R. v. Currie, (1984) 2 O.A.C. 78 (CA)

• Judge: Dubin, Zuber and Goodman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 29, 1984
• Jurisdiction: Ontario
• Citations: (1984), 2 O.A.C. 78 (CA)

R. v. Currie (1984), 2 O.A.C. 78 (CA)

MLB headnote and full text

R. v. Currie

Indexed As: R. v. Currie

Ontario Court of Appeal

Dubin, Zuber and Goodman, JJ.A.

February 29, 1984.

Summary:

The accused, who had a serious criminal record of sexual assaults, was convicted in August of indecent assault and loitering at night near a dwelling. The Crown informed the court that it intended to apply for a dangerous offender order under ss. 688, 689, of the Criminal Code of Canada and requested and received a five week adjournment to prepare it. On September 15 the Crown requested further time to give the accused seven days' notice of the application, which both the Crown and the court mistakenly thought was necessary. (No notice of the application was required, but a subsequent seven-day notice of the basis of the application was.) The court adjourned the matter to September 28. On September 24 the Crown informed the court that although the consent of the Attorney General to the application had been obtained and notice to the accused given, the notice was too short. Accordingly, the Crown asked for a further adjournment, which the court refused. On September 28, the Crown attempted to point out the joint error about the notice requirement, but abided by the court's refusal to reconsider. After the accused was sentenced the Crown appealed the dismissal of its dangerous offender application.

The Ontario Court of Appeal dismissed the appeal for differing reasons. Goodman, J.A., was of the opinion that the Crown's application was not dismissed, because there was no hearing of the application; that the court merely refused an adjournment to hear the application, and that an appeal lay under s. 694(2) only from dismissal of the application. He opined that the refusal to grant an adjournment to bring the application was an error, but that certiorari was the appropriate remedy. See paragraphs 1 to 43. Dubin, J.A., was of the opinion that the Crown never made the application and that the refusal of an adjournment to make it was discretionary. See paragraphs 44 to 66. Zuber, J.A., dissenting, was of the opinion that the application was made and that the refusal of an adjournment constituted a dismissal of the application, which was appealable. See paragraphs 67 to 77.

Civil Rights - Topic 3265

Trials - Due process and fair hearings - Speedy trial - Accused's right to - Within a reasonable time - What constitutes - An accused pleaded guilty on August 9 to offences committed on July 16 and 26 - On September 21, the Crown served the accused with a notice of a dangerous offender application returnable on September 28 - The trial judge refused the Crown an adjournment of seven days, fearing that the accused's right to a speedy trial under s. 11(b) of the Canadian Charter of Rights and Freedoms would be infringed - A judge of the Ontario Court of Appeal opined that s. 11(b) would not have been violated by an adjournment - See paragraph 27.

Criminal Law - Topic 6505

Dangerous offenders - Application - General - Criminal Code of Canada, R.S.C. 1970, c. C-34, ss. 688, 689 - The Ontario Court of Appeal discussed the procedure for a dangerous offender application, holding that no notice of the application was required to be given to the accused, but that after the application seven days' written notice of the basis of the application was required to be given to the accused - The court discussed whether the Crown's statement to the court of an intention to make a dangerous offender application and the court's refusal to grant an adjournment to apply constituted the making of an application and its dismissal (The opinions differed).

Criminal Law - Topic 6515

Dangerous offenders - Appeals - The Ontario Court of Appeal held that under s. 694(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34, an appeal lay only from the dismissal of the dangerous offender application - Accordingly, where there was no application or, if there was, no dismissal of it, no appeal lay - See paragraphs 25, 39, 58.

Cases Noticed:

R. v. Antoine, 5 C.C.C.(3d) 97, appld. [para. 27].

R. v. Beason, 7 C.C.C.(3d) 20, appld. [para. 27].

R. v. Galbraith (1972), 5 C.C.C.(2d) 39, dist. [paras. 32, 63].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 11(b) [para. 27].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 688, sect. 689 [para. 7]; sect. 694(2), sect. 694(4) [para. 30].

Counsel:

David Watt, Q.C., for the appellant;

A.J. Child, for the respondent.

This case was heard on October 13, 1983, at Toronto, Ontario, before Dubin, Zuber and Goodman, JJ.A., of the Ontario Court of Appeal.

On February 29, 1984, the judgment of the Court of Appeal was released with the following opinions:

Goodman, J.A. - see paragraphs 1 to 43;

Dubin, J.A. - see paragraphs 44 to 66;

Zuber, J.A., dissenting - see paragraphs 67 to 77.