Docket: CACR2150 Her Majesty the Queen Appellant - v. -, 2013 SKCA 74

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 74 Date: 2013-07-08 Between: Docket: CACR2150 Her Majesty the Queen Appellant - and - Wayne Patrick Pidskalny Respondent Coram: Richards, Ottenbreit and Caldwell JJ.A. Counsel: Anthony B. Gerein for the appellant John M. Williams and E. Scott Hopley for the respondent Appeal: From: 2012 SKQB 114 Heard: February 27, 2013 Disposition: Appeal dismissed Written Reasons: July 8, 2013

By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Ottenbreit Caldwell J.A. I. introduction [1] The Crown appeals from a stay of proceedings entered by the judge with respect to Wayne Patrick Pidskalny on the charge ofaggravated assault contrary to s. 268 of the Criminal Code. The judge entered the stay after she determined Mr. Pidskalny’s right unders. 11(

b) of the Charter to be tried within a reasonable time had been infringed. The Crown says the judge erred in her analysis; but, Idisagree. While there may be factual inconsistencies in her calculation of the length of the delay, they are inconsequential; moreover, forthe reasons set out below, I can find no reviewable error in the judge’s arrival at her conclusion that the delay in this case wasunreasonable. I would, therefore, dismiss the Crown’s appeal. II. Background [2] The circumstances of this matter, including a timeline of events, are set out in the judge’s decision (see: 2012 SKQB 114).

WhileI need not repeat the facts in their entirety, a general overview of them will prove helpful as background to these reasons. [3] On August 15, 2009, the Regina Police Service arrested Mr. Pidskalny and charged him with aggravated assault after he hadallegedly disfigured another man by striking him in the face with a broken bottle or glass. The police released Mr. Pidskalny that sameday on conditions and an undertaking. In the end, following the procedural events which are at issue in this appeal, the court scheduledthe trial in this matter to take place from June 4 to 22, 2012.

As such, 34.25 months elapsed between the date he was charged and thedate his trial was to conclude. A number of events and circumstances gave rise to this delay. [4] Shortly after he had been charged, Mr. Pidskalny retained counsel and began to seek disclosure of the Crown’s case. Theseefforts continued during pre-trial conferencing. After five adjournments, the Crown took the position that it had satisfied its disclosureobligations and that disclosure was complete. Mr. Pidskalny disagreed. [5] At the same time, Mr.

Pidskalny and the Crown had been negotiating dates for the preliminary hearing; and, in November 2009,they reserved a couple of days in March 2010 for that purpose. However, early in January 2010, the parties consented to reschedule thepreliminary hearing to mid-July 2010. Mr. Pidskalny had taken the position the Crown had not yet provided adequate disclosure.Immediately after the adjournment, Mr. Pidskalny’s counsel wrote to the Crown to request disclosure of certain items that he feltremained undisclosed. The Crown did not respond; nor did it respond to two follow-up letters sent over the next five months.

Then,about a week before the preliminary hearing, the Crown disclosed many of the items which Mr. Pidskalny’s counsel had sought inJanuary 2010. The preliminary hearing then proceeded and Mr. Pidskalny was committed to stand trial. [6] After the preliminary hearing, Mr. Pidskalny identified as then yet outstanding disclosure, but the Crown again took the positionthat it had adequately complied with its disclosure obligations. As such, in May 2011, after a number of pre-trial conferences had beenadjourned, Mr. Pidskalny notified the Crown that he would bring a Stinchcombe application [R. v.

Stinchcombe, (SCC), [1995] 1 S.C.R. 754] to force the Crown to comply with its disclosure obligations. A Queen’s Bench judge heard the applicationin June 2011 and rendered a decision which ordered further disclosure from the Crown (see: R. v. Pidskalny, 2011 SKQB 256). [7] In the meantime, the parties and the court had set the trial of this matter for late-November/early-December, 2011, and mattersprogressed in that regard. However, three weeks prior to trial, the Crown notified Mr. Pidskalny and the court of a change in its trialstrategy. The Crown wished to add a new witness to its witness list.

This witness had been on a “ride-along” with the police on the nightof the alleged assault and the Crown contended Mr. Pidskalny had made inculpatory statements to the witness. The judge cautioned theCrown that the addition of the new witness was likely to raise a number of issues relating to disclosure and Mr. Pidskalny’s Charterrights. The Crown disagreed and persisted with the addition of the witness. In the result, the judge adjourned the matter and rescheduledthe trial to take place in June 2012. At this point, Mr. Pidskalny brought his application under s. 11(

b) of the Charter seeking a stay ofproceedings by reason that he had not been tried within a reasonable time. [8] In her assessment of the delay, the judge reviewed the relevant time periods and found that nine months of the delay between thedate of the charges and the date the trial was scheduled to commence was attributable to the Crown: three months for failing to abide bydisclosure requirements and six months for the change in trial strategy by adding a witness.[1] The judge further found that none of thedelay was properly attributable to Mr.

Pidskalny, aside from an additional 1.25 months of delay which she found him to have waived.The judge found that the remaining 22 months of delay was neutral, in the sense that it was neither attributable to the Crown or theaccused, was inherent to the case or was institutional in nature. [9] Having made her findings as to the attribution of the delay, the judge turned to consider the issue of prejudice. She found that Mr.Pidskalny’s affidavit evidence established some actual prejudice to him resulting from the delay, which included stress, depression,

accommodations at work, and family issues. She noted Mr. Pidskalny remained subject to restrictions on his liberty; however, she wascareful to say those restrictions were not particularly onerous. Finally, while Mr.

Pidskalny had adduced no actual evidence as to anyprejudice to his right to make full answer and defence, the judge acknowledged there are the inherent risks associated with the delay ofany trial, i.e., she inferred that prejudice from the length of the delay in this case. [10] With that, the judge turned to balance the competing interests of seeing that persons charged with offences are brought to trial andof ensuring that that occurs promptly. In the result, she was of the opinion that the delay in this case was unreasonable and was in breachof Mr. Pidskalny’s right under s. 11(

b) of the Charter to be tried within a reasonable time. She then remedied the breach by imposing ajudicial stay of the charge against Mr. Pidskalny. III. Issues [11] In its appeal from the judge’s decision, the Crown raises the following as issues: (

a) Did the judge err in finding a breach of Mr. Pidskalny’s right under s. 11(

b) of the Charter to be tried within a reasonable time? (

b) If not, did she err in ordering a stay of proceedings to remedy that breach? IV. standard of review [12] Section 676(1)(

c) of the Criminal Code affords the Crown a right of appeal from the order of a trial court which stays proceedingson an indictment. In oral argument before us there was some disagreement as to whether this right of appeal might be limited to questionsof law or of law alone. Regardless, the Crown did not seek to directly impugn the facts as found by the judge; rather, it sought to impugnthe judge’s attribution of the factual periods of delay and her resulting conclusion that the delay was unreasonable and that, in remedy, itmerited a judicial stay. In this respect, the questions before this Court are threefold: (

i) whether, on the facts as she found them, the judgeproperly attributed periods of delay to the Crown, which is a question of law reviewable on the standard of correctness (see: R. v.Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20); (ii) whether the balancing component of the judge’s decision with respect tothe resulting prejudice was reasonable, which is a decision entitled to deference (see: R. v. Macintosh, 2011 NSCA 111, 281 C.C.C. (3d)291 at para. 100, aff’d 2013 SCC 23); and (iii) whether a stay is the proper remedy, which, as a question of law, is reviewable on astandard of correctness.

V. analysis A. Framework [13] The Supreme Court of Canada articulated the legal framework for assessing whether a delay is unreasonable in R. v. Morin, (SCC), [1992] 1 S.C.R. 771, at pp. 787-88: 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, [ (SCC), [1989] 2S.C.R. 1120], “[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?”(p. 1131). While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long istoo 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. These factors are substantially the same as those discussed by this Court in Smith, supra, at p. 1131, and in Askov, [(SCC), [1990] 2 S.C.R. 1199], at pp. 1231-32. The judicial process referred to as “balancing” requires an examination of the length of the delay and its evaluation in light of the

other factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion,account must be taken of the interests which s. 11(

b) is designed to protect. Leaving aside the question of delay on appeal, the period tobe scrutinized is the time elapsed from the date of the charge to the end of the trial. See R. v. Kalanj, (SCC), [1989] 1S.C.R. 1594. The length of this period may be shortened by subtracting periods of delay that have been waived. It must then bedetermined whether this period is unreasonable having regard to the interests s. 11(

b) seeks to protect, the explanation for the delay andthe prejudice to the accused. 1. Length [14] The first step, namely assessing the length of the delay, is treated as a threshold issue (see: R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45, at para. 43; R. v. Morin, per Sopinka J. at p. 789; and R. v. Richards, 2012 SKCA 120, [2013] 2 W.W.R. 637,at para. 24). Only if the delay is sufficiently long so as to raise the issue of whether an accused’s s. 11(

b) Charter right might have beenprejudiced will the court continue with its inquiry. Here, the period of time from the laying of the charge to the time the trial wasscheduled to conclude is 34.25 months. This overall delay is sufficiently long to trigger a judicial inquiry into the reasonableness of it, asthe Crown has properly conceded. 2. Waiver [15] The second step involves consideration of whether the accused has waived any periods of time included in the overall delay. Anytime periods in respect of which the accused has waived his s. 11(

b) Charter right must be subtracted from the overall assessment of thedelay (see: R. v. MacDougall, at para. 57; R. v. Morin, at p. 790; R. v. Richards, at para. 25). Here, the judge found Mr. Pidskalny hadwaived approximately five weeks (or 1.25 months) by reason that he had requested an adjournment. Therefore, after subtraction, a totaldelay of 33 months remains. Nevertheless, 33 months of delay, on its face, still calls for a judicial inquiry into the reasonableness of it. 3. Reasons [16] The next step is to consider the various reasons which may explain the delay. The Supreme Court of Canada, in R. v.

Morin,identified the four categories of explanation as: inherent delay; actions of the defence; actions of the Crown; and institutional delay. a. Inherent Delay [17] As it implies, the assessment of inherent delay involves consideration of the inherent time requirements of the specific case inquestion. These inherent time requirements are neutral, in the sense that they are not counted against the Crown or the accused (R. v.MacDougall, at para. 44). [18] In R. v. Richards, this Court held that a delay of 33.5 months was not unreasonable based, in large part, on the inherent timerequirements of that case.

The accused there had been charged following a complex investigation into numerous drug and drug-relatedoffences across four provinces, which also saw charges brought against many other individuals. On an evidentiary basis, the overall caseinvolved the exercise of 43 search warrants and 22 wiretap authorizations and involved up to 40,000 pages of material.

In considerationof the nature of the case, this Court said “[a]ll of these factors unavoidably combined to create a situation where matters moved moreslowly than they would have moved in a more straightforward prosecution” (para. 38). [19] In that the case now before the Court is a “more straightforward prosecution”, R. v. Richards stands in counter-distinction. As thejudge noted, the factual circumstances underlying the offence with which Mr. Pidskalny has been charged are not complicated. Thecircumstances are that of a relatively simple, though no doubt serious, altercation between two individuals.

There is but one accused, onevictim and one offence. The bulk of the evidence against Mr. Pidskalny is eye-witness testimony and the physical injuries of his allegedvictim. There is no DNA evidence, no wiretap evidence, and no evidence which results from the execution of a search warrant or from awarrantless search. There were, until the Crown changed its trial strategy, no potential Charter issues. There was no need for expertwitnesses or any other type of evidence which can be said to increase the complexity of a case. Therefore, while the delay in this case issimilar in length to that in R. v.

Richards, the nature of the case is quite dissimilar. [20] Nevertheless, I am also mindful that the Crown has proceeded on the basis of an indictment and, therefore, this case involves apreliminary hearing and a trial. For an indictable offence, the time to trial will be inherently longer than a matter which proceeds by wayof

summary conviction. This is a factor which must be considered in assessing the overall reasonableness of the delay (R. v. Morin, at p.793). [21] Here, the judge did not determine exactly what length of delay was inherent in the circumstances before the court. Although, byimplication, it seems she accepted approximately 22 months of delay or less as inherent in the circumstances. Regardless, while there isan absence of evidence on this factor, I see no reviewable error in her assessment of this issue.

b. Defence [22] This step in the inquiry looks to the actions of the accused which, although they cannot be said to have amounted to waiver,nevertheless ought to be considered when assessing the reasonableness of the overall delay (see: R. v. MacDougall, at para. 48; R. v.Morin, at pp. 793-94; and R. v. Richards, at para. 27).

Any delay which is recognized as flowing from the actions of the accused must beattributed to the accused and weighed against other explanations for the overall length of the delay. [23] So, for example, if an accused changed counsel, then the delay resulting from that decision should be attributed to the accused. Thesame principle applies to adjournments requested for certain purposes, challenges to search warrants and so on (see: R. v. Morin, at p.793, and R. v. MacDougall, at para. 48).

The inquiry is not undertaken to impute any improper motive; but, rather, it simplyacknowledges that actions voluntarily undertaken by an accused may contribute to, and thereby explain part of, the overall length of thedelay (R. v. Morin, at pp. 793-94). While the focus is on the accused’s actions, the Crown, nevertheless, bears the burden of proving thatthe accused’s actions have caused delay, except in those cases where the effects of the accused’s actions are “so clear and readilyapparent” that the intent of the accused to cause a delay is the inference which must be drawn from the record (R. v.

Askov, (SCC), [1990] 2 S.C.R. 1199, at p. 1228). [24] In this case the Crown submits Mr. Pidskalny’s request for an adjournment of the preliminary hearing caused much of the delaywhich is not inherent and it should thus be attributed to him. The gist of this submission is that his adjournment request was a voluntarychoice and was purely tactical in nature. While that may be the case in some circumstances, with respect, I do not see Mr. Pidskalny’sadjournment request as merely a tactical manoeuvre.

In this sense, to say that his adjournment request was “voluntary”, as that word isused in this context, is to misapprehend the nature of the inquiry. The majority the Supreme Court of Canada put it thusly in R. v. Askov,at pp. 1227-28: As Lamer J. so cogently observed in Mills [ (SCC), [1986] 1 S.C.R. 863], it is a fundamental precept of ourcriminal justice system that it is the responsibility of the Crown to bring the accused to trial. Further, the right to be tried within areasonable time is an aspect of fundamental justice protected by s. 7 of the Charter.

It follows that any inquiry into the conduct of theaccused should in no way absolve the Crown from its responsibility to bring the accused to trial. Nonetheless, there is a societal interestin preventing an accused from using the guarantee as a means of escaping trial. It should be emphasized that an inquiry into the actionsof the accused should be restricted to discovering those situations where the accused’s acts either directly caused the delay (as in Conway[ (SCC), [1989] 1 S.C.R. 1659]), or the acts of the accused are shown to be a deliberate and calculated tactic employed todelay the trial.

These direct acts on the part of the accused, such as seeking an adjournment to retain new counsel, must of course bedistinguished from those situations where the delay was caused by factors beyond the control of the accused, or a situation where theaccused did nothing to prevent a delay caused by the Crown. [emphasis added] [25] Although later, in R. v. Morin, at pp. 793-94, Sopinka J., for the majority, interpreted “voluntary” in these terms: … Included under this heading are all actions taken by the accused which may have caused delay. In this

section I am concerned withactions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venuemotions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. I do not wish to beinterpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accusedchooses to take such action, this will be taken into account in determining what length of delay is reasonable. An example of such actions is provided by Conway, supra.

In Conway, the accused made a number of requests which led to theproceedings being delayed. Those requests included a change of venue motion, changes of solicitor and a request that the accused beallowed to re-elect trial by judge alone. A further example is provided in Bennett, [(1991), (ON CA), 64 C.C.C. (3d)449], where the accused made an election at his scheduled Provincial Court trial to be tried in the then District Court. This converted ascheduled trial into a preliminary inquiry.

While the type of action of the accused in both these cases was unquestionably bona fide, eachaction contributed to the delay and must therefore be taken into consideration in determining whether the overall delay suffered by theaccused was reasonable. [26] Here, Mr. Pidskalny had made repeated requests of the Crown for further and better disclosure, both in advance of and followinghis preliminary hearing.

His counsel wrote several letters to the Crown in this regard, all of which went substantively unanswered.Moreover, as noted, the Crown has an obligation to bring an accused to trial and an obligation to provide the accused with disclosurebefore doing so (see: R. v. MacIntosh, at paras. 47-50, and the authorities cited therein; and see: R. v. Stinchcombe). [27] While the line between an adjournment which may be characterised as “voluntary” and one which is “beyond the control of theaccused” may be a fine one, in my opinion, in that Mr.

Pidskalny’s adjournment request was predicated on disclosure concerns of whichthe Crown was well-aware and which were ultimately resolved in his favour (see: R. v. Pidskalny, 2011 SKQB 256, rev’d, in part, 2012SKCA 28), it was not voluntary and, indeed, may be characterised as being beyond his control. Furthermore, it cannot be said thatMr. Pidskalny did nothing to prevent the resulting delay.

He was diligent in his repeated requests for disclosure and, once it became clearsuch disclosure would not be forthcoming before the preliminary hearing, he sought an adjournment to pre-empt further delay.[2] WhileI recognise that an accused’s request for an adjournment might well be wholly tactical in nature and thus the resulting delay wouldproperly fall at the feet of the accused, this is not, to my thinking, one of those circumstances. Mr.

Pidskalny’s motivation for requestingan adjournment of the preliminary hearing was to obtain better and more complete disclosure from the Crown, in accordance with itsobligations and consisted with his interest of a prompt adjudication of this matter on its merits. On the facts, his request proved prudentbecause the Crown did not provide Mr. Pidskalny with the outstanding undisputed disclosure materials until about one week before thepreliminary hearing. [28] Now, the Crown submits that not every single piece of disclosure needs to be provided to an accused before the preliminaryhearing.

I agree with this as a general proposition and in no way do I mean to say here that the Crown’s disclosure obligations must befully satisfied before a matter may proceed to the preliminary hearing. That is neither the state of the law nor, indeed, what occurred in

this case. Nevertheless, the Crown will bear the consequences where its late or inadequate disclosure directly results in the postponement or interruption of the preliminary hearing and thereby adds to the delay (see: R. v. Thomson , at paras. 16-18 ). On the facts of this case, I am simply not persuaded that the judge erred in finding that the Crown’s inaction with respect to timely and adequate disclosure had led to the adjournment of the preliminary hearing and, therefore, that that delay ought to be attributed to the Crown. I say this simply because I have before me the fact that a judge found Mr.

Pidskalny’s disclosure concerns to have been well-founded considering the nature of the case and the nature of the requested disclosure. Having no reason to look behind this finding, it would appear that Mr.

Pidskalny’s adjournment request was prudent and possibly staved off even further delay. [ 29 ] At the end of the day, the reason which underpins the adjournment request ( i.e. , the Crown’s failure to provide timely and adequate disclosure) sufficiently supports the judge’s conclusion that the four month delay resulting therefrom should fall at the feet of the Crown. [ 30 ] However, before moving on, I note the Crown has suggested that there are other periods of delay which the judge ought to have attributed to Mr. Pidskalny.

I need not go into these periods in any detail except to say that the judge’s characterization of them as neutral, in that they are inherent or institutional periods of delay, reveals no error of law. While they are properly included in the assessment of the overall length of the delay, they do not bear on an assessment of the reasonableness of the delay because they do not result from the actions of either Crown or Mr. Pidskalny and, therefore, are not attributable to either.

Moreover, the collective duration of these periods is such that it does not, in and of itself, call out for an explanation. [ 31 ] I conclude, therefore, by reiterating that the Crown bears the burden of proving that the actions of an accused have caused delay. Here, the judge was not satisfied that the Crown met this burden and I am not persuaded the judge erred in this regard. c. Crown [ 32 ] The next step in the inquiry is to determine what, if any, delay ought to be attributed to the Crown based on its actions.

Again, this assessment is not concerned with assigning blame; it is merely part of the investigatory framework ( R. v. Morin , at p. 794). [ 33 ] Generally speaking, the Crown is responsible for disclosure delays ( R. v. Morin , at p. 794). While nuance in this regard is important, I have already reviewed the judge’s conclusion as to why four months of the delay in this case is attributable to the Crown on the basis of disclosure issues. That leaves only one other period of delay which the judge had attributed to the Crown: the delay resulting from the adjournment of the trial.

The issue is whether the judge properly attributed six months of delay to the Crown by reason that it chose to amend its witness list mere weeks prior to trial. [3] [ 34 ] In assessing whether the delay of the trial in this case ought to be attributed to the Crown, the court must consider the root cause of the adjournment.

While an adjournment inevitably causes a delay, the inquiry here is not a matter of simply ascertaining which party requested the adjournment; rather, it is a matter of ascertaining and understanding the import of the events which led that party to request an adjournment. [ 35 ] Here, approximately three weeks before the trial was to commence, the Crown decided to add a witness to its witness list. The witness had been on a “ride-along” with a police officer who had attended on Mr. Pidskalny’s arrest.

The judge speculated that the nature of this witness’s involvement in the matter was likely to give rise to issues of disclosure and, potentially, a Charter challenge to the admission of his testimony. The Crown disagreed and took the position that the trial could proceed as scheduled. The judge nevertheless adjourned the matter sua sponte . As the record discloses no other reason for an adjournment, the root cause or underlying reason for the adjournment must be the decision made by the Crown. Put another way, but for the Crown’s decision, the trial would not have been adjourned.

In as much as the judge’s decision to adjourn the trial is a final one, it must be taken that it is now beyond reproach. As such, in that the sole cause of the adjournment was the decision of the Crown, it follows that the resulting seven month delay is, as the judge found, properly attributable to the Crown. [ 36 ] Nevertheless, the Crown submits that the full seven months ought not to be attributed to it. In this respect, the Crown points out that it offered Mr. Pidskalny two earlier dates when the trial could have been conducted, but that his defence counsel refused these dates due to unavailability.

However, in R. v. Godin , 2009 SCC 26 , [2009] 2 S.C.R. 3 at para. 23 , the Supreme Court of Canada had this to say with respect to scheduling and counsel availability: … Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(

b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry -- efforts which were ignored -- suggests that he wished to proceed expeditiously.

I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: “To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.” [ 37 ] On the record, Mr. Pidskalny’s counsel had stated that the reason he was unavailable for the first date suggested by the Crown was personal in nature. He declined the second date because he was already scheduled to appear in court on other matters.

As these explanations were proffered to a judge by an officer of the court, there is no prima facie reason to suppose either of them is less than legitimate, nor has the Crown suggested they are not legitimate. So, even though the record indicates the Crown made some attempts to reschedule the trial earlier than June 4 to 22, 2012, I am not persuaded the judge erred by concluding the clock had not stopped simply because it had done so. [ 38 ] And so, in

summary, 11 months of the 33 months of delay in this matter is properly attributable to the Crown. d. Institutional Delay

[39] Institutional delay is systemic in nature. It acknowledges that the justice system has limited resources to commit to the prosecutionof criminal offences (R. v. Morin, at pp. 794-800). In R. v. Morin, at p. 798, Sopinka J. considered what might be a reasonableinstitutional delay. He allowed that a period of eight to 10 months delay in provincial court would be reasonable and that six to eightmonths of delay after committal and to trial would be reasonable.

In light of these general guidelines, a simple case, such as this, could beexpected to acquire 14 to 18 months of institutional delay, which must be taken to account in the overall balancing of interests. [40] Here, the judge noted an absence of evidence as to the state of institutional delay in Saskatchewan. That said, she did specificallyacknowledge and take into account the guidelines in R. v.

Morin; and, while she did not articulate each instance in which a delay was tobe attributed to institutional delay (nor did she have to), she correctly noted that the delay from the date of committal to the date of trialwas significantly in excess of the guidelines. 4. Prejudice [41] In R. v. Morin, at p. 801, the Sopinka J. said that s. 11(

b) of the Charter seeks to protect an accused from “[i]mpairment of the rightto liberty, security of the person, and the ability to make full answer and defence resulting from unreasonable delay in bringing criminaltrials to a conclusion”. The final step in the inquiry into the circumstances of a delay is to assess the prejudice that that delay has causedto these interests and, thus, to the accused. Prejudice may be actual as demonstrated through evidence, inferred from the delay itself or acombination of both (R. v. Godin, at paras. 29-38; and R. v. Morin, at pp. 801-03).

The longer the delay, the stronger the inference ofprejudice. In addition, inferred prejudice may be enough, on a balance, to establish a breach of s. 11(b) (R. v. Godin, at paras. 37-38). Thecourt must keep it squarely in mind, however, that the prejudice in question must be a result of the delay and not of the charges (R. v.Rahey, (SCC), [1987] 1 S.C.R. 588, at p. 624). [42] Here, the Crown submits, somewhat contrary to the factual findings of the judge, that there was minimal prejudice to the interestsat play.

The Crown submits that most, if not all, of the prejudice in this case is attributable to the charge itself and does not result fromthe delay. Mr. Pidskalny, on the other hand, points to his affidavit evidence which he says supports a finding of actual prejudice,alongside any inferred prejudice, and he submits the judge was therefore correct in her overall assessment of prejudice. [43] Given the standard of review, I can find no reviewable error in the judge’s assessment of prejudice in this case, whether actual orinferred. With respect to actual prejudice, Mr.

Pidskalny’s affidavit discloses that he suffered from depression and stress. It also disclosesthat his relationship with his wife was negatively affected and that he required accommodations at his place of employment. Now, theCrown is correct in drawing a distinction between prejudice which results from delay, on the one hand, and the fact criminal chargeswere laid, on the other. And, while it may not always be easy to bear out that distinction in the circumstances of any one case, it isnevertheless an important distinction to keep in mind.

To be sure, individuals charged with offences will normally experience stress andother negative consequences, which may include an adverse impact on personal and employment relationships. That said, unnecessarydelay may exacerbate these attendant experiences and consequences to the point that they manifest in the accused as a depression, orother physical or psychological ailment, which would not have manifested or, at least, would not have presented to the same degree butfor the length of the delay (R. v. Rahey).

When there is evidence of such, and the judge is satisfied with it, the judge may properlyconclude that there is actual prejudice resulting from the delay. [44] Here, on the evidence before her, the judge was satisfied that there had been actual prejudice to Mr. Pidskalny due to the delay andI am not persuaded that I am permitted to interfere with that finding. While Mr. Pidskalny proffered no actual evidence which indicatedthat his ability to make full answer and defence had been compromised, the judge inferred some prejudice from the length of the delay inthis case.

This was a permissible inference and one that was open to the judge to draw in the circumstances of a 33 month delay (R. v.Godin). Nevertheless, despite her findings of actual and inferred prejudice, the judge was also careful to say that Mr. Pidskalny’sconditions of release were not overly onerous and, while he did have some restrictions on his liberty, he had never applied to have thoseconditions relaxed. These facts are relevant to the overall analysis of the resulting prejudice and in the balancing of interests. 5. Balancing [45] The judge found the delay in this case to be unreasonable.

She did so after considering and weighing all of the relevant factorsidentified in R. v. Morin. In R. v. MacIntosh, the court said that the judge’s task of balancing interests, if exercised judicially, ought to beaccorded a measure of deference by the appellate court reviewing the decision. That said, the judge’s conclusion that the 33 months ofdelay here is unreasonable is correct on my own assessment of the circumstances of this case. [46] The charges and the case against Mr. Pidskalny are not inherently difficult or overly complex.

The Crown has provided noexplanation for the events which gave rise to the 11 months of delay which are attributed to it and it serves no purpose to speculate as topossible explanations. Regardless, one third of the delay in this case lies at the feet of the Crown in circumstances where Mr. Pidskalnyhas pressed throughout to move his file forward. Moreover, Mr. Pidskalny has sufficiently established that he has suffered actualprejudice as a result of the overall delay.

On the whole of it then, my assessment of the weight given to the periods of waiver, inherentdelay, institutional delay, and those periods of delay attributable to the parties, as well as the resulting prejudice, give rise to no error onthe part of the judge which would invite this Court to set aside her balancing of the interests at play. [47] Before turning to the issue of the remedy, I would address an outstanding submission of the Crown. In its written submissions, theCrown took issue with the way in which the judge undertook her analysis.

The Crown suggested the judge was overly focused on itsactions and failed to specifically address such matters as the amount of time which ought to be counted towards institutional delay.However, in assessing delay, a mechanical or mathematical approach is not required nor would it be proper (see: R. v. MacDougall, atpara. 41; and R. v. Morin, at p. 787). The nature of an assessment under s. 11(

b) of the Charter is that it may well lead to a set of reasonswhich contain a detailed and meticulous examination of each period of delay and evidence pertaining to the causes thereof; however,“[i]t is important… not to lose sight of the forest for the trees…” (R. v. Godin, at para. 18). What must always be kept in the forefront isthat “the ultimate question for determination is the reasonableness of the overall delay” (R. v. MacDougall, at para. 41). With that, in my

assessment, the judge’s overall approach, her analysis and her conclusions as set out in her written reasons were appropriate in thecontext of this case. B. Remedy [48] The final question is one of remedy. The Crown urges this Court to consider and ultimately find that, where a breach of s. 11(

b) ofthe Charter has occurred, a stay is not always the appropriate remedy; and, furthermore, that this case is one where a stay is notappropriate. The first proposition, although conceptually attractive and ostensibly supported by recent developments in Charterjurisprudence more generally, is in fact still precluded by the current state of the law. Let me explain. [49] In the early days of Charter jurisprudence under s. 11(b), Lamer J. (as he then was) said a stay of proceedings is the minimumremedy which a court may impose when it has made a finding of unreasonable delay (R. v.

Mills, per Lamer J. (in dissent); see also: R. v.Rahey, where a majority of the Court held that a judicial stay is the appropriate remedy when there is a breach of s. 11(b); and see: R. v.Steele, 2012 ONCA 383, 288 C.C.C. (3d) 255, at paras. 30-33, and R. v. R.E.W., 2011 NSCA 18, 268 C.C.C. (3d) 557, at para. 75). TheCrown has suggested that the word ‘minimum’ is used here merely as a method of characterization and is not necessarily the law; but,this is not so. The law is clear: a stay of proceedings is the minimum remedy for a breach of s. 11(

b) of the Charter. [50] The theory which underpins this is that anytime there has been a breach of s. 11(

b) of the Charter there has been a loss ofjurisdiction (see: R. v. Rahey, R. v. Mills, R. v. Steele, and R. v. Bennett (1991), (ON CA), 3 O.R. (3d) 193 (C.A.), perArbour J.A. (as she then was)). For the purposes of these reasons, I need not examine the merits of the theory at any length (others havedone that[4]); rather, I need only recognize that it is the theory currently accepted by the Supreme Court of Canada. The theory plays outsuch that because there has been a loss of jurisdiction, the presiding court has no choice but to impose a stay of proceedings.

Thissuggests that a stay of proceedings is not only the minimum remedy but it is the mandatory remedy whenever a court has made a findingof unreasonable delay in breach of s. 11(

b) of the Charter. [51] In support of its proposition to the contrary, the Crown relies upon Charter jurisprudence which is unrelated to s. 11(b), including,in particular, the recent Supreme Court of Canada decision in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206. In that case, the policehad beaten and seriously injured the accused at the time of his arrest. He pled guilty to various driving offences; but, due to the obviousviolation of his s. 7 Charter rights, he sought a stay of proceedings and, in the alternative, a reduction in sentence.

The trial judge choseto impose a lesser sentence in lieu of a stay and the Supreme Court of Canada agreed with that approach. [52] The Crown suggests that R. v. Nasogaluak, and the other Charter cases it cites outside the context of s. 11(b), support a generalconclusion that the principle that a stay is the minimum remedy under s. 11(

b) is an outdated anomaly which has been superseded. Idisagree. Given that the “loss of jurisdiction” theory is unique to s. 11(b), any developments in Charter jurisprudence, no matter howsignificant, which do not involve an analysis of s. 11(b), that theory and the existing jurisprudence thereunder, do not give this Court theauthority to overrule well-established Supreme Court of Canada precedent with respect to s. 11(b) – indeed, as this Court has said veryrecently (see: R. v. Saskatchewan Federation of Labour, 2013 SKCA 43, and Saskatchewan Federation of Labour v.

Government ofSaskatchewan, 2013 SKCA 61), the principles of stare decisis preclude it from so doing. Therefore, despite R. v. Nasogaluak and otherjurisprudential developments which lie outside s. 11(

b) of the Charter, there is still binding Supreme Court of Canada precedent whichholds that a stay of proceedings is the minimum remedy whenever there has been a breach of s. 11(

b) of the Charter. It is for that Courtto say if it shall be otherwise in the future. VI. disposition [53] For these reasons the Crown’s appeal, both with respect to the finding of unreasonable delay and with respect to remedy, isdismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 8th day of July, 2013. “Caldwell J.A.”_____________________ Caldwell J.A.

I concur “Richards C.J.S.” ___________________ Richards C.J.S. I concur “Ottenbreit J.A.” ___________________ Ottenbreit J.A.