R. v. Gamble and Nichols, (1978) 9 A.R. 179 (CA)

• Judge: Sinclair, Moir and Haddad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 06, 1978
• Citations: (1978), 9 A.R. 179 (CA)

R. v. Gamble (1978), 9 A.R. 179 (CA)

MLB headnote and full text

R. v. Gamble and Nichols

Indexed As: R. v. Gamble and Nichols

Alberta Supreme Court

Appellate Division

Sinclair, Moir and Haddad, JJ.A.

April 6, 1978.

Summary:

This case arose out of charges of murder against the two accused. After robbing a bank the male accused and three companions, including the female accused, fled in a car, followed by a person the male accused assumed was a policeman in plain clothes and an unmarked car. The accused shot the policeman, when the policeman tried to arrest him with a gun. The two accused then fled and took three hostages before they were cornered in a house. The male accused was charged with the murder of the policeman and the female accused with being a party to the murder. The accused were convicted by a judge and jury. The accused appealed from their convictions.

The Alberta Court of Appeal dismissed the appeal and affirmed the convictions of the accused.

Criminal Law - Topic 29

Prosecution of crime - When prosecution commences - After the accused were charged with murder and committed for trial after their preliminary hearings, but before their trial, the Criminal Law Amendment Act came into force changing the offence charged - The Amendment Act provided that the amendment was not to apply to "proceedings commenced" before the amendment came into force - The Alberta Court of Appeal held that the proceedings against the accused commenced before the amendment came into force - See paragraphs 81 to 85.

Criminal Law - Topic 1278

Murder - Murder during other offences - Jury charge - Criminal Code of Canada, R.S.C. 1970, c. C-34, ss. 213, 214 - After robbing a bank the accused fled in a car, followed by a person he assumed was a policeman in plain clothes and an unmarked car - The accused shot the policeman, when the policeman tried to arrest him with a gun - The Alberta Court of Appeal discussed and set out the correct charge to the jury on a charge of the murder of the police officer - See paragraphs 59 to 63.

Criminal Law - Topic 1293

Murder - Defences - Self-defence - After robbing a bank the accused fled in a car, followed by a person he assumed was a policeman in plain clothes and an unmarked car - The accused shot the policeman, when the policeman tried to arrest him with a gun - The accused pleaded the defence of self-defence, but was convicted of murder - On appeal the Alberta Court of Appeal approved the trial judge's direction to the jury that in the circumstances the defence of self-defence was not available to the accused, if the jury found he knew that the victim was a police officer - See paragraphs 30 to 40.

Criminal Law - Topic 2759

Parties to offences - Jury charge - Murder during other offences - Criminal Code of Canada, R.S.C. 1970, c. C-34, ss. 21, 213, 214 - After robbing a bank the accused and a female companion fled in a car, followed by a person the accused assumed was a policeman in plain clothes and an unmarked car - The accused shot the policeman, when the policeman tried to arrest him with a gun - The accused was charged with murder and his companion with being a party to the murder - The Alberta Court of Appeal discussed and set out the correct charge to the jury on the charge of being a party to the murder - See paragraphs 59 to 63.

Criminal Law - Topic 4357

Procedure - Charge or directions to jury - Directions regarding defences and theory of the defence - The Alberta Court of Appeal held that a trial judge adequately put the defences of the accused to the jury - See paragraphs 43 and 73 to 76.

Criminal Law - Topic 5039

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscarriage of justice - Effect of error by trial judge - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 613(1)(b)(iii) - The Alberta Court of Appeal held that, even if the trial judge erred in the admission of certain evidence, the appeal from conviction should be dismissed, because no substantial wrong or miscarriage of justice occurred - See paragraphs 45 to 49 and 53 to 57.

Criminal Law - Topic 5039

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscarriage of justice - Effect of error by trial judge - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 613(1)(b)(iii) - On a charge of being a party to the murder of a police officer the jury was directed on the offence as amended by the Criminal Law Amendment Act, S.C. 1974-75-76, c. 105 - The Amendment Act stated that the section as it was before the amendment was applicable in the circumstances - However, the Amendment Act also provided that, if a new trial was ordered, the amended version should be applied - The Alberta Court of Appeal refused to order a new trial, because a new trial would be tried on the amended section as was the first trial and no miscarriage of justice had occurred - See paragraphs 86 to 93.

Criminal Law - Topic 5207

Evidence - Relevancy - Acts constituting elements of another crime - After robbing a bank the accused fled in a car followed by a person he assumed was a policeman in plain clothes and an unmarked car - The accused shot the policeman, when the policeman tried to arrest him with a gun - The accused then fled and took three hostages before being cornered in a house - At the trial of the accused for murder the trial judge admitted evidence about events after the shooting of the policeman - The evidence included evidence relevant to charges of robbery, break and enter and abduction, but also included statements which the accused made to the hostages which were relevant to the murder charge - The accused objected that the evidence of other offences was prejudicial to him on the charge of murder - The Alberta Court of Appeal held that all of the evidence was properly admitted, because the evidence relevant to the charge of murder could not have been meaningfully put before the jury without the rest - See paragraphs 53 to 57.

Criminal Law - Topic 5293

Evidence - Interception of private communications - What constitutes private communication - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 178.1 - The accused sought refuge in a house after a robbery and the subsequent shooting of a policeman and the kidnapping of hostages - During the next two days, while the house was surrounded by police, the accused talked to various persons on the telephone, including a reporter - The calls were recorded by the police - The Alberta Court of Appeal stated that the telephone conversations were not private communications, because in the circumstances the accused could not expect the telephone calls to go unintercepted - See paragraphs 45 to 51.

Criminal Law - Topic 5294

Evidence - Private communications - What constitutes interception - Criminal Code of Canada, R.S.C. 1970, c. C- 34, s. 178.1 - The accused sought refuge in a house after a robbery and the subsequent shooting of a policeman and kidnapping of hostages - During the next two days, while the house was surrounded by police, the accused talked to various persons on the telephone, including a reporter - The reporter testified about the telephone conversation - The Alberta Court of Appeal held that the question of interception of the communication with the reporter did not arise, where the reporter as a recipient of the call testified about the call - See para graph 52.

Cases Noticed:

R. v Sliworsky, [1971] 2 W.W.R. 290, refd to. [para. 24].

Latour v. The King, [1951] S.C.R. 19, refd to. [para. 32].

Colpitts v. The Queen, [1966] 1 C.C.C. 146, refd to. [para. 43].

Noor Mohamed v. The King, [1949] A.C. 182 (P.C.), dist. [para. 55].

R. v. Caouette, [1973] S.C.R. 859, appld. [para. 62].

R. v. Riezebos (1976), 26 C.C.C.(2d) 1, appld. [para. 63].

R. v. Augustus, Rivett and Sartor (1977), 5 A.R. 499 [para. 63].

Henderson v. The King, [1948] S.C.R. 226, appld. [para. 73].

Picariello et al. v. The King (1923), 39 C.C.C. 229 (S.C.C.) 245, consd. [para. 76].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 21(2) [para. 60]; sect. 178.1 [para. 50]; sect. 213, sect. 214, sect. 613(1)(b)(iii) [paras. 57, 49].

Criminal Law Amendment Act, S.C. 1974-75-76, c. 105, sect. 26, sect. 27 [para. 82].

Counsel:

R.A. Cairns, for the appellant Nichols;

A.W. MacDonald, Jr., for the appellant Gamble;

P.S. Chrumka, Q.C., for the Crown.

This case was heard before SINCLAIR, MOIR and HADDAD, JJ.A., of the Alberta Supreme Court, Appellate Division.

On April 6, 1978, SINCLAIR, J.A., delivered the following judgment for the Appellate Division: