R. v. Lenny (R.D.) et al., (1997) 213 A.R. 161 (QB)

• Judge: Costigan, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 23, 1997
• Citations: (1997), 213 A.R. 161 (QB)

R. v. Lenny (R.D.) (1997), 213 A.R. 161 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. JA.015

Her Majesty The Queen (respondent) v. Rodney Donald Lenny and Therese Rachael Martel (applicants)

(Action No. 9103-4634-C0)

Indexed As: R. v. Lenny (R.D.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Costigan, J.

December 23, 1997.

Summary:

A foster child received injuries while in the accused's (husband and wife) care and even­tually died. After two trials and two success­ful appeals, the accused were to be tried a third time on charges of assault causing bodily harm and failing to provide the neces­saries of life. The time between the laying of the charge and the anticipated end of the third trial was approximately 7.5 years. The accused applied for a stay of proceedings on the grounds that their s. 7 and 11(b) Charter rights were violated.

The Alberta Court of Queen's Bench dis­missed the application as it related to s. 11(b), but allowed the application as it related to s. 7. The court granted a stay pursuant to s. 24(1) of the Charter.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - A foster child received injuries while in the accused's (husband and wife) care and eventually died - After two trials and two successful appeals, the accused were to be tried a third time for assault causing bodily harm and failing to provide the necessaries of life - There were 33 months between the laying of the charge and the end of the first trial and approximately 7.5 years between the laying of the charge and the anticipated end of the third trial - The Alberta Court of Queen's Bench held that the delay was not unreasonable having regard to the interests that s. 11(b) sought to protect, the explanation for the delay and the prejudice to the applicants - See paragraphs 1 to 230.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Criminal Law - Topic 253 ].

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - A foster child received injuries while in the accused's (husband and wife) care and eventually died - After two trials and two successful appeals, the accused were to be tried a third time for assault causing bodily harm and failing to provide the necessaries of life - There were approximately 7.5 years between the laying of the charge and the anticipated end of the third trial - The Alberta Court of Queen's Bench held that the delay was not unreasonable under s. 11(d) of the Charter, but that a third trial would be an abuse of process under s. 7 - The court granted a stay - The court considered, inter alia, the effect of a third trial on the accused's children.

Cases Noticed:

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1; 12 C.R.(4th) 1; 8 C.R.R.(2d) 193, appld. [para. 9].

R. v. Light (R.C.) and Hull (R.B.) (1993), 21 B.C.A.C. 241; 37 W.A.C. 241; 78 C.C.C.(3d) 221 (C.A.), refd to. [para. 10].

R. v. Holt (1991), 117 A.R. 218; 2 W.A.C. 218 (C.A.), refd to. [para. 11].

R. v. Koruz et al. (1992), 125 A.R. 161; 14 W.A.C. 161; 72 C.C.C.(3d) 353 (C.A.), folld. [para. 77].

R. v. Heikel and Sutton (1992), 125 A.R. 298; 14 W.A.C. 298; 72 C.C.C.(3d) 481 (C.A.), folld. [para. 77].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165; 49 C.C.C.(3d) 289; 70 C.R.(3d) 209, folld. [para. 145].

R. v. Slaney (P.) (1992), 99 Nfld. & P.E.I.R. 141; 315 A.P.R. 141; 75 C.C.C.(3d) 385 (Nfld. C.A.), affd. [1993] 2 S.C.R. 228; 153 N.R. 153; 106 Nfld. & P.E.I.R. 137; 334 A.P.R. 137, refd to. [para. 222].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 232].

R. v. Potma (1983), 2 C.C.C.(3d) 383 (Ont. C.A.), leave to appeal refused (1983), 50 N.R. 400; 41 O.R.(2d) 43 (S.C.C.), refd to. [para. 235].

R. v. T.G.P. (1996), 84 B.C.A.C. 219; 137 W.A.C. 219; 112 C.C.C.(3d) 171 (C.A.), refd to. [para. 235].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al. (1997), 218 N.R. 81; 151 D.L.R.(4th) 119 (S.C.C.), refd to. [para. 237].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122; [1988] 4 W.W.R. 97; 32 C.R.R. 269; 40 C.C.C.(3d) 481; 62 C.R.(3d) 349, refd to. [para. 240].

R. v. Potvin (R.), [1993] 2 S.C.R. 880; 155 N.R. 241; 66 O.A.C. 81; 105 D.L.R.(4th) 214; 83 C.C.C.(3d) 97; 23 C.R.(4th) 10; 16 C.R.R.(2d) 260, refd to. [para. 248].

R. v. Jack (B.G.) (1997), 113 Man.R.(2d) 84; 131 W.A.C. 84; 117 C.C.C.(3d) 43, supplementary reasons 113 Man.R.(2d) 260; 131 W.A.C. 260 (C.A.), affd. (1997), 214 N.R. 294; 118 Man.R.(2d) 168; 149 W.A.C. 168; 117 C.C.C.(3d) 70 (S.C.C.), refd to. [para. 249].

R. v. Wise (1996), 47 C.R.(4th) 6 (Ont. Gen. Div.), refd to. [para. 253].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81; 59 C.C.C.(3d) 449; 79 C.R.(3d) 273; 49 C.R.R. 1; 74 D.L.R.(4th) 355; 75 O.R.(2d) 673, refd to. [para. 278].

R. v. Keegstra (1994), 157 A.R. 1; 77 W.A.C. 1; 23 Alta. L.R.(3d) 4 (C.A.), refd to. [para. 282].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; [1987] 3 W.W.R. 699; 56 C.R.(3d) 193; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 13 B.C.L.R.(2d) 1; 28 C.R.R. 122, refd to. [para. 293].

Counsel:

Peter W.L. Martin, for the Crown;

T.P. Glancy, for Rodney Donald Lenny;

T.M. Engel, for Therese Rachael Martel.

This application was heard by Costigan, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on December 23, 1997.