R. v. Kemp (R.R.), (2016) 368 N.S.R.(2d) 281 (SC)

• Jurisdiction: Nova Scotia
• Judge: Arnold, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Citation: (2016), 368 N.S.R.(2d) 281 (SC),2016 NSSC 7
• Date: 05 January 2016

R. v. Kemp (R.R.) (2016), 368 N.S.R.(2d) 281 (SC);

    1160 A.P.R. 281

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JA.004

Rodney Raymond Kemp (applicant) v. Her Majesty the Queen (respondent)

(CRH No. 435674; 2016 NSSC 7)

Indexed As: R. v. Kemp (R.R.)

Nova Scotia Supreme Court

Arnold, J.

January 5, 2016.

Summary:

The accused was charged with possession of marijuana for the purpose of trafficking, trafficking in marijuana, and conspiracy to traffic in marijuana. He was charged on December 12, 2012. His preliminary inquiry was held between November 2013 and January 2015. The original trial date was scheduled for June 2015, but adjourned to January 2016. Prior to the trial commencing, the accused applied under s. 24(1) of the Charter for a stay of proceedings on the ground that his s. 11(b) right to be tried within a reasonable time was denied by the 38 month delay from the date of the charge to the likely conclusion of the trial.

The Nova Scotia Supreme Court allowed the application. Of the 38 month delay, 28 months was attributable to the Crown. That delay violated the accused's right to be tried within a reasonable time.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - An accused argued that his right to be tried within a reasonable time was infringed - Part of the delay resulted from an adjournment due to the late preparation of transcripts - The accused waived that delay - Shortly thereafter, the Crown gave notice of its intention to introduce wiretap evidence, which it previously indicated would not be admitted - The Nova Scotia Supreme Court stated that "The applicant could not be said to have properly waived his ability to raise delay in relation to this time when he was not aware that the Crown was reversing its previously stated position to call no wiretap evidence and was then going to introduce wiretap evidence late in the proceedings. Such a reversal of the Crown's position on the introduction of wiretap evidence certainly opens the door to the applicant to rescind their waiver. The Crown's change in their position vitiates the applicant's waiver of delay issues." - See paragraph 140.

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 possession of marijuana for the purpose of trafficking, trafficking in marijuana, and conspiracy to traffic in marijuana - He was charged on December 12, 2012 - After many disclosure issues, a preliminary hearing, adjournments and pre-trial motions, the trial was scheduled to be completed in January 2016, 38 months after the accused was charged - The Nova Scotia Supreme Court allowed the accused's application to stay the proceedings on the ground that his s. 11(b) Charter right to be tried within a reasonable time was infringed - This was a "complex" case, but not the "most complicated" - Of that 38 month period, 28 months was attributable to the Crown because of "Delays related to the unavailability of Crown witnesses, lack of back-up Crown witnesses, requests for adjournments to allow for ongoing investigation into the Blackberry, underestimating the number of Crown witnesses needed for trial and the length of trial and the last minute decision to rely on wiretap evidence contrary to an earlier stated position and without providing disclosure" - Although there was little evidence of actual prejudice, "some prejudice must be inferred given the sheer passage of time" - In these circumstances, the 28 month delay was unacceptable and required that the charges be stayed.

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 applied for stay of drug charges on the ground that his s. 11(b) Charter right to be tried within a reasonable time was denied, partly due to delays caused by late Crown disclosure of the results of a forensic examination of his smart phone, which the Crown had technical difficulties in accessing - The Nova Scotia Supreme Court stated that "the obligation on the Crown is to disclose to the accused all relevant evidence in their possession. The police have a related duty to disclose to the Crown all relevant evidence in their possession. Where disclosure exists but is not provided in a timely fashion due to inattention on the part of the Crown and/or the police, that time could be attributed to the Crown. Where the Crown wants to rely on expert or scientific evidence, the creation of which was delayed due to inattention of the police and/or the Crown, that time could also be attributed to the Crown." - See paragraph 46.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See first Civil Rights - Topic 3265].

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 Crown not only has a duty to disclose all information reasonably capable of affecting an accused's ability to make full answer and defence, but also to disclose all information reasonably capable of affecting an accused's ability to make full answer and defence early enough to leave the accused adequate time to take any steps they would be expected to take that affect or may affect such a right. These disclosure obligations extend to all material in the hands of the prosecuting entity. ... The accused does not have the right to perfect disclosure before electing a mode of trial. ... An accused will often be justified in seeking an adjournment or refusing to proceed to the next step in the proceeding where outstanding disclosure consists of material that is relevant and significant to the Crown's case. The diligence of the accused in seeking disclosure may be important" - See paragraphs 36 to 40.

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. 7].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 7].

R. v. Godin (M.) (2009), 389 N.R. 1; 252 O.A.C. 377; 2009 SCC 26, refd to. [para. 8].

R. v. R.E.W. (2011), 298 N.S.R.(2d) 154; 945 A.P.R. 154; 2011 NSCA 18, refd to. [para. 9].

R. v. Murtha (R.) (2013), 329 N.S.R.(2d) 111; 1042 A.P.R. 111; 2013 NSPC 28, refd to. [para. 9].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 10].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81, refd to. [para. 13].

R. v. Ward (M.) et al. (2010), 290 N.S.R.(2d) 32; 920 A.P.R. 32; 2010 NSSC 66, refd to. [para. 14].

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. 83, refd to. [para. 18].

R. v. Cater (K.) et al. (2011), 309 N.S.R.(2d) 129; 979 A.P.R. 129; 2011 NSPC 80, refd to. [para. 26].

R. v. MacIntosh (E.F.) (2011), 310 N.S.R.(2d) 274; 983 A.P.R. 274; 2011 NSCA 111, refd to. [para. 28].

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

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81; 82 C.C.C.(3d) 193, refd to. [para. 36].

R. v. McNeil (L.) (2009), 383 N.R. 1; 246 O.A.C. 154; 2009 CarswellOnt 116; 2009 SCC 3, refd to. [para. 37].

R. v. Aranda (1992), 69 C.C.C.(3d) 420 (Ont. Gen. Div.), refd to. [para. 38].

R. v. Kiameh (B.P.), [2009] O.T.C. Uned. D22 (Sup. Ct.), refd to. [para. 39].

R. v. N.N.M. (2006), 209 O.A.C. 331; 209 C.C.C.(3d) 436 (C.A.), refd to. [para. 40].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 43].

R. v. Fraser (A.) (2011), 306 N.S.R.(2d) 201; 968 A.P.R. 201; 2011 NSCA 70, refd to. [para. 44].

R. v. Buric (G.J.) et al. (1996), 90 O.A.C. 321 (C.A.), affd. [1997] 1 S.C.R. 535; 209 N.R. 241; 98 O.A.C. 398, refd to. [para. 45].

R. v. Jennings (W.B.) (2011), 310 Nfld. & P.E.I.R. 44; 963 A.P.R. 44; 2011 CarswellNfld 59; 2011 NLTD(G) 28, refd to. [para. 47].

R. v. Bellamy (W.), [2008] O.T.C. Uned. S89 (Sup. Ct.), refd to. [para. 48].

R. v. Lahiry (P.), [2011] O.T.C. Uned. 6780; 283 C.C.C.(3d) 525; 2011 ONSC 6780 (Sup. Ct.), refd to. [para. 49].

R. v. Daponte, 2014 ONSC 4596, 2014 CarswellOnt 10933 (Sup. Ct.), refd to. [para. 51].

R. v. Walker (N.) (2013), 423 Sask.R. 125; 588 W.A.C. 125; 2013 SKCA 95, refd to. [para. 52].

R. v. Wolfe (J.D.) (2012), 547 A.R. 300; 2012 CarswellAlta 1495; 2012 ABPC 245, refd to. [para. 53].

R. v. Wills (1992), 52 O.A.C. 321 (C.A.), refd to. [para. 139].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 185].

R. v. Morelli - see R. v. U.P.M.

R. v. U.P.M. (2010), 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 186].

Counsel:

Patrick K. MacEwen, for the applicant;

Jeffrey S. Moors, for the respondent.

This application was heard on June 8-9, 2015, at Halifax, N.S., before Arnold, J., of the Nova Scotia Supreme Court, who delivered the following judgment on January 5, 2016.