R. v. Lanteigne, 2010 NBCA 91

COURT OF APPEAL OF NEW BRUNSWICK 32-10-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - STEVE LANTEIGNE RESPONDENT STEVE LANTEIGNE INTIMÉ R. v. Lanteigne, 2010 NBCA 91 R. c.

Lanteigne, 2010 NBCA 91 CORAM: The Honourable Justice Robertson The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Robertson L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Provincial Court: February 17, 2010 Appel d’une décision de la Cour provinciale : Le 17 février 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: September 21, 2010 Appel entendu : Le 21 septembre 2010 Judgment rendered: December 16, 2010 Jugement rendu : Le 16 décembre 2010

Reasons for judgment by: The Honourable Justice Bell Motifs de jugement : L’honorable juge Bell Concurred in by: The Honourable Justice Robertson The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Robertson L’honorable juge Quigg Counsel at hearing: For the appellant: Gabriel Bourgeois, Q.C. For the respondent: Wendell Maxwell, Q.C. Avocats à l’audience : Pour l’appelante : Gabriel Bourgeois, c.r. Pour l’intimé : Wendell Maxwell, c.r. THE COURT The appeal is dismissed. LA COUR Rejette l’appel. The judgment of the Court was delivered by BELL , J.A. I.

Introduction and background of events leading to a judicial stay of proceedings [ 1 ] On September 21, 2010, the Court dismissed the within appeal with reasons to follow. Here are those reasons. [ 2 ] As a result of a tragic motor vehicle accident on October 20, 2005, the respondent was charged with the following offences: 1. Having caused the death of Patrick François Arseneault while operating a motor vehicle while under the influence of alcohol, contrary to s. 255(3) of the Criminal Code of Canada; 2.

Operating a motor vehicle while the quantity of alcohol in his blood exceeded 80 mg of alcohol per 100 ml of blood, contrary to s. 253(1) (

b) of the Criminal Code ; and

3. Operating a motor vehicle in a manner dangerous to the public, thereby causing the death of Patrick François Arseneault, contrary to s. 249(4) of the Criminal Code . [ 3 ] The information was laid on July 25, 2006, followed by a first Court appearance on September 5 th of that same year. On October 31 st , the respondent elected trial by judge and jury. On the date set for the preliminary hearing, February 7, 2007, the respondent re-elected to be tried by a Provincial Court judge. Trial dates for all three offences were set for November 19-23, 2007, in Shippagan, New Brunswick.

On July 6, 2007, the Provincial Court, on its own motion, advised the matter would be heard from November 20-23, 2007, in Caraquet rather than Shippagan. [ 4 ] On November 20, 2007, the respondent’s counsel requested an adjournment due to a medical emergency. The matter was set over until June 10, 2008. Up to this time, the respondent had not challenged the proceedings based upon any purported violation of his s. 11(

b) Charter right to be tried within a reasonable time. On June 3, 2008, seven days before the scheduled trial, the Crown prosecutor advised the defence counsel that the Crown would be proceeding only with the allegation of having operated a motor vehicle while the percentage of alcohol in his blood exceeded 80 mg per 100 ml of blood. The charges of impaired driving causing death and dangerous driving causing death, the most serious of the three, were to be withdrawn by the Crown.

The change in position arose as a result of new information which demonstrated the victim, rather than the respondent, may have caused the accident. [ 5 ] Needless to say, the respondent welcomed the news that the two most serious charges were being withdrawn. However, on June 10, 2008, rather than withdraw those two charges, the Attorney General directed the entry of a stay of proceedings pursuant to s. 579 of the Code on all three charges. That

section reads as follows:

Attorney General may direct stay 579.

(1) The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings in relation to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated. Recommencement of proceedings

(2) Proceedings stayed in accordance with subsection (1) may be recommenced, without laying a new information or preferring a new indictment, as the case may be, by the Attorney General or counsel instructed by him for that purpose giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but where no such notice is given within one year after the entry of the stay of proceedings, or before the expiration of the time within which the proceedings could have been commenced, whichever is the earlier, the proceedings shall be deemed never to have been commenced.

R.S., 1985, c. C-46, s. 579 ; R.S., 1985, c. 27 (1st Supp.), s. 117. Le procureur général peut ordonner un arrêt des procédures 579.

(1) Le procureur général ou le procureur mandaté par lui à cette fin peut, à tout moment après le début des procédures à l’égard d’un prévenu ou d’un défendeur et avant jugement, ordonner au greffier ou à tout autre fonctionnaire compétent du tribunal de mentionner au dossier que les procédures sont arrêtées sur son ordre et cette mention doit être faite séance tenante; dès lors, les procédures sont suspendues en conséquence et tout engagement y relatif est annulé. Reprise des procédures

(2) Les procédures arrêtées conformément au paragraphe (1) peuvent être reprises sans nouvelle dénonciation ou sans nouvel acte d’accusation, selon le cas, par le procureur général ou le procureur mandaté par lui à cette fin en donnant avis de la reprise au greffier du tribunal où les procédures ont été arrêtées; cependant lorsqu’un tel avis n’est pas donné dans l’année qui suit l’arrêt des procédures ou avant l’expiration du délai dans lequel les procédures auraient pu être engagées, si ce délai expire le premier, les procédures sont réputées n’avoir jamais été engagées. L.R. (1985), ch.

C-46, art. 579 ; L.R. ( 1985), ch. 27 (1 er suppl.), art. 117. [ 6 ] It is important to note that pursuant to s. 579(2), an Attorney General is forever barred from recommencing the proceedings unless he does so within one year from the imposition of the stay. The Crown admits the purpose of the stay was to permit the local prosecutor to direct further investigation, which included searches of two business establishments. The trial judge concluded no application was made for the necessary search warrants until 9 months into the stay. No explanation was provided for the delay.

On June 3, 2009, seven days before the limitation date for doing so, the Attorney General lifted the stay on all three charges. [ 7 ] On August 6, 2009, the respondent appeared in Caraquet through his designated counsel. The trial was set for two weeks commencing January 11, 2010. The total lapsed time from the laying of the information to the conclusion of the trial would therefore have been 3½ years. On November 19, 2009, the respondent filed a notice of his intention to apply for an order that his s. 11(

b) Charter right to be tried within a reasonable time had been violated. He claimed the appropriate remedy under s. 24(1) of the Charter would be a judicial stay of proceedings on all three charges. He also alleged violations of several other Charter rights, none of which are relevant to this appeal. Following a two-day hearing, a judge of the Provincial Court concluded the Crown had violated the respondent’s Charter right to be tried within a reasonable time, and that the appropriate remedy was a stay of proceedings.

The trial judge concluded the Crown was responsible for 19 months of the 42-month delay, namely, the 12 months during the stay and the additional 7 months necessary to bring the matter to trial following the stay. The Crown appealed. II. Issue on Appeal

[ 8 ] The Crown appeals the findings of a Charter breach and the imposition of a stay of proceedings pursuant to s. 24(1) of the Charter . The Crown admits that given the nature of the charges in this case, a delay of 42 months is prima facie excessive. However, it asserts that the period that elapses during a stay pursuant to s. 579 of the Code cannot be attributable to the Crown.

It says the Attorney General functions in a quasi -judicial capacity in relation to the resurrection of stayed charges, and that the Courts can neither review the exercise of his discretion in that regard, nor impose a Charter penalty for any delays resulting from such a stay. I leave to another time any consideration of whether the Courts may interfere with the Attorney General’s exercise of discretion in resurrecting stayed charges.

I limit my analysis to an assessment of whether delays resulting from the direction of a stay by the Attorney General pursuant to s. 579 may be attributed to the Crown for purposes of assessing the reasons for the delay. III. Analysis [ 9 ] The relevant jurisprudence regarding the right to be tried within a reasonable time is set out in R. v. Askov , 1990 CanLII 45 (SCC) , [1990] 2 S.C.R. 1199 , [1990] S.C.J. No. 106 (QL) ; R. v. Morin , 1992 CanLII 89 (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] 2 S.C.R. 3 ; and reiterated by this court in Giberson v. R. , 2010 NBCA 19 , 356 N.B.R. (2d) 196 at para. 4 ; Black v. R. , 2010 NBCA 65 , [2010] N.B.J. No. 287 (QL) at para. 13 ; and Black v. R. , 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’s s. 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. [ 10 ] Prejudice can be inferred in the case of excessive delays: R. v. Smith, 1989 CanLII 12 (SCC) , [1989] 2 S.C.R. 1120 , [1989] S.C.J. no. 119 (QL) , at para 42 ; Askov at para. 67 ; Morin at para. 61 ; Godin at paras. 34, 37 ; and, Giberson v. R. , 2010 NBCA 19 , 356 N.B.R. (2d) 196 , at para. 6 . [ 11 ] The standard of review in s. 11(

b) cases is normally as set out in R. v. Gray , 2001 NBCA 51 , 239 N.B.R. (2d) 83 , (adopted in Giberson at para. 2 ): Whether or not the delay is reasonable within the meaning of paragraph 11(

b) of the Charter is, in a large measure, a question of fact. Unless the trial judge erred with respect to the relevant principles of law, this Court must show deference when asked to reverse a finding that an accused’s right to be tried within a reasonable time has been violated. [para. 6] In this case, however, the Court is being asked to respond to a pure question of law, namely, whether the period of a stay directed under s. 579 should be attributed to the Crown for purposes of assessing the reasonableness of a delay. On that narrow question, the standard

is one of correctness. Reasons for the delay – Actions of the Crown [ 12 ] The appellant contends that any delay arising from a stay directed by the Attorney General should be treated in the same fashion as post-appeal delays, which were considered by the Court in R. v. Potvin , 1993 CanLII 113 (SCC) , [1993] 2 S.C.R. 880 , [1993] S.C.J. No. 63 (QL) . In that case, Sopinka J., for the majority, concluded that s. 11(

b) does not apply to delay, in an appeal from conviction by the accused, nor in an appeal from an acquittal by the Crown. With respect to appeals from acquittals, he reasoned that during the period after an acquittal and service of the Notice of Appeal, the acquitted person is not a “person charged” as contemplated by s. 11( b ). In the present case, the appellant says that once the Attorney General imposed the stay pursuant to s. 579(1), the respondent was no longer a “person charged”.

With respect, I disagree. [ 13 ] In my view, the respondent remained in jeopardy from the date the charge was laid until the date of the judicially-imposed stay of proceedings. This is evident from the language of s. 579(2), wherein Parliament states that proceedings are deemed never to have been commenced after one year has elapsed from the implementation of the stay. Furthermore, other Canadian courts have treated the time between a stay imposed by the Attorney General and the re-commencement of proceedings under

section 579 as attributable to the Crown for purposes of assessing whether there has been an infringement of an accused’s

section 11(

b) right: R. v. Condello , [1997] O.J. No. 3798 (O.C.J.) (QL) at paras. 30 , 35; R. v. A.S ., [2008] O.J. No. 3738, (O.S.C.J.) (QL) at paras. 20-22 ; R. v. Durack , [1997] S.J. No. 518 (Q.B.) (QL) ; R. v. Cole , 2000 NSCA 42 , [2000] N.S.J. No. 84 (QL) . S ee also R. v. Mills , [1993] N.S.J. No. 204 (S.C.) (QL) ; R. v. Pasini (C.A.Q.) , [1991] J.Q. n o 262 (C.A.) (QL) ; R. v. Durette , 1992 CanLII 2779 (ON CA) , [1992] O.J. No. 1044, (C.A.) (QL) . [ 14 ] In addition to my view regarding the accused’s jeopardy during the stay, there is another pressing reason to reject the appellant’s argument that the stay period should not count against the Crown on a Charter enquiry into a potential s. 11(

b) breach. The Attorney General cannot be permitted to usurp the role of the Court. In the present case, the Crown prosecutor (not counsel on appeal) concluded he needed more time to investigate the matter. Rather than instruct Crown counsel to request an adjournment, which would have permitted the Court to judicially weigh the merits of the request and consider the potential s. 11(

b) ramifications, the Attorney General chose to act unilaterally. To endorse the position advanced by the Crown would permit the Attorney General to use s. 579 to avoid his or her s. 11(

b) Charter responsibility to bring accused persons to trial within a reasonable time. [ 15 ] I am of the opinion the trial judge did not err in principle in attributing to the Crown, the delay arising from the stay imposed by the Attorney General. Given that the Crown takes no issue with the remaining analysis by the trial judge, including whether or not the respondent suffered prejudice as a result of the delay, I would dismiss the appeal. ____________________________ B. RICHARD BELL, J.A. WE CONCUR: _______________________________ J.T. ROBERTSON, J.A. _______________________________

KATHLEEN A. QUIGG, J.A.