R. v. Nolin, (1982) 17 Man.R.(2d) 379 (CA)

Judge:Freedman, C.J.M., Monnin and Huband, JJ.A.
Court:Court of Appeal (Manitoba)
Case Date:March 15, 1982
Jurisdiction:Manitoba
Citations:(1982), 17 Man.R.(2d) 379 (CA)
 
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R. v. Nolin (1982), 17 Man.R.(2d) 379 (CA)

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R. v. Nolin

(Suit No. 367/81)

Indexed As: R. v. Nolin

Manitoba Court of Appeal

Freedman, C.J.M., Monnin and Huband, JJ.A.

September 1, 1982.

Summary:

The accused was charged with possession of a narcotic for the purpose of trafficking. During the preliminary inquiry, the trial judge ruled that the accused's statements, which were crucial to the Crown's case, were inadmissible. At the end of the Crown's evidence, the accused re-elected with the result that the preliminary became the trial. The Crown applied for prohibition to prevent the judge from presiding at the trial.

The Manitoba Court of Queen's Bench, in a decision not reported in this series of reports, allowed the application. The accused appealed.

The Manitoba Court of Appeal dismissed the appeal. Huband, J.A., dissenting in paragraphs 3 to 31, would have allowed the appeal.

Courts - Topic 689

Judges - Disqualification - Bias - Arising out of participation in prior proceedings - During a preliminary, the judge ruled that the accused's statements, which were crucial to the Crown's case, were inadmissible - At the end of the Crown's case, the accused re-elected with the result that the preliminary became the trial - The Crown applied for prohibition to prevent the judge from presiding at the trial - The Manitoba Court of Appeal held that there was a reasonable apprehension of bias and affirmed a prohibition order preventing the judge from continuing with the trial - See paragraphs 1 and 2.

Cases Noticed:

R. v. Atkinson (1977), 32 C.C.C.(2d) 361; 36 C.R.N.S. 255; 22 N.R. 524 (Man. C.A.), [1978] 1 S.C.R. 1018; 22 N.R. 523 (S.C.C.), folld. [para. 2]; consd. [para. 26].

R. v. Atkinson, [1978] 1 S.C.R. 1018; 22 N.R. 523 (S.C.C.), (1977), 32 C.C.C.(2d) 361; 36 C.R.N.S. 255; 22 N.R. 524 (Man. C.A.), refd to. [paras. 2 and 29].

R. v. Cooper, [1968] 2 C.C.C. 104 (Ont. C.A.), affd. [1968] 4 C.C.C. 128 (S.C.C.), refd to. [para. 9].

Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 15].

Blanchette v. C.I.S. Ltd., [1973] S.C.R. 833, refd to. [para. 16].

Nord-Deutsche Versicherungs Gesellschaft et al. v. R. et al., [1968] 1 Ex. C.R. 443, consd. [para. 21].

Barthe v. R. (1964), 41 C.R. 47, refd to. [para. 22].

Re Downer and R. (1977), 35 C.C.C.(2d) 198, consd. [para. 23].

Authors and Works Noticed:

Shetreet, Judges on Trial, p. 312 [para. 1].

Counsel:

S. Pinx, for the appellant;

B.A. MacFarlane, for the Crown.

This appeal was heard on March 15, 1982, by FREEDMAN, C.J.M., MONNIN and HUBAND, JJ.A., of the Manitoba Court of Appeal. On September 1, 1982, the decision of the Court of Appeal was delivered and the following opinions were filed:

FREEDMAN, C.J.M. - See paragraphs 1 and 2;

HUBAND, J.A., dissenting - See paragraphs 3 to 31.

MONNIN, J.A., concurred with FREEDMAN, C.J.M.

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