R. v. Zaim, (1977) 2 A.R. 421 (TD)

• Judge: McDonald, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 20, 1977
• Citations: (1977), 2 A.R. 421 (TD)

R. v. Zaim (1977), 2 A.R. 421 (TD)

MLB headnote and full text

R. v. Zaim

Indexed As: R. v. Zaim

Alberta Supreme Court

Trial Division

Judicial District of Peace River

McDonald, J.

January 20, 1977.

Summary:

This case arose out of a charge against the accused of speeding contrary to s. 52(1) of the Highway Traffic Act. At the trial of the accused during a voir dire to determine the admissibility of a statement by the accused to police, the accused disclosed what his statement had been. It was inculpatory and the judge indicated that the accused was automatically guilty in the mind of the court. The judge later said that he could segregate the admission in his mind, if necessary. The trial judge then ruled the statement admissible without hearing counsel on the question of admissibility. The accused made an application for an order of prohibition to prevent the judge from continuing with the trial.

The Alberta Supreme Court, Trial Division, dismissed the application.

The Trial Division stated that such statements indicating prejudgment by the trial judge during the course of a trial, particularly when the trial judge indicated that he was aware of his duties upon consideration of the evidence, should not be isolated from the totality of what the trial judge said. The Trial Division stated that no injustice would be done in allowing the trial to continue - see paragraphs 2 to 4.

The Trial Division stated that the failure to hear counsel on admissibility was at most an error of procedure, which might afford a ground of appeal, but did not constitute a defect, want or excess of jurisdiction to found an order of prohibition - see paragraphs 5 to 10.

Administrative Law - Topic 6401

Judicial review - Prohibition - When remedy available - The trial judge ruled a statement by the accused admissible without giving counsel an opportunity to be heard - The accused applied for an order of prohibition to prevent the judge from continuing with the trial - The Alberta Supreme Court, Trial Division, dismissed the application - The Trial Division stated that the failure to hear counsel was at most an error of procedure, which might afford a ground of appeal, but did not constitute a defect, want or excess of jurisdiction to found an order of prohibition - See paragraphs 5 to 10.

Criminal Law - Topic 4633

Procedure - Mistrials - Prejudgment - Statements by judge - During a voir dire to determine the admissibility of a statement by the accused to police, the accused disclosed what his statement had been - It was inculpatory and the judge indicated that the accused was automatically guilty in the mind of the court - The judge later said that he could segregate the admission in his mind, if necessary - The accused applied for an order of prohibition on the ground that a mistrial should have been declared after the statements by the trial judge - The Alberta Supreme Court, Trial Division, dismissed the application - The Trial Division stated that such statements by the trial judge during the course of a trial, particularly when the trial judge indicated that he was aware of his duties upon consideration of the evidence, should not be isolated from the totality of what the trial judge said - The Trial Division stated that no injustice would be done in allowing the trial to continue - See paragraphs 2 to 4.

Evidence - Topic 503

Presentation of evidence - Right of counsel to be heard respecting admissibility of evidence - The trial judge ruled a statement by the accused admissible without giving counsel an opportunity to be heard - The accused applied for an order of prohibition to prevent the judge from continuing with the trial - The Alberta Supreme Court, Trial Division, dismissed the application - The Trial Division stated that the failure to hear counsel was at most an error of procedure, which might afford a ground of appeal, but did not constitute a defect, want or excess of jurisdiction to found an order of jurisdiction - See paragraphs 5 to 10.

Cases Noticed:

Felker v. Felker, [1946] O.W.N. 368, consd. [para. 6].

Wilson v. Guthrie (1955), 15 W.W.R.(N.S.) 144, consd. [para. 7].

Counsel:

J.P. Hennessy, for the accused;

E. Coghlan, for the Crown.

This case was heard before McDONALD, J., of the Alberta Supreme Court, Trial Division, Judicial District of Peace River.

On January 20, 1977, McDONALD, J., delivered the following judgment: