R. v. K., (1984) 61 N.S.R.(2d) 291 (CA)

• Judge: Jones, Morrison and Macdonald, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 09, 1984
• Jurisdiction: Nova Scotia
• Citations: (1984), 61 N.S.R.(2d) 291 (CA)

R. v. K. (1984), 61 N.S.R.(2d) 291 (CA);

    133 A.P.R. 291

MLB headnote and full text

R. v. K.

(S.C.A. 01191)

Indexed As: R. v. K.

Nova Scotia Supreme Court

Appeal Division

Jones, Morrison and Macdonald, JJ.A.

January 9, 1984.

Summary:

A juvenile committed to an industrial school pursuant to an order under s. 20(1)(i) of the Juvenile Delinquents Act escaped while being transported to the school by a deputy sheriff. The juvenile was charged under the Juvenile Delinquents Act with escaping lawful custody, contrary to s. 133(1)(a) of the Criminal Code of Canada. The Nova Scotia Family Court dismissed a motion to quash the information for not disclosing an offence known to law, and put the juvenile to his plea. The juvenile applied for certiorari and prohibition to quash the dismissal of the motion and to prevent any further proceedings respecting the information.

The Nova Scotia Supreme Court, Trial Division, in a judgment not reported in this series of reports, dismissed the application. The juvenile appealed.

The Nova Scotia Supreme Court, Appeal Division, dismissed the appeal.

Criminal Law - Topic 532

Offences against the administration of law and justice - Escapes - Lawful custody - What constitutes - The Nova Scotia Court of Appeal held that a juvenile could be charged with escaping lawful custody contrary to s. 133(1)(a) of the Criminal Code of Canada for escaping the custody of a sheriff transporting him to an industrial school pursuant to s. 20(1)(i) of the Juvenile Delinquents Act, because the juvenile was in "lawful custody" within the meaning of s. 133 (1)(a) - See paragraphs 20 to 33.

Criminal Law - Topic 8702

Juveniles - General principles - Purpose of juvenile delinquents legislation - The Nova Scotia Court of Appeal referred to the purpose of the Juvenile Delinquents Act in respect of the punishment and treatment of juveniles - See paragraphs 8 to 17.

Criminal Law - Topic 8807

Juveniles - Punishments - Committal of juvenile - The Nova Scotia Court of Appeal held that once an order to commit a juvenile to an industrial school was made under s. 20(1)(i) of the Juvenile Delinquents Act, the juvenile was in the custody of the industrial school to which he was committed and subject to provincial legislation respecting delinquency - See paragraphs 12 to 19.

Words and Phrases

Lawful custody - The Nova Scotia Court of Appeal discussed the meaning referred to the meaning of the phrase "lawful custody", as found in s. 133(1)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C- 34 - See paragraphs 20 to 33.

Cases Noticed:

R. v. L.W. (1980), 9 Man.R.(2d) 389; 53 C.C.C.(2d) 411 (Man. Q.B.), not folld. [para. 22].

R. v. Kominek (1978), 44 C.C.C.(2d) 472 (Alta. Juv. Ct.), not folld. [para. 23].

Hans v. The Queen, [1955] A.C. 378, refd to. [para. 23].

R. v. Gaffney, [1971] 1 N.S.W.L.R. 511, refd to. [para. 23].

R. v. G.P.G. (1979), 1 Man.R.(2d) 391; 48 C.C.C.(2d) 380, refd to. [para. 27].

R. v. C.M.E. (1975), 24 C.C.C.(2d) 575, refd to. [para. 27].

R. v. Mills, [1965] 3 C.C.C. 230 (B.C.S.C.), refd to. [para. 27].

Statutes Noticed:

Juvenile Delinquents Act, R.S.C. 1970, c. J-3, sect. 2(1) [paras. 8-9]; sect. 3 [para. 7]; sect. 21 [para. 13]; sect. 38 [para. 6].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 649(1) [para. 17].

Children's Services Act, S.N.S. 1976, c. 8, sect. 39 [para. 21].

Counsel:

D.A. Thompson, for the accused;

Kenneth W.F. Fiske, for the Crown.

This appeal was heard on October 17, 1983, before Jones, Morrison and Macdonald, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On January 9, 1984, Morrison, J.A., delivered the following judgment for the Court of Appeal.