Docket: CACR2001 Her Majesty the Queen Appellant - v. -, 2012 SKCA 120

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 120 Date: 2012-12-11 Between: Docket: CACR2001 Her Majesty the Queen Appellant - and - Evan Richards Respondent Coram: Vancise, Richards and Caldwell JJ.A. Counsel: Wade McBride for the appellant Lawrence Zatlyn , Q.C., for the respondent Appeal: From: 2011 SKQB 106

Heard: September 4, 2012 Disposition: Allowed Written Reasons: December 11, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Caldwell Richards J.A. I. Introduction [ 1 ] This appeal concerns s. 11(

b) of the Charter . It, of course, provides that any person charged with an offence has a right to be tried within a reasonable time. [ 2 ] The respondent, Evan Richards, was charged in May of 2008 with two cocaine trafficking offences. He was alleged to have been part of a large trafficking conspiracy. There were various delays in moving the case forward and, as it ultimately turned out, Mr. Richards’ trial in the Court of Queen’s Bench was not scheduled to begin until March of 2011. He brought a Charter application and argued that his s. 11(

b) rights had been denied. The judge agreed and ordered a stay of proceedings. [ 3 ] I conclude, for the reasons set out below, that the trial judge erred in his analysis. The stay of proceedings must be set aside and this matter remitted to the Court of Queen’s Bench for trial. II. Factual Background [ 4 ] The charges against Mr. Richards were the product of an investigation into the operations of a Prince Albert and area drug trafficking organization. The investigation began in 2006.

During its course, the police obtained 43 search warrants, intercepted audio data from 22 different telephone lines and pursued evidence in all four western provinces. [ 5 ] Based on the material collected by the police, the Crown’s theory was that Trevor Anderson had operated a criminal organization which brought cocaine and marihuana at the multi-pound level into Prince Albert. The Crown also believed that Mr. Richards, as part of the criminal organization, took directions from Mr.

Anderson and was significantly involved in the distribution of drugs, primarily as a street-level dealer. [ 6 ] On May 20, 2008, Mr. Richards was arrested and charged with (

a) trafficking cocaine for the benefit of, or at the direction of or in association with, a criminal organization and (

b) conspiring to traffic in cocaine: Trevor Anderson, date of birth; May 17, 1977, of Prince Albert Saskatchewan; Jason Roland Ingram, date of birth: October 7, 1978, of Prince Albert Saskatchewan; John Mark Earby, date of birth: July 15, 1982, of Prince Albert, Saskatchewan; Tanner Beaven, date of birth: August 20, 1985, of Prince Albert, Saskatchewan; Evan Richards, date of birth: August 3, 1983, of Prince Albert, Saskatchewan; Jared Kirby, date of birth: October 7, 1976, of Prince Albert, Saskatchewan, between the 24 th day of May A.D. 2007 and the 28 th day of August A.D. 2007 at or near the City of Prince Albert in the Province of Saskatchewan, and elsewhere in Canada, did: Count # 1: commit the indictable offences of trafficking in a controlled substance, to wit: Cocaine, contrary to Section 5(1) of the Controlled Drugs and Substances Act, for the benefit of or at the direction of or in association with, a criminal organization of at least three of the following persons: Trevor Anderson, Jason Roland Ingram, John Mark Earby, Tanner Beaven, Evan Richards, Jared Kirby or others, contrary to

Section 467.12 of the Criminal Code . Count # 2:

unlawfully conspire together, the one with the other or others of them, and with person or persons unknown or unnamed to commit the indictable offence of trafficking in a controlled substance included in

Schedule I, to wit: Cocaine, contrary to Section 5(1) of the Controlled Drugs and Substances Act and Section 465(1) (

c) of the Criminal Code . [ 7 ] Mr. Richards’ pled “not guilty” on May 22, 2008 and was released on conditions. His counsel took the initiative to contact the Crown. There followed a number of court appearances and related adjournments apparently involving sometimes as many as eleven lawyers representing the various co-accused. The adjournments were noted in the Provincial Court record as being “at the request of the defence”. [ 8 ] The Crown primarily fulfilled its disclosure obligations on August 5, 2008 by way of providing defence counsel with a portable hard drive.

It contained the notes made by 161 different police officers and transcripts of intercepted communications from 22 phone lines. There were over 4,000 separate documents totalling between 30,000 and 40,000 pages. [ 9 ] The proceedings were adjourned on August 29 and October 3, 2008, at Mr. Richards’ request. The Provincial Court file indicates that the Crown and Mr. Richards’ counsel were in contact with each other and, at least to some extent and in some fashion, were discussing the file. [ 10 ] On November 10, 2008, Mr.

Richards’ counsel sent a letter to the Crown reading, in relevant part, as follows: From our perspective if we cannot resolve this matter, we want to set the matter down for an early prelim date and move forward. The phone calls are very time consuming and have little applicability to our situation. We understand there are issues, the issues being expressed by other counsel may not be ours. I respect the fact that the Court wants to coordinate matters, but at some point they also want to move forward.

We are not waiving any time delays nor our rights under the Charter for delay in prosecution. [ 11 ] There were further adjournments on November 27, and December 11, 2008 and January 22, 2009. According to the Provincial Court file, these were at Mr. Richards’ request. (The adjournment on November 27 was “Peremptory on Crown Prosecutor to be personally present.”) [ 12 ] On January 29, 2009, the Crown responded to the concerns reflected in the letter sent by Mr.

Richards’ counsel by staying the original charges against him and Tanner Beaven, splitting the two of them off from the main body of the alleged co-conspirators, and effectively re-laying the original charges as follows: TANNER BEAVEN [D.O.B.: 1985-August-20] of Prince Albert, Saskatchewan; EVAN RICHARDS [D.O.B.: 1983-August-03] of Prince Albert, Saskatchewan Count #1: Between the 24 th day of May A.D. 2007 and the 28 th day of August A.D. 2007 at or near the City of Prince Albert in the Province of Saskatchewan, and elsewhere, did commit the indictable offences of trafficking in a controlled substance, to wit: cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act , for the benefit of or at the direction of or in association with, a criminal organization of at least three of the following persons: themselves, Trevor Anderson, Jason Roland Ingram, John Earby and Jared Kirby or others contrary to s. 467.12 of the Criminal Code .

Count #2: Between the 24 th day of May A.D. 2007 and the 28 th day of August A.D. 2007 at or near the City of Prince Albert in the Province of Saskatchewan, and elsewhere, did unlawfully conspire together with Trevor Anderson, Jason Roland Ingram, John Earby and Jared Kirby the one with the other or others of them, and with person or persons unknown or unnamed commit the indictable offence of trafficking in a controlled substance included in

Schedule I, to wit: cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act and s. 465(1) (

c) of the Criminal Code . [ 13 ] Mr. Richards then elected trial by Queen’s Bench judge alone. A preliminary hearing was scheduled for the week of August 31, 2009. The week of June 15, 2009 had been available to the Crown but, according to the Provincial Court file, it was “declined by Defence.” Apparently Mr. Beaven’s counsel was not free at that time. [ 14 ] A conference was held on February 9, 2009 and, at it, Ferris P.C.J. set out a list of matters for each side to deal with in advance of the preliminary hearing.

The Provincial Court file reveals the following: Crown undertakes to provide a witness list within a month. Court wants a praecipe of what the witnesses are expected to say and an estimate of the time it will take for both direct and cross- examination. Crown and defence both to submit the time they anticipate it will take to examine the witnesses. Crown expects to call an expert witness in order to interpret drug language. Clerk to meet with Crown counsel in order to mark exhibits in advance of the preliminary hearing within two months from now.

Notices to be provided with and the time given in the Code. Mr. Zatlyn does not dispute the continuity of the evidence for the purpose of the preliminary hearing. After seeing the exhibit list Mr. Abrametz [Mr. Beaven’s counsel] to notify counsel which exhibits he requires the Crown to prove by May 31, 2009. Within 45 days of preliminary hearing, both defence counsel to give notice of any legal arguments to be brought forward at preliminary hearing. Crown seeking admissions from the defence as to what could be admitted for the purpose of the preliminary hearing within two months. Mr.

Richards to listen to the tapes at Mr. Zatlyn’s office. Crown to notify the Clerk within 60 days if there is any special equipment required for the preliminary hearing. Within 60 days Crown to notify the Court whether or not they will provide a transcript of the recordings to defence counsel. If transcripts are not provided, the defence counsel agrees to come back before the Court to resolve the issue. [ 15 ] At the end of July, 2009, Mr. Beaven’s counsel requested that the conference be reconvened because the Crown had failed to comply fully with its obligations under the order.

The Provincial Court file indicates that, on July 28, 2009, Ferris P.C.J. adjourned the proceedings to August 31, 2009 with the direction that “the Crown is to provide a complete list of what they’ve done to fulfil every directive that I gave in February and so are the defence”. [ 16 ] On August 31, 2009, the conference reconvened and the state of play with respect to preparation for the preliminary inquiry was reviewed. In a nutshell, it appears that the Crown had complied with the obligations imposed upon it by Ferris P.C.J.

However, significant parts of the relevant material had been provided to defence counsel in the courtroom and only moments before it was presented to the Court. This included, by way of example, a final witness list and a synopsis of the evidence expected from each witness. This apparently left defence counsel in a position where they needed some time to determine how they wanted to proceed. The Crown requested that a preliminary hearing be scheduled and suggested the intervening time would give defence counsel an adequate opportunity to prepare their positions.

Defence counsel, on the other hand, took the position that it was premature to commit to a new preliminary hearing date. The judge was not prepared to set a date and indicated that he wanted to hear comments from counsel once they had seen the material given to them by the Crown. A continuation of the conference was slated for October 28, 2009. On October 30, 2009, the preliminary inquiring was scheduled for April 21 and 22, 2010. [ 17 ] As the preliminary inquiry approached, Mr. Richards’ counsel signed a number of admissions but counsel for Mr. Beaven declined to do so.

This lead the Crown to opt for relying heavily on s. 540(9) of the Code (which allows evidence to be tendered by way of written statement rather than viva voce ) in order to keep the preliminary inquiry within the two days allotted for it and, thereby, to avoid a further adjournment. The inquiry began, and was completed, on April 21, 2010. Both Mr. Richards and Mr. Beaven were committed to stand trial. [ 18 ] A pre-trial conference was held on June 29, 2010. The trial was set for the first available dates, March 7 to 18, 2011. [ 19 ] Mr.

Beaven filed a certiorari application in the Court of Queen’s Bench on September 2, 2010 in an effort to quash his committal. When he was unsuccessful, he filed a notice of appeal to this Court. That happened on December 10, 2010. [ 20 ] In light of these developments, the Crown filed an indictment that severed Mr. Richards from Mr. Beaven. This was done on December 22, 2010 with a view to getting Mr. Richards’ to trial on the scheduled date of March 7, 2011. The new indictment read as follows: EVAN RICHARDS (DOB: August 03, 1983), of the City of Prince Albert in the Province of Saskatchewan stands charged: 1.

Between the 24 th day of May A.D. 2007 and the 28 th day of August A.D. 2007 at or near the City of Prince Albert in the Province of Saskatchewan, and elsewhere, did commit the indictable offences of trafficking in a controlled substance, to wit: cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act , for the benefit of or at the direction of or in association with, a criminal organization of at least three of the following persons: Trevor Anderson, Tanner Beaven, Jason Roland Ingram, John Earby and Jared Kirby or others, contrary to s. 467.12 of the Criminal Code ; 2.

Between the 24 th day of May A.D. 2007 and the 28 th day of August A.D. 2007 at or near the City of Prince Albert in the Province of Saskatchewan, and elsewhere, did unlawfully conspire together with Trevor Anderson, Tanner Beaven, Jason Roland Ingram, John Earby and Jared Kirby the one with the other or others of them, and with person or persons unknown or unnamed to commit the indictable offence of trafficking in a controlled substance included in

Schedule 1, to wit: cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act and s. 465(1) (

c) of the Criminal Code . III. The Queen’s Bench Decision [ 21 ] In February of 2011, Mr. Richards brought an application alleging that his rights under s. 11(

b) of the Charter had been infringed and that, as a result, the charges against him should be stayed. [ 22 ] I will deal with the particulars of the trial judge’s reasoning in the analysis which follows. For present purposes, let me say only that, in a decision now found at 2011 SKQB 106 , the judge began by setting out the governing legal framework and then examining (

a) the length of the delay, (

b) the waiver of delay, (

c) the reasons for delay and, (

d) the prejudice suffered by Mr. Richards as a result of thedelays. He concluded that there had been an unreasonable delay in bringing Mr. Richards to trial and ordered a stay of proceedingspursuant to s. 24(1) of the Charter. IV. Analysis [23] There is no dispute in this case about the legal framework governing the analysis of a s. 11(

b) issue. It is explained as follows in R.v. Morin, (SCC), [1992] 1 S.C.R. 771 at pp. 787-88: 31 The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

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

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused. [24] Accordingly, the first step in a s. 11(

b) analysis involves considering whether the delay in issue is sufficiently long to engage theissue of whether the accused’s rights may have been prejudiced. This is a threshold issue. See: R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45 at para. 43; R. v. Morin, supra, at p. 789. I note, parenthetically, that the Crown conceded the threshold hadbeen crossed in this case. [25] If the length of the delay warrants further inquiry, it is necessary to begin with the question of waiver.

This is so because anaccused person may waive a delay and any such time period must be backed out of the assessment of the reasonableness of the overalldelay from charge to trial. That said, to be effective, a waiver must be clear and unequivocal. There will be no waiver in circumstanceswhere the accused person’s agreement to a delay is “mere acquiescence to the inevitable”. See: R. v. MacDougall, supra, at para. 57; R.v. Morin, supra at p. 790. [26] Waiver may, in some cases, resolve the question of whether there has been a s. 11(

b) violation. If not, a court must then considerthe other explanations for the delay. They are four principle kinds of explanations. First, the Supreme Court has recognized that everyoffence has inherent time requirements which necessarily run time off the clock. The factors influencing the length of such delaysinclude the complexity of the case and whether there is a preliminary inquiry. Delay attributable to the inherent time requirements of acase is neutral and does not “count against the Crown or the accused in the s. 11(

b) reasonableness assessment.” See R. v. MacDougall,supra, at para. 44. [27] The second category of reasons for delay relates to the actions of the accused. Simply put, decisions taken by the accused whichfall short of waiver (for example, changes of solicitor) must nonetheless be taken into account in assessing the reasonableness of a delay. [28] Similarly, as a third category of explanation for delay, it may be necessary to consider the actions of the Crown which create delay.This would include, for example, requests for adjournments made by the Crown.

These sorts of actions are not necessarily blameworthy,but they cannot be relied upon by the Crown to explain away otherwise unreasonable delay. [29] The fourth type of delay is what the Supreme Court of Canada has termed “institutional delay”. It arises from the fact that a lack ofsystemic resources may cause accused persons to wait to have criminal charges resolved. [30] After working through the reasons for delay, the next step in the analysis involves considering the issue of prejudice to the accusedperson caused by the delay. This must be assessed on a case-by-case basis.

Prejudice can be inferred from prolonged delay. Further, anaccused person may lead evidence to show such things as restrictions to his or her liberty caused by pre-trial incarceration or bailconditions, ongoing stress or damage to reputation arising from extended exposure to the criminal process, prejudice to his or her abilityto mount an effective defence, and so forth. [31] In the end, deciding if s. 11(

b) has been violated in the circumstances of any particular proceeding involves consideration ofwhether the delay is unreasonable having regard not only to the interests s. 11(

b) protects but also to the reasons for the delay and theprejudice suffered by the accused because of the delay. In R. v. MacDougall, supra, McLachlin J. (as she then was) put it this way: 60 Whether delay in sentencing amounts to a violation of s. 11(

b) depends on whether the delay was unreasonable considering thelength of the delay, the reasons for the delay, the effect of any waivers of delay and the prejudice suffered by the accused.

See also: R. v. Morin, supra, at p. 788. A. Problems in the Approach of the Trial Judge [32] In my respectful view, the trial judge’s line of reasoning in this case involved some relatively significant errors. I will address eachof them in turn. [33] First, the judge misunderstood the notion of “institutional delay” and conflated it with inherent delay. Institutional delay, asexplained in R. v.

Morin at pp. 794-5, is “the period that starts to run when the parties are ready for trial but the system cannotaccommodate them”. (Obviously, there must be an analogue for preliminary inquiries.) On the other hand, “inherent delay” relates to thetime necessarily required to move a case forward. It is explained as follows in R. v. Morin at pp. 791-2: All offences have certain inherent time requirements which inevitably lead to delay. Just as the firetruck must get to the fire, so must acase be prepared. The complexity of the trial is one requirement which has often been mentioned.

All other factors being equal, the morecomplicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins. For example, afraud case may involve the analysis of many documents, some conspiracies may involve a large number of witnesses and other casesmay involve numerous intercepted communications which all must be transcribed and analyzed. The inherent requirements of such caseswill serve to excuse longer periods of delay than for cases which are less complex. Each case will bring its own set of facts which mustbe evaluated.

Account must also be taken of the fact that counsel for the prosecution and the defence cannot be expected to devote theirtime exclusively to one case. The amount of time that should be allowed counsel is well within the field of expertise of trial judges. [34] In dealing with institutional delay, the Supreme Court has recognized two obvious realities. On the one hand, public resources arefinite and there are practical limits to the number of judges and courtrooms that a community can afford. On the other hand, the fact thatthe state does not have unlimited funds cannot render s. 11(

b) entirely meaningless. In an effort to assist in the reconciliation of thesecompeting considerations, the Court has endorsed non-binding “guidelines” in relation to the length of tolerable institutional delay. Theyare explained as follows in R. v. Morin at pp. 798-9: In Askov [ (SCC), [1990] 2 S.C.R. 1199], Cory J., after reviewing comparative statistics suggested that a period in therange of 6 to 8 months between committal and trial would not be unreasonable.

Based on the foregoing, it is appropriate for this Court tosuggest a period of institutional delay of between 8 to 10 months as a guide to Provincial Courts. With respect to institutional delay aftercommittal for trial, I would not depart from the range of 6 to 8 months that was suggested in Askov. In such a case this institutional delaywould be in addition to the delay prior to committal. This reflects the fact that after committal the system must cope with a different courtwith its special resource problems.

It is therefore essential to take into account the inevitability of this additional institutional delay. [emphasis added] [35] In his decision, the trial judge treated these institutional delay guidelines as if they were yardsticks against which the total delay ingetting a case to trial should be measured to determine the reasonableness of the delay. For example, he said this at paras. 30, 34 and 35of his decision: 30 Under this heading [inherent time requirements], we again look to R. v. Morin where guidelines for inherent time requirementswere laid out.

From Morin we learn that a period of 14 to 18 months is not unreasonable to take a matter from charge to trial. This periodis made up of periods of eight to 10 months in the Provincial Court and a period of six to eight months after the committal for trial. . . . 34 In all, this matter was before the Provincial Court from May 20, 2008 until April 22, 2010, or 23 months.

This is well in excess ofthe guideline of eight to 10 months. 35 The pre-trial conference in the Court of Queen's Bench was on June 29, 2010 and the matter has only been in this court for justover eight months which is consistent with the time period for this court as set out in Morin. [36] It can be seen, therefore, that the trial judge’s analysis of the issues before him was based on a misunderstanding of Morin and theguidelines referred to in that decision.

That misunderstanding led him to use inappropriate reference points in determining thereasonableness of the delay in this case. [37] This misapprehension of the Morin guidelines flowed directly into the trial judge’s second error. It is that, in deciding whether thedelay in issue was unreasonable, the judge had no meaningful regard to the inherent delay in this case -- and by that I mean that he hadno regard to the notion of inherent delay properly understood. This is significant because, as noted above, inherent delay does not countagainst the Crown for purposes of a s. 11(

b) analysis. [38] The reality is that this was a complex prosecution. As indicated above, the police investigation spanned four provinces, includedthe tapping of 22 phone lines and the execution of 43 search warrants. Disclosure involved some 30,000 to 40,000 pages of material.Further, at least on the charges as they were originally laid, Mr. Richards stood charged with numerous co-accused. All of these factorsunavoidably combined to create a situation where matters moved more slowly than they would have moved in a more straightforwardprosecution.

I acknowledge that the trial judge did note, at para. 37 of his decision, that this case was “complex”. However, as I read hisdecision, he gave no effect to this reality in assessing the reasonableness of the delay in getting Mr. Richards’ charges to trial.

[39] The third problem with the trial judge’s decision concerns how he dealt with the delays arising directly from the actions of Mr.Richards’ co-accused. By way of background on this point, it will be recalled that: (

a) Mr. Richards was initially charged as a member ofa trafficking conspiracy involving several other people, (

b) apparently responding to Mr. Richards’ concerns, on January 29, 2009, theCrown stayed those charges as against him and Mr. Beaven, split those two men off from the larger group and laid new charges, and(

c) on December 22, 2010, the Crown severed Mr. Richards from Mr. Beaven and moved forward to trial. [40] In general terms, the trial judge appears to have concluded that the Crown acted improperly by failing to charge Mr. Richardsseparately from the other accused at the outset and/or by failing to sever him from all of the other accused in January of 2009. As aresult, in assessing the question of unreasonable delay, the judge effectively held the Crown to account for the delays caused by thecircumstances and tactical decisions of Mr.

Richards’ co-accused. [41] The trial judge’s approach is revealed in the following passages of his decision: 29 … While there were delays caused by factors including the lack of instructions and/or consent to issues by Mr. Beaven's counselleading up to the preliminary inquiry and Mr. Beaven's application and appeal of the decision of the application which served to delaymatters, these delays were not at the instance of Mr. Richards and therefore his application cannot be dismissed on such ground.Additionally, at times where Mr.

Richards consented to or sought adjournments, those requests may well have been because the Crownhad not at those times lived up to its obligations for disclosure and/or its undertakings from the pre-trial conference of February 9, 2009.Adjournments requested by defendants with disclosure and/or undertakings outstanding cannot be seen as a waiver by those parties. . . . 37 … Shortly thereafter on January 28, 2009, the Crown laid a fresh information naming just Mr. Richards and Mr. Beaven. TheCrown made a tactical decision to sever Beaven and Richards and run them together as opposed to separately.

In the end, that decisiondid not work out as Mr. Beaven and his counsel chose to take a more disruptive approach, which they were entitled to do, by not agreeingon matters to expedite the preliminary inquiry and bringing an application earlier on to quash the indictment, after the preliminaryinquiry. Had the Crown chosen to sever Mr. Richards from the balance of the co-accused in January of 2009, it is possible that Mr.Richards' matter may well have been resolved or have proceeded to trial before this date. … 44 Attempts were made early on and throughout this matter by Mr.

Zatlyn to expedite his client's matter possibly severing Mr.Richards from the others. Over time the Crown came to the same conclusion, but that was not ultimately until December 22, 2010 in anattempt to save the March 2011 trial dates. The Crown had the opportunity to sever Mr. Richards from all other accused when theysevered initially in January of 2009. While they cannot be faulted for attempting to move forward with Beaven and Richards together,they have an obligation (given the background with Mr.

Zatlyn's attempts to expedite his client's matters, culminating in his letter ofNovember 10, 2008), to monitor matters and not subject Mr. Richards to further unreasonable delay. [42] In my respectful view, this line of thinking ignores the principle that co-conspirators should be tried together so as to avoid theprospect of inconsistent verdicts and the expense, impositions on witnesses and other consequences of having a multiplicity ofproceedings. As Fish J. said in R. v.

Chow, 2005 SCC 24, [2005] 1 S.C.R. 384 at para. 47, “…[i]t is well established that separate trialsfor alleged co-conspirators are the exception, not the rule.” See also: R. v. Crawford, (SCC), [1995] 1 S.C.R. 858 atpara. 19. [43] This reality means that accused persons moving toward trial with co-accused will not always be in complete control of theproceedings. In other words, they will sometimes be affected by the circumstances and tactical choices of their co-accused. This is whathappened here.

The original proceedings, with a cast of multiple co-accused, necessarily moved more slowly than they would havemoved if there had been no alleged conspiracy. The Crown then split Mr. Richards and Mr. Beaven off from the others with a view tosimplifying matters and getting them to trial more quickly. As things turned out, Mr. Beaven’s counsel was not free for availablepreliminary inquiry dates during the week of June 15, 2009 -- a time when Mr. Richards’ counsel did have time in his calendar -- and thatproceeding was delayed as a result. Further, and as noted, Mr.

Beaven chose, as was his right, to take a more aggressive approach to hisdefence than did Mr. Richards. The trial judge found that this caused Mr. Richards to experience some further delays. [44] However, it does not follow from these facts that the delays arising from the co-accuseds’ approach to the case should be laid atthe feet of the Crown. The comments of the Court of Appeal of Alberta in R. v.

Koruz (1992), 1992 ABCA 144 , 72 C.C.C. (3d)353 at para. 83are instructive here: Moreover, if the suggestion is that every time a number of defendants are charged with conspiracy, the Crown should be required tosever charges if and when timing problems arise, the implications for prosecuting these kinds of cases could be profound. Although theright to trial within a reasonable time is an individual right, one cannot ignore the practicalities of what is involved in the Crown'sprosecution of a conspiracy case.

The mere fact that an accused has been charged with conspiracy does not confer upon him someinherent advantage in asserting a claim for a s. 11(

b) breach if and when one of, his co-defendants causes a delay in the proceedings. Tosuggest severance as a simple solution ignores the very real cost to the Crown and the public involved in prosecuting separate actions: R.v. McNamara (No. 1) (1981) (ON CA), 56 C.C.C. (2d) 193 (O.C.A.), affirmed (1985) (SCC), 19C.C.C. (3d) 1 (S.C.C.). In the end, this kind of approach will only serve to contribute to further delays in the administration of justice.Again, I do not disagree that there may well be cases where severance is in order.

But what is significant in the context of this case is thatnone of the defence counsel applied for severance on behalf of any of these defendants. They were free to do so: R. v. Cassidy andLetendre, (1963) (AB CA), 2 C.C.C. 219 (Alta. C.A.), leave to appeal to S.C.C. refused [1963] S.C.R. viii. They chosenot to take this step. [45] I would not want to be understood as saying that, as a matter of principle, the Crown’s decisions with respect to how charges arelaid in a case of this sort can never enter into the calculus of a s. 11(

b) problem. This is a question for another day. My point is simply

that the facts here do not take the analysis in that direction. [ 46 ] The fourth difficulty with the trial judge’s decision concerns the issue of waiver and, in particular, his treatment of the letter written on November 10, 2008 by Mr. Richards’ counsel. In that letter, counsel said “we are not waiving any time delays nor our rights under the Charter for delay in prosecution”. The trial judge placed a great deal of emphasis on this correspondence and appeared to see it as colouring the entire time line from the time charges were laid to trial.

For example, in the penultimate paragraph of his decision he wrote “while Mr. Richards' counsel consented to or perhaps even asked for some of the adjournments early on, one has to read it in light of the communications from [counsel] on November 10, 2008”. Earlier in the decision, the judge had made essentially the same point in these terms: 28 Here the Crown argues that on many of the endorsements from court appearances, adjournments are either requested by defendants or consented to by him or his counsel.

The Crown argues that the defence can be seen to be waiving certain time frames and where one defendant seeks an adjournment which affects another, that while it may not strictly be waiver, it may neutralize the effect of the adjournment in relation to accounting of time for delay. While there are many requests for adjournment by an accused or possibly this accused on this file, they must be read in light of the November 10, 2008 letter from Mr.

Richards' counsel to the Crown wherein he states, "We are not waiving any time delays nor our rights under the Charter for delay in prosecution." Counsel had been seeking to expedite his client's matter, possibly attempting to have his client dealt with separate from the group with whom he had been charged. This may have been a tactic and clearly does not colour all further activities by Mr. Zatlyn. However, there is other evidence from the file that Mr. Zatlyn was trying to expedite matters on behalf of his client. During negotiations over the preliminary inquiry and how long that might take, Mr.

Zatlyn was more than prepared to make admissions for the purposes of expediting evidence and shortening the preliminary inquiry to move it along. [ 47 ] It is clear enough that, speaking generally, Mr. Richards’ counsel was hoping to move Mr. Richards’ charges forward in an expedited and cost-efficient manner. However, it seems unreasonable that, by writing the November 10, 2008 letter, counsel should be taken to have, in effect, immunized all of Mr. Richards’ actions from a detailed s. 11(

b) review. I need not sort out the particulars of all of this because, at the end of the day, it is not the determining aspect of this appeal. Rather, I will simply note that some of the steps taken by Mr. Richards including, for example, his refusal to consider scheduling a new preliminary hearing date on August 31, 2009 and some of the adjournments made at his request, clearly warranted closer scrutiny than they were given. [ 48 ] In light of all of this I pause here, by way of

summary, to confirm that there are several significant problems with the trial judge’s s. 11(

b) analysis. Most notably, they were his misunderstanding of institutional delay, his failure to consider inherent delay and his treatment of delays caused by Mr. Richards’ co-accused. [ 49 ] Before determining the bottom line effect of those flaws, it is necessary to say a word about prejudice. The prejudice that Mr. Richards says he has suffered by virtue of the delay in moving his charges to trial has been largely economic.

He indicates that he lost his job at Spectrum Sound when he was charged (a function of the charges themselves, obviously, not the delay) and has since had to take lower paying work and been unable to start job training because of an inability to afford both his legal bills and tuition fees. Again, there is a question here about whether this is a function of the charges themselves or of the delay. Mr. Richards says that he has had to miss work on a weekly basis to report to his bail officer, has had to live with an 11:00 p.m. curfew and has been unable to visit family members who reside outside of the province.

He also states that the ongoing uncertainty of his situation has kept him from buying a house with his common law spouse. On the other hand, Mr. Richards has not been in custody. He has not been subject to overly onerous terms of release and he does not suggest that his ability to defend the charges has been compromised or affected by the delay. Nor does he suggest that ongoing stigmatization or damage to his reputation have resulted from the delay. [ 50 ] With all of this in mind, I turn to the issue of whether s. 11(

b) was violated in the circumstances of this case. There is no doubt that the proceedings did not move forward to trial as quickly as would have been desirable. The Crown does not contend otherwise. There can also be no doubt that the prosecutor’s failure or inability to follow through with preparation for the preliminary inquiry on a timely basis led to a delay of several months. Again, the Crown does not suggest anything to the contrary. However, none of this answers the s. 11(

b) question. The root issue here, as indicated above, is whether the overall delay was unreasonable considering its length, the reasons for it, the effect of any waivers and the prejudice suffered by Mr. Richards. [ 51 ] I conclude that there was no unreasonable delay in this sense. If the Morin guidelines are correctly understood and applied, if proper regard is had for the complexity of this case and if the delays caused by Mr. Richards’ co-accused are analysed in the appropriate light, the conclusion of the trial judge cannot be sustained.

In all of the circumstances here, thirty-three and a half months between the date charges were laid and the date of trial was not a delay which offended s. 11(

b) of the Charter . V. Conclusion [ 52 ] I conclude, for the reasons given above, that this appeal must be allowed. The stay of proceedings is set aside and this matter is remitted to the Court of Queen’s Bench for trial. DATED at the City of Regina, in the Province of Saskatchewan, this 11th day of December, A.D. 2012. “Richards J.A.” Richards J.A.

I concur. “Richards J.A.” for Vancise J.A. (as authorized) I concur. “Caldwell J.A.” Caldwell J.A.