Canadian National Transportation Ltd. and Canadian National Railway Co. v. Alberta Provincial Court and Canada, (1984) 55 A.R. 229 (QB)

• Judge: McFadyen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 26, 1984
• Citations: (1984), 55 A.R. 229 (QB)

CN Transportation v. Alta. Provincial Ct. (1984), 55 A.R. 229 (QB)

MLB headnote and full text

Canadian National Transportation Limited and Canadian National Railway Company v. Alberta Provincial Court and Canada, Attorney General of

(8401-1088C3)

Indexed As: Canadian National Transportation Ltd. and Canadian National Railway Co. v. Alberta Provincial Court and Canada

Alberta Court of Queen's Bench

Judicial District of Calgary

McFadyen, J.

June 26, 1984.

Summary:

The accused were charged in 1979 under s. 32(1)(c) of the Combines Investigation Act. The investigation began in 1968. The preliminary inquiry was adjourned to October 1, 1980. Before preliminary, the accused applied for prohibition to prevent the Provincial Court from proceeding with the charge. The clerk of the Provincial Court, although not required to, forwarded the record and the information to the Court of Queen's Bench. The accused appeared on October 1, 1980. The accused and the Crown sought an adjournment until the prohibition application was resolved. The Provincial Court judge refused to adjourn the proceedings, holding that he had no jurisdiction to do anything because of the prohibition application and because the information was not before him. The accused applied for prohibition to prohibit the Provincial Court from proceeding with the charge on the ground that the inordinate delay in laying the information (1968 to 1979) denied the accused's right to a speedy trial under s. 11(b) of the Canadian Charter of Rights and Freedoms, the delay infringed the accused's rights under s. 7 of the Charter and the delay constituted an abuse of process.

The Alberta Court of Queen's Bench allowed the application, because the Provincial Court judge's failure to do anything on October 1, 1980 constituted a loss of jurisdiction over the information. The court stated that the information was to be treated as if it was never laid. The court also held that there was no denial of the accused's Charter rights or any abuse of process.

Civil Rights - Topic 3265

Trials, due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitutes - The accused was investigated under the Combines Investigation Act starting in 1968 - Charges were laid in 1979 - The Alberta Court of Queen's Bench held that the accused's right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms was not denied, because it was not clear that the Crown had sufficient evidence to charge the accused before they did - The court also held that a pre-information delay was not to be considered in determining whether the accused's rights were denied - See paragraphs 19 to 38.

Civil Rights - Topic 3265

Trials, due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitutes - The Alberta Court of Queen's Bench stated that whether an accused was tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms depended upon the length of the delay, the Crown's justification for the delay, the accused's assertion of his rights and prejudice to the accused - See paragraph 20.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - S. 7 - The accused was investigated under the Combines Investigation Act starting in 1968 - Charges were laid in 1979 - The Alberta Court of Queen's Bench held that the accused's rights under s. 7 of the Charter had not been denied, because the pre-information delay was not to be considered in determining whether the accused's rights under s. 7 had been denied - See paragraphs 39 to 46.

Criminal Law - Topic 253

Abuse of process - Oppressive or other conduct constituting abuse of process - The accused was investigated under the Combines Investigation Act starting in 1968 - Charges were laid in 1979 - The Alberta Court of Queen's Bench held that the lengthy pre-trial delay did not constitute an abuse of process - See paragraph 40.

Criminal Law - Topic 2946

Jurisdiction - Loss or suspension of jurisdiction - Failure of court to proceed on adjournment or trial - The accused appeared for preliminary on October 1, 1980 - The trial judge, in the errant belief that his jurisdiction was suspended because of a prior application for prohibition by the accused, refused to adjourn the trial at the request of both counsel or do anything else with the information - The Alberta Court of Queen's Bench held that the trial judge's failure to do anything resulted in a loss of jurisdiction over the information - See paragraphs 1 to 14.

Cases Noticed:

Canadian Pacific Transport Limited and Paulley v. Alberta Provincial Court and Canada, Attorney General of (1984), 55 A.R. 199, ref'd to. [para. 14].

R. v. Cameron (1982), 39 A.R. 194; 70 C.C.C.(2d) 532, appld. [para. 20].

R. v. H.W. Corkum Construction Co. Ltd. (1983), 57 N.S.R.(2d) 241; 120 A.P.R. 241; 150 D.L.R.(3d) 555, not folld. [para. 25].

R. v. Dahlem (1983), 25 Sask.R. 10, not folld. [para. 25].

R. v. Boire et al. (1983), 36 C.R.(3d) 364 (Que. S.C.), not folld. [para. 25].

R. v. Atwood (1983), 60 N.S.R.(2d) 245; 128 A.P.R. 245, not folld. [para. 25].

R. v. Rourke, [1978] 1 S.C.R. 1021; 16 N.R. 181; 35 C.C.C.(2d) 129, folld. [para. 27].

R. v. Belton (1983), 19 Man.R.(2d) 132; 3 C.C.C.(3d) 427 (Man. C.A.), ref'd to. [para. 27].

R. v. Boron (1983), 8 C.C.C.(3d) 25, ref'd to. [para. 27].

R. v. Antoine (1983), 5 C.C.C.(3d) 97 (Ont. C.A.), ref'd to. [para. 27].

R. v. Thompson (1983), 8 C.C.C.(3d) 127, ref'd to. [para. 27].

R. v. Dennis, Kubin and Frank (1984), 48 A.R 48, ref'd to. [para. 27].

Re Balderstone et al. and the Queen (1982), 19 Man.R.(2d) 321; 2 C.C.C.(3d) 37 (Man. Q.B.), ref'd to. [para. 27].

R. v. Hynes (1984), 54 A.R. 354, ref'd to. [para. 27].

R. v. Zaprowski (1982), 18 Man.R.(2d) 247, ref'd to. [para. 27].

Re Kott v. R. (1983), 7 C.C.C.(3d) 317, ref'd to. [para. 27].

R. v. Sjoden (1983), 48 A.R. 140, dist. [para. 35].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 40]; sect. 11(b) [para. 19].

Counsel:

R.W. Lusk, for the applicants;

D.A. McGillivray, for the respondent.

This application was heard before McFadyen, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on June 26, 1984.