R v Watetch, 2022 SKCA 91

Court of Appeal for Saskatchewan Docket: CACR3421 Citation: R v Watetch , 2022 SKCA 91 Date: 2022-08-10 Between: Her Majesty the Queen Appellant And Kelfert Watetch Respondent Before: Richards C.J.S., Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Mr. Justice Kalmakoff On appeal from: 2020 SKPC 54 , Prince Albert Appeal heard: January 17, 2022 Counsel: Erin Bartsch for the Appellant Jock Kriegler for the Respondent Richards C.J.S. I.

INTRODUCTION [ 1 ] Kelfert Watetch was charged with aggravated assault and assault with a weapon. The Crown advised that it would be seeking a dangerous offender designation if Mr. Watetch was convicted. [ 2 ] Mr. Watetch then brought a Charter application. A Provincial Court judge [Trial Judge] found there had been an abuse of process and a resulting breach of Mr. Watetch’s rights as guaranteed by s. 7 of the Charter . The Trial Judge also found that Mr. Watetch’s right under s. 11(

a) of the Charter to be informed of a charge without unreasonable delay had been violated. By way of a remedy, the Trial Judge ordered that all “recognition evidence” should be excluded. This led to Mr. Watetch being acquitted of both assault charges. See: R v Watetch , 2020 SKPC 54 [ Trial Decision ]. [ 3 ] The Crown appeals the acquittals, arguing that the Trial Judge made several errors in law in coming to her decision. As explained below, I would allow the Crown’s appeal and direct a new trial. II. BACKGROUND [ 4 ] At all times relevant to this appeal, Mr.

Watetch was an inmate at the Saskatchewan Penitentiary in Prince Albert. [ 5 ] In June of 2018, Mr. Watetch was charged with second-degree murder in connection with the death of a fellow inmate during a riot at the Penitentiary. [ 6 ] Approximately six months later, on December 30, 2018, Dakota Asapace, also an inmate at the Penitentiary, was assaulted by a group of individuals. Mr. Watetch was identified as a suspect. On December 31, 2018, Cst. Schmidt, a member of the Prince Albert RCMP, received a report from the Penitentiary about the assault. He went to the hospital to speak to Mr. Asapace but Mr.

Asapace refused to cooperate with the investigation. [ 7 ] On January 3, 2019, Cst. Schmidt received a package of evidence gathered by the Security Intelligence Officer [SIO] at the Penitentiary. He reviewed those materials five days later and determined that he needed an “officer recognition report” to be sure there was a Penitentiary guard who could identify Mr. Watetch as one of the individuals shown assaulting Mr. Asapace in the surveillance video. He emailed the SIO and asked for such a report. [ 8 ] On January 13, 2019, Cst.

Schmidt became the lead investigator in a drive-by shooting that had occurred in a different community. That investigation was a high priority and it ended up consuming Cst. Schmidt’s attention for several months. On May 27, 2019, Cst. Schmidt returned to the Asapace file. He reviewed it and realized that he still did not have the officer recognition report. He requested the report again and received it on June 27, 2019. Constable Schmidt then reviewed the report and satisfied himself that there was enough information to prove Mr. Watetch was one of the individuals who had attacked Mr.

Asapace. [ 9 ] On July 22, 2019, Cst. Schmidt swore an information charging Mr. Watetch with the offences of aggravated assault and assault with a weapon in connection with the Asapace incident. [ 10 ] Constable Schmidt testified that, when an information is sworn against an inmate of the Penitentiary, the inmate is not arrested. Rather, the RCMP provides its disclosure to the Crown and the Crown seeks a production order obliging the Penitentiary to have the inmate appear in court.

The inmate learns about the particulars of the charges when they are read in court or, sometimes earlier, when fingerprints are taken. [ 11 ] Mr. Watetch did not call evidence to establish when he first learned about the assault charges. Constable Schmidt testified that he usually provides an inmate with a copy of the information when he takes fingerprints in advance of the inmate’s first court appearance.

However, Cst. Schmidt could not recall whether he personally had taken Mr. Watetch’s fingerprints in this case. In any event, Mr. Watetch was notified of the assault charges when they were read to him on his first appearance in court on August 14, 2019. The proceedings were then adjourned for one month. On the return date, Mr. Watetch was represented by counsel who indicated that she had requested disclosure and was waiting to receive it. [ 12 ] In the meantime, Mr. Watetch had also been dealing with the second-degree murder charge.

On May 2, 2019, he entered a guilty plea to the lesser-included offence of manslaughter. On June 11, 2019, he was given a sentence of ten years’ imprisonment. [ 13 ] In August of 2020, a year after his first appearance on the Asapace assault charges, Mr. Watetch filed a notice of constitutional question advising of a Charter challenge. In it, he asserted that his right under s. 11(

a) of the Charter to be informed without unreasonable delay of the charges concerning Mr. Asapace had been infringed by the delay between the date those offences had allegedly been committed, December 30, 2018, and the date when the information had been sworn, July 22, 2019. The notice also argued that this pre- charge delay had resulted in an abuse of process amounting to a breach of s. 7 of the Charter . [ 14 ] In an affidavit submitted in connection with the Charter application, Mr. Watetch indicated that he had been aware of the assault on Mr.

Asapace, but had been unsure whether he would be charged criminally in connection with it. He indicated that “I wanted to be certain that there were no criminal charges pending for this incident or other incidents before I entered a guilty plea and gave up my right to trial with regard to the December 2016 incident” (at para 10). [ 15 ] Mr. Watetch then went on in his affidavit to aver as follows: 11. My lawyer, Brian Pfefferle, advised me that the Crown Prosecutor had told him that there were no pending charges. 12.

When I changed my plea to guilty to the lesser-included offence of manslaughter, it was on the understanding that the prosecution would not be proceeding with a

Part XXIV application for either Dangerous Offender status or Long-Term Offender status. 13. I would not have made the decision to change my plea from not guilty to guilty to a lesser-included offence if I had known that there were outstanding or pending charges as I was very concerned about the Crown seeking a

Part XXIV application for either Dangerous Offender status or Long-Term Offender status. 14. On 22 July 2019, I was charged with aggravated assault and assault with a weapon for the incident that occurred in the Saskatchewan Penitentiary on 30 December [2018]. 15. I was very upset to learn about these charges as I had specifically asked about whether there were any pending charges before changing my plea and proceeding to sentence. 16. … My lawyer was initially Loretta Markowski. After speaking to the Crown prosecutor in March of 2020, Ms. Markowski advised me that the Crown was seeking a

Part XXIV application for Dangerous Offender status with regard to these new charges. [ 16 ] The prosecutor took exception to paragraph 11 and disputed that Mr. Watetch had been told there were no pending charges. The Trial Judge proceeded on the basis that paragraph 11 would not be received for the purpose of proving the truth of its contents but, rather and apparently, as Mr. Watetch’s explanation for why he had proceeded as he had done in relation to the manslaughter guilty plea. Later, in cross-examination on the affidavit, Mr.

Watetch testified as follows: A And he was supposed to be looking into whether I had charges pending and everything, right. Q Okay. But at that time you had decided we're not going to trial anymore I'm going to plead guilty to this? A Well, once I -- I -- okay, my thing was to him -- this is what I told my lawyer. I told him, can you find out if I have any outstanding charges or charges pending. Q Yes. A And he said he would look into it. Q Yes. A Right? So that's what he was doing. And then when he came back to me he told me that there was no charges pending and then we moved forward with the guilty plea.

Q Right. So he probably then -- is it fair to say he had this conversation or figured out that there was no pending charges before March 15th? A Yeah. III. THE TRIAL JUDGE’S DECISION [ 17 ] The Charter challenge was dealt with by way of a voir dire . Both Cst. Schmidt and Mr. Watetch testified. [ 18 ] The Trial Judge began her decision by laying out the background facts and what she saw as being the relevant legal principles. [ 19 ] The Trial Judge then turned to the “Analysis” part of her decision. She noted Mr.

Watetch’s concession that the pre-charge delay had not compromised his right to a fair trial on the charges concerning Mr. Asapace. She also noted that there had been no promise that Mr. Watetch would not be charged in the Asapace matter if, with respect to the second-degree murder charge, he pled guilty to

manslaughter. She said that there had been no quid pro quo in this regard. That done, the Trial Judge went on to find there had been anabuse of process and that Mr. Watetch’s rights as guaranteed by s. 7 of the Charter had been violated as a consequence. I understand her tohave reasoned that the abuse of process had resulted from the combined effect of (

a) the pre-charge delay in laying the charges arisingfrom the Asapace matter which, in turn, had led Mr. Watetch to believe, when he had pled guilty to manslaughter, that no such chargeswould be laid, (

b) the SIO’s delay in providing Cst. Schmidt with an officer recognition report, (

c) the low priority placed on the Asapaceinvestigation, and (

d) the failure of the Crown to make broader inquiries about whether the Asapace matter had been referred to theRCMP. [20] The Trial Judge concluded her assessment of the abuse of process issue by writing as follows: [45] The accused ceded his right to a trial in the face of what he interpreted as an implicit promise that he would not be chargedcriminally in the incident before the court. After the appeal period in the earlier case had expired, he was charged nonetheless, increasinghis legal jeopardy and severely weakening his bargaining position.

These actions were not in any way driven by the alleged victim of theoffence, who is not involved in this process, but by state authorities. [46] This case is somewhat akin to R v Demers (1989), (QC CA), 49 CCC (3d) 52 (Que CA), in which policearrested the accused for robbery, but promised not to charge him if he aided in a murder investigation. He agreed, but during thatinvestigation, Mr. Demers was himself charged in the murder. He was eventually acquitted of murder, then police charged him with theoriginal robbery.

Even though the two charges were unrelated, the Quebec Court of Appeal found that to be an abuse of process anddirected a stay of proceedings. [47] Similarly, I find there has been a breach of Mr. Watetch’s

section 7 right not to be deprived of liberty and security of the personexcept in accordance with the principles of fundamental justice. … [21] Next, the Trial Judge considered s. 11(

a) of the Charter. She wrote that the sole reason for the 23-day delay in advising Mr.Watetch that he had been charged was Cst. Schmidt’s failure to seek process from the issuing justice when he swore the information. Inthe Trial Judge’s view, although the delay was not lengthy, it had resulted in prejudice to Mr. Watetch. The Trial Judge said that “[h]e hadno opportunity to consult with counsel before his first court appearance, and his window of opportunity to appeal the manslaughterconviction expired. Although the delay was not lengthy, it was unreasonable” (at para 48). In the end, she saw Mr. Watetch’s situation as“an example of the systemic violation of

section 11(a)” (at para 52). [22] Finally, the Trial Judge addressed the issue of remedy. In this regard, she noted that no evidence had been led to show systemicpre-charge delay in the Penitentiary setting. In her view, the conduct giving rise to the related Charter breach was a matter ofmiscommunication, not malevolence. On the other hand, the Trial Judge said Mr. Watetch’s position could not be restored to its pre-breach state because he had been sentenced on the manslaughter charge and the relevant appeal period had long expired.

The Trial Judgereasoned that it was the delay in furnishing the officer recognition report to Cst. Schmidt that had caused the prejudice to Mr. Watetch,that the identification evidence had been obtained in a manner that infringed Mr. Watetch’s rights and that admitting the evidence wouldbring the administration of justice into disrepute. She concluded that excluding “the recognition evidence” would adequately remedy thebreach of Mr. Watetch’s Charter rights. [23] As a result of the Trial Judge’s order in relation to the “recognition evidence”, the Crown had no evidence with respect toidentity and Mr.

Watetch was acquitted of both the charge of aggravated assault and the charge of assault with a weapon. IV. ANALYSIS [24] As indicated, the Crown submits the Trial Judge erred in her analysis of Mr. Watetch’s situation. [25] I will consider the s. 7 and s. 11(

a) issues in turn. A. Was there a breach of s. 7 of the Charter? [26] As will be recalled, the Trial Judge found that there had been an abuse of process resulting in a breach of Mr. Watetch’s rightsas guaranteed by s. 7.

The Crown submits that she erred in so doing. [27] Before dealing with the particulars of the s. 7 problem presented by this case, it will be useful to highlight the legal principlesunderpinning the concept of abuse of process. [28] In R v Jewitt, (SCC), [1985] 2 SCR 128 [Jewitt], the Supreme Court confirmed that a trial court had a “residualdiscretion” to stay proceedings in order to remedy an abuse of process.

It held that the common law doctrine of abuse of process wasapplicable in limited situations “where compelling an accused to stand trial would violate those fundamental principles of justice” (at 136–137). [29] The common law doctrine was initially seen as being distinct from Charter considerations. However, in R v O’Connor, (SCC), [1995] 4 SCR 411 [O’Connor], the Supreme Court held that, given the considerable overlap between the Charter andthe common law, the two regimes should be merged under s. 7 of the Charter.

As L’Heureux-Dubé J. observed, “[t]he principles offundamental justice both reflect and accommodate the nature of the common law doctrine of abuse of process” (at para 71). JusticeL’Heureux-Dubé also noted that, depending on the circumstances, an alleged abuse of process might engage a particular Charter rightand, in such situations, is best addressed in the context of that right. [30]

Section 7 of the Charter comprehends two categories of abuse of process. The first is concerned with the protection ofindividual rights and fairness of the individual accused’s trial. The second is a residual category. It relates, not to trial fairness or theimpairment of rights enumerated in the Charter, but rather to what L’Heureux-Dubé J. referred to in O’Connor as “the panoply of diverse

and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness orvexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process”(at para 73). [31] Mr. Watetch concedes that the matters of which he complains in this appeal had no impact on trial fairness or on his ability tomake full answer and defence.

Accordingly, to the extent this appeal concerns an abuse of process, it involves the second, or residual,category of abuse of process identified in O’Connor. [32] In R v Babos, 2014 SCC 16, [2014] 1 SCR 309, the Supreme Court described the inquiry mandated by the residual category ofthe abuse of process doctrine in these terms: [35] … when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societalnotions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of thejustice system.

To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. Attimes, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice systemcondones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. … [33] The typical remedy for an abuse of process is a stay of proceedings. Remedies less drastic than a stay are available under s.24(1) of the Charter.

However, the Supreme Court has said this does not mean that an abuse of process in the Charter context can bemade out by showing a lesser degree of harm to the integrity of the justice system than was required in connection with the common lawdoctrine (R v Nixon, 2011 SCC 34 at para 38, [2011] 2 SCR 566 [Nixon]). [34] The test for establishing an abuse of process is demanding.

It was expressed as follows in R v Power, (SCC),[1994] 1 SCR 601 at 615–616 [Power]: I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court’s process but only in the“clearest of cases”, which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to theproper administration of justice that it warrants judicial intervention.

To conclude that the situation “is tainted to such a degree” and that it amounts to one of the “clearest of cases”, as the abuse of process hasbeen characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the point thatthey are contrary to the interest of justice. … [35] R v Anderson, 2014 SCC 41, [2014] 2 SCR 167, is also instructive on the question of what constitutes an abuse of process.There, the Court summarized the test as follows: [49] The jurisprudence pertaining to the review of prosecutorial discretion has employed a range of terminology to describe the type ofprosecutorial conduct that constitutes abuse of process.

In Krieger, this Court used the term “flagrant impropriety” (para. 49). In Nixon, theCourt held that the abuse of process doctrine is available where there is evidence that the Crown’s decision “undermines the integrity ofthe judicial process” or “results in trial unfairness” (para. 64).

The Court also referred to “improper motive[s]” and “bad faith” in itsdiscussion (para. 68). [50] Regardless of the precise language used, the key point is this: abuse of process refers to Crown conduct that is egregious andseriously compromises trial fairness and/or the integrity of the justice system. … [36] Under the residual category of cases, prejudice to the accused’s interests, although relevant, is not determinative.

In most cases,the accused will need to demonstrate that they were prejudiced by prosecutorial conduct in order to make out an abuse of process.However, as explained in Nixon, prejudice under the residual category is “better conceptualized as

an act tending to undermine society’sexpectations of fairness in the administration of justice” (at para 41). [37] Further, it should be noted that prosecutorial misconduct or improper prosecutorial motive are not essential elements of anabuse of process. Rather, they are factors – obviously important factors – to be considered in deciding when an abuse of process has beenmade out. See: Nixon at para 40; Jewitt at 136–137. [38] With that doctrinal background in place, I turn now to the decision of the Trial Judge.

As noted above, she saw a number offactors as somehow, in combination, amounting to the sort of “unfairness or vexatiousness” that contravenes fundamental notions ofjustice and thus undermines the integrity of the judicial process (Trial Decision at para 44). As I understand it, those factors were: (

a) thefact that, because of the delay in laying charges in connection with the assault on Mr. Asapace, Mr. Watetch believed, when he pled guiltyto manslaughter in connection with the second-degree murder charge, that he would not be charged in connection with the Asapaceincident; (

b) the unexplained failure of the SIO to provide Cst. Schmidt with a timely response to his request for an officer recognitionreport; (

c) the low priority given by Cst. Schmidt and the RCMP to the investigation into the assault on Mr. Asapace; and (

d) the “failureby the Crown to inquire from the RCMP or the penitentiary as to whether any internal matters had been referred to the RCMP for thepurpose of laying criminal charges”. The Trial Judge concluded that “[t]his chain of events led to an unfairness which tarnishes theintegrity of the justice system” (at para 44). [39] In order to get to the root of the abuse of process issue in this case, it is necessary to disaggregate the factors considered by theTrial Judge. Let me begin with the actions of Cst. Schmidt and the SIO that led to the delay in charges being laid in connection with theAsapace assault.

In this regard, it is well established that a delay in charging and prosecuting an individual cannot, without more, create anabuse of process. “An accused’s rights are not infringed solely because a lengthy delay is apparent on the face of the indictment” (R v L.(W.K.), (SCC), [1991] 1 SCR 1091 at 1100). Thus, the delay in issue here was not itself a factor weighing in favour offinding there had been an abuse of process. [40] The authorities also establish that investigatory delay or investigatory inefficiency, in and of itself, is not a basis for finding anabuse of process.

In R v Hunt, 2017 SCC 25 at para 1, [2017] 1 SCR 476, the Supreme Court allowed an appeal from the Court of Appealfor Newfoundland and Labrador “substantially for the reasons of Hoegg J.A. [who had written in dissent in the Court of Appeal]”. See: R

v Hunt, 2016 NLCA 61, 33 CR (7th) 321 [Hunt CA]. That case concerned a situation where four men had been charged with multiplecounts of fraud and related offences arising out of a complicated bankruptcy. The investigation into their alleged wrongdoing had begun in2002 but charges were not laid until 2012. They applied for a stay of proceedings based on an argument that their rights under s. 7 of theCharter had been violated because of the slowness of the investigation. Justice Hoegg rejected that line of argument.

She declined to saythat there could never be a case where the exercise of Crown discretion to lay a criminal charge after a lengthy investigation wouldconstitute an abuse of process (Hunt CA at para 97). However, at the same time, she also said that “[t]he notion that delay, in the absenceof jeopardy to fair trial rights, Crown misconduct, or oppressive Crown conduct, can result in the staying of serious criminal charges, isvery disturbing to me” (Hunt CA at para 99) and that “judicial scrutinizing of an investigation for efficiency is, in my view, neitherrequired nor appropriate.

In my opinion, it is not part of the judicial role” (Hunt CA at para 104). [41] It follows from all of this that the delay resulting from Cst. Schmidt’s failure to push the investigation forward and from theSIO’s failure to provide the identification report on a timely basis were not, in and of themselves, a ground for finding an abuse of process. [42] I turn next to the Trial Judge’s reference to a failure by the Crown to make inquiries of the RCMP and the Penitentiary aboutwhether matters relating to the Asapace assault had been referred to the police for the purpose of laying charges.

This consideration sits onsomewhat shaky factual ground. Mr. Watetch did not call his former lawyer, Mr. Pfefferle, to testify as to the question or questions Mr.Pfefferle had asked the Crown with respect to “outstanding charges” or “charges pending”. In this regard, it appears that Mr. Pfefferle didnot ask, in direct terms, whether charges would be laid in relation to the Asapace assault. Nor did Mr. Watetch have Mr. Pfefferle sharewith the Court the answers that he had received to those questions from the Crown. The Trial Judge was seemingly unfazed by this andwas prepared to ground her decision solely on Mr.

Watetch’s perception of what had happened. She found, for example, that on being toldcharges were not pending, Mr. Watetch “understood that to mean he would not be charged in the [Asapace] incident” (at para 25). Moresignificantly for present purposes, there was no evidence before the Trial Judge as to who, if anyone, the person questioned by Mr.Pfefferle about outstanding charges had in turn approached, or not approached, before replying to Mr. Pfefferle.

At best, the Trial Judge’sassumption that the Crown did not make inquiries of the RCMP or the Penitentiary about outstanding charges was an inference that shechose to draw. [43] In the end, therefore, and putting Mr. Watetch’s position as fairly as possible, this case reduces to a question of whether therewas an abuse of process when, believing no charges would be laid in relation to the Asapace assault, Mr. Watetch pled guilty tomanslaughter in circumstances where his understanding of the status of the Asapace-related charges was wrong because of Cst. Schmidt’sdelay in laying those charges.

In my view, the answer to that question is clearly “no”. There was no abuse of process. Let me explain. [44] To begin, the Trial Judge erred in relying on R v Demers (1989), (QC CA), 49 CCC (3d) 52 (Que CA), a casethat she saw as being “somewhat akin” to this one. The facts in Demers were fundamentally different than here. Mr. Demers was arrestedon a robbery charge. The police offered to stay proceedings in connection with the robbery if Mr. Demers cooperated in an investigationinto the murder of one Mr. Vallée. During those negotiations, the police refused to let Mr. Demers contact his lawyer. Mr.

Demersaccepted the police offer and the police then asked for time to have it approved by the Deputy Chief Crown Attorney. The Deputy Chiefconsented and Mr. Demers gave a statement about the murder that implicated two individuals. They were arrested and charged withmurder of Mr. Vallée. Meanwhile, the police also arrested and charged Mr. Demers with the murder. He was ultimately acquitted on themurder charge. Then, despite the absence of a warrant of committal, Mr.

Demers was returned to jail and arraigned the next day on thesame charge of robbery that had been the subject of his original agreement with the police and the prosecutorial authorities. It was againstthis factual background that the robbery charges were stayed. As is obvious, unlike this case, Demers featured, among other things, thedeliberate violation by the police and the prosecutorial authorities of an agreement not to proceed with specific charges. Here, the TrialJudge herself found, at paragraph 44 of her decision, there was no such agreement and Mr.

Watetch does not suggest that there was everan active or conscious attempt to mislead him. [45] Overall, the situation involving Mr. Watetch simply does not exhibit the character of something rising to the level of an abuseof process. There is no Crown conduct that can be properly described, as per Power, as something that “shocks the conscience of thecommunity and is so detrimental to the proper administration of justice that it warrants judicial intervention” (at 615) or that, as per Nixon,“undermines the integrity of the judicial process” (at para 36).

Constable Schmidt did not act in bad faith or make misrepresentations orattempt to mislead. On January 13, 2019, he became the lead investigator on a complex file involving a drive-by shooting that hadwounded a young child. The perpetrators were at large in the community and posed a risk of further gang violence. Constable Schmidtexplained that the investigation “involved all of [his] time”. He said, “[W]e interviewed over a hundred witnesses” and he testified that theRCMP had dealt with surveillance, the interception of communications, undercover operations, witness and informant safety issues, andmore.

Constable Schmidt was responsible for “managing every aspect of the investigation”. From his perspective, “[t]here was things thatjust kept coming up that had to be dealt with, that couldn’t be put on the backburner”. This was the environment in which, in his words,Cst. Schmidt got “quite sidetracked for several months”. Seen in context, Cst. Schmidt’s failure to monitor the Asapace file wasunfortunate, but it was not something that brought the criminal justice system into disrepute. [46] The Crown did not, in any way, tie Mr.

Watetch’s manslaughter guilty plea agreement to possible charges relating to the assaulton Mr. Asapace. Those two matters proceeded on tracks wholly independent of each other. I accept that Mr. Watetch would have tried tonegotiate a more comprehensive plea arrangement if all of the charges ultimately laid against him had been on the table when he enteredhis manslaughter guilty plea. However, that does not mean there was an abuse of process. [47] In closing on this issue, I note that there is a question here about whether Mr. Watetch is raising his abuse of process concernsin the proper legal context.

The point is this: if Mr. Watetch’s complaint is that he pled guilty to manslaughter on the basis of amisunderstanding caused by the Crown, then one might think that he should be attempting to upset the manslaughter conviction or,alternatively, taking issue with such dangerous offender proceedings as might be commenced to the extent those proceedings are based onthe manslaughter conviction. However, this issue was not pressed by the Crown and therefore I do no more than flag it. I also note herethat the Trial Judge and Mr.

Watetch seem to have proceeded on the basis that, because the appeal period with respect to the manslaughterconviction had expired, that conviction was somehow untouchable. This, of course, is not true. Mr. Watetch could have applied to extendthe appeal period with respect to the manslaughter conviction. [48] By way of a bottom line, I conclude the Trial Judge erred in finding that Mr. Watetch’s s. 7 rights were violated.

B. Was there a breach of s. 11(

a) of the Charter? [49] As noted, the Trial Judge also found that Mr. Watetch’s rights under s. 11(

a) of the Charter had been offended. The Crownsubmits that she erred on this wing of her analysis as well. [50]

Section 11(

a) provides that “[a]ny person charged with an offence has the right…to be informed without unreasonable delay ofthe specific offence”. The key protection provided by s. 11(

a) is the right to be notified of the specific offence in issue. Such notice allowsan accused person to begin taking the steps necessary to make full answer and defence – speaking to witnesses, assembling evidence, andso forth. The second interest protected by s. 11(

a) is the right to be informed without unreasonable delay. This aspect of s. 11(

a) has alsobeen consistently seen as being concerned with protecting an accused person’s ability to make full answer and defence. See, for example:R v Cisar, 2014 ONCA 151 at para 12, 307 CCC (3d) 336 [Cisar]; R v Delaronde, (QC CA), [1996] QJ No 535 (QL)(Que CA) [Delaronde CA]. That said, I note that, in R v Delaronde, (SCC), [1997] 1 SCR 213 [Delaronde], LamerC.J.C. added an addendum to the Supreme Court’s endorsement of Delaronde CA to make it clear that a person charged with an offencecan advance an infringement of their s. 11(

a) right where economic prejudice was proven. [51] In her assessment of the s. 11(

a) issue, the Trial Judge quite properly focussed on the 23-day period between July 22, 2019,when Cst. Schmidt swore the information charging Mr. Watetch with the assaults in issue, and August 14, 2019, when those charges wereread out to him in court. The Trial Judge wrote as follows: [48] … The sole reason for the 23-day delay was Constable Schmidt’s failure to seek process from the issuing justice when he sworethe Information. Identifying and locating the accused was not difficult or time-consuming. He was in federal custody. Although the delaywas not lengthy, it resulted in prejudice to Mr.

Watetch, especially on top of the pre-charge delay. He had no opportunity to consult withcounsel before his first court appearance, and his window of opportunity to appeal the manslaughter conviction expired. Although thedelay was not lengthy, it was unreasonable. [52] In my view, there is a basic problem with the Trial Judge’s s. 11(

a) analysis that renders her conclusions unsustainable. Shebegan solidly enough by citing Delaronde. There, the Supreme Court dismissed an appeal from a decision of the Quebec Court of Appeal“[f]or the reasons of Otis J.A.” (at para 1). The Court thereby appears to have endorsed Otis J.A.’s conclusion about the factors bearing onthe question of whether delay in informing an accused person of the charges against them resulted in a violation of s. 11(a). She describedthose considerations as being (

a) the length of the delay, (

b) the waiver of time periods, (

c) the reasons for the delay, and (

d) prejudice tothe accused. However, having referenced Delaronde, the Trial Judge then failed to work through the relevant factors in coming to herconclusion. She noted only that Mr. Watetch had not been able to consult with counsel before his first court appearance and that the appealperiod with respect to his manslaughter conviction had expired in the interim. A more complete analysis indicates there was no violationof s. 11(a). [53] First, as for the length of the delay, it was 23 days.

That is not problematically long on its face and 23 days is brief compared tothe delays considered in some of the leading cases in this area. For example, in Delaronde itself, the Supreme Court found no breach of s.11(

a) where an information had been laid against Mr. Delaronde but he had not been arrested until 20 months later even though theauthorities knew where he lived. In Cisar, the Court of Appeal for Ontario found no breach of s. 11(

a) in circumstances where aninformation was sworn charging Mr. Cisar in 1999 and the police did not arrest him until 2007 while, in the interim, failing to act oninformation as to his whereabouts and, on one occasion, interviewing him about an unrelated matter. [54] As for the second Delaronde factor going to the reasonableness of delay, the waiver of time periods, this is not a considerationone way or the other in this case. There have been no waivers. [55] The third Delaronde factor is the reason for the delay. In this regard, Cst.

Schmidt described an approach under which aninmate charged with an offence is not arrested at the Penitentiary. Rather, the RCMP provide disclosure to the Crown and the Crown thensecures a production order to have the inmate appear in court, either in person or by video. Constable Schmidt advised that inmates learnof new charges either when they appear in this way or earlier when they are fingerprinted. [56] The Trial Judge saw this delay in advising Mr.

Watetch of the assault charges very much in the context of her rather obviousconcerns about the RCMP’s general approach to letting Penitentiary inmates know of new charges. She observed that, normally when aninformation is sworn, the informant seeks an arrest warrant or a summons. With respect to a summons, the Trial Judge noted that serviceof same “would notify the prisoner of his charges and compel him to attend court at the institution on a specific date” (at para 49).

As foran arrest warrant, the Trial Judge observed that s. 29 of the Criminal Code requires that, when an arrest warrant is executed, the accusedmust be informed of the reasons for the arrest and, if they so request, they must be given a copy of the warrant. All of this led the TrialJudge to conclude that “[t]he current practice ignores these requirements in the Criminal Code, resulting in the routine violation of section11(

a) of the Charter” (at para 51). She said that forwarding the file to the local Crown to obtain a production order, while a necessary stepin a prosecution, “does not replace the procedural safeguards in the Criminal Code and the Charter” and that, although short, the delayhere was unreasonable and “an example of the systemic violation of

section 11(a)” (at paras 51–52). [57] I agree with the Crown’s submission that, by reasoning in this fashion, the Trial Judge appears to have improperly importedCriminal Code provisions, or the substance of such provisions, into s. 11(a). Moreover, she imposed, in effect, an “as soon as possible”meaning on s. 11(

a) rather than appreciating that it refers to the right to be notified of a charge without “unreasonable” delay and thenanalyzing the delay issue in the way mandated by Delaronde. [58] There is no doubt that the RCMP could have notified Mr. Watetch of the charges arising out of the Asapace assault moreexpeditiously. They could have mailed him a copy of the information. They could have reached him by telephone at the Penitentiary andread him the information or they could have visited him at the Penitentiary and given him a copy of the information.

However, the mereavailability of other, more prompt, notification options than the one chosen by Cst. Schmidt did not render the Crown’s chosen approachunreasonable. [59] The reality was that Mr. Watetch was in custody. There was no need to arrest him to ensure his attendance in court and,because he was in the Penitentiary, a production order was required to get him before a judge. I have no hesitation in saying that it would

have been preferable, in policy terms, if the RCMP had found a way to alert Mr. Watetch more quickly to the fact that the assault charges had been laid. However, I am unable to see how their decision to let the Crown seek a production order and to have the charges read in court amounted to something that points meaningfully to a violation of s. 11(a).

Section 11(

a) does not dictate how an accused person is to be notified of charges. It says only that an accused person must be advised of charges without unreasonable delay. [ 60 ] The last Delaronde factor or consideration is prejudice. It is a critical aspect of the analysis given the purpose of s. 11(a). Indeed, several authorities go so far as to expressly say that, in the absence of prejudice, there can be no s. 11(

a) breach. See: Cisar at para 22 ; R v Van Wyk (1999), 6 MVR (4th) 248 (Ont Sup Ct

J) at para 192 ; R v Felix , 2018 ABQB 128 at para 34 , 404 CRR (2d) 234; Caledon (Town) v Eagle Demolition & Excavation Inc. , 2022 ONCJ 241 at para 8 . I need not decide here whether this is the proper view of s. 11(a). It is enough to underline that prejudice is, at minimum, a central consideration in determining if there has been a breach of s. 11(a). [ 61 ] The Trial Judge said Mr. Watetch had been prejudiced because he had not been able to consult with counsel before his first court appearance. This may be true but it hardly represents anything of consequence. Mr.

Watetch appeared in Provincial Court for the first time on August 14, 2019, and, after the charges had been read, the proceedings were adjourned for one month. Mr. Watetch was represented by counsel at this next court appearance. Significantly, Mr. Watetch does not contend, in any way, that having to wait until his appearance in court to learn of the assault charges had any impact on his ability to make full answer and defence. Accordingly, the fact that Mr. Watetch first appeared without counsel did not involve any meaningful prejudice. [ 62 ] As noted above, the Trial Judge also found that Mr.

Watetch had suffered prejudice because, during the 23-day delay in advising him of the assault charges, “his window of opportunity to appeal the manslaughter conviction expired” (at para 48). This concern was ill-considered. Mr. Watetch entered a guilty plea to manslaughter on May 2, 2019. That meant the time limit for appealing the manslaughter conviction expired on June 2, 2019. See: Rule 8 of The Court of Appeal Criminal Appeal Rules (Saskatchewan) . Constable Schmidt did not swear the information charging Mr. Watetch with aggravated assault and assault with a weapon until July 22, 2019.

In other words, even if Cst. Schmidt had sworn the information and then immediately provided Mr. Watetch with a copy of it, Mr. Watetch would still have been past the deadline for appealing his manslaughter conviction. I also note here that Mr. Watetch would, in any event, have been entitled to apply for an extension of the time for appealing his conviction. The 30-day time limit prescribed by Criminal Appeal Rule 8 is not a procedural brick wall. [ 63 ] In the end, approaching the s. 11(

a) issue in the manner mandated by Delaronde , and considering the length of the delay in notifying Mr. Watetch of the assault charges, the reasons for the delay and the fact that Mr. Watetch suffered no prejudice because of the delay, I conclude that the Trial Judge erred in finding Mr. Watetch’s s. 11(

a) rights had been violated. C. Remedy [ 64 ] In light of my conclusions that Mr. Watetch’s rights under ss. 7 and 11(

a) of the Charter were not breached, I need not consider the question of whether the Trial Judge erred in her choice of remedy. V. CONCLUSION [ 65 ] I conclude that the Crown’s appeal must be allowed and a new trial ordered. “Richards C.J.S.” Richards C.J.S. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.