Her Majesty the Queen - v. -, 2020 SKPC 41

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 41 Date: October 22, 2020 Information: 90142396 Location: Loon Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cyle Awasis Appearing: Mr. C. Poudrier For the Crown Mr. C. Gratton For the Accused CHARTER APPLICATION D ECISION M. S EGU , J INTRODUCTION [ 1 ] The accused stands charged on Information 90142396 with sexual assault alleged to have occurred on February 19, 2018. The Information was sworn the following day, February 20, 2018.

The accused was not located, and police sought a warrant for arrest on the same date. The warrant was executed some 328 days later.

[2] Shortly before the commencement of the accused’s third trial date on October 1, 2020, counsel for Mr. Awasis brought anapplication for an abridgement of service and a judicial stay of proceedings regarding an alleged breach of s.11(

b) of the Charter. Byagreement, the Charter application was heard on the date scheduled for trial, and a new trial date (if necessary) was selected forNovember 5, 2020.

Counsel for the accused explicitly waived any post-application delay from October 1 to November 5. [3] Since the Information was sworn, a total of 31 months and 12 days have elapsed. [4] The accused argues that the elapsed time presumptively violates the 18 month ceiling set out by the Supreme Court in R vJordan, 2016 SCC 27, 335 CCC (3d) 403 [Jordan]. [5] The Crown argues that there are significant periods of time that can be attributed either to the accused’s actions or theCOVID-19 global pandemic, and that once those periods of time are deducted, the remaining delay is within the prescribed timelines.

ISSUES [6] When is an individual “charged” for the purposes of calculating delay per Jordan? [7] Does the COVID-19 pandemic constitute an “exceptional circumstance” such that any period of court closures related to itwould necessarily be deducted from the overall calculation of time?

DEFENCE POSITION [8] Defence argues that the Jordan clock commences when the Information is sworn, relying on R v Pennington, 2020 SKQB198 [Pennington] which, in turn, relies on the reasoning contained in R v Pastuch, 2017 SKQB 211 and implicitly on R v Kalanj, (SCC), [1989] 1 SCR 1594 [Kalanj]. [9] Defence properly concedes that the delay attributable to COVID-19 constituted an exceptional circumstance, as courts acrossthe country faced unprecedented shutdowns in an effort to halt the spread of the virus. CROWN POSITION [10] The Crown argues that the initial period of time that Mr.

Awasis’ arrest warrant was outstanding is deductible defence delayattributable to the accused and “flows from the illegitimate action of evading arrest”. There was no evidentiary basis presented toestablish Mr. Awasis was actively evading arrest, or that he even knew he had been charged. [11] Regarding the COVID-19 pandemic, the Crown argues that it constituted an exceptional circumstance that ought to besubtracted from the total time to trial. EVIDENTIARY BASIS FOR APPLICATION [12] Mr. Awasis provided no evidence in regard to his application.

By agreement, the evidentiary basis for the applicationconsisted of the transcript of proceedings, the court endorsements, and the warrant for arrest. ANALYSIS

When is an individual “charged” for the purpose of calculating Jordan delay? [13] In the present case, the most significant period of time in calculating the net delay is the first 328 days. The accused arguesthat this issue is resolved in Pennington. The facts in Pennington are substantially different from the situation currently before the Court. [14] In Pennington, police arrested the accused and executed a search warrant at his home on August 24, 2016. The followingday, an Information was sworn against the accused.

After a consent committal at his preliminary hearing, an Indictment (“the FirstIndictment”) was filed on February 1, 2018. Mr. Pennington brought an application for a stay on the First Indictment based on delay. Before that application could be heard, the Crown filed a Direct Indictment. Although the First Indictment was stayed by the Court, theaccused eventually brought a subsequent application regarding delay as it related to the Direct Indictment. The Crown took the positionthat the Direct Indictment “reset the clock” for the purposes of any Jordan calculation.

The Court disagreed and found that thecalculation of delay began from the date of the swearing of the original Information, ultimately granting a stay of proceedings. [15] That the Court found the date of the swearing of the Information to be the starting point for calculation of delay isunsurprising, given that Mr. Pennington was arrested before the Information was sworn, a situation similar to the fact pattern in Jordan.

But should the same reasoning apply where the accused is arrested after the swearing of the Information? [16] Any analysis of this issue must consider the nature of the interest actually being protected by s.11(

b) of the Charter. In thisregard, I adopt the reasoning of Justice Kurke in R v J.K., 2020 ONSC 4936 at paragraphs 21-24 and 31: [21] R. v. Kalanj, (SCC), [1989] 1 S.C.R. 1594 (S.C.C.), involved accused persons who were arrested months inadvance of the laying of the criminal information, and were subject to personal trauma and public ignominy as a result of their arrests.Based on this, the trial judge found a breach of the s. 11(

b) right. The Court of Appeal overturned that finding and was upheld by theSupreme Court. For a majority of three judges in the Supreme Court, McIntyre J. held that a person was charged with an offence withinthe meaning of s. 11 of the Charter when "an information is sworn alleging an offence against him, or where a direct indictment is laidagainst him when no information is sworn" (at 1607).

The applicant relies heavily on this decision to underpin his argument that theclock in this case started running October 2, 2017. [22] However, it must be borne in mind that the focus of argument in Kalanj in the Supreme Court was whether a person could beconsidered "charged" at the time of arrest and prior to the swearing of an information. Given the facts of the case, McIntyre J. notsurprisingly relied on what must have been considered the most important detail in Carter, the swearing of the information.

McIntyre J.adapted to his own context the ruling of Lamer J. in Carter, which he construed as follows (at 1607): In Carter, Lamer J., with the agreement of seven judges who heard the case, clearly stated that an accused was charged upon theswearing of the information, and Carter supports the view that the pre-charge delay is not a factor for consideration under s. 11(b). [23] The explanation of the decision in Carter advanced by McIntyre J. in Kalanj was not, in fact, the complete position of the eight-judge majority in Carter, which had required both the laying of the information and the service of the summons pursuant to theinformation in order to render a person "charged." In my view, the ratio in Kalanj should be restricted to the case where arrestprecedes the laying of the criminal information, which also accounts for McIntyre J.'s ruling (at 1608) that "[p]re-information delaywill not be a factor" for the s. 11(

b) right. [24] Given the similarity of its factual background to that in Kalanj, the Jordan Court's holding, based on arrest preceding formal charge,that the assessment of delay begins from the date of the "charge," does not assist in defining what that means in a context where thecharging document precedes arrest…. [31] In sum, the law concerning delay requires the preparation of a charging document as a necessary, but not a sufficient,precondition for the s. 11(

b) clock to start running. It is also essential that the accused know that he or she has been charged,through the medium of arrest, or service of a summons, or some other means, with the result that the effects of being charged arefelt by the accused. Where, as here, there is no evidence that the applicant was aware that he was facing charges until his actual arrestclose to seven months after the laying of the criminal information, no legitimate purpose is served by starting the s. 11(

b) clock with theinformation. Indeed, to do so would simply encourage those persons who would seek to convert the s. 11(

b) shield into a sword toconceal themselves for as long as possible, to improve the odds of a remedy for breach of the s. 11(

b) right. [emphasis added]

[ 17 ] Further guidance on the point is provided by Justice Rothery in R v McCullough , 2017 SKQB 113 [ McCullough ], a case very similar in its facts to the present case. In McCullough , the accused was not arrested until 10 years after the Information was sworn against him. Counsel for the accused, relying on the Supreme Court of Canada’s decision in Kalanj , argued that Jordan delay calculation commenced from the swearing of the Information, and that the burden rested with the Crown to rebut the presumption of unreasonableness.

After reviewing the Kalanj decision, the Court held at para 11 that: The ratio in Jordan now makes it all the more crucial that the calculation of the delay must be calculated from the time the accused is arrested , if that date is some time after the swearing of the information or indictment. Because the presumptive ceiling shifts the burden to the Crown to rebut the presumption, it would be illogical to allocate the time period where the police cannot locate an accused against the Crown. The accused's rights under s. 11(

b) of the Charter are not impaired until the warrant has been executed against him. [emphasis added] [ 18 ] Of course, the decision in McCullough is binding on this Court. [ 19 ] In the present case, it is clear that the police applied for, and received, a public interest warrant pursuant to s. 512(1) of the Criminal Code for the arrest of Mr. Awasis. The warrant was granted the very next day after the alleged offence; specifically, on February 20, 2018.

A review of the original execution of the warrant, shows an appearance before a justice of the peace in Saskatoon on January 13, 2019. [ 20 ] In the circumstances, I find the starting point for the calculation of any delay pursuant to Jordan is the date of Mr. Awasis’ arrest, namely January 13, 2019, when he was arrested and released on a recognizance. CALCULATION OF DELAY PURSUANT TO JORDAN [ 21 ] R v Coulter , 2016 ONCA 704 , 340 CCC (3d) 429 provides a useful

summary of the process for calculating Jordan delay: [34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial ( Jordan , at para 47 ). [35] Subtract defence delay from the total delay, which results in the "Net Delay" ( Jordan , at para 66 ). [36] Compare the Net Delay to the presumptive ceiling ( Jordan , at para 66 ). [37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances ( Jordan , para 47 ).

If it cannot rebut the presumption, a stay will follow ( Jordan , para 47 ).

In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases ( Jordan , para 71 ). [38] Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached ( Jordan , para 75 ). [39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable ( Jordan , at para 80 ). [40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable ( Jordan , para 48 ). [ 22 ] In the present case, the total delay is from January 13, 2019 – October 1, 2020, a period of 627 days. [ 23 ] Is there delay attributable to defence?

From January 13, 2019, there were a number of docket appearances. There were no waivers of delay. The matter was first in court, post-arrest, on February 21, 2019. The period of time from then until September 19, 2019 ( 210 days), I would characterize as normal docket appearances: there were a total of nine appearances that covered Mr. Awasis’ application to Legal Aid, the matter being farmed out to private counsel due to conflict, and finalization of disclosure, specifically a DNA

report. Once disclosure was finalized, a trial date was selected on September 19, 2019 (January 23, 2020, “First Trial Date”). There was an earlier trial date of December 19, 2019 offered, but defence was not available and declined the date. The period from December 19, 2019 - January 23, 2020 is therefore attributable to defence delay (35 days). [ 24 ] On the first trial date, there was insufficient time to hear the trial due to docket and other trial matters. The accused was present for his trial, as were the Crown witnesses.

All parties were ready to proceed. [ 25 ] New trial dates of February 20 and March 19, 2020 were offered, but defence was not available, given the relatively short notice. Ultimately, a new trial date of May 28, 2020 was selected for trial (“Second Trial Date”). I am not prepared to attribute this period of time, January 23 – May 28, 2020, to defence delay, as the Court being unable to hear his case is not the fault of Mr. Awasis. [ 26 ] Accordingly, the net delay is 592 days.

This amount exceeds the presumptive ceiling set out in Jordan , and the burden shifts to the Crown to establish exceptional circumstances (either discrete events or through complexity of the case). [ 27 ] Defence has conceded, both in its written materials and in oral argument, that the COVID-19 pandemic constitutes an “exceptional circumstance” such that any period of court closures related to it would necessarily be deducted from the overall calculation of time.

As previously stated, courts across the country (and indeed around the world) were severely curtailed in their ability to hear trials and deal with matters generally. The situation was entirely without precedent. [ 28 ] The impact on this application is obvious: most trial courts in Saskatchewan started curtailing service around March 18 and judicial notice can be taken of the fact the last date in Loon Lake when individuals could personally appear in the courtroom was March 26, 2020. Needless to say, Mr.

Awasis’ second trial date could not proceed. [ 29 ] Counsel for the accused appeared by telephone on May 28 and the matter was adjourned to June 18. At that time the third trial date (October 1, 2020) was set, although no one knew whether the court point would be re-opened by then. Of note, September 3 was available for both Crown and defence but the Court suggested pushing the matter back further to increase the likelihood of the court point re-opening.

As it happened, the Loon Lake court point re-opened on August 6, 2020. [ 30 ] Accordingly, the period from May 28 to September 3, 2020 should be properly deducted as a “discrete event” attributable to the COVID-19 pandemic, a period of 99 days. Subtracting that amount from the net delay leaves a delay of 493 days or just over 16 months. This amount is within the prescribed Jordan timelines and accordingly the burden shifts back to the Applicant to establish that the delay is unreasonable.

The evidence led on this application does not support such a finding. [ 31 ] Accordingly, the application is dismissed, and the matter will proceed to trial on the selected date of November 5, 2020. __________________________ M. Segu, J