R. v. S.W.E., (1998) 173 Sask.R. 79 (QB)

• Judge: Grotsky, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 23, 1998
• Jurisdiction: Saskatchewan
• Citations: (1998), 173 Sask.R. 79 (QB)

R. v. S.W.E. (1998), 173 Sask.R. 79 (QB)

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. DE.004

In The Matter Of the order of Provincial Court Judge E.C. Boychuk dated November 28, 1997, directing the committal for trial of Scott W. Ewen

In The Matter Of Scott W. Ewen's Application in the Nature of Certiorari for an order quashing the committal to stand trial

Scott W. Ewen (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

Grotsky, J.

October 23, 1998.

Summary:

Following a preliminary inquiry, the Crown indicted the accused on charges of aggravated assault and criminal negligence. The accused applied to quash the order committing him to stand trial on the ground that the recording device used at the prelimi­nary inquiry had malfunctioned and all of the evidence was not recorded for transcrip­tion. The accused argued that as a result, s. 540 of the Criminal Code was not complied with and he was denied his rights under ss. 7 and 11(d) of the Charter.

The Saskatchewan Court of Queen's Bench allowed the application and quashed the order of committal.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Criminal Law - Topic 3590 ].

Civil Rights - Topic 3150.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Preliminary inquiry - Transcript - Requirement for - [See Criminal Law - Topic 3590 ].

Criminal Law - Topic 3586

Preliminary inquiry - Evidence - Transcript - Requirement of - For trial - [See Crimi­nal Law - Topic 3590 ].

Criminal Law - Topic 3590

Preliminary inquiry - Evidence - Record of evidence - Following a preliminary inquiry, the Crown indicted the accused on charges of aggravated assault and criminal negligence - The accused applied to quash the order committing him to stand trial on the ground that the recording device used at the preliminary inquiry had malfunc­tioned and all of the evidence was not recorded for transcription - The accused argued that as a result, s. 540 of the Crimi­nal Code was not complied with and he was denied his rights under ss. 7 and 11(d) of the Charter - The Saskatchewan Court of Queen's Bench allowed the application and quashed the order of committal where the accused was prejudiced in his ability to make full answer and defence.

Cases Noticed:

R. v. Skogman, [1984] 2 S.C.R. 93; 54 N.R. 34; [1984] 5 W.W.R. 52; 13 C.C.C.(3d) 161, refd to. [para. 14].

R. v. Arviv (1985), 8 O.A.C. 92; 19 C.C.C.(3d) 395 (C.A.), leave to appeal refused, [1985] 1 S.C.R. v; 61 N.R. 237; 10 O.A.C. 158, refd to. [para. 15].

R. v. Boylan (1979), 3 Sask.R. 157; 46 C.C.C.(2d) 415 (C.A.), refd to. [para. 16].

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; 44 C.R.(4th) 1, refd to. [para. 18].

R. v. MacLeod (1994), 93 C.C.C.(3d) 339 (N.B.C.A.), refd to. [para. 19].

R. v. Reiter (1986), 44 Sask.R. 241 (Q.B.), refd to. [para. 20].

R. v. Gaudet (1981), 35 N.B.R.(2d) 512; 88 A.P.R. 512 (T.D.), refd to. [para. 21].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422, refd to. [para. 21].

Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.), refd to. [para. 21].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304; 115 D.L.R.(3d) 1, refd to. [para. 21].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 540(1) [para. 6].

Authors and Works Noticed:

Beaudoin, Gerald and Mendes, Errol, The Canadian Charter of Rights and Free­doms (3rd Ed. 1996), pp. 9-10 [para. 21].

Canada, Law Reform Commission Report, Discovery in Criminal Cases (1974), generally [para. 17].

Counsel:

M.W. Owens, for the applicant;

M.L. Gray, for the Crown.

This application was heard before Grotsky, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on October 23, 1998.