R. v. Goldberg (D.R.), 2014 BCCA 313

• Judge: Newbury, Lowry and Willcock, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: August 05, 2014
• Jurisdiction: British Columbia
• Citations: 2014 BCCA 313;(2014), 359 B.C.A.C. 209 (CA)

R. v. Goldberg (D.R.) (2014), 359 B.C.A.C. 209 (CA);

    615 W.A.C. 209

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. AU.016

Regina (respondent) v. David Ross Goldberg (appellant)

(CA039996; 2014 BCCA 313)

Indexed As: R. v. Goldberg (D.R.)

British Columbia Court of Appeal

Newbury, Lowry and Willcock, JJ.A.

August 5, 2014.

Summary:

The accused, in California, became obsessed with a Thai woman he met over the internet. She agreed to marry him. He sent her family money. The woman broke off the relationship. The accused later learned that the woman became engaged to a British Columbia man. The accused, still obsessed with the woman and getting his money back, purchased two guns and explosive materials and drove to British Columbia. He located the woman's residence and confronted the woman and the man on the street demanding his money back. The accused pointed a loaded firearm at them and told them that they were going to die. The accused was disarmed in a scuffle with the man. The accused was charged with two counts of attempted murder and possession of explosive substances.

The British Columbia Supreme Court, in a judgment reported [2011] B.C.T.C. Uned. 1925, found the accused guilty. The court determined that the accused had the requisite intent to kill the woman and the man. This was an act beyond mere preparation. The accused appealed.

The British Columbia Court of Appeal dismissed the appeal. The trial judge did not err in finding that the accused had the requisite intent to kill. Based on the judge's exercise of "common sense" judgment, there was also no error in finding that an "attempt" had been established where the accused pointed a loaded firearm at the woman and man while telling them that they were going to die. The accused's actions went beyond "mere preparation" and constituted the actus reus of the offence.

Criminal Law - Topic 1257

Offences against person and reputation - Attempted murder - Elements - See paragraphs 31 to 49.

Criminal Law - Topic 2627

Attempts, conspiracies, accessories and parties - Attempts - What constitutes an attempt - See paragraphs 31 to 49.

Cases Noticed:

R. v. Ancio, [1984] 1 S.C.R. 225; 52 N.R. 161; 2 O.A.C. 124, refd to. [para. 11].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 24].

R. v. Cline (1956), 4 D.L.R.(2d) 480 (Ont. C.A.), refd to. [para. 35].

R. v. Scofield (1784), Cald. Mag. Cas. 397, refd to. [para. 35].

R. v. Mantley (E.M.) (2013), 327 N.S.R.(2d) 115; 1036 A.P.R. 115; 2013 NSCA 16, refd to. [para. 36].

R. v. Deutsch, [1986] 2 S.C.R. 2; 68 N.R. 321; 18 O.A.C. 1, refd to. [para. 41].

R. v. Boudreau (M.J.) (2005), 231 N.S.R.(2d) 81; 733 A.P.R. 81; 2005 NSCA 40, refd to. [para. 43].

R. v. Chittick (D.S.) (2004), 228 N.S.R.(2d) 81; 723 A.P.R. 81; 2004 NSCA 135, refd to. [para. 46].

R. v. Sheppard (C.) (2002), 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 46].

R. v. James (1971), 2 C.C.C.(2d) 141 (Ont. C.A.), refd to. [para. 48].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 48].

R. v. Sorrell (1978), 41 C.C.C.(2d) 9 (Ont. C.A.), refd to. [para. 48].

R. v. Roberts, [1981] B.C.J. No. 1185, refd to. [para. 48].

R. v. Kosh, [1965] 1 C.C.C. 230 (Sask. C.A.), refd to. [para. 48].

Authors and Works Noticed:

Beale, J.H., Criminal Attempts (1903), 16 Harv. L. Rev. 491, generally [para. 40].

Garton, Nola, The Actus Reus in Criminal Attempts (1974), 2 Queen's L.J. 183, generally [para. 40].

Manning, Morris, and Sankoff, P., Manning, Mewett & Sankoff - Criminal Law (4th Ed. 2009), pp. 292 to 299 [para. 40].

Marlin, Randal, Attempts and the Criminal Law: Three Problems (1976), 8 Ott. L. Rev. 518, generally [para. 40].

MacKinnon, Peter, Making Sense of Attempts (1982), 7 Queen's L.J. 253, generally [para. 40].

Manson, Allan, Recodifying Atempts, Parties and Abandoned Intentions (1989), 14 Queen's L.J. 85, generally [para. 40].

Meehan, E., and Currie, J.H., The Law of Criminal Attempt (2nd Ed. 2000), pp. 93 to 105 [para. 40].

Roach, Kent, Criminal Law (4th Ed. 2009), pp. 122 to 125 [para. 40].

Sayer, F.B., Criminal Attempts (1928), 41 Harv. L. Rev. 822, pp. 843 to 858 [para. 40].

Stewart, Harnish, When Does Fraud Vitiate Consent? A Comment on R. v. Williams (2004), 49 Crim. L.Q. 144, pp. 159 to 164 [para. 40].

Stuart, Don, Canadian Criminal Law: A Treatise (6th Ed. 2011), pp. 694 to 711 [para. 40].

Counsel:

R.A. Mulligan, Q.C., for the appellant;

S.J. Brown, for the respondent.

This appeal was heard on June 13, 2014, at Victoria, B.C., before Newbury, Lowry and Willcock, JJ.A., of the British Columbia Court of Appeal.

On August 5, 2014, Newbury, J.A., delivered the following judgment for the Court of Appeal.