R. v. Durocher, 2012 ABQB 705

Court of Queen ’ s Bench of Alberta Citation: R. v. Durocher, 2012 ABQB 705 Date: 20121116 Docket: 100458710Q1 Registry: Peace River Between: Her Majesty the Queen Crown - and - Cody Durocher Accused Restriction on Publication: Identification Ban – See the Criminal Code,

section 486.4. By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. Corrected judgment: A corrigendum was issued on January 4, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. Corrected judgment: A corrigendum was issued on December 4, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment.

Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. ______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice V.O. Ouellette _______________________________________________________ Table of Contents I. Introduction................................................................................................................ Page: 3 II.

Facts............................................................................................................................ Page: 3 A. Court Proceedings........................................................................................... Page: 4 B. Witnesses........................................................................................................ Page: 6 1. Cody Durocher................................................................................... Page: 6 2. SD....................................................................................................... Page: 7 3.

Constance O ’ Reilly............................................................................. Page: 7 III. Issue............................................................................................................................ Page: 8 IV. Position of the Accused............................................................................................... Page: 8 V. Position of the Crown.................................................................................................. Page: 8 VI.

The Law...................................................................................................................... Page: 9 A. The Charter ..................................................................................................... Page: 9 B.

Section 11(b)................................................................................................... Page: 9 1. Length of the delay........................................................................... Page: 11 2. Waiver of delay periods.................................................................... Page: 11

3. Reasons for the delay........................................................................ Page: 12 (

a) Inherent time requirements.................................................... Page: 12 (

b) Actions of the Accused......................................................... Page: 12 (

c) Actions of the Crown............................................................ Page: 12 (

d) Limits on institutional resources............................................ Page: 12 (

e) Other reasons for the delay................................................... Page: 13 4. Prejudice to the Accused................................................................... Page: 13 5. Balancing.......................................................................................... Page: 14 (

a) The purpose of s. 11(b)......................................................... Page: 14 (

b) Morin factors....................................................................... Page: 15 VII. Analysis.................................................................................................................... Page: 15 A. Length of the delay....................................................................................... Pa ge: 15 B. Waiver of the delay periods.......................................................................... Page: 16 C. Reasons for the delay.................................................................................... Page: 16 D.

Prejudice....................................................................................................... Page: 19 E. Balancing...................................................................................................... Page: 19 F. Position of the Crown.................................................................................... Page: 20 VIII. Conclusion................................................................................................................ Page: 22 I.

Introduction [ 1 ] Cody Durocher is charged with two counts of sexual assault, one count of choking and two counts of failing to keep the peace and be of good behaviour on or about April 16, 2010. His first appearance in court was on April 19, 2010 and the preliminary inquiry finally went ahead on February 23, 2012 after several adjournments.

After the preliminary inquiry, his trial date was set for October 31, 2012. [ 2 ] There was a delay of over 17 months from the scheduled date that the preliminary inquiry was to start, September 16, 2010, and the date the preliminary inquiry actually occurred, February 23, 2012. The total time period between the date of the charge and the trial is more than 30 months. [ 3 ] Cody Durocher made an application for a finding that his right to be tried within a reasonable time, as guaranteed under s. 11(

b) of the Canadian Charter of Rights and Freedom (“ Charter ”), has been breached and that a stay of proceedings pursuant to s. 24(1) of the Charter should be granted. [ 4 ] On November 1, 2012, I concluded that Cody Durocher’s right to have his trial within a reasonable time had been breached, and that the appropriate remedy was that I stay the five charges. At that time, I advised the defence and Crown that formal reasons for judgment in regards to this matter would likely be filed to expand on my reasoning and conclusions as expressed in court on that date. What follows are the formal reasons for judgment.

II. Facts [ 5 ] Cody Durocher is charged with serious offences, alleging that he committed a sexual assault on or about April 16, 2010. On October 15, 2012, he filed an application to be heard on October 31, 2012. Durocher’s application sought a finding that he had not been tried within a reasonable period of time as guaranteed by s.11(

b) of the Charter . [ 6 ] Both the Crown and Durocher stated that they would be relying on the transcripts of all of the court appearances between April 19, 2010 and February 23, 2012, when the preliminary inquiry finally went ahead. In addition to the transcripts of the proceedings, Durocher testified in support of the application on the issue of prejudice. The Crown also called two witnesses in response to the application, namely the complainant, SD, and Cst. Constance O’Reilly. The purpose stated by the Crown in calling SD was to explain the circumstances surrounding two Crown requests for adjournments. Cst.

O’Reilly, the lead investigator, was called to explain the delays in getting the DNA evidence, which the Crown had described as critical evidence or key evidence. It was also agreed that without the DNA evidence, the case would in effect be a “he said, she said” scenario. A. Court Proceedings [ 7 ] The following is a chronology of the pertinent court dates: April 19, 2010 - This was the accused’s first appearance and the matter was adjourned to April 26, 2010. April 26, 2010 - The proceedings were adjourned to May 3, 2010 to allow the accused an opportunity to review the disclosure provided.

May 3, 2010 - The proceedings were adjourned to September 16, 2010 for preliminary inquiry. The Crown stated that only 90 minutes would be needed for the preliminary inquiry. September 16, 2010 - The Crown sought an adjournment so that the DNA results could be received. The Crown indicated that the DNA results should be available by November 1, 2010. The provincial court judge asked when the request for the DNA testing had been made, to which the Crown advised June 15, 2010.

The provincial court judge asked for an explanation as to why the kit for the testing of the DNA had not been sent out on or about May 3, 2010. The Crown stated that the lead investigator, Cst. O’Reilly, had provided two reasons - the first, that she was on a course for two of the weeks in question and secondly, that she had another matter of equal gravity that was consuming part of her time. The provincial court judge said that he was inclined to make the next preliminary inquiry date peremptory on the Crown, but said that if the DNA evidence was not available, that it would not be of use to do so.

As a result, the provincial court judge declined to make the matter peremptory on the Crown, but stated that the accused would have a stronger argument the next time, as it relates to the matter taking too long to get to preliminary inquiry. The complainant was present on September 16, 2010 and was ordered by the court to return on January 6, 2011 for the preliminary inquiry. September 27, 2010 - The Crown requested an adjournment of the January 6, 2011 preliminary inquiry, although no reason for the request was provided on the record. The matter was adjourned to October 4, 2010.

October 4, 2010 - The Crown requested an adjournment of the January 6, 2011 preliminary inquiry date for two reasons. The first reason provided was that the complainant was pregnant and was due on January 6, 2011. The second reason was that a police witness was unavailable and on leave on January 6, 2011. As a result, a new preliminary inquiry date was scheduled for February 23, 2011. October 19, 2010 - The Crown indicated that the DNA results were not available. The Crown further stated that the preliminary inquiry would not be particularly long.

The provincial court judge sought to change the date which had been scheduled for preliminary inquiry on February 23, 2011, and rescheduled it for February 17, 2011, six days earlier.

February 17, 2011 - The Crown stated that “There is DNA that is forthcoming”. The Crown stated that it “has requested a DNA Warrant in order to establish a potential match”. The Crown stated that the DNA evidence would not be available until the DNA warrant had been completed and further analysis had been made, and that this would probably take about two months. After some discussion, it was agreed to still proceed with the preliminary inquiry by presenting the evidence of the complainant, knowing that the preliminary inquiry would not be completed because of the lack of the DNA evidence.

The Crown commenced its presentation of its evidence by playing the complainant’s statement which had been videotaped, pursuant to s. 715.1 of the Criminal Code . However, the Crown could not get their machine to play the videotaped statement and as a result, the Crown was forced to ask for an adjournment. On this same day, the Crown told the provincial court judge that Cst. O’Reilly had stated that she almost had the DNA warrant done. The preliminary inquiry was adjourned to July 7, 2011. July 7, 2011 - On this date, there was still no DNA evidence. The Crown informed the court that Cst.

O’Reilly indicated the DNA warrant was currently being drafted and that it would be executed in a few weeks. The Crown again attempted to enter the videotaped statement of the complainant, pursuant to s. 715.1 . Again, the Crown could not get the video equipment to properly function. The court suggested that the Crown could simply have the complainant testify viva voce in direct examination as opposed to seeking to have her evidence entered by way of the videotaped statement under s. 715.1 .

The Crown stated that they were not prepared to do this and that the procedure they had chosen was with the use of the s.715.1 videotaped statement. The result was that the preliminary inquiry was adjourned again to October 26, 2011. October 26, 2011 - The complainant was not present on that day and the court was informed that she was ill. There was no mention made as to whether or not the DNA evidence was available for October 26, 2011. The preliminary inquiry was then adjourned to February 23, 2012. February 23, 2012 - The preliminary inquiry proceeded and was completed.

October 31, 2012 - Following the committal of the accused on February 23, 2012, the matter was adjourned for trial in High Level, Alberta on October 31, 2012. B. Witnesses 1. Cody Durocher [ 8 ] Cody Durocher stated that this matter had a negative effect on himself and his family for the past 30 months. He stated that his son was born approximately two months before April 16th, 2010, and that he effectively lost the first two years of his son's life.

He also stated he had a two year old daughter who had all but forgotten him over that period of time. [ 9 ] Cody Durocher said that he was held at the Peace River Correctional Center while he was in custody between April, 2010 and October, 2012, and when there, he was always on a 23 hour lock up. [ 10 ] Cody Durocher indicated that before April 2010, he was not on any medications. He stated that he started taking medications approximately in June 2010 while in jail. The medication was to assist with issues of depression, stress, mood swings and mood stabilizers.

He testified that he is still on mood stabilizers and other medications. He stated that his medication affects his ability to testify. He stated that it is hard to remember things and although the medication helps him cope, he is often zoned out. The accused confirmed that these charges are not the only ones he is facing. He also confirmed that the stress was not only related to these charges or the other charges but having to do with everything.

That is his kids, loss of his job, and the 23 hour lock up in a 5 foot by 8 foot cell in segregation. [ 11 ] The release documents that have been entered as exhibits on the voir dire show that the accused was in jail on remand at the Peace River Correctional Centre from April 2010 to November 13th, 2010, a period of seven months. He was then on release from November 13th, 2010, until August 9, 2011 on these charges, which is a period of 10 months. That release was on strict conditions including a curfew, reporting conditions, complete abstention of alcohol and house arrest between 7 p.m. and 7 a.m. every day.

[ 12 ] The accused was returned to jail on August 9th, 2011, as a result of an order vacating release granted in Queen's Bench. He stayed in jail until October 26th, 2011, about two and a half months, when the Crown agreed to his release on strict conditions. The strict conditions again were effectively house arrest. He remained on release until July 16th, 2012, about nine and a half months, before he was remanded into custody awaiting sentence after a conviction on other matters. But for the other conviction, Mr.

Durocher confirmed that he would not have been in jail and his conditions of release would have probably continued until today. [ 13 ] Therefore, over the last 30 and a half months, or two and a half years, the accused has been in remand jail on 23 hour lock up for approximately 10 months. And when he has been on release in relation to these charges, for approximately 20 months, it has been on very strict release conditions. [ 14 ] I find Durocher to be generally credible, and he appears sincere in the area of the effects on his family and the issue of medication and its effects.

He was not truly shaken on cross examination. The issue that I had some concern with was the issue of Durocher stating he could not recall testifying in another matter earlier in the year. With respect to the evidence concerning the medication that he is on, the effects of the medication, the family aspects and 23 hour segregation lock up, the Crown did not call any rebuttal evidence. 2. SD [ 15 ] SD confirmed she had a child on January 9th, 2011. In regards to October 26th, 2011, she said she knew of that date and that she was not feeling well.

She said she had no contact with Constable O'Reilly in the days or weeks before October 26th, 2011. She said that on October 26th, she had a stomach flu that had persisted for four days or a week before October 26th. She could not remember if she saw a doctor in relation to this, but said she was not on medication at that time. She had trouble remembering events surrounding October 26th, 2011. [ 16 ] I found SD to be credible and believe she was trying her best to give us what was happening around the time in question. 3. Constance O’Reilly [ 17 ] Cst. Constance O'Reilly also testified in the voir dire .

She testified that she was the lead investigator on this file. She confirmed that the first DNA report, stating a hit to an unknown male, is dated September 22nd, 2010. She confirmed getting a letter with a fax date of September 22nd, 2010, but said that the actual report only arrived after that date. She believed the arrival date to be in early October 2010. She indicated that when she received the report dated September 22nd, 2010, she put it in her corporal's basket for review.

She said that she also started working on the information to obtain a warrant at that time by looking at which format to use. [ 18 ] The first report was eventually sent to the Crown's office on November 12th, 2010. This occurred after the corporal finally looked at the report on November 5th, 2010. It is agreed that the Crown sent the report to the accused's lawyer on November 15th, 2010. [ 19 ] Cst. O'Reilly confirmed that she did not actually prepare the Information to Obtain Warrant (ITO) until early October, 2011. That is more than one full year after getting the first report of a hit to an unknown male.

The reasons she gave for the delay of more than one year were that she was really busy in other duties, some absences for leave, some taking of courses, and some preparation for other trials. She stated she never went to her supervisors and that they never talked to her about why she was not getting the ITO. [ 20 ] Cst. O'Reilly agreed that had she given this case a higher priority, she could have done the ITO much sooner. [ 21 ] Cst.

O'Reilly said that when she finally decided to actually prepare the ITO in October of 2011, it was likely completed within one week, noting she also had other duties during this period of time. She indicated she then gave the draft ITO to her corporal, her sergeant, and staff sergeant for review, who in turn suggested corrections and changes. She said it probably took her about one week to make those corrections. Cst. O’Reilly confirmed that the ITO was finally sworn by her on November 3rd, 2011. On that very same day, she also obtained a DNA warrant for the accused.

[22] Cst. O'Reilly executed the DNA warrant on the accused at the Peace River Correctional Centre on November 8th, 2011. Shesaid that the sample taken by her was eventually placed in the exhibit locker at the RCMP detachment in High Level and remained thereuntil December 16th, 2011. She finally sent the DNA sample to the RCMP lab for testing on December 16, 2011. [23] The results of that testing were provided in a report dated January 27th, 2012, about six weeks from December 16th, whichincludes the Christmas holiday period.

When asked why she waited over five weeks to send the DNA sample for testing (November 8thto December 16th), she testified about looking at some kind of forms and that she was busy on other things. [24] Regarding the potential conversations with the Crown about the obtaining of the DNA warrant, Cst. O’Reilly did not recallgetting anything in writing from the Crown, but said there probably would have been talks. When she was asked about those talks, shecould not provide any detail. [25] I found Cst. O'Reilly to be generally credible.

However, I have concerns with the testimony about having talks with the Crownbut not being able to provide any kind of detail. In fact, she was not able to say for certain that she had those talks with the Crown. Moreimportantly her apparent evidence of "working" on the ITO as early as the fall of 2010 is not supported by her own testimony of beingtoo busy and having other very important duties. III. Issue [26] The issue is whether the delay in the prosecution and trial of the charges against Cody Durocher is unreasonable and contraryto s. 11(

b) of the Charter. IV. Position of the Accused [27] Cody Durocher argues that the total delay from the first appearance in April, 2010 to the trial in October, 2012, a period ofover 30 months, is unreasonable and contrary to his right to be tried within a reasonable time. More particularly, he argues that the delayresulting from the adjournment of the first preliminary inquiry date of September 16, 2010 and February 23, 2012, was unwarranted andas a result of the actions of the Crown. [28] The accused argues that this 17 month delay caused him significant prejudice. V.

Position of the Crown [29] The Crown did not provide any written brief of argument in relation to this stay of proceedings application. The Crown arguedthat the accused should not be allowed to proceed with his application because he failed to follow the procedures set out by the Court ofAppeal in R v Holt (1991), 1991 ABCA 268 , 117 AR 218 (ABCA). The Crown argued that the accused’s application shouldfail because he had not provided evidence regarding the state of affairs regarding institutional delays in comparable jurisdictions. Further,that the Crown had not been given 30 days notice of the s. 11(

b) stay application. [30] The Crown also argued that the accused should have made a request pursuant to s. 605 of the Criminal Code for a release ofthe exhibit for testing. [31] The Crown further argued, relying on R v Munoz, 2007 ABPC 328, and R v Valooran, 2012 ABPC 246, that a stay shouldnot be granted unless the delay in question amounted to abuse. [32] Lastly, the Crown argued that the court had at its disposal another option as stated in the Supreme Court of Canada in the caseof R v Nasogaluak, 2010 SCC 6, that an appropriate remedy for a Charter breach could also be a reduction in the sentence.

VI. The Law A. The Charter [33] The law in this matter and the Charter provisions is as follows.

Section 7 states: Everyone has the right to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [34]

Section 11 provides that: Any person charged with an offence has the right to... (b), to be tried within a reasonable time. [35] Section 24(1) of the Charter then goes on to say: Anyone whose rights or freedoms, as guaranteed by this Charter have been infringed or denied may apply to the court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. B.

Section 11(b) [36] The Supreme Court of Canada in R v Morin, (SCC), [1992] 1 SCR 771, set out the purposes of s. 11(

b) of theCharter and the approach to be used by courts in a s. 11(

b) analysis: 26 The primary purpose of s. 11(

b) is the protection of the individual rights of accused. A secondary interest of society as a whole has,however, been recognized by this Court. I will address each of these interests and their inter-action. 27 The individual rights which the

section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3)the right to a fair trial. 28 The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure tocriminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result frompre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings takeplace while evidence is available and fresh. 29 The secondary societal interest is most obvious when it parallels that of the accused.

Society as a whole has an interest in seeingthat the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoythe confidence of the public. As observed by Martin J. A. in R. v Beason: “Trials held within a reasonable time have an intrinsic value.The constitutional guarantee ensures to the benefit of society as a whole and, indeed, to the ultimate benefit of the accused...”.

In somecases, however, the accused has no interest in an early trial and society's interest will not parallel that of the accused. 30 There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of thisCourt recognized that the interests of the accused must be balanced by the interests of society in law enforcement.

This theme was pickedup in Askov in the reasons of Cory J. who referred to "a collective interest in ensuring that those who transgress the law are brought totrial and dealt with according to the law." As the seriousness of the offence increases so does the societal demand that the accused be

brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused ofserious crimes simply to clean up the docket. 31 The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, "It is axiomatic that some delay isinevitable. The question is, at what point does the delay become unreasonable?" While the Court has at times indicated otherwise, it isnow accepted that the factors to be considered in analyzing 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. These factors are substantially the same as those discussed by this Court in Smith, supra, at para. 1131 and in Askov, supra, at paras.1231-1232. [37] The Supreme Court also commented in R v Godin, 2009 SCC 26 at paragraph 18, that applying the factors set out in Morininevitably leads to a detailed examination of particular time periods and the reasons why certain delays occurred.

However, the SupremeCourt also cautioned that in undertaking this type of analysis, the Court should not lose sight of the issue that is at hand. [38] I will now deal with the law in relation to the four factors mentioned above. 1. Length of the delay [39] The time period to be examined is from the date of the charge to the end of the trial: Argentina v Mellino, (SCC), [1987] 1 SCR 536 at 548, R v Rahey, (SCC), [1987] 1 SCR 588 at 633, R v Kalanj, (SCC),[1989] 1 SCR 1594 at para 16. The law is not contested on this issue. 2.

Waiver of delay periods [40] The Supreme Court in Morin at set out the test for waiver as follows: 38 This Court has clearly stated that in order for an accused to waive his or her rights under s. 11(b), such waiver must be clear andunequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on thoserights. Waiver can be explicit or implicit. If the waiver is said to be implicit, the conduct of the accused must comply with the stringenttest for waiver set out above.

As Cory J. described it in Askov, supra, at p. 1228: ... there must be something in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood that

he or she had a s. 10(

b) guarantee, understood its nature and has waived the right provided by that guarantee. Waiver requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is notturned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. Suchconduct may be taken into account under the factor "actions of the accused" but it is not waiver. As I stated in Smith, supra, which wasadopted in Askov, supra, consent to a trial date can give rise to an inference of waiver. This will not be so if consent to a date amounts tomere acquiescence in the inevitable. 3. Reasons for the delay (

a) Inherent time requirements [41] The Supreme Court in Morin, at paragraph 40, recognized that some delay is to be expected in criminal cases. The inherenttime requirements do not count against either the Crown or the defence in assessing unreasonable delay. The inherent time requirementdelay is deducted from the overall period of delay: R v MacDougall, (SCC), [1998] 3 SCR 45 at para 44. (

b) Actions of the Accused [42] With respect to the actions of the accused, the Supreme Court in Morin, at paragraph 44, explains that what is of concern interms of this factor are the actions or inactions of an accused which are voluntarily taken and have caused delay. These actions mayinclude a change of counsel, challenging admissibility of seized evidence, challenging validity of wiretap authorization, adjournmentsnot amounting to waiver, and other actions. (

c) Actions of the Crown [43] As stated by the majority in Morin: 46 ...this factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated. Such actionsinclude adjournments requested by the Crown, failure or delay in disclosure, change of venue motions, etc. [44] If no satisfactory explanation as to the need for the adjournment or other delay is given, the Court is entitled to infer it wasunjustified: R v Smith, (SCC), [1989] 2 SCR 1120 at p 1133. (

d) Limits on institutional resources [45] The Supreme Court of Canada suggested in Askov that a six to eight-month period of institutional delay between committaland trial might be at the outside limit of what is reasonable. In Morin, the Supreme Court continued providing a guideline for acceptableinstitutional delay, and said the following: 55 In Askov, Cory J., after reviewing comparative statistics, suggested that a period in the range of 6 to 8 months between committaland trial would not be unreasonable.

Based on the foregoing, it is appropriate for this Court to suggest a period of institutional delay ofbetween 8 and 10 months as a guide to Provincial Courts. With respect to institutional delay after committal for trial, I would not departfrom the range of 6 to 8 months that was suggested in Askov. In such a case this institutional delay would be in addition to the delay priorto committal. This reflects the fact that after committal the system must cope with a different court with its special resource problems.

Itis therefore essential to take into account the inevitability of this additional institutional delay.

[46] The Court also stated: 53 The application of a guideline will also be influenced by the presence or absence of prejudice. If an accused is in custody or, whilenot in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptableinstitutional delay may be shortened to reflect the court's concern. On the other hand, in a case in which there is no prejudice or prejudiceis slight, the guideline may be applied to reflect this fact. (

e) Other reasons for the delay [47] The Supreme Court in Morin grouped "other" under this category, meaning delays which are not discussed in the first fourcategories. 4. Prejudice to the Accused [48] This factor means prejudice that an accused suffered as a result of the unreasonable delay and not the criminal proceedingsthemselves. The Supreme Court in R Conway, (SCC), [1989] 1 SCR 1659, stated: 19 ... the main purpose for the right to be tried within a reasonable time under s. 11(

b) of the Charter, namely, to minimize the adverseeffect on the person charged resulting from the pending disposition of an unresolved criminal charge.

The focus of the protection is "theimpairment or prejudice arising from the delay in processing or disposing of the charges against an accused and not the impairment orprejudice arising from the fact that he has been charged." The right recognizes that, with the passage of time, subjection to a criminal trialgives rise to restrictions on liberty, inconveniences and pressures detrimental to the mental and physical health of the individual. [49] The Supreme Court in Morin confirmed that prejudice may be inferred from prolonged delay and that the inference is morelikely to be drawn when the delay is longer: Morin at para 61.

The Supreme Court also went on in Morin to state: 63 The accused may rely on evidence tending to show prejudice to his or her liberty interest as a result of pre-trial incarceration orrestrictive bail conditions. Prejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage toreputation as a result of overlong exposure to "the vexations and vicissitudes of a pending criminal accusation", to use the words adoptedby Lamer J. in Mills, supra, at p. 919. The fact that the accused sought an early trial date will also be relevant.

Evidence may also beadduced to show that delay has prejudiced the accused's ability to make full answer and defence. [50] The Supreme Court readdressed this issue in R v Godin where they stressed that proof of actual prejudice to the right to makefull answer and defence is not required, as this is just one of three types of prejudice, all of which must be considered together with thelength of the delay and any explanations for those delays.

The other two types of prejudice to an accused's liberty, in terms of pretrialcustody or bail conditions and security of person, are those in the sense of being "free from stress and cloud of suspicion thataccompanies a criminal charge": Godin at paras 30, 31, and 38. 5. Balancing [51] A balancing act is required once all the factors have been analysed. The Supreme Court in Morin, states the following: 32 The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of theother factors...

It must then be determined whether this period is unreasonable having regard to the interest s. 11(

b) seeks to protect, theexplanation for the delay and the prejudice to the accused.

(

a) The purpose of s. 11(b) [ 52 ] To properly do the balancing, a court must first look at the purpose of s. 11(b). In Askov , at page 474, the Supreme Court stated: Like other specific guarantees provided by s. 11, this paragraph is primarily concerned with an aspect of fundamental justice guaranteed by s. 7 of the Charter . It is a fundamental precept of our criminal law that every individual is presumed to be innocent until proven guilty.

It follows that on the same fundamental level of importance, all accused persons, each of whom is presumed to be innocent, should be given the opportunity to defend themselves at the earliest possible time. [ 53 ] Justice Sopinka in Morin talked about the primary purpose of s. 11(

b) as protecting individual rights of an accused: 28 Firstly, the right to security of the person by seeking to minimize anxiety, concern, and stigma of exposure to criminal proceedings.

Secondly, there is also the right to liberty by seeking to minimize exposure and restrictions of liberty which result from pretrial incarceration or restrictive bail conditions; and lastly, the right to a fair trial, and that means by attempting to ensure that proceedings take place while evidence is available and fresh. [ 54 ] There is the secondary interest in the balancing act that the court must do, and that is of society as a whole, which is also recognized in s. 11(b). Sometimes it parallels the accused's individual rights and sometimes it is contrary to it.

The Court in Morin at paragraph 29 stated that societal interest is most obvious when it parallels that of the accused, in context of s. 7 and 11(b). The parallel interests are those that anybody accused of crime should be treated humanely and fairly, and that they be brought not to any trial but to a fair trial. Trials held within a reasonable time have that intrinsic value. Fundamentally, a trial also incorporates the presumption of innocence: Askov at p 474. (

b) Morin factors [ 55 ] The Morin factors in relation to balancing are outlined at paragraph 32 in Morin . The Supreme Court directs that balancing requires an examination of the length of delay and an evaluation in light of the factors: any waiver, inherent times, delays, reasons for delay, and prejudice. The degree of prejudice, or the absence of it, is an important factor in determining the length of institutional delay that will be tolerated: Morin at para 64 . [ 56 ] In

summary, in balancing the primary interest of the individual with the adverse aspect of the societal interest, the court has to take into account, the length of the delay, the complexity of the case, and the seriousness of the charge. Naturally, societal interest will increase with the seriousness of the charge. VII. Analysis [ 57 ] I will now apply the evidence and facts of this case to the factors as set out by the Supreme Court of Canada as outlined above. I will then complete the balancing analysis required. Finally, I will respond to the positions of the Crown as noted above. A.

Length of the delay [ 58 ] The delay in this case is over 30 months. The Crown has conceded that this length of delay warrants inquiry. Justice McLachlin described a 34 month delay as prima facie excessive, "indeed it is grossly excessive": Askov at para 141. In Godin , the Supreme Court of Canada said that a delay of 30 months is striking: Godin at para 30 .

B. Waiver of the delay periods [ 59 ] The Crown agrees and concedes that there have not been any waivers of time periods. This is very clear from reading the transcripts and the comments of the Provincial Court Judge on this subject on a number of occasions. C. Reasons for the delay [ 60 ] The third factor is the reasons for delay, which include the inherent time requirements of the case, actions of the accused, actions of the Crown, limits on institutional resources, and other reasons for delay.

The Crown agrees and concedes that the facts of this case result in three of the above categories as being not applicable. The Crown agrees that the accused did not do anything to cause the delay and that this is not an institutional resource issue.

Lastly, there are no other reasons for the delay except inherent time requirements and the actions of the Crown. [ 61 ] There is agreement between Crown and the accused that the delay from the first appearance to the first date set for the preliminary inquiry in September 2010 (four months), and also in relation to the second delay, that is from committal in February of 2012 to trial, October 31st, 2012, (eight and a half months), are both inherent time requirements and within the guidelines set out in Askov .

I agree. [ 62 ] The next factor, the most crucial one in this case, is what role, if any, did the Crown play in the delays that are not inherent delays. The timeline that must be examined is from the first Crown request for adjournment of the preliminary inquiry in September 2010 to the actual preliminary inquiry occurring in February 2012. That is a passage of time of over 17 months. [ 63 ] In order to determine the reasons for the delay, the Court must look at what actually happened. On September 16th, 2010 the Crown requested an adjournment.

The first report regarding the DNA (hit to unknown male) is dated September 22nd, 2010. That is six days after the preliminary inquiry was to take place on September 16th, 2010. However, there was a delay from May 3rd to June 15th, 2010, that is 43 days, in sending the samples for testing. The explanation which was sought by the Provincial Court Judge was found to be unreasonable and unacceptable. I agree.

The excuses given are also unreasonable and unacceptable. [ 64 ] We may never know, but had the samples actually been sent on May 3rd, 2010, it is quite possible that the results would have been available for that preliminary inquiry on September 16th, 2010. We know that there was a 43 day period in which the samples could have been provided sooner. Therefore, if the samples had been sent out on the first reasonable date (May 3rd, 2010), the report may have been received on August 9th, 2010 instead of September 22 nd .

Further, we also know that the DNA warrant was granted on the same day that the ITO was sworn, that is November 3rd, 2011. The warrant was executed within five days. That is a reasonable delay to execute the warrant. We also now know that it took less than six weeks from when the samples were actually sent on December 16th, 2011, to when the report was provided on January 27th, 2012. No doubt, a certain amount of that time delay of about six weeks was due to the Christmas holiday season.

Having said that, it is possible that had the sample been sent in a timely fashion on May 3rd and had the Crown's agent done their job in a timely fashion, the final report would have been available for the preliminary inquiry on September 16th, 2011.

That is allowing five days to execute the warrant and approximately a month to get the final report. [ 65 ] Therefore, the delay period between September 10th, 2010 and January 6th, 2011 was as a result of the actions of the Crown or its agents actions, or their failure to act in a timely fashion. [ 66 ] As we now know, the preliminary inquiry scheduled for January 6th, 2011 was eventually adjourned to February 17th, 2011. Was this five-week period of delay caused by the Crown without good reason?

The answer is, yes. [ 67 ] The Crown could have argued this delay was not their fault because the complainant was having a baby. If that was the only reason for the adjournment, I would agree. However, it is not. The Crown stated there were two reasons for the January 6th, 2011 adjournment of the preliminary inquiry. One was that the complainant was due on January 4th, 2011. The other was that a police officer witness was going to be on leave. The date on which that officer was required to be a witness was known as early as October 4th, 2010.

The Provincial Court Judge on that day observed that fact when the Crown sought the adjournment some three months before January 6, 2011. We do not know if arrangements to change the police officer’s leave were made or even attempted. On October 19th, 2010, the Crown again confirmed that the preliminary inquiry would not take "particularly long."

[ 68 ] Therefore, the question is whether the delay between January 6th, 2011 and February 17th, 2011 was caused by the Crown. The answer is yes. We now know that the first DNA report was dated September 22th, 2010 and received in early October, 2010. There was an unexplained delay by the police in reviewing the report before sending it to the Crown. The Crown was only given the report on November 12th, 2010. We now know that by the time January 6th, 2011 or even February 17th, 2011 arrived, the Crown was not ready to proceed because it still did not have the final DNA report.

Irrespective of the complainant being due around that time, the matter would not have proceeded because the Crown would have made the same representations that were made on February 17th 2011 because the facts did not change between January 6th and February 17th, 2011. [ 69 ] The next delay period is February 17th, 2011 to July 7th, 2011. If this delay was only because of the malfunction of the playing of that DVD video, then that could likely be forgiven at least once.

But even if the DVD had worked, the Crown still required an adjournment to complete the preliminary inquiry because, as has been stated earlier, it still did not have the final DNA results. [ 70 ] What is troublesome are the Crown representations to the Provincial Court Judge on February 17th, 2011. The Crown said “the DNA was forthcoming” and the Crown “has requested a DNA warrant”. That was not true. We now know that the ITO to obtain the warrant was sworn on November 3rd, 2011, some eight months later.

I do not know if that representation was made intentionally to try to mislead or deceive the Court or whether the inaccurate statement was just reckless or careless. I have no idea whether the representation may have been improperly provided by Cst. O'Reilly to the Crown or the Crown did not complete its background checks. In any event, it was clear that a split preliminary inquiry would have occurred even if the video machine had worked, which it did not. Therefore, the delay period of February 17th to July 7th, 2011 falls entirely at the Crown's feet.

Further, the reason for the representations made and the resulting adjournment are suspect. [ 71 ] The next period is July 7th, 2011 to October 26th, 2011. On July 7, 2011, the Crown again requested an adjournment. There were two reasons given. The first was that the Crown could not present its evidence as contained in the s. 715.1 video because, again, they could not get their machine to work. The Provincial Court Judge rightly said that this was the Crown's problem. The second reason was that the final DNA results still had not been provided.

The Crown stated that its agent stated the DNA warrant "would be executed in a few weeks". We now know that did not happen. [ 72 ] More importantly, the Crown’s agent failed to obtain a body tissue sample from the accused even prior to the next date set for the preliminary inquiry, which was October 26th, 2011. Were the representations that sampling would be done in the next few weeks knowingly empty promises, or what was the purpose? Was it to persuade the court to grant an adjournment on the promise of something happening when it clearly was not going to happen? I do not know.

I find that this period of delay falls entirely at the feet of the Crown, not only for the reason of the lack of DNA evidence but also the video machine, which the Provincial Court Judge properly informed the Crown to make work if they wished to use the evidence. The Provincial Court even gave the option to the Crown to try to present its case in another fashion. The Crown chose not to do that. [ 73 ] The next period is October 26th, 2011 to February 13th, 2012. The Crown might argue that this adjournment is not their fault because the complainant was ill. I do not agree.

Whether or not the complainant had been present for that preliminary inquiry on October 26th, 2011, the preliminary inquiry could not have concluded on that day because the Crown had not even requested a DNA warrant prior to that day. The facts are that the ITO was not sworn until November 3rd, 2011. Further, the results were not even available, that is, the final report, until January 26th, 2012. The earliest that this preliminary inquiry could have been concluded was after January 26th, 2012. This is less than one month before the date when the preliminary inquiry was actually completed: February 13th, 2012.

I conclude that this entire period of delay prior to the preliminary inquiry is entirely the responsibility of the Crown and its apparent failure to take this matter seriously and engage in the necessary steps in a timely fashion. [ 74 ] In

summary, the entire delay period between September 16th, 2010 and February 23rd, 2012, was caused by and was a result of Crown action or inaction. Some of the adjournments were obtained on the basis of clearly incorrect representations. The actual delays were a result of the Crown or its agents not doing their job. The adjournments and resulting delay were unjustified. D. Prejudice [ 75 ] The Supreme Court in Morin tells us that prejudice may be inferred from prolonged delay, and the longer the delay the more likely the inference. The delay in this case of 17 months is very prolonged. There is prejudice here, not only because of the prolonged

delay but the reasons for those delay. Although the accused was not in 23 hour lock up for the entire delay period, he was still under very strict release conditions while not in jail. The Supreme Court in Morin also said that evidence of restrictive bail conditions causes prejudice. [ 76 ] In addition, there is the evidence of the accused as to prejudice. I agree with the Crown that the accused’s problems and issues may not all stem from these charges.

However, since I have been informed by the Crown that the other charges he is facing or has already been convicted of are similar in nature, dealing with similar DNA issues, it cannot be said that these charges would not have contributed to his problems, as the various allegations he faces apparently mirror each other. [ 77 ] The problems Cody Durocher has described of prescription medication, depression, mood swings and stress would likely be there, at least in part, with or without an unreasonable delay.

However, these problems did not improve during the delay period and appeared to get worse. [ 78 ] Prejudice also occurs, as stated earlier, with the passage of time; that is, memories fade. This became fairly clear and evident from the testimony of both the complainant herself and the accused in the voir dire . Memories do not improve with the passage of time. E. Balancing [ 79 ] I will now balance these factors. There is no set calculation that determines when a delay becomes unreasonable and, as a result, contrary to s. 11(

b) of the Charter . What is needed is a judicial balancing act that strives to protect the Charter and uphold the rule of law, while at the same time consider the important community interest in bringing a case to trial in a timely fashion. [ 80 ] In this case, the overall delay is significant and as stated by Justice McLachlin in Morin , this delay could be said to be grossly excessive. Further, although the charges are serious, this was not a complex case.

This was in fact conceded by the Crown and reflected in the estimates that the total preliminary inquiry time required was only 90 minutes. [ 81 ] I will not repeat all of my findings and analysis of the factors as noted above. They can be summarized as follows:

a) The length of the delay in this case is striking and grossly excessive. The delay period in this case (17 months) is in fact greater than the delay occasioned by inherent time requirements of getting a matter to trial (13 months).

b) The evidence shows that the only reason for the 17 month delay was the actions or non-actions of the Crown and/or its agents, actions which were entirely within their control.

c) There is also evidence of prejudice to the accused. Firstly, I am satisfied that the length of this delay, in of itself, results in an inference of prejudice, as the Supreme Court of Canada stated in Morin . I am satisfied that this is one of those cases that requires an inference of prejudice to be made, as a result of the very prolonged delay of 17 months.

Further, there is evidence of prejudice as it relates to the significant amount of time spent by the accused in custody while awaiting the completion of the preliminary inquiry and trial, and also the very strict release conditions while not in actual custody. [ 82 ] Therefore, balancing of all of the above factors in conjunction with the societal interest in ensuring that accused persons be brought to trial, the delay in this case was unreasonable and unjustified. F. Position of the Crown [ 83 ] The Crown’s argument that the accused’s application for a declaration of a breach of s. 11(

b) of the Charter should not proceed because the procedure as set out in Holt was not followed is unfounded. The Crown conceded firstly that the 30 month delay in

this case warranted an inquiry or review. [84] With respect to the argument that the Court of Appeal in Holt stated that every stay application, as it relates to an alleged s.11(

b) Charter breach, requires admissible evidence in comparable jurisdictions is without merit. The Court of Appeal in Holt wasrepeating what had been earlier said in Askov regarding institutional delays. [85] Where the reasons for the delays in question have nothing to do with institutional or inherent delays, then there is norequirement to provide evidence of what the institutional delays may be in comparable jurisdictions because it is irrelevant to theanalysis of whether the delay is unreasonable.

Holt dealt with institutional delay, that is delay that was not caused by either the Crown orthe accused. [86] The Crown’s other argument, that Holt stands for the proposition that an accused must give 30 days notice, is not founded.The Court of Appeal in Holt made the comments regarding notice in obiter. They were procedural suggestions to provide for “a moreorderly resolution of these delay cases”: Holt at para 12. Although advanced notice would be preferable, its absence is not fatal.

Advancenotice would be clearly beneficial in case of institutional delay, in order to allow the gathering of evidence or information from otherjurisdictions. That is not this case. Lastly, I agree with the analysis made by Brooker J in R v Fung, 2007 ABQB 527 at paras 31 - 40,regarding the application of Holt. [87] The Crown’s argument that the accused could have requested an exhibit for testing pursuant to s. 605 of the Criminal Code isunfounded.

It is unfounded because the Crown told the provincial court judge on numerous occasions that the exhibit samples hadalready been sent away for testing and that the results should be available within a short period of time. It is not reasonable for theCrown to attempt to shift the blame for the delay in obtaining the DNA testing, when it was the Crown’s position that this evidence wascritical or key to its case, and that it had taken all the steps to engage in that procedure and provide the results that follow.

The provincialcourt judge and the accused should be able to rely on the representations of the Crown in relation to this issue. [88] The Crown also argued that a stay should only be granted if the delay amounted to abuse (Numoz, Valooran). That is not thetest as stated by the Supreme Court of Canada in Askov, Morin and Godin, although it could form part of the overall balancing requiredto determine if the delay is unreasonable.

Regardless, the delay in this case of 17 months amounts to abuse because the Crown and itsagents obtained adjournments on the basis of unsubstantiated, reckless or careless representations. [89] Finally, the Crown is correct that the Supreme Court of Canada, in Nasogaluak, stated that where there is a breach of aCharter right, an appropriate remedy may be a reduction in sentence. In that case, the breach was not to s. 11(

b) of the Charter and istherefore distinguishable. [90] Moreover, the Supreme Court of Canada has ruled that the minimal remedy is a judicial stay of proceedings when anaccused’s s. 11(

b) Charter right has been violated. In R v Rahey, (SCC), [1987] 1 SCR 588, the Supreme Court ofCanada stated: 48 Now to turn to the remedy. Again in Mills, I have explained why a stay is the minimal remedy. If an accused has the constitutionalright to be tried within a reasonable time, he has the right not to be tried beyond that point in time, and no court has jurisdiction to try himor order that he be tried in violation of that right. After the passage of an unreasonable period of time, no trial, not even the fairestpossible trial, is permissible.

To allow a trial to proceed after such a finding would be to participate in a further violation of the Charter. [91] Rahey has been followed by the Ontario Court of Appeal and the Nova Scotia Court of Appeal (R v Thomson, 2008 ONCA771, R v Steele, 2012 ONCA 383 and R v MacIntosh, 2011 NSCA 111). [92] Therefore, in the event of a s. 11(

b) Charter breach, the minimal remedy is a stay of proceedings. However, if a delay doesnot reach the level of a s. 11(

b) violation, but was the result of misconduct on the behalf of the Crown or its agents and some prejudicewas caused to the accused, the court could reduce the sentence in the event of conviction. The Supreme Court of Canada in Nasogaluaksaid the following:

53 A sentence can be reduced in light of state misconduct even when the incidents complained of do not rise to the level of a Charter breach. VIII. Conclusion [ 93 ] I find that the total delay in this case is unreasonable and as a result, the accused’s Charter right to be tried within a reasonable time pursuant to s. 11(

b) has been breached. The minimal remedy in this case is that the charges against the accused be stayed. Heard on the 31 st day of October and 1 st day of November, 2012. Dated at High Level, Alberta this 16 th day of November, 2012. V.O. Ouellette J.C.Q.B.A. Appearances: Bruce Ritter Alberta Justice for the Crown Douglas N. Majaesic Douglas N. Majaesic Professional Corporation for the Accused _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice V.O. Ouellette _______________________________________________________

The docket number has been corrected to refer to the correct file. _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice V.O. Ouellette _______________________________________________________ A publication ban has been added to the front page under s. 486.4 of the Criminal Code .