R. v. Hamilton, (1991) 96 Sask.R. 278 (QB)

• Judge: Grotsky, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 27, 1991
• Jurisdiction: Saskatchewan
• Citations: (1991), 96 Sask.R. 278 (QB)

R. v. Hamilton (1991), 96 Sask.R. 278 (QB)

MLB headnote and full text

Her Majesty The Queen (appellant) v. Elan D. Hamilton (respondent)

(No. 534 A.D. 1991)

Indexed As: R. v. Hamilton

Saskatchewan Court of Queen's Bench

Judicial Centre of Kerrobert

Grotsky, J.

November 27, 1991.

Summary:

The Saskatchewan Provincial Court dis­missed an information charging the accused with operating a motor vehicle while having an excessive blood-alcohol content. The Crown appealed.

The Saskatchewan Court of Queen's Bench dismissed the appeal for lack of jurisdiction.

Criminal Law - Topic 7467

Summary conviction proceedings - Appeals - Procedural defects - Curing of - For a summary conviction appeal, (1) no certificate was filed with the notice of appeal, as required by Summary Convic­tion Appeal Rule 6; (2) no notice of appeal was attached to or marked as an exhibit to the affidavit of service and (3) no evidence was shown of the date on which the af­fidavit of service was filed - Considering that the accused/respondent did not object on appeal and thereby waived any ir­regularities, the Saskatchewan Court of Queen's Bench held that noncompliance with the proof of service provisions of Summary Conviction Appeal Rule 3 could be treated as a mere irregularity - See paragraphs 15 to 18.

Criminal Law - Topic 7477

Summary conviction proceedings - Appeals - Notice of appeal - Signing of - Authority - A Crown prosecutor prepared a notice of appeal from a dismissal in a summary conviction case on behalf of the (indicated) agent of the Attorney General - The prosecutor was not authorized by the Attorney General or the Attorney General's lawful deputy to prosecute the appeal - There was no evidence that the agent specifically authorized the prosecutor to launch the appeal - The Saskatchewan Court of Queen's Bench held that the prosecutor was without jurisdiction to launch the appeal - Accordingly, the court lacked jurisdiction - See paragraphs 20 to 39.

Cases Noticed:

R. v. McKay (1979), 5 Sask.R. 214; 9 C.R.(3d) 378 (C.A.), refd to. [para. 31].

R. v. Harrison, [1977] 1 S.C.R. 238; 8 N.R. 47, refd to. [para. 31].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 2 [para. 26]; sect. 813(b) [paras. 24, 37]; sect. 813(b)(i) [para. 3]; sect. 815(1) [paras. 4-5].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 24(2) [para. 27].

Summary Conviction Appeal Rules (Sask.), rule 3 [paras. 5, 15-16]; rule 6 [paras. 5, 11, 17]; rule 15 [para. 16].

Authors and Works Noticed:

Black's Law Dictionary (5th Ed.) [para. 28].

Osborn's Concise Law Dictionary (7th Ed.) [para. 28].

Yogis, Canadian Law Dictionary [para. 28].

Counsel:

B.W. McHolm, for the appellant;

C.L. Spencer, for the respondent.

This appeal was heard before Grotsky, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Kerrobert, whose decision was delivered on November 27, 1991.