Her Majesty the Queen - v. -, 2012 SKPC 158

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 158 Date: October 15, 2012 Information: 24333115 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Darren V. Smith Appearing: C. Scott For the Crown P. A. Abrametz For the Accused DECISION RE:

SECTION 11(

b) CHARTER APPLICATION S. C. CARTER , J I. INTRODUCTION [ 1 ] The accused, Darren V. Smith, is charged that on the 30 th of March 2008, he had care or control of a motor vehicle while his

ability to do so was impaired by alcohol or a drug. He is also charged with having care or control of a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit. On September 18, 2012, he brought a Charter application before this Court arguing that his right to be tried within a reasonable time had been breached, contrary to s. 11(

b) of the Canadian Charter of Rights and Freedoms . The accused first appeared on these charges on May 14, 2008. Since that time there have been two trials resulting in two acquittals, three appeals, and one unsuccessful application to appeal, all which resulted in the acquittals being overturned, and the charges remitted back to Provincial Court for a new trial. After the passage of three years and approximately four months the accused requests that further proceedings against him be stayed. II. ISSUES 1. Has the delay in this case been unreasonable and thus in breach of s. 11(

b) of the Charter of Rights ? 2. Although the accused gave notice pursuant to The Constitutional Questions Act, R.S.S. 1997 c.C-29.01 with respect to the s. 11(

b) Charter application, is he entitled to also argue for relief pursuant to s. 7 of the Charter without giving notice of his intention to do so? III. DECISION 1. Has the delay in this case been unreasonable and thus in breach of s. 11(

b) of the Charter of Rights ? [ 2 ] There has been no unreasonable delay. 2. Although the accused gave notice pursuant to The Constitutional Questions Act with respect to the s. 11(

b) Charter application, is he entitled to also argue for relief pursuant to s. 7 of the Charter without giving notice of his intention to do so? [ 3 ] The accused cannot argue that there has been an abuse of process without giving notice of his intention pursuant to The Constitutional Questions Act . IV. REASONS 1. Unreasonable Delay [ 4 ] The chronology of these proceedings is as follows: Offence Date - March 30, 2008 First Appearance - May 14, 2008 Self - Defence Request Adjourned to June 5, 2008 2 nd Appearance - June 5, 2008 Peter Jr. Agent for Sr. - Defence Request

Adjourned to June 26, 2008 3 rd Appearance - June 26, 2008 Peter Jr. - not guilty plea Adjourned to October 15, 2008 for Trial 4 th Appearance - October 15, 2008 Judge Loewen - Trial proceeds Crown - Hryhorchuk; Defence - Peter Jr. Adjourned for Decision to November 21, 2008 Crown invites Court to dismiss Impaired 5 th Appearance - November 21, 2008 Decision not complete.

Adjourned to November 28, 2008 for Decision 6 th Appearance - November 28, 2008 Acquitted on both .08 and Impaired ** Crown Appeal to Queen’s Bench Hearing June 15, 2009 Written Decision Judge Rothery - July 6, 2009 New Trial Ordered ** Defence Appeal to Court of Appeal heard on December 7, 2008 - Dismissed Orally Written Reasons - December 17, 2009 7 th Appearance - March 4, 2010 Nolan Corteau appears Adjourned to July 22, 2010 for Trial 8 th Appearance - July 22, 2010 - Trial Proceeds Adjourned to September 9, 2010 for Decision on Voir Dire

9 th Appearance - September 9, 2010 Certificate of Analyses excluded. Adjourned to September 17, 2010 - Crown to determine if further evidence to be called 10 th Appearance - September 17, 2010 No further evidence - charge dismissed ** Crown Appeal to Queen’s Bench Hearing March 18, 2011 Written Decision - J.

Rothery March 28, 2011 - new Trial ordered ** Defence Appeal to Court of Appeal December 5, 2011 - Leave to Appeal Denied 11 th Appearance - January 3, 2012 Consent Adjournment to January 9, 2012 12 th Appearance - January 9, 2012 Defence Adjourned to January 11, 2012 13 th Appearance - January 11, 2012 Adjourned to June 6, 2012 for Trial and Delay Application 14 th Appearance - May 9, 2012 Brought Forward at request of Crown to seek adjournment as witness not available - adjourned to August 29, 2012 for Trial 15 th Appearance - August 27, 2012 Brought Forward at Defence request for adjournment - health issue with accused and not available for Trial.

Adjourned to September 18, 2012 for Charter . ** Delay Application September 18, 2012

[ 5 ] In R. v. Potvin , Sopinka J., speaking for the majority of the Supreme Court, held that s. 11(

b) of the Charter “...does not apply to delay in respect of an appeal from conviction by the accused nor an appeal from an acquittal by the Crown.” [1] His reasoning was as follows: [2] Clearly, during the period after an acquittal and the service of a notice of appeal, the person acquitted is not a person charged. No proceeding is on foot which seeks to charge the person acquitted. Upon the appeals being filed there is a possibility, the strength of which will vary with each case, that the acquittal will be set aside and the charge will be revived.

The plight of the acquitted person is that of one against whom governmental action is directed which may result in a charge. In this respect the former accused is like the suspect against whom an investigation has been completed and charges are contemplated awaiting a decision by the prosecutor. Indeed the acquitted accused is somewhat more removed from the prospect of being subject to a charge than the suspect. In the former case, no charge can be revived until the acquittal is set aside by reason of an error of law that a court determines with a reasonable degree of certainty affected the decision at trial.

In the latter case, all that stands between the suspect and a charge is the ex parte decision of the prosecutor... [ 6 ] If, as was the case here, the Appeal Court sets aside the acquittal and orders a new trial, the accused once again becomes a “person charged” with an offence and the “constitutional clock” [3] is rewound to the date of the Appeal Court order. [ 7 ] Applying the Supreme Court’s decision in Potvin , the constitutional clock in the case at bar was “wound back” to December 5, 2011, when the Saskatchewan Court of Appeal refused to grant the accused’s leave to appeal Justice Rothery’s decision to order a new trial.

Approximately 10 months and three days passed between December 5, 2011, and the date of the delay hearing. Of that time some of the delay has been systemic (availability of trial time), some has been due to the Crown (getting the Information back before the Provincial Court and availability of witnesses), and some has been due to the defence (one adjournment, illness of the accused, and this delay application). None of this delay is unreasonable. 2.

Abuse of Process [ 8 ] In Potvin , [4] Justice Sopinka was of the opinion that in some similar circumstances an accused might resort to s. 7 of the Charter for a remedy. Defence counsel in the case at bar argued that although no notice was given under The Constitutional Questions Act this Court could still consider a s. 7 argument, presumably pursuant to a residual common law power to stay proceedings due to an abuse of process. While this argument may have been available without notice in 1993 when Potvin was decided, it is no longer. [ 9 ] In R. v.

Nome , our Court of Appeal held that: “Common law abuse of judicial process in the criminal sphere when the Charter applies is now subsumed into the principles of the Charter .” [5] The Court cited the decision of the Supreme Court in R. v. Reagan , [6] as authority for this statement. [ 10 ] The Charter does apply to the proceedings in the case at bar and thus notice must be given pursuant to s. 8 of The Constitutional Questions Act. No notice was given and therefore this Court cannot consider the question. V.

DECISION [ 11 ] The defence application for a stay of proceedings due to unreasonable delay is denied. [ 12 ] Dated at the City of Prince Albert, in the Province of Saskatchewan this 15 th day of October, A.D. 2012. _____________________________________

S. C. Carter, J [1] R. v. Potvin, (SCC), [1993] 2 S.C.R. 880, 1993 CarswellOnt 112, para 23. [2] R. v. Potvin, supra, para. 30. [3] R. v. Potvin, supra, para. 33. [4] R. v. Potvin, supra. [5] R. v. Nome, 2010 SKCA 147, para. 32. [6] R. v. Reagan, 2002 SCC 12, [2002] 1 S.C.R. 297.