Her Majesty the Queen - v. -, 2022 SKPC 32

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 32 Date: August 4, 2022 Information: Ticket 85469886 - R. v. James Olson Ticket 85469894 - R. v. 575883 Saskatchewan Ltd. Ticket 85308545, 85480388, 85155684 - R. v. Alexander Monaghan Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - James Olson - and – Her Majesty the Queen - and - 575883 Saskatchewan Ltd. - and – Her Majesty the Queen - and - Alexander Monaghan Appearing: S.S. Bains For the Crown L.A. Coupal For the Accused

Decision on Charter Application Q. D. AGNEW, J [1] This decision concerns a delay application brought by all three defendants concurrently, in advance of trial but after the trialdates were set. Defence contends that, for each defendant: the 18-month limit set by the Supreme Court of Canada in R v Jordan, 2016SCC 27, [2016] 1 SCR 631 [Jordan] for time to trial in Provincial Court will be exceeded; their rights under s. 11(

b) of the CanadianCharter of Rights and Freedoms [Charter] to be tried within a reasonable time have thus been breached, and; accordingly, per Jordan, theproceedings against each of them should be stayed. The Crown accepts that facially these times exceed Jordan, but argues that, due tothe COVID-19 pandemic, Jordan has not in fact been exceeded and that accordingly no relief should be granted. [2] All of the matters which are the subject of this decision arise from the current COVID-19 pandemic, and the Province ofSaskatchewan’s response to it.

Although the circumstances of each are different, and the charges vary somewhat, the facts with respectto the present application are very similar between all charges, and the legal arguments presented by both Crown and defence areidentical. I have therefore chosen to deal with the three defendants’ applications together. Judicial notice [3] Both Crown and defence urged me to take judicial notice of certain matters. In my view, I am entitled to take judicial noticeof the following for the purposes of this application: 1. the existence of the COVID-19 pandemic (the pandemic).

In this regard, as with judicial notice generally, I am guided by thecomments of Danyliuk, J in R v Kay, 2022 SKQB 72 at paras 68 - 75. Judicial notice of the pandemic was also taken in R v Weber, 2022SKQB 116.

See also K.M.S. v K.B.S., 2022 SKQB 57 at paras 13 - 18 and the cases cited therein; 2. records and proceedings of this Court, including specifically the endorsements attached to each of the tickets which are thesubject of these applications: see R v Okanee, (SK KB), [1984] 1 WWR 476 (Sask QB); 3. other records of this Court: see R v Lewis, (BC CA), [1941] 4 DLR 640 (BC CA), citing Craven v Smith(1869), LR 4 Ex 146: “The Court has at all times power to look at its own records, and to take notice of their contents, although they maynot be formally brought before the Court by affidavit.” See also R v Tysowski, 2008 SKCA 88 at para 19, 311 Sask R 113: “. . .

Iconclude that, as a matter of settled law, a court has the authority to examine its own records and take judicial notice of their contents.” The latter point includes notices posted at certain court locations in Saskatchewan at the direction of the Chief Judge of thisCourt. For the purposes of the present application, I take notice of five documents, identical to each other except for dates, posted atSaskatoon Traffic Safety Court. All tickets before me were scheduled to be heard in Traffic Safety Court in Saskatoon, which is adivision of Provincial Court typically presided over by Justices of the Peace.

The notices read as follows: PUBLIC NOTICE Saskatoon Traffic Safety Court FIRST APPEARANCES ONLY 110 - 410 22nd Street East, Saskatoon (Saskatoon Square) If you were scheduled to appear for a Traffic Safety Court First Appearance between [certain dates], your appearance has been re-scheduled. Please see below for your new appearance date - the dates are also posted on-line at www.sasklawcourts.ca. All first appearances will take place at 110-410 22nd Street East, Saskatoon (Saskatoon Square) on the rescheduled dates.

If you fail to appear as scheduled below you may be convicted in your absence or a warrant may be issued for your arrest. NOTE: you may appear by telephone for your first appearance. If you wish to appear by telephone please contact the ProvincialCourt at 306.933.6621. You must receive prior approval from the Court to appear by phone. [all emphases in original] [There followed on each notice a list of original appearance dates and, beside them, a corresponding list of rescheduled appearancedates. For brevity, only the dates relevant to the present matters are reproduced here]

Original Appearance Date Rescheduled Appearance Date [re Olson] April 29, 2021 September 10, 2021 [re 575883 Sask. Ltd.] May 5, 2021 September 16, 2021 [re Monaghan] ticket 85308545 March 8, 2021 May 31, 2021 May 31, 2021 October 12, 2021 ticket 85155684 March 18, 2021 June 3, 2021 June 3, 2021 October 15, 2021 tickets 85440803 and 85480388 May 5, 2021 September 16, 2021 4. that the above notice was part of this Court’s response to the COVID-19 pandemic. Facts [ 4 ] Counsel agree that the following are the salient events, and calculations of time, with respect to each defendant.

Counsel also agree that the Jordan time limit of 18 months is equivalent to 540 days, for the purposes of calculation. Olson [ 5 ] The ticket was written, and thus the charge laid, on January 30, 2021. The anticipated end of trial is October 25, 2022. The amount of time has been calculated by counsel to be 633 days; that is, 93 days or just over three months over the Jordan ceiling. The ticket notified Mr. Olson that his first court appearance on the ticket was April 29, 2021. By the Public Notice quoted above, that court date was rescheduled by the Court to September 10, 2021, a delay of 134 days.

If deducted, this would bring the delay to 499 days. Defence accepted that it was responsible for a further short delay which should be deducted; if both are deducted, the total delay for Jordan purposes is 495 days. 575883 Sask. Ltd. [ 6 ] The charge was laid on February 5, 2021. Anticipated end of trial is October 27, 2022, a total of 629 days, which is 89 days or just under three months in excess of the Jordan limit. The first appearance was set for May 5, 2021, and rescheduled by the Public Notice to September 16, 2021, a matter of 134 days. Deducting this would leave a delay for Jordan purposes of 495 days.

Defence also waived delay for a further period of 21 days, and failed to appear on a docket date causing a delay of 20 days; defence accepts that both of these should be deducted. The Jordan delay, if the entire amount is deducted, would therefore be 454 days. Monaghan - ticket ending 545 [ 7 ] This ticket was written, and the charge therefore laid, on December 15, 2020. Anticipated end of trial is September 30, 2022, a total of 654 days: 114 days, or slightly under four months, over Jordan . First appearance on March 8, 2021 was rescheduled by Public Notice to May 31, 2021: a period of 83 days.

On May 31, 2021 the matter was further rescheduled by Public Notice to October 21, 2021, a further 134 days. If both periods are to be deducted from the overall delay, the remaining total is 437 days. Defence also waived delay for 36 of the remaining days, leaving a final total of 401 days. - ticket ending in 803 [ 8 ] This charge was laid January 6, 2021. Anticipated end of trial is September 30, 2022, a total of 632 days, which is 92 days or just over three months in excess of the Jordan limit. First appearance on May 5, 2021 was rescheduled by Public Notice to September 16, 2021, 133 days later.

If subtracted from the total, this would leave 499 days. Defence waived delay, or accepted responsibility, for periods totalling 41 days. If all of these periods are deducted from the total number of actual days, the final number remaining is 458. - ticket ending 684 [ 9 ] The charge was laid January 13, 2021, and anticipated conclusion of trial is September 30, 2022, a total of 625 days: 85 days, or just under three months, over Jordan . First appearance of March 18, 2021 was rescheduled by Public Notice to June 3, 2021, and then

by further Public Notice to October 15, 2021, periods of 83 and 134 days respectively. If all are deducted, the remaining delay would be408 days. - ticket ending 388 [10] This ticket was written, and the charge therefore laid, on January 20, 2021. Anticipated end of trial is September 30, 2022, atotal of 618 days, which is 78 days or approximately 2 months over the Jordan time limit. First appearance on May 5, 2021 wasrescheduled by Public Notice to September 16, 2021: a period of 133 days. If that period is deducted from the overall delay, theremaining total is 485 days.

Defence waived delay, or accepted responsibility, for 41 of the remaining days, leaving a final total of 444days. Does Jordan apply? [11] During the course of argument in this matter, I raised with counsel the question of whether or not Jordan applies to thesematters, given that they are tickets under provincial legislation. The Crown counsel responded that, although these tickets were typicallydealt with by Justices of the Peace in Traffic Safety Court, that Court is itself a subset of Provincial Court and therefore Jordan applies. Defence counsel responded to my question by noting that s. 11(

b) of the Charter gives a right to trial within a reasonable time to anyonecharged with “an offence”, and pointed to R v Wigglesworth, (SCC), [1987] 2 SCR 541 as support for the propositionthat “an offence” means a criminal or quasi-criminal proceeding which involves “true penal consequences”. As it happens, I agree withcounsel on both of their points; I do not, however, think that either of those points answers the question. [12] Like many legal propositions, discussion of the Jordan principles often takes place in a form of shorthand: for example, “theJordan limit in Provincial Court is 18 months, and 30 months in the Court of Queen’s Bench”. Such a

summary omits the rules set bythe Supreme Court regarding cases above the presumptive ceiling, the separate rules for cases below the presumptive ceiling, and therules for cases which began prior to Jordan (see para. 105). Such shorthand also ignores the type of cases to which Jordan applies: thereis no suggestion that Jordan applies to Small Claims cases in Provincial Court or civil or family law cases in Queen’s Bench, forexample.

Such shorthand is usual and perfectly appropriate in most situations, as the participants in such discussions know of theunstated details, which typically do not apply to their discussions, and nothing would be served by adding in all of those irrelevantqualifiers every time the Jordan limit was discussed. [13] However, such shorthand can also become a form of blinder, as when it causes one to overlook some of the details which areusually not significant but which in a particular case are important. [14] The Supreme Court in Jordan was not speaking of all cases.

It was, in fact, very clear that it was speaking specifically aboutcriminal cases. This is made explicit in the very first paragraph: “Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance.” (emphasis added).

This clarity continues in the second paragraph: a. it refers to the “criminal justice system”; b. it refers to someone receiving “a criminal charge”’ c. it refers to victims who may have suffered tragic losses and who cannot move forward with their lives; d. it refers to accused persons who are often held in pre-trial detention; e. it speaks of persons charged with “criminal offences”. [15] In fact, the Supreme Court refers to the “criminal justice system” in Jordan 14 times in the majority opinion (and once toCanada’s “system of criminal justice”).

This is in addition to references to “criminal proceeding” (1), “criminal trials” (2), “criminalprocess” (1), “criminal cases” (3) and “crimes[s]” (6). At no point does the Supreme Court use the terms “regulatory offence”,“provincial offence”, “ticket” or “quasi-criminal”. In referring to the new system of presumptive ceilings it was imposing, the Courtsaid: [108] Participants in the criminal justice system will know, in advance, the bounds of reasonableness so proactive measures can be takento remedy any delay. And the public will more clearly understand what it means to hold a trial within a reasonable time.

Enhanced clarityand predictability befits a Charter right of such fundamental importance to our criminal justice system. (italics in original, underliningadded) [137] Real change will require the efforts and coordination of all participants in the criminal justice system. (emphasis added) [140] For provincial legislatures and Parliament, this may mean taking a fresh look at rules, procedures, and other areas of the criminallaw to ensure that they are more conducive to timely justice and that the criminal process focusses on what is truly necessary to a fairtrial.

Legal Aid has a role to play in securing the participation of experienced defence counsel, particularly for long, complex trials. AndParliament may wish to consider the value of preliminary inquiries in light of expanded disclosure obligations. Government will alsoneed to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequately resourced. (emphasisadded)

[ 16 ] In light of the concerns the Supreme Court refers to in paragraph two of Jordan , as outlined above, this focus on criminal offences, and disregard of provincial offences, makes perfect sense. Although there are exceptions, most provincial offences are of a minor nature, such as speeding tickets or, as those before me in these proceedings, not wearing a face covering. There are typically no “victims [who] have suffered tragic losses”; there are no persons being held in pre-trial detention.

The issues which the Court identifies with excessive delay in the criminal context simply do not exist, or carry the same urgency, in the context of provincial tickets. [ 17 ] Although I have not located any Saskatchewan cases on this point, the applicability of Jordan to provincial offences was considered by the Ontario Court of Appeal in R v Nguyen , 2020 ONCA 609 , 152 OR (3d) 667 [ Nguyen ]. That case held that the 18- month presumptive ceiling established by Jordan did in fact apply to provincial offences; specifically, in that case, speeding and failing to stop at a red light.

However, the case is not as clear as it seems: the issue before the Court of Appeal was, “Does the 18-month presumptive ceiling established in Jordan apply to proceedings under

Part 1 of the POA [ Ontario’s Provincial Offences Act ] or should the ceiling be lower ?” (para 19) [emphasis added] That is, in Nguyen the issue was restricted to one of two outcomes:

(1) Jordan ’s 18 months; or (2) a lower time limit. [ 18 ] In the course of its analysis, the Court referred to R v K.J.M. , 2019 SCC 55 , 381 CCC (3d) 293 [ K.J.M. ]. In K.J.M. , the Supreme Court of Canada considered the question of whether Jordan should apply to matters under the Youth Criminal Justice Act , SC 2002, c 1 [ YCJA ] or whether, again, there should be a shorter time limit. The Supreme Court held that the Jordan limit applied.

The Ontario Court of Appeal concluded that this meant that POA offences were also subject to Jordan : [25] In M.(K.J.) , the Supreme Court reasoned that the creation of a separate criminal justice system, which codifies the need for timeliness in youth cases, does not justify the use of a different presumptive ceiling. That same reasoning applies to proceedings under

Part 1 of the POA . [26] The language in M.(K.J.) is categorical: the ceilings established in Jordan apply uniformly. Accordingly, while the POA is intended to provide a speedy and efficient process for dealing with regulatory offences, the 18-month presumptive ceiling for single- stage provincial court proceedings established in Jordan applies to proceedings under

Part 1. [ 19 ] With the greatest of respect, I must disagree. Unfortunately, the Court of Appeal does not cite a paragraph number or quote the “categorical” language it refers to. I myself can find nowhere in K.J.M. where the Supreme Court makes such a “categorical” statement. K.J.M. is concerned solely with whether or not there should be a lower limit than 18 months in youth court. The Supreme Court goes into considerable depth examining the YCJA and discussing how its requirements for speedy resolution can be accommodated within the Jordan analytical framework but makes no reference to provincial offences.

Indeed, there would have been no call for the Court to refer to provincial offences in the context of the YCJA , since that legislation applies only to federal legislation - see, for example, the definition of “offence” in

section 2 : ‘“offence” means an offence created by

an Act of Parliament or by any regulation, rule, order, bylaw or ordinance made under

an Act of Parliament other than . . .’ In short, the Supreme Court in K.J.M. considered only the YCJA , and considered only whether the presumptive limit for trial for offences under the YCJA should be the Jordan number or something smaller. There is simply no consideration given in K.J.M. to whether or not Jordan should apply to provincial offences and, in my respectful view, no reasoning which would lead to that conclusion. [ 20 ] Outside of Ontario, Nguyen has been referred to in only two decisions, both from British Columbia. The first is R v Baryar , 2021 BCPC 40 [ Baryar ].

Baryar was a case involving a traffic ticket of some sort. Although the Court makes reference to Nguyen , it is simply in the context of being one of a number of cases considered without analysis. In Baryar , the Court simply assumed that Jordan applied. Accordingly, I am unable to find anything of assistance in it. [ 21 ] The other British Columbia case is R v Sangha , 2022 BCSC 874 . This was an appeal from a decision of a Provincial Court Judge on a traffic ticket.

The lower court had held that, based on the principles set out in Jordan , traffic tickets should attract a presumptive ceiling lower than that for criminal trials in Provincial Court, and set a presumptive ceiling of 14 months. Again, this was a situation in which the issue was whether or not there should be a ceiling below Jordan , without analyzing whether or not Jordan actually applied. The British Columbia Supreme Court cited Nguyen in overturning the lower decision; however, there was no new reasoning.

Therefore, as I am unpersuaded by Nguyen , I am unpersuaded by Sangha . [ 22 ] There are good reasons why Jordan does not apply to provincial offences. In Saskatchewan, whether provincial tickets are dealt with by Justices of the Peace or by Provincial Court Judges, whether the court is called “Traffic Safety Court” or “Provincial Court”, they are all the same: all are in the Provincial Court of Saskatchewan. Indeed, whether a provincial ticket is heard by a judge or a justice of the peace may simply depend on the location of the court point at which the matter is being heard.

Given that they are all in Provincial Court, they are all competing for the same limited pool of judicial resources as all other matters in this Court. It defies common sense to suggest that someone who wants to dispute a speeding ticket should have the same priority to a trial date as does someone sitting on remand awaiting trial in Provincial Court for manslaughter. That, however, is the necessary implication of Jordan applying to provincial offences.

There is nothing in Jordan to suggest that the Supreme Court intended such a result, and I would be loath to read in such an intention, given the illogic that would result. [ 23 ] In addition, as noted above, defendants on provincial tickets do not typically suffer the same restrictions on their liberty, whether by being on release conditions or by being physically held in remand, as may be the case for persons accused of criminal offences. There are also not typically victims who have suffered tragic losses, who need closure in order to be able to move on with their lives.

These are all features noted by the Supreme Court of Canada in Jordan as important reasons for setting the limits defined in that case. [ 24 ] Counsel for the defendants pointed out that the Charter guarantee to trial within a reasonable time applies to the present offences. I agree. That does not mean, however, that what constitutes “a reasonable time” must be the same for provincial offences and criminal offences. For the above reasons, what constitutes a “reasonable” time to trial for not wearing a mask must necessarily be greater

than the reasonable time to trial for an accused on remand awaiting trial for manslaughter. What that time might be, I do not need todecide in this case: as indicated in the timelines, trials in these matters are currently scheduled to be concluded roughly three monthsbeyond the Jordan limit (the longest, Mr. Monaghan’s oldest ticket, will be just under four months over Jordan). Whatever theappropriate presumptive ceiling for these charges might be, I am satisfied that it is somewhere beyond the times by which the presentmatters are expected to be concluded.

Alternatively, if Jordan does not apply, then perhaps there is no presumptive ceiling forprovincial tickets, and it may be that the delay regime established by the Supreme Court of Canada in R v Askov, (SCC),[1990] 2 S.C.R. 1199 and R v Morin, (SCC), [1992] 1 S.C.R. 771 would apply. One of the major factors in determiningthe outcome of a s. 11(

b) issue under those cases was prejudice to the accused. I note that I have no evidence of prejudice to any of theseaccused, the onus of providing which would be on them [25] I would therefore dismiss the applications for stays based on delay in bringing these matters to trial. [26] In the event that I am incorrect in that conclusion, however, I will consider the arguments made by Crown and defence.

Pandemic delay [27] Jordan states that the delay created by “exceptional circumstances” is to be deducted from the calculation of delay: [68] Delay (minus defence delay) that exceeds the ceiling is presumptively unreasonable. The Crown may rebut this presumption byshowing that the delay is reasonable because of the presence of exceptional circumstances. [69] Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonablyunavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So longas they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirelyuncommon.[emphasis in original] [28] The defendants have, for the purposes of this application, accepted that the pandemic constituted “exceptional circumstances”,a position with which I agree.

Although the Supreme Court in Jordan states (para. 70) that the Crown must show that it took reasonablesteps to address the delay issue caused by the exceptional circumstances, defence is not making an argument on that basis here. Thedefendants’ arguments relate solely to the question of whether or not the time during which the Court was closed to these defendants, butwhich period was not the subject of a “Public Health Order” which restricted indoor gatherings, should be included in those “exceptionalcircumstances”.

Presumably there was a period of time when Traffic Safety Court in Saskatoon was not sitting, as per the Public Noticesquoted above, but when public indoor gatherings were not restricted.

If the public health authorities of the province do not require theCourt to be closed due to the pandemic, but the Chief Judge closes them in response to the pandemic anyway, is that period still part ofthe pandemic-induced “exceptional circumstances”? [29] It will be noted from the timelines set out in “Facts”, above, that if the entire periods for which the various tickets before mewere adjourned by the Public Notices are deducted from the Jordan period, there is no delay issue: all are then under the Jordan limit.

Conversely, if the Public Notice periods are deducted, then all of these matters exceed the Jordan limit. [30] Defence takes the following position (paraphrased by me): a. the original “lockdown” imposed in the spring of 2020 was a reasonable response to the COVID-19 pandemic at the time andwould be properly deducted from Jordan; except that all of the periods in question before me occurred after that initial lockdown periodhad expired; b. the Saskatchewan government lifted all restrictions in the summer of 2021, a period in which this Court (as per the PublicNotices) remained closed to first appearances for these defendants; c. there is no justification for the Court to remain shut when the Provincial government has decided that indoor public gatheringsare permissible; d. if the Court chooses to shut its doors when it is not required to do so, that period should not be deducted from the Jordancalculation, as such an action is not a reasonable reaction to the pandemic; e. the Court cannot take judicial notice of Public Health Orders; rather, I can take notice generally that various orders were issuedat various times, but I cannot take notice of the specific contents or dates.

I certainly agree that I cannot claim that such details are “so‘notorious’ or . . . ‘accepted’, that no reasonable person would dispute [them]” (R v Mabior, 2012 SCC 47 at para 71, 290 CCC (3d) 32); f. I can only take judicial notice of matters which have been published in the Saskatchewan Gazette (Gazette) if a paper copy ofthe same has been filed with the Court (presumably as per s. 41(3) of The Evidence Act, RSS c.

E-11.2 [Act]; g. no such paper copy having been filed, I am unable to take judicial notice of, for example, any orders of the Lieutenant Governorin Council which might be relevant to the matters before me; h. there is therefore no evidence with respect to the Public Health Orders, and more specifically when they were or were not ineffect. [31] With the greatest of respect, I see several difficulties with the defendants’ position.

[ 32 ] Firstly, I do not accept the notion that I can take judicial notice of the contents of the Saskatchewan Gazette only if it is filed as an exhibit in evidence. To take judicial notice of facts is specifically to be able to accept them as proven without them having to be placed in evidence. [ 33 ] Secondly, the Act provides (s. 40(3)):

(3) Judicial notice shall be taken of: (

a) any proclamation or order of: (

i) the Lieutenant Governor, Lieutenant Governor in Council, Commissioner or Commissioner in Council of any province or territory of Canada, including any former dominion, colony, province or territory that forms part of Canada; or (ii) the Governor General or Governor in Council of Canada; and (

b) any publication of a proclamation or order mentioned in clause (

a) that is published in the official gazette or journal of the enacting jurisdiction. [ 34 ] It can be seen that s. 40(3) deals with two different matters. In clause (a), the Court is directed to take judicial notice of, inter alia , Orders in Council. In clause (b), the Court is separately directed to take judicial notice of the gazetting of any such Orders in Council. However, these are clearly two different things - the first is the fact that the Order in Council was made, the second is the fact that it was gazetted.

They are independent, however, in that judicial notice of the former is not contingent upon the latter. The distinction might well be important for proclamations which come into effect upon publication in the Gazette , for example. [ 35 ] Accordingly, I find that I can take judicial notice of Orders in Council made by the Lieutenant Governor of Saskatchewan, whether or not a paper copy of the Gazette in which such Order was published has been filed in evidence before me. [ 36 ] Thirdly, if defence is correct in these assertions, the question arises as to whose burden it is to place this evidence before me.

The application is the defendants’: they must accordingly provide evidence in support of their application, which has been done via the court records which show a breach of the presumptive ceiling set by Jordan . Once the presumptive ceiling is breached, the burden shifts to the Crown to show exceptional circumstances which justify the breach ( Jordan ). The Crown has relied on judicial notice and the Court’s records to show the Court’s response to the pandemic. The defendants wish to argue that the response was, for a period of time, not reasonable because of the lifting of the Public Health Orders.

In my view, the evidentiary burden in this regard shifts back to them, rather than resting on the Crown. Defence cannot, simply by raising a theoretical argument such as here, impose an evidentiary burden on the Crown to disprove it - defence must do something more, to show that the argument has some merit, before the tactical burden shifts back to the Crown to disprove it.

Specifically, in the case before me, defence must show that the Public Health Orders were not in existence for some period, and that this period would bring the total amount of time above the Jordan ceiling, before the Crown has any further obligation to produce evidence. To put it another way, defence cannot simply allege the existence of documents which, if in evidence, would support its position, and thereby place the burden on the Crown to prove or disprove the existence of such documents.

Accordingly, if defence is correct about the Court not being allowed to take judicial notice of the Public Health Orders, the onus is on the defence to provide in evidence the documents which it says support its position. It has failed to do so, and its application would accordingly fail. [ 37 ] My sister Judge Marquette recently delivered a decision in R v Keough , 2022 SKPC 23 [ Keough ], which also involved issues of COVID-19 and face masks. In it, she gives a

summary of certain responses by the Provincial government to the COVID-19 pandemic. I presume that this was not intended as a comprehensive history but was simply a

summary of the matters relevant to the matter before her.

Still, the following is instructive (paras. 2 and 3, with footnotes): [2] On March 20, 2020, a state of emergency was declared by the Government of Saskatchewan pursuant to The Emergency Planning Act 2 which was renewed from time to time and was in place at the time of the alleged offences in this matter. 3 Further, the Government of Saskatchewan designated COVID-19 a “category I” communicable disease pursuant to The Disease Control Regulations 4 and in late 2020, an amendment was made to The Disease Control Regulations 5 pursuant to The Public Health Act, 1994 6 granting the Minister of Health the ability to make Public Health Orders (PHOs) in response to COVID-19 pandemic. [3] Mr.

Keough is charged with violating these PHOs 7 as well as trespassing, specifically:

a) by failing to wear a face covering while in an enclosed setting specifically the Foam Lake Co-op food store on December 16, 2020, February 26, 2021, March 9, and March 17, 2021 contrary to

section 61 of The Public Health Act, 1994 ;

b) and

b) by trespassing at the property of the Foam Lake Co-op food store on February 26, 2021, and March 17, 2021 contrary to

section 14 of The Trespass to Property Act . 8 2 Declaration of a State of Emergency Throughout the Province of Saskatchewan to Address the COVID-19 Public Health Emergency , OC 102/2020 . 3 Renewal of Declaration of a State of Emergency throughout the Province of Saskatchewan to Address the COVID-19 Public Health Emergency , OC 543/2020 ; Renewal of Declaration of a State of Emergency throughout the Province of Saskatchewan to Address the COVID-19 Public Health Emergency , OC 60/2021 ; Renewal of Declaration of a State of Emergency throughout the Province of Saskatchewan to Address the COVID-19 Public Health Emergency , OC 131/2021 . 4 The Disease Control Amendment Regulations, 2020 , Sask Reg 159/2020 . 5 The Disease Control Regulations , RRS c P-37.1, Reg. 11 (Dec. 2020), s 25.2 6 The Public Health Act,1994 , SS 1994, c P-37.1 [ The Public Health Act, 1994 ]. 7 Public Health Order Face Coverings , December 10, 2020 , Public Health Order Face Coverings , February 18, 2021 . 8 The Trespass to Property Act , SS 2009, c T-20.2 [ The Trespass to Property Act ]. [ 38 ] What is significant about Keough for the purpose of the matters before me is that it shows, in the citations in the footnotes, that various of the government’s responses to COVID-19 occurred by way of Orders in Council and regulations, which I am permitted to take judicial notice of by virtue of the Act , notwithstanding the defendants’ position regarding the same. [ 39 ] However, no such Orders, etc. were referred to before me, nor was I directed to them.

In my view, this is counsel’s obligation. As a matter of general procedure, it is expected that counsel will formulate a theory and then present evidence and law in support of that theory. It is not expected that counsel will simply present a theory and require the Court to find the facts to support it, even if those are facts of which the Court can take judicial notice.

The Court is expected to know the law and, if necessary, go beyond counsel’s research and submissions to ensure that decisions are made according to law; the Court is not expected, however, to search through all facts of which judicial notice may be taken, in the hope of finding facts which support a litigant’s theory: that is the task of the litigant and their counsel, and for the Court to do so would be to descend into the fray and act as counsel. [ 40 ] As this is the defendants’ application, the onus is on them to provide evidence to support it; in this case, to refer me to facts of which I can take judicial notice, and which provide a basis for the defendants’ theory regarding the Charter breach.

They have not done so. Their application would therefore fail on this basis in any event. Conclusion [ 41 ] I find, therefore, that Jordan does not address the time to trial for provincial ticket offences. Although s. 11(

b) of the Charter applies to such offences, I am satisfied that whatever the applicable limit might be in such cases, it has not been breached in the matters before me or, alternatively, the defendants have not established any prejudice from the delay. I accordingly dismiss the defendants’ application. [ 42 ] In the event that I am wrong in concluding that Jordan does not apply, then I would dismiss the application for lack of an evidentiary foundation, the burden of providing which was on the defendants.

In light of that lack of evidentiary foundation, I offer no opinion as to the merits of the substantive argument which the defendants sought to raise. ______________________________ Q.D. Agnew, J