Her Majesty the Queen - v. -, 2014 SKPC 154

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 154 Date: July 28, 2014 Information: 37291587 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Wesley Ian Desjarlais Appearing: Ms. J. MacLean For the Crown Ms. K. Moen (CLASSIC) For the Accused DECISION ON VOIR DIRE B.D. WRIGHT , J I INTRODUCTION [ 1 ] The accused stands charged that he did, on or about January 27, 2012, commit an assault on Doreen Turcot contrary to s. 266 of the Criminal Code .

[ 2 ] The trial of the matter proceeded on June 9, 2014 by way of a voir dire concerning alleged breaches of s. 11(

a) and s. 11(

b) of the Charter , and the hearing of the trial proper. By agreement of the Crown and defence, all evidence with respect to the matter was called as part of the Charter application and applied to the trial proper. The within decision deals with the Charter application of the accused. II ISSUES [ 3 ] The issues in this proceeding are as follows:

a) Whether the period from the laying of the Information on March 7, 2012 until when the accused was first arrested on the charge on January 5, 2013, amounts to unreasonable delay pursuant to s. 11(

a) of the Charter ;

b) Whether the period of January 5, 2013 until the hearing of the trial on June 9, 2014 amounts to unreasonable delay pursuant to s. 11(b); and

c) If I conclude there have been violations of the ss. 11(

a) or 11(

b) rights of the accused, whether the charge should be judicially stayed pursuant to s. 24(1) of the Charter . III HISTORY OF THE PROCEEDINGS [ 4 ] The history of these proceedings, as gleaned from the evidence lead on this application and the trial proper, including the endorsements to Information 37291587, is as follows: 1. On January 27, 2012 the alleged assault occurred, and the complainant, Doreen Turcot, immediately attended to the Saskatoon Police Service and reported the incident at the front desk. 2.

Constable Geib was assigned the file in early February, 2012, and began his investigation on February 12, 2012 by contacting the Turcots. He obtained their version of the incident, and, as well, took a statement from Mr. Turcot. A statement from Mrs. Turcot had already been taken when the incident was initially reported. 3. After receiving the above information from the Turcots, Constable Geib concluded that an assault charge was warranted. He then attempted to locate the accused but could not as he did not have a current address or phone number.

Constable Geib testified that he was not able to locate the accused at his last known address (the address where the incident occurred), as the accused was evicted from that address. 4. As a result, Constable Geib had the Information sworn and a Form 7 warrant issued, on March 7, 2012. Both documents indicate the accused was of "no fixed address". 5. The accused was arrested pursuant to the warrant on January 5, 2013.

According to the testimony of the accused, he was pulled over for being parked in a no parking zone, and when the police were dealing with him for that matter they discovered the outstanding warrant for his arrest, and he was then arrested. This was when the accused first learned of the assault charge against him.

6. The accused was released on an officer-in-charge recognizance on the same day, January 5, 2013, and was required to attend court onJanuary 30, 2013. That recognizance indicated that his address was 2102 20th St. W., Saskatoon. 7. The accused failed to attend Saskatoon Provincial Court on January 30, 2013, and a bench warrant was authorized. That warrant wasissued on January 31, 2013. 8. Pursuant to the warrant issued on January 31, 2013, the accused was subsequently re-arrested on November 14, 2013. Once again,the accused was released on an officer-in-charge recognizance on the same day, November 14, 2013.

The recognizance required him toattend court on November 27, 2013. The recognizance indicated, once again, that his address was 2102 20th St. W., Saskatoon. 9. On November 27, 2013, the accused attended court, and the matter was adjourned for plea, by consent and at the request of theaccused, to January 14, 2014. The Information was endorsed: "Legal Aid letter. Denied." " Adj. for CLASSIC." It was furtherendorsed, at the direction of the presiding judge, as follows: "All delays to date have been caused by Accused." 10.

On January 14, 2014, the accused attended court, and the matter was adjourned for plea, by consent, to February 4, 2014, with theendorsements: "Seeking assistance from CLASSIC." "Adj. for Classic." 11. On February 4, 2014, the accused was not present in court but the Information shows that an individual named "Basinski" appearedfor the accused and the matter was adjourned for plea, by consent, to February 25, 2014. 12. On February 25, 2014, counsel from CLASSIC, T. Oleniuk, appeared for the accused and the matter was adjourned for plea, byconsent, to March 11, 2014. 13.

On March 11, 2014, Oleniuk again appeared for the accused and the matter was adjourned for trial to June 9, 2014. 14. On June 9, 2014, the within Charter application and trial was heard. IV ANALYSIS

a) Section 11(a) [5] The test for assessing whether there has been an unreasonable delay in informing the accused of the specificoffence was discussed in R. v. Delaronde, (SCC), [1997] 1 S.C.R. 213, affg (QC CA), [1996] R.J.Q.591 (C.A.), where the Supreme Court of Canada dismissed an appeal with respect to unreasonable delay under s. 11(

a) of the Charter,for the reasons of Otis J.A. in the Quebec Court of Appeal. [6] As stated by Otis J.A. in Delaronde at para. 27, a person becomes a person charged with an offence “…as ofthe date on which the information was laid….” [7] In Delaronde, Otis J.A. concludes that delay under s. 11(

a) should be analyzed using the same factors outlinedin R. v. Morin, (SCC), [1992] 1 S.C.R. 771, for assessing delay under s. 11(b), subject only to the adjustments requiredby the differences concerning the intent of ss. 11(

a) and 11(b), as well as the considerations governing the implementation of each ofthose legal rights. [8] With respect to the length of delay, it was noted by Otis J.A. at para. 40 that “[f]or the purposes of s. 11(

a) of

the Charter , the calculation of delay must end at the time when the accused has been informed of the offence. ” In the present case, that period would end on January 5, 2013 when the accused was arrested on the original warrant. The delay from the date the Information was laid is, therefore, approximately 10 months. That period of time is sufficient to warrant an inquiry into its reasonableness. [ 9 ] In my review of this matter, in assessing this delay of 10 months in accordance with the framework for analysis from Morin , there was no waiver by the accused.

The inherent time requirements factor is not an issue here, and there were no actions by the accused making him responsible for the delay of 10 months. Furthermore, it is my view that limits on institutional resources was not a factor.

As a result, the only issues remaining are the actions of the Crown, and prejudice to the accused. [ 10 ] With respect to the actions of the Crown, the defence argues that the police did not exercise due diligence in locating the accused during the period of March 7, 2012 (when the Information was sworn) until January 5, 2013 (when the accused was arrested), and that, therefore, this period of delay is attributable to the Crown. The defence says that the police did not check for a new address or telephone number for the accused. However, that was not the evidence of Cst. Geib.

The officer testified that he was not able to locate the accused as the address he had was not current (because the accused had been evicted), he had no current phone numbers, and he was not able to locate the accused. I do not equate this evidence with the police failing to exercise due diligence; rather, it equates with the police trying to locate the accused, but being unable to do so. [ 11 ] In cross-examination, defence counsel asked Constable Geib if he asked the landlord for a forwarding address for the accused. The officer testified that he did not recall, but did not believe that he did.

Defence counsel then asked whether the constable contacted any known family members. The officer replied that he could not recall if he did that either, or whether he "...just tried phone numbers or whatnot." Defence counsel suggests that this is indicative of the lack of due diligence by the police. However, this was the only evidence elicited by the defence with respect to this issue. This evidence falls short of establishing a lack of due diligence.

There was no evidence that the landlord (the complainant) even had a current address for the accused - not from the testimony of the complainant or her husband, not from the testimony of the accused, and not from the testimony of Cst. Geib. Furthermore, the order dated January 20, 2012 from the Office of Residential Tenancies (the "eviction order"), which was entered as Exhibit D-1, does not provide a forwarding address for the accused.

There was simply no evidence that the landlord had a forwarding address for the accused, and given the eviction order and the events of January 27, 2012 (the alleged assault), it seems completely unlikely that she would have such an address. In any event, there was absolutely no evidence that she did.

As a result, there is no basis for suggesting that the police could have located the accused earlier than January 5, 2013, by asking the landlord for a current address. [ 12 ] Likewise, with respect to the suggestion that the accused could have been located through known family members, there is absolutely no evidence the police knew of any of the accused's family members.

As a result, I also conclude there is no basis for suggesting this would have allowed the police to locate the accused sooner. [ 13 ] In the end result, I am satisfied with the explanation provided for the period of delay between March 7, 2012 and January 5, 2013. The evidence from Constable Geib was that he tried, but was unable, to locate the accused, and accordingly I cannot conclude that the actions of the Crown contributed to the delay in informing the accused of the offence. [ 14 ] With respect to the issue of prejudice to the accused, in Delaronde Otis J.A. stated at para. 56:

Section 11(

a) of the Charter is intended to protect an accused against the prejudice resulting from the time that has been allowed to elapse before he or she is informed of the specific offence of which he or she is being accused. This protection ensures that the accused will be able to provide a full answer and defence, and by doing so guarantees the accused ’ s right to a fair trial. [ 15 ] The Court then stated at para. 58: In addition, in the case at issue the prejudice related to s. 11(

a) cannot be evaluated from the angle of an infringement of the right to liberty or the right to security of the person, as it can be under s. 11(b), because the accused was not imprisoned or subjected to restrictive conditions of release, nor did he experience the anxiety and stress that could be associated with a pending criminal charge. As a result, only the prejudice related to an infringement of the right to a fair hearing can be considered in this case.

[16] The Court then concluded, at paras. 59-62, that prejudice could not be inferred in assessing whether the right to a fair hearinghad been infringed, and because the accused had not provided any evidence of actual prejudice, there was no violation of s. 11(a). [17] In this matter, the defence has not provided any evidence that the accused’s right to a fair trial has been impacted. The onlyprejudice referred to by counsel for the accused is that the accused was arrested and spent approximately 8 hours in custody.

However,this has nothing to do with his right to a fair hearing protected under s. 11(a); rather, it is relevant only to the evaluation of aninfringement of the right to liberty assessed under s. 11(b). Furthermore, there was no indication during the course of the proceedings ofany actual impairment of the accused’s ability to make full answer and defence. There was no suggestion, for example, that anywitnesses were unavailable due to the passage of time. Defence counsel was able to thoroughly cross-examine all Crown witnesses, andthe accused testified.

Throughout all of the evidence led, there was absolutely no indication of anything suggesting an impairment of theability to make full answer and defence. [18] As a result, I conclude there was no unreasonable delay for the period from March 7, 2012 to January 5, 2013. [19] I am further buttressed in my view that there was no unreasonable delay in informing the accused of the offence with whichhe was charged, by the recent Ontario Court of Appeal decision in R. v. Cisar, 2014 ONCA 151. The Ontario Court of Appeal states, atpara. 11, that

section 11(

a) provides two forms of constitutional protection – firstly, to provide notice of the specific offence, andsecondly, the right to be informed without unreasonable delay. [20] With respect to the second form of constitutional protection, the court states at para. 12: The second right protected by s. 11(a) … is the right to be informed without unreasonable delay. The content of this right must beconsidered in the context in which it is found. In my view, like the right to be informed of the specific offence, the object of theprotection against unreasonable delay is also primarily to protect the right to make full answer and defence. This understanding of theobjective of s. 11(

a) is also consistent with the context provided by other parts of s. 11 of the Charter, particularly the related right totrial within a reasonable time in s. 11(b). The extensive case law considering s. 11(

b) has identified the rights protected by that provisionas (1) the right to security of the person; (2) the right to liberty, and (3) the right to a fair trial. In R. v. Morin, (SCC),[1992] 1 S.C.R. 771 (S.C.C.), at p. 786, the court explained how those rights are protected: The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminalproceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trialincarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take placewhile evidence is available and fresh. [21] The Court then states, at para. 13, that: “[u]ntil an accused has been informed of the charge, it is only the right to a fair trialthat is impacted by delay.

If accused are not aware of the charge, they are not subject to the anxiety, concern and stigma of exposure tocriminal proceedings and their liberty is not impacted.” [22] In Cisar, the significant issue was whether the accused was prejudiced by a delay of over eight years in informing him of thecharges against him. The Court noted that prejudice in relation to s. 11(

a) relates to prejudice to the right to a fair trial, and that no actualprejudice to that right had been established by the accused. The Court then considered, at para. 22, whether prejudice could be inferred: Since there was no actual prejudice to the appellant, the appellant could succeed on his application under s. 11(

a) only if it is open to thecourt to infer prejudice. In considering unreasonable delay under s. 11(b), the court will infer prejudice from a lengthy delay in bringingan accused to trial. Inferred prejudice primarily arises from the impact of delay on the accused`s security and liberty interests. InDelaronde, Otis J.A. appeared to find that only actual prejudice is relevant under s. 11(a). As stated in the final two paragraphs of herreasons: Like the CIP Inc. case but for different reasons, the right to a fair trial constitutes the sole basis of prejudice alleged by the respondent.

No evidence going to establish “an actual impairment of its ability to make full answer and defence” was called by the respondent…. Although the issue of prejudice was at the centre of the hearing at first instance, the respondent chose not to call any evidence in thisregard and the whole of the evidence called by the parties does not permit one to find any impairment of the right to a fair trial.

As a result of the preceding, although the delay in the case at bar was much longer than it should have been, I consider that therespondent has not shown that the protection of his interests has been affected because the record does not indicate any unfavourableeffect on his right to a fair trial. Given the absence of evidence of prejudice by the respondent, the public interest in trying an accusedmust take precedence over the accused’s interest in obtaining a stay of the proceedings based on the mere passage of time. [23] In Cisar, although the Court notes that the Supreme Court in R. v.

Godin, 2009 SCC 26, establishes that prejudiceto fair trial rights may be inferred from delay, it further notes as follows at para. 26: However, there is nothing in Godin which undermines earlier decisions of the Supreme Court of Canada and especially Morin, which inmy view hold that it is open to the prosecution to establish there is no prejudice to rights protected by s. 11(

b) including fair trial rights. As Sopinka J. said for the majority at pp. 801-03: Accordingly, in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely thatsuch an inference will be drawn. In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for theenforcement of the individual right is seriously undermined. …..

Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. [24] In Cisar, the Court then concluded at para. 27 that: “If it is true, for s. 11(b), that inferred prejudice can berebutted, it must also be true for s. 11(a)….” [25] In my view, the period of 10 months which passed before the accused was notified of the offence is not a period of sufficientlength to support an inference that the accused’s right to a fair trial was impaired. Furthermore, even if prejudice could be inferred, thisis a case where any inferred prejudice is rebutted.

As I have already noted, there was no evidence led of any actual prejudice, and theevidence at trial demonstrated that there was no impairment to the accused’s ability to make full answer and defence. There was noviolation of the rights of the accused under s. 11(a).

b) Section 11(b) [26] The framework for an assessment under s. 11(

b) with respect to whether a delay is unreasonable was outlined bythe Supreme Court of Canada in R. v. Morin, (SCC), [1992] 1 S.C.R. 771, at pages 787–88: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula, but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, [ (SCC), [1989] 2S.C.R. 1120], “[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?” (p.1131). While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is toolong may be listed as follows: 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 the delay; and 4. prejudice to the accused. … The judicial process referred to as “balancing” requires an examination of the length of the delay and its evaluation in light of the otherfactors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, accountmust be taken of the interests which s. 11(

b) is designed to protect. Leaving aside the question of delay on appeal, the period to bescrutinized is the time elapsed from the date of the charge to the end of the trial. See R. v. Kalanj, (SCC), [1989] 1S.C.R. 1594. The length of this period may be shortened by subtracting periods of delay that have been waived. It must then bedetermined whether this period is unreasonable having regard to the interests s. 11(

b) seeks to protect, the explanation for the delay andthe prejudice to the accused. [27] With respect to the appropriate remedy for unreasonable delay, the Saskatchewan Court of Appeal held in R. v.Pidskalny, 2013 SKCA 74, that if, after an application of the legal framework from Morin, it is determined that there has been anunreasonable delay, a judicial stay of proceedings is the minimum remedy for a breach of

section 11(

b) of the Charter. [28] I will now turn to an application of the legal framework outlined in Morin. 1. LENGTH OF DELAY [29] As noted in Pidskalny at para. 14, the first step, assessing the length of delay, is treated as a threshold issue. Onlyif the delay is sufficiently long so as to raise the issue of whether an accused's

section 11(

b) Charter right might have been prejudicedwill the court continue with its inquiry. Here, the period of time from the laying of the charge to the time the trial was held wasapproximately 27 months. This overall delay is sufficiently long to trigger a judicial inquiry into the reasonableness of it. 2. WAIVER [30] The second step of the inquiry involves consideration of whether the accused has waived any periods of time included in theoverall delay. Any such periods of time must be subtracted from the overall assessment of the delay. [31] In this case, I conclude that there was no waiver by the accused.

Regardless of the endorsement to theInformation made by the presiding judge on the November 27, 2013 appearance, that "all delays to date have been caused by Accused",there was no express waiver by the accused. The accused testified that when he attended court on November 27, 2013, unrepresented, hewas not aware that he was waiving delay, was not asked about that specifically, and did not understand what that entails.

As set out inMorin at paragraph 38, "... in order for an accused to waive his or her rights under s. 11(b), such waiver must be clear and unequivocal,with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights.... Waiverrequires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is not turned tothe issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver."

[ 32 ] Clearly, given the testimony of the accused, there was no waiver of time periods in this matter. However, that does not mean the conduct of the accused during the course of these proceedings is not relevant to other aspects of the inquiry into unreasonable delay, as I will discuss below. 3. REASONS FOR THE DELAY [ 33 ] As was noted in Morin , the four categories of reasons which may explain the delay are: inherent delay; actions of the defence; actions of the Crown; and institutional delay. a.

Inherent Delay [ 34 ] As noted in paras. 41 and 42 of Morin , all offences have certain inherent time requirements which inevitably lead to delay, including the complexity of the case, activities such as retention of counsel, bail hearings, police and administration paperwork, disclosure, and the like. [ 35 ] In this case the Court is dealing with a relatively uncomplicated prosecution which involves a single allegation of assault, with one accused, one victim and one offence.

The entirety of the evidence is eye-witness testimony, and there are no expert witnesses or any other type of evidence which can be said to increase the complexity of the case. In these circumstances, the inherent time requirements would not be lengthy.

In my view, the periods of time from January 5, 2013 to January 30, 2013 (when the accused was released on the first recognizance to appear in court), and from November 27, 2013 until March 11, 2014 (when the accused actually did first appear in court until when the matter was set down for trial), give a good approximation of the inherent time requirements of a case such as this. That period is approximately 4 to 5 months. b.

Actions of the Defence [ 36 ] As noted in paragraph 22 in Pidskalny : This step in the inquiry looks to the actions of the accused which, although they cannot be said to have amounted to waiver, nevertheless ought to be considered when assessing the reasonableness of the overall delay (see: R. v. MacDougall , at para. 48; R. v. Morin , at pp. 793 – 94; and R. v. Richards , at para. 27).

Any delay which is recognized as flowing from the actions of the accused must be attributed to the accused and weighed against other explanations for the overall length of the delay. [ 37 ] In this case, when the accused was first arrested on the Form 7 warrant on January 5, 2013, he was released the same day on a recognizance to appear in court on January 30, 2013. However, as noted, he failed to attend court and a bench warrant was issued. He was not subsequently arrested on the new warrant until November 14, 2013.

On that date, he was released on a further recognizance requiring his attendance in court on November 27, 2013, on which date he did, in fact, appear. [ 38 ] In the submission of defence counsel, the entire period of March 7, 2012 (the date the Information was sworn) until November 27, 2013 (the date the accused first appeared in court), was attributable to the delay of the Crown. However, in my view, of that whole period, there are two distinct periods of time that must be assessed separately. The first period of time, from March 7, 2012 until January 5, 2013, I have already assessed under s. 11(a).

The second period of time, from January 5, 2013 until November 27, 2013, I will address here in the context of the actions of the accused. [ 39 ] The defence argues that as the accused appears to have resided at the same address throughout this period of time (both the recognizance dated January 5, 2013 and the recognizance dated November 14, 2013 show his address as 2102 20th St. W., Saskatoon), the police could simply have attended to that address and arrested him earlier than November 14, 2013. Therefore, the defence argues, this entire period of delay should be attributed to the Crown.

However, this argument fails to acknowledge the most salient fact of what occurred - that none of this delay would have resulted but for the accused failing to attend court on January 30, 2013. If the accused had simply attended court, as he was required to do, none of this delay would have occurred. Instead, he chose to ignore

the proceedings. These are not the actions of someone who is pursuing a speedy resolution of his charges. As was noted in Morin at para. 62 : "The purpose of s. 11(

b) is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider." [ 40 ] In my view, the period of delay from January 5, 2013 to November 27, 2013 is attributable solely to the actions of the accused. c. Actions of the Crown [ 41 ] The defence argues that the entire period of delay from March 7, 2012 to November 27, 2013 is attributable to the Crown because the police were not diligent in locating and arresting the accused on this charge.

However, with respect to the period of March 7, 2012 to January 5, 2013, I have already concluded – in my assessment under s. 11(a) – that there was no unreasonable delay with respect to that period. Furthermore, I have already assessed the period from January 5, 2013 to November 27, 2013, and concluded that period of delay is attributable solely to the actions of the accused. As a result, I conclude that none of the delay can be attributed to the actions of the Crown. d.

Institutional Delay [ 42 ] As noted in Morin at para. 47 , institutional delay "... is the period that starts to run when the parties are ready for trial but the system cannot accommodate them." Using that definition, in the present case the institutional delay would appear to be the period from March 11, 2014, when the parties appeared in court to set the trial date, and June 9, 2014, the trial date that was set. This period of 3 months is well within the guidelines established in Morin . There was no unacceptable institutional delay here. 4.

PREJUDICE TO THE ACCUSED [ 43 ] As noted in Morin , prejudice to the accused ’ s s. 11(

b) protected rights can be inferred from prolonged delay. However, as previously noted, the Court stated at para. 62 that: “ [t]he purpose of s. 11(

b) is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider. ” Furthermore, apart from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. [ 44 ] As I have already discussed in my analysis under s. 11(a), the only prejudice referred to here by defence counsel was that the accused was arrested and spent approximately 8 hours in custody.

In my view, that was not as the result of any delay which may have occurred, but rather was simply a result of the accused being charged with the offence. There was no other evidence of prejudice. Furthermore, the fact that the accused failed to attend court, resulting in approximately 10.5 months of delay, must also be considered. In my view, this is a case where the evidence dispels any notion of prejudice to the accused.

V CONCLUSION [ 45 ] In conclusion, although at first blush a period of 27 months might seem excessive, in the circumstances of this case, and for the reasons outlined above, I conclude there has been no unreasonable delay, and no violations of s. 11(

a) or s. 11(

b) of the Charter . The application of the defence for a stay of proceedings pursuant to s. 24(1) of the Charter is denied. ______________________________ B.D. Wright, J