Her Majesty the Queen - v. -, 2019 SKPC 24

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 24 Date: June 7, 2019 Information: 90162911 Location: Swift Current _____________________________________________________________________________ Between: Her Majesty the Queen - and - James Robert Needham Appearing: Curtis Wiebe For the Crown Lisa Trach For the Accused DECISION K. BAZIN , J [ 1 ] This matter is an application by the defendant pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms , alleging a breach of Mr. Needham’s right to be tried within a reasonable time under

section 11(

b) of the Charter , often referred to as a Jordan application. On April 4, 2019, the defendant’s application was orally dismissed and I advised that written reasons would follow. These are those reasons. FACTS

[ 2 ] The Information in this matter was sworn on May 15, 2018. The trial was set by mutual agreement of the parties for January 21, 2019. There were earlier trial dates available, but the Court left it up to the parties to arrange a date. The first trial date was therefore set to proceed 251 days after the charge was laid. The defence agrees that this time frame did not infringe on Mr. Needham’s right to a timely trial. [ 3 ] The trial set for January 21 was adjourned to June 7, 2019, which is 387 days, or approximately 12.9 months, from the date the Information was sworn.

There were a number of reasons for the adjournment. [ 4 ] On June 14, 2018 the Crown gave verbal notice to the defence of the Crown’s intention to call an expert. This was in fact the very first statement made by the Crown in this entire matter after electing to proceed by

summary procedure. The Crown stated the only issue in setting the trial date was that they had to have an expert report in regard to the matter. From the first appearance on June 14, 2018, the defence was aware that the Crown was bringing an expert witness to testify: the Crown stated that there was an issue regarding the time the breath samples were taken and, as such, they needed an expert to testify. This is an impaired/over .08 case and it is typical that when the Crown calls an expert because of the time of taking the breath samples, one of the topics will be a “read back” analysis. There may also be other issues that arise when the expert gives their final report and evidence. [ 5 ]

Section 657.3(3) (

a) of the Criminal Code outlines that a notice for the calling of expert testimony does not have to be in writing: 657.3

(3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses, (

a) a party who intends to call a person as an expert witness shall, at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party or parties of his or her intention to do so, accompanied by (

i) the name of the proposed witness, (ii) a description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about that area of expertise, and (iii) a statement of the qualifications of the proposed witness as an expert; [ 6 ] The notice can be given verbally by the Crown, as happened here.

The problem with the Crown’s verbal notice given on the first court appearance, being June 14, 2018, is that it did not fully comply with the notice provisions: the name of the proposed witness was not provided, nor did the Crown provide a statement of the qualifications of the proposed expert. To a degree the area of expertise could have been stated in more detail, although the Crown said it was because of the timing of the readings. [ 7 ] Therefore, the Crown’s notice, given verbally in court, of its intention to call an expert is insufficient. Thus,

section 657.3(4) comes into play: 657.3

(4) If a party calls a person as an expert witness without complying with subsection (3), the court shall, at the request of any other party, (

a) grant an adjournment of the proceedings to the party who requests it to allow him or her to prepare for cross-examination of the expert witness; [ 8 ] Because the Crown did not fully comply with

section 357.3(3)(a), this gives the defence an automatic right to an adjournment. [ 9 ] In addition to the notice under

section 657.3(3) (a), the second stage for calling an expert is under

section 657.3(3) (b): (

b) in addition to complying with paragraph (a), a prosecutor who intends to call a person as an expert witness shall, within a reasonable period before trial, provide to the other party or parties (

i) a copy of the report, if any, prepared by the proposed witness for the case, and

(ii) if no report is prepared, a

summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based; [ 10 ] The Crown served their expert notice on the defence on December 28, 2018, a date which the court house was open, not closed as alleged by the defence. The Crown therefore served its notice 23 days before the original trial date, not the 30 days which is the minimum required by s. 657.3(3) (a). From the transcripts and the representations in argument, I understand and find that the expert’s report, which had been prepared and given to the police on July 20, 2018, was sent to the defence on December 28, 2018 along with the notice. The Crown therefore complied with

section 657.3(3) (b), by providing the report within a reasonable time before trial, considering as a guide the time frame of 30 days for the

section 657.3(3) (

a) notice. [ 11 ] The defence in argument stated that the notice was served when defence counsel was away on holidays, and that the Crown would have known this because of counsel’s earlier representations when setting the trial date. The file indicates that the Crown setting the trial and the Crown assigned the file for trial were not the same person. There is confusion as to when defence counsel was back to work. Defence counsel had advised the Court when setting the trial that they were out of the country for all of December and were therefore unavailable for trials.

On January 16, 2019, defence counsel advised the Court that they were back and this was their first day at work. Defence counsel filed with the Court the defence’s Charter Notice on January 7, 2019. The Charter Notice indicates that it was signed by defence counsel on January 7, 2019, in Edmonton, Alberta, indicating that they were attending to the file on that date.

It may well be that defence counsel was away from the office for a number of periods. [ 12 ] As it relates to the issue of counsel being away from their practice, the Criminal Code does not state that the time frames set out are based on lawyers’ personal schedules. Both the Crown and the defence have a professional obligation to manage their files prudently.

They will be aware that they have obligations as to filing of documents and fulfilling their undertakings irrespective of their personal schedules. [ 13 ] The Crown candidly admitted that a number of errors had occurred resulting in the late sending of the written notice of the expert witness. The Crown erred by not properly diarizing their file to ensure that it was looked at in time to ensure that all the information required under

section 657.3(3)(

a) was given. The Crown had relied on being notified by the arrival of the requested report when it came in. Unfortunately, and unknown to the Crown, the agency forwarding the report had already had a request for the expert report directly from the RCMP and consequently sent out the information and report directly to the RCMP. The agency disregarded the Crown’s request and never notified the Crown that they had sent the expert report to the RCMP.

The RCMP did not advise the Crown they had received the report. [ 14 ] The Crown learned that they had not sent out the notice and report, and that they did not even have the report in their possession, on December 24, 2018. On December 27, 2018, the first day back to work after Boxing Day, Crown counsel learned what had happened, obtained the information required, and sent it to the defence on December 28, 2018. [ 15 ] When this matter was set down for trial, the Court discussed disclosure with the Crown and defence.

The Court instructed the defence that, if there was an outstanding disclosure issue, defence should have the matter brought back to court to discuss and that the defence did not have to make a formal disclosure application. The defence agreed to do this. The Crown pointed out that the expert’s report was still coming and everyone knew this and this was part of the disclosure discussion. The defence did not bring the matter back to court 30 days before the trial to raise the issue of disclosure not received, being the expected expert report.

There is no indication that the defence did anything whatsoever to enquire about the report that everyone knew was to be forthcoming and had to be disclosed to the defence. [ 16 ] The Court’s direction to the Crown and defence on bringing matters back to court if there was an issue was a proactive measure to ensure that all parties were ready to proceed to trial on the set trial dates.

The instructions and agreement by the parties was designed to avoid the parties raising matters at the commencement of trials or close to trial dates when all the witnesses and the defence have made arrangements to attend for the trial. It was also designed to ensure that limited court time was not wasted. A trial date that is not going to proceed in the Swift Current Judicial Centre is not likely to be filled with another matter.

If the defence, realizing that they did not have the Crown’s report disclosed, had brought the matter back as instructed more than 30 days before the trial, being before December 21, 2018, the issue of the missing report, in all likelihood, would have been resolved. [ 17 ] In an effort to ensure that the direction by the Court and agreement by the parties to bring matters back to court was simplified, so that either party did not have to go through the work of filing a formal application, the parties were advised that they simply had to have the matter put on the docket to be spoken to, as most matters could be resolved without a formal application.

[ 18 ] The defence also undertook and was directed by the Court to serve and file any notice they wished as to Charter issues 30 days before the trial. This was not done, and the defence filed their Charter Notice dated January 7, 2019 that same day, making it 17 days late. The Crown did not ask for an adjournment of the trial based on the late filing of the Charter Notice by the defence. January 16, 2019 [ 19 ] On January 16, 2019, the matter was brought back to court by the Crown to address the Crown’s expert appearing by video, which the defence consented to.

The defence then made an application to adjourn the trial because of the late notice of the expert, with the caveat that they wanted to know when a new trial date could be set. The defence’s adjournment request is a request that the Court is bound to grant in any event, pursuant to

section 657.3(4)(

a) of the Code . [ 20 ] It was on January 16, 2019, during the Crown’s application to have their expert appear by video link, that defense first raised the question of an adjournment based on the Crown’s late notice. The defence had mistakenly thought that the Crown was requesting an adjournment due to the late notice, but this was not the case.

The Crown pointed out that it would have to be a defence request if they wanted an adjournment, and that the Crown was not opposed as it is an automatic adjournment pursuant to the Code . [ 21 ] The defence made the request for the adjournment, contingent on what the next trial date might be. The defence did not canvass trial dates with the Crown or the court office in advance to learn of when the next date would be so that the defence could make a determination if they wanted the adjournment.

However, a new trial date was canvassed in open court that day, and February 15, 2019 was set for the new trial by agreement. The Crown had to confirm that their expert witness was available and both parties were granted leave to bring the matter back if their witnesses were not available. [ 22 ] The Crown, understanding that the trial had been adjourned at the defence’s request to February 15, 2019, cancelled its expert witness for the January 21, 2019 trial date.

The matter was brought back to court on Thursday, January 17, 2019 at the direction of the Court, as the set trial date of February 15, 2019 was not actually available. [ 23 ] On Friday, January 18, 2019 the Crown stated their understanding was that the defence requested an adjournment and it was granted to February 15, 2019 and that January 21 was cancelled and that a new trial date was now being sought.

Upon reviewing the transcripts, the Crown was proven correct. [ 24 ] The Court, on transcript page T40, line 26, stated that the January 21, 2019 trial date was vacated when everyone agreed to the February 15, 2019 trial date. The Court incorrectly stated that the parties were in the same position as they were on January 16, 2019, with the defence needing to know the new trial date before asking to adjourn from January 21, 2019. This was incorrect, as the January 21, 2019 date ended up simply being another date to consider if the Crown could get its expert back.

Things had changed and the trial had been adjourned from the January 21, 2019 date. The parties had leave to bring the matter back if their witnesses could not attend the February 15, 2019 date, and a new date would be set. [ 25 ] On Friday, January 18, 2019, when the June date was the only date that would work for everyone, the Crown made a request for an adjournment to the new date for they had cancelled their expert witness for January 21, 2019.

The Crown in fact did not have to make the request as this was a misunderstanding by the Court, because the Court had already granted the defence’s request to adjourn to February 15, 2019.

The adjournment from the February 15, 2019 trial date was the Court’s request for the adjournment. [ 26 ] The defence indicated that it was their intention to bring a Jordan delay application in any event as to the February 15, 2019 date, which was approximately three weeks after the original trial date, so the Crown did have notice of this position of the defence. [ 27 ] The parties and the Court appeared on the matter on January 16, 17, and 18, 2019, being the three court days before the trial in an attempt to arrange an alternative date. The Court set the new trial date for June 7, 2019.

There were earlier dates that the Crown and the Court could have ran the trial but they were not available to the defence, one being February 5, 2019. [ 28 ] With this background, I turn now to the defence’s application.

LAW [29] The law is set out in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 [Jordan] as to delay applications. The defence agrees thatthe time to trial is under the presumptive ceiling and as such the defence has the onus to show that the delay is unreasonable. This is setout in Jordan paragraphs 82 to 91: E. Below the Presumptive Ceiling [82] A delay may be unreasonable even if it falls below the presumptive ceiling.

If the total delay from the charge to the actual oranticipated end of trial (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) is less than18 months for cases going to trial in the provincial court, or 30 months for cases going to trial in the superior court, then the defencebears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps thatdemonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have.

Absentthese two factors, the s. 11(

b) application must fail. [83] We expect stays beneath the ceiling to be granted only in clear cases. As we have said, in setting the ceiling, we factored in thetolerance for reasonable institutional delay established in Morin, as well as the inherent needs and the increased complexity of mostcases.

(1) Defence Initiative — Meaningful and Sustained Steps [84] To discharge its onus where delay falls below the ceiling, the defence must demonstrate that it took meaningful, sustained steps toexpedite the proceedings. “Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that thecourt must consider” (Morin, at p. 802). Here, the trial judge should consider what the defence could have done, and what it actually did,to get the case heard as quickly as possible.

Substance matters, not form. [85] To satisfy this criterion, it is not enough for the defence to make token efforts such as to simply put on the record that it wanted anearlier trial date. Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded, it is incumbenton the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be triedquickly.

While the defence might not be able to resolve the Crown’s or the trial court’s challenges, it falls to the defence to show that itattempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown ontimely notice when delay was becoming a problem, and conducted all applications (including the s. 11(

b) application) reasonably andexpeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decisionmade by the defence. The defence is required to act reasonably, not perfectly. [86] Our colleague Cromwell J. criticizes this requirement as diminishing the right to be tried within a reasonable time. We respectfullydisagree. First, this Court already considers defence conduct in assessing s. 11(

b) applications. And the level of diligence displayed bythe accused is relevant in the context of other Charter rights as well, like the s. 10(

b) right to counsel (R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435, at p. 439). Second, as mentioned, the requirement of defence initiative below the ceiling is a corollary to theCrown’s justificatory burden above the ceiling. Third, this requirement reflects the practical reality that a level of cooperation betweenthe parties is necessary in planning and conducting a trial. Encouraging the defence to be part of the solution will have positiveramifications not only for individual cases but for the entire justice system, thereby enhancing — rather than diminishing — timelyjustice.

(2) Reasonable Time Requirements of the Case — Time Markedly Exceeded [87] Next, the defence must show that the time the case has taken markedly exceeds the reasonable time requirements of the case. Thereasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, andwhether the Crown took reasonable steps to expedite the proceedings. [88] The reasonable time requirements of the case will increase proportionally to a case’s complexity.

As Sopinka J. wrote in Morin: “Allother factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conductedonce it begins” (pp. 791-92). [89] In considering the reasonable time requirements of the case, trial judges should also employ the knowledge they have of their ownjurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemiccircumstances. [90] Where the Crown has done its part to ensure that the matter proceeds expeditiously — including genuinely responding to defenceefforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses — itis unlikely that the reasonable time requirements of the case will have been markedly exceeded.

As with assessing the conduct of thedefence, trial judges should not hold the Crown to a standard of perfection. [91] Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precisecalculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether eachstep was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird’s-eye view of the case.

All thissaid, this determination is a question of fact falling well within the expertise of the trial judge (Morin, per Sopinka J., at pp. 791-92).

[ 30 ] The Court, in paragraph 84 of Jordan , gives guidance as to what “meaningful and sustained steps” are. Did the defence take meaningful steps that demonstrate a sustained effort to expedite the proceedings? [ 31 ] The defence took meaningful steps to set the trial down as soon as the defence was available. The setting of the trial is on the court record, commencing on the first appearance. The Court had given dates in October, November, and December that defence counsel was not available.

The Court then left it to the parties to find a date and, after reviewing their schedules, the parties came up with a date of January 21, 2019 by agreement. [ 32 ] When setting down the trial, the Court instructed both parties to bring matters back to court 30 days ahead of the trial if there were outstanding unresolved matters.

In any matter there may be issues that arise after this 30 day window and would have to be addressed, but this procedure is designed to ensure trials proceed on time. [ 33 ] In paragraph 86 of Jordan , the Court specifically talks about the defence being involved in the process to ensure timely justice: Third, this requirement reflects the practical reality that a level of cooperation between the parties is necessary in planning and conducting a trial.

Encouraging the defence to be part of the solution will have positive ramifications not only for individual cases but for the entire justice system, thereby enhancing — rather than diminishing — timely justice. [ 34 ] There is nothing in the record to indicate that the defence had done anything, even so far as a phone call, email, or letter to the Crown, as to the missing information regarding the expert. [ 35 ] In addition, the defence did not file their Charter application in the time directed and agreed to, which might also have triggered the Crown to attend to their file and notice the error that had occurred as to the expert report. [ 36 ] I find that a sustained effort to expedite the proceedings requires that the defence follow the instructions of the Court and comply with their own undertakings.

This is particularly so when these directions are given in order to ensure that mistakes, errors, or missteps are caught and dealt with so as not to result in a trial being cancelled. This was not done by the defence. [ 37 ] While the initial error of not complying with the 30-day expert notice falls at the Crown’s feet, I find that the defence did not take sustained steps to ensure that the trial, once set, would be able to proceed on the trial date.

This is not asking perfection of the defence, but asking that they take reasonable steps, including doing what they were instructed to do by the Court, to ensure that the trial will proceed on the trial date. [ 38 ] The defence application fails on this ground. [ 39 ] I will also address the second stage of the test, being whether the case took markedly longer than it reasonably should have. Did the case take markedly longer than it reasonably should have? [ 40 ] On the second stage of the test the defence argued that because this is an impaired/over .08 case, Mr.

Needham has been without his licence since the time of the offence, due to the workings of the provincial legislation in Saskatchewan. This is correct. The defence said that in light of this restriction on Mr. Needham, a time to trial of 12.9 months is unreasonable. This was based on the defence’s position that the Crown is responsible for the full 12.9 months to trial in this matter. [ 41 ] I do not find that the Crown is responsible for all the delay as a result of the trial being adjourned. I would attribute 25% to

the defence. The added time from the original trial date is about 4.5 months, and about one month falls at the feet of the defence. This would place the time of time to trial at 11.9 months, being just less than one year. [ 42 ] However, for the purposes of this analysis I will consider whether a total time to trial of 12.9 months would be markedly longer than it should have been. [ 43 ] The defence primarily relies on the following cases for support for their argument: R v Noltcho , 2018 SKPC 26 , involving a delay of 15 months, and R v Sedighi , 2016 ONCJ 741 , with a delay of 14.5 months.

Complexity of the case [ 44 ] The case in this matter is not overly complex, although it does call for an expert for a “read back” analysis. The Crown and the Court have significant experience in drinking and driving offences as it is a mainstay of trials in the Saskatchewan Provincial Court. The defence counsel’s letterhead indicates that they are a criminal trial lawyer and presumably therefore also familiar with drinking and driving offences. Local consideration [ 45 ] The complexity comes in the booking of the trials because of the need to arrange a trial date when the expert is able to testify.

It is this additional expert witness that adds a number of months to the setting of the trial with the required reports, notices, and scheduling. The Court’s experience in the Swift Current Judicial Centre is that if the expert has to attend personally, it can well add 6 to 10 months of time to trial.

However, with the Court, the Crown, and the defence agreeing that the expert can appear by video, the additional time to trial with an expert in a drinking and driving trial is more in the 6-month range. [ 46 ] Drinking and driving trials, and almost any trial in the Swift Current Judicial Centre, can usually be set within one year. It is not unusual to have trials under and over this range. There is not a shortage of trial dates, as the Court is rarely unable to offer a trial date within 180 days of the first appearance.

The difficulty is always finding a date that both the Crown and the defense can attend, along with their witnesses. Swift Current Judicial Centre is served by two full-time Crown solicitors. When the Provincial Court has an open trial date it is generally without fail a day that the Crown is available. Historically, the difficulty in setting trial dates is the defence lawyer’s schedule. The busier the defence lawyer is, the longer the trial takes to be set. [ 47 ] This matter arose out of Maple Creek, Saskatchewan and would normally be tried in Maple Creek.

In Maple Creek, Provincial Court only sits once per month. Again to accommodate earlier trial dates and the expert appearing by video, the Court moved this matter to Swift Current which has three trial days per week, with the ability to add a special fourth day when needed. In addition, in special circumstances such as people being in custody or a trial date not being available within the 18-month Jordan time frame, the Court has the capacity to bring in additional judges.

Whether the Crown took reasonable steps to expedite the proceedings [ 48 ] The transcripts indicate the extent that the Crown was willing to accommodate and find dates for the original trial date as well as the adjourned date. The Court and the parties dealt with this matter on the three court days prior to the trial date trying to work out a resolution after the Court learned that the February 15, 2019 date it was adjourned to was not available.

In looking at a new date the Crown offered to switch Crowns to open up more possible dates, when the attending Crown was not available on a date that the defence could attend. [ 49 ] The Crown received the defence Charter Notice late, but did not object to the late notice and did not raise this issue.

CONCLUSION [ 50 ] In this matter I find that the time to trial of 12.9 months is not markedly longer than where it should have been.

While the Crown bears the larger burden of fault as to the need for the adjournment as requested by the defence, all parties including the Court are responsible for some of the errors that occurred that ended up having the trial adjourned from January 21, 2019 to June 7, 2019. [ 51 ] However, even with the new trial date, the trial is well within the time to trial for these types of matters and well below the Jordan 18-month mark. [ 52 ] In considering an application under the Jordan 18-month ceiling one must keep in mind the Court’s comments in Jordan at paragraph 83 : We expect stays beneath the ceiling to be granted only in clear cases.

As we have said, in setting the ceiling, we factored in the tolerance for reasonable institutional delay established in Morin , as well as the inherent needs and the increased complexity of most cases. [ 53 ] I find that it was not the purpose of the Supreme Court, by setting the 18-month time frame in Jordan and allowing a window to bring applications for delay under 18 months, to make the time to trial issue more complicated. The window is to allow applications in clear cases and not to allow the courts to set up separate time frames for separate offences.

Doing so would mean that each type of offence would end up with its own time frame, which if exceeded would automatically support a claim of a breach of one’s right to a timely trial. [ 54 ] I find that there is nothing in Mr. Needham’s circumstances of having his licence revoked by the provincial administration that warrants this to be a clear case of unreasonable delay. Mr.

Needham will still receive a trial within 12.9 months, which is well within the Jordan boundaries as well as within the normal range of time that a trial of this type requires to get to trial in this jurisdiction. [ 55 ] The time frame of 18 months set by Jordan was made so that everyone in the justice system knows the time frames that they must work within, to ensure that people have their trials in compliance with the Charter . Trials are set with the 18-month window in mind.

In setting a trial within a year, all parties know that they have 6 months to have the trial reset in order to be Jordan compliant, if some unforeseen matter arises. [ 56 ] The Supreme Court acknowledged that there may be cases that warrant a stay under the 18-month time but, based on the facts of this case, this is clearly not one of them. [ 57 ] I find no Charter breach in relation to the time to trial and the defence application for a stay of proceedings is dismissed. ______________________ K. Bazin, J