R. v. Mercer, (1988) 89 A.R. 24 (CA)

• Judge: Lieberman, Kerans and Foisy, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 15, 1988
• Citations: (1988), 89 A.R. 24 (CA)

R. v. Mercer (1988), 89 A.R. 24 (CA)

MLB headnote and full text

R. (appellant) v. Brent Clarke Mercer (accused respondent)

(Appeal #19725)

Indexed As: R. v. Mercer

Alberta Court of Appeal

Lieberman, Kerans and Foisy, JJ.A.

August 15, 1988.

Summary:

The accused was acquitted on a charge of obstruction of justice after he refused to testify at a preliminary inquiry. He had already been imprisoned for eight days by the preliminary inquiry judge for refusing to testify under s. 472 of the Criminal Code. The Crown appealed.

The Alberta Court of Appeal dismissed the appeal and held that once the accused had been punished under s. 472, it was not open to proceed against him for obstruction.

Criminal Law - Topic 3593

Preliminary inquiry - Evidence - Witnesses - Refusal to testify - Punishment - The Criminal Code, s. 472, authorized a preliminary inquiry judge to imprison for eight days a witness who refused to testify - A preliminary inquiry judge committed a witness to eight days imprisonment for refusing to testify - When the preliminary inquiry resumed, the witness appeared, but was not asked if he would consent to testify on the assumption that he would refuse, if asked - He was charged with obstruction of justice under s. 127(2) - The Alberta Court of Appeal affirmed his acquittal and held that once s. 472 has been invoked to punish for refusal to testify, no further proceedings may be taken - However, if s. 472 is not invoked, a charge under s. 127(2)(obstruction) or s. 8 (contempt) may be laid - Hence, if the witness had refused to testify upon resumption of the preliminary inquiry, proceedings could have been taken against him under only one of ss. 8, 127(2) or 472.

Cases Noticed:

R. v. Lacroix, [1987] 1 S.C.R. 244; 74 N.R. 392; 6 Q.A.C. 160, reving. 15 C.C.C.(3d) 265 (Que. C.A.), consd. [para. 6].

R. v. McKenzie (1978), 9 A.R. 335; 41 C.C.C.(2d) 394, appld. [para. 9].

R. v. Bubley (1976), 1 A.R. 37; 32 C.C.C.(2d) 79 (Alta. C.A.), refd to. [para. 9].

R. v. Marsden (1978), 37 C.C.C.(2d) 107 (Que. S.C.), refd to. [para. 9].

R. v. Vermette, [1987] 1 S.C.R. 577; 74 N.R. 221; 77 A.R. 372; 32 C.C.C.(3d) 519, dist. [para. 12].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 8, sect. 127(2), sect. 472.

Counsel:

W. Lindsay MacDonald, for the appellant Crown;

J.D. Wise, for the respondent accused.

This case was heard before Lieberman, Kerans and Foisy, JJ.A., of the Alberta Court of Appeal.

On August 15, 1988, Lieberman, J.A., delivered the following judgment for the Court of Appeal.