R v Mamula, 2022 MBPC 34

CITATION: R v Mamula , 2022 MBPC 34 THE PROVINCIAL COURT OF MANITOBA PINE FALLS BETWEEN Her Majesty the Queen ) ) K. Hart for the Crown ) - and - ) ) ) Igor Mamula ) ) M. Schwartz for the Accused (Accused) ) ) Reasons for Decision ) Delivered: June 21, 2022 C.A. DEVINE, P.J. INTRODUCTION [ 1 ] Mr. Mamula was charged with committing two offences pursuant to The Wildlife Act , CCSM c. W130 and the Vehicle Use in Hunting Regulation , MR 202/94 on September 16, 2019, for hunting moose unsafely and using a vehicle to hunt moose off a designated route near Bissett, Manitoba.

On October 29, 2019, he set the matters down for trial and was provided a trial date of September 9, 2020. [ 2 ] That trial did not occur because the COVID pandemic intervened. Mr. Mamula’s trial is now scheduled for July 11, 2022. He has brought a Charter motion alleging unreasonable delay pursuant to s. 11(

b) and is seeking the remedy of a stay of proceedings pursuant to s. 24(1). [ 3 ] The parties have agreed that the overall elapsed time is 33 months and 25 days, which exceeds the presumptive ceiling of 18 months for matters in the Provincial Court established by the Supreme Court of Canada in R v Jordan , 2016 SCC 27 . [ 4 ] The Crown argues that the presumption of unreasonable delay in this case has been rebutted.

She argues that but for the COVID pandemic, the accused’s trial would have occurred on September 9, 2020 and that the intervening 22 months should be subtracted from the overall elapsed time, because the pandemic was a discrete exceptional circumstance.

Once the 22 months attributable to the COVID pandemic is subtracted, the overall time from charge to trial falls below the presumptive ceiling. [ 5 ] It then falls to the defence to show that he made every effort to expedite the matter, which he did, but notwithstanding his efforts, the case took markedly longer than it reasonably should have to get to trial. [ 6 ] This case turns on a singular issue.

The defence argument is that although he agrees that the COVID pandemic is a “discrete exceptional circumstance” within the meaning of Jordan , the Crown failed to take reasonable steps to mitigate the delay emanating from the COVID pandemic. UNREASONABLE DELAY AND COVID [ 7 ] The Supreme Court in Jordan recognized that a discrete exceptional event is not an opportunity to be complacent.

The Crown and the court must always be prepared to mitigate the delay even resulting from the unexpected: The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events ( see R. v.

Vassell , 2016 SCC 26 , [ 2016] 1 S.C.R. 625 ). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). [Emphasis added] (at para 75) [ 8 ] The Crown and the court are expected, “within reason” to prioritize cases that have faltered due to unforeseen events.

[ 9 ] The COVID pandemic defies hyperbole as a “discrete exceptional event”. If humans lived for 500 years, we might have imagined another plague that would spread over the planet. Failing historical memories, however, we have experienced the unimaginable.

Virtually every human, every country, and all of our human institutions have been isolated, shut down, and in some cases, damaged. [ 10 ] In several decisions of the Provincial Court and one in the Manitoba Court of Queen’s Bench, my colleagues have dismissed applications alleging unreasonable delay during the pandemic. [1] All of them have characterized the pandemic as a discrete intervening event.

All of them have considered the proper legal tests and rules, including whether there was reasonable mitigation of the delay. [ 11 ] Since most of those decisions were released, the Supreme Court has released its decision in R v Sullivan , 2022 SCC 19 , which directs courts of the same jurisdiction as a matter of horizontal stare decisis , to bind themselves to previous decisions of their court on legal and constitutional issues, unless the case can be distinguished for one of the reasons permitting not following an otherwise binding decision: 1.

The rationale of an earlier decision has been undermined by subsequent appellate decisions; 2. The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or 3. The earlier decision was not fully considered, e.g. taken in exigent circumstances. [ 12 ] None of those circumstances are present in the cases decided by my colleagues or Justice Toews. They are binding on this decision unless otherwise distinguishable. [ 13 ] The defence argued that these decisions are all distinguishable from Mr.

Mamula’s case because in those cases the Crown made reasonable efforts to mitigate the delay whereas in this case they did not. DID THE COURT AND CROWN MITIGATE THE DELAY? [ 14 ] In this case, I am satisfied that both the Crown and the court have mitigated the delay. [ 15 ] The Provincial Court has worked throughout the pandemic to balance access to justice, timely justice and public health safety. Part of this mitigation has been to prioritize certain matters over others, in consultation with the Crown and defence.

As a result, criminal matters where the accused person was in custody were prioritized to be heard before criminal matters where the accused person was out of custody. Child protection matters were prioritized over other non-criminal matters. [ 16 ] Provincial Offences Court, which is the court in which this trial is scheduled to be heard, has remained closed over much of the pandemic.

Even today, Provincial Offences Court is sitting only in the regional court centres, those being Winnipeg, Portage la Prairie, Brandon, Dauphin, The Pas and Thompson, and is still not sitting in regional circuit court locations such as Pine Falls. So, notwithstanding that no trials are being heard in Provincial Offences Court in the circuit court locations, Mr.

Mamula’s trial is being heard. [ 17 ] In addition to the global mitigation efforts taken by the court and the Crown on all matters within the Provincial Court during the past two and one-half years, this matter has received additional attention, and the delay caused by the pandemic has been mitigated even further. Defence counsel has been particularly diligent in making every effort to move this matter along and the Crown and the court have been as receptive as is reasonable. [ 18 ] This matter has been case managed; two Case Management conferences were held before Judge Schille.

During the first Case Management conference a second Case Management was scheduled to continue discussing and narrowing the issues. On September 16, 2021, at the second Case Management, Judge Schille authorized a special sitting for this matter and on September 29, 2021, the delay application date of June 13, 2022 and the trial date of July 11, 2022 were scheduled. [ 19 ] That is compelling evidence of the delay being mitigated.

In addition, there is an affidavit filed by the prosecuting Crown attorney who states that she made enquiries to have the matter heard virtually, but after consulting with her senior supervising Crown Attorney, learned that only matters that were being prosecuted and heard solely on the basis of certificate evidence were being heard virtually. [ 20 ] The Crown’s general mitigation of delay for all cases also required that this file was reviewed to determine whether there really was a reasonable likelihood of conviction and a public interest in prosecuting the matter, in an effort to consider whether to continue the prosecution. [ 21 ] These are mitigating steps. [ 22 ] The sole reason the case has not proceeded sooner is because of the COVID pandemic and the necessary balancing and prioritizing the Provincial Court and the Crown have undertaken over the past two years. [ 23 ] The prosecution, case management and scheduling of this trial demonstrates diligence, and is the opposite of what the Supreme Court’s decision in Jordan sought to tackle: “a cultural of delay and complacency towards it” (at para 29). [ 24 ] Although the defence attempted to have this matter heard in Winnipeg, the transfer was not permitted by the Court, given the prioritizing in place, which required that other matters would be heard before it.

Moreover, given the significant backlog of all cases before the Provincial Court, it is not certain the matter would have been heard before July 11, 2022 in the event that it had been transferred to Winnipeg.

[ 25 ] There is a further reason it was appropriate not to transfer this matter out of its jurisdiction. This is a matter that should be heard in the rural location of Pine Falls because it involves hunting safety in an area where there is a moose population and a population of people who have hunted moose for food, shelter, clothing, housewares and tools for at least hundreds of years. The people in the area have an interest in having hunting offences that occur on the land in their area be heard in their local court. It is not a matter where it would be appropriate to have the matter heard in Winnipeg.

A similar point was made by my colleague Judge Eyrikson in Turtle (at 12). CONCLUSION [ 26 ] I disagree that the Crown has not made efforts to mitigate the delay in this case. The very fact that this trial is being heard before the Provincial Offences Court in Pine Falls is even open is strong evidence to the contrary. Accordingly, the period of time from the new trial date to the original trial date of 22 months should be subtracted, leaving the overall elapsed time of 11 months well below the Jordan ceiling.

This matter is being heard as soon as is reasonable and has not in the circumstances been unreasonably delayed. [ 27 ] The accused’s motion is dismissed. Original signed by Judge Devine C.A. DEVINE, P.J.