R. v. Penney, 2019 NLCA 3
Opinion
Her Majesty the Queen (appellant) v. Cody Penney (respondent) (17/03) Indexed As: R. v. Penney 2019 NLCA 3 4 C.A.N.L.R. 32 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., Welsh and Goodridge JJ.A. January 15, 2019
Summary: The Crown appealed a stay of proceedings granted by the trial judge. Held: Appeal dismissed. Welsh J.A. (Fry C.J.N.L. and Goodridge J.A. concurring): After hearing the submissions of the parties, the Court was satisfied that the trial judge did not err in entering a stay of proceedings pursuant to
section 11(
b) of the Charter . The Court noted that while the judge did not err in this case, for the purposes of the
section 11(
b) analysis, the issue of witness unavailability involves a fact-specific determination. Cases cited: R. v. Gopie , 2017 ONCA 728 R. v. Elmpak-Mackie , 2018 ONCJ 869 R. v. Bragg , 2016 CarswellNfld 420 (NL Pv. Ct.) Counsel: Llloyd M. Strickland, for the appellant; Rosellen Sullivan, for the respondent. This appeal was heard and decision rendered orally on January 14, 2019 by Fry C.J.N.L., Welsh and Goodridge JJ.A. The following memorandum of disposition was filed on January 15, 2019 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] This is an appeal of a decision by the trial judge granting a stay of proceedings based on a breach of
section 11(
b) of the Canadian Charter of Rights and Freedoms , the right to be tried within a reasonable time. [ 2 ] The Court’s decision was given at the conclusion of the hearing of the appeal. The panel concluded: We have considered the written and oral submissions of counsel for the Crown and the written submissions of counsel for Mr. Penney.
We are satisfied that the appeal should be dismissed, generally for the reasons of the trial judge ( 2016 NLPC 0116 PA00924 ). [ 3 ] The Court added a caution regarding consideration of the unavailability of a witness for purposes of the analysis under
section 11(
b) of the Charter . While the Court did not find error by the trial judge in the circumstances of this case, we wish to reiterate that this issue involves a fact-specific determination. Decisions that may be of assistance in subsequent appeals include: R. v. Gopie , 2017 ONCA 728 ; R. v. Elmpak-Mackie , 2018 ONCJ 869 ; and R. v. Bragg , 2016 CarswellNfld 420 (NL Pv. Ct.) . [ 4 ] In the result, the appeal was dismissed. Appeal dismissed .
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