R v Scott, 2015 SKCA 144

Court of Appeal for Saskatchewan Docket: CACR2403 Citation: R v Scott , 2015 SKCA 144 Date: 2015-12-21 Between: Her Majesty the Queen Appellant And Lambert Douglas Scott Respondent Before: Jackson, Caldwell and Herauf JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Herauf In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Caldwell On Appeal From: QBC 1/2013, J.C. of Melfort Heard: September 9, 2015 Counsel: Andrew Davis for the Appellant Bruce Campbell for the Respondent Herauf J.A. I.

Introduction [ 1 ] The respondent, Lambert Douglas Scott, was charged with sexual assault under s. 271 of the Criminal Code and sexual interference under s. 151 of the Criminal Code . Mr. Scott made a successful s. 11( b ) (trial within a reasonable time) Charter application to both charges. As a result of the successful Charter application, the trial judge stayed the charges against Mr. Scott.

The Crown appeals this decision alleging that the trial judge erred, not in her definition of the relevant law, but in her application of the law to the facts of this case. [ 2 ] While I acknowledge there were some minor errors and certain time limits can be massaged, in my view, they do not affect the ultimate conclusion that the delay in this case was unreasonable. It follows that I would dismiss the appeal.

II. background [ 3 ] The dates relevant to the application are not in issue and set out in the decision of the trial judge as follows: [3] The following dates and information are relevant to the application:

a) On or between July 1, 2009 and July 30, 2009, date of the alleged offence; b) […], 2010, K.L. gave birth to a child, R.L.;

c) April 8, 2010, an Information to Obtain a Search Warrant pursuant to s. 487(1) of the Criminal Code , R.S.C. 1985, c. C-46 (the “ Criminal Code ”) was sworn by the police investigator and the Warrant was authorized by a Justice of the Peace;

d) Spring or summer, 2010, blood samples previously taken from K.L. and R.L. and stored at the hospital were seized on the strength of the Search Warrant;

e) June 1, 2010, an Information to Obtain a Warrant to Take Bodily Substances for DNA Analysis pursuant to s. 487.05 of the Criminal Code was sworn by the police investigator and the Warrant was authorized by a Provincial Court Judge;

f) June 17, 2010, the Warrant to Take Bodily Substances for DNA Analysis was executed and blood was taken from the accused;

g) August 3, 2010, a Forensic Laboratory Report from the Royal Canadian Mounted Police (“RCMP”) Biology Services was completed and contained conclusions strongly supporting the father of R.L. to be the accused;

h) October 21, 2010, an Information was sworn containing Count #1 as written above and Count #2 as written above except that “sixteen years” reads “fourteen years”;

i) February 8, 2011, the October 21, 2010 Information was withdrawn by the Crown. The accused was in custody connected to other matters and appeared by video on this Information;

j) On March 28, 2011, an Information to Obtain a Warrant to Take Bodily Substances for DNA Analysis pursuant to s. 487.05 of the

Criminal Code was sworn by the police investigator and the Warrant was authorized by a Provincial Court Judge. The Information to Obtain a Warrant to Take Bodily Substances for DNA Analysis was the same as the June 1, 2010 Information to Obtain other than the March 28, 2011 Information to Obtain contains three additional paragraphs;

k) April 15, 2011, the March 28, 2011 Warrant to Take Bodily Substances for DNA Analysis was executed and blood was taken from the accused; 1) August 11, 2011, a Forensic Laboratory Report from the RCMP Biology Services was completed and contained conclusions strongly supporting the father of R.L. to be the accused;

m) November 1, 2011, an Information was sworn containing Counts #1 and #2 as above;

n) November 15, 2011, the accused appeared in Provincial Court. Representing the accused was a lawyer with Legal Aid who requested disclosure regarding the charges. The two count Information was adjourned by the presiding Provincial Court Judge at the request of the accused to January 17, 2012. The accused was remanded in custody on these matters with his consent. The accused was also in custody as a serving prisoner on other matters. No application for bail was made by the accused;

o) January 16, 2012, the accused appeared by video. The matter was spoken to a day early to address the accused’s adjournment request. The accused’s lawyer sought and was granted leave to withdraw. The accused advised the court that he was seeking the assistance of private counsel and would have a new lawyer in place by April 3, 2012. The Information was adjourned at the request of the accused to April 3, 2012. The accused was remanded in custody on these matters with his consent. He was also in custody as a serving prisoner on other matters until January 31, 2012. No application for bail was made by the accused.

At that time, the accused advised the presiding Provincial Court Judge that it did not matter to him how long he remained in custody on the charges in the Information. The Provincial Court Judge made it peremptory on the accused to enter a plea to the charges and make an election on the adjourned date. The Provincial Court Judge offered to provide special sitting dates for a preliminary hearing in the event that a not guilty plea was entered;

p) April 3, 2012, the accused appeared on the Information unaided by a lawyer. The accused advised the presiding Provincial Court Judge that the lawyer he wished to have assist him was not able to do so. The accused requested an adjournment to allow him to contact another lawyer and the Information was adjourned to May 1, 2012. The accused was remanded in custody on these matters with his consent. No application for bail was made by the accused. No plea was entered or election made;

q) May 1, 2012, the accused had not retained a lawyer. The accused wanted time to appeal his Legal Aid denial. He entered a not guilty plea and elected to be tried by a Queen’s Bench Judge with a Jury. Not knowing whether the appeal of the Legal Aid denial would be successful, the Crown applied, pursuant to s. 486.3 of the Criminal Code to have the Judge appoint counsel to conduct the cross- examination of K.L. The application was granted. The Information was adjourned at the request of the accused until June 5, 2012;

r) June 5, 2012, private counsel was present and prepared to accept the appointment to cross-examine K.L. A preliminary hearing date of August 13, 2012 was set. With the assistance of counsel, the accused consented to being remanded in custody until August 31, 2012;

s) August 13, 2012, the accused did not want to proceed with court appointed counsel cross-examining only K.L. The accused wanted assistance with the entire preliminary hearing. The accused thought court appointed counsel was assisting him on the entire matter. The accused advised that Legal Aid denied his appeal for representation. The accused made an application to have court appointed counsel represent him on all matters connected to the Information. The court granted the request.

The accused wanted the preliminary hearing adjourned to allow court appointed counsel to properly prepare to handle the entire matter. The Crown advised the court that K.L. was not present for the preliminary hearing, though stated they were prepared to proceed in her absence. The Information was adjourned to October 17, 2012 for preliminary hearing;

t) October 2, 2012, the matter was brought forward to be spoken to. The Crown was not available on October 17, 2012. The matter was adjourned to January 24, 2013 for the preliminary hearing;

u) January 16, 2013, the accused consented to his committal to stand trial on the two counts contained in the Information. The accused consented to being remanded until the next sitting of the Court of Queen’s Bench;

v) January 17, 2013, the Crown prepared and filed with the court an Indictment containing the two charges from the November 1, 2011 Information;

w) February 8, 2013, first Pre-Trial Conference was held and adjourned to February 25, 2013;

x) February 25, 2013, second Pre-Trial Conference held. A Pre-Trial Motion date was scheduled for September 20, 2013. A five day Judge and Jury trial was scheduled to commence November 4, 2013;

y) April 23, 2013, the accused appeared in the Court of Queen ’ s Bench to make application for a Detention Review Hearing pursuant to s. 525 of the Criminal Code . The residing Court of Queen’s Bench Justice ordered the preparation of a Bail Verification Report and an Electronic Monitoring Report. The Detention Review Hearing was scheduled for May 28, 2013 but was never held. No reason has been given;

z) September 6, 2013, a Pre-Trial Case Management Conference for a Jury trial occurred. The accused’s counsel advised that he would likely be withdrawing and would advise the court and the Crown with certainty within a few days. The Management Conference was adjourned to September 13, 2013; aa) September 13, 2013, counsel for the accused confirmed that he would remain the accused’s legal representative. The Management Conference occurred. The Indictment was adjourned to September 20, 2013 for the previously scheduled Pre-Trial Motion; bb) September 19, 2013, the accused prepared a Notice of Re-election indicating that he wished to be tried by a court composed of a

Queen’s Bench Judge sitting alone rather than a Court of Queen's Bench Judge sitting with a Jury; cc) September 20, 2013, the Notice of Re-election was filed with the court. The accused was arraigned on the Indictment and not guiltypleas were entered to both counts. A Voir Dire to address the accused’s Pre-Trial Motion regarding the legal sufficiency of the Warrantsoccurred. The matter was adjourned to October 25, 2013 for decision on the Voir Dire; dd) October 3, 2013, the Crown applied to have six witnesses testify by video pursuant to s. 714.3 of the Criminal Code.

The applicationwas granted; ee) October 25, 2013, the decision on the matters addressed in the Voir Dire was given. On this date, the accused provided the court withnotice of a further application regarding the present s. 11(

b) Charter application. The matter was adjourned to October 31, 2013 toaddress this application; ff) October 31, 2013, the Crown requested an opportunity to have transcripts of the accused’s Provincial Court appearances prepared.The trial dates scheduled for November 4 to 8, 2013 were vacated. This application was scheduled to be heard on December 5, 2013 andalso December 6, 2013, if necessary; gg) November 7, 2013, a conference call occurred in order to set tentative trial dates for May 20 to May 23, 2014 in the event theaccused’s s. 11(

b) application was not successful; hh) December 5, 2013, the second Voir Dire was held to address the s. 11(

b) Charter application. Counsel requested an opportunity tofile written material which was to be exchanged by January 8, 2014. The matter was adjourned to January 17, 2014 for argument; ii) January 17, 2014, argument respecting the application was heard and the matter was reserved until February 14, 2014. III. issue [4] The only issue is whether the trial judge erred in finding a violation of Mr. Scott’s s. 11(

b) Charter right to be tried within areasonable period. IV. decision of the trial judge [5] The trial judge identified the governing legal principles applicable to a s. 11(

b) inquiry as set out in R v Morin, (SCC), [1992] 1 SCR 771 [Morin]. [6] In her analysis on the length of the delay, the trial judge concluded that the time begins upon the swearing of the firstinformation on October 21, 2010, and not on the swearing of the second information which occurred on November 1, 2011. The totaltimeframe from October 21, 2010, to the scheduled conclusion of the trial (May 23, 2014) was approximately 43.5 months. She foundthat the 43.5-month timeframe is sufficient to meet the threshold as to raise the reasonableness of the delay.

The Crown does not disputethis finding. [7] The trial judge found that Mr. Scott had not waived his rights under s. 11(b). However, she did recognize that Mr. Scott’sconduct may still be considered when looking at the “Actions of the Accused” assessment. [8] In her examination of the reasons for the delay, the trial judge concluded that approximately 7 months is attributable toinherent delay, 9.5 months is attributable to actions of Mr.

Scott, 16 months is attributable to actions of the Crown, and 10 months isattributable to institutional delay. [9] The trial judge carefully considered prejudice to the accused and concluded that Mr. Scott had suffered actual prejudice as aresult of the “prolonged delay.” [10] She ended her analysis by comprehensively setting out the interests of Mr. Scott and society. After weighing these interestsshe ultimately concluded that “[t]he prejudice to the accused outweighs society’s interest in bringing the accused to trial. As such, Iconclude that the accused’s s. 11(

b) Charter rights have been breached” (see para. 81). [11] As a result, the trial judge made an order pursuant to s. 24(1) of the Charter that both charges against Mr. Scott are stayed. V. the law regarding trial within a reasonable time [12]

Section 11(

b) of the Canadian Charter of Rights and Freedoms states: “Any person charged with an offence has the right tobe tried within a reasonable time.” [13] The legal framework governing a s. 11(

b) analysis was set out by the Supreme Court of Canada in Morin at 787–788: 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. [ 14 ] The analysis following the reasons for delay was set out by Richards J.A. (as he then was) in R v Richards , 2012 SKCA 120 , [2012] 2 WWR 637: [30] After working through the reasons for delay, the next step in the analysis involves considering the issue of prejudice to the accused person caused by the delay. This must be assessed on a case-by-case basis. Prejudice can be inferred from prolonged delay.

Further, an accused person may lead evidence to show such things as restrictions to his or her liberty caused by pre-trial incarceration or bail conditions, ongoing stress or damage to reputation arising from extended exposure to the criminal process, prejudice to his or her ability to mount an effective defence, and so forth. [31] In the end, deciding if s. 11 (

b) has been violated in the circumstances of any particular proceeding involves consideration of whether the delay is unreasonable having regard not only to the interests s. 11 (

b) protects but also to the reasons for the delay and the prejudice suffered by the accused because of the delay. In R. v. MacDougall, supra , McLachlin J. (as she then was) put it this way: [60] Whether delay in sentencing amounts to a violation of s. 11 (

b) depends on whether the delay was unreasonable considering the length of the delay, the reasons for the delay, the effect of any waivers of delay and the prejudice suffered by the accused. VI. analysis [ 15 ] The Crown submits that the trial judge made three errors. First, she erred by looking at the whole of the period and making a global assessment of its reasonableness in determining that the entire 43.5 months was unreasonable, regardless of who caused it. Second, she erred by failing to attribute certain periods of delay to the respondent and she misattributed other periods to the Crown.

Finally, she failed to correctly balance the length of the delay and the prejudice suffered by the respondent with the seriousness of the offence. I will deal with each suggested error in turn. A. Determination that the entire 43.5 months was unreasonable [ 16 ] The Crown contends that the trial judge erred by finding a s. 11 (

b) violation based on the entire delay, regardless of who caused it. The Crown points to a specific paragraph in the trial judgment in support of this contention, namely, para. 80, which reads: “A period of time of 43.5 months to bring a matter, complicated only by a forensic DNA analysis but otherwise straightforward, to conclusion is not reasonable.” [ 17 ] The Crown argues that the only possible

interpretation is that the trial judge found a breach by holding that everything, including inherent and defence delay, was unreasonable and the only remedy available to this Court is to quash the verdict. Essentially, this argument boils down to the fact that the trial judge stated the 43.5 months was an unreasonable delay which failed to take into account delays caused by the respondent.

According to the Crown, following the trial judge’s logic, even if the majority of the delay was caused by the respondent, this total time period would still have been considered an unreasonable delay according to the trial judge’s approach. The Crown submits that the remainder of the judgment of the trial judge cannot be used to save the decision. [ 18 ] In my opinion, finding a significant legal error based only on the passage cited above would fail to give effect to the rest of the trial judge’s analysis.

Indeed, the trial judge was acutely aware that this entire period was not attributable to the Crown. [ 19 ] At paras. 71–73, the trial judge sets out that the respondent bears responsibility for 9.5 months of the delay. The trial judge also concludes that only 16 months is attributed to the Crown for which the Crown can provide no reasonable explanation or justification. [ 20 ] In light of these comments, the trial judge’s statement does not constitute a reversible legal error meriting the setting aside of her decision. The trial judge found that at no time did the respondent waive his rights.

Therefore, the period which the trial judge must characterize as being either reasonable or unreasonable is the entire 43.5 months. The trial judge made this determination “having regard to the interests s. 11 (

b) seeks to protect, the explanation for the delay and the prejudice to the accused” (see Morin at 788). Accordingly, I would not give effect to the contention of the Crown with respect to this issue. B. Miscalculation of the total time and misattribution of delay

1. Length of the delay [21] The Crown argues that the trial judge erred in her assessment that the time runs from when the first information was sworn. [22] As noted in the factual background, the first information was sworn on October 21, 2010, and withdrawn on February 8,2011. The second information was sworn on November 1, 2011.

The evidence is undisputed that the only change to the secondinformation from the first was that “sixteen years” was substituted for “fourteen years” as it relates to the s. 153 Criminal Code charge. [23] In her conclusion that the time runs from when the first information was sworn, the trial judge relied upon R v Carter, (SCC), [1986] 1 SCR 981 [Carter]; R v Kalanj, (SCC), [1989] 1 SCR 1594 [Kalanj]; and R v Antoine (1983), (ON CA), 5 CCC (3d) 97 (Ont CA) [Antoine]. [24] In Carter, the Supreme Court stated that the time frame “generally” runs only from the moment a person is charged with anoffence.

The Court was quick to expand on what it meant by “generally” (at p. 985): … I might add that I say “generally” because there might be exceptional circumstances under which the time might run prior to the actualcharge on which the accused will be tried. As an example, if the Crown withdraws the charge to substitute a different one but for thesame transaction, the computation of time might well commence as of the first charge.... [25] The Supreme Court, in Kalanj, reiterated that time commences from the date the original information was sworn (at p. 1610): ...

The exception referred to by Lamer J. in Carter—where two indictments are preferred because of successful appeals after a first trial—has been dealt with in R. v. Antoine (1983), (ON CA), 5 C.C.C. (3d) 97 (Ont. C.A.), and Re Garton and Whelan(1984), (ON SC), 14 C.C.C. (3d) 449 (Ont. H.C.). These cases support the proposition that pre-charge delay is notrelevant under s. 11(b), by holding that the time commences to run from the date the original information was sworn. [26] In Antoine, the Ontario Court of Appeal, for the purposes of a s. 11(

b) application, included the time period from when thefirst information was sworn to the time of the trial on a second indictment. The first indictment had been successfully quashed due to thecharge being inadequately worded. [27] The Crown here claims that the trial judge was wrong to rely on the cases that she did. It submits Antoine provides littlesupport because, in that case, the accused was not subject to charges for only six days before a new information was sworn. In the casebefore us, eight months went by before a new information was sworn.

Kalanj, according to the Crown, did not cast doubt on the issue assuggested by the trial judge, but rather confirmed that “charged with an offence” does not have a flexible meaning. A person is notcharged with an offence until an information is sworn charging him. [28] I respectfully disagree with the Crown’s attempt to distinguish the cases relied upon by the trial judge. The difference in thelength of time between six days in Antoine and eight months in this case does not assist the Crown.

In fact, taking eight months to replacea defective information with a minor change on one charge was never adequately explained by the Crown. [29] Carter and Kalanj confirmed that there are exceptions to the general proposition that the time begins to run when a person ischarged with an offence. Substituting informations and indictments to correct defective wording is one of those exceptions.

Therefore, Ican find no reversible error in the trial judge’s reliance on these cases to support her conclusion that the clock starts ticking on the daythe first information was sworn. [30] The Crown further submits that the Ontario Court of Appeal’s decision in R v Milani, 2014 ONCA 536, 314 CCC (3d) 101,leave to appeal refused [2014] SCCA No 426 (QL) [Milani], is directly on point. In that case, the Court holds, as a general rule, that gapsin between indictments will not be considered under the s. 11(

b) analysis. However, as noted by both the Crown and the respondent, theCourt added a caveat to this rule. Indeed, at para. 48 of Milani, the Court stated: … [W]here the formal charge has been withdrawn with the intention of laying a new charge, or an information has been quashed with anew information laid, it makes sense to consider the entire period from when the first charges were laid as part of the s. 11(

b) analysis. Insuch circumstances, the person, although not formally charged during the "gap" period, remains subject to the judicial process, and his s.11(

b) interests will continue to be affected by the knowledge or expectation that further charges are imminent…. [31] In this case, the trial judge found that the information had been withdrawn because of the defective wording; whereas, theCrown argues that it lacked crucial admissible evidence necessary to proceed. It is mischaracterization to say that the Crown lacked thecritical DNA evidence. New DNA warrant documents were prepared only to cure the same defective wording as that found in theoriginal information.

In either case, it is clear that the Crown intended to swear a second information simply to replace the original. [32] The Crown then suggests that, “there must be evidence that the accused person was aware of the ongoing procedures and thatthey in fact had a real impact on him” (see para. 68 of the Crown factum). First, the respondent’s knowledge may be inferred from thefollowing facts. While this Court did not have the benefit of a court transcript, the accused appeared by video on the occasion the Crownwithdrew the information because of the defective wording.

The accused was also aware that he had provided a blood sample to thepolice. Further, the accused was required to give a second sample after the withdrawal of the initial information and months prior to theswearing of the second information. Second, Milani identifies that an accused’s s. 11(

b) interests will be affected by the knowledge orexpectation that further charges are imminent and as discussed above, such prejudice may be inferred from the circumstances of the case.Thus, this is a case where the respondent remained subject to the judicial process and the trial judge was correct to include in her analysisthe entire period from when the first information was sworn. 2. Waiver [33] The Crown argues that the trial judge did not truly turn her mind to whether the respondent waived delay for any of the

adjournments that he caused or requested. The trial judge concluded that there was nothing “in the evidence or in the information provided to this Court that allows for a conclusion that the accused understood the s. 11 (

b) guarantee existed, understood the nature of the guarantee or the impact any waiver would have on those rights” (see para. 29). [ 34 ] As stated above, the Crown bears the burden of showing that a waiver should be inferred (see also R v MacIntosh , 2011 NSCA 111 , 281 CCC (3d) 291, aff’d 2013 SCC 23 , [2013] 2 SCR 200). The Crown’s submissions do not point to any particular instance where it was felt that the Court should infer waiver.

I would note here that the endorsements relating to the various court appearances in Provincial Court by the respondent do not indicate that the respondent waives delay, nor is there a specific box on the endorsement sheet that can be checked to confirm that the respondent waives delay. The criminal jury pre-trial conference report completed by the pre-trial judge and the endorsement relevant to the pre-trial conference also do not contain any reference to waiver. I cannot say that the trial judge erred by finding no instances of waiver in this case. The Crown has simply not met its burden in this regard. 3.

Inherent delay [ 35 ] The Crown contends that the two-month period between the scheduling of the preliminary hearing date and the hearing date itself should be considered inherent delay and not institutional delay (June 5–August 13, 2012).

This position has some support from the case of R v Ralph , 2014 ONCA 3 , 313 OAC 384 [ Ralph ] , in which case the Ontario Court of Appeal considered at para. 8 that, “[a]t least some of the delay has to be attributed to the time necessary for the defence to review the disclosure and prepare for the preliminary inquiry.” The Court considered four months to be necessary for review and preparation, but that case was more complex which included a large amount of disclosure as the offences were committed during the course of an undercover operation.

In this case, the only preparation that was required by defence counsel, in his limited role at that time, was for the cross-examination of the complainant. [ 36 ] Therefore, to reflect the holding from Ralph and the limited preparation required by the defence for the preliminary hearing, I would attribute one month of this period to inherent delay. [ 37 ] The Crown also challenges the designation of the time between January 2013 to September 2013 as institutional delay and not inherent delay. The Crown submits that this was a fairly complex case which tentatively required a five-day jury trial to resolve.

The complex nature of the case combined with there being no evidence that the respondent wanted an earlier date means, according to the Crown, that the total period from the consent committal to trial (January 17, 2013) to the date for the pre-trial motion (September 20, 2013) should be classified as inherent delay and not institutional delay. [ 38 ] I disagree with the Crown’s submissions. The respondent was committed for trial by judge and jury at the judicial centre of Melfort on January 17, 2013. The pre-trial conference date is set in conjunction with the parties’ readiness for trial.

A five-day jury trial in any judicial centre would be difficult to schedule. In my view, the nine-month delay, which includes the two summer months when jury trials would not be held, is institutional delay. The trial dates set at the pre-trial conference would be those when the system can first accommodate the parties. [ 39 ] This fact was acknowledged by the Crown prosecutor who had carriage of this file. She appeared at the pre-trial conference.

The prosecutor, in the brief of law prepared for the trial judge on this issue, would have added even more time to institutional delay than was allocated by the trial judge. At para. 64 of the brief the Crown prosecutor noted: 64. Institutional delay is almost entirely from the date of the consent committal to the proposed trial dates, and accounts for 10.5 months, from January 16 to November 4 of 2013. There is no indication that Mr. Scott requested at an earlier date, despite being remanded in custody.

No earlier dates were offered, but they were not requested. [ 40 ] Therefore, I would not interfere with the trial judge’s assessment that the period from January 17, 2013 to September 20, 2013 was institutional delay and not inherent delay as proposed by the Crown. [ 41 ] Finally, the Crown argued that no delay was attributed to intake requirements on the first information. Indeed, the trial judge attributes the period from October 21, 2010 to February 8, 2011 entirely to the Crown.

In R v Lee , 2015 SKCA 53 at para 52 , 457 Sask R 284 [ Lee ], it was found that 1.5 months “would also reflect the common intake requirements necessary when a person is arrested and charged.” Further, this Court in R v Wilson , 2013 SKCA 128 at para 31 , [2014] 2 WWR 26 [ Wilson ], found that a period of 1.2 months for intake requirements was of reasonable duration. Therefore, I would also attribute an additional one month of this period to inherent delay instead of to the Crown. 4.

Actions of the accused [ 42 ] The Crown argues that since delay was caused by a change in counsel, it should be attributed to the respondent. Delays taken to reflect an intention on the part of the accused to change counsel is attributed to the accused (see Morin at 793). Adjournments or other delays incurred so that the accused can retain counsel are inherent delays (see Morin at 804). [ 43 ] Until January 16, 2012, the respondent was represented by Legal Aid, on which date he requested an adjournment so that he could pursue a particular lawyer from Alberta.

The matter was adjourned until April 3, 2012, at which date the respondent indicated that he was unable to obtain the counsel of his choice and was still seeking to retain counsel. I agree that this delay was incurred because of a change or attempted change in counsel. Therefore, I would attribute this 2.5-month period to the respondent. [ 44 ] Finally, the Crown also questions why the respondent was not held responsible for the entire time between preliminary dates, when the adjournment was requested by the respondent.

The trial judge acknowledged that the respondent caused a delay, but only attributed to him 1.5 months when the time between the hearings was just over two months (August 13–October 17, 2013). I am unable to explain this discrepancy and I would attribute the entire two-month period to the respondent. 5. Actions of the Crown

[ 45 ] As I have found above, the trial judge misattributed the delays from October 21–November 21, 2010 to the Crown when it was inherent delay. [ 46 ] The Crown is also correct in their submission that the time between October 2 and October 17, 2012 was improperly attributed to them. The Crown asked that the October 17, 2012 preliminary hearing date be postponed on October 2. Therefore, the delay period does not actually start until October 17. This period in between should not be attributed to the Crown. 6.

Institutional delay [ 47 ] Also, as found above, one month between June 5, 2012 and August 13, 2012 should rather be seen as inherent delay. Reference can be made to the nine-month period between January and September of 2013 which was properly classified as institutional delay. [ 48 ] In any event, this does not change the trial judge’s conclusions that the period of institutional delay was within the Morin guidelines and not problematic. 7. Prejudice [ 49 ] At para. 67 of her decision, the trial judge finds that actual prejudice has resulted from the delay.

First, she finds that the respondent’s liberty interest has been impacted. I would agree. This Court has found that even bail conditions can be particularly restrictive (see Lee at para 74 ). The respondent in this case had been in remand on this matter since January 31, 2012. It was a serious restriction on his liberty. However, as correctly pointed out by the Crown, the respondent’s conduct may “negative” prejudice.

The respondent did state that he did not mind being in remand and he took no concrete steps to obtain bail apart from an application for a Detention Review Hearing pursuant to s. 525 of the Criminal Code . While no hearing ever resulted, it displays the respondent’s dissatisfaction with his incarceration. [ 50 ] The trial judge’s remarks regarding security of the person appear to not be entirely clear. In para. 65, the trial judge concludes that the respondent’s feeling of emptiness is attributable to being subject to charges rather than the delay. That ended her analysis.

However, in para. 64, commenting on the fact that the accused had been stabbed 13 times in prison, she stated that “it is plain that the longer the accused is in custody, the greater the opportunity for others to harm the accused.” This fact is conspicuously absent from the trial judge’s analysis and I find it unreasonable to not consider physical security as well as psychological security. Based on this information, I would find this interest to be seriously impacted.

I do not think that the respondent’s statement, which claims that he was content to be in custody, to be as significant when there is actual evidence that his bodily security had been repeatedly violated during the course of the delay. [ 51 ] Finally, the trial judge inferred prejudice to the respondent’s ability to make full answer and defence. Specifically, she found that “it can be inferred that memories of those who may testify during the trial are not as sharp as they would have been closer to the alleged events” (see para 66).

In R v Godin , 2009 SCC 26 , [2009] 2 SCR 3 [ Godin ], the Court noted that there was a risk to the appellant’s ability to make full answer and defence because the case was likely to turn on credibility, and, in particular, on cross- examination of the complainant and her boyfriend (see para 36). However, in the immediate case, the guilt of the respondent can essentially be established by DNA evidence alone. Therefore, it is difficult to conceive a scenario where delay would impact the defence’s ability to counter such evidence.

As the Crown pointed out, evidence of this kind is not subject to change or degradation over time. Yet, the testimony of the complainant is still relevant, and assuming weaknesses are found in the DNA evidence, testimony proffered by the defence may still hold probative value.

Further, at approximately 43 months, the length of the delay alone may allow for prejudice to be inferred (see Godin at paras 29–38 ; Morin at 801–803; see especially R v Pidskalny , 2013 SKCA 74 at para 44 , 417 Sask R 124 [ Pidskalny ]). [ 52 ] The standard of review when it comes to reviewing the trial judge’s findings regarding prejudice suffered by an accused was set out in Pidskalny .

At para. 12, Caldwell J.A. noted that “whether the balancing component of the judge’s decision with respect to the resulting prejudice was reasonable … is a decision entitled to deference.” Further, at para. 43 under the prejudice heading, Caldwell J.A. states that, “[g]iven the standard of review, I can find no reviewable error in the judge’s assessment of prejudice in this case.” Implicitly, the findings of the trial judge when it comes to prejudice, are deserving of deference. In light of the standard of review, I will not interfere with the trial judge’s finding of prejudice to the respondent. C.

Balancing [ 53 ] I would attribute the following periods of delay, taking into account the small adjustments identified above. The actions of the respondent are responsible for approximately 12.5 months of the delay. Fourteen-and-a-half months should be attributed to the Crown and there was approximately ten months of institutional delay, which is within the guidelines, and between 6 and 7 months is inherent delay.

The Crown is therefore responsible for over one-third of the overall delay while the respondent is responsible for less than one- third of the 43-month delay. [ 54 ] As noted earlier, while the trial judge’s reference to the whole 43-month period was overly inclusive, it is clear from her reasons and the decision that she found the delay attributable to the Crown to be unreasonable and to weigh more heavily in the balance than societal interest in seeing the matter adjudicated on its merits. [ 55 ] Furthermore, at para. 79 of her reasons the trial judge noted: “[s]ociety has a clear interest in ensuring that criminal allegations of a sexual nature involving a child are adjudicated.

The allegations are unquestionably of a serious nature….” This statement thwarts the suggestion made by the Crown that the trial judge undervalued the seriousness of the offence in this case.

[ 56 ] In sum, the trial judge took full recognition of the requisite factors in rendering her decision. Therefore, I must defer to the balancing done by the trial judge. Indeed, in R v Walker , 2013 SKCA 95 , 423 Sask R 125, this Court refused to alter the balancing performed because “[t]he trial judge was aware of and properly stated … the governing principles on the balancing of interests” (see para 41; see also Pidskalny at para 45 ; and Lee at para 75 ). VII. conclusion [ 57 ] The appeal is dismissed. “Herauf J.A.” Herauf J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Caldwell J.A.” Caldwell J.A.