Her Majesty the Queen - v. -, 2020 SKPC 25

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2020 SKPC 25 Date: June 11, 2020 Information: Y396611 Location: Pelican Narrows _____________________________________________________________________________ Between: Her Majesty the Queen - and - T.S.H. Appearing: Mr. John Syrnick For the Crown Mr.

Ron Piche For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act DECISION ON TRIAL DELAY APPLICATION M. MCAULEY, J INTRODUCTION

[ 1 ] Youth Information Y396611 sworn on August 13, 2018 alleges that the accused youth, T.S.H, committed the following offences: Count 1: on or between the 1 st day of March A.D. 2017 and the 30 th day of April A.D. 2017 at Pelican Narrows in the Province of Saskatchewan, did commit a sexual assault on S.C. contrary to

Section 271 of the Criminal Code ; Count 2: on or between the 1 st day of March A.D. 2017 and the 30 th day of April A.D. 2017 at Pelican Narrows in the Province of Saskatchewan, did for a sexual purpose touch S.C. a person under the age of sixteen years directly with a part of his body, to wit his hand contrary to

Section 151 of the Criminal Code ; Count 3: on or between the 1 st day of March A.D. 2017 and the 30 th day of April A.D. 2017 at Pelican Narrows in the Province of Saskatchewan, did commit a sexual assault on M.G.M. contrary to

Section 271 of the Criminal Code ; Count 4: on or between the 1 st day of March A.D. 2017 and the 30 th day of April A.D. 2017 at Pelican Narrows in the Province of Saskatchewan, did for a sexual purpose touch M.G.M. a person under the age of sixteen years indirectly with a part of his body, to wit his penis contrary to

Section 151 of the Criminal Code ; and Count 5: on or between the 1 st day of March A.D. 2017 and the 30 th day of April A.D. 2017 at Pelican Narrows in the Province of Saskatchewan, did commit an assault on H.P.C. contrary to

Section 266 of the Criminal Code . HISTORY OF THE PROCEEDINGS [ 2 ] The criminal charges are alleged to have occurred between March 1, 2017 and April 30, 2017, with the Information sworn on August 13, 2018, 15 months and 15 days later from the last alleged incident. [ 3 ] Crown and defence agree that the history of the court proceedings taken directly from the endorsements and the court audio recordings are accurate. There are no transcripts of the proceedings.

While the history of the court proceedings is not at all complex, there do exist a few contentious issues with respect to waiver of delay. [ 4 ] The criminal charges arose as a result of an alleged sexual assault approximately 15 months and 15 days prior to the Information being sworn. T.S.H. was provided with a Promise to Appear in Pelican Narrows, Saskatchewan Provincial Court for October 15, 2018. [ 5 ] On October 15, 2018 in Pelican Narrows, the first appearance for the accused, Crown indicated they were proceeding by way of Indictment. Legal Aid counsel appeared as agent for Mr.

Piche who had filed a designation of counsel with the court. The accused was not present and the matter was adjourned to November 19, 2018 for plea. [ 6 ] On November 19, 2018, the Crown appeared as agent for Mr. Piche and adjourned the matter to December 17, 2018 for plea indicating that counsel and accused were discussing the charges. [ 7 ] On December 17, 2018, the accused was not present with Mr.

Piche appearing by phone and adjourning the matter into Prince Albert Provincial Court on December 27, 2018 for plea. [ 8 ] On December 27, 2018, Crown requested a publication ban regarding the names of the complainants and the matter was adjourned back to Pelican Narrows Provincial Court on January 8, 2019 for plea.

[9] On January 8, 2019, the accused was not present again with Mr. Piche appearing by phone. The matter was adjourned toFebruary 5, 2019 for plea. [10] On February 5, 2019, Ms. Oberholzer appeared by phone as agent for Mr. Piche. The accused was present in court along withan adult relative. Not guilty pleas were entered on all five counts and the matter was scheduled for a full day trial with seven Crownwitnesses for September 17, 2019. Ms. Oberholzer waived delay. Mr. Piche does not agree he had or gave instructions to waive delay. [11] The trial scheduled for September 17, 2019 did not proceed.

The Crown brought the matter forward to September 16, 2019 torequest an adjournment as the mother of one witness did not have transportation to attend the trial. The mother was not a Crownwitness. Mr. Syrnick acted as agent for Mr. Piche indicating that it was a joint request for the adjournment and that defence waswaiving delay. Again, Mr. Piche denies waiving delay for the adjournment. A new trial date of December 18, 2019 had already beenagreed upon and the new trial was scheduled accordingly. [12] The trial scheduled for December 18, 2019 also did not proceed as the mother of one of the witnesses died.

The matter wasbought forward to be spoken to on December 16, 2019 with Mr. Piche appearing by phone. A new trial date of June 16, 2020 was thenselected. Mr. Piche did not waive delay. [13] The accused then brought an application for a stay of proceedings on February 7, 2020 alleging that his right to be tried withina reasonable time has been breached contrary to s. 11(

b) of the Canadian Charter of Rights and Freedoms [Charter]. NATURE AND PURPOSE OF RIGHT [14]

Section 11(

b) of the Charter provides: “Any person charged with an offence has the right…to be tried within a reasonabletime.” In R v Morin, (SCC), [1992] 1 SCR 771 [Morin], the Supreme Court stated that s. 11(

b) primarily aims to protectthe individual rights of the accused. The individual rights in question are the right to security of the person, the right to liberty, and theright to a fair trial. [15] In R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 [Jordan], the Supreme Court reiterated that “the right to be tried within areasonable time is central to the administration of Canada’s system of criminal justice… . An unreasonable delay denies justice to theaccused, victims and their families, and the public as a whole” (at para. 19). [16] The Supreme Court proceeded to introduce a new framework for the s. 11(

b) analysis, which seeks to simplify the analysisand provide incentives for all parties to proactively pursue a timely resolution of criminal cases. JORDAN AND ASSESSING REASONABLE DELAY [17] The new framework in Jordan for s. 11(

b) can be summarized as follows at para. 105: • There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases triedin the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling. • Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on thebasis of exceptional circumstances.

Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseenor reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstances relates to a discrete event, thedelay reasonably attributable to that event is subtracted. If the exceptional circumstances arises from the case’s complexity, the delay isreasonable. • Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must

establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case tookmarkedly longer than it reasonably should have. • For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties’reliance on the previous state of the law. [18] In R v Coulter, 2016 ONCA 704, 340 CCC (3d) 429 the Ontario Court of Appeal provided a

summary of the Jordanframework for analysis of delay as follows: (at para.’s 34-40)

(1) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

(2) Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

(3) Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

(4) If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown mustestablish the presence of exceptional circumstances (Jordan, at para. 47). If it cannot rebut the assumption, a stay will follow (Jordan, atpara. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para.71).

(5) Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determiningwhether the presumptive ceiling has been reached (Jordan, para. 75).

(6) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complexsuch that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

(7) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable(Jordan, para. 48).

(8) The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the“Transitional Cases”) (Jordan, para. 96) [19] As T.S.H. is a young offender with his matter being tried in the Provincial Court, the presumptive ceiling is 18 months(Jordan, at para. 46). TOTAL DELAY [20] The criminal charges are alleged to have occurred between March 1 and April 30, 2017, with the Information sworn onAugust 13, 2018, 15 months and 15 days later from the latest incident.

The Court is required to examine the period from the charge tothe end of the trial, charge means the date on which the Information is sworn or an indictment is preferred (see R v Kalanj, (SCC), [1989] 1 SCR 1594 at p 1607). [21] Information Y396611 was sworn on August 13, 2018 which is the date of the charge. T.S.H.’s trial was scheduled to proceedon June 16, 2020. The total delay in T.S.H.’s matter is 22 months. DEFENCE DELAY [22] The Crown submits that defence is responsible for two delays: (

i) March 20, 2019 to September 17, 2019 – a period of six months as a result of Ms. Oberholzer waiving of delay on behalf ofMr. Piche. (ii) September 17, 2019 to December 18, 2019 – a period of three months as a result of Mr. Piche waiving of delay and therebeing a joint request for the adjournment.

[ 23 ] First, I will deal with the alleged defence delay from March 20, 2019 to September 17, 2019. Not guilty pleas were only just entered on February 5, 2019. Crown submits that the day of March 20, 2019, a mere month and 14 days later, was open for the Court to

schedule this sexual assault trial involving three youth complainants. I listened to the audio and March 20, 2019 was indeed a day that was open to the court and Mr. Piche was not available. The Crown did not confirm they were available either but instead indicated they had at the minimum two DVD videos to play as part of the evidence which would take a minimum of three hours. Crown also indicated there would be seven witnesses with four to five of them being young persons.

I take this to mean that the Crown also would not have been available as they indicated they would require a full day trial due to the complexity dealing with young witnesses. When dealing with the waiver of delay, the actions constituting “defence delay” are limited to clear and unequivocal waiver or deliberate delay tactics ( Jordan , para. 61 ).

Neither actions were present here. [ 24 ] Regardless if the Crown had stated they would have been in a position to proceed on March 20, 2019, I find it problematic they were prepared to run a full day trial of this nature a month and 14 days later from the date of the entering of the pleas and still be in a position to subpoena seven witnesses with four to five of them being young children. In addition, DVD videos were to be played as part of the evidence on sensitive charges.

However, even if that were the case, I find it highly prejudicial to expect any defence counsel to be prepared to proceed to trial in that short period of time especially when dealing with young witnesses and considering the nature of the charges. [ 25 ] Ms. Oberholzer appeared as agent for Mr. Piche on February 5, 2019 and she waived delay. Mr. Piche does not agree that he would have given instructions to waive delay in these particular circumstances. Mr.

Piche concedes there may have been a three month window where the court “could” have had other available trial dates where he may not have been available but he is adamant he would not have agreed to an automatic waiver of delay from March 20, 2019 onward. [ 26 ] In any event, I find that March 20, 2019 would not have been available for the Crown either due to the nature of the charges and the length of time required to go over the DVD videos. The Crown did not indicate on the record either whether they were available but rather mentioned the complexity of the trial.

The next available trial date was September 4, 2019 as noted in the audio of the court proceedings. There were no earlier trial dates available prior to September 2019. [ 27 ] R v Godin , 2009 SCC 26 at para 23 , [2009] 2 SCR 3, provides insight into defence counsel unavailability. In Godin , the Court held that it was an error to attribute delay to the defence as soon as a single available date is offered to defence counsel and not accepted. The court noted that s. 11 (

b) requires reasonable availability and cooperation but does not require defence counsel to “hold themselves in a state of perpetual availability.” [ 28 ] I cannot find defence responsible for a six-month delay where there is no suggestion he was being unreasonable in rejecting an earlier date such as in this situation. Not being available for a trial one month and 14 days after pleas were just entered regarding serious charges is not unreasonable.

There were also no other available trial dates prior to September 4, 2019. [ 29 ] Second, I will deal with the alleged defence delay from September 17, 2019 to December 18, 2019. It was a Crown request for the adjournment of the September 17, 2019 trial as the mother of one of the witnesses did not have transportation. The mother was not a Crown witness. Crown acted as agent for Mr. Piche and a new trial date of December 18, 2019 was ultimately selected. Crown advised that this was a joint request for the adjournment and defence was waiving delay from September 17, 2019 to December 18, 2019. Mr.

Piche did not appear by phone to speak to it. [ 30 ] Mr. Piche denies waiving delay as he submits he was prepared to proceed with the trial on September 17, 2019. He advises it was a Crown request to adjourn and not his. Mr. Piche agrees to consenting to the adjournment but not to waiver of delay and submits that consenting and waiving are two entirely different matters. Without the verbal waiving of delay on the record by Mr. Piche, I am not prepared to accept a waiver on his behalf by the Crown. Unless Mr. Syrnick has proper documentation to indicate Mr.

Piche was agreeable to such a waiver, which has not been filed with the court, I will not attribute this three-month period as defence delay. The waiver of defence delay must be clear and unequivocal ( Jordan , at para. 65 ). [ 31 ] In addition, there is a four-month period of delay not mentioned by either Crown or defence from the first court date of October 15, 2018 up to when pleas were entered on February 5, 2019. As we are dealing with a young accused with no prior criminal record, his struggles to navigate the system and in finding legal counsel does not come as a surprise.

In addition to finding legal counsel, there is still the time lapse of obtaining disclosure and providing instructions. Mr. Piche filed a Psychologist Report with the court indicating that T.S.H. is a young person who has been identified as having a significantly delayed cognitive development where he has been placed in the extremely low intellectual classification range in comparison to other students his same age. The Crown did not oppose the filing of this Report. Consequently, I find the four months neither excessive nor unreasonable in the circumstances.

These are “defence actions legitimately taken to respond to the charges” ( Jordan , at para. 65 ).

[ 32 ] R v Anderson , 2013 SKCA 92 at para 103 , 423 Sask R 61 is instructive when dealing with submissions of legal counsel where no evidence has been called. While Mr. Piche’s submissions with respect to the Psychologist Report are not to be mistaken as evidence, his representations can be relied upon as an officer of the court: [103] In this case, after Crown counsel had finished his submissions, defence counsel suggested that his submissions were not evidence. When the trial judge offered to order the Crown to produce the video if available, defence counsel acknowledged that he had no quarrel with Crown counsel’s representation that the video did not exist but rather with his

summary of the two witnesses which could contradict whether the evidence was collected. The defence here was correct. If the Crown wanted the Court to consider the evidence of the two witnesses, they should have testified. However, the trial judge did not rely on the

summary of the evidence of the two witnesses. Rather, he relied on the representations of the prosecutor as an officer of the Court that the video did not exist. [ 33 ] After assessing defence delay and finding none, the net delay is still 22 months. EXCEPTIONAL CIRCUMSTANCES [ 34 ] In general, exceptional circumstances fall under two categories: (

i) Discrete events; and (ii) Particularly complex cases ( Jordan , at para. 71 ) [ 35 ] Defence submits that the case is not particularly complex and does not involve expert or forensic evidence. The main issue is whether there exists a discrete event. Crown submits that the complexity of the case relates to the playing of DVD videos in addition to the testifying of four to five young witnesses on sensitive matters. The Crown also attributes this complexity to the reason for the pre- charge delay. [ 36 ] Mr.

Syrnick submits the death of the mother of one of the witnesses was a discrete event that the Crown had no control over. As a result, exceptional circumstances would justify the resulting delay of six months from the period of December 18, 2019 to June 16, 2020. I also agree that the Crown has no control over such an event and that the recent death of a mother would affect a child significantly enough so as to impact their ability to effectively testify in a stressful trial. There was only one trial date in April 2020 where the Court could have accommodated one small trial.

However, as there were potential Charter issues, four to five young witnesses testifying and the playing of DVD videos, the Court was unable to

schedule this trial into that date. As a result, June 16, 2020 was the earliest to reschedule this matter. [ 37 ] However, defence submits that there was another reason the Crown requested an adjournment of the trial and it had to do with the unavailability of one police officer. Defence indicates that the trial may not have proceeded regardless of the mother’s untimely passing. I listened to the audio on this date and there was no mention of the unavailability of a police officer witness. Mr.

Piche dealt with another client prior to T.S.H. whose trial matter was also not proceeding and was adjourned to the same trial date as a result of a police officer not being available to testify but that witness was not pertaining to T.S.H. [ 38 ] Another potential exceptional circumstance is the delay from September 17, 2019 to December 18, 2019 when the mother of one of the witnesses did not have transportation to attend the trial. Defence submits that this would not and should not qualify as an exceptional circumstance as the mother was not a Crown witness. I agree with Mr.

Piche as adjourning a trial of this nature when there were other alternatives available such as a Victim Services worker assisting the young witness. The trial could have proceeded with adequate support in place for the witness. [ 39 ] In conclusion, I find that the trial should not have proceeded as a result of the untimely death of the mother of one of the witnesses and an aunt to the others. What I do not agree on is the six months the Crown is requesting be deducted from the net delay of 22 months.

To the best of my knowledge, there were no earlier dates available to reschedule this trial due to the length of time required for the young witnesses and the DVD evidence. Therefore, court availability was also a factor. I believe the correct deduction for the exceptional circumstances is three months which leaves the remaining delay of 19 months which falls above the presumptive ceiling.

If I am wrong on that point, I will continue my analysis with respect to pre-charge delay, age and unique circumstances of the young accused. [ 40 ] In addition, the accused’s trial will not be proceeding on June 16, 2020 as a result of COVID-19, the resulting backlog of all

trials and the unavailability of an adequate court room facility. This trial was in the course of being brought forward to reschedule to a later trial date. In custody accused persons will be given priority when rescheduling trial matters for reasons of safety and liberty and T.S.H. is out of custody.

YOUTH STATUS AND ITS EFFECT [ 41 ] Defence submits that in addition to looking at any delay factors by both Crown and the accused, we must also do an overall analysis of the unique circumstances in this case. [ 42 ] When the Court is assessing delay, T.S.H.’s status as a youth is a significant factor that must be considered within the overall analysis. R v KJM , 2019 SCC 55 , 381 CCC (3d) 293 [ KJM ] addressed how the presumptive ceilings set out in Jordan apply to the Youth Criminal Justice Act (YCJA).

The majority confirmed that the presumptive ceilings do in fact apply to youth matters and that there is arguably a greater need for swift justice when the accused is a youth. Moldaver J. promoted a flexible approach, which factors in not only the applicable ceiling, but also the relevant surrounding circumstances (at para. 69): [69] While the presumptive ceilings are a significant

chapter in Jordan , they are not the full story. Jordan established ceilings, not floors. While the ceilings offer a bright-line approach, they are supplemented by a more flexible, case-specific approach to delay below the ceiling. In this way, Jordan marries uniformity with flexibility. [ 43 ] Later at paragraph 72, the majority discussed the importance of timely trials for youth matters: [72] The enhanced need for timeliness in youth cases cannot, in my view, be reduced to a set “youth discount”, and its weight will vary depending on the circumstances.

Nonetheless, it requires as a general rule that youth matters should proceed in a timely manner, and the Crown and the justice system must do their part to ensure this objective is met. This general rule, and the corresponding obligation on the Crown and the justice system to do their part, is already reflected in practice, as youth cases are typically given priority and completed more quickly than adult cases.

Thus, recognizing the enhanced need for timeliness in youth matters as a factor to be considered in determining the reasonable time requirements of a case simply gives effect to what is already happening on the ground. [ 44 ] The analysis must be case specific and the age of the offender must also be considered. T.S.H., a young accused, has waited 22 months for the completion of his trial. Although there were exceptional circumstances relating to one trial date which I took into consideration in deducting from the net delay, he has had to go through the process of two adjournments, nonetheless.

This is an individual who has a significantly delayed cognitive development and this situation would impact him more than the average person his age. I will also take this into consideration in my overall assessment in looking at whether the delay was unreasonable. PRE-CHARGE DELAY AND ITS EFFECT [ 45 ] While there exists potential prejudice to the accused when dealing with lengthy delays, what effect does pre-charge delay have on the Jordan analysis? It is only in exceptional cases that pre-charge delay can be considered in the context of a s. 11 (

b) application, but it is submitted that such delay certainly may be considered where the circumstances warrant it. For example, in R v Piche , 2012 SKQB 471 , 408 Sask R 125 Justice Danyliuk of the Saskatchewan Court of Queen’s Bench commented at para. 17 that: It has been held that when considering post-charge delay, any pre-charge delay may be factored in so as to establish the overall setting in which the post-charge delay occurs.

In other words, pre-charge delay may exacerbate the post-charge delay being relied upon by the defence. [ 46 ] Likewise, in R v M.S. , 2017 MBQB 12 , Justice Dewar of the Manitoba Court of Queen’s Bench noted that it is impossible to assess the reasonableness of post-charge delay without considering the context in which that delay occurred, including the existence of any pre-charge delay. At pp. 28-29, the Court there stated as follows: [64] This is a close case.

When I factor in all of the considerations, this is a case in which the effect of the delay between the date of the charge to trial in respect of the fair trial rights of the accused cannot be measured, but could be significant. Even without putting the case into the context of the delay between 2007 and 2013, the authorities suggest the unreasonableness of the delay. For example, the gross period under review in Godin was 30 months. The gross period under review in Vandermeulen was 36 months, of which 26 months were attributable to the Crown. The gross period under review in George was 39 months.

The gross period under review in Askov was 34 months. Finally, and perhaps most importantly, the gross period under review in a companion case to Jordan , namely, R v Williamson , 2016 SCC 28 , was 35 months. Here, the gross period under review was 44.4 months. Even if I delete the six months for the added inherent delay in this case to take out a reasonable time period from charge to arrest, that still leaves a period of 38.4 months from the

charge to the end of the trial. [65] I acknowledge that in the cases just cited, none involved a lengthy time period between charge and arrest. However, what isdeterminative in this case is the context to which the delay from August 1, 2013 must be assessed. In Morin, Sopinka J. wrote, at p. 789: As I have indicated, this factor requires the court to examine the period from the charge to the end of the trial. Charge means thedate on which the information is sworn or an indictment is preferred (see Kalanj, supra, at p. 1607 [S.C.R.]).

Pre-charge delay may incertain circumstances have an influence on the overall determination as to whether post-charge delay is unreasonable but of itself it is notcounted in determining the length of the delay. [emphasis added] [66] It is impossible to decide this case without acknowledging the existence of the pre-charge delay. It prompts me to resolve all doubtabout the length of the post-charge delay in favour of the accused.

The impact of the post-charge delay on the quality of the evidence tobe laid before the court has further exacerbated the deterioration of the evidence which must have occurred during the seven year periodbetween 2006 and August 1, 2013.

Viewed in that context, a delay of 44.4 months, or even 38.4 months between charge and the end ofthe trial for a case of this nature, is simply too long and outweighs society’s interest in having the case decided on its merits. [67] In the very unique circumstances of this case, the charges against the accused are stayed. [47] In T.S.H.’s case, the pre-charge delay is 15 months and 15 days from the latest incident. Mr. Piche advises that T.S.H.’smother had become aware of these potential charges through her workplace from around the time the investigation commenced.

T.S.H.was then informed of these upcoming charges by his mother. As a result, T.S.H. was in a perpetual state of anxiety waiting to beformally charged. Mr. Piche submits that T.S.H. has been identified as having a significantly delayed cognitive development andcoupled with the stress of anticipating serious charges, has put him in a stressful state of mind. [48] With respect to the cognitive development of T.S.H., the Crown is of the view that this is an issue only relevant to potentialfitness for trial or sentencing and not to the issue of trial delay.

I disagree as the courts have been instructed to conduct an overallassessment when dealing with delay issues involving an accused young person. “While ceilings offer a bright-line approach, they aresupplemented by a more flexible, case-specific approach to delay below the ceiling. In this way, Jordan marries uniformity withflexibility” (KJM, at para. 69). [49] Crown submits that the mother’s knowledge of the upcoming charges should not enter into the equation in determiningwhether pre-charge delay should be given some weight.

If the mother of T.S.H. did inadvertently come upon the knowledge that her sonwas under investigation and that a charge(

s) may be pending against him, she should be duty bound to keep that information strictly toherself within the confines of the workplace and not speak to her son about it. If such inadvertently obtained information caused herstress, that stress is not the “stress” that is applicable to a delay application, but is simply the result of her being in a situation thatallowed her to come, likely improperly, to that knowledge. That stress does not belong to the accused young person who should onlyhave come upon that knowledge when spoken to by the investigating police officer.

The Crown requests that the pre-charge period, ifconsidered, not be given any weight. [50] Since R v Morin, (SCC), [1992] 1 SCR 771 at para 75 [Morin], the Supreme Court has left open the door forpre-charge delay to be addressed on a case by case basis.

Justice Sopinka stated that: “Pre-charge delay may in certain circumstanceshave an influence on the overall determination as to whether post-charge delay is unreasonable but of itself is not counted in determiningthe length of the delay.” [51] In R v Moosomin, 2017 SKQB 182 at para. 26, Justice Smith went on to conclude the following: “In short, there may be someinstances where a pre-charge delay can impact the analysis on a post-charge delay, as mandated by Jordan. [52] I am required to consider the pre-charge delay when considering the overall unreasonableness of the delay.

While pre-chargedelay, in and of itself, is not sufficient to grant a stay of proceedings short of extraordinary cases, Jordan does not refer to pre-chargedelay. Rather, the focus of Jordan is strictly on the institutional delay from when an information is sworn to when the accused facestrial. [53] Defence submits that the case was not particularly complex for delaying the laying of the charges by 15 months and 15 days.

Crown submits that the case was complex as it was difficult attempting to obtain statements from four to five young witnesses. [54] In conclusion, I do find the pre-charge delay significant enough in these circumstances in addition to the net delay of 19months. We have a young offender with a significantly delayed cognitive development dealing with lengthy delays on serious charges.

Iconclude that the pre-charge delay in T.S.H.’s situation, in addition to his young age and a significantly delayed cognitive development,does have an influence on the overall determination as to whether post-charge delay is unreasonable. Although pre-charge delay in andof itself is not counted in determining the length of the delay, I conclude that it is significant enough to render the overall delayunreasonable.

CONCLUSION [55] There are three months of exceptional circumstance delay for me to deduct from the delay in T.S.H.’s matters before thecourt, leaving the remaining net delay of 19 months which falls above the presumptive ceiling.

In addition, I am obliged to take intoconsideration the pre-charge delay of 15 months and 15 days, his young age, his unique circumstances, his significantly delayedcognitive development, institutional delay from December 18, 2019 to June 16, 2020 and the institutional delay as a result of theunfortunate position of having to reschedule his trial once again as a result of COVID-19. [56] The Crown asked the court to consider Society at large’s strong interest in having matters decided on the merits of the case, asfar as is possible.

In Mills v The Queen, (SCC), [1986] 1 SCR 863, Lamer J., in his analysis of the right to be triedwithin a reasonable time under s. 11(

b) of the Charter, referred to the separate individual and collective interests served by timely trialsbut concluded at p.17 that the real purpose of the s. 11(

b) right was to protect the interests of the individual and not of society:

Section 11(

b) enunciates an individual right to be tried within a reasonable time for all persons charged with an offence. I wish toemphasize at the outset that this right is, in its nature, an individual right and has no collective rights dimension. While society may wellhave an interest in the prompt and effective prosecution of criminal cases, that interest finds no expression in s. 11(b), though evidently,incidental satisfaction. The

section is primarily concerned with ensuring respect for the interests of the individual. [57] In these circumstances, this amounts to an unreasonable delay in breach of his

section 11(

b) Charter right to be tried within areasonable time. The just and appropriate remedy, pursuant to section 24(1) of the Charter, is to order a stay of these proceedings. _____________________________________ M. McAuley, J