R. v. Lamirande (S.C.),

• Jurisdiction: Manitoba
• Judge: Scott, C.J.M., Philp and Monnin, JJ.A.
• Neutral Citation: 2002 MBCA 41
• Citation: 2002 MBCA 41,(2002), 163 Man.R.(2d) 163 (CA),[2002] 9 WWR 17,164 CCC (3d) 299,[2002] MJ No 133 (QL),163 Man R (2d) 163,269 WAC 163,269 W.A.C. 163,163 ManR(2d) 163,[2002] M.J. No 133 (QL),(2002), 163 ManR(2d) 163 (CA),163 Man.R.(2d) 163
• Date: 25 March 2002
• Court: Court of Appeal (Manitoba)

R. v. Lamirande (S.C.) (2002), 163 Man.R.(2d) 163 (CA);

    269 W.A.C. 163

MLB headnote and full text

Temp. Cite: [2002] Man.R.(2d) TBEd. AP.010

Her Majesty The Queen (respondent) v. Sheri Cathleen Lamirande and Norman Guimond (accused/appellants)

(AR 99-30-04277; AR 99-30-04282; 2002 MBCA 41)

Indexed As: R. v. Lamirande (S.C.) et al.

Manitoba Court of Appeal

Scott, C.J.M., Philp and Monnin, JJ.A.

March 25, 2002.

Summary:

Two accused, one male and one female, were charged with manslaughter and robbery. Two others were alleged to have been involved. Neither accused was alleged to have been directly involved in the killing. The case generated much media publicity during jury selection and in the early stages of the trial. During jury selection, a television broadcast aired which referred to matters that were discussed with the judge in the absence of the already selected jury members. The accused sought a mistrial.

The Manitoba Court of Queen's Bench, in a decision reported at 136 Man.R.(2d) 282, declined to order a mistrial. The following issues arose with respect to the male accused: (1) whether the police violated his s. 10(b) Charter right to retain and instruct counsel without delay; (2) whether the police violated his s. 7 right to remain silent; and (3) if the police violated his s. 7 or 10(b) rights, did s. 24(2) of the Charter apply so that his answers to police questioning were inadmissible at trial.

The Manitoba Court of Queen's Bench, in a decision reported at 137 Man.R.(2d) 132, held that the police had not contravened the accused's s. 10(b) Charter right but had contravened his s. 7 right. The court excluded the evidence from the trial. The female accused was transferred from a remand centre to a correctional institution. Upon her admission, she was searched. Correctional authorities seized documents which they turned over to police. The female accused alleged that the documents should be excluded because: 1) the search and seizure violated her s. 8 Charter rights and 2) the documents contained evidence of bad character.

The Manitoba Court of Queen's Bench, in a decision reported at 137 Man.R.(2d) 266, held that s. 8 of the Charter was not violated and the evidence was admissible, with some editing. The accused were convicted and sentenced to life imprisonment for manslaughter and 15 years concurrent for robbery. The accused appealed their convictions and sentences.

The Manitoba Court of Appeal dismissed the appeals.

Civil Rights - Topic 1365

Security of the person - Institutional inmates - Right to privacy and dignity - The accused was charged with manslaughter and robbery - She was transferred from a remand centre to a correctional institution - Upon admission, she was searched - Correctional authorities seized documents (including letters) which they turned over to police - The accused alleged that the documents should be excluded because the search and seizure violated her s. 8 Charter rights - The trial judge rejected the argument - The accused appealed - The Manitoba Court of Appeal dismissed the appeal - The accused had no reasonable expectation of privacy with respect to the documents seized - See paragraphs 18 to 39.

Civil Rights - Topic 1370

Security of the person - Institutional inmates - Interception of private communications - [See Civil Rights - Topic 1365 ].

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See Civil Rights - Topic 1365 ].

Civil Rights - Topic 3146

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Jury selection (Charter, s. 7 or 11(d)) - [See Criminal Law - Topic 4312 ].

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - The accused was charged with manslaughter and robbery - Following his arrest, he was advised of his right to counsel and given the standard police caution: that he was not bound to say anything but that anything he did say would be taken down in writing and could be used in evidence - Before questioning, he was again advised of his rights and contacted counsel - His interview was videotaped without his being specifically told, contrary to the standard police policy of first seeking permission to videotape - The Manitoba Court of Appeal stated that even if the police had deliberately failed to advise the accused that his testimony was being videotaped, he was fully aware of his right to remain silent and chose not to - The statement was voluntary - The only dispute was over the way in which the evidence was recorded - See paragraphs 40 to 58.

Criminal Law - Topic 4312

Procedure - Jury - General - Impartiality - Two accused, one male and one female, were charged with manslaughter and robbery - The robbery was allegedly planned by members of an aboriginal gang - The male accused, and perhaps the female accused, were aboriginal - The trial judge would not permit counsel for the female accused to ask jurors if they were aboriginal - On appeal, counsel submitted that the jury panel had to contain sufficient aboriginal persons in proportion to their percentage in the community - He argued that by refusing to permit questioning about the jurors' backgrounds, the trial judge precluded the female accused from establishing a factual basis for her claim that the jury panel was unfairly constituted, thereby denying her a fair trial (Charter, s. 11(d)) - He claimed that the exclusion of aboriginals from the jury panel created an appearance of bias and contravened the accused's right to an independent and impartial tribunal - The Manitoba Court of Appeal rejected the submissions - There was no evidence that the jury panel was not randomly selected - See paragraphs 150 to 162.

Criminal Law - Topic 4313

Procedure - Jury - General - Questioning of prospective jurors - [See Criminal Law - Topic 4312 ].

Criminal Law - Topic 4326

Procedure - Jury - General - Examination of juror by trial judge - The accused were being tried for manslaughter and robbery - The victim's father, when leaving the courtroom, allegedly turned towards the female accused and shook his fist at her - It was asserted that one juror may have seen the incident and become upset by it - Defence counsel applied to have the trial judge question the jurors respecting the incident - They also asked him to consider discharging one or more jurors and "perhaps" to declare a mistrial, depending on the incident's impact on the jury - The Manitoba Court of Appeal held that the accused were not deprived of a fair trial by the incident or the trial judge's refusal to question the jurors - The trial judge gave the jury a prompt and appropriate instruction, a simple reminder of their duties as jurors - See paragraphs 137 to 149.

Criminal Law - Topic 4326

Procedure - Jury - General - Examination of juror by trial judge - [See third Criminal Law - Topic 4633 ].

Criminal Law - Topic 4345

Procedure - Jury - Evidence - Jury request to review evidence or argument - The accused was charged with manslaughter and robbery - During deliberations, the jury requested transcripts of various witnesses' evidence and a copy of the accused's statement to police - When the jury had received all of the transcripts but had not yet received a copy of the accused's statement, it returned with the verdict - On appeal, the accused submitted that she was entitled to have the jury read her statement before it decided the verdict - The Manitoba Court of Appeal disagreed - The accused's statement, which was essentially a complete denial of her involvement in the robbery, was repeated many times over during the course of the evidence and counsel's submissions - The jury could not have lost sight of this central feature to her defence - See paragraphs 172 to 181.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused was convicted of manslaughter and robbery - On appeal, he alleged that the trial judge failed to explain the concept of reasonable doubt in an adequate manner to the jury, in particular that proof beyond a reasonable doubt had a specific meaning in law - The Manitoba Court of Appeal reviewed the jury charge and held that it was adequate - The charge met the test of substantial compliance with R. v. Lifchus (S.C.C.) - It made it abundantly clear that the standard of proof was not on a balance of probabilities, but on a higher standard - See paragraphs 163 to 171.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused was convicted of manslaughter and robbery - Desjarlais, an accomplice, was the Crown's principal witness - Desjarlais testified that he and the accused had participated together in several armed robberies during the weeks immediately prior to the robbery in issue at trial - Desjarlais had entered into an immunity agreement with the Crown - He had a lengthy criminal record and had admittedly lied to police on numerous occasions - On appeal, the accused submitted that the trial judge erred in failing to instruct the jury as a matter of law that Desjarlais was a self-confessed perjurer and therefore it was dangerous to rely solely on his evidence to convict - Further, this was exacerbated by his failure to provide a balanced analysis of Desjarlais' evidence - The Manitoba Court of Appeal reviewed the jury charge and rejected the submission - See paragraphs 105 to 119.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - Two accused, one male and one female, were convicted of manslaughter and robbery - There was evidence that the female accused associated with a particular gang and that the male accused was a member of the gang and had participated in prior robberies with other gang members - The Manitoba Court of Appeal held that the trial judge adequately charged the jury with respect to the limited use of this evidence - Respecting the male accused, a specific and clear warning was given that the evidence was being led only as part of the background or narrative leading up to the robbery, and for no other purpose - Nothing more was required - Although the trial judge failed to give a similar warning respecting the female accused, he gave a general warning respecting both accused's lifestyles and social conduct - See paragraphs 92 to 99.

Criminal Law - Topic 4385.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding inadmissible evidence - The accused was convicted of manslaughter and robbery - Desjarlais, an accomplice, was the Crown's principal witness - He had entered into an immunity agreement with the Crown, had a lengthy criminal record and had admittedly lied to police on numerous occasions - The Crown attempted to deal with Desjarlais' record by establishing that he voluntarily gave a statement to the police admitting to his numerous offences - Defence counsel successfully objected to this line of questioning after only a few questions and answers - On appeal, the accused submitted that the trial judge erred in not warning the jury to disregard this self-serving evidence - The Manitoba Court of Appeal rejected the submission - The inadmissible evidence was of no consequence in the totality of the evidence respecting Desjarlais - See paragraphs 182 to 184.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - The accused were charged with manslaughter and robbery - The case generated a lot of media publicity - During jury selection and in the very early stages of trial, there was inaccurate and improper media reporting - The trial judge refused the accused's request for a mistrial - The accused appealed - The Manitoba Court of Appeal dismissed the appeal - Declaring a mistrial was an extreme remedy to be exercised only when the prejudice was incapable of being corrected by a proper jury instruction - On no less than five occasions, starting with the general instruction to the jury panel before selection started and ending after the trial itself commenced, the jury was finally and unequivocally instructed to ignore media reports and to decide the case based on the evidence - This was more than adequate - See paragraphs 120 to 130.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - The accused was charged with manslaughter and robbery - Defence counsel complained that the victim's brother had assaulted him in the courthouse hallway - The brother was permitted to remain in the courtroom after being warned by the trial judge - A television story erroneously reported that the trial judge had advised defence counsel not to make unproven allegations - On appeal, the accused submitted that a mistrial should have been declared - The Crown responded that: the jury was constantly warned not to be distracted by extraneous issues and to concentrate on the evidence presented at trial; these events occurred before the trial itself commenced; and a motion to exclude the brother was abandoned, demonstrating that defence counsel was able to carry on effectively - The Manitoba Court of Appeal agreed with the Crown's submissions - The incident and the subsequent media publicity did not impact on trial fairness - See paragraphs 131 to 136.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - The accused were being tried for manslaughter and robbery - The victim's father, when leaving the courtroom, allegedly turned towards the female accused and shook his fist at her - Defence counsel applied to have the trial judge question the jurors respecting the incident - They also asked him to consider discharging one or more jurors and "perhaps" to declare a mistrial, depending on the incident's impact on the jury - The Manitoba Court of Appeal stated that "There is no rule of law that on every occasion when there is an allegation of inappropriate communication or conduct, the jurors must be personally interrogated. It is a question rather of the nature and extent of the incident and its potential impact on the jury, a matter that is peculiarly within the province of the trial judge." - See paragraph 147.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - The Manitoba Court of Appeal stated that "The problem of spectator outbursts in criminal trials has received considerable attention in American case law. Two dominant principles emerge. The first is that the trial judge is in the best position to judge the effect of the spectator's prejudicial conduct. ... The second principle is that when deciding whether a spectator's misconduct necessitates a mistrial, the court should look at whether the misconduct was calculated to influence the jury." - See paragraphs 145 to 146.

Criminal Law - Topic 5336.1

Evidence and witnesses - Confessions and voluntary statements - Recording or videotaping interrogation - [See Civil Rights Topic 3160 ].

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - [See Civil Rights - Topic 3160 ].

Criminal Law - Topic 5449

Evidence and witnesses - Testimony respecting the accused - Character of accused - General - The accused was charged with manslaughter and robbery - The robbery was allegedly planned by members of a particular gang - Correctional authorities seized documents that disclosed the accused's association with the gang - The accused argued that the documents should be excluded as "bad character" evidence - The trial judge admitted the documents, subject to some editing - The Manitoba Court of Appeal affirmed the decision - The documents' probative value clearly outweighed their prejudicial effect - The evidence provided essential background and context within which the accused and three others came together, planned, and executed the robbery - Background and context alone were sufficient to justify the admission of such evidence - See paragraphs 59 to 87.

Criminal Law - Topic 5449

Evidence and witnesses - Testimony respecting the accused - Character of accused - General - The accused was convicted of manslaughter and robbery - Four persons were alleged to have taken part in the crime - One of them, Desjarlais, was the Crown's principal witness - Desjarlais testified that he and the accused had participated together in several armed robberies during the weeks immediately prior to the robbery in issue at trial - On appeal, the accused submitted, inter alia, that this testimony should not have been admitted because it was "bad character" evidence - The Manitoba Court of Appeal rejected the submission - The evidence was highly relevant in explaining the background for the robbery - See paragraphs 88 to 91.

Criminal Law - Topic 5450

Evidence and witnesses - Testimony respecting the accused - Character of accused - Jury charge - [See Criminal Law - Topic 4379 ].

Criminal Law - Topic 5510

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

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences (incl. repeat, dangerous or long-term offenders) - Two accused, one male and one female, were convicted of manslaughter and robbery - The robbery was planned by gang members, including the male accused - The female accused associated with the gang - Two others took part in the robbery - Neither accused was alleged to have been directly involved in the killing - The sentencing judge imposed life sentences - He considered, inter alia, that each accused was "dangerous" - The accused appealed, asserting that the dangerous offender requirements of the Criminal Code had been circumvented - The Crown disputed that this was an instance of a "disguised" dangerous offender hearing - The Manitoba Court of Appeal rejected the accused's argument and affirmed the sentences - See paragraphs 185 to 211.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - Two accused were sentenced to life imprisonment for manslaughter - They appealed - The Manitoba Court of Appeal agreed that the trial judge erred in holding that s. 718.2 of the Criminal Code (sentencing of aboriginal offenders) was limited to situations where a sanction other than imprisonment was considered - However, the error was of no consequence - Given the nature of the crime and the circumstances of the offenders, the sentencing judge correctly held that the sentence would have been the same whether the offender was aboriginal or nonaboriginal - See paragraphs 189 and 212 to 215.

Criminal Law - Topic 5848.6

Sentencing - Considerations on imposing sentence - Life imprisonment - Two accused, one male and one female, were convicted of manslaughter and robbery - Two others were involved - The robbery was planned by members of a gang - The male accused was a member of the gang - The female accused associated with the gang - Neither accused was alleged to have been directly involved in the killing - The sentencing judge sentenced both accused to life imprisonment for manslaughter - He considered the brutality and senselessness of the killing and the purpose of the robbery, which was to obtain money and cigarettes to continue a life of leisure partying - He found a total lack of remorse by both accused and no reasonable prospect of rehabilitation of either accused - The Manitoba Court of Appeal affirmed the life sentences - See paragraphs 185 to 217.

Criminal Law - Topic 5882

Sentence - Manslaughter - [See Criminal Law - Topic 5848.6 ].

Police - Topic 2244

Duties - Duty to inform persons under investigation - Police warning - Content of - The Manitoba Court of Appeal noted that the standard warning that evidence may "be taken down in writing and used as evidence" was out of date and needed revision - There were a wide variety of technological aids available, and practical incentives for the police to videotape witness interviews - Rather than focusing on the particular technology likely to be used, and tailoring a warning for each, the court stated that the approach exemplified by s. 56 of the Young Offenders Act offered a useful improvement - See paragraphs 54 to 55.

Prisons - Topic 1109

Administration - Prisoners' rights - Searches - General - [See Civil Rights - Topic 1365 ].

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 17].

Weatherall v. Canada (Attorney General) - see Conway v. Canada.

Conway v. Canada, [1993] 2 S.C.R. 872; 154 N.R. 392, refd to. [para. 22].

R. v. Williamson (S.B.) - see R. v. Feist (M.A.) et al.

R. v. Feist (M.A.) et al. (1998), 218 A.R. 332; 123 C.C.C.(3d) 540 (Q.B.), disagreed with [para. 24].

R. v. Sutherland (J.D.) (1997), 120 Man.R.(2d) 125 (Q.B.), refd to. [para. 24].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 27].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 28].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 28].

Gagnon v. Leclerc Institution - see Gagnon et al. v. Deslauriers et al.

Gagnon et al. v. Deslauriers et al. (1997), 141 F.T.R. 163 (T.D.), refd to. [para. 32].

Fieldhouse v. Kent Institution - see Fieldhouse v. Canada.

Fieldhouse v. Canada (1995), 98 C.C.C.(3d) 207 (B.C.C.A.), refd to. [para. 32].

R. v. Dorfer (F.S.) (1996), 69 B.C.A.C. 197; 113 W.A.C. 197; 104 C.C.C.(3d) 528 (C.A.), refd to. [para. 32].

R. v. Brown (D.A.R.) (2000), 146 Man.R.(2d) 223 (Q.B.), refd to. [para. 32].

R. v. Stevens (E.R.) et al. (2001), 291 A.R. 40 (Q.B.), refd to. [para. 32].

R. v. McPherson, [1997] N.W.T.R. 155 (S.C.), refd to. [para. 32].

R. v. Smith (R.E.) et al., [2001] B.C.T.C. 859 (S.C.), refd to. [para. 35].

United States v. Hinckley (1981), 525 F.Supp. 1342 (Dist. Ct.), refd to. [para. 37].

Hudson v. Palmer (1984), 104 S.Ct. 3194; 82 L.Ed.2d 393, refd to. [para. 37].

Ballance v. Rowlette et al. - see Ballance v. Young et al.

Ballance v. Young et al. (2000), 130 F.Supp.2d 762 (Va. W.D.), affd. 2001 U.S. App. Lexis 7677 (C.A. 4th Cir.), refd to. [para. 38].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 41].

R. v. Spence (1991), 89 Sask.R. 276 (C.A.), refd to. [para. 41].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201, refd to. [para. 44].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201, refd to. [para. 49].

R. v. Smith (J.M.) (1996), 88 O.A.C. 374; 105 C.C.C.(3d) 58 (C.A.), refd to. [para. 50].

R. v. Farrell (J.E.) (1992), 103 Nfld. & P.E.I.R. 178; 326 A.P.R. 178; 76 C.C.C.(3d) 201; 11 C.R.R.(2d) 255; 46 M.V.R.(2d) 318 (P.E.I.C.A.), refd to. [para. 51].

R. v. Van Haarlem (1991), 135 N.R. 379; 7 B.C.A.C. 133; 15 W.A.C. 133; 64 C.C.C.(3d) 543 (C.A.), refd to. [para. 51].

R. v. Liew (K.L.) (1998), 212 A.R. 381; 168 W.A.C. 381; 124 C.C.C.(3d) 202 (C.A.), refd to. [para. 51].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 54].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 56].

R. v. W.A.A. (1996), 113 Man.R.(2d) 153; 131 W.A.C. 153 (C.A.), refd to. [para. 63].

R. v. Wilson (G.R.) (1999), 138 Man.R.(2d) 139; 202 W.A.C. 139 (C.A.), refd to. [para. 18].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 69].

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, refd to. [para. 70].

R. v. Robertson, [1987] 1 S.C.R. 918; 75 N.R. 6; 20 O.A.C. 200, refd to. [para. 73].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 77].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 78].

R. v. J.D.R. (1997), 98 B.C.A.C. 204; 161 W.A.C. 204 (C.A.), refd to. [para. 79].

R. v. Persaud, [1996] O.J. No. 5345 (Gen. Div.), refd to. [para. 80].

R. v. Ma (1978), 44 C.C.C.(2d) 511 (Ont. C.A.), refd to. [para. 82].

R. v. Bengert et al. (No. 5) (1980), 53 C.C.C.(2d) 481 (B.C.C.A.), refd to. [para. 83].

R. v. MacDonald (1990), 38 O.A.C. 9; 54 C.C.C.(3d) 97 (C.A.), refd to. [para. 83].

R. v. Dujoy (M.A.) (1996), 92 O.A.C. 121 (C.A.), refd to. [para. 83].

R. v. L.W.G. (1996), 187 A.R. 21; 127 W.A.C. 21; 49 C.R.(4th) 178 (C.A.), refd to. [para. 83].

R. v. R.K.N. (1997), 97 O.A.C. 299; 114 C.C.C.(3d) 40 (C.A.), refd to. [para. 83].

R. v. Davy (D.) (2000), 137 O.A.C. 53 (C.A.), dist. [para. 83].

R. v. Mafi (K.) (1998), 114 B.C.A.C. 161; 186 W.A.C. 161; 130 C.C.C.(3d) 329 (C.A.), leave to appeal refused (1999), 240 N.R. 259; 132 B.C.A.C. 117; 215 W.A.C. 117 (S.C.C.), refd to. [para. 83].

R. v. Cardinal (M.C.) et al. (1998), 212 A.R. 30; 168 W.A.C. 30 (C.A.), refd to. [para. 83].

R. v. Lepage (J.P.), [1995] 1 S.C.R. 654; 178 N.R. 81; 79 O.A.C. 191, refd to. [para. 84].

R. v. Davison et al. (1974), 20 C.C.C.(2d) 424 (Ont. C.A.), refd to. [para. 87].

R. v. D.O. (2001), 148 O.A.C. 49; 156 C.C.C.(3d) 369 (C.A.), refd to. [para. 95].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 98].

R. v. Jorgensen (T.J.) (2001), 156 Man.R.(2d) 252; 246 W.A.C. 252 (C.A.), refd to. [para. 98].

R. v. Lesuk (R.W.) (2000), 148 Man.R.(2d) 39; 224 W.A.C. 39 (C.A.), refd to. [para. 98].

R. v. Avetysan (A.) et al. (1999), 174 Nfld. & P.E.I.R. 34; 533 A.P.R. 34 (Nfld. C.A.), refd to. [para. 98].

R. v. Siu (H.K.M.) (1998), 106 B.C.A.C. 161; 172 W.A.C. 161; 124 C.C.C.(3d) 301 (C.A.), refd to. [para. 98].

R. v. Binet, [1954] S.C.R. 52, refd to. [para. 108].

R. v. Crosby (W.S.) (1994), 130 N.S.R.(2d) 61; 367 A.P.R. 61; 88 C.C.C.(3d) 353 (C.A.), refd to. [para. 115].

R. v. Frankland (1985), 12 O.A.C. 321; 23 C.C.C.(3d) 385 (C.A.), refd to. [para. 115].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205, refd to. [para. 115].

R. v. G.C. (1996), 144 Nfld. & P.E.I.R. 204; 451 A.P.R. 204; 110 C.C.C.(3d) 233 (Nfld. C.A.), refd to. [para. 118].

R. v. Paterson (D.R.) (1998), 102 B.C.A.C. 200; 166 W.A.C. 200 (C.A.), refd to. [para. 125].

R. v. Emkeit, [1974] S.C.R. 133, refd to. [para. 126].

R. v. Taillefer (1995), 100 C.C.C.(3d) 1 (Que. C.A.), refd to. [para. 126].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 127].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 128].

R. v. Lessard et al. (1992), 49 Q.A.C. 119; 74 C.C.C.(3d) 552 (C.A.), refd to. [para. 129].

R. v. Elliott (J.Y.) (1999), 105 O.T.C. 241 (Sup. Ct.), dist. [para. 133].

R. v. Thorpe, [2000] E.W.J. No. 5480 (C.A. Cr. Div.), dist. [para. 143].

R. v. Afghanzada (Z.) (2000), 138 O.A.C. 303 (C.A.), dist. [para. 144].

Messer v. Kemp (1985), 760 F.2d 1080 (11th Cir.), refd to. [para. 145].

Hunt v. State (1988), 540 A.2d 1125 (Md. C.A.), refd to. [para. 145].

Marshall v. Hendricks (2000), 103 F.Supp.2d 749 (D.N.J.), refd to. [para. 146].

State v. Bible (1993), 858 P.2d 1152 (Ariz. S.C.), refd to. [para. 146].

R. v. Butler (P.) (1995), 68 B.C.A.C. 175; 112 W.A.C. 275; 104 C.C.C.(3d) 198 (C.A.), refd to. [para. 147].

R. v. Horne (1987), 78 A.R. 144; 35 C.C.C.(3d) 427 (C.A.), refd to. [para. 147].

R. v. Hanna (K.D.) (1993), 27 B.C.A.C. 42; 45 W.A.C. 42; 80 C.C.C.(3d) 289 (C.A.), refd to. [para. 147].

R. v. Gayle (C.) (2001), 145 O.A.C. 115; 154 C.C.C.(3d) 221 (C.A.), refd to. [para. 151].

Taylor v. Louisiana (1975), 95 S.Ct. 692, refd to. [para. 152].

Peters v. Kiff (1972), 407 U.S. 493, refd to. [para. 152].

Lockhart v. McCree (1986), 106 S.Ct. 1758, refd to. [para. 152].

R. v. Smoke, [1984] 2 C.N.L.R. 178 (Ont. S.C.), refd to. [para. 153].

R. v. Butler, [1985] 2 C.N.L.R. 107 (B.C.C.A.), refd to. [para. 153].

Taylor v. Louisiana (1975), 419 S.Ct. 692, refd to. [para. 153].

Holland v. Illinois (1990), 110 S.Ct. 803, refd to. [para. 153].

United States v. Phillips, [2001] CA7-QL 62 (7th Cir.), refd to. [para. 153].

McPherson v. Miers, [2001] CA10-QL 326 (10th Cir.), refd to. [para. 153].

R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1, refd to. [para. 155].

R. v. Sherratt, [1991] 1 S.C.R. 509; 122 N.R. 241; 73 Man.R.(2d) 161; 3 W.A.C. 161, refd to. [para. 156].

R. v. Kent, Sinclair and Gode (1986), 40 Man.R.(2d) 160 (C.A.), refd to. [para. 158].

R. v. Bear (E.A.) (1993), 90 Man.R.(2d) 286 (Q.B.), refd to. [para. 159].

R. v. Redhead (J.A.) (1995), 103 Man.R.(2d) 269 (Q.B.), refd to. [para. 159].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 165].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, consd. [para. 166].

R. v. Beauchamp (A.), [2000] 2 S.C.R. 720; 262 N.R. 119, refd to. [para. 169].

R. v. Russell (M.E.), [2000] 2 S.C.R. 731; 261 N.R. 339; 266 A.R. 379; 228 W.A.C. 379, refd to. [para. 169].

R. v. Avetysan (A.), [2000] 2 S.C.R. 745; 262 N.R. 96; 195 Nfld. & P.E.I.R. 338; 586 A.P.R. 338, refd to. [para. 169].

R. v. Olbey (1977), 38 C.C.C.(2d) 390 (Ont. C.A.), refd to. [para. 174].

R. v. Ferguson (L.) (2000), 130 O.A.C. 253; 35 C.R.(5th) 290 (C.A.), revd. (2001), 265 N.R. 201; 142 O.A.C. 92 (S.C.C.), dist. [para. 177].

R. v. Dionne (1987), 79 N.B.R.(2d) 297; 201 A.P.R. 297; 58 C.R.(3d) 351 (C.A.), refd to. [para. 181].

R. v. Armstrong, [1970] 1 C.C.C. 136; 1 N.S.R. 1965-69 681 (C.A.), refd to. [para. 183].

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. 199].

R. v. Lockyer (D.L.) (2000), 195 Nfld. & P.E.I.R. 1; 586 A.P.R. 1 (Nfld. C.A.), refd to. [para. 200].

R. v. Nichol (1981), 13 Man.R.(2d) 381 (C.A.), refd to. [para. 201].

R. v. Edwards (S.) (2001), 147 O.A.C. 363; 155 C.C.C.(3d) 473 (C.A.), refd to. [para. 202].

R. v. Hill (No. 2), [1977] 1 S.C.R. 827; 7 N.R. 373, refd to. [para. 202].

R. v. Pontello (1977), 38 C.C.C.(2d) 262 (Ont. C.A.), refd to. [para. 204].

R. v. Csincsa (M.A.P.) (1993), 85 Man.R.(2d) 241; 41 W.A.C. 241 (C.A.), refd to. [para. 206].

R. v. Brian (D.) (1998), 131 Man.R.(2d) 149; 187 W.A.C. 149 (C.A.), refd to. [para. 206].

R. v. Campbell (1991), 70 Man.R.(2d) 158 (C.A.), refd to. [para. 206].

R. v. Wilson (O.C.) (1991), 75 Man.R.(2d) 60; 6 W.A.C. 60 (C.A.), refd to. [para. 206].

R. v. Bell (M.A.) (1993), 85 Man.R.(2d) 139; 41 W.A.C. 139 (C.A.), refd to. [para. 206].

R. v. Braun (C.D.) (1994), 97 Man.R.(2d) 172; 79 W.A.C. 172 (C.A.), refd to. [para. 206].

R. v. Antoine (R.F.) et al. (1995), 102 Man.R.(2d) 302; 93 W.A.C. 302 (C.A.), refd to. [para. 206].

R. v. Robinson (D.) (1997), 101 B.C.A.C. 81; 164 W.A.C. 81; 121 C.C.C.(3d) 240 (C.A.), refd to. [para. 207].

R. v. Maxwell (A.J.) (1999), 131 B.C.A.C. 52; 214 W.A.C. 52 (C.A.), refd to. [para. 207].

R. v. Gray and Schinkel (No. 2) (1990), 64 Man.R.(2d) 284 (C.A.), refd to. [para. 210].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 211].

Authors and Works Noticed:

Furedy, J.J., and Liss, J., Countering Confessions Induced by the Polygraph: Of Confessionals and Psychological Rubber Hoses (1986), 29 Cr. L.Q. 91, p. 104 [para. 54].

Manitoba, Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba (1991), vol. 1, generally [para. 154].

McWilliams, P.K., Canadian Criminal Evidence (3rd Ed. 1997), p. 10:10510 [para. 86].

Counsel:

M.D. Glazer, for the appellant, Lamirande;

J.C. Prober, for the appellant, Guimond;

R.H. Morrison, Q.C., and C.M.F. Olson, for the respondent.

These appeals were heard on October 29, 30 and 31, 2001, by Scott, C.J.M., Philp and Monnin, JJ.A., of the Manitoba Court of Appeal. Scott, C.J.M., delivered the following decision for the Court of Appeal on March 25, 2002.