Her Majesty the Queen - v. -, 2014 SKPC 206

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 206 Date: November 27, 2014 Information: 24438624 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Stanley Trevor Storozuk Appearing: John Morrall For the Crown Stanley Storozuk For the Accused DECISION H.M. HARRADENCE , J INTRODUCTION: [ 1 ] This matter has an atypical procedural history. [ 2 ] The RCMP kept the Information in their file rather than delivering it to the Court after it was sworn.

As a result, the accused was not called on the first date that he had been given for his appearance. A classic instance of a loss of jurisdiction over the offence arose.

[ 3 ] The accused was summonsed to appear in Court, again, 13 months after the date of the alleged offence. [ 4 ] The accused entered a not guilty plea and requested a trial date. The accused represented himself throughout the proceedings. When the matter proceeded to trial it was 19.75 months after the swearing of the Information. The accused voiced concern over the delay. In the circumstances, I exercised my discretion and ordered the trial to proceed. [1] I also ordered a notice be prepared and a voir dire be conducted to inquire into the circumstances of the delay. The trial evidence was straightforward.

On the trial the Crown called one witness, and the defence elected to call no evidence. During the voir dire , the accused testified. The Crown called Corporal Puentespina to provide evidence explaining the delay. Given that the purpose of the voir dire was to determine whether the accused’s right to a trial within a reasonable time had been breached, resulting in a loss of jurisdiction, it is appropriate that I rule on the voir dire prior to deciding the trial. PROCEDURAL HISTORY: [ 5 ] Despite its unusual and unfortunate nature, the procedural history of this matter is not complicated.

The evidence at the voir dire and the endorsements of the court satisfy me of the following findings: a. On December 19, 2012, Constable Todd Tyndall of the Royal Canadian Mounted Police (RCMP) stopped a vehicle immediately north of the City of Prince Albert. The vehicle was driven by the accused, Stanley Storozuk. b. As a result of Constable Tyndall’s observations, the accused was arrested and a breath sample was demanded. c. Breath testing was completed at the RCMP Detachment.

The accused was released on December 20, 2012, after signing a Promise to Appear, in which he agreed to appear in Court on January 28, 2013. d. On January 13, 2013, an Information was sworn by Constable Roxanne McLeod, alleging the accused had committed offences contrary to s. 253(1) (

a) and 253(1)(

b) of the Criminal Code . e. The Information was not provided to the Court. Rather, it is likely that an error occurred within the RCMP resulting in the Information being filed in the RCMP file at the detachment. f. The accused attended Court on January 28, 2013, as he had promised to do. His name was not called. He did not make any inquiries of the Court or the RCMP. He agreed with the Crown’s suggestion that he hoped the charge had gone away. The accused indicated that his life continued and he got his licence back. g.

The apparent error came to Corporal Puentespina’s attention on October 22, 2013, as a result of an audit of RCMP files. Corporal Puentespina requested that a summons be drafted and served on the accused. Despite the circumstances, no urgency was given to the task of summoning the accused. His address had not changed from the address contained in the Information sworn January 13, 2013. The summons was served on December 17, 2013. h. The summons required the accused to attend Court on January 21, 2014. The accused attended, entered a not guilty plea, and the Court made an order for disclosure to him.

The trial was scheduled for April 8, 2014. i. On February 24, 2014, the Crown requested an adjournment of the trial, due to witness unavailability. Apparently the accused did not oppose this request and a new trial date of June 3, 2014, was scheduled. j. On June 3, 2014, the Court did not have sufficient time to accommodate this trial. Another trial proceeded and left the court with insufficient time. A new trial date of September 4, 2014 was scheduled.

k. On September 4, 2014, the trial proceeded. At the conclusion of the trial evidence the matter was adjourned to allow for the service ofa notice pursuant to The Constitutional Questions Act. The trial was also adjourned to conduct a voir dire to inquire into whether theaccused’s right to be tried within a reasonable time had been infringed. l. On September 22, 2014, the voir dire was completed. Argument on the voir dire and the trial proper was made. The decision on bothwas adjourned to October 22, 2014 and subsequently to November 27, 2014.

ANALYSIS: [6] The Crown, at the commencement of the trial, indicated their intention not to attempt to prove the charge of drive while over.08. In essence, the trial proceeded on a single count of impaired driving. Having heard the trial evidence, I have no hesitation findingthat it was a straightforward, uncomplicated matter. The guideline for a trial in Provincial Court is to proceed within eight to tenmonths.

Justice Cromwell in R v Godin, 2009 SCC 26; 309 DLR (4th) 149; 245 CCC (3d) 271; 67 CR (6th) 95; 389 NR 1; EYB 2009-159757; JE 2009-1076; [2009] SCJ No 26 (QL); 192 CRR (2d) 184; [2009] ACS No 26; 252 OAC 377 [Godin], reiterates this guidelineat para 5: Before reviewing the facts in more detail, it will be helpful to place them in the context of the guidelines set out in Morin. Thoseguidelines refer to periods of 8 to 10 months for institutional delay in the provincial courts and of 6 to 8 months from committal to trial,for a total guideline period of between 14 and 18 months. [7] In argument, Mr.

Morrall, on behalf of the Crown, fairly recognizes an inquiry into the reasonableness of the delay isjustified. I agree.

The inquiry requires a balancing of the factors as articulated in R v Morin, [1992] 1 SCR 771, (SCC);12 CR (4th) 1; 71 CCC (3d) 1; 134 NR 321; [1992] CarswellOnt 75; AZ-92111050; EYB 1992-67508; JE 92-517; [1992] SCJ No 25(QL); [2011] NJ No 48 (QL); 15 WCB (2d) 276; [1992] ACS No 25; 53 OAC 241; 8 CRR (2d) 193 [Morin], and is recognized byJustice Caldwell in Pidskalny, 2013 SKCA 74; [2013] 8 WWR 1; 299 CCC (3d) 396; 417 Sask R 124, at para 13 [Pidskalny]: [13] The Supreme Court of Canada articulated the legal framework for assessing whether a delay is unreasonable in R. v.

Morin, (SCC), [1992] 1 S.C.R. 771, at pp. 787-88: 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, [ (SCC), [1989] 2S.C.R. 1120], “[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?”(p. 1131). While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long istoo 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. These factors are substantially the same as those discussed by this Court in Smith, supra, at p. 1131, and in Askov, [(SCC), [1990] 2 S.C.R. 1199], at pp. 1231-32. The judicial process referred to as “balancing” requires an examination of the length of the delay and its evaluation in light of the otherfactors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, accountmust be taken of the interests which s. 11(

b) is designed to protect. Leaving aside the question of delay on appeal, the period to bescrutinized is the time elapsed from the date of the charge to the end of the trial. See R. v. Kalanj, (SCC), [1989] 1S.C.R. 1594. The length of this period may be shortened by subtracting periods of delay that have been waived. It must then bedetermined whether this period is unreasonable having regard to the interests s. 11(

b) seeks to protect, the explanation for the delay and

the prejudice to the accused. [8] When I examine the procedural history, I recognize the inherent time requirements are insignificant for a case of this nature. A lack of institutional resources relating to the trial not being able to proceed on June 3, 2014, is a factor. However, the overwhelmingcause of the delay was due to the actions of the Crown. This delay is aggravated by Corporal Puentespina’s failure to assign someurgency to the service of the summons in October 2013. The delay is further aggravated by the Crown’s request for an adjournment ofthe April trial date given the procedural history.

I am satisfied that the Crown is responsible for the entire delay experienced in thiscase. The actions of the accused did not amount to waiver nor did they contribute to the delay. [9] In essence, the 19.75 months of delay to the commencement of this trial must be balanced against the prejudice to theaccused. The Supreme Court has recognized two ways to establish prejudice to the accused, either by inference or by proof of actualprejudice.

In Godin, Justice Cromwell defines the proper approach to prejudice in the following terms: [30] Prejudice in this context is concerned with the three interests of the accused that s. 11(

b) protects: liberty, as regards to pre-trialcustody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies acriminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to leadevidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3. [31] The question of prejudice cannot be considered separately from the length of the delay.

As Sopinka J. wrote in Morin, at p. 801,even in the absence of specific evidence of prejudice, “prejudice may be inferred from the length of the delay. The longer the delay themore likely that such an inference will be drawn.” Here, the delay exceeded the ordinary guidelines by a year or more, even though thecase was straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice. [10] As part of the Crown argument, Mr.

Morrall states that the inaction of the accused, while not sufficient to constitute waiver orhave contributed to the delay, does demonstrate a lack of prejudice to him.

An assessment of this argument must start with the principleas stated by Justice Cory in R v Askov (SCC), [1990] 2 SCR 1199; (SCC); 75 OR (2d) 673; 74 DLR(4th) 355; 59 CCC (3d) 449; 79 CR (3d) 273; 113 NR 241; [1990] CarswellOnt 111; JE 90-1515; [1990] SCJ No 106 (QL); 11 WCB (2d) 224; [1990] ACS No 106; 42 OAC 81; 49 CRR 1, that “it is always the responsibility of the Crown to bring the accused to trial”.[2] In this context, the accused did everything that was legally required of him. He attended Court as he promised to do on January 28,2013, and again when he was summonsed on January 21, 2014.

The accused, at the first opportunity, entered a not guilty plea andrequested a trial date. The accused did not request an adjournment of the trial. [11] As indicated the accused chose to represent himself and chose to testify during the voir dire. It was my conclusion that theaccused was an unsophisticated but honest witness. Mr. Morrall’s cross-examination commences and centres on the accused’s failure tomake inquiries: Q So, Mr.

Storozuk, I understand, between January 28th, 2013 and when they summonsed you again December 17th, 2013, you didn’tgo to the RCMP or the Court to find out what happened to your charges? A No, sir. Q Okay. And I assume at that point you were just hoping that the charges went away; right? A Well, I -- yes, sir. Q Okay. And when you were kind of -- it was unfortunate, I suppose for you, that on December 17th you were surprised when allof a sudden you got your Notice to Appear in Court; is that right? A That’s correct. Q ‘Cause you’d kind of forgotten about it and hoped that it would go away; right?

A I – Q Because it wasn’t affecting you at that point; right? Before December 17th? Like, once you didn’t appear in Court, on January 28th, you were just saying, you know, out of sight -- out of sight, out of mind, you didn’t have to deal with it; is that right? A No, sir, I was dealing with it. Q How were you dealing with it? A With alcohol. Q Okay. But you had hoped that it went away; right? A I had no idea, I – Q Okay. A I’d assumed it would catch up to me sooner or later -- Q All right. A -- and I was getting pressured by -- well, all my family and friends knew I’d been charged. Q Okay.

They knew you’d been charged, okay, and you were frustrated by it. Then why didn’t you do something about it, like, go to the police station to see what happened to it? A I was driving. Q You were driving? So you had your licence back; right? A Yes, sir. Q Okay. So as I said, you were hoping it went away; right? A I guess, yes. [ 12 ] I am not prepared to find on these facts that the accused’s failure to make inquiries of the police or Court is evidence of a lack of prejudice.

[ 13 ] Based on the testimony of the accused, I find that he did suffer actual prejudice as a result of the delay in bringing these matters to trial. The accused was not subject to restrictive bail conditions nor did essential evidence disappear. He did testify that he was subject to stress given the unknown status of these criminal proceedings. The Crown argues that actual prejudice experienced by the accused was minor, and in any event, not sufficient to tip the balance in favor of a finding of unreasonable delay.

In this regard the Crown relies on the decision in R v Pankiw, 2013 CarswellSask 752 ; 2013 SKPC 173 , 110 WCB (2d) 703; 55 MVR (6 th ) 238, 431 Sask R 108, where my learned colleague Judge Labach, at paragraph 82, draws a distinction between prejudice arising from delay and prejudice arising from the charge. The distinction was recognized by Justice Caldwell in Pidskalny . Justice Caldwell recognizes that this distinction is not always easy to determine.

In the circumstances of this case, there is evidence of actual prejudice but it is neither significant nor determinative. [ 14 ] Justice Caldwell in Pidskalny also recognizes the requirement to balance the Morin factors. This balance will, by necessity, be based on the context and individual facts of the case at bar and its procedural history. Justice Caldwell states the following in Pidskalny : [44] Here, on the evidence before her, the judge was satisfied that there had been actual prejudice to Mr. Pidskalny due to the delay and I am not persuaded that I am permitted to interfere with that finding. While Mr.

Pidskalny proffered no actual evidence which indicated that his ability to make full answer and defence had been compromised, the judge inferred some prejudice from the length of the delay in this case. This was a permissible inference and one that was open to the judge to draw in the circumstances of a 33 month delay ( R v Godin ). Nevertheless, despite her findings of actual and inferred prejudice, the judge was also careful to say that Mr. Pidskalny’s conditions of release were not overly onerous and, while he did have some restrictions on his liberty, he had never applied to have those conditions relaxed.

These facts are relevant to the overall analysis of the resulting prejudice and in the balancing of interests. [ 15 ] This balancing was described by Justice Lauwers of the Ontario Court of Appeal in R v Williamson, 2014 ONCA 598 ; [2014] OJ No 3828 (QL), in the following terms: [65] As the Supreme Court said in Morin and Godin, the approach to assessing the reasonableness of delay is not mathematical, but requires balancing of the appellant’s Charter protected interests with society’s interest in prosecution of the offences on the merits.

The difficulty in appeals of cases where no stay was granted by the trial judge is that, while the motion is heard and determined before the trial, when the presumption of innocence applies, the appeal is heard and determined after a fair trial on the merits in which the appellant was found guilty, often by a jury of peers.

Would the judicial imposition of a stay be more publicly disreputable for the administration of justice by letting a plainly guilty person like the appellant go free, than tolerating an inordinate trial delay? [66] The crimes committed by the appellant are serious; indeed, they are especially despicable. Certain factors militate against the appropriateness of a stay. There is no actual prejudice. There are mitigating factors. The appellant was out on bail and was not subject to particularly onerous restrictions. He was being paid his salary.

The digital evidence was preserved and, given that the abuse took place over 30 years ago, an additional eight months did not materially impact the appellant’s ability to cross-examine the complainant. [67] Despite these factors, in my view, the trial judge erred in refusing a stay. While there is no actual prejudice, the inferred prejudice is significant. There is no doubt that 26 months of institutional and Crown delay is significant and exceeds the Morin guidelines by eight months. The excessive delay is explained but not justified. In anticipation of an application under s. 11 (

b) of the Charter , neither the Crown nor the Superior Court took seriously the obligation to bring this relatively straightforward case to trial in a reasonable time.

By contrast, the defence was diligent in attempting to move the matter along, and attended prepared for preliminary hearing dates not once, but twice, only to be turned away because of scheduling errors, even though the Crown was apparently aware of these issues in advance and failed to inform defence counsel. [68] Applying the Supreme Court’s words in Harrison , “ Charter protections must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences,” I conclude, with great reluctance, that the balance weighs in favour of the appellant’s interests in a trial within a reasonable time, over the societal interest in a trial on the merits.

A stay should have been ordered in this case. [ 16 ] In the Williamson case, the accused had been convicted of charges of buggery and gross indecency. The trial judge had sentenced the accused to four years in a penitentiary. The case at bar is, in essence, a single count of impaired driving.

While it is important to recognize the societal interest in having drinking and driving offences determined on the merits as indicated by Justice Gabrielson in R v Sheppard, 2014 SKQB 83 , this is only one factor that needs to be considered in the assessment. [ 17 ] The reality is that this matter could have proceeded to trial in the spring of 2013. It is significant to note that when the accused entered a not guilty plea in January 2014, a trial date was assigned in April 2014.

In Prince Albert Provincial Court, a straightforward trial with one police witness and an unrepresented accused can be set within three months of plea. The delay, in this case, is approximately 22 months from the swearing of the Information to the completion of the trial.

[18] In these circumstances, I am satisfied that while the actual prejudice is slight, there is a significant inference of prejudice.

This inference, following Godin, is inextricably linked to the length of the delay which I have found to be in excess of 12 months fromthe time necessary to try a case of this nature. [19] When I balance the factors, including the length of the delay, together with the cause of the delay, the actual and inferredprejudice present in this case, I conclude that the prejudice to the accused caused by the unreasonable delay outweighs the public interestin having the charges decided on their merits. Accordingly, I find that the accused’s right to be tried within a reasonable time has beenbreached.

THE REMEDY: [20] As recognized by Justice Rosenberg in R v Steele, 2012 ONCA 383; 288 CCC (3d) 255; [2012] OJ No 2545 (QL), the remedyfor a violation of s. 11(

b) should not be conflated with a stay of proceedings at common law: [30] In balancing the factors, the application judge stated that a stay of proceedings is an extraordinary remedy. In R. v.Thomson, 2009 ONCA 771 , 248 C.C.C. (3d) 477, at para. 5, although the trial judge found a lengthy unexplained delay, herefused to stay the proceedings because a stay is a “drastic remedy” that “should be confined to the clearest of cases”. He also stated thatthe court must be satisfied that a fair hearing can no longer be had in light of the delay.

As this court explained at para. 9 of Thomson,that was an erroneous approach because a stay of proceedings is the minimal remedy for a breach of the right to trial within a reasonabletime.

It is not the remedy of last resort reserved for the clearest of cases. [31] The proper test was identified by this court in Thomson, at para. 25, by reference to McLachlin J.’s concurring reasons inMorin at p. 810: “In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in aprompt trial outweighs the interest of society in bringing the accused to trial.” As Arbour J.A. pointed out in R. v. Bennett (1991), (ON CA), 3 O.R. (3d) 193 (C.A.) at 206, at common law and under the Charter, outside the s. 11(

b) context a stay ofproceedings is a discretionary remedy to be granted sparingly. But for a s. 11(

b) violation a stay of proceedings is the minimum remedy.As Lamer J. explained in R. v. Rahey, (SCC), [1987] 1 S.C.R. 588 at 614: “After the passage of an unreasonable periodof time, no trial, not even the fairest possible trial, is permissible.” [21] A s. 11(

b) stay of proceedings was also recognized by Justice Caldwell in Pidskalny as the minimum remedy where anunreasonable delay has been found: [52] The Crown suggests that R. v. Nasogaluak, and the other Charter cases it cites outside the context of s. 11(b), support a generalconclusion that the principle that a stay is the minimum remedy under s. 11(

b) is an outdated anomaly which has been superseded. Idisagree. Given that the “loss of jurisdiction” theory is unique to s. 11(b), any developments in Charter jurisprudence, no matter howsignificant, which do not involve an analysis of s. 11(b), that theory and the existing jurisprudence thereunder, do not give this Court theauthority to overrule well-established Supreme Court of Canada precedent with respect to s. 11(b) – indeed, as this Court has said veryrecently (see: R. v.

Saskatchewan Federation of Labour, 2013 SKCA 43 , and Saskatchewan Federation of Labour v.Government of Saskatchewan, 2013 SKCA 61 ), the principles of stare decisis preclude it from so doing. Therefore, despite R.v. Nasogaluak and other jurisprudential developments which lie outside s. 11(

b) of the Charter, there is still binding Supreme Court ofCanada precedent which holds that a stay of proceedings is the minimum remedy whenever there has been a breach of s. 11(

b) of theCharter. It is for that Court to say if it shall be otherwise in the future. [22] As a result, given the findings I have made, a stay of proceedings will be entered pursuant to s. 24(1) of the Charter in relationto the two charges outstanding against this accused. [23] Dated this 27th day of November, A.D. 2014, at the City of Prince Albert, in the Province of Saskatchewan. _____________________________ H.M. Harradence, J