R. v. Tychkowsky, (1980) 27 A.R. 394 (QB)

• Judge: Cormack, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 03, 1980
• Citations: (1980), 27 A.R. 394 (QB)

R. v. Tychkowsky (1980), 27 A.R. 394 (QB)

MLB headnote and full text

R. v. Tychkowsky

(No. 8003-0771-0-C)

Indexed As: R. v. Tychkowsky

Alberta Court of Queen's Bench

Judicial District of Edmonton

Cormack, J.

October 3, 1980.

Summary:

This case arose out of an accused's application for certiorari to quash the last three counts of an indictment. The accused was charged with rape, pleaded not guilty and elected trial by judge alone. A preliminary inquiry was held and the accused was committed to trial on the rape charge. Based on the evidence at the preliminary inquiry, the Crown preferred another indictment adding two counts of gross indecency and one count of sexual intercourse with a previously chaste female between the age of 14 and 16 years. All charges arose from the same series of events. The Alberta Court of Queen's Bench dismissed the application.

Criminal Law - Topic 4074

Procedure - Indictment - Amendment - Adding counts disclosed by evidence taken after preliminary inquiry - On a rape charge an accused elected trial by judge alone - Based on the evidence disclosed at the preliminary, the Crown preferred another indictment adding two counts of gross indecency and one count of sexual intercourse with a previously chaste female between the age of 14 and 16 years - The accused applied to quash the additional counts because: (1) the Crown failed to obtain the consent of the attorney general or a judge before preferring the second indictment, (2) the accused was not allowed an election on the additional counts (3) the court was not asked to commit or discharge the accused nor was the accused committed to trial on the additional charges, (4) the accused's freedom to cross-examine witnesses at the preliminary was restricted because he did not know of the additional counts, (5) the accused was denied the opportunity to make a statement or call evidence on the additional counts, (6) the additional counts were not based on legally admissible evidence of the complainant's age and the accused did not consent to their addition and (7) the accused was denied a fair hearing - The Alberta Court of Queen's Bench dismissed the application - See paragraph 2.

NOTE: For a similar case see R. v. Atkinson (1981), 33 N.B.R.(2d) 137; 80 A.P.R. 137.

Cases Noticed:

R. v. Wilson, 35 C.C.C.(2d) 414, folld. [para. 4].

R. v. Moulton, [1980] 1 W.W.R. 711; 19 A.R. 286, consd. [paras. 13, 15].

R. v. Moulton, [1979] 1 W.W.R. 82; 14 A.R. 613, refd to. [para. 14].

R. v. Forsyth (1980), 32 N.R. 520, refd to. [para. 15].

Haines v. Guthrie, 13 Q.B.D. 818, consd. [para. 22].

R. v. Hauberg, 8 W.W.R. 1130, refd to. [para. 24].

R. v. Denton, [1950] 2 W.W.R. 315, refd to. [para. 25].

R. v. Linerth, 119 C.C.C. 395, refd to. [para. 25].

R. v. Harford, 49 W.W.R. 445, refd to. [para. 25].

R. v. Hicks (1968), 1 D.L.R.(3d) 724, refd to. [para. 25].

R. v. Amero, 24 C.C.C.(2d) 234, refd to. [para. 25].

E. v. Reginam, 53 W.W.R.(N.S.) 114, consd. [para. 25].

R. v. Cox, [1898] 1 Q.B. 179, consd. [para. 27].

King v. Turner, [1910] 1 K.B. 346, consd. [para. 27].

R. v. Recorder of Grimsby, [1951] 2 All E.R. 889, consd. [para. 28].

Martin Hargreaves Co. v. Wrigley, 7 W.W.R. 760, refd to. [para. 24].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 142 [paras. 2, 8, 12, 14]; sect. 146(2) [paras. 20, 21]; sect. 157 [para. 20]; sect. 158 [para. 31]; sect. 464 [para. 6]; sect. 468 [para. 2]; sect. 469 [paras. 2, 4, 17]; sect. 475 [paras. 2, 10]; sect. 496(2)(b) [paras. 7, 9, 18, 30, 31, 32]; sect. 506 [paras. 2, 32]; sect. 507 [paras. 2, 4, 33]; sect. 585(2) [para. 30].

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 1(a), sect. 1(b), sect. 2(e) [paras. 2, 34].

Authors and Works Noticed:

Cross on Evidence (1st Ed.), p. 445 [para. 29].

Counsel:

George Parker, for the applicant;

E.M. Nash, for the respondent.

This case was heard by CORMACK, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who on October 3, 1980, delivered the following judgment.