R v Vader, 2016 ABQB 55

Court of Queen ’ s Bench of Alberta Citation: R v Vader, 2016 ABQB 55 Date: 20160126 Docket: 130781800Q1 Registry: Edmonton Between: Her Majesty the Queen Crown (Respondent) - and - Travis Edward Vader Accused (Applicant) _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ Table of Contents I. Introduction . 3 II. The Facts . 3 A. Background facts . 3

B. Disclosure problems discovered . 4 C. Facts related to the alleged abuse of process by the Crown . 5 III. The Issues . 8 IV. Abuse of process and a possible stay . 8 A. The Parties’ submissions . 8 1. Mr. Vader 8 2. The Crown . 9 B. The Law - abuse of process . 9 C. Analysis . 11 V. Breach of Mr. Vader’s Charter , s 11(

b) right to a timely trial 15 A. The Parties’ submissions . 15 1. Mr. Vader 15 2. The Crown . 16 B. The Law - Charter , s 11(b) 17 C. Analysis . 20 1. Additional facts . 20 2. Remaining issues . 20 3. Balancing delay, prejudice, and societal interests . 23 VI.

Summary . 26 Appendix “A” — Indictment 28 Appendix “B” — Potential Charter , s 11(

b) Comparator Cases . 38 I. Introduction [ 1 ] This is my decision on an application by the Accused, Travis Edward Vader, (“Mr. Vader”) to stop the prosecution on two first degree murder charges. (Indictment attached as Appendix “A”). Mr. Vader asserts a stay which the Crown entered on March 19, 2014 (the “2014 Stay”) was designed to avoid the need to seek an adjournment of the trial otherwise set to commence on April 28, 2014. He seeks a judicial stay of these proceedings, pursuant to the common law abuse of process doctrine and ss 7, 11(

b) and 11(

d) of the Canadian Charter of Rights and Freedoms ( the “ Charter ”). Alternatively, he claims that the entry of the 2014 Stay has delayed his trial by nearly two calendar years, with the result that he has been in peril on these charges for close to four years from the time of his arrest for murder on April 18, 2012. He argues that there has been unreasonable delay and these proceedings should be stayed by me based on a breach of his s 11(

b) Charter right to be tried within a reasonable time. II. The Facts [ 2 ] On this pretrial application I heard evidence over six days and argument for another day and a half; forty one exhibits were entered. I do not summarize all of the evidence, but instead proceed directly to a set of fact findings, some of which are common to both parts of the motion. Some of these findings are based, in part, on the assertions set out in paras 1, 2 and 5 to 40 in the Applicant’s Supplementary Brief, filed January 7, 2016 and which were accepted by the Crown.

I have divided the fact findings common to both parts of this Application into: 1. background facts, 2. fact findings related to the disclosure problem caused by the RCMP, and 3. facts around the alleged abuse of process by the Crown in entering the 2014 Stay.

[ 3 ] I make some further findings of fact in the course of my analysis on both the alleged abuse of process and delay issues. A. Background facts [ 4 ] In chronological order the background facts which I find are that: (

a) On July 3, 2010 Lyle and Marie McCann (“McCanns”) departed from St. Albert, Alberta in their motor home to travel to Abbotsford, BC. They disappeared and are presumed dead. On July 20, 2011, this Court made Orders declaring them to be deceased so that their estates could be administered. (

b) The RCMP commenced an investigation in respect to the disappearance of the McCanns shortly after July 5, 2010, when police located the motorhome. It had been destroyed by fire. (

c) On July 16, 2010 the RCMP named Mr. Vader as a “person of interest” in respect to the disappearance of the McCanns. The RCMP issued a press release which contained a colour photograph of Mr. Vader. (

d) On July 21, 2010 Mr. Vader was arrested on some outstanding warrants for charges unrelated to the disappearance of the McCanns. (

e) Throughout the balance of 2010, all of 2011 and into early 2012, the RCMP continued a murder investigation into the disappearance of the McCanns. (

f) In March of 2012, Ms. Michelle Doyle (“Ms. Doyle”) and Mr. Orest Yereniuk (“Mr. Yereniuk ”) (sometimes collectively referred to as “Crown Counsel”) of the Edmonton Rural and Regional Response Office (“ERRRO”), met with the primary investigators in the RCMP assigned to the McCann matter. The officers in the first command triangle were Staff Sgt. Proulx, Sgt. David Brink, and Const. Holly Wilson. Ms. Doyle and Mr. Yereniuk were shown a PowerPoint presentation describing the results of the RCMP investigation of the suspected murder of the McCanns.

Following that briefing, Crown Counsel recommended that the police proceed with the arrest of Mr. Vader on charges of first degree murder. They also advised the RCMP officers making up the first command triangle that “disclosure was paramount” and that disclosure be provided to Mr. Vader at or shortly after his first appearance on the murder charges. (

g) On April 18, 2012 an Information was sworn by Sgt. Brink. Mr. Vader, who was in the old Edmonton Remand Center (“ERC”) awaiting trial on other charges, was taken from the ERC to the Sherwood Park Detachment of the RCMP, arrested, and advised of the murder charges against him. (

h) Mr. Vader retained a lawyer and, in October of 2012, a pre-preliminary hearing conference was held with Assistant Chief Judge C.D. Gardner of the Alberta Provincial Court. Dates for a preliminary hearing were established by agreement of counsel for September 9 – 27 and October 7 – 25, 2013 in the Provincial Court. (

i) On July 3, 2013 a direct Indictment was approved (preferred) and was filed on July 5, 2013. Crown Counsel had recommended the direct Indictment partially on the basis of representations from the RCMP that disclosure was substantially complete. The filing of the direct Indictment eliminated the requirement for the preliminary hearing dates. (

j) On August 30, 2013 Sanderman J, sitting in the Queen’s Bench Appearance Court (“QBAC”) in Edmonton, scheduled a 31-day trial before a jury (April 28 through June 14, 2014). (

k) In August of 2013, Sgt. Brink, the primary investigator on the McCann investigation, was transferred and replaced by Sgt. Jané. Sgt. Brink returned to the file in March of 2014 with the task of making the disclosure package more navigable and user-friendly. The new command triangle consisted of Sgt. Jané as team commander, Sgt. Brink as lead investigator, and Corp. Zazulak as file coordinator. B. Disclosure problems discovered [ 5 ] In respect to the failure to provide disclosable evidence, I find that: (

a) From the outset, the RCMP provided disclosure items electronically to Crown counsel by way of a hard drive, which was then reviewed by the ERRRO lawyers and staff, and in turn handed over to Mr. Vader’s defence counsel of record. Between April 18, 2012, when charges against Mr. Vader were first laid, and the entry of the 2014 Stay, RCMP provided seven discrete disclosure packages, each containing all of the material of the previous one in addition to new material which was highlighted. The size of the disclosure grew incrementally with each new disclosure release. (

b) The RCMP provided disclosure package #1 to Crown Counsel on or about June 28, 2012. At this point, the Crown knew that there was more disclosure pending (for example, unsealing orders that had not yet been obtained for some of the wiretap applications). Disclosure packages #2, #3, and #4 were provided to Crown Counsel on or about October 11, 2012, February 1, 2013, and November 22, 2013, respectively and were then forwarded to defence counsel. Disclosure package #5, provided to Mr.

Vader’s defence counsel of record on December 31, 2013, was the last package provided before the RCMP and the Crown learned of the missing disclosure evidence. At this point, both the RCMP and the Crown Counsel believed that they had provided nearly 100% of all disclosable material to the defence. Also around this time, Mr. Vader changed lawyers and disclosure package #5 was provided to his new counsel, Mr. Beresh, Q.C., on January 29, 2014 once he had come on the record. (

c) In January of 2014, Ms. Doyle had commenced her detailed preparations for the upcoming trial. She had difficulty locating some of the items within the existing disclosure package, specifically a text or phone message related to the interception of communication pursuant to s 184.4 of the Criminal Code . She asked Sgt. Jané for help. (

d) Sgt. Jané was immediately responsive to Ms. Doyle’s request, but soon realized that some other potential evidence had not been disclosed and so advised Crown Counsel. He commenced a detailed audit of disclosure up to that point in time.

(

e) Disclosure package #6 was made available to Crown Counsel around February 14, 2014. This package contained voluminous new material, including about 500 new documents. On March 12, 2014, in a meeting with defence counsel, the Crown provided disclosure package #7. This release contained about 500 previously undisclosed documents, at least half of which related to forensic lab working files. The amount of new material in this disclosure package was large. It had been unexpected enough to propel Crown Counsel into discussions with Mr. Beresh, Q.C., regarding a possible adjournment of the upcoming trial to give both sides an opportunity to review the new material. (

f) Although the RCMP advised Crown Counsel of the imminent delivery of an eighth disclosure package, package #7 was the last disclosure package that was provided to the defence before the Crown entered the 2014 Stay on March 19. C. Facts related to the alleged abuse of process by the Crown [ 6 ] I find additional facts related to the time leading up to and after the entry of the 2014 Stay, namely that: (

a) In mid-January of 2014, Sgt. Jané became aware and advised Ms. Doyle of a problem with the disclosure. As mentioned above, this was following Ms. Doyle’s request for help in locating a text or phone message that was part of the material generated by RCMP Special I. This led to Sgt. Jané looking more closely into the state of disclosure and then to his discovery that the disclosure packages did not contain all of the information and documents that the RCMP had collected to that point in their investigation. (

b) In addition to uncertainty about the state of disclosure related to the Special I material, Sgt. Jané subsequently discovered other gaps, notably material regarding a police agent and investigators’ notes held by the Forensic Identification Section. Sgt. Jané immediately initiated a broad audit of the disclosure materials. (

c) As part of this audit, Sgt. Jané discovered that some materials created by RCMP members in British Columbia had not been incorporated into the disclosure package, namely tip statements made by members of the public as well as surveillance videos. (

d) Between discovery of the incomplete disclosure in February to mid-March, a team of civilian and non-civilian RCMP members spent in excess of 5,000 person hours in the efforts to remedy the problem. The hard drive containing disclosure expanded to contain over one terabyte of data. (

e) As early as January 28, 2014, Mr. Beresh, Q.C., made at least three written requests to Ms. Doyle, requesting variously an update on disclosure and confirmation that disclosure was complete. On February 11, 2014, Ms. Doyle responded by letter, indicating that there would be a sixth disclosure package that she anticipated would be forthcoming in the week following, and that she believed that that release would complete the disclosure. Crown Counsel provided the defence with disclosure package #6 on or very shortly after February 14, 2014. (

f) On February 13, Sgt. Jané advised Ms. Doyle that the Source Witness Protection file had not been disclosed and that the notes of six forensic analysts had not been produced. The next day, Ms. Doyle emailed Sgt. Jané to convey her utter frustration and disappointment in the state of disclosure. She emphasized in no uncertain terms that the disclosure problem needed to be remedied without delay, and offered to provide unspecified resources if needed to achieve that. (

g) On February 24, 2014 a meeting was held involving Sgt. Jané, Ms. Doyle and others. Given the incomplete state of disclosure and the fact that the trial was set to commence in less than two months, a number of options were considered. These included consenting to a request by defence counsel for an adjournment in return for a release plan for Mr. Vader. They also discussed the option of the Crown entering a stay of proceedings, recognizing that it would have one year in which to recommence the charges. (

h) On March 12, 2014 a meeting was held between Ms. Doyle and Mr. Yereniuk for the Crown, and Mr. Beresh, Q.C. and Mr. Bigg for the defence. At this meeting, the Crown proposed the following solution to the issue of late disclosure: (1) in order to permit counsel sufficient time to review disclosure, the Crown would consent to an adjournment request made by the defence, and suggesting that the trial might be postponed to as early as February of 2015; (2) the Crown would consent to Mr.

Vader’s release from custody on the murder prosecution in an effort to ameliorate any prejudice occasioned by the delay; and (3) a number of unrelated prosecutions that Mr. Vader was facing would be brought forward for

summary disposition, on which the Crown would be prepared to participate in a joint submission for a global sentence of time served. (

i) Mr. Vader did not accept the Crown’s offer to resolve the disclosure crisis as suggested above. Instead, on March 14, 2014, his counsel brought a notice of motion returnable before me on March 19, 2014 for an order, inter alia , compelling the Crown to provide full and complete disclosure by way of unvetted/unedited documents. Mr. Beresh, Q.C., also put the Crown on notice that, in the event that the Crown was unable to provide full disclosure in a timely fashion, Mr. Vader would apply for a judicial stay of proceedings. (

j) On March 19, 2014, when the parties appeared in court with the defence prepared to argue a disclosure application, Ms. Doyle entered the 2014 Stay, which removed the Court’s jurisdiction to hear the defence application. Sgt. Jané was also surprised to learn of the Crown’s intention to enter a stay of proceedings. He was prepared to testify on March 19, 2014 regarding the state of disclosure on the defence application; he had learned of Crown Counsel’s plan to enter a stay on the evening before the application was to be heard. (

k) When cross-examined on her decision to enter a stay, Ms. Doyle stated that, although she considered seeking an adjournment, she believed that it was no longer in the public interest to proceed, being that she was not satisfied with the integrity of the disclosure process to that point. She added that she was no longer confident that the Crown had a reasonable likelihood of a just conviction if the prosecution were to proceed because she did not know what other evidence existed. Accordingly, after consulting with Mr. Yereniuk and others, she concluded she had no choice but to enter a stay of proceedings. (

l) Subsequent to the entry of the 2014 Stay, Ms. Doyle continued to meet with Sgt. Jané and key members of the investigative team. The RCMP had been preparing to provide disclosure package #8 to Crown Counsel, and they continued to work toward that objective. The RCMP wanted to meet its disclosure obligations and also regain the confidence of Crown Counsel, specifically Ms. Doyle.

(

m) Ms. Doyle met with the RCMP on at least six occasions between the entry of the 2014 Stay on March 19 and May 1, 2014. In addition to discussing the readiness of disclosure package #8, Ms. Doyle continued to ask questions about and advise on specific pieces of evidence, specific witness statements, and how pieces of evidence worked together in the Crown’s theory of the prosecution of Mr. Vader. She occasionally made recommendations to Sgt. Jané to follow up on particular investigative avenues that she felt were not completely supported by the evidence as it currently existed in the disclosure.

The prospect of reactivating the charges was within her consideration, and she wanted to ensure that before the Crown made such a decision, that all disclosure was complete and user-friendly. (

n) After the stay, the RCMP viewed the McCanns file as not fully resolved, and they remained open to pursuing tips and investigative avenues. However, after the stay was entered, the investigative team was small—only three or four investigators from the historical homicide unit along with Sgt. Jané and Corp. Zazulak. (

o) In the summer of 2014, Ms. Doyle left ERRRO when she was appointed as the Chief Crown Prosecutor in Edmonton. However, she retained the McCann file, and took several weeks of leave from her new position to review it fully once she was satisfied that disclosure was complete. In the course of this review, she recognized that she would be unable to assess the file objectively because of her prior involvement. She approached the Specialized Prosecutions unit with a request that a senior prosecutor be assigned to review the file in order to determine whether or not there was a reasonable likelihood of Mr.

Vader’s conviction on the murder charges based on the now complete disclosure. Mr. Finlayson assumed carriage of the file. (

p) Mr. Finlayson reviewed the file and concluded that it would be in the public interest to recommence the charges against Mr. Vader. The Crown advised the RCMP of this in November of 2014 so that a plan could be made for recommencement of the charges and the re- arrest of Mr. Vader on the murder charges. (

q) On December 19, 2014, these proceedings were recommenced and the RCMP arrested Mr. Vader. III. The Issues [ 7 ] There are two issues:

(1) In all of the circumstances, has there been an abuse of process committed by the Crown that justifies the imposition of a judicial stay as an appropriate remedy?

(2) In all of the circumstances, has there been unreasonable delay and prejudice, constituting a breach of Mr. Vader’s s 11(

b) rights under the Charter which justifies the imposition of a judicial stay? IV. Abuse of process and a possible stay A. The Parties’ submissions [ 8 ] The arguments on this subject underwent some evolution during the pre-trial application. The

summary that follows focuses mainly on the final positions of the parties as I understand them. 1. Mr. Vader [ 9 ] Mr. Vader observes the malfunction in the police investigation is obvious from the evidence received by the Court. The more substantive question is whether the Crown stay that followed was an abuse of process. Counsel for Mr.

Vader admits the Crown Counsel had a reason to question whether there was even a possibility that this matter should go to trial, but criticized the remedy that was used: unilaterally ordering a stay, rather than making an application for the trial to be adjourned to a future point. [ 10 ] The defence argues the choice, stay vs adjournment, was a tactical choice to deprive the Court “... of its abilities to control its own processes, and deprived Mr. Vader of his rights under s. 11(

b) and the common law.” Counsel argues it turned out disclosure had been completed prior to the scheduled trial date. The “unnecessary and disruptive stay” meant Mr. Vader was denied an opportunity to argue and the Court to adjudicate on the next appropriate step. An adjournment would have led to an earlier trial. The Crown’s tactic of laying, staying, and recommencing charges was a choice based on convenience, and that is an abuse of process. 2. The Crown [ 11 ] The Crown’s position is quite simple - Crown Counsel acted in good faith when the choice was made to stay the charges against Mr. Vader.

They were faced with an impending trial, an obvious and serious failure in the disclosure process that put Mr. Vader’s right to full answer and defence at risk, but the scope of that issue was not clear. That made a stay a valid alternative, and not simply a tactic of convenience and opportunity. [ 12 ] In its final arguments the Crown stresses how multiple factors converged to create an unusual scenario: a huge file, an issue of uncertain dimension, the tight deadline that resulted from the impending trial, and the simple underlying issue that important personal rights of Mr.

Vader and professional obligations were in play. This is not the “clearest of cases”, so no stay should be ordered. The Crown and police attempted to discharge their duties. When it came time to choose a path out of this morass the Crown Counsel chose an alternative that was reasonable, particularly in the unusual circumstances of this case. B. The Law - abuse of process

[13] Over the past 30 years, the Supreme Court of Canada has gradually refined the law related to a superior court’s inherent powerto grant various remedies in the face of an allegation of abuse of process by Crown actors in a criminal prosecution. [14] In the criminal context, abuse of process by the Crown refers to prosecutorial conduct that “is egregious and seriouslycompromises trial fairness and/or the integrity of the justice system” (R v Anderson, 2014 SCC 41 at para 50, [2014] 2 SCR 167[“Anderson”]).

In earlier jurisprudence, McLachlin J, as she then was, stated that abuse of process would be established where “(1) theproceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fairplay and decency” (R v Scott, (SCC), [1990] 3 SCR 979 at 1007, dissenting on other grounds).

This test for abuse ofprocess was later adopted by a unanimous Court, although the disjunctive “or” was inserted between its two parts, replacing theconjunctive “and” which McLachlin J originally used (R v Nixon, 2011 SCC 34 at para 40, [2011] 2 SCR 566 [“Nixon”]). [15] While the Crown’s tactics and conduct before the Court are subject to a broad range of review, exercises of prosecutorialdiscretion are reviewable only for abuse of process (Anderson at para 36).

Prosecutorial discretion refers to all decisions regarding thenature and extent of the prosecution of criminal offences and the Attorney General’s participation in those processes (Anderson at para44).

This discretion encompasses a number of powers, including the discretion whether to bring the prosecution of a charge laid by policeand the discretion to enter a stay of proceedings in a public prosecution, subject to Charter obligations that the Crown always owes anaccused (Krieger v Law Society (Alberta), 2002 SCC 65 at para 46, [2002] 3 SCR 372; Anderson at para 45). [16] Where there has been an abuse of process by the Crown in a criminal case, the Court must distinguish between (1) conductwhich has impaired the accused’s right to a fair trial, and (2) conduct that undermines the integrity of the justice system.

Under the firstcategory, the concern is about prejudice that the accused has suffered; proof of prosecutorial misconduct, while relevant, is not aprerequisite (Nixon at para 39). Finding an abuse of process that falls into the first category will result in focussing on a remedy whichwill restore the accused’s right to a fair trial, rather than finding a remedy “that will dissociate the justice system from the impugnedconduct” (R v Magomadova, 2015 ABCA 26 at para 50, 588 AR 331). [17] It would be nearly impossible to catalogue the situations in which an abuse of process might be found.

However,comprehensive lists of scenarios in which the argument has been advanced can be found in Tim Quigley, Procedure in CanadianCriminal Law, 2nd ed (Toronto: Carswell, 2005) (loose-leaf revision 2013-2), ch 16.8(

b) and The Honourable Mr Justice E G Ewaschuk,Criminal Pleadings & Practice in Canada, 2nd ed (Toronto: Canada Law Book, 2013) (loose-leaf revision 102), vol 1, ch 12:6350. [18] In order for a Crown’s use of its power to stay a prosecution and/or recommence proceedings to be an abuse of process, theaccused must establish that the Crown’s actions were oppressive or vexatious, or otherwise violated the fundamental principles of justiceunderlying the community’s sense of fair play and decency.

In exercising this discretion, the Crown is, of course, always subject to thelimitations imposed by the Charter, and must answer to allegations of specific breaches. [19] A stay of proceedings may be warranted on rare occasions where an abuse of process has been found. It is a drastic remedy tobe used only in “the clearest of cases” (R v Babos, 2014 SCC 16 at para 30, [2014] 1 SCR 309 [“Babos”]).

The Court in Babos at para32 stated the three-part test for determining whether a stay of proceedings is warranted: 1) there must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that will be manifested, perpetuated,or aggravated through the conduct of the trial, or by its outcome; 2) there must be no alternative remedy capable of redressing the prejudice; and 3) where there is still uncertainty over whether a stay is warranted after the first two steps, the Court is required to balance theinterests in favour of granting a stay (such as denouncing misconduct and preserving the integrity of the justice system) against theinterest that society has in having a final decision on the merits. [20] The jurisprudence reveals a wide variety of alleged prosecutorial misconduct which has attracted abuse of process allegations.One of these which is relevant to the application before me is the Crown’s use of the power to stay proceedings under s 579(1) of theCriminal Code, as well as its authority under s 579(2) to recommence those proceedings within one year of the stay being entered. [21] The leading relevant case is R v Scott, (SCC), [1990] 3 SCR 979, 166 NR 361 [“Scott”] where, in the courseof the trial, the judge had ruled that defence counsel could pursue a line of questioning that the Crown had said would inevitably lead tothe disclosure of the identity of a police informant.

In order to avoid an adverse ruling on informer privilege, the Crown stayedproceedings and recommenced them at the first available opportunity. The majority of the Supreme Court of Canada held that the actionsof the Crown were not abusive, being that the Crown’s decisions were motivated solely by a desire to uphold the important informerprivilege.

The dissenters would have held otherwise, citing three concerns: 1) the evil of “judge-shopping”; 2) concern for theimpartiality of the administration of justice, both real and perceived; and 3) the need to uphold the dignity of the judiciary and judicialprocess. [22] The majority’s reasoning in Scott is consistent with the Court’s recent statements about prosecutorial discretion.

In Anderson,for example, the Court emphasized that prosecutorial discretion is a necessary part of a properly functioning criminal justice systemwhose fundamental importance lies in “advancing the public interest by enabling prosecutors to make discretionary decisions infulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi-judicial role as‘ministers of justice’” (Anderson at para 37; Kvello v Miazga, 2009 SCC 51 at para 47, [2009] 3 SCR 339 [emphasis in original]). [23] Another case of interest is R v Cole (1998), (NS SC), 168 NSR (2d) 170 (NSSC).

The accused and fiveothers appealed their convictions of aggravated assault. A new trial was ordered for the accused before the other appeals were heard.The Crown did not appeal that decision. Eleven days before the date set for his new trial, the Crown entered a stay of proceedingsagainst the accused. Six days later, the Court of Appeal released its decision regarding the five other individuals, not ordering new trials.The Crown recommenced proceedings against the accused 362 days after it had entered a stay.

The Crown had wished to delay theaccused’s new trial until the appeals of his co-accused had been decided because it wanted to have any other re-trials held jointly withthat of the accused to minimize cost and inconvenience to witnesses. The applications judge entered a judicial stay of proceedings,

finding that the Crown had abused the court’s process by unilaterally obtaining a 16-month adjournment in circumstances where it was the court’s decision to determine if an adjournment should be granted. [ 24 ] On appeal only on the issue of costs against the Crown, the Court took the opportunity to consider at length the matter of abuse of process, carefully reviewing the jurisprudence and other examples where the Crown had entered a stay of proceedings and recommenced charges later ( R v Cole , 2000 NSCA 42 , 183 NSR (2d) 263).

The Court expressed “grave doubts as to the propriety of the [application judge’s] ruling”, stating that its finding that the Crown's entry of the stay was for improper motives was a novel

interpretation of the limits of Crown discretion under the Criminal Code (at para 49). C. Analysis [ 25 ] To determine whether this is one of those rare “clearest of cases” where a judicial stay should be granted, I must examine the conduct of the RCMP and the Crown Counsel involved for improper purposes, unfair steps, or that the Crown was ‘gaming the system’ in its favour. I begin by summarizing the two competing positions on this motion. [ 26 ] As Applicant, Mr. Vader’s counsel characterizes the Crown’s (meaning Ms.

Doyle’s entry) of the 2014 Stay as a “manufactured adjournment of the trial”, which was set to begin on April 28, 2014. Put another way, defence counsel says that the entry of a stay on March 19 was an improper use of the discretionary power residing with the Crown. [ 27 ] Mr.

Finlayson, for the Respondent, responds that neither the RCMP or Crown Counsel (collectively the “Crown”) deliberately withheld disclosure, rather all involved for the Crown did everything within reason to repair the disclosure disaster; and the decision to enter a stay was made only with appropriate considerations in mind. [ 28 ] I move now to an assessment of the conduct of Sgt. Jané, including a review of his credibility and the reliability of his evidence. I note that when defence counsel (Mr.

Whitling) was asked to address the issue of the credibility of this witness and reliability of the evidence, no issue was raised with either Sgt. Jané or Ms. Doyle for that matter. [ 29 ] Sgt. Jané was examined and cross-examined for close to two days in the hearing. He was a responsive witness and completely open as to what had happened in respect to the emergence of the disclosure problems in this case and the steps taken to ensure full disclosure was made to the defence.

He readily acknowledged that the RCMP had, in many ways, and involving many members of the force, failed to provide evidence which was clearly disclosable. He held nothing back in that regard. He was not caught in any inconsistencies in discussing the massive amount of detail involved in this case. I find him to be a credible witness and characterize his evidence as reliable. [ 30 ] I also deal with the credibility and reliability assessment of Ms. Doyle at this point.

She had the disconcerting experience of having her cross-examination split with 14 days intervening between her first and second appearances in the witness box. Mr. Beresh conducted an exhaustive cross-examination of Ms. Doyle on her decision to recommend and enter the 2014 Stay. She was completely open in discussing the rarely seen process which led to the decision to enter the 2014 Stay. She did not allow herself to be baited into arguments with defence counsel. She responded clearly, politely, and in a concise manner to all questions put to her in both direct and cross-examination.

No inconsistencies in her evidence are apparent to me. I find her to be an honest witness and accept her evidence as reliable; I give it great weight in coming to my ultimate decision on whether or not there was an abuse of process in respect to the entry of the 2014 Stay. [ 31 ] Turning now to a more detailed examination of the conduct of the RCMP on the disclosure component of the alleged abuse, I have the following to say. [ 32 ] Prior to the disclosure problem emerging, as the result of inquiries made by Ms. Doyle, as she started preparing for trial and the reviews undertaken by Sgt.

Jané in respect to disclosure commencing in January 2014, everyone involved seems to have assumed at that point in time that disclosure was close to 100% complete, subject only to some confirmatory interviews of key witnesses prior to trial. It turned out that that assumption was wrong, but there is no evidence before me that anyone in the RCMP was deliberately withholding or suppressing disclosable material. Certainly members were sitting on disclosable materials, e.g. the bench notes from forensic analysts held by Cst. Wilson, information related to intercepts of communications, etc.

None of these instances have been shown to have been deliberate. Certainly there was negligence on the part of some members of the RCMP and therefore the overall institution of the RCMP, and that was fully acknowledged by Mr. Finlayson as being “egregious”. However, this conduct was not intentional, i.e. , involving mala fides . [ 33 ] The evidence is clear that once the shortcomings in disclosure became apparent, Sgt. Jané took the lead within the RCMP to correct the problem. He marshalled additional police resources, which were readily provided to him in the nature of additional investigators and support staff.

He and others worked tirelessly to track down disclosable material not yet included in the disclosure package. I accept that given the magnitude of the investigation and a case very much made up of little bits and pieces of evidence, it was a very complex and difficult task to manage. I am satisfied that given the short time period from the point of realizing that disclosure was not in fact complete, sometime in mid to late January to a date in mid-March, that all reasonable steps which could be taken were taken by the RCMP and it is clear that they have learned many lessons from this experience.

I have been told they have taken steps to ensure that this sort of disclosure disaster never happens again in a major criminal case where K-Division is responsible. [ 34 ] In the result, I am satisfied that there has been no conduct by the RCMP beyond the admitted failure to make full disclosure in a timely way which amounts to mala fides on the part of that organization. There was never a plan to harm or unfairly prejudice Mr. Vader. [ 35 ] I now turn to examine the role of Ms. Doyle and her colleagues in their roles as Crown Counsel. [ 36 ] I start my examination by observing that Ms.

Doyle commenced trial preparation in a normal fashion for an important prosecution of first degree murder charges with many police, civilian and expert witnesses and many pieces of forensic evidence. She

had a history on the file, but intensive involvement did not begin until trial preparation work began in earnest in early 2014. [ 37 ] Almost immediately she raised questions about pieces of evidence with Sgt. Jané, but the disclosure problem did not become clear until early February 2014. It was not until her e-mail of February 14, 2014 that she appeared to have realized what a serious problem existed in respect to whether there had been full disclosure to the defence. She pressed Sgt.

Jané to address the disclosure problem and continued to prepare for trial. [ 38 ] It was not until the meeting of February 19, 2014 that consideration was given to a possible delay of the trial through either a consent adjournment requested by the defence as a cure for the Charter breach caused by the incomplete and increasingly late disclosure, or the entry of a stay. The option of entering a stay was discussed, but at that point in time was not a preferred option.

There was nothing wrong in considering the use of a stay as one of the tools in the toolkit. [ 39 ] On March 12 a meeting was held with defence counsel and the problems with disclosure were openly presented and conceded as being a breach of Mr. Vader’s Charter rights. It was proposed that the defence consider applying for an adjournment, with the Crown consenting. [ 40 ] The discussions of March 12 were made the subject of a Crown offer letter, dated March 13. The offer was rejected by the defence. [ 41 ] Parallel with these discussions with the defence team, Ms.

Doyle continued to work to get a grip on the disclosure problem and continued preparations for trial. [ 42 ] Ms. Doyle became increasingly concerned about whether full disclosure had been made, or could be made in a timely fashion. Not only had she lost faith in the ability of the RCMP to make full disclosure, she started having serious concerns about whether the prosecution was still a viable one in the sense of a fair trial being conducted. [ 43 ] There is nothing in the evidence shown to me at the hearing that at this time Ms. Doyle had any improper consideration in her mind in respect to the entry of a stay.

It was an option that was always there, but it was not seriously pursued until after the Crown offer of March 12 was rejected by Mr. Beresh, Q.C., on behalf of Mr. Vader. [ 44 ] At the very end of her evidence in direct testimony in answer to a question from Mr. Finlayson (Transcript, November 30, 2015, p 39, ll 23 – 34) Ms. Doyle said: A I didn’t consider asking for an adjournment. This -- this was a devastating situation that I was not prepared to be a part of.

Asking for an adjournment certainly would have ameliorated the circumstance of the possibility that I wouldn’t be able to glean the significance of some of the avalanche of disclosure. I wasn’t satisfied in the integrity of the disclosure process at that point, and it was my view that it was no longer in the public interest to proceed. And I couldn’t even say that I had a reasonable likelihood of conviction because I didn’t know what else was out there.

So I consulted with the people that I report to, and I concluded that I had to direct a stay of proceedings because I must have both a reasonable likelihood of conviction and I must be satisfied that it’s in the public interest to proceed. And I interpret a reasonable likelihood of conviction as a reasonable likelihood of a just conviction, and I could not be satisfied that I had that. [ 45 ] I accept Ms. Doyle’s evidence that she was not satisfied in the integrity of the disclosure process.

I further accept her conclusion “that it was no longer in the public interest to proceed”. [ 46 ] I accept her evidence completely and find as a fact that her conclusion to enter a stay was made in good faith and on sound grounds. I find there was no improper purpose and that there was no intention to circumvent the power of this Court to control its own process through the granting or refusal of an adjournment. [ 47 ] The decision to order a stay in these circumstances does not constitute an abuse of process. The decision was made in good faith and for a valid policy and litigation purpose.

This was a fair response which respected Mr. Vader’s Charter rights to affair trial and discharged the Crown’s obligation in the conduct of criminal proceedings. Much was made by the Accused that the stay was improper where an adjournment may have worked instead, but in reality these were two different but viable alternatives. Each had an advantage. For example, an adjournment would have still left Mr. Vader a person accused of very serious crimes. A stay, on the other hand, released him from state supervision entirely. [ 48 ] As I observed at the outset of this analysis, Ms.

Doyle went into the witness box and disclosed everything about the conduct of this case during February and March of 2014 in particular. This included giving up materials which this Court and the public seldom, if ever, see because of their privileged nature. Everything was put out for examination not only by me, but for the entire world to see. This exercise in total transparency has not revealed any evidence which could be characterized as providing a basis for a finding of bad faith on the part of the Crown Counsel.

All it did is reinforce my conclusion that the conduct of the Crown Counsel throughout were all actions taken and decisions made in good faith, for a valid purpose, and that respected Mr. Vader’s Charter rights. [ 49 ] I must also consider the consequence of the Crown’s actions and not just the intention or motivation behind them. The Supreme Court of Canada has stated that abuse of process refers to prosecutorial conduct that “is egregious and seriously compromises trial fairness and/or the integrity of the justice system” ( Anderson at para 50 ).

The proceedings must be oppressive, vexatious, or violate the fundamental principles of justice underlying the community’s sense of fair play and decency ( Nixon at para 40 ). [ 50 ] Although I have no doubt that the RCMP made serious errors in managing its role in the disclosure process, I cannot conclude that the Crown’s conduct as a whole rises to the level of being an abuse of process. Firstly, I am not convinced that Mr. Vader’s right to a fair trial has been seriously compromised. Leading up to the 2014 Stay, the Crown Counsel’s confidence in the state of disclosure was low, and for good reason.

Had they insisted on proceeding to trial as scheduled, I have no doubt that trial fairness would have been seriously jeopardized. However, in entering the stay and continuing to work with the RCMP command triangle to remedy and perfect disclosure, Crown Counsel effectively cured what would otherwise have been a very serious impairment of trial fairness. That the

disclosure problems and Crown Counsel’s approach to remedying it now give rise, in part, to an application for a Charter remedy basedon a breach of s. 11(

b) does not affect my abuse of process analysis. [51] I must also ask whether or not the Crown’s conduct has seriously compromised the integrity of the justice system. Asdiscussed, the Crown made errors in conducting this investigation and attempting to meet its disclosure obligations to the defence.

Thereis not sufficient evidence to show that Crown Counsel abused their prosecutorial discretion in electing to stay the proceedings andrecommence them within the year allowed by the Criminal Code. [52] Absent any evidence showing an improper purpose in exercising that discretion, it is not the role of this Court to question whyCrown Counsel chose to stay the proceedings as opposed to seek an adjournment. Either approach would have resulted in a delay for thepurposes of analyzing the state of the disclosure and taking steps to remedy deficiencies identified.

I note that, before Crown Counselrecommenced the prosecution, Ms. Doyle took leave from her new position to reconsider the totality of the evidence and handed the fileover to another senior prosecutor for the purposes of assessing whether the Crown still had a reasonable likelihood of obtaining aconviction. Crown Counsel acted diligently by choosing to halt the proceedings, working with the RCMP to repair the state of disclosure,and reanalyzing it to ensure that a prosecution was in the public interest.

The principles of justice are not violated by effectivelyendorsing Crown Counsel’s decision to stay and then recommence these proceedings in allowing this prosecution to proceed to trial. [53] Having concluded that there has not been an abuse of process, it is neither necessary nor appropriate that I evaluate whether ornot a stay would be the appropriate remedy. First, this is an interlocutory decision and the utility of an alternative analysis is thereforerestricted.

Second, I have concluded as a finding of fact that the kinds of activity that could potentially attract a stay are absent, andtherefore I lack a proper basis to test whether or not this is one of “the clearest of cases” (Babos) where the Court has no alternative but toorder a stay in response to breach of the Accused’s Charter rights. V. Breach of Mr. Vader’s Charter, s 11(

b) right to a timelytrial [54] In the alternative Mr. Vader argues that his Charter, s 11(

b) right to a trial within a reasonable time has been breached. [55] Both Mr. Vader and the Crown agree that the amount of time that has passed since he was first charged on April 18, 2012means an inquiry and analysis of this issue is appropriate. A. The Parties’ submissions 1. Mr. Vader [56] Mr. Vader argues that in March 2014 he was ready to go to trial and has remained ready to proceed since that point. He waswilling to re-elect to a judge-alone trial and that was refused by the Crown. Any delay is due to the Crown and its mismanagement ofthis proceeding. Mr.

Vader argues the choice by the Crown to seek a stay rather than an adjournment is very relevant, because anadjournment would only result in 11 to 13 months of delay. Instead the actual delay is close to twice that. [57] Given that the Crown has admitted the duration and generally unreasonable nature of the post-2014 Stay delay, Mr. Vaderargues the only factor that favours not granting a stay is the fact the charges against him are very serious: first degree murder of twopersons.

On this point counsel for the Accused stresses the Ontario Court of Appeal judgment of R v Kporwodu (2005), (ON CA), 75 OR (3d) 190, 196 OAC 272 is particularly relevant, not only as an appeal judgment, but because of the fact the twoaccused also faced first degree murder charges in that case. [58] Mr. Vader characterizes the allegations against him as “an exceptionally complicated case”, with “exceptionally large”disclosure, and, of course, very serious charges. He acknowledges these are reasons why a longer delay is reasonable.

However, thelarge and problematic disclosure is a factor for which the original proceeding was stayed, and is not so much an understandable basis forsome delay because the case against Mr. Vader was, in fact, essentially complete in this general period. It is not as though the largedisclosure led to the subsequent 25 month delay. Instead, it was bad disclosure that triggered the downstream effects. Essentially, policeinvestigators were negligent, and that negligence is the underlying cause for all the delay. [59] Defence counsel reviewed the decisions cited by the Crown but stressed that all s 11(

b) analyses are by their nature very factspecific. For example, in R v AS (2008), 182 CRR (2d) 1, 79 WCB (2d) 27 (Ont Sup Ct

J) the pattern of laying charges, a stay, and thena renewed case at first seems like a good comparator, but on closer examination the Crown’s reason to the stay is very different, whichMr. Vader submits is relevant when viewing delay from the more strategic perspective indicated in R v Godin. [60] Once the criminal proceedings recommenced on December 19, 2014 the parties took the first available trial date that met withthe schedules of the parties. Defence counsel submits Mr. Vader suffered considering prejudice beyond that which is presumed becauseof delay itself. Exhibits clearly illustrated Mr.

Vader was the subject of intense and negative publicity. This impeded his ability to work.While Mr. Vader was indeed detained through much of this proceeding, that detention involved other, unrelated offences. This, however,should not negate the negative effect of his detention. He was placed under maximum security or protective custody, and his othermisconduct and/or alleged misconduct did not warrant that kind of step. [61] As for the charges Mr.

Vader faces, while they are serious and that warrants an elevated societal interest in seeing a mattercontinue to trial (R v Morin, (SCC), [1992] 1 SCR 771 at para 108, 12 CR (4th) 1). Mr. Vader argues the Crown, has a“heightened obligation” to ensure serious offences are tried in a timely manner. That is not reflected in how this action unfolded. [62] The only remedy for a Charter, s 11(

b) breach is a stay, and that is the appropriate order here: R v Rahey,

(SCC), [1987] 1 SCR 588, 39 DLR (4th) 481. 2. The Crown [63] The Crown accepts the Accused’s timeline of litigation events and acknowledges that it is responsible for the entire nearlytwo-year period that resulted from the 2014 Stay following discovery of the disclosure issues, and that Mr. Vader did not waive any ofthat delay. [64] However, it also argues that the delay is not an unreasonable delay that breached Mr. Vader’s Charter, s 11(

b) rights. Beyondthat delay Mr. Vader’s criminal prosecution had proceeded well given its complexity and character. Crown Counsel had no basis todetect the disclosure issues until they started to prepare for the trial set to begin at the end of April, 2014. [65] This was a complex matter, and with a trial of this complexity a four year total delay is not unusual or unreasonable.

TheCrown and police had attempted to move the trial forward, but despite best efforts they were frustrated by “the massive nature of thisfile” and as a consequence it “went off the rails.” Two cases are suggested as potential comparators: R v Mack, 2007 ABQB 182, 458 AR 52, Hillier J, confirmed on other grounds 2012 ABCA 42, 2014 SCC 58 - 36 month total delay, 12months Crown delay. R v Caines, 2011 ABQB 82, 43 Alta LR (5th) 226, Greckol J, affirmed R v Alcantara, 2015 ABCA 259, 22 Alta LR (6th) 95 - 4.5 yearsto complete the trial, 11 months of Crown delay, 7–10 months of accused delay.

The Crown stresses these cases were complex, involved serious offences, and stays were refused by trial judges of this Court. [66] While the Crown acknowledges that Mr. Vader has spent a significant amount of his pre-trial period in custody, it argues thisis less of a prejudice than would be the case for the more usual situation where a person is detained in remand pre-trial. During thisperiod Mr. Vader was also detained in relation to other offenses, and in fact convicted and pled guilty to some of these charges. Duringsome of the time post the 2014 stay until recommencement in December 2014, Mr.

Vader was in custody for other alleged offences,though he was ultimately found not guilty of those charges on October 8, 2014. Mr. Vader’s time in remand between July 19, 2010 andOctober 8, 2014 is unrelated to this proceeding. [67] Once the charges were revived in December, 2014 Mr. Vader was very shortly thereafter released, albeit on bail. The Crownconsented to Mr. Vader being switched from house arrest to electronic monitoring so that Mr. Vader could work. The electronicmonitoring via an ankle GPS bracelet is a comparatively non-intrusive form of supervision. B. The Law - Charter, s 11(b) [68] Charter, s 11(

b) protects the rights of persons who are the subject of criminal proceedings to be tried in a timely manner: 11. Any person charged with an offence has the right ... (

b) to be tried within a reasonable time; [69] The modern approach to evaluate a potential breach of Charter, s 11(

b) is provided by R v Askov, (SCC),[1990] 2 SCR 1199, 74 DLR (4th) 355 and R v Morin. The relevant factors are (R v Askov at 1231–32 and R v Morin at para 31): 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. [70] The Supreme Court of Canada in R v Godin, 2009 SCC 26 at para 18, [2009] 2 SCR 3 confirmed these remain the relevantconsiderations: The legal framework for the appeal was set out by the Court in Morin, at pp. 786-89. Whether delay has been unreasonable is assessedby looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasonsfor the delay, the prejudice to the accused, and the interests that s. 11(

b) seeks to protect. This often and inevitably leads to minuteexamination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however,not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, at p. 787, “[t]he generalapproach . . . is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing theinterests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.”

[ 71 ] The four basic factors identified in the Supreme Court of Canada Charter , s 11(

b) jurisprudence involve a balancing of both the rights and interests of the accused and the public.

This Charter provision has multiple intertwined purposes ( R v Askov , at pp 1219- 1220), as Charter , s 11(b): 1. respects an accused person’s right to be presumed innocent until proven otherwise by ensuring an accused person has their alleged misconduct evaluated rather than linger; 2. functionally drives criminal litigation forward to avoid the negative effects of litigation delay, such as faded memories, witnesses dying or disappearing, and evidence deterioration; 3. minimizes pre-trial detention; and 4. meets the community interest of ensuring a timely prosecution and assures fair and just treatment of accused persons. [ 72 ] As with other applications that allege a Charter breach, the accused person has the onus to prove a breach of Charter , s 11(

b) has occurred. However, the mere fact that a person faces criminal proceedings presumptively establishes prejudice, and the nature and degree of prejudice is, in part, established by the length of that delay: R v Morin ; R v Godin at para 31 . Simply put, a longer delay implies greater prejudice.

The Crown has the onus to prove the accused caused a delay, waived a time period, or that a delay did not prejudice the accused: R v Askov at p 1232. [ 73 ] R v Morin at para 50 sets a ‘benchmark’ for acceptable institutional delay of 14-18 months for a trial conducted in a superior court which includes a preliminary inquiry. However, appellate courts have made clear this guideline is not an absolute one. In R v Godin at para 5 Cromwell J indicates that when those targets are “substantially exceeded”, that alone does not necessarily make a delay unreasonable.

In R v Godin other factors, such as Crown delay and low subject complexity, coupled with excessive delay, were what justified a Charter , s 11(

b) remedy. The R v Morin ‘benchmark’ is therefore more a starting point for inquiry than anything else, and instead a Charter , s 11(

b) analysis should reflect factors such as subject complexity, limited institutional resources, and what Carl von Clauswitz called “friction”, which is inherent in any process, like litigation, that involves parties in a dispute or with competing interests. [ 74 ] The cause of delay is evaluated by inquiring as to who caused the delay. Motive is not a factor. For example, in R v Morin at para 44 Sopinka J observed in relation to potential delay by the accused: ... There is no necessity to impute improper motives to the accused in considering this factor.

Included under this heading are all actions taken by the accused which may have caused delay. ... I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc.

I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable . [Emphasis added.] [ 75 ] Justice Cromwell in R v Godin stressed that the causes and duration of delay should not be parsed and divided where that distorts two more critical overarching inquiries: 1. Overall, who, or what, was the root cause of a delay (paras 20-24)? 2.

Which party attempted to move the action forward in a timely manner (paras 25-28)? [ 76 ] This means, for example, that when an accused changes counsel shortly before a hearing or trial, then the accused is responsible not only for the delay inherent in that, but also delays that result from the Crown’s attempts to reschedule the resources of its counsel and arrange new appearances by witnesses.

The accused cannot, for example, argue he or she is not responsible for the delay caused because the Crown prosecutor was not available on the earliest subsequent possible trial date, because the Crown prosecutor had already scheduled another trial. The critical question is instead ‘who set the dominos in motion?’ In this example that is the accused, and the accused person is therefore responsible for the ‘downstream’ consequences. [ 77 ] R v Godin stresses that the kind and duration of delay and the issue of prejudice are intertwined: paras 31, 33.

Increased prejudice is presumed with longer delay (para 31), but elevated prejudice may also be established by other evidence, such as pre-trial detention and strict bail conditions (paras 32, 34). Where the accused’s ability to make a full answer and defence turns on witness credibility then delay is likely to mean prejudice because the passage of time diminishes the efficacy of cross-examination: para 36. [ 78 ] Societal interests also are relevant in this balancing process.

For example, some accused may attempt to employ delay tactics to ‘wait out’ their prosecutions, and that is contrary to the interests of justice: R v Askov , pp 1222-1223, 1228-1229; R v Morin at para 62 . Similarly, more serious offences attract a greater societal interest in evaluating guilt by trial: R v Morin at para 30 . C. Analysis 1. Additional facts [ 79 ] The parties do not dispute much of the critical evidence. Though it is typical for a Charter , s 11(

b) analysis to dissect a criminal proceeding and its various steps one by one, here there really are only two relevant date ranges: 1. the time between when the information was laid (April 18, 2012) and the projected date of trial (March 7, 2016) - almost three years, 11 months, and

2. the time between the entry of the stay (March 19, 2014) and the projected date of trial (March 7, 2016) - almost two years. [80] I do not believe it is necessary to parse out either date range. The parties agree—as do I—that the nearly four year period thathas elapsed bringing this action to trial is a duration that requires investigation for the possibility of unfair and unreasonable delay. Thisrange clearly exceeds the benchmark guidelines identified in R v Morin at para 50. [81] The Crown accepts responsibility for the post-2014 Stay to trial delay. That is clearly correct in law.

In R v Godin at paras 20-24, Cromwell J stressed that delay should be attributed to the party whose conduct triggered or led to the delay. That was the Crown, andthe Crown does not dispute that. [82] In this case waiver of delay by the Accused is not a factor. [83] I have received evidence that Mr. Vader was the subject of intense media attention concerning his alleged misconduct, andaccept that the consequence of that was generally negative for him. The Crown and Accused have generally agreed on the periods andbases on which Mr. Vader was detained during the April 18, 2012 to March 7, 2016 period. Similarly, Mr.

Vader’s strict judicial interimrelease conditions are not in dispute. [84] The Accused argues and the Crown concedes that Mr. Vader’s ongoing pre-trial delay presumptively establishes he has beenprejudiced. That prejudice builds as pre-trial delay stretches into years. 2. Remaining issues [85] This leaves only a limited number of outstanding issues to be examined prior to evaluating the ultimate issue of whether or notMr. Vader’s Charter, s 11(

b) right has been infringed by an unreasonable pre-trial delay. A. Overlapping bases for loss of liberty [86] One facet of the Charter, s 11(

b) right to a timely trial is that an accused person may be denied judicial interim release anddetained in remand, or be in the public but still be restricted by pre-trial bail conditions. Until proven guilty, an accused person ispresumed innocent, and loss of liberty in these ways is a basis to argue elevated prejudice. [87] Mr. Vader’s loss of liberty is not in dispute. What is argued is whether the weight or degree of prejudice that resulted from hisloss of liberty in relation to the alleged murders is reduced or negated by the fact Mr.

Vader was also being detained for other, unrelatedmisconduct. [88] In R v Allen (1996), (ON CA), 92 OAC 345, 110 CCC (3d) 331 (Ont CA), Doherty JA evaluated whetherpre-trial prejudice was incurred by an accused who was in custody on the basis of other charges during a period of delay (para 39).Justice Doherty concluded that no prejudice results from time spent detained on a distinct and separate basis (para 41): The delay in the continuation of the fraud trial had no effect on the respondent's status and did not prolong his custody by so much as oneday.

He was in jail and would remain there until the perjury trial was completed. ... [89] Doherty JA’s decision was subsequently affirmed en toto without further comment by the Supreme Court of Canada in R vAllen, (SCC), [1997] 3 SCR 700, 220 NR 67, and therefore is a binding authority on me. See also R v Blais (2004), (ON CA), 181 OAC 81 at para 4, 182 CCC (3d) 39 (Ont CA). [90] I conclude therefore that the prejudice experienced by Mr. Vader as a consequence of his pre-trial loss of liberty is reduced toa certain extent because he was detained on other independent, and unrelated bases.

That, however, does not account for all of his time inpre-trial detention or under strict bail conditions. Aspects of that pre-trial detention fall to the more severe end of the spectrum, such asdetention in maximum security and protective custody scenarios. Alberta Courts acknowledge remand detention has a harsh characterthat is relevant to a Charter, s 11(

b) analysis: R v Siemens (2000), (AB KB), 260 AR 57 at para 133, 46 WCB (2d)11; R v Caines, 2011 ABQB 82 at paras 500, 501, 565, 43 Alta LR (5th) 226. [91] I therefore conclude that Mr. Vader’s pre-trial loss of liberty is a significant form of prejudice, and that favours a Charter, s11(

b) remedy. B. The character and cause of the Crown’s delay [92] I have previously characterized the RCMP’s conduct in the investigation of Mr. Vader and the resulting disclosure process asnegligent. This reflects on the Crown as a whole. Mr. Vader argues that this changes the ‘flavour’ of the delay that is attributed to theCrown, and that is a factor that should be considered in balancing delay, prejudice, and societal interests. I disagree. [93] In R v Morin Justice Sopinka is explicit that a Charter, s 11(

b) delay analysis is not an assignment of blameworthiness, butinstead an investigation of cause and effect. In R v Godin the Supreme Court of Canada instructed trial courts take a strategic overviewof a trial processes and, for example, ask whether a delay is understandable or explicable, in that case in relation to the Crown’s delay inproviding forensic evidence: at paras 6, 11, 39.

In R v Godin there was no explanation for the Crown’s actions, and the consequentialdelay was attributed to the Crown alone. [94] In the context of this proceeding I believe the ‘flavour’ of the Crown’s delay is relevant when I evaluate the character andsource of the delay between when the Crown recommenced the murder charges against Mr. Vader (December 19, 2014) and the date oftrial (March 7, 2016). This period greatly exceeds the R v Morin benchmark to move a matter to trial in a superior court.

If the reason forwhy the Crown ‘knocked over the first domino’ and set the ‘downstream’ cascade of events in motion was innocent or had a reasonableexplanation then it seems to me that some of the period between when Mr. Vader’s trial was re-set and will be conducted could

potentially be attributed to inherent or institutional delay. [ 95 ] A significant fraction of that time would fall into the latter category because the functionality of the Alberta Court of Queen’s Bench has been badly compromised by inadequate court personnel staffing and a judicial complement that is woefully understrength on a per-capita basis when compared to other provincial superior courts in Canada. This fact is notorious and has been repeatedly emphasized by the administrative justices of this Court.

Escalating pre-trial delays are the inevitable result of this ongoing neglect of and support for the Court. [ 96 ] This is well known to experienced criminal trial counsel, such as those involved in this matter. That is one reason why I put no weight on the fact that neither sought to have this trial heard on an accelerated or expedited basis. As this Charter , s 11(

b) analysis shows, there is a powerful basis for the parties and court to engage in collaborative attempts to obtain an earlier trial date to respect Mr. Vader’s right to a timely hearing. The simple fact is that the well is dry, and any attempt to accelerate the resumed trial process would have been futile. [ 97 ] The Crown has already conceded that it is responsible for the post-stay to trial period of delay, and I agree - but the basis to allocate that delay to the Crown and not to court dysfunction is that the Crown’s ‘upstream’ reason for the delay is problematic: negligent pre-trial preparation.

I therefore reject Mr. Vader’s argument that the cause of delay is directly a factor to evaluate prejudice. C. Steps to advance the second trial [ 98 ] Another issue is whether one of the parties has been more active in moving this matter to trial. In R v Godin , Cromwell J at para 27 indicates an important factor to evaluate the delay.

In that case, only the defence counsel appeared “to have made any effort to move this matter ahead more quickly” but “this effort was met with ‘radio silence’”. [ 99 ] However, review of the record in this case does not support a conclusion that either Crown or defence counsel can be criticized on this basis: December 19, 2014 : charges recommenced. January 23, 2015 : the parties met with the trial coordinator and selected the trial date for March 7, 2016. ACJ Rooke confirmed the trial dates of March 7 to April 18, 2016 in QBAC that same day.

March 5, 2015 : letter from me to the parties asking counsel to have Rooke ACJ appoint me as a case management judge. March 10, 2015 : Crown counsel writes ACJ Rooke to request my appointment as case management judge; counsel for Mr. Vader indicates that appointment is not necessary. March 12, 2015 : ACJ Rooke appoints me as case management judge. April 23, 2015 : I write the parties asking about pre-trial motions, with a 10 day deadline for response. April 24, 2015 ; the Crown responds that it anticipates no motions, but that a case management meeting would be of assistance.

April 28, 2015 : counsel for the Accused indicates it plans an application to argue abuse of process and unreasonable delay. April 30, 2015 : the Crown suggests possible dates for the pre-trial voir dire . May 4, 2015 : I suggest dates for pre-trial applications in November/December 2015. May 4–12, 2015 : the pre-trial motion dates are confirmed. June 24–July 2, 2015 : communications among all counsel and me to set a date for a case management hearing. July 3, 2015 : case management meeting #1 is set for Sept. 17, 2015. Sept 11, 2015 : I send the parties an agenda for the Sept. 17, 2015 case management meeting.

Sept 17, 2015 : the case management meeting is held. Sept. 28, 2015 : I issue a case management order for the Sept. 17, 2015 meeting. October 23, 2015 : case management meeting #2 is held. [ 100 ] As this timeline illustrates, both the Crown and defence counsel were involved and responsive in the pre-trial process.

No one was ‘pushing the action’ nor was there “radio silence”. [ 101 ] I conclude therefore that both parties took reasonable steps to move this action to trial, particularly given the difficulty that comes with scheduling and organizing a lengthy criminal trial in a court with severely limited resources. 3. Balancing delay, prejudice, and societal interests [ 102 ] The final step in the Charter , s 11(

b) analysis is to balance the relevant facts: overall delay, its cause(s), prejudice to the accused, and other relevant factors such as societal interests in timely litigation. The Crown admits it caused substantial delay. Mr. Vader has proven he was the subject of significant prejudice as a consequence, including the prejudice of ongoing suspicion, detention and other

losses of liberty, and an unusual degree of media scrutiny. [103] The Crown stresses that Mr. Vader is charged with committing very serious offences. More serious charges attract an elevateddemand that societal interests be served by those offences being tested in court and not dropped on the wayside. R v Morin at para 30states: ... As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. ... [104] Both the Crown and Mr.

Vader cited cases that they proposed would assist to evaluate how this Court should proceed whenfaced with significant delay, prejudice, but a very serious alleged offense scenario. I have identified other potential examples. They aresummarized in Appendix “B”. [105] These cases, however, provide little useful guidance. As counsel for the Accused observed, Charter, s 11(

b) applications arehighly fact specific. R v Godin essentially gives that direction when the Supreme Court of Canada stressed that whether a trial delay is oris not reasonable can only be evaluated from a global, integrated perspective. What is clear from the comparators is that where accusedpersons have faced serious offense scenarios and encountered delays similar to that in this prosecution that Canadian courts have bothordered and denied Charter, s 11(

b) remedies. In other words, Mr. Vader’s trial rests on the threshold of being unreasonably delayed. [106] This balancing exercise here, in my opinion, is chiefly between: 1. the fact that Mr. Vader has suffered real prejudice that was caused by the Crown due to this much delayed trial, and 2. the societal interest that Mr. Vader face trial for a full and proper adjudication of his alleged very serious misconduct. [107] Cory J in R v Askov at paras 90-91 examined the struggle between these two very important factors in the context of that case,and as to why a stay was appropriate: 90 The delay in this case is such that it is impossible to come to any other conclusion than that the s. 11(

b) Charter rights guaranteedto the individual accused have been infringed. As well, the societal interest in ensuring that these accused be brought to trial within areasonable time has been grossly offended and denigrated. Indeed the delay is of such an inordinate length that public confidence in theadministration of justice must be shaken. Justice so delayed is an affront to the individual, to the community and to the veryadministration of justice.

The lack of institutional facilities cannot in this case be accepted as a basis for justifying the delay. 91 I am well aware that as a consequence of this decision, a stay of proceedings must be directed. This is, to say the least, mostunfortunate and regrettable. It is obvious that the charges against the appellants are serious. Extortion and threatened armed violence tearat the basic fabric of society. To accede to such conduct would constitute a denial of the rule of law and an acceptance of a rule thatunlawful might makes right. The community has good reason to be alarmed by the commission of serious crimes.

There can be no doubtthat it would be in the best interest of society to proceed with the trial of those who are charged with posing such a serious threat to thecommunity. Yet, that trial can only be undertaken if the Charter right to trial within a reasonable time has not been infringed. In this casethat right has been grievously infringed and the sad result is that a stay of proceedings must be entered.

To conclude otherwise wouldrender meaningless a right enshrined in the Charter as the supreme law of the land. [108] This passage is helpful because it highlights the critical underlying policy factors that drive the operation of Charter, s 11(b): 1. the constitutional right of the accused to timely resolution of his criminal action, 2. maintaining the public’s confidence in the administration of justice by ensuring that criminal proceedings are resolved in a fairand timely manner, and 3. ensuring that the administration of justice is not harmed by de facto tolerance of the kinds of serious misconduct that attack thecommunity’s safety and the rule of law itself. [109] It is therefore apparent that the lens through which one examines societal interest is essentially via the administration of justiceas it is perceived by the community.

Put another way, the public is both offended when an accused person lingers in the criminal justicesystem without good reason, but also that the best interests of society require that potential offenders are brought to trial and do not evadesanction by ‘slipping through the cracks of the system’. [110] In the early Charter, s 11(

b) judgment of R v Rahey, (SCC), [1987] 1 SCR 588 at para 123, 39 DLR (4th) 481,Justice La Forest linked the multipurpose role served by Charter, s 11(

b) to the fact this right is one of not just the accused, but thecommunity - Charter rights “belong to all of us”: I would add that Charter rights are not exclusively and narrowly aimed at the accused.

They belong to all of us, and the reasons for thedelay may play a legitimate role in assessing the remedy, at least to the extent that it has a tendency to put the administration of justiceinto disrepute. ... [Emphasis added.] That is because Charter rights protect the administration of justice - for all of us. [111] Recently in R v St-Cloud, 2015 SCC 27, [2015] 2 SCR 328, the Supreme Court of Canada has commented on what it means“...to maintain confidence in the administration of justice ...”.

R v St-Cloud does not involve Charter, s 11(b), but instead interpretsCriminal Code, s 515(10)(c)), what is commonly called the “tertiary ground” on which to determine whether an accused should havetheir liberty restricted and be denied pre-trial judicial interim release.

That is clearly a discrete subject, but R v St-Cloud is neverthelessrelated to the balancing exercise I face here, because in both examples the counterweights are the rights of an accused who is presumedinnocent until proven guilty, and the community’s confidence that the criminal justice apparatus and the courts operate in a manner thatprotects the public, and responds to potential criminal misconduct.

[ 112 ] Wagner J for the entire court made certain observations that are relevant. First, he rejected that this inquiry should consider whether an offence is “unexplainable” or “horrific” (paras 46, 49), or that the comparative rarity of an offence type is relevant (para 52). Comparisons or valuations of this type are not the kind that “... could potentially undermine the public’s confidence in the administration of justice”: para 52.

While Criminal Code , s 515(10)(c)) does enumerate certain relevant factors, these are not the only elements that a judge should consider when evaluating “... confidence in the administration of justice”: para 68. Instead, this is a broad, contextual inquiry. [ 113 ] Justice Wagner continued to investigate just ‘who is the public’ and how should the courts evaluate and balance their concerns with the realities of the criminal justice system and the rights of the accused: paras 72-86. He stresses that public confidence is subverted by failure of the courts and criminal justice systems.

Both unnecessary detention and inappropriate release of dangerous persons undermine confidence in the administration of justice: para 85. [ 114 ] He concludes the courts should not accede to “mob justice” but “... must also be sensitive to the perceptions of people who are reasonable and well informed. ...”: para 83. Media reporting is relevant, but should not decide the issue: paras 83-84.

The court must step into the shoes of an informed, reasonable member of the public: To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case.

However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused. [ 115 ] While I am very conscious of the fact that R v St-Cloud involved a different procedure, I think it is a useful resource for a broader appreciation of how courts balance the rights of accused people and the interests of society. In some ways they align, in other senses they diverge. I do not need to imagine much into the circumstances of Mr. Vader’s alleged misconduct.

No properly informed, reasonable member of the public wants to see a murderer evade social control, provided of course the Crown can prove its case against an accused “beyond a reasonable doubt” standard. Mr. Vader is alleged to have targeted a vulnerable component of our community, the elderly, and that would naturally also be a concern to any reasonable layperson. [ 116 ] An informed public observer would also consider and be troubled by the duration of Mr. Vader’s path to trial, particularly his pre-trial detention, but that is ameliorated to a degree by the fact Mr.

Vader has been involved in other criminal litigation. The intense and ongoing reporting is an interesting factor. On one hand, the reasonable informed observer would know that Mr. Vader’s life ‘under the spotlight’ cannot be such an easy thing, particularly when detained in remand. That has caused Mr. Vader genuine prejudice. [ 117 ] But, objectively, that prejudice goes two ways. For years the alleged murders have cast a shadow over Mr. Vader’s life, but that shadow will only lift if Mr. Vader has the opportunity to answer and respond to the allegations against him at a trial. Here, Mr.

Vader’s right to a timely trial and the public’s confidence in the administration of justice align. Both want Mr. Vader tried in a fair and open procedure where the charges against Mr. Vader are adjudicated to a standard accepted by the community, rather than in newspaper crime articles and television stories. [ 118 ] The reasonable and well-informed observer would be very troubled by the bungling that caused the first trial to be abandoned, but would also understand that this ‘failure of the system’ was also a sign of its strength. Ms.

Doyle at the time engaged in a good-faith damage control step that, itself, raises confidence in the administration of justice. This does not justify the subsequent two years of delay, but, rather, a properly informed member of the public would certainly agree that the decision to not proceed to trial in April 2014 was co

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