R. v. Chabot, (1980) 34 N.R. 361 (SCC)

• Judge: Martland, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday December 18, 1980
• Jurisdiction: Canada (Federal)
• Citations: (1980), 34 N.R. 361 (SCC);1980 CanLII 42 (SCC);1980 CanLII 54 (SCC);18 CR (3d) 258;[1980] 2 SCR 985;55 CCC (2d) 385;117 DLR (3d) 527;34 NR 361;[1980] 2 SCR 450

R. v. Chabot (1980), 34 N.R. 361 (SCC)

MLB headnote and full text

R. v. Chabot

Indexed As: R. v. Chabot

Supreme Court of Canada

Martland, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer, JJ.

December 18, 1980.

Summary:

This case arose out of a charge of second degree murder against the accused. Although he was charged with second degree murder, he was committed for trial on a charge of first degree murder after a preliminary inquiry. Subsequently, an indictment was filed with the Registrar, but the indictment was never put before a trial judge nor was the accused ever arraigned. The accused challenged the committal for trial by way of an application for habeas corpus with certiorari in aid on the ground that there was no power to commit for trial on a more serious offence than that charged. The Ontario Supreme Court dismissed the application and held that the committal was proper. The Ontario Court of Appeal allowed the appeal, set aside the committal order and remitted the matter to the provincial court judge to commit for trial on a charge of second degree murder, if so advised. The Crown appealed.

The Supreme Court of Canada dismissed the appeal.

Criminal Law - Topic 6

Definitions - Charge - Defined - The Supreme Court of Canada discussed the meaning of the word "charge" as used in the Criminal Code of Canada, R.S.C. 1970, c. C-34 - See paragraphs 50 to 51.

Criminal Law - Topic 3551

Preliminary inquiry - Powers of judge - General - The Supreme Court of Canada held that, where a judge conducts a preliminary inquiry, his powers are entirely statutory and must be found to have been conferred either expressly or by necessary implication - See paragraph 42.

Criminal Law - Topic 3556

Preliminary inquiry - Powers of judge - Committal of accused on charge different from charge on which preliminary inquiry held - The Supreme Court of Canada held that a judge conducting a preliminary inquiry may inquire into, and commit only on, the charge specified in the information or informations, including any included offences - The Supreme Court of Canada held that the judge may not commit for trial on an offence more serious than the one charged - See paragraphs 34 to 65.

Criminal Law - Topic 3606

Preliminary inquiry - Adjudication and review - Judicial review of committal order - Time for - The Supreme Court of Canada held that judicial review of a committal for trial after a preliminary inquiry was barred when an indictment is lodged against the accused at the opening of his trial with the court ready to proceed with the trial - See paragraphs 10 to 33.

Criminal Law - Topic 3701

Preliminary inquiry - Practice - General - The Supreme Court of Canada held that, although a preliminary hearing is not a trial, it must be conducted in a judicial manner - See paragraph 52.

Criminal Law - Topic 4262

Procedure - Indictment - Preferring of - The Supreme Court of Canada held that an indictment based upon a committal for trial without the intervention of a grand jury is not preferred against an accused until it is lodged with the trial court at the opening of the accused's trial with the court ready to proceed with the trial - See paragraphs 10 to 33.

Cases Noticed:

R. v. Doyle, [1977] 1 S.C.R. 597; 9 N.R. 285; 10 Nfld. & P.E.I.R. 45; 17 A.P.R. 45, refd to. [para. 6].

R. v. Nyczyk (1919), 31 C.C.C. 240 (Man. C.A.), consd. [para. 13].

R. v. Botting, [1966] 2 O.R. 121; 48 C.R. 73 (Ont. C.A.), consd. [paras. 13, 40].

Ex Parte Salajko (1974), 19 C.C.C.(2d)(Ont. H.C.), consd. [para. 13].

R. v. Morin (1917), 28 C.C.C. 269 (Que. K.B.), consd. [para. 13].

R. v. Sequin (1912), 20 C.C.C. 69 (Que. K.B.), consd. [para. 13].

R. v. Elliott, [1970] 2 O.R. 102, consd. [para. 16].

Re Beeds and the Queen (1972), 8 C.C. C.(2d) 462, folld. [para. 18].

Regina v. Philbin and Henderson (1978), 6 A.R. 506; 37 C.C.C.(2d) 528 (Alta. C.A.), consd. [para. 19].

R. v. Deol, Gill and Randev (1979), 20 A.R. 595; 12 C.R.(3d) 262 (Alta. Q.B.) consd. [para. 19].

Re Joly and the Queen (1978), 41 C.C. C.(2d) 538, consd. [para. 20].

R. v. Sednyk (1956), 23 C.R. 340 (Man. Q.B.), consd. [para. 21].

R. v. Harrigan and Graham (1976), 33 C.R.N.S. 60, consd. [para. 22].

Ex P. McGarth (1975), 23 C.C.C.(2d) 214 (B.C.S.C.), appld. [para. 30].

R. v. Mooney (1905), 15 Que. K.B. 57, consd. [para. 38].

R. v. Phillips (1906), 11 O.L.R. 478, consd. [para. 39].

R. v. Brown, [1895] 1 Q.B. 119, consd. [para. 39].

R. v. Beaudoin (1913), 22 C.C.C. 319, refd to. [para. 40].

Re Shumiatcher, [1964] 3 C.C.C.(Sask. C.A.) 359, refd to. [para. 40].

Re Carriere, Preet and Davidson (1970), 14 C.R.N.S. 20 (Ont. C.A.), refd to. [para. 40].

R. v. Monkman (1975), 30 C.R.N.S. 338 (Man. C.A.), refd to. [para. 40].

R. v. Eusler and Budovitch (1978), 23 N.B.R.(2d) 643; 44 A.P.R. 643; 43 C.C.C.(2d) 501 (N.B.C.A.) [para. 40].

In re Criminal Code (1910), 43 S.C.R. 434, appld. [para. 50].

R. v. D'Eyncourt (1888), 21 Q.B.D. 109, appld. [para. 50].

Stirland v. Director of Public Prosecutions, [1944] A.C. 315, appld. [para. 50].

Arnell v. Harris [1945] K.B. 60, appld. [para. 50].

United States v. Patterson (1893), 150 U.S.R. 65, 68, appld. [para. 51].

Patterson and The Queen, [1970] S.C.R. 409, appld. [para. 52].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 463 [para. 44]; sect. 464(4) [para. 46]; sect. 465(1)(h) [para. 54]; sect. 469(1) [para. 66]; sect. 473, sect. 474 [para. 53]; sect. 475(1) [para. 59]; sect. 507 [para. 15]; sect. 507.1(1) [para. 30].

Authors and Works Noticed:

Black's Law Dictionary (5th Ed.) [para. 50].

Jowitt's Dictionary of English Law (2nd Ed.) [para. 50].

Salhany, Canadian Criminal Procedure (3rd Ed.), p. 100 [para. 53].

Stephen, James, History of the Criminal Law of England, vol. 1, p. 221 [para. 36].

Tremeear's Annotated Criminal Code (6th Ed.), p. 836 [para. 13].

Counsel:

David H. Doherty, for the appellant;

Donald B. Bayne and Alan D. Gold, for the respondent.

This case was heard on May 27 and 28, 1980, at Ottawa, Ontario, before MARTLAND, DICKSON, BEETZ, ESTEY, McINTYRE, CHOUINARD and LAMER, JJ., of the Supreme Court of Canada.

On December 18, 1980, DICKSON, J., delivered the following judgment for the Supreme Court of Canada: