Her Majesty the Queen - v. -, 2019 SKPC 31

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 31 Date: May 21, 2019 Information: 90130484 and 90131071 Location: La Loche _____________________________________________________________________________ Between: Her Majesty the Queen - and - Delbert Isadore Herman Appearing: S. Nael Naqvi For the Crown Blaine R. Beaven For the Accused DECISION ON TRIAL DELAY APPLICATION M. M ARTINEZ , J INTRODUCTION [ 1 ] Everyone who is accused of committing a crime has the constitutional right to be tried within a reasonable time: Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 , at para 11(b) [the Charter ]. [ 2 ] Information 90130484 [ Information 484 ] charges the defendant, Delbert Herman, with two counts of common assault on the same person. It is alleged that the offences occurred on January 5 and January 10, 2017. Information 484 was sworn on January 11, 2017.

[ 3 ] Information 90131071 [ Information 071 ] charges that on September 9, 2017, contrary to one of the conditions of his initial release from custody, the defendant communicated with the person he was alleged to have assaulted, and he threatened to kill her. Information 071 was sworn on October 18, 2017. [ 4 ] In both cases, Mr. Herman’s trials were scheduled to be heard on May 16, 2019. The total delay in the case of Information 484 is about 28.25 months. The total delay is about 19 months in relation to Information 071. [ 5 ] As both of his trials were scheduled for hearing more than 18 months after he was charged, the defendant applied for stays of proceedings under s. 11(

b) of the Charter . [ 6 ] Counsel argued the application before me on April 26, 2019. On May 13, 2019, I granted the defendant’s applications and informed counsel that the written reasons for my decision would follow. The following are those reasons.

THE LEGAL FRAMEWORK [ 7 ] The framework for assessing whether an accused person’s provincial court trial has been delayed unreasonably is as follows: • First, calculate the total period of delay from laying of the charges to the anticipated end of the trial. • Second, deduct any delay attributable to the defence. • Third, if the remaining period of delay exceeds 18 months, the delay is presumed to be unreasonable and the court must stay the charges unless the Crown shows that other periods of delay should be deducted because they resulted from exceptional circumstances outside of the Crown’s control. • Fourth, if the remaining period of delay still exceeds 18 months, the court must stay the charges. • Fifth, if the remaining delay falls below the 18 month presumptive ceiling, the court may stay the charges if the defence demonstrates that the period of delay still is unreasonable. [ R v Jordan , 2016 SCC 27 at paras 46-48 , [2016] 1 SCR 631 [ Jordan ]; R v Coulter , 2016 ONCA 704 at paras 34-40 , 340 CCC (3d) 429 ] FACTS Information 90130484 [ 8 ] As noted above, the defendant was charged on January 11, 2017.

March 13, 2017, was his first day in court. He adjourned his charges to April 3, 2017, in order to apply for a Legal Aid lawyer. [ 9 ] On April 3, 2017, he appeared in court with his Legal Aid lawyer. His lawyer asked for a further adjournment to May 1, 2017, in order to review the Crown’s resolution proposal. [ 10 ] On May 1, 2017, the defendant entered his “Not Guilty” pleas, but a trial date could not be set because the Meadow Lake Legal Aid office had discovered a conflict on the file. The charges were adjourned to May 29, 2017, so that outside counsel could be

appointed for Mr. Herman. [ 11 ] On May 29, 2017, Mr. Herman appeared with his present lawyer who asked for a further adjournment to June 19, 2017, in order to review the file, the Crown’s disclosure, and the Crown’s resolution proposal, and to advise his client and confirm his instructions. [ 12 ] On June 19, 2017, Mr. Herman’s trial was scheduled for hearing on March 29, 2018. [ 13 ] On July 13, 2017, Mr. Herman’s lawyer brought forward these charges in order to

schedule a new trial date. The defendant’s trial was re-scheduled to May 3, 2018. On behalf of his client, defence counsel waived the period of delay from March 29 to May 3, 2018. [ 14 ] On May 3, 2018, a judge, a court clerk, prosecutors, and defence lawyers [the court party ], boarded a charter aircraft in Meadow Lake and flew to La Loche. The court party arrived safely in La Loche, only to discover that the power was out with no estimated time when it would return. For this reason the court party returned to Meadow Lake.

Everyone who had business before the court that day had to be located and summoned back to court on another day. [ 15 ] On May 12, 2018, an R.C.M.P. officer served a summons on the defendant. It compelled him to appear in court on July 16, 2018. [ 16 ] On June 7, 2018, after learning that his client had been summoned to court, defence counsel sent a letter to Crown counsel asking that the defendant’s matters be brought forward to an earlier La Loche docket day.

Crown counsel did not respond to defence counsel’s request. [ 17 ] On July 16, 2018, the defendant scheduled his trial on the first available trial date which was February 7, 2019. [ 18 ] Unfortunately, the defendant’s trial did not proceed on February 7, 2019, as the court party did not fly to La Loche that day because of dangerous weather conditions: -38°C in La Loche, with wind chills approaching -50°C, and with an even colder ambient temperature in Meadow Lake [A court sitting that is cancelled because of unsafe travel conditions is referred to locally as a “weather out”, which is how I will refer to it in the remainder of my decision]. [ 19 ] Mr.

Herman’s trial was adjourned to May 16, 2019. Information 90131071 [ 20 ] As noted above, Information 071 was sworn on October 18, 2017. As the defendant was held in custody, his first court appearance was the next day. He immediately set the Information 071 charges for trial on May 3, 2018. From that point forward, the history of Information 071 parallels that of Information 484. DEFENCE DELAY [ 21 ] There are two kinds of defence delay. The first is any delay waived by the defendant: Jordan at para 61 .

The second is delay caused solely by the defendant’s conduct: Jordan at para 63 . [ 22 ] Defence delay does not include actions legitimately taken to respond to the charges: Jordan at para 66 . [ 23 ] In relation to Information 071, there is no defence delay. As such, the net delay is 19 months.

[ 24 ] In relation to Information 484, there are two periods of defence delay. [ 25 ] First is the period of delay the defendant waived. This period is about 1.5 months. [ 26 ] Second is the period of delay for which the defence, by its actions, is responsible. The Crown and the defendant agree that the latter period of delay is the period between the defendant’s second court appearance on April 3, 2017, and June 19, 2017, the date on which he set the charges down for trial.

While I agree that some of this period falls within the definition of defence delay, in fairness to the defendant, not all of it does. [ 27 ] Defence delay does not include legitimate actions taken by the defence to address the charges. Such legitimate actions include the time it reasonably takes for defence counsel to review Crown disclosure, discuss possible resolution of the charges with Crown counsel, and to meet with and advise the defendant. All of those things happened after the defendant’s second appearance in court. [ 28 ] One other thing that happened in this same period is that Mr.

Herman’s Legal Aid lawyer identified that he, or his office, had a conflict of interest in respect to the defendant’s charges. It should not have taken one month for the Meadow Lake Legal Aid office to identify a potential conflict of interest. This is something that should have been ascertained soon after the Meadow Lake Legal Aid office agreed to take on the defendant’s case. [ 29 ] The Meadow Lake Legal Aid office’s failure to identify potential conflicts of interest at the earliest opportunity is what led to the adjournment from May 1 to May 29, 2017.

While the defendant is not personally responsible for this one month delay, the defence is. [ 30 ] Consequently, I deduct a total of 2.5 months of defence delay from the total delay of 28.25 months, leaving a net delay of 25.75 months in relation to Information 484.

EXCEPTIONAL CIRCUMSTANCES [ 31 ] Exceptional circumstances are circumstances that are outside of the Crown’s control in that they are reasonably unforeseen or reasonably unavoidable, and Crown counsel cannot reasonably remedy the resulting delay after it arises: Jordan at para 69 . [ 32 ] Exceptional circumstances can take two forms: either discrete events or particularly complex cases: Jordan at para 71 . [ 33 ] The Crown concedes that there is nothing complex about Mr. Herman’s cases.

However, the Crown submits that I should deduct the periods of delay caused by the discrete events of the unplanned power outage that occurred on Mr. Herman’s first trial date, and the weather out that prevented the court party from travelling to La Loche on the day of his second trial. ARGUMENT [ 34 ] The Crown submits that neither the power outage nor the inclement weather was foreseeable or avoidable, and that, by accepting the first available trial date after each event, Crown counsel did everything it could to remedy the delay caused by them.

For this reason, all of the delay caused by these events must be deducted from the net delay. [ 35 ] The defendant submits that neither of the events qualifies as an exceptional circumstance because, in northwestern Saskatchewan such events are generally foreseeable and because something could have be done, and should have been done, in advance, to completely eliminate, or, at the very least, to substantially reduce, the delay caused by events such as these. [ 36 ] Specifically, the defendant submits that: 1) the availability and use of a portable generator and some construction lights would have eliminated the delay caused by the

unanticipated power outage on May 3, 2018, and 2) as it is well-known that trial delay in the Meadow Lake court, and in most of its remote circuit locations, including La Loche, isendemic, chronic, and significantly greater than in the rest of the province, and because weather outs and power outages are morecommon in northwestern Saskatchewan than in southern regions, additional court resources would greatly reduce trial delay when thesegenerally foreseeable discrete events occur. [37] In response, the Crown submits that the contingency planning suggested by the defendant falls outside the definition ofexceptional circumstances as it is not within Crown counsel’s control.

ANALYSIS Power Outages and Weather Outs [38] A discrete event is an event that is distinct and separate from other events. In the Jordan framework, an event qualifies as adiscrete event if Crown counsel cannot reasonably anticipate the event in advance. The event need not be rare: Jordan at para 9. [39] No one can predict an unplanned power outage.

Neither can anyone predict the weather far enough in advance of a trial to doanything about whether dangerous travel conditions may affect an upcoming trial. [40] For these reasons, weather outs and power outages fall within the first part of the Supreme Court of Canada’s definition ofdiscrete event exceptional circumstances. Was the Period of Delay Caused by Either Discrete Event Unreasonable? [41] Most, if not all, of the delay caused by the discrete events in Mr. Herman’s cases is institutional delay.

Institutional delay isthe period between when a case is ready for trial and when the court can accommodate the trial: R v Morin, (SCC), 1992CarswellOnt 75 at para 35 (WL) (SCC) [Morin]. [42] The focus of the defendant’s application is institutional delay. He submits that the institutional delay in La Loche isunreasonably long in comparison to that experienced by accused persons almost everywhere else in Saskatchewan. He further submitsthat this unreasonable institutional delay is a chronic problem that should have been addressed years ago.

Finally, the defendant submitsthat the problem exists, and the problem persists, because judicial and other resources assigned to the Meadow Lake court are notsufficient to meet the demands of the court. [43] The defendant’s submission echoes the Supreme Court of Canada’s observations about the underlying cause of institutionaldelay in Morin at paragraph 42: Institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of s. 11(

b) of the Charter. Itwas the major source of the delay in Askov. As I have stated, this is the period that starts to run when the parties are ready for trial butthe system cannot accommodate them. In utopia, this form of delay would be given zero tolerance. There, resources would be unlimitedand their application would be administratively perfect so that there would be no shortage of judges or courtrooms and essential courtstaff would always be available. Unfortunately, this is not the world in which s. 11(

b) was either conceived or in which it operates. [44] The Provincial Court of Saskatchewan publishes a quarterly report entitled Next Available Trial Dates [NATD]. The Court hasposted these reports on its website since the fall of 2014. They can be found under the tab: Reports and Publications. [45] The NATD reports show the period of time between the first day of each month and the next clear day in a given court’s trialdocket. As such, the reports are a reasonable measure of the institutional delay that exists in every location in Saskatchewan where theprovincial court sits.

For this reason, the NATD reports are an appropriate tool for comparing the institutional delay in La Loche to theinstitutional delay in other jurisdictions.

[ 46 ] In R v Askov , 990 CarswellOnt 111 at para 93 (WL) (SCC) , the Supreme Court of Canada had the following to say about comparing institutional delays in various jurisdictions: The response to the question of "How long is too long?" as it applies to institutional delay will always be difficult to fashion in our country. The question must be answered in light of the particular facts of each case. There can be no certain standard of a fixed time which will be applicable in every region of the country.

Nonetheless, an inquiry into what is reasonable in any region should not be taken in isolation and must, of necessity, involve a comparison with other jurisdictions. Consideration must be given to the geography, the population and the material resources of the province and district. [ 47 ] In Mr. Herman’s case, I will compare the rest of the Meadow Lake court circuit in general, and the La Loche court in particular, to other provincial court circuits that serve northern Saskatchewan or that have the same complement of judges as the Meadow Lake court. [ 48 ] The Meadow Lake court has three judges.

Those judges sit in the City of Meadow Lake and in 11 other communities in northwestern Saskatchewan. Four to five times every week, court parties from Meadow Lake travel by road, by air, and by air and road, to various of the Meadow Lake court’s remote circuit points. The Northern Village of La Loche is the busiest of those remote circuit locations. [ 49 ] Two other courts serve northern Saskatchewan communities. Those two courts are based in the cities of La Ronge and Prince Albert. The La Ronge court serves the City of La Ronge and nine other communities in northeastern Saskatchewan.

Two judges sit on the La Ronge court. The Prince Albert court travels to six circuit points, most of which are part of the Cree Court initiative. Prince Albert has six judges, one of whom is dedicated full-time to the Cree Court. [ 50 ] In addition to Meadow Lake, there are two other three-judge courts in Saskatchewan: North Battleford and Yorkton. The North Battleford court serves the cities of North Battleford and Battleford and travels to four circuit points.

The Yorkton court sits in the City of Yorkton and in another six rural locations. [ 51 ] The Provincial Court of Saskatchewan’s recently published Biennial Report 2016-2017 , which also can be found on the Court’s website under Reports and Publications , shows that after Saskatoon, Regina and Prince Albert, the Meadow Lake circuit is the fourth busiest court in the province from the perspective of the average number of new criminal charges and new accused persons that came before Saskatchewan provincial courts each year from 2013 to 2017: Biennial Report 2016-2017 pages 23-47.

The North Battleford court is the next busiest, followed by La Ronge and Yorkton, in that order. [ 52 ] For these reasons, the Prince Albert, North Battleford, La Ronge, and Yorkton courts are appropriate institutional delay comparators for the Meadow Lake court and for the La Loche circuit court. [ 53 ] In July 2017, the month in which Mr. Herman’s lawyer re-scheduled his first trial from March 29, 2018 to May 3, 2018, the institutional delay in La Loche was about 9.75 months.

At the beginning of July 2017, the median institutional delay in the Meadow Lake court circuit was 6.75 months: NATD – July to September 2017 . [ 54 ] At that same time, the median institutional delay in the La Ronge court was only 3 months, with the longest period of such delay being 3.75 months. In the Yorkton court, the median delay also was 3 months, in Prince Albert it was 2.5 months, in North Battleford it was only 5 weeks.

The longest period of institutional delay in any circuit point of the latter courts was 5.5 months: NATD – July to September 2017 . [ 55 ] The defendant could not speak to his second trial date until July 2018. By that time the institutional delay in La Loche had dropped to 6.5 months. At 6.25 months, the median delay in the Meadow Lake court remained relatively unchanged: NATD – July to September 2018 . [ 56 ] In the same month, the median delay in the comparator courts ranged between 2 months and 3.5 months.

The longest institutional delay in any of the comparator courts’ circuit points was 5.25 months: NATD – July to September 2018 .

[ 57 ] When the defendant’s second trial date was cancelled due to inclement weather on February 7, 2019, the court was able to find a new date for his trial about three months later. The reason for this is that the Crown recently had stayed another trial scheduled for hearing on May 16, 2019.

Had that not happened, the court would not have been able to accommodate his trials until early July – an institutional delay of about five months: NATD – January to March 2019 . [ 58 ] In February 2019, the median institutional delay in the Meadow Lake court was about five months, and the longest institutional delay in any of its circuit points was almost 6.5 months. At the same time, the median institutional delay was about 3 months in La Ronge, about 2.25 months in Prince Albert, less than two months in Yorkton, and about three months in the North Battleford court.

At the same time, the longest period of institutional delay in the circuit points of the latter courts was between 2.5 and 5.5 months: NATD – January to March 2019 . [ 59 ] The foregoing statistics support the defendant’s contention that institutional delay in the Meadow Lake court circuit generally, and in the La Loche court specifically, consistently is much greater than it is in the rest of the province. For this reason, arguably, the institutional delays Mr. Herman faced may well have been unreasonable.

However, the question that must be answered first is whether the length of the period of delay caused by a discrete event exceptional circumstance is a relevant issue within the Jordan framework. Is the Length of Discrete Event Delay a Relevant Issue Within the Jordan Framework? [ 60 ] The Crown submitted that the Jordan framework mandates that even an unreasonably long period of delay caused by a discrete event exceptional circumstance must be subtracted from the total period of delay.

The Supreme Court’s position on this issue, as articulated in Jordan at paragraph 75 , is somewhat more nuanced: The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events.

Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). [emphasis added; citations omitted] [ 61 ] Despite the tenor of defence counsel’s submissions, he did not suggest, nor did he provide evidence about, what portion of institutional delay I should not subtract because “the Crown and the system could reasonably have mitigated” it. For this reason, I am left with an “all or nothing” choice.

That being the case, the final question I must answer is “Do the discrete events in this case qualify as exceptional circumstances as defined in Jordan ?” Do the Discrete Events in this Case Qualify as Exceptional Circumstances as Defined in Jordan ? [ 62 ] As I noted in paragraph 31, above, an unforeseen discrete event does not qualify as an exceptional circumstance unless the Crown demonstrates that Crown counsel could not have remedied the delay that resulted from the discrete event.

Put another way, the Crown must show that Crown counsel was proactive in seeking to reduce the delay caused by the unforeseen event: Jordan at para 70 It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling.

This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay.

Jordan at para 112 From the Crown’s perspective, the framework clarifies the content of the Crown’s ever-present constitutional obligation to bring the accused to trial within a reasonable time. Above the ceiling, the Crown will only be able to discharge its burden if it can show that it should not be held accountable for the circumstances which caused the ceiling to be breached because they were genuinely outside its control. Crown counsel will be motivated to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling, should the need arise.

Below the ceiling, a diligent, proactive Crown will be a strong indication that the case did not

take markedly longer than reasonably necessary. [ 63 ] For practical purposes, what this means is that, if the Crown wishes to rely on discrete event delay to justify trial delay exceeding the presumptive ceiling, it must demonstrate either: • that Crown counsel took reasonable steps to remedy, or mitigate, the delay caused by the unforeseen events, or • that there was nothing Crown counsel could have done to remedy the delay caused by those events. [ 64 ] The position taken by the Crown in this case is that, by accepting the first trial date offered by the court, Crown counsel did everything he or she reasonably could have done to remedy the delay caused by the power outage and by the weather out. [ 65 ] In my opinion, the Crown is doing what the Supreme Court said it cannot do.

The Crown simply is pointing to the difficulties posed by the unplanned power outage and the weather out. It is not demonstrating that Crown counsel “took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling”. [ 66 ] In argument, the defendant suggested that the use of a portable generator and construction lights would have totally eliminated the delay caused by the power outage. I know that, in similar circumstances, a portable generator and portable lights have saved the day in other northern court locations.

The Crown did not offer any evidence that, on the day of the power outage, such equipment was not available or that Crown counsel looked into the possibility of obtaining such equipment from, for example, the La Loche R.C.M.P. detachment, and was refused. [ 67 ] Further, the Crown did not establish that Crown counsel could not have reduced the periods of delay emanating from these events in any other way. For example, could Crown counsel have brought forward for adjournment other trial matters that did not having looming trial delay issues?

Of course, I am mindful of the fact that, because trial delay in La Loche is a chronic problem, it may be that no such, less time constrained, trial matters existed.

However, the point is that it is up to the Crown to bring such information to the court’s attention when it wishes to rely on discrete event delay to justify otherwise unreasonable trial delay. [ 68 ] Not only did the Crown fail to establish that Crown counsel could not have ameliorated the delay caused by the discrete events, the evidence is that Crown counsel ignored an opportunity to do so when he or she did not respond to defence counsel’s request to bring his client’s matters forward from the date on which the defendant had been summoned to appear in court following the power outage. [ 69 ] As the Crown has not demonstrated that Crown counsel could not have remedied, or mitigated, the delay caused by the power outage and the weather out, neither of these events meet the definition of exceptional circumstances.

CONCLUSION [ 70 ] After deducting the periods of defence delay, the remaining trial delay in both of Mr. Herman’s cases is above the presumptive ceiling. As the Crown did not meet its burden of establishing the presence of exceptional circumstances justifying delay above the 18 month presumptive ceiling, I must stay these proceedings. ______________________ M. Martinez, J