R. v. Canadian Pacific Ltd., (1976) 1 A.R. 177 (CA)

JudgeMcGillivray, C.J.A., McDermid, Prowse, Moir and Haddad, JJ.A.
CourtCourt of Appeal (Alberta)
Case DateOctober 29, 1976
Citations(1976), 1 A.R. 177 (CA)

R. v. Cdn. Pacific Ltd. (1976), 1 A.R. 177 (CA)

MLB headnote and full text

R. v. Canadian Pacific Ltd.

Indexed As: R. v. Canadian Pacific Ltd.

Alberta Supreme Court

Appellate Division

McGillivray, C.J.A., McDermid, Prowse, Moir and Haddad, JJ.A.

October 29, 1976.

Summary:

This case arose out of a charge of polluting a watercourse contrary to s. 9(1) of the Clean Water Act. The accused demanded particulars of the charge. The Crown delivered to the accused copies of statements of witnesses. Before trial the accused applied for dismissal of the charge on the ground that the Crown failed to provide adequate particulars. The trial judge granted the application and dismissed the charge.

The Crown then appealed by way of trial de novo to the District Court pursuant to s. 748 of the Criminal Code. Before trial in the District Court the accused applied for dismissal of the charge on the ground that "... there can be no appeal as what occurred in the summary conviction court was not a trial ...". The District Court rejected the application and set the appeal down for hearing.

Before the hearing by way of trial de novo the accused appealed to the Alberta Court of Appeal pursuant to s. 18 of the Summary Convictions Act. The Alberta Court of Appeal stated that the nature of the appeal under s. 18 of the Summary Convictions Act is the same as that granted under s. 771(1) of the Criminal Code.

The Alberta Court of Appeal held that in the circumstances the accused did not have a right to appeal to the Alberta Court of Appeal pursuant to s. 771(1) of the Criminal Code or s. 18 of the Summary Convictions Act.

The Alberta Court of Appeal stated that the setting down of the appeal for hearing did not constitute a "decision" as required by s. 771(1) of the Criminal Code or s. 18 of the Summary Convictions Act.

The Alberta Court of Appeal held that in the circumstances the Crown was not entitled to appeal the trial judge's dismissal of the charge to the District Court because the order made by the trial judge was not an acquittal or tantamount to an acquittal. The Alberta Court of Appeal referred to orders which are tantamount to acquittal - see paragraph 13. The Alberta Court of Appeal stated that the District Court exceeded its jurisdiction when it set the Crown's appeal down for trial.

The Alberta Court of Appeal quashed the order of dismissal by the trial judge and granted the Crown's application for a mandamus with certiorari in aid and directed that the trial judge dispose of the accused's application for dismissal in accordance with the law - see paragraphs 56 to 64. The Alberta Court of Appeal stated that the accused was entitled to particulars set out in brief statements which would be incorporated into the information. The Alberta Court of Appeal stated that the trial judge should have ordered the Crown supply particulars in the proper form - see paragraphs 27 and 28.

Administrative Law - Topic 3683

Mandamus - Mandamus to courts and judicial offices - Judicial duties - Declension of jurisdiction - A company was charged with polluting a water course - Before trial the accused applied for dismissal of the charge on the ground that the Crown failed to provide adequate particulars - The trial judge granted the application and dismissed the charge - The Alberta Court of Appeal stated that the trial judge should have ordered the Crown to supply particulars in the proper form rather than dismiss the charge - see paragraphs 27 to 29 - The Alberta Court of Appeal held that in such circumstances the dismissal of the charge by the trial judge constituted a declension of jurisdiction - The Alberta Court of Appeal quashed the order of dismissal and granted the Crown's application for mandamus with certiorari in aid and directed the trial judge to dispose of the accused's application in accordance with the law - See paragraphs 56 to 64.

Administrative Law - Topic 6444

Prohibition - Grounds for granting order - Excess of jurisdiction - In a summary conviction proceeding the Crown appealed an order by a trial judge which dismissed an information - The Crown appealed to the District Court pursuant to s. 748 of the Criminal Code and the District Court set the appeal down for trial - The order by the trial judge did not constitute an "order dismissing an information" as required by s. 748 - The Alberta Court of Appeal held that in such circumstances the District Court exceeded its jurisdiction when it set the appeal down for trial - The Alberta Court of Appeal granted the accused an order of prohibition with certiorari in aid - The Alberta Court of Appeal stated that the District Court when it set the appeal down for trial made an erroneous decision respecting the limits of its jurisdiction - See paragraphs 47 to 55.

Criminal Law - Topic 4244

Certificate or order of dismissal - When available - Criminal Code, s. 743 - The Alberta Court of Appeal stated that where an information is dismissed a defendant is entitled to a certificate of dismissal pursuant to s. 743 regardless of whether evidence was heard - See paragraph 65.

Criminal Law - Topic 4529

Procedure - Particulars - Sufficiency of particulars - Charge of polluting a watercourse - Following a demand for particulars the Crown supplied to the accused copies of statements from witnesses - The Alberta Court of Appeal stated that the accused was entitled to particulars set out in brief statements which would be incorporated into the information - The Alberta Court of Appeal stated that in such circumstances the trial judge should have ordered the Crown to supply particulars in the proper form - See paragraphs 27 and 28.

Criminal Law - Topic 7416

Summary conviction proceedings - Appeal by way of trial de novo - When available to the Crown - Criminal Code, s. 748 - The Alberta Court of Appeal stated that the Crown cannot appeal by way of trial de novo pursuant to s. 748 where an information is quashed because of some procedural or technical defect in the information - The Alberta Court of Appeal stated that in such circumstances the remedy of the Crown is by way of prerogative writs - See paragraphs 13 to 30.

Criminal Law - Topic 7416

Summary conviction procedures - Appeal by way of trial de novo - When available to the Crown - Criminal Code, s. 748(b)(i) - What constitutes an "order dismissing an information" - A company was charged with polluting a watercourse - Before trial the accused successfully applied for dismissal of the charge on the ground that the Crown failed to supply adequate particulars - The Crown then appealed to the District Court pursuant to s. 748 of the Criminal Code - The Alberta Court of Appeal held that in the circumstances such an appeal was not open to the Crown because the order made by the trial judge was not an acquittal or tantamount to an acquittal - The Alberta Court of Appeal stated that orders tantamount to an acquittal include orders based on the validity of a bylaw, orders based on a limitation period and orders based on the non-appearance of the prosecutor - See paragraph 13 - The Alberta Court of Appeal stated that the Crown should have applied for an order of mandamus with certiorari in aid - See paragraphs 14 to 30.

Criminal Law - Topic 7500

Summary conviction proceedings - Appeal by way of stated case - When available to the parties - Criminal Code, s. 762(1) - The Alberta Court of Appeal stated that an appeal by way of stated case is not available until a trial is concluded or until there has been a determination on the merits of the issue joined on entry of the plea - The Alberta Court of Appeal stated that an appeal by way of stated case only lies from a final judgment - See paragraphs 31 to 36.

Criminal Law - Topic 7609

Summary conviction proceedings - Appeal to a court of appeal pursuant to s. 771(1) of the Criminal Code - When available - What constitutes a "decision" on an appeal by way of trial de novo pursuant to s. 755 of the Criminal Code - On appeal by way of trial de novo a District Court judge dismissed a motion for dismissal and set the appeal down for hearing - The accused made the motion on the ground that the District Court judge lacked jurisdiction - The accused appealed the dismissal of the motion to the Alberta Court of Appeal pursuant to s. 771(1) of the Criminal Code - The Alberta Court of Appeal held that in such circumstances the accused did not have the right of appeal under s. 771(1) - The Alberta Court of Appeal stated that the setting of the appeal down for hearing did not dispose of the appeal - See paragraph 45 - The Alberta Court of Appeal held that "a decision of a court in respect of an appeal" required a final disposition of an appeal on any grounds, whether or not the grounds are erroneous - See paragraphs 37 to 46.

Words and Phrases

Decision - The Alberta Court of Appeal discussed the meaning of the word "decision" as found in s. 18 of the Alberta Summary Convictions Act - See paragraphs 37 to 46.

Words and Phrases

Decision - The Alberta Court of Appeal discussed the meaning of the word "decision" as found in s. 771(1) of the Criminal Code - See paragraphs 37 to 46.

Words and Phrases

Order dismissing an information - The Alberta Court of Appeal discussed the meaning of the phrase "order dismissing an information" as found in s. 748(b) (i) of the Criminal Code.

Cases Noticed:

Cheyenne Realty Ltd. v. Thompson et al. (1974), 1 N.R. 273; 42 D.L.R.(3d) 733, folld. [para. 16].

R. v. Tonner (1971), 3 C.C.C.(2d) 132, folld. [para. 18].

R. v. Sheets (1971), 1 C.C.C.(2d) 508; [1971] S.C.R. 614, folld. [para. 21].

Davey v. Bentinck, [1893] 1 Q.B. 185, folld. [para. 26].

Pratt v. A.A. Sites Ltd., [1938] 2 All E.R. 371, folld. [para. 32].

Re The Queen and Smith (1973), 16 C.C.C.(2d) 11 (N.B.C.A.), folld. [para. 33].

R. v. Zentner (1959), 125 C.C.C. 259, folld. [para. 33].

R. v. McIntyre (1973), 15 C.C.C.(2d) 65, folld. [para. 33].

Re Burchill, 7 N.B.R.(2d) 597, folld. [para. 33].

Dressler v. Tallman Gravel and Sand Supply Ltd., [1963] 1 C.C.C. 225, folld. [para. 34].

R. v. Tonner (1971), 3 C.C.C.(2d) 132, folld. [para. 35].

R. v. Dennis, 125 C.C.C. 321, folld. [para. 38].

R. v. Trussler (1961), 130 C.C.C. 132, not folld. [para. 40].

R. v. Barth, [1973] 3 W.W.R. 355, folld. [para. 43].

Zimmerman v. Farmers and Merchants Trust Company (1963-64), 45 W.W.R. 310, folld. [para. 43].

Bunbury v. Fuller (1853) 9 Ex. 111; 156 E.R. 47, folld. [para. 50].

R. v. The Justices of Middlesex, [1877] 2 Q.B.D. 516, folld. [para. 58].

Kipp v. A.G. for Ont., [1965] 2 C.C.C. 133, folld. [para. 59].

Re Samenuk, 125 C.C.C. 233, folld. [para. 61].

R. v. Cooper, [1971] 4 W.W.R. 621, not folld. [para. 65].

Blair and Karashowsky v. The Queen, [1975] 1 W.W.R. 723, folld. [para. 65].

R. v. Doyle (1976), 9 N.R. 285; 35 Cr. R. 1, folld. [para. 68].

R. v. Hodgins (1958), 121 C.C.C. 392, folld. [para. 70].

R. v. White (1958), 124 C.C.C. 91, folld. [para. 70].

R. v. Wilson, [1964] 1 C.C.C. 176, folld. [para. 70].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 743 [para. 65]; sect. 748(b)(i) [para. 7]; sect. 762(1) [para. 32]; sect. 771(1).

Summary Convictions Act, R.S.A. 1970, c. 355, sect. 18 [para. 44].

Authors and Works Noticed:

High's Extraordinary Legal Remedies (3rd Ed.) (1896), pp. 706 [para. 49]; 719 [para. 52].

Counsel:

J.S. Webb, for the respondent;

D.B. Hodges, for the appellant.

Judgment was delivered by the Alberta Court of Appeal on October 29, 1976 and the following opinions were filed:

PROWSE, J.A. - see paragraphs 1 to 65.

MOIR, J.A. - see paragraphs 66 to 73.

McGILLIVRAY, C.J.A. and McDERMID, J.A., concurred with PROWSE, J.A.

HADDAD, J.A., concurred with MOIR, J.A.

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33 practice notes
  • R. v. Domstad (L.M.), (2001) 285 A.R. 105 (QB)
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    • Court of Queen's Bench of Alberta (Canada)
    • February 28, 2001
    ...[para. 43, footnote 31]. R. v. Botting (1966), 3 C.C.C. 373 (Ont. C.A.), refd to. [para. 44, footnote 32]. R. v. Canadian Pacific Ltd. (1976), 1 A.R. 177; 32 C.C.C.(2d) 14 (C.A.), refd to. [para. 44, footnote 33]. R. v. Goldrick (1974), 17 C.C.C.(2d) 74 (Ont. H.C.), refd to. [para. 44, foot......
  • R. v. Adams (D.C.), 2001 ABQB 366
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    ...R. v. Vail, [1960] S.C.R. 913; 129 C.C.C. 145; 33 W.W.R.(N.S.) 325, refd to. [para. 13]. R. v. Canadian Pacific Ltd., [1977] 1 W.W.R. 203; 1 A.R. 177; 32 C.C.C.(2d) 14; 1 Alta. L.R.(2d) 193 (C.A.), refd to. [para. R. v. Hunt (1978), 25 N.S.R.(2d) 1; 36 A.P.R. 1; 39 C.C.C.(2d) 135 (C.A.), re......
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    ...426 (Ont. C.A.), consd. [para. 15]. R. v. Adams (D.C.) (2001), 290 A.R. 316 (Q.B.), refd to. [para. 15]. R. v. Canadian Pacific Ltd. (1976), 1 A.R. 177; 32 C.C.C.(2d) 14 (C.A.), refd to. [para. R. v. Music Explosion Ltd. (1996), 108 Man.R.(2d) 311 (Q.B.), consd. [para. 17]. Statutes Noticed......
  • Ochapowace Indian Band v. Saskatchewan (Minister of Justice), (2007) 304 Sask.R. 228 (CA)
    • Canada
    • Saskatchewan Court of Appeal (Saskatchewan)
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    ...Farmers & Merchants Trust Co., [1964] 2 C.C.C. 46 (Sask. C.A.), refd to. [para. 21]. R. v. Canadian Pacific Ltd., [1977] 1 W.W.R. 203; 1 A.R. 177; 32 C.C.C.(2d) 14, refd to. [para. R. v. Osgoode Sand & Gravel Ltd. (1978), 41 C.C.C.(2d) 503 (Ont. Div. Ct.), refd to. [para. 23]. R. v.......
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33 cases
  • R. v. Domstad (L.M.), (2001) 285 A.R. 105 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • February 28, 2001
    ...[para. 43, footnote 31]. R. v. Botting (1966), 3 C.C.C. 373 (Ont. C.A.), refd to. [para. 44, footnote 32]. R. v. Canadian Pacific Ltd. (1976), 1 A.R. 177; 32 C.C.C.(2d) 14 (C.A.), refd to. [para. 44, footnote 33]. R. v. Goldrick (1974), 17 C.C.C.(2d) 74 (Ont. H.C.), refd to. [para. 44, foot......
  • R. v. Adams (D.C.), 2001 ABQB 366
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • April 19, 2001
    ...R. v. Vail, [1960] S.C.R. 913; 129 C.C.C. 145; 33 W.W.R.(N.S.) 325, refd to. [para. 13]. R. v. Canadian Pacific Ltd., [1977] 1 W.W.R. 203; 1 A.R. 177; 32 C.C.C.(2d) 14; 1 Alta. L.R.(2d) 193 (C.A.), refd to. [para. R. v. Hunt (1978), 25 N.S.R.(2d) 1; 36 A.P.R. 1; 39 C.C.C.(2d) 135 (C.A.), re......
  • R. v. Laviolette (R.), (2005) 260 Sask.R. 121 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • February 2, 2005
    ...426 (Ont. C.A.), consd. [para. 15]. R. v. Adams (D.C.) (2001), 290 A.R. 316 (Q.B.), refd to. [para. 15]. R. v. Canadian Pacific Ltd. (1976), 1 A.R. 177; 32 C.C.C.(2d) 14 (C.A.), refd to. [para. R. v. Music Explosion Ltd. (1996), 108 Man.R.(2d) 311 (Q.B.), consd. [para. 17]. Statutes Noticed......
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    • March 20, 2007
    ...Farmers & Merchants Trust Co., [1964] 2 C.C.C. 46 (Sask. C.A.), refd to. [para. 21]. R. v. Canadian Pacific Ltd., [1977] 1 W.W.R. 203; 1 A.R. 177; 32 C.C.C.(2d) 14, refd to. [para. R. v. Osgoode Sand & Gravel Ltd. (1978), 41 C.C.C.(2d) 503 (Ont. Div. Ct.), refd to. [para. 23]. R. v.......
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