R. v. Korponey, (1982) 44 N.R. 103 (SCC)

• Judge: Laskin, C.J.C., Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 26, 1982
• Jurisdiction: Canada (Federal)
• Citations: (1982), 44 N.R. 103 (SCC);[1982] SCJ No 111 (QL);26 CR (3d) 343;[1982] 1 SCR 41;132 DLR (3d) 354;44 NR 103;65 CCC (2d) 65;1982 CanLII 12 (SCC);[1982] CarswellQue 7;[1982] ACS no 111

R. v. Korponey (1982), 44 N.R. 103 (SCC)

MLB headnote and full text

R. v. Korponay

Indexed As: R. v. Korponey

(also known as R. v. Korponay)

Supreme Court of Canada

Laskin, C.J.C., Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer, JJ.

January 26, 1982.

Summary:

The accused was charged and convicted of possession of heroin for the purpose of trafficking. The accused appealed to the Quebec Court of Appeal.

The Quebec Court of Appeal dismissed the appeal. The accused appealed to the Supreme Court of Canada.

The Supreme Court of Canada allowed the appeal and ordered a new trial on the ground that the trial judge failed to follow the special procedure in s. 8 of the Narcotic Control Act.

Criminal Law - Topic 4210

Procedure - Waiver - The Supreme Court of Canada stated that a party may waive a procedural requirement enacted for his benefit - However, a judge may require compliance with a procedural requirement notwithstanding a desire to waive the requirement (see paragraph 13).

Criminal Law - Topic 4210

Procedure - Waiver - The Supreme Court of Canada stated that a waiver to be valid is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and the effect the waiver will have on those rights in the process (see paragraph 16).

Criminal Law - Topic 2857

Jurisdiction - Consent jurisdiction, elections and reelections - Waiver of procedural requirements - An accused re-elected to be tried by a judge alone - The re-election procedure did not comply with s. 492 of the Criminal Code of Canada - The Supreme Court of Canada held that the reelection was valid because the accused clearly and unequivocally waived the procedural requirements of s. 492 (see paragraphs 12 to 26).

Criminal Law - Topic 5039

Appeals - Dismissal of appeal if error resulted in no miscarriage of justice - Effect of error by trial judge - The Supreme Court of Canada referred to a type of error to which the curative provisions of s. 613(1)(b)(iii) of the Criminal Code will not apply (see paragraphs 34 to 39).

Barristers and Solicitors - Topic 1168

Authority, extent of - In criminal matters - The Supreme Court of Canada referred to the extent or scope of authority of a lawyer acting for a client in criminal matters (see paragraph 25).

Narcotic Control - Topic 704

Offences - Charge of trafficking in heroin - Special procedure in s. 8 of the Narcotic Control Act - The trial court failed to follow the special procedure in s. 8 of the Narcotic Control Act - The Supreme Court of Canada ordered a new trial because of such non-compliance (see paragraphs 30 and 49).

Narcotic Control - Topic 724

Offences - Trafficking - Waiver of procedural requirement - The Supreme Court of Canada referred to circumstances which did not constitute a waiver by an accused of the special procedural requirements of s. 8 of the Narcotic Control Act (see paragraphs 42 to 49).

Cases Noticed:

R. v. Park (1981), 37 N.R. 501; 59 C.C.C.(2d) 385, refd to. [para. 13].

R. v. Adgey, [1975] 2 S.C.R. 426, refd to. [para. 16].

R. v. Brosseau, [1969] S.C.R. 181, refd to. [para. 16].

R. v. Matheson (1979), 1 Man.R.(2d) 111; 13 C.R.(3d) 62, refd to. [para. 25].

R. v. McDonald (1958), 120 C.C.C. 209, refd to. [para. 32].

Cloutier v. The Queen, [1979] 2 S.C.R. 709; 28 N.R. 1, refd to. [para. 32].

R. v. Sharpe (1961), 131 C.C.C. 75, refd to. [para. 33].

R. v. Sylvain (1974), 17 C.C.C.(2d) 323, refd to. [para. 33].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 492 [para. 9]; sect. 613(1)(b)(iii) [para. 32].

Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 8 [para. 29].

Authors and Works Noticed:

Beliveau, Bellemare & Lussier, Traite de Procedure penale, Tome 1, page 302 [para. 23].

Counsel:

Paul Skolnick and Ivan Lerner, for the appellant;

Jacques Letellier, for the respondent.

This appeal was heard by LASKIN, C.J.C., MARTLAND, RITCHIE, DICKSON, BEETZ, ESTEY, McINTYRE, CHOUINARD and LAMER, JJ., of the Supreme Court of Canada at Ottawa, Ontario on October 14, 1981.

The judgment of the Supreme Court of Canada was delivered by LAMER, J., on January 26, 1982. Note that the English language judgment of LAMER, J., was received by Maritime Law Book Ltd. on January 29, 1982. To date the French language version has not been received. Accordingly, we have elected to publish the English language version without the French language version.