R. v. McAndrus (R.D.), (2010) 495 A.R. 153 (PC)

• Judge: Rosborough, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: February 22, 2010
• Citations: (2010), 495 A.R. 153 (PC);2010 ABPC 151

R. v. McAndrus (R.D.) (2010), 495 A.R. 153 (PC)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. MY.085

Her Majesty the Queen (Crown) v. Ray Dean McAndrus (defendant)

(090513417P1; 2010 ABPC 151)

Indexed As: R. v. McAndrus (R.D.)

Alberta Provincial Court

Rosborough, P.C.J.

April 15, 2010.

Summary:

McAndrus gave Kal Tire a cheque for $2,181.61 for tires and rims. The cheque was returned for non-sufficient funds. After Kal Tire was unsuccessful in contacting McAndrus, it contacted the RCMP. The police contacted McAndrus about the matter and he attended Kal Tire and paid the $2,181.61 and a $25 NSF fee. An RCMP officer swore an information charging McAndrus with obtaining property from Kal Tire by "a false pretence", contrary to s. 362(1)(a) of the Criminal Code. McAndrus submitted that the use of a criminal charge to collect a civil debt was an abuse of the court's process, and proceedings against him should be judicially stayed.

The Alberta Provincial Court held that this form of abuse of process was subsumed in s. 7 of the Charter and no longer remained an independent basis upon which to challenge the regularity of proceedings. If it was in error in that finding, it held that the plea of abuse of process in response to an allegation of civil debt collection by criminal prosecution should embrace the same procedural model adopted for s. 24 Charter applications, i.e. notice of the allegation had to be given to the court and prosecution. Given the finding that this form of abuse of process was subsumed in s. 7 of the Charter, and no notice having been given of a s. 24 Charter remedy application, the court was without jurisdiction to hear any such application. The application for a judicial stay of proceedings was dismissed for that reason. If the court was in error in that regard, it held that the evidence did not prove an abuse of process. However, the court found McAndrus not guilty of the charge where the prosecution had not proven beyond a reasonable doubt that the $2,181.61 cheque constituted a false pretence.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - McAndrus gave Kal Tire a cheque for $2,181.61 for tires and rims - The cheque was returned for non-sufficient funds - After Kal Tire was unsuccessful in contacting McAndrus, it contacted the RCMP - The police contacted McAndrus about the matter and he attended Kal Tire and paid the $2,181.61 and a $25 NSF fee - An RCMP officer swore an information charging McAndrus with obtaining property from Kal Tire "by a false pretence", contrary to s. 362(1)(a) of the Criminal Code - McAndrus submitted that the use of a criminal charge to collect a civil debt was an abuse of the court's process and the proceedings should be judicially stayed - The Alberta Provincial Court held that this form of abuse of process was subsumed in s. 7 of the Charter and no longer remained an independent basis upon which to challenge the regularity of proceedings - If it was in error in that finding, it held that the plea of abuse of process in response to an allegation of civil debt collection by criminal prosecution should embrace the same procedural model adopted for s. 24 Charter applications, i.e. notice of the allegation had to be given to the court and prosecution - Given the court's finding that this form of abuse of process was subsumed in s. 7 of the Charter, and no notice having been given of a s. 24 Charter remedy application, the court was without jurisdiction to hear any such application - The application for a judicial stay of proceedings was dismissed for that reason - If the court was in error in that regard, it held that the evidence did not prove an abuse of process - See paragraphs 15 to 34.

Civil Rights - Topic 8587.1

Canadian Charter of Rights and Freedoms - Practice - Notice - General - [See Civil Rights - Topic 3157.4 ].

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 251

General principles - Abuse of process - General principles - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 1906

Offences against property - False pretences - Obtaining anything (capable of being stolen) by false pretences - McAndrus gave Kal Tire a cheque for $2,181.61 for tires and rims - The cheque was returned for non-sufficient funds - After Kal Tire was unsuccessful in contacting McAndrus, it contacted the RCMP - The police contacted McAndrus about the matter and he attended Kal Tire and paid the $2,181.61 and a $25 NSF fee - An RCMP officer swore an information charging McAndrus with obtaining property from Kal Tire by "a false pretence", contrary to s. 362(1)(a) of the Criminal Code - The Alberta Provincial Court found McAndrus not guilty where the prosecution had not proven beyond a reasonable doubt that the $2,181.61 cheque constituted a false pretence - The court's reasons for finding a lack of proof were: (1) the mere fact that a cheque was NSF no longer mandated a presumption of a false pretence; (2) the account on which the cheque was drawn was both subsisting and active during the time frame in question and at one point in that time frame, it had sufficient funds to pay a $2,181.61 debt; (3) NSF cheques had been issued by McAndrus before the cheque in question and the account nevertheless remained open and active (with both debits and deposits); (4) McAndrus had previously purchased goods from Kal Tire and paid his account in full (and he paid it on this occasion as well); (5) McAndrus was absent from his premises for some period(s) of time after the indebtedness created by the $2,181.61 cheque arose and when contacted by police, he provided a plausible explanation for the delay in payment and he paid the debt - See paragraphs 35 to 37.

Cases Noticed:

R. v. Waugh (1985), 68 N.S.R.(2d) 247; 159 A.P.R. 247; 21 C.C.C.(3d) 80 (C.A.), refd to. [para. 13].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 15].

R. v. Rourke, [1978] 1 S.C.R. 1021; 16 N.R. 181, refd to. [para. 16].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, consd. [para. 18].

R. v. McCague, 2006 ONCJ 208, refd to. [para. 21].

R. v. Kobsar (T.G.) (2004), 355 A.R. 136; 2004 ABQB 235, refd to. [para. 21].

R. v. Janvier (1985), 41 Sask.R. 90 (Q.B.), refd to. [para. 21].

R. v. Finn (D.M.) (1996), 139 Nfld. & P.E.I.R. 97; 433 A.P.R. 97; 106 C.C.C.(3d) 43 (Nfld. C.A.), affd. [1997] 1 S.C.R. 10; 207 N.R. 244; 148 Nfld. & P.E.I.R. 89; 464 A.P.R. 89, refd to. [para. 22].

R. v. Kashuba (T.W.), [2005] Sask.R. Uned. 67; 2005 SKQB 184, refd to. [para. 24].

R. v. Fiddler, [1999] S.J. No. 107 (Prov. Ct.), refd to. [para. 24].

R. v. Meyer (R.), [1998] O.A.C. Uned. 307 (C.A.), refd to. [para. 24].

R. v. Bradley (H.H.) (1995), 133 Sask.R. 153 (Q.B.), refd to. [para. 24].

R. v. Bull (T.F.) (2010), 491 A.R. 335; 2010 ABPC 68, refd to. [para. 31].

R. v. Driscoll (1987), 79 A.R. 298 (C.A.), refd to. [para. 36].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 17].

Criminal Code, R.S.C. 1985, c. C-46, sect. 361(1), sect. 362 [para. 35].

Authors and Works Noticed:

Cohen, Stanley A., Observations on the Re-Emergence of the Doctrine of Abuse of Process (1981), 19 C.R.(3d) 310, generally [para. 16].

Counsel:

S. Jonkers, for the Crown;

K. Sockett, Q.C, for the defendant.

This matter was heard on January 28 and February 22, 2010, before Rosborough, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for judgment on April 15, 2010.