Her Majesty the Queen - v. -, 2020 SKPC 54

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 54 Date: December 10, 2020 Information: 24537389 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kelfert Watetch Appearing: MaryAnne Larson For the Crown Estelle Hjertaas For the Accused D ECISION F. D AUNT , J [ 1 ] Kelfert Watetch stands charged that he, on or about December 30, 2018, at Saskatchewan Penitentiary, did wound Dakota Asapace, thereby committing an aggravated assault, contrary to section 268(2) of the Criminal Code .

He is further charged that he did, in committing an assault on Dakota Asapace, use a weapon, to wit: a homemade stabbing weapon, contrary to

section 267 (

a) of the Criminal Code . He has elected to be tried by Provincial Court and entered not guilty pleas. He now applies to this Court for a stay of proceedings pursuant to section 24(1) of the Charter of Rights and Freedoms [ Charter ]. He alleges his

section 11(

a) right to be informed of the offence without unreasonable delay has been violated. He further alleges that his continued prosecution is an abuse of the Court’s process, in violation of

section 7 of the Charter and of the common law. INTRODUCTION

[ 2 ] In June of 2018, Kelfert Watetch, an inmate at the Saskatchewan Penitentiary, was charged with second degree murder and other offences. [ 3 ] On December 30, 2018, Mr. Watetch was involved in an incident resulting in injuries to Dakota Asapace, another inmate. In early 2019, through his lawyer, he was negotiating a plea agreement with the Crown regarding the murder charge. Concerned he would be charged in the Asapace incident, he instructed his lawyer to inquire about any pending charges before finalizing the plea resolution. His lawyer, Mr. Pfefferle, made inquiries with the Crown, then informed Mr.

Watetch no charges were pending. Satisfied he was not in legal jeopardy for the more recent incident, Mr. Watetch agreed to plead guilty to manslaughter and was sentenced in June of 2019 to 10 years in prison. [ 4 ] About a month later, Constable Schmidt of the RCMP swore an Information charging Mr. Watetch and two others with aggravated assault and assault with a weapon for the Dakota Asapace incident. Mr. Watetch first learned of these new charges when they were read to him in court on August 14, 2019.

He submits that charging him after his guilty plea and sentencing amounts to an abuse of process; he had a right to be informed of the full extent of his legal jeopardy before waiving his right to a trial on the murder charge. He thinks he was “gated” because the prison authorities or police were displeased with his plea bargain. He also submits his

section 11(

a) right to be informed of the charges without unreasonable delay was violated. [ 5 ] Two witnesses testified on the voir dire : Constable Schmidt and the accused. FACTS [ 6 ] In December of 2016, Mr. Watetch was an inmate at Saskatchewan Penitentiary in Prince Albert when a major riot occurred, resulting in violence, property damage, and a death. A year and a half later, in June of 2018, Mr. Watetch and others were charged with second degree murder and attempted murder arising out of that incident.

Both the riot and the later charges garnered significant media attention. [ 7 ] While those charges wended their way through the courts, on December 30, 2018, Mr. Watetch was involved in an incident with Dakota Asapace, ultimately resulting in the charges that are the subject of this application. [ 8 ] Saskatchewan Penitentiary has internal disciplinary mechanisms. They often handle inmate infractions through institutional charges, administrative segregation, or other forms of discipline.

Sometimes they refer the matter to the RCMP in order to lay a “street charge,” or criminal prosecution. [ 9 ] In December of 2018, Constable Schmidt had recently joined the six-person RCMP unit responsible for charges arising out of the Saskatchewan Penitentiary. Offences in the institution are investigated by Security Intelligence Officers [SIO], employees of Corrections Canada working at the penitentiary. They collect intelligence within the institution regarding assaults, drug investigations, and so on.

If they want an inmate charged criminally, these officers provide their information to the RCMP, who then may lay charges or investigate further. When he receives an SIO package from the penitentiary, Constable Schmidt generally reviews the report, summarizes it in his own report, reviews video footage, and obtains medical records if relevant. He then decides either to lay a charge or to conduct further investigation. [ 10 ] The day after the December 30, 2018 incident, Constable Schmidt was told – presumably by penitentiary staff – that Dakota Asapace, the alleged victim, was in hospital.

Constable Schmidt attended to obtain a statement, but Mr. Asapace refused to cooperate. Constable Schmidt then waited for the SIO package from staff at the penitentiary. [ 11 ] In this case, SIO Gillian Welton prepared the package, which included video evidence, written reports from guards, and other information, including the names of the three alleged perpetrators of the assault. Constable Schmidt received the package on January 3, 2019 and began reviewing it on January 8, 2019.

He noticed it was missing a document called the Officer Recognition Report, which ensures someone familiar with the inmates in question can recognize them on the video footage and positively identify them in a manner admissible in court. Although the package included information identifying the alleged perpetrators, Constable Schmidt believed he needed the formal Officer Recognition Report before swearing an Information and formally laying a charge. That same day, January 8, he sent an email to Gillian Welton requesting the missing report.

[ 12 ] Constable Schmidt did not search the Canadian Police Information Centre [CPIC] database for the named inmates. This check would have revealed the inmate’s criminal record, outstanding warrants and charges before the courts. [ 13 ] On January 13, 2019, Constable Schmidt became involved in an investigation into a drive-by shooting in La Ronge. He was the lead investigator in what became a full-time project until mid-June and continued to consume a good deal of his time into August of 2019. The other members of his small unit were also involved in that matter, so he was not able to delegate Mr.

Watetch’s file to anyone else. The La Ronge investigation took priority over investigations arising from the penitentiary because the suspects were at large and posed a danger to the community. Even if he could have delegated the Asapace investigation, he said, nothing could be done on the file until the Officer Recognition Report was received. [ 14 ] Meanwhile, Mr. Watetch’s murder and attempted murder charges were proceeding through the courts. His lawyer, Mr. Pfefferle, was negotiating with the Crown regarding resolution of those charges with a guilty plea to manslaughter.

Those negotiations included a promise that the Crown would not pursue a Dangerous Offender application. Mr. Watetch worried that he may be criminally charged in the Dakota Asapace incident; a manslaughter conviction would negatively affect his chances were the Crown to pursue Dangerous Offender proceedings on new charges. Mr. Watetch wanted to ensure no charges were pending before relinquishing his right to a trial on the very serious riot-related charges. He instructed his lawyer at the time, Mr. Pfefferle, to make inquiries. Mr. Pfefferle advised the Crown had assured him there were no pending charges. Mr.

Watetch agreed to plead guilty to manslaughter, understanding he had not been and would not be charged criminally in the Dakota Asapace incident. [ 15 ] On March 15, 2019, Mr. Pfefferle formally advised the Court of Queen’s Bench the murder charge was resolved and would not be proceeding to trial. [ 16 ] On May 2, 2019, Mr.

Watetch entered a guilty plea to the offence of manslaughter in relation to the riot at the Saskatchewan Penitentiary. [ 17 ] On May 27, 2019, Constable Schmidt found time to revisit the Dakota Asapace investigation, but he still had not received the Officer Recognition Report necessary to lay a charge. In a follow-up email to SIO Gillian Welton, he requested it again. [ 18 ] On June 11, 2019, Mr. Watetch was sentenced to 10 years in prison on the manslaughter charge related to the riot. Constable Schmidt says he was unaware of Mr.

Watetch’s involvement in the riot, and unaware of the charges proceeding through the courts, despite the media attention. [ 19 ] On June 27, 2019, Constable Schmidt at last received the Officer Recognition Report. Ms. Welton did not testify, so no explanation for this five and a half-month delay was offered. On receipt of the Officer Recognition Report, Constable Schmidt believed he had reasonable grounds to swear an Information. He testified he could not lay a charge before that; he needed to ensure the perpetrators were accurately identified.

Because it was an uncomplicated, straightforward investigation, Constable Schmidt did not consider consulting with Crown prosecutors before charging the three accused. [ 20 ] Constable Schmidt drafted an Information, which he swore on July 22, 2019. This Information jointly charged three people with aggravated assault and assault with a weapon. The Information contains two incorrectly spelled names. Mr. Kransky’s name was corrected in court on August 14, 2019. Mr.

Watetch’s name was not amended until July 8, 2020. [ 21 ] Constable Schmidt did not seek a warrant or a summons from the justice when he swore the Information, as he would when charging a non-inmate. Not seeking process is customary when the RCMP charge inmates of Saskatchewan Penitentiary. Instead of seeking process, the RCMP provide a disclosure package to the Crown Prosecutor’s office, which obtains a production order to produce the inmate to court. The inmate learns about the specific charges at the first court appearance.

Constable Schmidt’s personal practice is to take a copy of the Information with him when he takes the inmate’s fingerprints. He is not always the person who takes the fingerprints, however. If the inmate is in another institution, Constable Schmidt provides a copy of the Information to the person who will take their fingerprints. Because he does not arrest the inmate on the charge, he does not read them their rights and warnings unless he plans to interview them for a warned statement. [ 22 ] Mr. Watetch was first produced for court on August 14, 2019, and his charges were read to him.

This was his first formal notice of the charges against him, eight and a half months after the incident, two months after his manslaughter sentencing, and 23 days

after the Information was sworn. [ 23 ] In September of 2020, two co-accused with Mr. Watetch in the 2016 riot were acquitted of murder and attempted murder. [ 24 ] Mr. Watetch says he has been treated unfairly. He gave up his right to a trial on the murder charge on the understanding that he would not be charged in this incident. Had he known the full extent of his legal jeopardy, his course of action would have been different. The RCMP could have laid charges in January but waited until he had given up his right to a trial and the appeal period had expired. [ 25 ] I find as a fact that no one promised Mr.

Watetch he would not be charged in the Dakota Asapace incident if he pled guilty to manslaughter in the riot incident. However, when told charges were not pending, he understood that to mean he would not be charged in the incident and made decisions that affected his liberty based on that misunderstanding. [ 26 ] I also find as a fact that, although no Information was laid until July 22, 2019, charges against Mr. Watetch were very much “pending” from the time the Security Intelligence Officer referred the matter to the RCMP on January 3, 2019.

There is only one reason for the institution to refer an investigation to the police, and that is to charge an inmate criminally with an offence. From the moment he received the referral, Constable Schmidt knew he was going to charge the inmates involved. The decision he faced was whether to lay a charge immediately, or to wait for the Officer Recognition Report. Closing the case without charges was not an option. [ 27 ] I also find as a fact that there was no improper motive or nefarious purpose on the part of the RCMP or the Crown Prosecutors involved. What the Crown told Mr.

Watetch’s lawyer, and what his lawyer told him, was technically true. At the relevant time, there were no other outstanding charges against Mr. Watetch. Until an Information is sworn and a court date obtained, a check on the system would reveal no outstanding charges, especially if no arrest warrant exists. Nobody lied to or deliberately misled Mr. Watetch. Rather, this was a case of the right hand not knowing what the left was doing. Further inquiry might reasonably have been made to the SIO to see if Mr. Watetch had been referred to the RCMP.

Further inquiry to the RCMP unit responsible for the penitentiary would have revealed that Mr. Watetch did indeed have “pending” charges not yet formally laid. [ 28 ] On the other hand, no evidence before this Court explains the SIO’s over five-month delay in responding to Constable Schmidt’s request for the Officer Recognition Report. Penitentiary staff certainly would be aware of the riot and the inmates charged. It was a major event.

Although no direct evidence points to an improper motive or nefarious purpose from the investigators in the penitentiary, neither is any explanation offered for their neglect in this matter. But for the delay in providing the Officer Recognition Report, Mr. Watetch could have been alerted to his increased legal jeopardy in time to re-evaluate his options on the murder charge. [ 29 ] Defence concedes that the pre-charge delay in this case did not affect trial fairness on the charges currently before the court. No evidence was lost, and Mr. Watetch’s right to make full answer and defence has not been impaired.

However, Mr. Watetch has been prejudiced in a broader sense by the delay in laying a charge in this case. He took steps to ascertain his full legal jeopardy before surrendering his right to a trial and making decisions affecting his liberty. The prejudice is a direct result of the way the investigation and charging process unfolded in this case. ISSUES [ 30 ] The issues are: 1. Did the conduct of the Crown – including the Security Intelligence Officer, the RCMP, and the Crown Prosecutor’s office, all agents of the state – amount to an abuse of process? 2. Was Mr. Watetch’s

section 11(

a) right to be informed of the offence without unreasonable delay violated? 3. If so, is a stay of proceedings the appropriate remedy?

THE LAW 1. Abuse of Process [31]

Section 7 of the Charter states “Everyone has the right to life, liberty and security of the person and the right not to bedeprived thereof except in accordance with the principles of fundamental justice.” At common law, trial judges enjoyed a discretion tostay proceedings where compelling an accused to stand trial would violate those principles of fundamental justice which underlie thecommunity sense of fair play and decency. A stay would be granted only in the clearest of cases. (R v Jewitt, (SCC),[1985] 2 SCR 128) [32] When someone is charged with a criminal offence, his right to liberty is engaged.

He cannot be deprived of liberty exceptthrough due process of law. Often his security interests are also engaged; criminal charges can and do cause psychological distress. Anabuse of process is not in accordance with the principles of fundamental justice and thus violates

section 7. [33] In R v Babos, 2014 SCC 16, 308 CCC (3d) 445 [Babos], the Supreme Court of Canada recently summarized the doctrine ofabuse of process. A stay of proceedings for an abuse of process will only be warranted in the clearest of cases. Two types of stateconduct may warrant a stay. The main category is conduct that compromises the fairness of an accused’s trial. The second or “residual”category is conduct that does not threaten trial fairness but risks undermining the integrity of the judicial process.

As Justice L’Heureux-Dube commented in R v O’Connor, (SCC), [1995] 4 SCR 411 at para 73 [O’Connor]: This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in theCharter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted insuch a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thusundermines the integrity of the judicial process. [34] The test for determining whether a stay of proceedings is warranted is the same for both categories and consists of threerequirements: 1.

There must be prejudice to the accused’s right to a fair trial or to 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. 3.

Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the Court must balance the interests in favourof granting a stay against the interest that society has in having a final decision on the mertis. [35] When the residual category is invoked, the first stage of the test is met when it is established that the state has engaged inconduct that is offensive to societal notions of fair play and decency, and that proceeding with a trial in the face of that conduct would beharmful to the integrity of the justice system.

At the second stage of the test, the focus is on whether an alternate remedy, short of a stayof proceedings, will adequately dissociate the justice system from the impugned state conduct going forward. Finally, the Court mustdecide whether staying the proceedings or having a trial despite the impugned conduct better protects the integrity of the justice system. This inquiry necessarily demands balancing.

The Court must consider the nature and seriousness of the impugned conduct, whether theconduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges, and the interests of societyin having the case decided on the merits (Babos). [36] Where pre-charge delay is the source of the alleged abuse of process, the cases are clear that delay alone is not enough toshow an abuse of process.

It is not the length of the delay, but the effect of the delay on the Charter-protected interests of the accused orthe integrity of the justice system that may result in an abuse of process (R v Joudrey, 2010 NSSC 230 [Joudrey]). [37] The accused does not need to establish an improper motive or bad faith. Rather, it is the effect of Crown actions on theintegrity of the justice system that is important. (Joudrey, R v Keyowski, (SCC), [1988] 1 SCR 657, R v JSG, SDB and

AK, 2020 SKQB 164 at para 67, 391 CCC (3d) 404) [38] Hoegg J.A., whose dissent in R v Hunt, 2016 NLCA 61 [Hunt] was adopted on appeal to the Supreme Court of Canada (2017SCC 25), states at paragraphs 94 and 95: I agree with the Respondents that oppression does not have to involve Crown “malfeasance or misconduct”. However, I am of the viewthat there must be some Crown conduct which can be fairly described as offensive, even if not made in bad faith or for an ulteriorpurpose, in order to constitute oppression so as to support a determination of abuse of process.

Such conduct must rest on some positive action on the part of the oppressor and be rooted in the facts and circumstances of the Crown’sconduct of the case. I am also of the view that the oppressive action must be apparent so as to permit an objective evaluation of it, andthat it involve an element of injustice or unfairness, or at least result in injustice or unfairness to an accused. [39] Many pre-charge delay cases deal with complex and resource-consuming investigations.

However, it is not the role of thereviewing judge to evaluate the operation for efficiency, or to second-guess the conduct of the investigation (Hunt). 2. Charter

Section 11(a) [40]

Section 11(

a) of the Charter guarantees individuals charged with an offence the right “to be informed without unreasonabledelay of the specific offence.” Generally speaking, the clock does not start ticking until an Information is sworn, although there areexceptions to that proposition (See e.g. R v Vany, 2000 SKQB 483, 198 Sask R 288). The leading case on delay in this context is R vDelaronde, (SCC), [1997] 1 SCR 213, which affirms R c Delaronde, (Que CA) but clarifies that asection 24(1) remedy is not limited to prejudice resulting from the breach of a right to a fair trial.

As Lamer C.J. states, “Having chargespending against one can affect decisions one must make in one’s life that are unrelated to the preparation of a defence.” [41] Apart from that addendum, the Supreme Court adopted the Quebec Court of Appeal dictum. Drawing heavily on pre-Jordan[1] jurisprudence on

section 11(

b) delay, the Court held that, in considering whether there has been unreasonable delay ininforming the accused of the specific offence, the Court should consider (1) the length of the delay; (2) the waiver of time periods; (3)the reasons for the delay; and (4) prejudice to the accused. The length of delay is calculated from the time the Information is sworn tothe time that the person is informed of the offence. Proper informing of the accused includes the substance of the offence and the detailsof the circumstances of its commission.

The accused may waive time periods if he knowingly acts to prevent the authorities frominforming him of the offence with which he is charged. The reasons for the delay include the inherent time requirements of the case, theactions of the accused, the actions of the Crown and limits on institutional resources. The inherent time requirements should berestrictively defined to include identifying and locating the accused. The actions of the accused include all actions which may haveinfluenced the delay. Limits on institutional resources relate to the police force involved and the material resources available to them.

ANALYSIS 1. Abuse of Process [42] The applicant concedes that his right to a fair trial on the charges currently before the court has not been compromised by thepre-charge delay. Rather, he submits this case falls in the residual category of abuse of process. He asserts that he has a right to knowthe full extent of his legal jeopardy before making decisions that impact his liberty, in this case, his decision to waive his right to a trialon the murder charge. [43] A review of the case law reveals no case directly on point. The case is somewhat analogous to those where the Crown hasrepudiated a plea agreement.

Whenever the Crown reneges on a bargain, the door to an abuse of process inquiry is opened. In R vNixon, 2011 SCC 34, [2011] 2 SCR 566, after a preliminary inquiry on serious driving offences resulting in death, Crown and defenceagreed to a plea to a provincial traffic offence and a fine. More senior counsel reviewed the deal and believed it was contrary to theinterests of justice and based on a flawed assessment of the strength of the Crown’s case. The offer was withdrawn before any pleaswere entered in court. Prosecutorial discretion is reviewable only for abuse of process.

The Court found the initial burden was met bythe mere fact of a repudiated plea agreement. However, under these circumstances, that repudiation was justified, and the Crownconduct was found not to be oppressive. The accused suffered no prejudice and was restored to the same position she was in after thepreliminary inquiry.

[44] In Mr. Watetch’s case, the prosecution had not promised he would not be charged in the Dakota Asapace incident if he pledguilty in the riot incident. There was no quid pro quo. As a result, this is not a case of a repudiated plea agreement, although it sharessome elements. Mr. Watetch specifically inquired about “pending” charges and was told there were none. He understood this to meanhe was not charged in the later incident. Certainly, by then, enough time had passed that he could infer that if a charge was going to belaid, it would have been, and he would not be charged in the future.

While not a plea bargain case, this case is one of “the panoply ofdiverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness orvexatiousness to such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicialprocess” (O’Connor). The pre-charge delay in this case, though not as lengthy as some, resulted in prejudice to the accused, therebythreatening the “integrity” of the justice system, in the sense of integral parts of the system working together to produce a just result.

Inthis case, the unexplained failure of the SIO to provide the document Constable Schmidt requested in a timely manner resulted inprocedural unfairness to the accused. This was not “harms that are brought about by third parties who are not in any sense acting asagents of the state” as in Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 at para 59, [2000] 1 SCR 59. TheSecurity Intelligence Officers at the penitentiary were acting as agents of the state in this matter. They investigated the incident andforwarded the fruits of that investigation to the RCMP.

The purpose of referring the matter to the RCMP was to pursue criminalcharges. That failure was exacerbated by the low priority given to completing this simple and straightforward investigation by theRCMP. Compounding these events was the failure by the Crown to inquire from the RCMP or the penitentiary as to whether anyinternal matters had been referred to the RCMP for the purpose of laying criminal charges.

This chain of events led to an unfairnesswhich tarnishes the integrity of the justice system. [45] The accused ceded his right to a trial in the face of what he interpreted as an implicit promise that he would not be chargedcriminally in the incident before the court. After the appeal period in the earlier case had expired, he was charged nonetheless,increasing his legal jeopardy and severely weakening his bargaining position.

These actions were not in any way driven by the allegedvictim of the offence, who is not involved in this process, but by state authorities. [46] This case is somewhat akin to R v Demers (1989), (QC CA), 49 CCC (3d) 52 (Que CA), in which policearrested the accused for robbery, but promised not to charge him if he aided in a murder investigation. He agreed, but during thatinvestigation, Mr. Demers was himself charged in the murder. He was eventually acquitted of murder, then police charged him with theoriginal robbery.

Even though the two charges were unrelated, the Quebec Court of Appeal found that to be an abuse of process anddirected a stay of proceedings. [47] Similarly, I find there has been a breach of Mr. Watetch’s

section 7 right not to be deprived of liberty and security of theperson except in accordance with the principles of fundamental justice. The appropriate remedy will be discussed after the

section 11(a)issue.

Section 11(a) [48] According to

section 11(

a) of the Charter, any person charged with an offence has the right to be informed withoutunreasonable delay of the specific offence. A person is charged with a criminal offence when the Information is sworn (R v Kalanj, (SCC), [1989] 1 SCR 1594). Here, although his prosecution was almost an absolute certainty when the SIO sent thepackage to the RCMP on January 3, 2019, Mr. Watetch was not formally charged until July 22, 2019. He was informed of the specificcharges when they were read to him in court on August 14, 2019, seven and a half months after the incident, but only 23 days after theInformation was laid.

Mr. Watetch did not waive delay, nor did his actions cause any delay. The sole reason for the 23-day delay wasConstable Schmidt’s failure to seek process from the issuing justice when he swore the Information. Identifying and locating theaccused was not difficult or time-consuming. He was in federal custody. Although the delay was not lengthy, it resulted in prejudice toMr. Watetch, especially on top of the pre-charge delay. He had no opportunity to consult with counsel before his first court appearance,and his window of opportunity to appeal the manslaughter conviction expired.

Although the delay was not lengthy, it was unreasonable. [49] It is RCMP practice not to seek process when swearing an Information accusing an inmate of a criminal offence. Thispractice seems to be based on a misunderstanding that, because they are already in prison, inmates do not enjoy the same proceduralprotections as non-inmates charged with offences. Normally, when an Information is sworn, the Informant asks for process to beconfirmed, or, if there is none, for a summons or a warrant for arrest. A summons document contains the offence charged.

Whenserved, the accused is notified of the specific charge and the date his or her presence is required in court. He or she can then consult withcounsel or get other advice before the first appearance. Even though an inmate may already be in custody, a summons is usually themost appropriate way to compel him to court, unless his release is imminent, and bail becomes an issue. Inmates live at the penitentiary. Penitentiary Court is conducted regularly by judges of the Prince Albert Provincial Court, formerly as a circuit point, now by video fromboth the Maximum and the Medium Security units.

Service of a summons would notify the prisoner of his charges and compel him toattend court at the institution on a specific date. [50] Similarly, an arrest warrant contains the offence charged and commands a peace officer “to immediately arrest the accusedand to bring them before a justice to be dealt with according to law” (Criminal Code Form 7).

Section 29 of the Criminal Code requires

that, when an arrest warrant is executed, the accused must be informed of the reason for the arrest and given a copy of the warrant if requested. He or she must then be taken before a justice within 24 hours. These procedural safeguards in the Criminal Code ensure that an accused is informed without unreasonable delay of the charge. [ 51 ] The current practice ignores these requirements in the Criminal Code , resulting in the routine violation of

section 11(

a) of the Charter . Forwarding the file to the local Crown to obtain a production order, while a necessary step, does not replace the procedural safeguards in the Criminal Code and the Charter . A production order is not served on an accused person, but on the institution confining him. It does not compel the accused to attend court. Rather, it compels the institution to produce him. It does not inform the accused of the charges against him. He is not given timely notice in such a way that he may retain counsel to assist him at his court appearance.

Penitentiary staff tells him he has court and directs him to sit in a chair in front of a video screen. In my experience, all too frequently an accused in Penitentiary Court hears his charges for the first time from the judge who reads them when he appears in court without notice and without counsel. [ 52 ] In this case, although the delay was not lengthy, I find it was unreasonable and an example of the systemic violation of

section 11(a). 3. Remedy [ 53 ] Having found violations of both

section 7 and

section 11(

a) of the Charter , the appropriate remedy must now be determined. [ 54 ] Regarding

section 11(a), although I have found the delay unreasonable based on the systemic nature of the breach, in Mr. Watetch’s case, the 23-day delay from charge to being informed did not result in prejudice to his right to a fair trial on the charges before the court, nor did it impair his right to make full answer and defence. On the other hand, the Court must not be seen to condone this kind of routine breach of Charter rights. [ 55 ] For the breach of

section 7, a stay of proceedings may be granted only if the prejudice will be manifested, perpetuated, or aggravated through the conduct of the trial or by its outcome. As Crown counsel pointed out, the December 2016 riot and the Dakota Asapace assault were two separate incidents, two years apart, justifying separate prosecutions and separate consequences. No evidence was led in this case to show systemic pre-charge delay in the penitentiary setting. The conduct giving rise to the breach was a matter of miscommunication, not malevolence. On the other hand, Mr.

Watetch’s position cannot be restored to its pre-breach state. He has been sentenced on the manslaughter charge and the appeal period has long expired. [ 56 ] Before a stay of proceedings may be granted, the Court must consider whether an alternative remedy can adequately redress the prejudice. Mr. Watetch submits no alternate remedy will suffice. Although, in her written brief, Crown counsel suggested expunging the prior guilty plea, in oral argument she seemed to acknowledge that course of action is not feasible. Instead, she suggests a reduction in sentence as a remedy, should a breach be found.

While that might sometimes be appropriate, in this case such a remedy would be premature. Mr. Watetch has not been found guilty of these offences. He enjoys the presumption of innocence. To grant a remedy of a reduced sentence, the Court would need to presuppose his guilt. [ 57 ] Another alternative is the exclusion of the recognition evidence, as it is the delay in furnishing this evidence that ultimately caused the prejudice to Mr. Watetch. Indeed, on the facts of this case, that evidence would be excluded under a section 24(2) analysis. It was evidence obtained in a manner that infringed or denied Mr.

Watetch’s rights and freedoms, and admission of the evidence would bring the administration of justice into disrepute. Both the

section 7 and 11(

a) breaches were serious, and seriously impacted Mr. Watetch’s Charter -protected interests. Finding society’s interest in a trial on the merits outweighs those factors is difficult when the case was given such a low priority by the correctional system and the police. In this case, the alleged victim is not interested in the proceedings. He did not give a statement to police and did not request that Mr. Watetch be charged. The prosecution is driven by state actors only. The SIO took five and a half months to respond to a simple request for information from the RCMP.

The RCMP gave this case the lowest priority between January and July 2019. Under these circumstances, when none of the players has seemed particularly diligent in moving the matter forward, it is difficult to find that society’s interest in a trial on the merits outweighs the accused’s interest – and society’s interest – in having a justice system committed to fair dealing. The routine violation of

section 11(

a) rights when dealing with penitentiary inmates tips the balance in favour of excluding the evidence. [ 58 ] A stay of proceedings is granted only in the clearest of cases. I find that, short of a stay, excluding the recognition evidence in this case adequately remedies the breaches. Having found an alternate remedy, I need not engage in the balancing exercise where uncertainty remains in granting a stay of proceedings.

CONCLUSION [ 59 ] I find the prosecution of Kelfert Watetch on the Information before the court constitutes an abuse of the Court’s process and violates

section 7 of the Charter . Further, I find his right to be informed of the specific offence pursuant to

section 11(

a) of the Charter has been violated. I find the appropriate remedy is to exclude all recognition evidence from the trial on Information 24537389. Dated this 10th day of December, A.D., 2020, at the City of Prince Albert, in the Province of Saskatchewan. _________________________ F. Daunt, J