R. v. Pottle, (1978) 16 Nfld. & P.E.I.R. 372 (NFCA)

• Judge: MORGAN, J.A., concurred with GUSHUE, J.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: September 27, 1978
• Jurisdiction: Newfoundland and Labrador
• Citations: (1978), 16 Nfld. & P.E.I.R. 372 (NFCA)

R. v. Pottle (1978), 16 Nfld. & P.E.I.R. 372 (NFCA);

    42 A.P.R. 372

MLB headnote and full text

R. v. Pottle

Indexed As: R. v. Pottle

Newfoundland Supreme Court

Court of Appeal

Furlong, C.J.N., Morgan and Gushue, JJ.A

September 27, 1978.

Summary:

This case arose out of a charge against the accused of indecently assaulting an 8 year old boy. At the trial of the accused the boy and his 11 year old sister gave unsworn testimony of the assault. The boy's 14 year old brother gave sworn testimony about an indecent proposition which the accused made to him a short time after the assault of the 8 year old boy. Steele, C.J.D.C., of the Newfoundland District Court, in a judgment reported at paragraphs 34 to 149, below held that the testimony of the 14 year old boy was admissible as similar fact evidence and corroborated the unsworn testimony of the 8 year old boy and his sister. Steele, C.J.D.C., convicted the accused. The accused appealed on the question of the admissibility of the testimony of the 14 year old brother.

The Newfoundland Court of Appeal dismissed the appeal and affirmed the conviction of the accused. The Court of Appeal held that the testimony of the 14 year old brother was admissible as similar fact evidence and corroborated the unsworn testimony of the 8 year old boy and his sister.

Criminal Law - Topic 2807

Jurisdiction - Waiver of objection to jurisdiction - After receiving an information, a justice of the peace issued a summons to the accused without holding the required hearing under s. 455.3(1) of the Criminal Code - The accused appeared on the return of the summons - The Newfoundland Court of Appeal affirmed a decision of the District Court that, even if jurisdiction was lost over the accused by the failure to follow the procedure of s. 455.3(1), jurisdiction was regained over the accused, when he appeared to the summons - See paragraphs 3 to 6, 15 to 19, 34 to 74.

Criminal Law - Topic 2809

Jurisdiction - Distinction between jurisdiction over offence and jurisdiction over accused - After receiving an information, a justice of the peace issued a summons to the accused without holding the required hearing under s. 455.3(1) of the Criminal Code - The accused appeared on the return of the summons - The Newfoundland Court of Appeal affirmed a decision of the District Court that, even if jurisdiction over the accused was lost by the failure to follow the procedure of s. 455.3(1), jurisdiction over the offence was not lost - See paragraphs 3 to 6, 15 to 19 and 34 to 74.

Criminal Law - Topic 3273

Compelling appearance of accused - Summons - Requirement of prior hearing before issuing summons - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 455.3(1) - After receiving an information, a justice of the peace issued a summons to the accused without holding the required hearing under s. 455.3(1) of the Criminal Code - The Newfoundland Court of Appeal affirmed a decision of the District Court that the failure to follow the procedure of s. 455.3(1) did not result in a loss of jurisdiction over the accused, because the procedure of s. 455.3(1), while mandatory, was procedural only and did not go to jurisdiction - See paragraphs 3 to 6, 15 to 19, 34 to 74.

Criminal Law - Topic 4726

Procedure - Informations - Laying of information - Duty of judge to accept information - The Newfoundland Court of Appeal affirmed a judgment of the District Court that a justice has a duty to receive an information and is acting ministerially, not judicially, in doing so - See paragraphs 17 and 45.

Criminal Law - Topic 5212

Evidence - Relevancy - Similar acts - The accused indecently assaulted an 8 year old boy in the boy's bedroom - A short time later the accused asked the boy's 14 year old brother to commit fellatio on him - The accused was charged with indecently assaulting the 8 year old boy - The Newfoundland Court of Appeal affirmed the admission by the District Court of the testimony of the 14 year old brother as similar fact evidence - The District Court fully discussed the law pertaining to the definition, admissibility and purpose of similar fact evidence - See paragraphs 7 to 11, 20 to 28, 80 to 132.

Criminal Law - Topic 5463

Evidence - Unsworn evidence of children - Corroboration - Canada Evidence Act, R.S.C. 1970, c. E-10, s. 16 - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 586 - The accused indecently assaulted an 8 year old boy in the boy's bedroom - A short time later the accused asked the boy's 14 year old brother to commit fellatio on him - The accused was charged with indecently assaulting the 8 year old boy - The 8 year old boy and his 11 year old sister gave unsworn testimony of the assault - The 14 year old brother gave sworn testimony about the accused's later proposition to him - The Newfoundland Court of Appeal affirmed the judgment of the District Court that the sworn testimony of the 14 year old boy corroborated the unsworn testimony of the 8 year old boy and his sister - See paragraphs 11, 29 to 33, 133 to 148.

Cases Noticed:

Boardman v. Director of Public Prosecutions, 60 Cr. App. R. 164 (H.L.), appld. [paras. 8, 23].

D.D.P. v. Kilbourne, [1973] 1 All E.R. 440, appld. [paras. 10, 32, 126].

R. v. Doyle (1976), 9 N.R. 285; 10 Nfld. & P.E.I.R. 45; [1977] 1 S.C.R. 597, dist. [paras. 17, 49].

R. v. Hughes (1879), 4 Q.B.D. 614, appld. [para. 18].

Makin v. Attorney General for New South Wales, [1894] A.C. 57, appld. [para. 24].

R. v. Simms (1946), 31 Cr. App. Rep. 158, appld. [paras. 26, 114].

R. v. Boulet (1977), 15 N.R. 541; 34 C.C.C.(2d) 397, folld. [paras. 27, 106].

R. v. LeBlanc (1975), 8 N.R. 107; 29 C.C.C.(2d) 97, folld. [paras. 27, 107].

R. v. Baskerville (1916), 12 Cr. App. Rep. 81, appld. [paras. 31, 140].

R. v. Light, [1969] 1 C.C.C. 46, dist. [para. 50].

Re Trenholm, [1940] S.C.R. 301; 73 C.C.C. 129, dist. [para. 51].

Re Groves (1971), 18 C.R.N.S. 136, folld. [para. 53].

R. v. Born (1971), 6 C.C.C.(2d) 70, folld. [para. 54].

Ex parte Peters (1972), 10 C.C.C.(2d) 221, affd. [1973] 4 W.W.R. 110, dist. [para. 55].

Re Kuhn and The Queen (1974), 19 C.C.C.(2d) 556, folld. [para. 56].

R. v. Mack, [1976] 1 W.W.R. 657, appld. [para. 60].

R. v. Iaci, 44 C.C.C. 275, folld. [paras. 64, 73].

Re Rex v. Isbell (1928), 51 C.C.C. 362, folld. [para. 67].

Re Steg and Codd, [1967] 1 C.C.C. 79, folld. [para. 69].

Ex Parte Leclerc, 7 C.C.C.(2d) 346, cons'd. [para. 72].

R. v. Bovero (1925), 44 C.C.C. 275, refd to. [para. 73].

Re Regina and Groves, [1972] 2 W.W.R. 399; 5 C.C.C.(2d) 90, refd to. [para. 73].

R. v. Bain (1969), 1 N.S.R. 1965-69 36; [1970] 2 C.C.C. 49, appld. [para. 94].

R. v. Cline, 24 Cr. R. 58, appld. [para. 112].

Harris v. D.P.P., 36 Cr. App. R. 39, appld. [para. 114].

R. v. Flack (1968), 53 Cr. App. R. 166, appld. [para. 123].

R. v. Horwood (1969), 53 Cr. App. R. 619, cons'd. [para. 125].

R. v. King (Dennis Arthur) (1967), 51 Cr. App. R. 46, cons'd. [para. 125].

R. v. Muise (No. 1) (1974), 11 N.S.R.(2d) 104; 5 A.P.R. 104, appld. [para. 141].

Thompson v. D.D.P. (1918), 13 Cr. App. R. 61, appld. [para. 145].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1970, c. E-10, sect. 16(1) [para. 30, 76]; sect. 16(2) [paras. 30, 134].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 24 [para. 98]; sect. 156 [paras. 1, 13]; sect. 157 [para. 98]; sect. 455 [para. 44]; sect. 455.3(1) [paras. 4, 15, 40].

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), vol. 11, pp. 208 [para. 88]; 210 [para. 113].

McWilliams, Canadian Criminal Evidence (1974), pp. 182 [para. 90]; 186 [para. 102]; 205 [para. 120]; 440 [para. 138].

Salhany, Canadian Criminal Procedure (2nd Ed.), pp. 38 [para. 45]; 39 [para. 48].

Counsel:

Edward Shortall, for the Crown;

David Hurley, for the accused.

This case was heard on April 17, 1978, at St. John's, New-foundland before FURLONG, C.J.N., MORGAN and GUSHUE, JJ.A., of the Newfoundland Supreme Court, Court of Appeal.

On September 27, 1978, the judgment of the Court of Appeal was delivered and the following opinions were filed:

FURLONG, C.J.N. - see paragraphs 1 to 12;

GUSHUE, J.A. - see paragraphs 13 to 33.

MORGAN, J.A., concurred with GUSHUE, J.A.