CASE: R. v. Kirkness [1990]
3 S.C.R. 74
LOCATION:
CASE RELATES
TO:
Criminal Code s.21 –
aiding and abetting, party to common intention
FACTS OF THE
CASE:
The appellant and a
friend named Snowbird agreed to break and enter, but Snowbird committed murder
and sexual assault as well. The Appellant asked the accused to not strangle the
victim, but otherwise did not prevent or dissociate himself from the crime.
Snowbird sexually
assaulted and killed the eighty-three year old woman who lived there. Appellant
was told to leave the room when the assault began and remained across the hall
while the assault was occurring. He placed a chair against the outside door of
the house and occupied himself with stealing various things from the house.
Snowbird dragged his unconscious victim into the hallway and began to choke
her. Appellant asked him "not to do that because he (Snowbird) was going
to kill her." Snowbird then suffocated the victim.
Snowbird was convicted of first degree
murder. Appellant was acquitted, but the Court of Appeal set aside the verdict
and directed a new trial on the charge of manslaughter because of the judge’s
charge to the jury.
HELD:
The Supreme Court allowed
the acquittal of murder. However, it ruled something that is significant to the
Karloff case study from class:
REASONING AND
LEGAL SIGNIFICANCE:
The court ruled that:
“The appellant, when
he formed an intent in common with Snowbird to carry out the break and enter,
did not know before entering that Snowbird would either commit a sexual assault
or kill the victim. Appellant was not a party to the suffocation and, indeed,
put Snowbird on "timely notice" that he was acting on his own. The
single transaction principle was not applicable [short of] evidence linking the
appellant to the suffocation.”
[NOTE: The Court has
been reluctant to uphold the principles of section 21 of the criminal code when
it comes to Homicide.]