R. v. Allen (H.D.), (1996) 92 O.A.C. 345 (CA)

• Judge: Doherty, Weiler and Moldaver, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 01, 1996
• Jurisdiction: Ontario
• Citations: (1996), 92 O.A.C. 345 (CA);1996 CanLII 4011 (NS CA);1996 CanLII 4011 (ON CA);110 CCC (3d) 331;1 CR (5th) 347;[1996] CarswellOnt 3384;[1996] OJ No 3175 (QL);32 WCB (2d) 163;92 OAC 345

R. v. Allen (H.D.) (1996), 92 O.A.C. 345 (CA)

MLB headnote and full text

Her Majesty The Queen (appellant) v. Hopeton Delaney Allen (respondent)

(C16897)

Indexed As: R. v. Allen (H.D.)

Ontario Court of Appeal

Doherty, Weiler and Moldaver, JJ.A.

September 19, 1996.

Summary:

In 1989 and 1990 the accused was charged with fraud related offences. In 1993 the charges were stayed because of a viol­ation of the accused's right to a trial within a rea­sonable time. The Crown appealed.

The Ontario Court of Appeal allowed the appeal, set aside the stay of proceedings and directed a new trial.

Civil Rights - Topic 3261

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - General - [See Criminal Law - Topic 4905 ].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - What constitutes "within a reasonable time" - In 1989 and 1990 the accused was charged with fraud related offences - In 1993 the charges were stayed because of a violation of the ac­cused's right to a trial within a reasonable time (i.e., because of a six month adjourn­ment of a complex criminal trial during the taking of evidence because of a scarcity of judicial resources) - The Ontario Court of Appeal held that the judge erred in staying proceedings on the basis of the six month adjournment rather than considering the entire time period - The Court of Appeal held that there was no breach of s. 11(b) in this case - See para­graphs 13 to 44.

Criminal Law - Topic 4828

Appeals - Indictable offences - Right of appeal - By Crown - Fraud charges against the accused were stayed by a judge other than the trial judge because of a violation of the accused's right to trial within a reasonable time - The Crown appealed - An issue arose respecting jurisdiction to hear the appeal - The Ontario Court of Appeal held that the judge who granted the stay was a judge of the court in which the accused was being tried and was, therefore, "a trial court" for the purposes of s. 676(1)(c) of the Crimi­nal Code - Since the order directed a stay of proceedings, the Crown had a statutory right of appeal under s. 676(1)(c) - Alter­natively, the trial judge effectively adopted the other judge's ruling and that decision was also reviewable under s. 676(1)(c) - See paragraphs 9, 10.

Criminal Law - Topic 4829

Appeals - Indictable offences - Right of appeal - From an order that stays pro­ceedings on an indictment - [See Crimi­nal Law - Topic 4828 ].

Criminal Law - Topic 4905

Appeals - Indictable offences - Procedure - Record on appeal - Fraud charges against the accused were stayed by a judge other than the trial judge because of a violation of the accused's right to trial within a reasonable time - The Crown appealed and filed transcripts of virtually all proceedings respecting the charges - Defence counsel argued that the Crown was limited to the record which the parties had placed before the judge who granted the stay - The Ontario Court of Appeal rejected this ground of appeal - The court commented that when s. 11(b) of the Charter is in issue, the court has come to expect that full transcripts of the proceed­ings under review will be placed before the court - "A fair assessment of an alleged breach of s. 11(b) is best made after a review of all available transcripts pertaining to the challenged proceedings" See paragraphs 11, 12.

Words and Phrases

Acquittal - The Ontario Court of Appeal discussed the meaning of the word "ac­quittal" in s. 684(4) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraph 45.

Cases Noticed:

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321; 86 C.C.C.(3d) 97, refd to. [para. 10].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183; 33 C.C.C.(3d) 289; 57 C.R.(3d) 289; 39 D.L.R.(4th) 481, refd to. [para. 16].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, appld. [para. 17].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165; 49 C.C.C.(3d) 289; 70 C.R.(3d) 209, refd to. [para. 17].

R. v. Bennett (1991), 46 O.A.C. 99; 64 C.C.C.(3d) 449 (C.A.), affd. (1992), 138 N.R. 388; 54 O.A.C. 350; 74 C.C.C.(3d) 384 (S.C.C.), refd to. [para. 18].

R. v. Hawkins and Morin (1991), 52 O.A.C. 114; 6 O.R.(3d) 724 (C.A.), affd. [1992] 3 S.C.R. 463; 147 N.R. 389; 60 O.A.C. 183; 11 O.R.(3d) 64, refd to. [para. 27].

R. v. Philip (K.) (1993), 60 O.A.C. 391; 80 C.C.C.(3d) 167 (C.A.), refd to. [para. 27].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; [1985] 6 W.W.R. 127; 21 C.C.C.(3d) 7; 20 D.L.R.(4th) 651; 47 C.R.(3d) 193, refd to. [para. 45].

R. v. Gunn, [1982] 1 S.C.R. 522; 44 N.R. 307; 18 Man.R.(2d) 33; 66 C.C.C.(2d) 294, refd to. [para. 46].

R. v. Potvin (R.), [1993] 2 S.C.R. 880; 155 N.R. 241; 66 O.A.C. 81; 83 C.C.C.(3d) 97, refd to. [para. 47].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(b) [para. 15]; sect. 24(1) [para. 9].

Criminal Code, R.S.C. 1985, c. C-46, sect. 676(1)(c) [para. 9]; sect. 686(4) [para. 45].

Supreme Court Act, R.S.C. 1985, c. S-26, sect. 46.1 [para. 46, footnote 3].

Counsel:

David Butt, for the appellant;

Samuel I. Willoughby, for the respondent.

This appeal was heard on August 1, 1996, before Doherty, Weiler and Moldaver, JJ.A., of the Ontario Court of Appeal. The follow­ing decision of the court was delivered by Doherty, J.A., and released on September 19, 1996.