R. v. Orysiuk, (1977) 6 A.R. 548 (CA)

• Judge: Clement, Lieberman, Moir, Haddad and Morrow, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 14, 1977
• Citations: (1977), 6 A.R. 548 (CA)

R. v. Orysiuk (1977), 6 A.R. 548 (CA)

MLB headnote and full text

R. v. Orysiuk

Indexed As: R. v. Orysiuk

Alberta Supreme Court

Appellate Division

Clement, Lieberman, Moir, Haddad and Morrow, JJ.A.

September 14, 1977.

Summary:

This case arose out of a charge against a former government official of committing a breach of trust contrary to s. 111 of the Criminal Code of Canada. In 1975, the report of an inquiry into corruption in the Alberta Housing Corporation stated that the accused had committed specific criminal offences. The report of the inquiry was given wide publicity in Alberta. The accused was subsequently charged with offences referred to in the report. After a preliminary inquiry the accused was committed for trial. The accused applied to the Alberta Supreme Court for an order to quash the order for committal for trial. The Alberta Supreme Court, Trial Division, dismissed the application.

On appeal to the Alberta Court of Appeal, the appeal was dismissed and the judgment of the Trial Division was affirmed.

Criminal Law - Topic 251

Abuse of process - General principles - The Alberta Court of Appeal stated that mere delay and mere oppressiveness "would not appeal to afford a basis for applying the doctrine" of abuse of process - See paragraph 47.

Criminal Law - Topic 253

Abuse of process - What constitutes an abuse of process - In 1975, the report of an inquiry into corruption in the Alberta Housing Corporation, stated that the accused had committed specific criminal offences - The inquiry and the report was given wide publicity in Alberta - The accused was subsequently charged with the offences referred to in the report - After a preliminary inquiry the accused was committed for trial - The accused applied to the Alberta Supreme Court to quash the order of committal for trial on the ground of abuse of process because of the inability of the accused to receive a fair trial - The Alberta Court of Appeal affirmed a dismissal of the accused's application - The Alberta Court of Appeal stated that the accused's concern about adverse publicity was a matter for the trial judge who might decide to delay the trial or grant a change of venue - See paragraph 49.

Civil Rights - Topic 8000

Canadian Bill of Rights - Principles of operation - Application of the Canadian Bill of Rights to provincial statutes - The accused was compelled to testify and incriminate himself before a provincial inquiry - The Alberta Court of Appeal stated that the Canadian Bill of Rights did not apply to provincial authorities - See paragraphs 51 to 57.

Cases Noticed:

Di Iorio and Fontaine v. Warden of Common Jail of Montreal et al. (1976), 8 N.R. 361; 35 C.R.N.S. 57, folld. [para. 21].

Kilbourn v. Thompson, 103 U.S. 168, refd to. [para. 27].

McGrain v. Daugherty, 273 U.S. 135, refd to. [para. 28].

Jenkins v. McKeithen (1969), 395 U.S. 411, refd to. [para. 29].

Delaney v. United States, 199 F.R. (2d Series) 107, refd to. [para. 31].

Connelly v. D.P.P., [1964] A.C. 1254, folld. [paras. 36, 64].

R. v. Rourke, 16 N.R. 181, folld. [para. 37]; refd to. [para. 60].

Kienapple v. The Queen, [1975] 1 S.C.R. 720; 1 N.R. 322, refd to. [para. 38].

Curr v. The Queen, [1972] S.C.R. 889, folld. [para. 54].

R. v. Osborn, [1971] S.C.R. 184, folld. [para. 64].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1970, Appendix III, sect. 2(d), sect. 2(e), sect. 2(f) [para. 51].

Authors and Works Noticed:

Solman, Lord Justice, Royal Commission on Tribunals of Inquiry, (1966) [para. 19].

Ortego and Goode, Abuse of Process in Canadian Criminal Law: A New Equity? [para. 34].

Wray, D.J., Abuse of Power Doctrine in Canadian Criminal Law, 34 University of Toronto Faculty of Law Review (1976) [para. 34].

Holdsworth, A History of English Law, Vol. 4, p. 70 [para. 50].

Counsel:

A.G. MacDonald, Q.C. and R.A. Semenchuk, for the appellant;

R.W. Paisley, Q.C. and W. Henkel, Q.C., for the Crown.

This appeal was heard by CLEMENT, LIEBERMAN, MOIR, HADDAD and MORROW, JJ.A., at Edmonton, Alberta. The judgment of the Alberta Court of Appeal was delivered on September 14, 1977 and the following opinions were filed:

MORROW, J.A. - see paragraphs 1 to 58.

CLEMENT, J.A. - see paragraphs 59 to 69.

LIEBERMAN, MOIR and HADDAD, JJ.A, concurred with MORROW, J.A.