R. v. Gardner (A.P.),

• Jurisdiction: Manitoba
• Judge: Allen, P.C.J.
• Neutral Citation: 2013 MBPC 5
• Citation: (2012), 289 Man.R.(2d) 1 (PC),2013 MBPC 5,289 ManR(2d) 1,(2012), 289 ManR(2d) 1 (PC),289 Man.R.(2d) 1
• Date: 02 November 2012
• Court: Provincial Court of Manitoba (Canada)

R. v. Gardner (A.P.) (2012), 289 Man.R.(2d) 1 (PC)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. JA.019

In The Matter Of: Sections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms

And In The Matter Of: The Constitutional Questions Act, R.S.M., c. C-180

Her Majesty The Queen v. Aaron Padraig Gardner

(2013 MBPC 5)

Indexed As: R. v. Gardner (A.P.)

Manitoba Provincial Court

Allen, P.C.J.

November 2, 2012.

Summary:

The accused was charged with operating a motor vehicle while impaired and operating a motor vehicle while having an excessive blood-alcohol level, contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Code, as well as an offence under s. 213(1) of the Highway Traffic Act. The accused applied under ss. 11(b) and 24 of the Charter alleging a breach of his right to be tried within a reasonable time.

The Manitoba Provincial Court 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" - [See Civil Rights - Topic 3270 ].

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - Arising from an incident on January 1, 2011, the accused was charged with operating a motor vehicle while impaired and operating a motor vehicle while having an excessive blood-alcohol level, contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Code, as well as an offence under s. 213(1) of the Highway Traffic Act - The matter was adjourned or delayed several times at the request of the defence and the original trial date that was set (April 19, 2012) was later than earlier available dates - The trial date was later changed to May 11, 2012, because of a change in the scheduled judge's calendar - Late Crown disclosure resulted in an adjournment from the May 11, 2012 trial date to a trial date of December 17, 2012 - There was a period of 22.5 months from the date of the charges to the December 17, 2012 trial date - The accused applied under ss. 11(b) and 24 of the Charter alleging a breach of his right to be tried within a reasonable time - The Manitoba Provincial Court dismissed the application - The accused did not provide evidentiary support for his allegations of prejudice - It was necessary that some form of corroboration be provided for his allegations that he suffered from stress and anxiety and financial prejudice - Such evidence should relate to the prejudice resulting from the delay, not from the charges themselves - The accused also alleged that his memory of the events was fading - Any prejudice in that regard was mitigated by the fact that the case essentially turned on the admissibility of breath readings - The accused's recollection of the events could also be assisted by the presence of video evidence - The court also considered the accused's lack of complaint throughout the process - The court concluded that the 22.5 month delay was not unreasonable - While the accused may have suffered some prejudice, it was relatively minor and when balanced against the societal interest to have the charges adjudicated on their merits, a judicial stay was not justified.

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. 10].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 10].

R. v. George (D.P.) (2006), 208 Man.R.(2d) 300; 383 W.A.C. 300 (C.A.), refd to. [para. 13].

R. v. Barkman (T.K.) (2004), 190 Man.R.(2d) 75; 335 W.A.C. 75; 2004 CarswellMan 404; 2004 MBCA 151, refd to. [para. 15].

R. v. Nikkel (D.J.) (2007), 219 Man.R.(2d) 226 (Q.B.), affd. (2009), 240 Man.R.(2d) 1; 456 W.A.C. 1 (C.A.), refd to. [para. 26].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81, refd to. [para. 33].

R. v. Pearce (M.L.) (2011), 263 Man.R.(2d) 133 (Q.B.), refd to. [para. 35].

R. v. Godin (M.), [2009] 2 S.C.R. 3; 389 N.R. 1; 252 O.A.C. 377; 2009 SCC 26, refd to. [para. 36].

R. v. Martin (J.D.), [2000] B.C.T.C. 516; 5 M.V.R.(4th) 223; 2000 BCSC 1043, refd to. [para. 40].

R. v. Bazinet (M.A.) (2002), 173 B.C.A.C. 71; 283 W.A.C. 71; 2002 BCCA 536, refd to. [para. 41].

R. v. Li (A.) et al. (2012), 292 O.A.C. 60 (C.A.), refd to. [para. 42].

R. v. Campagnaro (C.), [2005] O.A.C. Uned. 512 (C.A.), refd to. [para. 43].

R. v. Nadarajah (K.) et al. (2009), 245 O.A.C. 243 (C.A.), refd to. [para. 45].

R. v. Divanandamoorthy, [2012] O.J. No. 2859 (C.J.), refd to. [para. 51].

R. v. Seaman (S.D.) (2010), 256 Man.R.(2d) 187; 2010 CarswellMan 465 (Q.B.), refd to. [para. 54].

R. v. Findlater (N.) (2012), 298 O.A.C. 90 (C.A.), refd to. [para. 55].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(b) [para. 2].

Counsel:

Todd Rambow, for the Crown;

Greg Bauman, for the accused.

This application was heard at Flin Flon, Manitoba, before Allen, P.C.J., of the Manitoba Provincial Court, who delivered the following judgment on November 2, 2012.