R. v. Hall (C.A.), (1999) 242 A.R. 85 (QB)

• Judge: Hutchinson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 25, 1999
• Citations: (1999), 242 A.R. 85 (QB)

R. v. Hall (C.A.) (1999), 242 A.R. 85 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. AP.035

Cory Allan Hall (applicant/accused) v. Her Majesty The Queen (respondent)

(Action No. 9801-1376-C4)

Indexed As: R. v. Hall (C.A.)

Alberta Court of Queen's Bench

Judicial District of Calgary

Hutchinson, J.

March 25, 1999.

Summary:

The accused was charged with, inter alia, breaking and entering and committing an aggra­v­ated assault. He pled guilty immedi­ately and was sentenced. Soon after, the assault victim died and the accused was charged with second degree murder. The accused moved to stay the murder proceed­ings on the basis of: the special plea of autrefois convict, double jeopardy, abuse of process, the rule in Kien­apple against mul­tiple convictions, ss. 7 and 11(h) of the Charter and ss. 610(1) and 610(2) of the Criminal Code.

The Alberta Court of Queen's Bench dismissed the application.

Civil Rights - Topic 3157.3

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Procedure contrary to fundamental justice - [See Criminal Law - Topic 253 ].

Civil Rights - Topic 8404

Canadian Charter of Rights and Freedoms - Criminal proceedings - Double jeopardy -[See Criminal Law - Topic 77 and Crim­inal Law - Topic 253 ].

Criminal Law - Topic 77

Res judicata (multiple convictions for same subject matter precluded) - Procedure - An accused moved to stay the criminal pro­ceedings on the basis of: the special plea of autrefois convict, double jeopardy, abuse of process, the rule in Kienapple against multiple convictions, ss. 7 and 11(h) (double jeopardy) of the Charter and ss. 610(1) and 610(2) of the Criminal Code - The Alberta Court of Queen's Bench stated that "motions of this nature should normally be made before the trial judge after the trial has been completed and all the evidence heard and a verdict rendered." - See paragraph 81.

Criminal Law - Topic 78

Res judicata (multiple convictions for same subject matter precluded) - Where the offences are of different degrees of gravity - The accused was charged with, inter alia, breaking and entering and committing an aggrav­ated assault - He pled guilty imme­diately and was sentenced - Soon after, the assault victim died and the accused was charged with second degree murder - The accused moved to stay the murder proceed­ings on the basis of, inter alia, double jeopardy and the rule in Kienapple against multiple convictions - He argued that he could not be punished twice for the same act: beating of the victim - The Alberta Court of Queen's Bench rejected the argu­ment where, inter alia, the subsequent element or additional element of death of the victim created a new offence of murder which was not included in the other offence - There was no factual nexus or legal nexus between the two offences - See paragraphs 58 to 70.

Criminal Law - Topic 80

Res judicata (multiple convictions for same subject matter precluded) - Circumstances when defence may be raised - [See Crimi­nal Law - Topic 77 ].

Criminal Law - Topic 82

Res judicata (multiple convictions for same subject matter precluded) - Bars to raising the defence - [See Criminal Law - Topic 77 ].

Criminal Law - Topic 122

Double jeopardy - What constitutes jeop­ardy - [See Criminal Law - Topic 253 ].

Criminal Law - Topic 253

Abuse of process - What constitutes - The accused was charged with, inter alia, breaking and entering and committing an aggra­vated assault - He pled guilty imme­diately and was sen­tenced - The Crown appealed the sentence and wrote the ac­cused's coun­sel to advise that the accused would be charged with homicide if the victim died and it would consent to the accused's appeal from his conviction and withdrawal of his guilty plea - The victim died - The accused was charged with second degree murder - The accused moved to stay the murder proceed­ings as, inter alia, an abuse of process and violation of ss. 7 and 11(h) (double jeop­ardy) of the Charter - The Alberta Court of Queen's Bench held that the Crown's conduct was not oppressive or vexatious or contrary to the principles of fundamental justice (s. 7) - Section 11(h) did not apply given, inter alia, the nexus or relationship of sufficient proximity between the facts and the of­fences - See paragraphs 72 to 74.

Criminal Law - Topic 4224

Procedure - Pleas - Plea of autrefois con­vict - The accused was charged with, inter alia, break and enter and commit aggra­vated assault - He pled guilty immediately and was sentenced - Soon after, the assault victim died and the accused was charged with second degree murder - The accused moved to stay the murder proceedings on the basis of, inter alia, s. 610(1) of the Criminal Code which provided that a plea of autrefois was available where a subse­quent charge for substantially the same offence merely added a statement of inten­tion or circumstances of aggravation to the earlier charge for which the accused was convicted or acquitted - The Alberta Court of Queen's Bench held that s. 610(1) was of no assistance to the accused - The mur­der charge was not substantially the same offence as the break and enter and commit aggravated assault charge - There was no factual nexus or legal nexus between the two offences - See paragraph 70.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524; 26 C.R.N.S. 1; 44 D.L.R.(3d) 351, refd to. [para. 7].

Cox and Paton v. R., [1963] 2 C.C.C. 148 (S.C.C.), refd to. [para. 9].

R. v. Miles (1890), 24 Q.B.D. 423, refd to. [para. 9].

R. v. Thomas, [1950] 1 K.B. 26 (C.C.A.), refd to. [para. 9].

Wemyss v. Hopkins (1875), L.R. 10 Q.B. 378, refd to. [para. 9].

R. v. Morris (1867), L.R. 1 C.C.R. 90, refd to. [para. 10].

R. v. Krug (1985), 62 N.R. 263; 11 O.A.C. 187; 21 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 13].

R. v. McGuigan (1982), 40 N.R. 499; 66 C.C.C.(2d) 97 (S.C.C.), refd to. [para. 16].

R. v. Langevin (1979), 47 C.C.C.(2d) 138 (Ont. C.A.), refd to. [para. 16].

R. v. Colby (1989), 100 A.R. 142; 52 C.C.C.(3d) 321 (C.A.), refd to. [para. 22].

R. v. Prince (1986), 70 N.R. 119; 45 Man.R.(2d) 93; 30 C.C.C.(3d) 35 (S.C.C.), refd to. [para. 22].

Alberta (Attorney General) v. Visocchi (1980), 7 M.V.R. 88 (Alta. Q.B.), refd to. [para. 22].

R. v. Doliente (I.B.) (1996), 184 A.R. 131; 122 W.A.C. 131; 108 C.C.C.(3d) 137 (C.A.), revd. (1997), 212 N.R. 241; 200 A.R. 121; 146 W.A.C. 121; 115 C.C.C.(3d) 352 (S.C.C.), refd to. [paras. 25, 28].

R. v. Gordon, [1980] 3 W.W.R. 655 (Alta. Q.B.), refd to. [para. 37].

R. v. Wigman, [1987] 1 S.C.R. 246; 75 N.R. 51; 33 C.C.C.(3d) 97, refd to. [para. 49].

R. v. Dikah (A.) and Naoufal (N.) - see R. v. Naoufal (N.).

R. v. Naoufal (N.) (1994), 70 O.A.C. 214; 89 C.C.C.(3d) 321 (C.A.), refd to. [para. 53].

R. v. Osborne (1975), 11 N.B.R.(2d) 48; 7 A.P.R. 48; 25 C.C.C.(2d) 405 (C.A.), refd to. [para. 55].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(h) [para. 74].

Criminal Code of Canada, R.S.C. 1985, c. C-46, sect. 610(1) [para. 30].

Authors and Works Noticed:

Ewaschuk, Eugene G., Criminal Pleadings and Practice in Canada (2nd Ed.), p. 14-18.1 [para. 31].

Quigley, Procedure on Canadian Criminal Law, pp. 387 [para. 77]; 387 to 391 [para. 29].

Salhany, Roger E., Canadian Criminal Procedure (6th Ed. 1994), p. 6-66, paras. 6.2270 [para. 75]; 6.2290 [para. 37].

Counsel:

Larry Stein, for Her Majesty The Queen;

Mark Takada, for the applicant/accused.

This application was heard before Hutchinson, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on March 25, 1999.