R. v. Howe (D.J.) et al., (2016) 375 N.S.R.(2d) 233 (SC)

• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 19, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 375 N.S.R.(2d) 233 (SC);2016 NSSC 184

R. v. Howe (D.J.) (2016), 375 N.S.R.(2d) 233 (SC);

    1182 A.P.R. 233

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JL.022

Her Majesty the Queen v. Duayne Jamie Howe, Patrick Michael James and David John Pearce

(CRH No. 441632; 2016 NSSC 184)

Indexed As: R. v. Howe (D.J.) et al.

Nova Scotia Supreme Court

Rosinski, J.

July 20, 2016.

Summary:

The accused motorcycle club members were arrested on September 20, 2012, and subsequently charged with criminal organization offences. The trial dates were now set for November and December 2016, a delay of approximately 50 months. The accused, who claimed that 33 months of the delay was institutional, applied under s. 24(1) of the Charter for a stay of proceedings on the ground that their right to be tried within a reasonable time was infringed.

The Nova Scotia Supreme Court dismissed the application.

Editor's Note: This case was decided without reference to the Supreme Court of Canada's July 8, 2016, decision in R. v. Jordan (B.R.) et al., reported (2016), 484 N.R. 202, wherein the court re-formulated the R. v. Morin test for unreasonable delay.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Criminal Law - Topic 4505 ].

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - [See Criminal Law - Topic 4505 ].

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 motorcycle club members were arrested on September 20, 2012, and subsequently charged with criminal organization offences - The trial dates were now set for November and December 2016, a delay of approximately 50 months - The accused, who claimed that 33 months of the delay was institutional, applied under s. 24(1) of the Charter for a stay of proceedings on the ground that their right to be tried within a reasonable time was infringed - The Nova Scotia Supreme Court dismissed the application - The court broke down the causes of the delay as follows: September 20 to December 9, 2012 (three months' inherent and to some extent pre-charge delay); December 10, 2012 to January 7, 2013, being the waiting period for new charges to be laid (one month's inherent and to some extent pre-charge delay); January 8 to April 29, 2013, being an adjournment requested by the defence for election and plea (four months' inherent delay); April 30 to December 9, 2013, where the preliminary hearing was set for December 10, 2013 (four months' inherent delay or waived by accused due to unavailable counsel, one month required to accused to prepare and two months' inherent delay); December 18, 2013 to July 13, 2014, where the hearing was adjourned to hear the accused's Khelawon voir dire respecting the testimony of a Crown witness and preliminary inquiry continuation rescheduled for July 14, 2014 (four months' inherent delay or waived by accused and three months' institutional delay); July 17 to November 19, 2014, where the accused were granted an adjournment to request further disclosure of incidental materials (four months' delay waived or attributed to the accused); November 20, 2014 to January 25, 2015, where the accused were granted an adjournment to review disclosure (two months' delay attributable to accused or waived); January 29 to March 26, 2015, where the preliminary hearing adjourned due to snowstorm (two months' inherent delay); March 28 to July 13, 2015, where the decision on the preliminary hearing was delayed due to the late filing of briefs (three and one-half months' inherent delay); July 14 to September 9, 2015, where the accused made their first appearance in the Supreme Court and matter adjourned for pre-trial conference and setting of dates for pre-trial motions and trial (two months' inherent delay); September 11, 2015, to April 3, 2016, where pre-trial motions were heard and trial dates set (three months' institutional delay and four months attributable to the accused); April 5 to June 2, 2016, where the accused were granted an adjournment that delayed pre-trial motions (two months' delay attributable to the accused); and June 4 to December 8, 2016, where trial dates were moved to November and December 2016 (six months' delay attributable to the accused or waived) - The total institutional delay was 8-9 months - Any inferred or actual prejudice to the accused was "immaterial" - There was no infringement of the accused's right to be tried within a reasonable time.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - At issue in determining whether a delay in getting to trial violated an accused's s. 11(b) Charter right to trial within a reasonable time was the period attributed to "institutional delay" - The Nova Scotia Supreme Court suggested the following approach in determining the "institutional delay": "1. Crown and defence counsel will advise the court how many days are likely required to complete the particular matter being set down for hearing; 2. Defence counsel will advise the first opportunity when they could collectively/individually be ready to proceed with the matter; 3. Crown counsel will advise if they are available for the dates suggested by the defence; 4. Once counsel have agreed mutually upon dates they are available, the court will advise counsel of its earliest availability to have the matter heard; if the court cannot accommodate the earliest mutually available dates of counsel, then the institutional delay clock will begin to run at that date, and until it can accommodate the mutually agreed-upon availabilities of Crown and defence counsel." - The court also stated that "where the defence says nothing of its availability and accepts a court date, it should be presumptively considered as inherent neutral delay attributable to no specific party" - See paragraphs 7, 10.

Civil Rights - Topic 3267

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Onus on accused - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Criminal Law - Topic 4505 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Nova Scotia Supreme Court stated that "the failure to produce incidental disclosure, of the sort that does not have the capacity to have some real effect on the right to a fair trial (more specifically to make full answer and defence), will not be capable of constituting a breach of Section 7. Complaints about the lack of production of, or the late disclosure of, such incidental disclosure are therefore properly seen as neutral in effect, particularly the more so where disproportionate resources (time and money) or consequences (delays caused by the Crown gathering and producing the sought after materials) will arise in order to effect their disclosure" - The court held that an earlier disclosure of those materials was not capable of breaching the accused's right to full answer and defence and the four months of delay caused by a vague and not diligently pursued defence request for incidental materials was delay attributable to or waived by the defence - See paragraphs 59, 62.

Counsel:

Glen Scheuer, for the Crown;

Patrick Atherton, for the accused, Duayne Jamie Howe;

Trevor McGuigan, for the accused, Patrick Michael James;

Patrick MacEwen, for the accused, David John Pearce.

This application was heard on May 19, 2016, at Halifax, N.S., before Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following judgment on July 20, 2016.