R. v. Lavallee, 2012 ABQB 132

Court of Queen ’ s Bench of Alberta Citation: R. v. Lavallee, 2012 ABQB 132 Date: 20120228 Docket: 091015479Q1 Registry: St. Paul Between: Her Majesty the Queen Respondent - and - Sheila Lavallee Applicant Corrected judgment: A corrigendum was issued on February 29, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.

Paul Belzil _______________________________________________________ [ 1 ] The Accused has been charged with one count of fraud and one count of theft arising out of conduct which allegedly occurred between June 1, 2008 and May 30, 2009. I have been assigned to hear the trial of these charges which is scheduled to proceed between June 27-30, 2012 in St. Paul. [ 2 ] The Accused has filed an application alleging that her rights under sections 7, 11(

b) and 11(

d) of the Charter have been infringed and seeks a stay of proceedings pursuant to s. 24 (1). In voir dire , the Accused testified as to the profound impact these charges have had on her. [ 3 ] The Accused was employed as a bookkeeper by Tripac Restaurants Ltd. between June 1, 2008 and May 2009 and was charged in August 2009. On August 21, 2009 defence counsel made an initial request for disclosure followed by two additional more detailed requests for disclosure on October 9, 2009 and November 21, 2009. Specifically, disclosure of financial records, balance sheets and employee time sheets together with banking information has been requested.

[ 4 ] Her first court appearance was scheduled for St. Paul on August 20, 2009. [ 5 ] Pages 2-5 of the Applicant ’ s brief contain a

summary of the history of proceedings to date: (

i) The Applicant was charged on 18 August 2009, and released pursuant to a Promise to Appear. (ii) Her first court appearance was 20 August 2009 in St. Paul Provincial Court. The matter was adjourned to 10 September 2009 for the Applicant to retain counsel. (iii) On 10 September 2009, Lawren Wowk was endorsed as counsel. The matter was adjourned to 17 September 2009 for election. (iv) On 17 September 2009, the mutter was adjourned to the 08 October 2009 to await receipt of Crown Disclosure, which was requested 21 August 2009. A copy of the letter sent to the Crown is included in our Book Of Authorities. (

v) On 08 October 2009, the matter was adjourned to 05 November 2009 due to incomplete Crown disclosure. (vi) On 05 November 2009, the matter was adjourned to 03 December 2009 to await receipt of further Crown disclosure. (vii) On 03 December 2009, the matter was adjourned to 07 January 2010 to await receipt of further Crown disclosure. (viii) On 07 January 2010, the matter was adjourned to 11 February 2010 to await receipt of further Crown disclosure. (ix) On 11 February 2010, the matter was adjourned to 25 March 2010 for further disclosure. (

x) On 25 March 2010, the matter was further adjourned to 29 April 2010 to await receipt of outstanding disclosure. The Court directed that the case was to be resolved or set down for preliminary inquiry. (xi) On the 29 April 2010, no additional disclosure was provided. However, a Queen ’ s Bench election was entered and a preliminary inquiry set for 25 August 2010. (xii) On 25 August 2010, the preliminary inquiry was waived and the Applicant was to be arraigned in St. Paul Court of Queen ’ s Bench on 18 October 2010.

The outstanding disclosure had still not been provided. (xiii) On 18 October 2010, the matter was again adjourned to 13 December 2010, due to outstanding Crown disclosure. (xiv) On 13 December 2010, the matter was adjourned to 10 January 2011, due to outstanding Crown disclosure. (xv) On 10 January 2011, the matter was again adjourned to 07 February 2011, due to outstanding Crown disclosure.

(xvi) On 07 February 2011, the matter was again adjourned to 14 March 2011, due to outstanding Crown disclosure. (xvii) On 14 March 2011, the matter was adjourned to 26 April 2011, due to outstanding Crown disclosure. (xviii) On 26 April 2011, the matter was adjourned to 24 May 2011, due to outstanding Crown disclosure. (xix) On 24 May 2011, the matter was adjourned to 13 June 2011, due to outstanding Crown disclosure. (xx) On 13 June 2011 the matter was adjourned to 25 July 2011, due to outstanding Crown disclosure.

A Re-election to trial by Judge alone was entered with Crown consent. (xxi) On 25 July 2011, the matter was adjourned to 6 September 2011, due to outstanding Crown disclosure. (xxii) On 6 September 2011, the matter was adjourned to 3 October 2011, due to outstanding Crown disclosure. (xxiii) On 3 October 2011, the matter was adjourned to 14 November 2011, due to outstanding Crown disclosure. (xxiv) On 14 November 2011, the matter was set for trial from 27-29 June 2012 inclusive, in spite of lack of Crown disclosure.

The Crown now indicates, at long last, that they cannot produce the requested records. [ 6 ] It is uncontroverted that the requested disclosure has not been supplied as the Crown has not been able to obtain the information from Tripac. [ 7 ] The Accused argues that her right, guaranteed by s. 11(

b) of the Charter to be tried within a reasonable time has been infringed. [ 8 ] This is not a situation wherein Crown counsel or the RCMP are willfully interfering with production of documents, which clearly must be produced. Crown counsel, Mr. Brandt, emailed the lead investigator, Constable Dunbar, several times emphasizing that it was imperative that disclosure be completed. [ 9 ] Dunbar was dealing primarily with Doug Millar, one of the owners of Tripac.

Dunbar forwarded an email to Brandt on May 23, 2011 advising that he had been in contact with Millar who represented that he had completed collecting 85% of the requested documents and that he would be delivering approximately 500 pages of documents to Dunbar on May 24 th . [ 10 ] With his usual candour, Mr. Brandt advised me during argument, that Millar did not deliver the documents as undertaken and indeed has never produced any.

Given the lapse of time, it is readily apparent that, for whatever reason, Millar is refusing to cooperate. [ 11 ] The Crown argues that only 13 months of delay can be attributed to it and that a stay of proceedings is not warranted on these facts. In his brief, Crown counsel notes that the Accused provided a lengthy statement to the RCMP in August 2009 and argues that this will assist her in recalling events. [ 12 ] Notwithstanding that Crown counsel and the RCMP are acting in good faith in attempting to comply with disclosure

requirements, legally required disclosure has not been made resulting in an infringement of the rights of the Accused. I do not accept thatthe Accused’s ability to read her own statement obviates the Charter infringement. [13] In R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, the majority judgment of the Supreme Court of Canadaidentified the following factors as being pertinent in determining whether a delay in proceeding to trial has been unreasonable: From the foregoing review it is possible I think to give a brief

summary of all the factors which should be taken into account inconsidering whether the length of the delay of a trial has been unreasonable. (

i) The Length of the Delay. The longer the delay, the more difficult it should be for a court to excuse it. Very lengthy delays may be such that they cannot bejustified for any reason. (ii) Explanation for the Delay. (

a) Delays Attributable to the Crown. Delays attributable to the action of the Crown or officers of the Crown will weigh in favour of the accused. The cases of Rahey andSmith provide examples of such delays. Complex cases which require longer time for preparation, a greater expenditure of resources by Crown officers, and the longer use ofinstitutional facilities will justify delays longer than those acceptable in simple cases. (

b) Systemic or Institutional Delays. Delays occasioned by inadequate resources must weigh against the Crown. Institutional delays should be considered in light of thecomparative test referred to earlier. The burden of justifying inadequate resources resulting in systemic delays will always fall upon theCrown. There may be a transitional period to allow for a temporary period of lenient treatment of systemic delay. (

c) Delays Attributable to the Accused. Certain actions of the accused will justify delays. For example, a request for adjournment or delays to retain different counsel. There may as well be instances where it can be demonstrated by the Crown that the actions of the accused were undertaken for thepurposes of delaying the trial. (iii) Waiver. If the accused waives his rights by consenting to or concurring in a delay, this must be taken into account. However, for a waiver to bevalid it must be informed, unequivocal and freely given.

The burden of showing that a waiver should be inferred falls upon the Crown.An example of a waiver or concurrence that could be inferred is the consent by counsel for the accused to a fixed date for trial.

(iv) Prejudice to the Accused. There is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resultingfrom the passage of time. Where the Crown can demonstrate that there was no prejudice to the accused flowing from a delay, then suchproof may serve to excuse the delay. It is also open to the accused to call evidence to demonstrate actual prejudice to strengthen hisposition that he has been prejudiced as a result of the delay.

I believe that the factors that I have set out in large measure are substantially the same as those enunciated by L'Heureux-Dubé J. inConway and Sopinka J. in Smith. The aim of this test is to provide a method based upon the underlying purposes of s. 11(

b) which willpermit courts to balance the applicable substantive factors in a consistent manner. It bears repeating that the balance between the explicit,individual protection and the implicit, societal aspect of s. 11(

b) is addressed by placing the onus on the Crown to demonstrate that anyaction of the accused deliberately caused the delay or constituted waiver, or that the delay caused no prejudice to the accused. [14] In R. v.

Morin, (SCC), [1992] 1 S.C.R. 771 the Supreme Court of Canada revisited this issue and at p. 787rejected the notion that this issue is to be resolved in a mechanical or mathematical fashion. [15] In Morin the Supreme Court quoted the majority judgment in Askov where Cory J. at p. 1240 made the followingobservation: A period of delay in a range of some six to eight months between committal and trial might be determined to be the outside limit of whatis reasonable. [16] In R. v.

Godin, 2009 SCC 26 at para. 39 the court held that a delay of 30 months was striking and upheld the trial judge’sconclusion that a stay of proceedings was warranted in the circumstances. [17] In this case, the initial request for disclosure was made on August 29, 2009. Notwithstanding the absence of disclosure, trialdates were arranged on November 14, 2011 which results in a 27 month delay as a result of the disclosure issue.

There is no evidencethat the Accused has ever expressly or impliedly waived her right to raise the failure to disclose these documents or delays occasionedwaiting for disclosure. [18] I accept that the Crown is not responsible for institutional delay between November 14, 2011 and June 2012 which is notunreasonable in the St. Paul area.

On these facts, the trial would proceed 33 months after the Accused was charged, none of the delaybeing attributable to the Accused. [19] Analogous to the situation in Godin, the 27 month delay occasioned by the disclosure is striking and has created a significantprejudice for the Accused through no fault of hers. In the result, the Accused, who is presumptively innocent, has met the burden ofproving on the balance of probabilities, that her Charter rights have been infringed. [20] Under these circumstances a stay of proceedings is the only effective remedy for the Charter infringement and it is soordered.

Heard on the 22nd day of February, 2012. Dated at the City of Edmonton, Alberta this 28th day of February, 2012.

R. Paul Belzil J.C.Q.B.A. Appearances: Randall W. Brandt Crown Prosecutor ’ s Office for the Crown Leighton B. U. Grey, Q.C. Grey Munday for the Applicant _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice R. Paul Belzil _______________________________________________________ Please note that the citation number has been corrected to read: 2012 ABQB 132