R. v. Wells (D.R.), 2012 ABQB 77

• Judge: Gates, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 26, 2011
• Citations: 2012 ABQB 77;(2012), 531 A.R. 387 (QB)

R. v. Wells (D.R.) (2012), 531 A.R. 387 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JA.104

Her Majesty the Queen (respondent) v. Dale Richard Wells (appellant)

(100756352S1; 100756352P1; 2012 ABQB 77)

Indexed As: R. v. Wells (D.R.)

Alberta Court of Queen's Bench

Judicial District of St. Paul

Gates, J.

January 31, 2012.

Summary:

Following a trial, the accused was acquitted of charges of assault and uttering a threat. The trial judge ordered that the accused enter into a common law peace bond. The accused appealed/applied for judicial review.

The Alberta Court of Queen's Bench allowed the application and quashed the peace bond.

Courts - Topic 561

Judges - Powers - To make order not requested - [See second Criminal Law - Topic 6965 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See third Criminal Law - Topic 6965 ].

Criminal Law - Topic 6961

Recognizances and undertakings - Peace bonds and orders to keep the peace - General - Following a trial, the accused was acquitted of charges of assault and uttering a threat - The trial judge ordered that the accused enter into a common law peace bond - The accused appealed/applied for judicial review, raising the following grounds of appeal: "1. the Learned Trial Judge lacked a common law jurisdiction to require the [accused] to enter into a peace bond or other form of recognizance; 2. the Learned Trial Judge erred by imposing a common law peace bond when such an order was not requested by the Crown; 3. the Learned Trial Judge's reasons for imposing the common law peace bond were insufficient to permit meaningful appellate review; and 4. the facts as found by the Learned Trial Judge did not justify imposing a common law peace bond" - With respect to the standard of review, the Alberta Court of Queen's Bench held that "1. the issue of jurisdiction to order a common law peace bond would be subject to review as a 'true question of jurisdiction' ...; 2. the Learned Trial Judge's choice to order a common law peace bond: a. where not suggested by the Crown, or b. without argument and evidence, are questions of natural justice and reviewed on a correctness standard; 3. the necessity for reasons is a question of natural justice and reviewed on a correctness standard; and 4. the reasoning and factual basis for a common law peace bond is a question of mixed fact and law and due deference." - See paragraphs 9 to 15.

Criminal Law - Topic 6964

Recognizances and undertakings - Peace bonds and orders to keep the peace - Jurisdiction - Following a trial, the accused was acquitted of charges of assault and uttering a threat - The trial judge ordered that the accused enter into a common law peace bond - The accused appealed/applied for judicial review, asserting that the trial judge lacked a common law jurisdiction to require the accused to enter into a peace bond or other form of recognizance - The Alberta Court of Queen's Bench rejected the assertion - The accused did not meet the standard of displacing the proposition that this was "a true question of jurisdiction" - Also, the impugned common law peace bond authority was an accepted though unusual facet of Canadian jurisprudence - The trial judge was reasonable when he concluded he had authority to potentially order a common law peace bond against the accused - See paragraphs 16 to 19.

Criminal Law - Topic 6964

Recognizances and undertakings - Peace bonds and orders to keep the peace - Jurisdiction - Following a trial, the accused was acquitted of charges of assault and uttering a threat - The trial judge ordered that the accused enter into a common law peace bond - The Alberta Court of Queen's Bench quashed the peace bond - The trial judge failed to give the accused prior notice of the court's intention to require him to enter into a common law peace bond, and also failed to afford him an opportunity to either call evidence or make submissions in relation to that potential restriction of his freedom - These procedural short-comings amounted to a denial of natural justice giving rise to a loss of jurisdiction - See paragraphs 22 to 39.

Criminal Law - Topic 6965

Recognizances and undertakings - Peace bonds and orders to keep the peace - Common law peace bonds - [See Criminal Law - Topic 6961 and both Criminal Law - Topic 6964 ].

Criminal Law - Topic 6965

Recognizances and undertakings - Peace bonds and orders to keep the peace - Common law peace bonds - Following a trial, the accused was acquitted of charges of assault and uttering a threat - The trial judge ordered that the accused enter into a common law peace bond - The Alberta Court of Queen's Bench quashed the peace bond - The trial judge made the common law peace bond without inquiry as to whether that remedy was one sought by the Crown - It was ill-advised for the trial judge to impose this remedy on his own motion - In so doing, he blurred the important distinction between the role of the Crown and the role of the court in the adversarial process - See paragraphs 41 and 42.

Criminal Law - Topic 6965

Recognizances and undertakings - Peace bonds and orders to keep the peace - Common law peace bonds - Following a trial, the accused was acquitted of charges of assault and uttering a threat - The trial judge ordered that the accused enter into a common law peace bond - The Alberta Court of Queen's Bench quashed the peace bond - The trial judge provided no meaningful explanation of why he considered a common law peace bond appropriate - He made no express finding that there was probable ground to suspect future misbehavior on the part of the accused - His reasons were silent as to why he decided to impose a common law peace bond - The facts did not establish a foundation raising probable ground to suspect future misbehavior - A properly instructed trier of fact could not reasonably come to such a conclusion - See paragraphs 43 to 46.

Cases Noticed:

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321; 119 D.L.R.(4th) 464, refd to. [para. 7].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 184 D.L.R.(4th) 193; 2000 SCC 15, refd to. [para. 9].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 9].

R. v. Lynch (J.M.), [2001] B.C.T.C. 1426; 51 W.C.B.(2d) 356; 2001 BCSC 1426, refd to. [para. 11].

R. v. Fehr, 1997 CanLII 759 (B.C.S.C.), refd to. [para. 11].

R. v. Taylor, 2001 BCPC 183, refd to. [para. 11].

Thorburn v. R. (2010), 500 A.R. 1; 2010 ABQB 390, refd to. [para. 12].

Stanny, Re (2009), 484 A.R. 163; 2009 ABQB 161, refd to. [para. 12].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 13].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 14].

Calgary (City) v. Municipal Government Board (Alta.) et al. (2012), 519 A.R. 259; 539 W.A.C. 259 (C.A.), refd to. [para. 14].

R. v. Doyle, [1977] 1 S.C.R. 597; 9 N.R. 285; 10 Nfld. & P.E.I.R. 45; 17 A.P.R. 45; 68 D.L.R.(3d) 270, refd to. [para. 16].

R. v. Mousseau (2011), 273 C.C.C.(3d) 109; 2011 ONCJ 222, refd to. [para. 18].

J.H. v. W.B. (2001), 44 C.R.(5th) 39; 2001 YKTC 502, refd to. [para. 18].

R. v. Parks, [1992] 2 S.C.R. 871; 140 N.R. 161; 55 O.A.C. 241; 95 D.L.R.(4th) 27, refd to. [para. 18].

Broomes v. R. (1984), 12 C.C.C.(3d) 220 (Ont. H.C.), refd to. [para. 21].

R. v. Marshall (2003), 61 W.C.B.(2d) 30 (Sup. Ct.), refd to. [para. 21].

R. v. Musoni (B.) (2009), 243 C.C.C.(3d) 17 (S.C.), affd. [2009] O.A.C. Uned. 569; 248 C.C.C.(3d) 487; 2009 ONCA 829, refd to. [para. 21].

R. v. Shaben et al., [1972] 3 O.R. 613; 8 C.C.C.(2d) 422, refd to. [para. 24].

R. v. Gerrand - see Boon et al. v. Gerrand.

Boon et al. v. Gerrand (2005), 382 A.R. 245; 2005 ABQB 353, refd to. [para. 25].

R. v. Charles (1990), 88 Sask.R. 269; 61 C.C.C.(3d) 239 (Sask. Q.B.), refd to. [para. 26].

R. v. Working Justices; Ex parte Gossage, [1973] 2 All E.R. 621 (C.A.), refd to. [para. 27].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 31].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 208 D.L.R.(4th) 1; 2002 SCC 1, refd to. [para. 31].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 31].

R. v. Parks, [1992] 2 S.C.R. 871; 140 N.R. 161; 55 O.A.C. 241; 95 D.L.R.(4th) 27, refd to. [para. 41].

R. v. G.W.C. (2000), 277 A.R. 20; 242 W.A.C. 20; 2000 ABCA 333, refd to. [para. 42].

R. v. Tkachuk (E.A.) (2001), 293 A.R. 171; 257 W.A.C. 171; 2001 ABCA 243, refd to. [para. 42].

R. v. Keough (J.A.) (2012), 519 A.R. 236; 539 W.A.C. 236; 2012 ABCA 14, refd to. [para. 42].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 43].

Authors and Works Noticed:

Jones and de Villars, Principles of Administrative Law (5th Ed. 2004), generally [para. 33].

Counsel:

A.D. Pringle, Q.C., for the appellant;

K. MacDonald and R. Brandt, for the respondent.

This application was heard on September 26, 2011, by Gates, J., of the Alberta Court of Queen's Bench, Judicial District of St. Paul, who delivered the following memorandum of decision on January 31, 2012.