Docket: CACR2180 Her Majesty the Queen Appellant - v. -, 2013 SKCA 95

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 95 Date: 2013-09-12 Between: Docket: CACR2180 Her Majesty the Queen Appellant - and - Nathan Walker Respondent Restriction on Publication: An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Coram: Lane, Jackson and Ottenbreit JJ.A. Counsel: Anthony Gerein for the appellant Michael Megaw, Q.C., and Christina Skibinsky for the respondent Appeal: From: 2012 SKQB 224 Heard: April 26, 2013 Disposition: Appeal dismissed

Written Reasons: September 12, 2013 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson OTTENBREIT J.A. I. Introduction [ 1 ] Nathan Walker was charged with committing a sexual offence on T.D. in August 2009 contrary to s. 271 of the Criminal Code . The complainant alleged that she was sexually assaulted by the accused and a co-accused after leaving a bar. The Crown appeals a Court of Queen’s Bench order granting a stay of proceedings against Mr. Walker on the basis that his Charter rights under s. 11(

b) had been breached. For the reasons hereinafter set forth, the appeal of the Crown is dismissed. II. Facts and Background [ 2 ] The chronology of the court proceedings and dealings between Mr. Walker’s counsel and the Crown is set forth in the judgment of the Queen’s Bench Decision found at 2012 SKQB 224 , para. 8 . However, it is necessary to set out some of the facts germane to the issues raised by this appeal. These issues concern the timing of Crown disclosure and the obligation of the Crown to disclose. [ 3 ] The information which commenced the proceedings against Mr. Walker was sworn September 12, 2009.

Mr. Walker’s first appearance in court was October 30, 2009. He was released from custody on conditions and has not been remanded into custody pending his trial. Mr. Walker’s trial was scheduled to commence September 4, 2012. [ 4 ] Initial disclosure was provided by the Crown to counsel for Mr. Walker on November 20, 2009. There were then a number of adjournments. On February 17, 2010, Mr. Walker’s counsel wrote to the Crown to request, among other specific disclosure, the following: … 3. Any results received to date from the examination of the sexual assault kit.

We would ask for further details relating to the evidence gathered as well as a copy of the analysis report. Follow up disclosure was made to counsel for Mr. Walker on February 26, 2010, and March 3, 2010, but none of this related to the sexual assault kit requested earlier. [ 5 ] On March 15, 2010, the Regina City Police received what is referred to as the ViCLAS letter. ViCLAS refers to the violent crime linkage analysis system which is a Canada wide computer system tasked with identifying serial crimes by identifying commonalities or linkages amongst offenders.

The letter was authored by an RCMP officer working in ViCLAS who questioned the truthfulness of the complainant. The letter contained the following statement “Upon review of the victim’s statement there are several indicators which may question it’s veracity. It is suggested that the statement be brought to the attention of your Truth Verification

Section for further examination”. The author of the ViCLAS letter did not interview the complainant but purported to make his comments based on a review of the complainant’s statement. This letter was not disclosed to the Crown until May 8, 2011. [ 6 ] In March of 2010, Mr. Walker retained new counsel who requested “copies of all expert or laboratory reports” as part of an itemized comprehensive request for disclosure.

In April defence counsel again requested disclosure seeking “the sexual assault kit analysis” as well as other disclosure. [ 7 ] In May of 2010, exhibits from the sexual assault kit were sent for analysis. On May 21, 2010, the Crown provided to the defence some of the requested items from the April disclosure request but not the sexual assault kit analysis. [ 8 ] On October 10, 2010, defence counsel emailed the Crown “I am satisfied disclosure from the docket Crown is complete at this point.

I will need the rape kit, DNA warrant and ITO, etc. but I am willing to follow up with the trial Crown on those issues as the prelim date nears.” Matters were further adjourned.

On January 12, 2011, the Crown disclosed a supplementary occurrence report and the DNA analysis. [ 9 ] On January 28, 2011, defence counsel wrote to the Crown pointing out that the preliminary inquiry date was set on the understanding that the sexual assault kit was outstanding and indicating she was waiting for disclosure of hospital records where the sexual assault kit was conducted (emphasis added), a copy of the warrant for DNA samples as well as the information to obtain.

As it turned out there were two sets of medically related documents concerning the complainant: those seized by the police as part of the sexual assault kit, and those in possession and control of the Regina Qu’Appelle Regional Health Authority. It was not until January 28, 2011, that the Crown became alive to this issue.

[10] On February 8, 2011, the police obtained a release from the complainant to authorize Regina Qu’Appelle Health Region to providemedical records. The records were provided the same day and forwarded to the Crown. On February 9, 2011, which was the firstscheduled date for the preliminary inquiry, the Crown faxed medical records to the accused’s counsel in the morning. Mr. Walkerconsequently requested an adjournment of the preliminary inquiry. The Crown consented and June 9, 2011, was selected as the newdate.

The delay caused by this adjournment was four months. [11] On May 8, 2011, the Regina Police Service advised the Crown of the existence of the ViCLAS letter. On May 10, it was given toCrown counsel. On June 4, five days before the new preliminary hearing date, the ViCLAS letter was disclosed to defence counsel. Some details of what transpired thereafter are necessary. [12] The Crown faxed a copy of the ViCLAS letter to defence counsel on Friday, June 3, 2011, but defence counsel first saw it on June4 when she returned to her office after being away on Friday.

As a result of the disclosure of the ViCLAS letter, she then forwarded arequest for substantial further disclosure to the Crown on Sunday, June 6. Crown counsel was unavailable to speak to her about the issueuntil June 7. After they spoke, defence counsel forwarded another letter to the Crown on June 7, 2011, in relation to the ViCLASdisclosure sought and asked for an adjournment.

The relevant part of this letter is as follows: Disclosure items that we currently await will impact my cross-examination of the complainant in several ways, and ways that we cannoteven anticipate until we know the response to my letter to you yesterday. I may have new questions to cross-examine the complainantwith, there may be new issues I need to investigate, I may restructure that cross-examination, or I may simply decide that I do not want tocross-examine the complainant at all.

It is difficult to imagine another issue that impacts the cross-examination of the main Crownwitness is as a sergeant commenting on the trustworthiness of the complainant. I would ask that you consider at this early time whether we might consent to adjourning this matter so that the Crown has a chance tocancel its witnesses and notify the court. We are now within two days of the preliminary hearing date.

The police may not be able torespond to you before Thursday and if they do, depending on the disclosure connected, I would likely be seeking an adjournment tononetheless consider the issues and re-strategize the defence’s case. The Crown responded on June 8 with new documents related to the ViCLAS letter including a police “can say statement”. Defencecounsel then replied on June 8 with a letter asking more questions related to the disclosure earlier that day. On the morning of June 9,2011, the Crown replied providing answers to the questions posed by defence counsel in her June 8 letter.

Between June 3 and themorning of June 9, the Crown had provided new information to the defence disclosing at least three police officers’ involvementconcerning the veracity of the complainant. [13] At the hearing to request an adjournment of the preliminary inquiry on June 9, defence counsel made it clear that in her view,credibility of the complainant was the main issue. She advised the Court that she had prepared a substantial cross-examination of thecomplainant and she had never seen or dealt with disclosure such as the ViCLAS disclosure before.

She advised that when she reachedCrown counsel by phone on Tuesday, June 7, Crown counsel agreed that he had not, in the past, seen a ViCLAS issue. This was notdenied by the Crown. Defence counsel indicated she needed further time to digest the revelations. She stated that having requestedfurther disclosure, she felt she had little choice but to wait for the Crown to answer her questions. She advised the judge that because ofthe ViCLAS letter and the consequent new disclosure, she could not prepare properly for the preliminary inquiry and that her client wasprejudiced by the late disclosure.

The preliminary inquiry was adjourned despite the Crown’s objections. It was eventually held inNovember and December of 2011. The adjournment had caused a delay of five months. III. Decision of the Court Below [14] The trial judge properly referred to the governing legal principles applicable to the s. 11(

b) rights and stay application found in R.v. Morin, (SCC), [1992] 1 S.C.R. 771, and the analytical approach contained therein. She then proceeded to review theMorin factors. [15] The length of the delay was two years, eleven months and twenty-four days. The Crown conceded that the threshold for furtherexamination of delay was met so as to warrant an inquiry into reasonableness. The trial judge, after examining all of the other Morinfactors, allocated a total of nine months delay to the Crown.

Because the Crown does not challenge the allocation of the rest of the delayon this appeal, it is only necessary to set out the trial judge’s determinations respecting the nine month period. [16] With respect to the four month delay between the first scheduled preliminary hearing and the re-scheduled date, the trial judge saidas follows: 69 Having regard to the Crown’s failure to notify the accused as required by s.278.2(3), I find the delay associated with the firstscheduled preliminary hearing until the re-scheduled date, a period of four months, solely attributable to the Crown.

Evidence of theCrown’s efforts to obtain DNA evidence is, in my view, immaterial to this issue. [17] With respect to the ViCLAS letter and associated disclosure, the trial judge found as follows: 79 For the aforementioned reasons, I find the Crown failed in its duty to disclose the ViCLAS letter and that failure resulted in thepreliminary inquiry being adjourned for a second time.

Adjournments necessitated by failure to disclose are attributable to the Crown.(Pidskalny, supra) This amounted to a delay of five months. [18] With respect to the total delay allocated to the Crown, the trial judge found as follows: 81 As reasoned above, I find nine months of delay attributable to the Crown. The remaining period of time taken to bring this matter

to trial consists of inherent delay or was neutral in attribution or fault. Although the tardy and somewhat careless response to disclosureby the Crown in relation to the “rape kit” was in some measure counterbalanced by imprecise descriptions of the material sought bydefence counsel, the issue reduces down to the Crown’s constitutional obligation to disclose and specifically its failure to notify theaccused as required by ss. 278.2(3) of the Criminal Code.

Similarly, the Crown’s failure to disclose the ViCLAS letter cannot beexcused by revisiting the decision of the Provincial Court judge who granted the adjournment nor in assessing its significance and meritsfor preliminary inquiry purposes. [19] Concerning the issue of prejudice, the trial judge said: 82 I am also satisfied the accused was prejudiced by delay. The accused points to tangible concern for a potentially helpful witnessbeing unable to recall events, along with stress and anxiety experienced, and a cloud of embarrassment which hangs over him. Indeed,Mr.

Walker has suffered both actual and inferential prejudice. Godin, supra reminds judges not to pay lip service to inferential prejudice;it remains an important consideration and is a part of the balancing process. [20] With respect to the balancing required in a s. 11(

b) analysis, the trial judge said as follows: 80 The assessment of reasonableness requires a balancing of the individual right to be tried within a reasonable time with societalneed to have the charges adjudicated. It is beyond question that a delay of almost three years in having a relatively non-complex, singlecount charge heard is a long period. It substantially exceeds the Morin guidelines and is unquestionably an undesirable outcome for theaccused, society and the complainant.

The issue, though, is whether this delay was unreasonable having regard to the Morin factors. [21] The trial judge concluded: 83 Having regard to the totality of the delay, the whole of the evidence and a balancing of the competing interests, particularly theprejudice experienced by the accused, I conclude that delay in this case was unreasonable. Accordingly, I find the accused’s s. 11(b)Charter rights were violated. There will be an order directing that the charge be stayed. IV. Standard of Review [22] The Crown’s right of appeal in this case is set forth in s. 676(1)(

c) of the Criminal Code which allows appeals from an order of atrial court which stays the proceedings on an indictment. [23] The decision by a trial judge to impose a judicial stay for unreasonable delay involves a question of law subject to the correctnessstandard of review (R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, para. 2; R. v. Schertzer, 2009 ONCA 742, leave to appeal refused[2010] S.C.C.A. No. 3). The attribution of periods of delay based on the facts as the court found them is reviewable on a standard ofcorrectness (R. v. Pidskalny, 2013 SKCA 74, [2013] 8 W.W.R. 1; R. v.

Shepherd, 2009 SCC 35, 309 D.L.R. (4th) 139, para. 20). Theunderlying findings of fact are subject to review on a standard of palpable and overriding error (R. v. Tran, 2012 ONCA 18, para. 19). Whether the balancing of the interests in play is reasonable is a decision entitled to deference (R. v. MacIntosh, 2011 NSCA 111, 359D.L.R. (4th) 594, para. 100, aff’d 2013 SCC 23, 359 D.L.R. (4th) 591; R. v. Pidskalny). V. Points in Issue [24] The Crown raises the following arguments on appeal: 1. Did the trial judge err when apportioning blame for lost time? 2. Did the trial judge err when assessing prejudice? 3.

Did the trial judge err when balancing the prejudice against the reasons why the case should proceed and thereby err in finding aviolation of Mr. Walker’s right to be tried within a reasonable time? 4. If the trial judge did not err in finding unreasonable delay, did she, nevertheless, err in ordering a stay and not imposing a lesserremedy? VI. Analysis [25] The rights protected by s. 11(

b) have been described in R. v. Qureshi (2004), (ON CA), 190 C.C.C. (3d) 453(Ont. C.A.), at paras. 8 and 9: 8

Section 11(

b) aims to protect both the individual rights of the accused and the rights of society. It protects three individual rights:it protects the accused’s right to security of the person by minimizing the anxiety and stigma of criminal proceedings; it protects theaccused’s right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects the accused’s right toa fair trial by ensuring that the proceedings occur while evidence is fresh and available. See R. v. Morin, (SCC), [1992]1 S.C.R. 771, at p. 12. 9

Section 11(

b) also seeks to protect two societal rights. First, it protects the public’s interest in having our laws enforced by havingthose who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(

b) seeks to protect the public’s

interest in having those accused of crime dealt with fairly. See R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45, at p. 496. In an examination of whether the s. 11(

b) rights have been infringed, the court seeks to balance these individual and societal goals withthe length, causes and consequences of any delay. [26] The legal framework for assessing whether a delay is unreasonable is articulated in Morin 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, supra, “[i]t is axiomatic that somedelay is inevitable. The question is, at what point does the delay become unreasonable?” (p. 1131). While the Court has at timesindicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows: 1. The length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused. These factors are substantially the same as those discussed by this Court in Smith, supra, at p. 1131, and in Askov, supra, 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 otherfactors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, accountmust be taken of the interests which s. 11(

b) is designed to protect. Leaving aside the question of delay on appeal, the period to bescrutinized 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. Did the trial judge err when apportioning blame for lost time? [27] The Crown concedes that the trial judge was correct in examining the length of the delay, that there was no express waiver ofdelay by the defence, and that the judge’s allocation of attribution of inherent and institutional time requirements to certain time periodswas correct.

Unlike in the court below, the Crown accepts responsibility for the four month delay arising from late disclosure of themedical records which caused the adjournment of the first preliminary inquiry. [28] However, the Crown does not accept the trial judge’s allocation to the Crown of the five months lost by adjourning the preliminaryinquiry on the second date scheduled. The Crown argues that the defence request for an adjournment was a tactical decision rather thanforced by late disclosure of meaningful material having a real bearing on the preliminary inquiry.

The Crown argues that the defenceassertion that it needed an adjournment because it had to reorganize its cross-examination of the complainant as a result of issues raisedby the ViCLAS letter has no merit because the complainant could not be cross-examined on the opinion of the ViCLAS officersinvolved, and the assessment of the complainant’s statement was inadmissible and irrelevant.

The Crown argues that this, coupled withthe fact that exhaustive disclosure is not required before a preliminary inquiry, mandates that the delay for this adjournment should nothave been attributed to the Crown. [29] I cannot agree with the Crown. This was undeniably a case of late disclosure by the Crown. It is trite that the Crown must makedisclosure as soon as reasonably possible and the obligation to disclose is ongoing as stated in R. v.

Stinchcombe, (SCC),[1991] 3 S.C.R. 326, at pp. 342-343: With respect to timing, I agree with the recommendation of the Law Reform Commission of Canada in both of its reports that initialdisclosure should occur before the accused is called upon to elect the mode of trial or to plead. These are crucial steps which the accusedmust take which affect his or her rights in a fundamental way. It will be of great assistance to the accused to know what are the strengthsand weaknesses of the Crown’s case before committing on these issues.

As I have pointed out above, the system will also profit fromearly disclosure as it will foster the resolution of many charges without trial, through increased numbers of withdrawals and pleas ofguilty. The obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be made at any timeafter the charge. Provided the request for disclosure has been timely, it should be complied with so as to enable the accused sufficienttime before election or plea to consider the information. In the rare cases in which the accused is unrepresented, Crown counsel should

advise the accused of the right to disclosure and a plea should not be taken unless the trial judge is satisfied that this has been done. Atthis stage, the Crown’s brief will often not be complete and disclosure will be limited by this fact. Nevertheless, the obligation todisclose is a continuing one and disclosure must be completed when additional information is received. [30] The ViCLAS letter was in the possession of the police for 14 months and the Crown for an additional month before it wasdisclosed to the defence five days before the second scheduled preliminary inquiry.

In this case the Crown obviously determined thatthe ViCLAS letter was of sufficient relevance to disclose, yet it did not disclose it promptly even after the police had sent it to them. It isclear that the disclosure of the letter was late in all the circumstances and it is also clear that the late disclosure was the eventprecipitating the request for an adjournment. This was the factual underpinning of the trial judge’s allocation of this time to the Crown.

She made no error in this respect. [31] However, the Crown argues that despite an obligation to disclose the ViCLAS letter earlier, the failure to do so should not havenecessitated an adjournment of the preliminary inquiry because the disclosure could not have been useful to the defence at thepreliminary inquiry.

While it might be true that its usefulness was not readily apparent and even the trial judge could not conclude thatthe ViCLAS letter would assist the defence in a meaningful way, framing the matter this way does not address the real issue. [32] The point is that the lateness of disclosure by the Crown, in my view, did not give defence counsel sufficient time to determinewhether the ViCLAS disclosure would impact the preliminary inquiry and her approach to cross-examination.

While initial disclosureprior to the preliminary inquiry may not always be full disclosure, an accused must be given sufficient disclosure early enough to allowhim or her to make informed decisions in any situation where he or she is expected to take steps in advance of trial. Mr. Walker’scounsel’s cross-examination of the complainant where credibility was an issue was an important part of his answer and defence. [33] Defence counsel was rightly perplexed on receiving a type of disclosure she had never seen before.

Given the short periodbetween the disclosure of the ViCLAS material and the preliminary inquiry, defence counsel was clearly attempting to determine itssignificance to her cross-examination of the complainant. She properly asked for more information as was her duty to do and furthersubstantial disclosure resulted. In the face of this new development she was right to ask for an adjournment so that she could properlyprepare and put some meaning, if any, on both the ViCLAS letter and the further disclosure. This much is clear from the excerpts ofcounsel’s June 7, 2011, letter to the Crown and the transcript.

Although the Crown submits the request for an adjournment was tactical,based on the evidence this was not so. [34] The Crown cannot shortly before a preliminary inquiry provide what in this case was somewhat novel disclosure regarding thecredibility of the complainant and then, in response to defence counsel asking further questions about it, say that credibility is not anissue at the preliminary inquiry. While issues of credibility are not foremost in the consideration of the judge hearing the preliminaryinquiry, credibility remains an issue to be explored from the viewpoint of the defence.

Defence counsel, given the short time framesinvolved in this case, was entitled to have more than three days to digest and figure out what the unusual disclosure meant and how itaffected her cross-examination of the complainant, if at all. [35] That said, I am not suggesting that every disclosure of new information shortly before a preliminary inquiry will justify the defenceasking for an adjournment. Whether it is justified will be case specific.

Without exhaustively listing all the considerations, the kind andnature of information disclosed, the time before the scheduled date and whether or not the adjournment request in the circumstancesappears to be tactical could all matter. [36] In light of the foregoing, the trial judge was correct to allocate the five months delay to the Crown based on its failure to disclosethe information in a timely manner. 2.

Did the trial judge err when assessing prejudice? [37] The Crown argues that the trial judge also erred on the issue of prejudice by failing to differentiate between prejudice flowing fromthe fact of criminal proceedings and arising from or exacerbated by delay. The Crown argues that the prejudice averred to in theaccused’s affidavit was almost entirely the usual burden of having a criminal charge pending. The Crown also argues that the trial judgeoverstated the inability of the witness for the accused to recall events. [38] I see no error in the trial judge’s determination of prejudice.

Caldwell J.A., in Pidskalny, has recently said the following: 41 In R. v. Morin, at p. 801, 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). The trial judge concluded that Mr. Walker had suffered actual prejudice related to his stress and anxiety and to witness’s recall based onhis affidavit, and as well, inferential prejudice.

She was correct in that conclusion. [39] Although there is a difference between prejudice which is the inevitable concomitant of facing a criminal charge and that directlyattributable to delay, the prejudice is not necessarily of a different kind. In R. v. Kovacs-Tatar (2004), (ON CA), 192C.C.C. (3d) 91 (Ont. C.A.), the Court said:

33 The focus of prejudice under s. 11(

b) is the prejudice flowing from a situation “prolonged” by delay rather than the mere fact of being charged with a criminal offence: Bennett , supra , at 478. In R. v. Silveira , [1998] O.J. No. 1622 (Gen. Div.) , Hill J. clarified at p. 9 that “[t]he shame of disclosure to family, the expense of defending criminal charges, and the like, arise from the laying of the criminal charge itself and not from delay to trial.” He accepted, however, that the delay to trial beyond the guidelines prolongs an accused’s shame and increases his or her anxiety.

Thus, what was initially prejudice from being charged may become prejudice caused by institutional delay due to a delay beyond the guidelines. In short, the prejudice can be kept to a minimum by a speedy disposition of the charge. In this case it is quite understandable that an extra nine months of jeopardy because of the Crown’s delay would cause increased anxiety and embarrassment as described by Mr. Walker. Moreover, the trial judge accepted the accused’s concern which was supported by evidence at the preliminary inquiry that the delay had diminished witness’s recall of events. 3.

Did the trial judge err when balancing the prejudice against the reasons why the case should proceed and thereby err in finding a violation of Mr. Walker’s right to be tried within a reasonable time? [ 40 ] With respect to balancing considerations, the Crown argues that the trial judge erred in doing the balancing. It argues simply that the extra time it took, unpleasant as it may be, should not tip the balance in favour of staying a sexual assault charge. [ 41 ] This argument must fail as well.

The trial judge was aware of and properly stated (in para. 80) the governing principles on the balancing of interests. [ 42 ] The trial judge observed that this was a non-complex, single count matter which was delayed for almost three years, nine months of which were attributable to the Crown. She found that it exceeded the Morin guidelines and was an undesirable outcome for the accused, society and the complainant. Her decision in this respect is entitled to deference. I cannot say that she erred in the balancing of the factors given the standard of review. 4.

If the trial judge did not err in finding unreasonable delay, did she nevertheless err in ordering a stay and not imposing a lesser remedy? [ 43 ] This ground may be disposed of quickly. As indicated by Caldwell J.A. in Pidskalny , once delay is found to be unreasonable, a stay is the minimum remedy. The analysis in Pidskalny on this issue is applicable to this case and I adopt it. VII. Conclusion [ 44 ] The appeal of the Crown is dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 12 th day of September, A.D. 2013. “Ottenbreit J.A.” Ottenbreit J.A.

I concur “Ottenbreit J.A.” for Lane J.A. I concur “Jackson J.A.” Jackson J.A.