R. v. Evans (E.D.),

• Jurisdiction: Manitoba
• Judge: Hamilton, MacInnes and Mainella, JJ.A.
• Neutral Citation: 2014 MBCA 44
• Citation: (2014), 306 Man.R.(2d) 9 (CA),2014 MBCA 44,[2014] MJ No 129 (QL),306 Man R (2d) 9,[2014] M.J. No 129 (QL),(2014), 306 ManR(2d) 9 (CA),306 ManR(2d) 9,306 Man.R.(2d) 9
• Date: 28 April 2014
• Court: Court of Appeal (Manitoba)

R. v. Evans (E.D.) (2014), 306 Man.R.(2d) 9 (CA);

      604 W.A.C. 9

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. MY.019

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

(AR 12-30-07886; 2014 MBCA 44)

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

Manitoba Court of Appeal

Hamilton, MacInnes and Mainella, JJ.A.

April 28, 2014.

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, in a decision reported at 285 Man.R.(2d) 1, 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 accused was convicted. The accused appealed, submitting that his rights under ss. 8 and 11(b) of the Charter were infringed by the search of his property and the unreasonable trial delay.

The Manitoba Court of Appeal dismissed the appeal.

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, violating s. 11(b) of the Charter - The trial judge 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 - Because the Crown bore responsibility for the mistrial, it followed that it bore responsibility for all delay since then, except that which rested with the defence (i.e., it was responsible even for what would otherwise have been characterized as inherent delay because there would have been no further inherent delay, but for the mistrial) - 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 - The accused appealed - The Manitoba Court of Appeal dismissed the appeal - The trial judge's decision on unreasonable delay was sound and entitled to deference - See paragraph 3.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - The accused was convicted of a number of firearms offences that resulted from a search warrant executed at his premises in August 2006 - The accused brought a pretrial motion alleging two breaches of s. 8 of the Charter: (1) the Information to Obtain (ITO) lacked sufficient grounds to meet the requirements of the Criminal Code; and (2) the search warrant should be quashed in its entirety because O'Donovan provided false and misleading information to the authorizing justice - He appealed, submitting that the trial judge erred in not finding that the Charter was infringed by the search of his property - The reviewing judge had dismissed the motion, despite it being a "very close case" - It was agreed that O'Donovan exhibited bad faith - The Manitoba Court of Appeal dismissed the appeal - In determining whether there was a sufficient evidentiary basis to issue the warrant, the reviewing judge should take into account reasonable inferences that could be drawn from the information in the ITO - Errors, even fraudulent ones, did not automatically invalidate a search warrant - The reviewing judge did not err in considering the effect of informants, Y and K's, information cross-corroborating each other in assessing whether, in the totality of the circumstances, there were reasonable grounds to search the accused's property - The reviewing judge concluded that the prior authorization process was not corrupted by O'Donovan's bad faith - She gave very careful reasons that were supported by the record - The court saw no basis to interfere with her exercise of discretion to not quash the search warrant in its entirety - See paragraphs 4 to 20.

Criminal Law - Topic 3183

Special powers - Search warrants - Setting aside - Grounds - Information - Sufficiency of form and content - [See Criminal Law - Topic 3097 ].

Criminal Law - Topic 3184

Special powers - Setting aside search warrants - Grounds - Falsehood, misleading statements or omissions in sworn information - [See Criminal Law - Topic 3097 ].

Criminal Law - Topic 3113

Special powers - Setting aside search warrants - General - Scope of review - The accused was convicted of a number of firearms offences that resulted from a search warrant executed at his premises in August 2006 - The accused brought a pretrial motion alleging two breaches of s. 8 of the Charter: (1) the Information to Obtain (ITO) lacked sufficient grounds to meet the requirements of the Criminal Code; and (2) the search warrant should be quashed in its entirety because O'Donovan provided false and misleading information to the authorizing justice - He appealed, submitting that the reviewing judge erred in not finding that the Charter was infringed by the search of his property - The reviewing judge had dismissed the motion, despite it being a "very close case" - The Manitoba Court of Appeal stated that appellate deference was owed to the reviewing judge's decision if the judge selected and applied the correct standard of review - The reviewing judge properly understood her role in conducting the Garofoli review - Therefore, the court was not persuaded that she erred in law, misapprehended the evidence, or failed to consider relevant evidence - See paragraph 20.

Cases Noticed:

R. v. George (D.P.) (2006), 208 Man.R.(2d) 300; 383 W.A.C. 300; 2006 MBCA 150, refd to. [para. 3].

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

R. v. Byron (M.C.) (2001), 156 Man.R.(2d) 154; 246 W.A.C. 154; 2001 MBCA 81, refd to. [para. 3].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 6].

R. v. Campbell (N.M.), [2011] 2 S.C.R. 549; 418 N.R. 1; 279 O.A.C. 52; 2011 SCC 32, refd to. [para. 9].

R. v. Vu (T.L.), [2013] 3 S.C.R. 657; 451 N.R. 199; 345 B.C.A.C. 155; 589 W.A.C. 155; 2013 SCC 60, refd to. [para. 10].

R. v. Bisson (J.) et autres, [1994] 3 S.C.R. 1097; 173 N.R. 237; 65 Q.A.C. 241, refd to. [para. 11].

R. v. Saunders (G.T.) (2003), 232 Nfld. & P.E.I.R. 22; 690 A.P.R. 22; 2003 NLCA 63, affd. [2004] 3 S.C.R. 505; 328 N.R. 108; 244 Nfld. & P.E.I.R. 180; 726 A.P.R. 180; 2004 SCC 70, refd to. [para. 14].

R. v. Gordon (E.W.T.) (1999), 138 Man.R.(2d) 298; 202 W.A.C. 298; 139 C.C.C.(3d) 239 (C.A.), refd to. [para. 17].

R. v. Morris (W.R.) (1998), 173 N.S.R.(2d) 1; 527 A.P.R. 1; 134 C.C.C.(3d) 539 (C.A.), refd to. [para. 17].

R. v. Araujo (A.), [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 17].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 18].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 18].

R. v. Henderson (W.E.) (2012), 284 Man.R.(2d) 164; 555 W.A.C. 164; 2012 MBCA 93, leave to appeal dismissed (2013), 453 N.R. 397 (S.C.C.), refd to. [para. 20].

R. v. Sadikov (S.) et al. (2014), 314 O.A.C. 357; 2014 ONCA 72, refd to. [para. 20].

Counsel:

G.F. Wiebe, for the appellant;

N.M. Cutler and D.L. Carlson, for the respondent.

This appeal was heard and decision pronounced on April 28, 2014, by Hamilton, MacInnes and Mainella, JJ.A., of the Manitoba Court of Appeal. Mainella, J.A., delivered the following written reasons for the court on May 6, 2014.