Her Majesty the Queen - v. -, 2015 SKPC 70

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 070 Date: April 29, 2015 Information: 24269280 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joshua T. Papilion Appearing: Gary Parker For the Crown Ron Piche For the Accused DECISION ON APPLICATION FOR STAY OF PROCEEDINGS B.G. MORGAN, J Introduction [1] The defendant is charged with what is commonly referred to as impaired driving and “over .08”, based on the events ofOctober 7, 2006, the Information being sworn the next day.

Due to a number of reasons, his re-trial, albeit the fifth scheduled trial date,is set for June 3, 2015, 8 years and 8 months from the alleged offence date, triggering this Charter application alleging unreasonabledelay. That time is 104 months, clearly enough time to attract scrutiny, that being a threshold issue (see R v Morin, (SCC), [1992] 1 SCR 771).

[ 2 ] I will start by laying out the chronology, using that to summarize generally why there were five dates set, and then rule on the application. This being an alleged Charter breach, the applicant bears the burden of establishing his case on a balance of probabilities.

Chronology [ 3 ] The time lines are as follows: October 7, 2006: Defendant charged; October 8, 2006: Information sworn; November 1, 2006: First appearance; December 4, 2006: Date set for plea; defendant enters not guilty plea and trial date (1) of June 5, 2007, is set; May 28, 2007: Matter called forward as defendant had not been in touch with counsel; endorsement shows “Defence waives delay, accused guarantees he will proceed with or without counsel” on the next trial date of December 19, 2007 (2); December 19, 2007: Trial “adjourned due to lack of sufficient court time to commence and complete trial; adjourned”; January 2, 2008: Defence requests adjournment; January 10, 2008: New trial date set for August 28, 2008 (3); August 27, 2008: Matter brought forward; endorsement reads “trial date of August 28, 2008 at 9:30 a.m. in #6 is vacated; *Defence waives delay”; new date set of May 21, 2009 (4); May 21, 2009: Trial held; May 26, 2009: Court grants Charter relief (under s. 24(2)) defendant acquitted.

This set off a chain of appeals as follows: June 11, 2009: The Crown files Notice of Appeal; October 15, 2010: Appeal held in

summary conviction appeal court;

December 22, 2010:

Summary conviction court allows Crown appeal; January 18, 2011: Matter in Saskatoon Provincial Court to set a new date; court is advised that the defendant intends to appeal to the Court of Appeal; January 24, 2011: Notice of Appeal filed at Court of Appeal; January 26, 2011: Matter in Saskatoon Provincial Court, defendant is not present, matter adjourned; February 3, 2011: Matter in Saskatoon Provincial Court, Defence counsel appears as agent and indicates he is awaiting instructions from client on appeal; March 8, 2011: Matter in Saskatoon Provincial Court, defendant not present; March 21, 2011: Matter again in court, defendant again not present, bench warrant held to March 22, 2011; March 22, 2011: Matter in Saskatoon Provincial Court, now confirmed defendant will proceed with his appeal; November 4, 2013: Hearing scheduled for Court of Appeal; November 20, 2013: Matter set for argument in Court of Appeal; January 25, 2014: Matter argued in Court of Appeal; April 24, 2014: Appeal dismissed (thus, there will be a fifth trial date set); July 20, 2014: Defendant re-served with Summons for re-trial; July 30, 2014: Defendant appears, indicates he is seeking counsel; August 22, 2014: Defendant not present on adjourned date, warrant issued; September 24, 2014: Warrant cancelled, defendant appears through counsel, trial date set for June 3, 2015. [ 4 ] Starting with the time to the first trial, the time from the alleged offence date to the first trial is approximately 8 months, of which 2 months would be for getting disclosure, making a plea, with a six month wait for trial. [ 5 ] The time to the second trial was approximately 6.5 months, six months of which the Defence waived delay.

[6] The time to the third trial was approximately 8.5 months, all of which could be attributed to the fact that there simply wasn’tenough time to start and conclude the trial. [7] The time to the fourth trial was approximately 9 months, which the Defence has waived delay on. [8] The time to the fifth trial will be approximately 72 months, 59 months of which the matter was in the appeal courts. To bemore precise, roughly three months of that was the time between the Queen’s Bench

Summary Conviction Appeal Court decision toremit the matter to Provincial Court for a re-trial, and the defendant deciding whether or not he would proceed with an appeal. That is,although he filed a Notice of Appeal to the Court of Appeal on January 24, 2011, it would appear he did that to keep his options open, ashe did not confirm that he would be proceeding until March 22, 2011, hence the reason for the intervening appearances in ProvincialCourt.

I could have easily attributed that to actions of the accused, but the 59 month period is being severed out as time this matter couldnot proceed in Provincial Court due to the two appeals. [9] That leaves roughly 13 months between the date that the Court of Appeal dismissed the defendant’s appeal, and theupcoming date for re-trial.

Roughly 3 months of that was used in re-issuing process, 2 months by the defendant in arranging for counsel,3 months from the plea to the first available trial date of January 5, 2015, and a further 5 months to the actual trial date, all of the delayfor this period being waived by the Defence as his counsel was unavailable. [10] All of this totals104 months, allowing for some rounding errors. [11] The “Morin factors” have been considered in a number of cases, and there is no need to repeat them here.

The guidingprinciple is that the “...assessment is not a mechanical one, but must effectively balance all of the relevant factors and principles toachieve a just result” (see R v Campeau, 2013 SKQB 430, para 20; the case reviews the law in detail). [12] I note, again rounding numbers: 1. The length of the delay - 104 months; 2. Waiver of any time periods - 20 months; 3. The reasons for the delay, including

a) inherent time requirements of the case - 15 months;

b) actions of the accused - 2 months (not counting the 3 months between appeals);

c) actions of the Crown - none, although Mr. Parker did state that he asked for an adjournment during the Queen’s Bench appeal;

d) limits on institutional resources - 8 months, being the period that the trial could not proceed due to lack of court time;

e) other reasons for the delay (appeals) - 59 months. [13] One could argue specifically how much time could be attributed to what category, but that makes no particular difference, inmy view, in this case. The main issue is what to do about the appeal period, as all the other time periods do not seem to me to be out ofthe ordinary, when one considers all of the circumstances leading to the four trial dates prior to the launching of the two appeals,although I acknowledge the loss of one trial date due to insufficient court time.

Further, I see no reason for concern with the time fromthe end of the appeals to the fifth trial date. [14] Mr. Piché argues, on the basis of the dissent in R v Potvin, (SCC), among other things, it would be open forme to conclude that the fairness of the trial is impacted due to the length of time; how can the defendant adequately defend himself afterthis length of time?

[ 15 ] Further, there is a question as to whether or not the delay clock started running again, if you will, after the Court of Appeal dismissed the defendant’s appeal. [ 16 ] Dealing with that first issue, the recent case of R v Barros , 2014 ABCA 367 , completely disposes of any doubt there may have been respecting what to do with the time when a matter is under appeal, at para. 50: In our view, Potvin stands for the proposition that all appellate delay, including appeals to the Supreme Court of Canada, is excluded from the s. 11(

b) analysis. [ 17 ] That case is remarkably similar to the case at hand, as it involved an initial acquittal, a successful Crown appeal of that to the Court of Appeal, a further appeal by Mr. Barros to the Supreme Court of Canada, with everything sent back to the trial court (Queen’s Bench) for a new trial. The time from the charge to the decision of the Supreme Court was almost 6.5 years, and a chambers judge granted a stay 1.5 years later. Over 1.5 years after that, the Court of Appeal set things back for a new trial. This is a period of some 9.5 years, and counting, to whenever Mr.

Barros will have his re-trial. This case, incidentally, was not on the reporting services at the time this application was argued. [ 18 ] Dealing with the second argument, I see no delay period from the ruling of the Court of Appeal to the fifth trial date, even if I accepted that argument. As all appellate delay is completely excluded from the s. 11(

b) analysis, what I am then left with, in rough numbers, is a roughly 45 month period, of which, considering five trial dates are involved, about 20 months has been waived by the Defence, and 15 months can be attributed to inherent time requirements and judicial resources, etc. There have been five trials set; this will inevitably lead to five time periods to find an available time slot for the trial.

The 8.5 months necessitated by the Court not being able to proceed on the third trial date, due to the fact they simply could not get it done that day, is an unfortunate reality, but not one that will support a delay argument in these circumstances. [ 19 ] In looking at the question of prejudice to the defendant, I cannot see anything that is beyond what anyone would go through waiting some nine years for resolution of a criminal matter. He did choose to appeal, as is his right, but that takes time. Everyone’s memory will be impacted by the passage of time, although the police will have notes.

I assume, based on the appeals, that a transcript of the original trial exists, if the defendant wished to review it. [ 20 ] In my view, everyone will be equally disadvantaged by dealing with a trial some 8 years and 8 months after the alleged offence date. There is no question that this is a substantial period of time, but the passage of time itself is not a ground to grant the remedy. In the circumstances, and in balancing the competing interests at stake, I do not find the delay unreasonable.

The application for a stay of proceedings based on any alleged Charter breach is dismissed. ______________________________ B.G. Morgan, J