R. v. Hiscock (D.W.), (1999) 179 N.S.R.(2d) 350 (CA)

Judge:Pugsley, Hallett and Bateman, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:October 27, 1999
Jurisdiction:Nova Scotia
Citations:(1999), 179 N.S.R.(2d) 350 (CA);1999 NSCA 126
 
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R. v. Hiscock (D.W.) (1999), 179 N.S.R.(2d) 350 (CA);

 553 A.P.R. 350

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Temp. Cite: [1999] N.S.R.(2d) TBEd. NO.020

Her Majesty The Queen (appellant) v. Derek Wayne Hiscock (respondent)

(C.A.C. No. 154104; 1999 NSCA 126)

Indexed As: R. v. Hiscock (D.W.)

Nova Scotia Court of Appeal

Pugsley, Hallett and Bateman, JJ.A.

October 27, 1999.

Summary:

The accused was charged in April 1997 with sexual assault and unlawful confine­ment. In January 1999, 21 months later, a Provincial Court judge stayed proceedings under s. 24(1) of the Charter on the ground that the accused's right to be tried within a reasonable time under s. 11(b) had been denied. The Crown appealed.

The Nova Scotia Court of Appeal allowed the appeal and remitted the matter for trial.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Waiver of right - [See Civil Rights - Topic 3265 ].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - What constitutes "within a reasonable time" - The accused was charged on April 11, 1997 - He made a s. 276(2) Criminal Code application to intro­duce evidence of sexual activity with the complainant, but addressed it to the wrong judge - Accordingly, the October 6, 1997, trial had to be adjourned to January 23, 1998 - The s. 276 application was allowed, but the judge advised that he would not try the case - Counsel could not persuade the judge to try the case - As of March 19, 1998, counsel knew the judge's reason was because he felt biased - Rather than com­mence a new s. 276 application before another judge, counsel sought mandamus to compel the judge to try the case - Mandamus issued in the absence of bias stated on the record, but the judge still refused to try the case because of bias - The trial was set for January 21, 1999, before another judge (21 months after the charge) - The Nova Scotia Court of Appeal held that the trial judge erred in granting a stay for denial of the accused's right to be tried within a reasonable time - The delay to October 6, 1997, was reasonable - The delay from October 6, 1997 to January 23, 1998 was attributable to the accused (ac­cused's brief sent to wrong judge, not the fault of court staff) - The January 23, 1998, to January 21, 1999, delay was waived or attributable to the accused (should have commenced new s. 276 appli­cation rather than mandamus when he knew the judge felt he was biased) - Fur­ther, there was no prejudice to the accused.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Evidence of prejudice and causes of delay - [See Civil Rights - Topic 3265 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3265 ].

Cases Noticed:

Canada (Minister of Citizenship and Immi­gration) v. Tobiass et al. (1997), 218 N.R. 81; 118 C.C.C.(3d) 443 (S.C.C.), refd to. [para. 42].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 44].

R. v. Askov, Hussey, Melo and Gugliotta, [1989] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 45].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 45].

R. v. Murphy (M.M.) (1998), 160 Nfld. & P.E.I.R. 271; 494 A.P.R. 271 (Nfld. C.A.), refd to. [para. 58].

R. v. Canning (W.J.B.) (1996), 9 O.T.C. 353 (Gen. Div.), refd to. [para. 59].

R. v. McMullin (1989), 90 N.S.R.(2d) 268; 230 A.P.R. 268 (C.A.), refd to. [para. 59].

R. v. Buchholz (1977), 32 C.C.C.(2d) 331 (Ont. C.A.), refd to. [para. 60].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81, refd to. [para. 67].

R. v. Whitehouse (1998), 167 N.S.R.(2d) 58; 502 A.P.R. 58 (T.D.), refd to. [para. 68].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 669.2(1)(a) [para. 57]; sect. 676(1)(c) [para. 40].

Counsel:

William D. Delaney, for the appellant;

Mark R. Donohue, for the respondent.

This appeal was heard on September 28, 1999, before Pugsley, Hallett and Bateman, JJ.A., of the Nova Scotia Court of Appeal.

On October 27, 1999, Pugsley, J.A., delivered the following judgment for the Court of Appeal.

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