R. v. Squires, (1977) 11 Nfld. & P.E.I.R. 457 (NFCA)

• Judge: Furlong, C.J.N., Morgan and Gushue, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: January 26, 1977
• Jurisdiction: Newfoundland and Labrador
• Citations: (1977), 11 Nfld. & P.E.I.R. 457 (NFCA)

R. v. Squires (1977), 11 Nfld. & P.E.I.R. 457 (NFCA);

    22 A.P.R. 457

MLB headnote and full text

R. v. Squires

Indexed As: R. v. Squires

Newfoundland Supreme Court

Court of Appeal

Furlong, C.J.N., Morgan and Gushue, JJ.A.

January 26, 1977.

Summary:

This case arose out of charges against the accused of break and enter with intent to commit an indictable offence contrary to s. 306(1)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34, and 3 charges of assault causing bodily harm contrary to s. 245(2). After being thrown out of an apartment the accused returned with accomplices, broke into the apartment and viciously assaulted the occupants. The accused was charged under ss. 245(2) and 306(1)(a). The accused pleaded guilty and was sentenced to 3 years imprisonment for each of the 3 breaches of s. 245(2) to run consecutively and 10 years imprisonment for break and enter with intent to run concurrently with the other sentences. See 8 Nfld. & P.E.I.R. 103. The accused appealed from conviction and sentence.

The Newfoundland Court of Appeal dismissed the appeal from conviction but allowed the appeal from sentence in part. The Court of Appeal increased the sentence of the accused from 3 years to 5 years imprisonment on each count of assault causing bodily harm to run concurrently. The Court of Appeal reduced the sentence of the accused from 10 years to 2 years imprisonment for break and enter with intent to be served consecutive to the other sentences. See paragraphs 2 and 11.

Criminal Law - Topic 76

Res judicata - Multiple convictions for the same subject matter precluded - After being thrown out of an apartment, the accused returned with accomplices, broke into the apartment and viciously assaulted the occupants - The accused was charged with break and enter with intent to commit an indictable offence contrary to s. 306(1)(a) of the Criminal Code of Canada, R.S.C. 1970, c. C-34, and with three counts of assault causing bodily harm contrary to s. 245(2) - The Newfoundland Court of Appeal held that the two offences were separate and distinct and that the accused was properly convicted of both - See paragraphs 6 - 7.

Criminal Law - Topic 2847

Jurisdiction - Consent jurisdiction of Provincial Court judges - Election by accused - Record of election - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 484(4) - The accused elected trial by a magistrate without a jury - The magistrate recorded on the information "15 May 1975 - election - s. 484(2) - Magistrate. sans jury" - The Newfoundland Court of Appeal held that the Magistrate sufficiently endorsed the record of the election on the information for the purposes of s. 484(4) - See paragraph 5 - See also R. v. MacDonald (1974), 8 N.S.R.(2d) 589.

Criminal Law - Topic 5851

Sentence - Break and enter with intent - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 306(1)(a) - After being thrown out of an apartment the accused returned with accomplices, broke into the apartment and viciously assaulted the occupants - The Newfoundland Court of Appeal reduced the sentence of the accused from 10 years to 2 years imprisonment for break and enter with intent to be served consecutively to 3 concurrent sentences for assault causing bodily harm of 5 years imprisonment each - See paragraphs 2 and 11.

Criminal Law - Topic 5883

Sentence - Assault causing bodily harm - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 245(2) - Three counts - After being thrown out of an apartment the accused returned with accomplices, broke into the apartment and viciously assaulted the occupants - The Newfoundland Court of Appeal varied the sentence of the accused for assault causing bodily harm from 3 years to 5 years imprisonment on each count to run concurrently - See paragraphs 2 and 4.

Evidence - Topic 2505

Presumptions - Presumption of regularity - Judicial proceedings - The accused claimed on appeal that he had not been put to his election in the words of section 484(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34 - The transcript of evidence did not indicate that the election was made in the wording of s. 484(2) - The Magistrate endorsed on the information what the election had been - The Newfoundland Court of Appeal held that there was a presumption of regularity of procedure and that the onus was on the accused to show that a properly worded election was not put to the accused - The Court of Appeal held that the accused failed to discharge the onus - See paragraphs 3 - 4.

Cases Noticed:

Kienapple v. The Queen (1974), 1 N.R. 322; 26 C.R.N.S. 1, dist. [para. 6].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 245(2), sect. 306(1)(a) [para. 1]; sect. 484(2) [para. 4]; sect. 484(4) [para. 5].

Counsel:

John McGrath, for the respondent;

David Sparkes, for the appellant.

This case was heard on December 2, 1976, at St. John's Newfoundland, before FURLONG, C.J.N., MORGAN and GUSHUE, JJ.A., of the Newfoundland Supreme Court, Court of Appeal.

On January 26, 1977, GUSHUE, J.A., delivered the following judgment of the Court of Appeal: