R. v. Mallet (F.), (1999) 217 N.B.R.(2d) 36 (TD)

• Judge: Angers, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: April 19, 1999
• Jurisdiction: New Brunswick
• Citations: (1999), 217 N.B.R.(2d) 36 (TD)

R. v. Mallet (F.) (1999), 217 N.B.R.(2d) 36 (TD);

    217 R.N.-B.(2e) 36; 555 A.P.R. 36

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [1999] N.B.R.(2d) TBEd. MY.016

Her Majesty The Queen v. Fernand Mallet

(B/M/45/99)

Indexed As: R. v. Mallet (F.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Bathurst

Angers, J.

May 12, 1999.

Summary:

An accused pleaded not guilty to a charge of sexual touching of a minor. The trial judge found the accused guilty and ad­journed sentencing. Before sentencing, a motion for a stay of proceedings was made to the judge for nondisclosure of material facts. The judge ordered a stay of proceed­ings. The Crown applied for judicial review arguing that the judge could not stay the proceedings without first vacating the con­viction.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the ap­plication.

Administrative Law - Topic 5007

Judicial review - Certiorari - General principles - When available - Criminal matters - [See Courts - Topic 2186 ].

Courts - Topic 2013

Jurisdiction - General principles - Criminal cases - Stay of proceedings - [See Courts - Topic 2186 ].

Courts - Topic 2186

Jurisdiction - Loss or termination of juris­diction upon fulfilling function (functus officio) - Prosecutions or criminal trials - An accused pleaded not guilty to a charge of sexual touching of a minor - The trial judge found the accused guilty - Before imposing sentence, the judge granted a stay of proceedings for nondisclosure of ma­terial facts - The Crown applied for judi­cial review arguing that the judge could not stay the proceedings without first vacating the conviction - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, held that the judge could order a stay of proceedings as long as she was not functus officio - A judge sitting without a jury is not functus officio as long as he has not imposed sentence - In addition there was no verdict because a formal conviction includes a finding of guilt and a sentence - Finally, an application for review was not appropriate because there was a right to appeal - See paragraphs 1 to 11.

Criminal Law - Topic 2829

Jurisdiction - Provincial Court Judges - Motions and sentencing after guilt finding - [See Courts - Topic 2186 ].

Criminal Law - Topic 4421

Procedure - Verdicts - General - [See Courts - Topic 2186 ].

Criminal Law - Topic 4829

Appeals - Indictable offences - Right of appeal - From an order that stays proceed­ings on an indictment or quashes an in­dictment - [See Courts - Topic 2186 ].

Cases Noticed:

R. v. Lessard (1976), 30 C.C.C.(2d) 70 (Ont. C.A.), refd to. [para. 5].

R. v. Rog (1985), 63 N.B.R.(2d) 356; 164 A.P.R. 356 (C.A.), refd to. [para. 11].

Authors and Works Noticed:

Ewaschuk, E.G., Criminal Pleadings and Practice in Canada (2nd Ed.), para. 16:11010 [para. 6].

Counsel:

J. George Chiasson, for the applicant;

Jean-Guy Henry, for the respondent.

This application was heard on April 19, 1999 by Angers, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Bathurst, who delivered the following decision on May 12, 1999.