R. v. Hick, [1991] 3 S.C.R. 383

Her Majesty The Queen Appellant

v.

Keith Gilbert Hick Respondent

Indexed as: R. v. Hick

File No.: 22033.

1991: October 4; 1991: November 7.

Present: Sopinka, Cory, McLachlin, Stevenson and Iacobucci JJ.

on appeal from the court of appeal for british columbia

Criminal law -- Unlawful confinement -- Guilty plea -- Co-accused acquitted at trial -- Whether or not accused should be allowed to withdraw plea.

Respondent was committed for trial together with Marshall, as co-accused, on charges of unlawful confinement and sexual assault. Shortly before the trial was to take place he entered a guilty plea on an indictment for unlawful confinement. A jury acquitted Marshall of both counts. At issue here was whether the respondent should be allowed to withdraw his plea in the light of that acquittal.

The Court of Appeal set aside the respondent's plea of guilty and substituted an acquittal. The majority agreed that there were no other grounds upon which to permit the change of plea. They concluded, however, that the basis of the charge was that the appellant (in the Court of Appeal) aided and abetted the co-accused in confining the complainant and decided that the conviction could not stand as it would be a mistake to say that the respondent aided and abetted Marshall in the commission of a criminal offence when Marshall had not committed the offence. The Crown appealed as of right.

Held: The appeal should be allowed.

The facts supported the conviction of respondent as a principal to the offence of unlawful confinement. This characterization was a question of law because it involved the legal effect of undisputed or found facts. The acquittal of the co-accused determined nothing in respect of the conviction of the accused. The jury verdict is only conclusive as between the Crown and the accused at that trial. It followed, then, that the majority's conclusion that the conviction could not stand was erroneous.

Cases Cited

Distinguished: R. v. Rowley, [1948] 1 All E.R. 570; referred to: Adgey v. The Queen, 1973 37 (SCC), [1975] 2 S.C.R. 426; R. v. B. (G.), 1990 115 (SCC), [1990] 2 S.C.R. 57; Rémillard v. The King (1921), 1921 584 (SCC), 62 S.C.R. 21.

APPEAL from a judgment of the British Columbia Court of Appeal setting aside a plea of guilty and substituting an acquittal. Appeal allowed.

Elizabeth Bennett, for the appellant.

Peter Leask, Q.C., for the respondent.

//Stevenson J.//

The judgment of the Court was delivered by

Stevenson J. -- Crown appeals, as of right, a decision of the Court of Appeal of British Columbia setting aside the accused's plea of guilty to a charge of unlawful confinement and substituting an acquittal. The appeal is based on the dissent of Gibbs J.A. who would have dismissed the accused's appeal.

The accused had been committed for trial together with one, Marshall, on charges of unlawful confinement and sexual assault but shortly before the trial was to take place he entered a guilty plea on an indictment alleging that he had committed the offence of unlawful confinement. At trial a jury acquitted Marshall of both counts. The appeal involved a consideration of whether the accused should be allowed to withdraw his plea in the light of that acquittal.

The majority agreed that there were no other grounds upon which to permit the change of plea. The accused should not be allowed to withdraw his plea on the basis of an alleged factual dispute between the Crown and the defence or on the ground that the trial judge wrongly relied on evidence taken at the preliminary inquiry. The majority concluded that the basis of the charge was that the appellant aided and abetted Marshall in confining the complainant so that Marshall could have sexual intercourse with her against her will. The majority decided on the basis of R. v. Rowley, [1948] 1 All E.R. 570, that the conviction "cannot stand" as "it would be a mistake to say that the [accused] aided and abetted Marshall in the commission of a criminal offence when Marshall had not committed the offence."

Gibbs J.A. disagreed. After finding no other valid ground to justify a change of plea (Adgey v. The Queen, 1973 37 (SCC), [1975] 2 S.C.R. 426), he turned to consider Rowley which involved an accused charged as an accessory after the fact. He distinguished Rowley, which apparently had not been discussed in argument before the court, on the basis that it was irrelevant in a case in which the accused was not charged with aiding and abetting. Gibbs J.A. had set out the agreed statement of facts and noted no factual dispute, a proposition with which the majority agreed. The agreed statement of facts read:

Keith Hick and Allen Marshall picked up the victim and a male friend and drove out to Otway Road after having drinks together. Upon arriving at an isolated area Marshall instructs Hick to get rid of the boyfriend and Hick runs towards the friend and throws things and the male friend runs away. Marshall then rapes the victim while Hick drives the car. After Marshall is finished, Hick makes a movement towards the girl, she says "You'll have to kill me first", Hick then withdraws. Marshall takes over driving and puts the car in the ditch.

In the meantime the male friend is able to contact the police and they come to across [sic] the car in the ditch and Hick and Marshall are arrested. Hick has blood alcohol reading of .140 milligrams of alcohol in 100 millilitres of blood.

In my view the difference between the majority and Gibbs J.A. depends upon characterizing the facts. The facts support the conviction of the accused as a principal to the offence of unlawful confinement. That characterization is a question of law because it involves the legal effect of undisputed or found facts: R. v. B. (G.), 1990 115 (SCC), [1990] 2 S.C.R. 57, at p. 71. In my view Gibbs J.A. was correct.

Without expressing any opinion on its correctness Rowley does not purport to apply to principals and in my view cannot be applied to them. The acquittal of Marshall determines nothing in respect of the conviction of the accused. Rémillard v. The King (1921), 1921 584 (SCC), 62 S.C.R. 21, makes it perfectly clear that the jury verdict is only conclusive as between the Crown and the accused at that trial. It follows, then, that the majority's conclusion that the conviction cannot stand is erroneous.

I would allow the appeal, reinstate the conviction and return the matter to the Court of Appeal to determine the sentence appeal which is still outstanding.

Appeal allowed.

Solicitor for the appellant: The Attorney General of British Columbia, ancouver.

Solicitors for the respondent: Leask, Daniells, Bahen, Vancouver.