Her Majesty the Queen - v. -, 2012 SKPC 53

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 053 Date: March 29, 2012 Information: 24384100 Location: Carnduff _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jamie Scott Burke Appearing: Andrew Davis For the Crown Lori A. Dunford For the Accused JUDGMENT K. BAZIN , J [ 1 ] In this matter the defendant brings the Charter application that the defendant’s right to be tried within a reasonable time as guaranteed under s. 11(

b) of the Canadian Charter of Rights and Freedoms was breached, and following such a finding that pursuant to s. 24 of the Canadian Charter of Rights and Freedoms the remedy would be a judicial stay of proceedings. [ 2 ] The parties filed an agreed statement of facts and the following is a brief outline of events:

(1) Mr. Burke is charged and arrested on June 6, 2010.

(2) The first Court appearance was July 8, 2010.

(3) Retains first counsel June 2010 and counsel requests disclosure and for the most part disclosure is completed October 7, 2010.

(4) The parties agree between October 7, 2010 to January 6, 2011, that this is basically neutral time.

(5) On January 6, 2011, defence requests an adjournment to allow counsel to speak with her client and the matter is adjourned to March3, 2011. (It is of note that the Carnduff circuit point moves from one day per month to one day every two months on November 2010.)

(6) On March 3, 2011, the defendant enters a plea of not guilty and a trial date is set for June 30, 2011. On April 18, 2011, the matter isbrought forward by the defence to be spoken to, but the reason for the matter being brought forward is not proceeded with and the trialdate of June 30, 2011 is reconfirmed.

(7) On June 29, 2011, the matter is brought forward to Estevan Court due to Carnduff having three trials on June 30, 2011, and theCrown indicating that they would likely not have enough time to commence the defendant’s trial, plus the Crown was having difficultyhaving one of its witnesses attend. The matter is rescheduled for trial March 1, 2012. [3] The law governing this area is set by the leading case of R. v. Morin, 1992 S.C.R. 771 (S.C.C.). Morin sets out the firststage which is that the Court is to determine whether a prima facie case of unreasonable delay had been made out.

Upon reviewing theagreed statement of facts, I advised counsel that a prima facie case had been made out and I would hear argument on the merits. InMorin, Sopinka J. speaking for four of the majority, paragraph 32: That if the length of the delay warrants an inquiry according to the reasons for the delay, it appears logical to deal with any allegation ofwaiver before embarking on the more detailed examination of the reasons for delay.

If by agreement or other conduct, the accused haswaived in whole or in part his or her rights to complain of the delay then this will either dispose of the matter or allow the period waivedto be deducted. [4] Sopinka J. went on to state at paragraph 33: ... As I stated in Smith, supra, which is adopted in Askov, supra, consent to a trial date can give rise to an inference of waiver. This willnot be so if consent to a date amounts to a mere acquiescence in the inevitable. [5] In R. v.

Smith, (SCC), [1989] 2 S.C.R. 1120, stated at page 9: Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waives his right tosubsequently allege that an unreasonable delay has occurred. While silence cannot constitute waiver, agreeing to a future date for a trialor a preliminary inquiry would generally be characterized as more than silence. Therefore, absent other factors, waiver of the appellant’ss. 11(

b) rights might be inferred based on the foregoing circumstances. [6] I reviewed the court recordings for all the court dates from January 6, 2011 onward. [7] In the present case the June 30th date is agreed to and nothing much more is said other than the parties agree on that date. There is no discussion by the Court, nor the parties, as to whether any other dates are available. Both parties agree on the date as set. The date comes from the parties, not the Court.

I infer that the parties would have canvassed various court dates and chose June 30th. [8] The moving of the trial from June 30, 2011 to another date is brought on by there being three trials scheduled, thedefendant’s being the third, and indication by the prosecution that there would likely be no time to commence the third trial. The Crownalso advised the Court that they had difficulty with a Crown witness attending. The Crown had brought the matter into the EstevanCourt, of which the Carnduff Court is a circuit court of the Estevan centre, on June 29, 2011. The Crown indicated that they had

contacted defence and discussed the matter and the defence consented to the adjournment. The defence consents to the adjournment because basically there is no alternative, knowing that the trial would not proceed. The Crown then advises the Court “the first of March would be a suitable date”. There is no comment as to this date, or any other comment by the defendant. I infer from what was said on June 29, 2011 that March 1, 2012 is a date reached by agreement between the parties.

Although the defendant is consenting to the adjournment, based on the reality that the trial would not proceed on June 30, 2011, the date being put forward of March 1, 2012, approximately eight months down the road, is not a date that is commented on such that it was the next available date. I infer from what was said on June 29, 2011 that the March 1, 2012 date is a date reached by agreement between the parties.

There is nothing raised by the defence, and I infer as to how the date was relayed to the Court that this is not the next available trial date, but rather a date worked out between the parties. [ 9 ] It is of note that on two occasions, April 18 th and June 29, 2011, the matter was brought forward in the City of Estevan, in the Estevan Court, one application by the Crown, one application by the defence.

As Carnduff is in the Estevan circuit this does not involve transferring of actions to be dealt with by another court, but is simply done by the parties or the Court having the matter brought forward in any of the centres in the Estevan circuit.

Although Carnduff sits every two months, matters are routinely brought forward to the various circuit points to be dealt with, as well as trials have been moved into other circuit points with the consent of the parties and the Court. [ 10 ] In addition the Court has on occasion utilized the Court’s chamber day of every Friday, to accommodate pressing matters, that require an earlier trial date.

Equally the Court is able to set special trial dates, if required, if the Court is notified of such needs. [ 11 ] There is no obligation of the accused to press the case on, as set out in Smith , but if the defence does not raise a concern as to a delay, or object to a particular trial date, the Court can infer that the delay is not a concern to the defendant and infer a waiver. If the defence raises a concern of the delay, the Court has notice of the issue and to a lesser degree the Crown, and the Court can canvass options.

Both the Crown and the defence counsel in this particular matter, practice in the Estevan circuit and are experienced in the circuit and would have known the above options open to the Court and the parties.

As in this particular matter, trial dates were not canvassed with the Court, I find that the parties had agreed on a date suitable to them, irrespective of the next available trial date, or earlier dates available, or options for a sooner trial date. [ 12 ] As such I find the defendant has waived any delay from June 30, 2011 to March 1, 2012. [ 13 ] Once this time period is removed, the time period from when Mr.

Burke is charged and arrested on June 6, 2010 to the first trial date of June 30, 2011, considering the events as set out in the agreed statement of facts, is not out of the ordinary such to find a s. 11 (

b) breach. [ 14 ] Having found that there is no s. 11 (

b) breach that ends the matter. K. Bazin, J