R. v. Howell, (1977) 11 Nfld. & P.E.I.R. 246 (NFCA)

JudgeFurlong, C.J.N., Morgan and Gushue, JJ.A.
CourtNewfoundland Court of Appeal
Case DateFebruary 06, 1977
JurisdictionNewfoundland and Labrador
Citations(1977), 11 Nfld. & P.E.I.R. 246 (NFCA)

R. v. Howell (1977), 11 Nfld. & P.E.I.R. 246 (NFCA);

    22 A.P.R. 246

MLB headnote and full text

R. v. Howell

Indexed As: R. v. Howell

Newfoundland Supreme Court

Court of Appeal

Furlong, C.J.N., Morgan and Gushue, JJ.A.

February 6, 1977.

Summary:

This case arose out of a charge against the accused of possession of a narcotic for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1. The accused was tried and convicted before a Magistrate, who refused permission to the accused to call a witness, because the witness had remained in the courtroom during the trial. The accused appealed from conviction.

The Newfoundland Court of Appeal allowed the appeal, set aside the conviction and ordered a new trial. The Court of Appeal held that the accused had the right to call a witness under s. 577(3) of the Criminal Code of Canada, R.S.C. 1970, c. C-34. The Court of Appeal held that the error of the trial judge in refusing permission to the accused to call the witness was so fundamental that s. 613(1)(b)(iii) should not be invoked to dismiss the appeal on the ground that there was no miscarriage of justice. See paragraph 14.

Civil Rights - Topic 3127

Due process and fair hearings - Criminal proceedings - Right of accused to offer evidence - Criminal Code of Canada, s. 577(3) - The accused was not permitted to call a witness, because the witness had remained in the courtroom during the trial - The accused was convicted - The Newfoundland Court of Appeal held that the accused had the right to call any witnesses under s. 577(3) - The Court of Appeal stated that the fact that the witness had remained in the courtroom during the trial went not to the witness' competence, but to his credibility.

Criminal Law - Topic 5039

Appeals - Indictable offences - Dismissal of appeal if no miscarriage of justice - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 613(1)(b)(iii) - Effect of error by trial judge - The accused was not permitted to call a witness, because the witness had remained in the courtroom during the trial - The Newfoundland Court of Appeal held that the error of the trial judge in refusing permission to the accused to call the witness was so fundamental that s. 613(1)(b)(iii) should not be invoked to dismiss the appeal on the ground that there was no miscarriage of justice - See paragraph 14.

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 577(3) [para. 11]; sect. 613(1)(b)(iii) [para. 14].

Counsel:

Robert Matthews, for the appellant;

Claude Matthews, Q.C., for the respondent.

This case was heard on November 8, 1976, at St. John's, Newfoundland, before FURLONG, C.J.N., MORGAN and GUSHUE, JJ.A., of the Newfoundland Court of Appeal.

On February 6, 1977, the judgment of the Court of Appeal was delivered and the following opinions were filed:

FURLONG, C.J.N. - see paragraphs 1 - 6,

MORGAN, J.A. - see paragraphs 7 and 8,

GUSHUE, J.A. - see paragraphs 9 - 15.

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