R. v. R.E.M., 2007 BCCA 154

• Judge: Rowles, Donald and Saunders, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 12, 2006
• Jurisdiction: British Columbia
• Citations: 2007 BCCA 154;(2007), 238 B.C.A.C. 176 (CA)

R. v. R.E.M. (2007), 238 B.C.A.C. 176 (CA);

    393 W.A.C. 176

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. MR.045

Regina (respondent) v. R.E.M. (appellant)

(CA033054; 2007 BCCA 154)

Indexed As: R. v. R.E.M.

British Columbia Court of Appeal

Rowles, Donald and Saunders, JJ.A.

March 15, 2007.

Summary:

R.E.M. was charged with six counts of historical sexual offences. He applied for a stay of proceedings on the basis of unreasonable delay.

The British Columbia Supreme Court, in a decision reported at [2004] B.C.T.C. 987; 2004 BCSC 987, dismissed the application.

The British Columbia Supreme Court, in a decision reported at [2004] B.C.T.C. 1679; 2004 BCSC 1679, convicted R.E.M. of three counts. R.E.M. appealed from the convictions.

The British Columbia Court of Appeal allowed the appeal on two counts, ordering a new trial as to them, and dismissed the appeal on the third count.

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 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - In 1988, R.E.M. was charged with sexual assault - He failed to appear for his trial - In 2003, R.E.M. was extradited from the United States - On the first day of his trial in 2004, he applied for a stay of proceedings due to unreasonable delay (Charter, s. 11(b)), asserting that he had not sought to hide himself and had not waived his rights - The Crown consented to proceed without an adjournment - The trial judge dismissed the application, indicating that the delay was attributable to R.E.M. who used it as a tactical weapon - R.E.M. was convicted - He appealed, asserting, inter alia, that the trial judge had erred in deciding the application before the trial and in reproducing a portion of another decision because he had only a short time to prepare the ruling - The British Columbia Court of Appeal held that there was no merit in the submission - Neither R.E.M. nor the Crown asked the trial judge to reserve his ruling - R.E.M. had a full opportunity to present evidence - He could have renewed his application in light of evidence adduced during the trial, but had not - Further, by referring to the other decision, the trial judge had broadened his considerations to include s. 7 of the Charter - There was no error in that - See paragraphs 20 to 21.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - In 1988, R.E.M. was charged with sexual assault - He failed to appear for his trial - In 2003, R.E.M. was extradited from the United States - At his trial in 2004, he applied for a stay of proceedings due to unreasonable delay (Charter, s. 11(b)), asserting that he had not sought to hide himself and had not waived his rights - He led no evidence of specific prejudice - The trial judge dismissed the application, indicating that the delay was attributable to R.E.M. who used it as a tactical weapon - Further, R.E.M. had failed to establish prejudice - R.E.M. was convicted - He appealed, asserting, inter alia, that the trial judge had erred in dismissing the application on the basis of no prejudice because he had made extensive use of a previous decision and had not addressed the case before him - The British Columbia Court of Appeal held that there was no merit in the submission - There was no error in the trial judge's use of previous statements - It was clear from the ruling that the significant feature was R.E.M.'s fugitive status - The lack of prejudice resulting from the delay was a finding of fact - R.E.M. had not pointed to any evidence that was ignored by the trial judge - See paragraphs 22 to 24.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - [See second Civil Rights - Topic 3262 ].

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - R.E.M. was charged with six counts of historical sexual assault, regarding two complainants, C.J. and K.A.P. - The trial judge convicted R.E.M. on three counts regarding C.J. - R.E.M. appealed, asserting, inter alia, that the trial judge's reasons were insufficient - The British Columbia Court of Appeal allowed the appeal on two counts - The question was whether the reasons permitted the appellate court to be satisfied of the pathway to conviction and were sufficient to establish that the trial judge properly considered the evidence - While there were cases where an undiminished acceptance of the complainant's evidence was reflected in undiminished rejection of the accused's, here, C.J.'s evidence was not unreservedly accepted - However, there was no general discussion of R.E.M.'s evidence other than the bare statement that he denied the allegation - Although the trial judge said he was not left in doubt by R.E.M.'s evidence, the findings of fact did not demonstrate that - There were too many reasonable questions left - Because R.E.M.'s evidence acknowledged the events that comprised one count, there was no basis for setting that verdict aside - However, on the other two counts the reasons for judgment did not meet the minimal standard - As to them, the court ordered a new trial - See paragraphs 26 to 65.

Courts - Topic 585.1

Judges - Duties - Respecting findings of fact - [See Courts - Topic 583 ].

Criminal Law - Topic 4486

Procedure - Trial - Stay of proceedings - [See first Civil Rights - Topic 3262 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Courts - Topic 583 ].

Criminal Law - Topic 4948

Appeals - Indictable offences - New trials - Grounds - Lack of record of evidence at trial - [See Courts - Topic 583 ].

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, refd to. [para. 15].

R. v. Wilder (D.M.), [2001] B.C.T.C. 1599; 2001 BCSC 1599, refd to. [para. 20].

R. v. Stewart (B.C.) (2000), 139 B.C.A.C. 213; 227 W.A.C. 213; 2000 BCCA 399, refd to. [para. 23].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 47].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 47].

R. v. J.J.R.D. (2006), 218 O.A.C. 37 (C.A.), appld. [para. 52].

R. v. Thomas (D.L.) (2006), 230 B.C.A.C. 267; 380 W.A.C. 267; 212 C.C.C.(3d) 460; 2006 BCCA 411, refd to. [para. 53].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 61].

Counsel:

B. Coleman, Q.C., and C.C. Nowlin, for the appellant;

U. Botz, for the respondent.

This appeal was heard at Vancouver, British Columbia, on September 12, 2006, by Rowles, Donald and Saunders, JJ.A., of the British Columbia Court of Appeal. Saunders, J.A., delivered the following reasons for judgment for the Court on March 15, 2007.