nan Information 24157353 2004 SKPC 101 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT LA LOCHE, SASKATCHEWAN Between: HER MAJESTY THE QUEEN -and- Paddy Daniel Lemaigre William Campbell Counsel for the Crown George Thurlow Counsel for the Accused September 9, 2004 E. Kalenith, P.C.J. JUDGMENT INTRODUCTION [1] Paddy Lemaigre applies for relief pursuant to The Canadian Charter of Rights and Freedoms (“the Charter”) on the basis of post-charge delay denying him the right to have his trial in a reasonable time. I find that there was no Charter breach and I dismiss the application. My reasons follow. [2] The accused is charged that on or about July 3, 2003, at La Loche, Saskatchewan, he did: (a) commit an assault on [K.J.], contrary to section 266 of the Criminal Code; (b) in committing an assault on [K.J.] threaten to use weapon, to wit: knife, contrary to section 267(a) of the Criminal Code; and (c) commit mischief by wilfully destroying property to wit: lamp of value not exceeding five thousand dollars, the property of [K.J.], contrary to section 430(4) of the Criminal Code. HISTORY OF PROCEEDINGS [3] The following dates are relevant to this application: (a) July 4, 2003 the accused was arrested, released on an undertaking with conditions, and given Promise to Appear in court in La Loche on July 31, 2003; (b) July 14, 2003 the Information was sworn charging the accused; (c) July 31, 2003 the accused first appeared in court. The Information was adjourned at the request of the accused until October 6, 2003 due to the lack of Legal Aid resources to conduct an earlier interview; (d) October 6, 2003 adjourned at the request of the court until November 3, 2003 to see if the parties could come to resolution; (e) November 3, 2003 not guilty plea was entered and trial date was set for May 6, 2004; (f) May 6, 2004 the trial was adjourned on application by the Crown due to the non-attendance of the complainant and new trial date was set for October 7, 2004. [4] The relevant time periods are: (a) Date of release on the undertaking to the date of first appearance twenty-seven days; (b) From July 31, 2003 to October 6, 2003 sixty-seven days adjournment at the request of the accused; (c) From October 6, 2003 to November 3, 2003, twenty-nine days adjournment at the request of the court; (d) From November 3, 2003 to May 6, 2004 one hundred and eighty-five days time from plea to the earliest trial date; (e) From May 6, 2004 to October 7, 2004 five months time from first trial date to second trial date; (f) Date of release on undertaking to second trial date fifteen months, three days. [5] In deciding whether the right to trial within reasonable time, as guaranteed by section 11(b) of the Charter, has been infringed consider the factors outlined by the Supreme Court of Canada in R. v. Morin (1992) 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1(“Morin”): (a) Length of delay; (b) Waiver of time period; (c) Reasons for the delay, including: (i) inherent time requirements; (ii) actions of the accused; (iii) actions of the Crown; (iv) limitations on institutional resources; (v) other reasons for the delay; (d) Prejudice to the accused. [6] The onus is on the accused to prove the breach on balance of probabilities. Length of delay [7] In Morin, the Supreme Court of Canada proposed that as general guideline delay of eight to ten months in Provincial Court would be acceptable. find this to be consistent with the reality in La Loche, where trials are set within six months of entering plea. [8] The length of delay in this case from the date of release on an undertaking to the date of trial is approximately fifteen months. This is not a complicated case. The Crown anticipated calling three witnesses. The length of delay is sufficient to warrant an inquiry into the reasons for the delay. [9] The accused requested the adjournment from July 31, 2003 to October 6, 2003 to seek counsel. The total delay attributable to the accused is sixty-seven days or approximately two months. The remaining delay of thirteen months occurred for the reasons indicated below. Inherent time requirements [10] Arranging for the accused’s appearance in court, and some time between plea and trial, lead to some delay. deduct this seven month period from the delay being considered. Actions of the accused [11] The accused did not contribute to the remaining delay. He appeared on all court dates and was diligent about having the charge set for trial. Actions of the Crown [12] The remaining delay of six months is either attributable to the Crown or caused by factors outside the control of the accused. The delay of three months between the first and second trial dates consider as attributable to the Crown, it being necessary because of the non-attendance of the complainant who was under subpoena to attend. Limitations on institutional resources [13] There is no evidence that any lack of institutional resources caused any delays in this case. Other reasons for delay [14] delay of one month was caused as result of an adjournment by the Court to enable the parties to attempt to come to resolution. attribute this to factor outside the control of the accused. [15] As indicated in Morin, prejudice can be inferred from prolonged delay. [16] The accused argues that he suffered actual prejudice because the undertaking he was subject to prevents him from contacting the complainant and it is therefore argued that he was prevented from having access to his children in her care. The Crown argues, and I agree, that as there is no evidence of any efforts by the accused to overcome this I should find that this prejudice is something that the accused could overcome. also agree with the Crown’s argument that the possible difficulty in having access to the children is normal consequence of being charged with an offence of domestic violence. [17] The accused also argues that the restrictive condition in the undertaking which prohibits him from drinking alcohol has caused him actual prejudice because he has been charged with, pleaded guilty to, and is to be sentenced for, three intervening offences of breaching his undertaking which he attributes to the delay. These offences occurred on July 5, 2003, July 23, 2003, and January 29, 2004. These offences all occurred within what could be considered a reasonable time for the matter proceeding to trial, and there is no evidence about how this causes the accused an undue hardship which is different from that faced by other accused charged with similar offences. I find that in this case the accused has not suffered actual prejudice and that the conditions of release he is subject to are not so onerous as to result in any significant prejudice to him or to lead me to infer that he has suffered prejudice over and above that suffered by others charged with similar offences. [18] Given the finding of no actual or inferred prejudice, the question remains as to whether the prejudice to the accused in the delay is such as to outweigh the prejudice to society that would result if the accused was not to face trial for this charge. [19] This is a charge which involves an offence of domestic violence and is so serious that it carries the heightened public interest that exists in offences of violence (see R. v. Robillard [2000] S.J. No. 345). The six-month delay which includes that time attributable to the accused and that time caused by the court is not so long as to lead to an inference of prejudice to the accused nor does any potential prejudice caused by the delay outweigh the public interest in having the accused face trial on these charges. [20] The accused also argues that basis for finding charter breach in this case is founded on the likelihood that if this trial proceeds on the scheduled date then some of the other accused with trials set that date may not be able to have their trial heard and that this would result in breach of their right to be tried within reasonable time. find that other accused have no standing in this application and that it is only this accused’s rights which are appropriately considered in this application. [21] The application is therefore denied. E.Kalenith, P.C.J..
The accused applies for relief pursuant to the Charter of Rights on the basis of post-charge delay denying him the right to have his trial in a reasonable time. The accused was charged on July 3, 2003 with common assault contrary to s. 266 of the Criminal Code, threatening to use weapon contrary to s. 267(a) of the Code, and destroying property of value less than $5,000 contrary to s. 430(4) of the Code. On July 31, 2003, the accused first appeared in court. The information was adjourned until October 6, 2003 due to lack of Legal Aid resources. On November 3, 2003, not guilty plea was entered and trial was set for May 6, 2004. On May 6, 2004, the trial was adjourned on application by the Crown due to the non-attendance of the complainant and new trial date was set for October 7, 2004. HELD: There was no Charter breach and the application is dismissed. 1) The length of delay from the date of release to the date of trial is approximately 15 months. This is not a complicated case and the delay warrants an inquiry. 2) The Court did not accept the accused's submission that he suffered actual prejudice because the undertaking prevented him from accessing his children. There were no efforts by the accused to overcome this. 3) The restrictive condition in the undertakings prohibiting him from drinking alcohol has resulted in him being charged with and pleading guilty to offences of breaching his undertaking. As these offences all occurred within what could be considered a reasonable time for the matter to proceed to trial, there is no actual prejudice to the accused. 3) This is a charge that involves an offence of domestic violence and is so serious that it carries the heightened public interest that exists in offences of violence.