R. v. Asiala (J.I.), (2010) 498 A.R. 123 (QB)

• Judge: McIntyre, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 24, 2010
• Citations: (2010), 498 A.R. 123 (QB);2010 ABQB 450

R. v. Asiala (J.I.) (2010), 498 A.R. 123 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JL.056

Her Majesty the Queen (respondent) v. Jouko Ilmari Asiala (applicant)

(071326144U2; 2010 ABQB 450)

Indexed As: R. v. Asiala (J.I.)

Alberta Court of Queen's Bench

Judicial District of Calgary

McIntyre, J.

July 6, 2010.

Summary:

The accused was charged with impaired driving offences. Thirty-two months after being charged, the accused applied for a stay under s. 24(1) of the Charter, asserting that his s. 11(b) right to a trial within a reasonable time had been violated.

The Alberta Court of Queen's Bench allowed the application and stayed the proceedings.

Civil Rights - Topic 3264

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Denial of right - On October 23, 2007, the accused was charged with impaired driving offences - On December 31, 2008, the trial commenced and arguments were heard on the accused's application to exclude the certificate of analysis - The judge reserved decision and adjourned the trial to January 26, 2009 - On January 26, 2009, the judge, not yet being ready to give decision, adjourned the trial to May 21, 2009 - On May 21, 2009, the judge ruled that the certificate was inadmissible, but did not address the Charter arguments as he had forgotten that the issue had been raised - The trial was adjourned to June 9, 2009, to set a date for decision - The decision date was set for June 16, 2009 - Further adjournments ensued - On June 30, 2009, the accused applied for prohibition - That application and a stay application were argued on October 2, 2009 - The prohibition was denied - Further adjournments ensued - On February 2, 2010, the trial was adjourned to March 17, 2010 because the judge was on medical leave - On March 17, 2010, the judge was still unavailable - The Crown advised that it was going to apply to have a new trial judge - It did not proceed with the application - After three more adjournments, the trial set was set for June 22, 2010 - The accused applied for a stay of proceedings on the basis that his s. 11(b) Charter right to a trial within a reasonable time had been infringed - The Alberta Court of Queen's Bench allowed the application - The accused waived 3.5 months of the delay - The delay from March 17, 2010 to June 22, 2010, had to be counted against the Crown - After the adjournment on February 2, 2010, something should have been done by the Crown - Prejudice could be inferred from the length of the delay and the lack of justification for the delay - Moreover, the accused's affidavit was evidence of actual prejudice.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - [See Civil Rights - Topic 3264 ].

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - [See Civil Rights - Topic 3264 ].

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - The accused was charged with impaired driving offences - Thirty-two months later, and 18 months after the accused's argument to exclude the certificate of analysis, a decision on the admissibility of the certificate had not been rendered - The accused applied for a stay under s. 24(1) of the Charter, asserting that his s. 11(b) right to a trial within a reasonable time had been violated - The Crown asserted that the delays were caused by the accused's application for prohibition and this application for Charter relief - The Alberta Court of Queen's Bench stated that the accused's application did not suspend the trial judge's jurisdiction - The trial judge could have issued a written decision or asked the parties to appear for an oral decision - See paragraph 15.

Cases Noticed:

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

R. v. Batchelor, [1978] 2 S.C.R. 988; 18 N.R. 416, refd to. [para. 15].

Canadian National Transportation Ltd. and Canadian National Railway Co. v. Canada (Attorney General); Canadian Pacific Express and Transport Ltd. and Paulley v. Canada (Attorney General) (1984), 55 A.R. 199 (Q.B.), revd. (1985), 68 A.R. 380 (C.A.), affd. [1986] 2 S.C.R. 711; 72 N.R. 75; 75 A.R. 238, refd to. [para. 15].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 18].

R. v. MacDougall (P.A.), [1998] 3 S.C.R. 45; 231 N.R. 147; 168 Nfld. & P.E.I.R. 83; 517 A.P.R. 8, refd to. [para. 18].

R. v. Godin (M.), [2009] 2 S.C.R. 3; 389 N.R. 1; 252 O.A.C. 377; 2009 SCC 26, refd to. [para. 20].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 21].

R. v. Gallant (C.A.), [1998] 3 S.C.R. 80; 231 N.R. 190; 168 Nfld. & P.E.I.R. 126; 517 A.P.R. 126, refd to. [para. 29].

Counsel:

Shirley A. Jackson, Q.C. (Alberta Justice), for the Crown;

Mark Gottlieb, for the applicant.

This application was heard on June 24, 2010, by McIntyre, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on July 6, 2010.