R. v. Kirkness, (1990) 116 N.R. 81 (SCC)

• Judge: Lamer, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 22, 1990
• Jurisdiction: Canada (Federal)
• Citations: (1990), 116 N.R. 81 (SCC);[1990] CarswellMan 15;[1990] ACS no 119;69 Man R (2d) 81;116 NR 81;1990 CanLII 57 (SCC);[1990] SCJ No 119 (QL);60 CCC (3d) 97;[1990] 3 SCR 74;1 CR (4th) 91

R. v. Kirkness (1990), 116 N.R. 81 (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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Mark Walter Kirkness (appellant) v. R. (respondent)

(21720)

Indexed As: R. v. Kirkness

Supreme Court of Canada

Lamer, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ.

November 22, 1990.

Summary:

Kirkness and Snowbird broke into an old woman's house to steal. Snowbird proceeded to rape, assault and strangle to death the old woman, while Kirkness braced the door shut and walked about stealing things. As Snowbird was strangling the woman, Kirkness told him not to kill her, but made no attempt to help her or stop him. After being charged by the trial judge on parties to offences, the jury convicted Snowbird of first degree murder, but acquitted Kirkness of both murder and manslaughter, apparently finding that although he was a party to the sexual assault, he was not a party to the strangulation which killed the old woman. The Crown appealed.

The Manitoba Court of Appeal in a judgment reported 61 Man.R.(2d) 167; 51 C.C.C.(3d) 444, allowed the appeal, set aside Kirkness' acquittal and ordered a new trial on a manslaughter charge on the ground that events should be regarded as one transaction in which the accused participated. Kirkness appealed.

The Supreme Court of Canada allowed the appeal and restored the acquittal, finding that the trial judge properly charged the jury on murder and manslaughter and parties to offences. See paragraphs 1 to 30.

Wilson, J., dissenting (L'Heureux-Dubé, J., concurring) was of the opinion that the trial judge erred in instructing the jury on party liability and that there should be a new trial. Wilson, J., doubted that Kirkness withdrew from the criminal enterprise to the extent necessary to escape liability for the death. See paragraphs 31 to 104.

Criminal Law - Topic 31

General principles - Mens rea or intention - Abandonment of intention [See Criminal Law - Topic 1273].

Criminal Law - Topic 1271

Murder during the commission of other offences - General principles - When single transaction principle applicable - The Supreme Court of Canada held that s. 231(5) of the Criminal Code, R.S.C. 1985, c. C-46, respecting murder during the commission of other offences was applicable only to first and second degree murder and not manslaughter - See paragraphs 16 to 17, 31.

Criminal Law - Topic 1273

Murder during the commission of other offences - Intent - Parties to offences - Kirkness and Snowbird broke into an old woman's home to steal - Snowbird sexually assaulted her in her bedroom, while Kirkness barred the front door - When Snowbird dragged her into the hall and began to strangle her, Kirkness told him to stop because he was going to kill her and continued to steal things - The woman was choked to death - The Supreme Court of Canada held that the single transaction principle under s. 231(5) of the Criminal Code was inapplicable to convict Kirkness of her death, because he was a party to sexual assault, but not strangulation - See paragraphs 18 to 30.

Criminal Law - Topic 1311

Offences against the person and reputation - Manslaughter - Intention - [See Criminal Law - Topic 1314].

Criminal Law - Topic 1314

Manslaughter - Jury charge - Kirkness and Snowbird broke into an old woman's home to steal - Snowbird sexually assaulted her in her bedroom while Kirkness barred the front door - When Snowbird dragged her into the hall and began to strangle her, Kirkness told him to stop because he was going to kill her and continued to steal things - The woman was choked to death - The Supreme Court of Canada upheld the acquittal of Kirkness, because he was not a party to strangulation, and held the jury charge adequate on murder and manslaughter - See paragraphs 24 to 29.

Criminal Law - Topic 2749

Attempts, conspiracies, accessories and parties - Parties - Defences - Abandonment - Wilson, J., of the Supreme Court of Canada, in a dissenting judgment discussed the notion of abandonment of purpose to assist in a crime - See paragraphs 81 to 91.

Criminal Law - Topic 2754

Attempts, conspiracies, accessories and parties - Parties - Offences resulting from acting on common intention to carry unlawful purpose - [See Criminal Law - Topic 1273].

Cases Noticed:

R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. l; 60 C.R.(3d) 346; 38 C.C.C.(3d) 97, dist. [paras. 12, 31].

R. v. Stevens (1984), 20 O.A.C. 239; 11 C.C.C.(3d) 518 (Ont. C.A.), consd. [para. 14].

R. v. Whitehouse, [1941] 1 D.L.R. 683 (B.C.C.A.), appld. [paras. 22,82, 84].

R. v. Miller and Cockriell, [1977] 2 S.C.R. 680; 11 N.R. 386, appld. [paras. 22, 84].

R. v. Kent, Sinclair and Gode (1986), 40 Man.R.(2d) 160 (C.A.), consd. [para. 39].

R. v. Hartford and Frigon (1979), 51 C.C.C.(2d) 462 (B.C.C.A.), consd. [para. 39].

R. v. Trudeau and Toulouse (1985), 12 O.A.C. 189, consd. [para. 39].

Murray v. R., [1962] Tas. S.R. 170 (C.C.A.), consd. [para. 39].

R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881; 27 N.R. 153, consd. [para. 43].

R. v. Cunningham (1937), 68 C.C.C. 176 (Ont. C.A.), consd. [para. 46].

R. v. Lloyd (1890), 19 O.R. 352 (C.A.), consd. [para. 46].

R. v. Black, [1970] 4 C.C.C. 251, consd. [para. 47].

R. v. Cosgrove (1975), 29 C.C.C.(2d) 169 (Ont. C.A.), consd. [para. 48].

R. v. Clarkson, [1971] 3 All E.R. 344, consd. [para. 49].

R. v. Salajko (1970), 9 C.R.N.S. 145, disapprvd. [para. 50].

R. v. Yanover and Gerol (No. l) (1985), 9 O.A.C. 93; 20 C.C.C.(3d) 300, consd. [para. 52].

Director of Public Prosecutions for Northern Ireland v. Maxwell, [1978] 1 W.L.R. 1350 (H.L.), consd. [para. 52].

R. v. Stevenson (1984), 62 N.S.R.(2d) 193; 136 A.P.R. 193; 11 C.C.C.(3d) 443, appld. [para. 54].

Lord Dacre's Case (1543), l Hale's Pleas of the Crown 439, consd. [para. 67].

Plummer's Case, Kel J. 109; 84 E.R. 1103, consd. [para. 69].

R. v. Rice (1902), 5 C.C.C. 509 (Ont. C.A.), leave to appeal refused 5 C.C.C. 529, consd. [para. 72].

R. v. Govedarov, Popovik and Askov (1974), 16 C.C.C.(2d) 238 (Ont. C.A.), consd. [para. 75].

R. v. Viger (1985), 36 C.C.C.(3d) 18 (H.C.), consd. [para. 75].

Henderson v. R., [1948] S.C.R. 226, consd. [para. 82].

R. v. Becerra and Cooper (1975), 62 Cr. App. R. 212, consd. [para. 85].

R. v. Simpson and Ochs, [1988] 1 S.C.R. 3; 81 N.R. 267, appld. [para. 93].

Statutes Noticed:

Criminal Code, R.S.C. l985, c. C-46, sect. 21 [paras. 20, 28, 36]; sect. 229(a) [para. 28]; sect. 231(5) [para. 14].

Authors and Works Noticed:

Gilles, Criminal Law (1985), p. 140 [para. 93l].

Foster's Crown Law (1809), p. 35l [para. 67].

Lanham, Accomplices and Withdrawal (1981), 97 L.Q. Rev. 575 [para. 89]; 591 [para. 88].

Manson, Re-codifying Attempts, Parties, and Abandoned Intentions (1989), 14 Queen's L.J. 85, p. 95 [para. 89].

Rose, V. Gordon, Parties to an Offence (1982), pp. 10-ll [para. 53]; 64 [para. 67]; 65 [para. 94].

Stuart, Don, Canadian Criminal Law (1982), p. 493 [para. 50].

Wasik, Abandoning Criminal Intent, [1980] Crim. L. Rev. 785 [para. 90].

Williams, Glanville, Textbook of Criminal Law (1983), p. 364 [para. 88].

Counsel:

Timothy J. Preston, for the appellant, accused;

Stuart J. Whitley, Q.C., for the respondent, Crown.

Solicitors of Record:

Kaufman, Cassidy, Winnipeg, for the appellant;

Attorney General of Manitoba, Winnipeg, for the Crown.

This case was heard on May 3, 1990, at Ottawa, Ontario, before Lamer, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ., of the Supreme Court of Canada.

On November 22, 1990, the judgment of the Supreme Court of Canada was delivered in both official languages and the following judgments were filed:

Cory, J. (Lamer, C.J.C., La Forest, Sopinka and Gonthier, J., concurring) - see paragraphs 1 to 30;

Wilson, J., dissenting (L'Heureux-Dubé, J., concurring) - see paragraphs 31 to 104.