R. v. Matheson, (1979) 1 Man.R.(2d) 111 (CA)

JudgeFreedman, C.J.M., Monnin and Hall, JJ.A.
CourtCourt of Appeal (Manitoba)
Case DateSeptember 04, 1979
JurisdictionManitoba
Citations(1979), 1 Man.R.(2d) 111 (CA)

R. v. Matheson (1979), 1 Man.R.(2d) 111 (CA)

MLB headnote and full text

R. v. Matheson

Indexed As: R. v. Matheson

Manitoba Court of Appeal

Freedman, C.J.M., Monnin and Hall, JJ.A.

September 4, 1979.

Summary:

This case arose out of charges against the accused of armed robbery and using a firearm during the robbery contrary to ss. 302 and 83 of the Criminal Code of Canada, R.S.C. 1970, c. C-34. The accused initially elected trial by a judge without a jury and pleaded not guilty. The election was put to the accused in substantial compliance with s. 484 of the Criminal Code, but not in its exact words, and counsel for the accused spoke for him on electing. During the preliminary hearing the accused moved to re-elect, which he was permitted to do after his counsel waived the reading of the charge. Again, counsel for the accused spoke for him in re-electing trial by the provincial court judge. The accused pleaded not guilty and was convicted. The accused appealed on the grounds that the election and re-election were invalid, causing the provincial court judge to lose jurisdiction.

The Manitoba Court of Appeal dismissed the appeal and affirmed the convictions and sentences of the accused. The Court of Appeal held that in putting the accused to his election it was only necessary to substantially comply with s. 484 and that it was proper for counsel for the accused to speak for him throughout - see paragraphs 1 to 29.

Hall, J.A., dissenting, in the Court of Appeal, was of the opinion that there was no valid election by the accused, where the election was not put to the accused in the exact terms of s. 484 - see paragraphs 30 to 42.

Comment: On the issue of multiple convictions for the same subject matter respecting the offence of using a firearm during an offence, see also R. v. Eby (1979), 33 N.S.R.(2d) 80; 57 A.P.R. 80 (N.S.C.A.).

Criminal Law - Topic 82

Res judicata - Multiple convictions for same subject matter precluded - Bars to raising defence - S. 83 of the Criminal Code of Canada, R.S.C. 1970, c. C-34, provided that, where an accused uses a firearm while committing an offence, he could be convicted not only of the offence but also of the offence of using a firearm while committing the offence, the sentence for which was to be served consecutively to the other - The Manitoba Court of Appeal held that in view of s. 83 the accused could not rely on the prohibition against multiple convictions arising out of the same subject matter - See paragraphs 24 to 27.

Criminal Law - Topic 207

Common law defences - Alibi - The Manitoba Court of Appeal held that an alibi should be raised at the very first opportunity - See paragraphs 22 to 23.

Criminal Law - Topic 2845

Jurisdiction - Consent jurisdiction of provincial court judges - Election - Form of election - An election was put to the accused in substantially the terms of s. 484 of the Criminal Code of Canada, but not in its exact words - The accused was represented by counsel, who spoke for the accused in electing - The Manitoba Court of Appeal held that the election was valid, where the election was put to the accused in substantial compliance with s. 484 and where counsel spoke for the accused - See paragraphs 1 to 14.

Criminal Law - Topic 2850

Jurisdiction - Consent jurisdiction of provincial court judges - Re-election by accused - During preliminary hearing - During his preliminary hearing the accused asked to re-elect which he was permitted to do after his counsel waived the reading of the charge under s. 491 of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - The Manitoba Court of Appeal held that the accused's re-election was valid - The Court of Appeal held that it was permissible for counsel to speak for the accused and to waive the reading of the charge - The Court of Appeal held that the accused could re-elect during his preliminary hearing - See paragraphs 15 to 21.

Criminal Law - Topic 4788

Procedure - Counsel - Powers of - General - The Manitoba Court of Appeal held that counsel for an accused could do anything in court, which the accused himself could do, including speaking for the accused on election and re-election - See paragraph 20.

Criminal Law - Topic 5855

Sentence - Robbery - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 302 - The Manitoba Court of Appeal affirmed a sentence of the accused to six years imprisonment for armed robbery together with a consecutive three year term of imprisonment for using a firearm during the robbery - See paragraphs 28 and 29.

Criminal Law - Topic 5917

Sentence - Firearms - Use of - During commission of offence - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 83 - The Manitoba Court of Appeal affirmed a sentence of the accused to three years imprisonment for using a firearm in the commission of the offence of robbery, to be served consecutively to a six year term of imprisonment for the robbery itself - It was the second or subsequent conviction of the accused for using a firearm during an offence - See paragraphs 24 to 28 and 30.

Cases Noticed:

R. v. Atkinson (1977), 22 N.R. 523; 37 C.C.C.(2d) 416, consd. [paras. 21, 29].

Kienapple v. R. (1974), 26 C.R.N.S. 1; 1 N.R. 322; 44 D.L.R.(3d) 351; 15 C.C.C.(2d) 524; [1975] 1 S.C.R. 729, dist. [para. 25].

R. v. Walsh & Lamont (1905), 8 C.C.C. 101, consd. [para. 29].

R. v. Morgan (1916), 25 C.C.C. 192, consd. [para. 29].

R. v. The Calgary Club (1932), 57 C.C.C. 158, consd. [para. 29].

R. v. Dauphinee (1935), 63 C.C.C. 90, consd. [para. 29].

R. v. Scown, [1945] 1 W.W.R. 686, consd. [para. 29].

R. v. Roy, [1956] O.W.N. 31; 115 C.C.C. 335, consd. [para. 29].

R. v. Papas, [1956] O.W.N. 494, consd. [para. 29].

R. v. Karpuk (1962), 37 C.R. 326, consd. [para. 29].

R. v. Hollman, Hewko & Melnyk, 37 W.W.R.(N.S.) 337, consd. [para. 29].

R. v. Fairbairn, [1966] 2 O.R. 582, consd. [para. 29].

R. v. Siniaski (1968), 63 W.W.R.(N.S.) 52, consd. [para. 29].

R. v. Douglas & Leske (1968), 2 C.R.N.S. 95, consd. [para. 29].

Cooper v. R. (1968), 2 C.R.N.S. 387, affd. [1968] S.C.R. 450, appld. [para. 29].

R. v. Isaacs, [1970] 1 C.C.C. 370, consd. [para. 29].

R. v. Cross (1971), 1 C.C.C.(2d) 337, consd. [para. 29].

Miller v. R. (1973), 22 C.R.N.S. 376, consd. [para. 29].

R. v. Sanver (1973), 11 C.C.C.(2d) 466, consd. [para. 29].

R. v. MacDonald (1975), 18 C.C.C.(2d) 136, consd. [para. 29].

Doyle v. R. (1976), 35 C.R.N.S. 1; 9 N.R. 285; 29 C.C.C.(2d) 177; 68 D.L.R.(3d) 270; 10 Nfld. & P.E.I.R. 45; 17 A.P.R. 45; [1977] 1 S.C.R. 597, dist. [paras. 21, 29].

R. v. MacRitchie, [1976] 3 W.W.R. 661, appld. [para. 29].

R. v. Broder et al. (1977), 32 C.C.C.(2d) 55, consd. [para. 29].

Geszthelyi v. R. (1977), 38 C.R.N.S. 15, consd. [para. 29].

R. v. Gray (1978), 38 C.C.C.(2d) 292, consd. [para. 29].

R. v. Hunter & McInroy, [1978] 6 W.W.R. 88, consd. [para. 29].

R. v. Davies (1979), 16 A.R. 426 (Alta. C.A.), consd. [paras. 21, 29].

R. v. Leske (1967), 60 W.W.R.(N.S.) 760 (Alta. C.A.), consd. [para. 38].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 83 [para. 26]; sect. 484(1), sect. 484(2) [para. 2]; sect. 491 [para. 15].

Counsel:

D.N. Abra, for the Crown;

G.G. Brodsky, for the accused/appellant.

This case was heard on February 5, 1979, at Winnipeg, Manitoba, before FREEDMAN, C.J.M., MONNIN and HALL, JJ.A., of the Manitoba Court of Appeal.

On September 4, 1979, the judgment of the Court of Appeal was delivered and the following opinions were filed:

MONNIN, J.A. - see paragraphs 1 to 29;

HALL, J.A., dissenting - see paragraphs 30 to 42.

FREEDMAN, C.J.M., concurred with MONNIN, J.A.

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  • R. v. Matheson, (1981) 37 N.R. 451 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • June 22, 1981
    ...to the Manitoba Court of Appeal. The Manitoba Court of Appeal dismissed the appeal and affirmed the convictions of the accused - see 1 Man.R.(2d) 111. The accused appealed to the Supreme Court of The Supreme Court of Canada allowed the appeal on a ground not raised in the Manitoba Court of ......
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7 cases
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    • March 10, 2000
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