R. v. Augustus, Rivett and Sartor, (1977) 5 A.R. 499 (CA)

• Judge: CLEMENT, J.A., concurred with LAYCRAFT, J.
• Court: Court of Appeal (Alberta)
• Case Date: August 05, 1977
• Citations: (1977), 5 A.R. 499 (CA)

R. v. Augustus (1977), 5 A.R. 499 (CA)

MLB headnote and full text

R. v. Augustus, Rivett and Sartor

Indexed As: R. v. Augustus, Rivett and Sartor

Alberta Supreme Court

Appellate Division

Clement, Moir, JJ.A. and Laycraft, J. (ad hoc)

August 5, 1977.

Summary:

This case arose out of a charge of murder against the three accused. The accused planned to rob a service station and, if necessary, to knock out the attendant in doing so. During the course of the robbery one of the accused stabbed and killed the attendant. The three accused were charged with murder. The accused were tried and convicted before a judge and jury. The accused appealed on the ground of various misdirections by the trial judge in his charge to the jury.

The Alberta Court of Appeal dismissed the appeal and affirmed the convictions of the accused. The Court of Appeal held that, although the trial judge made errors in his instructions to the jury, no miscarriage of justice resulted - see paragraphs 38 to 93.

Moir, J.A., dissenting, would have ordered a new trial, because the errors of the trial judge in instructing the jury on the application of s. 213 of the Criminal Code deprived the accomplices of the murderer their right to have their defences adequately put to the jury - see paragraphs 8 to 23.

Criminal Law - Topic 38

General principles - Mens rea or intention - Lack of understanding or capacity caused by intoxication - The Alberta Court of Appeal stated that drunkenness induced after the intention to commit a crime has been formed cannot found a defence of drunkenness reducing the accused's capacity to form the intention to commit the crime - See paragraphs 2 to 7.

Criminal Law - Topic 99

General principles - Defence of insanity - Meaning of the word "wrong" in s. 16(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - Charge of murder - The Alberta Court of Appeal held that "wrong" means criminally as opposed to morally wrong - See paragraphs 76 to 78.

Criminal Law - Topic 101

General principles - Defence of insanity - Meaning of words "nature and quality" in s. 16(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - Charge of murder - The Alberta Court of Appeal held that the words "nature and quality" in s. 16(2) refer to the physical characteristics of the act - See paragraphs 76 to 78.

Criminal Law - Topic 1271

Murder during other offences - General principles - Bodily harm committed to facilitate offence - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 213(a) - The Alberta Court of Appeal held that, if bodily harm is intended and results in death during the commission of an offence, it makes no difference that the bodily harm inflicted is different from that intended - See paragraphs 82 to 92.

Criminal Law - Topic 1272

Murder during other offences - Elements of proof - Intention to commit other offence - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 213 - The Alberta Court of Appeal held that in proving murder during the commission of another offence under s. 213 the intention of the accused to commit the other offence must be proved - See paragraphs 7 and 63 to 66.

Criminal Law - Topic 1342

Offences against the person - Causing bodily harm - What constitutes bodily harm - The Alberta Court of Appeal held that "knocking out" a person constitutes bodily harm - See paragraph 83.

Criminal Law - Topic 2742

Parties to offences - Necessary intention or knowledge - Criminal Code of Canada, R.S.C. 1970, c. C-34, ss. 21(2), 213(a),(d) - The three accused planned to rob a service station and, if necessary, to knock out the attendant in doing so - During the robbery one of the accused stabbed and killed the attendant - The accused were charged with murder - The Alberta Court of Appeal held that for the two accomplices to be convicted as parties to murder under s. 213(a) the intention of each to commit robbery and bodily harm during the robbery would have to be proved - The Court of Appeal held that for the two accomplices to be convicted as parties to murder under s. 213(d) the intent of each to commit robbery and their knowledge that the murderer was armed with a knife would have to be proved - See paragraphs 8 to 18.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscarriage of justice - Where jury charge incomplete - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 613(1)(b)(iii) - The three accused planned to rob a service station and, if necessary, to knock out the attendant in doing so - During the robbery one of the accused stabbed and killed the attendant - The accused were charged with murder - The trial judge failed to instruct the jury that the intention of the three accused to commit robbery must be proved - The trial judge also failed to adequately instruct the jury on the application of s. 213(d) to the two accomplices, which clause established the offence of murder for killing occurring in the course of the commission of an offence where the offender is armed - The Alberta Court of Appeal held that no miscarriage of justice resulted from the misdirections by the trial judge and dismissed the appeal of the accused pursuant to s. 613(1)(b)(iii) - The Court of Appeal held that the evidence of the intention of the accused to commit the robbery was overwhelming and no jury properly instructed could have failed to find intention - The Court of Appeal held that, since the three accused planned bodily harm to the victim within the meaning of s. 213(a), there was evidence for conviction under s. 213(a) and no prejudice resulted from misdirection respecting s. 213(d) - See paragraphs 63 to 66 and 19 to 23.

Evidence - Topic 7010

Opinion evidence - Expert evidence - Admissibility of information on which opinion based - The Alberta Court of Appeal held that hearsay information which an expert uses to prepare his opinion is admissible to demonstrate the basis of his opinion, but not to prove the truth of the information - See paragraph 25.

Words and Phrases

Nature and quality - The Alberta Court of Appeal discussed the meaning of the words "nature and quality" as found in s. 16(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - See paragraphs 76 to 78.

Words and Phrases

Wrong - The Alberta Court of Appeal discussed the meaning of the word "wrong" as found in s. 16(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - See paragraphs 76 to 78.

Cases Noticed:

R. v. George (1960), 128 C.C.C. 281, appld. [para. 2].

Attorney General for Northern Ireland v. Gallagher, [1963] A.C. 349, appld. [para. 4].

Director of Public Prosecution v. Majewski, [1976] 2 All E.R. 142, refd to. [para. 6].

R. v. Kireychuk, [1974] 6 W.W.R. 556, refd to. [para. 6].

Leary v. The Queen (1977), 13 N.R. 592, refd to. [para. 6].

R. v. Caouette (1973), 9 C.C.C. 449, refd to. [para. 16].

R. v. Riezebos (1976), 26 C.C.C. 1, refd to. [para. 17].

R. v. King, Gallipeau and Jariett (1975), 18 C.C.C.(2d) 193, refd to. [para. 19].

Henderson v. The King, [1948] S.C.R. 226, refd to. [para. 22, 36].

MacDonald v. The Queen (1977), 14 N.R. 421, refd to. [para. 30].

Colpitts v. The Queen, [1966] 1 C.C.C. 146, consd. [para. 32].

R. v. Smith, [1975] 5 W.W.R. 456, refd to. [para. 33].

R. v. De Tonnancourt (1956), 18 W.W.R.(N.S.) 337, refd to. [para. 34].

R. v. Morris (1976), 29 C.C.C.(2d) 540, refd to. [para. 34].

R. v. Dinniel (1909), 3 Cr. A.R. 77, refd to. [para. 35].

Veilleux and O'Neil v. The Queen (1973), 23 C.R.N.S. 243, refd to. [para. 36].

R. v. Gorman (1973), 9 C.C.C.(2d) 318, appld. [para. 63].

R. v. Wilson (1973), 6 N.S.R.(2d) 395; 14 C.C.C.(2d) 258, appld. [para. 64].

R. v. Phillion (1977), 14 N.R. 371, appld. [para. 75].

Schwartz v. The Queen (1976), 8 N.R. 585; 29 C.C.C.(2d) 1, appld. [para. 77].

R. v. King, Gallipeau and Jariett (1974), 18 C.C.C. 193 (Ont. C.A.), appld. [para. 82].

R. v. Tresegne (1926), 58 O.L.R. 634; 45 C.C.C. 270, appld. [para. 83].

Cole v. Turner (1704), 6 Mod. Rep. 149, consd. [para. 84].

Director of Public Prosecutions v. Smith, [1960] 3 All E.R. 161, consd. [para. 85].

R. v. Trinneer, [1970] S.C.R. 638; 72 W.W.R.(N.S.) 677, dist. [para. 87].

R. v. Puffer, McFall and Kizyma, [1976] 6 W.W.R. 239, folld. [para. 90].

Lajoie v. The Queen, [1974] S.C.R. 399; 10 C.C.C.(2d) 313, appld. [para. 91].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 16 [para. 76]; sect. 21(2) [paras. 12, 61]; sect. 212(a) [para. 14]; sect. 213 [para. 50]; sect. 613(1)(b)(iii) [para. 66].

Counsel:

P.S. Chrumka, Q.C., for the Crown;

A.G. Park, for the appellant Augustus;

L.W. Scott, for the appellant Rivett;

A.W. MacDonald, Jr., for the appellant Sartor.

This case was heard before CLEMENT, MOIR, JJ.A., and LAYCRAFT, J. (ad hoc), of the Alberta Supreme Court, Appellate Division.

On August 5, 1977, the judgment of the Appellate Division was delivered and the following opinions were filed:

MOIR, J.A., dissenting - see paragraphs 1 to 37

LAYCRAFT, J. (ad hoc) - see paragraphs 38 to 93.

CLEMENT, J.A., concurred with LAYCRAFT, J.