R. v. Kearney (W.J.) (1992), 122 N.B.R.(2d) 282 (CA);
122 R.N.-B.(2e) 282; 306 A.P.R. 282
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Her Majesty the Queen (appellant) v. William J. Kearney (respondent)
(156/91/CA)
Indexed As: R. v. Kearney (W.J.)
New Brunswick Court of Appeal
Angers, Hoyt and Ryan, JJ.A.
February 25, 1992.
Summary:
The accused Crown prosecutor was charged with 13 sex offences. Before plea, he was dismissed by the Deputy Attorney General/Deputy Minister of Justice. The dismissal was leaked to the press and was reported in radio news broadcasts and in the newspapers. The accused applied for a stay on the ground that the firing was an abuse of process and infringed his rights under the Canadian Charter of Rights and Freedoms.
The New Brunswick Court of Queen’s Bench, Trial Division, in a decision reported at 118 N.B.R.(2d) 432; 296 A.P.R. 432, allowed the application and granted a stay. The Crown appealed.
The New Brunswick Court of Appeal, Hoyt, J.A., dissenting, dismissed the appeal.
Civil Rights – Topic 3135
Trials, due process, fundamental justice and fair hearings – Criminal and quasi-criminal proceedings – Right to independent and impartial tribunal – A Crown prosecutor of 23 years standing was charged with 13 sex offenses respecting five females – Before plea the Deputy Attorney General (with the concurrence of the Attorney General/Minister of Justice) fired him, which immediately became public knowledge – The New Brunswick Court of Appeal affirmed the trial court’s decision to stay the proceeding against the accused on the ground that the firing deprived him of his rights to be presumed innocent and to a fair trial, rights that the Attorney General and his Deputy had a duty to understand and uphold – See paragraphs 59 to 76.
Civil Rights – Topic 3157
Trials, due process, fundamental justice and fair hearings – Criminal and quasi-criminal proceedings – Right to just and fair trial – [See
Civil Rights – Topic 3135
].
Civil Rights – Topic 4908
Presumption of innocence – General principles – Circumstances infringing presumption – Dismissal of criminally-charged Crown prosecutor – [See
Civil Rights – Topic 3135
].
Civil Rights – Topic 8374
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – Stay of proceedings – [See
Civil Rights – Topic 3135
].
Criminal Law – Topic 255
Abuse of process – Power of court to prevent abuse of process and grant accused a stay of proceedings – A Crown prosecutor was charged with 13 sex offenses – Before the accused entered a plea, the Deputy Attorney General (with the consent of the Attorney General) fired the accused – The dismissal was leaked to the media – Before the trial commenced, the accused applied for a stay on the grounds of abuse of process as well as contravention of his ss. 7 and 11(d) Charter rights – The New Brunswick Court of Appeal affirmed a stay of proceedings on the ground that the abuse by the province’s two highest justice officials was such that it could be remedied only by a stay of proceedings – See paragraphs 65 to 76.
Crown – Topic 607
Attorney General – Criminal proceedings – Role – [See
Civil Rights – Topic 3135
].
Crown – Topic 607
Attorney General – Criminal proceedings – Role – The New Brunswick Court of Appeal discussed the duties and powers of the office of the Attorney General in regard to the laying of charges and the granting of stays – See paragraphs 38 to 45.
Cases Noticed:
R. v. Vermette, [1988] 1 S.C.R. 985; 84 N.R. 296; 14 Q.A.C. 161, dist. [para. 11].
R. v. Perry (1984), 56 N.B.R.(2d) 361; 146 A.P.R. 361; 14 C.C.C.(3d) 5, refd to. [para. 18].
R. v. Young (1984), 3 O.A.C. 254; 40 C.R.(3d) 289; 40 O.R.(2d) 520; 10 C.R.R. 307; 13 C.C.C.(3d) 1, consd. [para. 18].
R. v. Jewitt, [1985] 2 S.C.R. 128; [1985] 6 W.W.R. 127; 61 N.R. 159; 21 C.C.C.(3d) 7; 47 C.R.(3d) 193; 20 D.L.R.(4th) 651, appld. [para. 18].
R. v. Keyowski, [1988] 1 S.C.R. 657; [1988] 4 W.W.R. 97; 65 Sask.R. 122; 40 C.C.C.(3d) 481; 62 C.R.(3d) 349; 32 C.R.R. 269, refd to. [para. 18].
Director of Public Prosecutions v. Humphrys, [1976] 2 All E.R. 497, refd to. [para. 18].
R. v. Rourke, [1978] 1 S.C.R. 1021; 16 N.R. 181, refd to. [para. 18].
R. v. Cutforth, [1988] 1 W.W.R. 274; 81 A.R. 213; 61 C.R.(3d) 187, refd to. [para. 19].
R. v. Hubbert (1975), 29 C.C.C.(2d) 279, refd to. [para. 29].
Attorney General v. Niagara Falls International Bridge Co. (1873), 20 Gr. 34, consd. [para. 37].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(d), sect. 24(1) [para. 10]; sect. 32(1) [para. 67].
Constitution Act, 1867, sect. 92(14) [para. 36].
Criminal Code, R.S.C. 1985, c. C-46, sect. 2 [para. 37].
Inquiries Act, R.S.N.B. 1973, c. I-11 [para. 8].
Authors and Works Noticed:
Edwards, J.Ll.J., The Charter, Government and the Machinery of Justice (1987), 36 U.N.B.L.J. 41, pp. 48 [para. 41]; 52-53 [para. 70]; 56 [para. 67].
Edwards, J.Ll.J., Ministerial Responsibility for National Security, The Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Sept. 25, 1979 [para. 71].
Edwards. J.Ll.J., The Attorney General and the Charter of Rights, R. Sharpe, ed., Charter Litigation (1987), p. 68 [para. 76].
Gregory, G.F., The Attorney General in Government (1987), 36 U.N.B.L.J. 59, [para. 71].
Lordon, Paul, Crown Law (1991), p. 563 [para. 66].
McKenna, F., Respecting an Inquiry into the Advisability of Separating the Office of the Attorney General from the Office of the Minister of Justice, Jan. 20, 1987 [para. 71].
Counsel:
Michael F. Brown, for the Crown;
C. David Hughes, Q.C., for the respondent.
This appeal was heard on November 13, 1991, by Angers, Hoyt and Ryan, JJ.A., of the New Brunswick Court of Appeal.
The decision of the court was given on February 25, 1992, when the following judgments were filed:
Hoyt, J.A., dissenting – See paragraphs 1 to 33;
Ryan, J.A. (Angers, J.A., concurring) – See paragraphs 34 to 76.
