COURT OF APPEAL FOR ONTARIO
Doherty, Feldman and MacPherson JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Patrick Chenier and Lianne Bisaillon
Respondents
Tracy Kozlowski, for the appellant
Michael Haraschuk and Matthew Leef, for the respondent Patrick Chenier
Stephanie E. Baker, for the respondent Lianne Bisaillon
Heard and released orally: December 13, 2013
On appeal from the stay entered on March 20, 2013 by Justice Patricia C. Hennessy of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
1The appellant Crown appeals the order of Hennessy J. of the Superior Court of Justice dated March 20, 2013, staying the charges against the respondents.
2The Crown contends that the trial judge made six errors in her s. 11(b) analysis: (1) she improperly penalized the Crown for late disclosure and the adjournment of the first preliminary hearing; (2) she wrongly attributed delay to the Crown when the preliminary hearing did not proceed on the second scheduled date because one co-accused was ready to plead guilty and the other co-accused dismissed his lawyer that day; (3) she incorrectly attributed delay to the Crown for the period between the conclusion of the preliminary hearing and the filing of the indictment; (4) she erred in attributing delay to the Crown with respect to the scheduling of the superior court pre-trial; (5) she incorrectly attributed delay to the Crown for the period between the superior court pre-trial and the scheduled date for the s. 11(b) hearing/trial; and (6) her prejudice analysis is flawed.
3Although we do not agree with all aspects of the trial judge’s reasons on all of these issues, we do think that her legal analysis is consistent with the tenor and content of the leading decision of the Supreme Court of Canada on s. 11(b), R. v. Godin, [2009] 2 S.C.R. 26, and that her ultimate conclusion, in this very straightforward case, that after 25 months since the charges were laid, a stay was appropriate in the circumstances, is a reasonable one.
4We emphasize two factors in reaching this conclusion. First, the trial judge’s reasons are clearly driven by her knowledge of the court structures, procedures, and practices in her region; she clearly perceived the delay in this case as inconsistent with them. Second, against the backdrop of extensive cross-examination of both respondents on their affidavits, the trial judge made strong factual findings about the prejudice flowing from these proceedings for both respondents. We show proper deference to these findings and recognize that they were a crucial component of the trial judge’s reasons.
5The appeal is dismissed.
“Doherty J.A.”
“K. Feldman J.A.”
“J.C. MacPherson J.A.”
