Canada Judgment

Supreme Court of Canada

Atkinson v. R.

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Source document

01

Holding and result

Because no plea was taken after the re‑election permitted by the magistrate, there was no legal trial; therefore the acquittal by the magistrate and the judgment of the Manitoba Court of Appeal were set aside.

Court disposition

Judgment of the Manitoba Court of Appeal and the acquittal by the Magistrate set aside.

Orders

  • Set aside the judgment of the Manitoba Court of Appeal and the acquittal by the Magistrate

02

Material facts

Parties

Joseph John Atkinson

Appellant Counsel: R.G. Carbert; M. Werier

Her Majesty The Queen

Respondent Counsel: S. Froomkin, Q.C.; B.A. MacFarlane

03

Procedural history

  1. Posture

    Criminal Appeal / On Appeal to Supreme Court of Canada

04

Questions and positions

Legal issues

Party arguments

Applicant
The accused argued the proceedings were procedurally defective: the objection to the certificate of analysis should have prevented its admission for lack of notice and, crucially, no plea was taken after the re‑election permitted by the magistrate so there was no valid trial and the acquittal should stand.
Respondent
The Crown argued notice for the certificate was not required at a preliminary inquiry, that the magistrate properly allowed re‑election and conducted proceedings, and that the Court of Appeal correctly allowed the Crown's appeal from the acquittal.

05

Court’s reasoning

  1. 01

    Narcotic Control Act, R.S.C. 1970, c. N‑1; criminal procedure practice

    A preliminary inquiry is not a trial for the purposes of notice requirements for admission of certain forensic certificates.

  2. 02

    Common law criminal procedure principles

    A plea must be taken to constitute a legal trial; absence of a plea after re‑election undermines the validity of the trial and any resultant acquittal or conviction.

06

Ratio, limits and disposition

Ratio decidendi

Because no plea was taken after the re‑election permitted by the magistrate, there was no legal trial; therefore the acquittal by the magistrate and the judgment of the Manitoba Court of Appeal were set aside.

Obiter and limits

  • Dissenting judges recorded disagreement with the majority disposition

Court disposition

Judgment of the Manitoba Court of Appeal and the acquittal by the Magistrate set aside.

  • Set aside the judgment of the Manitoba Court of Appeal and the acquittal by the Magistrate

Source and reliance status

Supreme Court of Canada · 29 November 1977

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Judgment text

The complete available source text.

Source document

Supreme Court of Canada

Judgment· 29 November 1977

[1978] 1 SCR 1018

Atkinson v. R. Collection Supreme Court Judgments Date 1977-11-29 Report [1978] 1 SCR 1018 Judges Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves On appeal from Manitoba Subjects Criminal law Decision Content Supreme Court of Canada Atkinson v. R., [1978] 1 S.C.R. 1018 Date: 1977-11-29 Joseph John Atkinson Appellant; and Her Majesty The Queen Respondent. 1977: November 29. Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA Criminal law—Trial—Procedure—Charge of trafficking in narcotics—Accused electing trial by judge alone—Matter proceeding before Magistrate as preliminary inquiry—Objection by accused to admission of certificate of analysis on ground no notice given—Objection overruled—Notice not required since preliminary inquiry not a trial—Application to re-elect trial before Magistrate granted—Accused acquitted—Crowns appeal allowed by Court of Appeal—Judgment of Court of Appeal and acquittal by Magistrate set aside by Supreme Court—No legal trial since no plea taken after re-election permitted by Magistrate. APPEAL from a judgment of the Court of Appeal for Manitoba[1], allowing an appeal by the Crown from the accused’s acquittal on a charge of trafficking in narcotics contrary to s. 4(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1. Judgment of the Court of Appeal and acquittal by the Magistrate set aside, Laskin C.J. and Pigeon, Beetz and Pratte JJ. dissenting: R.G. Carbert and M. Werier, for the appellant. S. Froomkin, Q.C., and B.A. MacFarlane, for the respondent. The judgment of the Court was delivered orally by THE CHIEF JUSTICE—This Court, the Chief Justice, Pigeon, Beetz and Pratte JJ. dissenting, is of the opinion that since no plea was taken after the re-election permitted by the Magistrate, there was no legal trial and hence the judgment of the [Page 1019] Manitoba Court of Appeal and the acquittal by the Magistrate are set aside. Judgment accordingly. Solicitors for the appellant: Norton, Schwartz, Weinberg, Winnipeg. Solicitor for the respondent: S.M. Froomkin, Ottawa. [1] (1976), 32 C.C.C. (2d) 361, 36 C.R.N.S. 255.

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

(1976) 32 C.C.C. (2d) 361, 36 C.R.N.S. 255

Case cited

Narcotic Control Act, R.S.C. 1970, c. N-1, s. 4(1)

Legislation

Legislation referenced in the available case record.

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