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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Trial within a reasonable time - Waiver

Friday, March 23, 2018 @ 8:37 AM  


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Appeal by the accused from a decision dismissing his application for a stay of proceedings due to delay and from his conviction for criminal harassment of his former lover. The accused was first arrested in 2008 on five counts of criminal harassment. He was arrested several times on further charges of criminal harassment involving the same victim. After discharging four lawyers and bringing numerous motions, many of which were abandoned, seeking adjournments and failing to comply with filing requirements for his motions, and proceeding through two pre-trials, the appellant appeared for trial in April 2013 on a 17-count indictment. At that time, he applied for a stay of proceedings due to delay. The day after the motion was dismissed, the appellant appeared before a different judge and pleaded guilty to five of the 17 counts. The Crown agreed to withdraw the other 12 charges. The appellant then leveraged his guilty plea as a mitigating factor in support of his submission that he should receive a non-custodial sentence. The trial judge agreed and gave him a suspended sentence.

HELD:  Appeal dismissed. The entry of a guilty plea by a self-represented accused, which he did not seek to withdraw or have set aside on appeal, disentitled him from challenging on appeal a pre-trial ruling that proceedings taken against him were constitutionally flawed because his trial was not held in a reasonable time. Through his legal chicanery and manoeuvres over the years, the appellant had attempted to make a mockery of the criminal trial process. By his pleas of guilty, he acknowledged the underlying facts of the offences. The transcript of proceedings reflected that his pleas were voluntary, unequivocal, and fully informed. This is not a case involving a miscarriage of justice but another attempt by the appellant to pervert the process. There was also no unreasonable delay. From a total delay of 54 months, a total of 22.75 months was deducted as defence delay, leaving a period of 31.25 months of delay, slightly above the Jordan ceiling of 30 months. The period of delay was well under the Morin guidelines. The transitional exceptional circumstances justified the delay in completing the appellant’s trial. The trial judge properly applied the Morin framework. The appellant’s approach to the litigation injected a degree of complexity to the proceedings that extended well beyond the usual requirements of proof. The Crown resisted many of the appellant’s requests for lengthy adjournments. His approach to the prosecution belied any real interest in moving the case forward. To the extent that the appellant experienced any prejudice, it was of his own making.

R. v. Faulkner, [2018] O.J. No. 1045, Ontario Court of Appeal, D. Watt, G. Huscroft and G.T. Trotter JJ.A., February 23, 2018. Digest No. TLD-March192018010