R. v. Logan, Logan and Johnson, (1988) 30 O.A.C. 321 (CA)

• Judge: Dubin, A.C.J.O., Morden and Tarnopolsky, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 19, 1988
• Jurisdiction: Ontario
• Citations: (1988), 30 O.A.C. 321 (CA);1988 CanLII 150 (ON CA);67 OR (2d) 87;57 DLR (4th) 58;46 CCC (3d) 354;68 CR (3d) 1;30 OAC 321;45 CRR 201

R. v. Logan (1988), 30 O.A.C. 321 (CA)

MLB headnote and full text

Her Majesty the Queen (respondent) v. Sutcliffe Logan, Hugh Logan and Warren Johnson (appellants)

(Nos. 975/85, 127/86, 279/86)

Indexed As: R. v. Logan, Logan and Johnson

Ontario Court of Appeal

Dubin, A.C.J.O., Morden and Tarnopolsky, JJ.A.

December 28, 1988.

Summary:

The three accused were involved in a series of offences in the City of Mississauga in 1983. They were charged and convicted of several offences, including attempted murder. Appeals were launched.

The Ontario Court of Appeal dismissed all appeals, except to the extent that convictions for robbery were substituted for the attempted murder convictions for two of the accused.

Civil Rights - Topic 3160

Trials - Due process - Fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent (Charter, s. 7) - The Ontario Court of Appeal distinguished between the right to remain silent (Charter, s. 7), and the protection against self-incrimination - See paragraph 70.

Civil Rights - Topic 3160

Trials - Due process - Fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent (Charter, s. 7) - H. Logan and S. Logan were in custody following a robbery of Becker's Store - H. Logan was charged with attempted murder - Both retained and instructed counsel - Shortly before trial, two undercover police officers were placed in the Logans' cell - The Logans' made inculpatory statements - S. Logan was thereafter charged with attempted murder - The Ontario Court of Appeal held that there was no violation of the Logans' right to remain silent, where there were no threats or inducements, no coercion by the officers for the Logans to ignore warnings by their counsel to remain silent or disguises used (e.g. disguises of legal counsel or religious advisors) - See paragraphs 69 to 74.

Civil Rights - Topic 3161

Trials - Due process - Fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Conviction on basis of objective foresee ability ("ought to have known") - The Criminal Code, s. 21(2), provided that a party to an unlawful purpose would be convicted of, inter alia, attempted murder, where the party "knew or ought to have known" that attempted murder might result from carrying out the unlawful purpose - The Ontario Court of Appeal stated that "insofar as s. 21(2) permits a conviction of a party for the offence of attempted murder on the basis of objective foreseeability [ought to have known], a lesser degree of mens rea than is required for the principal, it is contrary to the principles of fundamental justice [Charter, s. 7]" - See paragraph 142 - "Thus on a charge of attempted murder, where s. 21(2) is invoked ... the words of s. 21(2) 'ought to have known' must be held to be inoperative and cannot be resorted to by the trier of fact to determine the guilt of such an accused person" - See paragraph 146 - The court held that the words could not be saved by s. 1 of the Charter - See paragraphs 108 to 153.

Civil Rights - Topic 4302

Protection against self-incrimination - Right to remain silent - Distinguished - [See first Civil Rights - Topic 3160 above].

Civil Rights - Topic 4604

Civil rights - Right to counsel - Denial of - What constitutes - The Canadian Charter of Rights and Freedoms, s. 10(b), provided that everyone has the right on arrest or detention to retain and instruct counsel and to be informed of that right - The Ontario Court of Appeal discussed whether s. 10(b) creates a continuing right to counsel such that an accused has a right to be reinstructed before every occasion on which the police question him - See paragraphs 1 to 68.

Civil Rights - Topic 4604

Right to counsel - Denial of - What constitutes - H. Logan and S. Logan were in custody following a robbery of Becker's Store - H. Logan was charged with attempted murder - Both retained and instructed counsel - Shortly before trial, two undercover police officers were placed in the Logans' cell - The Logans made inculpatory statements - S. Logan was thereafter also charged with attempted murder - The Ontario Court of Appeal acknowledged that the right to counsel given by s. 10(b) continued after the initial retention and instruction - The court held however, that there was no denial of the Logans' right to counsel in the conduct of the police in obtaining the statements - See paragraphs 1 to 68.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See Civil Rights - Topic 3161 above].

Civil Rights - Topic 8469

Canadian Charter of Rights and Freedoms - Interpretation - United States experience - The Ontario Court of Appeal stated that "the American jurisprudence results in a right to remain silent which is wider than that in Canada" - Thus the court found United States cases cited by counsel to be of no assistance in interpreting s. 10(b) of the Charter - See paragraph 50.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - The Ontario Court of Appeal agreed that "a Charter ground should not be raised for the first time before an appellate court if the issue is dependent on findings of fact not made by a trial judge, particularly if such issues of fact are not even raised before him" - See paragraph 42.

Criminal Law - Topic 202

Common law defences - Duress - H. Logan and others were involved in a robbery of a Mac's Milk Store - H. Logan, with a firearm in his hand, took a store employee to the cash register, and demanded and took money from her - He raised the defence of duress (i.e. he participated in the robbery under threat of being shot) - The Ontario Court of Appeal held that pursuant to s. 17 of the Criminal Code, the defence of duress was not open to an accused who actually committed a robbery, but only to an aider or abettor - Here the evidence showed that H. Logan actually committed the robbery - See paragraphs 75 to 89.

Criminal Law - Topic 1256

Attempted murder - General - H. Logan, S. Logan and W. Johnson were convicted of attempted murder - They appealed, arguing that the jury in convicting them must have used s. 21(2) of the Criminal Code (parties provision) and that s. 21(2) was unconstitutional - The Crown had argued that H. Logan fired the shot and that S. Logan and W. Johnson as parties were equally liable - The Ontario Court of Appeal affirmed H. Logan's attempted murder conviction, where the evidence was overwhelming that H. Logan did the shooting and the jury did not rely on s. 21(2) of the Code - The court held however, that S. Logan and W. Johnson could not be convicted as parties because the part of s. 21(2) relied upon by the jury to convict was inoperative as being contrary to s. 7 of the Charter (principles of fundamental justice) - See paragraphs 108 to 153.

Criminal Law - Topic 1256

Attempted murder - General - [See Civil Rights - Topic 3161 above].

Criminal Law - Topic 2742

Parties - Necessary intention or knowledge - [See Civil Rights - Topic 3161 above].

Criminal Law - Topic 4354

Procedure - Jury charge - Directions regarding evidence of witnesses, co-accused and accomplices - The Ontario Court of Appeal examined a trial judge's jury charge wherein he cautioned the jury with respect to evidence of accomplices and co-accused - The court held that the charge was adequate - See paragraphs 90 to 98.

Criminal Law - Topic 4357

Procedure - Jury charge - Directions regarding defences and theory of the defence - The Ontario Court of Appeal referred to two errors in a trial judge's jury charge respecting the defence of duress - See paragraphs 86, 87.

Criminal Law - Topic 5433

Evidence and witnesses - Cross-examination of accused - Respecting inculpatory statements - H. Logan and S. Logan were involved in a robbery of a Becker's Store wherein an employee was shot - They were charged with attempted murder - At trial, H. Logan was cross-examined by counsel for S. Logan respecting an admission made by H. Logan to an admission officer at a detention centre - H. Logan objected to such cross-examination taking place before the admission to a person in authority was ruled voluntary and admissible - The Ontario Court of Appeal held that the trial judge was correct in allowing the cross-examining, where H. Logan took the witness stand voluntarily and had given evidence which incriminated S. Logan - See paragraphs 99 to 100.

Criminal Law - Topic 5439

Evidence and witnesses - Cross-examination of accused - By counsel for co-accused - [See Criminal law - Topic 5433 above].

Criminal Law - Topic 5439

Evidence and witnesses - Cross-examination of accused - By counsel for co-accused - The Ontario Court of Appeal referred to an early case which held that an accused has a right to cross-examine a co-accused who has testified, whether the co-accused's evidence is favourable or unfavourable to him - See paragraph 104.

Criminal Law - Topic 5936

Sentence - Multiple offences - H. Logan was convicted of various charges including, attempted murder, break, enter and theft, robbery, unlawful use of firearms and unlawful confinement - He was sentenced to a total of 18 years' imprisonment - The Ontario Court of Appeal affirmed the sentence.

Cases Noticed:

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40; 25 C.C.C.(3d) 207; 50 C.R.(3d) 289; 26 D.L.R.(4th) 493, consd. [paras. 39, 43, 51, 62, 66, 67].

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. 43, 51, 63, 67].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, consd. [paras. 46-49].

R. v. Rothman (1978), 42 C.C.C.(2d) 377, refd to. [para. 47].

Massiah v. U.S. (1964), 377 U.S. 201, refd to. [para. 50].

Miranda v. Arizona (1966), 384 U.S. 436, refd to. [para. 50].

Brewer v. Williams (1977), 430 U.S. 387, refd to. [para. 50].

U.S. v. Henry (1980), 477 U.S. 264, refd to. [para. 50].

Maine v. Moulton (1985), 106 S.Ct. 477, refd to. [para. 50].

Kuhlmann v. Wilson (1986), 106 S.Ct. 2616, refd to. [para. 50].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481; 45 C.R.(3d) 97, refd to. [para. 51].

R. v. Baig, [1987] 2 S.C.R. 537; 81 N.R. 87, consd. [paras. 51, 63, 65].

R. v. Hicks (1988), 28 O.A.C. 118; 42 C.C.C.(3d) 394, consd. [paras. 53, 72].

R. v. Sophonow (1984), 29 Man.R.(2d) 1; 12 C.C.C.(3d) 272 (C.A.), consd. [para. 54].

R. v. Hebert (1988), 3 Y.R. 81, consd. [para. 56].

R. v. Emile (1988), 42 C.C.C.(3d) 408, consd. [para. 57].

R. v. Morin (1987), 21 O.A.C. 38; 36 C.C.C.(3d) 50, affd. (1988), 88 N.R. 161, consd. [para. 59].

R. v. Playford (1987), 24 O.A.C. 161; 40 C.C.C.(3d) 142, consd. [para. 60].

R. v. J.T.J., Jr. (1988), 50 Man.R.(2d) 300 (C.A.), consd. [para. 64].

R. v. Anderson (1984), 2 O.A.C. 258; 10 C.C.C.(3d) 417, consd. [paras. 65, 67].

R. v. Marcoux, [1976] 1 S.C.R. 763; 15 N.R. 178, consd. [para. 70].

R. v. Hicks (1988), 28 O.A.C. 118; 42 C.C.C.(3d) 394, consd. [para. 72].

R. v. Woolley (1988), 25 O.A.C. 390; 40 C.C.C.(3d) 531, consd. [para. 73].

R. v. Paquette, [1977] 2 S.C.R. 189; 11 N.R. 451, refd to. [para. 80].

R. v. Mena (1987), 20 O.A.C. 50; 57 C.R.(3d) 172 (C.A.), dist. [paras. 80, 82, 83].

R. v. Fitzpatrick, [1977] N.I. 20 (C.C.A.), refd to. [para. 88].

R. v. Ma, Ho and Lai (1978), 44 C.C.C.(2d) 537, refd to. [para. 104].

R. v. Young (1981), 64 C.C.C.(2d) 13, refd to. [para. 104].

R. v. Pelletier (1986), 29 C.C.C.(3d) 533, refd to. [para. 104].

R. v. McLaughlin (1974), 15 C.C.C.(2d) 562, consd. [para. 104].

R. v. Kendall and McKay (1987), 20 O.A.C. 134; 57 C.R.(3d) 249, consd. [para. 105].

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, consd. [paras. 136, 137, 142].

R. v. Ancio (1984), 52 N.R. 161; 2 O.A.C. 124; 10 C.C.C.(3d) 385, consd. [para. 138].

R. v. Nantais, [1966] 4 C.C.C. 108, appld. [para. 152].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 142]; sect. 7 [paras. 17, 18, 40, 45, 69-74, 135-153]; sect. 10(b) [paras. 17, 18, 39-68]; sect. 11(c), sect. 13 [para. 45].

Criminal Code, R.S.C. 1970, c. C-34, sect. 17 [paras. 76-89]; sect. 21 [para. 80]; sect. 21(2) [paras. 109, 133-153]; sect. 212 [para. 133]; sect. 213(d) [para. 136]; sect. 222 [para. 133]; sect. 302(a) [para. 83]; sect. 613(1)(b)(i) [para. 149].

United States Constitution, Fifth Amendment [para. 50]; Sixth Amendment [paras. 39, 50, 58].

Authors and Works Noticed:

Ratushny, Self-Incrimination in the Canadian Criminal Process (1979), pp. 65, 66 [para. 71].

Shorter Oxford English Dictionary (1973), p. 1813 [para. 67].

Counsel:

Peter J. Connelly, for the appellant Sutcliffe Logan;

James Lockyer, for the appellant Hugh Logan;

Donald Powell, for the appellant Warren Johnson;

S. Casey Hill and W. Brian Trafford, Q.C., for the respondent.

These appeals were heard on November 16-19, 1987, and January 19, 1988, before Dubin, A.C.J.O., Morden and Tarnopolsky, JJ.A., of the Ontario Court of Appeal. The following decision was released by the court on December 28, 1988: