R. v. Anderson, (1983) 49 A.R. 122 (CA)

• Judge: McGillivray, C.J.A., Moir and Kerans, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 23, 1983
• Citations: (1983), 49 A.R. 122 (CA)

R. v. Anderson (1983), 49 A.R. 122 (CA)

MLB headnote and full text

R. v. Anderson

(15869)

Indexed As: R. v. Anderson

Alberta Court of Appeal

McGillivray, C.J.A., Moir and Kerans, JJ.A.

November 23, 1983.

Summary:

The accused was charged with an alcohol related driving offence. An information was sworn and the accused was scheduled to appear pursuant to an appearance notice. On that date the accused appeared but no one told the judge of his presence. The judge did nothing with respect to the information and there was no discussion of an adjournment. Subsequently the police told the accused to appear on another day. On that day the accused's counsel appeared alone and argued that the court lost jurisdiction over the information. The trial judge ruled that he had jurisdiction. The accused appeared and pleaded to the charge. The case was then adjourned and the accused sought an order prohibiting the trial judge from proceeding. The Alberta Court of Queen's Bench, in a decision unreported in this series of reports, refused to grant the order. The accused appealed.

The Alberta Court of Appeal, McGillivray, C.J.A., dissenting, dismissed the appeal.

Criminal Law - Topic 2809

Jurisdiction - General principles - Jurisdiction over offence and over accused distinguished - The Alberta Court of Appeal distinguished between "loss of jurisdiction over the person" and "loss of jurisdiction over the offence" - See paragraph 5.

Criminal Law - Topic 2823

Jurisdiction - Provincial Court Judges (Magistrates) - Discretionary powers when acting under Criminal Code - The Alberta Court of Appeal stated that in the absence of serious general inconvenience, injustice to the accused, or any indication that the main object of the Criminal Code is thereby thwarted, the powers given to a justice under the Criminal Code necessarily are accompanied by a discretion as to when and in what circumstances he will exercise them - See paragraphs 42 to 47.

Criminal Law - Topic 2942

Jurisdiction - Loss or suspension of jurisdiction - Acts resulting in - The Alberta Court of Appeal stated that, if an accused appears before a justice as required by an appearance notice, and the justice then refuses to do any of several things authorized for him to do, there would be a fatal jurisdictional error - See paragraph 7.

Criminal Law - Topic 2945

Jurisdiction - Loss of - Failure of judge to proceed on date in appearance notice - An accused was present in court pursuant to an appearance notice - No one told the justice of his presence, the justice did nothing regarding the information, and no adjournment was discussed - Subsequently, the police told the accused to appear on another day - The accused argued that the justice lost jurisdiction over the information - The Alberta Court of Appeal affirmed that the justice did not lose jurisdiction for doing nothing on the day when the accused was first to appear in response to the appearance notice - See paragraphs 1 to 59.

Criminal Law - Topic 3234

Warrants - Issue of warrant for non-appearance - Discretion of judge - The Alberta Court of Appeal stated that a justice is required to consider the exercise of his power to issue a warrant for arrest for non-appearance, granted in s. 456.1(2)(b) of the Criminal Code, only when he is requested to do so - See paragraphs 42 to 47.

Criminal Law - Topic 3262

Compelling appearance - Appearance and appearance notice - Effect of procedural defects - The Alberta Court of Appeal concluded that the object of the Criminal Code was that there be no nullifying consequences for breach of the procedural requirements in connection with appearance notices - See paragraphs 48 to 51.

Criminal Law - Topic 3264

Compelling appearance - Appearance and appearance notice - Duty of judge when accused appears - The Alberta Court of Appeal discussed what a justice is required to do on the day an accused is scheduled to attend court pursuant to an appearance notice - See paragraphs 23 to 41.

Criminal Law - Topic 3265

Compelling appearance - Appearance and appearance notice - Attendance - Defined - The Alberta Court of Appeal held that an accused who appeared in court on a date set in an appearance notice, but who did not make his presence known to the presiding justice, could not be said to have "attended" as required by the appearance notice - See paragraphs 8 to 22.

Criminal Law - Topic 3274

Summons - Issue of summons - Power of judge to issue summons after appearance notice - The Alberta Court of Appeal stated that a justice has power to issue a summons when he receives an information after an appearance notice has been issued - See paragraphs 36 to 41.

Words and Phrases

To attend court - The Alberta Court of Appeal discussed the meaning of the phrase "to attend court" as it relates to an accused required to attend court pursuant to an appearance notice - See paragraphs 8 to 22.

Cases Noticed:

R. v. Gougeon et al. (1981), 55 C.C.C.(2d) 218 (Ont. C.A.), refd to. [paras. 5, 50].

R. v. Harnish (1979), 38 N.S.R.(2d) 273; 69 A.P.R. 273; 49 C.C.C.(2d) 190 (N.S.C.A.), refd to. [paras. 5, 50].

R. v. Doyle (1976), 9 N.R. 285; 10 Nfld. & P.E.I.R., 45; 17 A.P.R. 45; 29 C.C.C.(2d) 177, refd to. [para. 5].

R. v. Mack, [1976] 1 W.W.R. 657, refd to. [paras. 5, 56].

R. v. Thompson (1980), 34 N.R. 271; 25 A.R. 127; 108 D.L.R.(3d) 347 (S.C.C.), refd to. [para. 7].

R. v. Krannenburg (1980), 31 N.R. 206; 51 C.C.C.(2d) 205 (S.C.C.), refd to. [para. 7]; dist. [para. 29].

R. v. Baert (1981), 28 A.R.(2d) 323, refd to. [para. 18].

R. v. Crawford (1912), 2 W.W.R. 952, refd to. [para. 18].

Trenholm, Re (1940), 73 C.C.C. 129 (S.C.C.), dist. [para. 25].

R. v. Light, [1969] 1 C.C.C. 46, refd. to. [paras. 25, 54].

Kuhn and The Queen, Re (1975), 19 C.C.C.(2d) 556, refd to. [para. 27].

R. v. Dickie, [1981] 3 W.W.R. 194; 26 A.R. 176 (Alta. C.A.), refd to. [para. 34].

R. v. Keating (1973), 11 C.C.C.(2d) 133 (Ont. C.A.), refd to. [para. 34].

R. v. MacAskill (1981), 45 N.S.R.(2d) 181; 86 A.P.R. 181; 58 C.C.C.(2d) 361 (N.S.C.A.), refd to. [para. 35].

R. v. Peters, Re (1982), 22 Sask.R. 278; 63 C.C.C.(2d) 106 (Sask. Q.B.), refd to. [para. 35].

Andruchow, Re, [1977] 4 W.W.R. 229; 6 A.R. 18 (Alta. S.C.T.D.), refd to. [para. 39].

Fleming, Re (1979), 47 C.C.C.(2d) 406 (B.C.S.C.), refd to. [para. 39].

R. v. Benteau (1975), 24 C.C.C.(2d) 96 (Ont. H.C.), refd to. [para. 39].

R. v. Powers, Re (1973), 10 C.C.C.(2d) 395, refd to. [para. 39].

R. v. Hrankowski (1980), 22 A.R. 597; 54 C.C.C.(2d) 174 (Alta. C.A.); leave to appeal to the S.C.C. denied (1980), 26 A.R. 268, refd to. [paras. 40, 50].

R. v. Tithe Commissioners (1849), 14 Q.B. 459, refd to. [para. 45].

Montreal Street Railway v. Normandin, [1917] A.C. 170, refd to. [para. 45].

R. v. Geszthelyi (1977), 33 C.C.C.(2d) 543 (B.C.C.A.), refd to. [para. 48].

Chung, Ex parte (1976), 26 C.C.C.(2d) 497 (B.C.C.A.), refd to. [para. 48].

R. v. Whitmore (1976), 18 N.S.R.(2d) 292; 20 A.P.R. 292 (N.S.C.A.), refd to. [para. 50].

R. v. Naylor (1978), 42 C.C.C.(2d) 12 (Ont. C.A.), refd to. [para. 50].

R. v. MacDonald (1980), 24 Nfld. & P.E.I.R. 485; 65 A.P.R. 485 (P.E.I.S.C.), refd to. [para. 50].

R. v. McGinnis, [1980] 2 W.W.R. 89; 19 A.R. 249 (Alta. C.A.), refd to. [para. 50].

R. v. Maximick (1979), 10 C.R.(3d) 97 (B.C.C.A.), refd to. [para. 50].

R. v. Bottley (1980), 51 C.C.C.(2d) 384, refd to. [para. 57].

Statutes Noticed:

Bail Reform Act, S.C. 1970-71, c. C-2 (2nd Supp.) [para. 9].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 440.1 [para. 32]; sect. 453.3 [paras. 9, 50]; sect. 455.1 [paras. 39, 50]; sect. 455.3(1) [para. 38]; sect. 455.4(1)(b) [para. 28]; sect. 456.1(2) [paras. 10, 23, 42]; sect. 463 [para. 9]; sect. 484(2) [para. 48]; sect. 735(1) [para. 9].

Interpretation Act, R.S.C. 1970, c. I-23, sect. 26(3), sect. 28 [para. 44].

Authors and Works Noticed:

Shorter Oxford English Dictionary [para. 12].

Petit Robert [para. 14].

Counsel:

K.E. Tjosvold, for the Crown;

M.H. Clancy, for the appellant (Anderson).

This appeal was heard before McGillivray, C.J.A., Moir and Kerans, JJ.A., of the Albert Court of Appeal. On November 23, 1983, the following opinions were filed:

Kerans, J.A. (Moir, J.A., concurring) - see paragraphs 1 to 59;

McGillivray, C.J.A. (dissenting) - see paragraphs 60 to 63.