R v Dallin, 2013 ABQB 615

Court of Queen ’ s Bench of Alberta Citation: R v Dallin, 2013 ABQB 615 Date: 20131126 Docket: 120482849S1 Registry: Edmonton Between: Her Majesty the Queen Crown/Appellant - and - Paul Dallin Accused/Respondent _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _________________________________________ ______________ Introduction [ 1 ] On March 28, 2012, the Respondent/Accused was arrested for unlawfully operating a motor vehicle while disqualified, contrary to section 259(4) of the Criminal Code .

He was given a notice on the same day which stated that he will be charged with this offence; and was formally charged on April 30, 2012, when the information was sworn. After several adjournments in docket at the Provincial Court and correspondence between the Chief Crown Prosecutor and defence counsel, the matter was set for trial to November 23, 2012. Apparently, due to a lack of court time, the matter was adjourned back into docket court to set a new trial date.

[ 2 ] Subsequently, instead of setting a trial date, the Accused set a date for an Askov application to be heard for a ½ day on February 12, 2013. The Accused was the only witness on the Askov application; and a trial date for June 7, 2013 was set after the Askov application had been heard. [ 3 ] On March 8, 2013, the Provincial Court judge stayed the proceedings. The Provincial Court’s Decision is reported in R v Dallin , 2013 ABPC 61 . The Crown has appealed that decision to this Court.

Background facts [ 4 ] On April 27, 2012, Defence counsel sent a request to the Crown Prosecutor’s Office asking for disclosure in this matter. On May 17, 2012, Defence counsel adjourned his Case Management Office (“CMO”) appearance to receive disclosure and consult with his client. On May 18, 2012, Defence counsel received the initial disclosure package from the Crown. On June 27, 2012, Defence counsel sent a further disclosure request to the Crown Prosecutor’s Office, itemizing outstanding disclosure. On June 28, 2012, and July 27, 2012, Defence counsel adjourned his CMO appearance to receive disclosure.

On July 30, 2012, Defence counsel received a single page of disclosure. On August 10, 2012, Defence counsel adjourned his Courtroom 356 appearance as he had not received full disclosure. [ 5 ] On August 14, 2012, Defence counsel sent another request for disclosure, repeating many of the requested items which were not addressed. In addition, the letter stated “[i]t is highly unlikely that Cst. McGregor has no notes.

Please provide me with them.” [ 6 ] On September 5, 2012, and September 7, 2012, Defence counsel received some disclosure which was requested, however the Crown Prosecutor’s Office did not provide Defence counsel with all of the requested disclosure, including the arresting officer notes (Cst. McGregor). [ 7 ] On September 7, 2012, Defence counsel adjourned his Courtroom 356 appearance as he has not received proper disclosure. [ 8 ] On September 17, 2012, Defence counsel sent a letter to Steve Bilodeau, Chief Crown Prosecutor which stated: This is not a low complexity matter.

Please have a Crown Prosecutor assigned to this file in order that I may set this matter for 0.5 days in trial. [ 9 ] On the same day, Defence counsel sent a letter to Martin Elton, Q.C. in the Crown Prosecutor’s Office which stated: On September 7, 2012, in #356, you indicated that disclosure was ready for pick up. That disclosure was picked up but all it indicated is that there was no complaint call and it concluded the event chronology. The event chronology shows that there were radio communications, so please provide that.

Also, you have not responded to our disclosure request about re-working of reports and whether Constable McGregor has any notes. [ 10 ] On September 19, 2012, Defence counsel received a reply from Steve Bilodeau, Chief Crown Prosecutor. Mr. Bilodeau stated that he did not assign the matter to a prosecutor, nor did he set the matter for a half-day trial as requested by Defence counsel. Mr.

Bilodeau concluded that “[t]here does not seem to be anything at all complicated about this matter.” [ 11 ] On September 20, 2012, Martin Elton, Q.C. from the Crown Prosecutor’s Office sent a letter to Defence counsel, asking him about the relevancy of the radio communications disclosure request. Mr. Elton also wrote that he has checked with the Police and there were no notes from Cst.

McGregor on their file, however, he stated that he will confirm this out of an abundance of caution. [ 12 ] On September 21, 2012, counsel for the Defence selected a trial date of November 23, 2012 in courtroom 353 (low- complexity courtroom) at 9:30 in the morning. Defence counsel stated: Now, Your Honour, I just want to put this on the record that the last time I was here it had to be put over because I had – because my position was that it was not low complexity, so I had to write to Mr. Bilodeau to ask him to assign a Crown. He wrote back to me and said, in his view, it’s low complexity.

So I went down and I set it for low complexity, but I want to put on the record that if this does not finish at that time, I will raise an 11(

b) application. I just wanted to put that on the record. The Court did not suggest that Defence counsel had to do anything more and simply stated “It’s on the record, Defence counsel.” [ 13 ] On October 4, 2012, Defence counsel sent a letter to Steve Bilodeau, Chief Crown Prosecutor which stated that Counsel had put on the record that “this was not a low complexity case and that if this matter takes more than an hour to complete and there is insufficient time and so an adjournment is required, there will be an application to stay the proceedings for 11(

b) delay.” The letter also enclosed Defence counsel’s anticipatory Charter notice for delay. [ 14 ] On October 26, 2012, the Crown finally disclosed Cst. McGregor’s notes. [ 15 ] On October 29, 2012, Defence counsel received a reply from Steve Bilodeau, Chief Crown Prosecutor, stating that he declined to participate in moving the file because “there is nothing discernible that would suggest that it is at all unusual.” Mr.

Bilodeau also wrote, “if you are aware of some aspect of this case which is going to impact on our ability to see it concluded in the “low complexity” court, I invite you to diligently let us know so that it can be reassessed.” [ 16 ] On November 23, 2012 at 9:40 a.m., Defence counsel stated that he was ready to proceed with the trial, however Mr.

Huyser- Wierenga, Counsel for the Crown decided to run other matters first and said: “so we’ll wait on Defence counsel’s matter…because there are some other matters we can deal with summarily.” Crown counsel then concluded the other trial before he called the Accused’s matter at 11:45am. The Accused’s matter did not start on that day because of lack of time as Judge Sully could not sit further than noon. Judge Sully directed both parties to the Assistant Chief Judge and get an early date. The Crown acknowledged that they had Defence counsel’s anticipatory Charter notice in case the proceedings were delayed.

[17] On December 5, 2012, there was a meeting in Judges Chambers with the Assistant Chief Judge. Crown indicated it wasavailable for Askov application on December 13, 14, 17, 18, 19, 20, 27 & 29, 2012. Defence stated that it was only available January 4,February 8 and 12, 2013. [18] On December 7, 2012, an agent for Defence counsel asked the Court to adjourn the matter for 2 weeks to pre-book the trial asDefence counsel had just received a letter from the Crown on the same day which had outlined common dates for the trial.

The Crownstated that they had a note which explained that “they’re trying to get permission to overbook by Judge Wheatley, so the letter thatoutlined Mr.

Huyser-Wierenga’s availability was actually one that was faxed to Judge Wheatley and cc’d to Defence counsel…so thereis some discussions with Judge Wheatley about getting permission to overbook, so we’ll likely have to come back here.” The Courtdecided to “adjourn it until the first week in January, because [the Court was] not sure a whole lot is going to get done in between then.” [19] On January 3, 2013, the date for the Askov hearing was set for February 12, 2013. On January 28, 2013, the Defence receivedadditional disclosure [20] On February 12, 2013, the Askov Application was heard by the trial judge.

At the hearing, Counsel for the Crown, made arequest to make written submissions to the Court by February 22, 2013, which request the Court granted. Counsel then obtained mutuallyavailable dates for the decision and the trial. [21] On March 8, 2013, the Provincial Court judge stayed the proceedings. Grounds of Appeal [22] The Crown Appellant appeals the decision of the Provincial Court Judge on three grounds. i. The trial judge erred by failing to provide sufficient reasons to permit the parties to understand the time that has been allocatedand the reasons underpinning it. ii.

The trial judge erred in law in finding that a future trial date was the end date of the delay instead of using the date of the stay asthe end date of the delay. iii. The trial judge erred in finding that the overall delay was unreasonable. Standard of Review [23] The Crown submits that a stay imposed for a violation of s 11(

b) of the Charter is to be reviewed on a standard of correctness;and no deference need be accorded the trial judge’s attribution of the various periods of delay, or the ultimate conclusion as to thereasonableness of the delay: R v Nguyen, 2013 ONCA 169 at paras 40 & 47, 2 CR (7th) 70; R v Cranston, 2008 ONCA 751, 244 OAC328; and R v Yelle, 2006 ABCA 160 at para 6, 384 AR 331. [24] The Crown also submits that a trial judge’s reason for allocating time periods in a particular manner must permit meaningfulappellate review having regard to the particular circumstances of the case: R v Nguyen at para 48; R v Sheppard, 2002 SCC 26 at para55, [2002] 1 SCR 869. [25] The Respondent notes that in Housen v Nikloaisen, 2002 SCC 33 at paras 8, 10, 19, & 37, [2002] 2 SCR 235, the SupremeCourt has stated that questions of mixed fact and law are subject to a standard of palpable and overriding error unless it is clear that thetrial judge made some extricable error in principle with respect to the characterization of the legal standard or its application, in whichcase the error may amount to an error of law. [26] The Accused argues that whether

section 11(

b) has been violated on the facts is a question of mixed fact and law. He submitsthat the applicable standards of review in this matter are as follows: (

i) for findings of facts (includes attribution of periods of delay),palpable and overriding error; (ii) for error of law, correctness standard; (iii) for questions of mixed fact and law (including whether theAccused’s Charter right has been violated based on the facts), palpable and overriding error; and (iv)for the issue of whether the trialjudge correctly balanced competing interests, considerable deference, assuming the trial judge considered the relevant factors. [27] The Accused acknowledges that the issue of whether the trial judge erred in law finding that a future trial date was the enddate of the delay should be reviewed on the correctness standard of review as it is a question of law.

And finally, submits that even if thecorrectness standard applied to all issues on this appeal, the Provincial Court Judge decided this case correctly. Standard of Review - Conclusion [28] The Supreme Court of Canada has established that whether a trial judge has properly concluded that s 11(

b) of the Charterhas been infringed on the facts is a question of law: R v Conway, (SCC), [1989] 1 SCR 1659, cited in R v Yelle. [29] Consequently, based on the nature of Grounds (ii) and (iii) of the grounds of appeal in this case, which fundamentally dealwith the issue of whether s 11(

b) has been violated on the facts, I conclude that the applicable standard of review is correctness as theparticular issue raised in those grounds of appeal constitutes a question of law. Similarly, I agree that a stay imposed for a violation of s11(

b) is to be reviewed on a standard of correctness; and that no deference need be accorded the trial judge’s attribution of the variousperiods of delay, or her ultimate conclusion as to the reasonableness of the delay. [30] With reference to the first ground of appeal dealing with the failure of the trial judge to provide sufficient reasons, I agree thatthe relevant legal principle is that reasons of a trial judge which are deficient in explaining to parties how the time periods have beenallocated are flawed for failure to permit meaningful appellate review: R v Cranston at para 33; R v Nguyen at para 48. Discussion

A. Adequacy of Reasons on allocation of time periods [31] As indicated earlier, the full written Reasons of the Provincial Court trial judge are indexed at R v Dallin, 2013 ABPC 61. Forease of reference, I have excerpted the relevant portions of the Decision appealed below: [31] Following the factors set out in [R v Morin, (SCC), [1992] 1 SCR 771], I have considered: Length of the delay [32] Defence counsel argued that his only concern was the fact of requiring a new trial at any time after November 23, 2012.

However,the period which I must consider is the period of time from the swearing of the Information to trial. This is from April 30, 2012 to June 8,2013. While the charge is relatively uncomplicated even though there is the potential for at least five witnesses, 15 months is a lengthyperiod of time, and of itself would weigh in favor of a stay. There are other factors which make the time unacceptable. Waiver [33] There has been none. It could have not been more clear to the Crown that if the trial did not conclude on November 23 thisapplication would be brought.

The reason for the delay [34] This falls solely on the part of the Crown. Defence counsel requested a half day and the Crown refused his request. [35] An accused has the right to remain silent and is under no obligation to tell Crown in advance what his defense will be or even if hewill call witnesses and how many. Indeed on many occasions the defense does not know until the Crown's case is completed whetherany defense will be called.

The prejudice to the accused [36] This accused suffered anxiety attacks and nausea and has been on medicine since the charge was laid which has affected hislivelihood, his memory and his kidneys. [37] This man has done everything in his power to have a trial proceed on the first occasion and I am satisfied any delay after November23 is unreasonable because of the prejudice to him and the effort he made to proceed in a timely fashion without delays. Other considerations: [38] In addition, I have considered the offence with which this accused has been charged.

It is an offence which does not involve theproperty or person of anyone other than the accused. There is less public interest in having this type of offence tried than other moreserious charges involving other people. [39] Finally, no where in the Crown's material is there any suggestion the defense abuse [sic] the right to ask for more trial time. There isno evidence how often this occurs. Without more, I am satisfied that when experienced defense counsel request more trial time,sufficient time should be allotted so that the trial can proceed to its conclusion as scheduled.

Parties’ arguments [32] The Crown argues that the reasons provided in the present case do not demonstrate any identification or analysis of therelevant periods of delay prior to the entry of the stay of proceedings. The reasons preclude meaningful appellate review. A trial judge isrequired to identify and analyze time periods when considering an unreasonable delay application.

Failure to do so in a manner thatpermits meaningful appellate review is an error requiring appellate intervention. [33] In support of the Crown’s position, reference was made to R v Cranston at para 33, where the Ontario Court of Appeal wascritical of the trial judge’s approach which outlined the correct legal test for considering delay, but only provided general commentsabout each type of delay (institutional, inherent, Crown and defence) with very limited analysis as to how or why he allotted the timeperiods as he did.

The Ontario Court of Appeal observed that “[w]hen allocating delay, it is important that the trial judge give sufficientreasons that the parties and the reviewing court can understand the time that was allocated and the reasons therefore.” The stay ofproceedings was set aside and a new trial date was set. [34] Further, the Crown cites R v Nguyen at paras 40, 47 and 48 where the Court set aside a stay of proceedings for unreasonabledelay on the basis of insufficient reasons provided by the trial judge with respect to how he allocated the delay. The Court concluded thatit was satisfied that the accused’s s 11(

b) rights have been violated and that the only appropriate remedy is a stay of proceedings. [35] The Respondent submits that the trial judge gave adequate reasons and properly accounted for the period of delay; decidedwhether there was a waiver; analyzed the reason for delay; and decided whether there was prejudice to the accused. He maintains that itis not necessary for a court to conduct a mathematical analysis when deciding a

section 11(

b) violation: R v Godin, 2009 SCC 26, [2009] 2 SCR 3 at para 18. And further submits that the Supreme Court has rejected a freestanding right of appeal forinadequate reasons: R v Sheppard at para 33; R v REM, 2008 SCC 51 at paras 16-17, [2008] 3 SCR 3. Conclusion on Ground (i) [36] Following my review of the impugned reasons, I note that the trial judge wrote, inter alia, that:

[32] Defence counsel argued that his only concern was the fact of requiring a new trial at any time after November 23, 2012. However,the period which I must consider is the period of time from the swearing of the Information to trial. This is from April 30, 2012 to June 8,2013. While the charge is relatively uncomplicated even though there is the potential for at least five witnesses, 15 months is a lengthyperiod of time, and of itself would weigh in favor of a stay.

There are other factors which make the time unacceptable. [37] I am satisfied that the explanation of the trial judge, as excerpted in the preceding paragraph of the within judgment,effectively and sufficiently articulates how the delay was allocated. In other words, the foundation of the trial judge’s decision in thiscase is discernable: R v REM at para 17.

In my view, the trial judge was able to give sufficient analysis and reasons that would enableboth the parties and this Court, as a reviewing court, understand the time that was allocated. [38] I also note that in the reasons, the trial judge proceeded to specifically consider and analyze the application of the Morinfactors to the Askov application before the Provincial Court. [39] In the result, I conclude that the reasons given by the trial judge as to the finding with respect to delay are sufficient to allowfor meaningful appellate review.

Although the Crown does not agree with the allocation of time periods as given in the reasons, that doesnot invariably mean the reasons are inadequate by themselves. In any event, I conclude that inadequate reasons alone would not supportan appellate intervention with the trial judge’s decision in this particular appeal: R v Sheppard at para 33. B. End Date of the Delay Parties’ arguments [40] The Crown argues that the trial judge also erred by considering June 8, 2013 as the end of the delay, being the proposed dateof trial.

The trial was completed upon the charges being stayed on March 8, 2013; and that date, the Crown contends, is the appropriateend date to be considered for the purpose of the delay application: R v Nguyen at para 65. [41] The Respondent argues that s 11(

b) provides for the right of an accused to be tried within a reasonable time, and not that theaccused has a right to have an Askov hearing within a reasonable time. He submits that in almost all cases, the courts have considereddelays using the length of time from when an information is sworn until the anticipated end of trial.

Conclusion on Ground (ii) [42] I agree with the approach adopted in R v Nguyen at para 65, where the date of the stay application, and not the proposed dateof trial completion was used as the “end date” for the purpose of the delay application. [43] In the result, I conclude that the trial judge erred when she used June 8, 2013 as the end date for conducting the delay analysisin this case. That was not the appropriate end date which ought to be used; rather, the trial Judge should have used the date of the Askovhearing on February 12, 2013 as the end date to calculate the extent of the delay. C.

The Reasonableness of the Delay [44] The Crown’s third ground of appeal is that the trial judge erred in finding that the overall delay was unreasonable. There arefour factors that must be considered when a court assesses whether the delay in a particular case has been unreasonable. These factorswhich are generally referred to as the Morin factors are: a. Length of the delay b. Waiver of time periods c. Reasons for the delay, including i. Inherent time requirements for the case ii. Actions of the accused iii. Actions of the Crown iv. Limits on institutional resources, and v. Other reasons for delay; and d.

Prejudice to the accused. [45] Effectively, the determination of whether there has been unreasonable delay in a proceeding requires more than tallying themonths between charge and conclusion of the trial. A

section 11(

b) analysis requires a balancing of the interests of the Accused for aspeedy trial and the interests of society in law enforcement; and as such, the delay in any particular trial must be considered in light of allthose factors listed above: see, Morin at para 25, citing, Cory J. in R v Askov, (SCC), [1990] 2 SCR 1199 [Askov]. [46] The analysis below probes into the issue of whether the trial judge erred in her consideration and conclusions in respect ofeach of these factors.

Application of the Morin Factors (

a) Length of the Delay [47] The Crown points out that in Morin at para 50, the Supreme Court of Canada provided a guideline for institutional delay of 8-10 months in provincial courts. Justice Sopinka cautioned that the guideline is neither a fixed limitation period nor a fixed ceiling ondelay and must not be applied in a purely mechanical fashion. More recently in R v Godin, 2009 SCC 26, [2009] 2 SCR 3, the SupremeCourt noted that an institutional delay in substantial excess of the Morin guideline does not automatically make a delay unreasonable.

Infinding the delay unreasonable in that case, the Court considered the lack of complexity of the case, the modest court time required, thedelay attributed to the Crown was unexplained and unjustified, and the efforts of defence counsel to move the trial date forward. Thedelay in that case was 30 months. [48] The Crown submits that the delay in the present case is well within the institutional guideline; and could be broken down as:(

i) total institutional delay - 16 weeks, (ii) total Defence delay - 2.5 weeks, and total Crown delay - 0 week. Alternatively, the Crownsuggests that if November 23, 2012 to February 12, 2013 is designated as Crown delay due to its classification of the matter as “lowcomplexity,” then the delay could be apportioned as: (

i) total institutional delay – 10.5 weeks, (ii) total Defence delay - 2.5 weeks, andtotal Crown delay - 12 weeks. The Crown contends that other delays accrued from inherent intake requirements, retaining and instructingcounsel and obtaining disclosure; which brings the total delay (i.e. including Defence delay) to about 9.5 months only, which is a lengthof time period that falls within the Morin guideline.

The Crown submits that this delay is not unreasonable or excessive, absent undueprejudice to the Accused, (such as, if the accused was in custody, or suffers as the Accused alleges in this case). [49] The Respondent argues that the trial judge was correct in her calculation of the length of the delay time from the informationdate to the anticipated end of trial to be 15 months.

And that the Crown should not be permitted to advance a position contrary to that intheir original submissions which acknowledged that the total length of delay is 15 months. [50] I agree with the Respondent that there was dissonance or inconsistency in the Crown’s submissions as to the length of thedelay - which it submitted at trial was 15 months and changed to 9.5 months on appeal.

That said, I do not accept the Respondent’sargument that a proper calculation of the total length of time based on dates, which are already in evidence at the trial stage and known tothe parties, should be regarded as a new issue/evidence that should not be considered on this appeal only because a flawed calculationwas earlier presented by the Crown: Athey v Leonati, (SCC), [1996] 3 SCR 458, 203 NR 36 at para 52.

In this context,I note that the general rule is that “an appellant is entitled to bring before the court, for the first time, a point of law not raised at anearlier stage when all material necessary for the full examination of the point is before the court and the respondent has not beenprejudiced by the course taken by the appellant”: Canadian Pacific Railway Co v Kerr (1913), (SCC), 49 SCR 33 at 40,[1913] SCJ No 49; and R v Yelle. [51] On the basis of a simple mathematical calculation, I am satisfied that once the inherent time requirements and institutionaldelay is taken into account, the total delay is approximately only five months calculated from the time Defence counsel was ready toproceed to trial on September 21, 2012, when a plea was entered, to the Askov hearing date of February 12, 2013. [52] In the circumstance, I conclude that the delay of approximately five (5) months does not rise to the level of beingunreasonable or excessive.

The issue of undue prejudice, as it relates to the question of reasonableness in the present appeal, is discussedseparately below. (

b) Waiver of Time Periods [53] The onus of demonstrating a waiver lies with the Crown. Silence cannot constitute a lawful waiver, but agreeing to a futuretrial date is not silence and gives rise to an inference that the accused is waiving his right to allege that an unreasonable delay hasoccurred. [54] The Crown submits that Defence counsel expressly waived any delay from September 21, 2012 to November 23, 2012 as hedid not take issue with the two month delay; rather, the Defence counsel indicated on the record that “if [the trial] does not finish [onNovember 23, 2012], [he] will raise an 11(

b) application.” Also, the Accused adjourned the matter for an additional month fromDecember 7, 2012 to January 3, 2013 to set an Askov hearing date. [55] The Crown indicates that the trial judge in her reasons found that there was no waiver in this case and that “it could not havebeen clearer to the Crown that if the trial did not conclude on November 23 this application would be brought.” This analysis, accordingto the Crown, fails to consider the reality of the initial intake requirements of the case as well as the fact that Accused adjourned thematter an additional month from December 7, 2012 to January 3, 2012 to set an Askov hearing date.

The Crown submits that the trialjudge erred by failing to subtract the express waiver made by Defence counsel when the original trial date was set. It notes that inMorin, the Supreme Court held that a trial judge must consider the total length of delay that elapsed from the date of the charge to theend of the trial subtracting any periods that are waived by the accused. [56] The Respondent argues that the statement of the Defence counsel that “if [the trial] does not finish [on November 23, 2012],[he] will raise an 11(

b) application” does not constitute a waiver. He submits that it could only be a waiver in the circumstance where thetrial ended on November 23, 2012, which never occurred. [57] In my opinion, and having scoured the record, the Accused never expressly waived any delay issues between September 212012 and November 23, 2012. Accordingly, I conclude that the Provincial Court Judge was not in error in this regard. (

c) Reasons for the Delay

i. Inherent time requirements for the case [58] The Crown argues that the trial judge erred by failing to subtract inherent time requirements and neutral delays from the totaldelay. Inherent time requirements must be subtracted from the overall delay as being the periods required for the case to be processed.They are considered “neutral” in a delay assessment. And while inherent time requirements exist in every case, the amount of inherenttime required for each case will vary with the complexity of the case and other events.

It is only after making this determination that atrial judge can consider whether the period is unreasonable. [59] The Respondent argues that the inherent time requirement for this case is negligible as the charge is straightforward, and inthe words of the trial judge “relatively uncomplicated.” He contends that the pre-November 23, 2012 delays cannot be characterized asneutral since all adjournments requested by the Defence, at that point in time, were attributable to failure to receive disclosure from theCrown. [60] The trial judge in her reasons writes: [32] Defence counsel argued that his only concern was the fact of requiring a new trial at any time after November 23, 2012.

However,the period which I must consider is the period of time from the swearing of the Information to trial. This is from April 30, 2012 to June 8,2013. While the charge is relatively uncomplicated even though there is the potential for at least five witnesses, 15 months is a lengthyperiod of time, and of itself would weigh in favor of a stay. There are other factors which make the time unacceptable.

The trial judge’s reasons excerpted above apparently failed to account for inherent time requirements. [61] In this regard, I note that in Morin, the Supreme Court recognizes that some delay in every case is inevitable.

Inherent timerequirements (or ‘intake requirements’) refer to the time taken to retain counsel, do police and administrative paperwork, preparedisclosure, and proceed through the preliminary inquiry process. [62] From my review of the trial judge’s reasons, it is clear to me that she failed to subtract the period of five months from April30, 2012 [the date of the charge] to September 21, 2013 [when the plea was made], from the overall delay.

With this subtraction, thetotal delay would be only approximately five months from September 21, 2012 to February 12, 2013. [63] Consequently, I conclude that the trial judge erred by failing to consider the inherent intake requirements of the case. ii. Actions of the Accused [64] The Crown argues that the actions of the Accused were inconsistent with a desire for an expeditious trial.

His counsel wasinvited on two separate occasions to explain how this case was distinct from every other case conducted under Criminal Code, s 259(4)with one witness, but Defence counsel declined to do so by simply repeating that in his opinion the matter “is not a low-complexity case”without any explanation as to how he arrived at that opinion. [65] Furthermore, the Crown argues that the Accused’s failure to set a trial date until after the s 11(

b) application demonstrates asimilar disregard for an expeditious trial. Waiting two months from December 7, 2012 to February 12, 2013 to set the trial date meantthat the dates available would be two months later as well. At the Askov hearing, the trial judge questioned Defence counsel about hisfailure to set a trial date.

Defence counsel explained that the reason he had failed to book a trial date (and failed to use the February 12,2013 date as a trial date) was because he wanted to bring an Askov application. [66] The Crown submits that defense counsel made a strategic decision in conducting this matter, so much so that in fact he filedan anticipatory Charter Notice, citing unreasonable delay prior to the original trial date on November 23, 2012.

The courts are unlikelyto find an unreasonable delay where the actions of the accused person are inconsistent with an expeditious trial based on his tacticsduring the trial: R v Steel (1995), 1995 ABCA 410 , 34 Alta LR (3d) 440, 174 AR 254 (Alta CA). [67] The Respondent submits that the Defence cannot be forced to give up any information about his defence and the Crown oughtto have relied on Defence counsel’s assurance that more time was required for the case rather than insisting that it’s “a low-complexitycase.” The Respondent maintains that his Defence counsel warned the Crown three times that the matter was not “a low complexity”one.

And additionally, when the Crown eventually started trial on November 23, 2012, it did so after finishing all other matters,including another trial, at about 11:45 a.m. on that day. [68] I am aware that in general, courts have recognized that the actions of some accused people are inconsistent with a genuineinterest in a speedy trial. Those accused people may attempt to use any delay to their tactical advantage to avoid the consequences oftheir criminal behavior.

In Morin at para 57, Justice Sopinka commented that: This Court has made clear in previous decisions that it is the duty of the Crown to bring the accused to trial. While it was not necessaryfor the accused to assert her right to be tried within a reasonable time, strong views have been expressed that in many cases an accusedperson is not interested in a speedy trial and that delay works to the advantage of the accused ... This right [to be tried within a reasonable time] must be interpreted in a manner which recognizes the abuse which may be invoked bysome accused. The purpose of s. 11(

b) is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider … Nonetheless, intaking into account inaction by the accused, the court must be careful not to subvert the principle that there is no legal obligation on theaccused to assert the right. [69] The case management system employed by the Edmonton Provincial Court relies on counsel having informed discussions

prior to setting matters for trial so that trial time is used efficiently, but Defence counsel has no obligation to participate in those discussions.

The Accused should not be penalized for his counsel’s quite proper refusal to disclose reasons for requiring a lengthier trial than that perceived by the Crown. [ 70 ] With reference to the position of Defence counsel that he requires more trial time for this driving and disqualification offence, I agree that the Defence counsel does not necessarily have to satisfy the court that he needed more time, and in any event the Court never took issue with the half day trial time request. [ 71 ] Further, I agree with the Trial Judge that Defence counsel correctly took the position that the Accused does not have to reveal his defence strategy in advance to the Crown by explaining how he arrived at the estimated trial time of 3 hours or half a day of trial time without a Charter argument, especially given the circumstances of this particular case which involved an experienced Defence counsel.

In my view, and like the trial judge said, the Crown should have accepted that time estimate instead of simply ignoring it or insisting on particulars. [ 72 ] In my respectful conclusion, I find nothing wrong or reprehensible with the actions of the Accused and/or the defence strategy of his legal counsel. iii. Actions of the Crown [ 73 ] There were no adjournments requested by the Crown, nor was there missing disclosure requiring a delay. The Crown argues that the trial judge erred when she held that the entire delay falls solely on the part of the Crown.

It is submitted that the Crown’s actions did not contribute to the delay. [ 74 ] The faults which the trial judge identified with the Crown are that, first, it failed to respond meaningfully to Defence counsel’s correspondence and

schedule the trial for the time and length he requested. And secondly, that the Crown was less efficient in the manner it handled the November 23, 2012 trial, when it proceeded with another case before dealing with the trial of the Respondent, Dallin. [ 75 ] I conclude that these two Crown actions contributed to and ultimately caused the delay from November 23, 2012 to February 12, 2013.

In this context, the time periods from November 23, 2012 to February 12, 2013 are, in my view, Crown delay due to its classification of the matter as “low complexity,” and that the Provincial Court Judge made no error in this regard. iv. Limits on institutional resources [ 76 ] The Crown submits that while the limits on court availability may have played some role in the institutional delay in the present matter on appeal, it is limited. The inherent delays were only three months from September 21, 2012 to November 23, 2012; and from January 3, 2013 to February 12, 2013.

It is understandable why court dates were not booked less than six weeks in advance to allow both Parties to issue subpoenas and procure the attendance of witnesses. [ 77 ] The Respondent concedes that the institutional delays in this case were negligible. However, he objects to the proposition that January 3, 2013 to February 12, 2013 constitutes an institutional delay.

Rather, the respondent contends that the delay for that period was due to Crown’s action in refusing to move the matter from “low complexity” court. [ 78 ] The timing for a case begins to run when both parties are ready for trial, but often the system is unable to accommodate them.

Courts must recognize that the state does not have unlimited funds and weigh this fact against the constitutional obligation to prevent unreasonable delay for accused people: Morin at paras 42-43 . [ 79 ] I agree with both parties that the role played by the limits on court availability in the present matter on appeal is limited or negligible. v. Other Reasons for Delay [ 80 ] The Crown contends that in the present case, the only delay that would fall under this category was the month between the s 11(

b) argument and the trial judge’s written decision. [ 81 ] The Respondent submits that the period between February 12, 2013, when the Askov application was argued, and the release of the Provincial Court decision on March 8, 2013 has a lot to do with the decision of the Crown to label the matter as “low complexity” as well as running other matters, including a full trial, before the Respondent’s matter on November 23, 2012. [ 82 ] In my view, the interval between the Askov application/hearing and the issue of the trial judge’s written decision was very reasonable in the circumstances of this case. (

d) Prejudice to the Accused [ 83 ] On the issue of prejudice to the Accused, the Crown refers to the evidence of the Respondent at the Provincial Court that he suffered prejudice as follows (see, Transcript of Proceedings, February 12, 2013): - He was very anxious with shaking and vomiting. He had to go to the doctor, who prescribed “stomach medication” and

“clonazepam” (26/31-35). - He has been taking clonazepam for “probably eight months” as of February 12, 2013 (27/31-32). The Crown notes that thiswould mean that he started taking the medication in approximately June 2012 (about 2 months after he was charged). - He takes clonazepam because he “really feel[s] innocent on this matter” and has to worry about himself and his business. He hasbeen losing sleep and the medication has affected his short term memory (28/3-8). - He was unhappy that the matter did not proceed on November 23. He had three witnesses in court, one of whom was from FortMcMurray (28/20-27).

The Accused “felt bad” because the witness had to lose three days of work and his wife almost lost her jobbecause she took a day off work on that day (28/34-39). - When asked directly how the adjournments made him feel, Accused responded: “…I wouldn’t say angry, but just quite annoyedand, you know just—it’s kind of like Groundhog Day, you know. It just never ends.

It’s - . [84] The Crown points out that in cross-examination, the Accused revealed the following: - He is a real estate agent and he works from home (29/31-37). - He never drives (31/18-19). - He has been charged by the police on more than one occasion, but he had a different reaction the other times because he knew hewas guilty (32/3-19). - He testified that on his previous charges, he “didn’t have a trial or nothing.

I just went in and said I’m guilty.” However, he laterchanged his testimony and admitted that he “had a trial years ago, but that was - I was just young at the time.” (32/40-41). - The charge was not causing stress for Accused, but the process was causing stress for him (36/35-39), even though Accusedadmitted that the November 23, 2012 appearance was the first time he had attended court (35/22-23). - Accused found the process to be stressful because he has his “ducks in a row” for the trial and he does not want to continuouslyattend court.

He also finds the delay to be financially difficult, but did not explain why (37/5-11). - Accused has been able to work every day since he was charged (37/20-24). [85] The Crown then argues that a certain amount of anxiety is expected to accompany a criminal charge. Noting that in this case,the Accused testified that he began experiencing symptoms of anxiety approximately 2 days after being charged and was prescribedmedication for the anxiety approximately 2 months after being charged. No independent medical evidence was called.

Both of theseevents preceded the original trial date, neither was caused by the delay of adjourning the original trial date, but instead they were theresult of the charges themselves. In fact, the Accused testified that he merely felt “quite annoyed” after the adjournment on November23, 2012. [86] According to the Crown, prejudice to an accused person may be inferred from prolonged delay. Longer delays result in astronger inference to be drawn.

However action (or lack thereof) by the accused which is inconsistent with a desire for a timely trial is afactor to be considered in determining the degree of prejudice suffered by the accused as a result of delay. Further, the Crown maintainsthat unlike many people accused of crime, the Accused here enjoys the support of his family; was able to maintain his full employment;maintained his marriage and family and was at liberty to travel. [87] The Respondent submits that the trial judge was correct in finding prejudice to the Accused based on the medical conditionshe suffered as a result of this case.

He contends that although a doctor was not called to give independent medical evidence, the Crown’sfailure to call evidence to contradict the testimony of the Accused on his medical condition is equally noteworthy. [88] This Court observes that the Supreme Court has cautioned courts to differentiate between prejudice flowing from beingcharged, and prejudice flowing from delay.

Of the two, only prejudice caused by delay after being charged can result in relief pursuant tos 11(b): R v Rahey, (SCC), [1987] 1 SCR 588 at para 66, 75 NR 81. [89] In my view, while the Accused’s anxiety was more intense than the average, based on his evidence, his anxiety appeared tohave a minor impact on his life or on the security of his person.

Significantly, there was no doctor called to testify about the Accused’smedical condition, so there was no independent confirmation as to any of his medical condition or symptoms suffered and, moreimportantly, their direct connection to the delay as distinctive from the charge for the offence. [90] In assessing prejudice to the Respondent, I have further considered the fact that this Accused enjoyed the support of hisfamily and experienced defence counsel, appeared familiar with the criminal justice system, and only attended court on two occasions forthis matter.

There does not appear to be any concern with respect to a fair trial because of degrading memories, nor were there anyrestrictions on Accused’s liberty, as he was able to travel during the relevant periods.

In addition, I observe that the delay of the trialappeared to have no impact on the Accused’s day-to-day life, his ability to maintain his full time employment, marriage and friendships. [91] Based on my consideration of the evidence on record, I conclude that the Accused’s major complaints have to do with hisanxiety, his frustration at having witnesses attend court unnecessarily and his annoyance at the lack of resolution of the matter. [92] In the result, I hold that the Accused has not suffered any undue prejudice based on the circumstances and evidence beforeme.

Disposition [ 93 ] In this case, I have determined that the periods of delay are properly characterized as follows: (

i) total institutional delay: 16 weeks; (ii) total defence delay: 0 weeks; (iii) total Crown delay: 12 weeks. And that any remaining delay is a result of the inherent intake requirements of the case, which include: retaining/ instructing counsel, and the gathering and obtaining of disclosure. [ 94 ] I conclude that the ultimate total delay of five months from the time Defence counsel was ready to proceed on September 21, 2012 to the date of the Askov hearing, February 12, 2013, was within reason. [ 95 ] I further conclude that the Accused did not suffer any undue prejudice because of this five month delay.

In this context, I find that the trial judge erred when she concluded, without any independent medical evidence to rely on, in her Reasons that: [36] This accused suffered anxiety attacks and nausea and has been on medicine since the charge was laid which has affected his livelihood, his memory and his kidneys. [ 96 ] Ultimately, I conclude that the total time taken from the time of the charge April 30, 2012 to the Askov hearing February 12, 2013 (including inherent time requirements and waiver) is less than one year, and within the guideline proposed by the Supreme Court in Morin ; the delay encountered in this matter was not unreasonable; and the Accused has not suffered any undue prejudice on the evidence before me. [ 97 ] Accordingly, the Crown’s appeal is granted.

Heard on the 26 th day of September, 2013. Dated at the City of Edmonton, Alberta this 25 th day of November, 2013. Donald Lee J.C.Q.B.A. Appearances: Susan Phillipee Crown Prosecutor's Office for the Crown Thomas M. Engel Engel Law Office for the Accused