R. v. R.J.C., 2011 ABQB 555

• Judge: Hall, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 16, 2011
• Citations: 2011 ABQB 555;(2011), 526 A.R. 138 (QB)

R. v. R.J.C. (2011), 526 A.R. 138 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. NO.057

Her Majesty The Queen (Crown) v. R.J.C. (applicant)

(080935570Q1; 2011 ABQB 555)

Indexed As: R. v. R.J.C.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hall, J.

September 16, 2011.

Summary:

An accused was charged with sexually assaulting his daughter between 1984 and 1986. He applied for a stay of proceedings under s. 24(1) of the Charter on the grounds that his s. 11(b) right to be tried within a reasonable time had been infringed (post-charge delay) and/or for abuse of process for pre-charge delay (ss. 7 and 11(d)).

The Alberta Court of Queen's Bench dismissed the application.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise

Civil Rights - Topic 3130

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Delay - A daughter complained to police that her father had sexually assaulted her 20 years earlier - There was a delay of one year and eight months between the complaint and the laying of a sexual assault charge - The Alberta Court of Queen's Bench agreed with the accused that the police investigation was "dilatory and neglectful" - The court stated that "if the court finds that there has been such 'unfairness or vexatiousness' as to amount to a contravention of fundamental notions of justice, the court will grant a stay of proceedings, but only in the 'clearest of cases'. Here, there is no evidence of prejudice occurring in the time between the complaint being made and the warrant being issued. Here there is no indication of any ulterior motive for delay. Here the charges are serious charges. It is not a case of vexatiousness. There is no inherent 'unfairness' to the applicant. The investigation, while dilatory and negligent, did not undermine the integrity of the judicial process. Accordingly, I find that there has been no breach of the accused's section 7 and section 11(d) Charter rights during the period between the complaint being made and the accused being arrested." - See paragraphs 25 to 41.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - A daughter complained to police that her father had sexually assaulted her 20 years earlier - The father argued that the pre-charge delay severely prejudiced his ability to make full answer and defence, depriving him of the ability to have a fair trial - The daughter's mother (father's first wife) had since died and a man who temporarily lived in the family home at the time could not be located - The father argued that he could not have a fair trial because this lost evidence could have assisted his defence - The Alberta Court of Queen's Bench held that there was no evidence that this "lost evidence" would have assisted the father rather than the Crown - The father failed to establish that this "lost evidence" would deprive him of his right to a fair trial (Charter, ss. 7 and 11(d)) - See paragraphs 8 to 24.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - A daughter complained to police that her father had sexually assaulted her 20 years earlier - There was a delay of one year and eight months between the complaint and the laying of a sexual assault charge - There was a further 32.5 month post-charge delay - The accused applied under s. 24(1) of the Charter for a stay of proceedings on the ground that the cumulative effect of the pre-charge and post-charge delay constituted an abuse of process (Charter, s. 7) - The Alberta Court of Queen's Bench declined to grant a stay of proceedings - The delays did not cause actual or presumed prejudice to the accused and there was a public interest in proceeding to trial - See paragraphs 59 to 66.

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 daughter complained to police that her father had sexually assaulted her 20 years earlier - There was a delay of one year and eight months between the complaint and the laying of a sexual assault charge - There was a further 32.5 month post-charge delay - The accused applied under s. 24(1) of the Charter for a stay of proceedings on the ground that his s. 11(b) Charter right to be tried within a reasonable time had been infringed - The largest portion of the delay, attributable to the Crown, was nine months to serve an arrest warrant and an 8.5 month institutional delay - The Alberta Court of Queen's Bench held that the delay, while excessive, did not violate the accused's right to be tried within a reasonable time, because there was no actual or presumed prejudice to the accused's right to make full answer and defence - See paragraphs 42 to 58.

Civil Rights - Topic 8374

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

Cases Noticed:

R. v. W.K.L., [1991] 1 S.C.R. 1091; 124 N.R. 146, refd to. [para. 9].

R. v. Antinello (J.J.) (1995), 165 A.R. 122; 89 W.A.C. 122 (C.A.), refd to. [para. 11].

R. v. Grimes (D.W.) (1998), 209 A.R. 360; 160 W.A.C. 360; 122 C.C.C.(3d) 331 (C.A.), refd to. [para. 13].

R. v. D.A. (1992), 57 O.A.C. 295; 76 C.C.C.(3d) 1 (C.A.), refd to. [para. 22].

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

R. v. Young (1984), 3 O.A.C. 254 (C.A.), refd to. [para. 35].

R. v. Doston (D.) (2008), 277 N.S.R.(2d) 211; 882 A.P.R. 211 (S.C.), refd to. [para. 35].

R. v. Rourke (1978), 16 N.R. 181 (S.C.C.), refd to. [para. 36].

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. 38].

R. v. Heikel and Sutton (1992), 125 A.R. 298; 14 W.A.C. 298; 72 C.C.C.(3d) 481 (C.A.), refd to. [para. 43].

R. v. Morin, [1992] 1 S.C.R. 1771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 44].

R. v. Grant (L.D.), [2001] B.C.T.C. 639; 2001 BCSC 639, refd to. [para. 48].

R. v. Alhakim (M.H.) (1999), 12 B.C.T.C. 316 (S.C.), refd to. [para. 50].

R. v. Ogilvie, [2006] B.C.J. No. 1339, refd to. [para. 50].

R. v. Duncan, [2007] B.C.J. No. 971, refd to. [para. 50].

R. v. Ram, [1993] B.C.J. No. 1492 (Prov. Ct.), refd to. [para. 50].

R. v. Battilana, [1986] B.C.J. No 1025, refd to. [para. 50].

R. v. Kennedy (S.) (2004), 369 A.R. 273 (Q.B.), dist. [para. 59].

R. v. Joudrey (G.W.) (2010), 292 N.S.R.(2d) 332; 925 A.P.R. 332 (C.A.), dist. [para. 59].

Counsel:

Robert J. Batting (Batting, Der), for the applicant;

Joe Mercier (Crown Prosecutor's Office), for the Crown.

This application was heard on April 13-15, 2011, before Hall, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on September 16, 2011.