Bingham v. R., [1971] SCR 369

Supreme Court of Canada

Bingham v. R., [1971] S.C.R. 369

Date: 1970-10-06

Clifford Bingham Appellant;

and

Her Majesty The Queen Respondent.

1970: February 25, 26, 27; 1970: October 6.

Present: Fauteux, Martland, Judson, Ritchie and Spence JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Criminal law—Evidence—Habitual criminal—Preventive detention—Evidence concerning charge in which appellant acquitted—Evidence admissible at hearing in respect of sentence of preventive detention—Criminal Code, 1953-54 (Can.), c. 51, s. 660.

Following his conviction upon a charge of breaking and entering and theft, the appellant, who had fifteen previous convictions, was found to be an habitual criminal and sentenced to preventive detention. At the hearing in respect of the sentence of preventive detention, the trial judge admitted evidence given, before him, by two witnesses one of whom gave evidence as to having been awakened

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one early morning by the sound of glass breaking in the entrance door of his shop and who found N, a man with an extensive criminal background, at the cash register and then encountered the appellant. The latter was acquitted in respect of that incident, and it was submitted that this evidence should be expunged on the ground that it related to a matter in respect of which the appellant had been acquitted and which was, therefore, res judicata. The Court of Appeal affirmed the finding that the appellant was an habitual criminal and the sentence of preventive detention. The accused appealed to this Court.

Held: The appeal should be dismissed.

The trial judge properly found that the appellant had not attempted to rehabilitate himself after his last release from prison, prior to the commission of the primary offence, and properly found that he was an habitual criminal. On the facts of this case, the trial judge was warranted in holding that it was expedient, for the protection of the public, to impose a sentence of preventive detention. The admission of the evidence of the two witnesses, which was introduced only to establish the appellant’s association with N, a fact which was later conceded by counsel at the trial, was not a sufficient basis for ordering a new trial in the present case.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division, affirming a sentence of preventive detention. Appeal dismissed.

J. F. Pecover, for the appellant.

B.A. Crane, for the respondent.

The judgment of the Court was delivered by

MARTLAND J.—This is an appeal from the unanimous judgment of the Appellate Division of the Supreme Court of Alberta dismissing the appellant’s appeal from the decision at trial, which, after finding that the appellant was an habitual criminal, imposed upon him a sentence of preventive detention. This sentence was in lieu of a term of. six years’ imprisonment, imposed upon him on June 7, 1967, following his conviction upon a charge of breaking and entering and theft.

The appellant, who was born on March 12, 1928, committed a considerable number; of

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offences over a period of time commencing in the year 1948 up to the commission of the primary offence in 1966. The list of his convictions is as follows:

1948, October 29th, Winnipeg, Manitoba, theft, 2 months.

1949, January 7th, Winnipeg, Manitoba, shop breaking and theft, 1 year.

1951, June 12th, Winnipeg, Manitoba, fraud, 2 years suspended sentence.

1952, August 8th, Winnipeg, Manitoba, nine charges of fraud, six months on each charge concurrent; a second charge of breach of recognizance, 3 months consecutive.

1953, July 20th, Winnipeg, Manitoba, two charges of fraud, 26 months concurrent, and a further five charges of fraud, 6 months concurrent.

1955, July 18th, High Prairie, Alberta, four charges of obtaining by false pretences, 6 months concurrent.

1956, April 12th, Edmonton, Alberta, attempted theft, 3 months.

1956, June 21st, Edmonton, Alberta, attempted breaking and entry, 2 years.

1958, April 10th, Calgary, Alberta, two charges of obtaining by false pretences and two charges of uttering forged documents, 2 years concurrent.

1958, July 15th, Prince Albert, Saskatchewan, two charges of uttering forged documents, 1 year, concurrent with the sentence dated April 10th, 1958.

1959, November 3rd, Edmonton, Alberta, breaking and entry with intent, 2 years.

1961, November 17th, Edmonton, Alberta, possession of stolen property, three charges of forgery and three charges of uttering, three and a half years concurrent.

1964, obtaining by false pretences and theft Under fifty dollars, 2 years less 1 day, concurrent.

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1966, December 5th, Winnipeg, Manitoba, theft, 3 months.

1967, June 7th, Edmonton, Alberta, breaking and entering and theft, 6 years.

The Crown clearly established that the appellant, since attaining the age of 18 years, had, on more than three separate and independent occasions, been convicted of an indictable offence for which he was liable to imprisonment for five years or more, as required by s. 660 of the Criminal Code, and the learned trial judge so found. He then went on to consider the further requirement as to whether the Crown had established that the appellant “is leading persistently a criminal life.” After properly charging himself as to this requirement of s. 660, he made the following findings of fact:

1. The primary offence of breaking and entering, while not premeditated, could not be said to be a sudden yielding to temptation in the proper sense of that term.

2. The appellant left Fort Saskatchewan Gaol on February 12, 1966, on completion of his then sentence. The substantive offence was committed on March 3, 1966. On May 31, 1966, the appellant was not present in court for his trial. A warrant was issued for his arrest. While at large he was arrested and on December 5 was convicted on a charge of theft under $50.

3. The appellant was associated with one Nugent in the commission of the primary offence, and had admitted that, just prior to that time, he and Nugent had been living with one Tonner. Both Nugent and Tonner had extensive criminal backgrounds.

The learned trial judge properly found that the appellant had not attempted to rehabilitate himself after his last release from prison, prior to the commission of the primary offence, and properly found that he was an habitual criminal.

The next issue is as to whether, because of that finding, it was expedient for the protection of the public that the appellant be sentenced to preventive detention. The learned trial judge was of the

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opinion that the sentence should be imposed. After referring to s. 660(1) (b), which refers to this matter, he said:

The object of this section is to protect the public from people who have shown by their history that they are a menace, not just a nuisance to society, and when this situation is clear, the question is not one of punishment since that has proven to be a futile exercise, but rather it is a matter of putting them away, so to speak, for the protection of the public. In my opinion it is important that the public be protected from criminals, not only from crimes involving violence against the person, but as well from crimes against property, which are in themselves very serious.

The accused was sentenced to six years imprisonment on the substantive offence. No doubt the trial judge gave consideration to the matter of protecting the public in passing sentence. Nevertheless, I am satisfied from the accused’s history and conduct that he is a recidivist in crime and cannot be trusted in society. The public is not sufficiently safeguarded by the sentence and requires the additional protection resulting from a sentence of preventive detention. The Crown, I find has proven this ingredient and all other essential ingredients beyond a reasonable doubt and, therefore, has made out its case to support a sentence of preventive detention.

It was held in Poole v. The Queen[1], that, on the issue of the expediency of a sentence of preventive detention, this Court is entitled to substitute its opinion for that of the trial judge. Both in that case and in the later case of Mendick v. The Queen[2], the decision of the lower court to impose a sentence of preventive detention was reversed. It was stated, in the reasons of the majority in the Poole case, that the expediency of the sentence of preventive detention was a question of fact, or perhaps a question of mixed law and fact. Each of these cases was determined upon its own particular facts, as must any other case involving the question of the expediency of imposing a sentence of preventive detention.

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There is not much to be gained from a comparison of the facts of other cases. It may, however, be pointed out that in the Poole case it was found that there was some evidence of the appellant’s, trying to live a normal life. In Mendick, some point was made of the fact that out of 47 convictions, 27 related to unlawful possession and use of gasoline credit cards and that 23, involving a total sum of $249.95, resulted from “a single spree” extending over December 1964, and early January 1965. Reference was also made to the fact that his last employer would be willing to re-employ him upon his release. There was no similar evidence in the present case, and no witnesses were called on behalf of the appellant, who did not, himself, testify.

In my opinion, on the facts of this case, the learned trial judge was warranted in holding that it was expedient, for the protection of the public, to impose a sentence of preventive detention.

It was contended, on behalf of the appellant, that the learned trial judge had erred in admitting evidence given, before him, by Alfred Ernest Shepherd and Barbara Jean Shepherd, his wife, on the ground that it was tendered to prove an issue which was res judicata. When the appellant was tried in respect of the primary offence, of which he was convicted, he was also tried in respect of three other offences, two of these being:

(1) Theft with violence from Shepherd of $100.

(2) Breaking and entering the Beverly Hills Gift and Hobby Centre, of which Shepherd was the proprietor.

The appellant was acquitted in respect of these two charges, the court holding that, though the Crown had proved that he was probably guilty, guilt had not been established beyond a reasonable doubt. He was convicted on the other two charges, but successfully appealed against one of them. Evidence in respect of the two charges on which he was acquitted at trial was given by Mr. and Mrs. Shepherd.

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On the hearing in respect of the sentence of preventive detention, Shepherd gave evidence as to having been awakened in the early morning of March 3, 1966, by the sound of glass breaking in the entrance door of his shop. He said that he found a man at the cash register and that, after a struggle, held him to the floor. This man, he said, was Nugent. He then rose to encounter the appellant, whom he forced to the floor. Nugent escaped and returned later with another man, at which time the witness received a blow on the head. He identified the appellant in court.

Mrs. Shepherd gave an account of coming downstairs and finding her husband struggling with a man. She tried, unsuccessfully, to telephone the police. She did not identify the appellant or Nugent.

Shepherd’s evidence went in, without objection, but subsequently counsel for the appellant submitted that it should be expunged on the ground that it related to a matter in respect of which the appellant had been acquitted and which was, therefore, res judicata. This objection was not sustained.

The position taken by the Crown was stated, at trial, as follows:

My Lord, the proceedings in this case are not a re-trial of the person on the charge, the finding at the end of the substantive trial is final and there is no attempt being made to alter it. However, the associations of the accused at the time of the substantive offence remain relevant and the evidence may be reconsidered by Your Lordship to ascertain whether or not an association is proved notwithstanding the fact that in the trial the guilt of the accused in connection with the robbery itself was not proven.

It was later conceded by counsel for the appellant, in argument, at the conclusion of the evidence in respect of the sentence of preventive detention that the appellant was associating with Nugent on the night when the primary offence was committed. This concession was not made as a result of the admission of the Shepherds’ evidence, but for other reasons.

The effect of a verdict of acquittal in criminal proceedings was considered by the Privy Council

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in Sambasivam v. Public Prosecutor, Federation of Malaya[3]. Lord MacDermott, at p. 479, said:

The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication The maxim “Res judicata pro veritate accipitur” is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence.

In that case the accused had been tried on two charges, under the Emergency Regulations, 1948, of carrying a firearm and of being in possession of ammunition respectively. He was acquitted of the second charge, but a new trial was ordered on the first one.

At the second trial a statement of the accused was introduced which had not been in evidence at the first trial. If accepted as the truth, it went to prove his guilt on the second charge, of which he had been acquitted, as clearly as it would establish his guilt on the first charge. The statement was admitted and no intimation was given to the assessors of the fact that the accused had been acquitted on the second charge, and was, therefore, to be taken as innocent of that offence.

In view of these circumstances it was felt that the acquittal of the appellant on the charge of being in possession of ammunition was relevant to the consideration by the assessors in the second trial of the effect of this statement. It might have been a ground for excluding the statement in its entirety, because it could not have been severed satisfactorily. The result of the omission to refer to the acquittal on the second charge was that the Crown was enabled to rely upon the existence of facts in respect of which there had already been a contrary finding in favour of the accused.

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The situation in the present case is quite different. The learned trial judge was well aware of the appellant’s acquittal on two charges at the time the primary offence was tried. It was made clear to him that the purpose of introducing the evidence was only to establish the appellant’s association with Nugent, a fact which was later conceded. The learned trial judge made no reference whatever to the evidence of the Shepherds, but did refer to counsel’s admission. In my opinion the admission of that evidence is not a sufficient basis for ordering a new trial in the present case.

Counsel for the appellant also raised various technical objections to the validity of the present proceedings. In my opinion they lack substance and it is unnecessary, in these reasons, to deal with them further.

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Mustard & Pecover, Edmonton.

Solicitor for the respondent: The Attorney General for Alberta, Edmonton.