R. v. R, 2013 NBPC 5

R. v. Réjean Pelletier 2013 NBPC 5 PROVINCE OF NEW BRUNSWICK File No.: 03426611 PROVINCIAL COURT HER MAJESTY THE QUEEN - v - RÉJEAN PELLETIER Decision on a motion by the Honourable Ronald LeBlanc, Judge of the Provincial Court at Bathurst, New Brunswick, on February 19, 2013. Counsel: René Dumaresq, for the Crown Martin Siscoe, for the defendant [TRANSLATION] 1. Mr. Réjean Pelletier is charged with impaired driving, and with operating a motor vehicle with a blood alcohol level exceeding 80 mg of alcohol in 100 ml of blood, contrary to s. 253 (

a) and 253(

b) of the Criminal Code , as they read in 2002. Mr. Pelletier seeks a stay of proceedings pursuant to s. 24(1) of the Charter . He argues that the police violated his right to be tried within a reasonable time by failing to execute the arrest warrant issued against him in a timely manner. The prosecution argues the opposite and puts the blame for the delay in the proceedings being commenced within a reasonable time entirely on the accused given that he was summoned to appear in Court and he failed to do so. THE FACTS 2. The facts which gave rise to this case are as follows.

3. The incident related to the charge against the accused occurred on June 28, 2002. Mr. Pelletier was served with an appearance notice for August 26, 2002. He did not appear in court on that date. The court does not know why. An extension was granted until October 11, 2002. On that date, Mr. Marcel Guérin, a Quebec lawyer, appeared on behalf of the defendant and entered a not guilty plea on both counts. The date of the trial was set for March 17, 2003. On the back of the information the judge wrote: [ TRANSLATION ] “the defence waives the time limit”. On March 17, 2003, the date set for the trial to begin, Mr.

Guérin was present but the accused was absent, therefore the judge made an order for an arrest warrant to be issued. 4. The warrant was outstanding until the defendant was arrested on August 25, 2011, in Bathurst, N.B., while he was driving on the highway. The debate mainly concerns the period from March 17, 2003, to August 25, 2011, approximately 8 years and 5 months. 5. On August 29, 2011, Mr. Martin Siscoe, the defendant’s current counsel, appeared on his behalf. The warrant was set aside and the matter proceeded to court in the usual manner. Mr.

Siscoe asked that the matter be adjourned to October 17, 2011, in order for him to review the file. On that date the trial was set for March 13, 2012. On March 6, 2012, Mr. Siscoe informed the Court that he had just received disclosure of the evidence and requested that the trial be postponed. The prosecution consented. The trial was set for August 16, 2012. On August 10, 2012, Mr. Siscoe informed the Court that he was going to present a motion for a stay of proceedings on grounds of unreasonable delay.

February 5, 2013, was the date set for hearing the motion and March 5, 2013, the date scheduled for trial in the event that the motion was denied. Mr. Siscoe waived the delay between August 10, 2012, and February 5, 2013. 6. Obviously, the events that occurred between June 28, 2002 (the date of the alleged offence), and August 25, 2011 (the date of the arrest), are very relevant and must be carefully considered by the Court. The following facts emerge from a voir-dire during which the accused and Sergeant Alain Tremblay, a member of the RCMP and the officer in charge of operations for the region, testified. 7.

Mr. Pelletier testified that he had retained Marcel Guérin as counsel to represent him. He paid him an amount of money for his services. Mr. Pelletier, a bricklayer by trade, asked his lawyer, Mr. Guérin, if he could go work in Western Canada. Mr. Guérin told him that he did not need to be present in court; that he would take care of everything; that he could go work out west if he wanted to and that he would be in Court to represent him. On this advice, Mr. Pelletier moved to Calgary, Alberta, to work. 8. Mr. Pelletier had no other contact with his lawyer after that.

He never spoke to him since and was therefore not aware of the date of his trial. Moreover, his lawyer never told him that he needed to be present at his trial in New Brunswick. 9. Once the warrant was issued, the RCMP tried to get Mr. Pelletier to appear in court. On April 6, 2003, three weeks after the warrant had been issued, RCMP Constable Steve Zamor went to Mr. Pelletier’s residence. He was informed by a resident of the locality that Mr. Pelletier had left New Brunswick to go work in Western Canada. On June 6, 2003, Constable Zamor spoke to Mr. Pelletier on the phone.

He informed him that there was a warrant out for his arrest. This was the first time that the defendant was made aware that a warrant had been issued for his arrest in New Brunswick. Mr. Pelletier told Constable Zamor that according to his lawyer he did not need to be there, and that his lawyer had told him he would take care of everything. He gave his lawyer’s phone number. 10. That same day, Constable Zamor phoned Mr. Guérin; a somewhat unusual procedure according to Sergeant Tremblay. Mr.

Guérin told him that he would be coming to Bathurst, New Brunswick soon, on August 19, and that he would be getting in touch with the Crown Prosecutor’s office. No evidence of such a meeting was presented. 11. Later, on two occasions, on August 21, 2003, and on October 11, 2003, Constable Zamor spoke with the accused on the phone. Mr. Pelletier was still living out west. Constable Zamor informed him that he must immediately notify the RCMP when he returned to the area. Mr. Pelletier told him that he did not know when he would come back because he could not afford to return to New Brunswick. 12. Mr.

Pelletier was living and working in Western Canada. In January 2003, he moved to Calgary, Alberta, to work. Between January 2004 and January 2006, he worked in the Ottawa, Ontario, area. He went back to Calgary in January 2006 and stayed there until July 2009. 13. In July 2009, he returned to live in New Brunswick, in the Nicolas Denys area. He bought a house, notified the Registrar of Motor Vehicles of his new address and registered his vehicle in this province. Nicolas Denys is located a few kilometers from Bathurst. He still resides at this address. In July 2009, he worked in the area.

This job lasted 2 months. Later, he worked in Labrador for 9 months. During this 9-month period, he would come home for a week every 5 or 6 weeks.

14. After that he worked here and there in the Maritimes. In January 2013, he enrolled in academic upgrading classes at thecommunity college. He only has a Grade 7 education and would like to get a diploma in order to find a better job in the area. 15. He has now been a permanent resident of the Bathurst area for three and a half years. At the time of his arrest on August 25, 2011,he had been living here for a little over two years. He testified that he was not hiding.

As far as the charges against him and the warrantare concerned, he testified that he sincerely believed that it was all over since he had heard nothing since 2003. However, he did notinquire with the RCMP, and made no effort to appear before the court. He did not think he had to because, according to him, everythingwas over and he thought that the police were no longer concerned with this matter, given that the incident had occurred such a long timeago. 16. Sergeant Tremblay testified that there is no policy as such regarding the return to New Brunswick of individuals for whom awarrant is outstanding here.

According to him, there are outstanding arrest warrants issued in New Brunswick against hundreds ofindividuals working in Western Canada. Whether these individuals are returned here depends on the nature of the charge and on limitedfinancial resources. Distance can also be a factor: there is a better chance of going after an individual where the distance is shorter. Inreality, it is a question of priorities. For a simple traffic violation, as in the case of Mr. Pelletier a breathalyser charge, the commonpractice is simply to post the warrant on the CPIC system. 17. The RCMP knew where Mr.

Pelletier was living in Western Canada when they contacted him in 2003, but they decided not to goand get him. The seriousness of the offence played a role in this decision. Finally, since the last telephone contact with Mr. Pelletier inOctober 2003, the RCMP took no other step to execute the warrant other than to post it on the CPIC computer system. THE ISSUE TO BE DECIDED 18. Who is to blame for the delay from March 17, 2003, to August 25, 2011? 19. Defence counsel contends that the prosecution is wholly responsible for the period of time elapsed between the date the warrantwas issued and the date of Mr.

Pelletier’s arrest. He argues that the defendant was under no obligation to appear in court to face thecharges. Moreover, as Mr. Pelletier had retained the services of a lawyer to represent him, he should have been able to rely on the adviceof his lawyer who told him that he did not have to appear in court. He is therefore not to blame in this matter. He relies on R. v. Chan,2008 BCPC 95 , 170 C.R.R. (2d) 347, a decision of Watchuck, P.C.J. 20. The Crown argues that the responsibility for the delay rests entirely on the accused.

He did not appear in court despite beingaware that an arrest warrant had been issued against him. Notwithstanding that there is no legal duty on the accused to turn himself in tothe police, an exception applies in two instances: when an individual is a fugitive and when an individual has been summoned to appearand has failed to do so on the assigned date. The Crown relies on R. v. Rickett, [2012] A.J. No. 247, 2012 ABPC 52, a decision ofJohnson, P.C.J. ANALYSIS

Section 11(

b) of the Canadian Charter of Rights and Freedoms provides that a person has the right to be tried within a reasonabletime. The main object of s. 11(

b) is the protection of individual rights, that is, the right to security of the person, the right to liberty andthe right to a fair trial. What constitutes reasonable time is not determined by the application of a mathematical or administrativeformula. Rather, it is a judicial determination balancing these interests against the reasons that have led to the delay, taking into accountthe interest of society as a whole to have an individual tried according to the law: R. v. Morin (1992) (SCC), 1 S.C.R.771; 12 C.R. (4th) 1; 71 C.C.C. (3d) 1. 22. The New Brunswick Court of Appeal has summarized the principles to be applied to determine whether or not s. 11(

b) of theCharter has been breached. At paragraph 9 of R. v. Lanteigne 2010 NBCA 91 , [2010] N.B.J. No. 423; 366 N.B.R. (2d) 1; 265C.C.C. (3d) 123, the Court wrote as follows: 9 The relevant jurisprudence regarding the right to be tried within a reasonable time is set out in R. v. Askov, (SCC),[1990] 2 S.C.R. 1199, [1990] S.C.J. No. 106 (QL); R. v. Morin, (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25 (QL)at paras. 31-64 and R. v. Godin, 2009 SCC 26 , 2009 SCC 26, [2009] 2 S.C.R. 3; and reiterated by this court in Giberson v. R.,

2010 NBCA 19 , 2010 NBCA 19, 356 N.B.R. (2d) 196 at para. 4; Black v. R., 2010 NBCA 65 , 2010 NBCA 65,[2010] N.B.J. No. 287 (QL) at para. 13; and Black v. R., 2010 NBCA 36 , 2010 NBCA 36, [2010] N.B.J. No. 171 (QL) [Black(I)]. It is now trite law that the following factors are to be considered by a trial judge in assessing whether a delay violates an accused’ss. 11(

b) Charter right: 1. The length of the delay. 2. Waiver of time periods. 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, (

e) other reasons; and 4. Prejudice to the accused. 23. In Chan, supra, the judge was dealing with an accused who had moved to China in July 1993 and stayed there for two years. InJuly 1994, a warrant was issued for his arrest. Between 1996 and 2001, he returned to Canada for a month every year. In December2001, he moved back to Vancouver, B.C., permanently. On March 8, 2007, he turned himself in to the Vancouver police. The trial wasset to start in September 2008, 14 years and 3 months after the date the information was sworn. The judge ruled that Mr.

Chan was not afugitive and that he was not trying to flee from justice. At paragraphs 41 to 43, the judge gave an overview of the caselaw that I willreproduce here: 41 “Section 511 of the Criminal Code provides that warrants will be executed forthwith, thus periods of inaction or inattention onthe part of the Crown or its agents can be counted toward a finding of unreasonable delay. The case law cited in support is: R. v. Satari,[1991] B.C.J. No. 3961 ["Satari"] (17 1/2 month delay due to failure to execute warrant found to be unreasonable) and R. v. Duncan,[2007] B.C.J.

No. 971, 2007 BCPC 126 (7 1/2 year delay). 42 Police are required to make more than perfunctory efforts to locate the accused: R. v. Gagnon, [1994] B.C.J. No. 818 at para. 25.Reasonable efforts must be made to locate the accused to execute the warrant, such as attending the accused’s residence or attempting tolocate the accused by telephone: Satari at p. 4; R. v. Yellowhorse, [1990] A.J. No. 964 ["Yellowhorse"] at p. 5. It is seldom, if ever,sufficient to simply post the warrant on CPIC: see R. v. Wright, [2003] A.J. No. 1540, 2003 ABQB 1003 ["Wright"] at para. 22;Yellowhorse at p. 5.

On the facts given, no attempts were made to locate or contact Chan after the attempts by Mr. Fraser in 1993. Thewarrant, once issued, was simply posted on CPIC with no follow-up. 43 It is the Crown’s responsibility, through its agents, the police, to find an accused and either execute an arrest warrant or serve asummons compelling an individual to come to court to answer charges. An accused has no obligation to make himself available to thepolice or authorities for the execution of an arrest warrant: R. v. Lopes, [2008] O.J. No 573 (Sup. Ct.) at para. 16-17.

In cases where theaccused was unaware of the charges against him or her, such as this case, the matter can be further distinguished, as the obligations onpersons in the community do not extend to contacting the police and the courts on a regular basis to see if he or she might be chargedwith a criminal offence: see Wright at para. 27. It is the responsibility of the state to bring him or her to trial within a reasonable time: R.v. Ram, [1993] B.C.J. No. 1492 at para. 7.” 24. The judge found that there was actual prejudice and inferred prejudice with regards to Mr.

Chan’s right to a fair trial stemmingfrom the unreasonable delay. She therefore ordered a stay of proceedings.

25. In Rickett , supra, the accused was served an appearance notice requiring him to appear in court on April 6, 2004, to answer to impaired driving charges. He did not appear. A warrant was issued for his arrest. He was arrested pursuant to the warrant on March 23, 2011. He testified that he had simply forgotten the date of his appearance. During the entire period, he resided at the same address and maintained the same telephone number. No evidence was presented to explain why the police had not executed the warrant. 26. Johnson, P.C.J. quoted from R. v. Brackenbury , 1988 CarswellAlta 680 (C.A.

Alta) at para. 5 , which reads as follows: “There was some delay attributable to the Crown in failing to execute a warrant for the arrest of the accused following his Ontario incarceration and the learned trial judge was critical of the Crown in that regard. Under all the circumstances, we cannot see how this delay could reasonably be considered as a violation of the respondent’s 11(

b) rights. During the whole of the period in question, the respondent was fully aware of the Alberta charges which he would ultimately have to face; yet he did not voluntarily return to Alberta…” 27. The judge found the case to be distinguishable from Chan in that Mr. Chan had never received an appearance notice. At paragraph 68 he gives his reasons for refusing to order a stay of proceedings: 68 « …Here, the police served documents on the Accused which compelled him to appear in Court. The delay arose because of the Accused’s failure to attend Court when he was obliged to do so.

He was aware of the charges yet did not voluntarily come forward to face them.” 28. We see that there is real disagreement or differences of opinions among judges on who is to blame in these situations. These disagreements are no doubt due to a judge’s belief that he or she is obligated to assign blame for the delay to one of the parties involved. For all intents and purposes, according to judicial precedents the judge must analyse the reasons for the delay and assign the blame to someone. 29. In my view, there are situations where that is not so easily done.

For instance, a snowstorm or a power outage at the courts could delay a trial without anyone necessarily being responsible. By the same token, I am of the opinion that there are situations where both parties are to blame for the delay involving the same period of time, as is the case for Mr. Pelletier’s situation. It is the explanation for the delay that counts. 30. In the case at bar, I am of the opinion that Mr. Pelletier must accept some of the blame for the delay. At the same time, I am of the opinion that the police must also accept some of the blame for this delay. In my view they are both responsible. 31.

For his part, Mr. Pelletier received an appearance notice which obligated him to appear in court. He had been arrested for drunk driving. He knew this was serious because he had retained counsel. He also knew or he should have known that there would be a trial as a result of the charges against him. He testified at the voir-dire that he knew a conviction would mean his driver’s licence would be suspended for one year. No doubt the reason for his retaining Mr. Guérin’s services was to contest the charges. In my opinion, Mr. Pelletier could simply not assume that the whole matter would go away because Mr.

Guérin did not call to give him the trial date. He had a duty to find out what the situation was with respect to these charges. When Constable Zamor informed him that an arrest warrant had been issued against him because he was not present at his trial, it is my opinion that he was given two notices: firstly, a warning that the police might arrest him at any moment and, secondly, a notice that judicial proceedings in New Brunswick could not go ahead due to his absence. He decided to do nothing.

The law did not obligate him to go to the police and turn himself in on an arrest warrant, but if he decided not to, he should not, in my view, be able to take advantage of a constitutional protection that guarantees the right to a trial within a reasonable time. 32. However, I believe that Mr. Pelletier’s responsibility is somewhat diminished by the failure of his lawyer to inform him of his duty to appear at his trial. Mr. Pelletier explained that Mr. Guérin had never informed him of his trial date, nor told him that he should be present at the trial. I do not know why Mr.

Guérin failed to give him this information. Maybe there was a lack of communication between lawyer and client; maybe Mr. Pelletier did not inform him of his change of address. It is all speculation. Nevertheless, although part of the blame can be attributable to the lawyer, if this was the case, the responsibility to follow up still lies on the accused because he is the one who ultimately will suffer the consequences. In my opinion, Mr. Pelletier could not just disregard the matter and shift the entire blame onto his lawyer, especially once he had been informed that a warrant had been issued for his arrest. 33.

For their part, the police immediately took steps to locate Mr. Pelletier after obtaining the warrant. They spoke to him on the phone three times in 2003. They cannot be faulted for Mr. Pelletier’s failure to come to court for his trial. Nor were they passive in their efforts to return Mr. Pelletier to New Brunswick at the beginning of this matter. In my view, the efforts they put forward in 2003 were reasonable. However, since their last communication with Mr.

Pelletier in October 2003, the police did nothing to move the file forward, other than to keep a notice of an outstanding warrant in the province posted on CPIC. It is my belief that this lack of attention to the file is untenable and intolerable. Despite the lack of financial resources, the police have a duty to move a file forward, even in a drunk

driving case. They did not do so. 34. Furthermore, Mr. Pelletier has been residing in New Brunswick since July 2009. He bought a house in the area and obtained a driver’s licence from the New Brunswick Registrar of Motor Vehicles. He registered his vehicle in this province. This information is available and accessible to the police. With this information, the police had access to everything they needed to arrest Mr. Pelletier. Since they have no follow-up system for their warrants, they were unable to pick up on this information.

This allowed the delay to continue and for this, the police are responsible in my opinion. This delay lasted approximately two years, from July 2009, to August 2011. CONCLUSION 35. As Madam Justice McLachlin, now Chief Justice of the Supreme Court of Canada, wrote in Morin , supra, when trials are delayed, justice may be denied: witnesses may forget or even disappear; the quality of evidence may deteriorate; accused persons may find their liberty and security limited and all of this may have a harmful effect on the public interest in the prompt and fair administration of justice. 36.

The delay between the alleged offence and the date proposed for the trial in this case is 10 years and 9 months. This constitutes, a priori , an unreasonable delay. 37. I would put the blame for the delay between March 17, 2003 (date of the trial), and July 1, 2009 (approximate date the accused moved to New Brunswick), mainly on Mr. Pelletier because he neglected to deal with the arrest warrant against him in New Brunswick. I also put some of the blame on the police for having failed to follow up since October 2003. 38. I mostly blame the police for the delay from July 1, 2009, to August 21, 2011. Mr.

Pelletier was in the area, he was living here, he was working here and the police could easily have found his address if a system had been in place to check their outstanding warrants. 39. As to the period of time elapsed since the defendant’s arrest, it is attributable either to the delays inherent to these matters or to the waiver of limitation periods by the defendant’s counsel. 40. Without looking for a mathematical or administrative formula to settle the dispute, I am of the opinion that the state is responsible for a delay that goes beyond what can be considered reasonable in this case.

Between October 11, 2003, and August 21, 2011, the RCMP made no effort to get in touch with Mr. Pelletier and did not try to follow up on the case. Between July 1, 2009, and August 21, 2011, had the police made the least effort to locate Mr. Pelletier, they could easily have arrested him; but since there was no control system, this was completely overlooked. The right to a fair trial is therefore seriously compromised in this case. I am not disregarding the role Mr.

Pelletier played in this case, but taking into account all the factors, I am satisfied that the state’s inattention has resulted in a breach of his right to be tried within a reasonable time and that a stay of proceedings is indicated. I would therefore order a stay of proceedings pursuant to s. 24(1) of the Charter . Signed at Bathurst, on February 19, 2013. Ronald LeBlanc

Judge of the Provincial Court [par. 23] [TRADUCTION] 41 L’

article 511 du Code criminel prévoit que les mandats seront exécutés immédiatement; par conséquent, les périodes d’inaction ou d’inattention de la part du ministère public ou de ses mandataires peuvent être prises en compte lorsqu’il s’agit de décider si un retard est raisonnable. Voici les décisions citées à l’appui : R. c. Satari , [1991] B.C.J. No. 3961 [« Satari »] (un retard de dix-sept mois pour exécuter un mandat a été jugé déraisonnable) et R. c. Duncan , [2007] B.C.J.

No. 971 , 2007 BCPC 126 (retard de sept ans et demi) . 42 La police est tenue de faire davantage que des efforts superficiels pour trouver l’accusé : R. c. Gagnon , [1994] B.C.J. No. 818 , au par. 25 . Elle doit déployer des efforts raisonnables pour trouver l’accusé et exécuter le mandat, en se présentant chez l’accusé ou en tentant de le trouver au moyen du téléphone, par exemple : Satari , à la p. 4; R. c. Yellowhorse , [1990] A.J. No. 964 [« Yellowhorse »], à la p. 5. Il suffit rarement, pour ne pas dire jamais, de simplement afficher le mandat sur le système de données du CIPC: voir R. c.

Wright , [2003] A.J. No. 1540 , 2003 ABQB 1003 [« Wright »], au par. 22 et Yellowhorse, à la p. 5. D’après les faits présentés, rien n’a été fait pour tenter de trouver M. Chan ou de prendre contact avec lui après les tentatives que M. Fraser a faites en 1993.

Une fois décerné, le mandat a simplement été affiché sur le système de données du CIPC et n’a fait l’objet d’aucun suivi. 43 Il appartient à l’État, par l’entremise de ses mandataires, la police, de trouver l’accusé et de soit exécuter le mandat d’arrestation, soit signifier une sommation enjoignant à l’accusé de comparaître en justice pour répondre à des accusations. Un accusé n’est pas obligé de se tenir à la disposition de la police ou des autorités aux fins de l’exécution d’un mandat d’arrestation : R. c. Lopes , [2008] O.J. No. 573 (C. sup. Ont.) , aux par. 16 et 17 .

Dans les cas où l’accusé n’avait pas connaissance des accusations portées contre lui, comme en l’espèce, une autre distinction s’impose, puisque les obligations des membres du public ne vont pas jusqu’à celle de prendre régulièrement contact avec la police et les tribunaux pour établir s’ils ont été accusés d’une infraction criminelle : voir Wright , au par. 27 . Il appartient à l’État de traduire la personne accusée en justice à l’intérieur d’un délai raisonnable : R. c. Ram , [1993] B.C.J.

No. 1492 , au par. 7 . [par. 26] [TRADUCTION] Le retard dans l’exécution d’un mandat autorisant l’arrestation de l’accusé après son incarcération en Ontario était imputable au ministère public et l’éminent juge du procès lui en a fait reproche. Dans les circonstances, nous ne voyons pas comment ce retard peut raisonnablement être considéré comme une violation du droit que l’ al. 11

b) garantit à l’accusé. Pendant toute la période en question, l’intimé avait pleine connaissance des accusations auxquelles il devrait finalement répondre en Alberta; il n’est pourtant pas retourné en Alberta volontairement […] [par. 27] [TRADUCTION] 68 […] En l’espèce, la police a signifié à l’accusé des documents l’enjoignant à comparaître devant la Cour. Le retard a été occasionné par l’accusé qui ne s’est pas présenté à la Cour lorsqu’il était tenu de comparaître. Il avait connaissance des accusations, mais il ne s’est pas présenté volontairement pour y répondre.