R. v. Deloli and Fowler, (1985) 33 Man.R.(2d) 262 (CA)

• Judge: Matas, O'Sullivan and Philp, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: May 09, 1985
• Jurisdiction: Manitoba
• Citations: (1985), 33 Man.R.(2d) 262 (CA)

R. v. Deloli (1985), 33 Man.R.(2d) 262 (CA)

MLB headnote and full text

R. v. Deloli and Fowler

(Suit Nos. 165 & 166/84)

Indexed As: R. v. Deloli and Fowler

Manitoba Court of Appeal

Matas, O'Sullivan and Philp, JJ.A.

May 9, 1985.

Summary:

Two accused were charged with break, enter and theft and wilfully setting fire to a building. The accused moved that the charges be dismissed on the ground that their right to be tried within a reasonable time, as guaranteed in s. 11(b) of the Canadian Charter of Rights and Freedoms was denied.

The Manitoba Court of Queen's Bench, in a decision unreported in this series of reports, granted the motion, held that the accused's rights were contravened and dismissed the charges against them. The Crown appealed.

The Manitoba Court of Appeal allowed the appeal. The Court of Appeal held that the accused were tried within a reasonable time.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - Two accused were charged with break, enter and theft and arson (the substantive charges) - Later, the accused and five others were charged with conspiracy - The substantive charges were adjourned until completion of the trial on the conspiracy charge - The accused were remanded on the substantive charges from week to week, with their implied consent - Defence counsel then consented to putting the matter forward six months to avoid the inconvenience of weekly remands - The Manitoba Court of Appeal held that this consent to an adjournment of the substantive charges constituted a waiver of the right to object to the delay when determining whether the accused was tried within a reasonable time - See paragraphs 20 to 21, 28 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 - Two accused appeared for a preliminary inquiry in October 1983 - The charges related to incidents in 1980 and an information sworn in June 1980 - Proceedings on the charges had been adjourned two years pending determination of a complex conspiracy charge against the accused and five others - The Manitoba Court of Appeal held that the three year delay was prima facie excessive, but did not deprive the accused of their right to a speedy trial, considering the accused's consent to several adjournments, the absence of prejudice to the accused and the facts that much of the delay occurred pre- Charter, the accused had competent counsel and failed to assert their rights - See paragraphs 45 to 53.

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 Manitoba Court of Appeal held that a finding of prejudice to the accused was not a condition precedent to a finding that his right to be tried within a reasonable time had been infringed - See paragraph 49.

Criminal Law - Topic 4479

Procedure - Trial - Separate trials for each indictment or information - Two accused were charged with break, enter and theft and arson (the substantive charges) - Shortly thereafter, the accused and five others were charged with conspiracy - The Crown unilaterally (without consulting defence counsel) elected to try the conspiracy charge first - The Manitoba Court of Appeal held that the Crown had the right to proceed separately and to make that decision unilaterally and had no duty to consult defence counsel respecting that decision - See paragraphs 28 to 34.

Cases Noticed:

R. v. Hauser (1979), 46 C.C.C.(2d) 481, refd to. [para. 31].

R. v. Heaslip et al. (1984), 1 O.A.C. 81; 36 C.R.(3d) 309 (Ont. C.A.), appld. [para. 36].

Balderstone v. R. and Attorney General of Manitoba et al. (1983), 19 Man.R.(2d) 321; 2 C.C.C.(3d) 37 (Man. Q.B.); aff'd., [1983] 6 W.W.R. 438; 23 Man.R.(2d) 125 (Man. C.A.), refd to. [para. 43].

R. v. Chartrand (1983), 19 Man.R.(2d) 344 (Man. C.C.), refd to. [para. 43].

R. v. Antoine (1983), 41 O.R.(2d) 607, refd to. [para. 43].

Re Regina and Beason (1984), 7 C.C.C. (3d) 20 (Ont. C.A.), refd to. [para. 43].

Re Regina and Thompson (1984), 8 C.C.C.(3d) 127 (B.C.C.A.), refd to. [para. 43].

Barker v. Wingo (1972), 407 U.S. 514, refd to. [para. 46].

R. v. Catagas (1977), 2 C.R.(3d) 328 (Man. C.A.), refd to. [para. 57].

R. v. Belton (1982), 19 Man.R.(2d) 132; 3 C.C.C.(3d) 427, refd to. [para. 57].

R. v. Borrows (1983), 22 Man.R.(2d) 241; 6 C.C.C.(3d) 54, refd to. [para. 57].

R. v. Rourke, [1978] 1 S.C.R. 1021; [1977] 5 W.W.R. 487; 16 N.R. 181; 35 C.C.C.(2d) 129; 76 D.L.R.(3d) 193; 38 C.R.N.S. 268, refd to. [para. 59].

R. v. Young (1984), 3 O.A.C. 254; 10 C.R.R. 307, refd to. [para. 63].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [paras. 65-66]; sect. 11(b) [paras. 2, 24, 28, 33, 43, 46, 53, 64, 67, 77, 80].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 465(1)(b)(i) [para. 33].

Counsel:

E.P. Schachter, for the appellant;

D.B. Deutscher, for the respondent, Fowler;

J.C. Prober, for the respondent, Deloli.

This appeal was heard before Matas, O'Sullivan and Philp, JJ.A., of the Manitoba Court of Appeal, whose decision was delivered on May 9, 1985, when the following opinions were filed:

Philp, J.A. - see paragraphs 1 to 55;

Matas, J.A. - see paragraphs 56 to 66;

O'Sullivan, J.A. - see paragraphs 67 to 80.