R. v. Nolan, (1990) 91 Nfld. & P.E.I.R. 149 (NFPC)

• Judge: Handrigan, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: December 20, 1990
• Jurisdiction: Newfoundland and Labrador
• Citations: (1990), 91 Nfld. & P.E.I.R. 149 (NFPC)

R. v. Nolan (1990), 91 Nfld. & P.E.I.R. 149 (NFPC);

    286 A.P.R. 149

MLB headnote and full text

Her Majesty The Queen v. Vincent Joseph Nolan

(1990 Nos. 68 and 70)

Indexed As: R. v. Nolan

Newfoundland Provincial Court

Judicial Centre of Grand Bank

Handrigan, P.C.J.

December 20, 1990.

Summary:

The Crown alleged that Nolan was driving while impaired and failed to stop at the scene of an accident. Subsequently, Nolan was charged under ss. 252(1)(a) and 253(b) of the Criminal Code. The Crown later applied to have one of the informations amended to include both charges so that the matter could be disposed of at one trial. The s. 253(b) charge was added to the s. 252(1)(a) information. During the trial of the matter, it was discovered that the informa­tion was incomplete because a Justice of the Peace did not witness the informant's signa­ture. Nolan submitted that the court lacked jurisdiction to proceed because the informa­tion was a nullity that could not be cured.

The Newfoundland Provincial Court held that the court lacked jurisdiction to pro­ceed.

Criminal Law - Topic 7255

Summary conviction proceedings - Informations - Requirements for laying information - Signatures - The accused was charged with an offence contrary to s. 252(1)(a) of the Code - The information's jurat was incomplete because the Justice of the Peace failed to witness the informant's signature - The accused submitted that the information was a nullity because of noncompliance with s. 789 of the Code - The Crown claimed that the defect should not matter because the Justice of the Peace signed the reverse side of the information - The Crown also submitted that it could introduce testimony to prove that the Jus­tice of the Peace witnessed the informant's signature - The Newfoundland Provincial Court held that the information was a nullity that could not be cured by evidence regarding the administration of the oath - See paragraphs 22 to 28.

Criminal Law - Topic 7257

Summary conviction proceedings - Informations - Irregularities - Jurat in­complete - Lack of signature - [See Criminal Law - Topic 7255 ].

Criminal Law - Topic 7263

Summary conviction proceedings - Informations - Nullities - General - [See Criminal Law - Topic 7255 ].

Criminal Law - Topic 7283

Summary conviction proceedings - Informations - Defects - Curing of - Section 789(1)(a) of the Code stated that an information should be in writing and under oath - A Justice of the Peace failed to sign an information indicating that he witnessed the informant's signature - The accused submitted that the information was a nullity that could not be cured - The Crown claimed that it could introduce evidence to prove that the Justice of the Peace witnessed the informant's oath - The Newfoundland Provincial Court held that the information was a nullity because the defect could not be cured - See paragraphs 26 to 28.

Trials - Topic 1092

Summary convictions - Informations - Errors in jurat - Curing of - [See Crimi­nal Law - Topic 7283 ].

Trials - Topic 1092

Summary convictions - Informations - Errors in jurat - Curing of - [See Crimi­nal Law - Topic 7255 ].

Trials - Topic 1093

Summary convictions - Informations - Dismissal or quashing of - [See Criminal Law - Topic 7255 ].

Cases Noticed:

Re Regina and Village of Bobcaygeon (1974), 17 C.C.C.(2d) 236, appld. [para. 19].

R. v. King (1990), 97 N.S.R.(2d) 262; 258 A.P.R. 262 (N.S.C.C.), consd. [para. 20].

R. v. Welsford, [1968] 1 C.C.C. 1 (Ont. C.A.), refd to. [para. 20].

R. v. Deal (1978), 24 N.S.R.(2d) 594; 35 A.P.R. 594; 38 C.C.C.(2d) 425, dist. [para. 22].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 788(1) [para. 17]; sect. 789(1)(a) [para. 18].

Counsel:

Terry D. White, for the Crown;

Shawn Colbourne, for Nolan.

This matter was heard by Handrigan, P.C.J., of the Newfoundland Provincial Court, in Marystown, Newfoundland, and the following decision was filed on December 20, 1990.