R. v. Scott and Thomas (Malcolm G.) Ltd., (1986) 68 N.B.R.(2d) 420 (PC)

• Judge: Harper, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: January 23, 1986
• Jurisdiction: New Brunswick
• Citations: (1986), 68 N.B.R.(2d) 420 (PC)

R. v. Scott (1986), 68 N.B.R.(2d) 420 (PC);

    68 R.N.-B.(2e) 420; 175 A.P.R. 420

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R. v. Scott and Malcolm G. Thomas Ltd.

Indexed As: R. v. Scott and Thomas (Malcolm G.) Ltd.

Répertorié: R. v. Scott and Thomas (Malcolm G.) Ltd.

New Brunswick Provincial Court

Harper, P.C.J.

January 23, 1986.

Summary:

Résumé:

An accused and his corporation were jointly charged with two counts of fraud, contrary to s. 338(1)(a) of the Criminal Code of Canada. The issue in this case concerned whether the president of the accused corporation was compellable as a witness for the Crown.

The New Brunswick Provincial Court held that the president was not compellable as a Crown witness.

Evidence - Topic 5586

Witnesses - Competency and compellability - Compellability - Officer, director or agent of company - The New Brunswick Provincial Court held that a person who was the directing mind and will of a "one-man" corporate accused was a competent but not a compellable witness in criminal proceedings against the corporation, in cases where mens rea was involved - The court held that to compel him to testify would not only breach the common law as it stood pre-Charter, but would deny the person the Charter right not to be compelled to testify against himself - Further, the court held that to admit his evidence into the record would bring the administration of justice into disrepute under s. 24(2) of the Charter.

Cases Noticed:

R. v. N.M. Paterson & Sons Ltd., [1980] 2 S.C.R. 679; 34 N.R. 597; 117 D.L.R.(3d) 517, dist. [para. 7].

Curr v. R., [1972] S.C.R. 889, ref'd to. [para. 15].

R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; 21 N.R. 295; 40 C.C.C.(2d) 353, ref'd to. [para. 20].

Tesco Supermarkets Ltd. v. Nattrass, [1972] A.C. 153 (H.L.), ref'd to. [para. 27].

R. v. N.M. Paterson & Sons Ltd. (1978), 44 C.C.C.(2d) 242 (Man. C.A.), ref'd to. [para. 30].

Canadian Dredge and Dock Company Limited et al. v. R., 45 C.R.(3d) 289 (S.C.C.), not appld. [para. 36].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(c) [paras. 16, 24, 38]; sect. 24(2) [paras. 24, 38].

Canada Evidence Act, R.S.C. 1970, c. E-10, sect. 5 [para. 17].

Authors and Works Noticed:

McWiliams, Canadian Criminal Evidence (2nd Ed.), pp. 941-945 [para. 28]; 944 [para. 29].

Counsel:

Keith McCormick, for the Crown;

Gary Miller, for the accused, Scott;

John Beaton, for the corporate accused.

This matter was heard before Harper, P.C.J., of the New Brunswick Provincial Court, whose decision was delivered on January 23, 1986.