R. v. Downey (S.A.), (1996) 157 N.S.R.(2d) 369 (ProvCt)

• Judge: Curran, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: December 13, 1996
• Jurisdiction: Nova Scotia
• Citations: (1996), 157 N.S.R.(2d) 369 (ProvCt)

R. v. Downey (S.A.) (1996), 157 N.S.R.(2d) 369 (ProvCt);

    462 A.P.R. 369

MLB headnote and full text

Her Majesty The Queen v. Scott Andrew Downey

Indexed As: R. v. Downey (S.A.)

Nova Scotia Provincial Court

Curran, P.C.J.

December 13, 1996.

Summary:

The accused was charged with breaching a condition of an undertaking not to have any contact with a particular woman.

The Nova Scotia Provincial Court found the accused not guilty of breaching the undertaking because the conditions in the undertaking were not validly imposed.

Criminal Law - Topic 6986

Recognizance and undertakings - Under­takings - Validity - The accused was arrested on weapons charges - At the police station, the arresting officer swore an information before a justice of the peace and the justice went over a draft undertaking - The undertaking, inter alia, prohibited contact with a particular woman - The accused signed the undertaking and was released - He was later charged with breaching the undertaking - The Nova Scotia Provincial Court held that the con­di­tions in the undertaking were not validly imposed because of noncompliance with s. 515(1) of the Criminal Code - Section 515(1) required the prosecutor to show cause why conditions should be imposed on an accused's release - The justice of the peace did not make a determination based on evidence and representations by both sides, or even on the consent or waiver of the parties - See paragraphs 1 to 11.

Evidence - Topic 5608

Witnesses, competency and compellability - Compellability - Judges and justices of the peace - The accused was arrested on weapons charges - At the police station, the arresting officer swore an information before a justice of the peace and the jus­tice went over a draft undertaking - The accused signed the undertaking and was released - He was later charged with breaching the undertaking - Defence counsel called the justice of the peace who issued the undertaking - The Nova Scotia Provincial Court held that in these circum­stances, the justice of the peace was not compellable nor competent to be a witness and should not have been permitted to testify - See paragraphs 14 to 17.

Cases Noticed:

R. v. Major (1990), 76 C.R.(3d) 104 (Ont. Dist. Ct.), refd to. [para. 5].

R. v. Slaney (1985), 67 N.S.R.(2d) 390; 155 A.P.R. 390 (C.A.), refd to. [para. 6].

R. v. Edmunds, [1981] 1 S.C.R. 233; 35 N.R. 611; 29 Nfld. & P.E.I.R. 345; 82 A.P.R. 345; 21 C.R.(3d) 168, refd to. [para. 13].

R. v. Dos Santos (1992), 96 Nfld. & P.E.I.R. 13; 305 A.P.R. 13 (Nfld. T.D.), refd to. [para. 15].

MacKeigan, J.A. et al. v. Royal Commis­sion (Marshall Inquiry) (1988), 85 N.S.R.(2d) 219; 216 A.P.R. 219 (T.D.), affd. (1988), 87 N.S.R.(2d) 443; 222 A.P.R. 443 (C.A.), refd to. [para. 15].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 2 [para. 12]; sect. 515(1) [para. 4].

Counsel:

Frank Hoskins, for the prosecution;

Roger Burrill, for the defence.

This case was heard at Dartmouth, Nova Scotia, before Curran, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision on December 13, 1996.