R. v. Kalanj (1989), 96 N.R. 191 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Danie Steve Kalanj v. Her Majesty The Queen Gerald Joseph Pion v. Her Majesty The Queen
(Nos. 19805; 19792)
Indexed As: R. v. Kalanj; R. v. Pion
Supreme Court of Canada
Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest and L’Heureux-Dubé, JJ.
June 22, 1989.
Summary:
In the spring of 1982 the accused were arrested without warrant but released the same day. They were told that charges would be laid against them and that a summons would issue. Eight months and 19 days later, an information was sworn alleging that the accused committed theft and conspiracy to commit theft. The trial did not commence until February 1985, some two years after the information was sworn. At trial the accused moved to quash the indictment on the ground that the delay in bringing the case to trial infringed their right to be tried within a reasonable time in s. 11(b) of the Charter.
The British Columbia County Court quashed the indictment on the ground that the eight month delay between arrest and release and the swearing of the information was unreasonable and infringed s. 11(b) of the Charter. The court held, however, that the two year delay between the swearing of the information and the trial was not unreasonable. The Crown appealed.
The British Columbia Court of Appeal, in a decision reported in 26 C.C.C.(3d) 136, allowed the appeal and ordered a trial on the merits. The Court of Appeal held that pre- information delay should not be considered in deciding whether the accused’s Charter rights were infringed. The accused appealed to the Supreme Court of Canada as of right under s. 618(2)(a) of the Criminal Code.
The Supreme Court of Canada, Lamer and Wilson, JJ., dissenting, dismissed the appeal. The Supreme Court held that pre-charge delay should not be considered in determining whether an accused was tried within a reasonable time within s. 11(b) of the Charter. The court further affirmed that the two year delay between the laying of the information and the trial was not unreasonable.
Lamer and Wilson, JJ., dissenting, would have held that the time for considering whether an accused’s s. 11(b) Charter right was infringed began to run from the time of service of a summons or execution of a warrant or an arrest with or without warrant. Wilson, J., stated that prejudice to the security interests of the accused arising purely from the fact of the imposition of the process upon him should not be considered in assessing the reasonableness of the delay.
Civil Rights – Topic 3125
Trials – Due process, fundamental justice and fair hearings – Criminal and quasi-criminal proceedings – General – The Supreme Court of Canada stated that the purpose of s. 11 of the Charter is to afford protection for the liberty and security interests of persons accused of crime – The court further stated that s. 11 is not, nor was it intended to be, the sole guarantor and protector of such rights – See paragraph 18.
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 Supreme Court of Canada held that the reckoning of time in considering whether a person has been accorded a trial within a reasonable time under s. 11(b) of the Charter will commence with the information or indictment, where no information has been laid, and will continue until the completion of trial – Pre-information delay will not be a factor – The court held that any exceptional cases where precharge delay might be relevant should be dealt with by reliance on the general rules of law and, where necessary, the other sections of the Charter – The court noted that an accused could invoke ss. 577(3) and 737(1) of the Criminal Code, where there has been pre-charge delay, as well as the doctrine of abuse of process – See paragraphs 16 to 21.
Civil Rights – Topic 3265
Trials – Due process, fundamental justice and fair hearings – Speedy trial – Accused’s right to – Within a reasonable time – What constitutes – Eight months and 19 days lapsed between the time of the accused’s arrest without warrant and release and the swearing of the information – A further two year delay resulted between the laying of the information and the trial – The Supreme Court of Canada held that the eight month pre-charge delay was irrelevant in considering whether the accused’s rights in s. 11(b) of the Charter were denied – The court affirmed that the two year delay until trial was not unreasonable – See paragraphs 1 to 22.
Civil Rights – Topic 8545
Canadian Charter of Rights and Freedoms – Interpretation – Charged with an offence – Section 11(b) of the Charter guaranteed any person “charged with an offence” the right to be tried within a reasonable time – The Supreme Court of Canada stated that the word “charged” was not one of fixed or unvarying meaning at law – The court discussed the various possible meanings and concluded that a person is “charged with an offence” within s. 11 of the Charter when an information is sworn alleging an offence against him, or where a direct indictment is laid against him where no information is sworn – See paragraphs 9 to 16.
Courts – Topic 3112
Supreme Court of Canada – Jurisdiction – Appeals from provincial courts – Criminal cases – Appeal where acquittal overturned on appeal – A trial judge quashed an indictment for breach of s. 11(b) of the Charter – On appeal the order was vacated and a trial on the merits ordered – The accused appealed to the Supreme Court as of right under s. 618(2)(a) of the Criminal Code, which provided an appeal for persons acquitted of an indictable offence whose acquittal was set aside on appeal – The Supreme Court of Canada held that since the accused were not acquitted, the Code would appear to bar a right of appeal – The court assumed jurisdiction, however, noting that had proceedings been stayed, and the stay reversed on appeal, an appeal would have been open under s. 618 (2)(a) – See paragraphs 7 to 8.
Cases Noticed:
R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 161, refd to. [paras. 8, 24, 42].
R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 8].
R. v. Chabot, [1980] 2 S.C.R. 985; 34 N.R. 361, refd to. [para. 11].
R. v. Boron (1983), 8 C.C.C.(3d) 25 (Ont. H.C.), refd to. [para. 12].
R. v. Young (1984), 3 O.A.C. 254; 13 C.C.C.(3d) 1, refd to. [para. 13].
R. v. Belton (1982), 19 Man.R.(2d) 132; 3 C.C.C.(3d) 427 (C.A.), refd to. [para. 13].
R. v. Heaslip, McGale, Stillwell and Tartaglia (1983), 9 C.C.C.(3d) 480 (Ont. C.A.), refd to. [para. 13].
Re Kott and The Queen (1983), 7 C.C.C.(3d) 317 (Que. C.A.), refd to. [para. 13].
R. v. Devji (1985), 19 C.C.C.(3d) 310 (B.C.C.A.), refd to. [para. 13].
Re Gray and The Queen (1982), 70 C.C.C.(2d) 62 (Sask. Q.B.), refd to. [para. 13].
R. v. Belcourt (1982), 69 C.C.C.(2d) 286 (B.C.S.C.), refd to. [para. 13].
R. v. Davis (1988), 86 N.S.R.(2d) 284; 218 A.P.R. 284 (N.S.S.C.), refd to. [para. 13].
R. v. Carter, [1986] 1 S.C.R. 981; 67 N.R. 375, refd to. [paras. 14, 24].
R. v. Mackintosh (1988), 26 B.C.L.R.(2d) 1, refd to. [para. 15].
R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 186 A.P.R. 183, refd to. [paras. 16, 42].
Argentina (Republic) v. Mellino, [1987] 1 S.C.R. 536; 76 N.R. 51, refd to. [para. 16].
R. v. Antoine (1983), 5 C.C.C.(3d) 97 (Ont. C.A.), refd to. [para. 20].
Re Garton and Whelan (1984), 14 C.C.C.(3d) 449 (Ont. H.C.), refd to. [para. 20].
R. v. Robins (1844), 1 Cox C.C. 114, refd to. [para. 21].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 7 [paras. 17, 21]; sect. 8, sect. 9, sect. 10, sect. 11 [paras. 17-19]; sect. 11(b) [paras. 1, 5-6, 8-10, 12-14, 16, 18, 20-22, 24-28, 32, 37, 41]; sect. 12, sect. 13 [para. 17].
Criminal Code, R.S.C. 1970, c. C-34, sect. 448 [para. 29]; sect. 455.1 [paras. 21, 31]; sect. 577(3) [para. 21]; sect. 602 [para. 7]; sect. 605(1)(a) [para. 8]; sect. 605(1)(c) [para. 7]; sect. 618(2)(a) [paras. 7-8]; sect. 737(1) [para. 21]; Forms 6, 7 [para. 29].
European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), 213 U.N.T.S., art. 6(1) [para. 35].
Authors and Works Noticed:
Mewett, An Introduction to the Criminal Process in Canada (1988) [para. 11].
Counsel:
E. David Crossin, for the appellant, Kalanj;
Donald J. Sorochan, for the appellant, Pion;
Colin Sweeney and Alexander Budlovsky, for the respondent.
Solicitors of Record:
Doust & Smith, Vancouver, B.C., for the appellant, Kalanj;
Swinton & Company, Vancouver, B.C., for the appellant, Pion;
The Ministry of the Attorney General for British Columbia, New Westminster, B.C., for the respondent.
This appeal was heard before Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest and L’Heureux-Dubé, JJ., of the Supreme Court of Canada on March 28, 1988. The decision of the Supreme Court was delivered in both official languages on June 22, 1989, when the following opinions were filed:
McIntyre, J. (La Forest and L’Heureux-Dubé, JJ., concurring) – see paragraphs 1 to 22;
Lamer, J., dissenting – see paragraphs 23 to 39;
Wilson, J., dissenting – see paragraphs 40 to 43.
Estey and Le Dain, JJ., took no part in the judgment.
