R. v. Kalyn, (1979) 4 Man.R.(2d) 171 (CoCt)

• Court: Provincial Court of Manitoba (Canada)
• Case Date: November 22, 1979
• Jurisdiction: Manitoba
• Citations: (1979), 4 Man.R.(2d) 171 (CoCt)

R. v. Kalyn (1979), 4 Man.R.(2d) 171 (CoCt)

MLB headnote and full text

R. v. Kalyn

Indexed As: R. v. Kalyn

Manitoba County Court

Jewers, C.C.J.

November 2, 1979.

Summary:

This headnote contains no summary.

Criminal Law - Topic 7416

Summary conviction proceedings - Appeal by way of trial de novo - When available - The appellant was convicted in the Manitoba Provincial Judges Court of imprudent driving under s. 91(3)(b) of the Highway Traffic Act, R.S.M. 1970, c. H-60 - There was no official court reporter at the trial - The appellant driver appealed the conviction and sentence, and also made application that the conviction and sentence be quashed or, in the alternative, for a trial de novo on the ground that no transcript of evidence was available - The Manitoba County Court, dismissed the appeal made pursuant to s. 748 of the Criminal Code of Canada, and denied the motion to quash the conviction and sentence - The court, however, granted the appellant's motion for trial de novo pursuant to s. 755(4) of the Criminal Code, having regard to the condition of the record and the interests of justice - The County Court stated that justice would obviously be defeated if the appellant were deprived of her right of appeal simply because there was no complete record of her case in the court below - See paragraphs 10 to 12.

Trials - Topic 2004

Conduct of trial - General - Record of evidence taken - The Winnipeg County Court stated that by virtue of the Summary Convictions Act, R.S.M. 1970, c. S-230, as amended by S.M. 1977 (2nd Session), c. 7, s. 1, it is no longer mandatory for the Summary Conviction Court to take the evidence of witnesses in accordance with s. 468(1) of the Criminal Code of Canada, and it cannot be argued that proceedings conducted in breach of that section are a nullity - The fact that a provincial court judge did not cause the evidence taken before him on a summary conviction offence under a provincial statute to be recorded, is no longer a ground for attacking his decision based on that evidence, either by way of appeal or by way of questioning his jurisdiction - See paragraphs 6 to 18.

Cases Noticed:

R. v. Gaba, [1978] 4 W.W.R. 119, refd to. [para. 3].

R. v. Blanchard (1965), 53 W.W.R.(N.S.) 687, refd to. [para. 5].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 468(1) [paras. 3 to 5]; sect. 736(3) [para. 4]; sect. 613(1) [paras. 10, 11]; sect. 455(4) [para. 12].

Summary Convictions Act, R.S.M. 1970, c. S-230, sect. 9(1.1) [para. 6].

Counsel:

W.R. DeGraves, Q.C. and P.C. Keenberg, for the (accused) appellant;

D. Rampersad, for the (respondent) respondent.

This case was heard before JEWERS, J.C.C., of the Manitoba County Court.

JEWERS, J.C.C., delivered the following judgment on November 22, 1979.