R. v. Nicholson, (1980) 2 Man.R.(2d) 367 (CA)

• Judge: Freedman, C.J.M., Monnin and Matas, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: March 25, 1980
• Jurisdiction: Manitoba
• Citations: (1980), 2 Man.R.(2d) 367 (CA)

R. v. Nicholson (1980), 2 Man.R.(2d) 367 (CA)

MLB headnote and full text

R. v. Nicholson

Indexed As: R. v. Nicholson

Manitoba Court of Appeal

Freedman, C.J.M., Monnin and Matas, JJ.A.

March 25, 1980.

Summary:

This case arose out of charges against the accused of armed robbery and unlawfully using a firearm while committing the robbery contrary to s. 83 of the Criminal Code. Section 83 required a minimum sentence of one year for a first offence and a minimum sentence of three years for a second or subsequent offence. The accused was previously convicted of a robbery in which his accomplice used a firearm. The Crown submitted that the accused should be given the minimum three year sentence for a second offence of using a firearm while committing a robbery, but the trial judge sentenced the accused to the minimum one year imprisonment for a first offence, because the accused had not himself used a firearm during the prior offence. The sentence was made consecutive to a four year sentence for robbery. The Crown appealed.

The Manitoba Court of Appeal allowed the appeal and held that the accused should receive the minimum three year sentence for a second firearm offence, because he was convicted previously of an offence during which a firearm was used, notwithstanding that he did not use it himself.

Criminal Law - Topic 82

Res judicata - Multiple convictions for same subject matter precluded - Bars to raising defence - The accused was charged with armed robbery and with using a firearm while committing the robbery contrary to s. 83 of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - The Manitoba Court of Appeal held that the accused could be convicted of both the robbery and of using a firearm while committing the robbery - See paragraphs 6 to 7.

Criminal Law - Topic 1438

Firearms - Use of - During commission of offence - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 83(1) - The accused was convicted of robbery and with using a firearm while committing the robbery contrary to s. 83(1) - S. 83 required a minimum sentence of one year for a first offence and a minimum sentence of three years for a second or subsequent offence - The accused was previously convicted of a robbery in which his accomplice used a firearm - The Manitoba Court of Appeal held that the accused should receive a minimum three year sentence for a second offence, because he was party of a prior offence in which a firearm was used, notwithstanding that the accused himself did not use it - See paragraphs 2 to 13.

Cases Noticed:

R. v. Langevin (1979), 47 C.C.C.(2d) 138, appld. [para. 6].

Zanini v. The Queen, [1968] 2 C.C.C. 1 (S.C.C.), appld. [para. 8].

R. v. Quon, [1948] S.C.R. 508; 92 C.C.C. 1; [1949] 1 D.L.R. 135, refd to. [para. 11].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 83 [para. 3].

Counsel:

G.J. Dangerfield, Q.C., for the appellant;

D.E. Bowman, for the accused/respondent.

This case was heard on January 7, 1980, at Winnipeg, Manitoba, before FREEDMAN, C.J.M., MONNIN and MATAS, JJ.A., of the Manitoba Court of Appeal.

On March 25, 1980, MATAS, J.A., delivered the following judgment for the Court of Appeal: