R. v. Depagie, (1976) 1 A.R. 602 (CA)

• Judge: McDermid, Clement and Moir, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 31, 1976
• Citations: (1976), 1 A.R. 602 (CA)

R. v. Depagie (1976), 1 A.R. 602 (CA)

MLB headnote and full text

R. v. Depagie

Indexed As: R. v. Depagie

Alberta Supreme Court

Appellate Division

McDermid, Clement and Moir, JJ.A.

August 31, 1976.

Summary:

This case arose out of two charges against the accused under the Criminal Code of Canada, R.S.C. 1970, c. C-34. At the preliminary hearing the provincial judge refused to allow certain questions to be answered which were asked by counsel for the accused on cross-examination. The accused applied for an order of mandamus to compel the provincial judge to allow the questions to be answered. A judge of the Supreme Court in chambers allowed the application. The Crown appealed.

The Appellate Division allowed the appeal and set aside the order of mandamus. The Appellate Division held that mandamus did not lie in the circumstances. The Appellate Division held that the refusal of the provincial judge to allow the questions to be answered did not so restrict cross-examination that the magistrate lost jurisdiction under s. 468(1) of the Criminal Code of Canada, R.S.C. 1970, c. C-34. The Appellate Division held that undue delay in the process of justice would result from permitting mandamus during preliminary hearings - see paragraphs 1 to 13.

Moir, J.A., dissenting, would have dismissed the appeal. Moir, J.A., was of the opinion that the provincial judge acted in direct contradiction of s. 468(1) in restricting cross-examination and thereby was without jurisdiction. Moir, J.A., stated that no other remedy than mandamus was available - see paragraphs 14 to 25.

See also R. v. C.P. Ltd., 1 A.R. 177 and R. v. Bernhard, 1 A.R. 266.

Administrative Law - Topic 3683

Mandamus - Mandamus to courts and judicial officers - Judicial duties - Declension of jurisdiction - What constitutes - The provincial judge at a preliminary hearing refused to allow certain questions put by counsel for the accused on cross-examination of Crown witnesses - The accused applied for an order of mandamus to compel the provincial judge to allow the questions to be answered - The Alberta Court of Appeal dismissed the application and held that mandamus did not lie in the circumstances - The Appellate Division held that the refusal of the provincial judge to allow the questions did not so restrict cross-examination that the judge lost jurisdiction under s. 468(1) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - The Appellate Division held that undue delay in the process of justice would result from permitting mandamus during preliminary hearings - See paragraphs 1 to 13.

Cases Noticed:

Patterson v. The Queen (1971), 2 C.C.C.(2d) 227, appld. [para. 6].

R. v. Hubbard et al., [1976] 3 W.W.R. 152, refd to. [para. 9].

Lemon v. Elliott (1964), 46 W.W.R. (N.S.) 613, affd. (1965), 51 W.W.R. (N.S.) 128, refd to. [para. 12].

R. v. Norgren (1975), 31 Cr. R. (N.S.) 247, refd to. [para. 12].

Roulette v. The Queen, [1972] 4 W.W.R. 508, refd to. [para. 12].

Frankel v. The Queen (1969), 68 W.W.R. (N.S.) 201, appld. [para. 13].

R. v. Churchman and Durham (1955), 20 C.R. 137, refd to. [para. 20].

R. v. Solloway, [1930] 1 W.W.R. 486, refd to. [para. 21].

R. v. Mills, [1930] 1 W.W.R. 486, refd to. [para. 21].

Doyle v. The Queen (1976), 9 N.R. 285; 10 Nfld. & P.E.I.R. 45, refd to. [para. 22].

R. v. Botting, [1966] 3 C.C.C. 373, refd to. [para. 23].

Re Schumiatcher (1961), 131 C.C.C. 112, refd to. [para. 23].

Justices of Roscommon (1894), 2 I.R. 158, refd to. [para. 23].

R. v. Guay (1973), 23 C.R.N.S. 116, refd to. [para. 23].

R. v. Pickett (1975), 31 C.R.N.S. 239, refd to. [para. 23].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 468(1) [para. 5].

Counsel:

David W. Kilgour, for the appellant;

R.L. Berger, for the respondent.

This case was heard before McDERMID, CLEMENT and MOIR, JJ.A., of the Alberta Supreme Court, Appellate Division.

On August 31, 1976, the judgment of the Appellate Division was delivered and the following opinions were filed:

McDERMID, J.A. - see paragraphs 1 to 13.

MOIR, J.A. [dissenting] - see paragraphs 14 to 25.

CLEMENT, J.A., concurred with McDERMID, J.A.