R. v. Shepherd (S.J.), (2014) 446 Sask.R. 253 (CA)

• Judge: Klebuc, Caldwell and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 21, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 446 Sask.R. 253 (CA);2014 SKCA 123

R. v. Shepherd (S.J.) (2014), 446 Sask.R. 253 (CA);

    621 W.A.C. 253

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. NO.033

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

(CACR2420; 2014 SKCA 123)

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

Saskatchewan Court of Appeal

Klebuc, Caldwell and Herauf, JJ.A.

November 21, 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, in a decision reported at (2014), 440 Sask.R. 240, allowed the appeal. The stay of proceedings was set aside and the matter was remitted for trial. The accused sought leave to appeal.

The Saskatchewan Court of Appeal allowed the accused's application for leave to appeal and dismissed the appeal.

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 the accused's application for a stay of the proceedings due to unreasonable delay, contrary to s. 11(b) of the Charter, finding that the delay of 37 months, of which 23.25 months were attributable to the Crown, was too long - The summary conviction appeal court allowed the Crown's appeal, finding that the trial court had erred by (i) attributing the delay caused by the original trial judge's illness as "institutional delay" attributable to the Crown, rather than "inherent delay"; (ii) taking judicial notice of internal statistics regarding the time to get to trial; and (iii) failing to balance the prejudice suffered by the accused against society's interest in a trial on the merits - A new trial was ordered - The Saskatchewan Court of Appeal affirmed the decision - With the seven month time period attributable to the judge's illness classified as neutral, the remaining period of delay was well within reason - The trial court's use of internal court statistics was improper - The records were not so notorious as to be generally known so as to meet the requirement of judicial notice - The trial judge should have confined his analysis to the evidence adduced on the application - Finally, the appeal court correctly found that the prejudice suffered by the accused was offset by societal interests.

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 - [See Civil Rights - Topic 3265 ].

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 3265 ].

Courts - Topic 587

Judges - Duties - To decide according to evidence and pleadings - [See Civil Rights - Topic 3265 ].

Evidence - Topic 2206

Special modes of proof - Judicial notice - General principles - Criminal cases - [See Civil Rights - Topic 3265 ].

Evidence - Topic 2230

Special modes of proof - Judicial notice - Particular matters - General principles - [See Civil Rights - Topic 3265 ].

Cases Noticed:

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, refd to. [para. 5].

Counsel:

Michael Owens, for the appellant;

Andrew Davis, for the respondent.

This application for leave to appeal and appeal were heard and determined orally on November 21, 2014, by Klebuc, Caldwell and Herauf, JJ.A., of the Saskatchewan Court of Appeal. On November 24, 2014, Herauf, J.A., delivered the following written reasons for the court.