R. v. Ukrainetz (K.D.), (2006) 284 Sask.R. 250 (PC)

JudgeGreen, P.C.J.
CourtProvincial Court of Saskatchewan (Canada)
Case DateAugust 29, 2006
JurisdictionSaskatchewan
Citations(2006), 284 Sask.R. 250 (PC);2006 SKPC 67

R. v. Ukrainetz (K.D.) (2006), 284 Sask.R. 250 (PC)

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. SE.050

The Queen v. Kirk Douglas Ukrainetz

(Information No. 24182246; 2006 SKPC 67)

Indexed As: R. v. Ukrainetz (K.D.)

Saskatchewan Provincial Court

Green, P.C.J.

August 29, 2006.

Summary:

Ukrainetz was charged with refusing to comply with a breath demand and impaired driving. At trial, he applied to exclude evidence under s. 24(2) of the Charter, alleging breaches of ss. 9 and 10(b) of the Charter. The Crown, objecting to being directed to proceed with its case, sought clarification of the s. 24(2) application procedure. The trial was adjourned. Subsequently, Ukrainetz applied under s. 24(1) of the Charter for a stay of proceedings and solicitor/client costs, alleging that the Crown's conduct amounted to an abuse of process and a violation of his right to make full answer and defence and that the 17.5 month delay from the date of the offence to the date of argument violated his right to be tried within a reasonable time. The Crown submitted that the notice requirements under the Constitutional Questions Act had not been complied with, both in terms of the time limits and the particulars required.

The Saskatchewan Provincial Court held that Ukrainetz had complied with the notice requirements. The ten month delay that was attributable to the Crown was reasonable. The Crown's application for clarification of the procedure for Charter s. 24(2) applications with a full legal brief and without prior notice to the defence was a breach of Ukrainetz's right to make full answer and defence. The court declined to stay the proceedings but ordered the Crown to pay costs of $1,300, representing both travel expenses and counsel fees due to the unnecessary adjournment. The court also set out the procedure it would follow in considering any applications under s. 24(2) during the trial.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - Ukrainetz was charged with driving offences - On the first trial date, the Crown obtained an adjournment - On the second trial date, the Crown applied for clarification of the procedure for Charter s. 24(2) applications with a full legal brief and without prior notice to the defence - Alleging that the Crown's conduct amounted to an abuse of process and a violation of his right to make full answer and defence, Ukrainetz sought a stay of proceedings and an order for solicitor/client costs - The Saskatchewan Provincial Court held that the Crown's request for an adjournment was reasonable - However, the failure to give notice of the Charter application placed Ukrainetz's counsel in a position where he had no choice but to seek an adjournment, resulting in additional costs and a breach of Ukrainetz's right to make full answer and defence - A stay of proceedings was not the only appropriate remedy - An order for costs was reasonably capable of removing the prejudice - The Crown was ordered to pay $1,300, representing both travel expenses and counsel fees due to the unnecessary adjournment - See paragraphs 32 to 51.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - [See Civil Rights - Topic 3133 ].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - Ukrainetz was charged with refusing to comply with a breath demand and impaired driving - He applied for a stay of proceedings, asserting that the 17.5 month delay from the date of the offence to the date of argument violated his right to be tried within a reasonable time under s. 11(b) of the Charter - The Saskatchewan Provincial Court dismissed the application - The delay was of a sufficient length to justify an inquiry - However, only approximately ten months was attributable to the Crown - This was analogous to an institutional delay and was acceptable in the provincial courts - See paragraphs 26 to 31.

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs - [See Civil Rights - Topic 3133 ].

Civil Rights - Topic 8506

Canadian Charter of Rights and Freedoms - Enforcement - Procedure - At his trial on charges of refusing to comply with a breath demand and impaired driving, Ukrainetz raised allegations of Charter breaches and applied under s. 24(2) to exclude evidence - The Crown, objecting to being directed to proceed with its case, sought clarification of the s. 24(2) application procedure - The Saskatchewan Provincial Court directed that, at the next trial date, the Crown was to proceed with its case, which included two witnesses - Following the defence's s. 24(2) application, the court would indicate whether the evidence was admissible - If so, the evidence would be admitted subject to the Charter challenge - Both Crown witnesses' evidence would be completed and a voir dire would be held - The defence bore the onus of proof - If the Crown did not agree to apply the witnesses' evidence to the voir dire, the defence was entitled to call those witnesses - An accused could not be denied the right to impeach the credibility of a Crown witness either at trial or on a voir dire - Following the voir dire, the defence would present its evidence followed by the Crown - The court anticipated reserving its decision on the Charter application - Following the decision, the Crown and then the defence would be called on to indicate whether they had further evidence - See paragraphs 52 to 85.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Civil Rights - Topic 8587.1 ].

Civil Rights - Topic 8587.1

Canadian Charter of Rights and Freedoms - Practice - Notice - General - Ukrainetz was charged with refusing to comply with a breath demand and impaired driving - He applied under s. 24(1) of the Charter for a stay of proceedings and solicitor/client costs, alleging that (i) the Crown's conduct amounted to an abuse of process and had breached s. 7 of the Charter and (ii) there had been an unreasonable delay contrary to s. 11(b) - The Crown submitted that the notice requirements under the Constitutional Questions Act had not been complied with, both in terms of the time limits and the particulars required - The Saskatchewan Provincial Court held that Ukrainetz had complied with the notice requirements - The Crown had actual notice of the application well in advance of the 14 day limit - Any prejudice arising from Ukrainetz's technical shortfall of not serving notice on the Constitutional Law Branch of Saskatchewan Justice in time had been addressed by allowing the Crown further time to file material - There were ample particulars to show the point to be argued on both issues - See paragraphs 16 to 25.

Criminal Law - Topic 5214.9

Evidence and witnesses - Admissibility and relevancy - Voir dire - General (incl. time for) - [See Civil Rights - Topic 8506 ].

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. 26].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1; 9 C.R.(4th) 277, refd to. [para. 34].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, refd to. [para. 41].

R. v. Regan (G.A.) (2002), 282 N.R. 1; 210 N.S.R.(2d) 63; 629 A.P.R. 63; 209 D.L.R.(4th) 41; 161 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 41].

R. v. Kelln (D.D.) (2003), 236 Sask.R. 167; 2003 SKQB 348, refd to. [para. 43].

R. v. Henkel (J.E.) et al. (2003), 320 A.R. 206; 288 W.A.C. 206; 2003 ABCA 23, refd to. [para. 44].

R. v. Foster (D.), [2003] O.T.C. 230; 64 O.R.(3d) 152 (Sup. Ct.), refd to. [para. 49].

R. v. Pelletier (J.G.) (1995), 128 Sask.R. 214; 85 W.A.C. 214; 97 C.C.C.(3d) 139 (C.A.), refd to. [para. 56].

R. v. Kutynec (1992), 52 O.A.C. 59; 12 C.R.(4th) 152 (C.A.), refd to. [para. 56].

R. v. Dwernychuk (M.K.) (1992), 135 A.R. 31; 33 W.A.C. 31; 77 C.C.C.(3d) 385 (C.A.), refd to. [para. 61].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1, refd to. [para. 63].

R. v. Pashovitz (1987), 59 Sask.R. 165 (C.A.), refd to. [para. 67].

R. v. Kennon (1987), 63 Sask.R. 31 (Q.B.), refd to. [para. 67].

R. v. Stroeder (1988), 64 Sask.R. 287 (Q.B.), refd to. [para. 67].

R. v. Checkosis, [1999] S.J. No. 833 (Prov. Ct.), refd to. [para. 70].

R. v. Loveman (1992), 52 O.A.C. 94; 71 C.C.C.(3d) 123 (C.A.), refd to. [para. 71].

R. v. Habhab (I.) (1997), 197 A.R. 161 (Prov. Ct.), refd to. [para. 71].

R. v. Stecyk (K.) (2002), 228 Sask.R. 282 (Q.B.), refd to. [para. 72].

R. v. Field (J.A.) (2001), 204 Sask.R. 161 (Prov. Ct.), refd to. [para. 73].

Montgomery v. R. - see Montgomery v. Ebert, P.C.J., et al.

Montgomery v. Ebert, P.C.J., et al. (2006), 232 Sask.R. 313; 2006 SKQB 338, refd to. [para. 77].

R. v. Coles (M.F.) (2005), 374 A.R. 234 (Prov. Ct.), refd to. [para. 82].

Counsel:

Barrie Stricker, for the Crown;

Ronald Piché, for the defence.

These applications were heard by Green, P.C.J., of the Saskatchewan Provincial Court, who delivered the following interim decision on August 29, 2006.

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4 practice notes
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    • July 20, 2009
    ...(C.A.), refd to. [para. 43]. R. v. Montgrand (R.H.) (1995), 135 Sask.R. 287 (Prov. Ct.), refd to. [para. 44]. R. v. Ukrainetz (K.D.) (2006), 284 Sask.R. 250 (Prov. Ct.), refd to. [para. 45]. R. v. Singer (D.G.) (1999), 176 Sask.R. 266; 25 C.R.(5th) 374 (Q.B.), refd to. [para. 47]. R. v. For......
  • R. v. Ukrainetz (K.D.), (2006) 288 Sask.R. 42 (PC)
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    • Saskatchewan Provincial Court of Saskatchewan (Canada)
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    ...with, both in terms of the time limits and the particulars required. The Saskatchewan Provincial Court, in a decision reported at 284 Sask.R. 250, held that Ukrainetz had complied with the notice requirements. The ten month delay that was attributable to the Crown was reasonable. The Crown'......
  • R. v. Besharah (S.S.), (2009) 340 Sask.R. 41 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • June 26, 2009
    ...16]. R. v. Kutynec (1992), 52 O.A.C. 59; 70 C.C.C.(3d) 289; 12 C.R.(4th) 152 (C.A.), refd to. [para. 16]. R. v. Ukrainetz (K.D.) (2006), 284 Sask.R. 250; 2006 SKPC 67, refd to. [para. R. v. Stecyk (K.) (2002), 228 Sask.R. 282; 2002 SKQB 365, refd to. [para. 16]. Counsel: Andrea Newsham, for......
  • R. v. J.P., 2008 SKPC 141
    • Canada
    • Saskatchewan Provincial Court of Saskatchewan (Canada)
    • October 30, 2008
    ...[1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165; 49 C.C.C.(3d) 289; 70 C.R.(3d) 208, refd to. [para. 29]. R. v. Ukrainetz (K.D.) (2006), 284 Sask.R. 250; 2006 SKPC 67, refd to. [para. R. v. Gibb (B.R.), [1999] 8 W.W.R. 644; 187 Sask.R. 266; 30 C.R.(5th) 189; 1999 SKQB 170, refd to. [para. ......
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  • R. v. Knoedler (N.F.), 2009 SKPC 66
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    • Saskatchewan Provincial Court of Saskatchewan (Canada)
    • July 20, 2009
    ...(C.A.), refd to. [para. 43]. R. v. Montgrand (R.H.) (1995), 135 Sask.R. 287 (Prov. Ct.), refd to. [para. 44]. R. v. Ukrainetz (K.D.) (2006), 284 Sask.R. 250 (Prov. Ct.), refd to. [para. 45]. R. v. Singer (D.G.) (1999), 176 Sask.R. 266; 25 C.R.(5th) 374 (Q.B.), refd to. [para. 47]. R. v. For......
  • R. v. Ukrainetz (K.D.), (2006) 288 Sask.R. 42 (PC)
    • Canada
    • Saskatchewan Provincial Court of Saskatchewan (Canada)
    • November 17, 2006
    ...with, both in terms of the time limits and the particulars required. The Saskatchewan Provincial Court, in a decision reported at 284 Sask.R. 250, held that Ukrainetz had complied with the notice requirements. The ten month delay that was attributable to the Crown was reasonable. The Crown'......
  • R. v. Besharah (S.S.), (2009) 340 Sask.R. 41 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • June 26, 2009
    ...16]. R. v. Kutynec (1992), 52 O.A.C. 59; 70 C.C.C.(3d) 289; 12 C.R.(4th) 152 (C.A.), refd to. [para. 16]. R. v. Ukrainetz (K.D.) (2006), 284 Sask.R. 250; 2006 SKPC 67, refd to. [para. R. v. Stecyk (K.) (2002), 228 Sask.R. 282; 2002 SKQB 365, refd to. [para. 16]. Counsel: Andrea Newsham, for......
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    • October 30, 2008
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