R. v. J.E.K., [2016] A.R. TBEd. JN.002

• Judge: Fraser, C.J.A., Rowbotham and McDonald, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 09, 2016
• Citations: [2016] A.R. TBEd. JN.002;2016 ABCA 171

R. v. J.E.K., [2016] A.R. TBEd. JN.002

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2016] A.R. TBEd. JN.002

Her Majesty the Queen (appellant) v. J.E.K. (respondent)

(1501-0071-A; 2016 ABCA 171)

Indexed As: R. v. J.E.K.

Alberta Court of Appeal

Fraser, C.J.A., Rowbotham and McDonald, JJ.A.

June 6, 2016.

Summary:

The accused was charged with sexual assault and sexual touching of a child. The accused sought a stay of the charges, alleging that there had been breaches of s. 11(b) of the Charter (right to trial within a reasonable time), s. 7 (right to life, liberty and security of the person), and s. 11(d) (right to a fair trial).

The Alberta Provincial Court granted the stay on all three Charter grounds, however, his analysis dealt only with s. 11(b). The Crown appealed.

The Alberta Court of Appeal allowed the appeal, set aside the judicial stay and directed the matter back to the Provincial Court for trial.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - In January 2012, the accused was charged with sexual assault and sexual touching of his two stepdaughters during the first half of 2011 - The trial was scheduled for April 2015 - However, on February 27, 2015, a Provincial Court judge stayed the charges because the delay of over 30 months constituted a breach of the accused's right to be tried within a reasonable time (Charter, s. 11(b)) and because of a failure by the Crown to provide timely disclosure - The Crown appealed - The Alberta Court of Appeal allowed the appeal and set aside the stay - The Provincial Court judge erred in his characterization of certain delay periods (e.g., delays in disclsoure) - There was no breach of s. 11(b) - The court held that its decision would have been the same whether the matter was reviewed on the correctness or reasonableness standard - See paragraphs 23 to 73.

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 8581.2 ].

Civil Rights - Topic 8581.2

Canadian Charter of Rights and Freedoms - Practice - Judicial review (incl. standard of review) - The Alberta Court of Appeal stated that "The characterization of periods of delay, and the ultimate decision concerning the reasonableness of a period of delay, are both reviewed on a standard of correctness ... However, the underlying fact findings are reviewable on the standard of palpable and overriding error. We acknowledge there is currently division amongst appellate courts in Canada on whether the standard of review on the ultimate decision is correctness or reasonableness. Alberta, along with Ontario and British Columbia, has concluded that it is correctness while Manitoba, Saskatchewan and Nova Scotia have concluded it is reasonableness ... That said, this divergence may make little difference in practice ... It has been long accepted that, where the delay of trial is unreasonable under s 11(b) of the Charter, a stay of proceedings is the just and appropriate remedy ... With such a zero-sum remedy in mind, however, the law has eschewed a purely arithmetical approach to assessing delay, particularly when the approach embodies incorrect characterizations of delay periods" - See paragraphs 10 and 11.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Alberta Court of Appeal stated that "While it is true that the Crown has an ongoing obligation to disclose relevant information that comes to light, that obligation is linked to the right to a fair trial and to make full answer and defence. Where an accused asserts a disclosure delay, the fact of that delay must be shown to have had some real effect on the right to a fair trial and to make full answer and defence in order to be itself a Charter breach. In other words, delay in Crown disclosure may not require delay of the trial, much less delay in setting either the date for a preliminary inquiry or a trial date. The judge in this case seemed to think that any sort of disclosure had to be rectified before a trial date, indeed before a preliminary inquiry date, could even be set. In the context here, that was unrealistic and presumed some sort of anticipatory Charter breach. It amounted to a notion that outstanding disclosure, no matter how trivial or technical, and no matter that disclosure review (especially with respect to third party records) is restricted to the trial judge hearing the trial itself, somehow puts the case into stasis with the clock ticking against the Crown. This is simply not so" - See paragraph 66.

Counsel:

B.R. Graff, for the appellant;

A.A. Sanders, for the respondent.

This appeal was heard in Calgary, Alberta, on February 9, 2016, before Fraser, C.J.A., Rowbotham and McDonald, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was filed by the court on June 6, 2016.