R. v. Light (R.C.) and Hull (R.B.), (1993) 21 B.C.A.C. 241 (CA)

• Judge: Hutcheon, Wood and Rowles, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 09, 1992
• Jurisdiction: British Columbia
• Citations: (1993), 21 B.C.A.C. 241 (CA)

R. v. Light (R.C.) (1993), 21 B.C.A.C. 241 (CA);

    37 W.A.C. 241

MLB headnote and full text

Regina (respondent) v. Robert Craig Light (appellant) and Ralph Bordeaux Hull (appellant)

(CA011786; CA012268)

Indexed As: R. v. Light (R.C.) and Hull (R.B.)

British Columbia Court of Appeal

Hutcheon, Wood and Rowles, JJ.A.

January 5, 1993.

Summary:

The accused appealed their convictions by a jury on a charge of possession of mari­juana for the purpose of trafficking.

The British Columbia Court of Appeal allowed the appeal of the accused Light, set aside his conviction, and ordered a new trial. The court dismissed the appeal of the accused Hull.

Civil Rights - Topic 3261

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - General - The British Columbia Court of Appeal stated that the right to be tried within a reasonable time, under s. 11(b) of the Charter, is a right belonging to the accused - It is an adjunct of, and its real purpose is to protect, the right of an accused to liberty, security of the person and a fair trial - The remedy for its breach is a stay of proceedings - See paragraph 76.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - "Within a reasonable time" - What constitutes - The accused were arrested in Septem­ber 1987 and charged with pos­session for the purpose of trafficking - In January 1988 a new infor­mation charged them with conspir­acies to import and traffic - In August 1988, because the preliminary hearing would not end on time, the Crown pre­ferred indict­ments charg­ing them with conspir­acy to traffic and possession for the pur­pose - Follow­ing several adjourn­ments the trial was scheduled for October 16, 1989 - After three days the Crown stayed the conspiracy charges - A mistrial was declared on the possession charge - A new trial began on October 31, 1989 - On No­vember 29, 1989, the accused were con­victed of pos­session - The British Colum­bia Court of Appeal affirmed there was no unreas­onable delay - See para­graphs 25 to 57, 104 to 108.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - The British Columbia Court of Appeal held that the power of the court to grant a stay of proceedings pursuant to s. 24(1) of the Charter, because of a breach of an accused's right to be tried within a reasonable time, and the jurisdic­tion of the court to stay proceedings which would constitute an abuse of its process, were separate and distinct remedies for separate and distinct mischiefs and should be considered separately - The court dis­cussed and distinguished the two remedies - See paragraphs 75 to 81.

Criminal Law - Topic 22

Prosecution of crime - Function of the Crown prosecutor and the Attorney Gen­eral - The British Columbia Court of Appeal held that whether it is through the police officers who conduct the investiga­tion or counsel who presents the prosecu­tion, there is nothing wrong with the Crown making a qualitative judgment on the reliability of individual pieces of evi­dence; indeed, that is part of their function - And there is no abuse of process about a decision to prosecute, made in the face of evidence which is favourable to the defence, but which is thought by the Crown to be unreliable - See paragraph 88.

Criminal Law - Topic 253

Abuse of process - What constitutes - The accused were charged with con­spiracies to import and traffic in narcotics, and then all directly indicted with conspir­acy to traffic, effectively delaying the accused's trial on further charges of pos­session for the pur­pose of trafficking for as long as a year - Then, when conspiracy charges were stayed, the accused were allegedly returned to their original position, facing the same charge - The accused alleged abuse of process: (1) failure to give reasons for pre­ferring an indict­ment, and (2) deciding to charge conspiracy to traffic first by information and then by indict­ment, and to persist for 21 months, when the Crown knew there was no case to take to a jury - The British Col­umbia Court of Appeal affirmed there was no abuse of pro­cess - See paragraphs 70 to 103.

Criminal Law - Topic 255

Abuse of process - Power of court to prevent an abuse of process and to grant accused a stay of proceedings - [See Civil Rights - Topic 8374 ].

Criminal Law - Topic 2650

Attempts, conspiracies, accessories and parties - Conspiracies - Agreement - What constitutes a conspiracy - The Brit­ish Columbia Court of Appeal held that there was no requirement on the Crown in a conspiracy case to state a "theory" by which it is then bound - See paragraph 98.

Criminal Law - Topic 2754

Attempts, conspiracies, accessories and parties - Parties to offences - Offence resulting from acting on common intention to carry out unlawful purpose - The Brit­ish Columbia Court of Appeal stated that on a conspiracy charge, where the exis­tence of the conspiracy was estab­lished beyond a reason­able doubt, the acts and declarations of co-conspirators in further­ance of that conspiracy were admis­sible against any accused whose probable mem­bership in the conspiracy was inde­pen­dently established by evidence directly admissible against him - The court held that the same rule applied where the Crown relied on Crimi­nal Code, s. 21(2), and set out the elements of the jury charge where the Crown relies on s. 21(2) - The court dis­cussed the evidentiary require­ments for proving com­mon inten­tion and the accus­ed's adherence to it - See para­graphs 116 to 122.

Criminal Law - Topic 2759

Attempts, conspiracies, accessories and parties - Parties to offences - Jury charge - [See Criminal Law - Topic 2754 ].

Criminal Law - Topic 4262

Procedure - Indictment - Preferring of indictments - The British Columbia Court of Appeal rejected an appellant's argument that the consent of the Attorney General must be renewed whenever a charge pre­ferred by way of a direct indictment is stayed - See paragraphs 109 to 112.

Narcotic Control - Topic 908

Offences - Included offences - Inclusion in trafficking - The British Columbia Court of Appeal held that trafficking and possession for the purpose of trafficking were two separate and distinct offences - Possession was not an included offence in a charge of trafficking - See paragraph 114.

Words and Phrases

For that purpose - The British Columbia Court of Appeal referred to the meaning of the phrase "for that purpose", as found in s. 577(c) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraph 111.

Cases Noticed:

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122; 32 C.R.R. 269; 40 C.C.C.(3d) 481; 62 C.R.(3d) 349; [1988] 4 W.W.R. 97, refd to. [para. 73].

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. [paras. 76, 105, 106].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 77].

Connelly v. Director of Public Prosecu­tions, [1964] 2 All E.R. 401 (H.L.), refd to. [para. 77].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; [1985] 6 W.W.R. 127; 21 C.C.C.(3d) 7; 20 D.L.R.(4th) 651; 47 C.R.(3d) 193, refd to. [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, refd to. [para. 77].

Smythe v. R., [1971] S.C.R. 680, refd to. [para. 79].

R. v. Verrette, [1978] 2 S.C.R. 838; 21 N.R. 571; 85 D.L.R.(3d) 1; 40 C.C.C.(2d) 273; 3 C.R.(3d) 132, refd to. [para. 79].

Balderstone v. R. and Manitoba (Attorney General); Play-All Ltd. et al. v. Penner et al., [1983] 6 W.W.R. 438; 23 Man.R.(2d) 125; 8 C.C.C.(3d) 532; 4 D.L.R.(4th) 162; 6 C.R.R. 356 (C.A.), affd. [1983] 1 W.W.R. 72; 19 Man.R.(2d) 321; 2 C.C.C.(3d) 37; 3 C.R.R. 174; 143 D.L.R.(3d) 671 (Q.B.), refd to. [para. 79].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 88].

R. v. Douglas and Douris, [1991] 1 S.C.R. 301; 122 N.R. 1; 47 O.A.C. 1; 63 C.C.C.(3d) 29; 3 C.R.(4th) 246, refd to. [para. 96].

R. v. Bengert et al. (1980), 53 C.C.C.(2d) 481; 15 C.R.(3d) 114 (B.C.C.A.), refd to. [para. 98].

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. 104].

R. v. McKay, [1979] 4 W.W.R. 90; 5 Sask.R. 214; 9 C.R.(3d) 378 (C.A.), refd to. [para. 111].

R. v. Simpson and Ochs, [1988] 1 S.C.R. 3; 81 N.R. 267; 38 C.C.C.(3d) 481; [1988] 2 W.W.R. 385; 62 C.R.(3d) 137; 46 D.L.R.(4th) 466; 23 B.C.L.R.(2d) 145, refd to. [para. 113].

R. v. Vickers (1963), 41 C.R. 235 (B.C.C.A.), refd to. [para. 114].

R. v. Shewfelt, [1972] 3 W.W.R. 232; 6 C.C.C.(2d) 304; 18 C.R.N.S. 185 (B.C.C.A.), refd to. [para. 114].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142; 137 D.L.R.(3d) 387; 67 C.C.C.(2d) 568; 31 C.R.(3d) 97, refd to. [para. 116].

Colpitts v. R., [1965] S.C.R. 739; [1966] 1 C.C.C. 146; 47 C.R. 175; 52 D.L.R.(2d) 416, refd to. [para. 126].

R. v. Terrence, [1983] 1 S.C.R. 357; 47 N.R. 8; 147 D.L.R.(3d) 724; 4 C.C.C.(3d) 193; 33 C.R.(3d) 193, refd to. [para. 130].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417; 59 C.R.(3d) 108; 17 B.C.L.R.(2d) 1; [1987] 6 W.W.R. 97; 43 D.L.R.(4th) 424, refd to. [para. 136].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 7 [para. 88]; sect. 11(b) [para. 2]; sect. 24(1) [para. 54].

Criminal Code, R.S.C. 1985, c. C-46, sect. 4(3) [para. 127]; sect. 21(1) [para. 129]; sect. 21(2) [para. 3]; sect. 577(c), sect. 579(1) [para. 111]; sect. 686(1)(a)(i) [para. 136]; sect. 686(1)(b)(iii) [para. 124].

Narcotic Control Act, R.S.C. 1985, c. N-1, sect. 2 [para. 115].

Counsel:

J.B. Jackson, for the appellant, Light;

A. Bartram, for the appellant, Hull;

K.J. Yule, for the respondent, Crown.

This appeal was heard in Vancouver, British Columbia, on February 20, 21 and March 9, 1992, before Hutcheon, Wood and Rowles, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Wood, J.A., on January 5, 1993.