R. v. Evans (E.D.), 2012 MBQB 207

• Judge: Simonsen, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: July 10, 2012
• Jurisdiction: Manitoba
• Citations: 2012 MBQB 207;(2012), 285 Man.R.(2d) 1 (QB)

R. v. Evans (E.D.) (2012), 285 Man.R.(2d) 1 (QB)

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. OC.053

Her Majesty The Queen (respondent) v. Elwyn David Evans (accused/applicant)

(CR 10-01-30064; 2012 MBQB 207)

Indexed As: R. v. Evans (E.D.)

Manitoba Court of Queen's Bench

Winnipeg Centre

Simonsen, J.

July 10, 2012.

Summary:

The accused was charged with a number of firearms offences, that resulted from a search warrant executed at his premises in August 2006. He sought a stay of the charges on the basis that the time that had elapsed from August 9, 2006, when he was first charged, to September 28, 2012, when his trial was set to end, was unreasonable and breached s. 11(b) of the Charter.

The Manitoba Court of Queen's Bench dismissed the motion. Although the delay (almost 74 months) was considerable, much of that time had either been waived by the accused or was attributable to defence strategy.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - The Manitoba Court of Queen's Bench discussed the law respecting waiver and implied waiver of an accused's s. 11(b) Charter right to be tried within a reasonable time - See paragraphs 6 to 8.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - [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" - The accused was charged with a number of firearms offences that resulted from a search warrant executed at his premises in August 2006 - He sought a stay of the charges on the basis that the time that had elapsed from August 9, 2006, when he was first charged, to September 28, 2012, when his trial was set to end, was unreasonable and breached s. 11(b) of the Charter - The Manitoba Court of Queen's Bench dismissed the motion - Although the delay (almost 74 months) was considerable, much of that time had either been waived by the accused or was attributable to defence strategy - The charges had been set for trial on four separate occasions, for January 2008, November 2009, April 2011 and now September 2012 - The January 2008 trial was converted to a preliminary inquiry at the accused's re-election and the November 2009 trial was adjourned at his request - Although the April 2011 trial proceeded, a mistrial was declared near the conclusion of the Crown's case because of late disclosure - No actual prejudice arose from the delay, although some could be inferred from its length - The delay, although considerable, was largely within acceptable parameters before the mistrial - The subsequent delay was concerning, but the interests of the accused and society in a prompt adjudication did not outweigh society's interest in bringing the accused to trial.

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 Manitoba Court of Queen's Bench discussed the following reasons for delay in the context of an alleged breach of an accused's s. 11(b) Charter right to be tried within a reasonable time: inherent time requirements; delay attributable to the accused; delay attributable to the Crown; and institutional delay - See paragraphs 9 to 13.

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 Manitoba Court of Queen's Bench stated that "The onus is on the accused to establish prejudice ... . Prejudice in the context of s. 11(b) of the Charter is concerned with three interests of the accused: 1. Liberty, as regards pre-trial custody or bail conditions; 2. Security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and 3. The right to make full answer and defence, insofar as delay can prejudice the ability of a defendant to lead evidence, cross-examine witnesses or otherwise raise a defence ... ." - See paragraph 14.

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 a number of firearms offences that resulted from a search warrant executed at his premises in August 2006 - He sought a stay of the charges on the basis that the time that had elapsed from August 9, 2006, when he was first charged, to September 28, 2012, when his trial was set to end, was unreasonable and breached s. 11(b) of the Charter - The charges had been set for trial on four separate occasions, for January 2008, November 2009, April 2011 and now September 2012 - The January 2008 trial was converted to a preliminary inquiry at the accused's re-election and the November 2009 trial was adjourned at his request - Although the April 2011 trial proceeded, a mistrial was declared near the conclusion of the Crown's case because of late disclosure - The Crown acknowledged responsibility for the mistrial - The Manitoba Court of Queen's Bench discussed which time periods were ones of inherent delay - The court stated that "Crown counsel also argues that there was inherent delay following the mistrial in April 2011, associated with arranging pre-trial conferences and setting new trial dates. However, in my view, because the Crown bears responsibility for the mistrial, it follows that it bears responsibility for all delay since then, except that which rests with the defence. That is, it is responsible even for what would otherwise be characterized as inherent delay. This is because there would have been no further inherent delay, but for the mistrial." - See paragraphs 44 to 46.

Cases Noticed:

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 3].

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. 4].

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. 4].

R. v. George (D.P.) (2006), 208 Man.R.(2d) 300; 383 W.A.C. 300; 2006 MBCA 150, refd to. [para. 6].

R. v. Barkman (T.K.) (2004), 190 Man.R.(2d) 75; 335 W.A.C. 75; 2004 MBCA 151, refd to. [para. 7].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81, refd to. [para. 7].

R. v. Loewen (J.K.) (1998), 131 Man.R.(2d) 217; 187 W.A.C. 217 (C.A.), refd to. [para. 8].

R. v. Pearce (M.L.) (2011), 263 Man.R.(2d) 133; 2011 MBQB 63, refd to. [para. 9].

R. v. S.T.N. (2006), 204 Man.R.(2d) 212; 2006 MBQB 148, refd to. [para. 9].

R. v. Dawkins (R.), [2008] O.T.C. Uned. P73 (Sup. Ct.), refd to. [para. 46].

R. v. Bennett (1991), 46 O.A.C. 99; 3 O.R.(3d) 193 (C.A.), refd to. [para. 50].

R. v. Weaver (1992), 110 N.S.R.(2d) 341; 299 A.P.R. 341 (C.A.), refd to. [para. 50].

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. 64].

R. v. Mack (D.R.) (2007), 458 A.R. 52; 2007 ABQB 182, refd to. [para. 64].

R. v. Cater (K.) et al. (2011), 309 N.S.R.(2d) 129; 979 A.P.R. 129; 2011 NSPC 80, refd to. [para. 65].

R. v. C.L.S. et al. (2011), 261 Man.R.(2d) 158; 2011 MBQB 28, refd to. [para. 65].

R. v. Atwal (K.), [2007] O.T.C. Uned. A67; 154 C.R.R.(2d) 1 (Sup. Ct.), refd to. [para. 70].

R. v. Poole (M.E.) et al., [2008] B.C.T.C. Uned. H68; 2008 BCSC 543, refd to. [para. 70].

Counsel:

Nathaniel Carnegie, for the Crown;

Gerri F. Wiebe, for the accused.

This motion was heard by Simonsen, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on July 10, 2012.