R. v. Potter, (1976) 1 A.R. 415 (TD)

• Judge: Laycraft, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 10, 1976
• Citations: (1976), 1 A.R. 415 (TD)

R. v. Potter (1976), 1 A.R. 415 (TD)

MLB headnote and full text

R. v. Potter

Indexed As: R. v. Potter

Alberta Supreme Court

Trial Division

Judicial District of Calgary

Laycraft, J.

November 10, 1976.

Summary:

This case arose out of a charge of impaired driving and a charge of assaulting a police officer. On December 3, 1975, the accused pleaded not guilty to both charges and the case was set down for trial for January 27, 1976. On January 27, 1976, a Crown witness was not available and the Crown was granted an adjournment to March 8, 1976. On March 8, 1976, the Crown again requested an adjournment because of the unavailability of witnesses. The Crown's request for an adjournment was denied. The Crown did not call any evidence and the charges against the accused were dismissed. Later, new informations were sworn against the accused in the same terms as the informations which were dismissed. The accused pleaded autrefois acquit. The judge refused to accept the plea of autrefois acquit and before trial the accused applied to the Alberta Supreme Court for an order of prohibition to restrain the Provincial Court judge from proceeding with the new informations laid against the accused.

The Alberta Supreme Court dismissed the application for an order of prohibition. The Alberta Supreme Court stated that even if the trial judge improperly rejected the plea of autrefois acquit it was an error which was within the jurisdiction of the judge to make - see paragraph 20.

In addition, the Alberta Supreme Court stated that the laying of new informations by the Crown did not constitute an abuse of process - see paragraphs 7 to 15.

Administrative Law - Topic 6444

Prohibition - Grounds for granting order - Excess of jurisdiction - The accused pleaded not guilty to a charge of impaired driving - At the opening of trial the trial judge refused the Crown's request for an adjournment, the Crown did not call any evidence and the charge was dismissed - Later the Crown laid the same charge against the accused and the accused pleaded autrefois acquit - The judge refused to accept the plea of autre fois acquit and the accused applied to the Alberta Supreme Court for an order of prohibition to restrain the Provincial Court judge from proceeding with the trial of the accused - The Alberta Supreme Court, Trial Division, dismissed the application - The Alberta Supreme Court stated that the question of the validity of the plea of autrefois acquit did not involve any question relating to the jurisdiction of the judge - The Alberta Supreme Court stated that if the rejection of the plea was in error it was an error which was within the jurisdiction of the judge to make - See paragraph 20.

Criminal Law - Topic 253

Abuse of process - Oppressive or other conduct by the Crown constituting abuse of process - The accused pleaded not guilty to a charge of impaired driving - At the opening of the trial the trial judge refused the Crown's request for an adjournment, the Crown did not call any evidence and the charge was dismissed - Later the Crown laid the same charge against the accused - The Alberta Supreme Court, Trial Division, stated that such conduct by the Crown did not constitute an abuse of process - See paragraphs 7 to 15.

Cases Noticed:

R. v. Cooper, [1971] 4 W.W.R. 621, refd to. [para. 5].

R. v. Riddle, 1 A.R. 396, folld. [para. 6].

R. v. Canadian Pacific Company, 1 A.R. 177, folld. [para. 6].

R. v. Osborn, [1971] 1 C.C.C. 482, refd to. [para. 8].

R. v. Osborn, [1969] 4 C.C.C. 185, refd to. [para. 8].

R. v. Rourke (1975), 25 C.C.C.(2d) 555, refd to. [para. 8].

Director of Public Prosecutions v. Humphries, [1976] 2 W.L.R. 857; 2 All E.R. 497, refd to. [para. 9].

R. v. Kowerchuk, [1971] 4 W.W.R. 564; 15 C.R.N.S. 95; 3 C.C.C.(2d) 291, refd to. [para. 10].

Re Regina and Neish (1975), 24 C.C.C. (2d) 379, refd to. [para. 11].

R. v. Koski, [1972] 1 W.W.R. 398 (B.C.S.C.), refd to. [para. 13].

R. v. McAnish and Cook (1974), 15 C.C.C.(2d) 494, refd to. [para. 14].

R. v. Gilberg, [1975] 2 W.W.R. 171, folld. [para. 17].

R. v. Pearson (1957), 21 W.W.R. 337, folld. [para. 17].

R. v. Sequin (1921), 49 O.L.R. 28, folld. [para. 18].

Bunbury v. Fuller (1853), 9 Ex. 111, 156 E.R., folld. [para. 19].

Long Point Co. v. Anderson (1891), 18 O.A.R. 401, folld. [para. 20].

R. v. Commodore Hotel (Windsor) Ltd. (1955), 111 C.C.C. 145 (Ont. H.C.J.), folld. [para. 21].

Counsel:

D.R. Johnson, for the applicant;

Ms. D. Martinson, for the Crown.

Judgment was delivered by LAYCRAFT, J., at Calgary, Alberta, on November 10, 1976.