Her Majesty the Queen - v. -, 2013 SKPC 173

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 173 Date: October 16, 2013 Information: 39985125 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - James Kyle Pankiw Appearing: Bryce Pashovitz For the Crown Mark Brayford, Q.C. and Brian Pfefferle For the Accused DECISION ON UNREASONABLE DELAY APPLICATION D.E. LABACH , J INTRODUCTION [ 1 ] The accused, James Pankiw, is charged that on July 26, 2011, at or near Saskatoon, Saskatchewan, he did operate a motor vehicle while his ability to do so was impaired contrary to section 253(1) (

a) of the Criminal Code and further, that he did operate a motor vehicle while his blood alcohol level exceeded .08 contrary to section 253(1)(

b) of the Criminal Code . He entered a not guilty plea to both these charges and his trial was set to begin on March 4, 2013.

[ 2 ] On February 15, 2013, Defence counsel gave notice to the Crown of their intention to bring an application for disclosure of the complete calibration, maintenance, history and usage logs and related certificates in relation to the screening device and the Intoxilyzer machine used to test the accused as well as can-says from all officers dispatched or in direct communication with the accused and copies of any searches or inquiries made by officers involved in the investigation. Consequently, on March 4th a disclosure voir dire was entered into and witnesses were called.

The voir dire took a day and a half to complete. On March 27, 2013, I rendered a written decision allowing the Defence application in part. See R. v. Pankiw 2013 SKPC 47 . [ 3 ] The case was adjourned following my decision so that the Crown could comply with the Court’s order that they provide the Defence with further disclosure.

A number of further adjournments occurred until the Crown eventually provided the disclosure, following which the accused’s matter was re-scheduled for trial to October 29, 30, and 31, 2013. [ 4 ] The February 15 th notice that the Defence served on the Crown also stated that the Defence was alleging that the accused’s

section 11(

b) Charter right to be tried within a reasonable time had been infringed. As a result, at the same time that the October trial dates were set, the Court set September 26, 2013 as the date for the accused’s unreasonable delay application. After consideration of the oral and written submissions made by both counsel, this is my decision on that application. HISTORY OF PROCEEDINGS [ 5 ] Following an incident that began on the evening of July 25, 2011 and carried on into the early morning hours of July 26 th , the accused was charged with drinking and driving.

He was released from the Saskatoon Police station with an Appearance Notice with a first court date set for August 10, 2011. The Information charging the accused with these offences was sworn July 27, 2011. [ 6 ] The accused quickly hired Mr. Jay Watson to defend him and on August 2, 2011, a letter from Mr. Watson’s office was faxed to the Crown requesting disclosure. On August 10th, the Crown provided an initial disclosure package to Mr. Watson. [ 7 ] On August 10 th , a lawyer from Mr. Watson’s office appeared in Saskatoon Provincial Court on the accused’s behalf.

The accused was not present and the Crown elected to proceed summarily on the charges. Defence counsel adjourned the case to September 6 th for plea and advised the Court that they were prepared to waive delay to this adjourned date. [ 8 ] Shortly after this first court appearance, the accused hired new Defence counsel, Mr. Mark Brayford, Q.C., to represent him. On August 16, 2011, Mr. Brayford faxed a letter to the Crown advising that he had received the initial disclosure package from Mr.

Watson and requesting any further disclosure they had, including: . . . . copies of all statements and can-says in relation to any potential witnesses, whether the Crown intends to call them or not, copies of all notes made by any of the aforementioned persons, and a copy of any conversations or statements attributed to my client, whether written or oral . . . . and the calibration and annual maintenance records in relation to any alleged approved devices used in this investigation . . . . [ 9 ] On September 6, 2011, an agent for Mr.

Brayford appeared in court on the accused’s matter and adjourned the case to September 19 th . The transcript from this court appearance indicates that the adjournment was by consent and was requested because the Defence was waiting for further disclosure. [ 10 ] On September 19, 2011, Mr. Brayford attended court on the accused’s behalf and adjourned the matter to October 5 th . The reason given for the adjournment was that the electronic disclosure was not ready yet. On the same day, Mr. Brayford faxed a letter to the Crown. In the first paragraph of this letter he said:

Not to diminish the generality of my disclosure request in my letter of [June 2 nd ], the two things that I would particularly appreciate receiving prior to proceeding further are the police station videos and the 911 calls that my client made, along with those of the other drivers, along with any corresponding communication directly to or from the police officers. [ 11 ] Either just before the October 5 th court appearance or at the appearance, the Crown provided further disclosure to the Defence. However, Mr.

Brayford had not had time to review the disclosure and as a result, he adjourned the case to October 27, 2011. The adjournment was by consent. [ 12 ] There is no evidence as to what correspondence or conversations occurred between Crown and Defence between October 5 th and 27 th , however on the October 27 th court appearance, Mr. Brayford told the Court that he was still waiting for some electronic disclosure. There is nothing in the transcript of this court appearance indicating that the Crown disputed this comment. The case was then adjourned to November 21 st . [ 13 ] The Crown sent a letter to Mr.

Brayford dated October 27, 2011 forwarding more disclosure. There is no indication in the letter nor any evidence before me as to specifically what was disclosed on this date. [ 14 ] On November 21st, Mr. Brayford attended court and adjourned the accused’s matter to December 14 th . There was no indication in the court transcript as to why the adjournment was requested. [ 15 ] Mr. Brayford next appeared in court on the accused’s matter on December 14, 2011. He advised that he was still waiting for further disclosure and adjourned the matter to January 17, 2012.

There was nothing in the transcript indicating that the Crown took issue with this adjourned date. [ 16 ] On January 4, 2012, the Crown sent Mr. Brayford some further disclosure on the accused’s case. The cover letter indicates that what was disclosed was a disk labelled “Saskatoon Detachment Suspicious Person Defence”. [ 17 ] On January 17th, Mr. Brayford attended court and confirmed that he had received some additional disclosure from the Crown. He said that there may be some further disclosure flowing from this and that the Crown was going to look into it.

The matter was adjourned by consent to February 6, 2012. [ 18 ] On January 19th, the Crown sent some more disclosure to the Defence. The cover letter stated it was a DVD but there is no evidence as to what was on the DVD. [ 19 ] On February 6th, Mr. Brayford again appeared and adjourned the accused’s matter. According to the transcript of this appearance, the matter was adjourned to February 29, 2012 because the Crown was trying to get a further DVD to the Defence. [ 20 ] On February 29th, Mr.

Brayford appeared on behalf of the accused and advised that he was still waiting on some electronic disclosure relevant to the accused’s defence. As a result, he was asking the case be adjourned to March 22, 2012. The Crown took no issue with this date or the reason suggested by Mr. Brayford for the adjournment. [ 21 ] On March 22 nd , an agent appeared for Mr. Brayford and adjourned the accused’s matter to April 18th. No reason was given for the adjournment and the Crown did not oppose the request. [ 22 ] On April 18, 2012, an agent again appeared for Mr. Brayford on the accused’s case.

The agent adjourned the case to May 10 th and indicated that they were prepared to waive delay from this appearance to the May date. The Crown agreed to the adjournment given the accused’s waiver of delay. The Court was not advised as to the reason for this adjournment.

[ 23 ] Following this appearance, Mr. Brayford was still of the view that there was some disclosure outstanding. On May 8, 2012, he wrote a lengthy letter to the Crown outlining his concerns. A copy of this letter was filed with the Court however the body of the letter has been whited-out. Despite that, there is no dispute amongst counsel that in this letter Mr. Brayford outlined his concerns regarding the disclosure issue and asked that this matter be reviewed by a senior Crown Prosecutor. [ 24 ] On the May 10, 2012, court appearance, Mr.

Brayford did not yet have a response from the Crown to his May 8 th letter. Therefore he again asked for an adjournment. The Crown was opposed to another adjournment without a waiver of delay and advised the presiding judge that they were prepared to set a trial date. It appears that Mr. Brayford was not prepared to set a trial date and did not feel that he should have to waive delay given that he was waiting for a response from the Crown.

Ultimately the Judge adjourned the case to May 16, 2012 and noted that it was a Defence request for an adjournment to which the Crown was opposed. [ 25 ] At some point following court on May 10 th , Crown and Defence contacted the Saskatoon Provincial Court Case Manager and obtained a trial date of November 5, 2012 at 9:30 a.m. in courtroom 9 for a one day trial of the accused’s case.

The Trial Request sheet that was completed by the Case Manager stated that there were “ongoing disclosure issues”, that delay was “to be discussed in court” and that earlier dates of October 11th and 29th were offered for the trial but were not acceptable to the parties. There is nothing on this sheet explaining why or to whom these earlier dates were not satisfactory. [ 26 ] On May 11, 2012, Mr. Bruce Bauer, the Associate Regional Crown Prosecutor, responded by letter to Mr. Brayford that: With respect to disclosure, the position of the Crown is that disclosure is complete.

Although your letter mentions missing calls, it is the Crown position that all of the calls from your client to the police that were recorded by the police have been disclosed to you. Any calls between your client and an officer not involved in dispatch were not recorded by the police. As a result, these calls are not missing. [ 27 ] On May 16th, Mr. Brayford attended court, entered a not guilty plea to both charges on the accused’s behalf and had the trial formally set to November 5, 2012.

The transcript of this court appearance is clear that delay is very much an issue in this case. [ 28 ] On September 6, 2012, the Crown faxed a letter to Mr. Brayford stating that they had spoken to the RCMP and confirmed that any phone calls between the accused and an officer not involved in the dispatch were not recorded. [ 29 ] On September 7, 2012, Crown and Defence counsel attended a case management conference for the accused’s case.

In consultation with the Case Management Judge, the parties determined that one day would not be sufficient to complete the accused’s trial so the November 5th trial date was vacated. New trial dates were set to March 4 and 5, 2013. On the trial sheet for the new court dates it indicated that disclosure was ongoing. On the case management form, the Judge made the following notation: - disclosure issue - was call with RCMP officer recorded? - if not available, Defence wants officer’s notes or report re: this conversation. - Crown will follow-up.

There is no discussion on the form that the disclosure issue included any of the Intoxilyzer EC/IR II or Approved Screening Device records. [ 30 ] On January 30, 2013, Defence counsel received another disclosure package from the Crown. One of the documents in the package was an e-mail from Corporal Gerry Pankratz with an attached report. The e-mail read: Sean, here you go. I have no notes, this is the only report.

Gerry Corporal Gerry Pankratz, Montmartre Community Detachment Apparently Corporal Pankratz was the RCMP officer that had been speaking to the accused on the night in question. The report attached to this e-mail was entitled “Occurrence

Summary” and contained a one paragraph

summary of his cell phone conversations with the accused. The other items disclosed were Supplemental SPS Occrrence Reports and a disk labelled “1169114 CD”. [ 31 ] On February 15, 2013, Defence counsel served the Crown and filed with the Court a “Notice to the Attorney General of Canada and the Minister of Justice for Saskatchewan Pursuant to The Constitutional Questions Act ” indicating among other things, that he intended to argue the following:

a) that the accused’s sections 7, 11(

b) and 11(

d) Charter rights were violated in that the Crown refused to provide complete disclosure which led to unacceptable delay in getting this matter on to trial and continuing publicity prejudicing the accused’s reputation;

b) that the accused’s sections 8 and 9 Charter rights were violated in that the officers lacked reasonable and probable grounds to make a breath demand on the accused;

c) the applicability of the Defence of necessity and officially induced error;

d) that the accused’s

section 12 Charter right would be violated if the accused was convicted and a one year driving prohibition imposed. Such a driving conviction would be cruel and unusual punishment on the facts of this case;

e) that there be an exclusion of evidence pursuant to section 24(2) of the Charter or a stay of proceedings pursuant to section 24(1) of the Charter or that section 259(1) (

a) of the Criminal Code and section 141(1) and (3) of The Traffic Safety Act be declared of no force and effect. [ 32 ] On February 28, 2013, the Crown sent another disclosure package to Defence counsel. This package included the following documents: 1. The initial inspection report for the Intoxilyzer EC/IR II S/N 011399 (one page); 2. Maintenance records for the Intoxilyzer EC/IR II S/N 011399 (two pages); 3. Alcohol standard change form/supervisor test prior to test (one page); 4. Maintenance record for ASD #19, S/N ARTM - 0400 which was used for test (one page); 5.

Alcotest calibration record for ASD #19 for the test (one page). [ 33 ] The accused’s trial was set to begin on March 4, 2013. This was the first date that the accused came to court on his charges. Up until this point in time, his lawyer had always attended on his behalf. At the outset of the proceedings, Mr. Brayford advised that in his view, there were still a number of pieces of disclosure that the Crown had not disclosed that were necessary in order for the accused to be able to make full answer and defence to the charges he was facing.

Specifically, he felt that it was incumbent on the Crown to disclose to him the complete calibration, maintenance, history and usage logs and related certificates in relation to the screening device and the Intoxilyzer machine used to test the accused as well as can-says from all officers dispatched or in direct communication with the

accused and copies of any searches or inquiries made by the officers involved in the investigation. [34] It was the Crown’s position that they had disclosed all relevant calibration, maintenance and usage logs and appropriatecertificates in relation to both the approved screening device and Intoxilyzer used in this particular case and that if anything further inrelation to these instruments was disclosable in light of the recent Supreme Court of Canada decision in R. v. St.-Onge Lamoureux, 2012SCC 57 , [2012] S.C.J. No. 57 (S.C.C.), they would like the Court’s direction in that regard.

As for the requested can-says andcopies of any searches or inquiries, the Crown advised that they had canvassed all officers involved in this case and all the informationthey had received from these officers had been provided to the Defence. In other words, there was nothing further to give to the Defenceregarding the police officers’ evidence. [35] Having alerted the Crown to this issue in his February 15th Charter notice, the Defence wanted to proceed with a disclosureapplication before beginning the trial.

The Crown agreed that it was appropriate to deal with this issue at the outset of the proceedingsso the Court entered into a disclosure voir dire. The Crown called the Intoxilyzer technician on the voir dire and the Defence did not callany witnesses. However, with the consent of the Crown, the Defence filed an affidavit of the accused setting forth pertinent informationnecessary for their application.

This voir dire took one and one-half days to complete, following which the Court adjourned its decisionto March 14, 2013. [36] The Court’s decision was not completed by the March 14th court date so the case was further adjourned to March 27th. Onthat date, the Court advised the parties orally of the result of this application and a lengthy written decision was provided to them thefollowing morning. In

summary, the Court allowed the Defence disclosure application in part. The Court determined that some of therecords regarding the roadside screening device and the Intoxilyzer EC/IR II used to test the accused on the night in question weredisclosable. However, the Court was not satisfied that there was any police officers’ evidence, searches or inquiries that had not alreadyproperly been disclosed to the Defence. Based on its finding, the Court made an Order directing the Crown to provide to the Defencethe following: 1.

The calibration logs, maintenance logs, instrument usage logs, alcohol standard change logs, the simulator annual certificates and theanalyst’s certificate or reporting letter purporting to state the suitability of the alcohol standard solution for the Intoxilyzer EC/IR II,Serial No. 011399 for the period from the date in May, 2011 when this machine was first put into service at the Saskatoon Police Serviceuntil and including its yearly annual maintenance date in 2012; 2.

Any bulletins received by the Saskatoon Police Service regarding the Intoxilyzer EC/IR II model to the extent that they reference anycalibration, maintenance or operating issues; 3. The use, maintenance history and calibration logs for approved screening device No. 19, Serial No. ARTM-0400 from and includingJuly 1, 2011 to and including August 31, 2011; 4. The annual certificate regarding the record of annual maintenance for the approved screening device No. 19, Serial No.

ARTM-0400immediately prior to July 26, 2011 as well as the next annual maintenance certificate subsequent to July 26, 2011. [37] At the request of the Crown, the Court agreed to adjourn the accused’s case to April 15th to allow the Crown a reasonable time to comply with the Order. On April 9th the Crown sent a letter to Defence with what they called the Intoxilyzer EC/IR II disclosurepackage. There is nothing before me as to what, specifically, was part of this package.

However, Defence counsel did not feel that itcomplied with the Court’s order. [38] On the April 15th court date, Defence advised that some of the disclosure ordered by the Court had been provided but not allof it. Defence undertook to provide a letter to the Crown outlining what they felt was still required pursuant to the Court’s order. The case was then adjourned to April 25th. [39] On April 23rd , Mr. Brayford faxed a four page letter to the Crown advising that he felt that a considerable amount of theordered disclosure was still outstanding.

He specified what things had not as yet been disclosed which he felt were caught by the Court’sorder.

[40] The Crown was not able to address the concerns of Mr. Brayford set forth in his letter by the April 25th court date so the matter was further adjourned to May 9th. On May 9th, the Crown was still trying to obtain the disclosure ordered by the Court so the matter was adjourned to May 23rd. On May 23rd the Crown still had not satisfied the order of the Court so the case was again adjourned to June 18th. [41] Between the May 9th and June 18th court dates, the Crown provided further disclosure packages to the Defence on May 9th, May 13th and June 17th.

On the June 18th court appearance, both Crown and Defence were agreed that the matter could now be reset fortrial. However, they were of the view that three days would now be required to complete the trial so the trial was set for October 29, 30and 31, 2013 at 9:30 a.m. in courtroom 3. This was the first three available dates the Court could offer the parties. [42] Defence counsel also advised that he wished to have a separate date set to pursue the

section 11(

b) Charter violation that hehad identified in his February 15, 2012 Charter notice to the Crown. It was agreed that this unreasonable delay application would beheard on September 26, 2013. [43] On September 26th, the Crown and Defence argued the

section 11(

b) Charter issue. This was the only other date besidesMarch 4 and 5, 2013, that the accused attended court on his case. Following the argument, I adjourned my decision to October 16, 2013. If I dismissed the Defence application then the trial would proceed on October 29th. ISSUES

a) Has there been a violation of the accused’s right to be tried within a reasonable time as guaranteed by

section 11(

b) of theCharter?

b) If the accused’s

section 11(

b) Charter right has been violated, what is the appropriate remedy? ANALYSIS

a) Has there been a violation of the accused’s right to be tried within a reasonable time as guaranteed by

section 11(

b) of theCharter? [44] There have been a number of significant Supreme Court decisions on how the Court is to deal with an unreasonable delayapplication. In R. v. Morin, (SCC), [1992] 1 S.C.R. 771, the Supreme Court said that a court should balance thefollowing factors when dealing with this type of application: 1. The length of the delay; 2. Waiver of time periods; 3. The reasons for the delay, including:

a) inherent time requirements of the case;

b) actions of the accused;

c) actions of the Crown;

d) limits on institutional resources; and

e) other reasons for delay. 4. Prejudice to the accused. [45] In R. v. Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3, the Supreme Court cautioned judges against a microscopicexamination of the delay and applying a mathematical formula to determine if the length of the delay is reasonable or not. Each case isto be determined on its own particular facts. At paragraph 18 the Court said: [18] . . . . This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning whycertain delays occurred.

It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis.

AsSopinka, J. noted in Morin at page 787,“[t]he general approach . . . is not by the application of a mathematical or administrative formulabut rather by a judicial determination balancing the interests which [section 11(b)] is designed to protect against factors which eitherinevitably lead to delay or are otherwise the cause of delay.” [46] Finally, the Supreme Court said that it is preferable for trial courts to adjudicate delay applications on the facts without resortas to who bears the burden of proof. In R. v.

Morin, supra, at paragraph 33, the Court said: [33] The role of the burden of proof in this balancing process was set out in the unanimous judgment of this court in Smith, supra, atpages 1132-33, as follows: I accept that the accused has the ultimate or legal burden of proof throughout. A case will only be decided by reference to the burden ofproof if the court cannot come to a determinant conclusion on the facts presented to it. Although the accused may have the ultimate orlegal burden, a secondary or evidentiary burden of putting forth evidence or argument may shift depending on the circumstances of eachcase.

For example, a long period of delay occasioned by a request of the Crown for an adjournment would ordinarily call for anexplanation from the Crown as to the necessity for the adjournment. In the absence of such an explanation, the Court would be entitledto infer that the delay is unjustified. It would be appropriate to speak of the Crown having a secondary or evidentiary burden under thesecircumstances.

In all cases, the Court should be mindful that it is seldom necessary or desirable to decide this question on the basis ofburden of proof and that it is preferable to evaluate the reasonableness of the overall lapse of time having regard to the factors referred toabove. I do not read the Askov decision as having departed from this statement although portions of the reasons of Cory, J. emphasized certainaspects of the evidentiary burden on the Crown. [47] Bearing these comments in mind, I will examine the Morin factors in light of the history of the proceedings in this case.

Length of the Delay [48] In this case just over 27 months will have gone by from July 26, 2011, the date the accused was charged with drinking anddriving, until the start of his trial on October 29, 2013. Normally, drinking and driving cases are not complicated cases, however in hisConstitutional Questions Act Notice, the Defence raised a number of Charter arguments including the possibility of attacking theconstitutionality of

section 259 of the Criminal Code and certain sections of the Traffic Safety Act as well as the defences of necessityand officially induced error. Even despite these defence arguments, it should not normally take 27 months to get this matter on to trial. A delay of this length raises an issue as to reasonableness and requires a closer examination of why it took so long to get this case on totrial. Waiver of Time Periods [49] In Morin, supra, the Supreme Court said at paragraph 38:

[38] This Court has clearly stated that in order for an accused to waive his or her rights under

section 11(b), such waiver must be clearand unequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on thoserights (Korponay v. Attorney General of Canada, (SCC), [1982] 1 S.C.R. 41 at p. 49; see also Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383 at pp. 394 - 396; Askov, supra at pp. 1228 - 29) Waiver can be explicit or implicit. If thewaiver is said to be implicit, the conduct of the accused must comply with the stringent test for waiver set out above. . . . . 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. Such conduct maybe taken into account under the factor “actions of the accused” but it is not waiver. As I stated in Smith, supra, which was adopted inAskov, supra, consent to a trial date can give rise to an inference of waiver. This will not be so if consent to a date amounts to mereacquiescence in the inevitable. [50] The Court record shows that Defence counsel explicitly waived delay in this case on two occasions.

The first occasion wasAugust 10, 2011 to September 6, 2011; the second was April 18, 2012 to May 10, 2012. Other than these 49 days, there were no otherexplicit waivers of delay by the Defence. [51] The only period of time over which it could be argued that the accused may have implicitly waived delay was when his first trial date was set. On May 10th a Trial Request form was completed by the Case Manager in consultation with both Crown and Defence. The form stated that the agreed trial date was November 5, 2012 and the trial would take one day.

However, the form is clear that earlier dates were offered, that being October 11th or 29th, but were not acceptable. Unfortunately, there is nothing on the form as to whothese dates were unacceptable to or why they were unacceptable. The form does not indicate that Defence was waiving any delay to thetrial date or the offered dates. As a matter of fact, the form states that delay will be discussed in court. Based on this comment, delaywas obviously very much an issue for the Defence. [52] The accused’s trial was formally set to the November 5th date on May 16, 2011.

There is nothing in the transcript of this May 16th court appearance or endorsed on the court record indicating why these earlier trial dates were not acceptable or whether it wasCrown or Defence that the dates did not work for. The only notation of significance appears on the court record and states that delay isan issue for Defence. [53] Given the equivocal nature of this evidence and based on the fact that the Defence put on the record that delay was an issue, Iam not prepared to find that there was an implicit waiver of delay by the Defence from October 11, 2011 to November 5, 2011.

Inherent Time Requirements of a Case [54] In Morin, supra, the Supreme Court stated that: [41] All offences have certain inherent time requirements which inevitably lead to delay. Just as the fire truck must get to the fire, somust a case be prepared. The complexity of the trial is one requirement which has often been mentioned. All other factors being equal,the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins.

Forexample, a fraud case may involve the analysis of many documents, some conspiracies may involve a large number of witnesses andother cases may involve numerous intercepted communications which all must be transcribed and analyzed. The inherent requirementsof such cases will serve to excuse longer periods of delay than for cases which are less complex. Each case will bring its own set offacts which must be evaluated. Account must also be taken of the fact that counsel for the prosecution and the defence cannot beexpected to devote their time exclusively to one case.

The amount of time that should be allowed counsel is well within the field ofexpertise of trial judges. [55] The accused is charged with drinking and driving. Usually these tend to be relatively straightforward cases. In this case, theaccused was arrested and charged with the offences on July 26, 2011 but was released shortly thereafter and given an Appearance Noticefor a first court date of August 10, 2011. Even before this first appearance, the accused hired a lawyer and the lawyer requested disclosure.

At the first appearance on August 10th, the Crown had an initial disclosure package and gave it to the Defence. The case was adjourned to September 6th presumably for Defence counsel to review the disclosure package and discuss the case with the accused.

[ 56 ] Prior to August 16 th , the accused changed lawyers and hired Mark Brayford, Q.C. to represent him. In a letter dated August 16 th from Mr. Brayford to the Crown, it is clear that he has received the disclosure package from previous counsel. What is not clear is what was specifically contained in this initial disclosure package. It does however appear that by the middle of September, Mr. Brayford is requesting things by way of further disclosure that eventually become the basis of his disclosure application in March, 2013. [ 57 ] Mr.

Brayford is a very accomplished criminal defence counsel, well-known for his defence of persons charged with drinking and driving offences. He was retained at a very early stage in the proceedings and received disclosure right after the accused’s first court appearance. Based on what he received he identified certain Charter issues and other issues that appear in his February 15, 2013 Notice and requested further specific pieces of disclosure relating to those issues. Ultimately these requests required judicial intervention to resolve.

It is evident from the issues he identified and the disclosure he was requesting that this was not a run of the mill drinking and driving case. It is fair to conclude that the inherent time required to get this case ready for plea would be somewhat more than a straightforward drinking and driving case. While I do not think that it should have taken ten months post-charge before a plea was first entered and a trial date set, the inherent time required to get this case ready for plea was certainly more than the norm.

Actions of the Accused and the Crown [ 58 ] Given the facts that I have heard on this application, it is convenient for me to deal with these two factors together. It is clear on the facts that the delay that occurred in this case was mainly due to the disclosure issues that developed between Crown and Defence. By mid September of 2011, Mr. Brayford had written the Crown asking for further things to be disclosed. Over the next eight months, he attended court on the accused’s matters on a monthly basis, each time adjourning the case citing these outstanding disclosure issues.

The Crown on these appearances did not take any issue with Mr. Brayford’s characterization of the reason for these adjournments. [ 59 ] On May 8, 2012, Mr. Brayford wrote the Crown a lengthy letter explaining why he felt disclosure was not complete. At the May 10 th court appearance, Mr. Brayford asked for another adjournment on the basis that he was waiting for a response to his May 8 th letter. However, the Crown took issue with any further adjournments. In their view, disclosure was complete and they were ready to set the matter for trial. The presiding Judge allowed Mr.

Brayford a short adjournment to May 16 th in the hope that the Crown would respond before that date. [ 60 ] After court on May 10 th , Crown and Defence spoke to the Court Manager and agreed on a trial date of November 5, 2012 for a one day trial. While the Court Manager reserved this date for the accused’s trial, the Court did not formally set this trial to the November 5 th date until the May 16 th court appearance. [ 61 ] Prior to setting this case for trial on May 16 th but after reserving the trial date on May 10 th , Mr.

Brayford received a letter from the Crown setting out, very succinctly, that as far as the Crown was concerned, disclosure was complete. Despite knowing this, neither counsel alerted the Case Manager or the presiding Judge on May 16 th that there may have to be a disclosure application and that if that was the case, more trial time was required than one day to deal with this case. [ 62 ] It was not until the case management on September 7, 2012 that somebody realized that one day would not be sufficient to complete the accused’s trial.

The Judge at the pre-trial conference, having made note of the issues in the case including the outstanding disclosure issue, determined that more trial time than had been reserved would be required. With the acquiescence of both parties, he directed them to immediately attend on the Case Manager and select two days for the accused’s trial. This was done, the Judge vacated the November 5 th trial date and rescheduled the case for trial to March 4 and 5, 2013.

This appears to have been the earliest two dates that the Court had and that both Crown and Defence were available. [ 63 ] Between September 7, 2012 and March 4, 2013, the Crown sent some further disclosure to the Defence however it was still not what Mr. Brayford felt he was entitled to. Eventually, on February 15, 2013, Mr. Brayford prepared and served a Constitutional Questions Act Notice on the Federal and Provincial Crowns, alleging, among other Charter violations, a violation of the accused’s

section 7 and 11(

d) Charter rights as a result of the Crown’s failure to disclose certain things to the Defence. In response, the Crown sent another disclosure package to the Defence attempting to address his concerns. Unfortunately this package was still deficient in the eyes of the Defence.

[64] As a result of this disclosure issue, the Court heard a disclosure application on March 4th and 5th and then adjourned theapplication for decision. On March 27, 2013, the Court rendered it’s decision allowing the Defence application in part and ordering theCrown to disclose some of the documents requested by the Defence, but not all. [65] The case was then adjourned to April 15th, April 25th, May 9th, May 23rd and finally June 18th to allow the Crown to comply with the Court’s order to disclose. Finally on June 18th, the case was rescheduled for trial.

This time, the case was set for three daysbeginning on October 29, 2013. [66] In R v. Pidskalny 2013 SKCA 74, Mr. Justice Caldwell, quoting from the Morin decision, said at paragraph 33, that“Generally speaking, the Crown is responsible for disclosure delays.” He also stated that: [27] While the line between an adjournment which may be characterized as “voluntary” and one which is “beyond the control of theaccused” may be a fine one, in my opinion, in that Mr.

Pidskalny’s adjournment request was predicated on disclosure concerns of whichthe Crown was well aware and which were ultimately resolved in his favour (see: R v. Pidskalny, 2011 SKQB 256, reversed, in part,2012 SKCA 28), it was not voluntary and, indeed, may be characterized as being beyond his control. Furthermore, it cannot be said thatMr. Pidskalny did nothing to prevent the resulting delay. He was diligent in his repeated requests for disclosure and, once it becameclear such disclosure would not be forthcoming before the preliminary hearing, he sought an adjournment to preempt further delay . . . . Mr.

Pidskalny’s motivation for requesting an adjournment of the preliminary hearing was to obtain better and more complete disclosurefrom the Crown, in accordance with its obligations and consisted with his interest of a prompt adjudication of this matter on its merits. On the facts, his request proved prudent because the Crown did not provide Mr.

Pidskalny with the outstanding undisputed disclosurematerials until about one week before the preliminary hearing. [28] . . . . the Crown will bear the consequences where its late or inadequate disclosure directly results in the postponement orinterruption of the preliminary hearing and thereby adds to the delay (see R. v. Thomson, at paras. 16 - 18).

On the facts of this case, Iam simply not persuaded that the judge erred in finding that the Crown’s inaction with respect to timely and adequate disclosure had ledto the adjournment of the preliminary hearing and, therefore, that that delay ought to be attributed to the Crown. I say this simplybecause I have before me the fact that a judge found Mr. Pidskalny’s disclosure concerns to have been well-founded considering thenature of the case and the nature of the requested disclosure.

Having no reason to look behind this finding, it would appear that Mr.Pidskalny’s adjournment request was prudent and possibly staved off even further delay. [67] In this case, Mr. Brayford made the Crown aware of his disclosure concerns in mid September, 2011 and continued toreiterate them almost monthly until May, 2012. I do not find that the Crown was ignoring his requests but it appears they were trying tolocate the disclosure he was requesting and/or were considering whether it was relevant and thus something they had to disclose.

Over this time period some things were being disclosed to the Defence but not all of what Mr. Brayford expected. Eventually on May 11th, theCrown in a letter, told Mr. Brayford that the disclosure he was requesting did not exist and consequently disclosure was, in their view,complete. [68] This statement by the Crown proved not to be true as on January 30, 2013, the Crown disclosed some correspondenceidentifying the officer who had involvement with the accused before his arrest for the drinking and driving charges. An officer whosenotes, according to the Crown in May, 2012, did not exist. As a result, Mr.

Brayford pursued a disclosure application for further policeofficers’ notes which he felt must exist and other more technical information regarding the breath testing instruments used on theaccused. He was successful in part. Thereafter it took the Crown just shy of three months to comply with the Court’s Order. [69] In my view, these delays are delays that were occasioned by the Crown’s refusal to provide the Defence with relevantinformation to which they were entitled and which lay in the hands of the Crown.

It should not have been difficult to find out ConstablePankratz’s name, locate him and disclose to the Defence the one page of information he had in relation to this case. It should not havebeen a question as to whether the Defence was entitled to disclosure of the Intoxilyzer and roadside screening device records for theinstruments the accused blew into on the night in question in light of the comments made by Madam Justice Deschamps in R. v. St.Onge-Lamoureux, 2012 SCC 57 , [2012] S.C.J. No. 57 (S.C.C.) (for a detailed discussion of these comments, see my earlier decisionin R. v.

Pankiw, supra, at paragraphs 43, 44 and 45). [70] Mr. Brayford made the Crown aware of his disclosure concerns at a very early stage of the proceedings and continuously

[ 70 ] Mr. Brayford made the Crown aware of his disclosure concerns at a very early stage of the proceedings and continuously thereafter. I am satisfied on the facts of the case that have been presented to me in both the disclosure application and in this application that the information that he was requesting could very well have some bearing on the defences he wished to run for the accused.

Eventually he made an application for this disclosure that ultimately was successful in part. [ 71 ] I am satisfied that the Crown must bear the burden of their refusal, reluctance or inability to locate the disclosure that Mr. Brayford was requesting and that the Court ordered produced, and as a result, a large portion of this delay must lie at their feet. Specifically, I am satisfied that but for the periods of time when Defence waived delay and the inherent time to get this case ready for plea, the time to May 16, 2012 is delay that is the Crown’s responsibility.

I am also satisfied that following my March 27 th Order that the Crown provide the Defence with certain documents, the Crown did not satisfy the Order in a timely fashion. In my view, it was not difficult to obtain the documents in question from the police. They either had to simply print them out of their approved instruments or they had to copy them from their maintenance binders or record keeping systems. I am prepared to accept that one month would have been a reasonable time to comply with the Order.

Therefore, I also find the Crown responsible for the delay from April 25 to June 18, 2013. [ 72 ] There was one further period of delay that was attributable to the actions of the parties in this case and that is the time frame from May 16, 2012 to September 7, 2012. On May 16 th the parties advised the Court that the accused’s case could be set to November 5, 2012 for a one day trial. They did this knowing full well that Defence would have to bring a disclosure application because Crown was taking the position that disclosure was now complete.

Despite knowing this, neither party advised the Court that more time for the trial would be necessary or that an earlier date for the disclosure application should be selected. They did not go back to the Case Manager’s office and request other dates to accommodate this disclosure application. It wasn’t until the mandatory case management conference in September that a Judge pointed this out to them and they agreed that one day was not enough.

Therefore, I am of the view that both Crown and Defence are equally responsible for the delay that occurred from May 16, 2012 to September 7, 2012, the date the trial was re-scheduled. As such, I shall consider this time neutral and it will not be considered as part of the unreasonable delay in this case. Limits on Institutional Resources [ 73 ] In R. v. Morin , supra, Mr. Justice Sopinka said: [47] Institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of s. 11(

b) of the Charter . It was the major source of the delay in Askov . As I have stated, this is the period that starts to run when the parties are ready for trial but the system cannot accommodate them. In Utopia this form of delay would be given zero tolerance. There, resources would be unlimited and their application would be administratively perfect so that there would be no shortage of judges or courtrooms and essential court staff would always be available. Unfortunately, this is not the world in which s. 11(

b) was either conceived or in which it operates. We live in a country with a rapidly growing population in many regions and in which resources are limited. In applying s. 11(b), account must be taken of this fact of life. . . . . . . . [55] In Askov, Cory, J, after reviewing comparative statistics suggested that a period in the range of 6 to 8 months between committal and trial would not be unreasonable. Based on the foregoing, it is appropriate for this Court to suggest a period of institutional delay of between 8 to 10 months as a guide to Provincial Courts.

With respect to institutional delay after committal for trial, I would not depart from the range of 6 to 8 months that was suggested in Askov . In such a case, this institutional delay would be in addition to the delay prior to committal. . . . [ 74 ] In this case, there are two periods during which institutional delay becomes a consideration. The first period was from September 7, 2012, the date the trial was re-scheduled, to March 14, 2013, the date the trial was re-scheduled to.

The second period of institutional delay was from June 18, 2013, the date when the continuation of the trial was set, to October 29, 2013, the date the continuation of the trial was re-scheduled to. [ 75 ] In R. v. Shepherd 2013 SKPC 12 at page 9, footnote 2, Judge Singer referenced statistics kept by Saskatoon Provincial Court showing that in the fall of 2011 the time to trial in Saskatoon Provincial Court was, on average, six months from the date a plea was

entered. No such statistics for 2012 or 2013 were placed before me on the present application. However when not enough court timewas set for the accused’s first trial, it was re-scheduled in September 2012 to March 2013, a period of six months. Then on June 18, 2013 after the Crown complied with the disclosure order, the trial was re-scheduled for a continuation to October 29th, a period of fourand one-half months. Both of these time frames are well within the guidelines that existed in Saskatoon Provincial Court in 2011 andthose set forth in Morin, supra.

I find nothing unreasonable about either of these periods of institutional delay. Other Reasons [76] The only remaining period that I have yet to deal with is the time from March 5, 2013 to March 27, 2013. This was the timethe Court took to prepare its decision on the disclosure application. In my view, this twenty-two day period deserves neutral treatment. The disclosure application was brought as a result of decisions both counsel made.

Both recognized that judicial intervention wasrequired to resolve the issue between them so both must bear the responsibility for the time it took the Court to consider and render itsdecision. I will therefore not consider this period as part of the unreasonable delay in this case. [77] In

summary, of the approximately twenty seven months of delay in this case, the Defence waived about 1 ½ months. Of theremaining twenty five and one half months, somewhere between 5 ½ to 8 months of the delay was attributable to the Crown’s failure todisclose relevant information to the Defence. The remaining time was either waived by the Defence, given neutral consideration becauseboth parties were responsible for the delay, was inherent to the case or was institutional in nature. Prejudice to the Accused [78] In R. v. Pidskalny, supra, at para. 41, Mr. Justice Caldwell said: [41] . . . .

The final step in the inquiry into the circumstances of a delay is to assess the prejudice that that delay has caused to theseinterests and, thus, to the accused. Prejudice may be actual as demonstrated through evidence, inferred from the delay itself or acombination of both (R. v. Godin, at paras. 29-38; R.v. Morin, at pages 801-03). The longer the delay, the stronger the inference ofprejudice. In addition, inferred prejudice may be enough, on a balance, to establish a breach of s. 11(b) (R. v. Godin, paras. 37-38).

TheCourt must keep it squarely in mind, however, that the prejudice in question must be a result of the delay and not of the charges(R. v. Rahey, (SCC), [1987] 1 S.C.R. 588 at page 624). (Highlights are mine.) [79] In Godin, supra, Mr. Justice Cromwell said this about prejudice: [30] Prejudice in this context is concerned with the three interests of the accused that s. 11(

b) protects: liberty, as regards to pre-trialcustody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies acriminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to leadevidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pages 801-3. [31] The question of prejudice cannot be considered separately from the length of the delay.

As Sopinka, J. wrote in Morin, at page 801,even in the absence of specific evidence of prejudice, “prejudice may be inferred from the length of the delay. The longer the delay themore likely that such an inference will be drawn.” Here, the delay exceeded the ordinary guidelines by a year or more, even though thecase was straightforward.

Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice. [80] The accused did not testify on this application but his counsel filed an affidavit sworn by him wherein he states that as a resultof these charges, he has suffered as follows: 27. THAT the charges against me of impaired driving and driving while over 80 are both embarrassing and very stressful. As a parent,and as a medical caregiver, I find this allegation to be that much more embarrassing and troublesome.

I have the additionalembarrassment and detriment that on October 6, 2011, the Saskatoon Star-Phoenix published that these charges are pending against me. Additionally, the charge was reported in other local papers and nationally as well, including a report in the Edmonton Journal. In

addition to the charge being reported in the print media the matter was covered, and continues to be covered, on an ongoing basis by various electronic media, including a variety of radio stations and Internet news sources. The allegation of impaired driving has even resulted in my profile in Wikipedia being revised to include this allegation that I have been charged with impaired driving.

The embarrassment to my family and myself, and the effects of the economic detriment to my practice, would be significant even if disclosure had been promptly provided and this matter could have proceeded to trial in a more timely fashion. Given the particular societal disapproval that we have instilled in young people in Canada in relation to drinking and driving, it is very troubling to me that my children have been affected by the humiliation of this charge.

I attribute in no small measure the embarrassment from this ongoing charge as one of the factors that caused my youngest daughter to switch schools this past semester. I have found it quite stressful knowing that this matter has been bothering both my spouse and my children. 28. THAT I have had an ongoing interest in politics throughout my life, and have been a member of Parliament for two terms. While I have been no stranger to controversy, the public disapproval of a pending impaired driving prosecution makes it impossible, in my view, to be as active in politics at this time as I would have liked. 29.

THAT in addition to the extra stress and economic prejudice that I feel flows from the delay in not having these charges against myself resolved promptly, I believe that the delay in providing disclosure has also prejudiced my ability to make full answer and defence. I believe that if the officer(

s) involved in the conversations with me during this incident had provided appropriate notes or a can-say of their evidence at the time of the incident, along with appropriate evidence from the driver of the first car that I identified, I believe I would be in a better position to advance my claim that I acted reasonably in self-defence. I believe this evidence would assist in assessing any danger that occurred as a result of my driving, as against any danger and harm that was created by the persons that were trying to invade my home. 30.

THAT by operation of law, a week after the impaired driving charge was laid, my driving privileges were automatically suspended for 90 days. This was an extremely difficult circumstance in view of my residence being located south of Saskatoon, with my clinic being located in the northeast corner of Saskatoon. The knowledge of the hardship that flowed from the 90 day suspension only exacerbates the stress of waiting for the outcome of these charges, while knowing of the mandatory license suspension.

The lack of the availability of public transportation given my rural residence poses a significant difficulty for me. [ 81 ] I have no reason to doubt the veracity of these paragraphs in the accused’s affidavit. However, it is apparent that most of the prejudice the accused is complaining about is prejudice as a result of the charges, not prejudice as a result of the delay. [ 82 ] For example, the accused states that these charges are embarrassing and stressful for him and his family because they have been reported in print media, electronic media and on the Internet.

However, in that same paragraph he says that this embarrassment would be significant even if disclosure had been promptly provided and the matter proceeded to trial in a more timely fashion. By his own admission, it is not the delay that has caused embarrassment and stress to his family, it is the fact that he has been charged that has caused this prejudice. [ 83 ] The accused speaks about the inconvenience and hardship of having his driving privileges automatically suspended for 90 days once he was charged but this also is not prejudice associated with the delay but rather with the charge.

The suspension came into effect at the time he was charged but the accused has long since finished this suspension and presumably has his licence back or can get his licence back. The fact this case has been delayed has nothing to do with his ability or inability to drive at present. [ 84 ] There is also some veiled suggestion that the accused has suffered some economic prejudice as a result of these matters being delayed. I do not know what the accused is referring to by these comments.

There is nothing before me showing that the accused’s ability to earn income has been adversely affected by these charges or that he has missed work due to the stress of these charges. On the evidence before me, I am not able to determine if the delay in having his case heard has had any negative impact on his ability to support himself and his family. [ 85 ] The accused’s suggestion that his ability to make full answer and defence has been prejudiced by the delay is also lacking merit.

The accused complained that had Constable Pankratz provided more proper information of his dealings with the accused that night, he would be in a better position to defend himself. Once again this is not prejudice flowing from the delay. The accused is alleging prejudice because the officer’s notes were not as detailed as he would like them to be or they did not say what he expected them to say. But even irrespective of this, in my disclosure decision I already determined that this information was irrelevant to the accused’s drinking and driving charges. In R. v. Pankiw , supra, at para. 84 I stated:

[84] As regards the Defence contention that the Crown should seek out and disclose evidence of the break and enter investigationincluding any searches, inquiries or reports that have been prepared by officers investigating that matter, I see no basis for this request. This is a separate investigation that has nothing to do with the drinking and driving charges the accused is facing except it was the reasonthe accused was behind the wheel on the evening in question. Who the perpetrators of that break and enter were makes no difference tothe accused’s case.

If I understand his evidence correctly, he did not know who they were yet he still went after them. In my view, theCrown has established that this information is irrelevant to the accused’s present charges and consequently I am not persuaded there hasbeen a breach of the accused’s

section 7 Charter rights. [86] The accused has not been subject to any release conditions as a result of these charges. He pressed for disclosure in this casebut there is no evidence that he pressed for a quick trial date to alleviate any prejudice he felt. The Crown proceeded summarily so theaccused was never required to attend court with his counsel. Indeed, he avoided that inconvenience and embarrassment and neverappeared in court on these matters until he had to attend the disclosure voir dire on March 4th and 5th and the application on September 26th. Other than that, he has not attended court on his case.

While I accept that some prejudice can be inferred, that the accused hassuffered some stress and embarrassment as a result of these matters continuing to carry on and that his ability to pursue his politicalaspirations are legitimately on hold until these charges are dealt with, this prejudice is minimal at best. [87] I have already determined that the length of the delay in this case was excessive. Even subtracting the one and one-halfmonths that the Defence waived, twenty-five and a half months to get a drinking and driving case onto trial is still excessive.

Havingdetermined that the time is excessive, I must ask myself if it is unreasonable. Of this time period, less than a third is attributable to theCrown as a result of the position they took on disclosure. The balance is a result of the inherent time requirements of the case, the limitson institutional resources and the joint actions of Crown and Defence. Taking into account that each time this case was set for trial, it fellwithin the guidelines set forth in Morin and that the accused has suffered very little prejudice as a result of the delay, I am not satisfiedthat the delay in this case is unreasonable.

What little prejudice to the accused there is does not outweigh society’s interest in bringingthe accused to trial. In my view, on the evidence before me, there has been no breach of the accused’s

section 11(

b) Charter rights.

b) If the accused’s

section 11(

b) Charter right has been violated, what is the appropriate remedy? [88] Given my conclusion that the accused’s

section 11(

b) Charter right to a trial within a reasonable time has not been breached inthis case, there is no need for me to consider an appropriate remedy. However, had I been persuaded that the accused’s

section 11(b)Charter right was violated, I would have stayed the charges against him. The law is clear: a stay of proceedings is the minimum remedyfor a breach of

section 11(

b) of the Charter. See R. v. Pidskalny, supra, at paragraphs 48 to 52; R. v. Walker, 2013 SKCA 95 atparagraph 43; R. v. Rahey, (SCC), [1987] 1 S.C.R. 588 (S.C.C.) at paragraph 48. CONCLUSION [89] Mr. Pankiw’s right to be tried within a reasonable time as guaranteed by

section 11(

b) of the Charter has not been violatedand as a result, his Charter application in this regard is dismissed. ______________________ D.E. Labach, J