R. v. Young, (1984) 3 O.A.C. 254 (CA)

• Judge: Howland, C.J.O., Dubin and Martin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 27, 1984
• Jurisdiction: Ontario
• Citations: (1984), 3 O.A.C. 254 (CA);1984 CanLII 2145 (NS CA);1984 CanLII 2145 (ON CA);46 OR (2d) 520;13 CCC (3d) 1;40 CR (3d) 289;[1984] CarswellOnt 57;[1984] OJ No 3229 (QL);10 CRR 307;12 WCB 254;3 OAC 254

R. v. Young (1984), 3 O.A.C. 254 (CA)

MLB headnote and full text

R. v. Young

Indexed As: R. v. Young

Ontario Court of Appeal

Howland, C.J.O., Dubin and Martin, JJ.A.

June 27, 1984.

Summary:

On April 5, 1983, an information was sworn charging the accused with fraud contrary to s. 338 of the Criminal Code of Canada and with making a false affidavit contrary to s. 122 of the Code. The subject matter of the charge related to an affidavit sworn by the accused on April 30, 1976, in order to obtain a tax exemption under the Land Speculation Tax Act. At trial in May 1983, the proceedings were stayed on the basis that the accused's right to be tried within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms was violated. The Crown appealed.

The Ontario Court of Appeal dismissed the appeal and affirmed the stay of proceedings. The court held that although the trial judge erred in staying proceedings by invoking s. 11(b) of the Charter, he was in fact correct in staying proceedings because to put the accused on trial "would put his liberty at risk in a manner contrary to those principles of fundamental justice which are the hallmark of our criminal justice system and now entrenched in s. 7 of the Charter".

Civil Rights - Topic 3265

Trials - Speedy trial - "Within a reasonable time" - What constitutes - An accused was charged in April 1983 with offences which allegedly occurred in 1976 - In May 1983 proceedings were stayed at trial on the ground that the accused's right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms was violated - On an appeal by the Crown, the Ontario Court of Appeal held that the trial judge erred in staying the proceedings on this ground, because there was no delay between the charge and the time of the trial such as to violate s. 11(b) - See paragraphs 39 to 64.

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 Ontario Court of Appeal agreed with the proposition that in determining whether a post-charge delay in bringing an accused to trial is reasonable (such as not to violate the right to be tried within a reasonable time as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms) it is appropriate for the court to take into consideration factors which preceded the institution of proceedings - See paragraphs 54 to 64.

Civil Rights - Topic 8461

Canadian Charter of Rights and Freedoms - Interpretation - General - The Ontario Court of Appeal stated that the provisions of the Canadian Charter of Rights and Freedoms should be given a broad and liberal interpretation to promote its purposes and objectives, and its impact should not be stultified by a narrow and technical interpretation - The court warned, however, that a court should not give an interpretation to a section of the Charter which it will not reasonably bear - See paragraph 40.

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Principles of fundamental justice - The Ontario Court of Appeal discussed the meaning of the phrase "the principles of fundamental justice" as it appeared in s. 7 of the Canadian Charter of Rights and Freedoms, in a case where proceedings were stayed because to proceed would have put an accused's liberty at risk contrary to the principles of fundamental justice - See paragraphs 65 to 105.

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Principles of fundamental justice - The Canadian Charter of Rights and Freedoms, s. 7, provided that a person may not be deprived of life, liberty and security, except in accordance with the principles of fundamental justice - The Ontario Court of Appeal stated that the principles of fundamental justice referred to are not limited to the right to a fair hearing in accordance with the principles of natural justice - See paragraphs 64 to 74.

Criminal Law - Topic 255

General principles - Abuse of process - Power of court to prevent an abuse of process and to grant an accused a stay of proceedings - The Ontario Court of Appeal reviewed the power of the court to stay proceedings on the ground of abuse of process - See paragraphs 82 to 86.

Criminal Law - Topic 255

General principles - Abuse of process - Power of court to prevent an abuse of process and grant an accused a stay of proceedings - Where principles of fundamental justice violated - The Ontario Court of Appeal stated that there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie and community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings - The court warned, however, that this power should only be exercised in the clearest of cases - See paragraph 87.

Criminal Law - Topic 255

General principles - Abuse of process - Power of court to prevent an abuse of process and to grant and accused a stay of proceedings - Where principles of fundamental justice violated - The Ontario Court of Appeal affirmed a stay of proceedings of a criminal trial where to put the accused on trial "would put his liberty at risk in a manner contrary to the principles of fundamental justice which are the hallmark of our criminal justice system and now entrenched in s. 7 of the Canadian Charter of Rights and Freedoms" - See paragraphs 65 to 105.

Criminal Law - Topic 255

General principles - Abuse of process - Power of court to prevent an abuse of process and grant an accused a stay of proceedings - Where interference with right to make full answer and defence - The Ontario Court of Appeal stated that absent any finding that a delay in the institution of proceedings was for the ulterior purpose of depriving an accused of the opportunity of making full answer and defence, delay in itself, even delay resulting in the impairment of the ability to make full answer and defence is not the basis for a stay of process - See paragraph 88.

Words and Phrases

Right to be tried within a reasonable time - The Ontario Court of Appeal discussed the meaning of the phrase the "right to be tried within a reasonable time" as it was used in s. 11(b) of the Canadian Charter of Rights and Freedoms - See paragraphs 39 to 64.

Words and Phrases

Principles of fundamental justice - The Ontario Court of Appeal discussed the meaning of the phrase the "principles of fundamental justice" as it was used in s. 7 of the Canadian Charter of Rights and Freedoms - See paragraphs 65 to 105.

Cases Noticed:

R. v. Beason (1983), 43 O.R.(2d) 65, refd to. [para. 4].

United States v. Marion (1971), 404 U.S. 307, consd. [paras. 44, 78].

United States v. MacDonald (1982), 102 S.Ct. 1497, refd to. [para. 46].

Columbia v. Craig Prov. J., and Carter (1983), 36 C.R.(3d) 346, consd. [para. 48].

R. v. H.W. Corkum Construction Co. Limited (1983), 57 N.S.R.(2d) 241; 120 A.P.R. 241; 5 C.C.C.(3d) 575, consd. [para. 51].

R. v. Boron (1983), 36 C.R.(3d) 329, consd. [para. 55].

R. v. Antoine (1983), 5 C.C.C.(3d) 97, consd. [para. 59].

R. v. Heaslip (1984), 36 C.R.(3d) 309, refd to. [para. 63].

Connelly v. Director of Public Prosecutions, [1964] A.C. 1254, refd to. [para. 65].

Duke v. R. (1972), 7 C.C.C.(2d) 474, consd. [para. 67].

Re Potma and R. (1983), 2 C.C.C.(3d) 383, consd. [para. 70].

Dickey v. Florida (1970), 398 U.S. 30, consd. [para. 79].

United States v. Lovasco (1977), 431 U.S. 783, consd. [para. 80].

R. v. Rourke (1977), 16 N.R. 181; 35 C.C.C.(2d) 129, consd. [para. 82].

R. v. Amato (1982), 42 N.R. 487; 69 C.C.C.(2d) 31, consd. [para. 85].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 2(e) [para. 67]; sect. 2(f) [para. 72].

Canadian Charter of Rights and Freedoms, sect. 7 [paras. 64 to 105]; sect. 11(b) [paras. 5, 39 to 64].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 122, sect. 338 [para. 37].

Land Speculation Tax Act, S.O., 1974, c. 17 generally [para. 3]; sect. 4(g)(i) [para. 8].

United States Constitution, Sixth Amendment [para. 44].

Authors and Works Noticed:

Doherty, David, "Boron: Is Pre-Charge Delay Relevant in Determining Whether s. 11(b) Has Been Infringed?" (1984), 36 C.R.(3d) 338, p. 342 [par. 58].

Friedland, M.L., "Legal Rights Under The Charter", 24 Crim. L.Q. 430, pp. 432, 433 [para. 75].

Tarnopolsky, "The New Canadian Charter of Rights and Freedoms as Compared and Contrasted with the American Bill of Rights" (1983), 5 Human Rights Quarterly, pp. 235, 236 [para. 77].

Counsel:

Kenneth L. Campbell, for the Crown;

Eric Murray, Q.C., and D.G. Price, for Young.

This appeal was heard before Howland, C.J.O., Dubin and Martin, JJ.A., of the Ontario Court of Appeal on January 25, 26 and 27, 1984. The decision of the court was delivered by Dubin, J.A., and released on June 27, 1984: