Docket: CACR2068 Her Majesty the Queen Appellant - v. -, 2012 SKCA 61

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 61 Date: 20120604 Between: Docket: CACR2068 Her Majesty the Queen Appellant - and - Jessica Kayla Jackson Respondent Coram: Jackson, Caldwell & Herauf JJ.A. Counsel: Anthony B. Gerein, for the Crown No one appearing for the Respondent Appeal:

From: Provincial Court Heard: June 4, 2012 Disposition: Allowed Written Reasons: June 5, 2012 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Herauf Caldwell J.A. [ 1 ] The issue in this appeal is whether the trial judge erred in law when she dismissed the charges against Jessica Kayla Jackson for want of prosecution. No one appeared for Ms Jackson in this Court; however, we are satisfied, based on information provided by her former lawyer and the Crown, she is aware of the appeal scheduled for today.

We determined to proceed in her absence and we are satisfied she is not prejudiced by our doing so. [ 2 ] Ms Jackson stood charged with committing assault causing bodily harm, contrary to s. 267 (

b) of the Criminal Code , and theft under $5,000, contrary to s. 334 (

b) of the Criminal Code . She was remanded in custody until her charges came on for trial at 9:30 a.m. on September 28, 2011. However, for reasons which remain unknown, the Crown did not produce Ms Jackson until 11:45 a.m. Despite their efforts, neither the trial judge nor the prosecutor was able to ascertain the reason for the delay. Albeit she had some direct knowledge of the circu mstances of the delay, the trial judge then dismissed the charges for want of prosecution. [ 3 ] Relying on the reasons set forth in R. v. C.A.C. , 2008 SKCA 37 , 207 Sask.

R. 125, we find the trial judge erred in law because the disposition of this matter was without factual foundation and therefore resulted from an arbitrary exercise of judicial discretion. We are of the unanimous view that the appeal must be allowed and a new trial ordered. [ 4 ] Our granting of the Crown’s appeal in this matter is without prejudice to Ms Jackson’s right to make any application which may be available to her at law.