R. v. O'Connell, (1977) 14 Nfld. & P.E.I.R. 36 (PEICA)

• Judge: Darby, M.J. McQuaid and MacDonald, JJ.
• Case Date: October 31, 1977
• Jurisdiction: Prince Edward Island
• Citations: (1977), 14 Nfld. & P.E.I.R. 36 (PEICA)

R. v. O'Connell (1977), 14 Nfld. & P.E.I.R. 36 (PEICA);

    33 A.P.R. 36

MLB headnote and full text

R. v. O'Connell

Indexed As: R. v. O'Connell

Prince Edward Island Court of Appeal

Darby, M.J. McQuaid and MacDonald, JJ.

October 31, 1977.

Summary:

This case arose out of two charges against the accused. The accused pleaded not guilty to the charges, which the summary conviction court dismissed under s. 734 of the Criminal Code of Canada, R.S.C. 1970, c. C-34, because the Crown failed to appear. The Crown relaid the charges and the defendant relied upon the plea of autrefois acquit and also upon a certificate of dismissal obtained from the summary conviction court sometime after the trial. The summary conviction court held that the accused was entitled to rely upon the plea of autrefois acquit and that the certificate of dismissal was a bar to subsequent proceedings. The Crown appealed by way of stated case.

The Prince Edward Island Court of Appeal dismissed the appeal. The Court of Appeal held that the certificate of dismissal was invalid, because it had not been requested by the accused at trial and had not been certified by the summary conviction court. See paragraphs 1 to 23, 30. The Court of Appeal held that the plea of autrefois acquit was available to the accused notwithstanding that there was no hearing of the charges on the merits at trial. See paragraphs 28 to 43.

Criminal Law - Topic 4225

Procedure - Pleas - Plea of autrefois acquit - The defendant pleaded not guilty to two charges, which the summary conviction court then dismissed under s. 734 of the Criminal Code of Canada, because the Crown failed to appear - The charges were relaid and the defendant relied upon the plea of autrefois acquit - The Prince Edward Island Court of Appeal held that the plea was available to the accused, notwithstanding that there was no hearing of the charges on the merits at trial - See paragraphs 32 to 43 - The Court of Appeal held that the plea was applicable in summary conviction proceedings - See paragraphs 28 to 29, 31.

Criminal Law - Topic 4244

Certificate or order of dismissal - When available - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 743 - The Prince Edward Island Court of Appeal held that a certificate of dismissal was available only if requested by the defendant at trial - The Court of Appeal held that the certificate must be certified by the summary conviction court to be valid - See paragraphs 1 to 23, 30.

Words and Phrases

Certified - The Prince Edward Island Court of Appeal discussed the meaning of the word "certified" as found in s. 743(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - See paragraphs 18 to 21.

Cases Noticed:

R. v. Cooper (1971), 3 C.C.C.(2d) 261, consd. [para. 12].

R. v. Canadian Pacific Ltd., [1977] 1 W.W.R. 203; 1 A.R. 177; 32 C.C.C.(2d) 14, consd. [paras. 14 and 42].

R. v. Myrshall (1971), 3 N.B.R.(2d) 754; 4 C.C.C.(2d) 156, appld. [paras. 16 and 30].

R. v. Badiuck (1930), 53 C.C.C. 63, refd to. [para. 28].

Osborne v. R. (1975), 11 N.B.R.(2d) 48; 7 A.P.R. 48; 33 C.R.N.S. 211 (N.B.C.A.), refd to. [para. 28].

Rickard v. R., [1970] S.C.R. 1022; 1 C.C.C.(2d) 153, refd to. [para. 29].

A.-G. of Alberta v. Riddle (1976), 1 A.R. 396; 19 Crim. L.Q. 244, appld. [para. 29].

R. v. Kinch (1974), 20 C.C.C.(2d) 301; 7 Nfld. & P.E.I.R. 34, folld. [para. 29].

Cheyenne Realty Ltd. v. Thompson et al., [1975] 1 S.C.R. 87; 1 N.R. 273; 15 C.C.C. (2d) 49; 42 D.L.R.(3d) 733, appld. [para. 33].

Potter v. R., 1 A.R. 415; 37 C.R.N.S. 312, folld. [para. 34].

R. v. Hatherley, [1971] 3 O.R. 430; 4 C.C.C.(2d) 242 (O.C.A.), folld. [para. 35].

R. v. Blair and Karashowsky, [1975] 5 W.W.R. 723; 25 C.C.C.(2d) 47, consd. [para. 36].

Morin v. R. (1890), 18 S.C.R. 407, refd to. [para. 36].

R. v. Trainor (1945), 85 C.C.C. 36, consd. [para. 37].

Tunnicliffe v. Tedd (1848), 5 C.B. 553; 136 E.R. 995, consd. [para. 37].

Haynes v. Davis, [1915] 1 K.B. 332, consd. [para. 38].

R. v. Karpinski, [1957] S.C.R. 343; 117 C.C.C. 241, dist. [para. 39].

R. v. Chambers (1970), 2 N.S.R.(2d) 171; 13 C.R.N.S. 185 (N.S.C.A.), appld. [para. 40].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 734 [para. 9]; sect. 739 [para. 11]; sect. 743(1) [para. 7]; sect. 742(2) [para. 6].

Authors and Works Noticed:

Paley on Summary Convictions (8th Ed.), p. 168 [para. 40].

Counsel:

G. Gordon Tweedy, Q.C., for the appellant;

Paul J.D. Mullin, for the respondent.

This case was heard at Charlottetown, Prince Edward Island, before DARBY, M.J. McQUAID, and MacDONALD, JJ., of the Prince Edward Island Court of Appeal.

On October 31, 1977, the judgment of the Court of Appeal was delivered and the following opinions were filed:

M.J. McQUAID, J., concurring with MacDONALD, J. - see paragraphs 1 to 23;

MacDONALD, J., concurring with McQUAID, J. - see paragraphs 24 to 46.

DARBY, J., concurred with McQUAID and MacDONALD, JJ.