Price v. Cargin and Cargin

language is capable of that construction, but we find it unnecessary to deal with that question and it is not to be taken to have been in any way passed upon.

HER MAJESTY rtiE uE.iN ............

APPELLANT; AND

PETER KARPINSKI ...................

RESPONDENT. ON APPEAL FROM THE APPEAL ONTARIO Criminal law-Offence triable in two ways-Effect of withdrawal of information-Charge laid more than 6 months after commission of offence-Rights of Crown counsel and accused.

The accused was charged with failing to remain at the scene of an accident, which offence, under s. 221(2) of the Criminal Code, is triable either on indictment or on summary conviction. The offence was alleged to have been committed on March 1955, and the information was laid on January 1956.

When the accused was brought before a magistrate, Crown counsel, on being asked, stated that he wished to proceed summarily. The accused pleaded not guilty and his counsel immediately moved for dismissal of the charge on the ground that the prosecution was barred under s. 693(2), the information having been laid more than 6 months after the commission of the offence. The magistrate permitted counsel for the Crown to withdraw the information and to lay a new one on which a preliminary hearing was held, resulting ultimately in the conviction of the accused.

The Court of Appeal set aside the conviction on the ground that what had taken place before the magistrate amounted to an acquittal on the first information and that the accused was therefore entitled to succeed on a plea of autrefois acquit.

Held (Cartwright J. dissenting): The conviction should be restored. Per Kerwin C.J.: The Crown -had a right to withdraw the information and to change its election.

There was no formal acquittal by the magistrate and what occurred at that time did not amount to an acquittal; to have this effect the first trial must have been concluded by an adjudication or its equivalent.

Per Taschereau J.: The withdrawal of the first information did not amount to an acquittal and the Crown could consequently proceed by indictment as it did. The accused was not placed in jeopardy on the first occasion.

Kerwin C.J. and Taschereau, Cartwright, Fauteux and Abbott JJ.

89511-1J

Apr. 12 S.C.R.