Luckett v. The Queen, [1980] 1 SCR 1140

Supreme Court of Canada

Luckett v. The Queen, [1980] 1 S.C.R. 1140

Date: 1980-01-29

William Eric Luckett Appellant;

and

Her Majesty The Queen Respondent.

1979: October 23; 1980: January 29.

Present: Ritchie, Pigeon, Dickson, Beetz, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Indictment for robbery—Conviction for common assault—Offence of common assault included in that of robbery as described in the enactment creating it—Criminal Code, 1970, ss. 302, 589(1).

The appellant, charged with robbery, was convicted of common assault pursuant to the provisions of s. 589 of the Criminal Code. On appeal, the conviction was upheld by a majority judgment of the British Columbia Court of Appeal, whereupon the appellant, with leave, appealed to this Court. The question in issue was whether the offence of common assault is included in that of robbery as described in the enactment creating it in the Criminal Code (s. 302).

Held: The appeal should be dismissed.

Robbery is one offence which can be committed in different ways and a reference to the relevant section is a reference to it in its entirety. The lesser offence must be included in the offence charged as described in the enactment, albeit not in all the subsections and “it is sufficient if the other offence is included in the enactment creating it” as was held in this case by the Court of Appeal, following its own decision in R. v. Brown (1959), 124 C.C.C. 127. This is consistent with the decision of this Court in The Queen v. McKenzie, [1972] S.C.R. 409, where it was held that an accused charged with theft without reference to a specific section, in that case s. 276(1), now s. 290(1), could be found guilty of theft committed in the way described in that section.

R. v. Springfield (1969), 53 Cr. App. R. 608, distinguished; R. v. Manuel (1960), 33 W.W.R. 406; R. v. Harmer and Miller (1976), 33 C.C.C. (2d) 17; R. v. Maika (1974), 27 C.R.N.S. 115; Fergusson v. The Queen, [1962] S.C.R. 229; R. v. George, [1960] S.C.R. 871, referred to.

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APPEAL from a judgment of the Court of Appeal for British Columbia[1], dismissing the appellant’s appeal from his conviction for common assault on an indictment for robbery. Appeal dismissed.

David Pendleton, for the appellant.

A.M. Stewart and William Smart, for the respondent.

The judgment of the Court was delivered by

CHOUINARD J.—Charged with robbery the appellant was found guilty of common assault. His conviction was upheld by a majority judgment of the Court of Appeal for British Columbia.

The question in issue is whether the offence of common assault is included in that of robbery as described in the enactment creating it in the Criminal Code.

“Included offences” are governed by s. 589 of the Code, para. (1) of which reads as follows:

589. (1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted

(a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved, or

(b) of an attempt to commit an offence so included.

As it appears, there are two circumstances under which an offence is included in another: it can be included in the offence “as described in the enactment creating it” or “as charged in the count”.

We are concerned here only with the first of these circumstances. It is not in dispute that common assault is not included in the offence as charged in the count which reads: Indictment: William Eric Luckett stands charged:

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That, at the City of Vancouver, County of Vancouver, Province of British Columbia, on the 23rd day of July, 1977, he unlawfully did commit robbery of Walter Leibel, of a quantity of cigarettes and approximately $4.00 in cash contrary to the form of the statute in such case made and provided and against the peace of our Lady the Queen her Crown and dignity.

Robbery is defined by s. 302 of the Criminal Code as follows:

302. Every one commits robbery who

(a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;

(b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;

(c) assaults any person with intent to steal from him; or

(d) steals from any person while armed with an offensive weapon or imitation thereof.

It is the appellant’s submission that to be considered as an included offence under s. 589(1) Cr.C., the offence must be a necessary ingredient in the description of the offence charged. It is not a necessary ingredient in subs, (d) of s. 302 Cr.C., nor is it in subs. (a) when the violence or threats of violence used are to property as opposed to a person. The appellant therefore concludes that common assault is not included when the charge is one of robbery without any specific reference to one or the other of the subsections of s. 302 Cr.C.

This was the view held by the dissenting members of the Court of Appeal, expressed as follows in the formal judgment:

That having regard for the form of the indictment it was not open to the trial judge to convict of common assault and in the circumstances if the Crown wishes the Court to be able to convict of an included offence, it must so frame its indictment as to show upon which of the subsections of s. 302 it intends to rely so as to give notice to the accused not only of the principal offence with which he is charged but as well of the possible included offences of which he may be convicted if proof of the principal offence fails.

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In support of his submission the appellant relied on R. v. Manuel[2]; R. v. Harmer and Miller[3]; R. v. Maika[4]; and Fergusson v. The Queen[5].

In R. v. Manuel the Court of Appeal for British Columbia held that a charge that the accused “did attempt to murder Joe Manuel” did not include the offences of assault causing bodily harm and common assault.

Delivering the judgment of the Court, Sheppard J.A. said at p. 407:

It follows that in order to be an included offence within sec. 569 the essential constituent of the included offence must necessarily be “included or involved” in the offence as described in the enactment creating it or as charged in the count.

And at p. 408 he added:

Further, to be an included offence the inclusion must form such an apparent and essential constituent of the offence charged that the accused in reading the offence charged will be fairly informed in every instance that he will have to meet not only the offence charged but also the specific offences to be included. Such apparent inclusion must appear from “the enactment creating” the offence or “from the offence as charged in the count;” either of those two may be considered under sec. 569 but not the opening by counsel or the evidence.

The crown contended that these assaults were included offences under sec. 210; “the enactment creating the offence.” The difficulty arises in the case at bar in that the offence charged, attempt to murder, may be carried out “by any means” (sec. 210) and therefore may be by assault or by other means. Hence, in a particular case the attempt to murder as opened by crown counsel or as sought to be proven may be an attempt not carried out by assault.

That is the difficulty in the crown’s contention here. Under sec. 569, to determine whether assault is an included offence, regard may be had to sec. 210, the enactment creating the offence charged. But sec. 210 does not necessarily include the offence of assault by

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reason that under that section the attempt assigned in a particular case may be “by any means,” and hence may be by means which do not come within “assault” as defined in sec. 230. It follows that sec. 210 does not make assault such apparent and essential constituent of the offence of attempt to murder that the accused in reading the section would be fairly informed in every instance that he would have to meet the offence of assault.

In R. v. Harmer and Miller, supra, the issue was whether assault causing bodily harm was included in robbery as charged in the count and it was found to be included in that particular indictment. It nevertheless appears from the judgment delivered by Evans J.A. that the Court was of the opinion that it is not an included offence in a charge of robbery. He wrote at p. 20: “If the trial Judge was of the view that assault causing bodily harm was an included offence in a charge of robbery then on the authorities he was in error”. From a previous statement on p. 19 it follows that would be included in an indictment charging an offence:

…all offences which as a matter of law are necessarily committed in the commission of the principal offence as described in the enactment creating it, as well as those offences of which the accused may be convicted by virtue of express statutory provisions.

In R. v. Maika, supra, the Court of Appeal for Ontario held that common assault was not an included offence within the description of robbery in s. 302 Cr.C. This decision was based on the English case of R. v. Springfield[6] in which the Court of Appeal interpreted s. 6(3) of the Criminal Law Act 1967:

Where, on a person’s trial, on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence

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or of an offence of which he could be found guilty on an indictment specifically charging that other offence.

This section is different from s. 589(1) Cr.C. and deals only with offences included in the offence “as charged in the count”. It does not deal with offences included in the offence “as described in the enactment creating it”, which is what we are concerned with here. For this reason, R. v. Springfield, supra, is, in my view, of no assistance in this case.

The appellant has quoted the following extract from the judgment of Taschereau J. (as he then was), speaking for the Court in Fergusson v. The Queen (supra), at p. 233:

In the present case, there was only one count in the indictment and the charge was for robbery in violation of s. 288(b) of the Criminal Code. A count in an indictment is divisible and where the commission of the offence charged includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved, or of an attempt to commit an offence so included (Criminal Code 569). Thus, a man charged with robbery may be found guilty of theft, but a person charged with robbery may not be found guilty of receiving stolen goods, as was held by the Court of Queen’s Bench in the present instance. Receiving stolen goods is a less serious offence, but is not included in a charge of robbery.

The count must therefore include but not necessarily mention the commission of another offence, but the latter must be a lesser offence than the offence charged. The expression “lesser offence” is a “part of an offence” which is charged, and it must necessarily include some elements of the “major offence”, but be lacking in some of the essentials, without which the major offence would be incomplete. Rex v. Louie Yee (1929), 1 W.W.R. 882, 24 Alta. L.R. 16, 51 C.C.C. 405, 2 D.L.R. 452.

Relying on the last sentence of the above extract, the appellant concludes that to be an included offence “an offence must necessarily be

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included in the description of the offence in the Code”. And he goes on to say that where no reference is made to one specific subsection, this means it must be included in all four subsections of s. 302.

With respect, I do not think that the latter proposition is supported by Fergusson v. The Queen, supra, which did not consider this question.

On the other hand, Fergusson v. The Queen, supra, does not support the opposite view either because in that case the accused was specifically charged under s. 288(b), now 302(b).

Nor is The Queen v. George[7], directly in point. There it was held that common assault was included in robbery but in that case the charge read that the accused did “unlawfully and by violence steal” which made it fall under s. 288(b).

To hold however that the lesser offence must be included in every subsection of the section referred to would seem to me to impose a requirement beyond those of s. 589.

Robbery is one offence which can be committed in different ways and a reference to the relevant section is a reference to it in its entirety.

Section 302 was s. 288 of the Criminal Code, 1953-54, 2-3 Elizabeth II, c. 51, which replaced ss. 445 to 448 of the Criminal Code, 1927.

As put in Crankshaw’s Criminal Code of Canada, 7th ed., A.E. Popple, 1959, at p. 431:

ROBBERY. The law of robbery was revised in the new Criminal Code by combining together ss. 445, 446 and 448 into one comprehensive section 288 (above). It will be noted that s. 288 (above) contains four clauses (a), (b), (c) and (d). The offence of robbery is punishable under s. 289 which provides that “every one who commits robbery is guilty of an indictable offence and is liable to imprisonment for life and to be whipped.” There is, therefore, one offence only “robbery” which

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may be committed in different ways. These ways of committing robbery are set out in s. 288 (above).

I would therefore conclude that the lesser offence must be included in the offence charged as described in the enactment, albeit not in all the subsections and that “it is sufficient if the other offence is included in the enactment creating it” as was held in this case by the Court of Appeal for British Columbia, following its own decision in R. v. Brown[8].

This is consistent, in my view, with the decision of this Court in The Queen v. McKenzie[9], where it was held that an accused charged with theft without reference to a specific section, in that case s. 276(1), now s. 290(1), could be found guilty of theft committed in the way described in that section.

The appellant further submitted:

…that the effect of the decision of the majority of the Court of Appeal in the present case will be to require an accused charged with robbery simpliciter to seek particulars from the Crown as to the particular method in which the offence is alleged to have been committed. It is submitted that the onus of describing the offence in particulars should rest with the Crown and not the accused.

This seems to me of little relevance if assault is included in a charge of robbery and as submitted by counsel for the respondent an accused charged with robbery will at the outset know that he is faced with a charge of robbery and a charge of assault as well as of theft.

To hold otherwise would in the respondent’s submission cause the inclusion in the indictment of multiple counts of robbery and of the specific actions under one or more of the subsections of s. 302 Cr.C. as the case may be.

Furthermore, it was the respondent’s submission that an accused acquitted of robbery would not be able to plead autrefois acquit within the meaning of s. 537 Cr.C. and would be subject to further prosecution on one or more other charges. In this

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respect however it can be queried whether in the case of an offence punishable on summary conviction all this could be done within the limitation period of six months.

For these reasons I am of the opinion that the appeal should be dismissed.

Appeal dismissed.

Solicitors for the appellant: Gove & Senior, Vancouver.

Solicitor for the respondent: Attorney General of British Columbia, Vancouver.