R. v. Joyce (K.R.), (1998) 203 N.B.R.(2d) 1 (CA)

• Judge: Ayles, Turnbull and Drapeau, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: July 27, 1998
• Jurisdiction: New Brunswick
• Citations: (1998), 203 N.B.R.(2d) 1 (CA);1998 CanLII 12216 (NB CA);203 NBR (2d) 1;[1998] NBJ No 312 (QL)

R. v. Joyce (K.R.) (1998), 203 N.B.R.(2d) 1 (CA);

    203 R.N.-B.(2e) 1; 518 A.P.R. 1

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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Temp. Cite: [1998] N.B.R.(2d) TBEd. AU.028

Kevin R. Joyce (appellant) v. Her Majesty The Queen (respondent)

(159/97/CA)

Indexed As: R. v. Joyce (K.R.)

New Brunswick Court of Appeal

Ayles, Turnbull and Drapeau, JJ.A.

July 27, 1998.

Summary:

The accused was convicted of aggravated assault and was sentenced to 11 years' im­prisonment. A 10 year firearms prohibition order was also imposed. The accused ap­pealed the conviction and sought leave to appeal the sentence.

The New Brunswick Court of Appeal dismissed the conviction appeal and the sentence appeal.

Criminal Law - Topic 4353

Procedure - Charge or directions to jury - Directions regarding corroboration - [See Criminal Law - Topic 4354 ].

Criminal Law - Topic 4354

Procedure - Charge or directions to jury - Directions regarding evidence of ac­complices - The accused was convicted of aggravated assault - The trial judge had cautioned the jury that Trafton, an ac­complice or accessory, was an unsavoury witness and that they must be careful in relying upon his testimony - The accused appealed his conviction, arguing, inter alia, that the trial judge should have warned the jury of the danger of convicting the ac­cused on the uncorroborated evidence of Trafton and that the judge should have urged the jurors to look for corroborating evidence - The New Brunswick Court of Appeal rejected the ground of appeal - The trial judge's choice not to warn the jury of the danger of convicting on the uncor­roborated evidence of Trafton was a proper exercise of discretion - Further, the ac­cused was not prejudiced by the approach taken by the trial judge where there was some evidence which corroborated Traf­ton's testimony - See paragraphs 21 to 25.

Criminal Law - Topic 4388

Procedure - Charge or directions to jury - Directions re addresses by counsel - The accused appealed his conviction for ag­gravated assault - He argued, inter alia, that a new trial should be ordered where the Crown counsel expressed his personal opinion with respect to the credibility of a defence witness in his address to the jury -The New Brunswick Court of Appeal rejected the ground of appeal - The trial judge cautioned the jury and condemned the Crown's remarks - While the caution did not immediately follow the Crown's inappropriate comments, it was adequate to erase any prejudice which may have re­sulted - See paragraphs 28 to 31.

Criminal Law - Topic 4399.4

Procedure - Charge or directions to jury - Directions re allegations on cross-examina­tion or improper questions - The accused appealed his conviction for aggravated assault - He argued that the Crown's sug­gestion during cross-examination of a witness that the accused was in jail at some point prior to trial was comparable to a reference to an accused person's criminal record - The New Brunswick Court of Appeal rejected the ground of appeal - The accused's analogy was not sound - While reference to an accused's criminal record could easily be avoided, it was unrealistic to expect that jurors would never be made aware of the prior incarceration of an accused - Further, a record was proof of prior criminal conduct, but incarceration was not - In any event, the trial judge took great pains in his jury charge to ensure that no prejudice was caused to the accused by the Crown's suggestion - See paragraphs 26 to 27.

Criminal Law - Topic 4419

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Intemperate or improper statements - [See Criminal Law - Topic 4388 ].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, etc. - Warning to jury of danger of reliance on - [See Criminal Law - Topic 4354 ].

Criminal Law - Topic 5555

Evidence and witnesses - Proof of par­ticular matters - Prior convictions - [See Criminal Law - Topic 4399.4 ].

Criminal Law - Topic 5806

Sentencing - Co-accused - Sentence parity - The accused and another man (Haley) broke into the victim's home, intending to steal for the purpose of purchasing cocaine - They were armed with a bayonet - The victim, who was awakened, was beaten and cut with the bayonet - He was also struck in the thigh with a hatchet - The accused was convicted of aggravated assault and was sentenced to 11 years' imprisonment - The accused appealed the sentence, arguing that it was unreasonably disproportionate to the six year sentence received by Haley - The New Brunswick Court of Appeal rejected the argument - Haley had pleaded guilty early in the process, his role was less significant and his record was less extensive - See paragraph 33.

Criminal Law - Topic 5938

Sentence - Aggravated assault - The ac­cused was convicted of aggravated assault - The accused and another man broke into the victim's home, intending to steal for the purpose of purchasing cocaine - They were armed with a bayonet - The victim, who was awakened, was beaten and cut with the bayonet - He was also struck in the thigh with a hatchet - The intruders fled - The accused had cut the victim's telephone line and he was forced to walk naked and bleeding to a neighbour's house for help - The victim suffered serious and permanent bodily harm - The accused had a lengthy criminal record which included property crimes and crimes of violence - The trial judge sentenced the accused to 11 years' imprisonment and imposed a 10 year firearms prohibition - The New Brunswick Court of Appeal dismissed the accused's sentence appeal - See paragraphs 32 to 42.

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; [1983] 1 W.W.R. 193; 27 C.R.(3d) 304; 136 D.L.R.(3d) 89; 67 C.C.C.(2d) 1, refd to. [para. 22].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165; 104 D.L.R.(4th) 180; 82 C.C.C.(3d) 310; 21 C.R.(4th) 277, refd to. [para. 23].

R. v. Hayes, [1989] 1 S.C.R. 44; 89 N.R. 138; 89 N.S.R.(2d) 286; 227 A.P.R. 286; 68 C.R.(3d) 245; 48 C.C.C.(3d) 161, refd to. [para. 23].

R. v. Ostrowski and Correia, [1990] 2 S.C.R. 82; 107 N.R. 230; 70 Man.R.(2d) 122, refd to. [para. 23].

R. v. Sit (1989), 31 O.A.C. 21; 47 C.C.C.(3d) 45 (C.A.), revd. [1991] 3 S.C.R. 124; 130 N.R. 241; 50 O.A.C. 81, refd to. [para. 23].

R. v. Vautour (1987), 78 N.B.R.(2d) 84; 198 A.P.R. 84 (C.A.), refd to. [para. 23].

R. v. Pelletier (1986), 29 C.C.C.(3d) 533 (B.C.C.A.), refd to. [para. 23].

R. v. Pepin (1990), 98 N.S.R.(2d) 238; 263 A.P.R. 238; 57 C.C.C.(3d) 355 (C.A.), refd to. [para. 23].

R. v. Michaud (F.), [1996] 2 S.C.R. 458; 198 N.R. 231; 178 N.B.R.(2d) 308; 454 A.P.R. 308, refd to. [para. 28].

R. v. Leaver (M.J.) (1998), 201 N.B.R.(2d) 346; 514 A.P.R. 346 (C.A.), refd to. [para. 29].

R. v. Finta (1992), 53 O.A.C. 1; 73 C.C.C.(3d) 65 (C.A.), affd. [1994] 1 S.C.R. 701; 165 N.R. 1; 70 O.A.C. 241, refd to. [para. 29].

R. v. Romeo, [1991] 1 S.C.R. 86; 119 N.R. 309; 110 N.B.R.(2d) 57; 276 A.P.R. 57, reving. (1989), 93 N.B.R.(2d) 332; 238 A.P.R. 332 (C.A.), refd to. [para. 30].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 34].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 34].

R. v. Parent (1982), 38 N.B.R.(2d) 1; 100 A.P.R. 1 (C.A.), refd to. [para. 35].

R. v. Merrithew (1983), 46 N.B.R.(2d) 356; 121 A.P.R. 356 (C.A.), refd to. [para. 35].

R. v. Bartibogue (1988), 94 N.B.R.(2d) 157; 239 A.P.R. 157 (T.D.), refd to. [para. 35].

R. v. Aijo (1989), 100 N.B.R.(2d) 165; 252 A.P.R. 165 (C.A.), refd to. [para. 35].

R. v. Cloud (J.C.) and Cloud (R.) (1990), 104 N.B.R.(2d) 300; 261 A.P.R. 300 (T.D.), refd to. [para. 35].

R. v. Ginnish (E.M.) (1992), 130 N.B.R.(2d) 324; 328 A.P.R. 324 (T.D.), refd to. [para. 35].

R. v. Gallant (S.F.) (1992), 126 N.B.R.(2d) 421; 317 A.P.R. 421 (C.A.), refd to. [para. 35].

R. v. Augustine (T.A.) (1993), 136 N.B.R.(2d) 52; 347 A.P.R. 52 (C.A.), refd to. [para. 35].

R. v. Drisdelle (G.J.) (1994), 155 N.B.R.(2d) 81; 398 A.P.R. 81 (T.D.), refd to. [para. 35].

R. v. Wu (M.F.) (1994), 145 N.B.R.(2d) 107; 372 A.P.R. 107 (C.A.), refd to. [para. 35].

Counsel:

Richard L. Cove, for the appellant;

Randy W. DiPaolo, for the respondent.

This appeal was heard on May 14, 1998, before Ayles, Turnbull and Drapeau, JJ.A., of the New Brunswick Court of Appeal.

On July 27, 1998, Drapeau, J.A., delivered the following judgment for the Court of Appeal.