R. v. Lanuza (A.S.), 2011 MBQB 248

• Judge: McKelvey, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: October 19, 2011
• Jurisdiction: Manitoba
• Citations: 2011 MBQB 248;(2011), 287 Man.R.(2d) 1 (QB)

R. v. Lanuza (A.S.) (2011), 287 Man.R.(2d) 1 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. JA.020

Her Majesty The Queen v. Arnold S. Lanuza (accused)

(CR 10-01-30797; 2011 MBQB 248)

Indexed As: R. v. Lanuza (A.S.)

Manitoba Court of Queen's Bench

Winnipeg Centre

McKelvey, J.

October 19, 2011.

Summary:

The accused was charged with firearms and weapons offences, aggravated assault (four counts) and assault with a weapon. The charges related to a shooting of a number of individuals outside a nightclub on July 22, 2007. The accused was jointly charged with a co-accused with respect to the offences on August 1, 2007. The defence contended that the delay with respect to the matter proceeding to trial (53 months from the date the charges were laid to the anticipated conclusion of the trial) had been unreasonable and a judicial stay should be entered.

The Manitoba Court of Queen's Bench dismissed the motion. The accused failed to prove a breach of s. 11(b) of the Charter.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Within a reasonable time - What constitutes - The accused was charged with firearms and weapons offences, aggravated assault (four counts) and assault with a weapon - The charges related to a shooting of a number of individuals outside a nightclub on July 22, 2007 - The accused was jointly charged with a co-accused with respect to the offences on August 1, 2007 - The defence contended that the delay with respect to the matter proceeding to trial (53 months from the date the charges were laid to the anticipated conclusion of the trial) had been unreasonable and a judicial stay should be entered - The Manitoba Court of Queen's Bench dismissed the motion - The delay was serious and fell well beyond the Morin administrative guidelines - The Crown was accountable for approximately one year of the delay - Very little of the delay could be attributed to the accused - However, a judicial stay was an exceptional remedy which should only be granted in the clearest of cases - Much of the delay rested with the unavailability of counsel for the co-accused, as well as the unfitness of the co-accused to proceed to preliminary inquiry in June 2010 - Those factors had to be considered inherent and part of the complexity of a trial with a co-accused - With multiple accused, it became more difficult to align schedules and it was common that delays would transpire - Such delays had to be regarded as a neutral consideration - While the accused had experienced some prejudice, that prejudice had to be balanced against the societal interest in bringing the accused to trial with adjudication on the merits of these serious charges - In all of the circumstances, the accused failed to prove a breach of s. 11(b) of the Charter.

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 - The accused was charged with firearms and weapons offences, aggravated assault (four counts) and assault with a weapon - The charges related to a shooting of a number of individuals outside a nightclub on July 22, 2007 - The accused was charged with the offences on August 1, 2007 - The defence contended that the delay with respect to the matter proceeding to trial (53 months from the date the charges were laid to the anticipated conclusion of the trial) had been unreasonable and a judicial stay should be entered - The accused submitted that the length of time that the charges had been before the court had occasioned personal and financial stress as well as hardship upon him - The Manitoba Court of Queen's Bench stated that in assessing the reasonableness of delay, prejudice must have been caused by the delay associated with the charges, and not by the charges themselves - The fact that the accused had had difficulty securing employment was in all likelihood substantially a result of the charges and not the delay - The fact that he had incurred a debt related to his legal defence - Prejudice could be inferred from the length of the delay and the court was satisfied that the accused had suffered some prejudice - The stigma of the charges, a restrictive curfew when it was in place, the employability/financial issues, and the passage of time had created that prejudice - However, the court stated that "the charges in this case are very serious. The case law has held that a finding of prejudice is not enough ... It must also be remembered that society has an interest in ensuring that an accused is brought to trial as soon as is reasonably possible" - See paragraphs 39 to 44.

Cases Noticed:

R. v. Barkman (T.K.) (2004), 190 Man.R.(2d) 75; 335 W.A.C. 75; 2004 MBCA 151, refd to. [para. 4].

R. v. George (D.P.) (2006), 208 Man.R.(2d) 300; 383 W.A.C. 300; 2006 MBCA 150, refd to. [para. 4].

R. v. Ghavami (N.) (2010), 284 B.C.A.C. 286; 481 W.A.C. 286; 253 C.C.C.(3d) 74; 2010 BCCA 126, refd to. [para. 4].

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. 4].

R. v. Thomson (K.) et al. (2006), 230 B.C.A.C. 128; 380 W.A.C. 128; 211 C.C.C.(3d) 465; 2006 BCCA 392, refd to. [para. 4].

R. v. N.N.M. (2006), 209 O.A.C. 331; 209 C.C.C.(3d) 436 (C.A.), refd to. [para. 4].

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. 4].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 4].

R. v. Seaman (S.D.) (2010), 256 Man.R.(2d) 187; 2010 MBQB 181, refd to. [para. 4].

R. v. Gitzel (1991), 70 Man.R.(2d) 295 (Q.B.), refd to. [para. 4].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81, refd to. [para. 4].

R. v. Bozowskyi (D.), [2007] O.T.C. Uned. N27 (Sup. Ct.), refd to. [para. 4].

R. v. Stensrud and Smith (G.W.) (1988), 67 Sask.R. 269 (C.A.), refd to. [para. 4].

R. v. Zuk (R.), [2008] O.T.C. Uned. M58 (Sup. Ct.), refd to. [para. 4].

R. v. Friesen (T.) (2010), 259 Man.R.(2d) 179; 2010 MBQB 250, refd to. [para. 4].

R. v. Kporwodu (A.) et al. (2005), 196 O.A.C. 272; 75 O.R.(3d) 190 (C.A.), refd to. [para. 4].

R. v. Tran (V.H.) (2008), 232 Man.R.(2d) 113; 2008 MBQB 210, refd to. [para. 4].

R. v. Pearce (M.L.) (2011), 263 Man.R.(2d) 133; 2011 MBQB 63, refd to. [para. 4].

R. v. C.L.S., 2011 MBQB 27, refd to. [para. 4].

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. 5].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 45].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(b) [para. 3].

Counsel:

K. Dale Harvey and Deborah L. Carlson, for the Crown;

Roberta L. Campbell, for the accused.

This motion was heard before McKelvey, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on October 19, 2011.