, Cite as: R. v. MacPherson, 1992 NSCO 42 PROVINCE OF NOVA SCOTIA C. G. No. 1378 GUYSBOROUGli IN THE COUNTY COURT OF DISTRICT NUMBER SIX BETWEEN: CllARLES ALEXANDER MACPliERSON Appellant -and-HER MAJESTY THE QUEEN (., Respondent Daniel J. MacIsaac, Esq., Solicitor for the Appellant William F. Murphy, Q.C., Solicitor for the Respondent 1992, September 10, MacLellan, J.C.C.: 'Llhis is an appeal by Charles Alexander MacPherson from his conviction in Provincial Court at Guysborough, Nova Scotia, on a charge under Section 253(b) of the Criminal Code. The Appellant was charged that he did: "On or about the 23rd day of June, 1990 did
-2 having consumed alcohol that the concentration exceeded eighty milligrams hundred millilitres of motor vehicle contrary the Criminal Code." On August 29th, 1990, his trial was time he was found guilty of ordered to pay a fine and on filed an appeal from the conviction, County Court of District Number Six. This matter came on before this Court on July 17th, 1992, at· which time the Court received briefs. 'fhe decision rendered. The only issue advanced his rights under Section 11 (b) of Rights and Freedoms have therefore his conviction should of proceedings entered. Section ll(b) of the Charter reads: "Everyone charged with an offence has the right; (b) to be tried within a reasonable time." The Appellant contends that because his appeal conviction was not dealt with in he is entitled to a remedy under Charter. The Crown, on the other in such a quantity thereof in his blood of alcohol in one blood, did operate a to Section 253(b) of held at which the said charge. He was September 7th, 1990, he directed to the heard both parties and was reserved and is now by the Appellant ~s that of the Canadian Charter been violated and that be quashed and a stay from a timely manner, that Section 24 (1) of the hand, take the position
, -3 that the burden is on the Appellant Charter rights have been violated si tting as an Appeal Court has relief under the Charter. The Appellant was charged his trial was concluded on August 29th, entered on September 7th, 1990, 17th, 1992, because in March, 1991, retired as Judge of the County Six and no replacement was made until May, The Appellant suggests that the time from the filing of the the hearing of the appeal, a period of 22 months. The Crown contends that this period of not be considered because the Appellant his trial and since he instituted "
cannot use this to support his rights have been violated. This Court has recently dealt in The Queen v. Gary Cusack (decision rendered September 4th, 1992) wherein I held that be considered on a Section ll(b) application. The Crown had also contended time was to be considered it was when the Crown was the Appellant. I held that the appeal time regardless of which party instituted decision was based on a number Rahey, (1987) 78 N.S.R. (2d) 49 C.C.c. (3d) 289; R v. Ushkowski, to show that his and that this Court no jurisdiction to grant on June 23rd, 1990, and 1990. His appeal was delayed until July Judge Hugh MacPherson Court of District Number 1992. this Court consider appeal to the date of time should has already had the appeal process claim that his Charter with the same issue an appeal time was to that if the appeal only to be considered In the Cusack case was to be considered the appeal. That of cases including R v. 183; R v. Conway, (1989) (1991) 67 C.C.C.
-4 (3d) 420; and The Queen v. Francis ~lacHaster of MacDonnell, J. dated February 27th, These cases, however, do not resolve the main issue being whether in considering Appellant has shown that his violated. Here, it is clear that 1990 to July, 1992, was excessive great extent by the lack of Court Judge before District accepted by the Crown that there was by the Appellant. Normally, given an appeal 1990, that appeal would be heard part of 1991' considering restraints on the preparation of 'l'herefore, it would appear that would be a period of something over a year. 'rhe Appellant has the burden Charter rights have been violated. application once it is shown that it was unusual delay, the Court must consider the other factors of waiver, explanation for the the accused. In this case, presented by the Appellant that he has suffered prejudice. The suggestion was that prejudice from the unusual delay. In R v. Morin, (March 26th, Supreme Court of Canada dealt unreasonable delay and found (decision 1992, unreported). the times involved, the Charter rights have been the delay from September, and was caused to a an appointment of a County Number Six. It is also no waiver of rights filed in September of sometime in the first the normal inherent time the factum and so on. the unusual time delay of proving that his On a Section ll(b) a prima facie delay, and prejudice to there was no evidence should be inferred 1992, unreported), the with the issue of that the longer the delay
-5 the more likely that an inference drawn. It also held that where an inference of prejudice cannot be drawn and is not enforcement of the individual's ll(b) were seriously undermined. was a period of 14 months from to the date of the trial and unreasonable. In Morin, McLachlin, J. that must be done in deciding a Section ll(b) application. She said at page 29:- , UAn accused person may prejudice. as a consequence the expected and normal. may welcome the delay. an accused person can suffer because of the delay. Where the accused suffers little or no prejudice, it is consistently important interest those charged with criminal outweighs the accused's and in obtaining a stay of proceedings of delay, because the consequences of the delay are not great. On the other accused has suffered clear cannot be otherwise remedied, tip in the accused's favour require a stay. How is prejudice sufficient important public interest charged with criminal offences be established? The matter a question of "fact, circumstances of the case. out, the length of delay circumstances may not support of sufficient prejudice to of prejudice can be otherwise proven, the rights under Section In that case, the delay the date of the offence was held not to be discussed the balancing suffer little or no of a delay beyond Indeed, an accused On the other hand, great prejudice clear that the of bringing offences to trial society's interest on account hand, where the prejudice which the balance may and justice may to outweigh the in bringing those to trial to is essentially dependent on the As Sopinka J. points itself in many the inference justify a stay of
-6 proceedings. It is well persons may seek a delay trial and to use the "protective shield" of s. ll(b} as an "offensive weapon", as Cory J. put it in R v. Askov, 2 S.C.R. 1199, at p. 1222. as to prejudice can be of the delay, or where inference is the other have to call evidence displace the strong public interest in bringing those charged with an offence to trial. In the case at bar, the meet the first hurdle of establishing facie case. The delay should have been, given the nature of the charge and the time reasonably required for processing it. But she failed to of her interest in a ancilliary public interest outweighed the public her, a person charged with a to trial. The record that her interests in security to a fair trial were adversely short, the delay appears to have been of little consequence. In the absence of other evidence to establish the need for interest in proceeding to trial prevail. The trial judge was right to dismiss her application for stay of proceedings." In this case, while it considerable delay in hearing lack of a Judge, it is to be noted that since the trial has already been held, the to the Appellant becomes more required for the Court. to infer A Court dealing with delay prior to trial must the direct impact delay will known that accused [1990] Where no inference drawn from the length the most reasonable way, the accused may if he or she is to accused was able to a prima was longer than it show that protection prompt trial or the in prompt justice interest in bringing criminal offence, permits no inference or the right affected. In a stay, the public was bound to appears that there was the appeal because of the task of showing prejudice difficult and the time prejudice is longer. consider have on the evidence to
-7 be presented at trial. This would include the affect of delay on the memories and availability of witnesses. Here, there was no evidence that the Appellant was in any way prejudiced by the delay in the hearing of the appeal. I find that it cannot be inferred that he suffered prejudice, therefore, his application must fail. Accordingly, I would dismiss the appeal and confirm the conviction, sentence and prohibition entered by the trial judge. .--'-._--- - -- c: Judge Douglas L. HacLellan County Court Judge District( .N umber Six
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