R. v. Galan (F.), (2015) 366 Nfld. & P.E.I.R. 228 (NLTD(G))

JudgeMennie, J.
CourtSupreme Court of Newfoundland and Labrador (Canada)
Case DateMay 14, 2015
JurisdictionNewfoundland and Labrador
Citations(2015), 366 Nfld. & P.E.I.R. 228 (NLTD(G))

R. v. Galan (F.) (2015), 366 Nfld. & P.E.I.R. 228 (NLTD(G));

    1144 A.P.R. 228

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. MY.029

Her Majesty The Queen v. Fernando Galan (201401G8339; 2015 NLTD(G) 74)

Indexed As: R. v. Galan (F.)

Newfoundland and Labrador Supreme Court

Trial Division (General)

Mennie, J.

May 14, 2015.

Summary:

The accused was charged with trafficking in a narcotic and possession of a narcotic for the purpose of trafficking. He was arrested on May 16, 2012. On January 28, 2013, he elected trial by judge and jury. A preliminary inquiry was held between July 19 and November 15, 2013. The accused was committed to stand trial on December 4, 2013. On January 3, 2014, the Crown filed an amended indictment. On January 13, 2014, the accused pleaded not guilty. In April 2014, the accused successfully applied for severance (jointly charged with co-accused). The trial was scheduled for May 19-29, 2015. The accused applied under s. 24(1) of the Charter for a stay of proceedings on the ground that the 36 month delay between the charge and trial violated his s. 11(b) Charter right to be tried within a reasonable time.

The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the application.

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 jointly charged with trafficking in a narcotic and possession of a narcotic for the purpose of trafficking following a lengthy and moderately complex police investigation which involved a significant amount of disclosure both in Newfoundland and Labrador and British Columbia - He was arrested on May 16, 2012 - On January 28, 2013, he elected trial by judge and jury - A preliminary inquiry was held between July 19 and November 15, 2013 - The accused was committed to stand trial on December 4, 2013 - On January 3, 2014, the Crown filed an amended indictment - On January 13, 2014, the accused pleaded not guilty - In April 2014, the accused successfully applied for severance - The trial was scheduled for May 19-29, 2015 - The accused applied under s. 24(1) of the Charter for a stay of proceedings on the ground that the 36 month delay between the charge and trial violated his s. 11(b) Charter right to be tried within a reasonable time - The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the application - Of the 36 month delay, two months was attributable to the Crown and 9.5 months was attributable to institutional delay - The total delay (11.5 months) was well within the Morin guideline of 14-18 months for a case of this complexity which proceeded through two court levels and required the completion of a preliminary inquiry - There was no evidence of prejudice to the accused - The accused's right to be tried within a reasonable time was not infringed - See paragraphs 24 to 105.

Criminal Law - Topic 4482

Procedure - Trial - Joint or separate trials of two or more persons - Following a lengthy and moderately complex police investigation, the accused was jointly charged with drug offences with the co-accused - The accused, after successfully applying for severance, sought a stay of proceedings on the ground that the 36 month delay from charge to trial violated his s. 11(b) Charter right to be tried within a reasonable time - The accused argued that part of the delay was attributable to the Crown's failure to sever him from the co-accused, or consent to severance when he applied for it - The Newfoundland and Labrador Supreme Court, Trial Division (General), discussed the Crown's obligation, if any, to seek severance - The court held that the Crown's position to proceed against the accused and co-accused jointly was a reasonable decision within its core prosecutorial discretion - See paragraphs 72 to 76.

Cases Noticed:

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81; 52 C.C.C.(3d) 97, refd to. [para. 11].

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. 11].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, refd to. [para. 11].

R. v. Reid (B.W.) (1999), 171 Nfld. & P.E.I.R. 143; 525 A.P.R. 143; 41 W.C.B.(2d) 362 (Nfld. C.A.), refd to. [para. 11].

R. v. Taylor (B.) et al. (2010), 297 Nfld. & P.E.I.R. 1; 918 A.P.R. 1; 2010 NLCA 26, refd to. [para. 11].

R. v. Sapara (J.) (2001), 277 A.R. 357; 242 W.A.C. 357; 2001 ABCA 59, refd to. [para. 20].

R. v. L.G. (2007), 229 O.A.C. 89; 2007 ONCA 654, refd to. [para. 20].

R. v. Farewell (R.K.) (2008), 250 B.C.A.C. 133; 416 W.A.C. 133; 2008 BCCA 9, refd to. [para. 20].

R. v. Chrisanthopoulos (2002), 213 Nfld. & P.E.I.R. 247; 640 A.P.R. 247; 54 W.C.B.(2d) 263 (N.L.T.D.), refd to. [para. 20].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 34].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272; 96 C.C.C.(3d) 225, refd to. [para. 34].

R. v. N.N.M. (2006), 209 O.A.C. 331; 209 C.C.C.(3d) 436; 69 W.C.B.(2d) 432 (C.A.), refd to. [para. 36].

Henry v. British Columbia (Attorney General) et al. (2015) 470 N.R. 200; 369 B.C.A.C. 47; 634 W.A.C. 47; 2015 SCC 24, refd to. [para. 38].

R. v. C.D. (2014), 584 A.R. 222; 623 W.A.C. 222; 2014 ABCA 333, refd to. [para. 60].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321; 21 W.C.B.(2d) 369, refd to. [para. 70, footnote 2].

R. v. Cornacchia (J.) (1994), 72 O.A.C. 310; 24 W.C.B.(2d) 127 (C.A.), refd to. [para. 74].

R. v. Godin (M.) (2009), 389 N.R. 1; 252 O.A.C. 377; 2009 SCC 26, refd to. [para. 100].

Counsel:

Trevor N. Bidger, for the Crown;

Jason Edwards, for Fernando Galan.

This application was heard on May 6-7, 2015, at St. John's, N.L., before Mennie, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered judgment orally on May 14, 2015, with written reasons filed on May 27, 2015.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT