Neville v. R., [1981] 2 SCR 434

Supreme Court of Canada

Neville v. R., [1981] 2 S.C.R. 434

Date: 1981-10-06

Richard Patrick Neville Appellant;

and

Sidney Ferguson, on behalf of Her Majesty The Queen Respondent.

1981: June 23; 1981: October 6.

Present: Martland, Ritchie, Dickson, Beetz, Estey, McIntyre and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK

Criminal law—Summary conviction offence—Information defective because of multiplicity—On mandamus, trial ordered to proceed, with variation on appeal, that Crown elect charges to be dealt with—Game Act, R.S.N.B. 1973, c. G-1, s. 23(a)—Summary Convictions Act, R.S.N.B. 1973, c. S-15.

On application for mandamus arising from the quashing of an information for multiplicity in a summary conviction matter, the Court of Queen’s Bench ordered the provincial court to proceed with the trial and to adjudicate on the merits of the information. The Court of Appeal dismissed an appeal but varied the order to permit the Crown Prosecutor to elect the charges in the information to be proceeded with, provided that the information could be amended without injustice to the appellant. Appellant appealed that decision.

Held: The appeal should be dismissed.

There was nothing wrong in the order made by the Court of Appeal; if not the only way, it was one of the ways to deal with the practicalities of the case. The endorsement of the reasons of the Court of Appeal dismissing the appeal was predicated on there being no express prohibition in New Brunswick’s Summary Convictions Act against an information charging more than one offence.

Archer v. The Queen, [1955] S.C.R. 33, distinguished.

APPEAL from a decision of the Court of Appeal of New Brunswick[1], dismissing an appeal from an order of the Court of Queen’s Bench and varying that order requiring the Provincial Court Judge to proceed to trial and adjudicate on the

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merits of the information. Appeal dismissed.

Camille Vautour, for the appellant.

Graham Sleeth, for the respondent.

The judgment of the Court was delivered by

LAMER J.—Appellant, one Richard Patrick Neville, was charged in the Provincial Court in New Brunswick with a breach of the Game Act of that Province, R.S.N.B. 1973, c. G-1, s. 23(a), a summary conviction offence governed by the Summary Convictions Act, R.S.N.B. 1973, c. S-15. The Provincial Court Judge quashed the information as being void because of multiplicity.

The Court of Queen’s Bench, pursuant to an application by informant, issued an order of mandamus requiring the Provincial Court Judge to proceed to trial and adjudicate upon the merits of the information.

Neville appealed to the Court of Appeal for New Brunswick. That Court dismissed the appeal but varied the order of the Queen’s Bench Justice to read as follows:

An order of mandamus will issue requiring His Honour Judge Sirois to give the Crown Prosecutor an election as to which of the charges contained in the information sworn November 23, 1978 charging the appellant with offences against s. 23(a) of the Game Act he wishes to proceed upon, and provided the Crown Prosecutor makes such an election and the trial judge finds the information can be amended accordingly without injustice to the appellant herein, the trial Judge shall proceed with the trial on the amended information.

Neville is now appealing to this Court from that decision.

I am of the view that for the reasons given in the Court of Appeal by Chief Justice Hughes, Richard Patrick Neville’s appeal was properly dismissed. I find nothing wrong with the order made by that Court to the Provincial Court Judge; if not the only way, it was one of the ways to deal with the practicalities of the case at bar.

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Though Chief Justice Hughes has canvassed the question as thoroughly as need be, I should nevertheless like to add one comment.

This endorsement of Chief Justice Hughes’ reasons is predicated upon the fact that there is no express prohibition in the New Brunswick Summary Convictions Act against an information charging more than one offence.

Appellant seeks support in this Court’s decision in Archer v. The Queen[2]. In that case, the effect of multiplicity on the charge’s validity was considered in the light of s. 710(3) of the Criminal Code, as that section read at the time, which applied to the proceedings by virtue of subs. (1) of s. 3 of The Summary Convictions Act, R.S.O. 1950, c. 379; s. 710(3) read as follows:

710. …

3. Every complaint shall be for one matter of complaint only, and not for two or more matters of complaint, and every information shall be for one offence only, and not for two or more offences.

I would dismiss this appeal. There should be no order as to costs.

Appeal dismissed.

Solicitors for the appellant: Vautour, Richard and Associates, Richibucto.

Solicitor for the respondent: Graham J. Sleeth, Moncton.