Harper, Re; R. v. McGann and Charters, (1986) 70 N.B.R.(2d) 361 (TD)

• Judge: Stevenson, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: May 05, 1986
• Jurisdiction: New Brunswick
• Citations: (1986), 70 N.B.R.(2d) 361 (TD)

Harper, Re (1986), 70 N.B.R.(2d) 361 (TD);

    70 R.N.-B.(2e) 361; 179 A.P.R. 361

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R. v. Charters; R. v. McGann

(F/M/122/86)

(F/M/19/86)

Indexed As: Harper, Re; R. v. McGann and Charters

Répertorié: Harper, Re; R. v. McGann and Charters

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Stevenson, J.

May 8, 1986.

Summary:

Résumé:

Charters was charged with trafficking in a narcotic and possession of a narcotic for the purpose of trafficking. Charters elected trial by judge and jury and was committed to stand trial following a preliminary inquiry. The preliminary inquiry on the possession charge was waived. Charters gave notice of his intention to re-elect to be tried by Provincial Court judge.

The New Brunswick Provincial Court, in a judgment reported 71 N.B.R.(2d) 31; 182 A.P.R. 31, held that it lacked jurisdiction to take the re-election, because the Criminal Code provisions "which purport to confer either concurrent or exclusive jurisdiction to hear and determine practically all serious indictable offences, excepting only murder, are ultra vires the Federal Government and thus inoperative under s. 52(1) of the Charter". Subsequently, McGann appeared before the Provincial Court judge for resumption of his trial on a charge of possession of a narcotic for the purpose of trafficking, which had been adjourned after the Crown closed its case. For the reasons set out in R. v. Charters, the Provincial Court judge held that he lacked jurisdiction to complete the trial of a "serious indictable offence". The Provincial Court judge invoked s. 485(1) of the Criminal Code and converted the trial to a preliminary inquiry. The Crown applied for judicial review of both decisions, seeking to quash the decisions and to obtain orders requiring the Provincial Court judge to complete McGann's trial and to take Charter's re-election. The applications were heard together.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the applications. The court held that the conferring of jurisdiction on the Provincial Court to try all indictable offences except those in ss. 427 and 483 of the Criminal Code, upon the consent or election of the accused, was not ultra vires the federal Parliament.

Civil Rights - Topic 3138

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to jury - The New Brunswick Court of Queen's Bench, Trial Division, held that an accused charged with an indictable offence, other than those found in ss. 427 and 483 of the Criminal Code, who elects trial by a Provincial Court judge rather than by a Court of Queen's Bench judge and a jury is not denied his right to a jury under s. 11(f) of the Charter of Rights and Freedoms - See paragraphs 31 to 32.

Civil Rights - Topic 5502

Equality and protection of the law - Whether right to equality denied - The New Brunswick Court of Queen's Bench, Trial Division, held that an accused charged with an indictable offence, other than those found in ss. 427 and 483 of the Criminal Code, who elects trial by Provincial Court judge rather than by a Court of Queen's Bench judge and jury is not denied his right to equality under s. 15(1) of the Charter of Rights and Freedoms - See paragraphs 31 to 32.

Civil Rights - Topic 5503

Equality and protection of the law - "Equality" defined - The New Brunswick Court of Queen's Bench, Trial Division, held that s. 15 of the Charter of Rights and Freedoms guarantees equality, not uniformity - See paragraph 32.

Constitutional Law - Topic 8601

Judicial power - Appointment of judges - S. 96 - General - The New Brunswick Court of Queen's Bench, Trial Division, held that ss. 96 - 100 of the Constitution Act guaranteed the independence and impartiality of the superior, district and county courts of the provinces - The sections also guaranteed a citizen's right of access to those courts and act as a barrier to legislative attempts to place matters that are properly within the jurisdiction of those courts in the hands of courts or tribunals that are or might be subject to the control of the executive branch of government - See paragraphs 56 to 57.

Constitutional Law - Topic 8605

Judicial power - Appointment of judges - S. 96 - Provincial criminal courts - The New Brunswick Court of Queen's Bench, Trial Division, stated that if inferior courts in 1867 were restricted to what are now summary conviction offences and the superior courts had exclusive jurisdiction over offences now classified as indictable offences, then it would be difficult to uphold the present jurisdiction of Provincial Courts over indictable offences - However, at the time of Confederation there was jurisdiction in some inferior courts to try serious criminal offences and in some instances that jurisdiction was dependent upon the consent of the accused - Therefore, the court held that legislation giving the Provincial Court its present increased jurisdiction over indictable offences was intra vires the federal parliament, because it "has not altered the character of the inferior courts nor has it conferred on them functions that were reserved exclusively to superior, district or county courts in 1867" - See paragraphs 66 to 82.

Courts - Topic 355

Judges - Exercise of authority - Exercise of discretionary power - The New Brunswick Court of Queen's Bench, Trial Division, stated that "it is improper, disrespectful and unethical for a Provincial Court judge to suggest that he might, by the arbitrary exercise of his judicial discretion, frustrate an order of the Court of Queen's Bench, the provisions of the Criminal Code and the orderly administration of criminal justice in the province" - See paragraph 99.

Criminal Law - Topic 10.8

Definitions - Court of criminal jurisdiction defined - The New Brunswick Court of Queen's Bench, Trial Division, stated that pursuant to s. 2 of the Criminal Code of Canada a Provincial Court judge was included in the definition of "court of criminal jurisdiction" only where he was trying a case without a jury under Part XVI of the Criminal Code - See paragraph 29.

Criminal Law - Topic 2818

Jurisdiction - "Exclusive" jurisdiction defined - Where an accused is charged with an indictable offence other than those set out in ss. 427 and 483 of the Criminal Code he has the right to elect trial by Provincial Court judge or Court of Queen's Bench judge with or without a jury - The New Brunswick Court of Queen's Bench, Trial Division, held that the right of election did not give either court exclusive jurisdiction - See paragraph 63.

Criminal Law - Topic 2832

Jurisdiction - Provincial Court judges (Magistrates) - "Absolute jurisdiction" - Meaning of - Section 483 of the Criminal Code lists the indictable offences falling within the absolute jurisdiction of a Provincial Court judge (magistrate) - The New Brunswick Court of Queen's Bench, Trial Division, held that absolute jurisdiction was not exclusive jurisdiction - See paragraphs 49 to 55.

Criminal Law - Topic 2833

Jurisdiction - Provincial Court judges (Magistrates) - "Concurrent" jurisdiction - Meaning of - The New Brunswick Court of Queen's Bench, Trial Division, stated that an accused's right to elect trial by Provincial Court judge or Court of Queen's Bench judge with or without a jury did not give the courts concurrent jurisdiction - The court stated that "jurisdiction is concurrent in two or more courts only if the party instituting the proceeding [Crown] has an unrestricted choice of forum" - See paragraphs 64 to 65.

Criminal Law - Topic 2834

Jurisdiction - Provincial Court judges (Magistrates) - Indictable offences - An accused charged with an indictable offence other than those found in ss. 427 and 483 of the Criminal Code has a right to elect trial by Provincial Court judge or Court of Queen's Bench judge with or without a jury - The New Brunswick Court of Queen's Bench, Trial Division, held that an election of trial by Provincial Court judge did not give that court exclusive or concurrent jurisdiction, nor did it offend the federal power to appoint judges under s. 96 of the Constitution Act - Therefore, the court held that the gradual increase in criminal jurisdiction of the Provincial Court was intra vires the federal Parliament - See paragraphs 23 to 82.

Criminal Law - Topic 3534

Preliminary inquiry - Jurisdiction - To convert trial into preliminary inquiry - Section 485 of the Criminal Code provides that during a trial before a Provincial Court judge, where it appears to the judge that "for any reason the charge should be prosecuted by indictment" he may decide not to adjudicate and convert the trial into a preliminary inquiry - The New Brunswick Court of Queen's Bench, Trial Division, held that s. 485 conferred on the Provincial Court judge a discretionary right, not an unfettered right - The court stated that there must be a reason for exercising the discretion and it must not be exercised "in a selective and discriminatory manner, not arbitrarily or idiosyncratically" - See paragraphs 84 to 96.

Cases Noticed:

McEvoy v. Attorney General of New Brunswick, [1983] 1 S.C.R. 704; 48 N.R. 228; 46 N.B.R.(2d) 219; 121 A.P.R. 219, consd. [para. 23].

R. v. Cooper (1955), 21 C.R. 263; refd to. [para. 49].

R. v. Holliday (1973), 12 C.C.C.(2d) 56, refd to. [para. 49].

Ex parte Walker (1974), 20 C.C.C.(2d) 539, refd to. [para. 49].

R. v. Coupland (1978), 14 A.R. 1; 45 C.C.C.(2d) 437 (C.A.), refd to. [para. 49].

Reference re Adoption Act, [1938] S.C.R. 398, refd to. [para. 81].

Reference re An Act Respecting the Jurisdiction of the Magistrate's Court (Que.), [1965] S.C.R. 772; 55 D.L.R.(2d) 70 (S.C.C.), refd to. [para. 81].

Neilsen and the Queen, Re (1973), 11 C.C.C.(2d) 532 (Ont. C.A.), affd. 14 C.C.C.(2d) 321 (S.C.C.), refd to. [para. 90].

R. v. Harrison (1954), 110 C.C.C. 255; 20 C.R. 148; 13 W.W.R.(N.S.) 708, refd to. [para. 93].

R. v. Nadeau (1971), 3 C.C.C.(2d) 276 (N.B.C.A.), refd to. [para. 94].

Cookson v. Knowles, [1979] A.C. 556, refd to. [para. 95].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(f), sect. 15(1) [para. 30].

Constitution Act, 1867, sect. 92(14) [para. 45]; sect. 96.

Criminal Code of Canada, R.S.C. 1927, c. 36, sect. 784 [para. 87].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 2 [para. 29]; sect. 427, sect. 428 [para. 28]; sect. 464(2) [para. 12]; sect. 469(1), sect. 469(3) [para. 13]; sect. 483 [para. 39]; sect. 485(1) [para. 85]; sect. 491 [para. 52].

Criminal Law, An Act respecting, S.C. 1869, c. 36, preamble [para. 76].

Improving the Administration of Justice in Criminal Cases, An Act for (1831), 1 Wm. IV, c. 14, sect. 8 [para. 72].

Proceedings on Indictment, An Act respecting, R.S.C. 1854, c. 158, sect. 3, [para. 73].

Prompt and Summary Administration of Criminal Justice in Certain Cases, An Act respecting, S.C. 1869, c. 32, sect. 2, sect. 3 [para. 77]; sect. 8 [para. 36].

Authors and Works Noticed:

Hogg, P.W., Constitutional Law of Canada (2nd Ed.), pp. 421-423 [para. 24].

Willis, John, Section 96 of the British North America Act (1940), 18 Can. Bar Rev. 517, pp. 523-526 [para. 57].

Lederman, W.R., The Independence of the Judiciary (1956), 34 Can. Bar Rev. 769, pp. 1166-1177 [para. 58].

Lederman, W.R., The Supreme Court of Canada and The Canadian Judicial System (1975), 13 Transactions of The Royal Society of Canada (Series IV) 209, p. 223 [para. 58].

Lederman, W.R., Continuing Canadian Constitutional Dilemmas (1981), p. 175 [para. 58].

Elliott, Robin, Case Comment: McEvoy v. Attorney General of New Brunswick (1982), 16 U.B.C.L. Rev. 313 [para. 58].

Oxner, Sandra E., The Lower Court of Nova Scotia (1984), 8 Dal. L.J. 59 [para. 75].

Hatherly, Mary E., A Survey of Courts of Criminal Jurisdiction in New Brunswick, Nova Scotia and Ontario [para. 83].

Counsel:

Glendon J. Abbott, for the applicant;

Thomas R. Evans, for the respondents.

This application was heard on May 5, 1986, before Stevenson, J., of the New Brunswick Court of Queen's Bench, Trial Division, who delivered the following judgment on May 8, 1986.