R. v. Rahey, [1987] 1 S.C.R. 588 (1987)
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R. v. Rahey, [1987] 1 S.C.R. 588 (1987)
R. v.
Rahey, [1987] 1 S.C.R. 588Carl R. Rahey Appellant v.Her Majesty The Queen Respondent indexed as: r. v. raheyFile No.: 18906.1986: June 17; 1987: May 14.Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard*, Lamer, Wilson, Le Dain and La Forest JJ.*Chouinard J. took no part in the judgment.on appeal from the nova scotia supreme court, appeal divisionConstitutional law -- Charter of Rights -- Court of competent jurisdiction -- Accused alleging a violation of his Charter right to be tried within reasonable time -- Whether the superior court of a province a court of competent jurisdiction for the purposes of an originating application under s. 24(1) of the Charter -- Canadian Charter of Rights and Freedoms, ss. 11(b), 24(1).Constitutional law -- Charter of Rights -- Trial within a reasonable time -- Trial judge taking eleven months to decide a motion for a directed verdict -- Whether accused's right to be tried within reasonable time infringed -- Appropriate remedy for an infringement of s. 11(b) -- Canadian Charter of Rights and Freedoms, ss. 11(b), 24(1).Following an investigation by the Minister of National Revenue, appellant was charged in September 1981 with six counts of making false returns and one count of wilful evasion pursuant to s. 239(1) of the Income Tax Act, and all his property and assets and those of his associated companies were put into receivership. His trial before a provincial court judge began six months later. The Crown closed its case in November 1982 and, after an adjournment, the defence made a motion for a directed verdict on December 13, 1982. There were then, over a period of eleven months, nineteen adjournments initiated by the trial judge. For nine of those months, appellant raised no objection to the delay. But on September 13, 1983, he wrote to the Crown requesting that it seek a decision from the judge. When the judge ordered further adjournments, he wrote again to the Crown on several occasions alleging a violation of his constitutional rights and demanding the withdrawal of the charges. The requests were refused. Instead, the Crown filed a motion for mandamus. On November 14, 1983, one day prior to the trial judge's decision dismissing the motion for a directed verdict, appellant made an application pursuant to s. 24(1) of the Charter to the Supreme Court of Nova Scotia for an order dismissing the charges. The application was based on an alleged violation of s. 11(b) of the Charter. The Court granted the application. The superior court judge held that the trial judge's delay had seriously prejudiced the appellant by impairing his ability to conduct his defence and to carry on business while under a continuing receivership and concluded that the only appropriate remedy was to dismiss the charges. On appeal, the Court of Appeal set aside the dismissal and directed that the trial proceed. The Court found that the evidence of prejudice was insubstantial and entirely speculative. This appeal is to determine (1) whether the Supreme Court of Nova Scotia was a court of competent jurisdiction for the purposes of an application under s. 24(1) of the Charter; (2) whether appellant's right to be tried under a reasonable time was infringed; and, if so, (3) whether the superior court judge properly exercised her jurisdiction in dismissing the charges because of the unreasonable delay of the trial judge.Held: The appeal should be allowed and a stay of proceedings ordered.(1) Where the trial judge is alleged to be the cause of the violation of the accused's rights under s. 11(b), the superior court is a court of competent jurisdiction for the purposes of an application under s. 24(1) of the Charter.(2)--Section 11(b) of the Charter covers delays during the trial for which the judge is responsible.--In assessing the reasonableness of a delay under s. 11(b), the court may consider the prejudice to the accused including (per Beetz, Estey, McIntyre, Wilson, Le Dain and La Forest JJ.) prejudice to his ability to make full answer and defence and (per Estey, McIntyre, Wilson and La Forest JJ.) the civil consequences of the criminal proceedings.--The accused's consent to the trial judge's adjournment did not constitute a waiver of delay.--The eleven-month delay constituted, in the circumstances of this case, an infringement of the accused's right to be tried within a reasonable time.(3)--A stay is in this case the remedy.--(Per Dickson C.J. and Beetz, Estey, Lamer, Wilson and Le Dain JJ.) A stay of proceedings is the minimum remedy for an infringement of s. 11(b) because (per Dickson C.J. and Estey, Lamer and Wilson JJ.) the court has lost jurisdiction to proceed.--------------------Per Dickson C.J. and Lamer J.: Generally, the court of competent jurisdiction for the purposes of an application under s. 24(1) of the Charter in an extant case is the trial court. While the superior court has concurrent original jurisdiction to hear such an application, it should us...See the full content of this document
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