R. v. Freelend (K.W.), (2010) 511 A.R. 61 (QB)

• Judge: Macklin, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 02, 2010
• Citations: (2010), 511 A.R. 61 (QB);2010 ABQB 799

R. v. Freelend (K.W.) (2010), 511 A.R. 61 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MR.065

Her Majesty The Queen (respondent) v. Kenneth Wayne Freelend (appellant)

(080054851S1; 2010 ABQB 799)

Indexed As: R. v. Freelend (K.W.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Macklin, J.

December 14, 2010.

Summary:

The accused was charged with impaired driving and driving a motor vehicle while having a blood-alcohol content exceeding the legal limit. He alleged that his s. 11(b) Charter right to be tried within a reasonable time was infringed. He sought a stay of proceedings under s. 24(1). The trial judge held that the accused's Charter rights were not infringed. The judge found that accused guilty on both counts, but stayed the first count. The accused appealed, arguing that the judge erred (1) in not finding an infringement of the accused's s. 11(b) Charter rights; (2) in failing to give sufficient reasons for his decision; and (3) in failing to determine whether documents requested by the accused were first party or third party documents.

The Alberta Court of Queen's Bench dismissed the appeal.

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 impaired driving and driving a motor vehicle while having a blood-alcohol content exceeding the legal limit - He alleged that his s. 11(b) Charter right to be tried within a reasonable time was infringed given the 22-25 month delay between laying of the information and the trial - He sought a stay of proceedings under s. 24(1) - The trial judge held that the accused's Charter rights were not infringed - Allowing for a 10 month delay for the inherent time requirements of the case, the large portion of the balance of the delay was attributable to the resolution of a legitimate disclosure dispute involving the accused, the Crown and the Edmonton Police Service - This dispute added a level of complexity to the case, resulting in a delay not attributable to either the accused or the Crown - The delay did not prejudice the accused's right to make full answer and defence - The Alberta Court of Queen's Bench dismissed the accused's appeal - The trial judge did not err in finding no breach of the accused's Charter rights - The court stated that "to the extent that there was any delay or prejudice, society's interest in combatting the evil of impaired driving is of great importance and weighs heavily against the interests of the [accused] on the facts of this case" - See paragraphs 1 to 59.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - An accused argued that a trial judge failed to give sufficient reasons for failing to stay proceedings against him on the ground that his s. 11(b) Charter right to be tried within a reasonable time was infringed - The Alberta Court of Queen's Bench rejected the submission - The reasons provided were intelligible and clearly demonstrated the trial judge's rationale for denying a stay of proceedings - See paragraphs 60 to 64.

Cases Noticed:

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. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 5].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 7].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 8].

Elk Valley Coal Corp. v. United Mine Workers of America, Local 1656 (2009), 474 A.R. 145; 479 W.A.C. 145; 2009 ABCA 407, refd to. [para. 9].

R. v. MacDougall (P.A.), [1998] 3 S.C.R. 45; 231 N.R. 147; 168 Nfld. & P.E.I.R. 83; 517 A.P.R. 8, refd to. [para. 18].

R. v. Schertzer (J.) et al. (2009), 255 O.A.C. 45; 2009 ONCA 742, leave to appeal denied (2010), 406 N.R. 396; 271 O.A.C. 396 (S.C.C.), refd to. [para. 20].

R. v. Ryz (L.M.) (2008), 422 A.R. 367; 415 W.A.C. 367; 2008 ABCA 28, leave to appeal denied (2008), 387 N.R. 395; 460 A.R. 187; 462 W.A.C. 187 (S.C.C.), refd to. [para. 28].

R. v. Yelle (J.) et al. (2006), 384 A.R. 331; 367 W.A.C. 331; 2006 ABCA 160, refd to. [para. 40].

R. v. Neil (D.L.) (2005), 361 A.R. 285; 339 W.A.C. 285; 2005 ABCA 17, refd to. [para. 55].

R. v. Schell (1979), 20 A.R. 361; 50 C.C.C.(2d) 532 (C.A.), refd to. [para. 57].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 57].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 57].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355, refd to. [para. 62].

R. v. Black (W.J.) (2010), 498 A.R. 229; 2010 ABQB 461, refd to. [para. 69].

R. v. Lalic, 2010 ONCJ 564, refd to. [para. 69].

Duff v. Alberta (Attorney General) et al. (2010), 497 A.R. 16; 2010 ABPC 250, refd to. [para. 69].

R. v. Klug (K.W.) (2010), 500 A.R. 293; 2010 ABPC 88, refd to. [para. 69].

R. v. Scurr (J.L.) et al. (2008), 441 A.R. 203; 2008 ABQB 127, refd to. [para. 69].

Counsel:

Julie Snowdon (Crown Prosecutors Office), for the respondent/Crown;

Y. Rory Ziv (Weary & Ziv), for the appellant/accused.

This appeal was heard on December 2, 2010, before Macklin, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on December 14, 2010.