R. v. Smith

52 C.C.C. (3d) 97



theft of a sum exceeding $1,000...delay in commencing the preliminary inquiry ...info laid on January 22, 1987..remanded to April 14, 1987...date for the preliminary inquiry August 10 to 14, 1987 ...June 25, 1987, the Crown was informed that no special sittings would be conducted by Provincial judges during the months of July or August...the investigating officer, would not be [page101] available to assist with the conduct of the inquiry except during the week of December 16 to 23, 1987, or after April, 1988...agreed to conduct the preliminary inquiry on December 16 to 23, 1987...no judge was available at this time. The problem in both cases was that the hearing was scheduled during a holiday period. new date of May 9 to 13, 1988, was agreed upon ...expressing some reservations about the "excessive delay"...December 21, 1987, the appellant brought an originating notice of motion in the Court of Queen's Bench for Manitoba seeking an order staying the proceedings on the grounds of a s. 11(b) Charter violation



The first two dates proposed were during holiday periods in which no judge was available. For reasons that were not made known to this court, a Provincial Court judge from Winnipeg was to conduct the hearing rather than a local Provincial Court judge...the principal reason for the delay was not this institutional limitation, but the desire by the Crown to schedule the hearing at a time when the investigating officer, Constable Schnell, could assist the Crown for the duration of the hearing...The Crown understandably desired the attendance and assistance of the investigating officer. However, such a desire on the part of the Crown must not be permitted to override an individual's s. 11(b) Charter rights. ...apart from agreeing to a date, the other actions of Mr. Menzies on behalf of the appellant rebut any possible [page110] inference that he waived his s. 11(b) rights in relation to the period up until December 21, 1987. Rather than demonstrating waiver of his rights, the appellant demonstrated his desire to move the proceedings along quickly.