R. v. Gunn, (1982) 18 Man.R.(2d) 33 (SCC)

• Judge: Laskin, C.J.C., Ritchie, Dickson, Beetz, McIntyre, Chouinard and Lamer, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 05, 1982
• Jurisdiction: Canada (Federal)
• Citations: (1982), 18 Man.R.(2d) 33 (SCC);135 DLR (3d) 237;27 CR (3d) 120;[1982] 1 SCR 522;66 CCC (2d) 294;1982 CanLII 174 (SCC)

R. v. Gunn (1982), 18 Man.R.(2d) 33 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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R. v. Gunn

Indexed As: R. v. Gunn

Supreme Court of Canada

Laskin, C.J.C., Ritchie, Dickson, Beetz, McIntyre, Chouinard and Lamer, JJ.

April 5, 1982.

Summary:

Apaya and Gunn were charged under s. 423(3) of the Criminal Code of Canada with conspiring in Canada to export arms from the United States in contravention of United States criminal law. After the accused were committed for trial after a preliminary hearing the Crown preferred an indictment against the accused alleging conspiracies in violation of the Canadian Export and Import Permits Act. The prior charge under s. 423(3) was not mentioned. At trial after the Crown had put in its case the Crown moved to amend the indictment to add a reference to the prior conspiracy to violate United States law under s. 423(3).

The Manitoba County Court denied the motion and allowed the accused's motion to dismiss. The Crown appealed.

The Manitoba Court of Appeal in a judgment reported 4 Man.R.(2d) 269 allowed the appeal, held that the amendment of the indictment should have been granted and ordered the amendment and that the trial continue to enable the defence to call evidence or close the case. The accused Gunn appealed. The Supreme Court of Canada allowed the appeal and restored the acquittal. The court held that the Court of Appeal had no jurisdiction to amend the indictment by the substitution of a different offence for the one charged. The court held further that the Court of Appeal had the power only to order a new trial in full and could not order that the trial merely continue.

Criminal Law - Topic 2656

Conspiracy - Conspiracy in Canada to commit crime in another country - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 423(3) - The Supreme Court of Canada held that under s. 423(3) the statutory fiction of conspiracy in Canada in violation of foreign law can only become operative if a breach of the foreign law is charged - See paragraph 10.

Criminal Law - Topic 4736

Procedure - Information or indictment - Indictable offences - Amendment of, after close of trial or on appeal - The Supreme Court of Canada held that a court of appeal has no jurisdiction to amend an indictment by the substitution of a different offence for the one charged in the indictment, especially where that was one of the grounds upon which the trial judge refused to amend - See paragraphs 7 to 9.

Criminal Law - Topic 4941

Appeals - Indictable offences - New trials - General - The Supreme Court of Canada held that in ordering a new trial a court of appeal may only order a new trial in full and may not merely order that the trial continue - See paragraph 9.

Cases Noticed:

Bolduc v. The Queen (1982), 43 N.R. 185, refd to. [para. 2].

R. v. Kerr (1922), 53 O.L.R. 228, appld. [para. 8].

Dupont v. The Queen (1958), 123 C.C.C. 386, appld. [para. 8].

R. v. Elliott, [1970] 3 C.C.C. 233, appld. [para. 8].

R. v. Elliott, [1978] 2 S.C.R. 393; 18 N.R. 485, appld. [para. 8].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 423(1)(d), sect. 423(3) [para. 4].

Counsel:

K.G. Houston, Q.C., for the appellant;

E.G. Ewaschuk, Q.C., and P.M. Kremer, for the respondent.

This case was heard on February 17 and 18, 1982, at Ottawa, Ontario, before LASKIN, C.J.C., RITCHIE, DICKSON, BEETZ, McINTYRE, CHOUINARD and LAMER, JJ., of the Supreme Court of Canada.

On April 5, 1982, the judgment of the Supreme Court of Canada was delivered in English followed by its French language version and the following opinions were filed:

LASKIN, C.J.C. - see paragraphs 1 to 10;

LAMER, J. - see paragraphs 11 to 12.

RITCHIE, DICKSON, BEETZ and CHOUINARD, JJ., concurred with LASKIN, C.J.C.

McINTYRE, J., concurred with LAMER, J.