R. v. Leibel (R.J.), 2000 SKQB 565

• Judge: Smith, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: December 12, 2000
• Jurisdiction: Saskatchewan
• Citations: 2000 SKQB 565;(2000), 202 Sask.R. 206 (QB)

R. v. Leibel (R.J.) (2000), 202 Sask.R. 206 (QB)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. FE.018

Her Majesty The Queen v. Richard Joseph Leibel

(1998 Q.B.G. No. 12; 2000 SKQB 565)

Indexed As: R. v. Leibel (R.J.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Smith, J.

December 12, 2000.

Summary:

Count 1 of an indictment alleged that the accused defrauded International Capital Corporation of money in excess of $1,000, contrary to s. 380(1)(a) of the Criminal Code, by one or more of the ways set out in subparagraphs (a) to (j) of the indictment. The accused applied for: (1) an order pur­suant to s. 581(1) of the Criminal Code quashing count 1 of the indictment as amended on the ground that it applied to more than one single transaction; (2) an order pursuant to ss. 7 and 24(1) of the Charter and the common law doctrine of abuse of process that portions of the in­dictment as amended be quashed or stayed on the basis of the judgment of Klebuc, J. in the trial of a co-accused, Schafer; and, al­ternatively, (3) an order staying the proceed­ings on the grounds of unreasonable delay in bringing the accused to trial.

The Saskatchewan Court of Queen's Bench dismissed the application to quash count 1 on the basis that it charged more than one transaction. The application to stay proceed­ings on the basis of findings made by Kle­buc, J., in the Schafer trial was allowed in part and the Crown's proceedings in relation to the particulars charged in subparagraphs (b) and (j) of the indictment were stayed on the ground that to allow the Crown to pro­ceed with those allegations would constitute an abuse of process. The application for a stay of proceedings on the ground of delay was dismissed.

Editor's Note: For the decision rendered with respect to the co-accused Schafer see 195 Sask.R. 161.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The accused was charged with fraud by one or more of the ways set out in sub­paragraphs (a) to (j) of count 1 of the indictment - The accused applied for an order pursuant to ss. 7 and 24(1) of the Charter and the common law doctrine of abuse of process that portions of the in­dictment be quashed or stayed on the basis of the judgment of Klebuc, J., in the trial of the co-accused, Schafer - The accused referred to an "understanding" with the Crown that the charges against him would be reviewed by the Crown in light of any findings made in the Schafer case - The accused also argued that certain of the express findings in the Schafer trial raised issues of res judicata or issue estoppel in relation to the matters alleged against the accused - The Saskatchewan Court of Queen's Bench held that a finding of guilt against the accused in relation to the al­legations in subparagraphs (b) and (j) of the indictment would be inconsistent with the findings of Klebuc, J., in the Schafer trial and that it would be an abuse of process for the Crown to pursue those allegations - The court stayed the proceed­ings in relation to those two subparagraphs - See paragraphs 10 to 56.

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 with defrauding International Capital Corporation of money in excess of $1,000 - The original information was sworn over four years earlier and the in­vestigation and allegations against the accused were matters of public knowledge for several years prior to that - The ac­cused applied for a stay of proceedings on the ground of unreasonable delay in bring­ing the matter to trial (Charter, s. 11(b)) - The Saskatchewan Court of Queen's Bench dismissed the application - The court held that there had not been unreasonable delay in light of the complexity of the charges, the reasons for the delay and the agree­ment by the accused not to object to cer­tain periods of delay - The court also considered that the pre-charge investigation was conducted reasonably and efficiently given the difficulties encountered - See paragraphs 57 to 64.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 253

Abuse of process - What constitutes - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 4486

Procedure - Trial - Stay of proceedings - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 4735.2

Procedure - Information or indictment - Charge or count - Indictable offences - Form and content - Requirement of one count for each transaction - Count 1 of an indictment alleged that the accused de­frauded International Capital Corporation (ICC) of money in excess of $1,000 by one or more of the ways set out in sub­paragraphs (a) to (j) of the indictment - The accused applied for an order pursuant to s. 581(1) of the Criminal Code to quash count 1 on the ground that it applied to more than one single transaction - The Saskatchewan Court of Queen's Bench dismissed the application, holding that count 1 did not allege more than one "transaction" within the meaning of s. 581(1), but rather particularized in the alternative various ways in which the accused was alleged to have defrauded the investors of ICC - The court stated that the word "transaction" in s. 581(1) was to be interpreted broadly and flexibly, and that a single "transaction" could include a number of acts or incidents occurring over a period of time - See paragraphs 1 to 9.

Cases Noticed:

R. v. Hulan, [1970] 1 C.C.C. 36 (Ont. C.A.), refd to. [para. 5].

R. v. Canavan and Busby, [1970] 5 C.C.C. 15 (Ont. C.A.), refd to. [para. 5].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81; 112 C.C.C.(3d) 289, refd to. [para. 46].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272; 96 C.C.C.(3d) 225, refd to. [para. 46].

R. v. Elijah, [1989] O.J. No. 2353 (Dist. Ct.), refd to. [para. 46].

R. v. MacDonnell (F.E.), [1997] 1 S.C.R. 305; 210 N.R. 318; 158 N.S.R.(2d) 1; 466 A.P.R. 1, refd to. [para. 46].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161; 97 C.C.C.(3d) 385, refd to. [para. 46].

R. v. L.B.D. (1995), 126 Sask.R. 95 (Q.B.), refd to. [para. 46].

Bomac Construction Ltd. et al. v. Steven­son et al. (1986), 48 Sask.R. 62 (C.A.), refd to. [para. 51].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 581(1) [para. 2].

Counsel:

J.A. Plemel, for the Crown;

A.A. Fox, Q.C., and J.N. Korpan, for the accused.

This application was heard before Smith, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following fiat on December 12, 2000.