R. v. Doliente, [1997] 2 S.C.R. 11

Ian Bernard Gallimet Doliente Appellant

v.

Her Majesty The Queen Respondent

File No.: 25417.

1997: May 20.

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

Indexed as: R. v. Doliente

on appeal from the court of appeal for alberta

Criminal law -- Defences -- Res judicata -- Aggravated assault and robbery -- Conviction entered on robbery offence -- Whether conviction on included offence of aggravated assault can be entered.

Cases Cited

Referred to: Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

APPEAL from a judgment of Alberta Court of Appeal (1996), 1996 CanLII 17942 (AB CA), 184 A.R. 129, 122 W.A.C. 129, 40 Alta. L.R. (3d) 78, 108 C.C.C. (3d) 137, [1996] A.J. No. 554 (QL), dismissing the appellant’s appeal and allowing the respondent’s cross-appeal from conviction by Langston J. Appeal allowed.

Balfour Der, for the appellant.

Goran Tomljanovic, for the respondent.

The judgment of the Court was delivered orally by

[1] Sopinka J.-- We are substantially in agreement with the reasons of Harradence J.A. dissenting in the Court of Appeal (1996), 1996 ABCA 158, 184 A.R. 129. The charge of aggravated assault was an included offence in the robbery charge. The two charges arose out of the same delict as defined in Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. Accordingly, the appeal is allowed, the judgment of the Court of Appeal is set aside and the judgment at trial is restored.

Judgment accordingly.

Solicitors for the appellant: Batting, Der, Calgary.

Solicitor for the respondent: The Attorney General for Alberta, Calgary.