Her Majesty the Queen - v. -, 2016 SKPC 154

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 154 Date: November 22, 2016 Information: 24537598 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Heath Robert Edwards Appearing: Mr. W. Collins For the Crown Mr. M. Owens For the Accused DECISION ON VOIR DIRE , TRIAL AND DELAY APPLICATION V.L. MONAR ENWEANI , J Background [ 1 ] The accused, Heath Robert Edwards, is charged with impaired driving and driving while over .08. These charges arose after the vehicle he was driving was stopped on Highway #11, just south of Saskatoon, Saskatchewan, on February 23, 2014.

[ 2 ] The trial of this matter was adjourned twice before ultimately commencing on December 16, 2015. The trial proceeded over several dates as follows: December 16 and 17, 2015; April 8, August 24, and August 25, 2016. [ 3 ] Prior to trial, counsel for the accused filed a Charter notice dated February 14, 2015 alleging breaches of the accused’s ss. 8 and 9 Charter rights, on the basis that there were no reasonable and probable grounds for arrest. Counsel asked that the evidence obtained as a result of those breaches be excluded pursuant to s. 24(2) of the Charter .

Counsel also later filed a Charter notice dated October 31, 2015 alleging breach of the accused’s s. 7 right to make a full answer and defence, seeking the remedy of a judicial stay. The basis of the s. 7 Charter notice was the alleged destruction of real time video by the RCMP. [ 4 ] Midway through the trial, the defence filed a third Charter notice dated August 8, 2016, alleging a violation of the accused’s right to be tried within a reasonable time as protected by s. 11(

b) of the Charter , and seeking the remedy of a judicial stay. [ 5 ] With respect to the trial, the Court heard evidence from five Crown witnesses and also from the accused. The evidence was led on the Charter voir dire with an agreement that all such evidence would be applied to the trial proper, subject to my rulings on the Charter applications. [ 6 ] The s. 11(

b) application was heard at the end of the trial on August 25, 2016. A further date was required to hear argument on the delay application and that occurred on September 23, 2016. I reserved my decision on all matters. Evidence [ 7 ] Constable Adam Ferguson was the arresting officer. At the time of the event in question he was a member of the RCMP posted in Saskatoon since December 8, 2012.

His experience in dealing with persons under the influence of alcohol up to February 23, 2014 included approximately 45 impaired related charges. [ 8 ] Constable Ferguson testified that on February 23, 2014 he was dispatched to a call at 6:28 p.m. The information from dispatch was that an off duty Saskatoon City Police officer had called in to report that he was behind a brown coloured Dodge Ram truck heading northbound on Highway #11 that was swerving in the driving lane.

After receiving this information, Constable Ferguson called the off duty Saskatoon City Police officer, Constable Derek Smith, and spoke with him to verify his location. Constable Ferguson was provided with the licence plate of the suspect vehicle both from dispatch and directly from Constable Smith. [ 9 ] Constable Ferguson got into a marked police vehicle, left the Saskatoon detachment office and headed southbound on Highway #11. He located the suspect vehicle, conducted a turn at the intersection of Victor Road and Highway #11, and continued northbound behind the vehicle verifying the plate number.

He said he observed the vehicle weaving or swerving in the lane. He estimated he was 30 to 40 feet behind the vehicle. Constable Vandall was headed in the same direction to assist him. After observing the vehicle for less than a minute, he decided to make a traffic stop and initiated his emergency equipment. [ 10 ] Constable Ferguson said the driver did not pull over until Constable Vandall pulled in front of the vehicle. He said it was only several seconds but it was an obvious difference from other traffic stops he had initiated.

Constable Ferguson stopped his police vehicle approximately ten feet from the rear end of the truck. The stop occurred at 6:50 p.m. [ 11 ] Constable Ferguson exited his police vehicle and approached the driver’s side door of the truck. He noted a male in the driver’s seat who appeared to be looking around in the truck for something. He said he had to knock twice to get the attention of the accused. The accused then rolled down the window and turned towards him. Constable Ferguson noticed he had extremely glossy and bloodshot eyes, and he could smell a very strong odour of liquor on his breath.

He estimated he was a foot away from the accused at the time. He asked the accused how much he had to drink and the accused told him that “he had some”.

[ 12 ] Constable Ferguson asked the accused to step out of the vehicle. He said the road was dry, smooth and level and the accused was wearing a kind of hiking shoe. He asked the accused to walk to his police car and said he noted that the accused seemed cautious and almost unsteady on his feet as he walked to the police vehicle. [1] He walked fairly slowly; seemed to be very careful on each step that he took, and each step was thought out like it had a process to it.

Constable Ferguson advised the accused he was under arrest for impaired operation of a motor vehicle. [ 13 ] At the police car, Constable Ferguson did a cursory search of the accused and placed him in the backseat of his police car. He asked the accused for his name and date of birth. He then read the accused his Charter rights, the police caution and breath demand. The accused replied that he understood and indicated that he did not wish to call a lawyer.

He drove the accused to the RCMP detachment in Saskatoon, and pulled into the cell block bay at 7:05 p.m. [ 14 ] Constable Ferguson stated that he then opened the back door of the police vehicle and advised the accused he could step out. Constable Ferguson said that as he did so, he noticed the accused seemed to stumble backwards, and then started to move forwards. He told the accused to walk straight through the doorway into the booking room in the detachment, and told him to have a seat on the wooden bench along the far wall in the booking room.

Constable Ferguson said that it seemed like the accused would duck or lower his posture a little bit through each doorway. [ 15 ] Constable Ferguson stated that he arrested the accused based on his previous experience in having dealt with impaired individuals, the swerving in the lane, the accused’s unsteadiness or the caution he took while walking to the police vehicle, his glossy and bloodshot eyes, the strong odour of liquor on his breath, and his admission that he had consumed alcohol.

Based on all of this, he was of the belief that the accused was not fit to drive and was impaired by alcohol. [ 16 ] Constable Ferguson remained in the booking room with the accused until 7:18 p.m. when the first breath sample was provided. As the accused walked through the doorway and into the breath test room, Constable Ferguson said he noted again that the accused appeared to put one foot very carefully in front of the other and he seemed to lower his head through the door frame as they entered the room.

Once the first breath sample was provided, Constable Ferguson escorted the accused back to the booking room where they sat together until the next sample was taken at 7:42 p.m. Constable Bouchard advised Constable Ferguson that a third sample would be necessary therefore Constable Ferguson took the accused back across the hall to the booking room. He remained in the booking room with the accused until 8:05 p.m. when he was advised the third sample could be taken.

He again escorted the accused across the hall to the breath test room where a third sample was obtained. [ 17 ] On cross-examination, Constable Ferguson acknowledged the accused was not speeding. He acknowledged that he never made reference in his notes to the accused having bloodshot eyes. He also acknowledged the accused walk from his truck to the police vehicle unassisted. He had no concerns that the accused had trouble comprehending anything that he said to him.

Constable Ferguson acknowledged there was nothing illegal about the driving behaviour. [ 18 ] Constable Ferguson was cross-examined on the observation he recorded in his report that the accused “ducked slightly when he walked through doorways even though the doorway was much higher than he was tall” [2] and his testimony on direct examination that it seemed like the accused would duck as he passed through each doorway. Constable Ferguson said the only time he saw the accused duck his head through the doorway was prior to the first breath sample when he went into the sample room.

However, on further cross- examination, he said he observed the accused ducking each time he went through the doorway to the breath test room. Later in cross- examination, when shown a video from the detachment, Constable Ferguson testified that it was difficult on the video to see what he observed that day because the video was choppy. [ 19 ] Constable Ferguson was also cross-examined about his observation noted in his report that the accused “stumbled back and then walked forward” [3] when stepping out of the police car at the detachment. Video from the bay at the detachment was played for him.

When it was suggested to him that if the accused stumbled it would appear on the video, he said that what he observed was “a slight unbalance leaning backwards...then moving forward, almost like a rocking back” [4] . [ 20 ] Constable Ferguson acknowledged that he did not note the accused having any difficulty walking from the bay at the detachment into the building. He also acknowledged that he saw no problem with the accused’s balance or dexterity when he came into the booking area.

[ 21 ] Constable Carey Vandall also testified. He assisted Constable Ferguson with the traffic stop and acted as cover officer. He testified that he observed the accused showing signs of heavy intoxication: his eyes were droopy, his movements were really slow, and he could smell a strong odour of liquor on his person. He was standing beside Constable Ferguson at the time he made these observations of the accused, about six to eight feet away from the accused. Constable Vandall said he followed as Constable Ferguson escorted the accused to the backseat of his police vehicle.

He followed Constable Ferguson and the accused back to the Saskatoon RCMP detachment. He said he recalled observing the accused stoop down as he walked through the doorway of the bay. [ 22 ] On cross-examination, Constable Vandall acknowledged that he read Constable Ferguson’s general report prior to testifying. Constable Vandall acknowledged he made no record in his notes of the accused ducking down through a doorway.

When it was suggested that he told the Court the accused ducked because he read it in Constable Ferguson’s report, he answered: “I definitely read it in there for sure”. [5] When shown video from the detachment bay area depicting the accused walking through a doorway into the detachment, Constable Vandall acknowledged that it did not look like the accused ducked down. [ 23 ] On cross-examination, Constable Vandall also acknowledged that his recollection of the stop was pretty minimal.

He did recall that it was dusk, that there was something large in the box of the truck, and that the wrapping covering the object was blowing in the wind. He had no recollection of the accused having bloodshot or watery eyes. He had no recollection of balance or dexterity issues on the part of the accused. [ 24 ] Corporal Raymond Bouchard also testified. He has been a police officer since November 2001. He is a qualified technician and was asked to take samples of the accused’s breath. He is qualified to operate the Intox EC/IRII instrument.

Corporal Bouchard tested the instrument to make sure it was working properly. Three breath samples were obtained of 290, 260 and 280 milligrams of alcohol in 100 millilitres of blood, respectively. He operated the instrument and Constable Ferguson conducted the observation periods. [ 25 ] Corporal Bouchard stated that before the first breath test, he observed that the accused moved very slowly. He said when the accused was providing the first sample, he was unsteady on his feet and at one point Corporal Bouchard thought he was going to sway and the mouthpiece was going to pull out of his mouth.

On cross-examination, Corporal Bouchard agreed that he made no observations of unsteadiness on the part of the accused on the second or third samples. [ 26 ] Constable Derek Smith also testified. He has been a constable with the Saskatoon City Police since August 11, 2006. He was off duty on February 23, 2014, driving back to Saskatoon with his family on Highway #11 when he came upon the accused’s vehicle. As he approached the vehicle he noted it was “slaloming back and forth between the lines in the right hand lane. It was a gradual - - it wasn’t quick or anything.

The speeds were consistent at 115 kilometres.” [6] He said that while he was following it, the “vehicle would pass the vehicle in front of it, not leaving enough room, would switch into the left-hand lane and then gradually drift back into the right lane, and at times cutting off vehicles” [7] . He also said he “noted when there would be a curve in the road that the vehicle would drift into the left hand lane from the right hand lane, would hit the shoulder, gradually drift back over into the correct lane, correcting its path” [8] . He followed the truck for close to half an hour.

He called the RCMP to report that he was possibly following an impaired driver. [ 27 ] Constable Smith said the roads were clear and dry. The sun was setting but it was still light out. To his mind, there was no reason for the truck to be driving back and forth between the lanes continuously. He said: “..it didn’t stop, it just–the vehicle would just go to a line, slightly cross over it, gradually drift back towards the other line, pass over that line, gradually drift back. It was just–it never stopped. It was continuous.” [9] [ 28 ] For most of the time, he was within half a kilometre of the truck.

He called 911 because he was concerned for public safety and he thought the driver was impaired. He testified that he has been involved in numerous impaired driving cases and has been the arresting officer on almost thirty occasions. [ 29 ] On cross-examination, Constable Smith confirmed that the only information that he provided to the 911 operator and RCMP communications with respect to the driving behaviour that he observed was that the truck was bouncing between the lines.

While he thought the truck was passing other vehicles too closely, he agreed there were no accidents, there was no evasive action taken by other

drivers, and he did not see other drivers applying their brake lights. He agreed the driver of the truck was not contravening any rules of the road. [ 30 ] Constable Smith could not recall whether there was a fridge in the back of the truck. He did recall seeing two police cars with their lights on pass him and pull in behind the truck. He agreed it took the truck about ten seconds to stop and that there was nothing out of the ordinary about the way the vehicle pulled off the roadway. [ 31 ] Andre Denis also testified on behalf of the Crown. He is a civilian member who is the manager of the Protective Technical Services

section for “F” Division in Saskatchewan. The Protective Technical Services

section installs and services all of the security devices, including video systems and interviewing systems in all of the detachments. Mr. Denis said that at the Saskatoon Detachment there are 22 cameras in the cell block. Two images per second are recorded on every camera. This is in contrast to real time video, such as you would see on television, which is 30 frames per second. [ 32 ] Mr. Denis testified that with two images per second being recorded, you could not see a person’s every movement. However, at one image per second, you could see somebody throwing a punch.

He said: “There’s lots of action that happens that you cannot see. You get a general idea of what’s going, and that’s what we needed. That’s what the system is created for.” [10] [ 33 ] On cross-examination, Mr. Denis confirmed that the hard drive does not record at 30 frames per second and that it cannot be watched in real time. He said even at two images per second, he would expect to see someone duck under a door or stumble backwards. [ 34 ] The accused testified that on February 23, 2014, he woke up in the basement of his parents’ home near Craik, Saskatchewan at 5:00 a.m. to watch the Olympic hockey game.

He watched that game and then another. It was around noon and he had some lunch in the basement. He had a beer towards the end of the second hockey game and he had two more beer with his lunch. He said he had no other liquor that day. [ 35 ] After lunch he loaded a fridge he was taking to his girlfriend’s and did a few other things around the farm. He said he took off for Saskatoon between 5:00 and 6:00 p.m. It was fairly windy but sunny when he left. He was driving a 2009 Dodge Ram half ton.

He said the wind did seem to be pushing him, there were gusts, and it was a little bit hard to control. [ 36 ] The accused said he saw two police vehicles with their emergency lights on coming at him really fast. He slowed down and pulled over as he thought there was an accident and the vehicles would go by him. However, they pulled in behind him and were staying behind him, so he pulled over. It was a few seconds before he stopped and he signalled and pulled onto the shoulder. [ 37 ] The accused testified that Constable Ferguson came to his window and knocked two taps.

He was looking around for his license and registration and found them in his wallet which was in the console. He rolled down the window and Constable Ferguson asked him if he had anything to drink. He replied that he had had a couple earlier. Constable Ferguson asked him to get out of the vehicle. Constable Ferguson did not ask him for his license or registration. [ 38 ] The accused said that he took his seatbelt off, opened the door and stepped out. He said his balance was fine and he did not stumble. He got into the back of the police vehicle.

Constable Ferguson told him he was under arrest and asked if he wanted a lawyer to which he replied no. At the detachment, Constable Ferguson opened the door of the police vehicle and he stepped out. [ 39 ] The accused denied that Constable Ferguson was 40 feet behind him when he activated his emergency lights. He said he saw the police cars about half a kilometre away and they came up racing with their lights on and he was sure they were going to go around him.

He also said that the alcohol he drank did not affect his ability to operate his vehicle. [ 40 ] On cross-examination, the accused said the hockey games finished around 11:00 or just before dinner. He said he knew it

was noon because he had lunch and noon is when he usually eats. He did not remember what food he had in his fridge, but he remembered that he had three beer in his fridge. He said he finished the beer around 1:00 p.m. He was certain it was 1:00 p.m. because that is the time he goes outside on the farm. He said he only had three beer the entire day and nothing after 1:00 p.m. [ 41 ] When asked if he agreed that he was swerving between the lines of the lane, he said: “Yeah, I was being pushed a little.” [11] There were no mechanical problems with the truck. He acknowledged he did not stop to check his load.

He said it seemed to be fine and the wind was causing just a little bit of a push. He also said his truck was six to seven feet wide and the lane was eight feet wide. On further cross-examination he conceded he did not know how wide his truck or the lane was. [ 42 ] The accused denied that he ducked his head as he went through doorways. He conceded that he positioned his head downwards, like he was looking down, but said it was not a large movement. He did not think he walked slowly, but said he might have inside the detachment as he was not sure where he was going.

He denied that when passing vehicles he was closer than he should have been. He said he felt nervous when providing his first breath sample.

Issues [ 43 ] This case raises the following issues: 1) Did Constable Ferguson have the necessary reasonable and probable grounds to arrest the accused for impaired driving and to make a breath test demand pursuant to s. 254(3) of the Criminal Code ? 2) Was the accused’s right to make full answer and defence as protected by s. 7 of the Charter violated because the Crown did not provide in its disclosure video recorded in real time format? 3) If there was a violation of the accused’s Charter rights under ss. 7, 8 or 9, is the remedy of exclusion of evidence or a stay warranted? 4) Does the evidence of the observation period raise a reasonable doubt that the breathalyzer was operated properly, thereby rebutting the presumption in s. 258 of the Criminal Code ? 5) Has the Crown proven beyond a reasonable doubt that the accused operated a motor vehicle while impaired by alcohol? 6) Was the accused’s right to be tried within a reasonable time under s. 11(

b) of the Charter violated? Analysis 1) Did Constable Ferguson have the necessary reasonable and probable grounds to arrest the accused for impaired driving and to make a breath test demand pursuant to s 253(4) of the Criminal Code ? [ 44 ] Where the Crown seeks to rely on breath samples obtained as a result of a warrantless search, the onus is on the Crown to prove that the officer had reasonable and probable grounds to make the breath demand.

There is both a subjective and an objective component to establishing reasonable and probable grounds; that is, the officer must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code , and there must be reasonable grounds for this belief: R v Shepherd , 2009 SCC 35 , [2009] 2 SCR 527 at para 17 [ Shepherd ]. [ 45 ] In determining whether reasonable and probable grounds exist, the totality of the circumstances should be considered. Further, the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence

of impaired driving or driving over 80 before making the demand. He need not demonstrate a prima facie case for conviction beforepursuing his investigation: Shepherd at para 23. [46] As Mr. Justice Caldwell noted in R v Gunn, 2012 SKCA 80 [Gunn], where an individual challenges the validity of a breathdemand on the basis that the police officer’s belief was not reasonable, the question for the trial judge is whether, on the whole of theevidence adduced, a reasonable person standing in the shoes of the officer would have believed the individual’s ability to operate a motorvehicle was impaired (para 8).

With respect to the test for reasonable and probable grounds, Mr. Justice Caldwell stated as follows: [7] . . . the officer must subjectively (or honestly) believe the individual has driven while impaired or “over .08” within the precedingthree hours and that belief must be rationally sustainable on an objective basis (see: R v Bernshaw, (SCC), [1995] 1SCR 254, at para. 48).

This does not mean that the Crown has to demonstrate a prima facie case for conviction (R v Shepherd, 2009 SCC35 , [2009] 2 SCR 527, at para. 23), let alone prove its case beyond a reasonable doubt (R v Bush, 2010 ONCA 554 ,259 CCC (3d) 127); rather, the standard of “reasonable grounds to believe” is one of lesser probability which simply requires thereviewing court to determine whether the factors articulated by the officer who made the breath-demand were reliable and were capableof supporting the officer’s belief that the individual had driven while impaired or “over .08” within the preceding three hours. [47] The test articulated in Gunn was applied and explained by the Saskatchewan Court of Appeal in R v Churko, 2014 SKCA 41.

There, Mr. Justice Ottenbreit stated as follows: [5] . . . The reasonableness of the police officer’s belief must be considered by the trial court from the vantage point of whether theobservations and circumstances articulated by the officer are rationally capable of supporting the inference of impairment which is drawnby the officer; however, the Crown does not have to prove the inferences drawn were true or even accurate. In other words, the factorsarticulated by the arresting officer need not prove the accused was actually impaired.

This is so because that is the standard of proofreserved for a trial on the merits, a proof beyond a reasonable doubt. [48] On the basis of Constable Ferguson’s testimony, I am satisfied that he subjectively had an honest belief that the accused’sability to operate a motor vehicle was impaired by alcohol at the time he made the arrest and the breath demand.

For the reasons thatfollow, I am also satisfied that his belief was objectively reasonable. [49] Defence counsel argued that Constable Ferguson was not a credible witness, and therefore his evidence could not be reliedupon to support a finding that reasonable and probable grounds existed for the arrest. [50] It is well established that the trier of fact in any case, including a criminal case, may believe all, some or none of the evidenceof any witness: R v Smith 2016 SKQB 214 at para 19. [51] Generally speaking, I found Constable Ferguson to be a credible witness.

While there were some inconsistencies in hisevidence, this is not surprising, given that the incident in question occurred over two years ago. In fact, all of the witnesses (except forMr. Denis, who was not asked the question) admitted that their memories were impacted by the passage of time. Constable Fergusonalso appeared to overstate some of the details of his evidence during the course of a lengthy and vigorous cross-examination; however, Ido not believe that it was his intention to mislead the Court.

With the exception of a few of his observations, which I will specificallyaddress, I accept his evidence. [52] At the time the breath demand was made, Constable Ferguson testified that he had the following indicia of impairment:

a) thepolice had been called by a citizen who happened to be an off-duty Saskatoon City Police officer, reporting that he was behind a brownDodge Ram truck heading northbound on Highway #11 that was swerving in the driving lane;

b) he confirmed that the licence number ofthe accused’s vehicle matched the information he received from dispatch and from Constable Smith;

c) he observed the truck weavingor swerving in the driving lane from 30 to 40 feet behind it;

d) the accused took slightly longer to pull his vehicle over to the side of theroad compared to other traffic stops Constable Ferguson had initiated;

e) the accused appeared to be looking around his vehicle andConstable Ferguson had to knock on the truck window to get his attention;

f) glossy and bloodshot eyes;

g) a strong odour of liquor onthe accused’s breath;

h) the accused admitted he had consumed alcohol; and

i) the accused walked fairly slowly and carefully to thepolice vehicle.

[ 53 ] I accept all of the indicia of impairment articulated by Constable Ferguson, with the exception of one. In particular, while I accept that Constable Ferguson sped up to close the distance between his vehicle and the accused’s, and that he verified that the licence plate matched the information he had been given, I do not accept that Constable Ferguson observed the accused’s truck for almost a minute, from 30 to 40 feet behind it, before activating his emergency lights.

Constable Smith, the off duty police officer, testified that he saw two police cars with their emergency lights activated come up behind him, pass him and then stop the accused’s truck. He was generally positioned about 500 metres behind the truck. Constable Vandall’s recollection was poor, but he said that at some point, he observed Constable Ferguson activate his emergency lights, and then he pursued northbound with him.

The accused testified that he saw two police cars from about half a kilometre away come up racing with their lights on. [ 54 ] Constable Ferguson’s evidence on this point is at odds with that of the other witnesses.

The weight of the evidence suggests that Constable Ferguson approached the truck rapidly from behind with his emergency lights activated, and therefore had limited opportunity to observe the driving behaviour. [ 55 ] Setting aside Constable Ferguson’s evidence of his own observations of the accused’s driving behaviour, the question is whether the remaining indicia of impairment, which I do find reliable and which I do accept, are capable of supporting Constable Ferguson’s belief that the accused had driven while impaired or “over .08" within the preceding three hours.

Bearing in mind the test articulated in Gunn , I find that Constable Ferguson’s belief was objectively reasonable, and that a reasonable person standing in the shoes of Constable Ferguson would have believed that the accused’s ability to operate a motor vehicle was impaired. [ 56 ] I find there was no violation of the accused rights under s. 8 or 9 of the Charter. 2) Was the accused ’s right to make full answer and defence as protected by s.7 of the Charter violated because the Crown did not provide in its disclosure video recorded in real time format? [ 57 ] Counsel for the accused filed a Charter notice alleging a violation of s. 7 due to the failure of the RCMP to maintain and disclose real time video in its possession.

In other words, it was alleged that the RCMP had real time video pertaining to the charge and that it destroyed or failed to maintain the video. [ 58 ] Video from the RCMP detachment was disclosed to counsel for the accused. Counsel for the accused was also advised by Crown counsel that the video surveillance system at the Saskatoon RCMP detachment records at two frames per second, not in real time, such that there was no real time video on the hard drive to disclose.

This information was conveyed to defence counsel in July, 2015 and in August, 2015. [ 59 ] The trial ultimately commenced on the third scheduled trial date in December of 2015. The two previous trial dates had been adjourned at the request of defence counsel, primarily on the basis that additional time was required to investigate the alleged destruction of real time video. During the trial itself, a significant amount of time was expended on this issue. [ 60 ] Mr. Denis presented as forthright and credible, and I accept his evidence.

It was clear from his testimony that the Saskatoon RCMP detachment cameras record two images per second. The hard drive does not record, nor can it be watched, in real time. There was no failure to maintain, and no destruction, of evidence. [ 61 ] Counsel for the accused did not address his s. 7 Charter notice in his argument at trial - essentially conceding that there was no s. 7 breach.

In all of the circumstances, I find that there was no violation of s. 7 of the Charter. 3) If there was a violation of the accused ’s Charter rights under ss. 7, 8 or 9, is the remedy of exclusion of evidence or a stay warranted?

[62] I am not satisfied that there has been any violation of the accused’s rights under ss. 7, 8 or 9 of the Charter. Therefore, neitherthe exclusion of evidence nor a stay is warranted. The evidence led on the voir dire will be admitted on the trial proper. 4) Does the evidence of the observation period raise a reasonable doubt that the breathalyzer was operated properly, therebyrebutting the presumption in s. 258 of the Criminal Code? [63] In the case of R v By, 2015 SKQB 86 [By], Justice Barrington-Foote confirmed that the presumption of accuracy in s. 258(1)(

c) may be rebutted by evidence raising doubt as to whether the breathalyzer malfunctioned or was operated improperly. He further heldthat evidence that the observation periods were not properly conducted constitutes evidence that the breathalyzer was improperlyoperated, because the observation periods are an essential part of the testing procedure. [64] Here, counsel for the accused argued that the observation periods were not conducted properly because Constable Fergusonwas taking notes while sitting with the accused.

Counsel also suggested that the Crown did not lead sufficient evidence from ConstableFerguson regarding his conduct during the observation periods. [65] I find there is no evidence that the observation periods were conducted improperly. There is simply speculation on the part ofthe defence. [66] Constable Ferguson’s evidence establishes that he sat in the booking room in close proximity to the accused during theobservation periods, and that he walked the accused from the booking room back and forth into the breath test room. Any loss of visualcontact would have been brief.

The accused acknowledged that Constable Ferguson was in his presence the entire time he was at thedetachment. He could see him the entire time and the only time his back was to Constable Ferguson was when he provided his breathsamples. On cross-examination, he agreed that Constable Ferguson stayed within about five feet of him the entire time. [67] Furthermore, there is no evidence before me that there was burping or belching by the accused.

The accused testified, and hedid not say that he burped or belched. [68] This case is clearly distinguishable from the facts in R v Styles, 2016 SKPC 7 , 2016 SKPC 007 [Styles] and By wherethere was cogent evidence that the observation periods were not conducted properly. In Styles, the evidence showed that for the majorityof the observation periods, the police did not observe the accused at all.

In By, the evidence revealed that the police officer was presentfor less than nine minutes of the 15 minute observation period. [69] I find that the evidence in this case does not raise a reasonable doubt as to the proper operation of the breathalyzer. 5) Has the Crown proven beyond a reasonable doubt that the accused operated a motor vehicle while impaired by alcohol? [70] A conviction for impaired driving will result when the trier of fact is satisfied beyond a reasonable doubt that an accusedperson has driven while his ability to drive is impaired, even slightly, by alcohol or a drug: R v Stellato, (ON CA),[1993] OJ No 18 (CA), affm’d (SCC), [1994] 2 SCR 478 (SCC). [71] As recently noted by Mr.

Justice Kalmakoff in R v Smyth , 2016 SKQB 214, a trial judge must consider all of the evidence -positive, negative, or neutral - bearing on the question of impairment, in determining whether the Crown has proven its case beyond areasonable doubt. I must consider all of the evidence cumulatively, and not in a piecemeal fashion. In this case, credibility is a centralissue, as there is conflicting evidence on the issue of impairment. [72] The accused testified in his own defence. I am prepared to accept some limited aspects of his testimony.

In particular, Iaccept his evidence that he saw two police cars with their emergency lights engaged driving quickly towards him, as this evidence isconsistent with Constable Smith’s evidence. Further, I accept that he did not stumble or duck his head through doorways at thedetachment. Stumbling and ducking describe obvious, not subtle, movements that would have been captured on the detachment video.

[ 73 ] Despite my acceptance of these portions of the accused’s testimony, generally speaking, I found the accused’s evidence to be self-serving and unreliable. On the whole, his evidence struck me as contrived - designed to explain away various observations and behaviour. In particular, the accused downplayed his actions and his consumption of alcohol. Although he was generally vague on details of the morning and afternoon leading up to the arrest, he was certain that there were only three beer in his fridge and that he only drank three beer.

He could not recall what else he had in his fridge or what he ate for lunch. He was certain about the time he had lunch and when he finished the beer, yet he could not satisfactorily explain how he knew what time he ate lunch that particular day. [ 74 ] The accused blamed his swerving in the lane on the wind. I do not accept this explanation. In his testimony, he said that the wind was causing just “a little bit of a push” and that it was “a little bit hard to control”.

However, even a little bit of a push by the wind would not account for or explain his driving behaviour, which consisted of a continuous pattern of drifting between the lines of the lane and from one lane to another when there was a curve in the road. The accused also acknowledged that he was not concerned enough by the wind to stop to check his load on the highway. [ 75 ] His credibility was further damaged when he testified that his truck was six to seven feet wide, and that the driving lane was only slightly wider, at eight feet wide.

On cross-examination, he conceded that he did not know how wide his truck or the lane was. I do not believe that his unsteadiness during the first breath sample, or his slow movements at the detachment, are attributable to his nervousness and not knowing where to walk. [ 76 ] Constable Smith presented as a credible witness and I accept his evidence. He testified in a straight forward manner and appeared to have a good recollection of the incident.

He observed the accused’s vehicle drifting back and forth continuously between the white shoulder line and the centre dividing line, drifting to the left hand lane from the right hand lane where there was a curve in the road, and almost cutting off vehicles when passing. He observed this driving behaviour for close to half an hour and was concerned enough for public safety that he called 911 to report a possible impaired driver. Constable Smith’s experience includes being the arresting officer on close to 30 impaired driving cases.

I am satisfied from his evidence that the accused’s driving behaviour was a substantial departure from the normal manner of driving. [ 77 ] I accept the evidence of Constable Ferguson that the accused did not pull his vehicle over immediately; that he noticed a strong odour of liquor on the accused’s breath, that his eyes were glossy and bloodshot, and that he walked slowly and carefully from his truck to the patrol car at the roadside. [ 78 ] Much time was spent during trial and in argument on whether the accused ducked or stumbled at the detachment.

Constable Ferguson noted in his report that the accused ducked slightly. At trial, he was inconsistent in his testimony about how many times he made this observation. The accused denied that he ducked, but acknowledged that he looked down as he walked through the doorway. Constable Ferguson also noted in his report that the accused stumbled back and then walked forward when getting out of the police car at the detachment.

On cross-examination, he conceded the accused did not stumble, and said what he observed was a slight imbalance leaning backwards. [ 79 ] I find there is no evidence of significant motor impairment on the part of the accused at the detachment. The video does not depict the accused stumbling or ducking down in an obvious fashion. Had this occurred, one would expect to see it on the video, even at two images per second. However, the video does appear to depict the accused lowering his head, as if looking down, when walking under a doorway.

I accept that there are limitations to what can be seen on the detachment video. I also accept that Constable Ferguson observed subtle aspects of movement on the part of the accused that may not be readily apparent on the video. [ 80 ] Constable Vandall’s evidence is of limited assistance to the Court on the issue of impairment. He had minimal recollection of the traffic stop.

Further, the Court cannot be confident that his evidence was not influenced by his reading of Constable Ferguson’s report prior to giving his testimony. [ 81 ] Corporal Bouchard also testified and he presented as a forthright witness who gave his evidence in a fair manner. I accept his evidence that the accused moved very slowly at the detachment, and that he observed him to be unsteady on his feet when providing the first breath sample.

[ 82 ] Looking at all of the evidence, there are some factors which suggest the accused was not impaired - for example, there was no slurred speech, no inability to comprehend, and no obvious motor impairment on the part of the accused. However, there are numerous factors consistent with impairment. In particular, there is compelling evidence of a pattern of driving behaviour that departs substantially from the normal manner of driving, coupled with the admission of the accused that he consumed alcohol, the smell of alcohol on his breath, glossy and bloodshot eyes, and subtle signs of impaired motor ability.

Constable Smith, who was off duty at the time, followed the accused’s vehicle on Highway #11 for a significant period of time, which he estimated it to be close to half an hour. During this time he saw a continuous pattern of driving that caused him to be so concerned that 911 was called. At trial, he said he called police because of fear for “public safety, just in case the vehicle caused a crash” and he thought he potentially could be first on scene to offer assistance if the vehicle got into an accident.

Both Constable Ferguson and Corporal Bouchard noted the accused to walk or move slowly and to be unsteady on his feet at some point. [ 83 ] Having reviewed and considered the evidence as a whole, I find I am not left with a reasonable doubt about the guilt of the accused. The above-noted constellation of factors considered together leads me to the inference that the accused’s ability to operate a motor vehicle was impaired by alcohol to some degree.

I am satisfied beyond a reasonable doubt that the test in Stellato has been met and that all the elements of the offence have been established beyond a reasonable doubt. 6) Was the accused ’s right to be tried within a reasonable time under s. 11(

b) of the Charter violated? [ 84 ] The Supreme Court of Canada released its decision in R v Jordan , 2016 SCC 27 [ Jordan ] on July 8, 2016. On August 8, 2016, defence counsel filed a Charter notice alleging a violation of the accused’s s. 11(

b) right to be tried within a reasonable time. [ 85 ] The delay application was heard at the end of the trial on August 25, 2016. An affidavit by the accused was filed as part of the delay application, and the accused was cross-examined on his affidavit. On September 23, 2016 I heard argument from both Crown and defence counsel on the issue of delay. Both counsel cited certain cases to me for consideration, including Jordan , but neither filed written submissions. I reserved my decision on the matter.

Since the time the delay application was argued, several decisions applying Jordan have been released, including: R v Coulter , 2016 ONCA 704 , R v Keller , 2016 SKQB 319 and R v Park , 2016 SKPC 137 . [ 86 ] In Jordan , the Supreme Court of Canada articulated a new framework for s. 11(

b) applications. The Court noted that the right to be tried within a reasonable time is central to the administration of Canada’s system of criminal justice. An unreasonable delay denies justice to the accused, victims and their families, and the public as a whole: Jordan at para 19 . [ 87 ] The decision in Jordan establishes a presumptive ceiling of delay calculated from the date of the charge, to the actual or anticipated end of trial, beyond which the delay is presumed to be unreasonable. For cases tried in provincial court, the presumptive ceiling is18 months.

However, delay waived or caused by the defence does not count in calculating whether the presumptive ceiling has been reached. Further, the presumption of unreasonable delay can be rebutted where the Crown establishes the presence of exceptional circumstances. If no exceptional circumstances exist to justify a delay of more than 18 months, a stay will follow. Once the ceiling is breached, prejudice on the part of the accused persons is presumed, and need not be proven. [ 88 ] In this case, I must first assess the total delay. Information #24537598 was sworn on March 24, 2014.

Evidence and argument in relation to the trial was completed on August 25, 2016. Evidence on the delay application was heard on August 25, and counsel’s arguments were heard on September 23, 2016. My decision on all matters was reserved until November 22, 2016. Accordingly, the total time between the charge date and the rendering of my decision is 32 months. On the face of it, the total delay exceeds the presumptive ceiling. History of the proceedings [ 89 ] The proceedings in this matter can be summarized as follows: ∙ on March 24, 2014 the Information was sworn before a Justice of the Peace;

∙ on April 13, 2014 the accused had his first appearance in Court. Defence counsel appeared on behalf of the accused and the matter was adjourned by consent to May 22, 2014 for further disclosure; ∙ on May 22, 2014 defence counsel advised the Court that he was awaiting the video. The matter was adjourned by consent to June 19, 2014; ∙ on June 19, 2014 defence counsel advised that he had been waiting for disclosure of the cell video and the Crown had provided it to him that date. He asked for an adjournment to July 3, 2014 to consult with his client and watch the video.

Crown counsel consented to the adjournment; ∙ on July 3, 2014 defence counsel advised the Court that the video disc provided by the Crown was blank and that he wanted to return it to the Crown to obtain another one. The matter was adjourned by consent to July 22, 2014; ∙ on July 14, 2014 defence counsel advised that the Crown had on that date supplied him with a new video disc. The matter was adjourned by consent to July 31, 2014; ∙ on July 31, 2014 defence counsel entered a not guilty plea on behalf of the accused and the trial was set for March 24, 2015.

The first available trial date offered was December 22, 2014. Defence counsel acknowledged that he was not available on this date and conceded that the three month period between December 22, 2014 and the scheduled trial date of March 24, 2015 is attributable to the defence; ∙ a case management conference was held on January 30, 2015; ∙ on the first trial date of March 24, 2015, defence counsel requested an adjournment. He advised the Court that a new issue had recently arisen.

He said he had a transcript of evidence provided by Corporal Gardipee in another matter, which suggested that live time video from the RCMP detachment was available. He acknowledged he had the stop time video, but indicated he wanted real time video. Further, he said he had asked for disclosure with respect to Constable Vandall, but had not yet received it. Crown counsel indicated that he had been advised by the RCMP that the video provided to defence counsel was the only video the RCMP had, and that video was recorded in still pictures, two or three per second.

Crown counsel indicated that Constable Vandall’s notes would be obtained and provided to defence counsel. Defence counsel expressly waived delay, commenting that it would give him an opportunity to look further and deeper into the video situation. Delay from March 24, 2015 to the second trial date of September 2, 2015, a period of approximately five months, was waived by defence counsel; ∙ a case management meeting was held on June 5, 2015; ∙ counsel corresponded regarding the issue of what video was available from the RCMP.

On March 27, 2015 defence counsel wrote to Crown counsel asking for the following information: “1. What is the name of the video surveillance/recording system at your detachment? 2. Who maintains that system? 3. For how long is the real time video maintained on the hard drive at your detachment? 4. Is it possible to transfer onto a disc or thumb drive real time video maintained on the hard drive? 5.

If it is not possible to transfer onto a disc or thumb drive the real time video, why is that? ∙ a case management meeting occurred on July 10, 2015 ∙ on July 10, 2015, Crown counsel advised by letter that “the video surveillance system at the Saskatoon RCMP detachment records at two frames per second. That is the same whether watching the recording on the hard drive or if watching a disc of the recording”.

∙ on July 14, 2015 defence counsel wrote to Crown counsel asking for specific responses to the five questions itemized in his letter of March 27, 2015. ∙ on July 16, 2015 Crown counsel responded by letter indicating that questions one and two had been forwarded to the RCMP, and with respect to questions three to five “the system records at two frames per second.

The system does not record in “real time” so there is no “real time” video ever on the hard drive.” ∙ a case management meeting occurred on July 17, 2015 ∙ on July 28, 2015, defence counsel wrote indicating that he would like to speak to whoever provided Crown counsel with the information that the system records at two frames per second when sworn evidence from Constable Gardipee contradicted this information. ∙ on August 25, 2015, Crown counsel forwarded a memorandum from André Denis, Manager RCMP “F” Division, PTSS, to defence counsel which read in part as follows: 1.

The digital video recorders that are recording video in the Saskatoon Detachment are MITSUBISHI DIGITAL RECORDER DX- TL4709. 2. The Cell Block CCVE recording system in the Saskatoon Detachment is maintained by the RCMP “F” Division Protective Technical Services

Section (PTSS). 3. Video is retained for a minimum of 180 days on the hard drives in the digital video recorders located in the Saskatoon Detachment. Video is not recorded in real time. Video from each camera is recorded at the rate of two frames per second. 4. Yes, video stored on the hard drives in the digital video recorders can be transferred to either thumb/flash drives or onto DVD disks. In the Saskatoon Detachment this is done via Mitsubishi DX-PC55U/DX-PC60U software. Proprietary viewing software is provided with the downloaded video clips.

For your information, the system in Kindersley is also equipped with Mitsubishi digital video recorders (DVRs) which also record at the rate of two frames per second. All systems in “F” Division are recording at the rate of two frames per second and all systems are maintained by PTSS. When playing back video downloaded from Mitsubishi DVR with the Mitsubishi viewing software, you can STEP thru each frame one at a time and two frames will be displayed for every second of recording for every camera. ∙ on the second trial date of September 2, 2015, defence counsel requested another adjournment of the trial.

Defence counsel advised that he had received the notes of Constable Vandall on September 1, 2015. With respect to the matter of video evidence, defence counsel indicated that he did not receive a satisfactory response to his March 27, 2015 letter until August 25, 2015. Based on this response, he felt there was contradictory evidence from the RCMP and he needed time to look into the contradiction and to give notice of a Charter application. He said that he had not had a chance to call Mr. Denis prior to trial.

Crown counsel stated that all it had was the detention video from the RCMP and that it had been previously disclosed to defence counsel. The Crown indicated it was ready to proceed. The Court granted the adjournment requested by defence counsel to allow him to pursue his investigation. Defence counsel did not expressly waive delay. Rather, he stated that if delay became an issue, it could be argued at that stage. Crown counsel also indicated his view that the Charter notice alleging breaches of ss. 8 and 9 lacked particulars.

While the presiding judge noted she did not see any ambiguity in the notice, it was suggested that this issue could be discussed at case management which was scheduled to occur on October 9, 2015. New trial dates were scheduled for December 16 and 17, 2015 (1.5 days);

∙ case management conferences occurred on October 9 and November 6, 2015; ∙ at the beginning of the third trial date on December 16, 2015, Federal Crown counsel brought an application to set aside a subpoena that was issued to Corporal Gardipee on December 11, 2015 by a Justice of the Peace. The Federal Crown asserted that the subpoena was not properly served on Corporal Gardipee, who resided in Alberta, and that the subpoena had no effect outside Saskatchewan.

Federal Crown counsel also argued that Corporal Gardipee had no material evidence to provide, and stated that the best evidence regarding video recordings at the Saskatoon RCMP detachment would come from Mr. Denis, who was available to give evidence. After hearing submissions, I ruled that the subpoena issued to Corporal Gardipee was not valid in that it did not comply with s. 699(2) (

b) of the Criminal Code , it had not been properly served and Corporal Gardipee did not have relevant evidence to provide as he had no first hand knowledge of the investigation regarding the accused or the video surveillance system in the Saskatoon RCMP detachment; ∙ on December 17, 2016, Crown counsel raised an issue respecting the sufficiency of the Charter notices.

In particular, with respect to the s. 7 Charter notice, Crown counsel argued that the accused had not met the limited evidentiary burden of showing that a valid issue existed for consideration, as Corporal Gardipee would not be testifying, and that there should be no voir dire . With respect to the ss. 8 and 9 Charter notice, Crown counsel argued that there were insufficient particulars of the alleged breaches provided.

Crown counsel asked that the trial proceed without the accused being allowed to raise any Charter issues; alternatively, it was argued that defence counsel should be required to call evidence on the s. 7 Charter application first.

Defence counsel argued that his s. 7 Charter notice and the affidavit filed in support met the limited evidentiary burden of showing that a valid issue existed for consideration, that the matter had been case managed several times, and that his argument with respect to the alleged breaches of ss. 8 and 9 was essentially that the Crown would not be able to establish reasonable and probable grounds for arrest.

Since this was the third trial date, witnesses were present, including one from out of province, the charges dated back to February, 2014, there had been numerous case managements, the issues were well known to counsel and the Court had been advised that there was a witness available that could address the issue of the video, I ruled that the trial would proceed and the accused would be allowed to raise the Charter issues. The trial commenced with evidence from Constable Ferguson. His cross-examination was not completed on December 17. The trial was adjourned to February 26, 2016.

The matter was set for one day and the trial sheet indicated the total number of witnesses anticipated from Crown and defence was four to five; ∙ Constable Ferguson was not available on February 26, 2016. Counsel appeared before the trial coordinator on January 4, 2016 and the trial was re-scheduled for April 8, 2016; ∙ on April 8, 2016, the Court heard evidence from Constables Smith and Vandall. The cross-examination of Constable Ferguson was completed. As well, Mr. Denis was called as a witness on behalf of the Crown and he testified in direct examination. However, his cross-examination was not completed.

In response to a question from the Court asking whether counsel saw the trial concluding by the end of the day, defence counsel remarked that the matter was getting to be too delayed and said s. 11 of the Charter “is starting to come into play in my mind.” The Court asked that counsel speak with the trial coordinator as soon as possible to

schedule two days to ensure that the trial would be completed; ∙ on April 12, 2016 counsel appeared before the trial coordinator and continuation dates of August 24 and August 25, 2016 were set. The trial sheet indicates that no earlier dates were offered; ∙ on August 24, 2016, the Court heard evidence from Mr. Denis, Constable Bouchard and the accused, Heath Edwards. The Court heard argument from counsel on August 24 and on the morning of August 25. On August 25, 2016 the Court heard evidence regarding the delay application and the accused was cross-examined on his affidavit; ∙ on September 23, 2016 the Court heard argument from counsel regarding the delay application. Defence Delay

[90] Delay waived or caused by the defence does not count in calculating whether the presumptive ceiling has been reached. Therefore, I must deduct any delay for which the accused is responsible when determining the net delay between the charge date andcompletion of trial. [91] It was noted in Jordan that defence delay has two components: the first is delay waived by the defence, and the second isdelay caused solely by the conduct of the defence. In this case, defence counsel has conceded that eight months of the total delay areattributable to the defence.

In particular, defence waived a period of delay of approximately five months between the first and secondtrial dates. As well, defence counsel acknowledged that there was a three month delay in the setting of the first trial date due to hisunavailability. [92] I must next consider whether any portion of the overall delay is due to delay caused solely by the conduct of the defence. This second component of defence delay was described by the Supreme Court of Canada in Jordan as follows: [63] The second component of defence delay is delay caused solely by the conduct of the defence.

This kind of defence delay comprises“those situations where the accused’s acts either directly caused the delay . . . or the acts of the accused are shown to be a deliberate andcalculated tactic employed to delay the trial” (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay,which include frivolous applications and requests, are the most straightforward examples of defence delay.

Trial judges should generallydismiss such applications and requests the moment it becomes apparent they are frivolous. [64] As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but thedefence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time duringwhich the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This shoulddiscourage unnecessary inquiries into defence counsel availability at each appearance.

Beyond defence unavailability, it will of course beopen to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R v Elliott (2003), (ONCA), 114 CRR (2d) 1 (Ont CA), at paras. 175-82). [65] To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, thedefence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applicationsand requests that are not frivolous will also generally not count against the defence.

We have already accounted for proceduralrequirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence.While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions. [93] The Crown argues that some period of the time between first appearance on April 13, 2014 and the date on which the notguilty plea was entered on July 31, 2014, should be attributed to defence delay.

While there were a number of adjournments, theyprimarily related to disclosure and they were consented to by the Crown. Some of this time was attributable to a blank disc provided bythe Crown that needed to be replaced with a new one. I find there was no defence delay during this period of time. [94] Further, the Crown argues that the trial was unnecessarily lengthy due to the large number of objections made by defencecounsel. The trial was characterized by numerous objections throughout.

However, this falls at the feet of both counsel and does notconstitute defence delay. [95] The Crown also argues that the delay caused by the second adjournment of the trial should be attributed to the accused. I findmerit in this argument. On March 24, 2015, defence counsel requested and received an adjournment of the trial to more fully investigatethe issue of whether real time video existed. At that time, he already had a transcript of the evidence of Corporal Gardipee, which wasthe stated basis of his belief that the RCMP may have had real time video that had been destroyed.

On March 24, 2015 he had also beenadvised by the Crown that the RCMP had disclosed the only video it had, which was stop time video. In July, 2015, Crown counselconfirmed that the video system at the Saskatoon RCMP detachment recorded at two frames per second and not in “real time” and thatthere was no real time video on the hard drive. While it is true that defence counsel received additional information on August 25, 2015in the form of a memorandum from Mr.

Denis of the RCMP, including the name of the recording system, the advice contained in thatmemorandum was essentially the same as had been provided to defence counsel in March and in July: that video is not recorded in realtime but is recorded at the rate of two frames per second. [96] In short, defence counsel had ample time in the five months between March 24, 2015 and September 2, 2015 to determinewhether to proceed with a s. 7 Charter application alleging destruction of real time video. He had what he thought was conflicting

information from two sources as early as March, and since he did not accept the information provided by the Crown, the only way for that to be resolved was to call Corporal Gardipee as a witness at trial. That could have occurred on September 2, 2015. [ 97 ] The Supreme Court noted in Jordan that the defence must be allowed preparation time, and that defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. Here, defence counsel had ample time to prepare.

While he was entitled to ask for a second adjournment, the delay associated with the second adjournment of the trial on September 2, lays at the feet of the defence. The Crown was ready to proceed on that date. I find that the period of 3.5 months between September 2, 2015 and December 16, 2015, is due to defence caused delay in that the conduct of the defence in asking for a further adjournment of the trial on September 2, 2015, was not action legitimately taken to respond to the charges. [ 98 ] Accordingly, I find that there is a total of a 11.5 months of delay attributable to defence conduct.

This is deducted from the total delay. After deducting the 11.5 month period of defence delay from total delay, the net delay is 20.5 months. As such, the delay is presumed to be unreasonable unless exceptional circumstances exist. Exceptional circumstances [ 99 ] The presumption of unreasonable delay may be rebutted where the Crown shows that the delay is reasonable because of the presence of exceptional circumstances.

Exceptional circumstances are those that lie outside the Crown’s control in the sense that 1) they are reasonably unforseen or reasonably unavoidable; and 2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. Generally, exceptional circumstances fall under two categories: discrete events and particularly complex cases: Jordan at paras 69 and 71 . [ 100 ] Based on examples provided by the Supreme Court in Jordan of what might constitute a complex case, this

summary conviction matter does not fall into such a category. It therefore remains to be determined whether discrete events exist in this case which amount to exceptional circumstances. [ 101 ] Trials are unpredictable. In Jordan , the Supreme Court noted that where a trial goes longer than reasonably expected, the ensuing delay may amount to an exceptional circumstance. The Supreme Court stated as follows: [73] Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines.

Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case.

In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance. [74] Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling.

Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances. [ 102 ] I find exceptional circumstances are present here. There were unforeseeable developments at trial, resulting in unavoidable delay. [ 103 ] The trial was scheduled for a day and a half.

At the outset, there was an unexpected application by the Federal Crown to quash a subpoena, and following my ruling on that, an ensuing application by the Crown to disallow Charter notices. Argument in relation to these matters took up a significant portion of the allotted trial time. I find this was an unforeseeable development that resulted in delay. [ 104 ] The trial took longer than expected. The Crown called 5 witnesses, and the defence called one witness at trial. Mid-way

through the trial, this delay application arose. The trial time estimate could not account for the added time required to deal with the delay application. The delay application was filed on August 8, shortly in advance of the trial continuation dates of August 24 and 25, 2016. The accused was cross-examined on his affidavit, but a further continuation date had to be set in September for counsel to make argument on the delay application. As well, additional time was required for me to render my decision on the delay application.

In total, the trial and the delay application took 5.5 days to complete, rather than the scheduled and anticipated 1.5 days of trial time. [ 105 ] As outlined in Jordan , it is significant to the consideration of whether exceptional circumstances exist that this trial was scheduled to conclude below the ceiling.

Had the trial concluded as scheduled in December, 2015, the net period of delay would have been approximately 9.5 months (21 months less 11.5 months of delay attributable to the defence). [ 106 ] Having found that exceptional circumstances exist, it is necessary to consider whether all or part of the resulting delay should be subtracted from the net delay. In Jordan , the Supreme Court stated as follows: [75] 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 (see R v Vassell , 2016 SCC 26 ).

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). [ 107 ] As Jordan makes clear, it may not be appropriate to subtract the entire period of delay where the Crown and the justice system could reasonably have mitigated a portion of the delay. [ 108 ] I find that the delay between December 17, 2015, when the trial did not conclude as anticipated, and the continuation date of February 26, 2016, was delay due to unavoidable developments at trial necessitating an adjournment.

Further, I find that this delay could not reasonably have been mitigated. There was no evidence that earlier continuation dates were available. I am mindful that this time period is slightly over two months, but it also includes the holiday season. Therefore, a period of two months will be deducted in respect of exceptional circumstances. [ 109 ] The trial in this matter took longer than expected, but a further deduction for delay on the basis of exceptional circumstances is not warranted.

When the trial did not conclude in December, it would have been reasonable for the Crown to re-assess whether one day was a realistic trial time estimate, given the number of witnesses the Crown intended to call, and the time required for argument by counsel. Had two trial days been scheduled at that point, the trial would likely have concluded, and no delay application would have been filed. [ 110 ] In all of the circumstances, I find it appropriate to deduct a period of two months delay in respect of exceptional circumstances. Therefore, the remaining delay is 18.5 months. This exceeds the presumptive ceiling.

Transitional circumstances [ 111 ] In Jordan , the Supreme Court recognized that the new delay framework needs to be applied contextually and flexibly for cases currently in the system, such as this one. Specifically, the Supreme Court noted that it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice. A contextual application of the framework is also intended to ensure that the post- Askov situation is not repeated.

In essence, while the presumptive ceiling still applies to cases already in the system, those cases must be evaluated in their proper context. The Supreme Court stated as follows: [96] First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed.

This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often

played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account. [97] Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems.

Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel’s behaviour is constrained by systemic delay issues. Parliament, the legislatures, and Crown counsel need time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov .

This transitional exceptional circumstance recognizes that change takes time, and institutional delay — even if it is significant — will not automatically result in a stay of proceedings. [98] On the other hand, the s. 11(

b) rights of all accused persons cannot be held in abeyance while the system works to respond to this new framework.

Section 11(

b) breaches will still be found and stays of proceedings will still be entered for cases currently in the system. For example, if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual.

We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case. [ 112 ] I am satisfied that the time this case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This is not a case where delay vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown.

As well, institutional delay, which does not automatically result in a stay of proceedings, accounts for a portion of the total delay in this case, and in particular, for the period between April 8 and August 24, 2016. [ 113 ] While prejudice is inferred from the period of the delay, part of the contextual assessment for transitional cases can involve an examination of prejudice, and also the seriousness of the offence. Drinking and driving offences are clearly serious offences. On the matter of actual prejudice, the accused filed an affidavit indicating he suffered significant prejudice.

However, the Court has reason to doubt his evidence. On cross-examination, it was revealed that much of what he claimed was not true. In particular, he did not lose his job with SaskPower because of the charges, or move back in with his parents because of the charges. He chose not to take certain jobs offered to him. His relationship with his girlfriend broke up following the charges, but only for a period of six months - and they have been together again since October, 2014. I do accept that he has felt stress, embarrassment and humiliation.

However, this can arise from the charges themselves, not simply the delay. He testified that he has seen a psychologist recently. No diagnosis was provided, nor any documentation. While this may be some evidence of actual prejudice, I have reservations about whether I can accept his evidence, in light of the inaccuracies and exaggeration in his affidavit. This was not a high profile case. The accused was not subject to restrictive bail conditions. He has his licence.

In these circumstances I find no significant prejudice to the accused. [ 114 ] Finally, the culture of complacency toward delay played a role in the amount of time taken for the matter to be concluded. Defence counsel did not seek the earliest possible trial date. Neither counsel raised any concern regarding delay when the trial did not conclude in December, 2015. It was not until April 8, 2016, in response to a question from the Court, that defence counsel indicated delay was starting to come into play in his mind. Expedited dates for the continuation of the trial prior to August were not requested.

It was only after the release of the decision in Jordan that defence counsel filed a s. 11(

b) application in August, 2016.

By that time, there was no opportunity for the parties or the Court to respond to the Jordan decision, to correct behaviour towards delay, or for the system to adapt. [ 115 ] Looking at this case contextually, and with a bird’s eye view, I note that this trial was scheduled to conclude below the ceiling; approximately one third of the total delay is attributable to the defence; delay was not raised in any formal sense until after the decision in Jordan , and the trial was largely completed by the time Jordan was released. [ 116 ] In all of the circumstances, given that the delay of 18.5 months is close to the presumptive ceiling, and given the presence of transitional exceptional circumstances, I find there has been no unreasonable delay and that the accused’s Charter right under s. 11(

b) has not been violated. The delay application is dismissed. Conclusion

[ 117 ] In conclusion, Mr. Edwards is found guilty on both counts, and the delay application is dismissed. I enter a conditional stay on Count #1, the charge of impaired driving, to become final upon expiration of all appeal periods. ____________________ V.L. Monar Enweani, J [1] Transcript p 105 [2] Transcript p 259 [3] Transcript p 281 [4] Transcript p 284 [5] Transcript p 209 [6] Transcript p 180 [7] Transcript p 180 [8] Transcript p 180 [9] Transcript p 181 [10] Transcript p 318. [11] Transcript p 415