R. v. Till (1984), 30 Sask.R. 261 (CA)
MLB headnote and full text
R. v. Till
(No. 935)
Indexed As: R. v. Till
Saskatchewan Court of Appeal
Woods, Tallis and Vancise, JJ.A.
February 21, 1984.
Summary:
An accused was committed for trial on a charge of possession of a narcotic for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act. The Crown then preferred an indictment in open court against the accused pursuant to s. 507 of the Criminal Code of Canada. The accused applied to quash the committal order and the indictment.
The Saskatchewan Court of Queen’s Bench, in a decision unreported in this series of reports, allowed the application. The court held that the accused was wrongly committed for trial because the Crown relied on the presumption in s. 8 of the Narcotic Control Act (since declared constitutionally invalid); the court quashed the committal order and the indictment. The Crown appealed.
The Saskatchewan Court of Appeal allowed the appeal and restored the committal order and the indictment.
Civil Rights – Topic 4905
Presumption of innocence – When applicable – Preliminary inquiry – The Saskatchewan Court of Appeal held that s. 11(d) of the Canadian Charter of Rights and Freedoms, respecting the right to be presumed innocent, did not apply to a preliminary inquiry because the presiding judge did not determine the guilt or innocence of the accused – See paragraph 12.
Criminal Law – Topic 3602
Preliminary inquiry – Adjudication and review – Evidence required for committal – The accused was committed for trial for possession of a narcotic for the purpose of trafficking – The Crown had relied on the presumption in s. 8 of the Narcotic Control Act, which was later declared constitutionally invalid – The Saskatchewan Court of Appeal upheld the committal order regardless of reliance on the invalid presumption, where there was still evidence from which the requisite intent or guilty knowledge could be inferred – See paragraph 9.
Criminal Law – Topic 3604
Preliminary inquiry – Adjudication and review – Judicial review of committal order – Grounds – The accused was committed on a charge of possession of a narcotic for the purpose of trafficking – The committal followed a preliminary inquiry in which the Crown relied on the presumption in s. 8 of the Narcotic Control Act (that proof of possession presumed an intention to traffic) – The accused felt the committal should be quashed, because s. 8 was since declared constitutionally invalid – The Saskatchewan Court of Appeal disagreed, where there was evidence, apart from the invalid presumption, from which the requisite intent or guilty knowledge could be inferred – See paragraph 9.
Criminal Law – Topic 3604
Preliminary inquiry – Adjudication and review – Judicial review of committal order – Grounds – The Saskatchewan Court of Appeal held that the presiding judge at a preliminary inquiry who applied the wrong test to commit an accused for trial, did not commit a jurisdictional error – The court held that error of jurisdiction was the only ground for quashing the committal order – See paragraph 13.
Criminal Law – Topic 3604
Preliminary inquiry – Adjudication and review – Judicial review of committal order – Grounds – The Crown called only two witnesses at a preliminary inquiry, while the bulk of its case, including 11 more witnesses, it apparently intended to call at trial – The accused sought to quash the committal order because the lack of opportunity to cross-examine the additional witnesses denied him a fair trial as guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms – The Saskatchewan Court of Appeal upheld the committal because s. 11(d) was inapplicable and the right to cross-examine the additional witnesses at trial remained – See paragraphs 10 to 12.
Criminal Law – Topic 3606
Preliminary inquiry – Adjudication and review – Judicial review of committal order – Time for – An accused was committed for trial and then indicted under s. 507 of the Criminal Code of Canada – The Saskatchewan Court of Appeal held that once the indictment was preferred, the accused could move to quash the indictment but could no longer attack the validity of the committal order by certiorari – See paragraphs 7 to 8.
Criminal Law – Topic 3706
Preliminary inquiry – Procedure – Pleas or defences – Charter of Rights – The Saskatchewan Court of Appeal held that s. 11(d) of the Canadian Charter of Rights and Freedoms, respecting the right to be presumed innocent, did not apply to a preliminary inquiry because the presiding judge did not determine the guilt or innocence of the accused – See paragraph 12.
Criminal Law – Topic 4435
Procedure – Verdicts – Discharges and dismissals – Dismissal – General – The Saskatchewan Court of Appeal held that the quashing of an indictment was tantamount to an acquittal – See paragraph 4.
Criminal Law – Topic 4925
Appeals – Indictable offences – Appeal to a court of appeal – Appeal from certiorari – The Saskatchewan Court of Appeal held that the Crown had a right of appeal from a judgment quashing a committal order on certiorari – See paragraph 5.
Criminal Law – Topic 4975
Appeals – Indictable offences – Powers of court of appeal – Appeal from an acquittal – “Judgment or verdict of acquittal” – What constitutes – The Saskatchewan Court of Appeal held that the quashing of an indictment was tantamount to an acquittal and therefore appealable by the Crown pursuant to s. 605(1) of the Criminal Code of Canada – See paragraph 4.
Cases Noticed:
R. v. Vermette (No. 5) (1982), 3 C.C.C.(3d) 36 (Que. C.A.), appld. [para. 4].
R. v. Belton (1982), 19 Man.R.(2d) 132; 3 C.C.C.(3d) 427 (Man. C.A.), appld. [para. 4].
R. v. Holmes (1983), 32 C.R.(3d) 322 (Ont. C.A.), appld. [para. 4].
R. v. Hislop et al., 7 C.C.C.(3d) 240 (Ont. C.A.), appld. [para. 4].
R. v. Chabot (1980), 34 N.R. 361; 55 C.C.C.(2d) 385 (S.C.C.), appld. [para. 7].
R. v. Dowson (1983), 49 N.R. 57 (S.C.C.), refd to. [para. 7].
R. v. Oakes (1983), 2 C.C.C.(3d) 339 (Ont. C.A.), not appld. [para. 9].
R. v. Boyle, 5 C.C.C.(3d) 193, appld. [para. 9].
United States of America on behalf of the State of California v. Smith (1984), 2 O.A.C. 1, refd to. [para. 12].
Re Martin, Simard and Desjardins and the Queen (1978), 41 C.C.C.(2d) 308, refd to. [para. 13].
R. v. Forsythe (1980), 32 N.R. 520; 53 C.C.C.(2d) 225 (S.C.C.), refd to. [para. 13].
Re Skogman and the Queen, 66 C.C.C.(2d) 14 (B.C.C.A.), refd to. [para. 13].
Gladstone Petroleum Ltd. and Husky Oil (Alberta) Ltd., [1982] 6 W.W.R. 557; 18 Sask.R. 273 (C.A.), refd to. [para. 15].
Statutes Noticed:
Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 475(1) [paras. 9, 13]; sect. 507 [para. 1].
Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 4(2) [paras. 1 to 2]; sect. 8 [paras. 3, 9].
Canadian Charter of Rights and Freedoms, 1982, sect. 11(d) [paras. 10 to 12].
Counsel:
S.G. Kyba and C. Dean Campbell, for the appellant;
G.M. Kraus and L. Murphy, for the respondent.
This appeal was heard before Woods, Tallis and Vancise, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was delivered by Tallis, J.A., at Regina, Saskatchewan, on February 21, 1984.
