Canada Judgment

Supreme Court of Canada

R. v. Anderson

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Source document

01

Holding and result

Because no motion to quash was made and no objection was taken at trial to an information valid on its face, the Court of Appeal erred in entertaining the respondent's claim of nullity raised for the first time on appeal; the appeal is allowed and the conviction restored.

Court disposition

Appeal allowed; judgment of the British Columbia Court of Appeal set aside; conviction restored.

Orders

  • Appeal allowed
  • Judgment of the British Columbia Court of Appeal set aside
  • Conviction of the respondent restored

02

Material facts

Parties

Her Majesty The Queen

Appellant Counsel: B.R.D. Smith

Thomas David Norman Anderson

Respondent Counsel: D.D. Owen-Flood

03

Procedural history

  1. Posture

    Criminal Appeal / Appeal to the Supreme Court of Canada From the British Columbia Court of Appeal

04

Questions and positions

Legal issues

Party arguments

Applicant
The Crown submitted that the information was valid on its face, no motion to quash was made at trial and no objection was taken; therefore the alleged nullity could not be raised for the first time on appeal and the Court of Appeal erred in allowing the respondent's appeal.
Respondent
The respondent argued that the information was vulnerable or null and that his conviction should be set aside on that ground; he first raised the issue in the Court of Appeal by amending his notice of appeal.

05

Court’s reasoning

  1. 01

    Supreme Court of Canada, R. v. Anderson, [1977] 2 S.C.R. 621

    An information that is valid on its face and to which no objection is taken at trial cannot be attacked for the first time on appeal; issues not raised at trial are generally not open to the appellate court.

  2. 02

    Supreme Court of Canada, R. v. Anderson, [1977] 2 S.C.R. 621

    A party wishing to challenge the formal validity of an information must move to quash it at trial; absent such a motion the trial proceeds on the information and its defects are not grounds for collateral attack on appeal.

06

Ratio, limits and disposition

Ratio decidendi

Because no motion to quash was made and no objection was taken at trial to an information valid on its face, the Court of Appeal erred in entertaining the respondent's claim of nullity raised for the first time on appeal; the appeal is allowed and the conviction restored.

Obiter and limits

  • The Court assumed for argument that the information might have been vulnerable but expressly made no finding on that point.
  • The proper remedy for defects in an information is a motion to quash at trial rather than a first attack on appeal.

Court disposition

Appeal allowed; judgment of the British Columbia Court of Appeal set aside; conviction restored.

  • Appeal allowed
  • Judgment of the British Columbia Court of Appeal set aside
  • Conviction of the respondent restored

Source and reliance status

Supreme Court of Canada · 2 March 1977

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Judgment text

The complete available source text.

Source document

Supreme Court of Canada

Judgment· 2 March 1977

[1977] 2 SCR 621

R. v. Anderson Collection Supreme Court Judgments Date 1977-03-02 Report [1977] 2 SCR 621 Judges Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; de Grandpré, Louis-Philippe On appeal from British Columbia Subjects Criminal law Decision Content Supreme Court of Canada R. v. Anderson, [1977] 2 S.C.R. 621 Date: 1977-03-02 Her Majesty The Queen Appellant; and Thomas David Norman Anderson Respondent. 1977: March 2. Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA Criminal law—Information—Alleged nullity first raised in Court of Appeal—Validity of information not open to Court of Appeal. APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing respondent’s appeal against his conviction on a charge of unlawful assault causing bodily harm. Appeal allowed. B.R.D. Smith, for the appellant. D.D. Owen-Flood, for the respondent. The judgment of the Court was delivered orally by THE CHIEF JUSTICE—We are all of the opinion that this appeal should be allowed, the judgment of the British Columbia Court of Appeal should be set aside and the conviction restored. Assuming that, as a result of the evidence, the information on which the accused Anderson was tried was vulnerable—and we make no finding on this point—no motion was made to quash the information, and the issue of its alleged nullity was only raised for the first time in the Court of Appeal and by an amendment to the notice of appeal. The trial was conducted and completed upon an information valid on its face to which no objection was taken. We do not think that the validity of the information was open to consideration by the Court of Appeal in these circumstances. Judgment accordingly. Solicitors for the appellant: Pearlman & Lindholm, Victoria. Solicitors for the respondent: Owen-Flood, Cox & Turnham, Victoria. [1] (1976), 14 N.R. 451.

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Authorities

Authorities used by the court

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

R. v. Anderson, [1977] 2 S.C.R. 621

Case cited

Court of Appeal decision (1976), 14 N.R. 451

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