R. v. Bennett (K.J.), (1985) 56 Nfld. & P.E.I.R. 31 (NFCA)

• Judge: Mifflin, C.J.N, Gushue and Mahoney, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: September 12, 1985
• Jurisdiction: Newfoundland and Labrador
• Citations: (1985), 56 Nfld. & P.E.I.R. 31 (NFCA)

R. v. Bennett (K.J.) (1985), 56 Nfld. & P.E.I.R. 31 (NFCA);

    168 A.P.R. 31

MLB headnote and full text

R. v. Bennett

(1982 No. 94)

Indexed As: R. v. Bennett (K.J.)

Newfoundland Supreme Court

Court of Appeal

Mifflin, C.J.N, Gushue and Mahoney, JJ.A.

September 12, 1985.

Summary:

An accused was convicted of attempted murder when he shot a taxi driver. At a later date, arising from the same incident, he was convicted of using a firearm in the commission of an offence contrary to s. 83(1) of the Criminal Code of Canada. The accused appealed his conviction and sentence under s. 83(1).

The Newfoundland Court of Appeal allowed the appeal. The court held that the two offences for which the accused was convicted were one and the same and it was contrary to s. 11(h) of the Canadian Charter of Rights and Freedoms for an accused, if finally found guilty of an offence, to be tried or punished for it again.

Criminal Law - Topic 80

General principles - Res judicata - Multiple convictions for same subject matter precluded - Circumstances when defence may be raised - An accused was convicted of attempted murder when he shot a taxi driver - He was subsequently convicted of using a firearm in the commission of an offence - The Newfoundland Court of Appeal set aside the accused's conviction under s. 83 (1) of the Criminal Code - The court held that the offences for which the accused was convicted were one and the same and that it was contrary to s. 11(h) of the Charter of Rights and Freedoms to punish a person twice for the same offence - See paragraphs 3 to 14.

Criminal Law - Topic 1438

Offences against person and reputation - Firearms - Use of during offence - An accused was convicted of attempted murder when he shot a taxi driver - He was subsequently convicted of using a firearm in the commission of an offence - The Newfoundland Court of Appeal set aside the accused's conviction under s. 83(1) of the Criminal Code - The court held that where an indictment charges attempted murder by shooting, the use of the firearm constitutes the offence of attempted murder and without the use of the firearm there would be no offence; therefore, there can be no additional charge of using a firearm during the commission of an offence.

Cases Noticed:

R. v. Nicholson, [1981] 2 S.C.R. 600; 39 N.R. 611; 13 Man.R.(2d) 91; [1982] 1 W.W.R. 385; 64 C.C.C.(2d) 116; 24 C.R.(3d) 284, refd to. [para. 4].

R. v. McGuigan, [1982] 1 S.C.R. 284; 40 N.R. 499; 66 C.C.C.(2d) 97; 26 C.R.(3d) 289 [para. 7].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524, appld. [para. 7].

R. v. Langevin (1979), 47 C.C.C.(2d) 138; 10 C.R.(3d) 193, appld. [para. 7].

R. v. Krug (1982), 7 C.C.C.(3d) 324, rev'd in part; 62 N.R. 263 (S.C.C.), dist. [para. 11].

R. v. Quon, [1948] S.C.R. 508, consd. [para. 26].

R. v. Pineault; R. v. Berube (1979), 12 C.R.(3d) 129, consd. [para. 33].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 11(h), sect. 11(i).

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 83(1).

Counsel:

James Smyth, for the appellant;

W. Michael Roche, for the respondent.

This case was heard on November 27, 1984, before Mifflin, C.J.N., Gushue and Mahoney, JJ.A., of the Newfoundland Supreme Court, Court of Appeal.

The judgment of the Court of Appeal was delivered on September 12, 1985, and the following opinions were filed:

Gushue, J.A. (Mifflin, C.J.N., concurring) - See paragraphs 1 to 7;

Mahoney, J.A., dissenting - See paragraphs 18 to 46.