R. v. Dunphy (P.H.) et al.,

R. v. Dunphy (P.H.) (2016), 376 N.S.R.(2d) 394 (SC);

    1185 A.P.R. 394

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. SE.004

Her Majesty the Queen v. Paul Howard Dunphy, Brian Joseph Boudreau, Edward Sabbagh

(Hfx. No. 443871; 2016 NSSC 224)

Indexed As: R. v. Dunphy (P.H.) et al.

Nova Scotia Supreme Court

Pickup, J.

August 26, 2016.

Summary:

Two of the accused (Boudreau and Sabbagh) were charged with drug offences under ss. 5(2) and 7(1) of the Controlled Drugs and Substances Act. Their trial was scheduled to commence in April 2016, 3.5 years after the charges were laid. Their trial was now scheduled for December 2016. The accused applied under s. 24(1) of the Charter for a stay of proceedings on the ground that their s. 11(b) right to be tried within a reasonable time was infringed.

The Nova Scotia Supreme Court allowed the application and stayed the proceedings.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - Two of the accused (Boudreau and Sabbagh) were charged with drug offences under ss. 5(2) and 7(1) of the Controlled Drugs and Substances Act - Their trial was scheduled to commence in April 2016, 3.5 years after the charges were laid - Their trial was now scheduled for December 2016 - The accused applied under s. 24(1) of the Charter for a stay of proceedings on the ground that their s. 11(b) right to be tried within a reasonable time was infringed - The Nova Scotia Supreme Court allowed the application and stayed the proceedings - The 3.5 year delay was sufficient to warrant inquiry - The accused did not waive any period of delay - By August 2014, the matter was already delayed for more than 20 months and the preliminary inquiry was delayed for another year - The various Crown and institutional delays included the Crown's failure to make timely disclosure, the failure to meet the notice requirements of s. 540 of the Criminal Code after the Crown opted for a "paper preliminary" and late disclosure of an expert's report which required an adjournment - Applying either R. v. Morin (SCC 1992) or the reformulated test in R. v. Jordan (SCC 2016), the institutional delay exceeded the ceiling - The court stated that the excessive delay was presumptively unreasonable and the Crown failed to establish exceptional circumstances justifying the delay - See paragraphs 1 to 52.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3265 ].

Counsel:

Jeffrey Moors, for the Crown;

Patrick MacEwen, for the accused, Brian Joseph Boudreau;

Patrick Atherton, for the accused, Edward Sabbagh.

This application was heard on May 3, 2016, at Halifax, N.S., before Pickup, J., of the Nova Scotia Supreme Court, who delivered the following judgment on August 26, 2016.