Cite as: R. v. Sabean, 1991 NSCO 4 CANADA PROVINCE OF NOVA SCOTIA COUNTY OF HALIFAX 1M THE COUMTY OP DISTRICT HUMBER 'l"IfO HER MAJESTY THE QUEEN - DANIEL LAWRENCE SABEAN David S. Walker, Q.C., Counsel Lawrence Sabean. C. Lloyd Tancock, Esq., Counsel for Her Majesty the Queen. 1991, February 28th, is an application by the the canadian Charter of Rights and Preedans, alleging that hi s ri ght to a trial within breached pursuant to Section to obtain such remedy as and just in the circumstances. On such an application, which is most appropriately made to the trial jUdge commencement of the trial, the onus is on the party asserting a breach of a Charter right to establish on a preponderance of evidence. It is necessary to set forth the relevant dates and circumstances in this matter: C. BW. No. 8266 COURT and for the Accused, Daniel Pa1meter, C.J.C.C.:- This accused under Section 24 (l) of a reasonable time has been 11(b) of the Charter, and the Court considers appropriate either prior to or at the such a breach
- 2 1. November 23, 1989 Date of alleged offence. Mr. Sabean given Appearance Notice on that date alleging Criminal Code Section 253{b) (breathalyzer) offence and Section 253 (a ) ( impaired driving) offence; 2. November 29, 1989 Information laid and Summons issued alleging breathalyzer offence and impaired driving causing death; 3. January 10, 1990 Mr. Sabean appears in Court, elects trial by Judge without Jury, Preliminary Inquiry set for April 4, 1990; 4. April 4 & 6, 1990 Preliminary Inquiry held; 5. April 6, 1990 Mr. Sabean was committed to stand trial in County Court on June 19, 1990 on charge of impaired driving causing bodily harm under Section 255(2) of the Criminal Code. 6. May 8, 1990 Indictment signed and filed; 7. May 11, 1990 Letter sent to Crown and defence by Deputy Clerk of County Court indicating trial dates would be November 13 and 14, 1990; 8. May 15, 1990 Defence counsel wrote Deputy Clerk confirming November 13 and 14, 1990 were satisfactory to him; 9. August 1, 1990 County Court Judge for District Number Two appointed a Justice of the Supreme Court of Nova Scotia, Appeal Division. No replacement County Court Judge appointed.
- 3 10. November 6, 1990 Mr. Sabean and defence counsel appeared before myself sitting as an additional judge for District Number Two. Over defence objections matter was rescheduled to December 11, 1990 for the selection of a new trial date, as there were no jUdges available to hear the matter. Defence counsel indicated that Mr. Sabean was ready to go to trial on November 13 and 14, 1990 and that he objected to the postponement of the trial and indicated he was reserving the rights of the accused under the Charter. 11. November 28, 1990 Judge Hiram Carver appointed Judge of the County Court for District Number Two. 12. December 7, 1990 Judge Carver sworn in as County Court Judge for District Number Two. 13. December 11, 1990 Mr. Sabean appeared before Judge Carver. He agreed to Judge Carver trying case although he had presided at the Preliminary Inquiry. Trial was scheduled for March 5 and 6, 1991, at the Court House, Lunenburg, Nova Scotia. (It was subsequently rescheduled to Liverpool, Nova Scotia). Defence counsel objected to the adjournment and inf ormed Judge Carver he would, at trial, be making representations under, particularly, Section ll(b) of the Charter of Rights.
The first question trial will be heard "within a indicate a period of over of the issuance of the Appearance 1989) to the date set for trial eleven months from the date of committal for trial (April 6, 1990) to the date set for trial. In the case of C.C.C. (3d) 572, Lamer J., as he then was, Court of Canada, referred to his decision in Mills v. The Queen (1986) 26 C.C.C. (3d), that the time frame in computing trial within a time generally runs only from the moment a person is charged. Although, in this case, I with the time from committal trial, I must consider all of the time involved, including from the date the accused was given his Appearance Notice. In the case of (3d) 449 (S.C.C), the Supreme four significant factors to whether there has been unreasonable delay, as follows: 1. The length of the delay: 2. Explanation for the delay: 3. Waiver: and 4. Prejudice to the accused. - 4 Judge Carver asked that a Brief be submitted ahead of time. to be asked is whether the reasonable time". The dates fifteen months from the date Notice (November 23, (March 5, 1991) and some carter v. The Queen (1986) 26 of the Supreme 481 (S.C.C.) and indicated reasonable am particularly concerned for trial to the end of the R. v. Askov (1990), 59 C.C.C. Court of Canada sets forth be considered in determining
In Askov, Mr. Justice decision in speaking of length of the delay at p. 477 states: "It is clear that the longer the delay, the more difficult it a court to excuse it. a threshold requirement as in the United States, but rather is balanced along with the others. very lengthy delays they cannot be justified for any reason." Three prior cases of the Supreme Court of Canada, deal t wi th unreasonable delay, Rahey v. The Queen (1987) Smith (1989) 52 C.C.C (3d) cases Cory, J., in Askov at p. 484, states: "It is interesting delay at issue in Mills was in Rahey 11 months, year. Although in Conway is comparable thi s case , it mus t in that case the attributable to the actions of Conway." Stays of proceedings were of Canada in Mills, Rahey and Smith. At p. 490 of Askov, Mr. Justice Cory states: "Making a very more than doubling the period to make the special circumstances in Peel would indicate a period of some six to committal and trial to be the outside reasonable." - s -
Corey in the majority should be for This is not a factor to be However, may be such that namely Mills v. R., supra, 33 C.C.C. Dd) 289 and R. v. 97. Referring to these three to note that the 19 months, and in s.ith one the period of delay to that of be remembered that delay was directly granted by the Supreme Court rough comparison and longest waiting every allowance for of delay in a range eight months between might be deemed limit of what is
- In referring to Peel, Mr. Justice Cory refers to the District of Peel in the Province of Ontario which had special problems relating to hearing caseload court resources. Counsel for the makes the comment that in a district which was categorized as being one of the worst between committal and trial as of Canada was eight months, time elapsed would be some eleven months. In Askov Mr. Justice surveys done involving other parts of Canada limits between committal and He seems to suggest that the time of eight months between committal and trial is the outside limit anywhere in Canada. On the basis of the submissions would surely be the outside Two. I would be almost inclined to think District a range between four months be the outside limit. Based on the Askov decision, eleven months in this case would appear to indicate that the trial will not be held "within a reasonable time", as contemplated by Section ll(b) of the Charter. I must now consider the explanation for the delay and whether that explanation is a with counsel for the accused that the reason for the day was the failure to expeditiously judge for District Number period of over five months 6 and lack of facilities and accused in referring to Askov in Canada, the outside limit set by the Supreme Court and in the case before me the Cory refers to statistical and the time trial in other provinces. made to me eight months limited in District Number that in this and six months would reasonable one. I agree appoint a replacement Two. As a matter of fact, a elapsed between the time of
the announcement of the appointment the Appeal Division (which of July, 1990) to the date of judge in December. This in effect constituted a resources. In R. v. Mills, states: n In an ideal be no delays in to trial and difficulties in securing fully adequate funding, personnel the administration of As we do not live some allowance must be made for limited institutional resources. It is imperative, in recognizing the criterion we do current and future from inadequate institutional resources. For the criterion resources, more than any other, threatens to become a source for prolonged and There must, therefore, to which inadequate used to excuse interest of the individual." At p. 554 Lamer, J., also states: "In many ways, systemic delay poses significant challenges interpretation and Charter. " - 7 of Judge Freeman to was announced the first week the swearing-in of the new lack of institutional supra, Lamer, J., at p. 550 world there would bringing an accused there would be no and facilities for criminal justice. in such a world, however, that need for such a not simply legitimize delays resulting of institutional of justification unacceptable delay. be some limit resources can be delay and impair the the problem of one of the first to this Court's application of the
And at p. 555: "There can be the constitutional within a reasonable to the status quo; system for the administration of criminal justice which must constitutional requirements Charter. " In Askov at p. 478, Court of Canada states: "The right guaranteed is of such fundamental the individual and to the community lack of institutional be employed to unreasonable postponement of trials. However, the lack facili ties can never be used as a basis for rendering the meaningless." I do not find the failure to appoint a replacement jUdge for District Number months a reasonable or satisfactory delay. Had a judge been of date of Judge Freeman's announcement thereof had been trial could have gone ahead It seems to me that once it is unreasonable delay in bringing is some burden on the Crown a satisfactory explanation. - 8 no assumption that right to be tried time must conform rather, it is the conform to the of the the majority of the Supreme by s. 11 (b) importance to of such signif icance as a whole that the resources cannot justify a continuing of institutional s. ll(b) guarantee Two for a period of some five explanation for the appointed within three months elevation, although the made a month previous, the as scheduled in November. shown that there was an the matter to trial there to show that the delay has In this case the Crown has
not done so. I make this comment fully acknowledging that the accused in alleging a the ultimate or legal burden the decision of Sopinka, J • , p. 106-107: "I accept that the ultimate or legal throughout. A case will only be decided by reference to if the court cannot same to a determinate conclusion on the it. Although the ultimate or legal or evidentiary burden evidence or argument may shift depending on the circumstances For example, a long occasioned by a for an adjournment call for an explanation fran the as to the necessity for the adjournment. In the absence of the court would that the delay would be appropriate Crown having a secondary or evidentiary burden under In all cases, the court should be mindful that it is seldom necessary or desirable to decide this question of burden of proof preferable to evaluate the reasonableness of the over-all lapse regard to the factors referred to above. I believe that this flexibili ty referred to by in her reasons quoted above." I must also consider waiver by the accused in regard to the do not find a waiver in this case. accused by his counsel agreed to trial dates - 9 breach of a Charter right has of proof throughout. See in R. v. Smith, supra, at the accused has burden of proof the burden of proof facts presented to accused may have the burden, a secondary of putting forth of each case. period of delay request of the Crown would ordinarily Crown such an explanation, be entitled to infer is unjustified. It to speak of the these circumstances. on the basis and that it is of time, having is the type of my colleague whether there has been a time periods. I In May of 1990 the on November
13th and 14th, 1990 some six months this would be the outside limit for expiry of time between committal and trial in this District unless otherwise agreed to by counsel. On November 6th, 1990 the accused, through counsel, objected to any adjournment his rights to make application same thing occurred on December 11th, was ad journed again and was set for trial commencing March 5th, 1991 at Liverpool. L' Heureux Dube, Canada in the case of R. v. 289, states at pp. 306 - 307: "Waiver involves of whether any delays caused or consented charged. Such delays not weigh meaningfully the unreasonableness time period and excluded from assessing reasonableness': supra, at p. 305, effect, when delays are caused, requested or consented to by generally be assumed benefi ts from the resulting protraction of the proceedings, although the ultimate decision will of made having regard circumstances in This is not to will necessarily contributing to the proceedings. right to make a full answer and defence and, to thi send, to choose the manner in which the exercise -10 away. In my opinion and indicated he was reserving under the Charter. The 1990 when the matter J • , of the Supreme Court of Conway (1989) 49 C.C.C. (3d) a consideration were requested, to by the person as a rule do in favour of of the over-all 'should normally be consideration when Rabey, per Lamer J. In an accused, it may that the accused course have to be to all the each particular case. say that an accused be at fault for the protraction of An accused has the this right in
- accordance with the that matter will the Crown or the a claim under The Crown is prosecutorial discretion fi t, provided that it does not the prosecution in We are not here but with the reasonableness over-all delays in bringing to justice." I find the actions of the accused in this matter did not constitute any waiver. The last matter is prejudice to the accused. In my opinion unreasonable delay in itself infers prejudice to an accused. indicates that there is a an accused's security interests from being charged. At page 543 he states: "The proper approach, is to recognize that prejudice underlies the right, while same time that actual need not, indeed, to establishing a violation of s. ll(b). This approach two propositions. is part of the rationale for the right and is assured by of s. ll(b) Consequently, there irrebuttable presumption the moment of the suffers a prejudice aimed at limiting, and that the prejudice increases over time. 11 law. Nei ther for blame be imputed to judicial system when s. ll(b) succeeds. free to use its as it seems conduct an abusive manner. concerned with fault of the an accused to be considered under Askov Lamer, J., in Mills, supra, prejudice, or an impairment of which necessarily arises in my view, recognizing at the proven prejudice is not, relevant is predicated upon First, prejudice the very presence in the Charter. exists an that, as of charge, the accused the guarantee is
- Secondly, actual therefore, irrelevant unreasonable delay. will, however, determination of as will be Prejudice to the of the person, the ascertainable and must be kept to presumption of respected." Apparently, the Court held prove actual prejudice when was unreasonable. In Askov, Cory, J., at pp. 482-483 states: "The different positions taken by members of the court with regard to the prejudice suffered by an of a delayed trial Mills and Rahey. Perhaps the differences can be resolved should be inferred and reasonable delay the accused. As in Smith, supra, at p. Ill: 'Having found is substantially can be justified acceptable basis, be difficult indeed to conclude that the appellant's rights have not because the suffered no this particular inference of strong that it would be difficult to disagree with 12 prejudice is, when determining Actual prejudice be relevant to a appropriate relief hereafter explained. liberty and security former objectively, the latter presumed, a minimum if the innocence is to be that it was not necessary to considering whether the delay accused as a result are set forth in in this manner. It that a very long has prejudiced Sopinka J. put it that the delay longer than on any it would s. ll(b) been violated appellant has prejudice. In context, the prejudice is so the view of
- Lamer J. in that it irrebuttable. Nevertheless, the Crown to attempt that the accused has not been prejudiced. This would preserve the societal interest by providing that a trial would proceed in those cases where delay no resul ting suffered by the existence of the inference of prejudice drawn from a very long delay will safely preserve the pre-eminent individual. Obviously, of overcoming the necessity become the passage of time will become irrebuttable. less, the factual in Conway serves extremely lengthy prejudice the accused. most situations, out in Smith, be 'virtually irrebuttable.' Furthermore, the by Sopinka J. in the Smith case whereby accused persons who additional form permitted to adduce evidence of prejudice on their own initiative strengthen their a remedy under s. is consistent with of protecting the under s. ll(b)." Again, there seems to the Crown to attempt to has not been prejudice. I have heard submissions by counsel for the Crown and have corne Crown has not rebutted the the accused by virtue of unreasonable delay. 13 Mills and Rahey is virtually it will be open to to demonstrate despite a long damage had been accused. Yet, the right of the the difficulty inference will of more difficult with and at some point None the situation presented as an example of an delay which did not However, in as Sopinka J. pointed the presumption will option left open have suffered some of prejudice are in order to position in seeking 24 (1 ) of the Charter the primary concern individual's right to be some shift of burden demonstrate that the accused to the conclusion that the presumption of prejudice to what I have found to be an
- I do not find it necessary adduce evidence to establish to be successful in making a The headnote summary of the Askov, states at pp. 452-453: "0ne of the elements by means he may try to prove the unreasonableness of the delay in bringing is by showing that he has been prejudiced by the delay, not everyone suffers being charged, but is directly attributable of time. It cannot an unreasonable delay but that this inference may be by the Crown. prejudice is not of a s. ll{b) the accused is factors that need assessing a claim The absence of necessarily fatal to such a claim." In Rahey, supra, in the head note at p. 292, as follows: "There is, however, that the accused prove actual prejudice to his defence in that the delay he faced was unreasonable. While prejudice to accused to a fair trial justify the claim cannot be regarded it." In view of the foregoing in coming to the conclusion that the right of the accused 14 for the accused to active prejudice in order Charter claim under s. ll{b). judgment of Wilson, J., in of which him to trial the prejudice that as a consequence of the prejudice that to the lapse be inferred that causes prejudice overcome On the other hand, an essential element claim. Prejudice to just one of several to be weighed in under s. 11 (b) . prejudice is not LaForest, J., is summarized no requirement order to establish the right of the may help to under s. ll{b) it as essential to I have no difficulty
- to a trial wi thin a reasonable of the Charter has been breached. grant the application under impose the appropriate remedy, to be a stay of proceedings. 15 time pursuant to s. 11 (b) I will, accordingly, s. 24(1) of the Charter and which I find in this case n Additional Judge of the County Court for District Number Two
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