R. v. Kearney, [1992] 3 S.C.R. 807

Her Majesty The Queen Appellant

v.

William J. Kearney Respondent

and

The Attorney General of Canada Intervener

Indexed as: R. v. Kearney

File No.: 22916.

1992: December 1.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for new brunswick

Constitutional law ‑‑ Charter of Rights ‑‑ Abuse of process ‑‑ Accused granted stay of proceedings following his dismissal ‑‑ No violation of accused's rights under Canadian Charter of Rights and Freedoms or abuse of process ‑‑ Accused ordered to stand trial.

Cases Cited

Applied: R. v. Vermette, 1988 CanLII 87 (SCC), [1988] 1 S.C.R. 985.

APPEAL from a judgment of the New Brunswick Court of Appeal (1992), 1992 CanLII 4072 (NB CA), 122 N.B.R. (2d) 282, 306 A.P.R. 282, 70 C.C.C. (3d) 507, 13 C.R. (4th) 41, 40 C.C.E.L. 56, dismissing the Crown's appeal from a stay of proceedings granted by the Court of Queen's Bench (1991), 1991 CanLII 2661 (NB QB), 118 N.B.R. (2d) 432, 296 A.P.R. 432, 40 C.C.E.L. 44. Appeal allowed.

Michael F. Brown, for the appellant.

C. David Hughes, Q.C., for the respondent.

Bruce A. MacFarlane, Q.C., and Nancy L. Irving, for the intervener.

Lamer C.J.

The judgment of the Court was delivered orally by

Lamer C.J. ‑‑ We are all of the view that this appeal should be allowed and the respondent be sent back to stand trial. R. v. Vermette, 1988 CanLII 87 (SCC), [1988] 1 S.C.R. 985, governs the appeal. On the facts of this case, we find that there has been no violation of the respondent's Charter rights nor has there been an abuse of process.

The appeal is allowed, the judgments below are set aside and a new trial is ordered.

Judgment accordingly.

Solicitor for the appellant: The Attorney General for Ontario, Toronto.

Solicitors for the respondent: Hughes, Campbell, Fredericton.

Solicitor for the intervener: The Deputy Attorney General of Canada, Ottawa.