R. v. Freelend, 2010 ABQB 799

Court of Queen ’ s Bench of Alberta Citation: R. v. Freelend, 2010 ABQB 799 Date: 20101214 Docket: 080054851S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Kenneth Wayne Freelend Appellant (Accused) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] The Appellant submits that the Learned Trial Judge erred in failing to find a breach of the Appellant’s s. 11(

b) Charter right to be tried within a reasonable time. [ 2 ] The Appellant was charged on December 31, 2007 with impaired driving and driving while his blood alcohol concentration exceeded 80 milligrams of alcohol per 100 millilitres of blood. He was convicted on May 13, 2010.

II. Background Facts [ 3 ] The time line for the prosecution of the charges against the Appellant is as follows: (

a) December 31, 2007: Appellant was charged. (

b) January 15, 2008: Information was sworn. (

c) February 14, 2008: Appellant’s first appearance in docket court. Plea of not guilty was entered and trial set to begin on September 19, 2008. (

d) September 19, 2008: Trial commenced and the Crown called the investigating officer in a voir dire . The defence argued that the Certificate of Analysis should be excluded from evidence on the basis that service of the Notice of Intention to produce the Certificate had not been proven. The issue was adjourned for written argument. (

e) November 3, 2008: The Trial Judge ruled the Certificate inadmissible but directed that the Crown could re-open its case and call the breath technician to give viva voce evidence. Counsel in discussion with the Court determined that no more than two hours would be required. Continuation set for December 3, 2008. (

f) November 21, 2008: Counsel for the Appellant sent a letter to the Crown requesting the maintenance and calibration logs of the Intoxylizer 5000C. (

g) December 3, 2008: Trial continuation date. The Crown indicated that it was ready to proceed with the balance of its case. The Appellant acknowledged his late demand for disclosure and requested an adjournment to seek disclosure of the material requested in his letter of November 21, 2008. An adjournment was granted. Continuation was set for January 29, 2009 for 90 minutes based on representations of Defence counsel as to time required. (

h) January 27, 2009: The Appellant filed a Charter notice with the Court, served on the Crown, seeking Charter relief for an alleged disclosure breach in relation to its request for “calibration and maintenance logs for the Intoxylizer 5000C”. (

i) January 29, 2009: Trial continuation date. The Court and the Crown had first seen the Charter notice that same day. Crown had reviewed the file and thought that the disclosure requested was the calibration and maintenance records of the Intoxilyzer 5000C which was part of the original disclosure package. Crown had shown Defence additional disclosure but Defence indicated that he did not want any of those documents. Crown did not have possession of the particular document requested by Defence.

The Crown further took the position that the document now being sought by the Appellant was a third party record requiring the Appellant to bring an O’Connor application and provide the Edmonton Police Service (“EPS”) with notice of the application. The Crown indicated that it was otherwise ready to continue the trial that day but was not prepared to waive the 14 day notice requirement for the Charter application. The trial was adjourned to February 10, 2009. (

j) February 10, 2009: Counsel appeared before the Court to obtain a date for argument on the issue of whether the records requested were first party or third party records. Following some discussion as to scheduling, Defence acceded to the possibility of dealing with both the Charter and the O’Connor issues on the same day if necessary. Continuation set for 150 minutes on May 7, 2009. (

k) May 7, 2009: Evidence was called by the Appellant and the Crown on the disclosure issue. The EPS had not been given notice of a potential O’Connor application. It appears from the evidence and discussions that the test record card printout, Intoxilyzer 5000C simulator alcohol solution log, Certificate of Annual Inspection and Certificate of Annual Maintenance were included in the standard disclosure package. Cst. Parker testified that the standard disclosure package had been put into place a couple of years prior.

However, Defence sought the calibration log upon which the Constable relied to record on the Intoxilyzer 5000C operational check sheet, which had been disclosed, the number of tests that had been conducted on that Intoxilyzer since the solution change. Cst. Krull testified that the

calibration log was not created as a part of the investigation into the accused’s case, and could not provide any information as to whether the Intoxilyzer 5000C was properly functioning during the testing of the individual accused. It had never been part of the EPS standard disclosure package. The Court ruled that it had genuine concern about the potential impact on the EPS, and directed adjournment with notice to the EPS and suggested counsel attend on May 25, 2009 with a continuation date assuming EPS wished to participate.

The trial then adjourned at the request of the Crown to May 25, 2009 so that EPS could be given notice of the proceedings. Counsel for the Appellant raised the issue of delay at this time. (

l) May 25, 2009: EPS asked for intervener status. Appellant’s counsel appeared by agent. The agent did not have instructions, so matter adjourned to June 8, 2009 to set date for argument. (

m) June 8, 2009: Counsel appeared before Trial Judge to set a date for argument. EPS requested a full day for hearing of its application for intervener status and the disclosure matter and the Court adjourned to November 18, 2009. At that point, EPS had not yet received a copy of the transcript from May 7, 2009. (

n) July 15, 2009: EPS indicated that they were going to make full argument with respect to the nature of the records sought. (

o) November 13, 2009: EPS produced the document requested, prior to the date of hearing, with the caveat that it maintained this was a third party record and reserved its right to argue it on future cases, and in no way conceded that this was Stinchcombe disclosure. The document was disclosed directly from EPS counsel to Defence counsel and not to the Crown at any point in time. Crown came into possession of it only by carbon copy of the letter. (

p) November 14, 2009: Counsel for the Appellant forwarded a letter to the Trial Judge with case law on issues of relevance, mootness and a

summary of evidence relevant to the issues. The Appellant further advised that he would be making an Askov application. (

q) November 18, 2009: Defence requested a declaration on the issue of whether the requested document was first party or third party disclosure. Crown noted that there was no proper notice of the Charter declaratory relief requested, the only notice being by way of letter to the Court dated November 14, 2009 and attached to a binder of cases, and not a notice of motion. Crown argued the Court should not make a ruling as EPS was not present to argue the issue and proper argument would simply result in further delay, and as the Appellant was already complaining of delay it would be an inappropriate test case.

The Court ruled that the issue as to whether the documents sought from the EPS were first party or third party records was moot. The Crown called its remaining evidence. The Appellant elected not to proceed with the defence case at that time and indicated that he wished to bring the s. 11(

b) application, but as there was no proper notice given of the application, the Appellant was granted an adjournment to bring his Askov application and to call evidence on the condition that intervening delay would be neutral in the assessment. The trial was adjourned to February 11, 2010. (

r) February 11, 2010: The Appellant called evidence on the Charter application and counsel made their submissions. The Court reserved its decision to February 26, 2010. (

s) February 26, 2010: The Trial Judge found no breach of the Appellant’s s. 11(

b) Charter right to be tried within a reasonable time. The Appellant was not in a position to call evidence on the trial proper as he was ill and unable to attend Court on that day. The trial was adjourned to May 13, 2010. (

t) May 13, 2010: The Appellant elected to call no evidence. Following very brief argument, he was found guilty of both charges and the first count was stayed. Reasons for Judgment of Trial Judge [ 4 ] The application before the Learned Trial Judge was a request to stay proceedings on the basis that the accused’s right to be tried within a reasonable time as guaranteed by s. 11(

b) of the Charter has been infringed ( R v. Askov , 1990 CanLII 45 (SCC) , [1990] 2 S.C.R. 1199).

[ 5 ] The Learned Trial Judge delivered his reasons on February 26, 2010. He carefully reviewed the timeline of events and considered the delays in the context of the criteria set out in the various authorities, with particular reference to the decision of the Supreme Court of Canada in R. v. Morin , 1992 CanLII 89 (SCC) , [1992] 1 S.C.R. 771. He made the following findings: . . . At this moment, it is 25 months since the Information was sworn. It is unclear exactly when this matter will be concluded. The length of the delay needs to be measured against those criteria identified by Justice Sopinka in Morin .

Any waiver of time periods must be unequivocal. Although there has been no specific waiver, the Accused only first raised serious concerns about delay on November 18, 2009, when he sought an adjournment to bring this application. Mr. Ziv has been vigorous, as he should be, in advancing full answer and defence on behalf of his client. There has been a legitimate dispute between Crown and defence and the Edmonton Police Service over the nature of the records sought.

Both the Crown and the Edmonton Police Service were acting properly when they advanced their arguments over the appropriate method of protection, i.e., Stinchcombe versus O’Connor . Defence counsel may have acquiesced in making a selection of continuation days, but it cannot [be] said that those actions amounted to waiver. However, much of the delay was occasioned by the legitimate disclosure dispute. . .. It is fair to say that the time between February 14, 2008 and September 19, 2008 is neutral and does not count against the parties on the reasonableness assessment.

Delays attributable to the Accused or the Crown, although these matters may be dealt with separately, in the circumstances it is proper to consider them together... If there was any institutional delay here, and I am not satisfied there was, it has not created any real prejudice to the Accused. With respect to the prejudice, there is no doubt that prejudice generally in any criminal proceeding can be presumed. There is the fact of the charge, publicity, if any, the stigma in the community, and the costs of the proceedings. Such prejudice occurs to everyone charged with an offence.

The prejudice here is no greater to this Accused than to any other accused. Here, in my view, there is no prejudice to the Accused in any of the delay. The Accused’s right to a fair trial must be balanced against society’s interest in having matters determined. The Supreme Court of Canada has established a framework to determine whether delay is unreasonable. There is only one obvious question: How long is too long? The delays in this case and future delays are not, having regard to all of the circumstances, in my view, too long. Accordingly, I find the Applicant’s s. 11(

b) rights have not been infringed, and this matter will continue. Issues [ 6 ] The Appellant identifies three issues: (

a) Did the Learned Trial Judge err in finding no breach of the Appellant’s s. 11(

b) Charter right? (

b) Did the Learned Trial Judge err in not giving sufficient reasons? (

c) Did the Learned Trial Judge err in not determining whether the documents requested by the Appellant were first party or third party documents? III. Standard of Review [ 7 ] The standard of review on an issue of law is one of correctness. Whether s. 11(

b) of an accused’s Charter right to be tried within a reasonable time has been infringed is a question of law if there are no findings as to credibility and no facts in dispute. Therefore, the standard of review is correctness ( R. v. Conway , 1989 CanLII 66 (SCC) , [1989] 1 S.C.R. 1659 at para. 6 ).

[ 8 ] The standard of review regarding adequacy of reasons is whether the reasons are reasonably intelligible to the parties and provide the basis for meaningful appellate review of the correctness of the trial Judge's decision, having regard to the particular circumstances of the case ( R. v.

Sheppard , 2002 SCC 26 (CanLII) , [2002] 1 S.C.R. 869 at para. 55 ). [ 9 ] The reasonableness standard of review generally applies to discretionary decisions such as whether to pronounce on a moot point; a judge exercising discretion must act judicially, in accordance with established principles of law ( Elk Valley Coal Corp. v. United Mine Workers of America Local 1656 , 2009 ABCA 407 at para. 7 ). IV. Analysis 1. Did the Learned Trial Judge err in finding no breach of the Appellant’s s. 11(

b) Charter right to be tried within a reasonable time? [ 10 ] In Morin at para. 31 , the Supreme Court of Canada set out the general approach to a determination of whether there has been an unreasonable delay in a particular case. This approach requires “a judicial determination balancing the interests which the

section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. . .”. The Court acknowledged that some delay is inevitable and that the question is at what point does the delay become unreasonable. Sopinka J. stated that the factors to be considered in analysing how long is too long may be listed as follows: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused. [ 11 ] Sopinka J. continued: 32 The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, account must be taken of the interests which s. 11(

b) is designed to protect. ...the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. . . .The length of this period may be shortened by subtracting periods of delay that have been waived. It must then be determined whether this period is unreasonable having regard to the interests s. 11(

b) seeks to protect, the explanation for the delay and the prejudice to the accused. [ 12 ] On the issue of prejudice, the Court said that while prejudice to an accused can be inferred from a prolonged delay, where prejudice cannot be inferred and is not otherwise proven, “the basis for the enforcement of the individual right is seriously undermined”

(at para. 61). [ 13 ] The Court in Morin recognized that the societal interest in ensuring that one who transgresses the law is brought to trial and dealt with according to the law is necessarily adverse to the interests of the accused and there must be a balancing of those two opposing sets of interests.

However, the Court stated further that as “the seriousness of the offence increases so does the societal demand that the accused be brought to trial” (at para. 30). [ 14 ] It is necessary to consider the evidence adduced with respect to each of the factors outlined in Morin to determine whether the trial judge’s decision was correct. Length of Delay [ 15 ] The Appellant was charged with two offences on January 15, 2008. All of the trial evidence had been introduced by November 18, 2009. The total elapsed time from the date of the charge to the end of the trial was 22 months and 3 days.

The time to the hearing of the s. 11(

b) application was 25 months. In either case, the trial judge correctly decided that the length of time elapsed warrants examination by the Court as to the other factors set out in Morin . Waiver of Time Periods [ 16 ] If the accused has waived his right to complain, either by agreement or other conduct, then “this will either dispose of the matter or allow the period waived to be deducted” ( Morin at para. 37 ).

A waiver must be an advertent act and while an accused’s conduct in acquiescing to delays may be considered when looking at “actions of the accused”, it does not amount to a waiver unless it is clear and unequivocal, made with full knowledge of rights ( Morin at para. 38 ). [ 17 ] None of the actions by the Appellant at the time adjournments were requested or during any of the periods between scheduled Court appearances can be considered clear and unequivocal waivers by the Appellant of his right to be tried within a reasonable period of time.

Reasons for the Delay Inherent Time Requirements [ 18 ] The periods of time attributable to inherent time requirements are those periods normally required for a case to be processed, assuming the availability of adequate institutional resources. Those periods of time attributable to inherent time requirements are neutral and do not count against the Crown or the accused in a s. 11(

b) reasonableness assessment ( R. v. MacDougall , 1998 CanLII 763 (SCC) , [1998] 3 S.C.R. 45 at para. 44 ). All cases have inherent time requirements for the case to get into the system and be completed.

Inherent time requirements are not limited to commonplace delays which occur in every situation but may include delays due to extraordinary and unforeseeable events ( MacDougall at para. 45 ). [ 19 ] The Trial Judge held that the time between February 14, 2008 (the Appellant’s first appearance) and September 19, 2008 (the commencement of the trial), a period of about seven months, was attributable to inherent time requirements and did not count against either party on a reasonableness assessment. In my view, his finding in this respect was correct. [ 20 ] I would include a further period as inherent time.

In R. v. Schertzer , 2009 ONCA 742 , leave denied [2010] S.C.C.A. No. 3, at para. 114 the Ontario Court of Appeal held that ordinarily the time taken to complete the trial, including resolution of pre-trial motions, the hearing of evidence and, in a judge alone case, time while the decision is under reserve, is part of the inherent time requirements of the case.

[ 21 ] The Court reserved on the issue of the admissibility of the Certificate until November 3, 2008. There is no suggestion that this is other than inherent time. On that date the Court allowed the Crown to re-open its case to call a breath technician and the matter was set for two hours on December 3, 2008 which everyone anticipated would suffice for the completion of the trial. [ 22 ] Had the trial been completed on December 3, 2008, there would have been little to complain of in terms of delay.

The dates set to that point did not reflect any particular limits on institutional resources or other factors which would warrant examination. In my view, the time from February 14, 2008 to December 3, 2008 is properly considered to be inherent time. [ 23 ] I would also include as inherent time the time taken by the Learned Trial Judge to rule on the s. 11(

b) application being the delay from February 11, 2010 to February 26, 2010. [ 24 ] Deducting the inherent delay of approximately 10 months from the total elapsed time reduces the remaining length of time in question to approximately 12 to 15 months. [ 25 ] Arguably, some of the time spent on the disclosure request is also properly classified as inherent time as well ( Schertzer at para. 107 ) but I will address it with the benefit of the analysis of the other categories.

Actions of the Accused [ 26 ] While there was no waiver of time periods by the Appellant, it must be noted that he did not take any steps to bring applications forward on a timely basis during any periods of delay for the production of the additional documents sought from the Crown or with respect to whether the application required was in the nature of a Stinchombe or O’Connor application. For example, the Appellant waited until November 21, 2008, over 9 months from first appearance date, before requesting additional disclosure ostensibly required when the Court allowed the Crown to call the breath technician.

The late request by the Appellant resulted in an adjournment request by the Appellant on December 3, 2008, the date upon which the trial was scheduled to continue. [ 27 ] The Appellant argued that there was no reason for him to seek disclosure of the requested documents at an earlier time because he did not know that the Crown would be seeking to call the breath technician. The Crown argued that a properly functioning Intoxilyzer is relevant no matter how the Crown elects to call its case.

The Appellant conceded in argument that he believed from the outset that the Certificate of Analysis was defective and that he would be successful in having it excluded. Given that belief, the Appellant should not have been surprised to learn that the Crown would seek to call the breath technician, in which case the documents he later sought in disclosure would necessarily be relevant. Accordingly, it is somewhat disingenuous for the Appellant to now suggest that he had no idea that those documents were or would become relevant. [ 28 ] In R. v. Ryz , 2008 ABCA 28 , leave denied [2008] S.C.C.A.

No. 139, the Court of Appeal commented: 28 ...While the defence is entitled to wide ranging disclosure of documents, if the defence wants documents that the Crown has not produced, and that are not obviously of interest, the defence has an obligation to say so in a timely manner, and to bring promptly any court applications when the documents are in the hands of third parties.

When the documents are not requested until over four years after the initial Crown disclosure, the Crown cannot fairly be charged with delay. [ 29 ] Further, it was not until January 27, 2009, two days before the next scheduled trial continuation date, that the Appellant filed a Charter notice seeking relief for an alleged breach of the Crown’s disclosure obligations.

Once again, this necessitated an adjournment and the parties attended again on February 10, 2009 for the purpose of setting a date for argument on whether the documents sought by the Appellant were first party records or third party records. [ 30 ] The period of delay from December 3, 2008 to February 10, 2009 cannot be attributed solely to the actions of the Appellant, since there appears to have been a genuine miscommunication as to the document sought by the Appellant.

As late as January 29, 2009, the Crown was of the view that it had disclosed the document sought, as part of the standard disclosure package it received from EPS. A

review of the proceedings reveals that the terminology used to refer to the various maintenance and calibration logs could reasonably lead to this confusion. However, the Appellant in filing the Charter notice for disclosure breach two days prior to the January 29, 2009 hearing could have expected that this would result in a further adjournment to at least 14 days from the date of the notice. In fact, the matter was adjourned to February 10, 2009.

In my view, due to the late disclosure request, the genuine confusion, and the late Charter notice, most of the December 3, 2008 to February 10, 2009 period should be characterized as neutral, with around two weeks of this period attributed to the late notice of the Appellant.

The remaining period in question deducting this time is therefore around 10 to 13 months. [ 31 ] Although on February 10, 2009 Defence acceded to the possibility of dealing with both the Charter and the O’Connor issues on the same day if necessary when discussing a date for argument on the issue of whether the records requested were first party or third party records, EPS had not been given notice of a potential O’Connor application by the date set for hearing evidence on the motion, being May 7, 2009.

The Court ruled that it had genuine concern about the potential impact on the EPS, and directed adjournment with notice to the EPS and suggested counsel attend on May 25, 2009 with a continuation date assuming EPS wished to participate. The trial then adjourned at the request of the Crown to May 25, 2009 so that EPS could be given notice of the proceedings. [ 32 ] The Appellant argued strenuously that the Crown had an obligation to assist the Appellant in seeking the document from the EPS.

Indeed, the Court of Appeal in Ryz held at para. 34 that cooperation and assistance by the Crown in the production of third party records is to be encouraged, especially where an accused is unrepresented which was not the case here. However, the procedure contemplated in O’Connor involves the accused giving notice to third parties. Here, the Crown pointed out on February 10, 2009 the efficiencies which could be gained by dealing with the Charter and O’Connor issues on the same day if necessary.

Had the EPS been given notice prior to the date for continuation, May 7, 2009, the adjournment to May 25, 2009 for the purpose of setting another date would likely have been unnecessary. Further, counsel for the Appellant did not appear on May 25, 2009 and his agent had no instructions, requiring the matter to be adjourned to June 8, 2009 to set a new date for argument. [ 33 ] In my view, the period from May 7, 2009 to June 8, 2009 was largely due to the Appellant’s failure to give earlier notice to the EPS and the appearance of an agent without instructions.

This reduces the period in question to around 9 to 12 months. [ 34 ] One final period is attributable to the actions of the Appellant. On November 18, 2009, the Appellant elected not to proceed with the defence case at that time but rather requested an adjournment so as to bring his s. 11(

b) application, for which no proper notice had been given. The Appellant was granted an adjournment to bring his application and to call evidence on the condition that intervening delay would be neutral in the assessment and the trial was adjourned to February 11, 2010. In my view, the conditions attached to that adjournment do not bind this Court in terms of categorization of that time period. However, once again the Appellant could have provided notice of the s. 11(

b) application so as to avoid another adjournment and therefore, if the period of delay from November 18, 2009 to February 11, 2010 is not inherent time, then in my view it is attributable to the actions of the Appellant. This reduces the period in question to 9 months. [ 35 ] While the actions of the Appellant do not amount to a formal waiver, the Appellant’s actions must be considered when determining the reasonableness of the delay. Actions of the Crown [ 36 ] The Court in Morin noted at para. 46 that this factor does not serve to assign blame.

It serves rather as a means whereby actions of the Crown which delay the trial may be investigated. Such actions include adjournments requested by the Crown and failure or delay in disclosure.

Although there may be nothing wrong with the Crown’s action, such delays cannot be relied upon by the Crown to explain away delay that is otherwise unreasonable. [ 37 ] The Crown argued that the disclosure dispute from December 3, 2008 to November 14, 2009 should not count against the Crown because Defence counsel did not ask for the disclosure until 11 months after the Accused was charged, there was genuine and reasonable confusion about what was requested, and the delays were caused by difficulties in scheduling, the request by the EPS to be an intervener, the request by Crown and Defence to call evidence on the issue, and the complexity of the issue. [ 38 ] It was not until January 29, 2009, when it became clear to the Crown which document it was that the Appellant was seeking,

and that it was not part of the standard disclosure package, that the issue of disclosure of the document in question was truly engaged.

The Crown was not in possession of the document at that time, and rightly anticipated that the EPS would take issue with a ruling that it would be disclosed as part of the standard package in the normal course, i.e. as part of the Stinchcombe obligation of the Crown. [ 39 ] The Appellant argues that if the Learned Trial Judge had ultimately ruled that the document in question was subject to the Crown’s Stinchcombe disclosure obligation, this would have had a bearing on the assessment of the delay. [ 40 ] In R. v.

Yelle , 2006 ABCA 160 , the Court of Appeal rejected the trial judge’s focus on a 350 day period during which the Crown pursued a prohibition application to prevent a re-hearing of a Charter argument. The trial judge had found the prohibition application was misguided, doomed to fail and caused an unnecessary delay for which the Crown was responsible.

The Court of Appeal noted that the Crown brought the application within a reasonable time, pursued it expeditiously and in good faith. [ 41 ] Even assuming for the sake of argument that the EPS would ultimately have failed to persuade the Court that the document in question was a third party record and not subject to disclosure under O’Connor , and that the Crown should therefore be considered in this context indivisible, in my view none of the time period in question should be attributed to the Crown.

Limits on Institutional Resources [ 42 ] Institutional delay “is the period that starts to run when the parties are ready for trial if the system cannot accommodate them”. The parties were ready for trial on September 19, 2008 but the trial could not be completed on that date because an issue arose prompting written argument and a determination as to whether the Crown would be entitled to re-open its case and call viva voce evidence. [ 43 ] In Yelle , the Court of Appeal stated: 29 Unfortunately, mid-trial adjournments are a common experience.

For a variety of reasons, many trials are unable to be completed on time and have to be adjourned. This appears to have been one of those cases, for even if the trial had not been interrupted by the prohibition application, it could not have been completed within the time allotted. . . [ 44 ] The one period which does raise an issue is the June 8, 2009 to November 18, 2009 delay which was necessitated by the anticipated need for a full day hearing on the third party/ O’Connor issue.

In my view, three months would not have been unreasonable, which would leave a two month period of institutional delay. [ 45 ] In my view, other than this two month institutional delay, the parties were able to secure relatively early court dates following each adjournment, despite having to accommodate the schedules of the Court, counsel for the Appellant, Crown counsel and, at times, counsel for the EPS. The need for a mid-trial adjournment was not an unreasonable delay attributable to the Crown or the institution.

Other Reasons for Delay [ 46 ] As mentioned above, some of the delay prior to January 29, 2009 resulted from genuine confusion as to the actual document in question. [ 47 ] The delay from February 26, 2010 to May 13, 2010 is attributable to the illness of accused. Characterization of the Delay relating to the Disclosure Issue

[ 48 ] When analysing the various steps taken in this case between the trial continuation date of December 3, 2008 and the end of the Crown’s case (and, as it turned out, the completion of the trial evidence) on November 14, 2009, it appears that the bulk of the delay was caused by steps necessitated by the disclosure issue, which required evidence to be called and notice to be given to the EPS. It must be noted that the Crown had its final witness present on December 3, 2008 and was in a position to call its final witness and conclude its case on that date, 2½ months after the trial began.

The Crown was also prepared to conclude its case on the next scheduled date of January 29, 2009, but the Appellant sought and obtained an adjournment on that date. [ 49 ] The Trial Judge found that the time frame between December 2008 and November 2009 resulted from “a legitimate dispute between Crown and defence and the EPS over the nature of the records sought.” He determined that the Crown and the EPS were acting properly and accordingly, the delay should not be attributable to the Crown in a reasonableness assessment. [ 50 ] In my view, the Trial Judge was correct in this determination.

The delay between December 3, 2008 and November 14, 2009 appears to have been caused by a combination of factors including: · genuine confusion with respect to the disclosure sought; · the necessity for the Crown and the Appellant to call evidence on the disclosure issue; · the request by the EPS to be granted intervener status; · the need to accommodate the schedules of all parties in scheduling application dates and trial continuation dates. [ 51 ] The dispute over disclosure added a level of complexity to the case that resulted in the delays and cannot be attributable to the Crown or the Appellant. [ 52 ] While some portion of the delay from June 2009 to November 2009 presumably might have been avoided by earlier provision of the document by the EPS to the Appellant, in my view the fact that it was provided in November 2009 renders the Appellant’s position no more compelling than if the EPS had failed to persuade the Court of the merits of its position on November 14, 2009.

Therefore, with the exception of the time periods otherwise classified above, I would categorize the December 2008 to November 2009 period as inherent in the very particular circumstances of this case. Prejudice to the Accused [ 53 ] The Appellant testified on the issue of prejudice. The Trial Judge summarized his evidence as follows: He indicated that the proceedings had been very stressful, particularly on those days approaching actual substantive proceedings. He testified that he has difficulty sleeping, he is taking anti-depressants and sleeping medications.

His work circumstances as a city firefighter are difficult and he is somewhat ostracized by his co-workers, and apparently one of the investigating officers in the matter has a child that attends the same school as a child of the Accused. [ 54 ] The Trial Judge took note of the fact that the Appellant had never been in custody on the matter nor subject to any judicial interim release conditions. Further, the matter had not been reported in the media. [ 55 ] The Trial Judge found that the prejudice described by the Appellant was occasioned by the fact that he was charged.

There was no evidence to indicate that the delays in completing the trial affected the Appellant’s ability to make full answer and defence. In R.

v. Neil , 2005 ABCA 17 , the Court of Appeal confirmed the necessity of a finding of prejudice in order for a stay to be considered (see also Yelle at para. 23 ). The Trial Judge found that there was no prejudice that resulted from the delay and his finding in that respect is supported by the evidence. He did not err in so finding. Societal Interest v.

Interests of the Accused [ 56 ] In Morin , the Court affirmed the obligation to weigh the societal interests in ensuring that those who transgress the law are brought to trial and dealt with according to law, that accused are treated humanely and fairly which aligns with the interests of the individual accused in prompt adjudication (at para. 29). [ 57 ] The Courts have consistently emphasized the societal interest in both preventing members of society from driving while impaired and punishing those who do so (see, for example R. v. Schell (1979), 1979 ABCA 292 (CanLII) , 50 C.C.C. (2d) 532 (Alta.C.A.), R. v.

Thomsen , 1988 CanLII 73 (SCC) , [1988] 1 S.C.R. 640 and R. v. Orbanski , 2005 SCC 37 , [2005] 2 S.C.R. 3). [ 58 ] The Supreme Court in Morin at para. 27 held that a court must determine whether the length of time from the date of charge to the date of trial is unreasonable having regard to the interests s. 11(

b) seeks to protect, the explanation for the delay and the prejudice to the accused. [ 59 ] To the extent that there was any delay or prejudice, society’s interest in combatting the evil of impaired driving is of great importance and weighs heavily against the interests of the Appellant on the facts of this case. 2. Did the Learned Trial Judge Err in Not Giving Sufficient Reasons as to Why There Was No s. 11(

b) Violation? [ 60 ] The Appellant argues that the reasons given by the Learned Trial Judge did not properly address the question as to whether the delay was too long nor did they properly address the reasons why he rejected the evidence of prejudice given by the Appellant. [ 61 ] First, it must be noted that failure to provide reasons is not, of itself, a ground of appeal ( R. v.

Sheppard , at paras. 42 and 46 ). “If deficiencies in the reasons do not, in a particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention . . .” ( Sheppard at para. 25 ). Further, “Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court's explanation in its own reasons is sufficient. There is no need in such a case for a new trial” ( Sheppard at para. 55 ). [ 62 ] Finally, in R. v.

Gagnon , 2006 SCC 17 (CanLII) , [2006] 1 S.C.R. 621 the Court stated that Reasons for Judgment are sufficient if they adequately demonstrate the rationale behind a trial judge’s conclusions (at para. 22). [ 63 ] In this case, it is my view that the Reasons of the Trial Judge were intelligible and clearly demonstrate his rationale for denying the application for a judicial stay. The majority of the delay was caused by a legitimate dispute between the parties, and the intervener EPS, over the nature of the records sought.

The Trial Judge found that this delay was not attributable to the parties and that the Appellant did not sustain any prejudice as a result of the delay in proceedings. [ 64 ] In my view, the decision of the Trial Judge was correct and his Reasons adequately demonstrate the rationale behind his conclusions. They have enabled appellate review. 3. Did the Learned Trial Judge Err in Not Determining Whether the Disclosure Requested Was First Party or Third Party Disclosure? [ 65 ] The Appellant argues that the Trial Judge erred by finding that the disclosure issue was moot on November 18, 2009 when

advised that the EPS had disclosed those items requested by the Appellant in advance of that date. He argues that the issue remained alive at that point as it was relevant to his application under s. 11(

b) and his argument that there was an unreasonable delay. That is, the Appellant suggests that if the record in question was determined to be a first party record, then the delay resulting from the disclosure dispute would have been attributable to the Crown. [ 66 ] Given the fact that the Appellant had received the disclosure he sought, the Trial Judge did not err in deeming the issue was moot.

In the context of the trial before him on impaired driving related offences, the issue relating to the nature of the disclosure sought was moot at the time the trial was scheduled to continue on November 18, 2009. [ 67 ] The Trial Judge exercised his discretion not to deal with the merits of the issue, accepting the Crown’s argument that a ruling with potential policy ramifications for the EPS should not be made without the benefit of the third party EPS’ argument. However, he did determine that the dispute was a legitimate disclosure dispute which finding was more germane to the s. 11(

b) analysis than an actual conclusion. This determination did not require a conclusion on the merits of the disclosure application and the Trial Judge, being familiar with the issues in dispute, was in a position to make it. [ 68 ] Even if the record had ultimately been determined to be a first party record, in order to be considered as a delay attributable to the Crown, it would have been necessary to find that there was an improper motive and inappropriate refusal or negligence by the Crown to produce a document or documents known to be proper first party disclosure documents. Such was not the case here.

The Crown and the EPS opposed the Appellant’s disclosure position in good faith. There is no evidence upon which to conclude otherwise. [ 69 ] While the law in this area is slowly being clarified (see for example R. v. Black , 2010 ABQB 461 , R. v. Lalic , 2010 ONCJ 564 , Duff v. Alberta (Attorney General) , 2010 ABPC 250 , R. v. Klug , 2010 ABPC 88 , R. v.

Scurr , 2008 ABQB 127 ), it was a genuine matter of contention in this case as to whether particular documents must be produced as first party disclosure documents by the Crown or third party disclosure documents by another party. [ 70 ] In my view, the issue was moot as it related to the issues before the Trial Judge at the time and he was correct in so holding. He did not err in declining to rule on the motion. V. Conclusion [ 71 ] The Learned Trial Judge did not err in his finding that the Appellant’s s. 11(

b) Charter right to be tried within a reasonable time was not breached, nor did he err by failing to give sufficient reasons for his decision. Finally, the Learned Trial Judge did not err in determining that the issue as to whether the disclosure requested by the Appellant was first party or third party disclosure was moot, nor in declining to rule on the motion. [ 72 ] The appeal is dismissed. Heard on the 2 nd day of December 2010. Dated at the City of Edmonton, Alberta this 14 th day of December 2010.

Eric F. Macklin J.C.Q.B.A. Appearances: Julie Snowdon Crown Prosecutors Office for the Respondent (Crown) Y. Rory Ziv Weary & Ziv for the Appellant (Accused)