R. v. Wigman, (1987) 75 N.R. 51 (SCC)

JudgeDickson, C.J.C., Beetz, McIntyre, Chouinard, Lamer, Le Dain and La Forest, JJ.
CourtSupreme Court (Canada)
Case DateApril 09, 1987
JurisdictionCanada (Federal)
Citations(1987), 75 N.R. 51 (SCC);1 WCB (2d) 454;38 DLR (4th) 530;[1987] SCJ No 13 (QL);33 CCC (3d) 97;[1987] 1 SCR 246;[1987] 4 WWR 1;56 CR (3d) 289;JE 87-533;75 NR 51;[1987] ACS no 13;1985 CanLII 1 (SCC)

R. v. Wigman (1987), 75 N.R. 51 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Gerald Michael Wigman v. Her Majesty the Queen

(No. 17940)

Indexed As: R. v. Wigman

Supreme Court of Canada

Dickson, C.J.C., Beetz, McIntyre, Chouinard, Lamer, Le Dain and La Forest, JJ.

April 9, 1987.

Summary:

In 1981 the accused pleaded guilty to three counts of break, enter and robbery. Subsequently, the accused was also charged with attempted murder, where one of the robbery victims was beaten and severely injured. The jury was charged on the mens rea for attempted murder as laid down in the Supreme Court of Canada decision in R. v. Lajoie; being a specific intent to kill or an intent to cause bodily harm knowing that death may result and being reckless whether death ensued or not. The accused was convicted. The accused appealed on the ground that the attempted murder conviction following the break, enter and robbery conviction violated the Kienapple rule against multiple convictions.

The British Columbia Court of Appeal, in a judgment reported 6 C.C.C.(3d) 289, dismissed the appeal on the ground that Kienapple did not apply. The accused was granted leave to appeal at large to the Supreme Court of Canada. Before the hearing, Lajoie was overruled by the Supreme Court of Canada in R. v. Ancio, a 1984 decision wherein it was held that the mens rea for attempted murder was the specific intent to kill. The issue arose as to whether the Ancio decision applied to the accused's appeal. The accused submitted that it did and that the trial judge therefore erred in his jury charge on mens rea. The Crown conceded that the trial judge's charge would be in error if Ancio applied, but submitted (1) that by entertaining the Ancio issue the Supreme Court of Canada would be hearing an appeal on an issue in respect of which no leave was granted; (2) that if Ancio was applied s. 613(1)(b)(iii) of the Criminal Code applied to cure the error; or (3) if s. 613(1)(b)(iii) was not applied the court should substitute a conviction for the included offence of causing bodily harm with intent to endanger life.

The Supreme Court of Canada allowed the appeal. The court affirmed that Kienapple did not apply to preclude a conviction for attempted murder or the included offence of causing bodily harm with intent to endanger life. The court held that the law as stated in Ancio applied to the accused, because he was still in the judicial system when it was decided, where his conviction was not yet final. The court stated that since the accused was granted leave to appeal at large, he was entitled to raise the new question of law. The court held that the jury charge was in error and was not curable under s. 613(1)(b)(iii) where it was not clear that the accused would still have been convicted had the error not been made. The court set aside the attempted murder conviction and substituted a conviction for causing bodily harm with intent to endanger life, contrary to s. 228(b).

Criminal Law - Topic 76

Res judicata - Multiple convictions for same subject matter precluded - General - An accused pleaded guilty to break, enter and robbery - The accused was also charged with attempted murder where the robbery victim was severely injured - The Supreme Court of Canada held that the rule in Kienapple did not preclude a conviction for attempted murder or the included offence of causing bodily harm with intent to endanger life - The court held that there was not a sufficient factual and legal nexus between the charges; they did not arise from the same "cause", "matter" or "delict" and there was not sufficient proximity between the offences charged - The court held that there was no overlapping of the essential elements of the two offences; that the only common element was violence and the required specific intents were different - See paragraphs 17 to 18.

Criminal Law - Topic 1263

Murder - Intent or mens rea - The Supreme Court of Canada reaffirmed that the requisite mens rea for attempted murder was the specific intent to kill.

Criminal Law - Topic 4862

Appeals - Indictable offences - Grounds of appeal - Where law changed after trial but before appeal heard - The jury charge in the accused's 1981 trial for attempted murder was based on the law as set out by the Supreme Court of Canada - The accused unsuccessfully appealed to the British Columbia Court of Appeal - The accused obtained leave to appeal at large to the Supreme Court of Canada - Before the appeal was heard, the Supreme Court of Canada overruled its earlier decision - Therefore, if the recent decision applied to the accused's case, the jury charge was in error - The Supreme Court of Canada held that the accused was entitled to raise the new ground of appeal on the basis of the "new" law, because he was still in the judicial system when the law was changed - His conviction was not final where his appeals were not exhausted - The court noted that since the accused was granted leave to appeal at large, he was not precluded from raising the new issue on appeal - The court stated that the rationale for applying the change in the law was that an accused should not be convicted on the basis of an interpretation of a statute which, at the appropriate time, was known to be wrong - See paragraphs 19 to 33.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscarriage of justice - Where jury charge in error - An accused was convicted of attempted murder - The jury charge on the mens rea required was in error - The Supreme Court of Canada refused to invoke s. 613(1)(b)(iii) of the Criminal Code to dismiss the appeal, where it was not clear that the jury would still have convicted the accused had they been properly instructed - See paragraph 35.

Criminal Law - Topic 9085

Appeals to Supreme Court of Canada - Appeals with leave - Appeals at large - Scope of - An accused was granted leave to appeal at large to the Supreme Court of Canada - The Supreme Court of Canada held that the accused was therefore not restricted in the issues he could raise on appeal - The court held that where the accused was convicted on the basis of an interpretation of the law which was overruled by the Supreme Court of Canada after the date of his trial but before his appeal was heard, the accused was entitled to raise the new issue on appeal.

Cases Noticed:

R. v. Lajoie, [1974] S.C.R. 399, refd to. [para. 1].

R. v. Ancio, [1984] 1 S.C.R. 225; 52 N.R. 161, appld. [para. 2].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, appld. [para. 3].

R. v. Sheppe, [1980] 2 S.C.R. 22; 31 N.R. 437, refd to. [para. 12].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119, appld. [para. 17].

Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 21].

Lizotte v. The King, [1951] S.C.R. 115, refd to. [para. 23].

R. v. Warner, [1961] S.C.R. 144, refd to. [para. 23].

R. v. Canadian Dredge and Dock Co. Ltd., [1985] 1 S.C.R. 662; 59 N.R. 241; 56 C.C.C.(2d) 576, refd to. [para. 23].

R. v. Caouette, [1973] S.C.R. 859, refd to. [para. 26].

R. v. Taylor, [1950] 2 K.B. 368, refd to. [para. 30].

R. v. Treanor (1939), 27 Cr. App. R. 35, refd to. [para. 31].

R. v. Hotte (1984), 13 W.C.B. 224, refd to. [para. 32].

R. v. Braun (1984), 12 W.C.B. 281 (Alta. C.A.), refd to. [para. 32].

R. v. Beaver (1984), 64 N.S.R.(2d) 158; 143 A.P.R. 158 (C.A.), refd to. [para. 32].

R. v. Bains and Grewal (1985), 7 O.A.C. 67, refd to. [para. 32].

R. v. Singh (Inderjit) (1985), 8 O.A.C. 100, refd to. [para. 32].

Czubak v. R., R.J.P.Q. 86-180 (C.A.), refd to. [para. 32].

R. v. Nantais, [1966] 4 C.C.C. 108 (Ont. C.A.), refd to. [para. 38].

R. v. Fyfe, [1968] 1 C.C.C. 295 (B.C.C.A.), refd to. [para. 38].

R. v. Ruggiero (1972), 9 C.C.C.(2d) 546 (Ont. C.A.), refd to. [para. 38].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 21(2) [para. 10]; sect. 24(1), sect. 212, sect. 213 [para. 1]; sect. 228, sect. 613(1)(b)(iii) [para. 16]; sect. 613(3) [para. 38]; sect. 618(1)(a), sect. 618(1)(b) [para. 25]; sect. 621(1)(a), sect. 621(1)(b) [para. 26].

Supreme Court Act, R.S.C. 1970, c. S-19, sect. 48 [para. 33].

Counsel:

Sheldon Goldberg, for the appellant;

Allan Stewart, Q.C., for the respondent.

This appeal was heard on February 6, 1986, before Dickson, C.J.C., Beetz, McIntyre, Chouinard, Lamer, Le Dain and La Forest, JJ., of the Supreme Court of Canada.

On April 9, 1987, the judgment of the Supreme Court of Canada was delivered by the Court.

Chouinard, J., did not take part in the judgment.

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