Her Majesty the Queen Plaintiff v. Ralph Ivan Doncaster Defendant Judge: The Honourable Justice N. M. Scaravelli., 2013 NSSC 325

IN THE SUPREME COURT OF NOVA SCOTIA Citation : R. v. Doncaster, 2013 NSSC 325 Date: 20131004 Docket: CRT 416233 Registry: Truro Between: Her Majesty the Queen Plaintiff v. Ralph Ivan Doncaster Defendant Judge: The Honourable Justice N. M. Scaravelli. Heard: October 4, 2013, in Truro, Nova Scotia Oral Decision: October 10, 2013 Counsel: Craig Botterill, for the Her Majesty the Queen Ralph Ivan Doncaster, Self Represented Orally by the Court: [ 1 ] On April the 26th, 2012, Ralph Ryan Doncaster was arrested and charged on a five count information namely, mischief contrary to Section 430(1) (

c) of the Criminal Code ; fraudulent impersonation contrary to

Section 403 (

c) and three counts of breach of conditions of undertaking. Mr. Doncaster elected trial by judge and jury. A preliminary hearing is scheduled for October 21, 2013. [ 2 ] Mr. Doncaster has made application for stay of proceedings alleging a breach of his right to be tried within a reasonable time pursuant to

Section 11 (

b) of the Canadian Charter of Rights and Freedoms . [ 3 ] The day before the scheduled hearing the court received a fax from Mr. Doncaster requesting that I recuse myself from hearing this application for stay of proceedings and for that matter, any future proceedings involving him. The basis for this request is that I was the presiding judge in two prior matters before the court. Mr.

Doncaster was not successful in those Chamber appearances. [ 4 ] After hearing submissions, I refused to recuse myself and proceeded with the hearing of the application. [ 5 ] I am aware from court records and recent decisions that Mr. Doncaster has made other requests in the past for recusal of judges. In a reported decision, Doncaster v. Chignecto-Central Regional School Board and Attorney General of Nova Scotia, 2013 NSCA 59 , Saunders J. dealt with an application by Mr. Doncaster that he recuse himself on grounds of conflict of interest and reasonable apprehension of bias.

In that case appropriate motion materials were not filed. Although Mr. Doncaster’s request that I recuse is on different grounds, Justice Saunders made the following relevant comment: [15] Mr. Doncaster does not assert that I ought to recuse myself because he lost a case at a previous trial or Chambers appearance over which I presided. It is obvious but perhaps bears repeating that such an assertion would hardly be a basis for recusal in any event. That isn't how things work.

Otherwise disgruntled litigants would invariably demand the recusal of any judge who had found against them, eventually whittling the juridical pool down to zero. The mere fact that a party has lost some motion or suit before a judge (without a jury) does not entitle that litigant to be thereafter free of that judge. That is so both in later suits of a broadly similar nature, and in later motions in the same suit. Broda v. Broda, 2001 ABCA 151 at 16 . [ 6 ] As a footnote to the above Justice Saunders determined that as of May 2nd, 2013 there were a total of 103 cases of ongoing litigation involving Mr. Doncaster.

Mr. Doncaster is an experienced self represented litigant and more than familiar with the process of requesting recusal of judges. Although it appears that some requests have been granted I concluded that there was no basis for recusal in this matter. RECORD OF PROCEEDINGS [ 7 ] Transcripts of proceedings in Provincial Court and Mental Health Court were submitted to the court. Also before the court is a

record of recent proceedings in Supreme Court. Mr. Doncaster filed an Affidavit from his former counsel. He also gave viva voce evidence. April 26, 2012 Mr. Doncaster’s first appearance in Provincial Court with counsel. Crown requested show cause hearing as soon as possible. Mr. Doncaster requested the Judge appoint another Judge to hear the matter. Show cause hearing adjourned to April 30th, 2012. Mr. Doncaster remanded in custody. April 30th, 2012 Bail hearing conducted and bail granted. Defence counsel requests that the matter be transferred to the Mental Health Court.

Mental Health Court appearance set for May 10, 2012. May 10, 2012. Defence counsel appears in Mental Health Court without Mr. Doncaster. Defence counsel advises that Mr. Doncaster has yet to sign appropriate documentation and advises the court that there is some debate as to whether Mr. Doncaster would qualify for the program. Request made to return on June 28th, 2012. June 28, 2012 Defence counsel appears in Mental Health Court. Mr. Doncaster does not appear. Request made to put the matter over to July 26, 2012. July 26, 2012 Mr. Doncaster appears in Mental Health Court with new counsel.

Defence counsel advise that screening process has yet to be completed and requests time to review crown disclosure. Matter adjourned to August 16, 2012. August 16, 2012 Mr. Doncaster appears in Mental Health Court with counsel. Defence counsel requests adjournment for Mr. Doncaster to complete mental health screening for eligibility. Requests adjournment to September 6th, 2012. September 6, 2012 Mr. Doncaster appears in Mental Health Court with counsel. Defence counsel advise, that as a result of prerequisite conditions to participation in Mental Health Court, Mr.

Doncaster elects to have the matter return to Provincial Court. Matter set over to Provincial Court to September 10, 2012. September 10, 2012 Mr. Doncaster and crown appear in Provincial Court. Mr. Doncaster elects trial by Judge and Jury. A preliminary hearing is scheduled for June 13, 2013. Mr. Doncaster agrees to date for preliminary hearing. May 27, 2013 Mr. Doncaster and crown appear in Provincial Court as a result of request from Mr. Doncaster for disclosure of police disciplinary records. That is, a “McNeil disclosure”.

The court advises parties that setting hearing date for McNeil disclosure application would necessitate adjourning the preliminary inquiry scheduled for June 13, 2013 due to time constraints. Preliminary hearing rescheduled to “earliest available date”, October 21, 2013. Court schedules June 10, 2013 for appearances of interested parties on McNeil disclosure application. June 10, 2013 Mr. Doncaster, crown and counsel for police appear for McNeil disclosure application in Provincial Court. Court moves application to Supreme Court. Mr. Doncaster indicates he will be making a french language election pursuant to

Section 530 of the Criminal Code . This application also to be heard in Supreme Court. July 29, 2013 Crown served with a Charter motion for stay of proceedings filed by Mr. Doncaster dated June 3, 2013. September 9, 2013 Mr. Doncaster and crown appear in Supreme Court. Hearing conducted on McNeil application and application for french language. Both applications dismissed. The application for Stay of Proceedings adjourned to October 4, 2013. CHARTER DELAY APPLICATIONS [ 8 ] The Supreme Court of Canada in R. vs. Morin [1992] 1SCR 1971 sets out the courts approach in assessing whether delay

occurring after a charge is laid amounts to an infringement of a right to be tried within a reasonable time pursuant to

Section 11 (

b) of the Charter . The court is required to assess the following factors: 1. The length of the delay. 2. Waiver of time periods. 3. Reason for the delays, including; (

a) Inherent time delays of the case. (

b) Actions of the accused. (

c) Actions of the crown. (

d) Limits on institutional resources. (

e) Other reasons for delay 4. Prejudice to the accused. [ 9 ] An inquiry as to whether there would be an unreasonable delay should only be undertaken where the elapsed time, normally from the date from which the information is sworn to the end of trail, is of sufficient length to raise the issue of reasonableness. The length of the delay is reduced by expressed or implied waivers by the accused of his rights under

Section 11 (b). [ 10 ] In R. vs. Morin, the Supreme Court of Canada set out , as rough guidelines only, a period of eight to ten months in Provincial Court and six to eight months after committal for a total of fourteen to eighteen months. As indicated, a preliminary hearing is yet to be held in this matter and is scheduled October 21, 2013. The elapsed time from swearing of the information to preliminary hearing is 18 months.

Obviously, committal for trial has yet to occur. [ 11 ] The crown acknowledges the period of delay in the lower court raises the issue of reasonableness necessitating an inquiry. [ 12 ] The period from April 26, 2012 to September 10, 2012 is attributable to Mr. Doncaster. He made the choice to move to Mental Health Court where adjournments occurred at his request. Mr. Doncaster ultimately chose not to agree to preconditions for proceeding through Mental Health Court and the matter was returned to Provincial Court, September 10, 2012. On that date Mr.

Doncaster elects judge and jury and the preliminary hearing is scheduled for June 13, 2013 with Mr. Doncaster’s consent. [ 13 ] The nine month period from September 10, 2012 to the scheduled preliminary of June 13, 2013 is systemic delay attributable to the crown. [ 14 ] The delay from June 13, 2013 to rescheduled preliminary date of October 21, 2013 is attributable to Mr. Doncaster. The postponement was due to Mr. Doncaster’s late applications for McNeil disclosure and french language which were scheduled and dealt with in Supreme Court on September the 9, 2013.

The rescheduled date of October 21, 2013 was the earliest available date. [ 15 ] The fact that eighteen months will have elapsed from date of information to scheduled preliminary hearing does not, of itself, constitute a breach of

Section 11 (

b) Charter Rights. Delays attributable to Mr. Doncaster were the result of legitimate decisions as to how he wished to conduct his case. The preliminary hearing scheduled on September 10, 2012 for June 13, 2013 was not an unreasonable delay. Earliest available dates were provided throughout the proceedings. Under these circumstances there can be no prejudice to Mr. Doncaster. [ 16 ] Accordingly, I do not find there has been any unreasonable delay to date and I dismiss Mr. Doncaster’s application for stay of proceedings.