R. v. S.F.L. et al., (1986) 71 N.B.R.(2d) 225 (TD)

• Judge: Meldrum, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: March 27, 1986
• Jurisdiction: New Brunswick
• Citations: (1986), 71 N.B.R.(2d) 225 (TD)

R. v. S.F.L. (1986), 71 N.B.R.(2d) 225 (TD);

    71 R.N.-B.(2e) 225; 182 A.P.R. 225

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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R. v. S.F.L. et al.

Indexed As: R. v. S.F.L. et al.

Répertorié: R. v. S.F.L. et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Meldrum, J.

March 27, 1986.

Summary:

Résumé:

A Provincial Court judge "dismissed" or "quashed" a total of 27 informations against 13 young persons. The various reasons given were: (1) double jeopardy, (2) failure to allege in the information that the persons charged were young persons under the Young Offenders Act at the time of the alleged offences, (3) failure to initial and date supplementary pages attached to the informations (i.e., French versions) and (4) that provincial offences were not covered by the Young Offenders Act. The Crown applied for mandamus to compel the Provincial Court judge to proceed with the informations.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the application with respect to 12 of the 13 young persons. The 13th was dismissed because the reasons for "dismissing" the information were not available in that case. The court was highly critical of the conduct and statements made by the Provincial Court judge.

Administrative Law - Topic 3683

Judicial review - Mandamus - Courts and judicial officers - Judicial duties - Declension of jurisdiction - A Provincial Court judge "dismissed" or "quashed" informations against 13 young persons, but in fact he declined to hear the informations - The New Brunswick Court of Queen's Bench, Trial Division, held that mandamus was the proper remedy, not an appeal, because the charges were not adjudicated upon - See paragraphs 24 to 33.

Civil Rights - Topic 2947

Language - Criminal proceedings - Trial in either official language - The New Brunswick Court of Queen's Bench, Trial Division, held that an accused's right to be tried in the language of his choice did not mean that documents in criminal matters must be prepared and submitted in both official languages - See paragraphs 53 to 56.

Courts - Topic 5

Stare decisis - Authority and use of precedents - The New Brunswick Court of Queen's Bench, Trial Division, stated that a judge should respect a decision from an equivalent level so that citizens can rely on a uniform application of the law - The court also stated that a judge is bound by decisions of a higher court and that it is not open to him to question or demand proof of the correctness of that decision - The court stated that a decision from a higher authority should be followed without "editorial comment" in passing - See paragraphs 20 to 21.

Courts - Topic 592

Judges - Duties - Duty to conduct fair and impartial proceedings - The New Brunswick Court of Queen's Bench, Trial Division, was very critical of a Provincial Court judge who overstepped his bounds by "abdicating his role as impartial arbiter" and "taking on the role of defence counsel" - The court stated that "the duty of the court is to listen, to consider and impartially judge. The court can not know the facts. The court is not conversant with the deemed best interests of Crown or counsel. The court can not know of its own initiative what the case is" - See paragraphs 67 to 73.

Criminal Law - Topic 122

Double jeopardy - What constitutes jeopardy - Informations were laid against young persons before a judge of the New Brunswick Court of Queen's Bench, Family Division - The judge ruled that he had no jurisdiction - The informations were withdrawn and new informations were laid before a Provincial Court judge - The New Brunswick Court of Queen's Bench, Trial Division, held that double jeopardy did not apply, because there was no "charge before a court of competent jurisdiction" - The court stated that the Family Division's finding that it had no jurisdiction meant that the young persons were not in jeopardy at that stage - See paragraphs 35 to 42.

Criminal Law - Topic 4723

Procedure - Information - Amendment of - A Provincial Court judge refused to hear informations laid before him where the informations failed to allege that the persons charged were young persons under the Young Offenders Act at the time of the alleged offence - No form of information had yet been set out under the Act, so the Crown used the forms set out in Part XXV of the Criminal Code, but neglected to modify the forms - Defence counsel did not object to the forms - The New Brunswick Court of Queen's Bench, Trial Division, held that the Provincial Court judge "could have and should have allowed such amendments as counsel sought as being necessary" - See paragraphs 43 to 47.

Criminal Law - Topic 4730

Procedure - Informations - Form and content - Attached French version - The Crown laid an information in English and attached a French version - The French version was not initialled by the informant or the judge who took the information - The Provincial Court judge held that the informations were therefore defective, even though defence counsel did not object - The New Brunswick Court of Queen's Bench, Trial Division, stated that "I fail to see how the presence or absence of initials affects the in formation" - The court stated that it was mere surplusage - See paragraphs 48 to 57.

Criminal Law - Topic 8710

Young offenders - Form of information against young person - A Provincial Court judge refused to hear informations laid before him where the informations failed to allege that the persons charged were young persons un der the Young Offenders Act at the time of the alleged offence - No form of information had yet been set out under the Act, so the Crown used the forms set out in Part XXV of the Criminal Code, but neglected to modify the forms - Defence counsel did not object to the forms - The New Brunswick Court of Queen's Bench, Trial Division, held that the Provincial Court judge "could have and should have allowed such amendments as counsel sought as being necessary" - See paragraphs 43 to 47.

Cases Noticed:

R. v. Charters (1986), 71 N.B.R.(2d) 31; 182 A.P.R. 31, refd to. [para. 17].

R. v. Petersen (1982), 44 N.R. 92 (S.C.C.), refd to. [para. 37].

R. v. Y.D. (1986), 67 N.B.R.(2d) 269; 172 A.P.R. 269, refd to. [para. 38].

R. v. Kienapple, [1974] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 76].

Statutes Noticed:

Young Offenders Act, S.C. 1980-81-82, c. 110, sect. 66, sect. 67 [para. 43].

Canadian Charter of Rights and Freedoms, 1982, sect. 16, sect. 19 [para. 54].

Authors and Works Noticed:

Trameer's Criminal Code (5th Ed.), p. 1136 [para.36].

Counsel:

Scott Fowler, for S.F.L., T.J.B. and R.J.B.;

Terrence LeBlanc, for S.P., T.P.H. and L.J.N.;

Paul Scobie, for C.A.M. and R.C.M.;

Harold Doherty, for D.N.C. and M.G.M.;

Leonide Cyr, Q.C., for S.L.C.;

Scott Fowler, for G.C. and P.A.B.

These applications were heard on March 21 and 27, 1986, at Moncton, N.B., before Meldrum, J., of the New Brunswick Court of Queen's Bench, Trial Division, who delivered the following judgment orally on March 27, 1986: