Docket: CACR2299 Sean R.G. Wilson Appellant - v. -, 2013 SKCA 128

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 128 Date: 2013-12-04 Between: Docket: CACR2299 Sean R.G. Wilson Appellant - and - Her Majesty the Queen Respondent Coram: Caldwell, Herauf and Whitmore JJ.A. Counsel: Mark Brayford, Q.C. and Brian Pfefferle, for the appellant Jerome A. Tholl, for the respondent Appeal: From: 2013 SKQB 137 Heard: September 16, 2013 Disposition: Dismissed Written Reasons: December 4, 2013

By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Mr. Justice Herauf The Honourable Mr. Justice Whitmore Caldwell J.A. [ 1 ] Sean R.G. Wilson appeals from the decision of the

summary conviction appeal court judge (indexed as: 2013 SKQB 137 ) upholding the decision of the trial judge (indexed as: 2011 SKPC 133 ), where the trial judge had concluded the delay in bringing this matter to trial was not unreasonable and had then found Mr. Wilson guilty of the offence of operating a motor vehicle while impaired by alcohol. The appeal is brought under s. 839 of the Criminal Code , R.S.C. 1985, c. C-46, which limits the grounds of appeal to questions of law alone. The appeal requires leave. [ 2 ] By way of brief background, Mr.

Wilson’s trial began more than 25 months after the Crown had charged him with operation of a motor vehicle while impaired and with care or control of a motor vehicle while having a blood-alcohol content over .08. As to errors, Mr. Wilson says the trial judge acted in excess of jurisdiction by hearing trial evidence before deciding his stay application under s. 11(

b) of the Charter , failed to find the 25-month delay was unreasonable, and should have had a reasonable doubt that Mr. Wilson was impaired by alcohol. Mr. Wilson says the appeal judge erred because he did not recognise these errors on the part of the trial judge. For its part, the Crown says the appeal judge did not err because the trial judge did not commit a jurisdictional error by conducting a trial on the merits before resolving the delay issue and the trial judge’s conclusion on the stay application is correct because Mr.

Wilson consented to, waived or caused most of the delay; moreover, the Crown says the trial judge’s finding of guilt beyond a reasonable doubt is supported by the evidence. [ 3 ] I have considered the submissions of the parties and I would grant leave to appeal but, in the result, I would dismiss the appeal. [ 4 ] Although this is primarily a delay case, the facts of Mr. Wilson’s arrest are relevant. The narrative begins on May 7, 2009, when a motorist in Saskatoon, who was eastbound on Circle Drive, noticed a truck driving erratically.

He saw the truck swerve back and forth within its lane, two to three feet at a time. He saw the truck nearly hit a boulevard. He then watched the truck make a late stop at a red traffic light and skid partially into the intersection. The motorist observed more swerving and he became concerned enough to call the Saskatoon Police Service about it. Thereafter, he followed the truck all the while reporting its progress to the police. [ 5 ] The truck exited Circle Drive towards 8 th Street and came to an abrupt stop before turning left onto 8 th Street, heading east.

The truck then proceeded down 8 th Street to McKercher Drive and then a ways down McKercher Drive until it turned off into a parking lot and stopped. The concerned motorist proceeded past the stopped truck before making a U-turn so he could continue to monitor it. [ 6 ] The police arrived. A police officer found Mr. Wilson seat-belted into the driver’s seat of his truck and asleep. The truck was running. The officer woke Mr. Wilson. She noted a faint odour of alcohol emanating from him and from the vehicle. When she had Mr.

Wilson exit his truck and walk to her patrol car, she observed that he walked slowly and had trouble with his coordination. She asked him for his driver’s licence but, after searching for a time, Mr. Wilson said he did not have his wallet with him. As she could see his wallet in his jacket pocket, the officer pulled it out and retrieved Mr. Wilson’s license. The officer noted a faint smell of alcohol when Mr. Wilson was in her patrol car. [ 7 ] The officer arrested Mr. Wilson for impaired care or control of a motor vehicle and read him his rights and warnings. Mr.

Wilson acknowledged he had consumed a couple of cans of beer earlier in the evening. Nevertheless, after talking with Mr. Wilson in her patrol car, the officer began to subjectively doubt her own initial assessment of his impairment so she demanded that he blow into a roadside approved screening device. Mr. Wilson cooperated. The ASD registered “fail”. A subsequent breath test would confirm Mr. Wilson’s blood-alcohol content was over .08. Mr.

Wilson was then charged with operation of a motor vehicle while impaired and care or control of a motor vehicle with a blood-alcohol content of over .08. [ 8 ] The trial on the merits occurred on June 27, 2011. At the outset, as 25 months had then elapsed since the date of his charges, Mr. Wilson sought to stay the proceedings against him for unreasonable delay, in violation of s. 11(

b) of the Charter . Mr. Wilson sought an immediate decision on this issue, but the trial judge said he would reserve his decision until the end of the trial. Nevertheless, the trial judge gave Mr. Wilson the choice of having the stay application heard before or after the trial. Mr. Wilson chose to argue the application after the Crown had adduced its evidence in the trial. Mr. Wilson called no evidence in the trial. [ 9 ] When the s. 11(

b) application came on for hearing at the end of the trial, the trial judge considered five distinct post-arrest timeframes demarked by the following relevant procedural events: (

a) May 7, 2009 to June 15, 2009 (1.2 months): During this time, “[Mr. Wilson] was arrested, disclosure requested very promptly and provided, and [he] entered his plea.” (at para. 20) • The trial judge characterized this as 1.2 months of “institutional delay”. (

b) June 16, 2009 to December 16, 2009 (six months): Mr. Wilson and the Crown agreed to an April 22, 2010 trial date; however, the record does not indicate what discussion, if any, occurred in the setting of this date. The trial court’s endorsement on the file indicates

that Mr. Wilson had not waived delay. • The trial judge characterized this as six months of “institutional delay”. (

c) December 17, 2009 to April 22, 2010 (four months): On December 16, 2009, Mr. Wilson requested an adjournment of his April 22,2010 trial date due to conflict with a personal commitment on the part of his counsel. Mr. Wilson waived the resulting delay; however, itis not clear whether he did so beginning on December 17, 2009 (i.e., the date he requested the adjournment) or on April 22, 2010 (i.e.,the original trial date). The trial was rescheduled for November 1, 2010. • The trial judge characterized this as four months of “institutional delay”. He was unsure whether Mr.

Wilson had waived theresulting delay, but he was of the opinion the ambiguity should be resolved in favour of Mr. Wilson. The trial judge also said he wantedto encourage all Crown and defence counsel to make early requests for adjournments instead of showing up on the scheduled trial date torequest an adjournment. (

d) April 23, 2010 to November 1, 2010 (6.2 months): This is the period between the initial trial date and the second scheduled trialdate. • The delay during this 6.2 month period was, without dispute, waived by Mr. Wilson. The trial judge attributed the delay toMr. Wilson. (

e) November 2, 2010 to June 27, 2011 (7.8 months): Shortly before the November 1, 2010 trial date, the Crown received additionaldisclosure from the police, which consisted of a written statement by the motorist who had observed the erratic driving and a report froma police officer who had been present at the arrest but who was not the arresting officer. The Crown conceded this new material shouldhave been disclosed earlier but disputed the need for another adjournment. Regardless, a new trial date was set for June 27, 2011.

Itappears from the record the trial court had offered earlier dates and the Crown had, later, done the same. The reasonableness of thesedates became a matter of some dispute, but the trial judge found that “[t]he Crown made reasonable attempts to bring the matter to trialsooner; defence counsel would have none of it.” (at para. 49) • The trial judge found the second adjournment had been necessary due to the Crown’s failure to disclose, but that the Crown hadtaken reasonable steps to minimize the delay, while Mr. Wilson had been uninterested in earlier trial dates.

The trial judge thereforeattributed five months of the resulting delay to the Crown and 2.8 months to Mr. Wilson. [10] All told, the trial judge attributed 11.2 months of the 25-month delay to “institutional delay”, nine months to Mr. Wilson (6.2months of which was waived time), and five months to the Crown. To the trial judge, the total delay was long enough to presume someprejudice but, since no actual prejudice had been shown, he did not consider the institutional and Crown delay to be unreasonable in thecircumstances. The trial judge then dismissed Mr.

Wilson’s application for a stay of proceedings and turned to consider his verdict. [11] Since the trial judge had excluded the Crown’s evidence of the roadside ASD demand (because it had not been made forthwith andbecause Mr. Wilson was then already under arrest) and had excluded the Certificates of Analyses resulting from the breath tests at thepolice station (as they had not been obtained within a reasonable time), he lacked the evidence to convict Mr.

Wilson on the .08 charge.The trial judge nevertheless found the evidence of the concerned motorist, who had testified, and the arresting officer who had testifiedsufficient to prove Mr. Wilson’s impairment by alcohol beyond a reasonable doubt. The trial judge was similarly confident Mr. Wilsonhad operated a motor vehicle, which had been a significant issue at trial. The trial judge therefore convicted Mr. Wilson of operation of amotor vehicle while impaired by alcohol. Mr. Wilson appealed from this

summary conviction. [12] On appeal to the Court of Queen’s Bench, as the

summary conviction appeal court, Mr. Wilson raised seven issues which theappeal judge summarised as being three: (

a) Whether the trial judge had erred by waiting until after the trial on the merits to consider the stay application under s. 11(

b) of theCharter. (

b) Whether the trial judge had erred in concluding the delay was not unreasonable. (

c) Whether the trial judge had erred in concluding there was sufficient evidence to find Mr. Wilson guilty of driving whileimpaired by alcohol. [13] In each case, the appeal judge found the trial judge had not erred and he dismissed Mr. Wilson’s appeal. Mr. Wilson now appealsfrom the appeal judge’s decision to uphold the trial judge on each of the foregoing issues. [14] With that background, I turn to consider the first issue, which is one of procedure.

To summarise, the appeal judge found the trialjudge had not exceeded his jurisdiction in conducting the trial as he did by deferring his decision on the stay application. The appealjudge reasoned that, as Mr. Wilson had chosen not to call evidence, he could not be heard to complain that his right to make full answerand defence had been infringed by the delay in addressing the s. 11(

b) application. [15] In this Court Mr. Wilson again submits it was an error on the part of the trial judge to refuse to decide the s. 11(

b) Charterapplication until after the trial on the merits. He says this for two reasons: first, because unreasonable delay causes the court to losejurisdiction; and, second, because postponing the decision deprives an accused of knowledge of the case to meet, thereby infringing theaccused’s right to make full answer and defence. In the latter respect, he relies heavily on R. v. Underwood, (SCC),[1998] 1 S.C.R. 77, where the Supreme Court of Canada said a court must decide an accused’s Corbett application (addressing the extentto which an accused’s criminal record is admissible) [R. v.

Corbett, (SCC), [1988] 1 S.C.R. 670] before the court mayput the accused to elect whether to testify. [16] In its response, the Crown says there is no legal support for the proposition that a court loses jurisdiction to conduct a trial on themerits as soon as the accused brings an application for a stay under s. 11(

b) of the Charter. Rather, the Crown says, the jurisprudence

indicates that courts have discretion to determine how the trial will proceed. As to R. v. Underwood, the Crown says the case is notrelevant because in this case Mr. Wilson knew the Crown’s case against him when he elected not to call any evidence. [17] In considering the first sub-issue, I find some support in the case law for the proposition that delay which violates s. 11(

b) of theCharter operates to deprive the courts of jurisdiction; however, I find that that analysis has been used only to support the corollary that astay is the minimal remedy for the violation. For example, in R. v. Rahey, (SCC), [1987] 1 S.C.R. 588, Lamer J. (as hethen was) speaking for himself and Dickson C.J. (Estey and Wilson JJ. concurring under separate reasons) said this at pp. 614-15: Now to turn to the remedy. Again in Mills [ (SCC), [1986] 1 S.C.R. 863], I have explained why a stay is the minimalremedy.

If an accused has the constitutional right to be tried within a reasonable time, he has the right not to be tried beyond that point intime, and no court has jurisdiction to try him or order that he be tried in violation of that right. After the passage of an unreasonableperiod of time, no trial, not even the fairest possible trial, is permissible. To allow a trial to proceed after such a finding would be toparticipate in a further violation of the Charter. In Barker v.

Wingo, [407 U.S. 514 (1972)], Powell J. wrote, at p. 522: The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has beendeprived. This is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free,without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possibleremedy. Burger C.J. later wrote in Strunk v.

United States, 412 U.S. 434 (1973), at p. 440, “In light of the policies which underlie the right to aspeedy trial, dismissal must remain, as [Powell J. in] Barker noted, ‘the only possible remedy’”. The same is true, in my view, under s.11(b), in that a trial cannot be allowed to proceed subsequent to a finding that a violation has occurred. I am also in substantial agreement, however, with the following passage of Martin J.A. in Re Regina and Beason (1983), (ON CA), 7 C.C.C. (3d) 20 (Ont.

C.A.), at p. 43: In my opinion there may well be cases where, balancing all the various factors, . . . it will be apparent that the point is being approached,although it has not yet been reached, when any significant continuation of the delay in the trial of an accused person will result in anabridgment of his constitutional right to be tried within a reasonable time. In those circumstances the court, in the exercise of its inherentpower to control its own process, may direct that the trial proceed at an early date and dismiss the charge if the Crown fails to proceedon that date.

It is, in other words, open to the courts to take preventive measures, based on their inherent power to control their process, prior to anactual violation of s.11(b). Where, however, on balancing the various factors, the court decides that the accused’s right to be tried withina reasonable time has already been contravened, a stay of proceedings will be the appropriate remedy. It is not necessarily the onlyremedy, for additional remedies may be just and appropriate in the circumstances of the case.

The stay is a minimum remedy, to whichothers may be added, such as, possibly, damages, if it be proved that there was malice on the part of the Crown and resulting prejudice. Given Glube C.J.T.D.’s dismissal of the charges in this case, I think something should be added as regards acquitting an accused. Therewill be cases where an accused will be entitled to more than a stay and where the appropriate remedy will be an acquittal. This point hasnot been raised in this Court or in any of the courts below and, in my view, as little as possible should be said on the point in this case.However, this much might be said.

If an accused chooses, as in this case, to challenge the process before the end of the trial under s.11(

b) of the Charter, he or she then elects to put a definitive but premature end to the process instead of a final determination of the issueof guilt or innocence. In such a case, the proper remedy is, in my respectful view, a stay. [emphasisadded] [18] Although Lamer J. spoke in terms of not allowing a trial to proceed, he did so in the context of an extant finding of unreasonabledelay. His reasons in R. v. Rahey certainly contemplate a scenario where a trial might continue after an allegation of unreasonable delay.In any event, the case law does not suggest that the loss of jurisdiction, if that is what occurs, is of such immediate effect that a courtmust, anytime s. 11(

b) is raised and without further delay, decide whether it has jurisdiction to proceed. This would be an unwieldy andimprudent requirement in practice. [19] In this respect, the later decision in R. v. DeSousa, (SCC), [1992] 2 S.C.R. 944, is of assistance because Sopinka J.,there speaking for a unanimous Court, said this (at pp. 953-954): With rare exceptions that do not apply here a trial judge is empowered to reserve on any application until the end of the case.

He or sheis not obliged, therefore, to rule on a motion to quash for invalidity of the indictment until the end of the case after the evidence has beenheard. The decision whether to rule on the application or reserve until the end of the case is a discretionary one to be exercised havingregard to two policy considerations. The first is that criminal proceedings should not be fragmented by interlocutory proceedings whichtake on a life of their own. This policy is the basis of the rule against interlocutory appeals in criminal matters. (See R. v.

Mills, (SCC), [1986] 1 S.C.R. 863, 52 C.R. (3d) 481, 29 D.L.R. (4th) 161, 21 C.R.R. 76, 67 N.R. 241, 16 O.A.C. 81). The second,which relates to constitutional challenges, discourages adjudication of constitutional issues without a factual foundation. See, forinstance, Moysa v. Alberta (Labour Relations Board), (SCC), [1989] 1 S.C.R. 1572, 67 Alta. L.R. (2d) 193, 34 C.P.C. (2d) 97, [1989] 4 W.W.R. 596, 97 A.R. 368, 89 C.L.L.C. 14,028, 40 C.R.R. 197, 60 D.L.R. (4th) 1, 96 N.R. 70, and Danson v.

Ontario(Attorney General), (SCC), [1990] 2 S.C.R. 1086, 43 C.P.C. (2d) 165, 112 N.R. 362, 50 C.R.R. 59, 41 O.A.C. 250, (sub nom R. v. Danson) 73 D.L.R. (4th) 686. Both these policies favour disposition of applications at the end of the case. In exercising thediscretion to which I have referred the trial judge should not depart from these policies unless there is a strong reason for so doing. Insome cases the interests of justice necessitate an immediate decision. Examples of such necessitous circumstances include cases in whichthe trial court itself is implicated in a constitutional violation as in R. v.

Rahey, (SCC), [1987] 1 S.C.R. 588, 57 C.R. (3d) 289, 75 N.R. 81, 78 N.S.R. (2d) 183, 193 A.P.R. 183, 33 C.C.C. (3d) 289, 39 D.L.R. (4th) 481, 33 C.R.R. 275, or where substantial on-going constitutional violations require immediate attention as in R. v. Gamble, (SCC), [1988] 2 S.C.R. 595, 66 C.R. (3d)193, 45 C.C.C. (3d) 204, 89 N.R. 161, 31 O.A.C. 81, 37 C.R.R. 1. Moreover, in some cases it will save time to decide constitutionalquestions before proceeding to trial on the evidence. An apparently meritorious Charter challenge to the law under which the accused is

charged, which is not dependent on facts to be elicited during the trial, may come within this exception to the general rule. (SeeMetropolitan Stores (MTS) Ltd. v. Manitoba Food & Commercial Workers, Local 832, (sub nom. Manitoba (Attorney General) v.Metropolitan Stores Ltd.) (SCC), [1987] 1 S.C.R. 110, (sub nom. Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.) 87 C.L.L.C. 14,015, [1987] 3 W.W.R. 1, 38 D.L.R. (4th) 321, (sub nom. Metropolitan Stores (MTS) Ltd. v. Manitoba Food& Commercial Workers, Local 832) 73 N.R. 341, 18 C.P.C. (2d) 273, 46 Man. R. (2d) 241, 25 Admin. L.R. 20, (sub nom.

Manitoba(Procureur general) et Metropolitan Stores (MTS) Ltd.) [1987] D.L.Q.235 (headnote only), at p. 133 [S.C.R.].) This applies with addedforce when the trial is expected to be of considerable duration. See, for example, Canada v. Pharmaceutical Society (Nova Scotia) (July 9, 1992), Doc. 22473 (S.C.C.) [now reported (1992), (SCC), 15 C.R. (4th) 1, (sub nom. R. v. Nova Scotia Pharmaceutical Society) 43 C.P.R. (3d) 1, 93 D.L.R. (4th) 36, 74 C.C.C. (3d) 289, 10 C.R.R. (2d) 34, (sub nom. R. v. Nova ScotiaPharmaceutical Society (No. 2)) 139 N.R. 241 (S.C.C.)]. [emphasis added] [20] While the circumstances in R. v.

DeSousa obviously differ from this case, Sopinka J.’s comments do lend weight to the Crown’sposition on this issue. As do his later comments, when speaking for the majority (La Forest, L’Heureux-Dubé, Gonthier and McLachlinJJ. concurred in the result but under separate reasons) in R. v. La, (SCC), [1997] 2 S.C.R. 680, at para 27, to the effectthat a trial judge has the discretion to decide an application for a stay immediately or after trial on the merits; but, again, the case is notdirectly on point. See also the contextually relevant comments of the Manitoba Court of Appeal in R. v.

Byron, 2001 MBCA 81, [2001] 8W.W.R. 3, where Steel J.A. wrote: 24 A trial judge has a great deal of discretion in the conduct of any trial, including the timing of the hearing and disposition of anymotions. A trial judge must be able to control the trial proceedings so as to ensure fairness to all concerned and to preserve the integrityof the trial process. It is not the intention of this judgment to add any procedural strait jackets to that discretion. There is no singleprocedure that must always be employed in resolving applications under s. 24(1) of the Charter.

"Accepting that this court cannotanticipate every eventuality, I would prefer to leave the resolution of how to proceed in a particular case to the good sense of counsel andthe discretion of the trial judge." (R. v. Kutynec (1992), (ON CA), 70 C.C.C. (3d) 289 at 303 (Ont. C.A.) and see alsoR. v. L. (W.K.), (SCC), [1991] 1 S.C.R. 1091, per Stevenson J. at 1130.) [21] Finally, although not in specific reference to s. 11(b), see this Court’s decision in R. v. Salisbury, 2012 SKCA 32, 385 Sask.

R. 322,where Lane J.A. said: [14] It is necessary for the Court to simply clarify there is no set procedure for the determination of Charter violations and relevantremedies. The appropriate procedure and process will depend on the particular circumstances of the case taking into account all of therelevant factors. There will be situations where a Charter breach needs to be dealt with immediately and in other situations redress canwait until matters are adjudicated at trial. There are no hard and fast rules, nor would it be possible to set such rules.

The determination ofthe appropriate procedure is within the discretion of the trial judge and, assuming the discretion is properly exercised, deference will beaccorded. [22] It serves no purpose to restate what Lane J.A. said very clearly in R. v. Salisbury; which is to say that, in the result, while there mayhave been reason to determine Mr. Wilson’s stay application before trial, the trial judge’s decision to hold the matter in abeyance untilthe conclusion of the trial was within his discretion and is to be accorded the deference which the appeal judge properly gave it (at para.30).

In sum, I find no reversible error in the appeal judge’s decision in this respect. [23] As I will briefly explain, the second wing of this ground of appeal, in respect of the “case to meet” argument, must also fail. I findno error in the appeal judge’s conclusion that the procedure adopted by the trial judge with respect to the stay application had nosubstantive impact on the conduct of Mr. Wilson’s defence. I find R. v. Underwood of little assistance in these circumstances.

I say thisbecause the extent to which an accused may be cross-examined regarding his criminal record, which was at issue in that case, willobviously and significantly affect the accused’s decision on whether to take the stand and testify; but that circumstance is not comparableto those at hand. Here, Mr. Wilson submits the trial judge’s choice of procedure forced Mr. Wilson to decide whether to call onexpensive, out-of-province experts without knowing whether their evidence would be necessary.

However, this rings hollow because Mr.Wilson’s trial was held in a single day and so, presumably, he either had his experts lined-up in the hallway ready to testify or he haddecided to forego their expertise before he initiated his Charter challenge, either that or he was willing to risk it all on a late-in-the-dayadjournment request. Regardless, his decision not to testify and not to call evidence was entirely voluntary and fully-informed. As such,even if I accept that the procedure adopted by the trial judge presented Mr.

Wilson with a choice which could have been financiallyburdensome to him (had he actually had experts ready and available to testify at trial), the procedure did not put Mr. Wilson’s chosentrial strategy in question, as was the case in R. v. Underwood. Moreover, I have a fundamental difficulty associating a financial hardshipwith an enumerated or analogous Charter right. Indeed, much of Mr. Wilson’s argument in this respect seems focused on the generalunfairness of the situation rather than any constitutionally relevant prejudice befalling him. And so, since Mr.

Wilson knew the nature ofthe case against him and the evidence to be adduced by the Crown, I find myself in agreement with the appeal judge’s conclusion, whichhe succinctly put as: [33] It is suggested that the accused was not able to make full answer and defence. I reject this suggestion for the reason that at theconclusion of the Crown’s case an opportunity was given to the accused to call evidence. The accused decided not to do so.

He cannotnow be heard to complain. … [24] With that I turn to the second question arising in this appeal: Did the appeal judge err in concluding that the trial judge had noterred in finding no unreasonable delay in this case? To summarise, the appeal judge found the pre-trial timeline outlined by the trialjudge was accurate and, while he expressed some reservation about the trial judge’s attribution of at least one period of delay, the appealjudge found no errors of attribution.

The appeal judge considered the trial judge’s analysis of the matter to be detailed and cogent andthat the trial judge’s ultimate assessment of the balancing of the interests of Mr. Wilson, the Crown and society was reasonable. [25] Nevertheless, Mr. Wilson submits the courts below erred in not resolving the balancing stage of the analysis called for under s.11(

b) of the Charter in his favour. However, he does not dispute the trial judge’s attribution of any of the delay. For its part, the Crown

alleges a number of errors in Mr. Wilson’s favour in the trial judge’s calculation of the delay. It says: (

i) much of the time attributed toinstitutional delay should not be counted at all, (ii) Mr. Wilson deliberately waived all of the delay between December 16, 2009 andNovember 1, 2010, and (iii) the delay resulting from the second adjournment is properly attributed entirely to Mr. Wilson. [26] I begin by confirming that both the appeal judge and the trial judge correctly identified the legal framework for considering anallegation of unreasonable delay in violation of s. 11(

b) of the Charter, as was set out by Sopinka J. in R. v. Morin, (SCC), [1992] 1 S.C.R. 771 at pp. 787-788, and affirmed in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45, R. v. Collins; R. v. Pelfrey, (SCC), [1995] 2 S.C.R. 1104, and others (see alsoR. v. Richards, 2012 SKCA 120, [2013] 2 W.W.R. 637, R. v. Pidskalny, 2013 SKCA 74, 299 C.C.C. (3d) 396, and R. v. Walker, 2013SKCA 95). The R. v. Morin factors are: (

a) The length of the delay – This is a threshold issue. The question is whether the overall length of time between arrest and trial isprima facie sufficient to trigger Charter scrutiny (R. v. Morin, at p. 789; and R. v. MacDougall, at para. 43). (

b) The waiver of time periods – Periods of delay which have been voluntarily waived by an accused who has full knowledge of theconsequences of waiver are factored out of the overall length of delay under the s. 11(

b) analysis (R. v. Morin, at p. 790; and R. v.Richards, at para. 25; see also: R. v. Richard, (SCC), [1996] 3 S.C.R. 525, at para. 22). (

c) The reasons for the delay, including: (

i) the inherent time requirements of the case, such as the time involved with processing the charges, retaining counsel, pre-trialprocedures (bail applications, etc.), pre-trial conferences, police administrative work, Crown disclosure, counsel preparation, and, insome cases, a preliminary inquiry hearing, which do not count against the Crown or the accused (R. v.

MacDougall, at para. 44; and R. v.Richards, at para. 26); (ii) the actions of the accused, such as change of venue applications, changes of solicitor, challenges to search warrants, andadjournments (not amounting to waiver) which are directly attributable to the defence and which are voluntarily undertaken and,therefore, do not count toward the unreasonableness of the overall delay (R. v. MacDougall, at para. 48; and R. v.

Morin, at pp. 793-794); (iii) actions of the Crown, such as disclosure delays, change of venue applications, and adjournments which are directly attributable tothe Crown and, therefore, count against the Crown in the sense that they “cannot be relied upon by the Crown to explain away delay thatis otherwise unreasonable” (R. v. MacDougall, at paras. 49-52; and R. v.

Morin, at p. 794); and (iv) limits on institutional resources, meaning delays arising due to unavailability of funding, personnel or facilities for the properadministration of criminal justice, which counts against the Crown if the institutional or systemic delay is intolerable or is itselfunreasonable (R. v. MacDougall, at paras. 45 and 61; R. v. Morin, at pp. 794-800; and R. v. Richards, at para. 37). For matters inprovincial courts, as a base guideline, eight to ten months of institutional delay is considered tolerable (R. v. Morin, at p. 799). (

d) Other reasons for delay, which may include actions of the trial court itself (R. v. Morin, at p. 800, in reference to thecircumstances in R. v. Rahey). (

e) Prejudice to the accused, which may be inferred from the length of the delay itself or proven on evidence, but which may also benegated by the actions or conduct of the accused (R. v. Morin, at pp. 801-803). [27] The accused bears the burden of proof in establishing a breach of s. 11(

b) of the Charter on the basis of the R. v. Morin factors (R.v. Morin, at pp. 787-788). That is, Mr.

Wilson had to prove, on a balance of probabilities, that in his case the particular combination ofdelay attributable to the Crown and any intolerable institutional delay had so unreasonably delayed the criminal justice process beyondits inherent time requirements that he had suffered prejudices resulting from that delay (but not the charges) which, together with hisliberty and security of the person interests and his right to make full answer and defence, outweighed the interests of the Crown andsociety in seeing that justice is done fairly, quickly and efficiently (R. v.

Askov, (SCC), [1990] 2 S.C.R. 1199, at pp.1219-1223). [28] In this respect, I find no error in the appeal judge’s assessment of the trial judge’s conclusion that Mr. Wilson had failed to meet theburden imposed on him. I will explain. [29] As the relevant period here exceeded 25 months, the threshold had been surpassed because a delay of that duration is sufficient toraise the question of whether Mr. Wilson’s s. 11(

b) rights may have been infringed. [30] At step two, the trial judge found Mr. Wilson had waived at least 6.2 months of delay; however, he attributed this time to Mr.Wilson, which is not correct technically. Waived time is deducted from the overall total delay and not counted at all (R. v. Morin, at p.790; and R. v. Richards, at para. 25). While the Crown has alleged an error in the trial judge’s attribution of time to waived delay, sayingthe whole of the 10.5 months of delay between Mr.

Wilson’s adjournment request and the date of the rescheduled trial is properly laid athis feet, it is clear from the jurisprudence that waiver must be voluntary and the holder must have full knowledge of the consequences ofthat waiver (see, for example, R. v. Richard, at para. 22). Although the appeal judge did not directly address this point, the trial judge’sreasons indicate that the evidence was unclear or ambiguous as to whether Mr.

Wilson had truly waived 4.3 months of the delay resultingfrom the initial adjournment request and, in those circumstances, the trial judge was not prepared to re-characterise that time as waiveddelay (he had earlier characterised it as “institutional delay”). I can find no error in this part of his reasoning on that point.

That leaves19.2 months of overall delay to be considered. [31] Of that 19.2 months, the trial judge found the initial 1.2 months of “intake requirements” was reasonable “institutional delay”,which is technically incorrect as it is properly characterised as “inherent delay”, but it is nevertheless still of a reasonable duration. Iwould note, however, that the trial judge conflated “inherent delay” and “institutional delay” throughout his reasons. Although little turnson that misunderstanding in this case, it is important to note, as Richards J.A. (now C.J.S.) said in R. v.

Richards (at para. 33),“[i]nstitutional delay… is ‘the period that starts to run when the parties are ready for trial but the system cannot accommodate them’ …

‘inherent delay’ relates to the time necessarily required to move a case forward.” [Emphasis added.] If only for the sake of correctness then, I would re-characterise the ten month period from June 16, 2009 to April 22, 2010 as “inherent delay”. Given the earlier attribution to waived delay (10.5 months less 6.2 months waived = 4.3 months of inherent delay), that leaves 13.7 months of delay to consider ( i.e. , 19.2 – (1.2 + 4.3) = 13.7). [ 32 ] As they are intertwined in this case, I will address the import of the respective actions of the Crown and Mr. Wilson together.

As the appeal judge noted, a nearly eight-month adjournment resulted from the Crown’s failure to provide full and timely disclosure, which the trial judge found was adequately explained by a clerical error committed by the Saskatoon Police Service. Of this delay, the trial judge attributed five months to the actions of the Crown as, notwithstanding the adequate explanation, the adjournment could be laid squarely at its feet, but attributed nearly three months (two months and 27 days) to Mr. Wilson as his counsel was not in a position to take advantage of earlier trial dates proposed by the Crown.

The appeal judge had concerns with the latter of these attributions, but did not find it to be erroneous. Before us on appeal, the Crown sought to introduce fresh evidence as to the content of the late disclosure to bolster its contention that the adjournment was unnecessary and therefore that the five months of delay ought not be attributed to the Crown. This would seem a rather late in the day challenge to the necessity of an adjournment and the judge’s decision to grant it.

Regardless, even with the fresh evidence admitted, I find no reversible error in the trial judge’s attribution of the delay resulting from the late disclosure. So, on the analysis so far, five months of delay may be counted against the Crown and nearly three months against Mr. Wilson; however, a delay of 5.9 months remains unaddressed. [ 33 ] By simple deduction, the trial judge must be taken to have intended to attribute the remaining 5.9 months to “institutional delay”, although it could also be considered “inherent delay”, for there were no other reasons for delay and no other categories remain.

As noted, for matters in provincial courts, a base guideline of eight to ten months institutional delay is considered tolerable ( R. v. Morin , at p. 799). The institutional delay in this matter is, therefore, reasonable and not counted against the Crown. [ 34 ] In the end then, a total of five months out of 25 months delay may be counted against the Crown. Although I have attributed the overall delay differently than the trial judge, he too laid five months of it at the feet of the Crown.

And, while he did not excuse it, it is noteworthy that the trial judge found the Crown had adequately explained the five months of delay which fell at its feet. [ 35 ] On that basis, I turn to consider the resulting prejudice to Mr. Wilson. In this respect, the trial judge found Mr. Wilson had failed to prove any more than minimal actual prejudice had resulted from the delay. The trial judge characterised the actual and presumed prejudice which had befallen Mr. Wilson in these brusque terms: [51] The accused has not been under any onerous conditions since his arrest in this matter.

The only evidence from the accused of any prejudicial effect of the delay is a statement that he “ha[s] found it very stressful waiting for [his] trial dates.” He has this in common with all other accused, save perhaps for certain persons who, one suspects, would be just as happy if their trial day never arrived. [52] In addition, some prejudice is to be presumed simply by the passage of time. [53] There is no indication that the accused’s right to a fair trial, to full answer and defence, was compromised by the delay. … [56] There is little prejudice arising from the delay.

The trial was able to proceed, with as far as I am aware all relevant evidence being tendered and the accused was not prejudiced in the fairness of his trial by the passage of time. The stress which he has undergone in awaiting his trial date is not to be discounted or ignored; at the same time, it is only one factor to be considered. He has not been under significant restrictions while awaiting trial. [ 36 ] As Richards J.A. (now C.J.S.) noted in R. v. Richards (at para. 50 ) with respect to the balancing called for under R. v.

Morin , “[t]he root issue here … is whether the overall delay was unreasonable considering its length, the reasons for it, the effect of any waivers and the prejudice suffered by [the accused].” Ultimately then, the trial judge found that the absolute delay in this case was reasonable chiefly, it seems, because it did not cause Mr. Wilson much, if any, prejudice. That is to say, to the trial judge, the presumed and actual prejudice resulting from the delay in this case did not outweigh the interests of society in having the charges against Mr. Wilson adjudicated on their merits.

The trial judge’s decision in this respect is entitled to appellate deference, but the appeal judge’s review of it is not. Nevertheless, I cannot conclude that the appeal judge erred when he found no reversible error in the trial judge’s decision. In my view, the institutional delay in this case is reasonable and the five months of delay which does count against the Crown does not give rise to a violation of s. 11(

b) of the Charter . I would, therefore, dismiss this ground of appeal. [ 37 ] Under the final ground of appeal Mr. Wilson submits that the trial judge erred by having no reasonable doubt as to Mr. Wilson’s impairment by alcohol. Mr. Wilson places great emphasis on the fact that, after arresting him, the arresting officer doubted her own assessment of his impairment by alcohol so much so that she made an illegal ASD demand upon him. Mr.

Wilson’s submission is essentially that since the arresting officer herself had a reasonable doubt about his impairment by alcohol before she obtained the ASD results or the results of the breath tests at the police station (recall: these results were excluded from evidence), the trial judge should have had a reasonable doubt as well since he was prohibited from considering those results. Of course, the limited right of appeal under s. 839 of the Criminal Code precludes Mr. Wilson from submitting that the trial judge misapprehended the evidence. As such, Mr.

Wilson says the trial judge erred because he shifted the burden of proof to the defence when he wrote (at para. 131): “Although, as noted above, [the arresting officer] subsequently doubted her own judgment, that does not necessarily make it incorrect.” [ 38 ] What Mr.

Wilson’s submission fails to recognise, however, is that his conviction on the impaired driving charge pivots not on the judgment of the arresting officer but rather on the weight of the whole body of evidence before the trial judge, which cogently supports the conclusion that he operated a motor vehicle while his ability to do so was impaired by alcohol. The trial judge’s statement, which acknowledges the doubt arising in the arresting officer’s mind, is simply that: a statement as to the evidence which was before him.

Impairment by alcohol is an issue of fact which the trier of fact must decide on the evidence adduced at trial. The trial judge was the trier of fact in this case and the views of the arresting officer as to what part of the evidence indicated did not preclude the trial judge from making findings of fact and drawing inferences of fact on the basis of the whole of the evidence which was before him. That is to say, I find no compelling reason to why the arresting officer’s doubt in Mr. Wilson’ impairment by alcohol at the time of arrest should require

the trial judge to have doubt in Mr. Wilson’s impairment by alcohol after he has heard all of the evidence of impairment and alcohol consumption adduced at trial. [ 39 ] Indeed, the trial judge’s reasons establish that he found Mr. Wilson guilty on the impaired charge because he accepted the evidence of the concerned motorist as well as that of the arresting officer. He wrote: [130] As noted above, Mr. Erickson observed, over a space of time, ongoing examples of problematic driving.

Without repeating all of the details, the truck which he was observing had a great deal of difficulty remaining in its lane, and indeed on several occasions it was unable to do so. It kept moving to freeway exits and then veering back onto the freeway. It almost drove through a red light. It almost collided with a stopped car at another red light. Mr. Erickson’s evidence satisfies me that there was a significant problem with the operation of the truck. [131] Constable Mitchell testified that she smelled a “faint” odour of alcohol from the accused at the vehicle.

Although, as noted above, Constable Mitchell subsequently doubted her own judgment, that does not necessarily make it incorrect. In addition, on two different occasions the accused acknowledged that he had been drinking prior to being found in the vehicle by Constable Mitchell. [132] Combining these facts, I have no doubt in my mind that, if the accused was the operator of the truck when it was being observed by Mr.

Erickson, the accused’s ability to operate the truck was impaired by alcohol. [emphasis added] [ 40 ] Earlier in his reasons the trial judge had more particularly summarised the evidence of impairment by alcohol from the arresting officer as follows: [76] Constable Mitchell testified that as the accused walked to the patrol car, he was walking slowly and had difficulty with his coordination. He was walking somewhat side to side. She asked him for his licence and the accused indicated after searching that he did not have his wallet with him.

Constable Mitchell was able to see his wallet in his jacket pocket, so she pulled it out and retrieved his licence. … [78] At [the time of arrest], the constable had the following factors available to her on which to base her arrest:

a) driving behaviour as seen by Mr. Erickson, reported to the constable via dispatch;

b) the fact that the accused had been found in the driver’s seat of the vehicle followed by Mr. Erickson;

c) the accused was found apparently asleep in the driver’s seat, shortly after the vehicle stopped;

d) the accused’s method of walking, being slow, deliberate and problems with coordination side to side;

e) the inability of the accused to locate his wallet; and

f) a faint smell of alcohol when the accused was in the patrol car, although Constable Mitchell said she had a cold at the time and her sense of smell was not then very good. [79] When asked where he had been drinking, the accused indicated at his sister’s place, which he said was about a half block away. Constable Mitchell testified that “drinking” referred to alcohol in this context. [80] In the police car, following the arrest and breath demand, there was further conversation between the accused and Constable Mitchell.

The accused stated that he had had “a couple” of cans of beer earlier that evening, and that it was not possible that anyone had seen him driving because he had just come out to listen to music, presumably denying that he had been driving at all. He also stated that he was very tired and had been under a lot of stress at work recently. [81] As a result of that conversation with the accused, Constable Mitchell testified she began to doubt whether or not it was actually alcohol which was the cause of the driving problems. As a result, she testified, she decided to have him blow into the approved screening device.

At 21:58 she read him the ASD demand, which the accused said he understood. He then blew into the ASD which registered a “fail” result. As a result of this, she believed that he was over .08. She testified that the ASD result confirmed what she had previously thought, but had then begun to doubt. [ 41 ] A conviction for impaired driving will lie where there is sufficient evidence to conclude beyond a reasonable doubt that an accused has driven while his or her ability to operate a motor vehicle was impaired by alcohol or a drug. Here, the Crown had proven that Mr.

Wilson had admitted to having consumed alcohol, had driven aberrantly, and had exhibited deteriorated judgment or attention and a loss of motor co-ordination or control. All of this rationally supports a finding that Mr. Wilson’s ability to operate a motor vehicle was impaired by alcohol. And, as is clear from his reasons, the trial judge found the whole of this evidence (which does not include the results of the ASD and breath tests) sufficiently compelling to justify a verdict of guilt beyond a reasonable doubt on the impaired charge.

As such, a careful reading of the whole of the trial judge’s reasons leaves no room for entertaining the possibility that he improperly shifted the burden of proof to the defence. [ 42 ] Therefore, on this final ground of appeal, I find Mr. Wilson has failed to establish that the appeal judge erred in law by upholding the verdict of guilt rendered by the trial judge. [ 43 ] In the result, I would dismiss this appeal.

DATED at the City of Regina, in the Province of Saskatchewan, this 4 th day of December, A.D. 2013. “Caldwell J.A.” ___ _____ ____ Caldwell J.A. I concur. “Herauf J.A.” Herauf J.A. I concur. “Whitmore J.A.” Whitmore J.A.