Law Times

Law Times • October 21, 2013 Page 9 NEWS 11 years too long to bring someone to trial, judge finds Attempted murder charge stayed, Crown's duty to repatriate highlighted BY GLENN KAUTH Law Times R ejecting the Crown's argument that 11 years "is not an unreasonable length of time to get to trial," an Ontario Superior Court judge has stayed an attempted murder charge against a man in a case that highlights officials' duty to try to bring accused criminals back to Canada to face trial. "The delay between the date Mr. Arsenault was charged and the date he was arrested was not waived by him," Superior Court Justice Gregory Ellies wrote in R. v. Arsenault on Oct. 10. "It was not part of the inherent requirements of the case. Nor was it due to inaction on the part of Mr. Arsenault, who had no duty to bring himself to trial." The case, in fact, dates back to July 19, 1999, when the Ontario Provincial Police in Parry Sound, Ont., started to suspect Joseph Arsenault in an incident the previous day in which someone wired a spark plug from the engine of Bradley Burt's car into the gas tank. They executed warrants at Arsenault's home later that summer and eventually took DNA samples from him but didn't lay charges until May 22, 2002, according to Ellies' decision to stay the matter this month. But by then, Arsenault had left Canada after getting a job in South Korea. He stayed there until late 2009 when authorities detained him at the South Korean border while returning from a holiday because Canadian officials had revoked his passport. He returned to Canada that same month, at which point authorities arrested him. He was to go to trial on July 22, 2013, but he succeeded in obtaining a stay based on a breach of his right to trial within a reasonable time under s. 11(b) of the Charter of Rights and Freedoms. "What that shows is that the state has a duty to bring the accused to trial, especially when the charges are serious," says Angela Chaisson, one of Arsenault's lawyers in the case along with co-counsel David Connally. In opposing the stay, the Crown argued, among other things, that Arsenault had implicitly waived part of the delay because he had indicated as early as Feb. 28, 2007, that he was aware of an outstanding warrant for his arrest when he wrote his former lawyer, Len Walker, asking for help with the matter. Ellies, however, rejected that argument. "First, an accused who becomes aware of outstanding charges which were laid after he left the country does not waive his right to trial within a reasonable time merely by failing to return," he wrote. "Therefore, the Crown cannot demonstrate a waiver by Mr. Arsenault simply on the basis that he was aware of the warrant and did not return," he continued. "It is still open to the Crown, nonetheless, to demonstrate on the particular facts of this case that Mr. Arsenault waived his right under s. 11(b). However, any waiver by the accused must be 'clear and unequivocal' and proved on a balance of probabilities." For Chaisson, a key point in the ruling is the emphasis on the police duty to act in bringing someone back to Canada, an issue Ellies repeatedly made reference to in raising concerns about authorities' relaxed at- 'There is no duty to assist police,' says Angela titude about the issue. "In the Chaisson. present case, the police decided Crown even if Arsenault knew early not to extradite Mr. Arsehe was a suspect at some point. nault," wrote Ellies. In Chaisson's view, then, "Even in those circumstances, the case makes it clear that the it's the police that have to act," burden falls on police and the she says. "There is no duty to assist police," she notes. Chaisson also says Arsenault shouldn't shoulder blame for the delay because he left the country, an issue raised by the Crown in opposing the stay. "He left as he was entitled to do," she says. Ellies, in fact, agreed on that issue as he found Arsenault didn't flee the country to escape the charges. Noting that more than two years had passed since police executed the original search warrants by the time Arsenault spoke to a staff sergeant about the matter in 2001, Ellies found it was reasonable to suggest he had actually left the country thinking he was no longer a suspect. According to Ellies, the staff sergeant didn't explicitly tell Arsenault he was still a suspect but instead had merely told him it — "meaning the incident" — was still under investigation. The case follows a recent high-profile Nova Scotia matter that has echoes of similar issues. In R. v. MacIntosh, the Nova Scotia Court of Appeal considered a 14-year delay in a sexual abuse case against a man who had spent several years in India. In that case, authorities extradited Ernest Fenwick MacIntosh in 2007 despite laying charges in 1995. The appeal court ultimately quashed the convictions and entered a stay after finding MacIntosh hadn't fled the jurisdiction. "Once police locate the accused, it's their obligation to bring them back to Canada," says Brian Casey, one of the lawyers who acted for MacIntosh. "Certainly, they have to act and the Crown will be responsible for delays once they know where the accused is living unless they take steps to bring him back," he adds. LT With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. MORE DETAIL AND A WIDER SCOPE OF LEGAL CONTACT INFORMATION FOR ONTARIO THAN ANY OTHER SOURCE: • More than 27,000 lawyers • More than 9,000 law firms and corporate offices • Fax and telephone numbers, e-mail addresses, office locations and postal codes INCLUDES LISTS OF: • Federal and provincial judges • Federal courts, including a section for federal government departments, boards and commissions • Ontario courts and services, including a section for provincial government ministries, boards and commissions • The Institute of Law Clerks of Ontario • Small claims courts • Miscellaneous services for lawyers EARLY BIRD ORDERS MUST BE ACCOMPANIED BY CREDIT CARD PAYMENT ORDER YOUR COPY TODAY AND ENTER TO WIN AN iPAD MINI** * Offer expires December 15, 2013 • price is based on orders of 100 copies or more **available to new purchasers only Perfectbound • December 2013 SPECIAL PRICE $74 (Regular $77) L88804-626 Multiple copy discounts available Shipping & handling plus applicable taxes are extra EARLY BIRD MULTIPLE COPY DISCOUNTS 1-9 copies …………………………………………$74 10-49 copies ………………………………………$70.15 50-99 copies ……………………………………$67.84 100 or more copies ………………………$64.76 Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation Untitled-1 1 www.lawtimesnews.com 13-09-13 10:32 AM

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