R. v. Boylan, (1979) 3 Sask.R. 157 (CA)

Judge:Culliton, C.J.S., Brownridge and Bayda, JJ.A.
Court:Court of Appeal for Saskatchewan
Case Date:March 20, 1979
Jurisdiction:Saskatchewan
Citations:(1979), 3 Sask.R. 157 (CA);1979 CanLII 2333 (SK CA);46 CCC (2d) 415;3 Sask R 157;[1979] 3 WWR 435;8 CR (3d) 36
 
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R. v. Boylan (1979), 3 Sask.R. 157 (CA)

MLB headnote and full text

R. v. Boylan

Indexed As: R. v. Boylan

Saskatchewan Court of Appeal

Culliton, C.J.S., Brownridge and Bayda, JJ.A.

March 20, 1979.

Summary:

This case arose out of a charge of theft. The accused elected trial by a judge without a jury and following a preliminary inquiry the accused was committed to stand trial. At the preliminary inquiry the record of the evidence was taken by a sound recording machine which malfunctioned and none of the evidence taken was recorded. The accused applied by way of certiorari to quash the committal order on the ground that the committal was void because of the lack of a record of the evidence taken at the preliminary inquiry as required by s. 468(1)(b)(ii).

The Court of Queen's Bench dismissed the application. The accused appealed to the Saskatchewan Court of Appeal.

The Saskatchewan Court of Appeal allowed the appeal and quashed the order of committal. The Court of Appeal held that the requirement of a record of the evidence at a preliminary inquiry pursuant to s. 468(1)(b) of the Criminal Code was a mandatory enactment which was obligatory.

Criminal Law - Topic 3604

Preliminary inquiry - Judicial review of a committal order - Effect of failure of sound recording equipment and consequent lack of record of proceedings of a preliminary inquiry - The Saskatchewan Court of Appeal quashed an order of committal where there was no record of the evidence taken at a preliminary inquiry - The Court of Appeal held that the requirement of a record of the evidence at a preliminary inquiry pursuant to s. 468(1)(b) of the Criminal Code was a mandatory enactment which was obligatory and was not directory only - The Court of Appeal stated that the existence of only a partial record of the evidence taken at a preliminary inquiry does not necessarily constitute noncompliance with s. 468(1)(b) of the Criminal Code - See paragraph 31.

Statutes - Topic 5130

Operation and effect - Mandatory acts - The Saskatchewan Court of Appeal referred to tests for determination of whether a mandatory enactment is obligatory or directory only - See paragraph 28.

Criminal Law - Topic 3590

Preliminary inquiry - Evidence - Record of evidence - Criminal Code, s. 468(1)(b) - The Saskatchewan Court of Appeal stated that the requirement of a record of the proceedings at a preliminary inquiry is primarily for the protection of the accused - See paragraph 30.

Criminal Law - Topic 3604

Preliminary inquiry - Judicial review of a committal order - The Saskatchewan Court of Appeal stated that certiorari proceedings are available to review an order of committal following a preliminary inquiry because there is no right of appeal from such an order - See paragraph 33.

Cases Noticed:

R. v. Czyszczon, [1963] 3 C.C.C. 106, refd to. [para. 7].

R. v. Pratt (1946), 88 C.C.C. 107, refd to. [para. 7].

R. v. Fialka, 62 C.C.C. 38, refd to. [para. 8].

Montreal Street Railway Co. v. Normandin (1917), 33 D.L.R. 195, refd to. [para. 9].

R. v. Evans, ex parte Evdokimoff, [1968] 2 C.C.C. 37, refd to. [para. 11].

R. v. Hector (1975), 12 N.B.R.(2d) 701; 10 A.P.R. 701, refd to. [paras. 12, 55].

R. v. Pozdin (1972), 17 C.R.N.S. 197, refd to. [paras. 12, 59].

Rupert and Frith, 3 C.R.(3d) 351, refd to. [para. 17].

R. v. Blanchard (1965), 53 W.W.R. 687, refd to. [paras. 19, 42].

R. v. Lacasse (1972), 8 C.C.C.(2d) 270, refd to. [paras. 20, 42].

Collinge v. Gee, [1968] S.C.R. 948, refd to. [para. 21].

R. v. Mojelski (1968), 65 W.W.R. 565, refd to. [para. 24].

Sanders v. The Queen, [1970] S.C.R. 109, refd to. [para. 32].

R. v. Shumiatcher, [1964] 3 C.C.C. 359, refd to. [paras. 33, 46].

R. v. Cyzszczon (1963), 43 W.W.R. 247, refd to. [para. 39].

Patterson v. The Queen, [1970] S.C.R. 409, refd to. [para. 43].

R. v. Nat Bell Liquors Limited, [1922] 2 W.W.R. 30, refd to. [para. 45].

Shumiatcher v. Elliott et al. (1961-62), 36 W.W.R. 301, refd to. [para. 46].

R. v. Pickett (1976), 28 C.C.C.(2d) 297, refd to. [para. 47].

R. v. Schellenberg (1958), 122 C.C.C. 132, refd to. [para. 47].

R. v. Gibbon, [1965] 3 C.C.C. 277, refd to. [para. 47].

Re Regina v. Marcoux et al., [1973] 6 W.W.R. 201, refd to. [para. 47].

R. v. Martin, 20 N.R. 373; [1978] 2 S.C.R. 511, refd to. [para. 48].

Re Robar and The Queen (1978), 27 N.S.R.(2d) 459; 41 A.P.R. 459; 42 C.C.C.(2d) 133, refd to. [para. 53].

Statutes Noticed:

Criminal Code, sect. 468(1)(b)(ii).

Authors and Works Noticed:

Driedger, Elmer A., The Construction of Statutes [para. 25].

Craies on Statute Law (7th Ed.), p. 262.

Counsel:

Jane L. Lancaster, for the appellant;

Alistair B. Johnston, for the Crown.

This appeal was heard by CULLITON, C.J.S., BROWNRIDGE and BAYDA, JJ.A., of the Saskatchewan Court of Appeal. The judgment of the Court of Appeal was delivered at Regina, Saskatchewan, on March 20, 1979, and the following opinions were filed:

CULLITON, C.J.S. - see paragraphs 1 to 35;

BROWNRIDGE, J.A. - see paragraphs 36 to 60.

BAYDA, J.A., concurred with CULLITON, C.J.S.

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