R. v. Wilson, (1986) 40 Man.R.(2d) 81 (QB)

• Judge: Morse, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 29, 1986
• Jurisdiction: Manitoba
• Citations: (1986), 40 Man.R.(2d) 81 (QB)

R. v. Wilson (1986), 40 Man.R.(2d) 81 (QB)

MLB headnote and full text

R. v. Wilson

(Suit No. 85-01-01042)

Indexed As: R. v. Wilson

Manitoba Court of Queen's Bench

Winnipeg Centre

Morse, J.

January 29, 1986.

Summary:

In 1979 the accused was charged with nine counts of gaming and betting offences. At trial, the Crown relied upon evidence obtained by wiretaps authorized by the Manitoba Court of Queen's Bench. The trial judge ruled that the wiretaps were unlawful and the charges were dismissed. The Crown appealed.

The Manitoba Court of Appeal, in a decision reported 13 Man.R.(2d) 155, allowed the appeal and ordered a new trial. The accused appealed.

The Supreme Court of Canada, in a decision reported 51 N.R. 321; 26 Man.R.(2d) 194, dismissed the appeal.

The accused applied for a stay of proceedings respecting the new trial on the ground that his right to a trial within a reasonable time as guaranteed by s. 11(b) of the Charter was violated. The trial judge dismissed the motion.

A retrial was commenced in Provincial Court. The accused sought an adjournment to seek judicial review of the wiretap authorization and to have opened the sealed packets containing the affidavits supporting the authorization application. The trial judge granted the adjournment.

The Manitoba Court of Queen's Bench, in a decision reported 32 Man.R.(2d) 125, proceeded with the review and ordered that the sealed packets be opened for scrutiny by the Court of Queen's Bench.

The Manitoba Court of Queen's Bench, in a decision unreported in this series of reports, upheld the validity of the authorizations.

In 1985 the trial recommenced. The accused applied to dismiss the information.

The Manitoba Provincial Court judge allowed the motion. The Crown applied to quash the dismissal and for an order of mandamus. The accused moved for an order to strike out the Crown's motion on the ground that his right to be tried within a reasonable time had been infringed (Charter, s. 11(b)).

The Manitoba Court of Queen's Bench, in the decision reported below, allowed the Crown's application in part. The court examined the nine counts, determined that five were insufficient and affirmed the Provincial Court judge's dismissal of the five charges. The court determined, however, that four of the counts were sufficient and ordered that the trial proceed on those counts. The court rejected the accused's argument that he was denied his right to a speedy trial and dismissed his motion based on this argument.

Civil Rights - Topic 3261

Trials, due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - General - The Manitoba Court of Queen's Bench referred to four factors to be considered in determining whether an accused's right to a speedy trial has been violated - See paragraph 17.

Civil Rights - Topic 3265

Speedy trial - Accused's right to - Within a reasonable time - What constitutes - An accused was charged with criminal offences in 1979 - A question over the legality of wiretaps in the case went on appeal and later to the Supreme Court of Canada - Subsequently applications were heard respecting judicial review of the wiretap authorization, opening of the sealed packets, and Charter violations - In 1985 the trial recommenced - The Manitoba Court of Queen's Bench held that the delay of almost seven years did not violate the accused's right to be tried within a reasonable time (Charter, s. 11(b)) - The court found that the greater part of the delay was caused by or consented to by the accused - See paragraphs 1 to 23.

Criminal Law - Topic 253

Abuse of process - What constitutes - Delay - The accused was charged with criminal offences in 1979 - A question arose over the legality of wiretaps in the case which went on appeal and later to the Supreme Court of Canada - Subsequently, applications were heard respecting judicial review of the wiretap authorization, opening of the sealed packets and Charter violations - In 1985, the trial recommenced - The Manitoba Court of Queen's Bench held that it would not be an abuse of process to allow the trial to proceed, notwithstanding the delay of almost seven years since the accused was charged - See paragraphs 24 to 27.

Criminal Law - Topic 971

Gaming and betting - Common gaming houses - Sufficiency of charges - The Manitoba Court of Queen's Bench examined nine counts of gaming and betting offences and determined which were sufficient and met the requirements of s. 510(3) of the Criminal Code - See paragraphs 29 to 41.

Criminal Law - Topic 4731

Procedure - Information or indictment, charge or count, indictable offences - Form and content - Date and description of offences - Gaming and betting offences - An accused was charged with nine counts of gaming and betting offences - The Manitoba Court of Queen's Bench examined the counts and held that five were insufficient and did not meet the requirements of s. 510(3) of the Criminal Code, because they did not state the precise activity or activities relied on by the Crown as constituting the offences - The court held that the other four counts were sufficient - See paragraphs 29 to 41.

Criminal Law - Topic 4738

Procedure - Information or indictment, charge or count, indictable offences - Objection to - Time for - An accused was charged with several counts of gaming and betting offences - When he appeared to plea he remained mute and a plea of "not guilty" was entered pursuant to s. 534(2) of the Criminal Code - Subsequently the accused objected to the counts - The Crown argued that s. 529(1) of the Code prevented the accused from objecting after plea without leave - The Manitoba Court of Queen's Bench held that the accused in this case did not "plead" within the meaning of s. 529(1) and was therefore able to object to the counts - See paragraphs 31 to 33.

Cases Noticed:

R. v. Wilson (1982), 13 Man.R.(2d) 155, 65 C.C.C.(2d) 507, affd. 51 N.R. 321; 26 Man.R.(2d) 194; 9 C.C.C.(3d) 97, refd to. [paras. 5, 6].

R. v. Wilson (1984), 32 Man.R.(2d) 125, refd to. [para. 8].

R. v. Deloli and Fowler (1985), 33 Man.R.(2d) 262 (Man. C.A.), refd to. [para. 17].

R. v. Antoine (1983), 41 O.R.(2d) 607 (Ont. C.A.), refd to. [para. 17].

Booker v. Wingo, [1972] 407 U.S. 514, refd to. [para. 17].

R. v. WIS Developments Corp. Ltd. et al. (1984), 53 N.R. 134; 53 A.R. 58; 12 C.C.C.(3d) 129, refd to. [paras. 21, 35].

R. v. Bingo Enterprises Ltd. et al. (1984), 29 Man.R.(2d) 78; 15 C.C.C. (3d) 261, refd to. [paras. 21, 30].

R. v. Jewitt, [1985] 6 W.W.R. 127; 61 N.R. 159 (S.C.C.), refd to. [para. 25].

R. v. Kissinger and Voszler (1972), 6 C.C.C.(2d) 212 (Alta. C.A.), refd to. [para. 36].

R. v. Mason (1972), 4 N.S.R.(2d) 295; 8 C.C.C.(2d) 546 (N.S.C.A.), refd to. [para. 36].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 11(b) [paras. 14 to 23].

Criminal Code of Canada, R.S.C., 1970, c. C-34, sect. 179, sect. 186 [para. 36]; sect. 510(3) [para. 30]; sect. 529(1) [para. 31]; sect. 534(2) [para. 32]; sect. 519(1)(a) [para. 38].

Counsel:

E.P. Schachter, for the Crown;

R.L. Pollack, for the accused.

This application was heard before Morse, J., of the Manitoba Court of Queen's Bench, who delivered the following decision on January 29, 1986: