R. v. Pankiw (J.K.), (2016) 480 Sask.R. 17 (CA)

• Judge: Ottenbreit, Caldwell and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 17, 2015
• Jurisdiction: Saskatchewan
• Citations: (2016), 480 Sask.R. 17 (CA);2016 SKCA 60

R. v. Pankiw (J.K.) (2016), 480 Sask.R. 17 (CA);

    669 W.A.C. 17

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. MY.007

James Kyle Pankiw (appellant) v. Her Majesty the Queen (respondent)

(CACR2544; 2016 SKCA 60)

Indexed As: R. v. Pankiw (J.K.)

Saskatchewan Court of Appeal

Ottenbreit, Caldwell and Ryan-Froslie, JJ.A.

May 3, 2016.

Summary:

The Saskatchewan Provincial Court, in a decision reported at (2014), 431 Sask.R. 128, found Pankiw guilty of driving while over .08. Pankiw appealed from that decision. Pankiw also appealed from the trial judge's decision, reported at (2013), 431 Sask.R. 108, which dismissed his application alleging a breach of his right to be tried within a reasonable time under s. 11(b) of the Charter.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 462 Sask.R. 217 dismissed the appeal. Pankiw appealed.

The Saskatchewan Court of Appeal held that Pankiw's position with respect to the issue of unreasonable delay had merit. The court granted him leave to appeal, allowed the appeal and entered a judicial stay of proceedings pursuant to s. 24(1) of the Charter.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - [See Civil Rights - Topic 3270 ].

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - A summary conviction appeal judge upheld Pankiw's conviction for driving while over .08 - Pankiw appealed - It took 27 months for Pankiw's charges to proceed to trial - Pankiw asserted that most of that time was due to the Crown's failure to provide full disclosure and, as a result, his s. 11(b) Charter right to trial within a reasonable time was breached - The Saskatchewan Court of Appeal allowed the appeal - The summary conviction appeal judge's conclusions ignored a number of legal errors in the trial judge's Morin analysis, including: (i) his failure to attribute all the delay relating to the Crown's failure to make disclosure to the Crown, (ii) his determination that Pankiw suffered "minimal" prejudice as a result of the delay, and (iii) the effect of those errors on the trial judge's balancing of the interests protected by s. 11(b) of the Charter - The trial judge's errors in the characterization and attribution of the delay affected his prejudice analysis and, by necessity, also affected his balancing of the interests protected by s. 11(b) of the Charter and thus his ultimate conclusion that the delay was not unreasonable - Given that it took 27 months to complete a trial which should have been concluded within eight to 10 months, that 13 to 14 months of that delay were attributable to the Crown's failure to disclose, and given the prejudice (actual and inferred) suffered by Pankiw, the balance between society's interest in seeing individuals who drink and drive brought to trial and Pankiw's s. 11(b) right to trial within a reasonable time was tipped in Pankiw's favour - The delay was unreasonable - The appropriate remedy was a stay of proceedings - See paragraphs 18 to 64.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3270 ].

Counsel:

Mark Brayford, Q.C., and Brian R. Pfefferle, for the appellant;

W. Dean Sinclair, Q.C., for the respondent.

This appeal was heard on September 17, 2015, before Ottenbreit, Caldwell and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Ryan-Froslie, J.A., on May 3, 2016.