Docket: CACR2420 Spencer Shepherd Appellant - v. -, 2014 SKCA 123

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 123 Date: 2014-11-21 Between: Docket: CACR2420 Spencer Shepherd Appellant - and - Her Majesty the Queen Respondent Coram: Klebuc, Caldwell and Herauf JJ.A. Counsel: Michael Owens for the appellant Andrew Davis for the respondent Appeal: From: 2014 SKQB 83 Heard: November 21, 2014 Disposition: Dismissed (orally) Written Reasons: November 24, 2014

By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Mr. Justice Klebuc The Honourable Mr. Justice Caldwell Herauf J.A. [1] Mr. Shepherd requests leave to appeal and, if leave is granted, appeals against a decision of the

summary conviction appeal court(2014 SKQB 83) that overturned the decision from the Provincial Court (2013 SKPC 12) which had stayed charges of impaired operationof a motor vehicle and operating a motor vehicle while over .08 because of a violation of Mr. Shepherd’s s. 11(

b) Charter rights. [2] Simply put, the trial court held that a delay of 37 months, of which 23 and one-quarter months were attributed to the Crown, wastoo long. As a result, the Provincial Court judge imposed a stay of the charges pursuant to s. 24(1) of the Charter. [3] The appeal court found that the trial court had erred in three ways, namely: (

i) by classifying the delay occasioned by the originaltrial judge’s illness as “institutional delay” attributable to the Crown rather than “inherent delay” which is neutral; (ii) by taking judicialnotice of internal statistics regarding the time it takes to get to trial; and (iii) by failing to balance the prejudice suffered by Mr. Shepherdagainst society’s interests in having the matter dealt with by a trial on its merits.

As a result, the appeal court set aside the judicial stayand remitted the matter to Provincial Court for a retrial. [4] The issues in this appeal are narrow as the appeal court declined to interfere with the trial court’s findings on the issues of waiver,tactical delay and prejudice. [5] We agree with the appellant that the primary difference between the trial court and the appeal court decisions is theinterpretation each gave of the Supreme Court decision in R v MacDougall, (SCC), [1998] 3 SCR 45. We have had thebenefit of Mr. Owens’ able submissions on this point, but our

interpretation of MacDougall is in line with that of the appeal court. Itfollows we must sustain the appeal court’s conclusion that the trial court incorrectly attributed the seven month period from the date ofthe decision to proceed to a new trial and the date selected for that trial as being “institutional delay”. We come to this conclusion for thefollowing reasons: (

i) the original trial judge’s illness was an extraordinary, unforeseeable event; (ii) there was no delay on the Crown’spart to have a new judge assigned (e.g. the transcript shows that the Crown in fact waived platoon); (iii) a new trial date was offeredwithin six to seven months. As an aside, we must express our concern that there is no record of the appearance before the trialcoordinator when the date for a new trial was selected.

A transcript of what occurred at that appearance could have been fundamental inan application of this nature by verifying what exactly transpired when the parties spoke to a date for the second trial.

For instance,without a record of it, we are completely unaware whether there had been a request to the trial coordinator for an expedited trial; (iv) insuch circumstances, the appeal court found correctly that this six to seven month period should be classified as neutral. [6] With this seven month time period classified as neutral, the appeal court committed no error when it found that the remainingperiod of delay was well within reason in the circumstances. [7] We also agree with the appeal court that the trial court’s use of internal Provincial Court statistics in the assessment of delay wasimproper.

We agree that these records are not so notorious as to be generally known so as to meet the requirement of judicial notice. Thetrial judge should have confined his analysis to the evidence adduced on the application. [8] Finally, we agree with the appeal court that the trial court did not balance the interests of Mr. Shepherd against those of society tohave this matter determined on its merits. We agree with the finding of the appeal court that the prejudice suffered by Mr. Shepherd wasoffset in the circumstances by societal interests. [9] For these brief reasons, we endorse the conclusions of the appeal court.

We grant leave to appeal, dismiss the appeal and confirmthe order for a new trial.