R. v. Tapp (E.), (1999) 176 Nfld. & P.E.I.R. 215 (NFCA)

• Judge: Wells, C.J.N., Mahoney and Marshall, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: May 18, 1999
• Jurisdiction: Newfoundland and Labrador
• Citations: (1999), 176 Nfld. & P.E.I.R. 215 (NFCA)

R. v. Tapp (E.) (1999), 176 Nfld. & P.E.I.R. 215 (NFCA);

    540 A.P.R. 215

MLB headnote and full text

Temp. Cite: [1999] Nfld. & P.E.I.R. TBEd. JL.007

Elijah Tapp (appellant) v. Her Majesty the Queen (respondent)

(98/35)

Indexed As: R. v. Tapp (E.)

Newfoundland Supreme Court

Court of Appeal

Wells, C.J.N., Mahoney and Marshall, JJ.A.

June 8, 1999.

Summary:

An accused was convicted of serving alcohol to a person under the age of 19 years contrary to s. 76(1) of the Liquor Control Act and was sentenced to a $250 fine and two days' imprisonment. The accused appealed the conviction and sentence.

The Newfoundland Supreme Court, Trial Division, in a decision not reported in this series of reports, dismissed the appeal. The accused applied for leave to appeal, and, if granted, appealed from the decision.

The Newfoundland Court of Appeal denied leave to appeal the sentence, granted leave to appeal the conviction and dismissed the appeal.

Criminal Law - Topic 4591

Procedure - Costs - On appeal - Against the Crown - An unrepresented accused was convicted of a summary conviction offence, sentenced to a fine and two days' imprisonment and placed into immediate custody without being afforded an oppor­tunity to contact counsel or obtain bail - Upon release he filed an appeal against conviction and sentence - Six days prior to the appeal hearing, he learned that the Crown had changed its position on the appeal - The summary conviction appeal court wrongly denied him leave to file a supplementary factum and dismissed his appeal - The accused sought leave to appeal - The Crown acknowledged the unnecessarily severe application of pro­cedures that resulted in the accused being treated in a high handed and insensitive manner - In denying leave to appeal the sentence and affirming the conviction, the Newfoundland Court of Appeal ordered the Crown to pay the accused's party and party costs - See paragraphs 43 to 52.

Criminal Law - Topic 4593

Procedure - Costs - For oppressive, improper, abusive, frivolous, etc. conduct (incl. trial judge) - [See Criminal Law - Topic 4591 ].

Criminal Law - Topic 5311

Evidence and witnesses - Inferences - General - An accused was charged with serving alcohol to a person under the age of 19 (Liquor Control Act, s. 67(1)) - At trial the minor testified that he was 14 years old at the time of the incident - Another witness testified that the minor appeared to be 14 to 16 years old - The accused appealed his conviction, asserting that when the essential element of a strict liability offence was that a person was under a certain age that person's testimony was insufficient to prove his age because it was hearsay - The Newfoundland Court of Appeal held that the Crown did not have to establish precise age and the evidence was sufficient to establish that the minor was under the age of 19 - Section 658(2) of the Criminal Code also permitted the trial judge to draw an inference from appearance to be used in the absence of other evidence or by way of corroboration of other evidence - See paragraphs 26 to 29.

Criminal Law - Topic 5656

Punishments (sentence) - Imprisonment and parole - Term of imprisonment - Com­mencement of - A trial judge convicted a self-represented accused of a summary conviction offence and sentenced him to a fine and two days' imprisonment and placed him into immediate custody - The Newfoundland Court of Appeal stated that while two days' imprisonment was not substantial, hardship could arise from being suddenly taken to jail - Further injustice could arise from being effectively deprived of a right to appeal the imprisonment term - The trial judge could have directed the accused to submit himself to custody in 10 days to afford him time to consult a lawyer and obtain bail - This did not mean that time should always be allowed before commencement of a jail term - Rehabilita­tion was less likely to flow from a system that was perceived to produce hardship and injustice - See paragraphs 44 to 46.

Criminal Law - Topic 7471.2

Summary conviction proceedings - Appeals - General - Filing of factum - Three days before a summary conviction appeal hear­ing, the accused learned that the Crown had changed its position - The accused provided the court with a supplementary factum the day before the hearing - The court resorted to the Newfoundland Supreme Court Rules, concluded that the factum was filed late and, based on a dissatisfaction with the practice of late filing, denied the accused's request to file the factum or, alternatively, for a post­ponement - The Newfoundland Court of Appeal held that the court should not have resorted to the Supreme Court Rules and erred in denying leave where rule 19(1) of the Trial Division Criminal Appeal Rules permitted filing at any time before the day of the hearing - Further, the court's discre­tion to deny a postponement was exercised arbitrarily or capriciously - However, the court dismissed the accused's appeal where no miscarriage of justice resulted - See paragraphs 30 to 42.

Criminal Law - Topic 7474

Summary conviction proceedings - Appeals - General - Costs - [See Criminal Law - Topic 4591 ].

Evidence - Topic 1566

Hearsay rule - Exceptions and exclusions - Statements about family history - General -Witness's age - [See Criminal Law - Topic 5311 ].

Liquor Control - Topic 3503

Offences and penalties - General - Strict liability offence - [See Criminal Law - Topic 5311 ].

Liquor Control - Topic 3510

Offences and penalties - General - Giving alcohol to a minor - A 50 year old accused was convicted of serving alcohol to a person under 19 years of age (Liquor Control Act, s. 67(1)) - A 14 year old minor came to the accused's house - The accused served him three or four drinks - The minor became drunk and could not ride his bicycle - The trial judge held that there was a high degree of willful blind­ness on the accused's part and a total absence of due diligence and sentenced him to two days' imprisonment and a $250 fine - A summary conviction appeal court affirmed the sentence - The accused sought leave to appeal - The Newfoundland Court of Appeal stated that leave could only be granted for questions of law alone and, if fitness of sentence was a question of law (which the court did not determine), it would not interfere with the sentence - See paragraphs 18 to 25.

Trials - Topic 1166

Summary convictions - Strict liability offences - Elements of - [See Criminal Law - Topic 5311 ].

Trials - Topic 1185

Summary convictions - Appeals - Filing of factum - [See Criminal Law - Topic 7471.2 ].

Trials - Topic 4304

Costs - When available - [See Criminal Law - Topic 4591 ].

Cases Noticed:

R. v. Loughery (1992), 73 C.C.C.(3d) 411 (Alta. C.A.), refd to. [para. 19].

R. v. L.F.W. (1997), 155 Nfld. & P.E.I.R. 115; 481 A.P.R. 115 (Nfld. C.A.), refd to. [para. 20].

R. v. J.M. (1998), 160 Nfld. & P.E.I.R. 38; 494 A.P.R. 38 (Nfld. C.A.), refd to. [para. 20].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C.(3d) 193, refd to. [para. 20].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327, refd to. [para. 20].

R. v. Amero (1975), 24 C.C.C.(2d) 234 (N.S. Mag. Ct.), refd to. [para. 26].

R. v. Linnerth (1957), 119 C.C.C. 395 (Ont. H.C.), refd to. [para. 26].

R. v. G.A.J. (1993), 120 N.S.R.(2d) 432; 332 A.P.R. 432 (C.A.), refd to. [para. 28].

R. v. R.G.G. (1995), 100 Man.R.(2d) 200; 91 W.A.C. 200 (C.A.), refd to. [para. 28].

Seaward v. Clarke and Noseworthy (1995), 133 Nfld. & P.E.I.R. 58; 413 A.P.R. 58 (Nfld. C.A.), refd to. [para. 36].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271; 38 C.C.C.(3d) 193, refd to. [para. 49].

Counsel:

David Bussey, for the appellant;

Kathleen Healey, for the respondent.

This appeal was heard on May 18, 1999, by Wells, C.J.N., Mahoney and Marshall, JJ.A., of the Newfoundland Court of Appeal. Wells, C.J.N., delivered the following rea­sons for judgment on June 8, 1999.