R. v. L'Henaff (G.), 1999 SKQB 259

• Judge: Gerein, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 29, 1999
• Jurisdiction: Saskatchewan
• Citations: 1999 SKQB 259;(1999), 192 Sask.R. 103 (QB)

R. v. L'Henaff (G.) (1999), 192 Sask.R. 103 (QB)

MLB headnote and full text

Temp. Cite: [2000] Sask.R. TBEd. JA.062

Her Majesty The Queen (respondent) v. Gary L'Henaff (applicant)

(1999 Q.B.C. No. 1279; 1999 SKQB 259)

Indexed As: R. v. L'Henaff (G.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Melfort

Gerein, J.

December 29, 1999.

Summary:

Following a preliminary inquiry, the accused was committed to stand trial on a charge of sexual assault. The committal was subsequently quashed on the basis that the preliminary inquiry judge conducted himself improperly so as to commit jurisdictional error (See 173 Sask.R. 242). The Crown preferred a direct indict­ment charging the accused with the same offence. The accused applied to quash the indictment on the grounds that: (1) it was a nullity, having been laid contrary to s. 577 of the Criminal Code; and (2) it amounted to an abuse of process.

The Saskatchewan Court of Queen's Bench, in a decision reported at 184 Sask.R. 98, dismissed the application.

The accused brought a further application alleging that: (1) the indictment was a nullity because of noncompliance with s. 577 of the Code; (2) the indictment was a nullity because of noncompliance with s. 581(3) of the Code; (3) the Crown failed to pro­vide proper disclosure thereby depriving the accused of his right to make full answer and defence as guaranteed by s. 7 of the Charter; (4) there had been a violation of the ac­cused's right to be tried within a reasonable time as guaranteed by s. 11(b) of the Char­ter. As a remedy, the accused requested that the in­dictment be quashed or stayed.

The Saskatchewan Court of Queen's Bench dismissed the application.

Civil Rights - Topic 3130

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Delay - [See Civil Rights - Topic 3270.03 ].

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Criminal Law - Topic 4505 ].

Civil Rights - Topic 3270.03

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Where indictment pre­ferred - Following a preliminary inquiry, the accused was committed to stand trial on a charge of sexual assault - The com­mittal was quashed - The Crown preferred a direct indict­ment charging the accused with the same offence - The accused argued that there had been a breach of his s. 11(b) Charter right to be tried within a reasonable time - The accused focused on the Crown's delay of approximately three months in filing the direct indictment and giving notice of the same to the accused (pre-charge delay) - He argued that that time period constituted unreasonable delay, taking into account the amount of time that had already passed (three years since the information was first sworn and four years since the complainant was first inter­viewed) - The Saskatchewan Court of Queen's Bench held that the delay in filing and giving notice of the direct indictment was not so unreasonable that it violated the accused's right to be tried within a reason­able time - See paragraphs 22 to 28.

Criminal Law - Topic 4262

Procedure - Indictment - Preferring of indictments - Section 577 of the Criminal Code required the Attorney General or the Deputy Attorney General to consent in writing to the preferring of a direct indict­ment - The Crown preferred a direct in­dictment against the accused - The Deputy Attorney General signed a consent to the indictment - The Deputy Attorney General acknow­ledged that he signed the consent 13 days before the indictment was signed and therefore he could not have been presented with the indictment which was ultimately filed - The accused argued that the indictment was a nullity because s. 577 mandated that the Deputy Attorney Gen­eral consent specifically to the subject indictment - The accused also argued that the indictment was deficient because the document signed by the Deputy Attorney General directed that the consent be endorsed on the "within indictment" - The Saskatchewan Court of Queen's Bench rejected the arguments - See para­graphs 3 to 10.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - A direct indictment charged the accused with sexual assault - The Crown disclosed all of the information in its pos­session - However, the disclosed informa­tion was deficient in several respects, including the fact that it did not contain any reference to what was said during an hour long interview of the complainant by the investigating officer - The accused argued that the disclosure was so inad­equate that he was deprived of his right to make full answer and defence under s. 7 of the Charter and the indictment should be stayed - The Saskatchewan Court of Queen's Bench found no violation of the accused's s. 7 Charter rights - There was no basis to conclude that there had been a deliberate concealing of probative informa­tion so as to hamper the accused in making full answer and defence - See paragraphs 15 to 21.

Criminal Law - Topic 4731

Procedure - Information or indictment - Charge or count - Indictable offences - Form and content - Date and description of offence - The Crown preferred a direct indictment against the accused - The single count in the indictment simply charged the accused with sexual assault - The accused argued that sexual assault could be com­mitted in a variety of ways and that the indictment did not sufficiently describe the circumstances of the offence or identify the transaction - Accordingly, the accused argued that s. 581(3) of the Criminal Code had not been complied with and the indict­ment should be quashed - The Saskatch­ewan Court of Queen's Bench rejected the argument - The charge was sufficiently identified and complied with s. 581(3) - See paragraphs 11 to 13.

Cases Noticed:

Balderstone v. R. et al. (1983), 23 Man.R.(2d) 125; 8 C.C.C.(3d) 532 (C.A.), refd to. [para. 4].

R. v. Moore et al. (1986), 39 Man.R.(2d) 315; 26 C.C.C.(3d) 474 (C.A.), refd to. [para. 4].

R. v. Stolar (1983), 20 Man.R.(2d) 132; 4 C.C.C.(3d) 333 (C.A.), refd to. [para. 4].

R. v. Côté, [1978] 1 S.C.R. 8; 13 N.R. 271, refd to. [para. 12].

R. v. MacLean (1988), 45 C.C.C.(3d) 185 (B.C.C.A.), refd to. [para. 12].

R. v. Milberg et al. (1987), 20 O.A.C. 75; 35 C.C.C.(3d) 45 (C.A.), refd to. [para. 12].

R. v. R.I.C. (1986), 17 O.A.C. 354; 32 C.C.C.(3d) 399 (C.A.), refd to. [para. 12].

R. v. Atatahak (1986), 51 C.R.(3d) 286 (N.W.T.S.C.), refd to. [para. 12].

R. v. German (1989), 77 Sask.R. 310; 51 C.C.C.(3d) 175 (C.A.), refd to. [para. 12].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81: 142 D.L.R.(4th) 595; 112 C.C.C.(3d) 289, refd to. [para. 16].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, refd to. [para. 25].

Counsel:

A. Kapoor, for the accused/applicant;

E. Kalenith, for the Crown/respondent.

This application was heard before Gerein, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Melfort, who delivered the following decision on Decem­ber 29, 1999.