R. v. Parsons, (1983) 41 Nfld. & P.E.I.R. 198 (NFPC)

• Judge: Kennedy, J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: January 01, 1983
• Jurisdiction: Newfoundland and Labrador
• Citations: (1983), 41 Nfld. & P.E.I.R. 198 (NFPC)

R. v. Parsons (1983), 41 Nfld. & P.E.I.R. 198 (NFPC);

    119 A.P.R. 198

MLB headnote and full text

R. v. Parsons

Indexed As: R. v. Parsons

Newfoundland Provincial Court

at Gander

Kennedy, J.

March, 1983.

Summary:

A theatre manager was charged with presenting obscene entertainment contrary to s. 163(1) of the Criminal Code, a hybrid offence. The accused appeared for election and plea. An R.C.M.P. officer represented the Crown, stating that the Crown elected to proceed by indictment. The accused moved to dismiss the charge for want of prosecution, submitting that the officer had no authority to make the Crown election.

The Newfoundland Provincial Court held that the election was invalid, but refused to dismiss the charge for want of prosecution.

Criminal Law - Topic 25

Prosecution of crime - Persons who may conduct prosecutions - An R.C.M.P. officer appeared as "agent" for the Crown on a hybrid offence and elected to proceed by indictment - The accused submitted that the officer had no authority to make the election on behalf of the Crown - The Newfoundland Provincial Court held that the election was invalid because an R.C.M.P. officer was not a "prosecutor" under s. 2 of the Criminal Code - The court stated that the only time an "agent" could prosecute was under the summary proceedings provisions of Part 24 of the Code - See paragraphs 37 to 43.

Criminal Law - Topic 3904

Indictable offences - General principles - Choice of procedures - Election by Crown - The Newfoundland Provincial Court stated that hybrid offences deemed to be indictable offences under s. 27(1) of the Interpretation Act, remain so until the Crown expressly elects to proceed by way of summary conviction or is deemed to have so elected - See paragraphs 12 to 14.

Criminal Law - Topic 4126

Indictable offences - Information - Dismissal - Non-appearance by Crown - An R.C.M.P. officer appeared as "agent" for the Crown on a hybrid offence - He elected to proceed by way of indictment - The Newfoundland Provincial Court held the election to be invalid, but refused to dismiss the charge for want of prosecution, because although the officer was not a "prosecutor" under s. 2 of the Criminal Code, no prejudice occurred, where the purpose of the appearance was solely for the Crown's election and the setting of the date of the trial or preliminary hearing - See paragraphs 52 and 53.

Words and Phrases

Where the Attorney General does not intervene - The Newfoundland Provincial Court referred to the meaning of the phrase "where the Attorney General does not intervene" as found in s. 2 of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - See paragraph 47.

Cases Noticed:

R. v. Edmunds, [1981] 1 S.C.R. 233; 35 N.R. 611 (S.C.C.), folld. [para. 4].

R. v. Smythe (1971), 3 C.C.C.(2d) 366 (S.C.C.), folld. [paras. 7, 33-34).

Dallman v. The King (1942), 77 C.C.C. 289 (S.C.C.), refd to. [para. 12].

R. v. Reed (1975), 23 C.C.C.(2d) 312 (B.C.S.C.T.D.), refd to. [para. 12].

R. v. Toor (1973), 11 C.C.C.(2d) 312 (B.C.S.C.T.D.), refd to. [paras. 12, 35].

Re Abarca and The Queen (1980), 54 C.C.C.(2d) 410 (Ont. C.A.), refd to. [para. 12].

Lapointe v. Lacroix (1981), 22 C.R.(3d) 311 (Que. C.A.), refd to. [paras. 12, 16].

R. v. Clark (1977), 35 C.C.C.(2d) 319 (Ont. C.A.), refd to. [para. 12].

R. v. Gallager (1981), 62 C.C.C.(2d) 3 (B.C.C.C.), refd to. [paras. 12, 17 to 21].

R. v. Marcotullio (1978), 39 C.C.C.(2d) 478 (Ont. C.A.), refd to. [paras. 23, 31].

R. v. Robert (1973), 13 C.C.C.(2d) 43 (Ont. C.A.), refd to. [paras. 23, 27].

R. v. Couture (1978), 40 C.C.C.(2d) 451 (B.C.C.C.), refd to. [para. 23].

R. v. Bouchard (1976), 10 Nfld. & P.E.I.R. 409; 17 A.P.R. 409 (Nfld. C.A.), affirming (1976), 10 Nfld. & P.E.I.R. 131; 17 A.P.R. 131 (Nfld. Dist. Ct.), refd to. [para. 23].

R. v. Dosangh (1927), 35 C.C.C.(2d) 309 (B.C.C.A.), refd to. [paras. 23, 27].

LaFleur v. M.N.R. (1966), 49 C.R. 333, refd to. [para. 38].

R. v. Dalton (1976), 11 Nfld. & P.E.I.R. 287; 22 A.P.R. 287, folld. [para. 48].

R. v. Bee (1975), 28 C.C.C.(2d) 60, refd to. [para. 24].

Criminal Code of Canada, R.S.C. 1970, c. C-34, ss. 2 [para. 40]; 163(1) [para. 9]; 165 [para. 10].

Interpretation Act, R.S.C. 1970, c. I-23, s. 27(1) [para. 11].

Canadian Bill of Rights, R.S.C. 1970, App. III, s. 132(2) [para. 33].

Authors and Works Noticed:

MacDougall, The Crown Election, 5 C.R.(3d) 315 [para. 25].

Blackstone's Commentaries, vol. 1, p. 268 [para. 44].

Halsbury's Laws of England (3rd Ed.), vol. 10, p. 272 [para. 45].

Counsel:

Cst. A. Doody, appearing for the Crown;

R. LeBlanc, for the defence.

This case was heard at Gander, Newfoundland, before Kennedy, J., of the Newfoundland Provincial Court, who delivered the following judgment in March, 1983: