R v Yusuf, 2022 ABKB 702

Court of King’s Bench of Alberta Citation: R v Yusuf, 2022 ABKB 702 Date: 20221021 Docket: 210950598Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Daso Yusuf Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the Complainant must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Endorsement of the Honourable Justice M. J. Lema _______________________________________________________

A. Introduction [ 1 ] The accused seeks a stay of proceedings on account of pre-charge delay. [ 2 ] He argues that police laxity led to pre-charge delay of approximately two years and that faded-memories prejudice should be inferred. [ 3 ] With no actual prejudice to the defence position, no inference of prejudice warranted, and no material integrity-of-justice- system concerns, I deny the application. B. Background [ 4 ] The core background is reflected in an Agreed Statement of Facts: 1.

The date of the alleged [sexual assault and sexual interference] offence[s] against the complainant … is between September 1, 2018 – October 6, 2018. 2. On October 10, 2018, the Complainant had reported the incident to her mother. Police were called. Cst. Rus attended and spoke with the Complainant, who provided an initial verbal account of what happened. 3. On October 18, 2018, the Complainant’s friend, and witness, [D], provided an audio/video recorded statement to Cst. Rus, which was later reviewed by Det. Church on October 23, 2018. 4. On December 11, 2018, the Complainant met with Det.

Church at the Zebra Child Protection Centre to obtain an audio/visual recorded statement. 5. On June 20, 2018, Det. Church reviewed the interview she had taken with the Complainant on December 11, 2018, and “formed reasonable and probable grounds” for arresting the Applicant on these charges. 6. No investigative steps had been taken between December 11, 2018, and June 20, 2019, in relation to Mr. Yusuf. There were no changes to the Complainant’s video recorded evidence, or to its significance in the case between December 11, 2018 – June 20, 2019. 7. At no time did police issue a warrant for Mr.

Yusuf’s arrest, nor did they make any contact with him to make him aware of the allegations. 8. On December 17, 2020, Det. Church “created an arrest plan” and contacted the Applicant by phone. The Applicant was responsive and cooperative and met with Det. Church at the Southwest Police Station where he was placed under arrest for sexual assault and sexual interference. 9. Det. Church was asked by the Crown prosecutor to describe the reason for the delay in charging Mr. Yusuf. She provided two reasons: a.

First, based on the information that the Complainant and [D] had told her, she was trying to identify other males that may have been involved. Mr. Yusuf was initially charged as a stand-alone accused on his own information. The possible presence of other suspects did not impact that decision. Similarly, it did not impact the nature of the Complainant’s allegations against Mr. Yusuf which did not consist of any type of group, or co-accused, activity. b. Second, she was responsible for investigating up to 15-18 other complaints at the same time.

She was also responsible for assisting colleagues with their own files. She worked on this file as time permitted. 10. There was nothing complex about this case that required additional investigatory time or resources. This was not a complicated or voluminous offence. 11. There were no conditions restricting Mr. Yusuf’s ability to contact the Complainant from October 10, 2018, when she [had] first reported the sexual assault to police to December 17, 2020, when Det. Church arrested Mr. Yusuf. 12. In a call with the Crown prosecutor on October 11, 2022, Det.

Church acknowledged the pre-charge delay in this case was her responsibility and was longer than it should have been. C.

Defence arguments [ 5 ] The defence’s arguments were outlined in a filed brief, with authorities. [ 6 ] The Crown also provided a brief, with authorities. [ 7 ] The parties jointly asked that I decide the stay application on the basis of the agreed statement of facts and their written materials i.e., with no need for viva-voce evidence. [ 8 ] In a nutshell, the defence points to approximately two years over which the file was effectively allowed to languish i.e., from the December 2018 recorded interview of the complainant until the December 2020 interview of the accused, which was followed

shortly by the swearing of the information against him (January 7, 2021). [9] Per the defence, that delay and resulting prejudice to the defence’s position breached both his

section 7 fair-trial right and hissection 11(

b) trial-within-a-reasonable-time right. Jordan (s. 11(b)) argument unavailable here [10] I reject the s 11(

b) argument: • the case law is clear that pre-charge delay is generally irrelevant to measuring pretrial delay under that provision, the time clockfor which is triggered by the information i.e., the charging of the accused: R v Kalanj, (SCC), [1989] 1 SCR 1594(majority judgment); • while pre-charge delay can inform the gauging of post-charge delay (e.g., where, following such earlier delay, a greater sense ofurgency may be required to advance the file post-charge), the defence does not actually argue that post-charge events proceeded undulyslowly.

Instead, it merely comments that the post-charge delay so far (approximately 22 months) “does not suggest that any sensitivity orurgency has been added to bring Mr.

Yusuf to trial” i.e., without showing that, at any given post-charge point, undue or otherwise-reducible delay occurred i.e., that a heightened post-charge pace was required and what it should or might have looked like; and • in any case, nothing in the record shows that the defence took any particular steps to try to accelerate the pace of the post-chargeevents or even complain about the pace of those events (i.e., aside from eventually bringing this application): see R v Cranston, 208ONCA 751 at paras 62 and 63 (accused taking no steps to push for an early trial).

As the Crown noted: “No correspondence from theApplicant to the Crown regarding earlier dates to lessen the delay after the information was sworn was provided.

Furthermore, theApplicant elected to have a preliminary inquiry, rather than go directly to trial, knowing that the passage of time may impact his abilityto recall incidents as he is now suggesting.” Abuse of process arguments [11] The focus narrows to the s. 7 argument and whether the pre-charge delay of approximately two years has either causedprejudice to the accused’s fair-trial rights or damaged the integrity of the justice system and, if so (either way), the appropriate remedy isto stay the charges here. [12] The accused invoked, among other cases, the dissenting analysis of Hoegg JA in R v Hunt, 2016 NLCA 61, which theSupreme Court of Canada endorsed in 2017 SCC 25 as the framework for pre-charge-delay analysis, as well as (among other cases) R vO’Connor (SCC), [1995] 4 SCR 411 and R v Babos, 2014 SCC 16 as establishing the overall framework for abuse-of-process analysis. [13] Prejudice can be actual or inferred.

The defence does not point to actual prejudice here. Inferred-prejudice arguments [14] Here are the defence’s inferred-prejudice arguments: The pre-charge delay of 2 years and 27 days has prejudiced the Applicant’s ability to make full answer and defence and hascompromised his right to a fair trial. R v Piche, 2020 ABQB 202 … is a transitional case that addresses both pre-charge and post-chargedelay and provides a fulsome analysis of evaluation of prejudice to the accused beginning at para 17.

A court may draw an inference of prejudice, even where an accused is not aware of the charges against him or her, based simply on thepassage of time: Piche at para 27-29 citing Henderson PCJ (as he then was) in R v Swindler, 2009 ABPC 334 …. The passage of time invariably impacts an accused’s memory and the memory of other potential witnesses.

The finding of witnesses anddocuments is much more difficult after the passage of time and any witness, including the accused, must be presumed to have a poorerrecall of the evens than they would have had shortly following the event: Piche at para 28 citing Swindler at para 45. Similarly, trial fairness in this case will be impacted by the Complainant’s testimony for two reasons: First, given the nature of thecharges, the Crown will apply to introduce the Complainant’s audio/video recorded statement to Det. Church from December 11, 2018,into evidence pursuant to

section [715.1] of the Criminal Code. This will effectively mean that the Crown will benefit from having atime capsule of the Complainant’s version of events that was recorded a mere two months after the offence as forming her evidence inchief. The Applicant, on the other hand, was not even called on to respond to the charges until he was made aware of the policeinvestigation on December 17, 2020, over two years later. Second, approximately four years will have elapsed from the date of the [alleged] offence in October, [2018] to the anticipated date oftrial in October 2022.

Credibility and reliability are overriding issues in this case, and the cross-examination of the complainant isimportant. The passage of time will make it easy for the Complainant to retreat (likely honestly) into forgetfulness, due to the passage oftime, thereby preventing the defence form exposing frailties in her evidence: Piche at para 31 citing Wright [R v Wright, 2003 ABQB1003] at para 39. [15] In the first-identified-above excerpts from R v Piche, Michalyshyn J wrote: In Swindler, the accused was charged with unlawfully stealing vehicle parts of a value not exceeding $5,000.

She was unaware she wasfacing criminal charges for more than three years after the Information was sworn against her. Total delay was 42 months. The delayfrom charge to arrest was the result of what Henderson PCJ (as he then was) found to be the authorities’ deliberate decision to adopt a

“passive strategy” after the warrant issued and was placed in the police computer system following the swearing of the Information. Henderson PCJ drew an inference of prejudice based simply on the passage of time: While the Accused was unaware that she was facing criminal charges, she was not able, either on her own or through counsel, to gather evidence and organize her defence . It was not until more than 3 years after the Information was sworn that she first learned of the charges. This is a very lengthy delay.

Finding witnesses and documents after the passage of 3 years is much more difficult than if timely notice of the charges had been provided to the Accused . In addition, any witness who could be found after that length of delay, must be presumed to have poorer recall of the events that they would have had shortly following the event . I therefore infer a risk prejudice to the Accused from the delay itself. [para 45] However, findings of actual prejudice were also made: In the evidence given in the Voir Dire , there were several illustrations of the impact that time has had on the memory of witnesses .

For example, the Accused gave evidence and was in error by more than one year regarding the timing of her relationship with Osburn. In addition, Osburn gave evidence but had very little recall regarding the details of his involvement without referring to his statement which was prepared more than one month after the alleged incident.

At a minimum the deficiencies in the memory of the witnesses create a risk that the Accused’s ability to make full answer and defence has been prejudiced . [para 46 of Swindler ] [paras 27-29 from Piche ] [ 16 ] The second emphasized part of Piche is para 30 and 31 , where Michalyshyn J. drew from R v Wright (Slatter J. as he then was), cited above: In R v Wright , 2003 ABQB 1003 the accused was charged with the offences of assault with a weapon and uttering threats. A period of 40 months elapsed between the sworn Information and the accused’s arrest.

The Crown offered no sound explanation for the delay which Slatter J (as he then was) concluded was again the result of a “passive strategy” not unlike the case in Swindler . While prejudice was inferred just as a result of the delay, Slatter J also found there was evidence of actual prejudice : As far as specific prejudice goes, Counsel acknowledged that the telephone records from 1999 are no longer available . Counsel for the Accused suggested that this would prevent the Accused from rebutting the allegations that he was frequently and persistently making harassing telephone calls.

If the Accused had been making calls three or four times a day, as alleged, that would have shown up on the records. If he was only making the normal social calls that he suggested, that too would have been corroborated by the telephone records. The Accused also relied on the compromised memory of the complainant. At the preliminary inquiry, held in May of 2003, the complainant’s evidence was in some respects vague. Counsel for the Accused noted that she testified “I can’t remember” on numerous occasions , although some of these answers were with respect to inconsequential issues.

She was however unable to provide particulars of one important element: the exact wording of the threats that were alleged to have been uttered on the telephone . Her memory of the alleged assault was however clear. Counsel for the Accused also suggested that her ability to cross-examine the complainant was compromised by the delay. Credibility is an overriding issue in this case, and the cross-examination of the complainant is important.

Counsel for the Accused suggested that if the complainant was evasive in her answers, she would always be able to retreat into forgetfulness due to the passage of time, thereby preventing the Defence from exposing the frailties of her evidence. I accept that this is a factor in this case . [paras 37-39 from Wright ] [paras 30 and 31 of Piche ] [ 17 ] Michalyshyn J. also drew from R v MS , 2017 MBQB 12 and R v Patrick , 2012 SKQB 331 : In MS the period of delay between charge and arrest was about 18 months and total delay was over 44 months in the context of a sexual assault prosecution.

With regard to prejudice, Dewar J appeared to find no actual prejudice. He did infer prejudice in staying the proceedings: The accused deposes in his affidavit that he has suffered stress, anxiety, embarrassment, loss of sleep, perceived loss of reputation in his community, loss of business opportunities and potential income as a result of the charges. However, simply professing these types of concerns, without more, is generally not sufficient to demonstrate “actual prejudice”.

However, as indicated above, the lengthy delay does impact the accused’s trial fairness interest, especially since this is a case which will turn largely on credibility. It is not unusual in such cases for the presiding judge to be influenced by witnesses’ abilities to recount details of the incidents and surrounding matters. Answers which are shrouded in uncertainty and details that are lost because of the effect that the passage of time has on memory do not assist in the fact-finding effort. Cross-examination on difficult points is easily frustrated by a witness’s lapse into “I can’t recall”.

Therefore, I am prepared to infer some prejudice to the accused which is based upon the loss of evidence caused by the effect of the passage of time on the ability of witnesses to accurately recall . As in Godin , this is an unquantifiable risk which was not caused by the accused. [paras 61 and 62 of MS ] Though not argued squarely before me, another case of interest is R v Patrick , 2012 SKQB 331 , in which the accused faced drug-related charges. In Patrick some 26 months elapsed between a warrant and the accused’s arrest. Total delay was more than 54 months.

The accused asserted actual prejudice in terms of advancing a defence of entrapment, and although his assertions of actual prejudice do not appear to have been unequivocally accepted by the court, nevertheless a risk of prejudice was found, and a stay was ordered: I agree with the accused that with the inordinate delay that has occurred, there is a very real risk to his right to make full answer and defence.

However, whether or not the accused had been able to demonstrate actual prejudice to his fair trial interests, in this case it may be inferred given the length of time between the laying of the charges and the proposed trial. Fifty-four and a half months is excessive, and the Crown is solely responsible for 30 months of that delay. (at para 32) [paras 33 and 34 of Piche ] [emphasis added]

[18] Here are the relevant conclusions from Piche: What’s left is the Morin factor of prejudice to the accused. As noted above, Wright, K(EB) and McDougall were all cases in whichalongside findings of actual prejudice, an inferred risk of prejudice was found owing to the passage of time and the likely impacton the accused’s right to make full answer in defence. The cases of Swindler, MS, and Patrick appear to have been decided squarelyon the basis of such inferred risks of prejudice.

In all of these cases, the periods of delay between warrant and arrest, and overall, weresimilar to the delay in the case before me. As noted in several of the decisions just reviewed, making full answer in defence particularly in sexual assault cases invariablyengages issues of credibility, findings about which often turn on, amongst other things, witnesses’ abilities to recount details of thealleged incidents and surrounding matters.

As noted in Wright, there is at least a risk that in cross-examination in particular “if thecomplainant was evasive in her answers, she would always be able to retreat into forgetfulness due to the passage of time, therebypreventing the Defence from exposing the frailties of her evidence.” What’s more, delay gives rise at least to the risk of poorermemory of all potential witnesses at a trial, including the accused.

Notwithstanding the absence of evidence of actual prejudice in the case before me, I find these same inferred risks of prejudice to theaccused are a significant factor to be taken into account on a Jordan analysis of the reasonableness of delay on the whole. [paras 41-43] [emphasis added] Analysis of inferred-prejudice arguments [19] I find those prejudice-inferred cases distinguishable or otherwise inapplicable here: • some of them featured actual prejudice to the accused’s position, potentially making inferred-prejudice findings unnecessary; • in any case, none of them apparently explored the option of gauging prejudice during or at the conclusion of the evidence phase ofthe trial i.e. to see whether in fact memories had faded in material ways or the complainant indeed lapsed into a general “I forget” patternof testimony: see, for example, R v Adam, 2006 BCSC 350 (Romilly J.) at para 198; R v G (W G), (NLCA)(paragraph beginning “I, therefore, respectfully conclude …”, specifically “ … When the trial proceeds it is possible that it may bedemonstrated that delay has so prejudiced a fair trial.

If so, it may be dealt with at that time in relation to the circumstances pertaining.…”; and R v Cunningham, [1992] OJ No. 2754 (“… Nothing said in these reasons [excerpted further below, denying a pre-charge-delay-based stay at the commencement of a trial] in any way precludes the trial judge from dealing with any allegation of unfairnessbased on pre-charge delay which may arise in the course of the trial”) (para 3); • I do not have any enough evidence to gauge whether, whatever the general phenomenon of memories fading over time, it isappropriate to assume that it applies to the witnesses here or, if so, to what degree. (In R v DM, 2012 ONSC 221, Boswell J. found“likely significant degradations in recollection” over 26 years but that “any prejudice from fading memories within [a key 2.5-yearsubset] period is minimal … is relatively minimal” (para 89)); • in any case, in the present case, the complainant’s evidence in chief may well come in the form of her

section 715.1 statement,admission of which will hinge, in part, on whether she adopts it as her evidence; • in any case, aside from stating that the case will hinge on “credibility and reliability”, the defence did not offer evidence from theaccused as to memory loss or deterioration. As well, it did not particularize its proposed defence(s), even in general terms, to enable meto gauge whether faded memories are likely to be a material factor, even it is generally true that memories fade over time and have in facthere.

See these further comments of Slatter J. (as he then was) in Wright: Different considerations apply to the first count. At the preliminary inquiry the complainant had a clear recollection of the events said toconstitute the assault with a weapon. She also gave a statement to the police in April of 1999 that can be used in cross-examination. Aspreviously indicated, the Accused does not depose to any memory loss as a result of his accident, or as the result of the passage oftime.

In any event, the nature of the defence offered is relevant to an assessment of prejudice, and the Accused’s position is thatneither this incident nor anything remotely resembling it ever happened. There is accordingly no need for the Accused to specifyany details of the event, given his position of absolute denial. There is no defence such as alibi, which would require a precisememory of times and places. Accordingly, the prejudice to the Accused resulting from the delay is minimal.

Assault with a weaponis a serious charge, and society has an interest in seeing this charge decided on the merits. [para 42] [emphasis added]; and • concerning the defence’s assertion of “time capsule” unfairness i.e., arising from the possible application of s. 715.1 of theCriminal Code here, in R v L. (D. O.), (SCC), [1993] 4 SCR 419 the Supreme Court of Canada addressed and rejectedthe same or similar “unfair-advantage-to-complainant” arguments. Per the majority (per Lamer CJ): I have read the reasons of Madame Justice L'Heureux-Dubé and concur in her result.

It is my view that s. 715.1 of the Criminal Code,R.S.C., 1985, c. C-46, is a response to the dominance and power which adults, by virtue of their age, have over children. Accordingly,s. 715.1 is designed to accommodate the needs and to safeguard the interests of young victims of various forms of sexual abuse,irrespective of their sex.

By allowing for the videotaping of evidence under certain express conditions, s. 715.1 not only makesparticipation in the criminal justice system less stressful and traumatic for child and adolescent complainants, but also aids in thepreservation of evidence and the discovery of truth. I would answer the constitutional questions in the same manner as my colleague. As s. 715.1 neither offends the principles offundamental justice nor violates the right to a fair trial, it cannot be said to limit the rights guaranteed under s. 7 or 11(

d) of the CanadianCharter of Rights and Freedoms. The respondent has failed to establish that s. 715.1 offends the rules of evidence against the admissionof hearsay evidence and prior consistent statements. In addition, as there is no constitutionally protected requirement that cross-examination be contemporaneous with the giving of evidence, the respondent has failed to show that his fundamental right to cross-examine has been violated. The admission of the videotaped evidence does not make the trial unfair or not public, nor does it in any way

affect an accused's right to be presumed innocent. [first two paragraphs of majority judgment; see also the detailed analysis ofL’Heureux-Dube J. from “Constitutionality of

Section 715.1” to immediately before “Judicial Discretion”] • as well,

section 715.1 expressly authorizes the trial judge to edit or refuse to admit videotaped evidence where the “admission ofthe video recording in evidence would interfere with the proper administration of justice”, as noted by the SCC majority in L. (D.O.)(third paragraph) and by L’Heureux-Dube J. in her

section “Judicial Discretion.” [20] Staying on the basis of inferred prejudice is akin to imposing a limitation period on the laying of an information, whereParliament has not done so, at least for the kinds of charges here.

Or at least the parties did not point to any such statutory limitationperiods here: see R v L (WK), (SCC), [1991] 1 SCR 1091 (paragraph beginning “Staying proceedings based on …”) andR v G (W G) (NLCA), cited above (paragraph beginning “It was within the context …”). [21] I decline to infer prejudice here i.e., without more evidence about the state of the accused’s memory and the degree to whichany memory loss might undercut or diminish the defence’s actual positions here.

Particularly with the events, at least from thecomplainant’s perspective, being “preserved in amber” (per the anticipated ss. 715.1 evidence) and thus available as a possible spur tothe accused’s recollection of events (whether overlapping, in whole or in part, or entirely different). Especially with no actual prejudiceasserted or obvious at this stage.

And where any actual prejudice arising from faded or lost memories can be measured during or at theclose of evidence i.e., when now-asserted prejudice will be revealed as speculative (not borne out) or otherwise i.e., with the possibilityof a renewed application for

section 7 (fair trial compromised) relief. [22] In R v Lima, 2016 ONCJ 167, a “lackadaisical [police] investigation”, which led to a loss of key evidence, was not a reason tostay charges (instead a factor for sentencing). [23] As the Ontario Court of Appeal held in R v Cunningham (cited above): … The mere possibility that pre-charge delay could prejudice the right to make full answer and defence does not justify a stay ofproceedings at the commencement of trial.

Absent a demonstration by the respondents, on a balance of probabilities, of actual prejudice to the right to make full answer and defencejustifying a stay, there was no basis in this case for finding that the pre-charge delay infringed the respondents’ rights under the Charter.[paras 1 and 2] [24] All to say: I do not discern any material risk, at this stage, to the accused’s fair-trial rights under

section 7. [25] Accordingly, no stay is warranted on this basis, at least at this stage. “Integrity of the justice system” arguments [26] Here are the defence’s argument on this aspect: Det. Church’s conduct and failure to act firstly on (1) the information that she had been provided by Cst.

Rus who had interviewed theComplainant on October 10, 2018, where she had disclosed that she had been sexually assault … or secondly (2) on the information thatshe had learned upon conducting the December 11, 2018, interview with the Complainant at the Zebra Centre … Society has a legitimate interest in encouraging the reporting of sexual assaults: R v O’Connor (SCC), [1995] 4 SCR411 … at para 20.

There are several regimes presently in place including a third-party record regime under Mills and a statutory regimeunder s. 276 of the Criminal Code, for example, that Parliament has enacted in part to avoid deterring sexual assault victims fromreporting offences. The Applicant submits that the public would be outraged to learn that a 15-year-old had reported that she had been sexually assaulted inOctober 2018 but that no charges were laid against the Applicant for over 2 years.

The public would lose confidence in the integrity ofthe administration of justice were it to learn that for those 2 years, there was no warrant issued for the Applicant’s arrest, and similarlyno conditions that would restrict him from having contact with the 15-year-old complainant. Det. Church’s explanation that she had anywhere from 15-18 other complaints that she was investigating and that was only able to workon this case “as time permitted” … falls short of the quality of policing that the public expects.

The majority of the Court in [R v Babos, 2014 SCC 16] held that in considering whether to allow the proceeding to continue or to order astay, the question to be answered is “whether the proceeding in light of the impugned conduct would do further harm to the integrity ofthe justice system. […] The Court must still consider whether proceeding would lend judicial condonation to the impugned conduct” –[R v Miller, 2019 ONCJ 480 (Justice Hilliard)] at para 93 citing Babos at para 38. By allowing the proceedings to continue, this Court would be sending the message to the public that Det.

Church’s delay of 2 years and27 days during which point she chose not to lay an information or take any steps to arrest the Applicant is [acceptable].

The Applicantsubmits that the Court needs to distance itself from this conduct so as to not send a message to the public that the judiciary condones andexcuses this police conduct. [27] On this aspect, the Crown cited the following passage from Canada (Minister of Citizenship & Immigration) v Tobiass, (SCC), [1997] 3 SCR 391: For a stay of proceedings to be appropriate in a case falling into the residual category [of abuse of process], it must appear that the statemisconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice.

Ordinarily, the latter condition will not be met unless the former is as well – society will not take umbrage at the carrying forward of aprosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct

is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare. [para91] [28] I find as follows: • unlike in some of the cases above, no evidence showed that Det. Church deliberately set out to delay matters i.e., as a tactical orstrategic call; • the evidence also does not show that she forgot about this file, even if one might wonder about that; • I infer from the agreed evidence about her other file assignments and assisting colleagues on their investigations that, in the settingof file priorities, the current file received low priority.

While the prosecution could have provided more information about those otherassignments and such assistance and, more generally, about the setting of file priorities and (by extension) about the overall system ofmanaging (including tracking) these files at the Edmonton Police Service, it is not the Court’s role to oversee such administrative mattersi.e. to effectively supervise the running of police files: see R v L. (W.K.), cited above (paragraphs starting “Delay in charging …” and“Absent any contention …”); R v Hunt, cited above, paras 104 and 113; Rourke v The Queen (SCC), [1978] 1 SCR1021 at 1040-1041 (paragraph beginning “The facts and indeed the situation …”); and R v Young, (ONCA) (sentencebeginning “Courts cannot undertake the supervision of the operation or the efficiency of police departments ….”); • no evidence shows this to be a systemic problem here, whether with Det.

Church (i.e., her own file-management system), thisparticular work unit, or the EPS generally; • Det. Church conceded that her work on this file took longer than it should have; and • the public airing of this acknowledged shortfall (i.e., investigative work that could have been performed more quickly) willpresumably be a useful tonic for Det.

Church and any of her colleagues or other police investigators pondering whether work can orshould be advanced on a given file, whether on her or his or their own or by invoking the assistance of others. [29] I do not find an abuse of process; instead, orthodox process (i.e., typical steps required and taken) that took longer than itshould have. [30] If the delays here are ultimately shown to have caused actual prejudice to the accused’s fair trial rights, the accused’s fair-trialrights can be examined i.e., if pursued again in or at the end of the trial. [31] However, the delayed advancement of this investigation is not inherently abusive i.e., the kind of egregious, offensiveconduct that requires the court’s denunciation and “distancing” i.e., a characterization of the proceeding as so radioactive that it needs tobe abandoned. [32] Contrary to the defence’s assertion, I find that the public might be disappointed that this investigation took this long tocrystallize but would be shocked and dismayed to learn that the outcome was the negation of the charges via a stay of proceedings.

Inother words, whatever file-management shaping up needs to be done (if not done already), it does not require the staying of the chargesto be accomplished. [33] Accordingly, I find no affront to the integrity of the justice system here or, in any case, nothing requiring more than the notingof acknowledged sub-optimal performance and a caution that the outcome may be different if similar circumstances present again. D. Conclusion [34] For the reasons provided, I decline to stay the charges on either Jordan or

section 7 grounds, finding no actual or inferredprejudice to the accused’s interests or position and no conduct casting a material shadow on the administration of justice. [35] Accordingly, the trial shall proceed as scheduled, on October 24-28, 2022. [36] Incidentally, the parties’ briefs also included s. 10(b) (right to counsel) arguments bearing on a statement given by the accusedto police. However, they recently advised that viva-voce evidence will be required on that point from the attending officer and that suchwill be presented at the opening of the trial, followed by arguments on the s. 10(

b) point.

Heard by way of written submissions provided by the 14 th day of October, 2022. Dated at Edmonton, Alberta this 21 st day of October, 2022. M. J. Lema J.C.K.B.A. Appearances: Scott Niblock Crown Prosecutor for the Crown Laura Matalas Pringle Chivers Sparks Teskey for the Accused