R. v. Nygaard and Schimmens, (1989) 101 N.R. 108 (SCC)

• Judge: Dickson, C.J.C., Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ.
• Court: Supreme Court of Canada
• Case Date: November 09, 1989
• Jurisdiction: Canada (Federal)
• Citations: (1989), 101 N.R. 108 (SCC)

R. v. Nygaard (1989), 101 N.R. 108 (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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Alan Gustaf Nygaard (appellant) v. Her Majesty The Queen (respondent) John Alexander Schimmens (appellant) v. Her Majesty The Queen (respondent)

(20491-4)

Indexed As: R. v. Nygaard and Schimmens

Supreme Court of Canada

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

November 9, 1989.

Summary:

The accused were convicted of first degree murder on the combined effect of ss. 214(2) and 212(a)(ii) of the Criminal Code. The accused appealed.

The Alberta Court of Appeal, Stevenson, J.A., dissenting, in a judgment reported 78 A.R. 389, dismissed the appeals. The accused appealed, submitting that a first degree murder conviction could not be supported on the combined effect of ss. 214(2) and 212(a)(ii), because the element of planning and deliberation required under s. 214(2) was incompatible with the requisite mens rea for s. 212(a)(ii). The accused also submitted that the trial judge erred in permitting the Crown to cross-examine a witness on statements made by her in intercepted telephone conversations with one of the accused without complying with s. 178.16 of the Code.

The Supreme Court of Canada, L'Heureux-Dubé, J., dissenting, allowed the appeals and ordered new trials. The court held that ss. 214(2) and 212(a)(ii) combined could support a first degree murder conviction. The court held that the trial judge erred in admitting the intercepted communications without compliance with s. 178.16.

Criminal Law - Topic 1270

Murder - First degree murder - "Planned" and "deliberate" - Meaning of - An accused was guilty of murder under s. 212(a)(ii) of the Criminal Code where he meant to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not - Section 214(2) made murder first degree murder where it was planned and deliberate - The Supreme Court of Canada affirmed that the intentional element in s. 212(a)(ii) was the intent to cause bodily harm with the knowledge that it was likely to cause death; if that intentional element was planned and deliberate and was carried out with the required recklessness, then murder under s. 212(a)(ii) was first degree murder - See paragraphs 16 to 31.

Criminal Law - Topic 1270

Murder - First degree murder - "Planned" and "deliberate" - Meaning of - The Supreme Court of Canada stated that "planned" meant the scheme was conceived and carefully thought out before it was carried out and "deliberate" meant considered, not impulsive - The court referred to a classic jury charge on the meaning of planning and deliberation - See paragraph 18.

Criminal Law - Topic 5297

Evidence - Witnesses - Inadmissible private communications - Admissible interceptions - "Lawfully made" - A defence witness testified contrary to prior statements made in an intercepted telephone conversation between the witness and the accused - The Crown claimed that it was not introducing the intercepted conversation in evidence against the accused, but only to cross-examine the witness to attack her credibility - The Crown submitted that, therefore, it was not required to prove the interception was lawfully made under s. 178.16 of the Criminal Code - The Supreme Court of Canada held that the Crown did more than impeach the witness, the intercepted conversations were used to destroy the accused's sole defence of alibi - The court held that the provisions of s. 178.16 had to be complied with, to prevent the Crown from doing indirectly what it could not do directly.

Evidence - Topic 4751

Witnesses - Examination - Prior inconsistent statement - Use of - [See Criminal Law - Topic 5297 above].

Cases Noticed:

R. v. Farrant, [1983] 1 S.C.R. 124; 46 N.R. 337, refd to. [para. 17].

R. v. Droste, [1984] 1 S.C.R. 208; 52 N.R. 176, refd to. [para. 17].

R. v. Ancio, [1984] 1 S.C.R. 225; 52 N.R. 161, dist. [para. 19].

R. v. Chabot (1985), 7 O.A.C. 180; 16 C.C.C.(3d) 483 (C.A.), dist. [para. 24].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1, refd to. [para. 30].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161, refd to. [para. 33].

R. v. Charette, [1980] 1 S.C.R. 785; 33 N.R. 158, refd to. [para. 37].

R. v. Wildman, [1984] 2 S.C.R. 311; 55 N.R. 27, refd to. [para. 44].

Donnelly v. The King (1947), 89 C.C.C. 237 (N.B.C.A.), refd to. [para. 57].

R. v. Treacy (1944), 30 Cr. App. R. 93, refd to. [para. 59].

Hebert v. The Queen, [1955] S.C.R. 120, refd to. [para. 59].

R. v. Lanigan (1984), 53 N.B.R.(2d) 388; 138 A.P.R. 388, refd to. [para. 59].

Lui Mei Lin v. The Queen, [1989] 1 A.C. 288 (P.C.), refd to. [para. 60].

R. v. Welsh (1977), 32 C.C.C.(2d) 363 (Ont. C.A.), refd to. [para. 71].

R. v. Gamble and Nichols (1978), 9 A.R. 179; 40 C.C.C.(2d) 415, refd to. [para. 86].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 178.16(1) [paras. 36, 50, 68]; sect. 178.16(4) [para. 36]; sect. 212(a)(i), sect. 212(a)(ii) [para. 16]; sect. 212(b) [para. 26]; sect. 212(c) [para. 24]; sect. 214(2) [para. 16]; sect. 613(1)(b)(iii) [para. 43].

Evidence Act, R.S.C. 1985, c. E-5, sect. 11 [paras. 38, 81].

Authors and Works Noticed:

Bryant, Alan W., The Adversary's Witness: Cross-Examination and Proof of Prior Inconsistent Statements (1984), 62 Can. Bar Rev. 43, pp. 60-61 [para. 82].

May, Richard, Criminal Evidence (1986), s. 8-86 [para. 63].

McWilliams, Peter K., Canadian Criminal Evidence (1974), pp. 627 [para. 58]; 629 [para. 52].

Watt, David, Law of Electronic Surveillance in Canada (1979), p. 298 [para. 40].

Counsel:

Noel O'Brien, Q.C., for the appellant, Alan Gustaf Nygaard;

Alex Pringle, for the appellant, John Alexander Schimmens;

Peter Martin, Q.C., and Earl Wilson, for the respondent, Her Majesty The Queen.

Solicitors of Record:

O'Brien Devlin Markey MacLeod, Calgary, Alberta, for the appellant, Alan Gustaf Nygaard;

Pringle, Brimacombe & Sanderman, Edmonton, Alberta, for the appellant, John Alexander Schimmens;

The Attorney General of Alberta, Calgary, Alberta, for the respondent.

These appeals were heard on May 26, 1989, before Dickson, C.J.C., Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin, JJ., of the Supreme Court of Canada.

On November 9, 1989, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Cory, J. (Dickson, C.J.C., Lamer, Wilson and Sopinka, JJ., concurring) - see paragraphs 1 to 48;

McLachlin, J. (La Forest and Gonthier, JJ., concurring) - see paragraphs 49 to 66;

L'Heureux-Dubé, J., dissenting - see paragraphs 67 to 91.