Her Majesty the Queen - v. -, 2013 SKPC 033

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 033 Date: March 11, 2013 Information: 24480618 Location: La Loche _____________________________________________________________________________ Between: Her Majesty the Queen - and - James Calvin Herman Appearing: Gerald R. Perkins For the Crown Karen T. Srodulski For the Accused DECISION W. R. CAMPBELL , J [ 1 ] The Accused (hereinafter referred to as the “Applicant”) has brought a Motion for Charter relief based on an alleged infringement of his right to be tried within a reasonable time, as guaranteed by subsection 11(b). The relief he seeks is a stay of proceedings pursuant to subsection 24(1).

BACKGROUND [ 2 ] The Applicant was charged on information 24432954 (the “original information”) that: On or about the 19 th day of May, A.D. 2011 at La Loche, in the Province of Saskatchewan, [he] did: Charge #1: Possess a substance included in

Schedule II to wit Cannabis Marijuana in an amount not exceeding 3 kilograms for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act ; and Charge #2: Wilfully obstruct La Loche Royal Canadian Mounted Police engaged in the lawful execution of their duties by attempting to hide a controlled substance under the Controlled Drugs and Substances Act from members of the Royal Canadian Mounted Police contrary to

Section 129 (

a) of the Criminal Code . The Applicant was the only person charged on the original information. [ 3 ] The original information was sworn on the 20 th of May, 2011.

An Undertaking Given to a Justice or a Judge dated that same day obligated the Applicant to appear in La Loche Provincial Court on the 27 th of June, 2011, and to comply with a number of conditions, including those: prohibiting the possession and use of mobile electronic communication devices; permitting warrantless searches of his person, vehicle and residence by peace officers regardless of whether reasonable grounds for the searches existed; and prohibiting the possession or consumption of non-prescribed drugs. [ 4 ] The Applicant was subsequently charged on information 24480618 (the “replacement information”).

On the replacement information, the Applicant was charged jointly with another person. There was only one charge on the replacement information, alleging that the Applicant and his co-accused did: On or about the 19 th day of May, A.D. 2011 at La Loche, in the Province of Saskatchewan, possess a substance included in

Schedule II, to wit: cannabis marihuana in an amount not exceeding 3 kilograms for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act. [ 5 ] According to the jurat on the replacement information, it was sworn the “24 th day of May, A.D. 200”. This was undoubtedly a typographical error, and was meant to indicate the 24 th of May, 2012. The Applicant made his last appearance on the original information, and his first appearance on the replacement information, on the 24 th of May, 2012.

That day, the original information was withdrawn, and the replacement information was presented. The Undertaking of the 20 th of May, 2011 was transferred from the original information to the replacement information. The trial of the s. 5(2) Controlled Drugs and Substances Act charge on the replacement information is now set for March 14, 2013.

FACTS [ 6 ] For the purposes of this application, the Applicant and the Crown (the “Respondent”) have agreed that: - the endorsements on the original information and the replacement information, - the facts stated in paragraphs 2 through 15 of the Applicant`s Memorandum to the Presiding Judge, - the police version of the facts of the crime alleged against the Applicant in the Prosecutor’s Information Sheet detailed below, and - the Court’s recordings of three appearances on the informations

will be the facts upon which I am to make my determination. All trial dates on both informations were scheduled for the Provincial Court at La Loche. [ 7 ] From the endorsements on the two informations and the portion of the Applicant’s Memorandum mentioned above, the history of proceedings on the two informations is as follows: (

a) On the original information, the Applicant made his first appearance on the 27 th of June, 2011. He sought and obtained an adjournment to the 11 th of July, 2011 to allow him to seek counsel. (

b) Still on the original information, the Applicant subsequently appeared on the 11 th of July, the 25 th of July, the 15 th of August, and the 22 nd of August, 2011. Each of those times, the matter was adjourned at the request of the Applicant. (

c) On the 19 th of September, 2011 not guilty pleas were entered by the Applicant to both charges on the original information. The 19 th of January, 2012 was scheduled as the trial date. (

d) On the 19 th of January, 2012, the trial did not proceed. As a result of inclement weather, Court was not held at La Loche. A second trial date, the 24 th of May, 2012, was chosen. (

e) On the 24 th of May, 2012, the trial did not proceed. As indicated earlier, the original information was withdrawn that day and the replacement information was sworn and placed before the Court for the first time. The replacement information was adjourned to the 4 th of June, 2012 at the request of “the defence”. The 24 th of May, 2012 appearance date is the first of three for which counsel for the Applicant and counsel for the Respondent have asked me to listen to the recording of the proceedings to determine whether any further information about what transpired can be obtained. (

f) On the 4 th of June, 2012, the Applicant entered a not guilty plea to the charge in the replacement information. A trial date of the 14 th of March, 2013 was chosen. The replacement information was also adjourned to the 18 th of October, 2012 to determine whether an earlier trial date was available. This appearance date is the second of three for which I have been asked to listen to the recording. (

g) On the 18 th of October, 2012, the endorsement on the replacement information indicates that no earlier trial date than the 14 th of March, 2013 was available. This appearance date is the third and last for which I have been asked to listen to the recording. [ 8 ] The 14 th of March, 2013 will be the first trial date on the replacement information.

It will, however, be the third date scheduled for trial for the s. 5(2) Controlled Drugs and Substances Act charge that the Applicant has faced since the 20 th of May, 2011. [ 9 ] A review of the recording for the 24 th of May, 2012 shows that on that day the prosecutor told the presiding judge that although the original information was set for trial, it would be replaced by the replacement information. The Applicant indicated he had just received a copy of the replacement information.

At the prosecutor’s request, and by consent, the Undertaking from the original information was transferred to the replacement information. The prosecutor then withdrew the original information. The prosecutor advised the presiding judge that the Applicant’s co-accused had a similar charge scheduled for Court on the 4 th of June, 2012, and would also be facing a withdrawal of her charge in favour of the replacement information.

The Applicant asked the presiding judge to set a trial date on the replacement information that day, indicated he had subpoenaed a witness who was present and by setting a new trial date, he could ask the presiding judge to order that witness to re-attend Court on the new trial date. The presiding judge refused to set a trial date for the Applicant on the replacement information, indicating that he could not do so without counsel for the co-accused first entering a plea on the replacement information and agreeing to the new trial date. The Applicant indicated that delay would be an issue in this matter.

The presiding judge adjourned the Applicant’s replacement information to the 4 th of June, 2012, read the replacement information to the co-accused, reminded her that she would also be required in Court on the 4 th of June, 2012, and that for both the Applicant and the co-accused, their matters would be for plea that day. Nothing further was said by anyone about the fact that the trial on the original information was not proceeding that day.

[ 10 ] The recording for the 4 th of June, 2012 indicates that the co-accused’s original information was withdrawn, and on the replacement information charging both the Applicant and co-accused not guilty pleas were entered by each. The Applicant and co- accused indicated they wanted the trial scheduled at the earliest opportunity. The Applicant indicated an issue preliminary to the trial would be delay.

The co-accused’s counsel then advised the Court that his first available date for trial was the 14 th of March, 2013, and he would be prepared to waive delay to that day, despite the presiding judge offering several earlier dates for trial in December of 2012 and January of 2013. The presiding judge then scheduled the trial for the 14 th of March, 2013, and also scheduled the matter to be spoken to on the 18 th of October, 2012.

The presiding judge indicated that on the 18 th of October, if an earlier date was available to counsel and the Court for trial, it could be chosen then. [ 11 ] The recording for the 18 th of October, 2012 indicates that the presiding judge left the replacement information for trial on the 14 th of March, 2013. He indicated that a special sitting day would not be fixed, given the fact that neither the Applicant nor the co- accused was in custody. The co-accused’s counsel also suggested he would not be available for a trial date prior to the 14 th of March, 2013. The application for Mr. Herman pursuant to s. 11(

b) of the Charter was scheduled for the 24 th of January, 2013. [ 12 ] The Applicant and Respondent have told me that the facts of the crime alleged against the Applicant in the Prosecutor’s Information Sheet are as follows: On the 19 th of May, 2011, a search warrant was executed at 714 La Loche Avenue in La Loche, Saskatchewan, which was the residence of the Applicant. The Applicant was arrested and transported to the La Loche R.C.M. Police detachment.

As a result of the search warrant, within the house the police found a bag with 12 individually wrapped bags inside, each containing three to four grams of marijuana. In a different room in the house, police found additional marijuana which weighed four grams in a garbage can. The total amount seized was 51 grams. The Applicant gave a statement to police on the 20 th of May, 2011 under warning in which he said that the marijuana found in the house was his. He panicked and threw the 12 individually wrapped bags in one room and the other four grams into a garbage can in another room.

He was able to tell police the locations within the house where the marijuana was found, and the quantities of the marijuana found. POSITIONS OF THE PARTIES [ 13 ] The Applicant argues that unreasonable delay exists in this matter, and that he is responsible for only about two months of the delay. He says that the entire time that he has been charged with a s. 5(2) Controlled Drugs and Substances Act offence, from the 20 th of May, 2011 until the 14 th of March, 2013, should be considered in examining this issue, and so the total delay for which he is not responsible is about 19 months.

He says he has suffered prejudice which can be inferred from the delay, that his right to be tried within a reasonable time guaranteed by s. 11(

b) of the Charter has been infringed, and that the Court should stay proceedings as a remedy. [ 14 ] The Respondent concedes that there has been a delay in trying the Applicant’s charge. The Respondent also says that the delay is from the 20 th of May, 2011 until the 14 th of March, 2013, and that this delay warrants further inquiry because it is prima facie unreasonable.

The Respondent argues that the Applicant should be responsible for about four months of the delay, and that the remainder of the delay, about 18 months, is explained and is not the fault of the Respondent any more than it is the fault of the Applicant. The Respondent further argues that no specific prejudice to the Applicant is shown. The Respondent concludes that the Applicant’s right to be tried within a reasonable time has not been infringed, and so no remedy should follow. ISSUES 1.

In examining whether an unreasonable delay in bringing the Applicant to trial exists, should both the period of time from the 20 th of May, 2011 until the 24 th of May, 2012, and from the 24 th of May, 2012 until the current trial date, be considered ? 2. Has the Applicant’s right to be tried within a reasonable time been infringed? 3. If the answer to question 2 is “yes”, what is the appropriate remedy?

ANALYSIS 1. In examining whether an unreasonable delay in bringing the Applicant to trial exists, should both the period of time from the 20th of May, 2011 until the 24th of May, 2012, and from the 24th of May, 2012 until the current trial date, be considered? [15] In Re Garton and Whelan (1984), 4 C.C.C. (3d) 449 (O.H.C.J.), the accused was discharged following a preliminary hearing on acharge of first degree murder.

On a subsequent application to bring a private prosecution, Evans C.J.H.C. found that the accused hadbeen properly discharged at the preliminary hearing, and further found that an indictment should not be preferred against the accusedpursuant to s. 507 [now s. 577] of the Criminal Code. In obiter, the Court went on to consider s. 11(

b) of the Charter. The Courtrejected the proposition that the only period of time to consider on this issue was the time between the preferring of a fresh indictmentand the eventual trial on that indictment, and instead determined that the time period to consider on this issue was the entire time fromthe laying of the original information to the eventual trial. [16] R. v. Padfield (1992), (ON CA), 79 C.C.C. (3d) 53 (Ont. C.A.) dealt with an accused originally charged withtwo counts of indecent assault, each naming a different complainant.

Following committal on those counts, the Crown indicted theaccused on three charges, being two counts of indecent assault and one count of sexual assault, in which the same two complainants andthe same time frame was encompassed. The Court of Appeal found that despite the sexual assault charge being a new charge laid onlyonce the indictment was filed, the allegation that formed the substance of that charge was before the Court when the accused was firstcharged with the two counts of indecent assault. Accordingly, the time frame necessarily considered in a s. 11(

b) Charter applicationbegan with the swearing of the information alleging two counts of indecent assault, and did not begin only when the indictment was laterfiled. At page 58 of the decision, Doherty J.A., speaking for the Court, said: I view the splitting by the Crown of count 1 in the information to form two counts in the indictment as akin to an amendment bydivision as contemplated by s. 590(3) of the Criminal Code.

Both counts 2 and 3 in the indictment had their genesis in count 1 in theinformation. [17] Re Garton, supra and Padfield, supra followed a similar approach to the earlier Ontario Court of Appeal decision in R. v. Antoine(1983), (ON CA), 5 C.C.C. (3d) 97, which found that the appropriate time period relevant to a s. 11(

b) Charterapplication should begin with the date of an information initially charging a fraud offence, notwithstanding that the indictment flowingfrom this information was later quashed and replaced with a second indictment charging essentially the same offence. [18] The situation here is similar to that found in the cases mentioned above, and perhaps most analogous to the situation in Padfield,supra. Here the original information upon which the Respondent chose to proceed charged only the Applicant. The replacementinformation charges the Applicant and another person jointly.

Both informations allege that a virtually identical crime has beencommitted by the Applicant. [19] I find that the entire period of time from the swearing of the original information, the 20th of May 2011, until the current trial date, the 14th of March, 2013, should be considered in examining whether an unreasonable delay exists. 2. Has the Applicant’s right to be tried within a reasonable time been infringed? [20] In determining this issue, R. v. Morin, (SCC), [1992] 1 S.C.R. 771, instructs that the following factors are to beconsidered when balancing the interests s. 11(

b) of the Charter seeks to protect: 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 [at para. 26]. The length of the delay [21] The original information was sworn on the 20th of May, 2011. The trial is now scheduled for the 14th of March 2013, about 22months later. Both the Applicant and Respondent agree that this delay requires further examination. Waiver of time periods [22] According to Morin, supra, in order to constitute waiver, the accused person must have turned his or her mind to the right to betried within a reasonable time, and have made a conscious decision to surrender that right, at least for a period of time.

In the case of R.v. Paranteau (2010), 2010 SKQB 146 , 355 Sask. R. 123, (Sask. Q.B.), Maher J. considered pre- and post-Morin decisions ofthe Supreme Court of Canada in R. v. Smith, (SCC), [1989] 2 S.C.R. 1120, R. c. Brassard, (SCC),[1993] 4 S.C.R. 287 and R. v. Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3, as well as the trial judge’s reasoning in Godin, supra. Mr. Justice Maher found that because Mr. Paranteau had counsel, waiver existed for the time period beginning when counsel filed hisdesignation to the preliminary hearing date subsequently set.

He observed that counsel gave no notice of an objection to the preliminaryhearing date based on delay. [23] In this case, for the time period between September 19, 2011, when not guilty pleas were entered on the original information, andthe first trial date of January 19, 2012, no evidence exists to indicate that this delay was unacceptable to the Applicant, and I find thatwaiver applies to this four month period. There were no further periods of time waived by the Applicant or his counsel.

The reasons for the delay [24] Morin, supra recognized that several factors will contribute to delay in moving an accused person’s matter from commencementto conclusion. It provided a non-exhaustive list of factors to consider. One such factor is the inherent time requirements of a case. Thiscase involves what appears to be a relatively straightforward allegation, without unusually complex or lengthy evidence.

There isnothing known about unusual events, for example, which might have caused the case to take an unusually lengthy or brief time to movethrough the Court. [25] A second factor to consider is the institutional resources available to bring a matter from commencement to conclusion. In R. v.Cheecham (2010), 2010 SKPC 20 , 355 Sask. R. 90, (Sask. Prov. Ct.), Nightingale J. pointed out the unique situation withrespect to the institutional resources then available to bring most criminal matters from commencement to conclusion in northwestSaskatchewan.

Both Cheecham, supra, and the Applicant’s matter would be tried at the same Provincial Court location in La Loche. There have been some changes, though most are relatively minor, to the administration of criminal law in northwest Saskatchewan fromthat described in Cheecham, supra, and the lawyer tasked with prosecuting the Applicant’s matter is not an employee of the PublicProsecutions Branch.

Those changes aside, Nightingale J.’s comments at paras. 14 through 23 of Cheecham, supra are equallyapplicable here: Criminal justice in northwestern Saskatchewan is administered by a group of justice professionals who largely reside in the City ofMeadow Lake. From that location we serve ten smaller communities, as well as the City of Meadow Lake itself. Access to LaLoche,and to a number of the other communities, is achieved by chartered aircraft because these villages are simply too remote to be served byroad.

The flight to LaLoche takes one hour; adding to that the time required to travel from the Meadow Lake Courthouse to the aeroportand from the landing strip at LaLoche to the court facility there means that the total commuting time is approximately two hours at eachend of the working day. We are unable to travel to conduct court when there is fog or freezing rain, because pilots are not allowed to fly aircraft under thoseconditions.

When the temperature falls below -30°C, provincial occupational health and safety regulations state that ProvincialGovernment employees need not travel, although they may consent to do so. In practice in the administration of justice in northwesternSaskatchewan, we do not travel by air at a temperature colder than -34°C. The number of times when fog, freezing rain or extreme cold

occur in the course of a year is, of course, not ascertainable in advance, and all we can do is try to maintain as regular a court

schedule as possible . . . The presence and effect of the weather can be neither changed nor predicted. I turn next to discuss limitations on institutional resources. I will describe in some detail the resources at hand and how we manage them. Three Provincial Court Judges serve the northwest, together with five prosecutors employed by the Saskatchewan Ministry of Justice Public Prosecutions Branch and seven defence lawyers employed by the Saskatchewan Legal Aid Commission.

In the case of the Legal Aid Commission, while there are seven positions for lawyers, at present one is vacant and another is used primarily in the provision of legal services to family law clients. Several other lawyers in private practice, from Meadow Lake and elsewhere, make occasional appearances . . . but the vast majority of the work is handled by lawyers from the Public Prosecutions Branch and the Saskatchewan Legal Aid Commission. Each constituent in this court party rotates their duties on a different schedule, with one judge, one or more prosecutors and one defence lawyer assigned to each community.

The judges serve an annual rotation, switching court circuits at the beginning of January. In a year, we deal with a total of approximately 50,000 appearances by accused persons, a number which has been relatively constant for the past three years. These appearances occur for a variety of reasons, such as adjournments for accused persons to seek the advice of counsel, the entry of plea, bail hearings and, of course, for trials. Of those appearances, roughly 10,500 are made at LaLoche. We handle this volume of cases in a number of ways. Court at LaLoche is scheduled every Monday and Thursday.

Mondays are notionally used for docket appearances - first appearances, adjournments, bail hearings and changes to bail conditions. Thursdays are theoretically reserved for the hearing of trials and preliminary hearings, but oftentimes we also deal with people who have been arrested since Monday and who are entitled to have their release from custody considered in a timely manner. In the booking of trial time, a variety of techniques are applied in an effort to reduce delay. The regularly scheduled Thursdays are deliberately grossly over-booked by the judge who selects trial dates.

We set in a total of fifteen to twenty witnesses a trial day, in whatever combination of trials will fit. Experience shows that on average, it takes approximately half an hour for each witness to testify in a criminal trial, slightly longer when English is not the witness’ first language. On the occasions when a witness or an Accused requires full

interpretation between Dene or Cree and English, the time doubles. Booking fifteen to twenty witnesses a day clearly means that if all the trials proceed, there will not be sufficient time to hear them all. More often than not, and for a variety of reasons, some matters fall through on each given trial day and the matters which do proceed can fit into the available time. Indeed, sometimes enough cases fall through that the court day ends early. Several times a year at each of the various court points however, we are “caught” by our deliberate over-booking, and there are more cases than time . . . We also routinely

schedule extra trial days, filling in the “blank” days in our court calendar as and where needed. When an Accused fails to win release and is awaiting trial on remand, we follow a practice of adding that person’s trial to an already full day, recognizing that time weighs especially heavily on a person in pre-trial custody and that their case should therefore receive priority. We also try by the same means to expedite the trial of an accused person whose case has been delayed through over-booking or weather, unless the individual expresses a clear waiver of concern over the delay.

On such days, those not in custody may lose their opportunity for a trial that day, and will have to wait for the next available regular trial day. Where a case features fifteen or more Crown witnesses or is otherwise anticipated to require more than a day to hear, we conduct settlement and management pre-trial conferences in an attempt to either resolve the matter without trial or at least pare the witness list if possible.

Through the application of these techniques, we strive to keep the time between the laying of a charge and the conduct of a trial or preliminary hearing within the guidelines set out in Askov, supra, and Morin, supra . . . The working day for the court party serving LaLoche, as well as for those travelling to other commuting court points, begins at 8:00 a.m., when we leave our offices for the aeroport. On arrival at the court point, Informations are sorted and prepared, clients consult with their lawyers and the presence or absence of witnesses is ascertained.

Court begins at 10:00 a.m. and continues, with a brief lunch break, until all the cases are heard or until exhaustion prevails . . . In this way we manage the resources made available to us, and mostly succeed in keeping trial delay barely under control. Since the time between the entry of a not guilty plea and a trial lies at the outer edge of constitutional acceptability, any delay beyond that initial trial date is likely to attract concern over the Charter

section 11(

b) right. There are, of course, risks to operating a criminal justice system as we do in northwest Saskatchewan. One of those risks is that on any given trial day, hearings will not fall through and there will be more cases than time . . . Another ever-present risk is that the weather will prevent travel and we will lose the entire trial day.

[26] In Morin, supra, among the issues considered in the discussion of institutional resources was government resourcing of the state-funded portions of the criminal justice system. The Supreme Court of Canada cautioned that an “administrative guideline” wasimportant to ensure maintenance of the constitutional obligation on government to commit sufficient resources to prevent unreasonabledelay. During this discussion, the Court determined that an appropriate administrative guideline for a case to move through a ProvincialCourt was a period from eight to 10 months.

The Court was, however, careful to point out that this time frame was not a limitationperiod, was not to be treated as inflexible, and would on occasion yield to other factors. The Court also noted that local conditions andtemporary changes in circumstances should inform any discussion of the issue of the availability of institutional resources. The Courtobserved in Morin, supra: A guideline is not intended to be applied in a purely mechanical fashion. It must lend itself and yield to other factors [at para. 46]. [27] R. v.

MacDougall, (SCC), [1998] 3 S.C.R. 45 considered the relationship between the inherent timerequirements of a matter and the institutional resources available to try the matter. McLachlin J. (as she then was), said for a unanimousCourt: The period of time attributable to inherent time requirements is the period of time that would normally be required to process a case,assuming the availability of adequate institutional resources. The period of time attributable to inherent time requirements is neutral anddoes not count against the Crown or the accused in the s. 11(

b) reasonableness assessment. The inherent time required to process a particular case must not be confused with the average time required to process a case of that type. All cases have “inherent time requirements needed to get a case into the system and to complete that case”: R. v. Allen (1996), (ON CA), 1 C.R. (5th) 347 (Ont. C.A.) at pp. 363-64, per Doherty J.A., aff'd (SCC), [1997] 3 S.C.R. 700(S.C.C.); Morin, at p. 792, per Sopinka J.

While the complexity of a case is often cited as a factor contributing to delay resulting frominherent time requirements, “each case will bring its own set of facts which must be evaluated”: Morin, at p. 792. In other words, theinherent time requirements of a case are not limited to commonplace delays which occur in every situation, but may include delay due toextraordinary and unforeseeable events: Allen, supra [at paras. 44 and 45]. [28] In this case, it is important to not only consider the eight to 10 month guideline from Morin, supra, for moving the Applicant’smatter through the Provincial Court to trial.

It is also important to keep in mind that the relationship between the inherent timerequirements of this case and the institutional resources available to deal with the case in La Loche will mean that this guideline shouldbe used with particular caution. [29] Actions of the Applicant will also be scrutinized when considering reasons for the delay. In this case, on the Applicant’s firstappearance he adjourned the matter to consult counsel, and then further adjourned the matter several times before entering his not guilty plea on the original information.

From the Applicant’s first appearance on the 27th of June, 2011, until his entry of the not guilty plea on the 19th of September, 2011, about three months passed. These actions of the Applicant are directly responsible for about three monthsof the delay. [30] Actions of the Respondent are another in the list of factors to be considered. The most important of these actions to the questionof the reasonableness of the delay was the choice by the Respondent to proceed with the replacement information on May 24, 2012, thesecond date set for trial on the original information.

There is no explanation for the Respondent’s choice to proceed on the replacementinformation just over a year after the original information had been laid, and on the second date set for trial on the original information,rather than much earlier in the process. As a result, some of the delay resulting from the loss of the May 24, 2012 trial date must beattributed to the Respondent. [31] At the same time, it must be kept in mind that it is preferable to try people alleged to have committed the same crime together,for a number of reasons.

When this occurs, there may be delays not found in cases not involving co-conspirators. When accused aretried together for a crime, the proceedings often become more complex, and more accused persons and counsel must move theproceedings forward at a pace that accommodates all of them. This is considered in R. v. Richards, 2012 SKCA 120 at paras. 42 and 43. In setting a date for trial on the replacement information into March of 2013, the delay from June of 2012 was due to the

schedule of theco-accused and her counsel, and should be expected where there is more than one accused and more than one defence counsel whoseschedules must be accommodated. [32] The replacement information was also adjourned from the day it was presented on the 24th of May, 2012, until the 4th of June,2012. This adjournment of 11 days was at the Court’s request, as explained above.

[ 33 ] Other reasons for the delay besides those already discussed are also to be considered. One such reason in this case was the inability of the Court, prosecutor and defence lawyer to travel to La Loche on the 19 th of January, 2012, the first trial date on the original information. The evidence indicates that this inability to travel was due to the weather. This is not an unusual phenomenon in northwestern Saskatchewan, as discussed earlier.

Where there has been a delay due to weather or other conditions over which neither the Crown nor defence have control, this delay is not the fault of either, but is better considered a factor in the institutional resources available to move the matter to conclusion. Prejudice to the Applicant [ 34 ] R. v. Godin , supra assists with the question of how to assess prejudice to the Applicant as a result of delay.

Regardless of whether direct evidence about prejudice exists, or prejudice is inferred from the delay: Prejudice in this context [ie., prejudice to an accused’s right to a fair trial and to his or her right to liberty and security] is concerned with three interests of the accused that s. 11(

b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence [at para. 30]. [ 35 ] In this case, there is no direct evidence about prejudice to the Applicant, save for the Applicant’s reference to the existence of bail conditions which is referred to above.

The Applicant argues that there is also prejudice to his ability to cross-examine effectively in a matter where credibility is an important feature, however there is no evidence that in the instant case, credibility is any more of an important issue than in any other criminal allegation of misconduct. Regardless, as Godin instructs, some prejudice to the Applicant’s liberty, security of the person and right to make full answer and defence can be inferred from the existence of the delay in this case.

Summary and conclusion with respect to this issue [ 36 ] I find that the delay can be explained as follows:

a) From the 19 th of May, 2011, when the original information was sworn, until the Applicant’s first appearance on the 27 th of June, 2011, the delay was caused by the inherent time requirements of the matter given the available institutional resources for the matter.

b) From the 27 th of June, 2011 until the 19 th of September, 2011, the Applicant requested and obtained adjournments. It is the Applicant’s actions that explain this delay.

c) From the 19 th of September, 2011 until the 19 th of January, 2012, the delay was again caused by the inherent time requirements of the matter given the available institutional resources. The Applicant waived this delay.

d) From the 19 th of January, 2012, when the matter was first to be tried, until the 24 th of May, 2012, the delay was due to inclement weather forcing the first trial date to be abandoned and a second trial date to be set. This delay was not the fault of the Applicant or Respondent, and resulted from the institutional resources available in La Loche.

e) From the 24 th of May, 2012 until the 4 th of June, 2012, the delay resulted from the Court adjourning the matter until the co- accused’s matter could also be addressed. This delay would not have occurred but for the actions of the Respondent in proceeding on the replacement information.

f) From the 4 th of June, 2012 until the current trial date of the 14 th of March, 2013, the delay is explained both by the actions of the Respondent in proceeding on the replacement information, and by the co-accused’s counsel’s schedule. [ 37 ] Waiver by the Applicant, and the Applicant’s actions (paras. 36(

b) and (c)), explain about seven months of the 22 months of delay in this matter. Of the remaining 15 months, the inherent time requirements of the matter in light of the institutional resources available to try the matter explain about five months (paras. 36(

a) and (d)). The balance of about 10 months was caused by both the

actions of the Respondent in deciding to proceed on the replacement information rather than the original information when it did, and the

schedule of the co-accused’s counsel causing the delay in re-scheduling the trial (paras. 36(

e) and (f)). The issue is whether the overall delay is unreasonable such that the Applicant’s s. 11(

b) Charter right has been breached, considering all factors mentioned above. I find that this delay is not unreasonable, and the Applicant’s s. 11(

b) Charter right has not been breached. 3. If the answer to question 2 is “yes”, what is the appropriate remedy? [ 38 ] In light of the answer to question 2, no remedy is available to the Applicant. The replacement information remains scheduled for trial at La Loche on the 14 th of March, 2013. ______________________________ W.R. Campbell, J