JORDAN KRUNICK APPLICANT - v. -, 2023 SKKB 165

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 165 Date: 20 23 08 08 Docket: CRM-ES-00033-2017 Judicial Centre: Estevan BETWEEN: JORDAN KRUNICK APPLICANT - and - HIS MAJESTY THE KING RESPONDENT CORRECTED JUDGMENT: The text of the original judgment has been changed per the corrigendum released August 15, 2023. (A copy of the corrigendum is appended to this corrected judgment.) Counsel: Ian D. McKay and Heather D. Ferg for the applicant Scott R. Moffat, K.C. for the Attorney General of Canada REASONS FOR ORAL DECISION ON S. 11(

b) CHARTER APPLICATION MITCHELL J. DATED AUGUST 3, 2023 WRITTEN DECISION August 8, 2023 I. INTRODUCTION [ 1 ] In R v Jordan , 2016 SCC 27 , [2016] 1 SCR 631 [ Jordan ], the Supreme Court of Canada’s seminal decision on the contemporary application of s. 11(

b) of the Canadian Charter of Rights and Freedoms [ Charter ], a majority of the court opined at para. 28: “[T]imely trials further the interests of justice. They ensure that the system functions in a fair and efficient manner; tolerating trials after long delays does not”. [ 2 ] To that end, Jordan designed a new framework to ensure that s. 11(

b) of the Charter fulfils its promise of achieving timely justice for all. The Jordan framework establishes a “ceiling” beyond which delay is presumptively unreasonable and imposes an obligation on all participants in the criminal justice system to adopt a proactive approach which seeks to prevent unnecessary and unjustified delays. See: Jordan at paras 46-50 ; R v Cody , 2017 SCC 31 at paras 35-36 , [2017] 1 SCR 659 [ Cody ], and R v R.S., 2023 BCCA 148 at para 33 [ R.S. ]. For cases tried in the Superior Court, delay is presumptively unreasonable if it exceeds 30 months from the date of charge.

See: Jordan at para 46 . [ 3 ] On March 3, 2017, Jordan Krunick was charged with one count of trafficking in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ], and one count of possession of cocaine contrary to s. 5(2) of the

CDSA . [ 4 ] On March 24, 2023, Mr. Krunick’s application under s. 11(

b) of the Charter was heard. By that time, 2,213 days or 6 years and 22 days had already elapsed. The trial of this matter is ongoing. [ 5 ] The central issue on this application is whether this delay has deprived Mr. Krunick of his right to be tried within a reasonable time as constitutionally guaranteed to him by s. 11(

b) of the Charter . He must demonstrate a breach of this constitutional protection on a balance of probabilities. II. FACTUAL BACKDROP A. Evidence Filed by the Parties [ 6 ] The factual backdrop relevant to Mr. Krunick’s application for a stay of proceedings based upon unreasonable delay is gleaned from endorsements entered onto the court files in both the Provincial Court, and the Court of King’s Bench in Estevan, Saskatchewan.

Additionally, defence counsel filed transcripts of proceedings conducted on the following dates with the court: • November 20, 2017 • May 15, 2019 • February 7, 2020 • December 17, 2020 • March 12, 2020 • March 29, 2020 • June 4, 2021 • June 14, 2021 • June 24, 2021 • September 10, 2021 • September 17, 2021 • December 6, 2021 • March 25, 2022 • September 26, 2022 • December 1, 2022 [ 7 ] In addition to a written brief of law dated March 17, 2023, the Crown also filed the affidavit of Tracy Wolfe sworn November 30, 2022 [Wolfe Affidavit].

To the Wolfe Affidavit were appended among other documents, a number of Public Health Order Provincial Orders issued during the height of the global pandemic by Dr. Saqib Shahab, Chief Medical Officer for Saskatchewan [Dr. Shahab] between December 14, 2020, and March 23, 2021. B. Chart of Relevant Events [ 8 ] The following chart summarizes these relevant events and the time which elapsed: Date Events – 2017 Time Elapsed March 3, 2017 – April 30, 2017 Information charging Mr. Krunick with theses offences laid, and disclosure provided to defence counsel. 59 days. Crown accepts this delay.

May 1, 2017 – May 31, 2017 Further disclosure requested. Crown alleges all substantive disclosure had been provided. Defence states it was not. 31 days. No further disclosure appears to have been made. July 10, 2017 Defence requests a preliminary inquiry which is scheduled for November 20, 2017. 40 days (June 1, 2017 – July 10, 2017) July 11, 2017- November 20, 2017 Defence elected to proceed by indictment and consented to committal for trial. 133 days (July 12, 2017 – November 20, 2017) Date Events – 2018 Time Elapsed March 6, 2018 Legal aid counsel withdrew because Mr. Krunick had found a job.

Defence requested adjournments on March 6, and, again, on April 3 until May 1, 2018. 106 days (November 22, 2017 - March 6, 2018)

May 1, 2018 New defence counsel retained. Pre-trialadjourned to June 12, 2018. Adjournedagain to August 2, 2018, and then toAugust 28, 2018, at the request of defence. 56 days (March 7, 2018 – May1, 2018) August 28, 2018 Defence brings Third party recordsapplication. Hearing scheduled forDecember 14, 2018, and adjourned toJanuary 29, 2019, at the request of defence. 119 days (May 2, 2018 –August 28, 2018).

Of thistime, 43 days (May 2, 2018 –June 12, 2018) not attributableto defence.Date Events – 2019 Time ElapsedJanuary 29, 2019Defence application adjourned to March19, 2019 due to defence counsel’s inabilityto serve one of the third parties to theapplication. 154 days (August 29, 2018-January 29, 2019) March 29, 2019 Third party records application argued andadjourned to May 2, 2019 for decision. 59 days (January 30, 2019 –March 29, 2019)May 2, 2019 Third party records application dismissed.Adjourned to trial date of May 21, 2019. 34 days (March 30, 2019 –May 2, 2019)May 15, 2019 Defence counsel granted leave to withdrawfor ethical reasons, and trial dates vacated.Matter adjourned to June 11 for pre-trial. 13 days (May 3, 2019 – May15, 2019) June 11, 2019 New defence counsel goes on record, andpre-trial adjourned to August 13, 2019 27 days (May 16, 2019 – June11, 2019)August 13, 2019 Defence awaiting further disclosure.

Trialdates were offered for earlier dates butdefence unavailable. Trial date set for May13-15, 2020. Defence waived delay fromJune 11, 2019 to August 13, 2019. 63 days (June 12, 2019 –August 13, 2019) Date Events – 2020 Time ElapsedFebruary 7, 2020Accused re-elects trial by judge alonepursuant to s. 561(7) of the Criminal Code,RSC 1985, c C-46. All defence motions areto be filed on or before April 1, 2020 andare adjourned to May 13, 2020. 178 days (August 14, 2019 –February 7, 2020) May 13, 2020 Trial dates are vacated, and matter isplaced on pre-trial list for June 9, 2020 toreschedule.

On June 9, the motions arerescheduled for September 16-18, 2020. 96 days (February 8, 2020 –May 13, 2020) December 17,2020 Pre-trial management conference call.Defence application scheduled for January6 -7, 2021 in Regina. 218 days (May 14, 2020 –December 17, 2020) Date Events – 2021 Time ElapsedJanuary 6, 2021 Defence application under s. 8 of theCharter is heard in Regina, Saskatchewan.Decision reserved until March 12. 20 days (December 18, 2020 –January 6, 2021) March 12, 2021 Decision rendered on application findingthe information to obtain [ITO] and searchwarrants facially problematic.

Matteradjourned to March 29 to determine nextsteps at the request of the Crown. Crownstated it was not waiving delay. 65 days (January 7, 2021 -March 12, 2021) March 29, 2021 Conference call to set dates for step oneGarofoli [R v Garofoli, (SCC), [1990] 2 SCR 1421 [Garofoli]]process. In camera hearing set for May 28for review of unredacted ITO. Neitherdefence counsel nor accused wouldparticipate.

Defence counsel not preparedto waive delay. 17 days (March 13, 2021-March 29, 2021) May 28, 2021 In camera hearing held to review ITO.Crown counsel will prepare summaries tobe reviewed by the trial judge. 60 days (March 30, 2021 –May 28, 2021) June 4, 2021 Conference call with counsel. Crownsummaries reviewed and to be forwardedto defence counsel. Crown’s application. 7 days (May 29, 2021 – June4, 2021) June 24, 2021 Argument on Step 6 of Garofoli procedure.Adjourned to September 10, 2021 fordecision. 20 days (June 5, 2021 – June24, 2021)

September 10, 2021 Decision on Step 6 of Garofoli . Defence s. 8 Charter application dismissed. Adjourned to September 17, 2021 for case management. 78 days (June 25, 2021 – September 10, 2021) September 17, 2021 Defence advises court that it will bring a mistrial application following decision on s. 8 of the Charter . 7 days (September 11, 2021 – September 17, 2021) November 8, 2021 Defence application for mistrial argued. Adjourned to November 26, 2021 for decision. 52 days (September 18, 2021– November 8, 2021) November 26, 2021 Mistrial application dismissed.

Matter adjourned to December 6, 2021 for case conference. 18 days (November 9, 2021 – November 26, 2021) December 6, 2021 Management conference at which defence states will be arguing s. 8 Charter application. Application date set for February 4, 2022 either in Regina or Estevan. 10 days (November 27, 2021 – December 6, 2021) Date Events – 2022 Time Elapsed February 4, 2022 Defence s. 8 Charter application argued following summaries provided on Step 6 of Garofoli . Adjourned to April 1, 2022 for decision. 60 days (December 7, 2021 – February 4, 2022) March 25, 2022 Case management call convened.

Decision postponed to May 4, 2021 due to health- related issue of trial judge. 49 days (February 5, 2022 – March 25, 2022) May 4, 2022 Defence s. 8 Charter application dismissed. Matter adjourned to May 9 for case management call. 40 days (March 26, 2022 – May 4, 2022) May 9, 2022 Case management call adjourned to May 27. 5 days (May 5, 2022 – May 9. 2022) May 27, 2022 Defence application under s. 8 of the Charter relating to strip search of accused scheduled for July 18, 2022. 18 days (May 10, 2022 – May 27, 2022) July 18, 2022 Crown conceded strip search application and it was found to be unconstitutional.

Defence will file a s. 11(

b) Charter application. Matter adjourned to September 6, 2022 for argument on the s. 11(

b) Charter application. 52 days (May 28, 2022 – July 18, 2022) September 6, 2022 Matter adjourned to September 26, 2022 for case management conference to set new date for hearing of application under s. 11(

b) of the Charter . 50 days (July 19, 2022 – September 6, 2022) September 26, 2022 Case management conference at which time s. 11(

b) Charter application adjourned tentatively for December 6, 2022. 20 days (September 7, 2022 – September 26, 2022) December 1, 2022 Case management conference.

Section 11(

b) Charter application adjourned for hearing to March 24, 2023. This is the first date available to defence. 66 days (September 27, 2022 – December 1, 2022) Date Events - 2023 Time Elapsed March 24, 2023

Section 11(

b) Charter application argued, and adjourned to June 6, 2023 for decision. 113 days (December 2, 2022 – March 24, 2023) June 6, 2023 Decision postponed due to incomplete record. Court directed transcripts of September 26, 2022, and December 1, 2022 case management conferences be prepared and filed. Case management conference call set for July 10, 2023. 87 days (March 25, 2023 – June 6, 2023) July 10, 2023 Case conference to finalize record and set new date for decision on delay application 34 days (June 7, 2023 – July 10, 2023) August 3, 2023 Decision on defence application under s. 11(

b) of the Charter . 28 days (July 10, 2023 – August 3, 2023) Total Time from March 3, 2017 – August 3, 2023 2,345 days or 6 years, 5 months, and 1 day III. ANALYTICAL FRAMEWORK

[ 9 ] An oft-cited

summary of the Jordan analytical framework is found in R v Coulter , 2016 ONCA 704 at paras 34-41 , 340 CCC (3d) 429 [ Coulter ]. This

summary has, for example, been cited with approval and endorsed by our Court of Appeal in R v Boehmer , 2019 SKCA 74 at para 29 , [2020] 3 WWR 509, and R v Lemioer , 2019 SKCA 95 at para 17 , [2020] 4 WWR 471, as well as by appellate courts in other provinces.

See for example: R.S. at para 24 ; R v Mamouni , 2017 ABCA 347 at para 57 , [2018] 2 WWR 537; R v Brar , 2020 MBCA 58 at para 12 , 388 CCC (3d) 342; R v Manasseri , 2016 ONCA 703 at paras 301-323 , 344 CCC (3d) 281 [ Manasseri ]; R v Bulhosen , 2019 ONCA 600 at para 42 , 377 CCC (3d) 309, and R v Hood , 2019 NBCA 58 at para 27 . [ 10 ] The court in Coulter summarized the Jordan analytical framework this way: [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 ). [Emphasis in original] [ 11 ] I propose to follow the Jordan analytical framework as described in Coulter to assess the substantive merits of Mr.

Krunick’s application for a stay of proceedings based on delay. IV. APPLICATION OF ANALYTICAL FRAMEWORK A. Calculation of the Total Delay [ 12 ] The first step is to calculate the total delay from the date of charge to the actual or anticipated conclusion of the trial. See: Jordan at para 47 , and Coulter at para 34 . The conclusion of the trial means “the end of the evidence and argument, and no further”: R v K.G.K. , 2020 SCC 7 at para 33 , [2020] 1 SCR 364. See also: R v Safdar , 2022 SCC 21 at para 23 , 414 CCC (3d) 147.

As this trial continues and there is no end date in sight, I identify August 3, 2023, the date of my ruling on the s. 11(

b) Charter application, as the proxy for this date. [ 13 ] By my calculation, the time which has elapsed from the date charges were laid against Mr. Krunick – March 3, 2017 – to today’s date – August 3, 2023 – is 2,345 days or 6 years, 5 months, and 1 day. [ 14 ] However, before moving to the next stage of the analysis, it is necessary to deduct from this number the time I, as the trial judge, have spent writing reasons responding to legitimate defence motions or matters arising in the presentation of the prosecution’s case.

See, for example: R v Clarke , 2023 ABCA 62 at para 55 , and R v X.J. , 2023 NSCA 52 at para 12 . [ 15 ] To date, I have authored six written decisions in this matter including this one.

The time it took for me to issue my reasons for judgment responding to those applications are as follows: • Defence third party record application – March 30, 2019 to May 2, 2019 ( 34 days ); • Initial challenge to search warrant and tracker warrants – January 7, 2021 to March 12, 2021 ( 65 days ); • Garofoli Step 6 application – June 25, 2021 to September 10, 2021 ( 78 days ); • Mistrial application brought by defence – November 9, 2021 to November 26, 2021 ( 18 days ); • Second s. 8 Charter application – February 5, 2022 to May 4, 2022 ( 89 days ); and •

Section 11(

b) Charter application – March 25, 2023 to August 3, 2023 ( 132 days ). This time included ordering the production of transcripts for certain appearances not filed at the hearing on March 24, 2023. [ 16 ] Collectively, the total number of days to be deducted for judicial time spent deliberating on, and writing reasons in this matter is 416 days . [ 17 ] When this time is deducted from the total number of days calculated above, the total delay relevant in this matter is 1,929 days , i.e. (2,345 days – 416 days).

B. Calculation of Defence Delay [ 18 ] The second step in the Jordan framework involves calculating any delay attributable to the defence whether waived by it or caused solely or directly by its conduct. Delays occasioned by the defence are subtracted from the total delay because “[t]he defence should not be allowed to benefit from its own delay-causing conduct”: Jordan at para 60 . After delay occasioned by the defence is quantified, that period is to be deducted from the total delay.

The result is the “net delay” as identified in Coulter at para 35 . [ 19 ] Respecting delay occasioned by the defence, Crown counsel submitted that the Crown and the court were ready to proceed on the first scheduled trial date – May 21, 2019 – a date approximately 26 months after charges were laid against Mr. Krunick, and well within the 30-month ceiling identified in Jordan for matters proceeding in superior courts. Regrettably, however, this trial date had to be vacated.

The Crown submits that in these circumstances all further delay falls into the category of delay attributable to the defence and should be characterized as such. [ 20 ] Here, the necessity for vacating the initial trial date was legitimate as Kalmakoff J. (as he then was) permitted defence counsel to withdraw for ethical reasons. Consequently, the trial had to be rescheduled to permit Mr. Krunick’s new counsel, Mr. McKay, to familiarize himself with the case and prepare Mr. Krunick’s defence in order to ensure his client’s right to make full answer and defence.

It would be incongruous and inconsistent with the over-arching message of Jordan to hold that all delay subsequent to May 21, 2019 lies at the feet of the defence. See: R v Ghraizi , 2022 ABCA 96 at para 14 , 506 CRR (2d) 262. 1. What Constitutes Defence Delay? [ 21 ] Defence delay is one of the key elements in the Jordan framework. As described in Jordan , defence delay has two components: (1) that arising from defence waiver, and (2) delay caused solely by the conduct of the defence.

See: Jordan at paras 61 and 63 , and Coulter at para 42 . [ 22 ] Writing for the court in Manasseri , Watt J.A. explained delay attributable to the defence as follows at paras. 303 – 305: [303] Defence waiver of delay can be explicit or implicit, but it must be clear and unequivocal.

An accused must have full knowledge not only of his or her rights, but also of the effect waiver will have on those rights: Jordan , at para. 61 . [304] Delay caused solely by the conduct of the defence takes in a variety of conduct that either directly causes the delay or reveals a deliberate and calculated tactic to delay the trial, such as frivolous applications and requests: Jordan , at para. 63 . Where the court and Crown are ready to proceed, but the defence is not, the defence will have directly caused the delay.

Not so, however, where the court and the Crown are unavailable, even if the defence is not: Jordan , at para. 64 . [305] On the other hand, defence conduct legitimately undertaken to respond to the charge falls outside the scope of defence delay: Jordan , at para. 65 . See also: R.S. at paras 35-36 , and R v Bailey , 2019 SKQB 106 at paras 52-57 . 2. Explicit Waiver [ 23 ] In this case, there is one instance of explicit defence waiver in these proceedings. This occurred on May 15, 2019 when Kalmakoff J. (as he then was) vacated the initial trial date of May 21, 2019 due to the withdrawal of Mr.

Krunick’s defence counsel at the time for ethical reasons. [ 24 ] On May 15, 2021, after allowing defence counsel to withdraw, Kalmakoff J. had the following exchange with Mr. McKay, and Mr. Moffat: THE COURT: All right. Thank you. And, Mr. McKay, I understand that you’re prepared to [go] on record? MR. MCKAY: I am prepared to go on record, My Lord, on the condition that I would be making an adjournment application of the trial next week. Obviously, I would not be ready to go next week. There would have to be disclosure and – and so on and so forth.

So I would be prepared to go on record if the trial for next week were – were to be adjourned. THE COURT: Okay. MR. MCKAY: I did speak with my client and he is agreeable that any delay, any Jordan delay from the time that next week’s trial till the next trial date, he – that he would waive that. THE COURT: All right. And with – with that waiver, Mr. Moffat, what’s the Crown’s position with respect to the request for adjournment then? MR. MOFFAT: Well, My Lord, I – I can’t say that the Crown is prejudiced with that waiver. I don’t know that I – I can agree to it.

I – I can certainly take no – no position and – and acknowledge the Crown is not prejudiced. We’ve got, mainly, I think it’s simply police witnesses in this case. (Transcript of Proceedings – May 15, 2019 at page T2, line 23 to page T3, line 4.) [ 25 ] There is clear and unequivocal waiver by defence counsel of the time until “the next trial date”. However, there is disagreement between the parties as to what in this case is “the next trial date”.

Subsequently, at a criminal pre-trial conference held on August 13, 2019, new trial dates were set for May 13-15, 2020. [ 26 ] Defence counsel asserts that the waiver operated only until February 7, 2020, at which time Mr. Krunick re-

elected trial by judge alone pursuant to s. 561(7) of the Criminal Code and was arraigned on the charges against him. On that date, notice of various defence motions under the Charter was given. Those applications were then adjourned to May 13, 2020, the first day of trial. [ 27 ] Crown counsel takes the view that the explicit defence waiver given by defence counsel on May 15, 2021, continues as a new trial date has yet to be formally scheduled.

He submits that this waiver is akin to a binding admission, and it remains in effect until the “next trial date” is scheduled. [ 28 ] Respectfully, I do not agree with either position. In my view, the relevant date when this trial was to begin was May 13, 2020. This was the day scheduled to begin hearing the various motions advanced by the defence. It was also the date identified as the “next trial date” at the pre-trial conference held in August 2019.

The fact that these dates were vacated because all Saskatchewan courts closed for a time due to the emergent global pandemic (about which more will be said later in these reasons), and the motions did not proceed on those dates, is of little moment. See, for example: R v Holynski , 2023 SKKB 40 at paras 42-43 , 424 CCC (3d) 306, and R v Brahaney , 2016 ONCJ 395 at paras 34-37 . [ 29 ] Consequently, I find that the explicit waiver by the defence ran from May 21, 2019 to May 13, 2020 for a total of 359 days . I must deduct the time which has been explicitly waived from the total delay. See: Jordan at para 61 .

When this is done, it now results in a net delay of 1,570 days (1,929 days - 359 days). 3. Delay Caused by the Defence [ 30 ] Delay caused either solely or directly by the defence’s conduct must also be deducted from the total delay: Jordan at para 66 .

Such delay is caused by tactical choices which delay the trial, such as frivolous applications and requests, and include periods of time during which the court and the Crown are prepared to proceed but the defence is not: Jordan at paras 63-64 ; Manasseri at para 304 , and R v Zahor , 2022 ONCA 449 at para 64 [ Zahor ]. [ 31 ] Conversely, legitimate actions taken by the defence to respond to the charges are not included.

Such legitimate actions include non-frivolous applications or requests, and other steps to respond to the charges: Jordan at paras 64-65 ; Manasseri at para 305 , and Zahor at para 65 . [ 32 ] To begin, I am of the view that none of the applications brought by Mr. McKay and Ms. Ferg can be characterized as frivolous. Each of the motions was fully briefed and occupied at least one-half day of court time.

In addition, I wrote extensive reasons for judgment in all but the body search application which was conceded by the Crown. [ 33 ] It may be argued that these motions should have been argued seriatim and not been scattered over many months. While this may be a fair criticism, it is apparent when the reasons are reviewed, the motions were strategically brought and built on each other, particularly those motions relating to the constitutionality of the two search warrants and their respective ITOs.

I cannot conclude that all the time taken to deal with these motions should lie at the feet of the defence. [ 34 ] That said, there are three discrete periods of delay which I conclude were caused solely or directly by the defence. I identify them below. 3.1 First Period of Delay – July 11, 2017 to November 20, 2017 [ 35 ] On July 10, 2017, Mr. Krunick’s first defence counsel, Ms. Joelle Graham, requested that a preliminary inquiry be scheduled.

This inquiry was set to proceed on November 20, 2017. [ 36 ] However, on the return date, defence counsel advised the court that she would no longer proceed with the preliminary inquiry. Instead, she consented to an order committing Mr. Krunick to stand trial on these charges. It appears that she failed to provide advance notice to the Crown of this development until November 17, 2017, a few scant days before the preliminary inquiry was to begin. See: E-mail dated March 17, 2017 from Ms. Joelle Graham to Mr. Scott Moffat, Wolfe Affidavit, Exhibit “E”. The matter was then put over to January 8, 2018.

See: Transcript of Proceedings, November 20, 2017, at page T1, line 36 – page T4, line 4. [ 37 ] The time which elapsed between July 11, 2017, and November 20, 2017 was 133 days.

While defence counsel was entitled to request a preliminary inquiry and was entitled to rethink this choice on behalf of her client, it was not appropriate for her to wait until the day the preliminary inquiry was set to begin to advise the court and the Crown of her decision not to proceed. [ 38 ] I conclude that although the whole of this delay is not attributable to the defence, defence counsel should have notified Crown counsel well in advance.

Accordingly, of this delay, I attribute the time between September 20, 2017 and November 20, 2017 or 62 days as delay caused by the defence as contemplated in Jordan . [ 39 ] When this time is subtracted from the total delay, the net delay is now 1,508 days (1,570 days – 62 days). 3.2 Second Period of Defence Delay - December 14, 2018 to March 29, 2019 [ 40 ] On August 28, 2018, Mr. Krunick’s then lawyer, Ms. Sharon Fox, commenced an application seeking production of third-party telephone records. At that time, this application was scheduled to be heard on December 14, 2018.

However, that date was vacated at the request of defence counsel, even though the Crown and the court would be ready to proceed on that date. [ 41 ] Subsequently, this hearing was rescheduled to January 29, 2019 at defence counsel’s request. Yet, on January 29, defence advised the court that she had been unable to serve one of the third parties named in the application. A further adjournment to March 4, 2019 was granted. [ 42 ] Finally, on March 12, 2019, the third-party application was scheduled to proceed on March 29, 2019. It was heard on that day, and my decision reserved to May 2, 2019.

Ultimately, I dismissed this application.

[ 43 ] The time which elapsed between August 28, 2018 and March 29, 2019 was 214 days. Of this time, only 109 days, i.e. the time between August 28 when the third-party records application was commenced and December 14, 2018 when this application was originally scheduled to proceed, a date when the Crown and the court were prepared to deal with the application, does not qualify as delay caused by the defence. [ 44 ] The remainder of the days – 105 days – must be characterized as delay caused by the defence.

When this time is subtracted from the net delay of 1,516 days, it means the net delay is now 1,403 days (1,508 days – 105 days) . 3.3 Third Period of Defence Delay – December 2, 2022 to March 24, 2023 [ 45 ] On July 18, 2022, defence counsel advised the Crown and the court in a case management conference call that he would be filing this application under s. 11(

b) of the Charter with accompanying materials. [ 46 ] On September 26, 2022, a further case management conference was held. At that time, a hearing date for this application was tentatively set for December 2, 2022. The date was tentative because Mr. McKay was on medical leave, and it was not uncertain if he would be available to argue the application. Yet, Ms. Ferg, his co-counsel stated that she could do it, if necessary. See: Transcript of Proceedings, September 26, 2022, at page T2, line 18 – page T3, line 6. [ 47 ] However, on December 1, 2022, another case management conference was held.

By then, it was plain that the matter would not proceed on December 2. Neither the court nor defence was in a position to do so. The defence had not yet filed all the relevant materials, and the Crown had filed an affidavit only the day before. Since the next available date for defence counsel to argue this application was March 24, 2023, the application was re-scheduled to take place in Regina on that date. See: Transcript of Proceedings, December 1, 2022, at pages T7-T8. [ 48 ] The time which elapsed between December 2, 2022 and March 24, 2023 was 113 days .

I conclude this time should be characterized as delay attributable to the defence as contemplated in Jordan . This is because defence counsel were not in a position to argue the s. 11(

b) Charter application on December 2, 2022, and their next available date to do so was March 24, 2023. [ 49 ] When this time is subtracted from the previous net delay of 1,411 days, the net delay is now 1,290 days (1,403 days – 113 days). 4. Conclusion on Calculation of Defence Delay [ 50 ] I have concluded that the time waived by defence counsel ( 359 days ), and the delay which was caused solely or directly by the defence ( 280 days ) amounts to a total of 639 days . [ 51 ] When this time is subtracted from the total delay of 1,929 days , it leaves 1,290 days .

This represents the net delay in this matter as identified in Jordan at para 66 , and Coulter at para 35 . C. Compare Net Delay to Presumptive Ceiling [ 52 ] Once the net delay is determined, it is necessary to compare the net delay to the applicable presumptive ceiling.

The presumptive ceiling for all matters prosecuted in a superior court is 30 months from the date of charge: Jordan at para 46 , and Zahor at para 66 . [ 53 ] For present purposes, the presumptive ceiling is 913 days , i.e. the time between March 3, 2017 (the date of charge) and September 2, 2019 (30 months from the date of charge). [ 54 ] When the net delay of 1,298 days is compared to the presumptive ceiling of 913 days, it is apparent that the net delay exceeds the presumptive ceiling date by 377 days (1,290 days – 913 days) . D.

Exceptional Circumstances [ 55 ] As I have determined that the net delay in this case is above the ceiling of 30 months, it is presumptively unreasonable. See: Coulter at para 37 . The onus is now on the Crown to rebut this presumption by demonstrating exceptional circumstances. See: Jordan at para 105 , and Zahor at para 66 . 1. What are Exceptional Circumstances? [ 56 ] Exceptional circumstances are circumstances that lie beyond the Crown’s control because they are reasonably unforeseen or reasonably unavoidable, and in either case result in delay that cannot be reasonably remedied or mitigated by the Crown.

See: Jordan at para 69 . [ 57 ] The Crown may satisfy its onus by relying on three categories of exceptional circumstances. These are (1) discrete events; (2) complex prosecutions, and (3) transitional considerations. See: Jordan at para 71 , and Cody at para 46 . The third category of exceptional circumstances – transitional considerations – is only relevant in cases which were already in the system when Jordan was decided. That category is not relevant here. [ 58 ] To discharge its burden the Crown cannot rely on any consideration beyond exceptional circumstances. Not the seriousness of the offences charged.

Not the absence of prejudice nor institutional or systemic delay. See: Jordan at para 81 , and Zahor at para 69 . Absent demonstrating exceptional circumstances, the Crown will not have satisfied its burden and a stay of proceedings must be entered. See: Jordan at para 47 . [ 59 ] Discrete events which may constitute exceptional circumstances include a medical or family emergency affecting one or more of the participants in the criminal justice system or a witness who unexpectedly recants while testifying compelling

the Crown to alter its case. See : Jordan at paras 72-73 , and Zahor at para 70 . 2. Analysis of Exceptional Circumstances in This Case [ 60 ] There are two instances in this case which may qualify as discrete exceptional circumstances and permit the delay resulting for these events to be deducted from the net delay of 377 days identified above. 2.1 Illness of Defence Counsel [ 61 ] As noted, Mr. McKay, one of the defence counsel, was on medical leave in fall 2022, and did not return to practice until early December 2022.

While this could qualify as a discrete exceptional circumstance, it does not in this case because Mr. Krunick had two defence counsel. Ms. Ferg, Mr. McKay’s co-counsel, was very familiar with the file, and indeed, had suggested that she could likely handle the defence argument on the s. 11(

b) Charter application on December 2, 2022, if need be. See: Transcript of Proceedings, September 26, 2022, at page T3. In these circumstances the time which elapsed between September 26, 2022 to December 2, 2022 does not qualify as a discrete exceptional circumstance. 2.2 Impact of COVID-19 [ 62 ] It is accepted that impact of the global pandemic created by COVID-19 upon the criminal justice system qualifies as an exceptional circumstance.

See, for example: R v Gardener , 2023 SKCA 12 ; R v Holsworth , 2022 BCCA 328 at para 11 , 519 CRR (2d) 172 and R v G.M. , 2022 NLCA 43 at para 7 . [ 63 ] Accepting this, the question is to what extent did COVID-19 affect the prosecution of these charges against Mr. Krunick? [ 64 ] The Crown filed four Public Health Order Provincial Orders issued by Dr. Shahab dated December 14, 2020; December 17, 2020; March 9, 2021, and March 23, 2021, respectively which were attached as exhibits to the Wolfe Affidavit.

While these are of general interest, what is more pertinent to this case are the steps taken by the then Court of Queen’s Bench in response to the declaration of a global pandemic. These steps are helpfully reviewed by McMurtry J. in R v Ukabam , 2021 SKQB 152 at paras 16-24 [ Ukabam ]. [ 65 ] As McMurtry J. noted in Ukabam at para 16 , the Chief Justice issued the court’s directive and advisory dated March 19, 2020, suspending this Court’s regular operations effective March 19, 2020. Consequently, the trial scheduled to begin on May 13, 2020 was vacated.

The endorsement dated May 13, 2020 on the court file indicates that this “matter is placed on the June 9, 2020, pre-trial list for re-scheduling”. [ 66 ] At the pre-trial conference on June 9, 2020, it was put over again to the pre-trial conference on July 28, 2020.

At that time, the endorsement on the court file states: “Counsel to tentatively keep open January 6-8, 2020 [ sic ] dates for motion dates”. [ 67 ] At another pre-trial conference on August 18, 2020, the application brought under s. 8 of the Charter challenging the two warrants and their respective ITOs was formally scheduled to be heard on January 6-7, 2021. [ 68 ] I am persuaded that the Crown has demonstrated COVID-19 was a discrete exceptional circumstance which would justify the delay which elapsed from May 14, 2020 to August 18, 2020 or 97 days .

I have already determined that the defence explicitly waived delay from May 21, 2019 to May 13, 2020. Consequently, the time from the vacated trial date to the date when new dates for the s. 8 Charter application were finalized, qualifies as the delay occasioned by COVID-19. This was the time it took for the court to reschedule this matter following the suspension of the court’s operations on March 19, 2020. 3.

Remaining Delay [ 69 ] Having determined that a delay of 97 days was attributable to COVID-19, and qualified as a discrete exceptional circumstance, I must subtract this delay from the net delay to determine the “remaining delay”, and if it still exceeds the presumptive ceiling. [ 70 ] When the 97 days of discrete exceptional circumstances are subtracted from the net delay of 385 , the remaining delay is 280 days. Here, the remaining delay exceeds the presumptive ceiling. Consequently, it remains for the Crown to justify this time in light of the particular complexity of the case.

See: Jordan at paras 75-77 , and Zahor at para 72 . 4. Complexity of the Case [ 71 ] The Crown did not present any submissions or evidence which would demonstrate that this prosecution was particularly complex. I acknowledge that the logistics of scheduling the various defence applications were made more complicated by the fact that defence counsel practiced in Calgary, Alberta, and Crown counsel practiced in Weyburn, Saskatchewan. As well, although I was the trial judge, I am resident in Regina, and am only sporadically assigned to preside in Estevan.

Attempting to avoid delaying these proceedings as much as possible, many appearances were virtual, and some in-person proceedings were held in Regina with the consent of the accused and counsel. Regrettably, however, those efforts proved insufficient. [ 72 ] Despite the logistical challenges present, and the accommodations made in this case, I do not think it was so unduly complex it could justify the remaining delay. See, generally: Cody at paras 63-64 . 5.

Conclusion on Exceptional Circumstances [ 73 ] As the remaining delay cannot be justified based on the complexity of this particular case, a stay of proceedings must be entered. See: Jordan at para 47 , and Zahor at para 75 .

V. CONCLUSION [ 74 ] For these reasons, I find that Mr. Krunick has established on a balance of probabilities that he has been deprived of his right to be tried within a reasonable time as guaranteed by s. 11(

b) of the Charter . Accordingly, I direct a stay of proceedings in this matter. J. G.G. MITCHELL KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 165 Date: 2023 08 15 Docket: CRM-ES-00033-2017 Judicial Centre: Estevan BETWEEN: JORDAN KRUNICK APPLICANT - and - HIS MAJESTY THE KING RESPONDENT Counsel: Ian D. McKay and Heather D. Ferg for the applicant Scott R. Moffat, K.C. for the Attorney General of Canada August 15, 2023 MITCHELL J. CORRIGENDUM to REASONS FOR ORAL DECISION ON S. 11 (

b) CHARTER APPLICATION DATED AUGUST 3, 2023 WRITTEN DEICISION of (August 8, 2023) (2023 SKKB 165)

[ 75 ] Paragraph 6 should read “and the Court of King’s Bench in Estevan”; not “and the Court of Queen’s Bench in Estevan”. [ 76 ] Paragraph 8, May 28, 2021 should read: In camera hearing held to review ITO.

Crown counsel will prepare summaries to be reviewed by the trial judge. [ 77 ] Paragraph 17 should read “ 1,929 days ”; not “ 1,937 days ”. [ 78 ] Paragraph 22 should read “Writing for the court in Manasseri , Watt J.A. explained delay attributable to the defence as follows at paras. 303 – 305:”. [ 79 ] Paragraph 29 should read “ 1,570 days (1,929 days - 359 days)”; not “ 1,578 days (1,937 days - 359 days)”. [ 80 ] Paragraph 39 should read “ 1,508 days (1,570 days – 62 days)”; not “ 1,516 days (1,578 days – 62 days)”. [ 81 ] Paragraph 43 should read: The time which elapsed between August 28, 2018 and March 29, 2019 was 214 days.

Of this time, only 109 days, i.e. the time between August 28 when the third-party records application was commenced and December 14, 2018 when this application was originally scheduled to proceed, a date when the Crown and the court were prepared to deal with the application, does not qualify as delay caused by the defence. [ 82 ] Paragraph 44 should read “ 1,403 days (1,508 days – 105 days) ”; not “ 1,411 days (1,516 days – 105 days) ”. [ 83 ] Paragraph 49 should read “ 1,290 days (1,403 days – 113 days)”; not “ 1,298 days (1,411 days – 113 days)”. [ 84 ] Paragraph 51 should read “ 1,929 days , it leaves 1,290 days .”; not “ 1,937 days , it leaves 1,298 days .”. [ 85 ] Paragraph 54 should read “ 377 days (1,290 days – 913 days) ”; not “ 385 days (1,298 days – 913 days) ”. [ 86 ] Paragraph 60 should read “377 days”; not “385 days”. [ 87 ] Paragraph 70 should read “ 280 days ”; not “ 288 days ”.

J. G.G. MITCHELL