R. v. New, 2012 ABQB 596

Court of Queen ’ s Bench of Alberta Citation: R. v. New, 2012 ABQB 596 Date: 20120928 Docket: 090782053Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Marybeth New Accused _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Marybeth New seeks a stay of the charges against her on the basis that her right to be tried within a reasonable time, as guaranteed by Charter s. 11(b), has been violated. [ 2 ] Ms.

New is charged jointly with two other accused with two offences: 1) robbery and 2) assault with a weapon, of Rob Frederick Gagnon on June 27, 2009 at Edmonton. She is also charged alone with possession of less than 30 gms of marihuana on the same date. There is a fourth count on the indictment which charges one of Ms. New ’ s co-accused alone with impaired driving. [ 3 ] The trial of the 4 counts of the indictment was scheduled to commence before me on September 24, 2012. It had been

arranged that Ms. New’s application for a stay would be heard first, and then the trial would proceed in the rest of this week against all 3accused if the stay was denied and against the other 2 if the stay was ordered. However, at the commencement of the proceedings onSeptember 24 the Crown advised that the lead police investigator, who is an essential witness, had surgery last week and could notreasonably be available for trial this week.

The Crown did not know when he would be available to testify. [4] Counsel had also recognized the day before the trial was to begin that a video recording of a statement by the complainanthad not been disclosed. That oversight could be corrected almost immediately but would have resulted in the probable loss of one day oftrial time this week. [5] The Crown proposed to proceed with the civilian witnesses who had been subpoenaed to appear this week, and thenadjourn to some future date to be determined. Defence counsel opposed splitting the trial.

It appeared likely that the continuance, if thetrial commenced, would be at least into early 2013 in order to accommodate all the relevant calendars including mine. [6] I adjourned the trial. New trial dates will be arranged. Charter 11(

b) Application [7] Ms. New’s s. 11(

b) application, however, proceeded. [8] Ms. New’s position is that her s. 11(

b) right to trial within a reasonable time has been breached because 39 months havepassed since she was charged and she has still not been tried. She submits that she herself has not caused any of this delay. Neither hasshe waived any of it. Some of the delay is inherent, some has been caused by the Crown, some has been caused by the co-accused. Ms.New submits she has suffered prejudice as a result of the delay. She submits that the appropriate remedy for the breach of her Charterright should be a stay of the proceedings against her. [9] The Crown acknowledges that the delay since Ms. New was charged, which, so far, is 39 months, justifies an inquiry as towhether Ms. New’s s. 11(

b) right has been infringed. In R. v. Morin (SCC), [1992] 1 S.C.R. 771, the Supreme Court ofCanada set out the factors that should be considered in carrying out that inquiry: 1. the length of the delay; 2. waiver by the accused of any portion of the delay; 3. the reasons for the delay, including: (

a) inherent time requirements of the case (

b) actions of the accused (

c) actions of the Crown (

d) limits on institutional resources and (

e) other reasons for delay; and 4. prejudice to the accused. These factors must be carefully assessed in order to ascertain whether the delay is of a length and character that society’s interest inhaving persons accused of crimes brought to justice is outweighed by the interest of both the accused and society in having the merits ofthe case judicially assessed in a timely manner. Length of the Delay

[ 10 ] The length of the delay, so far, is 39 months. A trial has not yet been held and at this point has not been scheduled. The Court schedule, as it stands today, would permit a 3-day trial to be booked as early as December 2012. [ 11 ] However, that is not likely to happen in this case. Counsel for Ms. New ’ s co-accused are senior counsel whose calendars are notoriously busy. Three trials have been scheduled so far, two in Provincial Court and one in this Court. The delay between the dates these trials were set and the dates the trials were scheduled to start were 9 months, 8.75 months and 11 months.

It is reasonable to assume for present purposes that a delay of similar duration will occur in relation to the fourth trial dates. On that basis it is likely that the delay between charges and trial in this case will be in the area of 48 months, or 4 years. Waiver by Ms. New of any Portion of the Delay [ 12 ] The Crown acknowledges that Ms. New has not waived any portion of the delay. Reasons for the Delay [ 13 ] The materials provided establish the following history of these proceedings: 1. June 27, 2009 Ms. New and 2 others are arrested and charged. Ms.

New is denied judicial interim release by a Justice of the Peace. 2. July 14, 2009 Ms. New ’ s counsel requests disclosure from the Crown. 3. July 21, 2009 On the third Court appearance (the first 2 were with duty counsel), the matter is adjourned to give time for the Crown to provide disclosure and for a bail review hearing. 4. July 24, 2009 Ms. New is granted release on her bail review application. 5.

October 2, 2009 On the seventh Court appearance (the fourth, fifth and sixth resulted in short adjournments with pleas reserved), defence counsel says that disclosure is not sufficiently complete to permit the accused to enter pleas. The matter is adjourned to November 6. 6. October 16, 2009 Ms. New ’ s counsel receives a significant amount of disclosure. 7. November 13, 2009 An agent appearing for all three defence counsel advises the Court that after spending 25 minutes attempting to find dates for a 3-day trial, none had been found before August 2010.

He asks the Court to set the matter over so that counsel could see if the time requirement for the trial could be shortened. The matter is adjourned to December 3 for that purpose. This is the ninth docket appearance. Provincial Court Judge McNab says, “ . . . no further adjournments. Trial date has to be set on December 4. ” 8. December 4, 2009; December 21, 2009; January 11, 2010

The matter is in Provincial Docket Court to set trial dates. On each appearance, counsel for one of the co-accused, advises the Court that counsel have not yet found trial dates. He does not indicate whether they have tried and failed or whether they have not tried. There is no reference to Judge McNab ’ s direction that a “ trial date has to be set on December 4 ” . 9. February 16, 2010 Agents appear for all counsel. All accused enter pleas of not guilty. The trial is set for November 17, 18 and 19, 2010. 10.

November 17, 18, 19, 24; December 7, 21, 2010 On the first day of the scheduled trial, the complainant does not appear. A warrant for his arrest is issued. The matter is adjourned to the next day, November 18, to see if he can be found. The next day, however, the Court is advised that the prosecutor assigned to this matter has taken ill suddenly and will not be able to appear. Substitute counsel applies to adjourn the trial. The complainant is still not in attendance. It is not clear if any efforts have been made to secure his attendance since the day before.

A number of other witnesses anticipated by the Crown have not appeared but the substitute prosecutor is not sufficiently familiar with the matter to know whether the Crown would have been in a position to proceed had the assigned prosecutor not been ill. The Court put the matter over to the next day so further information could be obtained. The next day, the assigned prosecutor, not yet feeling well, attends Court. The complainant has still not been found but the prosecutor indicates that possibly he is not an essential witness. The issue appears to be whether to grant the Crown an adjournment.

The Court indicates that the issue is whether the accused ’ s s. 11(

b) rights have been violated more than whether or not the Crown has exercised appropriate diligence in securing the attendance of witnesses. The Crown asks for further time to determine whether or not she would have been able to proceed had she not been ill the day before, given the witnesses that have attended or are organized to attend. The Court is advised that as of that day, the Court would not be able to accommodate a 3-day trial until September or October 2011. On November 24, the prosecutor asks for and is granted a further adjournment because there has not been time for her to assess her position.

On December 7 the complainant appears in Court. The judge reviews the circumstances as they existed during the originally scheduled trial dates and finds that the Crown has satisfied the requirements of Darville and that as far as Darville considerations are concerned, an adjournment should be granted. However, he puts the matter over further so that it can be determined when an adjourned trial could be scheduled and to

schedule an Askov application if counsel are instructed to make one. On December 21 counsel advise that efforts to find trial dates earlier than September 2011 had been made. Counsel had found dates in April 2011 when all counsel were available, but the Court was already fully booked on those days. The earliest possible dates when both counsel and the Court are available are September 12 to 14, 2011. Those dates are booked. None of the accused brings an Askov application. There is no further mention of the possibility that the accused ’ s s. 11(

b) rights have been violated. 11. September 12, 2011 On the first day of the 3 days scheduled for trial, a co-accused re-elects trial by a judge of the Court of Queen ’ s Bench. All the accused, with Crown consent, waive a preliminary inquiry. The matter is adjourned to Queen ’ s Bench arraignments on October 28, 2011. 12. October 28, 2011 There is no transcript of the arraignment proceeding. The trial is set for September 24 to 27, 2012. Counsel on the present application advise that the 11-month delay resulted from difficulty finding earlier dates when counsel for the co- accused were available. Both the Court and counsel for Ms. New could have accommodated a much earlier trial date.

13. September 24, 2012 The Crown advises that the trial cannot be completed in the time scheduled because of the unavailability of an essential Crown police witness. One of the main reasons the Crown witness is essential is that he took statements from the two co-accused (not Ms. New). His testimony will be essential in voir dires relating to those statements. Though the Crown seeks to have the evidence of the civilian witnesses heard, defence counsel oppose starting the trial when it is clear it will not be finished in the scheduled time and when it is not clear when a continuance can be scheduled.

The trial is adjourned back to arraignment Court on September 28 for the setting of new trial dates. From Charge to First Scheduled Trial - 17 months [ 14 ] It took from June 27, 2009 to November 17, 2010, just short of 17 months, for this matter to proceed from charge to the first scheduled trial date. [ 15 ] It took the Crown 3 months to provide disclosure sufficient for the accused to enter pleas. That disclosure consisted of copies of statements and reports and a security video that police obtained within a few days of the incident which resulted in the charges.

In my view it was unreasonable for the organization and provision of that disclosure to occupy 3 months. In my view it ought to have been possible to provide the disclosure in one month. In my view 2 of these 3 months is “ Crown delay ” . [ 16 ] Once sufficient disclosure to permit the accused to enter pleas was provided, it took over 3 months for counsel to find dates when they and the Court were available. In November 2009, co-accused counsel thought a trial in August 2010 was too distant and thought an earlier date could be arranged if the required trial time could be shortened.

Whether or not this exercise was actually undertaken is not apparent. There was no further mention of it in the following 4 appearances required to set trial dates. Rather, the Court was advised that counsel needed to coordinate their calendars. This took the better part of 3 months. In my view it ought to have been possible for counsel to coordinate their calendars within one month at the outside. In my view 2 of these 3 months is “ co-accused ” delay. I am satisfied that none of this delay was caused or contributed to by Ms. New ’ s counsel. The delay in coordinating calendars did not result from Ms.

Boisvert ’ s unavailability. [ 17 ] So 4 of the 17 months it took to get from charge to the first trial dates are not, in my view, properly categorized as inherent delay. The remaining 13 months are inherent delay. From First Scheduled Trial to Second Scheduled Trial - 10 months [ 18 ] The delay from the date of the first scheduled but adjourned trial, November 17, 2010, to the second scheduled trial, September 12, 2011, about 10 months, resulted from the adjournment of the first scheduled trial. That was caused by a combination of the illness of the assigned prosecutor and the non-appearance of the complainant.

That is all “ Crown delay ” . Undoubtedly the delay was prolonged because of the busy calendars of counsel for the co-accused, but, in my view, that is a secondary cause. The primary cause of this delay is that the first trial needed to be adjourned for reasons attributable to the Crown. From Second Scheduled Trial to Third Scheduled Trial - 12 months [ 19 ] The delay from the second scheduled but adjourned trial, September 12, 2011, to the third scheduled trial, September 24, 2012, about 12 months, resulted from the re-election to trial in this Court by one of the co-accused. That is all “ co-accused delay ” .

From Third Scheduled Trial to Fourth Scheduled Trial - 9 months [ 20 ] As previously discussed, the third trial was adjourned because of the unavailability of an essential Crown witness. The duration of the delay is not yet known because the fourth trial dates have not been set. However, it appears reasonable to expect the delay will not be less than 9 months. All of that is “ Crown delay ” .

Summary of Causes of Delay

[ 21 ] The total delay, actual and anticipated, is 48 months. The inherent delay is about 13 months. The Crown delay is about 21 months. About 14 months should be considered “ co-accused delay ” . None of the delay was caused by Ms. New. Prejudice to the Accused [ 22 ] Some degree of prejudice to the accused resulting from the delay of her trial is to be inferred without evidence. It is accepted that for a person to have serious criminal accusations outstanding against them is emotionally stressful. The degree of that stress increases with the duration of the delay. Here, Ms.

New testified that the stress of these outstanding charges is aggravated by her worries as to what will happen to her infant daughter, of whom Ms. New is a single parent, if Ms. New is found guilty and is incarcerated. The delay has required her to live with that worry for a very long time. Ms. New also testified that she believes that she has been prejudiced by the existence of these outstanding charges in securing employment for which she completed training about 2 months ago.

She has also been unable to participate in family gatherings because of the conditions of her bail, in particular that she not consume alcohol and that she have no contact with one of the co-accused to whom she is related. The latter bail condition has also required that Ms. New ’ s daughter not have contact with the co-accused or the co-accused ’ s children, her cousins. I am satisfied that Ms. New has experienced and will continue to experience prejudice because of the delay in this case greater than the degree of prejudice that would be assumed to arise naturally out of a delay of 4 year ’ s duration.

Assessment Conclusion [ 23 ] Very little of the 4 year ’ s delay has resulted from anything for which blame can be ascribed to anyone. About 27% of the delay in this case would have happened in any event. It is inherent in the system. About 43% of the delay which has and will occur has resulted from causes for which the Crown is responsible though much of it was practically unavoidable. A further substantial portion of the delay, about 30%, has resulted from causes for which Ms.

New ’ s co-accused are responsible, even though, again, some of that delay was practically unavoidable. [ 24 ] The authorities indicate that delays attributable to the applicant ’ s co-accused are to be considered “ neutral ” . Clearly such delays are not to be attributed to the Crown. But where they occur in a case where there is substantial delay attributable to the Crown, they weigh more heavily in the determination of whether the total delay is unreasonable. [ 25 ] The question in a s. 11(

b) application is not whether the delay caused by the Crown is unreasonable. It is whether the total delay is unreasonable. Neutral delay of modest duration when added to inherent delay of reasonable duration, would probably not result in the total delay being unreasonable.

But where, as here, the total delay is great, the inherent delay is of substantial duration, and the “ Crown delay ” is a very large contributor to the total delay, the significance of the “ neutral ” delay to the assessment of the reasonableness of the total delay is significantly heightened. [ 26 ] In my assessment the total delay of 4 years, actual and anticipated, in Ms. New ’ s case is unreasonable. Her Charter s. 11(

b) right to trial within a reasonable time has been violated. The appropriate remedy is a direction that the charges against her be stayed. I so direct. Heard on the 24 th day of September 2012. Dated at the City of Edmonton, Alberta this 27 th day of September 2012.

Brian R. Burrows J.C.Q.B.A. Appearances: Tania Sarkar for the Crown Danielle Boisvert for the Accused, Marybeth New