R. v. Rogalsky, [1995] 4 S.C.R. 48

Ernest John Rogalsky, Erwin Sylvester Wiegers and Edward Tracey Schwandt Appellants

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Rogalsky

File No.: 24489.

1995: November 7.

Present: Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for saskatchewan

Constitutional law ‑‑ Charter of Rights ‑‑ Trial within a reasonable time ‑‑ Trial judge entering stay of proceedings on account of delay ‑‑ Court of Appeal properly finding delay not unreasonable and setting stay aside.

APPEAL from a judgment of the Saskatchewan Court of Appeal (1994), 1994 CanLII 4664 (SK CA), 95 C.C.C. (3d) 41, 125 Sask. R. 271, 81 W.A.C. 271, 36 C.R. (4th) 215, allowing the Crown's appeal from a stay of proceedings entered by the Court of Queen's Bench (1994), 1994 CanLII 5071 (SK QB), 118 Sask. R. 81. Appeal dismissed.

Mark Brayford and Hugh M. Harradence, for the appellants.

S. R. Fainstein, Q.C., and George Dolhai, for the respondent.

//Sopinka J.//

The judgment of the Court was delivered orally by

[1] Sopinka J. ‑‑ The length of the delay in this case is sufficient to raise the issue of reasonableness. We agree with the trial judge that, in particular, the delay in the continuation of the preliminary inquiry from December 10, 1992 to April 12, 1993 due to the late consolidation of charges by the Crown requires an explanation. We agree, however, with the majority of the Court of Appeal that the trial judge erred in attributing the entire period of this delay to the Crown. While the Crown must bear some responsibility for the adjournment of the preliminary inquiry, this did not justify a finding that the entire period of delay should be attributed to the Crown.

[2] The long period of the adjournment of four months was necessitated in order to accommodate the schedules of counsel. In this respect we adopt the following passage from the reasons of Cameron J.A.:

The Crown, of course, was prepared to continue . . . [b]ut that was not convenient to defence counsel. And so the judge, though he had the power to override their wishes and forge ahead, adjourned until April 12th to accommodate them.

((1994), 1994 CanLII 4664 (SK CA), 95 C.C.C. (3d) 41, at p. 55.)

[3] There is no evidence to support a conclusion that the consent of counsel to this adjournment constituted an acquiescence in the inevitable. Attribution of the entire period of delay to the Crown by the trial judge justified the intervention of the Court of Appeal. Taking into account that the entire period of four months cannot be attributed to the Crown and also taking into account all relevant circumstances, we agree with the majority of the Court of Appeal that the delay in this case was not unreasonable. Accordingly, the appeal is dismissed.

Judgment accordingly.

Solicitors for the appellants: Harradence, Longworth, Logue & Harradence, Prince Albert.

Solicitor for the respondent: George Thomson, Ottawa.