R. v. Chan (A.H.) et al., 2003 ABQB 759

• Judge: Sulyma, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 08, 2003
• Citations: 2003 ABQB 759;(2003), 342 A.R. 201 (QB)

R. v. Chan (A.H.) (2003), 342 A.R. 201 (QB)

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. SE.032

Her Majesty the Queen (plaintiff) v. Alex Chan, Sai Ming Fok, Tien Lai Lam, Willy T. Lau, Hiep Quang Le, Thi Hoang Le, Anh le Tran, Bao Minh Tran, Trung Quoc Tran, Adrian Tiburico Vergara, and Josephine Soo Yun Voon (defendants)

(Action No. 0003 2182-C5; 2003 ABQB 759)

Indexed As: R. v. Chan (A.H.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Sulyma, J.

September 8, 2003.

Summary:

Several accused were charged with conspiracy to traffic in cocaine. They applied for a stay of proceedings, claiming that their right to be tried within a reasonable time (Charter, s. 11(b)) was violated.

The Alberta Court of Queen's Bench stayed the proceedings against the accused, holding that their s. 11(b) right was violated.

Civil Rights - Topic 3264

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Denial of right - The Alberta Court of Queen's Bench stayed proceedings against several accused charged with conspiracy, holding that their right to be tried within a reasonable time (Charter, s. 11(b)) was denied - The 40 months' delay from the laying of charges until the s. 11(b) application was unreasonable - Crown-action delay was significant (40.5 weeks) and mostly resulted from a basic misunderstanding by the Crown and police of their disclosure obligation - They failed to have an adequate protocol respecting disclosure and, at least initially, failed to dedicate adequate resources to disclosure - The Crown made erroneous and misleading statements about the state of disclosure - The statements influenced the manner in which the court proceeded and may have affected the accused's tactical decisions - The discovery of 38 boxes of material two years after the accused's arrest and almost a year after the trial began was "nothing short of shocking and outrageous." - This was made worse by the Crown's position respecting disclosure of some of those documents - Defence delay amounted to 17.5 weeks - The Crown's actions seriously prejudiced the accused - Most accused were incarcerated for about a year - The Crown actively opposed bail or sought revocation of bail - Upon release, the accused were subject to onerous bail conditions.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The Alberta Court of Queen's Bench stated that when an accused was in custody, less institutional or Crown delay was acceptable - See paragraph 404.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The accused applied for a stay of proceedings, claiming that their right to be tried within a reasonable time was violated - The Alberta Court of Queen's Bench rejected the argument that where the dominant cause of delay was a consequence of Crown action or inaction, other activity occurring within those Crown-action delay periods was irrelevant for purposes of the Morin (S.C.C.) delay calculations - The court did not accept that Crown-action delay necessarily absorbed inherent or defence delay - Morin mandated that all reasons for delay be examined and weighed in determining whether the delay was unreasonable - See paragraphs 407 and 408.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The Alberta Court of Queen's Bench stated that "The summer recess ordinarily is considered a period of inherent delay" - See paragraph 413.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - On February 28, 2000, the trial of several accused was scheduled for November 1, 2000 - A new courtroom had to be constructed to accommodate the trial - The accused claimed that their right to be tried within a reasonable time was denied - The Alberta Court of Queen's Bench held that the institutional delay was 26 weeks not counting the summer recess - This was not excessive given the complexity of the case - The court refused to classify the four weeks taken to construct the courtroom as Crown-action delay - The case was the first prosecution of its size in Alberta - It was unrealistic to suggest that an adequate facility to try such a large number of accused should have been in place beforehand - See paragraphs 414 to 419.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The Alberta Court of Queen's Bench agreed that in addition to the steps identified in R. v. Morin (S.C.C.) (time for the accused to retain counsel, bail hearings and reviews, police and administrative paperwork, preparation and delivery of disclosure by the Crown), inherent time requirements also included time for: (a) the accused to review disclosure; (b) the accused to fine tune requests for additional disclosure; (c) the parties to negotiate the method of disclosure delivery; (d) the parties to litigate necessary and meritorious pre-trial motions, including Young Offender Act transfer hearings and appeals; (e) the parties to interview witnesses and prepare their case; (f) the completion of additional investigative steps; (g) the conduct of the trial including meritorious interlocutory motions, argument and adjudication; and (h) responding to changes in the law that occur during the operative period - See paragraph 421.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The Alberta Court of Queen's Bench stated that the inherent portion of the delay relating to disclosure was the length of time it reasonably should have taken the Crown to provide disclosure in a properly conducted and prosecuted case of similar complexity - See paragraph 422.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - Several accused were charged with conspiracy to traffic in cocaine - The case was very complex and involved, inter alia, almost 300,000 intercepted communications and 180,000 pages of disclosure not including narrative logs - The accused argued that their right to be tried within a reasonable time was violated - The Alberta Court of Queen's Bench concluded that, given the complexity of the case, 18 months was the inherent time required to effect disclosure - Further, 18 months was the inherent time for other intake matters, such as retaining counsel, bail hearings, or reviewing disclosure - See paragraphs 420 to 465.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - In September 1999, several accused were charged with several offences - On December 11, 2000, Binder, J., expressed concern about the structure of the prosecution - The Crown opposed severance - On December 18, 2000, Binder, J., ordered severance of all but two counts - On March 26, 2001, the Crown stayed these counts against the "Chan" accused, but proceeded to trial against them on one of the severed counts - The Chan accused argued that their right to be tried within a reasonable time was infringed - The Alberta Court of Queen's Bench held that the delay from December 11 to 18, 2000, when severance was being dealt with, was attributable to the Crown - The Crown was entitled to use prosecutorial discretion in laying charges - However, the Crown's exercise of its discretion caused delay - The Crown was bound by its tactical decision - December 18, 2000 to March 26, 2001 was also a period of Crown-action delay because the charge against the Chan accused had been held in abeyance - The delay from December 11, 2000 to March 26, 2001, delayed the trial even though it occurred during the inherent time required to effect disclosure - See paragraphs 510 to 514.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - Several accused argued that their right to be tried within a reasonable time was violated - The Alberta Court of Queen's Bench rejected the Crown's argument that Crown-action delay could be set off by defence-action delay - However, delay attributed to defence conduct and fault had to be excluded when the reasonableness of the overall delay was considered - See paragraphs 586 to 594.

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 - The Alberta Court of Queen's Bench stated that "Prejudice to the accused may be inferred from unreasonable delay as it is the duty of the Crown to bring the accused to trial within a reasonable period of time. Overcoming the inference of prejudice becomes increasingly difficult with the passage of time and, at some point, the inference becomes irrefutable. It is also open to the accused to lead evidence of actual prejudice." - See paragraph 17.

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 ].

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - [See eighth Civil Rights - Topic 3265 ].

Criminal Law - Topic 4262

Procedure - Indictment - Preferring of indictments - The Alberta Court of Queen's Bench stated that the preferring of a direct indictment increased the Crown's duty and obligation to make complete disclosure - See paragraph 404.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - Several accused were charged with conspiracy - The Crown disclosed numerous documents and intercepted communications - The Alberta Court of Queen's Bench held that the Crown proceeded for some months following the commencement of the trial on the premise that it was adequate to provide the defence with "sufficient" disclosure to mount Garofoli motions - The court held that the Crown erred - The authorities did not support the concept of "sufficient" disclosure on a time-delayed or issue-delayed basis - Although a case's complexity and the defence's actions in pushing at the boundaries of relevance were factors to be considered in determining the amount of time that ought reasonably to be provided for disclosure, such factors did not dictate a lower standard of disclosure, including "reasonable in the circumstances", "enough disclosure" or "sufficient disclosure", nor did they condone staged disclosure - See paragraphs 481 to 495.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3264 , sixth and seventh Civil Rights - Topic 3265 and Criminal Law - Topic 4262 ].

Cases Noticed:

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, appld. [paras. 5, 408].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 5].

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. 5].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 5].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81, refd to. [para. 5].

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. 5].

R. v. Williamson (K.) (2000), 132 O.A.C. 92; 144 C.C.C.(3d) 540 (C.A.), refd to. [para. 7].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 10].

R. v. Koruz et al. (1992), 125 A.R. 161; 14 W.A.C. 161; 72 C.C.C.(3d) 353 (C.A.), affd. [1993] 1 S.C.R. 1134; 150 N.R. 303; 135 A.R. 335; 33 W.A.C. 335, refd to. [para. 13].

Phillips v. Nova Scotia - see Phillips et al. v. Richard, J.

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1, refd to. [para. 250].

R. v. Doucet (1992), 123 N.B.R.(2d) 344; 310 A.P.R. 344; 70 C.C.C.(3d) 385 (C.A.), refd to. [para. 251].

R. v. Panousis (C.) (2002), 324 A.R. 165; 2002 ABQB 1012, refd to. [para. 262].

R. v. Pangman (W.G.) et al. (2000), 149 Man.R.(2d) 68 (Q.B.), refd to. [para. 264].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 271].

R. v. Henkel (J.E.) et al. (2003), 320 A.R. 206; 288 W.A.C. 206 (C.A.), refd to. [para. 272].

R. v. Tapp (B.M.) et al., [2000] B.C.T.C. 654; 2000 BCSC 1204 (S.C.), refd to. [paras. 273, 408].

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. 274].

R. v. S.D. et al., [1992] 2 S.C.R. 161; 138 N.R. 385; 54 O.A.C. 343, refd to. [para. 275].

R. v. Sander (S.) (1995), 58 B.C.A.C. 115; 96 W.A.C. 115; 98 C.C.C.(3d) 564 (C.A.), refd to. [paras. 275, 408].

R. v. Siemens (F.G.) (2000), 260 A.R. 57 (Q.B.), refd to. [paras. 278, 408].

R. v. Court (1997), 36 O.R.(3d) 263 (Gen. Div.), refd to. [paras. 278, 408].

R. v. Girimonte (F.) (1997), 105 O.A.C. 337; 121 C.C.C.(3d) 33 (C.A.), refd to. [paras. 290, 487].

R. v. Arviv (1985), 8 O.A.C. 92; 19 C.C.C.(3d) 395 (C.A.), refd to. [para. 292].

R. v. Sterling (R.), Sterling (L.) and Sterling (T.) (1993), 113 Sask.R. 81; 52 W.A.C. 81; 84 C.C.C.(3d) 65 (C.A.), refd to. [para. 292].

R. v. Antinello (J.J.) (1995), 165 A.R. 122; 89 W.A.C. 122; 97 C.C.C.(3d) 126 (C.A.), refd to. [paras. 301, 408].

R. v. Paryniuk (R.) et al., [2003] O.T.C. 237 (Sup. Ct.), refd to. [para. 308].

R. v. Buggins (W.N.), 2002 ABQB 90, affd. (2002), 303 A.R. 36; 273 W.A.C. 36 (C.A.), refd to. [para. 335].

R. v. Greganti (S.), [2000] O.T.C. 30; 142 C.C.C.(3d) 31 (Sup. Ct.), refd to. [para. 337].

R. v. Atkinson (G.W.) et al. (1991), 50 O.A.C. 48; 68 C.C.C.(3d) 109 (C.A.), affd. [1992] 3 S.C.R. 465; 143 N.R. 389; 59 O.A.C. 41, refd to. [paras. 349, 421].

R. v. Bogiatzis (A.), [2002] O.T.C. Uned. 189 (Sup. Ct.), refd to. [para. 349].

R. v. Durette et al. (1992), 54 O.A.C. 81; 72 C.C.C.(3d) 421 (C.A.), revd. [1994] 1 S.C.R. 469; 163 N.R. 321; 70 O.A.C. 1, refd to. [para. 349].

R. v. Faulds (D.A.); R. v. Tyler (A.) (1996), 94 O.A.C. 335; 111 C.C.C.(3d) 39 (C.A.), refd to. [para. 349].

R. v. Gordon (B.) et al. (1998), 80 O.T.C. 241 (Gen. Div.), refd to. [para. 349].

R. v. Rogalsky (E.J.) et al. (1994), 125 Sask.R. 271; 81 W.A.C. 271; 95 C.C.C.(3d) 41 (C.A.), affd. [1995] 4 S.C.R. 48; 189 N.R. 82; 137 Sask.R. 230; 107 W.A.C. 230, refd to. [para. 349].

R. v. Cai - see R. v. Chan (M.K.) et al.

R. v. Chan (M.K.) et al. (2002), 317 A.R. 240; 284 W.A.C. 240 (C.A.), refd to. [para. 364].

R. v. Biscette (S.) (1995), 169 A.R. 81; 97 W.A.C. 81 (C.A.), affd. [1996] 3 S.C.R. 599; 203 N.R. 244; 187 A.R. 392; 127 W.A.C. 392, refd to. [para. 390].

R. v. Maskell - see R. v. Maskill.

R. v. Maskill (1981), 29 A.R. 107 (C.A.), refd to. [para. 398].

R. v. Steinwand (H.E.) et al. (1994), 124 Sask.R. 307 (Q.B.), refd to. [para. 406].

R. v. Laporte - see R. v. Steinwand (H.E.) et al.

R. v. R.C. (2001), 203 Nfld. & P.E.I.R. 26; 610 A.P.R. 26; 2001 NFCA 37, refd to. [para. 413].

R. v. Trang (D.) et al. (2002), 323 A.R. 297; 2002 ABQB 744, refd to. [para. 484].

R. v. West (R.G.), [2001] O.T.C. 711 (Sup. Ct.), refd to. [para. 490].

R. v. Bramwell (H.L.) (1996), 72 B.C.A.C. 125; 119 W.A.C. 125; 106 C.C.C.(3d) 365 (C.A.), affd. [1996] 3 S.C.R. 1126; 204 N.R. 373; 83 B.C.A.C. 81; 136 W.A.C. 81, refd to. [para. 550].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [para. 629].

Counsel:

R. Short, D. Hrabcak and D. Espeut, for the Federal Crown;

L. Fleming, for the accused, A.H. Chan;

R. Cairns, Q.C., and W. Tatarchuk, for the accused, T. Lam;

H. Wolch, Q.C., for the accused, T.H. Le;

D.H. Abbey, for the accused, A.L. Tran;

Marvin R. Bloos (agent for T. Engel), for the accused, S.M. Fok;

K. Groves and S. Park, for the accused, J. Voon;

M. Stone, for the accused, H.Q. Le;

M. Hopkins, for the accused, T.Q. Tran;

R. Hrycan, for the accused, A. Vergara;

G. Turcin and C. Rice, for the accused, B.M. Tran;

G. Worobec (Agent R. Sachs), for the accused, W. Lau.

This application was heard on March 12-13, 17, 24, 26, April 3, 4, 8, 9, 14, 15, 17, 22-25, 28-30, May 1, 2, 5, 6, 12, 14, 15, 20-23, 26-28, June 4, 5, 10-12, 15 and 25, 2003, by Sulyma, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who released the following decision on September 8, 2003.