R. v. Banks (R.L.), (1997) 157 N.S.R.(2d) 317 (SC)

Judge:Hall, J.
Court:Supreme Court of Nova Scotia
Case Date:February 08, 1997
Jurisdiction:Nova Scotia
Citations:(1997), 157 N.S.R.(2d) 317 (SC)
 
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R. v. Banks (R.L.) (1997), 157 N.S.R.(2d) 317 (SC);

    462 A.P.R. 317

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Her Majesty the Queen v. Ronnie Lee Banks

(No. C.R. SSB 914)

Indexed As: R. v. Banks (R.L.)

Nova Scotia Supreme Court

Hall, J.

February 8, 1997.

Summary:

At issue was whether an accused could be charged under s. 127 of the Criminal Code for breach of a probation order made under s. 737(1)(b). Charges were not laid under s. 740 (dealing with breach of probation) since the procedural requirements under s. 737(4) had not been complied with.

The Nova Scotia Supreme Court dismissed the charge against the accused.

Criminal Law - Topic 5731

Punishments (sentence) - Probation order - Breach of - At issue was whether an accused could be charged under s. 127 of the Criminal Code for breach of a proba­tion order made under s. 737(1)(b) - Charges could not be laid under s. 740 (breach of probation) since procedural requirements were not complied with - Under s. 127(1), a person who, without lawful excuse, disobeyed a lawful order was, unless a punishment or other mode of proceedings was expressly provided by law, guilty of an indictable offence - The Nova Scotia Supreme Court dismissed the charge against the accused - A probation order was not a lawful order under s. 127 and came within the exception stipulated in s. 127 - There were vast differences in pro­cedure and punishments under ss. 127 and 740 - Proceeding under s. 127 as a result of the Crown's failure to comply with s. 737 was unfair to the accused.

Cases Noticed:

R. v. Piche (1976), 31 C.C.C.(2d) 150 (Sask. Q.B.), refd to. [para. 5].

R. v. Bara (1981), 58 C.C.C.(2d) 243 (B.C.C.A.), refd to. [para. 5].

R. v. Clement (1981), 38 N.R. 302; 10 Man.R.(2d) 92; 61 C.C.C.(2d) 449 (S.C.C.), refd to. [para. 12].

R. v. Dawson (E.F.) (1995), 143 N.S.R.(2d) 1; 411 A.P.R. 1 (C.A.), refd to. [para. 13].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 127(1), sect. 740(1) [para. 6].

Counsel:

Craig M. Harding, for the Crown;

Donald Miller, for the defence.

This case was heard at Shelburne, Nova Scotia, by Hall, J., of the Nova Scotia Supreme Court, who delivered his decision orally on February 8, 1997, and filed the follow­ing written reasons on March 6, 1997.

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