R. v. Topsnik, (1977) 8 A.R. 7 (TD)

• Judge: Moshansky, J.
• Case Date: September 12, 1977
• Citations: (1977), 8 A.R. 7 (TD)

R. v. Topsnik (1977), 8 A.R. 7 (TD)

MLB headnote and full text

R. v. Topsnik

Indexed As: R. v. Topsnik

Alberta Supreme Court

Trial Division

Judicial District of Calgary

Moshansky, J.

September 12, 1977.

Summary:

This case arose out of a charge against the accused of assault contrary to s. 245(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34. The information charged that the accused "did unlawfully assault and thereby cause bodily harm". A judge of provincial court heard the evidence and then ruled that he was without jurisdiction, because the information was void for duplicity. The Crown appealed by way of stated case.

The Alberta Supreme Court, Trial Division, dismissed the appeal and held that the Crown should have applied for an order of mandamus. The Trial Division held that the dismissal of the charge for duplicity was not tantamount to an acquittal or a determination of the case within the meaning of s. 762(1) of the Criminal Code and that an appeal by way of stated case did not lie - see paragraphs 1 to 15.

The Trial Division held that the information was not void for duplicity - see paragraphs 16 to 21.

Administrative Law - Topic 3683

Judicial review - Mandamus to courts and judicial officers - Declension of jurisdiction - A trial judge declined jurisdiction over a prosecution, because the information was void for duplicity - The Alberta Supreme Court, Trial Division, held that the Crown's remedy was by way of an application for an order of mandamus, not an appeal by way of stated case - See paragraphs 1 to 15.

Criminal Law - Topic 7280

Summary conviction proceedings - Informations - Defects - Duplicity - Assault - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 245(2) - An information charged that the accused "did unlawfully assault and thereby cause bodily harm" - The Alberta Supreme Court, Trial Division, held that the information was not void for duplicity - See paragraphs 16 to 21.

Criminal Law - Topic 7500

Summary conviction proceedings - Appeal by way of stated case - When available to the parties - Criminal Code of Canada, R.S.C. 1970, c. C-34, s. 762(1) - A judge of provincial court heard the evidence on a prosecution for assault, then ruled that he was without jurisdiction, because the information was void for duplicity - The Crown appealed by way of stated case - The Alberta Supreme Court, Trial Division, held that the dismissal of the charge for duplicity was not tantamount to an acquittal or a determination of the case within the meaning of s. 762(1) of the Criminal Code and that an appeal by way of stated case did not lie - The Trial Division held that the Crown should apply for an order of mandamus - See paragraphs 1 to 15.

Cases Noticed:

Cheyenne Realty Ltd. v. Thompson (1974), 1 N.R. 273; 15 C.C.C.(2d) 49 (S.C.C.), appld. [para. 8].

R. v. Com'rs of Inland Revenue (1884), 12 Q.B.D. 461, appld. [para. 8].

R. v. Canadian Pacific Ltd. (1976), 1 A.R. 177 (Alta. C.A.), appld. [para. 9].

Kipp v. A.-G. Ont., [1965] 2 C.C.C. 133 (S.C.C.), consd. [para. 10].

A.-G. Alta. v. Wallace et al. (1973), 21 C.R.N.S. 303 (Alta. C.A.), consd. [para. 10].

R. v. Crowley (1969), 68 W.W.R.(N.S.) 603 (Sask. D.C.), refd to. [para. 10].

Dressler v. Tallman Gravel & Sand Supply Ltd., [1963] 1 C.C.C. 225 (S.C.C.), dist. [para. 13].

Re R. v. Smith (1974), 7 N.B.R.(2d) 597; 16 C.C.C.(2d) 11 (N.B.C.A.), appld. [para. 14].

Re Burchill (1974), 7 N.B.R.(2d) 597; 16 C.C.C.(2d) 11 (N.B.C.A.), appld. [para. 14].

Pratt v. A.A. Sites Ltd., [1938] 2 All E.R. 371, appld. [para. 14].

Thibert v. A.G. Alberta et al. (1970), 71 W.W.R.(N.S.) 473 (Alta. S.C.), appld. [para. 17].

R. v. Prpich (1971), 4 C.C.C.(2d) 325, dist. [para. 18].

R. v. Jackson (1975), 11 N.S.R.(2d) 154; 5 A.P.R. 154 (N.S.C.A.), folld. [para. 18].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 245(2) [para. 2]; sect. 762(1) [para. 7].

Counsel:

J.M. Farrell, for the Crown;

J.S. Patterson, for the accused.

This case was heard at Calgary, Alberta, before MOSHANSKY, J., of the Alberta Supreme Court, Trial Division, Judicial District of Calgary.

On September 12, 1977, MOSHANSKY, J., delivered the following judgment: