Docket: 1666 Her Majesty the Queen Appellant - v. -, 2010 SKCA 147

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 147 Date: 20101119 Between: Docket: 1666 Her Majesty the Queen Appellant - and - Timothy Mitchel Nome Respondent Coram: Lane, Richards and Ottenbreit JJ.A. Counsel: Lane Wiegers for the Crown Peter Burns for the Respondent Appeal:

From: 2009 SKQB 103 Heard: February 18, 2010 Disposition: Allowed Written Reasons: November 19, 2010 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Richards Ottenbreit J.A. I. Introduction [ 1 ] The Crown appeals the trial judge’s stay of proceedings entered on the charges against Timothy Mitchel Nome (“Nome”). Nome was charged with committing an assault on a Corrections Canada officer using a full can of soup, contrary to s. 267 (

a) of the Criminal Code and wilfully obstructing a Corrections Canada officer in the lawful execution of his duty by refusing to move to another cell location after being requested to do so, contrary to s. 129(

a) of the Code . The trial proceeded by judge and jury. The stay was entered after the close of the Crown’s case. For the reasons hereafter set out, the stay of the charges is set aside and a new trial is ordered. II. Evidence and Trial Proceedings [ 2 ] Nome was an inmate in the maximum security unit of the Saskatchewan Penitentiary. On May 28, 2007, corrections officers were not able to inspect his cell to ensure his wellbeing as they are required to do a number of times each day.

They could not see through his cell window because he had scratched it and they also could not alternatively open his cell door to look in because he had tied it shut. He was, as a result, ordered to move to a different cell but he refused. He was forcefully removed from his cell that day by corrections officers in a procedure called a “cell extraction” during which he threw a can at one of the officers.

The essential facts giving rise to the two charges against Nome are summarized at para. 5 of the trial decision: [5] It is the can that hit Officer Keddie's helmet that gives rise to the assault with a weapon charge. It is Mr. Nome's refusal to comply with Corrections Manager McPherson's order to move and his tying off the door that gives rise to the obstruction charge. [ 3 ] The Crown tendered in evidence a book of photographs taken June 1, 2007 of the area where Nome had been extracted from his cell.

They were marked as exhibit P-1 for identification only because defence counsel objected that continuity of the items in the photographs from the date of the incident to the date the photographs were taken had not been disclosed. The defence was concerned whether or not the Crown could prove that the photographs were the state of the cell area on May 28. [ 4 ] Photographs 14 to 16 of exhibit P-1 were depictions of Nome’s cell taken at different heights showing Nome’s bed, desk and other articles and picture 18 showed some cans and was taken in Officer Walberg’s office.

Constable Stubel who took the photographs said that he believed Correctional Service of Canada (“CSC”) got rid of the cans thereafter because they were cracked and started to mold. [ 5 ] Officer Fowler (“Fowler”) testified that the difficulties with Nome had started when he had earlier opened Nome’s cell door to check on him and Nome threw wadded paper at him.

He had arranged for a plexiglass barrier to be brought which would protect him from things being thrown the next time the door was opened, but when the barrier arrived, Nome had tied his door shut and it could not be opened. [ 6 ] Photographs 14, 15 and 16 were shown to Fowler who initially assumed they were taken on May 28.

Defence counsel wanted it made clear that Fowler was identifying the cell photographs and contents as of June 1, i.e. the date the photographs were taken but the trial judge indicated that the issue could be sorted out afterwards and marked them for identification P-1 14, 15 and 16 as subexhibits of P-1. They were then given to the jury to review marked as exhibits for identification. Fowler then testified that the photographs accurately depicted how the cell appeared to him on the date of the offence, i.e.

May 28, and that it was “largely how it would have appeared.” During his testimony in chief, Fowler referred to one of the cell photographs and pointed out different types of foodstuffs in the photographs which were typical for inmates to have. He also pointed out other items depicted in the cell photographs.

[ 7 ] Fowler was cross-examined whether he had observed the garbage container in Nome’s cell. When he asked to look at the photographs of the cell, defence counsel reminded him that the photographs were as of June 1 but that he could use them to jog his memory of what was in the cell on May 28. He was not otherwise cross-examined about the contents of Nome’s cell or on the photographs.

At the end of Fowler’s testimony, the cell photographs P-1 14 to 16 were made full exhibits. [ 8 ] Fowler had also taken a video of the May 28 cell extraction which was by consent entered as a full exhibit (P-2) and eventually shown to the jury. Several times the video depicts Nome’s cell and contents in whole or in part depending on the angle at which the video was shot. [ 9 ] Officer McPherson (“McPherson”) testified that some days prior to May 28, officers checking Nome could still see him by shining a flashlight through his cell window.

He testified that its condition on May 28 did not allow a visual inspection of Nome. On cross- examination, McPherson testified that the cell window was removed after the cell extraction but he did not know what happened to it. He was not cross-examined about his observations regarding the extent to which the window had been scratched. McPherson testified that he did not think any evidence was seized on May 28. He was not cross-examined on the cell contents. [ 10 ] The video of the cell extraction was played while Officer Keddie (“Keddie”) was on the witness stand.

Keddie testified that soup cans were thrown toward him by Nome and that a soup can ricocheted off his helmet. He positively identified the can on the video. Keddie could not say what became of the cans. Keddie was also shown exhibits P-1 14 to 16 and testified that they accurately depicted Nome’s cell. [ 11 ] Officer Devin Murphy (“Murphy”) testified that he found soup cans in the admissions and discharge storage room packed in with the rest of Nome’s cell contents. Murphy then testified that Nome’s cell contents were all packed together and his name would be on documents attached to them.

Defence counsel objected that Murphy could not testify further on the issue unless there was going to be evidence of continuity. [ 12 ] After a break, the prosecutor determined that there was no further evidence of continuity of the cans in the photographs and how they had been moved from Nome’s cell to the storage room. She advised the Court that she had asked Officer Lavoie (“Lavoie”) to go to the penitentiary and see if he could find a report that would indicate who cleaned up Nome’s cell.

The trial judge commented that the Crown should disclose to the defence and the Court who took Nome’s possessions out of his cell and put them in a box and in the storage room. The prosecution then abandoned its attempt to introduce the photograph of the soup cans into evidence. The Crown never asked any further questions of Murphy as to how he knew the cell contents with which he was dealing were Nome’s or about the process by which those personal effects would have been packed up and moved to the storage room.

The defence did not ask any questions about these issues either. [ 13 ] The Crown called three more CSC officers after Murphy, one of which was Lavoie. When Lavoie was cross-examined on what happened to the scratched cell door window, he stated that by the time he inquired of its whereabouts some months after the incident, it had been discarded by the maintenance staff at the penitentiary.

Lavoie was not cross-examined on continuity of the cans or cell contents. [ 14 ] The day after Lavoie finished his testimony, on the fourth day of the trial which was a Friday morning, Crown counsel advised the Court that Lavoie had just provided to her a 14-page CSC report (the “report”) which listed Nome’s personal effects which had been removed from his cell on May 29 and which included a reference to four soup cans.

She said that although this would usually necessitate an adjournment of her case to see if she would call the officers who removed the cans, she believed that the defence would object to such an adjournment. She then closed the Crown’s case. [ 15 ] Defence counsel claimed that the report came as a “big surprise” to him and he was concerned that photographs P-1 14 to 16 might not accurately reflect the exact location of the cell contents at the time of the offence.

Defence counsel then made an impromptu application for a finding that Nome’s s. 7 rights had been breached and for a remedy staying proceedings on all the charges because of non-disclosure. Defence counsel then proceeded to argue the application and, near noon that morning, the following exchange took place between the Court and defence counsel: The Court: So we are basically into the Charter application right now, Mr. Burns, that it be - Mr. Burns: Well, yeah, I wanted to think about it but I guess I’ve been thinking on my feet and your - the Court has spurred my thinking on - on this matter.

The Court: That it be - yes, or that a judicial stay be entered based on a lack of disclosure. …

The Court: Okay. This has blindsided both of you in a very quick moment and while you were speaking I was also trying to thinkhow we best give you - each of you the appropriate opportunity to - to address the Court on the question without having the jury sittingthere wondering once again what we’re going. That’s unfair to these people but that happens. And I’ll hear from each of you on how wemaybe could proceed. I’m going to suggest that perhaps we need a couple hours. I’d like to see copies of that material.

I’d like to havephotocopies made for the Court because I need time to look at it and think about it as well and we’ll send the jury away for today to havea couple hours, then we’ll reconvene and you can continue your application as to what - what the remedy ought to be with respect to thislate disclosure and the Crown can respond to it and then hopefully by the end of the day today I can give you the answer and then thejury comes back Monday morning with whatever answer they’ve got.

An adjournment over lunch hour ensued and the Court reconvened at 2 p.m. [16] Defence counsel continued his argument that Nome could not make full answer and defence because of the late disclosurerespecting the removal of Nome’s cell contents and that his case was thereby prejudiced. He also argued that CSC had disposed of thescratched window and that the failure to produce the window or account for it prejudiced the defence. [17] The prejudice to Nome’s right to make full answer and defence enunciated by defence counsel during the Charter application canbe summarized as follows: (

a) there was a live issue as to where things were in the cell and that he might have objected to theadmissibility of P-1 14 to 16 or asked the officers to what extent the photographs represented where things were, (

b) although he did notknow where the disclosure would have taken him, that lack of knowledge in itself was prejudice, (

c) the disclosure might have allowedhim to establish discrepancies in the officers’ testimony of the location of the cell contents thereby affecting the officers’ credibility andthere might have been a chance of the officers giving wildly varying evidence as to what was where in the cell thereby again affectingreliability and credibility, (

d) he was entitled to cross-examine on the issue of contents whether or not it was relevant, and (

e) the cellphotographs (P-1 14 to 16) do not reflect the integrity of the crime scene and they were not admissible at all, given the Crown’sdisclosure at the end of its case. [18] Defence counsel also argued prejudice in that the absence of the cell window prevented him from determining if the window wasbadly scratched, from arguing that the window was not really scratched much at all, and from raising the issue of whether the cellextraction was justified.

He argued generally that the absent window was part of a pattern of irresponsibility on the part of CSC whichincluded not seizing the cans and failing to secure the offence scene. He also characterized the replacement of the cell contents as areconstruction of the crime scene by CSC and argued that CSC had been negligent in their handling of the whole case. [19] Defence counsel made it clear that although he was not imputing bad faith to the Crown or CSC, the absence of bad faith wasirrelevant. He implied that even if there was simply negligence on the part of CSC, that this was a case where an abuse existed.

Defencecounsel argued that an adjournment would not be a sufficient remedy and a mistrial and a stay was therefore warranted. [20] Defence counsel, after giving his submission about why a stay was the appropriate remedy for abuse, then first raised with the trialjudge the issue of the 14 day notice under The Constitutional Questions Act, R.S.S. 1978, c. C-29 (the “Act”). He clearly articulated thatif a judicial stay is sought under s. 24(1) of the Charter then notice must be given pursuant to s. 8 of the Act.

Crown counsel agreed withthis but stated that she was at a bit of a disadvantage because she had handled only two matters with respect to the Charter previously. She appeared to know that one of the subsections of s. 24 required notice but relied on the logic that if the exclusion of evidence under s.24(2) of the Charter would not require notice, then relief under s. 24(1) would require notice.

The trial judge then questioned what thepractice was in jury trials. [21] At that point, defence counsel suggested to the Court that there was a residual discretion in the Court to stay for abuse of processand cited the case of R. v. Jewitt, (SCC), [1985] 2 S.C.R. 128 in support of this proposition. The following exchangethen took place between defence counsel and the trial judge: Mr.

Burns: - in terms of the way facts are interwoven so - so I would say one way - one way to deal with the remedy to avoid thestay is to consider the common, you know, judicial stay at common law but - The Court: Because you’re saying that if I decide that that’s the remedy or an application to decide what the remedy should berequires a notice to the provincial A.G., a two-week adjournment, knowing that we’re in the midst of a jury trial. Mr. Burns: Yes. The Court: That to avoid that delay for all parties, including the jury, that the question be handled under the residual powers of - Mr. Burns: Yes.

The Court: - of the trial judge, a stay of proceedings on the basis of Jewett.

[22] Nothing further was said about the s. 8 notice by anyone. The Court then observed that it was a Friday afternoon and asked Crowncounsel if she needed a break before she started her submissions and if she was comfortable continuing. Crown counsel responded thatalthough she had just the time over the lunch hour to look at the law, she felt she did not need a break to respond to the defenceapplication. The Crown then proceeded to respond to defence counsel’s argument. Near the end of her submissions, the followingexchange took place: Ms. Longworth: Yeah, well, that’s it exactly. I - I’m afraid I don’t know.

I mean I have to be frank. My experience with Charterapplications is very, very limited and the time within which to sort of garner a response to the issue that arose this morning - The Court: Trust me, I think we’ve covered the waterfront, as has Mr. Burns. III. The Decision to Stay the Charges [23] The trial judge found that Nome had met the requisite threshold to prove prejudice and impairment to make full answer anddefence: [11] Crown submits that defence counsel must demonstrate that there is a reasonable possibility that the undisclosed informationcould have affected the outcome of the trial.

However, the test as articulated by the Supreme Court of Canada in R. v. Dixon, (SCC), [1998] 1 S.C.R. 244 is as follows. Cory J. states at para. 22: The obligation resting upon the Crown to disclose material gives rise to a corresponding constitutional right of the accused to thedisclosure of all material which meets the Stinchcombe threshold.

As Sopinka J. recently wrote for the majority of this Court in R. v.Carosella, (SCC), [1997] 1 S.C.R. 80, at p. 106: The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer anddefence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. Breach of that obligation is a breach of theaccused's constitutional rights without the requirement of an additional showing of prejudice.

Thus, where an accused demonstrates a reasonable possibility that the undisclosed information could have been used in meeting the casefor the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence, he has alsoestablished the impairment of his Charter right to disclosure. [Emphasis included] [12] I find Mr. Nome has met the requisite threshold to prove prejudice in his case. I am satisfied that defence counsel has sufficientlydemonstrated Mr.

Nome's impairment to make full answer and defence. [24] The trial judge determined that the Crown had an obligation to provide timely disclosure of the report provided by Lavoie. Shedetermined that P-1 14 to 16 were placed before the Court and the jury on a false premise.

She observed that once Fowler identified theJune 1 photographs as depicting Nome’s cell at the time of the alleged offence on May 28, they became full exhibits with the result thatthe jury saw the photographs and other witnesses then referred to them in testimony. [25] The trial judge granted the defence two remedies; initially a mistrial for the failure to disclose and then a stay for abuse of process. [26] With respect to the failure to disclose, she concluded the following: [23] Therefore, one can only conclude that the staff of CSC removed Mr.

Nome's personal belongings from his cell on May 29, 2007and then returned them sometime prior to Cst. Stubel overseeing the photographs being taken on June 1, 2007. CSC, the complainant,and the investigating body in this case, disassembled the crime scene and then reconstructed it to use as evidence in this trial. [24] This evidence is so tainted that it ought never have been put before the jury. The only remedy in these circumstances is for thecourt to declare a mistrial, and I do so.

With respect to the stay she stated: [25] Defence counsel submits that the court ought to order a stay of proceedings on these charges against Mr. Nome. The combinationof lack of disclosure, destruction of real evidence and tampering with evidence, even if it was simply negligent on the part of CSC, meetsthe test articulated in R. v. Jewitt, (SCC), [1985] 2 S.C.R. 128.

That is, this is a clear case where an abuse of processexists and the court ought to exercise its discretion to control it. [27] She determined that the stay could be imposed both under the Charter and the common law doctrine of abuse of process: [28] The remedy in this case need not merely be analyzed within the context of

section 7 of the Canadian Charter of Rights andFreedoms. As stated by L'Heureux-Dubé J. at para. 71 of R. v. O'Connor (SCC), [1995] 4 S.C.R. 411, "The principles offundamental justice both reflect and accommodate the nature of the common law doctrine of abuse of process."

[28] Citing the dicta of L’Heureux-Dubé J. in R. v. Conway, (SCC), [1989] 1 S.C.R. 1659 at p. 1667 that the doctrine ofabuse of process, and the unfair or oppressive treatment of an accused disentitles the Crown to carry on with the prosecution of thecharge, she concluded as follows: [30] This indictment against Mr. Nome is just such a case. I reiterate that Crown counsel was as unaware of the full extent of CSC'sconduct in investigating and assisting in the prosecution of these charges as was defence and the court.

Nonetheless, for the reasons Ihave stated, the actions of CSC has tainted this prosecution to such a degree that to proceed would tarnish the integrity of this court. The trial judge made no mention of any notice requirements or abridgment or waiver thereof in her reasons. IV. Jurisdiction and Standard of Review [29] The standard of review in respect of an appeal from an order staying proceedings under s. 24(1) of the Charter was summarized bythe Supreme Court of Canada in R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651: [15] The trial judge's choice of remedy under s. 24(1) of the Charter is discretionary.

However, the trial judge must exercise thatdiscretion judicially. An appellate court will intervene where the trial judge has misdirected him or herself or where the trial judge'sdecision is so clearly wrong as to amount to an injustice. V.

Analysis [30] The Crown argues a number of issues before us including that the Court exceeded its jurisdiction by ordering the stay because thetrial judge’s findings that the accused could not make full answer and defence and tampering with the evidence by CSC were notsupported by the evidence, that s. 8 of the Act was not complied with, that the Crown did not violate its duty to disclose the CSC reportbecause the report was in the control of a third party, and lastly, that there was not a s. 7 Charter breach and, even if there was, the stayimposed was not appropriate because this was not “the clearest of cases.” [31] In our view, the trial judge’s failure to properly deal with the mandatory notice provisions under s. 8 of the Act is determinative ofthis appeal. [32] Common law abuse of judicial process in the criminal sphere when the Charter applies is now subsumed into the principles of theCharter.

In R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, LeBel J. said: [49] In the Charter era, the seminal discussion of abuse of process is found in R. v. O'Connor, (SCC), [1995] 4S.C.R. 411.

The doctrine of abuse of process had been traditionally concerned with protecting society's interest in a fair process.However, in O'Connor, L'Heureux-Dubé J., writing for a unanimous Court on this issue (Lamer C.J. and Sopinka and Major JJ.dissenting on the application of law to the facts), subsumed the common law doctrine abuse of process into the principles of the Charterin the following terms, at para. 63: [I]t seems to me that conducting a prosecution in a manner that contravenes the community's basic sense of decency and fair play andthereby calls into question the integrity of the system is also an affront of constitutional magnitude to the rights of the individual accused. [50] … L'Heureux-Dubé J. thus held that now, when the courts are asked to consider whether the judicial process has been abused, theanalysis under the common law and the Charter will dovetail (see O'Connor, at para. 71).

In this manner, while it acknowledged that thefocus of the Charter had traditionally been the protection of individual right, the O'Connor decision reflected and accommodated theearlier concepts of abuse of process, described at common law as proceedings "unfair to the point that they are contrary to the interest ofjustice" (R. v. Power, (SCC), [1994] 1 S.C.R. 601, at p. 616), and as "oppressive treatment" (R. v. Conway, (SCC), [1989] 1 S.C.R. 1659, at p. 1667).

In an earlier judgment, McLachlin J. (as she then was) expressed it this way: ... abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamentalprinciples of justice underlying the community's sense of fair play and decency. The concepts of oppressiveness and vexatiousnessunderline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process andthe proper administration of justice. I add that I would read these criteria cumulatively. (R. v.

Scott, (SCC), [1990] 3 S.C.R. 979, at p. 1007) [51] Under the Charter, the violation of specific fair trial rights may also constitute an abuse of process, as will a breach of the moregeneral right to fundamental justice (see O'Connor, at para. 73). [33] Although s. 7 of the Charter incorporates the abuse of process doctrine, it does not extinguish the common law doctrine, as wasrecognized by L'Heureux-Dubé J. in R. v. O'Connor, (SCC), [1995] 4 S.C.R. 411, at para. 70: [70] ...

I conclude that the only instances in which there may be a need to maintain any type of distinction between the two regimeswill be those instances in which the Charter, for some reason, does not apply yet where the circumstances nevertheless point to an abuseof the court's process. …

[ 34 ] Since O’Connor , if a stay is requested on the basis of abuse arising out of lack of disclosure and prejudice to the right to make full answer and defence, the analysis thereof and the remedy sought dovetails with a s. 24(1) application under the Charter . [ 35 ] Defence counsel articulated at the beginning of his submissions and the Court acknowledged that his request for a stay was based on a s. 7 Charter breach long before the issue of notice and the attempt to use Jewitt to avoid the notice was ever raised by him. As such, that application was caught by s. 8 of the Act . [ 36 ] The notice provisions of s. 8 read as follows: 8(1) In this section: (a) “law” includes: (

i) all or any portion of an Act or a regulation, order, rule, rule of court, form, tariff of costs or fees, proclamation, letter patent, bylaw or resolution enacted in the execution of a power conferred by or pursuant to the authority of

an Act; (ii) all or any portion of

an Act of the Parliament of Canada or an order, regulation, rule, rule of court, form, tariff of costs or fees, letter patent, commission, warrant, bylaw, resolution or other instrument issued, made or established: (

A) in the execution of a power conferred by or pursuant to the authority of

an Act of the Parliament of Canada; or (

B) by or under the authority of the Governor in Council; (b) “remedy” means a remedy provided pursuant to

section 24 of the Canadian Charter of Rights and Freedoms but does not include a remedy of exclusion of evidence or a remedy consequential on exclusion of evidence.

(2) When, in a court of Saskatchewan: (

a) the constitutional validity or constitutional applicability of any law is brought into question; or (

b) an application is made to obtain a remedy; the court shall not adjudge the law to be invalid or inapplicable nor shall it grant the remedy until after notice is served on the Attorney General of Canada and on the Attorney General for Saskatchewan in accordance with this section.

(3) When, in a court of Saskatchewan, the validity or applicability of a proclamation, regulation or Order in Council made or purportedly made in the execution of a power given by

an Act of the Legislature is brought into question on grounds other than those mentioned in subsection (2), the court shall not adjudge the proclamation, regulation or Order in Council to be invalid until after notice is served on the Attorney General for Saskatchewan in accordance with this section.

(4) Subject to subsection (5), a notice mentioned in subsection (2) or (3) is required to be served at least 14 days before the day of argument.

(5) The court may, on an ex parte application made for the purpose, order an abridgement of the time for service of a notice mentioned in subsection (2) or (3). . . .

(7) The Attorney General for Saskatchewan is entitled as of right to appear and be heard either in person or through counsel in any action, cause, matter or proceeding to which subsection (2) or (3) applies. The defence request for a stay was clearly an application for a remedy pursuant to s. 8(2)(

b) of the Act and, pursuant to s. 8(4), the notice provisions are germane despite defence counsel’s reframing of the application as one at common law. [ 37 ] The most appropriate response for a trial judge faced with a request for a s. 24(1) stay in the absence of Crown waiver or abridgment of time or defacto notice is to adjourn the matter until such time as proper notice has been given (see: Quigley, Procedure in Canadian Criminal Law , 2d ed., looseleaf (Toronto: Carswell, 2005) at 4-30 and Hogg, Constitutional Law of Canada, 5 th ed., vol. 2, looseleaf (Toronto: Carswell, 2007) at 58-7, footnote 22).

This is because a stay is final and the test which must be met to grant that remedy is strict as set out in R. v. O’Connor at para. 82 where Madam Justice L’Heureux-Dubé stated: [82] It must always be remembered that a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.

However, an adjournment of the trial to allow notice may not always be necessary. [38] The mandatory notice can be waived by the Crown. The Supreme Court of Canada in Eaton v. Brant County Board of Education, (SCC), [1997] 1 S.C.R. 241 considered a parallel notice requirement in s. 109 of Ontario’s Courts of Justice Act, R.S.O.1990, c. C.43 in the context of the validity of legislation.

On the issue of whether the Crown could waive the notice requirement, theCourt stated (at para. 54): [54] … there may be cases in which the failure to serve a written notice is not fatal either because the Attorney General consents tothe issue's being dealt with or there has been a de facto notice which is the equivalent of a written notice. [Emphasis added] To avoid an adjournment, the defence can also request an abridgement of the time under s. 8(5) of the Act and the Crown may consent orthe Court may abridge the time on a principled basis without Crown consent. [39] The trial judge may alternatively be able to proceed to decide the issue in the absence of notice if “the equivalent of notice” hasbeen given.

In R. v. Kortje, 2005 SKCA 122, [2006] 3 W.W.R. 460 at para. 15, Gerwing J.A. stated: [15] The appellants and the intervenant rely principally on Eaton v. Brant County Board of Education where Sopinka J. held that s.109 of the Courts of Justice Act, a parallel section, was mandatory and there must be notice or the equivalent of notice. Also severalSaskatchewan decisions in the Court of Queen's Bench and Provincial Court were cited to us. See also the decision of this Court inGladstone Petroleum Ltd. v. Husky Oil (Alberta) Ltd. [40] The notice requirement under s. 8(4) of the Act is therefore mandatory unless (

a) the Crown waives it, (

b) there is a defacto noticeequivalent to a written notice, or (

c) the Court abridges the notice requirements. [41] In Eaton, supra, the Supreme Court of Canada identified two conflicting strands of authority dealing with the legal effect of theabsence of notice: “One strand of decision favours the view that in the absence of notice the decision is ipso facto invalid, while theother strand holds that a decision in the absence of notice is voidable upon a showing of prejudice.” [42] Ultimately, the Court in Eaton found it unnecessary to resolve this conflict, holding that the absence of notice in that caseprejudiced the Attorney-General and that the decision of the constitutional issue by the Ontario Court of Appeal was therefore invalidunder either strand.

The Court, without deciding the issue, did, however, suggest that it preferred the ipso facto invalid approach (atpara. 53): [53] … I am inclined to agree with the opinion of the New Brunswick Court of Appeal in D.N. v. New Brunswick (Minister of Health& Community Services), supra, and Arbour J.A. dissenting in Mandelbaum, supra, that the provision is mandatory and failure to give thenotice invalidates a decision made in its absence without a showing of prejudice.

It seems to me that the absence of notice is in itselfprejudicial to the public interest. … [Emphasis added] [43] In Saskatchewan, this Court has, at different times, adopted both the “ipso facto invalid” approach and the “prejudice to theCrown” approach. [44] In R. v. Beare and R. v. Higgins, both (SK CA), [1987] 4 W.W.R. 309 (Sask. C.A.), Bayda C.J.C. adopted the“prejudice to the Crown” approach, stating at p. 332: One procedural issue, however, does need clearing up. In the Higgins case, the appellant served a notice on the Attorney-General ofCanada pursuant to The Constitutional Questions Act, R.S.S. 1978, c.

C-29. In the Beare case, the appellant did not serve such a notice.In the Higgins case, the appellant relied on an alleged impingement of the rights guaranteed to the defendant under ss. 8 and 11(

d) of theCharter. In the Beare case, the appellant relied upon the rights guaranteed to him under ss. 7, 8, 9, 10, 11(

c) and 11(

d) of the Charter.Has the Attorney-General of Canada been prejudiced by the failure of the appellant to serve a notice in the Beare case? He, of course,was given an opportunity to present an argument in the Higgins case and had he done so, that argument would have applied to the Bearecase as well. Given the circumstances of these two cases, I find that the Attorney-General of Canada has not been prejudiced by the failure to file a notice under The Constitutional Questions Act in the Beare case. [Emphasis added][1] [45] In R. v.

Kortje, supra, Gerwing J.A. took the “ipso facto invalid” approach at paras. 16 to 18 as follows: [16] We are of the view that this submission is correct. The chamber judge in Kortje, insofar as she relied upon s. 7 of the Charter

and a breach thereof to quash the warrants, was in error. [17] In reaching this conclusion it should of course be clear that we as well cannot deal with the substantive issue of the potential or actual application of s. 7 of the Charter . [18] Since the legal bases on which the decisions were arrived at are incorrect, both judgments must be set aside and the warrants are valid and in force. [ 46 ] In this case, the trial judge and both defence and Crown counsel proceeded on the misapprehension that if the application for a stay could be described as a common law application and not merely a s. 24(1) Charter remedy for a s. 7 breach, then s. 8 of the Act and the mandatory notice requirements were inapplicable.

Although it appears that the motivation to proceed immediately was to avoid inconveniencing the jury, the reclassification of the application as one at common law was clearly designed to circumvent and avoid the requirements of the Act . Nome made exactly the same arguments and asked for exactly the same remedy as would have been the case in the Charter application.

However, the true character of the application as one under the Charter remained the same. [ 47 ] The purpose of the notice provisions are to ensure that everyone involved is clear about the factual and legal bases of the application and to allow the Crown to muster its resources, consider its position and make the appropriate submissions to the Court. The Court correctly observed that everyone was blindsided by the non-disclosure issue. The trial judge, prior to the lunch break, suggested a tentative timeline for dealing with and concluding the application that day.

Crown counsel, in the afternoon, twice voiced the issue of time constraint. Moreover, the application by the defence for a stay grew from an application based on non-disclosure on Friday morning to include abuse of process on Friday afternoon. Proper notice of a stay avoids any element of surprise about what the grounds for the stay are and directs the energies of the Crown, defence and the Court toward the appropriate inquiries.

It is clear that Crown counsel was inexperienced in Charter matters and the Court might have benefited from more research and thought about the issues than the Crown was able to muster over lunch on a Friday afternoon. Likewise, the Court was not presented with any of the recent jurisprudence with respect to the stay as a remedy by either counsel. [ 48 ] Because the stay is a final remedy and granted in only the clearest of cases, it deserves to be addressed fully by both the Crown and defence after reflection on the issues, and the Court should have the benefit of that reflection.

This did not happen in this case where time constraints and shifting grounds for the stay were apparent. [ 49 ] In our view, there was, in this case, no clear consent or waiver by the Crown notwithstanding Crown counsel’s willingness to proceed. Everyone, including the trial judge, proceeded on a misapprehension of the law that notice was not necessary if the application was characterized as one based on common law abuse. The issue of whether an adjournment was needed or could be avoided was never properly addressed.

Likewise, there was nothing in the evidence which amounted to defacto notice which is the equivalent of notice. There was no application for abridgment of the time because everyone believed notice was not necessary. In our view, there was clearly prejudice to the Crown in this case where the defence application for a Charter remedy for failure to disclose came up quickly, then developed into an application for a stay on the grounds of abuse and was argued over a relatively short period of time where little proper preparation was possible.

Therefore, whether applying the prejudice approach or the ipso facto invalid approach, the stay must be set aside because of non-compliance with s. 8 of the Act . VI. Conclusion [ 50 ] It was an error for the trial judge in this case to proceed without actual or defacto notice, or a Crown waiver of notice or an abridgement of time. Given this conclusion, as in Kortje , it is not necessary to deal with the other substantive issues raised by the Crown. The appeal of the Crown is allowed. The stay on both counts is set aside. A new trial is ordered.

DATED at the City of Regina, in the Province of Saskatchewan, this 19 th day of November, A.D. 2010. “OTTENBREIT J.A.” OTTENBREIT J.A. I concur “LANE J.A.” LANE J.A.

I concur “RICHARDS J.A.” RICHARDS J.A.