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Cite as: R. v. Legere, 1992 NSCO 7 "
CANADA C. AT. NO. 2690 PROVINCE OF NOVA SCOTIA C. AT. No. 2691 COUNTY OF ANTIGONISH C. AT. NO. 2692 IN THE COUNTY COURT FOR DISTRICT NU~mER SIX BETWEEN: HER MAJESTY THE QUEEN Appellant -and-LAWRENCE LEGERE , Respondent Ronald J. MacDonald, Esq., Solicitor for the Appellant R.E. O'Blenis, Esq., Solicitor for the Respondent 1992, October 1, MacLellan, J.C.C.: This is an appeal filed by the Crown from a decision of Judge Clyde MacDonald, a Judge of the Provincial Court of Nova Scotia, whereby he dismissed the charge against the Respondent Lawrence Legere. The Respondent was charged that he did: "On or about the 14th day of December, 1990, at or near Dunmaglass, Antigonish County, Nova Scotia, did unlawfully commit the offence of hunting moose out of season contrary to Section 5(2), Moose Regulations." ,
-2 The order of dismissal of the said charge was by Judge MacDonald on the 11th Antigonish, Nova Scotia, and a on the 10th day of May, 1991. indicated that the Appellant was seeking an Order setting aside the Order of Dismissal and ordering a In addition to the charge Respondent was charged with under the Wildlife Act: "I. That he did on or December, 1990, at or near Dunmaglass, Antigonish County, Nova Scotia, did unlawfully offence of possessing in a shotgun loaded with baIlor to the Regulations 4(5), Wildlife Regulations. 2. That he did on or December, 1990, at or near Dunmaglass, Antigonish County, Nova Scotia, did unlawfully offence of hunting moose out of season contrary to Section 5(2), Moose Regulations." At the trial of these matters, with the first charge of hunting contrary to Section 5(2) of the Moose Regulations. The evidence at trial consisted of a voir dire hearing to determine the admissibility of evidence seized by the wildlife officers from Mr. of that hearing, Judge MacDonald of evidence seized by the wildlife officers was violation of Section 8 of the Charter of Rights excluded the evidence under Section 24(2) of the Charter. -
made day of April, 1991, in Notice of Appeal was filed The Notice of Appeal new trial. indicated above, the the following two charges about the 14th day of conuni t the a wildlife habitat slug contrary about the 14th day of conuni t the the Court proceeded moose out of season Legere. At the conclusion ruled that the items done in and he
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-3 (., As a result of that ruling Crown did not call any evidence the charge was dismissed for was then agreed by the parties that in light of the Judge's ruling on that charge, and since come up in the other two charges, the Crown would simply accept the ruling in relation to the other charges therefore offered no evidence Accordingly, the charges were prosecution. The Crown have appealed three charges and at the appeal agreed that the same issues were , Court should hear all three matters the parties have agreed that the decision of this Court in regard to the charges against apply to three identical charges Stanley Murray who was a co-accused with charged with three identical charges. by Judge MacDonald on Mr. Legere's the time of trial to Mr. Murray's case and all hi~ charges were also dismissed for want of prosecution. At the hearing of this the Court would hear a Charter the Respondents under Section 11 (b) to the hearing of the merits of the appeal itself. The sequence of events it will be set out in point form: 1. December 14th, 1990 - by the Trial Judge, the on the trial itself and want of prosecution. It the same issue would and on these charges. dismissed for want of from the acquittals on all the parties once again involved and that this together. In fact Mr. Legere will also against one Wallace Mr. Legere and The decision made case was applied at appeal it was agreed that application brought by of the Charter prior is important and therefore charges laid by
-4 wildlife officers. S.O.T.s accused. 2. January 10th, 1991 - entered in Provincial Court. 3. April 11, 1991 - Trial held and all charges dismissed. 4. May 10th, 1~91 ~ Notice and served on Respondents. 5. June 9th, 1992 - Appeal Court docket and is set Charter motion to September 22nd, 1992. 6. September 22nd, 1992 - and briefs submitted by to Section ll(b) application. It is also to be noted that filed by the Crown did not contain the setting down of the appeal the Summary Conviction Appeal Rules No. l(f). It is apparent that the a setting down date in the Notice of Appeal in March of 1991, Judge. Hugh Judge of the County Court of District the time of filing the appeal, issued to both not guilty pleas of Appeal filed comes on County down for hearing on Appeal is heard parties in relation the Notice of Appeal a Chambers date for hearing as required by reason for the absence of was because J. MacPherson retired as Number Six and at which was directed to the
-5 County Court of District Number in that position. In May, 1991, Counsel for Crown inquiring about the procedure on the appeal in light of the absence of a Judge of the County Court of District Number Six. There was no response November 4th, 1991, when Defence Counsel received a letter from the Crown indicating that if the Defence would consent to proceeding by way of written brief, available to hear the appeal. of Mr. Legere, wrote back suggesting that there was already unreasonable delay on the matter would not consent to proceed as He also suggested the Appeal Rules with. In May, 1992, an appointment was Court of District Number Six and this matter " the Court on June 9th, as set out above. At the hearing of this matter, position that the Court should enter a stay of proceedings because the Respondent's right reasonable period of time has been violated. Under Section ll(b) of the Charter: "Every person charged with right (b) to be tried within a reasonable time." In R v. Cusack, (September this Court has already decided ,
Six, there was no Judge Mr. Legere wrote to the from the Crown until a Judge could be Mr. 0 J Blenis, on behalf and indicated that he suggested by the Crown. had not been complied made to the County carne before the Defence took the to be tried within a an offence has the 4th, 1992, unreported) that an appeal time is
-6 to be considered when deciding a Section ll(b) application. The Appellant has also conceded appellate delay may give rise to ll(b) of the Charter. In Cusack, the accused was The appeal was not heard until some 25 months later because of the lack of a Judge to hear the appeal. in that case made a finding that there was violation of Section 11 (b) but was no prejudice suffered by rights under Section ll(b) had not been violated. In R v. Conway, (1989) 49 C.C.C. Court of Canada dealt with a There the Court had to deal with accused was charged with murder was convicted. He successfully appealed that conviction and a new trial was ordered. ended in a mistrial when the a verdict. When the accused came to trial for the third time he made application under at that point there was five years original charge. The Trial proceedings and on final appeal to the Canada, the Court vacated the stay and ordered that the trial proceed. The majority decision in L'Heureux-Dube' J., where in of appellate delay, she said at page 305: "In R v. Rahey, (1987), 39 D.L.R. (4th), [1987] 1 in his factum that a violation of Section convicted and appealed. This Court a prima facie found that because there the accused, his Charter (3d) 289, the Supreme Section 11 (b) application. a situation where the and at his first trial The accused I s second trial jury was unable to reach Section ll(b), because from the date of the Judge ordered a stay of Supreme Court of Conway was written by dealing with the question 33 C.C.C. (3d) 289, S.C.R. 588 (S.C.C.) ,
, -7 there were some comments application of s. 11 (b) such as appeals and retrials purpose of the guaranteed consistent with the views of the United States guarantee extends to delays unduly long appellate process": v. Loud Hawk, 474 U.s. Lamer J. (the Chief Justice that the computation "must end of the saga, all of a reasonable time": Rahey La Forest J. (McIntyre J. that the word "t~ied'.' used in s. I tried I in the sense of clearly encompasses the rendering a decision" (p. argued this appeal on a the above views expressed without deciding that these posi tion adopted by the parties in this appeal, I am disposed to proceed on this basis." " In R v. Askov, (1990) 59 C.C.C. Court once again dealt with delay and set out the factors which a Court should consider in deciding on such an application. Cory J., said in writing the majori ty decision 483) : "From the foregoing review it is think, to give a brief summary of all the factors which should be taken into account in considering whether the length of the delay of been unreasonable: (i) The length of the delay The longer the suggesting that the to further proceedings flows from the right. This is of the Supreme Court that the speedy trial "occasioned by an United States 302 at p. 312 (1986), concurring) stated continue until the which must be wi thin supra, at p. 304. concurring) remarked ll(b) "means I adjudicated I and thus conduct of a judge in 321). The parties footing consistent with in Rahey. Assuming views support the (3d) 449, the Supreme the issue of unreasonable (p. possible, I a trial has delay, the more
-8 difficult it should to excuse it. Very may be such that justified for any reason. (ii) Explanation for the delay (a) Delays attributable to the Crown Delays attributable of the Crown or officers of the Crown will weigh in favour The cases of Rahey examples of such delays. Complex cases which time for preparation, expendi ture of resources officers, and the institutional facilities delays longer than in simple cases. (b) Systemic or institutional delays Delays occasioned resources must weigh against the Crown. Institutional delays considered in light of the comparative, test referred to earlier. of justifying inadequate resulting in systemic always fall upon the may be a transitional period to allow for a temporary period treatment of systemic delay. (c) Delays attributable to the accused Certain actions of justify delays." For example, for adjournment or different counsel. be for a court lengthly delays they cannot be to the action of the accused. and Smith provide require longer a greater by Crown longer use of will justify those acceptable by inadequate should be The burden resources delays will Crown. There of lenient the accused will a request delays to retain
-9 There may, as well, be instances where it can be demonstrated by the Crown that the actions of the accused were undertaken for the purposes of delaying the trial. (iii) Waiver If the accused waives his rights by consenting to or concurring in a delay, this must be taken into account. However, for a waiver to be valid it must be informed, unequivocal and freely given.. The burden of showing that a waiver should be inferred falls upon the Crown. An example of a waiver or concurrence that could be inferred is the consent by counsel for the accused to a fixed date for trial. , (iv) Prejudice to the accused There is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resulting from the passage of time. Where the Crown can demonstrate that there was no prejudice to the accused f lowing from a delay, then such proof may serve to excuse the delay. It is also open to the accused to call evidence to demonstrate actual prejudice to strengthen his position that he has been prejudiced as a result of the delay." In The Queen v. Francis W. MacMaster, a decision ,
-10 of MacDonnell J. C. C. (An Additional Court of District Number Six) the issue of appeal delay was accused had been acquitted in Provincial Crown had appealed. The appeal the lack of availability of a Judge and the appeal decision was not rendered until 13 months after the filing Notice of Appeal. The Court in that case found that this period of time was excessive prejudice suffered by the accused, violation. The Crown argue that the fours to this case because the the same and the reason for the delay here is the same. In MacMaster, the date of the 1990, and the trial was held on January 17th, Notice of Appeal was filed on the appeal was finalized on February was a total period of l6~ months charge to the final decision on appeal and 13 months from the date of the Notice of Appeal to the final decision. In this case, there is hearing of the appeal. There is of Appeal to hearing of the appeal. It is to be noted, however, case the appeal was from a decision of who had heard all the evidence at trial. Appeal Court could and in fact did deal with the merits of the appeal and conf irined the acquittal entered by the Trial Judge. Here the Crown Judge of the County dated February 27th, 1992, dealt with. There the Court and the was delayed because of of a but because there was no there was no Charter MacMaster case is on all time periods are about charge was August 31st, 1991. The January 29th, 1991, and 27th, 1992. There from the date of the 21 months from charge to 16 months from Notice that in the MacMaster the Trial Judge Therefore, the is requesting that a new
, -11 trial take place assuming that subsequent hearing that there is merit in the Crown appeal. Applying the factors set out in Askov to this case, I find as follows: 1. The Length of the Delay Here the delay is now charge and 16 months from the filing Appeal. I find that prima facie these periods are longer than expected for such a case. 2. Waiver of Time Periods , There appears to be no evidence that the Respondent in any way waivered any time periods. 3. Reasons for the Delay It is clear that the only the hearing of this appeal was conduct the appeal hearing. of the Government of Canada must therefore weigh against the Crown. This is a Summary would normally be dealt with or four months. 4. Prejudice to the Accused The Crown take the position that there is no prejudice " the Court finds ata a period of 21 months from of the Notice of reason for the delay in the lack of a, Judge to This failure on the part Conviction matter which within a period of three
-12 to the accused and that the prejudice. In R v. Morin, (1992), Supreme Court of Canada dealt the issue of prejudice Sopinka J. said (p. 22): "Section ll(b) protects impairment of the right of the person, and the answer and def ence resulting delay in bringing criminal conclusion. We have judgments, including the in Smith, supra,' that the right s. 11 (b) is not restricted demonstrate that they desire a of their case by asserting the right to a trial within a reasonable time. finding is that prejudice be inferred from prolonged American concept of this in Baker v. Wingo, the prejudice has been suffered by the accused unless he or she asserts the observation of Dubin C.J.O. many, perhaps most, accused to have an early trial may no doubt be accurate, s. ll(b) was designed to protect the individual, whose rights are not to basis of the desires majority. Accordingly, in prejudice may be inferred the delay. The longer the delay the more likely that such an inference circumstances in which prejudice is not inferred and is not otherwise proved, enforcement of the individual right is seriously undermined." I find in this case that prejudice to the can be inferred. Twenty-one yet his trial has not been Court should not infer 12 C.R. (4th) 1, the with Section ll(b). On the individual from to liberty, security ability to make full from unreasonable trials to a decided in several unanimous judgment protected by to those who speedy resolution Implicit in this to the accused can delay. In the principle, expounded inference is that no right. While the in Bennett that are not anxious be determined on the or practices of' the an individual case, from the length of will be drawn. In the basis for the accused months have gone by and as held. If the Crown appeal
-13 is successful on the meri ts he has his trial. This is MacMaster case where the trial was evidence presented. In that be inferred and since no prejudice was denied the Charter application. like the Cusack case where completed and a conviction had been entered. had had his day in Court and therefore the Court not infer that his rights. were prejudiced because of the delay in the hearing of his appeal. In R v. Rahey, (1987), 33 of 11 months, caused by adjournments was considered excessive and led to a stay of proceedings. In conclusion I would find rights under Section ll(b) have been violated and under the provisions of Section 24(a) of the Charter enter a stay of proceedings. -----~--more time will pass before not a situation like the completed and all the case, no prejudice could proven, the Court This case is also not the trial also had been Mr. Cusack could C.C.C. (3d) 289, a delay by the Trial Judge that the Respondent's I would / ./
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