R. v. S.W.E., (1999) 182 Sask.R. 150 (QB)

• Judge: Laing, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 30, 1999
• Jurisdiction: Saskatchewan
• Citations: (1999), 182 Sask.R. 150 (QB)

R. v. S.W.E. (1999), 182 Sask.R. 150 (QB)

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. MY.016

S.W.E. (applicant) v. Her Majesty The Queen (respondent)

(1997 Q.B.J. No. 48)

Indexed As: R. v. S.W.E.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Laing, J.

March 30, 1999.

Summary:

Following a preliminary inquiry, the accused was committed to stand trial on charges of aggravated assault and criminal negligence. The committal was quashed on the basis that there were too many inaudibles in the preliminary inquiry transcript (see 173 Sask.R. 79). The Attorney General preferred an indictment pursuant to s. 577 of the Criminal Code charging the accused with aggravated assault and criminal negligence. The accused applied for a stay of proceed­ings on the preferred indictment on the grounds that the indictment was res judicata and an abuse of process and infringed his s. 7 Charter right by depriving him of his ability to make full answer and defence.

The Saskatchewan Court of Queen's Bench dismissed the application for a stay of pro­ceedings.

Criminal Law - Topic 253

Abuse of process - What constitutes - [See first Criminal Law - Topic 4262 ].

Criminal Law - Topic 4262

Procedure - Indictment - Preferring of indictments - Following a preliminary inquiry, the accused was committed to stand trial on charges of aggravated assault and criminal negligence - A court judg­ment quashed the committal on the basis that there were too many inaudibles in the preliminary inquiry transcript - The Attor­ney General preferred an indictment pur­su­ant to s. 577 of the Criminal Code charg­ing the accused with aggravated assault and criminal negligence - The accused applied for a stay of proceedings on the preferred indictment on the ground that it was an abuse of the court's process - The Saskatchewan Court of Queen's Bench held there was no abuse of process - See paragraphs 9 to 12.

Criminal Law - Topic 4262

Procedure - Indictment - Preferring of indictments - Following a preliminary inquiry, the accused was committed to stand trial on charges of aggravated assault and criminal negligence - A court judg­ment quashed the committal on the basis that there were too many inaudibles in the preliminary inquiry transcript - The Attor­ney General preferred an indictment pur­su­ant to s. 577 of the Criminal Code charg­ing the accused with aggravated assault and criminal negligence - The accused applied for a stay of proceedings on the preferred indictment on the ground that it was res judicata - The Saskatchewan Court of Queen's Bench held that the earlier judgment did not create an issue estoppel with respect to the preferred indictment - The factual underpinning for the judgment (an inadequate transcript) was not an issue that was relevant when the indictment was preferred - See para­graph 8.

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - [See second Crimi­nal Law - Topic 4262 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See second Criminal Law - Topic 4262 ].

Cases Noticed:

R. v. Boylan (1979), 3 Sask.R. 157; 46 C.C.C.(2d) 415 (C.A.), refd to. [para. 3].

R. v. Charlie (C.C.) (1998), 109 B.C.A.C. 106; 177 W.A.C. 106 (C.A.), refd to. [para. 6].

R. v. Arviv (1985), 8 O.A.C. 92; 19 C.C.C.(3d) 395 (C.A.), refd to. [para. 7].

R. v. Sterling (R.), Sterling (L.) and Ster­ling (T.) (1993), 113 Sask.R. 81; 52 W.A.C. 81; 84 C.C.C.(3d) 65 (C.A.), refd to. [para. 7].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269; 89 C.C.C.(3d) 1, refd to. [para. 10].

R. v. MacLeod (D.I.) (1994), 152 N.B.R.(2d) 344; 390 A.P.R. 344; 93 C.C.C.(3d) 339 (C.A.), refd to. [para. 11].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81; 116 C.C.C.(3d) 97, refd to. [para. 11].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, refd to. [para. 12].

Counsel:

M.W. Owens, for the applicant;

M.L. Gray, for the Crown.

This application was heard before Laing, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following fiat on March 30, 1999.