R. v. Cuthill, (1976) 1 A.R. 214 (CA)

• Judge: McGillivray, C.J.A., McDermid, Prowse, Moir and Haddad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 29, 1976
• Jurisdiction: Alberta
• Citations: (1976), 1 A.R. 214 (CA)

R. v. Cuthill (1976), 1 A.R. 214 (CA)

MLB headnote and full text

R. v. Cuthill

Indexed As: R. v. Cuthill

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 impaired driving. The accused was convicted, fined $500.00 and prohibited from driving for a period of one year.

The accused appealed by way of trial de novo to the District Court. The District Court, without setting the appeal down for trial, quashed the conviction of the accused on the ground that the information was defaced and invalid.

On appeal by the Crown to the Alberta Court of Appeal the appeal was allowed, the decision of the District Court was set aside and the accused was ordered to appear before the District Court judge to have his appeal heard according to law. The Alberta Court of Appeal stated that the decision by the District Court judge, quashing the conviction, was invalid because on an appeal by way of trial de novo the District Court judge does have the power to review the original trial proceedings in the summary conviction court to determine whether the trial judge lost jurisdiction or acted without jurisdiction - see paragraphs 17 to 28. The Alberta Court of Appeal stated that generally the defacement of an information does not affect the jurisdiction or validity of summary conviction proceedings - see paragraphs 13 to 16 and 59.

The Alberta Court of Appeal stated that the quashing of the accused's conviction by the District Court judge was a "decision" pursuant to s. 771(1) of the Criminal Code and, accordingly, the Crown was entitled to appeal to the Alberta Court of Appeal pursuant to s. 771(1) - see paragraphs 4 to 12.

Moir and Haddad, JJ.A., dissenting, in the Alberta Court of Appeal, would have dismissed the appeal because the quashing of the conviction of the accused by the District Court judge did not constitute "a decision of a court in respect of an appeal under s. 755" as required by s. 771(1) of the Criminal Code - see paragraphs 30 to 60.

Criminal Law - Topic 7271

Summary conviction proceedings - In formations - Effect of defacing or marking on information - The Alberta Court of Appeal stated that the defacement of an information does not affect the jurisdiction or validity of summary conviction proceedings - See paragraphs 13 to 16 and 59.

Criminal Law - Topic 7417

Summary conviction proceedings - Appeal by way of trial de novo - Criminal Code, s. 755(1) - Powers of a judge on an appeal by way of trial de novo - The Alberta Court of Appeal stated that on an appeal by way of trial de novo the judge does not have the power to review the original trial proceedings in the summary conviction court to determine whether the trial judge lost jurisdiction or acted without jurisdiction - See paragraphs 17 to 28.

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 an appeal by way of trial de novo a District Court judge quashed a conviction because of an apparent improper endorsement on the information which was made by the trial judge - The Crown appealed to the Alberta Court of Appeal pursuant to s. 771(1) of the Criminal Code - The Alberta Court of Appeal held that in the circumstances the Crown had a right of appeal under s. 771(1) because the decision of the District Court judge disposed of the appeal on grounds which appear to him to be sufficient - See paragraphs 5 to 12.

Cases Noticed:

R. v. Greenwood (1948), 90 C.C.C. 244, refd to. [para. 3].

R. v. Granberg (1973), 11 C.C.C.(2d) 117; [1973] 4 W.W.R. 91, refd to. [paras. 3, 17, 34].

R. v. Canadian Pacific Limited, 1 A.R. 177, folld. [paras. 5, 53].

R. v. Dennis, [1960] S.C.R. 286, folld. [paras. 7, 24, 48].

R. v. Sheets (1971), 1 C.C.C.(2d) 508; [1971] S.C.R. 614, folld. [para. 11]; dist. [para. 52].

R. v. Bourgeois, 92 C.C.C. 229, folld. [para. 15].

Sanders v. The Queen, [1970] 2 C.C.C. 57, refd to. [para. 21].

R. v. Richard (1970), 12 C.R.N.S. 172, folld. [para. 23].

Dennis v. The Queen (1958), 121 C.C.C. 129, folld. [para. 25].

Cheyenne Realty Ltd. v. Thompson (1974), 1 N.R. 273; 42 D.L.R.(3d) 733, folld. [para. 36].

R. v. Bailey (1964), 49 W.W.R. 560, folld. [para. 44].

Zimmerman v. Farmer and Merchants Trust Company (1963-4), 45 W.W.R. 310, folld. [para. 53].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 755(1) [para. 42]; sect. 755(4) [para. 49]; sect. 771(1) [para. 4].

Counsel:

I.F. Kirkpatrick, for the respondent;

R.E. Davis, of the appellant.

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

PROWSE, J.A. - see paragraphs 1 to 29.

HADDAD, J.A. - dissenting, see paragraphs 30 to 60.

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

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