R. v. Scragg, (1988) 73 Sask.R. 25 (QB)

• Judge: Hrabinsky, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 29, 1988
• Jurisdiction: Saskatchewan
• Citations: (1988), 73 Sask.R. 25 (QB)

R. v. Scragg (1988), 73 Sask.R. 25 (QB)

MLB headnote and full text

Her Majesty the Queen (respondent) v. Lloyd J. Scragg (applicant)

(No. 66 A.D. 1988)

Indexed As: R. v. Scragg

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Hrabinsky, J.

November 29, 1988.

Summary:

The accused was charged with sexual assault contrary to s. 246.1 of the Criminal Code and with administering a stupefying or overpowering liquid contrary to s. 230(b) of the Code. The accused elected to be tried by judge alone. Following a preliminary inquiry the accused was committed to stand trial on both charges. The clerk of the court endorsed on the record that the accused was committed to stand trial before a "judge and jury". The accused applied for certiorari to quash the committal order on the ground that because he had elected to be tried by judge alone, the Provincial Court judge acted without jurisdiction in committing him to stand trial by judge and jury.

The Saskatchewan Court of Queen's Bench dismissed the application because the Provincial Court judge made no jurisdictional error.

Criminal Law - Topic 3535

Preliminary inquiry - Jurisdiction - Excess of jurisdiction - An accused elected trial by judge alone - In committing the accused to stand trial, the Provincial Court judge made several references to a jury, but concluded the committal without referring to a judge and jury - The Saskatchewan Court of Queen's Bench held that the judge did not commit jurisdictional error, but referred to a jury merely in the context of applying the proper test for committal: "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty" - The court held that the fact that the clerk endorsed on the record that the accused was committed for trial before a "judge and jury" was a clerical error not affecting the validity of the accused's election.

Criminal Law - Topic 3716

Preliminary inquiry - Procedure - Committal order - Form and content - [See Criminal Law - Topic 3535 above].

Cases Noticed:

R. v. Dubois, [1986] 1 S.C.R. 366; 25 C.C.C.(3d) 221; 51 C.R.(3d) 193; 26 D.L.R.(4th) 481; [1986] 3 W.W.R. 577; 41 Man.R.(2d) 1; 66 N.R. 289, reving. 65 C.C.C.(2d) 513; 27 C.R.(3d) 173; [1982] 2 W.W.R. 662; 18 Man.R.(2d) 90, refd to. [para. 5].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 34 C.R.N.S. 207; 30 C.C.C.(2d) 424; 70 D.L.R.(3d) 136; 9 N.R. 215, refd to. [para. 5].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 475(1) [paras. 4, 6].

Counsel:

J.H.C. Harradence, Q.C., for the applicant;

J.A. Plemel, for the respondent.

This application was heard before Hrabinsky, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, whose decision was delivered on November 29, 1988.