R. v. Willingham (S.D.), (2004) 185 Man.R.(2d) 201 (PC)

• Judge: Devine, P.C.J.
• Court: Provincial Court of Manitoba (Canada)
• Case Date: February 20, 2004
• Jurisdiction: Manitoba
• Citations: (2004), 185 Man.R.(2d) 201 (PC)

R. v. Willingham (S.D.) (2004), 185 Man.R.(2d) 201 (PC)

MLB headnote and full text

Temp. Cite: [2004] Man.R.(2d) TBEd. AU.008

Her Majesty The Queen v. Shaun David Willingham

Indexed As: R. v. Willingham (S.D.)

Manitoba Provincial Court

Devine, P.C.J.

February 20, 2004.

Summary:

Charges were laid pursuant to ss. 130(a) and 342.1 of the Criminal Code, alleging that the accused had represented himself to be a named peace officer in telephone conversations with Winnipeg Police personnel and thereby fraudulently accessed the computer services of the Canadian Police Information Centre computer system. The accused sought a declaration that his ss. 7 and 11(b) Charter rights had been violated as a result of abuse of process and unreasonable delay and he sought a stay of proceedings pursuant to s. 24(1) of the Charter.

The Manitoba Provincial Court found that there had been a violation of the accused's right to be tried within a reasonable time under s. 11(b) of the Charter and granted a stay of proceedings.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The accused sought a declaration that his s. 7 Charter rights had been violated as a result of abuse of process - The defence complained of the actions of Crown counsel in speaking to his witness outside the courtroom immediately after that witness had been told by the trial judge not to discuss his evidence with anyone - The Manitoba Provincial Court held that it would have been preferable for Crown counsel to have asked the judge for clarification on whether the judge had in fact intended to prevent him speaking further to his witness or to impose any limitations on his doing so - The court concluded that although Crown counsel's conduct may inadvertently have been conduct that could have tended to "bring the administration of justice into disrepute" in the eyes of the witness, and/or the accused, it could not conclude that the conduct warranted a stay of proceedings - Crown counsel's conduct did not in actuality compromise the accused's ability to have a fair trial nor should it have created such a perception in a reasonably informed member of the public - See paragraphs 25 to 35.

Civil Rights - Topic 3264

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Denial of right - Charges were laid pursuant to ss. 130(a) and 342.1 of the Criminal Code, alleging that the accused had represented himself to be a named peace officer in telephone conversations with Winnipeg Police personnel and thereby fraudulently accessed the computer services of the Canadian Police Information Centre computer system - The accused alleged a violation of his s. 11(b) Charter right to be tried within a reasonable time and sought a stay of proceedings pursuant to s. 24(1) of the Charter - The Manitoba Provincial Court found that the 30 month delay was of sufficient length to trigger an examination of its reasonableness - Nine months of the delay was attributed to institutional resource limitations - Nine and a half months was attributed to the Crown, seven months being attributed to the Crown's failure to provide disclosure - The court concluded that there had been a breach of the accused's s. 11(b) Charter right to be tried within a reasonable time and that the lengthy delay caused actual prejudice to the accused's security interest in terms of his employability in addition to the usual prejudice from having charges pending - The court stayed the proceedings pursuant to s. 24(1) of the Charter - See paragraphs 44 to 66.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3264 ].

Criminal Law - Topic 5403

Evidence and witnesses - Witnesses - Ban on discussion of case during trial - [See Civil Rights - Topic 3157.4 ].

Cases Noticed:

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1; 115 C.C.C.(3d) 129; 7 C.R.(5th) 101; 44 C.R.R.(2d) 1; [1997] 6 W.W.R. 634, refd to. [para. 8].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122, refd to. [para. 20].

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; [1996] 2 W.W.R. 153; 130 D.L.R.(4th) 235; 103 C.C.C.(3d) 1; 44 C.R.(4th) 1; 29 W.C.B.(2d) 152; 33 C.R.R.(2d) 1; 1995 CarswellBC 1098, refd to. [para. 21].

R. v. Taillefer (B.) (2003), 313 N.R. 1 (S.C.C.), refd to. [para. 22].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81; 112 C.C.C.(3d) 289; 142 D.L.R.(4th) 595; 4 C.R.(5th) 139; 41 C.R.R.(2d) 189; 1997 CarswellOnt 85; 2 B.H.R.C. 23, refd to. [para. 22].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63, refd to. [para. 22].

R. v. Greganti (S.), [2000] O.T.C. 30 (Sup. Ct.), refd to. [para. 24].

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. 36].

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. 36].

R. v. Sheikhi, [2001] M.J. No. 523 (Prov. Ct.), refd to. [para. 39].

R. v. St. Germain, [2000] M.J. No. 621 (Prov. Ct.), refd to. [para. 39].

R. v. Padfield (J.) (1992), 60 O.A.C. 378 (C.A.), refd to. [para. 39].

R. v. Amato (S.) (2002), 168 Man.R.(2d) 1 (Prov. Ct.), refd to. [para. 40].

R. v. Higgins (K.) (2001), 155 Man.R.(2d) 55 (Q.B.), refd to. [para. 40].

R. v. Loewen (J.K.) (1998), 131 Man.R.(2d) 217; 187 W.A.C. 217 (C.A.), refd to. [para. 40].

R. v. Stewart (B.C.) (2000), 139 B.C.A.C. 213; 227 W.A.C. 213 (C.A.), refd to. [para. 40].

R. v. Kovacs-Tatar (G.), [2003] O.T.C. 642 (Sup. Ct.), refd to. [para. 40].

R. v. Sharma, [1992] 1 S.C.R. 814; 134 N.R. 368; 53 O.A.C. 288; 71 C.C.C.(3d) 184; 12 C.R.(4th) 45, refd to. [para. 40].

R. v. R.M. (2003), 178 O.A.C. 243 (C.A.), refd to. [para. 41].

R. v. Satkunananthan (S.) et al. (2001), 143 O.A.C. 1; 152 C.C.C.(3d) 321; 42 C.R.(5th) 220 (C.A.), refd to. [para. 42].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1; [1992] 1 W.W.R. 97; 8 C.R.(4th) 277; 83 Alta. L.R.(2d) 193, refd to. [para. 52].

Counsel:

Raegan Rankin, for the Crown;

Evan Roitenberg and Grant Stefanson, for the accused.

This application was heard before Devine, P.C.J., of the Manitoba Provincial Court, who delivered the following judgment on February 20, 2004.