R. v. Abbass (T.S.), 2004 NSSC 109

• Judge: Coughlan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 29, 2004
• Jurisdiction: Nova Scotia
• Citations: 2004 NSSC 109;(2004), 225 N.S.R.(2d) 233 (SC)

R. v. Abbass (T.S.) (2004), 225 N.S.R.(2d) 233 (SC);

 713 A.P.R. 233

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. JN.012

Her Majesty the Queen (appellant) v. Todd Stephen Abbass (respondent)

(S.H. 214552A; 2004 NSSC 109)

Indexed As: R. v. Abbass (T.S.)

Nova Scotia Supreme Court

Coughlan, J.

June 8, 2004.

Summary:

The accused was charged with "exceeding the breathalyzer" and impaired driving. He applied for a stay of proceedings based on a violation of his right to be tried within a reasonable time (Charter, s. 11(b)).

The Nova Scotia Provincial Court, in a decision reported at 223 N.S.R.(2d) 142; 705 A.P.R. 142, allowed the application and stayed the charges. The Crown appealed.

The Nova Scotia Supreme Court allowed the appeal and ordered a new trial.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice - The accused was charged with exceeding the breathalyzer and impaired driving - He asked for the "first available trial date" and advised that he intended to make a Charter motion (ss. 8, 9) and to lead "evidence to the contrary" - There was a delay of 14.5 months between the swearing of the information and the date set for the trial - The accused sought a stay of proceedings based on a violation of his right to be tried within a reasonable time (Charter, s. 11(b)) - The trial judge allowed the application, finding that an institutional delay of approximately 13 months was well outside the guideline established in R. v. Morin (SCC) - Prejudice was inferred as the length of the delay was likely to interfere with the quality of evidence tendered - The Nova Scotia Supreme Court allowed the Crown's appeal - There was no evidence of actual prejudice - The accused did not attempt to obtain an earlier trial date - He was content with the pace of the proceedings - The trial judge erred in inferring prejudice from the passage of time.

Cases Noticed:

R. v. Hiscock (D.W.) (1999), 179 N.S.R.(2d) 350; 553 A.P.R. 350 (C.A.), refd to. [para. 5].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, refd to. [para. 3].

R. v. Sharma, [1992] 1 S.C.R. 814; 134 N.R. 368; 53 O.A.C. 288; 71 C.C.C.(3d) 184, refd to. [para. 15].

Counsel:

Catherine A. Cogswell, for the appellant;

Duncan R. Beveridge, Q.C., for the respondent.

This appeal was heard on April 29, 2004, before Coughlan, J., of the Nova Scotia Supreme Court, who released the following decision on June 8, 2004.