R. v. Charters, (1986) 71 N.B.R.(2d) 31 (PC)

• Judge: Harper, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: March 07, 1986
• Jurisdiction: New Brunswick
• Citations: (1986), 71 N.B.R.(2d) 31 (PC)

R. v. Charters (1986), 71 N.B.R.(2d) 31 (PC);

    71 R.N.-B.(2e) 31; 182 A.P.R. 31

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R. v. Charters

Indexed As: R. v. Charters

Répertorié: R. v. Charters

New Brunswick Provincial Court

Criminal Division

Harper, P.C.J.

March 7, 1986.

Summary:

Résumé:

Charters was charged with two offences under the Narcotic Control Act. On June 7, 1985, Charters appeared before the Provincial Court and elected trial by judge and jury on both charges. A preliminary inquiry was held and Charters was committed for trial. On February 26, 1986, Charters appeared before the Provincial Court and filed with the court a notice of intent to re-elect trial by Provincial Court judge. The court then informed counsel that it could not accept a reelection to Provincial Court because both charges involved maximum penalties of imprisonment for life and the court had concluded that no inferior court presided over by a provincially appointed judge could legally exercise what amounts to concurrent jurisdiction with a superior court in matters involving serious indictable offences.

Civil Rights - Topic 3138

Trials, due process, fundamental justice and fair hearings - Criminal proceedings - Right to jury - The New Brunswick Provincial Court, Criminal Division, stated that s. 15(1) of the Charter, which provides that every individual is equal before the law, reinforces the right to trial by jury in s. 11(f) of the Charter.

Civil Rights - Topic 3138

Trials, due process, fundamental justice and fair hearings - Criminal proceedings - Right to jury - The New Brunswick Provincial Court, Criminal Division, stated that s. 11(1)(f) of the Charter provides an independent right to trial by jury apart from the Code and that the effect of the Charter and the Code was to give an accused who chooses to be tried before an inferior court (Provincial Court) the absolute constitutional right to demand that a jury be empanelled to sit in the Provincial Court.

Criminal Law - Topic 2821

Jurisdiction - Provincial Court judges - General principles - The New Brunswick Provincial Court, Criminal Division, stated that jurisdiction cannot vest through usage - See paragraph 32.

Criminal Law - Topic 2832

Jurisdiction - Provincial Court judges - Absolute jurisdiction of Provincial Court judges - The New Brunswick Provincial Court, Criminal Division, stated that under s. 483 of the Code absolute and exclusive jurisdiction is prima facie passed by Parliament to the inferior courts over many of the more serious offences contained in the Code which may or must be prosecuted by way of indictment - See paragraph 84.

Criminal Law - Topic 2834

Jurisdiction - Provincial Court judges - Indictable offences - The New Brunswick Provincial Court, Criminal Division, stated that jurisdiction in Provincial Courts over trials involving serious indictable offences was purely statutory and any jurisdiction not specifically delegated to either a superior or to an inferior court of criminal jurisdiction falls within the jurisdiction of the superior court - See paragraphs 28 to 30.

Criminal Law - Topic 2834

Jurisdiction - Provincial Court judges - Indictable offences - The New Brunswick Provincial Court, Criminal Division, stated that because of the wording of the Code when any accused charged with an indictable offence elects trial by Provincial Court judge, that court alone becomes exclusively vested with the jurisdiction to try the accused - Because the Provincial Court is not constitutionally vested with the jurisdiction to try the accused, and there is no alternative court empowered to conduct the trial, the accused must of necessity escape liability completely for there is no court empowered to try him - See paragraph 103.

Criminal Law - Topic 2834

Jurisdiction - Provincial Court judges - Indictable offences - The New Brunswick Provincial Court, Criminal Division, stated that under the Code as it stands today all inferior criminal courts in Canada already possess concurrent jurisdiction with s. 96 judges, and the election of the accused is merely the "trigger of the trial process" and nothing else - See paragraph 107.

Criminal Law - Topic 2840

Jurisdiction - Consent jurisdiction - Election and re-election - General - The New Brunswick Provincial Court, Criminal Division, stated that jurisdiction can never vest by consent - It either exists or it does not; a court is either vested with it, or it is not and no consent on the part of the parties concerned can affect the situation - See paragraph 18.

Criminal Law - Topic 2845

Jurisdiction - Consent jurisdiction - Election and re-election - General - Election by accused - The New Brunswick Provincial Court, Criminal Division, stated that when an accused elects to be tried by an inferior court pursuant to s. 464(2) of the Code, the consent that is given is that of the accused and not that of the superior court - At that point the inferior court becomes exclusively vested with jurisdiction to try the accused to the complete exclusion of the s. 96 court - See paragraph 78.

Criminal Law - Topic 2845

Jurisdiction - Consent jurisdiction - Election and re-election - General - Election by accused - The New Brunswick Provincial Court, Criminal Division, stated that s. 464(2) of the Code, which allows an accused to elect to be tried by an inferior court, is repugnant to s. 96 of the Constitution Act (1982), and is therefore void and inoperative under s. 52 (1) of that Act because at the instance of the accused alone, it transforms an inferior court to a superior court - See paragraphs 91 and 98.

Criminal Law - Topic 8704

Juveniles - General principles - Jurisdiction of court - The New Brunswick Provincial Court, Criminal Division, discussed the Provincial Court's jurisdiction over young offenders and stated that it is only where Youth Court judges are judges of a superior court of criminal jurisdiction that the Youth Court is properly vested with jurisdiction - See paragraphs 133 to 139.

Cases Noticed:

R. v. Holliday (1973), 12 C.C.C.(2d) 56, refd to. [para. 21].

In Re Sproule (1886), 12 S.C.R. 140, refd to. [para. 26].

Port Arthur and Rainy River Provincial Election (No. 3), Re, 13 O.L.R. 17, refd to. [para. 29].

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; 29 C.C.C.(2d) 179; 68 D.L.R.(3d) 270; 35 C.R.N.S. 1, appld. [para. 30].

Peacock v. Bell, 85 E.R. 84, refd to. [para. 31].

R. v. Boggs (1981), 19 C.R.(3d) 245, refd to. [para. 36].

McEvoy v. Attorney General of New Brunswick and the Attorney General of Canada, [1983] 1 S.C.R. 704; 48 N.R. 278, consd. [para. 45].

R. v. Y.D., 67 N.B.R.(2d) 269; 172 A.P.R. 269, consd. [para. 115].

Re B.C. Family Relations Act, [1982] 1 S.C.R. 62; 40 N.R. 206, refd to. [para. 126].

Statutes Noticed:

Constitution Act, 1867 [paras. 12, 45].

Canadian Charter of Rights and Freedoms, 1982, sect. 11(f) [paras. 58, 60, 70, 112, 113, 119, 144]; sect. 15(1) [paras. 59, 70, 113, 119]; sect. 24(1) [paras. 119]; sect. 52(1) [paras. 44, 119].

Constitution Act, 1982, sect. 91 [paras. 9, 11]; sect. 92 [paras. 9, 11]; sect. 96 [paras. 44, 61, 86, 91, 139, 154]; sect. 101 [para. 105].

Constitutional Questions Act, R.S.S. 1978, c. C-29 [para. 64].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 50 [para. 122]; sect. 52 [para. 122]; sect. 53 [para. 122]; sect. 76.1 [para. 122]; sect. 186 [para. 84]; sect. 187 [para. 84]; sect. 189 [para. 84]; sect. 192 [para. 84]; sect. 193 [para. 84]; sect. 238(3) [paras. 37, 38, 41]; sect. 242(2) [para. 84]; sect. 242(4) [para. 41]; sect. 245.2 [para. 65]; sect. 294(b)(i) [para. 84]; sect. 313(b)(i) [para. 84]; sect. 320(2) [para. 84]; sect. 338(1) [para. 84]; sect. 338(1)(b)(i) [para. 84]; sect. 426 [paras. 20, 23]; sect. 427 [paras. 44, 82]; sect. 428 [para. 55]; sect. 457(5.1)(d) [para. 2]; sect. 464(2) [paras. 8, 18, 52, 60, 92, 98, 101]; sect. 469(1) [para. 6]; sect. 475(1)(a)(i) [para. 5]; sect. 476(1) [para. 5]; sect. 483 [paras. 22, 23, 32, 93, 101]; sect. 484(2) [para. 3]; sect. 491(2) [para. 8]; sect. 491(6) [para. 6]; sect. 491(7)(b) [para. 7]; sect. 498 [paras. 56, 57, 89].

Judicature Act, R.S.N.B. 1973, c. J-2, sect. 22(3) [para. 120].

Juvenile Delinquents Act, R.S.C. 1970, c. J-3 [para. 119].

Narcotic Control Act, R.S.C. 1970, c. N-1 [para. 1].

Young Offenders Act, S.C. 1980-81-82-83, c. 110, sect. 3(1)(e) [paras. 143, 144, 145]; sect. 5(1) [paras. 67, 133]; sect. 16 [para. 133]; sect. 16(8) [para. 133]; sect. 16(11) [para. 133]; sect. 47(2) [para. 133]; sect. 52(1) [para. 69]; sect. 55 [para. 133].

Authors and Works Noticed:

LaForest, The Canadian Charter of Rights and Freedoms: An Overview, 61 Can. Bar. Rev. 19 [para. 13].

Salhany, Canadian Criminal Procedure (2nd Ed.) [para. 19].

Williston and Rolls, The Law of Civil Procedure (1970), vol. 1 [para. 25].

Corpus Juris Secundum, vol. 50 [para. 43].

Halsbury's Laws of England (3rd Ed.), vol. 9, pp. 348-350 [para. 122].

John P. McEvoy, R. v. Y.D. Comment, 2 Solicitors Journal, p. 5 [para. 146].

Counsel:

[None disclosed.]

This action was heard before Harper, P.C.J., of the New Brunswick Provincial Court, Criminal Division, who delivered the following judgment on March 7, 1986.