R. v. Rudko (D.), (1999) 252 A.R. 142 (QB)

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 10, 1999
• Citations: (1999), 252 A.R. 142 (QB)

R. v. Rudko (D.) (1999), 252 A.R. 142 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. SE.046

Her Majesty the Queen (respondent) v. Donald Rudko @ Donny Wally Rudko (applicant)

(Action No. 9903-1149-CI)

Indexed As: R. v. Rudko (D.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Johnstone, J.

September 15, 1999.

Summary:

On May 26, 1999, Rudko appeared before the Alberta Provincial Court on income tax charges. He made "forceful and imaginative objections" to the court's jurisdiction. The judge remanded Rudko into custody until May 28, 1999 and issued an order for him to appear on May 28, 1999 to show cause why he should not be held in contempt of court. Rudko applied for diverse remedies. He sought an order in the nature of certiorari to quash the order made against him on May 26, 1999. Rudko also sought an order pro­hibiting the judge from dealing any further with the contempt matter or various other charges he faced. As a remedy for what he alleged was a breach of his right under s. 11(e) of the Charter not to be denied rea­sonable bail without just cause, Rudko requested that the court stay the contempt proceedings against him.

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

Civil Rights - Topic 3140

Trials - Due process - Fundamental jus­tice and fair hearings - Criminal and quasi-criminal proceedings - Right to bail - On May 26, 1999, Rudko appeared before the Alberta Provincial Court on income tax charges - He was unrepre­sented - Rudko made "forceful and imagi­native objections" to the court's jurisdiction - The judge remanded Rudko into custody until May 28, 1999 and issued an order for him to appear on May 28, 1999 to show cause why he should not be held in con­tempt of court - The issue of bail pending the con­tempt hearing was not raised - The Alberta Court of Queen's Bench held: (1) the onus was not on Rudko to raise the bail issue; (2) Rudko's s. 11(e) Charter right not to be denied reasonable bail without just cause was breached - The court stayed the con­tempt proceedings - See paragraphs 5 to 40, 55.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - On May 26, 1999, Rudko appeared before the Alberta Provincial Court on income tax charges - He was unrepresented - Rudko made "forceful and imaginative objections" to the court's jurisdiction - The judge remanded Rudko into custody until May 28, 1999 and issued an order for him to appear on May 28, 1999 to show cause why he should not be held in contempt of court - The issue of bail pending the con­tempt hearing was not raised - The Alberta Court of Queen's Bench held that Rudko's s. 9 Charter right not to be arbitrarily detained was breached - The court stayed the contempt proceedings - See paragraphs 5 to 40, 55.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3140 and Civil Rights - Topic 3603 ].

Courts - Topic 691

Judges - Disqualification - Bias - Rea­son­able apprehension of bias - On May 26, 1999, Rudko appeared before the Alberta Provincial Court on income tax charges - He was unrepresented - Rudko made "forceful and imaginative objections" to the court's jurisdiction - The judge remanded Rudko into custody until May 28, 1999 and issued an order for him to appear on May 28, 1999 to show cause why he should not be held in contempt of court - The issue of bail pending the contempt hearing was not raised - The Alberta Court of Queen's Bench held: (1) Rudko's s. 11(e) Char­ter right not to be denied rea­son­able bail without just cause was breached; (2) there was a reasonable ap­prehension of bias arising from the failure to deal with the bail issue within a reason­able period of time - The court disqual­ified the judge from dealing with the income tax charges - See paragraphs 41 to 55.

Courts - Topic 691.1

Judges - Disqualification - Bias - Rea­son­able apprehension of bias - Effect of - [See Courts - Topic 691 ].

Cases Noticed:

R. v. Cohn (1984), 4 O.A.C. 293; 48 O.R.(2d) 65; 15 C.C.C.(3d) 150; 13 D.L.R.(4th) 680 (C.A.), leave to appeal refused [1985] 1 S.C.R. vii; 58 N.R. 160; 9 O.A.C. 160, refd to. [para. 5].

R. v. Winter (1986), 72 A.R. 164; 46 Alta. L.R.(2d) 393 (C.A.), refd to. [para. 5].

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, consd. [para. 14].

R. v. M. (1982), 70 C.C.C.(2d) 123 (Ont. Prov. Ct.), consd. [para. 15].

R. v. Elliott (1984), 57 A.R. 49 (Prov. Ct.), refd to. [para. 18].

R. v. Charles (1987), 61 Sask.R. 166; 36 C.C.C.(3d) 286 (C.A.), refd to. [para. 18].

R. v. Keel (K.N.) (1986), 59 Nfld. & P.E.I.R. 271; 178 A.P.R. 271 (Nfld. C.A.), refd to. [para. 18].

R. v. Blanchard (1988), 3 Y.R. 256; 11 M.V.R.(2d) 161 (C.A.), refd to. [para. 18].

R. v. B.B. (1986), 69 A.R. 203 (Prov. Ct.), refd to. [para. 18].

R. v. S.M. (1988), 81 N.S.R.(2d) 27; 203 A.P.R. 27; 40 C.C.C.(3d) 242 (C.A.), refd to. [para. 19].

R. v. Janvier (R.G.) (1996), 184 A.R. 119; 122 W.A.C. 119 (C.A.), refd to. [para. 20].

R. v. Farncombe (1984), 34 Sask.R. 161 (Q.B.), refd to. [para. 21].

R. v. Kime (1985), 41 Sask.R. 35 (Prov. Ct.), refd to. [para. 21].

R. v. Pithart (1987), 57 C.R.(3d) 144; 34 C.C.C.(3d) 150 (B.C. Co. Ct.), refd to. [para. 21].

R. v. Simpson (D.) (1994), 117 Nfld. & P.E.I.R. 110; 365 A.P.R. 110; 88 C.C.C.(3d) 377 (Nfld. C.A.), revd. [1995] 1 S.C.R. 449; 178 N.R. 145; 95 C.C.C.(3d) 96; 127 Nfld. & P.E.I.R. 171; 396 A.P.R. 171, consd. [para. 22].

R. v. Schemenauer (1986), 54 Sask.R. 171; 46 M.V.R. 268 (Q.B.), revd. (1987), 58 Sask.R. 244; 49 M.V.R. 205; 34 C.C.C.(3d) 573 (C.A.), refd to. [para. 25].

R. v. Germain (1984), 53 A.R. 264; 10 C.R.R. 232 (Q.B.), dist. [para. 26].

R. v. Erickson (1984), 56 B.C.L.R. 247; 13 C.C.C.(3d) 269 (C.A.), consd. [para. 29].

R. v. Cutforth (1987), 81 A.R. 213; 40 C.C.C.(3d) 253 (C.A.), consd. [para. 31].

R. v. Rowbottom (1982), 2 C.R. 254; 18 M.V.R. 202 (Nfld. Prov. Ct.), refd to. [para. 34].

Committee for Justice and Liberty Foun­da­tion et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, consd. [para. 43].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 118 C.C.C.(3d) 353; 151 D.L.R.(4th) 193, consd. [para. 44].

R. v. Clark (B.) (1997), 88 B.C.A.C. 216; 144 W.A.C. 216 (C.A.), consd. [para. 46].

R. v. B.K., [1995] 4 S.C.R. 186; 188 N.R. 338; 134 Sask.R. 279; 101 W.A.C. 279; 102 C.C.C.(3d) 18, consd. [para. 47].

R. v. Forsythe, [1980] 2 S.C.R. 268; 32 N.R. 520; 112 D.L.R.(3d) 385; 53 C.C.C.(2d) 225; 15 C.R.(3d) 280; 19 C.R.(3d) 261, refd to. [para. 51].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 24(1) [para. 13].

Authors and Works Noticed:

Abbott, P.C.J. (Alta.), Contempt of Court (1996), p. 12 [para. 9].

Canada, Canadian Judicial Council, Some Guidelines on the Use of Contempt Powers (1989), pp. 4 [para. 46]; 22 [para. 8].

Toselli, Vittorio C., Arbitrary Detention and Judicial Stay of Proceedings (1991), 80 C.R.(3d) 86, generally [para. 17].

Counsel:

Murray P. Stone, for the applicant;

Dennis Hrabcak (Alberta Justice), for the respondent.

This application was heard on August 10, 1999, by Johnstone, J., of the Alberta Court of Queen's Bench, Judicial District of Ed­monton, who delivered the following deci­sion on September 15, 1999.