R. v. Rahey, EYB 1987-67384

JudgeDickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.
CourtSupreme Court (Canada)
Case DateMay 14, 1987
JurisdictionCanada (Federal)
CitationsEYB 1987-67384;[1987] CarswellNS 38;57 CR (3d) 289;AZ-87111027;(1987), 75 N.R. 81 (SCC);33 CRR 275;33 CCC (3d) 289;193 APR 183;[1987] DLQ 435;78 NSR (2d) 183;JE 87-623;39 DLR (4th) 481;2 WCB (2d) 217;75 NR 81;[1987] SCJ No 23 (QL);[1987] 1 SCR 588;1987 CanLII 52 (SCC)

R. v. Rahey (1987), 75 N.R. 81 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Carl R. Rahey v. Her Majesty the Queen by her Attorney General of Canada

(18906)

Indexed As: R. v. Rahey

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.

May 14, 1987.

Summary:

In May 1978 the Minister of National Revenue began an income tax investigation of the accused, seizing all his books, records and documents. In March 1980 he was reassessed tax for the years 1972-1977. He was placed in receivership by the Minister in January 1981, at which time the Minister had grounds to prosecute. An information was laid against the accused in August 1981 and his trial took place from March to May 1982 and was then adjourned to November. In November the Crown closed its case. On December 13, 1982, the accused moved for a directed verdict. The trial judge adjourned the proceedings 19 times over 11 months. The trial judge rendered a decision only after mandamus was obtained to compel him to render a decision. The accused applied for dismissal of the charges against him on the ground that his right to be tried within a reasonable time under s. 11(b) of the Charter of Rights and Freedoms was denied.

The Nova Scotia Supreme Court, Trial Division, in a judgment reported 61 N.S.R.(2d) 385; 133 A.P.R. 385, allowed the application and dismissed the charges. The court found that the time spent in investigating the accused's affairs was not unreasonable, because the investigation was extremely complex. Similarly, the time spent trying the case was not unreasonable. However, the court found that the judge's delay in rendering his decision on the accused's motion for a directed verdict was unreasonable and prejudiced the accused in his defence. The court held that the appropriate remedy was dismissal of the charges. The Crown appealed.

The Nova Scotia Supreme Court, Appeal Division, in a judgment reported 63 N.S.R.(2d) 275; 141 A.P.R. 275, allowed the appeal and set aside the acquittal. The court held that although the trial judge's delay was disgraceful, the accused's right to be tried within a reasonable time under s. 11(b) was not denied, where the accused was not prejudiced by the delay. The accused appealed.

The Supreme Court of Canada allowed the appeal, set aside the conviction and directed that a stay of proceedings be entered. The court held that the accused's right to be tried within a reasonable time was denied.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - The accused moved for a directed verdict following the close of the Crown's case - The trial judge adjourned the rendering of a decision 19 times over the next 11 months - Each time the accused consented to the adjournment - An issue arose as to whether the accused, by consenting had waived the delays - The Supreme Court of Canada held that the consents to adjournments requested by the trial judge, as opposed to the Crown were not unequivocal waivers of the delay - The court stated that acquiescence to a delay requested by the judge in whose hands the fate of a motion for a directed verdict lies must be assessed differently than delays requested by the Crown, because of the judge's position of authority and fear of jeopardizing the accused's case - The court held that any waiver must be clear, unequivocal and informed - See paragraphs 44 to 46, 67, 69, 127 to 128.

Civil Rights - Topic 3263

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Trial - Meaning of - The Supreme Court of Canada affirmed that an accused's right to be tried within a reasonable time under s. 11(b) of the Charter of Rights and Freedoms included the right to have a decision rendered within a reasonable time - See paragraphs 39 to 41, 92 to 95.

Civil Rights - Topic 3264

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Denial of right - Minimum remedy - The Supreme Court of Canada held that where an accused's right to be tried within a reasonable time under s. 11(b) of the Charter of Rights and Freedoms was denied the minimal remedy the accused was entitled to was a stay in the proceedings - After the passage of an unreasonable period of time no trial, even the fairest possible trial, was permissible - La Forest, J. (McIntyre, J., concurring), disagreed that a stay of proceedings was always the appropriate remedy for denial of the right to be tried within a reasonable time - See paragraphs 48 to 52, 56 to 61, 73.

Civil Rights - Topic 3264

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Denial of right - Whether jurisdictional - Four judges of the Supreme Court of Canada held that the denial of an accused's right to be tried within a reasonable time went to the jurisdiction of any court to put the accused on trial or continue with the charges against him - Two judges found it unnecessary to characterize the denial of rights as going to jurisdiction, although they stated that such a characterization may be justified for other purposes - Two judges referred to R. v. Mills, 67 N.R. 241, wherein the Supreme Court of Canada previously rejected the notion that unreasonable delay went to jurisdiction - The remaining judge took no part in the judgment.

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 Minister of National Revenue began an extremely complex income tax investigation against the accused in May 1978, seizing all his records and documents - In August 1981 charges were laid against the accused, respecting the years 1972-1977 - The trial took place from March to May 1982 and the Crown's case was concluded in November - The accused moved for a directed verdict - The trial judge adjourned his decision on the motion 19 times in 11 months - The Supreme Court of Canada affirmed that the delay in rendering a decision denied the accused his right to be tried within a reasonable time under s. 11(b) of the Charter of Rights and Freedoms - See paragraphs 42 to 47, 56, 69, 127.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitutes - Relevant time period - An accused submitted that his right to be tried within a reasonable time was denied where the trial judge adjourned the proceedings 19 times in 11 months before rendering a decision on the accused's motion for a directed verdict following the close of the Crown's case - The Supreme Court of Canada held that delay after a trial commenced was relevant, because terminating the protection afforded by s. 11(b) at the moment a trial commenced would disregard the purpose of s. 11(b) and would unduly emasculate the protection it sought to afford - The court held that a decision on the accused's guilt or innocence must be rendered within a reasonable time - See paragraphs 39 to 41, 92 to 95.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitutes - Considerations - The Supreme Court of Canada discussed the factors to be considered in determining whether an accused was tried within a reasonable time - Six judges held that prejudice to the accused was relevant, notwithstanding its concurrent relevance to the issue of whether the accused would receive a fair trial as provided in s. 11(d) of the Charter of Rights and Freedoms - Two judges stated that prejudice was irrelevant to s. 11(b), but was a factor in determining a violation of rights under s. 11(d) - See paragraphs 19 to 38, 62 to 66, 71, 119 to 122.

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction - Court of competent jurisdiction - What constitutes - An accused alleged a denial of his right to be tried within a reasonable time under s. 11(b) of the Charter on the basis of the trial judge's 11 month delay in rendering a decision on a directed verdict following the close of the Crown's case - The accused applied to the Nova Scotia Supreme Court, Trial Division, rather than the trial court, for a dismissal of the charges under s. 24(1) - The Supreme Court of Canada affirmed that the Nova Scotia Supreme Court, Trial Division, was a court of competent jurisdiction under s. 24(1) of the Charter - The court stated that "it is the judge sitting at trial who would have jurisdiction over the person and subject matter and would have jurisdiction to grant the necessary remedy" - However, the superior courts also have "constant, complete and concurrent jurisdiction" for s. 24(1) applications - The court held that the case at bar was a perfect example of where the trial court was a court of competent jurisdiction, but it was preferable (where the trial court was the alleged cause of the Charter rights denial) that the superior court deal with the matter - See paragraphs 16 to 18, 55, 69, 86 to 91.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3264 above] - See paragraphs 48 to 52, 56 to 61, 73.

Civil Rights - Topic 8504

Canadian Charter of Rights and Freedoms - Enforcement - Jurisdiction - The Supreme Court of Canada affirmed that the Nova Scotia Supreme Court, Trial Division, being a superior court, had jurisdiction to hear an accused's application for relief for denial of his right to be tried within a reasonable time in proceedings in the Provincial Court, where the delay allegedly denying his rights was caused by the trial judge - See paragraphs 16 to 18, 55, 69, 86 to 91.

Courts - Topic 599

Judges - Duties - To decide within a reasonable time - An accused submitted that his right to be tried within a reasonable time was denied where the trial judge adjourned the proceedings 19 times in 11 months before rendering a decision on the accused's motion for a directed verdict following the close of the Crown's case - The Supreme Court of Canada affirmed that s. 11(b) of the Charter of Rights and Freedoms required the trial judge to render his decision within a reasonable time - See paragraphs 39 to 41, 92 to 95.

Cases Noticed:

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, appld. [paras. 1, 16, 20, 38, 40, 45, 48, 62, 64, 66, 84, 86-88, 109, 116].

Barker v. Wingo (1972), 407 U.S. 514, consd. [paras. 12, 15, 24, 29, 48, 83, 85, 103, 104, 106, 117].

Dickey v. Florida (1970), 398 U.S. 30, refd to. [paras. 25, 33, 92, 103, 117].

United States v. Ewell (1966), 383 U.S. 116, refd to. [paras. 25, 117].

Duncan v. Louisiana (1968), 391 U.S. 145, refd to. [para. 28].

Klopfer v. North Carolina (1967), 386 U.S. 213, refd to. [paras. 29, 103, 113].

Strunk v. United States (1973), 412 U.S. 434, refd to. [paras. 49, 104].

R. v. Beason (1983), 7 C.C.C.(3d) 20 (Ont. C.A.), consd. [para. 50].

R. v. Antoine (1983), 5 C.C.C.(3d) 97 (Ont. C.A.), refd to. [para. 70].

R. v. Heaslip et al. (1983), 1 O.A.C. 81; 9 C.C.C.(3d) 480 (Ont. C.A.), refd to. [para. 70].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 84].

R. v. Cameron, [1982] 6 W.W.R. 270; 39 A.R. 194 (Q.B.), refd to. [para. 101].

United States v. Loud Hawk (1986), 106 S. Ct. 648, refd to. [para. 106].

United States v. MacDonald (1982), 456 U.S. 1, refd to. [para. 112].

Smith v. Hooey (1969), 393 U.S. 374, refd to. [para. 117].

R. v. Robins (1844), 1 Cox C.C. 114, refd to. [para. 118].

Moore v. Arizona (1973), 414 U.S. 25, refd to. [para. 120].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(b) [paras. 9, 75, 93]; sect. 11(d), sect. 24(1) [paras. 9, 75].

Magan Carta, 1215, art. 40 [para. 97].

Authors and Works Noticed:

Amsterdam, Anthony, Speedy Criminal Trial; Rights and Remedies (1975), 27 Stan. L. Rev. 525, p. 533 [para. 22].

Uviller, Richard H., Barker v. Wingo: Speedy Trial Gets a Fast Shuffle (1972), 72 Colum. L. Rev. 1376 [para. 29].

Hogg, Peter, Constitutional Law of Canada (2nd Ed. 1985), p. 764 [para. 105].

Dismissal of the Indictment as a Remedy for Denial of the Right to Speedy Trial, Note on, (1955), 64 Yale L.J. 1208, p. 1211 [para. 107].

Coke, Sir Edward, Institutes of the Laws of England (2nd part 1817), p. 55 [para. 118].

Garton, Graham, Re Canadian Charter of Rights and Freedoms, s. 11(b): The Relevance of Pre-charge Delay in Assessing the Right to Trial Within a Reasonable Time (1984), 46 Nfld. & P.E.I.R. 177; 135 A.P.R. 177; 52 N.R. 116; 2 O.A.C. 140; 51 A.R. 140; 31 Sask.R. 290; 27 Man.R.(2d) 74; 52 N.B.R.(2d) 293; 137 A.P.R. 293; 62 N.S.R.(2d) 243; 136 A.P.R. 243, p. 180 [para. 26].

Counsel:

Joel E. Fichaud, for the appellant;

Eric Bowie, Q.C., and Douglas Richard, for the respondent.

This appeal was heard on June 17, 1986, before Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada.

On May 14, 1987, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Lamer, J. (Dickson, C.J.C., concurring) - paragraphs 1 to 53;

Wilson, J., (Estey, J., concurring) - paragraphs 54 to 68;

Le Dain, J. (Beetz, J., concurring) - paragraphs 69 to 73;

La Forest, J. (McIntyre, J., concurring) - see paragraphs 74 to 130.

Chouinard, J., did not take part in the judgment.

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