R. v. McDowell, (1976) 1 A.R. 579 (CA)

• Judge: Clement, Prowse and Moir, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 02, 1976
• Citations: (1976), 1 A.R. 579 (CA)

R. v. McDowell (1976), 1 A.R. 579 (CA)

MLB headnote and full text

R. v. McDowell

Indexed As: R. v. McDowell

Alberta Supreme Court

Appellate Division

Clement, Prowse and Moir, JJ.A.

December 2, 1976.

Summary:

This case arose out of a charge against the accused of break, enter and theft contrary to s. 306(1)(b) of the Criminal Code of Canada, R.S.C. 1970, c. C-34. The accused was acquitted by the trial judge on the evidence. The Crown appealed. The Appellate Division dismissed the appeal.

The Appellate Division held that break and enter with intent under s. 306(1)(a) of the Criminal Code was not an included offence of break, enter and theft - see paragraphs 6 and 10 to 24.

Criminal Law - Topic 4458

Verdicts - Included offences - Inclusion in break, enter and theft - Whether break and enter with intent is an included offence of break, enter and theft - The Alberta Court of Appeal held that break and enter with intent under s. 306(1)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34, was not an included offence of break, enter and theft under s. 306(1)(b) - See paragraphs 6 and 10 to 24.

Criminal Law - Topic 4458

Verdicts - Included offences - Whether the wording of the charge of break, enter and theft included the offence of break and enter with intent within the meaning of s. 589(1) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - The accused was charged that he did "unlawfully break and enter a place . . . and did then and there commit theft" - The Alberta Court of Appeal held that the offence of break and enter with intent was not included in the charge, because the essential ingredient of intent to commit an offence was not set out in the charge - See paragraphs 21 to 22.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law alone - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 771 - The accused was acquitted on a charge of break, enter and theft - The Crown appealed on the ground that the trial judge erred in failing to find the charge proved - The Alberta court of Appeal dismissed the appeal and held that whether or not the charge was proved on the evidence was not a question of law alone, to which the Crown was limited on appeal under s. 771 - See paragraphs 6 to 9.

Cases Noticed:

R. v. Rinnie (1969), 71 W.W.R. (N.S.) 274, appld. [para. 14].

R. v. Manuel (1960), 33 W.W.R. (N.S.) 406, appld. [para. 14].

Lafrance v. The Queen (1973), 39 D.L.R.(3d) 693, appld. [para. 16].

R. v. Vandercomb & Abbott (1796), 168 E.R. 455, appld. [para. 19].

R. v. Hollis, [1971] Crim. L.R. 525, appld. [para. 20].

R. v. Read (1954), 108 C.C.C. 133, not folld. [para. 23].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 306(1)(a) [para. 11]; sect. 306(1)(b) [para. 10]; sect. 306(2)(a) [para. 12]; sect. 510 [para. 21]; sect. 589 [para. 13].

Counsel:

J. Watson, for the appellant;

B.E. Mintz, for the respondent.

This case was heard before CLEMENT, PROWSE and MOIR, JJ.A., of the Alberta Supreme Court, Appellate Division.

On December 2, 1976, at Edmonton, Alberta, MOIR, J.A., delivered the following judgment of the Appellate Division: