R. v. Hebert (D.M.), (1996) 197 N.R. 277 (SCC)

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Iacobucci and Major, JJ.
• Citation: (1996), 197 N.R. 277 (SCC),77 BCAC 1,48 CR (4th) 204,[1996] ACS no 65,126 WAC 1,[1996] SCJ No 65 (QL),1996 CanLII 202 (SCC),[1996] 2 SCR 272,107 CCC (3d) 42,[1996] CarswellBC 1500,135 DLR (4th) 577,197 NR 277
• Court: Supreme Court (Canada)
• Date: 30 May 1996

R. v. Hebert (D.M.) (1996), 197 N.R. 277 (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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Dale Maurice Hebert (appellant) v. Her Majesty The Queen (respondent)

(24840)

Indexed As: R. v. Hebert (D.M.)

Supreme Court of Canada

Sopinka, Cory, McLachlin,

Iacobucci and Major, JJ.

May 30, 1996.

Summary:

The accused was convicted of aggravated assault following a jury trial. The accused appealed against conviction on the ground that the trial judge misdirected the jury respecting self-defence.

The British Columbia Court of Appeal, Finch, J.A., dissenting, in a judgment report­ed 60 B.C.A.C. 299; 99 W.A.C. 299, dis­missed the appeal. The trial judge did err, but the court invoked s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal not­withstanding the errors. The accused ap-pealed.

The Supreme Court of Canada allowed the appeal and ordered a new trial. The trial judge erred in directing the jury. The Court of Appeal erred in invoking s. 686(1)(b)(iii).

Criminal Law - Topic 1420

Assaults - Defence - Self-defence - Sec-tion 34(1) of the Criminal Code pro­vided a defence of self-defence - The Supreme Court of Canada stated that "the jury must indeed be satisfied that every element of the defence has been met. That is to say for the defence to be successful the jury must be left with a reasonable doubt as to the existence of all the elements of the defence. Namely, (i) the accused was unlawfully assaulted; (ii) the accused did not provoke the assault; (iii) the force used by the accused was not intended to cause death or grievous bodily harm; and (iv) the force used by the accused was no more than necessary to enable him to defend himself. The trial judge was correct in stating that the defence would only suc­ceed if a reasonable doubt was raised with respect to all of these elements." - See paragraph 23.

Criminal Law - Topic 4370

Procedure - Jury charge - Directions regarding self-defence - The accused pleaded self-defence - The trial judge instructed the jury on ss. 26, 27, 34(1), 34(2) and 37(1) of the Criminal Code - Only s. 34(1) applied - The Supreme Court of Canada affirmed that the trial judge's instructions must have hope­lessly confused the jury and may have diverted the jury from the real issue (i.e., self-defence under s. 34(1)) - The trial judge should not have instructed the jury on s. 34(2) and further compounded the error, in responding to a jury question respecting "excessive force", by failing to advise them that "excessive force" was not a consideration under s. 34(2)(i.e., only s. 26 used that phrase) - The court held that the Court of Appeal erred in invoking s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal notwithstanding the errors - The court directed a new trial.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Substantial wrong or miscarriage of justice - What consti­tutes - [See Criminal Law - Topic 4370 ].

Cases Noticed:

R. v. Colpitts, [1965] S.C.R. 739, refd to. [para. 7].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 322 A.P.R. 1, refd to. [para. 7].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234; 64 C.C.C.(3d) 193; 5 C.R.(4th) 351, refd to. [para. 7].

R. v. Pétel (C.), [1994] 1 S.C.R. 3; 162 N.R. 137; 59 Q.A.C. 81; 87 C.C.C.(3d) 97, refd to. [para. 15].

R. v. Ward (1978), 4 C.R.(3d) 190 (Ont. C.A.), refd to. [para. 16].

R. v. Mulder (1978), 40 C.C.C.(2d) 1 (Ont. C.A.), refd to. [para. 16].

R. v. Baxter (1975), 27 C.C.C.(2d) 96 (Ont. C.A.), refd to. [para. 18].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 20].

R. v. Naglik, [1993] 3 S.C.R. 122; 157 N.R. 161; 65 O.A.C. 161, refd to. [para. 20].

R. v. Kandola (J.S.) (1993), 27 B.C.A.C. 226; 45 W.A.C. 226; 80 C.C.C.(3d) 481 (C.A.), refd to. [para. 23].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 26, sect. 27, sect. 34, sect. 37(1) [para. 2].

Counsel:

Joseph J. Blazina, for the appellant;

Robert A. Mulligan, for the respondent.

Solicitors of Record:

McCullough Blazina Parsons & Prkacin, Victoria, B.C., for the appellant;

Robert A. Mulligan, Victoria, B.C., for the respondent.

This appeal was heard on April 25, 1996, before Sopinka, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On May 30, 1996, the judgment of the Supreme Court of Canada was delivered in both official languages by Cory, J.