R v Gauvin, 2009 NBPC 29 (CanLII)

Gauvin is charged with two counts of uttering threats to kill a dog contrary to section 264.1(1)(c); two counts of killing an animal (a German Shepherd dog and a Labrador Retriever dog) contrary to section 445(1)(a); and one count of assault contrary to section 266(b) of the Criminal Code.

At the outset of the trial, the defendant brought an application seeking a stay of proceedings, alleging a violation of his guaranteed right to be tried within a reasonable time under the Charter.

The accused was arrested on June 11, 2008 after police received a complaint of spousal abuse, and possible assaults, threats and killing of animals. The accused pled not guilty and a trial date was set for July 18, 2008. On that date, the Crown requested an adjournment of the trial, and the trial was rescheduled for September 19, 2008. The accused had been detained for 38 days, but was released at that point on an undertaking to the Court. In August, 2008, the RCMP officer in charge of the investigation received a report from a veterinary pathologist with the causes of death of the two dogs. On September 16, 2008, a new information containing the five counts outlined above was laid against the defendant. On September 19, 2008, the Crown withdrew the counts contained in the previous information laid on June 12, 2008, and the defendant was asked to answer the new information containing the five counts. The defendant’s counsel was not prepared to proceed and the presiding judge adjourned the matter to October 10, 2008. On October 10, 2008, a new trial date was set for March 12, 2009. On that date, the assigned judge was not available to hear the case against the defendant and no other judge was available for that day; therefore, the matter was adjourned to June 18, 2009. On June 18, 2009, the defendant brought his application alleging violation of his right to be tried within a reasonable time and the application was heard on that date.

The judge finds that the 12 months delay attributable to the Crown is in excess of the suggested period of six to eight months for these type of offences and finds that the delay to bring the assault charge to trial violates the defendant’s right under section 11(b) of the Charter. He also finds the delay of 9 months to bring the two charges of uttering threats and the two charges of killing dogs to trial to be unreasonable and in violation of the defendant’s section 11(b) Charter right.

The judge states that when dealing with an unreasonable delay to proceed to trial, the only remedy is a stay of proceedings because a breach under section 11(b) in these circumstances is an infringement of the defendant’s rights under the Charter and as such is irreparable otherwise.

The judge orders a stay of proceedings on all charges.

Source: Case Law

Jurisdiction: New Brunswick

Topics: animalsCharterCharter applicationCharter rightsCriminal Codedogskillingstaystay of proceedingsthreatsunreasonable delay

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