R. v. McFadyen, (1976) 1 A.R. 369 (CA)

• Judge: McGillivray, C.J.A., Prowse and Moir, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 29, 1976
• Citations: (1976), 1 A.R. 369 (CA)

R. v. McFadyen (1976), 1 A.R. 369 (CA)

MLB headnote and full text

R. v. McFadyen

Indexed As: R. v. McFadyen

Alberta Supreme Court

Appellate Division

McGillivray, C.J.A., Prowse and Moir, JJ.A.

October 29, 1976.

Summary:

This case arose out of a charge of speeding contrary to the Highway Traffic Act. At trial the accused admitted travelling 60 m.p.h. in 30 m.p.h. speed zone. The trial judge imposed a sentence of a fine of $40.00.

The Crown then appealed to the District Court and requested an increase in the fine to $150.00 pursuant to s. 196(5) of the Highway Traffic Act - see paragraph 3. Before the District Court the Crown did not call any evidence respecting the speed of the accused's vehicle. The District Court dismissed the appeal because of the lack of proof of the speed of the accused's vehicle.

The Crown then appealed to the Alberta Court of Appeal for an order of mandamus with certiorari in aid. The Alberta Court of Appeal dismissed the application because of the existence of an alternative remedy and because of the failure of the Crown to establish extraordinary circumstances.

Administrative Law - Topic 3555

Mandamus - Conditions precedent - Existence of extra-ordinary circumstances - The Crown appealed to the District Court a sentence of a fine of $40.00 following a conviction of the accused on a charge of speeding a motor vehicle - The Crown requested the District Court to increase the fine in accordance with the speed of the accused's vehicle and s. 196(5) of the Highway Traffic Act - The District Court dismissed the appeal because the Crown failed to prove on appeal the speed of the accused's vehicle - The Crown then applied to the Alberta Court of Appeal for an order of mandamus with certiorari in aid - The Alberta Court of Appeal dismissed the application because of the existence of an alternative remedy and because of the failure to establish extraordinary circumstances.

Motor Vehicles - Topic 2729

Regulation of vehicles and traffic - Rate of speed - Fines based on speed of the accused's vehicle - The accused admitted at trial that his speed was about 60 m.p.h. in a 30 m.p.h. speed zone - The trial judge fined the accused $40.00 - The Crown appealed the sentence to the District Court and requested an increase in the fine to $150.00 pursuant to s. 196(5) of the Highway Traffic Act - See paragraph 3 - The Crown did not call any evidence before the District Court respecting the speed of the accused - The District Court dismissed the appeal because of lack of proof of the speed of the accused's vehicle - The Alberta Court of Appeal affirmed the dismissal and stated that where a statute fixes a fine in relation to speed then the speed must be proved.

Cases Noticed:

R. v. Brown (No. 2) (1963), 40 C.R. 90, folld. [para. 10].

Chad Investments Ltd. v. Longson, Tammets & Denton Real Estate Ltd. et al., [1971] 5 W.W.R. 89, folld. [para. 14].

Statutes Noticed:

Highway Traffic Act, R.S.A. 1970, c. 169, sect. 196 [para. 3].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 755(2) [para. 8]; sect. 755(3) [para. 11].

Counsel:

I.F. Kirkpatrick, for the applicant;

J.E. Davison, for the respondent.

The judgment of the Alberta Court of Appeal was delivered by MOIR, J.A., at Calgary, Alberta on October 29, 1976.