R. v. Vandermeulen (M.), 2015 MBCA 84

• Judge: Monnin, Beard and Cameron, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: March 27, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 84;(2015), 323 Man.R.(2d) 83 (CA)

R. v. Vandermeulen (M.) (2015), 323 Man.R.(2d) 83 (CA);

      657 W.A.C. 83

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. SE.020

Her Majesty The Queen (respondent) v. Marlin Vandermeulen (accused/appellant)

(AR 14-30-08192; 2015 MBCA 84)

Indexed As: R. v. Vandermeulen (M.)

Manitoba Court of Appeal

Monnin, Beard and Cameron, JJ.A.

September 17, 2015.

Summary:

The accused was charged with two counts of assault causing bodily harm (counts 1 and 5), one count of uttering threats (count 2), two counts of assault (counts 4 and 9), choking to overcome resistance (count 7), sexual assault cause bodily harm (count 6), and theft under $5,000 (count 3), involving the same complainant. The accused moved to stay the charges on the grounds that his rights under s. 11(b) of the Charter to be tried within a reasonable time had been violated, citing a 36 month delay from charges to trial.

The Manitoba Court of Queen's Bench, in a decision reported at 292 Man.R.(2d) 159, dismissed the motion. The court convicted the accused on a number of the charges. The accused appealed, arguing  that the trial judge erred in finding that the delay was not unreasonable.

The Manitoba Court of Appeal found that the delay was unreasonable (i.e., there was a breach of s. 11(b) of the Charter). The court, therefore, allowed the accused's appeal and granted a stay of proceedings.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - The accused, who was charged with multiple criminal offences, claimed that his right to be tried within a reasonable time (Charter, s. 11(b)) had been violated - The trial judge dismissed the motion - The accused appealed, arguing that the trial judge erred, inter alia, in finding that a two and a half month period of the delay was waived because defence counsel would not agree to a preliminary inquiry date until the complainant's medical information was provided - The Manitoba Court of Appeal held that while the accused was asking for the disclosure of medical records, there was no evidence that he refused to set any dates pending receipt of that disclosure - The trial judge, therefore, was not correct in her assessment that he had waived that period of delay - See paragraphs 31 to 35.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - What constitutes "within a reasonable time" - A trial judge rejected an accused's argument that his right to be tried within a reasonable time (Charter, s. 11(b)) had been violated - The accused appealed, arguing that the trial judge erred in finding that a five month delay in the completion of the preliminary inquiry caused by the unavailability of the preliminary inquiry judge for personal reasons was an inherent delay - The Manitoba Court of Appeal held the five month delay was not sufficiently long such that the Crown should have applied to have the preliminary inquiry judge replaced - There was no evidence that a new preliminary inquiry could have been scheduled and completed at any earlier date - Thus, the appeal court found the trial judge was correct in finding that this delay was an inherent delay and not a Crown delay - See paragraphs 36 to 43.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - What constitutes "within a reasonable time" - A trial judge rejected an accused's argument that his right to be tried within a reasonable time (Charter, s. 11(b)) had been violated - The accused appealed, arguing that the trial judge erred in finding that a three month delay at the commencement of trial was attributable to the defence (i.e., the unavailability of defence counsel) - The Manitoba Court of Appeal held that there was no evidence that defence counsel acted unseasonably in refusing certain trial dates or contributed to the delay - Therefore, the trial judge erred in characterizing that delay as being attributable to the defence - Rather, that delay was attributable to institutional delay - See paragraphs 44 to 48.

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 was charged with a number of offences arising out of multiple incidents involving the same complainant - The time from preliminary inquiry to trial was 15 months, and from the date charges were laid to trial was 36 months - The accused claimed that his right to be tried within a reasonable time (Charter, s. 11(b)) had been violated - The Manitoba Court of Appeal, balancing the Morin factors, held that the delay in bringing this relatively simple matter to trial, being 37 months from the date of the charges to the conclusion of the trial, with no delay being attributed to the accused, was unreasonable - See paragraphs 60 to 75.

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 both Civil Rights - Topic 8599 ].

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Evidence of prejudice and causes of delay - A trial judge rejected an accused's argument that his right to be tried within a reasonable time (Charter, s. 11(b)) had been violated - The accused appealed, arguing that the trial judge erred in failing to give sufficient weight to the inherent prejudice to the accused arising from the 36 month delay between the charges and trial - The Manitoba Court of Appeal agreed - Where such delay was in the area of three years, the trial was not complex and none or little of that delay was attributable to the accused, the inherent prejudice was significant - That was moreso where one of the main issues was the credibility of the witnesses - Thus, the trial judge erred in her assessment of the degree of inherent prejudice to the accused's s. 11(b) right occasioned by the delay - See paragraphs 49 to 56.

Civil Rights - Topic 8599

Canadian Charter of Rights and Freedoms - Practice - Appeals - Standard of review - The accused was charged with a number of offences arising out of multiple incidents involving the same complainant - The time from preliminary inquiry to trial was 15 months, and from the date charges were laid to trial was 36 months - The accused claimed that his right to be tried within a reasonable time (Charter, s. 11(b)) had been violated - The trial judge dismissed the motion - The accused appealed, raising a number of grounds of appeal - The parties disagreed on the applicable standard of review - The Manitoba Court of Appeal reviewed the relevant jurisprudence and discussed the standard of review - See paragraphs 22 to 30.

Civil Rights - Topic 8599

Canadian Charter of Rights and Freedoms - Practice - Appeals - Standard of review - The accused appealed, arguing that the trial judge erred in finding that the delay was not unreasonable (Charter, s. 11(b)) - The Manitoba Court of Appeal noted that appellate courts differed on the standard of review applicable to a trial judge's ultimate conclusion on reasonableness - However, that difference did not come into play in this case because the trial judge made three material errors in her assessment of the Morin factors which affected her ultimate conclusion respecting reasonableness of the delay - Therefore, even if the standard of review was that of deference, deference was not owed in this case where there were palpable and overriding errors - Therefore, the appeal court had to undertake its own balancing of the Morin factors - See paragraphs 58 and 59.

Cases Noticed:

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 11].

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. 11].

R. v. K.G.W. (2014), 324 O.A.C. 231; 2014 ONCA 598, refd to. [para. 15].

R. v. George (D.P.) (2006), 208 Man.R.(2d) 300; 383 W.A.C. 300; 2006 MBCA 150, refd to. [para. 15].

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. 16].

R. v. Tovey, [2006] O.J. No. 3164 (C.J.), refd to. [para. 16].

R. v. Tran (L.) et al. (2012), 287 O.A.C. 94; 2012 ONCA 18, refd to. [para. 22].

R. v. Byron (M.C.) (2001), 156 Man.R.(2d) 154; 246 W.A.C. 154; 2001 MBCA 81, refd to. [para. 22].

R. v. Evans (E.D.) (2014), 306 Man.R.(2d) 9; 604 W.A.C. 9; 2014 MBCA 44, refd to. [para. 22].

R. v. R.E.W. (2011), 298 N.S.R.(2d) 154; 945 A.P.R. 154; 2011 NSCA 18, refd to. [para. 22].

R. v. Austin (D.) et al. (2009), 248 O.A.C. 189; 2009 ONCA 329, refd to. [para. 24].

R. v. Schertzer (J.) et al. (2009), 255 O.A.C. 45; 2009 ONCA 742, leave to appeal dismissed (2010), 406 N.R. 396; 271 O.A.C. 396 (S.C.C.), refd to. [para. 24].

R. v. Khan (K.) (2011), 277 O.A.C. 165; 2011 ONCA 173, leave to appeal dismissed (2011), 426 N.R. 400; 291 O.A.C. 397 (S.C.C.), refd to. [para. 24].

R. v. Horner (J.J.) (2012), 314 B.C.A.C. 272; 534 W.A.C. 272; 2012 BCCA 7, refd to. [para. 24].

R. v. Widdifield (R.F.) (2014), 354 B.C.A.C. 237; 605 W.A.C. 237; 2014 BCCA 170, refd to. [para. 24].

R. v. Sanghera (B.) et al. (2014), 357 B.C.A.C. 175; 611 W.A.C. 175; 2014 BCCA 249, refd to. [para. 24].

R. v. Nwanebu (U.C.) (2014), 362 B.C.A.C. 166; 622 W.A.C. 166; 2014 BCCA 387, refd to. [para. 24].

R. v. Jean-Jacques, 2012 QCCA 1628, refd to. [para. 24].

R. v. Camiran, 2013 QCCA 452, refd to. [para. 24].

R. v. C.D. (2014), 584 A.R. 222; 623 W.A.C. 222; 2014 ABCA 333, refd to. [para. 24].

R. v. Dias (G.F.) (2014), 588 A.R. 102; 626 W.A.C. 102; 2014 ABCA 402, refd to. [para. 24].

R. v. MacPherson (M.A.) (2015), 600 A.R. 35; 645 W.A.C. 35; 2015 ABCA 139, refd to. [para. 24].

R. v. Anderson (T.) (2013), 423 Sask.R. 61; 588 W.A.C. 61; 2013 SKCA 92, refd to. [para. 24].

R. v. Walker (N.) (2013), 423 Sask.R. 125; 588 W.A.C. 125; 2013 SKCA 95, refd to. [para. 24].

R. v. Koruz et al. (1992), 125 A.R. 161; 14 W.A.C. 161 (C.A.), refd to. [para. 24].

R. v. MacIntosh (E.F.) (2011), 310 N.S.R.(2d) 274; 983 A.P.R. 274; 2011 NSCA 111, affd. [2013] 2 S.C.R. 200; 443 N.R. 32; 329 N.S.R.(2d) 395; 1042 A.P.R. 395; 2013 SCC 23, refd to. [para. 24].

R. v. Chatwell (D.R.) (1998), 106 O.A.C. 226; 38 O.R.(3d) 32 (C.A.), refd to. [para. 24].

R. v. Qureshi (F.) et al. (2004), 192 O.A.C. 50 (C.A.), refd to. [para. 24].

R. v. N.N.M. (2006), 209 O.A.C. 331 (C.A.), refd to. [para. 24].

R. v. Milani (D.) (2014), 320 O.A.C. 384; 2014 ONCA 536, refd to. [para. 24].

R. v. Boisvert, 2014 QCCA 191, refd to. [para. 24].

R. v. Pidskalny (W.P.) (2013), 417 Sask.R. 124; 580 W.A.C. 124; 2013 SKCA 74, refd to. [para. 24].

R. v. Cranston (R.) et al. (2008), 244 O.A.C. 328; 2008 ONCA 751, leave to appeal dismissed (2009), 401 N.R. 395; 267 O.A.C. 399 (S.C.C.), refd to. [para. 26].

R. v. Nadarajah (K.) et al. (2009), 245 O.A.C. 243; 2009 ONCA 118, refd to. [para. 26].

R. v. Nguyen (T.) (2013), 303 O.A.C. 29; 2013 ONCA 169, refd to. [para. 26].

R. v. Konstantakos (G.) (2014), 315 O.A.C. 123; 2014 ONCA 21, refd to. [para. 26].

R. v. Deslauriers (G.J.) et al. (1992), 83 Man.R.(2d) 7; 36 W.A.C. 7 (C.A.), refd to. [para. 27].

R. v. Loewen (J.K.) (1998), 131 Man.R.(2d) 217; 187 W.A.C. 217 (C.A.), refd to. [para. 27].

R. v. Roulette (K.T.) (2015), 315 Man.R.(2d) 96; 630 W.A.C. 96; 2015 MBCA 9, refd to. [para. 27].

R. v. Wilson (S.R.G.) (2013), 427 Sask.R. 63; 591 W.A.C. 63; 2013 SKCA 128, refd to. [para. 27].

R. v. Jordan (B.R.) et al. (2014), 357 B.C.A.C. 137; 611 W.A.C. 137; 2014 BCCA 241, refd to. [para. 30].

R. v. Ralph (A.) (2014), 313 O.A.C. 384; 2014 ONCA 3, refd to. [para. 53].

R. v. Steele (X.) (2012), 291 O.A.C. 336; 2012 ONCA 383, refd to. [para. 53].

R. v. B.H., [2009] O.A.C. Uned. 485; 2009 ONCA 731, refd to. [para. 53].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183, refd to. [para. 76].

R. v. Kporwodu (A.) et al. (2005), 196 O.A.C. 272; 75 O.R.(3d) 190 (C.A.), refd to. [para. 76].

R. v. Thomson (L.) (2009), 255 O.A.C. 268; 2009 ONCA 771, refd to. [para. 76].

Counsel:

S.B. Simmonds and K.J. Advent, for the appellant;

R.N. Malaviya, R.D. Lagimodière and M.A. Bodner, for the respondent.

This appeal was heard on March 27, 2015, before Monnin, Beard and Cameron, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court by Beard, J.A., on September 17, 2015.