R. v. Doliente (I.B.), (1996) 184 A.R. 131 (CA)

• Judge: Harradence, Côté and Picard, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 07, 1996
• Citations: (1996), 184 A.R. 131 (CA)

R. v. Doliente (I.B.) (1996), 184 A.R. 131 (CA);

    122 W.A.C. 131

MLB headnote and full text

Her Majesty The Queen (respondent/appellant) v. Ian Bernard Doliente (appellant/respondent)

(Appeal Nos. 95-15748; 95-15792)

Indexed As: R. v. Doliente (I.B.)

Alberta Court of Appeal

Harradence, Côté and Picard, JJ.A.

June 7, 1996.

Summary:

The accused was charged with robbery and aggravated assault, contrary to ss. 344 and 268 of the Criminal Code. The trial judge convicted the accused of robbery, but entered a conditional stay on the aggravated assault charge, because it was an included offence of robbery. The accused appealed the robbery conviction, claiming that the trial judge erred in failing to find a search war­rant invalid and in failing to appreciate discrepancies and weaknesses in the identifi­cation evidence. The Crown cross-appealed, submitting that the trial judge erred in failing to convict the accused of aggravated assault by misdirecting himself on the Kienapple principle.

The Alberta Court of Appeal, Harradence, J.A., dissenting in part, dismissed the appeal and allowed the cross-appeal. The court affirmed the robbery conviction, set aside the conditional stay and substituted a conviction for aggravated assault.

Criminal Law - Topic 80

Res judicata (multiple convictions for same subject matter precluded) - Circumstances when defence may be raised - The accused, using a gun, forced a woman to give up her wallet and car keys - He forced her to kneel on the ground, then gratuitously stabbed her four times - He then drove off in her car - The trial judge convicted the accused of robbery, but conditionally stayed an aggravated assault charge - The Alberta Court of Appeal affirmed the robbery conviction and entered a conviction for aggravated assault - Kienapple did not apply - The stabbing was a separate, later assault - Each offence had a separate mens rea and actus reus - It was irrelevant whether or not the wording of the aggravated assault charge was an included offence to the wording of the robbery charge - The facts, not the wording, governed - Where the robbery and aggravated assault were separate acts, two convictions were permitted - Harra­dence, J.A., dissenting, held that factually there was one robbery, of which the stab­bing was part, and not two separate inci­dents - Accordingly, a conviction for the included offence of aggravated assault was precluded - See paragraphs 84 to 115.

Criminal Law - Topic 3097

Issue of search warrants - Contents of information or application for issue of - An accused convicted of robbery appealed on the ground that the search warrant relied on by police was illegal, because there were not sufficient grounds to justify its issue - The authoriz­ing justice had an anonymous tip, which was corroborated by information prior to the application for the warrant - There was also evidence that the victim identified the accused out of a photo line-up and that a person matching the accused's de­scription was seen in the area on a video surveillance tape - The Alberta Court of Appeal held that notwith­standing some evidentiary problems com­plained of by the accused, the information before the issuing justice was sufficient to warrant granting a search warrant - See paragraphs 15 to 20.

Criminal Law - Topic 4452

Procedure - Verdicts - Included offences - Acts severable from offence charged - [See Criminal Law - Topic 80 ].

Criminal Law - Topic 4465

Procedure - Verdicts - Included offences - Inclusion in robbery - [See Criminal Law - Topic 80 ].

Criminal Law - Topic 5244

Evidence and witnesses - Identification - By personal characteristics - An accused convicted of robbery appealed on the ground that the trial judge erred in accept­ing the identification evidence of the vic­tim, given discrepancies in her description of her attacker - The victim stated that the attacker had a tattoo and no accent, when in fact the accused had no tattoo and an accent - However, the victim did identify the accused in a photo line-up and pointed out the differences in his present appear­ance and his appearance when the picture was taken - The trial judge stated that the discrepancies did not erode the quality of the victim's identification - The Alberta Court of Appeal dismissed the accused's appeal - The trial judge adequately dealt with any problems regarding the identifi­cation issue and it was not unreasonable for him to rely on the identification evi­dence - See paragraphs 21 to 23.

Cases Noticed:

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161, refd to. [para. 15].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1; 84 C.C.C.(3d) 173, refd to. [para. 17].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193; 73 C.R.(3d) 129; 45 C.R.R. 49, refd to. [para. 18].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104; 12 Alta. L.R.(3d) 305, refd to. [para. 18].

Chartier v. Quebec (Attorney General) (1979), 27 N.R. 1; 48 C.C.C.(2d) 34 (S.C.C.), refd to. [para. 22].

R. v. Maglis (1991), 117 A.R. 185; 2 W.A.C. 185 (C.A.), refd to. [para. 22].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417; 59 C.R.(3d) 108; 17 B.C.L.R.(2d) 1; [1987] 6 W.W.R. 97, refd to. [para. 24].

R. v. Lafrance, [1975] 2 S.C.R. 201, refd to. [para. 31].

R. v. Manuel (1960), 128 C.C.C. 383 (B.C.C.A.), refd to. [para. 31].

R. v. Rinnie, [1970] 3 C.C.C. 218 (Alta. C.A.), refd to. [para. 31].

R. v. McDowell, [1977] 1 W.W.R. 97; 1 A.R. 579 (C.A.), refd to. [para. 31].

R. v. Luckett, [1980] 1 S.C.R. 1140; 30 N.R. 344; 50 C.C.C.(2d) 489, refd to. [para. 32].

Simpson v. R. (1981), 20 C.R.(3d) 27 (Ont. C.A.), refd to. [para. 35].

R. v. Lucas (M.) (1987), 10 Q.A.C. 47; 34 C.C.C.(3d) 28 (C.A.), refd to. [para. 36].

R. v. Horsefall (1990), 61 C.C.C.(3d) 245 (B.C.C.A.), refd to. [para. 39].

R. v. K.D.B.R. (1992), 108 N.S.R.(2d) 268; 294 A.P.R. 268 (C.A.), refd to. [para. 41].

R. v. MacPhee (1978), 29 N.S.R.(2d) 492; 45 A.P.R. 492; 45 C.C.C.(2d) 89 (C.A.), refd to. [para. 44].

R. v. Godin (J.A.), [1994] 2 S.C.R. 484; 168 N.R. 193; 147 N.B.R.(2d) 321; 375 A.P.R. 321; 89 C.C.C.(3d) 574, refd to. [para. 45].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524, refd to. [para. 47].

R. v. Fieldhouse (1956), 115 C.C.C. 358 (Man. C.A.), dist. [paras. 50, 112].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93; 30 C.C.C.(3d) 35, refd to. [para. 53].

R. v. Plank (1986), 15 O.A.C. 21; 28 C.C.C.(3d) 386 (C.A.), refd to. [para. 55].

R. v. Downer (1978), 40 C.C.C.(2d) 532 (Ont. C.A.), dist. [paras. 61, 114].

R. v. Lieberman, [1970] 5 C.C.C. 300 (Ont. C.A.), refd to. [para. 61].

Richardson v. Mellish (1824), 2 Bing. 229; 130 E.R. 294 (C.P.), refd to. [para. 74].

Fender v. Mildmay, [1938] A.C. 1 (H.L.), refd to. [para. 75].

R. v. Crabe (L.C.) (1993), 25 B.C.A.C. 42; 43 W.A.C. 42; 79 C.C.C.(3d) 323 (C.A.), refd to. [para. 78].

R. v. Gee (1973), 14 C.C.C.(2d) 538 (Ont. C.A.), refd to. [para. 100].

R. v. Schwartz (1941), 75 C.C.C. 203 (N.S.C.A.), refd to. [para. 100].

R. v. Pedersen, [1935] 2 W.W.R. 207 (Alta. C.A.), refd to. [para. 100].

R. v. Loyer, [1978] 2 S.C.R. 631; 21 N.R. 181; 40 C.C.C.(2d) 291, refd to. [para. 115].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 268(1) [para. 43]; sect. 343 [para. 29]; sect. 662(1) [para. 30].

Authors and Works Noticed:

Friedland, Double Jeopardy (1969), pp. 198 to 200 [para. 105].

Counsel:

B.Q.H. Der, for Ian Bernard Doliente;

G. Tomljanovic, for the Crown.

This appeal and cross-appeal were heard before Harradence, Côté and Picard, JJ.A., of the Alberta Court of Appeal.

On June 7, 1996, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Harradence, J.A., dissenting in part - see paragraphs 1 to 83;

Côté, J.A. (Picard, J.A., concurring) - see paragraphs 84 to 116.