R. v. Hein (J.) et al., 2004 SKCA 120

• Judge: Gerwing, Lane and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 15, 2004
• Jurisdiction: Saskatchewan
• Citations: 2004 SKCA 120;(2004), 254 Sask.R. 298 (CA)

R. v. Hein (J.) (2004), 254 Sask.R. 298 (CA);

    336 W.A.C. 298

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. OC.063

Joshua Hein and Charles Dubois (appellants) v. Her Majesty the Queen (respondent)

(Nos. 523, 524; 2004 SKCA 120)

Indexed As: R. v. Hein (J.) et al.

Saskatchewan Court of Appeal

Gerwing, Lane and Jackson, JJ.A.

September 15, 2004.

Summary:

The accused appealed from their convictions for second degree murder and first degree murder.

The Saskatchewan Court of Appeal dismissed the conviction appeals. The court allowed the sentence appeals to the extent of altering the period of parole ineligibility for the second degree murder conviction from 25 years to 15 years.

Criminal Law - Topic 1272

Offences against person and reputation - Murder - Murder during commission of other offences - Elements of offence - The accused were convicted of the first degree murder of a woman, which occurred in the context of a home invasion for the purpose of a robbery - The accused appealed from the convictions, arguing that there was not unlawful confinement sufficient to elevate the death to first degree murder - The Saskatchewan Court of Appeal dismissed the ground of appeal - The victim was physically removed to another room, held down, attempts were made to tape her wrists and mouth with duct tape and she was repeatedly struck to keep her from returning to the area where the robbery was taking place - The victim's mobility was taken away and she was rendered helpless - That was sufficient for the judge to direct as he did on the possibility of unlawful confinement leading to first degree murder - See paragraphs 26 to 27.

Criminal Law - Topic 4388.1

Procedure - Charge or directions - Jury or judge alone - Directions respecting verdicts generally - The accused committed a home invasion and robbery, during which one of the occupants of the home received severe head wounds and other injuries - The woman remained in a coma for two weeks, emerged from the coma and then died suddenly one month after the incident - The accused were convicted of the first degree murder of the woman - The accused appealed, arguing that the trial judge erred in not leaving the verdict of not guilty with the jury - The Saskatchewan Court of Appeal dismissed the ground of appeal - The reference in the jury charge to the lack of not guilty as a verdict was in the context of differentiation between manslaughter, first degree murder and second degree murder - Reading the jury charge as a whole, the jury were clearly instructed that if they did not find that the injuries inflicted caused the woman's death they were to acquit the accused and the distinction among degrees of culpability was only to be entered upon after a finding of causation - The trial judge therefore did not err in the jury charge itself - While a document left with the jury contained only manslaughter, first degree murder and second degree murder as possible verdicts, that error did not constitute a substantial wrong or miscarriage of justice when it was considered in the context of the entire jury charge - See paragraphs 6 to 22.

Cases Noticed:

R. v. Jacquard (C.O.) (1995), 138 N.S.R.(2d) 352; 394 A.P.R. 352 (C.A.), affd. [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 12, footnote 4].

R. v. Strong (1990), 111 A.R. 12; 60 C.C.C.(3d) 516 (C.A.), dist. [para. 27, footnote 13].

R. v. Kimberley (C.M.) et al. (2001), 151 O.A.C. 42; 157 C.C.C.(3d) 129 (C.A.), leave to appeal denied (2002), 294 N.R. 392; 169 O.A.C. 200; 164 C.C.C.(3d) vi (S.C.C.), refd to. [para. 27, footnote 14].

Counsel:

John Kwok, for the appellant, Hein;

David J. Bishop, for the appellant, Dubois;

Anthony B. Gerein, for the Crown.

These appeals were heard on September 15, 2004, before Gerwing, Lane and Jackson, JJ.A., of the Saskatchewan Court of Appeal. The judgment of the Court of Appeal was rendered orally on September 15, 2004, and the following written reasons were delivered by Gerwing, J.A., on September 22, 2004.