R. v. Barros (R.),

• Judge: C,Hillier,Paperny
• Neutral Citation: 2014 ABCA 367
• Citation: (2014), 584 A.R. 362,2014 ABCA 367,584 AR 362,(2014), 584 AR 362,584 A.R. 362
• Date: 04 September 2014
• Court: Court of Appeal (Alberta)

R. v. Barros (R.) (2014), 584 A.R. 362; 623 W.A.C. 362 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. NO.051

Her Majesty the Queen (appellant) v. Ross Barros (respondent)

(1303-0101-A; 2014 ABCA 367)

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

Alberta Court of Appeal

Côté and Paperny, JJ.A., and Hillier, J.(ad hoc)

November 12, 2014.

Summary:

On May 13, 2005, Barros was arrested and charged with attempting to obstruct justice and extortion. He was acquitted at trial on 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 new trial. 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, allowed Barros' appeal in part, but affirmed the order for a new trial on the two charges. The retrial was scheduled for June 2013. Barros applied to have the charges against him stayed for unreasonable delay.

The Alberta Court of Queen's Bench, in a decision reported at (2013), 562 A.R. 37, found that the delay from the time of charge to the time of the scheduled retrial was unreasonable and breached Barros' rights under s. 11(b) and s. 7 of the Charter. The court ordered a stay of proceedings. The Crown appealed.

The Alberta Court of Appeal allowed the appeal.

Civil Rights - Topic 3130

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Delay (Charter, s. 7) - [See Civil Rights - Topic 3265 ].

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 3265 ].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - Barros was a private investigator - He was hired by a lawyer (Tarrabain) who represented an accused drug trafficker (Qureshi) - On May 13, 2005, Barros was charged with obstruction of justice for taking investigative steps to identify a confidential police source, and with extortion for attempting to induce Det. Brezinski to withdraw the criminal proceedings against Qureshi - Barros was acquitted on December 21, 2007 - The Alberta Court of Appeal granted the Crown's appeal and ordered a new trial - Barros' appeal to the Supreme Court of Canada was partially successful, but the court affirmed the order for a new trial - The retrial was scheduled for June 2013 - Barros applied to have the charges stayed for unreasonable delay - The chambers judge found that the delay from the time of charge to the time of the scheduled retrial was unreasonable and breached Barros' s. 11(b) and s. 7 Charter rights - The chambers judge concluded that all of the appellate delay relating to the appeals both to the Court of Appeal and the Supreme Court of Canada should be considered as part of the s. 11(b) analysis - The chambers judge also concluded that the delay caused real prejudice to Barros because a potential witness (Tarrabain) had died - The chambers judge ordered a stay of proceedings - The Crown appealed - The Alberta Court of Appeal allowed the appeal - The four year period of appellate delay did not enter into the s. 11(b) analysis - The chambers judge disregarded several adjournment requests by the accused and evidence that the unavailability of defence counsel led to an increase in the time required to schedule the retrial - The total delay attributable to the accused was 16 months - After deducting the inherent time requirements and the delay attributable to the accused, the total institutional delay was less than 20 months - The alleged prejudice did not tip the balance toward the granting of a stay - Barros' right to make full answer and defence had not been severely prejudiced by the death of Tarrabain, whose evidence would be possibly irrelevant, and indirect and corroborative at best - See paragraphs 41 to 107.

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 3265 ].

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) - [See Civil Rights - Topic 3265 ].

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 3265 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3265 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3265 ].

Criminal Law - Topic 4486

Procedure - Trial - Stay of proceedings - [See Civil Rights - Topic 3265 ].

Cases Noticed:

R. v. Potvin (R.), [1993] 2 S.C.R. 880; 155 N.R. 241; 66 O.A.C. 81; 83 C.C.C.(3d) 97, consd. [para. 14].

R. v. Koruz et al. (1992), 125 A.R. 161; 14 W.A.C. 161 (C.A.), refd to. [para. 17].

R. v. C.D. (2014), 584 A.R. 222; 623 W.A.C. 222; 2014 ABCA 333, refd to. [para. 18].

R. v. Konstantakos (G.) (2014), 315 O.A.C. 123; 2014 ONCA 21, refd to. [para. 18].

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. 22].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 23].

R. v. Gallagher (R.), [1993] 2 S.C.R. 861; 155 N.R. 215; 64 O.A.C. 207, refd to. [para. 42].

R. v. Frazer (D.B.), [1993] 2 S.C.R. 866; 155 N.R. 220; 64 O.A.C. 202, refd to. [para. 42].

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, refd to. [para. 43].

R. v. Siemens (F.G.) (2000), 260 A.R. 57 (Q.B.), refd to. [para. 44].

United States of America v. Commisso et al. (2000), 129 O.A.C. 166; 47 O.R.(3d) 257, refd to. [para. 44].

R. v. TFE Industries Inc. et al. (2001), 243 N.B.R.(2d) 109; 631 A.P.R. 109; 2001 NBCA 104, refd to. [para. 44].

R v. Desrosiers, 2012 QCCQ 11526, refd to. [para. 44].

R. v. Taylor (B.) et al. (2009), 288 Nfld. & P.E.I.R. 60; 888 A.P.R. 60; 2009 NLCA 43, refd to. [para. 44].

R. v. Nikkel (D.J.) (2009), 240 Man.R.(2d) 1; 456 W.A.C. 1; 2009 MBCA 8, refd to. [para. 44].

R. v. Williams (C.) (2009), 248 O.A.C. 323; 244 C.C.C.(3d) 138; 2009 ONCA 342, refd to. [para. 44].

R. v. Darwish (W.H.) (2010), 258 O.A.C. 272; 2010 ONCA 124, refd to. [para. 44].

R. v. Milani (D.) (2014), 320 O.A.C. 384; 2014 ONCA 536, refd to. [para. 44].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 99].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 99].

R. v. Pelech (T.G.) (2012), 522 A.R. 235; 544 W.A.C. 235; 2012 ABCA 134, refd to. [para. 100].

R. v. Ali-Greig (S.), [2014] O.A.C. Uned. 222; 2014 ONCA 241, refd to. [para. 100].

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, refd to. [para. 105].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 21]; sect. 11(b) [para. 20].

Counsel:

J.B. Dartana, for the appellant;

H.E. Wolch, Q.C., and L.M. Rideout, for the respondent.

This appeal was heard on September 4, 2014, before Côté and Paperny, JJ.A., and Hillier,

J.(ad hoc), of the Alberta Court of Appeal. The Court of Appeal delivered the following memorandum of judgment on November 12, 2014.