R. v. Loewen (J.K.), (1998) 131 Man.R.(2d) 217 (CA)

• Judge: Huband, Helper and Kroft, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 21, 1998
• Jurisdiction: Manitoba
• Citations: (1998), 131 Man.R.(2d) 217 (CA);1998 CanLII 17668 (MB CA);[1999] 4 WWR 429;[1998] MJ No 553 (QL);131 Man R (2d) 217;187 WAC 217;58 CRR (2d) 324

R. v. Loewen (J.K.) (1998), 131 Man.R.(2d) 217 (CA);

      187 W.A.C. 217

MLB headnote and full text

Temp. Cite: [1998] Man.R.(2d) TBEd. DE.007

Her Majesty The Queen (respondent) v. John Klassen Loewen (accused/appellant)

(AR 96-30-03044)

Indexed As: R. v. Loewen (J.K.)

Manitoba Court of Appeal

Huband, Helper and Kroft, JJ.A.

November 16, 1998.

Summary:

The accused was charged with two counts of attempting to launder money, contrary to s. 19.2 of the Narcotic Control Act. The accused sought a stay of proceedings on the ground that his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter had been violated. The trial judge refused to hear the motion because it was made just immediately before or at the onset of the trial and therefore was not in compliance with the Queen's Bench Rules (Criminal). The accused was convicted and sentenced. (See 112 Man.R.(2d) 267). The accused appealed his convictions on the ground, inter alia, that the trial judge erred in refusing to hear his application for a judicial stay of proceedings based on a breach of s. 11(b) of the Charter.

The Manitoba Court of Appeal, pursuant to the provisions of s. 683(1)(e) of the Criminal Code, ordered that the question of whether the accused's right to be tried within a rea­sonable time had been violated be referred for inquiry and report. (See 123 Man.R.(2d) 198; 159 W.A.C. 198).

The Manitoba Court of Queen's Bench, per Oliphant, A.C.J.Q.B., acting as a commis­sioner under s. 683(1)(e) of the Code, issued a report in which he concluded that the accused's right to be tried within a reason­able time had not been violated (See 128 Man.R.(2d) 184). The accused appealed.

The Manitoba Court of Appeal dismissed the appeal with respect to the issue of the s. 11(b) Charter application, holding that the accused did not establish a breach of his rights under s. 11(b).

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Waiver of right - The accused was charged with two counts of attempting to launder money - There was a 33 month delay between the date of arrest and the commencement of the trial - A commis­sioner appointed under s. 683(1)(e) of the Criminal Code found that there was no breach of the accused's right to be tried within a reasonable time under s. 11(b) of the Charter - The accused appealed, argu­ing, inter alia, that the Com­missioner erred in find­ing that the accused had waived two time periods - The accused argued that the agreement to future trial dates by his coun­sel should have been viewed as "acquies­cence in the inevitable" not waiver - The Manitoba Court of Appeal rejected the argument - See paragraphs 31 and 35 to 42.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Waiver of right - The Manitoba Court of Appeal stated that "[u]nless defence counsel makes it known to the judge fixing trial dates that the date available is not acceptable because of the lapse of time, then the fact that a trial date is set some time in the future does not automatically lead to the conclusion that the accused's consent to the trial date constitutes inevitable acquiescence" - See paragraph 39.

Civil Rights - Topic 3264

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Denial of right - The accused was charged with two counts of attempting to launder money - There was a 33 month delay between the date of arrest and the commencement of the trial - A commis­sioner appointed under s. 683(1)(e) of the Criminal Code found that there was no breach of the accused's right to be tried within a reasonable time under s. 11(b) of the Charter - The accused appealed, argu­ing, inter alia, that the Com­missioner erred in allow­ing the Crown to rely on the inherent time requirements of a complex case where it was the Crown's insistence upon prosecut­ing the charges against the accused as part of a 16 count indictment involving seven accused which created the complexity of the case - The Manitoba Court of Appeal rejected the argument - The Crown's in­dictment incor­porating 16 counts against seven accused was neither the sole nor a substantial cause of the delay - See para­graphs 43 to 53.

Civil Rights - Topic 3264

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Denial of right - The accused was charged with two counts of attempting to launder money - The accused alleged a violation of his right to be tried within a reasonable time (Charter, s. 11(b)) - A commissioner appointed under s. 683(1)(e) of the Criminal Code found that there was no breach of s. 11(b) - The accused appealed, arguing, inter alia, that the Commissioner erred in finding that the total delay was 33 months from the date of arrest to the date of commencement of the trial - The accused argued that the total delay was 38.5 months, calculated from the time of his arrest to the completion of his trial - The Manitoba Court of Appeal held that whether the delay was 33 months or 38.5 months, the same balancing process would be undertaken and the same factors would be considered and in the court's view the result would be the same - See paragraphs 31 to 34.

Civil Rights - Topic 3264

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Denial of right - [See Civil Rights - Topic 3265 ].

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 two counts of attempting to launder money - The accused alleged a violation of his right to be tried within a reasonable time (Charter, s. 11(b)) - A commissioner appointed under s. 683(1)(e) of the Criminal Code found that there was a 33 month delay between the date of arrest and the trial and that the delay was in and of itself unreasonable - However, the commissioner found that the accused waived 14.5 months of the delay and that the other 18.5 months was partly attrib­utable to the accused's actions - He found that there was no prejudice to the accused and concluded that there was no breach of s. 11(b) of the Charter - The Manitoba Court of Appeal dismissed an appeal.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - Evidence of prejudice - The accused was charged with two counts of attempting to launder money - There was a delay of 33 months between the date of arrest and the commencement of the trial - A commissioner appointed under s. 683(1)(e) of the Criminal Code found that there was no breach of the accused's right to be tried within a reasonable time under s. 11(b) of the Charter - The accused appealed, arguing, inter alia, that the Com­missioner erred in failing to infer prejudice to the accused because he lived under restrictive bail conditions during the entire period of delay and because the length of the delay gave rise to an inference of prejudice - The Manitoba Court of Appeal rejected the argument - See paragraphs 31 and 54 to 56.

Criminal Law - Topic 4983.2

Appeals - Indictable offences - Powers of Court of Appeal - Appointment of special commissioner - The accused was charged with two counts of attempting to launder money - There was a delay of 33 months between the date of arrest and the com­mencement of the trial - A commissioner appointed under s. 683(1)(e) of the Crim­inal Code found that there was no breach of the accused's right to be tried within a reasonable time under s. 11(b) of the Char­ter - The accused appealed - The Manitoba Court of Appeal stated that there was no reason why upon a reference to a commis­sioner under s. 683(1)(e) of the Code that the standard of review should be any dif­ferent than on an ordinary appeal - See paragraph 58.

Cases Noticed:

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. 3].

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. 19].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 29 D.L.R.(4th) 161; 26 C.C.C.(3d) 481, refd to. [para. 21].

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; 57 C.R.(3d) 289; 39 D.L.R.(4th) 481, refd to. [para. 21].

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. 21].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81; 52 C.C.C.(3d) 97, refd to. [para. 21].

R. v. Stensrud and Smith (G.W.), [1989] 2 S.C.R. 1115; 103 N.R. 191; 81 Sask.R. 293, refd to. [para. 21].

R. v. Kalanj; R. v. Pion, [1989] 1 S.C.R. 1594; 96 N.R. 191, refd to. [para. 31].

R. v. Koruz et al., [1993] 1 S.C.R. 1134; 150 N.R. 303; 135 A.R. 335; 33 W.A.C. 335; 79 C.C.C.(3d) 574 (S.C.C.), affing. (1992), 125 A.R. 161; 14 W.A.C. 161; 72 C.C.C.(3d) 353 (C.A.), refd to. [para. 55].

R. v. Allen (H.D.) (1996), 92 O.A.C. 345; 110 C.C.C.(3d) 331 (C.A.), refd to. [para. 55].

R. v. Morgan (G.D.I.) (1991), 79 Man.R.(2d) 21 (Q.B.), refd to. [para. 55].

R. v. Faulds (D.A.); R. v. Tyler (A.) (1996), 94 O.A.C. 335; 111 C.C.C.(3d) 39 (C.A.), refd to. [para. 55].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(b) [para. 1].

Criminal Code, R.S.C. 1985, c. C-46, sect. 683(1)(e) [para. 58].

Counsel:

D.B. Deutscher, for the appellant;

M.S. Dash, for the respondent.

This appeal was heard on October 21, 1998, before Huband, Helper and Kroft, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Helper, J.A., on November 16, 1998.