2018 SKPC 35, 2018 SKPC 35

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 35 Date: April 27, 2018 Information: 24460211 Location: Buffalo River (Dillon) _____________________________________________________________________________ Her Majesty the Queen - and - Alexandra Desjarlais Appearing: Heather Beyko For the Crown Owen Griffiths For the Accused DECISION ON CHARTER APPLICATION M. MARTINEZ , J INTRODUCTION [ 1 ] Information 24460211 [ 211 ], charges that the accused, Alexandra Desjarlais, committed several criminal driving offences that injured two people.

All of the offences are alleged to have occurred at Dillon, Saskatchewan, on May 23, 2015. [ 2 ] The accused was formally charged on July 28, 2015. Her trial is scheduled for hearing on

July 18, 2018. [ 3 ] On March 16, 2018, the accused brought an application for a stay of proceedings. Her application alleges that, contrary to s. 11(

b) of the Canadian Charter of Rights and Freedoms , she has been denied her right to be tried within a reasonable time. HISTORY OF THE PROCEEDINGS [ 4 ] The following history of the proceedings is taken from the endorsements on the court’s record of proceedings and the transcripts of those proceedings. [ 5 ] The criminal charges in Information 211 arise from a motor vehicle accident on May 23, 2015. The accused is alleged to have been the person operating the motor vehicle at the time. [ 6 ] Ms. Desjarlais was arrested, and subsequently released from custody, on the day of the accident.

She was given a Promise to Appear in Provincial Court at Dillon, Saskatchewan, on August 5, 2015. The Promise to Appear listed two criminal drinking and driving offences, an assault with a weapon, and one count alleging dangerous operation of a motor vehicle causing bodily harm. [ 7 ] It was not until July 28, 2015, that an Information was sworn. [ 8 ] The first Information was Information 24460147 [ 147 ]. It contained eight counts.

The alleged offences included impaired operation of a motor vehicle causing bodily harm to two individuals, dangerous driving causing bodily harm to the same individuals, aggravated assault involving the same persons, and failing to remain at the scene of the accident to offer assistance to the individuals she had injured. [ 9 ] The Honourable Judge Bird did not read Ms. Desjarlais’ charges to her when she first appeared in court on August 5, 2015.

The accused asked for, and was granted, an adjournment so that she could apply for a Legal Aid Saskatchewan lawyer. [ 10 ] On the adjourned date, September 16, 2015, the accused appeared in court without legal counsel. On the same day, the Crown withdrew Information 147, replacing it with Information 211. Information 211 is an 11 count Information. It included essentially the same offences as were alleged in Information 147 but charged separate counts in respect to each person Ms. Desjarlais is alleged to have injured. Once again, Judge Bird did not read the charges to the accused. He granted Ms.

Desjarlais a second adjournment in order for her to hire a lawyer. [ 11 ] On the next date, October 21, 2015, the accused still had not contacted the Meadow Lake Legal Aid office and her charges were adjourned for another month. Ms. Desjarlais did not appear in court on the adjourned date and Judge Bird ordered a warrant for her arrest. [ 12 ] The next date on which the accused was supposed to appear before the court was February 3, 2016. That day her grandmother appeared on her behalf because the accused was ill and could not come to court. The Crown did not request that a warrant be issued for her arrest.

Judge Bird adjourned her charges to March 2, 2016, and ordered her personal

attendance on that date. [ 13 ] On March 1, 2016, a Legal Aid Saskatchewan lawyer from the Meadow Lake Legal Aid office requested disclosure from the Crown in relation to the accused’s charges. [ 14 ] On March 2, 2016, the Legal Aid lawyer went on record for the accused. Her charges were adjourned to April 6, 2016. [ 15 ] The court party did not travel to Dillon on April 6, 2016, because of inclement weather conditions. Ms. Desjarlais’ charges were adjourned to May 4, 2016.

On the latter date, defence counsel requested a further two week adjournment to finalize his client’s instructions. [ 16 ] On May 18, 2016, the accused elected to be tried by a Court of Queen’s Bench judge sitting without a jury and requested a preliminary inquiry. Crown counsel asked that the preliminary inquiry be set into a court date on which no other matter was scheduled for hearing. The court offered September 7, 2016, but the RCMP’s lead investigator was not available during that month. As other matters already were set for hearing on the two days on which the court would travel to Dillon in October, Ms.

Desjarlais’ preliminary inquiry was scheduled for hearing on November 9, 2016. [ 17 ] On November 9, 2016, although one of the individuals Ms. Desjarlais allegedly injured was, as the Crown prosecutor put it, “on the run from police”, the Crown was ready to proceed with the witnesses who were present. Defence counsel requested that the preliminary inquiry be adjourned because he had not had contact with his client since May 2016. Judge Bird granted defence counsel’s adjournment request. [ 18 ] On December 7, 2016, with the Crown’s consent, the accused re-elected to be tried by a Provincial Court judge.

Defence counsel “suggested” that any delay would be “attributable to defence”. [ 19 ] The court offered April 19, 2017, as a possible trial date but the accused was due to give birth on April 20, 2017. For this reason, her trial was set into May 17, 2017. This time, Crown counsel did not ask that no other cases be scheduled for trial on that day. [ 20 ] By written communication dated May 1, 2017, the accused’s new Legal Aid lawyer reminded Crown counsel that the defence had not received some of the disclosure it had requested in March 2016. [ 21 ] The accused’s trial did not proceed on May 17, 2017.

Crown counsel was aware that Judge Bird was due to retire from his judicial duties in a few weeks. The prosecutor was concerned that the trial might not finish that day and did not want to risk the soon-to-retired judge being seized with an unfinished trial. He requested an adjournment of Ms. Desjarlais’ trial and chose to proceed with another, presumably shorter, trial that also had been scheduled for hearing on May 17, 2017. [ 22 ] Judge Bird granted the Crown’s adjournment request and scheduled the accused’s next trial for hearing on November 8, 2017.

Defence counsel put on record that the Crown had not fully responded to the defence’s request for disclosure. [ 23 ] On November 8, 2017, the Crown was ready to proceed but the accused was not. The

reason why the defence was not ready to proceed was that the Crown still had not responded to defence counsel’s requests for disclosure of specific Crown evidence. This time, the defence put two applications before the court relating to the Crown’s failure to disclose the evidence or to tell defence counsel what had happened to it. Consequently, the presiding judge adjourned Ms.

Desjarlais’ trial to July 18, 2018, scheduled case management conferences, and put this application before me for hearing on the same day I was scheduled to hear other applications for stays of proceedings arising from unreasonable trial delay. [ 24 ] On March 16, 2018, the day I heard oral submissions on this application, the Crown stayed proceedings on counts 1 and 2 in Information 211. These counts charged that the accused had operated a motor vehicle while her ability to do so was impaired by alcohol and had thereby caused bodily harm to two individuals.

The reason Crown counsel gave for staying these particular charges was that RCMP cell block video requested by defence counsel had not been provided to Crown counsel and had been purged by the RCMP in the normal course of business. Apparently, no one seems to know whether the video was purged before or after defence counsel requested disclosure of it, or whether it was purged before or after Crown counsel requested a copy of it from the Dillon RCMP detachment.

THE ANALYTICAL FRAMEWORK [ 25 ] In R v Jordan, 2016 SCC 27 , [2016] 1 SCR 631 [ Jordan ], the Supreme Court of Canada framed the modern methodology for assessing whether an individual’s trial has been delayed unreasonably.

The Court reiterated the analytical framework in R v Cody 2017 SCC 31 , [2017] 1 SCR 659 [ Cody ]. [ 26 ] The following is a helpful step-by-step guide to the Jordan framework taken from R v Coulter , 2016 ONCA 704 , 340 CCC (3d) 429 : [34] Calculate the total delay , which is the period from the charge to the actual or anticipated end of trial ( Jordan , at para. 47 ). [35] Subtract defence delay from the total delay, which results in the “ Net Delay ” ( Jordan , at para. 66 ). [36] Compare the Net Delay to the presumptive ceiling ( Jordan , at para. 66 ). [37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable.

To rebut the presumption, the Crown must establish the presence of exceptional circumstances ( Jordan , para. 47 ). If it cannot rebut the presumption, a stay will follow ( Jordan , para. 47 ).

In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases ( Jordan , para. 71 ). [38] Subtract delay caused by discrete events from the Net Delay (leaving the “ Remaining Delay ”) for the purpose of determining whether the presumptive ceiling has been reached ( Jordan , para. 75 ). [39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable ( Jordan , at para. 80 ). [40] If the Remaining Delay falls below the presumptive ceiling , the onus is on the defence to show that the delay is unreasonable ( Jordan , para. 48 ). [41] The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “ Transitional Cases ”) ( Jordan , para. 96 ).

[ 27 ] For cases tried in the Provincial Court, the presumptive ceiling is 18 months: Jordan at para 46. ARGUMENT AND ANALYSIS The Total Delay [ 28 ] There was an approximately two month delay between the date on which the RCMP informed Ms. Desjarlais that she would be charged with criminal offences and the date on which she actually was charged. However, it is clear that I must calculate delay from the date she was formally charged: Jordan at para 47 . In Ms. Desjarlais’ case that date is July 28, 2015, the date on which Information 147 was sworn.

As her trial is scheduled to be heard, and concluded, on July 18, 2018, the total delay in this case is 10 days short of 36 months. Defence Delay Argument [ 29 ] The Crown submits that the defence is responsible for two lengthy periods of delay. [ 30 ] The Crown argues that the first period of defence delay begins on August 5, 2015, the date of the accused’s first appearance in court, and extends until May 16, 2016, the date on which she elected to be tried in the Court of Queen’s Bench and requested a preliminary inquiry.

The reasons why the Crown says that the defence is responsible for this approximately 9.5 month period of delay are that the accused did not diligently attempt to secure the services of a Legal Aid lawyer, and that on one occasion she failed to appear in court. [ 31 ] The second period of delay is from November 9, 2016, the date of the aborted preliminary inquiry, until May 17, 2017, Ms. Desjarlais’ first Provincial Court trial date.

The Crown submits that the accused’s lawyer waived this six month period of delay. [ 32 ] For his part, defence counsel argues that the defence is responsible only for approximately 2.5 months of delay.

Specifically, he submits that defence delay is from November 18, 2015, when the accused failed to come to court and a warrant was issued for her arrest, until February 3, 2016, when her grandmother appeared in court on her behalf because she was too sick to come to court. [ 33 ] Defence counsel also argues that any waiver by the defence must be limited to the charges involving the complainant who was present in court on November 9, 2016, but should not include the charges related to the complainant who was “on the run” at the time. Analysis [ 34 ] There are two kinds of defence delay.

The first is any delay waived by the defendant. The second is delay caused solely by the defendant’s conduct. The latter form of delay applies to defence actions designed to slow

proceedings but not to appropriate actions taken to respond to the charges and to move the case along: Jordan at para 65 . [ 35 ] The court’s record reflects that Ms. Desjarlais did not diligently attempt to hire a Legal Aid lawyer. In part, the reason for this may have been that she did not understand the extent of her jeopardy because her charges never were read to her. Be that as it may, it does not appear that the accused took any steps to obtain legal assistance until rather late in the game. [ 36 ] The accused finally had legal representation on March 2, 2016.

Subsequently, her charges were adjourned two or three times, largely because of communication problems between herself and her lawyer. Ms. Desjarlais finally entered her election and plea on May 18, 2016.

The defence should not bear the entire burden of this latter period of delay because some of the delay undoubtedly was due to defence counsel needing time to review the Crown’s disclosure, to advise the accused, and to receive her instructions. [ 37 ] In my opinion, in the circumstances, the reasonable and acceptable period of time needed in order to do what the defence needed to do after March 2, 2016, was no more than 1.5 months. [ 38 ] The accused’s preliminary inquiry was adjourned at defence counsel’s request.

At the next court appearance on December 7, 2016, the Crown consented to the accused re-electing to be tried in the Provincial Court. Her charges were set for trial on May 17, 2017. [ 39 ] According to the transcript of proceedings on December 7, 2017, the accused’s lawyer stated that “any delay, I would suggest is attributable to defence”. Both counsel who argued this application before me agree that this statement amounts to defence waiver of delay.

Their only disagreement is whether the waiver is limited to the charges applicable to the complainant who was actually present in court on November 9, 2016. [ 40 ] Despite the absence of one of the complainants, the Crown was ready to proceed with Ms. Desjarlais preliminary inquiry on all of the charges she faced. When Ms. Desjarlais’ lawyer “suggested” that the delay following the aborted preliminary inquiry was attributable to the defence, he implicitly waived that delay on behalf of his client in respect to all of her charges. Had he qualified his client’s waiver of delay in the manner in which Mr.

Griffiths submits I should interpret it, her waiver would not have amounted to a waiver because waiver must be unequivocal: Jordan at para 61 …Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal… [ 41 ] As such, I find that the accused waived the approximately six month period of delay between January 4, 2017, and the date of her trial in May 2017. [ 42 ] For the above reasons, defence delay is approximately 14 months, consisting of the following periods of delay: • the approximately seven month period between July 28, 2015, the date of the charges, to March 2, 2016, the date on which the accused first appeared in court with a Legal Aid lawyer • one month of the period between March 2, 2016, and May 16, 2016, the date on which the accused entered her election and plea

• the six month period waived by defence counsel. [ 43 ] After deducting defence delay, the net delay is about 22 months. Exceptional Circumstances Argument [ 44 ] Ms. Beyko submits that the accused’s trial did not proceed on May 17, 2017, because of Judge Bird’s approaching retirement which was a discrete event over which the Crown had no control, and as such, exceptional circumstances justify the resulting delay. [ 45 ] Mr.

Griffiths’ counter-argument is that the discrete event on which the Crown relies does not meet the definition of exceptional circumstances as the event was foreseeable and the potential delay was avoidable. [ 46 ] Mr. Griffiths submits that Crown counsel knew, or should have known, that Ms. Desjarlais’ trial would require all of the available trial time on May 17, 2017, and yet allowed another person’s trial to be scheduled for hearing on the same day. He also submits that the lawyers in the Meadow Lake Crown Prosecutions office were aware of Judge Bird’s impending retirement well in advance of Ms.

Desjarlias’ trial. If Crown counsel believed the judge’s retirement might delay the accused’s trial, there were reasonable steps that counsel could have taken, and should have taken, to try to remedy the delay.

Analysis [ 47 ] Exceptional circumstances, whether in the form of a discrete event or a particularly complex case, are circumstances that are outside of the Crown’s control in that they are: 1) reasonably unforeseen or reasonably unavoidable, and 2) Crown counsel cannot reasonably remedy the resulting delay. [ Jordan at para 69] [ 48 ] It is the responsibility of the Crown, and of the court, to take reasonable steps to avoid foreseeable trial delay problems before they arise: It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty.

It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means.

The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay. [ Jordan at para 70 , emphasis in the original] The exceptional circumstances analysis begins with discrete events. Like defence delay, discrete events result in quantitative deductions of particular periods of time. The delay caused by discrete exceptional events or circumstances that are reasonably unforeseeable or

unavoidable is deducted to the extent it could not be reasonably mitigated by the Crown and the justice system ( Jordan , at paras. 73 and 75 ). [ Cody at para 48] [ 49 ] For the following reasons, I find that the delay of the accused’s trial on May 17, 2017, was not caused by a discrete event exceptional circumstance outside of the Crown’s control. [ 50 ] The judges who sit in the Meadow Lake Provincial Court circuit personally manage their trial dockets.

Because of the pressure to reduce the time accused persons must wait for their trials, and, relying on the fact that many cases often fall through at the last minute, we sometimes set more cases into a trial docket than can reasonably be accommodated if all of them were to proceed as scheduled (although perhaps not to the degree that we did in the pre- Jordan era). This fact is well known to local Crown counsel.

For this reason, the possibility that any particular trial day may be over-booked is foreseeable and avoidable. [ 51 ] Crown counsel play a central role in helping the local judges manage their trial dockets. Before setting a case down for trial, judges need the input of Crown and defence counsel about the amount of trial time that the case probably will require.

When trial scheduling is based on reasonable time estimates, a trial that takes longer to be heard than the court and counsel anticipated, will be an exceptional circumstance outside of the Crown’s control: Jordan [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. [ 52 ] Conversely, a trial that does not start, or cannot be finished, because too many cases are scheduled for hearing on the same day cannot be an exceptional circumstance because the possibility of delay is foreseeable and avoidable. [ 53 ] Because the scheduling of trials happens well in advance of the trial date, it should be relatively simple for Crown counsel to keep track of the upcoming trial calendar in all 12 of the locations where the Provincial Court sits in the Meadow Lake circuit.

For this reason, Crown counsel should have a good idea whether a trial date suggested by a docket court judge can, or cannot, accommodate the case being scheduled for trial. [ 54 ] If Crown counsel do not know what other cases may already be scheduled into a future trial date, counsel can ask the presiding judge about the other cases that may already be scheduled for trial that day.

For example, Crown counsel can inquire about the names of the accused in the already scheduled matters, the nature of the charges, the estimated number of witnesses, and any other factors that may inform their decision whether to agree to

schedule a particular case for trial on that day. [ 55 ] The first prosecutor responsible for Ms. Desjarlais’ file knew that her preliminary inquiry would take up all of the 3.5 to 4 hours of available time on the Dillon trial docket on November 9, 2017. For this reason, he asked Judge Bird not to set other cases for hearing on that day. The prosecutor responsible for the file when Judge Bird scheduled the accused’s May

2017 trial did not give the judge a similar warning. As another trial eventually was set into the same day, the prosecutor who scheduled that trial must not have known, and must not have asked, what other cases already were scheduled for hearing that day. Had he or she done so, they would have known that one of the cases likely would be delayed. [ 56 ] Had the Crown not allowed another case to be scheduled for trial on the same day as Ms. Desjarlais’ trial, the Crown would have no choice but to proceed.

However, the Crown’s central argument is that the accused’s trial did not go ahead because Judge Bird was about to retire, there was a chance that Ms. Desjarlais’ trial might not conclude on May 17, 2017, and Judge Bird had made it well known that he did not want to be seized with an unfinished trial before he retired. For this reason, the Crown argues that it was hamstrung by the discrete event of the judge’s impending and unavoidable retirement. [ 57 ] On December 7, 2016, when Judge Bird scheduled Ms.

Desjarlais’ May 17, 2017, trial, Crown counsel could not have foreseen his retirement because he had not made his plans public. However, members of the Meadow Lake legal community were aware of the judge’s plans, weeks before Ms. Desjarlais’ trial. At this point, the discrete event of Judge Bird’s retirement was foreseeable.

Presumably, any trial delay his retirement might cause also was foreseeable, yet Crown counsel did not take any steps to try to mitigate any anticipated delay. [ 58 ] One step the Crown could have taken beforehand would have been to inquire about whether another judge could sit in Dillon court on May 17, 2017, instead of Judge Bird. [ 59 ] Another step Crown counsel could have taken was to proceed with Ms. Desjarlais’ case because it already had been delayed twice and the risk of a stay application loomed on the horizon.

Had the Crown done so, and if it came to pass that the accused’s trial could not be completed in the hours that remained in the Court’s day, Crown counsel could have asked Judge Bird to sit a little longer than usual in order to complete the trial. Judges regularly accommodate such requests when trials are close to being concluded. [ 60 ] Alternatively, Crown counsel could have asked Judge Bird to complete the accused’s trial either on the Court’s next regularly scheduled sitting date in Dillon, or counsel could have asked Judge Bird to

schedule a special sitting for the purpose of finishing Ms. Desjarlais’ trial. [ 61 ] Instead of taking any of the steps I suggest would have been reasonable, and that might have negated further delay of Ms. Desjarlais’ case, Crown counsel asked to adjourn the accused’s trial and chose to proceed with the other case scheduled for trial on May 17, 2017. [ 62 ] For these reasons, although the Crown could not avoid Judge Bird’s retirement, his retirement was foreseeable well before Ms.

Desjarlais’ trial, and there were reasonable steps Crown counsel could have taken to avoid, or remedy, the foreseeable delay of her trial. Consequently, the judge’s retirement is not an exceptional circumstance that justifies the unreasonable delay in this case. CONCLUSION [ 63 ] As there is no exceptional circumstance delay for me to deduct from the net delay in the accused’s case, the remaining delay is approximately 22 months. As the remaining delay exceeds the 18 month presumptive ceiling, I have no choice but to stay these proceedings. __________________________

M. Martinez, J.