R. v. Barros (R.), (2013) 562 A.R. 37 (QB)

• Judge: Ouellette, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 23, 2013
• Citations: (2013), 562 A.R. 37 (QB);2013 ABQB 210

R. v. Barros (R.) (2013), 562 A.R. 37 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AP.122

Her Majesty the Queen (Crown) v. Ross Barros (accused)

(050551845Q1; 2013 ABQB 210)

Indexed As: R. v. Barros (R.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ouellette, J.

April 5, 2013.

Summary:

Barros was a private investigator. He was hired by a lawyer (Tarrabain) who represented an accused drug trafficker. On May 13, 2005, Barros was arrested and charged with attempting to obstruct justice and extortion. The fact that Barros took investigative steps to identify a confidential police informant in relation to Tarrabain's client was the basis of the charge of attempting to obstruct justice. The extortion charge stemmed from a meeting and discussions with the police officer investigating Tarrabain's client. Barros was acquitted at trial (December 21, 2007). The Crown appealed.

The Alberta Court of Appeal, in a decision reported at (2010), 477 A.R. 127; 483 W.A.C. 127, granted the Crown appeal and ordered a retrial. Barros appealed.

The Supreme Court of Canada, in a decision reported at (2011), 421 N.R. 270; 513 A.R. 1; 530 W.A.C. 1, granted Barros' appeal but ordered a retrial on the charges. The retrial was scheduled for June 2013. The total time from the charge to the expected completion of the retrial exceeded eight years. Barros applied to have the charges against him stayed. The issue was whether the delay in the prosecution and trial of the charges impaired Barros' right to make full answer and defence contrary to s. 7 of the Charter and was unreasonable contrary to ss. 7 and 11(b) of the Charter.

The Alberta Court of Queen's Bench found that the total delay was unreasonable and Barros' right to be tried within a reasonable time pursuant to s. 11(b) had been breached. The minimum remedy was a stay of proceedings. The court also found that the combined total delay and the impaired ability of Barros to exercise his s. 7 right to make full answer and defence following the death of Tarrabain resulted in a breach of s. 7. This was an exceptional situation that required the exceptional remedy of a stay of proceedings.

Civil Rights - Topic 3130

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Delay (Charter, s. 7) - Barros was a private investigator - He was hired by a lawyer (Tarrabain) who represented an accused drug trafficker - On May 13, 2005, Barros was arrested and charged with attempting to obstruct justice and extortion - The fact that Barros took investigative steps to identify a confidential police informant in relation to Tarrabain's client was the basis of the charge of attempting to obstruct justice - The extortion charge stemmed from a meeting and discussions with the police officer investigating Tarrabain's client - Barros was acquitted at trial (December 21, 2007) - The Court of Appeal granted the Crown's appeal and ordered a retrial - The Supreme Court of Canada granted Barros' appeal but ordered a retrial on the charges - The retrial was scheduled for June 2013 - The total time from the charge to the expected completion of the retrial exceeded eight years - The Alberta Court of Queen's Bench found that there was a breach of Barros' s. 7 Charter rights - There were two criteria relevant to that issue: 1. general abuse of process, and 2. the guarantee of the right to make full answer and defence - The death of Tarrabain and the Crown's refusal to enter his anticipated testimony by agreement meant Barros was no longer in a position to make full answer and defence - The question of abusive process or the significant passage of time was also relevant to this case - For a s. 7 analysis all of the appeal periods were taken into consideration - The total delay exceeded eight years - The facts of this case were an exceptional situation that required a stay of proceedings - See paragraphs 126 to 135.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Civil Rights - Topic 3130 ].

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - [See Civil Rights - Topic 3130 ].

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - In May 2005, Barros was arrested and charged with attempting to obstruct justice and extortion - He was acquitted at trial (December 21, 2007) - The Court of Appeal granted the Crown's appeal and ordered a retrial - The Supreme Court of Canada granted Barros' appeal but ordered a retrial on the charges - The retrial was scheduled for June 2013 - The total time from the charge to the expected completion of the retrial exceeded eight years - Barros applied to have the charges stayed - The issue was whether the delay violated Barros' ss. 7 and 11(b) Charter rights - The Crown argued that Barros waived the period between the decision of the Court of Appeal, where the acquittals were overturned and a new trial ordered, and the decision of the Supreme Court of Canada, because the accused requested no new trial date be set until a decision was received from the Supreme Court of Canada - The Alberta Court of Queen's Bench found that the Crown had not satisfied the burden of showing that there was a clear and unequivocal waiver, especially in light of the fact that the Crown consented to the adjournment while awaiting the decision of the Supreme Court - See paragraphs 49 to 51.

Civil Rights - Topic 3264

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Denial of right - Barros was a private investigator - He was hired by a lawyer (Tarrabain) who represented an accused drug trafficker - On May 13, 2005, Barros was arrested and charged with attempting to obstruct justice and extortion - The fact that Barros took investigative steps to identify a confidential police informant in relation to Tarrabain's client was the basis of the charge of attempting to obstruct justice - The extortion charge stemmed from a meeting and discussions with the police officer investigating Tarrabain's client - Barros was acquitted at trial (December 21, 2007) - The Court of Appeal granted the Crown's appeal and ordered a retrial - The Supreme Court of Canada granted Barros' appeal but ordered a retrial on the charges - The retrial was scheduled for June 2013 - The total time from the charge to the expected completion of the retrial exceeded eight years - The Alberta Court of Queen's Bench found that the total delay in this case was unreasonable and Barros' right to be tried within a reasonable time pursuant to s. 11(b) of the Charter had been breached - The length of the delay was striking and grossly excessive - The length of the delay in and of itself resulted in an inference of prejudice - There was uncontested and significant affidavit evidence of prejudice to the accused's personal circumstances - The delay had caused real prejudice as an essential key witness (Tarrabain) had died - That prejudice could not be remedied as the Crown refused to admit the anticipated evidence of Tarrabain by agreement - The appropriate remedy was a stay of proceedings - See paragraphs 47 to 125.

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 3270.02

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Delay between trials (incl. appellate delay) - In May 2005, Barros was arrested and charged with attempting to obstruct justice and extortion - He was acquitted at trial (December 21, 2007) - The Court of Appeal granted the Crown's appeal and ordered a retrial - The Supreme Court of Canada granted Barros' appeal but ordered a retrial on the charges - The retrial was scheduled for June 2013 - The total time from the charge to the expected completion of the retrial exceeded eight years - Barros applied to have the charges stayed - The issue was whether the delay violated Barros' ss. 7 and 11(b) Charter rights - The Crown argued that s. 11(b) did not apply to the four-year delay for appeals to the Court of Appeal and the Supreme Court of Canada - The Alberta Court of Queen's Bench held that the entire appeal period formed part of the delay which had to be assessed under s. 11(b) - The delay period would also be a consideration under s. 7 of the Charter - See paragraphs 67 to 95.

Civil Rights - Topic 3270.04

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Delay prior to retrial - [See Civil Rights - Topic 3264 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3130 and Civil Rights - Topic 3264 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3130 ].

Criminal Law - Topic 4486

Procedure - Trial - Stay of proceedings - [See Civil Rights - Topic 3130 and Civil Rights - Topic 3264 ].

Cases Noticed:

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 130 D.L.R.(4th) 235, refd to. [para. 21].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, appld. [para. 25].

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. 26].

Argentina (Republic) v. Mellino, [1987] 1 S.C.R. 536; 76 N.R. 51; 80 A.R. 1; 40 D.L.R.(4th) 74, refd to. [para. 28].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183; 39 D.L.R.(4th) 481, refd to. [para. 28].

R. v. Kalanj; R. v. Pion, [1989] 1 S.C.R. 1594; 96 N.R. 191, refd to. [para. 28].

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. 83; 165 D.L.R.(4th) 193, refd to. [para. 30].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81, refd to. [para. 33].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 34].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 38].

R. v. Potvin (R.), [1993] 2 S.C.R. 880; 155 N.R. 241; 66 O.A.C. 81; 105 D.L.R.(4th) 214, consd. [para. 69].

R. v. Ryan (N.P.) (2013), 438 N.R. 80; 324 N.S.R.(2d) 205; 1029 A.P.R. 205; 353 D.L.R.(4th) 387; 2013 SCC 3, consd. [para. 88].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 90].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422, refd to. [para. 91].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 24 D.L.R.(4th) 536, refd to. [para. 91].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161; 174 D.L.R.(4th) 111, refd to. [para. 91].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 91].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 91].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81; 142 D.L.R.(4th) 595, refd to. [para. 129].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 18]; sect. 11(b) [para. 19]; sect. 24(1) [para. 20].

Authors and Works Noticed:

Doherty, D.H., More Flesh on the Bones: The Continued Judicial Interpretation of s. 11(b) of the Canadian Charter of Rights and Freedoms (1984), Canadian Bar Association - Ontario, Annual Institute on Continuing Legal Education, p. 9 [para. 72].

Counsel:

Lisa C. Tchir and Richard Tchir (Alberta Justice), for the Crown;

Hersh Wolch, Q.C. (Wolch Hursh deWit Silverberg & Watts), for the accused.

This application was heard on January 23, 2013, before Ouellette, J., of the Alberta Court of Queen's Bench,  Judicial  District  of Edmonton, who delivered the following memorandum of decision on April 5, 2013.