R. v. Tassou, (1984) 59 A.R. 219 (ProvCt)

• Judge: Ketchum, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: December 03, 1984
• Citations: (1984), 59 A.R. 219 (ProvCt)

R. v. Tassou (1984), 59 A.R. 219 (ProvCt)

MLB headnote and full text

R. v. Tassou

(Docket No. C017-049459-4A01)

Indexed As: R. v. Tassou

Alberta Provincial Court

Ketchum, P.C.J.

December 3, 1984.

Summary:

An accused was charged under s. 173 of the Criminal Code of Canada, which stated that "Everyone who, without lawful excuse, the proof of which lies upon him, loiters or prowls at night upon the property of another person near a dwelling house situated on that property is guilty of an offence punishable on summary conviction". The accused submitted that s. 173 violated his rights under s. 11(c) and (d) of the Canadian Charter of Rights and Freedoms.

The Alberta Provincial Court held that s. 173, which was not a reverse onus provision, did not violate s. 11(c) and (d) of the Charter.

Civil Rights - Topic 4303

Protection against self-incrimination - Right to refuse to testify - Charter of Rights and Freedoms, s. 11(c) - Section 173 of the Criminal Code of Canada stated that "Everyone who, without lawful excuse, the proof of which lies upon him, loiters or prowls at night upon the property of another person near a dwelling house situated on that property is guilty of an offence punishable on summary conviction" - The Alberta Provincial Court held that s. 173 did not infringe the accused's right not to be compelled to testify, as guaranteed under s. 11(c) of the Charter - See paragraphs 7 to 13.

Civil Rights - Topic 4945

Presumption of innocence - Evidence and proof - Reverse onus provisions - Section 173 of the Criminal Code of Canada stated that "Everyone who, without lawful excuse, the proof of which lies upon him, loiters or prowls at night upon the property of another person near a dwelling house situated on that property is guilty of an offence punishable on summary conviction" - The Alberta Provincial Court held that s. 173 was not a reverse onus provision and did not violate an accused's right to be presumed innocent, as guaranteed under s. 11(d) of the Canadian Charter of Rights and Freedoms - See paragraphs 7 to 13.

Civil Rights - Topic 8585

Canadian Charter of Rights and Freedoms - Practice - Time for deciding Charter issues - An accused challenged the Criminal Code section under which he was charged as being contrary to s. 11(c) and (d) of the Charter - The Alberta Provincial Court held that the Charter issue should be resolved before the accused was tried under the section - See paragraphs 2 to 6.

Statutes - Topic 1845

Interpretation - Intrinsic aids - Headings - The Alberta Provincial Court declined to resort to the heading of a section in the Criminal Code for assistance in interpreting it, where there was no ambiguity in the words of the section - See paragraph 9.

Cases Noticed:

R. v. Oakes (1983), 2 C.C.C.(3d) 338 (Ont. C.A.), dist. [para. 4].

R. v. Stanger, [1983] 5 W.W.R. 331; 46 A.R. 241, dist. [para. 4].

R. v. Kendall; R. v. McCaffrey (1983), 42 A.R. 183; 2 C.C.C.(3d) 224, refd to. [para. 6].

R. v. Andsten and Petrie (1960), 33 C.R. 213, refd to. [para. 8].

R. v. MacLean (1971), 1 C.C.C.(2d) 277, refd to. [para. 8].

Director of Public Prosecutors v. Schildkamp, [1971] A.C. 1, refd to. [para. 9].

Attorney General of Canada v. Jackson, [1946] S.C.R. 489, refd to. [para. 9].

R. v. Carroll (1983), 40 Nfld. & P.E.I.R. 147; 115 A.P.R. 147; 4 C.C.C.(3d) 131, refd to. [para. 10].

R. v. Holmes (1983), 41 O.R.(2d) 250, folld. [para. 12].

R. v. Springer (1983), 9 W.C.B. 318 (Man. P.C.), refd to. [para. 14].

R. v. C.D.C. (1983), 9 W.C.D. 444 (Ont. P.C.), refd to. [para. 14].

R. v. Peltier (1982), 8 W.C.B. 107 (Ont. P.C.), refd to. [para. 14].

R. v. Lozowchuk (1984), 32 Sask.R. 51 (Q.B.), refd to. [para. 14].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(c), sect. 11(d) [para. 2].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 173 [para. 7].

Counsel:

M. Unsworth, for the Crown;

B. Beresh, for the accused.

This application was heard before Ketchum, P.C.J., of the Alberta Provincial Court, Judicial District of Edmonton, who delivered the following judgment on December 3, 1984.