The King v. Balciunas, [1943] SCR 317

Supreme Court of Canada

The King v. Balciunas, [1943] S.C.R. 317

Date: 1943-04-02

His Majesty The King (Plaintiff) Appellant;

and

Andrew Balciunas (Defendant) Respondent.

1943: February 23; 1943: April 2.

Present: Duff C.J. and Rinfret, Davis, Kerwin and Hudson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Speedy trial before County Court Judge—Criminal Code, Part XVIII—One trial on three charges set forth on single charge sheet—Improper proceeding—New trial.

[Page 318]

Three separate informations were laid against respondent. He was committed for trial on all three. A single charge sheet setting forth three charges was prepared by the Crown Prosecutor, and on this the respondent was arraigned and elected to be tried speedily under Part XVIII of the Criminal Code. There was one trial on all three charges before the County Court Judge and respondent was convicted on each charge.

Held (affirming judgment of the Court of Appeal for Ontario, [1942] O.W.N. 503; [1942] 4 D.L.R. 511): The conviction should be set aside and a new trial held; it was improper to try the three charges together. Sec. 856 of the Criminal Code (allowing joinder of counts in the same indictment) cannot be read into Part XVIII.

APPEAL by the Attorney-General for the Province of Ontario, pursuant to s. 1025 of the Criminal Code and by leave granted by a Judge of this Court, from the judgment of the Court of Appeal for Ontario^[1], allowing the appeal of the present respondent from his conviction by His Honour Judge Parker in the County Court Judges’ Criminal Court of the County of York, exercising jurisdiction under Part XVIII of the Criminal Code, on each of three charges as follows: (1) of receiving certain wrist-watches and wrist-watch bands, theretofore stolen, knowing the same to have been stolen; (2) of retaining in his possession the aforesaid property, theretofore stolen, knowing the same to have been stolen; and (3) of retaining in his possession a certain other wrist-watch, theretofore stolen, knowing the same to have been stolen. All three charges were tried together. The Court of Appeal for Ontario quashed the conviction and ordered a new trial.

W.B. Common K.C. for the appellant.

W.J.P. Jenner for the respondent.

(At the conclusion of the argument for the appellant, counsel for the respondent was not called upon; judgment was reserved, and was delivered later.)

THE COURT.—This is an appeal by the Attorney-General from a judgment of the Court of Appeal of Ontario setting aside a conviction of Balciunas and directing a new trial.

[Page 319]

The point involved is a short one and, at the conclusion of a very complete argument by Mr. Common on behalf of the Attorney-General, the Court intimated that it was unnecessary to hear counsel for the accused.

Three separate informations were laid against Balciunas. He was committed for trial on all three. A single charge sheet setting forth the three charges was prepared by the Crown Prosecutor and on this the accused was arraigned and elected to be tried speedily under Part XVIII of the Criminal Code.

There was one trial on all three charges before the County Court Judge and Balciunas was convicted on each charge.

On appeal to the Court of Appeal, this conviction was set aside and a new trial directed on the ground that it was improper to try the three separate charges together, the point being that, although there was authority in the Criminal Code to include in an indictment a number of separate charges, this was not the case under the provisions of Part XVIII.

Under section 856 of the Criminal Code:

Any number of counts for any offences whatever may be joined in the same indictment, and shall be distinguished in the manner shown in form 63, or to the like effect: Provided that to a count charging murder no count charging any offence other than murder shall be joined.

The trial judge has a discretion to direct a trial upon any one or more of these counts separately.

There is no special provision in Part XVIII and a careful reading of the provisions of this Part as they now stand does not, in our opinion, justify the contention of the Crown that section 856 can be read into it.

We think that the Court of Appeal was right and that each charge should be tried separately. This may incur what may seem to be unnecessary expense in many cases, but the only remedy, in our opinion, is by way of amendment to the Criminal Code.

Appeal dismissed.

Solicitor for the appellant: C.L. Snyder.

Solicitors for the respondent: Jenner & Brunt.