R. v. Fulton

R. v. Fulton

The judge refused to recuse because deciding the s.11(b) application did not require review of his prior discretionary adjournment decisions and a reasonable observer would not apprehend bias; the COVID‑19 pandemic qualifies as a discrete exceptional circumstance and 16.3 months were attributable to it; total delay from charge to anticipated end of trial was 29 months, defence delay was 0 months, and after deducting exceptional delay the adjusted delay was 12.7 months which is below the 18‑month Jordan provincial‑court ceiling, so the prosecution rebutted the presumption of unreasonableness and the stay was denied.

Citation
2022 NSPC 53
Parties
Crown: Her Majesty the Queen; Accused: Thomas James Fulton
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
7 July 2022
Procedural Posture
Criminal Summary Conviction / Pre Trial: Charter S.11(b) Stay Application and Prosecution Recusal Application Before Assigned Trial Judge
Outcome
Application for recusal dismissed; application for a stay of proceedings under s.11(b) denied
Legal Topics
Section 11(b) Charter — Unreasonable Delay, Stay of Proceedings, Recusal and Reasonable Apprehension of Bias, Exceptional Circumstances — COVID 19 Pandemic, Jordan Framework
Source Language
English
Criminal Law Constitutional Law Judicial Ethics Section 11(b) Charter — Unreasonable Delay Stay of Proceedings Recusal and Reasonable Apprehension of Bias Exceptional Circumstances — COVID 19 Pandemic Jordan Framework

Case Brief

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Parties

Her Majesty the Queen

Crown

Thomas James Fulton

Accused

Procedural Posture

Criminal Summary Conviction / Pre Trial: Charter S.11(b) Stay Application and Prosecution Recusal Application Before Assigned Trial Judge

Legal Issues

  1. 1 Whether the presiding trial judge must recuse
  2. 2 Whether delay breached s.11(b) Charter right to be tried within a reasonable time
  3. 3 Proper attribution of adjournment delays (prosecution, defence, systemic, exceptional)

Ratio Decidendi

The judge refused to recuse because deciding the s.11(b) application did not require review of his prior discretionary adjournment decisions and a reasonable observer would not apprehend bias; the COVID‑19 pandemic qualifies as a discrete exceptional circumstance and 16.3 months were attributable to it; total delay from charge to anticipated end of trial was 29 months, defence delay was 0 months, and after deducting exceptional delay the adjusted delay was 12.7 months which is below the 18‑month Jordan provincial‑court ceiling, so the prosecution rebutted the presumption of unreasonableness and the stay was denied.

Court Disposition

Application for recusal dismissed; application for a stay of proceedings under s.11(b) denied

Orders

  • Recusal application dismissed.
  • Charter application for a stay of proceedings denied; matter to proceed to trial as scheduled.