Her Majesty the Queen - v. -, 2013 SKPC 93

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 093 Date: June 3, 2013 Information: 46420472 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Alicia Ermine Appearing: Barrie Miller For the Crown Michael Owens For the Accused DECISION ON UNREASONABLE DELAY APPLICATION D.E.

LABACH , J [ 1 ] The accused, Alicia Ermine, is charged that on April 15, 2011, she had possession of cannabis marijuana for the purpose of trafficking contrary to section 5(2) and possession of hydromorphone contrary to section 4(1) of The Controlled Drugs and Substances Act. The accused pled not guilty to these offences and twice the matters were set for trial. At the outset of the second trial date, Defence counsel made an application in which he alleged a breach of the accused’s

section 11(

b) Charter right to have a trial within a reasonable time and requested a judicial stay of proceedings pursuant to section 24(1) of the Charter . [ 2 ] The purpose of

section 11(

b) of the Charter is twofold. First, it protects an individual’s right to security of the person, their

right to liberty and their right to a fair trial. Secondly, it protects society’s interest in seeing that the least fortunate who are accused ofcrimes are treated humanely and fairly. These interests, however, must be balanced with the interests of society in law enforcement. That is, society has an interest that those who break the law be brought to trial and dealt with according to law. Moreover, as theseriousness of the offence increases so does society’s demand that the accused’s case be determined on its merits. See R. v. Morin, (SCC), [1992] 1 S.C.R. 771 (S.C.C.) at paragraphs 26 to 30. [3] In R. v.

Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3 (S.C.C.) Mr. Justice Cromwell, speaking for a unanimous SupremeCourt, cautioned trial judges against microscopic examination of delay. If there has been inordinate delay in getting a matter on to trial,he directed judges to look at the reasons for the delay in light of the purpose of

section 11(

b) and society’s interest in law enforcement todetermine if it has taken too long to get a matter on to trial. At paragraph 18, he said: . . . . Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived bythe defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that

section 11(b)seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questionsconcerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in thisdetailed analysis. As Sopinka, J. noted in Morin at page 787, ‘the general approach . . . . is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which

section 11(

b) is designed to protect againstfactors which either inevitably lead to delay or are otherwise the cause of delay.’ [4] Our court system is not a perfect system. There are delays in bringing any matter on to trial. In order to determine if thedelay in bringing the accused’s matter on to trial was unreasonable, it is necessary to review what has occurred since the date of thealleged incident. HISTORY OF PROCEEDINGS [5] On April 15, 2011 Mr. Shane Bradley, the Vice Principal of Nutana Collegiate purportedly caught the accused in possessionof some illegal drugs.

He seized the contraband and expelled her from school. He then prepared an incident report and contacted thepolice. [6] On April 18, 2011, Constable Matthew Maloney attended Nutana Collegiate to speak to Vice Principal Bradley about thisincident. He obtained the incident report and the drugs and left a witness statement for the Vice Principal to complete. The schooladvised the officer that according to their records, the accused was living at 1623 Kilburn Avenue. He attended there to arrest her, however nobody was home.

He did not go back to this residence nor did he do any further investigation to determine the whereabouts ofthe accused. [7] On April 26, 2011, Constable Maloney requested a public interest warrant for the arrest of the accused on drug charges. Thewarrant was issued on April 29, 2011. The accused was not arrested on this warrant until October 11, 2011. On that date, at 5:15 a.m.,police officers observed a vehicle which appeared to be speeding. As they began following the vehicle it seemed to be trying to evadethem. Eventually they were able to pull the vehicle over.

When officers attended on the vehicle, the accused, who was driving, gavethem a false name. Eventually they were able to determine the accused’s proper name and arrested her on the outstanding warrant. [8] The accused was processed at the Saskatoon Police station and charged with obstructing an officer by providing a falsename and the two drug charges referenced in the warrant. She was taken to Court later that afternoon. The provincial Crown proceededsummarily on the obstruction charge.

The federal Crown proceeded by indictment on the charge of possession for the purpose oftrafficking and summarily on the simple possession charge. The accused was released on an undertaking with a number of conditions. Her matter was adjourned to October 26th to allow her to obtain legal counsel. [9] On October 26, 2011, Mr. Owens appeared in court on the accused’s matters. She was not present. He advised the Courtthat he had just received disclosure from the federal Crown and as such, required an adjournment. The accused’s matters were adjournedto November 16, 2011 for plea.

A bench warrant was ordered and agreed to be held to the accused’s next court appearance pending thefiling of a designation of counsel or the accused’s personal attendance.

[ 10 ] On November 16, 2011, Mr. Owens was present however the accused was not. Both the federal and provincial Crowns agreed to waive her attendance and the bench warrant being held from October 26th was cancelled. The provincial Crown agreed to refer the obstruction charge to mediation but the federal Crown was not prepared to do the same with the drug charges. Mr. Owens advised that he was waiting for some further disclosure from the federal Crown and he felt that all matters could be adjourned to December 19, 2011. [ 11 ] On December 19th, the accused and Mr. Owens were not in court. Mr.

Owens sent an agent to adjourn all of the accused’s matters to January 9, 2012. Both Crowns agreed to this adjourned date. As there was still no designation of counsel on the court file, a bench warrant was ordered and held until this next court date. [ 12 ] On January 9, 2012, Mr. Owens appeared for the accused and advised that he wanted to set the case off for a couple of weeks so that he could meet with the accused and get further instructions. When asked by the Court what date he would like matters adjourned to, he said February 8th. The Crowns consented to the adjournment.

The bench warrant continued to be held as the accused was again not present. [ 13 ] On February 8, 2012, Mr. Owens attended court and in the absence of the accused entered not guilty pleas to the drug charges on Information 46420472. The trial was set to October 9, 2012 and a case management to June 15, 2012. The trial sheet filed at the time indicated that the trial was expected to take a full day, that there would be a

section 8 Charter application and that disclosure was ongoing. It also indicated that an earlier trial date of June 21, 2012 was offered and that delay was not in issue at this time. The obstruction charge was still in the mediation process and was adjourned to a March court date to see if it was finally successfully completed. [ 14 ] At the case management conference on June 15th the federal Crown advised that all disclosure had been provided to the Defence except for an expert’s report regarding the issue of whether the possession of the marijuana was for trafficking purposes.

The Crown was still waiting for this report to be prepared. Defence indicated that they would be alleging that the search and seizure that occurred in this case was a violation of the accused’s

section 8 Charter right. The Judge’s notes from the case management also indicate that there may be a possible issue with the voluntariness of statements the accused made and whether the Vice Principal was a person in a position of authority. [ 15 ] On June 19, 2012, Mr. Owens sent a letter to the federal Crown formally advising of his

section 8 Charter application and that if successful, he would be seeking exclusion of evidence under section 24(2) of the Charter . In this letter he also asked the Crown to advise if they would be attempting to enter any of the accused’s statements to people in authority as evidence. He indicated that if they were so inclined, it was his view that there was a breach of his client’s

section 10 Charter rights and he would be asking for exclusion of the statements. [ 16 ] On October 9, 2012 the Crown attended Saskatoon Provincial Court ready to proceed to trial. Defence counsel and the accused were present as well. Before the trial could begin, the federal Crown raised an issue with the sufficiency of the Charter notice provided by the Defence. In their view, the Notice lacked sufficient particulars and did not conform to the Provincial Court practice directive regarding Charter applications.

At the same time, Defence took issue with the Crown’s intention to introduce statements made by the accused to the Vice Principal and any teachers at the school. His argument stemmed from the fact that the Crown had not given him 30 days notice of their intention to introduce these statements which the Crown had agreed to do at the June 2012 case management conference. After hearing counsels’ comments on these points, the Trial Judge determined that the case should be adjourned because it would not be procedurally appropriate to proceed with the trial.

In his view, both counsel needed to ensure that there was adequate and timely notice of their respective applications and the only way to achieve that would be to adjourn to another date. [ 17 ] Both counsel immediately attended on the case manager and a new trial date was selected. The trial request form indicates that two days were now required for this trial, that there would be applications regarding sections 8 and 10 Charter violations, that an earlier trial date of March 14, 2013 was offered but not taken and finally that delay was not in issue at this time. The new trial dates were May 15 and June 3, 2013.

Another case management was set for March 8, 2013. [ 18 ] On November 27, 2012, the accused was arrested on some new charges. She appeared in court in custody. Her previous undertaking was cancelled but she was re-released on a new undertaking encompassing all of her outstanding informations. Her new charges were set to the March 8th case management conference to be spoken to.

[ 19 ] At the case management conference on March 8th, the sections 8 and 10 Charter breaches were discussed in detail. At the end of this discussion, Defence counsel raised, for the first time, the possibility that he would be alleging that the accused’s right to have a trial within a reasonable time as guaranteed by

section 11(

b) of the Charter was breached. The Judge presiding over the conference wanted to know if this issue had been raised on October 9th in front of the Trial Judge. Since neither counsel could recall if it had, the judge ordered an expedited transcript of the October 9th proceedings and adjourned the case management to April 4th. [ 20 ] A review of the transcript from the October 9, 2012 trial date revealed that the issue of delay was not raised.

When the case management conference re-convened on April 4th, the Judge gave Defence counsel some poignant directions as to what he had to do if he wanted to pursue such an application. [ 21 ] On April 11, 2013, Mr. Owens prepared a notice pursuant to The Constitutional Questions Act alleging unreasonable delay in getting the accused’s matter on to trial and requesting a section 24(1) Charter remedy and served it on both the federal and provincial Crowns. [ 22 ] On May 13, 2013, Mr.

Owens filed his Constitutional Questions Act notice with the Court along with proof of service on both Crown offices. [ 23 ] The trial began on May 15, 2013. At the outset of trial, there was considerable discussion as to how the trial should proceed. I eventually determined that Defence should proceed with his

section 11(

b) Charter application first. I heard evidence on the application on May 15th, closing argument on the application on May 22nd and I adjourned my decision to June 3, 2013. ANALYSIS [ 24 ] In R. v. Morin , supra , the Supreme Court of Canada set forth the factors that should be considered when a Court is asked to answer the question, “How long is too long?” At paragraph 31 Mr. Justice Sopinka listed these factors 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;

e) other reasons for delay; 4. Prejudice to the accused. [ 25 ] The Court must first determine if the time from the date the Information is sworn to the end of trial raises an issue as to reasonableness. If it does raise an issue, the Court must examine the length of the delay in light of the other factors to determine whether

the delay is unreasonable. If it does not raise an issue then no balancing of factors is required unless the accused is able to show that thedelay is unreasonable as a result of such other factors as prejudice. Pre-charge delay may be considered in the overall determination as towhether post-charge delay is unreasonable however it is not counted in determining the length of the delay. See R. v. Morin, supra, atparagraphs 35 and 36. [26] In R. v.

Smith, (SCC), [1989] 2 S.C.R. 1120 at paragraph 28, the Supreme Court unanimously agreed that it ispreferable for trial courts to adjudicate delay applications on the facts of each case without resort as to who bears the burden of proof. See also R. v. Morin, supra, at paragraph 33; R. v. Tilden, [2009] S.J. No. 741 (Sask. Q.B.) at paragraph 19. [27] Bearing in mind these pronouncements from the Supreme Court of Canada, the total delay that has occurred in the accused’scase is just a few days over 25 months. The Information charging the accused with the drug offences was sworn April 29, 2011.

Theaccused’s first appearance on these charges was October 11, 2011. The federal Crown proceeded by indictment on one charge andsummarily on the other. The first trial date set for these charges was October 9, 2012 however the trial did not proceed on that date. The matter was re-scheduled for trial to May 15 and June 3, 2013. A delay of this length is out of the ordinary and raises an issue as toreasonableness. [28] In this case, the accused’s Information was sworn on April 29, 2011, but the accused was not arrested and charged with thesematters until October 11, 2011.

Constable Maloney testified that when he attended Nutana Collegiate and spoke to the Vice Principal, heobtained an address of 1623 Kilburn Avenue for the accused. He went to that address once on April 18, 2011 but nobody was home. Henever went back to the Kilburn address on any other occasions to try to catch the accused or someone else at home. He did not check thepolice data base, the SGI data base or do any other investigation to determine where the accused was or if she was still resident onKilburn Avenue.

He did not task a patrol officer or someone from the Integrated Drug Unit to try to locate the accused and arrest her forthese offences. He did not check with the school administration to determine if they had any other contact information for the accused orspeak to other students to see if they had seen the accused. He did not do anything else to locate the accused except going to the Kilburnaddress the one time. [29] On the incident report that was given to Constable Maloney by the Vice Principal, it stated that the accused lived with hergrandmother, Muriel Ermine, at the Kilburn address.

Further, it gave the accused’s home telephone phone number and cell phonenumber. Despite knowing this, Constable Maloney did not do any investigation to find out if Muriel Ermine was still residing at theKilburn address or if she had moved, and he did not try to phone either the accused’s home phone number or her cell number. Suffice itto say he made virtually no effort to locate the accused before requesting a public interest warrant. [30] As it turned out, the accused was no longer living at 1623 Kilburn Avenue in April of 2011.

As a matter of fact, she had notlived there since 2008 however she had not updated her address for the school records. Prior to 2008 she had been living at the Kilburn Avenue address with her grandparents however in 2008 she moved with them to 2802 - 33rd Street West. Her telephone and cell phone numbers remained the same and her grandmother’s name and address was in the telephone book. Her driver’s licence had her 33rd Streetaddress on it. The school had one emergency contact person for her and they knew her present whereabouts.

By all accounts she waseasily locatable. [31] I am surprised, to say the least, with the effort or lack thereof made by Constable Maloney to locate the accused. Had he donesome investigation I am sure that he would have had no problem locating and arresting her.

His inaction is not acceptable and as a result,this five and one half month delay between laying the Information and arresting the accused must be borne by the Crown. [32] After the accused was charged in this case, there was a period of time over which the accused apprised herself of her optionsand made an informed decision as to how she wanted to proceed. The time period to which I refer is October 11, 2011 to February 8,2012. During this period the accused sought legal advice, retained Mr. Owens to act as her counsel, disclosure was requested andreceived and finally it was reviewed with the accused.

The culmination of these events occurred on February 8th when Mr. Owensentered a not guilty plea to the charges and had them set down for trial. [33] The Crown did nothing to delay the accused’s case in this four month period. The accused moved her matter along in arelatively timely manner. It took her a couple of weeks to retain Mr. Owens. Once retained he requested disclosure and it was providedby the Crown in short order. It was the accused and Mr. Owens who selected the adjourned dates based on Mr. Owens’

schedule andwhen he could review the disclosure and meet with the accused to set out her options. At the same time as he was dealing with thesedrugs charges for the accused, her obstruction charge was being adjourned from time to time as it went through the mediation process.

The court record indicates that there was some effort made by Mr. Owens to set the drug matters to the same date that the obstruction charge was going to be back before the court, presumably to minimize the number of court appearances he had to make for his client. Finally on February 8, 2012, Defence was finally prepared to advise the court how the accused wished to proceed. [ 34 ] There was nothing unreasonable about this period of time. It was simply the inherent time required for an accused person to decide whether they wanted to proceed to trial or dispose of the matter by way of a guilty plea.

Four months for this intake period was not extraordinary. [ 35 ] There was also nothing unreasonable about the length of time from February 8, 2012, the date the accused entered her not guilty pleas, to October 9, 2012, the date set for the first trial. The Trial Request Form attached to the Information shows that an earlier trial date of June 21, 2012 was available and offered. The Form does not state why June 21 st was not an acceptable trial date however in closing argument on this application, Mr.

Owens advised me that he was not available June 21 st and that October 9th was the first available date he had for a trial for the accused. The form was also endorsed that delay was not in issue at this time. Since the trial date was set to accommodate Mr. Owens, it was reasonable for him to make this concession. As a result, this delay of eight months is the Defence responsibility. [ 36 ] Had the accused’s matters proceeded to trial on October 9, 2012, there would have been no basis to allege that the accused did not get a trial in a reasonable time.

However, the accused’s matters did not proceed to trial on that date. Problems arose at the outset of the trial. First, the Crown raised an objection with the sufficiency of the Charter notice filed by the Defence. At page 1 of the transcript of the October 9th proceedings, Mr. Miller, the Crown prosecutor, said: Mr. Miller: Your Honour, if we could deal with some preliminary matters - - The Court: Okay. Mr. Miller: - - on this?

The Crown’s position is that the Charter notice that was contained in my friend’s letter of June 19 th of 2012 is not adequate in terms of the requirements of the notice authorized in the case law and common law, and required by the practice directive. [ 37 ] Before the Crown said anything further Mr. Owens interjected and began taking issue with the Crown’s contention. He then stated at page 4 of the transcript: Mr. Owens: . . . .

Now, at the pre-trial before Judge Irwin, my notes indicate, and I think my friend’s notes indicated this as well, that the Crown was to give us 30 days notice if they were going to be tendering any statements made by the accused to the principal or the teacher. In my view, pretty clear-cut persons in authority because they have - - because they have more power than the police under the Education Act when it comes right down to it. So the Crown, only on Thursday, advised me that they were, in fact, going to be tendering that statement. I said, well, it’s Thanksgiving weekend and I’m - - I’ve got things on the go.

I haven’t had a chance to prepare for that issue now that the Crown has provided notice, effectively, as I told Mr. Miller, the day before or two days before the trial. And Friday I was in Prince Albert all day at a trial. So that’s - - that’s, effectively, where we’re at today, is that I haven’t had a chance to prepare for that since the Crown has now said they want to tender that statement and they have the principal and the teacher here. So, you know, it’s - - it’s a bit of a problem all around. So that’s the background.

I apologize for intervening, but that’s the factual background. [ 38 ] Eventually, the Trial Judge decided to adjourn the trial. At page 8 of the transcript he said:

The Court: In any event - - thanks for that, counsel - - I think we have a problem here in attempting to proceed on - - on short notice. And again, I - - I’m - - I think both counsel need to be given the benefit of the doubt in terms of ensuring that there is adequate and timely notice of the - - of the - - the Charter application and whatever else - - whatever other material may be filed with it. I’m just looking at practice directive 7, or 8, rather, which I assume deals with issues of - - of Charter applications.

And, again, I grant you both that we’re in early days in interpreting and trying to ensure that there is good faith shown by counsel to ensure that the material is properly before the Court in a timely manner. [ 39 ] The Trial Judge then said at pages 11 and 12 of the transcript: The Court: . . . .

That said, however, when there appears to be somewhat shortened notice of either the - - the basis for an application or a response, and/or short notice of filing material, in these circumstances, we all need to be patient with the - - the new practice directive process and adjourn to ensure that all proper notice has been given regarding both the applications being alleged and the responses to them, and any material such as Briefs of Law be filed in a timely way so that counsel and the Court can have proper and adequate notice of that material prior to the - - the proceedings. [ 40 ] Once the Judge indicated that he felt that an adjournment was appropriate given the position of both parties, Crown and Defence agreed that the matter should be re-pretried.

At page 13 of the transcript the following dialogue occurs: Mr. Owens: Well, I think it should be re-pretried to be honest with you. The Court: Well, that’s a possibility too. Mr. Miller, any thoughts on that, sir? Mr. Miller: That would be a good idea, I think, Your Honour. As I indicated, our - - our position is based on the case law that the - - the notice, which you can even see, did not provide sufficient details.

So I appreciate Your Honour’s comments about adjourning the matter on that basis. . . . [ 41 ] Court was adjourned and Crown and Defence attended on the Trial Coordinator to select a new date for a case management as well as new dates for trial. When court reconvened, counsel had now set two days instead of one for the trial since the matter was now becoming reasonably complicated, it involved more witnesses and more Charter issues than when it was first set down for trial.

The Trial Judge set May 15, 2013 and June 3, 2013 for trial and March 8, 2013 for another case management conference. [ 42 ] On the Trial Request Form that is part of the court record, it is endorsed that March 14, 2013 was available and offered for trial. The Form does not state why the trial was not set to March 14th, however Mr. Owens, in closing argument on this application, told me that he was not available that date. Once again he indicated to me that his first available date for trial after October 9, 2012 was May 15, 2013 and consequently that was when the trial was set.

It was also endorsed on this Form that delay was not in issue at this time. [ 43 ] In my view, the accused’s matters did not proceed to trial on October 9, 2012 because the Trial Judge determined that both Defence and Crown had not given the other proper notice of the applications that each wished to make. In his view, the only way to maintain any semblance of procedural fairness in the case was to adjourn so that both sides could prepare adequate and timely notices of what each intended to do.

In order to ensure that occurred and with the agreement of both counsel, the Trial Judge felt that the matter should go back to case management for these issues to be straightened out. [ 44 ] For the purposes of determining whether this adjournment of the trial was unreasonable or unduly delayed the accused’s trial, it is important to note that Defence counsel did not take any issue with trial delay when these May 15th and June 3rd trial dates were selected.

The fact is he could not take any issue with these dates because this May 15th date was the first date he was available to run the accused’s trial after October 9th. [ 45 ] Defence counsel did not raise any issue about a delay in getting the accused’s matters onto trial until the case management hearing on March 8th. The Judge presiding over the case management wanted to know if this issue had been raised on October 9 th because if the Court had been alerted that delay was an issue, the Court would have made every effort to hear the matter at the earliest possible date.

It was clear from the transcript of the October 9th court appearance that the Court was not made aware of this issue. To

the contrary, the transcript shows that the Defence was fine with an adjournment. He did not ask the Judge to rule on his objection, rather he suggested that the matter should go back to a pre-trial conference. The Defence did not advise the Court that he was opposed to the adjournment. The Crown, on the other hand, acquiesced to the adjournment but specifically told the Trial Judge that he was prepared to proceed to trial whether the Court allowed them to introduce the accused’s statements or not. Defence acknowledged when selecting new trial dates in May and June, that delay was not an issue.

Finally, Defence was not available for trial any earlier. As a result, this delay must be borne by the Defence. To suggest that somehow this was the Crown or the Court’s fault is not appropriate. [ 46 ] The accused testified on this application that the delay in getting her matters to trial have caused her some prejudice.

Specifically she complained that the effluxion of time has weakened her memory of the events surrounding the incident, that she has moved to British Columbia and it is inconvenient and expensive for her to have to travel back to Saskatoon for court dates and meetings with her lawyer, that she is not able to commit to a full-time job until these charges are resolved and that she has, in effect, put her life on hold.

She also said that her liberty is affected by the release conditions she is on, she feels stress and anxiety as a result of these matters and they are very embarrassing to her. [ 47 ] While I accept the length of time it has taken to get to this point has been somewhat prejudicial to the accused, I do not find that it has affected the accused to the extent that she says it has. It is apparent to me that credibility may be an issue in this case. It is logical that memories fade over time, however the only anticipated witnesses in this case are police officers, the Vice Principal and the accused.

Police officers have notes, and in this case, an expert report, from which they can refresh their memories in order to give accurate testimony. The Vice Principal will be able to review his statement to refresh his memory. The accused may or may not have made notes but the trial is all about her and what she did or did not do. I would be surprised if she did not remember what occurred. [ 48 ] The fact that the accused chose to relocate to Vancouver after these charges were in court does not create any prejudice.

By the accused’s own admission, she relocated to Vancouver because she went out there to visit a friend and liked it so much she stayed. She also saw it as an opportunity to get away from the negative peer group she was hanging out with in Saskatoon. These were her decisions based on her own personal circumstances and had nothing to do with her trial matters. The inconvenience of having to come back to Saskatoon to attend court and meet with her lawyer does not create prejudice for the accused either.

A review of the different dates that her matter was in court shows that on many occasions she was not in attendance and a bench warrant had to be held as her counsel never filed a designation of counsel. She only appeared in court on these matters when she was first arrested and on the dates that were set for her trials.

She did not personally appear on any other dates and had she not relocated to Vancouver, the cost and time she had to expend meeting with her counsel would have been considerably less. [ 49 ] I also do not accept that she has been hampered in her ability to work by the delay in getting this matter on to trial. She admitted these charges have not affected her ability to find work. She said that these charges have affected her ability to commit to a job as she would have had to take time off to attend back to Saskatoon for court.

However, I see no reason why she could not get on with her life and commit to a full time job despite these pending charges. She had considerable notice of her trial dates and should have been able to make appropriate arrangements with her employer to get time off to attend court. It may be embarrassing to her to have to advise her employer of these criminal charges but there is nothing in her testimony convincing me that the length of time it has taken to get to this point has caused her to lose a job or be denied a job. [ 50 ] The accused was never held in custody overnight.

Upon being arrested in October 2011, she was immediately taken to court and released on an undertaking on conditions. The conditions included not being able to possess a cell phone or other electronic communication device and being subject to a search of her person, residence or vehicle on demand of a peace officer without warrant and with or without reasonable and probable grounds. These conditions were onerous and over time would certainly be considered of some prejudice to the accused. However, the accused was re-arrested in Saskatoon on some new charges on November 27, 2012.

These new charges included another drug charge and two breaches of her existing undertaking. Despite these new charges, she was re-released that same day on the same conditions she had been released on previously. Her November 27 th charges were on the Bench to be spoken to once her trial on her original charges was completed.

Given that she now has new charges binding her by conditions, any prejudice as a result of these conditions and the time it is taking to complete this matter is of much less significance. [ 51 ] I accept that there was some prejudice arising from the embarrassment of these charges and the stress and anxiety the accused suffered as these matters carried on, but that too is limited. According to her, she suffered from stress and anxiety before these charges were laid.

Even considering the prejudice that can be inferred from being charged with these offences, the accused being on release conditions and being subject to the stress of having to deal with these charges, I am not satisfied that the prejudice suffered by her in this case was anything but minimal. Her ability to make full answer and defence has not been prejudiced and what little prejudice has occurred does not make the delay in this case unreasonable.

[ 52 ] For all of these reasons, I am not satisfied that the delay in this case was unreasonable. Of the 25 months from the date the Information was sworn to the accused’s second trial dates, 19 ½ months were due to the inherent time requirements of the case or Mr. Owens schedule. The remaining delay was not of such significance that it affected the accused’s right to a trial within a reasonable time. Any prejudice to the accused was minimal and affected by her counsel’s own

schedule and the fact that she incurred further criminal charges. Therefore, I am not satisfied on a balance of probabilities that the accused’s

section 11(

b) Charter right to have a trial within a reasonable time has been violated and the accused’s application is dismissed. ____________________________ D.E. Labach, J