R. v. Jack (B.G.), (1992) 76 Man.R.(2d) 168 (CA)

• Judge: Scott, C.J.M., O'Sullivan and Philp, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: November 01, 1991
• Jurisdiction: Manitoba
• Citations: (1992), 76 Man.R.(2d) 168 (CA);1992 CanLII 2764 (MB CA);70 CCC (3d) 67;10 WAC 168;15 WCB (2d) 92;76 Man R (2d) 168

R. v. Jack (B.G.) (1992), 76 Man.R.(2d) 168 (CA);

    10 W.A.C. 168

MLB headnote and full text

Her Majesty The Queen (respondent) v. Brian Gordon Jack (appellant)

(Suit No. 403/90)

Indexed As: R. v. Jack (B.G.)

Manitoba Court of Appeal

Scott, C.J.M., O'Sullivan and Philp, JJ.A.

January 3, 1992.

Summary:

Following a lengthy jury trial, the accused was convicted of the second degree murder of his wife, whose body was never found. The accused appealed his conviction.

The Manitoba Court of Appeal allowed the appeal and ordered a new trial on the second degree murder charge.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trials - Ac­cused's right to - Within a reasonable time - What constitutes - The accused was charged with a murder allegedly com­mitted in December 1988 - The prelimi­nary hearing was from May until Septem­ber 1989 - The trial was originally set for May 7, 1990, but was adjourned at the request of the Crown to allow it to obtain DNA blood-typing evidence, until Sep­tember 1990 - The DNA testing was not completed in time and the trial proceeded without it - The Manitoba Court of Appeal affirmed that the adjournment was reason­able and appropriately granted - Further, there was neither unreasonable delay nor prejudice to the accused - See paragraphs 82 to 89, 176.

Civil Rights - Topic 3268

Trials - Due process, fundamental justice and fair hearings - Speedy trials - Ac­cused's right to - Time to allege denial - The Manitoba Court of Appeal held that it was inappropriate to raise an Askov motion for the first time at the appellate level - Furthermore, it is inappropriate to ask an appellate court to deal with an Askov motion de novo in the absence of an evidentiary foundation - An application for a stay of proceedings for an infringe­ment of the right to be tried within a rea­sonable time is an issue that goes to the heart of the court process and should, except in unusual circumstances, be dealt with initially at the trial level - See para­graphs 87, 90, 92 to 93, 176.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The Manitoba Court of Appeal held that to stay a charge as an abuse of process, or pursuant to the Char­ter, requires more than simply evidence of police misconduct and no more - The Charter is not the remedy for police abuse when, despite it, there is ultimately no persuasive evidence of prejudice to the accused - See paragraph 110.

Criminal Law - Topic 207

Common law defences - Alibi - The Manitoba Court of Appeal stated that an alibi need not be proved; it need only raise a reasonable doubt - See paragraph 152.

Criminal Law - Topic 255

Abuse of process - Power of court to prevent an abuse of process and to grant an accused a stay of proceedings - [See Civil Rights - Topic 8374 ].

Criminal Law - Topic 1263

Murder - Intention - The body of an alleged murder victim was never found; her husband was charged - In the absence of a body, the nature of the unlawful act could not be proven, and hence no testi­mony on the cause of death - There was, however, other evidence (lies and fabrica­tion) from which a jury could "use their common sense" and infer a consciousness of guilt by the husband - The Manitoba Court of Appeal held that the jury was entitled to infer not only that a culpable homicide occurred, but the specific intent necessary to commit murder - The court held that the trial judge was correct in leaving it to the jury to determine whether the Crown had proven the requisite intent beyond a reasonable doubt - The court further approved of the jury charge re­specting murder - See paragraphs 115 to 128, 178.

Criminal Law - Topic 1265

Murder - Jury charge - General - [See Criminal Law - Topic 1263 ].

Criminal Law - Topic 4351

Procedure - Jury charge - Direction re­garding burden of proof and reasonable doubt - The body of an alleged murder victim was never found - Police delayed in disclosing to the defence the fact of "other sightings" of the victim by witnesses after her alleged disappearance - The court called these persons to testify and be cross-examined - The Manitoba Court of Appeal held that despite an adequate charge on the whole, the trial judge made a serious and prejudicial error in his jury charge by inferring that there was a burden of proof on the accused respecting the jury's "acceptance" of the evidence - The court equated these identi­fication witnesses to alibi evidence, since if it caused the jury to have a reasonable doubt of the victim's death, the accused was entitled to an acquittal - The court referred to the elements of a proper charge - See paragraphs 146 to 159, 181.

Criminal Law - Topic 4354

Procedure - Jury charge - Directions regarding evidence of witnesses, co-accused and accomplices - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Manitoba Court of Appeal held that a duty exists on the part of the Crown in a criminal case involving an indictable offence to make full, fair and timely disclosure of all relevant facts - For these purposes, the Crown includes the police - The court further discussed the scope of the duty to disclose - See para­graphs 94 to 98.

Criminal Law - Topic 4506

Procedure - Trial - Special duties of Crown - Duty to produce statements of witnesses and memoranda prepared by or given to investigating police officers - An alleged murder victim's body was never found - There was a lack of timely dis­closure by police to the defence of "other sightings" of the alleged victim after her disappearance - The defence became aware of the existence of one witness only during cross-examination of a police officer at the preliminary inquiry - How­ever, the Crown made every effort to provide full and timely disclosure once they became aware of new facts - The Manitoba Court of Appeal held that there was no resulting prejudice or unfairness to the accused because the relevant witnesses were called by the court itself, thus pre­serving the defence's right to cross-exa­mine and to argue its case last - The court held that, given this and an adequate jury charge, the accused was not prejudiced - See paragraphs 99 to 114, 177.

Criminal Law - Topic 5035

Appeals - Indictable offences - Dismissal of appeal if error results in no substantial wrong or miscarriage of justice - General - The proviso in s. 686(1)(b)(iii) of the Criminal Code provided for the dismissal of an appeal if the error of law resulted in no substantial wrong or miscarriage of justice - The Manitoba Court of Appeal discussed the use of the proviso, including the limitations on its operation and the proper tests to be used to determine if it applied - See paragraphs 160 to 165.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if error results in no substantial wrong or miscarriage of justice - The body of an alleged murder victim was never found; her husband was charged - The trial judge misdirected the jury re­specting evidence from persons who al­legedly sighted the victim after her disap­pearance - The error was serious and prejudicial to the accused, since it dealt with evidence critical to the theory of the defence - The error denigrated the only evidence capable of raising a doubt that the victim was dead - The Manitoba Court of Appeal refused to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code and dismiss the appeal despite the error - The court sent the case back for a new trial - See paragraphs 166 to 170, 182.

Criminal Law - Topic 5313

Evidence - Witnesses - Inferences - Of consciousness of guilt - From falsehoods - The Manitoba Court of Appeal held that in a murder trial, lies, concealment and/or fabrication are capable of evidencing con­sciousness of guilt - Depending on the facts, such evidence can also be used for certain limited specific purposes, such as credibility - See paragraph 121.

Criminal Law - Topic 5313

Evidence - Witnesses - Inferences - Of consciousness of guilt - From falsehoods - [See Criminal Law - Topic 1263 ].

Criminal Law - Topic 5496

Evidence - Witnesses - Motive or design - Relevance - [See second Evidence - Topic 1229 ].

Criminal Law - Topic 5528

Evidence - Witnesses - Testimony re­specting the victim - Character of victim - The Manitoba Court of Appeal stated that generally the character of the victim of a crime is irrelevant - However, such evi­dence can be relevant where self-defence is raised by an accused and it is suggested that the deceased had a violent propensity - See paragraph 60.

Criminal Law - Topic 5528

Evidence - Witnesses - Testimony re­specting the victim - Character of victim - The body of the alleged murder victim was never found, making her death a material fact for the jury - The Crown introduced out-of-court statements by the alleged victim to witnesses, not to prove the truth of their contents, but as original evidence of the victim's state of mind and future intentions shortly before her disappearance - The witnesses ended up testifying about the victim's good character - The Mani­toba Court of Appeal held that the evi­dence was not inadmissible, because it was not called to establish the good character of the victim, but as necessary and relevant to prove the fact of death itself - See paragraphs 59 to 63, 174 to 175.

Evidence - Topic 1229

Relevant facts - Relevance and materiality - State of mind - Intent - The body of the alleged murder victim was never found, making her death a material fact for the jury - The Crown introduced out-of-court statements by the alleged victim through witnesses - The Crown also introduced a card and letter written by the victim to her parents shortly before her disappearance - The trial judge adopted a test of circum­stantial trustworthiness, admitting state­ments to those with whom the victim had a close and longstanding relationship, excluding those to casual acquaintances - The Manitoba Court of Appeal affirmed the evidence was admissible, not to prove the truth of their contents, but as original evidence of the victim's state of mind and future intentions shortly before her disap­pearance - The court held that the letter was also admissible as an exception to the hearsay rule - See paragraphs 35 to 47, 174 to 175.

Evidence - Topic 1229

Relevant facts - Relevance and materiality - State of mind - Intent - The body of the alleged murder victim was never found, making her death a material fact for the jury - The Crown introduced out-of-court statements by the alleged victim through witnesses, not to prove the truth of their contents, but as original evidence of the victim's state of mind and future intentions shortly before her disappearance - Some statements concerned rough treatment by the victim's husband (the accused) toward her, treatment admitted by the husband - The Manitoba Court of Appeal held that the trial judge, in charging the jury, mis­used the state of mind evidence - The court held that the evidence was relevant and admissible as evidence of motive and to provide background to the jury respect­ing the real issues before it (i.e., whether the victim was indeed dead and whether the accused murdered her) - See para­graphs 48 to 58, 174 to 176.

Evidence - Topic 1631

Hearsay rule - Exceptions and exclusions - Statements of deceased persons - State­ments of present intention - [See first Evidence - Topic 1229 ].

Evidence - Topic 4161

Witnesses - Privilege - Communications - General - The Manitoba Court of Appeal stated that the claim to privilege can only be made by the person whose privilege it is - See paragraphs 77, 176.

Evidence - Topic 4241

Witnesses - Privilege - Lawyer-client communications - Extent of privilege - The body of an alleged murder victim was never found - Three days before her dis­appearance the victim consulted a family lawyer, who testified at the murder trial of the victim's husband respecting the general nature of their meeting, but not to specific dialogue - The Manitoba Court of Appeal affirmed that the testimony was admissi­ble; that in the unique circumstances the evidence did not constitute a communica­tion of confidential information by the lawyer; that solicitor-client privilege did not attach, and that even if confidential communications were betrayed, it was in the interests of the alleged victim and the administration of justice that any privilege be waived and the communications be admitted - See paragraphs 70 to 81, 176.

Evidence - Topic 4254

Witnesses - Privilege - Lawyer-client communications - Waiver - General - [See Evidence - Topic 4241 ].

Cases Noticed:

State v. Baldwin (1966), 221 A. 2d 199, refd to. [para. 36].

Commonwealth v. Trefethen (1892), 31 N.E.R. 921 (Mass. Sup. Jud. Ct.), refd to. [para. 41].

Mutual Life Insurance Company v. Hill­mon (1892), 145 U.S. 285, refd to. [para. 41].

R. v. P.(R.) (1990), 58 C.C.C.(3d) 334 (Ont. H.C.J.), consd. [para. 42].

R. v. Smith (A.L.) (1990), 42 O.A.C. 395; 61 C.C.C.(3d) 232 (C.A.), refd to. [para. 42].

R. v. Baron Von Lindberg (1977), 66 B.C.L.R. 277 (S.C.), refd to. [para. 44].

Shepard v. United States (1933), 290 U.S. 96, refd to. [para. 45].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 47].

R. v. Barbour, [1938] S.C.R. 465, refd to. [para. 56].

R. v. Barsalou (No. 2) (1901), 4 C.C.C. 347 (Que. K.B.), refd to. [para. 56].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 57].

R. v. Soares (1987), 19 O.A.C. 97; 34 C.C.C.(3d) 403 (C.A.), refd to. [para. 60].

R. v. Scopelliti (1981), 63 C.C.C.(2d) 481 (Ont. C.A.), refd to. [para. 60].

R. v. Onufrejczyk, [1955] 1 All E.R. 247 (C.C.A.), refd to. [para. 61].

R. v. Horry, [1952] N.Z.L.R. 111, refd to. [para. 61].

R. v. Fitton, [1956] S.C.R. 958, refd to. [para. 64].

R. v. Dunbar and Logan (1982), 68 C.C.C.(2d) 13 (Ont. C.A.), refd to. [para. 71].

Ott v. Fleishman, [1983] 5 W.W.R. 721 (B.C.S.C.), refd to. [para. 73].

Bell et al. v. Smith et al., [1968] S.C.R. 664, refd to. [para. 75].

Solosky v. Government of Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 75].

Goodman Estate v. Geffen, [1991] 5 W.W.R. 389; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81 (S.C.C.), refd to. [para. 79].

Bergwitz v. Fast (1980), 108 D.L.R.(3d) 732 (B.C.C.A.), refd to. [para. 80].

Hamulka v. Golfman, [1985] 5 W.W.R. 597; 35 Man.R.(2d) 189 (C.A.), refd to. [para. 80].

Merrill Lynch et al. v. Granove, [1985] 5 W.W.R. 589; 35 Man.R.(2d) 194 (C.A.), refd to. [para. 80].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81; 59 C.C.C.(3d) 449; 79 C.R.(3d) 273, refd to. [para. 86].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183; 33 C.C.C.(3d) 289; 57 C.R.(3d) 289; 39 D.L.R.(4th) 481, refd to. [para. 89].

R. v. Rabba (1991), 46 O.A.C. 120; 3 O.R.(3d) 238 (C.A.), refd to. [para. 90].

R. v. Bennett (1991), 46 O.A.C. 99; 3 O.R.(3d) 193 (C.A.), refd to. [para. 90].

R. v. McNeil (1991), 50 O.A.C. 389 (C.A.), refd to. [para. 91].

R. v. T.R.J. (1991), 50 O.A.C. 75 (C.A.), refd to. [para. 91].

R. v. B.C. (1991), 93 Nfld. & P.E.I.R. 324; 292 A.P.R. 324 (Nfld. C.A.), refd to. [para. 91].

Vickery v. Prothonotary, Supreme Court (N.S.), [1991] 1 S.C.R. 671; 124 N.R. 95; 104 N.S.R.(2d) 181; 283 A.P.R. 181, refd to. [para. 92].

R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63, refd to. [para. 94].

R. v. Caccamo, [1976] 1 S.C.R. 786; 4 N.R. 133, refd to. [para. 94].

Lemay v. The King, [1952] 1 S.C.R. 232, refd to. [para. 94].

R. v. Stinchcombe (1991), 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161 (S.C.C.), refd to. [para. 95].

R. v. Denbigh, 10 W.C.B.(2d) 333 (B.C.S.C.), refd to. [para. 107].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 116].

R. v. Mezzo, [1986] 1 S.C.R. 802; 68 N.R. 1; 43 Man.R.(2d) 161, refd to. [para. 116].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281; 60 C.R.(3d) 289; 39 C.C.C.(3d) 118, refd to. [para. 118].

R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321; 58 C.C.C.(3d) 353, refd to. [para. 118].

R. v. Logan, Logan and Johnson, [1990] 2 S.C.R. 731; 112 N.R. 144; 41 O.A.C. 330; 58 C.C.C.(3d) 391, refd to. [para. 118].

R. v. Cole (1980), 53 C.C.C.(2d) 269 (Ont. C.A.), refd to. [para. 121].

R. v. Minhas (1986), 16 O.A.C. 42; 29 C.C.C.(3d) 193 (C.A.), refd to. [para. 121].

R. v. Bob (1990), 40 O.A.C. 184; 78 C.R.(3d) 102 (C.A.), refd to. [para. 122].

Lizotte v. The King, [1951] S.C.R. 115, refd to. [para. 152].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 155].

R. v. Leaney and Rawlinson, [1989] 2 S.C.R. 393; 99 N.R. 345; 99 A.R. 291; 50 C.C.C.(3d) 289, refd to. [para. 160].

R. v. Broyles, [1991] S.C.J. No. 95; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189 (S.C.C.), refd to. [para. 161].

R. v. Fanjoy, [1985] 2 S.C.R. 233; 62 N.R. 253; 11 O.A.C. 381, refd to. [para. 161].

Colpitts v. R., [1965] S.C.R. 739, refd to. [para. 161].

R. v. Duke (1985), 62 A.R. 204; 22 C.C.C.(2d) 217 (C.A.), refd to. [para. 161].

R. v. Wilson (1981), 12 Man.R.(2d) 195; 61 C.C.C.(2d) 168 (C.A.), refd to. [para. 162].

R. v. Clarke (1979), 33 N.S.R.(2d) 636; 57 A.P.R. 636; 48 C.C.C.(2d) 440 (S.C.A.D.), refd to. [para. 162].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234; 5 C.R.(4th) 351, refd to. [para. 163].

R. v. John, [1985] 2 S.C.R. 476; 63 N.R. 141; 11 O.A.C. 391, refd to. [para. 167].

R. v. Wallen, [1990] 1 S.C.R. 827; 107 N.R. 50; 107 A.R. 114, refd to. [para. 169].

R. v. Erven, [1979] 1 S.C.R. 926; 25 N.R. 49; 30 N.S.R.(2d) 89; 49 A.P.R. 89, refd to. [para. 169].

Boucher v. R., [1955] S.C.R. 16, refd to. [para. 171].

R. v. Turvey (1969), 1 N.S.R.(2d) 360, refd to. [para. 171].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(b) [para. 82].

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [paras. 160, 182].

Authors and Works Noticed:

McCormick on Evidence (2nd Ed. 1972), p. 192 [para. 78].

McWilliams, Canadian Criminal Evidence (3rd Ed.), p. 10-23 [para. 60].

Wigmore on Evidence (McNaughton Rev. 1961), vol. 8, p. 111, para. 2196 [para. 77].

Counsel:

R.J. Wolson and J.A. McAmmond, for the appellant;

R.A. Saull, for the respondent.

This appeal was heard before Scott, C.J.M., O'Sullivan and Philp, JJ.A., of the Manitoba Court of Appeal, on October 30-31 and November 1, 1991. The decision of the Court of Appeal was delivered on Janu­ary 3, 1992, when the following opinions were filed:

Scott, C.J.M. (Philp, J.A., concurring) - see paragraphs 1 to 172;

O'Sullivan, J.A. - see paragraphs 173 to 183.