



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chenier, 2013 ONCA 775

DATE: 20131219

DOCKET: C56925

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

[1]

The appellant Crown appeals the order of Hennessy J. of the Superior
    Court of Justice dated March 20, 2013, staying the charges against the
    respondents.

[2]

The 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.

[3]

Although we do not agree with all aspects of the trial judges 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.

[4]

We emphasize two factors in reaching this conclusion.  First, the trial
    judges 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 judges reasons.

[5]

The appeal is dismissed.

Doherty
    J.A.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.


