R. v. Dupuis Date:, 2015 BCPC 144

Citation: R. v. Dupuis Date: 20150527 2015 BCPC 0144 File No: 38486 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAUN ALEXANDER DUPUIS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: B. Goddard Counsel for the Defendant: B. Dybwad Place of Hearing: Campbell River , B.C. Date of Hearing: May 27, 2015

Date of Judgment: May 27, 2015 [1] Mr. Dupuis is charged with one count of sexual assault and one count of sexual touching, contrary to sections 271 and 151 ofthe Criminal Code. He alleges an infringement of his right to be tried within a reasonable time [Canadian Charter of Rights &Freedoms,

section 11(b)], and applies for a judicial stay of the prosecution on that ground. [2] The Crown alleges that Mr. Dupuis committed the offences on March 29, 2014. The Information was sworn on that day. OnMarch 31, 2014, Mr. Dupuis was arrested and released on a promise to appear. On May 8, 2014, Mr. Dupuis’ counsel wrote to Crowncounsel, requesting disclosure of the results of tests then being performed on: (

i) a “sexual assault kit”, used by the RCMP wheninvestigating such cases; and (ii) samples taken from the alleged victim on the day of the incident. On May 12, 2014, Mr. Dupuis madehis first court appearance on these charges. On that occasion, and on six subsequent occasions between May and October, 2014, Mr.Dupuis appeared in court. On each of those occasions, the matter was adjourned at the request of the defence, and without opposition bythe Crown, because the test results were not available. The test results were recorded in a written report dated September 19, 2014.

Thatreport was provided to Crown counsel on September 25, 2014. Mr. Goddard says that the report was provided to defence counsel onSeptember 29, 2014. Mr. Dybwad says that it was not provided to him until October. On October 20, 2014, Mr. Dupuis entered a pleaof not guilty to both charges and they were set for trial on May 27, 2015. [3] In this case, the elapsed time between the arraignment and the trial date is just over 7 months. Having regard to the guidanceprovided in R vs Morin (SCC), [1992] 1 SCR 771 @ paragraph 55, Mr. Dybwad concedes that that delay was notunreasonable.

However, he submits that the 5-month lapse of time between his request for the forensic test results and the delivery ofthose results was unreasonable, and infringes Mr. Dupuis’ Charter right. [4] The question whether a particular delay was unreasonable is a question of fact. In this case, I was provided with noinformation bearing on the question. For example, I was not told what samples were taken, what tests were to be performed on thesamples, by whom, or how long it would take to complete and report upon those tests if they were conducted with reasonable diligence.

I think it clear that such information is necessary to determine whether the 5-month lapse of time between May and October wasreasonable. [5] The observations in paragraph 4 raise the question of who bears the onus on the issue. It is well-settled that, generally, anaccused person who alleges an infringement of his Charter rights carries the onus of proving the facts necessary to establish theinfringement. However, I think that that principle is subject to an exception of general application.

Generally speaking, where a relevantfact is within the exclusive knowledge of one party, that party carries the onus of proof of that fact: R vs Strand Electric Ltd (ON CA), [1968] OJ No. 1291; [1968] 1 OR 190; [1969] 2 CCC 264. Although I was referred to no authority on the point, it seemsto me that a party who seeks to invoke the exception must carry the onus of showing that the exception applies; i.e. that the relevantevidence is in the exclusive possession of the opposing party. [6] In this case: a.

I was provided with no support for an inference that the information necessary to determine how long it would take, by theexercise of reasonable diligence, to complete the tests and report the results is within the exclusive possession of the Crown. I wouldhave thought that independent forensic consultants would be available to advise how long those steps would take if conducted withreasonable diligence. b.

The information necessary to determine whether there were any special circumstances or difficulties which, in this case, delayedcompletion of the tests and reporting of the results is within the exclusive possession of the Crown. Accordingly, I conclude that the onus is on Mr. Dupuis on the first point, and on the Crown on the second point. The second pointwould arise only if Mr.

Dupuis had first discharged his onus of proving that, absent special difficulties or circumstances, the tests oughtto have been completed and the results reported significantly before they were. [7] Accordingly, I conclude that it has not been shown that the delay between May and October was unreasonable, and Mr.Dupuis’ application fails on that ground. May 27, 2015 ____________________________T. Gouge, PCJ