R. v. Fitzgerald

R. v. Fitzgerald

Application dismissed: court found no air of reality to allegations of improper Crown motive or prejudice; prosecutorial discretion to elect indictment is entitled to deference; facts (victim aged 14, relationship of trust, evidence of penetration and grooming) supported an indictable election and the prospect of a substantial penitentiary term, thus no abuse of process was made out.

Citation
2013 NSPC 128
Parties
Crown: Her Majesty the Queen; Accused: Terry Leonard George Fitzgerald
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
7 November 2013
Procedural Posture
Criminal / Interlocutory — Defence Application to Quash Crown Election to Proceed by Indictment (abuse of Process)
Outcome
Defence application dismissed; Crown's indictable elections upheld
Legal Topics
Abuse of Process, Election to Proceed by Indictment, Charter S.7, S.24(1) Remedy, Sentencing Principles, Publication Ban S.486.4
Source Language
English
Criminal Law Constitutional Law Prosecutorial Discretion Sexual Offences Law Evidence Law Abuse of Process Election to Proceed by Indictment Charter S.7 +3 more

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Parties

Her Majesty the Queen

Crown

Terry Leonard George Fitzgerald

Accused

Procedural Posture

Criminal / Interlocutory — Defence Application to Quash Crown Election to Proceed by Indictment (abuse of Process)

Legal Issues

  1. 1 Whether the Crown's election to proceed by indictment constitutes an abuse of process
  2. 2 Whether the court should quash the indictable election and impose summary elections under s.24(1) of the Charter
  3. 3 Whether the Crown acted with improper motive or caused prejudice sufficient to violate s.7 of the Charter

Ratio Decidendi

Application dismissed: court found no air of reality to allegations of improper Crown motive or prejudice; prosecutorial discretion to elect indictment is entitled to deference; facts (victim aged 14, relationship of trust, evidence of penetration and grooming) supported an indictable election and the prospect of a substantial penitentiary term, thus no abuse of process was made out.

Court Disposition

Defence application dismissed; Crown's indictable elections upheld

Orders

  • Defence application to quash the Crown's indictable elections is dismissed
  • Order remains in effect under s.486.4 of the Criminal Code prohibiting publication of information that could identify the complainant A.B.