R. v. Dunlop and Sylvester, (1979) 27 N.R. 153 (SCC)

• Judge: Laskin, C.J.C., Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday May 31, 1979
• Jurisdiction: Canada (Federal)
• Citations: (1979), 27 N.R. 153 (SCC);[1979] SCJ No 75 (QL);1979 CanLII 20 (SCC);27 NR 153;99 DLR (3d) 301;[1979] 2 SCR 881;47 CCC (2d) 93;[1979] 4 WWR 599;12 CR (3d) 339;3 WCB 339;[1979] CarswellMan 158;AZ-79111127

R. v. Dunlop (1979), 27 N.R. 153 (SCC)

MLB headnote and full text

R. v. Dunlop and Sylvester

Indexed As: R. v. Dunlop and Sylvester

Supreme Court of Canada

Laskin, C.J.C., Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.

May 31, 1979.

Summary:

This case arose out of a charge of rape against the accused. The complainant girl was raped by 18 men and identified the two accused as two of her assailants. The accused were twice tried and convicted on the charge by a judge and jury. On appeal from the second conviction the Manitoba Court of Appeal found that the trial judge had erred in his charge to the jury, but dismissed the appeal on the ground that there had been no miscarriage of justice. The accused appealed. The Supreme Court of Canada allowed the appeal and acquitted the accused. The Supreme Court of Canada held that the trial judge erred in instructing the jury on parties to offences under s. 21 of the Criminal Code of Canada, R.S.C. 1970, c. C-34, where there was no evidence that the accused aided or abetted the offence and where the only issue was whether the accused actually raped the complainant or not. The Supreme Court of Canada substituted a verdict of acquittal, where it would be unfair to subject the accused to a third trial. Martland, J., dissenting with Ritchie and Pigeon, JJ., concurring, would have dismissed the appeal. Martland, J., was of the opinion that the trial judge was not in error in instructing the jury on parties to offences, where there was evidence, if believed, that the accused aided and abetted the offence.

Courts - Topic 3109

Supreme Court of Canada - Jurisdiction of Supreme Court respecting criminal appeals from provincial courts - Appeal based on a dissent on a question of law in court of appeal - Criminal Code of Canada, R.S.C. 1970, c. P-34, s. 618(1) - The Supreme Court of Canada held that the dissent referred to in s. 618(1) need only be specified in the judge's reasons for judgment - The Supreme Court of Canada held that it had jurisdiction to hear and appeal where the formal judgment did not specify the grounds for dissent - See paragraphs 9, 36, 40.

Courts - Topic 3109

Supreme Court of Canada - Jurisdiction of Supreme Court respecting criminal appeals from provincial courts - Appeal based on a dissent on a question of law in court of appeal - Criminal Code of Canada, R.S.C. 1970, c. P-34, s. 618(1) - The Supreme Court of Canada held that the question of whether there was sufficient evidence to go to the jury (not whether there was sufficient evidence on which to base a verdict) was a question of law within the meaning of s. 618(1) - See paragraphs 10, 45 - A dissenting justice of the Supreme Court of Canada stated that whether there has been a miscarriage of justice within the meaning of s. 613(1)(b)(iii) was not a question of law within the meaning of s. 618(1) - See paragraphs 34, 41 to 42.

Criminal Law - Topic 2742

Parties to offences - Aiding and abetting - Necessary intent or knowledge - Criminal Code of Canada, R.S.C. 1970, c. C- 34, s. 21(2) - The Supreme Court of Canada held that, where there was no evidence of any common intention of the accused with those involved in a gang rape to commit rape, the trial judge was in error in instructing the jury on parties to offences under s. 21(2) - See paragraph 8.

Criminal Law - Topic 2744

Parties to offences - Aiding and abetting - What constitutes - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 21 - The Supreme Court of Canada set out the requirements for proving aiding and abetting - The Supreme Court of Canada held that the mere presence of the accused during the commission of a crime by another did not make the accused a party to the crime - See paragraphs 11 to 28.

Criminal Law - Topic 2759

Parties to offences - Aiding and abetting - Jury charge - Criminal code of Canada, R.S.C. 1970, c. C-34, s. 21 - The two accused were charged with rape after a girl, who had been raped by 18 men, identified them as two of the rapists - The accused admitted being nearby, but denied raping the girl - Apparently because the jury might believe the evidence of the accused the trial judge instructed the jury on parties to offences under s. 21 - The Supreme Court of Canada set aside the conviction of the accused and acquitted the accused on the ground that there was no evidence that the accused aided or abetted the offence under s. 21 and that the trial judge erred in instructing the jury on the issue - See paragraphs 9 to 24.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscarriage of justice - Where jury charge in error - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 613(1)(b)(iii) - The two accused were charged with rape after a girl, who had been raped by 18 men, identified them as two of the rapists - The accused admitted being nearby, but denied raping the girl - Apparently because the jury might believe the evidence of the accused the trial judge instructed the jury on parties to offences under s. 21 - The Supreme Court of Canada set aside the conviction of the accused and acquitted the accused on the ground that there was no evidence that the accused aided or abetted the offence under s. 21 and that the trial judge erred in instructing the jury on the issue - The Supreme Court of Canada refused to apply s. 613(1)(b)(iii), because it was impossible to say that the jury would still have convicted had the mistaken direction not occurred - See paragraphs 29 to 31 and 37.

Criminal Law - Topic 5058

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscarriage of justice - Substitution of verdict - Acquittal - The two accused were twice tried and convicted on a rape charge before a judge and jury - On appeal to the Supreme Court of Canada from the second conviction the Supreme Court of Canada quashed the conviction on the ground of error by the trial judge in his charge to the jury - The Supreme Court of Canada substituted a verdict of acquittal, where it would be unfair to subject the accused to a third trial for the offence - See paragraphs 29 to 31.

Cases Noticed:

Roy v. The King, [1938] S.C.R. 32, appld. [para. 9].

Savard and Lizotte v. The King, [1946] S.C.R. 20, appld. [para. 9].

R. v. Warner, [1961] S.C.R. 144, dist. [para. 10].

R. v. Decary, [1942] S.C.R. 80, appld. [para. 10].

Calder v. The Queen, [1960] S.C.R. 892, appld. [para. 10].

R. v. Coney (1882), 8 Q.B. 534, appld. [para. 13].

Preston v. R., [1949] S.C.R. 156, appld. [paras. 14, 48].

R. v. Dick (1947), 2 C.R. 417 (Ont. C.A.), appld. [para. 15].

R. v. Hoggan (1965), 47 C.R. 256 (Alta. C.A.), appld. [para. 16].

R. v. Salajko, [1970] 1 C.C.C. 352 (Ont. C.A.), appld. [para. 17].

R. v. Black (1970), 10 C.R.N.S. 17, consd. [para. 18].

R. v. Clarkson, [1971] 3 All E.R. 344, appld. [para. 18].

D.P.P. v. Maxwell, [1978] 3 All E.R. 1140 (H.L.), appld. [para. 20].

R. v. Warkentin et al., 9 N.R. 301; [1977] 2 S.C.R. 355, appld. [para. 36].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 21, sect. 606 [para. 41]; sect. 613(1)(b)(iii) [paras. 30, 34, 37, 42]; sect. 618(1)(a) [paras. 10, 40].

Authors and Works Noticed:

Foster's Crown Law, p. 350 [para. 12].

Smith and Hogan, Criminal Law (4th Ed. 1978), p. 117 [para. 27].

Counsel:

J.J. Gindin, for the appellants;

J.G. Dangerfield, for the respondent.

This case was heard on December 6, 1978, at Ottawa, Ontario, before LASKIN, C.J.C., MARTLAND, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ, ESTEY and PRATTE, JJ., of the Supreme Court of Canada.

On May 31, 1979, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

DICKSON, J. - see paragraphs 1 to 31;

PRATTE, J. - see paragraphs 32 to 38;

MARTLAND, J., dissenting - see paragraphs 39 to 54.

LASKIN, C.J.C., SPENCE and ESTEY, JJ., concurred with DICKSON, J.

BEETZ, J., concurred with PRATTE, J.

RITCHIE and PIGEON, JJ., concurred with MARTLAND, J.