R. v. Biniaris (J.), (2000) 134 B.C.A.C. 161 (SCC)

• Judge: Lamer, C.J.C., L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday April 13, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 134 B.C.A.C. 161 (SCC);2000 SCC 15;[2000] 1 SCR 381;184 DLR (4th) 193;143 CCC (3d) 1;32 CR (5th) 1;134 BCAC 161;252 NR 204;[2000] CarswellBC 753;JE 2000-838;[2000] SCJ No 16 (QL);[2000] ACS no 16;219 WAC 161;45 WCB (2d) 454

R. v. Biniaris (J.) (2000), 134 B.C.A.C. 161 (SCC);

    219 W.A.C. 161

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2000] B.C.A.C. TBEd. AP.008

Her Majesty The Queen (appellant) v. John Biniaris (respondent) and The Attorney General of Canada, The Attorney General for Ontario, The Attorney General of Quebec, The Criminal Lawyers' Association (Ontario), The Innocence Project, The Association in Defence of the Wrongly Convicted and The Criminal Trial Lawyers Association of Alberta (intervenors)

(26570; 2000 SCC 15)

Indexed As: R. v. Biniaris (J.)

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ.

April 13, 2000.

Summary:

The accused was convicted of second degree murder following a jury trial. The accused appealed.

The British Columbia Court of Appeal, Ryan, J.A., dissenting, in a judgment re­ported 104 B.C.A.C. 203; 170 W.A.C. 203, held that the second degree murder convic­tion was unreasonable and unsupported by the evidence. The court substituted a convic­tion for manslaughter (s. 686(1)(b)(i)) and remitted the matter for sentencing. The Crown appealed.

The Supreme Court of Canada allowed the appeal, set aside the substituted conviction and restored the second degree murder con­viction and the sentence imposed by the trial judge.

Courts - Topic 3111

Supreme Court of Canada - Jurisdiction - Appeals from provincial courts - Criminal cases - Appeal from substituted conviction - The Court of Appeal dismissed the ac­cused's appeal from his second degree murder conviction (Criminal Code, s. 686(1)(b)(i)), but substituted a conviction for manslaughter (s. 686(3)) - At issue was the Crown's right to appeal a substituted conviction - The Supreme Court of Canada stated that "while the language of s. 686(1)(b)(i) and (3) does not contain an explicit direction to a court of appeal to set aside a conviction, when a court of appeal dismisses the accused's appeal from the original conviction by substituting a verdict on another count or part of the indictment, the court of appeal implicitly sets aside the conviction by the trial court and also im­plicitly affirms the new conviction on the included offence. Thus, there are co-exist­ing rights of appeal for both the accused, under s. 691, and the Crown, under s. 693, to this court from a court of appeal order for a substituted verdict." - See paragraphs 15 to 18.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or question of law alone - [See Criminal Law - Topic 9023].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsup­ported by evidence - The Supreme Court of Canada stated that a verdict was not unreasonable or unsupported by the evi­dence merely because the appellate court had a "vague unease, or a lingering or lurking doubt based on its own review of the evidence" - See paragraph 38.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsup­ported by evidence - The accused was convicted of second degree murder for his involvement with another man in the beat­ing death of the innocent victim - The critical issue was intent - The Court of Appeal found the verdict unreasonable and unsupported by the evidence, and substi­tuted a manslaughter conviction - The Supreme Court of Canada restored the murder conviction - The court stated that "the determination of the intent of fore­sight of a person at the time of his partici­pation in a homicide is often a difficult question of fact. It certainly was so in this case where a very young man was involved in a brief, senseless and violent beating which left an innocent man dead. Despite the unusual turn of events at trial, and the fact that many similar incidents in the past have led to convictions for man­slaughter only, the law required this jury to answer this difficult question on the facts of this case, and it did. In my view, the verdict was one that this properly instructed jury, acting judicially, could reasonably have rendered ..." - See para­graphs 43 to 51.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsup­ported by evidence - The Court of Appeal allowed an accused's appeal of his convic­tion for second degree murder on the ground that the verdict was unreasonable and unsupported by the evidence - The court substituted a conviction for man­slaughter - The Supreme Court of Canada held that the Yebes standard of review (i.e., whether the verdict was one that a properly instructed jury (or judge alone), acting judicially, could reasonably have rendered) continued to be the binding test -The court added that "to the extent that it has a subjective component, it is the sub­jective assessment of an assessor with judicial training and experience that must be brought to bear on the exercise of re­viewing the evidence upon which an al­legedly unreasonable conviction rests. That, in turn, requires the reviewing judge to import his or her knowledge of the law and the expertise of the courts, gained through the judicial process over the years, not simply his or her own personal ex­perience and insight. It also requires that the reviewing court articulate as explicitly and as precisely as possible the grounds for its intervention." - See paragraphs 36 to 42.

Criminal Law - Topic 5020

Appeals - Indictable offences - Setting aside verdicts - Verdict unreasonable or unsupported by evidence - [See all Crimi­nal Law - Topic 4865].

Criminal Law - Topic 5057

Appeals - Indictable offences - Substitution of verdict - Substitution of conviction - [See Courts - Topic 3111].

Criminal Law - Topic 9023

Appeals to Supreme Court of Canada - Appeals without leave - Question of law -What constitutes - The Supreme Court of Canada reaffirmed its decision in R. v. Yebes that the reasonableness of a verdict within the meaning of s. 686(1)(a)(i) of the Criminal Code was a question of law giving rise to further appeal to the Supreme Court of Canada - See paragraphs 19 to 27.

Cases Noticed:

R. v. Molodowic (A.J.) (2000), 252 N.R. 250 (S.C.C.), refd to. [para. 1].

R. v. A.G. (2000), 252 N.R. 272 (S.C.C.), refd to. [para. 1].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 1].

R. v. Nantais, [1966] 2 O.R. 246 (C.A.), refd to. [para. 16].

R. v. McGloan, [1976] 2 S.C.R. 842; 7 N.R. 219, refd to. [para. 17].

R. v. Mahoney, [1982] 1 S.C.R. 834; 41 N.R. 582, refd to. [para. 19].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 21].

R. v. Sunbeam Corp. (Canada) Ltd., [1969] S.C.R. 221, refd to. [para. 29].

R. v. Lampard, [1969] S.C.R. 373, refd to. [para. 29].

R. v. Ciglen, [1970] S.C.R. 804, refd to. [para. 32].

R. v. G.B., [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142, refd to. [para. 32].

R. v. D.S.H. and J.D.N., [1994] 2 S.C.R. 392; 168 N.R. 307; 45 B.C.A.C. 241; 72 W.A.C. 241, reving. (1994), 28 B.C.A.C. 129; 47 W.A.C. 129 (C.A.), refd to. [para. 32].

R. v. C.B.B. (1993), 110 Nfld. & P.E.I.R. 59; 346 A.P.R. 59; 84 C.C.C.(3d) 249 (Nfld. C.A.), refd to. [para. 32].

R. v. Schuldt, [1985] 2 S.C.R. 592; 63 N.R. 241; 38 Man.R.(2d) 257, refd to. [para. 33].

R. v. Jensen (C.M.) (1996), 90 O.A.C. 183; 106 C.C.C.(3d) 430 (C.A.), appeal quashed [1997] 1 S.C.R. 304; 209 N.R. 1; 98 O.A.C. 321, refd to. [para. 35].

R. v. Osvath (C.) (1996), 87 O.A.C. 274 (C.A.), appeal quashed [1997] 1 S.C.R. 7; [1997] N.R. Uned. 1, refd to. [para. 35].

R. v. Hamilton, [1997] Q.J. No. 67 (C.A.), appeal quashed [1997] S.C.C.A. No. 105, refd to. [para. 35].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 36].

R. v. Burke (J.W.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [para. 37].

R. v. Reitsma (S.J.), [1998] 1 S.C.R. 769; 226 N.R. 367; 107 B.C.A.C. 161; 174 W.A.C. 161, reving. (1997), 97 B.C.A.C. 303; 157 W.A.C. 303 (C.A.), refd to. [para. 37].

R. v. O'Connor (H.P.) (1998), 105 B.C.A.C. 56; 171 W.A.C. 56; 123 C.C.C.(3d) 487 (C.A.), refd to. [para. 37].

R. v. Keeper (R.T.) (1993), 88 Man.R.(2d) 156; 51 W.A.C. 156 (C.A.), refd to. [para. 41].

R. v. Malcolm (D.) (1993), 63 O.A.C. 188; 81 C.C.C.(3d) 196 (C.A.), refd to. [para. 41].

R. v. T.T. and S.L. (1997), 103 O.A.C. 15; 117 C.C.C.(3d) 481 (C.A.), refd to. [para. 41].

R. v. N.D., [1993] O.J. No. 2139 (C.A.), refd to. [para. 41].

R. v. C.V., [1993] O.J. No. 1512 (C.A.), refd to. [para. 41].

R. v. J.H.H.P.L. (1992), 81 Man.R.(2d) 96; 30 W.A.C. 96; 75 C.C.C.(3d) 165 (C.A.), refd to. [para. 41].

R. v. Vaillancourt (1998), 136 C.C.C.(3d) 530 (Que. C.A.), refd to. [para. 41].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 675(1)(a), sect. 676(1)(a), sect. 686(1), sect. 691(1), sect. 693(1) [para. 11].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Stat­utes (2nd Ed. 1983), p. 87 [para. 21].

Counsel:

William F. Ehrcke, Q.C., and Kate Ker, for the appellant;

Gil D. McKinnon, Q.C., and Peter J. Wilson, for the respondent;

Robert J. Frater and Morris Pistyner, for the intervenor, Attorney General of Canada;

Robert Kelly, for the intervenor, Attorney General for Ontario;

Carole Lebeuf and Maurice Galarneau, for the intervenor, Attorney General of Que­bec;

Frank R. Addario, for the intervenor, Criminal Lawyers' Association (Ontario);

Marlys A. Edwardh, for the intervenor, The Innocence Project;

Melvyn Green, for the intervenor, The Association in Defence of the Wrongly Convicted;

Marvin R. Bloos (written submission only), for the intervenor, Criminal Trial Lawyers Association of Alberta.

Solicitors of Record:

Ministry of the Attorney General, Vancouver, B.C., for the appellant;

Wilson & Buck, Vancouver, B.C., for the respondent;

Attorney General of Canada, Ottawa, Ontario, for the intervenor, Attorney General of Canada;

Ministry of the Attorney General, Toronto, Ontario, for the intervenor, Attorney General for Ontario;

The Attorney General's Prosecutor, Montreal, Quebec, for the intervenor, Attorney General of Quebec;

Gold & Fuerst, Toronto, Ontario, for the intervenor, Criminal Lawyers' As­sociation (Ontario);

Ruby & Edwardh, Toronto, Ontario, for the intervenor, The Innocence Project;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervenor, Association in Defence of the Wrongly Convicted;

Beresh DePoe Cunningham, Edmonton, Alberta, for the intervenor, Criminal Trial Lawyers Association of Alberta.

This appeal was heard on October 5-6, 1999, before Lamer, C.J.C., L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ., of the Supreme Court of Canada.

On April 13, 2000, Arbour, J., delivered the following judgment in both official languages for the Supreme Court of Canada.

Lamer, C.J.C., did not participate in the judgment.