Wheelton v. Gates
T-1799-90
Dubé J.
21/6/94
3 pp.
Statement of claim for failure to disclose cause of action or as abuse of Court's process -- Plaintiffs seeking damages for wrongful prosecution of Mr. Wheelton -- Mr. Wheelton acquitted by jury on two charges of sexual assault -- Court of Appeal of Yukon Territory allowing Crown's appeal from acquittal, ordering new trial -- Mr. Wheelton convicted on retrial -- Court of Appeal exercising discretion under Criminal Code, s. 686(2) but not ordering third trial as accused already tried twice, serving substantial portion of sentence imposed -- Defendants submitting plaintiffs' case hopeless as clearly reasonable and probable cause for prosecution, otherwise Crown's appeal would not have been successful -- Also claiming Mr. Wheelton not acquitted on second appeal because no evidence against him, but because tried twice and serving substantial portion of sentence imposed -- Motion dismissed -- Although no evidence admissible on application to strike for no reasonable cause of action, it is admissible under abuse of process -- Convictions and dispositions thereof by Yukon Court of Appeal admissible on second branch -- Court of Appeal not disallowing Mr. Wheelton's appeal, but satisfied accused should not have been retried on Count 2, and that miscarriage occurred prejudicing fair trial of Count 1 -- When necessary to make final disposition to make of appeal, quashed convictions and directed verdict of acquittal -- Premature to find plaintiffs' action hopeless and abuse of process -- Without benefit of evidence, not plain and obvious no cause of action -- Plaintiffs ordered to file amended statement of claim -- Federal Court Rules, C.R.C., c. 663, R. 419 -- Criminal Code, R.S.C., 1985, c. C-46.