R. v. Reddick, [1991] 1 SCR 1105

R. v. Reddick, [1991] 1 S.C.R. 1105

 

Alexander J. Reddick  Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

Indexed as:  R. v. Reddick

 

File No.:  21625.

 

1991:  May 27.

 

Present:  Sopinka J.

 

motion for an order of reversal of judgment

 

                   Criminal law -- Appeal -- Supreme Court of Canada -- Consent to reversal of judgment -- Accused granted leave to appeal to Supreme Court of Canada -- Crown consenting to reversal of judgment to the extent that a new trial be ordered -- Accused undertaking that only relief sought is a new trial -- Order of reversal of judgment granted -- Supreme Court Act, R.S.C., 1985, c. S-26, s. 70 .

 

Cases Cited

 

                   Referred to:  R. v. McCaul, Bulletin of Proceedings of the Supreme Court of Canada, September 27, 1991, at p. 1995.

 

Statutes and Regulations Cited

 

Supreme Court Act , R.S.C., 1985, c. S‑26 , s. 70 .

 

                   MOTION for an order of reversal of judgment.  Motion granted.

 

                   Henry S. Brown, for the appellant.

 

                   Stephen Grace, for the respondent.

 

//Sopinka J.//

 

                   The following are the reasons for the order delivered by

 

                   Sopinka J. -- This is an application by the appellant for an order of reversal of judgment pursuant to s. 70  of the Supreme Court Act , R.S.C., 1985, c. S-26 .  The Crown has filed a consent dated May 22, 1991, consenting to a reversal of the judgment appealed from herein, to the extent that a new trial be ordered.  The appellant consents and applies for an order of reversal on these terms.

 

                   The appellant was charged with eight counts relating to various offences under the Criminal Code , R.S.C., 1985, c. C-46  (then R.S.C. 1970, c. C-34) and was convicted at trial on all counts except 3 and 8.  The Supreme Court of Nova Scotia, Appeal Division allowed the appeal in part and directed an acquittal on count 1 and a new trial on counts 6 and 7.  The appellant applied for leave to appeal to this Court with respect to counts 2, 4 and 5 on several grounds.  Leave was granted on the following ground only:

 

                   That, subsequent to the date of the trial of this matter in the Nova Scotia Supreme Court and the date of the appeal of this matter before the Nova Scotia Court of Appeal, new evidence has surfaced of such a nature that, had it been known at trial, it could have affected the result of the trial.

 

                   An earlier application was made by the Crown for a similar order but was dismissed for the reasons given in an order dated February 14, 1991, [1991] 1 S.C.R. 297.  The appellant resisted this earlier Crown application.

 

                   The earlier Crown application was dismissed on the basis that a respondent cannot unilaterally terminate the proceedings before this Court under s. 70  of the Supreme Court Act  unless the respondent consents to a reversal of the lower court judgment on terms identical to the relief sought by the appellant in this Court.  In dismissing that application, I pointed out that the appellant could ask this Court for an acquittal and, since he was resisting the application, the respondent could not obtain an order under s. 70 .  The appellant has reconsidered his position and now consents to a new trial and indeed is the applicant for an order under s. 70 .  The notice of appeal filed herein is silent as to the relief sought but the appellant undertakes that the only relief now being sought is a new trial.  In my view, in these circumstances s. 70  applies and an order for a new trial constitutes a reversal of judgment.

 

                   A similar order granting a judgment of reversal was given by McLachlin J. in R. v. McCaul, Bulletin of Proceedings of the Supreme Court of Canada, September 27, 1991, at p. 1995 (judgment rendered October 1, 1990).  In that case, a conviction by the Supreme Court of Nova Scotia, Appeal Division under the Atlantic Fishery Regulations, 1985 was vacated and the matter remitted for retrial.

 

                   It is therefore ordered that the judgment of the Supreme Court of Nova Scotia, Appeal Division in relation to counts 2, 4 and 5 of the original indictment be reversed.  It is further ordered that counts 2, 4 and 5 be remitted to the Supreme Court of Nova Scotia, Trial Division for a new trial.

 

                   Motion granted.

 

                   Solicitors for the appellant:  Gowling, Strathy & Henderson, Ottawa.

 

                   Solicitor for the respondent:  The Attorney General of Nova Scotia, Halifax.