R v Gardener, 2023 SKCA 12

Court of Appeal for Saskatchewan Docket: CACR3587 Citation: R v Gardener , 2023 SKCA 12 Date: 2023-01-18 Between: His Majesty the King Appellant And Brenden Gardener Respondent Before: Caldwell, Tholl and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Court On appeal from: CRM-ES-00029-2021 (QB), Estevan Appeal heard: January 18, 2023 Counsel: Wade E.

McBride, K.C., for the Appellant Brenden Gardener appearing on his own behalf The Court [ 1 ] In this matter, the Crown appealed against a stay of proceedings imposed by a Court of Queen’s Bench trial judge on charges that Brenden Gardener had possessed cocaine for the purpose of trafficking (see: R v Gardener (17 June 2022) Weyburn, CRM-ES-00029- 2021 (Sask QB)). The trial judge stayed the charges because he found that Mr. Gardener’s right under s. 11(

b) of the Charter had been infringed in the context of a trial that had been delayed by the Provincial Court of Saskatchewan’s response to the Covid-19 pandemic. In a brief oral judgment, we granted the appeal, set aside the stay of proceedings and remitted the matter to the Court of King’s Bench for trial. These are our reasons for judgment. [ 2 ] The trial in this case was delayed, inter alia , because the preliminary hearing had been adjourned twice in compliance with the Covid-19 protocols then in place at the Provincial Court. When his charges came on for trial at the Court of Queen’s Bench, Mr. Gardener applied for a judicial stay on the basis that his s. 11(

b) Charter right to be tried within a reasonable time had been infringed. [ 3 ] Under R v Jordan , 2016 SCC 27 at paras 49–58 , [2016] 1 SCR 631, once the time to trial in a superior court exceeds the presumptive 30-month ceiling, the Crown bears the burden of establishing that the accused’s s. 11(

b) right has nonetheless not been infringed. It may rebut that presumption of unreasonable delay by establishing that there were exceptional circumstances in play, namely, something that lay outside the Crown’s control because it was reasonably unforeseen or reasonably unavoidable and could not reasonably have been remediated. An exceptional circumstance can be either a discrete event or a particularly complex case.

Where the presumptive ceiling has been exceeded and the Crown has failed to establish an exceptional circumstance that rebuts the presumption that the time to trial is unreasonable, a stay of proceedings will follow. (See R v Jordan , at paras 69–81 ) [ 4 ] In this case, the trial judge calculated the presumptive ceiling at 912 days. He determined that the time to the conclusion of a trial would be 1,318 days, but he characterised 216 days of that time as defence delay and the first Covid-19 adjournment (a 77-day delay from April 8 to June 23, 2020) as a discrete exceptional circumstance.

Applying the approach set out in R v Boehmer , 2019 SKCA 74 at paras 29-30 , [2020] 3 WWR 509, the trial judge deducted these periods from the total period under consideration leaving a remaining delay of 1,025 days. In performing this calculation, the trial judge did not deduct the 221-day delay resulting from the second Covid-19 adjournment from the total period under consideration, because he did not characterise it to be a discrete exceptional circumstance. Since the 1,025-day remaining delay that the trial judge had calculated exceeded the 912-day presumptive ceiling, he concluded that Mr.

Gardener’s right to be tried within a reasonable time under s. 11(

b) of the Charter had been infringed, and he therefore imposed a judicial stay of proceedings. [ 5 ] Although it raised several grounds when appealing from that decision, the Crown principally alleged that the trial judge erred by failing to characterise the second Covid-19 adjournment as a discrete exceptional circumstance.

Whether something amounts to an exceptional circumstance within the meaning of R v Jordan is a question of fact ( R v Spencer , 2022 SKCA 135 at para 34 ). [ 6 ] In answering the principal ground of appeal, we conclude that the trial judge erred by misapprehending the evidentiary record relevant to the delay application. Specifically, he failed to appreciate that Mr. Gardener had admitted to certain facts in the Provincial Court on February 26, 2021, when his counsel and the Crown agreed to adjourn the preliminary hearing to October 5, 2021.

These are the relevant parts of the exchange that occurred before the Provincial Court judge: MR. HOLDER [Mr. Gardener’s counsel]: Excuse me, Your Honour. Just to assist the Court, this was a matter that was set for preliminary this morning. I’ve been in touch with my friend and Madam Clerk and have discovered that the Saskatchewan COVID protocols in place right now require an adjournment. My – Madam Clerk was kind enough to forward some dates to me. And, if my friend is ready, I think we can go ahead and select one. MR. STUECK [Crown counsel]: Yes.

That would be acceptable to me. … [Discussion on available dates in October, November and December of 2021] THE COURT: Okay. The only reason that I’m looking at that earlier date is because I – I realize that these are indictable matters, and I think we need to go with an earlier date rather than a later date for a preliminary hearing.

… THE COURT: So the October 5 th is the – is the earliest date. That would be the Court’s preference to go to an earliest date. MR. HOLDER: Let us choose then – then, please. October 5? MR. STUECK: And – and also – oh, apologies to my friend. Also, as far as delay goes, I – I’ve had conversations with my friend and – and we both agree that this adjournment is (INDISCERNIBLE) exceptional circumstances due to COVID, and this is an exception that’s contemplated by Jordan . So that’s, kind of, how we’ve dealt with any sort of delay that would arise from this adjournment. MR. HOLDER: That’s correct, Your Honour.

In effect, if the endorsement could reflect that this was a – a COVID adjournment, then neither the Crown nor myself will have that delay at our doorstep. THE COURT: Okay. With that in mind, and I – you know, I do appreciate the fact that Jordan principle does take into consideration the possibility of circumstances that are beyond the control of all parties, including the Courts, is that October 5 th date still manageable for Crown and defence if we were to go with that date? MR. HOLDER: It is, Your Honour. And then we could also, frankly, say that we chose the earliest date. MR. STUECK: Thank you.

That would – that would be perfect. THE COURT: Then I will adjourn Mr. Gardener’s matters then on Information ending in 7373 to October the 5 th for a preliminary hearing. … On this basis, the Provincial Court record was endorsed to read: “COVID adjournment this is the earliest date available”. [ 7 ] While not an express waiver of the resultant delay, the transcript and the endorsement cannot be read in any way other than that Mr. Gardener had, through his counsel, admitted to the following facts: (

a) that an adjournment of the preliminary inquiry scheduled for February 26, 2021, was required under the Covid-19 protocol adopted by the Provincial Court; (

b) that the adjournment and the basis for it was a discrete exceptional circumstance within the meaning of R v Jordan ; and (

c) that the earliest available date for reconvening the preliminary hearing was October 5, 2021. [ 8 ] That is, Mr. Gardener took the position before the Provincial Court judge that the adjournment in question was a “Covid-19 adjournment” that amounted to a discrete exceptional circumstance such that the delay it caused should not fall at his or the Crown’s “doorstep”. In our view, these statements, having been made on the record, relieved the Crown of its burden to establish that the delay resulting from that adjournment was reasonably unforeseeable or reasonably unavoidable. Furthermore, Mr.

Gardener’s acknowledgement that October 5, 2021, was the earliest available date for reconvening the preliminary hearing is an admission that the duration of the delay was beyond the Crown’s control such that it could not reasonably be remediated. Again, while not an express waiver, the overall effect of Mr. Gardener’s statements on the record in the Provincial Court relieved the Crown of its burden of establishing—to the satisfaction of the Queen’s Bench trial judge—that the delay in question should not fall at its “doorstep”.

Furthermore, the evidentiary record does not support the conclusion that, after making the statements in question, Mr. Gardener actively advanced his right to a trial within a reasonable time or that he collaborated with the Crown in that regard (see R v Cody , 2017 SCC 31 at para 33 , [2017] 1 SCR 659; R v Jordan at para 138 ). [ 9 ] Although we do not attribute its cause solely to Mr.

Gardener, we are satisfied that the 221-day delay resulted in material part from his counsel’s statements in the Provincial Court, from the Crown’s reliance on those statements in the adjournment application and afterward, from the Provincial Court judge’s reliance on them when granting the adjournment, and from Mr. Gardener’s own failure to thereafter forthrightly resile from the statements or to take action to expedite the preliminary hearing or the trial.

In our assessment, the 221-day delay in question is properly characterised as a discrete exceptional circumstance. [ 10 ] As noted, the total delay in this case was 1,318 days. The trial judge characterised a total of 216 days as defence delay, leaving a net delay of 1,102 days. He also found that a 77-day delay was the result of a discrete exceptional circumstance, leaving an overall net delay of 1,025 days, which exceeded what he determined to be the presumptive ceiling of 912 days. We have found that the trial judge erred in his characterisation of the second Covid-19 adjournment.

In our assessment, that 221-day delay also resulted from a discrete exceptional circumstance. Under the approach in R v Boehmer , when that delay is deducted from the total, the net delay to the anticipated end of the trial in this case is 804 days, which is under the presumptive ceiling. For this reason, we concluded that trial judge had erred when he found that the presumptive ceiling had been exceeded and when he stated that Mr. Gardener’s s. 11(

b) Charter right had been infringed. [ 11 ] We therefore allowed the appeal, set aside the stay of proceedings, and remitted the matter to the Court of King’s Bench for trial.