Present: Dickson C.J. and Beetz, McIntyre, Chouinard1, Lamer, Le Dain and La Forest JJ.
1 Chouinard J. took no part in the judgment.
on appeal from the court of appeal for british columbia
Criminal law ‑‑ Kienapple principle ‑‑ Accused convicted of breaking and entering and committing robbery, and of attempted murder ‑‑ Offences arising out of the same incident ‑‑ Whether rule against multiple convictions applicable to preclude conviction of attempted murder.
Criminal law ‑‑ Charge to jury ‑‑ Mens rea ‑‑ Attempted murder ‑‑Trial judge's charge relating to the required intent for attempted murder in accordance with the interpretation given by the Supreme Court of Canada in Lajoie ‑‑ Supreme Court changing in Ancio its interpretation on the requisite mental element for a conviction for attempted murder ‑‑ Ancio decision rendered after accused was granted leave to appeal at large to the Supreme Court of Canada ‑‑ Whether accused entitled to benefit from the new interpretation of the Criminal Code given in Ancio ‑‑ Scope of leave to appeal ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 212(a), 618(1)(b).
Criminal law ‑‑ Appeal from conviction ‑‑ Error in trial judge's charge to jury concerning the necessary intent for a conviction for attempted murder ‑‑ Appeal against conviction for attempted murder dismissed and conviction for an included offence substituted ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 228(b), 613(1)(b)(i), (iii), (3).
In 1981, appellant pleaded guilty to breaking and entering and committing robbery, and he was later charged with attempted murder. The second offence took place during the breaking and entering incident. The victim was brutally beaten and suffered severe injuries. She would likely have died without treatment. The trial judge charged the jury that appellant could be convicted of attempted murder if he had an intention to kill or an intention to cause bodily harm knowing that death may result and being reckless whether death ensues or not. This charge was in accordance with Lajoie v. The Queen, [1974] S.C.R. 399. Appellant was convicted. On appeal from his conviction, appellant invoked the rule against multiple convictions enunciated in the Kienapple case, [1975] 1 S.C.R. 729, and alleged that having pleaded guilty to breaking and entering and robbery, he should not have been tried again for attempted murder arising out of the same set of circumstances. The Court of Appeal held that the Kienapple principle did not apply and dismissed the appeal. The appellant was then granted leave to appeal at large to this Court. At the hearing, he indicated that he intended to rely also on the Ancio case, [1984] 1 S.C.R. 225. The Ancio decision, which was rendered after appellant obtained leave to appeal to this Court, overruled Lajoie and held that the mens rea for attempted murder was the specific intent to kill. The Court adjourned the hearing to permit both parties to file factums on the new issue. At the new hearing, both the Kienapple issue and the Ancio issue were argued. The Crown conceded that the trial judge's charge was an error of law if Ancio were to be applied, but it contended that (1) to entertain the Ancio issue would be to hear an appeal on an issue in respect of which no leave has been granted; (2) if leave should be granted, the proviso in s. 613(1)(b)(iii) of the Criminal Code should in any event be applied in so far as it may be grounded in an attack on the judge's charge to the jury; and (3) should this Court not apply the proviso in s. 613(1)(b)(iii) of the Code to this appeal, it should substitute conviction for an offence under s. 228 of the Code.
Held: The appeal should be dismissed but the conviction at trial for the offence of attempted murder should be substituted by a conviction for the included offence of causing bodily harm with intent to endanger life.
(1) The Kienapple Issue
The Kienapple principle has no application in this case. For the Kienapple rule to apply, there must be both a factual and legal nexus between the charges. Multiple convictions are only precluded under the Kienapple principle if they arise from the same "cause", "matter", or "delict", and if there is sufficient proximity between the offences charged. This requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element contained in the offence for which a conviction is sought to be precluded by the Kienapple principle. In the case at bar, the offence of attempted murder involved the appellant's striking the victim with intent to kill or, at that time, with intent to cause bodily harm, knowing it to be likely to cause death and being reckless whether death ensued or not. The elements of the offence of breaking and entering and committing robbery involved breaking and entering the apartment, taking jewellery and money, and using violence. There is no overlapping of the essential elements of the two offences, the only common element is violence, and the required specific intents are clearly different.
(2) The Ancio Issue
Provided that he is still in the judicial system, an accused charged with an offence is entitled to have his culpability determined on the basis of what is held to be the proper and accurate interpretation of the Criminal Code . This test affords a means of striking a balance between the impractical dream of providing perfect justice to all those convicted under the overruled authority and the practical necessity of having some finality in the criminal process. Finality in criminal proceedings is of the utmost importance, but it is adequately served by the normal operation of res judicata. Thus a person convicted under Lajoie will not be able to reopen his or her case, unless the conviction is not final.
The fact that appellant's factum filed in support of his motion for leave and the oral argument at the hearing of the motion related solely to the Kienapple issue does not preclude him from invoking Ancio. Leave to appeal to this Court was not limited to the Kienapple issue but was granted without any restriction. The appellant became entitled to bring into question the validity of his conviction on any question of law at a time when this Court had just reversed its own interpretation of attempted murder. The appellant is thus entitled to invoke the new question of law raised by reason of Ancio in accordance with s. 618(1)(b) of the Code. He has established that he was "in the system" since he still had an appeal pending before this Court when Ancio was released.
It is common ground that the charge to the jury did not conform to Ancio. The curative provision of s. 613(1)(b)(iii) of the Code cannot be used to save the attempted murder conviction since it is not clear that the jury would have convicted the appellant of this offence if instructed that the necessary intent was the intent to kill. The appeal should be dismissed but a conviction for the included offence of causing bodily harm with intent to endanger life, contrary to s. 228(b) of the Code, should be substituted pursuant to s. 613(1)(b)(i) and s. 613(3) of the Code. This included offence was put to the jury but no verdict was rendered on it as the jury found the appellant guilty of attempted murder. Since the jurors convicted on the basis of one of the two mental elements put to them in the trial judge's charge, it follows that they would also have convicted the appellant of the offence under s. 228(b).
Finally, the analysis of the Kienapple issue is equally applicable in respect of the s. 228(b) offence. The intent required under s. 228(b) is an aggravated intent distinct and additional to that which would suffice for a conviction of breaking and entering and robbery.
Cases Cited
Applied: R. v. Prince, [1986] 2 S.C.R. 480; R. v. Ancio, [1984] 1 S.C.R. 225; distinguished: Kienapple v. The Queen, [1975] 1 S.C.R. 729; considered: R. v. Taylor, [1950] 2 K.B. 368; R. v. Caouette, [1973] S.C.R. 859; referred to: Lajoie v. The Queen, [1974] S.C.R. 399; R. v. Treanor (1939), 27 Cr. App. Rep. 35; R. v. Warner, [1961] S.C.R. 144; Canadian Dredge & Dock Co. v. The Queen, [1985] 1 S.C.R. 662; Canadian Dredge & Dock Co. v. The Queen (1981), 56 C.C.C. (2d) 576 (sub nom. R. v. McNamara); Lizotte v. The King, [1951] S.C.R. 115; R. v. Nantais, [1966] 4 C.C.C. 108; R. v. Fyfe, [1968] 1 C.C.C. 295; R. v. Ruggiero (1972), 9 C.C.C. (2d) 546; Sheppe v. The Queen, [1980] 2 S.C.R. 22; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; R. v. Hotte (1984), 13 W.C.B. 224; R. v. Braun (1984), 12 W.C.B. 281; R. v. Beaver (1984), 64 N.S.R. 158; R. v. Bains and Grewal (1985), 7 O.A.C. 67, leave to appeal refused, [1985] 1 S.C.R. v; R. v. Singh (Inderjit) (1985), 8 O.A.C. 100; Czubak c. La Reine, R.J.P.Q., 86‑180.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 21, 212(a), 228, 613(1)(b)(i), (iii), (3), 618(1)(a), (b) [am. 1974‑75‑76, c. 105, s. 18], 621(1)(b).
Supreme Court Act, R.S.C. 1970, c. S‑19, s. 48.
APPEAL from a judgment of the British Columbia Court of Appeal (1983), 6 C.C.C. (3d) 289, dismissing the accused's appeal from his conviction for attempted murder. Appeal dismissed, but the conviction at trial for the offence of attempted murder should be substituted by a conviction for the included offence of causing bodily harm with intent to endanger life.
Sheldon Goldberg, for the appellant.
Allan Stewart, Q.C., for the respondent.
The following is the judgment delivered by
1. The Court‑‑In 1974, in Lajoie v. The Queen, [1974] S.C.R. 399, this Court, speaking through Martland J., held that when s. 24(1) of the Criminal Code referred to "an intent to commit an offence" in relation to murder, it meant an intention to commit that offence in any of the ways provided for under s. 212 or s. 213 of the Code. The effect of the decision was that on an attempted murder charge the Crown could succeed, insofar as the mental element of the crime was concerned, on proving beyond reasonable doubt that the accused either (i) meant to cause death or (ii) meant to cause bodily harm that the accused knew was likely to cause death and was reckless whether death ensued or not.
2. Some ten years later in R. v. Ancio, [1984] l S.C.R. 225, the majority of the Court, speaking through McIntyre J., held that Lajoie should no longer be followed, that the mens rea for attempted murder was the specific intent to kill. A mental element falling short of that level might well lead to conviction for another offence, for example, one of the aggravated forms of assault, but not conviction for an attempted murder.
3. In 1981, during the period between the 1974 judgment in Lajoie and the 1984 judgment in Ancio, the appellant Gerald Michael Wigman was tried and convicted before a judge and jury of attempting to murder one Margaret Hill by beating her. The judge charged that the accused could be convicted if the jury found he had either of the two intents mentioned. That was the law according to Lajoie. It was an error of law however if Ancio is applied, as the Crown concedes. The appellant, whose conviction is now under review in this Court, says he is entitled to the benefit of Ancio. The Crown says he is not. That is the first and primary issue in this appeal. A second point arises as to the possible application of the so‑called Kien‑ apple principle, found in Kienapple v. The Queen, [1975] l S.C.R. 729.
I
The Facts and the Trial
4. Mr. Wigman was charged with three counts of breaking and entering and robbery in an indictment dated October 26, 1981. Count #2 related to an apartment in the City of Vancouver in which Mrs. Margaret Hill resided. Mr. Wigman pleaded guilty to all three charges before Toy J. of the British Columbia Supreme Court.
5. On October 30, 1981, Mr. Wigman was charged with an attempted murder that took place during the break and enter incident cited in Count #2. Mrs. Hill, a 69 year old woman, lived alone in a ground floor apartment. She went to bed at 8:30 p.m. on May 16, 1981. A neighbour found her lying on the floor of her bedroom the next day at 4:00 p.m. and it was evident that she had suffered very severe injuries. The apartment was "an awful mess". A number of items had been taken. The telephone cord had been cut. Medical evidence indicated that she had been struck on the head at least six times and had enormous bruises on other parts of her body. She would likely have died without treatment. The fingerprints of the accused were found in the apartment.
6. The charge was heard by Toy J. and a jury. At the opening of the trial the accused, by his counsel, admitted that he, the accused, gained entry to Mrs. Hill's apartment by removing a sliding door from the apartment balcony, and that he stole various items of jewellery and a sum of money. There was no reference during the trial to Mr. Wigman's prior guilty plea to the break and enter charge. Nor was reference made to the Kienapple argument that the accused could not be convicted of both the robbery charge and the attempted murder charge, the violence being common to both.
7. Mr. Wigman's defence to the attempted murder charge was that he had been accompanied by a person called "Dave" who had assaulted and severely beaten Mrs. Hill.
8. The judge charged the jury as to the requisite intent for attempted murder as follows:
. . . you can go either route, an intention to kill or an intention to cause bodily harm knowing that death may result and being reckless whether death ensues or not.
Words giving the jury the choice of two intents were repeated many times in the charge of the jury. This charge was in accordance with Lajoie, but it now conflicts with Ancio.
9. Toy J. left with the jury two included offences to the attempted murder charge: (1) causing bodily harm with intent to endanger life; and (2) assault causing bodily harm. The jury retired to deliberate at 5:12 p.m. on November 6, 1981 and returned at 5:28 p.m. on November 7, 1981 with a verdict of guilty of attempted murder.
10. The judge noted upon sentencing that the testimony of the accused that a "Dave X" had administered the beatings without the knowledge or agreement of the accused was rejected by the jury in whole or in part, although it could not be said whether the jury found Mr. Wigman guilty as a principal, or as a party to a common purpose pursuant to s. 21(2) of the Criminal Code . We would add that it cannot be said with certainty whether the jury found that Mr. Wigman meant to cause death or that he had the lesser and now irrelevant intent, namely, that of meaning to cause bodily harm that he knew was likely to cause death or was reckless whether death ensued or not.
11. On December 4, 1981, Toy J. sentenced the appellant to ten years in prison with respect to the charge of breaking and entering and committing robbery, and to life imprisonment with respect to the conviction on the charge of attempted murder.
II
The Court of Appeal of British Columbia
12. Mr. Wigman, having obtained new counsel, appealed to the Court of Appeal of British Columbia against his conviction for attempted murder. His counsel took as his main point that the accused, having pleaded guilty to breaking and entering, and robbery, should not have been tried again for attempted murder arising out of the same set of circumstances. This is the Kienapple issue. The Court was of the opinion that the principle did not have any application to the facts in this case. In a decision reported at (1983), 6 C.C.C. (3d) 289, Hutcheon J.A. reviewed a number of the authorities canvassed in Sheppe v. The Queen, [1980] 2 S.C.R. 22, and the statement of Laskin C.J., at p. 27:
In Kienapple v. The Queen, supra, this Court was concerned with a single act which gave rise to two different offences, and it held that multiple convictions could not be supported for the same delict or for the same cause or matter or where the same or substantially the same elements entered into two different offences.
Hutcheon J.A. concluded at p. 292 that the correct view of the matter was set out in the Crown's argument:
The breaking and entering and robbery involved the accused entering the victims [sic] apartment, taking the woman's jewellery and money and using violence. The offence of attempted murder involved the accused striking the woman with one of the two intents set out in s. 212 (a) of the Criminal Code , or at the very least, involved the accused in that he was a party to such an offence, pursuant to section 21(2) and section 212(a).
Hutcheon J.A. held that on the facts in the case there were two offences involving the same violence, but he had no difficulty in reaching the conclusion that different factual and legal elements underlay the two offences.
III
The Supreme Court of Canada
13. Mr. Wigman applied to this Court for leave to appeal which was granted on December 15, 1983 by a panel consisting of Laskin C.J. and Dickson and Estey JJ., [1983] 2 S.C.R. xv. Leave was granted at large, that is to say the leave was not confined to any specified point or points. The order granting leave to appeal reads:
UPON APPLICATION by counsel on behalf of the Applicant for an Order granting leave to appeal from the judgment of the Court of Appeal for British Columbia dated the 28th day of June, 1983, and upon hearing what was alleged by counsel on behalf of the Applicant as well as the Respondent on the 5th day of December, 1983;
IT IS ORDERED that leave to appeal be granted.
14. In a factum filed on June 25, 1984, the appellant set out the issues proposed to be argued:
THAT the Appellant having pleaded guilty to Breaking and Entering and Robbery should not have been tried again for Attempted Murder, arising out of the same set of circumstances;
THAT the Trial Judge erred in not determining and/or in failing to permit the jury to determine whether the Attempted Murder went beyond the facts disclosed by the Breaking and Entering and Robbery;
THAT the Appellant having been sentenced to imprisonment for 10 years for Breaking and Entering and Robbery should not have been sentenced again for Attempted Murder;
THAT the Court of Appeal erred in finding that the two convictions arising from the same violence should stand and that Kienapple v. The Queen (1974), 15 C.C.C. (2nd) 524 had no application to the facts of this case.
15. The appeal was scheduled to be heard on the morning of November 6, 1985. Shortly before the Court convened that morning, counsel for the appellant told counsel for the Crown that he intended to raise the R. v. Ancio issue. When the Court opened, counsel made this known to the Court. Crown counsel objected on the ground that he had had no warning of opposing counsel's intention to argue Ancio and that the Crown was not in a position to respond to any such argument. The Court accordingly adjourned the hearing to permit counsel for the appellant to prepare a written submission on the Ancio issue and to afford Crown counsel an opportunity to respond. Supplementary factums were filed.
16. On the renewed hearing of the appeal, both the Kienapple issue and the Ancio issue were argued. The Crown makes three submissions. It contends that to entertain the Ancio issue would be to hear an appeal on an issue in respect of which no leave has been granted. It contends further that if leave should be granted, the proviso in s. 613(1)(b)(iii) of the Criminal Code should in any event be applied in so far as it may be grounded in an attack on the judge's charge to the jury. Finally, it is contended that, should this Court not apply the proviso in s. 613(1)(b)(iii) of the Code to this appeal, it should substitute conviction for an offence under s. 228 of the Code as it stood on the date of the offence.
IV
The Kienapple Issue
17. We agree with the conclusion of the British Columbia Court of Appeal that the Kienapple principle has no application and that Mr. Wigman could be convicted of the two offences in question. In view of the extensive review undertaken in R. v. Prince, [1986] 2 S.C.R. 480, it is sufficient to simply reiterate that a two‑part test must be met for the Kienapple rule to apply: there must be both a factual and legal nexus between the charges. Multiple convictions are only precluded under the Kienapple principle if they arise from the same "cause", "matter", or "delict", and if there is sufficient proximity between the offences charged. This requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.
18. In the case at bar, the offence of attempted murder involved the appellant striking Mrs. Hill with intent to kill or, at that time, with intent to cause bodily harm, knowing it to be likely to cause death and being reckless whether death ensued or not. The elements of the offence of breaking and entering and committing robbery involved breaking and entering the apartment, taking jewellery and money, and using violence. There is no overlapping of the essential elements of the two offences, the only common element is violence, and the required specific intents are clearly different. The Kienapple principle does not apply and the appellant must fail on this point.
V
The Ancio Issue
19. As already indicated, the Ancio decision had not yet been released at the time the appellant sought and obtained leave to appeal.
20. The appellant, however, submits that the charge of the trial judge to the jury conflicts with the new interpretation of the Criminal Code given in Ancio. The inadequacy of the charge in this respect is not in doubt, as is conceded by the Crown. The main point in issue is whether the appellant can invoke what is now considered to be the correct interpretation of the Code.
21. The appropriate test is whether or not the accused is still in the judicial system. As expressed in the Crown's factum, this test affords a means of striking a balance between the "wholly impractical dream of providing perfect justice to all those convicted under the overruled authority and the practical necessity of having some finality in the criminal process". Finality in criminal proceedings is of the utmost importance but the need for finality is adequately served by the normal operation of res judicata: a matter once finally judicially decided cannot be relitigated. Thus a person convicted under Lajoie will not be able to reopen his or her case, unless, of course, the conviction is not final. In the Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 757, the Court observed that res judicata would even preclude the reopening of cases decided by the courts on the basis of constitutionally invalid laws. The res judicata principle would apply with at least as much force to cases decided on the basis of subsequently overruled case law.
22. The Crown, however, argues that Mr. Wigman ought not to be able to benefit from Ancio. Counsel for the Crown contends that the appellant was granted leave exclusively on the Kienapple rule since the factum filed in support of his motion for leave and the oral argument at the hearing of the motion were all related solely to this argument.
23. The flaw in the Crown's proposition is that it does not make any distinction between the leave to appeal being limited to certain issues and the same leave being granted at large. It is clear that the Court is empowered to restrict an appeal to certain specific issues: Lizotte v. The King, [1951] S.C.R. 115, at pp. 117‑18; R. v. Warner, [1961] S.C.R. 144, at pp. 147‑48; Kienapple, supra, at p. 732; and Canadian Dredge & Dock Co. v. The Queen, [1985] 1 S.C.R. 662, at p. 669; (1981), 56 C.C.C. (2d) 576 (sub nom. R. v. McNamara). In such cases, the Supreme Court is without jurisdiction to hear arguments dealing with issues other than the ones enumerated on the order granting leave to appeal: Lizotte, supra, at p. 133; Warner, supra, at p. 151; Kienapple, supra, at p. 732; and Canadian Dredge & Dock Co., supra, at p. 671. However, the situation is different when the right of appeal has not been restricted to a specific question of law. The appellant is then entitled to raise additional questions of law, subject to the discretion of the Court for instance, not to decide a case on the basis of an issue tardily raised.
24. In this regard, s. 618(1)(b) of the Code, which governs the right to appeal in this case, should be quoted in the context of the whole section:
618. (1) A person who is convicted of an indictable offence and whose conviction is affirmed by the court of appeal may appeal to the Supreme Court of Canada
(a) on any question of law on which a judge of the court of appeal dissents, or
(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada within twenty‑one days after the judgment appealed from is pronounced or within such extended time as the Supreme Court of Canada or a judge thereof may, for special reasons, allow. [Emphasis added.]
25. The difference in the wording between s. 618(1)(a) and (b) is significant. The respondent's argument would require this Court to construe s. 618(1)(b) as if it read:
618. (1) A person who is convicted of an indictable offence and whose conviction is affirmed by the court of appeal may appeal to the Supreme Court of Canada
(a) on any question of law on which a judge of the court of appeal dissents, or
(b) on any question of law on which leave to appeal is granted by the Supreme Court of Canada within twenty‑one days after the judgment appealed from is pronounced or within such extended time as the Supreme Court of Canada or a judge thereof may, for special reasons, allow. [Emphasis added.]
26. That this cannot be the correct interpretation when leave to appeal has been granted at large is well illustrated in R. v. Caouette, [1973] S.C.R. 859, which involved the scope of s. 621(1)(b), the counterpart of s. 618(1)(b) for the Crown:
621. (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 603 or 604 or dismisses an appeal taken pursuant to paragraph 605(1)(a) or subsection 605(3), the Attorney General may appeal to the Supreme Court of Canada
(a) on any question of law on which a judge of the court of appeal dissents, or
(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada within twenty‑one days after the judgment appealed from is pronounced or within such extended time as the Supreme Court of Canada or a judge thereof may, for special reasons, allow.
(As it then read.)
27. In that case, the Crown asserted an appeal as of right, based on the questions of law on which there had been a dissent, against the acquittal of Caouette by the Court of Appeal. The Crown however also obtained leave to appeal under s. 621(1)(b) "on any question of law". After having stated that the jurisdiction of the Supreme Court was the threshold question in the appeal, Laskin J., as he then was, dissenting on another point, expressed the following comments at p. 881 on the Crown's right of appeal after leave has been granted at large:
This leave ... must, in my understanding, be taken to relate to any question of law that goes to the validity of the verdict of acquittal; it cannot be construed to refer to a question of law whose correct resolution would not affect the result reached by the majority of the Quebec Court of Appeal. The unlimited character of the leave makes it necessary to determine what were the grounds upon which the Quebec Court of Appeal set aside the conviction herein and to consider the grounds urged in this Court against the acquittal; in this latter respect there is no restriction to the grounds upon which the Quebec Court of Appeal proceeded. [Emphasis added.]
(See also the comments of the majority at pp. 868‑69.)
28. For reasons of fairness, the Court is reluctant to decide a case on a basis which was not argued by the parties and upon which the provincial courts have not spoken. This is a far cry, however, from suggesting that any issue not contained in the leave application which may tend to support acquittal or conviction is beyond the reach of the Court. For example, let us suppose that Ancio had never been heard or decided by the Court and Wigman had proceeded to be argued solely on the Kienapple issue. It would have been open to the Court to ask for additional argument on the correctness of the Court's decision in Lajoie. The Court can, and not infrequently does, raise issues which did not attract the interest of the parties at the time of the leave application. In short, this case arose while avenues of redress from the judgment were still open to the accused ‑‑ it was still "in the system" so to speak. The possibility for an appellant to raise a new question of law should, however, be subject to counsel for the opposing party being given notice that the point will be raised and sufficient opportunity to respond, which was assured in the present case by granting the adjournment requested.
29. Provided that he is still in the system, an accused charged with an offence is entitled to have his or her culpability determined on the basis of what is held to be the proper and accurate interpretation of the Code. The same reasoning was inevitably though implicitly adopted in Ancio. Obviously, the respondent Ancio was still in the system; once it is established in the case at bar that the appellant is still in the system, then the rationale for applying to him the ruling in Ancio is the same as the one which was taken for granted in Ancio with respect to the respondent Ancio.
30. This rationale is grounded in the principle that an accused should not be convicted on the basis of the interpretation of a statute which, at the appropriate time, is known to be wrong. An apt expression of this principle can be found in the following passage written by Lord Goddard C.J. on behalf of the full Court of Criminal Appeal in R. v. Taylor, [1950] 2 K.B. 368, at p. 371:
This court ... has to deal with questions involving the liberty of the subject, and if it finds, on reconsideration, that, in the opinion of a full court assembled for that purpose, the law has been either misapplied or misunderstood in a decision which it has previously given, and that, on the strength of that decision, an accused person has been sentenced and imprisoned it is the bounden duty of the court to reconsider the earlier decision with a view to seeing whether that person had been properly convicted.
31. Taylor was a bigamy case where the Court of Criminal Appeal reconsidered its previous interpretation of the statutory defence of seven years absence available to a "Person Marrying a Second Time", given in the R. v. Treanor case (1939), 27 Cr. App. Rep. 35. The above‑quoted passage is directed at the limits of the doctrine of stare decisis but it also explains why the new and presumably correct interpretation of an offence‑creating statute should be applied to the accused who is still before the court when the correct interpretation is rendered.
32. This rationale was recently followed in R. v. Hotte (1984), 13 W.C.B. 224, in a decision almost identical to the case at bar. On October 21, 1982, Hotte was convicted at trial of attempted murder. The trial judge had charged himself that the intent required to be proven by the Crown was that specified in either s. 212(a)(i) or s. 212(a)(ii) of the Code. Prior to the appeal against conviction being heard before the Court of Appeal of Alberta, this Court released its judgment in Ancio. Laycraft J.A., speaking for the Court of Appeal, came to the conclusion that, as a consequence of the interpretation given in Ancio, the appellant had been wrongly convicted of attempted murder, and he set aside the conviction on this charge. On the evidence of the case and on the findings made by the trial judge, however, Laycraft J.A., pursuant to s. 613 of the Code, substituted a conviction for the included offence of causing bodily harm with intent to wound, maim or disfigure, under s. 228 of the Code, as it then stood. Hotte is only one of several decisions wherein different courts of appeal have consistently applied Ancio to convictions entered prior to the ruling of this Court: see R. v. Braun (1984), 12 W.C.B. 281 (Alta. C.A.); R. v. Beaver (1984), 64 N.S.R. 158 (C.A.); R. v. Bains and Grewal (1985), 7 O.A.C. 67, leave to appeal refused, [1985] l S.C.R. v; R. v. Singh (Inderjit) (1985), 8 O.A.C. 100, and Czubak c. La Reine, R.J.P.Q., 86‑180 (C.A.)
33. We should finally add that the possibility for the appellant to raise the new interpretation given in Ancio is consistent with the power of this Court, in s. 48 of the Supreme Court Act, R.S.C. 1970, c. S‑19, to resort to its general discretion to order a new trial when "the ends of justice seem to require it".
VI
Conclusion
34. The determinative factor in the case at bar is that the appellant became entitled to bring into question the validity of his conviction on any question of law at a time when this Court had just reversed its own interpretation of attempted murder. The appellant is thus entitled to invoke the new question of law raised by reason of Ancio in accordance with s. 618(1)(b) of the Code. He has established that he was "in the system" since he still had an appeal pending before this Court when Ancio was released.
35. It is common ground that the charge to the jury did not conform to Ancio. The curative provision of s. 613(1)(b)(iii) cannot be used since it is not clear that the jury would have convicted Mr. Wigman of attempted murder if instructed that the necessary intent was the intent to kill. Firstly, it cannot be determined with any degree of certainty that the jury completely rejected Mr. Wigman's story that "Dave" was the person who administered the beating. The jury may have found that Mr. Wigman was a party to the offence committed by "Dave". Secondly, in spite of the savagery of the attack, it cannot be concluded that the jury found or ought to have found that the attacker had the intent to kill rather than the intent to inflict bodily harm which he knew was likely to cause death.
36. Nonetheless, the Crown has indicated that it would be satisfied with the substitution of a conviction for the included offence of causing bodily harm with intent to endanger life, contrary to s. 228 of the Code as it read at the material time:
228. Every one who, with intent
(a) to wound, maim or disfigure any person,
(b) to endanger the life of any person, or
(c) to prevent the arrest or detention of any person,
discharges a firearm, air gun or air pistol at or causes bodily harm in any way to any person, whether or not that person is the one mentioned in paragraph (a), (b) or (c), is guilty of an indictable offence and is liable to imprisonment for fourteen years.
37. This included offence was put to the jury, but of course no verdict was rendered on it since the jury found Mr. Wigman guilty of attempted murder. The two mental elements put to the jury in the trial judge's charge on attempted murder were (i) the intent to kill, and (ii) the intent to cause bodily harm that he knows is likely to cause death and is reckless whether death ensues or not. Since the jurors convicted on the basis of one of these two mental elements, it follows that they would also have convicted Mr. Wigman of the offence under s. 228. The previous comments on the Kienapple rule are equally applicable in respect of the s. 228(b) offence. The intent required under s. 228(b) is an aggravated intent distinct and additional to that which would suffice for a conviction of breaking and entering and robbery.
38. Accordingly, we would, pursuant to s. 613(1)(b)(i) and s. 613(3), dismiss the appeal but substitute a conviction for the included offence of causing bodily harm with intent to endanger life (s. 228 of the Criminal Code ); see R. v. Nantais, [1966] 4 C.C.C. 108 (Ont. C.A.); R. v. Fyfe, [1968] 1 C.C.C. 295 (B.C.C.A.); R. v. Ruggiero (1972), 9 C.C.C. (2d) 546 (Ont. C.A.); R. v. Hotte, supra, and R. v. Singh (Inderjit), supra.
39. The case should be remitted to the Supreme Court of British Columbia for sentencing.
Appeal dismissed.
Solicitor for the appellant: Sheldon Goldberg, Vancouver.
Solicitor for the respondent: The Ministry of the Attorney General of British Columbia, Vancouver.
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