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CONSTITUTIONAL ISSUES - Procedural rights - Trial within a reasonable time

Monday, October 05, 2020 @ 9:15 AM  

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Appeal by the accused from a decision of the summary conviction appeal judge that reinstated charges that were stayed for unreasonable delay. The accused was charged with impaired driving and driving with a blood alcohol level over .08 in August 2017. The accused’s original trial date in September 2018 was adjourned due to a miscommunication between the Crown and the investigating officer about the officer’s availability to testify. The motion judge concluded the delay between the date on which the accused was charged and the date of the new trial in January 2019 was unreasonable and stayed the charges. The appeal judge concluded the motion judge erred in finding a Charter breach and reinstated the charges.

HELD: Appeal dismissed. The motion judge made an error of law by inappropriately taking judicial notice of the Crown’s practice of subpoenaing professional witnesses six to eight weeks before trial. The Crown’s practice as to when subpoenas were issued was an adjudicative fact that was neither notorious nor easily verified and should not have been judicially recognized. The accused did not meet his onus of establishing the case took markedly longer than it reasonably should have or that his s. 11(b) Charter rights were infringed.

R. v. Poperechny, [2020] M.J. No. 196, Manitoba Court of Appeal, W.J. Burnett, J.L. Lemaistre and K.I. Simonsen JJ.A., August 27, 2020. Digest No. TLD-October52020001