Her Majesty the Queen - v. -, 2020 SKPC 17

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 17 Date: April 6, 2020 Information: 991013290 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Thomas Adam Masiowski Appearing: Mr. Barrie W. Stricker For the Crown Mr. Ronald P. Piché For the Accused JUDGMENT S.I.

ROBINSON, J [ 1 ] Thomas Adam Masiowski of Prince Albert, Saskatchewan stands charged that he did on May 20, 2017, at Prince Albert have the care or control of a motor vehicle while his blood alcohol content exceeded 80 milligrams of alcohol in 100 milliltres of blood (“over 80”), contrary to sections 253 and 255 of the Criminal Code . [ 2 ] The accused’s trial commenced before me at Prince Albert on October 13, 2017. By agreement, a voir dire to determine certain Charter issues raised by the defence was blended into the trial proper.

When the Crown closed its case, the defence elected not to call evidence on either the voir dire or the trial proper. The matter was then adjourned from time to time for argument. On March 16, 2018, I handed down my decision acquitting the accused on his over 80 charge on the grounds that a certificate of a qualified technician relied upon by the Crown pursuant to paragraph 258(1) (

g) of the Criminal Code was inadmissible in evidence. I found the certificate

inadmissible on the basis that the Crown had not proven that the accused had been given reasonable notice of the Crown’s intention to rely upon the certificate at trial. [ 3 ] The Crown appealed my decision acquitting the accused. In a fiat dated June 26, 2019, the Honourable Mr. Justice R.C. Mills of Saskatchewan’s Court of Queen’s Bench ruled that I had erred in law in finding that the certificate of the qualified technician was inadmissible. In the last paragraph of his ruling, paragraph 16, Mr.

Justice Mills wrote regarding my error: This error results in the matter having the appeal being granted and the matter being returned to the Provincial Court Judge for the purpose of determining on the whole of the evidence including the certificate whether the Crown has proven beyond a reasonable doubt that he was guilty of the charge.

There is no need for a new trial while all the documentation and evidence had been received and there is no issue before me other than the issue of service which I have identified the error occurring. [ 4 ] In an appeal document filed in the Saskatchewan Court of Appeal on July 16, 2019, the Crown appealed the decision of Mr. Justice Mills on the grounds that he had erred in failing to order a new trial for the accused. The Crown then abandoned this appeal, and the matter came back to me for continuation at Prince Albert on February 28, 2020.

No further evidence was tendered on that date, but I heard further argument from Crown and defence. [ 5 ] On behalf of the accused, defence counsel has presented two main arguments: 1. The accused’s right under

section 11(

b) of the Charter to be tried within a reasonable time has been breached; and 2. The accused’s case is a transitional case covered by the new drinking and driving provisions of the Criminal Code that came into effect on December 18, 2018, and, the Crown has failed to prove compliance with new subsection 320.31(1) of the Criminal Code . TRIAL WITHIN A REASONABLE TIME [ 6 ] The defence argues that the accused’s right under

section 11(

b) of the Charter has been violated and that an appropriate remedy is a judicial stay of the accused’s over 80 charge. [ 7 ] It is true that considerable time has elapsed from the time the accused was first charged to today’s date.

It is therefore useful to review certain dates: May 29, 2017 Information sworn June 20, 2017 First appearance, matter adjourned with warrant held June 23, 2017 Adjourned at defence request June 28, 2017 Crown proceeds summarily, not guilty plea, adjourned for trial October 13, 2017 Trial proceeds, adjourned for argument to December 1, 2017 December 1, 2017 Matter further adjourned for argument December 11, 2017 Matter further adjourned for argument, defence request January 12, 2018 Matter further adjourned for argument, defence request January 26, 2018 Argument heard, adjourned for decision March 16, 2018 Decision delivered, accused found not guilty May 7, 2018 Accused in receipt of Crown appeal of not guilty verdict June 26, 2019 Mr.

Justice Mills allows Crown appeal of not guilty verdict, matter remitted to Provincial Court July 16, 2019 Crown files appeal in the Court of Appeal re Mr.

Justice Mills’s decision to remit matter back to Provincial Court October 1, 2019 Crown abandons appeal to the Court of Appeal February 28, 2020 Matter back in Provincial Court for continuation, final arguments presented by counsel, adjourned for decision to March 24, 2020 March 24, 2020 Matter further adjourned for decision to April 6, 2020, due to accused being in Covid-19 isolation [ 8 ] The total delay from the date the Information charging the accused was sworn (May 29, 2017) to today’s date (April 6, 2020) adds up to 1,043 days, or two years, 10 months and eight days. [ 9 ] In R v Jordan , 2016 SCC 27 , [2016] 1 SCR 631 [ Jordan ], the Supreme Court of Canada put forward a new framework for dealing with applications under

section 11(

b) of the Charter . Regarding the new framework, the majority, at paragraphs 46 through 49, wrote:

[46] At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going totrial in the provincial court after a preliminary inquiry). [47] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay ispresumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances.

If itcannot, the delay is unreasonable and a stay will follow. [48] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable toexceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable.To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and(2) the case took markedly longer than it reasonably should have.

We expect stays beneath the ceiling to be rare, and limited to clearcases. [49] . . . As we will discuss, defence-waived or -caused delay does not count in calculating whether the presumptive ceiling has beenreached — that is, such delay is to be discounted. A. Delay Preceding Accused’s Initial Acquittal [10] In analyzing the time the accused’s case has taken, it is useful to look first at the initial stage that ran from May 29, 2017,when the accused was first charged, to March 16, 2018, when I found him not guilty of his charge. This period amounted to 291 days, orjust under 10 months.

From this period, it is necessary to subtract delay that was either waived by the accused or caused by him. I am ofthe view that the delay periods waived or caused by the accused are:

a) From June 20, 2017, to June 28, 2017, a total of eight days, for early adjournments requested by defence;

b) From August 30, 2017, to October 5, 2017, a total of 36 days, resulting from defence counsel declining the Court’s offerof a trial date on August 30;

c) A period of 21 days following the trial on October 13, 2017, which period was the time defence counsel suggested hewould need to file written material with the Court and the Crown in support of defence arguments on the trial issues; and

d) From December 11, 2017, to January 26, 2018, for a total of 46 days, representing adjournments requested by defencecounsel prior to argument being held on the January 26 date respecting the trial issues. [11] These delays which can be attributed to the defence add up to 111 days. I realize the 111 days exceed the 44 days of defencedelay that defence counsel has acknowledged in his written brief. However, scrutiny of the court record suggests that 111 days is a moreappropriate figure.

When these 111 days are subtracted from the 291 days elapsing from when the accused was charged to when Iinitially acquitted the accused, we are left with 180 days of delay. [12] I note that the 180 days of delay includes the period from January 26, 2018, to March 16, 2018, a total of 21 days, whichperiod resulted from my adjourning for decision after hearing arguments from Crown and defence. In the recent case of R v K.G.K, 2020SCC 7 [K.G.K.], para 3, the Supreme Court of Canada, confirmed that the protection provided by

section 11(

b) of the Charter extends tothe date sentence is imposed. However, Mr. Justice Moldaver, writing on behalf of eight of the nine panel justices, went on to say, “. . . I am of the view that the ceilings in Jordan, beyond which delay is presumed to be unreasonable under s. 11(b), apply to the end of theevidence and argument at trial, and no further. They do not include verdict deliberation time.” Accordingly, while the 21 days followingJanuary 26, 2018, must be considered, it should not be part of any presumptive ceiling calculations. If I subtract the 21 days from 180days, I am left with 159 days. B.

Delay Caused by Crown Appeals [13] Further delay in this case resulted from the Crown appeals taken. My initial decision acquitting the accused was on March16, 2018. The Crown then successfully appealed my decision before Mr. Justice Mills who allowed the Crown appeal on June 26,2019. The Crown then appealed the decision of Mr. Justice Mills on the basis that he should have ordered a new trial rather thanremitting the case back to me. The Crown then abandoned that appeal on October 1, 2019.

That period from March 16, 2018, toOctober 1, 2019, was one year, two months and 17 days, or a total of 442 days. [14] In the case of R v Potvin, (SCC), [1993] 2 SCR 880 [Potvin], the Supreme Court of Canada dealt with theissue of whether delay resulting from appeal proceedings should be part of a

section 11(

b) analysis. In that case, Mr. Justice Sopinka forthe majority held that

section 11(

b) does not apply to delay flowing from appeal proceedings saying, at paragraph 59, “that as a generalrule ‘any person charged’ under s. 11 does not include an accused who is a party to an appeal.” [15] In the Potvin case, at paragraph 66, Mr. Justice Sopinka indicated that if a matter is remitted for re-trial following an appeal,then an accused reverts to having the status of a person charged. He also suggested that “the constitutional clock should be rewound atthe time of the order by the appellate court.” Defence counsel has argued, however, that the clock should not be rewound to zero.

In hiswritten brief and argument, he has referred to the case of R v Windibank, 2017 ONSC 855 [Windibank] from the Ontario Superior Courtof Justice where a re-trial had been ordered following an appeal. In Windibank, J.P.R. Howard, J found, at paragraph 61, thatnotwithstanding any confusion in the post-Potvin jurisprudence, “. . . the more authoritative position later emerged that the constitutional

clock is not rewound to zero but, rather, rewound only to where it was before the appeal, thus including the period of time preceding the appeal in the s. 11(

b) analysis.” [ 16 ] Recently, in the case of R v J.E.V. , 2019 ABCA 359 [ J.E.V. ], the Alberta Court of Appeal also dealt with how to calculate delay when a re-trial has been ordered following appeal. It took a different view than the judge in Windibank and found that the clock should indeed be rewound to zero after a new trial has been ordered but with an expectation that the new trial will proceed expeditiously. [ 17 ] The J.E.V. case is persuasive authority, and I would be inclined to follow it in the case of a re-trial situation.

However, a distinction must be drawn between a case where an appellate court has ordered a re-trial and a case where, as here, an appellate court has sent a case back to the trial court for continuation. Mr. Justice Mills remitted the case back to me for continuation and conclusion rather than for a full re-trial. That being so, it is proper for me to take into account the delay preceding the resumption of the accused’s proceedings. [ 18 ] When Mr. Justice Mills allowed the Crown’s appeal against acquittal on June 26, 2019, the accused once again had the status of a person charged with an offence.

The delay clock would thus have started running again. However, soon after, on July 16, 2019, the Crown made a further appeal to the Court of Appeal. Would this have again stopped the delay clock? In my view, it would not have since that particular appeal did not change the status of the accused being a “person charged with an offence” within the meaning of

section 11(

b) of the Charter . So, with the exception of any delay caused or waived by the defence, I find that the period from June 26, 2019 to when I heard final submissions from Crown and defence on February 28, 2020 should be added to the delay preceding the accused’s original acquittal. [ 19 ] After the Crown abandoned its appeal to the Court of Appeal on October 1, 2019, there was some delay in getting the matter back before me for the continuation of the accused’s trial.

Defence counsel concedes that the delay between December 6, 2019, and February 28, 2020, or 84 days, can be attributed to the defence since the February 28 was the first date that fit defence counsel’s schedule. [ 20 ] The period from Mr. Justice Mills’s ruling on June 26, 2019, to February 28, 2020, totals 247 days. Subtracting the 84 days that can be attributed to the defence, we are left with 163 days. [ 21 ] From the time I heard counsels’ submissions on February 28, 2020, to today’s date, a further 38 days have elapsed.

However, at least in the context of the Jordan framework, I need not consider this time period for the reasons given in K.G.K . [ 22 ] So, if the 159 days of delay that preceded the start of the accused’s trial are added with the 163 days of delay calculated since the accused’s case was remitted back to me, we are left with a total of 322 days, a period just under 11 months. [ 23 ] The 322 days of delay falls well below the presumptive ceiling referred to in Jordan . As such the burden is on the defence to show that the delay was unreasonable.

To show unreasonable delay, the defence must, as set out in Jordan , establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. On the facts before me, I cannot find that the defence has met this burden. Regarding the first requirement, I have no particular concern with the defence’s efforts to expedite the proceedings.

However, regarding the second requirement, the defence has not established that the case has taken “markedly longer” than it reasonably should have. [ 24 ] A common problem arising from trial delay is that available evidence can deteriorate or even disappear with the passage of time. If it can be shown that delay has caused the deterioration or loss of evidence, a court might find that the delay was markedly longer than what was reasonable.

In the present case, however, the trial evidence was taken within 4 ½ months—a reasonably short time frame. [ 25 ] Case-specific concerns may affect determination of whether a case has gone on markedly longer than it should have. In his affidavit in support of his

section 11(

b) application, the accused referred to the stress that his charge has caused him. He also refers to his occupation as a lawyer, and the fact that the Law Society of Saskatchewan has been in frequent contact with him regarding his charge. I can appreciate the stress that an outstanding criminal charge can bring to a person’s everyday life, especially if that charge is outstanding for some considerable time. That said, however, I cannot conclude that the stress felt by the accused is such as to make the delays in this case unreasonable. [ 26 ] Given the reasons set out above, I must conclude that the accused has not established that he has been denied his right under

section 11(

b) of the Charter to a trial within a reasonable time. His application for a stay of proceedings as Charter relief is therefore denied. APPLICATION OF

SECTION 320.31 OF THE CRIMINAL CODE [ 27 ] This case commenced before changes to the Criminal Code ’s drinking and driving laws came into effect on December 18, 2018. Accordingly, defence counsel argues, the case is a “transitional” one where the accused is entitled to any benefit flowing from changes to the laws. [ 28 ] The recent changes to Canada’s drinking and driving laws are set out in Bill C-46, which received Royal Assent on June 21, 2018 and which, as mentioned, came into effect on December 18, 2018.

In general terms, the changes were meant to make our drinking and driving laws more robust and also simplify enforcement provisions. At the same time, the changes maintained procedural safeguards, including safeguards respecting the operation of equipment used to analyze breath samples. New safeguards were set out in what is now subsection 320.31(1) of the Criminal Code . That subsection reads:

320.31(1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if (

a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 ml of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst; (

b) there was an interval of at least 15 minutes between the times when the samples were taken; and (

c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 ml of blood. [ 29 ] Defence counsel argues that his client’s trial is not over and that we are dealing with a transitional case. That being so, his client can expect the Crown to meet the new requirements set out in subsection 320.31(1) . He points out that the certificate of qualified technician tendered by the Crown in this case does not set out the information required by subsection 320.31(1) and, further, the Crown has not established that information by other means.

He argues that the Crown’s case must therefore necessarily fail. [ 30 ] Crown counsel seemed ready to concede that if the accused’s case is indeed a transitional one, then the Crown has failed to meet its case. The Crown’s position was, however, that this is not a transitional case since the accused’s trial came to an end when the Crown closed its case and the defence elected to call no evidence back on October 13, 2017. [ 31 ] Notwithstanding Crown and defence’s capable arguments on the issue of whether or not the accused’s trial has ended, I do not think I have to decide that issue.

This is because Parliament, in passing Bill C-46, expressly addressed the question of when subsection 320.31(1) applies. As the first

section under the heading “Transitional Provisions”,

section 32 of Bill C-46 (now

chapter 21 of Statutes of Canada 2018 ) reads: 32(1)

Section 320.34 [relating to disclosure of subsection 320.31 compliance] of the Criminal Code , as enacted by

section 15 of this Act, applies in respect of any application for the disclosure of further information that is made on or after the day on which that

section 15 comes into force if the sample or samples to which the application relates were taken before that day.

(2) Subsection 320.31(1) of the Criminal Code , as enacted by

section 15 of this Act, applies to the trial of an accused that is commenced on or after the day on which that

section 15 comes into force if the sample or samples to which the trial relates were taken before that day [emphasis added]. [ 32 ] Clearly, the accused’s trial commenced before December 18, 2018, the date when subsection 320.31(1) came into force. Therefore, based on a plain reading of

section 32 of Bill-46, I must conclude that subsection 320.31(1) has no application to the accused’s case and that the Crown is under no obligation to meet the requirements set out in that subsection. As such, the certificate of qualified technician tendered by the Crown on October 13, 2017, serves as proof of the accused’s blood alcohol concentration being over 80 when he had the care or control of a vehicle on May 20, 2017.

CONCLUSION [ 33 ] Having found that the certificate of qualified technician proves that the accused’s blood alcohol concentration was over 80 at the time he had care or control of a vehicle on May 20, 2017, I find him guilty on the charge before me. [ 34 ] I wish to thank both Mr. Stricker and Mr. Piché for both helpful written briefs and their oral submissions in this case. __________________________________________ S.I. Robinson, J