Her Majesty the Queen - v. -, 2015 SKPC 049

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 049 Date: March 31, 2015 Information: 46739349 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kurtis Aaron Belfour Appearing: C.M. Bliss For the Crown R.P. Piché For the Accused DECISION ON CHARTER APPLICATION Q.D. AGNEW, J 1. Nature of the application [ 1 ] Defence has brought a motion for a stay of proceedings regarding this matter on the basis that the accused’s rights under s. 11(

b) of the Canadian Charter of Rights and Freedoms have been breached. The accused argues that, for a variety of reasons for which the Crown ultimately bears responsibility, he has not been brought to trial within a reasonable time. [ 2 ] Trial is scheduled to commence before me on Tuesday, March 31, 2015. By agreement of counsel, this application was heard on Thursday, March 26, 2015, the hope of counsel being that I would give my decision prior to March 31. I understand that it is their

intention not to bring their witnesses to court that day if I order a stay. This procedure both is logical and efficient. Competent counselcan ensure that the Court has all relevant information on an application such as this, and if a stay is granted, then there is no purpose isinconveniencing the witnesses; perhaps court resources may be used for a different matter, although at such short notice it is admittedlyunlikely in the present case.

As noted by the Supreme Court of Canada in R v DeSousa, (SCC), [1992] 2 SCR 944 atparagraph 17, “. . . in some cases it will save time to decide constitutional questions before proceeding to trial on the evidence.” [3] The only flaw in counsels’ plan is that the application was brought before me very late, and with some evidence of matters havingbeen done in haste. I had to hear this application outside of normal court hours in order to find time for it, and the materials filed bycounsel arrived on my desk just a couple of days before the hearing.

In fact, the 174 pages of transcript and five citations provided bydefence (no actual cases were provided; apparently I was to locate the cases myself in my copious free time) were emailed to the courtclerk’s office barely 24 hours before the hearing was to commence, and were received by me later than that. As a result, although I hadreviewed most of the material provided, I was forced to hear the application without as much preparation as I would have liked.

Giventhat the factual issues are complex and the law is not simple, given that counsel want an answer within a few days, and given that thistrial date has been set since July of last year, it would seem that this application could and should have been made earlier. [4] I told counsel that I would advise whether or not the application was successful via the court clerks’ office by 9:30 a.m. on Monday,March 30, 2015, so they would know their position for the next day, but that I would not be able to provide reasons for that decision untilthe time scheduled for the opening of trial, namely on March 31.

These are those reasons. 2. Chronology [5] For reference in the analysis section, I have labelled the sections that follow as (a), (b), etc. (

a) September 30, 2011 - November 3, 2011 (34 days) [6] Mr. Belfour was charged on September 30, 2011 with having, on that day (1) care and control of a motor vehicle while his ability to operate it was impaired by alcohol or a drug1, and (2) the care and control of a motor vehicle with a blood-alcohol level in excess of 80 mg of alcohol in 100 ml of blood2. He was released that same day, having signed an undertaking committing himself to abstain from theconsumption of alcohol or other intoxicating substances.

There is no indication on the Information that his release conditions were everchanged. [7] The Information was sworn October 4, 2011, and the accused first appeared in court (by counsel) on October 24, 2011. [8] The matter was adjourned twice until, on November 3, 2011, trial was set for July 23, 2012, for a half day. (

b) November 3, 2011 - July 19, 2012 (259 days: 2012 was a leap year) [9] Although trial had been set for July 23, 2012, the earliest trial date available was March 28, 2012; however, defence was notavailable until July 23. As it turned out, trial was brought forward to July 19, 2012. (

c) July 19, 2012 - November 29, 2012 (133 days) [10] At the commencement of the trial on July 19, 2012, defence advised that it might be seeking an adjournment of the trial (1) toobtain Constable Ong, the breath technician, to testify for the defence, and (2) to await the results of a Supreme Court of Canada decision3 with potential bearing on the case. The Crown’s case did not conclude that day. The Crown conducted its examination-in-chief of a Constable Harris, but before defence cross-examined him, Crown counsel concluded that he would seek an adjournment of thetrial in order to call as a Crown witness Cst.

Ong - the same breath technician who defence had been considering calling. There was thenpotentially some time remaining that day for more evidence, but defence asked not to have to cross-examine Cst. Harris until after Cst.Ong had testified. The Court then adjourned the trial, as I read the record, on multiple bases:

(1) for Cst. Ong to be called as a witness by the Crown (although I note that defence had raised the possibility of a defence request for adjournment in order to call him as a defence witness); (2) to await the Supreme Court of Canada’s decision in a related matter; and (3) to allow defence to cross-examine Cst. Harris after the testimony of the breath technician. A continuation date of November 30, 2012 was set. (

d) November 29, 2012 - May 3, 2013 (155 days) [ 11 ] The matter was brought forward on November 29, 2012 at defence request, to apply for an adjournment of the trial. Defence waived delay. The matter was set over to December 10, 2012 to set a new date. [ 12 ] On December 10, 2012 a new trial date was selected of May 3, 2013. Defence confirmed that delay was waived. (

e) May 3, 2013 - May 28, 2013 (25 days) [ 13 ] Trial continued on May 3, 2013. At that time, Cst. Ong was present but Cst. Harris was late. For reasons which are not clear on the transcript, trial did not proceed with Cst. Ong’s testimony; rather, trial adjourned until Cst. Harris appeared, at which time he was cross- examined by defence. The transcript makes it clear that, prior to him testifying, the Court and both counsel were aware of the fact that they had limited time for trial that day; indeed, defence counsel advised that he had a matter scheduled in Prince Albert for 1:30 that afternoon.

It appears that a significant portion of the half-day set on May 3 was lost waiting for Cst. Harris, in order to proceed with his cross- examination. It is not clear, but it seems from the transcript that all concerned had forgotten that the previous adjournment was (in part) so that Cst. Ong could testify prior to Cst. Harris’ cross- examination. [ 14 ] Cross-examination of Cst. Harris was concluded, as was the examination-in-chief of Cst. Ong. At that time, defence advised that he did not wish to begin his cross-examination of Cst.

Ong, as there would not be time to complete it before the trial would have to adjourn for the day. It is not clear from the transcript when this occurred. The only indications are (1) that the Court advised that it would be prepared to sit until 12:30, and (2) defence counsel advised that he expected his cross- examination to be more than 45 minutes. This might mean that this exchange occurred at 11:45; however, given that it would take defence counsel at a minimum 90 minutes to get from the courthouse to Prince Albert for his 1:30 commitment, this exchange might have occurred at 11:15, or at some other time.

It appears that, had Cst. Ong testified first that morning rather than proceedings awaiting the arrival of Cst. Harris, the evidence might have concluded that day. [ 15 ] It is clear that the learned trial judge at the time of this adjournment was concerned to bring the matter back at an early date. The transcript indicates she offered to sit on a date when she would not normally be scheduled to hear trials in order to obtain an earlier continuation date; she also stated that if the matter was going to have to be set “months down the road”, she wanted to be informed so that she could try to change her

schedule in order to accommodate an earlier date. With those provisos and instructions, she adjourned the matter to the trial coordinator’s office to set a continuation date. The endorsement on the Information indicates that counsel were to attend there “forthwith”. [ 16 ] For reasons which do not appear on the record, this did not occur. It is possible that the trial coordinator was not available immediately. In any event, Crown counsel emailed defence counsel just after lunch that day, asking for dates for continuation. Crown continued pressing for dates for over three weeks; defence remained unresponsive. (

f) May 28, 2013 - March 25, 2014 (301 days) [ 17 ] Finally, on May 28, 2013, both counsel appeared before the trial coordinator and a continuation date of January 10, 2014 was chosen. There is no suggestion that either counsel thought to advise the learned trial judge that this matter was being adjourned “months

down the road”, as she had specifically instructed them to do. [18] As an aside, I wish to state that I do not fault the procedure of adjourning to the trial coordinator’s office. It is simply a matter ofefficiency, where possible, to adjourn matters thusly rather than adjourning court for periods which can be a half-hour or more, simply sothat counsel can return with a date and have the trial judge state it on the record. That process wastes the time of the judge, the courtclerk and deputy sheriff, all of whom must remain ready for counsel’s reappearance rather than carrying out other duties.

However, thereare situations in which it would be useful to have the adjournment brought back before the judge, so that the judge can decide whether ornot adjourning to the date selected is appropriate. In almost all cases, it is: the trial coordinators are experienced, and counsel are usuallycooperative, and there is little the judge can add to the process. That procedure, however, relies on counsel carrying out the judge’sinstructions: a process which does not seem to have occurred here. There were two faults. [19] The first was the delay in approaching the trial coordinator.

It may well be, as can happen, that the coordinator was not available atthat time: lunch breaks, illnesses, brief absences can all result in “forthwith” not meaning “immediately”. Since the same thing wouldoccur even if the new trial date was supposed to come back before the Court to be formally set, and since such an event would simplymean that even more people were inconvenienced, I do not see this as objectionable. It becomes so, however, when counsel do not followup promptly.

This occurred here with defence counsel. [20] The second was, apparently, counsels’ joint failure to bring the matter back before the learned trial judge when the new date wasset for “months down the road”, contrary to the judge’s specific directions. She had made it clear to counsel that she wished to avoid thatoutcome, and was willing to try to rearrange her

schedule so as to prevent it. I have no evidence as to what may have happened, but thereis not a shred of evidence, whether in the materials filed by either side, their oral presentations, the transcripts or the endorsements, thateither counsel gave that direction any thought whatsoever when the new date was being set. [21] As noted above, a new date of January 10, 2014 was set. It was subsequently learned that the Crown prosecutor would be onparental leave at that time, and on June 3, 2013 a new date of March 31, 2014 was chosen. However, the matter was brought forward onMarch 25, 2014 to be spoken to. (

g) March 25, 2014 - July 18, 2014 (115 days) [22] On March 25, 2014 the Court (a different judge than the learned trial judge) advised counsel that the learned trial judge was ill, andwas not expected to return to her duties before September of that year. The Court put to both counsel the options of waiting for thelearned trial judge to return, or “assign a new Judge and start all over.” Both counsel agreed to adjourn the matter for the learned trialjudge to continue, and a new date of September 23, 2014 was chosen, for a half-day which was expected to conclude the evidence. (

h) July 18, 2014 - March 31, 2015 (256 days) [23] On July 18, 2014 the Court advised counsel that the Court had recently received a letter from the learned trial judge’s doctor,indicating that she would not be back to work until January (2015). The Court also advised counsel that there was a likelihood that, evenonce the learned trial judge returned to work, she might not be able to do so on a full-time basis for “many months”.

The Crown at thattime applied to have the case heard de novo before a new judge; defence opposed, wishing to await the return of the learned trial judge.The Court vacated the trial date of September 23, 2014 and ordered trial to proceed on March 31, 2015, either as a continuation beforethe learned trial judge, if she was available or, as has turned out to be the case, de novo before a new trial judge. 3. Analysis [24] The seminal case on s. 11(

b) issues is R v Morin, (SCC), [1992] 1 SCR 771. It identifies a number of factors forthe Court to consider in weighing whether or not a delay has been unreasonable: (

i) length of delay, as a threshold issue. In the present case, I calculate the total amount of time from when the accused was charged tothe scheduled trial date to be 1,278 days. This is certainly enough time to trigger s. 11(

b) scrutiny;

(ii) any voluntary and fully-informed waivers by defence of particular periods of time.

In the present case, with the accused havingthroughout the assistance of knowledgeable counsel, I do not consider there to be any issue of “fully informed” with respect to any periodof time noted as being expressly waived by the defence, and indeed counsel did not suggest otherwise; (iii) the reasons for delays, including inherent time requirements (bail hearings, counsel preparation, etc.), actions of the accused(change of counsel, preliminary applications, etc.), actions of the Crown (disclosure delays and other delays which cannot be claimed tobe reasonable), limits on court and other resources; (iv) other reasons, including delays caused by the Court; and (

v) prejudice to the accused, bearing in mind that some degree of prejudice is to be assumed simply from the fact that the accused hasbeen exposed to criminal charges over a prolonged period of time (see R v Godin, 2009 SCC 26 at paragraph 34). [25] I have had the advantage of our Court of Appeal’s careful analysis of delay in R v Wilson, 2013 SKCA 128, particularly paragraphs24 - 36. That decision cites not only the leading cases of R v Askov, (SCC), [1990] 2 SCR 1199, Morin and Godin, butalso a number of other authorities, and analyses the various types of delay in depth: (

i) Inherent delay is “the time necessarily required to move a case forward.” R v Richards, 2012 SKCA 120 at para. 33); (ii) Institutional delay is the period that starts to run when the parties are ready for trial but the system cannot accommodate them(Morin, para. 47). The base guideline established by Morin (para. 55) and confirmed in Wilson (para. 33) is that eight to ten months forthis type of delay in Provincial Court is considered tolerable; (iii) Waived time is the time period(

s) for which the accused expressly waived the delay, and is not included in the calculation at all(Wilson, para. 30); and (iv) The balance is time to be laid at the feet of the Crown. [26] It should be noted that a given period of time does not necessarily have to fit into only one of the above groupings. In R v Boutin,2011 SKQB 265, the Court concluded that delay could be apportioned between Crown and defence because each of them hadcontributed to it (see para. 35). This concept is of particular importance in situations where a particular period of delay is not the fault ofonly one side.

This occurred in the present case, as will be seen below. [27] Bearing the above principles in mind, I turn now to the specific periods of time identified in the chronology: period (a) - this period of 34 days before a trial date was set is a very reasonable amount of time to go from charge to plea, and indeedis very short by comparison to many cases. This is inherent delay, and therefore (provided it is not excessive) not problematic for a s.11(

b) application; period (b) - this period of 259 days is the time from plea to the first trial date. This is institutional delay. The total amount of time isroughly 8.5 months, which is within the Morin guidelines. It should be noted, even so, that the Court was able to accommodate this trialafter only 142 days, or less than five months: it was defence that chose to take a later date; period (c) - 133 days, arising from the adjournment for continuation after the first trial day. Both counsel eventually wanted to hearCst.

Ong’s testimony, although neither had subpoenaed him; defence wanted to await the outcome of the St-Onge Lamoureux decisionfrom the Supreme Court; and defence wanted to rearrange the order of examination and cross-examination of the Crown’s witnesses. Itappears that neither party is blameless in this matter not concluding by the end of the first scheduled trial date. Based on Boutin, I wouldattribute this delay equally to Crown and defence. Accordingly, this period constitutes Crown delay of 67 days;

period (d) - 155 days. Defence explicitly waived delay; period (e) - 25 days. This was caused by defence counsel’s failure to respond to Crown counsel to obtain a new trial date, and counselconceded that this was defence delay. I take this to be waived delay, for the purposes of s. 11(b); period (f) - 301 days. Attribution of this period arises from (

i) the reasons for the adjournment at the end of the second trial date, (ii)the failure of counsel to bring the matter back before the learned trial judge when it was apparent that the new date would be “monthsdown the road”, and (iii) Crown counsel’s need for an adjournment for parental leave. [28] With respect to the first point, it is clear that the cross-examination of Cst. Harris did not proceed on the first trial date because ofdefence counsel’s insistence that Cst. Ong’s testimony be heard first. The learned trial judge agreed.

I assume she consented to thisunusual position as a result of the way the trial had unfolded that day, and I am certainly not going to second-guess her, even were Ientitled to do so as a matter of law. I note, however, that a considerable amount of court time was lost on the first trial date as a result.When the trial resumed on the second trial date, therefore, it is striking that no one, including most particularly defence counsel, spoke ofbringing in Cst. Ong for his testimony. Instead, court adjourned for Cst. Harris to appear, even though Cst. Ong was present in thebuilding.

In the absence of an explanation, which has not been offered, I have to wonder about the sincerity of the concern on the firstdate, which led to trial being adjourned early. The delay on day two led to the evidence not being concluded that day, although of courseI have no way of knowing whether or not it could have been in any event.

Defence counsel had another commitment later that day,although I am certainly not of the view that this necessarily overrides the Court’s ability to sit such hours as it reasonably considersappropriate. [29] With respect to the second point, failure to bring the matter back before the learned trial judge as she had instructed counsel to do,this is a fault which must be laid at the feet of both counsel. The learned trial judge had made it clear that she wanted to have this mattercontinued with some dispatch, and that she was prepared to seek accommodations in her own

schedule in order to do so. She then reliedon both counsel to give her the opportunity to do so if otherwise the next date would be “months down the road”. As it turned out, thenext date chosen was January 10, 2014, from a trial date of May 3, 2013. It should have been obvious to counsel that this was welloutside the period that the learned trial judge was contemplating; it clearly called out for them to comply with her direction and bring itback before her, to attempt to find an earlier date. Neither of them did so.

Given that three weeks had passed since trial, it may be thatthey had both forgotten her direction. Needless to say, this is not an excuse for not complying with the Court’s order. [30] A new date had to be obtained to accommodate Crown counsel’s parental leave. This moved the trial date back 80 days. [31] Weighing all of the above, I would attribute 80 days of this period to the Crown, for parental leave, and the balance 2/3 to defenceand 1/3 to the Crown. Accordingly, the Crown bears responsibility for 154 days. periods (

g) and (h) - 115 days and 256 days respectively. These are the periods of the learned trial judge’s absence due to illness. Ihave combined them because I do not believe there is any significant difference between them for the purposes of analysis. [32] The question of a trial judge’s illness has been addressed by the Supreme Court of Canada in R v MacDougall, (SCC), [1998] 3 SCR 45.

That case points out that it is the Crown’s responsibility to bring an accused to trial, and that where the trialjudge falls ill, it is the Crown’s responsibility to seek to replace them, if appropriate. “If appropriate” is, of course, a difficult standard todefine, and the Crown must tread a fine line, as noted in MacDougall (para. 52): . . . where the trial judge falls ill and is expected to return, the Crown must balance two competing factors: (1) the need to proceed withthe utmost care and caution when considering the removal of a judge seized with a case in order to protect judicial independence andfairness to the accused, and (2) the need to protect the accused's s. 11(

b) rights and prevent undue prejudice to the accused. The practicalquestion is whether the apprehension of a violation of the accused's s. 11(

b) rights has reached the stage where it outweighs the generalrule that the judge seized of a case should conclude it. Where the apprehension of a s. 11(

b) violation outweighs this general rule, theCrown has a duty to apply to remove and replace the seized judge. If the Crown fails to do so, any resulting delay will be counted againstthe Crown in the s. 11(

b) assessment.

[ 33 ] Attribution of delay due to judicial illness is to be treated in one of three ways, depending on when (on the above criteria) the Crown has applied to remove the judge ( MacDougall , para. 61 ): (

i) if the delay occurs before it is reasonable for the Crown to seek to remove the judge, it is inherent delay and therefore neutral ( see R v Shepherd , 2014 SKCA 123 ); (ii) if the delay occurs after that point, it is delay attributable to the Crown, subject to (iii); (iii) to the extent that the delay is due to lack of judicial resources, it will not count against the Crown unless the lack of resources is unreasonable. [ 34 ] The question of when the Crown should have sought to remove the learned trial judge is therefore of critical importance.

Unsurprisingly, the Crown believes that it has made the correct decision. The accused’s position is somewhat more complex. [ 35 ] As the transcript discloses, defence has throughout taken the position that the matter should await the return of the learned trial judge. Mr. Piché nonetheless argues on behalf of the accused that the Crown has waited too long to try to have her removed. I suggested to Mr. Piché that his position was incoherent: he wanted the trial judge maintained, but wanted the Crown to apply to remove her.

His response was that the Crown should have made the application in any event, which he would have opposed, and the Court could have made the decision. [ 36 ] With the greatest of respect to Mr. Piché, I cannot accept his position. When he told the Court that he wanted to await the return of the learned trial judge, he lost his opportunity to argue that the Crown should have acted otherwise. This is an obvious attempt to have matters both ways.

The accused cannot argue for the Crown to try to remove the learned trial judge, on the one hand, and argue against her removal on the other. [ 37 ] To consider the question from a different perspective, the accused (with the assistance of senior and able counsel) is in the best possible position to consider his s. 11 (

b) rights, particularly as balanced against trial strategy. It is obvious that certain events had occurred during the trial which defence counsel thought were advantageous - I have not read the complete transcript, but the portions I have read as relevant to reasons for adjournments make it clear that something unexpected happened to the Crown’s case, which defence was hoping to capitalize upon; obviously, that advantage would be lost if a new judge were appointed and the Crown ran its case again from the beginning. That is a perfectly-acceptable position for the accused to take.

He cannot do so, however, and then try to say that, to protect his rights , the Crown should have tried to replace the trial judge earlier, over his own objections. [ 38 ] That being the case, I consider that the accused has in essence taken the position that the learned trial judge should not have been replaced, even up to March 31, 2015, the upcoming trial date. The accused’s position is not determinative: it remains to me to make the decision as to whether or not the Crown has acted at the appropriate time.

Taking all of the above into consideration, however, I conclude that it has done so. [ 39 ] Accordingly, although it is very unfortunate for both the accused and the learned trial judge that her illness occurred, I conclude that periods (

g) and (

h) are both inherent delay. If I am incorrect in this, I would at the very least conclude that period (g), when the learned trial judge’s return was expected within a relatively short time, would in any event be inherent delay. Prejudice to the accused [ 40 ] As noted above, some prejudice is to be assumed simply from the fact of being subject to criminal charges. In this case, the accused has been under charges for three and a half years. [ 41 ] Additionally, although counsel referred to the accused as not being on any conditions, that does not appear to be correct.

As far as I can tell, he has throughout been subject to a restriction that he not consume any alcohol or other intoxicating substances. Leaving aside other intoxicating substances, I infer a certain degree of prejudice from the absolute prohibition on alcohol over that entire time. His restriction does not allow him to have a drink at home, or in any other safe circumstances: it requires total abstinence. There certainly

may be situations in which that is appropriate; I note, however, that for a person who has not been convicted of an alcohol-related crime, this is a very long period indeed. Had he pled guilty at the outset and been put on a no- alcohol probation condition for the maximum possible length of time, it would have expired by now. [ 42 ] While his condition is certainly not onerous as we normally think of it, it is nonetheless a factor which must be considered, in addition to the very long period he has been waiting for his matters to be concluded. Conclusion [ 43 ] Accordingly, I find that the delay of 1,278 days is attributable as follows: (

i) inherent - 405 days; (ii) institutional - 259 days (although only 142 are attributable to institutional cases; the balance are due to defence’s inability to proceed on the earliest available date); (iii) waived/attributable to defence - 393 days; (iv) Crown - 221 days. [ 44 ] In the end, I have to weigh all of the above factors in considering whether the delay has been unreasonable. Certainly this case has taken some unusual twists and turns, and taken a very long time to get to the point of a new trial date. Considering all of the above, I conclude that the delay has not been unreasonable.

On the face of it, three and a half years for what seems to be a simple charge of impaired driving seems very strange; but “very strange” is an accurate description of the course of this matter. I do not find that the accused’s s. 11(

b) Charter rights have been breached. ________________________ Q.D. Agnew, J 1 Contrary to ss. 255(1) and 253(1) (

a) of the Criminal Code . 2 Contrary to ss. 255(1) and 253(1) (

b) of the Criminal Code . 3 R v St-Onge Lamoureux , a decision ultimately rendered November 2, 2012. See 2012 SCC 57 .