R. v. Ford, (1991) 103 N.S.R.(2d) 160 (ProvCt)

• Judge: Gibson, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: February 22, 1991
• Jurisdiction: Nova Scotia
• Citations: (1991), 103 N.S.R.(2d) 160 (ProvCt)

R. v. Ford (1991), 103 N.S.R.(2d) 160 (ProvCt);

    282 A.P.R. 160

MLB headnote and full text

Her Majesty The Queen v. Michael Timothy Ford

(152370, 152371)

Indexed As: R. v. Ford

Nova Scotia Provincial Court

Gibson, P.C.J.

March 28, 1991.

Summary:

An accused charged with refusing a breathalyzer demand and having control of a motor vehicle while impaired applied under s. 24(1) of the Charter for a stay of proceedings, claiming his right to be tried within a reasonable time (s. 11(b)) was denied.

The Nova Scotia Provincial Court dismissed the application, where the delay did not prejudice the accused.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitutes - The accused's trial for impaired driving charges was fixed for seven months and 23 days after the information was sworn - The delay was solely systemic - It was the earliest trial date other than one week after arraignment, when the accused's counsel was unavailable - The accused did not waive the delay by consenting to the first available date - The Nova Scotia Provincial Court stated that the delay was sufficiently long to justify review, but not so "very long" to infer prejudice to the accused - The court held that absent inferred or proved prejudice, the accused's right to be tried within a reasonable time was not denied.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitutes - The Nova Scotia Provincial Court listed the factors to be considered in determining whether an accused's right to be tried within a reasonable time was denied: (1) length of the delay; (2) explanation for the delay (including delays attributable to the Crown and the accused and systemic delay); (3) waiver; and (4) prejudice to the accused - See paragraph 14.

Civil Rights - Topic 3268

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Time to allege denial - On the day before trial the accused notified the Crown of his intention to seek a stay of proceedings on the ground of breach of his s. 11(b) Charter right to be tried within a reasonable time - The Nova Scotia Provincial Court accepted the accused's explanation why an application for a Charter hearing was not made earlier, but cautioned against untimely applications for Charter relief - See paragraphs 47 to 55.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Civil Rights - Topic 3268].

Cases Noticed:

R. v. Askov, Hussey, Melo and Gugliotta (1990), 113 N.R. 241; 42 O.A.C. 81; 79 C.R.(3d) 273 (S.C.C.), appld. [para. 6].

R. v. Morin (1990), 38 O.A.C. 298; 76 C.R.(3d) 37 (C.A.), refd to. [para. 6].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 26 C.C.C.(3d) 481, refd to. [para. 14].

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. 14].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 14].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81, refd to. [para. 14].

R. v. Latter (1988), 85 N.S.R.(2d) 205; 216 A.P.R. 205 (T.D.), refd to. [para. 17].

R. v. Harris (1991), 101 N.S.R.(2d) 120; 275 A.P.R. 120 (T.D.), refd to. [para. 52].

R. v. Kutyneck (1990), 57 C.C.C.(3d) 507 (Ont. Dist. Ct.), refd to. [para. 53].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(b), sect. 24(1).

Criminal Code, R.S.C. 1985, c. C-46, sect. 253(a), sect. 254(5).

Counsel:

John A. Feehan, for the Crown;

Ronald J. MacDonald, for the accused.

This application was heard on February 22, 1991, before Gibson, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on March 28, 1991.