Her Majesty the Queen - v. -, 2011 SKPC 78

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 078 Date: May 12, 2011 Information: 24376173 Location: La Ronge _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robert John Thompson Appearing: Mr. Edward B. Stephens For the Crown Mr. Lawrence J. Zatlyn, Q.C. For the Accused DECISION S.I. ROBINSON , J [ 1 ] Robert John Thompson of La Ronge, Saskatchewan stands charged in Information 24376173 with 19 counts laid pursuant to The Gas Inspection Act, 1993 and a further four counts laid pursuant to The Gas Licensing Act .

The matters are set for trial in La Ronge on May 31, 2011. However, in advance of the trial, the defence has brought an application to have the proceedings judicially stayed on the basis that, inter alia , there has been a breach of the accused’s right under

section 11(

b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time. The defence application was argued before me at La Ronge on May 6, 2011, and I then adjourned the matter for decision.

The Facts [ 2 ] The facts giving rise to the accused’s application can be found in the court endorsements attached to Information 24376173 and in an affidavit sworn by the accused on April 7, 2011, which affidavit attaches several exhibits. The chronology of events relating to the accused’s charges is as follows: May 11, 2007 : A search warrant was issued authorizing Sask Power Corporation inspectors to search a premises in Air Ronge, Saskatchewan for items relating to the operations of Fox Point Developments Corp., a company connected to the accused.

May 16, 2007 : Police and gas inspectors executed the search warrant issued on May 11, 2007, and seized documents. May 26, 2009 : Information 24376173, charging the accused with 30 counts, was sworn by one N. Fleury, a member of the Royal Canadian Mounted Police. September 12, 2009 : A Summons issued September 9, 2009, and made returnable in La Ronge Provincial Court on September 28, 2009, was served on the accused. September 28, 2009 : The accused attended Provincial Court in La Ronge, but as he was ill, an agent appeared on his behalf to adjourn his charges to October 26, 2009.

October 26, 2009 : The accused failed to attend Court and a bench warrant was issued. December 14, 2009 : The accused appeared in Provincial Court in La Ronge to advise that he had retained Mr. Zatlyn but that Mr. Zatlyn had not yet received Crown disclosure. The matter was adjourned to February 16, 2010, to allow the Crown to provide disclosure. February 16, 2010 : The matter was adjourned at the request of the accused to March 22, 2010. March 22, 2010 : The matter was adjourned at the request of the accused to April 6, 2010, peremptory for plea.

April 6, 2010 : The matter was adjourned to May 3, 2010, to allow the Crown to provide further disclosure to defence. (The court endorsement showing the defence requesting the adjournment is incorrect.) May 3, 2010 : The matter was adjourned at the request of defence to June 25, 2010, to allow defence to bring an application to quash all or parts of Information 24376173. June 25, 2010 : I heard the defence’s application respecting the validity of Information 24376173 and then adjourned the application for decision to August 6, 2010.

August 6, 2010 : In response to the defence application heard June 25, 2010, I entered judicial stays on seven counts that were identical to other counts in the Information. I also ordered that the Crown furnish the defence with particulars respecting another nine counts in the Information. The matter was then adjourned to September 17, 2010, to allow the Crown to furnish the particulars ordered and to have the accused enter pleas. September 17, 2010 : The matter was adjourned at the request of defence to October 8, 2010, for further argument respecting particulars.

October 8, 2010 : The matter was further adjourned at the request of defence to October 15, 2010, to be spoken to. October 15, 2010 : Mr. Stephens appeared before me as agent for Mr. Zatlyn, Q.C., and with the accused present, to enter not guilty pleas to the counts in Information 24376173. Mr. Stephens indicated that the trial would require three days. I adjourned the matter for trial to May 31, 2011, the earliest date the Court had available for a three-day trial.

April 8, 2011 : The Court received the defence’s original Notice of Motion dated April 7, 2011, setting out the defence request for relief under the Charter .

Section 11(

b) of the Charter [ 3 ]

Section 11(

b) of the Charter guarantees that any person charged with an offence has the right to be tried within a reasonable time. This right is not limited to criminal charges laid pursuant to the Criminal Code or similar criminal statutes. The Supreme Court of

Canada in R. v. CIP Inc., (SCC), [1992] 1 S.C.R. 843, at paragraph 44, has held that the right extends to regulatoryoffences, such as the ones before me, with full vigour. [4] In R. v. Morin, (SCC), [1992] 1 S.C.R. 771, at paragraph 31, Sopinka J., writing for the majority, set out thefactors a Court should look at in determining whether there has been a breach of the right to a trial within a reasonable time: 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, supra, "[i]t is axiomatic that somedelay is inevitable. The question is, at what point does the delay become unreasonable?" (p. 1131). While the Court has at timesindicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long 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 delay; and 4. prejudice to the accused. [5] It is well established that pre-charge delay is not ordinarily to be considered in deciding if there has been a breach of anaccused’s section11(

b) right. The time to be considered is the time from when an Information is sworn to the time when the charges goto trial. Although authorities executed a search warrant in this matter on May 16, 2007, the Information charging the accused was notsworn until May 26, 2009. I am therefore of the view that the delay to trial should be calculated as that period between May 26, 2009and May 31, 2011, the date set for the accused’s trial. This period of just over 24 months is sufficient to warrant an inquiry to determinewhether the delay has infringed the accused’s

section 11(

b) right. Waiver [6] There was no specific point in time in these proceedings where the accused, either directly or through his counsel, expresslyindicated that he was waiving delay. Arguably, in requesting certain adjournments, the accused could be said to be waiving anyresulting delay caused by the adjournments. However, rather than ruling on whether the accused waived any particular delay, I think itis more useful to look at his actions and then simply decide if those actions should cause me to attribute any delay to him rather than tothe Crown.

Reasons for Delay: Trial Time Requirements [7] There is nothing before me to suggest that the charges against the accused are complex. They are indeed numerous, but theCrown has not suggested that any particular charge is unduly complicated. Nor do the charges themselves suggest this. For example, thefirst count in Information 24376173 charges that the accused between December 1, 2006 and April 1, 2007, commenced work on theproperty of Laurie and Walter Smith [sic] without a permit issued by Saskatchewan Power Corporation to authorize the work, contrary tosection 12 of The Gas Inspection Act, 1993.

One might guess that the Crown would simply lead evidence to show that a permit wasneeded to commence certain work and that the accused started the work without the required permit. The other charges in theInformation appear to be of a similar nature. There is nothing before me to indicate that the Crown required an extended delay to arrangefor expert witnesses, to examine possible trial exhibits or to marshal some other aspect of its case.

[ 8 ] It is true that the number of charges against the accused increased the time needed for his trial. On October 15, 2010, Mr. Stephens for the Crown indicated that he anticipated the trial of this matter would take three days, and I accepted this as a reasonable estimate. Mr. Zatlyn for the accused points out that his client’s 23 charges arise from eight distinct situations. He suggests that the Crown could have divided the charges against his client into more manageable units to avoid the need for a single, lengthy trial.

I do not think, however, that the Crown can be faulted for putting the accused’s charges into one Information. A single trial has the potential to simplify matters greatly without prejudice to the accused. I am of the view that while the charges against the accused do not appear to be complex, the sheer number of charges made it necessary to find an unusually large block of trial time for the accused’s trial. Looked at in isolation, the three days set aside for the accused’s trial hardly affect trial delay at all.

However, scheduling those days in a block did cause a significant delay that might, at least in part, be considered one of the present case’s “inherent time requirements”. Reasons for Delay: Actions of the Accused [ 9 ] I am of the view that certain actions by the accused have contributed to the 24-month delay in the case before me. When the accused first appeared in Court on September 28, 2009, he had an agent adjourn his matter to October 26, 2009. On the October 26 date, he failed to attend, and a warrant issued for his arrest. He was then back in Court on December 14, 2009, to advise that he had retained Mr.

Zatlyn and to adjourn his matter to February 16, 2010, to allow the Crown to provide disclosure. The material before me indicates that Mr. Zatlyn made a formal request for disclosure to the Crown on January 25, 2010. It appears that Mr. Stephens responded to Mr. Zatlyn in a timely fashion with Crown disclosure being sent out to Mr. Zatlyn under a covering letter dated January 29, 2010. I think it fair to attribute the delay from September 28, 2009 to January 29, 2010—a total of four months—to the accused. [ 10 ] After Mr. Zatlyn received the Crown disclosure package from Mr.

Stephens, he became aware that the package was not complete. As indicated by a letter dated March 31, 2010, that Mr. Zatlyn wrote to the Crown, the package did not include any affidavit supporting the application to obtain the search warrant issued on May 11, 2007, or any report of the items seized in the search of May 16, 2007. Mr. Stephens responded to Mr. Zatlyn by sending a letter dated April 1, 2010, which acknowledged the shortfall in disclosure and said that Mr. Stephens would seek an adjournment on April 6, 2010, to accommodate Mr.

Zatlyn’s request for further disclosure. [ 11 ] There is a delay of two months between Mr. Zatlyn’s letter of January 29, 2010, and his follow-up letter of March 31, 2010. It might be said that Mr. Zatlyn should have discovered the shortfall in disclosure sooner than he did. At the same time, it might be said that Mr. Stephens should also have discovered the shortfall without prompting from Mr. Zatlyn since, as Mr. Stephens concedes, the missing disclosure was relevant. It is my view that the 2-month delay between January 29 and March 31 should be attributed in equal share between the accused and the Crown.

I therefore attribute half of the 2-month delay to the accused. [ 12 ] I am unable to attribute further delay to the accused. Accordingly, my view is that he is responsible for five months of the delay that has elapsed. Reasons for Delay: Actions of the Crown [ 13 ] The first delay in this case ran from when Information 24376173 was sworn on May 26, 2009, to when the accused was first required to attend Court on September 28, 2009.

This delay of four months was solely within the control of the Crown and must be attributed to the Crown. [ 14 ] As already indicated, I am of the view that the Crown is responsible for one half, being one month, of the delay that occurred between January 29, 2010 and March 31, 2010. [ 15 ] When Mr. Zatlyn wrote to the Crown on March 31, 2010, he requested further disclosure from the Crown. He also took the position that 16 of the charges in Information 24376173 were deficient in form. The Crown did not concede this point, and a defence application was brought before me to have the Information quashed or stayed.

The defence application was heard on June 25, 2010, and I handed down my decision in the matter on August 26, 2010. In my decision, I ruled that seven of the 30 charges the accused was facing infringed the accused’s rights under

section 7 and

section 11(

a) of the Charter and further failed to comply with subsection 581(3) of the Criminal Code . I judicially stayed these seven counts. With respect to nine other counts, I found that the counts did not comply with subsection 581(3) of the Criminal Code but that this deficiency could be remedied by the Crown providing further particulars. I then adjourned the case to September 17, 2010, to have the Crown comply with my order respecting particulars and to have the accused

enter pleas. [ 16 ] The delay between March 31, 2010 and September 17, 2010, adding up to five and a half months, resulted from the accused’s application respecting deficiencies in the charges against him. Through his counsel, he was diligent in pursuing his application. The delay might be said to have been caused by the Crown’s opposition to the accused’s application. As the accused was substantially successful in his application, it would not be fair to penalize him for the position he took.

Accordingly, it is my view that the delay should be attributed to the Crown. [ 17 ] There was also a 1-month delay between September 17, 2010 and October 15, 2011, resulting from a defence adjournment request. The adjournment was made in part to allow the defence to present argument regarding the sufficiency of particulars supplied regarding the counts in Information 24376173. Since this argument was not presented before me, I am unable to comment on its merit. Ordinarily, I would go on to attribute the delay from September 17 to October 15 to the accused. However, the situation is more complicated.

As it turns out, as of October 15, the date when the accused entered his pleas of not guilty, the Crown had not yet fully provided the defence with all relevant disclosure. In particular, the defence had not yet been provided with a list of what had been seized in the search of May 16, 2007. As the Crown had not yet met its disclosure obligation, I am not prepared to attribute the delay from September 17 to October 15 to the accused. Rather, that delay is attributed to the Crown. [ 18 ] The total delay that I would attribute to the Crown adds up to 11 ½ months.

Reasons for Delay: Limits on Institutional Resources [ 19 ] Saskatchewan’s Provincial Court handles a high volume of cases. The vast majority of these cases are handled without the need for a trial. However, a significant number of cases are set down for trial, and trial time must be found in the local court schedule. At the La Ronge Court Centre, where I share trial responsibilities with my colleague Judge Daunt, there is an effort to have a matter set down for trial within three to four months of a not guilty plea being entered. This effort too often results in trial days being double booked or triple booked.

On some days, Crown prosecutors, Legal Aid lawyers and court staff have to deal with major work pressures. Nonetheless, when scheduled trials are not lengthy, the system works reasonably well. [ 20 ] Scheduling trials in La Ronge becomes much more difficult when a trial is expected to take two or more days. Because I and Judge Daunt are responsible for court duties in La Ronge and also eight out-of-town court locations (seven of which are served by air), it is difficult to find two consecutive court days for any given court point.

When a free day is available, it is often used to make up for a day cancelled due to bad flying weather at one of our out-of-town court points. The availability of court room space is also a limiting factor. The La Ronge Court Centre has a single court room which is often in use for regular docket court, criminal trials or family court.

A two or three-day trial quite often requires the procurement of alternate court room space which may or may not be available. [ 21 ] In the present case, the accused entered not guilty pleas to his charges on October 15, 2010, and I then scheduled his trial to commence on May 31, 2011, and continue as needed over the following two days. The adjournment for trial adds up to seven and a half months. This is a lengthy delay and certainly on the outside edge of what could be considered reasonable for a trial concerning apparently straightforward provincial offences.

However, absent any other aggravating factors, I am of the view that the seven and a half month delay between pleas and trial in this case—due in large part to the Court’s limited ability to accommodate a three-day trial— would be permissible. Prejudice to the Accused [ 22 ] In my view, the most significant factor to be considered in the case before me is that of prejudice to the accused. The Supreme Court of Canada has made it clear that prejudice to an accused may be inferred from prolonged delay.

The longer the delay, the more likely that an inference of prejudice will be drawn (see Morin , supra at paragraph 61 ). In the case before me, the delay that can be attributed to the Crown and the institutional delay arising from the scheduling of the accused’s trial total 19 months. It is reasonable to infer that this lengthy delay has caused the accused some prejudice from the stresses that naturally flow from one being charged with offences.

[ 23 ] Quite apart from any inferred prejudice, the accused has shown in his affidavit sworn April 7, 2011, that the delay in having his charges resolved has caused him considerable financial prejudice. Although he has maintained his journeyman tickets that allow him to work as a plumber, gas fitter and pipe fitter (paragraph 3 of the accused’s affidavit), it is clear that he has seen a dramatic drop in income from his work. In 2007, his Fox Point company had a gross income of $1,973,176.00 and issued T-4 slips for over 100 employees (paragraphs 9 and 12 of the accused’s affidavit).

That company is no longer in business, and in 2010, the gross income for the accused’s La Ronge Plumbing (a company that the accused revived when his Fox Point company went out of business) was $30,500.00 (paragraph 11 of the accused’s affidavit).

The accused attributes this drop in income to the deterioration of his business and personal reputation caused by the delay in having his current charges resolved (paragraphs 18 to 20 of the accused’s affidavit). [ 24 ] The defence argues that in the present La Ronge business environment, the accused should be seeing an increase in his income from plumbing, gas fitting and pipe fitting because there is extra available.

In this regard, I can take judicial notice of the fact that in 2007 the Saskatchewan Provincial Government announced that it would be bringing natural gas service to La Ronge and its surrounding communities. Since that announcement, a natural gas pipeline has been built to La Ronge, and work has been ongoing to connect homes and businesses in the La Ronge area to natural gas.

With homes and businesses converting to natural gas, there is indeed an unprecedented amount of work available in the La Ronge area for persons with the accused’s job skills. [ 25 ] The Crown has not tendered any evidence to show that the accused’s failure to thrive in La Ronge’s current work environment can be attributed to causes other than the negative impression created by his being in Court on charges related to his work. Accordingly, I accept that the accused has suffered damage to his reputation and a substantial loss of income as a result of the charges against him remaining unresolved.

This prejudice goes well beyond what might ordinarily be inferred by the Court.

Conclusion [ 26 ] As set out above, I have determined that 19 months of the 24-month delay elapsing between when Information 24376173 was sworn on May 26, 2009, and the scheduled trial date of May 31, 2011, can be attributed to either the actions of the Crown or “institutional” delay resulting from the scheduling of the accused’s trial after not guilty pleas were entered. [ 27 ] In Morin , supra , Sopinka J., writing for a majority of the court, suggested that eight to 10 months of institutional delay might be acceptable for a Provincial Court matter.

Sopinka J. did not comment specifically as to whether some additional delay attributed to the Crown might also be acceptable. (There was little or no delay that could be attributed to the Crown in the Morin case.) However, it is reasonable to assume that where a case’s institutional delay approaches the eight to 10 month guideline, there will be very little room for additional delay attributed to the Crown. [ 28 ] In the present case, I have determined that the delay attributed to the Crown adds up to 11 ½ months. This delay is problematic and, even by itself, might infringe the accused’s

section 11 (

b) rights. When it is added to an institutional delay of seven and a half months, a permissible but fairly lengthy delay, there is a combined total of 19 months delay. The evidence before me establishes that, over this period of time, the accused suffered significant financial losses that can be linked to his outstanding charges. When I consider the length of the delay and the resulting prejudice to the accused, I have no hesitation in concluding that the accused’s

section 11 (

b) rights have been infringed. [ 29 ] Having found that the accused’s right to be tried within a reasonable time has been infringed, it is necessary to determine whether the accused should have a remedy. I am of the view that a remedy is in order and that the proper remedy should be a judicial stay of proceedings. Pursuant to subsection 24(1) of the Charter , there will be a stay of proceedings entered on all charges still outstanding in Information 24376173. [ 30 ] I have decided this case on the basis that the accused’s rights under

section 11(

b) of the Charter have been breached. I therefore need not decide the other issues raised by the defence, most notably that the accused’s rights under

section 7 and

section 11(

d) of the Charter have been breached. [ 31 ] I wish to thank counsel for their submissions in this matter.

__________________________________________ S.I. Robinson, J