Her Majesty the Queen - v. -, 2015 SKPC 157

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 157 Date: December 1, 2015 Information: 90003228 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - James Anthony Keller Appearing: Jennifer L. Hiatt For the Crown Aaron A. Fox, Q.C. For the Accused JUDGMENT ON CHARTER VOIR DIRE C.C. TOTH , J I. INTRODUCTION [ 1 ] On August 30, 2013, an Information was sworn against the accused James Anthony Keller, alleging that, on or about July 28, 2013, the accused wilfully did an indecent act by exposing his genitals to a cashier in a Home Depot Store, contrary to section 173(1) (

a) of the Criminal Code, RSC 1985, c C-46. The accused’s first court appearance in the matter was on September 26, 2013, at which date the Crown elected to proceed summarily. On October 30, 2013, the accused pled not guilty and the case was subsequently adjourned several times. These delays eventually prompted the defence to apply for a stay of the proceedings due to a violation of the accused’s right to be tried within a reasonable time pursuant to s. 11(

b) of the Canadian Charter of Rights and Freedoms [ Charter ].

[ 2 ] This is one of these unfortunate cases where the proceedings for various reasons got delayed for so long that the prejudice caused to the accused by the delay outweighs the public interest in having the case adjudicated on its merits. Consequently, the defence’s application has to be granted and the proceedings stayed based on s. 11(

b) of the Charter . II. FACTS [ 3 ] The material facts in this case are undisputed. The proceedings against the accused can be summarized as follows: ​ On July 28, 2013, the offence allegedly was committed. ​ On August 30, 2013, the Information was sworn before the Justice of the Peace. ​ On September 26, 2013, the accused had his first appearance in Court.

The matter was adjourned by consent to be spoken to on October 17, 2013. ​ On October 17, 2013, the case was further adjourned by consent to October 30 because the defence had not received full disclosure. ​ On October 30, 2013, the accused entered a plea of not guilty and the matter was adjourned by consent to set the trial date. On November 7, 2013, the trial was scheduled for April 10, 2014. ​ On the trial date of April 10, 2014, Crown counsel informed the accused and the Court that the complainant was out of the country and would be back in three months.

Therefore, the Crown asked for an adjournment which was opposed by the defence. Judge Kalmakoff granted the adjournment and declared it to be pre-emptory on the Crown. ​ On the second trial date of August 27, 2014, Crown counsel informed the Court that one of the material witnesses was not present due to holidays. The Crown originally had subpoenaed the witness, but did not seek a warrant for the absent witness. Ms. Hiatt requested that the Court hear the witnesses who were present and then adjourn the case to hear the last, currently absent one (transcript page 6, lines 5 to 12; page 9, line 6 f.).

The presiding judge granted the request and commenced the hearing. The judge, after some evidence was heard, recognized the accused ’ s wife from a social interaction and did not feel comfortable with continuing the hearing (page 28, lines 16 to 21). The judge stepped down from the case (page 28, lines 16 to 21). I took over and adjourned the matter for written submissions on how to proceed (page 37, line 21 f.). ​ On September 11, 2014, the defence filed a brief of law asking the Court to stay the proceedings due to unreasonable delay based on s. 11(

b) of the Charter .

Crown counsel asked for and received a further adjournment to prepare for the Charter argument. ​ On November 6, 2014, I ruled where a judge steps aside due to a perceived conflict of interest that I was not bound by the previous judge ’ s ruling on August 27, 2014, to grant a further adjournment relying on R v Windebank , 2014 ONSC 5135 and R v Davis , 2012 ONSC 5526 . ​ A stay of proceedings was entered as I would have not granted the Crown ’ s request for adjournment and consequently the matter would have been dismissed as the Crown was not in a position to proceed. ​ I did not rule on the Charter application. ​ The Crown successfully appealed this order.

On June 17, 2015, Justice Gunn ruled that a stay was only available in the clearest of cases and returned the case to Provincial Court to deal with the Charter application. ​ On September 30, 2015, I heard the parties’ argument as to the Charter issue. III. ISSUES [ 4 ] There are two connected issues in this case: 1. Is the accused’s right to be tried within a reasonable time ( s. 11(

b) of the Charter ) infringed? 2. If yes, what is the appropriate remedy?

IV. ANALYSIS 1. Is the Accused’s Right to be Tried within a Reasonable Time Infringed?

a) The Law [5] The law in relation to

section 11(

b) of the Charter was set out by the Supreme Court in R v Morin, (SCC),[1992] 1 SCR 771 (WL) [Morin]. Justice Sopinka, as he then was (La Forest, Stevenson and Iacobucci JJ concurring), commented onthe purpose of

section 11(

b) and laid out the factors to assess whether a matter had been tried within a reasonable time: [21] The primary purpose of s. 11(

b) is the protection of the individual rights of accused. A secondary interest of society as a whole has,however, been recognized by this court. I will address each of these interests and their interaction. [22] The individual rights which the

section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) theright to a fair trial. [23] The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure tocriminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result frompre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings takeplace while evidence is available and fresh. [24] The secondary societal interest is most obvious when it parallels that of the accused.

Society as a whole has an interest in seeingthat the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptlyenjoy the confidence of the public. As observed by Martin J.A. in R. v. Beason (1983), (ON CA), 36 C.R. (3d) 73, 43O.R. (2d) 65, 7 C.C.C. (3d) 20, 1 D.L.R. (4th) 218, 7 C.R.R. 65 (C.A.): "Trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as a whole and, indeed, to the ultimate benefit of the accused, ..." (p. 96[C.R.]).

In some cases, however, the accused has no interest in an early trial and society's interest will not parallel that of the accused. [25] There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway, a majority of thiscourt recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was pickedup in Askov in the reasons of Cory J. who referred to “a collective interest in ensuring that those who transgress the law are brought totrial and dealt with according to the law” (pp. 1219-1220 [S.C.R.]).

As the seriousness of the offence increases so does the societaldemand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought toabsolve persons accused of serious crimes simply to clean up the docket. [26] The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula, but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, "[i]t is axiomatic that somedelay is inevitable. The question is, at what point does the delay become unreasonable?" (p. 1131 [S.C.R.]). While the court has attimes indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows: 1. The length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused. The factors are substantially the same as those discussed by this court in Smith, supra, at p. 1131 [S.C.R.], and in Askov, supra, at pp.

The factors are substantially the same as those discussed by this court in Smith , supra, at p. 1131 [S.C.R.], and in Askov , supra, at pp. 1231-1232 [S.C.R.]. [ … ] [emphasis added].

b) Application (

i) Length of the Delay [ 6 ] According to Morin , at paras 27 and 30 , this factor requires the Court to examine the period from the date on which an Information has been sworn to the end of the trial, not considering the delay caused by an appeal.

If this period seems exceptional, the Court has to inquire into the reasonableness of the delay ( Morin , at para 31 ). [ 7 ] According to the case manager of the Provincial Court in Regina, the next available trial date if set on November 6, 2014 – when I decided to stay the proceedings which decision was la ter overturned by the Court of Queen ’ s Bench – would have been on February 9, 2015. Thus, the length of the trial, starting on August 30, 2013 when the Information was sworn, if finished on February 9, 2015, would have been roughly 18.5 months.

As conceded by the Crown (supplementary brief, p. 10, para 31), this period is certainly sufficient to trigger an inquiry into the reasonableness of the delay, in view of the fact that it was an uncomplicated

summary conviction matter ( see Morin , at para 62 ). (ii) Waiver of Time Periods [ 8 ] If by agreement or other informed conduct the accused has unequivocally waived his or her rights to complain of delay in full or in part then this will either dispose of the matter or allow the period waived to be deducted ( Morin , at para 32 ). [ 9 ] In the case at bar, the Crown concedes in her supplementary brief (p. 10, para 34) that the accused did not waive any time periods. I agree.

In particular, the defence did not consent to the adjour nments on April 10 and August 27, 2014, and repeatedly insisted on having the matter tried as soon as possible due to the preju dice caused to the accused due to further delay (transcript, p. 7 f.). (iii) The Reasons for the Delay (

A) Inherent Time Requirements [ 10 ] All offences have certain inherent time requirements which inevitably lead to delay. The complexity of the trial is an important variable that could justify a longer trial ( Morin , at para 36 ). There are also “ intake requirements ” – such as retention of counsel, bail hearings, police and administration paperwork, disclosure, etc. – which are common to almost all trials and which need more or less time, depending on the individual case.

The fewer of those intake activities are necessary and the simpler the form each activity takes, the shorter the delay should be ( Morin , at para 37 ). [ 11 ] I agree with the defence that, although it involves five witnesses, it is a not compl icated

summary conviction matter with only a few “ intake requirements ” which did not require much time. I further agree with Mr. Fox that the Crown did not provide any explanation why the disclosure package was not ready at the date of the accused ’ s first court appearance on September 26, 2013, which would have allowed him to enter a not guilty plea already at that point. The Crown had almost a month to prepare the disclosure package, starting at the laying of the Information on August 30, 2013, which prima facie seems to be enough time.

Without further explanation for the delayed disclosure I am thus not prepared to count the time between September 26 and November 6, 2013 (the day when the trial date was set) as inherent time requirement and therefore neutral delay. The inherent time requirement in this case is consequently roughly a month (considering that a trial date could have been set shortly after September 26, 2013). (

B) Actions of the Accused

[12] Included in the factor “actions of the accused” are all voluntary actions taken by the defence which may have causeddelay – such as venue motions, adjournments which do not amount to waiver, attacks on search warrants, etc. If the accused chooses totake these actions, which is his or her right, this will be taken into account in determining what length of delay is reasonable (Morin, atpara 39). [13] As already mentioned above, the accused did not take any steps which prolonged the trial and insisted on concluding theproceedings as soon as possible. He is therefore not responsible for any delay in this trial. (

C) Actions of the Crown [14] As with the accused’s conduct, the factor “actions of the Crown” does not serve to assign blame to the Crown for causeddelay. It simply serves as a means whereby actions of the Crown which prolong the trial may be investigated (Morin, at para 41). “Crown delay in excess of the inherent time requirements of the case count against the Crown in the s. 11(

b) reasonableness assessment. Examples of delays that will count against the Crown in the assessment of the reasonableness of the total delay include adjournmentsrequested by the Crown […]”(R v MacDougall, (SCC), [1998] 3 SCR 45 at para 49 (WL)).

However, suchadjournments are only attributable to the prosecution if the adjournment’s root cause was in the Crown’s control (see R v Pidskalny,2013 SKCA 74 at para 34, 417 Sask R 124 [Pidskalny], where the Court held that in assessing whether the delay in a trial is attributableto the Crown, a judge must assess the root cause of an adjournment; see also the holding in R v Tilden, 2009 SKQB 495 at para 15, 345Sask R 273, that a delay caused by a witness’ illness is usually considered a neutral factor because such is not in the control of the Crownor the defence). [15] In this case, as mentioned above, the Crown is responsible for the delay between September 26 and October 30,2013, roughly one month, caused by the fact that the Crown, for no disclosed or apparent reason, was not ready to provide the disclosurepackage to the defence before September 26. [16] Further, the Crown asked for two adjournments which were opposed by the defence: The adjournment requested onApril 10, 2014, because the complainant was out of the country, and the one applied for on August 27, 2014, due to the wilful failure toappear of a key witness.

As far as the first adjournment is concerned, the delay caused by it (April 10 to August 27, 2014, i.e. 4.5months) is not attributable to the Crown, and therefore a neutral one. Crown counsel was advised of the complainant’s absence fromCanada at the trial date only 10 days in advance (transcript, at p. 2, lines 4 to 8). Therefore, there was nothing she could do to secure herattendance or get another trial date close to the one originally scheduled.

The second adjournment, requested for on August 27, 2014,would have been clearly attributable to the Crown if it had been ordered for the reason put forward by the Crown. It is not acceptablethat the Crown fails to seek a warrant for arrest when a key witness goes on holiday, particularly when the trial has already beenadjourned once, and on top of that peremptorily. In such a case the Crown must do everything to secure the witness’ attendance. However, the trial was eventually adjourned not due to the witness’ absence but because the original judge stepped down; a reasonwhich is not attributable to the Crown.

In conclusion, neither the adjournments of April 10, nor the one of August 27, 2014 areattributable to the Crown. [17] Finally, the defence argued, that the delay between September 11, 2014, when the Charter notice was served, andNovember 6, 2014, when it would have been decided if I did not stay the proceedings on other grounds, should be attributed to theCrown. Ms. Hiatt should have expected the Charter issue to come up and therefore been ready to deal with it when the formal noticewas served. I agree.

In view of the peremptory nature of the adjournment granted by Judge Kalmakoff on April 10, 2014, and thedefence’s opposition to that adjournment, the Crown should have been aware that a duly diligent defence lawyer would adamantlyoppose a further delay of the trial, including filing a Charter application. Therefore, Crown counsel should have been prepared to arguethe Charter issue on September 11, 2014, and the roughly two months between that point in time and November 6, 2014, are thuscounted against the Crown. [18] In conclusion, the total amount of delay attributable to the Crown amounts to three months. (

D) Limits on Institutional Resources

[ 19 ] Institutional delay starts to run when the parties are ready for trial but the system cannot accommodate them. To a certain extent, the accused has to live with institutional delays as we do not live in a perfect world but in one in which government resources are limited and cannot cover all judicial needs to perfection ( see Morin , at para 42 ). However, there comes a point at which the Court will no longer tolerate delay on the plea of inadequate resources.

The Supreme Court in Morin , suggested as a guideline a period of acceptable institutional delay in the range of up to eight to 10 months in Provincial Court proceedings (at para 50). [ 20 ] In this case, the parties were, leaving aside some remaining disclosure issues, ready for trial on O ctober 30, 2013, when the defence entered his guilty plea. The period from that point in time until the first trial date on April 10, 2014, i.e. approximately five months, is institutional delay. Further institutional delay occurred when the trial had to be postponed because the judge stepped down.

This delay consists of the period between November 6, 2014, when I could have set the final trial date instead of staying the proceedings, and the potential trial date on February 9, 2015, thus another three months in total. The total of institutional delay consequently amounts to eight months which is in the maximum range of acceptable delay of this kind pursuant to Morin. (

E) Conclusion [ 21 ] The accused’s trial was delayed due to actions of the Crown for three months. In addition, he faces an institutional delay of 8 months that is at the higher end of the acceptable spectrum d efined by the Supreme Court. The majority in Morin , cautioned that the issued guideline for institutional delay is not intended to be applied in a purely mechanical fashion (at para 46) and that the guideline ’ s application will also be influenced by the presence or absence of prejudice (at paras 48 and 59). Therefore, prejudice to the accused due to trial delay is a crucial factor in a s. 11 (

b) analysis, particularly when institutional delay is within the maximum range of the spectrum set by the Morin guide line as in this case. (iv) Prejudice to the Accused [ 22 ] Prejudice to the accused can be inferred from the fact of a prolonged trial alone; the longer the delay the more likely that such an inference will be drawn. In addition, it is open to the a ccused to prove concrete prejudice he or she suffered by trial delay.

For example, prejudice to security interests can be shown by evidence of ongoing stress or damage to the reputation resulting from overlong exposure to the vexations and vicissitudes of a pending criminal accusation ( Morin , at paras 56 and 58 ). [ 23 ] In the case at bar, the kind of offence the accused is charged with makes a speedy trial pa rticularly important and therefore calls for a stringent application of the Morin factors, particularly the guideline in respect to institutional delay.

The need for a timely decision in the matter was recognized by Judge Kalmakoff on April 10, 2014, when he decided to grant only one adjournment to the Crown. It is self-evident that for an established, employed man in the upper middle class like the accused a charge of indecent exposure is a big embarrassment which not only endangers his professional future but also his social status. The accused as well as his wife confirmed in affidavits filed with the Court that he had been severely suffering from stress and anxiety caused by the charge. (

v) Conclusion [ 24 ] The accused suffered a considerable amount of stress and anxiety due to the d elayed trial of an embarrassing charge endangering his professional and social future. The trial delay and prejudice to the accused incurred in this case was unreasonable pursuant to s. 11(

b) of the Charter . The public interest in the adjudication of the case on its merits is clearly outweighed by the detriment caused to the accused by the delayed trial on one hand and society ’ s interest to treat those accused of crimes humanely and fairly on the other. 2. Remedy [ 25 ] According to Pidskalny , at para 50 , referring to Supreme Court case law, a stay of the proceedings is mandatory in cases

where s. 11 (

b) has been breached. V. CONCLUSION [ 26 ] The trial in the matter against James Anthony Keller has been unreasonably delayed and I therefore order that the proceedings be stayed based on s. 11(

b) and 24(1) of the Charter . C.C. Toth, J