R. v. Randell (J.), (2015) 374 Nfld. & P.E.I.R. 207 (NLTD(G))

• Judge: Murphy, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: November 26, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 374 Nfld. & P.E.I.R. 207 (NLTD(G))

R. v. Randell (J.) (2015), 374 Nfld. & P.E.I.R. 207 (NLTD(G));

    1164 A.P.R. 207

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. DE.036

Her Majesty the Queen v. Jeremy Randell

(201008T0063; 2015 NLTD(G) 172)

Indexed As: R. v. Randell (J.)

Newfoundland and Labrador Supreme Court

Trial Division (General)

Murphy, J.

November 26, 2015.

Summary:

On October 9, 2009, the accused was charged with four counts of assault with a weapon, one count of causing pain to a dog, two counts of threatening to cause death, one count of threatening to cause harm and one count of unlawfully endangering life. His trial was ultimately scheduled to end on September 17, 2015. The accused applied for a stay of proceedings, asserting that his s. 11(b) Charter rights to a trial within a reasonable time had been violated.

The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the application and stayed the proceedings.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - On October 9, 2009, the accused was charged with nine counts, including assaults with a weapon, threats and endangering life - The Crown proceeded by indictment on three counts and by summary conviction on the remaining counts - On January 29, 2010, the Provincial Court judge raised a concern about there being two trials in different courts on charges which, with two exceptions, arose out of the same series of events, and all of which involved the same complainant - The preliminary inquiry on the indictable offences commenced on March 25, 2010, and a trial was scheduled for October 18-20, 2010, but was ultimately postponed - The summary convictions charges were scheduled for trial in Provincial Court on May 31, 2010, but were postponed so that the trial of the indictable offences would occur first - On February 23, 2011, the Crown, with the accused's consent, re-elected on all of the charges in the Provincial Court to proceed by indictment - A preliminary inquiry for those charges was scheduled for September 23, 2011, but was postponed - On February 28, 2012, the Crown stayed the Provincial Court proceedings - The proceedings were recommenced in January 2013 - The preliminary inquiry, after further postponements, ultimately concluded on June 20, 2015 - The trial for all the charges was scheduled to commence on September 14, 2015 - The accused asserted that his s. 11(b) Charter right to a trial within a reasonable time had been violated - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that the delay was sufficient to raise the issue of reasonableness and warrant further inquiry - The Crown re-elected to solve a potential problem which was created by its initial decision on election - While some delay from October 9, 2009 to February 23, 2011, was due to the inherent time requirements and a change of counsel by the accused, the court attributed one year of the delay to the Crown - The accused explicitly waived his s. 11(b) rights on April 11, 2011, when he consented to the re-election - The waiver ended on September 23, 2011, when the preliminary inquiry was postponed - However, it was not reasonable to deduct the waiver period in the circumstances - The court attributed additional delay to the Crown, including the 11 month stay period, making it responsible for a total delay of 31.5 months - The court attributed eight months and 13 days to institutional and administrative reasons - The total delay in excess of 39 months was unreasonable - The accused suffered prejudice - Until February 28, 2012, his liberty was restricted by bail conditions - It was also reasonable to infer prejudice to trial fairness and from the stress and strain resulting from the prolonged exposure to criminal charges - The court stayed the proceedings.

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 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - On October 9, 2009, the accused was charged with nine counts, including assaults with a weapon, threats and endangering life - The trial was scheduled to commence on September 14, 2015 - The accused asserted that his s. 11(b) Charter right to a trial within a reasonable time had been violated - The Newfoundland and Labrador Supreme Court, Trial Division (General), in determining the causes of the delay, noted that the preliminary inquiry did not proceed on November 26, 2013, because the lawyer representing the accused had left private practice - The preliminary inquiry was rescheduled to February 21, 2014, and the matter was scheduled to be called on December 11, 2013, to determine the status of legal counsel for the accused - On December 11, 2013, counsel for the accused was uncertain and the Crown applied for and was granted a postponement of the preliminary inquiry on the basis that the complainant, for medical reasons, was unavailable on February 21, 2014 - The preliminary inquiry was rescheduled to June 6, 2014, and the matter was scheduled to be called on April 25, 2014 for a status update on counsel for the accused - On April 25, 2014, the accused had counsel and the June 6, 2014 date was confirmed - The court characterized the delay between January 2013 and June 6, 2014, as being partly attributable to the inherent time requirements of the case and party attributable to the actions of the accused and the Crown - The preliminary inquiry did not proceed on June 6, 2014, as the accused had again switched legal counsel and his new counsel was unable to attend - It was rescheduled to August 8, 2014 - This delay was attributable to the accused - On August 8, 2014, the preliminary inquiry commenced but could not be conducted as the court was over booked - It was postponed for continuation on November 20, 2014 - This delay was institutional - The preliminary inquiry did not proceed on November 20, 2014, because the Provincial Court judge who was seized with the matter was on circuit - It was postponed to March 7, 2015 - This delay was attributable to an administrative error - The March 7, 2015 date had to be rescheduled because the complainant was unavailable - The Crown had to bear responsibility for this delay - The delay from the conclusion of the preliminary inquiry on June 20, 2015, to the scheduled commencement of the trial was part of the inherent time requirements of the case - See paragraphs 117 to 119.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - 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, refd to. [para. 3].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 6].

R. v. Reid (B.W.) (1999), 171 Nfld. & P.E.I.R. 143; 525 A.P.R. 143; 41 W.C.B.(2d) 362 (Nfld. C.A.), refd to. [para. 10].

R. v. Taylor (B.) et al. (2010), 297 Nfld. & P.E.I.R. 1; 918 A.P.R. 1; 2010 NLCA 26, refd to. [para. 11].

R. v. Cheng (Y.C.), [2010] Nfld. & P.E.I.R. Uned. 16; 2010 NLCA 27, refd to. [para. 11].

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. 12].

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. 14].

R. v. Smythe, [1971] S.C.R. 680, refd to. [para. 108].

R. v. Anderson (F.), [2014] 2 S.C.R. 167; 458 N.R. 1; 350 Nfld. & P.E.I.R. 289; 1088 A.P.R. 289; 2014 SCC 41, refd to. [para. 108].

R. v. Lanteigne (S.) (2010), 366 N.B.R.(2d) 1; 942 A.P.R. 1; 2010 NBCA 91, refd to. [para. 115].

R. v. Condello (D.) (1997), 38 O.T.C. 362; 36 W.C.B.(2d) 48 (Gen. Div.), refd to. [para. 115].

R. v. Pidskalny (W.P.), [2013] 8 W.W.R. 1; 417 Sask.R. 124; 580 W.A.C. 124; 2013 SKCA 74, refd to. [para. 142].

R. v. Kadhem, 2015 NLTD(G) 155, refd to. [para. 143].

Counsel:

Jennifer Mercer, for the Crown;

Rosellen Sullivan, for the accused.

This application was heard at Happy Valley-Goose Bay, N.L., on September 14 and 15, 2015, by Murphy, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following judgment on November 26, 2015.