R. v. Stewart, [1991] 3 SCR 324

R. v. Stewart, [1991] 3 S.C.R. 324

Albert Stewart              Appellant

v.

Her Majesty The Queen                                                                   Respondent

Indexed as:  R. v. Stewart

File No.:  22257.

1991:  November 6.

Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for alberta

                   Criminal law ‑‑ Sentencing ‑‑ Parole ineligibility ‑‑ Accused convicted of first degree murder following new trial ‑‑ Sentence of life imprisonment without parole eligibility for 25 years imposed under transitional provisions of criminal law amendment act ‑‑ Parole ineligibility at time of first trial was 10 to 20 years ‑‑ Accused not sentenced and convicted under wrong law ‑‑ Accused's detention lawful under transitional provision ‑‑ Appeal dismissed.

Cases Cited

                   Distinguished:  R. v. Gamble, [1988] 2 S.C.R. 595.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms .

                   APPEAL from a judgment of the Alberta Court of Appeal (1990), 109 A.R. 53, dismissing the accused's appeal from the dismissal of his application for habeas corpus with certiorari in aid.  Appeal dismissed.

                   Mona T. Duckett, for the appellant.

                   I. G. Whitehall, Q.C., and L. M. Huculak, for the respondent.

//Lamer C.J.//

                   The judgment of the Court was delivered orally by            

                   Lamer C.J. ‑‑ Mrs. Duckett, I will depart from our usual practice, to say how much we appreciated your advocacy.  Nevertheless, we are all of the view that this appeal fails, substantially for the reasons set forth by the Court of Appeal.

                   This case does not come within the principle in R. v. Gamble, [1988] 2 S.C.R. 595, where the accused was convicted and sentenced under the wrong law.  The detention of the appellant in this case is lawful as a result of a transitional provision, the validity and constitutionality of which were not attacked and could not be attacked because that would have resulted in a retrospective application of the Canadian Charter of Rights and Freedoms .

                   The appeal is accordingly dismissed.

                   Judgment accordingly.

                   Solicitors for the appellant:  Royal, McCrum, Duckett & Glancy, Edmonton.

                   Solicitor for the respondent:  The Deputy Attorney General of Canada, Ottawa.