R. v. Fleet (E.J.), 2001 NSCA 158

• Judge: Bateman, Flinn and Cromwell, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 07, 2001
• Jurisdiction: Nova Scotia
• Citations: 2001 NSCA 158;(2001), 198 N.S.R.(2d) 228 (CA)

R. v. Fleet (E.J.) (2001), 198 N.S.R.(2d) 228 (CA);

 621 A.P.R. 228

MLB headnote and full text

Temp. Cite: [2001] N.S.R.(2d) TBEd. NO.032

Edward Joseph Fleet (appellant) v. Her Majesty The Queen (respondent)

(C.A.C. No. 169024; 2001 NSCA 158)

Indexed As: R. v. Fleet (E.J.)

Nova Scotia Court of Appeal

Bateman, Flinn and Cromwell, JJ.A.

November 7, 2001.

Summary:

The accused and his 14 year old son were seriously injured in a single vehicle accident. Both were found unconscious on the road. The accused was charged with negligent operation of a motor vehicle and refusing to comply with a blood sample demand. The trial judge, in convicting the accused, rejected the submission that the accused's right to be tried within a reasonable time (Charter, s. 11(b)) had been denied. The trial judge also admitted an unsworn statement by the accused's brother that the accused was the driver. The accused appealed.

The Nova Scotia Court of Appeal dis­missed the appeal. The trial judge did not err in refusing to grant a stay of proceedings where the accused's right to be tried within a reasonable time had not been denied. The trial judge also did not err in admitting the unsworn statement, which met the require­ments of necessity and reliability.

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 September 20, 1998, the accused was charged with negli­gent operation of a motor vehicle and refusing a blood sample demand - On February 8, 1999, the accused appeared and pleaded not guilty - Trial was set for September 28, 1999 - On the trial date, a material Crown witness, who had been subpoenaed, did not appear - The trial judge adjourned the trial to July 11, 2000, over the accused's objections - On July 11, 2000, the accused sought a stay of pro­ceedings under s. 24(1) of the Charter, alleging his s. 11(b) right to be tried within a reasonable time had been denied - The Nova Scotia Court of Appeal held that the trial judge did not err in finding that the 18 month delay, occasioned primarily because of the nonappearance of a sub­poenaed material Crown witness, did not violate the accused's right to be tried within a reasonable time - The accused established no actual prejudice - See para­graphs 5 to 23.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - At issue was whether the accused was driving the motor vehicle involved in a single vehicle accident, injuring the accused and his 14 year old son - Four days after the accident, the accused's brother gave a statement to police that he saw the accused driving - At trial, the brother professed to having no memory of giving the statement or of the events of the day of the accident - The Nova Scotia Court of Appeal affirmed the admission of the unsworn statement as being "necessary and reliable" - This was not a case of an inconsistent prior statement (where the inability to cross-examine took on heightened importance), but a case where the brother, having given a statement, was now unable or unwilling to testify - The brother's statement was audio-taped, then reduced to writing (no question of inac­curacy) - The brother had been advised of the importance of telling the truth - The brother had no reason to lie - See para­graphs 24 to 56.

Cases Noticed:

Canada (Minister of Citizenship and Immi­gration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 13].

R. v. Hiscock (D.W.) (1999), 179 N.S.R.(2d) 350; 553 A.P.R. 350 (C.A.), refd to. [para. 13].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 14].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 30].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 33].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 33].

Ares v. Venner, [1970] S.C.R. 608, refd to. [para. 34].

R. v. Hart (W.A.) (1999), 174 N.S.R.(2d) 165; 532 A.P.R. 165 (C.A.), refd to. [para. 34].

Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965 (P.C.), refd to. [para. 35].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321, refd to. [para. 45].

R. v. C.C.F., [1997] 3 S.C.R. 1183; 220 N.R. 362; 104 O.A.C. 321, refd to. [para. 46].

R. v. Conway (J.) et al. (1997), 106 O.A.C. 81; 121 C.C.C.(3d) 397 (C.A.), refd to. [para. 47].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 60].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 60].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 9(2) [para. 25].

Authors and Works Noticed:

McCormick on Evidence (4th Ed. 1992), p. 120 [para. 45].

Counsel:

Gregory S. Hildebrand, for the appellant;

Peter Rosinski, for the respondent.

This appeal was heard on September 13, 2001, before Bateman, Flinn and Cromwell, JJ.A., of the Nova Scotia Court of Appeal.

On November 7, 2001, Bateman, J.A., delivered the following judgment for the Court of Appeal.