R. v. Dias (G.F.), (2014) 588 A.R. 102

• Judge: Costigan, Watson and Brown, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 26, 2014
• Citations: (2014), 588 A.R. 102;2014 ABCA 402

R. v. Dias (G.F.) (2014), 588 A.R. 102; 626 W.A.C. 102 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. DE.013

Her Majesty the Queen (respondent) v. Glen Fernando Dias (appellant)

(1303-0089-A; 2014 ABCA 402)

Indexed As: R. v. Dias (G.F.)

Alberta Court of Appeal

Costigan, Watson and Brown, JJ.A.

November 28, 2014.

Summary:

The accused was charged in July 2008 with failing to stop while being pursued by a peace officer, failing to comply with a breath sample demand, impaired operation of a motor vehicle, dangerous driving, and threatening to use a vehicle as a weapon in committing an assault upon an officer. There were disclosure delays. A provincial court judge gave an order for disclosure. The accused sought a stay of proceedings due to the failure to disclose.

The Alberta Court of Queen's Bench, in a decision reported at [2010] A.R. Uned. 134, stayed the charges for failure to disclose. The Crown appealed.

The Alberta Court of Appeal, in a decision reported at (2011), 502 A.R. 156, allowed the appeal and set aside the stay. The accused applied for another stay, alleging breaches of his ss. 7 and 11(b) Charter rights to be tried within a reasonable time.

The Alberta Court of Queen's Bench, in a decision reported at (2012), 548 A.R. 331, dismissed the application. The trial proceeded.

The Alberta Court of Queen's Bench, in a decision reported at (2012), 548 A.R. 341, found the accused guilty of all five offences. The accused appealed the dismissal of his ss. 7 and 11(b) Charter application.

The Alberta Court of Appeal dismissed the appeal.

Civil Rights - Topic 3130

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Delay (Charter, s. 7) - Based on the passage of time between his arrest and trial (51 months), an accused applied for a stay of proceedings under s. 24(1) of the Charter - He alleged a breach of his s. 11(b) right to be tried within a reasonable time or a breach of the principles of fundamental justice under s. 7 - The Alberta Court of Appeal stated that "[T]here are shared objectives of both s 11(b) and s 7 of the Charter. In sum, the fair and timely operation of the criminal justice system is a shared purpose ... But the scope of those legal rights and the manner in which they operate to serve those objectives is not identical or co-extensive. A section 7 claim requires proof of a significant breach of a principle of fundamental justice with, in turn, a real and tangible prejudicial effect either upon the Charter claimant or upon the repute of justice in one of the three categories described in R v Babos, 2014 SCC 16 ... There was no proof to that effect here in any of those categories. Certainly there was nothing of the 'clearest of cases' required to impose a stay as sought by the appellant here. Indeed, there is no challenge to the guilty findings so his trial was not unfair. Consequently, we need not dwell on s 7 of the Charter. There is no basis for its invocation here, let alone for the draconian remedy of a stay based on a breach of s 7 of the Charter. The trial judge did not err in not finding a breach of s 7 of the Charter." - See paragraphs 5 to 8.

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 - Dias was charged in July 2008 with several offences - There were disclosure delays - Dias moved for a stay of proceedings due to the Crown's failure to disclose - The proceedings were stayed in January 2010 - On appeal in December 2010, the stay was set aside and a new trial was ordered - The trial was set to begin in October 2012, 51 months after Dias was charged - Dias applied for a stay, alleging a breach of his s. 11(b) Charter right to be tried within a reasonable time - The trial judge dismissed the application - Dias was found guilty - He appealed the dismissal of his s. 11(b) Charter application - The Alberta Court of Appeal dismissed the appeal - Dias' approach wrongly characterized large parts of the delay, ignored the inherent or neutral nature of some aspects of the delay, and absolved the defence of any contribution to the delay - The defence was fully entitled to make experimental legal applications like Dias did when he sought a stay based on the Crown's failure to disclose - However, he was not absolved from being regarded as a contributor to the delay because of that entitlement - In addition, the fact that the defence was not agitating to move the case forward more briskly, and Dias was at large on release, were both indications that the impact of the delay on Dias was not overly prejudicial - See paragraphs 9 to 22.

Civil Rights - Topic 8374

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

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 1].

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. 3].

R. v. Potvin (R.), [1993] 2 S.C.R. 880; 155 N.R. 241; 66 O.A.C. 81, refd to. [para. 5].

R. v. Robertson (S.C.), [2006] B.C.T.C. 120; 2006 BCSC 120, not folld. [para. 6].

R. v. Wilson (R.), [2007] O.T.C. Uned. O79 (Sup. Ct.), not folld. [para. 6].

R. v. Barros (R.) (2014), 584 A.R. 362; 623 W.A.C. 362; 2014 ABCA 367, refd to. [para. 6].

R. v. Teskey (L.M.), [2014] A.R. Uned. 295; 2014 ABCA 287, refd to. [para. 6].

R. v. Sapara (J.) (2001), 277 A.R. 357; 242 W.A.C. 357; 2001 ABCA 59, refd to. [para. 7].

R. v. Babos (A.), [2014] 1 S.C.R. 309; 454 N.R. 86; 2014 SCC 16, refd to. [para. 8].

R. v. K.G.W. (2014), 324 O.A.C. 231; 2014 ONCA 598, refd to. [para. 10].

R. v. Konstantakos (G.) (2014), 315 O.A.C. 123; 298 C.R.R.(2d) 310; 2014 ONCA 21, refd to. [para. 10].

R. v. C.D. (2014), 584 A.R. 222; 623 W.A.C. 222; 2014 ABCA 333, refd to. [para. 10].

R. v. Schertzer (J.) et al. (2009), 255 O.A.C. 45; 248 C.C.C.(3d) 270; 2009 ONCA 742, refd to. [para. 10].

R. v. Tran (L.) et al. (2012), 287 O.A.C. 94; 288 C.C.C.(3d) 177; 2012 ONCA 18, refd to. [para. 10].

R. v. Hiscoe (J.S.) (2013), 328 N.S.R.(2d) 381; 1039 A.P.R. 381; 297 C.C.C.(3d) 35; 2013 NSCA 48, refd to. [para. 11].

R. v. Cater (K.) (2014), 349 N.S.R.(2d) 225; 1101 A.P.R. 225; 2014 NSCA 74, refd to. [para. 11].

R. v. MacIntosh (E.F.) (2011), 310 N.S.R.(2d) 274; 983 A.P.R. 274; 281 C.C.C.(3d) 291; 2011 NSCA 111, affd. [2013] 2 S.C.R. 200; 443 N.R. 32; 329 N.S.R.(2d) 395; 1042 A.P.R. 395; 2013 SCC 23, refd to. [para. 11].

R. v. Horner (J.J.) (2012), 314 B.C.A.C. 272; 534 W.A.C. 272; 283 C.C.C.(3d) 453; 2012 BCCA 7, refd to. [para. 11].

R. v. Sanghera (B.) et al. (2014), 357 B.C.A.C. 175; 611 W.A.C. 175; 313 C.C.C.(3d) 113; 2014 BCCA 249, refd to. [para. 11].

R. v. Anderson (T.) (2013), 423 Sask.R. 61; 588 W.A.C. 61; 300 C.C.C.(3d) 296; 2013 SKCA 92, refd to. [para. 11].

R. v. Bellusci (R.), [2012] 2 S.C.R. 509; 433 N.R. 135; 2012 SCC 44, refd to. [para. 12].

R. v. M.T. (2013), 308 O.A.C. 143; 299 C.C.C.(3d) 1; 2013 ONCA 476, refd to. [para. 12].

R. v. Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 12].

R. v. Jordan (B.R.) et al. (2014), 357 B.C.A.C. 137; 611 W.A.C. 137; 2014 BCCA 241, refd to. [para. 20].

R. v. Stilwell (C.) (2014), 324 O.A.C. 72; 313 C.C.C.(3d) 257; 2014 ONCA 563, refd to. [para. 20].

R. v. Ralph (A.) (2014), 313 O.A.C. 384; 2014 ONCA 3, leave to appeal denied [2014] S.C.C.A. No. 262, refd to. [para. 20].

R. v. Seegmiller (W.) (2004), 192 O.A.C. 320; 191 C.C.C.(3d) 347 (C.A.), refd to. [para. 21].

R. v. Joudaane, 2014 QCCA 1880, refd to. [para. 21].

R. v. Widdifield (R.F.) (2014), 354 B.C.A.C. 237; 605 W.A.C. 237; 2014 BCCA 170, refd to. [para. 21].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(b) [para. 2].

Counsel:

A.S. Millman, for the appellant;

K.A. Joyce, for the respondent.

This appeal was heard on November 26, 2014, before Costigan, Watson and Brown, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was delivered by the court at Edmonton, Alberta, on November 28, 2014.