R. v. Myers (D.J.), (1990) 86 Nfld. & P.E.I.R. 140 (NFTD)

• Judge: Puddester, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: August 28, 1990
• Jurisdiction: Newfoundland and Labrador
• Citations: (1990), 86 Nfld. & P.E.I.R. 140 (NFTD)

R. v. Myers (D.J.) (1990), 86 Nfld. & P.E.I.R. 140 (NFTD);

    268 A.P.R. 140

MLB headnote and full text

Desmond Joseph Myers (applicant) v. Her Majesty The Queen and The Attorney General of Newfoundland (respondents)

(1990 St. J. No. 1737)

Indexed As: R. v. Myers (D.J.)

Newfoundland Supreme Court

Trial Division

Puddester, J.

September 20, 1990.

Summary:

The accused was charged with sexual assault. The victim failed to appear at the preliminary inquiry. She had changed her address and the police were unable to serve the subpoena. Nevertheless, there was sufficient evidence to support a committal on the included charge of common assault. The Deputy Attorney General then preferred a direct indictment on the original charge under s. 577(b) of the Code. The accused applied for a stay of proceedings on the direct indictment. The accused submitted, inter alia, that the direct indictment was invalid because he had not been discharged at the preliminary inquiry. Under s. 577(b), a discharge at the preliminary inquiry was a precondition for the preferring of the direct indictment. The Crown claimed that there was a discharge because there was no committal on the original charge.

The Newfoundland Supreme Court, Trial Division, allowed the application and set aside the direct indictment.

Civil Rights - Topic 8402

Canadian Charter of Rights and Freedoms - Criminal proceedings - Preferring indictments - The victim did not testify at the preliminary inquiry - Nevertheless, the accused was committed on an included offence - The Deputy Attorney General then preferred a direct indictment on the original charge under s. 577(b) of the Code - The accused submitted that the direct indictment contravened his rights under ss. 7 and 15 of the Charter - The Newfoundland Supreme Court, Trial Division, found that the Charter was not contravened - The court observed that the accused was shown the Crown's file and heard most of the witnesses - Also, it was the accused's objection which prevented the victim from appearing at the preliminary inquiry - See paragraphs 133 to 153.

Criminal Law - Topic 253

Abuse of process - Oppressive or other conduct constituting abuse of process - What constitutes - Direct indictments - The accused was charged with sexual assault - The Crown could not locate the victim - Therefore, she did not testify at the preliminary inquiry - The judge declined to commit on the sexual assault charge - However, the accused was committed on the included offence of common assault - The Deputy Attorney General then preferred a direct indictment on the original sexual assault charge - The accused applied for a stay of the direct indictment because it constituted an abuse of the court's process - The Newfoundland Supreme Court, Trial Division, observed that the preferring of the direct indictment was not an abuse of process - See paragraphs 110 to 133.

Criminal Law - Topic 4264

Procedure - Indictment - Preferring of indictments - Review of - The Newfoundland Supreme Court, Trial Division, considered the issue of whether a decision of the Deputy Attorney General, to prefer a direct indictment under s. 577(b) of the Code, was subject to judicial review - The court observed that a review of the merits of such a decision was not warranted - Nevertheless, the court also observed that the courts could intervene to readdress an abuse of process or a contravention of Charter rights - See paragraphs 104 to 109.

Criminal Law - Topic 4264.2

Procedure - Indictment - Preferring of indictment - On charge when committal only on included charge - The accused was charged with sexual assault - The preliminary inquiry judge found there was insufficient evidence to commit on the sexual assault charge - However, there was sufficient evidence to commit on the included charge of common assault - Nevertheless, the Deputy Attorney General then preferred a direct indictment on the original charge of sexual assault under s. 577(b) of the Code - The accused submitted that the direct indictment was invalid because the accused had not been discharged at the preliminary inquiry - The Newfoundland Supreme Court, Trial Division, held that the Deputy Attorney General's direct indictment was invalid - See paragraph 100.

Criminal Law - Topic 4273

Procedure - Indictment - Amendment - Circumstances prohibiting - [See Criminal Law - Topic 4264.2 ].

Statutes - Topic 8406

Penal statutes - General principles - Ambiguity resolved in favour of accused - The Newfoundland Supreme Court, Trial Division, considered the principles to be applied when interpreting a penal statute - The section is first examined to determine if it is ambiguous - In doing so, the section is to be construed on the ordinary meaning of the words but within the context of the statute as a whole - If the section is capable of two reasonable meanings, the meaning most favourable to the liberty of the accused is to be adopted - See paragraphs 64 to 67.

Words and Phrases

Discharged - The Newfoundland Supreme Court, Trial Division, discussed the meaning of the word "discharged" as found in s. 577(b) of the Criminal Code, R.S.C. 1985, c. C-46, was considered - See paragraphs 20 to 100.

Cases Noticed:

R. v. Miller (1981), 6 W.C.B. 269 (Alta. Q.B.), dist. [para. 37].

R. v. Miller, [1970] 3 C.C.C. 89 (Ont. H.C.), dist. [para. 41].

R. v. McKibbon, [1984] 1 S.C.R. 131; 52 N.R. 81; 3 O.A.C. 85; 10 C.C.C.(3d) 193, dist. [para. 45].

R. v. Brooks (1971), 6 C.C.C.(2d) 87 (Ont. C.C.), dist. [para. 60].

R. v. Chabot, [1980] S.C.R. 985; 34 N.R. 361; 18 C.R.(3d) 258; 117 D.L.R.(3d) 527; 55 C.C.C.(2d) 385, consd. [para. 72].

R. v. Ertel (1987), 58 C.R.(3d) 252 (Ont. C.A.), refd to. [para. 105].

R. v. Balderstone (1983), 23 Man.R.(2d) 125 (C.A.), refd to. [para. 105].

R. v. Moore et al. (1986), 39 Man.R.(2d) 315 (C.A.), refd to. [para. 105].

Saikaly and R., Re (1979), 48 C.C.C.(2d) 192 (Ont. C.A.), refd to. [para. 106].

R. v. Stolar (1983), 20 Man.R.(2d) 132; 4 C.C.C.(3d) 333 (C.A.), refd to. [para. 107].

R. v. Arviv (1985), 8 O.A.C. 92; 19 C.C.C.(3d) 395 (C.A.), consd. [para. 108].

R. v. Young (1984), 3 O.A.C. 254; 13 C.C.C.(3d) 1; 40 C.R.(3d) 289; 46 O.R.(2d) 520; 10 C.R.R. 307, consd. [para. 112].

R. v. Jewitt, [1985] 2 S.C.R. 128; [1985] 6 W.W.R. 127; 61 N.R. 159; 21 C.C.C.(3d) 7; 47 C.R.(3d) 193; 20 D.L.R.(4th) 651, consd. [para. 112].

R. v. Welsh et al. (No. 2) (1976), 29 C.C.C.(2d) 329 (Ont. H.C.), refd to. [para. 120].

R. v. Oshaweetok, [1984] N.W.T.R. 138 (S.C.), refd to. [para. 120].

R. v. Amato (1982), 69 C.C.C.(2d) 31, not folld. [para. 130].

R. v. Andrew et al. (1986), 6 B.C.L.R.(2d) 31 (S.C.), consd. [para. 144].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 135]; sect. 15 [para. 136].

Criminal Code, R.S.C. 1985, c. C-46, sect. 271(1)(a) [para. 2]; sect. 548(1) [para. 32]; sect. 566(1) [para. 23]; sect. 574(1), sect. 574(2), sect. 574(3) [para. 25]; sect. 576(1) [para. 22]; sect. 577 [para. 30].

Authors and Works Noticed:

Del Buono, Criminal Procedure in Canada (1982), p. 329 [para. 35].

Driedger, E.A., Construction of Statutes (1983), p. 207 [para. 64].

Counsel:

David G.L. Buffett, for the applicant;

Kathleen Healey, for the respondent.

This application was heard on August 28, 1990, by Puddester, J., of the Newfoundland Supreme Court, Trial Division, who filed the following decision on September 20, 1990.