2010 NLCA 27, 2010 NLCA 27

Date: 201004 22 Docket: 09/75 Citation: 2010 NLCA 27 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HER MAJESTY THE QUEEN APPELLANT AND : YUAN CHU CHENG RESPONDENT Coram: Welsh, Rowe and Harrington, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division 200701T4958 Appeal Heard: March 11, 2010 Judgment Rendered: April 22, 2010 Reasons for Judgment by Rowe, J.A. Concurred in by Welsh and Harrington, JJ.A. Counsel for the Appellant: John Brooks, Q.C. Counsel for the Respondent: Peter Ralph

Rowe, J.A.: [ 1 ] This is an appeal from a decision of a judge of the Trial Division ordering a stay of proceedings against the accused. Along with several others, Mr. Cheng had been charged with two counts of trafficking and conspiracy to traffic in cannabis marijuana as a result of an extensive police investigation, “Operation Bullwinkle”. Lengthy delays (over 30 months) arose principally from problems with disclosure, tardy preparation of the preliminary inquiry transcript and the lack of available court time. [ 2 ] This decision should be read with that of this Court in R. v.

Taylor et al. , 2010 NLCA 26 , of even date. Mr. Cheng was a co- accused. The facts and the analysis set out in Taylor are also applicable to Mr. Cheng. Accordingly, the reasons for decision in Taylor are incorporated by reference in this decision. [ 3 ] The upshot is that for Mr. Cheng (as for his co-accused) there was an unexplained delay in excess of 30 months. This gave rise to inferred prejudice, such that the Trial Division judge made no error when he ordered a stay of the charges against Mr. Cheng (as he did for the co-accused). [ 4 ] I would comment on only one matter that related to Mr.

Cheng and not the co-accused. This was the confusion in the Trial Division judge’s reasons between actual and inferred prejudice. [ 5 ] Actual prejudice is shown by evidence, e.g. an adverse impact on one’s ability to earn a living or one’s family life. Inferred prejudice is not based on evidence, but rather arises from the passage of time. See R. v. Morin 1992 CanLII 89 (SCC) , [1992] 1 S.C.R. 771, paras. 61-64 . [ 6 ] As Cromwell, J. recently stated in R. v. Godin 2009 SCC 26 : The question of prejudice cannot be considered separately from the length of the delay.

As Sopinka J. wrote in Morin , 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.” Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward. Furthermore, there was some evidence of actual prejudice … . (para. 31) [ 7 ] The Trial Division judge stated at para. 38 of his decision: I find as a fact that there is an unexplained delay of 39 months in the case of Mr. Cheng, although I find no special [actual?] prejudice.

I find that a presumed [inferred?] prejudice suffered by Mr. Cheng is even greater than that suffered by Mr. and Mrs. Taylor. This is a reasonable inference from the fact that Mr. Cheng is Chinese, does not speak the English language and his ability to rely on counsel is greater than would be the case of Mr. Taylor, Mr. Pizale or Mr. Garcia [co-accused]. Coming to a foreign country in and of itself is stressful in learning a new language, a new culture and finding work.

As such, it is much more likely to have a presumed [inferred?] prejudice based on unreasonable delay and the overall impact such a delay would have on the outcome of a trial 60 months after charges have been laid. [ 8 ] This mixing up of the categories might well have resulted in the decision being overturned were it not for the fact that the unexplained delay was so great that it is clear a stay should have been ordered on the facts of this case. In other words, as noted in Taylor , the inferred prejudice is sufficient to warrant granting a stay, without need to have regard to actual prejudice.

In a case “closer to the line”, careful consideration of actual prejudice might well be needed. [ 9 ] As a final point, I do not see how the fact that Mr. Cheng is a new Canadian and does not speak English well are relevant factors in assessing inferred prejudice. The Trial Division judge does not seem to have relied on evidence of actual prejudice relating to these factors. Rather, he seems to have posited this to be the case. This he should not have done. CONCLUSION [ 10 ] The appeal is dismissed. _______________________________ M. Rowe, J.A. I Concur: _________________________________ B. G. Welsh, J.A.

I Concur: ________________________________ M. F. Harrington, J.A.