R. v. Gibeau, (1977) 3 A.R. 404 (TD)

• Judge: Hope, J.
• Case Date: April 04, 1977
• Citations: (1977), 3 A.R. 404 (TD)

R. v. Gibeau (1977), 3 A.R. 404 (TD)

MLB headnote and full text

R. v. Gibeau

Indexed As: R. v. Gibeau

Alberta Supreme Court

Trial Division

Judicial District of Edmonton

Hope, J.

April 4, 1977.

Summary:

This case arose out of a charge of break and enter contrary to the Criminal Code. After a preliminary hearing the accused was discharged. The Crown immediately laid a second information which was identical to the first information. The Provincial Court judge granted an adjournment for election and plea before embarking on an adjudication of the second information. During the adjournment the accused applied to the Alberta Supreme Court for an order of prohibition on the grounds of the abuse of process.

The Alberta Supreme Court, Trial Division, dismissed the application because of the failure of the accused to apply to the Provincial Court judge for an order of dismissal - see paragraph 14. The Alberta Supreme Court, Trial Division, stated that all courts have inherent power to prevent the abuse of its process by staying or dismissing a proceeding. The Alberta Supreme Court, Trial Division, stated that the laying of the second information by the Crown in such circumstances constituted an abuse of process of the court - See paragraphs 13 and 16.

Administrative Law - Topic 6466

Prohibition - Conditions precedent - Assumption of excess of jurisdiction - The accused was charged with break and enter and after a preliminary hearing he was discharged - The Crown immediately laid a second information which was identical to the first information - A Provincial Court judge granted an adjournment for election and plea before embarking on an adjudication of the second information - The accused applied to the Alberta Supreme Court for an order of prohibition on the grounds of abuse of process - The Alberta Supreme Court, Trial Division, dismissed the application by the accused because of the failure of the accused to apply to the Provincial Court judge for an order of dismissal - See paragraph 14.

Criminal Law - Topic 253

Abuse of process - Oppressive conduct by the Crown constituting abuse of process - The accused was charged with break and enter and after a preliminary hearing the accused was discharged - The Crown immediately laid a second information which was identical to the first information - The Alberta Supreme Court, Trial Division, stated that such circumstances constitute an abuse of process by the Crown - See paragraphs 13 and 16.

Cases Noticed:

R. v. Potter (1977), 1 A.R. 415, folld. [para. 7].

Director of Public Prosecutions v. Humphries, [1976] 2 W.L.R. 857; 2 All E.R. 497, refd to. [para. 8].

Re Sheehan v. The Queen (1973), 14 C.C.C.(2d) 23, folld. [para. 9].

R. v. Osborn, [1969] 4 C.C.C. 185 (Ont. C.A.), folld. [para. 14].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 505(4) [para. 9].

Authors and Works Noticed:

Martin's Annual Criminal Code (1976), p. 367 [para. 12].

Counsel:

K. Sockett, for Gibeau;

M. Ferries, for the Crown.

The judgment of the Alberta Supreme Court, Trial Division was delivered by HOPE, J., at Edmonton, Alberta on April 4, 1977.