Per Fauteux and Abbott JJ.: The first information, considered as the institution of proceedings by summary conviction, was bad on its , Q face, and the Crown therefore had no right to proceed by way of summary conviction, and the magistrate had no jurisdiction to accept the Crown's election and act upon it by receiving a plea. The election and plea were therefore void and did not constitute a bar to the subsequent proceedings by indictment.
Per Cartwright J., dissenting: In the circumstances of the case, the withdrawal of the first information was tantamount to an acquittal, since counsel for the defence was not raising a technical objection which would be a bar to the magistrate adjudicating upon the charge but was bringing forward a defence in law to which there was no answer. The magistrate should have dismissed the charge and his action in permitting it to be withdrawn was, in the circumstances, the equivalent of a dismissal.
APPEAL from a judgment of the Court of Appeal for Ontario (1) setting aside a conviction.
Appeal allowed. Stanley Smither, for the respondent.
THE CHIEF JUSTICE:-The Crown had the right to change its election before the magistrate and also the right to withdraw the information. Assuming that the respondent raised the plea of autrefois acquit before His Honour Judge Forsyth, there had certainly not been a formal acquittal by the magistrate on January 24, 1956, and in my opinion what occurred at that time did not amount to an acquittal. The first trial must have been concluded by an adjudication, or what amounts thereto: Regina v. Charlesworth (2); Re Rex v. Ecker; Re Rex v. Fry (3).
It has been held that where a trial had commenced and the jury had been discharged and a new one empanelled, the plea could not avail even if the discharge of the first jury had been improper or if a Court of Error or Appeal considered that under the circumstances the first jury should not have been discharged: Regina v. Charlesworth, supra; Winsor v. The Queen (4); Rex v. Lewis (5).
The appeal should be allowed, the conviction restored and the case remitted to the Court of Appeal so that the respondent's application for leave to appeal from the sentence may be dealt with.
(1) [19571 0.W.N..21.
(2) (1861), 1 'B. & S. 460, 121 E.R. 786.
(3) 64 O.L.R. 1, 51 C.C.C. 409, [19291 3 D.L.R. 760.
(4) (166),. L.R. 1 Q.B.. 289, 390.
(5) (1909), 2 Cr. App. R. 180.
Cases cited
- Regina v. Charlesworth Regina v. Charlesworth, supra