R. v. Martin (G.W.), (2016) 445 N.B.R.(2d) 268 (TD)

• Judge: DeWare, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: January 15, 2016
• Jurisdiction: New Brunswick
• Citations: (2016), 445 N.B.R.(2d) 268 (TD);2016 NBQB 42

R. v. Martin (G.W.) (2016), 445 N.B.R.(2d) 268 (TD);

    445 R.N.-B.(2e) 268; 1166 A.P.R. 268

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.B.R.(2d) TBEd. MR.032

Renvoi temp.: [2016] N.B.R.(2d) TBEd. MR.032

Her Majesty The Queen v. George W. Martin

(NCR/11/07; 2016 NBQB 42; 2016 NBBR 42)

Indexed As: R. v. Martin (G.W.)

Répertorié: R. v. Martin (G.W.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Miramichi

DeWare, J.

February 11, 2016.

Summary:

Résumé:

The accused lawyer was charged with obstruction of justice. On May 30, 2005, the accused received a telephone call from a client, Wedge, who had just been arrested for possession of illegal tobacco. After speaking to Wedge, the accused telephoned Wedge's wife and counseled her to dispose of evidence which might be at the Wedge home. The conversation between the accused and the wife was intercepted by the RCMP and formed the basis of the evidence against the accused. The accused brought a motion, asserting that the conversation was intercepted in violation of s. 8 of the Charter and should be excluded from evidence pursuant to s. 24(2) of the Charter.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported (2012), 409 N.B.R.(2d) 27; 1062 A.P.R. 27, dismissed the motion. The accused was convicted by a jury of obstruction of justice. Some days after the verdict and discharge of the jury, the accused and his counsel were advised that while the jury was in deliberations one of the jurors was permitted to leave the jury room and the courthouse building, where he was alleged to have made telephone calls on his cell phone. It was also alleged that some members of the jury remained in the jury room while others were outside during this same period. The accused brought a motion requesting that the court conduct an inquiry into the events to determine whether there had been a miscarriage of justice, and if so, that it declare a mistrial on the grounds that the accused was denied the right to a fair and impartial trial.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2013), 409 N.B.R.(2d) 45; 1062 A.P.R. 45, dismissed the accused's motion for a mistrial where it lacked jurisdiction. The court proceeded with an inquiry into both aspects of the alleged juror conduct that would not offend the jury secrecy rule. The accused appealed from the conviction. The evidence from the inquiry formed part of the record for consideration on the appeal.

The New Brunswick Court of Appeal, in a judgment reported (2015), 438 N.B.R.(2d) 17; 1141 A.P.R. 17, allowed the appeal, ordering a new trial. The accused now applied under s. 24(1) of the Charter for a stay of proceedings on the ground that the 10 year delay between the charge and the new trial violated his s. 11(b) right to be tried within a reasonable time.

The New Brunswick Court of Queen's Bench, Trial Division, granted a stay of proceedings.

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 lawyer was charged in April 2006 with obstruction of justice - In November 2008, he was acquitted - In June 2010, the Crown's appeal was allowed and a new trial was ordered - Leave to appeal to the Supreme Court of Canada was denied in January 2011 - The second trial in May 2013 resulted in a conviction by a jury - The accused moved for a mistrial due to jury misconduct - In July 2015, a third trial was ordered due to jury misconduct - The accused now applied under s. 24(1) of the Charter for a stay of proceedings on the ground that his s. 11(b) Charter right to be tried within a reasonable time was denied - The accused argued prejudice due to financial losses caused by his inability to practice (suspended by Law Society) and the health problems he suffered (heart) due to the stress caused by the inordinate delay - The New Brunswick Court of Queen's Bench, Trial Division, granted a stay of proceedings - The court stated that "the overall length of the delay in this matter is exorbitant despite the fact that there are frequently valid and reasonable excuses for these delays" - The delays were attributable as follows: 44.4 months being inherent time requirements of the case; 19.9 months involving the actions and requests of the accused; 20 months involving actions and requests of the Crown; 37.5 months in delays due to the two appeals - Although there was Supreme Court of Canada precedent that appellate delay was irrelevant in a s. 11(b) analysis, this case was distinguishable because the second appellate delay (18.8 months) resulted from irregularities in the jury process due to sheriffs falling short in the exercise of their duties - Accordingly, the entire delay between the second trial and the third trial (including the 18.8 month appellate delay) was considered as institutional delay - The overall delay of 121 months was unacceptable - The institutional or Crown delay of 39 months was beyond acceptable guidelines provided in R. v. Morin - The accused established both actual and inferred prejudice - While society deserved to have all charges adjudicated, the interests of justice favoured a stay rather than proceeding with a third trial for a charge of obstruction of justice.

Civil Rights - Topic 3270.02

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Delay between trials (incl. appellate delay) - [See Civil Rights - Topic 3265 ].

Civil Rights - Topic 8374

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

Cases Noticed:

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 23].

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

R. v. Potvin, [1993] 2 S.C.R. 880; 155 N.R. 241; 66 O.A.C. 81, refd to. [para. 35].

R. v. Barros (R.) (2014), 584 A.R. 362; 623 W.A.C. 362 (C.A.), refd to. [para. 36].

R. v. Kokopenace (C.), [2015] 2 S.C.R. 398; 471 N.R. 1; 332 O.A.C. 1, refd to. [para. 38].

R. v. Kemp (R.R.) (2016), 368 N.S.R.(2d) 281; 1160 A.P.R. 28; 2016 NSSC 7, refd to. [para. 44].

Counsel:

Avocats:

Sébastien A. Michaud, for the Crown;

Daniel R. Jardine and Brittany E.H. Sullivan, for the accused.

This application was heard on January 15, 2016, before DeWare, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Miramichi, who delivered the following judgment on February 11, 2016.