R. v. Hunt (H.W.) et al., (2015) 361 Nfld. & P.E.I.R. 193 (NLTD(G))

• Judge: Thompson, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: February 09, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 361 Nfld. & P.E.I.R. 193 (NLTD(G))

R. v. Hunt (H.W.) (2015), 361 Nfld. & P.E.I.R. 193 (NLTD(G));

    1122 A.P.R. 193

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. FE.014

Her Majesty the Queen v. Hubert Walter Hunt, William E. Parsons, William Gary Hillyard and John L. King

(201301G3482; 2015 NLTD(G) 15)

Indexed As: R. v. Hunt (H.W.) et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Thompson, J.

February 9, 2015.

Summary:

The four accused were jointly charged with 16 counts of fraud, one count of conspiracy to commit fraud, one count of falsifying books and documents and one count of circulating a false prospectus. The charges related to the accused's involvement in senior management positions within Hickman Equipment Ltd. in the period prior to the company's declaration of bankruptcy and subsequent dissolution in early 2002. The charges were laid in 2012. The accused applied to have the charges stayed pursuant to ss. 7 and 24(1) of the Charter.

The Newfoundland and Labrador Supreme Court, Trial Division (General), held that the delay was egregious and called the integrity of the justice system into question. The court concluded that the accused had established a breach of their s. 7 Charter rights and entered a stay of proceedings.

Civil Rights - Topic 3130

Trials - Due process, fundamental justice and fair hearings - Delay (Charter, s. 7) - The four accused were jointly charged with 16 counts of fraud, one count of conspiracy to commit fraud, one count of falsifying books and documents and one count of circulating a false prospectus - The charges related to the accused's involvement in senior management positions within Hickman Equipment Ltd. in the period prior to the company's declaration of bankruptcy and subsequent dissolution in early 2002 - The charges were laid in 2012 - The accused applied to have the charges stayed pursuant to ss. 7 and 24(1) of the Charter - The defence position was that some 13 years would have passed from the first complaint in 2002 to the anticipated conclusion of the trial in 2015 - The Newfoundland and Labrador Supreme Court, Trial Division (General), held that the delay was egregious and called the integrity of the justice system into question - In early to mid 2007, the Crown had to be taken as having the justification in hand to warrant the swearing of an Information - The Crown entered upon a slow path of investigation - As well, the Crown had the basis to proceed and chose not to do so without any reason being provided - The court stated that "it offends against society's fundamental sense of justice and now undermines the integrity of judicial process. With that view, it falls to an abuse of process. I conclude that the Applicants have established on the balance of probabilities, a breach of their rights under section 7 of the Charter" - The court entered a stay of proceedings - See paragraphs 78 to 117.

Civil Rights - Topic 3130

Trials - Due process, fundamental justice and fair hearings - Delay (Charter, s. 7) - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that "The Crown urges that the residual discretion of the Court to stay for delay in bringing the accused to trial (pre-trial delay) without proof of prejudice or some form of prosecutorial misconduct or improper motive constituting abuse of process, is not available. The case law as I have reviewed it does not prescribe such for all cases and distinguishes the exercise of discretion in the rare cases where executive action leading up to the laying of charges is offensive to the administration of justice. Inevitably, prejudice of some form, as it exists in this case, is almost always likely to be an offset of the existence of such rare cases but the emphasis then is on the offensive nature of the delay to the constitutional right of an individual to a speedy trial or the misconduct itself overtakes the constitutional principles guaranteeing a fair trial. Specifically, in the context of section 7 of the Charter, in assessing the reasonableness of the delay, prejudice may be assumed. This assumption may be able to be strengthened and supplemented as has been done in this case with the evidence of actual prejudice as advanced and the impact of the delay upon the interests of these four accused" - See paragraph 104.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - [See first Civil Rights - Topic 3130 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See both Civil Rights - Topic 3130 ].

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - [See first Civil Rights - Topic 3130 ].

Criminal Law - Topic 255

General principles - Abuse of process - Power of court - Re prevention and remedies - [See first Civil Rights - Topic 3130 ].

Criminal Law - Topic 4486

Procedure - Trial - Stay of proceedings - [See first Civil Rights - Topic 3130 ].

Criminal Law - Topic 4725

Procedure - Information or indictment - Charge or count - Indictable offences - Laying of charge - Abuse of process - [See first Civil Rights - Topic 3130 ].

Cases Noticed:

R. v. Young (1984), 3 O.A.C. 254; 13 C.C.C.(3d) 1 (C.A.), consd. [para. 63].

R. v. Rourke, [1978] 1 S.C.R. 1021; 16 N.R. 181; 1 W.C.B. 377, refd to. [para. 64].

R. v. Amato, [1982] 2 S.C.R. 418; 42 N.R. 487, refd to. [para. 65].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; [1985] 6 W.W.R. 127, refd to. [para. 69].

R. v. W.G.G. (1989), 76 Nfld. & P.E.I.R. 248; 235 A.P.R. 248 (Nfld. T.D.), refd to. [para. 69].

R. v. Doston (D.) (2008), 277 N.S.R.(2d) 211; 882 A.P.R. 211; 2008 NSSC 417, consd. [para. 71].

R. v. Beason (1983), 43 O.R.(2d) 65 (C.A.), refd to. [para. 73].

R. v. Kalanj; R. v. Pion, [1989] 1 S.C.R. 1594; 96 N.R. 191, refd to. [para. 73].

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, consd. [para. 75].

R. v. Sample (D.) (2002), 315 A.R. 261; 2002 ABQB 57, consd. [para. 105].

R. v. Nixon (O.), [2011] 2 S.C.R. 566; 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 2011 SCC 34, consd. [para. 111].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 113].

R. v. Dolinski, 2014 ONSC 681, consd. [para. 113].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 61]; sect. 24 [para. 62].

Counsel:

Lloyd M. Strickland and Jeffrey A, Summers, for the Crown;

Kimberley R. Horwood, for the first accused;

Randolph J. Piercey, Q.C., for the second accused;

Jonathan E. Noonan, for the third accused;

John D. Brooks, Q.C., for the fourth accused.

This application was heard on December 16 to 18, 2014, at St. John's, N.L., before Thompson, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following decision on February 9, 2015.