R. v. Eby, (1979) 33 N.S.R.(2d) 80 (CA)

• Judge: Hart, Jones and Macdonald, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 05, 1979
• Jurisdiction: Nova Scotia
• Citations: (1979), 33 N.S.R.(2d) 80 (CA)

R. v. Eby (1979), 33 N.S.R.(2d) 80 (CA);

    57 A.P.R. 80

MLB headnote and full text

R. v. Eby

(S.C.A. No. 00479 and 00411)

Indexed As: R. v. Eby

Nova Scotia Supreme Court

Appeal Division

Hart, Jones and Macdonald, JJ.A.

July 5, 1979.

Summary:

This case arose out of a charge of attempted robbery. The accused was also charged with the use of a firearm to commit an offence. Both charges arose out of the same event. The accused pleaded guilty to the charge of robbery and was sentenced to imprisonment for five years. With respect to the second charge of using a firearm to commit an offence the trial judge acquitted the accused and applied the principle that an accused should not be punished twice for the same matter. The Crown appealed the acquittal to the Nova Scotia Court of Appeal. The accused cross-appealed with respect to the sentence imposed for attempted robbery.

The Nova Scotia Court of Appeal allowed the Crown's appeal with respect to the acquittal of the accused and held that the defence of res judicata was not available to the accused because s. 83 of the Criminal Code clearly showed the intention of parliament to provide for multiple convictions for the same matter (see paragraph 11). The Court of Appeal dismissed the accused's appeal with respect to the sentence on the charge of robbery.

Criminal Law - Topic 82

Res judicata (multiple convictions for the same subject matter precluded) - Bars to raising the defence - The accused was charged with attempted robbery and was also charged with the use of a firearm to commit an offence - Both charges arose out of the same event - The Nova Scotia Court of Appeal held that the defence of res judicata was not available to the accused with respect to the second charge because s. 83 of the Criminal Code clearly showed the intention of Parliament to provide for multiple convictions for the same matter (see paragraph 11).

Criminal Law - Topic 5855

Sentence - Charge of attempted robbery - Adult male with a lengthy criminal record - The Nova Scotia Court of Appeal affirmed a sentence of imprisonment of five years (see paragraph 13).

Criminal Law - Topic 5871

Sentence - Charge of use of a firearm to commit an offence - Adult male with a lengthy criminal record - The Nova Scotia Court of Appeal imposed a sentence of imprisonment of three years (see paragraphs 15 and 16).

Cases Noticed:

R. v. Quon (1948), 92 C.C.C. 1, refd to. [para. 5].

Kienapple v. The Queen, 1 N.R. 322, [1975] 1 S.C.R. 729, dist. [para. 5].

R. v. Loyer and Bloin (1978), 21 N.R. 181; 40 C.C.C.(2d) 291, refd to. [para. 5].

R. v. American News Co. Ltd. (1957), 25 C.R. 374, refd to. [para. 9].

Kienapple v. The Queen, 1 N.R. 322; 26 C.R.N.S. 1, dist. [para. 11].

R. v. LeRoy (1978), 20 N.S.R.(2d) 469; 27 A.P.R. 469, refd to. [para. 12].

R. v. Gee (1973), 14 C.C.C.(2d) 538, refd to. [para. 12].

R. v. Hingley (1977), 19 N.S.R.(2d) 541; 24 A.P.R. 541, refd to. [para. 15].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 83(2) [para. 6], sect. 583(1) [para. 12].

Counsel:

Robert C. Hagell, for the Crown, appellant and respondent on cross-appeal;

J. Walter Thompson, for the accused, respondent and appellant on cross-appeal.

This appeal was heard by HART, JONES and MACDONALD, JJ.A., of the Appeal Division of the Nova Scotia Supreme Court, at Halifax, Nova Scotia, on June 8, 1979.

The judgment of the Appeal Division was delivered by JONES, J.A., on July 5, 1979.