R. v. Burke

R. v. Burke

Although the total delay (18 months and 18 days) exceeded normal provincial court times, the majority of the delay was attributable to defence pursuit of the incorrect disclosure process and to third-party processes; Crown actions were in good faith and only partially responsible for unexplained intervals; the actual prejudice did not elevate the delay to an unreasonable breach of s.11(b); therefore the Charter application was dismissed and no stay entered.

Citation
2015 NSPC 90
Parties
Crown: Her Majesty the Queen; Accused: Lee Francis Burke
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
22 December 2015
Procedural Posture
Criminal: Impaired Driving / Pre Trial Charter Application Under S.11(b) (decision)
Outcome
Charter application under s.11(b) dismissed; no stay of proceedings ordered; Crown withdrew s.253(1)(b) count
Legal Topics
Impaired Driving, Disclosure Obligations, Charter S.11(b) Reasonable Time, Third Party Disclosure, Subpoena Duces Tecum, Stay of Proceedings
Source Language
English
Criminal Law Constitutional Law Criminal Procedure Evidence Law Impaired Driving Disclosure Obligations Charter S.11(b) Reasonable Time Third Party Disclosure +2 more

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Parties

Her Majesty the Queen

Crown

Lee Francis Burke

Accused

Procedural Posture

Criminal: Impaired Driving / Pre Trial Charter Application Under S.11(b) (decision)

Legal Issues

  1. 1 Whether the delay from charge to trial violated s.11(b) of the Charter
  2. 2 Whether the defence-requested materials were Crown disclosure or third-party materials requiring subpoena duces tecum
  3. 3 How to attribute periods of delay between Crown, defence and institutional factors

Ratio Decidendi

Although the total delay (18 months and 18 days) exceeded normal provincial court times, the majority of the delay was attributable to defence pursuit of the incorrect disclosure process and to third-party processes; Crown actions were in good faith and only partially responsible for unexplained intervals; the actual prejudice did not elevate the delay to an unreasonable breach of s.11(b); therefore the Charter application was dismissed and no stay entered.

Court Disposition

Charter application under s.11(b) dismissed; no stay of proceedings ordered; Crown withdrew s.253(1)(b) count

Orders

  • Charter motion dismissed
  • No stay of proceedings granted