Her Majesty the Queen - v. -, 2013 SKPC 12

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 012 Date: January 24, 2013 Information: 32417250 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Spencer John Shepherd Appearing: William Collins For the Crown Michael Owens For the Accused DECISION ON APPLICATION FOR A STAY OF PROCEEDINGS B.M. SINGER , J [ 1 ] The accused, Spencer John Shepherd, applies, pursuant to s. 11(

b) of the Canadian Charter of Rights and Freedoms,

Part I of The Constitutional Act , 1982 (the Charter ), to have the charges brought against him stayed on the basis that he has not had his trial within a reasonable time. [ 2 ] The applicant was charged on October 28, 2009, that he did on October 22 nd of that year operate a motor vehicle while impaired and that he operated a motor vehicle while his blood alcohol level exceeded 80 milligrams. A trial and voir dire commenced in front of a Provincial Court judge on October 25, 2010, and continued on May 20, 2011.

[ 3 ] After all the evidence had been led on the voir dire that issue was adjourned for decision. Unfortunately, the judge became ill and was unable to continue. The trial was to recommence in front of a different judge on April 24, 2012, however, the Defence was unavailable and a new date of December 19, 2012 was set. On that date the accused made an application for this stay of proceedings due to unreasonable delay. There is still no trial date reserved to hear the charges.

One thousand one hundred and twenty-one days have elapsed, a period of time that I have rounded off to 37 months. [ 4 ] This delay is sufficient to trigger a review by the Court and requires an explanation. A. Background [ 5 ] A review of the record, which includes the court endorsements to the Information, various trial sheets attached to the Provincial Court file and transcripts of various appearances reveals the following:

a) The alleged offence took place on October 22, 2009. The applicant was given a recognizance entered into before the officer in charge to appear in court November 18, 2009. The Information was sworn October 28, 2009 (This is the date to be used to determine the commencement of the charge.);

b) On November 17, 2009, the accused, through his lawyer, appeared in court and the matter was adjourned without plea to December 9, 2009;

c) On December 9, 2009, a trial sheet was prepared setting a trial date of October 25, 2010, and a case management date of July 23, 2010. This was arranged by telephone conference call with the trial co-ordinator;

d) At the case management on July 23 rd , disclosure was incomplete and it was unclear that all the witnesses had been subpoenaed. It was noted that an application to exclude evidence would be made; that “ Charter notice” was forthcoming and a voir dire would be required. At that time the case management judge recorded there were no issues of trial delay. The trial date was confirmed;

e) The trial commenced on October 25, 2010. It was a blended voir dire and trial. This is a common and recommended practice in these matters and requires an understanding that evidence would apply to both the voir dire and the trial and a decision on the voir dire would precede the completion of the evidence on the trial if further evidence was required;

f) The record indicates however that on the 25 th of October there was insufficient time to complete all of the evidence on the voir dire, in particular cross-examination of the accused. The trial was adjourned by consent to May 20, 2011. There is no indication on the record that an earlier trial date was sought or asked for;

g) On May 20, 2011, the evidence was completed on the voir dire , argument was made and the matter was adjourned for decision. That decision was to be given September 19, 2011. The trial judge was unable to appear that day and the matter was further adjourned for decision to September 28, 2011;

h) On September 28, 2011, the trial judge was ill and unable to continue. Indeed he has not sat since. Judge Irwin attended and advised the parties that the situation fell within the context of s. 669.2(3) of the Criminal Code and that the only choice was to reset the trial with the evidence called again in front of a different judge. He adjourned the case for two days to allow the parties to consider their respective positions. He invited them to consider whether the matter could proceed on the basis of the transcript of evidence already called and argument already made; or whether evidence would have to be called again;

i) On September 30, 2011, the parties appeared in front of the trial co-ordinator and set a new trial date of April 24, 2012. Two days were allotted. The record indicates that the Crown was prepared to use the transcript to expedite the matter but the Defence was not. Indeed, it was apparent that the Crown advised the trial co-ordinator and the Court that he was prepared to waive “platoon” [1] , but no

further request was made for an expedited date, nor does the record indicate that the date was consented to by the Defence or that delay was waived;

j) Before the April 24 th date, the Defence learned that he would be unavailable to appear as another matter had been set in the interim for appearance in the Court of Appeal. As a result, the Crown and the Defence appeared on April 4, 2012, in front of the trial co-ordinator and arranged a new two day trial date commencing December 19, 2012;

k) That date was confirmed in court April 9, 2012. The period of time between April 24 and December 19, 2012, was caused by the Defence request for an adjournment. The Defence conceded that it is not to be counted in the calculation of unreasonable delay;

l) This delay application took most of December 19. If the application is dismissed a date must still be ascertained for trial. B. Position of the Applicant [ 6 ] The applicant says that his rights under s. 11(

b) of the Charter have been breached and that the appropriate remedy is a stay of proceedings. He does not complain that the time to the original trial date was excessive, but that the total time to trial would now be unreasonable. [ 7 ] The applicant filed an affidavit and was cross-examined on it. He deposed and testified that the delay has been “very difficult for him”. In particular, the time since September 19, 2011, when he expected a decision has been hard. He testified that he chose to have a new trial rather than rely on the transcript.

While he deposed that the law is in flux and that he would have to live with the law as it is at the new trial date; he testified that procedure was preferable to having a judge just review the transcript, because the judge’s decision on the voir dire must be made on the credibility of the witnesses.

The ability to view and hear the witnesses is therefore essential. [ 8 ] The applicant deposed that he chose not to work in his profession as a building inspector since the charge was laid, because that is a job dependent on trust and he feels that he would be unable to properly maintain that trust with his clients under threat of conviction. He therefore has suffered a financial loss. He feels he has suffered embarrassment and stigma with his relatives which has continued for all of this time.

He feels that a decision on the case, even if it were a finding that he was guilty of the charges, would provide closure to that humiliation. He suffers from anxiety, and the length of the delay to trial has caused him to suffer more. He receives treatment for the anxiety and has received an increase in the dosage of his medication for this illness.

Subjectively, he has felt the effects of the length of the delay to trial, over and above the effects of facing an embarrassing charge. [ 9 ] The applicant says that the delay of time to trial of over three years is constitutionally unacceptable and that he is responsible for only six and a half months of that time. He believes that about six months of that time is inherent delay in the process and that when a court looks at the whole of the delay including the fact that there was still no trial date set, that the delay to date of approximately 23 ½ months is unreasonable.

He says that he did not specifically waive his rights and that consents to particular dates were “acquiescence in the inevitable”. He suggested that the delay to trial was caused by some inherent time requirements but mostly by the Crown’s failure to “fast track” the proceedings and systemic delay. He reminds the Court that as the length of delay increases so does the strength of the inference that the accused has suffered prejudice and so does the actual prejudice suffered by him. C.

Position of the Crown [ 10 ] The position of the Crown is that each of the adjournments, but one, was by consent and that the applicant by consenting waived his rights under s. 11(b). Further, he says that all delays necessitated by rescheduling after September 30, 2011, were as a result of the accused’s own tactical decision, in particular, the decision to proceed with a new trial, rather than on the transcript and should not be calculated as unreasonable delay.

He also suggested that the accused has not demonstrated prejudice and if he has, he contributed to this prejudice by choosing this tactic rather than a trial on the transcript.

D. The Law [11] This is an application alleging the breach of s. 11(

b) of the Charter. That

section says quite simply that any person chargedwith an offence has the right to be tried within a reasonable time. Speaking for the majority in R. v. Morin, (SCC),[1992] 1 S.C.R. 771, Judge Sopinka wrote a paras. 26 to 30: 26. The primary purpose of s. 11(

b) is the protection of the individual rights of the accused. A secondary interest of society as a wholehas, however, been recognized by this Court. I will address each of these interests and their interaction. 27. The individual rights which the

section seeks to protect; are (1) the right to security of person, (2) the right to liberty, (3) the right toa fair trial. 28. The right to security of person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure tocriminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result frompre-trial incarceration and restrictive bail conditions. The right to a fair trial is attempting to ensure that proceedings take place whileevidence is available and fresh. 29. The secondary societal interest is most obvious when it parallels that of the accused. Society as a whole has an interest in seeingthat the least fortunate of its citizens who are accused of crimes are treated humanely and fairly.

In this respect trials held promptlyenjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), (ON CA), 36 C.R. (3d) 73(Ont. C.A.); trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as awhole and, indeed, to the ultimate benefit of the accused . . . (p. 96). In some cases, however, the accused has no interest in an early trialand society’s interests will not parallel that of the accused. 30. There is as well, a societal interest that is by its very nature adverse to the interests of the accused.

In Conway, the majority of thiscourt recognized that the interests of the accused must be balanced by the interests of society and law enforcement. This theme waspicked up in Askov in the reasons of Cory J. who referred to “a collective interest in ensuring those who transgressed the law are broughtto trial and dealt with according to the law”. As the seriousness of the offence increases so does the societal demand that the accused bebrought to trial.

The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused ofserious crimes simply to clean up the docket. [12] In Morin, supra, at para. 31, Sopinka J. provided a useful analysis as to how a s. 11(

b) analysis should proceed: 31. The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably lead to the delay or are otherwise the cause of the delay . . . It is now accepted that the factors to beconsidered in analyzing how long is too long may be listed as follows: 1. The length of delay; 2. The waiver of time period; 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 the institutional resources;

e) other reasons for delay.

4. Prejudice to the accused. [13] In R. v. Godin, 2009 SCC 26, the Supreme Court cautioned against a piecemeal analysis of the various sections of delay, byreminding trial judges not to lose sight of overall delay, and balancing the interest required to assess an alleged s. 11(

b) infringement. AsCromwell J. speaking for the Court, said “This often and inevitably leads to a minute examination of particular time periods and a host offactual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees whileengaging in this detailed analysis.” [14] As well in R. v. McDougall, (SCC), [1998] S.C.J. No. 74, the Court said at para. 45: “the inherent timerequirements of a case are not limited to common place delays which occur in every situation, but may include delay due to extraordinaryand unforeseeable events . . .”. E.

Length of the Delay [15] The length of time from the date of the charge to the date of this application (as the trial date has not been set), is 1,121 daysor approximately 37 months. The Supreme Court in Morin, supra, established certain guidelines with regard to delay. A period of eightto ten months in Provincial Court along with six to eight months from committal to trial for a total guideline period of 14 to 18 monthswas a recommended yardstick for a trial in the Court of Queen’s Bench. This period of time has been greatly exceeded in this case.

However, time alone is not determinative, rather a functional examination of the reasons for delay must be undertaken to assess itsreasonableness. As I indicated above the threshold for further examination of the delay has been met in this case so as to warrant anenquiry into its reasonableness. [16] The period of time from the charge until the plea was entered and the matter adjourned for trial is about one and a halfmonths. There is nothing unusual in this delay as some inherent delay must occur while the accused engages counsel, disclosure isretrieved and reviewed and a plea is entered.

I would consider this one and a half months to be neutral time and I will not include it inany calculation of delay. [17] The Defence conceded that the period of time from April 24, 2012, to December 17, 2012, was at his request and that hewaived delay for that purpose. This is a period of approximately eight months and should be excluded in any calculations. Thus theperiod of time under examination is 25.5 months. [18] The time to the first trial, that is from December 9, 2009, when the plea was entered, to October 25, 2010, was 10 ½ months.

This time is within the range of time to trial in Provincial Court in Saskatoon at that time,[2] but it is outside the time consideredappropriate by the Supreme Court in Morin. In R. v. Stensrud, [1989] S.C.J. No. 116, the Supreme Court of Canada suggested that theprovincial Courts of Appeal are best suited to determine the reasonableness of their province’s institutional limitations and resources. The Saskatchewan Court of Appeal had held (Stensrud, 67 Sask.

R. 698) that eighteen months from charge to trial was a reasonable timefor a straightforward indictable matter in the Court of Queen’s Bench, outlining a similar period of time in Provincial Court as theSupreme Court did in Morin. [19] While the Defence consented to the trial date of October 25, 2010, there was no particular specific waiver of delay for thatperiod of time. The endorsements on the Information involve a box where ‘consent to date’ has been checked, the ‘waiver of delay byDefence’ box has not been checked. At the time it was expected that the trial would be completed on October 25, 2010.

It is apparentthat no one turned their mind to the issue of delay as 10 ½ months was close to the ordinary average length of time to trial in Saskatoonat that time. [20] As indicated the judges of the Provincial Court in Saskatoon felt that this time to trial was too long and in 2009 were in theprocess of taking steps to alleviate time to trial.

[ 21 ] This therefore could be considered institutional delay, also recognizing that had not the trial judge become ill, and unable to continue, it would by itself not have been an “unreasonable delay”. Of course it is the entire time to trial that is now before the Court and is the issue before me. [ 22 ] When the trial date was set, only one day was set aside for the trial. The estimate of the length of the trial is determined in the first instance, in Saskatoon, when the prosecutor completes a trial sheet. It is his obligation to estimate the amount of time needed to complete the trial.

There was nothing in the case, other than the number of witnesses contemplated to be called, that would have predicted anything other than a one day trial. [ 23 ] When the matter was case managed in the summer of 2010, there was nothing that would alert anyone to the fact that this trial would take longer than the usual one day for this type of case. Indeed to speed things up agreements were made between the Crown and Defence at the case management. For instance, times for further disclosure were agreed to and times for written notice of Charter applications were settled.

Oral notice of that application had been given. [ 24 ] In spite of these efforts, on the date set for trial, the voir dire was not finished and a continuation date to continue was picked. There is nothing on the record to indicate there was any attempt to find an expedited date or that an earlier date was offered. However, the record does indicate that the applicant consented to the new date as the box marked ‘consent’ was checked on the endorsements. Again, the box indicating ‘waiver of delay’ was not.

The proceedings, for the purposes of this calculation, had now lasted 17 ½ months. [ 25 ] After the second day of the trial the matter was adjourned by the trial judge for decision on the voir dire. This adjournment was for approximately four months. There was then a further delay of approximately one-half month to set a new trial date once s. 669.2(3) was applied.

I believe this time to be neutral time, as time for a decision, if not excessive, is to be expected in a case such as this. [ 26 ] On September 30, 2011, a new trial date was set, some seven months into the future, to April 24, 2012. [3] This made the time to trial, excluding neutral time and clearly waived time, to be 24 ½ months. It is that total time that I must now consider. I will discuss this adjournment, after dealing with issues raised by the Crown. F.

The Issue of Tactical Delay by the Accused as Raised by the Crown [ 27 ] In the case before me there was really no issue of delay, until it became clear that the trial judge could not continue the case. The process to be followed in s. 669.2(3) of the Criminal Code was followed. That

section states, in essence that if a Provincial Court judge becomes unable to continue a trial, where evidence has been called, but no adjudication has been made, the new judge, “shall . . . commence the trial again as if no evidence had been taken”. The Defence and the Crown were invited to have the new judge proceed from the transcript of evidence called on the voir dire and the argument already made, but the Defence chose to have a new trial. Several reasons were advanced for this.

The most compelling was that issues of credibility were essential to any determination of the voir dire , as the accused had testified and that credibility is best determined by the judge hearing and seeing the witnesses testify, thus the best defence required there be a new hearing on viva voce evidence. [ 28 ] The Crown alleges that even if that is the best way for the Defence to proceed, having made that decision, the applicant has to realize that in order to have his trial, there will be an inevitable delay before that new trial can be held. He relies on the case of R. v.

Kugathasan , 2012 ONCA 545 , where the Court stated that “in the context of the 11(

b) calculus ( sic) , the Defence, like the Crown, must take responsibility for the delays that are the consequences of its tactical choices ”. In Kugathasan two days had been set for the trial. The accused gave notice he was contesting the original Appearance Notice. The Crown made arrangements to 1) argue the motion on the first day of trial; 2) if they lost, the Crown was going to re-serve the accused properly; and 3) commence the trial the next day. The accused was aware of the Crown’s intended course of action.

The accused was successful in his motion but left the courthouse before he could be served with a new Information and therefore his trial did not go ahead. One cannot help but think that his lack of cooperation was the “tactical choice”. [ 29 ] It is of note that in R. v. Godin, supra, a similar case, the Court of Appeal of Ontario, 2008 ONCA 466 , made a similar decision. The Supreme Court reversed that decision ( supra ) and Cromwell J. indicated that choices made by the Defence in carrying out their defence do not always undercut their position that the delay was unreasonable.

It obviously depends on the types of choices made.

[30] In the matter before me, it can hardly be argued that it is a tactical choice to follow the Criminal Code. The issue is not, as itwas in Kugathasan, that the accused took steps to avoid the trial when a process was in place for it to go ahead one day later thanplanned. Here the cause of delay was outside the control of the Crown or the Defence. Indeed the Crown, setting the new trial date,specifically waived “platoon”, therefore implicitly recognizing that delay might become an issue.

It is not surprising that the new datewas not consented to by the Defence, nor was delay waived. [31] The decision to have a new trial, rather than have a judge determine the case based upon the record of evidence and argumentmade to date, is not to be held against the accused. When Defence decisions naturally add to the inherent time to trial, those decisions donot relieve the Crown of its obligation to bring the accused to trial within a reasonable time.

That period of time from September 30,2011, until the first new trial date of April 24, 2012, must not be removed from the calculation, as suggested by the Crown. G. Waiver [32] In R. v. Rogalsky (1994), (SK CA), 125 Sask. R. 271 (Sask. C.A.), that court indicated that “consents toadjourn dates normally constitute actions of the accused attributable to them”. In Morin, supra, the Court made it clear that a waiver ofthe right to a trial within a reasonable time must be clear and unequivocal, with full knowledge of the rights the procedure was enacted toprotect, and the effect the waiver will have on those rights.

The notion of waiver contemplates a choice between available options. When trial dates are offered on the basis of availability of a number of factors, including “platoon”, the defendant’s choices are limitedand no real options exist except to have the matter of delay argued in front of a judge who would have jurisdiction to set an earlier date,but only if resources are available. In Askov (1990), (SCC), 79 C.R. (3d) 273, the Supreme Court indicated that silenceor lack of objection, to the matter of delay, cannot constitute a lawful waiver.

While it is true that on each of the endorsements followingan adjournment (except for the adjournment from September 20, 2011, to April 24, 2012) the box checked off for consent (it doesn’t saywho is consenting) was checked; the box entitled “delay waived by defence” was never specifically endorsed. [33] It is possible to consent to an adjournment date without waiving delay and that is what happened in each of these cases oneach of the appearances except that of September 30, 2011, where the accused did not consent, nor did he waive delay. [34] In the circumstances of this case, there is no indication in the record that the accused or his legal counsel (or the Crown) gaveany thought to the accused’s s. 11(

b) rights until the time the new trial date had to be set. Consents to trial dates made without referenceto any intent to waive s. 11(

b) rights are, to use the words of Justice Sopinka, merely “acquiescence to the inevitable and not a waiver”. H. Inherent Time Requirements [35] As indicated, the first one and a half months before plea are to be considered neutral in any calculation. I have excluded themfrom the total time of delay, as that time is inherent in any criminal case of this nature, where no decision on plea can be made until thereis substantial disclosure and time to review that disclosure. The plea was entered on the accused’s second appearance in court.

SimilarlyI have determined that the four month adjournment by the initial trial judge to decide the issues raised on the voir dire is not excessive,and is to be expected to be inherent in the process. Similarly the short period of time for the Defence and Crown to consider theirpositions once it became clear that the judge could not continue with the case, was also reasonable and inherent in the process. Thosetimes have been excluded from any calculation. [36] This was not a particularly complex case.

It is not unusual to have similar trials last a day and a half in Provincial Court withargument and have the matter adjourned for a decision. The Court hears innumerable cases involving breathalyzer law and impaireddriving. While the law may be complicated, the evidence is not. [37] In my view, the record indicates that neither the Defence nor the Crown turned their mind to the issue of delay until after itbecame apparent that a new trial had to be set. I do not blame either the Defence or the Crown for the delay that occurred in this case.

Each adjournment was to a date within the average ‘time to trial’ or the average delay period when the adjournment was made. Theproblem may be that the average time to trial was, as was the feeling of the Provincial Court judges at the time, inherently too long.

I. Conclusion [38] An accused suffers prejudice whenever he or she is charged with a criminal offence. The longer the delay to trial the greaterthat prejudice. This is what has been described in the case law as inferred prejudice. A review of the law in the Province ofSaskatchewan seems to indicate that inferred prejudice alone rarely gives rise to a judicial stay. A good example would be R. v. Boutin,2011 SKQB 265, where Mr.

Justice Smith determined that the only prejudice to the accused was “the psychological weight of havingcharges outstanding” (para. 33). [39] In the case before me the applicant, like counsel, believed that the matter would be determined at least by September 30,2011. He felt emotional distress, including anxiety, requiring medication, embarrassment and financial loss as a result of the charges andthe delay in having the matter finally determined. That emotional distress is continuing and will continue after this date if the matterproceeds to trial at an undetermined time.

This prejudice particular to him is, as I had indicated, loss of income, embarrassment andstigma with his relatives, which would be relieved with some sort of closure of this matter. It includes anxiety requiring him to increasethe dosage in his medication for that very illness. That prejudice is real for him and is one factor to be considered in determining whetherthe delay was unreasonable or not. [40] On today’s date, January 24, 2013, it will be over three years since the charge. Still there is no end in sight. A trial date hasyet to be determined.

There will be a further delay. [41] I have determined that there is at least 23 1/4 months of the delay that is not attributable to the accused and has not beenspecifically waived. I have determined that the applicant suffered some prejudice over and above the prejudice that this right is designedto protect. In particular it has adversely affected his health and income among other things. [42] I am mindful that the delay in this case was as a result of an extraordinary and unforeseeable event, the inability of the judgeto continue.

However, the total length of the time is a function of the unavailability of court resources, because the average time to trialof all the cases set in 2009 and 2010 was excessive. [43] This is not a complicated case; two days was ample time to complete the evidence and the argument. Until the adjournmentof September 30, 2011, the Crown was satisfied that leaving the matter to be scheduled in the ordinary manner was sufficient, eventhough we know that the ensuing delay takes the case out of the Morin guideline for matters in Provincial Court.

No request for anexpedited trial date was made when the matter was adjourned for continuation of the trial. [44] I do not particularly blame the Crown for the delay. This was an institutional delay which since 2009 has been dealt with to agreat extent by the judges of the Provincial Court in Saskatoon. Be that as it may there was a delay like in Askov, (SCC), [1990] S.C.J. No. 106, that amounts to an unreasonable delay as contemplated by s. 11(

b) of the Charter. As Cory J. said inAskov (supra) at para. 61: To summarize, when considering delays occasioned by inadequate institutional resources, the question of how long a delay is too longmay be resolved by comparing the questioned jurisdiction to the standard maintained by the best comparable jurisdiction in the country.The comparison need not be too precise or exact. Rather, it should look to the appropriate ranges of delay to determine what is areasonable limit. In all cases it will be incumbent upon the Crown to show that the institutional delay in question is justifiable. [45] I therefore allow the application of the accused. I find that his rights under s. 11(

b) have been breached. In R. v. Rahey, (SCC), [1987] 1 S.C.R. 588, Mr. Justice Lamar said that a stay of proceedings is “the minimum remedy” in a case of breachof s. 11(

b) of the Charter. He stated in para. 48: If an accused has the constitutional right to be tried within a reasonable time, he has the right not to be tried beyond that point in time andno court has jurisdiction to try him or order that he be tried in violation of that right. After the passage of an unreasonable period of time,no trial, not even the fairest possible trial, is permissible. To allow a trial to proceed after such a finding would be to participate in a

further violation of the Charter . [ 46 ] I therefore conclude that the only possible remedy is that the charges against the accused be stayed pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms and therefore make that order. _______________________ B.M. Singer, J

[1] Trials are ordinarily scheduled to coincide with police witnesses’ schedules so that if a police officer is in a particular platoon, during

that day, he is available to testify at that time without the expense of overtime charged to the City. [2] I took the liberty of accessing statistics kept by our Chief Judge concerning time to trial in our court. In the fall of 2009 the average length of time to trial in Saskatoon was ten months. It should be noted that at that time this time to trial was considered too long by the judges of our court and steps were taken by the judges to alleviate this problem. These steps included case managements of cases involving self-represented accused and the introduction of a shadow court.

Steps were taken by the Crown to allow prosecutors in docket court to offer to the accused the most lenient sentence available if an early plea is entered. These measures have cleared up court space so that earlier trial dates may be offered. In the fall of 2010 the time to trial was eight months and in the fall of 2011 it was reduced to six months within the range suggested in R. v. Morin .

However, it should be noted that the time to trial statistics are based upon examining the court diary and do not take into account any lengthier delays to trial necessitated by scheduling trials in sync with the appropriate platoon. Copies of those statistical documents are appended to this decision. [3] If a judge is too ill to continue, “...it is reasonable for the Crown to apply to have the judge replaced, the inherent delay due to the judge’s illness charges to the Crown.” R. v. MacDougall , (supra) at para. 46.