphs 81 to 122.