HER MAJESTY THE QUEEN - v. -, 2011 NBPC 6

R. v. Lanteigne 2011 NBPC 6 CANADA Tabufile : 05230712 PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF BATHURST BETWEEN: HER MAJESTY THE QUEEN - And - JACQUES LANTEIGNE Judgment rendered by the Honorable Paul E. Duffie in the matter of charges under ss. 253 (1) (a), 254 (5) and 129 (

e) of the Criminal Code of Canada . DATE OF HEARING: December 3 rd , 2010 PLACE OF HEARING: Caraquet, New Brunswick DATE OF DECISION: February 15th, 2011. APPEARANCES: Ms. Guylaine Godin on behalf of the Attorney General for the Province of New Brunswick Mr. Wendell Maxwell, Q.C., on behalf of Mr. Jacques Lanteigne DUFFIE, Prov. Ct. J. INTRODUCTION: [ 1 ] The Defendant, Jacques Lanteigne, is charged under ss. 253 (1) (a), 254 (5) and 129 (

e) of the Criminal Code . By way of a pre- trial motion, the Defendant made an application under s. 24 (1) of the Canadian Charter of Rights and Freedoms (Charter) , claiming that his right to be tried within a reasonable time pursuant to s. 11 (

b) of the said Charter has been violated and that a stay of proceedings should be granted by the Court. [ 2 ] APPLICABLE LAW : “ CANADIAN CHARTER OF RIGHTS AND FREEDOMS (Charter): Proceedings in criminal and penal matters

s. 11 Any person charged with an offence has the right (

b) to be tried within a reasonable time. s. 24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” [ 3 ] The onus to satisfy the Court that there has been a Charter breach, as alleged, is upon the Defendant on a “balance of probabilities”. [ 4 ] The Information was sworn on October 14 th , 2008 and the total delay to the trial date is approximately twenty-three months. [ 5 ] THE COURT RECORD SHOWS : • The date of the offence is August 8th, 2008. • The Information was laid in Court on October 14 th , 2008. • The Defendant was asked to appear on October 21 st , 2008, which he did, and he requested disclosure and an adjournment to December 2 nd , 2008 to enter his pleas. • The Defendant’s lawyer appeared on December 1 st , 2008 requesting a further adjournment to review disclosure and to enter pleas on January 15 th , 2009. • On January 15 th , 2009, the Defendant’s lawyer appeared and pled not guilty to the charges and a trial date was set for July 2 nd , 2009. • On June 30 th , 2009 the record shows that the Defendant’s lawyer advised the Court that the disclosure was not ready.

I take it from the arguments provided at the hearing on this motion that the adjournment was required because the translation of the disclosure, undertaken by the Defendant to accommodate his lawyer and prepared for an English trial, was not complete.

Thus the trial was set down for December 11 th , 2009. • On December 9, 2009, the parties received an e-mail from the Court advising them that there was no judge available for the December 11 th , 2009 trial and consequently, a new trial date was set by the Court for April 29 th , 2010. • On April 29 th , 2010, the trial had to be adjourned because the language of the trial chosen by the Defendant was English; and therefore some of the French evidence would have to be translated and no translator was present. Neither party would admit to the responsibility of having the translator present.

The Court did not take a position on who had the responsibility to have the translator present, but did adjourn the trial to August 12 th , 2010 after consultation with the parties. • On August 9 th , 2010, the Defendant sent a Notice that he intended to seek a remedy pursuant to

Section 24 of the Charter by reason of a s. 11 (

b) violation of the Charter. • On August 12 th , 2010, the Crown requested an adjournment to prepare for the motion since the notice was at the last minute. The hearing was adjourned to August 24 th , 2010. COMMENTS ON THE COURT RECORD: [ 6 ] It is obvious that the progress of this case and its eventual trial date was affected by the fact that the Defendant, who had been dealt with by the police in the French language at the time of the incident, decided to retain the services of an English lawyer and thus proceed with an English trial.

It would be trite to say that an accused has the right to hire the lawyer of his choice and request a trial in his preferred language. [ 7 ] However, this required the translation of the disclosure provided by the Crown to the Defendant. The Defendant’s lawyer

advised the Court of this requirement at the December 1 st , 2008 court appearance and further advised that the Defendant would arrange for the translation of the disclosure. At that time the matter was adjourned to January 15 th , 2009 to review the disclosure prior to entering the pleas. On January 15 th , 2009 the Defendant entered pleas of not guilty and the trial was set for July 2 nd , 2009. [ 8 ] On June 30 th , 2009, the Defendant’s lawyer advised the Court that the translation of the disclosure was not complete and a further adjournment was required.

As a result of this, the case was adjourned to December 11 th , 2009 for trial. [ 9 ] On December 9 th , 2009, the Court, on its own initiative, adjourned the trial to April 29 th , 2010 due to the fact that no judge was available to preside over this trial on December 11 th , 2009. [ 10 ] The parties appeared on April 29 th , 2010 for the trial and a procedural dispute arose in regards to the presence of a translator.

The Defendant’s position was that it would be difficult to proceed with the trial without a translator because several of the conversations between police and the Defendant were in French and are crucial to the Crown’s case; consequently, the Crown witnesses must testify to this evidence in French and said evidence must be translated by a qualified translator. [ 11 ] The Crown’s position was that they were prepared to proceed with the trial in English and didn’t believe they required a translator.

Also, it was their view that, if a translator was required, the Defendant should have made the arrangements or advised them of the necessity of a translator. [ 12 ] As a result, the case was adjourned to August 12 th , 2010. At the time of scheduling this new date, the Court spoke of the issue of unreasonable delay and tried to suggest dates earlier than August 12 th , 2010. In the Crown’s brief on law and in arguing this motion, the Crown claimed that the eventual August trial date was caused by defense counsel not being available until August.

I find that the court record does support this claim. [ 13 ] The court transcript of April 29 th , 2010 at pages 26, 27 and 28 contains the following remarks: note Ms. Guylaine Godin is representing the Crown and Mr. Wendell Maxwell, the Defendant. “THE COURT: The earliest date that I have is fourth- May 14 th , I’m offering up May 14 th . ME GODIN: No, we, we should go on August date because- THE COURT: Why? ME GODIN; - he’s, he’s from Montreal as he’s living in Montreal now, he’s a RCMP in Montreal so, he have like a

schedule and – THE COURT: Well – ME GODIN: Well, he’s here today. THE COURT: - what I am going to do, look, what I am going to do, I’m going to offer up dates – ME GODIN: O.K.

THE COURT: - but the, there are considerations that are at play here that we should all be mindful of. And I say this to defence as well as to Crown so, I’m going to offer up some dates so that at least from an institutional point of view that the Court will not have been responsible for any delays. I’m offering up the 14 th of May. Is the Crown, what does the Crown say, or – Here, here, here are the dates that I’m, that I’m going to offer up, take, take note of them: May 14 th , May 21 st , June 17 th and 18 th , 25 and 30 th , July the 2 nd , 5 th , 7 th and 8 th .

So, do you want, do you want a moment to look at those or, and I can take a short recess or – so, I will start on the 14 th of May, Crown? ME GODIN: Not available. THE COURT: Pardon. ME GODIN: Not available, we can’t. THE COURT: Mr. Maxwell. MR. MAXWELL: I, I was available. THE COURT: May 21 st ? ME GODIN: Not possible for the Crown. THE COURT: Mr. Maxwell. MR. MAXWELL: I’m available, Your Honour. THE COURT: June 17 th ? ME GODIN: That’s O.K. for the Crown ” [ 14 ] The scheduling of this trial continued to be an issue for Mr. Maxwell with another June date.

The month of July, he was on vacation so the August date was mutually agreed upon. It was clear from the outset that Ms. Godin, on behalf of the Crown, was concerned that one of her witnesses would not be available until August. Afterwards, Ms Godin changed her position and finally agreed to the June dates commencing with June 17 th and it must be noted that Mr. Maxwell was fine with the dates of May 14 th and 21 st initially suggested by the Court. LEGAL FRAMEWORK: [ 15 ]

Section 11(

b) of the Charter explicitly focuses upon the individual interest of liberty and security of the person. Nonetheless there is, at least by inference, a community or societal interest implicit in s. 11(b). The failure of the justice system to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community's frustration with the judicial system and eventually to a feeling of contempt for court procedures.

When a trial takes place without unreasonable delay, with all witnesses available having a fresh memory, it is far more certain that the guilty parties who committed the crimes will be convicted and punished and those who did not will be acquitted and vindicated. [ 16 ] Both the Defendant and the Crown presented arguments and case law outlining the well recognized principles surrounding an application under s. 11 (

b) of the Charter .

[17] The leading cases in regards to a

Section 11 (

b) application are the Supreme Court of Canada decisions in R. v. Askov (S.C.C.), as clarified and refined in R. v. Morin (S.C.C). [18] In Morin, Sopinka, J. speaking of 11 (

b) of the Charter says on page 13: “The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

section is designed to protectagainst factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, it is axiomaticthat some delay is inevitable. The question is, at what point does the delay become unreasonable?" While the Court has at timesindicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows: 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, and (

e) other reasons for delay; and 4. prejudice to the accused.” [19] The Court must now decide whether the delay of approximately twenty-three months is an unreasonable delay in thecircumstances. If the Court does find that the Defendant’s rights have been violated under s. 11 (

b) of the Charter, is a stay ofproceedings the proper remedy? [20] The Defendant essentially submits that some of the delays are unreasonable considering the lack of complexity of the case andbased on the precedents set by our own Court of Appeal that delays beyond an eight month period in provincial courts deserve to beexamined against the criteria set out in R v. Morin, supra. [21] See R. v. Firth,

(1992) N.B.J. No. 363, a New Brunswick Court of Appeal case wherein Chief Justice Stratton stated: “The Morin and Sharman cases reaffirmed the six to eight month range as the guideline for institutional delay after committalfor trial.” [22] The Crown argued that the delays between October 21st, 2008 and December 11th, 2009, being a period of fourteen monthsshould all be attributable to the behavior of the Defendant as he requested the adjournments.

Furthermore, the four month delay due to the adjournment required on April 29th, 2010 should be attributed to the Defendant as the Crown claims it had no responsibility to ensurea translator was present for the trial. [23] Further the Crown was of the view that the Defendant had not suffered any prejudice as he was not detained pending trial, norwas his right to a fair trial compromised. ANALYSIS:

Length of the Delay: [ 24 ] Both parties agree that an approximate twenty-three month delay in this type of case raises legitimate concerns in regards to the reasonableness of the delay and the reasons surrounding the delay. Waiver of Some or the Time Periods: [ 25 ] In these proceedings, there has been no express waiver of all or part of the time periods.

Reasons for the Delay: [ 26 ] It is necessary to consider the reasons for the delay and allocate those reasons to the following categories: inherent time requirements of the case; actions of the Defendant; actions of the Crown; limits on institutional resources; and other reasons for the delay. In order to engage in this balancing exercise, I propose to look at specific time periods. [ 27 ] My findings as to the Court record and the delays attributable to various factors are as follows: The Intake Phase and Defendant delay: (

i) Every criminal case has certain inherent time requirements, which inevitably lead to some delay. The inherent "intake" time requirement of a case is the time reasonably required to have the case ready to proceed to trial. This "intake" stage of a criminal case includes laying the charge, retention of counsel, applications for bail and other pre-trial procedures. The intake period is an inherent and necessary phase in the life of every criminal prosecution and is neutral in the 11(

b) analysis, but only to the extent that it is reasonable. (ii) The availability of adequate institutional resources is assumed when determining what is a constitutionally reasonable intake time and therefore neutral, for a given case. (iii) The laying of the Information on October 14 th , 2008 to the eventual plea on January 15 th , 2009 would be part of the intake and the inherent time requirement of the case. The Defendant did request two adjournments during this period. The first adjournment was requested by the Defendant to consult a lawyer.

The second adjournment was by his lawyer requesting the disclosure and to review same prior to the plea. The requested adjournments before entering a plea were legitimate. However, a three month period to complete this exercise is relatively long; therefore the Defendant must share in the responsibility of this period of delay. Consequently, I would conclude that two months of this period are neutral and one month is attributed to the Defendant. Institutional Delay: (iv) The Defendant pled not guilty on January 15 th , 2009 and his trial was set for July 2 nd , 2009.

I find this to be six month institutional delay. Defendant’s Delay : (

v) Since the Defendant was being represented by an English speaking lawyer, the trial was to proceed in the English language. To properly prepare for the case, the Defendant’s lawyer had undertaken to have the disclosure translated for his purposes and to prepare for trial. The translation not being complete prior to the July 2 nd , 2009 trial date, the Defendant requested a further adjournment to complete the translation. Thus the trial was set over to December 11 th , 2009. In my view, this delay of six months must be attributed to the Defendant.

The fact is that the trial could have proceeded on July 2 nd , 2009 if the translation had been completed in time. That being said, I can appreciate the time required to have matters translated is a lengthy proposition. I dealt with the issue of the translation of disclosure in R. v. Basque, 2010 NBCP 27 CanLII. In that case, a French speaking Defendant was charged with the same type of offences, as in the present case, however, the disclosure he was provided with was all in English. Consequently, the Crown had the

responsibility to have the disclosure translated and agreed to do so. The delay for the translation was nine 9 months. Therefore the delay of six months for the translation can be explained. Nevertheless, the Defendant, in my view, must be attributed the delay. Institutional Delay: (vi) The adjournment of the December trial date by the Court due to the fact that there was no judge available to hear the case, is an institutional delay of four months. Crown Delay: (vii) Then there is the April 29 th , 2010 adjournment due to the dispute over the availability of a translator.

The trial was adjourned to August 12 th , 2009 causing another four month delay. In regards to who was responsible to ensure the presence of the translator for the trial, I must agree with the Defendant. The Crown knew or ought to have known that it was trying an English case even though the Defendant, at the time of the alleged incident, requested to be dealt with in French. All previous court appearances from December 1 st , 2008 to and including April 29 th , 2010 were carried out in the English language.

Therefore, it was obvious that some of the important evidence to be introduced was French in nature and thus had to be translated. The Crown was aware that the breathalyzer demand, the police caution and the right to counsel were all made and given by the police officer to the Defendant in French. For example, if the Crown had wanted to introduce a French document in this English trial, it would have had to have it translated or have a translator present to do so. The same applies to important and pertinent oral evidence.

Therefore, regardless of the language of the trial, should the Crown wish or be required to present part of its case in another language, it must do so through a translator unless the parties consent to a bilingual trial, which was not the case in this matter. (viii) Furthermore, it certainly has been the practice in my region, where we receive many different types of language requests for trials, that the Crown takes responsibility for presenting and prosecuting its case and if this means having a translator present, the Crown will make the necessary arrangements.

In the present case, I find that a translator was required and the Crown failed in its obligation to be ready to present its case on April 29 th , 2010. Having said that, I do recognize that various prosecutors were assigned to this case at different intervals and the issue of the translator may have just fallen through the cracks. (ix) On April 29 th , 2010, there was also the issue of the new trial date set for August 12 th , 2010. As previously pointed out, I find the Crown’s position that it was the Defendant who was not ready for trial until August, to be factually wrong.

The first date the Crown agreed to after dismissing two dates in the month of May was June 17 th ; then it was the Defendant’s lawyer who had prior commitments during that period and was not available at all in July; thus the August date was assigned. Consequently, at the very least, there is a shared responsibility in regards to this additional four month delay. However, the new August trial date would not have been required if the Crown would have been prepared to proceed with the trial on April 29 th , 2010. As a result, this period of time must be attributed to the Crown. [ 28 ] In

summary, the delays can be categorized as follows: • Two month inherent delay (intake) neutral and one month attributed to the Defendant – October 14 th , 2008 to January 15 th , 2009. • Six month institutional delay for setting the initial trial date – January 15 th , 2009 to July 2 nd , 2009. • Six month Defendant delay for translation of disclosure – July 2 nd , 2009 to December 11 th , 2009. • Four month institutional delay due to no judge being available – December 11 th , 2009 to April 29 th , 2010. • Four month Crown delay for failing to present its case on April 29 th , 2010 due to the absence of a translator

[ 29 ] As a result, the total delays attributable to the Crown are the institutional delays and the Crown delays amounting to fourteen months, seven months to the Defendant and two of the approximately twenty-three months overall delay are neutral. Even though some of the delays must be shared by the Defendant, this overall lengthy delay is of concern. [ 30 ] In Morin , supra, Sopinka, J., speaking of 11 (

b) of the Charter , says on page 13: Actions of the Crown: “As with the conduct of the accused, this factor does not serve to assign blame. This factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated. Such actions include adjournments requested by the Crown, failure or delay in disclosure, change of venue motions, etc. An example of action of this type is provided in Smith , supra , where adjournments were sought due to the wish of the Crown to have a particular investigating officer attend the trial.

As I stated in that case there is nothing wrong with the Crown seeking such adjournments, but such delays cannot be relied upon by the Crown to explain away delay that is otherwise unreasonable.” And on page 15, he says the following: “ In Askov we were dealing with a period of delay of approximately two years subsequent to committal for trial. All of this delay was institutional or systemic delay. Applying the factors that had crystallized in Smith, supra, we concluded that the delay was clearly unreasonable.

In his reasons, which in this respect were unanimous, Cory J. did go on to state, at p. 1240: ... a period of delay in a range of some six to eight months between committal and trial might be deemed to be the outside limit of what is reasonable.” [ 31 ] Consequently, I find that the fourteen month delay attributable to the Crown in bringing this case to trial is one that warrants further examination.

Morin sets out the guideline as follows on page 16: “ In Askov , Cory J., after reviewing comparative statistics, suggested that a period in the range of 6 to 8 months between committal and trial would not be unreasonable. Based on the foregoing, it is appropriate for this Court to suggest a period of institutional delay of between 8 and 10 months as a guide to Provincial Courts.

With respect to institutional delay after committal for trial, I would not depart from the range of 6 to 8 months in Provincial Court.” [ 32 ] The question to be answered at this time is whether the Defendant on the balance of probabilities, has established a prima facie case for unreasonable delay. [ 33 ] There are two major delays to be reviewed: the first being the adjournment imposed by the Court in December 2009 and the second is the adjournment required on April 29 th , 2010 because the Crown was unable to proceed without a translator. [ 34 ] The December adjournment by the Court was highly unfortunate.

The record simply shows that no judge was available. There is no evidence on the record that the adjournment was required due to some urgency such as illness or other reasonable explanation why a judge was not available. Therefore, I must conclude that this adjournment was simply a result of the lack of judicial resources .

This adjournment certainly contributed significantly to the progress of this case and a lost opportunity for the Defendant to have his trial within a reasonable time. [ 35 ] In regards to the April delay I do have difficulties with the Crown being unable to prosecute its case due to the absence of a

translator. This adjournment pushed the trial date to August 12th, 2010, well beyond the delays outlined by our Court of Appeal and theSupreme Court of Canada in the R. v. Morin, supra, decision. [36] When considering the factors to be taken into account as outlined by Justice Sopinka, in Morin, supra, I find the overall length ofthe delay to be unreasonable in the circumstances. The April delay, in my view, was the one that broke the camel’s back. [37] Consequently, I find that the Defendant has made out a prima facie case that there was an unreasonable delay and thus primafacie proof of prejudice.

Now, I must answer the question whether the right of the accused to have a trial within a reasonable timeoutweighs the conflicting interest of society in bringing a person charged with a criminal offence to trial. [38] In Askov, Justice Cory, in the case of very long delays, found there was a “…virtually irrebuttable presumption of prejudiceto the accused resulting from the passage of time. Even in the absence of specific evidence of prejudice, in Morin, Justice Sopinka,stated “prejudice may be inferred from the length of the delay.

The longer the delay the more likely that such an inference can bedrawn.” [39] In the present case, I find this inferred prejudice Justice Cory speaks of is significant. It is true that there is no evidence ofspecific prejudice above the inferred prejudice from delay. However, it is clear that there have been financial and emotionalconsequences to this delay. While it cannot be equated to the hardship of someone who is in custody awaiting trial, it is still significant. It is not just related to the fact of the charges, but it is in relation to the number and length of the delays.

Obviously, if these types ofdelays were accepted in our court system as routing it could make it financially prohibitive for an accused to prepare and make fullanswer and defense. Furthermore, if such delays became the norm in our court, it would paralyze its proper function. [40] These are relatively routine types of cases and, at one point, after a lengthy delay, a Defendant has the right to ask when enoughwill be enough.

Obviously, the architects of the Canadian Charter of Rights and Freedoms were of the same view in that there must be athreshold and remedy against undue and unreasonable delays. [41] The most recent guideline on this issue comes from Justice Cromwell in R. v. Godin, 2009 SCC 26 CanLII where he states atpage 8 paragraphs 30-31: [30] Prejudice in this context is concerned with the three interests of the accused that s. 11(

b) protects: liberty, as regardsto pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion thataccompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of thedefendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3. [31] The question of prejudice cannot be considered separately from the length of the delay.

As Sopinka J. wrote inMorin, at p. 801, even in the absence of specific evidence of prejudice, "prejudice may be inferred from the length of the delay.The longer the delay the more likely that such an inference will be drawn". ... [42] Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(

b) violation.This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanationsfor why it occurred. [43]

Section 11 (

b) recognizes that the impact of the criminal justice process can be dramatic and that the injury to security of theperson flowing from a sustained overexposure to the process cannot be minimized. In R. V. Mills, (SCC), 1986 1 S.C.R.863 CanLII, the Supreme Court of Canada had this to say at page 28, paragraph 145: “Additionally, under s. 11(b), the security of the person is to be safeguarded as jealously as the liberty of the individual.

In thiscontext, the concept of security of the person is not restricted to physical integrity; rather, it encompasses protection against"overlong subjection to the vexations and vicissitudes of a pending criminal accusation" (A. Amsterdam, loc. cit., at p. 533).These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, includingpossible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction.

These forms ofprejudice cannot be disregarded nor minimized when assessing the reasonableness of delay.” [44] The Defendant, in this case, offered very little by way of prejudice beyond the natural stress, anxiety and financial burden of being

charged. He did legitimately claim that those aspects of the process have been significantly amplified by both the passage of time and theseveral court appearances required. [45] While much of this prejudice is initially attributable to the mere fact of the charges, there is no doubt that the passage of timesignificantly amplified the impact on this accused. The prejudice to the accused from the delay in this case cannot be characterized asextreme, but it is far from insignificant. [46] In my view, these types of offences should have been dealt with within a six to eight month period in our Provincial Court.

I findthe delays, in these circumstances, have invariably increased the cost of the proceedings and loss of time for the Defendant. As well,the Defendant is faced with the stigma of the charges over a lengthier period of time than warranted and there is always the anxiety ofnot knowing one’s fate. The excessive delay in this case overtakes the societal interest of trying this case in any event. Even thoughdrinking and driving offences and resisting a police officer are serious charges I am guided by the directions in R. v.

Morin, supra, thatthe seriousness of the offences must be weighed along with the other factors in assessing the 11 (

b) Charter issue. CONCLUSION [47] Having balanced the competing interest, I find in favour of the Defendant. The Defendant has satisfied me on a balance ofprobabilities that his rights under s. 11 (

b) of the Charter were violated. [48] Having found that the Defendant’s rights were infringed by the unreasonable and lengthy delay in this case, I must nowdetermine the remedy. [49] Section 24 (1) of the Charter of Rights and Freedoms says: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” [50] The Supreme Court of Canada has held that the minimum remedy for a violation of s. 11 (

b) is a stay of proceedings because thecourt has lost jurisdiction to proceed. (R. v. Rahey, (S.C.C) [51] For the reasons outlined, the delay in failing to proceed to trial within a reasonable time offends s 11 (

b) of the Charter and Igrant the only remedy which has been established under the jurisprudence and that is a stay of proceedings of all charges against theDefendant. Filed at Caraquet, New Brunswick, this 15th day of February 2011.

_____________________________________ Paul E. Duffie, Judge of the Provincial Court of N.B.