R. v. Tingley (R.),

• Jurisdiction: New Brunswick
• Judge: Richard, Bell and Quigg, JJ.A.
• Neutral Citation: 2015 NBCA 51
• Citation: 2015 NBCA 51,(2015), 444 N.B.R.(2d) 1 (CA)
• Court: Court of Appeal (New Brunswick)
• Date: 05 August 2015

R. v. Tingley (R.) (2015), 444 N.B.R.(2d) 1 (CA);

    444 R.N.-B.(2e) 1; 1163 A.P.R. 1

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.B.R.(2d) TBEd. FE.016

Renvoi temp.: [2016] N.B.R.(2d) TBEd. FE.016

Her Majesty The Queen (appellant) v. Rodney Tingley, Roger Tingley and Christopher Tingley (respondents)

(177-11-CA; 2015 NBCA 51)

Indexed As: R. v. Tingley (R.) et al.

Répertorié: R. v. Tingley (R.) et al.

New Brunswick Court of Appeal

Richard, Bell and Quigg, JJ.A.

August 5, 2015.

Summary:

Résumé:

The accused, eight members of one family, were charged in January 2009 with multiple drug-related offences. One accused pleaded guilty and charges against three were stayed by the Crown. Four accused remained to be tried. For 2.5 years defence counsel brought a multitude of motions, some without merit, which had the effect of delaying all attempts to hold a trial. Some pre-trial rulings had been made, including results the Crown disagreed with, and some had yet to be heard. In December 2011, the Crown determined that unfavourable pre-trial rulings made the continued prosecution of the accused "no longer viable". The Crown abruptly terminated the prosecution by advising that it would be calling no evidence, which led to directed verdicts of acquittal. The Crown immediately appealed the acquittals, challenging the pre-trial rulings. The Crown sought a new trial.

The New Brunswick Court of Appeal dismissed the appeal on the narrow ground that the Crown's appeal was an abuse of process, in that it was attempting to circumvent the rule against interlocutory appeals.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - [See Criminal Law - Topic 4825 ].

Criminal Law - Topic 4825

Appeals - Indictable offences - Right of appeal - From an interlocutory decision - The accused, eight members of one family, were charged in January 2009 with multiple drug-related offences - One accused pleaded guilty and charges against three were stayed by the Crown - Four accused remained to be tried - For 2.5 years defence counsel brought a multitude of motions, some without merit, which had the effect of delaying all attempts to hold a trial - Some pre-trial rulings had been made, including results the Crown disagreed with, and some had yet to be heard - In December 2011, the Crown determined that unfavourable pre-trial rulings made the continued prosecution of the accused "no longer viable" as folding the prosecution was necessary to protect a privilege - The Crown abruptly terminated the prosecution by advising that it would be calling no evidence, which led to directed verdicts of acquittal - The Crown immediately appealed the acquittals, challenging the pre-trial rulings - The Crown sought a new trial - The New Brunswick Court of Appeal dismissed the appeal on the ground that the Crown's appeal was an abuse of process as an attempt to circumvent the rule against interlocutory appeals - Such appeals were permitted only where the Crown had no reasonable alternative, such as (1) where the ruling excluded evidence critical to the Crown's case or (2) where complying with the interlocutory ruling would create a reasonable prospect of harm to a legally recognized interest the court found worthy of protection (such as privilege) - The record did not disclose that the purpose of ending the prosecution was to protect privilege - Further, the Crown's alternative basis for ending the prosecution (termination necessary because the trial judge exceeded his constitutional authority respecting prosecutorial discretion) was without merit - Not calling evidence, leading to termination of the prosecution without a trial on the merits, was an unjustifiable decision to gain an advantage not available to an accused (appeal of interlocutory decisions) - That constituted an abuse of process - See paragraphs 109 to 144.

Criminal Law - Topic 4826

Appeals - Indictable offences - Right of appeal - Requirement of decision on merits at trial - The Crown, following unfavourable pre-trial rulings by the trial judge, indicated that it would not be calling evidence at trial - The trial judge allowed the accused's motions for directed verdicts of acquittal - The Crown appealed the acquittals, challenging the pre-trial rulings - In discussing the scope of appellate review, the New Brunswick Court of Appeal stated that "while I agree with the Attorney General that the decision not to call any evidence at trial is immune from review, the law is clear that the effect of that decision is not so immune. ... while the appellate court cannot review the Crown's discretionary decision not to call evidence, the court can nevertheless dismiss an appeal where it concludes the decision not to call evidence constitutes an abuse of process. An abuse of process will occur where the decision to immediately halt the proceedings and then appeal is unfair to the point of being contrary to the interests of justice." - See paragraph 108.

Criminal Law - Topic 4828

Appeals - Indictable offences - Right of appeal - By Crown - [See Criminal Law - Topic 4825 and Criminal Law - Topic 4826 ].

Practice - Topic 8865

Appeals - Quashing or dismissal of appeals - Abuse of process - [See Criminal Law - Topic 4825 ].

Cases Noticed:

R. v. Nixon (O.), [2011] 2 S.C.R. 566; 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 2011 SCC 34, refd to. [para. 5].

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 5].

R. v. Pires (F.B.) - see/voir R. v. Lising (R.) et al.

R. v. Rowbotham et al. (1988), 25 O.A.C. 321 (C.A.), refd to. [para. 12].

R. v. Guess (G.) (2000), 143 B.C.A.C. 51; 235 W.A.C. 51; 2000 BCCA 547, leave to appeal dismissed (2001), 269 N.R. 398; 159 B.C.A.C. 177; 259 W.A.C. 177 (S.C.C.), refd to. [para. 21].

R. v. Trang (D.) et al. (2002), 331 A.R. 216; 2002 ABQB 1036, refd to. [para. 31].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 53].

R. v. Charette (1977), 33 N.R. 161 (Ont. C.A.), affd. [1980] 1 S.C.R. 785; 33 N.R. 158, refd to. [para. 54].

R. v. Parsons - see/voir R. v. Charette.

R. v. Chesson and Vanweenan, [1988] 2 S.C.R. 148; 87 N.R. 115; 90 A.R. 347, refd to. [para. 54].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 94].

R. v. Curragh Inc. et al., [1997] 1 S.C.R. 537; 209 N.R. 252; 159 N.S.R.(2d) 1; 468 A.P.R. 1, refd to. [para. 94].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 SCC 65, refd to. [para. 94].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 104].

Kourtessis et al. v. Minister of National Revenue et al., [1993] 2 S.C.R. 53; 153 N.R. 1; 27 B.C.A.C. 81; 45 W.A.C. 81, refd to. [para. 112].

Canada (Attorney General) v. Fafalios (2012), 292 O.A.C. 152; 2012 ONCA 365, refd to. [para. 114].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 115].

R. v. Anderson (F.), [2014] 2 S.C.R. 167; 458 N.R. 1; 350 Nfld. & P.E.I.R. 289; 1088 A.P.R. 289; 2014 SCC 41, refd to. [para. 135].

Counsel:

Avocats:

Kathryn Gregory, for the appellant;

Alison Ménard, for the respondent, Richard Tingley;

Graham Sleeth, Q.C., for the respondent, Roger Tingley;

Brian Munro, for the respondent, Christopher Tingley.

This appeal was heard on October 7-9, 2014, before Richard, Bell and Quigg, JJ.A., of the New Brunswick Court of Appeal.

On August 5, 2015, Richard, J.A., delivered the following judgment for the court in English, with the official bilingual version filed on October 2, 2015.