Action No.: 090764242S1 IN THE COURT OF QUEEN’S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON BETWEEN: HER MAJESTY THE QUEEN Respondent - and DONALD JOSEPH KUSHNIRUK Appellant MEMORANDUM OF THE CROWN (RESPONDENT) PART I – STATEMENT OF FACTS Summary 1. On June 23, 2009, Mr. Kushniruk (the Appellant) was charged with possession of a weapon for a dangerous purpose, three counts of assaulting a peace officer with intent to resist arrest, and one count of possession of a controlled substance. A trial of the matter was held intermittently from October 14, 2009 to December 7, 2010. After a ruling on December 7, 2010, a ‘not criminally responsible’ (NCR) hearing was held from September 15, 2011 to January 31, 2012. 2. The Appellant was held in custody over the course of the entire trial and NCR hearing. He never spoke to bail, nor did defence counsel ever attempt to have him released on bail . 2 3. At the end of the evidence on the trial, the Trial Judge found that there were sufficient grounds to find the Appellant guilty of assault and obstructing a peace officer in the execution of his duty, but not assaulting a peace officer to resist arrest because the Crown failed to prove that the Appellant was resisting arrest at the time he was assaulting the police officers. 4. During the Crown’s NCR application, defence counsel initially argued that the Crown’s witness (Dr. Zedkova) was not properly qualified as an expert. The examination, cross examination, argument and decision regarding Dr. Zedkova’s qualifications occurs over approximately 75 pages of transcript and took approximately 1 day of trial time. In the end, the Trial Judge ruled that Dr. Zedkova was qualified to give expert testimony. 5. Dr. Zedkova concluded that the Appellant suffered from a mental disorder that rendered him incapable of understanding the nature and quality of his acts at the time of the offences. Dr. Brown was also called as a witness on the NCR hearing. Defence counsel raised a disclosure issue during his testimony and the matter was adjourned. 6. At the next court date, the Crown discontinued the NCR application on the basis that the application would not likely conclude in the next six months based on the availability of the doctors, the Trial Judge and counsel. The Crown was aware that the Appellant was in custody and recognized that the public interest dictated the conclusion of the trial. 7. The Appellant did not raise delay as a Charter issue during the trial or the NCR hearing, nor did his assigned counsel. 8. Throughout the trial and the NCR hearing, the Appellant was unusually disruptive, requiring constant and frequent reminders from the Trial Judge 3 and his counsel to remain silent. 1 Occasionally, the Appellant was removed from the courtroom and the proceedings were halted until the Appellant could remain reasonably silent during argument and testimony of witnesses. Timing Issues 9. The Appellant has provided a thorough review of the progress of his trial and NCR hearing in Provincial Court. The Respondent has created a table of all the appearances at Tab 1 for a quick review. Respondent’s Analysis of Delay Chart (Tab 8] 10.As a summary, the Respondent would like to highlight the following points regarding the timing of the trial: a. The trial date was booked a mere 7 weeks after the ‘not guilty’ plea was entered. b. The first trial date for ½ day was insufficient due in part to the Appellant’s frequent outbursts and lengthy questions in cross examination. c. The subsequent trial dates were booked by both Crown and defence counsel. Both counsel estimated the length of time necessary for the trial. Both counsel estimated an inadequate amount of time. The Trial Judge consistently demonstrated concern for the Appellant’s right to a speedy trial throughout the process and encouraged the Crown and defence counsel to split dates in order to finish the trial more quickly, as well as to continuously check for court time in case earlier dates opened up (58/7-9, 60/29-41). d. None of the delay was due to the Crown. 1 For example, during the NCR hearing, the Appellant’s counsel said to him, “Donald, can you please write it down please? It’s really hard to do this with you interrupting every two minutes.” (475/15-16) 4 e. Every trial date adjournment was attributable solely to defence counsel with the exception of the February 17, 2010 adjournment, which occurred for an unknown reason. PART II – GROUNDS OF APPEAL 11.Was there a miscarriage of justice based on the ‘mismanagement of proceedings’? Response: The appeal must fail for three reasons: (1) The issue of ‘mismanagement of proceedings’ was not raised before the trial judge in the form of a mistrial application or an Askov application. As a result, the Crown was not given an opportunity to respond or call evidence on the issue. The Appellant does not meet the threshold for raising a new argument on appeal set out by the SCC in R v Brown; (2) There was no miscarriage of justice based on the factors expressed in R v Khan, particularly in light of the actions of the Appellant and his trial counsel; and (3) There was no unreasonable delay leading to a miscarriage of justice in this trial based on the circumstances as a whole. PART III – ARGUMENT A. Standard of Review 12.The Respondent agrees with the Appellant’s submission on the standard of review. B. Miscarriage of Justice or Unreasonable Delay? 13.The Appellant frames the issue as being whether a miscarriage of justice has occurred as a result of the mismanagement of the proceedings. However, when the Appellant’s argument is examined, it is clear that the Appellant is actually arguing that there was an unreasonable delay and that the charges should be stayed. Effectively, the Appellant is seeking Charter relief in the absence of Charter notice for the first time on appeal. New Argument on Appeal 5 14.There are at least two hurdles in the Appellant’s raising a Charter issue for the first time on appeal. First, the Charter issue must not be an issue that the defence could have raised at trial and chose against. Second, the necessary evidence to rule on the Charter issue must be before the court. R v Fertal (1993), 13 Alta LR (3d) 297 (ABCA) at para 29 [Tab 1] 15.In R v Brown (1993), the Supreme Court cautions against appellate courts allowing new arguments on appeal, noting that there are two primary concerns: (1) prejudice to the opposing side caused by the lack of opportunity to respond and adduce evidence at trial and (2) a lack of a sufficient record upon which to make necessary findings of fact to properly rule on the new issue. R v Brown, [1993] 2 S.C.R. 918 (S.C.C.) at para 10 [Tab 2] 16.The Supreme Court goes on to suggest that the “general prohibition” against new arguments on appeal “supports the overarching societal interest in the finality of litigation in criminal matters,” noting that “[w]ere there to be no limits on the issues that may be raised on appeal, such finality would become an illusion” and, ultimately, “respect for the administration of justice would be undermined.” R v Brown, [1993] 2 S.C.R. 918 (S.C.C.) at para 11 [Tab 2] 17.There are three possible scenarios in regard for raising new issues on appeal: (1) An appeal on a new issue may be permitted any subsequent change to the procedural or substantive law; (2) An appeal on a new issue may be denied despite the change in law except in exceptional circumstances; and (3) An appeal on a new issue may be permitted where a law has been declared unconstitutional and there is no longer a legal basis to the conviction. R v Brown, [1993] 2 S.C.R. 918 (S.C.C.) at para 12 [Tab 2] 18.In the present case, the Appellant is unable to satisfy the high threshold set out by the Supreme Court for raising a new issue on appeal. The law has not 6 been changed, nor has the law been declared unconstitutional. Furthermore, the argument was available to be advanced by the Appellant’s capable trial counsel and there is an incomplete record upon which an appellate court can decide the issue. 19.It is inappropriate for an Askov application to be raised post-conviction and post-sentence in this manner. The Appellant was represented by competent counsel throughout the proceedings. Delay was never raised as a Charter concern despite the fact that it was available. This court has not been provided with complete transcripts of the proceedings such that this issue can be properly considered on appeal. Unreasonable delay arguments are peculiarly context specific and a proper trial record is critical to examination of the issues. 20.The Respondent respectfully submits that the court does not have jurisdiction to entertain the Appellant’s unreasonable delay argument, regardless of whether it is framed as a “miscarriage of justice.” C. Miscarriage of Justice 21.If the court decides to hear the Appellant’s delay argument, the Respondent respectfully submits that the Appellant has failed to demonstrate that (a) there has been a miscarriage of justice on the basis of delay and (b) that there has been a Charter breach on the basis of unreasonable delay. The Law 22.The term ‘miscarriage of justice’ can apply where a substantial irregularity causes an appearance of unfairness. The focus in 686(1)(a)(iii) is not on the verdict or its reasonableness, but on the fairness of the process in reaching the verdict. A miscarriage of justice “means such departure from the rules which permeate all judicial procedure as to make that which happened not in the proper use of the word judicial procedure at all.” 7 R v Karas, 2007 ABCA 362 (Alta CA) at para 52, quoting from Robins v National Trust Co., [1927] 1 WWR 692 at 7 [Appellant’s Materials at Tab 2] 23.In R v Khan (2001)(SCC), Mr. Justice LeBel considered the notion of ‘miscarriage of justice’, indicating that the thrust of s. 686(a)(iii) is not the final verdict or the strength of the evidence, but rather on the “gravity of the irregularity and the effect it may have ad on the fairness of the trial.” R v Khan, 2001 SCC 86 (SCC) at para 69 [Appellant’s Materials at Tab 3] 24.Mr. Justice LeBel goes on to provide “reference points” in determining whether a miscarriage of justice has occurred in a particular case: a. Does the irregularity pertain to a question in law or fact that is central to the case against the accused? An irregularity related to a central point of the case is more likely to be fatal. Alternatively, does the irregularity create a general apprehension of unfairness on the whole of the case, for example, leading jurors to feel greater antipathy toward an accused person. b. What is the relative gravity of the irregularity? How much influence could it have had on the verdict? How severe were the detrimental effects on the accused’s case? What are the possible cumulative effects of the irregularities? c. Was the trial by judge alone or by judge and jury? Sometimes, irregularities involving a jury can be more severe. d. What is the possibility that the irregularity may have been remedied, in full or in part, at the trial? Were any corrective measures brought by the judge to remedy the irregularity? e. What is the effect of the irregularity on the fairness of the trial and the appearance of fairness? Intentional irregularities may contribute to the appearance of unfairness, but accidental irregularities may also trigger a miscarriage of justice. 8 f. How did defence counsel react to the irregularity at trial? If she had an opportunity to object to the irregularity and failed to so, it militates for a finding that the trial was not unfair. The inference drawn from counsel’s failure to object may be even stronger when she expressly gave consent to an alleged irregularity. Also, “the more counsel had time to reflect to bring an objection, the more this criterion will be determinative, and the more it will be appropriate to infer that the trial was not unfair.” R v Khan, 2001 SCC 86 (SCC) at paras 75-86 [Appellant’s Materials at Tab 3] 25.In determining whether there has been a miscarriage of justice, an appeal court is entitled to take into account defence counsel’s response (or lack thereof) to procedural irregularities as they occur. According to Mr. Justice LeBel in R v Khan (2001): If the accused's counsel himself saw no unfairness resulting from a certain irregularity at trial, this would tend to indicate that the trial was not unfair, in reality or appearance. Even if an irregularity might seem prejudicial to the accused, the failure to object may very well be a calculated tactical decision by defence counsel. Hence, courts must be careful to avoid second-guessing such tactical decisions (see e.g. R. v. G.D.B., [2000] 1 S.C.R. 520, 2000 SCC 22, at paras. 34-35 ....) R v Khan, 2001 SCC 86 (SCC) at para 86 [Appellant’s Materials at Tab 3] Aff’d in R v Ferguson, 2006 ABCA 36 at para 30 [Tab 3] See also R v Jacquard [1997] 1 SCR 314 (SCC) at paras 36-38 [Tab 4] Application 26.The facts of the present case do not disclose a miscarriage of justice: a. The Appellant argues that the length of the proceedings precluded a fair trial in part because he was incarcerated throughout the process. However, the Appellant’s incarceration was due to the fact that he never applied for bail despite the fact that he was regularly brought 9 before the Court of Queen’s Bench for s. 525 detention review applications regularly. The Trial Judge was alive to the bail issue and suggested to defence counsel that she undertake a “bail appeal” on the Appellant’s behalf (59/24-33). It is the Respondent’s understanding that the bail review applications were adjourned by the Appellant without addressing the merits, but it is impossible to know because the Appellant failed to provide transcripts of the entire proceedings. b. The Appellant goes on to argue that the length of the proceedings on its own precluded a fair trial. However, neither the Appellant nor his counsel made an application for a Charter remedy based on that delay. Additionally, the bulk of the delay was due to defence counsel’s illness, unanticipated defence applications (such as a lengthy challenge of the qualifications of Dr. Zedkova), and the disruptive behavior of the Appellant in court. 27.Application of the Khan ‘reference points’ supports the conclusion that there was not a miscarriage of justice: a. Does the irregularity pertain to a question in law or fact that is central to the case against the accused? No. The irregularity pertains to the procedure of the trial and did not create a general apprehension of unfairness on the whole of the case. b. What is the relative gravity of the irregularity? How much influence could it have had on the verdict? The length of the trial did not influence the verdict at all. c. Was the trial by judge alone or by judge and jury? The trial was heard by a judge sitting without a jury, which militates against a miscarriage of justice. d. What is the possibility that the irregularity may have been remedied, in full or in part, at the trial? Were any corrective measures brought by the judge to remedy the irregularity? It was open to the Appellant and his counsel to raise the issue of unreasonable delay throughout the 10 proceedings. It was also the Appellant’s right to seek release in Provincial Court and at Queen’s Bench. The Trial Judge consistently pushed to have earlier trial dates throughout the proceedings, but could not force defence counsel to come to court when she was ill. e. What is the effect of the irregularity on the fairness of the trial and the appearance of fairness? When the transcript is read as a whole, it is immediately apparent that the vast majority of the delay was the exclusive result of the Appellant’s obstructive behavior and his counsel’s ongoing illness. Both counsel inadequately estimated the length of time required for the proceedings. The Appellant also agreed to each date and waived his right to make a delay application. f. How did defence counsel react to the irregularity at trial? Defence counsel did not make an unreasonable delay application at any point in time. 28.The Appellant was represented by competent defence counsel throughout the trial. It must be assumed that her actions with respect to the matter (including choosing not to seek a remedy for the delay and not to seek bail) were considered and strategic. The procedural irregularities associated with the trial are mitigated by the course of action taken by the Appellant and his counsel throughout the process. D. Unreasonable Delay: Section 11(b) of the Charter 29.The Appellant alleges that the length of the proceedings resulted in a miscarriage of justice. The question of miscarriage of justice is focused on fairness. Therefore, the Appellant must establish that the delay in this case created unfairness to the Appellant. It is respectfully submitted that the Appellant is unable to establish unfairness without establishing that the delay was unreasonable. 30.The Appellant has been unable to provide a single authority in which an appellate court found a miscarriage of justice based on delay of trial 11 proceedings. The reason is obvious: delays in the trial process are properly dealt with pursuant to section 11(b) of the Charter. Although the Respondent takes the position that this is a new argument on appeal, the Respondent will be relying on section 11(b) authorities to respond to the Appellant’s claim in the alternative. The Law 31.It is respectfully submitted that the Appellant has provided insufficient transcripts for the court to rule on the delay issue. As noted by the Alberta Court of Appeal in R v Holt (1991) (ABCA), “the history of the case should be presented to the Court documented by transcripts (where such transcripts are available), as opposed to counsel’s giving their memories (often diverging) of why earlier remands or adjournments were granted.” R v Holt (1991), 117 AR 218 (ABCA) at para 11 [Tab 5] 32.The Appellant has similarly failed to provide admissible evidence to allow the court to assess local delays with those in comparably-situated Canadian jurisdictions, which is also required for a section 11(b) analysis. R v Holt (1991), 117 AR 218 (ABCA) at para 11 [Tab 5] 33.Determination of whether there has been unreasonable delay in a proceeding requires more than tallying the months between charge and conclusion of the trial. Section 11(b) requires a balancing of the interests of the accused for a speedy trial and the interests of society in law enforcement. The delay must be considered in light of all the factors involved in a particular trial. R v Morin, [1992] 1 SCR 771 (SCC) at para 27 [Tab 6] 34.Courts have recognized that the actions of some accused people are inconsistent with a genuine interest in a speedy trial. Those accused people may attempt to use any delay to their tactical advantage to avoid the consequences of their criminal behavior. addressed this issue at paragraph 57: In Morin¸ Mr. Justice Sopinka 12 This Court has made clear in previous decisions that it is the duty of the Crown to bring the accused to trial. While it was not necessary for the accused to assert her right to be tried within a reasonable time, strong views have been expressed that in many cases an accused person is not interested in a speedy trial and that delay works to the advantage of the accused. This view is summed up by Doherty J. (as he then was) in a paper given to the National Criminal Law Program in July 1989 which was referred to with approval by Dubin C.J.O. in Bennett (at p. 52 [C.R.] and echoes what has been noted by numerous commentators: An accused is often not interested in exercising the right bestowed on him by s. 11(b). His interest lies in having the right infringed by the prosecution so that he can escape a trial on the merits. This view may seem harsh but experience supports its validity. As also noted by Cory J. in Askov, supra, “the s. 11(b) right is one which can be transformed from a protective shield to an offensive weapon in the hands of the accused” (p. 1222[S.C.R.]). This right must be interpreted in a manner which recognizes the abuse which may be invoked by some accused. The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider…Nonetheless, in taking into account inaction by the accused, the court must be careful not to subvert the principle that there is no legal obligation on the accused to assert the right. Inaction may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay. (emphasis added) R v Morin, [1992] 1 SCR 771 (SCC) at para 57 [Tab 6] 35.There are four factors that must be considered when a court assesses whether delay has been unreasonable in a particular case: a. Length of the delay b. Waiver of time periods c. Reasons for the delay, including i. Inherent time requirements for the case ii. Actions of the accused iii. Actions of the Crown 13 iv. Limits on institutional resources, and v. Other reasons for delay; and d. Prejudice to the accused. R v Morin, [1992] 1 SCR 771 (SCC) at para 26 [Tab 6] Application (A) Length of the Delay 36.In Morin, the Supreme Court provided a guideline for institutional delay of 8-10 months in provincial court. Mr. Justice Sopinka robustly cautioned that the guideline is neither a fixed limitation period nor a fixed ceiling on delay and must not be applied in a purely mechanical fashion. R v Morin, [1992] 1 SCR 771 (SCC) at paras 45-47 & 50 [Tab 6] 37.More recently in R v Godin, the Supreme Court of Canada noted that an institutional delay in substantial excess of the Morin guideline does not automatically make a delay unreasonable. In finding the delay unreasonable in that case, the Court considered the lack of complexity of the case, the modest court time required, the attribution of the delay to the Crown, the unexplained nature of the delay and the efforts of defence counsel to move the trial date forward. R v Godin, 2009 SCC 6 (SCC) at paras 5 & 27 [Tab 7] 38.The Appellant points to the initial scheduling of the trial date as indicative of mismanagement of the trial. In Edmonton Provincial Court, trial scheduling is expected to occur through informed consultations between Crown and defence counsel. It is not inconceivable that the Crown could call six brief witnesses in a half-day trial. The matter initially appeared straightforward both legally and factually. The Appellant’s counsel would have been in the best position to recognize that the Appellant would present difficulties requiring additional time and she should have had the matter brought 14 forward for more trial time, or in the alternative, she should have requested an adjournment at the opening of the trial for a longer trial to be booked. 39.In this case, the total institutional delay was 59 weeks (approximately 13.5 months). The total Defence delay was 10 weeks. The total Crown delay was 0 weeks. In assessing the institutional delay, it is critical to note that at least two quick trial dates were lost due to Defence counsel’s illness, as well as another half day during the trial, requiring two civilian witnesses to re-attend on the next day (139-40/41- 33). The 10 weeks attributed to Defence counsel’s illness also had a significant impact on the overall institutional delay since the adjournments ‘used up’ some of the trial dates that had been booked months earlier. Respondent’s Analysis of Delay Chart [Tab 8] 40.The overall delay may appear disconcerting on first blush, but when examined more closely, it becomes apparent that the Appellant had 22 appearances in Provincial Court over the 30 month period of his trial. There was never more than 3.5 months between his Provincial Court appearances. He also had several appearances in the Court of Queen’s Bench for detention review applications. 41.Finally, this case was factually basic but legally complex and complicated further by the NCR process after the finding of guilt. The two stage process of the trial (the trial proper and the NCR proceedings) logically require significantly more time than a regular trial involving the same facts. Add to this complicated framework a mentally ill and verbose accused person and the reasonable timelines must be stretched even further. (B) Waiver of Time Periods 42.The court must consider whether the accused has waived his right to complain of delay in whole or in part by his conduct or express agreement. 15 Consent to a trial date can give rise to an inference of waiver, however this is not the case if the consent is mere acquiescence to the inevitable. R v Morin, [1992] 1 SCR 771 (SCC)at paras 32- 33 [Tab 6] 43.The onus of demonstrating a waiver lies with the Crown. Silence cannot constitute a lawful waiver, but agreeing to a future trial date is not silence and gives rise to an inference that the accused is waiving his right to allege that an unreasonable delay has occurred. R v Sapara, 2001 ABCA 59 (ABCA) at paras 33-34 [Tab 9] 44.In R v Heikel (1992) (ABCA), the Alberta Court of Appeal held that “When the defence elects to remain silent after agreeing to a trial date… the defence runs the risk, a very real one, that the court will treat its continued silence, when viewed in combination with its earlier agreement as continued waiver.” The Chief Justice held that, in the absence of evidence that defence counsel was agreeing to the inevitable, counsel’s consent to a trial date can give rise to an inference of waiver. R v Heikel (1992), 72 CCC (3d) 481 (ABCA) at paras 28 & 24 [Tab 10] 45.Finally, courts are unlikely to find an unreasonable delay where the actions of defence counsel are inconsistent with an expeditious trial. In R v Steel (1995) (ABCA), the Alberta Court of Appeal upheld the trial judge’s ruling that the actions of defence counsel were “completely inconsistent…with a desire to move expeditiously to trial” based on his tactics during the trial. R v Steel (1995), 34 Alta LR (3d) 440 (ABCA) paras 20-26 [Tab 11] 46.In the present case, Defence counsel expressly agreed to every trial date and each adjournment. Although the Appellant occasionally commented that he objected to his lodgings at Alberta Hospital or the Remand Centre, his comments must be viewed in light of the fact that he never applied for bail 16 despite the fact that he did not have a criminal record and was being tried on relatively minor charges. (C) Reasons for the Delay a. Inherent time requirements for the case 47.Inherent time requirements refer to the time taken to retain counsel, do police and administrative paperwork, prepare disclosure, and proceed through the preliminary inquiry process. Longer delays are reasonable in increasingly complex cases. R v Morin, [1992] 1 SCR 771 (SCC)at paras 35-38 [Tab 6] 48.In this case, the inherent time requirements would also presumably include the time used to assess the fitness of the Appellant at the outset of the trial, as well as the time to prepare and organize Dr. Brown’s disclosure once it was ordered. The actual facts of this case were not complex, but resulted in complicated and lengthy legal arguments and a subsequent NCR application, which are generally quite involved. b. Actions of the accused 49.The Appellant urges the appeal court to find that the Learned Trial Judge “lost control of the process” and that “the conduct of these proceedings was grossly mismanaged.” However, the vast majority of delays and inefficiencies in this case are attributable solely to the Appellant and his counsel. 50.Voluntary actions taken by an accused person that cause delay must be considered in determining whether the delay is reasonable. In Morin, the Supreme Court provides some examples of actions included in this category: change of venue motions, attacks on wiretap packets, adjournments, attacks on search warrants, etc. R v Morin, [1992] 1 SCR 771 (SCC) at para 39 [Tab 6] 17 51.Courts are unlikely to find an unreasonable delay where the actions of an accused person are inconsistent with an expeditious trial. R v Steel (1995), 34 Alta LR (3d) 440 (ABCA) [Tab 11] 52.In this case, the Appellant’s actions were absolutely inconsistent with an expeditious trial in several ways: a. The Appellant would go into diatribes of varying length regarding the justice system, the Charter and other random issues at several points throughout the proceedings including: i. His dissatisfaction with having a female judge (4/13-41), (579/7-14) ii. His request for a “do not detain order” (62/13-40), (279/6-18), (501/17-18), (579/38-41) iii. His request for habeus corpus (92/3-25) iv. His feelings of recognizing that everyone is doing their jobs (140/35-40) v. His refusal to state his name for the record before testifying (pp. 208-210) vi. His refusal to swear an oath before testifying (207-208/25-17) vii. His perception of s. 2 of the Charter (219/26-34) viii. His perception of legal fictions (220/18-29) ix. His recollection of other incidents in which he had difficulty with bearing weapons in public (224-5/31-26), (256/34-41), (272/4-30), (273/19-41), (pp. 274-277), (pp. 279-280), (333/3-6) x. His beliefs regarding public education of the law (229/4-38) xi. His plans for the future (283/4-15) xii. The domain of vulnerability and the warrior spirit (287/1-35) xiii. Codes of conduct (349/16-33) xiv. His right to freedom of thought (350/26-38) xv. Why he did not discuss God during his forensic interview (497/25-31) xvi. Previous assaults against him (539/3-10) xvii. Citizen’s rights of arrest (578-579) 18 b. The Appellant would verbally interrupt proceedings and require redirection from the Trial Judge and/or his counsel regularly. During the Crown Prosecutor’s final submissions on conviction, the Appellant interrupted her and was redirected 26 times. During Defence Counsel’s final submissions on conviction, the Appellant interrupted him and was redirected on 8 occasions. During the decision regarding conviction, the Appellant had 22 verbal outbursts with comments such as “That’s incorrect” or “Wrong”. The court had to adjourn on several occasions to provide the Appellant with an opportunity to calm down. The Appellant also interrupted at regular intervals throughout the NCR hearing. c. The Appellant refused to question witnesses properly. During cross examination, he constantly lectured the witnesses and questioned them on irrelevant subjects. During the Crown’s examination in chief, the Appellant would interject with commentary such as “horse shit” or “Liar.” The Appellant was redirected on his questioning over 55 times during the trial. 53.The Appellant’s counsel also took actions that were inconsistent with an expeditious trial by raising the issue of the expertise of a doctor who clearly met the low standard required in R v Mohan and went on to argue the issue at significant length (pp. 379-452) even though the Appellant agreed that Dr. Zedkova and Dr. Brown were “very qualified” (434/21-22) and he was “fine with her qualifications” (453/8). She also raised an issue about disclosure of a doctor’s notes but objected to the doctor being called as a witness to discuss the disclosure. Ultimately, the qualification issue and the disclosure each resulted in requiring additional trial days being set. 54.Certainly, it would have been unreasonable for the Trial Judge to insist that the trial proceed on each of the three occasions that defence counsel adjourned due to illness or unavailability; it would have been similarly inappropriate for the Trial Judge to remove the Appellant from the courtroom 19 to prevent his outbursts from fragmenting the proceedings or to disallow defence disclosure applications on the basis of delay. 55.The Appellant suggests that delays due to his disruptive behavior should have been anticipated and “effectively managed” without providing further detail as to how the Trial Judge could have achieved this monumental task. The transcript reveals a mentally ill accused person who is verbose, lacks self-restraint and is extremely opinionated. There are limited options available to a trial judge dealing with such an accused person. 56.In this case, the Trial Judge consistently reminded the Appellant to wait his turn; she provided him with pens and paper so that he could write down his thoughts instead of verbally disrupting the proceedings; she even had him periodically removed from the courtroom and ‘paused’ the trial so that he could calm down. It is respectfully submitted that the Trial Judge used every tool in her arsenal to limited avail. c. Actions of the Crown 57.It is respectfully submitted that the Crown’s actions did not contribute to the delay. d. Limits on institutional resources 58.The timing for a case begins to run when both parties are ready for trial but the system is unable to accommodate them. Courts must recognize that the state does not have unlimited funds and weigh this fact against the constitutional obligation to prevent unreasonable delay for accused people. R v Morin, [1992] 1 SCR 771 (SCC) at paras 42-43 [Tab 6] 59.The limits on court availability may have played some role in the institutional delay, but it is limited. It was the continuous requirement for more court time that drove the institutional delay as opposed to the inherent limitations of court availability. e. Other reasons for delay 20 60.Various other reasons for delay can arise. In Morin, the court points to an example in which a trial judge was responsible for 19 adjournments over 11 months. R v Morin, [1992] 1 SCR 771 (SCC) at para 54 [Tab 6] 61.In the present case, there were two delays that would fall under this category. First, the Trial Judge was assigned to a two month trial in September and October of 2011 (262/6). Second, the Trial Judge had surgery which prevented her from hearing the matter in December of 2011 (348/4-6). (D)Prejudice to the Accused 62.Prejudice to an Accused person may be inferred from prolonged delay. Longer delays result in a stronger inference to be drawn. However, action (or lack thereof) by the accused person which is inconsistent with a desire for a timely trial is a factor to be considered in determining the degree of prejudice suffered by the accused as a result of delay. R v Morin, [1992] 1 SCR 771 (SCC) at paras 56- 57 [Tab 6] 63.The Appellant’s failure to seek release is a factor to be considered on this ground. Pre-trial custody can be prejudicial to an accused person, but this prejudice is attenuated if the accused person fails to seek release. An accused person has a duty to attempt to mitigate this prejudice through applying for release. This is specifically referenced in R v Morin (1992) (SCC), in which the court holds, “Inaction may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of the delay.” R v Morin, [1992] 1 SCR 771 (SCC) at para 57 [Tab 6] 64.The Supreme Court goes on to hold that “[c]onduct of the accused falling short of waiver may be relied upon to negative prejudice.” In this case, the Appellant was clearly unhappy with the ongoing nature of his trial, but his 21 counsel implicitly (and explicitly at times) waived his right to raise an unreasonable delay argument as discussed above. 65.There is no doubt that the Appellant suffered prejudice in the form of pre-trial custody, but this is not the end of the inquiry. That prejudice would have been quickly and effectively alleviated if the Appellant had elected to request bail either in Provincial Court or during one of his several s. 525 detention reviews. Overall, the prejudice is significantly minimized in light of the inaction of the Appellant. 66.Ultimately, the circumstances created by the Appellant and his counsel made it impossible for the Trial Judge to expedite the proceeding. It was also out of her control to force the Appellant to speak to release. The delays in this case were not unreasonable and this ground of appeal must fail. E. What is the Appropriate Remedy? 67.If the Court finds that there has been a miscarriage of justice based on unreasonable delay, the Respondent agrees that a stay of the charges would be the only appropriate disposition. PART IV – RELIEF REQUESTED 68.The Respondent requests that the appeal be dismissed. ALL OF WHICH IS RESPECTFULLY SUBMITTED. DATED at the City of Edmonton in the Province of Alberta this 21st day of November 2012. ______________________________ Megan Rosborough CROWN PROSECUTOR 22