R. v. Clark (B.K.), (1986) 70 N.B.R.(2d) 13 (PC)

JudgeHarper, P.C.J.
CourtProvincial Court of New Brunswick (Canada)
Case DateMarch 05, 1986
JurisdictionNew Brunswick
Citations(1986), 70 N.B.R.(2d) 13 (PC)

R. v. Clark (B.K.) (1986), 70 N.B.R.(2d) 13 (PC);

    70 R.N.-B.(2e) 13; 179 A.P.R. 13

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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R. v. Clark

Indexed As: R. v. Clark (B.K.)

Répertorié: R. v. Clark (B.K.)

New Brunswick Provincial Court

Harper, P.C.J.

March 5, 1986.

Summary:

Résumé:

Clark was charged with wilfully doing an indecent act in the presence of another person by exposing his bare buttocks, contrary to s. 169(a) of the Criminal Code of Canada. After the Crown closed its case, Clark challenged the sufficiency of the information on the ground that it did not comply with s. 510(3) of the Code.

The New Brunswick Provincial Court dismissed the information and found Clark not guilty. The court held that the information was insufficient in detail as required by s. 510(3), in that it failed to aver that the alleged act was committed "in a public place" or "with intent to insult or offend any person". The court also stated that an information which violated s. 510(3) was wholly bad and could not be amended.

Courts - Topic 5

Stare decisis - Precedents - Authority and use of - A judge of the New Brunswick Provincial Court refused to be bound by a decision of the New Brunswick Court of Appeal which the trial judge perceived to be "in my humble opinion bad law" and in conflict with a Supreme Court of Canada decision - The trial judge held that the Supreme Court of Canada decision took precedence - See paragraphs 63 to 64.

Courts - Topic 79

Stare decisis - Prior decisions of same court - Supreme Court of Canada - The New Brunswick Provincial Court stated that where there were two conflicting Supreme Court of Canada decisions the later decision was considered the law and by necessary inference overruled at least that part of the earlier decision that conflicted with it - See paragraph 39.

Courts - Topic 2186

Jurisdiction - Loss or termination of (functus officio) - Criminal trials - The New Brunswick Provincial Court held that it was a statutory court with no inherent jurisdiction, therefore at the close of argument in a criminal trial the court was functus officio for all matters excepting delivery of the judgment - See paragraphs 78 to 79.

Criminal Law - Topic 699

Sexual offences - Particular offences - Indecent act in public place - Clark was charged with committing an indecent act by exposing his bare buttocks, contrary to s. 169(a) of the Criminal Code of Canada - The New Brunswick Provincial Court dismissed the information for noncompliance with s. 510(3) of the Code, because the charge failed to allege one of two ingredients of the offence i.e. that the act was committed "in a public place" or "with intent to insult or offend any person".

Criminal Law - Topic 7283

Summary conviction proceedings - Informations - Defects - Curing of - The New Brunswick Provincial Court stated that an information which violated s. 510(3) of the Criminal Code of Canada was wholly bad, incapable of amendment and unaffected by a demand for or an offering of further and better particulars - See paragraph 48.

Criminal Law - Topic 7285

Summary conviction proceedings - Informations - Form and content - Sufficiency of charge - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 510(3) - Section 510(3) required an information to contain sufficient detail of the alleged offence to give the accused notice of the case he had to meet - An information charging an accused with committing an indecent act contrary to s. 169(a) did not stipulate that the act was committed "in a public place" - The New Brunswick Provincial Court dismissed the information on the ground that "in a public place" was an essential ingredient of the offence and therefore should have been included in the information.

Cases Noticed:

R. v. Rog (1985), 65 N.B.R.(2d) 356; 164 A.P.R. 356 (N.B.C.A.), not folld. [para. 10.].

R. v. Wis Development Corporation Ltd., [1984] 1 S.C.R. 485; 53 N.R. 134; 53 A.R. 58, folld. [para. 13].

R. v. Cote, [1978] 1 S.C.R. 8; 13 N.R. 271; 40 C.R.N.S. 308, refd to. [para. 31].

R. v. Stewart (1979), 7 C.R.(3d) 165 (B.C.C.A.), refd to. [para. 34].

R. v. Major (1975), 10 N.S.R.(2d) 348; 2 A.P.R. 348; 25 C.C.C.(2d) 62 (N.S.S.C.), refd to. [para. 36].

Brodie v. the King, [1936] S.C.R. 188, refd to. [para. 55].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 66].

R. v. Doyle, [1977] 1 S.C.R. 597; 9 N.R. 285, refd to. [para. 79].

R. v. Budovitch (1970), 1 N.B.R.(2d) 163; 4 C.C.C. 156, refd to. [para. 84].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 283(1)(a), sect. 294(a) [para. 16]; sect. 510, sect. 729(1) [para. 27]; sect. 732(1) [para. 44].

Counsel:

Glendon J. Abbott, for the Crown;

Richard Bell, for Barry Kenneth Clark.

This case was heard before Harper, P.C.J., of the New Brunswick Provincial Court, who delivered the following judgment on March 5, 1986.

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