R. v. Melvin (C.P.), (2015) 356 N.S.R.(2d) 77 (SC)

• Judge: Chipman, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 09, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 356 N.S.R.(2d) 77 (SC);2015 NSSC 13

R. v. Melvin (C.P.) (2015), 356 N.S.R.(2d) 77 (SC);

    1126 A.P.R. 77

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JA.023

Her Majesty the Queen v. Corey Patrick Melvin

(CRH No. 399220; 2015 NSSC 13)

Indexed As: R. v. Melvin (C.P.)

Nova Scotia Supreme Court

Chipman, J.

January 15, 2015.

Summary:

The accused was charged with three counts of assault with a weapon, and one count each of possession of a weapon dangerous to the public peace and assault with a weapon. The first trial was declared a mistrial. The accused applied for a stay of proceedings on the basis of ss. 11(b) and 24 of the Charter, asserting that the delay of three years and 5.5 months between the laying of the charge and the anticipated conclusion of the second trial was excessive.

The Nova Scotia Supreme Court dismissed the application.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - An accused applied for a stay of proceedings on the basis of ss. 11(b) and 24 of the Charter, asserting that the delay of three years and 5.5 months between the laying of the charge and the anticipated conclusion of his second trial (the first trial was declared a mistrial) was excessive - One month and 11 days after the show cause hearing, the accused sought a 14 day adjournment for election because he did not have disclosure - The Crown asserted that the accused waived the 14 day period - The Nova Scotia Supreme Court rejected the Crown's assertion - The accused's counsel made it clear that some important disclosure remained outstanding - The accused agreed with the next date offered by the court - The court attributed the delay to the Crown - See paragraphs 15 and 16.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - An accused applied for a stay of proceedings on the basis of ss. 11(b) and 24 of the Charter, asserting that the delay of three years and 5.5 months between the laying of the charge and the anticipated conclusion of his second trial (the first trial was declared a mistrial) was excessive - On December 5, 2011, the accused had the election adjourned to December 12, 2011, on the basis that he had not received Crown disclosure - On December 12, 2011, the accused was still waiting for disclosure and had the election adjourned to January 23, 2012 - On January 23, 2012, the accused informed the court that he had just recently received disclosure and obtained an adjournment to February 23, 2012, to give his counsel time to review the material - The Crown asserted that the last adjournment of one month and four days should be attributable to the accused's waiver - The accused asserted that the time should be split - The Nova Scotia Supreme Court stated that attributing 18 days to the Crown and 18 days to the accused was reasonable -The accused's counsel had just received the disclosure and, given that it consisted of a DNA report, a period of 2.5 weeks seemed appropriate to review the disclosure - See paragraphs 17 and 18.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - An accused applied for a stay of proceedings on the basis of ss. 11(b) and 24 of the Charter, asserting that the delay of three years and 5.5 months between the laying of the charge and the anticipated conclusion of his second trial (the first trial was declared a mistrial) was excessive - On February 28, 2012, the accused elected trial by judge and jury with a preliminary inquiry - The court proposed June 15, 2012 for the preliminary inquiry - The Crown was unavailable for that date - The court then proposed June 26, 2012 - The Crown and the accused agreed that the date was "fine" - The Crown acknowledged that because it did not agree to the first date offered, it should "wear" 11 days of the delay - The Crown characterized the rest of the time (three months and 18 days) as inherent/neutral, because the accused had consented to the delay with waiver - The accused asserted that the three months and 18 days should be characterized as institutional - The Nova Scotia Supreme Court held that the words "that's fine" amounted to a waiver by the accused - Accordingly, the court ascribed 11 days of the delay to the Crown and the remaining time to waived institutional delay - See paragraphs 18 to 22.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - An accused applied for a stay of proceedings on the basis of ss. 11(b) and 24 of the Charter, asserting that the delay of three years and 5.5 months between the laying of the charge and the anticipated conclusion of his second trial (the first trial was declared a mistrial) was excessive - On September 6, 2012, during a Crownside appearance, initial trial dates were set for almost a year later - Throughout that appearance, the Crown and the accused went back and forth on available and unavailable dates - The Crown asserted that taken as a whole, the accused's words should be regarded as waiver - The accused asserted that the 362 day delay should be regarded as institutional and borne by the Crown - The Nova Scotia Supreme Court stated that it was difficult to classify this period because the court gave no indication of when the earliest available dates were for the trial - The court did not regard the accused's counsel's initial comments that she was not available until the end of March to be unreasonable, nor should they be read in the context of delaying the matter - In any event, the Crown's response was that they were unavailable until late April - Even then the Crown did not realistically avail itself for the trial - In the result, the jury term necessitated that the court look to the early part of September and ultimately, the parties agreed to September 3-16, 2012 - It turned out that the Crown was unavailable for the trial commencing September - A January 31, 2013 Crownside resulted in the trial being rescheduled to commence on November 25, 2013 - During that appearance, the accused's counsel not only readily consented to the later trial dates, she indicated that the accused was comfortable with the matter going into January 2014 - That rather critical statement revealed that the accused waived the nine months and 25 days between January 31, 2013 and November 25, 2013 - The previous four months and 25 days was institutional/Crown delay - See paragraphs 30 to 33.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - An accused applied for a stay of proceedings on the basis of ss. 11(b) and 24 of the Charter, asserting that the delay of three years and 5.5 months between the laying of the charge and the anticipated conclusion of his second trial was excessive - The first trial had been declared a mistrial due to his counsel having a conflict of interest - On December 12, 2013, seven days after the mistrial, the accused appeared in court without counsel - The Crown wanted to move the matter forward - The court was cautious given the accused's stated intention to obtain new counsel - Trial dates were not set and the matter was set over until January 16, 2014 - On January 16, 2014, the accused still did not have a lawyer but indicated that he had an appointment for February 3, 2014 and believed that he would have new counsel after that date - The matter was set over to February 6, 2014 - On February 6, 2014, 63 days after the mistrial, the accused appeared with counsel - The accused acknowledged that the 63 days was either defence or inherent delay - The trial was set for the earliest available date (February 2, 2015) - The Nova Scotia Supreme Court stated that there was no evidence that the accused or his counsel had exhibited prior conduct that suggested that they wished to proceed expeditiously - As a result, the court attributed one month of the passage of time after the mistrial to inherent delay, one month to the accused, and one year to institutional delay, waived by the accused such that it was to be considered neutral - See paragraphs 36 to 49.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - An accused applied for a stay of proceedings on the basis of ss. 11(b) and 24 of the Charter, asserting that the delay of three years and 5.5 months between the laying of the charge and the anticipated conclusion of his second trial (the first trial was declared a mistrial) was excessive - The Nova Scotia Supreme Court dismissed the application - The court reviewed the causes of the delay and found that the Crown was responsible for only approximately 7.5 months' delay - The court attributed 1.5 months of the delay to the accused and classified the remaining 32.5 months as neutral as they were inherent or institutional or waived by the accused - The delay of 7.5 months was well within the outer limit of 14-18 months - See paragraphs 9 to 55.

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 - [See all Civil Rights - Topic 3262 ].

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 - An accused applied for a stay of proceedings on the basis of ss. 11(b) and 24 of the Charter, asserting that the delay of three years and 5.5 months between the laying of the charge and the anticipated conclusion of his second trial (the first trial was declared a mistrial) was excessive - Nineteen days had passed between the laying of the charges and the next court appearance - The parties agreed that generally this passage of time should be considered inherent - However, the accused asserted that because too much time had passed from the altercation that lead to the charges (August 16, 2011) and the laying of the charges (September 7, 2011), the 19 days should be attributed to the Crown - The Nova Scotia Supreme Court agreed that the passage of nearly three weeks was on the high side, but it was not so lengthy that the court should attribute it to the Crown - See paragraph 11.

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 - An accused applied for a stay of proceedings on the basis of ss. 11(b) and 24 of the Charter, asserting that the delay of three years and 5.5 months between the laying of the charge and the anticipated conclusion of his second trial (the first trial was declared a mistrial) was excessive - Seventeen days had passed between the date that the accused was scheduled for a show cause hearing and the show cause hearing - The accused agreed with the Crown that this was part of the intake process and should generally be considered neutral - However, the accused asserted that 11 days was "somewhat excessive" such that it was institutional delay which should be attributed to the Crown - The Nova Scotia Supreme Court rejected the assertion - Holding the bail decision over for 11 days was not an inordinate amount of the time - The court classified the period as inherent/neutral - See paragraph 13.

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 - An accused applied for a stay of proceedings on the basis of ss. 11(b) and 24 of the Charter, asserting that the delay of three years and 5.5 months between the laying of the charge and the anticipated conclusion of his second trial (the first trial was declared a mistrial) was excessive - One month and 11 days after the show cause hearing, the accused sought an adjournment for election - The Crown asserted that bail proceedings were part of the intake process and thus the time following that appearance should be considered inherent/neutral - The accused took issue with the Crown's characterization, noting that he had ultimately been granted bail - The Nova Scotia Supreme Court stated that, considering the context of the period being part of the intake process and the time in question being just over 40 days, there was no reason why this period should be classified as anything other than inherent/neutral - See paragraph 14.

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 - An accused applied for a stay of proceedings on the basis of ss. 11(b) and 24 of the Charter, asserting that the delay of three years and 5.5 months between the laying of the charge and the anticipated conclusion of his second trial (the first trial was declared a mistrial) was excessive - The accused's last appearance in Provincial Court was for his June 27, 2012 preliminary inquiry - The accused was committed on all counts and the matter was then scheduled for arraignment in Supreme Court - The Nova Scotia Supreme Court held that the arraignment to set pretrial and trial dates was inherent and should be classified as neutral - See paragraph 23.

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 - An accused applied for a stay of proceedings on the basis of ss. 11(b) and 24 of the Charter, asserting that the delay of three years and 5.5 months between the laying of the charge and the anticipated conclusion of his second trial (the first trial was declared a mistrial) was excessive - On July 5, 2012, the accused made his first appearance in the Supreme Court - This was a Crownside appearance for scheduling the trial - During the appearance, the accused's counsel indicated that she understood that July 20, 2012 was the first available date for a pretrial conference - She asked that the matter return to Crownside on September 6 for setting of trial dates - The accused asserted that the 15 day delay between the time of the first Crownside and the pretrial conference should be classified as institutional delay borne by the Crown - The Nova Scotia Supreme Court held that, given the discussions respecting the pretrial date, an inherent part of any case, the delay should be classified as inherent/neutral - See paragraphs 26 to 28.

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 - An accused applied for a stay of proceedings on the basis of ss. 11(b) and 24 of the Charter, asserting that the delay of three years and 5.5 months between the laying of the charge and the anticipated conclusion of his second trial (the first trial was declared a mistrial) was excessive - The Nova Scotia Supreme Court held that the nine days of trial prior to the mistrial had to be regarded as inherent/neutral delay - The mistrial was not the fault of the Crown or the accused - It was due to the accused's counsel having a conflict - See paragraphs 34 and 36.

Cases Noticed:

R. v. Hartlen (J.W.) (2014), 354 N.S.R.(2d) 68; 1120 A.P.R. 68; 2014 NSSC 456, refd to. [para. 7].

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. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 21].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 21].

R. v. Khan (K.) (2011), 277 O.A.C. 165 (C.A.), refd to. [para. 23].

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. 25].

Counsel:

Eric R. Woodburn, for the Crown;

Patrick K. MacEwen, for Corey Patrick Melvin.

This application was heard at Halifax, Nova Scotia, on January 9, 2015, by Chipman, J., of the Nova Scotia Supreme Court, who delivered the following judgment on January 15, 2015.