R. v. Sarson, [1996] 2 S.C.R. 223

John Alexander Sarson Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Sarson

File No.: 24233.

1996: February 22; 1996: May 30.

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

on appeal from the court of appeal for ontario

Criminal law ‑‑ Prerogative writs ‑‑ Habeas corpus ‑‑ Accused convicted of murder and sentenced to life imprisonment without eligibility for parole for 15 years ‑‑ Accused convicted under provision subsequently struck down as unconstitutional ‑‑ Whether accused`s continued detention gives rise to right to habeas corpus.

While driving home from work in the early morning hours, the victim stopped on the side of a downtown street to offer assistance to a fellow motorist in a disabled motor vehicle. When he emerged from his car to help the motorist, the accused and two accomplices waylaid him and forced him back into his vehicle. As the accused and his accomplices drove the victim away in his car, witnesses could hear the sound of a gunshot fired within the car. The victim's body was eventually discovered in an isolated area. The accused's coat was subjected to forensic examination, which revealed five specks of tissue which were consistent with the victim's body. In addition, the legs of the accused's pants were found to be wet, as if he had been walking in an area covered with snow such as the one in which the victim's body was found. One of the accused's accomplices eventually confessed to having fired the fatal shot into the victim's head. Because the accused was a party to the offences of unlawful confinement and robbery which led to the victim's death, he was clearly guilty of constructive murder under s. 213(d) of the Criminal Code. The accused pleaded guilty to the lesser included offence of second degree murder, and was sentenced to life imprisonment without the potential for parole for 15 years. Eleven months later this Court rendered its judgment in Vaillancourt, striking down s. 213(d) as unconstitutional. The accused's application to the Court of Appeal to extend the time in which he could appeal his conviction and sentence, on the basis that the provision under which he had been convicted was struck down, was refused. The accused then brought an application for habeas corpus with certiorari in aid, seeking various orders quashing his warrant of committal and declaring him immediately eligible for parole. This application was refused by the Ontario Court (General Division), and that decision was upheld by the Court of Appeal.

Held: The appeal should be dismissed.

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: Where a court has exceeded its jurisdiction in ordering the imprisonment of the accused, resort may be had to a writ of habeas corpus to secure the release of the wrongly imprisoned person. Since a challenge to the jurisdiction of a convicting court is a very serious matter, the common law permitted the issuance of the writ of habeas corpus only in certain limited cases. The jurisdiction of a superior court was insulated from collateral attacks and could only be questioned on appeal. In the instant appeal, the accused properly admitted that habeas corpus would not be available under the rules of the common law. In addition to these bars to habeas corpus, the common law has imposed strict limitations on the ability of an accused to attack his conviction on the basis of subsequently decided judicial authorities. Unless the accused is still "in the judicial system", an accused is unable to reopen his or her case and rely on subsequently decided judicial authorities, even where the provision under which the accused was convicted is subsequently declared unconstitutional. Finality in criminal proceedings is of the utmost importance but the need for finality is adequately served by the normal operation of res judicata. Since the accused in this case is no longer able to appeal his conviction, he is not "in the judicial system" and is therefore not entitled to apply for habeas corpus. The doctrine of res judicata is a conclusive answer to an accused's collateral attack on his or her conviction, such as an application for habeas corpus. All such collateral attacks will fail on the ground that the accused is in custody pursuant to the judgment of a court of competent jurisdiction.

In the alternative, on the assumption that the appropriate characterization of the accused's application is an attack on his alleged unlawful detention, his continued detention pursuant to a conviction for second degree murder does not amount to a breach of the tenets of fundamental justice within the meaning of s. 7 of the Canadian Charter of Rights and Freedoms. Although the accused's conviction was entered under a constitutionally infirm provision of the Code, it is clear that his involvement in the victim's death could easily have supported a conviction under several Criminal Code provisions aside from s. 213(d). The combined effect of the evidence is to make it virtually certain that the accused was at the scene of the execution‑style killing, supporting his culpability for the murder of the victim. The force of the evidence was indeed so great that the accused pleaded guilty to the offence of second degree murder, and his counsel agreed to the sentence of life imprisonment without parole for 15 years, which is greater than the minimum sentence required. The evidence makes it clear that the guilty plea entered was the result of an agreement between counsel. Had the accused been convicted under another Code provision, his sentence might well have been greater than the one he in fact received. The appropriate remedy for persons who are imprisoned pursuant to a law subsequently declared unconstitutional, who have exhausted their appeals and are unable to show that their sentence fails to accord with the Charter, is an appeal to the royal prerogative of mercy.

Per L'Heureux‑Dubé, Gonthier and McLachlin JJ.: Sopinka J.'s result and analysis of the doctrine of res judicata were agreed with. Even though the accused’s application for habeas corpus is formulated as a challenge to the legality of his incarceration, it is predicated on the unconstitutionality of the crime of which he was convicted, and therefore amounts to an impermissible collateral attack against his conviction. The statements made by Sopinka J. in obiter concerning habeas corpus under the Charter should not be taken to mean that when an offence is declared unconstitutional, persons who were previously convicted of the offence have a potential s. 7 remedy against their continued incarceration depending on the strength of the evidence against them. Any application for habeas corpus in such circumstances would be precluded by res judicata. The practical problems associated with reopening convictions make it essential to have a rule which permits an accused to contest his conviction throughout the appeals process, but which considers the matter res judicata once all appeals have been exhausted.

Cases Cited

By Sopinka J.

Applied: R. v. Wigman, [1987] 1 S.C.R. 246; R. v. Thomas, [1990] 1 S.C.R. 713; distinguished: R. v. Gamble, [1988] 2 S.C.R. 595; referred to: R. v. Vaillancourt, [1987] 2 S.C.R. 636; In re Sproule (1886), 12 S.C.R. 140; R. v. Gamble (1978), 1978 ALTASCAD 125, 40 C.C.C. (2d) 415, leave to appeal refused, [1978] 2 S.C.R. vii.

By L'Heureux‑Dubé J.

Referred to: R. v. Wigman, [1987] 1 S.C.R. 246; R. v. Thomas, [1990] 1 S.C.R. 713; R. v. O’Connor, [1995] 4 S.C.R. 411.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 11(d).

Constitution Act, 1982, s. 52(1).

Criminal Code, R.S.C. 1970, c. C-34, s. 213(d) [rep. & sub. 1974-75-76, c. 93, s. 13].

Authors Cited

Hogg, Peter W. Constitutional Law of Canada, 3rd ed. Scarborough, Ont.: Carswell, 1992.

Manson, Allan. "Vaillancourt: A Criminal Reports Forum -- Implications for Persons Convicted of Murder" (1987), 60 C.R. (3d) 339.

APPEAL from a judgment of the Ontario Court of Appeal (1994), 88 C.C.C. (3d) 95, affirming a decision of the Ontario Court (General Division) (1992), 73 C.C.C. (3d) 1, refusing the appellant's application for habeas corpus with certiorari in aid. Appeal dismissed.

Timothy E. Breen and James Stribopoulos, for the appellant.

Robert W. Hubbard and Marlene Thomas, for the respondent the Attorney General of Canada.

Kenneth L. Campbell and Gary T. Trotter, for the respondent the Attorney General for Ontario.

The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by

1 Sopinka J. -- The appellant John Alexander Sarson is a convicted murderer who has been sentenced to serve the rest of his life in prison without the chance of parole for 15 years. The appellant's conviction was entered under s. 213(d) of the Criminal Code, R.S.C. 1970, c. C-34, as a result of the appellant's involvement in the death of Michael Crispin. The provision under which the appellant was convicted was struck down by this Court in R. v. Vaillancourt, [1987] 2 S.C.R. 636, owing to a conflict with ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

2 In light of this Court's decision in Vaillancourt, the appellant now applies for a writ of habeas corpus on the grounds that the crime of which he was convicted was constitutionally invalid. In the appellant's submission, his continued detention pursuant to a conviction under an unconstitutional law amounts to a legal error resulting in a loss of jurisdiction by the convicting court, and a breach of Charter rights giving rise to the appellant's right to habeas corpus. In the reasons that follow, I conclude that the appellant has not made out a case for habeas corpus.

I. Facts

3 While driving home from work in the early morning hours of March 5, 1985, Michael Crispin stopped on the side of Queen Street West to offer assistance to a fellow motorist in a disabled motor vehicle. When Mr. Crispin emerged from his car to help the motorist, the appellant and two accomplices waylaid the good Samaritan and forced him back into his Lincoln Continental. The appellant and his accomplices (Vince and Racky) were in possession of a shotgun, which they used to force Mr. Crispin to comply with their demands. Witnesses in the area heard Mr. Crispin cry "No gun, I want to live". As the appellant and his accomplices drove Mr. Crispin away in the Continental, witnesses could hear the sound of a gunshot fired within the car.

4 Approximately one hour after accosting Mr. Crispin, the appellant and his cohorts attempted several bank transactions at an automated teller using Mr. Crispin's card. The appellant and his friends withdrew $200 from Crispin's account, indicating that they had somehow obtained Crispin's personal banking number.

5 At approximately 5:00 a.m., Constable Vandenburg of the Durham Regional Police observed the appellant and his accomplices at a convenience store in Whitby. Crispin's Lincoln Continental was idling in the parking lot of the store. Constable Vandenburg observed the appellant and his friends for several minutes, watching them eventually drive away.

6 After following the Continental for a brief period, Constable Vandenburg finally stopped the appellant and his companions. The appellant was driving the vehicle, and produced identification at the request of Constable Vandenburg. The identification in question was that of Michael Crispin, the man who had just been killed by the appellant and his cohorts. Constable Vandenburg examined the identification produced by the appellant, and asked the appellant to state his name. The appellant replied that his name was "Christopher". The name on the identification given to Constable Vandenburg was "Michael". Constable Vandenburg, suspecting that something was afoot, escorted the appellant to the police cruiser and asked him several questions.

7 Based on the appellant's answers to his inquiries, Constable Vandenburg arrested the appellant for possession of stolen property. The constable searched the appellant and discovered live shotgun ammunition on his person.

8 With the assistance of a back-up unit, Constable Vandenburg returned to the Lincoln Continental and arrested the appellant's cohorts, Vince and Racky. When the Continental was searched, the police discovered a loaded sawed-off shotgun beneath the passenger seat in the front of the car.

9 At approximately 6:55 a.m., the appellant and his accomplices were escorted to a police station where the appellant was charged with possession of a prohibited weapon and obstructing the police. The appellant denied any knowledge of Michael Crispin, and claimed that he had obtained Crispin's vehicle from "[t]he guy at the Parkdale Hotel". When questioned about the live shotgun shells in his possession, the appellant offered no explanation aside from the fact that the shells "weren't in the gun".

10 Michael Crispin's body was eventually discovered on March 11, 1985. His corpse was found in an isolated area in Durham. A scarf had been used to "gag" Mr. Crispin, who had a gaping head wound consistent with a point-blank shotgun blast.

11 The appellant's coat was subjected to forensic examination, which revealed five specks of tissue which were consistent with the body of the deceased. In addition, the legs of the appellant's pants were found to be wet, as if the appellant had been walking in an area covered with snow such as the one in which Mr. Crispin's body was found. One of the appellant's cohorts (Mr. Vince) eventually confessed to having fired the fatal shot into Crispin's head.

12 Because the appellant was a party to the offences of unlawful confinement and robbery which led to the death of Mr. Crispin, the appellant was clearly guilty of "constructive murder" or "felony murder" under s. 213(d) of the Criminal Code. The appellant pleaded guilty to the lesser included offence of second degree murder, and was sentenced to life imprisonment without the potential for parole for 15 years. Mr. Vince was convicted of first degree murder, and sentenced to life in prison without parole for 25 years. Miss Racky, who could not be placed at the scene of the crime at the time that Crispin was killed, was convicted of manslaughter and sentenced to four years in prison.

13 Eleven months after the appellant entered his plea of guilty to the offence of second degree murder, this Court rendered its judgment in Vaillancourt, supra. In that case, the Court concluded that s. 213(d) of the Criminal Code (the provision under which the appellant was convicted) was inconsistent with s. 7 of the Charter. As a result of that conclusion, s. 213(d) of the Criminal Code was struck down pursuant to s. 52 of the Constitution Act, 1982.

14 Two and one-half years after the Vaillancourt decision, the appellant sought leave before the Ontario Court of Appeal to extend the time in which he could appeal his conviction and sentence, on the basis that the provision under which he had been convicted was struck down. This application for an extension of time was refused. The appellant also brought an application for habeas corpus with certiorari in aid, seeking various orders quashing his warrant of committal and declaring him immediately eligible for parole. This application was refused by Watt J. of the Ontario Court (General Division): (1992), 73 C.C.C. (3d) 1. Watt J.'s decision was upheld by the unanimous Court of Appeal: (1994), 88 C.C.C. (3d) 95. The appellant now appeals his habeas corpus application to this Court.

II. Statutory Provisions

15 Before it was struck down by this Court in Vaillancourt, s. 213(d) of the Criminal Code provided as follows:

213. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit...kidnapping [or] forcible confinement...[or] robbery ...whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if

(d)he uses a weapon or has it upon his person

(i) during or at the time he commits or attempts to commit the offence, or

(ii) during or at the time of his flight after committing or attempting to commit the offence,

and the death ensues as a consequence.

As noted above, this provision was struck down by the operation of s. 52 of the Constitution Act, 1982 in Vaillancourt on the grounds that the provision was in conflict with the rights entrenched in ss. 7 and 11(d) of the Charter. Sections 7 and 52 of the Constitution Act, 1982 provide as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

III. Judgments Below

(a) Ontario Court (General Division)

16 The appellant initially brought his application for habeas corpus before Watt J. of the Ontario Court (General Division). In assessing this application, Watt J. noted that the appellant was aware that the traditional grounds for the writ of habeas corpus were not present in this case. In Watt J.'s opinion (at p. 14):

In the first place, the warrant of committal under which the applicant is presently confined is regular upon its face.... The offence is one within the jurisdiction of the trial court and the sentence within that which is prescribed by law for the offence of which the applicant stands convicted. In such circumstances, habeas corpus does not lie.... [Emphasis in original.]

Watt J. further pointed out that the writ of habeas corpus is a remedy which is jurisdictional in nature. In other words, a habeas corpus application challenges the jurisdiction of the court whose order is under review. According to Watt J. (at p. 15):

It is not merely a question whether the court whose order is under review erred in law. Mere error of law will not suffice. Jurisdictional error must be made to appear before the jurisdiction of the superior court to grant the relief sought will become engaged. [Emphasis in original.]

Watt J. further noted that an application for habeas corpus is a collateral attack on the convicting court's jurisdiction to order the applicant's detention. Watt J. pointed out that the court that convicted the appellant was the superior court of a province, and that superior courts of criminal jurisdiction are immune to collateral attacks on their jurisdiction. In Watt J.'s opinion (at p. 15):

The applicant's conviction was recorded after entry of a plea of guilty in the superior court of criminal jurisdiction of this province. The offence of which the applicant stands convicted is within the (exclusive) jurisdiction of the convicting court. The sentence imposed upon conviction was within legal limits. By this application, it is sought to set aside the conviction which underlies the warrant of committal pursuant to which the applicant is confined. It is equally sought to set aside the applicant's plea of guilty. Upon “traditional grounds”, the applicant's claim for habeas corpus must fail.

17 After assessing the "traditional grounds" for habeas corpus review, Watt J. referred to this Court's decision in R. v. Gamble, [1988] 2 S.C.R. 595, in which the availability of habeas corpus as a remedy under the Charter was considered. In Watt J.'s opinion, the judgment in Gamble made it clear that the traditional rules related to habeas corpus were not an absolute bar to Charter-related habeas claims. In particular, Watt J. stated that Charter-related habeas claims could succeed even in cases where the order under review had been made by a superior court of criminal jurisdiction. As a result, the nature of the court that convicted the appellant was not a bar to habeas corpus where the writ was sought as a remedy under the Charter.

18 Although Watt J. recognized that the rules surrounding the writ of habeas corpus are applied more flexibly where the writ is sought as a remedy under the Charter, Watt J. nonetheless rejected the appellant's claim. In his view, the appellant's claim for habeas corpus was nothing more than a surreptitious attempt to appeal the merits of his conviction for second degree murder. According to Watt J. (at p. 18), although Charter-related habeas claims are clearly permitted:

It none the less remains necessary for the habeas applicant to demonstrate jurisdictional error. Put otherwise, the inquiry on habeas corpus remains jurisdictional in nature: it endeavours to ascertain (and is limited to decide) whether the conviction at first instance was made with or without jurisdiction. The habeas inquiry will not be suffered to become or to serve as a substitute for an appeal on the merits. Errors of law, fact or mixed law and fact are nihil ad rem. [Emphasis added.]

In the instant case, the application launched by the appellant appeared to amount to an appeal of his conviction, rather than merely an attack on the jurisdiction of the court imposing the sentence. As a result, Watt J. held that habeas corpus was not available in this case.

19 Having determined that the writ of habeas corpus could not issue in this case, Watt J. went on to hold that even if the appellant had established a right to habeas corpus, the writ was unavailable owing to concerns with the need for "finality" in the criminal justice process. In Watt J.'s opinion, "[i]t would be quite intolerable were trial findings forever to remain impeachable upon the basis of any or all authorities decided thereafter" (p. 18). Watt J. further stated that "[t]he need for finality is generally served adequately by the application of the res judicata principle: a matter once finally determined cannot be relitigated" (pp. 18-19). Based on this Court's decisions in R. v. Wigman, [1987] 1 S.C.R. 246, and R. v. Thomas, [1990] 1 S.C.R. 713, Watt J. concluded that the conviction of the appellant was res judicata, and unimpeachable by collateral attack. As a result, Watt J. held that the remedy sought by the appellant was unavailable.

(b) Ontario Court of Appeal (Brooke, Labrosse and Laskin JJ.A.)

20 The appellant appealed the court's decision to the Ontario Court of Appeal, where the reasons of Watt J. were unanimously affirmed. The endorsement of the Ontario Court of Appeal provides as follows (at p. 96):

We think this appeal fails. We agree with the reasons delivered by Watt J. There has been no submission made by the appellant that causes us to doubt that [the] analysis by Watt J. of the authorities is correct. The appeal is dismissed.

IV. Analysis

(a) Habeas Corpus at Common Law

21 As noted above, the appellant challenges his conviction under s. 213(d) of the Criminal Code by applying for a writ of habeas corpus. Generally speaking, the writ of habeas corpus can be seen as a check on the jurisdiction of the convicting court or tribunal to order the detention of the applicant. Where the court or tribunal in question has exceeded its jurisdiction in ordering the imprisonment of the accused, resort may be had to a writ of habeas corpus to secure the release of the wrongly imprisoned person.

22 Clearly, a challenge to the jurisdiction of a convicting court or tribunal is a very serious matter. For this reason, the common law permitted the issuance of the writ of habeas corpus only in certain limited cases. For example, at common law the writ merely allowed the reviewing court to examine the warrant of committal pursuant to which the applicant had been imprisoned. Where some irregularity or loss of jurisdiction was apparent on the face of the warrant of committal, habeas corpus would issue ordering the release of the person detained. Where no apparent fault could be revealed on the face of the warrant of committal, the writ of habeas corpus was not available. As a result, where the alleged error of jurisdiction could only be found by reviewing the record of the convicting court or tribunal (as opposed to the warrant of committal), the writ of habeas corpus could not issue.

23 A second, more substantive limitation on the writ of habeas corpus at common law concerned the nature of the court which entered the applicant's conviction. As noted above, an application for habeas corpus attacks the convicting court's jurisdiction to imprison the accused. However, the common law makes it clear that a superior court's jurisdiction can be challenged only directly, on appeal. As Strong J. explained in In re Sproule (1886), 12 S.C.R. 140, at pp. 204-5:

When there has been a conviction for a criminal offence by a superior court of record having general jurisdiction over that offence the objection that the court ought not in that particular case to have exercised its jurisdiction or that there was some fatal defect in its proceedings is one conclusively for a court of error, in other words the judgment of the court is res judicata as to questions of jurisdiction as well as to all other objections. [Emphasis added.]

Accordingly, at common law, the jurisdiction of a superior court was insulated from collateral attacks, which included applications for habeas corpus. Only the jurisdiction of an inferior court or tribunal could be subject to a habeas corpus challenge. It follows that where the imprisonment of the accused was ordered by a superior court of criminal jurisdiction having general jurisdiction over the offence, the prisoner's only hope of release was in a direct appeal of the convicting court's decision: a habeas corpus attack could never succeed.

24 In the instant appeal, the appellant has properly admitted that habeas corpus would not be available under the rules of the common law. First, the warrant of committal is clearly regular on its face: it makes no reference to s. 213(d) of the Code, but merely states that the appellant is guilty of second degree murder and sentenced to life imprisonment without parole for 15 years. More importantly, the court that convicted the appellant was a superior court of criminal jurisdiction having general jurisdiction over the offence. As a result, the jurisdiction of the convicting court is immune to all collateral attacks, and can be challenged only directly on appeal. In light of this well-established rule of the common law, the appellant made the following concession in his factum:

It is conceded that, if assessed on the basis of the principles of common law ... the appellant's claim for habeas corpus must fail. The conviction, having been imposed by a superior court, would not be subject to collateral review by habeas corpus.

I agree that on the basis of the principles of the common law, habeas corpus does not apply in this case.

25 The bars to habeas corpus noted above are not the only reasons that the appellant's appeal would fail at common law. As noted above, the basis of the appellant's claim for habeas corpus is that the decision of this Court in Vaillancourt declared the provision under which the appellant was convicted unconstitutional. It should be observed that the decision in Vaillancourt was rendered in December of 1987, 11 months after the appellant's conviction. The common law has imposed strict limitations on the ability of an accused to attack his conviction on the basis of subsequently decided judicial authorities. These limitations were considered by this Court in Wigman, supra, and Thomas, supra. In my opinion, the combined effect of these decisions is a further bar to the appellant's application for habeas corpus at common law.

26 In Wigman, this Court decided that an accused may rely on subsequently decided judicial authorities only if the accused is still "in the judicial system". The Court stated, at pp. 257-58:

The appropriate test is whether or not the accused is still in the judicial system.... Finality in criminal proceedings is of the utmost importance but the need for finality is adequately served by the normal operation of res judicata: a matter once finally judicially decided cannot be relitigated. Thus a person convicted under Lajoie will not be able to reopen his or her case, unless, of course, the conviction is not final. In the Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 757, the Court observed that res judicata would even preclude the reopening of cases decided by the courts on the basis of constitutionally invalid laws. The res judicata principle would apply with at least as much force to cases decided on the basis of subsequently overruled case law.

As a result, unless the accused is still "in the judicial system", an accused is unable to reopen his or her case and rely on subsequently decided judicial authorities, even where the provision under which the accused was convicted is subsequently declared constitutionally invalid.

27 What is the meaning of "in the judicial system" for present purposes? In Thomas, at p. 716, this Court determined that a person convicted of an offence would still be "in the judicial system" only where one of the following criteria could be met:

1.an appeal has been launched to this Court;

2.an application for leave has been made within the time; or

3.an application for an extension of time is granted based on the criteria that normally apply in such cases.

The Court in Thomas added (at p. 716) that:

In a case in which the applicant alleges that he or she was convicted under a provision which has since been declared invalid, he or she should not be placed in a worse position than any other applicant. On the other hand, since we cannot do perfect justice, the applicant should not artificially be brought into the system.

As the accused in Thomas could not be considered "in the judicial system" based on the criteria developed in that case, he was unable to reopen his conviction or rely on the subsequent declaration that the provision under which he had been convicted was invalid.

28 The facts of Thomas are strikingly similar to the facts of the case at bar. In both cases, the accused was convicted of "constructive murder" after 1982, but before the "constructive murder" provisions were struck down by this Court in Vaillancourt. In both the present case and Thomas, the accused attempted to rely on this Court's decision in Vaillancourt to challenge his conviction. Much like the accused in Thomas, the appellant cannot be said to be "in the judicial system". The appellant's plea of guilty and recommendation as to sentence were entered in January of 1987. Three and a half years later, the appellant applied for leave to appeal to the provincial appellate court on the basis of the decision in Vaillancourt. This application for leave to appeal was refused on June 11, 1990. The appellant is no longer able to appeal his conviction for second degree murder. As a result, the appellant is not "in the judicial system" within the meaning of the factors developed in Thomas. It follows that provided the holding in Thomas applies on the facts of the case at bar, the appellant is not entitled to apply for habeas corpus.

29 The appellant alleges that this case can be distinguished from Thomas and Wigman. The most obvious difference between the instant case and Thomas or Wigman is the nature of the relief sought by the appellant. In both Wigman and Thomas, the appellant sought to directly challenge his conviction, which was of course a settled matter of law and therefore subject to the doctrine of res judicata. In the instant case, by contrast, the appellant seeks a writ of habeas corpus.

30 The appellant contends that the present application is not an attack on his conviction, but merely an application for a remedy for continued incarceration based on an "illegal" or unauthorized conviction. In the appellant's opinion, because the present application is not an attack on his conviction, the decisions in Wigman and Thomas do not apply. In support of his position, the appellant invokes this Court's decision in Gamble, supra.

31 In Gamble, the Court allowed an application for habeas corpus despite the fact that the offender was no longer "in the judicial system" within the meaning of Wigman and Thomas. According to the appellant, the Court's decision in Gamble stands for the proposition that an application for habeas corpus may succeed despite the fact that the applicant is no longer "in the judicial system".

32 In my view, the appellant has failed to recognize the fundamental distinction between his application for habeas corpus and the application launched in Gamble. In Gamble, the majority of the Court made it clear that Ms. Gamble was not permitted to transform her application for habeas corpus into an appeal of the merits of her conviction. Indeed, Ms. Gamble did not attempt to question her conviction, but merely challenged her continued ineligibility for parole. According to Wilson J. for the majority (at p. 636), if an applicant were to challenge a conviction through a habeas corpus application:

...the appellant would most likely be denied relief by way of habeas corpus because of this Court's decisions not to allow habeas corpus to be used to circumvent the ordinary appeal procedures established in the Criminal Code....

The majority further held, at p. 642, that:

Under section 24(1) of the Charter courts should not allow habeas corpus applications to be used to circumvent the appropriate appeal process....

As a result, habeas corpus review, both at common law and under the Charter, will not be permitted to extend to an inquiry into the merits of the offender's conviction as on appeal.

33 In the instant case, the appellant has attempted to compare his appeal to the application considered in Gamble. In the appellant's opinion, the present application closely parallels the application in Gamble, in that both the appellant and Ms. Gamble sought to challenge the conditions of their detention, rather than the underlying conviction. With respect, the parallel drawn by the appellant between his case and Gamble is illusory. In Gamble, the applicant refused to challenge her conviction and openly admitted liability for the crime of which she was convicted. In the instant case, by contrast, the appellant contends that he is "innocent of second degree murder". Similarly, during the course of oral argument, the appellant's counsel admitted that the habeas corpus application in this case essentially amounts to an attack on the appellant's conviction for second degree murder, and seeks to replace that conviction with a conviction for the lesser offence of manslaughter. Clearly, the appellant's application for habeas corpus is vastly different from the application considered in Gamble. In my view, the nature of the appellant's application is such that it amounts to an indirect or collateral attack on his conviction.

34 As noted above, the Court in Thomas and Wigman made it clear that a direct attack on a criminal conviction could not succeed where the accused was no longer "in the judicial system". Having found that the appellant's request for habeas corpus is an indirect attack on his conviction, it becomes necessary to consider whether the holdings in Thomas and Wigman apply with equal force to indirect or collateral attacks.

35 In my view, there is no basis for suggesting that Wigman and Thomas do not apply to indirect attacks on criminal convictions. Indeed, I would suggest that the "in the system" requirement applies with even greater force in the context of an indirect attack. As Professor Hogg states in Constitutional Law of Canada (3rd ed. 1992), at p. 1248:

In R. v. Thomas, the accused, although unsuccessful, had chosen the most promising route to review his conviction, that is, a direct attack in the form of an appeal. An appeal is not precluded by the doctrine of res judicata. The doctrine of res judicata would be a conclusive answer to a collateral attack on the accused's conviction, for example, an application for habeas corpus, an action for a declaration that the accused was illegally in custody, an action for damages for false imprisonment or a defence to a charge of escaping from lawful custody. All such collateral attacks would fail on the ground that the accused was in custody pursuant to the judgment of a court of competent jurisdiction. The fact that the convicting court had made an error of law in applying an unconstitutional statute would not deprive the court of jurisdiction. Only an absence of jurisdiction, rendering a decision a nullity, would expose a judicial decision to collateral attack. [Emphasis in original.]

I respectfully agree with this statement of the law. I would accordingly hold that even if the appellant had otherwise succeeded in making out a prima facie case for habeas corpus, his application would fail at common law on the grounds of res judicata and finality, substantially for the reasons given in Wigman. As a result, the appellant is ineligible to apply for habeas corpus. His conviction is a matter of settled law, and is subject to the doctrine of res judicata. The appellant is unable to challenge the merits of his conviction, whether by direct or collateral means.

36 While I have concluded that the Court's judgment in Gamble is of no assistance to the appellant in that Gamble affirmed that habeas corpus cannot be used as a substitute for an appeal of conviction, it is arguable that the appellant's attack is also on his alleged unlawful detention. The appellant submits that his detention is unlawful because he was wrongfully convicted. I propose to deal with this submission on the assumption that this is an appropriate characterization of the appellant's application for habeas corpus.

(b) Habeas Corpus under the Charter

37 On the basis of this characterization, the appellant contends that, in the circumstances, his incarceration without eligibility for parole for 15 years constitutes a breach of s. 7 of the Charter and, pursuant to the principles enumerated in Gamble, he is entitled to relief by way of habeas corpus under s. 24(1) of the Charter.

38 In Gamble, the applicant had been convicted of first degree murder and sentenced to life in prison without parole for 25 years under provisions that were not applicable at the time of her conviction. Had Ms. Gamble been convicted under the appropriate Code provisions, she would have been eligible for parole in 10 years (rather than 25). The Alberta Court of Appeal dismissed Ms. Gamble's appeal on the grounds that no substantial miscarriage of justice had taken place: (1978), 1978 ALTASCAD 125, 40 C.C.C. (2d) 415. Leave to appeal Ms. Gamble's conviction to this Court was denied, [1978] 2 S.C.R. vii.

39 Ten years after her conviction, Ms. Gamble applied for a writ of habeas corpus on the grounds that her continued parole ineligibility offended s. 7 of the Charter. A majority of the Court allowed Ms. Gamble's application for habeas corpus, despite the fact that the writ could not have issued at common law. As a result, the Court in Gamble declared the applicant immediately eligible for parole, as she would have been had her conviction been entered under the proper Code provision.

40 The majority in Gamble held that, in cases where habeas corpus is being sought as a Charter remedy (rather than merely under the common law), the Court must adopt a purposive approach in choosing whether or not to issue the writ. As Wilson J. stated, at p. 641:

A purposive approach should, in my view, be applied to the administration of Charter remedies as well as to the interpretation of Charter rights and, in particular, should be adopted when habeas corpus is the requested remedy since that remedy has traditionally been used and is admirably suited to the protection of the citizen's fundamental right to liberty and the right not to be deprived of it except in accordance with the principles of fundamental justice.

The Court accordingly held that habeas corpus applications based on infringements of the Charter should not be denied through the application of overly rigid or technical rules. In particular, because Ms. Gamble's application for habeas corpus was grounded in an infringement of s. 7, the Court refused to apply the strictures of the common law which insulated a superior court's jurisdiction from collateral attacks. According to Wilson J. for the majority, at p. 643:

To deny the appellant Charter relief because she received her criminal trial and sentencing under the wrong Criminal Code provisions in a superior court of criminal jurisdiction and not in an inferior court seems to me completely unacceptable given the interests that are at stake.

As a result, the fact that Ms. Gamble's conviction had been entered by a superior court of criminal jurisdiction did not prevent the collateral attack on the court's jurisdiction.

41 In addition to holding that Charter-related applications for habeas corpus could succeed even where the conviction had been entered by a superior court of criminal jurisdiction, the Court in Gamble went on to expand the scope of "jurisdictional review" in Charter-related habeas corpus cases. In Wilson J.'s opinion, at p. 640:

... courts have, in general, not bound themselves to limited categories or definitions of jurisdictional review when the liberty of the subject was at stake. I think that this trend should be affirmed where habeas corpus is sought as a Charter remedy and that distinctions which have become uncertain, technical, artificial and, most importantly, non-purposive should be rejected.

As a result, the Court in Gamble soundly rejected the technical rules of "jurisdictional error", and took an expansive view of the availability of the writ of habeas corpus as a remedy under the Charter. Clearly, the established common law rules surrounding habeas corpus applications must be applied in a flexible manner where the applicant has established that his continued incarceration breaches the Charter.

42 In assessing the merits of Gamble's application for habeas corpus, the Court concluded that Gamble's continued parole ineligibility created a breach of s. 7 of the Charter. Ms. Gamble had been convicted under the wrong Code provision: a provision that did not apply at the time she committed the crime. Had Ms. Gamble been convicted under the proper Code provision, she would have been eligible for parole after 10 years of incarceration (rather than 25). According to the Court in Gamble, Ms. Gamble's continued ineligibility for parole was a result of an error in the criminal justice process, amounting to a breach of the tenets of fundamental justice enshrined in s. 7 of the Charter. For this reason, the Court adopted an expansive "purposive" view of the writ of habeas corpus, which was sought as a Charter remedy under s. 24(1).

43 The basis of the Court's decision in Gamble was that the technical rules surrounding the writ of habeas corpus do not accord with the purposive interpretation of Charter rights. As a result, old technical rules involving the nature of the convicting court or finality concerns may not apply where the writ is sought as a Charter remedy. However, the Court's decision in Gamble makes it clear that the expanded availability of the writ will only apply where the applicant is able to demonstrate that his or her detention fails to accord with the principles of fundamental justice, or otherwise offends the Charter. Where the detention of the accused does not give rise to a Charter violation, the expanded scope of habeas corpus review does not apply.

44 In my view, the appellant's continued detention pursuant to a conviction for second degree murder does not amount to a breach of the tenets of fundamental justice within the meaning of s. 7 of the Charter. Although the appellant's conviction was entered under a constitutionally infirm provision of the Code, the circumstances leading to his conviction under that section are important in assessing the propriety of the appellant's conviction and ultimate sentence.

45 The evidence of the appellant's involvement in Crispin's death is overwhelming. A brief review of the findings made at trial makes it clear that the appellant's involvement in Crispin's death could easily have supported a conviction under several Criminal Code provisions aside from s. 213(d). First, the trial judge found as a fact that Mr. Crispin had been shot in the back of the head by a firearm held in contact with his skin. Crispin's hands and feet had not been bound, suggesting that he may have been restrained by a second person while he was shot by Mr. Vince (the appellant's companion). When questioned by the police, the appellant produced the identification of the deceased, and was found to be in possession of five live shotgun shells consistent with the weapon used to kill Mr. Crispin.

46 According to Watt J. (at p. 6), the appellant's pant legs were wet in a manner that was "consistent with him having walked through a snowy area" much like the one in which Mr. Crispin had been killed. Most importantly, the appellant's clothing was "flecked with five specks of tissue consistent with having come from the deceased and not from the applicant or co-accused" (p. 6). As Crown counsel noted during the trial, the injuries suffered by Crispin led to tissues from his head "being strewn very close to the location where the body and the head were located". Clearly, the combined effect of this evidence is to make it virtually certain that the appellant was at the scene of the execution-style killing, supporting his culpability for the murder of the deceased. Indeed, the force of this evidence was so great that the appellant pleaded guilty to the offence of second degree murder, which was included in s. 213(d) of the Code. In addition, the appellant's counsel agreed to the sentence of life imprisonment without parole for 15 years, a sentence which is greater than the minimum sentence required for a conviction of second degree murder. The appellant, who was advised by experienced counsel, was obviously aware of the strength of the case against him, and accepted the legal and moral culpability arising from his involvement in the death of Michael Crispin.

47 Several important consequences flowed from the appellant's plea of guilty to the crime of second degree murder. First, the appellant avoided exposure to the fate suffered by his co-accused (Vince), who was convicted of first degree murder and sentenced to life in prison without parole for 25 years. Second, the appellant avoided the delays associated with trial, and was able to begin serving his prison sentence without delay. Finally (and most importantly for the purposes of this appeal), the Crown was not required to lead further evidence in support of a conviction under another Code provision. The evidence makes it clear that the guilty plea entered by the appellant was the result of an agreement between counsel. This agreement limited the penal consequences to which the appellant could be exposed, and obviated the prosecution's need to produce further evidence in support of a conviction under a Criminal Code provision other than s. 213(d).

48 In my view, the circumstances surrounding the appellant's conviction stand in sharp contrast to the situation at issue in Gamble. In Gamble, if the applicant had been convicted under the proper Code provision, her sentence would have been less than the one imposed. In this case, by contrast, had the appellant been convicted under the proper Code provision, his sentence may indeed have been greater than the one he in fact received.

49 In light of the circumstances surrounding the appellant's plea of guilty and the evidence of his involvement in Crispin's death, I am unable to conclude that the appellant has established a breach of the tenets of fundamental justice resulting from his conviction for second degree murder. While the appellant was in fact convicted under an unconstitutional section, this was in the circumstances a technical flaw in his conviction resulting from an agreement between the appellant and the Crown. It cannot be said to amount to a breach of the rules of fundamental justice. Indeed, I would suggest that it would do violence to the principles of justice to permit the appellant to benefit from this flaw in his conviction in order to secure his early release from incarceration.

50 For the reasons given above, the appellant has failed to establish a breach of the rules of fundamental justice or any of the provisions of the Charter. As a result, the "expanded" ambit of habeas corpus developed in Gamble is unavailable in this case. As the appellant has failed to establish his right to habeas corpus at common law or under the Charter, it necessarily follows that the writ of habeas corpus cannot be issued in this case.

(c) Remedy

51 For the reasons given above, I have concluded that the appellant has no legal redress for his conviction under an unconstitutional law. Well-settled rules of the common law clearly prevent the issuance of the remedy sought by the appellant. In disposing of this appeal, I have determined that the appellant is both legally and morally responsible for the murder of Michael Crispin. Clearly, in cases such as that of the appellant, no remedy is required. He has failed to demonstrate that his imprisonment is at odds with the tenets of fundamental justice, and he has failed to demonstrate any right to habeas corpus. As a result, the appellant is deserving of his fate. However, when s. 213(d) remained in force before Vaillancourt, it was sufficiently broad to permit the conviction of persons who played an extremely limited role in the commission of a homicide. The remedial possibilities for such persons were discussed by Professor Manson in his article entitled "Vaillancourt: A Criminal Reports Forum -- Implications for Persons Convicted of Murder" (1987), 60 C.R. (3d) 339. According to Professor Manson, at p. 345:

The implications of Vaillancourt for people currently serving terms of life imprisonment is not that hundreds will obtain relief or are entitled to it. There are some, however, who are deserving -- the "true" s. 213(d) cases, in which the offender's blameworthiness cannot in good conscience justify long term confinement.

In Professor Manson's opinion, the appropriate form of redress for such individuals "lies in the exercise of the Royal prerogative of mercy" (p. 345). I agree with Professor Manson that this is one possible avenue of redress for persons convicted under s. 213(d). Where the courts are unable to provide an appropriate remedy in cases that the executive sees as unjust imprisonment, the executive is permitted to dispense "mercy", and order the release of the offender. The royal prerogative of mercy is the only potential remedy for persons who have exhausted their rights of appeal and are unable to show that their sentence fails to accord with the Charter.

V. Conclusion

52 For the foregoing reasons, the appeal is dismissed.

The reasons of L'Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by

53 L'Heureux-Dubé J. -- I have had an opportunity to read the reasons of my colleague Justice Sopinka, and I agree both with the result he reaches and with his analysis of the doctrine of res judicata. I will add only a few comments of my own, primarily in relation to the statements which my colleague makes, in obiter, under the heading of “Habeas Corpus under the Charter”.

54 As Sopinka J. observes, “[t]he common law has imposed strict limitations on the ability of an accused to attack his conviction on the basis of subsequently decided judicial authorities” (para. 25). For example, in R. v. Wigman, [1987] 1 S.C.R. 246, the Court held (at p. 257):

Finality in criminal proceedings is of the utmost importance but the need for finality is adequately served by the normal operation of res judicata: a matter once finally judicially decided cannot be relitigated.... In the Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 757, the Court observed that res judicata would even preclude the reopening of cases decided by the courts on the basis of constitutionally invalid laws.

This principle precludes all forms of collateral attack on a conviction, including attacks on the detention which are predicated on the unconstitutionality of the statutory provision under which the accused was convicted. On this point, I am in agreement with the reasons of Sopinka J., who adopts the following passage from p. 1248 of Professor Hogg’s treatise, Constitutional Law of Canada (3rd ed. 1992):

The doctrine of res judicata would be a conclusive answer to a collateral attack on the accused’s conviction, for example, an application for habeas corpus, an action for a declaration that the accused was illegally in custody, an action for damages for false imprisonment or a defence to a charge of escaping from lawful custody. All such collateral attacks would fail on the ground that the accused was in custody pursuant to the judgment of a court of competent jurisdiction. [Underlining added; italics in original.]

It follows that the appellant’s application for habeas corpus must fail. Even though the application is formulated as a challenge to the legality of his incarceration, it is predicated on the unconstitutionality of the crime of which he was convicted. It therefore amounts to an impermissible collateral attack against his conviction.

55 Although my colleague rejects the appellant’s attempt to characterize the application as something other than a collateral attack against a conviction, he proceeds to discuss how the s. 7 challenge might theoretically have been analyzed if the appellant’s characterization had been accepted. Under the heading of “Habeas Corpus under the Charter”, Sopinka J. essentially argues that the continued incarceration of the appellant would not violate s. 7 because the evidence was sufficient to support a murder conviction even in the absence of the constructive murder provisions. I do not take Sopinka J.’s comments to mean that when an offence is declared unconstitutional, persons who were previously convicted of the offence potentially have a s. 7 remedy against their continued incarceration depending on the strength of the evidence against them. Although, like the present appellant, such applicants might attempt to frame their applications as an attack on their incarceration, they would nevertheless be challenging their convictions just as the present appellant is. As Professor Hogg observed, in the passage adopted by Sopinka J., supra, any application for habeas corpus in such circumstances would be precluded by res judicata.

56 Indeed, if it were not so, then the Court would be placed in the unsatisfactory position of having to sift through the trial record, the facts read in on a guilty plea, or affidavit evidence received many years after the trial, in an effort to determine whether a conviction could be supported under some other statutory provision. The practical problems associated with reopening convictions in this manner make it essential to have a rule which permits an accused to contest his conviction throughout the appeals process, but which considers the matter res judicata once all appeals have been exhausted. This rule “affords a means of striking a balance between the ‘wholly impractical dream of providing perfect justice to all those convicted under the overruled authority and the practical necessity of having some finality in the criminal process'” (emphasis in original): Wigman, supra, at p. 257, adopted by Sopinka J., for the Court, in R. v. Thomas, [1990] 1 S.C.R. 713, at p. 715. As my colleague McLachlin J. observed in R. v. O’Connor, [1995] 4 S.C.R. 411, at para.193, “[p]erfection in justice is as chimeric as perfection in any other social agency. What the law demands is not perfect justice, but fundamentally fair justice”.

57 I would dispose of the appeal in the manner proposed by Sopinka J.

Appeal dismissed.

Solicitors for the appellant: Rosen, Fleming, Toronto.

Solicitors for the respondent: The Deputy Attorney General of Canada, Ottawa; the Ministry of the Attorney General for Ontario, Toronto.