Supreme Court of Canada
Khan v. R., [1984] 2 S.C.R. 62
Date: 1984-07-26
Pamela Khan (Plaintiff) Appellant;
and
Her Majesty The Queen (Defendant) Respondent.
File No.: 16992.
1984: June 19; 1984: July 26.
Present: Dickson C.J. and Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Jurisdiction—Procedure—Joinder—Indictable and summary conviction offences—Trial by magistrate elected prior to entering plea on indictable offence—Accused consenting to evidence on both counts being applied to each count—Whether or not jurisdiction to try together separate informations—Criminal Code, R.S.C. 1970, c. C-34, ss. 85, 388(1), 484, 717.
Appellant was charged, in separate informations, with an indictable offence and with a summary conviction offence. She elected trial by magistrate prior to entering a plea on the indictable offence, was arraigned on both counts and entered pleas of not guilty. Both informations were tried together and she was convicted on each. Appellant appealed her convictions and sentences but the Court of Appeal concluded that there was evidence to sustain the convictions and that the sentences were not inappropriate.
Held: The appeal should be allowed.
The trial judge, in light of the principle pronounced by this Court in Phillips and Phillips v. The Queen, was without jurisdiction to try together the separate informations. This case is not distinguishable from that case.
Phillips and Phillips v. The Queen, [1983] 2 S.C.R. 61, followed.
APPEAL from a judgment of the Ontario Court of Appeal dismissing an appeal from convictions and sentences pronounced by J. Murphy P.C.J. Appeal allowed.
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Pamela Khan, appearing on her own behalf.
Brian J. Gover, for the respondent.
The judgment of the Court was delivered by
MCINTYRE J.—The appellant was charged in an information with an indictable offence under s. 85 of the Criminal Code that:
Pamela Khan on or about the 27th day of August, 1981, at the Municipality of Metropolitan Toronto in the Judicial District of York, unlawfully did have in her possession a weapon, to wit: knife for a purpose dangerous to the public peace, contrary to the Criminal Code.
She was also charged in a separate information with an offence punishable on summary conviction under s. 388(1) of the Criminal Code that:
Pamela Khan on or about the 27th day of August, 1981, at the Municipality of Metropolitan Toronto in the Judicial District of York, unlawfully did wilfully damage makeup jars and glasses situate at 24 Madison Avenue, the property of Renee Palisa said damage not to exceed $50.00 in value, contrary to the Criminal Code.
Prior to entering a plea in respect of the information charging the indictable offence of possessing a weapon for a purpose dangerous to the public peace, she elected trial by magistrate, pursuant to s. 484 of the Criminal Code. On September 10, 1981 she was arraigned and entered pleas of ‘not guilty’ to each information. Before evidence was called there occurred the following discussion:
THE COURT: Yes, now prior to starting, Mr. Crown Attorney, which information are you proceeding on?
MR. KAPPY: I have asked her to be arraigned on both. The evidence is very similar with the same witnesses. I am in Your Honour’s hands.
THE COURT: Miss Khan, it’s my understanding from the Crown Attorney that the evidence—you had been arraigned on both charges. Do you wish the evidence on both counts to apply? You do not have to have the evidence apply? You may proceed on one count and then hear evidence on the other count. Do you wish all
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evidence on both charges to be applied to each of the two counts?
THE ACCUSED: (Nods affirmatively.)
THE COURT: Is that yes?
THE ACCUSED: Yes.
THE COURT: Yes. Thank you. All right.
It should be noted that the appellant was not represented by counsel.
The two informations were then tried together, the offences arising out of the same or very closely related events, and the appellant was convicted on both. She was sentenced to a term of nine months’ imprisonment on the indictable offence of possession of a weapon for a purpose dangerous to the public, and to imprisonment for thirty days to be served concurrently for the offence of wilful damage. She has served both sentences. She appealed the convictions and sentences to the Court of Appeal. Her appeals were dismissed on January 25, 1982, the court concluding that there was evidence on which the verdicts could be sustained, and that it had not been shown that the sentences were inappropriate. This appeal was heard and disposed of before the judgment of this Court in Phillips and Phillips v. The Queen, [1983] 2 S.C.R. 61, was released.
Despite the submissions of the Crown to the contrary, I am of the view that this case is not distinguishable from Phillips. Following that case then it is apparent that the trial judge was without jurisdiction to try together the separate informations.
The appeal must therefore be allowed and the convictions quashed. The situation which arises here is made difficult because the appellant whose convictions are now quashed has already served the sentences which were imposed by the trial judge. The convictions are quashed on a technical point which in no way involves consideration of the merits of the case. I would therefore direct a new trial on each information so the merits may be dealt with and, in the event of a conviction, it
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would follow that no further sentence would be imposed, the sentences already having been served.
This, in my opinion, is a proper case in which this Court should make an order under s. 717 of the Criminal Code. Accordingly, I would order that no civil proceedings shall be taken against the magistrate, His Honour Judge J. Murphy, of the Provincial Court (Criminal Division) Judicial District of York, in respect of the convictions made in this case or against any officer who acted under the convictions or under any warrant which may have been issued to enforce them.
Appeal allowed.
Pamela Khan, on her own behalf.
Solicitor for the respondent: The Ministry of the Attorney General, for Ontario Toronto.