Her Majesty the Queen - v. -, 2015 SKPC 1

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 001 Date: January 8, 2015 Information: 24478136 and 24478139 Location: Assiniboia _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jeffery Gordon Lewis Appearing: Brian Hendrickson, Q.C. For the Crown Self-Represented For the Accused DECISION M. GORDON, J [1] Mr. Lewis asks for the charges on Informations 24478136 and 24478139 be dismissed.

He asserts that his right to be triedwithin a reasonable time frame has been infringed pursuant to s. 11 of the Canadian Charter of Rights and Freedoms. Mr. Lewis cites insupport of his application the Supreme Court of Canada decision in R v Morin, (SCC), [1992] 1 SCR 771 [Morin]. [2] Mr. Lewis identified only the one Information being 24478139 in the notice that he served on Crown counsel. However, byconsent Information 24478136 was added to his application. Although Crown counsel was only served with the formal notice on the dayset for the hearing, the Crown indicated they were aware that Mr.

Lewis was making this application and the Crown was prepared toproceed. It is noted that the Federal Crown was not served with the application as required under The Constitutional Questions Act. However, I decided to hear the application.

[ 3 ] The first Information, being 24478136, contains three counts pursuant to s. 145 of the Criminal Code alleged to have occurred December 17, 2012. These counts refer to alleged breaches of various conditions of the same recognizance. Information 24478139 alleges on February 8 and February 9, 2013 three breaches of the same recognizance pursuant to s. 145(3) of the Criminal Code . The endorsements on the court record are the same for both Informations except the first Information has two additional earlier court dates being January 8 and January 16, 2013 in Assiniboia.

The court endorsements from February 12, 2013 to the present date are identical on both Informations. [ 4 ] Mr. Lewis testified and said that for the last two years these charges have been outstanding and been adjourned many times. He stated that no reason had ever been given to him. He had not entered any plea on any of the counts on these Informations as he did not know what the Crown was asking for with respect to sentencing. He also indicates, in his view, he is missing disclosure from the RCMP. [ 5 ] On cross-examination Mr. Lewis elaborated somewhat on Information 24478139.

He was of the opinion that he was missing statements that had been made to the police claiming that he was a danger to society. He claims that it is his information that his boss had made such statements and this is the reason why he was detained in custody for a period of time. He also testified that the alleged victim had given a KGB statement and he had not been provided with this as well. He claimed that on June 12, 2014, he had sent a registered letter to Mr. Parker asking for disclosure. Mr.

Lewis admitted to being represented by lawyers throughout these proceedings and in particular on August 8, 2013, there was a preliminary inquiry on a more serious indictable matter heard by Judge Kovatch. He was committed to stand trial in the Court of Queen’s Bench on that matter and at the time was represented by Estes Fonkalsrud from the Chow McLeod Law Firm in Moose Jaw. Mr. Lewis says on December 19, 2013, he dismissed Mr. Fonkalsrud. The court record shows Mr. Fonkalsrud was given leave by the Provincial Court to withdraw on January 9, 2014. Mr.

Lewis acknowledged he had not made any application for court appointed counsel on these charges because Judge Kovatch had told him that it would be very unlikely to have court appointed counsel. Mr. Lewis testified that he currently is being represented on the indictable matter by counsel from Regina, namely Louis Mercier and that the trial will be proceeding next fall or winter in the Court of Queen’s Bench, Judicial Centre of Moose Jaw. [ 6 ] Mr.

Lewis admitted he was advised by the Crown that if he was convicted on the indictable matter in the Court of Queen’s Bench that these charges in Provincial Court would not proceed. If he was found not guilty on the more serious charge, the Crown would still be proceeding on these breach charges. Mr. Lewis stated he could not enter not guilty pleas because he did not have full disclosure. Mr. Lewis was adamant he did not consent or give his lawyers authorization to consent to any of the adjournments and his lawyers went ahead and acted without his knowledge. Mr.

Lewis called no other evidence and did not file any other material. [ 7 ] The Crown did not call any evidence. [ 8 ] Mr. Lewis did not make any extensive submissions other than claiming that the main reason for him not entering pleas was the disclosure issue and that he did not consent to the adjournments or did not waive delay. [ 9 ] Crown counsel filed and referred to four more recent cases as well as the Morin case. The Crown filed R v Pidskalny , 2013 SKCA 74 ; R v Dzuba , 2014 SKQB 57 ; R v Wilson , 2013 SKCA 128 and R v Shepherd , 2014 SKQB 83 .

The Crown argued that a stay of proceedings is not the appropriate remedy here as there has been no delay. The matter has been adjourned from time to time without plea because the other matter is proceeding in the Court of Queen’s Bench. This is a fairly usual way of handling such breach charges when there are other outstanding more serious charges in the Court of Queen’s Bench. The Crown also pointed out that Mr. Lewis or his counsel did not make a disclosure application under s. 7. Also if there has been any delay, Mr. Lewis is mainly responsible for the matter not proceeding to trial. Mr.

Hendrickson stated that based on the factors considered in all of these cases there is no evidence of prejudice to Mr. Lewis other than the prejudice that comes from having outstanding charges. [ 10 ] Mr. Hendrickson points out that for the majority of the time, Mr. Lewis has been represented by capable counsel and proceedings have been adjourned on many occasions by consent. On two specific instances, the record notes namely the September 12, 2013 to November 14, 2013 delay was waived and again from November 14, 2013 to January 9, 2014 delay was waived. On both those occasions Mr. Lewis was represented by Mr.

Fonkalsrud and was present in Court. The Crown says any disagreements that Mr. Lewis now has with his former counsel should be raised in another setting and is not to be taken into account in this application. The Crown suggests that Mr. Lewis has not been diligent and suggests that this application appears to be another tactic to get the charges to go away. The Crown is unclear as to exactly what Mr. Lewis wants in disclosure as there has been no application for particulars. The

Crown suggests that Mr. Lewis has said these charges are bogus but has refused to enter a not guilty plea. The Crown agrees that the Court can properly consider the application but once the record is reviewed, it is clear there is absolutely no basis for Mr. Lewis’ application and asks the Court to dismiss it. ANALYSIS [ 11 ] Sections 11(

b) and 24(1) of the Charter reads as follows: 11 . Any person charged with an offence has the right (

b) to be tried within a reasonable time; 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [ 12 ] First of all, it must be noted that Mr. Lewis has not entered a plea on any of these allegations and therefore a trial date has never been set. Secondly, this application is with respect to breach allegations under s. 145 of the Criminal Code . In Morin , Mr. Justice Sopinka reminds us that the primary purpose of s. 11 (

b) is the protection of the individual rights of an accused. At paragraph 27, Sopinka J. stated: The individual rights which the

section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial. [ 13 ] At paragraph 28: The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh. [ 14 ] At paragraph 29: The secondary societal interest is most obvious when it parallels that of the accused.

Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. ...

In some cases, however, the accused has no interest in an early trial and society’s interest will not parallel that of the accused. [ 15 ] Finally, Justice Sopinka goes on to say that the interests of the accused must be balanced by the interests of society and law enforcement. [ 16 ] At paragraph 31, Justice Sopinka stated: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra , “[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?” (p. 1131). While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:

1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused. These factors are substantially the same as those discussed by this Court in Smith, supra, at p. 1131, and in Askov, supra, at pp. 1231-32. [17] In Morin, the Court goes on to say that the first stage of the inquiry is whether a prima facie case of unreasonable delay hasbeen made out. If the Court is satisfied that there is a prima facie case then the Court should and will hear argument on the merits. [18] Twenty-four months or two years has gone by without these matters coming to trial but as I mentioned previously, the fact ofthe matter is that Mr.

Lewis has not entered a plea to any of the allegations on either Information. The Crown has not objected to theCourt hearing the application on its merits. In this case I have reviewed the Court proceedings for all the court dates from the firstappearance on December 2012, with respect to the first Information (24478136) and February 12, 2013 with respect to the laterInformation. A review of the record and the evidence indicates that the only possible delay that could be attributed to the Crown is thelack of disclosure in the form Mr. Lewis says exits. Mr.

Lewis relies on this argument as one of his main reasons for not being able toenter a plea. I do not accept this argument as not every single piece of disclosure needs to be provided to an accused. There needs to besufficient disclosure provided to the accused to allow him to make an informed decision. Any late or subsequent disclosure orinadequate disclosure will be born by the Crown. Mr. Lewis first mentioned disclosure in June of 2014, claiming he did not have all theRCMP statements. He was present in Court on the four court dates being February 13, March 13, April 1 and June 12 of 2014.

Mr.Lewis, it is noted, has been represented by other counsel throughout these proceedings. Mr. Fonkalsrud of the Chow McLeod officerepresented Mr. Lewis on these matters as well as the matter that he was committed to stand trial on in the Court of Queen’s Bench fromJanuary 2013 through to January 9, 2014, when Mr. Fonkalsrud was given leave by this Court to withdraw from representing Mr. Lewis. Mr. Lewis testified he fired Mr.

Fonkalsrud in December 2013. [19] During that time there were a number of adjournments of this matter and particularly between February 12, 2013 and March11, 2013 lawyers from the Moose Jaw Legal Assistance Clinic represented Mr. Lewis as Mr. Lewis was in custody and the Crown wasapplying to revoke bail. On July 16, 2014, the court record shows that Ms. Weber from the Legal Aid Clinic represented Mr. Lewis forthat court date only and had the matter adjourned to November 13, 2014. That adjournment was at the request of Mr. Lewis andconsented to by the Crown.

All other endorsements are shown to be by consent and in particular the court dates of September 12, 2013and November 14, 2013 clearly show that the defence waived delay. On his more serious charges, there is also an indication that therelease document was amended. [20] In R v Mills, (SCC), [1986] 1 SCR 863, Mr. Justice Lamer noted that it is the responsibility of the Crown tobring the accused to trial and that the right to be tried within a reasonable time is an aspect of fundamental justice protected by s. 7 of theCharter. Mr.

Justice Lamer went on to say that when the Court looks at the actions of the accused person, such review should berestricted to discovering those situations where the accused’s acts directly caused the delay or the actions of the accused were deliberateand tactical to delay the trial. The Court gives examples such as changing counsel which is certainly different than situations where thedelay has been caused by factors beyond the control of the accused person or where the accused did nothing to prevent a delay caused bythe Crown. [21] When I consider the entire case, I am satisfied that Mr.

Lewis had legal representation for the majority of these proceedings. He has requested and consented while being represented by counsel to the adjournments of these two Informations without entering aplea. On two specific occasions when he was still represented by Mr. Fonkalsrud it was noted on the record that the accused waiveddelay. Mr. Lewis chose to be represented by his mother for four of the adjournments and again the indication is he requested andconsented to the adjournments.

It was not until June of 2014 that there is a mention of lack of disclosure but no further action was takenon his part to pursue this alleged deficiency.

[22] In R v Akinchets, 2011 SKPC 88, Judge Kalmakoff has this to say about disclosure at paragraph 29: Furthermore, the Crown retains a discretion over the manner of disclosure, and is not required to provide disclosure in the specificformat desired by the defence, so long as it provides the relevant information (R. v. O.(W.A.) (2001), 2001 SKCA 64 , 207 Sask.R. 208 (C.A.); R. v. Burns, 2010 SKPC 6). The defence is entitled to disclosure which informs the accused of the case he has to meet.

The defence is not entitled to perfect disclosure, or material which most easily facilitates use in cross-examination. [23] I am satisfied that Mr. Lewis was well aware of the Crown’s position with respect to the breach charges and that heunderstood and did not object to these charges being set over to be spoken to without plea. It is further noted that there were two timeperiods where there was significant delay, the first one being September 12, 2013 to November 14, 2013 where Mr. Lewis wasrepresented by Mr. Fonkalsrud, requested the adjournment and waived delay. Similarly, on July 16, 2014, Mr. Lewis had Ms.

Weber,counsel from Legal Aid, for that adjournment and requested an adjournment to November 13, 2014. It is a reasonable inference and I doconclude that those longer adjournments were to allow the Queen’s Bench matter to proceed and it was anticipated the Queen’s Benchmatters would be concluded by November 2014. These matters before the Court are not complex. The time that has elapsed is, in myview, totally attributable to Mr. Lewis and in fact is in his interests to not deal with these matters until after the more serious matter isconcluded. In fact, it could be to the prejudice of Mr.

Lewis if trials were held on these matters prior to the Queen’s Bench matter. [24] Therefore, when I look at the factors considered in each of the cases, I conclude that Mr. Lewis has failed to satisfy the Courton the balance of probabilities that there has been any infringement of his rights under s. 11(

b) of the Charter. In my view any delay inhaving Mr. Lewis enter a not guilty plea and set a trial date has been caused or a result of his request and actions and quite frankly is tohis benefit. Accordingly, I do not find there is any Charter breach. I find that Mr. Lewis is using this as a tactic to prevent these mattersfrom proceeding. Mr. Lewis has counsel on the more serious matter in the Court of Queen’s Bench. Accordingly, the application isdenied and the Court will direct not guilty pleas to be entered on all counts on both Informations and these matters set for trial. M. Gordon, J