R. v. Nethery (M.E.)

• Jurisdiction: Alberta
• Court: Provincial Court of Alberta (Canada)
• Judge: Allen, P.C.J.
• Citation: (2005), 395 A.R. 155 (PC),2005 ABPC 343
• Date: 19 December 2005

R. v. Nethery (M.E.) (2005), 395 A.R. 155 (PC)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. FE.033

Her Majesty the Queen v. Murray Ellis Nethery (030845457P101001; 002; 2005 ABPC 343)

Indexed As: R. v. Nethery (M.E.)

Alberta Provincial Court

Allen, P.C.J.

December 19, 2005.

Summary:

An accused was charged with driving while having an excessive blood-alcohol level and impaired driving. The accused objected to the breath technician testifying at trial on the basis that the Crown had not provided the notice for expert testimony required by s. 657.3(3) of the Criminal Code. The accused also asserted that the Crown had contravened his s. 7 Charter right to disclosure. The accused sought a stay of proceedings or costs pursuant to s. 24(1) of the Charter.

The Alberta Provincial Court, in a decision reported at 374 A.R. 124, held that the Crown was not required to provide notice under s. 657.3(3). The court concluded that the Crown had failed in its disclosure duty, but held that it was not appropriate to grant a stay or award costs pursuant to s. 24(1). The main investigator subsequently took the stand with copies of her notebook entries and testified that she had lost her notebook. The accused asserted that the Crown had contravened his s. 7 Charter right by failing in their disclosure obligations and had contravened his s. 11(b) right to a trial within a reasonable time.

The Alberta Provincial Court stayed the trial where the Crown had contravened the accused s. 11(b) right to a trial within a reasonable time. The court did not deal with the disclosure issue where the investigator had located her notebook.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused’s right to - Waiver of right - An accused was charged with impaired driving offences - The Crown breached the accused's s. 7 Charter rights by not providing full disclosure - The accused’s request for a stay or costs was denied - The main investigator subsequently took the stand with copies of her notebook entries and testified that she had lost her notebook - The accused asserted that the Crown had contravened his s. 7 right to disclosure and his s. 11(b) right to a trial within a reasonable time - The Alberta Provincial Court did not address s. 7 where the investigator's notebook had been located - With respect to s. 11(b), the total delay of two years and seven months was exceptional and warranted an inquiry - There had been several adjournments - Although the accused might have acquiesced in the selection of continuation dates, it could not be inferred that he had waived his s. 11(b) rights - The investigation and prosecutions were not complicated - Matters attributable to the inherent time requirements could have been completed before the original trial date - One adjournment (January 2006 to April 2006) was for the accused’s convenience - Although the accused contributed to the other adjournments by vigorously demanding Charter relief, the lack of timely disclosure was a factor attributable to the Crown - Prejudice could be inferred - Given the past delays and the likelihood of future delays, the court concluded that the accused’s s. 11(b) rights were infringed and stayed the trial.

Civil Rights - Topic 3264

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused’s right to - Denial of right - [See Civil Rights - Topic 3262 ].

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 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 - [See Civil Rights - Topic 3262 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3262 ].

Cases Noticed:

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81; 59 C.C.C.(3d) 449, refd to. [para. 5].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, refd to. [para. 5].

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; 19 C.R.(5th) 275; 128 C.C.C.(3d) 483, refd to. [para. 5].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165; 49 C.C.C.(3d) 289, refd to. [para. 12].

R. v. Smith (M.H.), [1989] 2 S.C.R. 1120; 102 N.R. 205; 63 Man.R.(2d) 81; 52 C.C.C.(3d) 97; 73 C.R.(3d) 1; 45 C.R.R. 314; 8 W.C.B.(2d) 801, refd to. [para. 16].

R. v. Paryniuk (R.) et al., [2003] O.T.C. 237 (Sup. Ct.), refd to. [para. 35].

R. v. Chan (A.H.), [2004] 7 W.W.R. 88; 342 A.R. 201 (Q.B.), refd to. [para. 35].

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; 103 C.C.C.(3d) 1; 44 C.R.(4th) 1, refd to. [para. 52].

R. v. Callocchia (T.) and D'Angelo (G.) (2000), 149 C.C.C.(3d) 215 (Que. C.A.), refd to. [para. 53].

R. v. Rahey (1987), 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183; 33 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 54].

Counsel:

B. Gunn and S. Prithipaul, for the applicant;

B. Kristensen, for the respondent.

This application was heard by Allen, P.C.J., of the Alberta Provincial Court, who delivered the following decision at Edmonton, Alberta, on December 19, 2005.