Terlecki v. The Queen, [1985] 2 S.C.R. 483
Henry Terlecki Appellant;
and
Her Majesty The Queen Respondent.
File No.: 17641.
1985: December 12.
Present: Dickson C.J. and Beetz, McIntyre, Chouinard, Lamer, Wilson and La Forest JJ.
on appeal from the court of appeal for alberta
Criminal law -- Procedure -- Kienapple principle -- Driving offences -- Accused found guilty on charges of "impaired driving" (s. 234) and "driving over .08" (s. 236) -- Conviction registered in Provincial Court for "driving over .08" but not for "impaired driving" -- Acquittal entered on appeal to Court of Queen's Bench -- Court of Appeal allowing appeal to extent of remitting matters to Court of Queen's Bench for determination on whether or not conviction for "impaired driving" be entered -- Not entering conviction equivalent to entering stay on charge -- Appeal dismissed and matter remitted to Provincial Court for determination -- Criminal Code, R.S.C. 1970, c. C-34, s. 234.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C-34, s. 234.
APPEAL from a judgment of the Alberta Court of Appeal (1983), 1983 ABCA 87, 4 C.C.C. (3d) 522, allowing an appeal (to the extent of remitting a related but stayed charge for determination by the Court of Queen's Bench) from an acquittal entered by the Court of Queen's Bench on appeal from a conviction entered by Stevenson Prov. Ct. J. Appeal dismissed.
John E. Johnson, for the appellant.
Bruce Duncan, for the respondent.
The judgment of the Court was delivered orally by
- The Chief Justice--We dismiss the appeal. We find no error in the Court of Appeal in construing the trial judge's not registering a conviction on the count of impaired driving under s. 234 of the Criminal Code as equivalent to entering a stay on the charge. We differ from the Court of Appeal only in that we would return the matter back to Stevenson Prov. Ct. J. rather than Moshansky J., the Appeal Court Judge, to consider whether to register a conviction on the s. 234 charge and if so, to impose sentence.
Judgment accordingly.
Solicitors for the appellant: MacPherson and Associates, Calgary.
Solicitor for the respondent: Attorney General for Alberta, Edmonton.