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

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.

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