Stuart J. Whitley

The appellant and a companion broke into a house.

The companion sexually assaulted and suffocated the elderly occupant.

The appellant was present but did not participate in the assault or suffocation, and told his companion to stop choking the victim.

The companion was convicted of first degree murder, while the appellant was acquitted.

The Court of Appeal ordered a new trial for the appellant on manslaughter, applying the 'single transaction' principle.

The Supreme Court of Canada allowed the appeal and restored the acquittal, holding that the single transaction principle applies only to the classification of murder under s. 214(5) of the Criminal Code, not to manslaughter.

The Court also found that the trial judge had adequately instructed the jury on party liability and the possibility of a manslaughter verdict.

The appellant challenged a Court of Appeal order that, after allowing his appeal from an incest conviction, directed that a conviction be entered on a sexual assault count that had been disposed of at trial under the rule against multiple convictions.

The court held that, although s. 613(3) did not authorize substitution of the lesser conviction because the appeal on the incest count was allowed rather than dismissed, the appellate court retained broad supplementary authority under s. 613(8).

In the Kienapple context, the usual rule that an acquittal cannot be disturbed absent a Crown appeal yields to an exception because the counts are inextricably linked by the same delict.

The court further held that conditional stays, rather than acquittals, are the preferable mechanism for counts barred by the rule against multiple convictions.

The appeal was dismissed and the matter remitted to the trial judge for entry of conviction on the sexual assault charge and sentencing.