R. v. Heaslip, McGale, Stillwell and Tartaglia, (1983) 1 O.A.C. 81 (CA)

• Judge: Martin, Blair and Weatherston, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: July 27, 1983
• Jurisdiction: Ontario
• Citations: (1983), 1 O.A.C. 81 (CA)

R. v. Heaslip (1983), 1 O.A.C. 81 (CA)

MLB headnote and full text

R. v. Heaslip, Mcgale, Stillwell and Tartaglia

Indexed As: R. v. Heaslip, McGale, Stillwell and Tartaglia

Ontario Court of Appeal

Martin, Blair and Weatherston, JJ.A.

November 28, 1983.

Summary:

Seven accused were charged under one indictment with one count of conspiracy to defraud and 40 counts of fraud. One accused was dismissed following a preliminary inquiry. Four accused waived their right to a preliminary and consented to committal for trial. One accused waived the hearing of further evidence at his preliminary after four days and consented to committal. The seventh co-accused was committed for trial after a full preliminary inquiry. In August, 1980, this accused applied for certiorari to quash his committal. The Crown chose not to proceed against his co-accused until his application was decided. The certiorari application was delayed numerous times, with the consent of all parties, before it was finally dismissed in June, 1983. Meanwhile, the other four co-accused who had been committed for trial applied to quash the indictment against them on the ground that the had not been trial within a reasonable time contrary to s. 11(b) of the Canadian Charter of Rights and Freedoms.

In April, 1983 the Ontario County Court, in a decision unreported in this series of reports, allowed the co-accused's application and quashed the indictment. The Crown appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 3262

Trials - Speedy trial - Accused's right to - Waiver of right - The Ontario Court of Appeal held that an accused may waive his constitutional right to be trial within a reasonable time, that mere silence or failure to object did not constitute a waiver, and there was a presumption against waiver of fundamental constitutional rights which must be overcome by the party asserting waiver - See paragraph 30.

Civil Rights - Topic 3262

Trials - Speedy trial - Accused's right to - Waiver of right - Four co-accused waived their preliminary hearing, a fifth waived any further preliminary after four days, and the sixth was committed for trial after a full preliminary - In August, 1980 the sixth sought certiorari to quash his committal - The Crown chose not to proceed against the others pending the results - No accused objected - In October, 1982 the certiorari application was still unresolved, but the co-accused twice consented to an adjournment of their trial, in November, 1982 and january, 1983 - The Ontario Court of Appeal held that the co-accused by their conduct did not waive their right to be tried within a reasonable time prior to November 1982 - See paragraphs 28 to 36.

Civil Rights - Topic 3265

Trials - Speedy trial - Accused's right to - Within a reasonable time - What constitutes - An accused sought certiorari to quash his committal for trial - The Crown desired not to proceed against this co-accused (charged under the same indictment) - The certiorari hearing was delayed for 2.5 years, always with the consent of the accused and Crown and twice with the indictment against the co-accused should be quashed, because they were not tied within a reasonable time contrary to s. 11(b) of the Charter of Rights and Freedoms - The Ontario Court of Appeal held that the delay (six years since the alleged offences occurred and five since the laying of the charges) was unreasonable and was the Crown's fault for failure to expedite the certiorari application - See paragraphs 42 to 50, 61.

Civil Rights - Topic 3265

Trials - Speedy trial - Accused's right to - Within a reasonable time - What constitutes - The Ontario Court of Appeal held that a delay of approximately five years between the laying of the charge and the date upon which the Crown was prepared to set a trial date was prima facie unreasonable - See paragraph 38.

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law alone - The Ontario Court of Appeal held that the issue of whether a trial judge had drawn the correct conclusion, from the facts admitted or found by him, that the right to be tried within a reasonable time contrary to s. 11(b) of the Canadian Charter of Rights and Freedoms was violated, was a question of law alone and therefore appealable by the Crown under s. 605(1)(a) of the Criminal Code of Canada - See paragraphs 18 to 26.

Cases Noticed:

R. v. Antoine (1983), 41 O.R.(2d) 607, appld. [para. 16].

Belyea v. The King; Weinraub v. The King, [1932] S.C.R. 279, refd to. [para. 21].

R. v. Mahoney (1982), 41 N.R. 581; 27 C.R.(3d) 97, refd to. [para. 22].

R. v. Cohen (183), 33 C.R.(3d) 151 (B.C.C.A.), refd to. [para. 23].

R. v. Howard Smith Paper Mills Ltd. et al., [1954] O.R. 543, refd to. [para. 24].

Howard Smith Paper Mills Ltd. et al. v. The Queen, [1957] S.C.R. 403, refd to. [para. 25].

R. v. Korponey (1982), 44 N.R. 103; 65 C.C.C.(2d) 65, appld. [para. 28].

Barker v. Wingo, 407 U.S. 514; 16 C.J.S. 291, dist. [para. 30].

Howell v. State of Florida (1982), 418 So.2d 1164, refd to. [para. 55].

United States of Mann (1968), 291 F. Supp. 268, refd to. [para. 55].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(b) [paras. 20, 24, 26, 31, 41].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 605(1)(a) [para. 18].

Counsel:

David H. Doherty, for the Crown, appellant;

Dennis O'Connor, Q.C., for the respondent, Heaslip;

David E. Ivey, for the respondent, McGale;

No one appearing for the respondents, Stillwell and Tartaglia.

This appeal was heard before Martin, Blair and Weatherston, JJ.A., of the Ontario Court of Appeal, on July 27, 1983. The decision of the Court of Appeal was delivered by Martin, J.A., and released on November 28, 1983.