R. v. Shepherd (S.J.), 2014 SKQB 83

• Judge: Gabrielson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 24, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 83;(2014), 440 Sask.R. 240 (QB)

R. v. Shepherd (S.J.) (2014), 440 Sask.R. 240 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. AP.036

Her Majesty the Queen (appellant) v. Spencer John Shepherd (respondent)

(2013 Q.B.C.A. No. 5; 2014 SKQB 83)

Indexed As: R. v. Shepherd (S.J.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Gabrielson, J.

March 24, 2014.

Summary:

On October 28, 2009, the accused was charged with impaired driving offences that occurred on October 22, 2009. A trial and voir dire commenced on October 25, 2010 and continued on May 20, 2011. The voir dire was adjourned for four months for a decision. On September 28, 2011, the judge became ill and could not continue. On September 30, 2011, the accused elected to have a new trial, as provided for under s. 669.2(3) of the Criminal Code, rather than having a new judge proceed on the basis of the transcript of evidence and argument from the voir dire. The trial was set for April 24, 2012. However, the defence was unavailable on that date and a new date of December 19, 2012 was set. On that date, the accused applied for a stay of the proceedings due to unreasonable delay, contrary to s. 11(b) of the Charter.

The Saskatchewan Provincial Court, in a decision reported at (2013), 424 Sask.R. 31, allowed the accused's application, entering a stay of proceedings. The Crown appealed.

The Saskatchewan Court of Queen's Bench allowed the appeal. The stay of proceedings was set aside and the matter was remitted for trial.

Civil Rights - Topic 3262

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Waiver of right - On October 28, 2009, the accused was charged with impaired driving offences that occurred on October 22, 2009 - A trial and voir dire commenced on October 25, 2010 and continued on May 20, 2011 - The voir dire was adjourned for four months for a decision - On September 28, 2011, the judge became ill and could not continue - On September 30, 2011, the accused elected to have a new trial, as provided for under s. 669.2(3) of the Criminal Code - The trial was set for April 24, 2012 - However, the defence was unavailable on that date and a new date of December 19, 2012 was set - On that date, the accused applied for a stay of the proceedings due to unreasonable delay, contrary to s. 11(b) of the Charter - The trial judge allowed the application, rejecting the Crown's argument that the adjournments had been by consent and that the accused, by consenting, had waived his rights under s. 11(b) - The trial judge held that consents to trial dates made without reference to any intent to waive s. 11(b) rights were merely "acquiescence to the inevitable and not a waiver" - On the Crown's appeal, the Saskatchewan Court of Queen's Bench stated, "While I may not have made the same finding of fact that there had been no waiver of the delay when there was an endorsement of consent, I cannot say that the trial judge's conclusion in this regard is one which a trial judge acting reasonably could not have achieved, and I therefore defer to his finding in this regard." - See paragraphs 18 to 22.

Civil Rights - Topic 3264

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Denial of right - On October 28, 2009, the accused was charged with impaired driving offences that occurred on October 22, 2009 - A trial and voir dire commenced on October 25, 2010 and continued on May 20, 2011 - The voir dire was adjourned for four months for a decision - On September 28, 2011, the judge became ill and could not continue - On September 30, 2011, the accused elected to have a new trial, as provided for under s. 669.2(3) of the Criminal Code - The trial was set for April 24, 2012 - However, the defence was unavailable on that date and a new date of December 19, 2012 was set - On that date, the accused applied for a stay of the proceedings due to unreasonable delay, contrary to s. 11(b) of the Charter - The trial judge allowed the application, finding that there had been at least 23.25 months of delay that was not attributable to the accused and had not been specifically waived - While the delay was the result of an extraordinary and unforeseen event (the judge's illness), its total length was a function of the unavailability of court resources - The Saskatchewan Court of Queen's Bench allowed the Crown's appeal - At least a part of the period between September 30, 2011, and April 24, 2011, should have been considered to be part of the inherent delay caused by the original trial judge's illness or, alternatively, as part of a separate time frame required for the retrial - In that case, the total delay was not unreasonable - In failing to consider any of that time as inherent or neutral delay, the trial judge erred in law - The stay of proceedings was set aside and the matter remitted for trial - See paragraphs 23 to 32.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The trial judge allowed an accused's application for a stay of the proceedings due to unreasonable delay, contrary to s. 11(b) of the Charter - The Crown appealed - The Saskatchewan Court of Queen's Bench stated, "the trial judge correctly assessed the length of time from the date of the charge (October 28, 2009) to the date set for the trial (December 19, 2012) as approximately 37 months. ... [T]he Crown conceded that such a period of time is sufficiently long so as to warrant an inquiry into the reasonableness of the delay. Based upon the case authorities, including the Pidskalny case, such a concession was appropriate." - See paragraphs 16 and 17.

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 3264 ].

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 - On October 28, 2009, the accused was charged with impaired driving offences that occurred on October 22, 2009 - A trial and voir dire commenced on October 25, 2010 and continued on May 20, 2011 - The voir dire was adjourned for four months for a decision - On September 28, 2011, the judge became ill and could not continue - On September 30, 2011, the accused elected to have a new trial, as provided for under s. 669.2(3) of the Criminal Code, rather than having a new judge proceed on the basis of the transcript of evidence and argument from the voir dire - The trial was set for April 24, 2012 - However, the defence was unavailable on that date and a new date of December 19, 2012 was set - On that date, the accused applied for a stay of the proceedings due to unreasonable delay, contrary to s. 11(b) of the Charter - In allowing the application, the trial court rejected the Crown's assertion that the period of time from September 30, 2011 to April 24, 2012 should be removed from the calculation because the accused had made a tactical decision to have a new trial - It could hardly be called a tactical choice to follow the Criminal Code - On the Crown's appeal, the Saskatchewan Court of Queen's Bench stated, "[A]lthough it may have been tactical in nature, the action of the accused in my opinion would not be considered to be unreasonable." - See paragraphs 33 and 34.

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 - In allowing an accused's application for a stay of the proceedings due to unreasonable delay, contrary to s. 11(b) of the Charter, the trial judge concluded that "the total length of time is a function of the unavailability of court resources, because the average time to trial of all the cases set in 2009 and 2010 was excessive" - In a footnote to his reasons, the judge stated that he had personally assessed statistics concerning the time to trial in the Provincial Court in Saskatoon and that the judges of the court considered the length of time to be too long - On the Crown's appeal, the Saskatchewan Court of Queen's Bench stated that it appeared that the trial judge had taken judicial notice of the statistics and/or availability of trial dates in Saskatoon - However, the statistics were not so notorious or generally accepted as to not be a subject of debate - Nor were they capable of immediate and accurate demonstration by resort to sources of indisputable accuracy - Further, the trial judge denied the Crown the opportunity to call evidence in response to the statistics - Finally, the trial judge appeared to have interpreted the statistics as to suggest that anything past the threshold became unreasonable delay - In using the institutional guidelines as if they were yardsticks, the trial judge had committed an error of law - See paragraphs 36 and 37.

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 - On October 28, 2009, the accused was charged with impaired driving offences that occurred on October 22, 2009 - A trial and voir dire commenced on October 25, 2010 and continued on May 20, 2011 - The voir dire was adjourned for four months for a decision - On September 28, 2011, the judge became ill and could not continue - On September 30, 2011, the accused elected to have a new trial, as provided for under s. 669.2(3) of the Criminal Code - The trial was set for April 24, 2012 - However, the defence was unavailable on that date and a new date of December 19, 2012 was set - On that date, the accused applied for a stay of the proceedings due to unreasonable delay, contrary to s. 11(b) of the Charter - The trial court allowed the accused's application, finding, inter alia, that the accused had suffered some prejudice over and above the prejudice that this right was designed to protect against - In particular, the delay had affected his health and income, among other things - In allowing the Crown's appeal, the Saskatchewan Court of Queen's Bench stated that the trial judge's findings regarding prejudice were reasonable and transparent and, therefore, subject to deference - However, the degree of prejudice "was not major" - See paragraph 38.

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 - On October 28, 2009, the accused was charged with impaired driving offences that occurred on October 22, 2009 - A trial and voir dire commenced on October 25, 2010 and continued on May 20, 2011 - The voir dire was adjourned for four months for a decision - On September 28, 2011, the judge became ill and could not continue - On September 30, 2011, the accused elected to have a new trial, as provided for under s. 669.2(3) of the Criminal Code - The trial was set for April 24, 2012 - However, the defence was unavailable on that date and a new date of December 19, 2012 was set - On that date, the accused applied for a stay of the proceedings due to unreasonable delay, contrary to s. 11(b) of the Charter - The trial court allowed the accused's application - The Saskatchewan Court of Queen's Bench allowed the Crown's appeal - The trial judge erred in failing to consider the societal interest in having charges involving drinking and driving offences determined on their merits - By failing to consider or balance society's interests against the length of delay and the degree of prejudice experienced by the accused, the trial judge erred in law - See paragraphs 39 to 43.

Civil Rights - Topic 3270.06

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Where judge becomes ill - [See Civil Rights - Topic 3264 ].

Civil Rights - Topic 8380.5

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Appeals (incl. standard of review) - The trial judge allowed an accused's application for a stay of the proceedings due to unreasonable delay, contrary to s. 11(b) of the Charter - The Crown appealed - The Saskatchewan Court of Queen's Bench reviewed the trial judge's determination that the delay in the case was unreasonable on a standard of correctness - In reviewing the trial judge's finding that the accused was prejudiced by the delay, the court applied a standard of reasonableness - In determining whether the judicial stay was an appropriate remedy, the standard of correctness applied - See paragraphs 9 to 13.

Civil Rights - Topic 8599

Canadian Charter of Rights and Freedoms - Practice - Appeals - Standard of review - [See Civil Rights - Topic 8380.5 ].

Evidence - Topic 2206

Special modes of proof - Judicial notice - General principles - Criminal cases - [See second Civil Rights - Topic 3270 ].

Evidence - Topic 2230

Special modes of proof - Judicial notice - Particular matters - General principles - [See second Civil Rights - Topic 3270 ].

Cases Noticed:

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1, refd to. [para. 5].

R. v. Helm (B.E.) (2011), 368 Sask.R. 115; 2011 SKQB 32, refd to. [para. 6].

R. v. MacDougall (P.A.), [1998] 3 S.C.R. 45; 231 N.R. 147; 168 Nfld. & P.E.I.R. 83; 517 A.P.R. 83; 165 D.L.R.(4th) 193, refd to. [para. 6].

R. v. Duncan (D.J.) (2012), 404 Sask.R. 213; 2012 SKQB 362, refd to. [para. 6].

R. v. Rogalsky (E.J.) et al. (1994), 125 Sask.R. 271; 81 W.A.C. 271; 95 C.C.C.(3d) 41 (C.A.), refd to. [para. 6].

R. v. Allen (H.D.) (1996), 92 O.A.C. 345; 110 C.C.C.(3d) 331; 1 C.R.(5th) 347 (C.A.), refd to. [para. 6].

R. v. Padda (R.) et al., [2010] O.T.C. Uned. 478; 2010 ONSC 478, refd to. [para. 6].

R. v. Wong, 2012 ONCJ 589, refd to. [para. 6].

R. v. Lukomski (2005), 17 M.V.R.(5th) 254; 2005 ONCJ 90, refd to. [para. 6].

R. v. Richards (E.) (2012), 405 Sask.R. 127; 563 W.A.C. 127; 2012 SKCA 120, refd to. [para. 6].

R. v. Piapot (J.L.) (2014), 433 Sask.R. 109; 602 W.A.C. 109; 2014 SKCA 9, refd to. [para. 6].

R. v. Poletz (R.B.) (2014), 433 Sask.R. 155; 602 W.A.C. 155; 2014 SKCA 16, refd to. [para. 6].

R. v. Wetzel (D.B.) (2013), 427 Sask.R. 261; 591 W.A.C. 261; 2013 SKCA 143, refd to. [para. 8].

R. v. Bellusci (R.), [2012] 2 S.C.R. 509; 433 N.R. 135; 2012 SCC 44, refd to. [para. 8].

R. v. Boudreault (D.), [2012] 3 S.C.R. 157; 436 N.R. 343; 2012 SCC 56, refd to. [para. 8].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81; 74 D.L.R.(4th) 355, refd to. [para. 8].

R. v. Bennett (1991), 46 O.A.C. 99; 64 C.C.C.(3d) 449; 6 C.R.(4th) 22 (C.A.), refd to. [para. 8].

R. v. Eiswerth (K.J.) (1999), 176 Sask.R. 202 (Q.B.), refd to. [para. 8].

R. v. Freitas (1987), 63 Sask.R. 97 (Q.B.), refd to. [para. 8].

R. v. Sapara (G.) (1996), 147 Sask.R. 111 (Q.B.), refd to. [para. 8].

R. v. Wehage and Loewen (1990), 86 Sask.R. 219 (Q.B.), refd to. [para. 8].

R. v. Pusic (J.) and Juric (H.) (1996), 13 O.T.C. 260; 30 O.R.(3d) 692 (Gen. Div.), refd to. [para. 8].

R. v. Seright (J.) (2006), 280 Sask.R. 265; 2006 SKQB 192, refd to. [para. 8].

R. v. Montgrand (H.) (2003), 228 Sask.R. 309; 2003 SKPC 2, refd to. [para. 8].

R. v. Moberly (B.D.) (2003), 229 Sask.R. 273; 2003 SKPC 29, refd to. [para. 8].

R. v. S.M. (2003), 230 Sask.R. 25; 2003 SKPC 39, refd to. [para. 8].

R. v. Shendaruk, 2004 SKQB 44, refd to. [para. 8].

R. v. McAllister (R.S.) (2005), 263 Sask.R. 47; 2005 SKPC 56, refd to. [para. 8].

R. v. Anderson (M.C.) et al. (2007), 303 Sask.R. 160; 2007 SKQB 352, refd to. [para. 8].

R. v. Godin (M.), [2009] 2 S.C.R. 3; 389 N.R. 1; 252 O.A.C. 377; 2009 SCC 26, refd to. [para. 8].

R. v. Pighin (B.C.), [2006] A.R. Uned. 643; 38 M.V.R.(5th) 68; 2006 ABPC 280, refd to. [para. 8].

R. v. Nemanic (M.M.), [2009] A.R. Uned. 635; 2009 ABPC 279, refd to. [para. 8].

R. v. Pidskalny (W.P.) (2013), 417 Sask.R. 124; 580 W.A.C. 124; 299 C.C.C.(3d) 396; 2013 SKCA 74, refd to. [para. 12].

R. v. Barros (R.), [2013] 10 W.W.R. 335; 562 A.R. 37; 2013 ABQB 210, refd to. [para. 31].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 2001 SCC 32, refd to. [para. 36].

R. v. Biancofiore (N.F.) (1997), 103 O.A.C. 292; 119 C.C.C.(3d) 344; 10 C.R.(5th) 200 (C.A.), refd to. [para. 41].

Counsel:

William J. Collins, for the appellant;

Michael W. Owens, for the respondent.

This appeal was heard by Gabrielson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on March 24, 2014.