R. v. Walsh (T.), (1996) 149 N.S.R.(2d) 169 (CA)

• Judge: Hallett, Chipman and Flinn, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 26, 1996
• Jurisdiction: Nova Scotia
• Citations: (1996), 149 N.S.R.(2d) 169 (CA)

R. v. Walsh (T.) (1996), 149 N.S.R.(2d) 169 (CA);

    432 A.P.R. 169

MLB headnote and full text

Her Majesty The Queen (appellant) v. Trevor Walsh (respondent)

(C.A.C. No. 118036)

Indexed As: R. v. Walsh (T.)

Nova Scotia Court of Appeal

Hallett, Chipman and Flinn, JJ.A.

March 26, 1996.

Summary:

The accused was charged with assault by way of private prosecution. The prosecu­tor/victim failed to appear in the summary conviction court. The trial judge dismissed the charge for want of prosecution, without arraigning the accused and without taking his plea. The accused obtained a Certificate of Dismissal under s. 808(2) of the Criminal Code. The Crown had previously prepared an indictment charging the accused with assault causing bodily harm. The accused pleaded autrefois acquit and claimed that the Certificate of Dismissal barred the subse­quent proceeding.

The Nova Scotia Supreme Court, in a judgment reported 142 N.S.R.(2d) 232; 407 A.P.R. 232, held that autrefois acquit did not apply, because the accused (not having pleaded) was never in jeopardy of being convicted. The court held that the proceed­ings on the second charge were barred by the Certificate of Dismissal. The court granted a stay of proceedings. The Crown appealed.

The Nova Scotia Court of Appeal allowed the appeal, set aside the stay and ordered a new trial. The Certificate of Dismissal barred only further summary conviction proceed­ings. Autrefois acquit did not apply, because the accused was never in jeopardy of being convicted.

Criminal Law - Topic 4225

Procedure - Pleas - Plea of autrefois acquit - The accused was charged with assault by way of private prosecution (summary conviction) - The prosecut­or/ victim did not appear - The trial judge dismissed the charge, without arraigning the accused and taking his plea, for want of prosecution - The Crown charged the accused with assault causing bodily harm (indictable) - The accused pleaded autrefois acquit - The Nova Scotia Court of Appeal affirmed that autrefois acquit did not apply - The trial judge could not have convicted the accused without ar­raigning him and taking his plea, as required by s. 801 of the Criminal Code - Accordingly, there was no proceeding in which the accused could have been con­victed - Without having pleaded, the accused was never in jeopardy of being convicted in the prior proceeding - See paragraphs 54 to 79.

Criminal Law - Topic 4225

Procedure - Pleas - Plea of autrefois acquit - The Nova Scotia Court of Appeal stated that "to successfully raise the plea of autrefois acquit to a subsequent charge, the accused must have previously been 'in jeopardy' on the same or substantially the same offence. For the purpose of consider­ing the plea of autrefois acquit, there are no cases which hold that an accused is in jeopardy before entering a plea. In my opinion this is a satisfactory point in the sequence of criminal proceedings to draw the line as to when an accused is 'in jeop­ardy' for the purpose of considering the merits of a plea of autrefois acquit. In short, the concept that an accused must have been in jeopardy on a previous occa­sion, in my opinion, means in jeopardy of being convicted in the prior proceedings for the same or substantially the same offence. Therefore, without having pleaded before [the judge] the [accused] was not in jeopardy." - See paragraph 78.

Criminal Law - Topic 4241

Procedure - Certificate or order of dis­missal - As a bar to subsequent proceed­ings - The accused was charged with assault by way of private prosecution (summary conviction) - The prosecut­or/ victim did not appear - The trial judge dismissed the charge, before plea, for want of prosecution - The victim had not appeared because the Crown advised they were charging the accused with assault causing bodily harm (indictable) - The accused obtained a certificate of dismissal under s. 808(2) of the Criminal Code, which barred "subsequent proceedings against the defendant in respect of the same cause" - The Nova Scotia Court of Appeal held that the certificate of dis­missal respecting the summary conviction assault charge did not bar proceeding by way of indictment for assault causing bodily harm - See paragraphs 38 to 53.

Cases Noticed:

R. v. Pirri (1978), 27 N.S.R.(2d) 41; 41 A.P.R. 41; 41 C.C.C.(2d) 499 (C.A.), refd to. [para. 25].

R. v. Atkinson, [1978] 1 S.C.R. 1018; 22 N.R. 523; 37 C.C.C.(2d) 416, refd to. [para. 33].

R. v. Petersen, [1982] 2 S.C.R. 493; 44 N.R. 92; 18 Sask.R. 162; 69 C.C.C.(2d) 385, refd to. [para. 33].

R. v. Rothman, [1966] 4 C.C.C. 316 (Ont. H.C.), refd to. [para. 36].

R. v. Elrington (1861), 1 B. & S. 688; 121 E.R. 870, refd to. [para. 36].

R. v. Miles (1890), 24 Q.B.D. 423, refd to. [para. 36].

R. v. Riddle, [1980] 1 S.C.R. 380; 29 N.R. 91; 18 A.R. 525; 48 C.C.C.(2d) 365, refd to. [para. 39].

R. v. Logan (1981), 49 N.S.R.(2d) 59; 96 A.R.P. 59; 64 C.C.C.(2d) 238 (C.A.), refd to. [para. 46].

R. v. Smith, [1959] S.C.R. 638, refd to. [para. 57].

R. v. C.N., [1992] 3 S.C.R. 471; 144 N.R. 293; 52 Q.A.C. 51, refd to. [para. 58].

R. v. Atkinson (1976), 22 N.R. 524; 32 C.C.C.(2d) 361 (Man. C.A.), refd to. [para. 60].

R. v. Gould, [1987] 1 S.C.R. 499; 75 N.R. 319; 58 Sask.R. 114, refd to. [para. 63].

R. v. Pretty (1989), 47 C.C.C.(3d) 70 (B.C.C.A.), refd to. [para. 63].

R. v. Karpinski, [1957] S.C.R. 343; 117 C.C.C. 241, refd to. [para. 63].

R. v. Selhi (1985), 38 Sask.R. 90; 18 C.C.C.(3d) 131 (C.A.), affd. [1990] 1 S.C.R. 277; 110 N.R. 318; 86 Sask.R. 253; 53 C.C.C.(3d) 576, refd to. [para. 63].

MacNeill v. Nova Scotia (Attorney Gen-eral) (1982), 54 N.S.R.(2d) 72; 112 A.P.R. 72 (C.A.), refd to. [para. 63].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 610(1) [para. 76]; sect. 785(a), sect. 785(b) [para. 29]; sect. 786(1) [para. 30]; sect. 799 [para. 12]; sect. 801(1) [para. 56]; sect. 808 [para. 15].

Counsel:

Denise C. Smith, for the appellant;

Joel E. Pink, Q.C., for the respondent.

This appeal was heard on January 4, 1996, before Hallett, Chipman and Flinn, JJ.A., of the Nova Scotia Court of Appeal.

On March 26, 1996, Hallett, J.A., delivered the following judgment for the Court of Appeal.