R. v. Rees (T.), (1994) 72 O.A.C. 199 (CA)

• Judge: Finlayson, Carthy and Austin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 16, 1994
• Jurisdiction: Ontario
• Citations: (1994), 72 O.A.C. 199 (CA)

R. v. Rees (T.) (1994), 72 O.A.C. 199 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Timothy Rees (applicant/appellant)

(C7950)

Indexed As: R. v. Rees (T.)

Ontario Court of Appeal

Finlayson, Carthy and Austin, JJ.A.

June 16, 1994.

Summary:

The accused was convicted of murder. He appealed, arguing, inter alia, that an inculpatory statement given to police should not have been admitted because his right to counsel was violated (Charter, s. 10(b)).

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 4604

Right to counsel - Denial of - What con­stitutes - Police detained an accused re­specting an aggravated assault - Three interviews were conducted, two respecting assaults and one respecting a child's mur­der - He was advised of his counsel rights before the assault interviews - During the murder interview, he mentioned choking the child and was immediately cautioned again - He then signed an inculpatory statement with­out contacting counsel - On appeal from conviction, he alleged a s. 10(b) Charter violation - The Ontario Court of Appeal held that the accused could not raise the issue for the first time on appeal where the issue could have been raised at trial, but counsel chose not to do so, and the neces­sary evidence for a Char­ter ruling on appeal was incomplete - See paragraphs 8 to 29, 43 to 57.

Civil Rights - Topic 4609.1

Right to counsel - Duty of police investi­gators - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 4392

Procedure - Jury charge - Directions re inferences of guilt - A murder suspect attempted suicide - He left a suicide note wherein he said he was not killing himself because of the murder although some of the lines of the note were crossed out - The trial judge outlined for the jury the positions of the Crown and defence re­specting the note, but did not charge the jury on consciousness of guilt - Defence counsel did not object - On appeal, the accused argued that the failure to charge on con­sciousness of guilt was a nondirection amounting to misdirection - The Ontario Court of Appeal rejected the accused's argument - See paragraphs 30 to 38.

Cases Noticed:

R. v. Parks (1988), 33 C.R.R. 1 (Ont. H.C.), refd to. [para. 16].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124; 74 C.R.(3d) 129; 53 C.C.C.(3d) 330; [1990] 2 W.W.R. 220; 71 Alta. L.R.(2d) 145, refd to. [para. 16].

R. v. Evans, [1991] 1 S.C.R. 869; 124 N.R. 278; 63 C.C.C.(3d) 289; 4 C.R.(4th) 144; 3 C.R.R. 315, refd to. [paras. 20, 43].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35; 50 C.C.C.(3d) 1; 70 C.R.(3d) 97; 47 C.R.R. 171, refd to. [para. 20].

R. v. Kutynec (1992), 52 O.A.C. 59; 70 C.C.C.(3d) 289 (C.A.), refd to. [para. 24].

R. v. Ryan (1992), 54 O.A.C. 379; 12 C.R.(4th) 173 (C.A.), refd to. [para. 25].

R. v. Arbour (1990), 4 C.R.R.(2d) 369 (Ont. C.A.), refd to. [paras. 26, 47].

R. v. Brown (A.R.R.) (1993), 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163; 83 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 27].

R. v. Fertal (G.D.) (1993), 145 A.R. 225; 85 C.C.C.(3d) 411 (C.A.), refd to. [para. 28].

R. v. Lomage (1991), 44 O.A.C. 131 (C.A.), refd to. [para. 29].

R. v. Arcangioli, [1994] 1 S.C.R. 129; 162 N.R. 280; ?? O.A.C. ???, refd to. [para. 35].

R. v. Moran (1987), 21 O.A.C. 257; 36 C.C.C.(3d) 225 (C.A.), refd to. [para. 37].

R. v. Minhas (1986), 16 O.A.C. 42; 29 C.C.C.(3d) 193 (C.A.), refd to. [para. 37].

R. v. Shortreed (1990), 37 O.A.C. 144; 54 C.C.C.(3d) 292 (C.A.), refd to. [para. 38].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [para. 1]; sect. 24(2) [para. 43].

Counsel:

Clayton C. Ruby, and John Norris, for the appellant;

Ian R. Smith, for the respondent.

This appeal was heard on May 2 and 3, 1994, before Finlayson, Carthy and Austin, JJ.A., of the Ontario Court of Appeal. The decision of the court was released on June 16, 1994, including the following opinions:

Finlayson, J.A. - see paragraphs 1 to 42;

Carthy, J.A., (Austin, J.A., concurring) - see paragraphs 43 to 57.